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THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
(jAJLAJl sTI^frSlttdU ^><
■
' ■
CASES
ON
THE LAW OF EVIDENCE
SELECTED FROM DECISIONS OF
ENGLISH AND AMERICAN COURTS
BY EDWARD W. HINTON
^ w
PROFESSOR OF LAW IN THE UNIVERSITY OF CHICAGO
AMERICAN CASEBOOK SERIES
WILLIAM R. VANCE
GENERAL EDITOR
ST. PAUL
WEST PUBLISHING COMPANY
1919
Copyright, 1919
BY
WEST PUBLISHING COMPANY
(Hint.Ev.)
T
H5313*
1919
THE AMERICAN CASEBOOK SERIES
The- first of the American Casebook Series, Mikell's Cases on Crim-
inal Law, issued in December, 1908, contained in its preface an able
argument by Mr. James Brown Scott, the General Editor of the Se-
ries, in favor of the "case method of law teaching. Until 1915 this
preface appeared in each of the volumes published in the series.
But the teachers of law have moved onward, and the argument
that was necessary in 1908 has now become needless. That such
is the case becomes strikingly manifest to one examining three im-
portant documents that fittingly mark- the progress of legal education
in America. In 1893 the United States Bureau of Education pub-
lished a report on Legal Education prepared by the American Bar As-
sociation's Committee on Legal Education, and manifestly the work
of that Committee's accomplished chairman, William G. Hammond,
in which the three methods of teaching law then in vogue — that is, by
lectures, by text-book, and by selected cases — were described and com-
mented upon, but without indication of preference. The next report
of the Bureau of Education dealing with legal education, published
in 1914, contains these unequivocal statements:
"To-day the case method forms the principal, if not the exclusive,
method of teaching in nearly all of the stronger law schools of the
country. Lectures on special subjects are of course still delivered in
all law schools, and this doubtless always will be the case. But for
staple instruction in the important branches of common law the case
has proved itself as the best available material for use practically ev-
erywhere. * * * The case method is to-day the principal method
of instruction in the great majority of the schools of this country."
But the most striking evidence of the present stage of development
of legal instruction in American Law Schools is to be found in the
special report, made by Professor Redlich to the Carnegie Foundation
for the Advancement of Teaching, on "The Case Method in American
Law Schools." Professor Redlich, of the Faculty of Law in the Uni-
versity of Vienna, was brought to this country to make a special study
of methods of legal instruction in the United States from the stand-
point of one free from those prejudices necessarily engendered in
American teachers through their relation to the struggle for supremacy
so long, and at one time so vehemently, waged among the rival sys-
tems. From this masterly report, so replete with brilliant analysis
and discriminating comment, the following brief extracts are taken.
Speaking of the text-book method Professor Redlich says:
"The principles are laid down in the text book and in the profes-
sor's lectures, ready made and neatly rounded, the predigested essence
(iii)
(Z
567350
iV PREFACE
of many judicial decisions. The pupil has simply to accept them and
to inscribe them so far as possible in his memory. In this way the
scientific element of instruction is apparently excluded from the very
first. Even though the representatives of this instruction certainly do
regard law as a science — that is to say, as a system of thought, a group-
ing of concepts to be satisfactorily explained by historical research and
logical deduction — they are not willing to teach this science, but only
its results. The inevitable danger which appears to accompany this
method of teaching is that of developing a mechanical, superficial in-
struction in abstract maxims, instead of a genuine intellectual probing
of the subject-matter of the law, fulfilling the requirements of a
science."
Turning to the case method Professor Redlich comments as follows :
"It emphasizes the scientific character of legal thought ; it goes now
a step further, however, and demands that law, just because it is a
science, must also be taught scientifically. From this point of view it
very properly rejects the elementary school type of existing legal edu-
cation as inadequate to develop the specific legal mode of thinking, as
inadequate to make the basis, the logical foundation, of, the separate
legal principles really intelligible to the students. Consequently, as the
method was developed, it laid the main emphasis upon precisely that
aspect of the training which the older text-book school entirely neg-
lected— rthe training of the student in intellectual independence, in in-
dividual thinking, in digging out the principles through penetrating
analysis of the material found within separate cases; material which
contains, all mixed in with one another, both the facts, as life creates
them, which generate the law, and at the same time rules of the law
itself', component parts of the general system. In the fact that, as has
been 'said before, it has actually accomplished this purpose, lies the
great success of the case method. For it really teaches the pupil to
think in the way that any practical lawyer— whether dealing with writ-
ten or with unwritten law — ought to and has to think. It prepares the
student in precisely the way which, in a country of case law, leads to
full powers of legal understanding and legal acumen; that is to say,
by making the law pupil familiar with the law through incessant prac-
tice in the analysis of law cases, where the concepts, principles, and
rules of Anglo-American law are recorded, not as dry abstractions, but
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating,
social and economic life of man. Thus in the modern American law
school professional practice' is preceded by a genuine course of study,
the methods of which are perfectly adapted to the nature of the com-
mon law."
The general purpose and scope of this series were clearly stated in
the original announcement:
"The General Editor takes pleasure in announcing a series of schol-
arly casebooks, prepared with special reference to the needs and limi-
PREFACE] V
Nations of the classroom, on the fundamental subjects of legal educa-
tion, which, through a judicious rearrangement of emphasis, shall pro-
vide adequate training' combined with a thorough knowl of the
general principles of the subject. The collection will develop the law
historically and scientifically; English cases will give the origin
development of the law in England; American cases will trace its ex-
pansion and modification in America ; notes and annotations will sug-
gest phases omitted in the printed case. Cumulative references will be
avoided, for the footnote may not hope to rival the digest. The law
will thus be presented as an organic growth, and the necessary con-
nection between the past and the present will be obvious.
''The importance and difficulty of the subject as well as the time that
can properly be devoted to it will be carefully considered so that each
book may be completed within the time allotted to the particular sub-
ject. * * * If it be granted that all, or nearly all, the studies re-
quired for admission to the bar should be studied in course by every
student — and the soundness of this contention can hardly be seriously
doubted — it follows necessarily that the preparation and publication of
collections of cases exactly adapted to the purpose would be a genuine
and by no means unimportant service to the cause of legal education.
And this result can best be obtained by the preparation of a systematic
series of casebooks constructed upon a uniform plan under the super-
vision of an editor in chief. * * *
"The preparation of the casebooks has been intrusted to experienced
and" well-known teachers of the various subjects included, so that the
experience of. the classroom and the needs of the students will furnish
a sound basis of selection."
Since this announcement of the Series was first made there have
been published books on the following subjects :
Administrative Law. By Ernst Freund, Professor of Law in the
University of Chicago.
Agency, including Master and Servant. Second Edition. By Edwin C.
Goddard, Professor of Law in the University of Michigan.
Bills and Notes. Second Edition. By Howard L. Smith, Professor of
Law in the University of Wisconsin, and Underhill Moore, Pro-
fessor of Law in Columbia University.
Carriers. By Frederick Green, Professor of Law in the University of
Illinois.
Conflict of Laws. Second Edition. By Ernest G. Lorenzen, Pro-
fessor of Law in Yale University.
Constitutional Law. By James Parker Hall, Dean of the Faculty of
Law in the University of Chicago.
Contracts. By Arthur L. Corbin, Professor of Law in Yale University.
VI PREFACE
Corporations. Second Edition. By Harry S. Richards, Dean of the
Faculty of Law in the University of Wisconsin.
Criminal Law. By William E. Mikell, Dean of the Faculty of Law in
the University of Pennsylvania.
Criminal Procedure. By William E. Mikell, Dean of the Faculty of
Law in the University of Pennsylvania.
Damages. By Floyd R. Mechem, Professor of Law in the University
of Chicago, and Barry Gilbert, of the Chicago Bar.
Equity. By George H. Boke, formerly Professor of Law in the Uni-
versity of California.
Equity. By Walter Wheeler Cook, Professor of Law in Yale Uni-
versity. Volumes 1 and 3. Volume 2 in preparation.
Evidence. By Edward W. Hinton, Professor of Law in the Universi-
ty of Chicago.
Insurance. By William R. Vance, Professor of Law in Yale Uni-
versity.
International Law. By James Brown Scott, Lecturer on International
Law and the Foreign Relations of the United States in the School
of Foreign Service, Georgetown University.
Legal Ethics, Cases and Other Authorities on. By George P. Costigan,
Jr., Professor of Law in the University of California.
Oil and Gas. By Victor H. Kulp, Professor of Law in the University
of Oklahoma.
Partnership. By Eugene A. Gilmore, Professor of Law in the Uni-
versity of Wisconsin.
Persons (including Marriage and Divorce). By Albert M. Kales, late of
the Chicago Bar, and Chester G. Vernier, Professor of Law in
Stanford University.
Pleading (Common Law). By Clarke B. Whittier, Professor of Law
in Stanford University, and Edmund M. Morgan, Professor of
Law in Yale University.
Property (Future Interests). By Albert M. Kales, late of the Chicago
Bar.
Property (Personal). By Harry A. Bigelow, Professor of Law in the
University of Chicago.
Property (Rights in Land). By Harry A. Bigelow, Professor of
Law in the University of Chicago.
Property (Titles to Peal Property). By Ralph W. Aigler, Professor
of Law in the University of Michigan.
Property (Wills, Descent, and Administration). By George P. Costi-
gan, Jr., Professor of Law in the University of California.
Quasi Contracts. By Edward S. Thurston, Professor of Law in Yale
University.
PUKFACH Vll
Sales. Second Edition. By Frederic C. Woodward, Professor of Law
in the University of Chicago.
Suretyship. By Crawford D. Hening, formerly Professor of Law
in the University of Pennsylvania.
Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the
University of Indiana.
Trade Regulation. By Herman Oliphant, Professor of Law in Colum-
bia University.
Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer-
sity of New York.
Casebooks on other subjects are in preparation.
It is earnestly hoped and believed that the books thus far published
in this series, with the sincere purpose of furthering scientific training
in the law, have not been without their influence in bringing about a
fuller understanding and a wider use of the case method.
William R. Vaxce,
General Editor.
AUTHOR'S PREFATORY NOTE
Possibly a brief explanation of the general plan of this collection of
cases may be of assistance to students and others who may have occa-
sion to use it.
The topics covered fall into four groups :
First. The respective functions of the judge and jury, and the
development of various methods for controlling the action of the
jury-
Second. The rules prescribing the qualifications of witnesses and
governing their examination when testifying.
■ Third. Various rules of policy excluding a great deal of evidential
material from consideration by the jury.
Fourth. Certain substantive rules, governing the construction and
legal effect of contracts, conveyances, and other operative writings,
which have long been expressed in terms of evidence.
The first group does not belong to the law of evidence proper, but
needs to be understood in order to deal intelligently with the real
problems of evidence. It would seem that this furnishes a sufficient
reason for including the topics covered in the first chapter, and explains
the purpose of placing them at the beginning rather than elsewhere.
In this branch of the subject the historical development of the jury
trial has had an important bearing on the present state of the law, and
for that reason the cases have been selected with a view of tracing in
some detail the transition from the older to the modern trial.
In the second group, the rules governing the competency of witnesses
have lost much of their practical importance because of modern stat-
utes largely abolishing the common-law disqualifications resulting from
lack of religious belief, conviction of crime, interest in the result of
the suit, or marital relationship to an interested person. The legislation
in question, however, has rarely abolished all of the old law on these
points, and in a surprising number of recent cases the court is found
applying rules of disqualifications which were developed in the seven-
teenth and eighteenth centuries.
On this account it appeared advisable to work out the common law
on this subject at some length. On the other hand, it was impracticable
to treat the statutory modifications. in detail because of the lack of uni-
formity.
Since the rules for witnesses developed and became settled at an
earlier period than most of the law of evidence, it appeared desirable to
include a number of the earlier cases when the matter was in the pro-
cess of evolution.
(ix)
x author's prefatory note
The subject of witnesses has been treated at this place in the work
because many of the rules throw a good deal of light on other sub-
jects ; e. g., on the hearsay rule.
The third group embraces the various rules of exclusion based on
reasons of policy and expediency.
Here it is well to bear in mind two fundamental conceptions worked
out by the late Professor James Bradley Thayer: (1) That whatever
is offered as evidence must be logically relevant in order to be admis-
sible ; e. g., must have a logical bearing on the proposition sought to
be established. (2) That whatever is thus logically relevant will be
received unless excluded by some rule of policy or precedent.
Professor Thayer was careful to note, however, 'that what, accord-
ing to his analysis, are really qualifications or exceptions to the general
rule of admissibility, have ordinarily been developed and treated as
general rules of exclusion, to which there are many specific exceptions.
Thus the hearsay rule has always been thought of as generally exclud-
ing that sort of evidence, subject to certain well-defined exceptions.
For convenience the subject has been treated from the latter standpoint.
In the field of the excluding rules a compiler finds himself embarrass-
ed by the vast amount of material. Time and space preclude any
attempt to treat the various topics exhaustively. It has been found
impracticable to do more than select the more important problems
arising under the various rules. Here there is much room for differ-
ence of opinion, and probably no two instructors would agree in all
particulars on what should be selected as more important.
The present compiler has been guided in part by the scope of exist-
ing casebooks on the subject, and in part by his own experience during
some twenty years of a fairly active general practice. It is hoped that
the result may prove reasonably satisfactory.
The last group of subjects involves little that belongs to the law
of evidence, but the accepted tradition seems to require that they should
be treated in connection with that branch of the law.
Existing casebooks on Contracts, Conveyances, and Wills largely
ignore certain difficult problems of construction, and for the lack of
suitable collections in these fields the teacher of evidence must continue
to deal with them as best he can for the present.
In the preparation of this work it did not appear worth while to in-
cumber it with any extensive citations of cases accord and contra,
where it appeared sufficiently important reference has been made to
various works and compilations in which the cases have been collected.
In conclusion, the compiler of this collection wishes to acknowledge
his great indebtedness to the work of Professor James Bradley Thayer
and of Professor John H. Wigmore.
E. W. Hinton.
University of CnicAGO,
Sept. 1, 1919.
TABLE OF CONTENTS
CHAPTER I
The Couet and The Juet
Section Page
1. The Burden of Proof 1
I. The Two Burdens 1
II. Apportionment of the Burdens 42
2. Judicial Notice 89
3. Admission and Exclusion of Evidence 108
CHAPTER II
Witnesses
1. Competency 125
I. Intelligence and Religious Belief 125
II. Infamy 141
III. Interest 150
(A) At Common Law 150
(B) Under Modern Statutes 169
IV. Marital Relationship 184
V. Official Connection with the Tribunal 204
2. Required Witnesses 21G
3. Privilege 2.32
I. . Self Incrimination 232
II. Professional Confidence 273
4. Examination of Witnesses 301
I. Offers of Evidence and Objections 301
II. Examination in Chief 316
III. Cross-Examination 343
IV. Contradiction and Impeachment 374
V. Corroboration and Support 412
CHAPTER III
Hearsay
1. The General Rule 427
2. Recognized Exceptions 443
I. Reported Testimony 443
II. Dying Declarations 464
III. Admissions 4S2
(A) In General 4S2
(B) Confessions 533
IV. Entries and Statements Against Interest 557
V. Entries in the Regular Course of Business ."'71
VI. Official Registers and Reports t;1 7
VII. Reputation 84J
(A) In Regard to Rights in Land 041
(B) In Regard to Persons 65< I
Hint.Ev. (xi)
Xll TABLE OF CONTENTS
Section Page
2. Recognized Exceptions (Continued)
VIII. Entries and Statements in Matters of Pedigree CGI
IX. Spontaneous Statements 683
(A) As to a Mental State 683
(B) As to Physical Condition 714
(C) As to Other Facts 728
CHAPTER IV
Opinions and Conclusions
1. By Ordinary Witnesses 752
2. From Expert Witnesses 777
3. Opinion Based on Examination and Comparison of Writings 796
CHAPTER V
Circumstantial Evidence
1. Character 817
2. Conduct 844
3. Miscellaneous Facts 8S4
4. Physical Objects 917
CHAPTER VI
The Best Evidence
1. Contents of a Document 937
2. Other Facts 967
3. Degrees of Secondary Evidence 980
CHAPTER VII
«
The "Paeol Evidence" Rule
1. Evidence to Vary, Contradict, or Avoid Certain Written Instruments 987
2. Extrinsic Evidence to Aid in the Construction or Application of Writ-
ten Instruments -.1042
TABLE OF CASES
[TITLES OF CASES PRINTED nEREIN ARE SET IN ORDINARY TYPE. CASES CITED IN
FOOTNOTES ARE INDICATED BY ITALICS. WHERE SMALL CAPITALS
ARE USED, THE CASE IS REFERRED TO IN THE TEXT]
Page
v. Fitzgerald 155
Aalholm v. People 678
Abrahams v. Bit tin 317
Abrath v. North Eastern R. Co... 18
Adam v. Ear 231
Adams v. Arnold 374
Adnns V. Lloyd 265
Addams v. Seitziuger 562
iEtna Life Ins. Co. v. Milward. .. 636
Allen v. Hill 1
Allen v. United States 494
Alsop v. Bowtrell 777
American Ice Co. v. Pennsylva-
nia R. Co 806
Amnions v. State 549
Anchor Milling Co. v. Walsh.... 591
Angell v. Rosenbury 324
Angus v. Smith, Moody & Mulkin 393
Anheuser-Busch Brewing Ass'n v.
Hutmacher 952
Anonymous 6, 184, 317
Anonymous. 484
Argyle v. Hunt 92
Arizona & A\ M. R. Co. v. Clark.. 300
Ash v. Ash 10
Ashland, Inhabitants of, v. In-
habitants of Marlborough.
715
Ashton, Goods of, In re 1071
Atlanta St. R. Co. v. Walker 774
Attorney General v. Hitchcock.. . r iS2
Attorney General v. Le Merchant 940
Atwood v. Atwood 444
Atwood v. Welton 3S1
Atwood v. Welton 127
Bacon v. Charlton 715
Bains v. Railtcait 303
Bakeman v. Rose 40S
Baldwiu v. Parker 7S
Bank v. Kennedy 434
Bank of Monroe v. Culver 575
Banking House of Wileoxson &
Co. v. Rood 176
Barfield v. Britt 38,471
Barker v. Haskell 604
Barker v. St. Louis, I. M. & S. R.
Co 743
Barkly v. Copcland 305
Page
Barnes v. Trompowsky 216
Bauerman v. Radenius 500
Beach v. Karl of Jersey 1047
Beal v. Nichols 353
Beard v. Boylan 1022
Beaubien v. Cicotte 389
Beebee v. Parker ' I i I
Beech v. Jones
Bell v. Ilannibal d St. J. R. Co... 197.
Benjamin v. Porteus 162
Benoist v. Darby 234,658
Benson v. United States Lj4
Bentley v. Cooke 185
Berkeley Peerage, Case of. .427, 648
Berryman v. Wise 967
Berty v. Dormer 42
Bingham v. Cartwright 9U9
Bird v. Great Northern R. Co... 62
Bird v. Eeep 637
Birt v. Barlow 617
Bishop of Durham v. Beaumont 412
Blackburn v. Crawford 296
Blackburn v. Crawford 679
Blackett v. Weir 157
Blackwell v. State ~*~
Blake v. People 53
Boeck, Appeal of 1084
Boeck's Will, In re 10S4
Boileau v. Rutlin 486
Boston & A. R. Co. v. O'Reilly. . .
300, Tir,
Bosvile v. Attorney General 56
Bowes v. Foster 101 J
Bowles v. Langworthy 220
Boyden v. Moore 433
Boyer v. Sweet •"• v 7
Boyle v. Wiseman 114
Bradley v. Ricardo '•'■>'''
Braydon v. Goulman
Brazier, Case of 1 •"■' '
Breedon v. Gill -I-''
Bridgewater, Town of, v. Town
of Roxbury
Bright v. Eynon 208
Brister v. State 120
Broderick v. Higginson 868
Bromwich, Case of 428
Brown v. Aitkcn l^s
HlNT.EV.
(xiii)
XIV
TABLE OF CASES
Page
Brown v. Brown 1051
Brown v. Brown 157
Brown v. Commonwealth 474
Broivn v. Foster 275
Brown v. Kendall 58
Brotvn v. State 571
Broivn v. Walker 263
Browning v. Flanagin 624
Bryan v. State 234
Buckbee v. P. Hohenadel, Jr., Co.. 1060
Buckeye Powder Co. v. Du Pont
Powder Co 685
Buckstaff v. Russell 314
Buhrmaster v. New York Cent, d
H. R. R, Co 896
Bulkeley v. Butler 13
Burdick v. United States 262
Burton v. Plummer 605
Bushell, Case of 7
Butcher v. Jarratt 943
Byrd v. Commonwealth 146
Cairns v. Mooney 118
Caldwell v. Murphy 714
Call v. Dunning 219
Caminetti v. United States 242
Campau v. Dewey 357
Campbell v. People 692
Canole v. Allen 197
C<ipron v. Douglass 300
Carpenter v. Carpenter 924
Carpenters, Brickmakers, Brick-
layers, Tylers & Plasterers,
etc., Company of, of Shrews-
bury v. Hay ward 13
Can- v. West End St. R, Co 869
Carter v. Boehm 779
Carver v. United States 480
Carver v. United States. . . .3S8, 468
Cashin v. New York, N. H. & H.
R. Co... 719
Catcs v. Hardacre 245
Cazenove v. Vaughan 343
Central Vermont R. Co. v. White 28
Champion v. McCarthy 675
Charlotte- Oil & Fertilizer Co. v.
Rippy 181
Charter v. Charter 1070
Chase v. Maine Cent. R. Co 842
Chicago City R. Co. v. Allen.... 400
Chicago City R. Co. v. Carroll... 310
Chichester v. Oxenden 1043
Chichester v. Raymond 11
('iiilcot v. White 1066
Chisholm v. Beaman Mach. Co. . . 607
Chisholm v. Kutsche 607
Chlanda v. St. Louis Transit Co. 290
Church v. Perk ins 329
City of New York v. Pentz 782
City of Winona v. Burke 103
Clancey, Case of 141
Pago
Clancey v. St. Louis Transit Co. 379
Clapp v. Fullerton 772
Clark v. Finnegan 137
Clark v. Thias 177
Clemens v. Conrad 363
Clement v. Blunt 447
Clement v. Packer 651
Clifford v. Taylor 79
Clift v. Moses 181
Close v. Samm 919
Cobden v. Kendrick 277
Cocksedge v. Fanshaw 12
Cole v. Gibson 940
Coleman, In re 298
College v. Levett 12
Collins v. New York Cent. & H.
R. R. Co 8S9
Commins v. Mayor & Burgesses
of Oakhampton 159
Commonwealth v. Best 756
Commonwealth v. Blood 952
Commonwealth v. Brewer 122
Commonwealth v. Cleary 422
Commonwealth v. Cooper 466
Commonwealth v. Cressinger. .. . 547
Commonwealth v. Fitzgerald.... 398.
Commonwealth v. Furman 137
Commonwealth v. Griffin 204
Commonwealth v. Guiheen 422
Commonwealth v. Hawkins 390
Commonwealth v. Hayes 755
Commonivealth v. Hudson 376
Commonwealth v. Keuney 491
Commonwealth v. Lawler 407
Commonwealth v. Maddocks 827
Commonwealth v. Marzynski... 97
Commonwealth v. Moinehan. .. . 755
Commonwealth v. Morey 543
Commonwealth v. Phelps 325
Commonweal til v. Retkovitz 425
Commonwealth v. Rivet 871
Commonwealth v. Roddy 473
Commonwealth v. Stevenson. .. . 670
Commonwealth v. Stewart 431
Commonwealth v. Webster 41
Company of Carpenters, Brick-
makers, Bricklayers, Tylers &
Plasterers, etc., of Shrewsbury
v. Hay ward 13
Comphcr v. Browning 705
Connor v. O'Donnell 795
Conrad v. Griffey 391
Consolidated Coal Co. of St.
Louis v. Seniger 879
Cook v. Barr 489
Cooke v. Tanswell 222
Coon v. McNelly 1078
Cooper v. Marsden 582
Corporation of Bewdley, Case of 316
Corwin v. Walton 1st)
Cotterill v. Hobby 968
TABLE OF CASES
XV
Counselm nn v. Hitchcock
Count Joannes, The, v. Bennett. .
Craufurd v. Blackburn
Crease v. Barrett
Crocker v. McGregor
Cromack v. Heathcote
Cronin v. Fitchburg & L. St. R
Co
Cuba R. Co. v. Crosby
Cuff v. Pvnn
Cuilen (Lord) v. Johnson
Cunliff v. Sefton
Curren v. Crawford
Curtis v. Bradley
Pago
263
958
665
642
899
281
726
87
993
11
224
583
334
Davenport v. Silvey 832
Davis v. Dinwoody 187
Davis v. Hardy 16
Dean & Chapter of Ely v. Stewart 350
Delano
Denny
Derrick
Detroit
burg
Dexter
Deybel,
v. Bartlett 56
v. Williams 31
v. Wallace 418
& M. R. Co. v. Van Stein-
356, 760
v. Booth 197
Case of 93
Diamond Glue Co. v. Wietsychmo-
ski 331
Dickerman v. Qnincy Mut. Fire
Ins. Co 113
Dickinson v. Slice 350
Dickson v. Evans 43
Didsbury v. Thomas 646
Diggs v. United States 242
Dillon v. Crawly 4S2
District of Columbia v. Armes. . 903
Dixon v. Cooper 164
Dobie v. Armstrong 77
Doctor Leyfield, Case of 937
Dodge v. Bache 695
Dodge v. Morse 596
Doe v. Andrews 275
Doe v. Durnford 21S
Doe v. Robson 558
Doe v. Suckermorc 804
Doe ex dem. Beach v. Earl of Jer-
.1047
Bingham v. Cart-
969
Oxen-
sey
Doe ex dem
wright
Doe ex dem. Chichester v,
den 1043
Doe d. CniLCOT v. White 10GG
Doe dem. Church v. Perkins 329
Doe dem. Fleming v. Fleming... 659
Doe ex dem. Freeland v. Burt. . . .1012
Doe ex dem. Futter v. Randall.. 661
Doe ex dem. Hick v. Dring 1064
Doe dem. Jenkins v. Davies Ill
Doe dem. Lord Teynham v. Tyler 166
Doe dem. Mayor & Burgesses of
Stafford v. Tooth 164
Pago
Doe dem. Molesworth v. Sleeman 650
Doe dem. Nightingale v. Maisey 168
Doe ex dem. Oldham v. Wolley. . 226
Doe ex dem. Oxenden v. Chiches-
ter 1047
Doe dem. Patteshall v. Turford.. 579
Doe ex dem. Perry v. Newton.. 800
Doe dem. Sutton v. Ridgway.... 40r>
Doe, Lessee of Didsbury v.
Thomas 646
Doherty v. O'Callaghan 298
Doh men Co. v. Niagara Fire Ins.
Co 616
Dole v. Johnson 808
Doncaster, Mayor of, v. Day.... 443
Donnelly v. United States 568
Dormer v. Parkhurst 11
Duke of Newcastle v. Broxtowe. . 648
Duke v. Newcastle v. Hundred of
Broxtowe 53
Dunbar v. Parks 207
Duncan v. Atchison, T. & S. F. R.
Co 75S
Duncan v. Duncan 919
Dungan v. State 371
Durham, Bishop of, v. Beaumont 412
Drew v. Wiswall ■ 1034
Dwyer v. Collins 945
Dyer v. Best 335
Eastern Transportation Line v.
Hope 784
Eastman v. Boston & M. R. It... 746
Eastman v. Moulton 583
East Tennesse, V. & G. R. Co. v.
Daniel
Ely v. Travelers' Ins. Co. of
Hartford, Conn 747
Edgington v. United States 820
Edward Seymour (Sir), Case of. . 940
Egbers \. Egbers 75
FAdridge, Case of 317
Ellicott v. Pearl 420
Ellingwood v. Bragg 806
Elliott v. Boyles
Elliott v. Chicago, M. & St. P. R
Co 29
Ellmaker v. Buckley
Elmer v. Fessenden 699
Engcl v. United Traction Co 497
Engles v. Blocker 950
Ent whistle v. Feighner 17S
Epstein v. Pennsylvania R. Co... 300
Erman v. State
Eslow v. Mitchell
Evans v. Chicago, If. d St. P. P.
Co 936
Fairfield v. Lawsoo 1067
Fairlie v. Hastings • r, -' t '
Faunce v. Cray 586
XVI
TABLE OF CASES
Page
Faunce v. People 145
F. Dohmen Co. v. Niagara Fire
Ins. Co 616
Felton, Case of 533
Finncgan v. Fall River Gas
Works Co SOS
Firemen's Ins. Co. v. Seaboard Air
Line R. Co 616
First Nat. Bank of Hoopeston v.
Lake Erie & W. R. Co 891
Fisher v. Ronalds 264
Fisher & Ball v. Carter 960
Fitz-Harris v. Boiun 6
Fitzpatrick v. United States 241
Fitzwalter Peerage Case, The 802
Flach v. Oottschallc Co 177
Fleming v. Fleming 659
Flo i/d v. Bovard 352
Folkes v. Chadd 7S1
Folsom v. Apple River Log-Driv-
ing Co 330
Forbes v. IVales 226
Forsyth v. Noroross 604
Foster v. Jolly 1003
Foster v. Leonard 89
Foster v. Pierce 256
Foster v. Shepherd 708
Fox v. Reil 216
Francis, In re 695
Franklin v. Kidd 181
Fraunces v. Shotbolt 443
Frazier v. Pennsylvania R. Co.. . 656
Freeland v. Burt 1042
Freeman v. Ark ell 954
Frohs v. City of Dubuque 905
Furness v. Cope 575
Futter v. Randall 661
Gahagan v. Boston & L R. Co.... 764
Gale v. State 345
Gardam v. Batter son 865
Garth v. Howard & Fleming 526
Gauss, Ex parte 266
Gee v. Ward 672
Gelott v. Goodspeed 226
George v. Tate 1011
Cifford v. People 408
Gilbert v. Boyd 955
Gilbert v. Duncan 9<1
Q ilrhrist v. Bale 6S8
Gilman v. Gross 1021
Givens v. Pierson's Adm'x 612
Goddard v. Gardner 2S0
Goddard v. Parr 39(3
Godfrey v. Nowis 218
Goodier v. Lake 117
Goodright v. Moss 672
Goods of Ashton, In re 1071
Goodtitle v. Welford 303
Goodtitle dem. Revett v. Braham 796
Gordon v. Secretan 221
Page
Gould v. Hartley 607
Gragg v. Learned 632
Grant v. Grant 1072
Graves v. Colwell 77
Graves v. Short 3
Green v. Chelsea 648
Green v. Metropolitan St. R. Co. 291
Green v. New River Co 160
Green v. State 481
Grenaere v. Filby 706
Greener v. General Electric Co... 751
Greenfield v. People 755
Greer v. United States 828
Greinke v. Chicago City R. Co. . . 727
Grierson v. Mason 1017
Griffin v. Henderson 314
Griffith v. Hlginbotom 704
Griffith v. "Williams S00
Grigg, Case of 184
Griswold v. Hart 1S3
Groh's Sons v. Groh 307
Guardhouse v. Blackburn 1000
Gunn v. Thruston 566
Gurney v. Langlands 799
Hadley v. Carter 6S6
Haines v. Guthrie 670
Hale v. Henlcel 233
Hall v. Phelps 218
Hamann v. Milwaukee Bridge Co. 7S6
Hamilton v. People 411
Ham & Ham Lead & Zinc Inv. Co.
v. Catherine Lead Co 178
Hanawalt v. State 931
Haney v. Donnelly 527
Hanson v. Parker 499
Harden v. Hays 385
Hardy v. Merrill 773
Harington v. Macmorris 484
Harper v. United States 823
Harrington v. Inhabitants of Lin-
coln 497
Harris v. Neal 840
Harris v. Rickett 1031
Harrison v. Harrison S31
Harten v. Lofller 1057
Hartford v. Palmer 137
Hartman's Estate, In re G82
Harvey v. Thorpe 983
Hatch v. Fowler 976
Haven v. Wendell 332
Ilaicken v. Daley 335
Hawkins v. Taylor 573
Hayes v. Pitts-Kimball Co 442
Hayes v. Pitts-Kimball Co 461
Hays v. United States 242
Head v. Margrave 10
Hedge v. Vlapp 390
Heffron v. Gallupe 212
Hegler v. Faulkner t>-7
Heike v. United States -Go
TABLE OF CASES
XV 11
Page
Ileira v. United States 552
Hein v. Holdridge 841
Hemenway v. Smith 2S6
Heinings v. Robinson 499
Hemphill v. Hemphill 664
Ilcnklo v. Royal Assur. Co 992
Henry v. Bank of Salina 248
Henry v. Cole 93
Hick v. Dring 1064
High-am v. Ridgway 560
Hill v. Commonwealth 732
Hill v. State 4S2
Hilts v. Calvin 9S0
Hinners v. Edgewater ct Ft. L. R.
Co 922
Hitchins v. Eardlcy 112
Hodges v. Steward 92
Holbroolc v. McBride 302
Hollingham v. Head 860
Holmes v. Roper 305
Holt v. United States 40
Holt v. United States 237
Hook v. Pagee 917
Hooper v. Moore 410
Hooper v. Southern R. Co 450
Hopkins v. Neal 155
Hopkins' Will, In re 812
Hopps v. People 818
Home v. MacKenzie 320
Hosford v. Rowe 563
Houghton v. Burden 1011
Houghton v. Jones 354
House v. Beak 593
House v. Metcalf 900
How v. Hall 945
Howard v. Patrick 444
Howard v. Smith 962
Howell v. Look 363
Hroneek v. People 131
Hubbard v. Androscoggin & K. R.
Co 89S
Hughes v. Delaware & H. Canal
Co 518
Hughes v. Williams S4
Humphrey v. Dale 1027
Humphreys v. Budd 94
Hunt v. Blackburn 299
Hurlbut v. Meeker ISO
Hurst v. State 440
Hutton v. Warren 1026
Ilderton v. Atkinson 157
Illinois Cent. R. Co. v. Prickett. . 843
Illinois Cent. R. Co. v. Taylor... 184
Illinois Steel Co. v. Muza 450
Ingraham v. Bockius.". 603
Inhabitants of Ashland v. Inhabi-
tants of Marlborough 715
Inhabitants of North Brookfield
v. Inhabitants of Warren 067
Hint.Ev.— b
Page
Inhabitants of Salem v. Inhabi-
tants of Lynn 691
Insurance Co. v. Weidea 336
I vat v. Finch 560
Jack v. Kansas 263
Jacobs v. Layborn 306
Jarchow v. Qrosse
Jenkins v. Davies ill
Jennings v. Prentice lt, l
Jewell v. Parr 22
Joannes (Count) v. Bennett 958
Johnson v. Armstrong 331
Johnson v. Carlin 979
Johnson v. Lawson G04
Johnson v. State 28S
Jones v. Davers 90
Jones v. Mason 218
Jones v. Randall 940
Jones v. State 47t>
Jory v. Orchard 941
Joseph Taylor Coal Co. v. Dawes S70
J. S. Wcrden, The 336
Juneau Bank v. McSpedon 445
Juniata Bank of Pennsylvania v.
Brown 594
Kain v. Old 993
Kaines v. Knightly 9S7
Kansas City S. B. R. Co. v. Xor-
cross 759
Kaplan v. Gross 346
Keating v. Price 992
Keene v. Meade 970
Kempsey v. McGinniss 786
Kent v. Agard 1008
Kent v. Garvin 605
Kimbrough v. Chicago City R. Co. 792
Kimmel v. Kimmel 404, 656
Kine v. Beaumont 94S
King, The, v. Edwards 245
King, The, v. Fisher 853
King v. Gallun 95
King, The, v. Harringworth 21S
King, The, v. Inhabitants of Bath-
wick 1S7
King, The, v. Inhabitants of Cas-
tleton 953
King, The, v. Inhabitants of
Cheadle 1013
King, The, v. Inhabitants of Cop-
pull 90S
King, The, v. Inhabitants of Har-
bome 49
King, The, v. Inhabitants of Hard-
wick 504
King, The, v. Inhabitants of Twyn-
Ing 48
King, The, v. Inhabitants of Wo-
burn 233
King, The, v. John 464
XV111
TABLE OF CASES
Page
King, The, v. Paine 428
King, The, v. Priddle 144
King, The, v. Stone 108
King, The, v. Turner 46
King, The, v. White 129
Knapp v. Harden 1029
Knapp v. Salsbury 01
Knapp v. Wing 314
Knickerbocker Ice Co. v. Pennsyl-
vania R. Co 896
Knowlcs v. People 288
Krapp v. Metropolitan Life Ins.
Co ; 775
Ladd v. Missouri Coal & Min. Co. 313
Lambert v. Armentrout 381
Lane v. Sargent 104
Lane v. Stanhope 1047
Lassone v. Boston •& L. R. It 59S
Lawes v. Reed 327
Lawrence v. Barker 335
Latcrence v. Kimball 561
Layson v. Cooper 197
Lazier v. Westcott 101
Leavea v. Southern R. Co 178
Lee v. Gansel 146
Lef ebure v. Worden 572
Lessee of Didsbury v. Thomas. . . . 646
Lessee of Reece v. Robson 558
Lewes' Trust, In re 51
Lewis v. Fog 159
Lewis v. Freeman 752
Leyfield (Doctor), Case of 937
Lindner v. St. Paul Fire <£- Marine
Ins. Co 4S9
Lisbon v. Lyman 79
Logan v. United States 146
Logan v. United States 170
Lohman v. People 250
Lomax v. Lomax 10S2
Loornis v. Norman Printers' Sup-
ply Co 274
Lord Cullen v. Johnson 11
Lord Morley, Case of 457
Lord Say & Seal, Case of 274
Lord Teynham v. Tyler 166
Louisville & N. R. Co. v. McClish 415
Luby v. Hudson River R. Co 737
Lund v. Inhabitants of Tyngsbor-
ough 733, 756
LUTTEREIL V. REYNELL 421
Lynn v. Ilockaday 199
MacAl man v. Cleason 1039
McCunc v. Goodwillie 306
MacDonald v. Longbottom 1055
McDonald v. Metropolitan St. R.
Co 32
McDonald v. Pless 210
MacDonnell v. Evans 361
Mace v. Reed 399
Page
McOoicin v. Menken 53
McKane v. Hoivurd 840
MacKelly, Case of 92
McKenzie v. State 134
McLaren v. GillUpie "77
MacLean v. Scripps 951
McMillen v. State 693
McPherson v. Ratkbone 227
Mahaska County v. Ingalls 561
Mahlstedt v. Ideal Lighting Co.. . 202
Mahoney's Adm'r v. Rutland B.
Co 341
Makarell v. Bachelor 91
Makin v. Attorney General for
New South Wales 849
Manning v. Lechmere 557
Mant v. Mainwaring 157
Marr v. Hill 714
Marriage v. Latcrence 573
Marston v. Downes 293
Martin v. Eorrell 1U4
Martyn v. Jackson '. 7
Mary Grigg, Case of 184
Mason v. United States 270
Mathes v. Robi/nson
Mathews v. Livingston 486
Mattison v. Mattison 335
Mattox v. United States 393
Maugham v. Hubbard 330
Maverick v. Eighth Ave. R. Co. . . . 195
Mawson v. Hartsink 402
Maxwell's Ex'r v. Wilkinson 340
Mayor v. Lambert 2
Mayor, etc., of City of New York
v. Pentz 7S2
Mayor of Doncaster v. Day 443
Mayor & Burgesses of Stafford,
Dow dem., v. Tooth 164
Meighen v. Bank 864
Melhuish v. Collier 3S0
Menasha Wooden Ware Co. i\
Harmon 950
Mercer v. State 424
Merle v. More 292
Merriman v. Wickersham 173
Metcalfe v. Deane 205
Metropolitan St. R. Co. v. Gumby 448
Miles v. Loomis S08
Miles v. United States l s '->
Miller v. Hackley 863
Miller v. Northern Pac. R. Co. . . . 639
Miller v. People 544
Miller v. Smith 700
Miller v. Travers 995
Mills v. Lumber Co 685
Minneapolis Mill Co. v. Minneapo-
lis d St. L. R. Co 458
Minnesota Debenture Co. v. John-
son 076
Mississippi Cent. R. Co. v. Turn-
age, 7 18
TABLE OF CASES
XIX
Pa pro
Mitchell v. .Tonkins 19
Moffitt v. Connecticut Co 875
Molesworth v. Sleeman 650
Mn.uihan v. City of Worcester S32
Montague v. Dougan.
iOO
Montgomery & E. R. Co. v. Mal-
lette 63
Moore v. Bray 2TS
]\loore v. Meacham 57S
Morewood v. Wood 641
Morish v. Foot 160
Morley (Lord), Case of 457
Morris v. McClellan 241
Morris & Co. v. Industrial Board
of Illinois 639
Morse v. Minneapolis & St. L. R.
Co 496
Morss v. Morss 207
Mortimer v. McCallan 941
Morton v. Fairbanks 918
Morton v. Heidom 84
Moses v. Boston & M. R. R 164
Murdock v. Sumner 207
Murphy v. State 213
Murray v. Supreme Lodge, New-
England Order of Protection . . . 630
Musick v. Borough of Latrobe 757
Mutual Life Ins. Co. v. Hillmon. . 697
Myefs Will, In re 773
Hfearpass v. Gilman 181
Newcastle, Duke of, v. Broxtowe 648
Newcastle (Duke of) v. Hundred of
Broxtowe 53
Neiccomb, Matter of 692
New Jersey Steamboat Co. v.
Brockett 741
New Orleans & N. E. R. Co. v. Har-
ris 68
Neivson v. Luster 229
Nichol v. Godts 1053
Nightingale v. Maisey 168
Nix v. Gutting 160
Nolley v. Holmes 5S6
Woonan v. Caledonia Gold Min.
Co 307
Norden v. Williamson 156
North Bank v. Abbot 581
North Brookfield, Inhabitants of,
v. Inhabitants of Warren 667
Northern Pac. R. Co. v. Urlin 721
Northivcstern Union Packet Co. v.
Clough 314
Nowell v. Davies 166
Noyes v. Boston & M. R R 873
Nussear v. Arnold 505
Oakes v. United States 641
O'Coigley, In re 403
O'Connob v. Mabjobibanks 198
Oetien v. Central Leather Co 107
Oldham v. Wolley ~- r -
Omichund v. Barker 125
Orr v. Morice 223
Orscheln v. Scott 926
Oivner v. Bee Hive Spinning Co.. . '.Ml
Oxcnden v. Chichester 1047
Pacific Express Co. v. Dunn
Page v. Faucet
Pakas v. United States
Park v. New York Cent. & H. R.
R. Co
Parris v. Jenkins
Parrott v. State
Pastene v. Pardini
Patten v. Ferguson
Patten v. Moor
Patteshall v. Turf ord
Paull v. Brown
Peaceable v. Watson
Pearse v. Pearse
Peck v. Valentine
Pelitier v. Chicago, St. P., M. '& O,
R. Co
Pelzer v. Cranston
Pendock v. MacKender
Penn v. Bibby
Pennsylvania R. Co. v. Books. ...
People v. Adams
People v. Arnold
People v. Bill
People v. Brockett
People v. Brooks
People v. Cardillo
People v. Charlie Lee
People v. Christian
People v. Davis
People v. Del Vermo
People v. Dupounce
People v. Eastwood
People v. Forbes
People v. Garbutt
People v. Gardner
People v. Gluck
People v. Goodman
People v. Hamilton
People v. Hill
People v. Hinksman
People v. Jennings
People v. Katz
People v. Kelly
People v. Kennedy
People v. Kingcannon
People v. Lamar
People v. McElvaine
People v. Mayes
People v. Milner
People v. Molineux
People v. Morrison
People v. Murphy
People v. Roach
970
90
148
■
439
49:;
58
730
275
579
165
561
2S7
338
36
5S6
143
310
870
233
369
152
550
393
366
634
9S6
528
749
239
770
255
69
2:: 7
4 -j
366
424
To'.)
824
816
855
326
817
836
7Xi
91)
7. - :
543
364
296
816
XX
TABLE OF CASES
Page
People v. Rodawald S34
People v. Ryan 554
People v. Storrs 814
People v. Thorn 926
People v. Trybus. 245
People v. Tyler 237
People v. Wood 440
People v. Youngs 790
Peoria Cordage Co. v. Industrial
Board of Illinois 638
Peoria Gaslight & Coke Co. v. Pe-
oria Terminal R. Co 911
Perry v. Newton 800
Peters v. Fogarty 206
Peterson v. Merchants' Elevator
Co 171
Peugh v. Davis 1004
Philadelphia & T. R. Co. v. Stimp-
son 354
Phillips v. Cole 557
Pierson v. People 294
Piggot v. Eastern Counties R. Co. SS4
Pinney v. Orth 183
Pitcher v. People 258
Pitman v. Maddox 572
Pitt v. Carey 79S
Pittsburgh, C. & St. L. R. Co. v.
McGrath 446
Plant v. Taylor 670
Poerson v. People 294
Pool v. Bridges 729
Pope v. Allis 489
Porter v. Waring 103
Post v. Kennerson 584
Potter v. Cave 904
Potter r. Inhabitants of Ware 276
Powers v. United States 360
Prader v. National Masonic Ace.
Ass'n 289
Prentiss v. Russ 1009
President, etc., of Third Great
Western Turnpike Road Co. v.
Loonvis 372
Preston v. Merceau 9S8
Price v. Lord Torrington 5S0
Priddy v. Jioyce 630
Prince v. Blackburn 218
Prince v. Samo 517
Prince v. Smith 596
Prior v. Powers 204
Prussing v. Jackson 964
Putnam v. United States 326
Queen, Case of 362
Queen, The, v. Bliss 649
Queen, The, v. Inhabitants of Ly-
deard St. Lawrence 430
Queen, The, v. Inhabitants of
Worth 596
Queen, The, v. Jenkins 468
Queen, The, v. Muscot 150
Pago
Qv.eenan v. Oklahoma 773
Quin v. Lloyd 304
Quinn v. People 930
Raihvay v. Fishman 7S9
Rasimisson v. North Coast Fire
Ins. Co S42
Rawson v. Haigb 688
Read v. Brockman 940
Redding v. Redding's Estate S05
Reece v. Robson 558
Reed v. Jackson 646
Reeves v. Syinonds 158
Reg. v. Baldry 539
Reg. v. Bedding field 728
Reg. v. Boyes 266
Reg. v. Brown 412
Reg. v. Cos & Railton 283
Reg. v. Exeter 559
Reg. v. Francis S54
Reg. v. Garbett 251
Reg. v. Hill 138
Reg. v. Hind 473
Reg. v. Jarvis 540
Reg. v. Lillyman 424
Reg. v. Mitchell 348
Reg. v. Moore 536
Reg. v. Muscot 3S
Reg. v. Riley 397
Reg. v. Rowton 656, 764
Reg. v. Thompson 537
Reg. v. Winsor 153
Revett v. Braham. 796
Rex v. Almon
Rex v. Atwood 112
Rex v. Azire..^ 185
Rex v. Ball 844
Rex v. Boston 151
Rex v. Cator 79S
Rex v. Clarke 414
Rex v. Frederick 1S5
Rex v. Hodgson 395
Rex v. Huggins 159
Rex v. Inhabitants of Can in ion. . 363
Rex v. Inhabitants of Vastcll
Carcinion 14
Rex v. Jenkins 535
Rex v. Jones 535
Rex v. North Petherton <;-'•'
Rex v. Oldroyd 374
Rex v. Paine 517
Rex v. Row, Russell & Ryan 538
Rex v. St. Martin's 573
Rex v. Simmons 205
Rex v. Smith 451
Rex v. Stannard 817
Rex v. Teal 146
Rex v. Thatcher 448
Rex v. Travers 129
Rex v. Voke 845
Rex v. Warden of the Fleet 402
TABLE OF CASES
XXI
Page
Rex v. Watson 396
Rex v. Williams 134
Rex v. Worsenham 233
Reynolds, Ex parte 266
i:< i/nulds v. Maryland Casualty
Co 53
Reynolds v. United States 456
Rich v. Jackson 9S9
Rich dem. Lord Cullen v. Johnson 11
Richardson v. Mellish 623
Rideout v. Newton SOS
Ridgway v. Philip 521
Riggs v. Tayloe 956
Ringhouse v. Keever 660
Rison v. Browning 934
Robb, Appeal of 201
Robinson v. Gilman 444
Robinson v. New York Elevated
It. Co 913
Roche v. Brooklyn City & N. R.
Co 718
Roe dem. Beebee v. Parker 644
Rogers v. Brent 10S
Root's Estate, In re 1075
Rosen v. United States 148
Rosenbaum v. Podolsky 9S6
Rosenberg v. Sheahan 30S
Rudd, Case of 185
Rush v. Smith 344
Russell v. Coffin 417
Ryder v. Wombwell 91
Sackheim v. Pigueron 29
Salem, Inhabitants of, v. Inhabit-
ants of Lynn 691
Salte v. Thomas 619
Samson v. Yardley 447
Samuel v. People 259
Samuels v. Commonwealth 148
Sandwell v. Sand well 327
Sarbach v. Jones 141
Say & Seal's (Lord) Case 274
Scotland County v. Hill 311
Scott v. Bassett 349
Scott v. Lloyd 1012
Scott v. McCann 349
Scott v. United States 400
Scroop's Trial 232
Searle v. Barrington 563
Semple v. Callery 120
Senat v. Porter 490
Sevmour, Case of 940
Shaddock v. Town of Clifton 509
Shailer v. Bumstead 703
Sharp v. Blanton 603
Sharp v. United States 915
Shattuck v. Stoncham Branch R.
R 758
Shaw v. New York Elevated R,
Co 450
Page
Shea v. Glendale Elastic Fabrics
Co 901
Sheldon v. Hudson River R. Co.. . 886
Shcpard v. Parker 372
Shuttletcorth v. Bravo 166
Siegley v. Simpson 1080
Sir Edward Seymour, Case of . . . . 940
Sitler v. Oehr 622
Slade, Case of 4
Slattcry v. Poolcy 9C3
Slotofski v. Boston Elevated R.
Co 122
Smart v. Kansas City 909
Smith v. Blakey 566
Smith v. Blandy 517
Smith v. Prager Itjl
Smith v. Smith 591
Smith v. Wilson 1050
Smith dem. Dormer v. Parkhurst 11
Sparf v. United States 511
Sparke v. Middleton 273
Sparr v. Wellman 510
Spenceley v. Schulenburgh 275
Spencer v. State 456
Sperry v. Moore's Estate 348
Spokane & I. E. R. Co. v. United
■States 785
Squires v. O'Connell 610
Stafford v. Tooth 164
Standewick v. Hopkins 209
Stange v. Wilson 1032
Stapleton v. Crofts 192
Stark Electric R. Co. v. McGinty
Contracting Co 1038
Starratt v. Mullen 66
State v. Abbott 36S
State v. Able 461
State v. Adams 847
State v. Ah Chuey 237
State v. Barrington 547
State v. Barrows 293
State v. Bartlctt 239
State v. Benner 322
State v. Blydenburg TJs
State v. Broughton 542
State v. Carson 370
State v. Carta ~>~<i
State v. Crotts 324
State v. Draper 476
State v. Evans 185
State v. Fitzgerald 275
State v. Foster 258
State v. Gardner 261
State v. Garrett 235
State v. llawley -11^
State v. Hill
Stale v. Horn 102
State v. Uouscr 458
State v. Hudspeth TIT
State v. Hyde 1»^
State v. llgenfritz 711
XX11
TABLE OF CASES
Page
State v. Jones 545
State v. Elinger 72
State v. Kodat 202
State v. Kwiatkouski 328
State v. Loponio 276
State v. McO'Blenis 453
State v. Main 99
State v. Manchester & L. R. R 866
State v. Michael 135
State v. O'Connor 348
State v. Patterson 537
State v. Patton 329
State v. Potter 830
State v. Powell 550
State v. Poiccll 544
State v. Prtiett 756
Slate v. Slack 376
State v. Sopcr 776
State v.' Staples 456
State v. Taylor 401
State v. Terrell SOS
State v. Thompson S12
State v. Thorp 753
State v. Tilghman 771
State v. Turner 237
State v. Waldron 85S
State v. Wentworth 441
State v. Wentworth 241
State v. Wh itsett 694
State ex rel. Rison y. Browning 934
Stebbins v. Duncan 231
Steer v. Little 318
Stevens v. Whitcomb 483
Stewart v. Smith 877
Stiebel v. Grosberg 1021
Stoner v. Royar 307
Stow v. Converse 839
Stowe v. Querner 116
Stuhlmuller v. Ewing 200
Sullivan v. Corn Products Refin-
ing Co 181
Sutton v. Ridgway 465
Swing v. Cloquet Lumber Co 965
Swing v. Cloquet Lumber Co 963
Swire v. Bell 218
Sydleman v. Beckwith 761
Taff v. Eosmer 301
Taylor v. Grand Trunk R. Co 507
Taylor v. Grand Trunk R. Co 716
Taylor v. Peck 974
Taylor Coal Co. v. Dawes 870
Temple v. Commonwealth 260
Tennant v. Hamilton 358
Texas & P. R Co. v. Hartford
Fire Ins. Co 894
Texas & P. R. Co. v. Rosborough 893
Teynham (Lord) v. Tyler 166
Theobald v. Tregott 164
Thomas v. Jenkins 110
Thompson v. Bridges 0^5
Page
Thompson v. Ish 298
Thompson v. Oicens 376
Thompson v. Trevanion 728
Throckmorton v. Holt 701, 813
Theogmobton v. Walton 45
Toomey v. London, B. & S. C. R.
Co 20
Town of Bridgewater v. Town of
Roxbury 603
Townsend v. Ives 231
Tracy v. People 470
Travelers' Ins, Co. of Chicago v.
Mosley 716, 739
Trelawney v. Coleman 683
Trumhull v. O'Hara 1021
Trustees of Freeholders & Com-
monalty of Town of Southamp-
ton v. Jessup 1057
Tuberville v. Savage 683
Turner v. American Security & v
Trust Co 775
Turner v. Pearte 301
Underhill v. Hernandez 105
Union Bank v. Knapp 585
United States v. Gooding ,523
United States v. Graff 952
United States v. Hamburg- Ameri-
kanische Packet-Fahrt Acticn
Gesellschaft Co 107
United States v. Reid 170
Vaillant v. Dodemead 275
Valentine v. Piper 229
Vant'vne v. Butler 682
Vaughan, In re 237
Verdi v. Donahue 879
Viele v. McLean 494
Ville de Varsovie 144
Vrooman v. King 515
Wagner v. Chicago, R. I. & P. R.
Co 935
Wakelin v. London & S. W. R. Co. 22
Waldron v. Coombe 621
Waldron v. Ward 273
Wallace v. Wallace 282
Wallis v. Littell 1021
Ware v. Allen j 1021
Warickshall, Case of 536
Warner v. Maine Cent R. Co 530
Warner v. Press Pub. Co 202
Warren v. A. B. Mayer Mfg. Co.. . 993
Warren v. Greenville 557
Warren v. Nichols 458
Watts v. Brains 3
Webster v. Lee 354
Weeks v. Sparke 644
Weeks v. United States 233
Welch v. A T eto York, N. H. & H. R.
Co 660
TAHLE OF CASES
XX111
Page
Well roan v. Jones 328
Wendovcr v. Baker 177
Wentworth v. Lloyd 2S7
Werden, J. S., The 336
West Chicago St. R. Co. v. Ken-
nelly 723
Westover v. Life Ins. Co 294
West Virginia Architects & Build-
ers v. Stewart 612
Wcthcrbce v. Norris 407
Wheaton Holler Mill Co. v. John
T. Xoye Mfg. Co 1035
Wheeler v. Rockett 83
Wheeler v. United States 135
Whipple v. Brown Bros. Co 1011
Whipple v. Rich 390
Whitcomb v. Whiting 503
White v. United States 620
Whiteley v. King 694
Whithed v. Wood 175
Wliitnash v. George 598
Why man v. Garth 220
Wiedeman v. Walpole 494
Wiggins v. Burkharn 493
Wigglesworth v. Dallison 1024
Wihen v. Law 622
Wilcox v. Downing 593
Wilkins v. Wilkins 224
Wilkinson v. Eitchin 11
Willard v. Darrah 1070
Williams v. Great Northern R. Co. 721
Williams v. Inhabitants of Win-
throp 909
Williams v. Johnson 185
Williams v. Jones 101S
Williams v. Judy 514
Page
Williams v. Quebroda R. Co 286
Williams v. Wilcox 804
Williams' Adm'r v. Williams ::17
Willis v. Bernard
Wills v. Russell :;:,:,
Wilson v. Hodges r.
Wilson v. Powers 1020
Wilson v. Rastall 279
Wilson v. Sherburne 1030
Wilson v. United States 537
Winans v. Attorney General
Whin v. Grier 777
Winn v. Patterson !im
Winona, City of, v. Burke L03
Winters v. Winters 298
Wise v. Wynn 682
Wistrand v. People 929
Wood v. Braddick 522
Wood v. Broadley 19(3
Woods v. People 833
Woodworth v. Detroit United Ry. 907
Worrall v. Jones 157
Wray v. State 348
Wright v. Beckett 377
Wright v. Crump 3
Wright v. Doe dem. Tatham. .229, 435
Wright-Blodgett Co. v. United
States 87
Yardley v. Arnold 1G0
Young v. Johnson 778
Young v. People 951
Zollicoffer v. Turney 246
Zucker v. Whitridge 8S1
CASES ON EVIDENCE
CHAPTER I
THE COURT AND THE JURY »
SECTION 1.— THE BURDEN OF PROOF
I. The Two Burdens
ALLEN v. HILL.
(Court of Queen's Bench, 1591. Cro. Eliz. 238.)
Ejectione firmse, for a house in Cornhill, London. Upon a special
verdict the case was, Fr. Benson being seised of the house in fee, 4
Eliz., devised it to Agnes his wife for life; and after to the heirs of
his body, the remainder to Th. Benson his brother in fee : "Proviso,
that if the said Agnes clearly departs out of London, and dwell in
the country, that then she shall have a rent out of the said house,
etc." And found further, that Francis died without issue, and that
Th. Benson, died and that R. is his heir; and that afterwards, 15 Eliz.,
Agnes totaliter departed from London, and went to Milton in Suffolk.
And after the said R. before entry made by him and the executor of
Francis released to Agnes; and afterwards entered, and let to the
plaintiff; and that Agnes married one Huggins; and the defendant
entered by his commandment. The substance of the matter was, If
this Proviso does determine the estate before entry? for if so, she
was tenant at sufferance, and the release could not inure to her es-
i The subject-matter of this chapter is not strictly a part of the law of
evidence, but belongs rather to the larger topic of trial procedure. The l^ w
o£_ev idence prop er consist s of_ a bod y of rule s prescribing w hat m atf TTu='y,
Qgjmg f not,' bejrec eive d to es t ablis h" any^axe ix pT onositinn oj fac t It is no
directly concerned" with - the procedural steps to bring such material b<
the tribunal, or with determining which party has the burden of producing
it. or how the various questions may be apportioned between the judge and
the jury.
The law of evidence, in the main, is made up of excluding rules which pre-
vent the use of much relevant material, largely because it is thought to be
inadvisable to trust a jury with it.
This analysis would seem to require that a course on evidence should be
fined to a study of these excluding rules, leaving the various Introduc-
tory matters to some course on procedure. In the opinion of the editor,
however, such a restriction would not be desirable because of the difficulty
of understanding this body of excluding rules out of their natural setting,
and without considering the machinery which gave rise to them.
Hint.Ev. — 1
)
2 THE COURT AND THE JURY (Ch. 1
tate: for it was agreed, it was a good Proviso to make her estate to
determine; although there be no words "to cease," or "that it shall
be void"; but being in a will, it is implied in the words, "that then
she shall have a rent"; which cannot be if her estate be not deter-
mined.
The Justices said, she is but tenant at sufferance; for if the de-
vise had been express, that if she doth such an act her estate shall
cease; and after such a act done, though she continue in possession,
and dieth, this is no freehold in her; and here is as much in sub-
stance. And Wray said, it was held at an assembly of all the Jus-
tices, that if tenant pur auter vie continue in possession after the
death of cestui a que vie, he is but tenant at sufferance, and his discent
shall not take away an entry ; which Gawdy agreed, and that 18 Edw.
4, pi. 25, is not law.
But there was a default in their verdict ; for it was found that she
totaliter departed from London, and went to Milton in Suffolk ; but
it was not found that she dwelt out of London ; and this is part of
the condition : and this not being found, it is not found that the con-
dition is broken ; and then, notwithstanding any matter found, the
entry of the defendant is lawful. And it was moved, that as to it a
venire facias de novo should issue to examine this point better, if she
dwelt in the country; for it is said in this point, the verdict was not
well examined. But the Court held, that the verdict is full, upon which
a judgment might be given, and then no venire facias de novo is to be
awarded ; for it is found for the defendant, when it is not ~ found
that the condition is broken; and for this cause only it was adjudged
for the defendant.
But then it was objected, that the life of Agnes was not found, and
then the defendant cannot enter. Fenner said, it shall be intended she
is living; for the jury did not doubt of it; for they find, that if his
entry upon the matter found is lawful, that he is not guilty : so they
doubted nothing on that point; and so it was adjudged in 28 Eliz. in
this court. And judgment was, quod querens nihil capiat per billam.
- Willes, L. C. J., in Mayor v. Lambert, Willes, 111 (1738): "It was said
indeed in the present case that it is not found that there was no considera-
tion, but only that there was no consideration proved: but 'de non appar-
entibus et de non existentibus eadem est ratio.' Besides this negative need
not have been found at all; for though of late years such negatives have
been sometimes found, no such negatives were ever found in old special
verdicts, except where it was necessary to shew that the person or thing
did not come within a particular exception; as in the present ease it was
proper to find that the defendant was not a burgess or freeman; otherwise
what was not found was always taken not to be proved." See, also, Mar-
ten v. Jenkin, 2 Strange, 1145 (1741), where the special verdict failed to
find a fact necessary to the defense; Hook v. Pagee, 2 Muuf. (Va.) 379
(1811).
SCC. 1) THE BURDEN OF PROOF 3
GRAVES v. SHORT.
(Court of Queen's Bench, 159S. Cro. Eliz. 61G.)«
Error of a judgment in the Common Pleas in a formedon. The
errors assigned were, first, in fait. That the parties being at issue,
whether a feoffment were made, &c. and the jurors at the Nisi Prius
being gone together to confer, &c. William Malevory, one of the ju-
rors, showed to the residue of the jurors an escrow in writing pro
petentibus quod non fuit dat, in evidence per partes praedictas, per
quod they found the verdict for the demandant. Upon this error as-
signed it was demurred in law. And, after argument at the Bar, the
Court resolved, that it was not any error, nor could be alledged for
error ; for it doth not appear, that it was evidence given to the juror by
any of the parties, or by any other in behalf of the plaintiff; but it
shall be intended, that he showed it of himself ; and that it was a piece
of evidence which he had about him before, and showed it to inform
himself and his fellows. And as he might declare it as a witness, that
he knew it to be true, so he might show any thing which he knew : *
and therefore it is not like to 11 Hen. 4, pi. 33, and 35 Hen. 6, title
"Examination." * * *
Judgment affirmed. M
WATTS v. BRAINS.
(Court of Queen's Bench, 1600. Cro. Eliz. 778.)
The plaintiff brought an appeal of murder for the death of her
husband ; to which the defendant pleaded not guilty. Upon evidence
at the Bar it appeared, that two days before her husband's death, he
and the defendant fighting, upon a quarrel then betwixt them, the de-
fendant was hurt in that fray ; and the third day after, the plaintiff's
husband passing by the defendant's shop, the defendant pursued him
suddenly, and the husband's back being towards him, so as he per-
ceived him not, the defendant struck him upon the calf of his leg,
whereof he instantly died. The defendant to excuse himself affirmed,
that he who was slain, when he came by his shop, smiled upon him,
and wryed his mouth at him, and therefore, for this mocking of him,
he pursued him. It was much inforced by the defendant's counsel, that
s Part of the case is omitted.
* Holt, C. J., in Wright v. Crump, 7 Mod. 1 (1702): "If a jury give a ver-
dict upon their own knowledge, they ought to tell the court so; but the lair
way has been, for such of the jury as had knowledge of the matter, before
they are sworn, to tell the thing to the court, and be sworn as a witness."
For the practice of swearing a juror as a witness, see Dunbar v. Parks, post,
207. That the jury could not receive information privately from mere wit-
nesses, see Metcalfe v. Deane, Cro. Eliz. 1S9 (1590), post, 205, where a new
trial was awarded because of such misconduct
4 THE COURT AND THE JURY (Cll. 1
it was a new cause of quarrel ; and so the stroke is not upon any preced-
ent malice, and therefore it is not murder. But all the Court sever-
ally delivered their opinions, that if one make a wry or distorted
mouth, or the like countenance upon another, and the other immediate-
ly pursues and kills him, it is murder: for it shall be presumed to
be malice precedent ; and that such a slight provocation was not suffi-
cient ground or pretence for a quarrel ; and so delivered the law
to the jury, that it was murder, although what the defendant pretend-
ed had been true.
Whereupon the jury going from the Bar, notwithstanding the evi-
dence was pregnant against the defendant, eight of them agreed to
find him not guilty ; but the other four withstood them, and would not
find it but to be murder. On the next day morning, two of the four
agreed with the eight, to find him not guilty; and afterwards the oth-
er two consented in this manner, that they should bring in and offer
their verdict not guilty; and if the Court disliked thereof, that then
they all should change the verdict, and find him guilty. Upon this
agreement they came to the Bar, and the foreman pronounced the
verdict, that the defendant was not guilty. The Court much mislik-
ing thereof, being contrary to their direction, examined every one
of them by the poll, whether that was his verdict? and ten of the
first part of the pannel severally affirmed their verdict, that the de-
fendant was not guilty; but the two last affirmed how they agreed,
and discovered the whole manner of their agreement : whereupon they
were sent back again, and returned, and found the defendant guilty.
For this practice, Harris, the foreman, was afterwards fined 100
marks ; and the other seven, who agreed with him at the first, every
of them was fined £40. The other two, who agreed with the eight,
although they affirmed that it was because they could not endure or
hold out any longer, yet because they did not discover the practice,
being examined by poll, but affirmed the verdict, they were fined each
of them at i20. and all of them imprisoned. The other two were dis-
missed, yet blamed for such a manner of consenting in abuse of the
Court. And afterwards the defendant was adjudged to be hanged.
SLADE'S CASE.
(Court of King's Bench, 1648. Style, 138.)
The Court was moved for judgment formerly stayed upon a cer-
tificate made by Baron Atkins, that the verdict passed against his
opinion. Bacon, Justice, said, judgments have been arrested in the
Common Pleas, upon such certificates. Hales, of counsel with the de-
fendant, prayed, that this judgment might be arrested, and that there
might be a new trial, for that it hath been done heretofore in like
cases. But Roll, Justice, held, it ought not to be stayed, though it
SeC. 1) THE BURDEN OF PROOF 5
have been done in the Common Pleas, for it was too arbitrary for them
to do it, and you may have your attaint G against the jury, and there is
no other remedy in law for you ; but it were good to advise the party
e "A Writ of Attaint: which lioth to inquire whether a jury of twelve
men gave a false verdict; that so the judgment following thereupon may be'
reversed: and this must be brought in the lifetime of him for whom the
rerdict was given, and of two at least of the jurors who gave it. This lay,
at the common law, only upon writs of assise; and seems to have been co-
eval with that institution by king Henry II at the instance of his chief Justice
Glanvil: being probably meant as a check upon the vast power then re-
posed in the recognitors of assise, of finding a verdict according to their own
personal knowledge, without the examination of witnesses. And even here
it extended no farther than to such instances, where the issue was joined
upon the very point of assise (the heirship, disseisin, etc.) and not on any
collateral matter; as villenage, bastardy, or any other disputed fact. In
these cases the assise was said to be turned into an inquest or jury, (as-
sisa vertitur in juratem) or that the assise should be taken in mod urn jura-
ts et non in modum assisse; that is, that the issue should be tried by a com-
mon jury or inquest, and not by recognitors of assise: and then I apprehend
that no attaint lay against the inquest or jury that determined such col-
lateral issue. Neither do I find any mention made by our ancient writers,
of such a process obtaining after the trial by inquest or jury, in the old
Norman or feodal actions prosecuted by writ of entry. Nor indeed did any
attaint lie in trespass, debt, or other action personal, by the old common
law: because those were always determined by common inquests or juries.
At length the statute of Westm. I, 3 Edw. I, c. 38, allowed an attaint to be
sued upon inquests, as well as assises, which were taken upon any plea of
land or of freehold. But this was at the king's discretion, and is so under-
stood by the author of Fleta, a writer contemporary with the statute ; though
Sir Edward Coke seems to hold a different opinion. Other subsequent stat-
utes introduced the same remedy in all pleas of trespass, and the statute 34
Edw. Ill, c. 7, extended it to all pleas whatsoever, personal as well as real :
except only the writ of right, in such cases where the mise or issue is join-
ed on the mere right, and not on any collateral question. For, though the
attaint seems to have been generally allowed in the reign of Henry the Sec-
ond, at the first introduction of the grand assise (which at that time might
consist of only twelve recognitors), yet subsequent authorities have holden,
that no attaint lies on a false verdict given upon the mere right, either at
common law or by statute; because that is determined by the grand assise,
appealed to by the party himself, and now consisting of sixteen jurors.
The jury who are to try this false verdict must be twenty-four, and are
called the grand jury; for the law wills not that the oath of one jury of
twelve men should be attainted or set aside by an equal number, nor by
less indeed than double the former. * * * And he that brings the at-
taint can give no other evidence to the grand jury, than what was originally
given to the petit. For as their verdict is now trying, and the question is
whether or no they did right upon the evidence that appeared to them, the
law adjudged it the highest absurdity to produce any subsequent proof upon
such trial, and to condemn the prior jurisdiction for not believing evi.l
which they never knew. But those against whom it is brought are allow, d.
in affirmance of the first verdict, to produce new matter; because the petit
jury may have formed their verdict upon evidence of their own knowledge,
which never appeared in court. If the grand jury found the verdict a false
one, the judgment by the common law was, that the jurors should lose their
liberam legem and become forever infamous; should forfeit their goods and
the profits of their lands; should themselves be Imprisoned, and their wives
and children thrown out of doors; should have their houses razed, their
trees extirpated, and their meadows ploughed; and that the plaintiff should
be restored to all that he lost by reason of the unjust verdict Bui
severity of this punishment had it's usual effect, in preventing the law from
being executed, therefore by the statute 11 Hen. VII, e. 24, revived b]
6 THE COURT AND THE JURY (Ch. 1
to suffer a new trial for better satisfaction. And let the defendant
take four days from hence to speak in arrest of judgment if the
postea be brought in, if not, then four days from the time it shall be
brought in.
FITZ-HARRIS v. BOIUN.
(Court of King's Bench, 1662. 1 Lev. 87.)
Error of a judgment in the Palace Court in assumpsit, where to
prove the consideration, an arrest was to be proved by the plaintiff;
and for that he did not produce the writ, the defendant demurred on
the evidence; and thereupon judgment was given for the plaintiff;
and now to reverse the judgment it was said for the plaintiff in error,
that the King's writs are matters of record, and are not to be proved
but by themselves ; and it was agreed by the Court that the writ ought
to have been produced in evidence, but by the demurrer it is confessed,
the arrest being matter of fact, though it be to be proved by a matter
of record, and the jury might of their own knowledge know that there
was a writ, Dyer 239. Plowd. Com. Scholastica's case. And by the
demurrer on the evidence, all matters of fact are confessed that the
jury could know of their own conusance; and the judgment was af-
firmed.
ANONYMOUS.
(Court of King's Bench, 1665. 1 Keb. 864.)
Ex motione recordatoris Wild, the Court on certificate of a Judge,
that verdict was given contrary to evidence, would not allow the»sher-
iff should bring in the book of freeholders to the Secondary, for the
ill example; but ordered the sheriff should retorn a good jury in the
new trial. Hyde, Chief Justice, conceived jurors ought to be fined if
Hen. VIII, c. 3, and made perpetual by 13 Eliz. c. 25, an attaint is allowed to
be brought after the death of the party, and a more moderate punishment was
inflicted upon attainted jurors; viz. perpetual infamy, and, if the cause
of action were above £40. value, a forfeiture of £20. apiece by the jurors ; or,
If under £40., then £5. apiece; to be divided between the king and the party
injured. So that a man may now bring an attaint either upon the statute or
at common law, at his election ; and in both of them may reverse the former
judgment. But the practise of setting aside verdicts upon motion, and
granting new trials, has so superseded the use of both sorts of attaints, that
I have not observed any instance of an attaint in our books, much later than
the sixteenth century. By the old Gothic constitution indeed, no certificate
of a judge was allowed in matters of evidence; to countervail the oath of
the jury: but their verdict, however erroneous, was absolutely final and
conclusive. Yet there was a proceeding, from whence our attaint may be
derived. If, upon a lawful trial before a superior tribunal, they were found
to have given a false verdict, they were fined, and rendered infamous for
the future." 3 Blackstoue's Commentaries, 402.
SeC. 1) THE BURDEN OF PUOOP ~
they would go against the hare and direction, take bit in mouth and
go headstrong against the Court ; and said, that by the grace of God
he would have it tried, seeing the attaint is now fruitless. 9
BUSHELL'S CASE.
(Court of Common Pleas, 1670. Vaughan, 135.)
To a writ of habeas corpus the sheriff returned that the prisoners
were held under an order fining and committing them as members of
a jury for acquitting Penn and Mead on a charge of unlawful as-
sembly, against the manifest evidence and contrary to the direction
of the court in matter of law. 7
The Chikf Justice [Vaughan] : We come now to the next part of
the retorn, viz. That the jury acquitted those indicted against the di-
rection of the court in matter of law, openly given and declared to
them in court.
1. The words, That the jury did acquit against the direction of the
court in matter of law, literally taken, and de piano, are insignificant,
and not intelligible; for no issue can be joined of matter in law, no
jury can be charged with the trial of matter in law barely, no evidence
ever was, or can be given to a jury of what is law or not; nor no such
oath can be given to, or taken by a jury, to try matter in law, nor no
attaint can lie for such a false oath.
Therefore we must take off this veil and color of words, which
make a show of being something, and in truth are nothing.
If the meaning of these words, finding against the direction of
the court in matter of law, be, that if the judge, having heard the evi-
dence given in court, (for he knows no other) shall tell the jury upon
this evidence. The law is for the plaintiff, or for the defendant, and
you are under the pain of fine and imprisonment to find accordingly,
then the jury ought of duty so to do : Every man sees that the jury is
but a troublesome delay, great charge, and of no use in determining
right and wrong, and therefore the trials by them may be better abol-
ished than continued; which were a strange new-found conclusion,
after a trial so celebrated for many hundreds of years.
For if the judge, from the evidence, shall by his own judgment first
resolve upon any trial what the fact is, and so knowing the fact, shall
e This practice of granting a new trial did not become well established
until somewhat later. Martyn v. Jackson, 3 Keb. 39S (1075): "Ex motione
Sytherfield for a new trial on parol affirmation of Hale, Chief Justice, to
Rainsford, Justice, that the trial was against evidence. Twisden and Wild
refused to grant it, the jury being judges of the fact, though verdict be
against evidence, it's not to be set aside without a new law; contra by
Rainsford, 2 Bulstr. 222, 224 (1014). Juries are wilful enough, and denying
new trial here, will but send parties into the chancery, yet new trial was
denied." For an application to the Court of Chancery, see Mill v. Wharton,
2 Vera. 37S (1700).
i Statement condensed and parts of opinion omitted.
8 THE COURT AND THE JURY (Ch. 1
then resolve what the law is, and order the jury penally to find ac-
cordingly: what either necessary or convenient use can be fancied
of juries, or to continue trials by them at all: * * *
But no case can be offered, either before attaints granted in general,
or after, that ever a jury was punished by fine and imprisonment by
the judge, for not finding according to their evidence and his direc-
tion, until Popham's time ; nor is there clear proof that he ever fined
them for that reason, separated from other misdemeanor. If juries
might be fined in such case before attaints granted, why not since?
For no statute hath taken that power from the judge. But since at-
taints granted, the judges resolved they cannot fine where the at-
taint lies, therefore they could not fine before. Sure this latter age
did not first discover that the verdicts of juries were many times not
according to the judges opinion and liking.
But the reasons are, I conceive, most clear, that the judge could not,
nor can, fine and imprison the jury in such cases.
Without a fact agreed, it is as impossible for a judge or any other
to know the law relating to that fact, or direct concerning it, as to know
an accident that hath no subject.
Hence it follows, that the judge can never direct what the law is
in any matter controverted, without first knowing the fact; and then
it follows, that without his previous knowledge of the fact, the jury
cannot go against his direction in law, for he could not direct.
But the judge, qua judge, cannot know the fact possibly, but from
the evidence which the jury have, but (as will appear) he can never
know what evidence the jury have, and consequently he cannot know
the matter of fact, nor punish the jury for going against their evidence,
when he cannot know what their evidence is.
It is true, if the jury were to have no other evidence for the fact,
but what is deposed in court, the judge might know their evidence, and
the fact from it, equally as they, and so direct what the law were in
the case, though even then the judge and jury might honestly differ in
the result from the evidence, as well as two judges may, which often
happens.
But the evidence which the jury have of the fact is much other than
that: for,
1. Being returned of the vicinage whence the cause of action aris-
eth, the law supposeth them thence to have sufficient knowledge to
try the matter in issue (and so they must), though no evidence were
given on either side in court; but to this evidence the judge is a
stranger.
2. They may have evidence from their own personal knowledge, by
which they may be assured, and sometimes are, that what is deposed
in court is absolutely false; but to this the judge is a stranger, and
he knows no more of the fact than he hath learned in court, and per-
haps by false depositions, and consequently knows nothing.
Sec. 1) THE BURDEN OF PROOF 9
3. The jury may know the witnesses to be stigmatised and infa-
mous, which may be unknown to the parties, and consequently to the
court.
4. In many cases the jury are to have view necessarily, in many by
consent, for their better information; to this evidence likewise the
judge is a stranger.
5. If they do follow his direction, they may be attainted, and the
judgment reversed, for doing of that which if they had not done they
should have been fined and imprisoned by the judge, which is unrea-
sonable.
6. If they do not follow his direction, and be therefore fined, yet
they may be attainted, and so doubly punished by distinct judicatures
for the same offence, which the common law admits not. * * *
7. To what end is the jury to be returned out of the vicinage whence
the cause of action ariseth? To what end must hundredors, be of the
jury, whom the law supposeth to have nearer knowledge of the fact
than those of the vicinage in general? To what end are they chal-
lenged so scrupulously to the array and poll ? To what end must they
have such a certain freehold, and be probi et legales homines, and not
of affinity with the parties concerned? To what end must they have
in many cases the view, for their exacter information chiefly? To
what end must they undergo the heavy punishment of the villanous
judgment, if after all this they implicitly must give a verdict by the
dictates and authority of another man, under pain of fines and im-
prisonment, when sworn to do it according to the best of their own
knowledge ?
A man cannot see by another's eye, nor hear by another's ear, no
more can a man conclude or infer the thing to be resolved by another's
understanding or reasoning; and though the verdict be right the jury
give, yet they being not assured it is so from their own understanding,
are foresworn, at least in foro conscientise.
9. It is absurd a jury should be fined by the judge for going against
their evidence, when he who fineth knows not what it is, as where
a jury find without evidence in court of either side, so if the jury
find upon their own knowledge ; as the course is if the defendant
plead solvit ad diem to a bond proved, and offers no proof, the jury
is directed to find for the plaintiff, unless they know payment was made
of their own knowledge, according to the plea.
And it is as absurd to fine a jury for finding against their evidence,
when the judge knows but part of it; for the better and greater part
of the evidence may be wholly unknown to him ; and this may hap-
pen in most cases, and often doth, as in Graves and Short's Case.
* * *
That decantatum in our books, "Ad quaestionem facti non respond-
ent judices, ad quzestionem legis non respondent juratorcs." literally
taken, is true: For if it be demanded, What is the fact? the judge
10 THE COURT AND THE JURY (Ch. 1
cannot answer it; if it be asked, What is the law in the case? the jury
cannot answer it.
Therefore the parties agree the fact by their pleading upon demurrer,
and ask the judgment of the court for the law.
In special verdicts the jury inform the naked fact, and the court de-
liver the law; and so is it in demurrers upon evidence, in arrest of
judgments upon challenges; and often upon the judges opinion of
the evidence given in court, the plaintiff becomes nonsuit, when if the
matter had been left to the jury, they might well have found for the
plaintiff. * * *
The prisoners were discharged. 8
ASH v. ASH.
(Court of King's Bench, 1697. Comb. 357.)
Assault, battery, and false imprisonment. The Lady Ash pretend-
ed, that her daughter the plaintiff was troubled in mind, and brought
an apothecary to give her physick, and they bound her, and would
have compelled her to take physick. She was confined but about two
or three hours, and the jury gave her £2000. damages.
Sir Barth. Shower moved for a new trial for the excessiveness of
the damages.
Holt, C. J. The jury were very shy of giving a reason of their
verdict, thinking they have an absolute despotick power, but I did
rectify that mistake, for the jury are to try causes with the assist-
8 The jury may still make use of a good deal of information not derived
from witnesses at the trial. In Com. v. Peckham, 2 Gray (Mass.) 514 (1854),
it was announced that "no juror can be supposed to be so ignorant as not to
know what gin is." In Lillibridge v. McCanu, 117 Mich. 84, 75 N. W. 2S8,
41 L. R. A. 381, 72 Am. St. Rep. 553 (189S), the court thought! no evidence
was needed to enable a jury to say that it was dangerous to smoke a pipe
in a barn filled with bay. In Graham v. Pennsylvania Co., 139 Pa. 149, 21
Atl. 151, 12 L. R. A. 293 (1891), a case involving what was claimed to be a
dangerous station platform, it was said that "every juryman who ever got
in or out of a car, or went up or down a flight of steps, was as capable of
judging the alleged danger as the witnesses." In Head v. Hargrave, 105 U.
S. 45, 26 L. -Ed. 1028 (18S1), it was said: "So far from laying aside their
own general knowledge and ideas, the jury should have applied that knowl-
edge and those ideas to the matters of fact in evidence in determining the
weight to be given to the opinions expressed ; and it was only in that way
that they could arrive at a just conclusion. While they cannot act in any
case upon particular facts material to its disposition resting in their private
knowledge, but should be governed by the evidence adduced, they may, and
to act intelligently, they must, judge of the weight and force of that evi-
dence by their own general knowledge of the subject of inquiry." In Rarr
v. Kansas City, 105 Mo. 550, 16 S. W. 483 (1891), it was said to be the pe-
culiar province of the jury, in viewing the acts and circumstances, "to meas-
ure them by a standard of prudence and care derived from their own ex-
perience of what an ordinarily prudent person would have done. * * * "
Sec. 1) THE BURDEN OF PROOF H
ance of the Judges, and ought to give reasons when required, that,
if they go upon any mistake, they may be set right, and a new trial
was granted. 9
RICH dem. LORD CUIXEN et al. v. JOHNSON et al.
(Court of King's Bench, 1740. 2 Strange, 1142.)
In ejectment for mines the plaintiff proved himself lord of the
manor, and that he was in possession thereof. But the same witness
proving, that the defendants had had possession of the mines above
twenty years; the court upon a trial at bar held this no evidence to
avoid the statute of limitations, there being no entry within twenty
years upon the mines, which are a distinct possession, and may be
different inheritances: and therefore directed 10 the jury to find for
the defendants.
» In Smith dem. Dormer v. Parklmrst, Andrews, 315 (1738), it was said
by counsel, supporting a rule nisi for a new trial: "As to the objection,
that the jury might perhaps go on their own knowledge; this, if allowed,
will put an end to the granting a new trial in any case whatsoever, because
on such a supposition no verdict can be said to be found against evidence.
A jury are by their oaths obliged to go according to evidence, i. e. the evi-
dence given in court: And if a juryman be prepossessed, it is a good cause
of challenge ; which seems to be proof that a juror ought not to go by his
own knowledge. If a juror does indeed know anything material in the
cause, he ought to acquaint the court therewith, and be sworn as a wit-
ness, that he may be cross-examined. [Anonymous], Far. 2. 1 Salk. 40o
[1703]. And otherwise he may go upon insufficient and improper evidence.
[Metcalfe v. Deane] Cro. El. 1S9 [1590] ; 2 Hale's Hist. P. C. 306, 307. Sup-
posing therefore that here any of the jury went on their own knowledge,
without acquainting the court therewith, it is such a misbehavior as is a
sufficient foundation for granting a new trial. In Kitchen and Manwaring
(Pas. 12 G. I, in K. B.) a new trial was prayed, because, after the withdraw-
ing of the jury, oue of them offered evidence to the others; but it was
refused, because Powell, Just., who tried the cause, reported that the verdict
was according to evidence; otherwise a new trial would have been granted.
It cannot be said with reason (as hath been objected) that the granting a
new trial is an imputation of perjury to the jury ; for they may well be mis-
taken as to matter of fact, as the judges (who are sworn as well as jurors)
may err in point of law; and their judgments are reversible by writs of
error. And as to what has been said, that the granting a new trial may
occasion perjury; this is no solid objection, for that the court ought to do
right whatever 'may be the consequence."
io in Chichester v. Philips, T. Raymond, 404 (1GS0), a bill of exceptions
was taken to the refusal of the judge to direct that a record was conclusive,
but it was held that the party should have demurred to the evidence. In
Wilkinson v. Kitchin, 1 Ld. Raymond, S9 (B. R. 1697), the following state-
ment appears: "And afterwards it being proved in this case that the de-
fendant confessed that he had disposed of this money in bribes, the jury by
direction (of Lord Holt) gave a verdict for the plaintiff." The same year
(1G97) in Ash v. Ash, Comb. 357, Lord Holt denied the "despotic power" of
a jury, and granted a new trial. But it seems rather improbable that he
gave a peremptory direction in the Wilkinson Case to find Cor the plaintiff on
oral proof of an admission by the defendant, though at that period peculiar
notions prevailed as to the binding effect of confessions. Five years later.
in Wright v. Crump, 7 Mod. 1, he apparently concedes the power of the
12 THE COURT AND THE JURY (Ch. 1
COCKSEDGE v. FANSHAW.
(Court of King's Bench, 1779. 1 Doug. 118.)
This was an action for money had and received. The plaintiff's
claim was based on an alleged custom. There had been two previous
trials in which the plaintiff had obtained the verdict. On the last trial
the defendant demurred to the plaintiff's evidence, and the case was
heard in banc on this demurrer. 11
Lord Mansfield. The foundation, upon which the plaintiff rests
his title, is this; that, by immemorial usage, to which there has been
no interruption since the time of Richard I. freemen-factors have a
right to take, to their own use, that part of the farthing duty which is
paid for corn consigned to them. The defendant denies the fact, and
says, there is no such usage or custom. I speak to the fact now;
the legal objection I will consider by and by. But this is the fact upon
which the parties are at issue; and this is to be tried by the jury.
Nobody else can try it; because it is a conclusion of fact from the
evidence. Almost all the objections that have been made, are such
as were very proper to be stated to a jury, to induce them to doubt of
the fact of such immemorial usage ; to induce them to conclude that it
began in fraud, or mistake ; that it could not begin in the way in which
it is claimed ; that such an usage could not possibly be immemorial :
and, on the second trial, all this was strongly put to the jury. But,
what is now brought before the court on this demurrer? Not a ques-
tion, whether the evidence was~ sufficient to satisfy the jury of the fact
of the custom, for, by the demurrer, the defendant admits every fact
which the jury could have found upon the evidence. The only ques-
tion before the court, is, Whether, supposing the fact to be as the
plaintiff contends, and that, immemorially, without any exception since
the time of Richard I. the usage has been for the freemen-factors to
receive the farthings, such usage could, by any possibility, have a
legal commencement? * * *
Ashhurst, Justice. I am of the same opinion. The question now
before us, is precisely what was decided on the last motion for a new
trial. The opinion of the court then was, that the custom might have
a legal commencement. As to the evidence, there is certainly enough
to have warranted the jury in inferring, that the usage had existed as
far back as the time of memory. There was sufficient to be left to a
j.ury, and that is all that is requisite.
jury to act on private knowledge - . In 1701, in College v. Levett, 1 Ld. Ray-
mond, 472, the same judge apparently directed a verdict for plaintiff on the
ground that the defense attempted to be proved under the general issue was
not sufficient in law. In 1725, in Syderbottom v. Smith, 1 Strange, 649,
Chief Justice Eyre appears to have directed a verdict for defendant on fail-
ure of proof.
ii Statement condensed and part of opinion of Mansfield, J., and all of
opinion of Willes, J., omitted.
SeC. 1) THE BURDEN OF PROOF 13
BullER, Justice. Though Mr. Davenport divided his argument into
five parts, it seems to me, that there are but two questions in the cause.
The first, What is the nature of a demurrer to evidence? the second,
Whether the custom set forth in this demurrer-book, as stated by the
plaintiff's counsel, be, or be not, good in law? With respect to the
first, I think Mr. Davenport has gone a great way too far. It is the
province of a jury, alone, to judge of the truth of facts, and the cred-
ibility of witnesses ; and the party cannot, by a demurrer to evidence,
or any other means, take that province from them, and draw such ques-
tion ad aliud examen. I think the plain and certain rule is this : The
demurrer admits the truth of all facts, which, upon the evidence stated,
might be found by the jury In favour of the party offering the evi-
dence. Mr. Davenport puts the case of a special verdict, and says,
the reason for a demurrer to evidence is, that the party demurring does
not chuse to trust the jury. In a certain degree that is true ; but the
reason of not trusting the jury is, because they may, if they please,
refuse to find a special verdict, and then the facts never appear on the
record. But whether the case comes before the court on a demurrer
to evidence, or on a special verdict, the law is the same. Now, if this
cause had been put into the shape of a special verdict, what must have
been stated on the record? The jury could not find all the evidence set
forth in the demurrer, but must have pronounced upon the fact,
whether or not such an immemorial custom had existed, and then it
would have been for the court to decide, whether such a custom was
good in law. I agree with Mr. Wood in his definition of a demurrer
to evidence; and I am clear that there was sufficient to be left to a
jury, and, therefore, on the first question, there seems to me to be no
doubt at all. As to the second, though I have no doubt in my own
mind, yet I have known so much of the cause before, that I purposely
avoid giving any opinion upon it.
Judgment for the plaintiff. 12
COMPANY OF CARPENTERS, BRICKMAKERS, BRICKLAY-
ERS, TYLERS, AND PLAISTERERS, ETC., OF
SHREWSBURY v. HAYWARD.
(Court of King's Bench, 1780. 1 Doug. 374.)
This was an action on the case, against a carpenter, for the breach
of a custom, which was laid to be, That none but members of the
company, (being a corporation by prescription,) or their apprentices,
12 After the ruling in Gibson v. Hunter, 2 H. Blackstone, 1S7 (1793), that
where the evidence was not direct and certain the party demurring must
expressly admit the facts which the evidence tended to prove, demurrers
to the evidence largely fell into disuse, and motions to direct the verdict
or to enter a nonsuit took their place. Finally it was ruled in BulKeley v.
Butler, 2 B. & C, 434 (1824), that the refusal to direct a verdict might be
reviewed on hill of exceptions.
14k THE COURT AND THE JURY (Ch. 1
or journeymen, should exercise, in Shrewsbury, or within a certain
district round that town, any of the trades mentioned in the title^ of
the company. The cause was tried at the last assizes for Shropshire,
before Heath, Serjeant, and a verdict found for the plaintiffs. On
Thursday, the 13th of April, Howorth obtained a rule to shew cause,
why a nonsuit should not be entered, or a new trial granted ; and the
case came on to be argued, this day, by Bearcroft, for the plaintiffs,
and Howorth, for the defendant.
1. The ground for the nonsuit was, that the plaintiffs had not proved
the existence of such a company as that described on the record.
The evidence on this head consisted of entries of admissions, (some
as far back as the reign of Henry 8.) of persons, some into the car-
penters' company, some into the bricklayers' company, some into the
plaisterers' company, etc. ; of instances of fines paid for having work-
ed in those trades, without being free of the carpenters' company, of
the bricklayers' company, etc. ; and of the testimony of one witness
(who was only twenty- four years of age) who said, he had been em-
ployed to call meetings of the company, and that they were called by
the aggregate name stated in the declaration. The Judge told the jury,
that the companies might be distinct corporations for some purposes,
and yet form but integral parts of one great corporate body; that
such a corporate body might legally exist ; and whether, in fact, it did
exist, was a question for their decision. For the defendant it was
objected at the trial, and now, that the evidence given was only proof,
at most, of separate incorporated companies, there being no instances
of admissions into the aggregate body; no common seal; nor any
proof of any corporate parole act done by them. The evidence of the
witness was said to be of so recent a nature, that it ought not to have
had any weight.
Lord Mansfield. 13 1. It was properly left to the jury to consider,
whether the evidence produced was sufficient to shew, that there was
such a company ; for that was a mere question of fact ; and they were
to decide on its existence, and whether it was originally created by a
charter from the crown, or was only a voluntary society. There was
evidence of its existence as a corporation. 2. The witnesses rejected
were clearly interested in the question. If the company had failed
in establishing the custom, they would have been discharged from ac-
tions to which they are liable for the breach of it.
WillES, and Ashhurst, Justices, of the same opinion.
BullER, Justice. 1. Whether there be any evidence, is a question
for the Judge. Whether sufficient evidence, is for the jury. 2. The
objection to the witness produced for the defendant was certainly de-
cisive: nor is it true, that he could have had no other sort of witness-
es. The employers might have been witnesses.
The rule discharged.
13 Statement condensed.
Sec. 1) THE BURDEN OP PROOF 15
REX v. ALMON.
(Court of King's Bench, 1770. 5 Burrows. 2686.)
The defendant having been convicted of publishing a libel, (Junius's
letter,) in one of the magazines called the London Museum ; which
was bought at his shop, and even professed to be "Printed for him."
His counsel moved, on Tuesday, 19th June, 1770, for a new trial ;
upon the foot of the evidence being insufficient to prove any criminal
intention in Mr. Almon, or even the least knowledge of their being
sold at his shop.
On Wednesday, 27th June, 1770, it came on again; and
Serjeant Glynn argued that the proof against Mr. Almon appeared
therefore to be defective : there was nothing to constitute criminality,
or induce punishment.
That after the jury had been out about two hours, one of them
(Mr. Mackworth) proposed a doubt "Whether the bare proof of the
sale in Mr. Almon's shop, without any proof of privity, knowledge,
consent, approbation, or malus animus, in Mr. Almon himself, was
sufficient in law to convict him criminally of publishing a libel."
Mr. Mackworth understood his lordship's answer to this doubt to
be this — "That this was conclusive evidence." Otherwise, Mr. Mack-
worth was convinced in his own mind, that the defendant ought not
to be found guilty upon this evidence ; nor would he have found him
guilty. He certainly gave his verdict under a mistake. If he had ap-
prehended that the jury were at liberty to exercise their own judgment,
he would have acquitted the defendant. The serjeant prayed that Mr,
Mackworth's affidavit might be read.
Lord Mansfield. You know, it can't be read.
Mr. Justice Aston. A juryman's affidavit with regard to his senti-
ments in point of law, at the trial, ought not to be admitted ; what-
ever may be the case of his affidavit tending to rectify a mistake in
fact. 14
The Court were of opinion, that none of the matters urged on be-
half of the defendant, nor all of them added together, were reasons
for granting a new trial ; whatever weight they might have in extenu-
ation of his offence, and in consequence lessening his punishment.
For, they were exceedingly clear and unanimous in opinion, that this
pamphlet being bought in the shop of a common known bookseller
and publisher, importing by its title-page to be printed for him, is a
sufficient prima facie evidence of its being published by him: not in-
deed conclusive, because he might have contradicted it, if the facts
would have borne it, by contrary evidence. But as he did not offer any
evidence to repel it, it must (if believed to be true) stand good till an-
swered, and be considered as conclusive, till contradicted.
i* Statement condensed, and concurring opinions of Aston, Willes, and
Ashhurst, JJ., omitted.
16 THE COURT AND THE JURY (Ch. 1
Lord Mansfield said and repeated that Mr. Mackworth had un-
derstood him perfectly right : and he was very glad to find that there
was no doubt of what he had said. The substance of it was, that in
point of law, the buying the pamphlet in the public open shop of a
known professed bookseller and publisher of pamphlets, of a person
acting in the shop, prima facie is evidence of a publication by the mas-
ter himself: but that it is liable to be contradicted, where the fact
will bear it, by contrary evidence tending to exculpate the master, and
to shew that he was not privy nor assenting to it nor encouraging it..
That this being prima facie evidence of a publication by the master
himself, it stands good till answered by him: and if not answered at
all, it thereby becomes conclusive so far as to be sufficient to convict
him. That proof of a public exposing to sale and selling, at his shop
by his servant, was prima facie sufficient; and must stand till con-
tradicted or explained or exculpated by some other evidence ; and if
not contradicted explained or exculpated, would be in point of evi-
dence sufficient or tantamount to conclusive. Mr. Mackworth's doubt
seemed to be "Whether the evidence was sufficient to convict the de-
fendant, in case he believed it to be true." And in this sense I an-
swered it. Prima facie, 'tis good ; and remains so, till answered. If
it is believed, and remains unanswered, it becomes conclusive. If it
be sufficient in point of law, and the juryman believes it, he is bound
in conscience to give his verdict according to it.
In practice, in experience, in history, in the memory of all persons
living, this is (I believe) the first time that it was ever doubted "That
this is good evidence against a bookseller or publisher of pamphlets."
The constant practice is, to read the libel, as soon as ever it has been
proved to be bought at the defendant's shop. This practice shews
that it is considered as already proved upon the defendant: for, it
could not be read against him, before it had been proved 15 upon him.
If I am mistaken, I. am entirely open to alter my opinion, upon be-
ing convinced that it is a wrong one: but, at present, I take this
point to be as much established, as that an eldest son is, (in general)
heir to his father. And being evidence prima facie, it stands (if be-
lieved) till contrary proof is brought to repel it.
Rule discharged.
DAVIS v. HARDY.
(Court of King's Bench, 1827. 6 Barn. & C. 225.)
Case for malicious prosecution of the plaintiff on a charge of em-
bezzlement.
At the close of the plaintiff's case, the defendant's counsel ob-
jected that as Davis had received the amount of the chaise-hire, and
had not paid it either to the proprietor or to Hardy, and had not
is But see The King v. Stone, 6 Terra Rep. 527 (1796) post, 108.
Sec. 1) THE BURDEN OF PROOF IT
mentioned to the latter that he had received it, there was probable
cause for preferring the indictment, and that the plaintiff must there-
fore be nonsuited. The learned judge thought that there was sufficient
proof of want of probable cause; and the defendant then proceeded
with his case, and called as a witness_Stainer, the proprietor of ihe
chaise. He stated, that in 1823 Hardy was his customer, and that
Davis, on the 25th of May, 1823, ordered the chaise in his (Hardy's)
name to go to Taunton : he did not see Davis for a month or two
afterwards, but when he did see him, he asked him when he meant
to pay him the money he owed him. Davis said he owed him for some
post-chaise hire of his own; to which Stainer replied, "If you cannot
pay me for what you owe me yourself, pay me for the job to Taun-
ton, or I will tell Mr. Hardy." Davis then requested Stainer not to
tell Mr. Hardy, for it would do him a great deal of injury. Stainer
saw Davis again in about a month, when Davis promised to pay him ;
he stated further, that he did not tell Hardy that the chaise had been
ordered in his name until he heard that Davis had been suspended
upon some charges that had been presented against him, and on cross-
examination as to the time when he had been paid by Hardy, he
said first it was a week or two after the examination, then a very
short time before the indictment, then a day or two before the in-
vestigation. Gaselee, J., said, that as it then appeared that Davis
had desired Stainer not to communicate to Hardy that the chaise-hire
had not been pafd, he was of opinion that that circumstance, coupled
with the fact of Davis's not having mentioned to Hardy his having
received it from the assignee, (though not sufficient to support the
indictment,) afforded a probable cause for preferring it. The coun-
sel for the plaintiff then insisted that it ought to be left to the jun-
to find whether they believed Stainer's evidence. The learned judge
said that there was no contradictory evidence, as to the fact of Davis
having desired Stainer to conceal from Hardy that the chaise-hire
had not been paid; and he refused to leave any question to the jury,
and nonsuited the plaintiff. A rule nisi for setting aside the nonsuit
had been obtained in last Easter term, upon the ground that it ought
to have been left to the jury to decide whether they believed Stainer's
evidence or not. 16
Abbott, C. J. I think that the nonsu it in this case was proper, and
that the rule for setting it aside must be discharged. The question for
our consideration is not, whether Davis was guilty of the charge pre-
ferred against him, nor whether the indictment was preferred from
an improper motive ; but the question is, whether Hardy the pros-
ecutor had a reasonable or probable cause for preferring the charge
against Davis; and I am of opinion, upon the evidence given at the
trial, that there was probable cause for his making that charge. The
i 6 Statement condensed.
Hint.Ev.— 2
l,..
18 THE COURT AND THE JURY (Ch. 1
facts are these: Davis hired the chaise in the name of Hardy, and
received from the assignee of the bankrupt the amount of the chaise-
hire; he did not pay it to the innkeeper who let the chaise, nor to
Hardy, in whose name it was hired, nor did he ever mention to the
latter that he had received the amount. Upon a charge being prefer-
red against him, he was examined before the magistrates, and one of
the magistrates was called as a witness on the part of the plain-
tiff, and proved that he admitted most of the facts above stated. That
being the case upon the part of the plaintiff, the learned Judge was
of opinion that there was sufficient prima facie evidence 17 of the want
of probable cause for preferring the indictment, and he refused to
nonsuit the plaintiff. Stainer the innkeeper, who was the proprietor of
the chaise, was then called as a witness on the part of the defendant
He proved that the chaise-hire was not paid to him ; that he applied
to Davis twice for it; and that upon his threatening, that unless he
was paid he would tell Mr. Hardy, Davis requested him not to tell
Mr. Hardy that it was not paid, as it would do him a great injury.
Now, if that fact, which was proved by Stainer, had been proved in
the course of the plaintiff's case, there can be no doubt that it would
have been evidence of a probable cause for preferring the charge : but
it is said, that it ought to have been submitted to the jury as a question
of fact, whether Davis ever did request Stainer not to inform Hardy
that he, Davis, had received the money. But where a witness is un-
impeached in his general character, and uncontradicted by testimony
on the other side, and there is no want of probability in the facts which
he relates, I think that a judge is not bound to leave his credit to the
jury, but to consider the facts he states as proved, and to act upon
them accordingly. I think, therefore, that the Judge was well war-
ranted in coming to the conclusion in this case, that there was a prob-
able cause for preferring the indictment, and this rule must therefore
be discharged.
Bailey, J. I think that in this case there was sufficient evidence of
probable cause, and such evidence, too, as a jury ought to be directed
to proceed upon. If there is nothing in the demeanor of a witness, or
in the story he tells, to impeach his credit, and he is not contradicted
by testimony on the other side, it is not a case for a jury to deliberate
upon. If the case had been submitted to the jury, and they had disbe-
lieved this witness, I think that we should have been bound to send
the case down to a new trial.
Rule discharged. 18
17 When the question of probable cause is submitted to the jury, the plain-
tiff has the burden of convincing thein of the want of probable cause. Abrath
v. North Eastern Ry. Co., L. R. 11 Q. B. D. 440 (18S3). In an action for
false imprisonment, the right to arrest on reasonable suspicion is treated as
an affirmative defense. Ocean Steamship Co. v. Williams, 69 Ga. 251 (1S82).
is See same result in McCormack v. Standard Oil Co., 60 N. J. Law, 243,
37 Atl. 617 (1S97) ; Menominee River Sash & Door Co. v. Milwaukee & N.
SeC. 1) THE BURDEN OF FROOF 19
MITCHELL v. JENKINS.
(Court of King's Bench, 1S:J3. 5 Barn. & Adol. 5S8.)
Case for malicious prosecution of a civil action in which the defend-
ant had caused the plaintiff to be arrested on a demand for £45.,
though he was aware of a set-off to the amount of £16.
The learned judge was of opinion that, as there existed a set-off,
which reduced Jenkins' demand, Mitchell ought not to have been ar-
rested for more than the balance ; and that Jenkins therefore had no
reasonable or probable cause for arresting him for the sum of £45.
As to the question of malice, he said there were two kinds of malice —
malice in law and malice in fact; and that in this case there was
malice in law, inasmuch as the act of causing Mitchell to be arrested
for a larger sum than was due was wrongful ; and that the only ques-
tion for the consideration of the jury was the amount of damages.
The jury found a verdict for the plaintiff, damages £20. A rule nisi
having been obtained for a new trial, on the ground that the question
whether Jenkins acted maliciously ought to have been left to the jury,
Follett now shewed cause. 10
Denman, C. J. Every arrest by a creditor for more than is due is,
in some sense, a wrongful act. By statute, if it be made without rea-
sonable or probable cause, though with an entire absence of malice,
the party arresting may be deprived of his costs, and at common law,
if the party arrested has suffered damage to a greater extent than those
costs, he may, if the arrest was also made maliciously, bring his action
on the case. In that action, however, it is still incumbent on the plain-
tiff to allege and to prove malice as an independent fact; though it
may in some instances be fairly inferred by the jury from the arrest
itself, and the circumstances under which it is made, without any
other proof. They, however, are to decide, as a matter of fact, whether
there be malice or not. I have always understood the question of rea-
sonable or probable cause on the facts found to be a question for the
opinion of the Court, and malice to be altogether a question for the
jury. Here, the question of malice having been wholly withdrawn
from the consideration of the jury, there ought to be a new trial.
Parke, J. I am also of opinion that there ought to be a new trial,
on the ground that the learned Judge withdrew' altogether from the
consideration of the jury the question of malice. I have always un-
derstood, since the case of Johnstone v. Sutton, 1 T. R. 510, which
Ry., 91 Wis. 447, 65 N. W. 176 (1S95) ; Woodstock v. Canton, 91 Me. 62, 39
Atl. 281 (1897). In some cases a verdict cannot be directed on uncontradicted
testimony, because tbere may be a question of credibility, where the witness
is interested or biased. Koehler v. Adler, 7S N. Y. 287 (1879). In a lew juris-
dictions it appears to be held that there is a question of credibility in all
cases of oral testimony. Giles v. Giles, 201 .Mass. 883, 90 i\. E. 593 (1910).
io Statement condensed and concurring opinion of Taunton, J., omitted.
20 THE COURT AND THE JURY (Ch. 1
was decided long before I was in the profession, that no point of law
was more clearly settled than that in every action for a malicious pros-
ecution or arrest, the plaintiff must prove what is averred in the dec-
laration, viz., that the prosecution or arrest was malicious and without
reasonable or probable cause : if there be reasonable or probable cause,
no malice, however distinctly proved, will make the defendant liable ;
but when there is no reasonable or probable cause, it is for the jury to
infer malice from the facts proved. That is a question in all cases for
their consideration, and it having in this instance been withdrawn from
them, it is impossible to say whether they might or might not have
come to the conclusion that the arrest was malicious. It was for them
to decide it, and not for the Judge. I can conceive a case, where there
are mutual accounts between parties, and where an arrest for the
whole sum claimed by the plaintiff would not be malicious ; for exam-
ple, the plaintiff might know that the set-off was open to dispute, and
that there was reasonable ground for disputing it. In that case, though
it might afterwards appear that the set-off did exist, the arrest would
not be malicious. The term "malice" in this form of action is not to
be considered in the sense of spite or hatred against an individual, but
of malus animus, and as denoting that the party is actuated by improper
and indirect motives. That would not be the case where, there being
an unsettled account, with items on both sides, one of the parties,
believing bona fide that a certain sum was due to him, arrested his
debtor for that sum, though it afterwards appeared that a less sum
was due ; nor where a party made such an arrest, acting bona fide un-
der a wrong notion of the law and pursuant to legal advice. The
question of malice having in this case been wholly withdrawn from
the jury, I think the rule for a new trial must be made absolute.
Patteson, J. The whole argument for the defendant may be
shortly summed up thus : The question of malice ought to have been
submitted to the jury, who might have inferred it from the want of
probable cause ; but they were not bound of necessity so to do. Here
it was not left to the jury to infer malice: if the jury are to be told
that where a want of probable cause is proved, malice must neces-
sarily be inferred, it will, in future, be only necessary in every case
to prove want of probable cause; whereas, it is essential for a plain-
tiff to prove facts from which the Judge may decide that there is
want of probable cause, and the jury that there is malice.
Rule absolute.
TOOMEY v. LONDON, B. & S. C. RY. CO.
(Court of Common Pleas, 1857. 3 C. B. [N. S.] 146.)
This was an action on the case for damages on account of personal
injuries alleged to have been caused by the negligence of the defendant
in respect to the condition of its station.
Sec. 1) THE BURDEN OF PROOF 21
The cause was tried before 'Cresswell, J., at the first sitting at West-
minster in this term. The facts were as follows : The plaintiff, a poor
and illiterate person who carried on the employment of a hawker, went
to the Forest Hill station of the London, Brighton, and South Coast
Railway, for the purpose of proceeding to London by the 10:30 p. ra.
train. Whilst waiting there, he inquired- of a person on the platform,
unconnected with the railway, where he should find a urinary : this
person told him to go to the right : he did so, and found two doors, up-
on one of which was painted the words "For gentlemen," and upon the
other the words "Lamp-room ;" there being a light over the former,
but none over the latter. The plaintiff, being in a hurry, and unable to
read, opened the wrong door, stepped forward, and fell down some
steps, breaking two of his ribs, and otherwise seriously hurting himself.
There was no evidence as to the description of the steps down which
the plaintiff fell, nor as to the state in which the door of the lamp-room
was ordinarily kept : but the plaintiff's son stated, that, when he went
some time after the accident to look at the place, he found the door
locked.
On the part of the defendants, it was submitted that there was no
evidence to go to the jury of negligence, and that the accident was
attributable entirely to the plaintiff's own want of caution in going
hastily and in the dark through a strange door.
The learned judge was of this opinion, and the plaintiff was non-
suited, with leave to move to enter a verdict for £35 (agreed damages),
if the court should be of opinion that there was evidence which ought
to have been submitted to the jury. 20
Williams, J. I am of opinion that there should be no rule in this
case. I think there was no evidence of negligence on the part of the
company or their servants which ought to have been submitted to the
jury. It is not enough to say that there was some evidence ; for,
every person who has had any experience in courts of justice knows
very well that a case of this sort against a railway company could
only be submitted to a jury with one result. A scintilla of evidence, or
a mere surmise that there may have been negligence on the part of the
defendants, clearly would not justify the judge in leaving the case to
the jury : there must be evidence upon which they might reasonably and
properly conclude that there was negligence. All that appeared, was
that the plaintiff inquired of a stranger the way to the urinal, and,
being told to go in a particular direction where there were two doors,
unfortunately opened the wrong one, and through his own careless-
ness fell down some steps. If there had been any evidence to show
that these steps were more than ordinarily dangerous, that possibly
might have led to a different conclusion. Rut all that appears, is, that
the door in question led down some steps into a room which was used
for the purposes of the company, and not for the convenience of the
20 Statement condensed.
22 THE COURT AND THE JURY (Cll. 1
public. I cannot say that there was such evidence of negligence in the
defendants as the learned judge was bound to leave to the jury.
WilxES, J. I am entirely of the same opinion. In order to estab-
lish a case of negligence against the defendants, it was incumbent on
the plaintiff to prove some fact which was more consistent with neg-
ligence than with the absence of it. There was nothing of the sort
proved here. There was nothing to show that the door and the steps
beyond were more than ordinarily dangerous ; and it was necessary and
proper that something of the sort should be there for the convenient
use of the- station by the company. It would be difficult so to arrange
every part of a station as to render it impossible for careless persons
to meet with injury. I think the plaintiff failed to make out that he
sustained the injury complained of through any negligence of the
company or their servants.
Rule refused. 21
WAKELIN v. LONDON & S. W. RY. CO.
(House of Lords, 18S6. L. R. 12 App. Cas. 41.)
Appeal from a decision of the Court of Appeal.
The action was brought by the administratrix of Henry Wakelin
jn behalf of herself and her children under Lord Campbell's Act,
9 & 10 Vict. c. 93.
The statement of claim alleged that the defendant's line between
Chiswick Station and Chiswick Junction crossed a public footway, and
that on the 1st of May, 1882, the defendants so negligently and un-
skillfully drove a train on the line across the footpath and so neg-
lected to take precautions in respect of the train and the crossing that
the train struck and killed one Henry Wakelin the plaintiff's husband
whilst lawfully on the footpath.
The statement of defence admitted that on that day the plaintiff's
husband whilst on or near the footpath was struck by a train of the
defendants, and so injured that he died, but denied the alleged negli-
gence ; did not admit that the deceased was lawfully crossing the line
at the time in question ; and alleged that his death was caused by his
ai- A few years before, the same court in Jewell v. Parr, 13 C. B. 909 (1S53J,
stated the rule as follows: "Applying the maxim 'de minimis non curat lex,'
when we say that there is no evidence to go to the jury, we do not mean
that there is literally none, but that there is none which ought reasonably
to satisfy a jury that the fact sought to be proved is established. There may
be evidence upon which a jury may properly proceed, although the contrary
is possible; for instance, when the question is whether a certain document
is in the handwriting of A. B., and a witness conversant with the handwrit-
ing of that person states that he believes it was written by him, it is con-
sistent with that evidence that the document may not be in the handwriting
of A. B., and yet the jury would be well warranted in coming to the con-
clusion that it was, even though there might be witnesses on the other side
to pledge their belief that it was not."
Sec. 1) THE BURDEN OF PROOF 23
own negligence and that he might by the exercise of reasonable cau-
tion have seen the train approaching and avoided the accident.
At the trial before Manisty, J., and a special jury in Middlesex in
December, 1883, the following evidence was given on behalf of the
plaintiff. It appeared from the defendants' answers to interrogatories
that the crossing was a level crossing open to all foot passengers;
that the approaches to the crossing on each side of the line were guard-
ed by hand gates ; that there was a slight curve at the crossing ; that
assuming the deceased to have been crossing the line from the down
side and standing inside the hand gates, but not on the line, he could
nave seen a train approaching on the down side at a distance of
nearly if not quite half a mile, but that when standing in the centre
of the line he could have seen a train approaching on the down side
at a distance of more than one mile; that the body of the deceased
was found on the down side of the line and that he was run upon and
killed by a down train ; that the engine carried the usual and proper
head lights which were visible at the distances above mentioned ; that
the company did not give any special signal or take any extraordinary
precautions while their trains were travelling over the crossing; that
a watchman in the company's employ was on duty from 8 a. m. to 8 p.
m. to take charge of the gates and crossing and amongst other duties
to provide for the safety of foot passengers.
Oral evidence was given that from the cottage where the deceased
lived it would take about ten minutes to walk to the crossing, that
he left his cottage on the evening of the 1st of May after tea, and
that he was never seen again till his body was found the same night
on the down line near the crossing. There was no evidence as to the
circumstances under which he got onto the line. Witnesses for the
plaintiff gave evidence (not very intelligible) as to the limited number
of yards at which an approaching train could be seen from the cross-
ing, and as to obstructions to the view.
The defendants called no witnesses, and submitted that there was
no case. Manisty, J., left the case to the jury, who returned a verdict
for the plaintiff for £800. The Divisional Court (Grove, J., Huddles-
ton, B., and Hawkins, J.) set aside the verdict and entered judgment
for the defendants. The Court of Appeal (Brett, M. R., and Bowen
and Fry, L. JJ.) on the 16th of May, 1884, affirmed this decision. In
the course of his judgment, Brett, M. R., said that in his opinion the
plaintiff in this case was not only bound to give evidence of negligence
on the part of the defendants which was a cause of the death of the
deceased, but was also bound to give prima facie evidence that the
deceased was not guilty of negligence contributing to the accident, and
that by reason of the plaintiff having been unable to give any evidence
of the circumstances of the accident she had failed in giving evidence
of that necessary part of her prima facie case. 22
2 2 According to the Law Times Report. Brett, M. R.. had said in the Court
of Appeal: "According to the English law the cause of action in such a
24 THE COURT AND THE JURY CCh. 1
From this decision the plaintiff appealed.
Lord Halsbury, L. C. 2S My Lords, it is incumbent upon the plain-
tiff in this case to establish by proof that her husband's death has been
caused by some negligence of the defendants, some negligent act, or
some negligent omission, to which the injury complained of in this case,
the death of the husband, is attributable. That is the fact to be proved.
If that fact is not proved the plaintiff fails, and if in the absence of
direct proof the circumstances which are established are equally
consistent with the allegation of the plaintiff as with the denial of the
defendants, the plaintiff fails, for the very simple reason that the
plaintiff is bound to establish the affirmative of the proposition. "Ei
qui affirmat non ei qui negat incumbit probatio." I am not certain
that it will not be found that the question of onus of proof and of
what onus of proof the plaintiff undertook, with which the Court of
Appeal has dealt so much at large, is not rather a question of subtlety
of language than a question of law.
If the simple proposition with which I started is accurate, it is
manifest that the plaintiff, who gives evidence of a state of facts
which is equally consistent with the wrong of which she complains
having been caused by — in this sense that it could not have occurred
without — her husband's own negligence as by the negligence of the
defendants, does not prove that it was caused by the defendants'
negligence. She may indeed establish that the event has occurred
through the joint negligence of both, but if that is the state of the
evidence the plaintiff fails, because "in pari delicto potior est con-
ditio defendentis." It is true that the onus of proof may shift from
time to time as matter of evidence, but still the question must ulti-
mately arise whether the person who is bound to prove the affirmative
of the issue, i. e., in this case the negligent act clone, has discharged
herself of that burden. I am of opinion that the plaintiff does not do
this unless she proves that the defendants have caused the injury in
the sense which I have explained.
In this case I am unable to see any evidence of how this unfortunate
calamity occurred. One may surmise, and it is but surmise and not
evidence, that the unfortunate man was knocked down by a passing
train while on the level crossing; but assuming in the plaintiff's fa-
vour that fact to be established, is there anything to show that the
case was not that the accident was caused by the negligence of the defend-
ant, for if the plaintiff was guilty of contributory negligence, there was no
cause of action. The cause of action was that, as between the plaintiff and
defendant, the accident was caused solely by the negligence of the defendant
without any contributory negligence of the plaintiff. It was for the plain-
tiff to give prima facie evidence of his cause of action, and if he omitted to
give evidence of any material part of it. he must be nonsuited. He must
therefore negative contributory negligence on his part." Wakelin v. London
& South Western Ry. Co., 55 L. T. R. 709 (18S6).
23 Part of the opinions of Lord Halsbury and Lord Fitzgerald and all of
opinion of Lord Blackburn omitted.
See. 1) THE BURDEN OF PROOF 25
train ran over the man rather than that the man ran against the
train ? * * *
The body of the deceased man was found in the neighborhood of
the level crossing on the down line, but neither by direct evidence nor
by reasonable inference can any conclusion be arrived at as to the
circumstances causing his death.
It has been argued before your Lordships that we must take the
facts as found by the jury. I do not know what facts the jury are sup-
posed to have found, nor is it, perhaps, very material to inquire, be-
cause if they have found that the defendants' negligence caused the
death of the plaintiff's husband, they have found it without a frag-
ment of evidence to justify such a finding.
Under these circumstances, I move that the judgment appealed
from be affirmed, and the appeal dismissed.
Lord Watson. My Lords, in the view which I take of the evidence
adduced at the trial before Manisty, J., it may not be absolutely nec-
essary to say anything in regard to the onus which attaches to the
plaintiff in this and similar cases. I shall neverthless express my
opinion upon the point, because it was discussed in the judgments de-
livered in the Court of Appeal, and has been fully and ably argued at
your Lordships' bar.
It appears to me that in all such cases the liability of the defendant
company must rest upon these facts — in the first place that there was
some negligent act or omission on the part of the company or their
servants which materially contributed to the injury or death com-
plained of, and, in the second place, that there was no contributory
negligence on the part of the injured or deceased person. But it does
not, in my opinion, necessarily follow that the whole burden of proof
is cast upon the plaintiff. That it lies with the plaintiff to prove the
first of these propositions does not admit of dispute. Mere allega-
tion or proof that the company were guilty of negligence is altogether
irrelevant ; they might be guilty of many negligent acts or omissions,
which might possibly have occasioned injury to somebody, but had
no connection whatever with the injury for which redress is sought,
and therefore the plaintiff must allege and prove, not merely that they
were negligent, but that their negligence caused or materially con-
tributed to the injury.
I am of opinion that the onus of proving affirmatively that there was
contributory negligence on the part of the person injured rests, in the
first insiance, upon the defendants, and that in the absence of evi-
dence tending to that conclusion, the plaintiff is not bound to prove
the negative in order to entitle her to a verdict in her favour. That
opinion was expressed by Lord Hatherley and Lord Penzance in the
Dublin, Wicklow & Wexford Railway Company v. Slattery, 3 App.
Cas. 1169, 1180. I agree with these noble Lords in thinking that.
whether the question of such contributory negligence arises on a
of "not guilty," or is made the subject of a counter issue, it is sub-
26 THE COURT AND THE JURY (Ch. 1
stantially a matter of defence, and I do not find that the other noble
Lords, who took part in the decision of Slattery's Case, said anything
to the contrary. In expressing my own opinion, I have added the
words "in the first instance," because in the course of the trial the
onus may be shifted to the plaintiff so as to justify a finding in the
defendants' favour to which they would not otherwise have been en-
titled.
The difficulty of dealing with the question of onus in cases like the
present arises from the fact that in most cases it is well nigh impossi-
ble for the plaintiff to lay his evidence before a jury or the Court
without disclosing circumstances which either point to or tend to rebut
the conclusion that the injured party was guilty of contributory neg-
ligence. If the plaintiff's evidence were sufficient to show that the
negligence of the defendants did materially contribute to the injury,
and threw no light upon the question of the injured party's negligence,
then I should be of opinion that, in the absence of any counter-evi-
dence from the defendants, it ought to be presumed that, in point of
fact, there was no such contributory negligence. Even if the plaintiff's
evidence did disclose facts and circumstances bearing upon that ques-
tion, which were neither sufficient per se to prove such contributory
negligence, nor to cast the onus of disproving it on the plaintiff, I
should remain of the same opinion. Of course a plaintiff who comes
into Court with an unfounded action may have to submit to the in-
convenience of having his adversary's defence proved by his own wit-
nesses; but that cannot affect the question upon whom the onus lies
in the first instance. As Lord Hatherly said in Dublin, Wicklow &
Wexford Railway Company v. Slattery, 3 App. Cas. 1169: "If such
contributory negligence be admitted by the plaintiff, or be proved by
the plaintiff's witnesses while establishing negligence against the der
fendants, I do not think there is anything left for the jury to decide,
there being no contest of fact."
In the present case, I think the appellant must fail, because no at-
tempt has been made to bring evidence in support of her allegations up
to the point at which the question of contributory negligence becomes
material. The evidence appears to me to show that the injuries which
caused the death of Henry Wakelin were occasioned by contact with
an engine or a train belonging to the respondents, and I am willing
to assume, although I am by no means satisfied, that it has also been
proved that they were in certain respects negligent. The evidence goes
no further. It affords ample materials for conjecturing that the
death may possibly have been occasioned by that negligence, but it
furnishes no data from which an inference can be reasonably drawn
that as a matter of fact it was so occasioned.
I am accordingly of opinion that the order appealed from must be
affirmed.
Lord Fitzgerald. * * * It is not necessary for me to ado
another word, and I would refrain from doing so if there had not
Sec. 1) THE BURDEN OF PROOF 27
been some reasons given both in the Divisional Court and in the Court
of Appeal which I am not prepared to assent to without further con-
sideration. I understand the Master of the Rolls to have laid down
that the plaintiff in such a case is bound to establish, first, negli-
gence on the part of the defendants; second, that such negligence
caused the injury of which the plaintiff complains; and further, if
not involved in number 2, that the plaintiff was bound on his case to
give affirmative evidence of the negative proposition that he did not
negligently contribute to the accident. The latter proposition was not
very much pressed in argument before us. It is not necessary for
your Lordships to come to any decision on it, but I desire to guard my-
self against being supposed now to assent to it. * * *
Before the passing of Lord Campbell's Act, 9 & 10 Vict. c. 93, in a
common law action for an injury alleged to have been caused by the
negligence of the defendant, and when that most convenient plea
"not guilty" was permitted, I always understood that if the defendant
relied as a defence on contributory negligence, though he was permit-
ted to establish it under "not guilty," yet the issue lay on him, and I
am not aware that any different rule has been established since the
passing of that statute, or since the practice has been adopted of put-
ting in special defences, whether the action was at common law for a
personal injury or under the statute for a wrongful act causing the
death. The plaintiff does not in the statement of claim allege in terms
the absence of contributory negligence, and the defendant if he relies
on it does so affirmatively by special defence, as in the case now be-
fore us : "The defendants further say that the death of the said Henry
Wakelin was caused by his own negligence, and that he might and
could by the exercise of reasonable care and caution have seen the
train approaching and avoided the accident."
It has been truly said that the propositions of negligence and con-
tributory negligence are in such cases as that now before your Lord-
ships so interwoven as that contributory negligence, if any, is general-
ly brought out and established on the evidence of the plaintiffs' wit-
nesses. In such a case, if there is no conflict on the facts in proof,
the judge may withdraw the question from the jury and direct a ver-
dict for the defendant, or if there is conflict or doubt as to the proper
inference to be deduced from the facts in proof, then it is for the jury
to decide. But if the plaintiff can establish his case in proof without
disclosing any matters amounting to contributory negligence or from
which it can be reasonably inferred, then the defendant is left to give
such evidence as he can to sustain that issue.
It may be that the practice of the law has in this respect been al-
tered, or ought to be established on the basis pointed out by the Mas-
ter of the Rolls, but as yet that has not been shown to our satisfaction.
There is another proposition in the judgment of the Master of the
Rolls relating to the same subject-matter expressed thus: "But al-
though the plaintiff had given in the first instance prima facie evi-
28 THE COURT AND THE JURY (Cll. 1
dence of an absence of negligence on his part, if the defendant brought
forward evidence which was contradictory of that, then you came
again with the burden of proof upon the plaintiff, because, if upon the
conflict of that evidence, part of which was given by the plaintiff and
part by the defendant, the jury or the tribunal which had to try the
fact is left in doubt whether the plaintiff was or was not negligent,
contributing to the accident, the verdict and judgment must be for
the defendant, because the burden of proof lies wholly on the plain-
tiff." If the noble and learned Master of the Rolls means that if the
evidence is such that the jury might reasonably come to a conclusion
in favour of the plaintiff or might reasonably draw a contrary infer-
ence the case is to be withdrawn from the decision of the jury and a
verdict and judgment go for the defendant, I desire to say that I am
not to be taken as acquiescing in that proposition.
I am of opinion that the order of the Court of Appeal should be
affirmed.
Appeal dismissed. 24
24 For the various conflicting views on this subject In England, see Davey
v. Railway, 12 Q. B. 70 (1883); Bridges v. Railway, L. R. 7 H. L. C. 213
(1873); Railway v. Slattery, 3 App. Cas. 1155 (1878).
In the United States there is the same conflict- -Lamar, J., in Central Ver-
mont Rv. Co. v. White, 238 TJ. S. 507, 35 Sup. T!tv 865, 59 L. Ed. 1433, Ann.
Cas. 1916B, 252 (1915), says: "But it is a misnomer to say that the question
as to the burden of proof as to contributory negligence is a mere matter of
state procedure. For, in Vermont, and in a few other states, proof of plain-
tiff's freedom from, fault is a part of the very substance of his case. He
must not only satisfy the jury (1) that he was injured by the negligence of
the defendant, but he must go further and, as a condition of his right to
recover, must also show (2) that he was not guilty of contributory negli-
gence. In those states the plaintiff is as much under the necessity of prov-
ing one of these facts as the other; and as to neither can it be said that
the burden is imposed by a rule of procedure, since it arises out of the gen-
eral obligation imposed upon every plaintiff, to establish all of the facts
necessary to make out his cause of action. But the United States courts
have uniformly held that as a matter of general law the burden of proving
contributory negligence is on the defendant. The Federal courts have en-
forced that principle even in trials in states which hold that the burden
in on the plaintiff. Washington & G. Railroad v. Gladmon, 15 Wall. 401 (1),
407, 40S, 21 L. Ed. 114 (1872) ; Hough v. Texas & P. Railway Co., 100 U. S.
225, 25 L. Ed. 612 (1S79) ; Inland & S. Coasting Co. v. Tolson, 139 U. S. 551
(4), 557, 11 Sup. Ct. 653, 35 L. Ed. 270 (1S91) ; Washington & G. R. Co. v.
Harmon, 147 U. S. 581, 13 Sup. Ct. 557, 37 L. Ed. 284 (1893) ; Hemingway v.
111. Cent. R. R., 114 Fed. S43, 52 C. C. A. 477 (1902). Congress in passing the
federal Employers' Liability Act evidently intended that the federal statute
should be construed in the light of these and other decisions of federal courts,
Such construction of the statute was, in effect, approved in Seaboard Air
Line Ry. v. Moore, 22S U. S. 434, 33 Sup. Ct. 580, 57 L. Ed. 907 (1913). There
is, therefore, no error in failing to enforce what the defendant calls the
Vermont rule of procedure as to the burden of proof."
In Lane v. Crombie, 12 Pick. (Mass.) 177 (1S31), it was held that the
burden was on the plaintiff to establish freedom from contributory fault.
In Illinois the same rule was adopted, on the authority of Lane v. Crombie,
in Aurora Branch Ry. Co. v. Grimes, 13 111. 585 (1852). The same rule ap-
1*1 are to prevail in New York. Wieland v. President, etc., of Delaware & H.
Canal Co., 107 N. Y. 19, 60 N. E. 234, 82 Am. St. Rep. 707 (1901). But
see section 841b, Code Civ. Proc. (Amended in 1913), placing the burden on
Sec. 1) TOE BURDEN OF TROOF 29
ELLIOTT v. CHICAGO, M. &-ST. P. RY. CO.
(Supreme Court of the United States, 189.°,. 150 U. S. 245, 14 Sup. Ct. 85
37 L. Ed. 10G8.)
Mr. Justice Brewer. 25 The question in this case is as to the liability
of the company for the death of John Elliott. The company made
three defenses: (1) That it was guilty of no negligence; (2) that, if
there were any negligence, it was that of a fellow servant ; and (3)
that Elliott was guilty of contributory negligence. The supreme court
of the territory, in its opinion filed when the case was first in that court,
considered the last two defenses as sustained, and, because thereof, re-
versed the judgment in favor of the plaintiff. All of them have been
presented and fully argued in this court, but, as we consider the third
sufficient, it is unnecessary to notice the first two. We are of opinion
that the deceased was guilty of contributory 26 negligence, such as to
bar any recovery. flFis true that questions of negligence and contribu-
tory negligence are ordinarily questions of fact to be passed upon
by a jury ; vet, when the undisputed evidence is so. conclusi ve that
the court would be compelled to set aside a verdict returned in op-
position to it, it may withdraw the case from the consideration of the
jury, and direct a verdict7| Railroad Co. v. Houston, 95 U. S. 697,
24 L. Ed. 542; Schofield v. Railroad Co., 114 U. S. 615, 5 Sup. Ct.
1125, 29 L. Ed. 224; Railroad Co. v. Converse, 139 U. S. 469, 11 Sup.
Ct. 569, 35 L. Ed. 213; Aerkfetz v. Humphreys, 145 U. S. 418, 12
Sup. Ct. 835, 36 L. Ed. 758.
What, then, are the facts concerning the accident? It took place
at a station called "Meckling," a hamlet of two or three houses, and of
so little importance that at the time the company had no station agent
there. The main track of the defendant's road ran eastward and
westward in a straight line, and the ground was level. On the north
side of this track was a siding, 728 feet in length from switch to switch,
and distant from the main track at the maximum 16 feet. This siding
was die only extra track at the place. About 100 feet east from the
west switch was the depot, on the south of the track, and some 10
feet therefrom. Two hundred feet east of that was a small car house,
sixteen feet from the track. These were the only buildings on the
the defendant in actions for causing death. In Sackheim v. Pigueron, 21".
N. Y. 62, 109 N. E. 109 (1915), this statute was applied to a cause of action
which arose before the amendment.
2 6 Statement and part of opinion omitted.
za in the federal courts the defendant has the burden of establishing
tributorv negligence when it becomes a question for the jury. Central v.
mont By. Co. v. White, 23S U. S. 507, 35 Sup. Ct. S65, 59 L. Ed. 1433, Ann.
191GB, 252 (1915). In accordance with the ruling in the principal
a verdict may be directed for defendant on any other affirmative
Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261, 26 L. Ed. 639
(18S0), Illegality; Wallner v. Chicago Consol. Traction Co., 245 111. 11--. 91
N. E. in-,:; (1910), accord and satisfaction.
30 THE COURT AND THE JURY (Cll. 1
depot grounds. No cars were standing on the track or siding. The
day was clear, and there was nothing to prevent the deceased from
seeing all that was going on. He was foreman of a section gang, and
had been working on this track for 10 or more years. In expectation
of a coming freight train, his men had placed their hand car on the
siding. The train was due at 8 :25 a. m., but was, perhaps, five or ten
minutes late. It came from the west, and at this station made a double
flying switch. This was accomplished by uncoupling the train at two
places, thus breaking it into three sections. The first section, consist-
ing of the engine and 18 cars, moved along the main track, but, be-
fore the balance of the train reached the switch, (its speed having been
checked by brakes,) that was turned so that two cars (constituting
the second section, and under the control of a brakeman) passed onto
the siding. The rear section having been still further checked by
brakes, the switch was reset, so that it passed onto the main track,
following the first section. The rear section consisted of a flat car, a
box car, a caboose, and an empty passenger coach, and was under
the care of the conductor and one brakeman. As the second section
was thrown by the flying switch onto the siding, two of the men started
to push the hand car towards the east, so as not to be struck by the
approaching freight cars. The deceased, at the time the first section
passed the car house, was standing some sixteen feet west thereof,
and four or five feet from the track, talking with one of his men.
After a short conversation, the latter started towards the depot, while
the deceased walked eastward along the track until he had passed a
few feet beyond the car house, when he started hastily towards the
siding. His attention had apparently been called by the approach of the
two cars on the siding to the hand car, for he ma'de some call to the
men who were pushing that hand car. He crossed the main track diag-
onally, his face turned eastward. The rear section, coming along from
the west, struck and crushed him. This rear section, when it passed
the depot, was moving slowly, not faster than a walk, as one of the
witnesses testified. That it was moving quite slowly is evident from
the fact that it came to a stop after two cars and the caboose had passed
over the body of the deceased, and this though no special effort was
made to check them after the deceased had been struck, the conduc-
tor and brakeman on that section being unaware of the accident.
When he started to cross the track this approaching section was not
to exceed 25 or 30 feet from him.
It thus appears that the deceased, an experienced railroad man, on a
bright morning, and with nothing to obstruct his vision, started along
and across a railroad track, with which he was entirely familiar, with
cars approaching and only 25 or 30 feet away, and, before he gets
across that track, is overtaken by those cars and killed. But one ex-
planation of his conduct is possible, and that is that he went upon the
track without looking to see whether any train was coming. Such
Sec. 1) THE BURDEN OF PROOF 31
omission has been again and again, both as to travelers on the high-
way and employes on the road, affirmed to be negligence. The track
itself, as it seems necessary to iterate and reiterate, is itself a warning.
It is a place of danger. It can never be assumed that cars are not ap-
proaching on a track, or that there is no danger therefrom. It may
be, as is urged, that his motive was to assist in getting the hand car
out of the way of the section moving on the siding. But whatever his
motive, the fact remains that he stepped onto the track in front of
an approaching train, without looking or taking any precautions for
his own safety.
This is not a case in which one, placed in a position of danger
through the. negligence of the company, confused by his surroundings,
makes perhaps a mistake in choice as to the way of escape, and is
caught in an accident, for here the deceased was in no danger. He
was standing in a place of safety on the south of the main track. He
went into a place of danger from a place of safety, and went in without
taking the ordinary precautions imperatively required of all who place
themselves in a similar position of danger.
The trial court was right in holding that he was guilty of contribu-
tory negligence. So, without considering the other questions presented
in the record, the judgment will be affirmed. * * * 2T
27 Chapman, J., in Denny v. Williams, 5 Allen (Mass.) 1 (1S62): "The
question whether the jury have found a verdict for the plaintiff against the
weight of the evidence is not before us. That question could not be raised
in any way except by a motion for a new trial. If there was any evidence
which it was proper to submit to a jury, the judge was right in submitting
it to them, and the exception must be overruled. It is only in a very limited
class of cases that such a question can be brought to this court by exceptions.
They are cases where the evidence is insufficient in law to support a verdict.
Commonwealth v. Packard, 5 Gray (Mass.) 101 (1S55) ; Chase v. Breed, 5
Gray (Mass.) 440 (1S55) ; Commonwealth v. Merrill, 14 Gray (Mass.) 417,
77 Am. Dec. 336 (1S60) ; Polley v. Lenox Iron Works, 4 Allen (Mass.) 329
(1862). In such cases, a refusal of the judge to instruct the jury that the
evidence is insufficient is a good ground of exception. It is not necessary
that there should be absolutely no evidence. The rule, as stated in Browne
on the St. of Frauds, c. 15, § 321, is sustained by the authorities cited:
'Whether there has been a delivery and acceptance sufficient to satisfy the
statute of frauds is a mixed question of law and fact. But it is for the
court to withhold the facts from the jury, when they are not such as can
all'ord anv ground for rinding an acceptance; and this includes cases where,
though the court might admit that there was a scintilla of evidence tending
to show an acceptance, they would still feel bound to set aside a verdict
finding an acceptance upon that evidence.' What this scintilla is, needs to
be a little more definitely; otherwise it may be understood to include
all cases where, on a motion for a new trial, a verdict would be set aside,
as against the weight of the evidence. It would be Impossible to draw a
line theoretically, because evidence in its very nature varies from the weak-
est to the strongest, by imperceptible degrees. But the practical Line of dis-
tinction Is, that if the evidence is such that the court would Bel aside any
number of verdicts rendered upon it, toties quoties, then the cause should be
taken from the jury, by instructing them to find a verdict for the defendant.
On the other hand, if the evidence is such that, though one or two ver-
dicts rendered upon it would be set aside on motion, yet a second or third
verdict would be suffered to stand, the cause should not be taken from the
32 THE COURT AND THE JURY (Ch. 1
Mcdonald v. metropolitan st. ry. co.
(Court of Appeals of New York, 1901. 167 N. Y. 66, 60 N. E. 282.)
Martin, J. This action was for personal injuries resulting in the
death of the plaintiff's intestate, and was based upon the alleged neg-
ligence of the defendant. An appeal was allowed to this court upon
the ground of an existing conflict in the decisions of different de-
partments of the appellate division as to when a verdict may be direct-
ed where there is an issue of fact, and because in this case an erro-
neous principle was asserted, which, if allowed to pass uncorrected,
would be likely "to introduce' confusion into the body of the law."
Sciolina v. Preserving Co., 151 N. Y. 50, 45 N. E. 371. The court
having directed a verdict, the appellant is entitled to the most favor-
able inferences deducible from the evidence, and all disputed facts are
to be treated as established in her favor. Ladd v. Insurance Co., 147
N. Y. 478, 482, 42 N. E. 197; Higgins v. Eagleton, 155 N. Y. 466,
50 N. E. 287; Ten Eyck v. Whitbeck, 156 N. Y. 341, 349, 50 N. E.
963; Bank v. Weston, 159 N. Y. 201, 208, 54 N. E. 40, 45 L. R. A.
547. If believed, the testimony of the plaintiff's witnesses was suffi-
cient to justify the jury in finding the defendant negligent, and the
plaintiff's intestate free from contributory negligence. The evidence
of the defendant was in many respects in direct conflict, and, if cred-
ited, would have sustained a verdict in its favor. Whether the de-
fendant was negligent, the plaintiff's intestate free from contributory
negligence, and the amount of damages, were submitted to the jury.
It, however, having agreed upon a general verdict, and failed to an-
swer the questions submitted, the trial judge withdrew them, and di-
rected a verdict for the defendant. Upon the verdict so directed, a
' judgment was entered. Subsequently an appeal was taken to the ap-
pellate division, where it was affirmed, and the plaintiff has now ap-
pealed to this court.
Although there was a direct and somewhat severe conflict in the
evidence, the questions of negligence and contributory negligence were
clearly of fact, and were for the jury, and not for the court, unless
the right of trial by jury has been partially, if not wholly, abolished.
It was assumed below that the plaintiff's evidence established a case
which, undisputed, was sufficient to warrant a verdict in her favor.
But the court said that at the close of the defendant's evidence the
plaintiff's case had been so far overcome that a verdict in her favor
would have been set aside as against the weight of evidence. Upon
that alleged condition of the proof it held that the trial court might
jury, but should be submitted to them under instructions. This rule throws
upou the court a. duty which may sometimes be very delicate; but it seems
to be the only practicable rule which the nature of the case admits."
For the rule governing setting a verdict aside as against the evidence, see
Metropolitan Ry. Co. v. Moore, 121 U. S. 538, 7 Sup. Ct. 1334, 30 L. Ed. 102-'
(1887) : Jones v. Spencer, 77 L. T. R. 536 (1897).
Sec. 1) THE BURDER OF PROOF
have properly submitted the case to the jury if it saw fit, but that it
was not required to, as the verdict might have been thus set aside.
The practical result of that decision, if sustained, is in every close case
to vest in the trial court authority to determine questions of fact, al-
though the parties have a right to a jury trial, if it thinks that the
weight of evidence is in favor of one, and it directs a verdict in his
favor. There have been statements by courts which seem to lend some
justification to that theory, but we think no such broad principle has
been intended, and that no such rule can be maintained either upon
principle or authority. The rule that a verdict may be directed when-
ever the proof is such that a decision to the contrary might be set
aside as against the weight of evidence would be both uncertain and
delusive. There is no standard by which to determine when a verdict
may be thus set aside. It depends upon the discretion of the court.
The result of setting aside a verdict and the result of directing one
are widely different, and should not be controlled by the same con-
ditions or circumstances. In one case there is a retrial ; in the other
the judgment is final. One rests in discretion; the other upon legal
right. One involves a mere matter of remedy or procedure; the oth-
er determines substantive and substantial rights. Such a rule would
have no just principle upon which to rest.
While in many cases, even where the evidence is sufficient to sus-
tain it, a verdict may be properly set aside, and a new trial ordered,
yet that in every such case the trial court may, whenever it sees fit,
direct a verdict, and thus forever conclude the parties, has no basis in
the law, which confides to juries, and not to courts, the determination
of the facts in this class of cases. We think it cannot be correctly
said in any case where the right of trial by jury exists, and the evi-
dence presents an actual issue of fact, that the court may properly di-
rect a verdict. So long as a question of fact exists, it is for the jury,
and not for the court. If the evidence is insufficient, or if that which
has been introduced is conclusively answered, so that, as a matter of
law, no question of credibility or issue of fact remains, then, the ques-
tion being one of law, it is the duty of the court to determine it. But
whenever a plaintiff has established facts or circumstances which
would justify a finding in his favor, the right to have the issue of fact
determined by a jury continues, and the case must ultimately be sub-
mitted to it. The credibility of witnesses, the effect and weight of
conflicting and contradictory testimony, are all questions of fact, and
not questions of law. If a court of review, having power to examine
the facts, is dissatisfied with a verdict because against the weight or
preponderance of evidence, it may be set aside; but a new trial must
be granted before another jury, so that the issue of fact may be ul-
timately determined by the tribunal to which those questions are con-
fided. If there is no evidence to sustain an opposite verdict, a trial
court is justified in directing one, not because it would have authority
IItnt.Ev.— 3
34: THE COURT AND THE JURY (Ch. 1
to set aside an opposite one, but because there was an actual defect of
proof ; and hence, as a matter of law, the party was not entitled to
recover. Colt v. Railroad Co., 49 N. Y. 671 ; Bagley v. Bowe, 105 N.
N. Y. 171, 179, 11 N. E. 386, 59 Am. Rep. 488.
We have recently considered the question involved in the case at
bar, have practically reaffirmed the doctrine of the foregoing cases,
and have reviewed the cases upon which the court below seems to have
based its decision. Fealey v. Bull, 163 N. Y. 397, 57 N. E. 631. The
learned judge who delivered the opinion in that case plainly demon-
strated that the doctrine enunciated by the court below has no actual
support in Linkauf v. Lombard, 137 N. Y. 417, 33 N. E. 472, 20 L.
R. A. 48, 33 Am. St. Rep. 743, and Hemmens v. Nelson, 138 N. Y.
517, 34 N. E. 342, 20 L. R. A. 440. He shows that in those cases there
was no sufficient evidence to sustain the verdicts, and that, if there
had been, this court would have had no jurisdiction to reverse.. His
examination further discloses that the reversal in the Linkauf Case
was upon the ground that the proof amounted at most to a mere sur-
mise, and that in the Hemmens Case the principle that, if there is any
evidence upon a question of fact, it should be submitted to the jury,
was asserted. The clearness and ability with which the question was
discussed by him render it unnecessary to further consider it at this
time. We are of the opinion that a plain issue of fact was presented
for the jury; that the court erred in directing a verdict; that the
judgment and order should be reversed, and a new trial granted, with
costs to abide the event.
Parker, C. J., and Bartlett, Vann, Cullen, and Werner, JJ.,
concur. Gray, J., dissents.
Judgment reversed, etc. 28
WINANS et al. v. ATTORNEY GENERAL.
(House of Lords. [1904] App. Cas. 2S7.)
William Louis Winans was born in the United States in 1823. In
1859 he came to England and lived there in various places until his
death in 1897. By his will he bequeathed an annuity to a relative, and
the question in this appeal was whether he was at his death domiciled
in England. If he was, legacy duty was payable ; otherwise not. The
Attorney General having filed an information against the appellants
Cwho were the executors) to recover the duty, Kennedy and Philli-
more, JJ., held that the testator was at his decease domiciled in Eng-
land and that the duty was payable. This decision was affirmed by the
Court of Appeal (Collins, M. R., and Stirling and Mathew, L. JJ.)
zsAccord: Dublin Ry. Co. v. Slattery, 3 App. Cas. (H. of L.) 1155 (187S) ;
Phillips v. Phillips, 93 Iowa, G15, Gl N. W. 1071 (1895) ; Bailey v. Kobison,
l':;:; in. ci4, 84 n. e. goo (1908).
Compare Hite v. Metropolitan St. Ry. Co., 130 Mo. 132, 31 S. W. 262, 32
S. W. 33, 51 Am. St. Hep. 555 (1S95).
SeC. 1) THE BURDEN OF PROOF 35
Hence this appeal. The arguments turned entirely on the true infer-
ence of fact to be drawn from the evidence, which is fully stated in
Lord Macnaghteri's judgment.
Earl of Halsbury, L. C. My Lords, the short question here is
whether Mr. Winans was at the time of his death domiciled in this
ccomtry. So far as it is a question of law it is simple enough to state,
but when the law has been stated a difficult and complex question of
fact arises which it is almost always very hard to solve.
Now the law is plain, that where a domicil of origin is proved it lies
upon the person who asserts a change of domicil to establish it, and it
is necessary to prove that the person who is alleged to have changed his
domicil had a fixed and determined purpose to make the place of his
new domicil his permanent home. Although many varieties of ex-
pression have been used, I believe the idea of domicil may be quite
adequately expressed by the phrase — Was the place intended to be the
permanent home? Now Mr. Winans was an American citizen; he
resided in Russia for some time; he had various residences in Eng-
land, and great sporting leases in Scotland. He married in St. Peters-
burg a Guernsey lady. He had property in the United States, and he
originally came to England upon the recommendation of his medical
man. He lived a very long time in England, and if I were satisfied
that he intended to make England his permanent home I do not think
it would make any difference that he had arrived at the determination
to make it so by reason of the state of his health, as to which he was
very solicitous. It would be enough that for obvious reasons he had
determined to make England his permanent home. But was that his
determination ? I confess I am not able very confidently to answer that
question either way. I have been in considerable doubt, when I view
his whole career, whether he ever intended finally to remain here.
He had invented cigar-shaped boats, in which he took a deep interest
as inventor, and also as one who meant to travel back to his own coun-
try when his boats succeeded.
It may be that your Lordships do not think that he was likely to
succeed, but it may confidently be asserted that the inventor thor-
oughly believed that he would succeed. It is true that great reliance
might not only be placed upon his great acquisition of sporting areas
in Scotland, but, on the other hand, they were treated by him rather as
profit-making investments than because he himself was devoted to
sport; but even in this, as in some other parts of his conduct, it is
difficult to say that a certain inference could be deduced from what he
did. Being a man of enormous wealth, he never made such a home
for himself or his family as one would have expected if he had really
meant to remain permanently in England. Like all questions of fact
dependent upon a variety of smaller facts, it is possible to treat this
or that evidence as conclusive, and different minds will attribute dif-
ferent degrees of importance to the same facts.
36 THE COURT AND THE JURY (Ch. 1
I must admit that I have regarded the whole history of Mr. Winans'
life differently at different stages of the argument, and the conclusion
I have come to is that I cannot say that I can come to a satisfactory
conclusion either way ; but then the law relieves me from the embar-
rassment which would otherwise condemn me to the solution of an in-
soluble problem, because it directs me in my present state of mind to
consider upon whom is the burden of proof. Undoubtedly it is upon
the Crown, and, as I cannot bring myself to a conclusion, either way,
whether Mr. Winans did or did not intend to change his domicil, his
domicil of origin must remain, and I, therefore, am of opinion that the
judgment of the Court of Appeal ought to be reversed.
Orders of the Court of Appeal and of the Queen's Bench Division
reversed. 29
PELITIER v. CHICAGO, ST. P., M. & O. RY. CO.
(Supreme Court of Wisconsin, 1S94. 88 Wis. 521, 60 N. W. 250.)
Winslow, J. 30 * * * The instructions applicable to the fourth
question and to which plaintiff excepted will be given at length. After
instructing the jury that the burden of proof with reference to cer-
tain questions was on the plaintiff, the court said: "You are in-
structed that it is incumbent on the party upon whom the burden of
proof rests, to establish the existence of a fact in controversy, to sat-
isfy you by a preponderance of evidence that such fact does exist;
otherwise, you should find to the contrary — that is to say, you should
carefully weigh all the evidence produced by both parties bearing on
any such controversy, and determine upon which side such evidence
preponderates, if you can. If the same is so evenly balanced that you
cannot determine on which side the same preponderates, or if you
conclude that the preponderance of evidence is against the party on
whom the burden of proof rests, or if, notwithstanding there is to
your minds a preponderance of evidence tending to establish a fact in
controversy, you are yet not satisfied of its existence, your finding
should be against the party on whom the burden of proof rests. Such
finding should be in favor of the side on which the burden of proof
rests only when you are satisfied that the preponderance of evidence in
respect to the controversy tends to establish the existence of the fact
involved, and you are satisfied to a reasonable certainty that the fact
does exist which such preponderance of evidence tends to establish.
You are further instructed that the term 'preponderance of evidence,'
as here used, does not necessarily mean the greatest number of wit-
nesses. It frequently happens that there are more witnesses on one
side of a controversy than on the other, yet the greatest weight of evi-
29 Concurring opinion of Lord Macnaghten and dissenting opinion of Lord
Lindley omitted.
" Srntement and part of opinion omitted.
Sec. 1) THE BURDEN OP PROOF 37
dencc is on the side of the lesser number of witnesses; and in all such
cases it is the weight of evidence that counts, and should govern the
finding of a jury. Keep in mind what is here said in regard to the de-
gree of certainty to which you should arrive in respect to the exist-
ence of a fact in controversy in order to warrant a finding in favor of
the party on whom the burden of proof rests, and the explanation of
the term 'preponderance of evidence,' and apply the same to each
question submitted." * * *
The errors which appellant claims in these instructions will be con-
sidered in their order.
1. It is claimed that it was error to say that the jury must be sat-
isfied by the preponderance of the evidence, to a reasonable certainty,
that a fact existed before they could find such fact ; and it is said that
this expression means practically the same as the expression "satis-
fied beyond a reasonable doubt." The expression used by the court
was criticised in Allen v. Murray, 87 Wis. 41, 57 N. W. 979, but it did
not become necessary to pass upon it in that case. We have examined
the question, and are satisfied that the instruction is not erroneous.!
In the case of Beery v. Railway Co., 73 Wis. 197, 40 X. W. 687, an
instruction that the jury must feel "reasonably certain" of a fact
on which plaintiff's case depended was held correct; and it was said
that this did not mean that the proof must be clear and most satisfac-
tory, but only that "the preponderance of the evidence must convince
their judgment of the truth of the fact found." In Gores v. Graff,
77 Wis. 174, 46 N. W. 48, an instruction to the effect that there need
only be "a fair preponderance of the evidence tending to show the
existence of a fact" was distinctly disapproved; and it was held that
the instruction should have been that, "if the jury were satisfied by a
preponderance of the evidence that all the facts essential to a recov-
ery were proved, they should find for the plaintiff."
The instruction in question here seems to be entirely justified by the
doctrines laid down in these two cases. It is very pertinently said by
Mr. Justice Lyon in the last-named case that "there may have been '
a preponderance of evidence tending to prove such facts, or some or
all of them, and yet the evidence be quite insufficient to prove those
facts." A verdict in favor of the party who has the burden of proof
in any case is a solemn determination that certain facts exist. Should
such a determination be made merely because the evidence upon one
side is a trifle weightier than that upon the other, when the evidence
is so unsatisfactory that the judgment of the jury is not satisfied, nor
the reason convinced of the existence of the facts? We think not.
The expression frequently used by the trial courts and frequently an-
nounced by appellate courts is that the minds of the jury must be sat-
isfied or convinced by the preponderance of the evidence of the ex-
istence of a fact. Whitney v. Clifford, 57 Wis. 156, 14 N. W. 927.
When the mind is satisfied or convinced of the existence of a fact,
is not the mind reasonably certain of the fact? It seems to us that
38 THE COURT AND THE JURY (Ch. 1
this question must be answered in the affirmative. Expressions may
be found in text-books and decisions to the effect that a mere pre-
ponderance of the evidence is all that is required in civil cases, but it
will be found that this principle is generally laid down in contradis-
tinction with the rule of proof in criminal cases. 31 Whitney v. Clif-
ford, supra. In a general way this statement of the rule is correct,
but that does not make the amplification of the rule as given in this
case incorrect. Telford v. Frost, 76 Wis. 172, 44 N. W. 835, was much
relied on by appellant, but examination of the case clearly shows that
the question here raised was not there presented. The only question
there presented was as to the correctness of the general charge that
the verdict must be in accord with the greater weight of evidence, and
no request was made to charge the jury more specifically. Upon prin-
ciple and authority, therefore, we hold that the charge of the court
upon this subject, though expressed more strongly and emphatically
than is usual or perhaps advisable, was not error. * * *
Judgment affirmed. 32
BARFIELD v. BRITT.
(Supreme Court of North Carolina, 1854. 47 N. C. 41, 62 Am. Dec. 190.)
The declaration was for words spoken, charging the plaintiff with
murder by secretly poisoning one Jacob Britt. The words were proved
within time, and the case turned upon the plea of justification. The
defendant offered the dying declarations of Jacob Britt, charging the
plaintiff with the crime imputed to him by the words of the defendant,
which were objected to by the plaintiff's counsel, but admitted by
the Court. For this the plaintiff excepted.
The plaintiff's counsel asked the Court to instruct the jury that to
establish the plea of justification, the jury should have the same co-
gency of proof as if the plaintiff were on trial for his life under the
criminal charge of murder. This, the Court, however, refused ; and
3i At an early period a greater degree of certainty appears to have heen
required in some criminal cases than in civil cases generally. In Regina v.
Muscot, 10 Modern, 192 (1714), Parker, Chief Justice, in summing up the
evidence, said, inter alia: "There is this difference between a prosecution
for perjury and a hare contest about property, that in the latter case the
matter stands indifferent, and therefore a credible and probable witness shall
) inn the scale in favour of either party; but in the former, presumption is
ever to be made in favour of innocence, and the oath of the party will have
a regard paid to it, until disproved. Therefore to convict a man of per-
jury a probable, a credible witness is not enough; but it must be a strong
and clear evidence, and more numerous than the evidence given for the de-
fendant ; for else there is only oath against oath."
Somewhat later the rule requiring the jury to be satisfied beyond a rea-
sonable doubt in order to convict came to be applied to all strictly criminal
prosecutions.
8 2 See, also, Haskins v. Haskins, 9 Gray (Mass.) 390 (1S57).
SeC. 1) THE BURDEN OF TROOF 39
instructed the jury that a preponderance of evidence, as in a civil case,
was all that was necessary. For this, plaintiff further excepted.
Verdict for defendant. Judgment and appeal.
Battle, J. 33 Two questions are presented by the bill of exceptions :
First. Whether in the issues joined, upon the plea of justification,
trie dying declarations of Jacob Britt could be given in evidence by
the defendant, to prove the truth of the words for which the action
was brought? Secondly. Whether his Honor was right in refusing to
instruct the jury that the defendant must sustain his plea by the same
cogency of proof as would be required against the plaintiff, were he
on trial for his life, under a charge of murder ; but on the contrary,
saying to them that a preponderance of evidence, as in a civil case, was
all that was necessary. * * *
As the plaintiff is entitled to a. venire de novo for the error in ad-
mitting improper testimony, we might abstain from expressing an
opinion upon the second question ; but as that question may and prob-
ably will be raised upon the next trial, we will, for the guidance
of the parties, state now the view which we have taken of it. We
think his Honor was clearly right in declining to give the instruction
prayed : "that to sustain the plea of justification, it was necessary that
the jury should have the same cogency of proof they would require
in case the plaintiff were on trial for his life." To such an instruc-
tion the case of Kincade v. Bradshaw, 10 N. C. 63, was directly oppos-
ed ; it being held there, that in an action for slander, in charging a
plaintiff with perjury, the defendant is not bound, in support of his
plea of justification, to produce such evidence as would be requisite to
convict the plaintiff, if he were on trial for the offence. Taylor, C. J.,
in delivering the opinion of the court, concludes the argument thus:
"It cannot, therefore, be a correct rule that a jury should require the
same strength of evidence to find the fact controverted in a civil case,
which they would require to find a man guilty of a crime; but the
crime of perjury stands upon peculiar grounds and requires more evi-
dence to produce conviction than crimes in general : one witness is not
sufficient, because then there would be only one oath against another.
A man knowing another to have committed perjury, may forbear to
prosecute him, for the very reason that there is but one witness by
whom the crime can be proved: Shall he, therefore, be deprived of his
justification if sued in an action of slander, although he might be fur-
nished with convincing evidence of the truth of the words ? Both rea-
son and authority answer in the negative." The authority relied on
was the case of the Queen v. Muscot, 10 Mod. Rep. 192, where the
Chief Justice, Parker, expressed himself in similar terms.
After declining to give the instructions prayed, his Honor told the
jury "that a preponderance of evidence, as in a civil case, was all that
was necessary." If the very language used by his Honor is correctly
83 Part of opinion omitted.
40 THE COURT AND THE JURY (Ch. 1
set forth, it must be confessed that it is not very perspicuous, and on
that account not much calculated to enlighten the minds of the jury.
The case on trial was a civil case, and it could afford the jury very
little assistance to make it the standard of itself. But we suppose that
the words "any other" were omitted by mistake in making - out the
transcript, and that a fair interpretation of the charge, taken in con-
nection with the refusal to give that which was asked, is, that the
party upon whom lay the onus proband i must produce such a prepon-
derance of testimony as must satisfy the jury of the truth of his al-
legation, as he would have to do in any other civil case. If this be the
meaning of the charge, it is directly sustained by the case of Neal v.
Fesperman, decided at the last June Term, 46 N. C. 446. In that case
the Court say in conclusion "how far in favorem vitse this matter is
to be extended so as to require the court in a capital case, when the
evidence of guilt is direct, to charge the jury that they must be satis-
fied beyond a rational doubt, that is, that they should not have a ration-
al doubt of the truth of the evidence, or the credibility of the witness-
es, we are not now to say ; suffice it, in civil cases, if the jury are satis-
fied from the evidence that an allegation is true in fact, it is their duty
so to find, and they should be so instructed." It is unnecessary to pur-
sue the discussion further, as we think we have said enough to pre-
vent the recurrence of an error, if any was committed upon the second
point made in the case. For the error committed in the admission of
improper testimony, there must be a venire de novo.
PER Curiam. Venire de novo. 34
HOLT v. UNITED STATES.
(Supreme Court of the United States, 1910. 218 U. S. 245, 31 Sup. Ct. 2, 54
L. Ed. 1021, 20 Ann. Cas. 1138.)
Mr. Justice Holmes S5 delivered the opinion of the court:
The plaintiff in error was indicted in the circuit court for murder,
alleged to have been committed "within the Fort Worden Military
Reservation, a place under the exclusive jurisd'ction of the United
States." There was a trial and a verdict of guilty, without capital
s* When the commission of a crime was involved in a civil case, it was
formerly thought necessary to establish it with the same degree of certain-
ty as required in a criminal prosecution. Thurtell v. Beaumont, 1 Bing-
ham, 339 (1S23). But the later cases are generally in accord with the prin-
cipal case. Peoples v. Evening News. 51 Mich. 11, 16 N. W. 185, 691 (1883);
Edwards v. George Knapp & Co., 97 Mo. 432, 10 S. W. 54 (1888); Bell v.
McGinness, 40 Ohio St. 204, 48 Am. Rep. 673 (1SS3). For a class of civil cases
in which a very strong showing appears to be required, see Bosvile v. At-
torney General, L. E. 12 P. D. 177 (1887).
See Foster v. Graff, 287 111. 559. 122 N. E. S45 (1919), suggesting a possible
difference between the certainty required to establish the commission of a
crime by a third person and by a party to the action.
ss Part of opinion omitted.
Sec. 1) THE BURDEN OF PROOF 41
punishment, as allowed by statute. He was sentenced to imprisonment
for life, and thereupon brought this writ of error. 168 Fed.
141 * * *
The remaining exceptions relate to the charge. One was to a re-
fusal to embody an instruction requested as to reasonable doubt. The
court, however, gave full and correct instructions on the matter, and
indeed, rather anxiously repeated and impressed upon the jury the
clearness of the belief they must entertain in order to convict. See
Dunbar v. United States, 156 U. S. 185, 199, 39 L. Ed. 390, 395, 15
Sup. Ct. 325 ; 4 Wigmore, Ev. § 2497. Another exception was to the
refusal to give an instruction that "the presumption of innocence starts
with the charge at the beginning of the trial, and goes with [the ac-
cused] until the determination of the case. This presumption of in-
nocence is evidence in the defendant's favor," etc. The judge said:
"The law presumes innocence in all criminal prosecutions. We begin
with a legal presumption that the defendant, although accused, is an
innocent man. Not that we take that to be an absolute rule, but it is
the principle upon which prosecutions must be conducted; that the
evidence must overcome the legal presumption of innocence. And in
order to overcome the legal presumption, as I have already stated,
the evidence must be clear and convincing, and sufficiently strong to
convince the jury beyond a reasonable doubt that the defendant is
guilty," with more to the same effect. This was correct, and avoided
a tendency in the closing sentence quoted from the request to mislead.
Agnew v. United States, 165 U. S. 36, 51, 52, 41 L. Ed. 624, 629, 630,
17 Sup. Ct. 235. See also 4 Wigmore, Ev. § 2511.
After the jury had been sent out, they returned and asked the court
what constituted a reasonable doubt. 36 The court replied : "A reason-
able doubt is an actual doubt that you are conscious of after going over
so in Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, (1850) Chief
Justice Shaw gave the following definition which has figured so largely ever
since: "Then, what is reasonable doubt? It is a term often used, probably
pretty well understood, but not easily defined. It is not mere possible doubt ;
because every thing relating to human affairs, and depending on moral evi-
dence, is open to some possible or imaginary doubt. It is that state of the
case, which, after the entire comparison and consideration of all the evidence,
leaves the minds of jurors in that condition that they cannot say they feel
an abiding conviction, to a moral certainty, of the truth of the charge. The
burden of proof is upon the prosecutor. All the presumptions of law Inde-
pendent of evidence are in favor of innocence, and every person is presumed
to be Innocent until he is proved guilty. If upon such proof there Is reason-
able doubt remaining, the accused is entitled to the benefit of it by an acquit-
tal. For it is not sufficient to establish a probability, though a strong one
arising from the doctrine of chances, that the fact charged is more likely to be
true than the contrary; but the evidence must establish the truth of the fa< ;
to a reasonable and moral certainty, a certainty that convinces and directs
the understanding, and satisfies the reason and judgment, of those who are
bound to act conscientiously upon it. This vre take to be proof beyond rea-
sonable doubt; because if the law, which mostly depends upon considerations
of a moral nature, should go further than this, and require absolute certain-
ty, it would exclude circumstantial evidence altogether."
42 THE COURT AND THE JURY (Ch. 1
in your minds the entire case, giving consideration to all the testi-
mony and every part of it. If you then feel uncertain and not fully
convinced that the defendant is guilty, and believe that you are acting
in a reasonable manner, and if you believe that a reasonable man in
any matter of like importance would hesitate to act because of such a
doubt as you are conscious of having, that is a reasonable doubt, of
which the defendant is entitled to have the benefit." He denied the no-
tion that any mere possibility was sufficient ground for such a doubt,
and added that, in the performance of jury service, they should decide
controversies as they would any important question in their own af-
fairs. This was excepted to generally, and the court was asked to
add that if the jury found one fact inconsistent 8T with the guilt of the
defendant, they should acquit. The court already had given this in-
struction in the charge, and was not called upon to repeat it. As
against a general exception, the instructions given were correct. Some
other details in the trial are criticized, but we have dealt with all that
seem to us to deserve mention, and find no sufficient reason why the
judgment should not be affirmed.
Judgment affirmed. 38
II. Apportionment of the Burdens
BERTY v. DORMER.
(Court of King's Bench, 1701. 12 Mod. 526.)
Issue directed out of Chancery was, whether land assigned for pay-
ment of a legacy were deficient in value ; and issue was joined upon
the deficiency, the one alledging that it was deficient, and the other that
it was not.
PER Curiam. Though averring that it was deficient is such an af-
firmative as implies a negative, yet it is such an affirmative as turns
the proof on those that plead it. If he had joined the issue that the
3 7 in State v. Hawley, 63 Conn. 47, 27 Atl. 417 (1893), the defense relied on
was that the homicide had been committed by a third person, Flora Hawley.
Carpenter, J., in disapproving the instructions on this point, said: "It seems
to us that the evidence tending to connect Flora Hawley with the commis-
sion of the crime was not submitted to the jury just as it ought to have been.
The jury may have understood from the charge that, in order to have that
evidence avail the accused, it was necessary that they should be satisfied
beyond a reasonable doubt that she was guilty of the offense; whereas the
true question we think is whether there is such evidence tending to connect
her with the crime as will raise a reasonable doubt whether John Hawley
was guilty. That, and not whether Flora Hawley was guilty, was the ma-
terial question in this part of the case for the jury to determine."
3 8 it seems that in a criminal case the court may direct a verdict for de-
fendant on the ground that the evidence is not sufficient to establish guilt
beyond a reasonable doubt, though it might have been sufficient in a civil
case. People v. Gluck, 188 N. Y. 167, 80 N. E. 1022 (1907).
SeC. 1) THE BURDEN OP TROOP 43
lands were not of value, and the other had averred that they were,
the proof then had lain on the other side. If one plead infra aetatem,
which is no more than that he is not of age, and issue is thereupon, he
that pleads the infra aetatem must prove it. 30
DICKSON et al. v. EVANS.
(Court of King's Bench, 1794. 6 Term R. 57.)
This was an action upon, a promissory note of the defendant's pay-
able to the bankrupt. The defendant gave notice of set off, that the
bankrupt before and at the time of his bankruptcy was indebted to
him to a greater amount upon certain cash notes issued by the bank-
rupt before his bankruptcy, payable to bearer.
At the trial before Rooke, J., at Monmouth, the defendant produced
such notes as were mentioned in his set off, dated prior to the bank-
ruptcy, but did not prove when they came into his hands; on which
ground it was contended on behalf of the plaintiffs that the set off was
not established, it being incumbent on the defendant to shew that his
set off existed at the time of the bankruptcy, for that no debt accru-
ing to him subsequently would avail. But Mr. Justice Rooke, being
of opinion that the bearer of such notes was not called upon to prove
when he took them, that prima facie they must be taken to be fairly
obtained, and must have reference to the time of the date, which was
before the bankruptcy, and that if they had got to the hands of the
defendant subsequent to the bankruptcy, the onus probandi lay on
the assignees, nonsuited the plaintiffs. A motion for a new trial was
made in Easter term last, which came on to be argued in Trinity term
following: but it stood over for further consideration, it being un-
derstood that there was a similar case depending in the Court of Ex-
chequer. At the conclusion of the argument in Trinity term last Law-
rence, J., observed, that if the notes had been made payable to the de-
fendant himself, he should have thought it reasonable evidence of their
having come to his hands at the time they bore date. And now the case
was spoken to again by
Erskine and Lewis, who shewed cause against the rule.
Lord Kenyon, C. J. 40 I am of opinion on the words of the act of
parliament, on the reason of the thing, and on the authority of decided
cases, that the rule should be made absolute for setting aside the non-
suit. The words of the stat. 5 Geo. 2, c. 30, § 28, are express, that if
it shall appear to the commissioners that there has been mutual credit
given by the bankrupt, or mutual debts between the bankrupt and any
other person at any time before the bankruptcy, the commissioners
8 9 Opinion of Holt, C. J., omitted.
4" Opinion of Grose, J., omitted.
44 THE COURT AND THE JURY (Ch. 1
shall state the account &c. and what shall appear to be due &c. shall be
claimed or paid. That act was founded on good sense ; and it provides
that the assignees shall not recover against a debtor of the bankrupt
what was due to the bankrupt on one side of the account, without also
taking into consideration the other side of the account, and seeing on
which side the balance lies. That is the justice of the case. But it
would be most unjust indeed if one person, who happens to be in-
debted to another at the time of the bankruptcy of the latter, were per-
mitted by any intrigue between himself and a third person so to change
his own situation as to diminish or totally destroy the debt due to the
bankrupt by an act ex post facto. In cases of this sort the question
must be considered in the same manner as if it had arisen at the time
of the bankruptcy, and cannot be varied by any change of situation of
one of the parties. It is said however that the rule by which we are
to proceed in a Court of law under the statutes of set off is a different
rule from that by which the commissioners proceed under the statute
5 Geo. 2, c. 30: but it must be remembered that that act proceeded
on the law of the case, and applied the same rule to the commission-
ers of bankrupt. The cases, which have been decided on the statutes
of set off, are uniform. In addition to the cases cited there is that of
Lucas v. Marsh, Barnes, 453, 4to. edit., in which it was held that when
an indorsed note is set off by the defendant, it must be proved that it
was indorsed before the plea was pleaded. The whole of the pres-
ent case is resolvable into this question, on whom did the onus prob-
andi lie? That being settled, every thing else follows of course.
Now the cases of set off are understood to be in the nature of cross ac-
tions ; and if the defendant, instead of setting off these notes, had
brought his cross action against the assignees, he must have proved
every thing necessary to constitute his demand ; and the time when
the notes were indorsed would be one material ingredient in that
case; then, under this set off he must prove the same things. If the
commissioners had refused to allow this set off, and the defendant had
applied to the Lord Chancellor by petition, he must have set forth in
that petition that the notes were indorsed to him prior to the bank-
ruptcy, and he must also have proved it. Therefore the words of
the statute of bankrupts, the statutes of set off, the decisions on the
different statutes, and the forms of proceeding, all lead to this con-
clusion, that the onus probandi lay on the defendant, who wished to
avail himself of the debt arising from the possession of the notes, and
consequently that the nonsuit must be set aside.
Asi-ihurst, J. Much fraud and great injustice would be introduced
if any other rule than that laid down by Lord Kenyon were to pre-
vail. It is a general rule of evidence that in every case the onus
probandi lies on the person who wishes to support his case by a par-
ticular fact, and of which he is supposed to be cognizant; but it is
said in this case that it was incumbent on the assignees to prove the
SeC. 1) THE BURDEN OF PROOF 45
time when the defendant received these notes. But the assignees
could have no means of knowing that fact, whereas it must have been
known to the defendant ; and as the latter relied upon it as the ground
of his set off, and did not prove it, the assignees were entitled to re-
cover.
Per Curiam. Rule absolute.
WILSON et al. v. HODGES et al.
(Court of King's Bench, 1802. 2 East, 312.)
In debt on recognizance of bail, the breach assigned was, that Mich-
ell the principal had not paid the damages, nor rendered himself, &c.
according to the form and effect of the said recognizance. Plea;
that after the judgment, &c. and before the suing out the writs of scire
facias, and before the return of the writ of capias ad satisfacien-
dum against Michell upon the judgment, he Michell died: concluding
with a verification. Replication; that after the giving the judgment,
and before the suing out of the said writs of scire facias, or either of
them, the plaintiffs sued out a writ of capias ad satisfaciendum against
Michell, returnable, &c. to which the sheriff returned non est inventus :
and the plaintiffs further say, that Michell, at the said return of the
said writ of capias ad satisfaciendum, and afterwards, was living,
&c. which they are ready to verify. Rejoinder; that Michell was
not at the said return of the said writ of ca. sa. living, as the plaintiffs
had replied; concluding to the country: on which issue was joined.
At the trial before Le Blanc, J. at the sittings at Guildhall, the only
question was, Whether the issue lay on the defendants to prove the
death of Michell, or on the plaintiffs to prove that he was alive at
the time mentioned? The learned Judge thought that the proof of
the issue lay on the defendants, who averred the death of the party,
and they not being prepared with any proof of the fact, the verdict
passed for the plaintiffs on that ground. To set aside which Erskine
obtained a rule nisi in the last term, on the ground of a misdirection,
as well as on affidavit. Gibbs was now to have shewn cause. But
Lord Ellenborough, C. J., said, there was no doubt but that the
direction of the learned Judge was proper in point of law. And he
referred to the case of Throgmorton v. Walton 41 where it was de-
cided, that where the issue is upon the life or death of a person once
4i The following report of this case is given in 2 Kolle 461 (1G25):
"The plaintiff derived his title as heir at law of a sister; the defendant
proves that there were four sisters. And the question was who should prove
the sisters Norton alive; and upon this they appealed to the Court.
I'hamberlain and Podrigo, Justices. He who would prove them dead:
for if it Is shown that they were once alive, it will be presumed that they
are alive if the contrary should not be proved. ("Si inontre que unfoi
vie, ils seront intend in vie, si le contrarie ne soit prove. "i"
46 THE COURT AND THE JURY (Cll. 1
shewn to be living, the proof of the fact lies on the party who asserts
the death ; for that the presumption is, that the party continues alive
until the contrary be shewn.
However, as the defendants swore that they had been misled by an
opinion taken, which stated that the issue on these pleadings lay on the
plaintiffs ; and as circumstances were deposed to, which went to prove
the death of the principal as stated;
The Court let the defendants in to a new trial on payment of costs.
Rule absolute.
THE KING v. TURNER.
(Court of King's Bench, 1816. 5 Maule & S. 206.)
Certiorari to review a conviction of the defendant by two justices
on a charge of having certain game in his possession, not being a per-
son qualified, etc. After setting out the information, the order of the
justices recited: "Whereupon the defendant being summoned on the
10th of February, in the 56th year aforesaid, &c, appeareth before us,
the said J. M. and G. M., one other of the justices, &c, and having
heard, &c, pleads not guilty. Neverthless, on the said 10th day of
February, at &c, two credible witnesses, to wit, T. T. and W. S. upon
their oath, affirm, in the presence of the said J. Turner, that within
three months next before the said information, to wit, on the said 5th
of February, in the 56th year aforesaid, at &c, the said J. Turner
being a carrier, did have in his custody and possession, in his waggon,
at the parish of Send and Ripley, in the county aforesaid, sixteen
pheasants and five hares, the same not being sent up or placed in the
hands of said J. Turner, by any person or persons qualified to kill
game, contrary to the form of the statute, &c. Whereupon the said
J. Turner, being asked what he hath to say or offer in his defense,
produceth one witness, to wit, G. T., who, being duly sworn, deposeth,
in the presence of the said J. Turner, and also of the said W. Taylor,
that on the said 5th day of February, at the parish of The Holy Trin-
ity, in Guildford aforesaid, he was present at, and did aid and as-
sist in the packing and loading the said waggon of the said J. Turner ;
and that at the day and parish last aforesaid, when the said waggon
of the said J. Turner left the warehouse of the said J. Turner, in the
said parish last aforesaid, there was not in the custody and possession
of the said J. Turner, in his said waggon, in the parish last aforesaid,
any such quantity of game as is above laid to his charge, or any game
whatever; and forasmuch as upon hearing the matters, &c, it appears
to us, the said justices, that the said J. Turner is guilty of the prem-
ises, it is therefore adjudged by us the said justices, upon the testi-
mony of the said T. T. and W. S., that the said J. Turner, on the said
5th day of February, at the parish of Send and Ripley aforesaid,
within three months next before the said information was made before
Sec. 1) THE BURDEN OP PROOF ^
me the said J. MX by the said W. T. as aforesaid, unlawfully had in
his custody and possession, sixteen pheasants and five hares, contrary
to the form of the statute, &c." * * *
Secondly, it was objected, that it does not appear that any evidence
was given in support of the information, negativing the qualifications
mentioned in the statute, which is necessary, in order to found the
jurisdiction of the justices ; for if the party be qualified in any one
respect, the justices have no jurisdiction. And herein a proceeding be-
fore a justice differs from an action. It seems, therefore, that prima
facie evidence, at least, ought to be required; though it must be ad-
mitted, that in Rex v. Stone, 1 East, 639, the Court were divided in
opinion upon this point. 42
Lord EllEnborough, C. J. The question is, upon whom the onus
probandi lies; whether it lies upon the person who affirms a qualifica-
tion, to prove the affirmative, or upon the informer, who denies any
qualification to prove the negative. There are, I think, about ten dif-
ferent heads of qualification enumerated in the statute 22 & 23 Car.
2, c. 25, § 3, to which the proof may be applied ; and, according to the
argument of to-day, every person who lays an information of this
sort is bound to give satisfactory evidence before the magistrates to
negative the defendant's qualification upon each of those several
heads. The argument really comes to this, that there would be a moral
impossibility of ever convicting upon such an information. If the
informer should establish the negative of any part of these different
qualifications, that would be insufficient, because it would be said,
non liquet, but that the defendant may be qualified under the other.
And does not, then, common sense shew, that the burden of proof
ought to be cast on the person, who, by establishing any one of the
qualifications, will be well defended? Is not the Statute of Anne in
effect a prohibition on every person to kill game, unless he brings
himself within some one of the qualifications allowed by law; the
proof of which is easy on the one side, but almost impossible on the
. other ? I remember the decision of Rex v. Stone ; and the arguments
of the learned Judges, who held the necessity of giving negative proof,
were undoubtedly urged with great force ; but I felt at the time, that
if they were right, it would, in most cases, be impossible to convict at
all. But in Spieres v. Parker, 1 T. R. 144, I find Lord Mansfield lay-
ing down the rule, that in actions upon the game laws, (and I see no
good reason why the rule should not be applied to informations as well
as actions) the plaintiff must negative the exceptions in the enacting
clause, though he throw the burden of proof on the other side. The
same was said by Heath, J., in Jclfs v. Ballard, 1 B. & P. 468; and
such I believe has been the prevailing opinion of the profession, and
the practice. I am, therefore, of opinion, that this conviction, which
specifies negatively in the information the several qualifications nien-
«2 Statement condensed and opinion of Bayley, J., omitted.
48 THE COURT AND THE JURY (Ch. 1
tioned in the statute, is sufficient, without going on to negative, by the
evidence, those qualifications.
Holroyd, J. I also am of the same opinion. It is a general rule,
that the affirmative is to be proved, and not the negative, of any fact
which is stated, unless under peculiar circumstances, where the gen-
eral rule does not apply. Therefore it must be shewn, that this is a
case which ought to form an exception to the general rule. Now all
the qualifications mentioned in the statute, are peculiarly within the
knowledge of the party qualified. If he be entitled to any such estate,
as the statute requires, he may prove it by his title deeds, or by re-
ceipt of the rents and profits : or if he is son and heir apparent, or
servant to any lord or lady of a manor appointed to kill game, it will
be a defence. All these qualifications are peculiarly within the knowl-
edge of the party himself, whereas the prosecutor has, probably, no
means whatever of proving a disqualification. If this be so, instead
of saying that the general rule of law ought not to apply to this case,
it seems to be the very case to which the rule ought peculiarly to ap-
ply. The other objections do not appear to me to be well founded;
and, therefore, I think this conviction ought to be affirmed.
Conviction affirmed. 43
THE KING v. INHABITANTS OF TWYNING.
(Court of King's Bench, 1819. 2 Barn. & Aid. 3S6.)
Two justices removed Mary Burns, the wife of Francis Burns, an
Irishman, then absent, and James and Ann her children, from the
township of Manchester to the parish of Twyning in the county of
Gloucester. The sessions, on appeal, confirmed the order, subject to
the opinion of the Court of King's Bench, upon the following case :
About seven years ago, the pauper Mary Burns intermarried with
one Richard Winter, with whom she lived a few months, when he
enlisted for a soldier, went abroad on foreign service, and has never-
been heard of since. In a little more than twelve months after his de-
parture, the pauper Mary, being then settled in Twyning, intermarried
with the said Francis Burns, with whom she has cohabited from the
time of such marriage to the present period; the children, mentioned
in the order of removal, were born during such cohabitation, and are
the children of the said Francis Burns. One of them was born in the
parish of Tewksbury, and the other in a parish in the city of Worces-
ter. On the part of the appellants it was contended, that the respond-
ents ought further to have proved the death of Richard Winter, prior
to the marriage with Francis Burns, and that in the absence of such
proof, the presumption of law was, that he was then alive, and that
<3 For comments on this class of cases, see Doe v. Whitehead, S Adol. &
Ellis. 571 (1838)-; Lisbon v. Lyman, 49 N. H. 553 (1S70).
Sec. 1) THE BURDEN OF PROOF 4 ( .i
consequently the children must be considered as illegitimate, and set-
tled where born, and that as to them, the order ought to be set aside.
The sessions were of opinion, that there was sufficient evidence of
the non-access of Richard Winter, and that the burden of proof lay
upon the appellants, to shew that he was alive at the time of the sec-
ond marriage, and confirmed the order.
Bayley, J. 44 * * * The facts of this case are, that there is a
marriage of the pauper with Francis Burns, which is prima facie valid,
but the year before that took place, she was the wife of Richard Win-
ter, and if he was alive at the time of the second marriage, it was il-
legal, and she was guilty of bigamy. But are we to presume that Win-
ter was then alive? If the pauper had been indicted for bigamy, it
would clearly not be sufficient. In that case Winter must have been
proved to have been alive at the time of the second marriage. It is
contended that his death ought to have been proved, but the answer
is, that the presumption of law is, that he was not alive when the con-
sequence of his being so is, that another person has committed a crimi-
nal act. I think, therefore, that the sessions decided right in holding
the second marriage to have been valid, unless proof had been given
that the first husband was alive at the time.
Best, J. I am also of opinion that the sessions have decided correct-
ly in this case. They had a right to presume that the pauper had not
committed a crime, and if so, the second marriage would be valid, un-
less proof had been given of the first husband being then alive. The
cases cited are very distinguishable, they only decide that seven years
after a person has been last heard of, you are in all cases to presume
his death. But they do not shew, that where conflicting presumptions
exist, you may not presume the death at an earlier period. Now,
those conflicting presumptions exist here, and I think the sessions
were warranted in presuming the death of the first husband, on the
ground that they would not presume that the woman had committed
bigamy. I think, therefore, that their order was right.
Order of sessions confirmed. 45
THE KING v. INHABITANTS OF HARBORNE.
(Court of King's Bench, 1S35. 2 Adol. & El. 540.)
On appeal against an order for the removal of Ann Smith, wife of
Henry Smith, from the parish of Harborne, in the county of Stafford,
to the parish of East Haddon, in the county of Northampton ; the
sessions quashed the order, subject to the opinion of this Court upon
the following case:
** Part of opinion omitted.
*b lor the presumption in favor of the validity of the second marriage
Brigham v. Ilu-hson, 173 Cal. 448, 160 Pac. 548 (1916), ami comments in ::>>
Harvard Law Review, 500.
illNT.EV. 4
50 THE COURT AND THE JURY (Ch. 1
The respondents proved that Henry Smith, being settled in the par-
ish of East Haddon, married the pauper on the 11th of April, 1831,
and had since deserted her. The appellants then proved that the said
Henry Smith had married one Elizabeth Meadows on the 4th of Oc-
tober, 1821 ; and, in order to shew that she was alive at the time he
married the pauper, and consequently that such second marriage was
invalid, they called the father of Elizabeth Meadows, who proved that
his daughter and Henry Smith continued to live together till 1825,
when he left her, and she went into the Northampton hospital. The
witness had since received several letters from her dated from Van
Diemen's Land, and he produced a letter dated Hobart Town, 17th
of March, 1831, which he proved to be in her handwriting. The ses-
sions received the letter in evidence, and quashed the order. The
question for the opinion of this Court was, whether, upon the above
evidence, the sessions were justified in presuming that Smith's first
wife was alive at the time of his marriage with the pauper.
Lord Denman, C. J. 46 The question is, whether the sessions were
justified in coming to the conclusion that a party was alive on the 11th
of April, who was alive on the 17th of March preceding? If she was
alive, there was no marriage, on the 11th of April; and if there was
no marriage, there was no settlement in East Haddon. It seems to
me that the evidence was proper, and the conclusion proper. There
was no contrary evidence. The only circumstance raising any doubt in
my mind, is the doctrine laid down by Bayley, J., in Rex v. Twyning,
2 B. & Aid. 388. But, in that case, the sessions found that the party
was dead ; and this Court merely decided, that the case raised no pre-
sumption upon which the finding of the sessions could be disturbed.
The two learned Judges, Bayley, J., and Best, J., certainly appear to
have decided the case upon more general grounds : the principle, how-
ever, upon which they seem to have proceeded, was not necessary to
that decision. I must take this opportunity of saying, that nothing can
be more absurd than the notion, that there is to be any rigid presump-
tion of law on such questions of fact, without reference to accompany-
ing circumstances, such, for instance, as the age or health of the par-
ty. There can be no such strict presumption of law. In Doe dem.
Knight v. Xepean, 5 B. & Ad. 86, the question arose much as in Rex
v. Twyning, 2 B. & Aid. 386. The claimant was not barred, if the
party was presumed not dead till the expiration of the seven years
from the last intelligence. The learned Judge who tried the cause held
that there was a legal presumption of life until that time, and directed
a verdict for the plaintiff, because, if there was a legal presumption,
there was nothing to be submitted to the jury. But this Court held,
that no legal presumption existed, and set the verdict aside. That is
quite consistent with the view which we take in the present case;
and Rex v. Twyning, 2 B. & Aid. 386, may be explained in the same
«« Opinion of Littlodale, J., omitted.
Sec. 1) TTIE BURDEN OF FROOF 51
way. I am aware that, in this latter case, Bayley, J., founds his de-
cision on the ground of contrary presumptions : but I think that the
only questions in such cases are, what evidence is admissible, and
what inference may fairly be drawn from it. It may be said, suppose
a party were shewn to be alive within a few hours of the second mar-
riage, is there no presumption then? The presumption of innocence
cannot shut out such a presumption as that supposed. I think no one,
under such circumstances, could presume that the party was not alive
at the actual time of the second marriage.
\\ ilxiams, J. I am entirely of the same opinion. The question
which the case states for us is, whether the sessions were justified in
presuming as they did. It is argued, in opposition to the order of ses-
sions, that the question is, upon whom does the onus proband! He?
and that, after the settlement of Smith, and his marriage, have been
proved by the respondents, the onus is shifted upon the appellants,
who are then to shew that Smith, at the time of that marriage, was a
married man. But still this question remains : is there any particular
rule established for deciding the fact of the life of a party on princi-
ples unlike those by which other facts are decided? When we are
told that the life must be proved by express evidence, I am at a loss
to understand what is meant. There was express evidence: the
party was alive within a month. To be sure, death might have inter-
vened: that is possibility against probability; for it is a question of
degree. If it be necessary to shew an impossibility that the fact
should be otherwise, what proof can be given, short of producing the
person? If the evidence given was not enough would it have been
enough to shew that the party was alive three hours before the time?
The sessions seem to me to have acted quite rightly. In Rex v. Twyn-
ing, 2 B. & Aid. 386, the question was, whether the sessions were jus-
tified in acting upon the presumption there ; and I have no doubt that
this Court was right in holding that there was evidence upon which
the presumption might be founded. Here, also, the sessions founded
their opinion upon a presumption which they were entitled to make.
Order of sessions affirmed.
In re LEWES' TRUST.
(Court of Appeal in Chancery, 1S71. L. R. 6 Ch. App. Cas. 35G.)
John Lewes, by his will, gave pecuniary legacies to his son Thomas
Lewes, and gave the residue of his estate to Lieut. Colonel J. Lewes.
John Lewes died on the 20th of February, 1S60. Thomas Lewes left
England in 1858, and went to Australia, whence he wrote a letter,
dated the 3d of January, 1S59, since which nothing had been heard
of him. The legacies were paid into Court, and the residuary legatee
petitioned for payment on the ground that, in the absence of proof
that the legatee survived the testator, the legacy must be taken to
52 THE COURT AND THE JURY (Ch. 1
have lapsed. The Vice Chancellor Malins made an order for payment
accordingly, considering himself bound by In re Phene's Trusts, Law
Rep. 5 Ch. 139. The case is reported Id. 11 Eq. 236, where the facts
are more fully stated.
The next of kin of Thomas Lewes, one of whom had been appointed
to represent him, appealed.
Sir W. M. James, L. J. This case is entirely covered by In re
Phene's Trusts. The Vice Chancellor says that he is bound by the
rule in that case, that a legatee must establish his title by affirmative
proof. The rule of law laid down in Doe v. Nepean [5 Barn. & Ad.
86, and 2 Mees. & W. 894] 47 is, that where any person has to prove the
fact of death, he proves it by presumption of law from the lapse of
time, but when he has to prove the time of death, he must prove it af-
firmatively for there is no presumption that the death took place at any
time in that seven years. If anything is to be presumed it would be, ac-
cording to Doe v. Nepean, that the death took place on the first day of
the seven years. Death is presumed from the person not being heard
of for seven years, and whoever has to make out the case of death at
any particular time must prove it by affirmative evidence, and those
who claim under a person who is said to have survived a particular
period must prove the fact. Here the onus of proof is on those who
claim under the legatee, and they have not succeeded. It is impossible
to suggest any principle of common law or common sense by which it
can make any difference whether the residuary legatee or the next of
kin are the claimants.
Sir G. Meeush, L. J. I am of the same opinion. If at the end of
seven years a person has not been heard of, the presumption is that
he is dead, but there is no presumption as to when, during the seven
years he died. The person upon whom it rests to prove the affirma-
tive, either that the legatee was alive or that he was dead at a particu-
lar period, must establish the proposition by distinct evidence, and not
by showing merely that he was alive at the beginning of the period.
I do not think it signifies whether the petition is presented by the
residuary legatee or by the representatives of the particular legatee.
It would be absurd to make the determination of the question depend
upon that, as the executor might then have to keep the legacy forever.
The question is upon whom the onus really lies. The representatives
of the legatee have to make out that the legatee was alive at the death
47 In Doe v. Jesson, G East, 80 (1805), Lord Ellenborough directed a jury
that there was fair ground to presume death after seven years absence, un
heard of, etc. In Doe v. Nepean, 5 Barn. & Ad. 86 (1833), the matter was
treated in much the same way, viz., that such facts furnished evidence from
which a jury might fairly find that death had taken place. When the case
reached the Exchequer Chamber, 2 Mees. & W. 894 (1837), the facts were
treated as raising a legal presumption. That the rule does not apply where
tin absenl person would not naturally communicate with his former friends
or family, Watson v. England, 14 Simmons, 28 (1S44). But see Mutual Ben.
Life Ins. Co. v. Martin, 108 Ky. 11, 55 S. W. 694 (1900), where the Insured
was a fugitive from justice.
Scv. 1) TTIE BURDEN OP PROOF 53
of the testator, for the residuary legatee can say that he is entitled to
everything except what is proved not to come to him. The rule is
now clearly established on a right basis, and the appeal must be dis-
missed with costs. 48
DUKE OF NEWCASTLE v. HUNDRED OF BROXTOWE.
(Court of King's Bench, 1832. 4 Barn. & Adol. 273.)
This was an action on the statute 7 & 8 G. 4, c. 31, to recover dam-
ages for felonious demolition in part of Nottingham Castle, by persons
unlawfully, riotously, and tumultuously assembled. Plea, the general
issue. At the trial before Vaughan, B., at the Summer assizes for Not-
tingham, two questions were made : first, whether Nottingham Castle
was within the hundred of Broxtowe; and, secondly, assuming it to
be so, on what principle the compensation given by the statute was
to be calculated.
Upon the first point, the plaintiff gave in evidence letters-patent of
the 8 Jac. 1. whereby that king granted to E. Ferrers and F. Phelps,
inter alia, the dovehouse close, the brewhouse, and the site, ground,
and foundation of the castle mills, described as theretofore being part
of the possessions of the castle of Nottingham ; secondly, a grant of
the 18th of February, 20 Jac. 1, whereby that king granted to Francis
Earl of Rutland, inter alia, the castle of Nottingham, and the site,
circuit, ambit, and precinct thereof, and the close called Dove-cott
Close in Nottingham Park, and a meadow called King's Meadow, ly-
ing in or near the liberties or precincts of the town of Nottingham ;
all which were described in the grant as parcel of the lands and pos-
sessions belonging to the king in right of his crown of England. The
plaintiff then put in a series of documents, among which were the
following: — Entries in a book of orders made at the quarter sessions
in April and October 1654, and January and April 1655: in these
it was stated, that the castle and brewhouse were in the hundred of
Broxtowe, and the inhabitants of the hundred were thereby ordered
to maintain certain poor people living under the castle and at the
brewhouse, who had been previously relieved out of the general coun-
48 For a collection of American cases on this point, see Butler v. Order of
Foresters, 2G L. R. A. (N. S.) 293 (1909), annotated; White v. Brotherhood
of Locomotive Firemen, 165 Wis. 418, 162 N. W. 441 (1917).
That there is no presumption that the absent person died unmarried or
without issue, see Emerson, v. White, 29 N. H. 482 (1S54), where a number of
the cases are reviewed.
For a peculiar treatment of a presumption against suicide in an action on
an accident policy, so as to place the burden on the insurer of establishing
the negative, that death was not accidental, see Reynolds v. Marvlaud Cas-
ualty Co., 274 .Mo. 83, 201 S. W. 1128 (1918). Compare the dissenting opinion
of Faris, J., in that case.
See McGowin v. Menken, 223 N. Y. 509, 119 N. E. 877 (1918), for the bur-
den of proof of survivorship in an action on a life insurance policy, where
the insured and the primary beneficiary perished in the same accident
54 THE COURT AND THE JURY (Ch. 1
ty stock. The first two orders gave as a reason for their having been
so relieved, that the brewhouse and yard were not formerly known to
be of any particular parish, but that they were then known to be in the
wapentake of Broxtowe, and chargeable therewith to the relief of their
own poor. Another order of the 1st of January 1660 was also given
in evidence, to shew that on occasion of a robbery of A. R. in Notting-
ham Park, the justices, with the consent of the grand jury, &c. to save
the expense of an action, ordered the money to be levied on the hun-
dred of Broxtowe, and paid to the person robbed. It was contended
that these orders were not admissible as judgments of the Court of
quarter sessions, because the justices had no authority to make them;
nor as evidence of reputation, because it was not proved that the jus-
tices resided in the county, or had any peculiar knowledge on the sub-
ject-matter; and, further, because it appeared from the orders them-
selves, that at the time when they are made, it had been matter of dis-
pute whether the brewhouse yard was within the hundred or not. The
learned Judge thought they were admissible as evidence of reputation.
The learned Judge directed the jury, first, to find for the plaintiff if
they thought upon the evidence that the castle was locally situate with-
in the hundred of Broxtowe ; and he recapitulated all the evidence,
and observed, upon the charter of Hen. 6, that leaving the castle in
the county of Nottingham, when the town was made a county of it-
self, did not shew in what hundred the castle originally was, and that
the orders of sessions and the land-tax duplicates were entitled to great
weight, as shewing that, in point of reputation, the castle had, for
two centuries, been considered part of the hundred ; and he added
that, when things for a great length of time had gone in a certain
course, it was reasonable to infer that they had always done so, un-
less the evidence to the contrary were certain. The question of dam-
ages he left generally to the jury. .They found for the plaintiff, dam-
ages £21,000. In the early part of the term,
Wilde, Serjt., moved for a new trial. 49
Parke, J., now delivered the judgment of the Court.
In this case, my Brothers Taunton and Patteson and myself, before
whom the motion for a new trial was made (my Lord Chief Justice
not having at that time taken his seat on the Bench), are of opinion
that no rule should be granted.
The first objection was, that certain orders of sessions, in number
five, and made between the years 1654 and 1660, each inclusive, were
improperly received in evidence.
These documents were admitted, not as orders upon matters over
which the magistrates had jurisdiction, but as evidence of reputation;
and in that point of view we are of opinion that they were admissible.
Four of them contain an express statement, the fifth an implied one,
that the castle (or the brewhouse, or the park of Nottingham which
4 9 Statement condensed and part of opinion omitted.
SCC. 1) THE BURDEN OF PROOF 55
belong to it) is within the wapentake or hundred of Broxtowe: the
statement is made by the justices of the peace, assembled in sessions,
who, though they were not proved to be resiants in the county or
hundred, must, from the nature and character of their offices alone,
be presumed to have sufficient acquaintance with the subject to which
their declarations relate; and the objection cannot prevail, that they
were made after a controversy upon that subject had arisen, because
there appears to have been no dispute upon the particular question
whether the castle and its precincts were in the hundred of Broxtowe
or not. These statements, therefore, fall within the established rule
as to the admission of evidence of reputation.
The second objection was, that the learned Judge did not present
the question to the jury in the manner in which he ought to have done ;
not that he misinstructed them in point of law, but that, in observing
upon the facts, he ascribed too great weight to the evidence of mod-
ern usage and reputation, and particularly to the above-mentioned
orders, and too little to the ancient documents produced on the part of
the defendants. But we must receive with very great caution objec-
tions of this nature ; for if we were to yield to them on all occasions
in which we might disagree with some observation made on particu-
lar parts of the evidence, upon which it is the province of the jury to
decide, we should seldom have any case which involved many facts
brought to a termination. It is only in those cases in which we are
satisfied that the jury have been led to a wrong conclusion that we
ought to interfere; and we cannot possibly say that they have been
induced to form a wrong conclusion in this. Without meaning to
say that the learned Judge was wrong in attaching great weight to
these particular documents, we all agree that the general scope of his
observations upon the evidence was perfectly correct. We understood
him to have said, in substance, that as by the usage and reputation for
nearly two centuries, the castle and its precincts had been considered
as being within the hundred, it ought to be inferred that they were
legally so, unless the ancient documents clearly and satisfactorily
proving that they were not. This is only an example of the princi-
ple which is applicable to all rights of way and common, to tolls, to
moduses, in short, to all prescriptive and ancient rights, customs, ex-
emptions, and obligations : in all which long usage should always be
referred, if possible, to a legal origin; and it is only by the constant
practical application of this principle that much valuable property and
many important rights and privileges are preserved.
In adapting this principle to the present case, there being strong
and uniform evidence of modern usage since the middle of the seven-
teenth century, the only question is, whether the older documents
clearly show that this usage is wrong, and that the castle and its pre-
cincts could not have been within the hundred at the time of the first
institution of that division? Now these documents prove, that from
an early date, viz., at the time of Domesday, there was a borough of
56 THE COURT AND THE JURY (Ch. 1
Nottingham: that the borough in later periods had a jury distinct
from that of the hundred ; one of them in the 3 Ed. 3 tends to shew
that the castle was within the jurisdiction of that jury; and the char-
ter of Hen. 6 may be considered as demonstrating, that at the time of
the erection of the borough into a county of itself the castle did, for
some purposes at least, form a part of the borough, for the borough is
made a county with the exception of the castle. But admitting this,
what reason is there, why the castle, though being in the borough for
some purposes, might not also be a part of the hundred? for as a
borough may include a part of two counties (the city of Oxford and
borough of Tamworth for example), why may it not comprise part of
a hundred, or part of two or more hundreds? and we may not also
reconcile the exclusion of the castle from the new county, on the sup-
position that it had originally belonged to the hundred? We do not
think that any of these documents are so clearly inconsistent with
the long usage and reputation in modern times as to prevent a jury
from drawing the usual inference, that what has existed so long has
■ existed from the earliest period necessary to give it validity. * * *
Rule refused. 50
DELANO v. BARTLETT.
(Supreme Judicial Court of Massachusetts, 1850. 6 Cush. 364.)
Assumpsit on a promissory note. The defense relied on was a want
of consideration. Verdict for defendant, and the plaintiff alleged ex-
ceptions. The facts are sufficiently stated in the opinion. 51
Fletcher, J. The plaintiff having produced the note on which
this action was brought, and the signatures being admitted, rested her
case on that evidence. The defence relied on at the trial was a want of
consideration. To maintain this defence, the defendants offered evi-
dence, that the sum received by Bartlett of the plaintiff, and for which
the note was given, was Bartlett's own money, and was paid to him by
the plaintiff, supposing him entitled to it ; and that the note was taken
for it, on the understanding and agreement, that if on the settlement
of the affairs between Bartlett and the plaintiff's , intestate, it should
appear, that Bartlett was not entitled to the money, the plaintiff might
call for it on this note ; and that in point of fact the whole sum for
which the note was given belonged to Bartlett, and was less than he
was entitled to, and that no part. of it belonged to the plaintiff's in-
60 See the development of such a policy into a rule requiring a verdict in
accordance with certain kinds of proof unless the contrary has been estab-
lished. Bryant v. Foot, L. R. 2 Q. B. 161 (1867).
So a rule of policy seems to require that one disputing the legitimacy of a
i son born of a married woman should establish the negative of the prop"
Bition beyond a reasonable doubt. Bosvile v. Attorney General, L. R. 12 P
D. 177 (1887).
B * Statement condensed.
Sec. 1) Tin: BURDEN OF I'UOOK 57
testate. All the evidence was submitted to the jury, to be considered
and weighed by them, in settling the questions of fact involved in the
defence.
The plaintiff, relying on the note, which, upon its face, imported a
consideration, and thus making out a prima facie case, requested the
court to instruct the jury, that the burden of proof was on the de-
fendants, to establish the want of consideration. But the defendants
having produced evidence tending to disprove or overcome this prima
facie case, on the part of the plaintiff, and the proof on both sides
being applied to the affirmative or negative of the same issue, the
plaintiff being the party whose case required proof of a consideration,
the presiding judge instructed the jury, that the burden of proof was
throughout on the plaintiff, to satisfy them, upon the whole evidence
in the case, of the fact of a consideration for the note. To this ruling
and instruction the plaintiff's counsel excepted.
The rule in regard to the burden of proof is laid down with great
distinctness in the case of Powers v. Russell, 13 Pick. 69, 76. The
chief justice says: J^It was stated here, that the plaintiff had made *? /
out a prima facie case, and therefore that the burden of proof was U^^^ldje^
shifted and placed on the defendant. In a certain sense this is true.
When the party, having the burden of proof, establishes a prima facie
case, and no proof to the contrary is offered, he will prevail. There-
fore, the other party, if he would avoid the effect of the prima facie
case, must produce evidence of equal or greater weight, to balance or
control it, or he will fail. Still, the proof upon both sides applies
to the affirmative or negative of one and the same issue or proposi-
tion of fact, and the party, whose case requires the proof of that
fact, has all along the burden of proof. It does not shift, though
the weight in either scale may at times preponderate. But when the_
party having the burden of proof gives competent and prima facie evi-
dence of a fact, and the adverse party, instead of producing proof
which would go to negative the same proposition of fact, proposes to
show another and a distinct proposition, which avoids the effect of
it, then the burden of proof shifts and rests upon the party propos-
ing to show the latter factT^j
Apply this rule to the present case, and it is quite clear, that the in-
struction to the jury was entirely correct. It was incumbent on the
plaintiff to prove a consideration for the note, which was the founda-
tion of the suit. That was a part of her case, and the burden was on
her to establish that fact. But the note itself was prima facie evi-
dence of a consideration; so that, by producing the note, the plaintiff
made a prima facie case. That evidence, if not rebutted, would be
sufficient to maintain the plaintiff's case. But it was competent for the
defendants to rebut this evidence on the part of the plaintiff, and thus
to avoid the prima facie case made by her. Accordingly the defend-
ants did offer evidence to rebut the evidence on the part of the plain-
tiff, and to show that there was no consideration. The evidence on both
58 THE COURT AND THE JURY (Ch. 1
sides applied to the affirmative or negative of the same issue or propo-
sition of fact, a consideration for the note, and the plaintiff's case re-
quiring her to establish that fact, the burden of proof was all along on
her to satisfy the jury, upon the whole evidence in the case, of the
fact of a consideration for the note. The rule, as laid down in the
case of Powers v. Russell, has been fully recognized in the cases of
Parish v. Stone, 14 Pick. 198, 201, 25 Am. Dec. 378; Davis v. Jenney,
1 Mete. 221, 224; Sperry v. Wilcox, 1 Mete. 267; Commonwealth v.
Dana, 2 Mete. 329, 340; Brown v. King, 5 Mete. 173, 180; Tourtellot
v. Rosebrook, 11 Mete. 460, 463. In Jennison v. Stafford, 1 Cush. 168,
48 Am. Dec. 594, the defence was not an original want of consid-
eration, but a failure of consideration ; that is, to avoid the prima facie
case of the plaintiff made by producing the note, the defendant pro-
posed to show another and distinct proposition. The court no doubt
correctly ruled, that the burden of proof was on the defendant, to
make out this distinct proposition to avoid the prima facie case of the
plaintiff. There is a sentence in this opinion, which may be misunder-
stood. The judge, in delivering the opinion, says: "Such a note is
presumed to be founded on a valid and sufficient consideration, and
the burden of proof is on the maker to establish the contrary." This
must be understood to mean, that the burden of proof is on the maker
to rebut the prima facie case made by producing the note, otherwise
the prima facie evidence will be conclusive.
Exceptions overruled. 52
BROWN v. KENDALL.
(Supreme Judicial Court of Massachusetts, 1850. 6 Cush. 292.)
This was an action of trespass for assault and battery, originally
commenced against George K. Kendall, the defendant, who died pend-
ing the suit, and his executrix was summoned in.
It appeared in evidence, on the trial, which was before Wells, C. J.,
in the court of common pleas, that two dogs, belonging to the plain-
tiff and the defendant, respectively, were fighting in the presence of
their masters ; that the defendant took a stick about four feet long, and
commenced beating the dogs in order to separate them; that the
plaintiff was looking on, at the distance of about a rod, and that he
advanced a step or two towards the dogs. In their struggle, the dogs
approached the place where the plaintiff was standing. The defend-
f>2 In a number of the states want of consideration for a promissory note
has become an affirmative defense to be pleaded and established by the de-
fendant. Pastene v. Pardini, 135 Cal. 431, 67 Pac. 681 (1902). For certain
interesting problems on the burden of proof on the question of holder for
value where the defense of fraud is made, see Harvey v. Towers, 6 Exch.
650 (1851); Smith v. P.raine, 10 Q. B. (N. S.) 244 (1S51) ; Hamilton v.
Marks, 63 Mo. 167 (1876); Leavitt v. Thurston, 38 Utah, 351, 113 Fie. 77
(1911), under N. I. L.
SeC. 1) TOE BURDEN OF PROOF 59
ant retreated backwards from before the dogs, striking them as he
retreated; and as he approached the plaintiff, with his back towards
him, in raising his stick over his shoulder, in order to strike the dogs,
he accidentally hit the plaintiff in the eye, inflicting upon him a severe
injury.
Whether it was necessary or proper for the defendant to inter-
fere in the fight between the dogs ; whether the interference, if called
for, was in a proper manner, and what degree of care was exercised
by each party on the occasion ; were the subject of controversy be-
tween the parties, upon all the evidence in the case, of which the fore-
going is an outline.
The defendant requested the judge to instruct the jury, that "if
both the plaintiff and defendant at the time of the blow were using
ordinary care, or if at that time the defendant was using ordinary
care and the plaintiff was not, or if at that time both plaintiff and
defendant were not using ordinary care, then the plaintiff could not
recover."
The defendant further requested the judge to instruct the jury, that,
"under the circumstances, if the plaintiff was using ordinary care and
the defendant was not, the plaintiff could not recover, and that the bur-
den of proof on all these propositions was on the plaintiff."
The judge declined to give the instructions, as above requested, but
left the case to the jury under the following instructions:
"If the defendant, in beating the dogs, was doing a necessary act,
or one which it was his duty under the circumstances of the case to
do, and was doing it in a proper way ; then he was not responsible in
this action, provided he was using ordinary care at the time of the
blow. If it was not a necessary act; if he was not in duty bound to
attempt to part the dogs, but might with propriety interfere or not as
he chose; the defendant was responsible for the consequences of
the blow, unless it appeared that he was in the exercise of extraor-
dinary care, so that the accident was inevitable, using the word 'in-
evitable' not in a strict but a popular sense."
"If, however, the plaintiff, when he met with the injury, was not
in the exercise of ordinary care, he cannot recover, and this rule ap-
plies, whether the interference of the defendant in the fight of the
dogs was necessary or not. If the jury believe, that it was the duty
of the defendant to interfere, then the burden of proving negligence
on the part of the defendant, and ordinary care on the part of the
plaintiff, is on the plaintiff. If the jury believe, that the act of inter-
ference in the fight was unnecessary, then the burden of proving
extraordinary care on the part of the defendant, or want of ordinary
care on the part of the plaintiff, is on defendant."
The jury under these instructions returned a verdict for the plaintiff;
whereupon the defendant alleged exceptions. 68
6 3 Statement condensed and part of opinion omitted.
nO THE COURT AND THE JURY (Ch. 1
Shaw, C. J. * * * The facts set forth in the bill of exceptions
preclude the supposition, that the blow, inflicted by the hand of the
defendant upon the person of the plaintiff, was intentional. The whole
case proceeds on the assumption, that the damage sustained by the
plaintiff, from the stick held by the defendant, was inadvertent and
unintentional; and the case involves the question how far, and under
what qualifications, the party by whose unconscious act the dam-
age was done is responsible for it. We use the term "unintentional"
rather than "involuntary," because in some of the cases, it is stated,
that the act of holding and using a weapon or instrument, the move-
ment of which is the immediate cause of hurt to another, is a volun-
tary act, although its particular effect in hitting and hurting another
is not within the purpose or intention of the party doing the act.
We think, as the result of all the authorities, the rule is correctly
stated by Mr. Greenleaf, that the plaintiff must come prepared with
evidence to show either that the intention was unlawful, or that the
defendant was in fault; for if the injury was unavoidable, and the
conduct of the defendant was free from blame, he will not be liable. 2
Greenl. Ev. §§ 85 to 92; Wakeman v. Robinson, 1 Bing. 213. If, in
the prosecution of a lawful act, a casualty purely accidental arises, no
action can be supported for an injury arising, therefrom. Davis v.
Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day's Ed.) and
notes ; Vincent v. Stinehour, 7 Verm. 69. In applying these rules to
the present case, we can perceive no reason why the instructions asked
for by the defendant ought not to have been given ; to this effect, that
if both plaintiff and defendant at the time of the blow were using ordi-
nary care, or if at that time the defendant was using ordinary care,
and the plaintiff was not, or if at that time, both the plaintiff and de-
fendant were not using ordinary care, then the plaintiff could not
recover. * * *
The court instructed the jury, that if it was not a necessary act,
and the defendant was not in duty bound to part the dogs, but might
with propriety interfere or not as he chose, the defendant was re-
sponsible for the consequences of the blow, unless it appeared that
he was in the exercise of extraordinary care, so that the accident was
inevitable, using the word not in a strict but a popular sense. This is
to be taken in connection with the charge afterwards given, that if the
jury believed, that the act of interference in the fight was unnecessary,
(that is, as before- explained, not a duty incumbent on the defendant,)
then the burden of proving extraordinary care on the part of the de-
fendant, or want of ordinary care on the part of plaintiff, was on the
defendant.
The court are of opinion that these directions were not conformable
to law. If the act of hitting the plaintiff wasomintentional, on the part
of the defendant, and done in the doing of a lawful act, then the de-
SeC. 1) THE BURDEN OF PROOF 01
fendant was not liable, unless it was done in the want of exercise of
due care, adapted to the exigency of the case, and therefore such want
of due care became part of the plaintiff's case, and the burden of proof
was on the plaintiff to establish it. 2 Greenl. Ev. § 85 ; B4 Powers
v. Russell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 11 Mete.
460."
Perhaps the learned judge, by the use of the term "extraordinary
care," in the above charge, explained as it is by the context, may
have intended nothing more than that increased degree of care and
diligence, which the exigency of particular circumstances might re-
quire, and which men of ordinary care and prudence would use under
like circumstances, to guard against danger. If such was the meaning
of this part of the charge, then it does not differ from our views, as
above explained. But we are of opinion, that the other part of the
charge, that the burden of proof was on the defendant, was incorrect.
Those facts which are essential to enable the plaintiff to recover, he
takes the burden of proving. The evidence may be offered by the
plaintiff or by the defendant ; the question of due care, or want of
care, may be essentially connected with the main facts, and arise from
the same proof ; but the effect of the rule, as to the burden of proof,
is this, that when the proof is all in, and before the jury, from whatever
side it comes, and whether directly proved, or inferred from circum-
stances, if it appears that the defendant was doing a lawful act, and
unintentionally hit and hurt the plaintiff, then unless it also appears
to the satisfaction of the jury, that the defendant is chargeable with
5* The passage in question is as follows: "And here also the plaintiff must
come prepared with evidence to show, either that the intention was unlawful,
or that the defendant was in fault ; for if the injury was unavoidable, and
the conduct of the defendant was free from blame, he will not be liable.
Thus, if one intend to do a lawful act, as to assist a drunken man, or pre-
vent him from going without help, and in so doing a hurt ensue, it is no bat-
tery. So, if a horse by a sudden fright runs away with his rider, not bein^
accustomed so to do, and runs against a man; or if a soldier, in discharging
his musket by lawful military command, unavoidably hurts another, — it is no
battery ; and in such cases the defence may be made under the general issue.
But, to make out a defence under this plea, it must be shown that the de-
fendant was free from any blame, and that the accident resulted entirely
from a superior agency. A defence which admits that the accident resulted
from an act of the defendant must be specially pleaded."
Compare Lord Ellenborough in Knapp v. Salsbury, 2 Campb. 500 (1810):
"These facts ought to have been pleaded specially. The only thing to be
tried under the plea of not guilty is, whether the defendant's cart struck the
plaintiff's chaise, and killed his horse. That it did is now admitted; and the
intention of defendant is immaterial. This is an action of trespass. If
what happened arose from inevitable accident, or from the negligence of the
plaintiff, to be sure the defendant is not liable; but as he in Cact did run
against the chaise and kill the horse, he committed the acts stated in the
declaration, and he ought to have put on the record any Justification he
may have had for doing so. The plea denying these acts must clearly be
found against him."
5 5 The case of Tourtellot V. Rosebrook, 11 Mete. 4G0 (1846), was an action
on the case for negligently setting out a fire.
62 THE COURT AND THE JURY (Ch. 1
some fault, negligence, carelessness, or want of prudence, the plaintiff
fails to sustain the burden of proof, and is not entitled to recover.
New trial ordered.
BIRD v. GREAT NORTHERN RY. CO.
(Court of the Exchequer, 1858. 28 Law J. Exch. 3.)
This was an action for an injury alleged to have arisen from negli-
gence by a railway company in the care and management of their
railway.
Plea — Not guilty.
At the trial, before Pollock, C. B., at the London Sittings after last
term, it appeared that the engine on the occasion in question had sud-
denly gone off the line, at a spot to which the process of "fishing" the
rails, which was being carried on above and below that spot, had not
been extended. It was admitted that this process was an improvement,
but it also appeared that it had been only of late introduced, and that
in a great portion of the railways it had not been carried out. There
was a great deal of evidence on both sides as to negligence ; the Lord
Chief Baron left the evidence to the jury, who found "for the defend-
ants, because there was not sufficient evidence as to the cause of the
accident."
Edwin James now moved for a new trial, on the ground of misdirec-
tion, in that the jury were not told that there was a prima facie case
of negligence; and that if it was not satisfactorily answered by the
defendants, the verdict should be for the plaintiff. The occurrence
of the injury itself is prima facie proof of negligence. Carpue v. The
London and Brighton Railway Company, 52 B. 747; s. c. 13 Law J.
Rep. (N. S.) I. B. 133.
[Pollock, C. B. That depends on the nature of the accident; as,
for instance, if it arises from a collision of different trains on the same
line, then it may be so. Here it was otherwise; the accident was of
a nature consistent with the absence of negligence. Watson, B., cited
Skinner v. London, Brighton & South Coast Railway Company, 5
Exch. Rep. 787; s. c. 19 Law J. Rep. (N. S.) Exch. 162.]
At all events, the plaintiff gave as much evidence of negligence as a
passenger possibly could, who necessarily must be unable to ascertain
the exact cause of an accident; and the railway being entirely under
the control of the company's servants, the onus probandi was then
upon the defendants ; so that if they failed satisfactorily to shew that
there was no negligence, the plaintiff was entitled to the verdict.
[Pollock, C. B. It was for the plaintiff to prove negligence; the
defendants' undertaking was not to carry safely but to cany with
reasonable care. They are not, as carriers of goods, insurers. There-
fore, the burthen of proof was on the plaintiff.]
PER Curiam. The whole question was left to the jury, and the
Sec. 1) TlIE BURDEN OF PROOF 63
meaning of their finding was, that they could not find for the plaintiff ;
in effect, that he had not proved that the accident arose from negli-
gence. It is impossible to say that the accident itself, even if prima
facie proof of negligence, was conclusive proof of it. And if not,
then, as there was evidence on both sides, the question was for the
jury; and their finding was substantially a finding for the defendants,
on the ground that there was no negligence.
Rule refused. 68
MONTGOMERY & E. RY. CO. v. MALXETTE.
(Supreme Court of Alabama, 1890. 92 Ala. 209, 9 South. 363.)
This action was brought by the appellee, C. P. Mallette, against
the appellant railroad corporation, and sought to recover damages
for injuries alleged to have been sustained and suffered by the plain-
tiff on account of the negligence of the defendant's servants and em-
ployes. The complaint contained three counts. Each of them claimed
damages for injuries sustained by the plaintiff, while a passenger upon
the railroad of defendant, and resulting from the negligence of the
defendant, its servants or employes. The defendant pleaded the gen-
eral issue; and a judgment was rendered for the plaintiff, assessing
his damages at $4,000.
The following facts Were undisputed, as gathered from the bill of
exceptions : That the plaintiff purchased a ticket at Albany, Georgia,
took the train running from that point to Montgomery over the Cen-
tral Railroad of Georgia to Eufaula, and from thence over defendant's
road to Montgomery, plaintiff's destination; that while he was on
defendant's train, and while the train was in the act of backing to the
depot in Eufaula, the car in which plaintiff was riding turned
over, and the plaintiff was injured ; that the direct cause of the acci-
dent was, that while train was backing as described, the sleeper, which
was in the rear of the train, at a switch way, which it had to pass in
order to get to the depot, ran off the track, and threw the car, in which
plaintiff was riding, off the track, and it turned over.
There was testimony introduced by the defendant tending to show
that the switch and all of the fixtures thereabouts were in good order;
that the cars were all right, and that there was no known cause for
the accident. The proof showed that the train was backing very slowly
at the time the accident occurred.
In his general charge to the jury, which was in writing, the court
%mong other things, charged them as follows :
(1) "If you are reasonably satisfied from the evidence, that the
66 That where there was no special relation between the parties, a prima
facie showing of negligence did not impose on the defendant the burden of
establishing due care, see Tourtellot v. Rosebrook, 11 Mete. (Mass.) 4G0
(1846).
64 THE COURT AND THE JURY (Ch. 1
plaintiff in some point in Georgia received and paid for a ticket as a
passenger on the defendant's railroad to Montgomery, and was such
passenger on defendant's train, and while on the route to Montgom-
ery, the train of cars, or some of the cars thereof, ran off the track, and
plaintiff was injured thereby, then the plaintiff makes out a prima facie
case for recovery, and he is entitled to recover, unless the defendant
reasonably overcomes this prima facie right of recovery by the evidence
in the case."
(2) "In order to avoid the liability growing out of a prima facie
case made out by plaintiff, the defendant must reasonably satisfy the
jury that it exercised that degree of care which the law requires of it
in order to avoid and prevent the happening of accidents."
(3) "The law requires the highest degree of care and diligence and
skill by those engaged in the carriage of passengers by railroads,
known to careful, diligent and skillful persons engaged in such busi-
ness."
(4) "If you find from the evidence that plaintiff, under the rule
given, has made out a prima facie case, then defendant, in order to
avoid liability, must reasonably satisfy the jury that it used that de-
gree of care, diligence and skill."
There was judgment for the plaintiff, as stated above. The de-
fendant prosecutes this appeal, and assigns the rulings Of the lower
court on the evidence, and upon the charges given and refused, as
error. 57
McClellan, J. * * * There was no error in the charges of the .
court to the effect that "the law required the highest degree of care
and diligence and skill, by those engaged in the carriage of passen-
gers by railroads, known to careful, diligent, and skillful persons en-
gaged in such business." This is the universal doctrine of the courts
and text-writers. Searle's Adm'r v. Railway Co., 32 W. Va. 370, 9
S. E. 248; Railroad Co. v. Snyder, 117 Ind. 435, 20 N. E. 284, 3 L.
R. A. 434, 10 Am. St. Rep. 60; notes to Frelsen v. Railway Co., 44
Amer. & Eng. R. Cas. 319, 42 La. Ann. 673, 7 South. 800; Railroad Co.
v. Ritter, 85 Ky. 368, 3 S. W. 591 ; Railway Co. v. Daugherty (Pa.)
6 Amer. & Eng. R. Cas. 139; Railroad Co. v. Anderson, 94 Pa. 351, 39
Am. Rep. 787; Railroad Co. v. Rainbolt, 99 Ind. 551; Railway Co. v.
Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. Rep. 754; Smith v. Rail-
way Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550; Dodge v. Steam-
Ship Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep.
541 ; Treadwell v. Whittier, 80 Cal. 575, 22 Pac. 266, 5 L. R. A. 498,
13 Am. St. Rep. 175; Hutch. Carr. §§ 503, 799-801; Thomp. Carr.
175 et seq. ; 2 Amer. & Eng. Enc. Law, p. 745 ; 2 Wood, Ry. Law, p.
1095 ; Railroad Co. v. Jones, 83 Ala. 376, 3 South. 902 ; Railway Co.
v. Love, 91 Ala. 432, 8 South. 714, 24 Am. St. Rep. 927.
67 S at condensed and part of opinion omitted.
SeC. 1) THE BURDEN OP PUOOF
G5
The authorities present equal unanimity to the proposition that
where a passenger receives injuries from the breaking down of '
carrier's vehicle, from the derailment of a car, from collisions or the
like, — occurrences which ordinarily would not take place but for some
negligence on the part of the carrier, — the prima facie presumption is
that the injury was the result of the carrier's negligence; and in an
action therefor, the plaintiff having shown that he was a passenger, and
that he was injured by the derailment, for instance, of the car in which
he was being transported, he is, upon this and without more, entitled
to recover the damages thereby sustained, unless the defendant, in
rebuttal of this prima- facie presumption, reasonably satisfies the jury
that the derailment was* not due to any negligence, and could not have
been prevented by the exercise of the highest degree of care, skill, and
diligence on the part of the carrier. Authorities supra ; Thomp. Carr.
181 et seq. ; 2 Wood, Ry. Law, 1096; 2 Amer. & Eng. Enc. Law, 768
et seq.; Railroad Co. v. Wightman, 29 Grat. (Va.) 431, 26 Am. Rep.
384; Railroad Co. v. Sanders, 73 Ga. 513; Railway Co. v. Seybolt, 18
Am. & Eng. R. Cas. 162 ; Hipsley v. Railway Co., 27 Am. & Eng. R.
Cas. 287, and note ; Railway Co. v. Leonhardt, 66 Md. 70, 5 Atl. 346 ;
Railroad Co. v. Timmons, 51 Ark. 459, 11 S. W. 690, 40 Am. & Eng.
R. Cas. 698, and notes; Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed.
115 ; Railroad Co. v. Pollard, 22 Wall. 341, 22 L. Ed. 877.
The cases of Railway Co. v. Hughes, 87 Ala. 610, 6 South. 413, and
Railroad Co. v. Reese, 85 Ala. 497, 5 South. 283, 7 Am. St. Rep. 66, to
which our attention has been invited in this connection, are not in point.
The parties injured, and who were plaintiffs in those actions, were
not passengers of the defendant companies, and the principles we have
been considering had no application in either of them. The trial court
correctly stated the law as to what facts made out a prima facie
case for the plaintiff, entitling him to recover, and as to the measure
of proof necessary to overturn the presumption of negligence grow-
ing out of and resting upon the facts adduced in the first instance by
the plaintiff. The special objection urged to the charges on this part
of the case is that they authorized a verdict for the plaintiff if the
evidence, aside from the presumption, was in equipoise on the question
of defendant's negligence. We understand this to be the law; oth-
erwise, the presumption would exert no influence in die case. If there
is no evidence of defendant's negligence except the fact of derail-
ment, or, which is the same thing in legal effect, the evidence as to
negligence aside from the derailment is equally balanced, there is noth-
ing to rebut the prima facie presumption of a want of due care, skill,
and diligence which that fact imports, and upon it the plaintiff would
be entitled to a verdict. To rebut and overturn the presumption, the
defendant must affirmatively satisfy the jury that it was not guilty of
negligence as charged by the court; and this in no sense can be said
Hint.Ev. — 5
66 THE COURT AND THE JURY (Ch. 1
to be done where the evidence is in such equipoise on the point as not
to impress the minds of the jury one way or the other. * * *
Reversed (on question of damages).
STARRATT et al. v. MULLEN.
(Supreme Judicial Court of Massachusetts, 1SS9. 148 Mass. 570, 20 N. E. 178,
2 L. R. A. 697.)
Contract, on an account annexed, for clothes sold and delivered and
money lent. At the trial in the superior court, before Lathrop, J.,
the defendant admitted that the clothes were delivered by the plaintiffs
to him, and that he received the money, but contended, and offered
evidence tending to show, that he lent to the plaintiffs four thousand
dollars, for which they gave him their promissory notes, in which
nothing was said about interest, and that when he lent the money to
the plaintiffs they orally agreed that for the use of the money they
would pay him the sum of twenty dollars per week and furnish him
with his clothes.
The plaintiffs asked the judge to rule that the agreement would be
void, not being in writing, and also that, the defendant having relied
upon this agreement, the burden of proof was upon him to prove it.
The judge refused so to rule, but ruled that the burden of proof was
upon the plaintiffs to show that the money sued for was lent, and that
the goods sued for were sold by the plaintiffs to the defendant.
The jury found for the defendant; and the plaintiffs alleged ex-
ceptions.
Holmes, J. Whether the agreement set up by the defendant could
have been enforced or not, the plaintiffs were at liberty to perform it
if they saw fit; and, if they furnished the clothes in pursuance of it,
they could not recover in this action. Marvin v. Mandell, 125 Mass.
562. The contract is not relied on as an executory or binding under-
taking, but simply to show that the plaintiffs delivered the clothes
upon an executed consideration, in which case, as in that of a gift,
they did not deliver them for pay to be received thereafter.
The ruling as to the burden of proof was correct. Phipps v. Mahon,
141 Mass. 471, 5 N. E. 835. We shall not repeat the reasoning of
that decision, with which we remain satisfied ; but, as it was question-
ed at the bar, we shall add a few words to what was said then. Un-
doubtedly many matters which, if true, would show that the plaintiff
never had a cause of action, or even that he never had a valid contract,
must be pleaded and proved by the defendant; for instance, infancy,
coverture, or, probably, illegality. Where the line should be drawn
might differ, conceivably, in different jurisdictions. But in the nar-
rowest view of what constitutes the plaintiff's case, if he declares on
a special contract, he must prove its terms as alleged; and on the
SeC. 1) THE BURDEN OF PKOOF C7
same principle, if he declares on the common counts, he must prove
that the goods or services were furnished for a reward to be paid
thereafter in money. "The plaintiff is bound to prove such a sale and
delivery as will raise a debt payable on request." Parke, B., in Cousins
v. Paddon, 2 Cromp., M. & R. 547, 5 Tyrw. 535, 543.
Hence it was settled in England that even under the Hilary rules,
if the defense was that the goods, although delivered to the defendant
at his request, were delivered as a gift, or under a contract to pay in
beer, or upon a consideration previously executed by the defendant, the
proper course was to plead the general issue, and that a special plea
would be bad upon special demurrer. Jones v. Nanney, 1 Mees. & W.
333 ; Grounsell v. Lamb, Id. 352 ; Morgan v. Pebrer, 3 Bing. N. C.
457, 466, 467 ; Wilson v. Story, 4 Jur. 463 ; Collingbourne v. Mantell,
5 Mees. & W. 289 ; Gardner v. Alexander, 3 Dowl. 146. See Marvin
v. Mandell, ubi supra. So as to special contracts. Brind v. Dale, 2
Mees. & W. 775; Kemble v. Mills, 1 Man. & G. 757, 770; Nash v.
Breese, 12 Law J. Exch. 305.
The cases cited answer the argument that payment in advance would
have to be pleaded and proved as payment. Payment in advance would
mean that the goods were furnished upon an executed consideration,
in pursuance of an antecedent duty, and that there never was a debt
due for them for a single instant. It has been held in England that,
even where the transaction was a cash sale, and the payment was made
at the same moment that the goods were furnished, the proper plea in
debt after the Hilary rules was nunquam indebitatus. Bussey v. Bar-
nett, 9 Mees. & W. 312; Wood v. Bletcher, 4 Wkly. Rep. 506, 27 Law
T. 126; Dicken v. Neale, 1 Mees. & W. 553, 559. See Com. v. Devlin,
141 Mass. 423, 431, 6 N. E. 64. We do not refer to the foregoing
cases as deciding the question of burden of proof, but the reasoning
on which they proceed, coupled with the rule that the burden of proof
never shifts, leads inevitably to the result reached in Phipps v. Mahon.
Proof of delivery of clothes by a tailor to the defendant at his re-
quest makes out a prima facie case, no doubt, because, in the ordinary
course of events, a suit of clothes is followed by a bill. But this is only
a probability, and, if the probability is shaken, it is for the plaintiffs
to show that the language or the circumstances imported an assump-
tion of liability by the defendant to pay money.
Exceptions overruled.
68 THE COURT AND THE JURY (Cll. 1
NEW ORLEANS & N. E. R. CO. v. HARRIS.
(Supreme Court of the United States, 1918. 247 U. S. 367, 38 Sup. Ct. 535,
62 L. Ed. 1167.)
Mr. Justice McReynolds b8 delivered the opinion of the Court.
While employed in interstate commerce by plaintiff in error, a com-
mon carrier by railroad then engaging in such commerce, Van Harris
a brakeman was run over by the tender of an engine moving in the
yard at New Orleans, Louisiana — February 5, 1914. He died within
a few minutes without regaining consciousness. Having qualified as
administratrix, his mother (defendant in error), charging negligence
and relying upon the federal Employers' Liability Act, sued for dam-
ages in a state court for Lauderdale county, Mississippi. A judgment
in her favor was affirmed by the Supreme Court without opin-
ion. * * *
Upon request of the administratrix, the following instruction
(among others) was given to the jury :
"No. 1. The court charges the jury for the plaintiff in this case that
under the rule of evidence in the state of Mississippi all that is re-
quired of the plaintiff in this case is to prove that injury was inflicted
by the movement of the defendant's train or engine and then the law
presumes negligence and then the burden of proof shifts to the de-
fendant to prove all of the facts and circumstances surrounding the in-
jury and from those facts so shown exonerate itself from all negli-
gence. * * *
The so-called "Prima Facie Act" of Mississippi, set out below', 69
provides that in actions against railroads for damages proof of injury
inflicted by an engine propelled by steam shall be prima facie evidence
of negligence. Relying upon and undertaking to apply this statute, the
trial court gave the quoted instruction, and in so doing, we think,
committed error.
The federal courts have long held that where suit is brought against
a railroad for injuries to an employe resulting from its negligence,
6 8 Part of opinion omitted.
6 9 Mississippi Code 1906, § 19S5, as amended by chapter 215, Laws 1912, p.
290:
"19S5 (1808). Injury to Persons or Property by Railroads Prima Facie
Evidence of Want of Reasonable Skill and Care, etc. — In all actions against
railroad corporations and all other corporations, companies, partnerships
and individuals using engines, locomotives, or cars of any kind or description
whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gas-
oline or lever power, and running on tracks, for damages done to persons or
property, proof of injury inflicted by the running of the engines, locomotives
or cars of any such railroad corporations or such other corporation, compa-
ny, partnership or individual shall be prima facie evidence of the want of
reasonable skill and care of such railroad corporation, or such other corpora-
tion, company, partnership or individual in reference to such injury. This
section shall also apply to passengers and employes of railroad corporations
and of such other corporations, companies, partnerships and individuals."
Sec. 1) THE BURDEN OF PROOF G!)
such negligence is an affirmative fact which plaintiff must establish.
Nitro-Glycerine Case, 15 Wall. 524, 537, 21 L. Ed. 206; Patton v.
Texas & Pacific Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45
L. Ed. 361 ; Looney v. Metropolitan Railroad Co., 200 U. S. 4S0, 487,
26 Sup. Ct. 303, 50 L. Ed. 564; Southern Ry. Co. v. Bennett, 233 U.
S. 80, 85, 34 Sup. Ct. 566, 58 L. Ed. 860. In proceedings brought un-
der the federal Employers' Liability Act rights and obligations depend
upon it and applicable principles of common law as interpreted and
applied in federal courts; and negligence is essential to recovery.
Seaboard Air Line v. Horton, 233 U. S. 492, 501, 502, 34 Sup. Ct. 635,
58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Southern
Ry. v. Gray, 241 U. S. 333, 339, 36 Sup. Ct. 558, 60 L. Ed. 1030;
New York Central R. R. Co. v. Winfield, 244 U. S. 147, 150, 37 Sup.
Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139;
Erie R. R. Co. v. Winfield, 244 U. S. 170, 172, 37 Sup. Ct. 556, 61 L.
Ed. 1057, Ann. Cas. 1918B, 662. These established principles and our
holding in Central Vermont Ry. v. White, 238 U. S. 507, 511, 512, 35
Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, we think make it
clear that the question of burden of proof is a matter of substance and
not subject to control by laws of the several states. * * *
Reversed. 60
PEOPLE v. GARBUTT.
(Supreme Court of Michigan, 1868. 17 Mich. 9, 97 Am. Dec. 162.)
CoolEy, C. J. 61 The defendant was convicted in the recorder's court
of the city of Detroit, on an information charging him with the murder
of one La Plante. On the trial it was shown that La Plante, and a
young woman named Emily Boucher, were coming down Woodward
avenue together, on the afternoon of September 21, 1867, when they
were overtaken by the defendant, who, after a few words, fired a
pistol at La Plante, wounding him mortally. No question was made
that La Plante died of this wound, but it was insisted, on behalf of the
defendant, that it was inflicted by him under circumstances of great
provocation, sufficient to reduce the offense from murder to manslaugh-
ter; and it was further claimed that he was at the time mentally
incompetent of a criminal intent ; the reason being temporarily over-
«o For a different view as to the effect of a statute making certain facts
presumptive evidence, see People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36
Am. St. Rep. 66S (1S93) ; State v. Salmon, 216 Mo. 466, 526, 115 S. W. 1106
(1909); Rockford v. Mower, 259 111. 604, 102 N. E. 1032 (1913). Compare
Sackheim v. Pigueron, 215 N. Y. 62, 109 N. E. 109 (1915), to the effect that
an amendment to the New York Code, providing that the defense of contrib-
utory negligence should be pleaded and proved by the defendant in aetii
under the death statute, thus changing the former rule, was a mere matt, r
of procedure and not of substance, and hence might be applied to a case
pending when the amendment took effect.
«i Part of opinion omitted.
70 THE COURT AND THE JUKI (Cll. 1
thrown through the combined influence of intoxicating drinks, the
great provocation, and perhaps of hereditary tendencies also. * * *
The defendant's counsel also requested the court to charge .the jury-
that sanity is a necessary element in the commission of crime, and
must be proved by the prosecution as a part of their case whenever the
defense is insanity. Also, that where the defense makes proof of in-
sanity, partial or otherwise, whenever it shall be made to appear from
the evidence that prior to oi 3 at the time of the offense charged, the
prisoner was not of sound mind, but was afflicted with insanity, and
such affliction was the efficient cause of the act he ought to be acquit-
ted by the jury. These requests were refused.
It is not to be denied that the law applicable to cases of homicide
where insanity is set up as a defense, is left in a great deal of confu-
sion upon the authorities ; but this, we conceive, springs mainly from
the fact that courts have sometimes treated the defense of insanity
as if it were in the nature of a special plea, by which the defendant
confessed the act charged, and undertook to avoid the consequences
by showing a substantive defense, which he was bound to make out
by clear proof. {The burden of proof is held by such authorities to
shift from the prosecution to the defendant when the alleged insanity
comes in question ; and while the defendant is to be acquitted unless
the act of killing is established beyond reasonable doubt, yet when that
fact is once made out, he is to be found guilty of the criminal intent,
unless by his evidence he establishes with the like clearness, or at least
by a preponderance of testimony, that he was incapable of criminal
intent at the time the act was done: Regina v. Taylor, 4 Cox, C. C.
155; Regina v. Stokes, 3 C. & K. 188; State v. Brinyea, 5 Ala. 244;
State v. Spencer, 21 N. J. Law, 202; State v. Stark, 1 Strob. (S. C.)
479. These cases overlook or disregard an important and necessary
ingredient in the crime of murder ; and they strip the defendant of
that presumption of innocence which the humanity of law casts over
him, and which attends him from the initiation of the proceedings un-
til the verdict is rendered. Thus, in Regina v. Taylor, supra, it is
said : "In cases of insanity there is one cardinal rule never to be de-
parted from viz. : that the burden of proving innocence rests on the
party accused." And in State v. Spencer, supra, the rule is laid down
thus : "Where it is admitted or clearly proved that the prisoner com-
mitted the act, but it is insisted that he was insane, and the evidence
leaves the question of insanity in doubt, the jury ought to find against
him. The proof of insanity at the time of committing the act ought
to be as clear and satisfactory, in order to acquit a prisoner on the
ground of insanity, as proof of committing the act ought to be in order
to find a sane man guilty." These cases are not ambiguous, and, if
sound, they more than justify the recorder in his charge in the case be-
fore us.
The defendant was on trial for murder. Murder is said to be com-
mitted when a person of sound mind and discretion unlawfully killeth
Sec. 1) THE BURDEN OF PROOF 71
any reasonable creature in being, and under the king's peace, with
malice aforethought, either express or implied : 3 Coke Inst. 47 ; 4
Bl. Com. 195 ; 2 Chit. Cr. L. 724. These are the ingredients of the of-
fense; the unlawful killing, by a person of sound mind and with
malice ; or to state them more concisely, the killing with criminal in-
tent; for there can be no criminal intent when the mental condition of
the party accused is such that he is incapable of forming one.
These, then, are the facts that are to be established by the prosecu-
tion in every case where murder is alleged. The killing alone does
not in any case completely prove the offense, unless it was accompanied
with such circumstances that malice in law or in fact is fairly to be
implied. The prosecution takes upon itself the burden of establishing
not only the killing, but also the malicious intent in every case. There
is no such thing in the law as a separation of the ingredients of offense,
so as to leave a part to be established by the prosecution, while as to
the rest the defendant takes upon himself the burden of proving a
negative. The idea that the burden of proof shifts in these cases is
unphilosophical, and at war with fundamental principles of criminal
law. The presumption of innocence is a shield to the defendant
throughout the proceedings, until the verdict of the jury establishes the
fact that beyond a reasonable doubt he not only committed the act, but
that he did so with malicious intent.
It does not follow, however, that the prosecution at the outset must
give direct proof of an active malicious intent on the part of the de-
fendant; or enter upon the question of sanity before the defendant has
controverted it. The most conclusive proof of malice will usually
spring from the circumstances attending the killing, and the prosecu-
tion could not well be required in such cases to go further than to put
those circumstances in evidence. And on the subject of sanity, that
condition being the normal state of humanity, the prosecution are at
liberty to rest upon the presumption that the accused was sane, until
that presumption is overcome by the defendant's evidence. The pre-
sumption establishes, prima facie, this portion of the case on the part
of the government. It stands in the place of the testimony of witnesses,
liable to be overcome in the same way. Nevertheless it is a part of
the case for the government; the fact which it supports must neces-
sarily be established before any conviction can be had ; and, when the
jury come to consider the whole case upon the evidence delivered to
them, they must do so upon the basis that on each and every portion
of it they are to be reasonably satisfied before they are at liberty to
find the defendant guilty.
This question of the burden of proof as to criminal intent was con-
sidered by this court in the case of Maher v. People, 10 Mich. 212,
81 Am. Dec. 781, and a rule was there laid down which is entirely
satisfactory to us, and which we have no disposition to qualify in any
manner. Applying that rule to the present case, we think that the
recorder did not err in refusing to charge that proof of sanity must be
72 THE COURT AND THE JURY (Cll. 1
given by the prosecution as a part of their case. They are at liberty
to rest upon the presumption of sanity until proof of the contrary con-
dition is given by the defense. But when any evidence is given which
tends to overthrow that presumption, the jury are to examine, weigh
and pass upon it with the understanding that although the initiative in
presenting the evidence is taken by the defense, the burden of proof up-
on this part of the case, as well as upon the other, is upon the prosecu-
tion to establish the conditions of guilt. Upon this point the case of
People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642, is clear and satis-
factory, and the cases of Commonwealth v. Kimball, 24 Pick. (Mass.)
373, Commonwealth v. Dana, 2 Mete. (Mass.) 340, State v. Marler, 2
Ala. 43, 36 Am. Dec. 398, Commonwealth v. McKie, 1 Gray (Mass.)
61, 61 Am. Dec. 410, Commonwealth v. Rogers, 7 Mete. (Mass.) 500,
41 Am. Dec. 458, and Hopps v. People, 31 111. 385, 83 Am. Dec. 231,
may be referred to in further illustration of the principle. See also
Doty v. State, 7 Blackf . (Ind.) 427. The recent case of Walter v. Peo-
ple, 32 N. Y. 147, does not overrule the case of People v. McCann,
but, so far as it goes, is entirely in harmony with the views here ex-
pressed. * * *
New trial awarded. 62
62 Accord: State v. Crawford, 11 Kan. 32 (1873); State v. Bartlett, 43 N.
H. 224, 80 Am. Dec. 154 (1S61) ; Davis v. United States, 160 U. S. 469, 16
Sup. Ct. 353, 40 L. Ed. 499 (1895) ; People v. Penman, 271 111. 82, 110 N. E.
894 (1915).
Compare Wagner, J., in State v. Klinger, 43 Mo. 127 (1S6S): "Both ob-
servation and experience show that insanity is easily simulated; and if a
bare doubt, which may be created in the minds of a jury by slight circum-
stances, is permitted to control and produce an acquittal, the guilty will
often go unpunished, and the interests of society suffer great injury. Mr.
Bishop, a writer of great accuracy on Criminal Law, remarks: 'Sanity, as
observed by a learned judge, is presumed to be the normal state of the hu-
man mind, and it is never incumbent on a prosecutor to give affirmative
evidence that such state exists in a particular case. But, suppose this nor-
mal state is denied to bave existed in the particular instance, then, if evi-
dence is produced in support of such denial, the jury must judge of it and
its effect on the main issue of guilty or not guilty; and if, considering all
the evidence, and considering the presumption that what a man does is sane-
ly done, and suffering the evidence and the presumption to work together in
their minds, they entertain a reasonable doubt whether the prisoner did the
act in a sane state of mind, they are to acquit, otherwise they are to con-
vict.' 1 Bish. Crim. Proc. § 534. I think that the safest and most reason-
able rule is that, as the law presumes every person who bas reached the age
of discretion to be of sufficient capacity to be responsible for crimes, the
burden of establishing the insanity of the accused affirmatively to the satis-
faction of the jury, on the trial of a criminal case, rests upon the defense.
It is not necessary, however, that this defense be established beyond a rea-
sonable doubt; it is sufficient if the jury is reasonably satisfied, by the
weight or preponderance of the evidence, that the accused was insane at the
time of the commission of the act. Loeffner v. State, 10 Ohio St. 598 (1S57) ;
Fisher v. People, 23 111. 283 (I860) ; Commonwealth v. Rogers, 7 Mete. (Mass.)
500, 41 Am. Dec. 458 (1844); Commonwealth v. Eddy, 7 Gray (Mass.) 5S3
(1856)."
Sec. 1) TIIE BURDEN OF PROOF 73
PEOPLE v. MILNER.
(Supreme Court of California, 1S9S. 122 Cal. 171, 54 Pac. 833.)
Hensiiaw, J. 08 Defendant, tried for the murder of S. J. Darrah,
was convicted of manslaughter. He appeals from the judgment, and
from the order denying him a new trial. The facts are presented
without conflict upon any material proposition, and under them de-
fendant's counsel strenuously insist that the verdict is against the
evidence. * * *
The only fair conclusion to be drawn from all this is that the de-
fendant's evidence is not contradicted upon any essential matter by any
other direct and positive evidence in the case. If this consideration
could properly end here, there can be no doubt but that a new trial
should be ordered, for the reason urged, that the verdict is contrary to
the evidence ; but a trial for murder differs in some respects from
the trial of any other criminal offense. "Upon a trial for murder,
the commission of the homicide by the defendant being proved, the
burden of proving circumstances of mitigation, or that justify or ex-
cuse it, devolves upon him, unless the proof on the part of the prose-
cution tends to show that the crime committed only amounts to man-
slaughter, or that the defendant was justifiable or excusable." Pen.
Code, § 1105.
In this case the killing by the defendant was clearly established by
the people's proof. No circumstances of mitigation or justification
to bring the case within the exception contemplated by the section
were shown in the prosecution's evidence. The burden of proof, then,
of justifying and excusing the act, or of proving circumstances which
would lessen the gravity of the offense to manslaughter, devolved up-
on the defendant. At the close of the prosecution's case the presump-
tion against the defendant was that he had committed an unlawful
homicide. It may not be said that the presumption of innocence coun-
tervailed against this, since by the express provision of the law the
presumption of innocence was overcome, and a presumption of guilt
took its place when the required facts were proven.
By section 2061 of subdivision 2 of the Code of Civil Procedure,
jurors are to be instructed "that they are not bound to decide in con-
formity with the declarations of any number of witnesses which do
not produce conviction in their minds, against a less number, or against
a presumption or other evidence satisfying their minds." In this is
a distinct recognition of the fact — First, that a presumption is evi-
dence ; and, second, that it is evidence which may outweigh the posi-
tive testimony of witnesses against it. It has been said that disputable
presumptions are allowed to stand, not against the facts they repre-
sent, but in iieu of proof of the facts, and that when the fact is prov-
en contrary to the presumption no conflict arises, but the presumption
• 3 Part of opinion omitted.
74 THE COURT AND THE JURY (Ch. 1
is simply overcome and dispelled. Society v. Burnett, 106 Cal. 514,
39 Pac. 922.
This is true. Against a proved fact, or a fact admitted, a disputa-
ble presumption has no weight ; but, where it is undertaken to prove
the fact against the presumption, it still remains with the jury to say
whether or not the fact has been proven, and, if they are not satisfied
with the proof offered in its support, they are at liberty to accept the
evidence of the presumption. In the Burnett Case, supra, both parties
testified to a state of facts contrary to the presumption. It was like
an admission. It relieved the question from conflict. But here the
burden of proving circumstances exonerating the defendant, or re-
ducing the grade of the crime, was cast upon him; and, even though
there be no direct contradictory evidence in the record, the jury was
not bound to decide in accordance with the defendant's statement,
if the presumption the better satisfied their minds.
In this connection the language of Justice Field in Quock Ting v.
United States, 140 U. S. 417, 11 Sup. Ct. 733, 851, 35 L. Ed. 501, is
peculiarly applicable: "Undoubtedly, as a general rule," says the
learned justice, "positive testimony as to a particular fact, uncontra-
dicted by any one, should control the decision of the court ; but that
rule admits of many exceptions. There may be such an inherent im-
probability in the statements of a witness as to induce the court or
jury to disregard his evidence, even in the absence of any direct con-
flicting testimony. He may be contradicted by the facts he states as
completely as by direct adverse testimony, and there may be so many
omissions in his own account of particular transactions, or of his own
conduct, as to discredit his whole story. His manner, too, of testify-
ing, may give rise to doubts of his sincerity, and create the impres-
sion that he is giving a wrong coloring to material facts. All these
things may properly be considered in determining the weight which
should be given to his statement, although there be no adverse verbal
testimony adduced." * * *
It is easily possible for this court to say, when the identity of the
slayer is in doubt, whether the evidence adduced is legally sufficient
for the conviction of the defendant; and, if it be not, then clearly
it is the duty of the court to set the verdict aside. Under such a state
of facts no burden is cast upon a defendant to prove anything. In
the case at bar, however, the killing by defendant is both proved and
admitted. The burden then is by law cast upon him to exculpate him-
self, or mitigate the gravity of the crime with which he is charged.
He 'has to do this to the satisfaction of the jury. They are to weigh
his evidence, and determine the fact whether or not it is to be believed,
and, if believed, whether it is sufficient. How much or how little
weight has the jury attached to his evidence? How much has the
witness' credibility been affected in their minds in his appearance upon
the witness stand, by his manner of testifying, by what may seem to
them some improbability in his story? All these are considerations
SeC. 1) THE BURDEN OP PROOF ^ ;j
before the jury in passing upon the weight of evidence. In this case
by its verdict the jury has, in effect, said: "The burden of proof cast
by law upon the defendant has not, in our judgment, been sustained.
His evidence does not produce conviction in our minds against the
presumption arising from the proof of the people, which does sat-
isfy our minds." In such a case as this, therefore, the verdict of the
jury may not be set aside for the lack of legally sufficient evidence to
support it.
New trial granted (on other grounds). 04
EGBERS v. EGBERS.
(Supreme Court of Illinois, 1S98. 177 111. 82, 52 N. E. 2S5.)
Carter, C. J. 65 This was a bill filed by defendants in error to
contest the validity of an instrument purporting to be the last will of
Magdalena Egbers, and to set aside the probate thereof. The bill al-
leged that the alleged will, dated August 7, 1896, was probated in the
county court of Hancock county; that it was never signed or pub-
lished by Magdalena Egbers, and that she was at the time of its alleged
execution so sick with fever that she was unable to execute an instru-
ment of any kind; that she was unconscious and out of her mind;
that she was very low with typhoid fever, unable to sit up in bed or
to write, or understand anything about the disposition of her prop-
erty; and that she had made a valid will three years before. The
will sought to be set aside is as follows:
"State of Illinois, County of Hancock. August 7, 1896. I want
all my legal heirs to have $100 dollars, and the remainder to John W.
Egbers; the land and household to use as he sees fit, as he is my
executor. Magdalena Egbers.
"Viola Egbers. Miss Mary Schaffner.
"Annie McArthur."
The land contained 80 acres, and was valued at about $4,000. Issues
were made, and tried before a jury, and a verdict was returned that
the said instrument was not the last will and testament of Magdalena
Egbers. This verdict was set aside, and another trial had, with the
same result. A decree was then entered setting aside the alleged will
and the probate thereof, and that John W. Egbers pay the costs. Pro-
ponents have sued out this writ of error to reverse the decree. * * *
«*A somewhat similar statute in Illinois is construed as placing the bur-
den of establishing self-defense on the defendant. Appleton v. People, 171
111. 473, 49 N. E. 708 (1S9S).
Compare People v. Downs, 123 N. Y. 558. 25 N. E. 9SS (1890), that the bur-
den is on the prosecution to establish guilt, ami not on tbe defendant to es-
tablish an excuse; and so in State v. Wingo, GO Mo. 181, 27 Am. Rep. 329
(1877).
es Part of opinion omitted.
76 THE COURT AND THE JURY (Ch. 1
It is next urged that the court erred in giving to the jury the fol-
lowing instruction at the request of the contestants: "You are in-
structed that the burden of proof is upon the proponents to show that
the will offered by them was signed by Magdalena Egbers on August 7,
1896, and, unless he has proven such execution by a preponderance
of the evidence, you should find for the contestants. But if you be-
lieve from the evidence that Magdalena Egbers did execute the instru-
ment offered as a will, and that the same was attested by two credible
witnesses in her presence, and that the two subscribing witnesses have
sworn that at the time she executed it she was of sound mind, then
the burden shifts, and the contestants assume the burden of prov-
ing the testatrix was not of sound mind, as defined in these instruc-
tions." It is said that this instruction required the proponents,
throughout the whole case, to sustain the burden of proving the sign-
ing 66 of the will, whereas, it is contended, the burden of proving the
execution of the instrument, as well as the alleged unsoundness of mind
of the testatrix, after a prima facie case had been made by the pro-
ponents, shifted to the contestants, who were required to prove by
a preponderance of all the evidence the allegations of their bill that she
never signed or executed the same.
As said by the learned author of the article entitled "Burden of
Proof" in 5 Am. & Eng. Enc. Law (2d Ed.), the term "burden of proof"
has two distinct meanings. By the one is meant the duty of establishing
the truth of a given proposition or issue by such a quantum of evidence
as the law demands in the case in which the issue arises. * By the
other is meant the duty of producing evidence at the beginning or at
any subsequent stage of the trial, in order to make or meet a prima
facie case. See notes and cases there cited. Generally speaking, the
burden of proof, in the sense of the duty of producing evidence, passes
from party to party as the case progresses, while the burden of proof,
meaning the obligation to establish the truth of the claim by a prepon-
derance of evidence, rests throughout upon the party asserting the af-
firmative of the issue, and, unless he meets this obligation upon the
whole case, he fails. This burden of proof never shifts during the
course of a trial, but remains with him to the end. This court has
repeatedly said that the law presumes every man to be sane until the
contrary is proved, and the burden of proof rests upon the party alleg-
ing insanity. Argo v. Coffin, 142 111. 368, 32 N. E. 679, 34 Am. St.
Rep. 86; Guild v. Hull, 127 111. 523, 20 N. E. 665; Menkins v. Light-
ner, 18 111. 282. But it is incumbent on the proponents of the will to
make out a prima facie case in the first instance, by proper proof of the
due execution of the will by the testator, and of his mental capacity,
as required by the statute. The burden of proof is then upon the con-
66 See rule in California that under the statute the contestant has the
burden of establishing the grounds of contest, including lack of due execu*
tion. In re Latour, 140 Cal. 414, 73 Pac. 1070, 74 Pac. 441 (1892).
SeC. 1) THE BURDEN OF PROOF 77
testants to prove the allegations of their bill by a preponderance of
all of the evidence, — that the testator was mentally incompetent. The
law throws the weight of the legal presumption 67 in favor of sanity
into the scale in favor of the proponents, from which it necessarily re-
sults that upon the whole case the burden of proof rests upon the con-
testants to prove the insanity of the testator. Craig v. Southard, 162
111. 209, 44 N. E. 393 ; Id., 148 111. 37, 35 N. E. 361 ; Taylor v. Pegram,
151 111. 106, 37 N. E. 837; Wilbur v. Wilbur, 129 111. 392, 21 N. E.
1076; Carpenter v. Calvert, 83 111. 62.
We are not called upon to consider in this case whether the rule re-
lating to the burden of proof is the same in its application to both
questions raised by the pleadings, viz.: First, that Magdalena Egbers
did not sign the alleged will; and, second, that she was mentally
incompetent to make a valid will. There is the natural presumption
that she was sane, which, with all of proponents' evidence, must be
overcome, and sufficient evidence adduced so that upon the whole evi-
dence there is a preponderance in support of the allegation in the bill
of her mental unsoundness, before the will can be set aside on that
ground. See cases cited above. But there is no presumption that she
signed the will, except that which the law raises from the prima facie
case made by the proponents. But, whether any distinction can be
drawn or not (Purdy v. Hall, 134 111. 298, 25. N. E. 645; McCom-
mon, 151 111. 428, 38 N. E. 145), it is a sufficient answer to the
point made on the instruction, that the court gave to the jury two in-
structions at the request of the proponents, which, in the respect men-
tioned, were in substance the same as the instruction complained of,
and they cannot be heard to complain of an alleged error which they
asked the court to commit. * * * , ^ ,~ j j
Decree affirmed. 68 ^-5 2-
6 7 Baker, J., in Graves v. Colwell, 90 111. 612 (187S): "It has been said
that presumptions of law derive their force from jurisprudence and not from
logic, and that such presumptions are arbitrary in their application. This is
true of irrebuttable presumptions, and, primarily, of such as are rebuttable.
It is true of the latter until the presumption has been overcome by proofs,
and the burden shifted; but when this has been done, then the conflicting
evidence on the question of fact is to be weighed and the verdict rendered,
in civil cases, in favor of the party whose proofs have most weight, and in
this latter process tbe presumption of law loses all that it had of mere ar-
bitrary power, and must necessarily be regarded only from the standpoint of
logic and reason, and valued and given effect only as it has evidential char-
acter. Primarily, the rebuttable legal presumption affects only the burden
of proof, but if' that burden is shifted back upon the party from whom it
first lifted it, then the presumption is of value only as it has probative
force, except it be that on the entire case the evidence is equally balanced,
in which event the arbitrary power of the presumption of law would settle
the issue in favor of the proponent of tbe presumption. Regarded in its evi-
dential aspect, a given presumption of law may have either more or less of
probative value, dependent upon the character of the presumption itself and
upon the circumstances of the particular case in which the issue may arise."
G8 In New York the prima facie effect of tbe probate is invoked to place
the burden of establishing incapacity on the contestant. Dobie v. Armstrong,
1G0 N. Y. 5S4, 55 N. E. 302 (1S99).
78 THE COURT AND THE JURY (Ch. 1
BALDWIN et al. v. PARKER et al.
(Supreme Judicial Court of Massachusetts, 186S. 99 Mass. 79, 96 Am. Dec.
697.)
Appeal by Artemas Parker, Stephen Taylor and his wife, Emme-
line, and the minor children of Frederick Parker, from a decree of the
judge of probate, allowing as the last will of Jonas Parker, of Car-
lisle, who died June 2, 1866, an instrument executed May 17, 1866,
which disposed of the bulk of the testator's estate to his second wife
and her children.
At the hearing, before Gray, J., the formal execution and attesta-
tion of this instrument were proved; and a trial by jury was had
upon two issues: (1) Whether the testator at the time of the execu-
tion was of sound and disposing mind. (2) Whether the execution
was procured by the undue influence of Anna Parker, John Gleason,
Joanna Gleason and John F. Baldwin, or some of them. It appeared
in evidence that Jonas Parker was twice married, the first time in 1809
and the second in 1818; that the appellants Artemas and Emmeline,
together with Frederick and Jonas, who died before him, were his
children by his first wife, who died in 1817; and that Joanna, wife of
John Gleason, and Fanny, wife of John F. Baldwin, were his children
by his second wife, Anna Parker, who survived him.
The appellants contended that the burden of proof was upon the
executors on both issues ; the judge ruled that the burden of proving
the sanity of the testator was upon the executors, but the burden of
proving undue influence was upon the appellants; and to this ruling
the appellants alleged exceptions. 69
Hoar, J. * * * The other question reserved upon the report
is of more difficulty and importance. It is the question, Upon whom
is the burden of proof upon the issue of undue influence? The claim
on the part of the appellants is, that the party propounding the will
is bound to prove that it is the will of the testator, and not of some
other person operating upon and through him. On the other hand,
the executors contend that when the execution of the instrument and
testamentary capacity are established, nothing more is required by law
to be shown affirmatively ; and that, to avoid an instrument for fraud
or duress, they must be proved by him who alleges them. In sup-
port of the former view it is argued that the issue upon the probate
of a will is substantially a single one, to prove that the instrument was
freely executed, according to the forms required by law, by a testa-
tor of sound mind; and that, whatever presumptions may exist upon
any part of this issue, the burden of proof does not shift.
The question is certainly not without difficulty, and the authorities
upon it are very conflicting. It is settled in this Commonwealth that
on the issue of sanity or testamentary capacity the burden of proof
so Part of statement and opinion omitted.
Sec. 1) THE BURDEN OF PROOF 79
is upon the party that offers the will for probate; and that the pre-
sumption 70 of sanity does not shift the burden upon the opposing
to Knowlton, C. J., in Clifford v. Taylor, 204 Mass. 358, 90 N. E. 8G2 (1910):
"The petitioner requested the judge to instruct the jury as follows: 'Al-
though the executor has the burden of proof upon him to satisfy the Jury
that testatrix was of sound and disposing mind and memory at the time of
the execution of the will, there is a presumption of sanity, and that pre-
sumption stands until it is rebutted.' Using the word 'rebutted' in the sense
of 'met by evidence to the contrary,' the proposition is correct. Richardson
v. Bly, 181 Mass. 97, 99, G3 N. E. 3 (1902). Looking at the instruction on
this subject in different parts of the charge, it is not clear what the jury
would understand as the law of the case. Some of the judge's language
seems to be substantially in accordance with this proposition. Other lan-
guage seems to imply that, the moment an issue is presented by a denial of
sanitv, the presumption becomes of no effect, and the case is to be tried upon
the evidence introduced by the parties, as if there were no presumption. The
true rule is that the presumption is enough to sustain the burden of proof,
until evidence is introduced which tends to control it. On the introduction
of such evidence, the case is to be determined upon the whole evidence, in-
cluding the presumption of sanity, and if the preponderance of the evidence
is in favor of sanity, the burden of proof is sustained and the jury will find
for the executor. If, upon the whole evidence, including this presumption,
the scales are in even balance, the finding will be for the contestant, on the
ground that the executor has failed to sustain the burden of proof. Fulton
v. Umbehend, 1S2 Mass. 4S7, 65 N. E. 829 (1903) ; Cohasset v. Moors, 204
Mass. 173, 90 N. E. 978 (1910)." _
Compare Doe. J., in Lisbon v. Lyman, 49 N. H. 553 (1870)>**lf there was
a presumption of law that minors are not emancipated, it amounted to no
more than this, the plaintiff alleging emancipation had the burden of proof;
and that was known without the assistance of a presumption. A legal pre-
sumption is a rule of law — a reasonable principle, or an arbitrary dogma-
declared by the court. There may be a difficulty in weighing such a rule of
law as evidence of a fact, or in weighing law on one side, against fact on the
other. And if the weight of a rule of law as evidence of a fact, or as coun-
terbalancing the evidence of a fact, can be comprehended, there are objec-
tions to such a use of it. In this case, on the question of emancipation, if
the scales holding all the evidence on both sides were even, did the presump-
tion when added to the defendant's side incline them in his favor? If it did,
it had no effect on the case, because it was not necessary for the defendant
to produce a preponderance of the evidence; if it did not, the jury were in-
structed to weigh as evidence, that which had no weight. If the scales hold-
ing all the evidence on both sides, preponderated hi favor of the plaintiff,
did the presumption, when added to the defendant's side, restore the equi-
librium? If it did, the plaintiff was required to produce something more
than a preponderance of the evidence ; if it did not, it was useless. A legal
presumption is not evidence. In civil cases, it is the finding of a fact or the
decision of a point, when there is no testimony, and no inference of fact
from the absence of testimony, on the subject, or when the evidence is balanc-
ed. And often the fact is also found, or the decision made, by the rule of
law which imposes the burden of proof on the party having the affirmative.
When this is the case, the assignment of the burden of proof to one party,
and the benefit of the legal presumption to the other, is a double and un-
just use of one and the same thing. Among the various ways in which the
province of the jury has been encroached upon, in England, the use of legal
presumptions as substitutes for evidence, is one of the most conspicuous.
In this country, where the right of the jury, and the right of parties to a
full trial of facts by jury, are more carefully observed, the English collection
of legal presumptions, is not to be adopted upon the mere strength of prece-
dent. In each instance a critical examination is to be made to ascertain
whether that which is asserted as a legal presumption is anything more
than a conclusion of fact at which the court may think the jury ought to ar-
rive. The presumption against the freedom of minors, was not an element of
80 THE COURT AND THE JURY (Ch. 1
party. Crowninshield v. Crowninshield, 2 Gray, 524; Baxter v. Ab-
bott, 7 Gray, 72. The burden is undoubtedly on the same side to
prove the formal execution of the instrument, and that the testator
executed it as and for his last will.
The objection to a will that it was obtained by undue influence is
not one which it is easy to define with precision. The term seems to
include both fraud and coercion. Sir John Nicholl defines it to be
that degree of influence which takes away from the testator his free
agency ; such as he is too weak to resist ; such as will render the act
no longer that of a capable testator. Kinleside v. Harrison, 2 Phil-
lim. 551. Where influence has been exerted upon a person of feeble
mind, or whose faculties are impaired by age or disease, it is not al-
ways easy to draw the line between the issues of sanity and of undue
influence. So it is possible that in many cases the coercion might be
such as to be available to set aside the will on the ground that it had
not been executed by the testator.
But where the issue of undue influence is a separate and distinct
issue, involving proof that the testator, though of sound mind, and
intending that the instrument, which he executes with all the legal
formalities, shall take effect as his will, was induced to execute it
by the controlling power of another, we think the weight of authority
and the best reason are in favor of imposing upon the party who al-
leges the undue. influence the burden of proving it. And we are in-
clined to think that this has been the general practice in this Com-
monwealth. Glover v. Hayden, 4 Cush. 580.
evidence; could not be weighed as evidence; and it does not appear that
any use could rightfully be made of it in the case. It was put into the scale
with the defendant's evidence, where it would be likely to mislead the jury,
and give the defendant a material advantage to which he was not entitled;
but this is no cause for setting aside the verdict on the defendant's motion."
A rule of law may place the burden of producing evidence on the negative
instead of the affirmative, or it may place the burden of establishing on the
negative instead of the affirmative, and it may conceivably do the latter in
case the affirmative establishes some subordinate proposition. For comments
on such a rule, see article by Professor Abbott in 6 Harvard Law Review,
125.
It is impossible, however, to understand the mental process involved in
balancing or weighing a rule of law along with evidence. As Lord Justice
"Bo wen expressed it, in Abrath v. Railway, 11 Q. B. D. 440 (1SS3), when a
jury is asked as to a plain question of fact, either they believe it or do not
believe it, or can not arrive at a conclusion. But the general probability on
which many presumptions are based might conceivably affect the conclusion
reached by the jury. For example, the general probability that a person is
more likely to be sane than otherwise, because the majority of individuals
are sane, does not appear to furnish much aid in the determination of the
mental condition of X., as to whose behavior there is ample evidence. While
it is true that the majority of individuals are sane, it is equally true that
the majority of sane individuals do not behave in certain unusual ways. On
the other hand the probability that the scattering of fire by a locomotive is
due to bad condition or faulty construction may have considerable force as
an argument in a given case, quite apart from any technical rule of pre-
sumption. When courts talk of weighing presumptions with evidence, they
doubtless mean that such probabilities may be considered, but the expression
is unfortunate, and apt to mislead a jury. — Editor.
SeC. 1) THE BURDEN OF PROOF 81
The most recent decision in the court of appeals in the state of
New York upon the question is to the same effect. Tyler v. Gardiner,
35 N. Y. 559. All the judges concurred upon this point, though they
differed upon others arising in the case.
The decision in Crowninshield v. Crowninshield, and in Baxter v.
Abbott, ubi supra, that the burden of proof is upon the party pro-
pounding the will to establish the sanity of the testator, although the
presumption of law is in favor of sanity, is placed very much upon
the construction of the statute of wills, which makes the sanity of the
testator a condition precedent to his power to make a will. But when
all is proved that the statute requires ; when a testator of sound mind
has intentionally made and published a will according to the forms
of law, his will is as much a legal conveyance and disposition of his
property as any other lawful instrument of conveyance. It may be im-
peached or made invalid by proof of fraud, duress, or undue influ-
ence, which have caused it to contain provisions which he has been
wrongfully induced to insert in it ; but so may a deed or other con-
tract be impeached for the like reason.
The defence of duress or fraud, when made in avoidance of a deed,
is required to be specially pleaded, and is not good under the issue
of non est factum. The reason seems to be, that the instrument is
voidable, and not void ; it is the deed of the maker of it ; and, if he
would avoid it, he is called upon to prove the existence of facts which
will authorize him to do so. Yet the issue of fraud or duress in-
volves the question whether the deed was ever obligatory, as much as
the same issue does the original validity of a will. It is true that the
distinction between a voidable and void act has no precise application
to a will ; because a will is in its nature revocable, and may be set
aside by a testator at his pleasure. But the question whether a will
is his free act, the product of his own volition and not of another's
is essentially the same as in the case of a contract ; and there is no
positive statute rule to make a difference in this respect.
It was said by Baron Parke in Barry v. Butlin, 1 Curteis, 638, and
the observation was quoted with approbation by Mr. Justice Thomas
in Crowninshield v. Crowninshield, "that the onus probandi lies in
every case upon the party propounding a will ; and he must satisfy
the conscience of the court that the instrument so propounded is the
last will of a free and capable testator." This statement, though ap-
parently supporting the doctrine that the burden of proof on the is-
sue of undue influence is on the party propounding the will, we do
not feel sure was so intended.
The case was tried upon an allegation by the executors propounding
the will, and upon allegations of the heir setting up that it was ob-
tained by undue influence. The question discussed by Baron Parke
upon the burden of proof was upon the point, whether, if it appeared
that the will was prepared by a person who took a benefit under it, it
Hint.Ev. — 6
82 THE COURT AND THE JUEY (Cll. 1
made a presumption and onus probandi against the will, and re-
quired proof that the contents of the will were known to the testator.
He says: "If it is intended to be stated, as a rule of law, that in
every case in which the party preparing the will derives a benefit
under it, the onus probandi is shifted, and that not only a certain
measure, but a particular species of proof is therefore required from
the party propounding the will, we feel bound to say that we conceive
the doctrine to be incorrect. The strict meaning of the term onus
probandi is this, that if no evidence is given by the party on whom
the burden is cast the issue must be found against him." "In all
cases this onus is imposed on the party propounding a will ; it is in
general discharged by proof of capacity and fact of execution ; from
which the knowledge of and assent to the contents of the instrument
are assumed, and it cannot be that the simple fact of the party who
prepared the will being himself a legatee is in every case and under all
circumstances to create a contrary presumption, and to call on the
court to pronounce against the will unless additional evidence is pro-
duced to prove the knowledge of its contents by the deceased."
He concludes that it amounts only to a circumstance of suspicion,
calling for care in the court, and calling on it not to grant probate
without entire satisfaction that the instrument does express the real
intentions of the deceased.
The whole result of the reasoning would seem to be, that upon the
separate issue of undue influence the burden of proof is upon the
party alleging it; and that it does not shift upon the party having
the general burden of establishing the will, upon the mere introduc-
tion of evidence of a single circumstance of suspicion. If no evi-
dence were offered on either side, the allegation of undue influence
would fail. In the language of Chief Justice Mellen, "the law requires
proof of facts ; especially when the object is to destroy and set aside
an act apparently deliberate, and executed with all usual and legal
formalities.'* Small v. Small, 4 Greenl. (Me.) 224, 16 Am. Dec. 253.
The view which we have taken of the English doctrine on the subject
is confirmed by a recent decision in the house of lords, Boyse v. Ross-
borough, 6 H. L. Cas. 2. In that case, page 49, Lord Cranworth says :
"One point, however, is beyond dispute, and that is, that where once
it has been proved that a will has been executed with due solemnities
by a person of competent understanding, and apparently a free agent,
the burden of proving that it was executed under undue influence is
on the party who alleges it. Undue influence cannot be presumed."
The rule which was adopted at the trial seems therefore to us to
be correct in principle, and supported by authority, as well as obvious-
ly the most convenient in practice; and none of the objections to
the probate of the will can be supported.
Judgment on the verdict. 71
7iTh.it the burden of establishing undue influence is on the contestants,
see Boyse v. Rossborough, 6 H. L. C. 2 (1857); Michael v. Marshall, 201
Sec. 1) THE BURDEN OF PROOF 83
WHEELER et al. v. ROCKETT et al.
(Supreme Court of Errors of Connecticut, 1917. 91 Conn. 3S8, 100 Atl. 13.)
Thayer, J. 72 The jury gave the plaintiffs a verdict setting aside
an alleged will of Mrs. Keppy which had been approved by the pro-
bate court. The defendant alleges error in the court's refusal to set
aside the verdict, and in several rulings upon questions of evidence,
in the charge as given, and in refusing to charge as requested. * * *
The tenth assigns error in the court's failure to charge, as requested
by the defendant, that the law presumes every person sane arid capa-
ble of making a will until the contrary is shown. The request was
not adapted to the circumstances of the case before the jury, and if
given would have tended to mislead them as to the party on whom
the burden of proof lay upon the question of the testatrix's soundness
of mind. The burden of proving that the testatrix was of sound mind
was upon the proponents of the will. They might in the first in-
stance prove the execution of it in due form, and if nothing in the
circumstances at the time of its execution tended to show the con-
trary, the proponents might rely upon the prima facie presumption
that the testatrix was of sound mind. The presumption of sanity would
be sufficient until evidence tending to show the contrary was introduced
by the contestants. The proponents would after the introduction of
such- evidence be required to rebut this by preponderating evidence,
and the presumption of sanity would have no probative force. Knox's
Appeal, 26 Conn. 20, 22; Livingston's Appeal, 63 Conn. 68, 72, 26 Atl.
470; Barber's Appeal, 63 Conn. 393, 402, 27 Atl. 973, 22 L. R. A.
90; Vincent v. Mutual Reserve Fund Association, 77 Conn. 281, 290,
291, 58 Atl. 963. There was evidence in this case, as we have said
before, tending to show that the testatrix harbored a delusion which
in 70, G6 N. E. 273 (1903) ; Prentis v. Bates, 93 Mich. 234, 53 N. W. 153, 17
L. R. A. 494 (1892) ; Morton v. Heidorn, 135 Mo. 60S, 37 S. W. 504 (1896) :
Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701 (1901); In re Kindberg, 207
N. Y. 220, 100 N. E. 789 (1912). Contra: Sheehan v. Kearney, 82 Miss. 6S8,
21 South. 41, 35 L. R. A. 102 (1903), strong opinion.
That in certain cases of confidential relations, the burden of establishing
the absence of undue influence is on the proponent, see Hegney v. Head, 126
Mo. 619, 29 S. W. 5S7 (1895) ; In re Cowdry's Will, 77 Vt. 359, 60 Atl. 141, 3
Ann. Cas. 70 (1905).
In England there appears to be no presumption of undue influence from
confidential relations. Parfitt v. Lawless, L. R. 2 P. & D. 462 (1872).
But in certain cases of wills prepared by one standing in a confidential
relation, the general presumption from formal execution is not sufficient, and
the proponent is required to prove that the testator knew and approved the
contents of the instrument. Tyrrell v. Painton [189 1J Probate, 151. Com-
pare Barry v. Butlin, 2 Moore, P. C. 4S0 (1S3S).
72 Part of opinion omitted.
84 THE COURT AND THE JURY (Ch. 1
might lead her to cut off her younger daughter with a pittance as she
did. The court therefore properly refused the request in question.
* * *
No error. 78
HUGHES v. WILLIAMS.
(Supreme Judicial Court of Massachusetts, 1918. 229 Mass. 467, 118 N. E.
914.)
Rugg, C. J. This is a petition for the registration of title to land.
It was appealed from the land court to the superior court, where it
was tried to a jury upon four issues. There was found to be no error
of law in the trial of three of these issues, but as to the other issue
exceptions were sustained and a new trial ordered confined to that is-
sue. 218 Mass. 448, 105 N. E. 1056. The material dates and facts
respecting the chain of title are these: On April 1, 1896, the respond-
ent Williams acquired title to the locus by deed which was duly re-
corded. He retained that title until July 5, 1901, when he deeded it to
one Jones by deed duly recorded ; on the same date he took a deed back
from Jones to himself, which was not recorded until March, 1908.
Meanwhile, on May 24, 1906, while the record title stood in the name
of Jones, one Duckery brought an action against Jones, and attached
the locus, which was sold on execution sale to the petitioner, and a
sheriff's deed thereof to him dated April 10, 1909, was duly recorded.
The petitioner alleges that he is the owner of the land by reason of
this sheriff's deed. The respondent pleaded that he was owner by vir-
tue of his deed of April 1, 1896, and of the deed from Jones. The
previous trial resulted in findings that Williams protested at the ex-
ecution sale, and that the petitioner before his purchase at the execu-
tion sale was informed that the beneficial interest was in Williams and
that Jones had a bare record title.
73 Barclay, J., in Morton v. Heidorn, 135 Mo. 608, 37 S. W. 504 (1S96):
"In the case at hand, the jury is required to find the charge of undue in-
fluence 'proven' to their 'satisfaction' by a 'preponderance of the evidence,'
having just been told that, upon proof of due execution and attestation of
the document and of the soundness of testator's mind, 'said instrument of
writing was and is presumed to be his free and voluntary act.' In the con-
nection in which the words appear, we apprehend the jury would naturally
infer that the 'preponderance of evidence' must be such as to overcome the
presumption which the court declared to exist as a matter of law. That
declaration is not entirely correct. When the cause was submitted to the
jury, there was no presumption of the law that the document was testator's
free and voluntary act.' There was evidence before them which all the
parties and the court alike interpreted as tending to prove undue influence.
Both adversary parties asked and obtained instructions on that theory. In
that state of the case it was not proper to give proponents of the will the
benefits of a so-called presumption which is merely one of fact, applied in the
absence of any evidence permitting a different inference."
Compare reasoning of Baldwin, J., in Sturdevant's Appeal, 71 Conn. 392,
42 Atl. 70 (1S99).
SeC. 1) THE BURDEN OF PROOF 85
The single question submitted at the last trial was this : "Did James
H. Duckery, before his attachment of the property in question, have
actual knowledge of the existence of the deed back from Jones to Wil-
liams, of July 5, 1901 ?"
The trial judge ruled that the burden of proof was on the petitioner
to satisfy the jury that Duckery did not have such knowledge. The
point now presented for decision is the correctness of that ruling.
It is provided by R. L. c. 127, § 4, that : "A conveyance of an estate
in fee simple * * * shall not be valid as against any person, ex-
cept the grantor * * * his heirs and devisees and persons hav-
ing actual notice of it" unless it is recorded.
The burden of proving that he was entitled to the registration of the
title to the premises rested upon the petitioner, and remained upon
him throughout. Temple v. Benson, 213 Mass. 128, 132, 100 N. E.
63 ; Hughes v. Williams, 218 Mass. 448, 449, 105 N. E. 1056.
The petitioner's title appeared to be perfect on the record. It could
be defeated only provided that Duckery, the attaching creditor in the
action against Jones, had actual knowledge of the unrecorded deed
from his debtor, Jones, to the respondent, and provided it appeared
further that the petitioner himself at the time of his purchase also had
such actual knowledge. The respondent did not attack the sufficiency
of the petitioner's title on the record, nor did he assail the validity of
any instrument through which the petitioner claimed title; but he as-
serted title in himself on the strength of facts which he alleged exist-
ed outside the record, namely, actual knowledge by Duckery at the
time of making his attachment of the existence of the deed to himself
and actual knowledge by the petitioner of the same fact at the time of
his purchase. If these were the facts, the respondent was entitled to
prevail under the terms of the statutes. Wenz v. Pastene, 209 Mass.
359, 95 N. E. 793. But this assertion by the respondent was in the
nature of a confession of the record title, of the petitioner and an
avoidance of its natural force and effect by the existence of extrane-
ous facts, which as matter of common honesty and under the statute
would prevent the petitioner from taking advantage of his clear rec-
ord title.
The statement of the legal principle where the burden of proof rests
is plain. The party who makes and is required to make an assertion
of a fact in order to set forth a case as matter of law entitling him
to prevail, and whose case requires the proof of that fact, has at all
times the burden of proving such fact. But where the party upon
whom the burden of proof is cast offers competent proof of that fact,
and his adversary instead of producing proof to negative that same fact
proposes to show another and a distinct fact which avoids the effect
of the first fact, then the burden of proof rests upon the party propos-
ing to show the latter fact. This is an affirmative defense, the burden
of proving which rests upon the party asserting it. Powers v. Russell,
86 THE COURT AND THE JURY (Cll. 1
13 Pick. 69, 76, 77; Wylie v. Marinofsky,. 201 Mass. 583-584, 88 N.
E. 448; Wood v. Blanchard, 212 Mass. 53-56, 98 N. E. 616; Stocker
v. Foster, 178 Mass. 591-600, 601, 60 N. E. 407 ; Parker v. Murphy,
215 Mass. 72-75, 102 N. E. 85.
The practical application of the rule oftentimes raises questions of
difficulty. Several cases have arisen where the burden of proof of the
"actuaf notice" mentioned in the statute has been referred to. In
Pomroy v. Stevens, 11 Mete. 244, at 248, it was said: "The party re-
lying on an unregistered deed, against a subsequent purchaser or at-
taching creditor, must prove that the latter had actual notice or knowl-
edge of such deed."
In Dooley v. Wolcott, 4 Allen, 406, the trial judge instructed the
jury that it was incumbent upon the tenant, who relied upon an un-
recorded deed, to prove that the demandant had actual notice of it,
and it was said at page 409: "Upon the question of notice to the de-
mandant of the tenant's prior unrecorded deed, and as to the right of
the tenant to maintain his title thereby, the court properly instructed
the jury."
In Lamb v. Pierce, 113 Mass. 72, the defendant relied upon an un-
recorded deed. It was said at page 74: "This statute requires that
the plaintiff must be shown to have had actual notice that there had
been a conveyance to the defendant of the estate. * * * The party
who claims under an unrecorded deed must prove that the subsequent
purchaser had actual knowledge or notice of such deed."
In all these cases as they were presented the burden was upon the
tenant in a real action, or upon the defendant in an action of trespass,
and hence what has been quoted from these opinions is precisely ap-
plicable to the case at bar. It also is said in Jackson on Real Actions,
p. 158: "If the defendant * * * undertakes to show a better title
in himself, then he becomes the actor, and must show his title with
the same certainty that was before required of the plaintiff."
The case is somewhat analogous to insurance policies, where the
burden of showing that death or accident resulted from excepted or
prohibited risks added to the main contract by way of proviso rests
upon the insurer. Nichols v. Commercial Travelers' Ass'n, 221 Mass.
540, and cases collected at 546, 109 N. E. 449. It is not unlike the
classification of goods as inflammable under exceptions in a bill of
lading, the burden of proving which rests upon the carrier.. A. J.
Tower Co. v. Southern Pacific Co., 184 Mass. 472, 69 N. E. 348. It is
distinguishable from cases arising under the negotiable instruments act,
where by the statute the burden of proving want of notice of in-
firmity in note is cast upon the holder, Phillips v. Eldriclge, 221 Mass.
103, 108 N. E. 909, and from cases where the matter of defense, though
apparently somewhat special, really strikes at the root of a fact es-
sential to the support of the plaintiff's case. Central Bridge v. Butler,
2 Gray, 130; Sohier v. Norwich Fire Ins. Co., 11 Allen, 336-338;
Sec. 1) THE BURDEN OF PROOF 87
Cohen v. Longarini, 207 Mass. 556, 93 N. E. 702. The case at bar also
is distinguishable from the decision as to waiver of his rights by the
respondent or estoppel against asserting them, the burden of proving
which was held when the case was here before to be upon the peti-
tioner. That was an affirmative issue, and the burden rested upon
the one who set it up, namely, upon the petitioner.
The result is that the burden of proving the issue in the case at bar
rested upon the respondent.
Exceptions sustained. 7 *
CUBA R. CO. v. CROSBY.
'Supreme Court of the United States, 1912. 222 U. S. 473, 32 Sup. Ct. 132,
56 L. Ed. 274, 3S L. R. A. [N. S.] 40.)
Mr. Justice Holmes 75 delivered the opinion of the court:
This is an action for the loss of a hand through a defect in ma-
chinery, in connection with which the defendant in error, the plaintiff,
was employed. The plaintiff had noticed the defect and reported it,
and, according to his testimony, had been promised that it should be
repaired or replaced as soon as they had time, and he had been told
to go on in the meanwhile. The jury was instructed that if that was
what took place, the defendant company assumed the risk for a rea-
sonable time, and, in effect, that if that time had not expired, the plain-
tiff was entitled to recover. The jury found for the plaintiff. The
accident took place in Cuba, and no evidence was given as to the Cuban
law, but the judge held that if that law was different from the lex fori,
it was for the defendant to allege and prove it, and that as it had plead-
ed only the general issue, the verdict must stand. (C. C.) 158 Fed. 144.
The judgment was affirmed by a majority of the circuit court of
appeals. 95 C. C. A. 539, 170 Fed. 369.
The court below went on the ground that, in the absence of evidence
to the contrary, it would "apply the law as it conceives it to be, accord-
ing to its idea of right and justice; or, in other words, according to
the law of the forum." We regard this statement as too broad, and as
having been wrongly applied to this case.
It may be that, in dealing with rudimentary contracts or torts made
or committed abroad, such as promises to pay money for goods or
services, or battery of the person, or conversion of goods, courts would
assume a liability to exist if nothing to the contrary appeared. Par-
74 For the burden in fraud cases where the question of purchaser for value
without notice is iuvolved, see cases collected in note to Pelham v. Chatta-
hoochee Grocery Co., 8 L. R. A. (N. S.) 448 (190G). That the defense of pur-
chaser for value without notice of an equity is to be affirmatively established
by the one reiving on it, see Wright-Blodgett Co. v. L\ S., 236 U. S. 397. :::>
Sup. Ct. 339, 59 L. Ed. 637 (1915) ; Krueger v. U. S., 246 U. S. 69, 38 Sup.
Ct. 262, 62 L. Ed. 5S2 (1917).
" Part of opinion omitted.
88 THE COURT AND THE JURY (Ch. 1
rot v. Mexican C. R. Co., 207 Mass. 184, 34 L. R. A. (N. S.) 261, 93
N. E. 590. Such matters are likely to impose an obligation in all
civilized countries. But when an action is brought upon a cause aris-
ing outside of the jurisdiction, it always should be borne in mind that
the duty of the court is not to administer its notion of justice, but to
enforce an obligation that has been created by a different law. Slater
v. Mexican Nat. R. Co., 194 U. S. 120, 126, 48 L. Ed. 900, 902, 24
Sup. Ct. 581. The law of the forum is material only as setting
a limit of policy beyond which such obligations will not be enforced
there. With very rare exceptions the liabilities of parties to each
other are fixed by the law of the territorial jurisdiction within which
the wrong is done and the parties are at the time of doing it. Amer-
ican Banana Co. v. United Fruit Co., 213 U. S. 347, 356, 53 L. Ed. 826,
832, 29 Sup. Ct. 511, 16 Ann. Cas. 1047. See Bean v. Morris, 221 U.
S. 485, 486, 487, 55 L. Ed. 821, 823, 31 Sup. Ct. 703. That, and that
alone, is the foundation of their rights. * * *
We repeat that the only justification for allowing a party to recover
when the cause of action arose in another civilized jurisdiction is a
well-founded belief that it was a cause of action in that place. The
right to recover stands upon that as its necessary foundation. It is
part of the plaintiff's case, and if there is reason for doubt, he must
allege and prove it. The extension of the hospitality of our courts
to foreign suitors must not be made a cover for injustice to the de-
fendants of whom they happen to be able to lay hold.
In the case at bar the court was dealing with the law of Cuba, a
country inheriting the law of Spain, and, we may presume, continu- 1
ing it with such modifications as later years may have brought. There
is no general presumption that that law is the same as the common
law. We properly may say that we all know the fact to be otherwise.
Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co. (C. C.) 164
Fed. 869. Whatever presumption there is is purely one of fact, that
may be corrected by proof. Therefore the presumption should be lim-
ited to cases in which it reasonably may be believed to express the
fact. Generally speaking, as between two common-law countries, the
common law of one reasonably may be presumed to be what it is de-
cided to be in the other, in a case tried in the latter state. But a
statute of one would not be presumed to correspond to a staiute in
the other, and when we leave common-law territory for that where a
different system prevails, obviously the limits must be narrower still.
Savage v. O'Neil, 44 N. Y. 298; Crashley v. Press Pub. Co., 179 N. Y.
27, 32, 33, 71 N. E. 258, 1 Ann. Cas. 196; Aslanian v. Dostumian,
174 Mass. 328, 331, 47 L. R. A. 495, 75 Am. St. Rep. 348, 54 N. E. 845.
Even if we should presume that an employee could recover in Cuba
if injured by machinery left defective through the negligence of his
employer's servants, which would be going far, that would not be
enough. The plaintiff recovered, or, under the instructions stated at
the beginning of this decision, at least may have recovered, notwith-
Sec. 2) JUDICIAL NOTICE 89
standing his knowledge and appreciation of the danger, on the strength
of a doctrine the peculiarity and difficulties of which are elaborately
displayed in the treatise of Mr. Labatt. 1 Labatt, Mast. & S. chap.
22, esp. § 424. To say that a promise to repair or replace throws the
risk on the master until the time for performance has gone by, or that
it does away with or leaves to the jury what otherwise would be neg-
ligence as matter of law, is evidence of the great consideration with
which workmen are treated here, but cannot be deemed a necessary
incident of all civilized codes. It could not be assumed without proof
that the defendant was subject to such a rule.
There was some suggestion below that there would be hardship in
requiring the plaintiff to prove his case. But it should be remember-
ed that parties do not enter into civil relations in foreign jurisdictions
in reliance upon our courts. They could not complain if our courts
refused to meddle with their affairs, and remitted them to the place
that established and would enforce their rights. A discretion is as-
serted in some cases even when the policy of our law is not opposed
to the claim. The Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772.
The only just ground for complaint would be if their rights and lia-
bilities, when enforced by our courts, should be measured by a differ-
ent rule from that under which the parties dealt.
Judgment reversed. 78
SECTION 2.— JUDICIAL NOTICE
FOSTER v. LEONARD.
(Court of Queen's Bench, 1581. Cro. Eliz. 1.)
Attachment upon prohibition against the defendant, farmer of
the Parsonage of Sevenoak in Kent, for suing for tithes of great wood,
by the name of silva caedua, against the 45 Edw. 3. c. 3. The defend-
ant pleaded, that for 300 loads of the trees, they were of birch, of
which by law he ought to have tithes as silva caedua; and as to the
rest, which were of oak and elm, they were under the growth of twen-
ty years. Upon the first it was demurred in law, and upon the sec-
ond plea they were at issue. After argument upon the first point by
Clerk and Weeks of the one side, and by Fuller and Tanfield of the
other, it was adjudged for the defendant, that he shall have tithes of
birch; for birch is not such wood as the statute intends by the name
7 6 For common-law jurisdictions it will be presumed that the foreign com-/
mon law, but not the statutory law, is the same as the local law. Cherry v.
Sprague, 187 Mass. 113, 72 N. E. 456, 67 L. R. A. 33, 105 Am. St. Rep. 381)
(1904), annotated case.
See, also, article by Professor Kales, 19 H. L. R. 401, on "Presumptions
as to Foreign Law."
90 THE COURT AND THE JURY (Ch. 1
of gross bois, for it is intended of such wood as serveth for building,
and other uses of a high nature, and not only for fuel, as the nature
of birch is. And of oak and elm cut down before the age of twenty
years, tithes shall be paid ; for until that age they are not of such value
as the law regardeth for the purposes aforesaid. Therefore, as to the
birch, it was awarded he should have a consultation; he having en-
tered a non vult ulterius prosequi for the residue.
PAGE v. FAUCET.
(Court of Queen's Bench, 1587. Cro. Eliz. 227.)
Error of a judgment given in Lynne. The error assigned was, that
the judgment was given at a Court held there 16 February, 26 Eliz.
and this day was Sunday, see 29 Car. 2, c. 7, and it was so found by
the examination of the almanacks of that year. And it was ruled, that
this examination was sufficient, and a trial per pais was not necessary,,
although it were an error in fact. And the judgment was reversed.
JONES v. DAVERS.
(Court of Queen's Bench, 1596. Cro. Eliz. 496.)
The plaintiff, being register to the Bishop of Gloucester, brought
an action upon the case; and declares, that the defendant dixit et
propalavit haec Latina verba in prassentia diversorum, qui intellexe-
runt Romanam linguam, viz. "inimicus meus (innuendo the plaintiff)
is an extortioner," and divers other slanderous words, which were
clearly actionable. The defendant pleaded a vicious bar; and it was
thereupon demurred. But now Snagg for the defendant moved, that
upon this declaration the plaintiff ought not to recover. First, it is
supposed that the defendant spoke slanderous words in Latin, in
prsesentia diversorum who understood linguam Romanam, which well
may be ; for lingua Romana at this day intends the Italian tongue, and
not the Latin tongue. And then, if the words were spoken in the pres-
ence of those who understood not that tongue, the action clearly is
not maintainable ; for it was not slanderous where none understood it
And therefore it was adjudged in the Exchequer, where one spake
divers slanderous words in the Welsh tongue, the action lay not, with-
out averring them to be spoken in the presence of those who under-
stood the Welsh tongue. And of that opinion was the whole Court,
that if it might be intended that the Latin and Roman tongues dif-
fered (as at this time it seemeth they differ; for the Roman tongue
now used may be intended the Italian tongue), then the action lies
not. 77 * * *
77 Part of case is omitted.
Sec. 2) JUDICIAL NOTICE 91
MAKARELL v. BACHELOR.
(Court of Queen's Bench, 159S. Cro. Eliz. 5S3.)
Debt upon divers contracts; all for apparel : some for fustian suits,
some tor velvet and satin suits laced with gold lace, amounting to
£44. Whereof he was satisfied £4. The defendant_pleaded infancy.
The plaintiff replied, that he was one of the gentlemen of the chamber
to the Earl of Essex; and so it was for his necessary apparel. And it
was thereupon demurred. The Court hejd^that they were to adjudge
what was necessary apparel ; and such suits of satin and velvet cannot
beVecessary for an infant, although he be a gentleman, &c. It was
then prayed, that he might have judgment for those which were nec-
essary apparel. But the Court held, in regard he had acknowledged
satisfaction for £4. parcel, &c. and they did not know wherefore it
was payed, therefore he could not have judgment for any part; other-
wise he should have judgment for those contracts which were allowed
of, &c. Wherefore, &c. 78
7 8 Notice that at this time juries might decide on their own knowledge.
See Bushell's Case, ante, p. 7. For a modern statement, see the following
extract from the opinion of Willes, J., in Ryder v. Wombwell, L. R. 4 Exch.
32, (1S6S): "The Lord Chief Baron, in his judgment, questions whether
under any circumstances it is competent to the judge to determine as a
matter of law, whether particular articles are or are not to be deemed
necessaries suitable to the estate and condition of an infant, and whether,
if in any case the judge may so determine, his jurisdiction is not limited
to those cases in which it is clear and obvious that the articles in question
not merely are not, but cannot, be necessaries to any one of any rank, or
fortune, or condition whatever? This is an important principle which, if
correct, fully supports the judgment below, but we cannot assent to it.
We quite agree that the judges are not to determine facts, and therefore
where evidence is given as to any facts the jury must determine whether
they believe it or not. But the judges do know, as much as juries, what is
the usual and normal state of things, and consequently whether any par- ,
ticular article is of such a description as that it may be a necessary under
such usual state of tilings. If a state of thing exist (as well it may) so new
or so exceptional that the judges do not know of it, that may be proved as a
fact, and then it will be for the jury under a proper direction to decide the
case. But it seems to us that if we were to say that in every case the jury
are to be at liberty to find anything to be a necessary, on the ground that
there may be some usage of society, not proved in evidence and not known
to the Court, but which it is suggested that the jury may know, we should
in effect say that the question for the jury was whether it was shabby in
the defendant to plead infancy. We think the judges must determine wheth-
er the case is such as to cast on the plaintiff the onus of proving that the
articles are within the exception, and then whether there is any sufficient
evidence to satisfy that onus. In the judgment of Bramwell, B., in the
Court below, many instances are put well illustrating the necessity of such
a rule. It is enough for the decision of this case if we hold that such ar-
ticles as are here described are not prima facie necessary for maintaining
a young man in any station of life, and that the burden lay on the plaintiff
to give evidence of something peculiar making them necessaries in this
special case, and that he has given no evidence at all to that effect."
Notice the difference in results, where the judge decides on his own gen->
eral knowledge, as in the principal case, and where the jury are allowed
to decide on their general knowledge, as in certain instances indicated in the
note to Bushell's Case, ante, p. 7.
92 THE COURT AND THE JURY (Ch. 1
MacKELLY'S CASE.
(Court of King's Bench, 1612. 1 Rolle, Abr. 524.)
If a man should be indicted for the killing of a sergeant of Lon-
don while executing process of the King on the 18th day of Novem-
ber, between the hours of five and six, though in truth this time in
November is a part of the night, yet the court is not held ex officio to
take notice of this 79 (a prendre conusans de ceo), any more than in
a case of burglary, without the words, in nocte ejusdem diei, or noc-
tanter.
HODGES v. STEWARD.
(Court of King's Bench, 1692. 1 Salk. 125.)
In an action on the case on an inland bill of exchange brought by
the indorsee against the drawer, these following points were resolved:
1st. A difference was taken between a bill payable to J. S. or bear-
er, and J. S. or order; for a bill payable to J. S. or bearer is not as-
signable by the contract so as to enable the indorsee to bring an ac-
tion, if the drawer refuse to pay, because there is no such authority
given to the party by the first contract, and the effect of it is only to
discharge the drawee, if he pays it to the bearer, though he comes to
it by trover, theft, or otherwise. But when the bill is payable to J.
S. or order, there an express power is given to the party to assign, and
the indorsee may maintain an action. * * *
4thly. The plaintiff declared on a special custom in London for the
bearer to have this action. To which the defendant demurred, with-
out traversing the custom; so that he confessed it, whereas in truth
there was no such custom ; and the court was of opinion, that for this
reason judgment should be given for the plaintiff; for though the
Court is to take notice of the law of merchants as part of the law of
England, yet they cannot take notice of the custom of particular places ;
and the custom in the declaration being sufficient to maintain the ac-
tion, and that being confessed, he had admitted judgment against him-
self. 80 * * *
Judgment pro quer. 8x
7 9 See same notion applied in Amory v. McGregor, 12 Johns. (N. T.) 287
(1815), to the effect that an allegation that a contract was made in July.
1812, was not equivalent to an allegation that it was made during the War
of 1812.
so Tart of case omitted.
si In Argyle v. Hunt, 1 Strange, 1S7 (1719), it was said: "It is true, these
words appear to he spoke in London, but how does the custom of London
appear to us? There is nothing of that in the libel, and though we have
such a private knowledge of it, that upon motion we do not put the party
to produce an affidavit, because the other side never disputes it ; yet we
cannot judicially take notice of it, and if any body will insist on an affi-
SeC. 2) JUDICIAL NOTICE 93
HENRY v. COLE.
(Court of Queen's Bench, 1702. 2 Ld. Raym. 811.)
Upon issue joined in an action, the writ of nisi prius was award-
ed in the name of the King, and then entry was made upon the rec-
ord, that before the day in bank the King died; and at the day in
bank the writ is returned by the justices of the Queen. And Mr.
Ward moved, that it did not appear, that the King died before the day
of nisi prius; and if not, the execution of the writ by the justices of
the Queen was erroneous. Sed non allocatur. For, per curiam, they
will take notice on what day the King died, which was the eighth of
March, and consequently before the twenty-seventh of April, which
was the day of nisi prius. And therefore the execution of the writ by
the justices of the Queen good. And judgment was given for the
plaintiff. See the late act of parliament.
DEYBEL'S CASE.
(Court of King's Bench, 1S21. 4 Barn. & Aid. 243.)
The prisoner, an impressed seaman, was brought up by virtue of
a writ of habeas corpus, directed to the admiral of the fleet at Chat-
ham. The return to the writ stated, that, on the 28th November, 1820,
a certain foreign smuggling vessel, called the George, of Flushing, on
board of which were divers, to wit, six subjects of his majesty, be-
ing mariners, was found and discovered by the commander and crew
of his majesty's revenue cruiser, called The Griper, to have been and
to be within eight leagues of that part of the coast of Great Britain
called Suffolk, that is to say, within eight leagues of Orfordness, in
the county of Suffolk, having then and there on board thereof divers
large quantities of foreign spirits, tea, and tobacco. [The return fur-
ther stated that the prisoner was arrested on said vessel, etc. Lawes,
Sergt, objected to the return because it did not appear that the ship
was at the time within the limits fixed by 59 G. 3, c. 121, § 1.]
BaylEy, J. 82 It is quite true, that this court will take judicial notice
of the general division of the kingdom into counties, because they are
continually in the habit of directing their process to the sheriffs of
those counties, and because they are mentioned in a great variety of
acts of parliament. But still, I think, that the present return is in-
sufficient. In these cases, the greatest certainty is requisite; for the
court must see, distinctly, that the party who is brought up is justly
davit, we must have it in every case. It was never known, that the court
judicially take notice of private customs, but they are always specially re-
turned."
3 2 Opinions of Holroyd and Best, J J., omitted.
94 THE COURT AND THE JURY (Ch. 1
deprived of his liberty. Now the act of parliament says, that a party
may be properly detained in custody, if he is found on board a vessel
within four leagues of the coast between the North Foreland and
Beachy-Head, or within eight leagues of any other part of the coast.
This return does not follow the words of the act of parliament, but
states, that the vessel was discovered, not within eight leagues of the
coast of the county of Suffolk, but within eight leagues of a place in
a part of the coast called Suffolk. Now I cannot say, judicially, that
there is no place on the coast between the North Foreland and Beachy-
Head, which is called Suffolk, and therefore, if it had stopped there,
it seems to me, that this return would have been insufficient. But it
is said, that there is an additional averment, stating, that the vessel was
discovered within eight leagues of Orfordness, in the county of Suf-
folk. I have before said, that this court will take judicial notice of
the general divisions of counties, but that cannot be extended to the
particular parts of counties and their local situation. We know very
well, that there are many parts of counties separated from the general
body of the county. There is a part of the county of Durham which
is situated to the north of Northumberland, and so the parish of
Creyke, belonging to the same county, is surrounded by the North
Riding of Yorkshire ; and there are many other parts of other coun-
ties similarly situated. The court, therefore, cannot judicially know,
whether Orfordness, which is averred to be part of the county of
Suffolk, may not be an isolated part of it, situated on the coast be-
tween the North Foreland and Beachy-Head ; and if so, there is noth-
ing on this return to show, that the vessel was discovered within the
limits mentioned in the act of parliament. The proper course would
have been, to have stated, negatively, that the vessel was found with-
in eight leagues of a part of the coast of Great Britain, not between
the North Foreland and Beachy-Head, to wit, within eight leagues of
Orfordness, in the county of Suffolk. The present return, however,
is insufficient, and the prisoner must be discharged.
The prisoner was discharged. 83
83 in Kearney v. King, 2 B. & A. 301 (1819), the same court refused to
take notice that there was but one Dublin, viz., that in Ireland. In Humph-
reys v. Budd, 9 Dowling, 1000 (1841), on a motion to set aside service of
process, the court refused to take notice that there was no such place as
Holborn in the county of Surrey. In Brun v. P. Nacey Co., 267 111. 353, 108
N. E. 301 (1915), the court required proof that ai point on a certain street
was within the city limits at a certain time.
Sec. 2) JUDICIAL NOTICE 95
KING v. GALLUN et al.
(Supreme Court of the United States, 18S3. 109 U. S. 99, 3 Sup. Ct. 85,
27 L. Ed. S70.)
Woods, J. 84 We are of opinion that the patent of complainant does
not describe a patentable invention. The claim is for an article of
manufacture, to-wit, a bale of plasterers' hair consisting of several
bundles inclosed in bags, and compressed and secured to form a pack-
age. It is evident that the patent does not cover any improvement
in the quality of the hair. Its qualities are unchanged. It does not
cover the packing of the hair into parcels, or the size, shape, or weight
of the parcels, nor the compression of the parcels separately. Nor
does it cover the material of the bags which constitute the outer cov-
ering of the parcels. Complainant claims none of these things as se-
cured by his patent. The packing of hair and other articles in par-
cels of the same shape, size, and weight, and the compression of the
several parcels, has from time immemorial been in common use. Nei-
ther does complainant contend that his patent covers a single parcel or
package of hair. All, therefore, that the patent can cover is simply an
article of manufacture resulting from the compression and tying to-
gether in one bale of several similar parcels or packages of plasterers'
hair. The object of this invention is thus set out in the specification :
"For the convenience of the trade" — that is to say, to enable the
retail dealer more easily to parcel out the hair in quantities to suit his
customers — "I propose to form the hair in small bundles of one bushel
each, and with several bundles into a bale of convenient size for trans-
portation." The invention and the object to be accomplished by it are
thus seen to be contained within narrow limits.
In deciding whether the patent covers an article, the making of
which requires invention, we are not required to shut our eyes to mat-
ters of common knowledge, or things in common use. Brown v. Piper,
91 U. S. 43, 23 L. Ed. 200; Terhune v. Phillips, 99 U. S. 592, 25 L.
Ed. 293 ; Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6546.
The subdivision and packing of articles of commerce into small par-
cels for convenience of handling and retail sale, and the packing of
these small parcels into boxes or sacks, or tying them together in
bundles for convenience of storage and transportation, is as common
and well known as any fact connected with trade. This well-known
practice is applied, for instance, to fine-cut chewing and fine-cut
smoking tobacco, to ground coffee and spices, oatmeal, starch, farina,
desiccated vegetables, and a great number of other articles. This
practice having been common and long known, it follows that there
is nothing left for the patent of complainant to cover but the com-
pression of the bale formed of several smaller parcels. Can this be
dignified by the name of invention? When the contents of the small-
s' Statement omitted.
96 THE COURT AND THE JURY (Ch. 1
er parcels are such as to admit of compression into a smaller com-
pass, the idea of compressing the bale of the smaller parcels for trans-
portation and storage would occur to any mind. There is as little
invention in compressing a bale of several parcels of hair tied up to-
gether, as in compressing one large parcel of the same commodity.
But it is perfectly well known that the compression of several pack-
ages of the same thing into larger packages or bundles is not new,
and that it has long been commonly practiced. Packages of wooj,
feathers, and plug tobacco have been so treated. The case of plug
tobacco is a familiar instance. The plugs are formed so as to retain
their identity and shape, the outer leaves of the plug forming at the
same time a part of the plug as well as its covering. The plugs, after
being so put up as to preserve their identity under pressure, are, as
is well known, placed in a frame and subjected to pressure, and re-
duced to a smaller and compact mass, which is then boxed up and is
ready for market. This is done in part for convenience in handling,
transportation, and storage. When the box is opened by the retail
dealer, the plugs can be taken out separately and sold. This method
of treating plug tobacco would suggest to every one the compression
into a bale of distinct packages of plasterers' hair, and leaves no field
for invention in respect to the matter to which the patent of com-
plainant relates.
In view of the facts to which we have referred, which are of com-
mon observation and knowledge, we are of opinion that the article of
manufacture described in the specification and claim of the complain-
ant's patent does not embody invention, and that the patent is for
that reason void.
In support and illustration of our views, we refer to the following
cases decided by this court: Hotchkiss v. Greenwood, 11 How. 248,
13 L. Ed. 683; Phillips v. Page, 24 How. 167, 16 L. Ed. 639; Brown
v. Piper, 91 U. S. 37, 23 L. Ed. 200; Terhune v. Phillips, 99 U. S.
592, 25 L. Ed. 293 ; Atlantic Works v. Brady, 107 U. S. 192, 2 Sup.
Ct. 225, 27 L. Ed. 438; Slawson v. Grand Street, etc., R. Co., 107
U. S. 649, 2 Sup. Ct. 663, 27 L. Ed. 576.
The patent of complainant cannot be sustained by the authority of
the case of Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 23
h. Ed. 952, where the court said: "The invention is a product or
manufacture made in a defined manner. It is not a product alone,
separate from the process by which it is created." In that case the
invention was the product of a new process applied to old materials.
In this case it is the product of an old process applied to old materials.
Judgment affirmed. 815
so See, also, Brown v. Piper, 91 U. S. 37, 23 L. Ed. 200 (1S75), cold storage
process; Phillips v. Detroit, 111 U. S. 604, 4 Sup. Ct. 5S0, 28 L. Ed. 532
(1884), paving process.
Compare Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, 45 L. Ed.
224 (1900), where the same court refused to take notice that cigarettes
were particularly harmful.
Sec. 2) JUDICIAL NOTICE 97
COMMONWEALTH v. MARZYNSKI.
(Supreme Judicial Court of Massachusetts, 1SS9. 149 Mass. 68, 21 N. E. 228
Complaint on the Pub. Sts. c. 98, § 2, alleging that the defendant,
at Boston, on July 22, 1888, that day being the Lord's day, "did keep
open his shop there situate, and numbered one hundred and four in
Eliot street, for the purpose of doing business therein ; the same not
being then and there works of necessity or charity."
At the trial in the superior court, before Dewey, J., the government
called several witnesses, showing that the defendant was a tobacconist ;
that his shop was at the corner of Eliot street and Tremont street, in
Boston ; and that he kept his shop open, and made a sale of cigars and
tobacco, between the hours of eleven o'clock in the forenoon and four
o'clock in the afternoon of Sunday, July 22, 1888, that day being the
Lord's day. The defendant contended that he had a right to keep his
shop open on Lord's day for thepurpose of selling tobacco and cigars,
and called Dr. F. A. Harris, and, after qualifying him as an expert,
asked him numerous questions as to whether or not tobacco and cigars,
or either of them, were drugs or medicines ; and as to whether they
had any medicinal effect upon the human system ; or whether, if used
for pleasurable purposes, that fact deprived them of medicinal effect ;
or whether the fact that a drug is thus used for a pleasurable purpose
makes it less a drug. The judge excluded all of these questions ; and
the defendant excepted.
The defendant offered in evidence the United States Dispensatory,
for the purpose of showing the medicinal effects of tobacco as therein
described ; but the judge excluded the evidence, and the defendant
excepted.
The defendant then called one Benatuille, and, after qualifying him
as an expert in the manufacture of cigars, proved by him that a cigar
is made of leaf tobacco.
The jury returned a verdict of guilty, and the defendant alleged ex-
ceptions. 88
Knowlton, J. The defendant was prosecuted for having kept his
shop open upon the Lord's day for the purpose of doing business
therein. The evidence showed that he was a tobacconist, and that he
kept his shop open, and made a sale of tobacco and cigars, on the day
named in the complaint. We understand this sale to have included
tobacco and cigars in a single transaction. The defendant did not
contend at the trial "that he kept, or had a right to keep, his shop
open on the Lord's day for any other purpose than that of selling
tobacco and cigars." The jury were instructed, in substance, that
keeping one's shop open to sell cigars on the Lord's day would sub-
so Statement condensed.
II I NT. i : V.— 7
98 THE COURT AND THE JURY (Cll. 1
ject him to conviction of the offense named in this complaint, and the
principal question in the case is whether that instruction was correct.
Under the instruction the jury must have found that the defendant's
purpose was to sell cigars, and in this aspect of the case the evidence
offered in regard to tobacco was immaterial. The act complained of
was keeping open the shop, not making the sale,' and one question
arises under St. 1887, c. 391, §• 2, which amends Pub. St. c. 98, § 2,
by adding a provision that nothing in this last section shall be held
to prohibit certain named acts and kinds of business, among which is
"the retail sale of drugs and medicines." If, upon the facts of this
case, keeping the defendant's shop open to sell cigars was merely
keeping it open to sell drugs and medicines, the instruction was erro-
neous ; but if, as a matter of law, it was keeping it open f Or a purpose
other than that of selling drugs and medicines, the instruction was
correct.
Ordinarily, whether a substance or article comes within a given de-
scription is a question of fact ; but some facts are so obvious and
familiar that the law takes notice of them, and receives them into its
own domain. If the proof had been that the shop was kept open for
the purpose of 'selling guns or pistols, it would hardly be contended
that the judge might not properly have ruled that the sale of these ar-
ticles was not a sale of drugs or medicines. The court has judicial
knowledge of the meaning of common words, and may well rule that
guns and pistols are not drugs or medicines, and may exclude the opin-
ion of witnesses who offer to testify that thev are. Com. v. Peck-
ham, 2 Gray, 514; Com. v. Crowley, 145 Mass. 430, 14 N. E. 459.
Cigars are manufactured articles familiar to everybody. The ma-
terials of which they are composed are carefully prepared and put into
form, until they lose their original character as mere materials, and
become articles of commerce, known by a new name and adapted to
a particular use. We are of opinion that cigars sold by a tobacconist
in the ordinary way are not drugs or medicines, within the meaning of
those words as used in the statute. Many things which are not in
themselves medicines may be put to a medicinal use, and when so used
they may become medicines. But there was no evidence in the pres-
ent case that the cigars which the defendant sold were used or were
intended to be used as a medicine, or that the defendant kept his shop
open for the purpose of furnishing cigars to be used medicinally. The
instruction must therefore be construed in its application to evidence
of an ordinary sale of cigars, and, so applied, we are of opinion that
it was correct.
In their application to the evidence of such a sale all the questions
to the witness Harris were immaterial and incompetent. The record
in the case of Com. v. Burwell was not between the parties now con-
tending, and was rightly excluded. The court rightly ruled that the
United States Dispensatory could not be put in evidence. Com. v.
Sec. 2) JUDICIAL NOTICE 99
Brown, 121 Mass. 69. The instructions to the jury in regard to their
duty to follow the charge of the judge in matters of law were in ac-
cordance with the rule laid down in Com. v. Anthes, 5 Gray, 185,
which has ever since been the settled law of this commonwealth.
We find no error in any other of the rulings or refusals to rule set
out in the bill of exceptions. Exceptions overruled. 87
PEOPLE v. MAYES.
(Supreme Court of California, 1S96. 113 Cal. 618, 45 Pac. 860.)
Harrison, J. 88 The appellant was convicted of felony, in stealing
a blue steer, and has appealed from the judgment thereon, and from
an order denying a new trial. The evidence connecting him with the
taking of the animal was sharply conflicting, and testimony impeaching
nearly all of the witnesses who testified on either side of the case was
presented to the jury. Under these circumstances, the sufficiency of
the evidence to sustain the verdict is not open for examination. * * *
A witness on behalf of the defendant testified that on the night when
the animal was taken he met Ruiz, one of the witnesses for the pros-
ecution, driving a dark-colored animal; that the moon was up and
shining, and the night was pretty light. On being asked what time of
the night it was, he said that he was unable to tell but thought that it
was "along about ten o'clock, somewheres about there, I suppose," and
at another time he said that it was "betwixt nine and ten, I suppose."
The court instructed the jury, as a matter of judicial knowledge, that
the moon on that night rose at 10:57 p. m. It does not appear that
any evidence upon that point had been offered at the trial, nor was
such evidence necessary. People v. Chee Kee, 61 Cal. 404. Section
1875, subd. 8, Code Civ. Proc, declares that courts take judicial knowl-
edge of "the laws of nature, the measure of time, and the geographical
conditions and political history of the world," and that "the court may
resort for its aid to appropriate books or documents of reference" ; and
section 2102, Code Civ. Proc, declares, "Whenever the knowledge of
the court is by this Code made evidence of a fact, the court is to de-
clare such knowledge to the jury, who are bound to adopt it." "Judi-
cial notice will be taken of the time the moon rises and sets on the
several days of the year, as well as oi the successsion of the seasons,
the difference of time in different longitudes, and the constant and in-
variable course of nature." Case v. Perew, 46 Hun, 57. See, also,
« See, also, State v. Main, 69 Conn. 123, 37 Atl. 80, 36 L R. A. 623, 61
Am. St. Rep. 30 (1897), where, under a statute dealing with "peach yellows."
the court refused to submit the nature of such disease as a question ol
fact to the jury.
»« Part of opinion omitted.
100 THE COURT AND THE JURY (Cll. 1
State v. Morris, 47 Conn. 179; Munshower v. State, 55 Md. 11, 39
Am. Rep. 414.
Upon his motion for a new trial the appellant assigned the above
instruction as error, and, in support thereof, presented an affidavit by-
Lewis Swift that on that night the moon rose at 10:35 p. m. No prec-
edent in support of the practice of showing by affidavits that the court
erred in instructing a jury upon matters within its judicial knowl-
edge has been cited to our attention, and we are of the opinion such
practice ought not to prevail. The judicial notice which courts take
of matters oT fact embraces those facts which are within the common
knowledge of all, or are of such general notoriety as to need no evi-
dence in their support, and also those matters which do not depend
/^ upon the weight of conflicting evidence, but are in their nature fixed
CA and uniform, and may be determined by mere inspection, as of a pub-
| lie document, or by demonstration, as in the calculations of an exact
science. These matters may not be within the personal knowledge of
the judge who presides over the court, but, if a knowledge of them is
necessary for a proper determination of the issues in the case, he is
authorized to avail himself of any source of information which he may
deem authentic, either by inquiring of others, or by the examination
of books, or by receiving the testimony of witnesses. Rogers v. Cady,
104 Cal. 290, 38 Pac. 81, 43 Am. St. Rep. 100. As this knowledge of
the court does not depend upon the weight of evidence, and is not to be
determined upon a consideration of the credibility of witnesses, it is
evident that, when the court has stated to the jury a fact of which it
takes judicial knowledge, the correctness of such statement is not to
be controverted or set aside on an appeal by affidavits which are mere-
ly contradictory of the correctness of such statement.
The appellate court takes judicial notice of the fact, in the same man-
ner as does the trial court ; but, in the absence of any personal knowl-
edge of the fact by the individual members of the court, the fact as
stated by the court below will be assumed to be correct, and the ap-
pellant will be required to show affirmatively that the court erred in
its statement of it. The record does not show the means or sources
from which the court obtained its knowledge of this fact, — whether
from information derived from others, or from books, or by means of
an individual calculation; and, although it appears from an affidavit
on behalf of the appellant that the times of the rising of the moon, in
the Family Christian Almanac, are correct, and that the ordinary al-
manacs found in drug stores, and sometimes called "patent-medicine
almanacs," are not reliable, the time stated in either of these alma-
nacs at which the moon rose on that night is not given, nor does it ap-
pear that the court below referred to either of them. While it is said
in the affidavit of Swift that his statement is "made from accurate,
correct, and reliable astronomical observations, calculations, and data,"
he does not state that he made the calculations, or the person by whom
Sec. 2) JUDICIAL NOTICE 101
they were made ; so that his affidavit is in reality of no higher grade
than hearsay, and is insufficient to overcome the presumption of the
correctness of the court's statement to the jury. * * *
Judgment affirmed.
80
LAZIER v. WESTCOTT.
(Court of Appeals of New York, 1862. 26 N. Y. 146, 82 Am. Dec 404.)
DaviEs, J- 90 This is an action upon a judgment recovered in the
Court of Common Pleas of Upper Canada against this defendant by
this plaintiff. The cause was tried before a referee, who gave judg-
ment for the plaintiff and judgment on his report to be affirmed at
General Term.
On the trial the plaintiff offered in evidence an exemplification of
the record of a judgment in the Court of Common Pleas of Upper
Canada, which was received under objection and exception. Numer-
ous interlineations, alterations and erasures appeared in the record,
but they all appeared to be marked or authenticated by the initials "L.
H.," being the initials of the name of the clerk, and said initials ap-
peared to be in the same handwriting as that of the signature of said
clerk. The defendant's counsel objected to the introduction of said
papers on the ground :
(1) That this government does not recognize the province named in
the record as one of the independent powers of the world, and that
it was not such in fact ; and that the evidence of the authority of
the officers acting must come from the government creating them.
(2) That the paper is not authenticated in the manner required by
law. * * *
I shall consider them in the order above enumerated. I do not read
our statute in reference to the exemplification of the records and ju-
dicial proceedings in any court in any foreign country as confining
the admission of the records only of such foreign country as shall
have been acknowledged by this government as one of the independ-
ent powers of the world, and with which we have diplomatic inter-
course. I think the obvious meaning of the statute is to admit the
records of any court of any foreign country, and it is quite imma-
terial whether such foreign country is one of the great powers of the
world, or one of minor importance and having a circumscribed extent.
The size of the country cannot alter the rule of evidence, and the rec-
s» In Munshower v. State, 55 Md. 11, 39 Am. Rep. 414 (1880), it was held
that an almanac was properly admitted to prove when the moon rose. In
State v. Morris, 47 Conn. 179 (1S79). it was said that there was no error in
admitting an almanac to show the time of sunset, because the court would
take notice of the fact. In Wilson v. Van Leer, 127 Pa. 371, 17 Atl. 1097, 14
Am. St. Rep. S54 (18S9), it was held proper to refer in argument to an aH
manac which had not been offered in evidence.
ao Part of opinion omitted.
102
THE COURT AND THE JURY
(Ch. 1
h
ords of a court of the Republic of San Marino are of equal validity
as those of the Empire of all the Russias. The only question is, does
the record come from a court of a foreign country? If so, and it is
properly authenticated, it is to be admitted as evidence under the provi-
sions of our Revised Statutes. 3 R. S. (5th ed.) 678, § 26.
The court will take judicial notice that the province of Upper Canada
is a foreign country, and forms no part of our own (Ennis v. Smith,
14 How. 430, 14 L. Ed. 472), that it has a government and courts, and
that those courts proceed according to the course of the common law.
The record produced was, therefore, the record of a court of a for-
eign country, and it is authenticated by the attestation of the clerk of
^^the court, with the seal 91 of the court annexed. There is also attached
the certificate of the chief justice of the court, that the person attesting
► such record is the clerk of the court, and that the signature of such
clerk is genuine. These papers are further authenticated by the certifi-
cate of the assistant secretary of state of said province, and by the
governor in chief of said province, having charge of the great seal of
said province, and which fact is attested by the affixing the great seal
to said certificate, and which of itself imports verity, under the au-
thority of which government said court is held, and which certificate
declares that such court is lawfully and duly constituted, and specifies
the general nature of its jurisdiction, and it also verifies the signature
of the clerk of such court, and the signature of the chief justice there-
of. It seems to me, therefore, that all the provisions of the statute
have been complied with, to authorize the reading of this record in
evidence in any court of this State. The referee, therefore, properly
admitted it to be read. If I am correct in these views they dispose of
the first and second objections of the defendant's counsel. * * *
Judgment affirmed.
STATE v. HORN.
(Supreme Court of Vermont, 1870. 43 Vt. 20.)
Peck, J. 92 The paper purporting to be a marriage certificate of a
marriage in the State of Pennsylvania, admitted against the objec-
tion of the respondent, was incompetent evidence, and ought to have
been excluded. It did not prove itself. Aside from the certificate
there was no evidence that there was any such man as Benjamin Jay
who was a justice of the peace, or that by the laws of Pennsylvania
a justice of the peace has authority to solemnize marriages. The case
8i It is frequently said that courts take notice of the seal of a foreign
notary certifying his protest of a foreign hill. Pierce v. Indseth; 10(5 U. S.
546, 1 Sup. Ct. 418, 27 L. Ed. 254 (1882). It is doubtful, however, whether
this means anything more than that the courts will presume the genuineness of
what purports to be a foreign notarial seal.
»2 Statement and part of opinion omitted.
Sec. 2) JUDICIAL NOTICE 103
states that the presiding judge stated to the jury, in his charge, that of
his own knowledge justices of the peace by the laws of Pennsylvania
had such authority, but that is not proof. The la ws of other States,
when material to the merits of a case, cannot be cstablisTiedLexcept by__
legal evidence, and ifstatute laws, they must be proved by t he pr oduc-
tTpnTorihe statute. If-a-jusTic^ of TrTe"peace has~such authority by
the laws"!JFPlmnsyTvairra, it is to be taken to exist by statute. *
Judgment reversed. 6
63
CITY OF WINONA v. BURKE.
(Supreme Court of Minnesota, 1876. 23 Minn. 254.)
Gilfillan, C. J. 94 The defendant was convicted in the court below
for the alleged violation of a city ordinance. On the trial no proof
of the ordinance was made, and the defendant moved to dismiss the
prosecution on that ground, which motion was denied. It is claimed
on behalf of the city that, because of Laws 1873, c. 68 — which pro-
vides that, when the "by-laws, ordinances, etc., of any city * * *
have been or shall hereafter be printed and published by authority of
the corporation, the same shall be received in evidence in all courts and
places without further proof" — the court will take judicial notice of
the existence of the ordinance, without proof. Such was not the in-
tention of the act, as is clear from its language, and does not affect
the necessity of proving the ordinance. Courts do not take judicial
notice of city ordinances. Garvin v. Wells, 8 Iowa, 286; Goodrich v.
Brown, 30 Iowa, 291. Such ordinances should be pleaded and proved.
Judgment reversed. 85
»3 An American court does not take notice of the laws of England since
the Revolution. Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397,
9 Sup. Ct. 469, 32 L. Ed. 7S8 (18S9). But notice will be taken of the law
formerly in force in territory now a part of the United States. United
States v. Perot, 98 U. S. 428, 25 L. Ed. 251 (1S78).
04 Statement omitted.
»6 The omission to prove an ordinance at the trial cannot be supplied by
proof in the appellate court. Porter v. Waring, 69 N. Y. 250 (1877), in which
the following reasons are given for the general rule: "If the court could
take judicial notice of the ordinances of a municipal corporation, it would
involve the consideration of all the numerous enactments, whether printed
or otherwise, which the common council have adopted which relate to the
subject of the controversy, and the existence of many of which might be
entirely unknown to the parties or their counsel. It would open the door in
many cases to mere conjecture, and involve an inquiry as to local enact-
ments, the time when they took effect, the priority of the same, and their
application to the case in litigation, which it would be difficult to dispose
of without proof, and which are not properly embraced within the ordinary
scope of judicial knowledge in the determination and trial of cases,"
\
^ ^Jlt^AX .<v*~sX L\y^
104 THE COURT AND THE JURY (Ch. 1
LANE v. SARGENT.
(Circuit Court of Appeals of the United States, First Circuit, 1914. 217 Fed.
237, 133 C. C. A. 231.)
Bingham, Circuit Judge." The plaintiff, Sargent, a citizen of the
state of New Hampshire, brings this action - against the defendant,
Lane, a citizen of the commonwealth of Massachusetts, in the District
Court of the United States for the District of New Hampshire, to re-
cover damages for injuries received on August 4, 1912, by being run
into by an automobile operated by the defendant. The accident took
place while the plaintiff was crossing Main street, in Salisbury, Mass.
There was a trial by jury and a verdict for the plaintiff. The case is
now here on defendant's bill of exceptions, and the errors assigned
are to the exclusion of certain evidence offered by the defendant and
the refusal of the judge to give certain requests for rulings.
The accident having occurred in Massachusetts, and the law of the
road of that state being a material point in the case, the defendant of-
fered to show what the law of Massachusetts on that subject was by
introducing in evidence three decisions of the Massachusetts Supreme
Judicial Court, as reported in Galbraith v. West End St. Ry. Co., 165
Mass. 581, 43 N. E. 501, Scannell v. Boston Elevated Ry. Co., 176
Mass. 173, 57 N. E. 341, and Commonwealth v. Horsfall; 213 Mass.
232. 100 N. E. 362, Ann. Cas. 1914A, 682. The evidence was exclud-
ed, and the defendant excepted. The trial court, in excluding the evi-
dence, made the following ruling:
"I think this question is a question of law for the court to pass upon,
and the court is very glad to have any citation of Massachusetts law
submitted to the court, and the court will instruct the jury upon what
the Massachusetts law is. Upon that assumption, with this view of the
law, the court will not allow the opinions of the Massachusetts court
which have been called to its attention to be read to the jury."
The defendant contends that the law of Massachusetts, where the
accident occurred, is the law of a foreign jurisdiction, and must be
proved as a fact; that the court could not take judicial cognizance of
it. This contention cannot be sustained. In Mills v. Green, 159 U.
S. 651, 657, 16 Sup. Ct. 132, 134 (40 L. Ed. 293), Mr. Justice Gray, in
delivering the opinion of the court, said :
"The lower courts of the United States, and this court, on appeal
from their decisions, take judicial notice of the Constitution and pub-
lic laws of each state of the Union. Owings v. Hull, 9 Pet. 607, 625
[9 L. Ed. 246] ; Lamar v. Micou, 112 U. S. 452, 474 [5 Sup. Ct. 221
28 L. Ed. 751] ; Id., 114 U. S. 218, 223 [5 Sup. Ct. 857, 29 L. Ed. 94]
Hanlev v. Donoghue, 116 U. S. 1, 6 [6 Sup. Ct. 242. 29 L. Ed. 535]
Fourth National Bank v. Francklyn, 120 U. S/747, 751 [7 Sup. Ct
• 8 Part of opinion omitted.
Sec. 2) JUDICIAL NOTICE 105
757, 30 L. Ed. 825] ; Gormley v. Bunvan, 138 U. S. 623 [11 Sup. Ct.
453, 34 L. Ed. 1086] ; Martin v. Baltimore & Ohio Railroad, 151 U.
S. 673, 678 [14 Sup. Ct. 533, 38 L. Ed. 311]."
And in Hanley v. Donoghue, 116 U. S. 1, 6, 6 Sup. Ct. 242, 245 (29
L. Ed. 535), the same Justice, in speaking for the court, said:
"In the exercise of its general appellate jurisdiction from a lower
court of the United States, this court takes judicial notice of the laws
of even- state of the Union, because those laws are known to the
court below as laws alone, needing no averment or proof. * * *
"But on a writ of error to the highest court of a state, in which the
revisory power of this court is limited to determining whether a ques-
tion of law depending upon the Constitution, laws, or treaties of the
United States has been erroneously decided by the state court upon the
facts before it — while the law of that state, being known to its courts
as law, is of course within the judicial notice of this court at the hear-
ing on error — yet, as in the state court the laws of another state are
but facts, requiring to be proved in order to be considered, this court
does not take judicial notice of them, unless made part of the record
sent up, as in Green v. Van Buskirk, 7 Wall. 139 [19 L. Ed.
109]. * * *
"Where by the local law of a state (as in Tennessee, Hobbs v.
Memphis & Charleston Railroad, 9 Heisk. 873) its highest court takes
judicial notice of the laws of other states, this court also, on writ of
error, jmight take judicial notice of them."
See Martin v. Baltimore & Ohio Railroad, 151 U. S. 673. 678, 14
Sup. Ct. 533, 38 L. Ed. 311.
The Pawashick, 2 Low. 142, Fed. Cas. No. 10,851, a case relied
upon by the defendant in support of his contention, is not in point.
There the question was whether a federal court would take judicial
notice of the law of a foreign country or it should be proved as a
fact. * * *
Judgment affirmed. 97
UNDERHILL v. HERNANDEZ.
(Supreme Court of the United Stales. 1897. 16S U. S. 250. 18 Sup. Ct. S3.
42 L. Ed. 456.)
George F. Underhill was a citizen of the United States, who had
constructed a waterworks system tor the city of Bolivar, under a
contract with the government, and was engaged in supplying the place
with water ; and he also carried on a machinery repair business. Some
time after the entry of Gen. Hernandez, Underhill applied to him, as
»" The courts of the several states take notice of the laws of the United
States. Gooding v. Morgan. 70 111. 275 (1873); Eastwood v. Kennedy, 44
Md. 5G3 (1S7G); Louisville & N. Ry. Co. v. Scott, 133 l'v. 724, 118 S. W.
990. 19 Ann. Cas. P.02 (1909).
106 THE COURT AND THE JURY (Ch. 1
the officer in command, for a passport to leave the city. Hernandez
refused this request, and requests made by others in Underhill's be-
half, until October 18th, when a passport was given, and Underhill
left the country.
This action was brought to recover damages for the detention caus-
ed by reason of the refusal to grant the passport, for the alleged con-
finement of Underhill to his own house, and for certain alleged as-
saults and affronts by the soldiers of Hernandez's army.
The cause was tried in the Circuit Court of the United States for
the Eastern District of New York, and on the conclusion of plaintiff's
case the Circuit Court ruled that upon the facts plaintiff was not en-
titled to recover, and directed a verdict for defendant, on the ground
that "because the acts of defendant were those of a military com-
mander, representing a de facto government in the prosecution of a
war, he was not civilly responsible therefor." Judgment having been
rendered for defendant, the case was taken to the Circuit Court of
Appeals, and by that court affirmed, upon the ground "that the acts
of the defendant were the acts of the government of Venezuela, and
as such are not properly the subject of adjudication in the courts of
another government." 26 U. S. App. 573, 13 C. C. A. 51, and 65
Fed. 577. Thereupon the cause was brought to this court on cer-
tiorari. 98
Mr. Chief Justice Fuller. Every sovereign state is bound to re-
spect the independence of every other sovereign state, and the courts
of one country will not sit in judgment on the acts of the government
of another, done within its own territory. Redress of grievances by
reason of such acts must be obtained through the means open to be
availed of by sovereign powers as between themselves.
Nor can the principle be confined to lawful or recognized govern-
ments, or to cases where redress can manifestly be had through public
channels. The immunity of individuals from suits brought in foreign
tribunals for acts done within their own states, in the exercise of gov-
ernmental authority, whether as civil officers or as military com-
manders, must necessarily extend to the agents of governments rul-
ing by paramount force as matter of fact. Where a civil war prevails
(that is, where the people of a country are divided into two hostile par-
ties, who take up arms and oppose one another by military force), gen-
erally speaking, foreign nations do not assume to judge of the merits
of the quarrel. If the party seeking to dislodge the existing govern-
ment succeeds, and the independence of the government it has set up
is recognized, then the acts of such government, from the commence-
ment of its existence, are regarded as those of an independent nation.
If the political revolt fails of success, still, if actual war has been
waged, acts of legitimate warfare cannot be made the basis of individ-
ual liability. United States v. Rice, 4 Wheat. 246, 4 L. Ed. 562;
98 Statement condensed and part of opinion omitted.
Sec. 2) JUDICIAL NOTICE 107
Fleming v. Page, 9 How. 603, 13 L. Ed. 276; Thorington v. Smith,
8 Wall. 1, 19 L. Ed. 361 ; Williams v. Bruffy, 96 U. S. 176, 24 L.
Ed. 716; Ford v. Surget, 97 U. S. 594, 24 L. Ed. 1018; Dow v. John-
son, 100 U. S. 158, 25 L. Ed. 632; and other cases.
Revolutions or insurrections may inconvenience other nations, but
by accommodation to the facts the application of settled rules is read-
ily reached. And, where the fact of the existence of war is in issue
in the instance of complaint of acts committed within foreign terri-
tory, it is not an absolute prerequisite that that fact should be made
out by an acknowledgment of belligerency, as other official recognition
of its existence may be sufficient proof thereof. The Three Friends,
166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897.
In this case the archives of the state department show that civil war
was flagrant in Venezuela from the spring of 1892, that the revolution
was successful, and that the revolutionary government was recognized
by the United States as the government of the country; it being, to
use the language of the secretary of state in a communication to our
minister of Venezuela, "accepted by the people, in the possession of
the power of the nation, and fully established."
That these were facts of which the court is bound to take judicial
notice, and for information as to which it may consult the depart-
ment of state, there can be no doubt. Jones v. United States, 137 U.
S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Mighell v. Sultan of Jahore
[1894] 1 O. B. 149.
It is idle to argue that the proceedings of those who thus triumphed
should be treated as the acts of banditti, or mere mobs.
We entertain no doubt, upon the evidence, that Hernandez was
carrying on military operations in support of the revolutionary par-
ty. It may be that adherents of that side of the controversy in the
particular locality where Hernandez was the leader of the movement
entertained a preference for him as the future executive head of the
nation, but that is beside the question. The acts complained of were
the acts of a military commander representing the authority of the
revolutionary party as a government, which afterwards succeeded, and
was recognized by the United States. We think the circuit court of
appeals was justified in concluding "that the acts of the defendant
were the acts of the government of Venezuela, and as such are not
properly the subject of adjudication in the courts of another govern-
ment." * * *
Judgment affirmed. 00
»o The same court has taken notice of the American occupation of Cuba
(Xeely v. Heukel, ISO U. S. 109, 21 Sup. Ct. 302, 45 L. Ed. 448 [1001]), and
of the great war in Europe (United States v. Hamtrarg-Amerikanische Pacfc-
et-Fahrt Actien Gesellschaft Co., 239 U. S. 466, 30 Sup. Ct. 212, GO L. Ed.
387 L1916]).
And so that the United States had recognized the Carranza government
as the de facto, and later as the de jure, government of Mexico. Oetjen v.
Central Leather Co., 24G U. S. 297, 38 Sup. Ct. 309, 02 L. Ed. 726 (1918).
108 THE COURT AND THE JURY (Ch. 1
SECTION 3.— ADMISSION AND EXCLUSION OF
EVIDENCE x
|r% THE KING v. STONE.
(Court of King's Bench, 1796. 6 Term R. 527.)
' The prisoner was tried at the bar of this court on the 28th and 29th
days of January in this term upon an indictment for high treason
on two branches of the 25 Ed. 3, st. 5, c. 2, for compassing the death
of the king, and for adhering to his enemies. The overt acts were the
i Where the admissibility of any particular item of evidence depends on
the existence of some matter of fact, such fact must normally be established
before the evidence in question is offered, though in a proper case the court
may in its discretion admit the evidence upon the undertaking of counsel to
supply the preliminary proof later.
H The most serious objection to varying the natural order in such cases is
that, in the event of a failure to establish the preliminary fact, the evidence
already admitted may have a prejudicial effect, which in many cases is
difficult, if not impossible, to counteract by any direction withdrawing it
• from the consideration of the jury.
A different situation is presented where the proof of a proposition involves
several steps or a number of subordinate facts, no one of which is of any
importance except in connection with the others.
Obviously a number of facts cannot be proved simultaneously. Hence in
such a case no particular preliminary showing can be required, because, no
matter with what fact the proof begins, the same objection would apply ;
it is not sufficient unless there is proof of additional facts. This was very
clearly pointed out by Caton, J., in Rogers v. Brent, 10 111. (5 Oilman) 573,
50 Am. Dec. 422 (1849): "* * * The question is, not whether it was
sufficient of itself to make out the defense, but would it aid to make out the
case? Would it tend to prove the defense? Most cases have to be proved
by a succession of distinct facts, neither of which, standing alone, would
amount to anything, while all taken together form a connected chain, and
establish the issue, and from necessity a party must be allowed to present
his case in such detached parts as the nature of his evidence requires. It
would be no less absurd than inconvenient, when proof is offered in its prop-
er order, of one necessary fact, to require the party to go on and offer to
prove at the same time all the other necessary facts to make out the case.
Such a practice would embarrass the administration of justice, and prove
detrimental to the rights of parties."
Where the connection is doubtful, or prejudice is likely, the court may,
and should, make such a preliminary investigation as may be necessary.
The course which may well be followed in such cases is that suggested bv
Ferris, J., in State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D,
191 (1911): "In a case like this, involving a large amount of testimony
concerning other crimes, which would occupy days in presentation, it would
be impracticable to give a preliminary hearing to all the details. In such
case the court may properly be guided by the offer of proof and by such
testimony as can be conveniently presented; enough to satisfy the court
that the evidence is relevant and of sufficient weight to authorize its sub-
mission to the jury. The great danger that evidence of other crimes, even
if it fails to establish them, and even if it is by an instruction withdrawn
from the jury, will prejudice the jury against the defendant, and obscure
their judgment upon the real issues before them, suggests the propriety of
determining in advance of its introduction that such testimony is compe
tent."
Sec. 3) ADMISSION AND EXCLUSION OF EVIDENCE 109
same in each count, being eleven in number ; but that to which the evi-
dence chiefly applied was the conspiring with John Hurford Stone
William Jackson and others unknown to collect the intelligence within
this kingdom and the kingdom of Ireland of the disposition of the
king's subjects in case of an invasion of Great Britain or Ireland, and
to communicate such intelligence to the persons exercising the pow-
ers of government in France, enemies of our lord the king, for their
aid, assistance, direction, and instruction, in their conduct and pros-
ecution of the war, &c.
Evidence having been given to connect the prisoner with John Hur-
ford Stone who was during the transaction resident in France and
domiciled there and Jackson, and to shew that they were engaged in
a conspiracy for the above stated purpose ; lord Grenville the secretary
of state for the foreign department was called to prove that a letter of
Jackson's containing treasonable information had been transmitted to
him from abroad, but in a confidential way, which made it impossible
for him to divulge by whom it was communicated.
Adair, Serjt. and Erskine objected, on behalf of the prisoner, to the
reading of this letter as it had not been proved to have come to the
hands or knowledge of the prisoner ; and insisted that nothing could
be received to affect the prisoner but his own acts.
The Attorney General answered that, as the overt act charged was
a conspiracy of which proof was before the court, the act of each con-
spirator in the prosecution of such conspiracy was evidence against
all: that it had been so determined by Buller, J., in the case of The
King v. Bowes and others 30th May 1787, who were convicted for a
conspiracy to carry away lady Strathmore; and that the same prin-
ciple had been also settled in The King v. Harday, and The King \
Tooke, at the Old Bailey in 1794. And that where several were en-
gaged in the same design, nothing was more common than to receive
the acts of one against another, though not present ; as in the cases of
murder and burglary, the acts of him who actually killed the person
or broke open the house were evidence against those who at a distance
were employed watching to guard against any interruption.
Lord Kenyon, C. J., said he had no doubt but that there was suffi-
cient evidence to connect Jackson and the prisoner : but that as to the
evidence now offered he should have great doubts of its admissibility,
if it had not been sanctioned by the respectable authority of the judges
who sat upon the late trials for treason at the Old Bailey ; the determi-
nation of that court however had great weight with him ; and the in-
stances in murder and burglary alluded to went a great way to remove
his doubts. That scruples in a case of blood might induce a doubt,
when on further consideration there would be no doubt.
Ashhurst, J., thought the, evidence admissible.
Grose, J. iTT a number of persons meet towards one common end,
the act of eaclv~is evidence against all concerneST
110
THE COURT AND THE JURY
(Ch. 1
Lawrence, J., said that in Tooke's case he had alluded to the cases
of lord Stafford and lord Lovatt to shew that in order to prove a con-
spiracy the acts of the different conspirators as connected with and
in conformity with his own were admissible evidence, though acts to
which the prisoner was no direct party, and that in this case evidence
having been given sufficient for the jury to consider whether the pris-
oner was not one engaged in a conspiracy for treasonable purposes
with Jackson, if they were of that opinion, Jackson's acts done in pur-
suance of that conspiracy were in contemplation of law the acts of the
prisoner.
The evidence was received. This was on the first-day of the trial.
Lord Kenyon, C. J. 2 The next morning said he had thought of
the point, and was satisfied it had been rightly decided by the court.
* * *
Verdict, not, guilty. 8
■4
THOMAS v. JENKINS.
(Court of King's Bench, 1S37. 6 Adol. & El. 525.)
Replevin for taking cattle. Avowry and cognizances, averring the
cattle to have been distrained damage-f.easant. Pleas in bar, traversing
the title, as pleaded, to the place in which, &c. Issues thereon. On
the trial before Coleridge, J., at the Glamorganshire Spring assizes,
1837, the material question was as to the boundary dividing the estate
which comprises the locus in quo from another estate. An old wit-
ness, who was called for the defendant, swore that he had kept cattle
on the first mentioned estate, and turned off those of other people;
that his father at that time was tenant of the estate; that his father
and brother told him what line of boundary he was to keep, and that
he had acted accordingly in keeping the boundary; that his father
and brother were overseers of the hamlet of Glyncorrwg; and that
the boundary of the estate was the .same as that of the hamlet. He
was then asked whether he had heard from old persons, since dead,
what was the boundary of the hamlet. The question was objected to,
as an attempt to prove the limits of a private estate by reputation.
Coleridge, J., held the evidence admissible; and the witness then
stated what he had heard as to the boundary of the hamlet ; and other
evidence was afterwards given on the same point. In summing up,
the learned judge left the evidence of reputation, as to the bound-
ary of the hamlet, to the jury, but desired them not to take it into
2 Part of opinions omitted.
s And so in State v. Walker, 9S Mo. 95, 9 S. W. 646, 11 S. W. 1133 (1SS8) ;
Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65, 62
L. Ed. 200, L. R. A. 191SC, 497, Ann. Cas. 1918B, 461 (1917), where a large
number of the cases are collected.
Sec. 3) ADMISSION AND EXCLUSION OP EVIDENCE HI
consideration unless they were satisfied that the boundary of the
estate was the same with that of the hamlet. Verdict for the de-
fendant.
PaTTESON, J. 4 The point in dispute on the trial was a very simple
one, namely, whether the place in which the cattle were taken was or
was not parcel of a certain estate ; and that was, of course, to be de-
termined by any evidence which could be admissible upon such a ques-
tion. On this precise question, evidence of reputation was clearly
not admissible; but such proof is receivable to show the boundary of
a hamlet; and that being so, I do not see how it could be excluded
in the present case, when it was established that the boundaries of the
hamlet and of the farm were the same. Mr. Chilton, indeed, seems
not to rest his objection on the ground that such evidence is at all
events inadmissible, but to contend that, before it can be let in, the
boundaries must be shown beyond all doubt to have been identical.
That, however, would be trying the question twice over; and I think
that, as soon as some evidence of the identity was given, this proof was
receivable, the jury being cautioned by the learned judge not to take
it into consideration unless satisfied that the boundaries were the same.
If the identity of the boundaries had been proved by evidence of
reputation, the case would have been different ; but the witness called
on this subject stated it positively, and not as matter of reputation;
and, that being so, the proof of reputation as to the boundary of
the hamlet was let in, and supported the defendant's case, provided
the jury were satisfied of the identity upon the witness's statement.
Rule (for new trial) refused. 5
DOE dem. JENKINS et al. v. DAVIES et al.
(Court of Queen's Bench, 1847. 10 Adol. & El. [N. S.] 314.)
Ejectment for a tract of land in Cardiganshire. At the trial before
Coltman, J., there was a verdict for defendant. Williams obtained a
rule nisi for a new trial. 8
Lord Denman, C. J., in this vacation (February 8th,) delivered the
judgment of the Court.
It was admitted that the defendants were entitled to the verdict, if
one Elizabeth Stevens was legitimate ; that is, if her mother was the
wife of her father John Davies.
* Opinions of Lord Denman, C. J., and Coleridge, J., omitted.
s For a somewhat analogous situation see Winslow v. Bailey, 16 Me. 310
(1S39).
See confused discussion of a similar problem in Commonwealth v. Robin-
son 146 Mass. 571, 16 N. E. 452 (18SS). with which compare State v. Hyde,
234* Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191 (1910).
Statement condensed and part of opinion omitted.
112 THE COURT AND THE JURY (Ch. 1
The plaintiff began, and brought forward facts to make this improb-
able, particularly the declarations of John Davies, who was reported
to have said that he had not married her, because she was a bad wo-
man. It appeared, however, that they lived together, and passed as
man and wife. Some members of the family had treated her as his
wife ; others had treated her daughter Elizabeth Stevens as their
relation.
Witnesses were then called for the defendants, who gave additional
evidence to the same effect : and then an attorney produced a certifi-
cate of the marriage of John Davies with Eleanor Dillon, and stated
that he had received it from Elizabeth Stevens when he was inquiring
into the pedigree. He was then asked whether Stevens made any
statement respecting her mother's marriage; and the question was
objected to on various grounds.
First : That she was not yet conclusively proved to be a member
of the family. 7 The answer is, that it was the duty of the Judge to
decide whether it was proved to him: and he decided that it was.
There are conditions precedent which are required to be fulfilled before
evidence is admissible for the jury. Thus an oath, or its equivalent,
and competency, 8 are conditions precedent to admitting viva voce
evidence ; and apprehension of immediate death to admitting evidence
of dying declarations ; 9 and search to secondary evidence of lost
writings; and stamp to certain written instruments: and so is con-
sanguinity or affinity in the declarant to declarations of deceased rela-
tives. The Judge alone has to decide whether the condition has been
fulfilled. If the proof is by witnesses, he must decide on their cred-
ibility. If counter-evidence 10 is offered, he must receive it before he
7 See question of declarations to prove pedigree, chapter III, § 2, VIII, post,
661.
s Buller, J., in Rex v. Atwood, 2 Leach, C. C. 521 (1788): "The distinction
between the competency and the credit of a witness has been long settled.
If a question be made respecting his competency, the decision of that ques-
tion is the exclusive province of the judge; but if the ground of the objec-
tion go to his credit only, his testimony must be received and left with the
jury, under such directions and observations from the court as the cir-
cumstances of the case may require, to say whether they think it sufficiently
credible to guide their decision of the case. An accomplice, therefore, be-
ing a competent witness, and the jury in the present case having thought him
worthy of credit, the verdict of guilty, which has been found, is strictly legal,
though found on the testimony of the accomplice only."
a The King v. John, 1 East, P. C. 357 (1790), post, 464.
io But see Hitchins v. Eardley, L. R. 2 P. & D. 248 (1871), in which Lord
Penzance appears to have admitted similar evidence on a prima facie show-
ing because of the practical difficulties involved in any other course: "The
rule of law on the subject is perfectly plain. It is that when a witness is
called to give evidence of the docla rations of a person whose connection with
the family is in question, the judge is to decide whether this connection is
established. It is obvious the application of this rule must lead to some
practical difficulties, where the person whose declarations are tendered and
objected to is also the person whose legitimacy is the question in the suit,
and the court must do its best to meet those difficulties in a practical way.
The defendants propose to give evidence of declarations of the person whose
Sec. 3) ADMISSION AND EXCLUSION OF EVIDENCE 113
decides; and he has no right to ask the opinion of the jury on the fact
as a condition precedent. See Bartlett v. Smith, 11 M. & W. 483. In
this case the Judge thought the condition had been fulfilled ; and we
are of the same opinion.
It was further objected, that the question, whether Elizabeth Stev-
ens was a member of the family, was in fact the issue for the jury,
as she was not contended to be so unless she was legitimate; and, if
she was decided to be legitimate, her declarations to prove her legiti-
macy were superfluous. The answer is, that neither the admissibility
nor the effect of the evidence is altered by the accident that the fact
which is for the Judge as a condition precedent is the same fact which
is for the jury in the issue.
It was further objected that the evidence of the declaration of the
delivery of the marriage certificate to Elizabeth Stevens by her mother
ought not to have been received. But the handing down of pedigree
papers is a fact which may be proved by declaration, according to the
class of cases where family pedigrees have been held admissible by
reason of their being handed down from past generations. Rut this
declaration appears to us to be no more than the act done, the handing
her marriage certificate from her own keeping to that of her daugh-
ter. * * * Rule discharged. 11
legitimacy is in dispute, and it is suggested by Mr. Matthews that, in order
to determine whether these declarations are admissible, the court ought to
have the whole of the evidence in the suit on both sides. The effect of tak-
ing that course would be to postpone the reception of the evidence of these
declarations until all the rest of the evidence in the case had been produced,
and then practically to hear the whole of the evidence over again, together
with those declarations. * * * This shows the inconvenience of the
course suggested by the plaintiffs' counsel. It is impossible to lay down an
abstract rule on the subject, for each case must be determined by its own
facts. * * * It cannot be denied that a strong prima facie case has been
made out, and I think it will be better that f should at once admit these
declarations, for the purpose of having the whole case laid before the jury.
The jury will understand that they will ultimately have to form their own
opinion upon the matter, in the lull light of the whole of the evidence.
* * * I rule that I am sufficiently satisfied of the declarant being a mem-
ber of the family for the purpose of admitting the declarations, and I re-
ject the evidence tendered by the plaintiffs on the voir dire."
11 Where declarations of an alleged agent are sought to be used as ad-
missions imputable to the principal, it is for the judge and not the Jury to
determine the fact of agency as a preliminary question. Dickerman v Quin-
cy Mut Fire Ins. Co., 67 Vt. 009, 32 Atl. 4S9 (1895); Jones v. Hurlburt, 39
Barb. (N. Y.) 40:; (1S63).
Hint.Ev. — 8
114
THE COURT AND THE JURY
(Ch. 1
BOYLE v. WISEMAN.
(Court of Exchequer, 1S55. 11 Exch. 3G0.)
This was an action for a libel originally published in "The Univers,"
a French newspaper, and afterwards in "The Catholic Standard" and
"The Tablet," two English newspapers. 12 The case was tried twice,
and the Court had, after the first trial, granted a new trial on the
ground of the improper reception of evidence, and also on the ground
that the testimony of the defendant had been improperly rejected. The
cause was tried the second time before Piatt, B., at the last Spring
Assizes for Surrey, when it was sought to prove the publication of the
libel in "The Univers" by giving secondary evidence of the contents
of a letter written by the defendant to the Abbe Cognat, a Roman
Catholic priest residing in Paris, and which letter was alleged to con-
tain admissions implicating the defendant. The Abbe Cognat had
refused either to give up the letter or to attend the trial and produce
it. A witness called on the part of the plaintiff was requested to state
the contents of the letter from memory, whereupon the defendant's
counsel handed a document to the witness and asked him whether
that was not the original letter, to which the witness replied that if it
was it had been altered. It was then proposed, on the part of the
defendant, to give evidence to show that the document tendered was
the original letter ; and it was submitted, that on satisfactory proof of
that fact the secondary evidence must be excluded. There had not
been an}' notice to produce or to admit this letter. The learned Judge,
however, ruled that the defendant could not at that "stage of the cause
give such evidence, but that he might do so when his case came on.
The cause proceeded, but the defendant did not tender any evidence,
and a verdict was found for the plaintiff with £1000. damages.
Shee, Serjt., had obtained a rule calling on the plaintiff to show cause
why the verdict should not be set aside and a new trial had, on the
ground that the evidence in question had been improperly rejected
and also of the damages being excessive.
Parke, B. 13 I am of opinion that the rule must be absolute. 1
entertain no doubt upon the question. On a trial at Nisi Prius, it_is_
the sole duty of the Judge to decide any question of fact which may
arise in the course of the inquiry, on which the admissibility of evi-
dence depends. Now, the rule is, that secondary evidence is not ad-
missible unless primary evidence cannot be procured ; and before it
can be admitted, it must be shown that reasonable efforts have been
made, and have proved unavailing, to procure the primary evidence.
Such proof was given in this case, for the plaintiff gave sufficient evi-
dence to let in parol proof of the contents of the instrument, if the
12 See the report of this case. 10 Exch. 647.
is Opinions of Piatt and Martin, BB., and supplemental opinion by Al-
derson, B., omitted.
*Or
I*l»
Sec. 3)
ADMISSION AND EXCLUSION OF EVIDENCE
115
instrument itself had not been produced. But the defendant inter-
posed by producing a document which he tendered as the original let-
ter. Whether such was the fact was to be decided, for the mere state-
ment of the defendant that it was is not sufficient, neither was the
statement of the plaintiff's witness, that he saw the original letter, and
that the document produced was not the original. There being these
conflicting statements, the Judge was bound to hear evidence on both
sides, and decide whether the document tendered by the defendant was
the original. If he had decided that it was not, it would have been
competent for the plaintiff to give the secondary evidence he offered,
and the credit due to it would be for the jury. In such a case the
Judge should hear the witnesses at length, for the purpose of deciding
whether the document tendered is the original ; and if he is of opin-
ion that it is, that document alone must be read to the jury. This is
the law as laid down by the Judges on the prosecution of Major Camp-
bell, 11 M. & W. 486, where they expressed the opinion, that, on a
dying declaration being tendered in evidence, it was not competent to
the Judge to leave it to the jury to say whether the deceased knew,
when he made it, that he was at the point of death, as such matter must
be decided by the Judge and not by the jury. The authority of that
case has always been acknowledged, and it is now well-settled that all
these preliminary questions on which the reception of evidence depends
ought not to be submitted to the jury for their consideration, but must
be decided by the Judge himself.
Alderson, B. I am of the same opinion. There is a material dif-
ference between the question whether a document, which is an undis-
puted original, ought to have been received in evidence, and whether
secondary evidence of a particular document ought to be received, on
the ground that a document tendered as the original is not in fact the
original. It appears to me that it is upon the false analogy between
these cases the fallacy of the argument turns. Where a deed is re-
ceived in evidence, the deed is proved in the regular way by its pro-
duction, and the party seeking to alter the effect of the evidence must
give his proof when his turn comes, and the whole of the evidence
must go to the jury. So, in such a case as occurred yesterday, where
an old lady was said to have received love letters from a person
against whom she brought an action for breach of promise of mar-
riage, there was prima facie evidence that those letters were in the
handwriting of the defendant, and they were either the originals or
forgeries ; but, whether they were or were not was not a question of sec-
ondary evidence, anfc the defendant was therefore obliged to wait till his
own case came on before he could prove the falsehood of her statement,
by contradicting the evidence of her witnesses who deposed to the hand-
writing being his. The question of the genuineness of handwriting
is for the jury, as a question of primary evidence. In both those cases
it is primary evidence, but here the question is what evidence are the
k
s$
/
^
*»
116 THE COURT AND THE JURY (Ch. 1
jury to receive, and not what evidence they are to believe. It is clear
that the plaintiff was seeking to give secondary evidence of a matter
that existed elsewhere. Where was that document which was the
primary evidence, and without the non-production of which secondary
evidence was altogether inadmissible? The plaintiff's case was that it
was in France. The defendant's case, that it was there in Court.
Which is right? If the plaintiff's case is right, he is entitled to give
the secondary evidence. If the defendant is correct, the secondary
evidence is inadmissible. Who then is to determine whether that
document is to be received at all? Surely not the jury, for they are
only to judge upon the evidence when it is received. It is the duty of
, the Judge, and he must determine whether it ought to be received ;
and if for that purpose it is necessary that he should determine a ques-
tion of fact, he must determine that question, and the party against
whom the Judge decides has his remedy by applying to the Court to
correct the error, if the Judge has decided wrongly. The question
of fact must be submitted, first, to the Judge, and afterwards to the
Court. If he receives the evidence, and the Court are of opinion that
he ousht not to have received it, his decision will be overruled. But
there is no question for the jury as to the reception of the evidence,
for their duty does not arise until after the evidence has been received.
Rule absolute. 14
STOWE v. QUERNER.
(Court of Exchequer, 1S70. L. K. 5 Exch. 155.)
Bramwell, B. 15 In this case the question which was argued before
us yesterday arose thus : During the trial of an action on a policy of
insurance it became necessary to produce the policy, and the plaintiffs
gave evidence of a duly stamped policy having been executed, and of
its being in the possession of the defendant. Notice to produce had
also been given. Upon its being called for, however, the defendant
declined to produce it, and thereupon the plaintiffs proposed to read
a document which purported to be a copy, and which they had re-
ceived from the defendant's broker. The defendant objected, and of-
fered to displace the effect of the evidence of the existence of the
policy which had been given by the plaintiffs, and to render the copy
inadmissible by showing that no policy had ever been executed at all.
The judge refused to hear this interlocutory evidence, and allowed
the document to be admitted and read. We are all of opinion that he
was right. If the objection on the part of the defendant had been that
there was a policy, but that it was not stamped, it would perhaps have
i« Other preliminary questions: Bartlett v. Smith, 11 M. & W. 483 (1843),
objection on account of stamp ; Cleave v. Jones, 7 Exch. 421 (1852), claim
of privilege for a document.
* 6 Statement and opinions of Martin, Pigott, and Cleasby, I JR., omitted.
Sec. 3) ADMISSION AND EXCLUSION OF EVIDENCE 117
been well founded. But here it was objected that there was no policy
executed at all; an objection which goes to the entire ground of ac-
tion, and one which, if it had prevailed, might have left the jury noth-
ing to decide. For, suppose the judge had ruled that the copy was
inadmissible on the ground that there was no original ever in exist-
ence, the plaintiffs would in fact have had no case left, and the judge)
would himself have decided the whole of it. The difference between
this case and Boyle v. Wiseman, 10 Ex. 647, 24 L. J. (Ex.) 160, is
very wide. There the plaintiff had the means, if he had chosen, of
giving the alleged original in evidence, but here if the copy had been
excluded the plaintiffs would have been left without any means of
proof whatever. Put an illustration analogous to the present. Sup-
pose an action to be brought for libel, and a copy of a letter which is
destroyed, but which contained the libel complained of, is produced
and tendered in evidence. Could the defendant say, "Stop; I will
show that no letter 16 was in point of fact ever written, and I call
upon you. the judge, to hear evidence upon this point, and if I sat-
isfy you that no such letter ever existed, you ought not to admit the
copy?" Surely not; for that would be getting the judge to decide
what is peculiarly within the province of the jury. The distinction
is really this: where the objection to the reading of a copy concedes
that there was primary evidence of some sort in existence, but defec-
tive in some collateral matter, as, for instance, where the objection is
a pure stamp objection, the judge must, before he admits the copy,
hear and determine whether the objection is well founded. But where
the objection goes to show that the very substratum and foundation of
the cause of action is wanting, the judge must not decide upon the
matter, but receive the copy, and leave the main question to the jury.
It was further said there was no stamped policy in existence. But
the real objection, as I have already observed, was that there was no
policy at all, and therefore, of course, no stamped policy. The want
of stamp was not the actual point relied on, and it was in a manner
merged in the other objection. We are, therefore, of opinion that
this rule should be discharged.
Rule (for a new trial) discharged. 17
is Compare Goodier v. Lake, 1 Atkyns, Ch. 446 (1737), In which the Lord
Chancellor said: "Where an original note of hand is lost, and a eopj of it
Is offered in evidence to serve any particular purpose in a cause, you mu-i
show sufficient probability to satisfy the court that the original note was
genuine, before you will be allowed to read the copy."
See the somewhat contradictory explanation in St. Croix Co. v. Seacoast
('.lining Co., 114 Me. 521, 9G Atl. 1059 (1916).
i" It is for the jury to determine whether the copy admitted is in fa. i
a true copy of the original. Rosendorf v. Baker, 8 Or. 241 (1880).
\
<\
118 THE COURT AND THE JURY (Ch. 1
CAIRNS v. MOONEY.
(Supreme Court of Vermont, 1S90. 62 Tt. 172. 19 Atl. 225.)
Action of assumpsit. Plea, the general issue. Trial by jury at the
September term, 1889, Powers, J., presiding. Verdict and judgment
for the plaintiff. Exceptions by the defendant. The plaintiff sued
for the price of certain apples sold by her testator to the defendant.
The defendant claimed that the quality of the apples was not accord-
ing to the contract, and offered to so testify himself. To his testimony
the plaintiff objected, because the other party to the contract was dead.
Thereupon the defendant insisted, and his evidence tended to show,
that the contract was not made with the testator, but with his son,
acting as his ^gent. The court excluded the evidence.
Taft, J. The defendant was not a competent witness, "unless the
contract in issue was originally made with a person who is [was]
living and competent to testify." The defendant claimed that the
contract for the apples was made with Harvey Cairns, acting as agent
for the testate, and who was present at the trial, and testified. Con-
ceding that the testimony of the defendant's witness tended to estab-
lish the fact of agency, the question was one for the court. The de-
fendant insists that he should have been permitted to testify, and the
question of agency submitted to the jury ; and, if they found it es-
tablished, they should then consider the testimony of the defendant
upon the various points upon which he gave testimony ; and, if they
did not find the fact of agency proved, reject the testimony. It was a
question of competency or incompetency of the defendant as a wit-
ness, and that question is always for the court, and should never be
submitted to the jury. 1 Greenl. Ev. (14th Ed.) § 49, and note a;
1 Tayl. Ev. § 21; Bartlett v. Smith, 11 Mees. & W. 483; Reg. v.
Hill, 5 Eng. Law & Eq. 547; Cook v. Mix, 11 Conn. 432; Holcomb
v. Holcomb, 28 Conn. 177; Harris v. Wilson, 7 Wend. (N. Y.) 57;
Reynolds v. Lounsbury, 6 Hill. (N. Y.) 534; Dole v. Thurlow, 12
Mete. (Mass.) 157; McManagil v. Ross, 20 Pick. (Mass.) 99. In some
jurisdictions it has been held that, in doubtful cases, it is not improper
to refer the existence of the facts upon which the competency depends
to the jury, and in some instances it is intimated that it should be done.
Insurance Co. v. Reynolds, 36 Mich. 502 ; Johnson v. Kendall, 20 N.
H. 304; Bartlett v. Hoyt, 33 N. H. 151; Hart v. Heilner, 3 Rawle
(Pa.) 407; Gordon v. Bowers, 16 Pa. 226; Haynes v. Hunsicker, 26
Pa. 58.
Questions of fact affecting the admissibility of testimony often arise,
and it would be very inconvenient, if not impracticable, to submit them
to the decision of a jury. The testimony, as to the competency of a
' witness, and that of the witness as to the issues upon trial, would
all go to the jury, with directions that, if they found the witness in-
competent, it would be their duty to disregard his evidence upon the
v\
V
a*
Sec. 3) ADMISSION AND EXCLUSION OF EVIDENCE H9
main issues, which in many instances it might be impossible to do,
Having heard the illegal testimony discussed by counsel, the confu-
sion which would probably arise in separating the legal from the il-
legitimate testimony would no doubt lead to the rendition of erroneous
verdicts, with no relief for the unfortunate party ; and certainly this
should not be the rule in a jurisdiction where the admission of illegal
evidence is not cured by a direction from the court to disregard it.
State v. Hopkins, 50 Vt. 316; State v. Meader, 54 Vt. 126; Hall v.
Jones, 55 Vt. 297 ; Rob. Dig. p. 700, pi. 55. In Cook v. Mix, supra,
the question was whether the witness had an interest in the event of
the suit, and the court said it "was a question of fact, to be determined
on the evidence before the court. It is claimed, in the first place, that
the judge mistook the law in not submitting this question to the jury,
and this claim has been gravely urged before this court. It is suffi-
cient to observe that the claim is as unfounded as it is novel, that it
has no support either in principle or authority, and is utterly incapable
of being reduced to practice."
It is not by any means, true that all questions of fact in a jury trial
must be left to the jury. Numerous instances where the court pass
upoTi such questions can be readily called to mind, e. g., whether a
witness is an expert; or a dying declarant entertained hopes of re-
covery ; or a writing to be used as a test in comparison of hand-writ-
ing is proved; or a witness has sufficient mental capacity to testify,
or is the husband or wife of the party; or declarations are so far a
part of the res gestae as to be admissible ; or a confession was induced
by threats ; or a document has been duly or sufficiently stamped ; . or
sufficient search been made for a lost document to warrant the intro-
duction of secondary evidence. Many other instances might be given.
In the beginning of a jury trial, suppose a woman is offered as a wit-
ness for the plaintiff, and the defendant objects, for that she is the
wife of the plaintiff. The question is purely one of fact. Will any one
claim that her testimony should be given upon the main issues, and
the question of whether wife or not be left to the jury, and then, if
they find her to be the wife, discard her testimony, but, if not, con-
sider it? Conceive that in a suit in favor of several plaintiffs the
question should arise in respect to each one. Well might the Con-
necticut court characterize the claim of the defendant as unfounded as
it was novel.
The court below, not being satisfied from the evidence that the con-
tract in issue was made with an agent of the testate, properly held the
defendant incompetent. Judgment affirmed.
120 THE COURT AND THE JURY (Ch. 1
SEMPLE v. CALLERY et al.
(Supreme Court of Pennsylvania, 189S. 184 Pa. 95, 39 At!. 6.)
Fell, J. 18 The court, at the time a witness was called, heard testi-
mony on the question of the good faith of an assignment by which
the witness had devested himself of all interest in the controversy, and
permitted him to testify. At the close of the testimony the court was
requested to submit to the jury the same question on which it had
passed, and to instruct them to disregard the testimony of the witness
if they found that the assignment had not been made in good faith.
The sixth section of the act of May 23, 1887 (P. L. 158), provides that
a person incompetent to testify as a witness because of interest, may
become fully competent "by a release or extinguishment, in good faith,
of his interest, upon which good faith the trial judge shall pass as a
preliminary question." It was not intended by this provision to make
the decision of the court subject to review by the jury, and to change
the long-established rule of evidence that it is the province of the'
court finally to decide preliminary questions of fact upon which tne
admissibility of testimony depends. Whether a release has been exe-
cuted in good faith is a question preliminary to the question of com-
petency, and as such it is decided as a preliminary question; but its
decision is not preliminary merely to a second decision by the jury.
The competency of a witness as to questions of both fact and law is
to be determined by the courj. * * *
Affirmed.
BRISTER v. STATE.
(Supreme Court of Alabama, 1855. 26 Ala. 107.)
The defendant Brister and several other slaves were indicted for
the murder of one John Rickard. At the trial the court admitted
proof of confessions made by the defendants, though the evidence
tended strongly to show that they were made under the fear of vio-
lence. The court charged the jury that they should consider the con-
fessions and act on them if they believed them to be true, and refused
to charge, as requested by defendants, that they should exclude the
confessions unless they were satisfied that they were made before one
of the defendants was whipped. The defendants were convicted and
sued out writ of error. 19
Rice, J. We now proceed to the consideration of the important
subject of confessions. We shall treat it with becoming caution, and
shall confine ourselves as much as possible to the language used by
what we deem the highest and best authorities on the subject.
is Part of opinion omitted.
19 Statement condensed and parts of opinion omitted.
Sec. 3) ADMISSION AND EXCLUSION OF EVIDENCE 121
In the first place, we shall state the general rules which should gov-
ern the judge in deciding upon the competency — the admissibility of
confessions. ,%> Jf^^-a.
(Before any confession can be received in evidence, in a criminal *-^ T"^
case, it must be shown that it was voluntary — that is, that it was made
without the appliances of hope or fear, by any other person. Whether
it was so made or not, it is for the judge (before he admits it) to de-
termine, upon consideration of the age, condition, situation and char-
acter of the prisoner, and the circumstances under which it was made.
The material inquiry is, whether the confession has been obtained by
the influence of hope or fear, applied by a third person to the prisoner's
mind. \l Greenl. Ev. § 219; Wyatt v. State, 25 Ala. 9; Spence v.
State/17 Ala. 197; Seaborn and Jim v. State, 20 Ala. 15. * * *
Where promises or threats have been used, yet, if it appear to the
satisfaction of the judge that their influence was totally done away
before the confession was made, the evidence will be received. 1
Greenl. Ev. § 221.
In the next place, we shall state the rules which should govern the
parties and the jury after confessions have been admitted by the judge.
Whenever a confession is admitted by the court, the jury, must take \
it ; they cannot reject it as incompetent ; they are confined to its cred- )
ibility and effect. /
Either party has the right to prove to the jury the same facts and
circumstances which were legally proved to the court when it was
called upon to decide the question of competency, and all other cir-
cumstances applicable to the confession or having any legal bearing
on its credibility or effect ; and if, in view of all the facts and cir-
cumstances proved, the jury entertain a reasonable doubt as to the
truth of the confession, they may disregard it, in their decision of the
case, as being incredible, although they cannot reject it as incompe-
tent. Commonwealth v. Dillon, 4 Dall. 116, 1 L. Ed. 765; Common-
wealth v. Knapp, 10 Pick. (Mass.) 477-496, 20 Am. Dec. 534 ; State
v. Guild, 5 Halst. 163; 2 Phil. Ev. 235-240, notes 205 and 207. If
they entertain no such reasonable doubt, they ought not to disregard
'it, although they may believe it was obtained by the appliances of
hope or fear to the mind of the prisoner.
The rules laid down recognize the sphere of the judge and the sphere
of the jury as distinct ; and, whilst they prevent the jury from invad-
ing the province of the judge, they alike prevent him from invading
their province. These rules, also, preserve the great safeguard thrown
around every person charged with crime — the right to claim at the
hands of a jury the benefit of every reasonable doubt arising from the
evidence.
A majority of the court are of opinion, that the confessions in this
case, under the previous decisions of this court, were improperly re-
ceived. * * *
122 THE COURT AND THE JURY (Ch. 1
In this connection, it is proper to say, that it follows from the rules
above stated, that there was no error in the second charge given by
the court, nor in refusing the second charge asked by the prisoners.
If this second charge asked had been given, the jury would have been
thereby forced to "exclude their confessions from their consideration
entirely," although they were convinced beyond a reasonable doubt
that the confessions were true — merely because they could not
determine beyond a reasonable doubt that the confessions were made
before the slave Bill was whipped. * * *
Judgment reversed (on other grounds). 20
SLOTOFSKI v. BOSTON ELEVATED RY. CO.
(Supreme Judicial Court of Massachusetts, 1913. 215 Mass. 31S, 102 N. E. 417.)
Action of tort by the administratrix of Joseph Slotofski for the death
of said deceased alleged to have been caused by the negligence of the
defendant. Verdict for defendant and plaintiff alleged exceptions. 21
De Courcy, J. The chief injuries received by the deceased were
concussion and contusions of the brain, from which he died within 48
hours after the accident. He was insensible immediately after his
fall and until after treatment by a physician in the drug store to which
he was removed, was semiconscious the next day, and finally lapsed
once more into insensibility. He was constantly complaining of pain
in his head. A witness for the plaintiff, who understood the language
of the deceased, testified that he thought the man's conversation in the
drug store after he regained consciousness was incoherent.
In the absence of the jury a son and daughter of the deceased testi-
fied that certain declarations were made by him, which were in sub-
stance that the conductor started the car while he was alighting. The
judge excluded this testimony and ruled that under R. L. c. 175, §
20 Accord: Commonwealth v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec.
534 (1830); Burton v. State, 107 Ala. 10S, 18 South. 284 (1S94) ; State v.
Brennan, 164 Mo. 487, 65 S. W. 325 (1901); Ellis v. State, 65 Miss. 44, 3
South. 188, 7 Am. St. Rep. 634 (18S7) ; State v. Monich, 74 N. J. Law, 522,
64 'Atl. 1016 (1906) [dving declarations].
Contra: Wilson v. United States, 162 U. S. 613, 16 Sup. Ct. S95, 40 L. En.
1090 (1896), semble; Commonwealth v. Preece, 140 Mass. 276, 5 N. E. 4L>4
(1SS5) ; State v. Phillips, 118 Iowa, 660, 92 N. W. 876 (1902), where a large
number of cases are collected.
Holmes, J., in Com. v. Brewer, 164 Mass. 577, 42 N. E. 92 (1S95): "When
the admissibility of evidence depends upon a collateral fact, the regular
course is for the judge to pass upon the fact in the first instance, and then,
if he admits the evidence, to instruct the jury to exclude it if they should
be of a different opinion on the preliminary matter. Commonwealth v.
Preece, 140 Mass. 276, 277, 5 N. E. 494 (18S5); Commonwealth v. Kobinson,
146 Mass. 571, 580 et seq., 16 N. E. 452 (1888)."
- 1 Statement condensed and part of opinion omitted.
Sec. 3) ADMISSION AND EXCLUSION OF EVIDENCE 123
66,-- the court must find that the statements were made by the deceased
before he could pass upon the question whether the statements, if
made, were made in good faith ; and he declined to find that they were
made at all, on the ground that he did not believe that a man whose
brain had been the recipient of such a concussion could or did make
such statements. The plaintiff excepted to the ruling and to this ex-
clusion of evidence.
The competency of witnesses and the admissibility of evidence that
is offered is for the judge to determine. When, in order to pass upon
the admissibility in law of a given piece of evidence, it becomes neces-
sary to determine a preliminary question of fact, this also the judge
necessarily must determine before he admits the evidence to the jury. (
During this proceeding he may direct that the jury be retired out of
hearing, as was done in this case, and may hear evidence on both sides
to ascertain the incidental fact. So far as his decision is of a question
of fact merely, it is ordinarily conclusive unless it appears that the
evidence was not sufficient to warrant the finding on which the court
proceeded. Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452;
Dexter v. Thayer, 189 Mass. 114, 75 N. E. 223; 4 Wigmore on Evi-
dence, § 2550; 8 Ann. Cas. 539 note.
The practice in this commonwealth on certain issues in criminal
cases such as confessions and dying declarations is to allow the accused
to reargue to the jury the preliminary question of fact where the evi-
dence is let in against his objection. 23 Commonwealth v. Reagan, 175
Mass. 335, 56 N. E. 577, 78 Am. St. Rep. 496; Commonwealth v.
Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056. But
even in these exceptional cases, if the evidence is excluded that is an
end of the matter unless some question of law is reserved. As was
said by Holmes, J., in Commonwealth v. Bishop, 165 Mass. 148, 42 N.
E. 560, "the whole purpose of the preliminary action of the judge
would be lost if in all cases the evidence had to be laid before the jury
so as to give them the last word."
Under the statute in question, it is a condition precedent to the ad-
missibility of the declarations of a deceased person that the presiding
judge shall determine, as a preliminary finding, that the declaration
was made in good faith before the commencement of the action and
upon the personal knowledge of the declarant. R. L. c. 175, § 66;
Dickinson v. Boston, 188 Mass. 597, 75 N. E. 68, 1 L. R. A. (N. S.)
664; Glidden v. U. S. Fidelity & Guaranty Co., 198 Mass. 109, 84 N.
E. 143 ; Carroll v. Boston Elevated Railway, 210 Mass. 500, 96 N. E.
1040. Where the form of the statement made by the deceased leaves
22 "A declaration of a deceased person shall not be inadmissible in evi-
dence as hearsay if the court finds that it was made in good faith before the
commencement of the action and upon the personal knowledge of the de-
clarant."
2s See Commonwealth v. Preece, 140 Mass. 276, 5 N. E. 494 (1SS5).
124 . THE COURT AND THE JURY (Ch. T
it doubtful whether it was a statement of fact or of opinion, it is for
the court to decide in which sense it was made. Stone v. Common-
wealth, 181 Mass. 438, 63 N. E. 1074; George v. George, 186 Mass.
75, 71 N. E. 85; Gray v. Kelley, 190 Mass. 184, 76 N. E. 724.
Where, as in the case at bar, the judge cannot find the existence of
the alleged declaration, it is difficult to conceive how he can find good
faith and the other requisites plainly required by the statute. And we
cannot say that he was not justified by the evidence in coming to the
conclusion that the deceased was in such a mental state, in consequence
of his injuries, as to be unable to make the alleged statements. The
plaintiff's exceptions relating to the preliminary inquiry must be over-
ruled. * * *
Exceptions overruled.
Sec. 1) WITNESSES 12 *
CHAPTER II
WITNESSES
SECTION 1.— COMPETENCY
I. Intelligence and Religious Belief
OMICHUND v. BARKER.
(Court of Chancery. 1744. Willes, 538.)
Several persons resident in the East Indies and possessing the Gen-
too religion, 1 having been examined on oath administered according to
the ceremonies of their religion under a commission sent there from
the Court of Chancery, it became a question whether those depositions
could be read in evidence here ; and the Lord Chancellor, conceiving
it to be a question of considerable importance, desired the assistance
of Lee, Lord Chief Justice B. R., Willes, Lord Chief Justice C. B.,
and the Lord Chief Baron Parker, who after hearing the case argued
were unanimously of opinion that the depositions ought to be read.
The case is shortly reported in 1 Wils. 84, and more fully in 1 Atk.
21. The following opinion was delivered by
Willis, Lord Chief Justice C. B. 2 I could satisfy myself by mere-
ly saying that as to the present question I am of the same opinion
as the Lord Chief Baron ; but as this is in a great measure a new case,
as it is a question of great importance, and as so much has been said
by the counsel on both sides, I believe it will be expected that I should
give my reasons for the opinion which I am going to give, though in
the course of my argument I must necessarily touch upon many things
that have been already better expressed by the Lord Chief Baron.
Though it be necessary only to give my opinion whether the deposi-
tions taken in the present case can be read or not, yet it may be pror°r
in order to come at this particular question, in the first place to con-
sider the general question, whether an infidel, I mean one who is not
a Christian, for in that case Lord Coke certainly meant it, can be ad-
mitted as a witness in any case whatsoever. If I thought with my Lord
Coke that he could not, I must necessarily be of opinion that the depo-
sitions in the present case could not be read as evidence. On the
i It appeared from the certificate of the Commissioner to the satisfaction of
the court that according to this religion the witnesses believed in and wor-
shiped a god who would reward or punish them according to their deserts.
- Part of opinion omitted.
126 WITNESSES (Ch. 2
other hand, if I thought that infidels in all cases and under all circunv
.stances ought to be admitted as witnesses, the consequence would be as
strong the other way, that these depositions ought to be read. But
if I should be of opinion (and I shall certainly go no further) that some
infidels in some cases and under some circumstances may be admitted
as witnesses, it will then remain to be considered, whether these infidels,
who are examined in the cause under the circumstances in which they
appear in this court, are legal witnesses or not. * * *
I shall now proceed to explain the nature of an oath, which will I
think contribute very much towards the determination of the general
as well as the present question. If an oath were merely a Christian
institution, as baptism, the sacrament, and the like, I should be forced
to admit that none but a Christian could take an oath. But oaths were
instituted long before Christianity was made use of to the same pur-
poses as now, were always held in the highest veneration, and are al-
most as old as the creation. Juramentum (according to Lord Coke
himself) nihil aliud est quam deum in testem vocare; and therefore
nothing but the belief of a God and that he will reward and punish
us according to our deserts is necessary to qualify a man to take the
oath. We read of them therefore in the most early times. If we look
into the sacred history, we have an account in Genesis, c. 26, v. 28 and
31; and again Genesis, c. 31, v. 53, y that the contracts betwixt Isaac
and Abimelech, and between Jacob and Laban, were confirmed by
mutual oaths ; and yet the contracting parties were of very different
religions, and swore in a different form. It would be endless to cite
the places in the Old Testament where mention is made of taking an
oath upon solemn occasions, and how great a reverence was always
paid to it. I shall take only notice of three, one in Numb. 30, 2. "He
that sweareth an oath bindeth his soul with a bond." Another in
Deut. c. 6, v. 13. "Thou shalt fear the Lord thy God, and swear by
his name." And another, Psalms 15, v. 5, where a righteous man is
described in this manner, "One who sweareth unto his neighbour and
disappointeth him not, though it were to his own hindrance." * * *
It is very plain from what I have said that the substance of an oath
has nothing to do with Christianity, only that by the Christian religion
we are put still under great obligations not to be guilty of perjury;
the forms indeed of an oath have been since varied, and have been al-
ways different in all countries according to the different laws, re-
ligion and constitution of those countries. But still the substance is
the same, which is that God in all of them is called upon as a witness
to the truth of what we say. Grotius in the same chapter, sect. 10,
says, forma jurisjurandi verbis differt, re convenit. There are several
very different forms of oaths mentioned in Selden, vol. 2, p. 1470; but
whatever the forms are he says, that is meant only to call God to wit-
ness to the truth of what is sworn ; "fit Deus testis," "fit Deus vindex,"
or "ita te Deus adjuvet," are expressions promiscuously made use ot
in Christian countries; and in ours that oath hath been frequently
Sec. 1) COMPETENCY 12"
varied; as "ita te Deus adjuvet tactis sacrosanctis Dei Evangeliis,"
"ita, etc., et sacrosancta Dei Evangelia," "ita, etc., et omnes sancti."
And now we keep only these words in the oath, "So help you God,"
and which indeed are the only material words, and which any heathen
who believes a God may take as well as a Christian. The kissing the
book here, and the touching the Bramin's hand and foot at Calcutta,
and many other different forms which are made use of in different
countries, are no part of the oath, but are only ceremonies invented to
add the greater solemnity to the taking of it, and to express the assem
of the party to the oath when he does not repeat the oath itself ; but
the swearing in all of them, be the external form what it will, is calling
God Almighty to be a witness, as is clear from these words of our
Savior in Matthew, chap. 23, v. 21 and 22 : "Whoso sweareth by the
Temple sweareth by it and by him that dwelleth therein ; and he
that sweareth by Heaven sweareth by the Throne of God and by him
that sitteth thereon." As to what was said by the counsel that Chris-
tianity is part of the law of England, (which is certainly true as it is
here established by laws) and that therefore to admit the oath of a
heathen is contrary to the law of England; it appears from what I
have already laid down that there is nothing in that argument, since
an oath is no more a part of Christianity than of every other religion
in the world. * * *
Having now I think sufficiently shewn that Lord Coke's rule is
without foundation either in scripture, reason, or law, that I may not
be understood in too general a sense, I shall repeat it over again, that
I only give my opinion that such infidels who believe a God and that
he will punish them if they swear falsely, in some cases and under
some circumstances, may and ought to be admitted as witnesses in
this though a Christian country. And on the other hand I am clearly
of opinion that such infidels (if any such there be) who either do not
believe a God, or, if they do, do not think that he will either reward
or punish them in this world 3 or in the next, cannot be witnesses in
any case nor under any circumstances, for this plain reason, because
an oath cannot possibly be any tie or obligation upon them. I there-
fore entirely disagree with what is reported to have been said by
Lord Chief Justice Ley in 2 Rol. Rep. 346, Tr. 21 Jam. I, B. R., that
in the trials of matters arising beyond sea we ought to allow such
proofs as they beyond the sea would allow. This would be leaving
this point on so very loose and uncertain a foot, that I cannot come in-
to it ; for if this rule were to hold, considering in what a strange man-
ner justice is administered in some foreign parts, God knows what
evidence must be admitted. * * * Before I conclude this head I
must beg leave again to take notice of what is said by Lord Hale,
s See Atwood v. Welton, 7 Conn. 66 (1S2S), for an elaborate opinion that a
witness is incompetent who does not believe that there is any punishment
after this life.
128 WITNESSES (Ch. 2
that it must be left to the jury what credit must be given to these in-
fidel witnesses. For I do not think that the same credit ought to be
given either by a court or a jury to an infidel witness as to a Christian,
who is under much stronger obligations to swear nothing but the truth.
The distinction between the competency and credit of a witness is a
known distinction, and many witnesses are admitted as competent to
whose credit objections may be afterwards made. The rule of evidence
is that the best evidence must be given that the nature of the thing will
admit. The best evidence which can be expected or required according
to the nature of the case must be received, but if better evidence be of-
fered on the other side, the other evidence, though admitted, may
happen to be of no weight at all. To explain what I mean : Suppose
an examined copy of a record (as it certainly may) be given in evi-
dence; if the other side afterwards produce the record itself, and it
appears to be different from the copy, the authority of the copy is at
an end. To come nearer to the present case: Supposing an infidel
who believes a God and that he will reward and punish him in this
world, but does not believe a future state, be examined on his oath
(as I think he may), and on the other side to contradict him a Chris-
tian is examined, who believes a future state and that he shall be
punished in the next world as well as in this, if he does not swear the
truth, I think that the same credit ought not to be given to an infidel as
to a Christian, because he is plainly not under so strong an obliga-
tion. * * *
The only objection that remains against admitting this evidence is
that these witnesses will not be liable to be indicted for perjury; be-
cause they are not sworn supra sacrosancta Dei Evangelia, which
words, as was insisted, are necessary in every such indictment, and
therefore they are not under the same obligations to swear truly as
Christian witnesses are. But this objection has been in a great meas-
ure already answered by the Chief Baron, and it may receive two plain
answers; first, that these words "supra sacrosancta Dei Evangelia,"
or "tactis sacrosanctis Dei Evangeliis," are not necessary to be in an in-
dictment for perjury. They have been omitted in many indictments
against Jews, of which several precedents have been laid before us ;
and they are not in the precedents of such indictments which I find
in an ancient and very good book, entitled West's Simboleography ;
but it is only said there "supra sacramentum suum dixit et deposuit"
or "affirmavit et deposuit." Besides this argument, if it prove any-
thing, proves a great deal too much; for if there were anything in
it, many depositions even of Christians have been admitted, and many
more must be admitted or else there will be a manifest failure of jus-
tice, where the witnesses are certainly not liable to be indicted ; for
when the depositions of witnesses are taken in another country, it fre-
quently happens that they never come over hither, or if they cannot
be indicted for perjury because the fact was committed in another
Sec. 1) COMPETENCY l- 1 '
country. Those therefore who are plainly not liable to be indicted for
perjury have often been, and for the sake of justice must be, admitted
as witnesses; and so there is an end of this objection.
From what I have said it is plain that my opinion is that these dep-
ositions ought to be read in evidence.*
THE KING v. WHITE.
(Commissioners of Oyer and Terminer, 1786. Leach, Cr. Cas. 4"0.)
On the trial of an indictment at the Old Bailey for horse-stealing,
in October Session, 1786, Thomas Atkins was called as a witness to
support the prosecution.
. Being examined on the voir dire, 5 he said, that he had heard there
was a God, and believed that those persons who tell lies would come to
the gallows, but acknowledged that he had never learned the Cate-
chism, was altogether ignorant of the obligations of an oath, a future
state of reward and punishment, the existence of another world, or
what became of wicked people after death.
The Court rejected him, as being incompetent to be sworn; for
that an oath is a religious asseveration, by which a person renounces
the mercy, and imprecates the vengeance, of heaven, if he do not
speak the truth ; and therefore a person who has no idea of the sanc-
tion which this appeal to heaven creates, ought not to be sworn as a
witness in any Court of Justice.
REX v. TRAVERS.
(Court of King's Bench, 1726. 1 Strange, 699.)
The defendant was indicted the last summer assizes, for a rape
upon the body of a child, then little more than six years old. And be-
cause the Lord Chief Baron Gilbert refused to admit the child as an A-^
evidence against him, he was acquitted.
But at the same assizes an indictment was found against him for
an assault with an intent to ravish the said child. And this indictment ^
i Tor the other opinions delivered in this case, see 1 Atk. Cb. Rep. 21.
& The practice of examining a witness on his voir dire as to his religions
belief was approved in Madden v. Catanach, 7 II. & N. 360 (1861). For the
contrary view, see Com. v. Smith, 2 Gray (Mass.) 526, 61 Am. n.
Lack of religious belief may also be shown by prior uoiarations of the
witness. Thurston v. Whitney, 2 Cush. (Mass.) 104 (1S52).
Hint.Ev.— S
130 WITNESSES (Ch. 2
coming now to be tried before Raymond, C. J., the same objection was
now taken by Comyns and Darnall, Serjeants, viz. that the girl being
now but seven years of age, could not be a witness : they insisted that
it had formerly been held, that none under twelve years of age could
be admitted to be a witness, and said that a child of six or seven years
of age, in point of reason and understanding, ought to be considered
as a lunatic or madman.
On the other side it was said, that in capital cases, which con-
cerned life, this objection might be allowed; but in cases of misde-
meanor only, as this was, such a witness might be admitted : they in-
sisted, that the objection went only to the credit of the witness; and
Hale's P. C. says, that the examination of one of the age of nine years
has been admitted: and a case at the Old Bailey 1698, was cited,
where upon such an indictment as this, Ward, Chief Baron, admitted
one to be a witness, who was under the age of ten years, after the child
had been examined about the nature of an oath, and 'had given a rea-
sonable account of it.
But Raymond, C. J., held, that there was no difference betwixt
offences capital and lesser offences, in this respect. And that a per-
son who could not be a witness in the one case, could not in the other.
The reason why the law prohibits the evidence of a child so young is,
because the child cannot be presumed to distinguish betwixt right and
wrong: no person has ever been admitted as a witness under the age
of nine years, and very seldom under ten. At the Old Bailey in
1704 this point was thoroughly debated in the case of one Steward,
who was indicted upon two indictments for rapes upon children. The
first was a child of ten years and ten months, and yet that child was
not admitted as a witness, before other evidence was given of strong
circumstances, as to the guilt of the defendant, and before the child
had given a good account of the nature of an oath. The second in-
dictment against Steward was attempted to be maintained by the evi-
dence of a child of between six and seven years of age: but it was
unanimously agreed, that a child so young could not be admitted to
be an evidence, and the child's testimony was rejected, without in-
quiring into any circumstances to give it credit. And it was merely
upon the authority of Hale's P. C. where it is said, that a child of
ten years of age may be a witness, that the other child of that age
was admitted to be a witness in the first indictment. And in the pres-
ent case, the child was refused to be admitted a witness. And there
not being evidence sufficient without her, the defendant was acquitted. 6
c In 1789, the following rule was announced in Brazier's Case, Leach,
Crown Cases, 237: "No testimony whatever can be legally received except
upon oath; and that an infant, though under the age of seven years, may be
sworn in a criminal prosecution, provided such infant appears, on strict
examination by the Court, to possess a sufficient knowledge of the nature
and consequences of an oath, for there is no precise or fixed rule as to the
time wit bin which infants are excluded from giving evidence; but their
admissibility depends upon the sense and reason they entertain of the dan-
SeC.l) COMPETENCY 131
HRONECK v. PEOPLE.
(Supreme Court of Illinois, 1890. 134 111. 139, 24 N. E. 861, 8 L. R. A. B87,
23 Am. St. Rep. 652.)
• Baker, J. 7 The plaintiff in error, John Hroneck, was indicted with
Frank Chapek, Frank Chleboun, and Rudolph Sevic for violation of
an act of the legislature of this state entitled "An act to regulate the
manufacture, transportation, use, and sale of explosives, and to pun-
ish an improper use of the same," approved Tune 16, 1887, and in force
July 1, 1887. Rev. St. 1889, c. 3S, §§ 54h-54n. The first count
charged the defendants with unlawfully making dynamite, with the
unlawful intention of destroying the lives of certain persons therein
named ; and in the five remaining counts the defendants were charged
successively in such several counts with manufacturing, compounding,
buying, selling, and procuring dynamite, with the same unlawful pur-
pose and intent. The defendant Hroneck was alone put upon trial, and
that trial resulted in a verdict of guilty, and fixing his punishment at
12 years' imprisonment in the penitentiary. Motions for a new trial
and in arrest of judgment were severally overruled, and the said de-
fendant was sentenced on the verdict. Numerous grounds are urged
for reversal, which we shall consider, substantially, in the order they
are made. * * *
Objection is made to the competency of Frank Chleboun, a witness
for the people, who was permitted to testify over the objection of the
defendant. He was examined upon his voir dire, and avowed his
belief in the existence of God and "a hereafter;" that he believed, if
he swore falsely, he would be punished under the criminal laws of the
state ; that he had never thought seriously of whether God would
punish him either in this world or the next, and had never considered
the question whether he would be punished for false swearing in any
other way than by that inflicted by the law. He had, it seems, no
religious belief or conviction of his accountability to the Supreme
Being, either in this world or in any after life. The test of the com-
petency of a witness in respect to religious belief, as generally held,
is, does the witness believe in God, and that he will punish him if he
swears falsely? It is stated by Rapalje in his Law of Witnesses
(section 11) that "the great weight of authority in this country now is
that it is immaterial whether the witness believes God's vengeance will
overtake him before or after death."
This doctrine was approved in Railroad Co. v. Rockafellow, 17 111.
ger and impiety of falsehood, which is to be collected from their answers te
questions propounded to them by the Court; but if they are found incompe
tent to take an oath, their testimony cannot be received. They (the Judges)
determined, therefore, that the information of the infant, which had b*vn
given in evidence in the present case, ought not to have been received."
7 Parts of opinion omitted.
132 WITNESSES (Ch. 2
541, where, after a consideration of the authorities, it was held that
all persons are competent to be sworn as witnesses who believe there is
a God, and that he will punish them, either in this world or the next,
if they swear falsely, and that a want of such belief rendered them
incompetent to take an oath as witnesses. This case, seemingly, over-
ruled the doctrine of the earlier case of Noble v. People, Breese, 54.
Without pausing here to determine whether the court erred in sub-
jecting the witness to an examination touching his religious belief,
(Rap. Wit. § 12, and cases cited,) it may be said that the better prac-
tice, and that which now prevails, forbids the examination of the wit-
ness in respect thereof on his voir dire. If there was error in this
regard, it was committed at the instance of the defendant, and in his
interest; and he cannot complain.
Returning to the question of the competency of the witness, the
rule seems to be as above stated, unless changed by constitutional pro-
vision or legislative enactment. The tendency of modern times by the
courts and in legislation is towards liberalizing the rule, and in many
jurisdictions' incompetency for the want of religious belief has been
abolished. See Rap. Wit. § 13, and Whart. Ev. § 395. Has the rule
announced by this court in Railroad Co. v. Rockafellow been changed
in this state? By section 3 of article 2 of the constitution of 1870, it
would seem that a radical change was effected in respect to the matter
under consideration. This section guaranties non-interference of the
state with the religious faith of its citizens. In Chase v. Cheney, 58
111. 509, 11 Am. Rep. 95, it was said: "The only exception to uncon-
trolled liberty is that acts of licentiousness shall not be excused, and
practices inconsistent with the peace and safety of the state shall not
be justified." The section provides: "No person shall be denied any
civil or political right, privilege, or capacity on account of his religious
opinions; but the liberty of conscience hereby secured shall not be
construed to dispense with oaths or affirmations, excuse acts of licen-
tiousness, or justify practices inconsistent with the peace or safety of
the state."
No religious belief is required to qualify a citizen to take an oath,
and no citizen can be excused from taking an oath or affirmation be-
cause of his religious belief. The liberty of conscience secured by
the constitution is not to be construed as dispensing with oaths or af-
firmations in cases where the same are required by law. No man,
because of his religious belief, is to be excused from taking the pre-
scribed oath of office before entering upon the discharge of the public
duty ; nor can he be permitted to testify because of such religious belief
or opinion except upon taking the oath, or making the affirmation, re-
quired by law. Now, as before the adoption of this provision, oaths
are to be taken, and affirmations made, whenever required by law ; but
the right to take such oath or make such affirmation, if such right be a
civil right, privilege, or capacity, cannot be denied to any citizen. It
Sec. 1) competency 133
is said that one who holds proscribed religious opinions is incompetent
— that is, has not the legal capacity — to testify. The incapacity, if it
exists, grows out of, and is based upon, his failure to hold certain re-
ligious beliefs and opinions in accord with the prevailing religious
opinions of the people ; and the contention is that he should not, by rea-
son of such incapacity, be permitted to testify, however great and im-
portant the interest at stake to himself, his family, his neighbor, or
the state.
It is clear from the authorities that the rule contended for does
not apply when the witness is testifying in his own behalf ; but if the
life, liberty, reputation, or property of his family or neighbor be in-
volved, or his testimony be necessary to the protection of society, he is,
under such rule, to be excluded from the privilege of testifying in
courts of justice because of such incapacity. If it exists at all, the
incapacity is created by law, and it is therefore a civil incapacity. The
constitution provides that no person shall be denied any civil or polit-
ical right, privilege, or capacity on account of his religious opinions.
In Bouvier's Law Dictionary, capacity is defined to be "ability, pow-
er, qualification, or competency of persons, natural or artificial, for
the performance of civil acts depending on their state or condition as
defined or fixed by law." It is also defined as follows : "Power ; com-
petency; qualification; ability, power, or qualification to do certain
acts." 2 Amer. & Eng. Cyclop. Law, 722. The obvious meaning of
the provision in the constitution is that whatever civil rights, privileges,
or capacities belong to or are enjoyed by citizens generally, shall not be
taken from or denied to any person on account of his religious opin-
ions.
As said by the supreme court of Kentucky in construing a similar
provision of the constitution of that state in Bush v. Com., 80 Ky. 244:
"It is a declaration of an absolute equality, which is violated when one
class of citizens is held to have the civil capacity to testify in a court
of justice because they entertain a certain opinion in regard to religion,
while another class is denied to possess that capacity because they do
not conform to the prescribed belief." It is manifest that, if the legis-
lature may prescribe the test of belief in rewards and punishments,
they may impose any other test or qualification that, in the judgment
of those entertaining the dominant belief, may be necessary to afford
the requisite sanction. In Perry's Case, 3 Grat. (Va.) 632, a like con-
clusion was reached in construing a constitutional provision that "all
men shall be free to profess, and by argument maintain, their opin-
ions in matters of religion ; and the same shall in no wise affect, dimin-
ish, or enlarge their civil capacities."
We are of the opinion that the effect of this constitutional provision
is to abrogate the rule which obtained in this state prior to the consti-
tution of 1870, and that there is no longer any test or qualification in
respect to religious opinion or belief, or want of the same, which af-
134 WITNESSES (Ch. 2
fects the competency of citizens to testify as witnesses in courts of
justice. It follows that there was no error in permitting the witness
to testify. * * *
Judgment affirmed. 8
REX v. WILLIAMS.
(Court of King's Bench at Nisi Prius, 1S36. 7 Car. & P. 320.)
The prisoner was indicted for the murder of William Williams, her
husband.
On the part of the prosecution, Priscilla Williams, a daughter of
the deceased and of the prisoner, aged eight years, was called as a
witness; and on her examination by the learned Judge, it appeared
that before the death of the deceased, which took place about sixteen
weeks before the trial, the death being on the 3rd of April, and the
trial on the 23rd of July, the witness never heard of God, or of a fu-
ture state of rewards and, punishments ; and that she never prayed,
nor knew the nature of an oath ; but that since the death of the de-
ceased she had been visited twice by a reverend clergyman, who had
given her some instruction as to the nature and obligation of an oath.
She said she should go to hell if she told a lie, and that hell was under
the kitchen grate; but she had still no intelligence as to religion or a
future state.
John Evans, for the prisoner. I submit that this witness ought not
to be examined ; for if it were sufficient that a witness should under-
stand the nature of an oath merely from information recently com-
municated, a clergyman might always be called to instruct a witness as
to the nature of an oath when the witness came into the box to be
examined on the trial.
Chilton, for the prosecution. It is every day's practice to put off
a trial in order that a witness may be instructed as to the nature of an
oath; and this was held in the case of Rex v. Wade, R. & M. C. C. 86.
PaTteson, J. I must be satisfied that this child feels the binding
obligation of an oath from the general course of her religious educa-
tion. The effect of the oath upon the conscience of the child should
arise from religious feelings of a permanent nature, and not merely
from instructions, confined to the nature of an oath, recently commu-
nicated to her for the purposes of this trial; and as it appears that,
previous to the happening of the circumstances to which this witness
comes to speak, she had had no religious education whatever, and had
s In most of the states this disqualification has been expressly removed by
statute. For the present state of the law in the various jurisdictions, see
note to State v. Washington, 42 L. R. A. 553 (1S97).
Sec. 1) COMPETENCY 135
never heard of a future state, and now has no real understanding on
the subject, I think that I must reject her testimony.
The child was not examined.
Verdict — Not guilty.
i>
WHEELER v. UNITED STATES.
(Supreme Court of United States, 1893. 159 U. S. 523, 16 S. Ct. 93. 40 L.
Ed. 244.)
Mr. Justice Brewer 10 delivered the opinion of the court.
On January 2, 1S95, George L,. Wheeler was by the Circuit Court
of the United States for the Eastern District of Texas adjudged guil-
ty of the crime of murder, and sentenced to be hanged; whereupon
he sued out this writ of error. * * *
The remaining objection is to the action of the court in permitting
the son of the deceased to testify. The homicide took place on June
12, 1894. and this boy was five years old on the 5th of July following.
The case was tried on December 21, at which time he was nearly five
and a half years of age. The boy, in reply to questions put to him
on his voir dire, said, among other things, that he knew the difference
between the truth and a lie ; that if he told a lie, the bad man would
get him, and that he was going to tell the truth. When further ask-
» Dent, J., in State v. Michael, 37 W. Va. 565, 16 S. E. 803, 19 L. R. A.
605 (1893):
"The judge appears to have purposely avoided any reference to a future
state, or of God, or any other question that would make known the religious
sentiment or feeling of the child, if she had any. And on the witness stand,
in answer to the question if her mother had ever taught her anything about
God or Christ, she replies, 'No,' and says, further, that she knows noth-
ing about God, except that he makes babies, and throws them down tc
the doctors — a falsehood that had evidently been taught to her, as her only
light on tbe existence of her Creator.
"Now in these, as in all her answers, she simply gives vent to her child-
ish prattle, and such things as have been told her to say. From none of
her answers can her religious or moral accountability for falsehood be
gathered. She knows nothing about God, nothing about Christ, has had no
religious training or instruction, is only five years of age, has never been
to school, can not read, does not know the letters of the alphabet, and seems
to have been greatly neglected by her parents, who are from the humbler
walks of life. And the prosecution, by failing to ask her questions con-
cerning the distinguishing element of the crime charged, admit her incom-
petency to testify concerning the same.
"They certainly recognized her incapacity to answer such question, and
for the same reason she was not a competent subject for a rigid cross-ex-
amination.
"Unless we throw open the doors to any child, however young, who can
talk and answer questions of simple form, and loading, and assume that
every child, from birth, knows the sanctity of an oath, we must draw the
line of incompetency, somewhere, and that line, as indicated by the wis-
dom of many decisions founded upon reason and justice, is that, where a
child is of such tender years and feeble intelligence as to have no ((incep-
tion of the religious or moral significance of an oath, it is not com] i
to testify."
io Part of opinion omitted.
136 WITNESSES (Ch. 2
ed what they would do with him in court if he told a lie, he replied
that they would put him in jail. He also said that his mother had
told him that morning to "tell no lie," and, in response to a question as
to what the clerk said to him when he held up his hand, he answered,
"Don't you tell no story." Other questions were asked as to his resi-
dence, his relationship to the deceased, and as to whether he had ever
been to school, to which latter inquiry he responded in the negative.
As the testimony is not all preserved in the record, we have before us
no inquiry as to the sufficiency of the testimony to uphold the verdict,
and are limited to the question of the competency of this witness.
That the boy was not by reason of his youth, as a matter of law,
absolutely disqualified as a witness is clear. While no one would
think of calling as a witness an infant only two or three years old,
there is no precise age which determines the question of competency.
This depends on the capacity and intelligence of the child, his ap-
preciation of the difference between truth and falsehood, as well as
of his duty to tell the former. The decision of this question rests
primarily with the trial judge, who sees the proposed witness, notices
his manner, his apparent possession or lack of intelligence, and may
resort to any examination which will tend to disclose his capacity and
intelligence, as well as his understanding of the obligations of an oath.
As many of these matters cannot be photographed into the record, the
decision of the trial judge will not be disturbed on review, unless
from that which is preserved it is clear that it was erroneous.
These rules have been settled by many decisions, and there seems to
be no dissent among the recent authorities. In Brasier's Case, 1
Leach, Crown Cas. 199, it is stated that the question was submitted
to the twelve judges, and that they were unanimously of the opinion
"that an infant, though under the age of seven year's, may be sworn
in a criminal prosecution, provided such infant appears, on strict ex-
amination by the court, to possess a sufficient knowledge of the nature
and consequences of an oath ; for there is no precise or fixed rule as
to the time within which infants are excluded from giving evidence,
but their admissibility depends upon the sense and reason they enter-
tain of the danger and impiety of falsehood, which is to be collected
from their answers to questions propounded to them by the court."
See, also, 1 Greenl. Ev. § 367; 1 Whart. Ev. §§ 398-400; 1 Best,
Ev. §§ 155, 156; State v. Juneau, 88 Wis. 180, 59 N. W. 580, 24 L.
R. A. 857, 43 Am. St. Rep. 877; Ridenhour v. Railway Co., 102 Mo.
270, 13 S. W. 889, and 14 S. W. 760; McGuff v. State, 88 Ala. 147,
7 South. 35, 16 Am. St. Rep. 25 ; State v. Eevy, 23 Minn. 104, 23 Am.
Rep. 678; Davidson v. State, 39 Tex. 129; Com. v. Mullins, 2 Allen
(Mass.) 295; Peterson v. State, 47 Ga. 524; State v. Edwards, 79 \ T .
C. 648; State v. Jackson, 9 Or. 457; Blackwell v. State, 11 Ind. 196.
These principles and authorities are decisive in this case. So far as
can be judged from the not very extended examination which is found
in the record, the boy was intelligent, understood the difference be-
Sec. 1) competency 137
tween truth and falsehood, and the consequences of telling the lat-
ter, and also what was required by the oath which he had taken. At
any rate, the contrary does not appear. Of course, care must be tak-
en by the trial judge, especially where, as in this case, the question is
one of life or death. On the other hand, to exclude from the witness
stand one who shows himself capable of understanding the differ-
ence between truth and falsehood, and who does not appear to have
been simply taught to tell a story, would sometimes result in staying
the hand of justice.
We think that, under the circumstances of this case, the disclosures
on the voir dire were sufficient to authorize the decision that the wit-
ness was competent, and therefore there was no error in admitting his
testimony. These being the only questions in the record, the judg-
ment must be affirmed.
Judgment affirmed. 11
HARTFORD v. PALMER.
(Supreme Court of New York, 1S19. 16 Johns. 143.)
In error, on certiorari to a Justice's Court.
In this case a verdict and judgment were rendered for the defendant
below, on which the plaintiff below brought a certiorari ; and the only
question arising on the return was, whether the justice ought to have
refused to swear a witness, who was, when offered to testify, in a state
of intoxication.
Per Curiam. We are of opinion, that the justice decided correctly
in refusing to swear the witness. Peake lays down this general prop-
osition, which cannot fail to command the assent of all mankind:
"That all persons who are examined as witnesses, must be fully pos-
sessed of their understanding, that is, such an understanding as enables
them to retain in memory the events of which they have been witnesses,
and gives them a knowledge of right and wrong; that, therefore, idiots
and lunatics, while under the influence of their malady, not possessing
this share of understanding, are excluded." This principle, neces-
sarily, excludes persons from testifying, who are besotted with intox-
ication, at the time they are offered as witnesses ; for it is a temporary
ii See State v. Washington, 49 La. Ann. 1C02, 22 South. 841, 42 L. It. A.
553 (1S97), discriminating between intelligence and religious belief in the
case of a young child.
Under most of the statutes it is sufficient if a child lias the necessary in-
telligence and appreciates the moral duty to tell the truth. He need not
fully understand the nature of an oath, or have any particular religious
belief. Clark v. Finnegan, 127 Iowa, G44, 103 N. W. 970 (1905); Com. v.\
Funnan, 211 Pa. 519, GO Atl. 10S9, 107 Am. St. Rep. 594 (1905); State v.
Reddington, 7 S. D. 368, 64 N. W. 170 (1895).
A child, who did not understand the nature of an oath or the consequences
of falsehoodi was held incompetent in State v. Greenberg, 87 N. .1. Law, 120,
93 Atl. 684 (1915).
138 WITNESSES (Ch. 2
derangement of the mind ; and it is impossible for such men to have
such a memory of events, of which they may have had a knowledge, as
to be able to present them, fairly and faithfully, to those who are to
decide upon contested facts. A present and existing intoxication,
to a considerable degree, utterly disqualifies the person so affected, to
narrate facts and events in a way at all to be relied on. It would, we
think, be profaning the sanctity of an oath, to tender it to a man who
had no present sense of the obligations it imposed. Indeed, it would
be a scandal to the administration of justice, to allow, for a moment,
the rights of individuals to be jeopardized by the testimony of any
man laboring under the beastly sin of drunkenness. The return does
not state the degree of intoxication which the justice considered suf-
ficient to exclude the witness ; but we are to presume, that it was evi-
dent and palpable; and every court must necessarily have the power
to decide, from their own view of the situation of the witness offered,
whether he be intoxicated to such a degree, as that he ought not to
be heard; nor can this lead to any improper consequences; for if
the witness was not so intoxicated, the justice would be responsible in
an action for a false return. We cannot withhold our approbation of
the firmness which the magistrate has evinced on this occasion, in
refusing to administer an oath to a witness thus circumstanced.
Judgment affirmed.
REG. v. HILL.
(Court of Criminal Appeals, 1851. 5 Cox, Cr. Cas. 259.)
This prisoner was tried before me, assisted by my Brother Cress-
well, at the last February Sittings of the Central Criminal Court, for
the manslaughter of Moses James Barnes. He was convicted, but a
question was reserved for the opinion of the Court of Appeal as to
the propriety of having admitted a witness of the name of Richard
Donelly on the part of the prosecution.
The deceased and the witness were both lunatic patients in Mr.
Armstrong's Asylum, at Camberwell, at the time of the supposed
injury, and they were at that time placed in a ward called the in-
firmary. It appeared that a single sane attendant (the prisoner) had
the charge of this ward, in which as many as nine patients slept, and
that he was assisted by three of the patients of whom the witness Don-
elly was one. * * *
Donelly was then called, and, before being sworn, was examined by
the prisoner's counsel. He said "I am fully aware I have a spirit,
and 20,000 of them; they are not all mine. I must inquire. I can
where I am. I know which are mine. Those that ascend from my
stomach and my head, and also those in my ears. I don't know how
many they are. The flesh creates spirits by the palpitation of the
nerves and the rheumatics ; all are now in my body and round my
Sec. 1) COMPETENCY 139
head; they speak to me incessantly, particularly at right. That spirits
are immortal I am taught by my religion from my childhood. No mat-
ter how faith, goes, all live after my death, those that belong to me
and those that do not. Satan lives after my death and so does the
living God."
After more of this kind he added: "They speak to me instantly;
they are speaking to me now; they are not separate from me; they
are round me speaking to me now ; but I can't be a spirit, for I am
flesh and blood. They can go in and out through walls and places
which I cannot. I go to the grave; they live hereafter; I do not,
unless, indeed, I've a gift different from my father and mother that
I don't know. After death my spirit will ascend to Heaven or remain
in Purgatory. I can prove Purgatory. I am a Roman Catholic. I at-
tended Moorfields, Chelsea Chapel, and many other chapels round Lon-
don. I believe Purgatory ; I am taught' that in my childhood and in-
fancy. I know what it is to take an oath. My catechism, taught me
from my infancy, tells me when it is lawful to swear ; it is when God's
honour, our own or our neighbor's good require it. When man swears
he does it in justifying his neighbor on a prayer book or obligation.
My ability evades me while I am speaking, for the spirit ascends to my
head. When I swear I appeal to the Almighty. It is perjury, the
breaking of a lawful oath or taking an unlawful one; he that does it
will go to hell for all eternity."
He was then sworn, and gave a perfectly collected and rational ac-
count of a transaction which he reported himself to have witnessed.
He was in some doubt as to the day of the week on which it took place,
and on cross-examination said, "These creatures insist upon it it was
Tuesday night, and I think it was Monday," whereupon he was asked,
"Is what you have told us what the spirits told you, or what you recol-
lected without the spirits?" and he said, "No; the spirits assist me in
speaking of the date. I thought it was Monday, and they told me it
was Christmas Eve, Tuesday; but I was an eye-witness, an ocular
witness to the fall to the ground."
The question for the opinion of the court is, whether this witness was
competent. Sentence has not been passed, but is postponed until this
question has been decided, and the prisoner remains in custody.
J. T. Coleridge.
April 25, 1851.
********
Lord Campbell, C. J. 12 I am glad this case has been reserved, for
the matter is of great importance, and ought to be decided. However,
after a very learned argument, which I have heard with a great deal
of pleasure, I entertain no doubt that the rule is as was laid down
by Parke, B., in the unreported case that has been referred to, that
wherever a delusion of an insane character exists in any person who
12 Statement condensed.
1-10 WITNESSES (Ch. 2
is called as a witness, it is for the judge to determine whether the per-
son so called has a sufficient sense of religion in his mind, and suffi-
cient understanding of the nature of an oath, for the Jury to decide
what amount of credit they will give to his testimony. Various au-
thorities have been referred to, which lay down the law, that a person
non compos mentis is not an admissible witness. But in what sense
is the expression non compos mentis employed? If a person be s v o
to such an extent as not to understand the nature of an oath, he is
not admissible. But a person subject to a considerable amount of
insane delusion, may yet be under the sanction of an oath, and ca-
pable of giving very material evidence upon the subject-matter under
consideration. The just investigation of the truth requires such a
course as has been pointed out to be pursued, and in the peculiar cir-
cumstances of this case, I should have adopted the course which was
taken at the trial. Nothing could be stronger than the language of
the medical witnesses in this case, to show that the lunatic might safe-
ly be admitted as a witness. It has been contended that the evidence
of every monomaniac must be rejected. But that rule would be found
at times very inconvenient for the innocent as well as for the guilty.
The proper test must always be, does the lunatic understand what he
is saying, and does he understand the obligation of an oath? The lu :
natic may be examined himself, that his state of mind may be discov-
ered, and witnesses may be adduced to show in what state of sanity or
insanity he actually is; still, if he can stand the test proposed, the jury
must determine all the rest. In a lunatic asylum, the patients are
often the only witnesses to outrages upon themselves and others, and
there would be impunity for offences committed in such places, if the
only persons who can give information were not to be heard.
Alderson, B. I quite agree that it is for the judge to say whether
the person called as a witness understands the sanction of an oath, and
for the jury to say whether they believe his evidence. Here the account
of the lunatic himself, and the evidence of the medical witnesses, show
that he was properly received as a witness.
Coleridge, J. This is an important case. We have been fur-
nished, during the argument, with rules drawn from the older author-
ities against the admissibility of a lunatic witness, which are stated
without any qualification. It was not necessary for the decision of
those cases that the rule should be qualified, and in former times the
question of competency was considered upon much narrower grounds
than it is at present. The evidence in this case left the matter thus;
there was a disease upon the mind of the witness, operating upon par-
ticular subjects, of which the transaction of which he came to speak
was not one. He was perfectly sane upon all other things than the
particular subject of his delusion. As far as memory was concerned,
he was in the position of ordinary persons, and upon religious matters
he was remarkably well instructed, so as to understand perfectly the
Sec. 1) COMPETENCY l* 1
nature and obligation of an oath. If it had appeared, upon his evi-
dence, that his impressions of external objects were so tainted by his
delusion that they could not be acted upon, that would have been a
ground for the jury to reject or give little effect to his evidence. But
this was a matter for them to determine.
Platt, B., concurred.
Talfourd, J. If the proposition, that a person suffering under an
insane delusion cannot be a witness, were maintained to the fullest ex-
tent, every man subject to the most innocent unreal fancy would be
excluded. Martin Luther believed that he had had a personal conflict
with the devil; Dr. Johnson was persuaded that he had heard his
mother speak to him after death. In every case the judge must deter-
mine, according to the circumstances and extent of the delusion. Un-
less judgment and discrimination be applied to each particular case,
there may be the most disastrous consequences.
Conviction affirmed. 13
II. Infamy 14
E.
CLANCEY'S CASE.
(House of Lords, 1696. Fortes. 208.) v
Upon a debate in the House of Lords December 15, 1696, relating
to the bill for attainting Sir John Fenwick of high treason, the opinion
of all the Judges then present, viz. Holt, Chief Justice of the King's:
Bench, Treby, Chief Justice of the Common Pleas, Ward, Chief Baron
of the Exchequer, Justice Turton, Justice Powell, Justice Samuel Eyre,
Baron Powys, and Baron Blencow, was asked whether Clancey (hav-
13 Same rule applied in District of Columbia v. Armes, 107 U. S. 519, 2
Sup. Ct. 840, 27 L. Ed. 618 (18S2) ; Coleman v. Commonwealth. 25 Grat.
(Va.) S65, IS Am. Rep. 71 (1S74) ; State v. Herring, 268 Mo. 514, 1SS S. W.
169 (1916).
For instances where the witness was held to be too lacking in understand-
ing, see Udv v. Stewart, 10 Ontario, 591 (1SS6) ; State v. Meyers, 46 Neb.
152, 64 N. W. 697, 37 L. R. A. 423 (1S95).
Some courts incline to the view that the competency of a witness is to be
determined by his mental condition at the time he is offered, ami that tin-
state of his mind at the time of the transaction which he relates affects his
credibility rather than his competency. Sarbach v. Jones, 20 Kan. 497 (187
For the presumption arising from an adjudication of insanity, see State
v. Herring, 268 Mo. 514, 188 S. W. 169 (1916).
i* This disqualification has been removed by statute in many of the states.
e. g., N. Y. Code of Civil Procedure, § 832: "A person, who- has been convict-
ed of a crime or misdemeanor, is, notwithstanding, a competent witness in a
civil or criminal action or special proceeding; -but the conviction may be
proved for the purpose of affecting the weight of his testimony, either by the
record or by his cross-examination, upon which he must answer any ques-
tion relevant to that inquiry; and the party cross-exa minim,' him is not con-
cluded, by his answer to such a question."
9U
142 WITNESSES (Ch. 2
ing been convicted of an high, misdemeanor, of which the record 15 was
produced) in actually giving George Porter 300 guineas, and promising
more, to withdraw himself into France, thereby to prevent his further
evidence against the Lord Aylesbury, the Lord Montgomery and Sir
John Fen wick, for which he had judgment to stand in the pillory (and
did so stand), might be admitted a witness, either
First, to confront George Porter in his evidence before the House
of Lords.
Secondly, or to be admitted a witness in any other case.
As to the first, we were all of opinion he could not, it being utterly
improper to permit him, after his conviction, to come and confront
and give evidence against the very person, upon whose evidence he
was before convicted by verdict, and to purge himself of that very
crime of which he was so convicted.
And as to the second, we were all of opinion (except Holt, Chief
Justice, who did somewhat hesitate, yet said upon further considera-
tion he might also agree) that Clancey could never after be admitted a
witness in any case ; for that he was become infamous, not that merely
standing in the pillory or -judgment so to- stand, did of itself make a
man infamous to such a degree as never after to be admitted a wit-
ness (tho' Co. Lit. 6 b, does seem to intimate as much) ; for, if a Judge
should sentence a man to stand in the pillory for a trespass, a riot, a
libel, or seditious words, and he should so stand, yet this would not
make him infamous, so as never to be admitted a witness ; because the
crimes in their own nature are not perfectly infamous, but rather ex-
orbitant in point of rashness and misbehaviour : but he that has been
convicted of, or stood in the pillory for perjury or forgery, is truly
' infamous. And so is this Clancey; for his crime was a base and
clandestine endeavour to obstruct the publick justice of the kingdom,
not by discoursing or arguing with a witness, or endeavouring to con-
vince him with reason ; but by downright bribing and corrupting him
with money: which no man would attempt but a base, mean and in-
ir> In Rex v. Inhabitants of Castell Careinion, 8 East, 77 (1806), the court
below had rejected a witness on his admission in court that he had been
convicted of a felony.
Lord Ellenborough, C. J.: "We must take it upon this case that the evi-
dence was objected to at the sessions by the party interested in repelling
it, and there cannot be the least doubt that the objection was well founded.
The evidence went to affect the rights of third persons, namely, the litigant
parishes; for the pauper himself is no party to the cause in court. "Wheth-
er or not the witness were convicted of the felony would appear by the rec-
ord: and it cannot be seriously argued that a record can be proved by the
admission of any witness. He may have mistaken what passed in court, and
may have been ordered on his knees for a misdemeanor: This can only
be known by the record: and there is no authority for admitting parol evi-
dence of it."
Lawrence, J.: "The books are uniform in requiring the production of the
record to prove a witness convicted of an offense. 2 Hawk. c. 46, § 20; 3
Com. Dig. Evidence, 280 ; 5 Com. Dig. Testmoigne, 510 ; Bull. N. P. 292."
And so in Commonwealth v. Green, 17 Mass. 515 (1822), where the question:
arose on a motion for a new trial.
Sec. 1) COMPETENCY li3
famous rascal; and that to' prevent the discovery and punishment of
certain criminals, who had been conspiring against the publick safety
of the kingdom, as Porter had before upon his oath affirmed. And
this was a crime not merely of misbehaviour, like a riot or libel, but
even of corruption relating to evidence and testimony, and it were
against reason to admit that man as a good witness, who has been
convicted of bribing and corrupting of a witness .as 6uch. 18
PENDOCK v. MacKENDER.
(Court of Common Pleas, 1755. 2 Wils. IS.)
This is an ejectment for lands in Kent; the substance of the case
reserved at the assises for the opinion of the court is shortly this:
That J. M. being seised of the lands in question, by his will executed in
September, 1750, devised the lands to the defendant ; that there were
three witnesses to the will, viz. Thomas Turner, Jos. Jeffery, and an-
other; that Jos. Jeffery, one of the witnesses before the time of at-
testation thereof, was indicted, tried and convicted for stealing a sheep,
and was found guilty to the value of ten pence, and had judgment of
whipping.
The plaintiff claims as heir at law to the testator, and therefore the
single question is, whether one convicted and whipped for petit lar-
ceny be a competent witness, within the statute of frauds and per-
juries:
After three arguments at the bar the whole court were clearly of
opinion that Joseph Jeffery was not a competent witness, and laid it
down as a rule, that it is the crime that creates the infamy, and takes
away a man's competency, and not the punishment for it; and it is
absurd and ridiculous to say it is the punishment that creates the n>
famy.
The pillory has always been look'd upon as infamous, and to take
away a man's competency as a witness ; but to put one case (amongst
many that might be put) to shew this is a very absurd notion, is suffi-
cient : If a man was convicted upon the Stat. 4 W. & M. against deer-
stealing, there is a penalty of £30. to be levied by distress, and if he
has no distress, he is to be put in the pillory; so that if the pillory be
infamous, the person convicted (according to this notion) will be so,
if he has not £30. but if he has £30. he will not be infamous.
In the present case both the crime and punishment are infamous;
and he that steals a penny has as wicke'u a mind as he that steals a
. larger sum, if not a more wicked mind, for he has the less tempta-
i6 The affidavit of an infamous person may be received, where required
for his own protection, but not to support a charge by him. Res v. Davis,
5 Mod. 74 (1696); Walker v. Kearney, 2 Strange, 114S (1711).
144 WITNESSES (Ch. 2
tion ; petit larceny is felony, 1 Hawk. 95, § 36. And no case has
been cited where a person convicted thereof was ever admitted to be
a witness. Judgment for the plaintiff per totam curiam.
THE KING v. PRIDDLE.
(Nisi Prius, 1787. Leach, Cr. Cas. 442.)
William Priddle, Robert Holloway, and Stephen Stephens, were
convicted at the Old Bailey in April Session, 1787, of conspiracy;
and sentenced to pay a fine of 6s. 8d. each, and to be imprisoned in
his Majesty's gaol of Newgate, viz. William Priddle for the term of
two years, and Robert Holloway and Stephen Stephens for the term
of eighteen months.
During the course of their confinement George Crossley, against
whom they had been convicted of conspiring, was indicted at Hick's
Hall for wilful and corrupt perjury; and the indictment being re-
moved into the Court of King's Bench, came on to be tried before Mr.
Justice Buller, at the sittings at Westminster after Trinity Term 1787.
At the trial, William Priddle was produced as a witness on the
part of the prosecution ; and being examined on the voir dire, he
acknowledged that he had been convicted of the conspiracy above-
mentioned, and was then brought up under a habeas corpus from his
confinement for that offence.
The defendant's counsel, objected to his being examined, and sub-
mitted to the Court' that a conviction of conspiracy rendered the par-
ty infamous, and destroyed his competency as a witness.
Mr. Justice BullEr. Conspiracy is a crime of a blacker dye than
barratry, and the testimony of a person convicted of barratry has been
rejected. It is now settled, that it is the infamy of the crime which
destroys the competency, and not the nature or mode of punishment.
A conviction therefore of any offence which is comprehended under
the denomination of crimen falsi, destroys the competency of the per-
son convicted, as perjury, forgery by the common law, &c.
The testimony of the witness was rejected. 17
« Sir William Scott, in Ville de Varsovie, 2 Dodson, 174 (1817): "The
crimen falsi has nowhere been accurately defined ; nor the species of it
authoritatively enumerated. There are chasms in the law that must be
filled up by those to whom the law has more immediately confided a dis-
cretionary judgment upon such points. If I find an actual case in which a
conspiracy to cheat has been held to carry with it this consequence, it is
my duty to apply it to one that Calls directly under the same class, though
not resembling it in all circumstances. But I find no such actual case (and
certainly I have not been able to do so), then looking to what has been the
inclination of the courts in later times, rather to narrow the ancient in-
capacity of witnesses than to open the door still wider; looking to the
variation which the law seems to have undergone in the consideration of
very eminent judges, at the cautious hesitation of opinion with which this
subject has been treated by the highest authorities, I do not find myself en-
Sec. 1) COMPETENCY 145
FAUNCE v. PEOPLE.
(Supreme Court of Illinois, 1S69. 51 111. 311.)
Mr. Justice Walker 18 delivered the opinion of the Court:
The record shows that plaintiff in error was indicted jointly with
Mrs. Stephens, for receiving stolen goods. There are no questions
presented upon the pleadings in the case, but a number of errors are
assigned on the various rulings of the court. It is first urged, that
the court below erred in permitting Moore, who had been convicted
of stealing the goods, which the accused were charged with concealing,
but who had not been sentenced, to testify against plaintiff in error.
Plaintiff's attorney admits, that at the common law there must be a
verdict of guilty followed by a judgment, to render a party incompe-
tent to testify, but insists that the rule has been changed by our statute.
The 235th section of the criminal code, (Gross' Stat. 218) declares, that
each and every person convicted of any of the crimes therein enu- — -
merated, of which larceny is one, shall be deemed infamous, and shall
forever thereafter be rendered incapable of holding any office of honor,
trust or profit, of voting at any election, of serving as a juror and of
giving testimony. 19
This presents the question, what is a conviction? Is it the verdict of
guilty, or is it the sentence or judgment rendered on such a verdict?
So far as our knowledge of the practice extends under this section
since its adoption, the construction has been uniform, that it is the judg-
ment on the verdict of guilty which renders the accused infamous and
disqualifies him from testifying as a witness. And such long and
uniform construction by the courts and the bar, is entitled to no small
weight in the consideration of such a question. Had serious doubts
of the correctness of such a construction existed, we must conclude
that the question would long since have been presented to this court
for determination.
A reference to the eighth section, art. 4, of our constitution, will
show the construction the framers of that instrument placed on the
term "conviction." After conferring upon the governor the power to
grant reprieves, commutations and pardons after conviction, for all
offenses except treason and cases of impeachment, it declares that "he
shall, biennially, communicate to the general assembly each case of
reprieve, commutation or pardon granted, stating the name of the
convict, the crime for which he was convicted, the sentence and its
titled to say that the affidavit of this person ought to be rejected in this
court, as being clearly inadmissible in all courts whatsoever."
See, also, Schuylkill v. Copley, 67 Pa. 3SC, 5 Am. Rep. 4 11 (1871).
is Tart of opinion omitted.
i9 For the present statute removing the disability, see section 420, c.
Hurd's Rev. St. 1913.
IIINT.EV.— 10
146 WITNESSES (Cb. 2
date, and the date of commutation, pardon or reprieve." This provi-
vTsion manifestly contemplates a judgment or sentence as necessary to
a conviction, or why require, in each case of conviction and reprieve,
commutation or pardon, to report the sentence and its date? If the
verdict of guilty constituted the conviction, they would not have re-
quired in every case the sentence and its date to have been communi-
cated to the general assembly. They, no doubt, acted upon the uniform
construction given to the statute above referred to, which was then
and had long been in force.
An examination of the adjudged cases in the various states of the
Union, where substantially the same laws are in force, will show that
it is not the commission of the crime, nor the verdict of guilty, nor the
punishment, nor the infamous nature of the punishment, but the final
judgment of the court that renders the culprit incompetent. It is
true, that writers and judges have loosely said, that a party is convicted
on the finding of a verdict against him. 1% is true, in a sense, that
he has been convicted by the jury, but not until the judgment is ren-
dered is he convicted by the law ; and the statute only, like the common,
law, refers to the conviction imposed by the law. We can discover
from this section no intention to change the common law rule. And in
a matter of such grave import we should have to see such intention
reasonably well expressed before we could give the construction con-
tended for by plaintiff in error. * * *
Judgment affirmed. 20
LOGAN v. UNITED STATES.
(Supreme Court of the United States, 1S92. 144 U. S. 263, 12 Sup. Ct. 617,
36 L. Ed. 429.)
Error to the Circuit Court of the United States for the Northern
district of Texas to review a conviction on a charge of murder.
Mr. Justice Gray. 21 * * * In support of the objection to the com-
petency of the two witnesses who had been previously convicted and
sentenced for felony, — the one in North Carolina, and the other in
Texas, — the plaintiffs in error relied on article 730 of the Texas Code
of Criminal Procedure of 1879, which makes incompetent to testify
in criminal cases ''all persons who have been or may be convicted of
felony in this state, or in any other jurisdiction, unless such convic-
20 Lord Mansfield in Lee v. Gansel, 1 Cowper, 1 (1774): "An affidavit of
Lee was offered to be read. Objected, that he stood convicted of perjury, and
the conviction was produced. But, per Lord Mansfield, a conviction upon a
charge of perjury is not sufficient, unless followed by a judgment. I know
of no case, where a conviction alone has been an objection ; because, upon
a motion in arrest of judgment, it may be quashed."
So an unconvicted accomplice is not disqualified: Rex v. Teal, 11 East,
307 (1809; ; Byrd v. Com., 2 Va. Cas. 490 (1826), leading case in United States.
21 Statement and part of opinion omitted.
Sec. 1) COMPETENCE 147
tion has been legally set aside, or unless the convict has been legally-
pardoned for the crime of which he was convicted."
By an act of the congress of the republic of Texas of December
20, 1836, § 41, "the common law of England, as now practiced and un-
derstood, shall, in its application to juries and to evidence, be followed
and practiced by the courts of this republic, so far as the same may
not be inconsistent with this act, or any other law passed by this con-
gress." 1 Laws of Republic of Texas, (Ed. 1838,) 156. That act was
in force at the time of the admission of Texas into the Union, in 1845.
The first act of the state of Texas on the incompetency of witnesses
by reason of conviction of crime appears to have been the statute of
February 15, 185S, c. 151, by which all persons convicted of felony
in Texas or elsewhere were made incompetent to testify in criminal ac-
tions, notwithstanding a pardon, unless their competency to testify had
been specifically restored. Gen. Laws 7th Leg. Tex. 242 ; Oldham & W.
Dig. 640. That provision was afterwards put in the shape in which it
stands in the Code of 1879, above cited. -
The question whether the existing statute of the state of Texas upon
this subject is applicable to criminal trials in the courts of the United
States held within the state depends upon the construction and effect
of section 858 22 of the Revised Statutes of the United States. * * *
For the reasons above stated, the provision of section 858 of the
Revised Statutes, that "the laws of the state in which the court is held
shall be the rules of decision as to the competency of witnesses in the
courts of the United States in trials at common law and in equity and
admiralty," has no application to criminal trials ; and, therefore, the
competency of witnesses in criminal trials in the courts of the United
States held within the state of Texas is not governed by a statute of
the state which was first enacted in 1858, but, except so far as con-
gress has made specific provisions upon the subject, is governed by
the common law, 23 which, as has been seen, was the law of Texas be-
fore the passage of that statute, and at the time of the admission of
Texas into the Union as a state.
At common law, and on general principles of jurisprudence, when
not controlled by express statute giving effect within the state which
enacts it to a conviction and sentence in another state, such conviction
and sentence can have no effect, by way of penalty, or of personal dis-
ability or disqualification, beyond the limits of the state in which the
judgment is rendered. Wisconsin v. Insurance Co., 127 U. S. 265, 8
Sup. Ct. 1370, 32 L. Ed. 239; Com. v. Green, 17 Mass. 515; Sims v.
Sims, 75 N. Y. 466; Trust Co. v. Gleason, 77 N. Y. 400, 33 Am. Rep.
22 This statute has been so amended as to expressly limit it to civil cases.
See post, p. lG'J.
-a For the reasoning by which this conclusion was reached, see omitted
parts of the opinion and United States v. Reid, 12 How. 361, 13 L. Ed. 1U2.S
(1S51).
148 WITNESSES (Ch. 2
632 ; Story, Confl. Laws, § 92 ; 1 Greenl. Ev. § 376. It follows that
the conviction of Martin in North Carolina did not make him incom-
petent to testify on the trial of this case. 24
The competency of Spear to testify is equally clear. He was con-
victed and sentenced in Texas; and the full pardon of the governor
of the state, although granted after he had served out his term of im-
prisonment, thenceforth took away all disqualifications as a witness,
and restored his competency to testify to any facts within his knowl-
edge, even if they came to his knowledge before his disqualification
had been removed by the pardon. Boyd v. United States, 142 U. S.
450, 12 Sup. Ct. 292, 35 L. Ed. 1077 ; United States v. Jones, (before
Mr. Justice Thompson,) 2 Wheeler, Crim. Cas. 451, 461 ; Hunnicutt v.
State, 18 Tex. App. 498, 51 Am. Rep. 330; Thornton v. State, 20 Tex.
App. 519.
Whether the conviction of either witness was admissible to affect
his credibility is not before, us, because the ruling on that question
was in favor of the plaintiffs in error. * * *
Judgment reversed (on other grounds).
ROSEN et al. v. UNITED STATES.
PAKAS v. SAME.
(Supreme Court of the United States, 1918. 245 U. S. 467, 38 Sup. Ct. 148,
62 L. Ed. 406.)
Mr. Justice Clarke 25 delivered the opinion of the Court.
These two cases present precisely the same questions for decision.
They were argued and will be decided together.
In No. 365 Rosen and Wagner were indicted in the District Court
of the United States for the Eastern District of New York with one
Broder for conspiring to buy and receive certain checks and letters
which had been stolen from "duly authorized depositories of United
States mail matter," and which were known to the accused to have
been so stolen. Broder pleaded guilty, and when he was afterwards
called as a witness for the government the objection was made that he
was not competent to testify for the reason that, as was admitted by
the government, he had theretofore pleaded guilty to the crime of
forgery in the second degree, in the Court of General Sessions, in the
county and state of New York, had been sentenced to imprisonment,
and had served his sentence. The objection was overruled and Broder
was permitted to testify. This ruling was assigned as error in the
24 That the conviction of a person by a federal court sitting in the same
state does Dot disqualify him as a witness in the state court, see Samuels
\ v. Com., 110 Va. 901, 66 S. E. 222, 19 Ann. Cas. 380 (1909).
26 Part of opinion omitted.
Sec. 1) COMPETENCY 1.49
Circuit Court of Appeals, where it was affirmed, and it is now as-
signed as error in this court. * * *
For the validity of the claim that Broder was disqualified as a wit-
ness by his sentence for the crime of forgery, the plaintiffs in erroi
rely upon United States v. Reid et al., 12 How. 361, 13 L. Ed. 1023,
decided in 1851. In that case it was held that the competency of wit-
nesses in criminal trials in United States courts must be determined
by the rules of evidence which were in force in the respective states
when the Judiciary Act of 1789 was passed, and the argument in this
case is, that by the common law as it was administered in New York
in 1789 a person found guilty of forgery and sentenced, was thereby
rendered incompetent as a witness until pardoned, and that, there-
fore, the objection to Broder should have been sustained.
While the decision in United States v. Reid, supra, has not been
specifically overruled, its authority must be regarded as seriously shak-
en by the decisions in Logan v. United States, 144 U. S. 263-301, 12
Sup. Ct. 617, 36 L. Ed. 429, and in Benson v. United States, 146 U.
S. 325, 13 Sup. Ct. 60, 36 L. Ed. 991.
The Benson Case differed from the Reid Case only in that in the
former the witness whose competency was objected to was called by
the government while in the latter he was called by the defendant.
The testimony of the witness was admitted in the one case but it was
rejected in the other, and both judgments were affirmed by this court
— however forty years had intervened between the two trials. In the
Benson Case , decided in 1891. this court, after determining that the
Reid Case was not decisive of it, proceeded to examine the question
then before it "in the light of general authority and of sound reason,"
and after pointing out the great change in the preceding fifty years
in the disposition of courts to hear witnesses rather than to exclude
them, a change "which was wrought partially by legislation and par-
tially by judicial construction," and how "the merely technical bar-
riers which excluded witnesses from the stand had been removed,"
proceeded to dispose of the case quite without reference to the com-
mon-law practice, which it was claimed should rule it.
Accepting as we do the authority of the later, the Benson Case,
rather than that of the earlier decision, we shall dispose of the first
question in this case, "in the light of general authority and of sound
reason."
In the almost twenty years which have elapsed since the decision
of the Benson Case, the disposition of courts and of legislative bodies
to remove disabilities from witnesses has continued, as that decision
shows it had been going forward before, under dominance of the con-
viction of our time that the truth is more likely to be arrived at by
hearing the testimony of all persons of competent understanding who
may seem to have knowledge of the facts involved in a ease, leaving
the credit and weight of such testimony to be determined by the jury
or by the court, rather than by rejecting witnesses as incompetent, with
150 WITNESSES (Ch. 2
the result that this principle has come to be widely, almost universally,
accepted in this country and in Great Britain.
Since the decision in the Benson Case we have significant evidence
of the trend of congressional opinion upon this subject in the removal
of the disability of witnesses convicted of perjury, R. S. 5392 (Comp.
St. 1916, § 10295), by the enactment of the federal Criminal Code in
1909 with this provision omitted and section 5392 repealed. This is
significant, because the disability to testify, of persons convicted of
perjury, survived in some jurisdictions much longer than many of the
other common-law disabilities, for the reason that the offense concerns
directly the giving of testimony in a court of justice, and conviction
of it was accepted as showing a greater disregard for the truth than
it was thought should be implied from a conviction of other crime.
Satisfied as we are that the legislation and the very great weight
of judicial authority which have developed in support of this modern
rule, especially as applied to the competency of witnesses convicted of
crime, proceed upon sound principle, we conclude that the dead hand
of the common-law rule of 1789 should no longer be applied to such
cases as we have here, and that the ruling of the lower courts on this
first claim of error should be approved. * * *
Affirmed.
Mr. Justice Van Devanter and Mr. Justice McREynolds dissent
from so much of the opinion as departs from the rule settled in United
States v. Reid and Logan v. United States, which they think is in no
way modified by what actually was decided in Benson v. United States.
III. Interest
(A) At Common Law
THE QUEEN v. MUSCOT.
(Court of Queen's Bench, 1714. 10 Mod. 192.)
A question was started in an indictment for a judicial perjury,
whether one produced as an evidence for the Queen might not be
examined upon a voir dire, as the common usage is in civil actions?
It was insisted, by the counsel for the Queen, that the question
should not be put, because the consequence would be, that no such
prosecutions could ever go on ; for there is scarcely any prosecutor
but if asked whether he be interested in the event of a cause, must
say he is. For example : Where the -owner prosecutes an indictment of
felony for stolen goods he is concerned in interest, for he will be in-
titled to restitution, and yet his evidence is admitted. So likewise,
where an indictment is removed by certiorari from the sessions into
the Court of King's Bench, notwithstanding the prosecutor in that
case, if the defendant be convicted, is, by the statute of 5 and 6 Will.
SeC. 1) COMPETENCY 151
& Mary, c. 11, intitled to his costs, yet he is allowed as a witness.
So likewise there are several cases where, though a man will, in case
of conviction, be intitled to forty pounds, yet his evidence shall be
received. And as to the cases of The Queen v. Duke of Leeds, and
The Queen v. Cobham, where the informer was refused to be an evi-
dence, there is this difference between those and the present case, that
there it appeared upon the face of the record that the parties produced
as witnesses were interested. In hue and cry, the evidence of the
person robbed is always allowed as evidence.
Parker, Chief Justice. 26 It is a principle of the common law, that
every man shall be tried by a fair jury, and that evidence shall be given
by persons disinterested. The law gives the party tried his election
to prove a person offered as evidence interested two ways, viz. either
by bringing other evidence to prove it, or else by swearing the person
himself upon a voir dire ; but though he may do either, he cannot
have recourse to both. It was never objected before, that a person
should not be sworn upon a voir dire ; nor will it, I hope, ever here-
after. Objections have indeed been started as to the nature of those
questions, that shall be put to a witness upon taking such an oath. As
to the case of robbery, that is founded upon the necessity of it, and
that only. As to the cases put upon the statutes where forty pounds
reward, &c. they admit of this answer, that the intention of those Acts
will be quite defeated, if the reward were to take off their evidence.
The same answer likewise may serve to the cases put upon an indict-
ment of felony for stolen goods, and where the indictment is removed
by certiorari, &c. ; for who, in the first case, but the owner can prove
the property of the goods? and in the second, if the giving of costs
should take off the evidence of the prosecutor, that Act of Parliament,
which was designed to discountenance the removing of suits by certio-
rari, would give the greatest encouragement to them that is possible.
As for the distinction taken between the interest of the witness ap-
pearing upon record, and its appearing some other way, it is an
irrational distinction, and a reflection, upon the wisdom of the law.
As to the objection taken from the inconvenience of putting the gen-
eral and common question, because probably he must answer it in
the affirmative, there is nothing in it, for he may be asked to ex-
plain the nature of his interest, that so the Court may be judge,
whether his interest is such as ought to exclude his evidence. 27
Pie was accordingly sworn upon a voir dire. * * *
28 Part of opinion omitted.
27 That the person injured by the perjury is a competent witness for the
prosecution, see Rex v. Boston, 4 East, 572 (1S04). A contrary rule ap-
pears to have obtained in the forgery cases. Watt's Case, Hardies, :;::i
(1664), and dicta in Kex v. Boston. For an extended discussion of the com-
petency of the informer, or of the person injured, In criminal proserin inns,
see Rex v. Williams, 9 B. & C. 549 (1829); United States v. Murphy, 16 Pet.
203, 10 L. Ed. 937 (1812), under a statute giving a part of thej tine to the
injured person.
152 WITNESSES (Ch. 2
PEOPLE v. BILL.
(Supreme Court of New York, 1813. 10 Johns. 95.)
This was an indictment for an assault and .battery, tried at the Del-
aware sessions in January, 1812, on which the defendant was found
guilty.
By consent, the judgment of the court of sessions was suspended,
in order to take the opinion of this court, on a question of law, arising
upon the trial; and the following case was submitted to the court:
The defendant was indicted jointly with another person, for an as-
sault and battery upon J. P. The defendants each pleaded not guilty.
This defendant elected to be tried separately, and his trial came
on first. The prosecutor, and the two defendants, were the only
persons present at the time of the affray. After the testimony for
the people had been produced, the defendant offered to prove his de-
fense by the other person named in the indictment. The district attor-
ney objected to the witness, on the ground that he was named
jointly in the indictment, and for the same cause; and the witness was
excluded.
Per Curiam. It appears to be a technical rule of evidence, and one
well settled, that a party in the same suit or indictment, cannot be a
witness for his co-defendant, until he has been first acquitted, or, at
least, convicted. Whether the defendants be tried jointly, or sep-
arately, does not vary the rule. It is his being a party to the record
that renders him incompetent, and the practice is, when nothing ap-
pears against one of the defendants, for the court to direct his im-
mediate acquittal, so that the other defendant may use him as a wit-
ness. 1 Hale's P. C. 306; Peake's Ev. 100, note; 6 Term Rep. 623.
In the case of Rex v. Fletcher, Stra. 633, where two were indicted for
an assault, and one submitted, and was fined, and paid it, the chief
justice allowed him to be a witness, "the matter then being at ah end,
as to him." But in the late case of Rex v. Laf one and others, 5 Esp.
N. P. 155, Lord Ellenborough would not allow a co-defendant, on a
joint indictment for a misdemeanor, to be a witness for the other,
though he had let judgment go by default, for he said that one defend-
ant, in that case, might always protect the other, and he had never
known that evidence offered.
The witness in the present case was, therefore, legally excluded. 28
* s Accord: Com. v. Marsh, 10 Pick. (Mass.) 57 (1S30) ; United States v.
Keid, 12 How. 361, 13 L. Ed. 1023 (1851).
Sec. 1' COMPETENCY 153
REOINA v. WINSOR.
(Court of Queen's Bench, 1S65. 10 Cox, Cr. Cas. 270.)
The prisoner, Charlotte Winsor, was jointly indicted with Mary
Harris for murder. They were tried jointly, but the jury disagreed.
The prisoner was then tried separately and convicted, largely on the
testimony of Mary Harris, against whom the indictment was still
pending. 29
Cockburn, C. J. * * * "On the second [trial] it was proposed,
on the part of the prosecution, to sever the trial with the view to the
one prisoner becoming a witness against the other. No doubt that
state of things which the resolution of the judges, as reported in Lord
Holt's time, was intended to prevent, did place the prisoner under this
disadvantage, that whereas, upon the first trial, most important evi-
dence could not be given against her, it was given against her upon
the second trial, so that the discharge of the jury produced to her that
prejudice. I equally felt the force of what Mr. Folkard said about
the fellow prisoner coming forward to give evidence without having
been first acquitted, or convicted and sentence passed. I think that was
much to be lamented. In all such cases, if it be thought necessary,
where two persons are in the same indictment, and it is thought desira-
ble to separate them in their trials, in order that the evidence of the one
may be taken against the other, I think, in order to ensure the greatest
possible amount of truthfulness on the part of the person who is com-
ing to give evidence under such remarkable circumstances, it would
be far better that a verdict of not guilty should be taken first, or if
the plea of not guilty is withdrawn and a plea of guilty taken, sentence
should be passed, in order that the person coming forward to give
evidence may do so with the mind free of all the corrupt influence
which the fear of impending punishment and the desire to obtain im-
munity at the expense of the prisoner might otherwise be liable to pro-
duce in the mind of the witness. We are not dealing with that ques-
tion now. It cannot be brought before us in a Court of Error. Evi-
dence is not set forth upon the record ; it can only in a civil case be
taken advantage of on a bill of exceptions. It does not otherwise come
upon the record so as to constitute a matter before us in error here.
It does not appear on the record at all, therefore we cannot take it
into consideration. Whether these circumstances should have any
influence elsewhere is a matter that it is not for us to refer to, or in
2 p Statement condensed and parts of the opinion omitted.
154 WITNESSES (Ch. 2
any way to pronounce an opinion upon. The only course that is open
to us is to pronounce judgment for the Crown and in favour of the
validity of this conviction.
Judgment for the Crown.
February 8, 1866.
In this case the counsel for the prisoner presented a petition to the
Home Secretary, setting forth that the other prisoner Harris was ad-
mitted as a witness without any verdict being taken either for or
against her, and that the learned judge at the trial had refused to
reserve the point for the Court of Criminal Appeal. The Home Sec-
retary upon this submitted the point as to the evidence of Harris to
the fifteen judges for their opinion. They met, and the subjoined is
an extract of their opinion. The point was not argued before the
judges, but their opinion was given merely to inform the conscience
of the Home Secretary, who inclosed the extract, and expressed his
regret that he could not, under the circumstances, consistently with
his public duty, recommend the convict to the mercy of the Crown:
"We think that the evidence of the witness Harris was legally ad-
missible, although she was jointly indicted with the convict, and had
not been previously convicted or acquitted. With reference to this par-
ticular case, we, in common with the learned judge who tried the case,
and by whom all the circumstances have been brought before us, are
of opinion that no injustice or irregularity occurred of which the con-
vict can properly complain." 80 * * *
McKENZIE v. STATE.
(Supreme Court of Arkansas, 1S67. 24 Ark. 636.)
Compton, J. 31 The appellant was convicted in the circuit court of
Randolph county of murder in the first degree, and was sentenced to
be hanged. The motion of the appellant for a new trial was over-
ruled, and he appealed to this court.
The record presents several questions for our consideration, which
we will proceed to determine in the order in which they have been
argued in this court.
1. The bill of exceptions shows that the accused offered to introduce
Jahu Bremage as a witness in his behalf, which the court refused
to permit upon the ground that he was the identical person who, by
the name of John Bremage, was jointly indicted with the accused,
'and as to whom a nolle prosequi was entered and against whom a sep-
so Accord: Benson v. United States, 146 U. S. 325, 13 Sup. Ct. 60, 36 L.
Ed. 991 (1892). A co-indictee is competent for the prosecution after the case
is disposed of as to him by a plea of guilty. Com. v. Smith, 12 Mete. (Mass.>
238 (1847;.
si Statement and part of opinion omitted.
Sec. 1)
COMPETENCY
J 55
arate indictment, for the same offence, was subsequently preferred,
which then remained undetermined. This was error. It is true that
it was decided by this court, in Moss v. State, 17 Ark. 327, 65 Am.
Dec. 433, and again, at the present term, in Brown v. State, 24 Ark.
620, that one of several defendants in an indictment, still pending
against him for the same offence, is not a competent witness for his
co-defendants, but such is not the question here presented. Bremage,
as we have seen, had been discharged from the joint indictment, was
no longer a party to the record in that case, and the fact that he stood
indicted separately for the same offence, did not disqualify him as a
witness for the accused. Whar. Crim. Law, p. 303; United States
v. Henry, 4 Wash. C. C. 428, Fed. Cas. No. 15,351; 1 Hale, p. 305,
(in Marg. ;) 1 Chit. Crim. Law, p. 603, (in Marg.)
2. The bill of exceptions also shows that the accused offered to
introduce James C. Winters as a witness, which the court refused to
permit, because it was made to appear that he was an accomplice. In
this the court also erred. This witness was not indicted at all, and
his being an accomplice did not make him incompetent. Brown v.
State, decided at the present term. See also authorities cited. * * *
Reversed.
HOPKINS v. NEAL et al.
(Nisi Prius, 1736. 2 Strange, 1026.)
The plaintiff sued as an infant by her father the prochein amy, for
an assault and battery : and the father was refused to be a witness by
Lord Hardwicke at Nisi prius in Middlesex, he being liable to the
costs.
v. FITZGERALD.
(Court of Chancery, 1742. 9 Mod. 330.)
An a ction was brought upon a policy of insurance by the trustee,
the trust being declared upon the policy itself ; and it was now moved,
that the trustee, though a plaintiff in the action, might be received as
a witness upon the trial at law.
Hardwicke, Lord Chancellor. Where policies of insurance have
been made to A. to the use of B. the legal interest being judged to
be in B y A. the trustee has been admitted, to be a witness ; but
where the trustee has the legal estate, and the action has been brought
in his name, he can never, to be sure, be admitted as a witness upon
any of the principles of law. A defendant in this Court, no doubt,
can apply in this Court to have the plaintiff's trustees examined in the
cause; but I am afraid it is not so where the plaintiff comes to have
156 WITNESSES (Ch. 2
himself examined, though he is a trustee. 32 This should have been
mentioned at the hearing of the cause; and then if I had been told
that you must bring actions upon the policy, and should have occasion
to examine the trustees, I would have directed an issue, and have
given liberty to have the trustees admitted as witnesses ; but I can-
not do this upon motion, when the cause is out of Court.
It was then moved, that the depositions of several witnesses ex-
amined in this cause, and now abroad, might be received as evidence
at law. And his Lordship said, it was now the constant practice in
the Courts of Law to admit such depositions in evidence, where the
witnesses were abroad.
NORDEN et al. v. WILLIAMSON.
(Court of Common Pleas, 1808. 1 Taunt. 378.)
The declaration in this case was for work and labour done, and ma-
terials furnished by the plaintiffs, who were partners in trade. At
the trial of this cause, at the Westminster Sittings after the last term,
before Mansfield, C. J., evidence was given that the defendant had
issued orders to the plaintiffs to execute the work. To rebut this
evidence, the defendant called, among other witnesses, the plaintiff
Twibill, who proved that the orders for the work were received by
himself, and were not given by the defendant. And upon this evi-
dence the jury found a verdict for the defendant.
Cockell, Serjt., on this day moved for a new trial, upon the ground
that Twibill's testimony was inadmissible. There is no case in the
books where a plaintiff is permitted to take an oath as witness, ex-
cept that of an action against the hundred, where it is done under
the especial directions of an act of Parliament. When a plaintiff
enters the witness box, it cannot be known to what effect he will give
his testimony.
Mansfield, C. J. This is a new case. I never before remember
a plaintiff to have been called as a witness, and perhaps the same
thing may rarely occur again. Since the decision in Lord Melville's
case it is no longer law that a man cannot be compelled to answer
against his civil interests, but supposing that decision will not extend
to compel a plaintiff to answer in his own cause, at least, I know no
reason why, if the defendant is willing to admit him, and the plaintiff
is willing to give evidence against himself, he should not be suffered
to do so. If his evidence proves adverse, the consequence must fall
on the defendant, who ventures to call him. If the plaintiff had made
a* In Bauerman v. Radenius, 7 Term Rep. G63 (1798), it is assumed as a
matter of course that a nominal plaintiff was incompetent. But see Heath
\'. Hall, 4 Taunt. 326 (1812), suggesting the competency of the assignor of
a chose in action.
Sec. 1) COMPETENCY 157
a declaration out of court that he had never been employed by the
defendant, evidence of that declaration would be admissible, i low-
is the proof less credible, if the plaintiff comes into court and declares
the same thing upon his oath?
Chambre, J. The defendant may waive the objection to the plain-
tiff's testimony, if he will. 33
Rule refused.
BLACKETT v. WEIR.
(Court of King's Bench, 1826. 5 Barn. & C. 3S5.)
Assumpsit for goods sold and delivered. Plea, the general issue.
At the trial before Bayley, J., at the Northumberland Summer assizes,
T825, it appeared that the action was commenced to recover the price
of a cargo of coals sold and delivered to a steam yacht company.
In order to prove that the defendant had a share in the concern, one
Gilson was called, who admitted on the voir dire that he also was a
partner, and it was thereupon objected for the defendant that the
witness was incompetent. The learned Judge overruled the objec-
tion, and the plaintiff obtained a verdict,' the defendant having leave to
move to enter a nonsuit. In Michaelmas term, a rule nisi for that
purpose was obtained by F. Pollock, who cited Bland v. Ansley, 2 X.
R. 331; Brown v. Brown, 4 Taunt. 752; Mant v. Mainwaring, 8
Taunt. 139.
Abbott, C. J. I am of opinion that the evidence of Gilson, was
properly received. On the motion for this rule cases were cited which
show that one joint contractor, having suffered judgment by default,
cannot be called as a witness. To that position I accede ; it is founded
upon the rule that a party to the record cannot in general be ex-
amined. It is said that the witness had an interest; he had so; but it
was his interest to defeat the plaintiff, for in the event of his recovery,
the defendant would be entitled to contribution from the witness. In
actions of trespass, witnesses apparently open to a much stronger ob-
jection are constantly admitted. In that action a recovery against
one of several co-trespassers is a bar to an action against the others ;
and yet scarcely a circuit passes without an instance of a person who
lias committed a trespass being called to prove that he did it by the
33 And so in Worrall v. Jones, 7 Bingham, 395 (1S31), where one of the de-
fendants who had suffered a default was examined on behalf of the plain-
tiff. But a defendant may have such an interest as will disqualify him for
the plaintiff, as in Brown v. Brown, 4 Taunt. 752 (1813), where it was to the
of one defendant to make the other liable; or he may he disqualified
to testify for either plaintiff or a codefendant, as in Mant v. Mainwaring,
8 Taunt. 139 (1818), where if called by the plaintiff it might have been tc
his interest to make his codefendant jointly liable, or. if called by V
defendant, he might have relieved himself by proof that there was n<> joint
liability. If the interest of the witness was equal either way, he was not
disqualified. Ilderton v. Atkinson, 7 D. & E. 480 (1798).
158 WITNESSES (Ch. 2
command of the defendant. In that case a verdict for the plaintiff
would operate as a discharge to the witness, there being no contribu-
tion in actions of tort. Here, on the contrary, it brought a liability
Upon him.
Rule discharged. 34
REEVES v. SYMONDS.
(Nisi Prius, 1714. 10 Mod. 291.)
This was an action brought by Reeves for a quantity of stockings
sold to Symonds.
The defence of Symonds, that it was not he that bought the stock-
ings, but his son, who sent them to France in the way of trade.
To prove this he would have called his son.
Parker, Chief Justice. He cannot be an evidence ; because here is
an advantage made by way of trade ; and to whom this advantage
shall accrue depends entirely upon this question, who made this con-
tract? and now one comes to swear, that he made the contract him-
self.
Darnell, Serjeant. He may be a witness ; because he will neither get
nor lose by the event of this cause ; for what is now given in evidence
cannot be given in evidence in another action.
Parker, Chief Justice. This you have often said, and I as often an-
swered. If an action be brought by a commoner for his right of com-
mon, shall another person that claims a right of common upon the
same title be allowed to give evidence ? No ; and yet it is certain that
he can neither get nor lose in that cause ; for the event of that cause
will no way determine his right. But though he is not interested
in that cause, he is interested in that question upon which the cause
depends ; and that will be a bias upon his mind. It is not his swearing
the thing to be true that gives him any advantage, but it is the thing's
being true; and the law does judge, that it is not proper to admit
a man to swear that to be true which is plainly his interest should
be true. 35
34 Concurring opinions of Bayley, Holroyd, and Littledale, JJ., omitted,
so And so in a long opinion about the same period in Lock v. Hay ton,
Fortesque, 246.
Sec. 1) COMPETENCY 159
LEWIS v. FOG.
(At Nisi Prius, 1733. 2 Strange, 944.)
' In an action by the master for the defendant's dog's biting his ap-
prentice, per quod servitium amisit, the Chief Justice allowed the ap-
prentice to be a witness. 30
COMMINS v. MAYOR AND BURGESSES OF OAKHAMPTON.
(Court of King's Bench, 1752. Sayer, 45.)
Upon a rule to shew cause, why a new trial should not be had in
an action upon the case, it appeared : that the action was, for refus-
ing to admit the plaintiff to the freedom of the corporation of Oak-
hampton ; that at the trial of the cause the chief question was, wheth-
er there was a certain custom in the borough, under which the plaintiff
claimed a right of being admitted? And that the father of the
plaintiff, who had obtained his freedom by servitude, was not admitted
to prove this custom.
The question was, whether the father was an admissible witness to
prove this custom?
It was holden that he was.
And by LEE, C. J. The person, to whom the remainder of an es-
tate is, after the determination of a particular estate limited by a will,
cannot be admitted to prove the will; because he has, although it be
remote, a vested interest in the matter in question : but it has been
always holden : that the son of the person, to whom a particular estate
is devised by a will, may be admitted to prove the will ; because, al-
though he may be under a bias, he has not a vested interest in the
matter in question. Mere relationship, how near soever the relation
may be, does not go to the competency of a witness, unless there be
a vested interest in the matter in question. The bias, which a fa-
ther is presumed to be under in giving testimony in favour of his
son, does certainly go to his credit : but a father is, in all cases, a
competent witness for his son, if he have not a vested interest in the
matter in question. In the present case, the father was not immedi-
ately interested in the matter in question ; nor could he at any future
time become interested therein : the freedom of a corporation not be-
ing transmissible.
It was, on the contrary, clearly against the interest of the father,
who was himself a freeman, to prove this custom; for by the estab-
lishment of a custom, under which others as well as his son might
obtain their freedom, his own franchise would have been rendered less
valuable.
8« See, also, Rex v. Huggins, Fitz-Gibbon, 80 (17^,0). where a witness, in-
terested in the question, was admitted, because the verdict would not be
evidence in bis favor.
160 WITNESSES (Ch. 2
GREEN v. NEW RIVER CO.
(Court of King's Bench, 1792. 4 Term R. 5S9.)
This was an action for consequential damage to the plaintiff's horse
by reason of the bursting of a pipe belonging to the New River works,
owing to the negligence of the defendants. A witness was called at
the trial before Lord Kenyon at Westminster to prove the negligence,
which his lordship held to be necessary to support the action, and that
witness swore that he had some hours before the bursting of the pipe,
and the consequent accident, informed the turncock, one of the de-
fendants' servants, of the ouzing of the water, which intelligence
(if it had been attended to in time) would have enabled him to provide
against the mischief. In answer to this the defendants' counsel of-
fered to call the turncock himself, to disprove the evidence of the other
witness; which the plaintiff objected to without a release; and none
such being prepared, his Lordship was of opinion that the turncock
was an incompetent witness, as he came to disprove his own negli-
gence, which if established by the verdict would be the ground of an
action against himself by his employers. And the jury having found
for the plaintiff,
Erskine moved to set aside the verdict for the rejection of the wit-
ness, contending first that he was not interested in the event of the suit,
inasmuch as the verdict could not be given in evidence in any action
which the defendants might bring against him. And even admitting
him to be interested, yet he was a witness from necessity, on the same
ground that coachmen and sailors are admitted to give evidence to dis-
prove their own negligence in actions against their masters and em-
ployers for damage done in their several occupations, or that on
which a servant of a tradesman is permitted to prove the delivery
of goods. But
PER Curiam. The last instance cited is an exception to the general
rule ; such a person is admitted to give evidence, merely from neces-
sity. But the exception does not extend to the two other cases men-
tioned of the coachman and the sailor; the verdicts against the propri-
etors of those may be respectively given in evidence in actions to be
brought .by them against their servants, as to the quantum of damages,
though not as to the fact of the injury. So the verdict in this case
may be given in evidence in an action by the defendants against
the witness; and therefore he is an incompetent witness without a
release. 37
Rule refused.
87 Accord: Martin v. Henrickson, 2 Ld. Raymond, 1007 (170G).
That the plaintiff's servant is incompetent to disprove his own contribu-
tory negligence in an action for a negligent injury to property in the serv-
ant's charge, see b v. Foot, 8 Taunt. 454 (1818). Bui see Nix v. Cut-
ting, I Taunt. L8 (1811), where, in an action of trover for the conversion of
Sec. 1) COMPETENCY 161
SMITH qui tarn v. PRAGER.
(Court of King's Bench, 179G. 7 Term R. CO.)
This was an action for usury, tried before Lord Kenyon, C. J., at
Guildhall. In order to prove the case, Bromer the borrower of the
money was called as a witness ; and he gave in evidence that on the
17th of September, 1795, he borrowed of the defendant £900. to be
repaid on the 3d of October following, for which he was to pay £11. as
interest. That on the 13th October, 1795, he borrowed of the defend-
ant £2000. more, to be repaid on the 26th of the same month, for the
loan of which he was to pay £42. and both the principal sums and inter-
est were repaid at the stipulated times by Bromer's drafts on his bank-
er, which were duly honoured. That he was still indebted to the de-
fendant in the sum of £4000. on a running account for this and other
loans of money. Bromer had before the trial become a bankrupt, and
had not obtained his certificate. It was objected at the trial that he
was not a competent witness, on the ground of interest; but Lord
Kenyon, C. J., over-ruled the objection, and the plaintiff obtained a ver-
dict on the counts, stating the two transactions above mentioned, there
being other usurious transactions stated in other counts which were not
proved.
A rule having been obtained on a former day, calling on the plaintiff
to shew cause why the verdict should not be set aside, and a new trial
had on this ground. * * *
Lord Kunyon, Ch. J. The case of Bent v. Baker [3 Term R. 27]
laid down a clear and certain rule by which I have ever since endeav-
oured to regulate my opinion in causes coming before me at Nisi Prius,
though probably I may not have decided properly in every instance,
when called upon to form an opinion on the sudden. The rule there
laid down was, that no objection could be made to the competency of
a witness upon the ground of interest, unless he were directly inter-
ested in the event of the suit, or could avail himself of the verdict in
the cause, so as to give it in evidence on any future occasion in support
of his own interest. We are now called upon to review that decision ;
and the case of Abrahams v. Bunn [4 Burr. 2251] has been cited. The
report of the latter in Burrow is a very full one; but I have a MS note
of it something fuller. Lord Mansfield there stated the great doubt
and contradiction which had long prevailed in the cases upon the dis-
tinction between objections which went to the competency and such as
went to the credit only of a witness. That the Courts had long been
a horse, it was held that a person who had sold the horse to the defendant
under an alleged authority from the plaintiff was a competent witness for
the defendant to prove that fact.
For an early case of disqualification because of possible liability) over,
see Wicks v. Smallbrook, 1 Sid. 51 (1G02).
Hi nt. E v.— 11
162 WITNESSES (Ch. 2
misled by the authority of Lord Holt in deciding the case of the King
v. Whiting, Salk. 283, where upon an indictment for a cheat in obtain-
ing a person's subscriptions to a note of £100. instead of £5., he re-
jected the evidence of the maker of the note; because if the defend-
ant were convicted, Lord Holt said the verdict would be sure to be heard
of in an action on the note to influence the jury. That this decision was
followed by Lord Hardwicke in the King v. Nunez, 2 Stra. 1043 ; but
that in the King v. Bray, Rep. temp. Hardw. 358, his Lordship had an
opportunity of reviewing his own opinion and that of Lord Holt, and
was then satisfied that the objection went only to the credit and not to
the competency of the witness ; and that, as to hearing of the verdict,
he, sitting as a judge, could only hear of it judicially; and if it could
not be afterwards given in evidence for the witness it was no objection
to his competency. Lord Mansfield also observed that since the King
v. Whiting great light had been thrown upon the subject by three decid-
ed cases ; those of R. v. Bray, the East India Company v. Gosten, and
Bailie v. Wilson before the delegates. And he laid it down as a rule
that the objection to a witness on the ground of future interest only
went to his credit, unless the judgment could be given in evidence for
him in any other suit. Now that was the very point decided in Bent v.
Baker ; and therefore the authority of that case stands fully confirmed.
Upon the authority therefore of all these cases I am clearly of opinion
that Bromer was a competent witness in this case; and that the objec-
tion to the situation in which he stood went only to his credit, of which
the jury alone were to judge.
The other Judges assenting,
Rule discharged.
BENJAMIN v. PORTEUS.
(Court of Common Pleas, 1798. 2 H. Bl. 590.)
In this action for goods bargained and sold, brought to recover the
price of a quantity of indigo, which was sold for three shillings a
pound weight; one Bennett, the broker who was employed by the
plaintiff was called as a witness to prove the contract, and being ex-
amined on the voir dire, stated that by this agreement with the plain-
tiff he was to have for his own profit whatever sum he could get for
the indigo above half a crown for the pound, which price the plaintiff
had fixed for himself, but not an allowance of so much per cent, on the
sale by way of commission in the usual way. The Lord Chief Jus-
tice at the trial thought this was an objection to the competence of
the witness on the score of interest, and that as he did not come with-
in the description of a broker or factor, the exception to the general
rule made jn favour of their testimony being admissible to prove con-
tracts made by them was not applicable to him, and as he refused to
release, the plaintiff was in consequence non suited.
Sec. 1) COMPETENCY 103
Lord Chief Justice Eyre. The inclination of my opinion is, that
this evidence ought to have been rejected. The principle is admit-
ted, that where a witness has a direct interest in the event of a cause,
his testimony cannot be received. But from necessity an exception
has been introduced in the case of factors and brokers, because from
the nature of the transactions in which they are engaged, the con-
tracts they make for other persons cannot be proved without them.
It is true indeed, there is no magic in the term "factor" or "broker,"
and that every man who makes a contract for another comes, in some
sort, within the description. But here it was not simply a contract
that Bennett made for another, but for another and himself. He was
to have all the profit which could be made upon the sale of the indigo
above, 2s. 6d. on every pound weight, the stated sum that was to be
paid to his principal. His profit therefore was not to arise from the
profit of the principal, but was collateral to and beyond it. He can-
not wrong the principal, but he may wrong the person with whom he
deals, by screwing him up beyond the real value of the goods, for the
sake of his own profit, and therefore he has a separate interest to
establish a particular contract which he comes to prove. It is true
that an ordinary broker has an interest, but it is not such as to out-
weigh the necessity of his testimony being received. If he is to have
£5. per cent, commission on the sale, where he gets one shilling for
himself he gets nineteen for his employer, and his gain arises out of
the gain of his employer. But here the agent takes a profit in fact
as a principal, with only 2s. 6d. for his employer. A regular broker
must take care of his employer's interest as well as his own, and has
not such a temptation to raise the price of the commodity to the buyer.
Besides, I think the employing persons to transact business upon such
terms as these is neither necessary nor convenient, but on the con-
trary is extremely mischievous in commerce, and not to be encouraged.
Brokers are men acting in a known established character, of known de-
scription and responsibility, and therefore more fit to be trusted and
employed in commercial transactions.
Heath, J. With great respect for my Lord Chief Justice, I think
this witness was admissible. I cannot distinguish him from a broker:
he must, I think, be considered as a broker, and not as principal ; he
is only paid for his trouble in a particular manner. The reason for
admitting him is the necessity of the thing, for it is often for the bene-
fit of trade that bargains of this kind shall be kept secret. It appears
to me to be equally the interest of a broker, who is to have a per-
centage to screw up the price, as it was of this person. It is indeed
his duty to screw up the buyer ; he must tell the whole truth respect-
ing the commodity, but having done that, it is his duty to ask the
highest possible price. I cannot consider a broker as the agent for
both parties ; he appears to me to be solely the agent of the vendor.
RookE, J. I agree with my Brother Heath in thinking this evi-
164 WITNESSES (Ch. 2
dence ought to have been admitted. I see no difference in point of
interest, between a person who sells upon commission, and one who
is to have a share of the profit : nor can I make a distinction between
this witness and a common broker. He is an agent who makes a
bargain between two others, and whose evidence is admissible from
necessity, which is a necessity created by the parties themselves.
Lord Chief Justice. My Brothers have stated it as a principle,
upon which they rest their opinions, that there is no difference be-
tween an agent taking to himself a part of the price for which he
bargains, and taking a commission from his employer upon that price.
If this principle can be supported, I agree that the evidence ought to
have been received. Let there be a new trial.
Rule absolute. 88
DOE dem. MAYOR AND BURGESSES OF STAFFORD et al. v.
TOOTH.
(Court of Exchequer, 1S29. 3 Tounge & J., 19.)
Ejectment to recover certain property leased by the corporation to
the defendant. One of the burgesses, after releasing his interest in
the property in question, was admitted to prove the notice to quit.
The plaintiff had a verdict and the defendant obtained a rule nisi to
set it aside. 89
Garrow, B. This case depends entirely upon the question whether
the evidence of Tildesley was that of a person who was a competent
witness, which question is disposed of by a simple statement of facts.
If the corporation obtain a verdict, they will thereby be entitled to
certain property, which, added to the general stock of the corpora-
tion, will become a fund distributable amongst the members of the
corporation, of which the witness is one. In that view of the case,
therefore, he would clearly be disqualified, because his evidence tends
to increase a fund in which he has a direct interest. But it may be
said he has released all claim to this specific property. It must be
admitted, without reference to this property, that he is interested in
the general funds of the corporation, and if that be so, there is a
second mode in which that interest may be affected, viz. by decreasing
that general fund by the amount of the costs, which must come out
88 See, also, Martin v. Horrell, 1 Strange, 647 (1726), a case of an agent
proving an overpayment by himself to the defendant in an action by the
principal to recover back; Dixon v. Cooper, 3 Wilson, 40 (1769), like prin-
cipal case, except that the broker had a per cent, commission; Moses v.
Boston & M. R. R., 24 N. H. 71, 55 Am. Dec. 222 (1851), where a drayman
was held competent to prove delivery to a carrier, though he would Lave
been liable to the plaintiff if he had misdelivered or failed to deliver.
In Theobald v. Tregott, 11 Mod. 261 (1710), in an action by a master
against a servant for money collected, the debtor was held incompetent to
prove the payment.
sa Statement condensed and opinion of Hullock, B., omitted.
Sec. 1) COMPETENCY 105
of that fund in the event of the verdict being found against the cor-
poration. In either view of the case, therefore, he was an incompe-
tent witness, and the consequence will be that the verdict must be set
aside, and the rule made absolute.
Vaugiian, B. I concur in the opinion expressed by my learned
Brothers. In the case of Weller v. The Governors of the Foundling
Hospital, P. N. P. 153, the witnesses were admitted because they were
mere trustees, 40 and had not the least personal interest. That is not
the case here, and wherever it is once admitted that a witness has an
actual and direct interest in a fund which may be affected by the ver-
dict, he is thereby rendered incompetent.
Rule absolute.
PAULL v. BROWN.
(Nisi Prius, 1S06. 6 Esp. 34.)
Trover, for a quantity of household furniture claimed by the plain-
tiff, as having belonged to the intestate.
To prove property in part of the articles claimed, a witness was
called. He was asked on his voir dire, if he was not a creditor of
the intestate? and it being answered that he was, Garrow objected
to his competency, on the ground that he was coming to increase the
estate of the intestate, which was the fund out of which his debt was
to be paid. He instanced the case of a commission of bankruptcy, in
which in an action by the assignees of a bankrupt, a creditor cannot
be admitted as a witness, to prove property belonging to the bankrupt
estate.
It was answered by Shepherd, Serjt. That there was no difference
in this case, and that wherein the intestate himself was plaintiff, in
which latter case it was very clear, there could be no objection, to
a man to whom he owed money, and who so was his creditor being
called as a witness. The right of the representative was the same :
That the case of bankruptcy differed, for there there was a presumed
insolvency, so that the witness bettered his situation, and the effect of
his evidence was to increase the fund from whence the payment of his
debt was to be made. That a creditor, under a bankruptcy, was en-
titled to a certain share of the sum recovered, which, under an ad-
ministration, he might not have, as his share of the money recovered
might depend on there being no other debts of a higher nature, or
the preference of the administrator; besides, too, he might be deem-
ed a party, as the bankrupt's property was by the choice of all the
creditors conferred on the assignees, and they brought action only
with the consent of all the other creditors, so that they thereby be-
came as parties.
For the 'use of a trustee without interest as to costs, see Lowe v. Jo-
liffe, 1 Win. Blackstone, 3G5 (1762).
166 WITNESSES (Ch. 2
MacDonald, Chief Baron, ruled, that the witness was admissible.
It was not distinguishable in principle, from the case put of an ac-
tion of the party himself. The administrator represented the testa-
trix herself, and it never was heard of, that a person being a creditor
to a party, made him objectionable as a witness, and yet the effect of
his testimony was to increase his debtor's ability to pay; such inter-
est was too remote.
In the case of bankruptcy, all the property of the bankrupt be-
longed to the creditors, though nominally by operation of law vest-
ed in the assignees. A creditor therefore came to give evidence for
himself. The witness was admitted.
Verdict for the plaintiff. 41
DOE dem. LORD TEYNHAM v. TYLER.
(Court of Common Pleas, 1830. 6 Bing. 390.)
This ejectment was brought to try the validity of a recovery suffer-
ed by the father of the lessor of the plaintiff in 1789.
The lands in question had, by a deed bearing date in 1756, been
settled on the father of the lessor of the plaintiff in tail male; re-
mainder among others to Philip Roper, uncle of the lessor of the
plaintiff, in tail male.
The objection to the recovery was, that the father of the lessor of
the plaintiff, at the time of suffering it, was of unsound mind, or at
least so imbecile as to be liable to be practised on.
At the trial before Tindal, C. J., Middlesex sittings after Michael-
mas term, the evidence of Philip Roper, the uncle of the lessor of
the plaintiff, and ninety years old, was tendered, and rejected on the
ground that the witness had an interest in the result of the cause,
although the lessor of the plaintiff had sons and grandsons.
A verdict having been given for the defendant,
Jones, Serjt., moved for a new trial, on the ground of the exclusion
of this evidence, and the admission of other evidence which he al-
leged ought to have been excluded; but the objections on this latter
head are not stated now, as the decision on them was deferred. 42
Tindal, C. J. This rule has been moved for on two grounds : first,
on the exclusion of evidence which ought to have been admitted;
secondly, on the admission of evidence which ought to have been
rejected.
The question as to the first ground of exception is this, — Whether
the evidence of the remainder-man in tail is admissible on the part o'f a
"So a legatee may be a competent witness for the executor. Nowell v.
Davies, 5 B. & Ad. 3G8 (1833). But not a residuary legatee. Yardley v. Ar-
nold, 10 M. & W. 141 (1842). Nor the creditor of a bankrupt Shuttleworth
v. Bravo, 1 Strange, 507 (1722).
4 2 Statement condensed.
Sec. 1) COMPETENCY 1G7
prior tenant in tail who has brought ejectment to try the validity of
a common recovery, on the ground of the incompetency of the ten-
ant in tail by whom it was suffered; and as to this objection, we are
of opinion, both upon principle and on the authority of decided cases,
that such evidence is not admissible.
The general rule upon which the incompetency of witnesses is
founded, is laid down by Chief Baron Gilbert, in his Law of Evi-
dence, p. 106, in these terms: "The law looks upon a witness as in-
terested, when there is a certain benefit or disadvantage to the witness
attending the consequence of the cause one way." Now this benefit
may arise to the witness in two cases: First, where he has a direct
and immediate benefit from the event of the suit itself ; and, sec-
ondly, where he may avail himself of the benefit of the verdict in
support of his claim in a future action : and where the case falls with-
in the first description, in which the interest is more immediate and
direct, there is no occasion to have recourse to the second principle,
where the interest is one degree removed.
Cases daily occur in which the witness is rejected upon the first
ground. An executor brings an action for a debt due to his testator's
estate : the residuary legatee is not an admissible witness. Not be-
cause this verdict would be evidence for or against him in any future
suit, for he can neither be plaintiff nor defendant in an action relating
to this debt ; but because he receives an immediate benefit by a ver-
dict for the plaintiff. So, the tenant in possession, in ejectment, could
not be called to prove the title of the defendant under whom he claims
to hold ; nor could the landlord be called to prove the title of the
tenant who defended the possession. Nor in ejectment, after a prima
facie case is made out against the defendant, could a witness be called
to prove himself a real tenant, and the defendant his bailiff; for the
verdict and judgment in this very action would have the effect of
turning him out of possession immediately.
In all these cases the witness is excluded, not because the verdict
would be evidence for or against him in a future action, but on ac-
count of the immediate benefit or injury he would receive by the de-
termination of the very cause itself.
Now the present case falls within this principle. If Lord Teynham
recovers in this ejectment, he will be in as of his former right. Noth-
ing is better established than that the lessor of the plaintiff, when he
recovers in an ejectment, is in, not merely as of the term which he
has granted to John Doe, but as of the right and title which he has
proved in himself. If he has only a chattel interest, he is in as of that
term; but if he has a freehold, he is in as of that freehold; if ten-
ant in tail, he is in as such tenant in tail. (See the judgment of Lord
Mansfield in Taylor v. Horde, 1 Burr. 114.)
Lord Teynham, therefore, if he should have recovered a verdict,
would have been tenant in tail in possession under the settlement
168 WITNESSES (Cll. 2
of 1756. But, by the very same verdict, Philip Roper, the proposed
witness, would have acquired a vested interest in the remainder in
tail under the same settlement.
The seisin of the tenant in tail in possession is the seisin of the
remainder-man; the estate in possession, and the estate in remainder
being for this purpose but one estate. It seems, therefore, to us, that,
upon principle, the witness had a direct and immediate interest in
procuring a verdict which should have the effect of revesting his
own remainder in tail. And, upon authority, besides the cases which
have been referred to in 1 Salk. 283, and 1 Ld. Raym. 730, there is
an opinion of Lord Chief Justice Lee in the case of Commins v. The
Mayor of Oakhampton, Say. Rep. 45 : "The person to whom the re-
mainder of an 'estate is, after the determination of a particular es-
tate, limited by a will, cannot be admitted to prove the will; because
he has, although it be remote, a vested interest in the matter in ques-
tion."
We therefore think, that this rule to show cause ought not to be
granted upon the first ground of objection ; but with respect to the
second, without giving any opinion upon the result of the rule, we
grant a rule to show cause.
Rule granted upon the second objection.
DOE dem. NIGHTINGALE v. MAISEY.
(Court of King's Bench, 1830. 1 Barn. & Adol. 439.)
Ejectment for a cottage and land. At the trial before Park, J., at
the Summer assizes for the county of Gloucester, it appeared that the
lessor of the plaintiff had been in possession of the premises under a
conveyance to him from Elizabeth Maisey, made about three years ago,
but the defendant had obtained possession thereof from a tenant of
the lessor of the plaintiff. Elizabeth Maisey had been in possession
of the premises for upwards of thirty years, when she sold them for
a valuable consideration to Nightingale. The defendant proved that
his grandfather (whom his father survived) was possessed of the prem-
ises, having enclosed them on the side of a road, and gave them up to
his daughter Elizabeth Maisey, upon a family agreement that she
was to have them for her life for taking care of them; or, in other
words, that Elizabeth Maisey never had any adverse possession. To
prove that the defendant was heir to his father, and also to prove
that die possession of Elizabeth Maisey was under the family arrange-
ment, the defendant called his mother. It was objected by the plain-
tiff, that she was incompetent, because she came to prove a seisin in
law in her husband, and thus her evidence would go towards es-
Sec. 1) COMPETENCY 169
tablishing that she was entitled to dower. The learned Judge over-
ruled the objection, and received the evidence, and the defendant had
a verdict.
Godson, on a former day in this term, moved for a new trial. The
witness was incompetent, inasmuch as she by her own evidence alone
proved a seisin in law in her husband. The title of the lessor of the
plaintiff being one of possession under a conveyance from Elizabeth
Maisey, if it remained uncontradicted there never could be a time at
which the witness's husband was seised in law of the premises. She
at least assisted her case for dower by her evidence ; for if the de-
fendant continued in possession, she had only to prove that he took
by descent, and her case would be complete ; whereas, if her evidence
were rejected, and the lessor of the plaintiff were in possession, then
she would be bound to prove aliunde, that her husband was ever
seised in law, and it did not appear that any such evidence was in ex-
istence.
Lord Tenterden, C. ]., now delivered the judgment of the Court.
The question in this case was, whether the mother of the defendant
was an incompetent witness, inasmuch as she would be entitled to dow-
er if her husband was seised. On consideration, we are all of opin-
ion she was competent. She had no interest, of which the law as to
evidence takes notice, in the event of the suit. The judgment in the
action would be no evidence of the husband's seisin. If he was seised,
she is equally entitled to dower, whether the premises be in the hands
of the defendant or the lessor of the plaintiff.
Rule refused. 48
'(B) Under Modern Statutes
UNITED STATES COMPILED STATUTES 1913.
§ 1464. 44 (R. S. § 858, as amended, Act June 29, 1906, c. 3608.)
Competency of Witnesses in Civil Cases to be Determined by Lazvs of
State. — The competency of a witness to testify in any civil action, suit,
or proceeding in the courts of the United States shall be determined by
the laws of the state or territory in which the court is held.
*3 See, also. Doe v. Clarke, 3 Bingham, New Cases, 429 (1832).
44 This section, as enacted in the Revised Statutes, was as follows: "In
the courts of the United States no witness shall be excluded in any action
ou account of color, or in any civil action because he is a party to or in
terested in the issue tried: Provided, that in actions by or against execu-
tors, administrators, or guardians, in which judgment may be rendered for
or against them, neither party shall be allowed to testify against the other,
as to any transaction with, or statement by, the testator, intestate, or ward,
unless called to testify thereto by the opposite party, or required to testify
thereto by the court. In all other respects, the laws of the stale in which
170 WITNESSES (Ch. 2
§ 1465. 4 * (Act March 16, 1878, c. 37.) Competency as Witnesses
of Defendants in Criminal Cases. — In the trial of all indictments, in-
formations, complaints, and other proceedings against persons charged
with the commission of crimes, offences, and misdemeanors, in the
United States courts, territorial courts, and courts-martial, and courts
of inquiry, in any state or territory, including the District of Colum-
bia, the person so charged shall, at his own request but not otherwise,
be a competent witness. And his failure to make such request shall
not create any presumption against him. (20 Stat. 30.)
NEW YORK CODE OF CIVIL PROCEDURE. 46
§ 828. No Witness to be Excluded by Reason of Interest, etc. —
Except as otherwise specially prescribed in this title, a person shall
not be excluded or excused from being a witness, by reason of his or
her interest in the event of an action or special proceeding; or be-
cause he or she is a party thereto; or the husband or wife of a party
thereto, or of a person in whose behalf an action or special proceed-
ing is brought, prosecuted, opposed, or defended.
§ 829. [Am'd 1877, 1881.] When Party, etc., Cannot be Exam-
ined. — Upon the trial of an action, or the hearing upon the merits of
a special proceeding, a party or a person interested in the event, or a
person from, through or under whom such a party or interested per-
the court is held shall be the rules of decision as to the competency of wit-
nesses in the courts of the United States in trials at common law, and in
equity and admiralty."
It was amended to read as set forth here by Act June 29, 1906, c. 3G0S,
cited above.
All persons within the jurisdiction of the United States are entitled to the
same right to give evidence as are white citizens, by Rev. St. § 1977.
45 Taney, C. J., in United States v. Reid, 12 How. 361, 13 L. Ed. 1023
(1S51): "Nor is there any act of Congress prescribing in express words the
rule by which the courts of the United States are to be governed, in the
admission of testimony in criminal cases. But we think it may be found
with sufficient certainty, not indeed in direct terms, but by necessary impli-
cation, in the acts of 17S9 and 1790, establishing the courts of the United
States, and providing for the punishment of certain offenses. And the law
by which, in the opinion of this court, the admissibility of testimony in
criminal cases must be determined, is the law of the state, as it was when
the courts of the United States were established by the Judiciary Act of
17S9. The subject is a grave one, and it is therefore proper that the court
should state fully the grounds of its decision."
In Logan v. United Slates, 111 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429
(1S92), a similar rule was applied where the question arose in one of the
states admitted at a later pei'iod. But see Rosen v. United States, 245 U. S.
467, 38 Sup. Ct. 148, 62 L. Ed. 400 (1918), nnte, page 14S.
4o The statutes of the various states differ more or less in wording and in
detail, so that it is impracticable to attempt any extensive comparison. The
cases following in this subsection are merely intended to illustrate some of
the main features. The student must necessarily be left to work out -the
exact rule in any given jurisdiction, from a construction of the particular
statute involved. — Editor.
vScc. 1) COMPETENCY 17L
son derives his interest or title, by assignment or otherwise shall not
be examined as a witness in his own behalf or interest, or in behalf
of the party succeeding to his title or interest against the executor, ad-
ministrator, or survivor of a deceased person, or the committee of a
lunatic, or a person deriving his title or interest from, through or under
a deceased person or lunatic, by assignment or otherwise, concerning a
personal transaction or communication between the witness and the
deceased person or lunatic, except where the executor, administrator,
survivor, committee or person so deriving title or interest is examined
in his own behalf, or the testimony of the lunatic or deceased person
is given in evidence concerning the same transaction or communication.
A person shall not be deemed interested for the purpose of this section,
by reason of being a stockholder or officer of any banking corporation
which is a party to the action or proceeding, or interested in the event
thereof.
PETERSON v. MERCHANTS' ELEVATOR CO.
(Supreme Court of Minnesota, 1910. Ill Minn. 105, 126 N. W. 534, 27 L. R
A. [N. S.] 816, 137 Am. St. Rep. 537.)
Brown, J. 47 Defendant was engaged in operating a grain elevator
in the city of Minneapolis. Plaintiff's intestate was in its employ as
a laborer, and was killed while in the discharge of his duties by com-
ing in contact with an uncovered dangerous machine, and this action
was prosecuted by his personal representative in behalf of the next
of kin. A verdict was returned for plaintiff, and defendant appealed
from an order denying its alternative motion for judgment notwith-
standing the verdict or a new trial. * * *
Defendant called as a witness one of its stockholders, J. C. Hensey,
superintendent in charge of the elevator, and elicited from him the
fact that some time prior to the accident he had a conversation with de-
cedent in reference to the motor and the uncovered cogwheels, and he
was asked the question, "What was the conversation ?" Upon the fact
appearing that the witness was a stockholder in defendant corpora-
tion, the court sustained plaintiff's objection to the question, based up-
on section 4663, Rev. Laws 1905, which prohibits the giving in evi-
dence by a party or person interested in an action a conversation with
a deceased party or person. The subject was referred to again later
in the examination of the witness, and he was asked whether he
said anything to decedent about oiling the motor, and the court a
sustained plaintiff's objection. Again, at the close of the trial, cor.
interrogated the witness further in reference to a conversation with
decedent, the last question being, "But you did have some talk with him
after the hood had been taken off the gear?" To which the witn
*i Parts of opinion omitted.
1~- WITNESSES (Ch. 2
answered in the affirmative. Upon objection being made to further evi-
dence along that line, counsel offered to show that the witness warned
decedent of the dangers of working about the motor when the cover
was off and instructed him how safely to oil it. The court sustained
plaintiff's objection, and the ruling is assigned as error.
The fact that the witness was a stockholder in the corporation was
not disputed, and the question presented is whether he came within
the provisions of the statute respecting the admissions of evidence of
conversations with a deceased person. The question does not require
extended discussion. That the witness was an interested party, within
the meaning of the statute, cannot be seriously questioned. He was
a stockholder and pecuniarily interested in the result of the action — a
direct, and not a remote or speculative, interest. The case of Perine v.
Grand Lodge, 48 Minn. 82, 50 N. W. 1022, is not in point. The de-
fendant in that case was a mutual benefit association, and the person
called as a witness for the purpose of giving a conversation with a de-
ceased member, upon whose certificate of membership the action was
founded, was not a member of the association at the time the conver-
sation took place, and, though he was such when called as a witness,
he did not become a member until after the death of the certificate
holder, and not until the rights of the parties thereunder had be-
come fully vested. His interest in the result of that action was ex-
tremely remote, and not such as to come within the meaning of the
statute.
We need not stop to inquire whether in an action of this kind a stock-
holder of a corporation, who is also its superintendent and manager,
may be heard to testify to the fact that in his capacity as manager or
superintendent he warned an employe, since dead, of the dangers of his
employment, and which dangers were the cause of his death. Robbins
v. Legg, 80 Minn. 419, 83 N. W. 379. Such is not the question here
presented. The examination of the witness upon this subject clearly
indicated to the court below that the warning, if any was given, was
the result of. a conversation with decedent. The witness, on the oc-
casions when the subject was under inquiry, was asked whether he
had a conversation or talk with decedent, and, upon an affirmative an-
swer being given, finally made the offer to show the warning; and
though at one point in the examination of the witness counsel stated
that he did not intend to show a conversation, it is clear that the
"warning" was in fact a part of a conversation and was properly ex-
cluded. * * *
Order affirmed. 48
48Accord: Albers Com. Co. v. Sessel, 193 111. 153, 61 N. E. 1075 (1001);
Cronin v. Supreme Council Royal League, 199 111. 228, 65 N. E. 323, 93 Am
St. Rep. 127 (1902), member of a mutual benefit society.
Compare Talbot v. Laubheim, 188 N. Y. 421, 81 N. E. 163 (1907), where the
remote interest of a corporation not a party did not disqualify an officer of
such corporation.
SeC.l) COMPETENCY 1 » .".
* MERRIMAN v. WICKERSHAM.
(Supreme Court of California, 1904. 141 Cal. 567, 75 Pac. ISO.)
Henshaw, J. 49 Plaintiff is the assignee of the Burnham & Marsh
Company, a corporation, real estate brokers. The action is for com-
missions due upon an alleged sale for F. A. Wickersham. Suit was
commenced against Wickersham in his lifetime. He suffered default.
Plaintiff afterwards consented that his default might be set aside.
His death following, his executrix was substituted as defendant.
* * *
The Burnham & Marsh Company is a corporation. Mr. Marsh, vice
president and one of its principal stockholders, was allowed to testify
to matters and facts in issue. It is contended that the evidence was
improperly admitted, in violation of section 1880 of the Code of Civil
Procedure, which provides that "the following persons cannot be wit-
nesses : * * * Parties, or assignors 50 of parties to an action or
proceeding, or persons in whose behalf an action or proceeding is pros-
ecuted, against an executor or administrator, upon a claim or demand
against the estate of a deceased person, as to any matter of fact occur-
ring before the death of such deceased person." At common law in-
terest disqualified any person from being a witness. That rule has
been modified by statute. In this state interest is no longer a dis-
qualification, and the disqualifications are only such as the law imposes.
Code Civ. Proc. § 1879.
An examination of the authorities from other states will disclose
that their decisions rest upon the wordings of their statutes, but that
generally, where interest in the litigation or its outcome has ceased
to disqualify, officers and directors of corporations are not considered
to be parties within the meaning of the law. In example, the statute
of Maryland (Pub. Gen. Laws, art. 35, § 2) limits the disability to the
"party" to a cause of action or contract, and it is held that a salesman
of a corporation, who is also a director and stockholder, is not a party,
within the meaning of the law, so as to be incompetent to testify in
an action by the company against the other party, who is insane or
dead. Flach v. Gottschalk Co., 88 Md. 368, 41 Atl. 908, 42 L. R. A.
745, 71 Am. St. Rep. 418.
To the contrary, the Michigan law expressly forbids "any officer or
agent of a corporation" to testify at all in relation to matters which,
if true, must have been equally within the knowledge of such deceased
person. Howell's Ann. St. Mich. § 7545. The Supreme Court of
Michigan, in refusing to extend the rule to agents of partnerships,
said: "It is conceded that this testimony does not come directly with
*9 Parts of opinion omitted.
50 As to the competency of an assignor when not expressly disqualified by
statute, see Clendennin v*. Clancy, 82 N. J. Law, 418, 81 Atl. 750, V2 L. EL a
(N. S.) 315 (1911), where the cases are collected.
174 WITNESSES (Ch. 2
in the wording of the statute, but it is said there is the same reason
for holding the agent of a partnership disqualified from testifying that
there is in holding the agent of a corporation. This is an argument
which should be directed to the legislative rather than to the judicial
department of government. * * * The inhibition has been put upon
agents of corporations, and has not been put upon agents of partner-
ships. We cannot, by construction, put into the statute what the Leg-
islature has not seen fit to put into it." Demary v. Burtenshaws' Es-
tate, 131 Mich. 329, 91 N. W. 648.
In New York the statute provides that against the executor, ad-
ministrator, etc., "no party or person interested in the event, or person
from, through, or under whom such party or interested person de-
rives his interest or title shall be examined as a witness in his own be-
half or interest." This is followed by the exception that a person shall
not be deemed interested by reason of being a stockholder or officer
of any banking corporation which is a party to the action or proceed-
ing or interested in the event thereof. Ann. Code Civ. Proc. N. Y. §
829. Here it is apparent that the interest of the witness is made a
disqualification, and it is of course held that stockholders and officers
of corporations other than banking corporations are under disqualifi-
cation. Keller v. West Bradley Mfg. Co., 39 Hun (N. Y.) 348.
To like effect is the statute of Illinois, which declares that no party
to any civil action, suit, or proceeding, or person directly interested in
the event thereof, shall be allowed to testify under the given circum-
stances. Under this statute it is held that stockholders are interested,
within the meaning of the section, and are incompetent to testify
against the representatives of the deceased party. Albers Commis-
sion Co. v. Sessel, 193 111. 153, 61 N. E. 1075. The law of Missouri
disqualifies "parties to the contract or cause of action," and it is held
that a stockholder, even though an officer of the bank, is not disqual-
ified by reason of his relation to the corporation when he is not ac-
tually one of the parties to the making of the contract in the interest
of the bank.
Our own statute, it will be observed, is broader than any of these.
It neither disqualifies parties to a contract nor persons in interest, but
only parties to the action (Code Civ. Proc. §§ 1879, 1880) ; and thus
it is that in City Savings Bank v.' Enos, 135 Cal. 167, 67 Pac. 52, it
has been held that one who is cashier and at the same time a stock-
holder of a bank was not disqualified, it being said: "To hold that
the statute disqualifies all persons from testifying who are officers or
stockholders of a corporation would be equivalent to materially amend-
ing the statute by judicial interpretation." It is concluded, therefore,
that our statute does not exclude from testifying a stockholder of a
corporation, whether he be but a stockholder, or whether, in addi-
tion thereto, he be a director or officer thereof.
The examination of the witness Page undoubtedly discloses that he
had an interest in the outcome of the litigation, but that fact did no*
Sec. 1) COMPETENCY 175
bring his testimony within the inhibition of the law. It was not es-
tablished that he was a person "in whose behalf the action was pros-
ecuted," and his testimony was therefore properly admitted.
For the foregoing reasons, the judgment and order appealed from
are affirmed.
We concur: McFarland, J. ; Lorigan, J.
vVHITHED v. WOOD et al.
(Supreme Judicial Court of Massachusetts, 1S70. 103 Mass. 563.)
Contract on a promissory note made by James M. Wood, one of the
defendants, under date of July 25, 1866, for $400 payable, with in-
terest, four months from date, to Henry W. Dresser, the other de-
fendant, or his order, and indorsed in blank by Dresser. Writ dated
March 15, 1867. Trial, and verdict for the plaintiff, in the superior
court, before Rockwell, J., who allowed a bill of exceptions of which
the following is the material part :
"Dresser did not defend the action, but was defaulted at the first
term, and died after said first term and before the trial. Wood de-
fended the action, and, being a witness at the trial, called by his coun-
sel, admitted that the signature to the note was his, but offered to
prove, by his own testimony, that the words, 'with interest,' were
added to the note by Dresser after it was signed and delivered to Dres-
ser and without the consent or knowledge of Wood, and that the note
including the words so added was in the handwriting of Dresser. To
this testimony the plaintiff's counsel objected, and the judge excluded
the evidence and refused to admit the testimony thus offered, and to
these rulings Wood excepted."
Gray, J. The contract in issue and on trial was a promissory note
made by Wood to Dresser, and by him indorsed to the plaintiff. Dres-
ser, one of the original parties to that contract, was dead, and Wood,
the other party, was therefore rightly not permitted to testify in his
own favor. Gen. St. 1860, c. 131, '§ 14 ; 51 Byrne v. McDonald, 1
Allen, 293.
si Section 14, c. 131, Gen. St. Mass. 1S60: "Parties in civil actions and pro-
ceedings, including probate and insolvency proceedings, suits in equity, and
divorce suits, (except those in which a divorce is sought on the ground of
alleged adultery of either party,) shall be admitted as competent witnesses
for themselves or any other party ; and in any such case in which the wife
is a party or one of the parties, she and her husband shall be competent
witnesses for and against each other, but they shall not be allowed to tes-
tify as to private conversations with each" other: provided, that whore one
<>:' the original parties to the contract or cause of action in issue and on
trial is dead, or is shown to the court to be insane, the other party shall not
admitted to testify in his own favor; and where an executor or admin-
istrator is a party, the other party shall not be admitted to testify in his
own favor, unless the contract in issue was originally made with a person
who is living anu competent to testify, except as to such acts and cunuuet-'i
176 WITNESSES (Ch. 2
The bill of exceptions does not show any waiver of the objection
to his competency ; for it is at least ambiguous upon the point whether
his admission of his signature was not made as party and not as wit-
ness, and the objection taken before he had begun to testify.
Exceptions overruled.
BANKING HOUSE OF WILCOXSON & CO. v. ROOD.
(Supreme Court of Missouri, 1S96. 132 Mo. 256, 33 S. W. 816.)
MacFarlanE, J. B2 Plaintiff, a banking corporation, presented to
the probate court for allowance against the estate of N. P. Rood,
deceased, a note for $515. On appeal to the circuit court, plaintiff
recovered judgment, and defendant appealed. On the trial, James M.
Wilcoxson and Harrison Wilcoxson, both stockholders in the bank, —
the former its cashier, and the latter its president, — were permitted to
testify as witnesses. Defendant objected to their competency, on the
ground that they were both interested in the result of the suit, and
Rood, the other party to the note, was dead. These witnesses testi-
fied that the name signed on the note was the proper signature of de-
ceased, and also that they saw him write it. In the opinion of the
Kansas City court of appeals, to which the appeal was first taken, these
witnesses were incompetent to testify to any fact, on account of their
interest; but one of the judges being of the opinion that the decision
is in conflict with the decision in the case of Bates v. Forcht, 89 Mo.
121, 1 S. W. 120, the appeal was certified to this court.
There can be no doubt that these witnesses would have been incom-
petent under the general rule at common law. The rule is correctly
given in the opinion of the court of appeals, which is sustained by the
authorities therein cited. * * * A class of cases excepted out of
the general rule, on the ground of convenience and necessity, "is that
of agents, carriers, factors, brokers, and other servants, when offered
to prove the making of contracts, the receipt or payment of money,
the receipt or delivery of goods, and other acts done in the scope of
their employment." 1 Greenl. Ev. § 416. Under this exception, the
opinion in the Bates Case, supra, includes a cashier and teller of a
bank, and holds that at common law they were competent witnesses
"to charge the defendant on a promissory note, or for money lent or
unpaid, or obtained from the officer without the security he should
have received." It is questionable, as seen, whether the exemption
would apply at common law in case the cashier was also a stockholder
in the corporation, and directly interested in the result of the lftiga-
aa have been done or made since the probate of the will, or the appoint-
ment of the administrator."
The proviso in this statute appears to have served as a model for several
of the Western states; e. g., Rev. St. Mo. 1909, § 6354.
62 Part of opinion omitted.
Sec. 1) COMPETENCY 177
tion. "But," says the court, "whatever the rule at common law as fo
the interest of a witness disqualifying him, it is superseded by section
4010, Rev. St. 1879 (now section 8918, Rev. St. 1889), which declares
that no person shall be disqualified as a witness by reason of his in-
terest in the event of the suit, as a party or otherwise. The rejected
evidence was clearly competent under our statute, if not under the
rule at common law." As the witness in the Bates Case was not only
the cashier of the bank, but also a stockholder therein, it is clear that
the opinion of the court o£ appeals is directly in conflict with that de-
cision.
But counsel challenge the correctness of the decision in Bates v.
Forcht, and claim that it is not consistent with subsequent decisions
of this court. The statute declares that no person shall be disqualified
as a witness in any civil suit by reason of his interest in the event of
the same, as a party or otherwise : "provided, that in actions where
one of the original parties to the contract or cause of action in issue
and on trial is dead * * * the other party to such contract or
cause of action shall not be admitted to testify." This court has ever
undertaken to conform its decisions to the spirit, rather than to the
strict letter, of this statute. Orr v. Rode, 101 Mo. 398, 13 S. W. 1066.
The primary object and purpose of the law, evidently, was to remove
the disabilities by which parties to the record and parties interested
were at common law rendered incompetent to testify. The exception
was intended to prevent the injustice that would arise in permitting
one party to the contract or cause of action to testify when the lips of
the other are sealed in death. This equitable construction has been
applied in a variety of cases. Stanton v. Ryan, 41 Mo. 510; Williams
v. Edwards, 94 Mo. 447, 7 S. W. 429; Orr v. Rode, supra; Leach
v. McFadden, 110 Mo. 587, 19 S. W. 947; Bank v. Payne, 111 Mo.
296, 20 S. W. 41 ; Miller v. Wilson, 126 Mo. 54, 28 S. W. 640.
It will be observed that the proviso does not exclude the testimony
of one party in interest when the other party in interest is dead, but
confines the exclusion to a party to the contract or cause of action,
while the body of the statute removes the disability of a person caused
by his interest in the suit. The exclusion of the proviso is not as
broad as the inclusion of the body of the act. Hence an examination
of the cases will show that a "party to the contract" has been con-
strued to mean the person who negotiated 5S the contract, rather than
63 For the contrary view, that the negotiating agent of a corporation is
not a party to the contract within the meaning of the statute, see Flach v.
Gottschalk Co., SS Md. 368, 41 Atl. 908, 42 L. R. A. 745, 71 Am. St. Kep. 41S
(1898).
In Missouri the negotiating agent of a natural person is not disqualified bv
the death of the other party. Clark v. Thias, 173 Mo. 02S. 73 S. W. 616 (1903)
The death of the negotiating agent, however, disqualifies the ad\ i
party as to transactions between them. Wend over v. Baker, 121 Mo. 273,
Hint.Ev— 12
l~ s WITNESSES (Ch. 2
the person in whose name and interest it was made. Thus, though
one party in interest be dead, the other party will be a competent wit-
ness, if the contract in issue was negotiated by an agent of deceased
who is living at the time of the trial. Miller v. Wilson, supra. If both
parties to a contract be living, one of them will not be permitted to
testify, if the agent who acted for the other is dead. Williams v.
Edwards, supra. If one member of a partnership be dead, the other
party to a partnership contract would only be excluded from testifying
to transactions with the deceased partner. Stanton v. Ryan, supra. A
principal in a bono), though not a party to {he suit against his sureties,
is not a competent witness to prove payments to an agent of plaintiff
who is dead. Leach v. McFadden, 110 Mo. 588, 19 S. W. 947. It
will be seen from these decisions that the statements or dicta found
in some of the decisions, that when one party to a contract or cause of
action is dead the common law is in full force as to the competency
of the survivor as a witness in his own behalf, is not strictly correct
under all circumstances. His interest does not exclude him as at
common law. He is excluded because he and deceased are both par-
ties to the contract or cause of action.
The declaration in the Bates Case, therefore, that no person is dis-
qualified as a witness by reason of his interest in the event of the
suit, under the construction given the statute by this court, is not open
to the criticism counsel makes against it. The witnesses in that case
testified that the name written upon the note was the signature of de-
ceased. The testimony was to an independent fact, which was in no
manner connected with the transaction upon which the attempt was
made to charge the firm of which deceased was a member. In a case
somewhat analogous, this court, speaking through Brace, J., said:
"They [the witnesses who were interested in the suit] were permitted
to testify merely to a physical fact, the existence" of which was inde-
pendent of any and all contracts between the parties, — a fact not pe-
culiarly within the knowledge of the defendants and any agent of the
bank, arising from a transaction between them and such agent, but
of which they obtained cognizance by their sense of sight, and which
was open to the cognizance of any other witness to whom an oppor-
tunity was afforded, at the time, of inspecting the note in suit, and
concerning which one of the plaintiff's officers, who had such oppor-
tunity, testified, and but for whose evidence as to such fact the plain-
25 S. W. 918 (1894). Likewise the death of the negotiating agent disquali-
fies the surviving agent of a corporation as to transactions between them.
I lam & Ham Lead & Zinc Inv. Co. v. Catherine Lead Co., 251 Mo. 721, 158 S.
W. :;G9 (1913).
In actions for death, the statute is not construed as disqualifying the
survivor. Entwhistle v. Feighner, GO Mo. 214 (1S75). But the death of a
servant for whose tort the master is sued disqualifies the plaintiff. Leavea
v. Southern Ry. Co., 2GG Mo. 151, 181 S. W. 7, L. It. A. 191GD, 810, Ann.
Cas. 1918B, 97 (1915).
Sec. 1) COMPETENCY 17!)
tiff would have made out no case against the defendant." Bank v.
Fiyne, supra.
Our conclusion, therefore, is that the stockholders of a corporation
are not incompetent, on account of interest, to testify as witnesses in
a case involving- a contract with the corporation, though the other
party to the contract be at the time dead. His competency depends up-
on the character of the evidence offered. He will be incompetent to
testify in regard to transactions and negotiations between himself, as
agent of the corporation, and deceased. In regard to independent
facts, he will be competent. It follows that the witnesses were compe-
tent to testify to the genuineness of the signature, from their knowl-
edge of it or as experts. Whether they were competent to testify that
they saw deceased sign the note, would depend upon circumstances.
Signing the note by deceased was a part of the transaction which re-
sulted in the contract in issue, and the agent of the corporation who
conducted the negotiations, whether a stockholder or not, could no
more testify to that fact than to any other fact connected with the
negotiation. It does not expressly appear with which officer of the
bank deceased dealt, in making the contract which is the basis of this
suit. The circumstances are sufficient to admit of the inference that
it was with the cashier. This witness only testified in chief that the
name written on the note was the signature of deceased. The court
refused to permit him to testify that the note was a renewal of one
then held by the bank. The evidence of the witness that he saw
deceased sign the note was called out by a direct question put to him
on cross-examination. Defendant is not in a situation to complain
of the answer he himself invoked. Especially is this so as no excep-
tion was taken to the answer. It does not appear what, if any, part
Harrison Wilcoxson took in the negotiations which resulted in making
the note in suit. He was an officer of the corporation, and was pres-
ent in the bank at the time his testimony tends to prove the note was
made. Presumably, he had power to make the contract. His compe-
tency depends upon the part he took in making it. As the trial court
held him competent for all purposes, prejudicial error may have been
committed.
We think, therefore, that the case should be retried, in accordance
with the views herein expressed. The judgment of the circuit court
is reversed, and the cause remanded.
180 WITNESSES (Ch. 2
HURLBUT v. MEEKER.
(Supreme Court of Illinois, 1882. 104 111. 541.)
Craig, J. 54 This was an action brought by Samuel E. Hurlbut,
for the use of Eben Higgins, against Elizabeth Meeker, executrix of
the estate of Joseph Meeker, deceased, to recover the amount due on
a promissory note executed June 23, 1865, by Hurlbut Bros. & Co.,
payable to the order of S. E. Hurlbut, amount $405.40, due on demand,
after date. It was claimed by the plaintiff that Joseph Meeker was a
member of the firm of Hurlbut Bros. & Co. at the time the note was
executed, and hence his liability as one of the makers of the instru-
ment. On the trial of the cause in the circuit court, before a jury,
a judgment was rendered in favor of the defendant. This judg-
ment, on appeal, was affirmed in the Appellate Court.
As to the controverted questions of fact involved on the trial in
the circuit court we have no concern. The affirmance of the judg-
ment of the circuit court by the Appellate Court was a final settle-
ment of these matters in favor of the defendant, which cannot be
reviewed here.
On the trial of the cause in the circuit court, appellant called J. B.
Hurlbut as a witness, and also offered the deposition of D. N. Hurl-
but as evidence. The offered evidence having been objected to, on
the ground that the two witnesses were both members of the firm of
Hurlbut Bros. & Co., 'and hence interested in the result of the suit,
the court sustained the objection, and refused to allow the witness to
testify or the deposition to be read to the jury, and this decision is
assigned as error. Under section 2, chapter 51, Rev. Stat. 1874, a
party to a civil action, or person directly interested in the event there-
of, is not a competent witness where the adverse party sues or defends
as executor, administrator, heir, legatee or devisee of any deceased
person, with certain specified exceptions named in the act, in none of
which does the present case fall. Under this statute, we are satisfied
that neither J. D. Hurlbut nor D. N. Hurlbut was a competent witness
for the plaintiff. They were not made defendants in the action, but
were directly interested in the event of the suit. They were members
of the firm of Hurlbut Bros. & Co. at the time the note was executed,
and were makers of the note in suit, and hence had a direct interest
in the result of the pending action. Eangley v. Dodsworth, Ex'x,
81 111. 86, is a case in point, and the same principle which governed
the decision of that case must control here.
It is also said the witness J. B. Hurlbut was called by defendant,
and examined at length by her, and plaintiff was deprived of the right
to cross-examine the witness by the court. If this statement was cor-
rect the decision of the court would clearly be erroneous ; but an ex-
6* Part of opinion omitted.
Sec. 1) COMPETENCY 181
animation of the record will show that the witness was called by the
defendant simply to prove a handwriting, and the court confined the
_ , cross-examination, as it should have done, to the examination in chief.
(_When a witness is called to prove a single fact, the opposite party,
under the guise of a cross-examination, can not enter upon a gen-
eral examination of the witness, but the cross-examination must be
confined to the examination in chiefTJThis rule, we apprehend, is
well established by the authorities. * * *
As no substantial error appears in the record, the judgment will
be affirmed.
Judgment affirmed.
SB
CLIFT v. MOSES et al.
(Court of Appeals of New York, 1SS9. 112 N. Y. 426, 20 N. E. 392.)
Appeal from judgment of the General Term of the Supreme Court
in the fourth judicial department, entered upon an order made April
20, 1886, which affirmed a judgment in favor of plaintiff entered up-
on a verdict. (Reported below, 44 Hun, 312.)
This action was brought by plaintiff, as survivor of the firm of C.
Pardee & Co., upon four promissory notes made by the firm of Dodge
& Moses, composed of defendants. Defendant Moses, who alone ap-
peared and answered, among other things, alleged payment of the
notes.
The facts, so far as material, are stated in the opinion.
Andrews, J. 68 * * * The theory of the defense, therefore, as
developed by the testimony of Mrs. Moses, was that the notes were
paid by the transfer by Moses to Pardee of his interest in the dredge
property, and that they were delivered up to him by Pardee in consid-
eration of such transfer. The defendant Moses was called as a wit-
ness in his own behalf, immediately after the conclusion of his wife's
testimony. He was first interrogated directly as to transactions be-
tween himself and Mr. Pardee, and the questions were excluded, and
the correctness of those rulings is not now assailed. These were fol-
lowed by a series of questions, put in a great variety of forms, of
55 Accord: Charlotte Oil & Fertilizer Co. v. Rippy, 124 N. C. 643, 32 S. E.
9S0 (1899), in which there is an extended discussion of the interest of the
witness in this class of cases.
The bare possibility of an action over against (he witness is not suffi-
cient to disqualify. Franklin v. Kidd, 219 N. Y. 409, 114 N. B. 839 (1916).
The modern cases do not appear to recognize the liability of a servant to
his master as sufficient to disqualify him as a witness in an action by the
representative of a deceased person against the master for the act of such
servant. Nearpass v. Gilman. 104 N. Y. 506, 10 N. E. 894 (1SS7) ; Feitl v. Chi-
cago City Ry. Co., 211 111. 279, 71 N. E. 991 (1904); O'Toole v. Faulkner, 34
Wash. 371, 75 Pac. 975 (1904). But in such cases, if the servant is Joined
with the master, he is disqualified as a party. Sullivan v. Corn Products
Refining Co., 245 111. 9, 91 N. E. 643 (1910).
6« Part of opinion omitted.
182 WITNESSES (Ch. 2
which the following are samples : "Have you ever had the notes in
suit in your possession ?" "Did you see the notes in suit in November
or December, 1875?" "Did you ever see the notes in the possession
of your wife when Mr. Pardee was not present, or in your wife's
hands when Mr. Pardee was not present?"
The questions were objected to as inadmissible under section 829 of
the Code, and were excluded, and, we think, properly. The plaintiff
was the survivor of a deceased person within section 829. Green v.
Edick, 56 N. Y. 613. The defendant Moses could not, therefore, be
examined as a witness in his own behalf or interest "concerning a
personal transaction or communication" between himself and Pardee,
unless the plaintiff had been examined in his own interest "concerning
the same transaction or communication." Section 829. The primary
question is whether the evidence sought to be elicited by the questions
put to Moses, touching the possession of the notes prior to Pardee's
death, was evidence" concerning a personal transaction between the
witness and Pardee. The evidence was very material upon the issue
of payment. If the notes were in the possession of Moses prior to
Pardee's death, the presumption of payment would be very strong,
and if he saw them in the possession of his wife, in 1875, or 1876, or
subsequently during Pardee's life-time, it would be a strong circum-
stance in corroboration of her testimony.
The questions do not on their face call for a disclosure of a person-
al transaction of the witness with Pardee, and if it be the true con-
struction of section 829, that a party may be a witness against the
representative of a deceased party as to any fact which is not a narra-
tive of an occurrence between the witness and the deceased, or if any
fact may be proved by the survivor which does not involve on its
face a direct statement of a transaction or communication between
himself and the deceased, then the evidence of Moses was improperly
excluded. But this literal construction of the section has not been
adopted by the courts. It has been held with general uniformity that
the section prohibits, not only direct testimony of the survivor that a
personal transaction did or did not take place, and what did or did
not occur between the parties, but also every attempt by indirection to
prove the same thing, as by negativing .the doing of a particular thing
by any other person than the deceased, or by disconnecting a particu-
lar fact from its surroundings, and testifying to what on its face may
seem an independent fact, when in truth it had its origin in, or direct-
ly resulted from, a personal transaction. It may be too broad to say
that where the ultimate fact cannot be proved under this section by a
witness, he cannot testify to any of a series of facts from which the
ultimate fact may be inferred; but if there is introduced into this
statement the qualification that he cannot testify as to any of the
subsidiary facts which originated in a personal transaction with the
deceased, or which proceeded from such transaction as a cause, the
statement so qualified may be substantially correct.
Sec. 1) COMPETENCY ' 1S3
t
Reference to a few of the decided cases will illustrate the general
rule of construction to which we have adverted. In Grey v. Grey,
supra [47 N. Y. 552], the action was by an administrator on a note
made by the son of the intestate, the defendant in the action. The
note was in possession of the son, who claimed that it had been de-
livered to him by his father before his death, and he was permitted to
prove this by his own testimony, under objection, and also to testify
that he received it from no one else. The court held that the objection
was well taken, Peckham, J., saying: "The witness was incompetent
to testify that he received it from his father. If he could not testify
to that directly, he was equally incompetent to prove it indirectly by
stating in substance that he received it from no one else." In Koeh-
ler v. Adler, 91 N. Y. 657, the question was whether a check given by
the plaintiff to the defendant's intestate was a personal transaction be-
tween them, or a transaction in which the plaintiff acted for the Stone-
wall Oil Company. The plaintiff offered himself as a witness on the
trial, and was asked by his counsel whether the check had anything
to do with the affairs of the oil company. The question was objected
to under section 839, and excluded. This court sustained the ruling
on the ground that it was an indirect attempt to show that the check
was a personal transaction between the plaintiff and the, intestate.
* * *
To permit Moses to testify to his possession of the notes prior to
Pardee's death, or that he saw them in his wife's hands, was equiva-
lent, under the circumstances, to permitting him to testify that he re-
ceived the notes from Pardee, and, as he could not be permitted to
testify directly to that fact, he was equally incompetent to testify to
a possession which was the inseparable incident and result of a per-
sonal transaction. The statute cannot be evaded by framing a ques-
tion which on its face relates to an independent fact, when it is dis-
closed by other evidence that the fact had its origin in, and directly
resulted from, a personal transaction. * * *
Affirmed. 157
07 Compare Pinney v. Orth, S8 N. Y. 451 (1SS2), that a survivor might testify
that a third person was not present. For a collection of the cases, see
Blount v. Blount, 158 Ala. 242, 48 South. 581, 21 L. R. A. (N. S.) 755, 17
Ann. Cas. 392 (1909).
See Grlswold v. Hart. 205 N. Y. 384, 98 N. E. 918, 42 L. R. A. (N. S.) 320,
Ann. Cas. 191 3E, 790 (1912), that a survivor cannot testify to a conversation
by the deceased. though witness took no part in it. For a collection of cases
on this latter point, see notes to Griswold v. Hart, 42 L. R. A. (N. S.) 320
(1912), and Wall v. Wall. 45 L. R. A. (N. S.) 583 (1913). See, also, Helbig
v. Citizens' Ins. Co.. 234 111. 251, 84 N. E. 897 (190S).
184 WITNESSES (Ch. 2
IV. Marital Relationship 58
MARY GRIGGS' CASE.
(Court of King's Bench, 1660. T. Raym. 1.)
Mary Griggs was indicted upon the statute of 1 Jac. 1, cap. 11, for
that she the 28th of February, 1653, was married to one Nicholas
Coats, and that she afterwards, viz. the 10th of October, 1659, the first
husband being then alive, married Edward Cage, &c. Upon not guilty
pleaded, the first husband was produced at the trial as a witness to
prove the first marriage ; but the Court totally refused to admit of his
testimony, and said, that a wife could not be admitted to give evidence
against her husband, nor the husband against his wife in any case,
excepting treason, because it might occasion implacable dissention,
according to 1 Inst. 6 b. And they denied the Lord Audley's Case in
Hutton, 116, to be law; so the prosecutor having no other consider-
able witness, the jury brought in the prisoner not guilty.
ANONYMOUS.
(Court of Queen's Bench, 1710. 11 Mod. 224.)
In an action of assault and battery brought by the husband against
the defendant for an intent to ravish his wife, she was admitted a
witness.
Holt, Chief Justice, said, it was because the wife cannot give any
consent, though it be not felony.
Holt, Chief Justice, held, that A. having laid five pounds on the
event of the cause, was no objection to the wife of A. being admitted
to be a witness, because it shall not be in the power of a third person
to disqualify one who otherwise would be a good witness ;
And thereupon she was admitted to give evidence. 69
8 The rule disqualifying one spouse from testifying against the other is
based on an entirely different policy from that which excludes the one as
a witness for the other. The latter rule is based on much the same notions
as those excluding a party or interested witness from testifying in his own
favor, that is, a bias rendering the testimony untrustworthy.
The exclusion of one spouse from testifying against the other is based on
a theory of preserving marital harmony and confidence, and so blends into
the privilege for certain communications between husband and wife.
The questions of incompetency and of privilege growing out of the mari-
tal relation are so closely connected that it appeared advisable to treat
them together. — Editor.
6 9 There are a few other instances where the wife has been admitted on
the ground of necessity; e. g., to prove the contents of a lost trunk. Il-
linois Cent. Ry. Co. v. Taylor, 24 111. 323 (1S60). Under modern statutes
the wife is frequently made competent to testify to transactions carried on
by her as agent for the husband.
Sec. 1) COMPETENCY 18f>
REX v. AZIRE.
(Court of King's Bench, 1725. 1 Strange, 633.)
On indictment against the husband for an assault upon the wife,
the Chief Justice allowed her to be a good witness for the King, and
cited Lord Audley's Case, State Trials, vol. I. 00
WILLIAMS v. JOHNSON.
ONisi Prius, 1722. 1 Strange, 504.)
The plaintiff brought this action against the daughter's husband for
her wedding cloaths ; and the defence was, that the goods were fur-
nished on the credit of the father ; and to prove this the mother who
was present at the chusing the goods was called to charge her husband,
and allowed.
REX v. FREDERICK et al.
(Court of King's Bench, 1725. 2 Strange, 1095.)
The defendants were indicted for a joint assault. And at the trial
in Middlesex, it was insisted to examine the wife of the defendant
Tracy as a witness for the other defendant: but there having been
material evidence given against the husband, and it being a joint tres-
pass, and impossible to separate the cases of the two defendants in the
account to be given of the transaction; the Chief Justice refused to
let her be examined. 91
BENTLEY v. COOKE.
(Court of King's Bench, 1784. 3 Doug. 422.)
This was an action of assumpsit by a woman suing as a feme sole
tried before Buller, J. After the plaintiff had proved her case, the de-
fendant called one James Ramsden, who proved that he was married
to the plaintiff, and produced a copy of the marriage register. On his
so But the wife is not competent on a charge of assault on her by the
husband prior to the marriage. State v. Evans, 138 Mo. 116, 39 S. W. 462,
60 Am. St. Rep. 549 (1897); Norman v. State, 127 Tenn. 340, 155 S. W. 135,
45 L. R. A. (N. S.) 399 (1913). See, also, State v. Wlnnett, 48 Wash. 93,
92 Pac. 904 (1907), where, on a similar charge, it was thought that the rule
was violated by exhihiting the wile to the jury, who could observe her ap-
pearance.
oi And so in a civil case. Hawksworth v. Shawlor, 12 M. & W. 45 (18
The wife of a defendant who has been convicted is competent agah
another defendant, though she hopes by her testimony to obtain a pardon
for her husband. Rudd's Case, 1 Leach, 135 (1775).
186 WITNESSES (Ch. 2
cross-examination, he stated, that he and his wife had been long sep-
arated by agreement without deed, and that the plaintiff maintained
herself, and allowed him a certain sum yearly. The plaintiff having
been nonsuited on the ground of the coverture, a rule for a new
trial was obtained on the incompetency of the husband as a witness.
Lee and Peckham showed cause. The husband was competent.
He was, in fact, speaking against his own interest, for whatever his
wife recovered in that action would become his property. It is said,
however, that a husband or wife cannot be a witness for or against
each other; but the true reason why the wife is incompetent is that
she is supposed to be under restraint. The objection, in this case,
cannot be stated, without being answered, "You reject the witness be-
cause he is the plaintiff's husband. If he is the plaintiff's husband she
cannot maintain the action." The husband was only called to prove
the copy of the register, which any person may prove, and the Court
will not, under such circumstances, put the plaintiff to the expense of
a new trial.
Lord Mansfield. There never has been an instance either in a
civil or criminal case where the husband or wife has been permit-
ted to be a witness for or against the other, except in case of neces-
sity, and that necessity is not a general necessity, as where no other
witness can be had, but a particular necessity, as where, for instance,
the wife would otherwise be exposed without remedy to personal in-
jury. I think the husband was not a competent witness.
WiEEES and Ashurst, Justices, of the same opinion.
Buller, Justice. If this case is to be determined by the abstract
general rule that husband and wife cannot be witnesses for or against
each other, the witness was certainly incompetent. But if that rule
be grounded on the principle of interest, then I think the husband was
a competent witness. How is the husband's interest affected here?
He is interested to disprove the marriage, because he is liable to main-
tain his wife. He is interested to disprove the marriage on this occa-
sion, because, if the wife should recover, all that she recovers will be
his. In proving the marriage, therefore, he is speaking against his
own interest. I cannot think that the verdict in this action would be
a bar to another action by the husband for the same cause. Suppose
that a wife gets possession of her husband's effects, and sells them,
shall she recover the price and her husband be barred? I think the
true ground in these cases is laid down in Abraham v. Bunn, B. R. 4
Burr, 2251, that the interest to exclude must be an interest in the
question. As to the general rule, I find it only in criminal cases, and
then where the marriage is admitted. Where the marriage is in ques-
tion, as here, every motive of interest is certainly the other way, be-
cause the husband may hurt himself, but cannot do himself any good.
However, if the rule is a general one, to be sure it must prevail.
Rule absolute.
Sec. 1) COMPETENCY 187
DAVIS v. DINWOODY.
(Court of King's Bench, 1792. 4 Dura. & E. 678.)
This was an action by the executrix of a surviving trustee under a
marriage settlement of J. Lewis in 1780, by which certain household
goods, mentioned in a schedule annexed to the deed, were settled to
the sole and separate use of Lewis's wife; and it was brought against
the defendant, sheriff of Monmouthshire, to recover back the value
of some of those articles, which had been seized and sold by him un-
der an execution against Lewis. At the trial at Monmouth before
Grose, J., J. Lewis was called as a witness to prove the identity of
the goods,: the defendant's counsel objected to his competency, and it
was said that he was interested; to which it was answered that he
came to speak against his interest ; for that if these goods, which had
been seized, were not his own and could not be taken to pay his debt,
he would be liable afterwards. Whereas, if they could be taken in
execution, his debt would be discharged. The learned judge admitted
the witness, but reserved the point.
Adair, Serjt., having obtained a rule to shew cause why the ver-
dict for the plaintiff should not be set aside, and a new trial had.
Lord Kenyon, C. J. (stopping Adair Serjt. and Caldecott, contra).
Independently of the question of interest, husbands and wives are
not admitted as witnesses either for or against each other : from their
being so nearly connected, they are supposed to have such a bias upon
their minds that they are not to be permitted to give evidence either for
or against each other.
BullER, J. It is now considered as a settled principle of law that
husbands and wives cannot in any case be admitted as witnesses either
for or against each other.
Rule absolute.
THE KING v. THE INHABITANTS OF BATHWICK.
(Court of King's Bench, 1S31. 2 Barn. & Adol. G39.)
Upon an appeal against an order of two justices, whereby Elizabeth,
the wife of William Joliffe Cook, was removed from the parish of
Bathwick, in the county of Somerset, to the parish of St. Pancras, in
the county of Middlesex, the sessions quashed the order, subject to the
opinion of this Court on the following case:
The respondents proved by the testimony of the said William Joliffe
Cook, his settlement in St. Pancras, and his marriage with the pauper
at Bath in 1829, and he stated her to be now his wife. The appellants
insisted that the marriage was void, the said Wm. Joliffe Cook having
been previously married in Dublin in 1826, to Mary Byrne; and, to
188 WITNESSES (Ch. 2
prove their case, they called the said Mary, to whose competency the
respondents objected. 62
Lord Tenterden, C. J., now delivered the judgment of the Court.
First, we are of opinion that the witness Mary, assuming her to be
the first and lawful wife of W. J. Cook, was a competent witness.
The question arose on the settlement of another woman, considered
to be the wife of Cook. Cook was examined, and proved his mar-
riage with this woman; but he was not asked, and did not say, that
he had not been previously married to the witness Mary. The wit-
ness, Mary, was afterwards called to prove her previous marriage with
this person. In deposing to this marriage, she did not contradict any-
thing that he had said. I notice this fact ; but we do not mean to say
that, if she had been called to contradict what he had sworn, she would
not, in a case like this, have been a competent witness to do so. It
is not necessary to decide that question at present; but it may well
be doubted whether the competency of a witness can depend upon the
marshalling of the evidence, or the particular stage of the cause at
which the witness may be called. In the present case, however, the
witness not having been called to contradict her husband, and her tes-
timony not being inconsistent with the fact to which he had deposed,
her incompetence, if it can be established, can be so only upon the
authority of the case of The King v. The Inhabitants of Cliviger, 2 T.
R. 263. The authority of that case was much shaken by the decision
of the case in The King v. The Inhabitants of All Saints, Worcester,
6 M. & S. 194, in which Lord Ellenborough said, "The objection rests
only on the language of The King v. Cliviger, that it may tend to crim-
inate him ; for it has not an immediate tendency, inasmuch as what she
stated could not be used in evidence against him. The passage from
Lord Hale (P. C. 301) has been pressed upon us, where it is said the
wife is not bound to give evidence against another in a case of theft,
if her husband be concerned, though her evidence be material against
another, and not directly against her husband. Admitting the author-
ity of that passage, it assumes that the husband was under the crim-
inal charge; that he was included in the simul cum aliis. But if we
were to determine, without regard to the form of proceeding whether
the husband was implicated in it or not, that the wife is an incompetent
witness as to every fact which may possibly have a tendency to crim-
inate her husband, or which, connected with other facts, may perhaps
go to form a link in a complicated chain of evidence against him, such
a decision, as I think, would go beyond all bounds ; and there is not
any authority to sustain it; unless, indeed, what has been laid down,
as it seems to me, somewhat too largely, in Rex v. Cliviger may be
supposed to do so."
The decision in the case of Rex v. The Inhabitants of Cliviger ap-
pears to have been founded on a supposed legal maxim of policy, viz.
«2 Statement condensed and part of opinion omitted.
Sec. L) COMPETENCY 189
that a wife cannot be a witness to give testimony in any degree to
criminate her husband. This will undoubtedly be true in the case of
direct charge and proceeding against him for any offence; but in such
a case she cannot be a witness to prove his innocence of the charge.
The present case is not a direct charge or proceeding against the
husband. It is true, that if the testimony given by both be considered
as true, the husband, Cook, has been guilty of the crime of bigamy ;
but nothing that was said by the wife in this case, nor any decision
of the court of session, founded upon her testimony, can hereafter be
received in evidence to support an indictment against him for that
crime. This is altogether res inter alios acta ; neither the husband
nor the wife has any interest in the decision of the question, and the
interest of the parish of Pancras required that the illegality of the
second marriage should be established, if it was in fact illegal. * * *
Order of sessions confirmed.
MILES v. UNITED STATES.
(Supreme Court of the United States, 18S0. 103 U. S. 304, 26 L. Ed. 481.)
Mr. Justice Woods 63 delivered the opinion of the court.
Section 5352 of the Revised Statutes of the United States declares :
"Every person having a husband or wife living, who marries an-
other, whether married or single, in a territory or other place over
which the United States has exclusive jurisdiction, is guilty of big-
amy, and shall be punished by a fine of not more than five hundred
dollars and by imprisonment for a term not more than five years."
The plaintiff in error was indicted under this section in the Third
District Court of Utah, at Salt Lake City. He was convicted. He
appealed to the Supreme Court of the Territory, where the judgment
of the District Court was affirmed.
That judgment is now brought to this court for review upon writ of
error. * * *
The plaintiff in error lastly claims that the court erred in allowing
Caroline Owens, the second wife, to give evidence against him touch-
ing his marriage with Emily Spencer, the alleged first wife ; and in
charging the jury that they might consider her testimony, if they
found from all the evidence in the case that she was a second and plu-
ral wife.
This assignment of error, we think, is well founded.
The law of Utah declares that a husband shall not be a witness for or
against his wife, nor a wife for or against her husband.
The marriage of the plaintiff in error with Caroline Owens was
charged in the indictment and admitted by. him upon the trial. The
•» Part of opinion omitted.
190 WITNESSES (Ch. 2
fact of his previous marriage with Emily Spencer was, therefore,
the only issue in the case, and that was contested to the end of the trial.
Until the fact of the marriage of Emily Spencer with the plaintiff in
error was established, Caroline Owens was prima facie his wife, and
she could not be used as a witness against him.
The ground upon which a second wife is admitted as a witness
against her husband, in a prosecution for bigamy, is that she is shown
not to be a real wife by proof of the fact that the accused had pre-
viously married another wife, who was still living and still his lawful
wife. It is only in cases where the first marriage is not controverted,
or has been duly established by other evidence, that the second wife
is allowed to testify, and she can then be a witness to the second mar-
riage, and not to the first.
The testimony of the second wife to prove the only controverted is-
sue in the case, namely, the first marriage, cannot be given to the jury
on the pretext that its purpose is to establish her competency. As her
competency depends on proof of the first marriage, and that is the issue
upon which the case turns, that issue must be established by other
witnesses before the second wife is competent for any purpose. Even
then she is not competent to prove the first marriage, for she cannot be
admitted to prove a fact to the jury which must be established before
she can testify at all.
Witnesses who are prima facie competent, but whose competency
is disputed, are allowed to give evidence on their voir dire to the
court upon some collateral issue, on which their competency depends,
but the testimony of a witness who is prima facie incompetent cannot
be given to the jury upon the very issue in the case, in order to establish
his competency, and at the same time prove the issue.
The authorities sustain these views.
Upon a prosecution for bigamy under the statute of 1 Jac, c. 11,
it was said by Lord Chief Justice Hale: "The first and true wife is
not allowed to be a witness against her husband, but I think it clear
the second may be admitted to prove the second marriage, for she is
not his wife, contrary to a sudden opinion delivered in July, 1664, at
the Assizes in Surrey, in Arthur Armstrong's case, for she is not so
much as his wife de facto." 1 Hale, P. C. 693.
So in East's Pleas of the Crown the rule is thus laid down: "The
first and true wife cannot be a witness against her husband, nor vice
versa ; but the second may be admitted to prove the second marriage,
for the first being proved she is not so much as wife de facto, but that
must be first established." 1 East, P. C. 469. The text of East is
supported by the following citation of authorities : 1 Hale, P. C. 693 ;
2 M. S. Sum. 331; Ann Cheney's Case, O. B. May, 1730, Sergt. Fos-
ter's Manuscript.
In Peake's Evidence (Norris) 248, it is said : "It is clearly settled
that a woman who was never legally the wife of a man, though she
Sec. 1) COMPETENCY 191
has been in fact married to him, may be a witness against him; as in
an indictment for bigamy, the first marriage being proved by other
witnesses, the second wife may be examined to prove the marriage
with her, for she is not de jure his wife."
Mr. Greenleaf , in his work on Evidence, volume 3, section 206, says :
"If the first marriage is clearly proved and not controverted, then the
person with whom the second marriage was had may be admitted as
a witness to prove the second marriage, as well as to other facts not
tending to defeat the first or legalize the second. There it is con-
ceived she would not be admitted to prove a fact showing that the first
marriage was' void, — such as relationship within the degrees, or the
like, — nor that the first wife was dead at the time of the second mar-
riage, nor ought she to be admitted at all if the first marriage is in
controversy."
The result of the authorities is that, as long as the fact of the first '
marriage is contested, the second wife cannot be admitted to prove it.
When the first marriage is duly established by other evidence, to the
satisfaction of the court, she may be admitted to prove the second
marriage, but not the first, and the jury should have been so instructed.
In this case the injunction of the law of Utah, that the wife should
not be a witness for or against her husband, was practically ignored
by the court. After some evidence tending to show the marriage of
plaintiff in error with Emily Spencer, but that fact being still in con-
troversy, Caroline Owens, the second wife, was put upon the stand and
allowed to testify to the first marriage, and the jury were, in effect,
told by the court that if, from her evidence and that of other wit-
nesses in the case, they were satisfied of the fact of the first marriage,
then they might consider the evidence of Caroline Owens to prove the
first marriage.
In other words, the evidence of a witness, prima facie incompetent,
and whose competency could only be shown by proof of a fact which
was the one contested issue in the case, was allowed to go to the jury
to prove that issue and at the same time to establish the competency
of the witness.
In this we think the court erred.
It is made clear by the record that polygamous marriages are so
celebrated in Utah as to make the proof of polygamy very difficult.
They are conducted in secret, and the persons by whom they are sol-
emnized are under such obligations of secrecy that it is almost im-
possible to extract the facts from them when placed upon the witness
stand. If both wives are excluded from testifying to the first marriage,
as we think they should be under the existing rules of evidence, testi-
mony sufficient to convict in a prosecution for polygamy in the ter-
ritory of Utah is hardly attainable. But this is not a consideration by
which we can be influenced. We must administer the law as we find
it. The remedy is with Congress, by enacting such a change in the law
192 WITNESSES (Ch. 2
of evidence in the territory of Utah as to make both wives witnesses
on indictments for bigamy.
For the error indicated the judgment of the Supreme Court of the
territory of Utah must be reversed and the cause remanded to that
court, to be by it remanded to the District Court, with directions to
Bet aside the verdict and judgment and award a venire facias de novo.
So ordered.
STAPLETON v. CROFTS.
(Court of Queen's Bench, 1S52. 18 Adol. & El. N. S. 367.)
Assumpsit for goods sold and delivered. Plea, Non assumpsit. Is-
clie thereon.
On the trial before Erie, J., at the sittings at Westminster in last
term, the defendant's wife was called as a witness for the defendant.
The evidence was objected to; but the learned Judge admitted it.
Verdict for the defendant.
In the ensuing term Huddleston obtained a rule nisi for a new trial,
on the ground of the improper reception of evidence.
Wightman, J. 64 It is contended that the objection to the admissi-
bility of the wife is removed by Stat. 14 & 15 Vict. c. 99. That Act,
however, in its terms applies only to "the parties" to any suit. Now
the wife of a party is not herself a party to the suit; and the terms
oi the Act do not embrace this case. But, independently of the terms
oi the Act, I think that the object appears to have been to complete
thg removal of objections on the ground of interest: and the objection
to admitting the wife of a party is not merely on the ground of her
identity in interest with her husband, but depends upon a broader
view of the relation of husband and wife, and on the interest which
the public have in the preservation of domestic peace and confidence
between married persons. 85
Cr.OMPTON, J. * * * It is said that the ground on which the
wife is rejected is the identity in interest between her and her husband,
the party to the record. If that were so, it would not follow that be-
cause the one was enabled to be a witness the other was. The ground
of objection, the interest, remains ; but the Legislature has by express
enactment said that it shall no longer be an objection to the admissi-
bility of the party: the objection to the admissibility of the wife is
left untouched. The Legislature might have taken away the objection
to both ; but they have not chosen to do so : and, there being no words
enacting that the wife shall be admissible, I think she continues in-
admissible.
«* Part of opinions of Crompton and Erie, JJ., omitted.
«8 Accord: Hopkins v. Grimshaw, 165 U. S. 342, 17 Sup. Ct. 401, 41 L. Ed.
739 11897).
Sec. 1) COMPETENCY 10.°.
Ert.K, J. I am of opinion that Stat. 13 & 14 Vict. c. 99, § 2, ren-
dering parties to a suit competent witnesses, has rendered the wives of
parties also competent.
The law relating to exclusion of evidence on account of interest
gave effect to the principle of uniting the interest of husband and wife.
If the husband was excluded on account of interest, so was also the
wife on account of her united interest; and, if the capacity of the
husband was restored, the wife became thereby also capable. Although
the wife had no direct interest during coverture in personal property,
she was taken' to have an indirect interest derivative from that of her
husband.
The party to a suit was both excluded and exempted on account of
his interest. For the same reason and from the same union of interest
the wife of a party was also exempted and excluded. If capacity was
restored to the parties by judgment by default, by nolle prosequi or
otherwise, the capacity of the wife was also restored thereby. It seems
to me to follow that, when the incapacity of parties is taken away by
statute, the incapacity of the wives of parties should also cease, and
the union of capacity or incapacity be still maintained.
This brings me to the question whether there was any other prin-
ciple for excluding the wife of a party besides this union of interest
and privilege between husband and wife. Upon the affirmative side,
authorities are cited for exclusion of the wife with a view to pre-
serving the peace of families ; they are collected in Taylor on Evi-
dence, vol. 2, p. 899, where it is said the admission of such testimony
would lead to dissension and unhappiness, and probably to perjury, and
because the confidence subsisting between husband and wife should be
sacredly cherished.
There is no doubt that the law most carefully protects the interests
connected with marriage, and established the union of interest above
mentioned for the purpose of domestic union, and excluded the testi-
mony of the wife, where the husband was excluded, on account of this
union ; and the expressions above cited, if confined to the exclusion of
the wife when the husband is excluded, have a definite meaning, capa-
ble of a practical application : but, if they are carried beyond this lim-
it, and are supposed to introduce tendency to domestic discord as a
ground of exclusion, they will be found to be contrary to known prin-
ciples of evidence, and to be incapable of being consistently applied.
For, if this ground of exclusion existed, it would apply to other wit-
nesses, as well as to parties, their domestic peace being equally impor-
tant. But it is clear with respect to witnesses, not parties, that they
cannot refuse to be examined on any ground derived from marriage,
and that husbands and wives may mutually contradict and discredit
each other upon matters full of family dissension, as freely as if the
marriage was null.
Even if.it could be supposed that the law regarded only the domestic
Hint.Ev.— 13
194 WITNESSES (Ch. 2
peace of parties, and protected their confidence, still the supposed
ground of exclusion is not consistently applied; for, if a husband is
assaulted or libelled, he may seek redress either by action or indict-
ment. In either form he is in substance the party. If he proceeds
by action, he and his wife were incompetent. If by indictment, both
are admissible either to corroborate, or contradict or discredit each
other. Now, if the principle of excluding the wives of parties was
protection of domestic peace and confidence, the wife ought to be
excluded equally in both cases : but she was excluded only in the
action, where, as the husband was also incompetent, it seems better
reasoning to attribute her exclusion to the uniform principle of union,
than to suppose a regard for domestic peace in the civil Court, to be
neglected in the criminal Court.
With respect to the protection of confidential communications be-
tween husband and wife, there seems good reason for such protection
at all times ; but no such principle has been brought into practice.
The decisions excluding the wives of parties have been accompanied
with general declarations in favour of such protection. But, as the
exclusion extended to all the testimony of the wives of parties, whether
it was confidential or not, and as no protection was given to conjugal
confidence in respect of the wives of witnesses, not parties, who are as
much within the reason of the rule, if it existed, as the first-mentioned
class, I think the rule has not yet been established. * * *
If the question may be considered with reference to the interest of
truth, it is clear the exclusion of essential information as a means for
finding truth is absurd. It is not doubted that wives often possess
essential information as to matters within the usual province of a wife,
and as to those conducted by her as agent for her husband, and as to
those which she has happened to witness.
If essential witnesses are excluded, there is the certain evil of de-
ciding without knowledge, and there is the probable evil of shaking
confidence in the law : these evils are certain ; and, if the notion of a
compensating good in the promotion of domestic happiness by render-
ing the wife powerless as a witness be analyzed, I believe it will be
found illusory. The idea that husbands generally would suborn their
wives to perjury, and persecute them if they spoke truth, is, to my
mind, unworthy of the time ; there is no reason for supposing that
wives, if admitted, would be worse treated in respect of their testimony
than in respect of any other part of their conduct, or be more prone to
untruth than any other class of witnesses: and, if, by reason of the
exclusion of the wife, the husband has to suffer an adverse judgment
contrary to truth, and the consequent loss, he would dissent with much
reason from the zealous declarations that such a mean for protecting
the peace of his family and the sanctity of his marriage was better
than administering the law according to truth.
These observations apply to the present case ; for the husband was
examined, and did not understand the matters in question, which had
Sec. 1) COMPETENCY I!). - .
been managed by his wife. If she had been excluded the verdict
would have been for the plaintiff, and the defendant would have been
made liable to a demand contrary to the truth. As these considerations
were in my mind before the judgment of the Exchequer in Barbat v.
Allen, 9 Exch. 609, and as they refer entirely to the effect of the
second section, which was not much discussed in that case, I trust I am
not wanting in deference if I say that my opinion is not changed. 06
Rule absolute.
MAVERICK v. EIGHTH AVE. R. CO.
(Court of Appeals of New York, 1867. 36 N. Y. 378.)
Action by Augustus Maverick and Ellen G., his wife, for damages
on account of personal injuries sustained by the wife while a pas-
senger on the defendant's car. The plaintiffs recovered a judgment
for $1215.00, which was affirmed by the General Term, and the de-
fendant appealed. 67
Scrugham, J. The testimony of the plaintiff, Augustus Maverick,
was properly received.
The question is, not whether he can be a witness for his wife, but
whether, being a party, he must be debarred from testifying in his
own behalf because his wife is also a party to the action. If the re-
sult of the action could only affect his wife or her separate property,
and he was merely a nominal plaintiff, having no pecuniary interest
whatever in the result, and he should be offered as a witness, the
question as to his inadmissibility on account of his marital relation to
the real plaintiff in interest would be presented. As having no inter-
est in the result of the action he could not be considered as a party
offering to testify in his own behalf or in any other character than as
a witness for or against his wife.
But in cases like this before us, the husband has a direct pecuniary
interest in the result.
The action was commenced and the judgment rendered before the
passage of the act of 1861 giving to the married woman the right to
maintain an action in her own name, and as if she were a feme sole, for
injuries to her person; and declaring that the moneys recovered on a
judgment in such action shall be her sole and separate property. As
the law stood at the time of the injury on account of which this action
was brought, and of the judgment, the husband was entitled to the
money which should be recovered in his life-time for injuries to the
ee The omitted parts of this opinion review Bentley v. Cooke, 3 Dour. -Il'2
(17S4); Davis v. Dinwoody, 4 D. & E. 678 (1792); Hawkesworth v. Showier
L2 M. & W. 45 (1S43); Brouschton v. Harper, 2 Ld. Raymond, 732 (1703);
Bex v. Cliviger, 2 D. & E. 263 (17SS); Rex v. All Saints, 6 M. & S. 194
(1817); Bex v. Bafhwick, 2 B. & Ad. 639 (1831); O'Connor v. Majoribanks,
4 M. & G. 435 (1S42).
67 Statement condensed and part of opinion omitted.
196 "WITNESSES (Ch. 2
person of his wife; and the necessity for making the wife a party to
such actions arose from the fact that the damages would survive to
the wife if the husband died before they were recovered. The in-
terest of the husband in the recovery was direct and immediate, while
that of the wife was uncertain and contingent. He had the right as
a real party in interest to be examined as a witness in his own be-
half, 08 and the circumstance that his wife might be benefited by his
testimony if he should die before recovery, is merely incidental and
would not justify the exclusion of his testimony. * * *
Judgment affirmed.
WOOD v. BROADLEY.
(Supreme Court of Missouri, 1SS2. 76 Mo. 23, 43 Am. Rep. 754.)
Henry, J. 69 The plaintiff, Elizabeth, is the daughter of Nicholas
D. Broadley, deceased, and her co-plaintiff is her husband. On the
25th day of February, 1875, said Nicholas by deed conveyed to his
wife, defendant Elizabeth, all the lands he owned, about 300 acres, f or
the expressed consideration of $2,000, which was never paid by her,
and which it was not the intention of said Nicholas that she should pay.
The grantee was his second wife, and the plaintiff, Elizabeth, is the
only living child of the first marriage. His second marriage occurred
in 1849, and his death in 1876. The defendant Virginia is the only
child of the last marriage. The object of this suit is to set aside said
deed, on the ground that Nicholas Broadley, when it was executed and
delivered, was old and infirm and had not mental capacity to make the
deed. * * *
[The finding was for the defendants and the plaintiffs appealed.]
The only remaining question which we deem it necessary to notice,
is that growing out of the exclusion of John Wood as a witness. We
do not think that the court erred therein. In Joice v. Branson, 73 Mo.
28, which was a suit by husband and wife for an assault and battery
committed on the wife, the court remarked that "the husband was
properly joined with the wife as co-plaintiff, and this because the stat-
ute requires it. The wife, however, was the substantial party to the
suit. * * * The husband was clearly incompetent as a witness, and
error was committed in permitting him to testify." In Paul v. Eeav-
itt, 53 Mo. 595, the suit was on the promissory note of the wife, to
enforce payment thereof out of her separate estate, and it was held
that being only a nominal party, the husband was not a competent
witness. So in Haerle v. Kreihn, 65 Mo. 202, it was held that the
es The statute at this time provided that no person should be excluded on
account of interest in the event, and that a party might be examined on his
own behalf or on behalf of any other party.
«» Part of opinion omitted.
Sec. 1) COMPETENCY 197
husband is not a competent witness, in a suit to which he and his wife
are parties, unless he has a substantial interest in the controversy, or
acted as her agent in the transaction which is the foundation of the
suit. Steffen v. Bauer, 70 Mo. 405, is unlike any of the cases above
cited. It was a suit to set aside a deed executed by husband and wife,
conveying land, the title of which was vested in the wife, on the ground
that it was not acknowledged in compliance with the law, and that
she signed under compulsion of her husband. The husband was of-
fered as a witness. The court excluded him, but this court held it
error, because ''he had an interest in the issue as well as his wife, since
in the event of her death he would be tenant by curtesy, and also had
an interest in his wife's land during coverture." It is contended by
appellants' counsel that the excluded witness in the case at bar, "had
a substantial interest, as a party litigating for a tenancy by the cur-
tesy initiate," relying upon Steffen v. Bauer, supra. But in the lat-
ter case the husband had a vested interest in his wife's land, before the
conveyance, and that interest continued if the deed was inoperative.
In the case at bar, the witness Wood had never had any interest in
the land in controversy. His wife was never seized of the land, and
could never be until a judgment in her favor in this cause. How can
it be said that he was tenant by the curtesy initiate of land of which
his wife was never seized? All concurring, the judgment is af-
firmed. 70
DEXTER v. BOOTH.
(Supreme Judicial Court of Massachusetts, 1861. 2 Allen. 559.)
Chapman, J. 71 This being an action against an executor to recover
the price of goods purchased by the testator's wife, and delivered to
her, some of which it is conceded were not necessaries, the plaintiff
was allowed to prove by the testimony of the widow that after the
purchase the husband ratified it in a private conversation with her.
The question is now raised, whether she was a competent witness to
prove such a conversation. It is admitted that, at common law, she
is excluded on considerations of policy from testifying to confidential
conversations between herself and her husband, and that the exclusion
remains unaffected by his death. The question is whether this rule
70 Where both husband and wife are parties, and each has a substantial
interest, both are competent under similar statutes. Bell v. Hannibal & St.
J. R. Co., S6 Mo. 599 (1SS5) ; Snell v. Westport, 9 Gray (Mass.) 321 (1857).
But a spouse not a party, though substantially interested, is excluded. Lay-
son v. Cooper, 174 Mo. 211, 73 S. W. 472, 97 Am. St. Rep. 545 (1903).
In Canolc v. Allen, 222 Pa. 156, 70 Atl. 1053 (1908), an action against
husband and wife for an alleged trespass of the wife, it was held that the
statute qualifying parties did not make the husband competent for the
plaintiff.
7 •> Part of opinion omitted.
198 WITNESSES (Ch. 2
extends to his ratification of a purchase made by her, which in its
nature does not seem to be confidential, though made in a private con-
versation. In England this question is settled. In Monroe v. Twistle-
ton, cited in Peake on Ev. c. 3, § 4, and Appendix, Lord Alvanley
stated the doctrine broadly, that a wife, who has been divorced by an
act of Parliament, cannot be called to prove any conversation which
happened between herself and her husband during the coverture.
In Aveson v. Kinnaird, 6 East, 194, Lord Ellenborough expressed a
doubt whether the exclusion was so broad, and said he considered Lord
Alvanley as having mentioned it as a general doctrine that trust and
confidence shall not be betrayed. He remarked that, as such, it is
sound doctrine. In Doker v. Hasler, Ry. & Mood. 198, Best, C. J.,
refused to allow the widow to testify to a conversation with her hus-
band — the question at issue being whether he had fraudulently taken
out an execution to protect the goods of a debtor. But in Beveridge v.
Minter, 1 C. & P. 364, Abbott, C. J., admitted the widow as a witness
to prove her husband's admission in respect to a debt sued for. Thus
far the authorities are contradictory. They are reviewed, and the doc-
trine is thoroughly discussed, in O'Connor v. Marjoribanks, 4 Man.
& Gr. 435. That was an action brought by an administrator to recover
goods which the wife had pledged to the defendant, and she was
offered by the defendant to prove that her husband had, in a private
conversation, authorized her to pledge them. Tindal, C. J., and Colt-
man and Maule, J J., gave separate opinions, each declaring that she
was excluded, and that considerations of policy protect all private con-
versations between husband and wife from disclosure, not only during
the coverture, but after it has ceased to exist. If the exclusion extends
to the giving of an authority to make a contract, it extends, of course,
to the ratification of a contract made by her.
In the same year that O'Connor v. Marjoribanks was decided (1842),
the Supreme Court of New York had occasion to consider the ques-
tion, and made a similar decision, overruling the case of Beveridge v.
Minter. Babcock v. Booth, 2 Hill (N. Y.) 181, 38 Am. Dec. 578. And
in Osterhout v. Shoemaker, 3 Hill (N. Y.) 513, Judge Bronson reaf-
firmed the decision. In Stein v. Bowman, 13 Pet. 209, 10 L. Ed. 129,
the Supreme Court of the United States discussed the question to some
extent, but did not decide the precise point raised here. In Dicker-
man v. Graves, 6 Cush. 308, 53 Am. Dec. 41, the doctrine of exclusion
is recognized by this court as resting on the broad ground that all pri-
vate conversations between husband and wife should be regarded as
sacred. But the case did not require a decision of the question. The
same doctrine is held in Delaware in Gray v. Cole, 5 Har. 418. The
offer was to prove by the widow an admission of her husband that he
occupied a house under an agreement to pay rent. The evidence was
excluded.
Our legislature has by statute extended the competency of witnesses
as far as it was deemed safe to do so ; and where it makes husbands
Sec. 1) COMPETENCY 199
and wives admissible, it provides that "they shall not be allowed to
testify as to private conversations with each other." This includes
conversations on subjects which are not confidential in their nature;
and adopts the doctrine of O'Connor v. Marjoribanks. 72 Gen. St. 1860^
c. 131, § 14. The present case does not belong to the particular class
provided for by section 16, namely, actions against the husband grow-
ing out of a wrong or injury done by him to the wife, or his neglect
to furnish her with the proper means of support. The section does not,
by its terms, include actions brought after his death against his exec-
utor or administrator; and probably the reason of the distinction is,
that in actions against himself he may protect his interests by his own
testimony.
As she should not have been allowed to testify to her private con-
versation with her husband, the verdict for the plaintiff must be set
aside. But as to any other facts, she was a competent witness. The
cross-examination of her, however, by which the defendant sought to
show that, at the time she made the purchases of the plaintiff, she
made extravagant purchases of jewelry and gold watches of other
persons, related to irrelevant matter. For if the fact were true, it
ought not to affect the plaintiff's claim. The judge rightly excluded
j£ * * *
72 In this case Tindal, C. J., gave the following reasons for excluding the
evidence of the widow: " * * * And it appears to me that, of the two,
Monroe v. Twisleton [Peake, Add. Ca. 219 (1802)] is the sounder; and that
the doctrine therein laid down is built upon the general rule of law, which,
subject to certain well-known exceptions, is this; that a wife never can be
admitted as a witness either for or against her husband; she cannot be
a witness for him, because her interest is precisely identical with his; nor
against him, upon grounds of public policy, because the admission of such
evidence would lead to dissension and unhappiness, and possibly to perjury.
There are cases to shew that this intimate relation subsisting between the
parties is not to be considered as dissolved by death, so as to let in the
evidence of either party as to transactions occurring during their joint
lives; but we are asked to confine the rule to cases where the communica-
tions between the husband and wife are of a confidential nature. But such a
limitation of the rule would very often be extremely difficult of application;
and would introduce a separate issue in each cause as to whether or not
the communications between husband and wife were to be considered of a
confidential character."
But see Lynn v. Hockaday, 162 Mo. Ill, 11 S. W. 8S5, 85 Am. St. Rep. 4S0
(1901), holding that, in a suit by one claiming to be an adopted child for a
distributive share of the estate, the widow was competent to prove the con-
tract of adoption.
200 WITNESSES (Ch. 2
STUHLMULLER v. EWING, Ex'x.
(Court of Error and Appeals, Mississippi, 1860. 39 Miss. 447.)
In the court below the widow of Ewing was admitted to testify, as
stated in the brief 73 of counsel for defendant in error. The plaintiff
objected, and his objection being overruled, he excepted. Verdict and
judgment for defendant, and plaintiff sued out this writ of error.
[Stuhlmuller sued the estate of Jesse H. Ewing on an account for
medical services rendered said Ewing in his last illness.
On the trial, the widow of the defendant was introduced as a wit-
ness for defendant, and stated that plaintiff and her deceased husband
had a conversation, in her presence, a few days before her husband's
death, in relation to said account, in which conversation the deceased
said to plaintiff that the contract between plaintiff and the deceased
was that Stuhlmuller was to be paid if he cured him (Ewing), and if he
did not cure him, he (plaintiff) was to receive nothing, and that plain-
tiff did not deny or dissent from that statement; also, that plaintiff
did not cure her said husband, but he died a few days after this con-
versation.
The counsel for plaintiff, in their brief, thus state the question:
"Can the wife, after her husband's death, be permitted to testify in be-
half of his estate, as to matters which transpired during the marriage
relation ?"
We think the question would be more properly stated thus: "Can
the widow be permitted to testify, on behalf of the estate of her de-
ceased husband, as to an admission made by the plaintiff, in a conver-
sation between plaintiff and her husband, in his lifetime, in her pres-
ence, touching the matter in controversy?"]
Harris, J., delivered the opinion of the court.
The only question for determination here is, whether the wife, after
the death of her husband, is competent to testify in favor of his es-
tate against a creditor as to conversations between her husband and
such creditor in relation to the contract upon which their dealings were
based.
By the common law the incompetency of husband and wife on this
subject is placed, first, on their identity of rights and interests, and
second, on principles of public policy.
In its spirit and extent the rule is analogous to that which excludes
confidential communications made by a client to his attorney, and
therefore at common law the wife, after the death of the husband, has
been held competent to prove facts not in their nature confidential, nor
coming to her knowledge from the husband by means of the marital
relation. See 1 Greenleaf, Ev. § 338; also Coffin v. Jones, 13 Pick.
73 The part of the statement inclosed in brackets has been taken from
the brief referred to.
Sec. 1) COMPETENCY 201
(Mass.) 445: Williams v. Baldwin, 7 Vt. 506; Cornell v. Vanarts-
dalen, 4 Pa. 364 ; Wells v. Tucker, 3 Bin. (Pa.) 366; Saunders v. Hen-
drix, 5 Ala. 224; McGuire v. Maloney, 1 B. Mon. (Ky.) 224; also the
numerous authorities collected and reviewed in the very able argument
of the counsel for defendant in error.
Our statute, Rev. Code, c. 61, arts. 190-193, having removed the in-
competency arising from interest and her testimony not falling within
the class of confidential communications, which, on principles of pub-
lic policy, are held sacred, there remains no legal obstacle to its ad-
missibility. In the case of Dunlap et al. v. Hearn, 37 Miss. 471, these
same principles are recognized.
Let the judgment be affirmed.
Appeal of ROBB.
(Supreme Court of Pennsylvania, 18S1. 98 Pa. 501.)
Appeal of John Robb and others, brothers and distributees, under
the intestate law, of David Robb, deceased, from the decree of the
said court dismissing their exceptions to the adjudication in the mat-
ter of the distribution of the balance appearing on the account of Jane
Robb, widow and administratrix of the said decedent.
Before the auditor, Mary Steen, a sister of the accountant, presented
a claim of $1,582 for wages as a domestic servant from October 1st,
1870, until the death of the decedent, September 10th, 1877. She al-
leged an express contract of hiring made by the deceased at the rate
of $3 per week, afterwards increased to $3.50 per week. The claim-
ant proved the performance of services during the time named, and
that they were worth at least $3.50 per week.
In order to prove the alleged express contract, the claimant called
as a witness Jane Robb, the widow and administratrix, who was ob-
jected to as incompetent to testify against the estate of her deceased
husband. Objection overruled. Exception. The witness testified that
at the time Mary Steen was employed by her husband, she was living
with a Mrs. Dean in Allegheny, and getting $3 a week wages ; that her
husband (the decedent) said that, as they required some help, they
might as well pay her as a stranger, and he would pay her whatever
she got from strangers; that Mary Steen accepted that arrangement,
and came to live with them ; thai, Mrs. Dean afterwards offered her
$3.50 a week, if she would go back to her, and that Mr. Robb said
she was worth all to him she was to any one else, and he agreed to
give her $3.50 a week. The appellants alleged that Miss Steen, being
a sister-in-law of the decedent, lived with him and was provided for
as a member of his family, without wages. They also interposed the
statute of limitations as a bar to that part of the claimant's demand,
which accrued more than six years prior to the death of the decedem.
202 witnesses (Ch. 2
The court, without referring to this objection, decreed to the claim-
ant the sum of $1,466.70, being the entire fund for distribution. John
Robb and others took this appeal, assigning for error the admission
of Jane Robb as a witness, and the entering of said decree.
Mr. Justice SterrETt 74 delivered in the opinion of the court.
It is contended that, on grounds of public policy, the widow of the
decedent was incompetent to testify to the contract on which appel-
lee's claim for wages is based; that the disqualification incident to
coverture continued after the death of her husband, and is not limited
to what occurred in their confidential intercourse, but extends to all
facts and transactions which came to her knowledge during their mar-
ital relations. While the principle, thus broadly stated, has sometimes
been recognized, the better and more generally received opinion is that
the disqualification is restricted to communications of a confidential
nature, and does not embrace ordinary business transactions and con-
versations in which others have participated. This appears to be the
principle recognized in our own cases. Cornell v. Vanartsdalen, 4 Pa.
364 ; Peiffer v. Lytle, 58 Pa. 386. The Orphans' Court, adhering to
this view of the law, permitted the widow to testify to conversations
between her husband, herself and the appellee, which resulted in a
contract of hiring, in pursuance of which the latter entered the service
of Mr. Robb in October, 1869, and continued therein until his death on
September 10th, 1877. These conversations, as shown by the testi-
mony, are not, in any proper sense of the term, confidential communi-
cations, and there was therefore no error in permitting the witness
to testify. * * *
Decree affirmed. 78
WARNER v. PRESS PUB. CO.
(Court of Appeals of New York, 1892. 132 N. T. 181, 30 N. E. 393.)
Parker, J. 76 The judgment under review awards to the plaintiff
damages against the defendant for publishing in the New York World
what purported to be a brief report of a judicial proceeding which con-
tained matter imputing unchastity to her. The defenses sought to be
interposed were (1) that the publication was privileged, because a fair
and true report of a proceeding in court ; (2) that it was true. * * *
74 Part of opinion omitted.
7 5 But see Mahlstedt v. Ideal Lighting Co., 271 111. 154, 110 N. E. 795,
Ann. Cas. 1917D, 209 (1915), excluding wife from testifying to any transac-
tions between a third person and her husband, though the latter was not a
party to the action.
The same extreme view appears in State v. Kodat, 158 Mo. 125, 59 S. W.
73, 51 L. R. A. 509, SI Am. St. Rep. 292 (1900), where a divorced woman
whs held incompetent to prove an assault by her former husband on a third
person.
76 Part of opinion omitted.
See. 1) COMPETENCY 203
Our attention is called to but one other exception. The libelous
article suggests improper relations between the plaintiif and one Smith,
evidenced by letters from Smith to her. She denied, not only the
charge, but all knowledge of the letters. The defendant asserted the
truth of the charges and insinuations contained in the article, and in
support of its contention called the husband of the plaintiff, to whom
the following questions were propounded : "Question. Had you any
dispute with Mrs. Warner at any time about Smith? Q. Had you
any conversation with Mrs. Warner, your wife, at any time, in rela-
tion to a man by the name of Frank Smith or F. Sidney Smith? '
Objection was made that the evidence was incompetent, under section
831 of the Code of Civil Procedure, which provides that "a husband
and wife shall not be compelled, or, without the consent of the other,
if living, allowed, to disclose a confidential communication made by
one to the other during marriage." The evidence offered could have
no purpose useful to the defendant, unless it tended to show that, dur-
ing such a conversation with her husband, she said or did, or omitted
to say or do, something from which it might be inferred that there ex-
isted an unlawful intimacy between her and Smith. A conversation
on such a subject between husband and wife seems to us to be clearly
within the protection of the statute.
The appellant calls our attention to the decision in Parkhurst v.
Berdell, 110 N. Y. 386-393, 18 N. E. 123, 6 Am. St. Rep. 384, in
which Judge Earl, in speaking for the court, said : "What are 'con-
fidential communications,' within the meaning of the section? Clear-
ly, not all communications made between husband and wife when
alone. * * * They are such communications as are expressly made
confidential, or such as are of a confidential nature or induced by the
marital relations." Clearly, the definition given does not exclude such
a conversation as the defendant desired to prove from the protection
of the statute. Its nature was not only confidential, but it was ap-
parently induced by the marital relation; for it cannot be conceived
that such a topic would have been the subject of discussion but for
the existence of such relation between the parties. A further test by
which to determine whether a communication is confidential is sug-
gested by the learned judge in characterizing the nature of the con-
versations sought to be excluded in that case. He said: "They were
ordinary conversations, relating to matters of business, which there is
no reason to suppose he would have been unwilling to hold in the
presence of any person." It cannot be supposed that both husband
and wife would have been willing to discuss such a subject in the
presence of other persons, or would have consented to a repetition of
the conversation by either party to it. Its nature, and the relation of
the parties, forbade the thought of its being told to others, and the
law stamped it with that seal of confidence which the parties in such
a situation would feel no occasion to exact. The wisdom of the stat-
ute was never more apparent than in this case, which exhibits a worth-
204 witnesses (Ch. 2
less husband in the attempted role of a destroyer of the good name
of the mother of his children, because she sought, in the name of the
law, to compel him to contribute towards her support, and that of his
children.
The judgment should be affirmed. All concur, except Haight, J.,
absent.
Judgment affirmed. 77
COMMONWEALTH v. GRIFFIN.
(Supreme Judicial Court of Massachusetts, 1872. 110 Mass. 181.)
Indictment for manslaughter. At the trial, before Rockwell, J., the
Commonwealth offered to prove a conversation as to the alleged homi-
cide between the defendant and his wife, while confined in jail, from
the testimony of two officers who concealed themselves in the jail for
the purpose of listening to the conversation, without the defendant
and his wife knowing that the witnesses or any other persons were in
hearing of them. The defendant objected to the admission of this
testimony, but the judge admitted it. The jury returned a verdict of
guilty, and the defendant alleged exceptions.
By the Court. There is no rule of law requiring that third per-
sons who hear a private conversation between husband and wife shall
be restrained from introducing it in their testimony.
Exceptions overruled. 78
V. Official Connection with the Tribunal
PRIOR v. POWERS.
(Court of King'.s Bench, 1665. 1 Keh. 811.)
In an action upon the case for misusing a horse, Orlaby prayed a
new trial, because the jurors in Bedfordshire being divided six and
six, they agreed by lot, putting two sixpences into a hat, that which
the bailiff took, that way the verdict should go, which was for the
plaintiff, and 2d. damages; but the Court denied it, because it ap-
peared only by pumping a juryman, who confessed all; but being
against himself, it was not much regarded. Also the Court cannot
grant new trial without punishing the jury, which cannot be by this
confession against themselves; and by Windham, This is as good a
way of decision as by the strongest body, which is the usual way, and
77 See section 828, New York Code, ante, p. 170, generally qualifying a
party and the spouse of a party to testify.
7 8 The rule is the same in other privileged relations. Com. v. Everson,
123 Ky. 330, 96 S. W. 460, 124 Am. St Rep. 305 (1906).
S eCi ]) COMPETENCY 205
is suitable in such cases to the law of God. Twisden doubted it would
be of ill example, and in Sir Philip Acton Case, on such verdict, on
fillip of counter, a new trial was granted, but here it was denied. 78
REX v. SIMMONS.
(Court of King's Bench, 1752. 1 Wils. 329.)
The Tew was indicted for putting into the pocket of one Ashley
three ducats, with a malicious intent to charge him with felony, and
was tried before Mr. Justice Foster at the last assizes for the county
of Essex, and found guilty generally as to all the counts in the indict-
ment.
The Court was moved for a new trial upon the affidavits of all the
twelve jurymen, "that they only intended to find the defendant guilty
of putting the ducats into Ashley's pocket, and did not intend or un-
derstand that they had found him guilty of putting the ducats into
his pocket with an intent to charge him with felony; and Dodson,
the foreman, swears that he declared at the Bar to the Court, when
they brought in their verdict, that they found the defendant guilty of
putting the ducats in Ashley's pocket, but without any intent."
Mr. Justice Foster reported that, after the evidence was gone
through and summed up, the jury departed from the Bar to consider
of their verdict, and gave a private verdict at his lodgings that the
defendant was guilty; the next morning they all appeared in Court
at the Bar, and being asked if they stood by their former verdict, they
answered they found the defendant guilty. That Mr. Justice Fos-
ter then told them that there were four counts in the indictment,
and that the evidence for the King was only applicable to the third,
which charged the defendant with maliciously putting three ducats into
Ashley's pocket with an intent to charge him with felony, and told
them that the intent was the principal thing to be considered by them,
and that if they believed the defendant did not put the ducats into
Ashley's pocket with an intent to charge him with felony, they must
7 1> Apparently the earlier practice was otherwise. Metcalfe v. Deane, Cro.
Eliz. 1S9 (1590) : "The jury were gone from the bar to confer of their verdict.
One of the witnesses that was before sworn on the part of Deano, was called
bv the. jurors; and he recited again his evidence to them, and after they
gave their verdict for Deane. Complaint being made to the Judge of the
assises of this misdemeanor, he examined the inquest, who confessed all the
matter, and that the evidence was the same in effect that was given before,
et non alia nee diversa. This matter being returned upon the postea, the
opinion of the Court was, that the verdict was not good, and a venire facias
de novo was awarded. Vide 35 Hen. 6, "Examination," 17, 11 Henry 4, pi.
17, and Brownlow cited a precedent, Leming v. Kempe, accordingly."
See, also, Watts v. Brains, Cro. Eliz. 77S (1600), ante. p. 3. The sug-
gestion in the principal case seems to connect the matter with the pnvi!
against self-incrimination which was then developing, as to which see section
3 of this chapter.
206 WITNESSES (Ch. 2
acquit him; whereupon the foreman at the Bar said, "We find him
guilty of putting the ducats into his pocket without any intent." But
by some mistake, or misapprehension of the Court, or the jury, or
of both, a general verdict was taken that the defendant was guilty.
After this report the jury by further affidavits swear that there
was a very great noise in Court; and that when the Judge directed
them to acquit the defendant, if they believed he did not put the
ducats into Ashley's pocket with an intent to charge him with felony,
they did not hear or understand him.
This question having been debated by five or six counsel of each
side, the Court gave their opinion for a new trial.
LEE, C. J. 80 There is no doubt but a new trial may be granted in a
criminal case; and the true reason for granting new trials is for the
obtaining of justice; but to grant them upon the affidavits of jury-
men only, must be admitted to be of dangerous consequence. It
appears to me from the report of my brother, and the affidavits of
Dodson the foreman, that this verdict was taken by mistake, for he
swears that he declared in court "that they did not find the defendant
guilty of any intent," and therefore this is not granting a new trial
upon any after-thought of the jury, but upon what the foreman Dod-
son declared at the Bar when they gave their verdict. I am very
clear in my opinion there ought to be a new trial, and the rather as
this is a criminal matter.
Wright, J. New trials are generally supposed to be more ancient
than appears in the books, for want of reporters when they first be-
gan to be granted: every case of this kind must depend upon its
particular circumstances ; the jury, every man of them, come here and
tell us that they were not understood, for that they declared at the
Bar they did not find the defendant guilty of any intent. My brother
reports that he told them if they did not believe the intent, they must
acquit him; the jury now swear, "they did not hear him;" there-
fore I am of opinion it is a verdict misentered, contrary to the dec-
laration of the foreman, not contradicted by any of the rest at the
time it was spoken at the Bar; and that it is most plainly no after-
thought, so that we may keep clear of the clanger of granting new
trials merely upon the affidavits of jurymen; I think this man has
been convicted contrary to the judgment of his peers ; that he has not
had judicium parium, and that we are bound to grant a new trial; and
this being a criminal case is more to be favoured as to a new trial,
than if it had been a civil case.
New trial granted. 81
so Opinions of Dennison and Foster, JJ., omitted.
m See Peters v. Fogarty, 55 N. J. Law, 386, 26 Atl. 855 (1S93), where the
affidavits of jurors were received to prove mistake in recording the verdict.
Sec. 1) COMPETENCY 2U7
DUNBAR v. PARKS.
(Supreme Court of Judicature of Vermont, 1S02. 2 Tyler, 217.)
The plaintiff brought trover for a horse. On the trial of the issue
to the jury, after the examination of all the witnesses on the stand, and
before argument, Mr. Sias, one of the jurors observed to the Court,
that he knew some matters which had relation to the cause; and re-
quested information whether it would be improper for him to com-
municate his knowledge to his brethren of the panel after they were
charged, and should retire to the jury-room.
Curia. As the juror had a doubt in his mind relative to his con-
duct, it is highly commendable in him to apply to the Court for ad-
vice. Let the witness's oath be administered to him.
He was accordingly sworn, and testified, standing in the jury-box,
to a material fact.
Upon his cross-examination,
John Mattocks, counsel for the plaintiff, put a question to the wit-
ness, the answer to which would indicate for which party as a juror
he would eventually decide.
Sed Per Curiam. This must not be suffered. Examine the wit-
ness solely as to facts, and such as came to his knowledge before he
was sworn as a juror. 82
MURDOCK v. SUMNER.
(Supreme Judicial Court of Massachusetts, 1839. 22 Pick. 156.)
Trover for divers goods attached by the defendant as sheriff of
Suffolk. A verdict had been found for the plaintiff, which the defend-
ant now moved to set aside, upon the affidavits of the jurors, that
in assessing the damages they proceeded under a mistake.
Shaw, C. J., delivered the opinion of the Court. This is an appli-
cation by the defendant, to set aside the verdict and grant a new trial,
on the affidavit of the jurors, that in the assessment of damages they
made a mistake. The mistake alleged was this, that in estimating the
value of the goods which were the subject of controversy, one witness
only was examined, who testified as to the quality, condition and
cost of the goods, and to his opinion that they were worth the cost ;
that the jury believed that they were bound by this opinion, where-
as if they had felt at liberty to exercise their own judgment, they would
have estimated them at a lower rate.
Affidavits of jurors are to be received with great caution. The rule
is inflexible, that they will not be received to show misconduct or ir-
82 it is generally thought that the judge trying a case ought not to be ad-
mitted as a witness. For an elaborate consideration of the matter, see
Morss v. Morss, 11 Barb. (N. Y.) 510 (1S51).
208 witnesses (Ch. 2
regularity on the part of the jury or any of them. And the general
rule is, that affidavits of jurors will not be received to prove any mis-
take of the evidence or misapprehension of the law, on the part of the
jury. Different jurors, according to their different degrees of intel-
ligence, of attention and habits of thought, may entertain different
views of the evidence, and of the instructions of the court in point of
law. But the verdict, in which they all concur, must be the best evi-
dence of their belief, both as to the fact and the law, and therefore
must be taken to be conclusive. 83 Jackson v. .Williamson, 2 T. R.
281; Owen v. Warburton, 4 Bos. & Pul. 326; Ex parte Caykendoll,
6 Cow. (N. Y.) 53 ; Napier v. Daniel, 3 Bingh. New Cases, 77. The.
rule is founded upon a consideration of the great danger, practically,
of listening to suggestions of misapprehension and mistake in the ju-
ries.
The Court are not prepared to say that this is a rule without excep-
tion ; there may be cases of manifest mistake in computation, or other
obvious error, where there are full means of detecting and correcting it,
where it would be proper to interfere.
But in the present case, the evidence having been heard de bene esse,
the Court are of opinion, that the verdict ought not to be set aside.
It was an estimate of the value of goods. The facts were stated by the
witness, and also his opinion. But the jurors had full opportunity to
exercise their own judgment on the facts, and form then- own opinion
of the value. If indeed any juror knew any fact bearing upon the
subject, such as the state and condition of the particular parcel of
goods, especially if it differed from the facts testified, he should have
stated it and testified to it in open court, that the court might judge of
the competency of the evidence, that the parties might fully examine
the witness, and that the counsel and court might have under their
consideration the whole of the evidence upon which the verdict is
formed. It is not suggested that the jury acted upon such facts. But
the jury may properly exercise their own judgment and apply their
own knowledge and experience in regard to the general subject of
inquiry. In the present case, the jury were not bound by the opinion
of the witness; they might have taken the facts testified by him, as
to the cost, quality and condition of the goods, and come to a different
opinion as to their value.
It is said that the jury understood the court to instruct them, that
they must go by the testimony. This, as a general proposition, was
true-and correct. If there was any danger that the jury would be mis-
8 3 it has been suggested that the rule here involved is much the same as
in certain contract cases where evidence of mistake is rejected because the
contracl is binding in spite of the mistake, and hence that the question is
as to the effect of a verdict rather than as to a prohibited means of showing
a mistake. But this is hardly satisfactory, in view of the practise of grant-
ing now trials where the court is satisfied that the jury have rristiken ei-
;her the law or the facts. Bright v. Eynon, 1 Burr. 390 (1757).
Sec. 1) COMPETENCY 20!>
led by the generality of this direction, the counsel should have re-
quested the judge to modify it and make it more precise, as applicable
to the evidence in the particular case, by informing the jury that they
were not bound by the opinions of the witness, but only by such facts
as upon the testimony they considered proved, the jury exercising
their own judgment upon the credit of the witness, and the weight of
the evidence. Besides, if the defendant considered the value of the
goods an important point, it was open to him to offer other and more
satisfactory evidence upon that point ; but he gave no evidence on the
subject, relying on that given by the plaintiff.
Motion dismissed.
STANDEWICK v. HOPKINS.
(Court of Queen's Bench, 1S44. 2 Dowl. & L. 502.)
This was an action which had been tried before the undersheriff of
Somersetshire, and a verdict found for the plaintiff. An application
had been made in the vacation to a Judge at Chambers to stay execu-
tion, on affidavits imputing misconduct and gross partiality on the part
of some of the jurors, which was granted. A rule nisi was obtained
in the present term for a new trial. It was drawn up on reading the
affidavits filed at Chambers.
J. W. Smith shewed cause, and proposed to read the affidavits of
three jurors, denying and explaining the misconduct alleged.
_ Prideaux, in support of the rule, objected, first, that no new affida-
vits having been used in obtaining the rule nisi, the plaintiff could not
use affidavits on shewing cause, Atkins v. Meredity, 4 Dowl. 658 ; and
secondly, that inasmuch as the affidavit of a juror could not be received
to impugn a verdict given, Straker v. Graham, 7 Dowl. 223 (see s. c, 4
M. & W. 721), it would be unfair to permit him to make an affidavit
to support it in any way.
Patteson, J. As a general rule, the affidavits of jurymen cannot
be received to support or impugn their verdict; but, in the present
instance, it is sought to use them in answer to affidavits imputing gross
misconduct to them ; and, I think, that every principle of natural jus-
tice demands that they should be heard to repel the imputations thus
cast on them. With respect to the other objection, it is true that the
affidavits which are used in support of the rule have been already read
at Chambers; but the present rule is drawn up on reading them, and
I therefore think the opposite party may use affidavits in shewing
cause.
The rule was afterwards made absolute, on the ground of the ver-
dict being against evidence.
Rule absolute.
Hint.Ev. — 14
210 WITNESSES (Ch. 2
McDONALD et al. v. PLESS.
(Supreme Court of the United States, 1915. 23S U. S. 264, 35 Sup. Ct. 783,
59 L. Ed. 1300.)
Mr. Justice Lamar 84 delivered the opinion of the court:
Pless & Winbourne, attorneys at law, brought suit in the superior
court of McDowell county, North Carolina, against McDonald to
recover $4,000 alleged to be due them for legal services. The case
was removed to the then circuit court of the United States for the
western district of North Carolina. There was a trial in which the
jury returned a verdict for $2,916 in favor of Pless & Winbourne.
The defendant McDonald moved to set aside the verdict on the ground
that when the jury retired the foreman suggested that each juror
should write down what he thought the plaintiffs were entitled to
recover, that the aggregate of these amounts should be divided by 12,
and that the quotient should be the verdict to be returned to the court.
To this suggestion all assented.
The motion further averred that when the figures were read out
it was found that one juror was in favor of giving plaintiffs nothing,
eight named sums ranging from $500 to $4,000, and three put down
$5,000. A part of the jury objected to using $5,000 as one of the
factors, inasmuch as the plaintiffs were only suing for $4,000. But
the three insisted that they had as much right to name a sum above
$4,000 as the others had to vote for an amount less than that set out
in the declaration. The various amounts were then added up and di-
vided by 12. But by reason of including the three items of $5,000,
the quotient was so much larger than had been expected that much
dissatisfaction with the result was expressed by some of the jury.
Others, however, insisted on standing by the bargain, and the protest-
ing jurors finally yielded to the argument that they were bound by
the previous agreement, and the quotient verdict was rendered ac-
cordingly.
The defendant further alleged in his motion that the jurors refused
to file an affidavit, but stated that they were willing to testify to the
facts alleged, provided the court thought it proper that they should do
so. At the hearing of the motion one of the jurors was sworn as a
witness, but the court refused to allow him to testify on the ground
that a juror was incompetent to impeach his own verdict. That ruling
was affirmed by the court of appeals. 124 C. C. A. 131, 206 Fed. 263.
The case was then brought here by writ of error.
On the argument here it was suggested that it was not necessary to
consider the question involved as an original proposition, since the
decision of the Federal court was in accordance with the rule in North
Carolina (Purcell v. Southern R. Co., 119 N. C. 739, 26 S. E. 161),
«* Tart of opinion omitted.
SeC. 1) COMPETENCY 2 1 I
and therefore binding under Rev. Stat. § 914, Comp. St. § 1537, which
requiresthat the practice, pleadings and forms and modes of procedure
in the Federal courts shall conform as near as may be to those ex-
isting in the state within which such Federal courts are held.
But though Rev. Stat. § 914, does not make the North Carolina de-
cisions controlling in the Federal court held in that state, we recognize
the same public policy which has been declared by that court, by those
in England, and most of the American states. For while by statute
in a few jurisdictions, and by decisions in others, the affidavit of a
juror may be received to prove the misconduct of himself and his fel-
lows, the weight of authority is that a juror cannot impeach his own
verdict. The rule is based upon controlling considerations of a pub-
lic policy which in these cases chooses the lesser of two evils. When
the affidavit of a juror, as to the misconduct of himself or the other
members of the jury, is made the basis of a motion for a new trial,
the court must choose between redressing the injury of the private
litigant and inflicting the public injury which would result if jurors
were permitted to testify as to what had happened in the jury room.
These two conflicting considerations are illustrated in the present
case. If the facts were as stated in the affidavit, the jury adopted an
arbitrary and unjust method in arriving at their verdict, and the de-
fendant ought to have had relief, if the facts could have been proved
by witnesses who were competent to testify in a proceeding to set
aside the verdict. But let it once be established that verdicts solemnly
made and publicly returned into court can be attacked and set aside
on the testimony of those who took part in their publication and all
verdicts could be, and many would be, followed by an inquiry in the
hope of discovering something which might invalidate the finding.
Jurors would be harassed and beset by the defeated party in an ef-
fort to secure from them evidence of facts which might establish mis-
conduct sufficient to set aside a verdict. If evidence thus secured
could be thus used, the result would be to make what was intended
to be a private deliberation, the constant subject of public investiga-
tion ; to the destruction of all frankness and freedom of discussion
and conference.
The rule on the subject has varied. Prior to 1785 a juror's testi-
mony in such cases was sometimes received, though always with great
caution. In that year Lord Mansfield, in Vaise v. Delaval, 1 T. R.
11, refused to receive the affidavit of jurors to prove that their
verdict had been made by lot. That ruling soon came to be almost
universally followed in England and in this country. Subsequently,
by statute in some states, and by decisions in a few others, the juror's
affidavit as to an overt act of misconduct, which was capable of be-
ing controverted by other jurors, was made admissible. And, of
course, the argument in favor of receiving such evidence is not only
very strong, but unanswerable — when looked at solely from the stand-
212 WITNESSES (Ch. 2
point of the private party who has been wronged by such misconduct.
The argument, however, has not been sufficiently convincing to in-
duce legislatures generally to repeal or to modify the rule. For, while
it may often exclude the only possible evidence of misconduct, a
change in the rule "would open the door to the most pernicious arts
and tampering with jurors." "The practice would be replete with
dangerous consequences." "It would lead to the grossest fraud and
abuse" and "no verdict would be safe." Cluggage v. Swan, 4 Bin. 155,
5 Am. Dec. 400; Straker v. Graham, 4 Mees. & W. 721, 7 Dowl. P.
C. 223, 1 Horn & H. 449, 8 L. J. Exch. N. S. 86.
There are only three instances in which the subject has been before
this court. In United States v. Reid, 12 How. 361, 366, 13 L. Ed.
1023, 1025, the question, though raised, was not decided because not
necessary for the determination of the case. In Mattox v. United
States, 146 U. S. 140, 148, 36 L. Ed. 917, 920, 13 Sup. Ct. 50, such
evidence was received to show that newspaper comments on a pend-
ing capital case had been read by' the jurors. Both of those decisions
recognize that it would not be safe to lay down any inflexible rule
because there might be instances in which such testimony of the
juror could not be excluded without "violating the plainest principles
of justice." This might occur in the gravest and most important cas-
es ; and without attempting to define the exceptions, or to determine
how far such evidence might be received by the judge on his own mo-
tion, it is safe to say that there is nothing in the nature of the present
case warranting a departure from what is unquestionably the general
rule, that the losing party cannot, in order to secure a new trial, use
the testimony of jurors to impeach their verdict. The principle was
recognized and applied in Hyde v. United States, 225 U. S. 347, 56 E.
Ed. 1114, 32 Sup. Ct. 793, Ann. Cas. 1914A, 614, which, notwith-
standing an alleged difference in the facts, is applicable here.
The suggestion that, if this be the true rule, theri jurors could not be
witnesses in criminal cases, or in contempt proceedings brought to
punish the wrongdoers, is without foundation. For the principle is
limited to those instances in which a private party seeks to use a juror
as a witness to impeach the verdict.
Judgment affirmed. 85
so That the rule does not exclude such proof of misconduct of a juror
when separated from the others, see Heffron v. Gallupe, 55 Me. 563 (1S6S).
For a very exhaustive review of the English and American cases, see
Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49 (1871).
Sec. 1) COMPETENCY 213
MURPHY v. STATE.
(Supreme Court of Wisconsin, 1905. 124 Wis. 635, 102 N. W. 1087.)
Error to review a conviction on a charge of bribery. The facts are
sufficiently set out in the opinion.
SierEcker, J. sc * * * Error is assigned upon the ruling of the
trial court to the effect that the proceedings before a grand jury are
privileged from being adduced before it as evidence by the defendant
for the purpose of showing his immunity under section 4078, Rev. St.
1898, as amended by chapter 85, p. 106, Laws 1901. The amended
section provides that no witness or party in the actions, proceedings,
or examinations therein specified '"'shall be excused from testifying on
the ground that his testimony may expose him to prosecution for any
crime, misdemeanor or forfeiture. But no person shall be prosecuted
or be subjected to any penalty or forfeiture for or on account of any
transaction, matter or thing concerning which he may testify, or pro-
duce evidence, documentary or otherwise, in such action, proceeding
or examination, except a prosecution for perjury committed in giving
such testimony." It is not questioned but that this statute gives the
defendant an important right, in that he may assert a statutory ex-
emption from punishment by way of defense in a criminal prosecution.
An act of Congress of like import was held valid legislation, and it
was decided that under its terms witnesses and parties could be com-
pelled to give testimony of a self-incriminating character, if the pro-
visions of the statute afforded immunity from prosecution for the
offense to which the testimonv related. Brown v. Walker, 161 U. S.
591, 16 Sup. Ct. 644, 40 L. Ed. 819.
The defendant interposed a plea in bar claiming immunity from pun-
ishment for the offense charged in the information upon the ground
that he appeared before the grand jury of Milwaukee county while
it was in session in the month of January, 1902, and gave testimony as
to the transaction, matter, and things alleged in the information. Upon
the trial of the special issue raised by this plea he attempted to com-
pel the production of the minutes of the proceedings of the grand jurv
for the purpose of offering them as original evidence to sustain the
allegations of his plea in bar, but the court ruled these minutes as well
as the testimony of members of the grand jury and the district at-
torney to be privileged under the rule of secrecy applied to proceedings
before a grand jury. The purpose of such secrecy is embodied in the
terms of their oath of office, and was designed to further an efficient
and effective administration of the criminal law. The authorities as
to whether testimony of the proceedings before a grand jury is com-
petent as original evidence upon a trial in court are not uniform. They
88 Part of opinion omitted.
214 WITNESSES (Ch. 2
unite in declaring that it can at no time be shown how the individual
jurors voted, or what was said by them during their deliberations, for
the reason that a disclosure thereof could not serve any purpose of
justice. In Commonwealth v. Mead, 12 Gray (Mass.) 167, 71 Am.
Dec. 741, the court, speaking on this subject, through Justice Bigelow
declares : "The reasons on which the sanction of secrecy which the
common law gives to proceedings before grand juries is founded are
said in the books to be threefold : One is that the utmost freedom of
disclosure of alleged crimes and offenses by prosecutors may be se-
cured. A second is that perjury and subornation of perjury may be
prevented by withholding the knowledge of facts testified to before the
grand jury, which, if known, it would be for the interest of the ac-
cused or their confederates to attempt to disprove by procuring false
testimony. The third is to conceal the fact that an indictment is found
against a party in order to avoid the danger that he may escape and
elude arrest upon it before the presentment is made."
All of the reasons practically disappear after the arrest of the
accused, when he is put upon his trial in court. The only one of these
grounds which could possibly, in a measure, subsist, is the danger of
subornation, and this is quite effectually disregarded in modern crimi-
nal law, which approves the right and the procedure by which the
accused, in fairness, is informed before the trial of the witnesses the
state relies upon to establish the case. An examination of the adjudi-
cations leads us to the conclusion that evidence by grand jurors of the
statements made before them by witnesses and parties is competent
upon trials in courts, and that the weight of authority sustains the
practice whenever the trial court deems it necessary for the ascertain-
ment of truth and in furtherance of justice. Of the leading authorities
on this subject we cite the following: State v. Benner, 64 Me. 267;
Izer v. State, 77 Md. 110, 26 Atl. 282; Commonwealth v. Mead, 12
Gray (Mass.) 167, 71 Am. Dec. 741; Commonwealth v. Hill, 11 Cush.
(Mass.) 137; People v. Naughton, 38 How. Prac. (N. Y.) 430; Wig-
more on Evidence, § 2360-3; and Rice on Evidence, vol. 4, p. 412.
It is urged that the rule of the common law as to the competency of
this class of evidence cannot control, because the subject is regulated
by statute, which excludes it except as therein made competent. The
statutory provisions on the subject are embodied in sections 2553-2555.
An examination of these sections shows that, when the court so or-
ders, grand jurors and officers attending on them are forbidden to make
disclosure of the fact that an indictment for felony has been found
until the arrest of the offender; that the jurors are not allowed to
state or testify in what manner they may have voted, or what opinion
was expressed by any of them, on any question before them; and that
the members of the jury may be required to testify as to whether the
testimony of a witness examined before them is consistent with or dif-
fers from his evidence before a court; and in prosecutions for per-
Sec. 1) COMPETENCY 215
jury of the person who appeared and testified before them they may
be required to disclose the testimony given before them. It will be
observed that the statutes 87 are declaratory in part of the rules which
had been established by the courts as to the competency of such evi-
dence in the administration of the criminal law, but they in no way
indicate that it was thereby intended to interfere with the established
practice, which was to the effect that it is proper to examine a grand
juror upon a trial in court as to what a witness testified to before
the grand jury, when not objectionable under the ordinary rules of
evidence, and when the ends of justice require it. The Supreme
Court of the state of Florida, in construing their statute on the sub-
ject, which is the same in terms and phraseology as the sections above
mentioned, held that they in no way abrogated the common-law rules
which prevailed when the statute was adopted. See Jenkins v. State,
35 Fla. 737, 18 South. 182, 48 Am. St. Rep. 267, and cases cited;
Hinshaw v. State, 147 Ind. 334, 47 N. E. 157. Upon these grounds we
must hold that the court erred, in holding that the evidence of grand
jurors, the district attorney, and the minutes of the grand jury's pro-
ceedings could not be received as original testimony, when it is ma-
terial to the issues in evidence upon this trial.
But an additional and very strong and cogent reason for holding
this evidence material and competent is found in applying the provi-
sions of chapter 85, p. 106, Laws 1901, quoted above. As stated, this
statute takes from the defendant a very important right, in that he
may be compelled to give testimony before the grand jury, and for
the deprivation of this constitutional privilege has granted him com-
plete immunity from prosecution or subjection to any penalty or for-
feiture for or on account of any transaction, matter, or thing concern-
ing which he testified or produced evidence. If the defendant can es-
tablish that he is entitled to such immunity, it will be a complete de-
fense to any further proceeding, and entitle him to a discharge from
further prosecution. In its legal aspect this right is as important to
the defendant as any legal defense to the accusation. No grounds are
suggested why he should not be awarded the usual and ordinary
methods recognized by the law for showing the facts necessary to
establish this defense, nor do any valid reasons suggest themselves to
us for holding that he should be deprived of this right given him in
the law. We are of the opinion that this evidence, if otherwise un-
objectionable, is competent as original evidence on the question in-
volved in the issue raised by defendant's plea in bar, and should have
been received, regardless of whether or not defendant testified as a
witness upon the trial. It is the policy of the state not to compel
8T a few courts have construed somewhat similar statutes as excluding
the testimony of grand jurors in all cases not thus excepted; e. g., Tindle v.
Nichols, 20 Mo. 326 (1S55).
'•^16 WITNESSES (Ch. 2
persons charged with crimes to testify in their own behalf. This privi-
lege should not be imperiled by denying them the right to employ any
legal means to establish their defenses. * * *
Judgment reversed. 88
SECTION 2.— REQUIRED WITNESSES 89
BARNES v. TROMPOWSKY.
(Court of King's Bench, 1797. 7 Durn. & E. 265.)
Debt on a charter-party of affreightment, not under seal. The
charter-party, being produced at the trial at York before Rooke, J.,
appeared to be dated the 26th September, 1795, and signed by the
name of M. Trompowsky, and attested by one Knieriem, whose seal as
a sworn broker was affixed to the instrument. A witness was called,
who was a merchant residing at Hull long conversant in the Russia
ss See elaborate opinion in State v. Benner, 64 Me. 267 (1874), admitting
testimony of grand juror to contra-diet a witness.
8 9 In Fox v. Reil, 3 Johns. 477 (N. Y. 180S), Chief Justice Kent gives the
following as the origin of the extremely technical rules applied to attested
documents: "In the early periods of the English law, the names of the wit-
nesses were always registered in the body of the deed. They were selected
from the best men in the neighborhood ; and if the deed was denied, they
formed a necessary part of the jury, who was to try its validity. This rule
continued, until the Statute 12 Edw. II, c. 2, allowed the inquest to be tak-
en, without any of the witnesses being associated with the jury; but they
were still to be summoned as usual. 'It is agreed,' says the statute, 'that
when a deed, release, acquittance, or. other writing, is denied in the king's
court, wherein the witnesses be named, process shall be awarded to cause
such witnesses' to appear, as before hath been used.' The practice of join-
ing the witnesses to the jury continued throughout the reign of Edward III,
and Fortescue (de Laud. Leg. Ang. c. 32.) mentions it as existing in the reign
of Henry VI. It gradually fell into disuse, and ceased about the time of
Henry VIII, and until that period, the process to bi*ing in the witnesses,
upon the denial of a deed, continued, of which numerous instances are col-
lected from the Year Books, by Brooke, (tit. Testmoignes.) When, there-
fore, the ancient law required the witnesses to a deed to form part of the
jury, and continued down to the time of Henry VIII, to compel them to come
in, by similar process as that awarded for the jury, (see Reg. Brev., jud.
60, and Thesaurus Brevium, 88,) it cannot be supposed that the notion of
proving a deed, by the confession of the party, in pais, was ever thought of
or admitted. Under Henry VI it was held, that if a deed be acknowledged
and enrolled of record, the party was estopped to plead non est factum; but
the case assigns a very sufficient reason for this, because, as was observed,
upon every deed enrolled, the party shall be examined, and the deed shall
be read to him by the court, and it is not to be supposed that the party has
been deceived. Year Book, Hil. 9 Hen. VI, pi. 8.
"In the case of Smartle v. Williams, 1 Salk. 280 (1695), the court of King's
Bench, after debate, went, perhaps, a little further, and held that the ac-
knowledgment of a deed by the party in a court of record, or before a mas-
ter in chancery in the country, was good evidence of the execution of a deed,
and such an acknowledgment estopped the party from relying on the plea of
non est factum. * * * "
Sec. 2) REQUIRED WITNESSES 217
trade and in habits of correspondence with the defendant, and who
proved the signature to the charter-party to be his handwriting; he
also proved that eight years ago a sworn broker named Knieriem was
living and resident at Riga, and he had not heard of his death. An-
other witness proved that he knew Knieriem acting there as a broker in
1790; but neither of these witnesses knew his handwriting. After
the plaintiff had gone through his whole case, it was objected, amongst
other things, that the charter-party was not duly proved: but the
learned judge thought there was sufficient evidence to go to the jury;
and the plaintiff recovered a verdict. A rule was obtained on a former
day in this term calling on the plaintiff to shew cause why the verdict
should not be set aside and a new trial had on the ground of this as
well as several other objections, which were stated: but the Court de-
sired the plaintiff's counsel on shewing cause to confine themselves to
this objection.
Law, Chambre, and Raine, shewed cause against the rule; con-
tending that under all the circumstances this was the best evidence
within the power of the plaintiff to produce. In Swire v. Bell, 5 Durn.
& E. 371, where the party could not examine the subscribing witness to
a bond by reason of his interest in the cause, proof of the handwriting
of the obligor was held sufficient. By parity of reasoning the same
mode of proof ought to be received here ; for the witness lives at Riga,
and cannot be compelled to attend by any process; he might equally
refuse to be examined if a commission were sent out; and that mode
of examination has fallen into disuse from the heavy expence and
difficulty attending it. Besides, proof of the handwriting of the sub-
scribing witness is only a medium of proof of the handwriting of the
contracting party ; and as this instrument is not under the seal of the
contracting party himself, but has its force from his signature only,
this proof is sufficient. In the proof too of foreign instruments more
latitude has been allowed than in general cases between subject and sub-
ject. Even where the subscribing witness, though a subject, had been
absent in the East Indies for five years, Lord Mansfield held in Coghlan
v. Williamson, Dougl. 93, that proof of the obligor's handwriting and
of his admission of the debt was sufficient. And upon a motion for
entering a nonsuit the Court concurred with his Lordship, the point
being given up by the defendant's counsel, upon tile- ground of his ad-
mission of the debt.
Gibbs, Hey wood, Serjeant, and Holroyd, contra, were stopped by the
Court.
Lord Kenyon, C. J. We ought not to suffer this point to be called
in question ; it is too clear for discussion. I do not say that proof of
the handwriting of the contracting party is not under any circum-
stances sufficient where there is a subscribing witness ; as if no intel-
ligence can be obtained respecting the subscribing witness after reason-
able inquiry has been made; but here the witness is a known person
218 WITNESSES (Ch. 2
residing 90 at Riga. Generally speaking, every instrument, whether
under seal or not, the execution of which is witnessed, must be proved
in the same manner, regularly by the witness himself if living; if dead
by proving his handwriting ; if residing abroad by sending out a com-
mission to examine him, or at least by proving his handwriting, which
last indeed is a relaxation of the old rule, and admitted only of late
years. I remember the case alluded to which was tried at Guildhall,
where the subscribing witness being domiciled in a foreign country
Lord Mansfield permitted evidence to be given of his handwriting.
That opinion was received with approbation at the time on account of
the necessity and convenience of the case; and I myself have adopted
it in cases which have been tried before me. The same medium of
proof has also been admitted where the subscribing witness has been
sought for and could not be found, so as to furnish a presumption that
he was dead. But the rule has never been relaxed further than these
instances; and there is neither necessity nor convenience in doing so.
The case of Swire v. Bell 91 went on the ground that the subscribing
witness was interested at the time of the execution and also at the time
of trial.
Ashurst, J., of the same opinion.
Grose, J. Where there is a subscribing witness the parties thereby
agree that the proof of their handwriting shall be made through that
medium. 92
Lawrence,- J. Even an acknowledgment by the obligor himself has
been held not to be sufficient evidence on the plea of non est factum.
Abbot v. Plumbe, Dougl. 215.
Rule absolute. 93
so In Prince v. Blackburn, 2 East, 250 (1S02), it was held proper to prove
the signature of an attesting witness who had gone abroad on a business
trip.
»i In Swire v. Bell, 5 D. & E. 371 (1793), the witness was incompetent
both at the time of attesting and at the trial, and it was held that his) sig-
nature could not be proved, distinguishing the case of a witness who sub-
sequently becomes incompetent to testify. In case of subsequent incompe-
tency the signature of the witness may be proved as in case of death. God-
frey v. Norris, 1 Strange, 34 (1717) ; Jones v. Mason, 2 Strange, 833 (1729).
92 The rule requiring the examination of the attesting witness has been
applied to noncontractual instruments, such as an attested notice to termi-
nate a tenancy. Doe v. Durnford, 2 M. & S. 62 (1813). The rule has also
been applied in actions between strangers to the instrument, where it was
sought to prove the execution by one of the parties to it. The King v. Har-
ringworth, 4 M. & S. 350 (1815); Brigham v. Palmer, 3 Allen (Mass.) 450
(1862).
93 In a few states the courts have limited the rule to sealed instruments,
or at least refused to apply it to attested promissory notes. Hall v. Phelps,
2 Johns. (N. Y.) 451 (1807).
There are statutes in several of the states confining the rule to instru-
ments required to be attested; e. g., Kurd's Rev. St. 111. 1913, c. 51, § 51.
Sec. 2) REQUIRED WITNESSES 219
CALL v. DUNNING.
(Court of King's Bench, 1803. 4 East, 53.)
In debt on bond, at the trial before Lord Ellenborough, C. J., at the
Sittings after last term, the only proof offered of the execution of the
bond was the answer of the defendant in Chancery to a bill filed for a
discovery, Whether this were his bond? in which answer it was admit-
ted to be so. But the bond, when produced, having the name "Rich-
ard Wilson" subscribed thereto as the witness attesting the execution,
and no evidence being given of his hand-writing, or that any inquiry
had been made who the person was, or where he was to be found, or
that any application had been made to any person of that name to
know whether he were the subscribing witness; (though it was sug-
gested on the part of the plaintiff that no knowledge of the witness
could be obtained by him;) the Lord Chief Justice thought that no
sufficient foundation had been laid to let in the secondary evidence
offered, and therefore nonsuited the plaintiff.
Gibbs moved to set aside the nonsuit.
Lord Ellenborough, C. J. This case falls within the common
rule. The answer of the defendant in Chancery, admitting the execu-
tion of his bond, to which there was a subscribing witness, cannot be
more than secondary evidence: and I did not reject it as not being
admissible in any event, but because the plaintiff had not laid a foun-
dation for letting it in by shewing that he had made inquiry after the
subscribing witness Richard Wilson, and had not been able with due
diligence to procure any account of him. No one person of that name
(of whom several were suggested in court within reach of inquiry)
had been applied to for the purpose of knowing whether he were the
subscribing witness.
LE Blanc, J. The argument of the plaintiff's counsel goes upon the
supposition that the obligor himself must know every circumstance
attending the execution of the bond : but that does not follow. A fact
may be known to the subscribing witness not within the knowledge or
recollection of the obligor, and he is entitled to avail himself of all
the knowledge of the subscribing witness relative to the transaction. 94
Per Curiam. Rule refused. 95
04 Reporter's Note. — Vide Abbot v. Plurabe, Doug. 216; Johnson v. Mason,
1 Esp. 89. Manners q. c. v. Postan, 4 Esp. 239; Cunliffe v. Sefton, 'J L83,
187, 8; Phipps v. Parker, 1 Campb. 412. The rule which requires the sub-
scribing witness to a deed, or other written instrument, to be produced, or his
»s See note 95 on page 220.
220 witnesses (Ch. 2
absence accounted for, In order to prove the execution, has very few excep-
tions. The following are all that occur to me:
Where the deed has been acknowledged and enrolled of record. Year Book,
Ilil. 9, Hen. VI, pi. 8.
Where it has been acknowledged before a master in chancery in the coun-
try. Smartle d. Newport v. Williams, 1 Salk. 280.
Where the party has acknowledged the execution by an indorsement un-
der his hand and seal. Dillon v. Crawley, 12 Mod. 500.
Where the instrument comes out of the hands of the opposite party after
notice to produce it. The King v. The Inhabitants of Middlezoy, 2 Term
Rep. 41 ; Thompson v. Jones and Passel v. Godsall, cited by counsel ; Bowles
et al. v. Langworthy, 5 Term Rep. 366.
Where the party, pending a suit on the instrument, agrees to admit the
execution. Laing v. Raine, 2 Bos. & Pull. 85.
In one case it was held by the Supreme Court of New York, that promis-
sory notes were not within the rule, and that the confession of the party was
sufficient without producing the subscribing witness. Hall v. Phelps, 2 Johns.
(N. Y.) 451. But the same court fully recognized the rule as applicable to
sealed instruments in a case that came before them soon afterwards. Fox
et al. v. Reil et al., 3 Johns. (N. Y.) 477.
Where the general rule was not controverted it has still been a question
in many cases, What shall be sufficient to account for the absence of the
subscribing witness so as to let in secondary evidence? It has been decid-
ed that his absence is sufficiently accounted for under the following cir-
cumstances:
Where he is dead, or presumed to be so. Anon. 12 Mod. 607; Adam v.
Kerr, 1 Bos. & Pull. 360 ; Webb v. St. Lawrence, 3 Bro. Pari. Ca. 640 (Toml.
edit.) ; Banks v. Farquarson, 1 Dick. 167 ; Barns v. Trompowsky, 7 Term Rep.
265 ; Mott v. Doughty, 1 Johns. Cas (N. Y.) 230 ; Hopkins v. De Graffenreid,
2 Bay, 1S7.
Where he becomes party to the suit in consequence of being made the exec-
utor or administrator of one of the parties to the instrument Case cited by
Hooper, Serjnt, in Goss v. Tracy, 1 P. Wms. 289; Godfrey v. Norris, 1 Stra.
34; Cunliffe v. Sefton, 2 East, 183.
Where he was interested in the instrument at the time of its execution,
and continues so at the time of the trial. Swire v. Bell, 5 Term Rep. 371.
Where he has become blind. Wood v. Drury, 1 Ld. Raym. 734.
Where he has been convicted of an infamous crime. Jones v. Mason, 2
Stra. 833.
Where he resides beyond sea. Barns v. Trompowsky, 7 Term Rep. 266;
Wallis v. Delancey, cited in notis ; Anon., 12 Mod. 607 ; Webb v. St. Law-
rence, 3 Bro. Pari. Ca. 640.
Where he is out of the jurisdiction of the Court, so as not to be amenable
to its process. Prince v. Blackburn, 2 East, 250; Holmes v. Pontin, Peakes'
Ca. 99 ; Banks v. Farquarson, 1 Dick. 167 ; Cooper v. Marsden, 1 Esp. 2 ; Ward
v. Wells, 1 Taun. 461 ; Sluby v. Champlin, 4 Johns. (N. Y.) 461 ; Hopkins v.
De Graffenreid, 2 Bay (S. C.) 187.
95 in Bowles v. Langworthy, 5 D. & E. 366 (1793), the defendant's exam-
ination before the commissioners of bankrupt was received apparently as an
admission, without calling the attesting witness; but in that case the de-
fendant produced the instrument and apparently claimed under it. See Orr
v. Morice, post, p. 223.
In chancery the admission in the defendant's answer giving discovery was
sufficient, but this was thought to be analogous to an admission by the
pleadings at law, per Pollock, C. B., in Whyman v. Garth, 8 Exch. 803 (1S53).
in this case the defendant was called to prove his own signature. The
court held, however, that the statute making him a competent witness did
not dispense with the necessity of calling the attesting witness. But sea
Bowling v. Hax, 55 Mo. 446 (1874).
SeC. 2) EEQUIKED WITNESSES 221
GORDON et al. v. SECRETAN.
(Court of King's Bench, 1807. 8 East, 548.)
In an action upon a policy of insurance on goods on board the
ship Tom, at and from the Southern Whale Fishery until her arrival
at London, the declaration contained an averment that the plaintiffs
were interested in the subject-matter of insurance ; and the defendant
meaning to dispute that at the trial, gave them notice to produce cer-
tain articles of agreement between them (who were also owners of the
ship) and the captain, whereby, as he contended, it would appear that
the captain (who was not a plaintiff) was interested in one third of the
neat proceeds of the cargo : and if so, the defendant, having paid more
than enough into court to cover the shares of these plaintiffs, would
have been entitled to a verdict, unless the plaintiffs were entitled to
recover the remainder of the sum insured as trustees for the captain ;
which would depend upon the construction of the articles. In pur-
suance of the notice the instrument was accordingly produced at the
trial by the plaintiffs, when there appeared to be two subscribing wit-
nesses to it ; and therefore the plaintiffs insisted that the defendant
could not give it in evidence without calling one of those witnesses to
prove it. And Lord Ellenborough being of that opinion, the plain-
tiffs recovered.
The Attorney General moved at the beginning of the term for a new
trial, 1st, on the ground that the instrument coming out of the hands
of the plaintiffs, parties thereto, upon notice to produce it, was not nec-
essary to be proved by one of the subscribing witnesses, according to
the rule laid down in Rex v. Middlezoy, 2 Term Rep. 41. 96 * * *
Lord Ellenborough, C. J., said, that the case of The King v.
Middlezoy, which was much questioned at the time, had been since
overruled. And that it was not enough to give notice to the opposite
party in a cause to produce an instrument in his hands, in order to
dispense with any further proof of it by the party giving the notice ;
but that the production of it at the trial, in pursuance of such notice,
did not supersede the necessity of proving it by one of the subscribing
witnesses, if any, as in ordinary cases.
And Lawrence 1 , J., said, that this had been so ruled by Lord Ken-
yon in a subsequent case, respecting a will, which the adverse party, in
whose hands it was, had notice to produce, and did produce at the
trial, when it appeared that there were subscribing witnesses to it ;
and Lord Kenyon held that the party calling for it was bound to call
one of the subscribing witnesses to prove the instrument.
Lord Ellenborough, C. J., added, that the case of a will shewed
strongly the necessity of adhering to the strict rule of proof, and the
enormity of the general proposition, that the production of an instru-
»6 Statement condensed and part of opinion omitted.
222 witnesses (Ch. 2
ment by an adverse party, in consequence of a notice, dispensed with
the general rule of proving its execution by a subscribing witness : for
if a party were fixed with the possession of an instrument affecting his
property, however questionable its execution might be, and even though
he had impounded it because it was forged, or had been obtained by
fraud : that, according to the argument, was to relieve the party at-
tempting to avail himself of it from calling the subscribing witness.
The Attorney General, after suggesting the difficulty which par-
ties would be laid under in these cases, from their ignorance of the
names of the subscribing witnesses to an instrument till produced at
the trial, then offered an affidavit on the part of the defendant, of his
being surprized and not prepared at the trial for want of knowing who
the subscribing witnesses were; relying on the case of The King v<
Middlezoy, that the notice to produce the articles dispensed with fur-
ther proof of them when produced.
Lord EllEnborough, C. J., said, that there could be no objection
to his taking a rule to shew cause on the ground of surprize. * * *
Rule absolute on ground of surprise.
COOKE v. TANSWELL.
(Court of Common Pleas, 1818. 8 Taunt. 450.)
Covenant on an indenture of apprenticeship, with an averment in the
declaration that the indenture was in the possession of the defendant,
and, therefore, could not be produced by the plaintiff. Plea, non est
factum. At the trial before BurroUgh, J., at the sittings for West-
minster, after the last term, it was proved that the deed was in the
hands of the defendant, to whom notice, specifying the name of Pain,
as that of the subscribing witness, had been given to produce it. The
plaintiff, on the defendant's refusal to produce the deed, gave in evi-
dence what was supposed to be a copy of it, on which the name ox.
the subscribing witness was apparent ; but, on its turning out that thb
paper was not a copy, the plaintiff abandoned it and gave parol evi-
dence of the contents of the original without calling the subscribing
witness who was in court. For the defendant, it was contended that
the plaintiff had failed in his proof, and that the attesting witness
should have been called. But Burrough, J., was of opinion, that the
proof was sufficient without the evidence of the subscribing witness.
Lens, Serjt, on a former day, had obtained a rule nisi to set aside
this verdict, and enter a nonsuit on the ground urged at the trial.
Gibbs, C. J. I do not think the knowledge of the name of the sub-
scribing witness makes any difference in the case. I take the ques-
tion to be, whether when one party calls for a deed of the other, who
does not produce it, and the party calling for the deed is consequently
driven to give parol evidence of its contents, it is necessary for him
Sec. 2) REQUIRED WITNESSES 223
to call the subscribing witness. In cases where non est factum is not
pleaded, as in ejectment, when a party so situated gives evidence of the
contents of a deed, I never yet heard it contended that it was nec-
essary to call the subscribing witness. Here, the deed was in the
hands of the defendant ; if he wished to throw on the plaintiff the
burthen of calling the subscribing witness, he might have produced the
deed. It was alleged on the record, that the deed was in the defend-
ant's hands, that allegation was admitted, and the defendant being
called on to produce it, and refusing to do so, it was not necessary
that the plaintiff should call the subscribing witness to the deed before
he gave evidence of the contents.
Park, J., of the same opinion.
Burrougii, J. Not only was it averred on the record that the deed
was in the defendant's hands, but that fact was proved, and also that
notice had been given to him to produce it, which he refused to do;
and I thought at the trial, as I think now, that there was no necessity
for calling the subscribing witness.
Rule discharged.
ORR v. MORICE et at
(Court of Common Pleas, 1S21. 3 Brod. & B. 139.)
Assumpsit for use and occupation. The defendants were the as-
signees of a bankrupt, and at the trial before Dallas, C. J., (Middlesex
sittings after Trinity term last,) it was proved, that one of them had
continued for some time after the bankruptcy to occupy a counting-
house, which, up to his bankruptcy, had been occupied by the bank-
rupt.
The defendants, under a notice from the plaintiff, produced the deed
of assignment, and the plaintiff, omitting to prove its execution by the
attesting witness, it was contended, that the deed was not admissible
in evidence.
Dallas, C. J., held, that the assignment so produced was admissi-
ble, as coming out of the possession of the defendants, who had taken
a beneficial interest under it. A verdict having been found for the
plaintiff,
Hullock, Serjt., on a former day, obtained a rule nisi to set aside this
verdict, and enter a nonsuit, on the ground, that the plaintiff ought to
have proved the deed by calling the attesting witness.
Dallas, C. J. 97 The cases on this subject, have been contradictory;
the earlier cases laying down a rule, which, on first consideration I
should have thought correct, namely, that when an adverse party, who
has a deed in his custody, produces it on notice, it shall be deemed to
be duly executed, and the party calling for it, shall not be required to
»7 Opinions of Park, Burrougn, and Richardson, J J., omitted.
-24 WITNESSES (Ch.
prove the execution by calling an attesting witness. That rule indeed
proceeded on the ground, (which subsequent practice has in some de-
gree removed,) that the party calling for the deed could not be sup-
posed to know the name of the attesting witness. Then came the case
of Gordon v. Secretan [8 East, 548], by which that doctrine was ex-
pressly overruled, and wherein the party calling for the deed, was held
' bound to prove its execution, as in every other case. After that, fol-
lowed the case of Pearce v. Hooper [3 Taunt. 60], in which it was
decided, that where an adverse party produces, upon notice to do so,
an instrument under which he claims a beneficial estate, the party call-
ing for the deed shall not be compelled to prove its execution by the
testimony of the attesting witness : and in another case at nisi prius,
in which the circumstances were of the same nature, I remember
having ruled to the same effect. The question then will be, whether,
in the present instance, the assignees did claim 98 a beneficial interest
under the instrument which they were called on to produce? As to
that, it appeared that the bankrupt had claimed the premises in ques-
tion, that his assignees had entered, and had occupied them for some
■ time. This brings the case within the rule laid down in Pearce v.
Hooper, and I think it was not incumbent on the plaintiff to call the
attesting witness of the deed produced by the defendants under these
circumstances.
Rule discharged.
CUNLIFF et al. v. SEFTON et al.
(Court of King's Bench, 1801. 2 East, 1S3.)
Upon a rule nisi for setting aside a nonsuit in this cause, which
stood over from last Michaelmas term, Chambre, J., before whom it
was tried at the last Summer assizes at Lancaster, reported that it
was an action on a bond given by the defendants to the intestate, dated
31st of February, 1795, for £600., to which non est factum was plead-
ed. That the bond when produced appeared to be witnessed by Rich-
ard Bate, and by Alice Houghton, one of the plaintiffs : and to prove
the execution of it the following evidence was offered, viz. That the
plaintiffs had taken out a subpoena for Richard Bate, one of the sub-
scribing witnesses; and that for the purpose of serving him with it,
diligent inquiry was made at the place where the obligors and the
obligee lived, without having been able to obtain any intelligence of
such a person ; who he was, or where he lived, or any other circum-
stance relating to him. That the defendants had acknowledged the
debt, and made a calculation of what was due for principal and in-
terest, which the plaintiffs offered to prove by letters of correspond-
as Extrinsic evidence may be used to prove that the adverse party does
claim under the deed. Wilkins v. Wilkins, 4 Adol. & El. SU (1S35).
Sec. 2) REQUIRED WITNESSES 225
ence : and as Alice Houghton, the other subscribing witness, by rea-
son of her interest as administratix and plaintiff, could not be pro-
duced as a witness, it was offered to perfect the proof by evidence
of her hand-writing. The learned Judge, upon the authority of Ab-
bot v. Plumbe, Dougl. 216, thought himself precluded from receiving
the evidence of acknowledgment as proof of the execution of the bond.
He also thought that the inquiry after Richard Bate was too slight a
foundation for directing the jury to find for the plaintiff upon the
rest of the evidence, without producing Bate as a witness, or proving
his hand-writing. Not having, however, any doubt of the justice of
the demand, he wished to have reserved the point for the determina-
tion of this Court upon a case : but there being no person to consent
on the part of the defendants, the learned Judge directed a nonsuit,
with liberty tojhe plaintiffs to apply to this Court to set it aside.
Grose, J. (The general principle of evidence is clear, that the best /Qisjt
evidence which" the nature of the case will admit of must be givenTJ L ^ K ^* n
Then apply that to the present case : here is a bond executed, nobody
knows where, and attested by a witness, of whom nothing appears to
lead to a discovery who he was, or where he lived. But it was known
where the parties to the bond lived ; and there it is stated that diligent
inquiry was made after the subscribing witness, and no account could
be obtained of him. The bond itself is dated in February, 1795, and
the obligee is since dead. I do not see what the plaintiffs could have J]
done more than they have. [Then if they have used due diligence (jLA^-
without effect, that will let them in to secondary evidence]* It is plain /J' (J
from the report that the learned Judge was not satisfiedwith the first lA-^
impression of his mind, that the evidence offered ought not to have (
been received; because he reserved the point, and referred it to our
opinion : and upon more mature consideration we think that the evi-
dence offered was sufficient to entitle the plaintiffs to recover. I form
this opinion with reference to what is daily passing in the world. The
frequency of written instruments in modern times has made person?
less careful than they used to be in the selection of witnesses to their
attestation. It has occurred to me to know that persons unknown to
the parties, such as waiters at a tavern, have been called in to at-
test instruments of the most important kind, even wills ; where the
parties had no previous knowledge of them, nor even were apprized
that they bore the names by which they attested the execution. The
difficulty, therefore, which has occurred in this case can be no matter
of surprize. On the whole, I think the nonsuit ought to be set aside ;
and possibly the plaintiffs may, in the mean time, be able to procure
some intelligence of the subscribing witness.
Lawrence, J. It is now admitted as a general rule, that proof of
the acknowledgment of a defendant is not sufficient in an action on a
bond without calling the subscribing witness. The only question now
is on that part of the report of the learned Judge, which states that he
Hint.Ev. — 15
226 witnesses (Ch. 2
was not satisfied that sufficient inquiry had been made after Richard
Bate, one of the subscribing witnesses, in order to let in the proof of
the hand-writing of the other subscribing witness, who has since be-
come one of the parties interested. Now no dotibt that a subscribing
witness's hand-writing may be proved, if diligent inquiry have been
made after him, and he cannot be found. Then the question is, Wheth-
er it be not sufficient to inquire after a witness whom nobody knows
at the place where the obligors and obligee lived? It is stated, that
diligent inquiry was made after the witness there, but without success :
then where else were the parties to inquire? It does seem that they
have done everything that could be expected of them ; and if so, I
think they ought to have been let into the secondary evidence offered.
LE Blanc, J. Inquiry was made for the subscribing witness at the
only place where it was probable to find or hear of him. The only
other step the parties could have taken was to advertise for him in the
public papers: and unless the Court should hold that necessary to be
done in all these cases, I think the plaintiffs have made all the inquiry
which could reasonably be required of them.
Rule absolute. 98
DOE ex dem. OLDHAM et ux. v. WOLLEY.
(Court of King's Bench, 1828. 8 Barn. & C. 22.)
Ejectment for lands in Worcestershire. Plea, the general issue. At
the trial before Vaughan, B., at the last Spring assizes for Worcester,
it appeared that the lessors of the plaintiff claimed as devisees of Fran-
ces Wolley, who was said to be heir of T. Wolley, who died in 1800,
seised of the estate in question, having devised it to his widow for life,
remainder to his right heirs. This will was dated the 21st February,
1798, more than thirty years before the trial, but one of the subscribing
witnesses was proved to be still living; and it was insisted for the
defendant that he must be called to prove the execution of the will, as
the testator had died within thirty years. The learned Judge thought
that the thirty years must be computed from the date of the will, and
overruled the objection. 1
Lord TentErden, C. J. As to the first point I am of opinion that
the rule of computing the thirty years from the date of a deed is
equally applicable to a will. The principle upon which deeds after that
period are received in evidence, without proof of the execution, is, that
the witnesses may be presumed to have died. But it was urged that
when the existence of an attesting witness is proved, he must be called.
»» All of the attesting witnesses must be shown to be unavailable In or-
der to admit secondary evidence. Forbes v. Wales, 1 Wm. Blackstone, 532
(1764) ; Gelott v. Goodspeed, 8 Cush. (Mass.) 411 (1S51).
i Statement condensed.
SCC. 2) REQUIRED WITNESSES 227
That, however, would only be a trap for a nonsuit. The party produc-
ing the will might know nothing of the existence of the witness until
the time of the trial. The defendant might have ascertained it, and
kept his knowledge a secret up to that time, in order to defeat the
claimant. As to the other point, it must at all events be admitted, that
the death of the grandfather's brothers might be presumed, and then,
in order to raise the objection, two affirmatives must be presumed ;
viz. that they did marry, and did leave issue. I think that would be a
very unreasonable, and that the direction of the learned Judge was
right.
Rule refused.
Mcpherson v. rathbone et ai.
(Supreme Court of New York, 1S33. 11 Wend. 96.)
This was an action of assumpsit, tried at the Albany circuit in Sep-
tember, 1831, before the Hon. James Vanderpoel, one of the circuit
judges.
The suit was against Lyman Rathbone, Moses Rathbone and Sam-
uel Rathbone ; the declaration was for goods sold and delivered, and
also contained the money counts. The plaintiff claimed to recover
for goods sold in September, 1825, and July, 1826. To prove the
partnership of the defendants, he offered in evidence a memorandum
of dissolution of partnership, signed and sealed by Samuel Rathbone
alone, bearing date 15th August, 1826, in which it was stated that a
partnership had existed between the defendants, and was on that day
dissolved by mutual consent. This evidence was objected to by the
defendant, but the objection was overruled, and the defendants ex-
cepted. The plaintiff next introduced articles of partnership entered
into by the defendants, bearing date in May, 1823, by which they agreed
to enter into copartnership as merchants, under the name and firm
of "L. Rathbone & Co.," the partnership to continue as long as the
parties should mutually agree to its continuance. The articles pur-
ported to be signed and sealed by the' three defendants, and to have
been executed in the presence of H. A. Rathbone. The plaintiff called
Samuel Rathbone, junior, to prove the signature of H. A. Rathbone,
the subscribing witness. He testified that he was the son of the de-
fendant, Samuel Rathbone, and brother of Henry A. Rathbone, who
was at the time of the trial a resident of the state of Tennessee ; that
he did not know the signature of H. A. Rathbone, subscribed to the
articles as a witness, to be the hand writing of his brother Henry A.
Rathbone ; that he did not think it resembled the present hand writing
of his brother, and that he did not know his hand writing at the date
of the articles. Upon this evidence the plaintiff offered to prove the
hand writing of the defendant Samuel Rathbone subscribed to the
228 witnesses (Ch. 2
articles; the defendant objected to such proof, insisting that either
the subscribing witness must be produced or his hand writing proved.
The judge overruled the objection, and the defendants excepted;
whereupon the signatures of Samuel Rathbone and of Lyman Rath-
bone were proved, and the articles were read in evidence as their ad-
mission of the partnership. It was further proved that at the time of
the existence of the partnership, the other defendant, Moses Rathbone,
was always reputed to be a member of the firm. A witness for the
plaintiff then testified that in March, 1827, he presented an account
of the items of the plaintiff's demand to Lyman Rathbone, who ad-
mitted the same to be correct, and gave his note for the balance stated
to be due, signing the same in the partnership name, to wit, "L. Rath-
bone & Co." The note was produced and deposited with the clerk of
the circuit, and the jury, under the charge of the judge, found a verdict
for the plaintiff for the amount of his demand, with interest. The de-
fendants having tendered and obtained a bill of exceptions to be signed,
move for a new trial.
Savage, C. J. It was undoubtedly competent to have proved the
partnership of all these defendants by general reputation, but probably
no such reputation could be shown as to Samuel Rathbone. The prin-
cipal question is, whether the articles of copartnership were suffi-
ciently proved, as respects Samuel Rathbone.
Where a sealed instrument is attested by a subscribing witness,
the testimony of such witness is the best evidence of its execution. If
the subscribing witness is not produced, his absence must be sufficiently
accounted for: as that he is dead, or cannot be found, after diligent
inquiry; or that he resides out of the state, and is beyond the reach
of the process of the court, &c. 2 Stark. Ev. 337 ; 1 Phil. Ev. 419.
In such case, proof of the hand writing of the subscribing witness
proves the execution of the instrument. 1 Phil. Ev. 420; Jackson v.
Chapin, 5 Cow. 485 ; Jackson v. Cody, 9 Cow. 148 ; 2 Stark. Ev. 341,
2 n. 1. Such is the rule in this state, but it is different in some of the
other states; and some of the English cases say, that in addition to
the proof of the hand writing of the witness, proof should also be given
of the hand writing of the party. 2 Stark. Ev. 342; 1 Bos. and Pull.
300. If the hand writing of the subscribing witness cannot be proved,
after proper diligence has been used for that purpose, the party must
then resort to the same testimony as if there had been no subscribing
witness ; the hand writing of the party executing the instrument may
be proved by any one acquainted with it. In this case, the execution
of the instrument was sufficiently proved, if, under! the circum-
stances, enough was done to prove the hand writing of the absent
subscribing witness. It must be conceded, I think, that the plaintiff had
procured a witness who would be most likely to know the hand writ-
ing of the absent subscribing witness. If his own brother could not
prove his hand writing, the court was justified in assuming that it
Sec. 2) REQUIRED WITNESSES 229
could not be proved, and in receiving evidence of the hand writing of
the party.
Assuming the partnership of the defendants to have been proved,
as I think it was, then there can be no doubt of the plaintiff's right
to recover. The indebtedness accrued during the existence of the part-
nership. And though one partner cannot bind his copartner by a note,
after the dissolution of the partnership, yet he may liquidate a previous
account. By doing so, he does not create a debt ; that was previously
in existence. I am therefore of opinion that a new trial must be de-
nied. 2
WRIGHT v. DOE dem. TATHAM.
(Court of Exchequer Chamber, 1S34. 1 Adol. & E. 3.)
The defendant in error declared in ejectment against the plaintiff in
error in the Court of King's Bench. At the trial before Gurney, B.,
at the Lancaster Spring assizes, 1833, the jury found a verdict for
the plaintiff below, and the counsel for the defendant below tendered
a bill of exceptions.
By the bill of exceptions it appeared, that the plaintiff below claimed
as heir at law of John Marsden deceased, who was admitted to have
died seized, leaving the plaintiff below his heir at law ; but Wright
claimed under a will of Marsden.
[It appeared from the bill of exceptions that Wright, the defendant
below, in order to prove the will, introduced the testimony, taken at a
former trial, of one of the attesting witnesses named Bleasdale, who
had since died. On this proof the defendant offered the will, but it
was excluded because the other attesting witness had not been called.
The verdict was for the plaintiff.] 3
Tindal, C. J., [after holding that the former testimony of the de-
ceased witness was properly received.] 4 If, therefore, such evidence be,
as we think it is, producible, the only question that remains is, what is
the character and degree of that evidence, and for what purpose it
can be produced : and it seems to us, that such evidence is direct and
immediate evidence in the cause, and is producible in evidence in the
cause for the same purpose and to the same extent as if the witness
2 In a number of states a rule has been developed that, where the instru-
ment appears to have been executed out of the jurisdiction and the attest-
ing witnesses are nonresidents, no further showing is necessary to admit
other procf of execution. Newson v. Luster, 13 111. 175 (1851) ; Valentine v.
Piper, 22 Pick. (Mass.) 85, 33 Am. Dec 715 (1839); Woodman v. Segar, 25
He. 90 (1845).
In the case of an instrument required to be attested, as a will, obviously
proof of the handwriting of the testator alone would not establish the fact
of attestation. — Ed.
s This part of the statement has been condensed.
* See Doncaster v. Day, 3 Taunt. 262 (1810), post, p. 44^
230 WITNESSES . (Ch. 2
himself had been alive and sworn, and had given the same evidence in
the witness box in the present cause.
For unless the evidence is carried to this extent, it is impossible to
define any line or limit to which it shall be held to extend.
It is objected on the part of the plaintiff below, first, that the ad-
mitting of this evidence is in contravention of the rule of law, by
which the best evidence is required to be given in every case ; for it
is contended that the viva voce evidence of Proctor, the surviving wit-
ness, is better evidence than the examination of Bleasdale, who is dead.
But we think this argument assumes the very point in dispute. If
the evidence which had been offered of the execution of the will, had
consisted simply in proving the hand-writing of Bleasdale, one of the at-
testing witnesses, which would have been the legitimate mode of prov-
ing the attestation by him, after his death, it might indeed have been ob-
jected with some ground of reason, that such evidence could not be
the best, whilst another of the attesting witnesses was still alive, and
within the jurisdiction of the court. For, in that case, the proof of
the hand-writing only would have done no more than raise the pre-
sumption, that he witnessed all that the law requires for the due exe-
cution of a will; whereas the surviving witness would have been able
to give direct proof, whether all the requisites of the statutes had been
observed or not. Such direct testimony, therefore, might fairly be
considered as evidence of a better and higher nature than mere pre-
sumption arising from the proof of the witness's hand-writing. Stabi-
tur prsesumptioni, donee probetur in contrarium. The effect, however,
of Bleasdale's examination is not merely to raise a presumption ; it is
evidence as direct to the point in issue, and as precise in its nature and
quality, as that of Proctor when called in person : it is direct evidence
of the complete execution of the will, by the statement upon oath of
the observance of every requisite made necessary by the statute of
frauds. If Proctor had been examined in the present action by the
plaintiff below, there can be no doubt but the examination of Bleas-
dale on the last trial might have been put in, to contradict him. But
on what principle could such contradiction have been admissible, unless
the evidence obtained by means of the examination was of as high a
character and degree as that of the viva voce examination of the sur-
viving witness? If the parol examination of Proctor was the better
evidence, as contended for, how could it be opposed by the inferior
evidence of Bleasdale's examination?
It was objected, secondly, that not to allow this testimony, that is,
to dispense with the necessity of calling the surviving attesting wit-
ness, is, in effect, to destroy the security intended to be given by the
statute of frauds. For it is said that, as that statute requires the at-
testation of three witnesses, so, to allow the will to be proved upon a
trial at law without calling an attesting witness, so long as one of the
three remains in life, is to give up the full benefit of having three
witnesses to the will. It may be observed, however, that the statute
Sec. 2) REQUIRED WITNESSES 231
of frauds did not look primarily to the mode of proving the will when
contested, but to the security of the testator at the time of the execu-
tion of the will ; the statute intending that three witnesses should be
in the nature of guards or securities, to protect him in the execution
of his will against force, or fraud, or undue influence. The proof of
the will by the three witnesses, supposing it should afterwards come
in contest, is only an incidental and secondary benefit, derived from
that mode of attestation. Indeed the principle of this objection, if
carried to its full extent, would require the will to be proved in every
case by the three witnesses. It is well settled, however, that, in an
action at law, it is sufficient to call one only of the subscribing witness-
es, if he can speak to the observance of all that is required by the stat-
ute; and the objection itself is obviously open to the same answer
which has been given to the first, viz. that the evidence resulting from
the written examination of the deceased witness, in the former suit
between the same parties, is of as high a nature, and as direct and im-
mediate, as the viva voce examination of one of the witnesses remain-
ing alive, and actually examined in the cause.
Upon the whole, we think that, after the proof given in this case of
the examination of Bleasdale and his subsequent death, the will and
codicil were receivable in evidence without further proof, and conse-
quently that a venire de novo must be awarded.
Venire de novo awarded. 5
b Courts of chancery appear to have required the examination of all the
attesting witnesses in will eases. Townsend v. Ives, 1 Wilson, 216 (174S):
"This was a bill preferred by the legatees under the will of John Townsend,
in order to have his real estate sold for payment of their legacies, which are
charged thereupon, against the heir at law of the testator who is an infant,
and to have the will established. There were three witnesses to the will
all now living, but only one has been examined, who proved the execution of
it, and the attestation of the other two witnesses. But his Honour refused
to establish the will without the examination of all the witnesses, for it is
a rule that all the witnesses if living must be examined to prove the will: be-
sides the heir at Jaw is, in this case, an infant, who, if of age, has a right
to cross-examine all the witnesses; and as no admission of this sort can be
received for an infant, this court must protect his right, and therefore must
insist upon all those requisites which he would have a right to insist upon if
he were of age, and capable of making a defense for himself."
And so in Bootle v. Blundell, 19 Yes. Jr. 494 (1815). A number of the states
have construed their wills act as adopting the chancery rule for proceedings
to probate wills in solemn form.
At law, where none of the attesting witnesses are available, proof of the
signature of one of the attesting witnesses is sufficient ; no other proof of ex-
ecution is necessary. Adam v. Kerr, 1 B. & P. 360 (1798) ; Stebbins v. Dun-
can, 108 U. S. 32, 2 Sup. Ct. 313, 27 L. Ed. 641 (18S2).
232 witnesses (Ch. 2
SECTION 3.— PRIVILEGE
I. Self Incrimination •
SCROOP'S TRIAL.
(Old Bailey Sessions, 1660. 5 How. St. Trials, 947.)
In the course of the trial of the Regicides, the prosecution sought
to prove that the defendant Scroop acted as a member of the court and
took part in the proceedings which resulted in the conviction and sen-
tence of Charles I. 7
Mr. Clark called.
Counsel : Mr. Clark, have you heard the question, did you ever see
the prisoner at the bar in that which they called the High Court of
Justice?
Clark: I do remember in the year 1649, I saw the prisoner sitting
in that which they called the High Court of Justice upon the trial of
the king.
Scroop: My lords, you may desist in examining witnesses touch-
ing my sitting.
Court : Do you acknowledge you did sit in that which they called
the High Court of Justice?
Scroop: Yes, I see it proved, and I see a gentleman here in my
eyes that I know very well. I will not deny it.
Court: Did you sit upon the Sentence day, that is the evidence,
which was the 27th day of January ? You are not bound 8 to answer
me, but if you will not, we must prove it. Do you confess that?
Scroop: I do not confess that I stood up as assenting to the Sen-
tence.
Mr. Clark called.
Counsel : Mr. Clark, what say you to that?
Clark: I did not take particular notice of him that day, that he
stood up; but the whole Court stood up, to my apprehension, but I
took notice that he was there then present.
« For the history of this privilege, see article by Prof. Wigmore, 5 Harv.
Law Rev. 71.
* Statement condensed.
« That this was a new doctrine at this period, see 3 Wigmore, § 2250.
Sec. 3) privilege 233
REX v. WORSENHAM et al.
' (Court of King's Bench, 1701. 1 Ld. Raym. 705.)
An information was preferred against the defendants being cus-
tom-house officers, for forging of a bond supposed to be given by a
merchant to the King for his customs. And motion was made on be-
half of the prosecutor, to have the custom-house books in which the
entries were made, &c. brought into court, to convict the defendants.
But the motion was denied, because the said books are a private con-
cern, in which the prosecutor has no interest; and therefore it would
be in effect, to compel the defendants, to produce evidence against
themselves. And the court never makes such rules, but only of rec-
ords, or deeds of a publick nature. 9
THE KING v. INHABITANTS OF WOBURN.
(Court of King's Bench, 1808. 10 East, 395.)
Upon an appeal by the churchwardens and overseers of the poor
of the parish of St. Alban in the county of Hertford against an order
of justices for the removal of Mary Brown, widow, and her children,
from the parish of Woburn in the county of Bedford to St. Alban,
John Hilliard, an inhabitant of the appellants' parish of St. Alban,
and rated and paying to the poor's rates of the said parish, was called
as a witness on the part of the respondents, and refused to give evi-
dence. The Sessions were of opinion that the said John Hilliard was
not compellable to give evidence, and quashed the said order; subject
to the opinion of this Court on the point.
» And so in Rex v. Cornelius, 2 Strange, 1210 (1745).
See Comments on this class of cases in Atty. Gen. v. Le Merchant, 2 D. &
E. 201 (1788), distinguishing between an order on the defendant to produce
books or papers, and merely permitting the prosecution to use secondary evi-
dence of the contents of books or papers which the defendant declines to
produce on notice. It seems that the privilege is confined to natural persons
and that a corporation has no privilege which will excuse the production
of papers. Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. G52 (1906).
The privilege does not apply to papers wrongfully taken from a defendant.
Trask v. People, 151 111. 523, 38 N. E. 248 (1894) ; State v. Pomeroy, 130 Mo.
4S9. 32 S. W. 1002 (1S95) ; People v. Adams, 176 N. Y. 351, 6S N. E. 636. 63 L.
R. A. 406, 9S Am. St. Rep. 675 (1903). But in Weeks v. U. S., 232 U. S. 383. 34
Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177 (1013)
it was held that the Fourth Amendment to the Constitution entitles a de-
fendant to the restoration of papers wrongfully taken from him by the pros-
ecution; and where this has been refused by the court, such papers should
be excluded at the trial.
But see Schenck v. U. S., 249 U. S. 47. 39 Sup. Ct. 247, 63 L. Ed. (19 lib
where incriminating documents were seized under a valid search warrant.
3^
■J ' r 7 ^- ^-^^i cd
^i^l^U y^c^c *sfc^/ 77 jul^^uz
.^/>— r ^f /} '—/•/? //I/-0. , ^ , / /7
234 witnesses (Ch. 2
Lord Eixenborough, C. J., now delivered the judgment of the
Court.
This Sessions case was argued on Wednesday last, and the Court
wished to consider, whether the very ungracious objection, made by
a rated inhabitant of the appealing parish, to be examined as a witness,
when called upon by the respondents, were well founded ; and, on con-
sideration, we are of opinion that it was. The parties appealing before
the court of quarter sessions, as appeared by the proceedings returned
to this court, were the churchwardens and overseers of the parish of
St. Alban; which at first seemed to afford an answer to the objection;
that the inhabitant proposed to be called was not a party to the proceed-
ing: but in reality the appeal is by them on behalf of the inhabitants
of the parish, who are all of them, paying to the rates, the parties
grieved, and are all directly and immediately interested in the event
of the proceeding, by which the maintenance of the pauper is to be fixed
on them, or removed from them, as well as the costs. It is a long es-
tablished rule of evidence, that a party to the suit cannot be called
upon against his will by the opposite party to give evidence ; and we
think that the late act of the 46th of the king does not break in upon
this rule. That act takes away the right of objecting by reason only,
or on the sole ground, that the answering the question may establish,
or tend to establish, that the witness owes a debt, or is otherwise sub-
ject to a civil suit. But that is not the ground of the present objec-
tion : nor does it appear to us to have been the intention of the leg-
islature by this act of parliament to alter the situation of parties to a
suit or proceeding, more especially in a proceeding such as the pres-
ent, where the situation of Hilliard, the person proposed to be ex-
amined, did not bring him within the words of the act, nor the incon-
venience intended to be remedied by it.' We therefore are of opinion
that the Sessions have properly determined the party not to be com-
pellable to give evidence. And that their order, quashing the order
of the two justices, must be affirmed. 10
BRYAN et al. v. STATE.
(Supreme Court of Georgia, 1S70. 40 Ga. 688.)
Bryan, A. J. Moye and N. M. Weaver, were required by rule to ap-
pear before the Superior Court and show cause why they should not
be fined for a neglect of their duties as road commissioners of the
county. They answered and were at issue with the State ; they were
tried jointly. The solicitor general proposed to examine said Bryan
io And so in Benoist v. Darby, 12 Mo. 196 (1848), a person for whose use
the action was brought not compellable to- testify. This privilege has been
abolished in practically all jurisdictious; e. g. Code Civ. Proc. N. Y. § 828,
ante, p. 170.
Sec. 3) privilege 235
as a witness for the State. Defendant's counsel contended that this
was a criminal proceeding, and that Bryan could not be compelled
to testify against himself. The Court overruled the objection, Bryan
was examined, and the State closed. Weaver and Moye testified in
behalf of defendants. The Court fined each of said parties $50.00.
Compelling Bryan to testify is assigned as error. Other points were
made but were not passed upon by this court in this case.
McCav, J. It has been from time immemorial a settled principle
of the common law, that no one shall be compelled to answer any ques-
tion as a witness, tending to criminate himself or to subject him to a
fine or forfeiture, or any criminal charge. 1 Greenleaf, Ev. pages 620,
621. Our Evidence Act of 1866, Code, section 3798, making all
persons competent and compellable to be witnesses, contains sub-
stantially the same principle. The words used are : "No person shall
be compellable to answer any question tending to criminate himself of
herself."
It is true this is not exactly a criminal case, yet, it closely analogizes
itself to such cases. The Court will, if the jury sustain the com-
plaint, fine the defendant, and the answer to the questions will be an
answer to a question tending to criminate the witness. We think
therefore it was error in the Court to compel this witness to answer,
he objecting.
Judgment reversed.
STATE v. GARRETT et al.
(Supreme Court of North Carolina, 1S74. 71 N. C. 85, 17 Am. Rep. 1.)
The prisoners were charged with the murder of Alvina Garrett,
a girl of fourteen years of age; on the trial, Lucy Stanley was ac-
quitted.
The evidence for the State established that on the 26th of August,
1873, the prisoners made an out-cry that the deceased came to her
death by her clothes accidentally catching fire while she was asleep;
and when the witness reached the house where the body of the girl,
and where the prisoners were, Anica Garrett told the witness that
"she," Anica, "was asleep when she was awakened by the deceased
screaming; that she went to her, her clothes were still burning, and
in attempting to put out the flames, she, Anica, burnt one of her
hands."
By Dr. Walker, the examining physician on the Coroner's inquest,
it was proved that the body of the deceased girl was not burned be-
fore, but after death, there being no serum in the blisters, &c.
The prisoner, Anica, while under arrest, and very much agitated
before the Coroner, and after the jury had rendered their verdict
against her, in their presence, was ordered by the Coroner to unwrap
236 witnesses (Ch. 2
the hand she alleged had been burnt, and show it to Dr. Walker, so
that it might be seen if it had been burned or not. This she did, and
there was no indication whatever of any burn upon it. This evidence
was objected to by the counsel for the prisoner, because it was in sub-
stance compelling the prisoner to furnish evidence against herself ;
and that being under arrest, and alarmed, nothing which she had
said or done while under arrest, and at the Coroner's command, was
admissible in evidence against her, she not having been cautioned and
informed of her rights according to law.
The Court ruled that anything the prisoner said at the inquest was
inadmissible, but that the actual condition of her hand, although she
was ordered by the Coroner to unwrap it and exhibit to the doctor,
was admissible as material evidence to contradict her statement to the
witness on the night of the homicide and before she was arrested.
To this ruling, counsel for prisoner excepted.
The jury returned a verdict of guilty. Rule for a new trial, granted
and discharged. Judgment of death and appeal by prisoner.
Bynum, J. The prisoner objected to the admissibility of the evi-
dence as to the condition of her hand and relied upon the case of
State v. Jacobs, 50 N. C. 259.
The distinction between that and our case is that in Jacobs' case,
the prisoner himself, on trial, was compelled to exhibit himself to the
jury, that they might see that he was within the prohibited degree of
color, thus he was forced to become a witness against himself. This
was held to be error.
In our case, not the prisoners, but the witnesses, were called to prove
what they saw upon inspecting the prisoner's hand, although that in-
spection was obtained by intimidation.
The prisoner had alleged that she had her hand burned in endeavor-
ing to extinguish the fire upon the deceased, and at the Coroner's in-
quest she carried her hand wrapped up in a handkerchief and thus
concealed it from view. She was made to unwrap and show her hand
to the physician, which thus exposed, upon examination, showed no
indication of a burn. It was evidently a fraud adopted to give counte-
nance and support to her story, and the Coroner was justified in ex-
posing a trick upon the public justice of the country.
The later cases are uniform to the point that a circumstance tend-
ing to show guilt may be proved, although it was brought to light by
declaration, inadmissible, per se, as having been obtained by improper
influence. Arch. Crim. PI. 131, and note by Waterman, State v.
Johnson, 67 N. C. 55. Familiar illustrations are where the accused is,
by force, made to put his foot in a track, or allow the foot to be
measured, where he is, by duress, compelled to produce stolen goods,
or to disclose their hiding place, and they are there found. In these
cases the facts thus brought to light are competent evidence, though
the declarations of the accused, made at the time, are excluded as hav-
ing been obtained by improper influence.
Sec. 3) privilege 237
We have carefully examined the whole record, and we find no de-
fect therein.
There is no error. This will be certified to the Court below that
further proceedings be there had, according to law.
Per Curiam. Judgment affirmed. 11
PEOPLE v. TYLER.
(Supreme Court of California, 1869. 36 Cal. 522.)
Sawyer, C. J. 12 * * * At the trial the defendant did not avail
himself of' the right conferred by this Act [St. 1865-66, p. 865] to
offer himself as a witness on his own behalf. During the argument
of the case, the District Attorney called the attention of the jury to
the fact that the defendant had not testified in his own behalf, and
argued and insisted before said jury that the silence of the defendant
was a circumstance strongly indicative of defendant's guilt. Defend-
ant's counsel objected to this course of argument, and requested the
Court to require the District Attorney to refrain from urging such
ii And so where intimidation was used to compel a defendant to produce
a pistol. State v. Turner, 82 Kan. 787, 109 Pac. 654, 32 L. R. A. (N. S.) 772,
136 Am. St Rep. 129 (1910) ; or to try on clothing, Holt v. U. S., 218 L T . S.
245. 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138 (1910).
That the privilege was not violated where the sheriff took the defendant's
shoes and compared them with certain tracks, see State v. Barela, 23 N. M.
395, 16S Pac. 545, L. R. A. 1918B, 844 (1917), annotated.
In State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530 (1879), it was held that
the privilege was not violated bv a compulsory examination of the defendant's
arm. But in Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717 (18S1), it was
held error to compel the defendant to exhibit his leg to a witness in the pres-
ence of the jury. For a collection of the cases, see People v. Gardner, 28 L.
R. A. 699 (1894), annotated case.
In the earlier periods it seems to have been taken as a matter of course
that the defendant might be inspected in the presence of the jury. In the
trial of Capt. Thomas Vaughan on a charge of treason before Lord Chief
Justice Holt, assisted by several other judges, at the Old Bailey in 1696, 13
Howell's State Trials 485, the practice is illustrated by the following (page
517):
"Mr. Phipps: Did you know any other Thomas Vaughan but this?
"French: No, not in Galloway.
"Rivet: This may be a confirmation of what I say; if it be the same gen-
tleman, his hair is reddish.
"L. C. J.: Pull off his peruke (which was done).
"Vaughan: My hair is not red.
"L. C. J.: How are his eye brows?
"Vaughan: A dark brown, my lord, the same as my wig.
"Baron Powis: Let somebody look on it more particularly. (Then an of-
ficer took a candle, and looked on his head, but it was shaved so close the
colour could not be discerned.)"
In modern times it is considered proper to require a defendant to stand
up in the presence of the jury in order that a witness might identify him.
People v. Gardner, 144 N. Y. 119, 3S N. E. 1003, 28 L. R. A. 699. 43 Am.
St. Rep. 741 (1894) ; State v. Ruck, 194 Mo. 416, 92 S. W. 706, 5 Ann. Cas.
976 (1906).
12 Statement and part of opinion omitted.
238 witnesses (Ch. 2
inference, but the Court declined to interfere, and intimated that
the law justified the counsel in the course pursued. Counsel thereupon
continued to urge before the jury that the silence of the defendant was
a circumstance tending strongly to prove his guilt, and the counsel
for the prisoner excepted.
At the close of the argument of the case to the jury the defendant's
counsel asked the Court to give to the jury the following instruc-
tion: "The jury should not draw any inference to the prejudice of
the defendant from the fact that he did not offer himself as a witness
in his own behalf. It is optional with a defendant to do so or not,
and the law does not intend that the jury should put any construction
upon his silence unfavorable to him." The Court refused to give
the instruction, and defendant excepted. The action of the Court in
the premises is claimed to be erroneous. * * *
Upon an examination of the Act, we find that a person charged
with an offense, "shall, at his own request, but not otherwise, be
deemed a competent witness." It is optional with him, then, whether
he will testify or not ; and section 2 provides that "nothing herein con-
tained shall be construed as compelling any person to testify." This
is but a re-enactment by the statute of that provision of our State Con-
stitution, which says, no person "shall be compelled in any criminal
case to be a witness against himself." (Art. 1, Sec. 8.)
At the trial, by his plea of not guilty, the party charged denies the
charge against him. This is itself a positive act of denial, and puts
upon the People the burden of affirmatively proving the offense alleged
against him. When he has once raised this issue by his plea of not
guilty the law says he shall thenceforth be deemed innocent till he is
proved to be guilty, and both the common law and the statute give
him the benefit of any reasonable doubt arising on the evidence. Now,
if, at the trial, when, for all the purposes of the trial, the burden is
on the People to prove the offense charged by affirmative evidence, and
the defendant is entitled to rest upon his plea of not guilty, an in-
ference of guilt could legally be drawn from his declining to go upon
the stand as a witness, and again deny the charge against him in the
form of testimony, he would practically, if not theoretically, by his
act declining to exercise his privilege, furnish evidence of his guilt that
might turn the scale and convict him. In this mode he would indirect-
ly and practically be deprived of the option which the law gives him,
and of the benefit of the provision of the law and the Constitution,
which say, in substance, that he shall not be compelled to criminate
himself. If the inference in question could be legally drawn the very
act of exercising his option as to going upon the stand as a wit-
ness, which he is necessarily compelled by the adoption of the stat-
ute to exercise one way or the other, would be, at least to the extent
of the weight given by the jury to the inference arising from his
declining to testify, a crimination of himself.
Sec. 3) PBIVILEGH 239
Whatever the ordinary rule of evidence with reference to inferences
to be drawn from the failure of parties to produce testimony that
must be in their power to give, we are satisfied that the defendant,
with respect to exercising his privilege under the provision of the Act
in question, is entitled to rest in silence and security upon his plea of
not guilty, and that no inference of guilt can be properly drawn against
him from his declining to avail himself of the privilege conferred upon
him to testify on his own behalf; that to permit such an inference
would be to violate the principles and the spirit of the Constitution and
the statute, and defeat rather than promote the object designed to be
accomplished by the innovation in question.
We are of opinion, therefore, that the Court erred in permitting
the District Attorney to pursue the line of argument to which objec-
tion and exception were taken, and intimating its approbation of the
ground taken, and, especially after what had transpired, in refusing the
instruction asked on behalf of defendant for the purpose of correcting
any erroneous view that might have been impressed on the minds of
the jury. We think such instruction proper in all cases where the de-
fendant desires it. * * * 13
PEOPLE v. DUPOUNCE.
(Supreme Court of Michigan, 1903. 133 Mich. 1, 94 N. W. 3S8, 103 Am. St.
Rep. 435, 2 Ann. Cas. 246.)
Carpenter, J. Defendant was convicted in the court below of the
offense of bastardy. The complaint alleged, and the evidence for the
people tended to prove, that the bastard child was born February 9,
1901, and that it was begotten on or about May 15, 1900. The com-
plaining witness testified that she became 16 years of age March 17,
1901. Defendant became a witness in his own behalf, and on direct
examination testified that he did not have intercourse with the com-
plaining witness in the months of April or May, 1900. On cross-ex-
amination, despite defendant's objection that, contrary to section 32
is Statutes in nearly all of the states now provide that the failure of the 1
accused to testify in his own behalf shall not create any presumption against j
him, thus impliedly excluding adverse inference or comment Com. v. Har-
low, 110 Mass. 411 (1872). In the absence of such statutory restrictions
there is a strong tendency to hold that the failure of the defendant to tes-
tify is the proper subject of comment and inference. State v. Bartlett, 55
Me. 200 (1867); Parker v. State, 61 N. J. Law, 30S, 39 Atl. 051 (1S9S), fol-
lowed in several later cases in that state. This view appears out of harmony
with the rule applied to other privileges. It may be quite natural to infer
that an accused remains silent because he cannot truthfully deny the chargi
but there are other possible and not improbable explanations. An innocent
man might consider it wiser to remain silent rather than to be compelled to
disclose suspicious circumstances which would probably outweigh bis denial,
People v. Forbes, 143 N. Y. 219. 38 N. E. 303 (1894); or, though innocent of
the offense in question, he might be compelled to disclose a more serious
crime, as in People v. Dupounce, post, p. 239.
240 witnesses (Ch. 2
of article 6 of the Constitution of Michigan, he was thereby compelled
to be a witness against himself, he was made to answer questions which
proved that he had sexual intercourse with the complaining witness in
December, 1899, and that this continued until April 1, 1900; and that,
though their relation was, on account of his illness, interrupted in
April and May, it was resumed after June 1st. The sole question
raised in this court relates to the ruling compelling defendant to give
this testimony.
While it is clear that the cross-examination in this case compelled
defendant to testify to the commission of the crime of rape, as the
complaining witness was less than 16 years of age (see section 11,489,
3 Comp. Laws 1897), and though he could not be convicted of the
offense charged in the complaint by reason of the intercourse occur-
ring before April 1, or after June 1, 1900 (see Hull v. People, 41 Mich.
167, 2 N. W. 175), nevertheless testimony establishing these other acts
of intercourse had a legitimate tendency to prove defendant guilty of
the offense for which he was being tried, and therefore to contradict
his testimony on direct examination. See People v. Schilling, 110
Mich. 412, 68 N. W. 233 ; People v. Keefer, 103 Mich. 83, 61 N. W.
338; Matthews v. Detroit Journal Co., 123 Mich. 608, 82 N. W. 243;
People v. Jamieson, 124 Mich. 164, 82 N. W. 835. If defendant, by
availing himself of the privilege of testifying in his own behalf, given
him by our statute (see section 10,211, 3 Comp. Laws 1897), waived his
constitutional right to refuse to answer the questions complained of,
the ruling of the trial court is correct; otherwise, it is erroneous.
While this court has held (see People v. Howard, 73 Mich. 10, 40 N.
W. 789) that a defendant who takes the stand as a witness in his own
behalf is subject to the same inquiries upon cross-examination as any
other witness, neither that nor any other decision of this court can
be said to be an authority touching the precise question involved in
this case.
The question has, however, received the attention of the courts of
many of our sister states. Contrary to the views of that eminent au-
thor and judge, Mr. Justice Cooley (see his Constitutional Limitations,
at page 317), it seems to have been universally held that the defendant,
by taking the stand in his own behalf, thereby waives, to a certain ex-
tent at least, his constitutional right to refuse to testify. While the
Supreme Court of Maine has held that the statute of that state, which
reads, "The defendant in a criminal prosecution who testifies in his
own behalf shall not be compelled to testify on cross-examination to
facts which would convict him or furnish evidence to convict him of
any other crime than that for which he is on trial," "does not alter
the law as it stood in this state before the enactment" (see State v.
Witham, 72 Me., at page 534), the overwhelming weight of authority
supports the proposition, contended for by the people, that he thereby
waives his constitutional right to refuse to answer any question, ma-
terial to the case, which would, in the case of any other witness, be
Sec. 3) PRIVILEGE 211
legitimate cross-examination. Commonwealth v. Nichols, 114 Mass.
285, 19 Am. Rep. 346; Commonwealth v. Bonner, 97 Mass. 587; Com-
monwealth v. Mullen, 97 Mass. 545 ; Commonwealth v. Morgan, 107
Mass. 199; Foster v. Pierce, 11 Cush. (Mass.) 437, 59 Am. Dec. 152;
Commonwealth v. Smith, 163 Mass. 431, 40 N. E. 189; Connors v.
People, 50 N. Y. 240; People v. Tice, 131 N. Y. 651, 30 N. E. 494, 15
L. R. A. 669; State v. Ober, 52 N. H. 459, 13 Am. Rep. 88; Norfolk
v. Gaylord, 28 Conn. 309; State v. Allen, 107 N. C. 805, 11 S. E.
1016; State v. Pancoast, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. at
page 527; Disque v. State, 49 N. J. Law, 249, 8 Atl. 281 ; State v.
Cohn, 9 Nev. 189.
And this principle applies, even though the answers to such questions
tend to prove him guilty of some other crime than that for which he
is on trial. Commonwealth v. Nichols, State v. Pancoast, and Connors
v. People, supra.
As, in this state, a witness may be asked, on cross-examination, any
question material to the issue (People v. Barker, 60 Mich, at page 302,
27 N. W. 539, 1 Am. St. Rep. 501 ; Ireland v. R. R. Co., 79 Mich.,
at page 164, 44 N. W. 426; Hemminger v. Western Assurance Co.,
95 Mich, at page 359, 54 N. W. 949), we are forced to the conclusion
that there was no error in the ruling complained of, and that the con-
viction should be affirmed. The other Justices concurred. 14
MORRIS v. McCLELLAN.
(Supreme Court of Alabama, 1908. 154 Ala. 639, 45 South. 641, 16 Ann. Cas.
305.)
Dowdell, J. lB This is an action to recover damages for an assault
and battery committed on the plaintiff by the defendant. The defend-
ant pleaded the general issue, and a number c'f special pleas, in which
it was attempted to set up matter in justification of the assault. * * *
The plaintiff filed interrogatories to the defendant under section 1850
14 In Fitzpatrick v. United States, ITS U. S. 304, 20 Sup. Ct. 944, 44 L. Ed.
1078 (1900), where a defendant testified to an alibi, it was held that he was
bound to answer questions tending to show his connection with tbe offense
in question, but there was no suggestion of any collateral offense.
In State v. Wentworth, 65 Me. 234, 20 Am. Rep. 6SS (1S75), the defendant
had denied the authority of a clerk to make a sale of liquor, and the court
held, limiting several earlier cases, including Low v. Mitchell, 18 Me 372
(1S41), that he was bound to answer as to certain prior sales by himself. The
same rule was applied in Powers v. United States, 223 U. S. 303, 32 Sup. Ct.
281, 56 L. Ed. 448 (1912), where the defendant was required to testify to prior
criminal acts; and so in Com. v. Nichols, 114 Mass. 2S5, 19 Am. Rep. 346
(1873). But it would seem that the waiver does not extend to disconnected
crimes merely affecting credibility. State v. Kent, 5 N. D. 516, 07 N. W.
1052, 35 L. R. A. 518 (1S95).
is Statement and part of opinion omitted.
Hint.Ev. — 16
\r L&j^vca. o^sf 6jUj^a ^-d-i*~< jC+J-fa'
V 242 witnesses (Ch. 2
et seq. of the Code of 1896. Some of the questions propounded the
defendant answered, and others he refused to answer on the ground
that he could not be required to give evidence which might subject him
to criminal punishment. In so doing he exercised his constitutional
right. The interrogatories, with the answers to certain questions and
jU the refusal to answer others, were read to the jury. The defendant's
'^ refusal to answer certain questions was the subject of comment in
X. argument by counsel to the jury. The question is now presented
r^f^ whether it was permissible for the plaintiff, over the defendant's objec-
>^ tion, to read to the jury those interrogatories which the defendant re-
?>^Y fused to answer, and the defendant's ground of refusal, and to com-
Vj ment on the same in argument. In criminal prosecutions the failure or
r» refusal of the defendant to testify cannot be commented on in argu-
ment ; but we know of no authority applying this rule to civil actions,
nor do we see any reason for so doing. The plaintiff in a civil action
has rights, as well as the defendant; and one of these rights is to se-
cure evidence to support his cause in court, even to calling upon the
defendant as a witness to supply it. It has always been the rule in
civil actions that the failure of a party to the suit, when present at the
trial, to testify as to a fact in issue, furnished legitimate ground of
comment in argument to the jury by the opposite party. The defend-
ant availed himself of his constitutional right of refusal to answer on
the ground stated, and he had his benefit and protection from prosecu-
tion in exercising his privilege ; but he could not expect to extend this
privilege to the deprivation of the plaintiff of his right to comment in
argument on his silence, no matter upon what ground he might put it.
We are of the opinion that the trial court committed no error in its
rulings on this question.
■»r For the errors pointed out, the judgment will be reversed, and the
m cause remanded.
Reversed (on other grounds). 16
CAMINETTI v. UNITED STATES.
DIGGS v. SAME.
HAYS v. SAME.
(Supreme Court of the United States, 1917. 242 U. S. 470, 37 Sup. Ct. 192,
61 L. Ed. 442, L. R. A. 1917F, 502.)
Caminetti, Diggs, and Hays were separately indicted and convicted
in the United States District Court on charges of violating the stat-
ute known as the "White Slave Act" (Comp. St. §§ 8812-8819).
These convictions were affirmed by the Circuit Court of Appeals, 220
i« Where a witness, not a party, exercises his privilege, there can be no
inference against either party. Beach v. United States (C. C.) 46 Fed. 754
(1890).
Sec. 3) PRIVILEGE 243
Fed. 545, 136 C. C. A. 147, 231 Fed. 106, 145 C. C. A. 294. The de-
fendants obtained writs of certiorari to review these decisions. In the
Supreme Court the cases were argued together. 17
Mr. Justice Day [after upholding the validity of the statute, and the
construction placed upon it by the trial court] : Notwithstanding this
disposition of the questions concerning the construction and consti-
tutionality of the act, certain of the questions made are of sufficient
gravity to require further consideration.
In the Diggs Case, after referring to the fact that the defendant
had taken the stand in his own behalf, and that his testimony differed
somewhat from that of the girls who had testified in the case, and in-
structing the jury that it was their province to ascertain the truth of
the matter, the court further said: "After testifying to the relations
between himself and Caminetti and these, girls down to the Sunday
night on which the evidence of the government tends to show the trip
to Reno was taken, he stops short and has given none of the details
or incidents of that trip nor any direct statement of the intent or pur-
pose with which that trip was taken, contenting himself by merely
referring to it as having been taken, and by testifying to his state of
mind for some days previous to the taking of that trip. |_Now this
was the defendant's privilege, and, being a defendant, he could not be
required to say more if he did not desire to do so; nor could he be
cross-examined 18 as to matters not covered by his direct testimony .1
But in passing upon the evidence in the case for the purpose of fincR
ing the facts you have a right to take this omission of the defendant
into consideration. A defendant is not required under the law to
take the witness stand. He cannot be compelled to testify at all, and
if he fails to do so, no inference unfavorable to him may be drawn
from that fact, nor is the prosecution permitted in that case to com-
ment unfavorably upon the defendant's silence; 19 but where a de-
fendant elects to go upon the witness stand and testify, he then sub-
jects himself to the same rule as that applying to any other witness,
and if he has failed to deny or explain acts of an incriminating nature
that the evidence of the prosecution tends to establish against him,
such failure may not only be commented upon, but may be considered
by the jury with all the other circumstances in reaching their conclu-
sion as to his guilt or innocence; since it is a legitimate inference that,
it Statement has been condensed and part of opinion and the dissenting
opinion of Mr. Justice McKenna omitted.
is But see Fitzpatrick v. United States, 178 U. S. 304, 20 Sup. Ct. 944. 4 1
L. Ed. 107S (1900). and Towers v. United States, 223 U. S. 303, 32 Sup. Ot 281.
56 L. Ed. 448 (1912), as to the extent to which a defendant in a criminal <ase
is subject to cross-examination. Probably a court would not feel justiticd in
punishing a defendant for refusal to answer a proper question on cross-
examination.
i" Section 14G5, U. S. Comp. St., provides that tlie failure of the accused
to testify shall not create any presumption against him.
244 witnesses (Ch. 2
could he have truthfully denied or explained the incriminating evi-
dence against him, he would have done so."
This instruction, it is contended, was error in that it permitted the
jury to draw inferences against the accused from failure to explain
incriminating circumstances when it was within his power to do so,
and thus operated to his prejudice and virtually made him a witness
against himself, in derogation of rights secured by the 5th Amendment
to the Federal Constitution.
There is a difference of opinion expressed in the cases upon this
subject, the circuit court of appeals in the eighth circuit holding a
contrary view, as also did the circuit court of appeals in the first cir-
cuit. See Balliet v. United States, 64 C. C. A. 201, 129 Fed. 689;
Myrick v. United States, 134 C. C. A. 619, 219 Fed. 1. We think
the better reasoning supports the view sustained in the court of ap-
peals in this case, which is that where the accused takes the stand in
his own behalf and voluntarily testifies for himself (Act of March 16,
1878, 20 Stat, at L. 30, chap. 37, Comp. St. § 1465), he may not stop
short in his testimony by omitting and failing to explain incriminating
circumstances and events already in evidence, in which he participated
and concerning which he is fully informed, without subjecting his si-
lence to the inferences to be naturally drawn from it.
The accused, of all persons, had it within his power to meet, by his
own account of the facts, the incriminating testimony of the girls.
When he took the witness stand in his own behalf he voluntarily re-
linquished his privilege of silence, and ought not to be heard to speak
alone of those things deemed to be for his interest, and be silent where
he or his counsel regarded it for his interest to remain so, without the
fair inference which would naturally spring from his speaking only
of those things which would exculpate him and refraining to speak
upon matters within his knowledge which might incriminate him. The
instruction to the jury concerning the failure of the accused to' ex-
plain acts of an incriminating nature which the evidence for the prose-
cution tended to establish against him, and the inference to be drawn
from his silence, must be read in connection with the statement made
in this part of the charge which clearly shows that the court was speak-
ing with reference to the defendant's silence as to the trip to Reno
with the girls named in the indictment, and as to the facts, circum-
stances, and intent with which that trip was taken; and the jury was
told that it had a right to take into consideration that omission.
The court did not put upon the defendant the burden of explain-
ing every inculpatory fact shown or claimed to be established by the
prosecution. The inference was to be drawn from the failure of the
accused to meet evidence as to these matters within his own knowl-
edge and as to events in which he was an active participant and fully
able to speak when he voluntarily took the stand in his own behalf.
We agree with the circuit court of appeals that it was the privilege
of the trial court to call the attention of the jury in such manner as
Sec. 3) privilege 245
it did to this omission of the accused when he took the stand in his
own behalf.
See, in this connection, Brown v. Walker, 161 U. S. 591, 597, 40
L. Ed. 819, 821, 5 Interst. Com. R. 369, 16 Sup. Ct. 644; Sawyer
v. United States, 202 U. S. 150, 165, 50 L. Ed. 972, 979, 26 Sup. Ct.
575, 6 Ann. Cas. 269; Powers v. United States, 223 U. S. 303, 314, 56
L. Ed. 448. 452, 32 Sup. Ct. 281. * * *
Affirmed. 20
THE KING v. EDWARDS.
(Court of King's Bench, 1791. 4 Dura. & E. 440.)
On an application to bail the prisoner, who was charged with grand
larceny, one of the bail was asked, whether he had not stood in the
pillory for perjury; this question was objected to as tending to crim-
inate him, but
The Court over-ruled the objection; saying there was no im-
propriety in the question, as the answer could not subject him to any
punishment: and the bail admitting the fact, he was of course re-
jected.
CATES v. HARDACRE.
(Court of Common Pleas, 1811. 3 Taunt. 424.)
This was an action by an endorsee against the drawer of a bill,
drawn, payable to the drawer's order, upon Stratton, and by him ac-
cepted and afterwards dishonoured; it was stated in the declaration
to have been endorsed by the defendant to the plaintiff. The case
was tried before Heath, J., at Westminster, at the sittings after last
Hilary term. The plaintiff proved his case. The defence intended to
be set up was usury. The first witness called on the part of the de-
fendant was one Taylor, and the bill having been put into his hands,
he was asked by Shepherd, Sergt., for the defendant, "whether that
bill had ever been in his possession before;" upon which Best, Sergt.,
interfered, by asking the witness whether he had not been indicted
for usury in this transaction, and upon his answering in the affirma-
tive, Best cautioned him against answering questions which might tend
to criminate him ; the witness said that he thought his answer to the
question proposed would have a tendency to convict him of the offence
of usury; the learned judge told him that if he thought so, he was not
bound to answer the question: the witness availed himself of this di-
20 Accord: People v. Trybus, 219 N. Y. 18, 113 N. E. 538 (1916), where tho
defendant confined his testimony to the question as to how an alleged con-
fession had been obtained from him.
246 witnesses (Ch. 2
rection, and the counsel for the defendant being thus prevented from
pursuing his inquiry, a verdict passed for the plaintiff.
On this day Shepherd, Sergt., moved for a new trial, contending
that the judge's direction was wrong; that it was not sufficient that
a witness thought that his answers would tend to criminate him ; but
that it ought clearly to appear that they would have that effect.
Mansfield, C. J. Your questions go to connect the witness with
the bill, and they may be links in a chain.
Rule refused. 2X
ZOLLICOFFER v. TURNEY.
(Supreme Court of Tennessee, 1834. 6 Yerg. 297.)
This was an action on the case to recover the value of a lot of cotton
shipped on board the defendant's boat, which was lost. The only
question in this cause arises upon the facts set forth in the following
bill of exceptions:
"Be it remembered, that upon the jury being sworn in this cause,
the plaintiff introduced James S. Walker as a witness, and offered to
prove by him, that the bill of lading upon which this action is founded,
was executed by Turney to him ; and that the cotton or bales marked
therein with the letters "J. J. Z." were shipped by him, as the agent
of the plaintiff, on board of defendant's boat. The witness objected
to answering the question, and upon being sworn upon his voir dire,
stated he was a partner, together with others, of the defendant, Tur-
ney, in the freighting of said cotton, and that he could not give evi-
dence without subjecting himself to liability as a partner. 22
CaTron, C. J., delivered the opinion of the court.
The question presented by the annexed bill of exceptions, for the
first time comes before this court for decision. Can a witness be heard
to object, that he will be compelled to disclose facts going to show he
was a partner in the transaction which gave cause of action; and
that he is equally liable with the defendant to the plaintiff?
The witness was called by the plaintiff. The defendant did not, and
could not object, to his competency; but the witness, for the reason
above, objected on his own account to testifying, and was excused by
the court, contrary to the wishes of the plaintiff who had called him.
Of necessity the question in England has arisen generally in course
of practice before the nisi prius courts, and been determined by single
judges. They disagreed. The writers on evidence have therefore
adopted the opinions of those most in accordance with their own.
The consequence was, that until the question arose before the House
of Lords in 1800, on Lord Mellville's impeachment, the rule of evi-
2i See, also, Rex v. Hodgson, Russell & Ryan, 211 (1S12), post, p. .•595.
22 Statement condensed.
Sec. 3) privilege 247
dence was unsettled, and greatly perplexed by conflicting opinions of
individual judges.
Shortly before, Mr. Peake had published his book on evidence,
holding that a witness was not compellable to give any answer which
might subject him to a civil action, or charge himself with a debt.
Peake, 184. He relies upon Title v. Grevatt, 2 Lord Ray. 1008,
where Holt remarked, "A man that conveys lands, may be a witness to
prove he had no title because that is swearing against himself ; but
he is not compellable to give such evidence." The remark seems to
have been made during the progress of a trial, whether called for, or
obiter, does not appear. The report is a loose note entitled to little
weight.
Peake is a writer of accuracy and merit, and has had much influence
on the practice of this country.
The subsequent treatises of Phillips and Starkie on Evidence, refer
to the declaratory act of 46 George III, and afford no further infor-
mation on the subject. 1 Phil, on Ev. 225 ; 1 Starkie, 135.
Nothing has been settled in this State. In Cook v. Corn, 1 Overt.
340, brought before the old superior court in 1808, something was said
on the question, but nothing decided.
We are therefore compelled to resort to the British authorities
to ascertain the law. In Lord Mellville's case, the twelve judges
were called upon for their respective opinions, "whether, accord-
ing to law, a witness can be required to answer a question relevant
to the matter in issue, the answering of which has no tendency to
accuse himself, but the answering of which may establish or tend
to establish, that he owes a debt recoverable by civil suit?
Eight of the judges reported the witness was compellable to an-
swer, and four declared he was not. With the eight, Lord Eldon,
then out of office, concurred. 1 Hall's Law Journal, 223, and Peake's
Evidence, 188, Philadelphia edition of 1812, in note.
An act of Parliament was then passed, (46 George III,) declara-
tory of the law, in affirmance of the opinion of the majority of the
judges. This act can have no influence on us, further than it furnishes
evidence of the common law theretofore existing.
The majority of the English judges thought, and this court thinks,
no good reason exists why the rules of evidence should be different in
the courts of law and equity. In equity the witness, Walker, could
not be protected, because Turney, the defendant, could be compelled
to give evidence for the plaintiff, either by answer or before the
master ; and in this suit at law, a bill could be filed, and the an-
swer of Turney be had and read as evidence on the trial. As no
bill of discovery could be filed against the co-partner, Walker, who
is not sued, of course, he could be compelled to testify. The prom-
inent reason given by the eight judges in Lord Mellville's case is,
248 witnesses (Ch. 2
that clearly in equity the witness could be compelled to answer, and
no rule existed why the rule at law should not be the same.
We take the true rule to be that a witness cannot, by law, refuse
to answer a question relevant to the matter in issue, (the answering
of which has no tendency to accuse himself, or to expose him to pen-
alty or forfeiture of any nature whatsoever,) by reason only, or on
the sole ground that the answering of such question may establish,
or tend to establish,, that he owes a debt, or is otherwise subject to a
civil suit, either at the instance of the plaintiff in the action then on
trial, or of any other person.
The judgment will be reversed, and the cause remanded for another
trial.
Judgment reversed.
HENRY v. BANK OF SALINA.
(Court of Appeals of New York, 1847. 1 N. Y. 83.)
On error from the Supreme Court. The Bank of Salina sued Hen-
ry and Pierce in the court below upon a promissory note signed by
Pierce as principal and Henry as surety, payable to the bank and not
negotiable. Henry pleaded the general issue and gave notice of the
defense of usury, verifying the notice according to the usury act of
1837. On the trial at the Circuit in April, 1844, after the plaintiffs had
rested, the defendant's counsel opened the defense to the jury, and
stated, among other things, that the note was made to be discounted
at the plaintiffs' bank, and was in the first instance presented by Pierce
to the bank for discount; that the bank refused to discount it; that
this fact was known to Elisha Chapman, who was the teller of the
bank; that the note was afterward presented to Chapman, who, with
full knowledge that the note had been presented to the bank for dis-
count and refused, discounted the same, and in so doing deducted $10
from the face of the note, under a corrupt and usurious agreement be-
tween him and Pierce. The note was payable in sixty-three days from
its date.
To prove this defense the defendant called the said Chapman and
had him sworn as a witness, and in the first instance proposed to prove
by him, under the plea of the general issue, that the note was usurious
and void. Chapman objected to answering on the ground that his tes-
timony would form a link in the chain of evidence to convict him of a
misdemeanor, or would expose him to a penalty or forfeiture. In
support of the objection it was insisted that when called as a mere
witness, and not as a party under the usury act of 1837, he could not
be compelled to testify under the provisions of that act. It was also
insisted that he was protected from answering under 1 R. S. 595, § 28,
which declares that "no president, director, cashier, clerk or agent, of
Sec. 3) privilege 249
any corporation having banking powers, and no person in any way in-
terested or concerned in the management of any such corporation, shall
discount or directly or indirectly make any loan upon any note which
he shall know to have been offered for discount to the directors, or
to any officer of such corporation, and to have been refused, and
that every person violating the provisions of that section shall for each
offense forfeit twice the amount of the loan which he shall have made."
The Circuit judge sustained the objection of the witness, and the de-
fendant excepted.
The defendant then offered to prove the usury by the same witness
under the notice of the defense of usury served with the plea, on
the ground that he was the plaintiff in interest. The witness again
objected on the ground, first, that the act of 1837 did not require him
to testify, unless it should first appear that he was the plaintiff in in-
terest and the owner of the note, and second, that he could not answer
and show himself to be the owner of the note, without subjecting him-
self to a penalty or forfeiture under the statute which is above set
forth, or without establishing a link in the chain of evidence which
might subject him to a penalty or forfeiture, under that statute. Ob-
jection sustained and defendant excepted.
The defendant then offered to prove by the witness that he was the
party in interest. This was objected to by the witness, and the objec-
tion sustained on the same grounds, and an exception taken. A verdict
was had for the plaintiffs, and the defendant moved the Supreme
Court for a new trial on a bill of exceptions. That motion was de-
nied and judgment rendered for the plaintiffs. See Bank of Salina v.
Henry, 2 Denio, 155.
Bronson, J. There is another ground, besides those mentioned by
the Supreme Court, on which Chapman was privileged from answering
the questions put to him. It was one branch of the defense that the
witness, being the teller of the bank, discounted the note after it had,
with his knowledge, been offered for discount to the directors, and
been refused by them. If this fact could be established, Chapman
would not only forfeit twice the amount of the loan which he made
(1 R. S. 595, § 28), but he would forfeit the debt itself. As the dis-
counting of the note was expressly forbidden by the statute, there can
be no doubt that the security would be void. £A witness must speak,
though the answer may establish that he owes a debt, or is otherwise
subject to a civil suit; but he is not bound to speak where the answer
may subject him to a forfeiture, or any thing in the nature of a for-
feiture of his estate or interestj 2 R. S. 405, § 71 ; 1 Phil. Ev. 278;
Mitf. Plead. 197, ed. of 1833 ; Livingston v. Tompkins, 4 Johns. Ch.
416, 8 Am. Dec. 598; Livingston v. Harris, 3 Paige, 533, and 11 Wend.
329, s. c. in error. As the answer of the witness might tend to estab-
lish facts which would work a forfeiture of the debt, he was not oblig-
ed to testify. This ground is of itself sufficient to establish the privi-
250 witnesses (Ch. 2
lege of the witness; and as to this, the statute of limitations has no
application.
The grounds on which the privilege of the witness was put by the
Supreme Court are equally conclusive, unless a prosecution under the
usury law, and a suit under a bank law for twice the amount of the
loan, had been barred by the statute of limitations ; and there is noth-
ing in the case to show that a prosecution, or a suit, or both of them,
had not been commenced in due time. In all the cases where it has
been held that the running of the statute took away the privilege of
the witness, it expressly appeared, not only that the time for suing or
prosecuting had elapsed, but that no suit or prosecution had been
commenced, or if one had been commenced, that it had been discon-
tinued. Here the statute was not even mentioned on the trial. It
may not have been necessary for the defendant to prove the negative
fact that no suit or prosecution had been commenced. But if he in-
tended to rely on the statute, he was at least bound to say so ; and then
the witness might have answered, that proceedings against him had
already been commenced.
The witness claimed his privilege, and there was a prima facie case
.for allowing it. If there was any answer to that case, the defendant
should have mentioned it, for the double purpose of allowing the truth
of the supposed answer to be examined at the proper time, and of
dealing fairly with his adversary and the Circuit judge. A party is
not at liberty to start a question, on a motion for a new trial, or in a
court of review, which, had it been mentioned on the trial, might have
received a satisfactory answer. This is a principle of every-day ap-
plication, and there is nothing in this case which should induce a de-
parture from it. 23
LOHMAN v. PEOPLE.
(Court of Appeals of New York, 1848. 1 N. Y. 379, 49 Am. Dec. 340.)
The defendant was convicted in the court of general sessions of
the city and county of New York, under the second section of the act
to prevent the procurement of abortion, passed in 1845, and sentenced
to imprisonment in the county jail. The judgment of the court of ses-
sions was affirmed on a writ of error, by the supreme court, (see 2
Barb. 216,) which last decision the defendant removed by writ of er-
ror into this court.
Upon the trial Maria Bodine, the person named in the indictment,
was called as a witness by the people, and testified that she went to live
with one Cook in the month of July, 1845, that she had intercourse
with him about a month after, which was continued to May, 1846,
at which time she discovered that she was pregnant. Upon the cross-
es Concurring opinion of Wright, J J., omitted.
Sec. 3) PRIVILEGE 251
examination, the counsel for the defendant proposed the following
questions to the witness, which she declined to answer upon the ground
that they would tend to disgrace her. "Had you any sexual inter-
course with any other person than Cook prior to April, 1846? Had
you during the fall of 1845, or winter of 1846, the venereal disease?
Had you any sexual intercourse with any other person than Cook
between July, 1845, and April, 1846?" The court refused to compel
the witness to answer, and to this decision the defendant excepted.- 4
Gardiner, J. * * * As to the questions proposed to Maria Bo-
dine. It is hardly necessary to say that the answers sought to these
questions would have disgraced the witness. She was, therefore,
privileged from answering unless her answers were material to the
issue. Her pregnancy was, it is true, one of the facts to be established
by the prosecution, but whether induced by Cook or any other person
was entirely immaterial. If her response had been in the affirmative
to each of these interrogatories, it would not have been inconsistent
with, or tended to disprove the fact of her pregnancy, or the agency of
the prisoner in procuring the miscarriage, any farther than those an-
swers affected her general character. The privilege of witnesses has
been carried much farther in some of the cases, but all the authorities
agree that where, as in this case, the object of the question is to im-
pair the credibility of the witness, she could not be compelled to an-
swer. (People v. Mather, 4 Wend. 250, 21 Am. Dec. 122, and cases
cited; Cowen & Hill's Notes, No. 521, and cases cited; 1 Burr's
Trial, 244 ; 1 Greenl. §■ 454.) * * *
Judgment affirmed. 25
REG. v. GARBETT.
(Court of Crown Cases Reserved, 1847. 1 Denison, Cr. Cas. 236.)
The prisoner was tried and convicted before Mr. Baron Alderson,
at the Old Bailey Sessions, in May, 1847, of the crime of forging the
acceptance of William Booth to a bill of exchange.
In the course of the trial Mr. Martin for the prosecution proposed
to give in evidence the examination of the prisoner on the trial of the
civil action of Blagden v. Booth, at the last Kingston assizes. The bill
stated in the declaration in that suit was drawn by the prisoner upon
William Booth, Priors Lee, near Oakin Gate, Salop, payable three
months after date to the drawer's order, and purported to be accepted
as follows: "Accepted, payable at Masterman & Co.'s, London, Wil-
liam Booth."
2* Statement condensed and part of opinion omitted
25 That, the privilege does not extend to matters relevant to the issue, see
(ennings v. Prentice, 39 Mich. 421 (lbTSj.
252 witnesses (Ch. 2
The prisoner was called as a witness for the defendant. His exam-
ination in chief was as follows:
This is my signature to the bill as drawer. The bill is made pay-
able to my order. The acceptance was on it when I handed it to
Mr. Phillips (the second indorser).
Then the cross-examination was as follows:
The stamp was never out of my possession till it was handed to Mr.
Phillips.
Had you Mr. Booth's authority to accept it?
I had not. 26 * * *
When was the "William Booth" put upon it?
Between the Friday and the Sunday.
What Friday and what Sunday?
I believe it was between the last Friday and the last Sunday in No-
vember.
After the 21st?
Certainly after the 21st.
After the 21st of November, 1846?
Certainly.
Did you communicate with Mr. Booth on the subject?
Not in any way. * * *
Did you know what you came here to prove?
I did not until I came into the box.
Do you know what you are attempting to prove?
I do.
Do you mean to say it is a forgery?
It is not his handwriting.
Not in his handwriting. Who accepted it, then?
I am in the hands of the Court.
Lord Denman. It must be answered.
The Witness: I state, my Lord, fhat I filled the bill up at Mr.
Phillips's request in his own drawing-room, and handed it to him, and
have never received a penny for it.
Mr. Chambers. I ask you who did that (pointing to the bill) ?
Not Mr. Booth.
Did Mr. Phillips?
No.
Who was present when the bill was filled up?
Mr. Phillips alone.
Were there only you two present?
Mr. Phillips was not present when "William Booth" was written.
William Booth had been written before I filled it up in Mr. Phillips'
drawing-room.
Who was present when "William Booth" was written?
I won't say — only myself.
»o Part of case omitted.
Sec. 3) » PRIVILEGE 253
Was any one else?
I cannot say.
I ask you to tell me whether any other person was present when
"William Booth" was written besides yourself?
I believe a clerk.
What clerk?
That I decline to say.
Mr. Chambers : My Lord, I press the question.
Lord Denman (to the witness). That other person or you must
have written it.
Precisely so.
You knew that when you uttered it?
When I handed it to Mr. Phillips I did know it and Mr. Phillips
knew it too.
By Mr. Chambers : Who was the other person ? I ask the question,
and I submit, my Lord, it is a proper question.
Lord Denman. It must be answered.
The Witness : I decline to answer that. * * *
When the signature "William Booth" was written, was it copied
from anything?
No.
Are you sure it was not?
That is my belief. I strongly believe it was not. * * *
Now, I insist on knowing the name of the party who did it ?
I decline to answer the question.
You say you know nothing at all whether the party had authority or
not?
I believe he had not.
Were you and he the only persons in the room ?
We were.
I ask again the name, and require you to give it to me?
I decline to do it.
Lord Denman. The question must be answered.
I have not said any other person was in the room but myself.
Lord Denman. Then we are to take it you did it yourself.
I decline to answer it. * * *
Mr. Chambers, for the prisoner, objected to those parts of the cross-
examination being read, which followed the prisoner's declining to
answer, and applying to the Court for protection, and the decision of
Lord Denman that he must answer the questions.
The learned Baron received the evidence, but reserved the point for
further argument.
The prisoner was convicted upon this and other evidence, and the
learned Baron reserved the judgment till the opinion of the Judges
could be obtained whether the evidence was properly received.
On the 29th May, 1847, this case was argued before all the judges,
except Parke, B., Wightman, J., and Williams, J.
254 witnesses (Ch. 2
Montagu Chambers, Q. C, for the prisoner: * * * Thirdly.
Although a witness has answered several questions in chief, and in
cross-examination, if he afterwards objects and claims his privilege,
he ought to be protected. In answer to this position, the doctrine
laid down by Dampier, J., Winchester Summer assizes, 1815, 1 Starkie's
Evid. 198, 3d Ed., that "if a witness voluntarily answers questions
tending to criminate him on his examination in chief, he is bound to
answer on cross-examination, however penal the consequences may
be," and a like dictum by Best, C. J., in Dixon v. Vale, 1 C. & P. 278,
may be referred to ; but so general and unqualified a rule can scarcely
be correct, for, if true, it would have been applicable in several of the
cases already cited. Indeed, it can rarely happen that at the com-
mencement of the evidence the questions will be objectionable; and
to hold that the inadvertent answers of a witness to some questions
should bind him to go on to any extent, and to declare himself guilty
of a crime, would be taking away the protection altogether, as its
utility would then be dependent on the skill of the examining coun-
sel, and the degree of prudence, wariness, knowledge and self-pos-
session of the witness. It seems, therefore, that at any period of
the examination, a witness may refuse to answer, and if such refusal
is warranted by the rule before mentioned, he ought not to be com-
pelled to proceed. Paxton v. Douglas, 19 Ves. 225 ; R. v. Slaney,
5 C. & P. 214; Stevenson v. Jones, Peake, Ev. note, p. 179, 5th
Ed. * * *
On 5th June, 1847, Willes was heard for the Crown. * * *
Now, if this be a privilege, the same rule is applicable to it as to all
other privilege's ; the party may use it so as to protect himself, but not
so as to injure others. Hence Lord Tenterden ruled, that if a witness
waive his privilege so far as to answer part of the questions tending
to criminate him, he cannot be exempted from answering the remain-
der. East v. Chapman, 1 M. & M. 48; 2 Phillipp's Ev. p. 418. It
would be monstrous if it were otherwise; for, in that case, it would
amount to a privilege to the witness to garble the facts ; but his priv-
ilege is to be silent; if not silent, he is bound to speak the truth,
the whole truth and nothing but the truth. * * * The object of
the cross-examination was to see whether the bill was accepted by
Booth, or by his authority; or to falsify the statement of the wit-
ness. The witness answers all the previous questions, knowing what
the issue is between the parties, and what he came to prove.
Anderson, B. He never gave any evidence in chief ; he was only
put in as an act of charity ; one short-hand writer said that he only
took down the cross-examination; another said, that he took down
all that was said ; and, therefore, it is clear that no question was put
in chief to show that the acceptance was forged. It makes a material
difference whether the criminating matter is first introduced on cross-
examination, or whether he had already admitted it in his exam-
ination in chief.
Sec. 3) privilege 255
Willes: Where a witness in a matter directly in issue has inadver-
tently gone into part of a transaction, he must answer the. whole truth ;
but it may be otherwise, when a witness has done so in a merely col-
lateral matter. * * *
Coltman, J. But it was not voluntary on his part answering any
of these questions ; he was forced to begin.
Willes : He might have objected at the outset, and not having done
so, he laid himself open to cross-examination on the whole case.
* * *
M. Chambers, Q. C, replied.
In reference to an observation, that the statement of the prisoner
resembled a confession made under undue influence,
Alderson, B., said: "Is not this the true ground of exclusion —
that his liberty of refusing to say anything on the subject has been
infringed — rather than that his evidence is not receivable, because it
is possibly not true?"
Cur. adv. vult.
Afterwards the Judges met to consider this case ; most of them
twice. Nine of them, viz., Parke, B., Alderson, B., Coltman, J.,
Maule, J., Rolfe, B., Wightman, J., CrEsswell, J., Platt, B., and
Williams, J., were of opinion, that if a witness claims the protection
of the Court, on the ground that the answer would tend to criminate
himself, and there appears reasonable ground to believe that it would
do so, he is not compellable to answer; and if obliged to answer,
notwithstanding, what he says must be considered to have been ob-
tained by compulsion, and cannot be given in evidence against him.
They did not decide, as the case did not call for it, whether the mere
declaration of the witness on oath, that he believed that the answer
would tend to criminate him, would or would not be sufficient to pro-
tect him from answering, where sufficient other circumstances did
not appear in the case to induce the Judge to believe that it would not.
The above nine Judges also thought, that it made no difference in the
right of the witness to protection, that he had chosen to answer in
part; being of opinion that he was entitled to it at whatever stage
of the inquiry he chose to claim it, and that no answer forced from
him by the presiding Judge (after such a claim), could be given in evi-
dence against him ; and they did not consider themselves bound by
the ruling of Best, C. J., in Dixon v. Vale, 1 C. & P. 278, and of Lord
Tenterden in East v. Chapman, 2 C. & P. 573. 27
"■ See People v. Forbes, 143 N. Y. 219, 3S N. E. .303 (1S01). that a witness
before the grand jury might claim his privilege after stating that he took no
part in the matter nnder investigation.
256 WITNESSES ' (Ch. 2
FOSTER v. PIERCE.
(Supreme Judicial Court of Massachusetts, 1853. 11 Cush. 437, 59 Am.
Dec. 152.)
This was a complaint under the bastardy act, Rev. Sts. c. 49. At
the trial in the court of common pleas, before Perkins, J., the com-
plainant testified to the facts set forth in the complaint, and also that
she never had sexual intercourse with any person other than respond-
ent. The respondent introduced a witness, whom he asked: "If he
knew of the complainant's having sexual intercourse during the month,
in which the complaint stated the child to have been begotten, with
other persons than the respondent?" To which he replied that "he
did, and on two occasions during that month." The counsel for the
complainant then asked with whom such intercourse was had. This
the witness hesitated about answering, and the counsel for the re-
spondent asked the court to advise the witness that he was not bound
to answer, if the answer would tend to criminate himself. But the
court declined so to do, on the respondent's application, the witness
not having stated that the answer would tend to incriminate himself,
and not having asked the protection of the court. But it became ap-
parent to the court from the statement and the appearance of the wit-
ness that he did not answer, because the answer might tend to crim-
inate himself, and that from the beginning of his evidence he had ful-
ly understood his right to refuse to give testimony of that character,
and thereupon the court declined to state to the witness that he was not
bound to criminate himself, but ruled (the respondent objecting) that
the witness having given the evidence above stated in chief, could not
now under the circumstances, refuse to answer the interrogatory put
by the complainant ; having stated a part of the transaction, he could
not now stop and leave the complainant to suffer under the weight of
the former answer, without giving her the usual means of so fixing
and identifying the transaction, as to contradict or disprove it, if in her
power. If the respondent would strike out the former answer of the
witness, he need not go any further. But if the respondent retained
and used it, the complainant had a right to all the information which
could be given by the witness in answer to the question put. The
respondent then asked the court to state to the witness the consequenc-
es of declining to answer, and the court stated that if the witness did
not answer, he would be committed. The witness then replied that
the intercourse was with himself. The jury found the respondent
guilty, and to the above refusal and instructions he excepted.
Dewey, J. The general principle of law, that a witness is not bound
to criminate himself, is not controverted. But the question, is, at
what state of the case is he to claim his privilege? Can the witness
proceed to state material facts bearing upon the case, and favorable
to one party, and when cross-examined by the opposite party in ref-
Sec. 3) privilege 257
erence to the same subject, decline answering by reason of his privi-
lege not to criminate himself ?
In the case of Dixon v. Vale, 1 Car. & P. 278, it was ruled by Best,
C. J., that if a witness, being cautioned that he is not obliged to an-
swer a question which may criminate him, still does answer such ques-
tion, he cannot afterwards take the objection to any further question
relative to the whole transaction. In East v. Chapman, 2 Car. & P.
570, Abbott, C. J., says upon a similar objection taken to answering
further questions, "you might have objected to giving any evidence,
but having given a long history of what passed, you must go on, oth-
erwise the jury will only know half of the matter." It is said in 1
Greenl. Ev. § 451, where the witness after being advertised of his priv-
ilege, chooses to answer, he is bound to answer every thing relating
to the transaction.
The latter proposition would fully embrace the present case, as the
presiding judge in the bill of exceptions states that from the begin-
ning of his evidence the witness had fully understood his privilege, as
was apparent to the court. This being so, it was unnecessary for the
court further to state the same to him. With this knowledge of his
rights, having chosen to answer in part, he must answer fully. In
the case of Brown v. Brown, 5 Mass. 320, a libel for divorce, the coun-
sel proposed that a witness should be allowed to testify that he knew
the party to have committed the crime of adultery, but without naming
the person with whom the adultery was committed, but the court said
they should inquire of the witness with whom it was committed.
It would seem quite reasonable to go somewhat further than the
present case requires, and adopt the broad principle that the witness
must claim his privilege in the outset, when the testimony he is about
to give, will, if he answers fully all that appertains to it, expose him
to a criminal charge, and if he does not, he waives it altogether. In
Chamberlain v. Willson, 12 Vt. 491, 36 Am. Dec. 356, the principle is
directly held that if a witness submit himself to testify about the very
matter tending to criminate himself, without claiming his privilege,
he must submit to a full cross-examination. If he states a particular
fact in favor of the party calling him, he will be bound on his cross-
examination to state all the circumstances relating to that fact, al-
though in so doing he may expose himself to a criminal charge. State
v. K , 4 N. H. 562.
We are satisfied that the ruling of the presiding judge was correct,
and the
Exceptions are overruled. 28
2 8 And so in Norfolk v. Gaylord, 28 Conn. 309 (1859); Foster v. People, 18
Mich. 266 (1S69).
IIint.Ev. — 17
258 witnesses (Ch. 2
PITCHER v. PEOPLE.
(Supreme Court of Michigan, 1S67. 16 Mich. 1-12.)
The information in this case charged Pitcher with burglariously en-
tering a certain dwelling house, with intent to steal, etc. The proof
tended to show that the building entered was the complainant's barn,
and that the same constituted one of the outbuildings belonging to
the dwelling, and that Pitcher stole certain wool therefrom.
On the trial, one Newman — the confederate of Pitcher — on cross-
examination testified to the commission by him of other offenses, and
when asked in regard to the larceny by him of certain harness on the
night of the burglary, he claimed his privilege on the ground that his
answer would tend to criminate him, and which was sustained by the
court.
Pitcher was convicted, and sentenced to state prison. 29
CoolEy, J. * * * The question not disposed of is, whether the
court was right in holding the witness Newman excused from answer-
ing whose harness he stole on the night when the burglary in question
was committed.
Newman was the confederate of Reed in that burglary, and was the
principal witness on whose testimony the plaintiff in error was con-
victed. On the cross-examination he testified to the commission of
other criminal offenses by him, but when asked in regard to the lar-
ceny of the harness, he claimed his privilege on the ground that his
answer would tend to criminate him, and the court sustained the claim.
In this I perceive no error. When an accomplice is thus placed upon
the stand, and testifies for the government, he cannot shield himself,
on cross-examination, from making a full disclosure of his connection
with the offense which is being investigated ; but his admission of guilt
in that transaction does not oblige him to disclose criminality in other
cases. At any stage in such collateral inquiries he is at liberty to claim
his privilege. No man can be made a witness to testify to his own
crimes except by his own consent; and consent to testify as to one
transaction does not entitle either the government or the defense to
make the examination inquisitorial, and, thereby obtain evidence which
might be used against him in future prosecutions.
I think there was no error in the judgment, and that it should be
affirmed.
The other justices concurred. 30
20 Statement condensed and part of opinion omitted.
so In State v. Foster, 23 N. H. 348, 55 Am. Dec. 191 (1851), where defendant's
clerk testified that defendant did not make the sale in controversy, it was
thought that the witness was* bound to answer on cross-examination as to
other illegal sales made by himself.
Sec. 3) PRIVILEGE 259
SAMUEL v. PEOPLE.
(Supreme Court of Illinois, 1897. 1G4 111. 379, 45 N. E. 728.)
Magruder, C. J. 31 This was a proceeding under an information
by the state's attorney against the defendant, filed in the county court,
on the 14th day of December, 1894, containing six counts, charging
the defendant with gaming, keeping a gaming house, etc. * * *
On the trial of the case, a witness who testified was one Oscar King,
who had previously signed an affidavit upon the back of the informa-
tion to the effect that the allegations therein contained were true.
There was an ordinance in force in the city of Clinton making it a
penal offense for any person to frequent or visit or be found in any
room or house or place used for the purposes of gaming, or to bet on
any such game when played by others. This witness, when placed up-
on the stand, and interrogated by the state's attorney, claimed his
privilege to decline answering each and every question propounded to
him by the state's attorney touching the question of his being in any
gaming house or room or place used for that purpose, or playing at
any game, or giving a description of the room or place wherein any
such gaming occurred, etc., on the ground that the answers which
the truth would compel him to give would tend to criminate himself,
or render him liable to the penalty prescribed by said ordinance. The
court refused to entertain his claim of privilege, and compelled him
to testify to all that he knew concerning said matters, notwithstand-
ing his claim of privilege, upon the ground that, he having voluntarily
and at his own request caused the prosecution to be commenced, his
privilege was waived. * * *
Two questions are presented for our consideration by this record.
1. Where a witness in a criminal prosecution claims his privilege of
refusing to answer a question upon the ground that the answer will
criminate him or expose him to a penal liability, is the court justified
in disallowing such claim, if it appears that the witness has previously
made an affidavit, indorsed upon the back of the information filed by
the district attorney, stating that the matters and things set out in the
information are true? It is contended in this case that the witness
claiming the privilege caused the prosecution to be commenced by his
voluntary act of swearing to the truth of the information, and that
he thereby waived his right to insist upon his 'privilege, when called
upon to testify at the trial subsequently taking place. It is urged in
support of this contention that a man ought not to be permitted to
set the machinery of the law in motion, and then afterwards turn the
prosecution into naught by withholding his evidence. The privilege
in question is a constitutional right, of which the citizen cannot be
deprived by either legislatures or courts. Section 10 of the bill of
si Part of opinion omitted.
260 WITNESSES (Ch. 2
rights says: "No person shall be compelled in any criminal case to
give evidence against himself." 1 Starr & C. Ann. St. p. 104. The
privilege, which a witness has, of refusing to give evidence which
will criminate himself, is granted to him upon grounds of public pol-
icy, and as one of the safeguards of his personal liberty. It cannot
be regarded as released or waived by some disclosure, 32 which he may
have made elsewhere, and under other circumstances. If the an-
swer to a question put to him as a witness upon the stand might tend
to criminate him, it would not tend any the less to do so because he
had elsewhere made a statement having such a tendency. The ques-
tion is not as to what he may have previously said in an affidavit, but
the question is whether the disclosure he is asked to make as a witness
upon the trial of the case will have a tendency to expose him to crim-
inal charge or penalty. We are of the opinion that his constitutional
right in this regard is not abridged or waived by the fact of making
the ex parte affidavit indorsed upon the back of the information filed
by the prosecuting attorney. Minters v. People, 139 111. 363, 29 N.
E. 45; Lamson v. Boyden, 160 111. 613, 43 N. E. 781. Reliance is
placed upon the doctrine, announced in a number of cases, that a
witness who voluntarily and understandingly discloses part of a trans-
action exposing him to a criminal prosecution, without claiming his
privilege, is ordinarily obliged to go forward, and complete the nar-
rative, by stating the whole of the transaction. Whart. Cr. Ev. (9th
Ed.) § 470; 29 Am. & Eng. Enc. Law, p. 844. This doctrine, however,
can have no application here, unless the statements made in the affi-
davit indorsed upon the information and the statements made in the
testimony elicited upon the trial may be regarded as parts of one con-
tinuous account. We do not think, however, that, under the doctrine
thus invoked, the affidavit and the evidence on the trial can be thus
run together, so as to be considered one statement. The doctrine ap-
plies only to a case where the witness, while testifying upon the trial,
states a fact, and afterwards refuses to give the details, or discloses
a part of a transaction in which he was criminally concerned, with-
out claiming his privilege, and then refuses to go forward, and state
the whole ; it does not apply to a case where some admission made
long prior to the trial is sought to be brought forward and joined to
the answers given on the trial. State v. Foster, 23 N. H. 348, 55
Am. Dec. 191 ; People v. Freshour, 55 Cal. 375 ; Town of Norfolk
v. Gaylord, 28 Conn. 309. * * *
2. The next question which the record presents is whether the
plaintiff in error can assign as error that the court below compelled
the witness to testify, notwithstanding his claim of his privilege. It
will be noted that the witness here was not Wilkin Samuel, the party
82 it has been held that no waiver results from the fact that the witness
had previously testified before the grand jury, Temple v. Com., 75 Va. 892
(1881) ; or on a previous trial, Georgia Railroad & Banking Co. v. Lybrend,
99 Ga. 421, 27 S. E. 794 (189€).
Sec. 3) PRIVILEGE 261
indicted, and the present plaintiff in error; but it was Oscar King, a
third person, not connected with the prosecution, or involved in it.
The witness King did not persist in his refusal to testify after the
court decided against him upon the question of his right to claim his
privilege, but, after such decision, he proceeded to answer the ques-
tions addressed to him. He might have refused to answer notwith-
standing the adverse ruling, and might have chosen to submit to pun-
ishment, as for a contempt. There were such refusal and punishment
in the cases of Minters v. People, supra, and Temple v. Com., supra
[75 Va. 892]. "The refusal of a witness to answer any question which
he may be lawfully required to answer is a contempt of court, and,
if he persists in his refusal, he may be punished accordingly." 29
Am. & Eng. Enc. Law, p. 846.
It is not contended that the evidence given by the witness King
was not competent evidence under the issues involved, but it is claimed
that the defendant below is entitled to complain, because King was
compelled to testify, although claiming his privilege. This is a matter
of which the witness 33 alone can complain, and of which the plaintiff
in error can take no advantage, as being error committed against him-
self. The privilege is that of the witness, and not of the party ; and
counsel will not be allowed to make the objection. The privilege
cannot be interposed by either party to the action, nor can either party
raise the objection on behalf of the witness. It must be claimed by the
witness in order to be available, and it lies with him to claim it or
not, as he may choose. As the privilege is personal to the witness,
he may waive it, and elect to testify. Mackin v. People, 115 111. 312,
3 N. E. 222 ; Moline Wagon Co. v. Preston, 35 111. App. 358 ; State
v. Foster, supra; 1 Greenl. Ev. § 451; Whart. Cr. Ev. (9th Ed.) §
465 ; 29 Am. & Eng. Enc. Law, p. 843. This being so, the evidence
is equally good where the witness, instead of giving it voluntarily, is
compelled to give it. * * *
Judgment affirmed. 84
33 Professor Wigmore suggests, apparently, that the same rule ought to ap-
ply where the defendant testifies as a witness. Wigmore. sec. 2270. n. 6. But
it would seem to be an extremely harsh rule which would force the accused
to prejudice his case by persisting in a refusal to answer, thereby subjecting
himself to punishment for contempt, or at least to the most unfavorable in-
ferences. State v. Ober, 52 N. H. 459, 13 Am. Rep. 88 (1S73), in order to pre-
serve the benefit of his privilege.
See State v. Gardner, 88 Minn. 130, 92 N. W. 529 (1902), holding that, where
the defendant was compelled to testify before the grand jury, the indictment
should be quashed.
s* The omitted parts of the opinion contain extensive quotations from Reg.
v. Kinglake, 11 Cox. Cr. Cases 499 (1870); Cloyes v. Thaver, 3 Hill (N. Y.)
564 (1842); and Morgan v. Halberstadt, 60 Fed. 592, 9 C. C. A. 147 (1S94).
262 witnesses (Ch. 2
BURDICK v. UNITED STATES.
(Supreme Court of the United States, 1915. 236 U. S. 79, 35 Sup. Ct. 267,
59 L. Ed. 476.)
Mr. Justice McKknna delivered the opinion of the court.
Error to review a judgment for contempt against Burdick upon
presentment of the Federal grand jury for refusing to answer certain
questions put to him in an investigation then pending before the grand
jury into alleged custom frauds in violation of §§ 37 and 39 of the
Criminal Code of the United States [35 Stat, at L,. 1096, chap. 321,
Comp. St. §§ 10201, 10203].
Burdick first appeared before the grand jury and refused to answer
questions as to the directions he gave and the sources of his informa-
tion concerning certain articles in the New York Tribune regarding the
frauds under investigation. He is the city editor of that paper. He
declined to answer, claiming upon his oath, that his answers might
tend to criminate him. Thereupon he was remanded to appear at a
later day, and upon so appearing he was handed a pardon which he
was told had been obtained for him upon the strength of his testimony
before the other grand jury. [Burdick declined to accept the pardon
and again refused to answer the questions. He was adjudged guilty of
contempt, and committed to the custody of the marshal.]
May plaintiff in error, having the means of immunity at hand, that
is, the pardon of the President, refuse to testify on the ground that his
testimony may have an incriminating effect? A superficial consider-
ation might dictate a negative answer, but the answer would confound
rights which are distinct and independent.
It is to be borne in mind that the power of the President under the
Constitution to grant pardons and the right of a witness must be kept
in accommodation. Both have sanction in the Constitution, and it
should, therefore, be the anxiety of the law to preserve both, — to leave
to each its proper place. In this as in other conflicts between personal
rights and the powers of government, technical — even nice — distinc-
tions are proper to be regarded. Granting, then, that the pardon was
legally issued and was sufficient for immunity, it was Burdick's right
to refuse it, as we have seen ; and it, therefore, not becoming effective,
his right under the Constitution to decline to testify remained to be as-
serted; and the reasons for his action were personal. It is true we
have said (Brown v. Walker, 161 U. S. 601, 605, 40 L. Ed. 822, 824,
5 Interst. Com. R. 369, 16 Sup. Ct. 644) that the law regards only mere
penal consequences, and not "the personal disgrace or opprobrium at-
taching to the exposure" of crime, but certainly such consequence may
influence the assertion or relinquishment of a right. This considera-
tion is not out of place in the case at bar. If it be objected that the
sensitiveness of Burdick was extreme because his refusal to answer
was itself an implication of crime, we answer, not necessarily in fact,
Sec. 3) privilege 2G3
not at all in theory of law. It supposed only a possibility of a charge
of crime, and interposed protection against the charge, and, reaching
beyond it, against furnishing what might be urged or used as evidence
to support it.
This brings us to the differences between legislative immunity 35 and
a pardon. They are substantial. The latter carries an imputation of
guilt; acceptance a confession of it. The former has no such imputa-
tion or confession. It is tantamount to the silence of the witness. It
is noncommittal. It is the unobtrusive act of the law giving protection
against a sinister use of his testimony, not like a pardon, requiring him
to confess his guilt in order to avoid a conviction of it.
It is of little service to assert or deny an analogy between amnesty
and pardon. Mr. Justice Field, in Knote v. United States, 95 U. S.
149, 153, 24 L. Ed. 442, 443, said that "the distinction between them
is one rather of philological interest than of legal importance." This
is so as to their ultimate effect, but there are incidental differences of
importance. They are of different character and have different purpos-
es. The one overlooks offense; the other remits punishment. The
first is usually addressed to crimes against the sovereignty of the
state, to political offenses, forgiveness being deemed more expedient
for the public welfare than prosecution and punishment. The second
condones infractions of the peace of the state. Amnesty is usually
general, addressed to classes or even communities, — a legislative act,
or under legislation, constitutional or statutory, — the act of the su-
preme magistrate. There may or may not be distinct acts of accept-
ance. If other rights are dependent upon it and are asserted, there is
affirmative evidence of acceptance. Examples are afforded in United
States v. Klein, 13 Wall. 128, 20 L. Ed. 519; Armstrong's Foundry, 6
Wall. 766, 18 L. Ed. 882; Carlisle v. United States, 16 Wall. 147, 21
L. Ed. 426. See also Knote v. United States, supra. If there be no
35 The common-law privilege may, of course, be taken away by statute
except where embodied in the Constitution.
Statutes were passed in several of the states requiring the witness to tes-
tify, but providing that his testimony should not be used against him A
similar federal statute was held invalid in Counselman v. Hitchcock 142 C
S. 547, 12 Sup. Ct. 105, 35 L. Ed. 1110 (1802), on the ground that Congress could
not take away the constitutional protection without giving Immunity from
prosecution. The act was accordingly amended and its validity as an immu-
nity statute sustained in Brown v. Walker, 161 U. S. 501, 1G Sup. Ct. 644, 40
L. Ed. 810 (1S96). In this case it was also held that the act was not objection-
able because it might not furnish protection against state prosecution. In
Jack v. Kansas, 190 U. S. 372, 26 Sup. Ct. 73, 50 L, Ed. 234. 4 Ann. (as. 689
(190o), a similar state statute was upheld, though it clearly could not pro-
tect against federal prosecution.
In Heike v. United States, 227 U. S. 131, 33 Sup. Ct. 226. 57 L. Ed. 450
Ann. Cas. 1914C, 12S (1013), it was held that the federal net applied to The
offense under investigation and did not bar a prosecution for sonic other
offense incidentally disclosed. As to such matters it would seem that the
privilege has not been taken away.
It seems that the privilege is taken away when a prosecution is barred by
the statute of limitations. Brown v. Walker, 1G1 O. S. 591, 10 Sun. Ct 644
40 L. Ed. 810 (1896).
264 witnesses (Ch. 2
other rights, its only purpose is to stay the movement of the law. Its
function is exercised when it overlooks the offense and the offender,
leaving both in oblivion.
Judgment reversed, with directions to dismiss the proceedings in
contempt, and discharge Burdick from custody.
Mr. Justice McReynolds took no part in the consideration and de-
cision of this case.
FISHER v. RONALDS.
(Court of Common Pleas, 1852. 12 C. B. 762.)
Assumpsit on a bill of exchange for £245. drawn by one Chappell
upon and excepted by the defendant, and endorsed by Chappell to the
plaintiff.
Plea, amongst others, that the bill declared upon was accepted by
the defendant for the purpose of securing to Chappell, the drawer, a
sum of money won by him of the defendant by gaming, contrary to
the statute; and that the bill was endorsed to the plaintiff with full
knowledge of the circumstances under which it was given.
The cause was tried before Cresswell, J., at the second sitting in
London in this term.
It appeared that the defendant was an officer of the 77th regiment,
stationed at Plymouth; that, during the Plymouth races, in August,
1851, certain persons calling themselves "The Bath and Bristol Club,"
of whom Chappell was one, went down to Plymouth; that a room
was hired for them there at the house of one John Hix, a livery-
stable keeper, where roulette was played, and Ronalds, the defend-
ant, was a considerable loser. The defence attempted to be set up, was,
that the bill in question was given by the defendant for part of the
money so lost by him to Chappell.
To prove this, Hix was called. He said he knew a set of persons
called "The Bath and Bristol Club;" that, in August, 1851, he was
applied to by some officers of the 77th, to let them a room ; that some
of the members of the club, among whom was Chappell, came there;
that he was in the room on the night the money was alleged to have
been lost by the defendant ; that he saw the defendant there ; but that
he saw no gaming. He was then asked, "Was there a' roulette-table
in the room?" Byles, Serjt, for the plaintiff, interposed, and asked
the learned judge to caution the witness, that his answer to that ques-
tion might tend to subject him to a criminal charge under the 8 & 9
Vict. c. 109, ss. 1, 2. The learned judge, after looking at the statute,
told the witness that he was not bound to answer the question, inasmuch
as his answer might have a tendency to involve him in the danger of
being indicted as the keeper of a common gambling-house, or as a con-
spirator to defraud.
Sec. 3) PRIVILEGE 265
The witness accordingly declined to answer the question : and a ver-
dict was found for the plaintiff, for the amount claimed.
Montagu Chambers (with whom was Collier) now moved for a new
trial.
Jervis, C. J. I am of opinion that my Brother Cresswell was quite
right in declining to compel the witness to answer the question. The
tendency of the question was plain: and the learned judge saw that
the witness really believed that his answer to it might tend to crim-
inate him. In Phillipps on Evidence, 10th edit. Vol. II., p. 487, it is
said that a witness is privileged from answering not only what will
criminate him directly, but also whatever has any tendency to crim-
inate him: and the reason given for this decisively disposes of this
case, — "because, otherwise, question might be put after question, and,
though no single question may be asked which directly criminates, yet
enough might be got from him by successive questions, whereon to
found against him a criminal charge." We must, therefore, allow
the witness to judge for himself, or he would be made to criminate
himself entirely. There is, no doubt, at times great difficulty in apply-
ing the rule ; but it is impossible to help that.
MaulE, J. I am of the same opinion. We need not decide upon
the present occasion, that the statement of the witness is conclusive,
though I think the judge is bound by the witness's oath ; otherwise,
you might exhaust all possibilities consistent with a man's innocence,
and so convict him even of murder. The question here put is just one
of the questions which would necessarily have been asked on an in-
dictment against the witness for keeping a gambling-house. I think it
is impossible to put a case of the more proper application of the rule
which protects a witness from criminating himself.
Williams, J. I am of the same opinion. It is unnecessary to de-
termine whether the witness's statement that his answer may tend to
criminate him, is conclusive or not. I think it was abundantly clear
that his answer in this case must have a direct tendency to place the
witness in danger.
Talfourd, J., concurred.
Rule refused. 36
3c During the course of the argument counsel urged that the court should
exercise its discretion as to whether the claim of privilege was well founded:
"At all events the judge is to exercise his discretion as to whether or not
the claim of privilege is well founded. (Maule, J. No; it is the witness who
is to exercise his discretion, not the judge. The witness might be askt-d.
'Were you in London on such a day?' and, though apparently a very simple
question, he might have good reason to object to answer it. knowing that,
if he admitted that he was in London on that day, his admission might com-
plete a chain of evidence against him which would lead to his conviction. It
is impossible that the judge can know anything about that. The privilege
would be worthless, if the witness were required to point out how his answer
would tend to criminate him.)"
In Adams v. Lloyd, 3 H. & N. 351 (1858), Pollock, B., after quoting the above
passage with approval, added: "It is impossible to satisfy the judge without
266 witnesses (Ch. 2
Ex parte GAUSS.
(Supreme Court of Missouri, 1909. 223 Mo. 277, 122 S. W. 741, 135 Am. St.
Rep. 517.)
Gantt, P. J. The petitioner by this proceeding seeks to be dis-
charged from imprisonment and the custody of the jailer of the city
of St. Louis. It appears from the record that the petitioner was com-
mitted for contempt by the circuit court of the city of St. Louis for
refusing to answer certain questions propounded to him by the grand
jury of said city on the 27th day of September, 1909. It appears
that in August, 1909, petitioner was arrested for making a wager on
a horse race, and on September 30, 1909, he was summoned before the
grand jury of the City of St. Louis, and was asked the following
questions : "I want to ask you again, Air. Gauss, on the day that you
were arrested, which was some time in August, this year, had you,
just prior to your arrest, made or placed a bet with Steve Pensa, at
his place of business on Washington avenue, upon the result of a
horse race? Q. Did you ever give Steve Pensa, or any other person
in his place of business, any money to be placed upon a horse race to
exposing the whole matter; and a man may be placed under such circum-
stances with respect to the commission of a crime, that if he disclosed them he
might be fixed upon by his hearers as a guilty person ; so that the rule is not
always the shield of the guilty, it is sometimes the protection of the innocent,
although very likely it was originally introduced from humane motives,
being probably derived from the maxim 'nemo tenetur seipsum accusare.' "
In Reg. v. Boyes, 1 B. & S. 311 (1861), where the point involved was wheth-
er a witness was privileged from answering an incriminating question, after
having accepted a pardon which would not protect him from impeachment
by the House of Commons, Cockburn, C. J., said: "It was also contended that
a bare possibility of legal peril was sufficient to entitle a witness to protec-
tion: nay, further, that the witness was the sole judge as to whether his evi-
dence would bring him into danger of the law: and that the statement of
his belief to that effect, if not manifestly made mala fide, should be received
as conclusive. With the latter of these propositions we are altogether unable
to concur. Upon a review of the authorities, we are clearly of the opinion
that the view of the law propounded by Lord Wensleydale, in Osborn v. The
London Dock Company [10 Exch. 698 (1S55)]. and acted upon by V. C. Stuart,
in Sidebottom v Adkins 13 Jur. (N. S.) 631 (1857)], is the correct one; and that,
to entitle a party called as- a witness to the privilege of silence, the Court
must see. from the "circumstances of the case and the nature of the evidence
which the witness is called to give, that there is reasonable ground to appre-
hend danger to the witness from his being compelled to answer. We indeed
quite agree that, if the fact of the witness being in danger be once made to
appear, great latitude should be allowed to him in judging for himself of the
effect, of any particular question: there being no doubt, as observed by Alder-
son, B., in Osborn v The London Dock Company, that a question which might
appear at first sight a very innocent one, might, by affording a link in a chain
of evidence, become the means of bringing home an offence to the party an-
swering it Subject to this reservation, a judge is in our opinion, bound to in-
sist on a witness answering unless he is satisfied that the answer will tend to
place the witness in peril."
In Ex parte Reynolds, 15 Cox, Crim. Cas. 108 (1S82), the Court of Appeals in
dealing with a claim of privilege evidently made in bad faith, approved the
rule as stated in Reg. v. Boyes.
Sec. 3) privilege 267
be run at any place within the state of Missouri, or without the state?
Q. Have you, at any time within the last three years, made Steve
Pensa the custodian of any bet upon the result of a horse race?"
The petitioner refused to answer these questions because by so doing
he might incriminate himself. Whereupon his refusal was reported
to the judge of division No. 10 of the circuit court of the city of St.
Louis, who ordered him to answer said questions, and upon his refusal
to do so committed him to the jail of the city of St. Louis until such
time as he would answer said questions.
The petitioner insists that he is entitled to be discharged from said
imprisonment, because the effect of the said judgment and order was
to violate section 23 of article 2 of the Constitution of this state (Ann.
St. 1906, p. 158), which provides "that no person shall be compelled to
testify against himself in a criminal cause," and because said commit-
ment is in violation of that part of the fifth amendment of the Con-
stitution of the United States, which says : "Nor shall any person
be compelled in any criminal case to be a witness against himself."
In State v. Young, 119 Mo. 495, loc. cit. 520, 24 S. W. 1038, 1045,
it was said by this court : "The Constitution means more than the
protection of the accused on his final trial when his rights are scrupu-
lously guarded by the courts. It as clearly protects him from being
forced to testify against himself in any and all preliminary investiga-
tion, whether before the coroner, grand jury, or the justice on his
preliminary examination. The immunity afforded him by the Consti-
tution is broad enough to protect him against self-incrimination before
any tribunal in any proceeding." Counselman v. Hitchcock, 142 U. S.
547, 12 Sup. Ct. 195, 35 L. Ed. 1110; Cullen v. Commonwealth, 24
Grat. (Va.) 624; State ex rel. v. Hardware Co., 109 Mo. 118, 18 S.
W. 1125, 15 L. R. A. 676.
Learned counsel for the state insists, however, that it is the province
of the court to judge whether any direct answer to the question that
may be proposed will furnish evidence against the witness. If such
answer may disclose a fact which forms the necessary and essential
link in the chain of testimony, which would be sufficient to convict
him of any crime, he is not bound to answer it, so as to furnish matter
for that conviction ; but if the question propounded does not disclose
upon its face that it will have such tendency, and the witness fails to
clearly show to the court how it will have such effect, he may be pun-
ished for contempt after he refuses to answer after being directed
to do so by the court; and their contention is that the petitioner was
not entitled to invoke the protection of the Constitution against an-
swering these questions for the reason, as they say, that it is not, under
this act of 1907 (page 223) against book making, and pool selling, nor
any other law, made a crime for a person to make or place a bet on
a horse race, or to make any other person the custodian of a bet upon
the result of a horse race. This court, in Ex parte Arnot Carter,
166 Mo, loc. cit. 614, 66 S. W. 544, 57 L. R. A. 654, said: "It is
268 WITNESSES (Ch. 2
reasonable construction of the constitutional provision that the wit-
ness is protected from being compelled to disclose the circumstances of
his offense, or the sources from which evidence of its commission, or
of its connection with it, may be obtained, or make effectual for his
conviction, without using his answers as direct admissions against
him."
Chief Justice Marshall, when engaged in the trial of Aaron Burr
(1 Burr's Trial, 244, 25 Fed. Cas. 40, No. 14,692e), said: "If the
question be of such description that an answer to it may or may not
criminate the witness, according to the purport of that answer, it must
rest with himself, who alone can tell what it would be, to answer the
question or not. If, in such a case, he say, upon his oath, that his
answer would incriminate himself, the court can demand no other tes-
timony of the fact. * * * According to their statement (the coun-
sel for the United States), a witness can never refuse to answer any
question, unless that answer, unconnected with other testimony, would
be sufficient to convict him of crime. This would be rendering the rule
almost perfectly worthless. Many links frequently compose that chain
of testimony which is necessary to convict any individual of a crime.
It appears to the court to be the true sense of the rule that no witness
is compellable to furnish any one of them against himself. It is cer-
tainly not only a possible, but a probable, case that a witness, by dis-
closing a certain fact, may complete the testimony against himself, and
to every effectual purpose accuse himself as entirely as he would by
stating every circumstance which would be required for his conviction.
That fact of itself might be unavailing; but all other facts without it
would be insufficient. While that remains concealed within his own
bosom, he is safe; but draw it from thence, and he is exposed to a
prosecution. The rule which declares that no man is compellable to
accuse himself would most obviously be infringed, by compelling a
witness to disclose a fact of this description. What testimony may be
possessed, or is attainable, against any individual, the court can never
know. It would seem, then, that the court ought never to compel a
witness to give an answer, which would disclose a fact that would
form a necessary and essential part of a crime, which is punishable
by the laws."
Learned counsel for the state seem to conclude that the only possible
prosecution that could grow out of an affirmative answer to the ques-
tions propounded to the petitioner in this case by the grand jury would
be one for betting on a horse race; but the witness did not limit his
reason to any particular offense, but stated that to answer the question
would incriminate him. For aught that the court knew, the state may
have been in possession of sufficient other evidence to have convicted
the petitioner of some other crime if only it could fix upon him that he
was present at Pensa's place at a given time, and then and there
placed a bet with Pensa upon the result of a horse race, or gave Pensa
money at that time to be placed upon a horse race. The meaning of this
Sec. 3) PRIVILEGE 269
constitutional provision has time and again been held not to be mere-
ly a provision that a person shall not be compelled to testify in a then
existing case against himself, but that he shall not be compelled, when
acting as a witness in any investigation, to give testimony which may
tend to show that he himself has committed a crime ; and this court
has approved a doctrine, announced by Chief Justice Marshall, that, if
the question be of such description that an answer to it may or may
not incriminate the witness, it must rest with himself, who alone can
tell what it would be to answer the question or not. And if, in such
case, he say upon his oath that his answer would incriminate himself,
the court can demand no other testimony of the fact.
This rule, we think, is entirely consistent with the doctrine gen-
erally held that where the court can say, as a matter of law, that it is
impossible that a witness would incriminate himself by answering a
question one way or the other, then the court can require an answer ;
but we think the question propounded in this case is not such a ques-
tion, but one which the witness had the right to decline to answer, if,
in his opinion, it would incriminate him. To hold that he must have
explained all of the other testimony in the case, which would be suffi-
cient to convict him, by an answer to this question, would render the
rule entirely worthless.
The language of the court in People v. Mather, 4 Wend. (N. Y.)
252, 21 Am. Dec. 122, is, we think, very persuasive. Said the court :
"When the disclosures he may make can be used against him to
prosecute him for a criminal offense or to charge him with penalties or
forfeitures, he may stop answering before he arrives at the question,
the answer of which may show practically his moral turpitude. The
witness knows what the court does not know, and what he cannot com-
municate without being a self-accuser, and is the judge of the effect
of his answer, and if it proves a link in the chain of testimony, which
is sufficient to convict him, he is protected by law from answering the
question. If there be a series of questions, the answer to all of which
would establish his criminality, the party cannot pick out a particular
one, and say, if that be put, the answer will not criminate him. If
it is one step having a tendency to criminate him, he is not compelled to
answer."
In State ex rel. v. Simmons Hardware Co., 109 Mo. 118, IS S. W.
1125, 15 L. R. A. 676, Judge Barclay, speaking for this court, said:
"It is a reasonable construction of the constitutional provision that the
witness is protected from being compelled to disclose the circum-
stances of his offense, the source from which, or the means by which,
evidence of its commission or of his connection with it may be obtained
or made effectual for his conviction without using his answers as di-
rect testimony against him."
In our opinion, the petitioner having testified that he could not an-
swer the questions without criminating himself, and it not being
entirely plain that his answers might not lead to a prosecution of him-
270 witnesses (Ch. 2
self, we think the circuit court erred in committing him for contempt
in refusing to answer, and he is therefore entitled to be discharged
from his imprisonment, and it is so ordered.
Burgess and Fox, JJ., concur. 37
MASON et al. v. UNITED STATES.
(Supreme Court of the United States, 1917. 214 U. S. 362, 37 Sup. Ct. 621,
61 L. Ed. 119S.)
Mr. Justice McReynolds delivered the opinion of the court.
Plaintiffs in error were separately called to testify before a grand
jury at Nome, Alaska, engaged in investigating a charge of gambling
against six other men. Both were duly sworn. After stating that he
was sitting at a table in the Arctic Billiard Parlors when these men
were there arrested, Mason refused to answer two questions, claim-
ing so to do might tend to incriminate him. (1) "Was there a game
of cards being played on this particular evening at the table at which
you were sitting?" (2) "Was there a game of cards being played at
another table at this time?" Having said that at the specified time
and place he, also, was sitting at a table, Hanson made the same claim
and refused to answer two questions. (1) "If at this time or just
prior to this time that yourself and others were arrested in the Arctic
Billiard Parlors if you saw anyone there playing 'stud poker' or
'pangingi' ?" (2) "If at this same time you saw anyone playing a
game of cards at the table at which you were sitting?"
The foreman of the grand jury promptly reported the foregoing
facts and the judge at once heard the recalcitrant witnesses ; but as
the record contains no detailed statement of what then occurred we
cannot know the exact circumstances. The court, being of opinion
"that each and all of said questions are proper and that the answers
thereto would not tend to incriminate the witnesses," directed them to
return before the grand jury and reply. Appearing there, Mason
again refused to answer the first question propounded to him, but,
half yielding to frustration, said in response to the second, "I don't
know." Hanson refused to answer either question.
A second report was presented by the foreman; the witnesses were
once more brought into court; and after hearing evidence adduced
by both sides and arguments of counsel they were adjudged in con-
tempt. It was further ordered "that they each be fined in the sum
of $100, and that they each be imprisoned until they comply with
the orders of the court by answering the questions." Immediately
following this order they made answers, but these are not set out in
the record. The fines are unpaid ; and we are asked to reverse the
87 But soe Manning v. Morcantile Securities Co., 242 111. 584, 90 N. E. 23S,
30 T,. R. A. (N. S.) 725 (1909).
SCC. 3) PRIVILEGE 271
trial court's action in undertaking to impose them because it con-
flicts with the inhibition of the 5th Amendment that no person "shall
be compelled in any criminal case to be a witness against himself."
During the trial of Aaron Burr and "Re Willie," Fed. Cas. No.
14,692e, the witness was required to answer notwithstanding his re-
fusal upon the ground that he might thereby incriminate himself.
Chief Justice Marshall announced the applicable doctrine as fol-
lows : (j' When two principles come in conflict with each other, the
court must give them both a reasonable construction, so as to pre-
serve them both to a reasonable extent. The principle which en-
titles the United States to the testimony of every citizen, and the
principle by which every witness is privileged not to accuse himself,
can neither of them be entirely disregarded. They are believed both
to be preserved to a reasonable extent, and according to the true in-
tention of the rule and of the exception to that rule, by observing
that course which it is conceived courts have generally observed. It
is this: When a question is propounded, it belongs to the court to
consider and to decide whether any direct answer to it can implicate
the witness. If this be decided in the negative, then he may answer
it without violating the privilege which is secured to him by law. If
a direct answer to it may criminate himself, then he must be the sole
judge what his answer would be."
The constitutional protection against self-incrimination "is confined
to real danger, and does not extend to remote possibilities out of the
ordinary course of law." Heike v. United States, 227 U. S. 131, 144,
57 L. Ed. 450, 455, 33 Sup. Ct. 226, Ann. Cas. 1914C, 12S; Brown
v. Walker, 161 U. S. 591, 599, 600, 40 L. Ed. 819, 821, 822, 5 Interst.
Com. Rep. 369, 16 Sup. Ct. 644.
In Reg. v. Boyes (1861) 1 Best & S. 311, 329, 330, 121 Eng. Reprint,
730, Cockburn, C. J., said:
"It was also contended that a bare possibility of legal peril was
sufficient to entitle a witness to protection; nay, further, that the
witness was the sole judge as to whether his evidence would bring
him into danger of the law ; and that the statement of his belief to
that effect, if not manifestly made mala fide, should be received as
conclusive. With the latter of these propositions we are altogether
unable to concur. * * * To entitle a party called as a witness to
the privilege of silence, the court must see, from the circumstances of
the case and the nature of the evidence which the witness is called
to give, that there is reasonable ground to apprehend danger to the
witness from his being compelled to answer. We indeed quite agree
that, if the fact of the witness being in danger be once made to ap-
pear, great latitude should be allowed to him in judging for himself
of the effect of any particular question. * * * A question which
might appear at first sight a very innocent one might, by affording a
link in a chain of evidence, become the means of bringing home an
offense to the party answering. Subject to this reservation, a judge
272 witnesses (Ch. 2
is, in our opinion, bound to insist on a witness answering unless lie
is satisfied that the answer will tend to place the witness in peril.
"Further than this, we are of opinion that the danger to be appre-
hended must be real and appreciable, with reference to the ordinary
operation of law in the ordinary course of things — not a danger of
an imaginary and unsubstantial character, having reference to some
extraordinary and barely possible contingency, so improbable that ho
reasonable man would suffer it to influence his conduct. We think
that a merely remote and naked possibility, out of the ordinary course
of law and such as no reasonable man would be affected by, should not
be suffered to obstruct the administration of justice. The object of
the law is to afford to a party, called upon to give evidence in a pro-
ceeding inter alios, protection against being brought by means of his
own evidence within the penalties of the law. But it would be to
convert a salutary protection into a means of abuse if it were to be
held that a mere imaginary possibility of danger, however remote and
improbable, was sufficient to justify the withholding of evidence es-
sential to the ends of justice."
The statement of the law in Reg. v. Boyes was expressly approved
by all the judges in Ex parte Reynolds (1882) L. R. 20 Ch. Div. 294,
51 L. J. Ch. N. S. 756, 46 L. T. N. S. 508, 30 Week. Rep. 651, 46
J. P. 533. Similar announcements of it may be found in Ex parte
Irvine (C. C.) 74 Fed. 954, 960; Ward v. State, 2 Mo. 120, 122, 22
Am. Dec. 449; Ex parte Buskett, 106 Mo. 602, 608, 14 L. R. A. 407,
27 Am. St. Rep. 378, 17 S. W. 753.
The general rule under which the trial judge must determine each
claim according to its own particular circumstances, we think, is in-
dicated with adequate certainty in the above-cited opinions. Ordi-
narily, he is in much better position to appreciate the essential facts
than an appellate court can hold, and he must be permitted to exercise
some discretion, fructified by common sense, when dealing with this
necessarily difficult subject. Unless there has been a distinct denial
of a right guaranteed, we ought not to interfere.
In the present case the witnesses certainly were not relieved from
answering merely because they declared that so to do might incrim-
inate them. The wisdom of the rule in this regard is well illustrated
by the enforced answer, "I don't know," given by Mason to the sec-:
ond question, after he had refused to reply under a claim of constitu-
tional privilege.
No suggestion is made that it is criminal in Alaska to sit at a table
where cards are being played, or to join in such game unless played
for something of value. The relevant statutory provision is section
2032, Compiled Laws of Alaska 1913, copied in the margin. 38
8 8"Sec. 2032. That each and every person who shall deal, play, or carry
on, open or cause to be opened, or who shall conduct, either as owner, pro-
prietor or employee, whether for hire or not, any game of faro, monte, roul-
ette, rouge-et-noir, lansquenet rondo, vingt-un, twenty-one, poker, draw poker,
Sec. 3) privilege 273
The court below evidently thought neither witness had reasonable
cause to apprehend danger to himself from a direct answer to any
question propounded, and, in the circumstances disclosed, we cannot
say he reached an erroneous conclusion.
Separate errors are also assigned to the trial court's action in per-
mitting counsel to introduce two documents in evidence; but we think
the points are without substantial merit.
The judgment under review is affirmed.
II. Professional. Confidence
WALDRON v. WARD.
(Court of King's Bench, 1654. Style, 449.)
In a tryal at the Bar between Waldron plaintiff, and Ward de-
fendant, one Mr. Conye a counceller at the Bar was examined upon
his oath to prove the death of Sir Thomas Conye. Whereupon Ser-
jeant Maynard urged to have him examined on the other part, as a
witness in some matters whereof he had been made privy as of
counsel in the cause.
But Roll, Chief Justice, answered : He is not bound to make an-
swer for things which may disclose the secrets of his client's cause,
and thereupon he was f orborn to be examined.
SPARKE v. MIDDLETON.
(Court of King's Bench, 1664. 1 Keb. 505.)
Mr. Aylet having been counsel for the defendant, desired to be
excused to be sworn on the general oath, as witness for the plaintiff,
to give the whole truth, in evidence, which the Court after some
dispute granted ; and that he should only reveal such things as he ei-
ther knew before he was of counsel, or that came to his knowledge
since by other persons, and the particulars to which he was to be
brag, bluff, thaw, craps, or any banking or other game played with cards,
dice, or any other device, whether the same shall be played for money, checks,
credit, or any other representative of value, shall be guilty of a misdemeanor,
and upon conviction thereof shall be punished by a fine of not more than
$500, and shall be imprisoned in the county jail until such line and costs are
paid; Provided, that such person so convicted shall be Imprisoned one day
for every $2 of such fine and costs: And provided further, that such impris-
onment shall not exceed one year."
Hint.Ev— 18
274 witnesses (Ch. 2
sworn were particularly proposed, viz., what he knew concerning a
will in question that Poyns Gorge made ; and the Court only put the
question, whether he knew of his own knowledge. 38
LORD SAY AND SEAL'S CASE.
(Court of Queen's Bench, 1712. 10 Mod. 40.)
Upon a trial at Bar in the Court of King's Bench, in an ejectment
brought by the heirs at law against the Lord Say and Seal, who
claimed as heir in tail; 40
The single question was, whether or no a common recovery that
was suffered in order to dock the intail, was good or not?
The objection to the recovery was, that there was no tenant to the
praecipe.
To prove the recovery good, a deed bearing date the twenty-third
of October, 1701, directing the uses of the recovery, and the fine, viz.
the chirograph of the fine, and common recovery, were produced.
The counsel for the Lord Say and Seal desired to call one Knight,
an attorney at law, to prove, that though the deed was dated the
twenty-third of October, it was not executed until five months after,
viz. in March.
N. B. The attorney was the person intrusted in suffering the
common recovery.
The counsel for the heirs at law opposed the swearing the attorney,
because as an attorney has a privilege not to be examined as to the
secrets of his client's cause, so the attorney's privilege was likewise
the client's privilege; for the client intrusts an attorney with the se-
crets of his cause, upon confidence not only that he will not, but also
that though he would yet he should not, be admitted by the law to
betray his client ; and for this Holbeche's case was relied upon. Be-
sides, it was said that his evidence would tend to accuse himself either
of ignorance, negligence, or something worse ; and in Moore's Reports,
antedating deeds is felony.
The Court were of opinion, that Holbeche's case was good law ;
and that an attorney's privilege was the privilege of his client; and
that an attorney, though he would yet should not be allowed to dis-
ss Prentice, J., in Loomis v. Norman Printers' Supply Co., SI Conn. 343,
71 Atl. 358 (190S): "Counsel for the plaintiff were within their rights in
calling counsel for the defendant as a witness to testify to matters not of a
confidential or privileged character. The impropriety which is recognized in
the conduct of an attorney who volunteers to aid the cause of his client as
a witness in his behalf is one which attaches to himself, and is not present
when he is requisitioned by his adversary. A due recognition, however, of
t the status of an attorney representing his client in the trial of a cause de-
mands that he be not required by adverse counsel to take the witness-
stand unless there be a reasonable necessity for such action."
4° Part of case omitted.
Sec. 3) PRIVILEGE 27."i
cover the secrets of his client But notwithstanding this, they thought
Knight's evidence was to be received ; for that a thing of such a na-
ture as the time of executing a deed could not be called the secret
of his client, that it was a thing he might come to the knowledge
of without his client's acquainting him, and was of that nature, that
an attorney concerned, or anybody else, might inform the Court of.
Knight, being called in, swore, that it being feared the common
recovery would be good for nothing, because it was doubted whether
there was a good tenant to the praecipe, at the time of the common
recovery suffered, it was agreed upon as the best expedient, that there
should be a fine as of Sancti Michaelis levied to make a tenant to
the praecipe, which was five months before the fine was actually
levied; and that there should be a deed, which should declare the
uses of the fine and recovery, and recite the fine to be of Sancti
Michaelis ; and that the deed was executed when the fine was taken,
viz. in March. * * * 41
VAILLANT v. DODEMEAD.
(Court of Chancery, 1743. 2 Atk. 524.)
The bill was to be relieved against a collusive assignment made by
the defendant Dodemead of a lease to one Lascells, a prisoner in the
Fleet, in order to avoid paying a ground rent to the plaintiff ; the de-
fendant Dodemead had examined Mr. Bristow, clerk in court in the
cause, who demurred to the plaintiff's interrogatories on a cross ex-
amination.
The demurrer was, for that he knew nothing of the several mat-
ters inquired of by the interrogatories, besides what came to his
knowledge as clerk in court, or agent for the defendant, in relation
to the matters in question in this cause, and therefore submitted to
the court, whether he should be obliged to answer thereto.
Lord Chancellor. 42 .These demurrers ought to be held to very
strict rules; I am of opinion there are several objections to this de-
murrer, I think it covers too much, and is very loosely drawn, for all
4i See, also, Doe v. Andrews, Cowper. S45 (1778), where the attorney for
the defendant was one of the attesting witnesses to a deed, and was at-
tached for contempt for refusing to testify on behalf of plaintiff as to the
execution of such deed ; Coveney v. Tannahill. 1 Hill (N. Y.) 33, 37 Am. D<
2S7 (1841); Patten v. Moor, 29 N. H. 163 (1854), where the attorney was
present at the execution of an instrument to his client.
The attorney may be compelled to testify as to the contents of a notice
served on him. Spenceley v. Sehulenbundi. 7 East, 357 I or as to
what took place in court on a former trial. Brown v. Foster, 1 B. & X. 736
(1S57) ; or as to the mental or physical condition of his client, Daniel v.
Daniel, 39 Pa. 191 (1861); State v. Fitzgerald, 68 Vt 125, 34 At]. 429 (1896) :
or as to whether a document is in court, Dwver v. Collins, 7 Exch. o
(1S52). post. p. 9!.~.
*- Lord Hardwicke. Part of opinion omitted.
276 WITNESSES (Ch. 2
demurrers of this sort ought to conclude, that he knew nothing but
by the information of his client.
The first objection made against this demurrer is, That it appears
in this case, that the matters inquired after by the plaintiff's interroga-
tories were antecedent transactions to the commencement of the suit,
the knowledge whereof could not come to Mr. Bristow, as clerk in
court, or solicitor.
The second objection, That this is a cross examination, and wher-
ever at law the party calls upon his own attorney for a witness, the
other side may cross-examine him, but that must be only relative
to the same matter, and not as to other points of the cause.
The third objection, That it is too general; for the words are that
he knew nothing but as clerk in court, or agent. 43
Now, the word "agent" is very extensive and uncertain, for no per-
sons are privileged from being examined in such cases, but persons
of the profession, as counsel, solicitor, or attorney, for an agent may
be only a. steward, or servant.
The fourth objection, That one of the interrogatories was an enquiry
concerning the proving of the deed of assignment, which was exhib-
ited; I am of opinion, that he ought to answer to this, though he
should be privileged as to other matters. * * *
POTTER v. INHABITANTS OF WARE.
(Supreme Judicial Court of Massachusetts, 1848. 1 Cush. 519.)
On the trial of this action, which took place in the court of common
pleas, before Wells, C. J., the attorney who made the writ, and who
was also actively engaged in the trial, as one of the counsel for the
plaintiff, and opened the cause to the jury, was called by the plaintiff
as a witness, and was allowed to testify as such, against the objection
of the defendants. The plaintiff having obtained a verdict, the defend-
ants excepted. 44
Metcalf, J. The only question that has been argued in this case
is whether the plaintiff's attorney, who acted as counsel at the trial,
was a competent witness for his client; and we know of no common
law authority for excluding his testimony, besides the two very recent
decisions in the English bail court, which were cited by the counsel
for the defendants. By what authority the judges, sitting in that court,
made those decisions, we do not know ; whether by virtue of the rules
which the judges of the three chief courts of law in England are em-
4 3 It is held that, where one necessarily uses an agent to communicate
with counsel, the party will be protected against disclosure by such agent.
Slate v. Loponio, 85 N. J. Law, 357, 88 Atl. 1045, 49 L. R. A. (N. S.) 1017
(1913).
** Statement condensed.
Set. 3) privilege 277
powered, by recent statutes, to make for the uniform regulation of
practice in all those courts, or by virtue of the superintending control
which those courts exercise over their own officers. See Smith on Ac-
tions at Law, 11, 24. Whatever that authority may have been, we have
no such authority. We cannot exclude a witness by reason of any
views which we may entertain respecting the policy of permitting him
to testify. We can only administer the law as we find it to be. And
by the common law, persons are competent witnesses, unless they are
made incompetent by want of capacity, or of religious faith, by infamy,
or by direct interest in the result of the cause. Witnesses are every
day permitted to testify, whose wishes for the success of the party
who calls them are as strong as those of the party's attorney or coun-
sel. And until the long established rules are changed by legislative
enactment, we cannot exclude a witness merely because his testimony
is to be given in behalf of his client. Whenever, except in the bail
court, attorneys and counsel have been rejected as witnesses, it has been
on the same ground on which others are excluded ; namely, direct in-
terest in the event of the suit, &c. See Chaffee v. Thomas, 7 Cow. (N
Y.) 358; Newman v. Bradley, 1 Dall. 240, 1 L. Ed. 118; Miles v.
O'Hara, 1 Serg. & R. (Pa.) 32; Geisse v. Dobson, 3 Whart. (Pa.) 34;
Slocum v. Newby, 5 N. C. 423 ; Reid v. Colcock, 1 Nott. & McC. (S.
C.) 592, 9 Am. Dec. 729 ; Chadwick v. Upton, 3 Pick. (Mass.) 442 ;
Jones v. Savage, 6 Wend. (N. Y.) 658; Comm'th v. Moore, 5 J. J.
Marsh. (Ky.) 655 ; Brandigee v. Hale, 13 Johns. (N. Y.) 125. In the
present case, the objection to the witness was, not that he was inter-
ested, or that he was in any way incompetent, except as attorney and
counsel for the plaintiff.
In most cases, counsel cannot testify for their clients without sub-
jecting themselves to just reprehension. But there may be cases in
which they can do it, not only without dishonor, but in which it is
their duty to do it. Such cases, however, are rare ; and whenever they
occur, they necessarily cause g~eat pain to counsel of the right spirit.
Exceptions overruled. 45
COBDEN v. KENDRICK.
(Court of King's Bench, 1791. 4 Dura. & E. 431.)
An action had been brought some time before by the present de-
fendant, as indorsee of a promissory note for £150. against the present
plaintiff as the maker; in which cause interlocutory judgment had been
signed, and a writ of inquiry executed ; after which the cause was
compromised by Cobden's paying part, and giving a warrant of attor-
«s But it is regarded as unprofessional for an attorney to testify on behalf
of his client as to disputed facts; if it becomes necessary to use his testi-
mony, he ought to withdraw as attorney. McLaren v. Gillispie, 19 Utah,
137, 56 Pac. GSO (1S99).
278 witnesses (Ch. 2
ney to confess judgment for the residue of the £150. And in the in-
terval between the time when the warrant of attorney was given and
the time when the money became due, according to the defeasance
thereof, Kendrick told Allen, who was his attorney in that suit, that he
was glad it was settled, for that he had only given £10. in cash, and his
promissory note for it, and that he knew it was a lottery transaction.
This action was now brought to recover back the money so paid on
the ground of want of consideration ; and in proof that that was
known to Kendrick at the time he took the note. Allen was called as
a witness at the trial to speak to the conversation above-mentioned,
and he was admitted by Lord Kenyon after argument upon his in-
competency; and a verdict passed for the plaintiff.
Law now renewed his objection, and moved for a new trial; on the
ground that Allen had been improperly permitted to give evidence of
the conversation between him and the defendant, his client ; contend-
ing that Allen fell within the rule of law which prohibited an attorney
from betraying the confidence placed in him by his client, which confi-
dence lasts so long as any proceedings may be had in the cause. Here
the proceedings were not completely at an end when the conversation
was held. The party might still have proceeded to judgment in the
original suit ; and the attorney had still his lien for the costs. So that
the relation of attorney and client in respect of the parties to the origi-
nal suit was not determined at the time when the communication was
made by Kendrick to Allen his attorney.
PER Curiam. The difference is whether the communication were
made by the client to his attorney in confidence as instructions for con-
ducting his cause, or a mere gratis dictum. The former was not the
case here : on the contrary, the purpose in view had been already ob-
tained ; and what was said by the client was in exultation to his at-
torney for having before deceived him as well as his adversary, and
for having obtained his suit.
Rule refused. 46
46 Bell, J., in Moore v. Bray, 10 Pa. 519 (1849): "* * * It seems,
however, to have been thought that, because the facts disclosed, in reference
to the consideration of the assignment of the mortgage, were unessential to
the conduct of the suit, and the communications regarded by the counsel in
the light of casual conversations, they are not entitled to protection. But
this is a mistake. It is true, the rule does not embrace the disclosure of
collateral facts, made during accidental conversations, held irrespective of
the professional character of the recipient. But the circle of protection is
not so narrow as to exclude communications a professional person may deem
unimportant to the controversy, or the briefest and lightest talk the client
may choose to indulge with his legal adviser, provided he regards him as
such, at the moment. To found a distinction on such a ground, would be to
measure the safety of the confiding party by the extent of his intelligence
and knowledge, and to expose to betrayal those very anxieties which prompt
those in difficulty to seek the ear of him in whom they trust, in season and out
of season. The general rule is, that all professional communications are
sacred. If the particular case form an exception, it must be shown by him
who would withdraw the seal of secrecy, and, I think, should be clearly
shown. This has not been done in the present instance."
Sec. 3) privilege 279
WILSON v. RASTALL.
(Court of King's Bench, 1792. 4 Durn. & E. 753.)
This action was brought to recover penalties upon the bribery act,
for bribing voters at the last election for the borough of Newark upon
Trent to vote for one of the candidates. The bribery was charged to
have been committed by the defendant and his agents, among whom
was one W. Handley. At the trial before Thompson, B. at the last
Nottingham assizes W. Handley was called as a witness, who deposed
that previous to the dissolution of parliament in the Spring of 1790
he had received letters at Newark from the defendant in London,
which he had had notice to produce with his subpoena : He had them
not however to produce, but gave this account of them ; that as to
part he had restored them to the defendant before his subpoena ; as
to the rest he had given them to a Mrs. Elizabeth Handley at her de-
sire, with a direction to destroy them after she had read them. That
he had since endeavoured to procure them again for the like purpose
of destroying them, but she had refused to give them up to him
again; and he knew not whether they were destroyed or not. Two
of these letters related to the subject of the election. The witness
was then asked the contents of these letters; but that was objected to,
as Mrs. Handley might be called upon to produce the letters or say
what was become of them; and the objection was allowed. Mr. B.
Handley, an attorney, was then called, who said, that he had the let-
ters in question, which he had received from Mrs. Handley; and that
Mr. W. Handley was at that time under a prosecution for bribery, and
he wished to render him what assistance he could. That Mrs. H.
had desired him to destroy the letters, but he still kept them. That
there was no action now depending against Mr. W. H. but the two
years were not yet expired. The letters were not (that he knew of)
put into his hands with Air. W. H.'s privity; but he had kept them
with his privity and consent. Mr. W. H. had indeed desired him to
destroy them, but he had not done so for the same reason as he had
not complied with the like request from Mrs. H., namely, that he
had soon after the election stated that Mr. W. H. acted only under the
direction of Mr. Rastall in the election business. He further stated
that he was not then concerned in carrying on any suit for W. H. ;
that he never was attorney in any action of indemnity ; that he had
been applied to by Mr. W. H. to be concerned, but had declined it,
giving as a reason that he was under-sheriff and a material witness in
the cause. That he -had not employed W. H.'s attorney for him; but
that W. H. had consulted him in his profession as a confidential per-
son; and had applied to him both before and after he had received
the letters He had desired the witness to consult with his attorney,
which he had done, as well as with W. H. himself. The letters were
communicated to him in consequence of the defendant's consulting
280 WITNESSES (Ch. 2
him professionally. The witness objected to produce the letters; and
the learned judge thought he was not bound so to do. Mr. W. Handley,
being then called up again and asked as to the contents of those letters,
refused to answer the question as tending to criminate himself ; which
objection was allowed by the judge. The plaintiff then went into oth-
er evidence (amongst which was parol evidence of those very letters)
of the acts of bribery, which were strongly proved, and were not
impeached by any contradictory evidence: The jury however found
a verdict for the defendant. And a rule nisi was granted to shew
cause why there should not be a new trial on the ground of mistake
in the judge, in considering that B. Handley was bound by his char-
acter of attorney to withhold the letters required to be produced in
evidence. 47
BullEr, J. This doctrine of privilege was fully discussed in a case
before Lord Hardwicke. The privilege is confined to the cases of
counsel, Solicitor, and Attorney ; but in order to raise the privilege, it
must be proved that the information, which the adverse party wishes
to learn, was communicated to the witness in one of those characters ;
for if he be employed merely as a steward, he may be examined. It is
indeed hard in many cases to compel a friend to disclose a confiden-
tial conversation; and I should be glad if by law such evidence could
be excluded. It is a subject of just indignation where persons are
anxious to reveal what has been communicated to them in a confiden-
tial manner ; and in the case mentioned, where Reynolds who had for-
merly been the attorney of Mr. Petrie, but who was dismissed before
the trial of the cause, wished to give evidence of what he knew rel-
ative to the subject while he was concerned as the attorney, I strongly
animadverted on his conduct and would not suffer him to be ex-
amined: he had acquired his information during the time that he
acted as attorney; and I thought that the privilege of not being ex-
amined to such points was the privilege of the party and not of the
attorney; and that that privilege never ceased at any period of time.
In such a case it is not sufficient to say that the cause is at an end;
the mouth of such a person is shut for ever. I take the distinction
to be now well settled, that the privilege extends to those three enumer-
ated cases at all times, but that it is confined to these cases only. 48
47 Statement condensed and part of opinion of Buller, J., and opinions of
Lord Kenyon, C. J., and Grose, J., are omitted.
48 During the argument Lord Kenyon observed: "In Madam du Barre's
ease, I considered the interpreter as standing in the same situation as the
attorney himself; and I said at the trial, 'That he was the organ of the
attorney.' "
See, also, State v. Loponio, 85 N. J. Law, 357, 88 Atl. 1045, 49 L. R. A.
(N. S.) 1017 (1913), extending the privilege to cover one necessarily employed
to write to the attorney.
In Goddard v. Gardner, 28 Conn. 172 (1859), it was held that where the in-
terview between the attorney and client took place in the presence of the
attorney's son, who had no connection with his father's business, there was
no privilege which would exclude the testimony of the son.
Sec. 3) PRIVILEGE 281
There are cases to which it is much to be lamented that the law of
privilege is not extended ; those in which medical persons are obliged
to disclose the information which they acquire by attending in their
professional characters. This point was very much considered in The
Duchess of Kingston's case, 11 St. Tr. 243, where Sir C. Hawkins,
who had attended the Duchess as a medical person, made the objec-
tion himself, but was over-ruled, and compelled to give evidence
against the prisoner. The question therefore here is, whether B.
Handley were privileged with respect to any person. As to W. Hand-
ley, he certainly was not ; for he said that the witness neither was, nor
could be, his attorney ; because he was at that time acting as under-
sheriff. Neither was he privileged as to this defendant for the same
reason; and though it was said that the defendant (by W. Handley)
consulted him in his profession as a confidential person, the meaning
of that was that as B. Handley was more conversant with business
of this kind than those who were not of his profession, W. Handley
consulted him, but did not employ him as an attorney. But it was
contended, on the part of the plaintiff, that supposing the witness were
privileged in any action in which W. Handley was a party, the priv-
ilege did not extend to this action against Rastall. But to that I can-
not accede; for if he were privileged, so as not to be examined to
particular points in any action against W. Handley, he could not prove
the same facts in an action against any other person. For the nature
of this kind of privilege is that the attorney shall not be permitted to
disclose in any action that which has been confidentially commu-
nicated to him as an attorney. However as B. Handley was neither
the attorney of W. Handley or of the defendant, I am of opinion that
he was improperly prevented from producing the letters in question.
Then as to the other ground: I know of no case, except that of Jer-
vois Q. T. v. Hall, 1 Wils. 17., in which the Court has ever refused to
grant a new trial, which was moved for on account of the mis-direc-
tion or mistake of the judge. * * *
Rule absolute.
CROMACK v. HEATHCOTE.
(Court of Common Pleas, 1820. 2 Brod. & B. 4.)
Trespass against the sheriff for seizing goods under an execution.
The defence set up was, that the goods had been conveyed by the fa-
ther (against whom the execution issued) under a fraudulent assign-
ment to the son. To prove the fraud, the defendant proposed, among
other evidence, to call Smith, an attorney, to whom the father had ap-
plied to draw the assignment, and who had refused to draw it, know-
ing that an execution had been issued against the father. This attorney
was not employed in the cause, and did not draw the assignment.
Richards, C. B., before whom the cause was tried at the last Hert-
282 witnesses (Ch. 2
fordshire assizes, rejected this evidence, on the ground that it was a
confidential communication made to an attorney. The jury found a
verdict for the plaintiff.
Taddy, Serjt., now moved to set aside this verdict and have a new
trial, on the ground (among other objections) that this evidence had
been improperly rejected. He contended, that the rule, as to the ex-
clusion of the evidence of solicitors touching matters on which they
had been consulted, extends only to communications made in the prog-
ress of a cause ; and urged that a solicitor had been examined touch-
ing a dissolution of partnership, and to prove the usurious considera-
tion of a deed he had drawn, Duffin v. Smith, Peake N. P. C. 146:
and that Lord Kenyon seemed to confine the rule to communications
made in the conduct of a cause, Cobden v. Kendrick, 4 T. R. 431. He
cited also Wilson v. Rastall, 4 T. R. 753, and Du Barre v. Livette,
Peake N. P. C. 10S.
Dallas, C. J. The plaintiff came to employ Smith as an attorney,
though Smith happened to refuse the employment. The inquiry made
by Lord Kenyon in Wilson v. Rastall is, whether the party was as he
stated consulted professionally ; and is not this a consulting on profes-
sional business ? One is staggered at first on being told that there are
decided cases which seem at variance with first principles the most
clearly established ; but the cases cited do not at all bear out the prop-
osition contended for, and I know of no such distinction as that aris-
ing from the attorney being employed or not employed in the cause.
To confine ourselves to the present case : here is a client who goes to
give instructions touching a deed, and the communication must be
deemed confidential, as between attorney and client, though the attorney
happens to refuse the employment. I have no manner of doubt on the
subject; and it might be of most mischievous consequence, if, by
granting a rule, we should be supposed to have cast any doubt on it.
Burrough, J. It would be most mischievous if it were once
doubted whether or no a communication such as this were confidential
as between attorney and client.
Richardson, J. Suppose the case of an attorney consulted on the
title to an estate, where there was a defect in the title, can it be con-
tended that he would ever be at liberty to divulge the flaw? I never
heard of the rule being confined to attorneys employed in a cause. I
am of opinion, that the communication in this case was of a nature not
to be divulged by the attorney to whom it was made.
Rule refused. 49
4» And so in Foster v. Hall, 12 Pick. (Mass.) 89, 22 Am. Dec. 400 (1831),
where the authorities are elaborately reviewed.
In Doe v. Watkins, 3 Bingh.. N. C. 421 (1S37), the privilege was recognized
in the case of an attorney who had acted for both the borrower and the
lender.
But where an attorney was consulted by two persons for the purpose of
having mutual wills drawn, the communications for this purpose were not
privileged in an action between the representatives of such persons. Wal-
lace v. Wallace, 216 N* Y..2S, 109 N. E. S72 (1915).
Sec. 3) PRIVILEGE 2&5
REG. v. COX AND RAIL/TON.
(Court of Crown Cases Reserved, 18S4. 15 Cox, Cr. Cas. 611.)
Stephen, T., c0 read the following judgment:
This case was tried before the Recorder of London at the February
sessions of the Central Criminal Court. The defendants were con-
victed subject to a case reserved for our opinion. The case was argued
first before five judges on the 5th day of April, and afterwards, on
account of its great importance, before ten judges on the 21st day
of June. We said on that occasion that we were unanimously of
opinion that the conviction must be confirmed, but we deferred the
statement of our reasons in order that they might be given with due
fullness and deliberation. The facts were as follows: The two de-
fendants, Richard Cobden Cox and Richard Johnson Railton, were
indicted for a conspiracy with intent to defraud Henry Munster.
The indictment was set out as part of the case. It contained six
counts, and was- objected to on grounds which we do not think it
necessary to state, as we are all of opinion that some at least of the
counts were good, and as the objections made to others were not
insisted on in argument. The serious question was as to the admis-
sibility of the evidence of a solicitor, which was given under the fol-
lowing circumstances: On the 9th day of April, 1881, the two de-
fendants entered into a partnership in the business of newspaper
proprietors with respect to a newspaper called the Brightonian. In
February, 1882, Mr. Munster brought an action against Railton for
a libel which appeared in that paper. On the 24th day of June, 1882,
the action ended in a verdict for the plaintiff for 40s. and costs as
between solicitor and client. The costs were taxed on the 18th day
of August, and on the 20th execution was issued against Rail-
ton for the amount. The sheriff was met by a bill of sale from
Railton to Cox, dated the 12th day of August, 1882, and withdrew.
An interpleader action to test the validity of the bill of sale was
tried on the 15th day of January, 1883. At that trial the deed of part-
nership of the 9th day of April, 1881, was produced, bearing upon it
an indorsement purporting to be a memorandum of dissolution of
partnership, dated the 3rd day of January, 1882. The case for
the prosecution was that the bill of sale was a fraudulent bill of
sale of the partnership assets, entered into between Railton and
Cox while they were partners, for the purpose of depriving Mr. Mun-
ster of the fruits of his judgment, and that the memorandum of
dissolution of partnership was indorsed on the deed, not on the 3rd
day of January, 1882, when it bore date, but subsequently to Mr.
Munster's judgment. In order to prove this case, Mr. Goodman,
a solicitor, was called, who said (his evidence having been objected
i0 Statement and part of opinion omitted.
284 WITNESSES (Ch. 2
to, and the objection having been overruled) : "On the 28th day of
June, or thereabouts, Railton and Cox came to me. Railton said,
'I suppose you have heard the result of the Munster case?' I said
'Yes.' He said 'Can anything be done to prevent the property being
-seized under an execution?' I said 'Only a sale to a bona fide pur-
chaser.' He said, 'Could the property be sold and I remain in pos-
session as manager?' I said, 'No; you must go out of possession.*
He said, 'That won't do. Can I give a bill of sale to Mr. Cox?' I
said, 'You cannot, because of the partnership.' Railton said, 'Does
any one know of the partnership besides you and ourselves?' I
said, 'No ; not that I am aware of, only my clerks.' Cox said, 'Then
you do not think a bill of sale will do ?' I said, 'Certainly not.' They
then asked my fee and paid it ; and left the office. Nothing was said
about a dissolution at that interview. The interview was with me as
a solicitor, and I was paid my fee. It was expressly arranged that
the partnership should be kept secret. Nothing either way was said
about a dissolution."
The question for our decision was whether this evidence was
rightly admitted. We must take it after the verdict of the jury, that,
so far as the defendants Railton and Cox were concerned, their
communication with Mr. Goodman was a step preparatory to com-
mission of a criminal offence, namely, a conspiracy to defraud. The
conduct of Mr. Goodman, the solicitor, appears to have been un-
objectionable. He was consulted in the ordinary course of business,
and gave a proper opinion in good faith. The question, therefore, is
whether, if a client applies to a legal adviser for advice intended to
facilitate or to guide the client in the commission of a crime or fraud,
the legal adviser being ignorant of the purpose for which his ad-
vice is wanted, the communication between the two is privileged. We
expressed our opinion at the end of the argument that no such priv-
ilege existed. If it did, the result would be that a man intending
to commit treason or murder might safely take legal advice for
the purpose of enabling himself to do so with impunity, and that
the solicitor to whom the application was made would not be at liberty
to give information against his client for the purpose of frustrating
his criminal purpose.
Consequences so monstrous reduce to an absurdity any principle
or rule in which they are involved. Upon the fullest examination of
the authorities, we believe that they are not warranted by any prin-
ciple or rule of the law of England ; but it must be admitted that the
law upon the subject has never been so distinctly and fully stated as to
show clearly that these consequences do not follow from principles
which do form part of the law, and which it is of the highest im-
portance to maintain in their integrity. We must also observe that de-
cisions have been given — one by the Court of Common Pleas, and
several by single judges sitting in the Crown Courts, or at Nisi Prius
Sec. 3) privilege 285
— which have afforded some countenance to the supposition that the
law of England is committed to doctrines from which these conse-
quences might be deduced. We propose accordingly first to state what,
upon a full consideration of the cases, appears to us to be the prin-
ciple upon which the present case must be decided, and then to ex-
amine the principal cases in which it has-been applied, with the
view of showing that our decision is not inconsistent with the
great majority of them, though it undoubtedly does differ from oth-
ers. * * *
From this examination of the authorities 51 it will be seen that we
differ from one decision of the full Court of Common Pleas, and from
two decisions at Nisi Prius, but we do so on the strength of other
decisions which appear to us not only to be of greater authority, but
also to be more in accordance with legal principles as well as with
justice and expediency. We have one other matter to notice. We were
greatly pressed with the argument that, speaking practically, the ad-
mission of any such exception to the privilege of legal advisers as
that it is not to extend to communications made in furtherance of
any criminal or fraudulent purpose would greatly diminish the value of
that privilege. The privilege must, it was argued, be violated in
order to ascertain whether it exists. The secret must be told in or-
der to see whether it ought to be kept. We were earnestly pressed
to lay down some rule as to the manner in which this consequence
should be avoided.
The only thing which we feel authorised to say upon this matter
is, that in each particular case the court must determine upon the
facts actually given in evidence or proposed to be given in evidence,
whether it seems probable that the accused person may have con-
sulted his legal adviser, not after the commission of the crime for the
legitimate purpose of being defended, but before the commission of the
crime for the purpose of being guided or helped in committing it.
We are far from saying that the question whether the advice was
taken before or after the offence will always be decisive as to the ad-
missibility of such evidence. Courts must in every instance judge
for themselves on the special facts of each case, just as they must
judge whether a witness deserves to be examined on the supposition
that he is hostile, or whether a dying declaration was made in the im-
mediate prospect of death. In this particular case the fact that there
had been a partnership (which was proved on the trial of the inter-
pleader issue), the assertion that it had been dissolved, the fact that
directly after the verdict a solicitor was consulted, and that the exe-
»i The omitted part of the opinion reviews Greenough v. Gaskell, 1 M. &
K. 98 (1833); Follett v. Jefferyes, 1 Sim. N. S. 1 (1850); Russell v. Jackson,
9 Hare, 387 (1851) ; Gartside v. Outram, 26 L. J. Ch. 113 (1850) ; Cromack v.
Heathcote, 2 B. & B. 4 (1820).
2S6 witnesses (Ch. 2
cution creditor was met by a bill of sale which purported to have
been made by the defendant to the man who had been and was said
to have ceased to be his partner, made it probable that the visit to the
solicitor really was intended for the purpose for which, after he had
given his evidence, it turned out to have been intended. If the inter-
view had been for an innocent purpose, the evidence given would have
done the defendants good instead of harm. Of course the power
in question ought to be used with the greatest care not to hamper pris-
oners in making their defence, and not to enable unscrupulous persons
to acquire knowledge to which they have no right, and every precau-
tion should be taken against compelling unnecessary disclosures.
Conviction affirmed. 52
HEMENWAY v. SMITH.
(Supreme Court of Vermont, 1S56. 28 Vt. 701.)
Assumpsit. The declaration contained three counts, the first being
for money had and received by the defendants to the plaintiff's use;
the second for the rent, use, and occupation of the plaintiff's farm,
called the Gould farm ; and the third for money lent to, and paid for
the defendants. Plea, the general issue; trial by jury, January term,
1856, Underwood, J., presiding.
The defendant Orcutt, was a witness on the part of the defendants,
and gave evidence tending to sustain the issue on their part. The plain-
tiff's counsel, upon cross-examination, offered to prove by said Orcutt,
that he consulted counsel soon after the suit was commenced, to ascer-
tain whether they had a defense to said action ; • and, among other
things, that he inquired of said counsel,- whether they had a right to
abandon said contract by its original terms, without any new agree-
ment ; and that, in consulting said counsel, he did not say or pretend to
him that any such agreement had been made. To its admissibility the
defendants objected on the ground that these were privileged com-
munications.
The court overruled the objection, and the testimony was admitted,
to which defendants excepted.
The jury, under these instructions, returned a verdict for the plain-
tiff for the whole amount claimed. Exceptions by the defendants. 53
62 For comments on this class of cases, see Alexander v. U. S., 138 U. S.
353, 11 Sup. Ct. 350, 34 I* Ed. 954 (1S91).
That the privilege does not protect the opinion of counsel obtained to en-
able the client to perpetrate a civil fraud, though the attorney acted inno-
cently, see Williams v. Quebroda Ry. Co., L. R. 2 Ch. (1895) 751, annotated
in Costigan's Cases on Legal Ethics, p. 90.
63 Statement condensed and part of opinion omitted.
Sec. 3) privilege 287
Bennett, J. We think Orcutt, though made a witness by the
statute, cannot be compelled to disclose any consultation which he may
have had with his counsel in relation to the cause.
The rule should be the same as it would have been if the counsel
had been called to prove the consultation. * * *
Judgment reversed. 54
WENTWORTH v. LLOYD et al.
(House of Lords, 1SG4. 10 H. L. Cas. 5S9.)
In this case a suit had been instituted by the appellant to set aside
a sale of certain estates and other property formerly belonging to him
in New South Wales, which sale was made on his behalf by one of
the respondents to the others of them, and the appellant impeached
the fairness of the transaction. The case was heard before the Mas-
ter of the Rolls, who in September, 1863, directed the bill to be dis-
missed. Evidence had been taken in Sydney, and one of the witnesses
was a Mr. Wright, who had acted for some years as the appellant's
solicitor in the colony. Mr. Wright was asked a question, the answer
to which was prevented from being given by an objection founded on
the fact that he had acquired his knowledge through his professional
employment. In commenting upon the case the Master of the Rolls
said, "Mr. Wright is asked this question, 'Did Mr. Wentworth ever
say anything to you on the subject of any of his dealings with Mr.
Mort?' Before the answer was given the plaintiff interposed with this
question, 'Were those communications between me and you profession-
al?' To which Mr. Wright said, 'They were.' And the counsel for
Mr. Lloyd of course did not press his question or obtain any answer.
The plaintiff no doubt had a right to prevent Air. Wright from stating
what the plaintiff had told him about Mr. Mort. It is the client's
privilege to prevent the solicitor from divulging confidential communi-
cations. But if the client chooses to adopt this conduct, he must be
subject to the rule laid down in Armory v. Delamirie, Str. 505, where
the keeping back of evidence must be taken most strongly against the
person who does so. When I say this I wish to distinguish between
the case of the suppression of evidence by a witness, and the case
where he declines to answer the question on the ground that he is not
bound to criminate himself; in which case no presumption of guilt
can be fairly drawn from his refusal to answer, or the privilege would
be at once destroyed. This is no case of crimination. By die terms
of the obligation he is under in this suit he is bound to supply every
species of evidence, written or parol, that he can, and I must treat his
s* The rule in equity was that a defendant was not hound to give d -
er\ as to communications with his counsel. Pearse v. Pearse, 1 De <;. & Sm.
12 (1846); Nias v. Northern & E. Ry. Co., 3 Myl. & Or. 355 (1838); Hughes
v. Biddulph, 4 Russell, 190 (1827).
-S8 WITNESSES (Ch. 2
refusal to allow a witness to answer a question in the same light as if
he had kept a material witness out of the way, or refused or prevent-
ed the production of a document in his possession."
Lord Chelmsford concurred, and with reference to excluding evi-
dence, on the ground that the knowledge of the facts inquired into
had been professionally obtained, said :
The use which the Master of the Rolls made of the exercise of the
plaintiff's right to prevent the disclosure of confidential communica-
tions seems to me so entirely at variance with principle, and so utterly
in contradiction to the well-known and invariably recognized privilege
of professional confidence, that I cannot pass it by in silence; and,
without dwelling upon the contrasted case, I think it would be found
upon examination that the presumptions in the two instances to which
his Honor referred, are exactly the reverse of what he assumed them
to be. I confess that I am unable to conceive the analogy between a
client closing the mouth of his solicitor upon a question as to profes-
sional communications, and the conduct of the jeweller in Armory v.
Delamirie, who, upon a mounted jewel which had been' found being
brought to him, took out the stones and returned the empty socket to
the finder, and not producing the jewel at the trial of the action brought
to recover its value, was made to pay in damages the value of a jewel
of the finest water, which would fit the socket, upon the rule omnia
prsesumuntur contra spoliatorem. But a person who refuses to allow
his solicitor to violate the confidence of the professional relation cannot
be regarded in that odious light. The law has so great a regard to the
preservation of the secrecy of this relation, that even the party himself
cannot be compelled to disclose his own statements made to his solicitor
with reference to professional business.
As Lord Brougham says, when speaking, in Bolton v. The Corpora-
tion of Liverpool, 1 Myl. & K. 94, 95, of the supposed right to compel
the disclosure of such communications : "It is plain that the course of
justice must stop if such a right exists. No man will dare to consult a
professional adviser with a view to his defence, or to the enforce-
ment of his rights." The exclusion of such evidence is for the general
interest of the community, and therefore to say that when a party re-
fuses to permit professional confidence to be broken, everything must
be taken most strongly against him, what is it but to deny him the pro-
tection which, for public purposes, the law affords him, and utterly
to take away a privilege which can thus only be asserted to his preju-
dice. I have been drawn aside from considering the facts of this case
through an apprehension that the authority of the Master of the Rolls
might be hereafter asserted as establishing what appears to me to be a
most serious departure from the principles of the law of evidence ap-
plicable to professional confidence. 65
66 And so in a case where a defendant failed to call his wife as a witness,
under a statute making her competent on behalf of her husband. Knowles
v. People, 15 Mich. 40S (1867) ; Johnson v. State, 63 Miss. 313 (1SS5).
Sec. 3) privilege 289
PRADER v. NATIONAL MASONIC ACCIDENT ASS'N.
(Supreme Court of Iowa, 1895. 95 Iowa, 149, 63 N. W. 601.)
Action in equity to recover on a certificate of membership, and to
compel the levying and collection of an assessment for the payment
of the amount claimed to be due. There was a hearing on the merits,
and a decree for the plaintiff. The defendant appeals.
Robinson, J. 50 * * * The appellant claims that the death of
Prader was due to heart failure, which was the result of chronic al-
coholism, and not to the accident in question. To sustain that claim, it
offers the testimony of Dr. Mirick and Dr. Hunter. The knowledge
of both in regard to the condition and cause of the death of Prader
was acquired chiefly, if not wholly, while they were acting as his physi-
cians. Dr. Mirick had been Prader's family physician for several
years. Dr. Hunter was called to consult with Dr. Mirick a few hours
before Prader's death, and his knowledge of the conditions and cause
of death of Prader was derived from the history of the case as given
him by Dr. Mirick and from a personal examination. The plaintiff
objects to the testimony of these physicians, on the ground that their
knowledge was obtained professionally, for the purpose of properly
discharging their duties in the treatment of Prader, and that it is
therefore privileged and incompetent. Section 3643 of the Code is
as follows : "No practicing * * * physician * * * shall be
allowed in giving testimony to disclose any confidential communica-
tion properly intrusted to him in his professional capacity, and neces-
sary and proper to enable him to discharge the functions of his office
according to the usual course of practice. Such prohibition shall not
apply to cases where the party in whose favor the same are made shall
waive the right conferred." This statute, in its application to verbal
communications made by patients to their physicians, has been consid-
ered in the following cases : Guptill v. Verback, 58 Iowa, 99, 12 N. W.
125; Raymond v. Railway Co., 65 Iowa, 152, 21 N. W. 495; McCon-
nell v. City of Osage, 80 Iowa, 298, 45 N. W. 550, 8 L. R. A. 77S.
As applied to such communications its meaning is clear and settled.
But it is contended by the appellant that it has no application to
knowledge acquired by physicians by a personal examination of their
patients, or from any source other than statements made by them.
The privilege did not exist at common law, but is created by statute
and varies in different states. The general rule is said to be that "the
privilege extends to facts necessary to enable the physician to prescribe,
and which are communicated to him for the purpose of enabling him
to perform his professional duties. Such facts are privileged, whether
learned directly from the patient himself, or acquired by the physician
36 Part of opinion omitted.
Hint.Ev. — 19
290 witnesses (Ch. 2
through his own observation or examination." 19 Am. & Eng. Enc.
Law, 147. By a statute of New York, "any information" which the
physician may have acquired in attending his patient in a professional
character, and which was necessary to enable him to prescribe as a
physician, is privileged. Under that statute, information may be privi-
leged which is derived from the statements of the patient, from the
statements of others about him, or from the observation of his appear-
ance and symptoms. Edington v. Insurance Co., 67 N. Y. 194, Id., 77
N. Y. 568. The same rule is followed under a similar statute in Mis-
souri. Gartside v. Insurance Co., 76 Mo. 446, 43 Am. Rep. 765.
Under a statute of Indiana, physicians are not competent witnesses
"as to matters confided to them in the course of their profession,
* * * unless with the consent of party making confidential com-
munication." This has been held to apply to matters learned by ob-
servation and by examination of patients. Association v. Beck, 77 Ind.
203, 40 Am. Rep. 295. Although the statute of this state uses the word
"communication," it means much the same as the word "information"
in the statutes of other states to which we have referred. The prohi-
bition of our statute refers, not merely to verbal communications, but
to those of any kind by which information of the character of that
specified in the statute is imparted. Information of the actual condition
of a patient may be much more readily communicated to or acquired
by a physician through a personal examination than by statements of
the patient. In many cases exact knowledge can only be obtained by
means of such examination, and it is clear that it is as much to the
interest of the patient to have the information so obtained treated as
confidential as it would be had he known and communicated it verbal-
ly. We conclude that the prohibition of section 3643 is not confined to
verbal communications, but that it extends to facts which are learned
by a physician in the discharge of his duties, from his own observation
and examination of the patient. If the facts thus learned are of a con-
fidential character, and are necessary and proper to enable the physician
to discharge his professional duty to his client, they are protected. So
far as the testimony given by Dr. Mirick is of that character, it cannot
be considered by us, and the same is true of the testimony of Dr.
Hunter. The information he received from his associate was necessary
to enable him to discharge his duty properly, and cannot be used for
any other purpose. It is protected by the statute. When the incompe-
tent testimony is rejected, no evidence remains to sustain the claim
that the death of Prader was caused by chronic alcoholism. * * *
Affirmed. 57
57 In Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S. W. 249 (1908),
it was held that defendant might prove by plaintiffs physician what he no-
ticed as to her physical condition during a nonprofessional call.
Sec. 3) piuvilegb 201
GREEN v. METROPOLITAN ST. RY. CO.
(Court of Appeals of New York, 1902. 171 N. Y. 201, G3 N. E. 958, 89 Am.
St. Rep. 807.)
Gray, J. 58 I think this judgment should be reversed, and that a
new trial should be had, for the error in excluding the testimony of
the witness Moorhead when asked by defendant's counsel to state
"what he [the plaintiff] said, if anything, as to how this accident hap-
pened." Moorhead was a surgeon attached to the J. Hood Wright
Hospital, and was in charge of the ambulance which was summoned
to convey the plaintiff after meeting with his accident. It will be ob-
served that the question called for no information which was ac-
quired by the surgeon to enable him to act as such. It called for evi-
dence merely of what had preceded and had caused the accident, ac-
cording to the plaintiff's knowledge.
Section 834 of the Code of Civil Procedure, whose privilege has been
extended to cover this question, applies, by its language, to cases
where information has been acquired by a physician or a surgeon while
"attending a patient in a professional capacity, and which was nec-
essary to enable him to act in that capacity." We may readily admit
that Dr. Moorhead acquired the information which the question called
for while attending the plaintiff in a professional capacity, and still
we would be far from the point of the legislative purpose in enacting
the section of the Code. That was that the information should be of a
character necessary to enable Dr. Moorhead or the hospital staff to
act professionally upon the case. As it was observed in Edington v.
Insurance Co., 77 N. Y. 564, "it is not sufficient to authorize the ex-
clusion that the physician acquired the information while attending the
patient, but it must be the necessary information mentioned."
The object of the statute, as we are bound to presume, was the ac-
complishment of a just and salutary purpose, which was that the re-
lations between physician and patient should be protected against pub-
lic disclosure, so that the patient might unbosom himself freely to his
medical adviser, and thus receive the full benefit of his professional
skill. Surely it could not have been intended that any truthful version
of a narrative of the events leading to an accidental injury should be
excluded, and that was all this question called for, as it had come from
the sufferer's lips, and when fresh in his recollection. It is rather,
more consonant with the requirements of justice that no witness should
be prevented from giving such evidence. The burden was upon the
plaintiff, in seeking to exclude this evidence of Dr. Moorhead, to bring
the case within the provision of the statute (People v. Koerner, 154
N. Y. 355, 48 N. E. 730), and he did not do so. It was proper to
exclude testimony as to any information acquired which was of a rra-
os Statement and the dissenting opinion of Werner, J., omitted.
292 WITNESSES (Ch. 2
ture to enable a surgeon to treat the plaintiff, but it is unreasonable to
say that information of how the accident happened was such as must
or might have affected the surgical treatment required.
Surely, there must be a line, which reason indicates as that where
the statutory inhibition ceases. The plaintiff lost his leg by being run
over by the car, and the question of defendant's legal liability was a
narrow one, as presented by the trial court, in view of its assumption
that the plaintiff was guilty of contributory negligence; hence all the
light possible to exhibit how the injury was occasioned should have
been permitted upon the case. It seems to me that the exclusion of
this evidence was an application of the Code provision beyond all
legitimate and reasonable limits, and was not in accord with the recent
decision of this court in Griffiths v. Railway Co., 171 N. Y. 106, 63
N. E. 808.
The judgment should be reversed, and a new trial granted, with
costs to abide the event.
MERLE et al. v. MORE. '
(Nisi Prius, 1826. Ryan & M. 390.)
Assumpsit. The act of bankruptcy, relied on by the plaintiffs, was
an assignment by Brookes, by deed, of all his property, which it was
contended was fraudulent. And in order to prove the circumstances
under which the deed was executed, the attorney of Brookes, who
prepared the deed, was called, and asked to a communication made to
him by his client.
On its being objected that the communications spoken to were priv-
ileged, and therefore inadmissible, Wilde, Serjt., proposed that the
bankrupt, who was present, should waive his privilege, and allow the
attorney to give the evidence.
Vaughan, Serjt., resisted this, and argued that this would, in effect,
be making the bankrupt a witness to prove his own bankruptcy, for
which purpose he was by settled rule of law incompetent.
Best, C. J. I think the privilege is the privilege of the client, and
he may waive it. If the bankrupt is present, and consents to the wit-
ness giving the evidence, I shall receive it.
This was then done by the bankrupt, and the plaintiffs obtained
a verdict.
Sec. 3) privilege 293
MARSTON v. DOWNES et ux.
(Court of King's Bench, 1834. 1 Adol. & E. 31.)
Assumpsit. Plea, plene administravit. Replication of assets in
hand. Issue joined thereon. At the trial before Patteson, J., at the
last Spring assizes at Shrewsbury, the plaintiff proved a prima facie
case of assets in the hands of the defendants. The defendants, in
answer, showed payments made by them to the amount of the assets
proved. In answer to this, the plaintiff called a witness, who was an
attorney, and who swore to having paid to Downes the husband, after
the death of the testator, a large sum of money (not included in the
assets) which had been made on a mortgage made to the client of the
witness. The witness brought the mortgage deed into Court, under a
subpoena duces tecum, but refused to produce it. He was then ques-
tioned as to its contents, upon which the defendant's counsel ob-
jected that parol evidence could not be given of the deed. The learned
Judge ruled, that the parol evidence was admissible. Upon which the
witness himself asked, whether he ought to state the contents of the
deed? His Lordship answered, that he thought he ought to do so.
The witness then stated, that the deed was a mortgage of some real
property of the testator. The mortgage was executed by the husband
Downes, who was entitled to do so by another deed, giving him power
to raise money by sale or mortgage, and apply the money so raised to
the payment of the testator's debts. 59
Lord Denman, C. J., on a subsequent day delivered the judgment
of the Court. We are of opinion, first, that the evidence was admis-
sible for the purpose for which it was produced ; and, secondly, that,
whether or not the privilege of the mortgagee extended to protect
him from the attorney's giving parol evidence of the contents of the
deed, still the evidence having actually gone before the jury, the de-
fendants were not a privileged party; and they, therefore, had no
right of objection, even on the supposition that the learned Judge had
done wrong.
Rule refused. 60
6o Statement condensed.
so Beardsley, J., in State v. Barrows, 52 Conn. 323 (1SS4): "The state also
claims that if the court erred in admitting the question referred to, it was
an error which does not entitle the accused to a new trial, hecause the right
of Mrs. Eaton only, and not that of the accused, was violated by the evidence
of Mr. Jones. But the rule which holds communications by client to counsel
privileged from disclosure, is one of public policy, in the interests of justice,
and to maintain its administration. Goddard v. Gardner. 2S Conn. 172 (1859);
Barnes v. Harris, 7 Cush. (Mass.) 576 [54 Am. Dec. 734 (1851)]. In the case
of Bacon v. Frisbie, 80 N. Y. 394 [36 Am. Bep. 627 (188Q)], in which an at-
tempt was made to prove the statements of Ratnour, a codefendant with Fris-
bie, by his attorney to whom he made them, the court, rejecting the evidence.
say (80 N. Y. 401): 'Had Ratnour not been a party to the action and so had
no right to be at the trial and object, yet the objection would lie in the
mouth of Frisbie, who by it would but call upon the court to keep untouched
294 WITNESSES (Ch. 2
PIERSON v. PEOPLE.
(Court of Appeals of New York, 1880. 79 N. Y. 424, 35 Am. Rep. 524.)
Earl, J. 61 William Pierson, the prisoner, was indicted in Living-
ston county for murder, in causing the death by poison of Leaman B.
Withey, in February, 1877. He was tried in the Oyer and Terminer
of that county in February, 1878, and was convicted and sentenced to
be hung. His conviction was affirmed at the General Term of the Su-
preme Court. He has now brought his case into this court by writ of
error, and seeks to have his conviction reversed for several errors
which have been ably presented for our consideration by his coun-
sel. * * *
While Withey was sick, suffering from the poison which is sup-
posed to have been administered to him, Dr. Coe, a practicing physi-
cian, was called to see him by the prisoner ; and he examined him and
prescribed for him. On the trial, he was called as a witness for the
people, and this question was put to him: "State the condition in
which you found him at that time, both from your own observation
and from what he told you?" The prisoner's counsel objected to this
question on the ground that the information which the witness ob-
tained was obtained as a physician, and that he had no right to disclose
it ; that the evidence offered was prohibited by the statute. The court
overruled the objection, and the witness answered, stating the symp-
toms and condition of Withey, as he found them from an examination
then openly made in the presence of Withey's wife and the prisoner,
and as he also learned them from Withey, his wife, and the prisoner.
There was nothing of a confidential nature in any thing he learned or
that was disclosed to him. The symptoms and condition were such as
might be expected to be present in a case of arsenical poisoning. It is
now claimed that the court erred in allowing this evidence, and the
statute (section 834 of the Code) is invoked to uphold the claim. That
section is as follows : "A person duly authorized to practice physic or
surgery shall not be allowed to disclose any information which he ac-
quired in attending a patient in a professional capacity, and which was
necessary to enable him to act in that capacity." This provision of the
Code is a substantial reenactment of a provision contained in the Re-
vised Statutes. 2 R. S. 406. Such evidence was not prohibited at com-
mon law. The design of the provision was to place the information of
a rule of public policy made and to be kept, not especially for bis good but for
that of all men.' There was error in the admission of the evidence and a
new trial is granted."
See, also, Westover v. Life Ins. Co., 90 N. Y. 56, 1 N. E. 104, 52 Am. Rep.
1 (1885), reversing for the admission of a physician's testimony, under a stat-
ute making a physician incompetent without an express waiver by the patient,
though the party to the action who objected was not tho patient and did not
represent him; and so in Myer's Will, 1S4 N. X. 54, 76 N. E. 920, 6 Ann. Cas.
26 (1006).
«i Part of opinion omitted.
Sec. 3) PRIVILEGE 295
the physician obtained from his patient in a professional way, substan-
tially on the same footing with the information obtained by an attorney
professionally of his client's affairs. The purpose was to enable a
patient to make such disclosures to his physician as to his ailments,
under the seal of confidence, as would enable the physician intelligently
to prescribe for him; to invite confidence between physician and pa-
tient, and to prevent a breach thereof. Edington v. Mut. L. Ins. Co.,
67 N. Y. 185 ; Edington v. iEtna Life Ins. Co., 77 N. Y. 564.
There has been considerable difficulty in construing this statute, and
yet it has not been under consideration in many reported cases. It was
more fully considered in the Edington case than in any other or all
others. It may be so literally construed as to work great mischief, and
yet its scope may be so limited by the courts as to subserve the bene-
ficial ends designed without blocking the way of justice. It could notl
have been designed to shut out such evidence as was here received,
and thus to protect the murderer rather than to shield the memory of
his victim. If the construction of the statute contended for by the
prisoner's counsel must prevail it will be extremely difficult if not im-
possible in most cases of murder by poisoning to convict the murderer.
Undoubtedly such evidence has been generally received in this class of
cases, and it has not been understood among lawyers and judges to be
within the prohibition of the statute.
How then must this statute be construed? The office of construc-
tion is to get a meaning out of the language used if possible. If the
words used are clear and unmistakable in their meaning, and their
force cannot be limited by a consideration of the whole scope of the
statute or the manifest purpose of the Legislature, they must have full
effect. But in endeavoring to understand the meaning of words used,
much aid is received from a consideration of the mischief to be reme-
died or object to be gained by the statute. By such consideration
words otherwise far-reaching in their scope may be limited. Statutes
are always to be so construed if they can be, that they may have rea-
sonable effect agreeably to the intent of the Legislature ; and it is al-
ways to be presumed that the Legislature has intended the most rea-
sonable and beneficial construction of its acts. Such construction of a
statute should be adopted as appears most reasonable and best suited
to accomplish the objects of the statute ; and where any particular con-
struction would lead to an absurd consequence, it will be presumed that
some exception or qualification was intended by the Legislature to
avoid such consequence. A construction which will be necessarily pro-
ductive of practical inconvenience to the community is to be rejected,
unless the language of the law-giver is so plain as not to admit of a dif-
ferent construction. Potter Dwarr. Stat. 202.
The plain purpose of this statute as in substance before stated was
to enable a patient to make known his condition to his physician with-
out the danger of any disclosure by him which would annoy the feel-
ings, damage the character, or impair the standing of the patient
296 witnesses (Ch. 2
while living, or disgrace his memory when dead. It could have no
other purpose. But we do not think it expedient at this time to en-
deavor to lay down any general rule applicable to all cases, limiting the
apparent scope of this statute. We are quite satisfied with the reason-
ing upon it of Judge Talcott in his able opinion delivered at the Gen-
eral Term of the Supreme Court, and we agree with him "that the pur-
pose for which the aid of this statute is invoked, in this case, is so
utterly foreign to the purposes and objects of the act, and so diametri-
cally opposed to any intention which the Legislature can be supposed to
have had in the enactment, so contrary to and inconsistent with its spir-
it, which most clearly intended to protect the patient and not to shield
one who is charged with his murder, that in such a case the statute is
not to be so construed as to be used as a weapon of defense to the party
so charged, instead of a protection to his victim." This objection was
therefore not well taken. * * * Judgment affirmed. 62
BLACKBURN v. CRAWFORD.
(Supreme Court of the United States, 1S65. 3 Wall. 175, 18 L. Ed. 186.)
Dr. Crawford, of Prince George's County, Maryland, died intestate,
in December, 1859, the proprietor of large landed estates there ; Green-
wood Park, Waring's Grove, Federal Hill, Westphalia, Ranleigh, etc.
He left no wife, nor child, nor brother nor sister surviving him.
Claimants to such estates, however, were not long wanting. On the
one hand were relatives of the name of Blackburn, confessedly his
cousins-german ; on the other, persons bearing his own respectable
Scottish name of Crawford : George Thomas Crawford, Mary Eliza-
beth Crawford, Sarah Jane Crawford, and Anna Victoria Crawford,
the children of a brother, Mr. Thomas B. Crawford, who had died be-
fore him. The title of these children — as nephews and nieces, and
nearer of course than cousins — was clear, but for a single difficulty ;
the fact that their legitimacy was called in question. It was asserted
that their mother had been the mistress not the wife of their father.
So, too, a solemn act of Mr. Crawford himself, and his directions
when performing it, tended to the conclusion of no marriage. In June
1844, being desirous to make his will, he called on his friend and gen-
eral professional adviser, Mr. Bowie, of Baltimore, to prepare a draft
of it for him. On that occasion, as it appeared at a later day, and
from Mr. Bowie's own narrative, he had a conversation with that gen-
tleman as to the best mode of securing his property to his children ;
ea Compare People v. Murphy, 103 N. V. 120, 4 N. B. 326, 64 Am. Rep. 661
(1886), to Hie effect that, in a prosecution Cor producing an abortion, it was
• ■rinr \t> admit tin- testimony of a physician Who treated the womau imme-
diately afterwards.
Sec. 3) privilege 297
asking Mr. Bowie's advice in the matter. Upon this, Mr. Bowie ad-
vised him to make a will, and so to provide for the children. In ac-
cordance with this advice, Mr. Crawford directed Mr. Bowie to pre-
pare the draft of a will, which he (Mr. Bowie) accordingly then did,
agreeably to Mr. Crawford's instructions. Mr. Crawford especially
instructed Mr. Bowie to describe the children, in this will, as his natural
children by Elizabeth Taylor; and in consequence of this express di-
rection the children were so described in the will, which was on
record in the proper office in Prince George's County.
The defendant gave in evidence the will of Mr. Crawford, and prov-
ed by Mr. Bowie that it was drawn in conformity to the instructions
of the testator. It spoke, as we have already said, of the defendants in
error as his natural children by Elizabeth Taylor, and provided for them
accordingly. It spoke of her as probably enceinte at that time, and
provided for the unborn child. The defendant then offered to prove,
by Mr. Bowie, what was said by the testator in their interviews pre-
ceding the preparation of the will concerning the illegitimacy of the
children and his relation to their mother. The court excluded the evi-
dence. 63
Mr. Justice SwaynE delivered the opinion of the court.
We will consider the exceptions, so far as we deem necessary —
both as respects the testimony and the instructions — in the order in
which they are presented by the record. * * *
The 'fifth point raised related to Mr. Bowie. Was the testimony of
this gentleman — the attorney who drew the will of Mr. Crawford,
and by whom the plaintiff in error offered to prove what was said by
the testator in their interviews preceding the preparation of the will,
and, in that connection, concerning the illegitimacy of the children and
his relation to their mother — rightly excluded ?
It is asserted that the communications upon these subjects to the at-
torney were covered by the seal of professional confidence, and that he
could not, therefore, be permitted to disclose them.
The principle of privileged communications was abrv considered by
Lord Brougham in Greenough v. Gaskel, 1 M. & K. 98. He said:
"The foundation of the rule is not difficult to discover. It is not (as
has sometimes been said) on account of any particular importance
which the law attributes to the business of legal professors, or any par-
ticular disposition to afford them protection, though certainly it may
not be very easy to discover why a like privilege has been refused to
others, and especially to medical advisers. But it is out of regard to
the interests of justice, which cannot be upholden, and to the adminis-
tration of justice, which cannot go on, without the aid of men skilled
in jurisprudence— in the practice of courts— and in those matters af-
fecting the rights and obligations which form the subject of all judicial
proceedings. If the privilege did not exist at ail, every one would
«3 Statement condensed and part of opinion omitted.
298 witnesses (Ch. 2
be thrown upon his own legal resources. Deprived of all professional
assistance, a man would not venture to consult any skillful person, or
would only dare to tell the counsel half his case."
In Russel v. Jackson, 15 Jurist, 1, 117, the contest was between the
heirs-at-law and a devisee. The heirs claimed that the devise was
upon a trust, unexpressed, because illegal. The question was, whether
the solicitor by whom the will was drawn should be allowed to testify
what was said by the testator contemporaneously upon the subject?
The devisee claimed the benefit of the rule. The Vice-Chancellor said :
"When we pass from cases of conflict between the rights of a client and
parties claiming under him — and those of third persons — to cases of a
testamentary disposition of a client, do the same reasons apply? The
disclosure in such cases can affect no right or interest of the client ; and
the apprehension of it can present no impediment to a full statement
to the solicitor, unless he were contemplating an illegal disposition — a
case to which I shall presently refer; and the disclosure would, when
made, expose the court to no greater difficulty than it has in all cases
when the views and intentions of parties, or the objects for which the
disposition is made, are unknown. In the case, then, of a testamen-
tary disposition, the very foundations on which the rule proceeds seem
to be wanting; and, in the absence of any illegal purpose entertained
by the testator, there does not seem to be any ground for applying
the rule in such a case. Can it be said, then, that the communication
is protected because it may lead to the disclosure of an illegal purpose?
I think not ; and that evidence, otherwise admissible, cannot be re-
jected upon such grounds. Another view of the case is, that the pro-
tection which the rule gives, is the protection of the client ; and it can-
not be said to be for the protection of the client that evidence should
be rejected — the effect of which would be to prove a trust created by
him, and to destroy a claim to take beneficially by the parties accepting
the trust." 64
This reasoning applied to the declarations of the testator here in
question. How can it be said to be for his interest to exclude any tes-
timony in support of what he solemnly proclaimed and put on record
by his will ? Especially can this be said in regard to property to which
he never had or assumed to have any title, and in regard to a claim
by others to that property, which he did all in his power, by his will,
to foreclose?
«« And so In a will contest the privilege (loos not apply to the attorney
who drew the will. Doherty v. O'Callaghan, 157 Mass. 90, 81 N. K. 726, 17
L. K. A. iss, :;i Am. St. Rep. 268 (1892k And so in the case of the testator's
physician In will contests. Winters v. Winters, 102 Iowa, 53, 71 N. W. 1S4.
63 Am. st. Hep. 428 (1897); Thompson v. Ish, 99 Mo. 1G0, 12 S. W. 510, 17
Am. St Rep. 552 (1889).
The contrary resull waa reached at one time in New York under a statute
making the physician Incompetenl without an express waiver by the patient.
Renlhan v. Dennln, 103 N. V. 577, 9 N. B. 320, 57 Am. Rep. 770 (1880); Iu re
Coleman, ill N. v. 220, 19 x. E. 71 (1888).
Sec. 3) privilege 299
But there is another ground on which we prefer to place our decision.
The client may waive the protection of the rule. The waiver may be
express or implied. We think it as effectual here by implication as
the most explicit language could have made it. It could have been no
clearer if the client had expressly enjoined it upon the attorney to give
this testimony whenever the truth of his testamentary declaration
should be challenged by any of those to whom it related. A different
result would involve a perversion of the rule, inconsistent with its ob-
ject, and in direct conflict with the reasons upon which it is found-
ed. * * *
Judgment reversed.
HUNT v. BLACKBURN.
(Supreme Court of the United States, 1888. 128 U. S. 464. 9 Sup. Ct. 125,
32 L. Ed. 4SS.)
Hunt filed his bill in equity in the district court for the Eastern dis-
trict of Arkansas, on the 25th of June, 1881, against Sallie S. Black-
burn, Charles B. Blackburn, and W. P. Smith, claiming as a pur-
chaser for value, with the knowledge and assent of Sallie S. Black-
burn, of an undivided half of a plantation in Desha county, Ark., of
which the defendant Sallie S. Blackburn owned the other half, and
deraigning title by sundry mesne conveyances from one Shepard to W.
A. Buck, whose wife said Sallie S. then was, by Buck and wife to
Drake, Drake to Winfrey, who, as Hunt alleged, purchased for value
with Mrs. Buck's knowledge and assent, Winfrey's assignee to
Weatherf ord, and Weatherf ord to himself ; setting up certain decrees
hereinafter mentioned, and praying, after averments appropriate to
such relief, that his title be quieted, and for partition. Defendant
Sallie S. Blackburn answered April 25, 1883, asserting sole ownership
of the lands under a deed from Shepard to W. A. Buck, her then hus-
band, and herself, and charging, in respect to the decrees upon the ti-
tle, that she was misled by her attorney and confidential adviser,
Weatherford, as to her rights, and was not estopped thereby or by
any conduct of hers, in faith of which either Winfrey or Hunt acted
in purchasing. The cause was heard and the bill dismissed March 10,
1884, and from that decree this appeal is prosecuted. 65
Mr. Chief Justice Fuller. * * * Defendant Blackburn insists,
however, in her answer, that the part she took in the litigation of these
two cases was the result of misplaced confidence in her counsel, by
whom she alleges she was deceived, misadvised, and misled; that
she was ignorant of her rights ; and that she ought not to be held es-
topped in the premises; while at the same time it is objected on her
behalf that her attorney, on the ground of privileged communications,
6° Statement condensed and part of opinion omitted.
300 WITNESSES (Ch. 2
should not be permitted to defend himself by testifying to the facts
and circumstances under which he advised her, and the advice which
he actually gave.
The rule which places the seal of secrecy upon communications be-
tween client and attorney is founded upon the necessity, in the interest
and administration of justice, of the aid of persons having knowledge
of the law and skilled in its practice, which assistance can only be
safely and readily availed of when free from the consequences or the
apprehension of disclosure. But the privilege is that of the client
alone, and no rule prohibits the latter from divulging his own secrets.
And if the client has voluntarily waived the privilege, it cannot be
insisted on to close the mouth of the attorney. When Mrs. Black-
burn entered upon a line of defense which involved what transpired
between herself and Mr. Weatherford, and respecting which she tes-
tified, she waived her right to object to his giving his own account of
the matter. As, for instance, when she says that the original deed
from Shepard was drawn by Weatherford, that she has not got it, and
that she thinks she gave it to him, it is clear that her letter of July 6,
1875, calling for that deed, and Weatherford's reply of July 14th, in-
closing it, are admissible in evidence. * * *
Reversed. 68
«e For a similar rule in the case of a physician, see Epstein v. Pennsyl-
vania R. Co., 250 Mo. 1, 156 S. W. 699, 48 L. R, A. (N. S.) 394, Ann. Cas.
1915A, 423 (1913), where a large number of cases are reviewed.
But the patient does not waive the privilege as to his physician by intro-
' ducing other evidence of his injuries, etc. Arizona & N. M. R. Co. v. Clark,
235 U. S. 669, 35 Sup. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834 (1915).
, In an action against a physician for malpractice, there is a waiver as to
i all the phvsicians who treated the plaintiff. Capron v. Douglass, 193 N. Y.
1 11, S5 N. E. S27, 20 L. R. A. (N. S.) 1003 (1908).
Sec. 4) EXAMINATION OF WITNESSES 301
SECTION 4.— EXAMINATION OF WITNESSES
I. Offers of Evidence and Objections 8T
TURNER et al. v. PEARTE.
(Court of King's Bench, 17S7. 1 Durn. & E. 717.)
On a rule nisi for a new trial on affidavits to the effect that it had
been discovered that five of the witnesses for the defendant were in-
competent because of interest. 68
BullFR, J. There has been no instance of this court's granting a
new trial on an allegation that some of the witnesses examined were in-
terested; and I should be very sorry to make the first precedent. An-
i
btAs to the order in which evidence shall be offered, see Braydon v. Goul-
man, 1 T. B. Mon. (Ky.) 115 (1824), in which the following rules were stated
by Mills, J.:
"(1) As to the admission of new witnesses after the parties professed to
have gone through their evidence, it may be readily conceded, that it was
against the strict practice which ought generally to be adhered to in con-
ducting causes.
"He who has the affirmative, ought to introduce all his evidence to make
out his side of the issue, then the evidence of the negative side is heard, and
finally the rebutting proof of the affirmative, which closes the investigation,
after giving each a fair opportunity to be thus heard. In doing this, neither
side ought to be permitted to give evidence by piecemeal, then to apply for
instructions, and again to mend and add to his proof, until, by repeated ex-
periments, he shall make it come up to the opinion of the court.
"An adherence to these rules generally will be found necessary in all courts
of original jurisdiction, and without them confusion, loss of time, and cap-
tious and irritable conduct must follow.
"(2) We say, generally, for it will often be found necessary and proper
for the presiding court, for good reasons, to depart from them, to attain
complete justice; and when they ought or ought not to be varied, must, in a
great measure, be left to the sound discretion and prudence of the inferior
court. And this court for such departure, ought never to interfere, except
injustice is done by that departure.
"(3) The evidence admitted in this instance was pertinent. It is not ob-
jected to, because from its nature it ought not to be heard; but because it
was heard at an improper time. In such a case, we ought not, and cannot,
give any redress. We ought not, because the evidence has not done injustice,
and that court had the disposition of its own time, and might or might not
hear it, as time and other good reasons might require. We cannot, because
if we were to reverse on that account, it would only open the way to admit
the same evidence in a time and manner which could not be objected to, and
the party who now complains has received no injury which ought to be re-
dressed, and he would again have to submit to the same evidence."
In will contests, however, the practice in a number of states permits the
proponent, after making out a prima facie case by the attesting witnesses, to
reserve the balance of his evidence of capacity until after the contestant's
evidence has been introduced. Hall v. Hall, 153 Ky. 379, 155 S. W. 755 (1913) ;
Taff v. Hosmer, 14 Mich. 309 (1866) good explanation by Cooley, J.; Lareau
68 Statement condensed and concurring opinion of Ashhurst, J., omitted.
. o ,02 WITNESSES (Ch. 2
ciently no doubt the rule was, that if there were any objection to the
competency of the witness, he should be examined on the voir dire ;
and it was too late after he was sworn in chief. In later times, that
rule has been a little relaxed ; but the reason of doing so must be re-
membered. It is not that the rule is done away, or that it lets in ob-
jections which would otherwise have been shut out. It has been done
principally for the convenience of the court, and it is for the further-
ance of justice. The examination of a witness, to discover whether
he is interested or not, is frequently to the same effect as his examina-
tion in chief : So that it saves time, and is more convenient, to let him
be sworn in chief in the first instance ; and in case it should turn out
that he is interested, it is then time enough to take the objection. But
there never yet has been a case in which the party has been permitted
after trial to avail himself of any objection, which was not made at
the time of the examination. But in the present case there is not the
least foundation for this court to interpose ; for it cannot be said that
the witnesses were swayed by this interest in the least degree. I do
not say that it might not have been a ground to object to their testi-
mony on the trial, supposing the whole of what was suggested by the
plaintiff was true : but it would have been necessary to have determined
another question first, whether the houses in respect of which the wit-
nesses are supposed to be interested were really houses formerly be-
longing to the knights of St. John of Jerusalem, before any decision
could have been made on their competency ; but at any rate we will not
permit them to make the objection now. Where it appears that one
or more material witnesses who were examined on a trial were inter-
ested, it may afterwards weigh with the court as a circumstance for
granting a new trial, provided the merits of the case are doubtful ; but
as a substantive objection, I am clearly of opinion that it ought not
to be allowed.
Grose, J. As to the competency of the witnesses, it is not con-
tended that in point of law we are bound to reject their testimony now.
This then is an application to our discretion; and the question is,
Whether that should induce us to reject their evidence after verdict.
If this objection had been made before me at the trial, perhaps I might
have admitted it ; but then, by the rule of law, objections of this nature
must be made at the trial. And if the plaintiff will insist upon the strict
rule relative to the incompetency of witnesses, the defendant has an
equal right to avail himself of the rule that the objection now comes too
late. Formerly the rule was to examine on the voir dire ; that indeed
has been relaxed. But this application requires us to go farther; and
v. Lareau (Mo.) 208 B. W. 241 (1918); In re Gedney's Will (Sur.) 142 N. Y.
Bupp. 157 (1918). But see Crate v. Southard, 148 111. 37, 35 N. E. 361 (1893),
contra.
If a plaintiff attempts to anticipate and negative a defense, he cannot as a
matter of right Introduce additional evidence on the same point at a later
gtate of the trial. Holbroob v. McBride, l Gray (Mass.) 216 (1855).
Sec. 4) EXAMINATION OF WITNESSES 303
the affidavit states no sufficient grounds in support of it. In the first
place, it does not clearly appear that the plaintiffs did not know of the
objection at the time of the trial. It is sworn very loosely; and if
they knew of it at that time, that would be a decisive reason for refus-
ing to allow it now. However, although no new trial has ever been
granted on such an objection, I do not know but that, if a proper affi-
davit were made, it might have some influence on my mind, where the
party applying has merits; but here the weight of the evidence is in
favour of the verdict.
Rule discharged. 09
GOODTITLE et al. v. WELFORD.
(Court of King's Bench, 1779. 1 Doug. 139.)
Rule nisi for a new trial on the ground of the incompetency of a
witness because of interest. 70
Lord Mansfield. This will has been tried three or four times;
and there have been contradictory verdicts. On the trial, in the pres-
ent instance, the jury were satisfied. But a motion has been made
for a new trial, not on the merits, but on the incompetency of a wit-
ness. When the witness was produced, the counsel for the plaintiff
read his surrender of the copyhold estate left to him by the will, but
it was objected, that this surrender had not been accepted. The wit-
ness, on being questioned, said he had acted as executor, and that the
legatees had received their legacies under the will. On this ground
also, it was contended, that he was interested, because, if the will
should be set aside, he would be answerable for having acted de son
tort. But he was not objected to, at the trial, as being entitled to the
residue of the personal estate. Now, on such a motion as the present,
no objection to a witness should be received which was not made at
the trial. If this new objection had been made then, it might per-
haps have been shewn, that there was no residue, or a release might
have been given, &c. As to the other objections. 1. The bequest to
the witness would certainly have gone to his competency, if he had
not parted with his interest ; but, as he has parted with it, as far as
depends upon him, third persons have a right to his testimony, and the
surrenderee shall not deprive them of it, by refusing to accept the
surrender. 2. It is contended, that, in an action concerning land, an
executor is not a competent witness, because he may be sued for his
administration of the personalty. But he certainly has no immediate
so Obviously the question of the competency of witnesses, or of the admissi-
bility of evidence, could not be reviewed on writ of error unless a proper ex-
ception had been taken in the court below, and had been preserved by bill
of exceptions. Bains v. Railway, 3 H. L. C. 1 (1S50).
to Statement condensed and concurring opinions of Willes and Ashhurst,
JJ., omitted.
304 witnesses (Ch. 2
interest in the action ; and I remember its being determined by Lord
Hardwicke, on a petition for a commission of review, and afterwards
by the delegates, that it is no objection to an executor's testimony, that
he may be liable to actions as executor de son tort.
The rule discharged. 71
QUIN v. LLOYD.
(Court of Arpcals of New York, 1S69. 41 N. T. 349.)
This action was brought to recover for work, labor, and services
done and performed by the intestate going to England, services there,
and returning, for the defendant, on account of which the balance
alleged to be due was $333.07, in gold coin, and also for the sum of
$296.31, alleged to be the further indebtedness of the defendant to the
intestate for services rendered in New York.
The answer was a general denial.
The action was tried before a referee, and in the progress of the
trial the defendant was sworn as a witness in his own behalf, and tes-
tified without objection to the time when the intestate commenced
working for him, the fact of his going to England, and in what capac-
ity, the time of his remaining there, and of his return, to the fact of
payments by the defendant, and the rate of his wages in New York
as draughtsman part of the time and as foreman after Culver left,
and the time when Culver left, and the direct examination of the wit-
ness was closed. At the next meeting of the parties before the referee
on a subsequent day, the plaintiff's counsel moved that the testimony of
the defendant, Lloyd, be struck out, on the ground that under section
399 of the Code of Procedure "the defendant was an incompetent
witness," and the motion was granted and defendant excepted.
The referee reported for the plaintiff, and from the judgment as
modified in the General Term of the Superior Court of the city of
New York, the defendant appealed to this court. 72
71 The rale is the same where the objection poes to the admissibility of
the evidence, instead of the competency of the witness. Williams v. Wilcox,
8 Ad. & Ellis, 314 (1838). See, also, elaborate opinion to the same effect in
Bain v. Railway, 3 H. L. C. 1 (1850), on a bill of exceptions, in which it
was said by Lord Brougham: "See the consequence of not taking the objec-
tion in the proper form; and sec bow impossible it is for us to overleap the
bounds by which, in deciding on the admissibility of such evidence, we are
limit*' d. If we were to act on this objection now, it might be answered:
'If tbis objection had been taken below, instead of the objection being confined
to the ground of surprise, non constat that the court would have allowed the
evidence, and then there would not have been any ground of exception; or,
non constat, that the respondents would not have withdrawn the witness, and
then there would not. have been any ground of exception; or, non constat
thai they would not have proved their point, in another and an unexception-
able way.'"
?••: Statement condensed ami part of opinion of Woodruff, J., and opinion of
Lotl . .1.1.. on another point omit ted.
Sec. 4) EXAMINATION OF WITNESSES 305
Woodruff 1 , J. * * * The referee also erred in striking out the
testimony of the defendant, not only because as to some of the facts to
which he testified they did not appear to have formed part of transac-
tions or conversations had by him personally with the deceased, but
also for another reason, which was fatal to the motion.
The defendant was sworn and examined without objection. Certain
questions put to him were excluded, but none of the testimony which
he gave was objected to, and his direct examination was closed, and
the reference was adjourned to a future day. There is no pretense of
any surprise or misapprehension of the fact that the witness called
and sworn was the defendant. Any and every objection which could
be taken to his testifying or to his testimony, was apparent on the face
of the proceedings ; and yet at a subsequent hearing the referee struck
out the testimony on the alleged ground that the defendant was in-
competent to testify. This will not do. A party against whom a
witness is called and examined cannot lie by and speculate on the
chances, first learn what the witness testifies, and then when he finds
,the testimony unsatisfactory, object either to the competency of the
witness, or to the form or substance of the testimony.
It is not the case, which sometimes occurs, where on cross-examina-
tion, or in a subsequent stage of the trial, the incompetency of evi-
dence appears, though apparently competent when given; e. g., oral
proof of an agreement, which on cross-examination appears to have
been in writing, or proof of parol negotiations, etc., where it after-
wards appears that the oral treaty was, are afterwards embodied in a
written covenant or agreement, and like cases.
The counsel may have been careless in permitting testimony to be
given without objection, which perhaps would have been excluded if
objected to; but this will not authorize the referee to strike 73 it out
after it has been received. This is a rule especially important, since
parties are permitted to testify. The utmost fairness should be ob-
served in the conduct of their examination, and if the adverse party de-
sires to object to transactions with a deceased, he must do so in sea-
son, and not wait till he learns what they are, and then, if they bear
unfavorably on his case, strike them out.
On these grounds the judgment must be reversed. All concur.
Judgment reversed. 74
73 A motion to strike out testimony is proper, where the witness answers
before an objection could be made. Barkly v. Copeland, S6 Cal. 4S3, 25 Pac.
1, 405 (1890) ; Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 10G, 27 Am. St Rep.
25 (1891).
Or where an improper answer is given to a proper question. State v.
Sykes. 191 Mo. 62. 89 S. W. S51 (1905); Plainer v. Platner, 7S N. Y. 90 (1S79»;
Holmes v. Roper, 141 N. Y. 64, 36 N. E. ISO (1S94).
Or where a witness volunteers an improper statement Greenup v. Stoker.
7 111. (2 Oilman) 68S (1S45).
i * Accord: Levin v. Russell, 42 N. Y. 251 (1870); Chicago Title & Trust
Co. v. Sagola Lumber Co., 242 111. 468, 90 N. E. 282 (1909) ; Hickman v. Green,
Hint.Ev.— 20
306 witnesses (Ch. 2
BOSTON & A. R. CO. v. O'REILLY.
(Supreme Court of the United States, 1S95. 15S U. S. 334, 15 Sup. Ct. S30.
39 L. Ed. 1006.)
Mr. Justice Shiras 75 delivered the opinion of the court.
The first three specifications of error complain of the action of the
court in permitting the plaintiff, O'Reilly, to testify as to what he had
made out of his business for several years before the accident, and to
give an estimate of how much he made annually by his own individual
exertions ; and also, in view of the fact that he had sold the business,
good will, and everything connected with the business before the acci-
dent occurred, to testify that, when he so sold out, he did it with the
intention of continuing the business.
The first objection urged to the admission of this evidence is that it
went to show special damage caused to the plaintiff by the loss and
interruption of his business, whereas there were no allegations of such
special damage contained in the declaration. It does not appear, how-
ever, that objection was specifically made to the evidence on the ground
that the declaration contained no allegations of the special damage
sought to be shown ; and it is perfectly well settled in this court that
where a case has gone to a hearing, testimony been admitted to a jury-
under objection, but without stating any reasons for the objection,
and a verdict rendered, with judgment on the verdict, the losing party
cannot, in the appellate court, state for the first time a reason for that
objection which would make it good. Roberts v. Graham, 6 Wall. 578,
18 L. Ed. 791 ; Patrick v. Graham, 132 U. S. 627, 10 Sup. Ct. 194,
33 L. Ed. 460.
Objections were made in the present case to the admission of the
evidence in question, but such objections did not, in our judgment,
123 Mo. 1G5, 22 S. W. 455, 27 S. W. 440, 29 L. R. A. 39 (1894); Pillow v.
Southwest Imp. Co., 92 Va. 144, 23 S. E. 32, 53 Am. St. Rep. S04 (1S95) ; Ben-
son v. U. S., 146 U. S. 325, 13 Sup. Ct. 60, 36 L. Ed. 991 (1S93).
Apparently the English courts sanction the practice of making the objec-
tion to the competency of a witness at any time during his examination.
Lord Abinger, in Jacobs v. Layborn, 11 M. & W. 685 (1S43): "So, in any other
case, I do not see why counsel should be restricted from inquiring at any mo-
ment into the witness' competency, and, if they see that he is swearing
falsely, excluding his testimony if they can. A counsel who knows of an
objection to the competency of a witness may very fairly say, 'I will lie by,
and see whether he will speak the truth; if he does not. I will exclude his
evidence.' I see no hardship or injustice at all in that course. In short, there
i-< ample authority to show that the ancient, if not universal, practise has been
to allow objections of this kind to be taken as was done in this case."
In that case the objection came after the witness had answered a number of
questions in chief.
In the fuse of Inadmissible evidence the rule is well settled that the ob-
jection must be made at the time. Wright v. Littler, 3 Burrow, 1244 (1761).
If an objection to the competency of a witness is made and overruled, it is
not waived by a proper cross-examination. McCune v. Goodwillie, 204 Mo.
306, 102 S. W. :i!»7 (1907).
75 Statement and part of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 307
apprise the court of the specific ground of objection now urged, and
hence did not afford an opportunity of permitting an amendment of the
declaration, upon such terms as the interests of justice might seem to
require.
If, then, this were the only ground on which we were asked to pro-
ceed in disposing of these assignments of errors, we should not feel
disposed to disturb the judgment. * * *
Judgment reversed (on other grounds). 79
7 6 And so where a general objection is made to a document.
Field, J., in Noonan v. Caledonia Gold Mining Co., 121 TJ. S. 393, 7 Sap.
Ct. 911, 30 L. Ed. 1061 (18S7): "2. The objection to the introduction of the
articles of incorporation at the trial was that they were 'immaterial, irrele-
vant, and incompetent' evidence. The specific objection now urged, that they
were not sufficiently authenticated to be admitted in evidence, and that the
certificates were made by deputy officers, is one which the general objection
does not include. Had it been taken at the trial and deemed tenable, it might
have been obviated by other proof of the corporate existence of the plaintiff
or by new certificates to the articles of incorporation. The rule is universal,
that where an objection is so general as not to indicate the specific grounds
upon which it is made, it is unavailing on appeal, unless it be of such a char-
acter that it could not have been obviated at the trial. The authorities on
this point are all one way. Objections to the admission of evidence must be
of such a specific character as to indicate distinctly the grounds upon which
the party relies, so as to give the other side full opportunity to obviate them
at the time, if under any circumstances that can be done. United States v.
McMasters, 4 Wall. 680 [18 L. Ed. 311 (1S66)] Burton v. Driggs, 20 Wall. 125
[22 L. Ed. 299 (1873)] ; Wood v. Weimar, 104 U. S. 786,- 795 [26 L. Ed. 779
(1881)].*'
The words "incompetent, irrelevant and immaterial" were defined in Stoner
v. Royar, 200 Mo. 444, 9S S. W. 601 (1906), as follows: "We have said that
the patent and deeds of defendant were introduced in evidence without ob-
jection, by which we do not mean that we have overlooked the objection in
the general words 'incompetent, irrelevant and immaterial.' An objection to
evidence that it is irrelevant is sufficiently specific; it means that it does not
bear on any issue in the case, and 'immaterial' means nearly the same. It
cannot be said of these documents that they were irrelevant, because they
were the defendant's title to the land to which he claimed that the land in
suit was an accretion, just as plaintiff's documentary evidence which did not
call for this land, but did call for land to which the plaintiff claimed this
land was an accretion. But an objection on the ground that the evidence of-
fered is incompetent without a specification in what respect it is believed to
be so is really no objection at all."
For cases where such an objection was held sufficient to raise the question
on the theory that the reason was obvious and could not have been cured,
see Bailey v. Kansas City, 189 Mo. 503, 87 S. W. 1182 (1905) ; Groh's Sons v.
Groh, 177 N. Y. 8, 68 N. E. 992 (1903) ; Metropolitan St. Ry. Co. v. Gumbv, 99
Fed. 192, 39 C. C. A. 455 (1900).
Compare Williams v. Wilcox. 8 Ad. & El. 314 (1S38).
303 witnesses (Ch. 2
ROSENBERG et al. v. SHEAHAN et al.
(Supreme Court of Wisconsin, 1912. 14S Wis. 92, 133 N. W. G43.)
This was an action on a contract under which the plaintiff installed
an elevator for the defendants. The case was tried in the civil court
at Milwaukee and the plaintiff recovered for substantial performance.
On appeal to the circuit court the case was heard on the record and the
judgment affirmed. Defendants appealed. 77
Marshall, J. * * * Appellants attempted to prove the exist-
ence of the ordinance by means of a booklet of a few pages having
nothing about it to indicate that it was an official publication. There
was a general objection. The court of original jurisdiction took the
evidence, making no ruling. Whether in reaching the original con-
clusion embodied in the judgment in the initial jurisdiction, the evi-
dence in question was considered does not affirmatively appear. If
it should have been rejected, the presumption must be, as we have
seen, that it was. The appellate court excluded the evidence under the
general objection.
Counsel cite many cases to show that the court below erred in re-
jecting the evidence because the objection thereto was not specific.
The fact seems to have been overlooked that the cited cases are of
trials where there was a general objection, the evidence was received
and it was held proper because of competency for a court to do so, the
objection not being specific ; and overlooked the companion rule that if,
in face of a general objection, only, the court rejects the evidence the
ruling will not be reversed on appeal if it appears that the evidence
was objectionable upon any specific ground. There, it is to be pre-
sumed, the specific infirmity was the deciding factor, and it was com-
petent for the trial court to take efficient notice thereof though it was
not bound to do so. Pettit v. May, 34 Wis. 666; Nicolai v. Davis,
91 Wis. 370, 64 N. W. 1001 ; Crawford v. Witherbee, 77 Wis. 419, 46
X. W. 545, 9 L. R. A. 561 ; Evans v. Sprague, 30 Wis. 303, and many
similar cases which might be cited, are all instances where the evidence
was received and it was held not error because the objection was gen-
eral.
True, it is the rule that where evidence is rejected under a general
objection and a contrary ruling would have been called for upon a
specific objection, and counsel making the offer requests the court to
specify the particular ground for the adverse ruling for the purpose
of obviating it, it is improper to refuse to do so. Colburn v. C, St. P.,
M. & O. Ry. Co., 109 Wis. 377, 85 N. W. 354, but that is not this
case, and is in harmony with the general rule stated.
This is elementary: "The rule that the objection should be specific
has no application, however, where a general objection is sustained ;
m Statement condensed and part of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 309
in that case the party against whom the ruling was made cannot urge
that the objection was too general." Jones on Ev. § 897; 8 Ency.
PI. & Pr. 229; Wigmore on Ev. § 18. That rule seems to be thus
rather more specifically stated in Tooley v. Bacon, 70 N. Y. 34, than
in any of our own adjudications which we have in mind: "Where
evidence is excluded upon a mere general objection, the ruling will be
upheld upon appeal if any ground in fact existed for the exclusion;
it will be assumed in the absence of any request by the opposing party
or the court, to make the objection more definite, that it was under-
stood, and that the ruling was placed upon the right ground."
There are other exceptions to the general rule that objections should
be specific, and, if not, an adverse ruling will not be held error, as
where evidence offered is manifestly improper the court may, in its
discretion, exclude the same whether objected to or not. Farmers'
Bank v. Whinfield, 24 Wend. (N. Y.) 421 ; Jones on Ev. § 896. And,
further, where it is manifest that the evidence is not proper in any
circumstances, a general objection, though overruled will be deemed
to have been sufficient. Wigmore on Evidence, § 18.
The foregoing in favor of respondents disposes of the contention
based on the claimed existence of a city ordinance affecting their right
to recover ; but there were good reasons for the exclusion. As the
trial court held, the offered evidence was not a copy of a city ordi-
nance authenticated in the manner provided by section 4137, Stats.
1898. The document did not purport to have been printed by au-
thority of the common council, as the statute provides. That was
sufficient to justify the exclusion. Quint v. City of Merrill, 105 W r is.
406, 81 N. W. 664. It was not a case of defective authentication with
which the trial court had to deal, but of no authentication at all.
* * *
Judgment affirmed. 78
ts Accord: Davey v. Railway, 116 Cal. 325, 48 Pac. 117 (1S97), and cases
there cited.
The rule appears to be the same where evidence is excluded on an objec-
tion assigning the wrong ground. Eschbach v. Hurtt, 47 Md. 61 (1S77).
Compare Read, J., in Bridgers v. Bridgers, 69 N. C. 451 (1873): "If the
defendant had said, I object to this witness testifying as to a question of law,
we may reasonably suppose that both the plaintiff and his honor would have
seen the force of the objection. And then the plaintiff could have avoided the
objection by asking the witness as to the facts and leaving the law to his
honor. Or if his objection had been general, it might have led to the same re-
sult. But his objection was special, and untenable, and calculated to mis-
lead."
For the various views on a somewhat similar question, where a nonsuit or
a verdict has been directed on a general motion or on a motion specifying un-
tenable grounds, see Wallner v. Traction Co., 245 111. 148, 91 N. E. 1053 (1910) ;
Gerding v. Haskin, 141 N. Y. 514, 36 N. E. 601 (1894) ; Palmer v. Marysville
Democrat Pub. Co., 90 Cal. 168, 27 Pac. 21 (1891).
310 WITNESSES (Ch. 2
PENN v. BIBBY.
(Court of Appeal in Chancery, 1S66. L. R. 2 Ch. App. Cas. 127.)
On a bill to restrain the infringement of a patent, issues were direct-
ed to be tried before the court without a jury, and were found in fa-
vor of the complainant. The defendant moved before the Lord Chan-
cellor for a new trial. 78
Lord Chelmsford, L. C, after stating the circumstances, said, that
the motion for a new trial upon the first question proceeded upon the
ground that the verdict was against the weight of evidence. * * *
I have now disposed of every question connected with the patent;
but there was one ground of application for a new trial which must
be shortly noticed. It is said that the defendants were proceeding to
cross-examine some of the plaintiff's witnesses as to their knowledge
of the use of wood for bearings in paddle-wheels prior to the date of
the patent, and that the Vice-Chancellor stopped them upon the ground
that this was not within the notice of objections. I apprehend, that it
is always competent upon cross-examination, to put a question in this
general form. The counsel would not be entitled to inquire of the
plaintiff's witnesses as to any specific instance of the prior use of the
patented invention of which he had not given notice ; but he has al-
ways a right to test the general knowledge of the witnesses upon the
subject.
In order to ground this objection, however, the question proposed to
be put should have been formerly tendered to the judge, and rejected
by him as inadmissible. Now, it appears that his honour was never
distinctly requested to admit any specific question, but from some
cursory remarks it is assumed that he would not have permitted a
particular line of cross-examination.
This, however, is not sufficient. The judge should have an oppor-
tunity of deciding upon some distinct question, and have refused to
allow it, before there can be a motion made for a new trial on account
of the rejection of evidence. This objection, therefore, has no foun-
dation.
The motion for a new trial must be refused with costs.
Motion refused. 80
?e Statement condensed and part of opinion omitted.
eo Mr. Justice Ricks, in Chicago City By. Co. v. Carroll, 200 111. 318, G8
N. E. 1US7 (l'JOIJJ: "When this witness retired from the stand, appellee an-
nounced that be rested his rase. Appellant's attorney then said: 'We de-
sire to ofiir evidence, your honor, on the question of inspection of the cars,
and so forth.' The court replied: 'Very well; I won't receive any evidence
as to tli<' ownership of this line at this stage.' Exception was taken.
* * * Appellant, in fact, offered no evidence upon the matter. No witness
was put Upon the stand; no question Was asked. Nothing was done except a
mere conversation or tali; had between counsel for appellanl and the court.
Such procedure ;>- that does not amount to an offer of evidence, and the re-
markB of the court did QO\ amOUnl to a refusal to admit evidence. There can
Sec. 4) EXAMINATION OF WITNESSES 311
SCOTLAND COUNTY v. HILL.
(Supreme Court of the United States, 1S84. 112 U. S. 183, 5 Sup. Ct. 93, 28
L. Ed. 692.)
This was an action on certain county bonds. The defence relied
on was that the bonds had been negotiated in violation of an injunction,
of which the holders had notice. The court excluded the record in
the injunction case.
The defendant then "offered to prove by Charles Metz, the agent
named in the pleadings, that he had actual notice of the pendency of
the aforesaid suit of Levi Wagner et al. v. Metz et al., at the time he
delivered the instruments (described in the defendant's pleading) to the
Missouri, Iowa & Nebraska Railway Company, and offered to prove
that the Missouri, Iowa & Nebraska Railway Company, and each
subsequent holder, received the instruments referred to in the plain-
tiff's petition with actual notice of the pendency of the aforesaid suit,
* * * as set up in the fourth count of the answer." This was
also objected to and the objection sustained. To all these rulings
excluding testimony exceptions were duly taken, and error is assigned
here thereon. 81
Mr. Chief Justice Waite delivered the opinion of the" Court. * * *
The case of County of Warren v. Marcy, 97 U. S. 96, 24 L. Ed. 977,
decides that purchasers of negotiable securities are not chargeable with
constructive notice of the pendency of a suit affecting the title or va-
lidity of the securities ; but it has never been doubted that those who
buy such securities from litigating parties, with actual notice of the
be no refusal to admit that which has not been offered, and counsel cannot,
by engaging in a mere conversation with the court, although it may relate to
the procedure, by merely stating what he desires to do, get a ruling from the
court upon which he can predicate error. If appellant desired to make the
contention it now makes, it should have at least put a witness upon the stand
and proceeded far enough that the question relative to the point it is now
said it was desired to offer evidence upon was reached, and then put the
question and allow the court to rule upon it, and then offer what was expect-
ed to be proved by the witness, if he was not allowed to answer the ques-
tion asked. It was not stated to the court that appellant did inspect the cars
or could prove that the cars had been regularly inspected or recently inspect-
ed, or that the inspection that was made was an examination of the trolley
pole or its attachments, and to now hold that the case should be reversed up-
on the mere statement of counsel that he desired to offer evidence upon the
question of the 'inspection of the cars, and so forth,' would, as we think, be
setting a dangerous precedent, and one that would tend to irregularity in such
matters. Stevens v. Newman, 68 111. App. 549 (1S96) ; Beard v. Lofton, 102
Ind. 40S [2 N. E. 129 (1885)] ; Morris v. Morris, 119 Ind. 341 [21 N. E. 918
(1889)] ; Ralston v. Moore, 105 Ind. 243 [4 N. E. 673 (1SS6)]; Smith v. Gorham,
119 Ind. 436 [21 N. E. 3096 (1889)]; Citv of Evansville v. Thacker, 2 Ind. App.
370 [28 N. E. 559 (1891)]; Darnell v. Sallee, 7 Ind. App. 5S1 [34 N. E. 1020
(1893)] ; First Nat. Bank of Kendallville v. Stanley, 4 Ind. App. 213 [30 N. E.
799 (1S92)] ; Lewis v. State ex rel. Daily, 4 Ind. App. 504 [31 N. E. 375 (1S92)] ;
Hugsins v. Hughes, 11 Ind. App. 465 [39 N. E. 298 (1S95)] ; S Ency. of PL and
Pr. 236."
si Statement condensed and part of opinion omitted.
312 WITNESSES (Ch. 2
suit, do so at their peril, and must abide the result the same as the
parties from whom they got their title. Here the offer was to prove
actual notice, not only to the plaintiff when he bought, but to every
other buyer and holder of the bonds from the time they left the hands
of Metz, pending the suit, until they came to him. Certainly, if these
facts had been established, the defense of the county, under its
fourth plea, would have been sustained ; and this, whether an in-
junction had been granted at the time the bonds were delivered by
(Metz or not. The defense does not rest on the preliminary injunc-
tion, but on the final decree by which the rights of the parties were
fixed and determined.
It is claimed, however, that error cannot be assigned here on the ex-
ception to the exclusion of the oral proof, because the record does
not show that any witness was actually called to the stand to give the
evidence, or that any one was present who could be called for that pur-
pose, if the court had decided in favor of admitting it, and we are re-
ferred to the cases of Robinson v. State, 1 Lea, (Tenn.) 673, and
Eschbach v. Hurtt, 47 Md. 66, in support of that proposition. Those
cases do undoubtedly hold that error cannot be assigned on such a
ruling, unless it appears that the offer was made in good faith, and
this is in reality all they do decide. If the trial court has doubts about
the good faith of an offer of testimony, it can insist on the production
of the witness, and upon some attempt to make the proof, before it
rejects the offer; but if it does reject it, and allows a bill of exceptions
which shows that the offer was actually made and refused, and there
is nothing else in the record to indicate bad faith, an appellate court
must assume that the proof could have been made, and govern itself
accordingly.
It is evident from the whole record that the court below proceeded
on the theory that the decree in the Wagner suit could not conclude
the plaintiff, and that, consequently, it was a matter of no importance
whether he had notice of the pendency of the suit or not. In our opin-
ion, the error began with the exclusion of the record in that suit. As
notice of the pendency of the suit was, however, necessary to bind
the plaintiff by the decree, proof of that fact was offered, so that
the question as to the effect of the decree upon this suit might be prop-
erly presented for review if deemed advisable. The court below
seems not to have doubted the good faith of the offer, and so ruled
against it without first requiring the defendant to produce his wit-
nesses and show his ability to furnish the testimony if allowed to do
It is a matter of no importance whether the decision in the Wag-
ner suit was in conflict with that of this court in Scotland Co. v.
Thomas, supra, or not. The question here is not one of authority but
of adjudication. If there has been an adjudication which binds the
plaintiff, that adjudication, whether it was right or wrong, conclude
him until it has been reversed or otherwise set aside in some direct
Sec. 4) EXAMINATION OF WITNESSES 31
proceeding for that purpose. It cannot be disregarded any more in the
courts of the United States than in those of the state.
Without considering any of the other questions which have been
argued, we reverse the judgment and remand the cause for a new
trial.
LADD v. MISSOURI COAL & MINING CO.
(Circuit Court of Appeals of the United States, Eighth Circuit, 1895. 66 Fed.
880, 14 C. C. A. 246.)
Caldwell, Circuit Judge. 82 This action was commenced in the
United States circuit court for the Eastern District of Missouri by
William M. Ladd, the plaintiff in error, against the Missouri Coal &
Mining Company, the defendant in error, to recover $34,637 damages
for the breach of an alleged contract of brokerage. At the close of the
testimony, by direction of the court, the jury returned a verdict for
the defendant, upon which final judgment was rendered, and thereupon
the plaintiff sued out this writ of error. * * *
The plaintiff relies exclusively on the alleged sale to Hatch, and in-
sists that he was prepared to prove, and offered to prove, that Murdock
did approve and accept for the defendant the terms of sale agreed
upon between the plaintiff and Hatch, and that the court erroneously
excluded this evidence. Whatever the fact may have been, the record
does not support this contention. On this subject the record discloses
that while the plaintiff was on the stand as a witness, the following
proceedings took place :
"Q. You also stated that on November 13th Mr. Murdock returned
in the afternoon to your office? A. I did. Q. And you handed him
the proposed contract with Mr. Hatch? A. I did. (Plaintiff offers
to prove by his witness the conversation between him and Mr. Mur-
dock relating to the contract, which conversation was had at St. Louis
on November 14, 1892, but, defendant objecting, the court sustained
the objection, and refused to allow plaintiff to testify to any conver-
sation between him and said Murdock on November 14th, save such
as related to the transmission of the contract from St. Louis to Port
Henry, to which action of the court in so ruling plaintiff then and
there duly excepted.)"
It will be observed that all that the plaintiff offered to prove was
"the conversation between him and Murdock relating to the con-
tract." This offer was not accompanied by any statement as to what
that conversation was, or that it was material to any issue then being
tried. The insufficiency of the exception is rendered apparent by a
single consideration. If this court should reverse the case because the
witness was not permitted to state the conversation, what is there in
8 2 Part of opinion omitted.
314 WITNESSES (Ch. 2
this record to show or suggest that upon another trial, when the wit-
ness is allowed to state the conversation, a single word of it will be
material to the case or admissible in evidence? The offer to prove
the "conversation," without some statement as to what it was, and
showing its materiality, was too general to be made the foundation of
a valid exception. The rule is well settled that the bill of exceptions
must show the materiality of the evidence which was tendered and
rejected.
The evidence rejected, or a statement of what it tended to prove,
must appear in the bill of exceptions. Packet Co. v. Clough, 20 Wall
528, 22 L. Ed. 406; Railway Co. v. Smith, 21 Wall. 255, 22 L. Ed
513; Thompson v. Bank, 111 U. S. 529, 4 Sup. Ct. 689, 28 L. Ed
507; Clement v. Packer, 125 U. S. 309, 8 Sup. Ct. 907, 31 L. Ed. 721
Patrick v. Graham, 132 U. S. 627, 10 Sup. Ct. 194, 33 L. Ed. 460;
Lyon v. Batz, 42 Mo. App. 606 ; Bener v. Edgington, 76 Iowa, 105, 40
N. W. 117. Moreover, it does not appear from the record before us
mat Murdock was the agent of the defendant for the purpose of
selling the land, or that he had any authority to approve or confirm
any sale thereof made by the plaintiff. It results that the circuit court
did not err in directing the jury to return a verdict for the defendant,
and its judgment is therefore affirmed.
Judgment affirmed. 83
BUCKSTAFF v. RUSSELL.
(Supreme Court of the United States, 1894. 151 U. S. 626, 14 Sup. Ct. 448,
38 L. Ed. 292.)
This was an action to recover the price of certain boilers and ma-
chinery furnished to the defendants under a written contract. The
defendants filed a counterclaim for breach of warranty. Verdict and
judgment for plaintiff, to reverse which defendants sued out a writ of
error. 84
Mr. Justice Harlan delivered the opinion of the Court. * * *
The defendant Utt was sworn as a witness for the defense, and, as we
as Accord: Griffin v. Henderson, 117 Ga. 382, 43 S. E. 712 (1903); Crowley
v. Appleton, 1 is Mass. 98, 18 N. E. 675 (18S8) ; Cincinnati, N. O. & T. P. Ry;
Co. v. Stonedpher, '.»•"» Tenn. 311, 32 S. W. 208 (1S95) ; Dreber v. Fitehburg,
22 Wis. 675, 99 Am. Dec. 93 (l^OS).
When :i documenl is excluded, its contents must be Incorporated in the bill
of exceptions, to enable the appellate court to pass on its materiality. North-
western Onion Packel Co. v. Clough, 20 Wall. 528, 22 E. Ed. -km; (1874);
[Thompson v. First Nat Bank, 111 U. s. 529, 4 Sup. Ct. 089, 28 L. Ed. 507
'i be rule requiring a statement of the excluded testimony is not applied
where b proper question la excluded on cross-examination. Cunningham v.
Justin tk N. W. Ry. Co., 88 Tex. 684, 81 8. W. 629 (1895); Knapp v. Winy,
72 \'t. 334, 47 At 1. 1075, (1900).
■* Statemenl condensed and pnrt of opinion omitted.
SCC. 4) EXAMINATION OF WITNESSES 315
infer, in support of the counterclaim. Having stated that he and Buck-
staff, in April, 1888, first commenced negotiations for the purchase of
the boilers with Mr. Giddings, representing Russell & Co., the following
questions were put, successively, to him: (1) "What conversation did
you have with him, if any, about the purpose for which the machine
must be used, and the necessity for steam capacity in the boilers?"
(2) "You may state in what your damages consisted, and the amount,
in consequence of the defective construction, and the failure of this ma-
chinery to perform its labor, and the labor required of it by the terms
of the contract, from the time of its erection up to the first day of
March." (3) "You may state what damage you sustained in conse-
quence of the failure of this machinery to do the work at the paper
mill." (4) "You may state what loss you suffered in consequence of
the defective construction and failure in the machinery." (5) "In what
particular did you and the defendant Buckstaff sustain loss by reason
of the defects in the construction and the failure of this machinery?"
Each of these questions was objected to upon the ground that it was
incompetent, irrelevant, and immaterial. No one of them was objected
to upon the ground that it was a leading question.
In the case of Shauer v. Alterton, 151 U. S. 607, 14 Sup. Ct. 442,
38 L. Ed. 286, just decided, it was held to be the settled construction
of the twenty-first rule of this court that an assignment of error based
upon the exclusion of an answer to a particular question in the deposi-
tion of a witness would be disregarded here, unless the record sets
forth the answer or its full substance. Packet Co. v. Clough, 20 Wall.
528, 542, 22 L. Ed. 406; Railroad Co. v. Smith, 21 Wall. 255, 262. 22
L. Ed. 513 ; Thompson v. Bank, 111 U. S. 529, 535, 536, 4 Sup. Ct. 689,
28 L. Ed. 507. Our rule, thus construed, is one to which parties can
easily conform. Having access to the deposition containing the answer
of the witness to the interrogatory, parties, as well as the trial court,
are informed of the precise nature of the evidence offered. The re-
quirement that an assignment of error based upon the admission or
rejection of evidence must, in the case of a deposition excluded in whole
or in part, state the full substance of the evidence so admitted or re-
jected, means that the record must show, in appropriate form, the na-
ture of such evidence, in order that this court may determine whether
or not error has been committed to the prejudice of the party bringing
the case here for review.
But this rule does not apply where the witness testifies in person, and
where the question propounded to him is not only proper in form, but
is so framed as to clearly admit of an answer favorable to the claim
or defense of the party producing him. It might be very inconvenient
in practice if a party, in order to take advantage of the rulings of the
trial court in not allowing questions proper in form, and manifestly
relevant to the issues, were required to accompany each question with
a statement of the facts expected to be established by the answer to
316 WITNESSES (Ch. 2
the particular question propounded. 85 Besides, (and this is a con-
sideration of some weight), such a statement in open court, and in
the presence of the witness, would often be the means of leading or
instructing him as to the answer desired by the party calling him. If
the question is in proper form, and clearly admits of an answer relevant
to the issues and favorable to the party on whose side the witness is
called, it will be error to exclude it. Of course, the court, in its
discretion, or on motion, may require the party in whose behalf the
question is put to state the facts proposed to be proved by the answer.
But, if that be not done, the rejection of the answer will be deemed
error or not, according as the question, upon its face, if proper in form,
may or may not clearly admit of an answer favorable to the party in
whose behalf it is propounded.
Tested by these views, the court below erred in not permitting the
defendant Utt to answer the above questions. Each one of them was
relevant to the counterclaim, and each admitted of an answer that tend-
ed to support it. * * *
Judgment reversed.
II. Examination tn Chief
CASE OF THE CORPORATION OF BEWDLEY.
(Court of Queen's Bench, 1714. 10 Mod. 151.)
Those that produce a witness ought to examine him in chief only :
but they, against whom he is brought, may examine him upon a voir
dire, if they please, whether he is concerned in interest.
The matter in issue was, which was the charter by which the cor-
poration of the town of Bewdley was to act, whether by the ancient
one, or .one of later date?
A witness was produced to establish the ancient charter.
His evidence was excepted against, as being a mortgagee under the
old corporation.
This was proved by an answer of his to a bill in Chancery.
But it was insisted that this answer was so uncertainly penned, as
that it might be true, and yet his mortgage of such a nature as not to
b» Lamar, J., in Griffin v. Henderson, 117 Ga. 882, 43 S. E. 712 (1903):
"I'.n-ii. 3 can often agree in the presence of the court as to what the witness
would testify, or, if" not, the witness, or examining attorney, can s t : 1 1 o whal
the answer would be; and where the subject-matter is Important, the judge
may, In hi tlon, retire the jury until its admissibility has been settled.
We are well aware that the rule may be perverted into a means of getting
Inadmissible evidence before the jury, or, by forcing their constant with-
drawal, retarding the trial. The courts must rely upon the good faith of
counsel not to bring aboui such a result, But it would never do to grant a
new trial until it appeared, not only timt the question was proper, but that
the answer was material, and would have heen of benefit to the complaining
party."
Sec. 4) EXAMINATION OF WITNESSES 317
prevent his evidence, and therefore that he might be called to explain
the ambiguity of his answer.
The Court was of opinion that he might, since his answer de-
pended upon his veracity, as much as the evidence he could then give ;
and if the one be to be credited, why not the other?
But afterwards his evidence was rejected upon another considera-
tion, viz. that in his answer he lays the whole stress of his defence up-
on the matter then in issue, viz. the subsisting of the present corpora-
tion. 88
ANONYMOUS.
(Court of Chancery, 1754. Amb. 252.)
Motion to suppress a deposition taken before commissioners, be-
cause the attorney for plaintiff had wrote down the whole in the exact
form of the deposition before it was taken. And though it appeared
that the witness had told him the facts and circumstances mentioned in
it, yet his Lordship said, it would be of dangerous tendency to permit
it to be read ; for in depositions it is material to state the evidence as
given by the witness: in this case the attorney had methodised and
worded it, and is therefore no more than an affidavit. 87 He said, at law
se That a witness, prima facie incompetent, cannot be examined by the
party calling to prove a fact necessary to make him competent, see Wil-
liams' Adm'r v. Williams, 67 Mo. 661 (1878).
But where the witness himself discloses the disqualification, his testimony
may also remove it. Abrahams v. Bunn, 4 Burrow, 2251 (1768).
S7 In the Case of Eldridge, 82 N. Y. 161, 37 Am. Rep. 558 (1SS0) Costigan's
Cases on Legal Ethics, p. 198, Finch, J., condemned such practice in the fol-
lowing language: " * * * Laying aside, then, all question of the truth or
falsity of the answers, discarding every thing dependent upon Wheeler alone
as unworthy of credit, the fact yet remains that an attorney of the court,
having taken out a commission for the examination of a witness, writes out
what, when printed, are twenty-six pages of answers to interrogatories, and
eighteen pages of answers to cross-interrogatories, furnishes them to the wit-
ness, who has already drawn upon him for serious sums of monev, reads a
part of the answers to the commissioner, and leaves the rest for the wit-
ness to repeat, and so practically puts his own words, his own ideas, his
own facts into Wheeler's mouth, and gets them before the surrogate dis-
guised as honest testimony. Such conduct is inexcusable. The coloring sought
to be given it by Eldridge that he merely meant to refresh the memory of the
witness is not justified by the facts. He furnished answers, not notes. He
controlled and mastered the memory of the witness; not merely refreshed
it. The witness did not answer at all. Eldridge answered for him. We get
neither the language nor the memory of the witness; we get only that of
his teacher. Practically the examination was merely an affidavit drawn by
Eldridge and sworn to by Wheeler. In its true character it was not admis-
sible before the surrogate. When, therefore, it was disguised on the shape
of testimony and the form of an examination, and so received into the case
a fraud was committed on the surrogate, and the author of it was Eldridge.
Grant that the answers are not shown to be false, and that Eldridge be-
lieved them to be true ; yet he corrupts justice at the fountain by dictating
the evidence of the witness. Upon the trial of an issue in open court a ques-
tion merely leading is excluded. The law so carefully guards the indepeud-
318 WITNESSES (Ch. 2
a witness is allowed to refresh his memory by notes as to dates and
names, because there is nothing to guide the memory as to them ; but
he never knew a Court of Law admit the whole evidence to be given
from writing. Doe v. Perkins, 3 T. R. 752 ; Tanner v. Tayler, Id. 754 ;
8 East, 284, 289; Hedge's case, 28 Howell's St. Tr. 1367. See 24
Howell's St. Tr. 824. There is no certain rule how far evidence may
be admitted from notes. Some judges had thought, and he was (he
said) inclined the same way, that the witness might speak from notes
which were taken at the time of the transaction in question, but not
if they were wrote afterwards. Burrough v. Martin, 2 Campb. 112.
Deposition suppressed.
STEER v. LITTLE.
. (Supreme Judicial Court of New Hampshire, 1S63. 44 N. II. 613.)
Trespass quare clausum. The plaintiff owned the north part and
the defendant's wife the south part of a lot laid out and conveyed as
a one hundred acre lot ; but there was evidence tending to show that
it contained more than one hundred acres — the exact number of acres
not being agreed upon by the parties, nor clearly proved by the evi-
dence. The question between the parties was the location of the di-
viding line between them. The defendant claimed and introduced
evidence tending to prove that a line run by one Goodall, giving the
plaintiff fifty acres, had been agreed upon by the parties as the divid-
ing line. The plaintiff introduced evidence tending to show that no
line had been agreed upon, and that a line dividing the lot into two
equal parts was the dividing line.
The defendant objected to the following question, put to S. Whit-
ing, as leading: "Have you traced the dividing line through your
lot ? " The court ruled that the question was leading, but that it
might be put ; and the defendant excepted.
One Rowell testified in a deposition to conversations when the
plaintiff and the defendant and his wife were present. The defend-
ant objected to the third and fifth interrogatories, as leading, and to
the answer to the fifth interrogatory, on the ground that the dec-
larations of the defendant's wife are inadmissible in the case. The
court allowed the questions and answers to be read, and the defend-
ant excepted. The interrogatories and answers were as follows :
"3. State what claim Mrs. Little and her husband made as to hold-
ing, by virtue of your deed to her, all but fifty acres of said lot?
'Ans. She stated that I had deeded to Stephen Steer, or to Maria
cnt and onwarped testimony of a witness that it will not permit, even by
the form of a question, the suggestion of Its answer. Yet here the answers to
thirty-three direct Interrogatories, and forty-one cross-interrogatories are ac-
tually \ rit i. n (jut by the attorney for the use of the witness, and so imported
into the ca
Sec. 4) EXAMINATION OF WITNESSES 319
Smith, previous to her deed, fifty acres of the other end of the lot,
and to her the residue to the Woods lot; and if I had not bounded
her on the Woods lot I should still have held a gore there of the over-
plus. I deeded her fifty acres, to the Woods lot. She claimed the
overplus because I bounded her on the Woods lot.
. "5. State whether Mr. Little or Mrs. Little denied or disputed at
that time the right of Mr. Steer to hold what his deed covered, by
reason of any agreed line? If so, what line?
"Ans. They did not. I don't mean to be understood that she ad-
mitted it. She claimed that in my deed to Maria Smith I confined
her to just fifty acres. She made no claim by virtue of any agreed
line."
The jury returned a verdict for the plaintiff, which the defendant
moved to set aside. 88
Bell, C. J. To the general rule that leading questions shall not
be put to a witness, there are certain exceptions, as well settled as
the rule itself, in which the judge, in the exercise of his discretion,
may permit such questions. These exceptions are fully discussed in
the recent case of Severance v. Carr, 43 N. H. 65.
If the case shows that the ruling of the judge was made in the
exercise of his discretionary power to admit leading questions in prop-
er cases, the court will not revise the decision. It is often impractica-
ble for the revising court to possess themselves of all the facts and
circumstances which might properly have a bearing upon the deci-
sion. Hopkinson v. Steele, 12 Vt. 584; Parsons v. Huff, 38 Me. 138,
and cases cited.
If objection is made to a question as leading, and it is merely over- '
ruled or the question allowed, the point decided is, that the question
is not leading, and the party is entitled to his exception. No ques-
tion of discretion is raised. Williams v. Eldridge, 1 Hill, 249; Page
v. Parker, 40 N. H. 53. Where the question objected to as leading is
admitted, the exception must be allowed, and the verdict set aside,
if the exception is well founded, since no discretion is involved in
that case, except where the question rejected was put in the cross-
examination. Parsons v. Bridgham, 34 Me. 240.
Still, if the case, as stated, shows that the question was admissible,
though leading, and that it must have been admitted in the exercise of
a proper discretion, the verdict will not be disturbed.
Such seems to us the question put to Whiting. The court ruled
that it was leading, but that it might be put. It must be understood
that the judge allowed it in his discretion. It was merely introductory
to something that might be material, and it was properly allowed.
Questions deemed leading, of most common occurrence, fall into
three classes. Willis v. Quimby, 31 N. H. 485; 2 Stark. Ev. 123;
Greenl. Ev. 481.
8 8 Statement condensed and part of opinion omitted.
320 witnesses (Ch. 2
1. Where they call for no other answer than a simple affirmative
or negative, as yes or no, or the like, the witness merely assenting
to the language of another. The witness is to answer in his own lan-
guage ; the counsel is not allowed to substitute his own artful state*
ment for that of the witness. Budlong v. Van Nostrand, 24 Barb.
(N. Y.) 26; Page v. Parker, 40 N. H. 53; Dudley v. Elkins, 39 N.
H. 84.
In the case of Spear v. Richardson, 37 N. H. 31, it was held that
the question, "Did he" (the horse in question) "ever have a cough ? "
was not leading. It was not such as to instruct the witness which
way to answer it. The form of the question was not suggestive of
a negative rather than an affirmative answer. And this was true.
But if the question had stood alone it would be liable to an objection
which would equally render it leading; that it called for a simple
yes or no to a question perhaps artfully worded by counsel to serve
his purpose, instead of calling upon the witness to state his knowledge
of the facts in his own language, which might have a materially dif-
ferent import. But the question was not open to this objection, be-
cause it was part of a question only, the whole of which, taken to-
gether, did call for a statement of the witness' knowledge, in his own
words, so that this case is in harmony with other decisions on the
subject.
2. Where the question is so framed or so put as to suggest to the
witness the answer desired. Williams v. Eldridge, 1 Hill (N. Y.) 249 ;
People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Parsons
v. Bridgham, 34 Me. 240.
3. Where the question assumes any fact which is in controversy,
so that the answer may really or apparently admit that fact. Such
are the forked questions habitually put by some counsel, if unchecked ;
as, What was the plaintiff doing when the defendant struck him?
the controversy being whether the defendant did strike. A dull or
a forward witness may answer the first part of the question, and
neglect the last. People v. Mather, 4 Wend. (N. Y.) 229, 21 Am.
Dec. 122.
There is no form of question which may not be held leading — the
court being constantly compelled to look beyond the form to the sub-
stance and effect of the inquiry. If a question suggests to the wit-
ness either the matter or the language desired, it is to be disallowed.
Parsons v. Huff, 38 Me. 138; Hopper v. Commonwealth, 6 Grat.
(Va.) 684, cited in 4 Wend. 247; Page v. Parker, 40 N. H. 53; IIop-
kinson v. Steel, 12 Yt. 584; Willis v. Quimby, 31 N. II. 485; Bart-
lett v. Hoyt, 33 N. H. 165.
We are well aware that it has been held elsewhere that the admis-
sion of a loading question is a matter resting in the discretion of the
judge, and is no ground for a new trial, 80 Bliss v. Shuman, 47 Me.
Attorney General, in Horne v. MacKenzle, c> <n. & Fin. 628 (1839):
il Hint has been advanced on fli<> other side is merely matter for a new
Sec. 4) EXAMINATION OF WITNESSES 321
253 ; Parsons v. Huff, 38 Me. 138 ; that it is a matter always in the
discretion of the court, subject, however, to be reviewed, and will not
be regarded as error unless the discretion has been abused, Cope v.
Sibley, 12 Barb. (N. Y.) 522; Budlong v. Van Nostrand, 24 Barb.
(N. Y.) 26.
But we think neither of these views has ever been entertained here ;
that, on the contrary, verdicts have often been set aside on account
of erroneous rulings in relation to the admission or rejection of evi-
dence objected to as leading; that the discretion of the court has
not been regarded as extending to every case, but has been confined to
the cases enumerated in Severance v. Carr, 43 N. H. 65, and analogous
cases; and that here no inquiry would be incidentally made into any
such question as is spoken of in the New York cases, of abuse of
discretion producing injustice. Here the inquiry is limited to the
question whether the court assumed to act by virtue of its discretionary
powers in a proper case.
It is never difficult for counsel to change the form of inquiry, so as
to obviate any just objection. It is always their duty so to frame
their questions at first as to leave no room for objection. It is es-
sential to the fairness of trials that they should be held to make their
inquiries properly. If a lax practice is allowed, there are counsel
whose questions would be all leading; knowing they would be re-
quired to change their form, if objection was made, and trusting that
the question and the discussion would teach the witness what was
wanted. In such case the mischief is not obviated by changing the
form of the question.
A strict regard to the rule of law in this respect is particularly im-
portant in the case of depositions, where the witness, being absent
at the trial, the form of the question can not be changed to obviate
the objection. It is fair to presume that the party who persists in
putting a leading question in a deposition, after objection is made,
trial, and not for an appeal. The refusal by the judge to admit proper evi-
dence is a fit subject for a bill of exceptions, but the mere mode of conducting
the trial is not so, and by the practice of the courts in this country could not
be introduced on a special verdict, nor in any shape brought before a court of
error. It is a generaj rule that leading questions cannot be put to a witness ;
but there are exceptions to that rule, and here it could never be made tbe
subject of a bill of exceptions, that in some particular instance a judge had
permitted leading questions to be put. If they are put when they ought not
to be, and the jury are misled by them, the verdict may be set asider but it
is no ground of going to a court of error. It is the same as with respect to
the practice of turning witnesses out of court. If after an order to tbe wit-
nesses to withdraw, one of them should remain, and the question should
arise whether he might be examined or not, a different practice might be
adopted by different judges. Some would exclude the testimony of such a per-
son ; but Mr. Baron Bayley said that he would not do so, but would fine the
witness. That would not be a proper matter of appeal. It is a matter not
of law, but of mere regulation."
That the discretion in permitting leading questions may be reviewed se>
Peebles v. O'Gara Coal Co.. 239 111. 370, SS N. E. 16G (1909).
Hint.Ev. — 21
WITNESSES (Cll. 2
believes he shall gain more by his question if the answer is admitted,
than he shall lose if the question and answer are both rejected. No
doubt or presumption should prevent their rejection in such a case.
The third interrogatory to Rowell was free from objection, as ad-
mitting a mere affirmative or negative answer. It called for and re-
ceived an answer in the language of the witness himself. But it was
a leading question because it suggested to him that the answer de-
sired related to "all but fifty acres of said lot," and assumed that the
claim inquired of related to that. What claim was made was a mat-
ter in controversy. The question should have been modified at once,
so as to obviate the objection. As that was not done the question
and answer should be disallowed.
The fifth interrogatory was leading, because it admitted the answer
yes or no. If the material point had been what line was denied, the
closing part of the question would have prevented its being leading.
The whole question together called for an answer in the language of
the witness. Eut this interrogatory, though leading, was one which
it was competent for the court to admit in the exercise of its dis-
cretion. The object of the question manifestly was to inquire what
w r as not said ; and it is not easy to conceive how such a question could
be framed without turning the witness' attention directly to the very
matter supposed not to have been said. A witness might be able to
testify that certain things were said, and that nothing more was said.
If he could not do that, no amount of testimony merely of what was
said would prove that another thing was not said, and some form of
question embracing the matter to be denied must be admissible. If
it had been admitted on this ground there would be no objection.
* * *
New trial granted.
STATE v. BENNER.
(Supreme Judicial Court of Maine, 1874. 64 Me. 2G7.)
Appleton, C. J. 90 Numerous exceptions have been alleged to the
rulings and instructions of the justice presiding at the trial of the re-
spondent. Those exceptions we propose to consider and discuss in
the order of their presentation.
I. Henry J. Motz was called as a witness by the state. The objec-
tion is taken that he was cross-examined by die attorney general, and
that leading questions were proposed to him.
The answers of a witness, honest and favorable to the party calling
him, will obviously depend on the questions proposed. But the party
calling will only propose those favorable to his interests. His inter-
will naturally he one sided and the answers partial and incom-
•o Btatemenl < r \n<l pari of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 32.°,
plete — the inevitable result of incomplete and partial inquiry. Interro-
gation ex adverso, then, is indispensable — that thereby the errors of in-
distinctness, incompleteness, or incorrectness may be removed and the
material facts developed fully, distinctly and correctly.
The witness called, being favorable to the party calling him and
dishonest, the necessity of interrogation as a means of extracting the
truth is at once perceived, and its value indefinitely increased. Is the
witness indistinct, the needed inquiries remove all indistinctness. Is he
incomplete, interrogation is the natural and obvious mode of obtaining
the desired fullness and completeness. Is he incorrect, inquiry is the
only way of detecting and rectifying incorrectness. Important as is the
whole truth to correct decision, its attainment will be endangered unless
the right of interrogation and cross-interrogation be conceded to the
parties litigant to enable them to elicit such facts as from inadvertence,
want of memory, inattention, sinister bias, or intentional mendacity-
may have been omitted.
But it may happen that the witness may be adverse in sympathy and
interest to the party by whom he is called. Cross-examination of an
opponent's witness is allowable. Why? Because, being called by him,
it has been imagined that there was some tie of sympathy or interest,
which would induce partiality on the part of the witness in favor of
the party, who called him. If the witness is from any cause adverse
to the party calling him, the same reasoning which authorizes and sanc-
tions cross-examination, more or less rigorous, equally requires it when
the party finds that the witness, whom the necessities of his case has
compelled him to call, is adverse in feeling, is reluctant to disclose what
he knows, is evasive or false. Important as interrogation may be, if
the witness is friendly, to remove uncertainty and indistinctness, and
to give fullness and clearness, doubly important is it, if the witness be
dishonest and adverse, to extract from reluctant lips, facts concealed
from sympathy, secreted from interest, or withheld from dishonesty.
Cross-examination may be as necessary to elicit the truth from one's
own, as from one's opponent's witness. When the necessity exists,
equal latitude should be allowed in the one case as in the other. The
occasion for the exercise of this right must be determined by the jus-
tice presiding. It can be by no one else. Its allowance is a matter of
discretion, and not the subject of exception.
The presiding justice, finding Motz to be an unwilling witness for
the state, allowed leading questions to be proposed ; and permitted
him to be cross-examined by the counsel calling him. This was in
manifest furtherance of justice and in entire accordance with judicial
decisions. Moody v. Rowell, 17 Pick. (Mass.) 490, 23 Am. Dec. 317;
rk v. Pease, 2 Grav (Mass. 282; Green v. Gould, 3 Allen (M
465.
II. Where a witness, called by a party, appears adverse in interest to
the party calling him, the presiding justice may, in his discretion, per-
mit the party so calling him to ask leading questions. This permission
324 WITNESSES (Ch. 2
/is discretionary on his part, and not subject to exception. The presid-
ing judge seeing and hearing the witness, and observing his manner,
is best able to determine whether he is hostile to the party calling him.
In the present case, the presiding justice did determine that Motz was
an unwilling witness, and one to whom leading questions might proper-
ly be proposed and his conclusion is not open to revision. * * *
Exceptions overruled. 91
ANGELL v, ROSENBURY.
(Supreme Court of Michigan, 1864. 12 Mich. 241.)
The plaintiff, an assignee for the benefit of creditors, brought tres-
pass against the sheriff for taking the assigned goods under process
against the assignor. The defense set up was that the assignment
was fraudulent. The plaintiff recovered in the court below. 92
Christiancy, J. * * * The next error assigned is the rejection
of the question put to the witness Hinman, asking him to state any
reason or circumstance which led him to give particular attention to
the four notes. To understand the nature of this objection, it is nec-
essary to see how the question arose. Hinman had already testified
that, in August, 1855, he was applied to by the plaintiff and Wilbur
to aid in getting a compromise with the New York creditors. He told
them that, to enable him to do so, they must make a statement of
their matters ; and they showed him four notes, as the basis of the
plaintiff's claim. In this stage of the trial, as it would seem, while
Hinman was still under examination as a witness, the plaintiff, under
a notice from the defendant to produce the notes, produced the five
notes which I have already described. The witness, after looking at
the notes, testified : "I can not state whether the notes now produced
are the same which were shown me by the plaintiff or not. If they
are, I was mistaken in the date. My recollection is, that the four $1,000
notes shown me were dated June 15th, 1842. The same notes were
soon afterwards shown me at the office of Harmon. The $750 note
has the same appearance as the note just shown me. The other four
differ, in my recollection, in the appearance of the paper and date.
Those first shown me were clean. These are more dilapidated and
worn. I gave the four notes particular attention as to their appear-
ance, the ink, and the edges." He was then asked, on the part of the
»i The judge may conduct the examination of a witness and may put lead-
ing questions, but he should not conduct the examination In that manner
where it would be Improper to permit counsel to do so. State v. Crotts, --
Wash. 246, 80 Pac. 408 (1900).
i or :i collection of the cases on the right of the judge to call and examine
witnesses and i>ut leading questions, sei notes to South Covington & O. St.
By. Co. v. stn.h, 57 L. R. A. 875 (1902); Parker v. State, L. R. A. 1916*
1190 (1915).
>s Statement o <1 flno opinion on other points omitted.
Sec. 4) EXAMINATION OP WITNESSES 325
defendant: "Will you state any reason or circumstance which led you
to do so?" This was objected to, but the grounds are not stated, and
the question was rejected.
We think the rejection of this question was erroneous. It was very
important in determining the credit to be given to the witness's recol-
lection, to know whether any, or what reason, existed at the time to in-
duce the witness to give particular attention to the appearance of the
notes. The value of his recollection would depend entirely upon the
degree of attention with which he observed the facts, and the reasons
which operated upon his mind to excite that attention, and to fix the
facts in his memory. He . should, therefore, have been allowed to
state any facts 93 which had that effect, whether relevant to the issue or
not. The rejection of the question was unfair, both to the defendant
and the witness. We see nothing objectionable in the form or substance
of the question. It was not leading; and the generality of its form
was in some measure necessary to avoid suggesting any particular an-
swer. * * *
Reversed.
COMMONWEALTH v. PHELPS.
(Supreme Judicial Court of Massachusetts, 1858. 11 Gray, 73.)
Indictment on St. 1855, c. 215, § 17, for being a common seller of
spirituous and intoxicating liquors.
At the trial in the court of common pleas in Hampden, Morris,
J., allowed the district attorney, against the defendant's objection, to
ask witnesses for the commonwealth to recur in their own minds to
their testimony before the grand jury, and then state when and how
often they had obtained intoxicating liquors from the defendant
Shaw, C. J. 94 1. It is not a regular mode of assisting the recol-
lection of a witness to recur to his recollection of his testimony before
the grand jury. If it was not true then, it is not true now; if it was
true then, it is true now, and can be testified to as a fact. Of what
importance is the fact that he had a memorandum to aid him in tes-
tifying before the grand jury? To ask what he testified to before the
grand jury has no tendency to refresh his memory. The fact of his
having testified to it then is not testimony now. It is an attempt to
substitute former for present testimony. * * * 9B
»3 But for this purpose the witness should not be allowed to detail prejudi-
cial hearsay statements. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99
(1SG8).
a* Statement condensed and part of opinion omitted.
95 But see Beaubien v. Cicotte, 12 Mich. 459 (1S64), where counsel were al-
lowed to call the attention of a witness to the notes of his former testimony
where he had apparently forgotten a date.
326 witnesses (Ch. 2
PEOPLE v. KELLY.
(Court of Appeals of New York, 18S9. 113 N. Y. 647. 21 N. E. 122.)
Ruger, C. J. 98 The defendant was indicted for the crime of mur-
der in the first degree, for killing one Eleanor O'Shea, by striking her
upon the head with a hammer, at the town of Geneva, in the county of
Ontario, on the 6th day of November, "1888. At a trial in the court of
oyer and terminer, held in said county in December, 1888, the defend-
ant was convicted of the crime charged, and, in pursuance of the pro-
visions of the Code of Criminal Procedure, as amended by chapter 493
of the Laws of 1S87, has appealed directly to this court from the
judgment entered upon his conviction. * * * The only other point
made by the appellant of any importance is that raised by the objec- '
tion to questions put to the witness Mahar by the people, respecting
testimony previously given by him before the committing magistrate
and the grand jury. Mahar had omitted to testify in detail to the move-
ments of Kelly between the time when the deceased returned to the
kitchen and the infliction of the fatal blow. With the obvious and
avowed purpose of refreshing his recollection, the district attorney
asked whether he had not previously sworn that Kelly moved coolly
across from the north-east to the south-west corner of the room,
where O'Shea stood, and also whether Kelly did not then address her
in a low and quiet tone of voice. The witness admitted that he so
testified, and, upon the further question as to whether that was the
fact, he answered that it was. This was certainly quite material evi-
dence, and, if it was true, was competent on the part of the people.
The fact that he omitted to testify to it on his direct examination
must be ascribed either to his forgetfulness or a disposition to befriend
the accused by its suppression. He had given no evidence conflict-
ing with his statement, and it tended in no degree to contradict
his testimony. The manner in which it was drawn out might af-
fect the credibility of the witness with the jury; but having affirmed
the truth of the facts, aside from his admissions as to his testimony
on the previous occasion, it was the province of the jury to give such
credit to his evidence as it was entitled to. We are of the opinion,
within the rule laid down in Bullard v. Pearsall, 53 N. Y. 230, that it
was proper for the people to refresh the recollection of the witness in
the manner pursued in this case. * * *
Affirmed. 87
»e Part of opinion omitted.
•i See comments on tiiis rase in Putnam v. TT. S., 162 U. S. 6S7, 16 Sup.
Ot. !»-'•".. 10 L. V.<\. 11 IS (1S96). See, also, MHImish v. Collier. 15 Ad. & Ellis
(N. S.) 878 (1860). Compare Com. v. Welsh, 4 Gray (Mass.) 535 (1855).
Sec. 4) EXAMINATION OF WITNESSES 327
SANDWELL v. SANDWELL.
(Nisi Prius, 1697. Holt, 295.)
Case for scandalous words.
Holt, C. J., said: Where a witness swears to a matter, he is not
to read a paper for evidence, though he may look upon it to refresh
his memory. But if he swears to words, he may read it, if he swears
he presently committed it to writing, and that those are the very words.
LA WES v. REED.
(Court of Assizes, 1835. 2 Lewin, 152.)
Alderson, B., held in this case that a witness might refresh his
memory from the notes of counsel taken on his brief at a former trial ;
and he mentioned the case of Balme v. Hutton, where a witness had
been allowed to refresh his memory from a note taken by Mr. Baron
Parke.
He, however, observed, that the witness must afterwards speak from
a refreshed memory, and not merely from the notes. 08
»8 Sir Gregory Lewin adds the following note to this case:
"Where the object is to revive in the mind of the witness the recollection of
facts of which he once had knowledge, it is difficult to understand why any
means should be excepted to whereby that object may be attained. Whether in
any particular case the witness's memory has been refreshed by the document
referred to, or he speaks from what the document tells him, is a question of
fact open to observation, more or less, according to the circumstances. But
if, in truth, the memory has been refreshed, and he is enabled in consequence
to speak to facts with which he was once familiar, but which afterwards
escaped him, it cannot signify in effect in what manner or by what means
those facts were recalled to his recollection."
"Common experience tells every man, that a very slight circumstance, and
one not in point to the existing inquiry, will sometimes revive the history of
a transaction made up of many circumstances. The witnesses who come into
the box to speak to facts of ancient date are generally schooled beforehand,
and the means employed to refresh their memory are such as are deemed best
calculated to accomplish that end. These persons afterwards swear to the
facts from their own knowledge and recollection of them, and tneir testi-
mony is received as a thing of course. Why, then, if a man may refresh
his memory by such means out of court, should he be precluded from doing
so when he is under examination in court? Bayley, J., held, that a witness
might refresh his memory from a copy of a shop book ; he having been origi-
nally acquainted with the facts themselves. 1 Lewin, C. C. 101. Siarkie on
that occasion referred the learned judge to the case of Tanner v. Taylor,
Starkie on Ev. bk. 2, p. 128, 1st Ed. (1751), where Legge, B., held to the same
effect.
"In a modern case, however, there is a dictum of Patteson, J., which di-
rectly contravenes the doctrine here contended for, and is also opposed to
the cases in the text. That learned Judge is reported to have said: 'The
copy of an entry not made by the witness contemporaneously does not seem
to me to be admissible for the purpose of refreshing a witness's memory.
The rule is, that the best evidence must be produced; and that rule appears
328 witnesses (Ch. 2
WELLMAN v. JONES.
(Supreme Court of Alabama, 1S99. 124 Ala. 580, 27 South. 416.)
DowdELL, J. 91 The contract here sued on is set out in the com-
plaint as follows: "J anuarv 13, 1893. Huntsville, Ala. We, the un-
dersigned, jointly and individually covenant and agree with Henry L.
Jones that, if he will place his brother, John A. R. Jones, in the Hagey
Institute, in the city of Huntsville, Ala., to be treated as a patient ad-
dicted to the excessive use of morphine and chloral, and the said Henry
L. Jones will pay in cash the sum of one hundred dollars to the proper
officer of the Hagey Institute, that we will return, on demand, to the
said Henry L. Jones, the said sum of one hundred dollars, provided
the said John A. R. Jones is not fully and permanently cured by the
treatment of said Hagey Institute of the use and habit of morphine
and chloral." * * *
The court also, against the objection and exception of the defendant,
after proof of loss of the original contract, permitted plaintiff's wit-
ness Matthews to refer to that portion of the complaint setting out the
contract as a memorandum to refresh the witness' memory, and also
permitted the same to be read in evidence as a memorandum of the
contract. The complaint was drawn by plaintiff's attorney, and this was
some time after the loss of the original contract. The witness testified
that some time before the suit was brought he was at the office of
plaintiff's attorney, and there dictated his recollection of the .contents
of the lost contract, and the attorney wrote the same down. He did
not identify the paper handed witness, which was the complaint, as
being the one written at his dictation by the attorney. This witness,
speaking with reference to the alleged memorandum, said : "I mean
to say that these are the words that I gave Judge Richardson to put
down. It is not my testimony that this is the paper [referring to the
complaint which he then held in his hand] that was before me at
that time. I do not know whether it is the same paper or not. I only
testify to portions of the contract according to my recollection." The
original contract is shown to have been placed in the hands of this wit-
ness under date of its execution, January 13, 1893 ; but it is not shown
how long since he had seen it when he dictated his recollection of its
contents written down by plaintiff's attorney. The complaint was
filed January 4, 1894, a year after the execution of the contract. Pre-
sumably months had elapsed at the time of the dictation since the
witness had seen the contract. Under this state of the evidence, the
to mi' to be applicable Whether a paper lie predated :is evidence in itself
mi rely to refresh the memory.' Burton v. Plummer, 2 A. & El. 841 (1834)."
in State v. Kwiatkowski, 83 N. J. Law, 650, 85 Atl. 209 (1912), it Was held
to be ii" objection to the t< stimony of a witness that he bad examined certain
notes and memoranda before appearing to testify.
»» Statement and pari of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 329
paper, not having been sufficiently identified as a memorandum made
by the witness, or by another at his dictation, could not be used for
the purpose of refreshing witness' memory as to the contents of the
lost contract, and certainly was not admissible in evidence as a memo-
randum of the contents of the lost contract. Maxwell v. Wilkinson,
113 U. S. 656, 5 Sup. Ct. 691, 28 t. Ed. 1037; Calloway v. Varner, 77
Ala. 541, 54 Am. Rep. 78; Jaques v. Horton, 76 Ala. 238; Acklen's
Ex'r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54; 15 Am. & Eng. Enc.
Law, 263. *.*'•*
Reversed. 100
DOE dem. CHURCH et al. v. PERKINS et aL
(Court of King's Bench, 1790. 3 Durn. & E. 749.)
The motion for a new trial came on the next day ; when it appeared
from the report that the title of the lessors of the plaintiff to the sev-
eral premises for which the ejectment was brought was not in dis-
pute ; but that the only question was at what time of the year the
annual holdings of the several tenants expired. That Aldridge, the
witness, whose testimony was objected to, went round with the receiver
of the rents to the different tenants, whose declarations respecting
the times when they severally became tenants were minuted down
in a book at the time ; some of the entries therein being made by
Aldridge, and some by the receiver. When Aldridge was examined
the original book was not in court ; but he spoke concerning the dates
of the several tenancies from extracts made by himself out of that book,
confessing upon cross-examination that he had no memory of his
own of those specific facts ; but that the evidence he was giving as to
ioo in State v. Patton, 255 Mo. 245, 164 S. W. 223 (1913), a witness having
apparently forgotten some of the facts, the prosecuting attorney read to him
from a paper not otherwise identified which purported to be the minutes of
his testimony before the grand jury. Faris, J.: "The last clause of the above
statement is not in accord with the view taken by Mr. Wigmore, the learned
editor of the sixteenth edition of Greenleaf on Evidence (1 Greenleaf on Evi-
dence [16th Ed.] 439c), where it is said that the memory of the witness may
be refreshed by any paper, whether the same is known by the witness to
be correct or not. This view of Mr. Wigmore has been followed by our St.
Louis Court of Appeals. Eberson v. Colonial Investment Co., 130 Mo. App.
loc. cit. 308 [109 S. W. 62 (1908)]. We do not find this statement of the learned
author and of the Court of Appeals to be borne out either by the cases which
he cites to support it, or by the great weight of the authorities which we have
examined, and a few of which we cite. Well man v. Jones, 124 Ala. 580, 27
South. 416 (1899) : Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54
(1878); Doyle v. Illinois Cent. R. Co., 113 111. App. 532 (1904); Dryden v.
Barnes, 101 Md. 346, 61 Atl. 342 (1905) ; Davis v. Allen, 9 Gray (Mass.) 322
(1857); Fritz v. Burriss, 41 S. C. 149. 19 S. E. 304 (1S94); Greiner v. Insur-
ance Co., 40 Pa. Super. Ct. 379 (1909) ; 40 Cyc. 245S. The ease with which,
as Prof. Muensterburg tells us, the human mind is influenced by suggestion,
would seem to form an insuperable psychological objection to the use of data
for this purpose, of the correctness of which the witness is ignorant."
330 witnesses (Ch. 2
those facts was founded altogether upon the extracts which he had
made from the above mentioned book. This evidence was objected
to at the time on the part of the defendants, upon the ground that, as
the witness did not pretend to speak to those facts from his own recol-
lection, he ought not to be permitted to give evidence from any ex-
tracts, but that the original book from whence they were taken ought
to be produced. The learned judge however being of a different opin-
ion, the evidence was admitted, and the plaintiff had a verdict. 1
On the following day Mr. Justice Buller read another MS. note of
Tanner v. Taylor, Hereford Spring Assizes 1756. "In an action for
goods sold, the witness who proved the delivery took it from an ac-
count which he had in his hand, being a copy 2 as he said, of the day
book, which he had left at home; and it being objected that the orig-
inal ought to have been produced, Mr. Baron Legge said, that if he
would swear positively to the delivery from recollection, and the paper
was only to refresh his memory, he might make use of it. But if he
could not from recollection swear to the delivery any further than
as finding them entered in his book, then the original could have been
produced ; and the witness saying he could not swear from recollection
the plaintiff was nonsuited." And
Lord Kenyon, C. J., said that the rule appeared to have been clearly
settled, and that every day's practice agreed with it. And that com-
paring this case with the general rule, the court were clearly of opinion
that Aldridge the witness ought not to have been permitted to speak
to facts from the extracts which he made use of at the trial.
Per Curiam. Rule absolute for a new trial. 3
MAUGHAM v. HUBBARD et al.
(Court of King's Bench, 1828. 8 Barn. & C. 14.)
Assumpsit for money had and received Plea, not guilty. At the
trial before Lord Tenterden, C. J., at the Middlesex sittings after last
term, it appeared that the action was brought to recover from the as-
signees of the bankrupt £20 paid by the plaintiff to the bankrupt before
his bankruptcy. The bankrupt being called as a witness on the part
of the plaintiff stated, that he had dealt with the plaintiff several years;
that in November 1822, £20 was received from the plaintiff, which
was not carried to the account. A rough cash-book kept by the plain-
i Statement condensed. During the course of the argument Lord Kenyon
read a manuscript note of the case, reported anonymously in Ambler, 252, ante,
P. 317.
2 See Folsom v. Apple River Log-Driving Co., 41 Wis. 60S (1877), where a
witness was allowed to use a copy of n memorandum made by him.
i in Beech v. Jones, 5 G. B. 696 (1848), it was held thai a witness who had
DO present recollection could not testify from his examination of an entry in
:i book not produced La court.
Sec. 4) EXAMINATION OF WITNESSES 331
tiff was then put into his hands; in which there was the following
entry : "4th of November 1822. Dr.— R. Lancaster. Check £20 R. L."
The bankrupt then said, "The entry of i20 in the plaintiff's book
has my initials, written at the time; I have no recollection that I re-
ceived the money ; I know nothing but by the book ; "but seeing my
initials, I have no doubt that I received the money." It was contended
that the paper on which this entry was made ought to have been stamped
as a receipt; but Lord Tenterden, C. J., was of opinion, that though
it was not itself admissible in evidence to prove the payment of the
money the witness might use it to refresh his memory ; and that his
having said that he had no doubt that he received the money was suffi-
cient evidence of the fact. A verdict was found for the plaintiff,
but liberty was reserved to the defendant to move to enter a nonsuit, if
the Court should be of opinion that this evidence ought not to have
been received.
Lord Tenterden, C. J. In order to make the paper itself evidence
of the receipt of the money it ought to have been stamped. The con-
sequence of its not having been stamped might be, that the party who
paid the money, in the event of the death of the person who received
it, would lose his evidence of such payment. Here the witness, on
seeing the entry signed by himself, said that he had no doubt that he
had received the money. The paper itself was not used as evidence
of the receipt of the money, but only to enable the witness to refresh
his memory ; and when he said that he had no doubt he had received
the money there was sufficient parol evidence to prove the payment. 4
BaylEy, J. Where a witness called to prove the execution of a
deed sees his signature to the attestation, and says that he is, there-
fore, sure that he saw the party execute the deed, that is a sufficient
proof of the execution of the deed, though the witness add that he has
no recollection 5 of the fact of the execution of the deed.
Rule refused.
* In the report of this case in 2 Man. & Ry. 5, the opinion of Lord Tenterden
is given as follows: "The bankrupt, upon looking at the plaintiff's books,
said, that seeing his own initials to the receipt there, he had no doubt what-
ever that he had received the money. I think that amounted to a statement
that he knew and recollected, independently of the book, that the money had
been paid to him. If that be so, the' question with' respect to the stamp be-
comes immaterial, because then the book may be regarded as used only for
the purpose of refreshing the witness's memory, which it was allowable to
do, though it had no stamp. If it had been wished to use the book as evidence
per se, it would undoubtedly have required a receipt stamp, because the
entry amounted to a receipt in meaning."
» Where the witness has no present recollection, he must be able to tes-
tifv that the facts were correctlv set down in the memorandum. Diamond
Glue Co. v. Wietzychowski, 227 111. 338, 81 N. E. 392 (1907).
332 witnesses (Ch. 2
HAVEN v. WENDELL et al.
(Supreme Judicial Court of New Hampshire, 1S40. 11 N. H. 112.)
Assumpsit, on a bank check, drawn by Isaac Wendell, and indorsed
by the defendants, who are partners under the firm of A. & J. Wendell.
There was also a count for money lent.
On the trial the plaintiff produced the bank check mentioned in the
first count, the signature and indorsement of which were admitted. He
also produced as a witness, John Have, who testified that he had a con-
versation with Abraham Wendell, one of the defendants, on the pave-
ment in front of the New Hampshire Bank, on the subject of this
check, some time after the failure of the defendants. He could not
now recollect the particulars of that conversation, or when it took
place, further than that said Wendell said he considered himself holden
as indorser thereon ; and that he the witness supposing the facts then
stated might be useful to the plaintiff, went immediately into the bank,
and made a memorandum of them, in writing, which he gave to the
plaintiff. That the conversation was stated when the matter was
fresh in his recollection ; and if he had been called upon, soon after,
to testify upon the subject, he should have sworn from memory to
every particular there stated.
A paper being shown to him, he said that was the memorandum,
but he could not from reading it undertake to say that he now recol-
lected the facts, or knew them, otherwise than by finding them in his
hand writing; but he had no doubt they were true, and that he should
have sworn to them from recollection at or near the time. The mem-
orandum referred to was as follows :
"Abraham Wendell said to me, this 30th day of October, 1828, that
he left, some time since, with William Haven, cashier of the New
Hampshire Bank, a check, signed by Isaac Wendell, on the Branch
Bank, Portsmouth, drawn payable in a few days, which check was in
favor of Abraham and Jacob Wendell, and indorsed by them ; that
said William Haven paid them the amount of said check, in a note
against their mother and in cash ; that at or before the time the check
was due, he called on Mr. Have, and requested, as from his brother
Isaac, that he would delay for a few days longer the presentation of
the check, which he consented to, during which delay they all failed;
that he now considered the firm of A. & J. Wendell held as indorsers
of said check. J. H."
Said memorandum, with the testimony of the witness, as before
mentioned, was admitted as evidence; to which the defendants except-
ed, and moved for a new trial.
Parker, C. J. e If a witness may use a memorandum, made by him
at the time when the facts are alleged to have taken place, for the
« Part "f opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 333
purpose of refreshing his memory only, this verdict must be set aside.
The memorandum itself was here admitted in evidence, in connection
with his testimony that he heard certain matters, that he made a
memorandum of those matters, that this is that paper, and that it is a
true statement of what then took place. The memorandum, therefore,
became part of the testimony of the witness; and the question is,
whether the paper itself may be received to show the particulars of
what then occurred, the witness testifying- that he has now no recollec-
tion of all the particulars, but that he has no doubt the facts there
stated are true, and that he should, within a short time subsequent,
have sworn to them from his recollection.
It is not to be doubted that the ruling in some cases heretofore would
exclude the testimony. But the cases on this branch of evidence have
not been uniform, and it becomes necessary to make an extended ex-
amination of some of them. * * *
These are some of the principal authorities 7 bearing upon this ques-
tion. If it be conceded that none of them come up precisely to this
case, there are several so near that the difference is hardly sufficient
for the foundation of a sound distinction.
And we are of opinion that the admissibility of the paper in evi-
dence, in connection with, and as a part of the testimony of the wit-
ness, may be established upon the soundest principles.
It is not disputed that the witness might have been admitted to tes-
tify to these facts as existing in his recollection. If the paper be au-
thentic, his record of the fact, made at the time when he was much less
liable to mistake, is much better than his recollection of the facts so
long afterwards.
It is agreed, and no doubt exists, that he miglit refer to the paper 'to
refresh his recollection, and then testify to the facts there stated, as
existing in his recollection. But if he has not a recollection without the
use of the paper, the evidence is after all derived mainly from the
paper, and is no better than his declaration that he made the paper at
the time — that he has no doubt it contains the facts as they took place —
that he should have sworn to them soon after, from memory, although
he does not now recollect them except by the paper.
So far from the admission of such testimony being dangerous, there
is less danger than in the admission of the evidence of the witness that
he recollects the facts, without the production of the paper as part of
7 In the omitted passage the court reviewed Doe v. Perkins, 3 D. & E. 749
(1790); Tanner v. Taylor, cited in Doe v. Perkins; Hart v. Wilson, 2 Wend.
(N. Y.) 513 (1S29) : Russell v. Coffin, 8 Pick. (Mass.) 143 (1829) ; Wheeler v.
Hatch, 12 Me. 389 (1835) ; Maughan v. Hubbard, 8 B. & C. 14 (1S2S) ; Burton
v. Pluinmer, 2 Ad. & E. 341 (1834); Lawrence v. Barker, 5 Wend. (N. Y.) 301
(1830); Feeter v. Heath, 11 Wend. (N. Y.) 485 (1833); Merrill v. Ithaca &
O. R. Co., 16 Wend. (N. Y.) 586, 30 Am. Dec 130 (1837) ; Sandwell v. Sand-
well. 2 Comb. 445 (1697) ; Clark v. Vorce, 15 Wend. (N. Y.) 193, 30 Am. Dec.
53 (1836); Wilbur v Selden, 6 Cow. (N. Y.) 165 (1826); Clute v. Small. 17
Wend. (N. Y.) 238 (1837); Alvord v. Collins. 20 Pick. (Mass.) 418 (1838).
334 witnesses (Ch. 2
his statement ; for the opposite party has the advantage of an inspec-
tion of the paper, and of cross examination founded upon its appear-
ance, and respecting all the particulars stated in it.
If the witness is unprincipled enough to fabricate a memorandum, or
use a fabricated paper, he can as readily swear to the facts it contains
as existing in his recollection, and that he made the paper which he
uses at the time, as he can that he made the one which he produces, and
which becomes part of his testimony by his statement that he made it
at the time, and has no doubt it contains a true statement of what took
place. If false, he may as readily be convicted of perjury in the lat-
ter case as in the former, and perhaps more readily, as the paper it-
self may assist.
A plot may be quite as easily framed, and carried into execution,
where the recollection is required to come up to the contents of the
paper, as if the paper itself may be received. There is as little difficulty
in manufacturing testimony in that way as the other.
By the opposite course of excluding the evidence, a just case is made
to depend upon the strength of memory of the witness, or upon his
being less scrupulous than another in his statements. One case is sav-
ed because the memory of the witness is strong, and another lost be-
cause the memory is less retentive. This undoubtedly is true in re-
lation to many cases, but the instances should not be multiplied with-
out necessity. One witness, after having examined the memorandum,
and having no doubt the facts are true, will finally imagine, and swear,
that he recollects them; while another, of a more scrupulous con-
science, will not go beyond the testimony given by the witness in this
present case.
If it be said that such evidence ought not to be admitted, because the
witness, however honest, may have set down but a part of what took
place, and after the lapse of time forgotten all the residue ; the same
remark applies with equal force when he uses a written memorandum,
and thereby brings his flagging recollection up to a statement of its
contents.
It will be for the jury to judge, from the matter and manner of the
testimony, as connected with all the circumstances of the case, how
much dependance is to be placed upon the testimony thus derived. 8
8 A witness was probably always allowed to rend certain memoranda to
the Jury as a part of his testimony, as appears from tbe statement by Lord
Holt in Bandwell v. SandwelL Holt, 295 (1097). But there has been more
or less uncertainty as to whether tll( ' pup'' 1 ' was technically in evidence and
whether it could be exhibited <<> the Jury in connection with the testimony.
This quibble was disposed of by the Supreme Court of Connecticut on the
following common-sense reasoning in Curtis v. Bradley, 05 Conn. !)!). ;u
Atl. 691, 28 L. R. A. 143, 48 Am. St. Bep. 177 (1894): "All courts concur In
bolding thai the witness may read the statement of such paper to the jury,
and thai the jury may draw the Conclusion that the statement so read to
them is a true statement of the facts; but some courts hold that the paper
i*. not evidence, it Beems to us to be pressing the use of a legal fiction too
far, for a court to permil the statement made by such paper to be read as
Sec. 4) . EXAMINATION OF WITNESSES 335
DYER v. BEST.
(Court of Exchequer, 18GG. 4 Hurl. & C. 1S9.)
At the trial before Channell, B., at the last Staffordshire Summer
Assizes, it appeared that the action was brought under "The Com-
missioners Clauses Act, 1847" (10 & 11 Vict. c. 16), to recover pen-
alties in respect of the defendant having, whilst disqualified, acted
as a Commissioner under "The Town of Burton upon Trent Act,
1853" (16 & 17 Vict. c. cxviii), with which "The Commissioners Claus-
es Act, 1847," is incorporated. The defendant carried on the busi-
ness of a carpenter and builder in partnership with one Bowler, and
at various times between the years 1859 and 1865 they were employed
by Commissioners to do work for which they were paid. The plain-
tiff proved that he was present at a board meeting of the Commis-
sioners in July, 1860, and that the defendant was also present at that
meeting, and acted as a Commissioner. The plaintiff also stated that
the defendant attended board meetings, and acted as a Commissioner
*&*•■>
evidence, while holding that the law forbids the admission as evidence of
the paper which is the original and only proof of the statement admitted.
In other words, it would seem as if in admitting the paper to be so read,
the court of necessity admitted the paper as evidence, and therefore, by 11 ie
concurrent authority of all courts, the paper is itself admissible."
And so in Halsey v. Sinsebaugh, 15 N. Y. 4S5 (1S57). Compare Savage, C. J.,
in Lawrence v. Barker, 5 Wend. (N. Y.) 301 (1830): "The next question is
whether the last witness called by the defendant should have been permitted
to read his memorandum or, state its contents. The rule is that a written
memorandum may be referred to by "a witness to refresh his memory, but
he must swear to the truth of the facts or his statement is not evidence. 1
Stark. 120; 3 T. R. 740. It is not sufficient for him to swear that he made
a memorandum which he believes to be true, and that he relies upon it without
any present recollection of the facts. This is the extent to which the witness
could go. The judge, therefore, properly refused to receive his statement as
evidence. The case of Tanner v. Taylor, stated in Doe v. Perkins, 3 T. R.
754 (1700) ; was an action for goods, and the witness had in his hand a copy
of the day book. Baron Legge said that if he would swear positively from
recollection, he might use the paper to refresh his recollection ; but if he
could only swear to the delivery from seeing the charges in a book, the orig-
inal entries must be produced. That case does not prove that the original
memorandum should have been received in this case. In case of goods sold
and delivered, a merchant's books are evidence to a certain extent, but that
is very different from a memorandum made by a witness, for his own conveni-
ence, not sanctioned by the parties, and where no necessity exists requiring
the admission of such a paper, as is frequently the case in respect to mer-
chants' books."
The reason does not apply to papers and memoranda merely used to stim-
ulate memory, though it might be proper for the adverse party to show
them to the jury in connection with the cross-examination. Hawken v. Daley,
85 Conn. 16, 81 Atl. 1053 (1011).
There seems to be no reason for allowing a paper to be read to the jury
where the witness testifies from present memory. People v. McLaughlin.
150 N. Y. 365, 44 N. E. 1017 (1806) ; Mattison v. Mattison, 203 N. Y. 70. 06
N. E. 350 (1011). The effect would be to corroborate the witness by the fact
that he had previously stated the same thing in writing, as to which see
section on Corroboration and Support, post, p. 412.
336 witnesses (Ch. 2
on the 3d day of September, 1862, the 6th of May, 1863, the 6th of
January, 1864, the 3d of February, 1864, and the 24th of June, 1864.
On cross-examination, the plaintiff stated that he had no recollec-
tion of the particular days on which the defendant acted as a Com-
missioner; but he had a recollection of seeing the defendant so
acting on several occasions, and he regularly took in a weekly news-
paper which contained reports of what took place at the meetings of
the Commissioners, and whenever there was a report of the proceedings
at meetings at which he was present he used to read it. He made no
memorandum at the time; but by referring to those newspapers,
which he had ever since kept, he was enabled to fix the particular
days on which the defendant acted as a Commissioner. The defend-
ant's counsel submitted that the witness was not at liberty to refresh
his memory by referring to these newspapers, but the learned Judge
overruled the objection, and admitted the evidence. 9 [A verdict was
entered for plaintiff for £200., with leave to defendant to move to
reduce the amount.]
Gray, in the following Term, moved for a rule nisi accordingly, and
also for a new trial * * * on the ground of the improper recep-
tion of evidence. The learned Judge ought not to have allowed the
witness to refresh his memory by referring to the newspapers. A wit-
ness may refresh his memory by looking at memoranda made by
himself or some person in his presence; but here the witness made
no memorandum whatever at the time he read the newspapers.
[Pollock, C. B. If a man, at the time he has a recollection of cer-
tain facts, reads a document containing a statement, which he knows
to be true, of those facts, he may again refer to it to refresh his mem-
ory, although at the time he first read it he made no memorandum.]
PER Curiam. We are all of opinion that upon this point there
ought to be no rule. 10
INSURANCE CO. v. WEIDES.
(Supreme Court of the United States, 1S71. 14 Wall. 375, 20 L. Ed. S94.)
A fire having occurred and the goods insured having been burnt,
the Weides sued the companies on the policies. On the trial it became
material to prove what was the quantity and value of the goods which
the plaintiffs had when the fire occurred. As bearing upon this, evi-
dence was introduced, without objection, tending to show that the
b Statement condensed and opinions omitted.
i fi l''or the use of newspapers or reports made by a third person, to nid 5n
recalling matters, see Minor v. Phillips, 42 111. 123 (1866); Huff v. Bennett,
6 ,\ v 337 (1852); The J. s. Werden, 219 Fed. 517, 135 C. C. A. L'G7 (191»),
in which a liir^e number of fuses are collected,
Sec. 4) EXAMINATION OF WITNESSES 337
plaintiffs took a correct inventory of their stock on the 28th of Feb-
ruary, 1866, which was correctly reduced to writing by one of them
in an inventory book; that the prices or values were correctly footed
up therein ; that at the same time the footings were correctly en-
tered by one of the plaintiffs upon the fly-leaf of an exhausted ledger,
and afterwards transferred also by one of the plaintiffs to the fly-
leaf of a new ledger ; that neither of the plaintiffs could remember
the amount of such inventory or footings, and that both the inventory
book and the exhausted ledger had been destroyed. The plaintiffs then
offered the entry of the footings upon the fly-leaf of the new ledger,
which the court, in the face of objection by the other side, received.
The reception of this evidence made the first exception. 11
Mr. Justice Strong delivered the opinion of the court.
It is contended in the first place, that there was error in the court's
receiving the entry of the footings upon the fly-leaf of the new ledger.
It will be observed that the footings upon the fly-leaf of the ledger
were not offered or received as independent evidence. They were ac-
companied by proof that they were correct statements of the values
of the merchandise, and that they were correctly transcribed either
from the inventory book or from the fly-leaf of the exhausted ledger,
both of which appear to have been originals. How far papers, not
evidence per se, but proved to have been true statements of fact, at
the time they were made, are admissible in connection with the testi-
mony of a witness who made them, has been a frequent subject of in-
quiry, and it has many times been decided that they are to be re-*
ceived. And why should they not be? Quantities and values are re-
tained in the memory with great difficulty. If at the time when an
entry of aggregate quantities or values was made, the witness knew it
was correct, it is hard to see why it is not at least as reliable as is the
memory of the witness. It is true a copy of a copy is not generally re-
ceivable for the reason that it is not the best evidence. A copy of the
original is less likely to contain mistakes, for there is more or less dan-
ger of variance with every new transcription. For that reason even a
sworn copy of a copy is not admissible when the original can be pro-
duced. But in this case the inventory book and the fly-leaf of the ex-
hausted ledger had both been burned. There was no better evidence in
existence than the footings in the new ledger. And we do not under-
stand the bill of exceptions as showing those footings to have been cop-
ied from a copy. It does not appear whether they were taken from the
inventory book or from the fly-leaf of the old ledger. And it is of
little importance, for as those entries were made at the same time, nei-
ther ought to be regarded as a copy of the other, but rather both
should be considered originals. We do not, however, propose to dis-
n Statement condensed and part of opinion omitted.
Hint.Ev. — 22
338 witnesses (Ch. 2
cuss this exception at length, for we regard it as settled by the decision
in Insurance Company v. Weide, 9 Wall. 677, 19 L. Ed. 810, that the
evidence under the circumstances was properly received. * * *
Affirmed. 12
PECK v. VALENTINE.
(Court of Appeals of New York, 1SS4. 94 N. Y. 569.)
The complaint in this action alleged, in substance, that defendant
was employed by J. Melner Peck, the original plaintiff and the present
plaintiff's intestate, as his agent to conduct and carry on the lumber
business at the lumber yard of said Peck ; that said defendant sold a
large quantity of lumber and received the pay therefor, for which he
failed to account, but embezzled and converted the same to his own
use.
The facts, so far as material, are stated in the opinion.
Andrews, J. The plaintiff, for the purpose of proving that the
defendant had not entered in the cash-book all the moneys received
by him from sales of lumber, called, one Leggett as a witness, who
testified that in July, 1879, he was employed by the plaintiff in his
lumber yard, and kept on a loose piece of paper an account of mon-
eys received by the defendant from sales of lumber from the 1st to
the 18th of that month ; that the entries were made each day contin-
uously, except Sunday, and were correct ; that he gave the paper to
the plaintiff, and that the defendant never saw it. The plaintiff testi-
fied, that he received the memorandum from Leggett, and had lost
it, but that he copied the figures correctly into a memorandum-book
(which he produced) and that the entries had not been altered. The
entries in the memorandum-book were then offered and received in
evidence, under the defendant's objection.
We think the entries were not competent evidence. The original
memorandum, if It had been produced, could have been used by Leg-
gett to refresh his recollection ; or if he had forgotten the facts stated,
and could not on seeing the memorandum recall them, yet if he had
been able to state that it was a true statement of the transactions,
known to him at the time, it could have been read in evidence in con-
nection with, and as auxiliary to his testimony. Guy v. Mead, 22 N.
Y. 462. But the adverse party on production by the witness of the
memorandum would have had the right of inspection and cross-ex-
amination, a right of great importance as a protection against fabri-
cated evidence. Stephens on Evidence, art. 136; Cowen, J., Merrill
in Brman v. State, 90 Neb. 642, 131 N. W. 2ns, Ann. Cas. 191315, hit.
(1912), it w:is held thai a reporter might make similar use of an article in a
newspaper, his original manuscript having been destroyed.
i"m the general rules requiring the production of original documents, and
excluding copy if the original is available, see chapter VI, section I.
Sec. 4) EXAMINATION OF WITNKSSM 339
v. Ithaca, etc., R. R. Co., 16 Wend. 600, 30 Am. Dec. 130. In this
case the memorandum was not produced and Leggett was not sworn
as to its contents, for the reason doubtless that he could not remem-
ber what it contained. The only evidence to connect the entries in the
plaintiff's book with the original memorandum, or establish, the amount
of money received by the defendant during the time stated, was the
oath of the defendant that the entries were a true transcript from the
memorandum in connection with the testimony of Leggett, and the
memorandum was a true statement of the transactions at the time.
The original memorandum was tfie mere declaration of Leggett in
writing of certain facts observed by him. The case is not distinguish-
able in principle from what it would have been if there had been no
memorandum and the plaintiff had been permitted to prove the oral
representations of Leggett to him of the same facts. This would be
mere hearsay, and the fact that the statement instead of being oral
was written does not alter the character of the evidence.
A similar question was presented in Clute v. Small, 17 Wend. 23S.
The plaintiff in that case sought to prove an admission of the de-
fendant made to the sheriff at the time of the service of the writ, and
was permitted to prove the contents of a letter written by the sheriff
to the plaintiff's attorneys on returning the process, in which he re-
ported the admission made by the defendant. The letter was lost
and the sheriff testified that he could not recollect the contents of
the letter or what the defendant had said, but that what he wrote was
undoubtedly as stated by the defendant. The evidence of the sheriff
was held to be inadmissible; Cowen. J., saying: "There was only
one of two ways in which he could be allowed to speak ; that is, ei-
ther from positive recollection or from seeing the letter and knowing
it to be his own statement." And again : "The inquiry here was no
more than the common one to a witness ; would you have asserted such
a matter unless it had been true? and on obtaining the witness' af-
firmative answer, going on to prove what he did say."
The substantive fact sought to be proved in this case was the re-
ceipt by defendant of moneys for which he had not accounted. It
could be proved by any competent common-law evidence. But the
original memorandum of Leggett was not original or primary evi-
dence to charge the defendant. It was not a writing inter partes, nor
one creating rights or of which rights could be predicated, as a will,
contract or deed ; nor was it a record of transactions in the ordinary
course of business, as books of account, nor a paper made by the de-
fendant, or to which he was in any way privy. It was apparently
a private statement of an exceptional transaction, made by an agent
in aid of his memory, for the information of his principal. The facts
stated were relevant and could be proved by any one who could tes-
tify to their existence, either directly, as matter of personal recollec-
tion, or from a memorandum made by him, which he could verify as
true. The entries in the plaintiff's book were not authenticated by
? >±0 WITNESSES (Ch. 2
Leggett. Whether they were a correct transcript of his original mem-
orandum depended solely upon the plaintiff's evidence. The original
memorandum was not a writing the contents which if lost, could be
proved by secondary evidence. The rule upon that subject relates to
writings which are in their nature original evidence, and in case of
loss, their contents are from necessity allowed to be proved by parol.
We think the admission of the entries from the plaintiff's book was not
justified by any rule heretofore established, and to extend the rule so
as to admit a copy of a memorandum not in its nature original evi-
dence of the facts recorded, and not verified by the party who made the
original and knew the facts, would open the door to mistake, uncer-
tainty and fraud, a consequence far more serious than would flow
from a restriction which in a particular instance might seem to pre-
sent the ascertainment of truth.
For the error in admitting the entries the judgment should be re-
versed and a new trial ordered. All concur.
Judgment reversed. 18
MAXWELL'S EX'R v. WILKINSON et al.
(Supreme Court of the United States, 1885. 113 U. S. 656, 5 Sup. Ct. 691, 2S
L. Ed. 1037.)
This is a writ of error by the executors of a former collector of the
port of New York to reverse a judgment in an action brought against
him by the defendants in error on January 11, 1855, to recover back
the amount of duties paid by them on imported iron on October 23,
1852.
Upon a second trial, the main question was whether the duties had
been paid under protest. The plaintiffs introduced evidence tending to
show that the entry of the goods, to which any protest would have
been attached, could not be found at the custom house, and called
William S. Doughty, a clerk of their consignees, who produced a
copy of a protest, purporting to be dated October 13, 1852, and to be
signed by the consignees, and having upon it these two memoranda:
First, in pencil, "Handed in on the 23rd day of October, 1852." Sec-
ond, in ink, "The above protest was handed to the collector the 23d
day of October, 1852. New York, June 16th, 1854. Wm. S. Doughty."
Doughty, on direct examination, testified that he handed the orig-
inal, of which this was a copy, to the collector on October 23, 1852.
Being then cross-examined by leave of the court, he testified that the
memorandum in ink was written by him on June 16, 1854; that he
had previously made the memorandum in pencil so as to be able to
make a statement in ink at some future time ; that he did not know
1 is if n witness never had personal knowledge of a fact, he cannot supplj
thai lack by reference to a paper or memorandum. Kaplan v. Gross, 223
Ma 83. L52, 111 x. I-:. 853 (1916).
Sec. 4) EXAMINATION OF WITNESSES 341
when he made the pencil memorandum; that he could not tell, other-
wise than as his memory was refreshed by the memorandum, that
he ever filed a protest with the collector ; that he had no recollection
now that he filed such a protest; but that he must have done it be-
cause it was his duty to do it ; and that he was willing to swear pos-
itively that he did so, because he had signed a statement to that effect,
and his habit was never to sign a statement unless it was true. The
witness then, by permission of the court, voluntarily stated as fol-
lows : "The fact that the statement was made two years after was
when there was sufficient data for me unquestionably to make that
statement at the time two years afterwards. Probably there were
memoranda which were destroyed long ago."
The defendant's counsel thereupon objected to the admission in evi-
dence of the alleged copy of the protest.
The court overruled the objection, and admitted the copy of the
protest in evidence, and, a verdict being returned for the plaintiffs, al-
lowed a bill of exceptions to its admission. 14
Gray, J. The witness, according to his own testimony, had no
recollection, either independently of the memoranda, or assisted by
them, that he had filed a protest with the collector; did not know
when he made the memorandum in pencil ; made the memorandum in
ink 20 months after the transaction, from the memorandum in pencil,
and probably other memoranda, since destroyed and not produced,
nor their contents proved ; and his testimony that he did file the pro-
test was based exclusively upon his having signed a statement to that
effect 20 months afterwards, and upon his habit never to sign a state-
ment unless it was true. Memoranda are not competent evidence by
reason of having been made in the regular course of business, unless
contemporaneous with the transaction to which they relate. Nicholls
v. Webb, 8 Wheat. 326, 337, 5 L. Ed. 628; Insurance Co. v. Weide,
9 Wall. 677, 19 L. Ed. 810, and 14 Wall. 375, 20 L. Ed. 894; Chaffee
v. U. S., 18 Wall. 516, 21 L. Ed. 908.
It is well settled that memoranda are inadmissible to refresh the
memory of a witness, unless reduced to writing at or shortly after
the time' of the transaction, and while it must have been fresh 15 in
14 Statement condensed and part of opinion omitted.
is See elaborate opinion to same effect in Putnam v. TJ. S., 162 U. S. 6S7,
16 Sup. Ct. 923, 40 L. Ed. 1118 (1S96), reviewing a large number of cases.
For a different view, see Mahoney's Adm'r v. Rutland R. Co., SI Vt 210, 69
Atl. 652 (1907), where a witness had been permitted to refer to a transcript
of his testimony on a former trial. Munson, J.:
"It remains to consider the reliability of the writing as affected by the time
when the statement of the witness was made and recorded. It seems clear
to us, notwithstanding the high authority cited by defendant's counsel in
support of his position, that the want of contemporaneous origin is not an
adequate ground for excluding a writing like this from the use in question.
Such a writing will often be a safer reminder than an incomplete private
memorandum made soon after a transaction to preserve the writer's recol-
lection of what he saw of it or the part he took in it It presents a state-
* V
1
)
342 WITNESSES (Ch. 2
his memory. The memorandum must have been "presently committed
to writing," Lord Holt in Sandwell v. Sandwell, Comb. 445 ; S. C.
Holt, 295 ; "while the occurrences mentioned in it were recent, and
fresh in his recollection," Lord Ellenborough in Burrough v. Martin,
2 Camp. 112; "written contemporaneously with the transaction," Chief
Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313; or "con-
temporaneously or nearly so with the facts deposed to," Chief Justice
Wilde (afterwards Lord Chancellor Truro) in Whitfield v. Aland, 2 Car.
& K. 1015. See, also, Burton v. Plummer, 2 Adol. & E. 341 ; S. C. 4
Nev. & Man. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v.
Chapin, 97 Mass. 72, 77; Spring Garden Ins. Co. v. Evans, 15 Md. 54,
74 Am. Dec. 555.
The reasons for limiting the time within which the memorandum
must have been made are, to say the least, quite as strong when the
witness, after reading it, has no recollection of the facts stated in it,
but testifies to the truth of those facts only because of his confidence
that he must have known them to be true when he signed the mem-
orandum. Halsey v. Sinsebaugh, 15 N. Y. 485; Marcly v. Shults,
29 N. Y. 346, 355 ; State v. Rawls, 2 Nott & McC. (S. C.) 331 ; O'Neale
v. Walton, 1 Rich. (S. C.) 234.
In any view of the case, therefore, the copy of the protest was er-
roneously admitted, because the memorandum in ink, which was the
only one on which the witness relied, was made long after the trans-
action which it purported to state ; and its admission requires that the
judgment be reversed, and a new trial ordered.
ment made by the witness when summoned to the best effort of his recollec-
tion by the caution and obligation of an oath, when bis attention was di-
rected to the material facts by competent inquiries, and when his remem-
brance was tested and corrected by an examination in the interest of the
party against whom he was called. If not his freshest recollection, it was
such as he had when called upon by the law to give his recollection, and
such that it was received by the court for use in the determination of the
case. It is hardly consistent to say that a party may have the full benefit
of the transcript on another trial if the witness dies or removes from tbe
State, but cannot be allowed the use of it to refresh a weak or confused recol-
lection.
"Tbe conflict upon this subject has centered mainly around the case of
Melhuish v. Collier, 15 Q. B. 578, 19 L. J. Q. B. 493 (1850). The most extended
review of tbe cases Is that in Putnam v. United States, 162 U. S. G87, 10 Sup.
Ct. 923, 40 L. Ed- 1118 (1896), where inquiries of this character were held
inadmissible, three of the judges dissenting. Mr. Justice While, the writer of
the majority opinion, argues that the contrary view rests upon the mistaken
construction of the English decision. But Mr. Wigmore thinks the mistaken
construction Is that presented in the Putnam Case. Section 701, note."
'I'm the same effect, Portsmouth St. Ry. Co. v. Peed's Adm'r, 102 Va. 662.
47 i 850 (1904), transcript of former testimony; Johnston v. Fanners'
Fire Ins--. i'n„ L08 Mich. 96, 64 N. W. 5 (1895), memorandum made shortly be-
fore the trial.
Sec. 4) EXAMINATION OF WITNESSES 343
III. Cross-Examination
CAZENOVE et al. v. VAUGHAN.
(Court of King's Bench, 1S13. 1 Maule & S. 4.)
Park in the last term obtained a rule nisi for entering a non suit
in this action, which was upon a policy of assurance, (in which the
plaintiffs had recovered a verdict before Lord Ellenborough, C. J., at
the London sittings,) upon an objection made to the admissibility of
the deposition of one Lewis Plitt, which had been received in evidence
for the plaintiffs ; respecting which it appeared by his Lordship's re;
port, that the plaintiffs, after the commencement of this action on
the 5th of May last filed a bill in the Court of Chancery against the
defendant, for a commission to examine witnesses abroad, and for the
examination of the said Plitt de bene esse, to which the defendant
did not put in any answer; on the 15th of May the plaintiffs obtained
an order of the Court for the examination of Plitt de bene esse, and
gave regular notice thereof to the defendant, and served him with a
copy of the interrogatories in chief ; and the witness was examined
on the evening of that day; at which time no cross-interrogatories
were filed, nor did any one on the part of the defendant attend such
examination. On the 25th of June following the plaintiffs obtained a
further order for publication, which after reciting that it was prayed
that the depositions of Plitt, taken de bene esse in the cause, under the
order of that Court might be published, in order that the same might
be read as evidence for the plaintiffs at the trial of this and other ac-
tions mentioned in the bill ; the order then proceeded thus, "where-
upon and upon hearing counsel for the defendant, this Court doth
order that the depositions of L. Plitt in this cause be forthwith pub-
lished." On the day after his examination Plitt, who was a foreigner,
left London for the coast, from whence he embarked in a few days for
Sweden, where he still remains.
Lord Ellenborough, C. J. 16 Perhaps it may be as well to state
what the rule of the common law is upon this subject, which puts an
end to the question. The rule of the common law is, that no evi-
dence shall be admitted but what is or might be under the examina-
tion of both parties ; and it is agreeable also to common sense, that what
is imperfect, and, if I may so say, but half an examination, 'shall not
be used in the same way as if it were complete. But if the adverse
party has had liberty to cross-examine, and has not chosen to exer-
cise it, the case is then the same in effect as if he had cross-examined ;
but otherwise the admissibility of the evidence would be made to de-
pend upon his pleasure, whether he will cross-examine or not ; which
would be a most uncertain and unjust rule. Here then the question is
i« Opinions of Le Blanc and Bayley, JJ., omitted.
344 WITNESSES (Ch. 2
whether the defendant had an opportunity of cross-examining. Now
it appears that the plaintiffs filed their bill for the express purpose
of examining the witness; and when they obtained the order for his
examination, gave the defendant a regular notice of it, and of the
interrogatories intended to be put to the witness. But it is said that
the defendant had no time to file cross-interrogatories, and therefore
the notice was of no use; yet if he had intimated a wish to cross-
examine, and addressed himself to the Court praying for further time
for that purpose, there can be no doubt that he might have obtained
it ; but he contents himself simply with paying no attention to the no-
tice. Then comes the order for publication, which is obtained, as it
appears from the terms of the order after hearing counsel on the part
of the defendant, who therefore had an opportunity of shewing cause
against it. The order for publication recites, "that it was prayed that
the depositions of the witness may be published in order that the same
may be read as evidence for the plaintiffs at the trial," and directs
as follows: "Whereupon this Court doth order that the depositions
be forthwith published." The order therefore purports in its manda-
tory part, to act upon and adopt the purpose for which it is prayed in
the reciting part; i. e., the special purpose of having the deposition
read in evidence at the trial ; for it is not limited by the Judge who
directed it, to any object short of that for which it was prayed. I
must conclude then that the Judge was satisfied before he directed such
order to be made, that the adverse party had all the liberty to cross-
examine which the practice of that Court requires ; and upon the prin-
ciple of the common law I have already stated that there is no objec-
tion. 17
RUSH v. SMITH.
(Court of Exchequer, 1834. 1 Cromp. M. & R. 94.)
Trespass for seizing and carrying away two horses and certain other
property of the plaintiff. Plea — Not guilty.
At the trial before Vaughan, B., at the last Lent Assizes for the
county of Suffolk, the officer who had made the distress for which this
action was brought, was subpoenaed to produce the warrant of distress,
and, being put into the box, was by mistake sworn ; and the following
question was put to him by the plaintiff's counsel — "Were you employ-
ed as bailiff, and had you any warrant?" but no answer was made.
Storks, Serjt., for the defendant, insisted on his right to cross-examine
the witness, as he had been sworn; but th,e learned Judge ruled, that,
as he had not been examined, such right did not exist; and Storks
17 Modern Btatutes frequently prescribe the notice to be given to the adverse
party on the taking of depositions; In such cases the party cannot he treated
us waiving cross-examination, in i lie absence of proper notice, unless he ac-
tually attends the proceeding. — A'd.
Sec. 4) EXAMINATION OF WITNESSES 345
afterwards called him as his own witness. A verdict having 1 been found
for the plaintiff, Storks obtained a rule for a new trial, on the ground
that he had been improperly excluded from the cross-examination of
this witness.
Alderson, B. 18 The whole evidence has been fairly laid before the
jury, though not in the order contended for by the defendant ; and that
being the case, there is no ground for disturbing the verdict. I do not
say how I should have ruled had the question arisen before me. The
practice is now well settled, that, where you call a witness under a
subpoena duces tecum, and he produces the required documents, which
he is bound to do at his peril, and you do not examine him, but identify
the documents by other witnesses, the person producing the documents
is not subject to cross-examination. I ruled accordingly in a case which
occurred before me at Carlisle. Here, the witness was merely called
for the purpose of producing the warrant.
Rule discharged.
GALE v. STATE.
(Supreme Court of Georgia, 1910. 135 Ga. 351, 69 S. E. 537.)
Lumpkin, J. 19 Prince Gale was convicted of the murder of Calvin
Brown, and upon recommendation of the jury, was sentenced to life
imprisonment. He moved for a new trial, which was refused, and he
excepted.
Pending the cross-examination of a witness for the state, she col-
lapsed physically and had to be taken from the courtroom. Just be-
fore she was removed from the stand, she did not answer several ques-
tions of the cross-examining attorney. This, however, was apparent-
ly the result of her condition, rather than of contumaciousness. The
presiding judge endeavored to compel her to answer, but she seemed to
be unable to do so. The judge had a physician called, who examined
the condition of the witness and reported that she would be unable to
testify further that day. This was about the middle of the afternoon,
and the court took a recess until next morning. On the reconvening
of court next day the witness was not present. The testimony of the
physician and other evidence was heard, from which the presiding
judge became satisfied that the witness was still unable to testify, and
that it was entirely uncertain whether she would be able to do so. The
judge then caused the jury to retire from the courtroom and stated to
counsel for defendant, in the hearing of the latter, that a mistrial would
be granted, if the defendant desired it. Defendant's counsel stated that
a mistrial was not desired, and the case proceeded; the judge allowing
the evidence of the witness, so far as given, to stand and refusing to
is Opinion of Gurney, B., omitted.
i»Part of opinion omitted.
346 WITNESSES (Ch. 2
rule it out. A number of the grounds of the motion for a new trial
arise out of this incident, an account of which appears in a note ap-
pended by the judge to the motion.
Undoubtedly the right of cross-examination is a valuable right, and,
if it be improperly denied, a reversal must result. There is authority
in England to the effect that 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 ; but it has been said that in
this country the rule is different, where there has been no opportunity
for cross-examination. Clark's Crim. Proc. 549; Stephen's Dig. Ev.
(Beer's Ed.) 434; Rex v. Doolin, 1 Jebb. Cr. Cas. 123; 8 Enc. PI. &
Pr. 99. In 2 Wigmore on Evidence, § 1390, p. 1742, it is said:
"Where the witness' death or lasting illness would not have interven-
ed to prevent cross-examination but for the voluntary act of the wit-
ness himself or the party offering him — as, by a postponement or oth-
er interruption brought about immediately after the direct examination
— it seems clear that the direct testimony must be struck out. Upon the
same principle, the same result should follow where the illness is but
temporary and the offering party might have reproduced the witness
for cross-examination before the end of the trial. But, where the
death or illness prevents cross-examination under such circumstances
that no responsibility of any sort can be attributed to either the wit-
ness or his party, it seems harsh measure to strike out all that has been
obtained on direct examination. Nevertheless, principle requires in
strictness nothing less. The true solution would be to avoid any in-
flexible rule, and to leave it to the trial judge to admit the direct ex-
amination so far as the loss of cross-examination can be shown to him
to be not in that instance a material loss. Courts differ in their treat-
ment of this difficult situation, except that, by general concession, a
cross-examination begun but unfinished suffices if its purposes have
been substantially accomplished. Where, however, the failure to ob-
tain cross-examination is in any sense attributable to the cross-examin-
er's own consent or fault, the lack of cross-examination is, of course,
no objection — according to the general principle (ante, section 1371)
that an opportunity, though waived, suffices." This is quoted some-
what at length on account of the clearness with which the author has
stated his views, and also because of the collection of authorities in the
note, among them being Randall v. Atkinson, 30 Ont. 242; Scott v.
McCann, 76 Md. 47, 24 Atl. 536; Fuller v. Rice, 4 Gray (Mass.) 343;
Lewis v. Insurance Co., 10 Gray (Mass.) 508, 511; People v. Kindra,
102 Mich. 147, 151, 60 N. W. 458. See, also, 1 Gr. Ev. (16th Ed.) §§
163c, 163d, p. 280.
In People v. Cole, 43 N. Y. 508, where, on a trial for larceny, the
wife of the prosecutor, having given material evidence, on behalf of
the people Oil her direct examination, immediately went into convul-
iona before the prisoner had an opportunity to cross examine her, and
so remained until the close of the trial, it was held to be error to permit
Sec. 4) EXAMINATION OF WITNESSES 347
her evidence to go to the jury. This case is often cited. From the
report of facts it appears that counsel for the defendant called for the,
production of the witness in court for examination, moved that her
evidence be stricken out, asking a postponement of the trial until she
should recover, and asked that the prisoner be discharged. Each of
these motions was overruled. In Sturm v. Atlantic Mut. Ins. Co., 63
N. Y. 77, the same court said : "It may be taken as the rule that where
a party is deprived of the benefit of the cross-examination of a witness,
by the act of the opposite party, or by the refusal to testify or other
misconduct of the witness, or by any means other than the act of God,
the act of the party himself, or some cause to, which he assented, the
testimony given on the examination in chief may not be read." See,
also, Bradley v. Mirick, 91 N. Y. 293 ; Hewlett v. Wood, 67 N. Y. 394.
We will not stop to discuss the difference between common-law and
equity practice.
It is clear that, while the right of cross-examination is not to be
violated, yet it may be waived expressly, or by the conduct of the par-
ty entitled to it ; and that (in the language of Prof. Wigmore), if "the
failure to obtain cross-examination is in any sense attributable to the
cross-examiner's own consent or fault, the lack of cross-examination
is of course no objection."
When the witness collapsed during the progress of the cross-exam-
ination, there was no error in having her removed from the stand and
examined by a physician, and suspending the trial until the next day,
upon hearing his testimony in regard to her condition. When court re-
convened next day, there was no error in hearing evidence touching
her condition, she not being present ; nor, under the evidence adduced,
can we say that the court did not decide properly that she was unable
to return to the courtroom and testify, and that it was uncertain
when she would be able to do so. She was the principal witness for
the state, being an eyewitness to the commission of the homicide. The
court was thus, in the expressive language of a distinguished Ameri-
can, confronted with a condition, not a theory. It was impracticable
to suspend the case indefinitely. No motion for a postponement was
made by counsel for the defendant, as was done in People v. Cole, su-
pra. Counsel for the accused asked that the entire previously given evi-
dence of the witness should be ruled out, and that a verdict be direct-
ed finding the accused not guilty ; the witness being the only one intro-
duced by the state in chief. The presiding judge recognized the right
of cross : examination, and did not desire to cut off such right or to
force the accused to proceed with the trial under such circumstances.
What appeared to him to be the only practicable method of accomplish-
ing that result was to declare a mistrial, if the defendant desired it.
This would have resulted in starting the trial afresh at a later date.
If the state could not then have produced the witness, the conse-
quences of the inability would have fallen upon it. If it did pro-
duce her, she would have been subject to cross-examination. But
348 WITNESSES (Ch. 2
this was not what the defendant desired. His counsel asked for no
postponement, and announced that he did not want a mistrial. What
he evidently wanted was for the case to terminate, when it was im-
possible to cross-examine the witness, to have the main evidence for
the state ruled out, and for an acquittal to result because of the illness
of the witness.
The severity of punishment for felonies which was inflicted in Eng-
land at one time (when they were generally punishable by death) be-
gat in practice certain technical loopholes for escape for criminals, in
no way affecting the merits of the case. This has, to some extent at
least, passed away, save where rules of procedure have been crystallized
by constitutional provisions, or legislative enactments, or by the deci-
sions of courts of last resort. But we think that neither in England
nor in America have the decisions on the subject of interruption of an
examination by sickness or death carried the rule to the extent contend-
ed for in this case. Every person accused of crime is entitled to a fair
and impartial trial, according to the rules of law. But an accused per-
son is not entitled to be set free, regardless of his guilt or innocence, be-
cause of a providential interference with the cross-examination of the
state's principal witness, and the unwillingness of the defendant to ac-
cept a reasonable method of securing a complete cross-examination.
When, through his counsel, the accused announced that he did not
want a mistrial, which appeared from the evidence to be the only meth-
od by which the witness could be again produced and examined, we
think that he waived the right, or at least that his conduct was such
as to obstruct the possibility of its exercise. Under the circumstances,
the court did not err in refusing to strike the evidence which had been
given by the witness for the state and to direct a verdict for the ac-
cused.
3. After the trial proceeded, with the evidence of the witness re-
maining in, the judge correctly ruled that it was for the jury to deter-
mine the weight to be given to it. The case was not one for the ex-
clusion of a witness as incompetent to testify. * * *
Judgment affirmed. 20
20 in Reg. v. Mitchell, 17 Cox, C. C. 503 (1S!>2), it was held by Cave, J., that a
deposition taken by the examining magistrate could not be read at the trial.
where cross-examination was prevented by the sudden illness and death of
the witness.
In Sperry v. Moore's Estate, 42 Mich. 353, 4 N. W. 13 (1880). the direct
examination was excluded where cross-examination was postponed at the re-
( j in-- 1 of (Ik; party offering the witness and the witness died in the interim.
In Wray v. State, L54 Ala. 36, 45 South. 697, 129 Am. St. Rep. 18, 16 Ann.
362 (1908) the condition of the witness was such as to make cross-exami-
nation dangerous to his life, and it was held that, the defendant was justified
in refusing to cr< inline, and the direct examination should have been
tided.
In State v. O'Connor, 105 Mo. 121, 10 S. W. 510 (1891), cross-examination
was prevented by the action of the court in committing the witness, and this
was held error, in Puller v. Rice, 4 Gray (Mass.) 843 (i sr»r»), it was held
Sec. 4) EXAMINATION OF WITNESSES 349
SCOTT v. BASSETT et al.
(Supreme Court of Illinois, 1898. 174 111. 390, 51 N. E. 577.)
Ejectment for a tract of land. The plaintiff, in order to lay the
foundation for secondary evidence of the contents of certain deeds,
was sworn and testified as to his lack of knowledge of the where-
abouts of the originals. 21
Mr. Justice Magruder. * * * We are also of the opinion that
the trial court erred in refusing to allow the defendant below to cross-
examine the appellee Bassett when he was testifying upon this subject.
Section 36 provides that any party to the cause, or his agent or attor-
ney in his behalf, shall orally in court, or by affidavit to be filed in
the cause, testify and state under oath that the original is lost, etc. To
lay a foundation for the introduction of the record or a certified copy
of the deed, the party has his option either to file an affidavit, or to take
the stand and testify orally in court. In the present case the appellee
Bassett, instead of filing an affidavit as provided in section 36, was
sworn as a witness, and gave his evidence orally in court. After he
gave his evidence, the record shows that defendant's counsel said, "We
desire to cross-examine this witness." The court replied, "I don't
think you have a right to cross-examine." Defendant excepted to the
ruling of the court forbidding him to cross-examine the witness. We
think this ruling was erroneous. We know of no reason why a wit-
ness testifying upon the subject here indicated, in behalf of one
party, is not subject to cross-examination by the opposite party. When
one of the appellees voluntarily placed himself upon the witness stand,
instead of filing an affidavit as he might have done, counsel for the de-
fendant had a right to test the correctness and accuracy of his state-
ments by a proper cross-examination.
For the reasons above indicated the judgment of the circuit court
is reversed, and the cause is remanded to the circuit court. Reversed
and remanded. 22
that the testimony might be considered where there had been a substantial
cross-examination, the completion of which was prevented.
It seems that in chancery the deposition was admissible, though cross-exam-
ination had been prevented by the illness or death of the witness. Scott v.
McCann, 76 Md. 47, 24 Atl. 536 (1892). In some of the chancery cases the rul-
ing is based on the doctrine of waiver by consenting to the delay. Celluloid
Mfg. Co. v. Arlington Mfg. Co. (C. C.) 47 Fed. 4 (1891).
For a collection of cases on the general subject, see note to Wray v. State,
15 L. R. A. (N. S.) 493 (1908).
2i Statement condensed and part of the opinion omitted.
22 For the contrary view, see Com. v. Morrell, 99 Mass. 542 (1808).
Prior to the statute referred to in the principal case, it had been held
that a party to the action, who was incompetent to testify in the case, might
from necessity make an affidavit as to the loss of a document, but that this
exception could not be extended to a third person who was competent. Beck-
er v. Quigg, 54 111. 390 (1870).
350 WITNESSES . (Ch. 2
DEAN AND CHAPTER OF ELY v. STEWART.
(Court of Chancery, 1740. 2 Atk. 44.)
Lord Chancellor 23 laid down the following rules in this cause:
Where the lease of a dean and chapter are of long standing, and
have been continued down to this time without any variation as to
the form, they cannot have a decree in this court for a specifick per-
formance of covenants for repairs, against the present tenants, but
must be left to their legal remedy of an action at law for a non-per-
formance.
Where at law 2 * a witness is produced to a single point by the plain-
tiff or defendant, the adverse party may cross-examine, as to the same
individual point, but not to any new matter; so in equity, if a great
variety of facts and points arise, and a plaintiff examines only as to
one, the defendant may cross-examine to the same point, but cannot
make use of such witness to prove a different fact. * * *
23 Part of opinion omitted.
24 It seems probable that Lord Hardwicke was mistaken as to the practice
at law, since the text-writers and nisi prius cases seem to take it for granted
that the cross-examination might extend to any fact relevant to the case.
The editor has not been able to find any case where the question came before a
court in banc. The practice in the trial courts is indicated by the follow-
ing case:
Dickinson v. Shee, 4 Espinasse, 67 (Nisi Prius. 1801): "Assumpsit for serv-
ant's wages.
"Plea of non assumpsit as to all except £5. 5s., and as to that sum a tender.
"To prove the plaintiffs case, his counsel called a servant who had lived in
the defendant's family. She was examined, cross-examined, and proved the
plaintiffs service, so as to entitle him to recover.
"When the plaintiff had finished his case, the defendant's counsel was
proceeding to prove the tender. A witness was called, who failed in doing
it; so that it became necessary to call back the servant who had been first
called by the plaintiff, to prove the tender.
"Garrow, for the defendant, was proceeding to put this question as a lead-
ing one, 'Did you not see your master tender the plaintiff the sum of £5. 5s.
on account of his wages?' "
"Mingay, for the plaintiff, objected to this mode of examining the witness,
contending, that the witness having been examined, cross-examined, and quit-
ted, by being brought back to be examined, to prove the defendant's plea,
she should be examined as a witness called in chief to prove the issue; and
that the question should not be put in that leading shape.
"Lord Kenyon ruled: That the witness having been originally called by
the plaintiff, and examined as his witness, the privilege of the defendant
to cross-examine, remained in every st:ige of the cause, and for every pur-
pose; and that the question was therefore properly put by the defendant's
counsel."
Sec. 4) EXAMINATION OF WITNESSES 351
t
ELLMAKER v. BUCKLEY.
(Supreme Court of Pennsylvania, 1S27. 16 Serg. & R. 72.)
Writ of error to the District Court of Lancaster county, in an ac-
tion of debt on an award of arbitrators, brought by Daniel Buckley,
the defendant in error, against Leonard Ellmaker, the plaintiff in
error.
The plaintiff, having on the trial in the court below, proceeded with
his proof to establish the existence and loss of the award, and evidence
to supply that loss by the examination of the referees, the defendant's
counsel offered to cross-examine the witnesses on the subject-matter
of this suit, and in avoidance of the award, before he had opened
his defence. This being opposed by the plaintiff's counsel, the court
was of opinion that the defendant was not entitled to cross-examine
the plaintiff's witnesses before he had opened his defence, to which the
counsel of the defendant excepted. 25
Gibson, C. J. * * * The next bill of exceptions brings into ques-
tion the right of a party to introduce his case, by .cross-examining
the adverse party's witnesses, and before he has opened it to the jury.
It is laid down, that in cross-examinations, great latitude is allowed
in putting questions; but that relates to the manner, and not to the
matter. A witness may not be cross-examined to facts which are
wholly foreign to the points in issue (and I would add, to what he has
already testified), for the purpose of contradicting him by other evi-
dence. And here I take occasion, in broad terms, to dissent from the
doctrine broached in Mr. Phillip's Law of Evidence, 211, that a witness
actually sworn, though not examined by the party who has called
him, is subject to cross-examination by the adverse party; and that the
right to cross-examine is continued through all the subsequent stages
of the cause, so that the adverse party may call the same witness to
prove his case, and for that purpose, ask him leading questions. In
respect to the first of these two propositions, Mr. Phillips himself
explicitly and truly states, that the use of the cross-examination is tcj
sift the evidence and try the credibility of the witness, but in this view,'
it would be palpably absurd, when applied to a person who had given
no evidence at all. And in regard to the second, the law will not in-
flexibly infer that a witness is a willing one, merely because he is
produced by the party who thinks his evidence material; such an
inference would be neither practically nor theoretically true. It is not
to be presumed, that a party is in a condition to prove his case by the
testimony of his friends; on the contrary, he is under the necessity
of resorting to those who may happen to know something of 'he
transaction, and these are for the most part just as likely to be his
enemies. And the bias supposed to be created by being called to Hs-
25 Statement condensed and part of opinion omitted.
352 witnesses (Ch. 2
tify on one side, is too slight, to serve as the foundation of a rule un-
limited in its extent. Certainly, no bias is to be presumed, after the
witness has been called by both parties, as he undoubtedly is, when
produced a second time, not for the legitimate purposes of a cross-
examination, but to testify to new matter on the adverse part; at
least, it would be unreasonable, to raise such a presumption against
a party who is the first to use the testimony of the witness, only
because he is compelled to do so by a necessity arising out of the
order of proof. In ordinary cases, the witness may be cross-examined
by the party adverse to him, whose witness he is at the time, and
even then, only to discredit him, or to bring out something supposed
to be withheld ; but -under special circumstances, such as an apparent
unwillingness to testify frankly and fully, the court may, at its dis-
cretion, suffer the inquiry to take the shape of a cross-examination,
without distinction as to the party by whom the witness is called ;
and for myself, I would not, without further consideration, pro-
nounce the exercise of the discretion, depending as it does on cir-
cumstances which cannot be fully made to appear in a court of error,
to be a- legitimate subject of a bill of exceptions. If, then, a party
may not prove his case by evidence extracted on a cross-examina-
tion, after he has proposed his case to the jury, a fortiori, he may not
do so before.
Judgment affirmed. 28
se in Floyd v. Bovard, 6 Watts & S. (Pa.) 75 (1843), the same Judge ex-
pounded the subject as follows: " * * * The difficulty is to find a rea-
son for those English decisions which hold the parties to a different course,
and allow the witness to be cross-examined to every transaction within his
knowledge in the hands of the party who is first compelled to call him. This
would seem to be foreign to the end of a cross-examination, which is not to
give the party an advantage in the manner of introducing the facts of his
case, but to test the credibility of the witness as to what he has testified; for,
it is said, that he shall not be cross-examined to collateral facts, or to mat-
ters unconnected with the subject of inquiry, because it would lead to compli-
cation and prolixity (1 Stark. Ev. 154); and, I may add, that to reward a
party with the privilege of putting leading questions for bringing forward a
branch of his case out of its order, would reward him for throwing the cause
into confusion. Where the testimony of a witness is required to establish a
fact which is part of the plaintiff's case, and also another fact which is pari
of the defence, it is a dictate of justice that no advantage be given to either
party in the manner of eliciting it But an advantage is, in truth, given, and
for no adequate reason, when a party is allowed to bring out his part <>f
the case by cross-examination, merely because the opposite party nad been
p< lied to call the witness in the first instance. In Res v. Brooke, 2 Stark.
Oa. 17:: (1819), and Phillips v. Earner, 1 Esp. Ca. 357 (1795), the witness was
allowed to be cross-examined because he had been merely sworn, though he
□ bad not been examined. The object could not have been to sift what
he had said, tor in- had said nothing; or to test his credibility, for it had no
connection with anything that had transpired in the cause. There ought to
be better authority lor such a course, than one or two hasty decisions of a
single Judge in the course of a trial. But (he authority of these NMsi Prius
q to its center by Reed v. James, 1 stark. Oa. L32 (1815), Davis
i Moody & Mai. 543 (1829), and i v. Smith, i Stark. Ev, 162,
'n' <^'S2<. it would be better to Bay that each party should call the
SeC. 4) EXAMINATION OF WITNESSES 353
BEAL v. NICHOLS.
(Supreme Judicial Court of Massachusetts, 1S54. 2 Gray, 2G2.)
At the trial in the court of common pleas, before Bishop, J., of an
action of tort for the conversion of certain castings and wrought
iron, the defendants, in order to prove the execution of two writ-
ten contracts between the plaintiff and the defendants, the signatures
to which the plaintiff refused to admit, were compelled to call the at-
testing witness, and called him for this purpose only, and asked
him no other questions. "The plaintiff then proceeded to examine the
witness upon other independent matters, having no reference to the
execution of said contracts, and which did not take place at the
time of execution. After this examination by the plaintiff, the de-
fendants proposed to cross-examine the witness upon the new mat-
ters upon which he had been examined by the plaintiff. To this
the plaintiff objected, and the court ruled, .as a matter of law, that
the defendants had no right so to cross-examine." The jury re-
turned a verdict for the plaintiff, and the defendants excepted to this
ruling.
Bigelow, J. We see no valid reason for changing the rule, as it
has long been settled and practised upon in this commonwealth, that
a party calling a witness, even for formal proof of a written instru-
ment, or of other preliminary matter, thereby makes him his wit-
ness. In such case, he cannot be permitted to impeach his general
character for truth. Brown v. Bellows, 4 Pick. 194; Whitaker v.
Salisbury, 15 Pick: 544. Nor can he put leading questions to him,
unless permitted so to do by the court in the exercise of a sound
discretion. Moody v. Rowell, 17 Pick. 498, 499, 28 Am. Dec. 317.
It follows that the adverse party has the right to cross-examine
the witness upon all matters material to the issue. Experience has
shown that this rule is convenient and easy of application in prac-
tice, and works no disadvantage to the party who produces a wit-
ness. On the other hand, a different rule, by making it necessary
for the court, during the examination of a witness, constantly to de-
termine what is or is not new matter upon which the opposite party
has the right to put leading questions, leads to confusion and delay
in the progress of trials. The ruling of the court below in the pres-
ent case was in conformity with our well established practice.
The argument, by which the counsel for the plaintiff sought to sus-
tain the exceptions, that the judge declined to exercise his discretion
concerning the right of the plaintiff to put leading questions to the
witness to serve his turn, and make him his own for the time being, than to
entangle the justice of the case, in those distinctions with which the English
Judges have surrounded it. * * * "
Hint.Ev.— 23
354 WITNESSES (Ch. 2
witness, seems to us to be untenable. The ruling was not that the court
might not, in its discretion, permit the witness to be so examined by
the party producing him ; but that it could not be claimed as a matter
of legal right.
Exceptions overruled. 27
HOUGHTON v. JONES.
(Supreme' Court of the United States, 1SG3. 1 Wall. 702, 17 L. Ed. 503.)
On writ of error to review a judgment in ejectment in favor of the
plaintiff, rendered by the Circuit Court for the Northern District of
California. 28
Mr. Justice Field. * * * It appears that the subscribing wit-
ness to the deed introduced was present in court during the trial, and t
was examined with reference to certain matters, but not touching the
execution of the deed. The defendant thereupon claimed the right
to cross-examine him with reference to such execution. The court held
that the defendant must, for that purpose, call the witness, and could
not properly make the inquiry upon the cross-examination. In this
particular the ruling of the court below was correct. The rule has
been long settled, that the cross-examination of a witness must be lim-
ited to the matters stated in his direct examination. If the adverse
party desires to examine him as to other matters, he must do so by
calling the witness to the stand in the subsequent progress of the
cause.
Judgment affirmed. 29
27 in Webster v. Dee, 5 Mass. 334 (1809), Parker, C. J., stated the rule as
follows:
"The first objection made to the verdict by the defendant is. that it was
not competent for the plaintiff to cross-examine Drummond, whether the note
was or was not submitted to the referees, as he was interested in that ques-
tion.
"It is true that Drummond was an interested witness; and if the plaintiff
had produced him, and the defendant had objected to his being sworn, the
objection must have prevailed. But a witness may, if he consents, testify
in t his own interest. In this case, when Drummond was produced by the
defendant, the plaintiff could not object, for the witness was int. 'rested thai
the plaintiff should recover; and as Drummond did not object, he was very
perly admitted. As he was sworn in chief, the defendant having admit-
ted his competency, and having waived all objections to his credit by pro-
ducing him, the plaintiff might \<.-vy properly cross-examine him as to all
matters pertinenl to the issue on trial. We are therefore of opinion, i hat
re Is no weight in this objection."
• question was elaborately considered by Justice Shaw in Moody v.
Roweil, 17 Pick. 490, lis Am. Dec. - - ;i7 (1835), and the same conclusion reached.
-^Statement condensed and part of opinion omitted.
20 The reporter's footnote cites Philadelphia & T. R. Co. v. Stimpson. n
Pet 1 18, l" L. i 'i. 535 (18 10), in which Justice Story made the following Btato-
menl ■ rule: "Bui LI la now Baid, that n vidence was in fad offered
rebutti Qg certain slatemenls made by one
ROSS Winans, a will lied by the defendants, in his answers upon hie
Sec. 4) EXAMINATION OF WITNESSES 355
cross-examination by the plaintiff's counsel. Now, this purpose is not neces-
sarily, or even naturally, suggested by the purpose avowed in the record. Up-
on his cross-examination, Winans stated: 'I understood there were arrai
ments made with the Baltimore company. I heard the company paid .^."i.OOO.'
Now, certainly these statements, if objected to by the defendants, would have
been inadmissible upon two distinct grounds: (1) First, as mere hearsay;
(2) and secondly, upon the broader principle, now well established, although
sometimes lost sight of in our loose practice at trials, that, a party has no
right to cross-examine any witness except as to facts and circumstances con-
nected with tbe matters stated in his direct examination. If he wishes to
examine him as to other matters, he must do so by making the witness his own,
and calling him, as such, in the subsequent progress of the cause."
This was probably based on Ellmaker v. Buckley, 16 Serg. & R. (Pa.) 72
(1S27) cited in the brief for the defendant in error.
Clifford. J., in Wills v. Russell, 100 U. S-. 621, 25 L. Ed. 607 (1879):
"Testimony was introduced by the plaintiffs to prove that they naid the
duties, and they read the protest in evidence to show that they had complied
with that condition precedent to a right to recover back the amount paid.
Witnesses were called by them to prove payment and protest; and one of
them having testified to the payment of the duties, and to the fact of pro-
test and appeal, the defendant claimed the right to cross-examine him as to
whether jute rejections were a vegetable substance similar to the articles
enumerated in the second clause of the eleventh section of the Tariff Act,
under which the duties were exacted. Objection was made by the plaintiffs;
but the court overruled the objection and admitted the evidence. Exception
was taken by the plaintiffs to the ruling of the court, and that exception
constitutes the basis of the first assignment of error.
"Authorities of the highest character show that the established rule of
practice in the Federal courts and in most other jurisdictions in this country
is that a party has no right to cross-examine a witness, without leave of
the court, as to any facts and circumstances not connected with matters stated
in his direct examination, subject to two necessary exceptions. He may ask
questions to show bias or prejudice in the witness, or to lay the foundation
to admit evidence of prior contradictory statements. Subject to those excep-
tions, the general rule is that if the party wishes to examine the witness
as to other matters, he must in general do so by making him his own witness
and calling him as such in the subsequent progress of the cause. The Phil-
adelphia & T. Ry. Co. v. Stimpson, 14 Pet. 44S, 459 [10 L. Ed. 535 (1840)] ;
Houghton v. Jones, 1 Wall. 702, 706 [17 L. Ed. 503 (1863)] ; 1 Greenl. Evid.
§§ 445-447 ; 1 Whart. Evid. § 529.
"It has been twice so ruled by this court, and is undoubtedly a valuable rule
of practice, and one well calculated to promote regularity and logical order
in jury trials; but it is equally well settled by the same authorities that the
mode of conducting trials, and the order of introducing evidence, and the
time when it is to be introduced, are matters properly belonging very large-
ly to the practice of the court where the matters of fact are tried by a jury.
Both of the cases referred to by the plaintiffs show that the judgment will
not be reversed merely because it appears that the rule limiting the cross-
examination to the matters opened by the examination in chief was applied
and enforced ; but those cases do not decide the converse of the proposition,
nor is attentiou called to any case where it is held that the judgment will be
reversed because the court trying the issue of fact relaxed the rule and al-
lowed the cross-examination to extend to other matters pertinent to the is-
sue.
"Cases not infrequently arise where the convenience of the witness or of
the court or the party producing the witness will be promoted by a relaxation
of the rule, to enable the witness to be discharged from further attendance;
and if the court in such a case, should refuse to enforce the rule, it clearly
would not be a ground of error, unless it appeared that it worked serious in-
jury to the opposite party. Nothing of the kind is shown or pretended in
this case."
356 witnesses (Ch. 2
DETROIT & M. R. CO. v. VAN STEINBURG.
(Supreme Court of Michigan, 1868. 17 Mich. 99.)
Cooley, C. J. 30 The action in the court below was brought by Van
Steinburg to recover of the railroad company for injury done him by
one of their engines at Holly station, on September 15, 1865. The
plaintiff, it appears, was a hotel-keeper at that place. The track pass-
ed between his house and the depot, and only about thirty feet there-
from. He heard the whistle of an approaching train when it called
the station ; started to cross over the track to the depot ; was caught
by the engine as it came up, and had one foot taken off, and the toe
of another. The defendants insisted that the injury was attributable
to his own carelessness ; while he, on his part, claimed that the defend-
ants were negligent and he was not. [There was a verdict and judg-
ment for plaintiff, and defendant sued out a writ of error.] * * *
I think the judge erred, however, in restricting the cross-examination
of S. H. Coon, as he did in other particulars. On his direct examina-
tion, this witness had testified that he went to the depot the morning
of the accident with his carriage. It stood north of the west end of
the depot platform, backed up to it at the northwest corner. He heard
the whistle east of the mile-post, but the train was not in sight; he
stood in his carriage and was looking for the train. It came in sight
just east of the switch. And he then narrated the subsequent facts,
including the injury to the plaintiff. On his cross-examination he was
asked, "From the hotel, what obstructions are there to prevent seeing
the train as well as from the platform?" This question was ruled out,
as not proper cross-examination within the rule laid down in People v.
Horton, 4 Mich. 67.
The case of People v. Horton, we think, is overruled, so far as it has
any bearing upon the present question, by the cases of Chandler v. Al-
lison, 10 Mich. 477; Dann v. Cudney, 13 Mich. 239, 87 Am. Dec. 755,
and Thompson v. Richards, 14 Mich. 172. The case itself we have al-
ways regarded as a departure from the true rule of cross-examination,
and it has had a tendency, greatly and unreasonably, to embarrass the
elucidation of the truth by the sifting of witnesses ever since the case
was decided. When a party places a witness upon the stand to testify
to facts which tend to support his side of the issue involved, and ques-
tions him concerning such facts, it is the right of the opposite party,
on cross-examination, to go as fully into the subject as may be neces-
sary to draw from the witness all he may know concerning the trans-
action about which he has testified, and to put before the jury any
pertinent facts which will have a tendency to controvert the testimony
which has been given by the witness in favor of the party calling him.
A more restricted rule renders cross-examination in many cases nearly
•o Statement and part of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 357
valueless, and enables a party, by careful questions to his witness, to
give to the jury a one-sided and partial view of the facts within the
knowledge of the witness, and effectually to preclude the opposite
party from supplementing the witness's statement with the further
facts within his knowledge concerning the same transaction, unless he
shall make the witness his own, in which case he is supposed to vouch
for him as credible, and has also less privilege. of searching examina-
tion.
In the present case, the facts which the plaintiff sought to establish,
were that he was injured, and that the negligence of the defendants
was the proximate cause. Necessarily intermingled with this, however,
was the question whether the plaintiff had not also been guilty of neg-
ligence which materially contributed to the injury; and this question
vwas so involved in the examination of the plaintiff's witnesses, that it
was impossible to keep it out of view for a moment. Prima facie one
who walks in front of a train which he knows is coming, and is run
over, is guilty of some want of prudence ; and the plaintiff found it
necessary in this case to put in evidence such facts concerning the man-
agement of the train by defendants as would tend to relieve him from
this apparent liability to censure. The distance at which the train
could be seen from the plaintiff's hotel, as well as from the depot plat-
form, was an important fact bearing upon this issue ; and as such, the
defendants were entitled to inquire into it of any witness who had been
put upon the stand to testify to the negligence of the persons in charge
of their train. * * *
Reversed. 31
31 Christiancy, J., in Campau v. Dewey, 9 Mich. 381 (1861):
"It is further essential to the development of the true logical idea of cross-
examination to observe, that it is the tendency of the direct examination
which determines the subject of it, as a test of cross-examination: for exam-
ple, it is that essential or ultimate fact in the plaintiffs case which the di-
rect examination tended to prove, which determines the logical limits of
the cross-examination, and not merely the particular minor facts and cir-
cumstances tending to the proof of that fact As the plaintiff is at liberty
to adduce any number of these particular or secondary facts, however dis-
connected with each other, so that they tend to the proof of the essential
resultant fact which he is bound to establish, so must the defendant be
equally entitled, on cross-examination, to elicit any number of such particular
facts, as may tend to disprove that resultant fact, or to weaken the tend-
ency, in its favor, of the particular facts stated on the direct examination.
"And where two or more main facts are essential to the plaintiff's prima
facie case, such as the title of the plaintiff, and conversion by the defend-
ant, in trover, and the direct examination has been confined to matters tend-
ing only to the proof of one of these main facts, the defendant should not
be allowed to cross-examine as to the other; as this would have no relation
to the evidence in chief, and could not therefore, in any logical sense, be de-
nominated a cross-examination. Such, I think, are the purely logical prin-
ciples of a cross-examination."
358 witnesses (Ch. 2
TENNANT v. HAMILTON.
(House of Lords, 1S39. 7 Clark & F. 122.)
The Lord Chancellor. 32 The object of the action in this case
was to try a question of nuisance to a garden in the neighbourhood
of a manufactory, which, it was said, emitted vapour and smoke prej-
udicial to the property of the pursuer. A witness, David Smith, was
called for the defenders, and he was examined as to certain premises
in the neighbourhood of the manufactory; but he was not examined
by the party producing him with respect to the place called Glasgow-
field — not the place in question in the action, but a place situated near
the manufactory. Both parties went into evidence for the purpose of
showing what was the effect of this manufactory emitting smoke
and vapour upon the lands similarly circumstanced to those of the
party complaining. Whether that was a legitimate mode of inquiry
need not' now be considered; for both parties pursued it, and for one
purpose it was undoubtedly a legitimate mode of inquiry, viz. for
ascertaining what the effect was of the smoke and vapour emitted by
this manufactory. This witness was examined as to several lands in
the neighbourhood ; and then a cross-examination took place, and the
witness says in answer, "he knows Glasgow-field ; never knew of any
damage done there." That was not the answer which the pursuer,
cross-examining the defenders' witness, wished him to give. He had
fixed him with the knowledge of Glasgow-field ; he intended to use
him to show that Glasgow-field had been injured by the vapour and
smoke emitted from the manufactory; but, however, the answer given
was not for the benefit of the party cross-examining him. Then the
counsel for the pursuer proposed to ask the witness "whether he had
known of any sum having been paid by the defenders to the pro-
prietors of Glasgow-field, for alleged damage there occasioned by
the works?" The witness had already said that he knew of no dam-
age done there. If that question had been asked him by the defenders,
no doubt a great latitude in cross-examination might have been per-
mitted to the pursuer, for the purpose as well of ascertaining what
he meant by "he did not know," as for the purpose of testing the ac-
curacy of his statement; but it so happens, when he says he knows
Glasgow-field, and never knew of any damage done there, it is an
answer given by him to a question of the pursuer in cross-examining
him. The pursuer is entering into a line of examination for the first
time, and having got an answer which did not suit his purpose, he
end' avours to get rid of the effect of that answer by putting a ques-
tion upon a point short of what was the witness's knowledge, viz.
"whether he had known of any sum having been paid by the defend-
ers to the proprietors of Glasgow-field, for alleged damage?" The
8^ statement am] part <>f opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 359
pursuer meant, if he could get an answer favourable to his view, to
make that part of his case ; he meant, not being able to get the wit-
ness to Say that he knew of any damage, to get him to say that which
he conceived would be the next best evidence, but which, in fact,
would be no evidence at all. If the witness had answered in the af-
firmative, that he had known of money being paid for alleged dam-
age, it would be no evidence; because money paid upon a complaint
made, paid merely to purchase peace, is no proof that the demand is
well founded; it is not, therefore, to be given in evidence in support
of the fact of damage being sustained.
Upon general principles, the rule of law in this country and in Scot-
land must be the same : if a pursuer calls a witness, and asks him as
to money being paid for alleged damage, his answer in the affirmative
is not evidence of actual damage. If the pursuer had made a claim
upon the owners of the manufactory for damage done to his field
from the smoke and vapour emitted, and the owners had given money
to quiet his complaint, that would be no evidence of the damage ; it
is money paid to buy peace and to stop complaint; it is very often a
wise thing, however unfounded a complaint may be, for parties to pay
a sum of money in order to quiet the party making the complaint. But
this does not rest merely upon general principles. The rule of law
in this country has been cited by the appellants; and from the au-
thorities cited by them, it appears there is no distinction between the
two countries in this respect.
The question clearly could not be put in order to elicit evidence for
the party making the complaint; but it is said it was admissible in
order to test the credit of the witness. Now the witness had said
nothing in his examination by the party for whom he was called,
touching this matter. He had spoken of other properties, but he had
said nothing which could lead to this cross-examination, and there-
fore it was not for the purpose of testing the accuracy or truth of
anything he had said. The question cannot be supported upon that
ground, nor was that the ground, as I understood the argument, upon
which it was attempted to be supported, but that it might be put as a
matter of inquiry, with a view to test the witness's credit. But if it
be not evidence, it is an inquiry perfectly collateral; an inquiry into
a matter which was not relevant to the subject-matter in dispute.
It does not relate to the subject-matter; and it is an acknowledged law
of evidence that you cannot go into an irrelevant inquiry for the
purpose of raising a collateral issue to discredit a witness produced on
the other side.
On these grounds the learned Judge who tried the cause was of
opinion that the question was not admissible under the circumstances
of this examination ; and to that ruling of the learned Judge, — unfor-
tunately for all parties, because leading to great and unnecessary
expense, — a bill of exceptions was tendered, and the Court of Session
360 WITNESSES (Ch. 2
was of opinion that the question was admissible. The party against
whom that decision was made necessarily came here in order to have
that judgment considered; because the Court of Session, being of
opinion that the ruling of the learned Judge before whom the issue had
been tried was erroneous, and that the bill of exceptions was well
founded, had no alternative but to direct a venire de novo. * * *
Reversed. 38
POWERS v. UNITED STATES.
(Supreme Court of the United States, 1912. 223 U. S. 303, 32 Sup. Ct. 281,
56 L. Ed. 44S.)
Defendant was convicted on a charge of violating the statutes in
reference to distilling liquors, etc. Defendant had testified on his
own behalf before the commissioner and was cross-examined by a
representative of the government. Several objections were made to
the extent of this cross-examination, but were overruled by the com-
missioner. At the trial this examination of the defendant was intro-
duced in evidence as an admission. 34
Mr. Justice Day. * * * But it is contended by the defendant that
the bill of exceptions shows that the alleged cross-examination was en-
tirely irrelevant and improper, and not a legitimate cross-examination
of the defendant's testimony in his own behalf. It appears that Pow-
ers testified, being charged with illegal conduct concerning the distilla-
tion of spirits, as already stated, that he was at a place about thirty
steps from the still, beating apples, as testified by the government's wit-
ness ; that Preston Powers had hired him to work for him at the price
of 75 cents a day, and that he put him to beating apples; that the
witness had no interest in the apples or the product thereof, and no
interest in the still, but was merely hired to work by the day at the
price of 75 cents. Having taken the stand in his own behalf, and
given the testimony above recited, tending to show that he was not
guilty of the offense charged, he was required to submit to cross-ex-
amination, as any other witness in the case would be, concerning mat-
ter pertinent to the examination in chief. The cross-examination, in
the answer elicited, tended to show that defendant had worked at a dis-
tillery the fall before with Preston Powers, the man he alleged he was
working for at beating apples on the occasion when the government
witness saw him near the still, and had made brandy near his house,
and had paid Preston Powers to assist him. This, we think, might be
regarded as having some relevancy to the defendant's claim as to the
innocent character of his occupation at the time charged. It has a tcn-
8 3 See the earlier case of Spenceley v. De Wlllott, 7 East, L08 (1806), ex-
dudli aminatlon as to contracts other than iiie oue in issue.
s* Statement condensed ami i>;h-l of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 361
dency to show that defendant knew the character of the occupation in
which he was then engaged, having worked before with Preston Pow-
ers at a distillery and made brandy with him, and did not exceed the
limits of a proper cross-examination of the witness. As to the sugges-
tion that section 860 of the Revised Statutes (U. S. Comp. Stat. 1901,
p. 661) prevented the introduction of the testimony given by defendant
before the commissioner, that section, providing that no pleading, nor
any discovery or evidence obtained from a party by means of a judi-
cial proceeding shall be used in evidence against him in a criminal pro-
ceeding, can have no bearing where, as in the present case, the accused
voluntarily testified in his own behalf in the course of the same pro-
ceeding, thereby himself opening the door to legitimate cross-exami-
nation. See Tucker v. United States, 151 U. S. 164, 168, 38 L. Ed.
112, 114, 14 Sup. Ct. Rep. 299.
Judgment affirmed.
MacDONNELL v. EVANS.
(Court of Common Pleas, 1852. 11 C. B. 930.)
This was an action of assumpsit upon a bill of exchange, by en-
dorsee against acceptor.
The cause was tried before Jervis, C. J., at the sittings in London
after last Trinity Term. A witness called on the part of the plaintiff,
being asked on cross-examination by the defendant's counsel, who
produced a letter purporting to be written by the witness, — "Did you
not write that letter in answer to a letter charging you with forgery?"
— the counsel for the plaintiff objected, that, inasmuch as this was an
attempt to get in evidence the contents of a written paper without pro-
ducing the paper itself, the question was not admissible.
The Lord Chief Justice, holding the objection to be a good one, re-
fused to allow the question to be put ; and the plaintiff had a verdict.
Bramwell, in Michaelmas Term last, obtained a rule nisi for a new
trial, on the ground that the evidence was improperly rejected.
Jervis, C. J. 35 I am of opinion that this rule should be discharged.
It is unnecessary, as it seems to me, for the court to lay down any
general rule upon this subject; it is enough to dispose of the question
which was raised at the trial. If even it had been necessary for us to
declare the general principle, we should not have permitted ourselves to
be influenced by the suggestion of hardship, to bend the rule to meet
the supposed justice of the particular case. The question put and ob-
jected to at the trial, was this, — "Did you not write that letter in an-
swer to a letter charging you with forgery?" I yielded to the objec-
tion, and refused to allow the question to be put. Notwithstanding
35 Opinion of Maule, J., omitted.
3G2 witnesses (Ch. 2
some opinions which have been expressed upon the subject, I have
never entertained any doubt that the inquiry was inadmissible. The
rule of evidence which governs this case, is applicable to all cases where
witnesses are sworn to give evidence upon the trial of an issue. That
rule is, that the best evidence in the possession or power of the party
must be produced. What the best evidence is, must depend upon cir-
cumstances. Generally speaking, the original document is the best evi-
dence ; but circumstances may arise in which secondary evidence of
the contents may be given. In the present case, those circumstances
do not exist. For anything that appeared, the defendant's counsel
might have had the letter in his hand when he put the question. It was
sought to give secondary evidence of the contents of a letter, without
in any way accounting for its absence, or showing any attempt made
to obtain it. It is enough for us to decide upon the application of the
general rule. The best evidence of the contents of the document was
not tendered. Much of that which has been urged by Mr. Macnamara
may be very well founded, and may form cogent argument for a legis-
lative consideration of the subject ; but it is in direct conflict with au-
thorities to which we feel ourselves bound to defer. It is said that
the question ought to have been allowed, because the answer might
have shown the witness to be unworthy of credit. But The Queen's
case 3G determines that that course cannot be permitted. The argument
which has been urged here to-day seeks to show that the opinion of the
judges in that case was erroneous. It seems to me, however, that that
reasoning cannot prevail.
Williams, J. I concur with the rest of the court, though I must
confess it is not without some difficulty that I have brought my mind
to this conclusion. I had thought that the rules as to primary evidence
were to be relaxed somewhat with respect to the cross-examination of
a witness as to facts in themselves foreign to the issues in the cause,
and going only to his credit. That is in accordance with what is laid
down in the 7th edit, of Phillipps on Evidence, and adopted in 2 Rus-
sell on Crimes, p. 927, — for which adoption I am in some degree re-
sponsible ; though I should observe that my contributions to that work,
which were made at a very early period of my professional life, were
carefully revised (as appears from the preface to the 2d edition) by the
learned author; than whom I may venture to say no one possessed
more careful and accurate habits of mind, and few had more expe-
rience in the practice of the criminal law. That notion was founded
mainly upon the existence of the practice of cross-examining a witness,
r the purpose of discrediting him, as to his having been convicted
of crime, or become bankrupt, or insolvent, and the like. I assumed
that it was matter of right, as it certainly was matter of practice, so to
8« In the Qui en's Case, 2 Br. & Bing. 2S4 (1S20), the advisory opinion of the
Judges to the House of Lords was to the effeel that the document should be
submitted t.» the witness for Identification, and cross-examination as to its
contents should not be allowed.
Sec. 4) EXAMINATION OF WITNESSES 3G3
cross-examine a witness, without producing any record 3T of conviction,
or any proceedings in the bankrupt or insolvent court. I have never
known such things to be produced ; and I do not see how they could
be. I did not conceive that this relaxation was at all inconsistent with
the rule laid down by the judges in The Queen's case, of the propriety
of which I have never entertained a doubt; for, it appears to me
that that refers to cases where the examination is with a view to lay a
foundation for showing by independent evidence that the witness has
made former statements at variance with his present testimony, and
not to cases where it goes merely to discredit the witness by his own
admission, and where his denial is conclusive. But the cogent ob-
servations of my Lord and my learned Brothers, in the course of this
discussion, have convinced me that I was wrong in supposing that the
practice to which I have adverted was matter of right ; and I now en-
tertain serious doubts as to the correctness of my former impression.
It is unnecessary, however, upon the present occasion to determine
whether or not that opinion ought to be altogether abandoned, because
I agree with the rest of the court that the particular question which
was proposed to be put to the witness in this case, regard being had
to its form, and to the object with which it was put, was objectionable,
and was properly disallowed.
Rule discharged. 38
CLEMENS et al. v. COXRAD.
(Supreme Court of Michigan, I860. 19 Mich. 170.)
Assumpsit for the breach of a contract for the sale of a quarry. ^
A witness, called by the defendants, was asked, on cross-examina-
tion, "Were you indicted, in 1865, in Sandusky, for smuggling?" This
question was' objected to, but allowed by the circuit judge. 39
37 in Rex v. Inhabitants of Careinion, 8 East, 78 (1S06) it was held that a
conviction to disqualify a witness could not be proved by the examination of
the witness himself, but the record must be produced. The rule as to the
examination in regard to the contents of documents appears to have been
more liberal on the voir dire than on cross-examination.
Howell v. Look. 2 Campbell. 14 (1809):
"A survevor called on the part of the plaintiff stated, in cross-examination,
that he was her son-in-law, and that she carried on the business for the
benefit of her late husband's estate. He was then asked, what interest he and
his wife took under the will of the deceased?
"Lord Ellenborough. The contents of written instruments may certainly
be enquired into in an examination upon the voir dire ; but if there is to be
such an examination, it must take place in its due order— before the exami-
nation in chief. If at any time it appears incidentally that the witness is in-
terested, I will strike out his evidence ; but in cross-examination I cannot al-
low you the privileges of an examination upon the voir dire. The question
is irregular."
3 8 See comments on the principal case in Henman v. Lester, 12 C. B. (N.
S.) 776 (1S62).
39 Statement condensed and opinions on other points omitted.
364 witnesses (Ch. 2
Cooley, C. J. * * * The right to inquire of a witness on cross-
examination whether he has not been indicted 40 and convicted of a
criminal offense, we regard as settled in this state by the case of Wil-
bur v. Flood, 16 Mich. 40, 93 Am. Dec. 203. It is true that in that
case the question was, whether the witness had been confined in State
prison; not whether he has been convicted; but confinement in State
prison presupposes a conviction by authority of law, to justify the
one inquiry and not the other would only be to uphold a technical
rule, and at the same time point out an easy mode for evading it with-
out in the least obviating the reasons on which it rests. We think the
reasons for requiring record evidence of conviction have very little
application to a case where the party convicted is himself upon the
stand and is questioned concerning it, with a view to sifting his char-
acter upon cross-examination. The danger that he will falsely testify
to a conviction which never took place, or that he may be mistaken
about it, is so slight, that it may almost be looked upon as purely
imaginery, while the danger that worthless characters will unexpect-
edly be placed upon the stand, with no opportunity for the opposite
party to produce the record evidence of their infamy, is always palpa-
ble and imminent. We prefer the early English rule on this subject
(Priddle's Case, Leach, C. L. 382 ; King v. Edwards, 4 T. R. 440) ;
and for the reasons which were stated in Wilbur v. Flood. * * *
Campbell and Ci-iristiancy, J J., concurred with the Chief Justice.
Graves, J. (dissenting). * * * On the cross-examination of a
witness for the plaintiffs in error, he was asked if he had not been in-
dicted at Sandusky, in 1865, for smuggling, and if he was not con-
victed, and both questions were objected to by plaintiffs. in error, on
the ground that they supposed the existence of better evidence of
the facts called for; but the objection was overruled, and the witness
stated that he had been convicted of smuggling.
This ruling is supposed to be supported by Wilbur v. Flood, 16
Mich. 40, 93 Am. Dec. 203, but I think the cases are quite distin-
guishable. In the case cited, the defendant on cross-examination, was
asked if he had ever been confined in the State prison, and my brethren
were of opinion that the question was not objectionable as an offer to
prove by parol what rested in record evidence. It is true that the opin-
ion of my brother Campbell may seem to have gone further than this,
but the point decided did not. Whether the witness had been confined
in State's prison, was fact of personal experience and involving a ques-
tion of identity, and no higher or better evidence in contemplation of
law could be furnished than the parol evidence of the witness. If it
be -.Lid that the question implied a confinement under sentence, and
hence that an affirmative answer must have tended to prove a convic-
<o Id People v. Morrison, 195 N. Y. 110, 88 N. E. 21, 188 Am. St. R«m>. 780,
16 Ann. Cas. 871 (1909), it was held thai a witness could oot be cross-exam-
ined ;i^ i" Indictments against him, for the reason that an indictment is no
proof of guilt.
SeC. 4) EXAMINATION OF WITNESSES 3G5
tion ; the reply is that the circumstance that a piece of evidence might
tend by way of argument or inference to prove a fact not lawfully
susceptible of proof by such evidence, would be no ground for ex-
cluding it, if admissible for another purpose, nor could its admission
for the legitimate purpose establish its application to the illegitimate
one.
In deciding the point in Wilbur v. Flood, I think the court did not
purpose to assume that the nature of the evidence requisite to show
a conviction was at all involved, since the raising of the question which
was there decided, did not depend on the presence or absence of record
evidence of conviction, but was wholly independent of any considera-
tion of that kind. The point was not whether the witness had been
convicted, but whether the question put to him supposed any higher at-
tainable evidence of his own confinement than his own testimony, and
the case on that branch of it, is only authority in my judgment, for a
negative answer to that proposition. Indeed, such seems to be the
necessary deduction, since it does not appear to have been claimed by
counsel, or advanced by my brethren, that the settled distinction be-
tween primary and secondary evidence was inapplicable to cross-ex-
amination.
In the present case the party resorted in the first instance to verbal
testimony to prove the proceedings and judgment of a court of record,
and not a distinct and independent fact of personal experience like
that of detention in a particular place. Whether the witness had been
indicted and convicted was an inquiry which involved several consid-
erations of legal import, the technical nature of which, he could not
be supposed to know, while the proof which that inquiry called for
could be legally made by exhibiting the record, or if necessary by
submitting evidence of its contents. The plaintiffs in error were en-
titled to insist, that the credibility of their witness should not be as-
sailed by a species of proof not authorized by the rules of evidence ;
and in my view it was not competent under any circumstances to re-
quire the witness to state, what at best could be nothing more than
his inference in a matter of law, and, in any aspect of the case, that
the contents of the record were not provable by any sort of verbal
testimony so long as better evidence was not shown to be unattain-
able.
The general rule is undisputed, and the necessities of cross-exami-
nation have not hitherto been deemed sufficient to dispense with it.
If we now discard the principle upon an assumption in favor of the
party cross-examining, that he cannot prepare before hand to meet
its requirements, we can only do so by imperiling the existence of the
rule, and by ignoring the reasons for its enforcement which are plain-
ly apparent in the uncertainty and danger of personal unprofession-
al testimony in such a case, and also quite probably existing in the in-
ability of the party calling the witness to anticipate an attack of the
mode and kind made in this action. The King v. The Inhabitants of
n
66 WITNESSES (Ch. 2
Castell Careinion, 8 East, 77; Hall v. Brown, 30 Conn. 551 ; Doe ex
dem. Sutton v. Reagan, 5 Blackf. 217, 219, 33 Am. Dec. 466; New-
comb v. Griswold, 24 N. Y. 298: Clement v. Brooks, 13 N. H. 92,
Commonwealth v. Quin, 5 Gray, 478. * * *
Judgment affirmed. 41
ELLIOTT v. BOYLES.
(Supreme Court of rennsylvania, 1S57. 31 Pa. 65.)
Error to the Common Pleas of Somerset County.
This was an action of slander, by Peter Boyles and Sarah C, his
wife, against John Elliott. A narr. was filed, in which it was alleged
that Elliott had charged that a man by the name of Cramer had had
criminal intercourse with Mrs. Boyles, before her marriage with
Boyles. An additional count was filed, by leave of the court, in
which it was alleged the defendant said, "If the dirty strumpet knew
that I hold her future happiness or misery in my hands, she would
keep her mouth shut."
The speaking of the words laid in the first count, was proved by
Dr. Gorman, and on his cross-examination, the counsel for the de-
fendant proposed to ask him, whether he "did not commit wilful and
corrupt perjury, in a case in the Quarter Sessions of Somerset coun-
ty." This question was objected to, and rejected by the court, and
at the instance of defendant's counsel, a bill of exceptions was sealed.
[The jury returned a verdict for plaintiff, upon which judgment was
entered.]
LowriE, J. 42 * * * Witnesses often suffer very unjustly from
this undue earnestness of counsel, and they are entitled to the watchful
protection of the court. In the court, they stand as strangers, sur-
rounded with unfamiliar circumstances, giving rise to an embarrass-
ment known only to themselves, and in mere generosity and common
humanity, they are entitled to be treated, by those accustomed to
such scenes, with great consideration ; at least, until it becomes mani-
fest that they are disposed to be disingenuous. The heart of the court
and jury, and all disinterested manliness, spontaneously recoils at a
harsh and unfair treatment of them, and the cause that adopts such
treatment is very apt to suffer by it ; it is only where weakness sits
*i For a collection of the cases on this vexed question, see note to Dotterer
v. State, 30 L. R. A. (N. S.) 840 (1909).
In a number of states cross-examimition as to conviction is expressly al-
lowed by statute; e. •-'., Rev. St. Mo. 1909, 8 6383; Hurd's Rev. St. 111. L913,
ch. r,i § 1. But see P< le v. Goodman, 283 111. 414, 119 N. B. 429 (1918),
that the statute only applies to civil cases, and that In criminal cases the
re< ord must be produa d.
When- a defendanl has testified as a witness, his prior conviction, to dis-
credit him, cannol be proved by his extrajudicial admission. People v. Car-
dillo, 207 N. V. to. LOO N. B. 715, Ann. c.is. 191 10, 265 (1912).
•a Statement conden ed and part of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 3G7
in judgment, that it can benefit any cause. Add to this, that a mind
rudely assailed, naturally shuts itself against its assailant, and reluct-
antly communicates the truths that it possesses.
We do not at all feel authorized to say, that these remarks are de-
manded by anything that took place on the trial of this cause; but
they are suggested by the question put by the counsel of the defendant
below, and by the view taken of it by the opposite counsel. We do
not at all know, who put the question, or how it was put ; but we are
sure that the counsel who argued the cause here are most respectable
and considerate.
The question put to the witness on his cross-examination, and re-
jected by the court at the instance of the opposite party, was : Wheth-
er he did not commit wilful and corrupt perjury in a case in the
Quarter Sessions?
The counsel who proposed it were entirely mistaken in supposing
that a negative answer would open the door for proving the -affirm-
ative, in order to contradict the witness ; for the answer would have
been conclusive of the fact, it being a fact entirely collateral to the
issue. 1 Greenl. Evid. § 449. If such a mode of discrediting a wit-
ness were allowable, it is easy to see that, on the single question of the
credibility of a single witness, the number of collateral issues to be
tried might be entirely indefinite.
But the purpose of the question, if seriously put, was to obtain
an answer that would disgrace the witness, and expose him to a
criminal prosecution ; and it is only in exceptional cases that^ such
questions can be properly asked of a witness. This, however, is the
privilege of the witness, and not the right of the other party. We
think that we ought to -say, that such a question as this ought never
to be asked of any witness; for no witness ought to answer it even
if allowed to do so. 1 Greenl. Evid. §§ 451-455; 1 Phil Evid.
279.
And the question is entirely illegitimate as a mode of attacking the
credibility of a witness. If a man is received among his neighbours
as fully entitled to credit for veracity, a court and jury can have no
grounds for discrediting him, except such as may arise from Ins
want of intelligence or candour, from his contradictions or partisan-
ship in testifying before them. The fact that those who are well ac-
quainted with his home reputation, know it be now undoubted, is
not set aside by any single crime, or even many of them, that he may
long ago have • committed. If his reputation still rises above that,
he is credible still, for the taint of criminality is not entirely indelible.
Hence the most proper test of character, before human tribunals
is reputation, and not single acts. And it is the only practicable one ;
for the witness or the party calling him can be prepared for no other,
and the court can administer no other ; for it cannot possibly try col-
lateral issues or the events of every witness's life, in order to decide
368 -witnesses (Ch. 2
the controverted cause. 1 Greenl. Ev. §§ 461-469. It would be ab-
solutely* intolerable that a man, by being brought into court as a
witness, should be bound to submit all the acts of his life to the ex-
posure of malice, under the pretence of testing his credibility. If
such were the test, courts would often present in language and tem-
per, scenes of unmitigated ruffianism, and the means of enforcing
law and order in society, would be denounced as sources of corrup-
tion and disorder. * * *
Judgment affirmed.
STATE v. ABBOTT.
(Supreme Court of Kansas, 1902. 65 Kan. 139. 69 Pac. 160.)
Johnston, J. 43 John Abbott was prosecuted upon the charge of
rape, committed on the person of Desdemonia Harrolson, a girl un-
der 18 years of age, and he was convicted of an attempt to commit
that offense. Mrs. Sadie Stutzman was the mother of the girl and
the prosecuting witness. It was claimed that Mrs. Stutzman and the
defendant had been unduly intimate for several months prior to the
commission of the alleged offense, and that their illicit relations had
been brought to the knowledge of her husband; that Mrs. Stutzman
met the defendant in the woods near her house, in the absence of her
husband, and demanded money from the defendant, which was not
furnished ; and that then she began the prosecution against the de-
fendant for the offense against her daughter. She claims to have
known of the alleged offense within a few hours after its commis-
sion, and it is said she made no complaint for more than a month, nor
until the demand for money was refused. It is claimed by the de-
fendant that the prosecution was malicious; that it was brought to
blackmail him, and to appease Mrs. Stutzman's husband, who had
learned of her infidelity. After she had testified in behalf of the
state, she was asked on cross-examination if it was not a fact that, from
October of the previous year until within a few days before demand-
ing the money from the defendant, she had met him in the timber near
the house and had illicit relations with him ; but the court, on ob-
jection of the county attorney, excluded the testimony. A further
effort was made to show the relations between her and the defendant
immediately prior to the demand for money and the commencement
of the prosecution, but the court would not permit inquiry to be
made.
It was competent for the defendant to cross-examine the witness as
to her antecedents, character, and past conduct, and thus impair her
credibility. This line of inquiry became important because of the con-
tention that the prosecution was prompted by the malice of this wit-
«» Part of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 3G9
ness, resulting from a failure to extort money, and some of the circum-
stances surrounding the case seem to justify a full cross-examination
as to her past conduct and character. There is no better method of
sifting the conscience and testing the veracity and credibility of a wit-
ness than by cross-examination, and there is abundant authority hold-
ing that, for the purpose of impairing the credibility of the witness,
he may be cross-examined as to specific acts tending to discredit him,
although such acts are irrelevant and collateral to the main issue. State
v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan.
310, 26 Pac. 749; State v. Wells, 54 Kan. 161, 37 Pac. 1005; State v.
Park, 57 Kan. 431, 46 Pac. 713; State v. Greenburg, 59 Kan. 404,
53 Pac. 61 ; Brandon v. People, 42 N. Y. 265 ; People v. Casey, 72 N.
Y. 393; Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496; Tla-
koo-yel-lee v. U. S., 17 Sup. Ct. 855, 42 L. Ed. 166; Martin v. State,
125 Ala. 64, 28 South. 92. In the Case of Tla-koo-yel-lee a witness
testified against her husband, and on cross-examination questions were
asked with a view to showing that since the arrest of her husband
she had been living with another person as his wife, under an agree-
ment that if her husband was convicted they should continue to live
together as husband and wife. The supreme court of the United
States held that the questions were material, as bearing upon the char-
acter and credibility of the witness, and that their exclusion was prej-
udicial error. In Martin v. State, supra, a witness testified that the
defendant had purchased certain meat which he was charged with
stealing; and, with a view of showing bias and prejudice, it was held
to be proper to cross-examine the witness as to her conduct with
the defendant, although it involved illicit sexual intercourse, so long
as she did not claim immunity from answering on account of subject-
ing herself to criminal prosecution, or its tendency to degrade her.
Following these authorities, it must be held that the refusal of the
court to permit a full cross-examination of Mrs. Stutzman was mate-
rial error. * * *
Reversed. 44
44 Graves, J., in People v. Arnold, 40 Mich. 710 (1879): "On the cross-ex-
amination of the witness Sabin, he swore that he had formerly been a mem-
ber of the firm of Granger and Sabin, bankers, at Detroit. Defendant's coun-
sel then asked this question: 'Did you not, while a member of that firm, ex-
tract from an envelope securities which were left in your vault for safe keep-
ing, and use their proceeds in stock speculations in New York?' The court on
the unexplained objection of the prosecuting attorney refused to allow the
question. We think this ruling was not well advised. It was important for
the defendant that the jury should be informed as far as practicable, with-
out infringement of the rules of law, in regard to the moral character and
antecedents of the witness, and the question was designed to elicit such in-
formation. No doubt the witness might have declined to answer under the
acknowledged rule, that no one can be compelled to criminate himself. But
this is a matter of personal privilege which a witness may waive, and is not
a ground of objection by the people, and here the witness did not object, and
we caimot assume but that he was not only willing, but desirous to answer."
Hint.Ev.— 24
370 witnesses (Ch. 2
STATE v. CARSON.
(Supreme Judicial Court of Maine, 1S76. 66 Me. 116.)
Libbev, J. 45 The prisoner was on trial for the murder of one
Brawn. He was a witness in his own behalf. In his defense he had
not put in evidence his previous good character. On cross-exam-
ination the counsel for the government was permitted, against ob-
jection duly taken, to ask him the following questions: "Did you as-
sault Mr. Farrar on the Calais road, while drunk." Similar questions
were allowed to be put to the witness, against objection, as to assaults
on several other persons, at different times and places, while drunk.
These matters had not been gone into, in the examination in chief.
Was this line of examination legally permissible? It must have been
admitted for one of two purposes: either as affecting the credibility
of the witness, or as tending to prove the crime alleged. A party to
a suit may be a witness. If a witness, his examination must be con-
ducted under the same rules that are applicable to the examination of
any other witness. To impeach his credibility, it is not competent to
prove by other witnesses that he has committed other crimes than
the one with which he is charged ; nor is it competent to do the same
thing by cross-examination. 40 The proper line of cross-examination
does not extend so far as to authorize, in that way, the introduction
of incompetent evidence. The witness must be prepared to vindicate
his general character for truth, and to meet the proper evidence of a
prior conviction of an infamous crime. These are matters properly
in issue. But he cannot be required to be prepared to vindicate him-
self against any alleged crime that may be insinuated in the form of
cross-examination, and of which he has no previous notice. We think
these principles well settled by the authorities. The evidence was in-
competent for the purpose of impeaching the credibility of the wit-
ness. The subject is carefully considered and determined in Hol-
brook v. Dow, 12 Gray (Mass.) 357.
Xor was the evidence competent as tending to prove the crime for
which the prisoner was on trial. The fact that he had made a violent
assault on another person, at a different time and under different cir-
cumstances, could have no legitimate effect to prove him guilty of the
fatal assault upon Brawn. In Commonwealth v. Thrasher, 11 Gray
(Mass.) 450, the court states the rule as follows: "As a general rule
in criminal trials, it is not competent for the prosecutor to give evi-
dence of facts tending to prove another distinct offense, for the pur-
pose of raising an inference of the prisoner's guilt of the particular
t charged. The exceptions are cases where such evidence of other
acts has some connection with the fact to be found by the jury,
»• s t .- 1 f < - 1 1 1 < • r 1 1 omitted.
«i j!iit. Bee Goddard v. Parr, post, p. 396.
Sec. 4) EXAMINATION OF WITNESSES 371
where such other fact is essential to the chain of facts necessary to
make out the case, or where it tends to establish the identity of the
party, or proximity of the person at the time of the alleged act, or
the more familiar case, where guilty knowledge is to be shown or
some particular criminal intent. Unless it be made material for some
such reasons as we have stated, evidence of the substantive offenses
of the like kind ought not to go to the jury." The case at bar does
not fall within any exception to the general rule. We think the court
erred in allowing the questions to be put to the witness.
Exceptions sustained. 47
DUNGAN v. STATE.
(Supreme Court of Wisconsin, 1908. 135 Wis. 151, 115 N. W. 350.)
On writ of error by the defendant to review a judgment convicting
him of a felonious assault on his step-daughter. 48
Dodge, J. The errors assigned by the plaintiff in error are predi-
cated upon the failure of the court over objection to prevent abuse by
the prosecuting attorney of his right of cross-examination of the de-
fendant. The propounded questions specially assigned as error fall
into three classes : / First, those tending to insinuate that the defend-
ant himself at different times had conducted, or lived in, disreputable
places devoted to prostitution either in Milwaukee or Chicago ; sec-
ond, questions tending to the insinuation that defendant's wife, the
mother of the prosecuting witness, was a dissolute woman and en-
gaged in prostitution, and at different times an inmate of houses de-
voted to that end; third, that the place of residence of the defend-
ant and his wife at the time of the offense charged was in a building
inhabited by prostitutesT'
The first class of these questions presents the often discussed and
often much abused field of proving disgraceful, immoral, or criminal
conduct of one accused of crime which is in no way connected with
the crime itself. The rule is without exception that such evidence is'
wholly inadmissible upon the issue of guilt, because the jury have no
right to draw any inference from such general bad character or specific
misconduct that the accused committed the offense charged, and yet,
while recognizing that they have no such right, it is well-nigh im-
possible to avert a prejudicial effect from such evidence. Its admis-
sion, or any attempt by the prosecutor by suggestive questions to con-
vey such facts to the jury, is a most serious abuse which, if not
promptly suppressed by the court, with explanation to the jury such
as to remove so far as possible the ill effects, must usually work re-
versal. Buel v. State, 104 Wis. 132, 80 N. W. 78; McAllister v.
*7 Senible, accord: People v. King:. 276 111. 13S, 114 N. E. 601 (1916).
<8 Statement condensed and part of opinion omitted.
372 witnesses (Ch. 2
State, 112 Wis. 496, S8 N. W. 212; Paulson v. State, 118 Wis. 90,
94 N. W. 771; Baker v. State, 120 Wis. 135, 97 N. W. 566; Topo-
lewski v. State, 130 Wis. 244, 249, 109 N. W. 1037, 7 L. R. A. (N. S.)
756, 118 Am. St. Rep. 1019, 10 Ann. Cas. 627. Such being the un-
doubted rule upon the issue of guilt or innocence, it is nevertheless
subject to a certain qualification which has arisen only since one ac-
cused of crime is permitted to testify in his own behalf. When he
does so he is not only the defendant, but he is also a witness, and in
the latter capacity is subject to the same rules as other witnesses as to
the asking of questions on cross-examination relative to facts which
may impair his credibility. Thus by express provision of the statute
he may be asked on cross-examination whether he has been convicted
of a specific crime.
Apart from statute the rule is general that some inquiry may be
made of every witness as to the morality of his past life on the as-
sumption that immorality in some other respects may have a bear-
ing upon his character for veracity. 49 But such questions, and the
information they educe, are solely relevant to that question of veracity.
It is at once obvious that this rule opens a very wide field for abuse
by counsel of their privilege to make such inquiry. A counsel may,
if not restrained by the court, devote the cross-examination of a wit-
ness, not alone to proving disgraceful and disreputable acts having but
the remotest bearing upon the question of his veracity, but he may
also, by persistent questions, suggesting facts which do not exist,
commit a great outrage upon the feelings and reputation of the wit-
ness, to the great embarrassment of courts from resulting reluctance
of witnesses to place themselves in a position where they can be so
insulted. When any attorney evinces a tendency toward such un-
worthy practices, it becomes the duty of the trial court to at once
interpose and protect both the witness from such assaults and the for-
um over which he presides from thus being debased into an arena of
mere scandal. Especially is such restraint his duty when the witness
<s Hunt, J., in Shepard v. Parker, 36 N. Y. 517 (18G7): " • • • It Is the
constant practice at the circuit to inquire of a witness if he has not been
guilty of a specific offense, for the purpose of Impeaching him. It is usually
a satisfactory test. If a man admits himself to have been guilty of heinous
offenses, the jury would justly give him less credit than if his Life had been
pure, and his conduct upright. If a female witness admits herself to have
broken down those harriers which the virtue and religion of every civilized
country have reared lor her improvement and protection, her oath would be
of little value before a jury of intelligent men. This practice is uniform
and fully sustained by the authorities. President, etc., of Third Great West-
ern Turnpike Road Co. v. Loomis, 32 N. Y. 127 [88 Am. Dec. 311 (18G5)1 ; Le
Beau v. People, 34 N. V. 228 [1866]. The protection against its abuse is two-
d: First, In the privilege of the witness to refuse to answer; and, second,
In the discretion of the judge."
to the discretion of the trial judge, see President, etc., of Third Great
Western Turnpike Road Co. v. Loomis, :;•_' X. V. pjt, 88 Am. l >«•<•. :;u (1865);
Le Beau v. People, 84 X. Y. 228 (1866); state v. McCartey, 17 Minn. 70 (CiiL
[1871]).
SeC. 4) EXAMINATION OF WITNESSES o7:'.
is also a defendant in a criminal prosecution, for he may not only
suffer in his feelings and reputation, but the jury are extremely likely
to translate a suspicion of his general immoral character into a con-
viction of the particular crime with which he is charged.
The rule has therefore become established that the limits of this
kind of cross-examination, namely, for the purpose of fairly ascer-
taining the character for veracity of witnesses, may safely be left to
the discretion of the trial judges, and hence that, unless abuse or
neglect to exercise such judicial discretion appear, the mere inquiry
of a witness as to some disreputable conduct in his career need not
result in reversal. Buel v. State, supra ; State v. Nergaard, 124 Wis.
414, 423, 102 N. W. 899; 2 Wigmore Ev. § 981 et seq. To ask a
witness whether he has at some time conducted a disreputable place
of business ordinarily bears but slightly upon his character for verac-
ity ; and we held in Meehan v. State, 119 Wis. 621, 623, 97 N. W. 173,
that it was by no means an abuse of discretion for a trial judge to
reject such question, and yet we do not feel at liberty to say that in no
case might it in the discretion of the court be asked. As to the in-
quiries in this case as to defendant's past life, we cannot conclude
that any error was committed.
The other class of questions, namely, as to the conduct, behavior,
and places of habitation of the defendant's wife, present an abuse of
the right of cross-examination which is hardly conceivable. What
possible relevancy to the guilt or innocence or to the veracity of the
accused could the immorality or misconduct of his wife have? Is it
conceivable, when a witness goes upon the stand in aid of the ascer-
tainment of the truth, that he so opens the door to assaults on his
feelings and the reputation of others as that the opposing attorney
may, by asking him the question whether his wife was ever an inmate
of a house of ill fame, spread abroad an insinuation of that fact?
While an appellate court, in its anxiety to sustain a judgment when
it can believe that errors committed upon the trial could not have af-
fected the result, might pass over even such an assault as this upon
a witness, we cannot think that in the present case such course is
open to us, for the court in ruling upon certain of those questions in
effect declared, in the presence of the jury, that he permitted inquiry
into the conduct and surroundings of the defendant's wife and of
defendant himself "in so far as it touches upon the real consideration
of the defendant of those things which are naturally expected and
that we naturally expect to find existing between the father and daugh-
ter or the father and stepdaughter. That is all the bearing it has in
this case." This obviously meant that the fact of immoral surround-
ings and conduct suggested, as a legitimate inference, probability of
the specific offense between the defendant and the prosecuting wit-
ness ; that such evidence need not be confined to considerations of mere
credibility or veracity, but might bear upon the likelihood of the com-
mission of the crime itself.
374 witnesses (Ch. 2
This brought the cross-examination within all the words of dis-
approval which were pronounced in the Paulson Case with reference
to an attempt to defame a defendant's character before he had be-
come a witness. If the jury heeded this remark, the fact that the
defendant, or even his wife, was an immoral person, living among
disreputable surroundings, may have been by them considered suffi-
cient to overcome that presumption of his innocence of the specific
act of assault upon this child, and to have hurried them to a conclu-
sion of guilt, which they might not have been able to reach from the
unaided testimony of the prosecutrix, fully contradicted by the defend-
ant himself, and also persuasively contradicted by the testimony of
other witnesses. This was error which we cannot convince ourselves
can be passed over as not prejudicial.
Judgment and sentence reversed, and cause remanded for new
trial. 50 * * *
IV. Contradiction and Impeachment
ADAMS v. ARNOLD.
(Court of King's Bench, 1701. 12 Mod. 375.)
Trespass for an assault upon the plaintiff's wife, and getting her
with child; and what the wife declared in her labour rejected to be
evidence.
And here Holt, Chief Justice, would not suffer the plaintiff to
discredit a witness of his own calling, he swearing against him.
REX v. OLDROYD.
(Court for Crown Cases Reserved, 1805. Russ. & R. 88.)
The prisoner was tried before Mr. Baron Graham, at the Tent as-
sizes for the county of York, in the year 1805, for the murder of his
father at Sandal Magna, on the 12th of July, 1804, by strangling him.
He was convicted upon circumstantial evidence, but the learned judge
respited his execution upon an objection pressed upon him by the
counsel for the prisoner, as to the admissibility in evidence of a depo-
sition read upon the trial under the following circumstances.
The counsel for the prosecution at the close of their case observed
6" in u Dumber of the states the cross-examination of a witness as to mis-
sonducl tor in.' purpose of discrediting, appears to be excluded on the ground
■ ri raising collateral Issues, thus failing i<> distinguish between cross-exami-
nation and Hie proof of offenses by other witnesses. For a collection of the
ote to - Wlgmore, § t^7.
SeC. 4) EXAMINATION OF WITNESSES 37."
to the learned judge, that they did not mean to call the mother of the
prisoner, Elizabeth Oldroyd, strong- suspicions having fallen upon her
as having been an accomplice; but the judge thought it right, in
compliance with the usual practice (her name being on the back of
the indictment, as having been examined before the grand jury), to
have her examined, which was accordingly done. The learned judge
observing upon this examination, that the evidence given by the
woman was in favor of the prisoner, and materially different from
her deposition taken before the coroner, thought it proper to have
the deposition read, for the purpose of affecting the credit of her
testimony so given on the trial: and in summing up the case to the
jury he stated, that her testimony was not to be relied upon, and left
the matter of the prisoner's guilt entirely upon the other evidence.
The question reserved for the opinion of the judges was whether
it was competent to the judge, under the circumstances stated, to
order this deposition to be read, in order to impeach the credit of the
witness.
The case was taken into consideration at a meeting of all the judges
in Easter term, 11th of May, and again on the 18th of May, 1805, when
they were all of opinion, that it was competent under the circum-
stances for the judge to order the deposition to be read, to impeach the
credit of the witness. It was then considered whether, laying the
evidence of the prisoner's mother entirely out of the case, there was
sufficient evidence to go to the jury. Graham, B., read to the judges
from his notes the evidence given on the trial ; and, upon considera-
tion the judges were of opinion, that there was evidence sufficient to
go to the jury; and that the jury having found the prisoner guilty,
there were not circumstances sufficient to raise a doubt so as to in-
duce any interposition to prevent the law taking its course.
The case of Margaret Tinckler (East, P. C. 354 — This case was
before the judges on the 6th November, 1781) was mentioned; where
the judges determined, that although evidence had been received which
was not strictly admissible, yet the case appearing clear against the
prisoner without that evidence, it was not a' reason to stay the execu-
tion. And the judges, upon the present occasion, seemed all to agree
to that doctrine, where the case was otherwise clear; but seemed
to think, that this case could hardly have fallen within the rule if the
evidence of the mother's deposition, to impeach her credit, had been
held inadmissible.
Upon the question, whether a party producing a witness could be
permitted to call evidence to impeach the credit of such witness,
were cited Rex v. Colledge, Adams v. Arnold (12 Mod. 375), 12 Vin.
Abr. 48, tit. Evidence, M, a, pi. 6.
In this case, the determination of the judges was confined to the
right of a judge to call for a witness's deposition, in order to impeach
3TG WITNESSES (Ch. 2
the credit of a witness who on the trial should contradict what she
has before deposed ; but Lord Ellenborough and Mansfield, C. J.,
thought the prosecutor B1 had the same right.
BRADLEY v. RICARDO.
(Court of Common Pleas, 1S31. 8 Bin?. 57.)
This was an action against the sheriff of Gloucestershire for a false
return of nulla bona to a writ of fi. fa.
At the trial the plaintiff called the sheriff's officer to prove the re-
ceipt of the warrant to levy.
Upon cross-examination, the witness affirmed that no goods could
be found belonging to the party against whom the levy was directed.
The plaintiff's counsel was then proceeding to prove his case by other
witnesses, and to contradict the sheriff's officer as to his statement
that no goods could be found, when the learned Judge who presided
thought that, if the plaintiff were permitted to contradict a witness
placed in the box by himself, as to a particular fact, the whole evi-
dence of the witness must be struck out ; upon which the plaintiff was
nonsuited.
Wilde, Serjt., obtained a rule nisi to set aside the nonsuit, contending
that though a party is not allowed to throw general discredit on the
character of a witness called by himself, he may set him right as to
any particular fact which he may have stated incorrectly, and the rest
of his evidence may stand.
Tindal, C. J. 62 This rule must be made absolute. The object of
all the laws of evidence is to bring the whole truth of a case before a
jury; but if this rule were to be discharged, that would no longer be
the just ground on which the principles of evidence would proceed,
but we should compel the plaintiff to take singly all the chances of the
tables, and to be bound by the statements of a witness whom he might
call without knowing he was adverse, who might labour under a de-
fect of memory, or be otherwise unable to make a statement on which
complete reliance could be placed. Suppose a case in which, for some
si In State v. Slack, G9 Vt 486, 38 Atl. 311 (1S07), It was hold that the
state's attorney might prove a conviction to discredit a witness called by
him.
In Com. v. Hudson, 11 Gray (Mass.) 04 (1858), It was ruled by Shaw, C.
.1., that the prosecution should not be permitted to prove contradictory state-
ments by its own witness.
it has been held that, where the rule requires a party to call an attesting
wit: u . he Is entitled, in ease of adverse testimony, to prove the bad reputa-
tion Of the witness for truth, Williams v. Walker, 2 Rich. Kq. (S. C.) 291, 46
Am. Dec. ■"»:', (1840); or to prove contradictory statements, Thompson v. Owens,
17 t III 229, 51 N. B. 10K5, 45 L. R. A. (JS2 (1898); Harden v. Hays, 9 Pa. 151
(1848).
•a Opinions ol Gaselee, Bosanq.net, and Aiderson, JJ., omitted.
SeC. 4) EXAMINATION OF WITNESSES 377
formal proof, the plaintiff is obliged to make a witness of the defend-
ant's attorney, who on cross-examination makes a statement adverse to
the plaintiff; is the plaintiff to be precluded from calling the wit-
nesses whom he had prepared before to show the real state of the case?
It has been urged as an objection, that this would be giving credit to
the witness on one point after he has been discredited on another ;
but difficulties of the same kind occur in every cause where a jury
has to decide on conflicting testimony. The general rule is, that a
party shall not be permitted to blast the character of a witness called in
support of his case by adducing general evidence to his discredit; but
I have never heard it said that when surprised by a statement con-
trary to fact, he may not call another witness to show how the fact
really is. It is a common occurrence that persons called on to give
their testimony decline to make any statement before they appear in
Court. It would be a great hardship if the party compelled to call such
persons should be bound by everything they may choose to say. The
alteration in the general rule which the defendant in this case seeks to
establish, would lead to great inconvenience and injustice. The rule,
therefore, which has been obtained for setting aside the nonsuit must
be made absolute.
Rule absolute.
WRIGHT v. BECKETT.
(Court of Common Pleas, 1834. 1 Moody & R. 414.)
Lord Denman, C. J. 53 The question which has been argued before
us, arose in this manner : Four witnesses, examined on the plaintiff's
part, gave evidence which, if believed, established his case; he then
called a fifth, whose testimony, if believed, defeated the plaintiff's case,
and fully proved that of the defendant. It was then proposed by the
plaintiff to shew that this same witness had formerly given a completely
different account at another time. The mode of doing this, was by
producing the statement taken down shortly before the trial, from his
own lips, by the plaintiff's attorney. The object of the evidence ten-
dered, was to shew the untruth of what he swore upon the trial : we
are now to consider whether I did right in permitting this contradiction
to be proved.
Notwithstanding my respect for the different opinion which is en-
tertained by my learned brother now present, and, as I believe by
others of great weight and authority, I retain that on which I acted at
Lancaster.
The case was brought by what occurred to this simple point, — to
which of the witnesses credit was due. If to the first four, the plain-
53 Statement and part of opinions of Lord Denman, C. J., and Holland, B.,
omitted.
378 witnesses (Ch. 2
tiff was entitled to the verdict; if to the last, the defendant. On this
issue alone the event of the cause depended. The defendant enjoyed
the privilege of assailing the credit of those who were opposed to his
interest : the plaintiff must have the same right with respect to that
witness who unexpectedly turned against him, unless he is debarred
by some strict rule of law.
I find no such rule, but many decisions which must have proceeded
on the opposite principle. There is a passage, indeed, upon this sub-
ject in Buller's Nisi Prius, to which, as I understand it, I most fully
subscribe (page 297) : "A party never shall be permitted to produce
general evidence to discredit his own witness, for that would be to
enable him to destroy the witness if he spoke against him, and to make
him a good witness if he spoke for him with the means in his hands
of destroying his credit if he spoke against him. But if a witness
prove facts in a cause which make against the party who called
him, yet the party may call other witnesses to prove that those facts
were otherwise; for such facts are evidence in the cause, and the
other witnesses are not called directly to discredit the first witness, but
the impeachment of his credit is incidental and consequential only."
But I consider the meaning to be, that no party shall produce a wit-
ness whom he knows to be infamous, and whom he has, therefore, the
means of discrediting by general evidence. No inference arises, that
1 may not prove my witness to state an untruth, when he surprises me
by doing so, in direct opposition to what he had told me before. In
this case, the discredit is consequential, and the evidence is not gen-
eral but extremely particular, and subject to any explanation which the
witness may be able to afford. The rule laid down in Buller's Nisi
Prius, therefore, appears to me inapplicable.
Two dangerous consequences are, however, apprehended from ad-
mitting the former statement of a witness, in contradiction to his tes-
timony on the trial.
Now, I must observe in passing, that the Judge's apprehension
of possible danger on admitting certain evidence, cannot create a rule
for excluding it. The Legislature may make such a provision, or the
rule may have so far prevailed in practice as to be properly considered
parcel of the common law. But if, instead of acting on established
rules, we were now conferring on what rules it would be best to estab-
lish, the inconvenience of precluding the proof tendered strikes my mind
as infinitely greater than that of admitting it. For it is impossible to
conceive a more frightful iniquity, than the triumph of falsehood and
treachery in a witness, who pledges himself to depose to the truth when
brought into Court, and, in the meantime, is persuaded to swear, when
he appears, to a completely inconsistent story.
Th( ers on the other hand, though doubtless very fit subjects of
precaution in the progress of atrial, exist at present, in an equal degree,
with reference to modes of proceeding which have never yet been ques-
tioned.
Sec. 4) ' EXAMINATION OF WITNESSES oT'J
The most obvious and striking danger is that of collusion. An at-
torney may induce a man to make a false statement without oath, for
the mere purpose of contradicting by that statement the truth, which,
when sworn as a witness, he must reveal. The two parties concerned
in this imagined collusion must be utterly lost to every sense of shame
as well as honesty. But there is another mode by which their wicked
conspiracy could be just as easily effected. The statement might be
made, and then the witness might tender himself to the opposite 54
party, for whom he might be first set up, and afterwards prostrated
by his former statement. This far more effectual stratagem could be
prevented by no rule of law.
The other danger is, that the statement, which is admissible only to
contradict the witness, may be taken as substantive proof in the cause.
But this danger equally arises from the contradiction of an adverse
witness; it is met by the Judge pointing out the distinction to the
jury, and warning them, not to be misled. It is not so abstruse but
that Judges may explain it, and juries perceive its reasonableness ; and
it is probable that they most commonly discard entirely the evidence of
him who has stated falsehoods, whether sworn or unsworn.
I now proceed to observe upon the cases cited. 55 * * *
The result is, that, finding no direct authority compelling the ex-
clusion of such evidence, and some which appear to me on principle
to prove it admissible, and thinking that truth and justice may be most
materially affected by that exclusion, I am bound to abide by the
course I pursued at nisi prius, and must give my judgment against
making the rule absolute.
Bolland, B. * * * I have most attentively considered all the
cases cited in the arguments before us, and I am of opinion that the
evidence of Mr. Mallady ought not to have been received, and that
the rule for a new trial should be made absolute.
The rule applicable to this question is, as it seems to me, that
which has been relied upon by my brother Jones; viz., that a party
in a cause is not to be permitted to give evidence of a fact, for the
purpose of discrediting his own witness, unless such fact would of
itself be evidence in the cause; but that where such fact is relevant to
the issue, and so per se evidence in the cause, such proof is to be allow-
ed to be given, although it may collaterally have the effect of discredit-
ing the testimony of his own witness.
The passage cited from Mr. Justice Buller's treatise on the law rela-
54 In Clancey v. St. Louis Transit Co., 192 Mo. 615. 91 S. W. 509 (1905). it
was held that, in case of collusion between the opposite party and the wit-
ness, the party calling the witness might contradict him by his former depo-
sition.
ss In the omitted passages the Chief Justice reviewed Alexander v. Gibson,
2 Campb. 556 (1S11) ; Lowe v. Joliffe, 1 Wm. Blackstone, 305 (1762); Goodtitl.'
v. Clayton, 4 Burr, 2224 (1768) ; Rex v. Oldroyd, Buss. & By. 88 (1S03) ; Ewer
v. Ambrose. 3 B. & C. 746 (1825); Friedlander v. Loudon Assurance Co., 4 B.
& Adol. 193 (1832).
380 WITNESSES (Ch. 2
tive to trials at nisi prius, p. 297, taken altogether, warrants this dis-
tinction ; for after having laid it down that a party shall not be per-
mitted to give general evidence to discredit his own witness, the learn-
ed author goes on to state, — "But if a witness prove facts in a cause
which make against the party who called him, yet the party may call
other witnesses to prove that those facts were otherwise, for such facts
are evidence in the cause, and the other witnesses are not called di-
rectly to discredit the first witness, but the impeachment of his credit is
incidental and consequential only." By these words the learned writ-
er points out in what manner and to what extent a party shall be al-
lowed to impeach the credit of his own witness, in contradistinction to
that "general evidence," of which he had made mention just before.
The cases of Ewer and Another, Assignees v. Ambrose and Another,
3 B. & C. 746, and Friedlander v. The London Assurance Company, 4
B. & Adol. 193, were decided upon the principles laid down in the
above rule ; and it is worthy of observation, that the general leaning
of the late Lord Tenterden's mind was so strong against allowing a
party to discredit one of his own witnesses, that when the latter case
was before him at nisi prius, he appears to have considered, though
mistakenly, as the Court afterwards thought, that all such evidence was
inadmissible.
I think that great weight is due to the argument founded on the
danger of collusion ; it is, indeed, in my mind, the main objection to the
reception of the evidence. * * *
With the exception of the opinion of the two learned Judges in
Rex v. Oldroyd, the authorities are uniform in establishing, that a
party cannot contradict his own witness but by giving evidence of
facts bearing upon the issue. It was open to the plaintiff to do so in
the present case, but he was not at liberty to prove that his witness,
Warrener, had previously made a different statement to the attorney,
because that was a matter not relevant to the issue in the cause ; nor
was the statement entitled to such weight as a contradiction, as to have
the power of neutralizing the evidence (one of the reasons urged for its
mission), it not having been given upon oath. It furnished a suffi-
cient apology for putting Warrener in the brief, and calling him, but
could go no farther. In the case of Ewer v. Ambrose, the evidence by
which it was sought to contradict the witness was, his answer in Chan-
cery. In Rex v. Oldroyd, the contradiction was supported by the wit-
ness's deposition before the coroner.
For these reasons I am of opinion, the evidence of the witness, Mal-
lady, was improperly received at the trial; but, as the Court is divided,
there cannot, of course, be any rule. f "
00
.'.'■ Brie, J., in Melhuisb v. Collier, L5 Adolphua & Bills (N. S.) 87S, (Court
of i Bench, L850): "The first point is an Important one. A plaintiff's
wiii... in effect, thai the plaintiff baa no cause of action. Then he is
ether he baa not, formerly, made a different statement. I think
Ion is proper, and ool Inconslstenl with the rale that a party know-
Sec. 4) EXAMINATION OF WITNESSES 381
i
ATWOOD v. WELTON.
(Supreme Court of Errors of Connecticut, 1828. 7 Conn. 66.)
This was an action qui tam, for taking usury, brought on the stat-
ute, to recover the value of the money alleged to have been loaned by
the defendant, to one Hezekiah Scott, on a corrupt and usurious agree-
ment.
On the trial, Hezekiah Scott, named in the declaration as the bor-
rower of the money, was offered as a witness by the plaintiff, to prove
the alleged usury. Upon his cross-examination, he was asked, by the
defendant's counsel, whether he had not been in a controversy with
the defendant, and whether he had not threatened that he would be
revenged on him for collecting of him the note mentioned in the plain-
tiff's declaration, to each of which inquiries Scott, the witness, an-
swered in the negative. And thereupon the defendant offered Rich-
ard Bryan and others, as witnesses, to prove that Scott had been in
controversy with the defendant, and had threatened that he would
be revenged on him for collecting said note. These witnesses were
objected to, by the plaintiff; and the judge rejected them. The plain-
tiff obtained a verdict ; and the defendant moved for a new trial, on
the ground that these decisions of the judge were erroneous. 57
Daggett, J. It is very clear, that a witness, on his cross-examina-
tion, may be questioned as to his being in a controversy with the
party against whom he testifies, and whether he has not threatened
to be revenged on him. If he should answer affirmatively, it would
show a bias on his mind, which ought to be weighed by the jury, in
considering his testimony. To such a witness as full belief will not
be readily yielded as to one who feels no such hostility. If the wit-
ing a witness to be infamous ought not to produce him, and must not be al-
lowed to take the chance of his answers and then bring evidence to contra-
dict him. We do not interfere with that rule. There are treacherous wit-
nesses who will hold out that they can prove facts on one side in a cause,
and then for a bribe or from some other motive, make statements in sup-
port of the opposite interest. In such cases, the law undoubtedly ought to
permit the party calling the witness to question him as to the former state-
ment, and ascertain, if possible, what induces him to change it. It is not
now necessary to ask whether a person to whom the former statement was
made may be called to contradict the witness ; for it was not done here. Tbe
point is one upon which judges have differed, and opinions may vary to the
end of time. As to the remaining question: Where a witness alleges a fact
contrary to the interest of the party calling him, it is clear that the party
may bring others to prove opposite, facts, relevant to the case."
For further comments on this subject, see opinion of Justice White in Put-
nam v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118 (1896).
Where the English rule as to the extent of cross-examination prevails, a
party does not make a witness his own by cross-examination as to any
vant matter, so as to preclude proof of contradictory statements. Johnson v.
Armstrong. 97 Ala. 731, 12 South. 72 (1893). The rule appears to be other-
wise where cross-examination is restricted. T.amhert v. Armentrout, 65 W.
Va. 375, 64 S. E. 260, 22 L. R. A. (N. S.) 556 (1909).
Bf Statement condensed and part of opinion omitted.
3S2 WITNESSES (Ch. 2
ness should answer in the negative, it is equally clear, he may be con-
tradicted by other proof. A witness may always be asked any ques-
tion relative to the issue, for the purpose of contradicting him, if his
answer be one way, by other witnesses, in order to discredit his whole
testimony. "Falsus in uno, falsus in omnibus," has become a familiar
maxim. Such has been the invariable rule in our country ; and such
is the rule of the common law. In upwards of forty years practice,
I have not known it to be doubted. It is true, a witness may not be
interrogated as to any collateral independent fact. This would be to
try as many issues as a party might choose to introduce, and which
the other party might not be prepared to meet. Spencely qui tam,
v. De Willott, 7 East, 108. The question whether the defendant had
a controversy with the witness, and had threatened to be revenged,
surely was relevant to the issue; for it tended to prove such a state
of mind towards the defendant, as might well be submitted to the
jury to discredit his testimony as to material facts. There is hardly
a point about which there can be less doubt. Swift's Ev. 148 ; Turner
v. Austin, 16 Mass. 185 ; Tucker v. Welsh, 17 Mass. 160, 9 Am. Dec.
137; 2 Camp. Rep. 630; 1 Stark. Ev. 135. "In such a case, (says the
learned commentator,) the inquiry is not collateral, but most important
to show the motives and temper of the witness in the particular trans-
action." * * *
New trial granted. 58
ATTORNEY GENERAL v. HITCHCOCK.
(Court of Exchequer, 1S47. 1 Exch. 91.)
This was an information at the suit of the Attorney-General, which
charged the defendant, a malster, with having used a certain cistern
for making malt, without having previously entered it, as required by
the statute 4 & 5 Will. 4, c. 51, s. 6.
At the trial, before Pollock, C. B., at the sittings after last Easter
term, a witness of the name of Spooner, who deposed to the fact of
the cistern having been used by the defendant, was asked, on cross-
examination by the defendant's counsel, whether he had not said that
the officers of the Crown had offered him £20 to say that the cistern
had been used. Spooner denied having said so, and thereupon the
defendant's counsel proposed to ask another witness of the name of
Cook, whether Spooner had not said so. The Attorney-General object-
ed to this question, and the Lord Chief Baron, being of opinion that the
question was irrelevant to the issue, and that it also tended to raise a
collateral issue, held the objection good, and ruled that it could not be
put.
»aAnd so in State v. Darling, 'J"- Mo. L50, 100 S. W. 631 (190G).
Sec. 4) - EXAMINATION OF WITNESSES 383
Bovill obtained a rule for a new trial, on the ground that this evi-
dence was improperly rejected, and cited Meagoe v. Simmons, 3 C. &
P. 75, and Yewin's case, 2 Campb. 638, (n).
Pollock, C. B. 59 I am of opinion that this rule should be dis-
charged ; and I may also add, that my brother Parke expressed him-
self to be of that opinion before he left the Court. The question is,
whether the witness Spooner, who had been asked if he had not said
that the officer had offered him a bribe for the purpose of saying that
the cistern had been used., and who stated that he had not said so,
could be contradicted by asking the other witness, Cook, if Spooner
had not made that statement to him? The circumstance of Spooner
being the only witness to prove that fact cannot affect the point, which
must stand or fall by this general question, and by the answer to it,
namely, on what occasions can evidence be admitted to contradict a
witness, as to what he denies having said on cross-examination. I
think, whether the answer be given in the terms used by me at the
trial, or whether it be in effect as my Brother Alderson has put it in
the course of the argument this morning, the result is the same. I
have always understood, — and it is a matter on which I am not now ex-
pressing an opinion the result merely of the argument and considera-
tion of to-day, and of the other day when the matter was before the
Court, but the result of much consideration given to such questions dur-
ing great experience in these matters, and with questions respecting the
law of evidence, — my view, I say, has always been, that the test, wheth-
er the matter is collateral or not, is this : if the answer of a witness is a
matter which you would be allowed on your part to prove in evidence
— if it have such a connection with the issue that you would be allow-
ed to give it in evidence — then it is a matter of which you may con-
tradict him. Or it may be as well put, or perhaps better, in the lan-
guage of my Brother Alderson this morning, that if you ask a witness
whether he has not said so and so, and the matter he is supposed to
have said, would, if he had said it, contradict any other part of his tes-
timony, then you may call another witness to prove that he had said
so, in order that the jury may believe the account of the transaction
which he gave to that other witness to be the truth, and that the state-
ment he makes on oath in the witness-box is not true.
As to the authorities cited by Mr. Bovill, with the greatest respect
for the learned writers whose words he has quoted, I must say I think
the expression, "as to any matters connected with the subject of in-
quiry,'' is far too vague and loose to be the foundation of any judicial
decision. And I may say, I am not at all prepared to adopt the propo-
sition in those general terms — that a witness may be contradicted as
to any tiling he denies having said, provided it be in any way connect-
ed with the subject before the jury. It must be connected with the is-
sue as a matter capable of being distinctly given in evidence, or it must
6 Opinions of Alderson and Rolfe, BB., omitted.
3S4 WITNESSES • (Ch. 2
be so far connected with it as to be a matter which, if answered in a
particular way, would contradict a part of the witness's testimony ; and
if it is neither the one nor the other of these, it is collateral to, though
in some sense it may be considered as connected with, the subject of
inquiry. A distinction should be observed between those matters which
may be given in evidence by way of contradiction, as directly affecting
the story of the witness touching the issue before the jury, and those
matters which affect the motives, temper, and character of the witness,
not with respect to his credit, but with reference to his feelings to-
wards one party or the other. In the case cited, of Thomas v. David
[7 C. & P. 350] on the witness being asked whether she was not con-
nected in a particular manner with one of the parties, and having de-
nied it, the learned judge permitted evidence to be given to show that
the connection which she swore had not existed, did in reality subsist.
The object in doing so was, not to prove or disprove any part of her
testimony, but the evidence was received on the same ground as it was
in the case of Ex parte Yewin [2 Campb. 638] , where Mr. Justice Law-
rence permitted evidence to be given to contradict a witness as to his
having used expressions importing revenge. It is certainly allowable
to ask a witness in what manner he stands affected towards the op-
posite party in the cause, and whether he does not stand in such a re-
lation to that person as is likely to affect him, and prevent him from
having an unprejudiced state of mind, and whether he has not used
expressions importing that he would be revenged on some one, or that
he would give such evidence as might dispose of the cause in one way
or the other. If he denies that, you may give evidence as to what he
has said, not with the view of having a direct effect on the issue, but
to show what is the state of mind of that witness, in order that the
jury may exercise their opinion as to how far he is to be believed. But
those cases, where you may show the condition of a witness, or his con-
nection with either of the parties, are not to be confounded with other
cases, where it is proposed to contradict a witness on some matter un-
connected with the question at issue. And as to the latter class of
cases, it appears to me that no instance has been cited by Mr. Bovill
which amounts to an authority that you may contradict the witness on
any matter that is not directly in issue before the Court.
In this case it is admitted, that, with reference to the offering of a
bribe, it could not originally have been proved that the offer of the
bribe had been made to the witness to make a particular statement,
the bribe not having been accepted by him. And the reason is, that
it is totally irrelevant to the matter in issue, that some person should
have thought fit to offer a bribe to the witness to give an untrue ac-
count of a transaction, and it is of no importance whatever, if that
bribe was not accepted. It is no disparagement to a man that a bribe
is o I to him : it may be a disparagement to the person who makes
the offer. If, therefore, the witness is asked the fact, and denies it
or if he 1 I whether he said SO and SO, and denies it, lie cannot
Sec. 4) EXAMINATION OF WITNESSES 385
be contradicted as to what he has said. Lord Stafford's case [7 How.
St. T. 1400] was totally different. There the witness himself had
been implicated in offering a bribe to some other person. That imme-
diately affected him, as proving that he had acted the part of a subor-
ner for the purpose of perverting the truth. In that case the evidence
was to show that the witness had offered a bribe in the particular case,
and the object was to show that he was so affected towards the party
accused as to be willing to adopt any corrupt course in order to carry
out his purpose. It seems to me that, under these circumstances, this
evidence was properly excluded, and that, therefore, this rule should be
discharged.
Rule discharged. 60
HARDEN v. HAYS.
(Supreme Court of Pennsylvania, 1848. 9 Pa. 151.)
Rogers, J. 61 * * * The plaintiff having given evidence of the
execution of the will by the subscribing witnesses, viz. : by proving the
handwriting of Samuel Cochran, and by the testimony of Charles
Chessman, the defendants proposed to prove that Samuel Cochran,
the witness to the will, in conversation with the witness said repeated-
ly that the testator was not in his right mind when the will was drawn
and executed ; that he regretted he had drawn it or had anything to
do with it, and that it ought to be burned or destroyed. The evidence
so offered was rejected by the court, and this forms one of the promi-
nent points in the case. This testimony, if true, would be decisive of
the plaintiff's case. Its materiality cannot, therefore, be disputed. It
is equally clear that, had Cochran lived and been brought to the stand,
it would have been evidence of the most overwhelming character.
Cowden v. Reynolds, 12 Serg. & R. 281. But it is said that inasmuch
as he is dead, and his handwriting only proved, the evidence, from the
accident of death, must be excluded. The opinion of the court is not
without authority to support it, for the same point has been ruled in
Stobart v. Dryden, 1 Meeson & Welsby, 615. The reasons on which
the case was ruled are well summed up by Mr. Greenleaf, in his val-
uable Treatise on Evidence, vol. 1, p. 216, § 126. Such testimony was
overruled by the court, "because the evidence of the handwriting in
the attestation is not used as a declaration of the witness, but is offered
merely to show the fact that he put his name there in the manner in
which attestations are usually placed to genuine signatures, and the
second chiefly because of the mischiefs which would ensue if the gen-
6o See Williams v. State, 73 Miss. 820, 19 South. 826 (1S96), where a num-
ber of the cases are reviewed.
si Statement and part of opinion omitted.
Hint.Ev.— 25
386 witnesses (Ch. 2
eral rule excluding hearsay were thus broken in upon ; for the security
of solemn instruments would thereby become much impaired, and the
rights of parties under them would be liable to be affected at remote
periods by loose declarations of the attesting witnesses, which could
neither be explained nor contradicted by the testimony of the wit-
nesses themselves. In admitting such declarations, too, there would
be no reciprocity; for although the party impeaching the instrument
would thereby have an equivalent for the loss of his power of cross-
examination of the living witness, the other party would have none for
the loss of his power of re-examination."
That there is force in the reasoning of the court, I am not disposed
to deny, although I cannot agree to the first reason assigned. It is not
true at least in this state, where subscribing witnesses are not required
to a will, that the evidence of handwriting in the attestation is offered
merely as the declaration of the fact that he put his name there in
the manner in which attestations are usually placed to genuine signa-
tures. On the contrary, proof of the handwriting of a deceased sub-
scribing witness is not merely evidence that he attested the will, but
it is also proof of the sanity of the testator. It is evidence of that as-
serted fact, because the principle of law is, that no man would attest
the will of any but a sane person of sound, disposing mind, memory, and
understanding. On such evidence, without more, a will must be ad-
mitted to probate. It is in effect the attestation of the witness that
the testator was sane. In Hays v. Harden, 6 Pa. 409, it is ruled that
proof of the handwriting of the subscribing witness to a will, when
the witness cannot be called, is equivalent to his oath to the signature
of the testator. On this point several cases have been ruled, some
closely analogous, others directly in point. Indeed, I do not under-
stand it to be denied, that you may give evidence of the general char-
acter of the witness for truth and veracity to impeach or lessen the
weight due to the attestation. Nor can it be questioned, in this state
at least, after the decision of the case of Crouse v. Miller, 10 Serg. &
R. 155, in which it was held that where book entries were given in
evidence on proof of the handwriting of a deceased or absent witness,
his character either for truth or honesty might be impeached for the
purpose of destroying their credibility. This, it is true, is not the very
point, but it is analogous to the case in hand.
It is admitted by Baron Parke that a contrary doctrine had been ruled
in some cases in England, although very limited, as he says, indeed, in
point of number. It was so ruled by Lord Mansfield, in Wright v.
Littler, 3 Burrows, 1244; by Justice Heath at nisi prius; recognized
and approved by Lord Ellenborough ; and to this let me add, by
Bayley, J., in Doe v. Kid-way, 4 I lain. & Aid. 55. He (the attesting
witness t<- a bond), Justice Bayley says, must have been called if he
had been alive, and it would then have been competent to prove, by
cross examination, his declarations as to the forgery of the bond,
the party ought not, by the death of the witness, to be deprived of
Sec. 4) EXAMINATION OF WITNESSES 387
obtaining the advantage of such evidence. The same may be said of
5 Bing. 435. The weight of authority at the time of the decision of
Stobert v. Dryden, was all on one side, and opposed to the doctrine
of that case, which evidently was ruled on the ground of the dangerous
character of the testimony. In Losee v. Losee, Executors, 2 Hill, 609,
the Supreme Court of New York held that where an instrument is
read in evidence on proof merely of the handwriting of the attesting
witness, the adverse party may give evidence of the witness's bad char-
acter at the time of attesting, and show his subsequent declarations
that the instrument was a forgery. Chief Justice Nelson, who delivered
the opinion of the court, cites many cases in which the same doctrine
is held. The point came incidentally before the court in Fox v. Evans,
3 Yeates, 506. There the declarations of one of the witnesses to a will,
who was out of the state and had not been examined, was properly
overruled ; but it is evident from the remarks of the court, that if his
handwriting had been proved, evidence of his declarations to impeach
him would have been received. For when a party rests on his testi-
mony, it is open to attack either by proof of his general character, or
by proof of his repeated declarations.
The same point has also been ruled in McElwee v. Sutton, 2 Bailey
(S. C.) 128. There a deed was introduced on proof of the death and
handwriting of one Vail, the attesting witness, whereupon the opposite
party offered to show that Vail had frequently said the deed had been
ante-dated to protect the property from creditors. The evidence was
rejected, and for this cause, among others, a new trial was awarded.
O'Neil, J., who delivered the opinion of the court, after remarking that
the presumption arising from the attestation in question might be over-
come, added: "To do this nothing can be more satisfactory than to
show that the witness himself had said, 'Although I witnessed the deed,
yet I know it does not bear its genuine date, but was ante-dated to
save the property.' This is in effect a contradiction of the testimony
which the law presumes him to give." In North Carolina, where tres-
pass was brought for killing a slave, it was held that the slave's good
character was admissible to repel the presumption of his improper
conduct. Pierce v. Myrick, 12 N. C. 345. So in Gardenhire v. Parks,
2 Yerg. (Tenn.) 23, and Vandyke v. Thompson, 1 Har. (Del.) 109, the
same point was presented for decision in the case of deeds which had
been proved by the subscribing witnesses and subsequently recorded;
and it was in both instances determined that evidence of their bad
character might be given for the purposes of showing the instruments
were forgeries. In that class of cases the question becomes of primary
importance. Vide notes to 2 Hill, 612, and 1 Meeson & Welsby, 615.
From this array of cases, it must be agreed that on this side of the
Atlantic at least, the weight of authority is decidedly in favour of the
admission of the testimony. It is said that if any declarations, at any
time, from the mouth of subscribing witnesses who are dead, are to
be admitted in evidence, the result would be that the security of solemn
WITNESSES (Cll. 2
instruments would be much impaired. The rights of parties under wills
and deeds would be liable to be affected at remote periods by loose dec-
larations of attesting witnesses., which those parties would have no
opportunity of contradicting or explaining by the evidence of the wit-
nesses themselves. I admit there is force in this view of the case, and
that such testimony calls for vigilance and strict scrutiny, but I can-
not agree that this is a reason for the exclusion of the testimony al-
( o .:'.. 2T, thereby, in many cases, destroying the possibility of exposing
ad. forgen.-.. and villainy of even.- description, so apt to be practised
on persons of weak understandings, particularly when debilitated by
sickness and disease. It is better that we should incur the risk men-
tioned, than that we should sanction fraud and imposition. The re-
marks of Baron Parke show a distrust of courts and juries, and if
-hed to an excess would be an argument against all testimony what-
ever, which we all know has and will continue to be abused ; but that
would be a flimsy reason for excluding it altogether. Human testimony
may be uncertain, yet its introduction is a necessity with which we
cannot dispense. Courts and juries will make the necessary allowances
so as to attain the ends of justice by extracting the truth from the
attending circumstances.
The result of this novel doctrine, for it is nothing less, it seems to
me will be to produce this result, that a man who has a valid title to-
dav, bv the accident of death will have none to-morrow. To obtain this
questionable benefit it is hardly worth while to overturn a current of au-
thorities establishing a different principle. And be it remarked, not
a solitary case to the contrary has been cited on this side of the At-
lantic. And that the admission of the evidence is better calculated to
attain the ends of justice, would also appear from this, that the same
principle must be extended to cases where the subscribing witness is
out of the jur: n of the court. It is not difficult to see how
easv it would be to spirit away a subscribing witness on the eve of
trial, prove his handwriting, thereby giving full effect to his testimony,
and then excluding all testimony of his repeated declarations, that the
bond or will was a forger}' or a conspiracy to cheat or defraud. Es-
tablish this doctrine, and we shall not be without instances of attempts
to baffle justice by removing the witness, and thereby prevent the in-
troduction of proof, which the guilt}- know would destroy their claim.
I have, therefore, come to the conclusion we shall better attain the ends
of e by adhering to the law as established, than by adopting
fanciful theories, although supported by the authority- of some of the
members of the Court of Exchequer of acknowledged ability and tal-
ents. * * *
Venire de novo. 02
And so in the case of djine deflorations. Carver v. TV S . 164
IT __ 41 L. El. 00- Q£Q7). But see StoL>art v. Drvdcu, Hi W.
615
SeC. 4) EXAMINATION OF WITNESSES 389
BEAUBIEN et al. v. CICOTTE et al.
(Supreme Court of Michigan. 1864. 12 Mich. 450.)
Campbell, J. m This case arises upon the will of Antoine Beaubien.
deceased, probate of which was refused in the Probate Court, and in
the Circuit Court for Wayne county to which an appeal was brought.
The will was opposed on the grounds of incapacity, and fraud and
undue influence. The proponents now bring error, alleging that the
court below received and rejected testimony improperly. *
Dr. Smith, who had testified in his direct examination to the valid
execution of the will, and the capacity of the testator, was asked
whether he had not. on a certain occasion, at Mr. Beaufait's house,
had a conversation with George Mo ran and one Page, referring to
Beaubien's death and will, and declaring that if the family should
follow it up they would break the will, for it was not worth a snap of
his fingers. This he denied. Moran was called upon the stand and
asked whether, on that occasion. Smith made the remark mentioned
concerning the will. The question being objected to was discussed,
and withdrawn to introduce some preliminary inquiries which were ob-
-ected.to, and which related to the preliminary conversation touching
Beaubien's death, and whether Moran had any conversation with Smith
that night about the will. Smith having denied any conversation with
him on any subject. The grounds of the objection were not given, but
it is now claimed that the conversation, if had, was i mm aterial. We
think the contradiction comes properly within the rule of impeach-
ment. When a witness testifies on the stand that a paper was duly
executed by a competent testator, his statement on another occasion
that the instrument was worthless, is a clear contradiction on the very
essence of the issue. The case of Patchin v. Astor Mutual Ins. Co.. 15
X. Y. 268, where the same objection was made that is made here, t.
the statement was one of opinion and not of fact, is directly in vo::'.'.
It was in the witness's power, if he saw fit, admitting the con- :>n,
to explain that it was a mere matter of opinion, and based upon the
facts sworn to on the trial. Such a statement, however, upon so plain
a matter, is usually one which would be understood as intended to cov-
er facts ; and even if confined to opinion, it would, upon a question of
capacity, and coming from the attending physician and suz scribing
witness, be as directly material to the issue, because the witness's opin-
ion formed one of the most important pans of his
difficult to conceive how a subscribing v I declare a will
worthless, and yet not intend to convey a statement f stent
with testimony which should show it to have been made by a man of
sound mind, and acting without pressure. The preliminary questions
63
Statement and part of opinion omitted.
390 witnesses (Ch. 2
were necessary in order to identify time and place, and the fact of a
conversation. The subsequent rejection of testimony which should
have been received can not affect the admissibility of this. 84 * * *
COMMONWEALTH v. HAWKINS.
(Supreme Judicial Court of Massachusetts, 1855. 3 Gray, 463.)
Trial on an indictment for murder, before Shaw, C. J., and Met-
calf and Bigelow, JJ. 05
Bolles, for the defendant, offered the depositions taken before the
coroner, at the inquest on the body of I_eet, for the purpose of con-
tradicting the evidence given by the same witnesses at this trial, when
called by the Commonwealth. The attorney general objected, on the
ground that the witnesses sought to be impeached had not been asked,
on their examination, whether they had not previously made different
statements, nor had their attention in any way called to their deposi-
tions before the coroner.
But the Court were of opinion that, for the purpose of impeaching
the witnesses, such parts of their depositions were admissible as were
contradictory of the evidence given by them at the trial ; that the uni-
form practice in this commonwealth, differing in this respect from that
of England, and some of the other states, had been, as stated in Tuck-
er v. Welsh, 17 Mass. 160, 9 Am. Dec. 137, to allow the introduction of
evidence that a witness had previously made different statements, with-
out first calling his attention to such statements ; G0 that after such parts
had been read, the Commonwealth would have the right to require
the whole of the former statement to be read, and might recall the
witness afterwards to explain- the alleged discrepancy.
Bolles then proposed to point out to the jury that these witnesses
had omitted, in their testimony before the coroner, material facts to
which they now testified, and which, he argued, were so important that
they could not have been omitted then, and remembered now, consist-
ently with the ordinary workings of a good memory and a good con-
science.
6* And so in Cora. v. Moinohan, 140 Mass. 403, 5 N. K. L'."'.* dssd); McFad-
in v. Catron, 120 Mo. 263, 25 S. W. 606 (1894). See Whipple v. Rich, ISO
Mass. 177. <',:: N. B. 5 (1002), where it was thought that the former statement
of :i Y.i!i..--- to nn accident, that the driver was not to blame, mighl he re-
celved to contradict his testimony, which tended to show carelessness on the
pari <>r the driver.
i':i rt of case omitted.
«o And so in Robinson v. Hutchinson, 31 Vt, 443 (1859); Inhabitants of
New Portland v. Inhabitants of Kingfleld, 55 Mo. 172 (1882); Cook v. Brown,
:;i v. II. 460 (1857).
For .-i review of the New England cases, see Eedge v. Clapp, 22 Conn. 262,
\ .,, Dei i'-'i (1853), in whicb it Is suggested thai the role is one of prac-
tice which may be rarled in the discretion of the judye.
Sec. 4) EXAMINATION OP WITNESSES 391
But the Court ruled that those parts only of the testimony before the
coroner could be read, for the purpose of impeaching the character
of the witness, which went to show a discrepancy or contradiction, as
by showing that the witness had given different accounts at different
times, by alleging a fact at one time which he denied at another, or by
stating it in two ways inconsistent with each other; and that the mere
omission to state a fact, or stating it less fully before the coroner, was
not a subject for comment to the jury, unless the attention of the wit-
ness was particularly called to it at the inquest. * * *
Verdict, guilty of manslaughter.
CONRAD v. GRIFFEY.
(Supreme Court of the United States, 1S53. 16 How. 38, 14 L. Ed. S35.)
Mr. Justice McLean delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United States, for
the Eastern District of Louisiana.
This action was brought to recover the balance of three thousand
seven hundred and eighty-one dollars and fifty-eight cents, claimed to
be due under a contract to furnish, deliver, and set up, on the planta-
tion of the defendant, in the parish of Baton Rouge, a steam-engine and
sugarmill boilers, wheels, can carriers, and all other things necessary
for a sugar-mill; all which articles were duly delivered.
The defendant in his answer set up several matters in defense.
The error alleged arises on the rejection of evidence offered by the
defendant on the trial before the jury, and which appears in the bill
of exceptions. The plaintiff read in evidence the deposition of Leon-
ard N. Nutz, taken under a commission on the 28th of June, 1852, and
filed the 9th of July succeeding. The defendant then offered in evi-
dence a letter of the witness dated at New Albany, on the 3d April,
1846, with an affidavit annexed by him of the same date, addressed to
the plaintiff Griffey. As preliminary proof to the introduction of said
letter, the defendant adduced the bill of exceptions signed upon a
former trial of this cause, and filed on the 23d February, 1
showing that the letter had been produced by the plaintiff in the for-
mer trial, and read by his counsel in evidence as the letter of Nutz, in
support of a former deposition made by him. And the said letter and
affidavit were offered by the defendant to contradict and discredit the
deposition of the witness taken the 28th June, 1852; but upon objec-
tion of counsel for the plaintiff that the witness had not been cross-
examined in reference to the writing of said letter, or allowed an op-
portunity of explaining the same, it was rejected.
•At the former trial the letter was offered in evidence by the plaintiff
in the Circuit Court, to corroborate what Nutz, the witness, at that
392 WITNESSES (Ch. 2
time had sworn to; and the letter was admitted to be read for that
purpose by the court. On a writ of error, this court held that the Cir-
cuit Court erred in admitting the letter as evidence, and on that ground
reversed the judgment. Conrad v. Griffey, 11 How. 492, 13 L. Ed. 779.
The rule is well settled in England, that a witness cannot be im-
peached by showing that he had made contradictory statements from
those sworn to, unless on his examination he was asked whether he had
not made such statements to the individuals by whom the proof was
expected to be given, In the Queen's case, 2 Brod. & B., 312; Angus
v. Smith, 1 Moo. & M. 473; 3 Stark. Ev. 1740, 1753, 1754; Carpen-
ter v. Wall, 11 Ad. & El. 803.
This rule is founded upon common sense, and is essential to pro-
tect the character of a witness. His memory is refreshed by the
necessary inquiries, which enables him to explain the statements re-
ferred to, and show they were made under a mistake, or that there
was no discrepancy between them and his testimony.
This rule is generally established in this country as in England.
Doe v. Reagan, 5 Blackf. (Ind.) 217, 33 Am. Dec. 466; Franklin
Bank v. Steam Nav. Co., 11 Gill & J. (Md.) 28, 33 Am. Dec. 687;
Palmer v. Haight, 2 Barb. (N. Y.) 210, 213; McKinney v. Neil, 1
McLean, 540, Fed. Cas. No. 8,865; United States v. Dickinson. 2
McLean, 325, Fed. Cas. No. 14,958; United States v. Brown, 4 Mc-
Lean, 378, 381, Fed. Cas. No. 14,668; Jenkins v. Eldredge, 3 Story,
181, 284, Fed.' Cas. No. 7,266; Kimball v. Davis, 19 Wend. (N. Y.)
437; Brown v. Kimball, 25 Wend. (N. Y.) 259. "The declaration of
witnesses whose testimony has been taken under a commission, made
subsequent to the taking of their testimony, contradicting or invali-
dating their testimony as contained in the depositions, is inadmissible, if
objected to. The only way for the party to avail himself of such
declarations is to sue out a second commission." "Such evidence is
always inadmissible until the witness, whose testimony is thus sought
to be impeached, has been -examined upon the point, and his attention
particularly directed to the circumstances of the transaction, so as to
furnish him an opportunity for explanation or exculpation."
This rule equally applies whether the declaration of the witness, sup-
posed to contradict his testimony, be written or verbal. 3 Stark. Ev.
1741.
A written statement or deposition is as susceptible of explanation,
as verbal statements. A different rule prevails in Massachusetts and
the State of Maine.
The letter appears to have been written six years before the deposi-
tion was taken which the letter was offered to discredit. This shows
the necessity and propriety of the rule. It is not probable that, after
the lapse of so ninny years, the letter was in (he mind of the witness
when his deposition v orn to. But, indej endently of the lapse of
time, the rule of evidence is a salutary one, and cannot be dispensed
SeC. 4) EXAMINATION OF WITNESSES 393
within the courts of the United States. There was no error in the
rejection of the letter, under the circumstances, by the Circuit Court;
its judgment is therefore affirmed, with costs.
Affirmed. 67
PEOPLE v. BROOKS.
(Court of Appeals of New York, 1892. 131 N. Y. 321, 30 N. E. 189.)
Earl, C. J. 08 The defendant was indicted for setting fire to the
store occupied by her in the city of Syracuse on the 27th day of Octo-
ber, 1890. She was brought to trial in the court of sessions of Onon-
daga county in February, 1891, and was convicted of arson in the first
degree, and was sentenced to the Onondaga penitentiary for the term
of 15 years. Her conviction having been affirmed by the general term
of the Supreme Court, she then appealed to this court.
The learned counsel for the defendant has brought to our attention
three grounds upon which he claims the judgment should be reversed.
Upon the trial the principal evidence adduced against the defendant
to show her guilt was that of Charlotte Brooks, the daughter of her
husband by a former wife, who was about 18 years old. She testified
that, three or four days before the fire, the defendant required her to
take an oath, by kissing the Jewish Bible, that she would not tell to
any one what she was about to say to her ; and that, after she had tak-
6 7 The first clear statement of this rule was made in Angus v. Smith.
Moody & Malkin, 473 (1829), by Tindal, C. J.: "As far as the contradiction
of the witness of the plaintiff is concerned, I am clearly of opinion that
the conversation proposed is not admissible in evidence. I understand the
rule to be, that before you can contradict a witness by showing he has at
some other time said something inconsistent with his present evidence, you
must ask him as to the time, place, and person involved in the supposed
contradiction. It is not enough to ask him the general question, whether
he has ever said so and so, because it may frequently happen that, upon the
general question, he may not remember having so said; whereas, when his
attention is challenged to particular circumstances and occasions, he may
recollect and explain what he has formerly said. I think, as far as my mem-
ory serves, the rule was so laid down to this extent in the Queen's case.
I will allow the plaintiff's witness to be recalled and asked the question."
Reporter's footnote to Angus v. Smith, supra: "See 1 Phill. Ev. 292. 5th
edition: and The Queen's case, 2 Brod. & Bing. 299 (1820). That decision
established the principle that it was necessary to remind the witness of
the conversation, but it does not appear from the report to have laid down
any rule as to the manner or degree in which it ought to be suggested to
him; and. the question there put to the judges assumed that the witness
had not been at all interrogated with respect to the declaration supposed
to have been made by him. The general practice, however, since that deci-
sion has been in conformity with the rule adopted in the principal case."'
That the rule is not varied by the fact that the contradictory statement was
made after the testimony was given, and that an examination of the witness
has become impossible, see Mattox v. U. S., 150 U S. 237, 15 Sup. Ct. 337,
39 L. Ed. 409 (1894), Shiras, J., dissenting. Compare Carver v. D. S., 104 U.
S. 094, 17 Sup. Ct. 228, 41 L. Ed. 002 (1897), admitting contradictory state-
ments to discredit a dying declaration. — Ed.
es Part of opinion omitted.
394 witnesses (Ch. 2
en the oath and promised that she would not tell, she said to her that she
had bills for goods to settle, and that there was a judgment against her,
and she was going to make a bonfire of the goods in the store, and burn
them up ; and that, after she had taken the oath, the defendant told her,
if she did tell what she had said to her, she would be sent to prison for
20 years for perjury. There was other evidence pointing to the guilt
of the defendant, and corroborating the story related by the witness
Charlotte. The defendant was called as a witness on her own behalf,
and these questions were put to her by her counsel: "Now, state
whether or not Charlotte was friendly to you or unfriendly." "Did
you and Charlotte have frequent difficulties during that time?"
(Meaning the time previous to the fire.) "Did Charlotte assault you
on other occasions previous to the fire?" All these questions were ob-
jected to on the part of the prosecution as incompetent, because Char-
lotte had not been examined as to the particular matters inquired of
on behalf of the defendant.
The trial judge sustained the objection, and excluded the evidence,
because Charlotte had not been examined as to the same matters, and
her attention had not been called to .the particular matters inquired of.
In making the ruling the trial judge said : "You have the witness here,
and can ask anything you wish of her that she has not testified to,
and, if you think she has not told the truth, you can ask the witness
about it ; and I think that is as far as you can go. I think the rule is
this : That a witness may be cross-examined as to his or her attitude
of mind in regard to the defendant, and his attention must be called
to each and all the transactions upon which the counsel for the de-
fendant desires to give evidence. If the witness admits the acts and
declarations that the defendant claims were made and done, that is the
end of it. If the witness denies, then I think it is competent to call
other witnesses to contradict those matters; but to let a witness go
off the stand, not having questioned the witness as to the particulars,
and then calling third parties to prove independent transactions show-
ing the attitude of the mind of the witness towards the party, I think
is not the rule. So I have allowed and do allow this witness to testify
as to any transactions bearing upon that point in regard to which the
witness Charlotte was examined." And the judge said, further: "I
should say that the witness referred to is in court now, so that there is
no loss to the defendant by the application of the rule as I understand
it." But the counsel insisted upon his right to examine the defendant,
for the purpose of proving Charlotte's hostility towards her, without
first examining Charlotte in reference to the same matter.
We think the rule of law laid down by the trial judge was errone-
ous. The hostility of a witness towards a party against whom he is
lied may be proved by any competent evidence. It may be shown
by cross-examination of the witness, or witnesses may be called who
can swear to facts showing it. These can be no reason for holding
that the witness must first be examin< d as to his hostility, and that then,
Sec. 4) EXAMINATION OF WITNESSES 39*
o
and not till then, witnesses may be called to contradict him, because
it is not a case where the party against whom the witness is called is
seeking to discredit him by contradicting him. He is simply seeking to
discredit him by showing his hostility and malice; and, as that may
be proved by any competent evidence, we see no reason for holding that
he must first be examined as to his hostility. And such we think is
the drift of the decisions in this state and elsewhere. Hotchkiss v. In-
surance Co., 5 Hun, 90; Starr v. Cragin, 24 Hun, 177; People v.
Moore, 15 Wend. 419; People v. Thompson, 41 N. Y. 6; Schultz v.
Railroad Co., 89 N. Y. 242; Ware v. Ware, 8 Greenl. (Me.) 42, 53;
Tucker v. Welsh, 17 Mass. 160, 9 Am. Dec. 137; Day v. Stickney,
14 Allen (Mass.) 255; Martin v. Barnes, 7 Wis. 239; Robinson v.
Hutchinson, 31 Vt. 443; New Portland v. Kingfield, 55 Me. 172;
Hedge v. Clapp, 22 Conn. 262, 58 Am. Dec. 424 ; Cook v. Brown, 34
N. H. 460. So we think the trial judge laid down an erroneous rule
of law.
But we are still of opinion that no harm was done to the defendant.
The extent to which an examination may go for the purpose of prov-
ing the hostility of a witness must be, to some extent at least, within
the discretion of the trial judge. We said about it, in Schultz v. Rail-
road Co., supra, that "the evidence to show the hostile feeling of a
witness, when it is alleged to exist, should be direct and positive, and
not very remote and uncertain, for the reason that the trial of the main
issue in the case cannot be properly suspended to make out the case of
hostile feeling by mere circumstantial evidence from which such hos-
tility or malice may or may not be inferred." Before these questions
were excluded, the defendant's counsel, on the examination of Char-
lotte, proved by her that she and the defendant had had frequent al-
tercations; that the defendant "used to whip her lots of times."
* * * We think there was ample evidence to show the state of feel-
ing between the defendant and Charlotte. * * *
Affirmed.
REX v. HODGSON.
(Court of Crown Cases Reserved, 1S12. Russ. & R. 211.)
The prisoner was tried and convicted before Mr. Baron Wood, at
the Yorkshire summer assizes, in the year 1811, on an indictment for
committing rape upon Harriet Halliday, spinster.
After the girl had given her evidence in support of the prosecution
she was cross-examined by the prisoner's counsel, who put these ques-
tions to her:
Whether she had not before had connections with other persons?
and whether she had not before had connection with a particular per-
son? (named).
396 witnesses (Ch. 2
The counsel for the prosecution objected that she was not obliged
to answer these questions ; but it was contended by the prisoner's coun-
sel, that in a case of rape she was.
The learned judge allowed the objection, on the ground that the
witness was not bound to answer these questions, as they tended to
criminate and disgrace herself, and said that he thought there was not
any exception to the rule in the case of rape.
The prisoner's counsel called witnesses, and among others, offered
a witness to prove that the girl had been caught in bed about a year
before this charge with a young man, and offered the young man to
prove he had connection with her.
The counsel for the prosecution objected to the admissibility of this
sort of evidence of particular facts, not connected with the present
charge, as they could not come prepared to answer them.
The learned judge allowed the objection, and the witnesses were not
examined.
The prisoner was found guilty; but the judgment was respited and
these points saved for the consideration of the judges.
On the 2d of December, 1811, this case was considered by all the
judges (except Mansfield, C. J., Macdonald, C. B., Grose, J., and_ Law-
rence, J., who were absent), and was postponed for consideration to
Hilary term, 30th January, 1812, when, all the judges being present,
they determined that both the objections were properly allowed."'
60
69 Lord Ellenborough in Rex v. Watson, 2 Starkie, 116 (1817): "This is
so clear a point, and so entirely without precedent, that it would be a wa
of time to call for a reply. For the purpose of ascertaining the credit due
to witnesses, the Court indulge free cross-examination; but when a crime
is imputed to a witness, of which he may be convicted by due course of law,
the Court know but on.' medium of proof, the record of conviction. It is the
constant practice at nisi prius not to receive such evidence without the
record of conviction. You may ask the witness whether he has been guilty
of such a crime, this, indeed, would be improperly asked, because he is not
bound to criminate himself, but if he does answer promptly, you must be
bound by the answer which he gives, for the Court does not sit for the pur-
pose of examining into collateral crimes. It would be unjust to permit it,
for it would be impossible that the party should be ready to exculpate himsel f,
by bringing forward evidence in answer to the charge, there would be no
aibility of a fair and competent trial upon the subject, and therefore it
is never done."
Kindi raley, V. O., in Goddard v. Parr, 24 L. J. Eq. (N. S.) 7S3 (Chancery,
L855): "1 cannot conceive that any doubt can arise upon this motion. It
is an established rule, that if one party calls a witness, and the other party,
In cro a-examination, asks a question to elicit the fact that the witness lias
been guilty of some crime or misdemeanour, the party so cross-examining has a
perfed right to put such a question; but then he must be content with the
answer he gets, and it is not competent for him to call witnesses to show
that the witness under examination has been guilty of any crime which is
quite ! ml to the matter in dispute. It would be very different if
the que tion bad any relevancy to the matter at issue between the parties
Here the question relates to some contract, or alleged contract, entered into
between certain persons; and the witness Stroud is .-ailed to prove the eon
, t. He makes an affidavit, and is then cross-examined by the other side,
;,,„! bi ed whether he ever told fortunes. Now, telling fortunes Is an
act which subjects u man to Legal punishment His answer is -Wo, 1 nev-
Sec. 4) EXAMINATION OF WITNESSES 307
REG. v. RILEY.
(Court of Crown Cases Reserved, 1S87. 16 Cox, 191.)
Lord Coleridge, C. J. 70 I am of opinion that this conviction must
be quashed, on the ground that evidence material to the issue was re-
jected by the court. The indictment was for an assault committed by
the prisoner upon a woman with intent to commit a rape upon her;
and the questions and answers that were rejected were tendered for
the following purpose; namely, that the woman having denied that
she had had connection with the individual accused of assaulting her,
it was sought ab aliunde to prove that at certain specified times and
places before the time of the commission of the alleged offence, she
had voluntarily had connection with the prisoner. It appears to me
clear that such evidence was admissible. Now, it has been held oyer
and over again that where evidence is denied by the prosecutrix with
regard to acts of connection committed by her with persons other than
the prisoner, she cannot be contradicted. The rejection of such evi-
dence is founded on good common sense, not only because it would put
very cruel hardship on a prosecutrix, but also on the ground that the
evidence does not go to the point in issue, that point being whether or
not a criminal assault has been made upon her by the prisoner. To
admit evidence of connection previously with persons other than the
er did. and I never have had any other occupation than that of a land agent
and surveyor.' Now, it is not contended but that this fact is entirely ir-
relevant to the matter at issue. After this, witnesses are examined by the
other side for the purpose of proving that the witness Stroud had told their
fortunes, and had been paid for it upon several occasions. One thing is ob-
vious, that if it is competent to do that, you may bring a host of witnesses to
contradict every fact that is stated, whether relevant or not. Suppose, for
instance, that when Fanny Duffin was called as a witness to show that Au-
stin Stroud told fortunes, she had been cross-examined, and had heen asked
whether she had ever been guilty of brawling in church, or any other crime
haying nothing to do with the matter in dispute. Then if she had answered
no it would be competent to bring other witnesses to prove that she had
been guilty of brawling in church. Then, again, any of these witnesses might
be asked the most simple questions, and others brought to contradict them;
so the matter might go on to all eternity. Anything more absurd one can-
not imagine. It would be contrary to justice in every way; and on this
ground the rule has been long since recognized for the purpose of putting
some limit to the examination of witnesses, that you can only call witnesses
to contradict evidence which is material to the question at issue between the
parties. Then it has been said that this question is relevant in this way,
that Stroud described himself as a land surveyor ; and if it can be proved that
he ever told fortunes, ergo he is not a land surveyor, and his evidence cannot
be believed as such. If the evidence had gone to prove that he was not a
land surveyor, then there might possibly be something in the question; but
the object is to prove that he did some act which is not within the vocation
of a land surveyor, and that he did some act which is contrary to the law.
It appears to me that the matter contained in these affidavits is scandalous.
and is utterly irrelevant to the matter in dispute between the parties. The af-
fidavits must, therefore, be taken off the file, and the party who filed them
must pay the costs."
to Statement and opinion of Pollock, B., omitted.
398 WITNESSES (Ch. 2
prisoner would be plainly contrary to the most elementary rules of
evidence; but to reject evidence as to the particular person is another
matter. Because not only does it render it more likely that she would
or would not have consented, but it is evidence which goes to the very
point in issue. Take the case of a woman having lived without mar-
riage for two or three years with a man before the assault ; could it be
contended that, had she denied it, proof of that sort was not material to
the issue ; and, if material to the issue, that if denied evidence to con-
tradict it could not be given. I see that Hullock, B. is reported to
have decided practically the very point upon which our opinion is
now sought. That appears from a note to the case of Rex v. Martin,
6 C. & P. 562, where the case of Rex v. Aspinall is cited. If that case
can be found it is directly in point, but, like Mr. Addison, I have look-
ed, and I confess I cannot find the case. It is enough for us to say,
however, in the absence of that case, that the decision is common sense ;
and on the ground not only of authority but of good sense, I am of
opinion, that this evidence ought not to have been rejected, and that,
as it was rejected, the conviction must be quashed.
Stephen, J. I am of the same opinion entirely, and have hardly
anything to add. I think that the weight of authority was decidedly
in the direction in which this decision will place it. Although some of
the authorities were rather in the nature of dicta than of absolute judg-
ments, I did not think, when I wrote upon the subject that there could
be much room for doubt ; but at the same time, in the absence of direct
authority, I did not feel that my statement could be made without sug-
gesting that there might be doubt. Now, however, by this decision the
doubt, if it existed, is removed. I may add, that our observations with
regard to evidence as to connection with other men being inadmissible
are not intended to exclude or conflict with the decisions as to the ad-
missibility of evidence as to prostitution.
Matiiew and Wills, JJ., were of the same opinion.
Conviction quashed.
COMMONWEALTH v. FITZGERALD.
(Supreme Judicial Court of Massachusetts, 1SG1. 2 Allen, 297.)
Indictment for being a common seller of intoxicating liquor. At the
trial in the superior court, William Tanner, a witness for the Com-
monwealth, testified to a purchase of liquor from the defendant, in
his tent upon a camp-field, and that he purchased no other liquor and
had no other on that day. The defendant offered evidence to prove
that the witness was seen to procure liquor at another tent on the same
day, but Lord, J., excluded it, as a mere contradiction of the witness's
testimony that he did not buy elsewhere; but ruled that "it was compe-
tent and would be admitted if offered to prove that the sale wa? iden-
tical with the one testified to, or if offered with other evidence to show
Sec. 4) EXAMINATION OF WITNESSES 399
that the witness bought and drank to such an extent as to become in-
capable to testify." The defendant was convicted, and alleged ex-
ceptions.
BigElow, C. J. The evidence offered was clearly incompetent for
the purpose of contradicting and discrediting the witness Tanner. The
fact that he bought intoxicating liquor at another place on the same
day on which the alleged sale was made to him by the defendant was
irrelevant and immaterial to the issue, and had no tendency to prove
or disprove the guilt of the defendant. It therefore came within the
well settled rule that evidence is inadmissible to contradict the testi-
mony of a witness on an immaterial fact, although such fact may
have been drawn out by the examination in chief. 1 Greenl. Ev. § 449 ;
Commonwealth v. Buzzell, 16 Pick. 157, 158.
The purposes for which the evidence was competent were correctly
stated by the court at the trial, and the defendant had an opportunity
to introduce it with a limitation as to its effect which was legitimate
and appropriate. It was certainly competent for the defendant to show
that the witness had been drinking to such excess as to impair his
ability to see and understand what was passing before him at the time,
and to recollect it afterwards, so as to testify intelligibly and with
accuracy. To this extent, he was permitted by the court to offer evi-
dence. We do not understand that the ruling of the court confined
the defendant to proof of total incapacity in the witness to testify to
the facts which he was offered to prove ; but it was left open to him
to show either total or partial intoxication, as tending to prove the
witness to be unworthy of credit in stating facts which occurred when
he was in such a condition. This ruling imposed no unreasonable
burden on the defendant.
Exceptions overruled. 71
EAST TENNESSEE, V. & G. RY. CO. v. DANIEL.
(Supreme Court of Georgia, 1893. 91 Ga. 768, 18 S. E. 22.)
Simmons, J. 72 Daniel sued the railway company for damages on
account of the killing of his mule. The defendant denied that the
mule was killed by its train. The evidence tending to prove that it
was killed by the defendant's train was altogether circumstantial and
presumptive, except that of one Lofton, who testified that he saw the
mule when it was struck by the train and knocked from the track.
Upon his cross-examination he was interrogated as to where he lived,
what his business was, and why he happened to be present at the time
" That the condition of the witness may be shown to affect the value of his
statements, see Mace v. Reed, S9 Wis. 440, 62 X. W. 1S6 (1S95) ; State v. Col-
lins, 115 N. C. 722, 20 S. E. 452 (1S94); People v. Wehster, 139 N. Y. 73, 34
N. E. 730 (1S93).
72 part of opinion omitted.
400 WITNESSES (Ch. 2
of the killing of the mule. In answer to these questions he stated,
among other things, as corroborative of what he had testified as to his
presence at the time of the injury, that he left home, and went to
town, for the purpose of purchasing some tobacco ; that he went to
Mr. Copeland's store, and purchased it on credit, and on his way home
he saw the accident. The defendant proposed to prove by Copeland
that Lofton did not go to his store and purchase tobacco at the time
referred to. This testimony was excluded by the court, and its ex-
clusion was made one of the grounds of the defendant's motion for a
new trial.
While the fact which the witness proposed to prove by Copeland
was not directly material on the circumstances of the killing, it was in-
directly material, because it contradicted the witness as to the train
of events which led him to be present, and thus tended to discredit
him as to the fact of his presence. If testimony had been offered by
the defendant to the effect that this witness was not present at the
killing; that he was not in town, or had not left home, that day, — it
is clear that no valid objection could have been made to it. And when
the witness undertook to corroborate his story, and show his presence
at the killing, by stating all his movements during the morning of the
killing, and that his going to Mr. Copeland's store to buy tobacco had
(ed him to be present, we think it was proper for the defendant to
disprove the statement of the witness on this point. Although it was
a collateral issue, it was a matter affecting his credit, and perjury could
be assigned on it. Bishop says : "The credit of a witness is always
an element adapted to vary the result of the trial of a fact. There-
fore, it is a collateral issue therein. And it is perjury to swear cor-
ruptly and falsely to anything affecting such credit as that he has not
made a specified statement material in the case ; that he has not ex-
pressed hostility to the defendant; that he has never been in prison."
2 Bish. Crim. Law, (8th Ed.) § 1032. And again: "Where the evi-
dence is simply to explain how the witness knew the thing he states,
as where, testifying to an alibi, he mentions the party's residence and
habits to show he could not be mistaken on the main point, since this
incidental matter may incline the jury more to credit the substantial,
it will sustain a conviction for perjury, if false." Id. § 1037. * * *
Judgment reversed. 78
73 in Scott v. U. S., 172 U. S. 343, 19 Sup. Ct. 269, 43 L. Ed. 471 (1899),
wh.n- the defendant undertook to explain the presence of certain marked
bills In his pocket by savin- that they must have heen put there by his
enemies, and on cross-examination named two persons as Bostile to him, it
ljej held proper to show that such persons were not in fact unfriendly to him.
ee Chicago City Ry. Co. v. Alien. L69 111. 287, 48 N. E. ill (1897), where
a witie Gained his presence by Baying that he had just 70ted at a cer-
tain polling place, and it was held thai the adverse party was not entitled to
.v that his residence was nut in that precinct
Sec. 4) EXAMINATION OF WITNESSES 401
STATE v. TAYLOR.
(Supreme Court of Missouri, 1889. 98 Mo. 240, 11 S. W. 570.)
Defendant was convicted on a charge of assault with intent to kill,
and appealed, assigning a number of errors.
Brace, J. 74 * * * 3. After the defendant had testified in his
own behalf, the state was permitted, over the objection of the de-
fendant, to introduce in evidence the original record of defendant's
conviction of the violation of a city ordinance in frequenting a bawdy-
house. On the trial of one for a criminal offense, it is not permissible
to show in evidence that the defendant has been guilty of another and
independent crime, totally disconnected from the one for which he is
on trial. When, however, the defendant goes upon the stand as a
witness in his own behalf, his credibility may be impeached to the same
extent, and in the same manner, as any other witness, except that he
cannot be cross-examined as to any matter not referred to by him in
chief. State v. Bulla, 89 Mo. 595, 1 S. W. 764; State v. Palmer,
88 Mo. 568; State v. Clinton, 67 Mo. 381, 29 Am. Rep. 506. Under
the statute, prior to the Revision of 1879, persons, convicted of arson,
burglary, robbery, or larceny in any degree, or any felony, were de-
clared incompetent to be sworn as a witness. Gen. St. 1865, p. 791,
§ 66. This disqualification was omitted from the Revision of 1879,
and since conviction of an infamous crime did not render a witness
incompetent ; but in two cases that have come to this court it has been
held that such conviction (for larceny) might be given in evidence to
affect the credibility of the witness. State v. Kelsoe, 76 Mo. 507;
State v. Loehr, 93 Mo. 103, 5 S. W. 696.
These cases, however, are not authority for the introduction of evi-
dence of a conviction of a mere misdemeanor, not infamous at com-
mon law or ever declared to be so by statute. The general moral
character of one who has been convicted of an infamous crime may
well be considered so degraded as that but little credit ought to be
given to his testimony, but it is not necessarily so of one who has been
convicted of a mere misdemeanor, or the violation of a city ordinance.
That conviction for such offenses cannot be given in evidence to im-
peach the credibility of a witness has been held by the courts of other
states, in which the disqualification to testify arising from the con-
viction of an infamous offense has been removed expressly by stat-
ute, but provision made that such conviction might be shown in or-
der to affect credibility, (Coble v. State, 31 Ohio St. 100; Glenn v.
Clore, 42 Ind. 60;) and it is not perceived why the same conclusion
should not be reached here, where the admissibility of such evidence
has been reached by construction. By a long line of decisions in this
7 4 Part of opinion omitted.
Hint.Ev— 26
402 WITNESSES (Ch. 2
state, it is established that evidence of bad general moral character
may be given in impeachment of a witness. This rule is invariably
coupled, however, with the qualification that single and particular in-
stances of moral delinquency cannot be shown. State v. Shields, 13
Mo. 236, 53 Am. Dec. 147; Seymour v. Farrell, 51 Mo. 95; State
v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507; State v.
Clinton, supra; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo.
133, 49 Am. Rep. 218; State v. Bulla, 89 Mo. 595, 1 S. W. 764. Con-
viction of an infamous crime tends to show a depraved and corrupt
nature, a bad general moral character. Conviction of a penal offense,
not infamous, may be consistent with a character generally good or
bad. The former is admissible in evidence ; the latter not, in im-
peachment of a witness' credit. The court erred in not sustaining the
defendant's objection to the introduction of the record of his con-
viction of a violation of the city ordinance. This conclusion renders
it unnecessary to consider the error assigned on the refusal of the
court to permit the defendant to introduce the pardon of the mayor
for the offense. * * * .
Reversed. 75
MAWSON v. HARTSINK.
(Nisi Prius, 1802. 4 Esp., 102.)
Assumpsit against the defendants, on two bills of exchange by the
plaintiff, as indorsee of the defendants, who had been partners in a
bank, called the Security Bank.
One of the defendants, Playfair, let judgment go by default; the
two others pleaded bankruptcy, having obtained their certificates.
Their certificates were impeached on the grounds of the two de-
fendants having been guilty of concealment; having lost money by
gaming in the stocks ; and that money had been given to induce credi-
tors to sign their certificates.
The facts, upon the part of the plaintiff in impeaching the certificates,
were proved by a witness of the name of Stanley Leathes.
The defendants proposed to impeach the credit of this witness, as
a person of infamous character, and not entitled to credit
it Holt, C. J., in Hex v. Warden of the Fleet, 12 Mod. 337 (1700): "And in
re peet to a person who had been burnt in the hand, if it were for man-
Blaughter, and afterwards pardoned, it wore no objection to bis credit, for
it was an accident which did not denote an ill habit of mind; but. secus if it
wire tor stealing, for that would be a great objection to bis credit, even after
pardon: but the record of conviction ought to be produced, winch here they
bad Dot."
I Qder the presenl Statute In Missouri, conviction of any offense appears to
be admitted for this purpose, state v . Blitz, 171 Mo. 530, 71 s. W. 1027
(1902). Bui not a conviction for a violation of a municipal ordinance. State
v. Mills, 272 Mo. 526, 199 8. W. L31 (1917).
Sec 4) EXAMINATION OF WITNESSES 403
The first witness was a person of the name of F. Reeves, the chief
clerk of the office at Bow street.
He was asked as to his knowledge of Leathes; and whether he
would believe him on oath.
He said, he had been before the Justices at Bow street ; and from
what passed there, he thought him a person whom he should be very
unwilling to believe.
Lord EllEnborough interfered, and said: He could not hold
this to be evidence. The transaction was ex parte; it was upon a
partial adduction of evidence on a charge against him at a public office,
from whence he had received an unfavourable opinion of Leathes, from
a story told without an oath. If the witness derived his information
from any particular source, falling within his own knowledge, it might
be otherwise.
Garrow then asked. Whether, in consequence of what passed at
the public office, he had made particular enquiries as to the witness's
general character?
Lord EllEnborough. That cannot be evidence. That informa-
tion must be from persons not on their oaths; perhaps not credible.
If this was allowed, when it was known that a witness was likely to be
called, it would be possible for the opposite party to send round to
persons who had prejudices against him, and from thence to form an
opinion, which was afterwards to be told in court, to destroy his
credit.
Garrow then put his question in this way: "Have you the means
of knowing what the general character of this witness was? and from
such knowledge of his general character, would you believe him on
his oath?"
Lord EllEnborough said: The question might be put in that
way, as it would then be open for the opposite side to ask, as to the
means of knowing the witness's character; so that it could be judged
of what degree of credit was due to the assertion, from the means
that the witness then called, had of informing himself and forming
his judgment.
Verdict for the plaintiff. 78
7 6 On the trial of O'Coiglev at bar on a charge of high treason. 27 How-
ell's State Trials, loc. 32 (1798), the defense called the Earl of Moira, to im-
peach a witness named Dutton who had testified for the prosecution:
"Mr. Dallas: Does vonr lordship know a person of the name of Dutton. a
quartermaster in the artillery? A. I have heard of him, I do not know him.
"Does your lordship know what is his general character?
"Mr. Garrow: His lordship says that all he knows of Dutton's character
is from hearsay. „_
"Mr. Dallas: I apprehend, that what Mr. Garrow states as a disqualifica-
tion, upon the part of the noble earl, to give such evidence, is by no means
so, when it comes to be accurately stated.
"Mr. Garrow: The constant practice, where character has been inquired
into, has been to put the question thus: Are you acquainted with such a
person? From your acquaintance with him, what is Ids general character?
But I never hea'rd that when a witness says, I do not know the person, but
404 witnesses (Ch. 2
KIMMEL v. KIMMEL.
(Supreme Court of Pennsylvania, 1S17. 3 Serg. & R. 336, 8 Am. Dec. 655.)
Error to the Court of Common Pleas of Somerset county, in which
a bill of exceptions was returned.
To impeach the character of Peter Kimmel, a subscribing witness
to the note on which the suit was brought, Jonathan Boyd was called,
who testified, "that he had known Peter Kimmel for eighteen or twen-
ty years; that he had lived at one time within four miles of him;
that he had bought goods from him, and paid him, and that he had no
knowledge of his general character but by report." The defendant
then proposed to ask the witness the following question, "What is the
general reputation of Peter Kimmel, in the county of Somerset, as a
man of truth?" This question was objected to on the ground that
the witness was incompetent to speak of Peter Kimmel's general char-
acter, because he professed to know nothing on the subject of his own
knowledge ; all his information having been derived from others ; and
that a witness must be able, from what he himself knows of a person's
have heard of him, that then it was asked, what have you heard of his
reputation.
"Mr. Dallas: I admit that hearsay would not be evidence of any particu-
lar fact, r.ut Mr. Garrow seems to have forgotten, that not long since he
himself stated that character was not fact, but a conclusion to be drawn
from a great number of facts, which might have happened in a very long or
a short life. Character, in my estimation of it, is no more tban the reputa-
tion wbich a man generally bears among those to whom he is known ; when,
therefore, a witness is asked with respect to the character of any particular
person, the verv question shows that it is not confined to the fact; but that
it goes beyond it; because he is not asked, from his knowledge of the per-
m, would he believe him, but whether, from his knowledge of the character
of thnt prison, he would believe him. If character is therefore no more
than Hi" vcneral opinion which is entertained of a person, by those to whom
he la well known, nothing can be more clear than that it is the general es-
ri. , : ,t; bicb ho stands— that general estimation to be collected from the
his general conversation; I take it to be perfectly clear, that it is
no obji ction in i his case to an account of character, to say that it amounts
only to hearsay, because, when one man gives the character of another, it
must be that which he has heard from others, for it extends beyond bis own
knowledge, and the question is generally put to an extent beyond his knowl-
, ,!-_., . i pon these grounds, I submit that I am entitled to ask the noble earl
,\ 1 1 : . i is the general character which this man bears.
"Mr. Justice Buller: Did you ever hear that asked when the witness said
he knew nothing about the person? •
"Mr Justice Heath; it must be founded in personal knowledge.
"Mr. Justice Buller: I must tell the jury that the coble lord says this
witness is not to be believed upon his oath, but he knows nothing of him.
Then I ive a right, on the other side, to ask to particular facts: -then
my lord Moira give us an instance. Suppose his lordship mentions his ap-
ome court of justice in Ireland; that the evidence he gave
there was not believed- the next question then is, were you present, did you
bear the trial, my lord? No. Do you know that he swore itv No.
"Mr. Justice Lawrence: The Question is always put in this way — Do 3
know the witness? res. Then, what do you know of him?
"Mr. Dallas: It is my duty to acquiesce; I have submitted my reasons."
ou
SeC. 4) EXAMINATION OF WITNESSES 405
character, to state what it is, otherwise his evidence will be secondary
and inadmissible. And of this opinion was the Court below, who sus-
tained the objection, and the defendant tendered a bill of exceptions.
Gibson, J. Although the very nice and subtle distinction taken be-
low, cannot in this case be sustained, I admit there may be cases where
even evidence of character may be excluded, on account of its being
hearsay, and not the best of which the nature of the case is susceptible ;
as where the witness may have never been in the neighborhood in
which the person, whose character is to be affected, resides, and
where the former may, in truth, have no other knowledge of the ac-
tual state of the reputation or common report of such neighborhood
than what he has gleaned from a single individual. The witness shall
not be permitted to say he was told that the person had either a good
or bad character in his own neighborhood. But that is a very differ-
ent thing from a knowledge of common report acquired, as in this case,
from common report itself. That knowledge of character which is
gained from report, cannot be considered as secondary; for report
constitutes character, and is, itself, the very thing of which the wit-
ness is called to speak. A competent knowledge of the subject can,
indeed, be acquired through no other medium, for particular instances
of, want of veracity, or private belief of destitution of moral principle,
arising from particular instances of misconduct, are always excluded.
A personal acquaintance with the individual to be affected, is unneces-
sary ; but it will be enough if the witness be acquainted with his char-
acter; which is a term convertible with common report. The witness
is to give not his own judgment of the matter, but the aggregate result
of at least a majority of the voices he has heard; or in other words,
(for after all there is, perhaps, no more plain or practical exposition
of the matter), he must state what the common report is among those
who have the best opportunity of judging of the habits and in-
tegrity of the person whose character is under consideration. There
is danger from the proneness, so often observable in witnesses to sub-
stitute their own opinion for that of the public, whose judgment can-
not be so readily warped by prejudice or feeling as that of an individ-
ual; and hence the policy of not requiring any intimate degree of
knowledge respecting the person himself, or of bringing the witness
too close to the scene. The reputation of the neighborhood is the
only thing that is competent; and if the witness has acquired a knowl-
edge of it by the report of the neighborhood, he is exactly qualified
to be heard.
Duncan, J. The bill of exceptions presents this case for the con-
sideration of the Court. Peter Kimmel has been examined as a wit-
ness on behalf of George Kimmel, the defendant in error. In order
to affect his credibility, one Jonathan Boyd was on examination, on
the part of the plaintiff in error, who swore as follows: "I have
known Peter Kimmel for eighteen or twenty years. I lived at one
time within four miles of him. I have bought goods from him, and
406 WITNESSES (Ch. 2
paid him. I have no knowledge of his general character except from
report."
This question was then offered to be put to the witness on the part
of the plaintiff in error. "What is the general reputation of Peter
Kimmel, in the county of Somerset, as a man of truth ?" The Court,
on objection to this question by the defendant in error,- sustained the
exception, and overruled the testimony. This is a question of impor-
tance ; not from any difficulty in its solution, but because it is one of
daily occurrence in the trial of causes. The adherence to rules of
evidence is said to be one of the first duties of a Judge. They are fixed
and certain, as rules of property, not arbitrary or discretionary. Facts
are to be proved by positive testimony, or by circumstances from
which a jury may fairly deduce them. Character by reputation. Char-
acter and reputation are the same. 77 The reputation which a man
has in society is his character. Where, in judicial proceedings, char-
acter is made a part of the inquiry, it never can be proved by the
proof of particular facts. A man who is called on to give testimony,
is always subjected to the investigation of his general character. This
the law supposes he is ever prepared to defend. But miserable, indeed,
would be the situation of a witness, if every transaction of his life
was open to inquiry. No man could be prepared to repel every pos-
sible charge, that might be made against him, or refute, the imputa-
tion of every crime, that any man might be disposed to make. He is
not on his trial. His general character is the test, by which his credit
is to be adjudged.
A witness called on to impeach the credit of another, is never per-
mitted to speak of his knowledge of particular facts from which he
draws an opinion of the witness examined. All who are conversant
in courts of justice must have observed the reluctance with which wit-
nesses testify with regard to the character of other witnesses. Men
of the strictest veracity, and acting under the strongest impressions
of the sacred obligation of an oath, to testify the whole truth, too fre-
quently endeavor to evade a direct answer. How often do they, in the
first instance, state, I know nothing of my own knowledge but from
report? How often does the inquiry end in the very question put to
this witness, — "What is the general reputation of the witness exam-
ined, as to truth, in the county in which he lives?" If a witness was
not permitted to state the general reputation, there must be an end of
all inquiry into character. Particular facts cannot be given in evidence.
Opinion will not be evidence; for if it were, no witness would be
fe from the shafts of calumny. No man is to be discredited by the
mere opinion of another; few men live whom some do not think ill of.
But it is said, the witness must speak of his own knowledge. So he
must. But what is this knowledge? Not a personal, individual knowl-
edge of fai ts. I !'• knows, by reputation, what is the character of the
tt Compare Com. v. Stewart, l Serg. & R. (Pa.) 842 (1815), post, p. 431.
Sec. 4) EXAMINATION OF WITNESSES 407
man. Again, it is said, that in this case, the person called to impeach
the character of the witness examined, said he had his knowledge of
him but from report. General report is general reputation. General
reputation is general character. But the witness had known the man
from eighteen to twenty years; lived at one time within four miles
of him ; had dealings ; testified his opportunities of having acquired
a knowledge of his general character by a long acquaintance with him.
None so proper, then, to bear testimony as to his character. No ques-
tion could be put, the answer to which would so clearly establish his
character, his reputation for truth, or otherwise, as the one which the
court decided could not be put. This Court would, in a case which
they consider so clear, have, without any observations, directed the
reversal of the judgment; but as the counsel for the defendant in er-
ror, not from any doubts in his own mind, but from a desire that
the opinion of the Court, and the reasons of the opinion, should be
given, to prevent misapprehension on a subject which so frequently
must occur, has requested the Court to give not only the opinion, but
the reasons of it, according to the provisions of the law. This is now
done. 78
The judgment must be reversed, and a venire facias de novo
awarded.
COMMONWEALTH v. LAWLER.
(Supreme Judicial Court of Massachusetts, 1866. 12 Allen, 585.)
Indictment for being a common seller, and for single sales, of in-
toxicating liquor.
At the trial in the superior court, before Morton, J., the Common-
wealth relied on the testimony of Patrick Connell. In order to im-
peach him, the defendant called a witness and asked him, "What is
the general reputation of Connell for truth and veracity?'' The wit-
ness replied, "I have not heard it talked of a great deal." The de-
fendant then asked the several questions following; but all were ex-
cluded by the judge. "Have you heard his character for truth and
veracity called in question? If you have heard his character for truth
and veracity called in question, state what the common speech of peo-
ple is as to his character for truth and veracity. What is the general
reputation of Connell for truth and veracity, among those who speak
of it at all?" The judge ruled that the defendant might ask the wit-
ness what was the common speech of people as to Connell's character
for truth and veracity, but that the questions in the form put by the
defendant were inadmissible.
7 8 See Wetherbee v. Norris, 103 Mass. 565 (1ST0), approving the following
course at the trial: "The judge required of the defendant that each of the
witnesses should be first asked this question, 'Do you know the reputation of
the plaintiff for truth and veracity?' If the witness said he did, he was then
to be asked, 'What was that reputation?' "
40S WITNESSES (Ch. 2
The jury returned a verdict of guilty, and the defendant alleged ex-
ceptions.
Bigelow, C. J. The defendant has no valid ground of exception
to the ruling of the court. He was permitted to put to the witness the
proper inquiry as to the general reputation for truth of the person
whose character for veracity he sought to impeach. The questions
which were ruled out were calculated to elicit testimony to the prej-
udice of the witness offered by the government, from a person who
had no actual knowledge of his general reputation for truth. If an-
swered, they might have led to the introduction of evidence of particu-
lar instances of prevarication by the government witness, or of doubt
as to his truthfulness on some special occasion, without touching his
general character for veracity. The rule is perfectly well settled that
the evidence must be confined to the general reputation of the witness,
and the court did nothing more than hold the party to a strict observ-
ance of it, by requiring his questions to be restricted to that form of
inquiry solely.
Exceptions overruled. 78
BAKEMAN v. ROSE et ux.
(Court of Errors of New York, 1837. 18 Wend. 146.)
Error from the supreme court. The wife of Rose, previous to her
marriage, brought an action of assault, battery, and false imprison-
ment against Bakeman, in the Oswego common pleas, and established
her case by the testimony of a female of the name of Sally Holton.
The defendant proved, by a number of witnesses, that the character
of Sally Holton for truth and veracity was bad, and the plaintiff, by
a number of witnesses, proved her character for truth and veracity
to be good. The defendant also offered to prove that the reputation of
Sally Holton was that of a public prostitute. The plaintiff objected to
the evidence, and the court sustained the objection. 80
t» Baker, J., in Gifford v. People, 148 111. 173, 35 N. E. 754 (1893): "It Is
not necessary, as seems to have been supposed by counsel on both sides in
this case, that witness should have heard any considerable number of the
neighbors of the witness sought to be Impeached or sustained, speak of bis
reputation for truth and veracity. It may very well be that the reputation
for truth and veracity, or chastity, or common honesty of ;i person may he
known among his neighbors and acquaintances without having beard it gen-
erally discussed. Indeed, one whose word passes current among his associ-
nd neighbors, or who is received and accepted by society as a virtuous
man or woman, or whose honesty is nol questioned in a community In which
be lives will ordinarily excite no discussion or comment, and yet every per-
son In the community knows that he or she is accepted, recognized and re-
puted to ix> a truthful, virtuous or honest person."
opinion of Cockbum, 0. J., iu Beg. v. Rowton, 10 Cox, 25 (LSU. r »).
ko Statement condensed and concurring opinions omitted.
Sec. 4) EXAMINATION OF WITNESSES 409
By the Chancellor. 81 The first and most important question in
this case is, whether the plaintiff in error should have been permitted,
in addition to the usual inquiries as to the general character of the
principal witness against him for truth and veracity, to prove also
that she had the general character of a prostitute. As it is not the
business of this court to make laws, but merely to declare what the
existing law is, it is only necessary to say that it is perfectly well set-
tled, both in this state and in England, that the general character of
the witness alone can be inquired into for the purpose of impeaching
credibility ; that is, what is his general character for truth and verac-
ity ; or whether his general moral character is such that he is not en-
titled to credit. But you cannot prove that he has been guilty of any
particular crime, or species of crimes, or immoralities, or that he has
the reputation of being guilty of any particular class of crimes. You
cannot therefore inquire whether the witness has the general reputation
of being a thief, prostitute, murderer, forger, adulterer, gambler,
swindler, or the like ; although each and every of such offences, to a
greater or less degree, impairs the moral character of the witness, and
tends to impeach his or her veracity. And if a party is not permit-
ted to impeach the witness by proving that he has the general charac-
ter of a thief or a swindler, there can be no good reason why he
should be permitted to impeach the witness by showing a general repu-
tation of being unchaste. Indeed, it would be much safer for a fe-
male witness to permit the adverse party to prove the fact that she
was a common prostitute, than -to attempt to impeach her credit by
showing it by general reputation ; as thefe would be some chance of
refuting the charge, if it was false, in the one case, when there would
not be any in the other. Instead, also, of allowing the chastity of
female witnesses to be drawn in question in that manner, it would be
much better to resort at once to the principles of the Persian, Gentoo
and Mussulman laws, to which we were referred on the argument;
which do not allow the testimony of any female except in special cases,
where, from the nature of the facts to be proved, it is presumed no
male witness could have been present.
The question as to the admissibility of such evidence to impeach the
character of a witness, was distinctly passed upon by the supreme court
Of this state, more than twenty years since, in the case of Jackson v.
Lewis, 13 Johns. 504, and I believe the correctness of that decision has
never been doubted by the profession here. The only case I have been
able to find, in the courts of any of our sister states, in which a differ-
ent rule has been attempted to be adopted, is that of Commonwealth v.
Murphy, 14 Mass. 387, before the supreme court of Massachusetts. A
very loose note of this decision is stated by Mr. Tyng on the relation of
some other person ; and which, if ever made, was virtually overruled
by the same court in the subsequent case of Commonwealth v. Moore,
si Walworth.
410 WITNESSES (Ch. 2
3 Pick. (Mass.) 194. But even in Murphy's Case, if the report be cor-
rect, the party was not permitted to give evidence of general reputation
of unchastity. He was allowed to prove the actual fact that the wit-
ness was a prostitute, and had been the mother of several bastard chil-
dren. The decision, in any view of it, was wrong, and ought not to be
followed as a precedent here. * * *
Affirmed. 82
HOOPER v. MOORE.
(Supreme Court of North Carolina, 1856. 48 N. C. 428.)
Detinue for slaves, tried before Dick, J., at the last Caswell Su-
perior Court.
The plaintiff read in evidence the deposition of one Martha Bailey
as to the title of the slaves in question.
Another witness was offered, as to the general character of Martha
Bailey; and having testified as to that, he was asked by the defend-
ant's counsel whether, if he was a juror, from what he knew of her
general character, he would believe her on oath. The question was
objected to, but allowed by the Court. Plaintiff again excepted.
Verdict for defendant. Judgment and appeal. 83
Battle, J. * * * The third and last objection raises a question
of practice, in relation to the examination of witnesses called to im-
peach the characters of other witnesses, which we are not sorry to
have an opportunity of attempting to settle.
The question is, whether an impeaching witness, after he has stated
that the character of another witness is bad, can be asked whether,
from his knowledge of that character, he would, if he were a juror,
believe the witness upon his oath. We are decidedly of opinion that
such an enquiry, if permitted, gives occasion, either to improper re-
plies, or makes the witness usurp the province of the jury, and is,
therefore, wrong in principle, as well as embarrassing in practice. We
are aware that the rule to which we object has the sanction of the
English Courts, and has been referred to without disapprobation by
this Court. See State v. Boswell, 13 N. C. 209, and the authorities
there cited. By reference to the case just referred to, it will be seen
that what the Court said upon this subject was not necessary to the
decision, and that it was a mere statement of what was the English
practice, without much reflection whether the rule was well or ill
founded in principle. Those who have seen its application, must
have observed that the replies of the impeaching witnesses were often-
opinion of Senator Tracy, p. L50, for a good statement of the con-
trary view.
in Beveral Btatea >>:><i reputation for chastity or honesty may be shown.
State v. Sibley, 181 Mo, 531, •'::•. S. W. 167 (1895). For a collection of the
ee note to 2 Wlgmore, s 828.
»■> statement condensed and part of opinion omitted.
SeC. 4) EXAMINATION OF WITNESSES 411
er prompted by their own opinion of the witness, than by their knowl-
edge of his general character, that is, the estimation in which he was
held by others. .The replies, too, are very apt to be evasive and hypo-
critical. "The witness would believe him if he were disinterested, or
had no feeling in the matter, but otherwise, he would not believe him."
These and such like replies are improper, because they do not fairly
meet the inquiry, whether the character of the impeached witness is
so bad that he ought not be believed, though testifying under the sanc-
tion of an oath.
But the great objection to the rule is, that the impeaching witness is
called upon to do that which belongs exclusively to the jury. It is,
or ought to be, their province to pronounce whether a witness is to
be believed, and, consequently, whether a fact to which he testifies,
supposing him not to be mistaken, is proved. The character, whether
good or bad, of a witness, is a fact, and, of course, as to that, another
witness may testify. Whether that character, if bad, is so bad that he
ought not to be believed, is an opinion or conclusion which the law,
as a general rule, forbids a witness to -give, except in certain cases
where he testifies as an expert. Our Legislature has been careful in
guarding and preserving the exclusive province of the jury to decide
upon questions of fact, by prohibiting the judge from giving an
"opinion whether a fact is fully or sufficiently proved ;" Rev. Stat,
ch. 31, § 136; Rev. Code, ch. 31, § 130. We ought to be equally
careful in settling rules of practice, to protect the jury from an im-
proper invasion of their province by the witnesses. The evil arising
from such an invasion, is thus ably and forcibly set forth by Shep-
ley, J., in the case of Phillips v. Kingfield, 19 Me.. 375, 36 Am. Dec.
760: "To permit the opinion of a witness that other witnesses should
not be believed, to be received and acted upon by a jury, is to allow the
prejudices, passions and feelings of that witness to form, in part at
least, the elements of their judgment. To authorize the question to
be put, whether the witness would believe another witness on oath,
although sustained by no inconsiderable weight of authority, is to
depart from sound principles and establish rules of law respecting the
kind of testimony to be admitted for the consideration of the jury, and
their duties in deciding upon it. It would, moreover, permit the in-
troduction and indulgence, in courts of justice, of personal and party
hostilities, and of every unworthy motive by which man can be actuat-
ed to form the basis of an opinion to be expressed to a jury to influ-
ence their decision." See, also, Greenleaf on Ev. § 461. Our con-
clusion is, that the Judge erred in permitting die question to be put,
after it was objected to by the plaintiff.
Reversed. 84
84 Accord: Eastman v. Boston Elevated R. Co., 200 Mass. 412, S6 N. E.
793 (190S).
The Supreme Court of Michigan apparently follows the English practice
Hamilton v. People, 29 Mich. 1S4 [1874]), which is indicated hy the follow-
412 WITNESSES (Ch. 2
V. Corroboration and Support
BISHOP OF DURHAM v. BEAUMONT.
(At Nisi Prius, 1808. 1 Camp. 207.)
This was an issue out of Giancery to try whether previous to an
agreement being entered into in the year 1792, between the present
Bishop of Durham and the late Sir Thomas Blackett, Baronet, lessee
of certain lead mines, the 9th part of the ore dug from which belongs
to the Bishop, the agent of Sir Thomas Blackett, had represented to
his lordship, that the sum of £925. was the full annual value of this
9th part, or what other representation he had made on the occasion.
A suit in equity being instituted to set aside the agreement, this issue
was directed, to ascertain whether the plaintiff had been misled as to
the value of his portion of the ore by the agent of the person under
whom the defendant now enjoys the mines, in right of his wife. The
conversation, the import of which was questioned, took place on the
17th or 18th of August, 1791, between the Bishop and one Erasmus
Blackett, acting on the behalf of Sir Thomas, in the presence of a Mr.
Emme, the Bishop's secretary. The only two witnesses called, there-
fore, were Mr. Emme on the one side, and Mr. E. Blackett on the
other.
The former swore that in answer to a question from the Bishop,
Mr. E. Blackett said, that the sum of £925. was the full annual value
of the 9th part of the ore raised from the mines in question ; while
this gentleman himself swore, that in answer to the same question he
said, the sum of £925. was a full equivalent for the Bishop's 9th part,
meaning that this was as much as the lessee, who was at the expense
of working the mines, could afford to pay, and more than the Bishop
could make, by taking the ore in kind. The cause thus hanging upon
the testimony of these two persons,
The Attorney'General, for the defendant, proposed to call witnesses
to the character of Mr. E. Blackett. He contended that where fraud
and falsehood were imputed to a witness, there his credit might be
supported by evidence to his general character. And he cited as in
point the case of Doe ex dem. Stephenson v. Walker, 4 Esp. Cas. 50,
where the question being upon the validity of a will, and one of the
attesting witnesses having sworn that when the will was executed, the
' by Martin, B., in Reg. v. Brown, 10 Cox, c. c. 453 (1867): "in
Taylor on Bvidi ace, § 1324, it is said evidence may he adduced Impeaching a
witness's character for veracity. Bui here the evidence will be confined to
.■■nil reputation, and will not be permitted us to particular facts. The
mode of examining into tin- character of the person In question is to
the witness whether he knows his general reputation among Ids ueigh-
bors, what thai reputation Is, and whether from such knowledge lie would
Delieve blm on his oath.' That practice has always prevailed within my
lion."
SeC. 4) EXAMINATION OF WITNESSES 41H
pen was put into the testatrix's hand, she being then in a state of
stupid insensibility, and that in signing her name her hand was guided
without her knowing what she did, Lord Kenyon admitted evidence
to the character of the two other subscribing witnesses ; and it being
sworn that they were persons of great respectability, who were deemed
incapable of the misconduct imputed to them, the jury found a verdict
establishing the validity of the will. Here a direct fraud was imputed
to the witness, in having stated the 9th part of the ore to be greatly
under its value, and in addition to that, he was charged with perjury
in denying the false representation he had formerly made. Therefore
he came within the rule laid down by Lord Kenyon, and to enable the
jury properly to appreciate his testimony, an opportunity should be
given to shew the character for veracity and integrity which he had
always borne. For this purpose he offered to call Mr. Baron Wood,
who then sate on the bench beside his lordship.
The counsel on the other side said, they admitted Mr. E. Blackett
to be a man of respectable character; they did not impute perjury to
him, but only imperfection of memory; and as they were prepared
with similar evidence in support of their own witness, Mr. Emme, in
case it had been admissible, they declined arguing the point of law.
Lord EllEnborough. There is here no case laid for admitting
evidence to character. I fully accede to the doctrine laid down in
Doe on the demise of Stephenson v. Walker. 80 There the attesting
witnesses whose character was disputed were dead, and it was prop-
erly held that the party claiming under the will should have the same
advantage as if they had been alive. In that case they must have
been personally adduced as witnesses, when their character would
have appeared on their cross-examination, and being dead, justice re-
quired that an opportunity should be given to shew what credit was
to be attached to their attestation of the will. In like manner, the Court
of King's Bench held in the time of Lord Mansfield, that evidence
of the conduct of deceased witnesses might be received, to attract
credit to their testimony, or to destroy its effect. So in a case upon
the northern circuit, in which I was myself counsel for the defend-
ant, and which turned upon the validity of a false instrument, (wheth-
er a deed or a will I forget,) Mr. Justice Heath admitted as evidence,
a confession of the forgery which compunction had drawn from one
of the attesting witnesses in extremis. This confession only sup-
plied the place of what might have been obtained from cross-exami-
nation, had the witness survived ; and the propriety of admitting it was
never questioned. But here neither is the witness dead, nor is there
any shade cast over his character. Therefore in analogy to the case
of Doe v. Walker, or of any other case ever determined in Westmin-
ster-Hall, there is no colour or pretence for admitting evidence to
ss Accord: Provis v. Reed, 5 Bingham, 435 (1S29).
414 WITNESSES (Ch. 2
the character of the witness who has just been examined on the part
of the defendant.
The jury found a verdict for the plaintiff, establishing the fact,
that £925. had been represented as the full annual value of the Bish-
op's part of the lead ore.
Verdict for plaintiff. 86
REX v. CLARKE.
(Nisi Prius, 1817. 2 Starkie, 241.)
This was an indictment against the defendant for an assault upon
Mrs. Webb, with intent to commit a rape.
Upon the cross-examination of the prosecutrix, she was asked,
whether she had not been sent twice to the House of Correction, upon
charges of having stolen money from her master several years ago.
She admitted that she had, and stated, that she had since been admitted
into the Refuge for the Destitute, and had remained there nearly two
years ; and that she had, on going away, received a box of clothes and
a guinea, as a reward for her good behaviour.
On the part of the prosecution, the superintendent of the establish-
ment, called the Refuge for the Destitute, was called and examined
as to the conduct of the prosecutrix while she remained in that asylum,
and as to the practice of conferring rewards for good conduct.
Gurney, for the defendant, objected, that evidence of the witness's
good character could not be adduced, until her character had been
impeached by evidence aliunde, and that the cross-examination of
the prosecutrix as to her character, did not warrant the admission of
such evidence.
Scarlett for the prosecution, contended, that since the witness had
been examined as to particular facts, for the purpose of impeaching
her character, he had a right to call witnesses to confirm her, in the
account which she had given upon her cross-examination.
Holroyd, J. 87 The object of the cross-examination was to impeach
the character of the witness, and to show that she was not credible.
It is shown by this cross-examination that she has committed crimes.
A witness is then examined as to her situation and conduct since, in
order to repel the inference which might be drawn from her former
misconduct. I do not see why such evidence may not be let in for the
purpose of removing the impeachment of her character upon cross-
examination, as well as if it had arisen aliunde. The circumstances
which are offered, are offered with a view to show that the witness is
Accord: Tedena v. Schumers, 112 111. 2G3 (1S84) ; First Nat. Bank of
Bartlesville v. Blakeman, 19 Oki. 106, in Pac sum, 12 L. K. A. (N. «.) ;w4
(1907), annotated
it Opinion on other points omitted.
Sec. 4) EXAMINATION OF WITNESSES 415
not so unworthy of credit as she might have been considered to be, if
these circumstances had not intervened. It appears to me, that the
evidence is admissible. 88
The husband of the prosecutrix being examined, as to the com-
plaint made by the prosecutrix to him soon after the assault had taken
place.
Holroyd, J., held, that the fact of her having made the complaint
was evidence, as also was the description of her state and appearance
at the time ; but that the particulars of the complaint were not evi-
dence, as to the truth of her statement. 88
LOUISVILLE & N. R. CO. v. McCLISH
(Circuit Court of Appeals of the United States, 1902. 115 Fed. 268, 53
C. C. A. 60.)
Action for damages for the death of George McClish, alleged to
have been negligently run over and killed by a train operated by de-
fendant. 90
Day, Circuit Judge. * * * The witness Henry Wright, called by
the plaintiff, gave testimony tending to show that he was at work on
a telephone pole some distance south of the place of the injury; that
he saw McClish, with whom he was well acquainted, pass up along the
track northwardly shortly before the passenger train went in the same
direction. Further, that shortly after the passenger train passed he
saw parties bringing the body of McClish from the scene of the in-
jury. The company offered the testimony of three witnesses, tend-
ing, with more or less certainty, to show that Wright was not at this
pole that day, but was at a certain opera house until the body was
brought into town. Over the objection of the defendant company
the plaintiff was permitted to introduce the testimony of witnesses
to establish the general good character of the witness Wright for
truth and veracity. The question of the admissibility of this kind of
testimony has led to no little contrariety of decision in the courts
of this country. The practice is not regulated by any statute of Ten-
nessee, so far as we are advised, and is a question of general law, not
controlled by state decisions. Garrett v. Railroad Co., 41 C. C. A.
237, 101 Fed. 102, 49 L. R. A. 645. The question was presented to this
court under facts differing from those now before us in Spurr v. L .
S., 31 C. C. A. 202, 87 Fed. 713. * * *
In the present case we perceive in the character of Wright's cross-
examination nothing which tends to impeach his general character
ss Accord: People v. Gay, 7 N. Y. 378 (1S52).
so See Com. v. Cleary, post, p. 422.
»o Statement condensed and part of opinion omitted.
416 "WITNESSES (Ch. 2
for truth. It is true it is searching and exhaustive, but it relates
entirely to details of his alleged conduct and observation of McClish
to which he had testified in chief, and we think the doctrine of the
Spurr Case entirely applicable to the case in hand so far as that fea-
ture is concerned.
Did the contradiction of Wright by the witnesses who claim that
he was not where he says he was, and consequently could not have seen
what he attempted to describe, put in issue the general character of
the witness for truth, and thereby justify the introduction of witness-
es to sustain it? Greenleaf, who goes farther upon this subject
than many of the authorities are willing to follow in admitting this
class of testimony, supports the doctrine that the contradiction of a
witness by other testimony does not lay the foundation for the intro-
duction of other testimony supporting his general reputation for
truth. Greenl. Ev. § 469, and notes. What more is there in this case
than the contradiction of Wright by other testimony? It is true that
the contradiction is of that character that admits of no reconciliation
of the testimony upon any theory of honest mistake or failure of
memory. This is often true of witnesses whose general character for
, truth is unassailable. If, in every case where the witnesses are in
direct and irreconcilable conflict, general character proof can be in-
troduced, the disputed issues of fact will be lost sight of in a mass of
testimony sustaining or impeaching the various witnesses in the case.
The present case affords a striking illustration of the effect of the in-
troduction of this class of testimony, for we find no less than six other
witnesses at the trial whom it was deemed necessary to sustain by
proof of general reputation. If this practice is to be followed, as is
said in Russell v. Coffin, 8 Pick. 142, "great delay and confusion would
rise; and, as almost all cases are tried upon controverted testimony,
each witness must bring his compurgators to support him when he
is contradicted, and, indeed, it would be a trial of the witnesses, and
not of the action."
An attentive consideration of the cases and of the reasons upon
which they are founded leads us to the conclusion that the introduction
of this class of testimony should be confined to cases where an attack
has been made upon the character of the witness by some method
which tends to impeach his general character for truth. It is true
that contradicting testimony may have an effect indirectly to im-
peach in the mind of the trior the character of the witness contra-
dicted, but that is not the purpose of the testimony. It does not
matter how much a witness may be contradicted, his general char-
acter is presumed good until it is assailed by some recognized method
of impeachment. This may be undertaken by showing that the gen-
eral reputation of the witness for truth is bad, by showing by direct
proof or upon cross-examination that he has been convicted of an
infamous crime. In these instances lhe attack is made upon his char-
Sec. 4) EXAMINATION OF WITNESSES 417
acter, and is not so much upon his testimony in the particular case
as upon his unreliability as a witness. When his character is thus
assailed, the attack may be repelled by proof of general good rep-
utation for truth. Until it is impeached it is not in issue, and we
think the ends of justice will be subserved by confining the testimony
to the issues of fact essential to the determination of the controversy
before the court. While, as we have said, the cases are by no means
uniform upon this subject, the conclusion reached is sustained by many
well considered cases; among others: Wertz v. May, 21 Pa. 274;
Brann v. Campbell, 86 Ind. 516; State v. Ward, 49 Conn. 429; Webb
v. State, 29 Ohio St. 351 ; State v. Archer, 73 Iowa, 320, 35 N. W.
241; Russell v. Coffin, 8 Pick. (Mass.) 142; Brown v. Mooers, 6
Gray (Mass.) 451 ; Gertz v. Railroad, 137 Mass. 77, 50 Am. Rep. 285 ;
Stevenson v. Gunning's Estate, 64 Vt. 609, 25 Atl. 697; People v.
Gay, 7 N. Y. 378; Tedens v. Schumers, 112 111. 263. * * *
Judgment reversed.
RUSSELL et al. v. COFFIN.
(Supreme Judicial Court of Massachusetts, 1829. 8 Pick. 143.)
This was a writ of entry, dated the 19th of April, 1825, wherein the
demandant counted on his own seisin and a disseisin by James Bigelow,
who aliened to the tenant. The plea was, that Bigelow never disseised.
And the demandant was permitted to cross-examine Hedge as to the
testimony he had given in a certain deposition then in the counsel's
hands, which had not been read to the witness, nor in evidence, and
the witness having given testimony in some particulars different from
such deposition, and having testified to some things material in the
cause, not stated in his deposition, the counsel were permitted to give
the deposition in evidence to impeach his testimony. Whereupon the
tenant proposed to call witnesses to prove the general character of the
witness for truth. But this evidence was ruled out, and the counsel
for the defendant were permitted, in argument to the jury, to treat
the testimony of this witness as having been given falsely, with a view
to benefit the tenant; and the jury were instructed, that this was a
subject proper for their consideration; to all which the tenant ex-
cepted.
The jury found a verdict for the demandant. 01
Parker, C. J. * * * In regard to the objection, that the tenant
was not allowed to give evidence of the general character of Hedge,
one of the witnesses, we think it cannot prevail. Hedge was a subscrib-
ing witness to the deed from Winslow to William Coffin, but was not
examined by the demandants, from an apprehension that his testimony
si Statement condensed and part of opinion omitted.
ITixt.Ev.— 27
418 WITNESSES (Ch. 2
would be adverse. He was then introduced by the tenant, and was
cross-examined by the demandants, who afterwards read Hedge's dep-
osition, to contradict his testimony on the stand. There was nothing
irregular in this course; nor was there a right to go into evidence of
his general character, notwithstanding the attempt to impeach him by
contrasting his testimony given at a different time.
The position, as laid down by Starkie, cannot be carried to the ex-
tent contended for. He probably meant only, that where the questions
put in the cross-examination and the answers did impeach his gener-
al character, the other party might rebut by proving a good general
character. And so far we do not object to the principle. As in the case
stated by Starkie, the witness was asked, whether she had not been
twice committed to Bridewell, and answered that she had. This went
to affect her general reputation ; and the party who called her, was
allowed to prove, that since those commitments her character had been
fair and good.
But it never was decided, that if a witness was contradicted as to
any fact of his testimony, either by his own .declarations at other
times, or by other witnesses, evidence might be admitted to prove his
general good character. If this were the practice, great delay and
confusion would arise, and as almost all cases are tried upon contro-
verted testimony, each witness must bring his compurgators to sup-
port him when he is contradicted ; and indeed it would be a trial of
the witnesses and not of the action.
Xone of the objections prevailing, the judgment must be upon the
verdict. 02
DERRICK v. WALLACE.
(Court of Appeals of New York, 1916. 217 N. Y. 520, 112 N. E. 4 40.)
Pound, J. B3 The plaintiff, called as a witness in his own behalf, on
his cross-examination testified that on the 31st day of October, 1896,
he had been convicted of the crime of forgery in the second degree
and sentenced to Auburn State Prison for a term of 5 years and 8
months. He thereafter offered evidence of witnesses of his general
reputation in the community in which he lived. This was objected to as
incompetent, on the ground that his reputation had not been impeach-
ed, except by cross-examination, and was excluded, subject to his ex-
ception.
Although opposite views have been taken of this question, we think
that evidence of general good reputation should have been admitted.
The authorities on both sides are collected by Professor Wigmore in
his work on Evidence (section 1106), and the cases and text-books sup-
»? See elaborate opinion to same effect in Chapman v. Cooley, 12 Rich. (S.
C.) 664 (18
»3 Pa n of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 419
porting the rule are cited by Burford, C. J., in First National Bank
of Bartlesville v. Blakeman (1907) 19 Okl. 106, 91 Pac. 868, 12 L. R.
A. (N. S.) 364. It would be an affectation of research to appropriate
the result of their labors by extended citations. Enough to say that
such evidence has been admitted almost invariably in the jurisdictions
where the question has arisen. It seems, however, to have been as-
sumed that the courts in this state are against its admissibility, and a
brief review of the cases may prove helpful. * * *
The main question, therefore, remains an open one in this state.
Against the admissibility of the evidence it is urged that as a practical
proposition the calling of witnesses to general good reputation must
be limited to cases where witnesses are first called to impeach the
general character of the witness; otherwise, the trial of the main is-
sue would be obscured and delayed for the trial of collateral issues of
character, which would distract the attention of the jury. Tedens v.
Schumers, 112 111. 263, 267. But the instances when conviction of
crime is followed by reform and re-established good character are not
so numerous that the convenience of the courts will not permit the
former convict to show his good reputation. Here the witness was
called in the year 1913 and discredited by a conviction in the year 1896.
Is he to be discredited for life rather than permitted to call witnesses
to his present good character? Certainly not, unless for a better rea-
son than the application of a rule of mere expediency.
It is further urged that "records of convictions of crime exhibit the
bad character directly, and cannot be explained away by testimony as
to good repute." Wigmore, § 1106. In other words, the proof of con-
viction is proof of a particular circumstance and not of general bad
character, and, therefore, it does not logically open the door to rebut-
ting proof of general good character. But Holmes, J., in Gertz v.
Fitchburg R. R. Co., 137 Mass. 77, 50 Am. Rep. 285, holding that an
impeaching conviction may be rebutted by evidence of good character
says: "When it is proved that a witness has been convicted of a
crime, the only ground for disbelieving him which such proof affords
is the general readiness to do evil, which the conviction may be dis-
posed to show. It is from that general disposition alone that the
jury is asked to infer a readiness to lie in the particular case." He is
speaking of proof by the record of conviction, but it is not apparent
that any different rule should apply when the fact of conviction is prov-
ed on cross-examination.
In general the credibility of a witness is not to be impeached by proof
of a particular offense, such as the commission of a crime, except from
the mouth of the witness himself on cross-examination (Jackson v.
Osborn, 2 Wend. 555, 558, 20 Am. Dec. 649 ; Sims v. Sims, 75 N. Y.
466, 472) ; but conviction of a crime may be proved by the record for
the purpose of affecting the weight of testimony. By the Code of Civil
Procedure (section 832) it may also be proved by cross-examination
but, if proved at all, it must be proved either by the record or by cross-
420 WITNESSES (Ch. 2
examination. Newcomb v. Griswold, 24 N. Y. 298 ; People v. Cardillo,
207 N. Y. 70. 100 N. E. 715, Ann. Cas. 1914C, 255. Anciently an
outlawed felon was said to have a wolf's head (caput lupinum), so that
any one might kill him as he would a wolf. 1 P. & M. Hist. Eng. Law,
459. Later and until recently the convicted felon was disqualified as
a witness. Persons convicted of crime are now competent witnesses,
and the only purpose for which conviction can be shown is to affect
credibility by suggesting general bad reputation. Evidence of convic-
tion thus impeaches the general character for truth and veracity, and
may be met by evidence of general good character. Mere self-incrimi-
nation on cross-examination never disqualified the witness, and miscon-
duct thus confessed cannot be said to discredit character generally in
the community, in the sense that proof of conviction discredits it.
The judgment should be reversed, and a new trial granted, with costs
to abide the event.
Willard Bartlett, C. J., and CiiasE, Collin, Cuddeback, Car-
dozo, and Seabury, JJ., concur.
Judgment reversed, etc.
ELLICOTT et al. v. PEARL.
(Supreme Court of the United States, 1836. 10 Pet. 412, 9 I* Ed. 475.)
Mr. Justice Story 94 delivered the opinion of the court.
This is a writ of error to the judgment of the circuit court for the
district of Kentucky, upon a writ of right, sued forth on the 17th of
January 1831; in which the plaintiffs in error were the demand-
ants. * * *
The next exception is founded upon the refusal of the court to permit
testimony to be given of the declarations of one Kincaid (the sur-
veyor of Remey's survey) under the following circumstances : Kin-
caid had been examined as a witness for the demandants, (by way of
deposition), and the tenants, thereupon, gave in evidence the conver-
sations and declarations of Kincaid, to certain witnesses, in order
to discredit his (Kincaid's) testimony, and to show that he had stated
that the survey was made by him, at the mouth of Raccoon Creek, for
Remey, when it was his interest to place it at Pond Creek. The
'hmandants then, with a view to sustain Kincaid, and to support the
statements going to his interest, offered witnesses to prove the state-
ments and conversations of Kincaid at other times, corresponding with
the statements made in his deposition, relative to his making the sur-
veys of Thompson and Rcmcy ; and it being suggested by the demand-
ants, upon an inquiry from the court, that these statements and con
versations were sub equent to those testified to by the tenants' wit-
»* Part of opinion omitted.
SeC. 4) EXAMINATION OF WITNESSES 421
nesses; the court, upon an objection taken by the tenants, excluded
the evidence. In our opinion, the evidence was rightly excluded.
Where witness proof has been offered against the testimony of a
-witness under oath, in order to impeach his veracity, establishing that
he has given a different account at another time, we are of opinion that,
in general, evidence is not admissible, in order to confirm his testimony,
to prove that at other times he has given the same account as he has
under oath ; for it is but his mere declaration of the fact ; and that is
not evidence. His testimony under oath is better evidence than his
confirmatory declarations not under oath ; and the repetition of his
assertions does not carry his credibility further, if so far as his oath.
We say in general, because there are exceptions ; but they are of a
peculiar nature, not applicable to the circumstances of the present case ;
as where the testimony is assailed as a fabrication of a recent date, or
a complaint recently made ; for there, in order to repel such imputation,
proof of the antecedent declaration of the party may be admitted.
It is true that in Lutterel v. Reynell, 1 Mod. Rep. 282, 95 it was
held, that though hearsay be not allowed as direct evidence, yet it
may be admitted in corroboration of a witness's testimony to show
that he affirmed the same thing upon other occasions, and that he is
still constant to himself. Lord Chief Baron Gilbert has asserted the
same opinion in his Treatise on Evidence, p. 135. But Mr. Justice
Buller, in his Nisi Prius Treatise, p. 294, says: "But clearly it is
not evidence in chief; and it seems doubtful whether it is so in reply
or not." The same question came before the house of lords, in the
Berkeley Peerage Case, 4 Camp. 401 ; and it was there said by Lord
Redesdale, that he had always understood that for the purpose of im-
pugning the testimony of a witness, his declarations at another time
might be inquired into; but not for the purpose of confirming his
evidence. Lord Eldon expressed his decided opinion, that this was the
true rule to be observed by the counsel in the cause. Lord Chief Jus-
tice Eyre is also represented to have rejected such evidence, when
offered on behalf of the defendant in a prosecution for forgery. We
95 In this case, where a cotrespasser, who had not been joined as a de-
fendant, testified for the plaintiff, the Lord Chief Baron "also declared it
was agreed, that whereas William Maynard, one of the witnesses for the
plaintiff, was guilty, as appeared by his own evidence, together with the de-
fendants, but was left out of the declaration, that he might be a witness for
the plaintiff, that he was a good and legal witness ; but his credit was les-
sened by it, for, that he swore in his own discharge ; for that when these
defendants should be convicted, and have satisfied the condemnation, he
might plead the same in bar of an action brought against himself. But
those in the simul cum were no witnesses. Several witnesses were received,
and allowed, to prove, That William Maynard did at several times discourse
and declare the same things, and to the like purpose, that he testified now.
And the Lord Chief Baron said, though a hearsay was not to be allowed as a
direct evidence, yet it might be made use of to this purpose, viz., to prove
that William Maynard was constant to himself, whereby his testimony was
corroborated."
See opinion of Buller, J., in Rex v. Parker, 3 Douglas, 242 (17S0), disap-
proving the broad rule for which Lutterel v. Reynell was supposed to stand.
422 WITNESSES (Ch. 2
think this is not only the better, but the true opinion ; and well found-
ed on the general principles of evidence. There is this additional
objection to the admission of the confirmatory evidence in the present
case, that it is of subsequent declarations ; which would enable the wit-
ness at any time to control the effect of the former declarations, which
he was conscious that he had made, and which he might now have a
motive to qualify or weaken or destroy. * * *
Judgment affirmed. 00
COMMONWEALTH v. CLEARY.
SAME v. GUIHEEN.
(Supreme Judicial Court of Massachusetts, 1S9S. 172 Mass. 175, 51 N. E. 746.)
Holmes, J. These are indictments for unlawfully abusing a female
child under the age of 16 years. St. 1893, c. 466, § 2. They come here
on exceptions to evidence that the child "made complaint to her [moth-
er] the next morning after the occurrence as to what had been done
to her by the defendants the night before." It does not appear that
more was admitted than the fact that the child made complaint, with
sufficient to identify the subject-matter, and therefore it is not neces-
sary to consider whether the whole statement would have been admis-
sible if offered, as the district attorney asks us to decide. The only
question argued for the defendants is whether the statement appears,
as matter of law, to have been too remote in point of time to be admis-
sible. It is not argued that the common law in cases of rape does not
apply. See Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747; Com. v.
] lackett, 170 Mass. 194, 196, 48 N. E. 1087.
The rule that, in trials for rape, the government may or must prove
that the woman concerned made complaint soon after the commission
of the offense, is a perverted survival of the ancient requirement that
she should make hue and cry as a preliminary to bringing her appeal.
Glanville, 14, 6; Bract. 147a; Fleta, 1, c. 25, § 14; St. 4 Edw. I.
Stat. 2. Appeals became obsolete, and left rape to be dealt with by in-
dictment before the development of the modern law of evidence. Lord
Hale, after stating the old law as to appeals, quoting Bracton, went
on to deal with the evidence upon an indictment for rape. Having
stated that the party ravished might give evidence upon oath, the value
of which would be affected by corroborative facts, he recurred to the
matter of fresh complaint, and said that, if she "presently discovered
the offense, made pursuit after the offender," etc., "these and the like
are concurring evidences, to give greater probability to her testimony."
1 Hale, P. C. 632, 633.
»«An«l BO in Com. v. Jenkins, 10 Gray (Ma88.) 487 (185S). But see opin-
ion by Cooley, J., in Stewart v. People, 28 Mich. 83, 9 Am. Rep. 7s (i.sc.12).
Sec. 4) EXAMINATION OF WITNESSES 423
Obviously, this was suggested by, and merely echoed, the require-
ment in appeals, but it gave that requirement a more or less new turn.
If it means, what it has been taken to mean, that the government can
prove fresh complaint as part of its original case, it cannot be justified
by the general principles of evidence which now prevail. In general,
you cannot corroborate the testimony of a witness by proof that he
has said the same thing before, when not under oath. But Lord Hale's
statement of the law has survived as an arbitrary rule in the particular
case, notwithstanding the later-developed principles of evidence ; and,
although nowadays recognized as an exception attempted to be fortified
by exceptional reasons, still it is put upon the ground upon which it
was placed by his words. The evidence is not admitted as part of the
res gestae, or as evidence of the truth of the things alleged, or solely
for the purpose of disproving consent, but for the more general pur-
pose of confirming the testimony of the ravished woman. Reg. v. Lilly-
man [1896] 2 Q. B. 167, 170, 177; 3 Russ. Crimes (6th Ed.) 387,
see Grave's note (m); State v. Kinney, 44 Conn. 153, 155, 26 Am.
Rep. 436; Haynes v. Com., 28 Grat. (Va.) 942, 947, 948; Hornbeck
v. State, 35 Ohio St. 277, 280, 35 Am. Rep. 608 ; People v. O'Sullivan,
104 N. Y. 481, 486, 10 N. E. 880, 58 Am. Rep. 530; Bedingfield's Case,
14 Am. Law Rev. 830, 838; 3 Greenl. Ev. § 213; 1 McClain, Cr.
Law, §§ 455, 456.
It toliows that the complaint could not be rejected because it was
no part of the res gestae, or because, under our statute, the child was
too young to consent. The former point was argued by both sides,
seemingly under the mistaken notion that the complaint is substantive
evidence of the facts charged. The test is whether, according to the
principles of the exception, her having made the complaint tends to
corroborate testimony given by the child at the trial. It does not appear
whether the child testified or not, but it would seem that she did, and,
on the bill of exceptions, it must be assumed that she did. The only
question open, therefore, is whether it can be said, as matter of law,
that the complaint was made too late. This depends upon a preliminary
finding by the judge. Com. v. Bond, 170 Mass. 41, 43, 48 N. E. 756.
We cannot say that the admission of the evidence was not justified.
The alleged rape was between 9 and 10 o'clock in the evening. The
girl was not out of the alleged ravisher's company until half past 10,
when she entered a friend's house, crying, excited, and frightened.
The friend took her to her home at 12. She was still frightened and
trembling, and her mother put her to bed. She made the complaint the
next morning. It might have been found on this evidence that she was
not in a condition to speak until she had rested, and that she was
dealt with accordingly. Hill v. State, 5 Lea (Tenn.) 725, 732; State
v. Knapp, 45 N. H. 148, 155.
Some cases have cut free from the original ground, and intimate
that lapse of time before making complaint goes only to its weight,
not to its competency. State v. Mulkern, 85 Me. 106, 26 Atl. 1017;
424. witnesses (Ch. 2
State v. Niles, 47 Vt. 82, 86. But it is not necessary to lay down so
broad a rule. In extreme cases the evidence has been ruled out. People
v. O'Sullivan, 104 N. Y. 481, 490, 10 N. E. S80, 58 Am. Rep. 530.
Exceptions overruled. 97
MERCER et al. v. STATE.
(Supreme Court of Florida, 1898. 40 Fla. 216, 24 South. 154, 74 Am. St.
Rep. 135.)
Taylor, C. J. 98 * * * Several witnesses were introduced in re-
buttal by the state for the purpose of sustaining the general reputation
and character for truth and veracity of several other state witnesses.
This evidence was objected to by the defendants on the ground that
the witnesses for the state, whose characters were sought by it to be
sustained, had not been impeached by the defendants, and because their
reputation for truth and veracity had not been attacked, and was not at
issue. These objections were overruled, and the testimony admitted,
and this ruling is assigned as the tenth and twelfth errors. There was
no error here. The general characters of the state's witnesses whose
reputation for truth and veracity in the communities in which they
lived was sought to be established and sustained by the challenged evi-
dence had not been attempted to be impeached by any direct general
assault thereon, it is true ; but the defendants, as to each of said wit-
nesses, had not only, on cross-examination, and by their own witnesses,
undertaken to cast discredit upon them for truth and veracity, but in-
troduced various witnesses who testified to contradictory statements
alleged to have been made by them on other occasions respecting the
subject-matter of their testimony conflicting with the evidence at the
trial.
The rule governing the admissibility of evidence to sustain the gen-
eral character of a party's witness for truth and veracity is very well
settled, and is accurately stated by Judge Redfield in Paine v. Tilden, 20
Vt. 554, as follows : "It is now well settled that, whenever the charac-
ter of a witness for truth is attacked in any way, it is competent for
the party calling him to give general evidence in support of the good
character of the witness. And we do not think it important whether
the character of the witness is attacked by showing that he has given
contradictory accounts of the matter out of court, and different from
»t Apparently the earlier practice limited the evidence to the hare fact
thai ;i complaint had been made, excluding what was said in making such
complaint. State v. Jones, 01 Mo. svi (1875); People v. Hamilton, -'tis ill.
, x. i:. 329 < L915).
In Beg. v. Lillyman, 2 Q. B. 107 (1896), the question was elaborately con'
Bidered, and the conclusion reached that the details of the complaint should
admitted. See ame result in state v. he Wolf, 8 Conn, 93, 20 Am. Dec.
90 i For " of the time element, see State v. Patrick, 107
Mo. 117, 17 S. w. 666 (1891).
e* Part of opinion omitted.
Sec. 4) EXAMINATION OF WITNESSES 425
that sworn to, or by cross-examination, or by general evidence oi
want of character for truth." In Stevenson v. Gunning's Estate, 64
Vt. 601, 25 Atl. 697, it is said: "It is observable that a distinction i»
taken between an attack upon the character of the witness, as such,
for credibility, and the character of the testimony given, for belief. 1/
is only when the character of the witness for credibility is directly at-
tacked by general evidence regarding his standing and character foi
truth and veracity, or by showing that he has made contradictory oi
inconsistent statements either out of court or in court, or that he haa
been convicted of some crime, or engaged in some act affecting hi3
credibility, like suborning or attempting to suborn a witness or suppresn
testimony in the case on trial, that sustaining evidence can be used."
Phillips v. State, 19 Tex. App. 158; Glaze v. Whitley, 5 Or. 164; Clarh
v. Bond, 29 Ind. 555; Harris v. State, 30 Ind. 131 ; State v. Cooper, 71
Mo. 436; Burrell v. State, 18 Tex. 713; George v. Pilcher, 28 Grat
(Va.) 299, 26 Am. Rep. 350; Isler v. Dewey, 71 N. C. 14; Holley w.
State, 105 Ala. 100, 17 South. 102; 1 Greenl. Ev. § 462.
In addition to the proof by the state to sustain the general character
of its witnesses for truth and veracity, the state attorney was allowed,
over the objection of the defendants, to go further in its sustaining
proof, and to interrogate the supporting witnesses by independent ques-
tions as to the character for honesty of its sustained witnesses ; and
this ruling is assigned as the eleventh error. The majority of the court
are of the opinion that this ruling is reversible error. The general,
well-settled rule of law is that, when the character of a witness is gone
into, the only proper object of inquiry is as to his reputation for truth
and veracity. 1 Tayl. Ev. p. 257 et seq., and cases cited. Neither hi?
general character, nor particular phases or traits of character, can b«
gone into, but the inquiry must be confined to his reputation or charac-
ter for truth and veracity. The writer of this opinion, while concur-
ring in the correctness of the rule announced, cannot agree with the
majority of the court that the inquiry into the honesty of the state'*
witnesses permitted in this case is sufficient cause for reversal
l« 3p T
Judgment reversed.
COMMONWEALTH v. RETKOVITZ.
(Supreme Judicial Court of Massachusetts, 1915. 222 Mass. 245, 110 N. E. 203.)
Rugg, C. J." * * * Two witnesses called by the commonwealth
testified that they saw the defendant near the house of Domka Pereme-
bida a short time before her death. The counsel for the defendant stat-
ed, after cross-examination, in substance that he intended to show,
if he could, that these witnesses had concealed die facts, or that they
90 Statement and part of opinion omitted.
426 WITNESSES (Ch. 2
were unduly influenced to testify as they did, or that their testimony
was a recent contrivance. Thereupon, the commonwealth was per-
mitted, without objection, to call a witness, Violette, to show that these
two witnesses had made statements soon after the homicide similar
to those given by them in testimony. Upon this posture of the case
such testimony was competent.
The mere fact that a witness has made statements on other occasions
at variance with testimony given in court does not warrant the intro-
ducing of confirmatory evidence to the effect that he has given an ac-
count of the transaction at still other times in harmony with his sworn
testimony. A party may, for the purpose of discrediting an opponent's
witness, show that he has given two inconsistent narrations of the same
affair, one of which was necessarily untrue. As is pointed out with
clearness by Bigelow, J., in Commonwealth v. Jenkins, 10 Gray, 485,
488, when this is the state of the evidence it by no means relieves the
witness of the distrust thus cast upon him to prove that the story last
told was similar to an earlier version given by the witness. The two
inconsistent statements still remain. Hence, under these circumstanc-
es, such corroborating evidence is inadmissible.
This is the general rule. But there is an exception where the con-
tention is made that the testimony of a witness is given under a bias or
undue influence, arising from some late occurrence subsequent to the
main event, is a recent contrivance, or that the facts described in tes-
timony previously have been concealed under conditions which war-
rant the belief that, if they were true, the witness would have been
likely to have revealed them. In such a situation, evidence that the wit-
ness at earlier times before the intervention of these pernicious im-
pulses had made statements like those given in court has a legitimate
tendency to impugn the existence of these factors as operating causes
to produce the testimony and thus to fortify his testimony, and there-
fore should be admitted. The exception to the general rule is a narrow
one and is not to be extended ; but when the contentions of the parties
give rise to its application, it is well established. Griffin v. Boston, 188
Mass. 475, 74 N. E. 687; Brown v. Brown, 208 Mass. 290, 94 N. E.
465 See ' for a full discussion of all the principles, Com. v. Tucker,
189 Mass. 457, 479-485, 76 N. E. 127, 7 L. R. A. (N. S.) 1056.
* * * 100
too And so in Ferris v. Sterling, 214 N. Y. 249, 108 N. E. (or,, Ann. Cas.
L016D, 1101 (1915).
Sec. 1) HEARSAY 427
CHAPTER III
HEARSAY
SECTION 1.— THE GENERAL RULE 1
"The Attestation of the Witness must be to what he knows, and not
to that only which he hath heard, for. mere Hearsay is no Evidence ;
for it is his Knowledge that must direct the Court and Jury in the
Judgment of the Fact, and not his mere Credulity, which is very un-
certain and various in several Persons ; for Testimony being but an
Appeal to the Knowledge of another, if indeed he doth not know, he
can be no Evidence. Besides though a Person testify to what he
hath heard upon Oath, yet the Person who spake it was not upon
Oath ; and if a Man had been in Court and said the same Thing and
had not Sworn 2 it, he had not been believed in a Court of Justice;
for all Credit being derived from Attestation and Evidence, it can
rise no higher than the Fountain from whence it flows, and if the
first Speech was without Oath, an Oath that there was such a Speech
makes it no more than a bare Speaking, and so of no value in a Court
i Mansfield, C. J., in the Berkeley Peerage Case, 4 Campbell 401 (1S11):
"By the general rule of law, nothing that is said by any person can be used
as evidence between contending parties, unless it is delivered upon oath in
the presence of those parties. With two exceptions, this rule is adhered to in
all civil cases. Some inconvenience no doubt arises from such rigor. If ma-
terial witnesses happen to die before the trial, the person whose case they
would have established, may fail in the suit. But although all the Bishops
on the bench should be ready to swear to what they heard these witnesses
declare, and add their own implicit belief of the truth of the declarations,
the evidence could not be received. Upon this subject, the laws of other
countries are quite different ; they admit evidence of hearsay without scruple.
There is not an appeal from the neighboring kingdom of Scotland in which
you will not find a great deal of hearsay evidence upon every fact brought
into dispute. This has struck many persons as a great absurdity and de-
fect in the law of that country. But the different rules which prevail there
and with us seem to me to have a reasonable foundation in the different man-
ner in which justice is administered in the two countries. In Scotland, and
most of the continental states, the judges determine upon the facts in dis-
pute as well as upon the law; and they think there is no danger in their
listening to evidence of hearsay, because when they come to consider of their
judgment on the merits of the case, they can trust themselves entirely to
disregard the hearsay evidence, or to give it any little weight which it may
seem to deserve. But in England, where the jury are the sole judges of the
fact, hearsay evidence is properly excluded, because no man can tell what
effect it might have upon their minds."
2 See Brazier's Case, ante, p. 130, where a child was examined without hav-
ing been sworn.
428 hearsay (Ch. 3
of Justice, where all Things were determined under the Solemnities
of an Oath ; Besides, nothing can be more uncertain than the loose
and wandering witnesses that are taken upon the uncertain Reports
of the Talk and Discourse of others." Chief Baron Gilbert, Law of
Evidence (4th Ed. 1777) p. 149.
THE KING v. PAINE.
;Court of King's Bench, 1696. 5 Mod. 163.)
Information 8 tried at the bar by a Bristol jury, against one Samuel
Paine, a minister there, setting forth, that the defendant was the com-
poser, author, and publisher, of a most malicious and wicked libel
against the late Queen Mary, which was styled "Her Epitaph."
Upon not guilty pleaded, the case, upon the evidence, appeared to
be thus :
Paine wrote the libel, it being dictated to him by another. He aft-
erwards put it into his study, and, by mistake, delivered it to one
Brereton instead of another paper, who transmitted a copy thereof,
through several hands to the Mayor of Bristol, which occasioned the
mayor to send for Brereton to examine him, which he did upon
oath, but not in the presence of Paine. The defendant Paine was
afterwards examined by the mayor, and confessed, that he wrote the
libel, but that he did neither compose or publish it, but only delivered
it, instead of another paper, to Brereton; but it was proved, by hi<
servant, that he sent him to his study for a writing, and that he not
bringing the paper sent for, the said Paine fetched it himself, and
being in a room only with Dr. Hoyle the libel was repeated, but he
could not tell by whom ; but he remembered the first verse. Brereton
was now dead.
The question was, whether his depositions taken before the mayor
should be given in evidence at this trial ?
The counsel for the defendant insisted, that it could not be done
by law, because Brereton being dead the defendant had lost all op-
portunity of cross-examining him; that this case was not like an in-
formation before a coroner, 4 or an examination by justices of peace
3 I'art of case omitted.
« Bromwlch's Case, 1 Levinz, ISO (1667): "The Lord Morly and Bromwich
being Indicted for the murther of Hastings, the Lord Morly was tried by bis
peers before the Lord High Steward, and found guilty of Manslaughter, and
uiis dismissed without being put to his Book, or burnt in the Hand, accord-
ing to the Statute of 1 E. 6, c. 12. And now Bromwich being brought to his
trial at the Bar of the King's Bench, the Indictment was against the Lord
Morly for the lulling of Hustings, and against Bromwich for being present,
aiding and assisting; and 'twas proved by one Witness, That the Lord Morly
killed Hastings, but that at the same time they were fighting, Bromwich
made a Thrusl al Hastings, and thereupon the Lord Morly closed with bim
and killed bim; and the Depositions of two other Witnesses taken before the
Sec. 1) THE GENERAL RULE 429
of persons accused, and afterwards committed for felony, because
they have power by a particular statute 6 to take such examination
both of the fact and circumstances, and to put it in writing and cer-
tify it at the next general gaol delivery. But depositions of this nature
are never allowed to be read as evidence in a civil cause, and much less
in a criminal case. 8 * * *
The Court thereupon sent the Puisne Judge to confer with the
Justices of the Common Pleas; who returning, the Chief Justice
declared, that it was the opinion of both Courts that these depositions
should not be given in evidence, the defendant not being present when
they were taken before the mayor, and so had lost the benefit of a
cross-examination. 7
BREEDON v. GILL.
(Court of King's Bench, 1697. 5 Mod. 272.)
The plaintiff Breedon suggests, for a prohibition, that by the laws
of England, when an issue is joined between the parties it ought to be
tried by the evidence of witnesses viva voce, and not by notes or min-
utes of their testimony ; that an information was exhibited against him,
before the Commissioners of Excise, setting forth, that he was a
common brewer, and did keep a private storehouse without acquaint-
ing the said commissioners therewith ; that he was found guilty ;
and that he appealed from their sentence to the Commissioners of
Appeals, before whom the informer produced as evidence the minutes
taken before the Commissioners of Excise, and that the witnesses who
gave evidence there were still alive ; which minutes were allowed as
evidence by the Commissioners of Appeals, etc.
The question now was, Whether a prohibition should be granted, di-
rected to them, not to admit such evidence ? 8
Curia. The common law does not require, that witnesses shall be
examined viva voce, except where the trial is by jury. These dep-
ositions were taken in Court, where the evidence is entered ; and when
that is done, the party has nothing to do but to appeal from an injury
supposed to be done by an Inferior Court ; and it is very fair to trans-
mit that evidence which was given before them, and upon which they
gave their judgment. It is true, they would have the Commissioners
Coroner, which were now dead, were read to the same Effect, as they were
read before the Lords on the Trial of the Lord Morly, by the Opinion of all
the Judges of England."
» 1 & 2 P. & M. c. 13 ; 2 & 3 P. & M. c. 10.
8 For the general use of hearsay in criminal trials at an earlier period, see
2 Wigmore, § 1364.
» Ex parte affidavits have always been used in support of motions and
similar applications. Rex v. Joliffe, 4 Term R. 292 (1791).
s Statement condensed.
430 HEARSAY (Cll. 3
of Appeals try the cause de novo, which is contrary to the very nature
of an appeal. This statute directs, "that the commissioners shall pro-
ceed by the oath of witnesses, or the confession of the party." And
the last resort is in the Commissioners of Appeals, if they do not med-
dle with what is out of their jurisdiction; which is not the complaint
now, but only of the course and method of the proceedings. The case
of Shotter v. Friend, 1 Show. 172, which was lately adjudged in the
Court of King's Bench, comes near this case; for there a prohibition
was granted to the Consistory Court of the Bishop of Winton after
sentence, because they refused to allow the proof of a payment of a
legacy by one witness. But a prohibition was never yet granted to
any Ecclesiastical Court for proceeding according to such evidence as
is allowed by the common law.
For which reasons nothing was done at this time.
But after, in Easter Term, in the ninth year of William the Third,
upon further consideration, a prohibition was granted quoad the ad-
mitting of the depositions taken in writing before the Commissioners
of Excise, for the Commissioners of Appeal ought to examine the
witnesses de novo on the appeal. 9
THE QUEEN v. INHABITANTS OF LYDEARD ST. LAW-
RENCE.
(Court of Queen's Bench, 1841. 1 Gale & D. 191.)
On appeal to the Somersetshire sessions against an order for the
removal of Elizabeth Winter and Emma her child, from the parish of
Spaxton in the county of Somerset, to the parish of Lydeard St. Law-
rence in the same county, as the place of the last legal settlement of
William Winter, the husband of the said Elizabeth, the sessions con-
firmed the order subject to the opinion of this Court upon the following
case :
The examination of William Winter the younger, the husband of
the pauper, and William Winter, the father of the pauper's husband,
upon which the order of removal was made, were as follows :
"The examination of William Winter, now confined in Wilton gaol
in the said county for felony, taken on oath before me, one of her
Majesty's justices of the peace acting in and for the said county, this
15th day of July, 1840, who saith, that I am now about twenty-five
years old; I was born in the parish of Lydeard St. Lawrence, as I
have heard and believe; I have done no act whereby to gain a legal
settlement on my own account ; about January last 1 was removed by
an order of removal froip the parish of North Cadbury in the said
county to the parish of Lydeard St. Lawrence in the said county, the
For the use of su'ii evidence, where the witness is unavailable in poison,
i in tii^ ih-m Bectlon.
Sec. 1) THE GENERAL RULE 431
last legal place of settlement of my father William Winter, as I have
heard and believe ; I have a wife named Elizabeth, and one child named
Emma, aged about three years and a half.
"Sworn before me, F. Warre. William Winter." 10
Lord Denman, C. J. * * * The second question is to the suffi-
ciency of the examination in setting forth the place of the pauper's
birth-place. It is said that the only objection made, and intended to
be made, to the examination in this respect, is that, with reference to
the pauper, who speaks as to his birth-place, being a felon convict, and
so incompetent from infamy, the fact in question is not proved on cred-
ible testimony, and that the objection, therefore, to the evidence, as
being in itself hearsay, comes by surprise upon the respondents. I
think the word "credible" by no means confines the notice of objection
to the competency of the pauper, and that the appellants were entitled
to go into the objection, that the evidence as to the birth settlement is
entirely hearsay. That objection also must prevail, and the nature of
the iact to be proved does not make this an excepted case. Early recol-
lection may be evidence of the place of birth, but early recollection is
not the evidence set forth, but merely hearsay and belief. * * *
Order quashed.
COMMONWEALTH v. STEWART.
(Supreme Court of Pennsylvania, 1S15. 1 Serg. & R. 342.)
The questions involved in this case arose from an indictment against
the defendant, for keeping a disorderly house. It charged him with
"keeping a disorderly and ill-governed house, and unlawfully causing
and procuring for his own lucre and gain, certain persons, as well men
as women, of evil name and fame, and of dishonest conversation, to
frequent and come together in his said house, at unlawful times, as
well in the night as in the day, permitting them there to be and remain,
drinking, tippling, and misbehaving themselves to the great damage
and common nuisance of all the leige citizens of the commonwealth
there inhabiting, residing, and passing, to the evil example, &c."
On the trial at Nisi Prius before Judge Yeates, in January last,
Sarah Bond, a witness produced on the part of the prosecution, after
having stated several matters tending to show that the defendant kept
a disorderly house, was asked by the counsel for the commonwealth,
"whether the house was not a matter of general complaint by the
neighbours, as disturbing them?" The counsel for the defendant ob-
jected to the question, but the court permitted it to be put, and .reserved
the point. 11
io Statement condensed and part of opinion of Tx>rd Denman, C. J., and
concurring opinions of Patteson, Williams, and Coleridge, JJ., omitted.
ii Statement condensed, part of opinion of Tilghman, C. J., and pa«-t of dis-
senting opinion of Yeates, J., omitted.
432 HEARSAY (Ch. 3
Tilghman, C. J. * * * There is another exception to be consid-
ered, relating to certain evidence admitted on the trial. Sarah Bond,
a witness for the commonwealth, having proved several facts, tending
to show, that Stewart kept a disorderly house, was permitted to testify,
"that the house was a matter of general complaint by the neighbours,
as disturbing them." It seems that the gentlemen who prosecute for
the commonwealth have been in the habit of asking questions of this
kind. But the practice has not been acquiesced in, and is now brought
before this court for decision. It is agreed on all hands, that this is not
one of those cases in which hearsay evidence can be admitted. But it
is contended, that the complaint of the neighbourhood is a matter of
fact, and therefore, when the witness proves the complaint, she only
proves a fact within her own knowledge. I am not satisfied with this
ingenious distinction, which gets round and avoids an important rule
of evidence. In the same way all hearsay evidence may be introduced,
for it is always a fact, that the witness hears the other person speak,
and it is a fact that the words spoken by that person were heard by
che witness. But what is the consequence of receiving testimony of
this kind? The jury are influenced by declarations not made upon oath,
and the adverse party is deprived of the benefit of cross-examining
the person making those declarations. Let us analyze Mrs. Bond's
testimony. "The house was a matter of general complaint;" that is,
'.he neighbours said, that they heard noises in that house which dis-
turbed them. But we have only their words for that, and perhaps they
would have spoken differently upon oath. It was important to the
defendant to be permitted to ask what those noises were, and when
they were heard, that he might have an opportunity of contradicting
the evidence, or explaining the nature of the noise. It was important
too, to know who those neighbours were, that their character might be
inquired into. And why should they not be produced and examined
on oath ? They were close at hand. It appears to me, that the evidence
amounted to no more than the general reputation of a disorderly house,
and certainly that is not one of the cases in which general reputation
is evidence. I am of opinion, therefore, that a new trial should be
granted.
Y Kates, J. (dissenting). The principle on which the keeping of a
disorderly tippling house is punishable by a criminal prosecution, is,
that it disturbs the peace and quiet of the neighbourhood, and thereby
becomes a common nuisance. In the course of this trial, Sarah Bond,
who lived across the street, opposite to the defendant's house, swore
to specific disorderly acts committed therein, and that persons of bad
repute, old and young, male and female, black and white, frequented
it both by night and day. She heard fighting no less than nine or ten
times within the period of four or five months, the cry of murder is-
sued from the house, and many persons were collected there. She
herself was often disturbed by these noises. On the part of the prosecu-
tion, she was asked, whether the neighbours did not generally complain
Sec. 1) THE GENERAL RULE 43. f, >
of these disturbances, and the defendant's counsel objected thereto.
I had no hesitation in permitting the question to be asked, considering
these complaints as independent facts, the effects springing from the
causes specially detailed by the witness. No hearsay evidence, of any
particular disorders committed in the house, was admitted, but the
effects and consequences of these disorders on the feelings of others,
according with the feelings of the witness, were deemed by me to be
proper and legal testimony. Expressions of general uneasiness at the
moment, are distinct from hearsay evidence, for "out of the abundance
of the heart the mouth speaketh." I do not view these general com-
plaints in the light of reputation of the gross irregularities permitted
by the defendant in his house. These disorders were established by the
oaths of eight several witnesses. * * *
New trial granted.
BOYDEN v. MOORE.
(Supreme Judicial Court of Massachusetts, 1831. 11 Pick. 362.)
Trespass against a deputy sheriff for taking and carrying away four
horses, a wagon, &c. The defendant pleaded the general issue, and
filed a brief statement.
At the trial before Putnam, J., it appeared, that the chattels were
once the property of Charles Boyden, the plaintiff's son. Both parties
claimed under Charles, — the plaintiff, by virtue of a transfer from him
in January, 1831, and the defendant, by virtue of an attachment on
mesne process in favor of John D. Miles against Charles, made about
a week after the transfer.
To prove the transfer and delivery of the chattels, the plaintiff in-
troduced two witnesses, who testified that they were called to witness
the sale and delivery, and that Charles said to the plaintiff, "take the
property, do the best you can with it, pay yourself and pay the rest to
my creditors."
The defendant proved, that after the transfer, and on the same eve-
ning and the morning following, Charles was at Brooks's inn in Tem-
pleton, in possession of the property.
The plaintiff then offered to prove, that within one hour after the
transfer, he directed Charles to take the property to Brooks's and get
Brooks to keep it at the plaintiff's expense, and that the next morning
the plaintiff went to Brooks and told him that he owned the property
by virtue of a bill of sale, and that he would pay him for keeping it.
To these declarations of the plaintiff the defendant objected, but the
judge admitted them as part of the res gestae.
[A verdict was found for the plaintiff. If these declarations ought
to have been rejected a new trial was to be granted.] ia
1* Statement condensed and part of opinion omitted.
Hint.Ev— 28
434 HEARSAY (Ch. 3
Shaw, C. J., delivered the opinion of the Court.
The horses, the property in controversy, having been attached as the
property of Charles Boyden, son of the plaintiff, by a process, valid as
against the son, by the defendant, and being claimed by the plaintiff
under an assignment prior in point of time, the question is upon the
validity of this assignment. The fact that the vendor was in the pos-
session of the property, after the assignment, was proper evidence to
the jury, of fraud in the sale. To repel the conclusion arising from
this fact, the plaintiff offered evidence to show, that after the sale he
directed his son to take the horses to Brooks's inn, in Templeton, and
get the horses kept at his expense, and that he himself went to Brooks's
the next day, and told him that he owned the horses, by virtue of a
bill of sale, and would pay for the keeping of them. This was ob-
jected to as being the plaintiff's own declarations; but we are of opin-
ion, that it was rightly admitted, not as proof of the facts alleged, but
as part of the res gestae. 13 It showed that he was incurring expense,
and charging himself with a debt, and that as owner and principal, in
which character a mere parol promise was binding, not as a surety or
guarantor for his son, which would have required a promise in writing.
It tended to show that the possession and acts of the son, were those
of an agent. That part of the declarations, in which he said that he
owned the horses under a bill of sale, was made immediately after the
sale, before any attachment or other adverse claim intervened, to a
person having the custody of the horses, and who might be called up-
on for information, and was we think competent, as proof of notoriety,
and to repel the suggestion of secrecy, arising from the fact relied up-
on, that notwithstanding the supposed sale, the property remained in
the custody of the vendor. In all in these respects, those declarations
were acts done, and were competent evidence to repel the charge of
fraud. * * *
Judgment on the verdict.
is Bradley, J., in Bank v. Kennedy, 17 Wall. 19, 21 L. Ed. 554 (1S72):
" * * * Like the loan, the purchase of the stock was a fact accomplished
by conversations and acts. In proving this fact these conversations and acts
were competent evidence. Conversations, in such cases, are not adduced so
much to prove ulterior facts stated therein as to prove the conversations
themsi Lves as facts constituting part of the transaction. Hence they are not
hearsay, hut original evidence."
The above quotation illustrates one of the many meanings or uses of the
unfortunate phrase, "res gestae." It is frequently applied to hearsay state-
ments receivable under some exception to the hearsay rule. — Ed.
SCC. 1) THE GENERAL RULE 435
WRIGHT v. DOE dem. TATHAM.
(Court of Exchequer Chamber, 1837. 7 Adol. & E. 313.)
Error from the Court of King's Bench.
Ejectment for the manors of Hornby and Tatham, (containing re-
spectively certain lands, which were described), for the rectory, &c, of
Hornby, and for other lands and premises, all in the county of Lancas-
ter. The lessor of the plaintiff below claimed as heir at law, the de-
fendant below as devisee, of John Marsden. The material questions
were, whether the will had in fact been executed, and whether, assum-
ing the execution to be proved, John Marsden was, at the time, com-
petent, in point of understanding, to make the will.
[The objections taken on behalf of the defendant relate to the ad-
missibility in evidence of three letters 14 addressed to the testator by
persons now deceased, well acquainted with him during their lives.]
Parke, B. 15 * * * First, then, were all or any of these letters
admissible on the issue in the cause as acts done by the writers, assum-
ing, for the sake of argument, that there was no proof of any act done
by the testator upon or relating to these letters or any of them, — that is,
would such letters or any of them be evidence of the testator's compe-
tence at the time of writing them, if sent to the testator's house and
not opened or read by him?
Indeed this question is just the same as if the letters had been inter-
cepted before their arrival at his house ; for, in so far as the writing
and sending the letters by their respective writers were acts done by
them towards the testator, those acts would in the two supposed cases
be actually complete. It is argued that the letters would be admissible
because they are evidence of the treatment of the testator as a compe-
tent person by individuals acquainted with his habits and personal char-
acter, not using the word treatment in a sense involving any conduct
of the testator himself ; that they are more than mere statements to a
third person indicating an opinion of his competence by those persons ;
they are acts done towards the testator by them, which would not have
been done if he had been incompetent, and from which, therefore, a le-
gitimate inference may, it is argued, be derived that he was so.
Each of the three letters, no doubt, indicates that in the opinion of
the writer the testator was a rational person. He is spoken of in re-
spectful terms in all. Mr. Ellershaw describes him as possessing hospi-
tality and benevolent politeness; and Mr. Marton addresses him as
competent to do business to the limited extent to which his letter calls
upon him to act ; and there is no question but that, if any one of those
writers had been living, his evidence, founded on personal observation,
that the testator possessed the qualities which justified the opinion ex-
pressed or implied in his letters, would be admissible on this issue. But
i* These letters were excluded at the trial.
16 1'art of opinion omitted.
436 HEARSAY (Ch. 3
the point to be determined is, whether these letters are admissible as
proof that he did possess these qualities?
I am of opinion that, according to the established principles of the
law of evidence, the letters are all inadmissible for such a purpose.
One great principle in this law is, that all facts which are relevant to
the issue may be proved; another is, that all such facts as have not
been admitted by the party against whom they are offered, or some
one under whom he claims, ought to be proved under the sanction of
an oath, (or its equivalent introduced by statute, a solemn affirmation,)
either on the trial of the issue or some other issue involving the same
question between the same parties or those to whom they are privy. To
this rule certain exceptions have been recognized ; some from very
early times, on the ground of necessity or convenience ; such as the
proof of the quality and intention of acts by declarations accompany-
ing them; of pedigrees, and of public rights by the statement of de-
ceased persons presumably well acquainted with the subject, as inhabit-
ants of the district in the one case, or relations within certain limits
in the other. Such also is the proof of possession by entries of de-
ceased stewards or receivers charging themselves, or of facts of a
public nature by public documents ; within none of which exceptions is
it contended that the present case can be classed.
That the three letters were each of them written by the persons
whose names they bear, and sent, at some time before they were found,
to the testator's house, no doubt are facts, and those facts are proved
on oath ; and the letters are without doubt admissible on an issue in
which the fact of sending such letters by those persons, and within that
limit of time, is relevant to the matter in dispute ; as, for instance, on
a feigned issue to try the question whether such letters were sent to the
testator's house, or on any issue in which it is the material question
whether such letters or any of them had been sent. Verbal declara-
tions of the same parties are also facts, and in like manner admissible
under the same circumstances ; and so would letters or declarations to
third persons upon the like supposition.
But the question is, whether the contents of these letters are evidence
of the fact to be proved upon this issue, — that is, the actual existence
of the qualities which the testator is, in those letters, by implication,
stated to possess: and those letters may be considered in this respect
to be on the same footing as if they had contained a direct and positive
statement that he was competent. For this purpose they are mere hear-
say evidence, statements of the writers, not on oath, 18 of the truth of
i« Coltman, J., in same case: "Now, admitting that this is a question of
..pinion and Judgment, we may ask, how is matter of opinion required by the
law of England to be proved? The general rule is, that it is to be proved by the
imlnation of witnesses upon oath. The administering of an oath furnishes
Borne guarantee for the sincerity of the opinion; and the power of cross-
mination gives an opportunity of testing the foundation and the value of
it. Such being the general rule, it is necessary for the parly who brings
forward evidence not on oath to show some recognized exception to the gen-
eral rule, within which it falls."
SeC. 1) THE GENERAL RULE 437
the matter in question, with this addition, that they have acted upon the
statements on the faith of their being true, by their sending the letters
to the testator. That the so acting cannot give a sufficient sanction for
the truth of the statement, is perfectly plain ; for it is clear that, if the
same statements had been made by parol or in writing to a third per-
son, that would have been insufficient; and this is conceded by the
learned counsel for the plaintiff in error. Yet in both cases there has
been an acting on the belief of the truth, by making the statement, or
writing and sending a letter to a third person ; and what difference can
it possibly make that this is an acting of the same nature by writing
and sending the letter to the testator ? It is admitted, and most proper-
ly, that you have no right to use in evidence the fact of writing and
sending a letter to a third person containing a statement of competence,
on the ground that it affords an inference that such an act would not
have been done unless the statement was true, or believed to be true,
although such an inference no doubt would be raised in the conduct
of the ordinary affairs of life, if the statement were made by a man
of veracity. But it cannot be raised in a judicial inquiry; and, if such
an argument were admissible, it would lead to the indiscriminate ad-
mission of hearsay evidence of all manner of facts.
Further, it is clear that an acting to a much greater extent and de-
gree upon such statements to a third person would not make the
statements admissible. For example, if a wager to a large amount
had been made as to the matter in issue by two third persons, the
payment of that wager, however large the sum, would not be admissi-
ble to prove the truth of the matter in issue. You would not have had
any right to present it to the jury as raising an inference of the truth
of the fact, on the ground that otherwise the debt would not have
been paid. It is, after all, nothing but the mere statement of that fact,
with strong evidence of the belief of it by the party making it. Could
it make any difference that the wager was between the third person
and one of the parties to the suit? Certainly not. The payment by
other underwriters on the same policy to the plaintiff could not be giv-
en in evidence to prove that the subject insured had been lost. Yet
there is an act done, a payment strongly attesting the truth of the state-
ment, which it implies, that there had been a loss. To illustrate this
point still further, let us suppose a third person had betted a wager
with Mr. Marsden that he could not solve some mathematical problem,
the solution of which required a high degree of capacity ; would pay-
ment of that wager to Mr. Marsden's banker be admissible evidence
that he possessed that capacity? The answer is certain; it would not.
It would be evidence' of the fact of competence given by a third party
not upon oath.
Let us suppose the parties who wrote these letters to have stated the
matter therein contained, that is, their knowledge of his personal qual-
ities and capacity for business, on oath before a magistrate, or in some
judicial proceeding to which the plaintiff and defendant were not par-
438 HEARSAY % (Ch. 3
ties. No one could contend that such statement would be admissible
on this issue ; and yet there would have been an act done on the faith
of the statement being true, and a very solemn one, which would raise
in the ordinary conduct of affairs a strong belief in the truth of the
statement, if the writers were faith- worthy. The acting in this case is
of much less importance, and certainly is not equal to the sanction of
an extra judicial oath.
Many other instances of a similar nature, by way of illustration,
were suggested by the learned counsel for the defendant in error,
which, on the most cursory consideration, any one would at once de-
clare to be inadmissible in evidence. Others were supposed on the
part of the plaintiff in error, which, at first sight, have the appearance
of being mere facts, and therefore admissible, though on further con-
sideration they are open to precisely the same objection. Of the first
description are the supposed cases of a letter by a third person to any
one demanding a debt, which may be said to be a treatment of him as
a debtor, being offered as proof that the debt was really due ; a note
congratulating him on his high state of bodily vigour, being proposed
as evidence of his being in good health ; both of which are manifestly
at first sight objectionable. To the latter class belong the supposed
conduct of the family or relations of a testator, taking the same pre-
cautions in his absence as if he were a lunatic; his election, in his ab-'
sence, 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 ex-
amining every part of the 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 state-
ments, not on oath, but implied in or vouched by the actual conduct of
persons by whose acts the litigant parties are not to be bound.
The conclusion at which I have arrived, is, that proof of a particu-
lar fact, which is not of itself a matter in issue, but which is relevant
only as implying a statement or opinion of a third person on the mat-
ter in issue, is inadmissible in all cases where such a statement or opin-
ion, not on oath, would be of itself inadmissible ; and, therefore, in
this case the letters which are offered only to prove the competence of
the testator, that Is, the truth of the implied statements therein con-
tained, were properly rejected, as the mere statement or opinion of
the writer would certainly have been inadmissible. It is true that evi-
dence of this description has been received in the Ecclesiastical Courts.
But their rules of evidence are not the same in -all respects as ours.
Some greater laxity may be permitted in a Court which adjudicates
both on the law and on the fact, and may be more safely trusted with
the a ration of such evidence than a jury; and I would observe,
also, that in no instance lias the propriety of the reception of it even
in the spiritual Courts been confirmed by the Court of Delegates. I
Sec. 1) THE GENERAL RULE 439
do not think, therefore, that we are bound by the authority of the cases
referred to in the Ecclesiastical Courts.
The next question is, whether there is any evidence of an act done
with reference to these three letters, or any of them, to render their con-
tents admissible by way of explaining that act. I am clearly of opinion
that none of them were admissible on this ground. * * *
Affirmed.
PARRIS v. JENKINS.
(Court of Appeals of South Carolina, 1845. 2 Rich. 106.)
This was an action of trover for a negro woman, Emily, and her
three children. The question was as to the title.
The negroes originally belonged to the plaintiff. In 1837 the de-
fendant married the plaintiff's daughter, and in 1838 Emily and her
children went, in some way unexplained, into his possession. The
plaintiff and defendant lived fourteen miles apart. In March, 1841,
Emily, with her children, was brought by a servant of the plaintiff
in a wagon from the defendant's to the plaintiff's. They remained
at the plaintiff's about two months, and then returned to the defend-
ant's. A witness for the defendant testified that, in the spring of 1841,
when the wagon of the plaintiff was brought to the defendant's for
Emily, the driver, a negro of the plaintiff, told the defendant that his
master had sent for Emily to help a little while about his crop, as he
was backward. This statement of the negro was objected to, but his
Honor held that it was admissible, as a part of the res gestae, explan-
atory of the defendant's act in sending Emily when she was sent for.
A good deal of other testimony was introduced on both sides, which
left it very doubtful whether the negroes went into the defendant's
possession as a gift, or as a loan. The case was submitted to the jury,
who found for the defendant.
The plaintiff appealed, on the ground, inter alia, that the declarations
of the negro who went for Emily were incompetent as evidence of the
message actually sent by the plaintiff.
Curia, per Wardlaw, J. Evidence of the message delivered by the
negro driver was received, not to shew that such message was sent,
but to explain the defendant's act in sending the woman, and rebut the
presumption unfavorable to his rights that might have arisen from
that act unexplained. Parris may have not put those words into the
negro's mouth, but the negro used them ; and were they not calculated
to produce an effect upon Jenkins? It is just as if Jenkins, adopting
the words of the negro, had said, when he sent the woman — "I send
her to help a little while, because my father-in-law is backward ;" and
so these words are part of the res gestae — an explanation by contem-
poraneous acts or declarations of the motives or objects of the principal
act, which would otherwise be of ambiguous or contrary import. The
440 HEARSAY (Ch. 3
words of a negro are at least as significant as the cry of a brute ani-
mal, or any sound proceeding from inanimate substances ; and if any
sound whatever, cotemporaneous with an act, or nearly connected with
it, might serve to give meaning to the act, it would be admissible, not
pnly to shew that there was such sound, but, if important, as nearly
as possible to describe it. We all daily begin and quit and change oc-
cupation, command and countermand, resolve and act, according to in-
formation received from negroes ; it would be impossible for us to ex-
plain our conduct without reference to the fact that such information
was given; and it would be often unjust, if an act should be proved
against us, and we should not be permitted to shew, by the same or
some other witness, what was said which would explain the act. The
jury were distinctly told that the words of the negro were not to be
taken as evidence of the truth of what he said, but only as a circum-
stance to be considered in weighing the effect to be given to the act
immediately following them. If the jury have given to the evidence an
influence it should not have had, that is but an ordinary misfortune
necessarily incident to jury trials. We cannot know the process by
which the jury have attained their conclusion, but must suppose that,
being properly instructed, they have done their duty. Motion dis-
missed.
O'Neall, Evans, Butler and Frost, JJ., concurred. 17
17 See, also, People v. Wood, 126 N. Y. 249, 27 N. E. 362 (1891), to the ef-
fect that it was competent for the defendant to prove that his wife told him
that an outrage had been perpetrated upon her, upon the theory of a shock
producing mental derangement.
In Hurst v. State, 101 Miss. 402, 58 South. 206 (1912), it was held that a
defendant, charged with carrying concealed weapons, might prove that it had
been reported to him that a third person had threatened his life, though the
party communicating the information had no personal knowledge that the
threat had actually been made. See also dissenting opinion in same case.
Quite a distinct problem may arise as to whether one may reasonably act
upon information which does not come to him at first hand. Lord Chancel-
lor Hatherly in Lister v. Perryman, (L. R.) 4 Eng. & Ir. App. Cases 521 (1870):
"I think he was justified in acting upon that information so given ; for un-
less that was so there would arise this inconvenience, that you could not
trust to the information you derived from your own attorney, when, for
example, you employ him to go down into the country and inquire into a
matter; and unless your own attorney had brought to you the witnesses
whom he went down to see, in order to ascertain and examine into the state
of the case, you could hardly justify yourself as having acted upon reason-
able and probable cause. In this particular case the information was given
by the coachman, who appears to have had charge of the gun to a certain
extent, for it was kept in the part of the premises that he had to deal with ;
it was given after inquiry by him into the subject matter, and after a delib-
erate Interview in order to justify him in judging how far Robinson was a
trustworthy person. I think, after that, if we were to say that the master
was not justified in acting upon such information because he might have gone
farther, it would be very difficult to draw the line so that it would not apply
to a case where a person was endeavoring to act simply upon smh Informa-
tion as others, whether his attorney or a friend, could collect for him, prob-
ably better than he was able to collect it himself."
Sec. 1) THE GENERAL RULE 441
STATE v. WENTWORTH et al.
(Supreme Judicial Court of New Hampshire, 1858. 37 N. H. 196.)
Indictment for placing obstructions upon the track of a rail-
road. * * *
The State introduced evidence of the declarations of (the defend-
ant) Wentworth, as to where he was and how he was employed on
said evening, and then introduced evidence tending to show the falsity
of said declarations; among which was the statement of Wentworth,
that he went to Salmon Falls on that evening, in company with a man
named William Hasty, who, as he, Wentworth, stated, lived at Salmon
Falls, and that he did business with him there on that evening. • The
State then proved by William Drury, that he, Drury, went to Salmon
Falls after Wentworth had so stated, and made inquiries in various
places, and of many persons there, for a man of that name, and could
obtain no information of such person. To this the defendants object-
ed, but it was admitted. 18
Eastman, J. * * * The next question raised was as to the ad-
missibility of the testimony of the witness Drury.
There is no rule of evidence better established than that hearsay
is not competent testimony. But it does not follow that, because the
words in question are those of a third person, they are necessarily
hearsay. On the contrary, it happens, in many cases, that the very
fact in controversy is, whether such things were spoken, and not wheth-
er they are true. Thus, replies given to inquiries made at the residence
of an absent witness, or at the dwelling-house of a bankrupt, denying
that he was at home, are original evidence. So to establish the death
of a party, inquiries at the place of his last residence or among his
relatives, and the answers are competent. 2 Greenl. on Ev. § 278;
Emerson v. White, 29 N. H. (9 Fost.) 482. In these and the like cases
it is not necessary to call the persons to whom the inquiries were ad-
dressed, since their testimony could add nothing to the credibility of
the fact of the denial. Wherever the fact that such communications
were made is the point in controversy, the evidence is admissible. 1
Greenl. on Ev. §§ 100, 101.
Drury did not pretend to testify what the persons of whom he made
inquiries said to him, but simply stated the fact of his ineffectual effort
to obtain information. That was all that was attempted to be proved
by him ; and had the persons of whom he sought to obtain the infor-
mation been called as witnesses, they could, upon this point — the point
of his seeking information — only have testified that Drury made the
inquiries and failed to obtain information, which is all he has testi-
fied to. They might have gone further, and testified that they never
knew or heard of such a man as Hasty. The evidence in both in-
i8 Statement condensed and part of opinion omitted.
442 HEARSAY (Ch. 3
stances would be similar, and negative in its character, and entitled to
more or less weight according to the means of observation and knowl-
edge that the witnesses might have. In both instances it would be the
evidence of a fact, the result of more or less of knowledge, but not the
rehearsal of what others had said. And upon this view, which was the
one taken by the court at the trial, we think the evidence was admis-
sible. * * *
Judgment on the verdict. 18
HAYES v. PITTS-KIMBALL CO.
(Supreme Judicial Court of Massachusetts, 1903. 183 Mass. 262, 67 N. E. 249.)
Knowlton, C. J. 20 This is an action to recover for an injury to
the plaintiff's intestate, a boy five years of age, which caused his death
a few hours afterwards. The declaration is in two counts — <)ne, to re-
cover the damages of the deceased from conscious suffering before
his death ; and the other, to recover, under St. 1898, p. 724, c. 565
(Rev. Laws, c. 171, § 2), for his death.
The first exception relates to the admission of evidence. The plain-
tiff was allowed to introduce the statements of the deceased in conver-
sation at different times after the accident, for the purpose of showing
that he was conscious. We have no doubt that this testimony was
competent. His remarks were verbal acts which tended to show his
condition. The evidence was limited by the judge strictly to this pur-
pose, and it was not of a kind that bore upon other issues in the case.
The principle on which its admission rests is well established. Hatch
v. Fuller, 131 Mass. 574; Com. v. Jardine, 143 Mass. 567, 10 N. E.
250; Lane v. Moore, 151 Mass. 87, 23 N. E. 828, 21 Am. St. Rep.
430; Shailer v. Bumstead, 99 Mass. 112; Earle v. Earle, 11 Allen,
I * * *
Exceptions overruled.
io See. also, Atty. Gen. v. Good, McCleland & Younge 286 (1S25).
20 Statement and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 443
SECTION 2.— RECOGNIZED EXCEPTIONS 21
I. Reported Testimony 22
FRAUNCES v. SHOTBOLT.
(Court of King's Bench, 1631. 2 Rolle, 211.)
Fraunces brought an action of debt for tithes, upon which they were
at issue, and the case was this :
The tithes were let to one Fraunces for life, with remainder for
life to the plaintiff ; upon a trial for tithes by the first lessee for life,
divers witnesses were examined, who had since died.
And now upon this trial, Sir Lawrence Hyde prayed that those wit-
nesses, who were examined on the trial of the first tenant for life,
might be witnesses for him in remainder.
It was agreed by all the judges, except Dodridge, that the witnesses
who had been examined by the tenant for life were not witnesses for
him in remainder, because he should have been made a party to it,
otherwise his interest should not be prejudiced, not being a party.
And Chamberlain, J., said that Chancellor Egerton held this as a con-
stant rule, Dodridge, J., agreeing, that the tenant for life and the re-
mainderman have all one estate, and therefore it seemed that these
witnesses who were examined for the first lessee for life, as it was the
same title, might be witnesses for the remainderman.
MAYOR OF DONCASTER v. DAY.
(Court of Common Pleas, 1810. 3 Taunt. 262.)
This was an action of trespass, brought by the mayor and corporation
of Doncaster, to try whether the public had a right to pass with goods
from ships lying in their river, over a bank at a place called Docking-
Hill, which the plaintiffs claimed to be their soil and freehold, in ordef
21 For certain statutory exceptions to the hearsay rule in proceedings un-
der Workmen's Compensation Acts, see Carroll v. Knickerbocker Ice Co., 218
N. Y. 435, 113 N. E. 507, Ann. Cas. 1918B, 540 (1916).
22 Whether the admission of former testimony or of depositions is to be re-
garded as a true exception to the hearsay rule seems to depend on whether
the normal requirement that testimony be given viva voce in open court is
an essential part of the rule, a matter impossible to settle. At any rate,
there is no controversy about the fact that in common-law courts the personal
presence of the wituess was required, but if that could not be had because of
death or insanity, his former testimony might be received under certain con-
ditions.
444 HEARSAY (Ch. 3
to cart the goods upon a highway lying beyond the bank, and parallel
to the river: the same plaintiffs had commenced other actions for the
like cause, against other defendants. They had proceeded to trial in
this cause; and the verdict being adverse to the corporation, and re-
pugnant to the weight of the evidence, upon an application for a new
trial, the court had directed that this cause should abide the event of
the verdict in another of the causes, which was in progress for trial.
Clayton, Serjt, on this day prayed, on behalf of the plaintiffs, that
if any of the witnesses, many of whom were very aged, should die, or
become unable to attend in the mean time, their evidences given upon
the former occasion might be read at the next trial.
Mansfield, C. J. You do not want a rule of court for that pur-
pose : what a witness, since dead, has sworn upon a trial between the
same parties, may, without any order of the court, be given in evidence,
either from the judge's notes, or from notes that have been taken by
any other person, who will swear to their accuracy; or the former
evidence may be proved by any person who will swear from his mem-
ory to its having been given.
Heath, J., concurred in refusing the application. 28
23 Prentice. C. J., in Atwood v. Atwood, 86 Conn. 579, 86 Atl. 29, Ann. Cas.
1914B, 281 (1913): "The plaintiffs assign as error the admission upon the of-
fer of the defendant of a deposition used upon the former trial of the de-
fendant Mary J. Atwood, who, it appeared, was living and within the juris-
diction of the court, but mentally incompetent. There is no distinction be-
tween a deposition, and former testimony given in court, as to the principles
to be applied. 2 Wigmore on Evidence, § 1408. In each case the controlling
test is: Can the witness' knowledge be utilized by other means? If not, the
use of the former testimony, other conditions in respect to it being met, is
justified in the interest of justice by the necessity of the situation. It is the
best evidence of which the case admits. The death or absence from the ju-
risdiction of the witness has frequently furnished the occasion for the intro-
duction of his former testimony. Situations where the knowledge of the
witness has become unavailable by reason of his mental incompetency have
been less frequent; but the authorities are in general accord in taking tbe
only logical and just position that they come under the same rule. - Wig-
more on Evidence, §§ 1402, 1408; 1 Greenleaf on Evidence, § 163; Regina v.
Marshall, Carr. & M. 147, 148 [1841]; Whitaker v. Marsh, 62 N. U. 477, -178
[1883]; Howard v. Patrick, 38 Mich. 795, 799 [1878]; Rothrork v. Gallaher,
Ul I'a. M'N 112 [1879]. 'There is no real or practical difference between the
death of the mind and the death of the body.' Marler v. State, 67 Ala. 55,
65 i 12 Am. Rep. 95 (1880)]."
The Btatemenl of Justice Prentice that there is no difference In principle
I, (i it inn and testimony on a former trial musl l • understood
wiiii this qualification: That modern statutes frequently authorize the read-
ing ol it inn under conditions which would not have admitted former
testimony at common law.
The courts have refused to extend the analogy of death or insanity to the
of a witness who has simply forgotten the facts to which be formerly
tided. Robinson v. Oilman. 4?, N. II. 295 (1861); Drayton v. Wells, 1 Nott
-i.e. (S. C.) 409, 9 Am. Dec 718 (1819).
There is some difference or opinion as to other situations rendering the
wi' oavailable, such as the Bickness or absence of the witness from the
jurisdiction, or the Inability of the party to And the witness.
Marston, J., In Howard v. Patrick, 38 Mich. 795 (1878):
"A Large number of questions have hem raised in this case. We do not.
SeC. 2) RECOGNIZED EXCEPTIONS 445
JUNEAU BANK v. McSPEDON.
(Supreme Court of Wisconsin, 1S62. 15 Wis. 629.)
By the Court, Paine, J. 34 We think the defendant should have
been allowed to use the deposition of Mrs. Bartlett on the trial. There
is nothing on the face of the papers showing that it was taken on the
part of the plaintiff. But even if there was, our conclusion would be
the same. It is true the plaintiff had not offered to use it ; and there
are cases which have held that a party could not use a deposition taken
on the part of the other, unless it was first used by the party taking it.
But the opposite rule seems to us to be sustained by the weight of
authority and argument. The only objection urged against it is, that
if either party is allowed first to use a deposition taken by the other,
the party taking it is deprived of the right of cross-examination. But
the general presumption is, that the testimony of a witness will be in
favor of the party calling him, and therefore the right of cross-
examination ordinarily belongs to the opposite party. But if a witness
should unexpectedly state facts against the party calling him, it would
undoubtedly be within the discretion of the court to allow him, by
questions in the nature of a cross-examination, to call out whatever he
might be able in explanation or avoidance of such facts, just as a
party is allowed to put leading questions to his own witness, where the
latter appears evidently hostile to the party calling him. At all events,
it would seem much more convenient that this practice should prevail
in respect to depositions, than that a party who has called out from a
witness, in a deposition taken by the other, all the facts material for
him to prove, should be obliged to retake the deposition on his own
behalf, or be prohibited from using the evidence in case his adversary
was able to dispense with it. And this rule being established, the ob-
jection for want of cross-examination would fail. For either party
would then be allowed to examine the witness fully, both to prove
however, consider it necessary to refer to all, but only such of them as are
likely to become important upon a new trial of the case.
"I. The evidence of James Evans should have been admitted. The authori-
ties are all agreed that where a witness has been sworn upon a former trial
between the same parties and upon the same issue, and since the trial, has
deceased, his testimony as given upon the former trial is admissible. And
while there is a conflict as to whether this rule may be extended to cases
where the witness is sick or insane, or beyond the jurisdiction of the court,
yet we are of opinion that upon, principle the evidence should be admit ted,
and that there is no good ground for any such distinction. In a case like
the present the witness is, to all intents and purposes, so far as these par-
ties are concerned, legally dead. They can no more avail themselves of his
personal presence in court than though he were in fact dead. The reason of
the rule admitting his testimony in the one case is equally strong in the
other, and we can see no good reason for recognizing any such distinction.'"
In this case the witness was absent, but the report does not state whether
it was due to sickness or absence from the jurisdiction.
24 Statement omitted.
446 HEARSAY (Cll. 3
facts in his own favor, and in explanation of facts stated in favor of
the opposite party. And the statute evidently contemplates this.
It provides that the party producing the deponent may first "examine
him on all points which he shall deem material, and then the ad-
verse party may examine the deponent in like manner, after which
either party may propose such further interrogatories as the case may
require." Chapter 137, § 15, R. S. This was clearly designed to en-
able the whole testimony of a witness to be secured for the benefit
of both parties in one deposition, and must be construed as giving both
the corresponding rights of examination and cross-examination at the
taking. Though perhaps it ought not to be held to allow the party pro-
ducing the witness to cross-examine with a direct view of impeaching
his credibility. There are obvious considerations against this which
would not apply to cross-examination for any other purpose.
The whole deposition should therefore have been admitted. For it
is impracticable and inconvenient to divide a deposition, so as to ad-
mit that which was given only in answer to one party. The answers
on cross-examination are frequently intelligible only in connection with
the examination in chief. And it seems useless to require either party
to have repeated in answer to his own questions, what the witness has
clearly stated in answer to the other, as a condition precedent to his
right to use it.
As this makes the reversal of the judgment necessary, we shall not
express any opinion upon the other questions argued, as a retrial may
present the case in a different aspect.
The judgment is reversed, with costs, and a new trial ordered. 25
PITTSBURGH, C. & ST. L. RY. CO. v. McGRATH.
(Supreme Court of Illinois, 1SS5. 115 111. 172, 3 N. E. 439.)
Sheldon, J. 28 This was an action against the railway company to
recover damages for the killing of plaintiff's intestate through the
alleged negligence of the defendant, wherein the plaintiff recovered;
the judgment was affirmed by the appellate court for the First district,
and defendant took this appeal. Error is assigned in the excluding of
the deposition of a witness taken before the coroner's inquest upon the
body of the deceased, the witness being dead. English cases are cited
where such depositions have been held admissible in evidence. Starkie,
in remarking upon this subject, observes: "It has been said that depo-
sitions taken by a coroner are evidence although the prisoner was not
ause the coroner is a public officer appointed to inquire of
such matters, and therefore it is to be presumed that such depositions
so r.ut see Dana v. Underwood, 19 Pick. (Miissj 99 (1S37).
20 Part at opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 447
were fairly and impartially taken; yet it seems the admissibility of
these depositions stands altogether upon the statutes," etc. 2 Starkie,
Ev. 490, marg.
As quoted from 2 Phil. Ev. 224, marg., Cow. & H. notes (5th Amer.
Ed.) : "The fourth section of the 7 Geo. IV, c. 64, enacts that every
coroner, upon any inquisition before him taken, whereby any person
shall be indicted for manslaughter or murder, * * * and shall
certify and subscribe the same evidence, and all such recognizances,
and also the inquisition before him taken, and deliver the same to the
proper officer of the court in which the trial is to be, before or at the
opening of the court. * * * It has been held in the construction
of the statute of Philip and Mary, under which depositions before
coroners used to be taken, (and the same decisions seem to apply equal-
ly to cases under the new statute above cited), that in case of any of
the witnesses * * * are dead, * * * their depositions may be
read on the trial of the prisoner."
The provision of our statute simply is, "which testimony (before cor-
oner) shall be filed with said coroner in his office and carefully pre-
served." There being no implication, as in the English statute, that
the deposition is for use in court, there is such difference between the
statutes as to afford room for question whether the English decisions
fully apply. The cases in which such depositions have been received
are mostly criminal cases, but they have been received in a civil case.
Sills v. Brown, 9 Car. & P. 601. The plaintiff was not a party to the
proceeding before the coroner, was not present, had no opportunity for
the cross-examination of the witness, and any question of negligence,
the vital question in this case, was not the very matter of inquiry before
the coroner. The legitimate object of the inquest would have been
fulfilled in finding simply that the death of deceased was caused by
his being run over by a railroad train, without inquiry whether it was
through any one's, or whose, negligence. We are of opinion the depo-
sition was rightly excluded. In the case of Cook v. New York Cent.
R. Co., 5 Lans. (N. Y.) 401, it was so ruled, and see State v. Turner,
Wright (Ohio). 21, and note to above citation from Phillips. * * *
Affirmed. 27
27 in Clement v. Blunt, 2 Rolle, 460 (1625), in a trial at bar of an appeal
of felonv, a deposition taken at the coroner's inquest was rejected ; the case
is badly reported and the reasons are not clear ; one or more of the judges
put it on the ground that this action was between private parties, but sug-
gested that it might be allowed in the case of the king.
Samson v. Yardley, 2 Keble, 223 (166S): "In an appeal of murther, * * *
Wild, the King's Sergeant pro defendant offered evidence of what a witness,
sworn on the trial in the indictment, then said, being now dead ; also what
the now appellant then contest, which Keeling and Moreton denied, because
at common law the appeal preceded the indictment; therefore since the stat-
ute that ordains the indictment first, the appeal remains as res Integra,
wherein on neither side the former proceedings cannot avail either party;
but Twisden and Windham conceived it should be admitted, but all admitted
proof of what the appellant had said at any time before generally, but not
what she swore at the trial; (but what the witnesses dead had said general-
448 HEARSAY (Ch. 3
METROPOLITAN ST. RY. CO. v. GUMBY.
(Circuit Court of Appeals of the United States, Second Circuit, 190O. 99
Fed. 192, 39 C. C. A. 455.)
This is a writ of error to review a judgment of the circuit court,
Southern district of New York, in favor of Anne Gumby, defendant
in error, who was plaintiff below. The judgment was based upon a
verdict against defendant below awarding damages for loss of serv-
ices of plaintiff's son George Gumby, a child 5 years of age at the
time of the accident, who was injured by one of defendant's cars
May 22, 1897. The facts sufficiently appear in the opinion.
Lacombe, Circuit Judge. 28 All assignments of error, save one, were
abandoned by plaintiff in error upon the argument, and that one only
need be discussed. One of the eyewitnesses of the accident was
Macon Lyons. He was dead at the time of the trial of the cause at
bar, but had testified with great fullness to what he saw of the acci-
dent, upon the trial of an action brought by Elizabeth Clayton,
grandmother of George Gumby, as guardian ad litem, against the
same defendant, to recover for pain and suffering, and for any per-
manent loss of ability to work, caused by the accident. After intro-
ducing some testimony which is not especially persuasive, plain-
tiff's counsel offered to read the testimony of Lyons taken in the son's
action. It would appear from the record that the attention of
the trial judge was not at the time called to the circumstance that the
guardian ad litem who prosecuted the former action was not the
infant's mother (the present plaintiff), but his grandmother. De-
fendant objected that he knew of no rule of law that made it com-
petent testimony. The objection was overruled, and the testimony
read, defendant reserving an exception. The objection is not for-
mulated in specific terms, to the effect that what was offered was
hearsay, and not within any of the exceptions which are recognized
to the rule that hearsay is incompetent. Nevertheless, since the ob-
jection urged here is of such sort that nothing could have been done by
the party offering the evidence to overcome such objection, we may
with entire propriety dispose of the question raised here.
The statutes of New York (section 830, Code Civ. Proc.) provide
that : "Where a party or a witness has died or become insane since
the trial of an action * * * the testimony of the deceased or in-
sane person * * * taken or read in evidence at tne former trial
* * * may be given or read in evidence at a new trial * * *
)y, being but hearsay of a stranger, and not of party interest they would
not admit, which might be true or Calse)."
In Bex v. Thatcher, T. Jones, 53 (1677), the deposition of a witness taken
i. the coroner wa.t read on the trial of an Indictmenl for murder, the court
laying - on the authority of the coroner. And so in Bromwich'a
p. 428.
Pari of opinion omitted.
SeC. 2) RECOGNIZED EXCEPTIONS 449
subject to any other legal objections to the competency of the witness,
or to any legal objection to testimony or any question put to him."
It is manifest that this does not touch the point at issue. It pro-
vides only for new trials of the same action in which the deceased
witness testified. We find no other section of the Code author-
izing the admission of such testimony, and the question raised here
will have to be disposed of under the principles of the common law.
The entire reliance of the plaintiff seems to be upon a paragraph
in the sixteenth edition of Greenleaf on Evidence, enlarged and an-
notated by Prof. Wigmore, published in 1899. The paragraph (which
is the annotator's) is section 163a, and reads as follows :
"As to the parties, all that is essential is that the present opponent
should have had a fair opportunity of cross-examination. Conse-
quently a change of parties which does not effect such a loss does
not prevent the use of the testimony, — as, for example, a change by
which one of the opponents is omitted, or by which a merely nominal
party is added. And the principle also admits the testimony where
the parties, though not the same, are so privy in interest — as where
one was an executor, or perhaps a grantor — that the same motive and
need for cross-examination existed."
A very large number of cases are cited by the annotator, all of
which have been examined by the court. If the propositions above
quoted are read with the qualifications which are indicated by the
illustrative examples given in the paragraph, they are sound, and
abundantly supported by authority. If they are to be read, how-
ever, as plaintiff reads them, namely, as asserting that evidence of
a deceased witness may be read in any subsequent suit when it ap-
pears that the same issue is involved, that the witness testified un-
der the sanction of an oath, that he was confronted with the person
against whom the testimony is offered, and that the latter had the op-
portunity of cross-examination, then it is not supported by the au-
thorities to which our attention has been called, or which we have
been able to discover. Stated thus baldly, the proposition imports that
when, for example, the derailment of a train because of a misplaced
switch has caused injury to a score of passengers, and a witness
has testified to the circumstances of the accident in an action brought
by A. to recover for his injuries, and has since died, the evidence
of such witness may be read by any other injured passenger upon
the subsequent trial of his action for damages. No case has been
found which lends the slightest support to any such proposition. In
all of them it is postulated that the parties must be substantially the
same, or, if they are not, that the newcomer must be a privy with the
former party in blood, in estate, or in law. * * *
Morgan v. Nicholl, L. R. 2 C. P. 117, was an action of ejectment.
Morgan offered the testimony of a deceased witness on the trial of
Hint.Ev.— 29
450 HEARSAY (Ch. 3
a former action in ejectment against Nicholl's father brought by
Morgan's son, claiming as his heir at law, under the supposition
that he was dead, to recover the same premises. It was held that
there was no privity of estate between Morgan and his son, and
that the evidence, not being admissible against Morgan, was not ad-
missible for him. * * *
This case is on all fours with the one at bar. Anne Gumby could
have successfully objected to the reading in evidence against her of the
testimony of the witness who testified in the suit of Clayton, guardian
ad litem of George Gumby against defendant, and therefore she can-
not read the same testimony in evidence against defendant.
The judgment of the circuit court is reversed, and a new trial or-
dered. 28
SHAW et al. v. NEW YORK ELEVATED R. CO. et al.
(Court of Appeals of New York, 1907. 1ST N. Y. 186, 79 N. E. 9S4.)
Hiscock, J. 30 * * * This action was commenced and once tried
before the Interborough Rapid Transit Company had become a lessee,
and therefore an appropriate party. Upon the second trial such com-
pany was by stipulation brought in as a defendant, and appeared by
the same attorney who had already appeared in the action for the
other defendants. One of plaintiffs' witnesses upon the first trial
(Flock) died pending the second trial, and when plaintiffs' counsel
attempted to read his evidence the same was objected to by the Inter-
borough Company as inadmissible under the Code; the objection,
however, being overruled. Section 830 of the Code, as amended by
chapter 595 of the Laws of 1893 (Laws 1893, p. 1375), provided that
'the testimony of any witness who has died or become insane after a
former trial or hearing of * * * an action, may be read upon a
subsequent trial or hearing, by any party to such action or proceeding,
subject to legal objections." There is no doubt that the term "party,''
in this connection, included a privy such as would be a lessee in respect
to his lessor. Jackson v. Crissey, 3 Wend. 251, 252; O'Donnell v.
Mclntvre, 118 N. Y. 156, 162, 23 N. E. 455; Bennett v. Couchman,
48 Barb. 73, 81. By chapter 352, p. 762, Laws 1899, said section 830
was again amended so as to provide that the testimony upon a former
29 in the omitted part of the opinion a large number of the cases are col-
lected and reviewed.
See, also, Hooper v. Southern By. Co., 112 Ga. 96, 37 S. K. L65 (1900),
eluding test! ay given in another action, where the plaintifl In the last ac-
tion bad appeared us the nexl friend of the plaintifl in the first action.
In Wisconsin the rule appears t.. have been extended by statute t<> In-
clude any case where there was fair cross-examination. Illinois stool Co. v.
Muza, 164 Wis. 247, 159 N. W. 908 (1916).
Pari of opinion of HiSCOCk, J., and dissenting opinion of Gray, J., arc
omitted.
SeC. 2) RECOGNIZED EXCEPTIONS 451
trial of such a deceased witness might be read upon a subsequent trial
of the same action "between the same parties who were parties to such
former trial or hearing, or their legal representatives."
It is urged that the employment of the words "legal representatives"
has modified the application of this provision as it formerly existed,
and that such words do not include a privy such as a lessee. It is un-
necessary to spend time in considering how well founded may be ap-
pellants' contention in this regard, for a complete answer to the ex-
ception here urged is found elsewhere than in the construction of this
section. Independent of statute the common law permitted the evi-
dence of a deceased witness to be read as between the original parties
or their privies. Jackson v. Bailey, 2 Johns. 17, 19 ; Bradley v. Mirick,
91 N. Y. 293, 295. And there is no such conflict between the Code
and this rule as works the abrogation of the latter in the absence of
express repeal. Am. & Eng. Ency. of Law, vol. 26, p. 662, and cases
there cited. Therefore the evidence was competent under the com-
mon law, even if not so under the statute. * * *
Affirmed. 31
REX v. SMITH.
(Court for Crown Cases Reserved, 1817. Russ. & R. 339.)
The prisoner was tried and convicted before Lord Chief Baron
Richards, at the summer assizes for the town of Newcastle-upon-
Tyne, in the year 1817, of the murder of Charles Stewart on the
night of 3d of September, 1816.
The only question which the learned Chief Baron thought it neces-
sary to submit for the consideration of the judges was, whether the dep-
osition after mentioned ought to have been admitted in evidence. If
it was properly admitted, it was conclusive as to the guilt of the pris-
oner.
The prisoner it appeared had been brought before two magistrates
on the 4th of September, 1816, upon a charge of an assault upon the
deceased, and also upon a charge of robbing a manufactory, which the
deceased had been employed to guard.
The clerk of the magistrates produced the deposition of the deceas-
ed taken before the magistrates at the time the above mentioned com-
plaints were preferred, and then reduced into writing by the witness
who produced it. It appeared the oath was administered to the de-
ceased before any part of his evidence was reduced into writing.
The prisoner was not present when the examination commenced, but
was brought into the room before it was finished, and before the three
last lines of the deposition were taken down. The prisoner was inform-
al And so in Stephens v. Hoffman, 263 111. 197, 104 N. E. 1090 (1914); Yale
v. Coinstock, 112 Mass. 267 (1873) ; Adams v. Raigner, 69 Mo. 303 (1879).
452 HEARSAY (Ch. 3
ed, that the magistrates were taking the examination of the deceased,
and he was desired to attend. The oath was again administered to the
deceased in the prisoner's presence, and the whole of what had been
written down from the mouth of the deceased was, in the presence and
hearing of the deceased, read over to the prisoner very distinctly and
slowly. After this was done the deceased was asked in the presence
and hearing of the prisoner, whether what had been written was true,
and what he meant to say; and the deceased answered that it was
perfectly correct. The magistrates then proceeded to examine the
deceased further, in the presence and hearing of the prisoner, when the
deceased stated what was contained in the three last lines of the depo-
sition. During the whole of the examination the deceased appeared
perfectly collected.
After this, the prisoner was asked whether he chose to put any
questions to the deceased ; he did not ask any question, but only said
"God forgive you, Charles." The deceased then signed the deposition
in the presence of the magistrates and the prisoner, and after he had
signed, the magistrates signed it in the presence of the deceased and
the prisoner.
Alderson, on behalf of the prisoner, objected to the admissibility of
this deposition in evidence :
First, because the prisoner did not hear the questions put, or the
answers given, except as to the last three lines ; and therefore he. con-
tended, the case was not brought within the statutes 1 & 2 P. & M. c.
13, and 2 & 3 P. & M. c. 10, which made depositions evidence in any
case.
Secondly, because under these statutes, the examination is confined
to the offence with which the defendant is charged at the time. Here
the defendant was charged with an assault and robbery; the deposi-
tion, if properly taken, might have been applied to an indictment for
the assault or robbery ; but could not apply to murder, the offence here
inquired into ; for no murder had taken place when the deposition was
taken.
The learned judge overruled these objections, and admitted the dep-
osition to be read in evidence; and the jury found the prisoner guilty,
but the learned judge reserved the case for the consideration of the
judges.
In Michaelmas term, 1817, eleven of the judges met, and considered
this case (Gibbs, C. J., being absent). Ten of the learned judges
thought the conviction right ; and that the deposition had been proper-
ly received in evidence. Abbott, J., thought the evidence ought not
to have been received. Dallas, J., Graham, B., Richards, C. B., and
Lord EUenbordugh, stated that they should have doubted the admis-
sibility of the evidence, but for the case of Rex v. Radbourne, 1 Leach,
C. C. 457.
SeC. 2) RECOGNIZED EXCEPTIONS 453
STATE v. McO'BLENIS.
(Supreme Court of Missouri, 1S57. 24 Mo. 402, 69 Am. Dec. 435.)
On appeal from a conviction of murder.
Leonard, J., 32 delivered the opinion of the court.
The main question that has been discussed before us in this case is
the competency of Nievergelder's deposition, which was regularly tak-
en before the committing magistrate upon the preliminary examination
in the presence of the accused, and read on the trial upon proof of the
deponent's death. Before we dispose of it, however, we will remark
that on a careful examination of the record and consideration of other
points presented, we have not found any ground for reversing the judg-
ment, in the impaneling of the jury, in the admission or exclusion of
evidence, in the instructions under which the cause was tried, or in
the verdict, either as to form or substance, and, dismissing with these
remarks the minor points, we proceed at once to the question that was
mainly relied upon in argument before us.
The proud answer of the Roman governor to the Jews, when they
demanded of him the condemnation of Paul, was : "It is not the man-
ner of the Romans to deliver any man to die before that he which is
accused have the accusers face to face, and have license to answer for
himself concerning the crime laid against him." * * * Our own
bill of rights secures to the accused, among other things, the right "to
be heard by himself and his counsel," "to demand the nature and cause
of accusation," "to have compulsory process to compel the attendance
of witnesses in his favor," "to meet the witnesses against him face to
face," and "to a speedy trial by an impartial jury of the vicinage," and
to an exemption from "being compelled to give evidence against him-
self," and the admission upon the present trial of Nievergelder's depo-
sition is supposed to have violated the clause which secures to the
accused "in all criminal prosecutions the right to meet witnesses against
him face to face." The great security of the accused, however, after
all, is in the fundamental principle of the common law, that legal evi-
dence consists in facts testified to by some person who has personal
knowledge of them ; thus excluding all suspicions, public rumors, sec-
ond-hand statements, and generally all mere hearsay testimony, wheth-
er oral or written, from the consideration of the jury — the usual test
of this hearsay evidence being that it does not derive its value solely
from the credit to be given to the witness who is before them, but part-
ly from the veracity of some other individual.
This great principle, however, like all others, has its exceptions and
limitations, which are as well settled as a rule itself, and among these
exceptions, in its application to the administration of criminal justice,
32 Statement and part of opinion omitted.
454 HEARSAY (Ch. 3
are dying declarations in reference to the same homicide, and the dep-
osition of a witness regularly taken in a judicial proceeding against
the accused in respect to the same transaction and in his presence, when
the subsequent death of the witness has rendered his production in
v court impossible; and the question now to be passed upon comes to
this ; whether the provision in our Constitution is to be construed so
as to abolish both or either of these exceptions, so that hereafter this
species of evidence, which has heretofore, it is believed, always been
received both in England and all over the United States, must be ex-
cluded. The Constitution, it is to be observed, has not undertaken to
define, by any direct provision, what constitutes competent evidence in
criminal cases, except in the single case of treason, but requires it to
come from witnesses standing in the presence of the accused, and
it may be in the tribunal where his guilt or innocence is to be finally
passed upon. If the clause be understood literally, it provides for the
production of the witness, but does not prescribe what he may com-
municate as evidence. It compels his presence in court, but leaves the
evidence he may give to be regulated by law. The dying statement
of the slain, and the deposition of the deceased witness, are both mere
hearsay in the legal sense of the term. The truth of the facts they
relate do not depend upon the veracity of the witness who heard the
oral statement in one case, or of the officer who heard the testimony
of the deponent and wrote it down and read it over to him in the other,
but mainly upon the credit due to statements made under such cir-
cumstances. Even in the civil law mode of procedure the witnesses, it
seems, are ultimately confronted with the accused, and, therefore, it
may be said literally even there that they "meet the accused face to
face."
But all such constructions would be quite too narrow, and altogether
unworthy both of the instrument and of this tribunal. The people
have incorporated into their frame of government a great living prin-
ciple of the common law under which they and their ancestors had
lived, and it is the duty of the court so to construe it as to make it ef-
fectual to answer the great purpose they had in view. And this prin-
ciple, we think, is no other than the principle of the common law in
reference to criminal evidence that it consists in facts within the per-
sonal knowledge of the witness, to be testified to in open court in the
presence of the accused. This principle, however, was nowhere writ-
ten down on parchment. It is not to be found in Magna Charta, or
in the English bill of rights, but it existed in the living memory of men,
and was always a part of the common law, although in bad times it
as trodden under foot by bad men in high places. It is not, however,
a stiff, unbending rule, extending to every case, without exception,
falling within its letter, but is limited and controlled by subordinate
rules, which render it safe and useful in the administration of public
justice, and are as well established as the great principle itself, which,
SeC. 2) RECOGNIZED EXCEPTIONS 45.")
with all its exceptions and limitations, was taken from the existing
law of the land and incorporated into the Constitution. The purpose of
the people was not, we think, to introduce any new principle into the
law of criminal procedure, but to secure those that already existed as
part of the law of the land from future change by elevating them into
constitutional law. It may as well be the boast of an Englishman
living under the common law, as of a citizen of this state living under
our Constitution, that in a criminal prosecution he has a right to meet
the witnesses against him face to face ; and yet it was never supposed
in England, at any time that this privilege was violated by the admis-
sion of a dying declaration, or of the deposition of a deceased witness,
under proper circumstances ; nor, indeed, by the reception of any other
hearsay evidence established and recognized by law as an exception
to the general rule. It is said by Lord Aukland, in reference to the
conduct of the British courts in the sixteenth and part of the seven-
teenth centuries — "Depositions of witnesses forthcoming, if called, but
not permitted to be confronted with the prisoner — written examina-
tions of accomplices living and amenable — confessions of convicts late-
ly hanged for the same offense — hearsay of these convicts repeated at
second-hand from others— all formed so many classes of competent
evidence, and were received as such in the most solemn trials by learn-
ed judges." Principles of Penal Law (2d Ed.) 197. But no complaint
of the character of the one now made was ever heard. This was not 1
an evil to be provided for by any law, much less by a constitutional
provision ; these exceptions to the general rule were never considered
violations of the rule itself; they grew out of the necessity of the
case, and are founded in practical wisdom. The facts thus communi-
cated go to the jury, not as entitled to the full faith of the facts sworn
to by a witness from his own personal knowledge, but yet as competent)
to be considered by the jury in forming their verdict. But whether
these exceptions be wise or unwise, is not submitted to our judgment.
They were well established at the time, and, we think, went into the
Constitution as part of the great principle of criminal evidence adopt-
ed by the clause now under consideration.
We refer, in conclusion, in confirmation of our views upon the sub-
ject, to the decisions of the other states; but as they are cited in the
brief s, we shall do so in a general manner, without calling attention
to the particular cases. The privilege now under consideration exists
in every state where the common law prevails, either as part of that
law, or by a constitutional provision similar to our own, and yet evi-
dence of this character, it appears, has never been excluded but in a
single case, decided in early times in Tennessee, and which has since
been expressly overruled. In some of the states it has been expressly
recognized as competent by direct decisions to that effect, and in all of
them the uniform current of judicial dicta, whenever the question has
been a subject of discussion, is in favor of its competency. We are
456 HEARSAY (Cll. 3
constrained, therefore, both on the score of reason and authority, to
pronounce in favor of the legality of the evidence. The judgment
must, therefore, be affirmed; Judge Scott concurring.
Affirmed. 33
REYNOLDS v. UNITED STATES.
(Supreme Court of the United States, 1878. 9S U. S. 145, 25 L. Ed. 244.)
On writ of error to review a conviction on a charge of bigamy un-
der the United States statute. 34
Mr. Chief Justice Waite. * * * 4. As to the admission of evi-
dence to prove what was sworn to by Amelia Jane Schofield on a
former trial of the accused for the same offence but under a different
indictment.
The Constitution gives the accused the right to a trial at which
he should be confronted with the witnesses against him ; but if a wit-
ness is absent by his own wrongful procurement, he cannot complain
if competent evidence is admitted to supply the place of that which
he has kept away. The Constitution does not guarantee an accused
person against the legitimate consequences of his own wrongful acts.
It grants him the privilege of being confronted with the witnesses
against him ; but if he voluntarily keeps the witnesses away, he can-
not insist on his privilege. If, therefore, when absent by his procure-
ment, their evidence is supplied in some lawful way, he is in no condi-
tion to assert that his constitutional rights have been violated.
88 And so in Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337, 39 L.
Ed. 409 (1895).
Winslow, J., in Spencer v. State, 132 Wis. 509, 112 N. W. 462, 122 Am. St.
Rep. 989, 13 Ann. Cas. 969 (1907): "* * * In the case of illness or in-
sanity or other physical or mental disability there has been considerable con-
trariety of opinion. Our examination of the authorities brings us to the
conclusion that the English rule in criminal cases was that mere temporary
illness or disability of the witness, where there was prospect of recovery, was
not sufficient to justify the reception of the former testimony, but that it
must appear that the witness was in such a state, either mentally or physi-
cally, or both, that in all reasonable probability he would never be able to
attend the trial. When this fact satisfactorily appeared it was considered
thai tin- situation was practically the same as if the witness were dead, l
Crlm. Ev. (8th Am. Ed.) 104, 105; Itex. v. Hops (1833) (5 Chit. & V.
L76; Reg. v. Wllshaw (1841) Carr. & M. 115; Reg. v. Marshall (18-11) Carr.
§ M. liT; Marler v. state, 07 Ala. 55 [42 Am. Rep. 95 (1880)1; McLaln v.
a., 99 Pa. St. 86 [1882]."
That a temporary Illness of the Witness is not sufficient in a criminal case,
se<- State v. Staples, 47 N. EL L13, 90 Am. Dec 565 (1866); Com. v. McKenna,
. N B. 389 (1893). Contra: People v. Droste, 160 Mich. 66,
N. \v. 87 (1910).
84 statemenl condensed, part of opinion of Waite, 0. J., and concurring
opinion of Field, J., omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 457
In Lord Morley's Case, 6 State Trials, 770, 85 as long ago as the
year 1666, it was resolved in the House of Lords "that in case oath
should be made that any witness, who had been examined by the cor-
oner and was then absent, was detained by the means or procurement
of the prisoner, and the opinion of the judges asked whether such
examination might be read, we should answer, that if their lordships
were satisfied by the evidence they had heard that the witness was
detained by means or procurement of the prisoner, then the examina-
tion might be read ; but whether he was detained by means or procure-
ment of the prisoner was matter of fact, of which we were not the
judges, but their lordships." This resolution was followed in Har-
rison's Case, 12 State Trials, 851, and seems to have been recognized
as the law in England ever since. In Regina v. Scaife, 17 Ad. & El.
(N. S.) 242, all the judges agreed that if the prisoner had resorted to
a contrivance to keep a witness out of the way, the deposition of the
witness, taken before a magistrate and in the presence of the prisoner,
might be read. Other cases to the same effect are to be found, and
in this country the ruling has been in the same way. Drayton v. Wells,
1 Nott & McC. (S. C.) 409, 9 Am. Dec. 718; Williams v. State, 19 Ga.
403. So that now, in the leading text-books, it is laid down that if a
witness is kept away by the adverse party, his testimony, taken on a
former trial between the same parties upon the same issues, may be
given in evidence. 1 Greenl. Evid. § 163 ; 1 Taylor, Evid. § 446. Mr.
Wharton (1 Whart. Evid. § 178) seemingly limits the rule somewhat,
and confines it to cases where the witness has been corruptly kept away
by the party against whom he is to be called, but in reality his state-
ment is the same as that of the others; for in all it is implied that
the witness must have been wrongfully kept away. The rule has its
foundation in the maxim that no one shall be permitted to take ad-
vantage of his own wrong; and, consequently, if there has not been,
in legal contemplation, a wrong committed, the way has not been
35 The resolutions of the judges on these questions, as reported in Kelynge,
55. are as follows:
"4. It was resolved by us all, that in case any of the witnesses which were
examined before the coroner, were dead or unable to travel, and oath made
thereof, tbat then the examinations of such witnesses, so dead or unable to
travel might be read, the coroner first making oath that such examinations
are the same which he took upon oath, without, any addition or alteration
whatsoever.
"5. That in case oath should be made that any witness who had been ex-
amined by the coroner, and was then absent, was detained by the means or
procurement of the prisoner, and the opinion of the judges asked whether
i examination might be read, we should answer, that if their Lordships
were satisfied by the evidence they had heard, that the witness was detained
by means or procurement of the prisoner then the examination might be
read, but whether he was detained by the means or procurement of the pris-
oner, was matter of fact, of which we were not judges, but their lordships.
"6. Agreed, that if a witness who was examined by the coroner be absent,
and oath is made that they have used all their endeavours to find him and
cannot find him, that is not sufficient to authorize the reading of such ex-
amination."
45S HEARSAY (Ch. 3
opened for the introduction of the testimony. We are content with
this long-established usage, which, so far as we have been able to dis-
cover, has rarely been departed from. It is the outgrowth of a
maxim based on the principles of common honesty, and, if properly
administered, can harm no one.
Such being the rule, the question becomes practically one of fact,
to be settled as a preliminary to the admission of secondary evidence.
In this respect it is like the preliminary question of the proof of loss
of a written instrument, before secondary evidence of the contents
of the instrument can be admitted. In Lord Morley's Case, supra,
it would seem to have been considered a question for the trial court
alone, and not subject to review on error or appeal; but without
deeming it necessary in this case to go so far as that, we have no
hesitation in saying that the finding of the court below is, at least,
to have the effect of a verdict of a jury upon a question of fact, and
should not be disturbed unless the error is manifest. * * *
Judgment affirmed. 36
\YARREN et al. v. NICHOLS.
(Supreme Judicial Court of Massachusetts, 1S43. 6 Mete. 2G1.)
The plaintiffs, for the purpose of showing the trespass alleged, and
the circumstances under which it occurred, offered Oliver Luce as a
a witness, by whom they proposed to prove the testimony given, on a
former trial of this cause in the court of common pleas, by Jonathan
\V. Brown, since deceased. Upon inquiry whether the witness could
state the testimony given by said Brown on said trial, the witness re-
plied, that he could give the substance of it, but not the precise lan-
guage of Brown ; and the court ruled, that the witness was incom-
petent to testify upon this point, unless he could state the words used
by the deceased witness, in giving his testimony, and not what he sup-
posed to be the substance of his testimony. The witness said he could
not give the words, or the precise language, used by Brown ; and he
was thereupon rejected. 37
Shaw, C. J. The jury in this action, which is trespass quare
clausum fregit, having returned a verdict, that the alleged trespass
was casual and involuntary, and assessed the damages at $12, and it
appearing that $12 had been tendered as damages, before the action
was brought, the defendant moves for judgment. This is opposed by
• in civil cases, mere absence of the wiincss from the Jurisdiction Is gen-
erally regarded as sufficient to lei In ins former testimony, Minneapolis Mill
v. Minneapolis vV; St. L. By. Co., 51 Minn. 304, 53 N. W. 639 (1892); and
tii'' . ame role has been applied in a Dumber <>r criminal cases, Pruitl v. State,
92 Ala. 41, :• South. 406 (1890). But Bee State v. Houser, 26 Mo. 431 (1858),
contra, a number of the i asea are collected in the note to statu v. ISeffernan,
26 I.. B. a. i.\. S.) 868 (1908).
•7 Statement condensed and part ot opinion omitted.
SeC. 2) RECOGNIZED EXCEPTIONS £59
the plaintiffs, who move for a new trial on the grcand stated in the
report. The principal one is, that the testimony of Oliver Luce, as
to what a deceased witness, Brown, had formerly testified, in this
cause, in the court of common pleas, and which was tendered by the
plaintiffs, ought to have been received.
The rule upon which evidence may be given of what a deceased wit-
ness testified on a former trial between the same parties, in a case
where the same question was in issue, seems now well established in
this Commonwealth by authorities. It was fully considered in the
case of Commonwealth v. Richards, 18 Pick. 434, 29 Am. Dec. 608.
The .principle on which this rule rests was accurately stated, the cases
in support of it were referred to, and with the decision of which we
see no cause to be dissatisfied. The general rule is, that one person
cannot be heard to testify as to what another person had declared,
in relation to a fact within his knowledge, and bearing upon the issue.
It is the familiar rule which excludes hearsay. The reasons are ob-
vious, and they are two. First, because the averment of fact does not
come to the jury sanctioned by the oath of the party on whose knowl-
edge it is supposed to rest; and secondly, because the party, upon
whose interests it is brought to bear, has no opportunity to cross-ex-
amine him on whose supposed knowledge and veracity the truth of
the fact depends.
Now, the rule, which admits evidence of what another said on a
former trial, must effectually exclude both of these reasons. It must
have been testimony, that is, the affirmation of some matter of fact,
under oath, it must have been in a suit between the same parties in in-
terest, so as to make it sure that the party, against whom it is now
offered, had an opportunity to cross-examine ; and it must have been
upon the same subject-matter, to show that his attention was drawn
to points now deemed important. It must be the same testimony
which the former witness gave, because it comes to the jury under
the sanction of his oath, and the jury are to weigh the testimony, and
judge of it, as he gave it. The witness, therefore, must be able to state
the language in which the testimony was given, substantially and in
all material particulars, because that is the vehicle, by which the tes-
timony of the witness is transmitted, of which the jury are to judge.
If it were otherwise, the statement of the witness, which is offered,
would not be of the testimony of the former witness ; that is, of the
ideas conveyed by the former witness in the language in which he em-
bodied them ; but it would be a statement of the present witness's un-
derstanding aiV comprehension of those ideas, expressed in language
of his own. Those ideas may have been misunderstood, modified, per-
verted or colored, by passing through the mind of the witness, by
his knowledge or ignorance of the subject, or the language in which
the testimony was given, or by his own prejudices, predilections or
habits of thought and reasoning. To illustrate this distinction, as we
4G0 HEARSAY (Ch. 3
understand it to be fixed by the cases: If a witness, remarkable for
his knowledge of law and his intelligence on all other subjects, of great
quickness of apprehension and power of discrimination, should de-
clare that he could give the substance and effect of a former witness's
testimony, but could not recollect his language, we suppose he would
be excluded by the rule. But if one of those remarkable men should
happen to have been present, of great stolidity of mind, upon most
subjects, but of extraordinary tenacity of memory for language, and
who could say that he recollected and could repeat all the words ut-
tered by the witness; although it should be very manifest that he
himself did not understand them, yet his testimony would be admis-
sible.
The witness called to prove former testimony must be able to sat-
isfy one other condition, namely, that he is able to state all that the
witness testified on the former trial, as well upon the direct as the
cross examination. The reason is obvious. One part of his statement
mav be qualified, softened or colored by another. And it would be
of no avail to the party against whom the witness is called to state the
testimony of the former witness, that he has had the right and op-
portunity to cross-examine that former witness, with a view of dimin-
ishing the weight or impairing the force of that testimony against him,
if the whole and entire result of that cross-examination does not
accompany the testimony. It may perhaps be said, that, with these
restrictions, the rule is of little value. It is no doubt true, that in
most cases of complicated and extended testimony, the loss of evi-
dence by the decease of a witness cannot be avoided. But the same
result follows, in most cases, from the decease of a witness, whose
testimony has not been preserved in some of the modes provided by
law. But there are some cases, in which the rule can be usefully
applied, as in case of testimony embraced in a few words — such as
proof of demand or notice or notes or bills — cases in which large
amounts are often involved. If it can be used in a few cases, con-
sistently with the true and sound principles of the law of evidence,
there is no reason for rejecting it altogether. At the same time, care
should be taken so to apply and restrain it, that it may not, under
a plea of necessity, and in order to avoid hard cases, be so used as to
violate those principles. It is to be recollected that it is an exception
to a general rule of evidence supposed to be extremely important and
necessary; and unless a case is brought fully within the reasons of
such exception, the general rule must prevail.
I am aware that Mr. Greenleaf, in his learned and very excellent
treatise on Evidence, § 165, has intimated a doubt whether it is wise
to hold the rule in question with this strictness; and the cases from
the Pennsylvania Reports justify the suggestion, and warrant a more
liberal construction of the rule, so far as it is practised on in that
State. But Mr. Greenleaf does not cite the case of Commonwealth v.
SeC. 2) RECOGNIZED EXCEPTIONS 4G1
Richards, 18 Pick. 434, 29 Am. Dec. 608, and probably he had not ad-
verted to it, when his treatise was written. That is a recent case,
and one which we are bound to regard as of high authority in this
Commonwealth.
The rule in regard to proving what a witness formerly testified, on
a prosecution for perjury, does not seem to be strictly analogous.
There, if it is proved by a witness, that the party now on trial formerly
testified positively to a fact, and did not afterwards, in the course of
his testimony, retract or modify that statement; on proof that the
matter, thus testified as a fact, was not true, and the witness knew it,
the perjury assigned may be considered well proved, although the ac-
cused testified to many other things, on the same trial, which the wit-
ness now called does not recollect, and which perhaps would be irrele-
vant, if he could. But the cases, we think, stand on different grounds.
Rex v. Rowley, 1 Mood. Cr. Cas. 111.
All that the witness could state, in the present case, was, that he
could .give the substance of the witness's testimony, but not his pre-
cise language. We lay no stress upon the epithet "precise." It might
properly lead to a further preliminary examination of the extent of
his knowledge, and probably did so. As he could only give the sub-
stance and effect of the testimony, but not the language in which it
was given, we think the judge did right in excluding him.
Judgment for defendants. 38
* * *
STATE v. ABLE.
(Supreme Court of Missouri, 1877. 65 Mo. 357.)
Norton, J. 39 * * * It having thus been definitely settled, that
the evidence of a witness given on a former trial, under the above cir-
cumstances, may be used on a subsequent trial, when the witness has
died in the mean time, the question arises how may it be proved ? In
the case of United States v. Macomb, 5 McLean, 286, Fed. Cas. No.
15,702, Judge Drummond held that when a witness, since deceased, had
testified at the preliminary examination in relation to the offense in
as Where a statute authorized the admission of certain hearsay statements
by persons since deceased, the same court has ruled that it is not necessary
for the witness to be able to repeat the exact words, but that it is sufficient
to give the substance of what was said, observing that: "In no case has it
been held that the testimony is to be received only when the witness can
give the exact words of the deceased person whose declaration is material.
Such a construction of the statute would often exclude important evidence
which the Legislature intended to make admissible. Indeed, it seldom hap-
pens after the lapse of any considerable time tbat a witness can give the
exact words of another, unless they were very few. The ruling was in ac-
cordance with the usual practice when a conversation is put in evidence, and
we are of opinion that it was right." Hayes v. Pitts-Kiinball Co., 183 Mass
262, 67 N. E. 249 (1903).
3» Part of opinion omitted.
462 HEARSAY (Ch. 3
the presence of the accused, witnesses would be permitted to prove
what the deceased witness had testified to at such examination, and
that so far as it related to such proof, the rules of evidence were the
same in criminal as in civil cases. The conclusion was reached in that
case after an examination of the authorities, that the evidence of a
deceased witness might be proved in a criminal case in the same man-
ner that it could be in a civil case, and that in making such proof it
was not necessary to use the precise and exact words of the witness,
but only to give the substance. On this last branch of the proposition
there is some conflict of authority. While the courts of New York,
Massachusetts and Indiana hold that the precise words of the witness
must be given, the courts of Pennsylvania, Maryland. Virginia, Ohio,
Illinois, Alabama and Vermont hold that the substance of what the
deceased witness testified to may be received. Cornell v. Green. 10
Serg. & R. (Pa.) 14; Chess v. Chess, 17 Serg. & R. (Pa.) 409; Gilder-
sleeve v. Caraway, 10 Ala. 260, 44 Am. Dec. 485 ; Wagers v. Dickey,
17 Ohio, 439, 49 Am. Dec. 467; Marshall v. Adams, 11 111. 37; Caton
v. Lenox, 5 Rand. (Va.) 36; State v. Hooker, 17 Vt. 659: Kendrick
v. State, 10 Humph. (Tenn.) 479: Sloan v. Somers, 20 N. J. Law, 66;
Ballenger v. Barnes, 14 N. C. 460; Young v. Dearborn, 22 N. Ii. 372.
In the case of Cornell v. Green, supra, Justice Gibson, in speaking of
effects of a rule requiring the evidence of the deceased witness to be
given in the exact words of the witness, observed : "The rule applied
with that degree of strictness would be altogether useless in practice,
for there is no man, be his powers of recollection what they may,
who could be qualified to give such evidence; and if he should under-
take to swear positively to the very words, the jury ought to disbelieve
him on that account alone."
In applying the rule that the substance of what the deceased witness
testified to may be given in evidence the distinction between narrating
the statement made by the witness and giving the effect of his testi-
mony should be observed. This distinction may be illustrated thus :
If a witness state that A., as a witness on a former trial, proved the
execution of a written instrument by B., that would be giving the ef-
fect of his testimony, which is nothing else than the result or conclu-
sion. But if the witness states that A. testified that he had often seen
B. write, that he was acquainted with his hand writing, and that the
name subscribed to the instrument of writing exhibited was B.'s signa-
ture, that would be giving the substance of A.'s testimony, though it
might not be in the exact words. The authorities above cited, we
think, establish the following propositions: That in a criminal case
the evidence of a deceased witness, who was testified on a former
trial may he proved and received on a subsequent trial of the same
case between the same parties, the death of the witness first being
shown; that the witness called to pro\e what was testified to by
the deceased witness, is not required to use the ex.-n-t words of the
witness, hut may give the sub tance of all that he testified to; that in
Sec. 2) RECOGNIZED EXCEPTIONS 463
proving what was sworn to by the deceased witness, the same rules
apply both in civil and criminal cases. It has been held by this court
in the case of Jaccard et al. v. Anderson, 37 Mo. 95, that the testimony
of a witness since deceased, preserved in a bill of exceptions, filed on
the former trial of the cause, could be received in evidence, when
proved to be the substance of the testimony which the deceased wit-
ness gave on the former trial. In disposing of this question, it is re-
marked : "that it is to be presumed that the bill of exceptions contained
all the testimony of the witness in chief and on cross-examination,
which the parties and their counsel deemed material to the issue, or
necessary to be saved in a bill of exceptions. On the face of the tes-
timony offered, i't appears to have been all that was given or deemed
important on the former trial. One of defendant's counsel testified
that he assisted in preparing the former bill of exceptions, and
that he thought it contained in substance the testimony of King at the
trial, though 'not all he may have said.' We think it sufficiently ap-
pears that the substance of the whole testimony was contained in the
bill of exceptions that was offered in evidence."
Applying the principle of the decision to the case before us, it will
manifestly appear that the court, in admitting the evidence of the
deceased witness, Holliday, as preserved in the bill of exceptions,
committed no error. Haughawout, one of the defendant's counsel,
swears that he kept minutes of the testimony of the former trial, and
prepared the bill of exceptions from his own minutes; and, Robin-
son, another attorney of defendant, that it was agreed on in the pres-
ence of the judge and attorneys for the State and defendant, but that
he could not state that it contained all of the testimony of the witness.
The evidence of this witness alone, under the views expressed in Jac-
card v. Anderson, supra, might have authorized the court to receive
the evidence. The testimony of Haughawout is more than supplement-
ed by that of Judge Cravens before whom the first trial was had, and
who signed the bill of exceptions. He stated as certified to by the
special judge, that he remembered the substance of the evidence of
Holliday, the deceased witness, and that he thought the bill of ex-
ceptions contained the substance of the testimony. It is urged that the
court committed error in allowing the witness, Cravens, to look at
the bill of exceptions to refresh himself as to the name of the witness.
Tins we think was permissible and we can see no error in it authoriz-
ing a disturbance of the judgment. The evidence being thus identified,
was read from the bill of exceptions, and it appears on the face of it,
that the witness, Holliday, was examined in chief, cross-examined, re-
examined and re-cross-examined. Looking through the whole case,
from beginning to the end of the trial, we have discovered no error
authorising an interference with the judgment. The defendant has
been twice put upon his trial, and has been twice found guilty of the
crime of murder in the first degree. The evidence seems to warrant
the finding of the jury. All the circumstances proven in the case
464 HEARSAY (Ch. 3
(which we deem unnecessary to advert to here) point to defendant as
the guilty party.
Judgment affirmed, the other judges concurring.
Affirmed*
II. Dying Declarations
THE KING v. JOHN.
(Court of King's Bench, 1790. 1 East, P. C. .357.)
On the prosecution of Thomas John for the murder of Rachael his
wife, it was proved by the confession of the prisoner himself in con-
versation with others before his wife's death, that in September, 1789,
upon a quarrel between them, he had laid hold of his wife, and they had
fallen down, he uppermost, and he had given her several violent kicks
and blows, so that according to his own words, he knew she never
would raise her hand against him again. It was also proved that she
died in the same month ; that she was taken ill on a Friday, took to her
bed the next day, and died on the Sunday seven night following, be-
ing confined to her bed by her illness, which was severe, the whole
time. But it did not appear that she had expressed any apprehension
of danger, though she retained her senses till the day before her death.
Three witnesses deposed to conversations during her illness, at which
the husband was present, in which she attributed her situation to his
ill treatment ; and the conduct and answers of the husband were given
in evidence, although it was objected on his behalf that what was said
by the wife even in the presence of the husband, and to which he re-
turned answers tending to charge himself, ought not to have been re-
ceived. Evidence was also given of her declarations in the prisoner's
absence, after she was confined to her bed, all of which tended to shew
the circumstances of violence he had committed upon her. It was ob-
jected, that the declarations of the wife in the absence of the prisoner
ought not to have been admitted in evidence, as it was not proved that
she considered herself at the time as a dying person; the evidence not
being express on that head ; but that if the evidence were admissible,
it ought to have been left to the jury to consider whether the wife were
at the time conscious of approaching death. Objection was also made,
that there being declarations of a wife against her husband were not on
that account evidence. The court was of opinion, that the reason of
the rule that a wife shall not be admitted to give evidence against her
husband did not apply to this case. And upon the other point, thai
the evidence of the state of the wife's health at the time the declarations
40 in I'ucli v. Bock Island. 'M TI. S. 698, 24 L. Ed. 1101 (1878), the same
rule was applied to the proof of the contents of a deposition which had been
in the Chicago Are.
SeC. 2) RECOGNIZED EXCEPTIONS 465
were made was sufficient to shew that she was actually dying; and
that it was to be inferred from it, that she was conscious of her situa-
tion ; and no particular direction was given to the jury on the subject.
The jury having found the prisoner guilty, these points were referred
to the judges; who at a conference in Easter term, 1790, all agreed
that it ought not to be left to the jury to say, whether the deceased
thought she was dying or not; for that must be decided by the judge
before he receives the evidence. And if a dying person either declare
that he knows his danger, or it is reasonable to be inferred from the
wound or state of illness that he was sensible of his danger, the dec-
larations are good evidence. But as to the declarations themselves in
this case, all the judges, except two, thought that there was no founda-
tion for supposing that the deceased considered herself in any danger
at all. 41
DOE dem. SUTTON v. RIDGWAY.
(Court of King's Bench, 1820. 4 Barn. & Aid. 53.)
Ejectment to recover lands in the county of Somerset. Plea, gen-
eral issue. At the trial, before Burrough, J., at the last Summer as-
sizes for that county, the lessor of the plaintiff, who claimed, as heir
at law of Anne Walker, the person last seised, in order to deduce the
pedigree, offered in evidence the dying declarations of one Barrett, who
had as she herself stated, been servant to Margaret Walker, through
whom the pedigree 42 was traced. This person had, during her last ill-
ness, at the age of 103, after she had expressed her full conviction
that she could not recover, and only a few days before her death,
made these declarations. The learned judge rejected the evidence;
and the defendant having obtained a verdict,
Scarlett moved for a new trial. These declarations ought to have
been received in evidence. The principle on which such evidence is
receivable is stated to be founded partly on the situation of the dying
person, which is considered as powerful over his conscience as the ob-
ligation of an oath, and partly on the absence of interest at such a time,
which dispenses with the necessity of a cross-examination, Phillipps on
Evidence, 100, 1st edit. ; and this equally applies to civil as to criminal
cases. This will be found laid down in the case of the subscribing wit-
ness to a bond, whose dying declarations were allowed to be given in
evidence, by Heath, J., cited by Lord Ellenborough in Avison v. Kin-
naird, 6 East, 195, to prove it a forgery and in Wright dem. Clymer
v. Littler, 3 Burr. 1244. And in Drummond's Case, 1 Leach, Cro. Cas.
4i For the respective functions of the judge and jury in such cas
Brister v. State, 26 Ala. 107 (1855), ante, p. 120; State v. Monich, 74 N. J.
Law, 522, G4 Atl. 1016 (1906).
42 See Johnson v. Lawson, post, p. 664.
Hint.Ev.— 30
iv. .-sat Ch.3
372 : 5;-ems to have been a the ig declaral is of a
- g - i admissible, alth ,:gh
... ....... , I .: die | art ang
- - i the party was in ar-
rh* ns
: . been re . . also referred to Hoick i -
- PI J: 7 : ~
r. 7 7! - - ; . except
to the general rule ;: g unless and
lb. the opportunity for crc ss-exa I am not aware of a
..:-..-• : .:-: :. - 5 not fall thin
■ : - 7::e e :c was j rejec
.:-... .. j -.
J. In thf of Alison v. Kinnaird, the declarations
re re: iiirerenl principle. 7 they, were part of
the res § stac and, in 7 - red were
se of the pa: d had taken the poison. The case of the sub-
scribing witr. :ms to be founded on th have been ca
if he had been alive, and it would then have been compe-
tent to prove, by cross-examination, his dt as tc the fc rg
die bond. Now the party ought no: by the d witness, to
be deprived of curtaining the ac ntag This case,
7:~ r --=■.- :- ve— ::7rrer.:
Holkovd and Bks incurred.
ed on other grounds.
COMMC ^WEALTH - "C 3PER.
-Heme Judicial Court of Massachusetts. -•_. " M Am.
Indictment for manslaughter in killing iiller by striking her
mx aead with a certain instrume: fid."
oerior court, .. J., it appeared
Phebe died on the 12th of December, 1860, in consequence of
nd injuries inflicted upon her person at her home in
E Novei 22, 1 hn H. Sherman,
dan v. .ended her, testified that on the morning of the
ember she told him that she should never be any better,
should never recover; that he told he ight, that
and mat she replied that she had received a mortal
i, cal7 on the part of the
mmonwealth, testified tha a on the 25th of Xo-
that she lid not live, and
had m make one i .t, and said: "I cannot live, let
r.-. -,-.-: : . ...:.-; *o the ':/■■ ■ -. I am :,'-•. W.<A against it." The wit-
Sec. 2) RECOGNIZED EXCEPTIONS 4C>7
ness was then allowed to testify, under objection, that Phebe stated
to him that Patience Cooper committed the deed ; that she came in
and said, "How da 3 r ou do? I have come to pay my bill," and the
deceased got up to snuff the wick of the lamp, when Patience struck
her.
The defendant offered to prove by several witnesses with whom
Phebe was well acquainted that she had met them and talked with
them, mistaking them at the time for other persons whom they did
not resemble, and that she was in the habit of thus mistaking persons;
but the evidence was rejected.
The jury returned a verdict of guilty, and the defendant alleged
exceptions. 43
Metcalf, J. The court are of opinion that the testimony of Fitz-
gerald, as to the statement made to him by the deceased concerning
the assault upon her by the defendant, was rightly admitted in evidence
as a dying declaration. The deceased had said to him that she could
not live, and that she had sent for him to make a request respecting her
funeral. We think this satisfactorily shows that her subsequent state-
ment was made under a sense of impending death — a consciousness
that she was near her end. 1 Greenl. Ev. § 158; Commonwealth v.
Casey, 11 Cush. 421, 59 Am. Dec. 150. She lived seventeen days aft-
erwards ; but declarations made by a deceased person, when he be-
lieved that he should not recover, have been decided to be admissible
although he lived eleven days after making them. Rex v. Mosley, 1
Mood. C. C. 97, and Regina v. Reaney, 7 Cox, C. C. 209. And our
judgment concurs with that of the English court of criminal appeal,
as expressed by Chief Baron Pollock, in the latter of those cases. "In
order," he says, "to render such a declaration admissible, it is neces-
sary that it should be made under the apprehension of death. The
books certainly speak of near approaching death ; but there is no case
in which any particular interval, any number of hours or days, is
specified as the limit. In truth, the question does not depend upon the
length of interval between the death and declaration, but on the state
of the man's mind at the time of making the declaration, and his be-
lief that he is in a dying state." S. C. Dearsly & Bell, 151. See also
Matthews on Crim. Law, 254 ; Powell on Ev. 125-127 ; 1 Phil. Ev.
(4th Amer. Ed.) 293. Rose. Crim. Ev. (5th Ed.) 34. * * *
But the court are of opinion that the testimony should not have been
excluded which was offered to show that the deceased had met with
persons well acquainted with her, and with whom she was well ac-
quainted, and had mistaken them at the time for other persons whom
they did not resemble; and that she was in the habit of thus mistak-
ing persons. We think this was testimony proper for the considera-
tion of the jury.
43 Statement condensed and part of opinion omitted.
468 HEARSAY (Ch. 3
The great question in the case was, whether the defendant was the
person who caused the deceased's death — a question of identity. And
according to the declaration of the deceased, the assault was made
upon her immediately after the person making it had entered her room,
which was dimly lighted, and before that person had uttered a dozen
words.
A defendant against whom dying declarations are received has not
the opportunity of cross-examining the declarant. Hence it is justly
held that he is entitled to every allowance and benefit that he may
have lost by the absence of the opportunity of a more full investi-
gation by means of cross-examination. Ashton's case, 2 Lewin, C. C.
147. "It is to be considered," says Mr. Greenleaf, "that the particu-
lars of the violence, to which the deceased has spoken, were in gen-
eral likely to have occurred under circumstances of confusion and
surprise calculated to prevent their being accurately observed; and
leading both to mistakes as to the identity of persons, and to the omis-
sion of facts essentially important to the completeness and truth of
the narrative." 1 Greenl. Ev. § 162.
New trial granted.**
THE QUEEN v. JENKINS.
(Court of Criminal Appeal, 1S69. L. R. 1 Cr. Cas. 187.)
The defendant was found guilty of murder and sentenced accord-
ingly, but execution was stayed in order that the opinion of the court
might be taken on the admissibility of a dying declaration. 45
Kelly, C. B. We are all of opinion that the conviction must be
quashed. The question, and the only question, is, whether the decla-
ration of the dying woman was admissible in evidence, because it is
clear that if the declaration is to be excluded, there was no evidence
to go to the jury. This question depends upon what passed between
the clerk and the deceased just before and at the time when the state-
ment was made. She was asked if she felt she was in a dangerous
state, whether she felt she was likely to die? She said "I think so."
She did not express an absolute belief, but an impression, that she was
likely to die. There is nothing conclusive in this part of the statement.
The clerk then went on to ask her why she thought that she was about
to die. She replied, "From the shortness of my breath." The clerk
says, "Her breath was extremely short — the answers were disjointed
from its shortness. Some intervals elapsed between her answers."
The clerk then said to her, "Is it with the fear of death before you
44 But where the victim lives for a considerable time after making a dy-
ing declaration, it <;innot be assumed that later statements were made under
the Bame ol Impending death, .-is the lirst. Carver v. United iStates :
. 663, L6 Sup. Ot 888, io L. Bd. 682 (1890).
40 Statement condensed.
Sec. 2) RECOGNIZED EXCEPTIONS 4G9
that you make these statements?" And added, "Have you any pres-
ent hope of your recovery?" She said, "None." Thereupon he
wrote out what he conceived to be the substance of her statement. Aft-
er detailing the facts of the case, the statement as he wrote it made
her say, "I have felt great pain in my chest, bosom, and back. From
the shortness of my breath, I feel that I am likely to die, and I have
made the above statement with the fear of death before me, and with
no hope of my recovery." If the deceased had subscribed this declara-
tion, a very difficult question might have arisen. But it appears that
after reading over these words to her, and asking her to correct any
mistake he might have made, she suggested the words "at present."
She said no hope "at present" of my recovery. The clerk then inter-
lined the words "at present."
The question is, whether this declaration as it now stands was ad-
missible in evidence. The result of the decision is, that there must be
an unqualified belief in the nearness of death, a belief without hope that
the declarant is about to die. If we look at reported cases, and at the
language of learned judges, we find that one has used the expression
"every hope of this world gone" Per Eyre, C. B., Woodcock's Case, 1
Leach, C. C. at page 502; another "settled hopeless expectation of
death" Per Willes, J., Reg. v. Peel, 2 F. & F. at page 22 ; another "any
hope of recovery, however slight, renders the evidence of such decla-
rations inadmissible." Per Tindal, C. J., Rex v. Hayward, 6 C. & P.
at page 160. We, as judges, must be perfectly satisfied beyond any
reasonable doubt that there was no hope of avoiding death ; and it is
not unimportant to observe that the burthen of proving the facts that
render the declaration admissible is upon the prosecution.
If the present case had rested upon the expression, "I have made
the above statement with the fear of death before me, and with no
hope of my recovery," a difficult question might have been raised.
But when these words were read over to the declarant, she desired to
put in the important words "at present ;" and the statement so amended
is "with no hope at present of my recovery." We are now called up-
on to say what is the effect of these words, taking into consideration
all the circumstances under which they were put in. The counsel for
the prosecution has argued that the words "at present" do not alter the
sense of the statement. We think, however, that they must have been
intended to convey some meaning, and we must endeavor to give ef-
fect to that meaning.
It is possible that when the statement was first read over to the de-
ceased, she may have remembered that what she had been asked was,
whether she had "any present hope of recovery," and observing that the
word "present" was omitted, that she merely wished to correct the dis-
crepancy between the words as spoken and those written down, without
wishing to make any alteration in the meaning of those words. On the
other hand, she may have meant to alter and qualify the statement as
first written. She may have wished to express, "All I meant to say
•170 HEARSAY (Ch. 3
was, 'I have not hope at present ;' " but not to say that she had abso-
lutely no hope. The case is capable of either of these two construc-
tions, one of which is against and the other in favour of the prisoner;
and if we had simply to choose between the two, without anything to
guide us as to the real meaning of the deceased, we should resolve the
doubt in favour of the prisoner in favorem vitae.
But another mode of solution is presented which calls on us to de-.
cide for the prisoner on another ground. The deceased was asked in
express terms by the clerk "to correct any mistake that he might have
made." She then said, "Put in the words 'at present.' " Even if this
were not a criminal case, this would be sufficient to show that the omis-
sion of "at present"' was a mistake — that she meant "no present hope"
as distinguished from "no hope." She therefore intended the words
to have some substantial meaning; and if they have any meaning at
all, they must qualify the absolute meaning which the declaration must
contain in order to render it admissible evidence. The conviction
must therefore be quashed.
Byles, J. As I tried the case, I wish to state that I entertain no
doubt that the declaration was not admissible. There being no oth-
er evidence against the prisoner, I thought it best to admit the declara-
tion, and reserve the point whether it was admissible evidence.
Dying declarations ought to be admitted with scrupulous, and I had
almost said with superstitious, care. They have not necessarily the
sanction of an oath ; they are made in the absence of the prisoner; the
person making them is not subjected to cross-examination, and is in
no peril of prosecution for perjury. There is also great danger of
omissions, and of unintentional misrepresentations, both by the de-
clarant and the witness, as this case shews. In order to make a dying
declaration admissible, there must be an expectation of impending and
almost immediate death, from the causes then operating. The au-
thorities shew that there must be no hope whatever.
In this case the deceased said originally she had no hope at present.
The clerk put down that she had no hope. She said in effect when
the statement was read over to her, "No, that is not what I said, nor
what I mean. I mean that at present I have no hope;" which is, or
may be, as if she had said, "If I do not get better, 1 shall die." The
conviction must be quashed.
Conviction quashed. 40
Mulkey, J., in Tracy v. People, 97 111. 101 (1SS0):
"* * * Assuming that the deceased was a believer in a future state of
rewards and punishments, and such is the presumption where nothing ap-
pears to the contrary, the Use Of profane lanmiaw immediately preceding the
Btatemenl is bardly to be reconciled with the assumption thai be was at the
time Ot Bound mind and Impressed With a sense of almost immediate death.
To say the least of it, it was a fact which, it' proved, would have tended
strongly to negative that hypothesis, and should therefore have i n received
and considered by the court In connection with the other facts and circum-
stances bearing upon the ques! ion. Jt is bard tO realize bOW any sane man
who believes in bis accountabilitj to God can be Indulging In profanity when
Sec. 2) RECOGNIZED EXCEPTIONS 471
BARFIELD v. BRITT. 47
(Supreme Court of North Carolina, 1854. 47 N. C. 41, 62 Am. Dec. 190.)
Battle, J. 48 Two questions are presented by the bill of excep-
tions: First: Whether in the issue joined, upon the plea of justifica-
tion, the dying declarations of Jacob Britt could be given in evidence
by the defendant, to prove the truth of the words for which the action
was brought ? Secondly : Whether his Honor was right in refusing
to instruct the jury that the defendant must sustain his plea by the
same cogency of proof as would be required against the plaintiff,
were he on trial for his life, under a charge of murder ; but on the
contrary, saying to them that a preponderance of evidence, as in a civil
case, was all that was necessary.
The first question is raised by the plaintiff's exceptions to the ad-
mission of the testimony, and we think the exception is well founded.
The reasons by which his Honor's decision was influenced are not
stated, and we do not know that he felt himself bound by the case of
McFarland v. Shaw, 4 N. C. 200; or whether he thought the issue be-
fore him was the same as it would have been had the plaintiff been
on trial for the murder of Jacob Britt, and that therefore this was an
exception to the general rule, that dying declarations are not per se ad-
missible in civil cases. We say per se, because where dying declara-
tions constitute part of the res gestae, or come within the exception of
declarations against interest, or the like, they are admissible, as in
other cases, irrespective of the fact that the declarant was under the
apprehension of death. 1 Greenlf. Ev. § 156. Whether the decision
was influenced by the one reason or the other, or by both combined,
we are satisfied that it is not supported by principle, while it is op-
posed by the whole current of the recent cases in England and in this
country.
at the same time he really believes that in a few short hours at most he will
be called upon to appear before Him to answer for the deeds done in the
body.
"But outside of this, the fact sought to be shown was important in an-
other point of view. It strikes at the very foundation of the reasons upon
which dying declarations are admitted at all. There are certain guaranties
of the truth of dying declarations, growing out of the solemnity of the time
and circumstances under which they are made, which, in contemplation of
law, are supposed to compensate for the fact that they are not sanctioned by
an oath, and the party against whom they are used has had no opportunity
to cross-examine. But when it is affirmatively shown that the declarant in
making the statement was not actuated by the motives and influences which
the law contemplates, or where, upon the whole of the evidence, there is a
reasonable doubt of this fact, the statement should be excluded; for in such
case it would be without those guaranties for its truth which the law con-
templates "
4 7 For the statement of this case, see ante, p. 3S.
* 8 Part of oDinion omitted.
472 hearsay (Ch. 3
The case of McFarland v. Shaw, was decided by the Supreme Court
under its former organization, in the year 1815. The action was by
a father for the seduction of his daughter: the defendant pleaded
not guilty, and on the trial, the plaintiff, to piove the seduction, offered
to show that after all hope of life was gone, his daughter, who was
then sick in child-bed, desired that the defendant might be sent for;
and upon being informed that he would not see her, exclaimed, "I am
going: he will soon go too, when he will be obliged to see me, and will
not dare to deny the truth." The testimony was objected to, but re-
ceived by the Court; and the case came before the Supreme Court
on a motion for a new trial : The Court, after stating that such tes-
timony was admissible in certain criminal cases, in which life was at
stake, contended that, though they had no precedent to guide them,
it ought, from reason and analogy, to be admitted in a case like the
one before them; but they grounded themselves chiefly on the cir-
cumstance, "that the fact disclosed in her declaration could only be
proven by herself; she was the injured party through whom the
cause of action arose to the father." The Court then say further,
"we give no opinion how far the dying declarations of an indifferent
person, not receiving an injury and not a party to the transaction,
would be evidence in a civil case. Our decision is confined to the
state of facts presented in this case." It is manifest that the Court
labored under the impression, which then generally prevailed, that
dying declarations were admissible upon the general principle "that
they are declarations made in extremity, when the party is at the point
of death, and when every hope of this world is gone: when every
motive to falsehood is silenced, and the mind is influenced by the
most powerful considerations to speak the truth: a situation so sol-
emn and so awful is considered by the law as creating an obligation
equal to that which is imposed by a positive oath in a court of justice."
If the admission stood upon this general principle alone, it might well
have been contended, as it was contended, that dying declarations ought
to be admitted in all cases, civil as well as criminal. But another ele-
ment in the test of truth was overlooked by those who insisted upon
this latitude of admission, to wit: the opportunity of confronting and
cross-examining the declarant. The privilege of cross-examination has
been carefully secured to the party, to be affected by them, in depo-
sitions taken before magistrates, and the testimony of deceased wit-
nesses on a former trial. The importance of preserving it, has no
doubt restricted the admission of dying declarations to the criminal
cases only "where the death of the deceased is the subject of the
charge, and the circumstances of the death the subject of the declara-
tions." Such declarations, then, are admitted "upon the ground of
the public necessity of preserving the lives of the community by bring-
ing man-slayers to justice. For it often happens that there is no third
person present to be an eye witness to the fact, and the usual wit-
Sec. 2) RECOGNIZED EXCEPTIONS 473
ness 40 in other cases of felony, namely, the injured party, is himself
destroyed." See Cowen and Hill's notes to Phil, on Ev. pt. 1, 610;
1 Greenlf. on Ev. § 156, and the cases there cited. The principle of
admission, being thus restricted, necessarily overrules the case of Mc-
Farland v. Shaw, and shows that even if the issue be, as in this case,
whether the plaintiff murdered the deceased, the dying declarations
cannot be heard, because such issue is joined in a civil case. * * *
Venire de novo. 50
REG. v. HIND.
(Court of Criminal Appeal, 1S60. 8 Cox, Cr. Cas. 300.)
Case reserved by Keating, J., for the opinion of this Court.
John Daubeney Hind was tried before me, at the last assizes for
the county of Gloucester, and convicted upon an indictment charging
him with feloniously and unlawfully using certain instruments upon
the person of one Mary Woolford, deceased, with intent to procure
the miscarriage of the said Mary Woolford.
On the trial, a dying declaration of the said Mary Woolford was
tendered in evidence on the part of the prosecution and objected to
on the part of the prisoner, upon the ground that the death of Mary
Woolford was not the subject of the inquiry.
I received the evidence, but reserved the question as to its admissi-
bility, and respited the execution of the sentence until the Court of
Criminal Appeal should pronounce its decision upon the point. See
R. v. Baker, 2 M. & Rob. 53.
If the Court should be of opinion that the evidence was not admis-
sible, then the judgment is to be reversed, inasmuch as without the
evidence of the dying declaration of Mary Woolford the prisoner
could not have been convicted.
If the Court should think the evidence admissible, then the judgment
is to stand.
Pollock, C. B. In this case we are all of opinion that the dying
declaration of the woman was improperly received in evidence. The
rule we are disposed to adhere to, is to be found laid down in Rex
v. Mead, 2 Barn. & Cres. 608. There Abbott, C. J., said, "The gen-
eral rule is, that evidence of this description is only admissible where
*° But the use of dying declarations is not confined to cases where there
are no other witnesses, but, if otherwise competent, they are admitted in cas-
es where the other evidence is ample. Commonwealth v. Roddy, 184 Pa. 274.
39 Atl. 211 (1898).
oo Accord: Stobart v. Dryden, 1 M. & W. 615 (1836); Daily v. New York
& N. H. Ry. Co., 32 Conn. 356, 87 Am. Dec. 176 (1S65) ; Marshall v. Chicago ,V
G. E. Ry. Co., 48 111. 475, 95 Am. Dec. 561 (1S6S) ; Brownell v. Pacific Rv.
Co., 47 Mo. 244 (1S70) ; Wilson v. Boerem, 15 Johns. (N. Y.) 286 (1818). Con-
tra: Thurston v. Fritz, 91 Kan. 468, 138 Pac. 625, 50 L. R. A. (N. S.) 1167,
Ann. Cas. 1915D, 212 (1914), admitting a dyine; declaration as to a business
transaction.
474 HEARSAY (Ch. 3
the death of the deceased is the subject of the charge, and the circum-
stances of the death the subject of the dying declaration." Speaking
for myself, I must say that the reception of this kind of evidence is
clearly an anomalous exception in the law of England, which I think
ought not to be extended.
Conviction quashed. 61
BROWN v. COMMONWEALTH.
(Supreme Court of Pennsylvania, 1S73. 73 Pa. 321, 13 Am. Rep. 740.)
At April Term, 1872, of the court below, the grand jury found a
true bill against Joseph Brown for the murder of Daniel S. Kraemer.
The indictment was tried August 27th, 1872.
The evidence was that the deceased was found on the 26th of Feb-
ruary, 1872, in a lane about three hundred yards from his house, and
that the wife shortly before, on the same day, was found on her bed
in the house, with her head beaten badly; she died from the injuries
on the 4th of March. The husband was about sixty years old, and
the wife about fifty.
The Commonwealth recalled Sophia Fehr, and proposed to examine
her as to dying declarations of Mrs. Kraemer on Monday and Tuesday,
upon the subject of the murder of her husband.
The defendant objected, amongst other things, that the dying dec-
larations of Mrs. Kraemer, as a part of the res gestse, or surrounding
circumstances, proposed to be offered, on Monday following, are in-
admissible, because not accompanying the transactions, not concomitant
with the murder of Daniel S. Kraemer, on Sunday evening, preced-
ing, but are mere hearsay evidence, not made in the presence of the
prisoner; and they are irrelevant in this issue as to the murder of
Daniel S. Kraemer.
The Court admitted the offer and sealed a bill of exceptions.
The Commonwealth then gave in evidence the declarations of Mrs.
Kraemer tending to connect the prisoner with the murder. 62
Read, C. J. * * * Under this head is ranged the reception under
objection of the dying declarations of Mrs. Kraemer, the wife of the
murdered man. "The dying declarations of a person who expects to
die, respecting the circumstances under which he received a mortal
injury, are constantly admitted in criminal prosecutions, where the
ath is the subject of criminal inquiry, though the prosecution be for
manslaughter; though the ;i d was not present when they were
made, and had no opportunity for cross-examination, and against
Lccord: Johnson v. State, 50 Ala. 466 (1874); Com. v. Homer, L53 Mass.
343, 26 N. !:. 872 (1891); People v. Davis, 56 N. Y. 95 (1874); Railing v. Com.,
110 Pa. 100, l aii. 31 I (1885).
Statement condensed and part of opinion omltti d.
Sec. 2) RECOGNIZED EXCEPTIONS 475
or in favor of the party charged with the death." "When every hope
of this world is gone, when every motive to falsehood is silenced, and
the mind is induced by the most powerful considerations to speak the
truth, a situation so solemn and awful is considered by the law as
creating the most impressive of sanctions." 1 Wharton's Criminal
Law, § 669; 3 Russell, by Greaves, 250; 1 Greenleaf, §§ 156, 162,
346; 1 Taylor on Evidence, 616.
"The constitutional provision," says Dr. Wharton, "that the ac-
cused shall be confronted by the witnesses against him does not ab-
rogate the common law principle, that the declarations in extremis
of the murdered person in such cases are admissible in evidence." Id.
In Woodsides v. State, 2 How. (Miss.) 655, the court, at page 665,
in answer to the constitutional objection that the prisoner had a right
to be confronted with the witness against him, say: "But it is upon the
ground alone, that the murdered individual is not a witness, that his
declarations made in extremis can be offered in evidence upon the trial
of the accused. If he were or could be a witness, his declaration upon
the clearest principle would be inadmissible. His declarations are
regarded as facts or circumstances connected with the murder, which,
when they are established by oral testimony, the law has declared to
be evidence. It is the individual who swears to the statements of the
deceased that is the witness, not the deceased." In Anthony v. State
of Tennessee, Meigs (Tenn.) 277, 33 Am. Dec. 143, the court say, upon
the first ground of objection, "We are all of opinion mat the Bill of
Rights cannot be construed to prevent declarations properly made in
articulo mortis from being given in evidence against defendants in
cases of homicide."
The same doctrine is to be found in State of Iowa v. Nash, 7 Iowa,
347, and in Robbins v. State of Ohio, 8 Ohio St. 131 ; Com. v. Casey,
11 Cush. (Mass.) 417, 59 Am. Dec. 150, and very directly in Com. v.
Carey, 12 Cush. (Mass.) 246. There are also various statements to
the same effect in most of the decisions cited above in relation to the
admission of evidence of the testimony of a deceased witness.
All these cases are confined to the dying declarations of the mur-
dered person upon the trial of the individual accused of the murder.
At the York assizes on the 17th July, 1837, in Rex v. Baker, 2 Moo.
& Rob. 53, it was held, on an indictment against a prisoner for the
murder of A. by poison, which was also taken by B., who died in con-
sequence, that B.'s dying declarations were admissible. Coltman, J.,
after consulting Parke, B., expressed himself of opinion that as it was
all one transaction, the declarations were admissible, and accordingly
allowed them to go to the jury, but he said he would reserve the point
for the opinion of the judges. The prisoner was acquitted. This
case is entitled to greater weight, as Baron Parke, the year before, in
Stobart v. Dryden, 1 Mees. & Welsby, 615, had been considering the
question of dying declarations, after full argument, and delivered
476 HEARSAY (Ch. 3
the opinion of the court. This case is mentioned in 1 Phillips and Ar-
nold, 243, and 3 Russell, 268 ; 1 Taylor on Evidence, 618.
In State v. Terrell, 12 Rich. (S. C.) 321, it was held upon the trial
of an indictment for the murder of A. by poison, which was taken
at the same time by B. and C, both of whom as well as A. died from
its effects, the dying declarations of B. are admissible against the pris-
oner, although the general rule seems to be, that dying declarations
are admissible only, where the indictment is for the murder of the
party making the declarations. The murder was effected by putting
strychnine in a bottle of whiskey, administered by the defendant, at
the same time, to three persons, and caused the deaths of the grand-
father and uncle of the prisoner, and of a third person, whose dying
declarations were received in evidence upon the trial of the accused
for the murder of his grandfather.
Upon the authority of these cases the learned judge admitted the
dying declarations of the wife, upon the trial of the defendant for the
murder of her husband. In this there was error, for the husband
was found dead on Monday morning 26th Feb., 1872, three hundred
yards from his dwelling, and his wife was discovered on the same
morning lying across her bed in the house in an insensible condition
and with her face and head terribly beaten and disfigured. Kraemer
and his wife were both advanced in years and there was no doubt that
robbery of gold and silver which was known to be in the house led
to their murder, but we do not see any facts that would bring these
dying declarations of Mrs. Kraemer within those two authorities, sup-
posing them to be good law.
If the prisoner had been tried upon the indictment for the murder
of Mrs. Kraemer, her dying declarations would have been strictly
legal evidence against him. * * *
Judgment reversed.
STATE v. DRAPER.
(Supreme Court of 'Missouri, 1877. G5 Mo. 335, 27 Am. Rep. 287.)
Norton, J. 68 The defendant was indicted for murder in the first
degree in the circuit of Jasper county, at the September term, 1876,
for the killing of one J. L. Gilbert. On defendant's application the
venue of the cause was changed to the circuit court of Greene coun-
ty. In this latter court defendant was put upon his trial, at its May
term, 1877, which resulted in his conviction for murder in the first de-
gree. Unsuccessful motions for a new trial and in arrest of judgment
having been made, the cause is brought here for review on ap-
d. * * *
6« Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 4:77
In the progress of the trial witness Carter was permitted to testify
as to the dying declaration of Gilbert, against defendant's objections.
His evidence was as follows : "Gilbert told him he could not live till
morning, that he could not live through the night. Gilbert's voice was
very weak. He told me his trouble with Draper originated about a
trunk ; that Draper and his wife had boarded with him ; that some two
or three weeks before, they went away, owing him for board, and he
left the trunk; that he and Draper had trouble about it then, that they
quarreled, and Draper abused him ; that Draper had been to him af-
terwards for the trunk and threatened him ; that he refused to let him
have it till he paid him, and that he had kept the trunk ; that Draper
came to his house on Saturday evening before that evening, and call-
ed him out doors and outside the gate and told him that by G d, the
d d son of a bitch, if he did not give up the trunk he would cut
his G d d d heart out, and skin him, and hang his skin upon the
fence to dry ; that Draper knocked him down, and inflicted the wounds
of which he, Gilbert, believed he was dying."
It is urged as an objection to the evidence that no proper foundation
had been laid for its introduction, and that all that portion of the state-
ment made by Gilbert, relating, to what occurred two or three weeks
anterior to the difficulty in which he was stabbed, and all that he said
in regard to a quarrel about a trunk, and the threats of Draper pre-
viously made, was incompetent, even though the State had laid a prop-
er foundation for the introduction of the dying declarations of the
deceased. * * *
It seems to be well established law that dying declarations are ad-
missible as to those facts and circumstances constituting the res gestae
of the homicide, but as to all other matters occurring anterior to the
killing,. and not immediately connected with it, they are inadmissible.
In 1 Green. Ev. § 156, it is said, "it is now well settled that dying dec-
larations are admissible as such, only in cases of homicide, when the
death of the deceased is the subject of the charge, and the circum-
stances of the death are the subject of the dying declaration." We
have not been able to find any case where such evidence has been given
a wider scope than is laid down in the above rule. In the case of Lei-
ber v. Commonwealth, 9 Bush (Ky.) 11, it was held that dying declara-
tions should be restricted to the act of killing, and the circumstances
immediately attending it, and forming a part of the res gestae. In
that case the declarations given in evidence, not only conduced to iden-
tify the defendant as the perpetrator of the homicide, and the circum-
stance? immediately attending it, but it also purported to disclose for-
mer and distinct transactions, from which the jury might have infer-
red malice on the part of the defendant. Hardin, Justice, in deliver-
ing the opinion, says : "the court erred in admitting a part of the dying
statements, however competent the evidence may have been, and for
that cause, if for no other, the judgment should be reversed." In the
case of Mose (a slave) v. State, 35 Ala. 421, the defendant was charg-
47S HEARSAY (Ch. 3
ed with killing one Martin Oaks, an overseer. On the trial, the dying
declarations of .the deceased were admitted giving the circumstances
attending to the homicide, in giving which, deceased stated "that Moses,
the defendant, was the only slave on the plantation at enmity with
him," and that "Moses was a runaway." In the opinion of the court
it is said that the declarations by deceased, that Moses was the only
slave on the place at enmity with him, and that Moses was a run-
away, do not fall within the principle admitting dying declarations,
and the court in admitting them erred. The enmity of the defend-
ant towards deceased, of which previous threats and previous attempts
to commit the same act would have been, evidence in the case, pointing
to the accused as the guilty party, was a fact extrinsic to the circum-
stances attending the homicide. The judgment was reversed for that
error; so also in the following cases: Johnson v. State, 17 Ala. 618;
Ben v. State, 37 Ala. 103.
In the case of State v. Shelton, 47 N. C. 360, 64 Am. Dec. 587, the
deceased, in making his dying declarations, stated that two or three
hours before the encounter in which he received the blow, which caus-
ed his death, he had had a difficulty and quarrel with the defendant.
This latter declaration was admitted, and for the error in admitting it,
the judgment was reversed and a new trial awarded, the court holding
that dying declarations must be restricted to the act of killing, and the
circumstances immediately attending the act and forming a part of the
res gestae. In the case of Nelson v. State, 7 Humph. (Tenn.) 542, the
defendant was indicted and convicted for the murder of one Sellers.
On the trial the following dying declarations of deceased were ad-
mitted : "That Nelson, the prisoner, had stabbed him; that Nelson
had tried to kill him two or three times before." It was held that dying
declarations were admissible from the necessity of the case to identify
the prisoner and establish the circumstances of the res gestae or direct
transaction from which death results. When they relate to former and
distinct transactions, they do not come within the principle of neces-
sity. In the case of Hackett v. People, 54 Barb. (N. Y.) 370, the dying
declarations of deceased were admitted. They contained not only an
account of the transaction which terminated in the death of the deceas-
ed, but also other facts, and among them the statement "that Hackett,
the defendant, had often threatened to kill him." The prisoner's coun-
sel objected to reading the whole statement, admitting that a portion
might be read. This objection was overruled. Ingraham, Justice, de-
livering the opinion of the court, in speaking of that portion of the
claration in which deceased stated "that Hackett had often threaten-
ed to kill him," observed that "this statement was clearly open to the
objection thai it did not relate to the transaction from which the death
resulted," and adds that its effect on the jury may have been very in-
jurious. "The prisoner was on trial for his life, and the whole ques-
tion, whether he could be convicted of murder in the first degree, was
to be decided by proof of prior ill-will, or prior cause for a premedi-
Sec. 2) RECOGNIZED EXCEPTIONS 470
tated act. It seems to me to be a dangerous precedent to extend the
rule which admits dying declarations, made under conviction that the
party must die, beyond the immediate transactions which led to his
death. The evidence referred to should not have been received and
the judgment should be reversed." The limits prescribed to the ad-
missibility of dying declarations in the rule as laid down by Greenleaf ,
supra, and as illustrated in the adjudicated cases above alluded to, in
which the rule has been practically applied, necessarily lead to a rever-
sal of the judgment in this case, on the ground that only so much of
Gilbert's dying declarations as related to the killing and the facts and
circumstances attending it, and constituting a part of the res gestae,
should have been allowed to go to the jury. The cause in other respects
seems to have been well tried. Judgment reversed and cause remand-
ed, in which the other judges concur.
Reversed. 54
JONES v. STATE.
(Supreme Court of Mississippi, 1901. 79 Miss. 309, 30 South. 759.)
Jones, the appellant, was indicted, tried, and convicted of the mur-
der of one Ella Bradley, by shooting her, and was sentenced to be
hanged. From the judgment and sentence he appealed to the Supreme
Court.
The principal error assigned was that the court erred in admitting
the dying declaration of Ella Bradley. The facts as to the shooting
are as follows: Deceased was in a room with several other persons,
sitting near the fireplace, with her side or back to a window. It was
night, and the room was lighted, but it was dark outside. The window
shade was down, being slightly raised at one corner, so as to expose
the lower part of the window pane of glass in the bottom row of the
lower sash. Some one on the outside of the house shot deceased
through this window, the bullet striking her in the back part of the
right side. She died in a short while after she was shot. I. L. Gordin,
a witness for the state, testified that he was at the house of Ella Brad-
ley a short time before her death, and after she knew she was going
to die he asked her who she thought shot her, and she said it was Wash
Tones ; that Wash had told her that he was coming to her house that
night, and if he saw any other negro man talking to her he would
kill her, and no one would know it. This testimony was objected to
by defendant, the objection was overruled, and defendant excepted.
' Whitfield, C. J. 55 It was fatal error to admit in evidence the
testimony of Gordin as to the dying declaration of Ella Bradley. It is
54 Accord: State v. McKnigbt, 119 Iowa, 79. 93 N. W. C3 (1903); State v.
O'Shea. CO Kan. 772, 57 Pac. 970 (1S99) ; People v. Smith, 172 N. Y. 210, G4
N. E. S14 (1902).
6 5 Part of opinion omitted.
ISO HEARSAY (Ch. 3
manifest that she did not see, and could not possibly have seen, who
shot her, and that she said appellant shot her simply because he had
threatened to shoot her. She was therefore clearly not testifying as
a fact that Jones shot her, but was merely stating her opinion that he
must have shot her, since he had told her he was going to do so.
This was not competent. All the evidence in the case as to the situa-
tion of the parties in the room and as to the manner of the killing
makes it too clear for disputation that she could not have seen the
person who shot her. The killing was an atrocious assassination, and
the chief point of inquiry was, who did the killing? There is no
question as to the crime being murder. The only question was whether
Wash Jones was the party who committed the murder. Identity being
the sole issue involved, the tremendous importance of the dying decla-
ration testified to by Gordin becomes at once manifest. This evi-
dence is too vital to say that the error is not reversible. The attorney
general, with that admirable candor and fairness which has ever char-
acterized his arguments to this court, recognizing it to be his duty as
well to see that the innocent go free as that the guilty are punished,
concedes that the admission of this testimony was error, endeavoring
to show the error not to be a reversible one. But we think it is. Nor
is the error cured by instructions 10 and 12. The twelfth instruction
told the jury that, if they believed that the alleged dying declaration
was the statement of an opinion, they should wholly disregard it.
But it was for the court, not the jury, to say whether it was the state-
ment of an opinion. Whether it was the statement of an opinion or
of fact was a question as to its admissibility, — a question for the court
alone, the determination of which could not be left to the jury. Lips-
comb v. State, 75 Miss., at pages 600-602, 23 South., at pages 221, 222;
McDaniel's Case, 8 Smedes & M. 401, 47 Am. Dec. 93; Chism's Case,
70 Miss. 754, 12 South. 855. * * *
Reversed.
CARVER v. UNITED STATES.
(Supreme Court of the United States, 1897. 164 U. S. C94, 17 Sup. Ct. 228,
41 L. Ed. G02.)
This was a writ of error to review the conviction of the plaintiff in
error for the murder of one Anna Maledon at Muskogee, in the Creek
Nation of the Indian Territory. The conviction was a second one for
the same offense, the first having been set aside by this court upon
the ground that improper evidence had been received of an alleged
dying declaration. 160 U. S. 553, 16 Sup. Ct. 388, 40 L. Ed. 532.™
Mr. Justice BROWN, * * * There was also error in refusing to
permit the defendant to prove by certain witnesses that the deceased,
ment condensed and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 481
Anna Maledon, made statements to them in apparent contradiction
to her dying declaration, and tending to show that defendant did not
shoot her intentionally. Whether these statements were admissible
as dying declarations 57 or not is immaterial, since we think they were
admissible as tending to impeach the declaration of the deceased,
which had already been admitted. A dying declaration by no means
imports absolute verity. The history of criminal trials is replete with
instances where witnesses, even in the agonies of death, have, through
malice, misapprehension, or weakness of mind, made declarations that
were inconsistent with the actual facts ; and it would be a great hard-
ship to the defendant, who is deprived of the benefit of a cross-ex-
amination, to hold that he could not explain them. Dying declarations
are a marked exception to the general rule that hearsay testimony is
not admissible, and are received from the necessities of the case, and
to prevent an entire failure of justice, as it frequently happens that no
other witnesses to the homicide are present. They may, however, be
inadmissible by reason of the extreme youth of the declarant (Rex
v. Pike, 3 Car. & P. 598), or by reason of any other fact which would
make him incompetent as an ordinary witness. They are only re-
ceived when the court is satisfied that the witness was fully aware of
the fact that his recovery was impossible, and in this particular the
requirement of the law is very stringent. They may be contradicted
in the same manner as other testimony, and may be discredited by
proof that the character of the deceased was bad, or that he did not
believe in a future state of rewards or punishment. State v. Elliott,. 45
Iowa, 486; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762; Goodall
v. State, 1 Or. 333, 80 Am. Dec. 396; Tracy v. People, 97 111. 101;
Hill v. State, 64 Miss. 431, 1 South. 494.
It is true that, in respect to other witnesses, a foundation must be
laid for evidence of contradictory statements by asking the witness
whether he has made such statements; and we have held that, where
the testimony of a deceased witness given upon a former trial was put
in evidence, proof of the death of such witness subsequent to his for-
mer examination will not dispense with this necessity. Mattox v. U.
S., 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409. That case, however,
was put upon the ground that the witness had once been examined
and cross-examined upon a former trial. We are not inclined to ex-
tend it to the case of a dying declaration, where the defendant has no
opportunity by cross-examination to show that by reason of mental or
physical weakness, or actual hostility felt towards him, the deceased
may have been mistaken. Considering the friendly relations which had
57 That dying declarations are admissible on behalf of the defendant, see
Green v. State, 89 Miss. 331, 42 South. 797 (1907) ; People v. Southern, 120
Cal. 645, 53 Pac. 214 (189S) ; Mattox v. United States, 146 U. S. 140, 13 Sup.
Ct. 50, 36 L. Ed. 917 (1892) semble ; Tittle v. State, 52 L. R. A. (N. S.) 910
(1914), annotated.
Hint.Ev— 31
482 HEARSAY (Ch.
existed between the defendant and the deceased for a number of years,
their apparent attachment for each other, and the alcoholic frenzy
under which defendant was apparently laboring at the time, the shoot-
ing may possibly not have been with deliberate intent to take the life
of the deceased, notwithstanding the threats made by the defendant
earlier in the evening. In nearly all the cases in which the question
has arisen, evidence of other statements by the deceased inconsistent
with his dying declarations has been received. People v. Lawrence, 21
Cal. 368 (an opinion by Chief Justice Field, now of this court) ; State
v. Blackburn, SO N. C. 474; McPherson v. State, 9 Yerg. (Tenn.) 279;
Hurd v. People, 25 Mich. 405 ; Battle v. State, 74 Ga. 101 ; Felder v.
Mate, 23 Tex. App. 447, 5 S. W. 145, 59 Am. Rep. 777 '; Moore v.
State, 12 Ala. 764, 46 Am. Dec. 276.
Our attention has been called to but one case to the contrary, viz.
Wroe v. State, 20 Ohio St. 460, cited with apparent approval in Mat-
tox Case. But we think, as applied to dying declarations, it is contra-
ry to the weight of authority.
As these declarations are necessarily ex parte, we think the defend-
ant is entitled to the benefit of any advantage he may have lost by
the want of an opportunity for cross-examination. Rex v. Ashton, 2
Lewin, Crown Cas. 147.
The disposition we have made of these assignments renders it un-
necessary to consider the others. The judgment of the court must be
reversed, the conviction set aside, and a new trial ordered.
Mr. Justice Brewer and Mr. Justice Peckham concurred in revers-
ing upon the sixth assignment only. 08
III. Admissions ° 9
(A) In General
DILLON v. CRAWLY.
(Court of King's Bench, 1702. Holt, 290.)
Error of a judgment upon a demurrer to evidence in C. B. the wit-
ness to the sealing and delivery of a deed, being subpoenaed, did not
appear ; but to prove it the party's deed, they proved an indorsement
de by him thereupon three years after; reciting a proviso within,
that if he paid such a sum the deed should be void, and acknowledging
Lacfe of religions belief may nlso be shown to discredit a dying declara-
tion. Hill v. State, *;i Miss. 431, 1 South. 404 (1S77).
»• Greenleaf on Evidence, § 1C0: "Under the head of exception to the rule
rejecting hearsay evidence, 11 has been usual to treat of admissions and con-
Ions by tin' party, considering them as declarations agalnsl his Interest,
and therefore probably true But In regard to many admissions, and espe-
mplled from conduct and assumed character, it cannot be sup-
SeC. 2) RECOGNIZED EXCEPTIONS 4S3
that the said sum was not paid ; and a fine was levied of the very lands
mentioned in the deed to Crawly, and by the indorsement he expressly
own'd it to be his deed ; and upon this the deed was read. And now
posed that the party, at the time of the principal declaration or act done, be-
lieved himself to be speaking or acting against his own interest; but often
the contrary. Such evidence seems, therefore, more properly admissible as
a substitute for the ordinary and legal proof, either in virtue of the direct
consent and waiver of the party, as in the case of explicit and solemn admis-
sions ; or on grounds of public policy and convenience, as in the case of those
implied from assumed character, acquiescence, or conduct."
Wigmore on Evidence, § 1049: "The use of the admissions is on principle
not obnoxious to the Hearsay rule; because that rule affects such statements
only as are offered for their independent assertive value after the manner of
ordinary testimony, while admissions are receivable primarily because ofj
their inconsistency with the party's present claim and irrespective of their I
credit as assertions; the offeror of the admissions, in other words, does not
necessarily predicate their truth, but uses them merely to overthrow a con-
trary proposition now asserted. Just as the Hearsay rule is not applicable
to the use of a witness' prior self-contradictions, so it is not applicable to
the use of an opponent's admissions. Nevertheless, because most statements
used as admissions do happen to state facts against interest, judges have been
found who, misled by this casual feature, have treated admissions in general
as obnoxious to the Hearsay rule, and therefore as entering under an excep-
tion to that rule. That this is a mere local error of exposition and in no
sense represents a rule anywhere obtaining may be seen from two circum-
stances: First, that the limitation of the Hearsay exception to facts against
pecuniary or proprietary interest has never been attempted to be applied to
admissions; secondly, that the further requirement of the Hearsay excep-
tion, namely, that the declarant must first be accounted for as deceased, ab-
sent from the jurisdiction, or othenvise unavailable, has never been enforced
for the use of a party's admissions."
Redfield, J., in Stevens v. Whitcomb, 16 Vt. 121 (1844): "* • * If the
witness be the real party to the suit, he cannot be compelled to testify, and
by consequence his declarations and admissions against his interest become
evidence against the party standing in his right." See same suggestion in
The King v. Inhabitants of Hardwick, 11 East, 578 (1809) post, p. 504.
"An English Evidence Code," 20 Solicitor's Journal, 894 (1876): '"An ad-
mission is a statement, oral or written, suggesting any inference as to any
fact in issue or relevant fact unfavorable to the conclusion contended for by
the person by whom or on whose behalf the statement is made;' to which is
added, 'Every admission is (subject to the rules hereinafter stated) a relevant
fact as against the person to whom it is unfavorable.' In this definition Mr.
Stephen appears anxious to recognize the two elements implied in the com-
mon as well as in the technical use of the word. These are, first, that an ad-
mission is a statement made by the person against whom it is offered in evi-
dence, or by some one for whose statements he is, by virtue of some relation-
ship between them, answerable; and, second, that it is a statement of some-
thing injurious to the case of that person. The definition recognizes these
two elements, but it fails to represent correctly the relation between them.
For all evidence which is offered by the one party against the other is. or
is at least intended and supposed to be, unfavorable to the party against
whom it is offered. But what is really characteristic of an admission is that,
without calling him, the one party makes the other, or some one for whose
statements he is answerable, or whose interest is identical with his own,
a witness for him. The rules of evidence are for the protection of each party
against the reception of improper evidence against him. If his adversary
chose to make him a witness in his own favour there would be no reason on
his part for objecting; but naturally his adversary does not do so. He will,
however, as naturally object, if possible, to be made a witness against him-
self without being called ; and what enables his adversary to do so in spite
of his objection is that he has himself furnished the weapon with which he is
•vttaeked. What is characteristic, therefore, of an admission is not that o\<*-
4S4 HEARSAY (Ch. 3
it was objected that this was not good evidence, because not the best
the nature of the thing could bear; but only circumstantial; which
never ought to be admitted, where better may be had ex natura rei;
because circumstances are fallible and doubtful ; and it is upon this
reason that a copy of a record is good, because one cannot have the
record itself ; but a copy of a copy will not do. Upon non est factum
to a bond, one of the witnesses being subpoenaed did not appear; and
it was offered to prove that he owned it his bond ; but denied.
Holt, C. J. Can there be better 60 evidence of a deed than to own it,
and recite it under his hand and seal? Et per totam Cur' Jud' affirm'. 61
HARINGTON et al. v. MACMORRIS.
(Court of Common Pleas, 1813. 5 Taunt. 228.)
This was an action for money paid, money had and received, money
lent, and upon an account stated : the defendant gave notice of set-off,
paid £67. 12s. into court, and, under a judge's order, delivered a par-
ticular of set-off in the following terms : "Paid R. Dashwood, Esq.,
under a foreign attachment against the present defendant, founded
on a plaint or suit in the mayor's court of London, brought by the said
R. Dashwood against the plaintiffs in this cause, being the amount, or
part of the amount, of a debt at that time owing by the present defend-
ant to the present plaintiffs in this cause, £112. 10s. To costs paid by
the above defendant on such foreign attachment £3. 14s. 4d." Upon
the trial of this cause at Guildhall, at the sittings after Trinity term,
1813, before Mansfield, C. J., it appeared that the action was brought
to recover a sum of money which had been lent in India, in pagodas.
Lens, Serjt., objected that the averment that the defendant was in-
debted for "lawful money of Great Britain" lent to him was not sup-
ported by this evidence. The plaintiffs gave no other evidence of the
debt than the defendant's own particular of set-off, which, they con-
tended admitted a debt of £112. 10s. to be due from himself to the
plaintiffs over and above the £67. 10s. which the defendant had paid
into court. The plaintiffs had delivered a particular of their demand,
menf which it has In common with all the evidence tendered hy his adversary,
but that which is peculiar to it, namely, that it is furnished by himself. The
latter element should, therefore, occupy the first place; the former should
occupy the second place, or rather, indeed, does not require to be noticed at
alL We should therefore surest (hat an admission would be more appro-
priately defined (if, indeed, any definition is needed) as 'a statement, oral or
written, as to a fact in issue or relevant fact made by a party to an action.
or by a person deemed to be entitled to make such statement on his behalf.' "
«o In an anonymous case, 7 Modern. 40 (170.'J), the same judge observed:
"Confession is the worst sort of evidence, that is, if there be no proof of a
transaction or dealing, or, at least, a probability of dealing between them;
iere then- was, the one being a sailor, and the other a captain of a ship."
•i Compare Call v. Dunning, 4 Bast, 68 (1803), ante, p. 219.
Sec. 2) RECOGNIZED EXCEPTIONS 485
by which they claimed only £161. 15s. in the whole, of which £67. 10s.
being paid into court, only £94. 5s. by their own account, remained
due to them. The defendant failing, in the opinion of the jury, to
substantiate the validity of the foreign attachment under which he
had paid the money to Dashwood, there being an insinuation that it
was collusive, and he having neither proved that the debt originated
within the jurisdiction of the marshall's court, nor that the parties
resided within it, nor that the defendant in that cause had been actual-
ly summoned before the attachment issued, the plaintiffs had a verdict
for £112. 10s., subject to the objections, which the chief justice re-
served.
Lens, Serjt, n6w moved to set aside the verdict, and enter a nonsuit,
in case the court should think that the count for money lent did not
properly describe the coin, or that the foreign attachment could be sup-
ported, for that the plaintiff could not avail himself of the defendant's
particular of set-off in evidence.
Gibbs, J. Suppose that this allusion to the debt had been contained
in a plea, instead of a notice of set-off; I wish to know whether be-
fore a defendant came to make use of a plea, on which the defendant
himself did not rely, nor want to resort to it for his defense, relying
only on the general issue, a plaintiff could have made use of the de-
fendant's plea, in order to extract such parts of it as made for the
plaintiff, and to use them against the defendant? I think the plaintiff
cannot carry the use of the particular of set-off, which he calls upon
the defendant to deliver under the notice of set-off, further than he
can carry the notice of set-off itself. As to the foreign money, the doc-
trine contended for has been exploded these 30 years.
The Court granted a rule nisi upon the other grounds. 62
Mansfield, C. J. Now that the matter comes to be talked of and
understood, though the objection strongly struck me at the trial, and
puzzled me at the moment, there seems to be no difficulty in it at all.
Since the statute of Anne, the defendant may plead a set-off of a
mutual debt; or, instead of so pleading, it was considered convenient
for some purpose or other, that he might give notice of set-off. This
notice then is equivalent to a plea, and it is usually given in the general
terms of money paid, money had and received, &c. The party receiving
this notice of set-off may be much at a loss to know what it means.
Money had and received is one of the widest expressions in the law :
it may mean fees received by the intruder into an office, or many other
things equally dissimilar to the real transaction ; and, therefore, it is
the modern practice to require, by a judge's authority, an explanation
called a particular. When that is given, it is exactly the same as if
it had been originally given in the notice of set-off; if so, it is even'
day's practice, that the defendant's language in one plea cannot be
used to disprove another plea, as in the familiar instance I have given
82 Statement condensed and opinion of Dallas, J., omitted.
4S6 HEARSAY (Ch. 3
of trespass, and not guilty and a justification pleaded, where the justi-
fication would certainly, if admissible, prove the act, in the case the
reason of the justification fails. Therefore the particulars of the set-
off must be incorporated with the notice of set-off, and cannot be given
in evidence to prove the plaintiff's demand on the issue of non as-
sumpsit.
Heath, J., concurred. It is a common case to plead not guilty, and
a justification of the act which the defendant has in his first plea de-
nied. The particular of set-off is the same thing as the notice of set-
off, and is engrafted with it ; the notice of set-off is equivalent to a plea
of set-off, and cannot therefore be given in evidence for this purpose.
Rule absolute to enter a nonsuit. 03
BOILEAU v. RUTLIN.
(Court of Exchequer, 1S48. 2 Exch. 665.)
Parke, P. 6 * This case was argued before my Brothers Alderson,
Rolfe, and Piatt, and myself, on two days in the course of the sittings
in and after Hilary Term, on showing cause against a rule nisi to enter
a verdict for the plaintiff, pursuant to leave reserved by Lord Den-
man. The action was for the use and occupation of the plaintiff's
house for four years and a quarter, ending at Christmas, 1846. The
defendant's answer -was, that he had been let into possession on an
agreement to purchase the plaintiff's leasehold interest for £630., and
continued in such possession for some time. The defendant paid
into court a sum sufficient to cover the compensation for the occu-
pation from the end of that time till Christmas; and the question
was, whether he was bound to pay the remainder. In order to dis-
charge himself from the rent for this period, it was necessary for
him to prove that there was an agreement to purchase, under which
he entered. He had given notice to produce the agreement ; and,
though the plaintiff offered to produce it, he did not call for it, but
he put in, as evidence of the agreement, the plaintiff's bill in Chan-
cery, which had been filed to compel the defendant to perform it,
and which of course stated the terms of it. The defendant had an-
swered, and the cause had proceeded to a hearing. It was objected,
that the statements in the bill were inadmissible as evidence against
the plaintiff. Lord Denman received the bill as some evidence of
the contract, reserving the point; and the question in the case is,
'■■''• But nnder e e of the modern codes, which require defenses to he con-
sistent, it thai an express admission or assertion in one defense may
destroy or qualify Hie effect of a general denial. Bartwell v. Page, 14 Wis.
49 (1861): Derby v. Gallup, 5 Minn. L19 (Oil. 85 [1861]).
Thai the failure to plead a Pact may be treated as an admission, see
Mathews v. Livingston, 86 Conn. 268, 85 Ail. 529, Ann. Cas. 193 IA, 195 (1912).
'i' Statement and pari of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTION'S 4S7
whether the bill ought to have been received for that purpose. It
was not doubted that, if it was to be received, it was primary evi-
dence, on the principle of the case of Slatterie v. Pooley, 6 M. & W.
664.
It is certain that a bill in Chancery is no evidence against the party
in whose name it is filed, unless his privity to it is shown. That was
decided in Woollett v. Roberts, 1 Ch. Ca. 64, though no such decision
was wanted. The proceedings on such a bill, after answer, tend to
diminish the presumption that it might have been filed by a stranger,
and appear to have been held sufficient to establish the privity of
the party in whose name it was filed : Snow d. Lord Crawley v. Phil-
lips, 1 Sid. 220. When that privity is established, there is no doubt
that the bill is admissible to show the fact that such a suit was insti-
tuted, and what the subject of it was; but the question is, whether the
statements in it are any evidence against the plaintiff of their truth,
on the footing of an admission. Upon this point the authorities are
conflicting.
In the case referred to in Siderfin, it would seem that the bill, which
was filed by the defendant to be relieved from a bond as simoniacal,
was used against him to prove that he was simoniacally presented ; but
it does not very distinctly so appear.
In Buller's Nisi Prius, page 236, a bill in Chancery is said to be "evi-
dence against the complainant, for the allegations of every man's bill
shall be supposed to be true ; and therefore, it amounts to a confession
and admission of the truth of any fact ; and if the counsel have mingled
in it any fact that is not true, the party may have his action." And,
after referring to the conflicting authority in Fitzgibbon, 196, the
author of that Treatise on the Law of Nisi Prius lays it down as a
clear proposition, that where the matter is stated by the bill as a fact
on which the plaintiff founds his claim for relief, it will be admitted
in evidence, and will amount to proof of a confession.
These are the authorities in favour of the defendant. The recent
case of Lord Trimlestown v. Kemmis, 9 C. & F. 749, which was also
mentioned, is not one in his favour, for the bill was there admitted to
show what the subject of the suit was, and to explain a subsequent
agreement for a settlement between the parties.
On the other hand, in the above-mentioned case of Lord Ferrers v.
Shirley, Fitz. 195, a bill preferred by the defendant, stating the ex-
istence of a deed at that time, was objected to as proof of that fact,
on the ground that it was no more than the surmise of counsel for
the better discovery of the title ; and the Court would not suffer it to
be read. And Lord Kenyon, in Doe d. Bowerman v. Sybourn, 7 T. R.
2, where the distinction was insisted upon between facts stated by
way of inducement, and those whereon the plaintiff founds his claim
for relief, rejected that distinction, and pronounced his judgment, in
which the Court acquiesced, that a bill in Chancery is never admitted
488 HEARSAY (Ch. 3
farther than to show that such a bill did exist, and that certain facts
were in issue between the parties, in order to let in the answer or dep-
ositions. * * *
These authorities, therefore, afford no reason for doubting the pro-
priety of the decisions above referred to as to bills in equity. It
would seem that those, as well as pleadings at common law, are not to
be treated as positive allegations of the truth of the facts therein, for
all purposes, but only as statements of the case of the party, to be
admitted or denied by the opposite side, and if denied to be proved, and
ultimately submitted for judicial decision.
The facts actually decided by an issue in any suit cannot be again
litigated between the same parties, and are evidence between them, and
that conclusive, upon a different principle, and for the purpose of
terminating litigation ; and so are the material facts alleged by one
party, which are directly admitted by the opposite party, or indirectly
admitted by taking a traverse on some other facts, but only if the
traverse is found against the party making it. But the statements of
a party in a declaration or plea, though, for the purposes of the
cause, he is bound 66 by those that are material, and the ' evidence
must be confined to them upon an issue, ought not, it should seem, to
be treated as confessions of the truth of the facts stated.
Many cases were suggested in the argument before us, of the in-
conveniences and absurdities which would follow from their admis-
sion as evidence in other suits, of the truth of the facts stated. There
is, however, we believe, no direct authority on this point. The dic-
tum of Lord Chief Justice Tindal, in The Fishmonger's Company
v. Robinson, 5 M. & G. 192, which was referred to in argument, seems
es Powers, J., in Brown v. Aitken (Vt.) 99 Atl. 265 (1916): "B. F. Combs
was called as a witness by the plaintiff, and testified, without objection, that
in 1911 he acted as agent for the defendants, and as such agent sold the
plaintiff the premises in question, and that the plaintiff paid him thereon two
payments, amounting to $450. In cross-examination, the defendants sought
to ask the witness about the financial condition of the defendants and the
scope and limitations of his agency. This was excluded, and the defendants
excepted. Here was no error. The whole subject-matter of the witness'
agency w r as outside the issue, so far as his being agent for the defendants in
making the sale was determined by the first special verdict. Moreover, if
anything regarding that agency in its scope or effect was open to litigation in
the second trial, it was eliminated by the conduct of counsel by expressly
and impliedly limiting the issues as hereinbefore shown. Cases are tried
in court upon the issues Joined by the parties, and evidence is to be received
only as it bears upon those issues. Probate Court v. Enright, 70 Vt. 416, 65
Atl. 530 (1907). These issues are usually such as are made by the pleadings;
but counsel may, by conduct or agreement, limit them to one or more of those.
and such limitation, unless otherwise ordered by the court, will hind them
and their clients throughout the trial. They amount to binding waivers of
all • not Included. National Life Ass'n v. Speer, 111 Ark. 173. 163 S. W.
1188 (1914); Leonard v. New England Mut L. Ins. Co., 22 R. I. 519, 4S Atl.
(1901); Motion v. Oregon Short Line R. Co., 33 Mont. 45, 81 Pac. 737
(1905). They are not, In character and effect, unlike an admission of fact,
which is binding, unless by leave of court withdrawn. United States for Use
of Ellas Lyman Coal Co. v. United States Fire & Guaranty Co., 83 vt. 278,
78 Atl. 280 (1910); Clark v. Tudhope, 89 vt. 246, 96 Atl. 489 (1915)."
Sec. 2) RECOGNIZED EXCEPTIONS 489
to be considered as amounting to a decision on this point ; but it
was unnecessary for the determination of that case. It is enough,
however, to say, that as to bills of equity, the weight of authority is
clearly against their admissibility, for the only purpose for which
they were material in the present case; and we are bound by that
authority.
It becomes unnecessary to consider the other point argued before
us. The rule must be absolute to enter a verdict for the larger sum,
as the defendant cannot be allowed anything for repairs.
Rule absolute. 68
«6 Earl, C, in Cook v. Barr. 44 N. Y. 156 (1870): "When a party to a civil
action has made admissions of facts material to the issue in the action, it
is always competent for the adverse party to give them in evidence, and
it matters not whether the admissions were In writing or by parol, nor
when nor to whom they were made. Admissions do not furnish conclusive
evidence of the facts admitted, unless they were made under such circum-
stances as to constitute an estoppel, or were made in the pleadings in an ac-
tion, when they are conclusive in that action. They may be contained in a
letter addressed to the opposite party, or to a third person, and in either case
are entitled to equal weight and credit. They are received in evidence, be-
cause of the great probability that a party would not admit or state anything
against himself or his own interest unless it were true. And I am unable
to see why the rule does not apply to admissions contained in the pleadings
in an action under our system of practice, which requires the facts to be al-
leged truly in the pleadings. It must first be shown, however, by the signature
of the party, or otherwise, that the facts were inserted with his knowledge,
or under his direction, and with his sanction. Here the answer, which is
claimed to show the admissions, contains the assertion of facts which, from
the nature of the case, if true, must have been within the knowledge of the
defendant, and it is verified by the defendant. I can conceive of no principle
or reason for holding that admissions made under such circumstances are
not evidence against the defendant. It is said in Phillips on Evidence (vol.
1 [Van Cott's Ed., 1849] p. 366), that 'a person's answer in chancery is evi-
dence against him, by way of admission, in favor of a person who was no
party to the chancery suit ; for the statement, being upon oath, cannot be con-
sidered conventional merely.' "
And so in Robbins v. Butler, 24 111. 387 (1S60), verified answer in chancery.
In a number of the modern cases the courts have treated ordinary pleadings
as admissions, on the assumption that the statements contained in them
were made with the knowledge and consent of the party on whose behalf they
were filed. Lindner v. St. Paul Fire & Marine Ins. Co., 93 Wis. 526, 67 N. W.
1125 (1S96) ; Anderson v. McPike, 86 Mo. 293 (1SS5).
Where a pleading can be treated as the statement or assertion of the party,
it will not be excluded because it purports to be made on information and
belief only. Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69. 29 L. Ed. 393 (1SS5).
As to the question of personal knowledge, see Shaddock v. Town of Clifton.
22 Wis. 114, 94 Am. Dec. 588 (1867), post, p. 509.
A plea of guilty to a criminal charge may be received as an admission
in a civil suit based on the same matter. Corwin v. Walton. 18 Mo. 71, 59
Am. Dec. 2S5 (1S53). For the use of a plea of guilty as an admission, after a
plea of not guilty has been substituted. See Heim v. United States, 46 Wash.
Law Rep. 242 (191S), post, p. 552.
The deposition of the adverse party, though not competent as a deposition,
may be used as an admission. Faunce v. Gray (Mass.) 21 Pick. 243 (1838).
490 HEARSAY (Ch. 3
SENAT v. PORTER.
(Court of King's Bench, 1797. 7 Term R. 158.)
On the trial of this action on a policy of insurance at the Guild-hall
Sittings before Lord Kenyon a question arose respecting the admis-
sibility in evidence of the captain's protest. The facts were these ;
when Vaux, the broker, applied to the defendant informing him of the
loss and demanding payment, he produced the different papers relating
to the subject, and among the rest the protest signed by the captain ;
the defendant told him he had looked into the papers, but that "there
was a point in the case," and he refused payment. On the part of the
defendant it was contended that the protest was made evidence in this
case by the plaintiff as a paper delivered by his agent to the defendant,
containing an account of the loss on which he rested his claim ; and
therefore that it amounted to a declaration made by the plaintiff to
the defendant of the facts on which he required payment. Lord Ken-
yon was clearly of opinion that the protest was not admissible in evi-
dence, and the plaintiff obtained a verdict.
On a former day in this term the Court reluctantly granted a rule
calling on the plaintiff to shew cause why there should not be a new
trial, on the ground that the protest ought to have been received in evi-
dence.
Lord Kenyon, C. J. Great complaints have been made in the com-
mercial world, and not without reason, of the enormous expence at-
tending the trials of insurance causes ; it therefore becomes the Court
not to suffer that expence to be encreased by unnecessary motions ;
and it was with great reluctance that I was induced to consent to grant
the rule to shew cause in this case. I have considered and reconsider-
ed this question, and I cannot figure to my imagination any arguable
point in it. That the protest per se cannot be evidence is admitted.
Then what facts were proved to make it evidence in this case? why,
that it was in Vaux's hands, and that he shewed it to the defendant
on an application for payment. But if that circumstance would ren-
der the protest evidence, it might equally be argued that the allega-
tions in a plaintiff's bill in equity might be read against him merely be-
cause the bill with its contents must have been shewn to the defend-
ant ; but that cannot be pretended. If the plaintiff had availed himself
of any part of this paper to prove his case, the defendant would have
been entitled to read the whole of it: but the mere circumstance of
Vaux's shewing the protest to the defendant when he applied to him
for payment surely cannot render the protest evidence in t his case.
LOSE, J. Tl'is protest was merely produced to the defendant as
a paper containing the account of the loss given by the captain: if the
captain had been called as a witness and had given a different account
Sec. 2) RECOGNIZED EXCEPTIONS 491
of the loss from that contained in the protest, the protest might have
been produced to shew that he was not worthy of credit ; but it could
not be read on behalf of the defendant to prove any fact in the case.
Lawrence, J. It seems to me that the protest does not become
evidence on account of it's having been voluntarily shewn by Vaux to
the defendant any more than it would if the plaintiff had been com-
pelled by a Judge's summons to shew it to the defendant. It was not
necessary for the plaintiff to shew this protest to the defendant before
he brought his action; but the defendant might have obtained a
Tudge's summons to compel him to permit the defendant to inspect
the paper; instead of this Vaux, the plaintiff's agent, who wished to
act candidly, voluntarily shewed this as well as the other papers to the
defendant : but that does not amount to an admission of the facts con-
tained in the paper.
Rule discharged. 67
COMMONWEALTH v. KENNEY.
(Supreme Judicial Court of Massachusetts, 1S47. 12 Mete. 235, 46 Am. Dec.
672.)
Shaw, C. J. 68 The defendant was indicted for stealing money and
a bag, the property of Barzillai Russell, from the person of said Rus-
sell. The averment of the fact of stealing, and that the money was
the property of Russell, were material averments. Russell was not
called as a witness, doubtless because he could not be found. But evi-
dence was offered to show that declarations were made at the watch
house, by Russell, in the presence and hearing of the defendant, in re-
gard to the theft, to which the defendant made no reply. This evi-
dence was objected to by the defendant, but was admitted by the court ;
and this is the ground of exception.
One of the specific grounds on which this exception was placed, we
think, is not tenable; namely, that the testimony of Russell was the
best evidence, and that the defendant was entitled to it, with the right
of cross-examination. The testimony of the person robbed is not
necessary evidence, nor are other kinds of evidence, if sufficient to
establish the necessary averments, secondary proof. The evidence,
ct But a party may use the statement of a third person in such a way as to
adopt it. Roe v. Rawlings, 7 East, 279 (1S06).
So the use of an affidavit or a deposition to establish a given fact may
amount to an adoption of the statements contained in it. Richards v. Morgan,
10 Jur. (N. S.) 559 (1864).
See, also, Mutual Ben. Life Ins. Co. v. Newton, 22 Wall. 32, 22 L. Ed. 793
(1874), semble, that where plaintiff, in furnishing proofs of death, submitted
a copy of the coroner's inquest, she might be treated as adopting it.
os Statement omitted.
492 HEARSAY (Ch. 3
if competent at all, was competent on the ground of admission by the
defendant, which, though often slight as to weight, is not secondary.
But on another ground, we take a different view of the admissibility
of the evidence, depending on the question whether the statements of
Russell in the hearing of the defendant, and the silence of the latter, do
amount to a tacit admission of the facts stated. It depends on this :
If a statement is made in the hearing of another, in regard to facts
affecting his rights, and he makes a reply, wholly or partially admitting
their truth, then the declaration and the reply are both admissible;
the reply, because it is the act of the party, who will not be presumed
to admit any thing affecting his own interest, or his own rights, unless
compelled to it by the force of truth ; and the declaration, because it
may give meaning and effect to the reply. In some cases, where a sim-
ilar declaration is made in one's hearing, and he makes no reply, it
may be a tacit admission of the facts. But this depends on two facts ;
first, whether he hears and understands the statement, and comprehends
its bearing ; and secondly, whether the truth of the facts embraced in
the statement is within his own knowledge, or not; whether he is in
such a situation that he is at liberty to make any reply ; and whether
the statement is made under such circumstances, and by such persons,
as naturally to call for a reply, if he did not intend to admit it. If
made in the course of any judicial hearing, he could not interfere and
deny the statement; it would be to charge the witness with perjury,
and alike inconsistent with decorum and the rules of law. So, if the
matter is of something not within his knowledge; if the statement is
made by a stranger, whom he is not called on to notice; or if he is
restrained by fear, by doubts of his rights, by a belief that his security
will be best promoted by his silence ; then no inference of assent can
be drawn from that silence. Perhaps it is within the province of the
judge, who must consider these preliminary questions in the first in-
stance, to decide ultimately upon them ; but in the present case he has
reported the facts, on which the competency of the evidence depend-
ed, and submitted it, as a question of law, to this court. The circum-
stances were such, that the court are of opinion that the declaration of
the party robbed, to which the defendant made no reply, ought not to
have been received as competent evidence of his admission, either of the
fact of stealing, or that the bag and money were the property of the
party alleged to be robbed. The declaration made by the officer, who
first brought the defendant to the watch house, he had certainly no oc-
casion to reply to. The subsequent statement, if made in the hearing
of the defendant, (of which we think there was evidence,) was made
whilst he was under arrest, and in the custody of persons having offi-
cial authority. They were made, by an excited, complaining party, to
such officers, who were just putting him into confinement. If not
strictly an official complaint to officers of the law, it was a proceeding
very similar to it, and he might well suppose that he had no right to
Sec. 2) RECOGNIZED EXCEPTIONS 493
say anything until regularly called upon to answer. We are therefore
of opinion that the verdict must be set aside and a
New trial granted. 69
WIGGINS et al. v. BURKHAM.
(Supreme Court of the United States, 1869. ' 10 Wall. 129, 19 L. Ed. 884.)
Mr. Justice Swayne stated the case, and delivered the opinion of
the court. 70
This is a writ of error to the Circuit Court of the United States for
the District of Indiana. The action is assumpsit. The declaration
contained only the common counts. The case, as shown by the bill
of exceptions, is as follows: Burkham, the plaintiff, lived in Chicago,
and the defendants at Hagerstown, in Indiana, distant from Chicago
about 220 miles by railroad. Upon the trial, evidence was given tend-
ing to prove that the plaintiff, on or about the 16th of May, 1866, sent
to the defendants by mail a written statement of the account sued upon,
in the nature of an account current, and that the defendants made
no objection to it till on or about the 28th of that month, when they
addressed a letter to the plaintiff by mail objecting to some items of
the account, but making no objection to others, to which latter items
it did not appear they ever objected until after the commencement of
the suit. * * *
The first instruction given by the court below, embraces two prop-
ositions :
1. That an account rendered, and not objected to within a reason-
able time, is to be regarded as admitted by the party charged to be
prima facie correct.
2. That if certain items in an account under such circumstances are
objected to within a reasonable time, and others not, the latter are to
be regarded as covered by such an admission.
We see nothing objectionable in these propositions. They are in ac-
cordance with all the leading authorities on the subject.
8 See elaborate discussion following and applying the rule of the principal
case. State ex rel. Tiffany v. Ellison, 266 Mo. 604, 182 S. W. 996, Ann. Cas.
191SC, 1 (1916).
Where a defendant did not testify on his own behalf on the preliminary
examination, such fact could not be used against him on the trial as an ad-
mission. Parrott v. State, 125 Tenn. 1, 139 S. W. 1056, 35 L. R. A. (N. S.) 1073,
Ann. Cas. 1913C, 239 (1911).
Compare Diggs v. United States, 242 U. S. 470, 37 Sup. Ct. 192. 61 L. Ed.
442, L. R. A. 1917F, 502 (1917), ante, p. 242, sanctioning an inference against
a defendant who failed to deny or explain certain matters in his testimony.
See, also, Connecticut Mut. Life Ins. Co. v. Smith, 117 Mo. 261, 22 S. W.
623. 38 Am. St. Rep. 656 (1893); Morris v. McClellan, 154 Ala. 639, 45 South.
641, 16 Ann. Cas. 305 (1908), ante, p. 241.
"o Part of opinion omitted.
494: HEARSAY (Ch. 3
The other exception also involves two propositions :
1. That the court refused to instruct the jury that, upon the hypoth-
esis stated, the account was objected to by the defendants within a
reasonable time.
2. That the court did instruct that what was a reasonable time was
not a question of law to be decided by the court, but a question of fact
for the jury.
Judge Story says : "Between merchants at home, an account which
has been presented, and no objection made thereto, after the lapse of
several posts, is treated, under ordinary circumstances, as being, by
acquiescence, a stated account."
The principle which lies at the foundation of evidence of this kind is,
that the silence of the party to whom the account is sent warrants the
inference of an admission of its correctness. This inference is more or
less strong according to the circumstances of the case. It may be re-
pelled by showing facts which are inconsistent with it, as that the
party was absent from home, suffering from illness, or expected short-
ly to see the other party, and intended, and preferred, to make his ob-
jections in person. Other circumstances of a like character may be
readily imagined. As regards merchants residing in different countries,
Judge Story says: "Several opportunities of writing must have oc-
curred."
We see no objection to the rule as he lays it down, in respect to
parties in the same country.
When the account is admitted in evidence as a stated one, the bur-
den of showing its incorrectness is thrown upon the other party.^ He
may prove fraud, omission, or mistake, and in these respects he is in no
wise concluded by the admission implied from his silence after it
was rendered. * * *
Judgment affirmed. 71
ALLEN v. UNITED STATES.
[Supreme Court of the United States, 189G. 1G4 U. S. 492, 17 Sup. Ct. 154,
41 L. Ed. 528.)
Mr. Justice Brown 72 delivered the opinion of the court.
This was a writ of error to a judgment of the circuit court of the
United States for the Western district of Arkansas sentencing the
n Compare Wiedeman v. Walpole, L. It. 2 Q. I?. D. 534 (lS'.Hi. to the ef-
fect that the failure to answer a letter rhar^int,' the defendant Willi having
promised to marry the plaintiff could not be taken as an admission of the
truth Of sii'li statement.
That generally there is no implied admission from a failure to answer a
self-serving written statement Viele v. McLean, JOO N. Y. 2(JU, 03 N. E. 4G8
(1910).
"- i'urt of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 495
plaintiff in error to death for the murder of Philip Henson, a white
man, in the Cherokee Nation of the Indian Territory. The defendant
was tried and convicted in 1893, and, upon such conviction being set
aside by this court (150 U. S. 551, 14 Sup. Ct. 196, 37 L. Ed. 1179),
was again tried and convicted in 1894. The case was again reversed
(157 U. S. 675, 15 Sup. Ct. 720, 39 L. Ed. 854), when Allen was tried
for the third time, and convicted, and this writ of error was sued out.
The facts are so fully set forth in the previous reports of the case
that it is unnecessary to repeat them here. * * *
6. The fourteenth assignment is to the following language of the
court upon the subject of the flight of the accused after the homicide:
"Now, then, you consider his conduct at the time of the killing and his
conduct afterwards. If he fled, if he left the country, if he sought to
avoid arrest, that is a fact that you are to take into consideration
against him, because the law says, unless it is satisfactorily explain-
ed, — and he may explain it upon some theory, and you are to say
whether there is any effort to explain it in this case, — if it is unexplain-
ed, the law says it is a fact that may be taken into account against the
party charged with the crime of murder upon the theory that I have
named, upon the existence of this monitor called conscience, that
teaches us to know whether we have done right or wrong in a given
case."
In the case of Hickory v. United States, 160 U. S. 40S, 422, 16 Sup.
Ct. 327, 332 (40 L. Ed. 474), where the same question, as to the weight
to be given to flight as evidence of guilt, arose, the court charged the
jury that : "The law recognizes another proposition as true, and it is
that 'the wicked flee when no man pursueth, but the innocent are as
bold as a lion.' That is a self-evident proposition that has been recog-
nized so often by mankind that we can take it as an axiom, and apply
it to this case." It was held that this was error, and was tantamount
to saying to the jury that flight created a legal presumption of guilt, so
strong and conclusive that it was the duty of the jury" to act on it as
an axiomatic truth. So, also, in the case of Alberty v. United States,
162 U. S. 499, 509, 16 Sup. Ct. 864, 868, 40 L. Ed. 1051, the court used
the same language, and added that from the fact of absconding the jury
might infer the fact of guilt, and that flight was a silent admission by
the defendant that he was unwilling or unable to face the case against
him, and was in some sense, feeble or strong, as the case might be, a
confession. This was also held to be error. But in neither of these
cases was it intimated that the flight of the accused was not a circum-
stance proper to be laid before the jury as having a tendency to prove
his guilt. Several authorities were quoted in the Hickory Case (page
417, 160 U. S., page 330, 16 Sup. Ct., 40 L. Ed. 474) as tending to es-
tablish this proposition. Indeed, the law is entirely well settled that the
flight of the accused is competent evidence against him as having a
tendency to establish his guilt. Whart Horn. § 710; People v. Pit-
cher, 15 Mich. 397.
496 HEARSAY (Ch. 3
This was the substance of the above instruction, and, although not
accurate in all its parts, we do not think it could have misled the
jury. * * *
Affirmed.
MORSE v. MINNEAPOLIS & ST. L. RY. CO.
(Supreme Court of Minnesota. 1883. 30 Minn. 465, 16 N. W. 35S.)
Mitchell, J. 78 This was an action to recover damage for the al-
leged negligence of defendant, causing the death of plaintiff's intes-
tate while employed as an engineer on its railroad. One of the acts
of negligence alleged to have contributed to the injury was defend-
ant's allowing its track to become and remain out of repair ; the
defects in that respect consisting of a broken rail and defective switch,
which caused the engine upon which the deceased was to be thrown
from the track and upset. * * *
Plaintiff was also permitted to show that after the accident defend-
ant repaired the switch alleged to have been defective. The court
held, in O'Leary v. Mankato, 21 Minn. 65, that such evidence was
under certain circumstances competent. This case was followed in
Phelps v. Mankato, 23 Minn. 276, and Kelly v. Southern M. R. Co.,
28 Minn. 98, 9 N. W. 588, and this position is not without support
in the decisions of other courts. But, if competent, such evidence is
only so as an admission of the previous unsafe condition of the thing
repaired or removed, and to render it admissible as such the act must
have been done so soon after the accident and under such circum-
stances as to indicate that it was suggested by the accident, and was
done to remedy the defect which caused it. All courts who admit the
evidence at all so hold. In the present case the change in this switch
was made over a year after the accident, and after it had been removed
to another place. Under such circumstances the repairs were, presum-
ably, merely an ordinary betterment. Under such a state of facts
such evidence would not be admissible under any rule, and its admis-
sion was, therefore, error. But, on mature reflection, we have con-
cluded that evidence of this kind ought not to be admitted under any
circumstances, and that the rule heretofore adopted by this court is
on principle wrong; not for the reason given by some courts, that
the acts of the employes in making such repairs are not admissible
against their principals, but upon the broader ground that such acts
afford no legitimate basis for construing such an act as an admission
of previous neglect of duty.
A person may have exercised all the care which the law required,
and yet in the light of his new experience, after an unexpected acci-
dent has occurred, and as a measure of extreme caution, he may
ts Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 497
adopt additional safe-guards. The more careful a person is, the
more regard he has for the lives of others, the more likely he would
be to do so, and it would seem unjust that he could not do so with-
out being liable to have such acts construed as an admission of prior
negligence. We think such a rule puts an unfair interpretation upon
human conduct, and virtually holds out an inducement for continued
negligence. Dougan v. Champlain Transp. Co., 56 N. Y. 1 ; Sewell
v. City of Cohoes, 11 Hun (N. Y.) 626; Baird v. Daly, 68 N. Y. 547;
Payne v Troy & Boston R. Co., 9 Hun (N. Y.) 526; Salters v. D. &
H. Canal Co., 3 Hun (N. Y.) 338; Dale v. Del., L. & W. R. Co., 73 N.
Y. 468. * * *
New trial granted. 74
HARRINGTON v. INHABITANTS OF LINCOLN.
(Supreme Judicial Court of Massachusetts, 1S55. 4 Gray, 563, 64 Am.
Dec. 95.)
Action of tort to recover damages occasioned to the person of the
plaintiff by a defect in a highway. Trial at April term, 1855, before
Bigelow, J., who made the following report thereof :
"The defendants offered evidence of a conversation between their
selectmen and the plaintiff, when the former asked the plaintiff how
he would settle with the defendants. The plaintiff objected to any
evidence of the statements made by him at this interview, on the
ground that they were made for the purpose of effecting a compro-
mise. The court ruled that no offer, made by the plaintiff in the
course of this conversation, for the purpose of settling this case, was
competent; but that all statements and declarations of independent
facts, relative to the issue, made by the plaintiff during this interview,
were competent.
"Thereupon it was testified by the witness that the selectmen told
the plaintiff they were willing to pay him for his loss of time and his
actual expenses incurred in consequence of the accident; and asked
the plaintiff what these items would actually amount to. The plain-
tiff, in. reply to questions, then stated the amount of wages he was
receiving per month at the time of the accident; how much time he
lost in consequence of the accident ; the amount of his doctor's bill ;
T4 Accord: Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 12 Sup.
Ct. 591, 36 L. Ed. 405 (1892), where a number of the cases are collected.
Where the question is as to who had control of the premises, or whose
business it was to repair, such matters have sometimes been received, not as
admissions, but as acts of dominion. Shinners v. Proprietors of Locks & Ca-
nals, 154 Mass. 168, 28 N E. 10. 12 L. R. A. 554. 26 Am. St Rep. 226 (lbOli.
The subsequent discharge of an alleged negligent employe cannot be treat-.!
as an implied admission of negligence. Engel v. United Traction Co., 203 >*.
T. 321, 96 N. E. 731. Ann. Cas. 1913A, 859 (1911).
1Iin*t.Ev.— 32
498 HEARSAY (Ch. 3
the cost of his board, while ill; the expense of nursing; and the
amount due to his employer for his lost time. These items were not
given by the plaintiff as offers upon which he was willing to settle,
but as being his actual loss and expenses. To these statements the
plaintiff objected, but they were admitted by the court.
"The defendants also offered in evidence the declaration of the
plaintiff to a third person, of the amount for which he had at some
previous time offered to settle with the town. This was objected to
by the plaintiff ; but it not being an offer of compromise, but only a
declaration of the plaintiff to a third person, it was admitted. * * *
"The jury returned a verdict for the plaintiff, [and assessed dam-
ages at twenty dollars.] If either of the foregoing rulings was er-
roneous, the verdict is to be set aside; otherwise, judgment is to be
entered on the verdict."
B. F. Butler, for the plaintiff. 1. The plaintiff's statement of sums
and amounts was not made as a statement of independent facts, but
*n reply to an offer to pay these items of loss of time and expenses,
accompanied by an inquiry what the amounts were, as a basis of
settlement. It was equivalent to saying to the selectmen, "Your offer
amounts to only the sums, which I name, which I do not choose to
accept.'" A refusal of an offer of compromise can be no better evi-
dence than the offer itself.
2. The law does not allow an offer of compromise to be proved,
oecause the law encourages attempts at settlement, and because such
offers are not the unbiassed action of the mind, but induced by hope
of settlement and fear of litigation. The party's admission to a third
person is only one means of proving the offer, and equally inadmissi-
ole with proof of the offer itself. Besides, it is wmolly irrelevant to
che issue between the parties, as it only tends to show for what sum
the plaintiff was willing to adjust his claim. 76
Thomas, J. 1. The first exception cannot be sustained. The pre-
siding judge ruled that no offer of settlement, made by the plaintiff
in a conversation had with the agents of the defendants, with a view
to the adjustment of the controversy, was competent; but that state-
ments of independent facts, made in the course of such conversation,
might be admitted. The distinction is sound. The facts stated were
capable of being proved by any competent evidence, including the ad-
mission of the plaintiff. The amount of a doctor's bill, the cost of
board during sickness, the loss of time by absence from the service
of his employer, were simple facts, capable of exact certainty — facts,
the statement of which would not be modified by the occasion on which
it was made, certainly not to the prejudice of the party making it.
The offer of compromise stands upon a very different ground.
1 '(.ace is of such worth that a reasonable man may well be presumed
to seek after it even at the cost of his strict right, and by an abatement
r 6 Statement condensed and pari of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 499
from his just claim. The offer which a man makes to purchase it is
to be taken, not as his judgment of what he should receive at the end
of litigation, but what he is willing to receive and avoid it.
2. The evidence of the subsequent admission by the plaintiff of the
offer of compromise which he had made was not competent. It was
but one of the modes of proving a fact which, upon the soundest prin-
ciples of public policy, cannot be proved at all. Such offers are not
to be used to the prejudice of the party making them, in subsequent
litigation upon the subject. If the plaintiff had made the offer of
compromise in open town meeting, proof of it would have been ex-
cluded. His admission to his neighbor, upon his return from the
meeting, that he had made it, is excluded for the same reason. It is
not a particular mode of proof, which the law rejects, but the subject
matter. * * *
New trial ordered. 76
HEMINGS v. ROBINSON.
(Court of Common Pleas, 1729. Barnes' Notes Cas. 43G.)
A point was reserved at the sittings of Nisi Prius, whether the
proof of the indorser of a promissory note his acknowledgment that
the name indorsed on said note was his handwriting, be sufficient to
prove the indorsement in an action brought by plaintiff as indorsee
against defendant as drawer? The objection was, that no person's
confession but the defendant's himself can be evidence, and the in-
dorsees hand must be proved. The objection was held good; and
the verdict as to the second promise in the declaration, was ordered
to be vacated.
HANSON v. PARKER.
(Court of King's Bench, 1749. 1 Wils. 257.)
This is an action of debt upon a bond, with condition for the pay-
ment of a certain sum of money to one Lydia Dovey : the defendant
craves oyer of the condition, and pleads payment post diem to Lydia
Dovey. At the trial it was given in evidence, that Lydia Dovey, in
conversation touching this bond, being asked if the defendant owed
her any money, declared he did not owe her any thing, whereupon
the jury gave a verdict for the defendant. And now it was moved
for a new trial, that the declaration of Lydia Dovey, who was not
the party plaintiff in this action, ought not to affect the plaintiff;
and Lydia Dovey made an affidavit that the money had not been paid
7 6 See Rideout v. Newton, 17 N. H. 71 (1845), and Colburn v. Town of Gro-
ton, 66 N. H. 151, 28 Atl. 95, 22 L. R. A. 763 (1SS9), where a number of cases
are reviewed.
500 HEARSAY (Ch. 3
to her, and that she looked upon the defendant to be indebted to the
plaintiff, who was the obligee in the bond.
But Per Curiam. A new trial was refused, for Lydia Dovey is
to be considered as if she were really plaintiff, and the action (as
appears to us) is brought for her benefit; and if the condition of
the bond (being taken for payment of money to her) was capable of
any explanation, it ought to have been explained to the jury at the
trial, and we cannot admit of affidavits to explain evidence given at a
trial, so the plaintiff took nothing by the motion.
BAUERMAN et al. v. RADENIUS.
(Court of King's Bench, 1798. 7 Term R. 663.)
This was an action on the case, wherein the declaration stated that
in consideration that the plaintiffs had shipped on board a certain
vessel then lying at Embden, and whereof the defendant was master,
certain goods to be carried from thence to London there to be deliv-
ered in good condition and dry (except in case of inevitable damage
or leakage) to Messrs. Van Dyck and Co. for a certain reasonable
freight to be paid to the defendant, the defendant promised to carry
and deliver the same accordingly ; that the ship with the goods arrived
safely from Embden at London ; and although Messrs. Van Dyck and
Co. paid the freight for the same, yet the defendant did not deliver
the goods in good condition and dry, although not prevented from so
doing by inevitable damage or leakage, but on the contrary delivered
the same wet and ill-conditioned, and the said goods were through the
neglect and default of the defendant much damaged and spoiled &c.
To this the general issue was pleaded.
At the trial before Lord Kenyon at Guildhall much evidence was
at first gone into in order to shew that the injury arose from the un-
skilful stowing of the goods on board the vessel, and not from the
inevitable danger of the sea as the defendant endeavoured to establish.
But the principal question arose on the production in evidence by the
defendant of a letter from the plaintiffs, who were the shippers of the
goods to Van Dyck and Co., entirely exculpating the defendant from
all blame or imputation of negligence or misconduct, and stating that
he acted in every respect according to their (the plaintiffs') orders
by stowing the goods under their direction. But it also appeared in the
same letter that Van Dyck and Co. were the persons on whose risk the
goods were shipped, that they were the persons really interested in
the suit, and had indemnified the plaintiffs their agents in whose name
they had brought this action. Whereupon it was contended at the trial
in support of the action that as it was disclosed that Van Dyck and Co.
were the real plaintiffs, and the nominal plaintiffs only their agents,
the former ought not to be concluded by the admissions of their agents
Sec. 2) RECOGNIZED EXCEPTIONS 501
proved too by letter without the sanction of an oath, and that therefore
this evidence ought to be rejected: but Lord Kenyon being of a dif-
ferent opinion, the plaintiff was nonsuited.
Gibbs and Park moved to set aside the nonsuit."
• Lord Kenyon, C. J. This was an action brought by Bauerman
and Co. against the defendant Radenius ; and in the course of the trial
an admission by the plaintiffs themselves was proved that there was no
colour for the action, which admission was not fraudulently obtained
from them but was the opinion that the plaintiffs really entertained
on the merits of the case. And the only question now is whether or
not that ought to conclude the case against the plaintiffs who made the
admission. It was said by a very learned Judge, Lord Macclesfield,
towards the beginning of this century that the most effectual way of
removing land marks would be by innovating on the rules of evidence ;
and so I say. I have been in this profession more than 40 years, and
have practiced both in courts of law and equity ; and if it had fallen
to my lot to form a system of jurisprudence, whether or not I should
have thought it advisable to establish two different courts with dif-
ferent jurisdictions, and governed by different rules, it is not neces-
sary to say. But, influenced as I am by certain prejudices that have
become inveterate with those who comply with the systems they found
established, I find that in these courts proceeding by different rules a
certain combined system of jurisprudence has been framed most bene-
ficial to the people of this country, and which I hope I may be indulged
in supposing has never yet been equalled in any other country on
earth. Our courts of law only consider legal rights: our courts of
equity have other rules, by which they sometimes supersede those legal
rules, and in so doing they act most beneficially for the subject. We
all know that, if the courts of law were to take into their consideration
all the jurisdiction belonging to courts of equity, many bad conse-
quences would ensue. * * *
I cannot conceive on what ground it can be said that Bauerman and
Co. may be considered not as the parties in the cause for the purpose
of rejecting their admissions, and yet as the parties in the cause for the
purpose of preventing their being examined as witnesses. I take it to
be an incontrovertible rule that the admission made by a plaintiff on the
record is admissible evidence ; and on the trial of this cause there was
proof of an admission by the plaintiffs that they had no ground upon
which to support the action. With regard to the case of Biggs v.
Laurence [3 Term R. 454], which was cited to shew that an acknowl-
edgement made by the defendant's agent was evidence against the
principal, it is sufficient to say that that was not the point on which
the case was argued or determined in this court. It is my wish and my
comfort to stand super antiquas vias : I cannot legislate, but by my in-
T7 Statement condensed and part of opinion of Lord Kenyon, O. J., and
opinion of Grose, J., omitted.
502 HEARSAY (Ch. 3
dustry I can discover what our predecessors have done, and I will
servilely tread in their footsteps. I am therefore clearly of opinion
on principles of law that the plaintiffs cannot recover in this action, and
that we cannot in this case assume the jurisdiction of a court of equity
in order to overrule the rigid rules of law.
Ashhurst, J. It was competent to Van Dyck and Co. to have made
themselves parties to the record, instead of which they have chosen
to sue in the names of Bauerman and Co., by which they have made
the latter the real plaintiffs in a court of law, and are bound by their
acts and by the acts of other persons done by the orders of Bauerman
and Co. Here it is admitted that if the letter in question were to be
read as against Bauerman and Co. considering them as the plaintiffs,
it afforded sufficient ground to convince a jury that the plaintiffs
ought not to recover: but it is argued that, though the letter be ad-
missible in evidence, as it appears by the latter part of it that Bauer-
man and Co. were acting only as agents for Van Dyck and Co. the
admission made by the former ought not to prejudice the latter. But
that argument cannot be supported. When A. appoints B. his agent,
he is bound by every act and order of his done within the scope of his
authority. Here it appears by the letter that Bauerman and Co. were
present when the ship was loading and approved of the mode in which
it was effected: then if the loss happened in consequence of the di-
rections given by Bauerman and Co., Van Dyck and Co. must be
bound by it as much as if the orders had been given by themselves.
Lawrence, J. The ground, on which it must be contended that the
admission made by a mere trustee is not evidence, is that he has no
interest in the subject, and may therefore be induced to admit what is
not true. But in this case Van Dyck and Co. are in this difficulty;
the present plaintiffs either have or have not an interest: but it must
be considered that they have an interest in order to support the action,
and if they have, an admission made by them that they have no cause
of action is admissible evidence. I have looked into the books to see
if I could find any case in which it was holden that the admission of a
plaintiff on the record was not evidence, but have found none. There
is a case in Salkeld, where Lord Holt said that if the plaintiff in eject-
ment, who is considered only as a trustee for the lessor, released the
action, he might be committed for a contempt of the court, but he did
not say that the release would not defeat the action; this therefore
appears to be the most that a court of law can do in cases of this kind.
Rule discharged.
Sec. 2) RECOGNIZED EXCEPTIONS 503
WHITCOMB v. WHITING.
(Court of King's Bench, 17S1. Doug. 652.)
Declaration, in the common form, on a promissory note executed by
the defendant ; Pleas ; the general issue, and non assumpsit infra sex
annos ; Replication, assumpsit infra sex annos : The cause was tried
before Hotham, Baron, at the last Assizes for Hampshire. The plain-
tiff produced a joint and several note executed by the defendant, and
three others; and, having proved payment, by one of the others, of
interest on the note, and part of the principal, within six years, and the
Judge thinking that was sufficient to take the case out of the statute,
as against the defendant, a verdict was found for the plaintiff.
On Friday, the 4th of May, a rule was granted to shew cause, why
there should not be a new trial, on the motion of Lawrence, who cited
Bland v. Haslerig, C. B. H. 1 & 2 W. & M. 2 Ventr. 151 ; and, this day,
in support of the application, he contended, that the plaintiff, by su-
ing the defendant separately, had treated this note exactly as if it had
been signed only by the defendant; and, therefore, whatever might
have been the case in a joint action, in this case, the acts of the other
parties were clearly not evidence against him. The acknowledgment of
a party himself does not amount to a new promise, but is only evidence
of a promise. This was determined in the case of Heylin v. Hastings,
reported in Salkeld, 29, and 12 Modern 223 ; and, in Hemings v. Rob-
inson, C. B. M. 6 Geo. 2. Barnes Qto Ed. 436, it was decided^ that the
confession of nobody but a defendant himself is evidence against him.
That last case was an action by an indorsee of a note, against the
drawer, and the plaintiff proved the acknowledgment of a mesne in-
dorsor that the indorsement on the back of the note was in his hand-
writing; but the court was of opinion, that this was not evidence
against the drawer, but that the indorsement must be proved. It would
certainly open a door to fraud and collusion if this sort of evidence
were, in any case, to be admitted. A plaintiff might get a joint drawer
to make an acknowledgment, or to pay part, in order to recover the
whole, although it had been already paid.
Lord Mansfield. The question, here, is only, whether the action
is barred by the statute of limitations. When cases of fraud appear,
they will be determined on their own circumstances. Payment by one,
is payment for all, the one acting, virtually, as agent for the rest ; and,
in the same manner, an admission by one, is an admission by all ; and
the law raises the promise to pay, when the debt is admitted to be due.
WillES, Justice. The defendant has had the advantage of the
partial payment, and, therefore, must be bound by it.
Ashhurst and Buller, Justices, of the same opinion.
The rule discharged. 78
7 s The American cases appear to repudiate the doctrine that an acknowledg-
ment or new promise by one joint promisor will take the case out of the stat-
ute of limitations as to the others. See cases collected in 25 Cyc. 1356.
504 HEARSAY (Ch. 3
THE KING v. INHABITANTS OF HARDWICK.
(Court of King's Bench, 1809. 11 East, 57S.)
An appeal against an order for the removal of Joseph Vipond, Mary
his wife, and their children, by name, was entered at the sessions in
the name of "The Churchwardens and Overseers of the Poor of the
Parish of Hardwick in the County of Norfolk, Appellants, and the
Churchwardens and Overseers of the Poor of the Parish of Fulham
Saint Mar>- the Virgin, in the same County, Respondents." And upon
the hearing of the appeal, the Sessions confirmed the order, subject to
the opinion of this Court upon a case which stated,
The respondents, in order to prove the pauper's settlement in Hard-
wick, called the father, who being a settled inhabitant of that parish,
refused to be examined. They then called the pauper himself, who
proved from his knowledge, that his father had resided on the tene-
ment at Hardwick for 25 years, and that it was now worth more than
10/. per annum. And the Court admitted the pauper to give evidence
of his father's declarations to him, that he (the father) had purchased
the house when the pauper was 16 years of age for 87/. and that he
had about 10 years ago laid out above 100/. on the premises. The
Court were of opinion, that the pauper was not emancipated by his re-
siding in Besthorpe under the indenture of apprenticeship, nor by any
other act subsequent to it; and therefore confirmed the order. 79
Lord Ellenborough, C. J. Evidence of an admission made by
one of several defendants in trespass will not, it is true, establish the
others to be co-trespassers : but if they be established to be co-trespass-
ers by other competent evidence, the declaration of the one, as to the
motives and circumstances of the trespass, will be evidence against all
who are proved to have combined together for the common object.
With respect to the case at the bar, two questions have been made;
but that which has been argued most at length, and is considered to be
of most importance, is, Whether the declaration of the father, as
proved by the son, were admissible evidence? If, from the occupa-
tion of this estate by the father for 25 years, within the knowledge of
the son, now only 37 years old, during the greater part of that time,
as it would appear, without any payment of rent, added to the facts
that 40 years ago the estate was rented at 5/. 10s. per annum, and is
now worth above 10/. a year, the Justices at the Sessions had drawn
the inference, which they might fairly have done, that the father had
purchased it before the son came of age for above 30/., we might have
been saved this discussion ; but as it is, the question becomes material
to be decided. The question then is, Whether the declaration of a
parishioner respecting the circumstances of a settlement, of which he
could not be compelled to give evidence as a party to the appeal de-
ft gtatemenl <-ondensed and part of opinion of Lord Ellen borough, C. J. r
and oplnloi ' •• Blanc and Bayley, JJ., omitted.
Sec. 2) RECOGNIZED EXCEPTIONS ( l"j
pending, be admissible in evidence? I consider all appeals against or-
ders of removal, though technically carried on in the names of the
churchwardens and overseers of the respective parishes, yet in sub-
stance and effect to be the suits of the parishioners themselves, who
are to contribute to the expense of maintaining the paupers. The
parishioner, therefore, being a party, could not be called upon as a wit-
ness.
Then what is there to differ this from other cases of aggregate bod-
ies, who are parties to a suit. In general cases it cannot be question-
ed that the declarations of the parties to a suit are evidence against
them; and how is this case distinguishable from those upon principle?
What credit is due to such evidence is another consideration : his dec-
laration does not conclude the parish ; but will be more or less weighty
according to his means of knowledge, the genuineness of the declara-
tion, and other circumstances of which the Court would judge. A
declaration made by such a party loosely, and without competent
grounds of knowledge of the fact, would not be entitled to weight; but
the credibility of such evidence is quite a different question from its
competency ; and it is always open to contradiction like other evidence.
Here, however, the father had very competent means of knowledge as
to the fact declared by him : but it is sufficient for us to say, that the
evidence was competent to be received. * * *
Orders confirmed. 80
NUSSEAR v. ARNOLD.
(Supreme Court of Pennsylvania, 1825. 13 Serg. & R. 323.)
Error to the Court of Common Pleas of Adams county. The plain-
tiff in error, Michael R. Nussear, was plaintiff below, and the defend-
ant in error, George Arnold, was defendant below ; where a verdict and
judgment were rendered in favor of the defendant.
It was a trial on a feigned issue, directed by the register's court, to
try the validity of a writing purporting to be the testament and last
will of John Arnold, deceased. Three bills of exception were taken to
the opinion of the court below on points of evidence.
The third bill of exceptions was to the admission in evidence of the
declarations of Margaret King, that the testator was incapable of
transacting business. Margaret King was a principal devisee in the
will, which gave her the whole estate (except a few legacies to a small
amount) for her life; after her death one-half was to her relations,
and one-half to the testator's relations.
so For the difference between such bodies and ordinary private corporations,
see Starr Burving Ground Ass'n v. North Lane Cemetery Ass'n, 77 Conn. 83.
58 Atl. 467 (1904).
In the case of private corporations, the admission of a stockholder Is not
ordinarily receivable against the corporation.
50G HEARSAY (Ch. 3
Errors were now assigned on these points by the plaintiff in error. 81
Tilghmax, C. J. * * * The third bill of exception was, to the
admission of evidence "of the declarations of Margaret King, that the
testator was incapable of transacting business." Margaret King was
a principal devisee in the will, which gave her the whole estate (except
a few legacies to a small amount), for her life ; after her death, one-
half was to go to her relations, and one-half to the relations of the tes-
tator. It is said, in support of this evidence that Margaret King was
the real plaintiff in this issue, the plaintiff on record, Nussear, being
no more than her agent. If the whole estate had been devised to her,
there would have been no question but her declarations would have
been evidence, because the plaintiff on record has, in truth, no interest
in the cause, and his name is used as mere matter of form. If the issue
had been framed between John Doe and Richard Roe, it would have
answered the purpose fully as well, security having been given for the
costs, which was done in this case. But Margaret King is not the only
person interested in the establishment of the will, and hence arises the
difficulty of the present question; the testator's own relations, one
of whom is said to be an infant, are also interested. The register's
court having ordered the trial of this issue, the verdict and judgment
are conclusive as to the personal estate, and if given against the will,
will be evidence, not to be contradicted, against all persons claiming
personal estate under it. The declarations of Margaret King, therefore,
if received in evidence, would affect, not only herself, but others in no
manner connected with her, nor implicated in her conspiracy. Granting
that she is so much a party to the suit, that her confessions might be
evidence against herself, these confessions are not the confessions of
the others, who have a separate interest. It is not like the case of
joint partners, where the confession of one may be used against both.
We are now to establish a general principle to govern all cases of
this kind. It happens, that Margaret King has a large interest under
this will ; but if her declarations are evidence, so also must be the dec-
larations of a legatee, who takes but five dollars, or any other sum ;
the quantum of interest will make no difference. It was this consider-
ation which induced the court to reject evidence of the declaration of
one of the devisees, in the case of Bovard and wife v. Wallace and an-
other, 4 Serg. & R. 499. Now, that I have mentioned that case, I will
correct an error in the opinion of the court, in which it is said, that
the same point was determined in Miller v. Miller, 3 Serg. & R. 267,
8 Am. Dec. 651. When the opinion in Bovard v. Wallace was deliv-
ered at Chambersburg, the case of Miller v. Miller had not been pub-
lished, and the manuscript was in the hands of the reporters ; hearing
that the point had arisen in that case, I thought it had been decided,
and thence arose the error. But on mature reflection, I think the deci-
sion in Bovard v. Wallace was right. The same question was decided,
*i Statement condensed and i>;irt of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 507
in the same manner, by the Supreme Court of Massachusetts in Phelps
& Co. v. Hartwell & Co., 1 Mass. 71, and that is the only decision, di-
rectly in point, which I have been able to find, out of Pennsylvania.
It is a case sui generis, where the rights of several persons, depending
all on the same instrument, are tried together, and where, so far as
concerns personal estate, the law admits of no other mode of trial.
Under these circumstances, it is unsafe and unjust, to permit the rights
of one to be affected by the declarations of another, and therefore, I
am of opinion, that the evidence ought not to have been admitted.
The judgment is to be reversed and a venire facias de novo award-
ed. 82
TAYLOR v. GRAND TRUNK RY. CO.
(Supreme Judicial Court of New Hampshire, 1869. 48 N. H. 304, 2 Am. Rep.
229.)
Case to recover for injuries alleged to have been sustained by Emma
Taylor, in Sept., 1866, while travelling on defendants' road. In the
writ, dated Oct. 3, 1866, plaintiff was described as a minor suing by
A. W. Pope, her next friend. At April Term, 1867, the death of
plaintiff was suggested, and John Bailey, 2d, her administrator, was
admitted to prosecute the action. * * *
It appeared that Emma Taylor died under twenty-one years of age,
unmarried, and without issue. Defendants offered to prove declara-
tion made after the accident, and before the death of Emma, by her
father, who is still living. The evidence was excluded, subject to
defendants' exception. 83
Bellows, J. * * * Upon the subject of the father's admissions
it appears that they were made during the daughter's life, and when
he had no interest in the suit which she had commenced by her next
friend, A. W. Pope; and the competency of those admissions is urged
upon the ground that the avails of this suit now prosecuted by the
daughters administrator, will go to the father as the sole representa-
tive of the daughter, and that the father thus became the party in in-
terest.
At the time the admissions proposed to be proved were made, the
father occupied no position that would render his admissions com-
petent. In Haney v. Donnelly, 12 Gray (Mass.) 361, it was held that
the declarations of the father in respect to injuries received by his
82 And so in Sbailer v. Bumstead, 99 Mass. 112 (1SGS) : Schierbaum v.
Schemme 157 Mo. 1, 57 S. TV. 526, 80 Am. St. Rep. 604 (1000) ; McCune v.
Reynolds, 2S8 111. 1SS, 123 N. E. 317 (1919); Old Colony Trust Co. v. Di Cola
(Mass.) 123 N. E. 454 (1919); James v. Fairall, 154 Iowa, 253. 134 N. W. 60S,
38 L. R. A. (N. S.) 731 (1912), annotated, where a number of the cases are col-
lected. •
But see Armstrong v. Farrar, 8 Mo. 627 (1844), where it was assumed that
the parties took a joint interest under the will.
83 Statement condensed and part of opinion omitted.
508 • HEARSAY (Cll. 3
minor son were not admissible in favor of the defendant in a suit
afterwards brought by the son by the father as his next friend. This
was put upon the ground that there was no proof that up to the
time of those declarations the father was the son's agent.
If in this case the son was regarded as the real plaintiff it would
seem to be inequitable that he should be affected by the declarations
of his father at a time when he was in no way the agent or repre-
sentative of the son. If, however, the father after such declarations
became the sole party in interest to a suit for injuries to the son, a
very different case would be presented.
In the case of negotiable paper transferred after it is dishonored,
and sued by the endorsee, the declarations of the endorser made
while he held the bill or note are admissible against the endorsee,
upon the ground that they are the admissions of one under whom the
endorsee derives his title. He will not, however, be affected by ad-
missions of the endorser after the transfer, nor by his statements
made before he became the holder of the bill or note.
If the endorser retains an interest in the bill or note, as if he has
pledged it for less than the amount due, then his declarations made
after the transfer may be received to affect his own interest, but not
to affect the interest of the endorsee. 1 Greenl. Evi. § 190, and notes
and cases ; Bond v. Fitzpatrick, 4 Gray (Mass.) 89, 92 ; Sylvester v.
Crapo, 15 Pick. (Mass.) 92.
If a suit is brought by the holder of such bill or note, the defendant,
we think, may prove the admissions of such holder, made before as
well as after it came into his possession. At common law the de-
fendant could not call the plaintiff to prove the fact so admitted, and
it certainly is just that he should be allowed to prove the admissions,
nor can we perceive any legal objection to it. On the contrary the
general principle is that the admissions of a party against himself are
competent, and we are not aware that this is limited to admissions
made while he held the claim in question. Whether his admissions
shall affect a third person is a very different question as we have al-
ready seen.
Upon the whole, if under the circumstances the father is to be con-
sidered the party in interest here, we are of the opinion that his admis-
sions, though made before he acquired such interest, are competent
to be proved by the defendant.
The true rule is, we think, laid down in Plant v. McEwen, 4 Conn.
544, in these words : "On general principles, the declarations and
acts of the party of record, whether he had or had not an interest in
the subject at the time of making or performing them, are admissible
in evidence against him." And see Starke's Evi. 4th part, page 30.
The question is, then, whether the father was to be regarded as
the party in interest in this cause. If the disposition of the estate is
to be governed by our statute of distributions, then it would seem that
the whole estate of th<* daughter including the claim here in suit would
Sec. 2) RECOGNIZED EXCEPTIONS 509
go to the father. It does not appear, however, that the suit is prose-
cuted by him, nor does it appear that he has the sole interest in it, or
that others would not have claims upon the amount recovered, as cred-
itors of the deceased or by way of lien for costs and disbursements
in this suit.
In the case of Plant v. McEwen, 4 Conn. 544, before cited, which
was a suit upon a probate bond given by the defendant as executor
of his father, the plaintiff offered in evidence the acts of the defend-
ant before the testator's death in order to establish a claim against
the estate. The evidence was received at the trial, and on motion
for a new trial it was held that although the evidence might be com-
petent if it affected the interests of defendant alone, it was not ad-
missible to affect the heirs of the testator, and a new trial was grant-
ed. * * *
Upon these authorities it does not appear that enough has been
shown to give the father the character of a party in interest, or to
make his declarations admissible against the administrator or the
persons he may represent. Should he be shown to the party in in-
terest for whose benefit the suit is prosecuted, his admissions would
be competent the same as if he were the party of record; for the
law, with a view to evidence, regards the real parties. Starkie's Evi.
4th part, pages 31, 32, and Carleton v. Patterson [29 N. H. 580],
before cited; 1 Greenl. Evi. 180. * * *
New trial granted.
SHADDOCK et ux. v. TOWN OF CLIFTON.
(Supreme Court of Wisconsin, 1867. 22 Wis. 114, 94 Am. Dec. 588.)
Action by husband and wife for injuries to the wife alleged to have
been caused by the negligence of the defendant in maintaining one of
its streets in an unsafe condition, whereby the wagon in which the
wife was riding was overturned. The trial court excluded certain ad-
missions by the husband. 8 *
Dixon, C. J. Has the husband such an interest in the action that
his admissions of facts tending to defeat it ought to be received in
evidence? We think he has. The action is by husband and wife, to
recover damages for injuries done to the person of the wife. Such
damages, when recovered, are not the separate property of the wife,
under the statute enlarging the rights of married women as to prop-
erty. Rights of actions for torts of this nature are not included, but
only such real and personal property as a married woman may re-
ceive by inheritance, or by gift, grant, devise, or bequest from any
person other than her husband. Rev. St. chap. 95, § 3. The damages,
therefore, when recovered, will belong to the husband. He may re-
»< Statement condensed and part of opinion omitted.
510 HEARSAY (Cll. 3
duce them to possession, and dispose of them as he pleases. He con-
trols the action, and may discontinue it, or give a release. Any set-
tlement made or discharge properly given by him, will bind the wife.
Southworth v. Packard, 7 Mass. 95 ; Beach v. Beach, 2 Hill (N. Y.)
260, 38 Am. Dec. 584; Ballard v. Russell, 33 Me. 196, 54 Am. Dec.
620. It is true, should the husband die before the wife, and before
a recovery, and without having released the damages, the right of
action would survive to the wife, and it might be prosecuted in her
name alone. But the right of the wife is so remote and uncertain as
scarcely to be considered during the lifetime of the parties. It may,
with almost strict legal accuracy be said, that the husband has the ex-
clusive interest. For these reasons, we think his admissions should
be received. * * *
The admissions of the husband being receivable, the next question
is, whether there was anything in the nature of the admissions offered
which justified the circuit court in excluding them from the consid-
eration of the jury. The first offer was, to prove by the witness Dan-
iel Currier, that in an interview between him and the husband, the
day after the accident happened, the husband said that the accident
would not have occurred if Anna McGray (the person driving the
team) had not struck the off horse, and made him jump against the
near one and push him off. It appears from other parts of the record,
that the husband was not present at the time and place of the accident,
and consequently that his knowledge or information as to what then
occurred must have been derived from the statements of either Anna
McGray or his wife, or both. For the plaintiffs it is contended that
the admission was properly rejected, because it was of matter of
hearsay. 80 Mr. Greenleaf (1 Greenl. Ev. § 202) says it has been made
a question, whether the admission of matters stated as mere hearsay
ssNapton, J., in Sparr v. Wellman, 11 Mo. 230 (1847): "It is the prov-
ince of a witness to state facts and circumstances, from which the jury way
draw inferences, but is not for the witness to state his own inferences or
opinions. The language used by Sparr was therefore properly accompanied
with the circumstances under which it was used, and it was for the jury
to determine what meaning should be given to it under these circumstances.
The circumstances detailed by the witness— that he was a collector of news;
that the conversation was about dinner time, when a crowd was assembled;
that it was a hurried conversation— might lead the jury to the conclusion,
that Spun- was merely stating what he had heard from others, and about
which be had formed no opinion. If this was the conclusion of the jury, it
was their duty to disregard it. It could not amount to an admission. On the
Other band, there were other circumstances, in addition to those mentioned
by the witness, but which were in evidence, from which a different conclusion
mlghl have been drawn, sparr was an Innkeeper, and Wellman was Ids
guest, a robbery was alleged— and the innkeeper himself, in tins con-
ation with Crenshaw, and afterwards with another witness, speaks of it
as a fact, without qualification. Might it not be inferred, from the relation
of tii<- parties, that tin- innkeeper, upon hearing such a report, would feel
sufficient solicitude for the Credit of bis house, to make the necessary inquiries
;]11 ,i satisfy himself of the truth of the reported robbery, before be would
contribute to Its promulgation through the columns of a daily newspaper?
If ] |( . bad made Buch Inquiries, and became convinced of the truth of the
Sec. 2) RECOGNIZED EXCEPTIONS 511
is to be received in evidence, and leaves it in doubt. The Court of
Appeals, by a majority decision, in Stephens v. Vroman, 16 N. Y.
381, held such an admission not receivable. But the admission here
offered was not of a matter stated as mere hearsay, but of a matter
stated as a fact — a fact not, however, as it would seem, within the
personal knowledge of the party making the admission, but derived
by information from others. Ought such an admission to be received?
We are inclined to think that it should. Verbal' admissions are in some
respects evidence of a very weak character ; and, now that the parties
themselves are in general competent witnesss, they are open to the
fullest explanation. If the husband had received such information as
satisfied him that the striking of the horse was the cause of the acci-
dent, and as induced him deliberately to admit it as a fact, it was cer-
tainly some evidence to go to the jury to show that the plaintiffs' claim
of damages was unfounded. It was an admission strongly against the
interest of the party making it, and appears to us to be within the gen-
eral rule sanctioning evidence of that nature. * * *
Venire de novo. 89
SPARF et al. v. UNITED STATES.
(Supreme Court of the United States, 1895. 156 U. S. 51, 715, 15 Sup. Ct
273, 39 L. Ed. 343.)
Mr. Justice Harlan 87 delivered the opinion of the court.
The plaintiffs in error and Thomas St. Clair were indicted jointly
for the murder of Maurice Fitzgerald upon the high seas, on board
of an American vessel, the bark Hesper, as set forth in the indictment
mentioned in St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002, 38
L. Ed. 936. On motion of the accused, it was ordered that they be
tried separately. St. Clair was tried, found guilty of murder, and sen-
report, he was then stating as fact, what he had not only heard, but believed.
An admission is the statement of a fact against the interest of a party making
it — but it is not essential to constitute it an admission, that the fact should
have come under the personal observation of the declarant. Undoubtedly ad-
missions of the latter kind are much stronger tban where the declaration is
of a fact, of which the party could have no personal knowledge. But where
a party believes a fact upon evidence sufficient to convince him of its exist-
ence, his declaration of the existence of that fact, if against his interest, is
evidence against him. It is no doubt evidence of a very unsatisfactory char-
acter, depending altogether on the circumstances under which it is made,
but it is competent."
so Where modern statutes have destroyed the husband's interest in the
wife's chose in action, the fact that he is joined as a nominal party with her
is not sufficient to make his admission competent against her. White v. In-
gram, 110 Mo. 474, 19 S. W. 827 (1S92).
87 Part of opinion omitted; also dissenting opinions of Mr. Justice Brewer
and Mr. Justice Gray.
512 HEARSAY (Cll. 3
tenced to suffer the punishment of death. Subsequently the order for
separate trials was set aside, and the present defendants were tried
together, and both were convicted of murder. A motion for a new
trial having been overruled, a like sentence was imposed upon them.
The general facts of this case do not differ from those proved in St.
Clair's Case, and some of the questions arising upon the present as-
signments of error were determined in that case. Only such questions
will be here examined as were not properly presented or did not arise
in the other case, and are of sufficient importance to require notice at
our hands.
In the night of January 13, 1893, Fitzgerald, the second mate of the
Hesper, was found to be missing, and it was believed that he had been
killed, and his body thrown overboard. Suspicion being directed to
St. Clair, Sparf, and Hansen, part of the crew of the Hesper, as par-
ticipants in the killing, they were put in irons, by order of Capt. Soder-
gren, master of the vessel, and were so kept during the voyage from
the locality of the supposed murder to Tahiti, an island in the South
Pacific, belonging to the French government. They were taken ashore
by the United States consul at that island, and subsequently were sent,
with others, to San Francisco, on the vessel Tropic Bird.
At the trial, Capt. Sodergren, a witness for the government, was
asked whether or not after the 13th day of January, and before reaching
Tahiti, which was more than 1,000 miles from the locality of the al-
leged murder, he had any conversation with the defendant Hansen
about the killing of Fitzgerald. This question having been answered by
the witness in the affirmative, he was fully examined as to the circum-
stances under which the conversation was held. He said, among other
things, that no one was present but Hansen and himself. Being asked
to repeat the conversation referred to, the accused, by the counsel who
had been appointed by the court to represent them, objected to the
question as "irrelevant, immaterial, and incompetent, and upon the
ground that any statement made by Hansen was not and could not be
voluntary." The objection was overruled, and the defendants duly
excepted. The witness then stated what Hansen had said to him.
That evidence tended strongly to show that Fitzgerald was murdered
pursuant to a plan formed between St. Clair, Sparf, and Hansen ; that
all three actively participated in the murder; and that the crime was
committed under the most revolting circumstances.
Thomas Green and Edward Larsen, two of the crew of the Hesper,
were also witnesses for the government. They were permitted to
state what Hansen said to them during the voyage from Tahiti to San
Francisco. This evidence was also objected to as irrelevant, imma-
terial, and incompetent, and upon the further ground that the state-
ment the accused was represented to have made was not voluntary.
But the objection was overruled, and an exception taken. * * *
The declarations of Hansen, as detailed by Sodergren, Green, and
Sec. 2) RECOGNIZED EXCEPTIONS 513
Larsen, were clearly admissible in evidence against him. There was
no ground on which their exclusion could have been sustained. * * *
The declarations of Hansen after the killing, as detailed by Green
and Larsen, were also admissible in evidence against Sparf, because
they appear to have been made in his presence, and under such cir-
cumstances as would warrant the inference that he would naturally
have contradicted them if he did not assent to their truth.
But the confession and declarations of Hansen to Sodergren after
the killing of Fitzgerald were incompetent as evidence against Sparf.
St. Clair, Hansen, and Sparf were charged jointly with the murder of
Fitzgerald. What Hansen said after the deed had been fully consum-
mated, and not on the occasion of the killing, and in the presence only
of the witness, was clearly incompetent against his codefendant, Sparf,
however strongly it tended to connect the latter with the commission
of the crime. If the evidence made a case of conspiracy to kill and
murder, the rule is settled that "after the conspiracy has come to an
end, and whether by success or by failure, the admissions of one con-
spirator by way of narrative of past facts are not admissible in evi-
dence against the others." Logan v. U. S., 144 U. S. 263, 309, 12
Sup. Ct. 617, 36 L. Ed. 429; Brown v. U. S., 150 U. S. 93, 98, 14
Sup. Ct. 37, 37 L. Ed. 1010; Wright, Cr. Consp. (Carson's Ed.) 212,
213, 217; 1 Greenl. Ev. § 233. The same rule is applicable where the
evidence does not show that the killing was pursuant to a conspiracy,
but yet was by the joint act of the defendants. * * *
We are of opinion that as the declarations of Hansen to Sodergren
were not, in any view of the case, competent evidence against Sparf,
the court, upon objection being made by counsel representing both de-
fendants, should have excluded them as evidence against him, and ad-
mitted them against Hansen. The fact that the objection was made
in the name of both defendants did not justify the court in overruling
it as to both, when the evidence was obviously incompetent, and could
not have been made competent against Sparf, and was obviouslv com-
petent against Hansen. It was not necessary that counsel should have
made the objection on behalf of one defendant, and then formally re-
peated it, in the same words, for the other defendant. If Sparf had
been tried alone, a general objection in his behalf, on the ground of
incompetency, would have been sufficiently definite. Surely, such an
objection coming from Sparf when tried with another ought not to be
deemed ineffectual because of the circumstance that his counsel, who,
by order of the court, represented also his codefendant, incautiously
spoke in the name of both defendants. Each was entitled to make his
own defense, and the jury could have found one of them guilty, and
acquitted the other. Insurance Co. v. Hillmon, 145 U. S. 285, 293, 12
Sup. Ct. 909, 36 L. Ed. 706. See, also, Com. v. Robinson, 1 Gray
(Mass.) 555, 560.
Hint.Ev.— 33
514 HEARSAY (Ch. 3
For the error of the court in not sustaining the objection referred
to so far as it related to Sparf, the judgment must be reversed as
to him, * * * 88
WILLIAMS v. JUDY.
(Supreme Court of Illinois, 1846. 3 Gilman, 2S2, 44 Am. Dec. 699.)
CaTON, J. This suit was brought by Judy against Williams, on a
promissory note made by Williams, and payable to one Whiteside,
and dated on the 13th of April, 1839, for the sum of two hundred
dollars, and payable 30 days from date, and by Whiteside assigned to
Judy. The defendant filed pleas of the general issue, and that the
consideration of said note was for money won at gaming. On the
trial of the said cause, the defendant proved by one Reed, that he had
seen the note in the possession of Whiteside in September, 1839, after
the same became due, and that at that time the note had not been
assigned. The defendant then offered to prove, that at the same time
Whiteside, the payee of the note, admitted that it was given for money
won at gaming. Upon the objection of the plaintiff's counsel, the
court held these admissions to be incompetent evidence. This decision
of the court presents the only material question for our consideration,
and is presented for the first time to this court for its decision.
We find it abundantly settled by authority, and it is well supported
by reason, that the admissions of an assignor of a chose in action may
be given in evidence against the assignee, if the admissions were against
his interest at the time, especially if a cause of action existed presently,
when the admissions were made.
In the case of Pocock v. Billing, 2 Bing. 269, Best, C. J., said:
"In order to render these declarations receivable, it ought to have
been shown, that the party making them was the holder of the bill at
the time. They are admissions, and as such receivable only when they
are supposed to be adverse to the interest of the party." In this case
subsequently, at Nisi Prius, these admissions of the assignor of the
bill were admitted in evidence against the assignee, it having been
proved that the admissions were made before the assignment. Ry. &
Mood. 127.
In Shirley v. Todd, 9 Greenl. (Me.) 83, it was held that such admis-
sions were competent evidence. Weston, J., in giving the opin-
ion of the court says: "We are satisfied that the declarations of Moses
Shirley, the payee of the order, while the interest was in him, are ad-
*
ss See, also, Rex v. Martin, 9 Ont. L. R. 218, 2 B. R. C. 336 (1905), anno-
tated, wti' b evidence was admitted with a caution t<> the jury, not to
,.,,,, ider it agalnsl the other defendant; in tins case die former practice of
admitting only su<'h parts of the Btatement us referred to the speaker is dis-
approved as unfair to him.
SeC. 2) RECOGNIZED EXCEPTIONS 515
missible in evidence." In that case the admissions were made, as
in this, after the maturity of the paper, and before its transfer.
We deem it unnecessary to refer to the great multitude of cases on
this subject, especially as they are principally all collected and com-
mented upon by Messrs. Cowen & Hill, in their notes to Phillips'
Evidence, 663-668. It may be said that there is but one court whose
decisions form an exception to this rule, and that is the supreme court
of New York. Since the collection of the cases on this subject by
Cowen & Hill, this question has again been before that court, in the
case of Beach v. Wise, 1 Hill (N. Y.) 612. There the present chief
justice of that court, in the decision of the case, expressed his disap-
probation of the rule, as formerly established by that court, but finally
follows the former decisions, not feeling himself at liberty to overrule
the decisions of those who had gone before him. He says: "As an
original question I should be unable to see any settled distinction be-
tween cases relating to real property, where the declarations of the
former owner are constantly admitted, and those relating to choses
in action and other personal property, where, as we have seen, such
declarations are rejected." I confess myself unable to see any distinc-
tion at all.
It was objected by the defendant in error, that there is no aver-
ment in the pleas, that the note was assigned after it became due.
That was unnecessary, for by our statute, notes, etc., given for money
won at gaming are declared to be absolutely void, even in the hands
of the assignee; hence, it was unnecessary to show that the note was
received by the assignee mala fide. Besides, this is not a question of
pleading, but of evidence, and the presence or absence of such an aver-
ment could have no influence upon the admissibility of the proposed evi-
dence.
The judgment of the circuit court must be reversed with costs, and
the cause remanded for a new trial.
Judgment reversed. 89
VROOMAN v. KING.
(Court of Appeals of New York, 1S67. 36 N. T. 477.)
Da vies, C. J. 90 This is an action of ejectment ; and upon the trial
the plaintiff sought to show title in herself and out of the defendant,
by proving the declarations of one Reeves, a former owner of the
land, and through whom the defendant claimed title.
ss Accord: Murray v. Oliver, 18 Mo. 405 (1853), admission by the assignor
of a bond ; Robb v. Schmidt, 35 Mo. 290 (1S64), admission of payment by the
prior holder of a past-due promissory note.
Contra: Paige v. Cagwin, 7 Hill (N. Y.) 361 (1S43), excluding the admission
of payment by the prior holder of a past due note.
90 Part of opinion of Davies, C. J., and opinion of Grover, J., omitted-
516 HEARSAY (Ch. 3
Solomon Higgins, a witness for the plaintiff, was asked, "While
Reeves was in possession, what did you hear him say in relation to the
title or ownership of that land?" Answer — "I heard him say he had
no title to the land; he had better get a little something for it than
lose it; that the widow Kissam was coming to claim it. (The de-
fendant's counsel objected to the evidence, as being what Reeves had
said after he sold his possession. Objection overruled for the present,
and exception taken.) I heard Reeves say to his wife that he had
nothing but a squatter's title ; she was desiring to know why he sold
it (same objection, ruling and exception as above); the first conversa-
tion was with a young man who lived there ; the next was when he
sold ; the old man Reeves had been to Jones, and when he came home
he said : 'Wife, I have sold my pine land ;' she said, 'You have been in
a scrape and given old Jim Jones that land ;' he said he had not ; that
he had sold it to Jones and given him twenty years to pay for it in :
that the widow Kissam was coming to take the land away from him ;
that he could not hold it if she came." This evidence here objected to
by the defendant's counsel, because it was sayings of Reeves after the
sale of land by him, and not evidence against Jones and those claiming
under him. The objection was overruled for the present, and to be
considered in the charge, and the defendant excepted. * * *
Were the statements made by Reeves after the sale by him and while
in possession of the premises, competent evidence? The reason why
the declarations or statements of a party are ever admissible is that
they affect his title or possession and characterize the same while owner
or in possession, and are consequently binding upon the party making
the same, and his privies. But if made by a party not an owner at the
time, upon what principle can they be held to affect his grantee?
Thompson, Ch. J., in Jackson v. Aldrich, 13 Johns. 106. thought this
rule very clear, as he says : "For it is a proposition that cannot be
questioned that a grantor cannot after the execution of his deed law-
fully do any act to prejudice the rights of his grantee; nor are decla-
rations, confessions or admissions of his to be admitted against the
grantee."
The same principle was affirmed by the chancellor in Varick v.
Briggs, 6 Paige, 323. The doctrine is very fully discussed by the
chancellor in Padgett v. Lawrence, 10 id. 170, 40 Am. Dec. 232. The
chancellor says: "As a general rule, declarations made by a person in
-session of real estate as to his interest or title in the property may
be given in evidence against those who subsequently derive title under
him, in the same manner as they could have been used against the par-
ty himself if he had not parted with his possession or interest. On
the other hand, it is equally well settled that no declaration of a for-
mer owner of the property, made after he had parted with his inter-
• therein, can be received in evidence to affect the legal or equitaM
title to the premises. * * *
Sec. 2) RECOGNIZED EXCEPTIONS 517
The declarations of Reeves, while a mere tenant at sufferance of
Jones, as he certainly was after the sale to him, could not under any
circumstances be received as evidence against the latter, or those claim-
ing under him, to prejudice or impair his or their title to the premises.
And if it be doubtful whether the declarations were made by the gran-
tor before or after he made the sale and gave his deed, they cannot be
received in evidence. It is incumbent on the party claiming to put in
evidence such declarations to lay the proper foundation for their in-
troduction. It therefore becomes his duty clearly to establish in the
first instance that the declarations were made before the execution of
the deed, and before he parted with his interest in the premises. 1
Cow. & Hill Notes, 686; Stockett v. Watkins' Adm'rs, 2 Gill & J.
(Md.) 326, 343, 344, 20 Am. Dec. 438.
It is very clear that in this case the whole statement of Reeves must
be taken as an entirety. 91 And by one portion of it it distinctly
appears that previous to the making thereof he had sold the premises
to Jones. This fact thus appearing, the residue of the declaration in
relation to his title was inadmissible, and should not have been received.
And as it already had been, notwithstanding the defendant's objection,
it should have been stricken out on his motion and wholly withdrawn
from the consideration of the jury. For this error a new trial must
be granted. * * *
Judgment reversed.
si By the court in Rex v. Paine. 5 Modern, 163 (1696): "As to the first
point, there was no proof that he was the composer of it. or that he wrote
it, but by his own confession before the mayor. Now if such confession shall
be taken as evidence to convict him. it is but justice and reason, and so al-
lowed in the civil law. that his whole confession shall be evidence as well for
as against him. and then there will be no proof of a malicious and seditious
publication of this paper ; for he confessed that it was delivered by mistake."
And so in Handle v. Blackburn, 5 Taunt. 245 (1813).
Best, C. J., in Smith v. Blandy, R. & M. 257 (1825): "I agree with the
case just stated, which seems perfectly consistent with the account given of
Remmie v. Hall. The whole of what a party says at the same time must
be given in evidence and what he says in his favor must not be taken as true,
but must be left, under all the circumstances, for the jury to say whether
they believe it or not. I think this paper must be left to the jury without
further proof."
But the party against whom the admission is used is not entitled to prove
distinct assertions in his own favor, not limiting or qualifying the admis-
sion, though made in the course of the same conversation. Prince v. Samo,
7 Ad. & El. 627 (1S3S), disapproving the dictum to the contrary by Lord
Tenterden in the Queen's Case, 2 Br. & Bing. 297 (1820).
518 HEARSAY (Ch. 3
HUGHES v. DELAWARE & H. CANAL CO.
(Supreme Court of Pennsylvania, 1S96. 176 Pa. 254, 35 Atl. 190.)
This was an action of trespass for the death of plaintiff's husband
who had been struck and injured at a railroad crossing by a locomotive
operated by the defendant.
When Martin Crippen, a witness for defendant, was on the stand,
defendant offered to prove by him that on September 10, 1890, he call-
ed upon William J. Hughes, plaintiff's husband, at the hospital ; that
Mr. Hughes there made a statement to him which he put down in a
small memorandum book; that he dictated this statement to W. H.
Jessup, Jr., who reduced it to writing, and the witness thereupon took
it back to the hospital and read it to Mr. Hughes, who thereupon
stated that it was correct and signed it in his presence; which state-
ment is as follows :
"Scranton, Sept. 10, 1890.
"I, William J. Hughes was driving down Carbon street, in a wester-
ly direction, on Sept. 3, 1890, about 6:45 o'clock in the evening in an
open one-horse buggy. David Y. Jones was in the buggy with me.
I was driving and we drove upon the Carbon street crossing. We
were struck by a locomotive and both thrown out. The horse was
killed and the buggy broken to pieces. We were driving along very
easy and did not stop before we were struck, and we did not know
there was any train coming. [Signed] William J. Hughes.
"Witness : I. L. Sutto.
"U. G. Bull."
This was offered for the purpose of showing the declaration of
William J. Hughes, the decedent, for the injuries to whom, resulting
in his death, this suit was brought, and to substantiate the proposi-
tion that decedent was guilty of contributory negligence, and that
therefore the plaintiff cannot recover. The offer was objected to
by counsel for plaintiff as incompetent. The court overruled the of-
fer, saying, "We think this offer is incompetent. We do not under-
stand that the present plaintiff is the successor in interest of the
decedent. The action is an independent action given by the statute
to the widow, and, therefore, we think it is not the admissions of a
party, and that it is a mere declaration, not made under the sanction
of an oath, and therefore incompetent."
Exception noted for defendant, at whose request a bill was sealed.
The defendant's seventh point that upon the whole evidence the
decedent was guilty of contributory negligence and the plaintiff was
not entitled to recover, was reserved, and motion for judgment there-
on for defendant non obstante veredicto was afterwards overruled.
Verdict for plaintiff for £9,499.50. The defendant appealed.
f>2 Statement condenesed and part of opinion omitted.
02
Sec. 2) RECOGNIZED EXCEPTIONS 519
Mitchell, J. * * * For the same reason it was also error to
exclude the statement by Hughes, the plaintiff's husband. It should
have gone to the jury, in connection with the circumstances under
which it was made. This was excluded, also, on the ground that it
was not made by a party to the suit, and was not, therefore, ad-
missible against the plaintiff. This, however, is no more tenable than
the other. At the time his statement was made, the only right of ac-
tion there was at all was in Hughes. Plaintiff had no claim until he
died, and then the foundation of her claim was the injury to him, for
which he might have sued in his lifetime. If the defendant would not
have been liable to him in the first instance, it was not made liable to
her by his death. We are not aware of any case, and certainly our
attention has not been called to any, in which a widow has recovered
for injuries to her husband, where he could not have done so him-
self if he had survived; and on principle, it is perfectly clear that
she never can do so, for the original right of action is in him, and
hers is but in succession or substitution for his, where he has not
asserted it himself. If he has done so, his action survives ; if he
has not, then by virtue of the statute she brings hers, in its place, but
for the same cause. Birch v. Railroad Co., 165 Pa. 339, 30 Atl. 826.
In this connection appellee cites the remarks in Bradford City v.
Downs, 126 Pa. 622, 17 Atl. 884, 03 as to the declarations of an infant,
who was injured, not being admissible against the father, in an action
for loss of services, unless they were part of the res gestae. The
cases might easily be distinguished,on the ground that the father's
action in his own right, and not derived through the infant. A much
closer analogy may be found in the declarations of a predecessor in
title while in possession, which have always been held admissible.
Weidman v. Kohr, 4 Serg. & R. 174. But the point in Bradford City
v. Downs was comparatively unimportant, and in Ogden v. Railroad
Co. (Pa.) 16 Atl. 353, the court distinctly declined to include it in the
affirmance of the judgment. We entertain so strong a doubt of its
soundness that we should be unwilling to extend the rule to the pres-
ent case, even if the analogy were closer than it is.
It is not worth while to discuss the minor assignments of error,
or the evidence relative to the place where the deceased stopped to
look and listen, because, on the whole case, his contributory negli-
gence was so unquestionable that the court should have pronounced
upon it as a matter of law. * * *
Judgment reversed.
»3 See to the same effect, Farber v. Missouri Pac. Ry. Co., 139 Mo. 272. 40
S. W. 932 (1897).
520 HEARSAY (Ch. 3
FAIRLIE v. HASTINGS.
(Court of Chancery, 1804. 10 Yes. 123.)
The Master oe the Rolls. 94 The subject of this cause is a loan
of money by the late Plaintiff Maha Rajah Nobkissen to the Defend-
ant. As it is not by bill in Equity that money lent is to be recovered,
it is incumbent upon the Plaintiff to state, and to prove, some ground
for coming into this Court for the payment, or the means of obtaining
payment of his demand. The question of jurisdiction must depend
upon the allegations of the bill ; which states, that the Defendant
applied to the Plaintiff for the loan of three lacks of rupees upon the
security of the Defendant's bond ; that the Plaintiff agreed to advance
that sum by instalments; that a bond was executed; which it was
agreed should remain with Caunto Baboo, an agent of the Defendant,
until the whole money should be advanced, and then should be delivered
to the Plaintiff; that the money was advanced, but the Plaintiff never
received the bond ; Caunto Baboo in answer to his repeated applications
at length informing him that it had been delivered up to the Defend-
ant.
In support of this statement the Plaintiff has not read, and could
not read, any part of the answer. But the Plaintiff has gone into evi-
dence of declarations by Gobindee Baboo and Caunto Baboo ; and the
question is, whether these declarations can amount to proof of such
facts as are alleged by the bill.
Upon that question my opinion is, that these declarations do not
come within the principle upon which they are supposed to be admis-
sible. As a general proposition, what one man says, not upon oath,
cannot be evidence against another man. The exception must arise
out of some peculiarity of situation, coupled with the declarations made
by one. An agent may undoubtedly, within the scope of his authority,
.bind his principal by his agreement; and in many cases by his acts.
[What the agent has said may be what constitutes the agreement of
the principal; or the representations or statements made may be the
foundation of, or the inducement to, the agreement. Therefore, if
writing is not necessary by law, evidence must be admitted, to prove the
agent did make that statement or representation. So, with regard to
acts done, the words with which those acts are accompanied frequently
tend to determine their quality. The party, therefore, to be bound
by the act, must be affected by the words. But, except in one or the
other of those ways, I do not know, how what is said by an agent can
evidence against his principal. The mere assertion of a fact cannot
amount to proof of it; though it may have some relation to the busi-
ness, in which the person making that assertion was employed as agent.
r instance, if it was a material fact, that there was the bond of the
»« Statement omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 521
Defendant in the hands of Caunto Baboo, that fact would not be proved
by the assertion, that Gobindee Baboo, supposing him an agent, had said
there was ; for that is no fact, that is, no part of any agreement which
Gobindee Baboo is making, or of any statement he is making, as in-
ducement to an agreement. It is mere narration : communication to
the witness in the course of conversation ; and therefore could not be
evidence of the existence of the fact.
The admission of an agent cannot be assimilated to the admission
of the principal. A party is bound by his own admission ; and is not
permitted to contradict it. 95 But it is impossible to say, a man is pre-
cluded from questioning or contradicting any thing any person has as-
serted as to him, as to his conduct or his agreement, merely because
that person has been an agent of his. If any fact, material to the in-*
terest of either party, rests in the knowledge of an agent, it is to be
proved by his testimony, not by his mere assertion. Lord Kenyon
carried this so far as to refuse to permit a letter by an agent to be
read to prove an agreement by the principal; holding, that the agent
himself must be examined; Maesters v. Abram, 1 Esp. N. P. Cas.
375. If the agreement was contained in the letter, I should have thought
it sufficient to have proved that letter was written by the agent: but,
if the letter was offered as proof of the contents of a pre-existing agree-
ment, then it was properly rejected. This doctrine was discussed
incidentally in Bauerman v. Radenius, 7 Term Rep. 663 ; and in that
case there is a reference to another, Biggs v. Lawrence, 3 Term Rep.
454, in which Mr. Justice Buller held, that a receipt given by an agent
for goods, directed to be delivered to him, might be read in evidence
against the principal. The Counsel in Bauerman v. Radenius state,
that the contrary had been frequently since held by Lord Kenyon at
Nisi Prius, without its having ever been questioned. That statement
does not appear to have been denied upon the other side ; and seems
to have been acquiesced in by Lord Kenyon ; who said, "that was not
the point, upon which the case was argued or determined;" meaning
the point, that such a receipt could be admitted in evidence.
It will be found, however, that this question can hardly be said to
arise in this case ; when it is considered, what the concern of Caunto
Baboo in this transaction was, and what are the facts, in proof of
which his declaration was offered. Caunto Baboo is stated to have
been in the employment of the Defendant. One of the witnesses says,
he had the general management of his pecuniary concerns. But of
this particular transaction he does not appear, either by the bill or the
witness, to have had the management. Upon the whole of the state-
ment and evidence it does not appear, that Caunto Baboo was con-
cerned in the negotiation of the loan; that he was employed as the
»» The early notion, that a party was bound by an admission, so that he
could not contradict or explain it, has long since been exploded. Ridgwav v.
Philip. 1 C. M. & R. 415 (1834); Heane v. Rosers. 9 B. & C. 577 (1S29) ; Anvil
Mining Co. v. Humble, 153 U. S. 540, 14 Sup. Ct 876, 38 L. Ed. 814 (1894).
522 HEARSAY (Ch. 3
agent for this purpose. The statement of the bill represents the De-
fendant himself to have made the agreement : therefore any repre-
sentation of Caunto Baboo relative to an agreement, not stated to have
been made by him, would not be the statement of an agent : supposing,
such statement was to be admitted in evidence. The Plaintiff fails
first in showing Caunto Baboo was the agent of the Defendant. In
this case, such a fact as Counto Baboo is represented to have stated,
is matter, not of admission, but of testimony. A man cannot admit
what another has done, or has agreed to .do : but he must prove it.
When put upon the proof, that the Defendant made the agreement,
it is absurd to say, Caunto Baboo admitted, he made it. In truth he
does not admit, that the Defendant made it. But, suppose Caunto
Baboo distinctly proved the agent of the Defendant, and that he said,
he knew, the Defendant did make the agreement for this loan, and
did promise and undertake to give a bond for the money, and did ex-
ecute a bond, but gave the bond, not to the Plaintiff, but to the wit-
ness, and he gave it back to the Defendant, who undertook to calculate
the interest, and to give a bond for the whole : all this would be no evi-
dence whatsoever of what the Defendant had agreed to do, or had
done, or omitted to do; and without evidence of his agreement, or
his acts, or his breach of agreement, it is utterly impossible to support
this bill.
Bill dismissed.
WOOD et al. v. BRADDICK.
(Court of Common Pleas, 1S0S. 1 Taunt. 104.)
This was an action brought to recover from the Defendant the pro-
ceeds of certain linens, which the bankrupts, in the year 1796, had
consigned for sale in America, as the Plaintiffs alleged to the De-
fendant jointly with one Cox, who was then his partner, but, as the
Defendant contended, to Cox only. The Defendant pleaded the gen-
eral issue, and the statute of limitations : at the trial at Guildhall, be-
fore Mansfield, C. J., the Plaintiffs produced in evidence a letter from
Cox, dated the 24th of June, 1804, stating a balance of £919. to be
then due to the bankrupts upon this consignment.
It was in proof that on the 30th of July, 1802, Braddick and Cox
dissolved their partnership, as from the 17th of November, 1800.
Cockell and Lens, Serjts., objected, that this letter being written
after the dissolution of the partnership, was not admissible evidence
to charge Braddick. The Chief Justice overruled the objection, but
erved the point: and the jury being of opinion that the agency
was undertaken by Cox on the partnership account, found a verdict
for the Plaintiff.
ckell, Serjt., now moved for a new trial. lie cited a case of
Petherick v. Turner and Another, tried in Mich, term, 42 Geo. 3, before
Sec. 2) RECOGNIZED EXCEPTIONS 523
Lord Alvanley, C. J. "Assumpsit for wages against two Defendants,
who had been partners. One of them suffered judgment to go by de-
fault : the other pleaded non assumpsit. At the trial the Plaintiff pro-
posed to read in evidence the answer, which the first mentioned De-
fendant had put in to a bill in the Exchequer, filed after the dissolu-
tion of the partnership against the same parties : the bill charged
collusion, and also charged that the debt for which this action was
brought, had not been paid ; the answer denied the collusion, but ad-
mitted the money had not been paid. Lord Alvanley, C. J., held that
it would have been good evidence against the Defendant who put in
the answer, but that being made after the dissolution of the partner-
ship, it could not be received as evidence against the other Defendant,
and rejected it." Cockell, Serjt., inferred from this case, that the evi-
dence given by a partner after the partnership had ceased, is not ad-
missible for the purpose of proving the joint undertaking of himself
and his former partner, even though the former existence of their
partnership is established by other proof.
Mansfield, C. J. Clearly the admission of one partner, made after
the partnership has ceased, is not evidence to charge the other, in any
transaction which has occurred since their separation : but the power
of partners with respect to rights created pending the partnership,
remains after the dissolution. Since it is clear that one partner can
bind the other during all the partnership, upon what principle is it,
that from the moment when it is dissolved, his account of their joint
contracts should cease to be evidence ? and that those who are to-day as
one person in interest, should tomorrow become entirely distinct in
interest with regard to past transactions which occurred while they
were so united?
Heath, J. Is it not a very clear proposition, that when a partner-
ship is dissolved, it is not dissolved with regard to things past, but
only with regard to things future? With regard to things past, the
partnership continues, and always must continue.
Cockell took nothing by his motion.
UNITED STATES v. GOODING.
(Supreme Court of the United States, 1S27. 12 Wheat. 460, 6 L. Ed. 693.)
Story, J. 9c This is the case of an indictment against Gooding for
being engaged in the slave-trade, contrary to the prohibitions of the
act of Congress of the 20th of April, 1818. It comes before us upon a
certificate of division of opinions in the circuit court of the district of
Maryland, upon certain points raised at the trial. We take this op-
portunity of expressing our anxiety, lest, by too great indulgence to the
™ Statement and part of opinion omitted.
524 HEARSAY (Ch. 3
wishes of counsel, questions of this sort should be frequently brought
before this court, and thus, in effect, an appeal in criminal cases become
an ordinary proceeding, to the manifest obstruction of public justice,
and against the plain intendment of the acts of Congress. Cases of real
doubt and difficulty, or of extensive consequence as to principle and
application, and furnishing matter for very grave deliberation, are
those alone which can be reasonably presumed to have been within the
purview of the legislature in allowing an appeal to this court upon
certificates of division. In this very case some of the questions certified
may have been argued and decided in the court below upon the mo-
tion to quash the indictment ; and there are others upon which it is
understood that the circuit court had no opportunity of passing a de-
liberate judgment.
The first question that arises is upon the division of opinions wheth-
er, under the circumstances of the case, the testimony of Captain Coit,
to the facts stated in the record, was admissible. That testimony was
to the following effect: That he, Captain Coit, was at St. Thomas
while the General Winder was at that island, in September, 1824, and
was frequently on board the vessel at that time ; that Captain Hill, the
master of the vessel, then and there proposed to the witness to engage
on board the General Winder as mate for the voyage then in progress,
and described the same to be a voyage to the coast of Africa, for slaves,
and thence back to Trinidad de Cuba ; that he offered to the witness 70
dollars per month, and five dollars per head for every prime slave
which should be brought to Cuba ; that on the witness inquiring who
would see the crew paid in the event of a disaster attending the voyage,
Captain Hill replied, "Uncle John," meaning, (as the witness under-
stood,) John Gooding, the defendant.
It is to be observed that, as preliminary to the admission of this tes-
timony, evidence had been offered to prove that Gooding was owner
of the vessel ; that he lived at Baltimore, where she was fitted out ; and
that he appointed Hill master, and gave him authority to make the fit-
ments for the voyage, and paid the bills therefor; that certain equip-
ments were put on board peculiarly adapted for the slave-trade ; and
that Gooding had made declarations that the vessel had been engaged in
the slave-trade, and had made him a good voyage. The foundation of
the authority of the master, the nature of the fitments, and the object
and accomplishment of the voyage, being thus laid, the testimony of
Captain Coit was offered as confirmatory of the proof, and properly ad-
missible against the defendant. It was objected to, and now stands
upon the objection before us. The argument is, that the testimony is
not admissible, because, in criminal cases, the declarations of the mas-
ter of the vessel are not evidence to charge the owner with an offence ;
and that the doctrine of the binding effect of such declarations by
known agents, is, and ought to be, confined to civil cases. We can-
not yield to the force of the argument. In general, the rules of evi-
dence in criminal and civil cases are the same. Whatever the agent
SeC. 2) RECOGNIZED EXCEPTIONS 525
does, within the scope of his authority, binds his principal, and is deem-
ed his act. It must, indeed, be shown that the agent has the authority,
and that the act is within its scope ; but these being conceded or proved,
either by the course of business or by express authorization, the same
conclusion arises, in point of law, in both cases. Nor is there any au-
thority for confining the rule to civil cases. On the contrary, it is
the known and familiar principle of criminal jurisprudence, that he
who commands or procures a crime to be done, if it is done, is guilty
of the crime, and the act is his act. This is so true, that even the agent
may be innocent, when the procurer or principal may be convicted of
guilt, as in the case of infants or idiots employed to administer poison.
The proof of the command or procurement may be direct or indirect,
positive or circumstantial ; but this is matter for the consideration of
the jury, and not of legal competency. So, in cases of conspiracy and
riot, when once the conspiracy or combination is established, the act
of one conspirator, in the prosecution of the enterprise, is considered
the act of all, and is evidence against all. Each is deemed to consent
to or command what is done by any other in furtherance of the com-
mon object. Upon the facts of the present case, the master was just
as much a guilty principal as the owner, and just as much within the
purview of the act by the illegal fitment.
The evidence here offered was not the mere declarations of the
master upon other occasions totally disconnected with the objects of
the voyage. These declarations were connected with acts in further-
ance of the objects of the voyage, and within the general scope of his
authority as conductor of the enterprise. He had an implied authority
to hire a crew, and do other acts necessary for the voyage. The tes-
timony went to establish that he endeavored to engage Captain Coit to
go as mate for the voyage then in progress, and his declarations were
all made with reference to that object, and as persuasives to the under-
taking. They were, therefore, in the strictest sense, a part of the res
gestae, the necessary explanations attending the attempt to hire. If
he had hired a mate, the terms of the hiring, though verbal, would have
been part of the act, and the nature of the voyage, as explained at the
time, a necessary ingredient. The act would have been so combined
with the declarations, as to be inseparable without injustice. The
same authority from the owner which allows the master to hire the
crew, justifies him in making such declarations and explanations as are
proper to attain the object. Those declarations and explanations are
as much within the scope of the authority as the act of hiring itself.
Our opinion of the admissibility of this evidence proceeds upon the
ground that these were not the naked declarations of the master, un-
accompanied with his acts in that capacity, but declarations coupled
with proceedings for the objects of the voyage, and while it was in prog-
ress. We give no opinion upon the point whether mere declarations,
under other circumstances, would have been admissible. The principle
which we maintain is stated with great clearness by Mr. Starkie, in his
526 HEARSAY (Ch. 3
Treatise on Evidence, 2 Stark. Evid. pt. 4, p. 60. "Where," says he,
"the fact of agency has been proved, either expressly or presumptively,
the act of the agent, coextensive with the authority, is the act of the
principal, whose mere instrument he is; and then, whatever the
agent says within the scope of his authority, the principal says, and
evidence may be given of such acts and declarations as if they had been
actually done and made by the principal himself." * * *
Opinion certified to the Circuit Court.
GARTH v. HOWARD & FLEMING.
(Court of Common Pleas, 1S32. 8 Bing. 451.)
Detinue for plate. Plea, general issue. At the trial before Tindal,
C. J., it appeared that Howard had, without authority, pawned, for
i200., certain plate belonging to the plaintiff. The defendant, Fleming,
was a pawnbroker; but the only evidence to show that the plate had
ever been in his possession, was a witness, who stated that, at the house
of the plaintiff's attorney, he heard Fleming's shopman say that it was
a hard case, for his master had advanced all the money on the plate
at 5 per cent.
This evidence being objected to, was received, subject to a motion
to this Court ; and a verdict having been given for the plaintiff.
Andrews, Serjt., obtained a rule nisi for a new trial. 37
Tixdal, C. J. The rule in this case has been obtained upon two
distinct grounds; but it is unnecessary to give an opinion upon any
other than this, namely, whether the declaration of the shopman of the
defendant Fleming, that the goods were in the possession of his master,
was admissible : for it is clear that, unless Fleming is to be affected by
such declaration, he is entitled to the verdict upon the general issue,
non detinet. If the transaction out of which this suit arises had been
one in the ordinary trade or business of the defendant as a pawnbrok-
er, in which trade the shopman was agent or servant to the defendant,
a declaration of such agent that his master had received the good?,
might probably have been evidence against the master, as it might be
held within the scope of such agent's authority to give an answer to
such an inquiry made by any person interested in the goods deposited
with the pawnbroker. In ,! iat case, the rule laid down by the Master of
the Rolls in the case of Fairlie v. Hastings, 10 Ves. 128, which may be
regarded as the leading case on this head of evidence, directly applies.
But the transaction with Fleming appears to us, not a transaction in
his business as a pawnbroker, but was a loan by him as by any other
lender of money at 5 per cent. And there is no evidence to show the
agency of the shopman in private transactions unconnected with the
business of the shop. I doubted much at the time whether it could be
«>7 Statement condensed.
Sec. 2) RECOGNIZED EXCEPTIONS 527
received, and intimated such doubt by reserving the point ; and now,
upon consideration with the Court, am satisfied that it is not admissible.
It is dangerous to open the door to declarations of agents, beyond what
the cases have already done. The declaration itself is evidence against
the principal, not given upon oath : it is made in his absence, when he
has no opportunity to set it aside, if incorrectly made, by any observa-
tion, or any question put to the agent; and it is brought before the
Court and jury frequently after a long interval of time. It is liable,
therefore, to suspicion originally, from carelessness or misapprehension
in the original hearer ; and again to further suspicion, from the faith-
lessness of memory in the reporter and the facility with which he may
give an untrue account. Evidence, therefore, of such a nature, ought
always to be kept within the strictest limits to which the cases have
confined it; and as that which was admitted in this case appears to
us to exceed those limits, we think there ought to be a new trial.
Rule absolute.
HANEY v. DONNELLY.
(Supreme Judicial Court of Massachusetts, 1S59. 12 Gray, 361.)
Action of tort by an infant, by his father and next friend, against
the defendant, for breaking the plaintiff's leg on the 2d of Julv, 1855.
Writ dated May 16, 1856.
At the trial in the superior court of Suffolk at March term, 1857,
before Nash, J., it appeared that the plaintiff lived with his father.
The defendant offered in evidence a conversation between him and
Patrick Haney, the father, on the 3d of July, 1855, (at which time the
defendant said he was first informed of the accident,) upon the sub-
ject of the injury suffered by the plaintiff, and upon the question by
whom it was occasioned ; and the defendant desired to put in all that
was said by Patrick at that time on that subject; contending that he
was then acting as agent of the plaintiff. But the judge excluded it.
The defendant was also asked by his counsel, ''Who was present at
the conversation, when information of the accident was communicated
to you?" But it not being claimed that plaintiff was present, the judge
excluded this evidence also. A verdict was returned for the plaintiff,
and the defendant alleged exceptions.
Merrick, J. 98 There is no ground upon which the defendant's
exceptions can be sustained. The declarations and statements of the
plaintiff's father, which he offered to put in evidence, were rightly re-
jected, because it had not been made to appear that he had, up to the
time of the occurrence of the conversation proposed to be proved,
ever been appointed or recognized as the agent of the plaintiff, or au-
thorized to speak on any subject on his account or in his behalf. Be-
9S Part of opiiikm omitted.
528 HEARSAY (Ch.
fore anything said or done by a supposed agent can be admitted in
evidence to affect the rights of his alleged principal, the fact of agency
must first be satisfactorily established, and it cannot be proved merely
by his own admission or assertions. 2 Stark. Ev. (1st Amer. Ed.) 55;
1 Greenl. Ev. § 114. He may be called as a witness and the agency
may be shown by his testimony. But his statements, declarations and
admissions, made out of court, stand on different ground, and are
never to be received as evidence for such purpose. They are to be
considered and treated as mere hearsay, and are of course not admis-
sible when offered in evidence as means or instruments of proof. The
defendant could not therefore establish the fact of the agency of the
father by proof of anything said by him ; and he did not show it by any
other positive or circumstantial evidence in the case. From the facts
which were proved, as reported in the bill of exceptions, and which
were adverted to by the defendant's counsel in his argument in sup-
port of the exceptions as being sufficient to justify an inference to
that effect, no such deduction can be legitimately . or legally
drawn. * * *
Exceptions overruled.
PEOPLE v. DAVIS.
(Court of Appeals of New York, 1S74. 56 N. T. 95.)
Error to the General Term of the Supreme Court in the third ju-
dicial department to review order reversing a judgment of the Court
of Oyer and Terminer of the county of Otsego, entered upon a verdict
convicting defendant in error of a felony, upon an indictment under
the statute "for the better prevention of the procurement of abor-
tions," etc. (chapter 181, Laws of 1872.) Said order also granted
a new trial.
Reported below, 2 Thomp. & C. 212. 1
Grover, J. * * * The counsel for the accused excepted to the
ruling of the court admitting evidence of the statement of the deceased,
in the absence of the accused, as to what was done at the doctor's office
upon the occasion of a ride she took with him. This ruling is sought
to be sustained upon the ground, first, that it was part of the res gestae ;
and second, that it was competent as the act or declaration of a co-
conspirator, while engaged in the purpose of the conspiracy. The case
shows that the deceased, in company with the prisoner, left her resi-
dence, in his buggy, and was absent several hours ; that he brought her
back, and she came into the house; that the prisoner did not come in;
that immediately after she came in, in answer to inquiries from her
stepmother, she made the statement in question, telling what had been
done by the doctor at his office, and how he did it, and exhibited cer-
' utement condensed and purl oi opinion oinilted.
Sec. 2) RECOGNIZED EXCEPTIONS 529
tain medicine which she said the doctor gave her, and stated what
he told her as to taking it when her pains came on. * * *
It is insisted that the statement was competent, as being the dec-
laration of a co-conspirator. The evidence was such as to warrant the
conclusion that the prisoner and the deceased had agreed or conspired
together to procure the miscarriage of the latter; that in the prose-
cution of this purpose they went away from the residence of the de-
ceased together, in the buggy of the prisoner. The counsel for the
prisoner insists that the deceased was not an accomplice but a victim,
and cites Dunn v. People [29 N. Y. 523, 86 Am. Dec. 319] in support
of the position. This has no bearing upon the question under consid-
eration. Irrespective of the ethical view of the conduct of the woman,
section 2 of the statute makes her acts highly criminal. The perpe-
tration of the crimes prohibited by the statute may be the subject of a
conspiracy, and the female subject of the acts a co-conspirator. The
general rule is, that when sufficient proof of a conspiracy has been giv-
en to establish the fact prima facie in the opinion of the judge, the acts
and declarations of each conspirator in the furtherance of the com-
mon object are competent evidence against all. 1 Whart. Crim. Law,
702; 3 Greenl. Ev. 94; 1 Taylor, Ev. 527. But to make the declara-
tion competent it must have been made in the furtherance of the pros-
ecution of the common object, or constitute a part of the res gestae
of some act done for that purpose. A mere relation of something al-
ready done for the accomplishment of the object of the conspirators is
not competent evidence against the others. 1 Taylor, Ev. 542, § 530.
We have already seen that the statement in question was a mere narra-
tion of what had been done. True, she stated that the medicine ex-
hibited was to be taken by her thereafter, but this was not for the pur-
pose of producing her miscarriage, but to protect her from the dan-
ger to be apprehended therefrom. The means to produce the mis-
carriage, upon the theory of the prosecution, had already been applied.
There remained nothing further to be done to effect this object. The
conspiracy was therefore ended. Had it been shown that the medicine
was to be taken to aid in producing the miscarriage, what was said in
respect to it would have been admissible. This was not shown, and the
entire statement was inadmissible. * * *
Order (granting new trial) affirmed. 2
2 In the conspiracy cases it frequently appears to be assumed that all that
is necessary is that the declaration or statement should have been made while
the conspiracy existed; perhaps the expression, "dum fervet opus," so fre-
quently used, may account for this notion. — Ed.
Hint.Ev.— 34
530 HEARSAY (Ch. 3
WARNER v. MAINE CENT. R. CO.
(Supreme Judicial Court of Maine, 1913. Ill Me. 149, 88 Atl. 403, 47 L. R. A.
[N. S.] 830.)
Action for damages for the destruction of certain property by fire
alleged to have been set out by defendant's locomotive. The station
agent's letter reporting the matter to the general manager was admit-
ted on behalf of the plaintiff, who obtained a verdict in the court be-
low. 3
King, J. * * * We are of opinion that the letter was both in-
competent and prejudicial to the defendant, and should not have been
received in evidence.
The rule governing the admission of declarations of an agent as
evidence against his principal has been frequently stated by courts and
text-writers, though in somewhat varying language. It is founded upon
' the idea of the legal identity of the agent and the principal, which pre-
supposes authority from the principal to the agent to make the declara-
tions. That authority may be expressly given as to make some specific
declaration, or it may be derived by implication from authority given
to the agent to do a certain act for the principal, in the doing of which
the declaration is made. While acting within the scope of his authority,
and in the execution of it, the agent is the principal, and his declara-
tions and representations in reference to and accompanying his act are
therefore admissible in evidence against the principal in the same man-
hier as if made by the principal himself.
The language of Sir Wm. Grant in the leading case of Fairlie v.
Hastings, 10 Ves. 123, is often quoted as a correct statement of the
principles upon which the declarations of an agent can be received
as evidence against his principal. In that opinion he said : "What the
agent has said may be what constitutes the agreement of the principal,
or the representations or statements may be the foundation of or the
inducement to the agreement. Therefore, if writing is not necessary
by law, evidence must be admitted to prove the agent did make that
statement or representation. So, in regard to acts done, the words
with which those acts are accompanied frequently tend to determine
their quality. The party, therefore, to be bound by the act must be af-
fected by the words. But, except in one or the other of those ways, I
do not know how what is said by an agent can be evidence against his
principal."
Prof. Greenleaf says : "It is to be observed that the rule admitting
the declarations of the agent is founded upon the legal identity of the
agent and the principal, and therefore they bind only so far as there
is authority to make them. Where this authority is derived by impli-
cation from authority to do a certain act, the declarations of the agent
i Statement condensed and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 5.°,1
to be admissible must be a part of the res gestae." Greenleaf on Ev.
(15th Ed.) § 114.
Mr. Mechem, in his work on Agency (section 714), states: "And
(3) the statements, representations, or admissions must have been made
by the agent at the time of the transaction, and 'either while he was ac-
tually engaged in the performance, or so soon after as to be in reality
a part of the transaction. Or, to use the common expression, they
must have been a part of the res gestae. If, on the other hand, they
were made before the performance was undertaken, or after it was
completed, or while the agent was not engaged in the performance, or
after his authority had expired, they are not admissible. In such case
they amount to no more than the narrative of a past transaction, and
do not bind the principal."
Our own court has said : "The declarations, representations, or ad-
missions of an agent authorized to make a contract made as induce-
ments to or while making the contract are admissible as evidence
against his principal. They are also admissible as evidence against
him, when made by his agent accompanying the performance of any
act done for him. They are not admissible, and do not bind the prin-
cipal, when not made as before stated, but at a subsequent time."
Franklin Bank v. Steward, 37 Me. 519, 524.
In Packet Co. v. Clough, 20 Wall. 528, 540 (22 L. Ed. 406), the Su-
preme Court, by Mr. Justice Strong, said : "It is true that whatever
the agent does in the lawful prosecution of the business intrusted to
him is the act of the principal, and the rule is well stated by Mr. Jus-
tice Story that, 'where the acts of the agent will bind the principal,
there his representations, declarations, and admissions respecting the
subject-matter will also bind him, if made at the same time, and con-
stituting part of the res gestae.' A close attention to this rule, which
is of universal acceptance, will solve almost every difficulty."
Applying this rule to the present case, how does it stand? The thing
of which the plaintiff's complain was that the defendant's locomotive
engine emitted sparks or cinders, by which the buildings burned were
set on fire. That, and that alone, constituted the alleged cause of ac-
tion. That was the res gestae. The station agent, Hayes, had no part
in that. In writing the letter the next day after the fire he was doing
no act for the defendant which formed a part of the particular trans-
action from which its alleged liability arose. His statements contain-
ed in the letter amount to no more than his narrative and opinion of a
past transaction, and for that reason could not affect his principal.
But it is contended that the letter was admissible because the agent
in writing it was performing a duty required of him by the company to
report such occurrences. Granted that he was, upon what principle
could it be held that the defendant would be bound by his statements
and admissions contained in the report, without proof that it adopted
those statements and admissions as its own, except for the purpose of
charging it with notice thereof ? As stated in Carroll v. East Tennessee,
532 HEARSAY (Ch. 3
V. & G. Ry. Co., 82 Ga. 452, 10 S. E. 163, 6 L. R. A. 214: "It surely
cannot be sound law to hold that by collecting information, whether
under general rules or special orders, and whether from its own of-
ficers, agents, and employes or others, a corporation acquires and takes
such information at the peril of having it treated as its own admis-
sions, should litigation subsequently arise touching the subject-matter."
In that case, which was an action to recover damages for personal
injuries alleged to have been caused by the defendant's negligence, re-
ports of the accident, made to the general manager of the company, by
the superintendent and by the conductor of the train, supported by his
affidavit and that of several others, embracing the engineer, fireman,
flagman, and brakeman, were admitted in evidence on behalf of the
plaintiff, over the defendant's objection. But it was held on exceptions
that they were inadmissible.
Further, it needs no argument to sustain the proposition that Mr.
Hayes had no authority by virtue of his office as station agent to bind
the railroad company by an admission of its liability as alleged in this
case. If authority in him to make such an admission is claimed, it
should be shown by competent proof, for it cannot be inferred as with-
in the scope of his authority as station agent.
In the case of Randall, Ex'r, v. Northwestern Tel. Co., 54 Wis. 140,
UN. W. 419, 41 Am. Rep. 17, which was a suit to recover damages
for an injury occasioned, as alleged, by the negligence of the defendant
in not keeping its line in proper repair, whereby the plaintiff while
traveling along the highway became entangled in its wire, and was in-
jured, the admission of the following telegram from the superintendent
of the telegraph company was held reversible error: "To Gen. George
C. Ginty : Many thanks for your kind words for us to the gentlemen
who were hurt by our old wire. I hope to be with you tomorrow, and
see them ; but I must go home. Have them make a bill and send me.
We will pay any reasonable bill. My instructions, if obeyed, would
have prevented the accident ; but the repairman neglected his duty, and
we must pay the penalty." The court there said : "In the absence of
any proof showing that the superintendent was authorized by the com-
pany to bind it by his admissions, we do not think the court was justi-
fied in assuming that he had such power. He was a competent witness
for the plaintiff, and, though holding a high position as an agent of the
defendant, he was still only an agent, and for the purpose of admitting
away the rights of the defendant he cannot be presumed to have all the
powers of the corporation. * * * The authority to make the ad-
mission for the principal or corporation is not to be inferred from the
position or rank of the party making the same. If such authority is
alleged to exist, it must be shown by competent proofs."
In the case at bar the letter was introduced by the plaintiff as affirma-
tive evidence against the defendant, as an admission of liability binding
upon the defendant. But according to well established principles of
law it was incompetent fur such purpose, and we are constrained to the
SeC. 2) RECOGNIZED EXCEPTIONS 533
opinion that its admission was prejudicial to the defendant. We must
hold, therefore, that there was reversible error in admitting the letter in
evidence. This conclusion makes it unnecessary to consider the other
exceptions or motion.
In each case the entry will be :
Exceptions sustained. 4
(B) Confessions 8
FELTON'S CASE.
(Court of King's Bench, 1628. 3 How. St. Trials, 367.)
[The defendant was under arrest for the murder of the Duke of
Buckingham, and was brought up for examination.]
Afterwards Felton was called before the council, where he con-
fessed much of what is before mentioned concerning his inducement to
the murder : the council much pressed him to confess who set him on
work to do such a bloody act, and if the Puritans had no hand therein ;
he denied they had, and so he did to the last, that no person whatso-
ever knew anything of his intentions or purpose to kill the duke, that
he revealed it to none living. Dr. Laud, bishop of London, being
then at the council-table, told him if he would not confess, he must
go to the rack. Felton replied, if it must be so he could not tell whom
he might nominate in the extremity of torture, and if what he should
say then must go for truth, he could not tell whether his lordship
(meaning the bishop of London) or which of their lordships he might
name, for torture might draw unexpected things from him : after this
he was asked no more questions, but sent back to prison. The council
then fell into debate, whether by the law of the land they could justify
the putting him to the rack ; the King being at council said, before any
such thing should be done, let the advice of the judges be had therein,
whether it be legal or no, and afterwards his majesty the 13th of No-
vember, 4 Car., propounded the question to Sir Tho. Richardson, Lord
Chief Justice of the Common Pleas, to be propounded to all the jus-
tices, (viz.) Felton now a prisoner in the Tower having confessed that
he had killed the duke of Buckingham, and said he was induced to this,
partly for private displeasure, and partly by reason of remonstrance
in parliament, having also read some books, which, he said, defended
that it was lawful to kill an enemy to the republic, the question there-
fore is, whether by the law he might not be racked, and whether there
were any law against it (for said the king) if it might be done by
law, he would not use his prerogative in this point, and having put
* For a collection of the cases on this point, see Atchison, T. & S. F. Ry.
Co. v. Burks, 18 L. R. A. (N. S.) 231, annotated (190S).
s For the rule that a confession alone is not sufficient to prove the corpus
delicti, see Wistrand v. People, 213 111. 72, 72 N. E. 748 (1904), post, p. 917.
534 HEARSAY (Ch. 3
this question to the Lord Chief Justice, the king commanded him to
demand the resolutions of all the judges.
First the Justices of Serjeants Inn in Chancery-lane did meet and
agree, that the king may not in this case put the party to the rack. And
the 14th of November all the justices being assembled at Serjeants Inn
in Fleet-street, agreed in one, that he ought not by the law to be tor-
tured by the rack, for no such punishment is known or allowed by our
law.
And this in case of treason was brought into this kingdom in the
time of Henry the 6th ; note Fortescue for this point, in his book 'de
laudibus legum Angliae,' see the preamble of the act 28 H. 8 for the
trial of felony, where treasons are done upon the sea, and statute 14
Ed. 3, G ca. of jailors or keepers, who by duress make the prisoners to
be approvers.
On Thursday the 27th of November, Felton was removed from the
Tower to the Gate-House, in order to his trial, and was the same day
brought by the sheriffs of London to the King's Bench bar, and the in-
dictment being read, he was demanded whether he were guilty of the
murder therein mentioned : He answered, he was guilty in killing the
duke of Buckingham, and further said, that he did deserve death for
the same, though he did not do it out of malice to him. So the court
passed sentence of death upon him ; whereupon he offered that hand
to be cut off that did the fact; but the court could not. upon his own
offer, inflict that further punishment upon him : Nevertheless the king
sent to the judges to intimate his desire, that his hand might be cut
off before execution. But the court answered, that it could not be ;
for in all murders, the judgment was the same, unless when the statute
of 25 E. 3, did alter the nature of the offence, and upon a several indict-
ment, as it was in queen Elizabeth's time, when a felon at the bar flung
a stone at a judge upon the bench, for which he was indicted, and his
sentence was to have his hand cut off, which was' accordingly done.
And they also proceeded against him upon the other indictment for
felony, for which he was found guilty, and afterwards hanged. And
Felton was afterwards hung up in chains, in manner as is usual upon
notorious murders.
« "And if it happen that the keeper of the prison, or underkeeper, by too
great duress of imprisonment, and by pain, make any prisoner that he hath
in his ward to become an appellor against his will, and thereof be attainted,
lie shall have jud^oent of life and of member."
Sec. 2) RECOGNIZED EXCEPTIONS 535
REX v. JONES.
(Court of Criminal Appeal, 1S09. Russ. & Ry. 152.)
The prisoner was tried before Mr. Justice Chambre, at the Win-
chester Lent assizes, in the year 1809, upon an indictment for stealing
money to the amount of £1. 8s., the property of John Webb, a private
in the Somerset Militia.
A part of the evidence was as follows :
The prosecutor, who, as well as others, had been in pursuit of the
prisoner, found him, at last, in a room of a public house, in custody of
a constable, to whom he had been delivered by a serjeant of marines,
who had apprehended him. On finding him there, the prosecutor asked
him for the money that he, the prisoner, had taken out of the prose-
cutor's pack, upon which the prisoner took lis. 6 1 / 4d. out of his pocket,
and -said it was all he had left of it. The Serjeant (who was in the
same room with the constable and the prisoner) gave the same account
of the conversation and of the production of the money by the pris-
oner; but he added, that Webb the prosecutor, before the money was
produced, said "he only wanted his money, and if the prisoner gave
him that, he might go to the devil if he pleased."
The money (lis. 6y 2 d.) was taken charge of by the serjeant.
The learned judge left the whole of this evidence for the considera-
tion of the jury, and they found the prisoner guilty.
In Easter term, 29th of April, 1809, the majority of the judges
present, viz., Macdonald, C. B., Chambre, J., Lawrence, J., LE
Blanc, J., and Heath, J., held that the evidence was not admissible,
and the conviction wrong. Wood, B., Grose, J., Mansfield, C. J.
of C. B., contra. Lord Ellenborough, dubitante.
REX v. JENKINS.
(Court of Criminal Appeal, 1S22. Russ. & R. 492.)
The prisoner was convicted before Mr. Justice Bayley (present Mr.
Justice Park), at the Michaelmas Old Bailey sessions, in the year
1822, of stealing several gowns and other articles. He was induced
by a promise from the prosecutor to confess his guilt, and, after that
confession, he carried the officer to a particular house as and for the
house where he had disposed of the property, and pointed out the
person to whom he had delivered it. That person denied knowing any-
thing about it, and the property was never found. The evidence of
the confession was not received; the evidence of his carrying the offi-
cer to the hoise as above-mentioned was; but as Mr. Justice Bayley
thought it questionable whether that evidence was rightly received, he
stated the point for the consideration of the judges.
536 HEARSAY (Ch. 3
In Michaelmas term, 1822, the case was considered by 'the judges,
who were of opinion that the evidence was not admissible, and that
the conviction was therefore wrong. The confession was excluded, be-
cause being made under the influence of a promise it could not be relied
upon, and the acts of the prisoner, under the same influence, not being
confirmed by the finding of the property, were open to the same objec-
tion. The influence which might produce a groundless confession,
might also produce groundless conduct. 7
REG. v. MOORE.
(Court of Criminal Appeal, 1852. 2 Denison, Crown Cas. 522.)
The prisoner was tried at the last Assizes for Sussex before Parke,
B., on the coroner's inquisition, for wilful murder of her new b'orn
child. There was an indictment also against her for the same offence.
She was found guilty of the misdemeanor of concealing the birth of
her child.
There was offered in evidence against her a confession made by her,
in the presence of her mistress, to a surgeon who was attending her,
of her having strangled her child with a thread, and placed the dead
body in a privy, where it was found, with the thread around its neck.
Her mistress had told her, before the surgeon came in, that "she had
better speak the truth," and, in answer, she said she would tell it to
the surgeon.
An objection was taken, that any subsequent confession was inad-
missible. After consulting Coleridge, J., his Lordship received the evi-
dence, being of opinion that in this case her husband, not being the
prosecutor, nor the offence in any way connected with the manage-
ment of the house, the prisoner's mistress could not be considered as
having any control over the prosecution so as to raise a presumption
that the inducement held out by her would be likely to cause her to
tell an untruth.
The prisoner was acquitted of the murder, because the jury believed
that she was in such a state of mind that she did not know what she
was about at the time.
The learned Baron, therefore, requested the opinion of the Judges,
whether the evidence was admissible.
On the 24th April, A. D. 1852, this case was argued before Pollock,
C. B., Parke, B., Erie, J., Williams, J., and Crompton, J.
On the 14th June, A. D. 1852, the following Judges being present,
Jervis, C. J., Parke, B., Alderson, B., Maule, J., Cresswell, J., Piatt,
];., Talfourd, J., and Martin, B., the following judgment was read by
■ it had been held In 178.3, in Warlckshall's Case, Leach, 263, that, where
stolen property Is recovered as the result of a confession, that fact may be
ed, though the confession Itself may be inadmissible.
Sec. 2) RECOGNIZED EXCEPTIONS 537
Parke, B. The cases on this subject have gone quite far enough,
and ought not. to be extended.
It is admitted that confessions ought to be excluded unless volun-
tary, and the Judge, 8 not the jury, ought to determine whether they
are so.
One element in the consideration of this question as to their being
voluntary is, whether the threat or inducement was such as to be
likely to influence the prisoner. Perhaps it would have been better to
have held (when it was determined that the Judge was to decide
s That the judge conclusively settles the question of admissibility, see State
r. Brister, ante, p. 120 ; Burton v. State, 107 Ala. 108, 18 South. 284 (1894) ;
State v. Brennan, 164 Mo. 4S7, 65 S. W. 325 (1901) ; State v. Monieh, 74 N. J.
Law, 522. 64 Atl. 1016 (1906).
Contra: Fuller. C. J., in Wilson v. United States, 162 TJ. S. 613, 16 Sup. Ct.
895, 40 L. Ed. 1090 (1896) : "When there is a conflict of evidence as to whether
a confession is or is not voluntary, if the court decides that it is admissible,
the question may be left to the jury with the direction that they should re-
ject the confession if upon the whole evidence they are satisfied it was not
the voluntary act of the defendant. Commonwealth v. Preece, 140 Mass 276
5 N. E. 494 (1S85) ; People v. Howes, 81 Mich. 396, 45 N. W. 961 (1890) ; Thom-
as v. State. 84 Ga. 613, 10 S. E. 1016 (1890) ; Hardy v. United States, 3 Dist.
Col. App. 35 (1S93)."
Cave, J., in Regina v. Thompson, [1893] 2 Q. B. D. 12: " * * * 'The ma-
terial question consequently is whether the confession has been obtained by
the influence of hope or fear; and the evidence to this point being in its na-
ture preliminary, is addressed to the judge, who will require the prosecutor
to show affirmatively, to his satisfaction, that the statement was not made
under the influence of an improper inducement, and who, in the event of any
doubt subsisting on this head, will reject the confession.' The case cited in
support of this proposition is Reg. v. Warringham [2 Den. C. C. 447, note
(1851)], where Parke, B., says to the counsel for the prosecution: 'You are
bound to satisfy me that the confession which you seek to use against the
prisoner was not obtained from him by improper means, I am not satisfied
of that ; for it is impossible to collect from the answers of this witness wheth-
er such was the case or not' Parke, B., adds, *I reject the evidence of ad-
mission, not being satisfied that it was voluntary.' * * * If these princi-
ples and the reasons for them are, as it seems impossible to doubt, well found-
ed, they afford to magistrates a simple test by which the admissibility of a
confession may be decided. They have to ask, Is it proved affirmatively that
the confession was free and voluntary — that is, Was it preceded by any in-
ducement to make a statement held out by a person in authority? If so, and
the inducement has not clearly been removed before the statement was made,
evidence of the statement is inadmissible."
Compare Sherwood, J., in State v. Patterson, 73 Mo. 695 (1881): "Green-
leaf, to whose work we are cited, states: 'Before any confession can be re-
ceived in evidence in a criminal case, it must be shown that it was voluntary.'
1 Greenleaf, Ev. § 219. This assertion in all its broadness is not supported by
the authorities. Wharton lays down the rule quite differently: In order to
exclude evidence of a prisoner's confession, it must appear aflirmatively that
some inducement to confess was held out to him, by or in the presence of
some one having authority.' 1 Am. Crim. Law, § 698. Roscoe is thought to
state the rule more accurately. He says: 'For the purpose of introducing a
confession, it is unnecessary in general, to negative any promise or induce-
ment, unless there is good reason to suspect that something of the kind has
taken place.' Roscoe, Crim. Ev. 54; Id. 40: Rex v. Clewes, 4 C. & P. 221
[1830] ; Whart. Crim. Ev. § 689 ; 6 St. Tr. S07 [1666] ; Reg. v. Garner, 1 Den.
C. C. 329 [1S48]; Reg. v. Williams. 3 Kuss. on Crimes, 432 [1811]. In the case
last cited Taunton, J., said: 'A confession is presumed to be voluntary unless
the contrary is shown, and as no threat or promise is proved to have been
made by the constables, it is not to be presumed.' "
538 HEARSAY (Ch. 3
whether the confession was voluntary), that in all cases he was to
decide that point upon his own view of all the circumstances, including
the nature of the threat or inducement, and the character of the person
holding it out together, not necessarily excluding the confession on
account of the character of the person holding out the inducement
or threat.
But a rule has been laid down in different precedents by which we
are bound, and that is, that if the threat or inducement is held out
actually or constructively by a person in authority, it cannot be re-
ceived, however slight the threat or inducement, and the prosecutor,
magistrate, or constable, is such a person, and so the master or mis-
tress may be.
If not held out by one in authority, they are clearly admissible.
The authorities are collected in Mr. Joy's very able Treatise on Con-
fessions and Challenges, p. 23.
But in referring to the cases where the master or mistress have been
held to be persons in authority, it is only when the offence concerns
the master or mistress, that their holding out the threat or promise
renders the confession inadmissible.
In Rex v. Upchurch, R. & M. C. C. 865, the offence was arson of
the dwelling-house, in the management of which the mistress took a
part. Reg. v. Taylor, 8 C. & P. 703, is to the like effect; so Rex
v. Carrington, 109; Rex v. Howell, 534; so where the threat was
used by the master of a ship to one of the crew, and the offence com-
mitted on board the ship by one of the crew towards another ; and in
that case also the master of the ship threatened to apprehend him, and
the offence being a felony, and a felony actually committed, would
have a power to do so, on reasonable suspicion that the prisoner was
guilty. In Rex v. Warringham, tried before me, Surrey Spring As-
sizes, 1851, the confession was in consequence of what was said by a
mistress of the prisoner, she being in the habit of managing the shop,
and the offence being larceny from the shop. This appears from my
note.
In the present case, the offence of the prisoner, in killing her child
or concealing its dead body, was in no way an offence against the
mistress of the house. She was not the prosecutrix then, and there
was no probability of herself or the husband being the prosecutor of
of an indictment for that offence ; in practice the prosecution is always
the result of a coroner's inquest. Therefore, we are clearly of opinion
that the confession was properly received.
Conviction confirmed. 8
• a ruling to the same effect had been made in tho earlier case of Rex v.
Row, i & Ryan, i;~>:: (1809), where certain friends of the prisoner had
urged him to consider bis family and tell the truth.
Sec. 2) RECOGNIZED EXCEPTIONS 539
REG. v. BALDRY.
(Court of Criminal Appeal, 1S52. 2 Denison, Crown Cas. 430.)
While the defendant was in custody on a charge of poisoning his
wife, a constable having charge of him, told him that he need not say
anything to criminate himself, what he did say would be taken down
and used as evidence against him. The prisoner thereupon made a
confession, which was received at the trial. Lord Campbell reserved
the question for the Court of Criminal Appeal. During the course of
the argument counsel for the prisoner advanced the proposition that
" 'The law cannot measure the force of the influence used, or decide
upon its effect upon the mind of the prisoner, and therefore, excludes
the declaration if any degree of influence has been exerted.' It is
gathered from this that if any inducement — of the slightest description
— whereby any worldly advantage to himself as a consequence of
making a statement, be held out to a prisoner, the law presumes the
statement to be untrue." 10
Pollock, C. B. You are overstating it. The law does not pre-
sume that it is untrue ; but rather that it is uncertain whether a state-
ment so made is true.
Lord Campbell, C. J. I doubt whether the rule excluding con-
fessions made in consequence of an inducement held out, proceeds
upon the presumption that the confession is untrue; but rather that
it would be dangerous to receive such evidence, and that for the due
administration of justice it is better that it should be withdrawn from
the consideration of the jury.
Parke, B. I entirely agree with the Lord Chief Baron and with
the view taken by Lord Campbell at the trial. The prisoner was
tried upon an indictment charging him with having administered poison
to his wife with intent to murder her. On the part of the prosecution
a police constable was called, whose evidence thus began : "I went to
the prisoner's house on the 17th December. I saw the prisoner. Dr.
Vincent, and Page, another constable, were with me. I told him what
he was charged with ; he made no reply, and sat with his face buried
in his handkerchief. I believe he was crying. I said he need not
say anything to criminate himself, what he, did say would be taken
down and used as evidence against him." Objection was made on
behalf of the prisoner that what he then said was not admissible. His
Lordship thought that the words of the statute were merely a direction,
and that although the caution of the constable differed from that di-
rected by 11 & 12 Vict. c. 42, § 18, to be given by the justice to the
prisoner in the word "will" instead of "may," it did not amount to
any promise or threat to induce the prisoner to confess; that it could
io Statement condensed and concurring opinions omitted.
540 HEARSAY (Ch. 3
have no tendency to induce him to say anything untrue; and that in
spite of it, if he did afterwards confess, the confession must be con-
sidered voluntary. In that I entirely concur, and I think that the
reasons given by the Lord Chief Justice are satisfactory. By the law
of England, in order to render a confession admissible in evidence
it must be perfectly voluntary ; and there is no doubt that any in-
ducement in the nature of a promise or of a threat held out by a
person in authority, vitiates a confession. The decisions to that effect
have gone a long way ; whether it would not have been better to have
allowed the whole to go to the jury, it is now too late to inquire, but
I think there has been too much tenderness towards prisoners in this
matter. I confess that I cannot look at the decisions without some
shame when I consider what objections have prevailed to prevent the
reception of confessions in evidence ; and I agree with the observation
of Mr. Pitt Taylor, that the rule has been extended quite too far, and
that justice and common sense have, too frequently, been sacrificed
at the shrine of mercy. We all know how it occurred. Every Judge
decided by himself upon the admissibility of the confession, and he
did not like to press against the prisoner, and took the merciful view
of it. If the question were res nova I cannot see how it could be
argued that any advantage is offered to a prisoner by his being told
that what he says will be used in evidence against him. I have the
most unfeigned respect for Coleridge, J., and Maule, J., and in defer-
ence to their decisions, I offered to reserve a case at Aylesbury, but
I cannot concur in their judgment. I have reflected on Reg. v. Drew
and Reg. v. Morton, and I have never been able to make out that
any benefit was held out to the prisoner by the caution employed in
those cases. We ought therefore to be extremely obliged to Lord
Campbell for having reserved the point in order that it might be
settled.
Conviction affirmed.
REG. v. JARVIS.
(Court of Crown Cases Reserved, 1SG7. L. R. 1 Crown Cas. Res. 9G.)
The following case was stated by the Recorder of London :
At a session of the Central Criminal Court, held on the 8th of
July, 1867, and following days, Frank Jarvis, Richard Bulkley, and
Wilford Bulkley, were tried before me on an indictment, for feloni-
ously stealing 138 yards of silk and other property of William Leaf
and others, the masters of Jarvis. There was a second count in the in-
dictment for feloniously receiving the same goods. William Laidler
Leaf was examined, and said: The prisoner Jarvis was in my employ.
' mi the 13th of .May we called him up, when the officers were there,
into our private counting house. I said to him, "Jarvis, I think it is
Sec. 2) RECOGNIZED EXCEPTIONS 54J
right that I should tell you that, besides being in the presence of my
brother and myself, you are in the presence of two officers of the
police ; 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." I produced a
letter to him, which he said he had not written ; and I then said, "Take
care, Jarvis ; we know more than you think we know." I do not be-
lieve I said to him, "You had better tell the truth."
Counsel for the prisoner Jarvis objected to any statement of his
made after the above was said being received in evidence, and re-
ferred to R. v. Williams, 2 Den. C. C. 433; Reg. v. Warringham, 15
Jur. 318; 2 Den. C. C. 447, note; Reg. v. Garner, 1 Den. C. C. 329;
R. v. Shepherd, 7 C. & P. 579; and Reg. v. Millen, 3 Cox's Crim. Cas.
507.
Counsel for the prosecution referred to Reg. v. Baldry, 2 Den.
C. C. 430; Reg. v. Sleeman, Dears. C. C. 249; and Reg. v. Parker,
Leigh & Cave, C. C. 42. I decided that the statement was admissible.
The jury found Jarvis guilty, adding that they so found upon his own
confession, but they thought that confession prompted by the inquiries
put to him. They acquitted the other two. At the request of counsel
for Jarvis I reserved for the Court for the consideration of Crown
Cases Reserved the question, — Whether I ought to have admitted the
statements of the prisoner in evidence against him?
Kelly, C. B. While it is our duty to watch with a jealous cau-
tion the rules of law as to inducements to confess, for the sake of pub-
lic justice we must not allow consideration for prisoners to interfere
with the rules or decisions of courts of law. In this case, do the
words fairly considered import either a threat of evil or a promise of
good ? They are these : "Jarvis, I think it is right that I should tell you
that, besides being in the presence of my brother and myself, you are
in the presence of two officers of the police ; and I should advise you
that to any question that may be put to you you will answer truth-
fully." Pausing at these words, they would seem to operate as a
warning rather than a threat, as advice given by a master to a serv-
ant. What follows ? — "So that, if you have committed a fault, you may
not add to it by stating what is untrue." These words appear to have
been added on moral grounds alone; there was no inducement of
advantage. Under these circumstances, putting no strain one way or
the other, the words amount only to this : "We put certain questions
to you ; I advise you to answer truthfully, only that you may not add
a fault to an offence committed, if any has been committed." With
reference to the last words, "Take care; we know more than you
think we know" — these amount only to a caution. The words, "You
had better tell the truth," seem to have acquired a sort of technical
meaning importing either a threat or a benefit; but they were not
542 HEARSAY (Cll. 3
used in this case. The words that have been used import only advice
on moral grounds.
WiLLES, J. The case would have been different, if it had appeared
that the words used were, "It is better for you to tell the truth."
Conviction affirmed.
STATE v. BROUGHTON.
(Supreme Court of North Carolina, 1S46. 29 N. C. 96, 45 Am. Dee. 507.)
Appeal from the Superior Court of Law of New Hanover County,
at the Fall Term, 1846, his Honor Judge Settle, presiding.
The prisoner was indicted for the murder of Frank De Silva.
The homicide occurred in Wilmington, during the term of New Han-
over Superior Court, and the grand- jury then empannelled were en-
gaged in an enquiry as to the circumstances, character, and perpetra-
tor of the act. At the instance of the grand jury, Broughton was sum-
moned and sworn in Court and sent to them as a witness. On the trial
of the present indictment Mr. Savage, who was at the time the fore-
man of the grand-jury, was called, as a witness for the State, to prove
that the prisoner, on his examination before the grand- jury on that
occasion, charged one Gonzales with the murder of De Silva. The
counsel for the prisoner objected to the examination of Mr. Savage,
as to any matter that occurred before the grand-jury. But the Court
received the witness for the purpose, to which he was called ; and he
stated that the prisoner charged Gonzales with murder and betrayed
unusual anxiety to fix it upon him. 11
Ruffin, C. J. * * * The counsel for the prisoner took the fur-
ther ground here, that it was incompetent to prove the evidence of the
prisoner, because it was in the nature of a confession, which, compelled
by an oath, was not voluntary. It is certainly no objection to the evi-
dence, merely, that the statement of the prisoner was given by him, as
a witness under oath. He might have refused to answer questions,
when he could not do so without criminating himself ; and the very
ground of that rule of law is, that his answers are deemed voluntary
and may be used afterwards to criminate or charge him in another
proceeding, and such is clearly the law. 2 Stark. 28; Wheater's case, 2
.Mood. Cr. Cas. 45. But it is true, that if a prisoner, under examina-
tion as to his own guilt, be sworn, his statement is not evidence; be-
use the statute, Rev. Stat. ch. 35, § 1, (which is taken from that of
Philt and M.J intended to have the party free to admit or deny his
guilt, and the oath deprives him of that freedom — 2 Hawk. PI. 6, ch.
46, § 37 ; Bui. N. P. 242. And we think it was also properly decided
in U ase, C, C. & P. 161, where a magistrate was engaged in
the investigation of a felony, and no one in particular was then charged
ji Statement condensed and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS. 543
with it, and the prisoner and other persons were summoned and sworn
as witnesses, and the prisoner gave evidence, upon which he was com-
mitted for trial, that his examination was not admissible against him.
For plainly it was a case within the reason of the statute; which
could be completely evaded, if, instead of a direct examination of a
suspected person, there could be a general inquisition and every in-
dividual made to betray himself. For that reason the Court would, in
this case, have held, that the evidence given by the prisoner could not
have been used against him, if it purported to confess his guilt and the
grand-jury had founded a presentment on it; for the proceeding before
the grand-jury at the time was in its nature inquisitorial and the wit-
ness was as much the object of it as any other person. But it is al-
together a mistake to call this, evidence of a confession by the prisoner.
It has nothing of that character. It was not an admission of his own
guilt, but, on the contrary, an accusation of another person. That it
was preferred on oath in no way detracts from the inference, that
may be drawn from it unfavourably to the prisoner, as being a false
accusation against another, and thus furnishing, with other things, an
argument of his own guilt.
There was, in our opinion, no error in receiving the evidence.
* * * 12
COMMONWEALTH v. MOREY.
(Supreme Judicial Court of Massachusetts, 1S54. 1 Gray, 461.)
Indictment for breaking and entering in the night the shop of An-
son Chapman in Westhampton, and there stealing bank bills and silver
coin.
At the trial in the court of common pleas, before Mellen, J., "Chap-
man, being called as a witness for the Commonwealth, and to prove
certain confessions of the defendant, testified that after the defendant
was arrested and committed on his complaint, and before the ex-
amination, he visited him at the jail alone, and told him he supposed
he knew what he came for ; the defendant replied that he did ; that he
then said to him, that if he wished for any conversation, he could
have a chance : that the defendant made no reply for the minute or
two ; that he then told him he thought it was better for all concerned
in all cases for the guilty party to confess; that the prisoner then
said he supposed he should have to stay there whether he confessed
i 2 See, also. People v. Molineux, 1GS X. Y. 330, 61 N. E. 2S6. 62 L. R. A. 193
(1901), discriminating between a violation of the defendant's privilege against
self-incrimination, by compelling him to testify, and the use of his voluntary
testimony as a mere witness.
Compare State v. Young, 119 Mo. 495. 24 S. W. 103S (1894) where certain
admissions were obtained from the suspected party on his examination at the
coroner's inquest
State v. Blackburn, 273 Mo. 469, 201 S. W. 96 (191S).
544 HEARSAY (Cll. 3
or not ; that the prosecutor replied he supposed he would, and in his
opinion it would make no difference as to legal proceedings, and that
it was considered honorable in all cases, if a person was guilty, to
confess." The district attorney then proposed to prove the confes-
sions of the defendant made immediately after, to which the defend-
ant objected as incompetent, but they were admitted by the judge. To
this admission the defendant, being convicted, alleged exceptions.
Shaw, C. J. The ground on which confessions made by a party
accused, under promises of favor, or threats of injury, are excluded
as incompetent, is, not because any wrong is done to the accused,
in using them, but because he may be induced, by the pressure of
hope or fear, to admit facts unfavorable to him, without regard to
their truth, in. order to obtain the promised relief, or avoid the threat-
ened danger, and therefore admissions so obtained have no just and
legitimate tendency to prove the facts admitted. The general rule is
well expressed in the passage, cited in the argument, from the case of
State v. Grant, 22 Me. 171. "To exclude the confession, there must
appear to have been held out some fear of personal injury, or hope
of personal benefit, of a temporal nature." Of course, such induce-
ment must be held out to the accused by some one, who has, or who
is supposed by the accused to have, some power or authority to as-
sure to him the promised good, or cause or influence the threatened
injury. Commonwealth v. Taylor, 5 Cush. 606. The general rule of
law seems sufficiently plain and clear, but the great variety of facts
and circumstances, attending particular cases, renders the application
difficult, and each case must depend much on its own circumstances.
In the present case, we think the decision was right, on the facts
stated, and the confessions admissible.
Exceptions overruled. 13
MILLER et al. v. PEOPLE.
(Supreme Court of Illinois, 1SG6. 39 111. 457.)
On writ of error to review the conviction of the defendants, Miller,
Francis, and Barrett, on a charge of robbery. 14
Mr. Justice BreESE. * * * The record shows the confession of
Francis was extorted from him by a high-handed act of violence and
i Brown, J., in State v. Powell, 258 Mo. 239, 167 S. W. 559 [1914]: " * * *
i wimt is necessary to render a confession Involuntary depends, to a large ex-
tent, upon the person from whom such confession is obtained. The age, sex,
ition and past experience of the party must necessarily bo considered.
2 Wharton's Criminal Evidence (10th Ed.) p. 1320; 12 Cyc. 464; State v.
Brockman, 46 Mo. 566 [1870]."
The tendency to treat the problem as purely a question of fact may account
for the extreme decision In Com. v. Knapp, 10 Pick. 477, L'O Am. Dec r>.'it
(1830), where the confet Ion was made after a promise of Immunity for turn-
ing Mate's evidence, and was afterwards used againsl the prisoner when he
-. d to testify against the others.- Ed.
i* Statement < and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 545
wrong, and under circumstances of unusual cruelty. At about mid-
night, he was taken from his home by a body of armed and disguised
men to a neighboring wood, and there hung upon a tree by the neck,
when, taken down almost senseless, he confessed that he, with the
other prisoners charged, committed the robbery, and detailed the cir-
cumstances.
The rule has been long settled in our law that, whilst a free and
voluntary confession of guilt is of the highest order of evidence, one
extorted is never received. Unlike the laws of the polished and
learned Roman, the cruel provisions of which allowed criminals and
even witnesses in some cases, to be put to the torture, for the pur-
pose of forcing a confession, ours, in most commendable contrast,
are fashioned in a spirit more just and humane.
The confession of Francis, against objections, should not have gone
to the jury. * * *
Judgment reversed.
STATE v. JONES.
(Supreme Court of Missouri, 1874. 54 Mo. 478.)
Wagner, Judge, delivered the opinion of the court.
The only question at all important to be considered in this case is,
whether the confession made by the defendant was properly admitted
in evidence against him. From the record it appears, that the defend-
ant, with several others, was indicted for killing one Hildebrand in
Moniteau County.
A short time after the commission of the murderous act, the de-
fendant was arrested in Miller County. He denied all knowledge of
the crime, and the party, in whose possession he was, hung him twice
by the neck, and extorted a statement from him in regard to the mur-
der. He was then taken back to Moniteau County, and when he arrived
in California, the county seat of that county, and whilst he was sitting
on his horse, one Hickox went up to him and shook hands with
him, and told him that he was sorry to see him in the fix that he was
in. The prisoner said that he had done nothing. Hickox then told
him that he was afraid he was in a very bad fix, because Blankenship
(who was alleged to be a participator in the crime) had said, that the
prisoner and two other men had come to his house, and forced him to
pilot them through the prairie to Hildebrand's house, and therefore the
prisoner must be the murderer. The prisoner then asked Hickox, did
he say that? And Hickox replied, that he did, and that he, the pris-
oner, must know whether it was true or not. The parties then separat-
ed, and afterwards the prisoner sent for Hickox to come and see him
Hint.Ev— 35
54G HEARSAY (Ch. 3
in the back room of a store-house, where he was confined. He then
said to Hickox, that Blankenship had betrayed them, mat he had made
up his mind to tell the whole thing, and he then made a detailed confes-
sion of all the facts relating to the murder.
Before a confession can be received in evidence in a criminal case,
it must be shown that it was voluntary. And a promise of benefit or
favor, or threat of intimidation or disfavor, held out by the person
having authority in the matter, will be sufficient to exclude a confession,
made in consequence of such inducement, either of hope or fear. State
v. Brockman, 46 Mo. 566.
In this case, Hickox, the person to whom the confession was made,
was a private citizen, had no authority in the matter, nor does it ap-
pear that any threats or inducements were held out from any source to
obtain the confession. It is true, that on the preceding day the prisoner
had been brutally treated ; but that had been done by a different party,
and it is not shown, that any of them were present exerting any influ-
ence when the confession to Hickox was made.
Where a confession has once been obtained by means of hope or
fear, confessions subsequently made are presumed to come from the
same motive ; and, if it is not shown that the original influences have
ceased to operate, they are inadmissible. 1 Whart. Crim. Law, § 594;
Roscoe Crim. Ev., 45; Peter v. State, 4 Smedes & M. (Miss.) 31;
Com. v. Harman, 4 Pa. 269; Van Buren v. State, 24 Miss. 512.
The cases above cited show, mat in each instance the prisoners were
intimidated, and under the influence of threats made the confessions
before the magistrate when they were being examined, and the subse-
quent confessions were made before the same magistrates upon the
basis of the first ones. As the magistrates were persons in authority,
and were regarded as having the prisoners in their power, it would be
necessary to show, that the fear, under which the first confession was
made, had ceased before the second one could be received. The pre-
sumption would be, that under all the surroundings it was not volun-
tarily made, and that presumption would have to be removed by evi-
dence. I can find no authority, however, for the rejection of the con-
fession in the case now under consideration. It was not made to any
of the parties who had previously been guilty of inflicting the outrage
on the prisoner. It was made without solicitation, and without any
inducement being held out, after the prisoner had considered the mat-
ter and come to the determination to make a full disclosure. Hickox
had no authority or power in the case, and was incapable of rendering
any favor or relief by virtue of official position. Of all this the de-
fendant was well aware, and nothing was said to him to produce a con-
trary belief. He was impressed with the idea, that Blankenship had
betrayed him, and therefore he considered that he might as well tell
the whole truth. Wh< ither Blankenship had made the disclosure and
'1 the crime, is of no importance.
Sec. 2) RECOGNIZED EXCEPTIONS 547
Had it been a mere artifice, 16 the case would not be altered; as no
objection can be taken because the confession was made under a mis-
taken supposition, that some of the defendant's accomplices were in cus-
tody, or that they had divulged the facts in relation to the crime, and
this would be so, even though the suppositions were created by arti-
fice, with a view to obtain the confession. 1 Whart. Crim. Law, § 691 ;
Roscoe's Crim. Ev. 47 ; R. v. Burley, 2 Stark. Ev. 12n. ; 1 Phil. Ev.
164 ; 2 Russ. Cr. 845.
Under every view that we have been able to take of the case, the
confession seems to have been entirely voluntary. It was made with-
out any threats, fears or hopes. Not only so, but it was made without
solicitation emanating from any source. The prisoner sent for Hickox,
asked for the interview, and said, that, after thinking over the matter,
he had concluded to divulge the whole truth. There is here an utter ab-
sence of all the tests which would warrant the exclusion of the confes-
sion. I think it was properly admissible in evidence, and that the court
did not err in permitting it to be received.
The prisoner was convicted of murder in the second degree, and
sentenced to the penitentiary, and the judgment of the court below is
affirmed. The other judges concur.
STATE v. BARRINGTON.
(Supreme Court of Missouri, in Banc, 1906. 198 Mo. 23, 95 S. W. 235.)
Fox, J. 16 * * * 15. It is insisted by appellant that the court
committed error in the admission of the statements and admission of
defendant while under arrest. Upon this proposition the record dis-
closes that the jury was excluded and many witnesses heard by the
court in laying the proper foundation for the introduction of such
statements. The court heard this testimony, and determined that the
statements were voluntary, hence, admitted them. With the excep-
tion of the testimony of the defendant the evidence tended strongly
to show that there were no promises or threats made as an inducement
to making the statements offered in evidence. The mere fact that the
defendant was in charge of an officer does not render any statements
that he may make inadmissible, if it appears that they were not induced
by threats or promises of reward or the hope thereof, nor does the
fact that the statements of the defendant were elicited by questions
put to him by an officer or private persons render them inadmissible,
is The rule appears to be the same where the deception was practiced by
tbose having: the prisoner in charge, as in Com. v. Cressinger, 193 Pa. 326, 4 1
Atl. 433 (1899), where the defendant was made to believe that his knife had
been found at the place where the crime had been committed. For a collec-
tion of the cases on this and related points, see note in 18 L. R. A. (X. S.)
840 (1902).
is Part of opinions omitted.
548 HEARSAY (Ch. 3
nor is it any sufficient ground of objection that the questions pro-
pounded to the defendant by those seeking a statement from him as-
sumed his guilt, or that he was not warned. that his statements would
be used against him. Kelley's Crim. Law, pp. 180, 181 ; State v. Jones,
54 Mo. 478 ; State v. Phelps, 74 Mo. 128 ; State v. Northway, 164 Mo.
513, 65 S. W. 331; State v. McClain, 137 Mo. 307, 38 S. W. 906;
State v. Rush. 95 Mo. 199. 8 S. W. 221; State v. Guy, 69 Mo. 430;
State v. Shackelford, 148 Mo. 493, 50 S. W. 105 * * *
■ Valliaxt, J. (dissenting). * * * In the oiden times to which I
have already alluded when one suspected of a crime was arrested, he
was put to the torture and broken piece by piece until the confession
came: whether guilty or not guilty, the confession usually came. We
have advanced many milestones from that station, we no longer break
them on the wheel, we now only "sweat" them, and some of these days
we will advance beyond that station. When this man was arrested
he was taken to the office of the chief of detectives and from 9 o'clock
in the evening until 2 o'clock in the morning he was subjected to what
the witness for the state called "a course of sweating." According
to testimony in his behalf all the technical skill and ingenuity of the
most experienced experts, bore upon him to entrap him into saying
something that would be evidence against himself. There was no
threat, no promise, oh no, in fact the prisoner was expressly told that
they would make no threat, they would make no promise, he was en-
tirely free to answer or not as he might elect, yet free as he was, the
sweating process went on until at length his nerves gave way, he
broke down, and wept. What he said on that occasion was given in
evidence by the state, and the court in its instruction to the jury on that
point said : "W'hat the defendant said against himself, if anything, the
law presumes to be true because said against himself. What he said
for himself you are not bound to believe because said in a statement or
statements proved by the state, but you may believe it or disbelieve it
as is shown to be true or false as shown by all the evidence in the
case." I am not going now to contend that that testimony was illegal
because although we have advanced beyond the rack and the wheel we
still cling to the "sweating process." But I do contend that testi-
mony so obtained should not be given to the jury with the stamp of the
legal presumption of absolute truth upon it. The jury could not have
understood the instruction to mean anything else than that what the
prisoner said that might be construed as tending to incriminate him-
self was to be taken as gospel truth, while what he said which tends
to exculpate him is to be received with caution, and believed or dis-
believed as the other evidence in the case might warrant. Not only
does the court by that instruction invade the province of the jury who
alone are entitled to weigh the evidence and determine the credibility
of the witness, whether he be the party in interest or not, but it fails to
distinguish between what all the law writers on the subject call solei
Sec. 2) RECOGNIZED i:\ceptions 549
admissions that is admissions in judicio, or admissions extra judicium
which have been made to influence the conduct of others, and, there-
fore, worked an estoppel, and mere verbal admissions. Those of the
first class are presumed in law to be true. 1 Greenleaf on Ev. § 27,
while those of the second class should be received with caution. Id. §
45. And in section 200 the author says : "With respect to all verbal
admissions, it may be observed that they ought to be received with great
caution." * * *
Judgment affirmed. 11
AMMONS v. STATE.
(Supreme Court of Mississippi, 1902. SO Miss. 592, 32 South. 9, 18 L. R. A.
[N. S.] 768, 92 Am. St Rep. 607.)
Ammons, appellant, was indicted, tried, and convicted of burglary.
On the trial certain confessions of the defendant, obtained by the
aid of a sweat box in the manner mentioned in the opinion of the
court, were offered in evidence against defendant over his objection.
Without the confessions there was not sufficient evidence to support
the verdict. From the conviction the defendant appealed to the su-
preme court, assigning as error the admission of the confessions.
Calhoon, J. The chief of police testified that the accused made to
him a "free and voluntary" statement. The circumstances under
which he made it 'were these: There was what was known as a
"sweat box" in the place of confinement. This was an apartment
about five or six feet one way and about eight feet another. It was
kept entirely dark. For fear that some stray ray of light or breath
of air might enter without special invitation, the small cracks were
carefully blanketed. The prisoner was allowed no communication
whatever with human beings. Occasionally the officer, who had him
put there, would appear, and interrogate him about the crime charged
against him. To the credit of our advanced civilization and human-
ity it must be said that neither the thumbscrew nor the wooden boot
was used to extort a confession. The efficacy of the sweat box was
the sole reliance. This, with the hot weather of summer, and the
fact that the prisoner was not provided with sole leather lungs, finally,
after "several days" of obstinate denial, accomplished the purpose of
eliciting a "free and voluntary" confession. The officer, to his credit,
-ays he did not threaten his prisoner, that he held out no reward to
him, and did not coerce him. Everything was "free and voluntary."
He was perfectly honest and frank in his testimony, this officer was.
He was intelligent, and well up in the law as applied to such cases,
and nothing would have tempted him, we assume, to violate any
technical requirement of a valid confession, — no threats, no hope of
i» But see State v. Powell. 258 Mo. 239, 167 S. W. 559 (1914).
550 HEARSAY (Cll. 3
reward, no assurance that it would be better for the prisoner to con-
fess. He did tell him, however, "that it would be best for him to do
what was right," and that it "would be better for him to tell the truth."
In fact, this was the general custom in the moral treatment of these
sweat-box patients, since this officer says, "I always tell them it would
be better for them to tell the truth, but never hold out any inducement
to them." He says, in regard to the patient Amnions, "I went to see
this boy every day, and talked to him about the case, and told him
it would be better for him to tell the truth ; tell everything he knew
about the case." This sweat box seems to be a permanent institution,
invented and used to gently persuade all accused persons to voluntarily
tell the truth. Whenever they do tell the truth, — that is, confess guilt
of the crime, — they are let out of the sweat box. Speaking of this
apartment, and the habit as to prisoners generally, this officer says,
"We put them in there [the sweat box] when they don't tell me what
I think they ought to." This is refreshing. The confession was not
competent to be received as evidence. 6 Am. & Eng. Enc. Law, p.
531, note 3; Id. p. 550, note 7; Hamilton v. State, 77 Miss. 675, 27
South. 606; Simon v. State, 37 Miss. 288. Defendant, unless de-
mented, understood that the statement wanted was confession, and
that this only meant release from this "black hole of Calcutta." Such
proceedings as this record discloses cannot be too strongly denounced.
They violate every principle of law, reason, humanity, and personal
•right. They restore the barbarity of ancient and medieval methods.
They obstruct, instead of advance, the proper ascertainment of truth.
It is far from the duty of an officer to extort confession by punish-
ment. On the contrary, he should warn his prisoner that every state-
ment he may choose to make may be used against him on his trial.
Reversed and remanded. 18
STATE v. POWELL.
(Supreme Court of Missouri, Division No. 2, 1914. 258 Mo. 239, 167 S. W. 5.19.)
own 1 , J. * * * 10 It will be observed that the written con-
fession implicates defendant's brothers Halsey and Cottrel Powell as
participating in the robbery and murder committed at the Missouri
Pacific freight office. According to that confession, Halsey Powell
was present and told defendant just before the robbery to come over
to his mother's house that night and get some of the money (which they
were going to secure by the robbery). At the trial defendant attempted
to prove by said Ilalscy Powell, and by three white employes of the
I Imon Pacific Railroad Company, that said Halsey Powell was a mile
Approved and rule applied in People v. Brockett, 195 Mich. 169, mi N.
w. 991 (1917), where similar methods were used to obtaiu a confession from
a l">: .
i» Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS G.jI
and a quarter distant from the scene of the robbery and murder just
one minute before those crimes were committed delivering some way-
bills to the yardmaster and other employes of said Union Pacific Rail-
road Company, and therefore could not have been present at the com-
mission of the crime, as recited in defendant's confession. Upon ob-
jection by the state, this proffered evidence was excluded, to which
ruling defendant duly saved his exceptions. * * *
Regarding the exclusion of the evidence tending to prove that parts
of the confession were untrue offered by defendant for the purpose of
impeaching or throwing discredit upon said confession, we have not
found, nor has the Attorney General cited us to, any law which sus-
tains the ruling of the trial court.
In the case of Jaynes v. People, 44 Colo. 535, 99 Pac. 325, 16 Ann.
Cas. 787, the authorities on this point are collated and reviewed at
length; and in that case it was expressly held that a confession recit-
ing that defendant procured poison at a certain establishment, with
which he feloniously poisoned a horse, might be impeached by proof
that the establishment where defendant claimed to have obtained the
poison never kept or sold the same. -
The case of People v. Fox, 50 Hun, 604, 3 N. Y. Supp. 359, was
very much like the one at bar. In that case the defendant made an
affidavit that he and four other parties committed a robbery, and,
when this affidavit was introduced against him, he offered to im-
peach the same by evidence that the four other men named in the
affidavit did not participate in the crime. In holding that this evi-
dence was competent and should have been admitted, the Supreme
Court of New York said : "Now it is quite correct to say that the
confession may be false in ever}' other particular, and yet it may be
true that defendant participated in the robbery. But the question
here is whether the defendant may not give evidence tending to dis-
prove an alleged fact, of which the people have given proof against
him. Certainly, when one side gives evidence tending to prove a
fact, the other side may give evidence to the contrary. The people
had given evidence tending to show that these five persons, together,
had committed the alleged crime. Could not the defendant show that
four of them were not there, and did not commit it, especially since
the crime could not have been committed by one alone? If the de-
fendant had made a confession that he alone went to Plank's, and
tied him and his boy, and robbed the house, such a confession, under
the other testimony, would have received no credit. But he makes a
confession of a transaction not improbable on its face. And evidence
is offered tending to show that statements in that confession are not
true ; and these are such statements, furthermore, that, if they are
not true, then the truth of the confession becomes doubtful."
This decision was affirmed by the New York Court of Appeals, 121
N. Y. 449, 24 N. E. 923.
552 HEARSAY (Ch. 3
A similar result was reached by the Supreme Court of Pennsylvania
in dealing with the same kind of an issue in Commonwealth v. Shaffer,
178 Pa. 409, loc. cit. 415, 35 Atl. 924.
The exclusion of evidence tending to prove that Halsey Powell was
not at the Missouri Pacific freight office when the robbery and murder
were committed, and therefore could not have participated therein,
was very prejudicial to defendant. Defendant not only confessed that
Halsey Powell was present as one of the active participants in that
robbery, but that said Halsey Powell had, on that very occasion, re-
quested defendant to come to the home of his mother and receive part
of the proceeds of the robbery. This part of the confession was about
the only evidence of motive on the part of defendant. Therefore
proof that Halsey Powell was not present and could not have taken
part in the crime would have tended to rebut the evidence of motive
on the part of defendant, and would also have directly tended to prove
that the confession was not voluntarily made, for if defendant did
not want to incriminate his brother Halsey (as stated by the officers),
and yet did incriminate him, when the latter was not guilty, this
would furnish the highest kind of proof that the confession was not
only involuntary, but also unworthy of belief.
For the error of the trial court in admitting the written confession
of defendant, and in excluding evidence tending to impeach said con-
fession after it was admitted, its judgment will be reversed, and the
cause remanded for a new trial.
It is so ordered.
HEIM v. UNITED STATES.
(Court of Appeals for the District of Columbia, 1918. 46 Wash. Law Rep.
242.)
Mr. Justice Van Orsdel delivered the opinion of the Court:
Appellant, defendant below, was convicted in the Supreme Court of
the District of Columbia of the crime of adultery.'
It appears that, when arraigned, defendant entered a plea of not
guilty. Thereafter, when the cause came on for trial, he appeared in
court with counsel who had been representing him, but who had ex-
pressed a desire to withdraw from the case. The defendant asked the
court for a continuance to enable him to secure other counsel. The
request was denied, and defendant asked leave to withdraw his plea
of not guilty and enter a plea of guilty, which was granted. Thereaft-
er, defendant, through other counsel, moved the court to strike from
the record the plea of guilty, which motion was granted, and defend-
ant was put upon trial.
In the course of the trial, counsel for the Government offered to
prove the plea of guilty by the introduction of the docket entry, and
the clerk of the conn was called for that purpose. Defi ndant objected
Sec. 2) RECOGNIZED EXCEPTIONS 553
to its admission "on the ground that it was an involuntary confession."
The court overruled the objection, and the clerk was permitted to read
to the jury the minutes showing the plea of guilty. This furnishes the
only assignment of error to which it will be necessary to give attention.
Confessions belong in two general classes — judicial and extra-judi-
cial. Judicial confessions may be divided into two kinds — those made
by way of plea of guilty, or otherwise, before a committing magistrate,
and which form a part of the preliminary record upon which the case is
sent to the grand jury for indictment ; and those made by way of plea
of guilty to an indictment or information when the accused is ar-
raigned in the trial court. To the latter class the confession before us
belongs. The objection here is that the plea of guilty was not volun-
tarily made. This objection goes to the admissibility of the confession.
There is but a single question presented, Is such an admission of guilt
ever made under such circumstances as to make it competent evidence
upon a trial under a substituted plea of not guilty?
A plea of guilty to an indictment is made under conditions of duress
which require the utmost discretion in receiving it. A defendant should
only be permitted to enter such a plea after being admonished by the
court as to its consequences. When thus made, he waives the right
to trial by jury, and solemnly confesses the truth of the charge made
in the indictment.
We are not here concerned with the rules which govern the admissi-
bility of extra-judicial confessions or judicial confessions made be-
fore a committing magistrate, which stand upon an entirely different
plane from the grade of judicial confessions we are here considering.
The plea of guilty to an indictment amounts to a conviction. It is a
conclusive confession of the truth of the charge, hence the admission of
such a plea in the trial under a substituted plea of not guilty if the con-
fession is to be given the legal inferences which render confessions as
matter of law admissible, must logically be sufficient without corrobora-
tion to sustain a verdict of guilty. Matthews v. State, 55 Ala. 187 ;
State v. German, 54 Mo. 526, 14 Am. Rep. 481.
Our attention has been called to but three instances in the jurispru-
dence of this country where a plea of guilty to an indictment has been
used against a defendant in the trial on a substituted plea of not guil-
ty to the same indictment. In State v. Meyers, 99 Mo. 107, 12 S. W.
516, the defendant, when the indictment charging him with murder
was read to him, in open court, pleaded guilty. The court refused to
receive the plea, which was not recorded, and set the case for trial.
At a subsequent term of the court in the course of the trial the prose-
cution was permitted to prove by the clerk of the court and others
the plea of guilty offered at the previous term of the court. Holding
the evidence inadmissible, the appellate court said: "Such testimony
should not have been admitted. The confession being what is termed
'a plenary judicial confession,' that is a confession made before a tribu-
nal competent to try him, was sufficient whereon to found a conviction.
554 HEARSAY (Ch. 3
I Roscoe, Crim. Ev. (Sth Ed.) 40. Consequently, the trial court might
have proceeded at once to pass sentence upon the accused. *
Xo one would contend that, if the plea of guilty had been entered of
record, such plea could have been received in evidence against the de-
fendant, and yet the same principle is involved whether the plea ac-
tually go upon record or not ; in either case, it must, if received in evi-
dence, be conclusive of the defendant's guilt. * * * By refusing
to receive the plea and granting the defendant a trial, this, of neces-
sity, meant a trial with the issues of fact to be determined by the jury,
and not to be determined by the previous plea of the defendant, which
admitted all that the State desired to prove. In short, the trial court
could not refuse to receive the defendant's plea of guilty at one time
and then use it against him at another."
In People v. Ryan, 82 Cal. 617, 23 Pac. 121, the defendant, under a
statute of California granting the right, withdrew a former plea of
guilty and entered a plea of not guilty. At the trial, the prosecution
was permitted to introduce the record of the plea of guilty. The court,
reversing the judgment of conviction, said: "The case stands thus,
without the evidence of a withdrawn plea of guilty, for which, by au-
thority of law and the court, a plea of not guilty was 'substituted', the
defendant could not have been legally proven or found guilty. Can it
be that a privilege thus conceded to a defendant of substituting one
plea for another is to have the inevitable effect of defeating the whole
object of the 'substituted' plea? We do not think that the legislature
in passing the law under which the defendant was allowed to nullify
and render functus officio his plea of guilty by substituting or putting
in place of it a plea of not guilty, intended to say that, notwithstanding
such substitution and doing away with the first plea, it may be given
in evidence and sometimes serve as the only conclusive proof of a
man's guilt under the plea of not guilty. Of what use practically would
such a privilege to a defendant be, as that granted by section 1018 of
the Penal Code, if its construction is to be such as that contended for
by the respondent?"
The only case cited directly in point which holds that a former plea
of guilty to an indictment is admissible against the defendant on trial
upon a substituted plea of not guilty to the same indictment is State v.
Carta, 90 Conn. 79, 96 Atl. 411, L. R. A. 1916E, 634, decided by the
Supreme Court of Errors of State of Connecticut. Three judges an-
nounced the majority opinion, resting the decision upon the case of
Commonwealth v. Ervine, 3S Ky. (8 Dana) 30, a case of remote anal-
og}', as we shall observe later. Two judges joined in a dissenting
opinion, not only conclusive in its reasoning, but in which an over-
whelming array of authority is marshalled.
The text-writers seem to be unanimous in condemnation of the prac-
tice. Wharton, in his work on Criminal Evidence (10th Ed.) § 638,
says: "Where a plea of guilty is withdrawn by the permission of the
court, it is not binding as a confession, nor can it be used as evidence."
Sec. 2) i:i:cognized exceptions 555
In 2 Encycl. PI. & Pr. p. 779, the rule is announced as follows:
"The effect of withdrawing a plea is to render it functus officio, and it
cannot afterwards be given in evidence against the accused."
In 8 Ruling Case Law, p. 112, the subject is summarily dismissed
with the suggestion that "it is hardly necessary to state that when a
plea of guilty has been withdrawn and a plea of not guilty entered, the
plea of guilty is not admissible in evidence against the accused."
In 12 Cyc. p. 426, the rule, as deduced from the authorities, is stated
as follows : "A voluntary offer by the accused before trial to plead
guilty on terms to the offence charged is competent as his admission,
but a withdrawn plea of guilty in place of which a plea of not guilty
has been substituted by leave of the court is not competent as an ad-
mission."
In Abbott's Criminal Trial Brief, p. 314, the author states as a rule
of evidence that "a plea which has been held invalid, and superseded
by the plea on which the accused is tried, cannot be read in evidence
against him."
A number of cases have been cited by counsel for the Government
where admissions of guilt made before a committing magistrate have
been used against the accused in the trial court. As we have observe
ed these are judicial confessions of a lower grade, and are insufficient,
without corroboration, to support a judgment of conviction. As to the
admissibility of such confessions we are not called upon to express
an opinion in this case. In Commonwealth v. Ervine, supra, strongly
relied upon by counsel for the Government, defendant pleaded guilty
to an indictment charging a misdemeanor, upon which the court sen-
tenced him to pay a fine. Appeal was taken; the judgment was re-
versed, and, in the second trial he pleaded not guilty. It was held that
the record of the admission of guilt on the former trial could be used
against him. But this was a complete record, which defendant had
deliberately made against himself, and on which he elected to stand
through an appeal to a higher court. When reversed, he elected to
abandon his former position and avail himself of a new line of defense.
While the Ervine Case stands alone and furnishes the sole support for
the majority opinion in the Carta Case, we think it is only remotely
analogous to the case at bar.
Nor can the error be cured by an instruction of the court to the
jury attempting to place a limitation upon the weight to be given evi-
dence of such a confession. Its admission under any circumstances is
such an invasion of the right of one accused of crime to a fair and
impartial trial that the error is incurable. It is so destructive of the
rights of the accused that the court will not stop to examine into the
technical accuracy of the objection made to its admission, but will, in
the furtherance of justice take cognizance of the error and refuse to
charge the defendant with any waiver of his rights through the over-
sight or neglect of his counsel to state with legal precision the grounds
of his objection. Wiborg v. United States, 163 U. S. 632, 16 Sup.
556 HEARSAY (Ch. 3
Ct. 1127, 1197, 41 L. Ed. 2S9; Crawford v. United States, 212 U. S.
183, 194^ 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Miller v.
United States, 38 App. D. C. 361, 364, 40 Wash. Law. Rep. 210, 40
L. R. A. (N. S.) 973.
But it is sought to distinguish the Ryan Case, in that the plea was
withdrawn under a right conferred by statute, while here its with-
drawal was permitted in the discretion of the court. Indeed, the pre-
sumptions in favor of the defendant are stronger here than in the Ryan
Case. There, he could withdraw his plea under a right conferred by
statute, irrespective of the circumstances which may have induced him
to make it ; but, here, the mere fact that the court permitted the with-
drawal might well admit of the implication that the plea of guilty had
been improperly received. The most charitable treatment which the
contention deserves is to consider the situations, in point of law, analo-
gous. Whether the plea of guilty is withdrawn in the exercise of a
statutorv privilege or by the permission of the court, the defendant
stands for trial upon a plea of not guilty, and is entitled to all the safe-
guards and presumptions of innocence which the humanity of the law
extends to one on trial where life or liberty is at stake. He stands
upon a substituted plea of not guilty, and it matters not how the plea
of guilty was set aside, whether by express or implied authority of
law. The authority for the act, so long as it existed, fixed the status of
the defendant. After the plea of guilty was withdrawn, the case was
in precisely the same condition as if the plea of not guilty had been
originally entered. The admission of guilt had disappeared from the
case, because the court, in the exercise of its sound discretion, had de-
termined that, in justice, it should go out of the case. When it was
stricken out, its evidential effect as a confession disappeared. To re-
instate it in the form of evidence against defendant is to deprive him
of any advantage gained by the withdrawal of the plea of guilty, and
restore him to a position where inevitable conviction awaited him at the
hands of the jury. As was said in the dissenting opinion in the Carta
Case : "Considerations of fairness would seem to forbid a court per-
mitting for cause a plea to be withdrawn, and at the next moment al-
lowing the fact of the plea having been made, with all its injurious
consequences, to be admitted in evidence as an admission or confes-
sion of guilt by the accused. The withdrawal is permitted because the
plea was originally improperly entered. No untoward judicial effect
should result from the judicial rectification of a judicial wrong."
The judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded. 20
»o The dissenting opinion of Chief Justice Smith has been omitted.
S ec . 2) RECOGNIZED EXCEPTIONS 557
IV. Entries and Statements against Interest
MANNING v. LECHMERE.
(Court of Chancery, 1737. 1 Atk. 453.)
Lord Chancellor. The rules as to evidence are the same in
equity as at law, and if A. was not admitted as a witness at the trial
there, because materially concerned in interest, the same objection will
hold against reading his deposition here.
There are many cases where leases are granted to persons, in which
possession upon that lease, and payment of rent, shall be a presump-
tion of right in the lessor, till a better is shewn ; but when two leases
are set up, you cannot read one of them, till you have proved possession
under that lease.
Receipts for rent are not a sufficient evidence of a title in the lessor,
unless he proves actual payment, especially where the person who has
signed the receipt is living, 21 for he ought to have been examined in
the cause.
Where there are old rentals, and bailiffs have admitted money re-
ceived by them, these rentals are evidence of the payment, because no
other can be had.
WARREN v. GREENVILLE.
(Court of King's Bench, 1740. 2 Strange, 1129.)
Upon a trial at bar, the lessor of the plaintiff claimed under an
old intail in a family settlement, by which part of the estate appeared to
be in jointure to a widow at the time her son suffered a common re-
covery, which was in 1699. And the defendants not being able to shew
a surrender of the mother's estate for life, it was insisted that there
was no tenant to the praecipe for that part, and the remainder under
which the lessor claimed was not barred.
To obviate this it was insisted by the defendant, that at this distance
of time a surrender should be presumed; according to 1 Ven. 257,
and what is laid down in Mr. Pigot's book of Common Recoveries:
2i Lord Denraan, in PhDlips v. Cole, 10 Ad. & El. 106 (1839): "With regard
to the first of these, it is clear that declarations of third persons alive, in the
absence of any community of interest, are not to be received to affect the title
or interests of other persons, merely because they are against the interest of
those wlio make them. The general rule of law, that the living witness is to
be examined on oath, is not subject to any exception so wide; and we are of
opinion that the circumstance of fraud being acknowledged introduces no dif-
ference in principle; that acknowledgment would certainly make the evi-
dence, if receivable, more weighty, but only upon the ground that it is more
strongly against the interest of the party than any merely pecuniary consider-
ation could make it. The ground of its admission would be the same in ei-
ther case ; and the same objection applies in both, the want of community of
interest."
See, also, Hennings v. Robinson, ante, p. 499.
558 HEARSAY (Ch. 3
and to fortify this presumption they offered to produce the debt
book of Mr. Edwards an attorney at Bristol long since deceased,
where he charges £32. for suffering the recovery, two articles of which
are, for drawing a surrender of the mother 20s. and for ingrossing two
parts thereof 20s. more, and that it appeared by the book the bill was
paid.
And this being objected to as improper evidence, the court was of
opinion to allow it, for it was a circumstance material upon the in-
quiry into the reasonableness of presuming a surrender, and could not
be suspected to be done for this purpose ; that if Edwards was living
he might undoubtedly be examined to it, and this was now the next
best evidence. And it was accordingly read. After which the court
declared, that without this circumstance they would have presumed a
surrender; and desired it might be taken notice of, that they did not
require any evidence to fortify the presumption, after such a length of
time.
DOE, Lessee of Reece et al., v. ROBSON et al.
(Court of King's Bench, 1812. 15 East, 32.)
In ejectment for a messuage in the parish of St. Leonard, Shore-
ditch, the question turned upon the validity of a lease granted under
a power in a marriage settlement given to John Fotherby and Anne
Colepepper, when in possession respectively, to grant leases for any
term not exceeding ninety-nine years, to take effect in possession and
not in reversion. The lease in question bore date the 31st of August,
1770, and was granted by John Fotherby to Stephen Robson, habendum
from the 29th of September, now next ensuing, for the term of ninety-
nine years. At the trial, before Lord Ellenborough, C. J., at West-
minster, the lessors of the plaintiff, who were purchasers of the re-
version, insisted upon the invalidity of this lease; it appearing from
the date coupled with the habendum to be a lease in reversion and not
in possession. The defendants who claimed under the lease, insisted
that although it bore date on the 31st of August, 1770, yet it was not
really executed and delivered until a period subsequent to that date.
To prove this they produced and tendered in evidence the books of
Mr. Strong, deceased, who was proved to have been Stephen Robson's
attorney; the entries in which were all proved to be in the handwrit-
ing of Strong. The first was his day book, containing the following
entry :
"Fotherby to Robson. Indentures of lease; Sept. 15." Then the
journal journalizing from the day book with the following entries:
"1769, 1770. P. 80. Stephen Robson, Long-
Allcv, near Moorfields. B. (1.
Sept. i-"'. Indentures of lease Fotherby <to you 8 o
'i 1. •;. I'nrehnient memorial do. 4
10. Paid registering 7 0"
Sec. 2) RECOGNIZED EXCEPTIONS 559
Also the bill-book or ledger: "1770, October. Drawing and engross-
ing lease from Mr. Fotherby to you, and counterpart, and drawing and
engrossing memorial thereof, and paid registering, £3. 13s. 6d." It
appeared, that the above charges were paid. These entries were ten-
dered in evidence to show that the parchment materials upon which
the lease was drawn were purchased, and the lease itself executed,
subsequent to the 31st of August, the date of the lease. The evidence,
though objected to, was admitted by Lord Ellenborough, C. J., and a
verdict was thereupon found for the defendants.
Park now moved for a new trial, on the ground that the evidence
was not admissible. He allowed that this question had been much
considered in a late case of Higham v. Ridgway, 10 East, 109; but
distinguished that case from the present, inasmuch as that was a ques-
tion respecting the time of birth of a child, upon which evidence of
reputation in the family is admissible; and, therefore, the books of the
midwife, who must best know the fact, might be well received. But
here the evidence was admitted upon a matter of which reputation is
no evidence; namely, to show that the date expressed in a deed was
not the true time of its execution. He admitted that the case of War-
ren d. Webb, v. Grenville, 2 Strange, 1129, had gone farther; for
there the charges made in the attorney's book were admitted to show
the surrender of a life estate, in order to support a subsequent recov-
ery ; and that that doctrine had been upheld by later decisions, as in
Roe v. Rawlins, 7 East, 279. But he contended that the rule ought
not to be relaxed too much.
Lord Ellenborough, C. J. The ground upon which this evi-
dence has been received is, that there is a total absence of interest in
the persons making the entries to pervert the fact, and at the same time
a competency in them to know it. The impression on my mind is the
same now as it was at the trial, that the evidence is admissible on the
authority of the cases.
Grose, J., concurred.
LE Blanc, J. The case of Roe v. Rawlins wa9 not a question of
reputation, but whether the ancient rent was reserved by the tenant
for life.
BaylEY, J. It has long been an established principle of evidence,
that if a party who has knowledge of the fact 22 make an entry of it,
22 Hayes, J., in Reg. v. Exeter, L. R. 4 Q. B. C. 341 (1S69): "• * * It
would be absurd to bold tbat a declaration was admissible, but to hold that
it was no evidence as to one of the main facts which it imported.
"The principle, that a declaration against interest was evidence as to all
that formed an essential part of it, was long since settled as to a declaration
against pecuniary interest in Higham v. Ridgway, 10 East, 109 [ISOs], and
the numerous cases that followed; and this principle WkS applied to declara-
tions against proprietary interest in the case of Keg. v. Birmingham, 1 B. &
S. 7G3 [1861] ; as it had been in several earlier cases."
See, also, Knapp v. Trust Co., 189 Mo. 640, 98 S. W. 70 (1906). admitting
the paid bill of a deceased physician to prove tbe disease for which the patient
had been treated.
5G0 HEARSAY (Ch. 3
whereby he charges himself, or discharges another upon whom he
would otherwise have a claim, such entry is admissible in evidence of
the fact, because it is against his own interest.
Rule refused. 23
IVAT v. FINCH et al.
(Court of Common Pleas, 1S0S. 1 Taunt. 141.)
This was an action of trespass, tried before Lord Ellenborough, C.
J., at the last assizes for the county of Cambridge, for taking three
mares, the property of the plaintiff, and converting them to the use of
the defendants. The defendants justified under a heriot custom; and
the only question between the parties was, Whether one Alice Watson,
the tenant, was possessed of the said mares at the time of her death?
It was admitted that they had formerly been her property, but it was
contended that some time before her death she had transferred them,
with the rest of her farming stock, to the plaintiff. For the purpose
of proving this transfer, a witness was called to speak to a conver-
sation, in which Mrs. Watson had stated that she had retired from
business, and given up her farm and stock to her son-in-law, the
plaintiff. The Chief Justice inquired whether these declarations were
accompanied by any act relative to the management of the farm. This
being answered in the negative, his Lordship was of opinion that the
evidence could not be received. The jury gave their verdict for the
defendants. A rule nisi having obtained on a former day for setting
aside the verdict and granting a new trial.
Lens, Serjt., upon shewing cause, contended that the evidence was
properly rejected. These declarations were not offered as explanatory
of any act relative either to this property, or to the business and man-
agement of the farm. They were nothing but casual and idle con-
versation. Evidence of such a description was calculated rather to
mislead than inform; and the admission of it in courts of justice
would be attended with the most manifest inconvenience and danger.
Sellon, Serjt., contra, was stopped by the Court.
Mansfield, C. J. The evidence ought to have been received;
though undoubtedly such declarations would be entitled to a greater
or less degree of attention according to the circumstances by which
ther were accompanied. The admission, supposed to have been made
by Mrs. Watson, was against her own interest. Had this been an ac-
tion between Mrs. Watson and the present plaintiff, her acknowledg-
ment that the property belonged to him might clearly have been given
•-•■■ in the earlier case <>f Hicham v. Uidirwny, 10 East, 109 (1808), where the
paid account <>f a deceased physician bad been admitted to prove the date
of a birth, the opinion seems i" lay some stress on the fact that tibere was
extrinsic evidence ol the fact thai the physician had attended I b< • case.
Sec. 2) RECOGNIZED EXCEPTIONS 5G1
in evidence. It ought, therefore, to have been received in the present
instance ; because the right of the lord of the manor depended upon
her title.
Per Curiam. Rule absolute. 2 *
PEACEABLE v. WATSON.
(Court of Common Pleas, 1811. 4 Taunt. 16.)
This was an ejectment brought to recover possession of three houses
at Wisbeach. Upon the trial at the Cambridge spring assizes, 1811,
before Grose, J., the counsel for the plaintiff, whose lessor claimed the
premises by descent from Robert Farthing, in order to show the
seisin of Robert Farthing, asked a witness if he had known one
Clarke, now deceased, and upon his saying yes, asked if he had ever
heard Clarke say of whom he rented the houses which he occupied
in Wisbeach. The counsel for the defendant objecting to this ques-
tion, Grose, J., refused to permit it to be put, and the plaintiff, being
unable to prove his title without this evidence, was nonsuited. An-
other objection was also raised by the defendant, that the term alleged
to be demised to the plaintiff had expired before the trial, but that
objection was overruled at the trial, and the rejection sanctioned by
the court afterwards, who said it might be cured by amending.
Peck well, Serjt., in Easter term had obtained a rule nisi to set aside
the nonsuit and have a new trial, upon the ground that evidence of the
declarations of a deceased tenant may be received to show who was his
landlord.
Mansfield, C. J. The opinion of Grose, J., is unanswerable. The
ground of the rejection is this. Possession is prima facie evidence of
seisin in fee simple: the declaration of the possessor that he is tenant
to another, makes most strongly, therefore, against his own interest,
and consequently is admissible, but it must be first shown that he was
in possession of the premises for which the ejectment is brought. The
learned judge's report, however, seems to go further, and to intimate
that he should have rejected the evidence of the declarations, whether
there had or had not been other evidence to identify the premises which
Clarke held, as those that were sued for.
Lawrence, J. The plaintiff must know, or ought to know, what
premises he goes for, and he must first show, that the defendant is
2< That an oral statement against pecuniary interest is equally admissible,
see Mahaska County v. Ingalls, 16 Iowa, 81 (1S64), where the cases are col-
lected and reviewed. For the contrary view, limiting statements against
pecuniary interest to book entries and similar writings, see Lawrence v. Kim
ball, 1 Mete. (Mass.) 527 (1840).
Hint.Ev.— 36
562 HEARSAY (Ch. 3
in possession of the premises sought to be recovered, and next, that
the plaintiff has a better title. But since the learned judge was of
opinion, that, after those facts were proved, the declaration still would
not be evidence, there ought to be a new trial.
Rule absolute.
ADDAMS v. SEITZIXGER.
(Supreme Court of Pennsylvania, 1S41. 1 Watts & S. 243.)
This was an action of assumpsit on a note, to which the defendant
pleaded non assumpsit infra sex annos.
The plaintiff gave in evidence the following note :
"On demand I promise to pay John Addams or order $600, with-
out defalcation, for value received. Reading, Sept. 4, 1827.
"Jacob W. Seitzinger"
and proved that said John Addams died in November, 1832; that
the following endorsements or entries on the back of said promissory
note, are in the handwriting of said John Addams :
"Interest paid up, February 17, 1829. Jno. Addams."
"Received three hundred and fifty dollars on the within note at
different times. January 31, 1829. Jno. Addams."
The plaintiffs then offered to read the said entries or endorsements
in evidence, to take the case out of the statute of limitations ; defend-
ant objected to the evidence; the court sustained the objection, and
overruled the testimony; to which decision of the court the plaintiffs
excepted.
Error assigned :
The court erred in rejecting the entries or endorsements on the back
of the note, and in deciding that the same did not take the case out
of the statute of limitations.
The opinion of the Court was delivered by
Gibson, C. J. Endorsements or memorandums of payments, as
acknowledgment of debt to avoid the consequences of lapse of time,
were never much encouraged by the English judges; and they have
been finally prohibited, as regards the statute of limitations, by the
9 G. 4, c. 14, though they may still be used in the English courts, to
rebut the presumption of payment which ordinarily arises from the
lapse of twenty years. Yet the objection usually made to their com-
petency, that they enable a party to make evidence for himself, is
more specious than solid. If the statute had closed upon the right,
or the foundation of the presumption were complete when the mem-
orandum was made, an objection to it would be unanswerable; but
it is impossible to conceive of a motive for fabricating such a memo-
randum while the right of action remained unimpaired. To suppose
that a creditor would set about the commission of what is at least a
Sec. 2) RECOGNIZED EXCEPTIONS 563
moral forgery, to obviate the anticipated consequences of his own
apprehended supineness, when he might, by bringing immediate suit,
prevent the occurrence of those consequences altogether, is absurd.
The legal presumption is in favour of innocence where there is no
violent probability of guilt. But the rule, guarded as it was in England,
and as it still is here, allows not such a memorandum to go to the jury,
unless it appear to have been made when the creditor had no motive
to give a false credit, but when, on the contrary, he had the all-pre-
vailing inducement of interest to avoid the appearance of it; that is,
when the period necessary to give effect to the statute or to raise a
presumption of payment had not elapsed, and consequently when to
give a false credit would have been to throw so much away. With
this qualification, such evidence cannot operate injuriously; for it is
not to be supposed that a creditor could so far mistake his interest, as
to sacrifice a part of his debt to save the residue, when no part of it
was in danger. It is possible that a weak man might do so ; but it is
inconsistent with the ordinary course of human action. The rule is
not only essentially a good one, but it is no more than an extension of
the principle which allows entries or memorandums, which were preju-
dicial to the interest of the writer where his testimony cannot be had,
to be evidence of a fact in a controversy between strangers ; thus
substituting for the sanction of a judicial oath, the more powerful
sanction of a sacrifice of self-interest. In the case before us, it is
certain that the credits were endorsed before the statute had run its
course. The note was drawn in 1827; and the endorsements, both in
the handwriting of the creditor, who died in 1832, are dated 1829 ;
so that the period required by the statute had not run round even at
his death. Such was the case which was offered to be proved; and
the evidence of it ought to have been received.
Judgment reversed, and a venire de novo awarded. 25
HOSFORD v. ROWE et aL
(Supreme Court of Minnesota, 1SS9. 41 Minn. 245, 42 N. W. 1018.)
Dickinson, J. 26 The respondent, Carrie M. Hosford, is the widow
of the deceased, John H. Hosford. Before her marriage to him she
was a widow, and bore the name of Thompson. The appellants are his
daughters by a former marriage. By an order of the probate court
25 See Searle v. Barrington, 2 Strange, 826 (1729), affirmed by the House
of Lords, 3 Brown, P. C. 593 (1730), where a similar entry was held admis-
sible to rebut a presumption of payment ; for an exhaustive review of this
case, see Gleadow v. Atkin, 1 Cr. & M. 410 (1833).
2 6 Part of opinion omitted.
564 HEARSAY (Ch. 3
for the distribution of the estate, the respondent, the widow, was al-
lowed to take in accordance with the statute, as though her rights
were not affected by the antenuptial contract hereafter to be referred to.
The daughters of the deceased appealed to the district court. Upon
trial of the cause in the latter court a jury was called, and three ques-
tions were submitted to them for decision, viz. : "First, whether about
November 2, 1885, the antenuptial contract was executed ;" to which
the jury, by direction of the court, answered, "Yes;" "second, wheth-
er the deceased, subsequent to the marriage, and about September 13,
1886, destroyed that contract with the knowledge and consent of his
wife;" to which the jury answered, "No;" and, "third, whether at or
about the time last named he signed duplicate instruments presented in
the case, and known as Exhibits C and D, purporting to annul the
antenuptial contract;" to which the jury answered, "No." The widow,
who claimed the more favorable provision made by law, rather than
that made by the terms of the antenuptial agreement, moved for a new
trial, upon the ground, among others, of newly-discovered evidence.
The court granted a new trial upon that ground, and from that order
this appeal was taken.
We are called upon to consider the alleged newly-discovered evi-
dence, as it may bear upon the second and third of the questions pre-
sented to the jury. * * *
The newly-discovered evidence, which led the court to grant a new
trial, is shown in the affidavit of one Abraham L. Jones, stating a con-
versation with Mr. Hosford between the 1st and 15th of October, 1886,
— a short time after the alleged destruction of the antenuptial contract,
— in which Mr. Hosford said: "I burned the papers we had written
before our marriage. I propose to let my wife have the biggest part
of my money." Proof of such a declaration would not be subject to
the objections suggested by the appellants. It would be provable as
evidence of the destruction and annulling of the antenuptial contract,
for the reason that such a declaration by him would be against his
interest in a pecuniary or proprietary point of view, and is therefore
within the familiar exception to the rule relating to secondary evidence.
1 Greenl. Ev. §§ 147-149. By force of the antenuptial agreement the
husband's power to dispose of his estate was greater than it would be
if that contract should be annulled. By that contract the interest which
his widow could enjoy in his estate, upon his death, was limited to
one-seventh part, as against the one-third which our law gives when
unaffected by such an agreement. It was for his interest to preserve the
larger power of disposition with respect to his property, which the con-
tract secured to him. He could still, of his own volition, bestow upon
his wife while living, or by will upon his widow, a greater share of his
ate than that specified in the agreement, and a will once made might
be revoked or altered at his own election. He would be free, on the
other hand, to make any other disposition he might desire of the six-
Sec. 2) RECOGNIZED EXCEPTIONS 565
sevenths of the estate. This right of election on his part would at
once cease upon the cancellation of that contract. Thereafter he could
impose no restriction upon the larger statutory rights of his wife to
share in his estate. As respected his interest in the property, it was
not a matter of indifference whether the contract remained in force or
not. Its annulment would diminish his power to control the disposition
of his property;, nor would it be in his own power to place himself
again in his former advantageous position.
These considerations distinguish this case from a class of decisions
relied upon by the appellants in respect to which it is to be observed
that the declarations in question could not be said to be against the in-
terest of the persons making them. Declarations by a person to
show that he had executed a will, or that he had not executed a will, or
that he had revoked his will, are examples of the cases referred to.
These are not to be regarded, in general, as declarations against in-
terest, for the acts to which the declarations relate, and the conse-
quences of such acts, are wholly within the control of the person whose
declaration is in question. It cannot be presumed that such acts are
prejudicial to himself. If he has made a will, he can revoke it at pleas-
ure, or alter it, or make another. And so his declaration that he has
made a will is not against his interest. If he has not executed a will,
that is not to his prejudice. He can do so whenever he may deem it
best. If he has revoked a will, he can make another. Whether the
declaration in question would be admissible in this case upon any
other ground than that above specified, we do not decide.
The latter provision in the antenuptial agreement, to the effect that
in the event of the husband surviving the wife, the heirs and next of
kin of the latter should, upon his death, take the same interest in the
property which the contract secured to her, does not qualify the con-
clusion that it was, in contemplation of law, against his interest to
annul this agreement. Their ages were such that — no other fact ap-
pearing — it was probable that she would survive him, and hence that
this last provision would never become operative. The law recognizes
this probability based upon such a difference in ages, and it is not to
be disregarded in considering whether the interest of Mr. Hosford was
that the contract should remain in force or be annulled. The case as
it then stood may be thus stated: If the contract should remain in
force, the wife's inchoate interest in the estate, and the corresponding
restriction upon the husband's power of disposition, would be confined
to the one-seventh part. But this limitation of his power would be
effectual, even though he should outlive her. On the other hand, if
the contract were done away with, such charge and restriction would
apply to one-third of the estate, — more than twice the former propor-
tion, — if Mr. Hosford should die before his wife, as it was probable
he would do. It so clearly appears from this that his interest was to
preserve the contract in force, that, no other qualifying circumstance
560 HEARSAY (Ch. 3
being shown, it should be assumed that the declaration in question was
against interest, and therefore it would be competent evidence against
the appellants.
*
Order affirmed. 27
SMITH v. BLAKEY.
(Court of Queen's Bench, 1S67. L. R. 2 Q. B. Cas. 326.)
Declaration for money lent, money paid, work done and commis-
sion, money had and received, interest, and on accounts stated.
Plea, never indebted.
Issue thereon.
At the trial before Mellor, J., at the sittings in Middlesex after
Easter Term, 1866, it appeared that the action was brought to re-
cover £97. 18s. 3d., the balance, with interest, due, as was alleged, on
an advance by the plaintiffs to the defendant, on a consignment of
boots and shoes. The plaintiffs in 1864 were general merchants, hav-
ing a house in London, Liverpool, and Calcutta. The plaintiff Smith
managed the business in London, and the business in Liverpool was
carried on by a confidential clerk, named Barker, whose duty and
practice it was to keep his principals constantly advised of all the
business he transacted for them. The defendant was a boot and
shoe manufacturer in Liverpool. Barker died in August, 1864 ; and,
in order to prove the alleged transaction between the plaintiffs and
the defendant, a letter written by Barker to the plaintiff Smith on
the 5th of April, 1864, was tendered in evidence, and admitted, after
objection. The letter was as follows :
"April 5, 1864.
"James Smith, Esq., London — Dear Sir: I enclose four private let-
ters, also two drafts of Cuming Brothers. * * * Draft of John
Blakey [the defendant] which he sent to-day, with three huge cases,
to the office. I enclose his invoices for your perusal. He. leaves ship-
ment of his goods to your judgment. He will renew; he banks
with the North and South Wales Bank here. I think the goods are
remarkably cheap, and I consider him a perfectly safe man, should
there be any reclamation. He draws for 75 per cent., and will pay
me the £20. he owes you, which it was arranged you should take out
in ponies ; this I stipulated for. I have a sample pair of each de-
2i in Reg. v. Inhabitants of Worth, 4 Q. B. 132 (1843), it. was held thai as
entry Bhowing a contract of employmenl was not against the Interest of the
employer.
In Gunn v. Thruston, 130 Mo. 339, 32 S. W. 864 (1895), on u. <iuesti<>n of
bringing advancements Into hotchpot, it was thought thai statements by the
deces ed parent, thai certain transfers wen- absolute gifts, were against his
Interest, but not statements that other transfers were advancements.
Sec. 2) RECOGNIZED EXCEPTIONS 507
scription here, which we can send out by first ship, and keep the
goods for the Lady Palmerston, which vessel arrived yesterday from
Glasgow. * * * Yours, &c, Geo. C. Barker."
The invoices inclosed were one to each case of boots and shoes,
and were on lithographed forms of the defendant, headed "Mr.
Bought of J. Blakey," no name being inserted as buyer ; and the list
of boots and shoes, with prices, was made out in the handwriting of
one of the defendant's clerks.
The draft was a bill of exchange, dated April 5, 1864, at six months
drawn by the defendant to his own order on the plaintiffs, for £252.
7s. 5d., "value received," this amount being about £75. per cent, on
ihe aggregate invoice prices.
The plaintiffs accepted this bill, and returned it to the defendant,
and paid it at maturity.
Two of the cases were consigned for sale to the plaintiffs' house
at Calcutta, and one to their agents at Columbo, in Ceylon ; and on
the account sales returned to the plaintiffs by their correspondents,
and which were put in evidence, the net proceeds of the sale of the
three cases showed a deficit below the sum advanced by the plaintiffs,
which deficit, with interest, made up the sum claimed.
[The jury found a verdict for the amount claimed.
A rule was obtained to enter a nonsuit, on the ground that there
was no evidence to go to the jury; or for a new trial, on the ground
that Barker's letter ought not to have been admitted in evidence.]
Blackburn, J. 28 The first question is, was the letter of the 5th of
April, 1864, written by Barker to the plaintiffs admissible in evidence
against the defendant? Mr. Barker was employed by the plaintiffs
as confidential agent in Liverpool to carry on their business there ;
and part of his duty, part of what he was employed to do, was to
keep his principals advised of the business transacted by him, and
he did keep them so advised. Of course, as long as Barker lived this
letter would not have been evidence, and he must have been himself
called as a witness ; but Barker is dead, and it was sought to make
the letter admissible, as coming within the class of cases in which
statements, whereby a deceased person has charged himself with or
discharged another from the payment of money, have been admitted.
And no doubt when entries are against the pecuniary interest of the
person making them, and never could be made available for the person
himself, there is such a probability of their truth that such statements
have been admitted after the death of the person making them, as
evidence against third persons, not merely of the precise fact which
is against interest, but of all matters involved in or knit up with the
statement; as in Higham v. Ridgway, 10 East, 109, where the entry
of man midwife that he had delivered the wife of a certain man of a
28 Part of opinion omitted.
5G8 HEARSAY (Ch. 3
son on a particular day, coupled with the charges which were marked
as paid, was held admissible to prove the date of the birth of a per-
son who had suffered a recovery, showing that he was not of age at
the time. The present statement is contained in a letter which ac-
knowledges the receipt of "three huge cases," and if this acknowledg-
ment is receivable in evidence as against interest, then the rest of the
letter explanatory of the transaction under which the cases were re-
ceived would also be evidence. But the authorities show, as was said
in the Sussex Peerage Case, 1 1 CI. & F. 85, that the declaration must
be against pecuniary interest, or, what is much the same thing, against
proprietary interest, as when a deceased occupier of land admitted
that he held as tenant of another, thus cutting down his prima facie
title in fee. In the present case all the admission by Barker that can
be said to be against interest amounts to no more than an admission
that he has the care of the three chests which have arrived at the of-
fice, and the possibility that this statement might make him liable in
the case of their being lost is an interest of too remote a nature to
make the statement admissible in evidence. * * *
Rule absolute for a new trial.
DONNELLY v. UNITED STATES.
(Supreme Court of the United States, 1913. 228 U. S. 243, 33 Sup. Ct. 449,
57 L. Ed. 820, Ann. Cas. 1913E, 710.)
Mr. Justice Pitney 29 delivered the opinion of the court:
Plaintiff in error was convicted in the circuit court of the United
States for the northern district of California, upon an indictment for
murder; and, having been sentenced to life imprisonment, sues out
this writ of error. The indictment charged him with the murder of
one Chickasaw, an Indian, within the limits of an Indian reservation
known as the Extension of the Hoopa Valley Reservation, in the
county of Humboldt, in the state and northern district of Califor-
nia. * * *
The only remaining question arises out of the exclusion by the
trial judge of testimony offered by the plaintiff in error for the pur-
pose of showing that one Joe Dick, an Indian, since deceased, had con-
fessed that it was he who had shot Chickasaw. Since the circum-
stances of the crime, as detailed in the evidence for the government,
strongly tended to exclude the theory that more than one person
participated in the shooting, the Dick confession, if admissible, would
have directly tended to exculpate the plaintiff in error. By way of
foundation for the offer, plaintiff in error showed at the trial that
Dick was dead, thereby accounting for his not being called as a witness,
a» Parts of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 500
and showed in addition certain circumstances that, it was claimed,
pointed to him as the guilty man, viz., that he lived in the vicinity
and therefore presumably knew the habits of Chickasaw ; that the
human tracks upon a sand bar at the scene of the crime led in the di-
rection of an acorn camp where Dick was stopping at the time, rather
than in the direction of the home of the plaintiff in error ; and that
beside the track there was at one point an impression as of a person
sitting down, indicating, as claimed, a stop caused by shortness of
breath, which would be natural to Dick, who was shown to have been
a sufferer from consumption.
Hearsay evidence, with a few well-recognized exceptions, is excluded
by courts that adhere to the principles of the common law. The chief
grounds of its exclusion are, that the reported declaration (if in fact
made) is made without the sanction of an oath, with no responsibility
on the part of the declarant for error or falsification, without oppor-
tunity for the court, jury, or parties to observe the demeanor and
temperament of the witness, and to search his motives and test his
accuracy and veracity by cross-examination, these being most im-
portant safeguards of the truth where a witness testifies in person, and
as of his own knowledge; and, moreover, he who swears in court to
the extrajudicial declaration does so (especially where the alleged de-
clarant is dead) free from the embarrassment of present contradic-
tion, and with little or no danger of successful prosecution for per-
jury. It is commonly recognized that this double relaxation of the
ordinary safeguards must very greatly multiply the probabilities of
error, and that hearsay evidence is an unsafe reliance in a court of
justice.
One of the exceptions to the rule excluding it is that which permits'
the reception, under certain circumstances and for limited purposes, of
declarations of third parties, made contrary to their own interest ; but
it is almost universally held that this must be an interest of a pecuniary
character ; and the fact that the declaration alleged to have been thus
extrajudicially made would probably subject the declarant to a crim-
inal liability is held not to be sufficient to constitute it an exception to
the rule against hearsay evidence. So it was held in two notable cases
in the House of Lords, — Berkeley Peerage Case (1811) 4 Campb. 401 ;
Sussex Peerage Case (1844) 11 Clark & F. 85, 103, 109, 8 Jur. 793,
recognized as of controlling authority in the courts of England.
In this country there is a great and practically unanimous weight of
authority in the state courts against admitting evidence of confessions
of third parties, made out of court, and tending to exonerate the ac-
cused. Some of the cases are cited in the margin. 30 A few of them
(West v. State, 76 Ala. 98 ; Davis v. Com., 95 Ky. 19, 44 Am. St. Rep.
so An extensive list of cases is collected in the note to this case in the orig-
inal report.
570 HEARSAY (Ch.
201, 23 S. W. 585 ; and People v. Hall, 94 Cal. 595, 599, 30 Pac. 7), are
precisely in point with the present case, in that the alleged declarant
was shown to be deceased at the time of the trial. * * *
"The danger of admitting hearsay evidence is sufficient to admonish
courts of justice against lightly yielding to the introduction of fresh
exceptions to an old and well-established rule, the value of which is felt
and acknowledged by all. If the circumstance that the eyewitnesses of
any fact be dead should justify the introduction of testimony to es-
tablish that fact from hearsay, no man could feel safe in any property,
a claim to which might be supported by proof so easily obtained.
* * * This court is not inclined to extend the exceptions further
than they have already been carried."
This decision [Queen v. Hepburn (1813) 7 Cranch, 290, 295, 3 L.
Ed. 348, 349, per Marshall, C. J.] was adhered to in Davis v. Wood
(1816) 1 Wheat. 6, 8, 4 L. Ed. 22, 23; Scott v. Ratliffe (1831) 5 Pet.
81, 86, 8 L. Ed. 54, 55; Ellicott v. Pearl (1836) 10 Pet. 412, 436, 437,
9 L. Ed. 475, 485, 486; Wilson v. Simpson (1850) 9 How. 109, 121, 13
L. Ed. 66, 71 ; Hopt v. Utah (1884) 110 U. S. 574, 581, 28 L. Ed. 262,
265, 4 Sup. Ct. 202, 4 Am. Crim. Rep. 417. And see United States
v. Mulholland (D. C.) 50 Fed. 413, 419.
The evidence of the Dick confession was properly excluded.
No error appearing in the record, the judgment is affirmed.
Mr. 'Justice Van DevantER concurs in the result.
Mr. Justice Holmes, dissenting:
The confession of Joe Dick, since deceased, that he committed the
murder for which the plaintiff in error was tried, coupled with cir-
cumstances pointing to its truth, would have a very strong tendency
to make anyone outside of a court of justice believe that Donnelly
did not commit the crime. I say this, of course, on the supposition that
it should be proved that the confession really was made, and that there
was no ground for connecting Donnelly with Dick. The rules of evi-
dence in the main are based on experience, logic, and common sense,
less hampered by history than some parts of the substantive law.
There is no decision by this court against the admissibility of such a
confession ; the English cases since the separation of the two coun-
tries do not bind us ; the exception to the hearsay rule in the case of
declarations against interest is well known ; no other statement is so
much against interest as a confession of murder; it is far more
calculated to convince than dying declarations, which would be let in
to hang a man (Mattox v. United States, 146 U. S. 140, 36 L. Ed. 917,
13 Sup. Ct. 50); and when we surround the accused with so
many safeguards, some of which seem to me excessive; I think we
ought to give him the benefit of a fact that, if proved, commonly
would have such weight. The history of the law and the arguments
against the English doctrine are so well and fully stated by Mr. Wig-
Sec. 2) RECOGNIZED EXCEPTIONS 571
more that there is no need to set them forth at greater length. 2 Wig-
more, Ev. §§ 1476, 1477.
Mr. Justice Lurton and Mr. Justice HugiiES concur in this dis-
sent. 81
V. Entries in the Regular Course of Business
STATUTE OF 7 JAMES I, c. 12 (1609J. 32
An Act to Avoid the Double Payment of Debts.
Whereas divers men of trades, and handicraftsmen keeping shop-
books, do demand debts of their customers upon their shop-books long
time after the same hath been due, and when as they have supposed the
particulars and certainty of the wares, delivered to be forgotten, then
either they themselves or their servants have inserted into their said
shop-books divers other wares supposed to be delivered to the same
parties, or their use, which in truth never were delivered, and this of
purpose to increase by such undue means the said debt: (2) and
whereas divers of the said tradesmen and handicraftsmen, having re-
ceived all the just debt due upon their said shop-books, do oftentimes
leave the same books uncrossed, or any way discharged, so as the
debtors, their executors or administrators, are often by suit of law
enforced to pay the same debts again to the party that trusted said
wares, or to his executors or administrators, unless he or they can
produce sufficient proof by writing or witnesses, of the said payment,
that may countervail the credit of the said shop-books, which few or
none can do in any long time after the said payment : (3) be it there-
fore enacted by the authority of this present parliament, That no
tradesman or handicraftsman keeping a shop-book as is aforesaid,
his or their executors or administrators, shall after the feast of St.
Michael the archangel next coming, be allowed, admitted or received
to give his shop-book in evidence in any action for any money due
for wares hereafter to be delivered, or for work hereafter to be done,
3i See, also, Brown v. State, 99 Miss. 719, 55 South. 961, 37 L. R. A. (N. S.)
345, annotated (1911) excluding the confession of a third person who was ab-
sent from the jurisdiction.
321 Taylor on Evidence (10th Am. Ed.) p. 502: "This act is no doubt, in
practice, always treated by our courts of law as a dead letter. Yet it, in
truth, is still unrepealed, and was in fact recognized and made perpetual by
the Statute Law Revision Act 1S63, which repealed a few words in it which
had originallv made it only temporary. It is therefore necessary that the
original act should be inserted in this place. The reason for this no doubt
largely is that, while the statute is never noticed, tradesmen's books may, by
the common law, be referred to, to what is technically called 'refresh the
meraorv.' They thus, in effect, and for practical purposes, become evidence,
though' not technically so called, and not being technically 'evidence,' the pro-
hibition against those which are more than twelve months old does not. at-
tach to tfeem."
572 HEARSAY (Ch. 3
above one year S3 before the same action brought, except he or they,
their executors or administrators, shall have obtained or gotten a bill of
debt or obligation of the debtor for the said debt, or shall have brought
or pursued against the said debtor, his executors or administrators,
some action for the said debt, wares, or work done, within one year
next after the same wares delivered, money due for wares delivered,
or work done.
II. Provided always, That this act, or anything therein contained,
shall not extend to any intercourse of traffick, merchandising, buying,
selling, or other trading or dealing for wares delivered or to be deliv-
ered, money due, or work done or to be done, between merchant and
merchant, merchant and tradesman, or between tradesman and trades-
man, for anything directly falling within the circuit or compass of their
mutual trades and merchandise, but that for such things only, they
and every of them shall be in, case as if this act had never been
made ; anything herein contained to the contrary thereof notwith-
standing.
III. This act to continue to the end of the first session of the next
parliament and no longer. 3 Car. I, c. 4. Continued until the end of
the first session of the next parliament, and farther continued by 16
Car. I, c. 4.
LEFEBURE v. WORDEN.
(Court of Chancery, 1750. 2 Ves. Sr. 54.)
On exceptions by defendants to the Master's report, a question of
fact by whom two several mortgages were paid off ; whether with the
money of Gabriel Armiger, whose representatives were the defend-
ants, or of Judick Armiger, his mother, to whom the plaintiffs were
representatives : the Master having reported the payment to be by the
mother and with her money. * * *
An entry by Gabriel in his book of accounts was offered as evidence
for defendants ; for which he cited Wilkinson v. Hern, 18 January,
1744; but the reading it was objected to. 84
Lord Chancellor 36 said, it was common experience, that though
what is sworn by an answer positively, cannot be read in evidence, yet
33 Pitman v. Maddox, 1 Ld. Raymond, 732 (169S): "In Indebitatus assump-
sit upon a taylor's 1*111, upon non assumpsil pleaded, and trial before Holt,
Chief Justice, at tbe sittings for Middlesex, 14 Feb., 11 Will. Ml. the plaintiff
duced in evidence bis sbop-book written by one of his servants, who was
dead. And upon proof of the death of the servant, and that he used to make
ch entries of debts, etc It was allowed by Holt, chief justice, to be good
d< ace, without proof of the delivery of the goods, etc. And he said, this
was :ts good proof, as tie' proof of a witness's hand (who was dead) sub-
scribed to a bond, etc. And (by him) notwithstanding the statute of 7 Jac. I.
c. 12 tii.it a shop book shall not be evidence after the year, yet he did
not hold such booi-: to lie good evidence witbin the year alone."
a* Statemenl condensed and part of opinion omitted.
8 6 Lord iiai do. Icke.
Sec. 2) RECOGNIZED EXCEPTIONS 573
the court allows weight to that answer, so far as to take notice of it as
a foundation for an inquiry. If then an answer, unsupported by proof,
might have that weight, an entry in books of account of testator seems
a proper ground for the court to let in and give attention to it, so far
as to be a foundation for an inquiry. It was now open, whether this
was proper to be read as evidence ;. and he was doubtful about it. He
inclined not to read it at present; but to go through the cause, hear
all the other evidence on both sides, and see how it bore connection
with the several facts, and judge whether there was occasion for it or
not.
After hearing the evidence, he was of opinion, on the best consid-
eration, that this entry ought, under circumstances of the present case
(which is a case of inquiry), to be read ; and it was desirable to let in
all lights in so dark a case: the court would judge of its weight after-
ward. It must be admitted, that, by the rules of evidence, no entry
in a man's own books by himself can be evidence for himself to prove
his demand. 36 So far the courts of justice have gone (and that was
going a good way, and perhaps broke in upon the original strict rules
of evidence), that where there was such evidence by a servant known
in transacting the business, as in a goldsmith's shop by a cashier or
book-keeper, such entry supported on the oath of that servant (2 Ves.
sen. 193), that he used to make entries from time to time, and that he
made them truly, has been read. 37 Farther, where that servant, agent,)
3 6 in such a case the party would, of course, be disqualified as a witness
on the ground of interest at common law ; and whatever the earlier practice
may have been, the courts soon recognized that an entry by a person in his
own favor was objectionable for the same reason.
Abbott, C. J., in Marriage v. Lawrence, 3 B. & Aid. 142 (1819): "It seems
to me that this evidence was rightly rejected. It was no more than a minute
made by a party in his own memorandum book, and it was, in fact, making
evidence for himself."
Bagley, J. (in the same case): "This falls within the rule which prohibits
a party from making evidence for himself. * * * For if the entry apply
to a private transaction alone it will fall within the rule applicable to pri-
vate books which cannot be given in evidence for the party to whom they be-
long."
37 Where the bookkeeper was a competent witness, as he might be in ac
tions between third persons, or where he was a mere employe, keeping tht
books of an employer, he could, of course, refer to the book to recall the facts
to bis memory, or adopt the entry as one known to him to be correct at the
time it was made. Maugham v. Hubbard, ante, p. 330.
In the latter case it was necessary to produce the original entry in court.
Doe v. Perkins, ante, p. 329. And the witness in fact probably read it as a
part of his testimony ; but it seems that the entry itself was not technically
admitted in evidence under the English practice.
Patteson, J., in Rex v. St. Martin's, 2 Ad. & El. 210 (1S34): "• * * In
Tanner v. Taylor, cited in Doe dem. Church v. Perkins, a witness was not per-
mitted to use an account which had been extracted from a book not in court :
he not being able to swear to the facts further than as finding them in the
book. The writing is not made evidence by its having been used for the pur-
pose of refreshing the memory ; but still the other side ought to see it."
See, also, Hawkins v. Taylor, 1 McCord (S. C.) 164 (1S21): "Tbe private
memorandum of an individual is of itself no evidence: when produced, it re-
quires to be supported by an oath. It is considered as aiding the recollection
574 HEARSAY (Ch. 3
or book-keeper has been dead, if there is proof that he was the serv-
ant or agent usually employed in such business, was intrusted to make
such entries by his master, that it was the course of trade; on proof
that he was dead, and that it was his hand-writing, such entry has been
read (which was Sir Biby Lake's Case [cited ante, 43]), and that was
going a great way; for there it might be objected, that such entry
was the same as if made by the master himself : yet by reason of the
difficulty of making proof in cases of this kind, the court has gone
so far. There is no case, where an entry by the party himself has been
admitted to be read, because it was merely his own declaration, unless
Wilkinson v. Hern ; of which he could not find he had taken any note ;
which might be from its being heard on exceptions, on which seldom
anything arose as matter of precedent; but it was read there on a
different ground, viz. as evidence to shew the discharge or application
of the money by the person making the payment; for it was a general
payment, and the fact of payment not disputed. But whether there
was such an authority or not, it is a reasonable distinction, that though
an entry in a man's own books may not be evidence originally to prove
a right or the demand in question, yet where the sum is clearly made
out to be paid out of his property, it may be evidence to prove the
application of it, according to the rule, that whoever pays money, it
must be received according to the direction and mode the payer im-
poses on it. That was certainly going a considerable way, but does not
come up to the present ; because there the payment was clearly ad-
mitted, and the question was only concerning the application : here the
payment is not admitted, but drawn by inference from another fact,
that on that day the mother sold the bank stock she received the money
arising from the sale thereof, which is argued to be arising from the
sale of the bank stock of the son, because the original transfer pro-
ceeded from him, and that it was his money received by her : so that
the payment made here is proved by deduction from other circum-
stances. But the ground that must be gone upon in this case is, that
this is an inquiry before the master; on which it is directed by the
court that all papers, writings, &c, should be produced before him ;
and the intent was, that all kinds of circumstances should be produced ;
and therefore this paper is not to be considered as offered to prove
originally the demand of the defendants; but to corroborate the other
evidence offered for the defendants, and to rebut the plaintiff's evi-
dence. * * *
of tho witness, but not of the foundation of his knowledge. Thus the clerk
who Is called to prove a merchant's sum, and Introduces the book of original
entries to refresh his memory."
Sec. 2) RECOGNIZED EXCEPTIONS 57ij
FURNESS v. COPE.
(Court of Common Pleas, 1828. 5 Eing. 114.)
This was an action of assumpsit to recover money alleged to have
been paid by Alexander Cope to the defendant under a fraudulent
preference.
In order to show the state of the affairs of the bankrupt and his
partners just before their bankruptcy, the plaintiff at the trial, before
Best, C. J., London sittings after Easter term, produced the ledger of
the bankers with whom the bankrupt firm kept cash. The entries in
this book were made by various persons. One of the bankers' clerks
stated that that was the book to which all the clerks of the house
referred, to see whether they should pay the checks of their customers
when presented ; and it appeared from that ledger that at the time of
A. Cope's bankruptcy, his firm had nothing remaining in the bank-
er's hands. It was objected that this book was not evidence, at all
events, as against the defendant, and that the clerks who made the
several entries ought to have been called. The objection, however,
was overruled, and a verdict found for the plaintiff.
Upon this ground, and also on the ground that the verdict was con-
trary to evidence, and did not sustain the promises as laid in the dec-
laration,
Wilde, Serjt, moved for a new trial ; against which
Merewether, Serjt., showed cause.
It appearing that the evidence was not very clear, the Court pro-
nounced no decision on the objection to the declaration, but granted
a new trial, in order that the question might be more distinctly raised.
Upon the subject of the banker's ledger, however,
Best, C. J., said, that it was properly received in evidence, and that
great mischief would ensue if the Court were to hold otherwise. The
inconvenience of calling all the clerks of the house would be seriously
felt, and without the book it would be impossible to prove that the par-
tv had no money in the house. To prove the negative, therefore, the
book, to which all referred, was sufficient, although it might not be
admissible to prove the affirmative.
BANK OF MONROE v. CULVER et al.
(Supreme Court of New York, 1S42. 2 Hill, 531.)
Assumpsit on a promissory note for $766.57. The defense was
usury on the theory that this note was a renewal in part of a note
for $2,000.00 claimed to have been discounted by the bank. The "evi-
dence of one Prentiss tended to establish this claim.
To rebut this evidence, the plaintiffs called J. T. Talman, the cash-
ier of the bank, and offered to prove from memoranda and entries in
576 HEARSAY (Ch. 3
the hand-writing of the witness, made at the time the transactions to
which they refer occurred, and while he was cashier and had charge
of the books and correspondence of the bank — which memoranda and
entries the witness would swear he believed were truly and correctly
made — the manner in which the $2,000 note came into the bank, and
in which the same was paid ; although independent of such memoranda
and entries the witness had no recollection of the facts, and even after
having his memory refreshed by their examination, he could not tes-
tify to the facts independent of the entries and memoranda. To this
evidence the defendants objected; but the objection was overruled,
and the defendants excepted. 38
Bronsox, J. The defendants attempted to prove that the two
thousand dollar note had been discounted by the plaintiffs. In an-
swer to this evidence, the plaintiffs proposed to show when, how
and for what purpose the note came into the bank ; and that they
had no connection with it beyond that of collecting and remitting the
money. If the proof which they offered was admissible, their case
was fully made out. The testimony of Cashier Talman, taken in con-
nection with the letter of Johnson, the endorsement made upon it at
the time it was received, and the entries then made by the witness in
the plaintiffs' book, showed, or, at the least, tended to show, that the
note came into the bank on a particular day through the post office,
and in the usual course of business — that it was received for collec-
tion on account of the Ontario Branch Bank, and that the money was
collected and remitted to that bank. This testimony went far to prove
that Prentiss, the defendants' witness, was mistaken in supposing the
note was discounted by the plaintiffs. And in addition to this, it was
proved that it did not appear by the plaintiffs' books that they had
ever discounted such a note.
But the question whether the plaintiffs were entitled to a verdict,
does not arise upon this bill of exceptions. The only questions made
by the bill are, whether the proofs offered by the plaintiffs were in
their own nature admissible, and whether they had a legal tendency to
make out the plaintiffs' case.
This brings us to the enquiry whether the original entries and mem-
oranda were properly received in evidence. The defendants insist that
they could only be used for the purpose of refreshing the recollection
of the witness, and not as evidence to the jury. I may here remark,
that the entries and memoranda were made in the usual course of
business, and are verified in the most ample manner by the witness
who made, and whose duty it was to make them. The proof could not
1 have been more satisfactory than it is. But the witness was un-
able to call to mind the original transaction; and the question is,
whether memoranda and entries thus verified, should be allowed to
tk for themselves. I think they should. Although it was nol then
** Statement condene
Sec. 2) RECOGNIZED EXCEPTIONS 577
absolutely necessary to pass upon the question, it was fully considered
in Merrill v. Ithaca & Owego R. R. Co., 16 Wend. 586, 30 Am. Dec.
130, and we came to the conclusion that evidence of this character
was admissible. Lawrence v. Barker, 5 Wend. 301, does not lay down
a different rule. The memorandum in that case was not made in the
usual course of business, but only for the convenience of the witness.
But here the memoranda and entries were made in the usual course of
business, and as a part of the proper employment of the witness. I do
not see how it is possible to doubt that such evidence ought to be re-
ceived. There are a multitude of transactions occurring every day
in banks, the offices of insurance companies, merchants' stores, and
other places, which, after the lapse of a very brief period, cannot be
proved in any other way. It is not to be supposed that officers and
clerks in large trading and other business establishments, can call to
mind all that has been done in the course of their employment; and
when their original entries and memoranda have been duly authenticat-
ed, and there is nothing to excite suspicion, there can be no great dan-
ger in allowing them to be laid before the jury.
The objection to the letter of Johnson seems to have been made on
the ground that the witness had no present recollection of having re-
ceived it, but was obliged to depend upon his endorsement on the
letter, and his entries made the same day in the books of the bank.
If that was the only ground of objection, the question has been al-
ready sufficiently considered. If the defendants intended to go fur-
ther, and insist that the declarations of Johnson were not evidence in
this action, they should have said so at the time. But if they had
made the point on the trial, it would have been unavailing. The letter
contained nothing beyond a statement that the note was sent for col-
lection and credit. That statement, in connection with the other evi-
dence, went to show for what purpose the note was sent by the one
bank and received by the other. It constituted a part of the transac-
tion, and as such was clearly admissible evidence. If Johnson had
called in person and delivered the note, saying he left it for collec-
tion, his declaration would have been admissible as part of the res
gestae; and his written declaration accompanying the note stands on
the same principle.
If the two thousand dollar note had been discounted by the plain-
tiffs, that fact would, in the ordinary course of business, have ap-
peared upon the books of the bank. The fact that there was no such
entry in the books was, I think, proper evidence for the consideration
of the jury.
New trial denied. 88
3 9 And so in Shove v. Wiley, 18 Pick. (Mass.) 558 (1S36) ; Humphreys v.
Spear, 15 111. 275 (1S53) ; Smith v. Beattie, 57 Mo. 281 (1874).
For the use of casual memoranda, see Haven v. Wendell, ante, p. 332 ; Peck
v. Valentine, ante, p. 338.
Hint.Ev. — 37
578 HEARSAY (Ch. 3
MOORE v. MEACHAM.
(Court of Appeals of New York, 1S51. 10 N. Y. 207.)
This was an action of trespass for obtaining from the plaintiff a
quantity of sheathing copper under the alleged false and fraudulent
representations that the defendant was the agent -of the ship Thomas
Williams, and her owners, and authorized to charge her and them
with the price, whereby the plaintiff was induced to sell and deliver
the copper, and subsequently to sue one of the owners for the price;
in which action the plaintiff was defeated by the defendant's testimony
that he had no such authority, in consequence of which the plaintiff
lost the expenses of that suit in addition to the value of the copper.
There was in addition a count de bonis asportatis, for taking and
carrying away the copper, and a count in trover for its conversion.
On the trial in the Superior Court of New York city, certain excep-
tions were taken to the rulings of the court, which are stated in the
opinion. The jury found a verdict for the defendant, and the judgment
entered thereon was affirmed by the Supreme Court, whereupon the
plaintiff brought this appeal.
Gray, J. 40 The first question presented is upon the exception taken
by the plaintiff's counsel to the decision of the judge, in refusing to
permit an entry made in the plaintiff's books to be read as evidence
of the fact that the copper there charged had been sold to the ship
Thomas Williams and owners. This entry was not made by the plain-
tiff, but by his clerk, who testified that the bargain was made between
the plaintiff and defendant in his presence. In such case the party is
not entitled to the benefit of his books as evidence. He had a clerk who
heard the bargain and made the entry. Whether the entry was jus-
tified by the facts must depend upon the clerk's recollection and other
evidence of the bargain. The question before the jury was, whether
or not the bargain made warranted the entry. But it was claimed as a
part of the res gestae, and as such was permitted to be read to the jury
as evidence of the mere fact that such an entry was made. Of this
ruling the plaintiff had no reason to complain. The entry was neither
the act nor the declaration of the plaintiff made at the time, but that
of his clerk, who was upon the stand to assign the reasons why the en-
try was thus made. * * *
Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 570
DOE dem. PATTESHALL v. TURFORD.
(Court of Kiug's Bench, 1832. 3 Barn. & Adol. 890.)
Ejectment. At the trial before Littledale, J., at the Hereford as-
sizes, 1832, it appeared that the defendant was tenant from year to
year to the lessor of the plaintiff; that on the 18th of July, the lessor
of the plaintiff had instructed Mr. Bellamy, who was then in partner-
ship with Mr. William Patteshall, to give the defendant notice to
quit at the following Candlemas; that Bellamy, on the 19th of July,
told his partner, William Patteshall, who usually managed the business
of the lessor of the plaintiff, of the instructions which he had received ;
that the latter prepared three notices to quit (two of them being to be
served on other persons), and as many duplicates ; that he went out,
and returned in the evening, and delivered to Mr. Bellamy three du-
plicate notices (one of which was a duplicate of the notice to the de-
fendant) endorsed by him, Patteshall. It was proved that the other
notices to quit had been delivered by Patteshall to the tenants for
whom they were intended. The defendant, after the 19th of July,
requested Mr. Bellamy that he might not be compelled to quit. It
was proved by Mr. Bellamy to have been the invariable practice for
their clerks, who usually served the notices to quit, to endorse on a
duplicate of such notice a memorandum of the fact and time of serv-
ice. The duplicate in question was so endorsed. Mr. Patteshall him-
self had never, to the knowledge of Mr. Bellamy, served any other
notices than these three. Mr. Patteshall died on the 26th of February,
1832. It was objected, that the endorsement on the copy of the notice
to quit in the handwriting of Patteshall was not, after his death, ad-
missible evidence of the delivery of the notice to the defendant. The
learned Judge received the evidence, but reserved liberty to the defend-
ant to move to enter a nonsuit if the court should be of opinion that it
ought not to have been admitted. A rule nisi having been obtained for
that purpose.
Parke, J. 41 I am also of opinion that this rule ought to be dis-
charged. The only question in the case is, whether the entry made
by Mr. Patteshall was admissible in evidence, and I think it was, not
on the ground that it was an entry against his own interest, but because
the fact of such an entry was made at the time of his return from
his journey, was one of the chain of facts (there are many others)
from which the delivery of the notice to quit might lawfully be infer-
red. That the delivery might be proved by direct evidence, as by the
testimony of the person who made it, or saw it made ; it might be
proved also by circumstantial evidence, as many facts ordinarily are
which are of much greater importance to the interests of mankind, and
followed by much more serious consequences. In this point of view,
«i Opinions of Lord Tenterden, C. J., and Littledale, J., omitted.
580 HEARSAY (Ch. 3
it is not the matter contained in the written entry simply which is ad-
missible, but the fact that an entry containing such matter was made
at the time it purports to bear date, and when in the ordinary course
of business such an entry would be made if the principal fact to be
proved had really taken place. The making of that written contem-
poraneous memorandum is one circumstance; the request by the les-
sor of the plaintiff to Mr. Bellamy to give the notice to quit, the sub-
sequent communication by Bellamy to Patteshall, his departure and
return, when the entry was made, the actual delivery of other notices
to quit to other tenants taken out at the same time, the defendant's
request that he might not be obliged to quit, are other circumstances,
which, coupled with the proof of the practice in the office, lead to an
inference, beyond all reasonable doubt, that the notice in question was
delivered at the time stated in the memorandum. The learned coun-
sel for the defendant has contended that an entry is to be received in
two cases only; first, where it is an admission against the interest of a
deceased party who makes it, and secondly, where it is one of a chain
or combination of facts, and the proof of one raises a presumption
that another has taken place; but it is contended that the facts here
do not fall within the latter branch of the rule, because Mr. Patteshall,
who served the notice, was not shown to have been in the habit of serv-
ing notices. I agree in the rule as laid down, but I think that, in the
second case, a necessary and invariable connexion of facts is not re-
quired ; it is enough if one fact is ordinarily and usually connected
with the other: and it appears to me that the present case is not, in its
circumstances, an exception to that part of the rule. It was proved
to be the ordinary course of this office that when notices to quit were
served, endorsements like that in question were made; and it is to be
presumed that Mr. Patteshall, one of the principals, observed the rule
the office as well as the clerks. It is to be observed, that in the case
of an entry falling under the first head of the rule, as being an ad-
mission against interest, proof of the handwriting of the party, and
his death, is enough to authorize its reception; at whatever time it
was made it is admissible ; but in the other case it is essential to prove
that it was made at the time it purports to bear date ; it must be a con-
temporaneous entry. It is on the ground above stated, as I conceive,
that similar evidence was re ived, in Lord Torrington's case, 1 Salk.
5 ; 2 Ld. Raym. 873 ; Pritt v. Fairclough, 3 Campb. 305 ; Hagedorn v.
id, 3 Campb. 379; Champncys v. Peck, 1 Stark. N. P. C. 404, and
Pitman v. Maddox, 2 Salk. 690, and others of the same nature.
TAUNTON, J. I am of the same opinion. A minute in writing like
the present, made at the time when the fact it records took place, by
a person since deceased, in the ordinary course of his business, corrob-
orated by other circumstances which under it probable that that fact
occurred, is admissible in evidence. Those corroborating cirenm-
tnust he proved; and here many such circumstances did ap-
pear. The principle is established by Price v. Lord Torrington, 1
Sec. 2) RECOGNIZED EXCEPTIONS 581
Salk, 285. 2 Ld. Raym. 873, 42 and the other cases which have been
referred to. It may be said that these were mere nisi prius decisions ;
but in Evans v. Lake, Bull, N. P. 282, which was a trial at bar, the
question was, whether eight parcels of Hudson's Bay stock were
bought in the name of Mr. Lake on his own account, or in trust for
Sir Stephen Evans. To prove the latter of these positions, the as-
signees of Sir Stephen Evans, who were the plaintiffs, first showed
that there was no entry in the books of Mr. Lake relating to this
transaction; they then produced receipts in the possession of Sir S.
Evans for the payment of part of the stock, and on the back of the
receipts there was a reference in the handwriting of Sir Stephen's
book-keeper, since deceased, to a certain shop-book of Sir Stephen.
Upon this, the question was, whether the book so referred to, in which
was an entry of the payment of money for the whole of the stock,
should be read. And the Court of King's Bench, upon the trial, ad-
mitted the entry, not only as to the part mentioned in the receipts,
but also as to the remainder of the stock in the hands of Mr. Lake's
son.
Rule discharged.
. NORTH BANK v. ABBOT.
(Supreme Judicial Court of Massachusetts, 1833. 13 Pick. 465, 25 Am. Dec.
334.)
Assumpsit upon a promissory note for $1187, dated February 7,
1828, signed by Willis Barnabee, payable to the defendant or his order,
in sixty days from date, at eirher of the banks in Boston, and indorsed
by the defendant to the plaintiffs. 43
Shaw, C. J. * * * It was further contended, that due notice to
the defendant as indorser, was not given and proved, as required by
law, to charge him.
It was in evidence, that the messenger of the bank, whose duty it
was to give notices, had absconded before the trial; that diligent in-
42 This case is reported as follows in 1 Salkeld, 285 (1703): "The plaintiff
being a brewer, brought an action against the Earl of Torrington for beer
sold aud delivered; and the evidence given to charge the defendant was,
that the usual way of the plaintiff's dealing was, that the drayman came
every night to the clerk of the brewhouse, and gave him an account of the
beer' they had delivered out, which he set down in a book kept for that pur-
pose, to which the draymen set their hands ; and that the drayman was dead,
but that this was his hand set to the book: And this was held good evidence
of a delivery; otherwise of the shop-book itself singly, without more."
It does not appear from any report of the case that any circumstances ex-
cept the regular practice was proved. In Poole v. Dlcas, 1 Bingham N. C.
849 (1S35), some of the opinions lay stress on the fact that additional corrob-
orating circumstances appeared. And so in the similar case of Welsh v. Bar-
-ett, L5 Mass. 380 (1819). On this point compare Nicholls v. Webb, 8 Wheat.
326. 5 L. Ed. 628 (1S23).
43 statement condensed and part of opinion omitted.
582
HEARSAY (Cll. 3
quiries had been made with a view to obtain his testimony, which had
proved wholly unavailing ; whereupon evidence was offered of a min-
ute book kept by him, with the testimony of the cashier, explaining the
manner of keeping and the purposes for which the book was kept.
This was objected to and admitted.
Xo case is precisely in point ; but upon the authority of analogous
cases, and the reason of the principle, we think this evidence was right-
ly admitted.
In Welsh v. Barrett, 15 Mass. 380, it was held, that such a book
kept by the messenger of a bank, after his decease, is admissible to
establish demands and notices. The ground is, that they are memo-
randa, made by an officer in the ordinary course of his business, and.
before any controversy or question has arisen.
In Nichols v. Webb, 8 Wheat. 326, 5 L. Ed. 623, it was decided, that
the minute book of a deceased notary might be received in evidence
for the like puqDOse.
In the case of Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181, it
was decided by this Court, that the books of a bank, which had been
kept by a clerk who had become insane, were admissible, upon proof
of his handwriting and that the books were kept by him in the regular
course of his business.
The only distinction between these cases and the case at bar is,
that here, for aught that appears, the witness is still living. But it
was satisfactorily proved, not merely that the witness was out of the
jurisdiction of the Court, but that it had become impossible to procure
his testimony. We cannot distinguish this, in principle, from the case
of death, or alienation of mind. The ground is, the impossibility of ob-
taining the testimony; and the cause of such impossibility seems im-
material.
It was alleged, but not strongly urged, that the book did not prove
notice to the indorser. This was rightly left to the jury with the ex-
planation given by the cashier. The entry in the book was a short
memorandum seating the amount of the note, the day it fell due and
the names of the promisor and indorser, with a mark against them
which, it was testified by the cashier, indicated that they had been no-
tified. This was competent evidence. Such a memorandum is not like
a contract or other written instrument; it is more like a writing in
cypher, or a foreign language, which may need an interpreter. With
the testimony of the cashier, as to the meaning and effect of the en-
try, it was competent evidence, from which the jury might infer the
fact of notice. * * *
Judgment on the verdict. 44
m in Hi" earlier cases the mere absence of (ho wltnoss from t lio Jurisdic-
tion w:is ii'.i regarded as =i sufficient ground Cor :i<iinittin^ the boob without
ijmonv. Cooper v. Marsden, I Esp. l (IT!)::); Brewster v. Doane, 2
Hill (N. V.; 537 (1842). But see foster v. Sinkler, 1 Buy (S. C.) 40 (17SU).
Sec. 2) RECOGNIZED EXCEPTIONS 5S3
EASTMAN v. MOULTON.
(Superior Court of Judicature of New Hampshire, 1825. 3 N. H. 156.)
Assumpsit. The defendant pleaded the general issue, and filed, by-
way of set-off, an account, one item of which was a charge of 1109
yards of cloth, and another item a charge of 187 yards of cloth.
The cause was tried here at February term, 1824.
To prove his set-off, the defendant offered in evidence his book of
accounts, accompanied with his own oath, that the book offered con-
tained the original entries of the articles mentioned in his set-off:
that the entries were made at the times they purported to be made, and
at or near the time when the respective articles were delivered. He
was then cross-examined by the plaintiff's counsel in the same man-
ner, that witnesses in chief are cross-examined ; upon which the de-
fendant's counsel proposed to examine him as a witness in chief ; and
this was permitted by the court. In the course of his examination he
stated, that the .said parcels of cloth, mentioned in the set-off, were de-
livered not to the plaintiff, but to the servants of the plaintiff. After
the arguments of counsel to the jury, on both sides, were closed, the
plaintiff's counsel objected, that the book of accounts could not go to
the jury, as evidence of the delivery of the cloth, because it appeared,
that it was in the power of the defendant to produce better evidence,
the testimony of those to whom it was delivered. But the court over-
ruled the objection, as made too late.
The jury having returned a verdict in favor of the defendant, the
plaintiff moved the court to grant a new trial, on the ground, that the
defendant had been improperly admitted to testify in his own cause,
as a witness in chief, and that the book of the defendant had been im-
properly submitted to the jury, as evidence of the delivery of the
cloth.
Richardson, C. J., delivered the opinion of the court.
It has long been the settled practice in this state, to permit the ac-
count books of a party, supported by his supplementary oath, 45 to go
to the jury, as evidence of the delivery of articles sold, and of the
performance of work and labor. But as this is in truth the admission
of a party to be a witness in his own cause, the practice is confined to
43 Duncan, J., in Curren v. Crawford, 4 Serg. & R. (Pa.) 3 (ISIS): "Books
of original entries, verified by the oath of the party, and that the entries were
made by him, have always been received in evidence in Pennsylvania, from
necessity, as business is very often carried on by the principal, and many of
our tradesmen do not keep clerks. In the country there would be a stagna-
tion of all credit, if this were not the case. It is superfluous to cite authori-
ties to prove a course of proceeding, so notorious to all conversant in courts
of justice. The same necessity has introduced the same rule in other states.
In South Carolina. Foster v. Sinkler, 1 Bay, 40 [1786]; Spence v. Sanders.
1 Bay, 119 [1790]. In Massachusetts, 2 Mass. 221 [3 Am. Dec. 46 (1806)],
Cogswell v. Dolliver. In New York, Vosburgh v. Thayer, 12 Johns. 461
(1S1G).*»
534 HEARSAY (Cll. 3
cases, where it may be presumed there is no better evidence, and has
many limitations.
In the first place, it must appear, that the charges are in the hand-
writing of the party, who is sworn ; because, if the charges are in
the handwriting of a third person, such third person is presumed to
know the facts, and may be a witness ; so that there is no necessity of
admitting the party to testify in his own cause. The book is, therefore,
in such a case, rejected.
The charges in the handwriting of the party must appear in such
a state, that they may be presumed to have been his daily 40 minutes
of his transactions and business. For if it appear in any way, that
many charges, purporting to be made at different dates, were in fact
made at the same time, the book is not evidence. The charges must
appear to be the original or first entries of the party, made at or near
the time of the transactions to be proved ; and if the contrary appear,
the book cannot be admitted as evidence.
There must be no fraudulent appearances upon the book, such as
48 Shaw, C. J., in Mathes v. Robinson, 8 Mete. 269, 41 Am. Dec. 505 (1S44):
"So long as the rule of law is allowed to prevail, that the account books of
a plaintiff, verified by his oath, may be admitted to prove charges for services
done and goods sold, much must depend upon the appearance and character
of the book offered as evidence, and the view taken of it by the judge who
tries the cause. It is true that the question, whether a book is competent
to go to the jury, is a question of law; but as the law had prescribed no
mode in which abook shall be kept, to make it evidence, the question of com-
petency must be determined by the appearance and character of the book,
and all the circumstances of the case, indicating that it has been kept hon-
estly, and with reasonable care and accuracy, or the reverse. In the present
case, the court can perceive no conclusive objection to the admission of the
book called a time book. It is a book kept in a tabular form, in which the
days of the month are placed at the head of the column, and the name of
the workman on the side; and at the end of each day, or near it, a figure
is put down at the place of intersection, say 1, y 2 or Vi ; indicating thereby,
that the person has worked the whole or a fraction of that day. It cannot
be objected that the time is put down in figures for that is the case in all
modes; nor that it was not an original entry, because that fact must depend.
as in other cases, on the oath of the party, to prove that it was made at or
about the time it purports to be made, and by the proper party. It appears
to us to be intelligible, and not more liable to fraudulent fabrication or al-
teration than entries kept in ledger form, which have been held to be good.
Faxon v. Hollis, 13 Mass. 427 [18161 ; Rodman v. Hoop, 1 Dall. 85, 1 L. Ed.
47 [1784]. The objection to the book, so far as it tended to prove services
of the apprentice, because the apprentice might have been called as a wit-
ness, seems to us untenable, and founded on a mistaken view of the nature
of this species of evidence. The use of one's own books, verifled by his oath,
Is not secondary evidence, nor is it necessary to its admission first to show
iIk- Loss of other evidence. It is original, but feeble and unsatisfactory evi-
dence. When such evidence is offered, and it is apparent from the '-use thai
the parly producing it could probably furnish better evidence, and he fails
bo to do. or to accounl for its absence, It must greatly diminish the credit
din- to tii'- feeble evidence. Hut this is a consideration winch goes to Its
edit, and doI to Its competency, and le for the jury, and not for the court.
Holmes v. Marden, 12 rick. [Mass.] 169 [1831]."
See, a! i Pos1 v. Kennerson, 72 Vt. 341, 47 Ail. 1072, 52 L. Et A. r>r,-j. 82
Am. St Etep. 948 (lOUOj, annotated, where a large number of the cases are
collected.
Sec. 2) RECOGNIZED EXCEPTIONS 585
gross alterations. And where it appears by post marks, or otherwise,
that the account has been transferred to another book, such other book
must be produced.
If it appear by the book itself, or by the examination of the party,
that there is better evidence, the book cannot go to the jury as evidence.
Thus, if an article be charged in the book as delivered by or to a third
person, or if the party on his examination admit that to be the fact,
the book is not evidence of the delivery of such article.
The party, when called, is in the first instance permitted to state
only, that the book produced is his book of original entries ; that the
charges are in his handwriting ; that they were made at the times they
purport to have been made, and at or near the time of the delivery of
the articles, or of the performance of the services. He may however
be cross-examined by the other party; in which case his answers be-
come evidence, and he is entitled to give a full explanation of any mat-
ter, in relation to which an inquiry is made on the cross-examination.
It is reasonable and proper, that he should be made a witness as far
as the opposite side chooses to make him one ; and that as far as he is
made a witness he should be at liberty to give a full explanation. But,
in our opinion, a cross-examination does not entitle him to go beyond
this. It does not entitle him to testify as to independent facts, not
necessary to the explanation of the facts, respecting which he may have
been questioned upon the cross-examination. It does not make him a
witness in chief in the cause.
Such, in our opinion, is the law on this subject, (2 Mass. 221, 3 Am.
Dec. 45, Cogswell v. Dolliver; 2 Mass. 569, Prince v. Swett; 13
Mass. 427, Faxon v. Hollis ; 4 Mass. 457, Prince v. Smith,) and it is
very easily applied to the case now before us.
As soon as it appeared, that the cloth was delivered to a third per-
son, the book became incompetent evidence to prove the delivery of
that article; and the jury ought to have been so instructed. It was
no waiver of the objection, that it was not taken until the arguments
were closed. It was enough that the attention of the court was called
to the subject before the jury retired. The objection, in its nature,
amounted to nothing more than a request to the court to give the jury
proper directions in a matter of law, arising in the cause ; and the re-
fusal of such a request is clearly a good cause for a new trial. We
think also, that the defendant was not entitled to testify as a witness
in chief.
New trial granted. * T
47 in President, etc., of Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181
(1S25), Putnam, J., after holding that a bank book kept by a clerk was prop-
erly admitted, observed: "It will be perceived, that this decision does not
touch or enlarge the doctrine of the admissibility of the books of a merchant
or other person, who makes the entries himself, and who is permitted, accord-
ing to the practice in Massachusetts and in most, if not all, of the New Eng-
land States, to make bis suppletory oath respecting tbe charges. In regard
to cash, the sums to be proved in that manner have been limited in this State
536 HEARSAY (Ch. 3
PELZER v. CRANSTON.
(Constitutional Court of South Carolina, 1823. 2 McCord, 328.)
Mr. Justice Colcock delivered the opinion of the court :
The only question in this case is, whether the books of the plaintiff,
who is a schoolmaster, were competent evidence to prove his account
on their appearing to have been regularly kept? The recorder was of
opinion that "the case of a schoolmaster came within the principle of
the authorities in this state, which decided that the original entries in
books were prima facie evidence," and he therefore decreed for the
plaintiff.
A motion is now made for a new trial, on the ground that the books
were not evidence. It is certain the decisions have gone so far as to
permit the books of others than merchants and mechanics to be given
in evidence, but the court have always kept in view the necessity of the
evidence. Now, there are few persons in business who are furnished
with as many witnesses as a schoolmaster may command, and there is
no necessity for admitting his books to be produced in evidence. The
decisions have gone far enough on this subject, and the court are not
disposed to extend the principle. They are unanimously of opinion
that the books were improperly admitted, and that therefore a new
trial must be granted:
Justices Richardson, Johnson, Huger, and Nott, concurred.* 8
NOLLEY v. HOLMES.
(Supreme Court of Alabama, 1842. 3 Ala. 642.)
The plaintiff in error declared against the defendant in the Circuit
Court of Baldwin, for goods, wares and merchandise, sold and de-
livered.
On the trial, the plaintiff proved that he was a merchant, and that
he had no clerk, but sold goods himself. He then produced his day
book and ledger, kept by himself, in which the defendant appeared to
be charged with merchandise sold by the plaintiff, to the amount of
one hundred and sixty-nine dollars. It was proved that the charges
were reasonable and proper ; and persons who had dealt with the
plaintiff testified, that he kept correct books, and his accounts were fair.
to 40 shillings, or G dollars CG cents. But tins decision proceeds upon the
iund before stated, warranted by the authorities of the common law, and
Independently of our Local nsage, which admits the party in certain cast's to
v'Tii'v his Ih.mKs of account by his own oath."
*» For the aame reason it has been held that the account l b <>f a deceased
person is not admissible to prove the payment of monej t" ;i third person who
WOUM be COmpeti Qt a.-, a witness. Faunce v. Cray, lil Tick. (.Mass.) 243
Sec. 2) RECOGNIZED EXCEPTIONS 587
The defendant moved the Court to exclude the plaintiff's books from
the jury as inadmissible evidence, which motion was sustained; and
thereupon the plaintiff excepted.
A verdict and judgment being rendered in favor of the plaintiff (?)
he has prosecuted a writ of error to this Court.
Collier, C. J. In Moore v. Andrews & Brothers, 5 Port. 107, it
was held, that the admissibility of books of account as evidence, was
not provided for in this State by Statute, and consequently depended
upon the common law. This being the case, it may be safely affirmed,
that entries made by a tradesman himself, stating the delivery of goods,
are not evidence in his favor. 1 Phil. Ev. 266 ; 2 ibid. C. & H.'s notes,
691. The law cannot be admitted to be otherwise, without disregarding
a very salutary maxim, "nemo debet esse testis in propria causa" ; and
this too, when the departure from a general rule, is not demanded by
the necessity of the case. If a party has a gocd cause of action, he
may call upon his adversary for a discovery, if he has no other means
of establishing it; but he cannot entitle himself to a judgment, by the
proof of his own admissions, made either orally or in writing. That
such would have been the effect of the admission of the evidence that
was rejected, it requires no reasoning to show.
We are aware, that in most of the States, the party's books of origi-
nal entries may be adduced as evidence ; but this right is given by stat-
utes which determine their influence, and prescribe what suppletory
proof is necessary. 2 Phil. Ev. C. & H.'s notes, 682. No such statute
being in force here, it follows from what we have said, that the judg-
ment of the Circuit Court must be affirmed. 48
BOYER v. SWEET.
(Supreme Court of Illinois, 1841. 3 Scam. 120.)
BrelsE, Justice, delivered the opinion of the court:
It appears by the record in this case, that the plaintiff in error
brought an action of assumpsit, in the Cook Circuit Court, against
the defendant in error, for work and labor done, and for goods,
wares, and merchandise, sold and delivered by him to the defendant,
at his special instance and request accompanying his declaration with a
bill of particulars, consisting of lime and stone, sold and delivered
in May, June, July, August, and November, 1835.
The general issue was pleaded, with notice of set off. On the
trial, as appears from the bill of exceptions taken in the cause, the
plaintiff proved the delivery of stone and lime to the defendant, at
different times in 1835, and then produced in court an account
*» And so in Hissrick v. McPherson, 20 Mo. 310 (1855), where it was Bought
*o use a similar book supported by the plaintiff's oatb that the account was
correct.
5S8 HEARSAY (Cll. 3
book containing charges for those articles, against the defendant
made in that year, and proposed to ask a witness the following ques-
tions :
First. Did the plaintiff keep a clerk in 1835?
Second. Is the book now in court, the plaintiff's book of accounts,
and are the entries therein, in his handwriting?
Third. Is his book fair and correct, and have you settled with him
on that book, and found it correct ?
Fourth. Were any part of the stone and lime in said book deliv-
ered?
To the evidence sought to be produced by these questions, the de-
fendant objected, and the objection was sustained by the court and
an exception taken. A verdict and judgment were rendered for the
defendant, and the cause brought here by a writ of error. The prin-
cipal error assigned is, in this rejection of the evidence offered by the
plaintiff. No objection is made to the form of the questions, or any
other point contested, except this. What is the rule of evidence in
cases of running accounts, composed of many items, where no clerk
is employed, and where the delivery of all the articles charged cannot
be positively proved?
On the argument here by the counsel for the defendant in error
it is insisted, that inasmuch as we have adopted the common law of
England, we have adopted, likewise, all its rules ; and that resort
must be had to the decisions of the British courts to ascertain what
is the rule in any given case, wherein the legislature has not pro-
vided one. It is true, we have, like most other States in the Union,
adopted the common law, by legislative act; but it must be under-
stood only in cases where that law is applicable to the habits and
condition of our society, and in harmony with the genius, spirit, and
objects of our institutions. Penny v. Little, 3 Scam. 304; Stuart
v. People, 3 Scam. 404; Seeley v. Peters, 5 Gilman, 141, and
note.
Generally, too, the decisions of those courts furnish strong evidence
of what the common law is; but it is equally true, that they have
made many innovations upon its original principles, and refining upon
the adjudications of one another, many of them have become very much
modified, or wholly changed. The courts of the several States have
also taken advantage of its pliant nature, in which consists one of
its greatest excellencies, and adopted it to the evervarving exigen-
cies of the country, and to the everchanging condition of society.
This results from necessity; and in our further progressive im-
provement, other and more extensive modifications will be effected.
ime rules of the common law suited to a highly refined and lux-
urious people, where every description of business is reduced to a
system, and a minute division of labor exists, may be very ill adapted
to a community differently situated. There are some great leading
Sec. 2) EECOGNIZED EXCEPTIONS 589
principles, some fundamental rules which are never departed from,
being founded in the common reason of every man, and which no
change of his condition can alter. In regard to evidence, one of them
is, that the best of which the nature of the case is susceptible, and
in the power of the party to produce must, in all cases, be produced.
This is all that is demanded of suitors in courts, and it is upon this
principle, that the rule in England, declaring that books of a trades-
man not to be evidence, unless supported by the oath of the clerk
who made the entries, or by proof of his handwriting, if he is dead,
is based. It has never been decided there, that if this evidence is
not in the power of the party, where he kept no clerk, that second-
ary evidence shall not be resorted to. The rule would be the same here,
if the party employed a clerk, the best evidence would be his entries,
or proof of the actual delivery to, or admission by the party charged,
if such existed.
In the case, then, of open accounts, composed of many items, where
the entries are made by the party himself, no clerk being employed,
where some of the articles are proved to have been delivered to the
party charged, and no admission made by him, and no receipt taken
from him, what other evidence in the power of the party to produce
could be offered, than the books themselves, fortified by the testi-
mony of disinterested persons, that they have settled their accounts
by them, and that they are fairly and honestly kept ?
From the nature of such dealings, no other evidence could be ad-
duced, and we see no danger to be apprehended in admitting it. It is
safe in practice, and tends to promote the ends of justice.
If all men were equally honest, such accounts would be admitted
when presented, and proof of such admission would be the best evi-
dence. But they are not so ; they will not make honest admissions,
when charged, and no recovery could be had against them, because the
party trusting him did not employ a clerk or a standing witness to
testify to all the items.
There being no clerk, no witness to the transactions, and no ad-
missions of the party charged, to offer to the jury, the next best evi-
dence would be the proof of circumstances from which the jury might
infer the fairness and honesty of the whole account. These circum-
stances would be proof of the delivery of some of the articles charged,
at or about the time the entries purport to have been made; that he
kept no clerk at the time; that the book produced is his book of ac-
counts; that the entries are in his handwriting, and that they are
made honestly and fairly, and this, by the testimony of those who
have dealt with him, and settled by that book. Such facts would fur-
nish strong presumptive evidence of fairness, and subject to be re-
butted by proof from the other side could not work injustice, or mis-
lead a jury. No rule of law is violated by permitting such facts to
go to the jury for their consideration, and in a great majority of
cases, they are the only facts that can be offered.
590 HEARSAY (Ch. 3
This rule would not apply to an account for money lent, as that
is not usually the subject matter of account, notes being generally
taken, nor to an account containing a single charge only, as that would
show no regular dealings between the parties.
In many of the States, books of accounts are admitted in evidence,
after being fortified by the oath of the party. In other States, the
books, with the suppletory evidence proposed to be given in the case
under consideration, are admitted, as circumstances from which the
jury may or may not, in their discretion, infer that the whole of the
articles charged were in fact delivered. We think, then, that the
circuit court in rejecting the evidence offered, erred, and accord-
ingly reverse the judgment with costs, and remand the cause with
instructions to award a venire de novo, and to admit the testimony
offered by the plaintiff.
Judgment reversed. 60
MONTAGUE v. DOUGAN.
(Supreme Court of Michigan, 1888. 68 Mich. 98, 35 N. W. S40.)
Sherwood, J. B1 This case is an action of assumpsit, originally
brought before a justice of the peace in the city of Niles. The plain-
tiff declared under the common counts, adding thereto a bill of partic-
ulars of his demand. The defendant pleaded the general issue, with
notice of set-off, and of money tendered and deposited with the court,
the amount tendered being $16.32 ; costs $1.75. The plaintiff recovered
judgment before the justice for $93.75, and on appeal by the defendant
to the circuit court for the county of Berrien, the plaintiff recovered
$101.78. * * *
Some stress is laid upon the fact that the plaintiff's books were al-
lowed to be put in evidence, without proof by other persons that they
had settled accounts with the plaintiff upon the books, and that he kept
correct books. Such proof is unnecessary, since the statute allows
parties to testify, generally, in the case. They can testify as well to
'■><> See same rule approved in Vosburgh v. Thayer, 12 Johns. (N. Y.) 461
(1815) ; Jackson v. Evans, 8 Mich. 476 (1860).
For later legislation introducing the supplementary oath in Illinois, see
Hurd's Kcv. St. 1917, c. 51, § 3: "Where in any civil action, suit or proceed-
ing, the claim or defense is founded on a book account, any party or inter-
ested person may testify to his account book, and the items therein contained;
that the same is a book of original entries, ami that the entries therein were
made by himself, and arc true and just; or that the same were made by a
■ id person, or by a disinterested person, a nonresident of (he state at
the time of the trial, ami were made by such deceased or non-resident person
in the ostial course of trad.', and of his duty or employment to Hie party (SO
testifying; and thereupon the said account book and entries shall he admit-
ted a- evidence In i he cause."
for Similar legislation in Missouri, see Kcv. St. Mo. 1909, § 6351.
n Part ot opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 591
the keeping of their accounts, and the correctness of their books, as
to any other facts. Brown v. Weightman, 62 Mich. 557, 29 N. W. 98.
The question of the agency of a Mr. Brown, who purchased, and
gave directions for the charging of, a large number of articles, was
strongly challenged upon the trial ; but, so long as there were facts
upon the subject of ratification of his agency to be found by the court,
it is of little account what was the extent of his original authority.
Webster v. Wray, 17 Neb. 579, 24 N. W. 207, 203. The plaintiff's
books were offered to show to whom goods were charged, and to whom
the credit was given ; for this purpose, under the facts stated in the
record, the proof was properly received. Winslow v. Lumber Co.,
32 Minn. 237, 20 N. W. 145 ; Larson v. Jensen, 53 Mich. 427, 19 N.
W. 130.
The record fails to disclose any error prejudicial to the defendant,
and the judgment at the circuit must be affirmed. 52
SMITH v. SMITH.
(Court of Appeals of New York, 1900. 163 N. Y. 1G8, 57 N. E. 300, 52 L. R.
A. 545.)
Gray, J. The plaintiff sought to recover a balance due for coal
sold and delivered by him to the defendant. He recovered judgment
upon a trial before a referee, and that judgment has been unanimous-
ly affirmed by the appellate division. Upon his appeal to this court the
defendant assigns as error a ruling of the referee under which the
plaintiff's books of account were admitted in evidence. Upon the trial
the plaintiff testified to having had business transactions with the de-
fendant, in the sale of coal to him, for some time past ; that his books
of account contained a correct statement of the coal sold and delivered
within the dates in question, and that he personally delivered nearly all
the coal covered by the account. He testified that his wife kept his
books, and made the entries therein from memoranda furnished by him
as made after the delivery of the coal. She also testified to making the
entries in that manner, and that they were correctly made. There was
evidence on his part, also, to the effect that a copy of the account in
the books had been acknowledged by the defendant, with an offer to
settle upon some rectification being made. A witness for the plaintiff
52 Black, J., in Anchor Milling Co. v. Walsh, 10S Mo. 277, IS S. W. 904. 32
Am. St. Rep. 600 (1891): "Since a party may testily in his own favor, it
must be conceded that he, as well as his clerk or bookkeeper, may refresh
his memory from entries made by him or uuder his eye, aud tben testify as
to the fact with his memory thus refreshed. Now, in cases of an account
composed of many items, all this means nothing more than reading the book
in evidence. This we all know from daily experience in the trial courts. It
is out of all reason to say that a merchant or his clerks can recall each item
of the account, and a fair-minded witness will generally decline the attempt."
592 HEARSAY (Ch. 3
testified that he had settled with him by his books for eight or ten
years, and had always found the books correct. Being cross-examined
as to that he said : "I knew the accounts were correct simply because
I had confidence in him, and paid what he asked. That is all the reason
I had for saying they were correct, — because I had confidence in him.
* * * I relied on his honesty, and not on my recollection as to the
amount of coal I ordered." Another witness testified for the plaintiff
that he was a bookkeeper for a firm that purchased coal from the
plaintiff on credit, and that he had "settled with him according to his
books and according to our own four or five times," and "always found
them to be correct." Upon this evidence the books of account were
offered by the plaintiff, and the objection to their admission was placed
"on the ground that they are incompetent, a proper foundation not hav-
ing been laid for their being admitted as evidence." The objection was
overruled, and the defendant excepted.
The question is thus presented whether, in the evidence which pre-
ceded, a foundation had been laid for the admission of the books ac-
cording to the requirements of a rule of evidence, which should be re-
garded as established since its formulation in the case of Vosburgh v.
Thayer, 12 Johns. 461. It was held in that case that books of account
ousrht not to be admitted in evidence "unless a foundation is first laid
for their admission by proving that the party had no clerk, that some
of the articles charged have been delivered, that the books produced are
the account books of the party, and that he keeps fair and honest ac-
counts ; and this by those who have dealt and settled with him." The
rule, as thus laid down, has been since accepted as correct. McGoldrick
v. Traphagen, 88 N. Y. 334; Tomlinson v. Borst, 30 Barb. 42; Dooley
v. Moan, 57 Hun, 535, 11 N. Y. Supp. 239. Under these restrictions
account books become evidence for the consideration of the tribunal
with which the determination of the issues rests. As evidence which
is manufactured by the party, they should be received with caution;
but that is an objection which goes to the weight of the evidence, and
not to its admissibility, which is to be determined solely with reference
to the foundation which has been laid for it. Their admission in evi-
dence is, of course, not authoritative as to their contents ; for the con-
clusion as to their credit will depend upon their appearance, the manner
..f their keeping, and the character of him who offers them. Although
the rule under discussion was established at a time when parties to an
action were not allowed to be witnesses, the subsequent legislation,
which removed that disqualification, and authorized parties to testify
in their own behalf, has not deprived them of the right to introduce
their books of account in evidence. Tomlinson v. Borst, supra; Stroud
v. Tilton, *42 N. Y. 139. The rule may still be an important one in
the admini nation of justice in cases where the party kept no clerk
able to testify to the truth of the entries in his books, and v . unless
they are admitted, great inconvenience and a denial of justice may
follow.
Sec. 2) RECOGNIZED EXCEPTIONS 593
The conditions precedent to the admissibility of the plaintiff's books
of account were sufficiently complied with within the requirements of
the rule in Vosburgh's Case. The plaintiff had sworn that he had per-
sonally delivered nearly all the coal charged, and that the books which
were produced contained his accounts. That he had no- clerk was
manifest from his testimony. In fact, the appellant does not claim
that the plaintiff did have a clerk, and, of course, the plaintiff's wife
cannot be claimed to be a clerk, within the meaning of the rule. The
clerk so intended means one who had something to do with, and had
knowledge generally of, the business of his employer, and who would
be enabled to testify upon the subject of the goods sold. McGoldrick
v. Traphagen, supra. The plaintiff had affirmatively shown, not only
that his wife kept his books for him, but that it was he who either de-
livered the coal or superintended its delivery. The evidence was suffi-
cient to negative the idea that he kept a clerk who could testify, by
reason of his employment, to the correctness of the account of goods
sold and delivered. The remaining requirement that proof should be
made that the plaintiff kept fair and honest books by those who had
dealt with him, and who had settled with him on the books, was suffi-
ciently met in the evidence of the two witnesses, which has been men-
tioned. The evidence went to establish not only the character of the
plaintiff for honesty, but that in a course of business extending over
several years the witnesses had always found his books to be correct.
In the one case the witness paid his bills relying upon the plaintiff's
honesty, and not upon his recollection as to the amount of coal or-
dered ; in the other case the witness had settled the plaintiff's bill
against his employers according to his books and according to their own
books, and had always found the plaintiff's books to be correct. Such
evidence should be and is quite sufficient to discharge the burden rest-
ing upon the plaintiff with respect to that item of proof required by the
rule. The judgment should be affirmed, with costs. 53
Parked, C. J., and O'Brien, Haight, Landon, and Werner, JJ.,
concur. CullEn, J., not sitting.
Judgment affirmed.
WILCOX v. DOWNING et al.
(Supreme Court of Errors -of Connecticut, 1914. 88 Conn. 368. 91 Atl. 202.)
Roraback, J. 54 * * * The rejection of Calvin Wilcox's mem-
orandum book was not erroneous. In support of her claim that Calvin
Wilcox, the plaintiff's assignor, had sold and delivered the articles of
63 See same rule applied in House v. Beak, 141 111. 290, 30 N. E. 10G5, 33
Am. St. Rep. 307 (1S92), where the entries had been made by a member of
the firm from memoranda furnished by various employes.
6* Statement and part of opinion omitted.
Fint.Ev.— 38
594 HEARSAY (Ch. 3
merchandise to the defendants as alleged in the second count of the
plaintiff's complaint, Mr. Wilcox produced a book containing mem-
oranda relating to the sale and delivery of these articles which the
defendants claimed were never sold to them.
Calvin Wilcox was called as a witness, and testified that it was an
account book of his own ; that all the daily transactions were entered
in this book; and that this was the only account book kept by him.
Upon this question the trial court found that the book in question
was a memorandum book about ten inches long, eight inches wide and
three-eighths of an inch thick, from which many pages had been
torn. It contained memoranda of some accounts and other matters,
but not in regular chronological order. The book itself did not indicate
that it was a book in which were regularly kept accounts of the wit-
ness or that it was kept in the regular course of his business.
It is for the presiding judge to say, in the first instance, whether en-
tries in an account book are of such a character as to render it ad-
missible, and his decision will not be interfered with, unless clearly
wrong. Riley v. Boehm, 167 Mass. 183, 187, 45 N. E. 84.
As a general rule, when a book of accounts shows that it is not
properly kept within the requirements of the rule, it is within the pow-
er of the court to reject it. Pratt v. White, 132 Mass. 477, 478. To a
certain extent the basis of a ruling of the trial judge as to the admis-
sion of an account book may consist of facts gained by his personal
examination. Riley v. Boehm, 167 Mass. 183, 186, 187, 45 N. E. 84.
The trial court may exclude an account book where either its condi-
tion or appearance or the evidence reasonably creates a suspicion that
it is not a true record of what it purports to be. It must appear to
have been honestly kept, and not intentionally erased or altered, and
to have been an account of the daily business of the party, and made
for the purpose of establishing a charge against another. Pratt v.
White, 132 Mass. 478; McXulty's Appeal, 135 Pa. 210, 19 Atl. 936.
Mutilation of a portion of a book, material to the inquiry, may
prevent its admissibility, unless satisfactorily explained. Crane v.
brewer, 73 N. J. Eq. 558, 68 Atl. 78; Chamberlayne on Evidence, vol.
4, §§ 3051 to 3149, inclusive.
We cannot say that the court below was not justified in the rejec-
tion of the book. * * *
Affirmed.
JUNIATA BANK OF PENNSYLVANIA v. BR< >WN.
(Supreme Court of Pennsylvania, L819. 5 Serg. & R. 226.)
Assumpsit on a promissory note made by the defendant, payable to
Jo '|'h Martin, ami endorsed by him and by Joseph McCoy. In order
to prove that Joseph Martin was a member of the firm of Francis
Sec. 2) RECOGNIZED EXCEPTIONS 50."
McCoy & Co., plaintiff introduced the deposition of John Cook, a
member of the late firm of Cook & Cresson, who stated his belief
that such was the fact from an entry in the day book of that firm,
headed "Francis McCoy and Joseph Martin, trading under the firm
of Francis McCoy & Co. 55
Tilghman, C. J. By ancient custom in Pennsylvania, the books of
original entry of a merchant, oi\ shopkeeper, are received as evidence
of the sale and delivery of goods. This rule was founded on con-
venience. In early times, many traders could not afford to keep
clerks ; they were forced to give credit on sales of their goods, and
it was supposed there would be no great danger in permitting their
own entries to be prima facie evidence, provided they were made
at the time the sales took place. But they never were admitted
as evidence, of the payment of money : there was no necessity for
this, as it is the business of a man who pays money, to take a receipt
for it. Neither could there be the least reason for their being admitted
as evidence of a collateral matter in which a third person was con-
cerned, as for instance, in a case like the present, where the books of
Cook & Cresson are offered, not to prove a sale and delivery of goods
by them to F. McCoy & Co., but to prove, merely for the benefit of
William Brown jun., that Joseph Martin was a partner of F. Mc-
Coy. Besides, if the book was evidence, it should have been produced ;
an extract could not be evidence. But the defendant's counsel say,
that although neither the book nor the extract in themselves might
be evidence, yet the deponent might refresh his memory, by the use
of this extract. Certainly he might have refreshed his memory, and
then swear with a memory refreshed ; but he had no right .to intro-
duce into his deposition, the matter which he had made use of to
refresh his memory. A witness examined at the bar, may look at his
notes for the purpose of refreshing his memory, and then, if he
can with a safe conscience, he may swear from his own recollection ;
but he would not be permitted to read his notes to the jury. Now,
in the present instance, it is endeavoured, in a side way, to get be-
fore the jury, a writing, which in itself was not evidence. But this
must not be permitted, because it might have an influence on the
jury. If Mr. Cook, after examining his books, could have taken on
himself to swear, that Joseph Martin, was a partner of Francis Mc-
Coy, it would have been all very well. But if not, that fact must not
be made out from the books. I am of opinion therefore, that the evi-
dence ought not to have been admitted. * * *
Judgment reversed.
55 Statement condensed and parts of the opinion on other noints omitted.
596 HEARSAY (Ch. 3
DODGE v. MORSE.
(Superior Court of Judicature of New Hampshire, 1825. 3 N. H. 232.)
Assumpsit for goods sold and delivered to the defendant by plain-
tiff's intestate.
The cause was tried here, at November term, 1824. The plaintiff,
among other evidence, produced a book of accounts, and, being sworn
to make true answers, stated, that the book came to him as administra-
tor, and that the charges in it against the defendant, which were the
same as the charges mentioned in the declaration, were in the hand-
writing of Isaac Dodge, his intestate. Whereupon, the book was per-
mitted to go to the jury, as evidence in the cause. B6
By the Court. * * * It is further objected, that the book of
the deceased, supported only by the supplementary oath of his admin-
istrator, was improperly permitted to go to the jury. It has lately been
decided in this court, that the book of a party, supported by his oath,
that it is his book of original entries, and that the charges are in his
own handwriting, may go to a jury as evidence. Eastman v. Moulton,
3 N. H. 156.
And it is believed, it will be difficult to shew a good reason, why the
book of the intestate, supported by the supplementary oath of his ad-
ministrator, should not be considered as good evidence, as if support-
ed by the oath of Isaac Dodge himself. And we are of opinion, that
this objection must be overruled.
Judgment on the verdict. 57
THE QUEEN v. INHABITANTS OF WORTH.
(Court of Queen's Bench, 1843. 4 Q. B. 132.)
On appeal against an order of justices removing William Worsell
and his wife and children from the parish of Worth in Sussex to the
parish of Home in Surrey, the sessions quashed the order subject to
the opinion of this court upon the following case.
The respondents had removed the pauper and his family upon a
settlement obtained in the appellant parish by hiring and service for a
year with one Thomas Booker in 1821. The appellants admitted the
settlement upon the hearing of the appeal, and relied upon a subse-
quent settlement, alleged in the grounds of appeal to have been gained
in the respondent parish by hiring and service for a year with one
Thomas Stone in or about 1824. For the purpose of establishing this
ilement the appellants called the pauper and his father, who both
so Statement condensed and part <>f opinion omitted.
BTSee, also, Prince, Adm'r, v. Smith, i .Mass. -i.v, (lxos), recognizing the
same practice Cor books at deceased tradesmen, but rejecting the particular
account, becau «.• it appeared to be a copy, Instead of the original entries.
Sec. 2) RECOGNIZED EXCEPTIONS 597
deposed to the contract of service having been for a year, though nei-
ther could recollect at what wages. The pauper further stated in evi-
dence that he worked for Mr. Stone under the contract for six months
at Gibsaven Farm in the parish of Worth ; that he then went away at
his master's request for about three weeks, during which time he
worked for his father he received remuneration from him, his boxes
and clothes remaining all the time at Mr. Stone's ; that he afterwards
returned and completed his year's service with Mr. Stone; and that
he received his whole year's wages in one sum from Mr. Stone at the
end of the year. For the purpose of rebutting this evidence, and show-
ing that no such contract of hiring and service for a year in fact took
place, the respondents called Mrs. Amelia Creasy, daughter of Mr.
Stone, who proved that her father died in 1827; that he carried on the
business of a farmer at the farm in question for upwards of twenty
years ; that in the course of his business he was in the habit of hiring
farm servants ; and that his practice was, when he did so, to make an
entry of the time and terms of such hiring in a memorandum book kept
by him for that purpose, which memorandum book was returned with
the present case. This book, which had been in the custody of Mrs.
A. Creasy from the time of her father's decease, was then produced
and tendered in evidence by the respondents, but objected to on the
part of the appellants. It contained, amongst numerous minutes of the
time and terms of hiring of farm servants, many such being for the
year, and of payments made to them in respect of their services, the
following entries with reference to the hiring and service of the pauper,
proved to be in the hand-writing of Mr. Stone ; but the witness was
not present when the entries were made.
"April 4th, 1824. W. Worsell came; and to have for the half year
40*.
"September 29th. Paid this £2.
"October 27th. Ditto came again ; and to have Is. per week ; to
March 25th, 1825, is 21 weeks two days: £1 Is. 6d. 25th. Paid this."
The sessions rejected this evidence, and quashed the order of remov-
al, subject to the opinion of the court upon the question, whether the
memorandum book containing the above entries was admissible for
the respondents or not.
Lord Denman, C. J. 58 I have always a great disposition to admit
any evidence that can reasonably be tendered : but there must be some
limits. In a case of this kind the entry must be against the interest
of the party who writes it, or made in the discharge of some duty for
which he is responsible. The book here does not show any entry oper-
ating against the interest of the party. The memorandum could only
fix upon him a liability on proof that the services referred to had been
performed : and whether, on dispute, a jury would have found him lia-
ble for the sum entered, or more or less, we cannot say. Nor was this
b" Opinions of Patteson and Wightman, J J., are omitted.
598 HEARSAY (Ch. 3
an entry made in the course of duty, as in Doe dem. Patteshall v. Tur-
ford, 3 B. & Ad. S90. The act there was performed by a principal in
the firm, and not by a clerk ; but it was done by a person acting under
the same responsibility; therefore no distinction favourable to the
respondents arises from that part of the case.
Coleridge, J. This was not an entry against the party's interest,
unless the mere making of a contract be so : and, if that were the case,
the existence of a contract would be against the interest of both par-
ties, to it. It was argued that we might inquire whether a reasonable
probability appeared that the entries were true, and that for this pur-
pose we might go into the contents of the book beyond the particular
entry. But the question is, not what may be inferred from other en-
tries, but whether the particular entry, at the time when it was made,
imported something contrary to the maker's interest. As to the other
point: it cannot be contended that Stone made these entries in the
course of any duty. In Doe dem. Patteshall v. Turford, 3 B. & Ad.
890, the person who did the act relied upon was a partner in the firm of
attorneys : but both attorneys were equally the agents of the client ; and
it was the duty of each to serve the notices by himself or by his clerk.
It was usually done by a clerk : but on the particular occasion the attor-
ney himself did it; and, while so doing, he was actually in the dis-
charge of a duty to another person. This is an entirely different case.
Order confirmed." 8
LASSONE v. BOSTON & L. R. R.
(Supreme Court of New Hampshire, 1890. 66 N. H. 345, 24 Atl. 902, 17
L. R. A. 525.)
Case, for injuries to the plaintiff from the negligent management of
the defendant's locomotive on a highway grade crossing.
June 8, 1887, the plaintiff, with one Benton, while passing over the
defendant's crossing in the village of Lancaster in a wagon drawn by
a horse, was thrown out and injured. One of the rear wheels of the
wagon was broken, and it was a question whether it was done by col-
lision with the defendant's locomotive, or by the plaintiff's cramping
the wagon and throwing himself and Benton out after passing over the
crossing. On this question the character and extent of the injury
j to the wheel became material. One Woodward, who repaired the
woodwork of the wheel, died before the trial. The plaintiff called
his administrator, who testified that he had Woodward's account book,
5» For tbe use of a book entry of a deceased person when against Interest,
lligham v. Ridgway, 10 East, 109 (1808); Doe v. Robson, 15. Bast, 82
(1812).
Compare Nhholls v. Webb, S Wheat. 320, 5 L. Ed. 628 (1820).
in Whitnash v. George, 8 B. & C. 556 (1828), an action <»n a bond against
a rarety tor the default of a deceased employe, book entries by the latter
were admitted and one of the reasons given was that by the terms of the
bond it was the duty of the deceased to keep the books, it seems probable
that in this way the duty element became overemphasized. — Ud.
Sec. 2) RECOGNIZED EXCEPTIONS 599
kept by Woodward in his lifetime, on which he found the following
charge to Benton, (the owner of the wagon,) which the plaintiff elect-
ed to have read to the jury, subject to the defendant's exception:
"June 8, 1887. To sixteen spokes, twenty cents apiece, $3.20." Be-
fore calling the administrator, the plaintiff introduced evidence tend-
ing to show that several spokes were broken, the tire badly crippled,
and the axletree sprung, and that the injury appeared to have been
caused by a blow. 60
Smith, J. The book of account of Woodward, supported by the
suppletory oath of his administrator, would be competent evidence
against Benton, in a suit by the administrator against him to recover
for the repairs of the wheel. . Dodge v. Morse, 3 N. H. 232. Is the
book evidence against third parties? Account books of a party are
not evidence where the dealing between the debtor and creditor is, as
to the parties to the suit, a mere collateral matter. Woodes v. Den-
nett, 12 N. H. 510; Little v. Wyatt, 14 N. H. 23; Batchelder v. San-
born, 22 N. H. 325; Leighton v. Sargent, 31 N. H. 119, 64 Am.
Dec. 323 ; Woods v. Allen, 18 N. H. 28 ; Harris v. Burley, 10 N. H.
171; Putnam v. Goodall, 31 N. H. 419; Brown v. George, 17 N. H.
128. These decisions were prior to the act of 1857 (Laws 1857, c.
1952, Gen. Laws, c. 228, § 13,) enabling parties to testify as witnesses
in chief. But account books are still admissible, notwithstanding the
party may testify as a witness in chief. Swain v. Cheney, 41 N. H.
232; Bailey v. Harvey, 60 N. H. 152; Sheehan v. Hennessey, 65 N.
H. 101, 18 Atl. 652. Written entries by persons deceased may, under
some circumstances, be shown in evidence against third persons.
There is a class of cases which holds that where a person has
peculiar means of knowing a fact, and makes a written entry of the
fact against his interest at the time, it is evidence of the fact as
against third persons after his death, if he could have been examined
as to it in his lifetime. Higham v. Ridgway, 10 East, 109, is a leading
case of this character. The midwife's book of account was received
for the purpose of showing the date of the birth of a person, which
became important upon the question whether he was 21 years of age
when he suffered a recovery to bar an estate tail. The entry made in
the daybook under date of April 22, 1768, and marked "Paid" in the
ledger October 25, 1768, was held admissible upon the ground that
the party had peculiar means of knowing the fact, and that the entry
was against his interest at the time it was made. "Here it appears
distinctly from other evidence," said Lord Ellenborough, "that there
was the work done for which the charge was made, * * * and the
discharge in the book, in his own handwriting, repels the claim which
he would otherwise have had against the father from the rest of the
evidence, as it now appears. Therefore the entry made by the party
was to his own immediate prejudice, when he had not only no inter-
so Statement condensed and part of opinion omitted.
600 HEARSAY (Ch. 3
est to make it if it were not true, but he had an interest the other way
not to discharge a claim which it appears from other evidence that he
had." Warren v. Greenville, 2 Strange, 1129, is a similar case.
To fortify the presumption that a surrender of a portion of the
estate in question should be presumed from lapse of time, the debt
book of a deceased attorney was produced, in which he made charges
for suffering the recovery, and other charges for drawing and en-
grossing the surrender. The charges appeared by the book to have
been paid. This was held to be good evidence after the death of the
attorney, who, if living, might have been examined to the fact. See,
also, Spiers v. Morris, 9 Bing. 687; Marks v. Lahee, 3 Bing. N. C.
408 : Whitnash v. George, 8 Barn. & C. 556 ; Goss v. Watlington, 3
Brod. & B. 132; and Stead v. Heaton, 4 Term R. 669. In Middleton
v. Melton, 10 Barn. & C. 317, the entry made by a deceased col-
lector of taxes in a private book kept by him for his own convenience,
in which he charged himself with the receipt of sums of money, was
held to be evidence of the fact of the receipt of the money in an action
against a surety on his official bond, although the parties by whom
the money had been paid were alive, and might have been called as
witnesses. The decision went upon the ground that the entry was to
the prejudice of the party who made it. To the same effect is Doe d.
Smith v. Cartwright, 1 Car. & P. 218, where the books of a collector
of taxes, charging himself with the receipt of money, also the books
of an insurance company, charging itself with receiving money, were
admitted as tending to show an occupancy of certain premises by a
party, in an action between third parties.
There is another class of cases in which entries have been received
in evidence against third persons, if the entries were made by a per-
son having knowledge of the fact entered, contemporaneously there-
with, and in a course of business. Price v. Earl of Torrington, 1
Salk. 285, is a leading case of this character. The book kept by a
clerk, in which was set down at night an account of the beer delivered
out by the draymen during the day, and to which they set their names,
according to the usual way of the plaintiff's dealing, was held good
evidence of a delivery to the defendant, the drayman who delivered
the beer sued for being dead. The cases are numerous where evi-
dence of this kind has been received upon the ground that the per-
sons who made the entries "had no interest to misstate what occurred."
In Doe d. Patteshall v. Turford, 3 Barn. & Adol. 890, a memorandum
of the fact and time of service, indorsed by one P. on a duplicate
notice to quit, was, after the death of P., held admissible as being a
minute in writing, made at the time when the fact it records took place
by a person since deceased, in the ordinary course of his business, cor-
roborated by other circumstances which render it probable that the
fact occurred. In Nicholls v. Webb, 8 Wheat. 326, 5 L. Ed. 628, the
record book of a deceased notary was held admissible. The entry in
the margin was: "Indorser duly notified 19th (17th) July, 1819;
Sec. 2) RECOGNIZED EXCErTIONS G01
the last day of grace being Sunday, the 18th." It was objected that
the evidence was in the nature of hearsay. "But the answer is," said
Judge Story, "that it is the best evidence the nature of the case ad-
mits of. If the party is dead, we cannot have his personal examina-
tion on oath, and the question then arises whether there shall be a
total failure of justice, or secondary evidence shall be admitted to
prove facts, where ordinary prudence cannot guard against the ef-
fects of human mortality? "
[After reviewing Nourse v. McCay, 2 Rawle (Pa.) 70, Poole v.
Dicas, 1 Bingham, N. C. 649, Doe v. Robinson, 15 East, 32, and Welsh
v. Barrett, 15 Mass. 380, the opinion continues :]
The case at bar does not fall within either of these classes. The
entry was made in Woodward's usual course of business, but was not
against his interest, nor can it be said that he had no interest to mis-
represent. Was the evidence for these reasons inadmissible? We
think it was admissible both on principle and authority.
[Then after reviewing State v. Phair, 48 Vt. 366, Augusta v. Wind-
sor, 19 Me. 317, and Leland v. Cameron, 31 N. Y. 115:]
Whether the entry, to be admissible, should appear to be against
the interest of the deceased person who made it, is discussed by Mr.
Starkie in his treatise upon Evidence, and his reasons for concluding
that this circumstance does not afford a sufficient test for the admis-
sion of such entries and the rejection of all others, is very satisfactory.
* * * It has been considered in several of the states that neither
the best administration of justice nor any well-established rule re-
quired the adoption of the limitation that the entry must appear to
have been made against the interest of the person making it ; and the
decisions in this country are more in accordance with those of Warren
v. Greenville and Doe d. Patteshall v. Turford than with the most of
the English cases. This court is not satisfied with the reasoning upon
which that limitation was introduced, and does not feel obliged to
adopt it." See, also, 1 Starkie, Ev. (Mete. Ed.) 299-301 ; 1 Phil. Ev.
(Cow. & H. and Edw. Notes) 347. * * *
The rule which governs the admissibility of entries made by private
parties in the ordinary course of their business, with some exceptions,
"requires, for the admissibility of the entries, not merely that they
shall be contemporaneous with the facts to which they relate, but
shall be made by parties having personal knowledge of the facts, and
be corroborated by their testimony, if living and accessible, or by proof
of their handwriting, if dead, or insane, or beyond the reach of the
process or commission of the court. The testimony of living witness-
es personally cognizant of the facts of which they speak, given under
the sanction of an oath in open court, where they may be subjected
to cross-examination, affords the greatest security for truth. Their
declarations, verbal or written, must, however, sometimes be admitted
when they themselves cannot be called, in order to prevent a failure of
justice. The admissibility of the declarations is in such cases limited
602 HEARSAY (Ch. 3
by the necessity upon which it is founded." Chaffee v. U. S., 18 Wall.
516, 541, (21 L. Ed. 908). "Entries made at the time acts took place,
by one whose duty it was to keep a record of such acts, or by the
tradesman whose habit it was, in the course of his business dealings,
to preserve a minute of them himself, ought equally to be received
as evidence of those acts. The mere fact that the accounts in the lat-
ter case may be to the interest of the party making them should not of
itself cause their rejection. In the former case it is uniformly urged
in support of the admissibility of the book of items that it will be pre-
sumed that he who was in duty bound to keep a faithful transcript
of events has performed his duty. The presumption, drawn from
honesty of purpose, appears to be just as strong in the latter case,
where the merchant writes up his own books of debts and credits, and
at least should not be overthrown by the mere appearance of a bal-
ance in his favor." Bank v. Knapp, 15 Am. Dec. 192, note and cases
cited. The person who made the entry if he is alive, and a competent
witness, and within the jurisdiction, is called to verify his writing. If
dead, or beyond reach, or incompetent, his testimony is dispensed with
ex necessitate. Bartholomew v. Farwell, 41 Conn. 107, 109; New
Haven, etc., Co. v. Goodwin, 42 Conn. 230, 231. * * *
There is a distinction between entries made in the usual and regular
course of business and a private memorandum. The latter is mere
hearsay, and inadmissible in evidence after the death of the. person
who made it. Entries made in the regular and usual course of business
stand differently. When shop books are kept, and the entries are made
contemporaneously with the delivery of goods or performance of labor
by a person whose duty it was to make them, they are admissible,
unless the nature of the subject is such as to render better evidence
attainable. Mr. Greenleaf says the remark that this evidence is admit-
ted contrary to the rules of the common law is incorrect; that "in
general its admission will be found in perfect harmony with those rules,
the entry being admitted only when it was evidently contemporaneous
with the fact, and part of the res gestae." 1 Greenl. Ev. §§ 117,
118. * * *
If book entries made by deceased persons in the regular course of
business are admissible to show identity, (State v. Phair,) dates, (Au-
gusta v. Windsor, and Higham v. Ridgway,) the surrender of an es-
tate, (Warren v. Greenville,) in an action against a surety that his prin-
cipal had received money, (Middlcton v. Melton,) the delivery of
Is, (Price v. Earl of Torrington,) the service of a notice to quit,
(Doe d. Patteshall v. Turford,) notice to an indorscr, (Nicholls v.
ib,) and that a deed was a forgery, (Nourse v. McCav.) we think
the entry on Woodward's book of accounts, made in the usual course
of his business, and which il was his duty to make, was admissible, he
being dead, to show the character and extent of the injury to the
1, which tended to show that the wheel was broken by a colli-
sion. We cannot see that it makes any difference as regards the ques-
Sec. 2) RECOGNIZED EXCEPTIONS 603
tion of the admissibility of the evidence, whether the purpose was to
show the date when the injury occurred, or to identify the wheel, or
to show the extent of the injury. Our conclusion is that there was no
error in the ruling admitting the book. The instructions requested
were properly denied. State v. Railroad, 58 N. H. 408.
Exceptions overruled. 61
Bingham, J., did not sit. Carpenter, J., dissented on the com-
petency of the shop book. The others concurred in the opinion.
INGRAHAM v. BOCKIUS et al.
(Supreme Court of Pennsylvania, 1S23. 9 Serg. & It. 2S5, 11 Am. Dec. 730.)
Error to the Common Pleas of Philadelphia county.
This suit was brought by Peter Bockius and Rudolph Bockius, plain-
tiffs below, against Francis Ingraham, to recover the value of a certain
quantity of meat, alleged to have been sold and delivered to the de-
fendant by the plaintiffs.
On the trial, the plaintiffs produced John Vasey, a witness who
swore "that he was employed by the plaintiffs, during the years 1816,
1817, 1818, 1819, to do business as a butcher for them, according to
the course of their business, that of butchers, which was to kill one
day, and carry the meat around the next day to customers, who lived
at some distance from the plaintiffs' residence. That the defendant
was a customer, and took meat. That the said John Vasey kept mem-
oranda with a pencil, for his own use, of the meat he sold, and of the
persons he sold to; two books, in which the same were made, being
produced, and part of another; but that the same were, in general,
destroyed, those being the only memoranda to be found — and the
same night or the next day, the same were entered in their books, and
that he, Vasey, stood by, and the same were called over twice, to see
if they were correct." The plaintiffs then offered the entries in the
plaintiffs' books (made from the said memoranda), as evidence of the
sale and delivery of the meat to the defendant, the plaintiffs having pre-
viously sworn, that the books into which the memoranda were so as
aforesaid copied, were their books of original entry, and the entries
made in their handwriting. The defendant objected to the reading of
the entries in the said last-mentioned books, contending that the same
were not original entries, nor the said books, books of original entry,
and prayed the court not to admit the same to be read, as evidence
to the jury, to charge the defendant. The court, however, did permit
the same to be read to the jury. The defendant then objected, that the
said last-mentioned books and entries, were not evidence of the sale
oi And so in Town of Bridgewator v. Town of Roxbury, 54 Conn. 213, »>
Atl. 415 (1SS6) book of a physician, who had become Insane, to prove rendi-
tion of services to a pauper; Sharp v. Blauton, 191 Ala. 400, 09 South. b s '.*
(1915) book of a deceased physician to show date of birth.
604 HEARSAY (Ch. 3
and delivery of goods to the defendant, and requested the court to
charge the jury, that the same were not evidence of the sale and de-
livery of goods to the defendant; but the court charged the jury, that
the same were evidence of the sale and delivery of goods by the plain-
tiffs to the defendant. To the admission of which said evidence and
charge, the defendant excepted. 62
The opinion of the court was delivered by
Gibsox, J. Nothing appears to show that the book admitted to go
to the jury, was not a book of original entries. Vasey, the witness,
acted in the capacity of a servant, to deliver meat to the customers,
and not in that book-keeper ; and his memoranda, made with a pencil,
he swore were only for his own use, to enable him to render a true
account to the plaintiffs, of the meat sold. His memoranda, therefore,
are not to be viewed in the light of the original entries of the plaintiffs
who did not direct them to be made; or at least, for any other pur-
pose than to obtain an accurate account of the sales to his customers.
It is clear, these memoranda 63 were not considered as evidence, to
charge the customers, either by the plaintiffs or Vasey; or as anything
else than brief notes of the transactions occurring in the course of the
«2 Statement condensed.
as And so where the entries were made on a slate and then transferred to
a book. Faxon v. Hollis, 13 Mass. 427 (1816).
Per Curiam in Forsyth v. Norcross, 5 Watts (Pa.) 432, 30 Am. Dec. 334
(1S36): "An entry on a card or a slate, is but a memorandum preparatory to
permanent evidence of the transaction, which must be perfected at or near
the time, and in the routine of the business. But the routine must be a rea-
sonable one ; for there is nothing in the condition of a craftsman to call for
indulgence till his slate be full, or till it be convenient for him to dispose of
the contents of it. In Ingraham v. Bockius, 9 Serg. & R. (Pa.) 285 [11 Am.
Dec. 730 (1823)], and Patton v. Ryan, 4 Rawle (Pa.) 410 [1834], the entries
were transferred the same evening or the next morning ; and they ought in
every Instance to be so hi the course of the succeeding day. In Vicary v.
Moore, 2 Watts (Pa.) 458 [27 Am. Dec. 323 (1834)], entries transferred from
scraps of paper carried about in the pocket during one or more days, were
held to be inadmissible; and on this principle, the book was, in the present
i 1 1 stance, incompetent,"
Compare Bigelow, J., in Barker v. Haskell, 9 Cush. (Mass.) 21S (1852), where
it appeared that in some instances two or three days elapsed before the en-
tries on the slate were transferred to the book: "2. The next objection is,
that the entries were not seasonably made on the book. The evidence, as
reported, fails to sustain this objection; the fair inference being, that they
>[ from the slate daily. But if it were not so, it by no means fol-
lows that the hooks would be inadmissible to prove the charges. Although
the rule is well Bettled, that the entries, to be competent, must have been
made at or near the time the charges were Incurred, it does not fix any pre-
me within which they must bo made. There is no inflexible rule re-
quiring them to be made on the same day. Morris v. Briggs, 3 Cush. (Mass.)
342 [1849]. in this particular, every ease must he made to depend very much
apon its own peculiar circumstances, having regard to the situation of the
the kind of business, the mode of conducting it, and the time and
manner of making the entries. Upon questions of this sort, much musl be
lefi to the Judgmenl and discretion of the Judge who presides at the trial;
ause, having the bool - before bim, and understanding all the circumstanc-
better able to decide upon all questions Involving the
fairness and regularity of the entries sought to be proved."
Sec. 2) RECOGNIZED EXCEPTIONS 605
business, and made at the time, with a view to be used when the regu-
lar entries came to be made in the books. These entries, the witness
swore, were made on the night of the day of delivery, or the next morn-
ing, while the witness stood by, and the memoranda were called over
twice, to see whether everything was right. This case is very like
Curren v. Crawford, 4 Serg. & R. 3, except that it is stronger; the
person who delivered the articles charged, being produced, and the
original memoranda either produced, or their loss proved. What more
could possibly be done? The entries were made in a course of dealing
between the parties, at or about the time of the respective transactions,
and in the usual course of the plaintiffs' business; this was, in all
reason, sufficient to entitle them to be read.
Judgment affirmed. 6 *
KENT v. GARVIN.
(Supreme Judicial Court of Massachusetts, 1854. 1 Gray, 148.)
Assumpsit for thirty barrels of ale sold and delivered to the de-
fendant. The case was referred to an auditor, whose report the plain-
tiff offered in evidence at the trial in the court of common pleas.
From this report it appeared that at the hearing before the auditor,
the plaintiff, to prove his account, offered his book of original entries,
and called as a witness the clerk who kept the books, who testified, that
the book produced was the plaintiff's book of original entries ; that he
made the entries ; that he took them from the delivery book of the
drayman every Saturday night; that the drayman stood by his side,
and read off the entries, and he copied them into the plaintiff's book;
and then the drayman read them off from the delivery book, and
compared them, and if they were right, the witnesses checked them in
the plaintiff's book; that this was done in the present case; and that
the drayman was now in California. It also appeared by the audi-
tor's report that most of the barrels were delivered on Monday.
The defendant objected to the admission of the auditor's report for
the following reasons : (1) The drayman's book, and not the book pro-
duced by the clerk, was the plaintiff's book of original entry. (2) The
drayman's book, if not the book of original entry, contained the origi-
nal memoranda from which the plaintiff's clerk made the entries sworn
to by him. As the drayman is not produced, his unsupported declara-
tions to the clerk are the only evidence to show by whom or when such
e* In Burton v. Plummer, 2 Ad. & El. 341 (1S43), where a clerk had made
the entries in a "waste" book from which they had been transferred to a
ledger by the master, and checked by the clerk at the time, Taunton, J., ob-
served: "The wutness proved that these entries, like all the others, were
shown to him, and that he checked the entries himself. The entries so made
by the master stand upon the same footing as if they hud been made by the
witness himself."
606 HEARSAY (Ch. 3
memoranda were made. (3) If the drayman's memoranda are proved
by his declaration to the clerk, as the drayman read off to the clerk on
Saturday night the deliveries of the whole week and as most of the
barrels were delivered on Monday, six days elapsed, in most instances,
between the delivery and the charge. Declarations made more than one
day after a transaction cannot be considered as of the res gestae.
But Perkins, J., overruled these objections, and admitted the report
in evidence. Whereupon the jury returned a verdict for the plaintiff;
and the defendant alleged exceptions.
Bigelow, J. It has long been the settled law of this common-
wealth, that it is not a valid objection to the competency of a party's
book, supported by his suppletory oath, that the entries therein were
transcribed from a slate or memorandum-book in which they were first
entered for a temporary purpose, although the entries on the slate or
memorandum were made by a person other than the party who copied
them on to the book. In such cases, the entry of the charges in the
regular day-book of the party is deemed to be the first and original
entry, and as such, competent proof, with the oath of the party, of the
charges therein made. Faxon v. Hollis, 13 Mass. 427; Smith v. Sand-
ford, 12 Pick. 139, 22 Am. Dec. 415 ; Ball v. Gates, 12 Mete. 491 ;
Morris v. Briggs, 3 Cush. 342. But in all these cases it will be found,
that in addition to the oath of the party who made the entries in the
day-book, the testimony of the person who made the entries on the
slate or memorandum-book was adduced, to prove that articles were
delivered or work performed of a character similar to those charged
on the day-book, at or about the time of the entries therein. The
charges in the book, supported by the oath of the party making the en-
tries, are often the only evidence of dates, items and amounts, which
individuals cannot well retain in their memories.
The case at bar goes beyond any adjudged case in this common-
wealth. The attempt is here made to put in evidence the book of a
party, supported by the oath of his clerk who made the entries, for
the purpose of proving the sale and delivery of articles made by a third
person in the employment of the plaintiff, whose evidence is not pro-
duced in support of the charges ; nor is any evidence offered from any
source other than from the book, to show that at the time the charges
were made, any articles, similar in character to those charged, were
delivered by the plaintiff to the defendant. It is manifest that here
an important link in the chain of evidence is wanting. The clerk who
made the entries had no knowledge of the correctness of any charge
on the book. All he can say is, that the drayman, who delivered the
articles for the plaintiff, gave to him from his memorandum-book the
items which were entered on the book. The case therefore rests on
the mere unsupported statement of <'i third person, whose fidelity and
accuracy there are no means of ascertaining and testing. It is in its
nature mere I iy testimony. To permit the books of a party to be
competent proof under such circumstances, would be extending the
Sec. 2) RECOGNIZED EXCEPTIONS 607
rule applicable to this anomalous and dangerous species of evidence
quite too far.
The book in the present case is also liable to the further objection,
that the entries were not made, in many instances, until six days after
the date of the alleged delivery of the articles to the defendant. Of it-
self this objection would not perhaps be fatal to the competency of the
book, but taken in connection with the absence of the testimonv of the
person who delivered the articles and made the original memorandum,
it renders the book entirely inadmissible. Kessler v. McConachy, 1
Rawle (Pa.) 441 ; McCoy v. Lightner, 2 Watts (Pa.) 350, 351.
For these reasons we think that the court below erred in permitting
the auditor's report, founded on the charges in the book, to be read to
the jury in support of the plaintiff's claim.
Exceptions sustained. 65
CHISHOLM et al. v. BEAMAN MACHINE CO.
SAME v. KUTSCHE.
(Supreme Court of Illinois, 1S96. 160 111. 101, 43 N. E. 796.)
MagrudEr, J. 66 * * * Upon the trial below the plaintiffs were
permitted to introduce in evidence the books of account of the Bea-
man Machine Company, over the objection of the defendants, to which
ruling exception was duly taken. The evidence shows the following
mode of keeping account of the time spent in work upon the ma-
chines : Each workman, at the end of each' day, made out a time
check or slip in his own handwriting, stating therein the number of
the piece he had worked upon, and the number of hours he had worked
thereon during the day. At the close of the day he dropped this time
65 Compare Price v. Torrington, ante, p. 581.
Lathrop, J., in Gould v. Hartley, 187 Mass. 561, 73 N. E. 656 (1905): "While
the plaintiff, to prove some of the items of the account, put in evidence mem-
oranda with the defendant's signature attached, as to the other items the
only offer of proof was a book alleged to have been kept by the plaintiff in
the usual course of his business. This book was kept by a clerk in the office
of the hotel, who had no personal knowledge of the items of goods sold by the
cigar department and the bar department of the plaintiff's hotel, and whose
only knowledge was derived from slips sent to his office from these departments
by a bell boy. The original slips were not produced, and neither of the em-
ployes who had charge of the bar or the cigar department was called to tes-
tify. Under these circumstances, we are of opinion that the judge erred in
admitting the book in evidence. This was decided in Kent v. Garvin, 1 Gray.
148 [1S54], and the rule there laid down has been recognized ever since to
be the law. Harwood v. Mulry, 8 Gray, 250, 252 [1S57] : Miller v. Shay, 145
Mass. 162, 13 N. E. 468, 1 Am. St. Rep. 449 [18S7] ; Donovan v. Boston vV
Maine R. R., 15S Mass. 450, 453, 33 N. E. 5S.°, [1893]. The books of a bank
stand on a different footing. Produce Exchange Trust Co. v. Bieberbach, 170
Mass. 577, 5S7, 5S N. E. 162 [1900].
Exceptions sustain <!.
cc Statement and part of opinion omitted.
608 HEARSAY (Ch. 3
slip into a locked box, arranged like a letter box, in the tool room of
the shop. The next morning the foreman of the shop took these time
slips out of the box, checked them over, went to see the workman
who made the slip if anything was wrong about it, marked the slips
"Approved" which were found to be correct, and then turned them
over to the bookkeeper in the usual way. The bookkeeper, on the
same day or the following day, made a transcript of these tickets or
time slips into a book called the "time book" ; the entries therein
showing the number of the piece of machinery worked upon, the name
of the workman, and the amount of the time. During the time when
the work was done upon these brick machines, from the early part of
May, 1890, to the early part of December, 1890, the entries in the time
book were made by two bookkeepers. When the books were intro-
duced, these bookkeepers were placed upon the stand and swore that
the entries in the time book were correct ; that such entries were a
correct transcript of the tickets, and for the work done in the shop, as
shown by the tickets; that the entries were made from the tickets
made out by the men in the shop, and generally handed to the book-
keeper by the foreman the next morning; that the tickets were ex-
amined by the bookkeepers, and when any errors were found, they
were corrected by the foreman and the bookkeeper before the entries
were made in the book. The foremen who had charge of the work-
men during the progress of the work upon the machines, and who ex-
amined and approved of the tickets or time slips, were also put upon
the stand, and swore to their signatures upon the time slips ; that they
had looked them over, and had superintended the men, and had had
charge of their work; that the tickets, turned in for the work, as
signed and approved by them, were correct, and correctly represented
the time ; and that the work specified on the tickets was done. Some
5,000 of these original tickets were brought into court during the
trial of the cases below, and it sufficiently appears that they were con-
sidered as being introduced in evidence. One of the foremen testified
that he had examined them all carefully on the morning of the day on
which he testified. Before the trial they were carefully examined by
the bookkeeper of appellants in the presence of the bookkeeper of ap-
pellees ; and, a short time before the trial, Kutsche, the president of
the machine company, and Molliter, one of its bookkeepers, checked
over the entries in the time book from the tickets, and found only
about 10 entries, out of some 5,000, for which there were not corre-
sponding tickets. It appears, from the evidence, that the foremen or
superintendents employed by the machine company not only super-
intended the workmen, but actually worked with them upon the ma-
chines during their construction, thus having an opportunity to see
what work was done. * * *
We think that the books were properly admitted in evidence in con-
nection with proof of the facts and circumstances already detailed.
Their mere admission was not a determination of the weight to which
Sec. 2) RECOGNIZED EXCEPTIONS G09
they were entitled as evidence, and it was the privilege of the appellants
to attack their reliability by any legitimate testimony tending to show
their incorrectness. It is claimed by the appellants that the workmen
who did the work on the machines, and made out the time slips, should
have been produced, and asked whether they actually worked as many
hours as were indicated upon the slips. This, certainly, would have
been the best evidence upon the subject; but it is easy to see that, upon
the trial of a case like this occurring long after the transactions de-
noted by the entries, it might not be possible to find the men who made
the slips. The books themselves were accompanied by the testimony
of the bookkeepers who made the entries that such entries were cor-
rectly made from the time slips, and by the testimony of the foremen,
who superintended the work as done, and did a part of it themselves,
that the time slips were correct, and that the work represented thereby
was actually done.
The entries in the account book, or book of original entries, may be
proved by the clerk who made them, if he is alive, and can be pro-
duced. In order to make the book admissible, it is necessary that the
entries therein should have been made in the ordinary course of busi-
ness, by a person whose duty it was to make them, and that they should
have been made contemporaneously with the doing of the work for
which the charges are made, so as to form a part of the res gestae.
House v. Beak, 141 111. 290, 30 N. E. 1065, 33 Am. St. Rep. 307. The
time slips were made on the day the work was done so far as they
were made by the workmen, and on the morning after the work was
done so far as they bore the signatures and marks of approval of the
foremen, and they were transcribed into the time book, as a general
thing, on the day after the work was done. Whether, therefore, the
time book or the time slips be regarded as containing the original
entries, they were made so near the time of the actual performance
of the work as to be justly regarded as forming a part of the res
gestae. It must be remembered that the time slips were examined and
compared by the foremen, and were marked "Approved" by them, and
contained their signatures, and to that extent were made as much by
them as by the workmen. The time slips not only contained mem-
oranda made by the workmen, but also memoranda made by the fore-
men. Hence, there was testimony by the parties making the time
slips as well as by the parties making the entries in the time book.
Where the clerk who makes the entries has no knowledge of their
correctness, but makes them as the items are furnished by another, it
is essential that the party furnishing the items should testify to their
correctness, or that satisfactory proof thereof, — such as the transac-
tions are reasonably susceptible of, — from other sources, should be pro-
duced. House v. Beak, supra. Here the foremen, who furnished the
items to the bookkeepers, testified to their correctness. If their knowl-.
edge of the work done was not as full and complete as the knowledge |
Hint.Ev— 39
CIO HEARSAY (Ch. 3
of the workmen themselves, yet, as they superintended the doing of
the work, and participated in its performance, their testimony was
such satisfactory proof of the correctness of the items as the transac-
tions were reasonably susceptible of. * * *
Judgment affirmed. 67
SQUIRES v. O'CONNEIX et al.
(Supreme Court of Vermont, 1916. 91 Vt. 35, 99 Atl. 2GS.)
Munson, C. J. 68 The plaintiff claims to recover a balance due him
for cutting, sawing, and sticking up lumber under a contract with the
defendants. The amount of the lumber is the only thing in dis-
pute.
The plaintiff testified that he sublet the cutting and drawing to one
party, and the drawing out and sticking up to another ; that he was not
personally on the job, except that he went to the mill about once in
two weeks ; that he employed a sawyer and a man to measure the
lumber; that Rowland was the measurer until the job was nearly
completed, and that Carruth then took his place; that the measure-
ment was kept on tally boards in the mill, and that when he went there
he took figures from the tally board and examined the markings on
the lumber and the measurement of it ; that he received figures from
Rowland and Carruth as to the lumber measured and set them down
correctly at the time in a book kept at his house ; that he had no other
account of the lumber, the tally boards and the memoranda obtained
from the measurers having been destroyed. The book was received
in evidence in connection with the testimony of the plaintiff, against
the defendants' objection and exception. The objection was general,
but the grounds of objection were manifest from the detailed explana-
tion of the manner in which the business was done and the account
kept ; and the book was doubtless received when it was in the expecta-
tion that Rowland and Carruth would be called to authenticate the
account. The plaintiff was then allowed to testify that the book rep-
resented the correct amount of lumber as reported to him by Row-
land and Carruth, and to give from it the total amount of lumber saw-
ed on the job. The statement of the amount was objected to as hear-
say. Rowland was a witness later, and testified that he was ex-
perienced in measuring lumber, and that he measured and marked
t!:is lumber correctly, and correctly reported the account to the plain-
tiff from time to time when he was at the mill. This verified as much
of the account as was based on Rowland's reports, but the statement
07 Km- n similar Situation, sec Mayor, <•!<'., of New York City v. Second A vi'.
Ry. Co., L02 N. V. 572, 7 N. E. 905, 55 Am. Rep. 839 (1886).
■ Part of opinion, aa well senting opinion of Munson, C. J., are
omit
Sec. 2) RECOGNIZED EXCEPTIONS Gil
of the total amount of lumber sawed remained hearsay, unless the pro-
duction of Carruth's evidence was legally dispensed with.
The defendants claim that the book received in evidence was not a
book of original entry, but that the original entries were those on the
tally boards kept by the measures and the memoranda taken by the
plaintiff when on the lot. This position is not well taken. See Gifford
v. Thomas, 62 Vt. 34, 19 Atl. 1088. It may be stated generally that
the first regular and collected record is the original book, although
made up from casual or scattered memoranda. 2 Wig. Ev. § 1558.
It may be the party's original book of accounts, even if made wholly
from the memoranda and reports of the employes doing his business,
and evidencing nothing of which he or his bookkeeper had personal
knowledge. Note 138 Am. St. Rep. 456. The fact that the memo-
randa and reports have been lost, or intentionally destroyed as unim-
portant, will not make the book inadmissible. Mahoney v. Hartford,
etc., Corp., 82 Conn. 280, 73 Atl. 766.
The total given from the book covered the lumber measured and re-
ported by Carruth. Carruth was not a witness; and the exceptions
show that this was because he was absent from the state, and show
further that it did not appear but that the plaintiff knew where he
was, so that he could have taken his deposition. There are authorities
which hold that the mere fact of absence from the state is sufficient to
justify the court in dispensing with evidence of this character, but we
know of no decision in this state which goes to this length. It seems
to be well settled, however, that the various inferior employes of a
large business, whose memoranda of time, material, receipts, deliv-
eries, and the like are the bases of the account, need not be called as
witnesses. But the ordinary protection of the other part of the busi-
ness world seems to require that the supervising employes, under
whose management and observation this work goes on, and who re-
ceive, consolidate, and transmit this data to those who make up the
permanent account, should be called if reasonably accessible. If this
is not required, the matter will rest entirely upon the fact that it is
something done in the regular course of the business, and not at all
upon the oath of any one having personal knowledge of it.
Mr. Wigmore, in treating of regular entries as an exception to the
hearsay rule, formulates the rule that where an entry is made by one
person in the regular course of business, recording an oral or written
report, made to him by another in the regular course of business, of a
transaction lying in the personal knowledge of the latter, there is no
objection to receiving that entry, provided the practical inconvenience
of producing as witnesses the persons thus concerned would in the par-
ticular case outweigh the probable utility of doing so. 2 Wig. Ev. §
1530, p. 1895. The application of this rule manifestly involves a de-
termination by the trial court of a preliminary question, regarding
which much must necessarily be left to its sound discretion. 2 Wig. Ev.
S 1530. The showing that Carruth was out of the state at the time of
612 HEARSAY (Ch. 3
the trial support? the court's ruling admitting the book as offered. The
controlling principle is that of practical necessity, and Carruth's un-
availability as a witness was a sufficient ground for dispensing with
his testimony in corroboration of the entries made on his reports.
Griffin v. Boston & M. R. Co., 87 Vt. 278, 292, 89 Atl. 220; Osborne
v. Grand T. Ry. Co., 87 Vt. 104, 8S Atl. 512, Ann. Cas. 1916C, 74;
2 "Wig. Ev. §§ 1521, 1530. In the circumstances we must presume in
support of the ruling that the trial court was justified in finding the
necessity established. * * *
Judgment affirmed. 89
GIVENS v. PIERSON'S ADM'X.
(Court of Appeals of Kentucky, 1916. 167 Ky. 574, 181 S. W. 324, Ann. Cas.
1917C, 956.)
Carroll, J. 70 The principal question in this case grows out of the
alleged insufficiency of the petition and evidence to support a claim for
$258.46 asserted by the administratrix of W. W. Pierson against the
appellant, T. K. Givens.
\Y. W. Pierson died in February, 1912, and thereafter his adminis-
tratrix brought suit to recover a balance of $224.27 alleged to be due
her intestate on an open account. The first item on the ledger ac-
count introduced as evidence reads, "March 1, 1909; balance transfer-
red, $258.46;" and this item is followed by other items of indebted-
ness running from March 4, 1909, to March, 1911, during which time
the account was credited by various items, leaving due, according to
the face of the account, the balance stated. * * *
On the trial of the case Givens was not offered as a witness, and
the only witness introduced by the administratrix was Walter E. Mark,
who was the office manager and bookkeeper for Pierson from 1895
until shortly before the death of Pierson in 1912. In reference to the
matter of this $258.46, his testimony, in substance, was that Pierson
conducted a large mercantile establishment employing a number of
clerks, among them being Givens, who also was assistant manager. He
said he was bookkeeper during the whole time that Givens' account was
being made, and that when Givens purchased goods on credit in the
store, an entry would be made of the purchase on a ticket such as wa-
in general use in the store by the clerk making the sale, and that the
ticket would be given to him the next day when an entry showing the
transaction as it appeared on the ticket would be made by him on a
billhook. That when Givens drew money from the store, as he often
»» See, also, West Virginia Architects & Builders v. Stewart, 6S W. Va
506, 70 S. E, 1K5, 36 L. R. A. (X. S.) 899 (toil), annotated, where the person
reporting to the bookkeeper had become disqualified by the death of the
adverse party.
to Tart of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS G13
did, in payment or part payment of his salary, a ticket showing the
amount that he received would he made out by the cashier, and on the
next day he would enter the transaction shown by the ticket on a cash-
book and soon afterwards, in due course of business, the entries on the
billbook 'and the cashbook would be transferred by him to the ac-
count of Givens kept in the ledger, also made up by him. That this
was the method pursued with all customers of the store during the
time he was bookkeeper, and at the end of each month he would pre-
sent Givens a statement of his account taken from the ledger, showing
the items purchased and the amounts charged therefor, as well as the
amount of cash received.
He further testified that the account of Givens on the ledger intro-
duced on the trial was transferred to that ledger by him from another
ledger also kept by him that had been filled up. It also appeared from
his testimony that the tickets made out by the clerks and cashier as well
as the billbooks and cashbooks, and all the ledgers except the one in-
troduced on the trial, had been destroyed in a fire. The witness said
he did not have any personal knowledge of the merchandise account
or cash account of Givens except as it appeared on the tickets given to
him and from which he made the original entries in the billbook and
the cashbook, which were afterwards transferred by him to the ledger.
Whether the entries on these tickets were correct or not, he did not
know. But he did know the method of business and that the entries
of the transactions had with Givens were kept on the tickets and in the
books in the usual and customary manner, and that the billbooks and
cashbooks showed correctly the state of his account as exhibited on the
tickets made out when the merchandise was purchased or the cash ad-
vanced, and also knew that the ledger accounts were correctly kept and
the entries therein correctly transcribed by him from the billbooks and
cashbooks and correctly carried over by him from one ledger to
another.
It will thus be seen that the ledger produced in court, and which
showed in the first entry on the account of Givens that there had been
transferred from another ledger a balance due by him of $258.46, was
not a book of original entry. The first original entry, strictly speaking,
was the entry made by the cashier who advanced the money or the
clerk who sold the goods, and the next entry was the entry made by
this bookkeeper on the daybook and the cashbook ; and the next entries
were those made by this bookkeeper in transferring the items from
the billbook and the cashbook to the ledger. So that the witness was
only able to state from personal knowledge that the entries made on
the billbook and cashbook were correct copies of the entries made on
the tickets, and that the entries on the billbook and cashbook were
correctly transferred to the ledger, and when the first ledger on which
the account appeared was filled, it was correctly transferred from that
ledger to the one introduced on the trial.
The question, therefore, is : Should the book that was produced be
G14 HEARSAY (Cll.
treated, under the circumstances, as a book of original entry and en-
titled to the same weight as the billbook or cashbook in which the entry-
was first made or the ledger to which the account was first transferred
from the billbook and cashbook? It is manifest that unless the entries
on this ledger should be so treated, the administratrix totally failed to
make out her case, because if the entry on the ledger introduced, show-
ing the state of Givens' account on March 1, 1909, taken in connection
with the testimony of the bookkeeper, should not be treated as sub-
stantive evidence of the existence of this indebtedness of Givens, there
was no evidence offered tending in any manner to establish his indebt-
edness in the sum of $258.46.
There appears to be some conflict in the authorities on the question
of the admissibility of book entries such as were relied on in the trial
of this case to establish the indebtedness of Givens. Indeed an inves-
tigation of the cases will disclose that some courts have made what
seem to be refined and apparently unsubstantial distinctions in deter-
mining what are and what are not original entries in the sense that
they may be received as substantive evidence. The general rule, how-
ever, on the subject of the admissibility of book entries as substantive
evidence of the fact that the transaction disclosed by the entry actually
took place is usually stated by the authorities in substantially the same
form. But in the practical application of the rule to the different
facts and circumstances arising in the trial of cases, it has been found
necessary, in order that the rule should be of any value, to introduce
many exceptions. * * *
But we may say at the outset that the authorities are very generally
agreed that the entries on tickets or stubs or slips of paper made out
by clerks in stores in the regular course of business and at the time
the transaction actually happens, are not the original entries in the
meaning of the rule. The original entry is the entry first made in the
I regular course of business in a permanent book, as, for example, in this
case in the billbook or cashbook. Entries first made on tickets or stubs
or slips of paper by clerks or others are treated as mere memoranda,
admissible as evidence for the purpose of refreshing the memory of
the party who made them, if he is introduced as a witness, but not as
independent or substantive evidence of the fact that the transaction
took place. Chamberlayne on Evidence, vol. 4, §§ 3085-3089; Elliott
on Evidence, vol. 2, § 460.
There is also some authority to the effect that if entries are made on
books such as billbooks or cashbooks, or even ledgers, from tickets or
stubs or slips of paper made out by clerks or cashiers at the time the
transaction occurred, they are not admissible as substantive, independ-
ent evidence of the transaction unless the person making the entry on
the billbook or cashbook or ledger has some personal knowledge of the
transaction, or the clerk or cashier who made out the original ticket or
slip <an testify as to the correctness of the entry. See cases cited in
note to Smith v. Smith, 52 L. R. A. 545.
Sec. 2) RECOGNIZED EXCEPTIONS 615
But there is much authority for the rule, which we think the better"}
one, that where the entry is made in the usual and regular course of)
business on a permanent book, whether it be a daybook or billbook
or cashbook or ledger, from memoranda or tickets or stubs or slips
made out in the usual way by clerks when the transaction occurred,
these book entries are admissible as original and substantive evidence I
of the transaction whether the person who made the entries be living |
or dead at the time of the trial, and without reference to whether the (
original tickets or stubs or slips are available or the clerk who made
the memoranda on them can be produced. If the person who made the
first book entries be dead, the entries are admissible, if proven to be in
his handwriting and in the regular course of business. If he is living
and his evidence as a witness can be secured, it will of course be compe-
tent to show by him the fact that he made the entries and the circum-^,
stances under which they were made.
In Wigmore on Evidence, vol. 2, § 1530, the reasons for this en-
largement of the rule are thus stated, following a discussion of the
grounds on which they rest:
"The conclusion is, then, that where an entry is made by one person
in the regular course of business, recording an oral or written report,
made to him by one or more other persons in the regular course of
business, of a transaction lying in the personal knowledge of the latter,
there is no objection to receiving that entry under the present excep-
tion, provided the practical inconvenience of producing on the stand the
numerous persons thus concerned would in the particular case out-
weigh the probable utility of doing so. Why should not this conclu-
sion be accepted by the courts? Such entries are dealt with in that
way in the most important undertakings of mercantile and industrial
life. They are the ultimate basis of calculation, investment, and gener-
al confidence in every business enterprise; nor does the practical im-
possibility of obtaining constantly and permanently the verification of
every employe affect the trust that is given to such books. It would
seem that expedients which the entire commercial world recognizes
as safe could be sanctioned, and not discredited, by courts of justice.
When it is a mere question of whether provisional confidence can be
placed in a certain class of statements, there cannot profitably and
sensibly be one rule for the business world and another for the court-
room. The merchant and the manufacturer must not be turned away
remediless because methods in which the entire community places a
just confidence are a little difficult to reconcile with technical judicial
scruples on the part of the same persons who, as attorneys, have al-
ready employed and relied upon the same methods. In short, courts
must here cease to be pedantic and endeavor to be practical."
It is also true that this character of evidence may sometimes give to
the merchant an advantage and make it difficult for the person charged
to disprove the correctness of the entry. But the rule admitting this
species of evidence has been so sufficiently tested by the experience of
GIG HEARSAY (Ch. 3
the years it has been in effect and so generally approved as to show that
little, if any, injustice has been perpetrated under it. And if it was
not admissible to prove accounts in this way, it would many times
happen that the merchant would be unable to enforce the collection of
a just claim, if the debtor was disposed to question all book entries
that could not be otherwise proven on account of the absence or
death of the persons who sold the articles or made the entries and
the loss of books.
It will be noticed that the bookkeeper testified that some of the items
going to make up this balance consisted of cash advanced, but, under
the circumstances of this case, we see no sound reason for making any
distinction between the items of cash and the items of merchandise.
The advancements of cash were made in the regular course of business
and in the manner employed for the payment of his salary, and the
tickets containing these cash items, and the books themselves on which
these items of cash were entered, were as much a part of the regular
course of business as were the entries made with respect to the mer-
chandise purchased by him. Having this view of the matter, the court
should have directed a verdict for the administratrix, at the conclu-
sion of the evidence, in place of submitting the matter to a jury.
* * *
Judgment affirmed. 71
7i Marshall, J., in F. Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38, 71
N. W. 69 (1897): " * * * From the very nature of the case, the only evi-
dence of a definite character that could be produced was such as could bo
given by aid of the books. The stock of goods that existed, according to the
inventory of February, 1891, had been added to in the regular course of busi-
ness for over a year and a half, and the whole had been reduced by daily
sales during that time. The multitude of transactions during such period,
of goods taken in and sent out, could not be established by evidence from
the mouths of witnesses. The only evidence that existed was locked up in
the books. Such being the case, upon such books being reasonably verified
as correct records of the daily transactions in the business as such transac-
tions were regularly reported to the office to be recorded in such books, with
proof that the books were relied upon by plaintiff solely as a repository of
the facts in regard to the business, and that they were uniformly found to
be correctly kept, a witness who had occasion to refer to them from time to
time, and had thereby, and through a general knowledge of the business, been
convinced of their correctness, might properly testify, by their aid, to their
contents as facts, without having personal knowledge of such facts independ-
ent of tbe books, and without ever having had any other knowledge of nil
the individual transactions than such as one might be reasonably expected
to have by generally overseeing a business. Such evidence would not be con-
clusive by any means, but would constitute evidence bearing on the question
in suit proper to be submitted to the jury with all the other evidence in the
•."
much the same rule applied to a train dispatcher's booh made up from
telegraphic reports from various stations. Firemen's Ins. Co. v. Seaboard
Air Line R. Co., L38 N. 0. 42, ■"><> S. B. 452, 107 Am. si. Rep. -".it (1905); Lou-
isville & N. R. Co. v. Daniel, 122 Ky. 256, '.)i s. W. 691, :: L. R. a. (N. S.)
1190 (1906); Donovan v. Boston & Mt. i:. B., L58 -Mass. 150, :::; N. E. £
(1893).
Sec. 2) RECOGNIZED EXCEPTIONS 617
VI. Official Registers and Reports
BIRT v. BARLOW.
(Court of King's Bench, 1779. 1 Doug. 171.)
This was an action of trespass and assault, for criminal conversa-
tion with the plaintiff's wife. It was tried before Blackstone, Justice,
at the last Assizes for Kent, when, by the direction of the Judge, the
plaintiff was nonsuited.
On Monday, the 26th of April, Rous moved for a rule to shew
cause, why the nonsuit should not be set aside, and a new trial granted.
This day BullER, Justice, read the Judge's report, which was as
follows :
The first witness called by the plaintiff was Thomas Sharpe, who
proved a copy of the register of the parish of St. Alfred, Canterbury,
in haec verba — "1767, No. 106. John Birt, Esq; of the parish of St.
Margaret, Rochester, Co. Kent, and Harriot Champneys of this parish,
married by banns 15 December 1767, by John Lynch, minister. Wit-
nesses, Robert Lynch, Francis Champneys, Anne Lynch, Elizabeth
Lync*h." Another witness, (Susanna ) was next called, to prove
the fact of adultery. I was of opinion, that this was not sufficient
evidence of the marriage, but that the identity of the parties must be
proved, else it might possibly be a register of the marriage, not of the
plaintiff and his supposed wife, but of some other persons of the same
name.
The counsel for the plaintiff then said, that, in the course of their
examination to prove the adulterous intercourse, it would come out
from the mouths of the witnesses, that the plaintiff's reputed wife
was of the name and family of Champneys, and that they have long
cohabited together, and were esteemed to be man and wife by all their
friends and relations. I still thought that the evidence, so opened,
would be insufficient, holding, in conformity to the case of Morris
v. Miller, reported in 4 Bur. 3057, (and of which I also had a manu-
script note of my own,) that this was the only civil case in which proof
of an actual marriage was requisite, as contradistinguished from ac-
knowledgment by the parties, cohabitation, reputation, &c. That the
best proof that could be given of an actual marriage, was by some
person personally present at the solemnity, which, in my small ex-
perience, I had never seen an instance of not producing. If it did not
appear that there were persons present besides the minister, and he
was dead, perhaps other collateral proof might be admitted, which
might render probable the identity of the plaintiff and his wife, and the
persons whose marriage was so registered. But that, in the present case,
there appeared to have been no less than five witnesses present at the
marriage thus registered, which was only eleven years ago. That the
marriage act had directed the witnesses to subscribe their names to the
61S HEARSAY (Ch. 3
register, in order to facilitate the investigation of the legal evidence
of marriages. And that till these five witnesses and the minister were
accounted for, as by shewing them all dead, or the like, I could not ad-
mit less proof than that of some person present to demonstrate the iden-
tity of the parties.
I accordingly nonsuited the plaintiff. After which a proctor from
the ecclesiastical court, then present, declared openly that he had been
subpoenaed by the plaintiff to prove, and could prove the taking out
of a licence for the marriage of the plaintiff and his reputed wife. I
mention this circumstance, though it could be no ground of my deter-
mination, as it shews something more than a bare possibility that
the plaintiff and his wife were not the identical persons so registered
as marrying by banns. 72
Lord Mansfield. From the report, it appears, that the ground
of the nonsuit was an idea, that the identity must be proved by the
minister, or some of the attesting witnesses, unless their not being
produced is accounted for, in the same manner, as is required in the
case of subscribing witnesses to a deed. The counsel for the plain-
tiff stated other evidence of the identity ; whether such as would have
been sufficient when produced (as that might, or might not be, accord-
ing to the differences arising from the manner of stating it,) I give no
opinion. But the judge decided, that it was necessary to produce
some of the subscribing witnesses. The clauses in the marriage act
relative to registers are of infinite utility to the kingdom. They were
meant, as well to prevent false entries, as to guard against illegal mar-
riages without licence, or the publication of banns. The registers are
directed to be kept as public books, and accompanied with every means
of authenticity. But, besides facilitating and ascertaining the evidence
of marriages, they were intended for other wise purposes. They are
of great assistance in the proof of pedigrees, which has become so much
more difficult since inquisitions post mortem have been disused, that it
is easier to establish one for 500 years back, before the time of
Charles II. than for 100 years since his reign. But this advantage
would be lost, and it would be very prejudicial, if the act were so
construed as to render the proof of marriages more difficult than for-
merly. I take it for granted, that the law stands as it did before in
that respect.
Registers are in the nature of records, and need not be produced,
nor proved by subscribing witnesses. A copy is sufficient, and is proof
of a marriage in fact between two parties describing themselves by such
and such names and places of abode, though it does not prove the iden-
tity. An action for criminal conversation is the only civil case where it
is necessary to prove an actual marriage. In other cases, cohabitation,
utation, &c. are equally sufficient since the marriage act as before.
But an action for criminal conversation has a mixture of penal pros-
rs statement condensed and opinion of Duller, J., omitted.
See. 2) RECOGNIZED EXCEPTIONS 010
ecution ; for which reason, and because it might be turned to bad pur-
poses by persons giving the name and character of wife to women to
whom they are not married, it struck me, in the case of Morris v.
Miller, that, in such an action, a marriage in fact must be proved. 1
say, a marriage in fact, because marriages arc not always registered.
There are marriages among particular sorts of dissenters, where the
proof by a register would be impossible, and Dennison, Justice, in a
case of that kind which came before him, admitted other proof of an
actual marriage. But, as to the proof of identity, whatever is suffi-
cient to satisfy a jury, is good evidence. If neither the minister, nor
the clerk, nor any of the subscribing witnesses, were acquainted with
the married couple, in such a case, none of them might be able to
prove the identity. Eut it may be proved in a thousand other ways.
Suppose the bellringers were called, and proved that they rung the
bells, and came immediately after the marriage, and were paid by the
parties; suppose the hand-writing of the parties were proved; sup-
pose persons called who were present at the wedding dinner, &c, &c.
Rule absolute. •
SALTE et al. v. THOMAS.
(Court of Common Pleas, 1S02. 3 Bos. & P. 1SS.)
This was an action by the Plaintiffs, as assignees, upon two bills
of exchange drawn by the bankrupt, and accepted by the Defendant.
The cause was tried before Chambre, J., at the Guildhall Sittings in
this Term, when the Plaintiffs, in order to prove that the bankrupt
had committed an act of bankruptcy by lying two months in prison
for debt, produced the books of the Fleet and King's Bench prisons
to establish that fact. These books contained entries of the dates of
the commitments and discharges of all the prisoners, together with
particulars of the causes of each commitment extracted from the orig-
inal warrants. From these books it appeared, that the bankrupt had
been committed to the Fleet for debt, and had been removed from
thence to the King's Bench prison, charged as well with the action in
the Common Pleas as with several other actions in the King's Bench,
and that he had altogether lain in prison above two months. On the
part of the Defendant, it was objected, that though the prison-books
were admissible in evidence to prove the period of the commitment
and discharge, yet they were not admissible to prove the cause of the
commitment, but that the original warrants should have been pro-
duced. The learned Judge admitted the evidence, reserving the point,
and a verdict was found for the Plaintiffs.
The opinion of the Court was now delivered by
Lord Alvanley, C. J. The question in this case is, Whether the
evidence produced was sufficient to prove a fact necessary to consti-
620 HEARSAY (Ch. 3
tute the act of bankruptcy, viz. that the bankrupt had lain two months
in prison on civil process for debt. For this purpose the prison books
were produced, from which it appeared that the bankrupt had lain
the necessary time in prison; but it was objected, that though the
books were evidence of the time of the bankrupt's imprisonment, they
were not evidence of the cause of the commitment, and that they were
not equivalent to the committitur itself, which was admitted to be in
existence. To establish the sufficiency of the evidence, the case of The
King v. Aickles [Leach, C. C. 435] was cited, by which it appeared
that in a criminal case, where it was material to prove the particular
time of a prisoner's discharge, the book of Newgate was held to be
sufficient for that purpose. That was a book kept by a public officer
for the purpose of entering the transactions of the prison, the names
of the prisoners, and the times of their discharge, which entries were
sometimes made from the information of the turnkeys, and some-
times from their indorsements on the warrants. The book was a
complete history of the transactions of the prison, and as such it was
held to be evidence of the day on which the prisoner was discharged.
But the material distinction between that case and the present is, that
there was no document of the fact which was proved by the book of
Newgate but the book itself, and no other evidence could have been
resorted to, except the parol testimony of the turnkey who might hap-
pen to be in the prison at the time of the prisoner's discharge. But in
the present case, the committitur from which the entry was inserted
in the book is in existence, and the question is, Whether that be not
better evidence than the book itself? I am of opinion, and my Broth-
ers concur with me in thinking, that it was better evidence, and that
the books therefore ought not to have been admitted. It has been
said, that these were in the nature of public books ; but it was not
contended, that they were that sort of public document, a copy of which
might be given in evidence, like a parish register made under public
authority. The two documents do not, therefore, appear to me of a
similar nature; for the gaoler is not required by law to keep these
prison books, but they are only kept for his own information and se-
curity. We do not, therefore, think this case governed by the case
of The King v. Aickles ; but we are of opinion, that the committitur
ought to have been produced to establish the cause of the commitment,
and consequently that there must be a new trial.
Rule absolute. 78
73 Mr. Justice Peekham, In White v. United States, 164 U. S. 100, 17 Pup.
Ct. 38. it L. Ed. 366 (1896): "We think no error was committed by the trial
oourl in thus ruling, it was not necessary that a statute of Alabama should
provide for the keeping Of BUCh a book. A jailor of a county jail is a public
Officer, and the book kept by him was one kept by hi in in bis capacity as
sucb officer and because in- was required so to do. Whether such duty was
enjoined upon him by statute or by his superior officer in the performance o
bis official duty, is not material. So long as bo was discharging bis public
and official duty in keeping the book, it was sufficient. The nature of the
Sec. 2) RECOGNIZED EXCEPTIONS 621
WALDRON et al. v. COOMBE.
(Court of Common Pleas, 1810. 3 Taunt. 162».)
This was an action brought to recover the loss sustained by the
plaintiff, by the deterioration of some kerseymeres on board the Earl
Percy, insured by a policy subscribed by the defendant, "at and from
London to Rio Janeiro." The plaintiff averred a loss by perils of the
sea. The defendant pleaded non assumpsit, and paid into court £50
per cent. Upon the trial, at Guildhall, at the sittings in this term, before
Mansfield, C. J., the plaintiff proved, that, if the goods had not been
damaged, the market would have afforded a profit of £15 per cent. ;
that the goods were damaged, apparently by seawater, to a consider-
able degree ; the witness would not have given £30 per cent, for them ;
but the plaintiff gave no other evidence of the manner in which the
damage was occasioned. To prove the amount of the loss, a witness
produced a certificate from the British vice-consul there, of the amount
for which the goods were there sold, being £9 15s. per cent, only, of the
sum insured; and the same witness swore, that, by the law of the
Brazils, and other parts of South America, the vice-consul is constituted
general agent for all absent owners of goods, and that the same law
authorizes and compels the vice-consul to make sale of all the dam-
aged goods of all absentees, with the assistance of two British mer-
chants as assessors. Mansfield, C. J., admitted this evidence, although
Best, Serjt., for the defendant, objected to it, but reserving to him
liberty to move. 74
Mansfield, C. J. I thought at the trial it was very difficult to
bring this within any head of evidence. It was somewhat analogous
to the proceedings of courts and other public functionaries: but I
know no instances of such as this being received. I dare say it would
be evidence in any other country. It came nearest to the case of judg-
ments in foreign courts. But we receive judgments under the seals of
the courts. The vice-consul is no judicial officer. He acts under a
wise regulation to prevent the improper disposition of damaged goods.
They are put into warehouses appropriated to them by government.
The vice-consul must preside at the auction. There is no rule in the
English law which makes his certificate evidence. He has been sup-
posed to be an agent, and he is, to some purposes. So is an auctioneer
in this country; nevertheless his certificate is not evidence in a court
of justice, but what was done at the auction must be proved. The
business of the vice-consul is to see a fair sale. It is going much
further to say that his certificate shall bind the parties. Any body
office would seem to require it. In that case the entries are competent evi-
dence. 1 Greenl. Ev. §§ 483, 484."
And so in the case of the United States weather record, Evanston v. Gunn,
99 U. S. 660, 25 L. Ed. 306 (1878).
74 Statement condensed.
022 HEARSAY (Ch. 3
present might have proved the facts. The chirograph of fines here
proves itself, but the endorsement of the proclamation of the fine
must be proved by a compared copy of the record.
Rule absolute to reduce the damages to £70 per cent. 76
WIHEN v. LAW.
(Court of King's Bench, 1S21. 3 Starkie, 63.)
The question was as to the age of the defendant. On the part of
the defendant, to prove his infancy at a particular time, the register
of his christening was produced, from which it appeared that he was
christened in the year 1807 ; but the entry also stated that he was
born in the year 1799.
Bayley, J., was of opinion, that the entry relating to the time of his
birth was not evidence of the fact ; it did not appear upon whose
information the entry had been made, and the clergyman who made
the entry had no authority to make inquiry concerning the time of
birth, or to make any entry concerning it in the register.
The jury found for the plaintiff; and in the ensuing term, Marry-
att moved for a new trial, contending that at all events, the entry was
evidence to confirm the statement of the mother, who had been ex-
amined as a witness for the defendant at the trial.
But the Court were of opinion, that the entry was not evidence to
prove the age of the party ; it was nothing more than something told
to the clergyman at the time of the christening, concerning which he
had not power by law to make an entry in the register. He had neither
the authority nor the means of making an entry. If it had appeared
that the entry had been made by the direction of the mother, it might,
perhaps, if required, have been read in evidence, for the purpose of
confirming her testimony; but even then it would have amounted to
nothing more than a mere declaration by her as to the age of her son,
made at a time when there was no motive on her part to misrepresent
his age.
Rule refused. 76
'•■■ Official certificates are provided for by statute in quite a number of
cases; e. g., certificates of the acknowledgment of deeds, certificates of the
registry of deeds, cert ificates of the performance of the marriage ceremony,
and of various other official acts. — Ed.
\ir. Justice Paxson, In Sitter v. Gehr, 105 Pa. 577, 51 Am. Rep. 207
(1884): "The learned Judge held that the hook in question was a church reg-
istry for marriages, deaths, and burials, thai it was intended to he kept, and
possibly was kept, according to (lie requirements of the Act of 1S00 ; that it
would be evidence to show the deaths of Mary Eva Zimmerman and Hannah
Bast, t nit that for the other purposes offered it was Incompetent. Without
discussing the character of the book, we are of opinion it was properly re-
ted, it was not alleged that the time- of the death of these ladies was ma-
terial to the Issue, on the contrary, the manifest object of the offer was to
Sec. 2) RECOGNIZED EXCEPTIONS 623
RICHARDSON v. MELLISH.
(Court of Common Pleas, 1S24. 2 Bing. 229.)
This was an action brought to recover damages for the breach of
an agreement. The plaintiff was formerly captain of the ship Minerva,
Which had been chartered by the East India Company for six voyages
to India. When the vessel had performed two of these voyages, the de-
fendant purchased twelve-sixteenths of her, and having a nephew
(Captain Mills) whom he wished to serve, he proposed that the plain-
tiff should give up the command of the Minerva to Captain Mills. In
order to provide the plaintiff a compensation for this sacrifice, an
agreement was entered into, by which it was stipulated, that the plain-
tiff should resign the command of the Minerva to Captain Mills, and
should receive in exchange the command of the Marquess of Ely,
another vessel belonging to the defendant, and then chartered for one
voyage by the East India Company.
The proof given at the trial of the value of one of these voyages con-
sisted in the testimony of several captains, who described it as being
worth from £4000 to £ 8000, and in the production of a book containing
a list of passengers, made by the captain, and deposited in the India-
house, pursuant to the act of 53 G. 3, passed for the better regulation
of passengers by India vessels. This book was objected to at the
trial, but was admitted in evidence by the learned judge. 77
Best, C. J. * * * I come now to the next question, that is, as to
the admissibility of evidence. For the purpose of proving the damage,
the plaintiff put in a list returned by a captain under the authority of
the 53 G. 3, c. 155, s. 15, 16. It is contended, that that paper was not
evidence against third parties. I am decidedly of opinion that there is
no foundation for that objection. This is a public paper made out by
a public officer, under a sanction and responsibility which impel him to
make that paper out accurately ; and that being the case, it is admissible
in evidence on the principle on which the sailing instructions, the list of
convoy, and the list of the crew of a ship are admissible. But it may be
said, Ay, but those are papers which come from government officers:
I go on, — but the books of the bank of England have been made evi-
dence ; all those are evidence that are considered as public papers, made
prove that Hannah Bast was the daughter of Conrad Gehr and Anna Maria.
his wife, and to show when and where she was born. This burial list was
competent to show the death and burial of these ladies, but what the pastor
put down in the book as to their parentage, and the time and place of their
birth, was incompetent, for the plain reason that it was no part of his duty
to make such entries. Such registers are not, in general, evidence of any
fact not required to be recorded in them, and which did not occur in the
presence of the registering officer. Phillips on Evidence, vol. II, § 2S0."
So the registry is not admissible to prove the place of birth, though if the
child were very young an inference might be warranted that it was born in
that parish. Rex v. North Petherton, 5 B. & C. 50S (1S26).
" Statement condensed and part of opinion omitted.
02-4 HEARSAY (Ch. 3
out by persons who have a duty to the public to perform, and whose
duty it is to make them out accurately. On account of that duty and
responsibility, credit is given to them. These papers are of as high
authority as any of those I have referred to ; higher than those of the
books of the bank of England, the books at Lloyd's, or the lists of
convoy, which have been received as evidence. These are papers
which the captain is ordered by the fifteenth section of the stat-
ute, to which we have been referred, to make out upon oath, which
oath, an officer of the customs is authorized to administer : for what
purpose? for the purpose of informing the East India Company (who.
though subjects m England, are great sovereigns in India), what
kind of persons, and with what sort of arms these persons are go-
ing to settlements, the administration of the affairs of which is
committed to them. If these are not public papers made with a view
to great principles of public policy, I am at a loss to know what are
public papers. If so, credit must be given to all papers so made : con-
sequently these papers, I think, were properly received in evi-
dence. * * *
Rule discharged.
BROWNING v. FLANAGIN.
(Court of Errors and Appeals of New Jersey, 1849. 22 N. J. Law, 5G7.)
This was an action of debt for an escape, brought by Flanagin
against Browning, to recover the debt, interest, and costs endorsed
upon a capias ad satisfaciendum alleged to have been issued and de-
livered to the defendant below for execution, while sheriff of the
county of Gloucester.
It was proved on the trial, by the former clerk of the county, that
there is now, and has been for more than one hundred years past, kept
in the office of the clerk of Gloucester, a book of records, called the
sealing docket, in which all writs returned by the sheriff were entered,
together with the return of the sheriff. It was proved, by the attor-
ney of the plaintiff below, that he issued a pluries ca. sa. in the suit
of Flanagin v. Champion, and placed it in the hands of Browning, the
defendant below, who was then sheriff of Gloucester. This writ
was shown to be lost from the files of the court. And an entry in the
sealing docket of the writ and return was offered in evidence by the
plaintiff below, and admitted by the court, to the admission where-
of the defendant below excepted. The entry was as follows : "John
Flanagin v. Federal Champion, second pluries ca. sa., in debt, Jeffries
att'v— Wot found.' J. P. Browning, Sheriff." 78
Cakim. J. At the trial the judgment was proved, the issuing
of the writ by the attorney, &c. The writ, after search, not being
t« Statement condensed and part of opinion omitted.
Sec. 2) RECOOXIZED EXCEPTIONS 625
found on the files, and sufficient ground, as supposed, having been
shown to let in secondary evidence, the plaintiff below offered to prove
its contents by an entry in a book, called "a sealing docket," kept in
the clerk's office of the county of Gloucester. He proved that a book
of this character had been kept in that office from before the revolu-
tion, one hundred years, or more. That a memorandum of all writs
issued and returned were entered by the clerk in this book. If is-
sued by the clerk, the note, being a copy of the endorsement, with
the number of the writ and the date when issued, was made before
delivery to the sheriff; and his return, when made, was also copied
into the book. Writs not issued by the clerk, and not in his hands till
returned, were entered at the end of the other writs in the proper
term, but without date. The entry in question was in the handwrit-
ing of the clerk, without date, and it was alleged, by the counsel of
the defendant below, out of the usual order of making such entries.
The then cierk, by whom the entry was made, was not produced to
prove that it had been made by him in the regular course of duty in
his office, or to prove any other circumstance in connection with it.
He had, long previous to the trial, left the state, and was not within
reach of the process of the court. The first exception arises from
an objection, on the part of the defendant below, to the reading of
this entry, as any proof of the contents of the writ or for any other
purpose.
If a record, or other document in the nature of a record, is lost,
after a proper foundation is laid, its contents may be proved, like any
other document, by proper secondary evidence. No objection seems
to arise from the fact, that a mere abstract of the writ, being a copy
of the endorsement, was offered as evidence of the contents of the
writ, though undoubtedly a complete copy would have been more
satisfactory. In a case where an assignment of tolls had been execut-
ed, by way of mortgage, by a turnpike company, in an action by the
personal representative of the mortgagee, after his death, it was
held that after sufficient proof of the loss of the mortgage, entries
in a book of the company, endorsed "Mortgage book," containing
an abstract of the names of the creditors, the amounts of their se-
curities, and the interest due upon them, was good secondary evidence
of such security. Pardoe v. Price, 13 M. & W. 267.
My first impressions as to this book, were to regard it, not in the
light of an official register required by law, but as a mere memoran-
dum of the writs issued from, and returned into the office. If kept by
the clerk merely for his own convenience and security, and not be-
cause required by statute, or necessary, in any strict sense, from the
nature of the office, it might, under some circumstances, be used in
evidence, but upon a different principle than as offered in the present
instance. It would have been admissible only as an entry, made at
Hint.Ev. — 10
626 HEARSAY (Ch. 3
the time, according to the established practice of the office, by one
having competent knowledge of, and no interest to mistake the mat-
ter recorded. Such entries have been frequently held admissible, when
made at the time of the transaction by any one in the usual and reg-
ular course of professional or other duty, but only when aided by
collateral proof. If the person by whom made be alive, even if be-
vond the jurisdiction of the court, he must be found, and his testi-
mony produced, either personally or by deposition. It is only in case
of his death that such entry can be read on proof of the handwrit-
ing. 1 Greenl. Ev. § 115; 1 Stark. Ev. 394, 396, &c. ; Poole v. Dicas,
1 Bing. N. C. 649; Welsh v. Barrett, 15 Mass. 380; Nicholls v. Webb.
8 Wheat. 326, 5 L. Ed. 628; Wilbur v. Selden, 6 Cow. (N. Y.) 162;
Cooper v. Marsden, 1 Esp. 1.
In Massachusetts, insanity has been held equivalent to death. Un-
ion Bank v. Knapp, 3 Pick. 96, 106, 15 Am. Dec. 181. Looking at
the book in this light, I felt very unwilling to relax the rule, which is
settled upon sound and safe principles.
But subsequent examination has placed the book in a very differ-
ent light. An entry of every action commenced in court, and of the
issuing of every writ, is supposed to be made; and so of the return
by ministerial officers, of duty performed under each writ. Our own
statutes give the clerk fees for making these entries, and I suppose
they are in fact made in every county of the state with more or less
accuracy, according to the intelligence and diligence of the officer.
The original practice still followed in some counties, was to make such
entries in the minutes of the court, as part of its proceedings, and
ordinarily at the close of each term to which the writs were respec-
tively returned. In other counties, as a matter of convenience, the
entries, in regard to the issuing and return of writs, have been trans-
ferred to a separate book, styled, as in the present instance, a "seal-
ing docket," which thus became a supplemental book of minutes, in
which so much of the proceedings of the court was recorded. In this
light, it is rightly to be considered as a book of minutes, in which a
portion of the proceedings of the court is recorded; and, so far as
regards such entries, strictly an official register. As such, the book
from which the entry in question was offered on the trial, was proper-
ly admitted as evidence of itself, without the necessity of producing the
officer who made the entries, or sustaining its authenticity by his oath.
1 Greenl. Ev. §§ 483, 484 ; 1 Stark. Ev. 228, 243, etc. (Phil. Ed. 1842).
The alleged irregularity in regard to the entry, was a matter for the
jury below, and the objection, if entitled to any weight, was one ad-
dressed to the credit, and not to the competency of the book. * * *
Affirmed.
Sec. 2) RECOGNIZED EXCEPTIONS C27
HEGLER v. FAULKNER.
(Supreme Court of the United States, 1894. 153 U. S. 109, 14 Sup. Ct. 779,
38 L. Ed. 653.)
The plaintiff Hegler brought ejectment against Faulkner and others
to recover a tract of land in the state of Nebraska. Plaintiff claimed
title under a deed from an Indian named George Washington; de-
fendants claimed under a later deed from the same grantor. The
verdict and judgment were for the defendant. 79
Mr. Justice Shiras delivered the opinion of the court.
The plaintiff contended, in the court below, that the Indian George
Washington was of full age on April 16, 1859,— the date of the con-
veyance to Nuckolls, — or, at all events, so represented himself to be,
and that Nuckolls relied upon such representations, and purchased
and paid for said land accordingly. These questions of fact were sub-
mitted by the court to the jury, and found by them in favor of the de-
fendants.
The errors assigned are to the action of the court in rejecting evi-
dence offered by the plaintiff, and in refusing instructions asked for
by him. The first offer was that of an exemplification from the rec-
ords of the Indian department of instructions given to one Joseph
L. Sharp, dated May 14, 1856, under which Sharp acted as an agent
for the United States in ascertaining the number and names of the
half-breeds entitled to participate in the division of the lands granted
by the treaty of Prairie du Chien. Among such instructions the
agent was directed to prepare "a report in full, to embrace a list con-
taining names of all applicants, arranged by tribes and families and
single persons, showing names, age, sex, relationship to the tribe, place
of residence, who are orphans or wards." This was followed by an
offer of a certified copy of a census or list of half-breeds entitled to
lands, bearing the heading "Office of Indian Affairs," dated February
4, 1858, containing the name, sex, age, degree of blood, and tribe of
certain Indians. Upon this list was the name of George Washing-
ton, and opposite the name appeared the figures "20," in the column
headed "Age." The purpose of these offers was stated to be to show
that George Washington was 20 years of age at that date (February
4, 1858), and that he was therefore of full age when, on April 16,
1859, he conveyed the land allotted to him to Houston Nuckolls. The
court below regarded the evidence offered as inadmissible for that
purpose, and the rejection of the offers is the subject of the first and
second assignments of error.
As leading up to the controlling question, namely, the age of the half-
breed George Washington, the offer of the instructions under which
the agent acted in procuring information for his report would seem
79 Statement condensed and part of opinion omitted.
?
628 HEARSAY (Cll. 3
to be unobjectionable, but its rejection would not constitute reversible
error unless the offer that followed was admissible. That was the
offer to put in evidence a census or list filed in the office of Indian
affairs, containing the names and ages of half-breeds who, upon tes-
timony presented to that office, were regarded as entitled to participate
in the allotments or assignments of the lands awarded by the treaty.
If the latter offer was not a proper one, then the rejection of the pre-
ceding offer was immaterial.
Was, then, this list filed in the Indian department, and which, or a
copy of which, had been sent to William M. Stark, special agent to
assign or allot these lands, admissible in evidence in a legal contro-
versy, to prove the age of one of said Indians?
It is contended on behalf of the plaintiff in error that this list is in the
nature of a finding or judgment of the executive department of the
government in matters committed specially to the president by con-
gress; that the allotment of these lands to the half-breeds was express-
ly devolved upon the president by act of congress (10 Stat. 332), in
order to carry out the treaty ; that this act of congress was one mak-
ing appropriations for the Indian department, and for fulfilling treaty
stipulations ; that the department, under the directions of the president,
made rules and regulations to enforce this provision of law, and did
enforce it.
It is, indeed, true that the president speaks and acts through the
heads of the several departments in relation to subjects that pertain
to their respective duties, and that the allotment of these lands by the
Indian department must be considered as made by the president in
pursuance of the terms of the act of congress and of the treaty. And
it may be admitted that the decision of the special Indian agent, in
identifying the Indian half-breeds entitled to participate, and in al-
lotting the portion of each, would, in the absence of fraud, be con-
clusive. Wilcox v. Jackson, 13 Pet. 498-511, 10 L. Ed. 264.
Conclusiveness is a characteristic of the judgment of every tribunal
acting judicially, while acting within the sphere of its jurisdiction,
where no appellate tribunal is created. But such conclusiveness is re-
stricted to those questions which are directly submitted for decision.
In the case in hand, doubtless the identity of the half-breed George
Washington, and his right to receive the land in question as his share
of the lands appropriated by the treaty, were finally found. But nei-
ther the treaty, the act of congress, nor the instructions of the depart-
ment contemplated any special inquiry into the ages of the Indians.
It is true that in the letter of instructions the agent was directed to
report as well the age as the sex and tribal relations of the claimants.
But this was merely to enable the agent, when he came to allot the
lands, to identify the persons entitled to participate. When the allot-
ment was completed, and was followed, first by a certificate, and final-
ly by a patent, the purposes of the inquiry were fulfilled, and the list
1 to aid the government functionaries in the task of allotting the
Sec. 2) RECOGNIZED EXCEPTIONS C\20
lands cannot be regarded as a record to be resorted to afterwards, in
disputes between other parties, to prove the age of the Indians. No
provision was made, in either the act of congress or the rules and
regulations of the Indian department, to preserve the list as a muniment
of title, much less as a public record admissible to prove merely inci-
dental recitals based on hearsay. Such a list does not come within the
rule which permits, for some purposes, the use of "official registers or
records kept by persons in public office to write down particular trans-
actions occurring in the course of their public duties or under their par-
ticular observation." 1 Greenl. Ev. § 483. "It must be remembered
that official registers are not, in general, evidence of any fact not re-
quired to be recorded in them, and which did not occur in the presence
of the registering officer. Thus, a parish register is evidence only of
the time of a marriage and of its celebration de facto, for these are
the only facts necessarily within the knowledge of the party making
the entry. So a register of baptism, taken by itself, is evidence only
of that fact. Neither is the mention of the child's age in the register
of christenings proof of the day of its birth, to support a plea of in-
fancy." Id. § 493.
In Insurance Co. v. Tisdale, 91 U. S. 238, 23 L. Ed. 314, 80 where the
right of action depended on the death of a third person, it was held
that letters of administration upon the estate of such person, granted
by the proper probate court in a proceeding to which the defendant
was a stranger, afforded no legal evidence of such death ; and it was
said : "The only ground for the admission of the letters of adminis-
tration is that granting them is a judicial act; but a judgment is not
evidence of any matter to be inferred by argument therefrom, or which
comes collaterally in question, or is incidentally cognizable," — citing
the Duchess of Kingston's Case, 11 State Tr. 261, and many others.
In Insurance Co. v. Schwenk, 94 U. S. 593, 24 L. Ed. 294, it was
held that an entry in the minute book of a lodge of Odd Fellows, of
which the deceased was a member, made prior to the issue of a policy,
and showing his age as recorded by the secretary of the lodge in the
usual manner of keeping its records, was not admissible as evidence of
such age.
We do not deem it necessary to discuss this question at greater length.
Our conclusion is that the court below did not err in excluding the
list offered. It was not an official record, intended as a mode of pre-
serving the recollection of facts, nor was it based upon the personal
knowledge of the party making the entry. It was mere hear-
say. * * *
Affirmed. 81
80 See the opinion for an extensive review of the authorities on the point
involved.
si See same result in Stuiia v. Freccia, L. R. 5 App. Cas. 623 (1880), hold-
ing that a report on an application for an appointment to office was not ad-
missible to prove the age and place of birth of the applicant In that case
630 HEARSAY (Ch. 3
MURRAY et al. v. SUPREME LODGE, NEW ENGLAND ORDER
OF PROTECTION.
(Supreme Court of Errors of Connecticut, 1902. 74 Conn. 715, 52 Atl. 722.)
Action to recover the amount of a benefit-fund certificate, brought to
the Superior Court in New Haven County and tried to the jury before
Roraback, J.; verdict and judgment for the plaintiff for $1,144 dam-
ages, and appealed by the defendant for alleged errors in the rulings
and charge of the court.
Torrance, C. J.* 2 The certificate sued upon was issued by the
defendant to Ellen T. Murray in May, 1898. In it the defendant
agreed, among other things, that Ellen T. Murray should be entitled
"to participate in the relief and benefit fund of the order to the amount
of one thousand dollars," which sum at her death the defendant in said
certificate agreed to pay to the plaintiffs, daughters of Ellen T. Murray.
This agreement to pay was made upon certain express conditions,
one of which was that statements made by Ellen T. Murray in her ap-
plication for membership were true. On the trial it was conceded that
no person over 50 years of age could lawfully become a benefit member
of the defendant society ; and the main defense was that Ellen T. Mur-
ray, when she joined the defendant society, in May, 1898, was over
50 years old, and that she falsely stated the date of her birth in her ap-
plication as of March 4, 1849, when she knew that it was of a much
earlier date. The parties were at issue upon this question as to the
age of said Ellen T. Murray, and as to whether her statement of the
date of her birth in her application for membership was true.
In proof of the age of Ellen T. Murray at the time of her application
for membership in the defendant society, the defendant offered in evi-
dence certified copies of the following documents from the records
of the registrar of vital statistics of New Haven: (1) The application
made by Patrick Murray, the prospective husband of said Ellen, in
July, 1865, to the registrar, for a marriage license between himself and
I'.llen: (2) the license issued upon said application; (3) the certificate
of the celebrant of the marriage of said parties, indorsed on said certif-
icate of license. In the application for the license the age of Ellen
was stated to be 22 years. In the other writings her age was not stat-
ed. The plaintiffs objected to the admission of the application for li-
cense "as irrelevant, immaterial, incompetent, and hearsay," and the
court excluded it, but ruled that the other writings were admissible.
The defendant also, for the purpose of proving the age of Ellen when
Lord Blackburn app<':irs to have laid undue stress on the fact thai the report
was not Intended tor the use <>r tin- general public.
Thai the United States census reporl Is admissible to prove age, see Prlddy
v. Boyce, 201 Mo. 309, '•>'•> B. W. L055, '•> L. B. A. (N. S.) 718, ii'.t Am. St. Rep.
762, '.» Ann. Cas. *7 1 (1906). For ;i contrary view as to a local census, see
Campbell v. Everhart, 139 X. 0. 503, 52 S. B. 201 (1905).
*^ Pari <<\ opinion omll ted.
Sec. 2) RECOGNIZED EXCEPTIONS 631
she became a member of the society, offered in evidence the record of
said marriage in the books of the registrar, as made up from the docu-
ments above mentioned, in which record the age of Ellen was stated
to be 22 years. To this the plaintiffs objected, "as it appeared from the
cross-examination of the registrar that the record contained, at most
nothing more than" what was contained in the aforesaid documents,
and "that so far as the originals were admissible the same were al-
ready in evidence, and that so far as the originals were not admissible"
the record of them would not be admissible. The court sustained the
objection. For a like purpose the defendant offered in evidence duly
certified copies from the registrar's records of returns of births made
to him of children born to said Ellen, by the physicians' who attended
her, as required by law, in which her age at the time of such birth- was
stated. This evidence, also, the court, on objection of the plaintiffs,
excluded. Whether these several rulings were correct or not is the
principal question in the case.
From a very early period our law has provided for the record of
births, deaths, and marriages in some way by some public official. The
first act of this kind seems to have been passed in 1664 (Revision 1808,
p. 652, note 1), and ever since that time our statute book has contained
provisions, more or less specific, looking to the making and preservation
of such records. During the period,covered by the documents offered
in evidence in the present case, the duty to make and preserve such
records was imposed upon a public official called a "registrar," elected
by the municipality, and sworn to faithfully perform the duties of his
office. One of his duties was to "ascertain, as accurately as he can, by
actual inquiry, and in the manner prescribed by law, all the births, mar-
riages and deaths occurring" in the municipality, and to make a record
of the same, "in such form and with such particulars relating to such
births, marriages and deaths, as shall be prescribed by law." Among
other things, his record of births was required to state the age of the
child's parents ; and his record of marriage was, among other things,
required to state the age of each of the parties to such marriage. It
was made the duty of the physician attending a woman in childbirth
to furnish to the registrar a certificate stating among other things, the
age of the mother of the child at the time of such birth; and it was
made the duty of the party applying for a marriage license to give
the registrar information respecting the age of each of the parties. See
Revision 1866, tit. 13, c. 1, § 1. Under the provisions of section 1089
of the General Statutes of 1888, these records of the registrar can be
proved by a copy thereof certified by him. It thus appears that the
age of Ellen T. Murray at the time of her marriage and at the time
of the birth of her children was a fact which the law made it the duty
of the registrar to ascertain, and to make and keep a record of the
fact so ascertained. The record thus made was a public record, made
by a public official, of ?. fact which the law required him to find and
record, and the record was open to public inspection. The record
532 HEARSAY (Cll.
thus made of this fact the defendant offered in evidence, both in the
shape of the record itself, and of a duly certified copy thereof ; and
the court excluded it on the ground, substantially, that it was hearsay
evidence.
Now, unquestionably, the evidence offered and excluded was hear-
say evidence, for it was a statement made extrajudicially by one not un-
der oath, and not subject to cross-examination, and it was offered in
proof of one of the facts stated in it, to wit, the age of Mrs. Murray.
Statements so made are generally obnoxious to the hearsay rule, but to
that rule there are many exceptions as well established as the rule
itself, and among them is one admitting statements made by public
officials in a public record made for public use pursuant to law. The
books of the registrar, kept according to law, constitute a public official
register ; and the statements contained therein, when relevant, are ad-
missible in evidence as a clear exception to the hearsay rule. The nec-
essity for the existence of such an exception is found "in the practically
unendurable inconvenience of summoning public officers from their
posts on the innumerable occasions when their official doings or rec-
ords are to be proved in litigation," and the general trustworthiness
of such evidence is found in the circumstances under which the state-
ments are made. 1 Greenl. Ev. (16th Ed.) §§ 162m, 484-4S6; Stork
v. Freccia, 5 App. Cas. 623 ; Evanston v. Gunn, 99 U. S. 660, 25 L. Ed.
306; Cushing v. Railroad Co., 143 Mass. 78, 9 N. E. 22; Enfield v.
Ellington, 67 Conn. 459, 462, 34 Atl. 818; Hennessy v. Insurance Co.,
74 Conn. 699, 52 Atl. 490. The evidence offered and excluded in the
case at bar comes clearly within this exception to the hearsay rule, and
was admissible in proof of the age of Mrs. Murray at the time of
her marriage, and at the dates when her children were born. 1 Greenl.
Ev. (16th Ed.) § 493. It was not, of course, conclusive, nor was it
offered as such ; but it was admissible for what it was worth, and the
court erred in excluding it. * * *
New trial granted.
GRAGG v. LEARNED.
(Supreme Judicial Court of Massachusetts, 1872. 109 Mass. 107.)
Writ of entry to recover land in Brighton. At the trial in this court,
before Wells, J., the tenant offered in evidence an office copy of an
instrument purporting to be a deed of the demanded premises from
the demandant to one Miller; and it was proved that the original
never was in the tenant's possession. This document, which, if duly
delivered, was a valid deed, ended thus:
"In witness whereof, I have hereunto put my hand and seal this
day, March the twenty-fiflh, in the year of our Lord one thousand
eight hundred and forty-seven. Samuel Gragg. [Seal.J
"In presence of !•'. Milliard."
Sec. 2) RECOGNIZED EXCEPTIONS 633
It purported to be duly acknowledged, and bore a certificate that
it had been recorded. The demandant objected to the admission of
the instrument without further evidence of its delivery than what ap-
peared upon its face. But the judge admitted it, and instructed the
jury that they would be authorized to infer a delivery from the facts
in regard to the instrument which thus appeared on the record. The
jury returned a verdict for the tenant and the demandant alleged ex-
ceptions.
Gray, J. By the law of this Commonwealth, a copy from the regis-
try of a deed not made to either party to the action, or presumed to
be in the custody of either, is sufficient evidence of the execution and
contents of the conveyance, without calling the subscribing witnesses
or offering any other proof. Eaton v. Campbell, 7 Pick. 10; Sam-
uels v. Borrowscale, 104 Mass. 207, 209 ; Stockwell v. Silloway, 105
Mass. 517. The dictum of Chief Justice Shaw in Powers v. Russell,
13 Pick. 69, 75, (upon which the demandant relies,) that this rule is
founded on the "presumption of law, arising from the common at-
testation of the witnesses, in their certificate, that it was signed, sealed
and delivered," is at variance with the statement of the reason of the
rule by Chief Justice Shaw himself in Stetson v. Sullivan, 2 Cush.
494, 498, and by other judges before and since, which is, that our stat-
utes allow no deed to be recorded until it has been acknowledged by
the grantor, or proved by subscribing witnesses before a magistrate.
Hathaway v. Spooner, 9 Pick. 23, 26; Ward v. Fuller, 15 Pick. 185,
188 ; Thacher v. Phinney, 7 Allen, 146, 149. It was decided in Dole
v. Thurlow, 12 Mete. 157, in which also the opinion was delivered by
Chief Justice Shaw, that it was not essential to the validity of a deed,
that it should have any subscribing witnesses ; and in Thacher v. Phin-
ney, already cited, that a registry copy, offered by the demandant, of
a deed to the tenant's grantor, was sufficient evidence of the convey-
ance thereby made although it disclosed the fact that the deed had
no subscribing witnesses. In none of the cases in which such a copy
has been admitted in evidence has it been suggested that any further
proof of delivery was necessary, when it did not appear that the
deed has remained in the possession of the register or had been de-
livered back to the grantor. It follows that in the present case the
copy from the registry was rightly admitted as prima facie evidence
of the delivery as well as of the execution of the deed.
Exceptions overruled. 83
• s3 See the statutes of the several states, providing for the acknowledgment
and registration of deeds.
634 HEARSAY (Ch. 3
PEOPLE v. CHARLIE LEE.
(Supreme Court of California, 1900. 128 Cal. 330, 00 Pac. S54.)
Britt, C. The defendant, a Chinese, was accused in this case of
the crime of forgery, committed by uttering, etc., with fraudulent in-
tent, a paper writing which purported to be a check for a sum of mon-
ey, dated February 3, 1898, drawn on a certain bank of San Francisco,
bearing the signature "J. P. Collin," payable to the order of defend-
ant, and by him indorsed, which check, it is charged, was fictitious;
no such person as J. P. Collin being in existence, as defendant well
knew. At the trial, which resulted in the conviction of defendant,
there was evidence that he passed the check to the complaining wit-
ness, and obtained from the latter a payment of money on account
thereof at the city of Oakland, in Alameda county, on February 9,
1898; that defendant was arrested for the offense on the same day,
and thereupon claimed that he had received the check two days pre-
viously from one Hing Lee, who lived (defendant said) in Santa Bar-
bara county, and was there in the employ of a person named Collins.
The district attorney then offered in evidence a subpoena issued out of
the police court of the city of Oakland on February 11, 1898, directed
to "J. P. Collins, Santa Barbara," requiring his attendance as a wit-
ness before said police court on February 17, 1898, in a proceeding
which we assume to have been the preliminary examination of the de-
fendant on the present charge. Together with the subpoena the dis-
trict attorney offered also, the return of the sheriff indorsed thereon,
dated February 15, 1898, setting forth that he received such subpoena
on February 14, 1898, and, after diligent search and inquiry, was "un-
able to find J. P. Collins in the county of Santa Barbara." Defendant
objected to the admission of this paper on various grounds, not neces-
sary to be here set out. He waived the objection, if such he had on
the ground that the subpoena was issued from the police court, and
agreed that it might be regarded as issued from the superior court,
where the trial was in progress. The court overruled the objections
made, and held, in effect, that the subpoena and return were competent
evidence to prove the nonexistence of the person whose name appeared
to be subscribed to the alleged fictitious check.
The return of the sheriff upon process is declared by statute to
be prima facie evidence of the facts in such return stated. Pol. Code,
§ 4178; St. 1897, p. 480. But this must be held to mean that the
return is prima facie evidence when the question under investigation
is of a character which renders that mode of proof appropriate. Thus,
to take some negative illustrations, in proceedings for divorce, resi-
dence of the plaintiff in the county where the action is brought is essen-
tial to th tenance of the action. Civ. Code, § 12S. On an issue
nee raised by the pleadings in such an action, we suppose no
one would claim that the sheriff's return on a subpoena for the attend-
Sec. 2) RECOGNIZED EXCEPTIONS 635
ance of the plaintiff as a witness would be competent evidence to prove
or disprove the fact of residence. In an action against a corporation,
the summons may be served on the president of the corporation, and
the sheriff serving the process must make return of it according to the
fact. Code Civ. Proc. §§ 411, 415. The sheriff's certificate that he
made service by delivering the proper copies to a specified person, de-
scribed as president of the defendant corporation, is prima facie evi-
dence, for the purpose of establishing the fact of service on the cor-
poration, that the individual named was in fact such president. But
suppose the action involved, let us say, some issue, whether the cor-
poration was bound by some act of such individual as its president;
it would hardly be contended that the return on the summons could be
competent evidence at the trial to establish his official status.
The case here is but little different in point of principle from the
cases instanced. The return of the subpoena that J. P. Collins, wanted
as a witness, could not, after diligent search, be found in Santa Barbara
county, was prima facie evidence upon an issue to which the simple
fact returned might have been relevant, — some question which directly
involves a right or liability or consequence resulting from the official
act which the return purports to describe (see Stanton v. Hodges, 6
Vt. 64, 66), — as whether the officer had performed his duty in a prop-
er manner, or whether the trial ought to be postponed because of
the absence of the witness, or whether his testimony previously taken
in the form of deposition, if such had been the fact, might be received
in evidence (People v. Reilly, 106 Cal. 648, 40 Pac. 13). But the ques-
tion whether such a person as J. P. Collin or J. P. Collins had existence
in Santa Barbara county or elsewhere at the date of the check was not
one which the sheriff was required to officially ascertain or declare.
It is illustrated only inferentially, and by very remote inference at that,
from the facts stated in the return. It is an issue in no way depend-
ent upon or connected with the discharge of the sheriff's duty in serv-
ing or attempting to serve the subpoena. It is therefore to be proved in
the ordinary way by testimony of sworn witnesses subject to cross-
examination by defendant, and not by official certificate. The admis-
sion of the subpoena and return in evidence was material error. Com-
pare People v. Plvler, 126 Cal. 379, 58 Pac. 904; Same v. Eppinger,
105 Cal. 36, 38 Pac. 538.
Defendant has made no point on the circumstance that the subpoena
was issued for "J- P- Collins," a name not identical with "J- P- Collin,"
and we have not considered whether that fact should influence the de-
cision. Some other matters are assigned for error. They are of little
importance, and will probably not occur on another trial. The judg-
ment and order denying a new trial should be reversed.
We concur: Haynes, C. ; Gray, C.
Per Curiam. For the reasons given in the foregoing opinion, the
judgment and order denying a new trial are reversed.
636 HEARSAY (Ch. 3
JETNA LIFE INS. CO. v. MILWARD.
(Court of Appeals of Kentucky, 1904. 118 Ky. 716, 82 S. W. 364, 68 L. R. A.
285, 4 Anu. Cas. 1002.)
O'Rear, J. 8 * This is an appeal from a judgment for $5,000 in
favor of the appellee (plaintiff below), as the designated beneficiary in
a policy insuring her husband, Charles S. Milward, against accidental
death. The defense, as made by the answer, consists of a denial that
the death was the result of an accident, and a claim that it was due to
suicide. The principal points of complaint presented on this appeal
are that the verdict was unauthorised by the evidence, that the petition
was insufficient, and that competent evidence on appellant's behalf was
rejected by the trial court. * * *
On the morning of the death of the insured, the coroner of Fayette
county impaneled a jury to inquire into its cause. Evidence was heard,
and the premises examined by the jury, five of whom signed and re-
turned a verdict that the body examined by them was that of Charles
S. Milward, who came to his death from a pistol shot wound through
the brain, the pistol being fired by his own hand. One of the jury
refused to join in the verdict. Appellant offered the record of the
coroner's inquest as evidence on its behalf in this trial. It was re-
jected by the trial court, of which appellant complains.
We are of opinion that the record and the finding of the coroner's
jury were irrelevant as evidence. While the coroner's inquest is a
public function, made on behalf of the state, and while a record of it
is required to be made and kept, it cannot, on any well-grounded prin-
ciple of American common law, become evidence in another inquiry
or suit as to the cause of the death investigated. The business of this
tribunal is by statute to collect promptly the facts concerning deaths
which the coroner has reason to believe were the result of crime. Like
the grand jury, it projects an ex parte investigation of supposed or
alleged crime resulting in homicide, for the purpose of aiding in the
administration of the criminal laws of the state. The accused is neither
represented, nor has the right to be, at the inquiry. For even better
reasons, other persons who have property interests dependent upon
the cause of the death would not be allowed to participate in the hear-
ing before the coroner's jury, with a view to establishing rights by
the verdict. That tribunal is unprovided with much of the necessary
machinery for conducting such inquiries. It would, it seems to us, be
abhorrent to the principles of the common law, as administered in this
country, that one not so represented should be bound by the finding
of the coroner's jury, his rights concluded without a trial at which
he could be heard — a trial "behind his back," as has been said. If such
rdict be admissible as evidence, it follows from its very nature that
it might alone constitute proof of the main fact, and of every essen-
«* I'urt of opinion is omitted-
Sec. 2) RECOGNIZED EXCEPTIONS 637
tial fact in issue. It might, for example, not only show the fact of
death by violent and external means within a date covered by the
policy, but find also that it was accidental or was not accidental. In
either event, a property right of one or the other of the litigants would
be determined by a proceeding of which no notice was given to him,
upon testimony not preserved, and may be wholly incompetent or in-
sufficient, and without an opportunity to cross-examine the witnesses
whose oaths established it. Thus he would be deprived of his prop-
erty without "a day in court," for the first verdict might be enough,
if the only evidence offered or obtainable, and the second one would
be merely a formal ratification. If the verdict of the coroner's jury
is not binding upon the world as a proceeding in rem, it could not
be admitted as evidence on any other ground. It might be proof of
the fact of the death of the person examined, and of the identity of
the body. Further than that we are not prepared to admit it.
In England the coroner is not only a judicial officer, as well as
ministerial, but his court is a court of record. His jurisdiction there
extended far beyond the possibilities here. The importance and use
of that court may have justified its rank in England, and their accred-
iting its judgments as those of courts of record in proceedings in rem
are usually accorded. Anciently when the goods of a suicide passed
to the crown, and when the property of one attainted escheated to
the lord, and when death resulted from misfortune or negligence (un-
til the statute of 10 Vict. 62), the deodand was forfeited to the town-
ship for use of the king's almoner, the coroner's verdict and the es-
cheator's inquest were treated as judicial findings in rem, and were
conclusive evidence as such, although they later came, mainly through
the intervention of Lord Hale, to be admitted as rebuttable evidence
only. Starkie, Ev. 289, 404. Our system of inquests was not de-
signed for such purpose. Neither the ancient prerogatives of these
functionaries, nor the presumptions attendant upon their findings, can
have a place in our jurisprudence. 85
Able counsel present the argument in behalf of the admissibility of
this evidence with much earnestness, and have cited a number of cases
from other jurisdictions in support of their contention. In /Etna Life
Ins. Co. v. Kaiser, 115 Ky! 539, 74 S. W. 203, 24 Ky. Law Rep. 2454,
in disposing of an offer to introduce the coroner's inquest as evidence
on the trial against the insurance company on the policy, the court said :
"We are clearly of opinion that this was incompetent, and was properly
rejected." As that opinion did not cite or discuss the authorities, it
is assumed in argument that it was adopted not after mature consid-
eration of the question. The leading case in America of the class re-
lied on by appellant is United States Life Ins. Co. v. Vocke, 129 111.
85 That under the modern English rule the coroner's inquest is not admit-
ted to prove the cause of death, see Bird v. Keep, [1918] 2 K. B. D. 692, re-\\
viewing a large number of the later cases.
638 HEARSAY (Ch. 3
557, 22 N. E. 467, 6 L. R. A. 65. In that case the coroner's jury had
found that the insured had come to his death by a pistol shot fired by
his own hand, while laboring under a fit of temporary insanity. Al-
though a copy of the inquest was furnished to the insurance company
by the beneficiary in the proof of death, the court elected to ignore
that fact, and proceeded to a discussion and decision of the more diffi-
cult proposition, whether ' the inquest was not competent as original
evidence of the manner in which the assured had died. The opinion
cites a number of English cases and text-writers and English statutes
concerning the jurisdiction of the coroner, and the effect of verdicts
rendered in his court. It was declared that this ancient office was
judicial as well as ministerial, and so recognized by parliamentary acts,
from which it was said the Illinois statute creating the office was not
substantially different. From the similarity of the statutes, which the
court held to be but declaratory of the common law, it was decided to
apply the English doctrine as to the nature of the inquest. * * *
The Supreme Court of Colorado, in Germania Ins. Co. v. Ross-
Lewin, 24 Colo. 43, 51 Pac. 488, 65 Am. St. Rep. 215, holds to the
contrary doctrine — that which is applied in this state. The Vocke
Case, supra, Pyle v. Pyle, 158 111. 289, 41 N. E. 999, following it, and
the California case rested upon it, are analyzed and rejected. As
showing the impolicy of the old English rule if attempted to be applied
to insurance cases, when suicide was a controlling question, that court
reasoned thus : "In case of death under suspicious circumstances, or
resulting from accident, the rule permitting inquisitions to be used in
evidence would result in a race and scramble to secure a favorable
coroner's verdict, that would influence, and perhaps control, in case
suit should be instituted against life insurance companies upon poli-
cies of insurance, and in case of accidents occurring as the result of
negligence on the part of corporations operating railways, street car
lines, mining for coal, the precious metals, etc. Law-writers of late
have frequently animadverted upon the carelessness with which such
inquests are frequently conducted, and to allow inquisitions to be used
in a suit between private parties upon a cause of action growing out of
the death of the deceased, as in this case, would be to introduce an ele-
ment of uncertainty into the practice which we think would be contrary
to public policy, and pernicious in the extreme; and for these rea-
sons we conclude, upon careful consideration, that the safer and better
rule is to exclude such inquisitions." Citing State v. Countv Com'rs, 54
Md. 426; Goldschmidt v. Mutual Life Ins! Co., 102 N. Y. 486, 7 N. E.
408. * * *
Affirmed. 88
so For the contrary view, pop Foster v. Sheppard, 258 Til. 164, 101 N. E.
411, 45 I., R. a. (N. S.) L67, Ann. Cas. L914B, 572 (1913). Bu1 Bee Peoria
Cordage Co. v. Industrial Board of Illinois, 284 ill. 'JO, 119 N. 10. 996, L. R. A.
L918E, 822 (1918), to the effeel that the perdlcl of the coroner's jury is aol
admJ Bible to prove thai an injury which caused the death of an employe
Sec. 2) RECOGNIZED EXCEPTIONS C39
MILLER v. NORTHERN PAC. RY. CO.
(Supreme Court of North Dakota, 1908. 18 N. D. 19, US N. W. 344, 19 Ann.
Cas. 1215.)
Fisk, J. 87 This is an appeal from a judgment of the district court
of Eddy county in defendant's favor rendered pursuant to a verdict di-
rected by the court.
The action was brought to recover damages from defendant, as a
common carrier of freight, for alleged negligence in transporting a cer-
tain car of flax belonging to plaintiff from Barlow, in this state, to Du-
luth, Minn., whereby it is claimed that a certain quantity of such flax
was lost in transit. The car was consigned to Crumpton & Crumpton,
commission brokers at West Superior, Wis., and in due course the
same was sold by them at Duluth and a return of the proceeds made
to plaintiff, which returns were based upon weights taken by the state
weighmaster's department of the state of Minnesota at Duluth. Plain-
tiff, to prove his cause of action, relied solely upon the discrepancy be-
tween the weights taken at Barlow at the time the flax was loaded into
the car and the weights as shown by the records in the office of the
state weighmaster aforesaid; no evidence being offered to show leak-
ages in the car or that it had been tampered with while in transit. Ap-
pellant relies for a reversal of the judgment upon alleged errors of the
trial court in rejecting testimony offered by him to show the records
made in the office of the state weighmaster pertaining to the car of
flax in question. This testimony consisted of a deposition of one J.
B. Sutphin, state weighmaster at Duluth, who testified that, according
to his records, the car was weighed by one Bagley at the time of its ar-
rival, who was at that time a properly qualified assistant weigher in his
department, and that such assistant made a record in writing of the
date, description, and weight of the car and turned the same into his
office in regular course of business pursuant to his official duty, where
it had been at all times since. The witness had no personal knowledge
of such weighing and did not know of his own knowledge whether it
was correctly weighed or not. All he knew about it was that it was
weighed in accordance with the system in vogue in his department and
in accordance with the statutes of Minnesota in force at that time ap-
plicable thereto. * * *
was received in the course of his employment, because such an inquiry was
beyond the scope of the coroner's statutory authority.
Compare Morris & Co. v. Industrial Board of Illinois. 2S4 111. 67, 119 N. B.
944, L. R. A. 191SE, 919 (1918), annotated, supporting the admissibility of a
verdict of the coroner's jury to prove that the cause of death was a fall on a
stairway on the premises of the employer.
Tlie modern cases on this point are collected in the note to Krogh v. Mod-
ern Brotherhood of America, 45 L. K. A. (X. S.) 404 (1913).
s7 Part of opinion of Fisk, J., the opinion on rehearing, and the dissenting
opinion of Spalding, J., are omitted.
640 HEARSAY (Ch. 3
Under the provisions of the Minnesota law in question, we find noth-
ing in express terms making such record prima facie evidence of the
truth of the matters therein set forth in the courts of Minnesota ; but
this law does provide that such weighmaster and his assistants shall,
upon demand, give to any person or persons having weighing done a
certificate under his hand and seal showing the amount of each weight,
number of car, etc., and that such certificate shall be admitted in all ac-
tions, etc., as prima facie evidence of the facts therein contained. The
Code of this state (section 7298. Rev. Codes 1905) provides that : "En-
tries in public or other official books or records, made in the perform-
ance of his duty by a public officer of this state, or by another person
in the performance of a duty specially enjoined by law are prima facie
evidence of the facts stated therein." And section 7299 of the same
Code provides that : "An entry made by an officer, or board of officers,
or under the direction and in the presence of either in the course of
official duty is prima facie evidence of the facts stated in such entry."
It is contended by counsel for appellant that the latter section refers
to official records generally, and is not confined to those made by offi-
cers in this state. In this we think he is in error. It is apparent to our
minds that it was the legislative intent that these sections should apply
only to domestic records. There is therefore no express statute in force
in this state making foreign records, such as the one in question, prima
facie or any evidence per se of the facts therein stated ; but the sections
above quoted, in our opinion, are not exclusive in their provisions, and,
as we construe them, there is nothing therein contained which restricts
or limits the courts to domestic records in giving effect to them, when
properly proved as prima facie evidence. While the question is not
free from doubt, and while there seems to be a dearth of authorities up-
on the precise point here involved, we are of the opinion that the tes-
timony was admissible and should have been received. We think it
comes within the well-recognized exception to the rule excluding hear-
say testimony in cases of public records made by public officers in the
discharge of their official duties. We know of no good reason why
this exception should be limited to public records in the state where
kept, and no such restriction of the rule seems to have been recognized
by the authorities.
The ground upon which this exception rests is well stated in Wig-
more on Ev. vol. 3, ,§§ 1630-1683; 1 Greenleaf on Ev. (16th Ed.) vol.
1, §§ 483, 484, 493: 1 Whart. Ev. §§ 639, 347; 9 Am. & Eng. Enc.
Law (2d Ed.) 882-883; 17 Cyc. 306, and cases cited. In paragraph 2,
,§ 1633, of Prof. Wigmore's valuable work on Evidence, it is stated:
"The subjective influence of the official duty being the essential justify-
ing circumstance, it follows that an official statement by a foreign of-
ficer is equally admissible with one made by a domestic officer. That
the duty is not recognized by the domestic law is immaterial; it exists
for the for< r; and so far as it exists, it affords an equally
1 sanction. This application of the principle, though plain, has
Sec. 2) RECOGNIZED EXCEPTIONS 64]
rarely been drawn in question." And again, in section 1652, the same
author states: "That an official statement authorized to be made is
the statement of a foreign officer does not make it any the less admis
sible. The essential thing is the authority of the officer, and a foreign
authority equally satisfies the principle. There is, in the United States,
the additional consideration that, under the federal Constitution (ar-
ticle 4, § 1) and the federal Revised Statutes (section 906 [U. S. Comp.
St. 1901, p. 677]), the courts of each state are required to give full
faith and credit to the records of other states, and this may well be
held to imply that recognition should be given (not merely as a matter
of comity, but as a matter of legal right) to an official authority created
bv the laws of another state for its domestic recording officers."
* * *
Affirmed (on the ground that the error was harmless). 8 *
VII. Reputation
(A) In Regard to Rights in Land
MOREWOOD v. WOOD.
(Court of King's Bench, 1791. 14 East, 327, note.)
Trespass for breaking and entering the plaintiff's close called Swan-
wick Common, in the parish of Alfreton, in the county of Derby, and
digging stones therein, and carrying them away, &c. The defendant
pleaded, that there are certain wastes or commons lying open to one
another, one called Swanwick Common, being the close in which, &c.
the other called Swanwick Green, in Alfreton, &c. and that he was seiz-
ed in fee of a messuage and lands in Alfreton, in right of which he
prescribed for the liberty of digging for and carrying away all neces-
sary flags and stones in Swanwick Common, and in Swanwick Green,
for' the repair of his houses, fences, &c. The plaintiff replied, that he
was lord of the manor of Alfreton, and that the defendant of his own
wrong committed the trespass. The defendant, in his rejoinder, in-
sisted on his prescriptive right as stated in the plea; on which issue
was joined. At the trial before Hotham, B. at Derby assizes, the de-
fendant called many witnesses, who proved that, for between 60 and
70 years past, he and those from whom he claimed had been in the con-
stant exercise of the right stated in his plea ; in many instances to the
ssSee, also, Oakes v. United States, 174 U. S. 778, 19 Sup. Ct. 864, 43 K
Ed. 11«J9 (1899), admitting a record of the Confederate States, preserved Id
the War Department of the United States.
Compare Morrissey v. Wiggins Ferry Co.. 47 Mo. 521 (1871) excluding a for
eign church register of baptisms, though the Missouri statute made similar
local registers admissible.
Hint.Ev. — 41
642 HEARSAY (Ch. 3
Knowledge of the lord, who had threatened to bring actions, and been
dared to do so by the defendant's ancestors, who insisted on their right.
On the other hand, the plaintiff produced a presentment in 1717, of the
neeholders of the court baron of the manor of Alfreton, of which the
plaintiff is lord, and which presentment was signed by one Robert
Wood, the foreman, and others ; which name of Robert Wood was
proved to tally with the subscription (1) to the will of Robert Wood,
'he grandfather from whom the defendant claimed, and which will was
produced from the registry. One of the items in that presentment was,
— "If any person gets stone without leave of the lord of the manor,
we pain him 10s." The plaintiff also called another witness to prove
that, in a conversation with the defendant's uncle, from whom the de-
fendant also claimed, the uncle had admitted that the lord of the manor
had the right, and he would not be beholden to him for the stone. The
jury found for the defendant. Thus much appeared on the Judge's
report, on a motion for a new trial. But the plaintiff's counsel stated
further, (which was admitted by the other side, and so taken by the
Court,) that the learned Judge had rejected other evidence which they
had tendered, and for which alone the new trial was moved for, viz.
1st, Other presentments of a similar nature to the one received in
evidence; but to which no subscription could be proved by any person
from whom the defendant claimed ; this was offered as evidence of
reputation.
2d, General parol evidence of reputation, that none but the lord had a
right to dig stone, &c. on the locus in quo.
Lord Kenyon, C. J. (after the argument). 89 The evidence given
by the defendant of an usage of about 70 years is extremely strong in
his favour; and the only evidence to weigh against it is that of the pre-
sentment signed by Robert Wood : but that is not necessarily inconsist-
ent with it. The lord might have the general right, and yet a particular
tenement have a prescriptive right also. On that ground, therefore,
there is no pretence for impeaching the verdict. With respect to the
other question raised respecting the rejection of general evidence of
reputation ; it is involved in great dispute ; and one is apt to imbibe
prejudices from the opinion one has always heard inculcated. Upon
the Oxford circuit which I went, such evidence was never received ;
and I cannot help thinking that that practice is best supported by princi-
ple. Evidence of reputation upon general points is receivable, because
all mankind being interested therein, it is natural to suppose that they
may be conversant with the subjects, and that they should discourse to-
ther about them, having all the same means of information. But
this apply to private titles, cither with regard to particular cus-
toms or private prescriptions? How is it possible for strangers 90 to
< 'pinions of Asiiimrsf and Grose, JJ., omlttedt
»o Parke, B., in Crease v. Barrett, 1 C, M. & k. :>i!t (1835): «« • • • The
objection now takeii is, thai the answer t<> the ninth article Is nol admissible,
not because reputation un such a subject is not evidence, it being a question
Sec. 2) RECOGNIZED EXCEPTIONS 643
know any thing of what concerns only these private titles? I barely,
however, throw out these hints as the ground of my present opinion;
laying in my claim to change that opinion if I should hear any thing
which shakes it.
BullER, J. I have already mentioned what has been the general
practice on the Oxford and on the Western circuit; and as there are
two judges from each of those circuits in court, it is hardly likely for
us to agree upon the general point. But thus far I agree with my lord
and my brother Ashhurst, that in no case ought evidence of reputation
to be received, except a foundation be first laid by other evidence of the
right. Now here there was no foundation, or at least a very slight
one, in comparison to the evidence given by the defendant. But I can-
not agree that it ought not to be received at all. It was settled that it
ought in the cases cited in argument, and also in many other instances
which relate merely to private titles : in one in particular, as to whether
such a piece of ground is parcel of one close or another. So again in
the case of pedigrees. But as to this particular case, the evidence is
very strong with the defendant. It was not proved that the estate in
question was in the possession of the defendant's grandfather at the
time he signed the presentment which was read in evidence ; and even
if that were made out, all the evidence since for above 60 years is the
other way. The defendant's ancestors have all that time taken stone in
defiance of the presentment, and in the face of the lord himself, who
was dared to bring an action for it. Now, supposing all the evidence of
reputation had been received, I think it ought to have weighed so slight-
ly with the jury, that the court ought not to grant a new trial. For I do
not know that, because evidence which ought to have been received
was rejected, therefore the court are bound to grant a new trial, if they
see clearly that the verdict is right, notwithstanding such evidence had
been admitted.
Rule discharged.
of the custom of mining in a particular district, but because it comes from
the customary tenants, who in that character have nothing to do with the
mines ; and it is insisted, that it is a requisite qualification of hearsay evi-
dence on such a subject, that it ought to be derived from those who are them-
selves concerned in mining, or receiving the dues of the mines. That hear-
say evidence on some such subjects cannot be received, unless with the quali-
fication that it comes from persons who have a special interest to inquire, is
clear. Thus, in cases of pedigree, it must be derived from relatives by blood,
or from the husband, with respect to his wife's relationship: it is not ad-
missible, if it proceeds from servants or friends. Jobnson v. Lawson, 2 Bin-'.
S6 [1824]. And in this description of hearsay evidence the line is clearly
defined. So, in cases of rights or customs, which are not, properly speaking,
public, but of a general nature, and concern a multitude of persons, as ques-
tions with respect to boundaries and customs of particular districts, though
the rule is not so clearly laid down, it seems that hearsay evidence is no*
admissible, unless it is derived from persons conversant with the neigbbo - >r
Uood."
644 HEARSAY (Ch. 3
ROE dem. BEEBEE v. PARKER.
(Court of King's Bench, 1792. 5 Term R. 26.)
In this ejectment to recover certain customary lands in the manor of
Sedgley, which was tried at the last assizes for Stafford before Perryn,
B., the lessor of the plaintiff claimed under a custom of the manor for
the youngest kinswoman to inherit in default of issue, and of broth-
ers, sisters, nephews and nieces, of the person last seised. The plaintiff
offered in evidence an entry in the court rolls of the manor, stating
what the custom was : but the defendant's counsel objected that such
evidence of the custom ought not to be received, until instances had
been proved of such a mode of descent having taken place. On the
other side it was alleged, that the contrary had been held in a case in
this court, wherein such evidence had been determined to be admissible ;
and under this impression the cause proceeded, and the evidence was
given as follows : * * *
It appeared that some of the ancient court rolls were lost; but no
instance in the court rolls was produced of any admission beyond
sisters, nor was any instance of the youngest kinswoman taking proved
by living witnesses. It appeared however that, if the lessor of the
plaintiff were not entitled, another branch of that family, who did not
dispute the lessor's right, had a better title than the defendant. The
jury found a verdict for the plaintiff.
A rule having been obtained, calling on the plaintiff to shew cause
why the verdict should not be set aside, on the ground that the evi-
dence of the presentment of such a custom on the court rolls, by the
homage, was not of itself sufficient to establish the custom, in as much
as no instance was produced of its having been put in ure ; which it
was contended was the true principle on which the determination of
Denn dem. Goodwin v. Spray [1 Term R. 466] was founded;
Bearcroft, Bower, Leycester, and Simpson, shewed cause against the
rule. * * * But with respect to the mode of proof the court rolls
of a manor were not only good evidence of the custom, but the best
evidence; because the highest credit was given to the publicity and
authenticity of the records of the manor. Then in either respect, it
was the same whether the homage presented what the custom was
generally, or whether particular instances were stated by them.
* * * If this kind of proof uncontradicted were not sufficient evi-
dence of itself it would scarcely be possible in cases like the present,
where the rolls were lost, to prove every particular sort of descent by
instances ; for it could scarcely happen that living witnesses could
speak from their own knowledge 01 to all of them.
02
oi Le Blanc, J., in Weeks v. Bparke, l Iff. & 8. 079 (1813): "• • • The
question arose upon a claim of a prescriptive right of common; such a right
"* Statement condensed and opinion of Grose, J., omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 645
Lord Kenyon, C. J. Considering the real merits of this case, a
more unrighteous attempt was never made in a court of justice. For it
is admitted that if the plaintiff be not entitled to recover under the
custom, on which she relied, another relation is ; and the general
question is whether the defendant, who is a wrong-doer, shall pre-
vent either of these parties' recovering ; that alone would be a suffi-
cient reason for our refusing to grant a new trial. However I dis-
claim deciding upon that ground ; for the objection, which has been
made to the evidence of the plaintiff's claim, tends to shake one of the
fundamental rules of law. I admit that the custom of one manor
cannot be extended, by analogy, to another : but the mode of descent,
under which a party claims, must be established by proof ; and the
question here is whether or not there were any evidence of the cus-
tom, upon which the plaintiff's claim was founded: The custom is
clearly defined in the paper writing produced from the Rolls; and,
without referring to the strict rules of law, let us consider the authen-
ticity of this document on principles of plain common sense. Near a
century and an half ago the homage (the tenants holding under the
lord of the manor) being convened together eo nomine as the homage
(not for the purpose of extending their claims either against the lord
or strangers, but) in order to ascertain those rights which were their
own in common with the rest of the tenants, and being possessed of
all that information which either tradition or their own personal ob-
servation could furnish, proceeded to describe the several customs,
which regulated the descent of the different species of tenure within
this manor. Now can it be supposed that these persons, acting under
the sanction of an oath, could for no purpose whatever give a false
representation of these customs ; or is it not more probable that their
account was the true one? Common sense and common observation
would induce us to believe the latter. The argument against the ver-
dict seems to admit that this document was a degree of evidence when
it was produced to the jury; and if it were admissible in evidence,
it not being opposed by any other species of evidence, and the jury
having given credit to it, it puts an end to the question. And that this
was admissible cannot be doubted ; for tradition and the received opin-
ion are the evidence of the lex loci. A distinction indeed prevails be-
tween a prescription as applied to a particular tenement, and a custom
as the party alleged to have existed beyond the time of legal memory ; and
the question is how that right is to be proved. First, it is to be proved by
acts of enjoyment within the period of living memory. And when that found-
ation is laid, then inasmuch as there cannot be any witnesses to speak to acts
of enjoyment beyond the time of living memory, evidence is to be admitted
from old persons, (not any old persons, but persons who have been conversant
with the neighborhood where the waste lies over which the particular right
of common is claimed,) of what they have heard other persons, of the same
neighborhood, who are deceased, say respecting the right. Thus far it is
evidence as applicable to this prescriptive right, it being a prescription in
which others are concerned as well as the person claiming it."
646 HEARSAY (Ch. 3
affecting the whole district. And the latter has gone so far that the
custom of one manor has been given in evidence to shew the custom
of another, where they are both governed by. the Border-Law. Now
here was full proof of a tradition respecting the custom of descent
in this manor; it was the solemn opinion of twenty-four homagers,
who are the constitutional judges of that court, delivered on an occa-
sion when they were discussing the interests of all the tenants of the
manor. I cannot distinguish this from the instance of a terrier, which
is certainly evidence. The case of Goodwin v. Spray is distinguishable
from the present. Every thing that was said by the Court in giving
judgment must be understood secundum subjectam materiem. That
case first decided that such an instrument as the present is admis-
sible ; and then that that part of it, which said that lands were not
partible either between males or females, in general terms, was to be
explained by the custom as it had existed in point of fact, which did
not extend to nieces. And if that decision go farther, and determine
that such a document is not admissible in evidence unless instances in
fact be previously proved to warrant the introduction of it, I must beg
leave to dissent from it. In this case, supposing the defendant had
demurred to this evidence, I think that the Court must have drawn the
same conclusion from it which the jury have drawn; and therefore on
the law of the case, without recurring to the first ground which I
mentioned, I think that the rule for a new trial should be discharged.
Rule discharged. 93
DOE, Lessee of DIDSBURY, v. THOMAS et al.
(Court of King's Bench, 1811. 14 East, 323)
This was an ejectment to recover a farm consisting of 35 acres of
land, in the parish of Tideswell in Derbyshire, which was tried at
Derby, before Wood, B. Ann Didsbury, the lessor, claimed the prem-
ises under the will of Samuel White, dated 26th of November 1754,
whereby he devised them by the description of, "all those his closes,
lands, and hereditaments, with the appurtenances, situate at Tideswell,
then in the possession of his son Richard White, to trustees, (C. Flint,
the lessor, being the executor of the surviving trustee,) for a term
of 500 years, in trust to raise £260. for certain purposes; and subject
thereto, to his son Richard White for life; remainder to his grandson
Richard White for life: remainder to the heirs of the body of his said
grandson R. W. 04 * * *
■■'■■■■ [u Reed v. Jackson, l Bast, 355 (1801), on the issue of a customary right
of w:iy over the land in controversy, a verdict in another action between
differenl parties was admitted, and Lawrence, J., observed: "Reputation
would have been evidence as to the righl of way in this case; a fortiori,
therefore, the finding of twelve men upon their oath."
«* I'art of case omil ted.
Sec. 2) RECOGNIZED EXCEPTIONS 647
The only question made at the trial was, whether Samuel White, the
testator, was seised of these premises at the time of making his will
and at his death ; the plaintiff insisting that he was so seised ; having,
as it was alleged, purchased them of Sir John Statham, and permitted
his son Richard to occupy them until his (the testator's) death. It ap-
peared that the premises in dispute consisted of a farm called the
Meadow Farm, originally seven closes, but now divided into nine, and
in all 35 acres : and it was proved by several witnesses that one George
Robinson, who was tenant to Sir John Statham, occupied the farm
before the first Richard White had it ; and that Richard took possession
of it about 61 years ago, and continued possessed as long as he lived,
and occupied no other land which could have been his father's during
that time. That his father, Samuel, lived from 10 to 14 years after the
first Richard was in possession of the farm. But another witness, who
also deposed to the fact of the first Richard's taking possession of and
occupying the Meadow Farm at the same time when his brother, Ed-
ward White, occupied another farm called Foxlow's Croft, said that
both farms were reputed to be Sir John Statham's, and to have been
purchased by Samuel White of Sir John Statham at the same time.
Then a deed was proved, dated 25th of March 1752, and made between
Samuel White of the one part, and Edward White, one of his sons,
of the other part ; whereby Samuel White, in consideration of natural
love and affection, &c. bargained and enfeoffed his son Edward and
his heirs of all that farm, &c. within Tideswell, called Foxlow's Croft ;
all which said farm, &c. have been lately purchased amongst other
lands and hereditaments by the said Samuel White of and from Sir
John Statham, &c. ; habendum to Edward White in fee.
Objection was taken by the defendant's counsel to the evidence of
reputation before stated; but the learned Judge was of opinion that,
coupled with the deed above mentioned, the evidence was admissi-
ble. He thought that as it was in proof that Sir John Statham was
the landlord of the Meadow Farm when it was occupied by G. Robin-
son before the first Richard White's occupation of it : and that as the
deed also proved that Sir John Statham was also the owner of Fox-
low's Croft, and that Samuel White had purchased that, amongst
other lands and hereditaments, of Sir John Statham; and as it was
also proved that both the sons (Edward and Richard,) took possession
of their respective farms at the same time ; there was a sufficient basis
laid to admit reputation that those other lands and hereditaments re-
ferred to in the deed were the Meadow Farm: * * * The jury
found for the plaintiff.
Clarke, in last Easter term, moved for a new trial, upon the ground
of the objection taken at the trial against the admissibility of the evi-
dence of reputation, that the land at Tideswell, described in the will
as then in the possession of the testator's son Richard, had belonged
to Sir John Statham, and was purchased of him by Samuel White, the
testator. He insisted that in no case was reputation admissible to prove
648 HEARSAY (Cll. 3
ownership or possession of private property. And a rule having been
granted. * * *
The Court agreed that the rule must be made absolute ; Lord El-
LEnborough, C. J., saying that it was very unfortunate for the lessor,
where the verdict must be the same upon another trial, that they
should be obliged to send the cause to trial again.
Rule absolute. 86
DUKE OF NEWCASTLE v. BROXTOWE.
(Court of King's Bench, 1832. 4 Barn. & Adol. 273.)
See ante, p. 53, for a report of the case."
so For a collection of the earlier cases on the point, see notes to principal
case, 14 East, 327-331.
Morton, J., in Green v. Chelsea, 24 Pick. (Mass.) 71 (1836): "The justice
who presided at the trial, went far enough in permitting the tenants to prove
that the premises were called the town landing and known by that name, and
did right in excluding evidence that it was reputed to be the town's property.
Reputation is never evidence of title, nor is it ever admissible in support of
private rights."
Though only a private boundary is in issue, yet when it is shown to depend
on a public boundary, the latter may be proved by reputation to the same ex-
tent as if it were in issue. Thomas v. Jenkins, ante, p. 110.
98 Lawrence, J. f in the Berkley Peerage Case, 4 Camp. 401 (1811): "I con-
cur with the Judges who have stated their opinions against the admissibility
of the evidence. From the necessity of the thing, the declarations of members
of the family, in matters of pedigree, are generally admitted ; but the ad-
ministration of justice would be perverted if such declarations could be ad-
mitted which have not a presumption in their favour that they are consistent
with truth. Where the relator had no interest to serve, and there is no
ground for supposing that his mind stood otherwise than even upon the sub-
ject (which may be fairly inferred before any dispute upon it has arisen,)
we may reasonably suppose that he neither stops short, nor goes beyond the
limits of truth in his spontaneous declarations respecting his relations and
the state of his family. The receiving of these declarations, therefore, though
made without the sanction of an oath, and without any opportunity of cross-
examination, may not be attended with such mischief as the rejection of such
evidence, which in matters of pedigree would often be the rejection of all
the evidence that could be offered. But mischievous indeed would be the
consequence of receiving an ex parte statement of a deceased witness, al-
though upon oath, procured by the party who would take advantage of it,
and delivered under that bias which may naturally operate on the mind in
the course of a controversy upon the subject. Notwithstanding what is said
in Goodright v. Moss, I cannot think that Lord Mansfield would have held
that declarations in matters of pedigree, made after the controversy had aris-
en, ought to be submitted to the jury. They stand precisely on the same
footing as declarations on questions of rights of way, rights of common, and
Other matters depending apoo usage; and although I cannot call to mind the
ruling of any particular Judge upon the subject, yet I know that according
to my experience of the practice, (an experience of nearly forty years,) when-
!• :i witness has admitted that what lie was going to state he had heard
after the beginning of a controversy, his testimony has been uniformly re-
jected if the danger of fabrication and falsehood be a reason for rejecting
such evidence In cases of prescription, thai will equally apply In cases of
e, where the stake is generally of much greater value. • • *"
Sec. 2) RECOGNIZED EXCEPTIONS 649
THE QUEEN v. BLISS.
(Court of Queen's Bench, 1837. 7 Adol. & E. 550.)
Indictment for obstructing a public highway. Plea, not guilty. On
the trial before Gaselee, J., at the Suffolk Spring assizes, 1836, a prin-
cipal question was, whether the way obstructed was public or private.
A witness for the prosecution stated that one Ramplin, a publican, who
was dead at the time of the trial, had planted a willow thirty years ago
on a meadow, of which he was tenant and occupier, and over which the
way in question now ran. The counsel for the prosecution then asked
"what Ramplin said, when he planted the willow, about his planting
it?" The question was objected to, but admitted by the learned judge,
and the witness answered that Ramplin said he planted it to show where
the boundary of 'the road was when he was a boy. The willow had
remained ever since. The jury found that the way was public, and a
verdict was taken for the crown. In the ensuing term, a rule nisi was
obtained for a new trial, on the ground that the above evidence ought
not to have been admitted.
Lord Denman, C. J. 97 The question in this case was, whether the
road obstructed was or was not a public highway. To prove that it
was so, a witness was called whose statement was calculated to make
a great impression on the jury. He stated that Ramplin, a former oc-
cupier of the meadow over which the road ran, had planted a willow,
and in doing so, said that he planted it to show where the boundary
of the road was when he was a boy. And it is inferred, from the cir-
cumstances, that Ramplin meant to speak of the road as having been
public. I think the evidence was not admissible. It is not every dec-
laration accompanying an act that is receivable in evidence: if it were
so, persons would be enabled to dispose of the rights of others in a
most unjust manner. The facts that Ramplin planted a willow on the
spot, and that persons kept within the line pointed out by it, would have
been evidence ; but a declaration to show that the party planted it with
a particular motive is not so. Then, is the declaration evidence as made
against the party's interest? If we held that it was, we should get
rid of the authority of Daniel v. North, 11 East, 372, where it was
held that a tenant cannot, merely by his own admission, bind the land-
lord. It is true that the landlord and tenant here may have had the
same interest ; but so they possibly may in any case : they might in
Daniel v. North. Neither was the evidence admissible as showing
reputation. Any statement from a person since deceased is to be receiv-
ed with caution. Lord Ellenborough, in a leading case on this subject,
allowed, with great reluctance, the admissibility of reputation as evi-
dence. But here the deceased party is reported to have said that the
»7 Opinion of Patteson, J., omitted.
G50 HEARSAY (Ch. 3
boundary of the road was at a particular spot ; that is, that he knew it
to be so from what he had himself observed, and not from reputation.
I think, therefore, that the rule ought to be absolute.
Williams, J. There is no doubt that evidence of reputation is ad-
missible where the question to which it applies is merely whether
the road be public or not. In Ireland v. Powell, Peake on Evidence,
16, 5th edit., the question being whether a turnpike stood within the
limits of a town, Chambre, J., admitted evidence of reputation that the
town extended to a certain point, and allowed it to be proved that old
people, since dead, had declared that to be the boundary, but not that
those people had said that there formerly were houses where none
any longer stood ; observing that that was evidence of a particular
fact, and not of reputation. The statement offered in evidence here
is very like the declarations so rejected. It is not reputation, in the
proper sense. Declarations accompanying acts are a wide field of evi-
dence, and to be carefully watched. The declaration here had no con-
nection with the act done ; and the doing of the act cannot make such
a declaration evidence.
Coleridge, J. It is a rule that evidence of reputation must be con-
fined to general matters, and not touch particular facts. To try wheth-
er the declaration here was admissible according to that rule, let it
be severed from the fact of planting which took place at the same
time. Then it stands that Ramplin said he planted the tree for a cer-
tain purpose ; namely to show the boundary. That is a particular fact ;
and evidence given of it is like proof of old persons having been heard
to say that a stone was put down at a certain spot, or that boys were
whipped, or cakes distributed, at a particular place, as the boundary;
which statements would not be admissible.
Rule absolute.
DOE dem. MOLESWORTH et al. v. SLEEMAN.
(Court of Queen's Bench, 1846. 9 Q. B. 298.)
Ejectment for land, &c, in the county of Devon. On the trial before
Coleridge, J., at the Devon Spring assizes, 1845, it appeared that Sir
\Y. Molesworth claimed, as his own land, certain slips of ground called
landscores, extending respectively to the distance of eighteen feet
from the boundary fences of an alleged .manor called Affaland, of
which he was the proprietor : and it became a question on the evidence,
whether Affaland was or was not a manor, and whether, if it had
formerly been a manor, it had not ceased to be so, and become only a
manor by reputation. In proof of title to the landscores, the plain-
tiff's counsel offered in evidence declarations of old persons deceased
as to the reputed boundary of the manor, and as to the claim of eighteen
Sec. 2) RECOGNIZED EXCEPTIONS 651
feet beyond the fence as part of the manor lands. The evidence was
objected to, but received :
[After verdict for defendant, a rule nisi for a new trial was ob-
tained.]
Lord Denman, C. J., delivered the judgment of the Court.
The plaintiff claimed this property, seeking to prove it his by show-
ing that it was within the boundary of his reputed manor of Affaland ;
as to the line of which boundary he tendered evidence of reputation.
The learned Judge told the jury that they were to consider whether
this reputed manor was a manor, and that, if it were not, evidence of
reputation as to the line of boundary ought not to be considered by
them, because in that case there was no probability of conversations
taking place on this subject, as there were no tenants of the manor in-
terested in holding such conversations.
But, on consideration, we cannot accede to this doctrine: for a
reputed manor is that which has been a manor, though from some
supervening defects it has ceased to be .so. There seems to be no
reason why such conversations might not be held during the existence
of the manor, and kept in the memory since. And, further, the sup-
posed discourse which may be proved as reputation is not confined to
tenants, but may proceed from any persons residing in the neighbour-
hood, and likely to have been engaged in talking upon the subject.
Curzon v. Lomax, 5 Esp. N. P. C. 60, and Soane v. Ireland, 10 East,
259, are among the authorities on these points.
Rule absolute.
CLEMENT v. PACKER.
(Supreme Court of the United States, 1S88. 125 U. S. 309, 8 Sup. Ct. 907,
31 L. Ed. 721.)
Ejectment for a tract of land in the state of Pennsylvania.
The plaintiff claimed that the northern boundary of this tract was
identical with the southern line of the defendant's tracts, and that
such southern boundary was about 60 rods further north than that
claimed by the defendant, and down to which he was in actual pos-
session. The question in the case, as exhibited by the record, is one
of location, the burden of proof being on the plaintiff below to show
the location of the northern boundary of the William Elliott tract,
and that the 120 acres in dispute are within the limits of that tract.
To show the true location of the maple at the common corner of
the Reynolds and Billington tracts to be 60 rods south of where Rocke-
feller had claimed to locate it, he [defendant] offered in evidence the
deposition of John Fisher, deceased, taken in several cases pending
in the common pleas court of Northumberland county, between the
plaintiff in error and the Northumberland Coal Company in 1878, it
having been admitted that John Fisher was dead. This deposition
G52 nEARSAY (Ch. 3
was offered to prove by John Fisher that, in 1815, Henry Donnel was
surveying the Brush Valley lines, and he (Fisher) was with him as
chain-carrier ; that when they were running the line between the Bill-
ington and Reynolds tracts, and were at a point about 60 rods south
of the stump located by Rockefeller at a swamp, they found a stone
corner, — "stones piled up." Donnel said: "This is the corner; here
is where we located these warrants 21 or 22 years ago." The plaintiff
below objected to the admission of these declarations of Henry Don-
nel. The court sustained the objections, and rejected those portions
of the deposition embraced in brackets, and sealed the bill of exceptions
at the instance of the defendant.
The jury returned a verdict for the plaintiff below, upon which
judgment was rendered. The defendant below then sued out this writ
of error. 1
Mr. Justice Lamar. * * * The second specification relates to the
rejection by the court of a portion of the deposition of John Fisher,
referred to in the above statement. We gather from the brief of
counsel that the ground on which these declarations were ruled out
was that they were not within any of the exceptions to the general rule
that hearsay evidence is inadmissible to establish any specific fact
which in its nature is capable of being proved by the testimony of a
person who speaks from his own knowledge. In The Mima Queen
v. Hepburn, 7 Cranch, 290, 296 (3 L. Ed. 348), Chief Justice Mar-
shall says : "To this rule there are some exceptions which are said to
be as old as the rule itself. These are cases of pedigree, of prescrip-
tion, of custom, and in some cases of boundary. * * * Also mat-
ters of general and public history."
Upon the subject of boundary there is a general agreement that,
by the English rule, evidence of the declarations of deceased persons
as to the boundary of parishes, manors, and the like, which are of pub-
lic interest, is admissible, but that such evidence is inadmissible for
the purpose of proving the boundary of a private estate, unless such
boundary is identical with another of public interest. In many of the
states this strict rule has been extended, and these declarations have
been admitted to prove the boundaries of lands of private persons.
This extension of the rule has, we think, been sustained by the weight
of authority in the American state courts, as justified upon grounds
as strong as those on which the original rule rests. In Boardman v.
Lessees of Reed, Mr. Justice McLean states one of these grounds. He
says, (6 Pet. 328, 341 [8 L. Ed. 415,]) : "That boundaries may be proved
by hearsay testimony is a rule well settled, and the necessity or pro-
priety of which is not now questioned. Some difference of opinion
may exist as to the application of this rule, but there can be none as to
its legal force. Landmarks are frequently formed of perishable ma-
terials. * * * By the improvement of the country, and from oth-
i Statement condensed and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 653
er causes, they are often destroyed. It is therefore important, in
many cases, that hearsay or reputation should be received to establish
ancient boundaries." This was a case of private boundaries purely,
and the declarations were rejected, not upon the ground of hearsay,
but because they were considered as immaterial, and not tending to
elucidate any question before the jury.
The limitations upon this extension of the original rule are differ-
ent in different states. We do not deem it necessary, in the present
case, to lay down any definite rule, applicable to all cases, as to when
declarations of deceased persons constitute valid evidence to establish
private boundaries. The question is one involving the ownership of
real property in Pennsylvania, and it becomes our duty to ascertain
the rule established in that state, especially as respects the admissibility
of the declarations of deceased surveyors in cases of boundaries be-
tween private estates. In the case of Caufman v. Congregation, 6
Bin. (Pa.) 59, the plaintiff claimed a certain number of acres which were
surveyed by one Wilson, an assistant of the deputy surveyor, since
deceased. The deputy surveyor returned to the land-office a smaller
quantity than was contained in Wilson's actual survey. On the trial
of the case evidence of what was said by Wilson was objected to by
the defendant upon the ground that the official return of the survey
was the best evidence of the survey. The evidence was held by the
supreme court of Pennsylvania to have been rightly received. Chief
Justice Tilghman said: "It will be recollected that Wilson is dead;
otherwise nothing less than his own oath could have been received.
Where boundary is the subject, what has been said by a deceased per-
son is received as evidence. It forms an exception to the general rule.
It was necessary for the plaintiffs to show their possession of the
lands. * * * It was impossible for the plaintiffs to show the ex-
tent of their possession without showing the lines run by Wilson.
Those lines were the plaintiffs' boundaries; at least such was their
claim. It appears to me, therefore, that what was said by Wilson
came within the exception which admits the words of a deceased
person to be given in evidence in a matter of boundary."
These decisions 2 clearly require the admission of the testimony re-
jected by the court below, and the decisions cited by the counsel for
defendant in error also seem to us in harmony with the tenor and ef-
fect of them. * * *
To sustain the rejection of the evidence much reliance is placed on
the decisions of this court in the cases of Hunnicutt v. Peyton, 102
U. S. 333, 26 L. Ed. 113, and Ellicott v. Pearl, 10 Pet. 412, 9 L. Ed.
475. But as the question is one of Pennsylvania law, to be controlled
2 In the omitted passages, tbe opinion had reviewed the following cases:
Kennedy v. Lubold, SS Pa. 246 (1S79) ; Kramer v. Goodlander, 98 Pa. 366
(1881) ; MeCausland v. Fleming, 63 Pa. 36 (1S69) ; Conn v. Penn, PeL C. C.
496, Fed. Cas. No. 3,104 (1818).
654 HEARSAY (Ch. 3
by Pennsylvania decisions, the observations of the court in the cases
cited are not pertinent. * * *
The case of Ellicott v. Pearl, supra, was brought to this court by a
writ of error to the circuit court of the United States for the district
of Kentucky ; and, in the decision here, this court adhered to the Eng-
lish rule, and rejected the evidence of the declaration of a deceased
surveyor as to the boundary of a private estate. In so doing, this court
was simply enforcing the rule as it existed in Kentucky at that time.
In Cherry v. Boyd, Litt. Sel. Cas. 8, decided by the supreme court of
that state in 1800, it was held that evidence of the parol declarations
of a surveyor concerning the marks or lines of a private estate were
inadmissible. This being the settled law of Kentucky, this court could
not have decided otherwise than it did in Ellicott v. Pearl. But even
in that case the court uses the following guarded language : "The doc-
trine in America, in respect to boundaries has gone further, and has
admitted of general reputation as to boundaries between contiguous
private estates." * * *
Judgment reversed. 8
HEMPHILL v. HEMPHILL.
(Supreme Court of North Carolina, 1905. 13S N. C. 504, 51 S. E. 42.)
This is an action of ejectment. The question at issue is the location
of the line dividing the lands of the plaintiffs and defendants. Both of
these tracts originally constituted one tract, owned by Andrew Hemp-
hill. About 1850 a parol division of this land was made between B. C.
Hemphill, one of the plaintiffs, and John R. Hemphill, both sons of
Andrew Hemphill. The plaintiffs claim that the line in question, lo-
cated when the land was divided, runs from the mouth of the branch
emptying into Reem's creek to the point of a ridge, and thence in a
southeasterly direction on the face of the mountain across minor ridges
and gullies to the Jump Corner. The defendants claim that the line
runs from the mouth of the branch to the point of the ridge, and thence
in a northeasterly direction up the ridge to the Vance line. Between
these two lines contended for is the triangular piece of land in con-
troversy.
[There was a verdict and judgment for plaintiffs, from which de-
fendants appealed.]
Hoke, J. (after stating the facts). The rights of the parties to this
controversy were made to depend upon the correct location of the di-
visional line between Benjamin C. and John R. Hemphill, under whom
the defendants claim ; and the defendants contend that the true lo-
cation of this line runs from the "mouth of the branch to the point of
the ridge, and thence in a northeasterly direction up the ridge to the
in Sasser v. Hcrrin- 14 N. C •"• io ns: :•_'>. the court refused to extend the
doctrine to statements by Che deceased landowner In liis own favor.
Sec. 2) RECOGNIZED EXCEPTIONS 655
Vance line." In order to establish this position, the defendants offered,
first, the deed from John R. Hemphill, now dead, to the heirs of John
Brigman, bearing date November 14, 1866, as a declaration of John R.
Hemphill on the correct location of the line in dispute. The defendants
further proposed to prove by a witness (John G. Chambers) that he
had known the land in controversy for 50 years; that he knew the
general reputation in that community as to the true location of this
divisional line ; and that, according to such reputation, the same ran
along the top of this ridge, and was placed as the defendants claimed.
On objection by the plaintiffs, this testimony was held incompetent,
and the defendants excepted.
It is the law in this state that, under certain restrictions, both hear-
say evidence and common reputation are admissible on questions of
private boundary. Sasser v. Herring, 14 N. C. 340; Shaffer v. Gaynor,
117 N. C. 15, 23 S. E. 154; Yow v. Hamilton, 136 N. C. 357, 48 S. E.
782.
The restrictions on hearsay evidence of this character — declarations
of an individual as to the location of certain lines and corners — estab-
lished by repeated decisions are that the declarations be made ante litem
motam, that the declarant be dead when they are offered, and that he
was disinterested when they were made. Bethea v. Byrd, 95 N. C.
309, 59 Am. Rep. 240; Caldwell v. Neely, 81 N. C. 114. The declara-
tions of John R. Hemphill in this deed to the heirs of John Brigman
as to the location of his own line are hearsay. They are incompetent
for the reason that he was interested when the same, were made, and
the judge below ruled correctly in excluding them.
On the second point — the evidence offered from the witness John G.
Chambers on the general reputation as to the location of the divisional
line : Such evidence has been uniformly received in this state, and the
restriction put upon it by our decisions seems to be that the reputation,
whether by parol or otherwise, should have its origin at a time com-
paratively remote, and always ante litem motam ; second, that it should
attach itself to some monument of boundary or natural object, or be
fortified and supported by evidence of occupation and acquiescence
tending to give the land in question some fixed or definite location.
Den v. Southard, 8 N. C. 45 ; Mendenhall v. Cassells, 20 N. C. 43 ;
Dobson v. Finlev, 53 N. C. 496; Shaffer v. Gaynor, 117 N. C. 15, 23 S.
E. 154; Westfelt v. Adams, 131 N. C. 379-384, 42 S. E. 823. The
proposed evidence comes fully up to the requirement of these deci-
sions. The reputation is attached to a placing reasonably definite, and
the witness stated that he had known the land for 50 years ; knew the
general reputation in the community as to the line in dispute, and where
such line was placed by that reputation. We think it appears by fair
intendment that the reputation offered had its origin ante litem motam,
and at a time sufficiently remote.
There was error in rejecting the proposed evidence, which entitles
the defendant to a new trial.
656 hearsay . (Ch. 3
(B) In Regard to Persons
KIMMEL v. KIMMEL.
(Supreme Court of Pennsylvania, 1817. 3 Serg. & R. 336, 8 Am. Dec. 653.)
See ante, p. 404, for a report of the case.
REG. v. ROWTON.
{Court of Criminal Appeal, 1S65. 10 Cos, Cr. Cas. 25.)
See post, p. 764, for a report of the case.
FRAZIER v. PENNSYLVANIA R. CO.
(Supreme Court of Pennsylvania, 1SG1. 38 Pa. 104, SO Am. Dec. 467.)
This was an action on the case brought against the Pennsylvania
Railroad Company by William Frazier, who was a brakesman employ-
ed by the defendants, to recover damages for personal injuries received
by him in the course of his employment, by reason of a collision of
trains, caused by the negligence of one of the conductors of the defend-
ant.
After proving the manner in which the collision occurred, and the
injury occasioned by it, that the train conducted by Shaeffer was run-
ning out of time according to the company's schedules and instruc-
tions, and that although in the opinion of the witnesses the accident
"might have happened to a good and careful man," yet there "was a
little carelessness about it," the plaintiff offered to prove by Shaeffer the
conductor (who was no longer in the service of the company), that he
had had several collisions on the road before, for which he was fined
by the company, and that the agents, &c, of the company, knew this;
that the former collisions were caused by his carelessness ; that they
were known to the company, and were so treated by them. To all
which the defendants objected, on the ground that previous special
acts of negligence are not matters for the jury as to general character,
and also for the reason that there can be no recovery against the
company for injury done to one servant by the carelessness of another.
But the court overruled the objection, admitted the evidence, and seal-
ed a bill of exceptions for defendant. 4
The opinion of the court was delivered by
LOWRIE, C. J. The fundamental averment here is, that it was be-
cau ' of the carelessness of the conductor that the brakesman was in-
jured, and, in order to show that the company was responsible for
this, it is averred that they were in fault in knowingly or negligently
ploying a careless conductor. The first count avers the duty of the
* Statement condensed and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 657
company to have a careful and skillful conductor, and that this one
was not so and they knew it. The third, fourth, and fifth counts aver,
that the company might by proper care have known the conductor's
character for care and skill, and that the plaintiff did not know it.
The question of character thus became an important one, and we
are constrained to say that it was tried on improper evidence. Char-
acter for care, skill, and truth of witnesses, parties or others, must all
alike be proved by evidence of general reputation, and not of special
acts. The reasons for this have been so often given, that we need not
repeat them. 1 Greenl. Ev. §,§ 461-469; Elliott v. Boyles, 31 Pa. 67.
Character grows out of special acts, but is not proved by them. In-
deed, special acts do very often indicate frailties or vices that are alto-
gether contrary to the character actually established. And sometimes
the very frailties that may be proved against a man, may have been re-
garded by him in so serious a light, as to have produced great im-
provement of character. Besides this, ordinary care implies occasional
acts of carelessness, for all men are fallible in this respect, and the
law demands only the ordinary.
In the case of Ryan v. C. V. Railroad Co., 23 Pa. 384, we decided,
that where several persons are employed as workmen in the same gen-
eral service, and one of them is injured through the carelessness of
another, the employer is not responsible. Many cases were there cited
in support of this principle, and many more might be added now. 10
Mees. & W. 109, 5 Com. B. R. 599, 616; 9 Exch. 223; 11 Id. 832;
16 Queen's B. R. 326; King v. Boston & Worcester R. Corp., 9 Cush.
(Mass.) 112; Gillshannon v. Stony Brook R. Corp., 10 Cush. (Mass.)
228; 3 Ellis & B. 402; 3 McQueen, 266, 300; 3 Hurlst. & N. 648;
Smith's Master and Servant (Eng. Ed. 1860) 133, 146; Carle v. Ban-
gor & Piscataquis Canal & R. R. Co., 43 Me. 268; Noyes v. Smith,
28 Vt. 59, 65 Am. Dec. 222; Russell v. Hudson R. R. Co., 17 N. Y.
134, 153 ; Whaalan v. Mad River & Lake Erie R. Co., 8 Ohio St. 249.
We need not reconsider this question in its general aspect.
This rule was not disregarded on the trial, but if the company em-
ploy a conductor known by them to be unfit for the business, this new
fact changes the question to be solved, and the court below charged,
that in such a case the company are chargeable with the consequences
of the carelessness of the conductor. This instruction seems to us cor-
rect, and is supported by many decisions cited by the plaintiff's coun-
sel, to which may be added Railroad Co. v. Barber, 5 Ohio St. 541,
67 Am. Dec. 312. * * *
Judgment reversed. 6
'- Accord: Rosenstiel v. Pittsburg Rys. Co., 230 Pa. 273, 79 Atl. 556, 33 L.
R. A. (N. S.) 751 (1911), annotated.
Compare Consolidated Coal Co. of St. Louis v. Seniger, 179 111. 370, 53 N.
E. 733 (1S99), to the effect that repeated acts of negligence may be proved
to establish incompetency.
Hint.Ev. — ±2
658 HEARSAY (Ch. 3
PARK v. NEW YORK CENT. & H. R. R. CO.
(Court of Appeals of New York, 1S98. 155 N. Y. 215, 49 N. E. G74, G3 Am.
St. Rep. 663.)
Haight, J. 6 This action was brought by the plaintiff, who was an
engineer in the employ of the defendant, to recover for injuries sus-
tained by reason of a collision with a freight train, caused by the neg-
ligence of one Brown, a brakeman in the employ of the defend-
ant. * * *
Inasmuch as the plaintiff and Brown were co-servants, this action
could not be maintained without showing that Brown was an incompe-
tent man, unfit for the service in which he was engaged, and that such
incompetency was known, or should have been known, by the officers
of the defendant. * * *
The plaintiff, in order to establish his cause of action, gave consider-
able evidence with reference to the general reputation of Brown for
carelessness, which was taken under the objection and exception of
the defendant, which we -shall not consider in detail. The character
of this evidence has recently been under consideration in this court
in the case of Youngs v. Railroad Co., 154 N. Y. 764, 49 N. E. 1106.
Inasmuch as there was no opinion written in that case, we will briefly
allude to the facts and the question decided. In that case, as in this,
it became necessary to show that an employe was incompetent. This
the plaintiff sought to do by showing his general reputation for care-
lessness from the speech of people. It was objected to by the defend-
ant. The objection was sustained, and an exception was taken by the
plaintiff. The court then stated to the plaintiff's attorney: "I will
allow you to show any specific acts of negligence on the part of the
engineer while engaged in the business of engineering, and I will allow
you to show that those acts of carelessness were generally known in
the community, and that the defendant had actual knowledge of such
specific acts, or that they were so general that, upon proper inquiry,
the defendant ought to have known." A nonsuit was granted, and
the same was affirmed in the general term of this court.
We are aware that in some states the courts have permitted incom-
petency of servants to be shown by general reputation, but we have
never gone to that extent in this state. It appears to us that the safer
and better rule is to require incompetency to be shown by the specific
acts of the servant, and then that the master knew or ought to have
known of such incompetency. The latter may be shown by evidence
tending to establish that such incompetency was generally known 7
'• Part of opinion is omit led.
TMcBride, J., in Benolsl v. Darby, L2 .Mo. 196 (ISIS): "• * * We eon-
cur in tin' correctness of the exception Laid down by the supreme court of
Louisiana in the '-use or Brander v. Feraday, L6 La. 296 [1840], and recog-
nized as law by Mr. Greenleai in liis treatise on evidence, vol. l, page L68,
and which we think embraces the questions under consideration. The court
Sec. 2) RECOGNIZED EXCEPTIONS 659
in the community. Marrinan v. Railroad Co., 13 App. Div. 439, 43 N.
Y. Supp. 606; Baulec v. Railroad Co., 59 N. Y. 356, 17 Am. Rep.
325; Monahan v. City of Worcester, 150 Mass. 439, 23 N. E. 22S, 15
Am. St. Rep. 226; Gilman v. Railroad Co., 13 Allen (Mass.) 433, 90
Am. Dec. 210; Davis v. Railroad Co., 20 Mich. 105, 4 Am. Rep. 364.
One Dean was sworn as a witness for the plaintiff, and testified that
he knew Brown when he worked for the defendant at Schenectady.
He testified that he had never heard his mental characteristics talked
about, and knew nothing of his mental reputation, but stated that
he had heard of a handle to his name, — a nickname. He was then
asked to give his nickname. This was objected to. The objection
was overruled and exception taken, and the witness answered that he
w'as called "Crazy Brown." This was 8 or 10 years before, and he
had not heard him spoken -of before this accident within the last 10
years. We think that this evidence was prejudicial and incompetent,
and, without considering the other numerous exceptions in the case,
that a new trial should be granted.
The judgment should therefore be reversed, and a new trial granted,
with costs to abide the event. All concur, except Gray, J., absent,
and Martin, J., not sitting. Judgment reversed.
DOE dem. FLEMING v. FLEMING.
(Court of Common Pleas, 1827. 4 Bing. 2G6.)
The lessor of the plaintiff claimed the premises sought to be recov-
ered in this ejectment as heir at law to his brother, the person last
seised.
His father was still alive, and the only evidence of the lessor of the
plaintiff's having been born in lawful wedlock was the reputation of
his parents having lived together as husband and wife.
A verdict having been found for the plaintiff at the trial before Best,
C. J., Middlesex sittings after last term.
Wilde, Serjt., moved for a new trial, on the ground that though
reputation was evidence of marriage in ordinary cases, yet where the
plaintiff was to recover as heir at law, where his being such was
the sole question to be tried, and his father was still alive, direct evi-
dence of the marriage ought to have been furnished.
say that 'where particular knowledge of a fact is sought to be brought home
to a party, evidence of the general reputation and belief of the existence of
that fact among his neighbors is admissible to the jury as tending to show
that he also had knowledge as well as they.' It is next to impossibility in
very many cases to fix a positive knowledge of a fact upon an individual, not-
withstanding the interest he may have in being correctly Informed, and
doubtless is informed thereof, and we cannot see the injustice of permitting
a party to raise a presumption of knowledge in such a case by showing that
the community are informed on the subject, and hence the party interested
may also have similar knowledge."
'360 HEARSAY (Ch. 3
Park, J. The general rule is, that reputation is sufficient evidence
of marriage, and a party who seeks to impugn a principle so well es-
tablished, ought, at least, to furnish cases in support of his position;
as we have heard none, I see no reason for disturbing the verdict.
Best, C. J. The rule has never been doubted. It appeared on the
trial that the mother of the lessor of the plaintiff was received into
society as a respectable woman, and under such circumstances improper
conduct ought not to be presumed.
Rule refused. 8
RINGHOUSE v. KEEVER.
(Supreme Court of Illinois, 1S69. 49 111. 470.)
Mr. Justice Lawrence 9 delivered the opinion of the Court.
This was an action in ejectment, brought by Maria Keever, claiming
as widow and heir of her former husband, Henry Hardie. It is ob-
jected, that the proof of the death was not sufficient. The ordinary
rule is, that it is general reputation among the kindred only of a de-
ceased person, that is admissible in proof of death, but that rule has
been sometimes relaxed, as in Scott's lessee v. Ratliffe, 5 Pet. 81, 8
L. Ed. 54. Where, as in the present case, the deceased left no kin-
dred that are known, the rule must be relaxed from necessity.
In this case, the depositions of two witnesses were taken, who lived
in New Orleans, and who were present at the marriage of Hardie in
that city, in 1845. They testify that he had but one child, who died,
and that he, also, died of cholera in 1849. His death was announced in
the newspapers, and he was spoken of by his acquaintances as dead.
His widow subsequently married her present husband.
The instruction given for the plaintiff is not sufficiently qualified as
a rule of universal application, but in this case it worked no prejudice,
as the evidence was competent and sufficient. In a population as un-
stable as ours, and comprising so many persons whose kindred are in
distant lands, the refusal of all evidence of reputation in regard to
death, unless the reputation came from family relatives, would some-
times render the proof of death impossible, though there might exist
no doubt of the fact, and thus defeat the ends of justice. * * *
Judgment reversed (on other grounds). 10
s See same rule approved In Birt v. Barlow, 1 Don?. 171 (1779); Travers
v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 8G5 (190G).
« f'art of opinion omitted.
io Welch v. New York, N. H. & H. Ry. Co., 182 Mass. 84, 64 N. E. 69S
(1902), death of a witness proved by reputation brought home to the family.
The limitation to family repute appears to be derived from the rule in cases
of pedigree.
SCC. 2) RECOGNIZED EXCEPTIONS 661
VIII. Entries and Statements in Matters of Pedigree
DOE ex dem. FUTTER v. RANDALL.
(Court of Common Pleas, 1828. 2 Moore & Payne, 20.)
This was an action of ejectment. At the trial, before Lord Chief
Baron Alexander, at the last Summer Assizes at Norwich, the lessor
of the plaintiff claimed as cousin and heir-at-law of one John Futter,
who was seised, and in possession, of the premises sought to be re-
covered by this action, and who died so seised in 1769. It appeared,
by the plaintiff's pedigree that John Futter the ancestor left a son
James, who had issue a son James, whose eldest son was Samuel, un-
der whom the lessor of the plaintiff claimed. The defendant was in
possession under the person last seised, who claimed under Richard,
the brother of John Futter.
For the lessor of the plaintiff, a witness stated, that he remembered
John Futter, who was a wholesale tailor; that he left a widow, who
married a person named Edwards, twenty-eight days after her first
husband's death ; that she died twenty-eight years since ; and that he,
Edwards, was buried about fifty-eight years ago. Another witness
(James Chapman), aged eighty-two, son of Ann Futter by Chapman,
said, that he had heard his uncle James talk of the father of John;
that he knew John, but did not know where he lived ; that his uncle
James lived at St. Faith's, and that he had heard him speak of a cousin,
but did not recollect his christian or sirname, nor where he lived ;
that he had heard James Futter, his uncle, say that James Futter of
Vintry was the cousin of John, who had the estate at Cawston ; that
James Futter of Cawston was the son of witness's uncle; that James
of Vintry had two sons, Samuel and James ; that Samuel had been
dead some time, but that witness did not know what children he had.
A third witness (Elizabeth Cooper) said, that she knew Mrs. Edwards ;
that her first husband was John Futter ; that she said that James Fut-
ter was to have the estate; that John, her husband, used to say, that
the estate would go to James Futter, and after his death, to his heir :
that Mrs. Edwards also said, that her first husband told her on his
death-bed that the estate would go into the family of the Futters,
and that it was Futter of Vintry who was to succeed. Two other wit-
nesses swore that they knew James Futter of Vintry, and had often
heard him say that he was cousin to John Futter of Cawston, the
wholesale tailor, who had the estate; and that after the decease of
Mrs. Edwards, the estate would come to him ; that James of Vintry
left two sons, Samuel and James ; that Samuel was the eldest, and
died, leaving a son named Samuel, who was married. The jury found
a verdict for the plaintiff.
Lord Chief Justice Best. This is an application for a new trial,
and we are bound to suppose that every objection and observation as
GC2 HEARSAY (Ch. 3
to .the admissibility or effect of the evidence tendered for the plain-
tiff at the former trial was made by the counsel for the defendant,
and attended to by the Judge, and that the whole of the plaintiff's evi-
dence was left to the jury, and it appears to me that they have drawn
a right conclusion. They were satisfied that the family of the Fut-
ters, under whom both parties claimed, was one and the same family,
and the plaintiff was entitled to show that James was a member of that
family. If not, it is quite clear that the declarations now objected to
could not have been received in evidence. They were admitted, not for
the mere purpose of showing that he was connected with the family,
but that he was a member of it. If, however, there were no other evi-
dence than the declarations of John, to show that James was a mem-
ber of the family, they could not have been received, as that would be
carrying the rule as to the admissibility of hearsay evidence further
than has been ever yet done, viz. to allow a party to claim an alli-
ance with a family by the bare assertion X1 of it. But it appears to
me that there was other satisfactory evidence in this case to show that
James of Vintry, was a member of the Futter Family; and there
was no evidence to show that there were two families of that name ;
and, even in the defendant's pedigree, the name of James Futter is
introduced as being descended from John. Laying that aside, however,
it is necessary to look at the testimony of Mrs. Cooper : she said that
she knew Mrs. Edwards, whose first husband was John Futter, un-
der whom lessor of the plaintiff claimed ; that she (Mrs. Edwards)
said that James Futter was to have the estate, and that John Futter,
her husband, used to say that the estate would go to James Futter,
and, after his death, to his heir. That was evidence to show that
James was a relation ; and, putting out of the question what John
said as to the estate descending to the heir of James, still his decla-
rations, as to the latter being related to the family were admissible
and properly received. So, the witness Chapman, although he was
eighty-two years of age, might have had his recollection called to
certain facts with respect to James Futter; for a person at an ad-
vanced age frequently remembers circumstances which passed in his
early days, although he may have but a faint or imperfect recollec-
tion of more recent occurrences. He said that James Futter of Caws-
ton was a relation of the family, viz. the son of his, the witness's,
uncle. It must be admitted, after the case of Vowles v. Young, that
the declarations of a party connected by marriage are receivable in
evidence. Consanguinity or affinity by blood, therefore, is not nec-
essary, and for this obvious reason, that a party by marriage is more
likely to be informed of the state of the family of which lie is he-
roine a member, than a relation who is only distantly connected by
blood; as, by frequent conversation, the former may hear the par-
» See !»<"■ <i<'iu. Jenkins v. Davles, to Adol. & El. (N. S.) :;l'1 (1847), ante,
p. 111.
Sec. 2) RECOGNIZED EXCEPTIONS 6G3
ticulars and characters of branches of the family long since dead: and,
if such a party, on cross-examination, were questioned as to the decla-
rations made by a person deceased, although he did not hear them
himself, it would be sufficient for him to state that he had heard his
relations say that the deceased declared who and what his cousins or
other relatives were. Although hearsay evidence is only admissible on
questions of pedigree or prescription, yet it is absolutely necessary
in such cases, as the facts cannot be proved by living witnesses in the
ordinary manner. Still, the declarations of deceased parties must be
taken with all their imperfections ; and, if they appear to have been
made honestly and fairly, they are receivable. If, however, they are
made post litem motam, they are not admissible, as the party making
them must be presumed to have an interest, and not to have expressed
an unprejudiced or unbiased opinion. Here, however, I am of opin-
ion, that the testimony of Mrs. Cooper, as to the declarations made by
John Futter, the first husband of Mrs. Edwards, that James Futter was
to have the estate, was admissible to show his relationship to the fam-
ily, and lets in the account given of that person by Chapman, one of
the other witnesses. Considering, therefore, that this evidence was
admissible, and coupling it with the other testimony in the cause, I
am of opinion that the plaintiff's pedigree was satisfactorily proved,
and, consequently, that the jury were fully warranted in finding a ver-
dict for him.
Mr. Justice Burrough. It does not appear, from the report, that
any objection was taken to the competency of either of the witnesses
tendered for the plaintiff. I was one of the counsel in the case of
Vowles v. Young, which appears to me to be in point. There, one
Thomas Roberts said, that he had heard Samuel Noble, the husband
of Mary Noble, say that she was illegitimate ; and it was held, that
the declarations of Noble were admissible; and the Lord Chancellor
(Erskine) said, 13 Ves. 144: "Upon questions of pedigree, inscrip-
tions upon tomb-stones, and engravings upon rings are admitted." Id.
147. "The law resorts to hearsay of relations, upon the principle of
interest in the person from whom the descent is to be made out; and
it is not necessary that evidence of consanguinity should have the
correctness required as to other facts. If a person says, another is
his relation or next of kin, it is not necessary to state how the con-
sanguinity exists. It is sufficient that he says A. is his relation, with-
out stating the particular degree; which, perhaps, he could not tell, if
asked. But it is evidence, from the interest of that person in knowing
the connexions of the family." As, therefore, in this case, the dec-
larations of John Futter, that James was to have the estate, were cor-
roborated and confirmed by the testimony of Chapman, I am of opin-
ion, that there is no ground to disturb this verdict.
Mr. Justice GasELEK. I was at first inclined to think that the ob-
jections raised by my Brother Wilde were well founded; but in Doe d.
064 HEARSAY (Ch. 3
Northey v. Harvey, 1 Ry. & Mood. 297, the declarations of the late
husband of one of the family were held to be admissible in order to
prove a pedigree, although 'he was not otherwise related to the family ;
Mr. Justice Littledale thinking, that, for the purpose for which the
declarations by the husband were offered, he must be considered as
one of the family. That case appears to me to be in point to show
that no improper evidence was received at the trial of this cause, and
that the Jury were warranted in finding a verdict for the plaintiff.
This rule, therefore must be —
Discharged.
JOHNSON v. LAWSON et al.
(Court of Common Pleas, 1S24. 2 Bing. S6.)
This cause was tried at the Kent Summer assizes, 1823, before Gra-
ham, B.
The question for the jury was, whether one Francis Lidgbird (whose
claim the plaintiff supported) or Henry Wilding (whose claim the de-
fendant supported) was heir at law to Henry Lidgbird, who died seised
of certain lands in October, 1820, and was the son of John Lidgbird,
formerly sheriff of Kent.
In consequence of a separation having taken place between John
the sheriff and his wife, their son Henry was brought up, from about
the age of nine months, with Miss Weller, afterwards Mrs. Hollin-
worth, till he went to college, and he spent his vacations at Mrs. Hol-
linworth's house : John Lidgbird, the sheriff, was on the point of mar-
riage with Mrs. Hollinworth (which was prevented by his son Henry,)
and after the death of John, Henry lived with Mrs. Hollinworth for
twenty-three or twenty-four years, and she was the only person in his
confidence ; this was proved by Mrs. Lucretia Pakenham, niece of Mrs.
Hollinworth, who had died before the trial.
On the part of the plaintiff it was proposed, among other evidence, to
give evidence of declarations made by Mrs. Hollinworth, as to Francis
Lidgbird being the heir of Henry, who died seised ; but the learned
judge refused to receive such evidence.
It was then proved by Mrs. Elizabeth Withers, that a Mrs. King
had been Henry Lidgbird's housekeeper for twenty-four years, and it
was proposed to give evidence of declarations by Mrs. King, who was
no longer living, as to Francis Lidgbird being the heir to Henry, but
this was objected to by defendant's counsel: and Mr. Baron Graham
rejected it, saying "that it seemed to him to be carrying the principle of
hearsay evidence too far; De Grey, C. J., having laid it down, that it
must be confined to persons who are members of the family."
Another witness, Mrs. Sophia Ridley, was also called, to give similar
proof of declarations by Mrs. Hollinworth and Mrs. King, but was
also rejected.
Sec. 2) RECOGNIZED EXCEPTIONS 665
A verdict having been found for the defendants, Peake, Serjt., ob-
tained a rule nisi for a new trial, against which Taddy, Serjt., was to
have shown cause; but the court called on Peake to support his rule. 1 -
Best, C. J. This is a question of great importance, and if I felt
any doubt I should desire another argument; but, as it is dangerous to
express doubt where none is entertained, I shall at once pronounce my
opinion. As a general rule, hearsay is not admissible evidence, but to
this general rule pedigree-causes form an exception, from the very
nature of the case. Facts must be spoken of which took place many
years before the trial, and of these, traditional evidence is often, the
only evidence which can be obtained, 13 but evidence of that kind must
be subject to limitation, otherwise it would be a source of great uncer-
tainty, and the limitation hitherto pursued, namely, the confining such
evidence to the declarations of relations of the family affords a rule at
once certain and intelligible. If the admissibility of such evidence were
not so restrained, we should, on every occasion, before the testimony
could be admitted, have to enter upon a long inquiry as to the degree
of intimacy or confidence that subsisted between the party and the de-
ceased declarant. In Beer v. Ward, Lord Chief Justice Abbott seems
to have doubted at first, influenced perhaps by a recollection of the dicta
in the Chancery cases, yet he afterwards acceded to the authority of the
decisions which have confined the declarations admissible to those of
i 2 Statement abridged and opinion of Park, J., omitted.
13 Bartol, J., in Craufurd v. Blackburn, 17 Md. 49, 77 Am. Dec. 323 (1861):
"By the ordinary rules of evidence, the declarations of persons, not parties
to the cause, are excluded on the ground that they are mere hearsay. But
it is a well recognized exception to this rule that, in matters of pedigree the
declarations of deceased members of the family are admitted. Cope's Adm'r
v. Pearce, 7 Gill, 247 [1848] ; [Charlotte Hall School v. Greenwell] 4 G. & J.
416 [1S32]. 'The term "pedigree" embraces not only descent and relation-
ship, but also the facts of birth, marriage and death, and the time when these
events happen.' 7 Gill, 264. This exception to the general rule had its origin
in the necessity of the case. 'From the necessity of the thing,' said Lord
Mansfield, [Berkeley Peerage Case] 4 Camp. 415 [1811], 'the hearsay of the
family as to marriage, births, and the like, are admitted;' this language is
cited in 7 Gill, 264. But it is objected, that although such declarations to
prove pedigree are ordinarily admissible, yet they ought to have been ex-
cluded in this case, because the necessity did not exist, there being a party
to the alleged marriage, living and competent to testify, and because it was
inadmissible upon the principle, that the best evidence of which the nature
of the thing is capable must be given. This objection arises from a misappre-
hension of the rule. Such declarations are not held to be admissible or in-
admissible according to the necessity of the particular case ; but they are ad-
mitted as primary evidence on such subjects by the established rule of law,
which, though said to have had its origin in necessity, is universal in its ap-
plication. Nor do such declarations stand upon the footing of secondary
evidence, to be excluded where a witness can be had who speaks upon the
subject from his own knowledge. 'Hearsay evidence is, of course, inadmi>
sible, if the person making the declaration is alive, and can be called. Bu;
the declarations of a deceased mother, as to the time of the birth of her son.
are admissible, though the father is living and not called.' Hubback on the
Evidence of Succession, 660, (4S Law Lib.)"
And so in Jarchow v. Grosse, 257 111. 36, 100 N. E. 290, Ann. Cas. 1914A.
820 (1912).
666 hearsay (Ch. 3
deceased relations : it is true, he admitted the declarations of the serv-
ants, but this was subject to further discussion, and to avoid the possi-
bility of incurring further expense. If we look into the cases, we shall
find that the rule has always been confined to the declarations of kin-
dred. In Goodright d. Stephens v. Moss [Cowper, 592], no one can
read the judgment of Lord Mansfield, and say that the admissibility of
such declarations is to depend upon the degree of intimacy in the party
making them. Lord Mansfield says, "An entry in a father's family bi-
ble, an inscription on a tombstone, are good evidence. So the declara-
tions of parents in their lifetime." Aston, J., says, "rejecting the gener-
al declarations of the father and mother was wrong." It is clear, that
neither of these judges supposed the practice to extend beyond admit-
ting: the declarations of members of the family. As to the two cases in
Chancery, the question in the first was, whether the declarations of a
man who had married into a family were admissible. Now, such a
question would never have been discussed if there had been any such
practice as receiving the declarations of ordinary acquaintances; and
though the expressions of the chancellor may seem to go beyond, he
decided only on the ground that the declarations of a husband might
be received. The evidence there, indeed, might perhaps have been re-
jected on other grounds, inasmuch as the witness had a strong bias in
favour of the legitimacy he was called on to establish. In the second
case Lord Eldon only says, "I accede to the doctrine of Lord Mansfield
as it has been stated from Cowper, but it must be understood as it has
been practised and acted upon."
What then has been the practice? to limit the admissibility to decla-
rations of members of the family. It is true, a different opinion was
expressed by a most learned judge in Rex v. Eriswell [3 Term R. 719 ] .
But that judge must have been misled into the opinion by the manu-
script case which has been cited ; that case, however, must be unten-
able at all events, because, though declarations of members of tbe
family may be received, it is impossible to say, that in any shape decla-
rations of acquaintances, as to declarations of members of the family
can ever be admissible. But it does not appear that any objection was
made at the time; and that circumstance at once disposes of the au-
thority of the case. As to the Nisi Pruis case at Lancaster, I wish
such cases were never cited. It is not right to repeat opinions hastily
formed and delivered in the hurry of trial, and the practice of re-
ferring to them has occasioned all the confusion that the enemies of
our law object to. That decision probably conduced to mislead Mr.
Justice Buller, for in his own statement of the case of the Duke of
Athol v. Lord Ashburnham, Bull N. P. 295, he speaks only of the decla-
rations of a brother or other near relation: it is not wonderful that
Lord K'euyon should speak with some hesitation on the point, after Mr.
Justice Buller had spoken so decidedly. The practice of receiving dec-
larations in evidence is an exception from our general rules ; it has been
rried as far as it can with safety, and we must not extend it farther.
Sec. 2) RECOGNIZED EXCEPTIONS 667
Burrough, J. I was engaged in the case of Vovvles v. Young (13
Ves. 146) and wc objected to the declarations of the husband, that they
were made after the death of his wife, when he was no longer connect-
ed with her family; but they were received, on the ground that his
knowledge must have been acquired while he was yet connected. This
exception from the general rule, that hearsay shall not be admitted,
must be construed strictly, and the natural limits of it are- the decla-
rations of members of the family. If we go beyond, where are we to
stop? Is the declaration of a groom to be admitted? of a steward? of
a chambermaid? of a nurse? may it be admitted if made a week after
they have joined the family? and if not, at what time after? We
should have to try in every case the life and habits of the party who
made the declaration, and on account of this uncertainty such evidence
must be excluded. The argument for the defendant rests on here and
there a loose expression from a judge, and on the circumstance that
there is no case in which such evidence is reported to have been exclud-
ed ; but before we can admit it, we must be referred to some case to
warrant its admission. We have heard of no such case, and therefore
the present rule must be
Discharged.
INHABITANTS OF NORTH BROOKFIELD v. INHABITANTS
OF WARREN.
(Supreme Judicial Court of Massachusetts, 18G0. 16 Gray, 171.)
Action of contract for the support of William M. Chickering, a
pauper.
At the trial in the superior court before Lord, J., the plaintiffs in-
troduced evidence tending to show that Harvey Chickering, the pau-
per's father, was the legitimate son of Nathaniel Chickering and Ruth
Richardson, (who, as was agreed, were married in Connecticut on the
22d of February, 1804,) and that Nathaniel 'gained a settlement in the
defendant town under the St. of 1793.
The defendants, to prove that Harvey was born before the marriage
of his parents, and was therefore illegitimate, called a witness who tes-
tified that, in the fall of 1803, in company with her aunt, Mrs. Blair,
she made a visit to a relation who lived near the house in which Ruth
Richardson was then living, and while there saw Harvey Chickering,
then an infant two or three weeks old ; that she remembered the date
from the fact that Mrs. Blair's only daughter, named Susanna, was with
them and was about a year old, and that this daughter was born in
September, 1802, and died on the 12th of December, 1803 ; and that
she had been kept in remembrance of the date of Susanna's death by
constant intercourse with her family since and by frequent reference
to the family record. The Blair family was not related to the Richard-
son or the Chickering family.
G68 HEARSAY (Ch. 3
The defendants then offered, as evidence that Susanna died on the
12th of December, 1803, a large ornamented sheet of parchment, bear-
ing the inscription "family record," on which were entered the dates of
the birth and marriage of Susanna Blair's parents, the dates of the
birth and death of Susanna, and of the birth, marriage and death of
two sons born subsequently of the same parents. One of these sons,
forty-seven years old, testified that, ever since his earliest recollection,
his father had kept this parchment framed and hanging in a conspicu-
ous place in his dwelling-house, and had handed it down to him ; that
during all this time the same entries had been on it; and that his father
and mother were dead. And there was evidence that the entries of
the births and deaths upon the parchment were made, all at one time,
by direction of Susanna's father, more than forty years before the
trial ; that the record of the marriages of his children had been added,
from time to time, as they occurred ; and that he and his son kept and
exhibited the parchment as a true statement of the events recorded on
on it.
The defendants also offered to prove that an ancient gravestone in
the burial-ground of the Blair family bore the name Susanna, and had
inscribed on it December 12, 1803, as the date of her death.
The evidence offered by the defendants was excluded; the jury
returned a verdict for the plaintiffs, and the defendants alleged excep-
tions.
Bigelow, C. J. At the trial of this case, the date of the birth of
the father of the pauper, Harvey Chickering, became a material fact,
because the legal settlement in controversy depended on the question
whether the father was born prior to the marriage of his parents,
which took place on the 22d of February 1804. To prove the illegit-
imacy of Harvey Chickering, the defendants introduced a witness who
testified that she saw him, then an infant, during the life time of Su-
sanna E. Blair. It then became important to establish the date of Su-
sanna's death, because if she died before the date of the marriage of
the parents of Harvey Chickering, it would follow that he must have
been born out of wedlock.
It was a case therefore where the proof of a fact material to the is-
sue depended on the existence of another collateral fact. The factum
probandum might well be inferred from satisfactory evidence that an
event, otherwise immaterial, took place at a particular time. Such
testimony is not only competent, but without it it would often be im-
possible to prove essential facts in a court of justice. Direct and posi-
tive proof cannot always be obtained, and in matters especially which
relate to remote periods it is necessary to resort to circumstantial evi-
dence and presumption to supply the place of that testimony which is
lost by the lapse of time and the imperfection of human memory.
Such evidence in the strict legal sense is not collateral. It raises, it
is true, a new and distinct inquiry; but if it affords a reasonable pre-
sumption or inference as to the principal fact or matter in issue, it is
Sec. 2) RECOGNIZED EXCEPTIONS 6G9
relevant and material and does not tend to distract or mislead the jury
from the real point in controversy.
The objection more strenuously urged to the evidence offered at
the trial is to the nature and quality of the proof by which the defend-
ants sought to establish the date of Susanna Blair's death. It is not
denied that this evidence would have been competent, if it had been in-
troduced to prove a fact directly in issue, such, for instance, as the
date of the pauper's birth ; but it is contended that it was inadmissible
to establish a fact collateral in its nature, from which the main fact in
issue was to be deduced by inference. But we know of no such dis-
tinction in the rules of evidence. The competency of proof cannot be
made to depend on the inference or conclusion which is sought to be
drawn from it. If it is competent to prove a particular fact in con-
troversy when it is directly in issue, it is equally competent when the
same fact is to be established in order to form the ground of an in-
ference or presumption from which the material subject of inquiry
can be deduced. The true test is, to inquire whether the evidence is
admissible to prove the fact which it is offered to establish, and not
whether such fact is directly or only collaterally in issue.
In the present case, the defendants sought to prove the date of the
death of Susanna Blair by a document or chart containing a record of
the births, marriages, and deaths kept in her family for a long series
of years, and handed down by her deceased parent to his sons as con-
taining a true statement of the events therein recorded; and also by
proof of the inscription on the tombstone erected to her memory in
the family burial-ground. Such evidence is deemed to be competent
and satisfactory proof of family descent, and also of the dates of the
leading events in family history, such as births, marriages and deaths,
especially when they relate to ancient occurrences. They are con-
temporaneous with the events which they record ; they are made by
parties who are cognizant of the facts, and who would have no inter-
est or motive in misstating them ; and they are in their nature public,
openly exhibited, and well known to the family, and therefore may be
presumed to possess that authenticity which is derived from the tacit
and common assent of those interested in the facts which they record.
Some of the authorities seem to limit the competency of this species
of proof to cases where the main subject of inquiry relates to pedigree,
and where the incidents of birth, marriage and death, and the times
when these events happened, are directly put in issue. But upon prin-
ciple we can see no reason for such a limitation. If this evidence is
admissible to prove such facts at all, it is equally so in all cases when-
ever they become legitimate subjects of judicial inquiry and investi-
gation.
We are therefore of opinion that the rejection of the proof offered
at the trial to establish the date of the death of a person who deceased
more than fifty years previously was erroneous. 1 Greenl. Ev. §§ 103,
C70 HEARSAY (Cll. 3
104; Berkeley Peerage Case, 4 Campb. 401; Monkton v. x\ttorney
General, 2 Russ. & Myl. 162; Jackson v. Cooley, 8 Johns. (N. Y.) 131.
Exceptions sustained. 14
PLANT et al. v. TAYLOR et al.
(Court of the Exchequer, 1861. 7 Hurl. & X. 211.)
Chaxnell, B. 15 This was an action of ejectment, tried before my
Brother Byles, at the Cheshire Spring Assizes, of last year. It was
brought to recover certain premises at Cranage, in the county of
Chester. Both the plaintiffs and defendants claimed under a settle-
ment made by one Richard Taylor (whom we will call "the settlor"),
the plaintiffs claiming as tenants in common in fee, by virtue of an
appointment made by one Elizabeth Taylor, entitled in default of law-
ful children of Thomas Taylor, the elder, the son and heir of the
settlor: the real defendants (who were admitted to defend as land-
lords) claiming as tenants in common in fee, either as entitled by an
appointment made by him under the settlement, or as his heirs in
default of appointment ; and likewise claiming the benefit of an al-
leged outstanding term, created long anterior to the settlement, and
to the history of which it is necessary to draw attention. * * *
Supposing the defendants to be the lawful children of Thomas Tay-
lor, the elder, it is admitted that the plaintiffs would not be entitled, and
that the defendants would not require the benefit of this term. On
the other hand, supposing the defendants not to be the lawful chil-
dren of Thomas Taylor, the elder, they would not be entitled, either
under the appointment made by him or under the settlement in de-
fault of appointment ; for the settlement only gave the power and
made the limitation expressly in favour of lawful children. At the
trial it was denied that they were his lawful children, by reason that
I* Holmes, J., in Com. v. Stevenson, 142 Mass. 466, 8 N. E. 341 (1886):
"We see no sufficient reason why a person should not be allowed to testify
to the date of his birth, if that question is fairly open on the exceptions.
The certificate which is made evidence by the Pub. St. c. 32, § 11, is hearsay,
and no more likely to be accurate than the sworn statement of the party con-
cerned, based, as it must be, on family tradition, and fortified by his knowl-
edge of himself. Hill v. Eldridge, 120 Mass. 234 [18791; Cheever v. Cong-
don, 34 Mich. 296 [1876]; State v. Cain, W. Va. 559, 570 [1876]."
And so in State v. Marshall, 137 Mo. 403, 36 S. W. 619, 39 EL W. 63 (1897).
The general proposition, that the same sort of evidence may be used to
prove a given Tact without regard to whether the latter is ultimate or evi-
dential, is Illustrated by the rule that reputation is admissible to establish
b public boundary, though merely tor the purpose of locating a private bound-
ary, Thomas v. Jenkins, 6 AdoL & Ellis, 525 (1837), ante, p. 110. But in
England it seems to i»- well settled thai the present exception docs not admit,
even family hearsay to prove the mere fact of birth or death, or the time
or place of such event.-:, excepl as involved in a question of pedigree, Bex
v. Erith, 8 East, 539 (1807); Balnes v. Guthrie, 13 Q. B. D. 818 (1884), ex-
cluding a deceased parent's statement of age on a plea of infancy.
statement and part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS G71
previous to his marriage with their mother he had been married to
another woman, one Anne Wickstead, who, it was admitted, lived un-
til 1844.
At the trial the plaintiffs proved their pedigree as heirs of Elizabeth
Taylor, who would be entitled. in default of lawful children of Thomas,
and their title was not disputed in such event. On the other hand, on
the part of the defendants, it was proposed to prove declarations 1C
by Thomas Taylor to disprove his first marriage, which were objected
to and rejected. The learned Judge was not asked to put the ques-
tion of legitimacy to the jury, nor to determine it as a question on
which the admissibility of the evidence might depend. * * *
It becomes necessary, then, to dispose of the cross rule for a new
trial.
In the course of the argument we expressed a strong opinion that
the evidence rejected by the learned Judge was rightly rejected. As
we have stated more than once, the sole question of fact in dispute at
the trial was the legitimacy of the defendant Taylor and the female
defendants. This depended on the validity of the marriage of the
persons who were de facto their father and mother.
The fact of the marriage of the father, Thomas Taylor, with Anne
Wickstead before his marriage with the mother of the defendant Tay-
lor, and that Anne Wickstead was at that time living, was proved.
The defendant, Taylor, was called as a witness to prove declara-
tions by his father respecting his first marriage. Before a declaration
can be admitted in evidence the relationship of the declarant de jure,
by blood or marriage, must be established by some proof, independent
of the declaration itself. See the cases cited in Taylor on Evidence,
vol. 1, p. 526, note 4.
Slight evidence, no doubt, would be sufficient. Here there was no
proof of any relationship de jure between the declarant and the de-
fendant. The proof was the contrary.
Perhaps the learned Judge was right in rejecting the evidence, on
the ground that any declaration made by Thomas Taylor, the father,
on the subject, though not made post litem motam, or after dispute
as regards the property had actually arisen, would be a declaration by
a person whose mind could not be free from bias. It was manifestly
in many ways directly for his interest to make a declaration tending
to disavow his first marriage, or having a tendency to show that it
was an illegal marriage, and consequently did not invalidate the second.
is The nature of the excluded statements is indicated by the following re-
mark by Pollock, C. B., during the course of the argument: "Declarations of
a deceased person are only admissible for the purpose of reputation, not of
proving facts. It may be proved by the declaration of a parent that one of
his children was older than another, but his declaration is not admissible fur
the purpose of proving that his marriage with a second wife, in the lifetime
of the first, was valid, because the first wife was married at the time she
married him. The declarations must be made respecting tacts of a domestic
nature, not such as are cognizable in a court of criminal justice."
(J72 HEARSAY (Ch. 3
No case has been cited in which the declaration of a deceased per-
son, obviously for his interest, has ever been received.
We are of opinion that the rule to enter a verdict for the plaintiffs
must be made absolute, and the rule for a new trial must be discharged.
Rules accordingly. 17
GEE v. WARD.
(Court of Queen's Bench, 1857. 7 El. & Bl. 509.)
Lord Campbell, C. J., 18 in this Term (April 27th), delivered judg-
ment.
This was an action of ejectment tried before my brother Willes at
the Liverpool Assizes. Each party at the trial sought to make out
that he was the heir at law of one Jane Gee, a lunatic, who died in
1854. The plaintiff gave prima facie evidence of his pedigree, accord-
ing to which one John Gee appeared to have been the son of Nathaniel
Gee. According to the defendant's case, John Gee was the son of
Newman Gee : and in support of his case he offered in evidence the
deposition of Martha Shallcross, a deceased member of the family,
made by her in a matter of lunacy in 1806. This was objected to as in-
admissible, on the ground of its having been made post litem motam.
It appeared that a commission of lunacy had been awarded against Jane
Gee in 1806, under which she had been found a lunatic; and, on the
petition of some of her relatives, it had been referred to the Master to
inquire who was or were a proper person or proper persons to be ap-
pointed committee or committees of the lunatic, and also who was the
heir at law and next of kin of the lunatic, to whom the order of refer-
ence directed notice to be given. The relations who had petitioned
exhibited a state of facts, and supported that state of facts by certain
depositions, and, amongst others, that of Martha Shallcross. We must
assume, on the report of the learned Judge, that "no dispute appeared
to have existed upon the subject before the death of Jane Gee in 1854."
The deposition having been received in evidence, and the verdict having
passed for the defendant, a rule for a new trial was obtained, which
has been argued before us, and upon which we have now to give our
opinion.
The question is, whether the deposition received at the trial was ad-
missible as the declaration of a deceased member of the family, in a
case of pedigree. After great deliberation, we think that this deposi-
tion was properly received in evidence, according to the rule by which,
in cases of pedigree, an exception is made to the common doctrine of
it Compare the Berkley Peerage Ca e, I Camp. 401 (1811), where the dec-
..: the reputed father were admitted to prove Legitimacy.
Goodrlghl v. .Moss, Cowper, 591 (1777), whore the statement of
the lath- r and mother were admitted to disprove a claim of Legitimacy,
n Statemenl omit ti d,
Sec. 2) RECOGNIZED EXCEPTIONS 673
hearsay not being evidence, and the declarations of deceased members
of the family, made ante litem motam, are receivable.
The conditions under which such declarations are said to be receiv-
able are, that they have been made by deceased members of the family,
who, as such, are supposed to have had peculiar means of knowledge,
and that they have been made before the arising of a dispute or con-
troversy on the subject-matter in question. Such declarations are not
excluded, if made ante litem motam, even though made by a person
expecting that the interest he is speaking about will ultimately vest in
himself. "If no controversy existed at the time, the principle acted
on is, that such declarations are admissible, though subject to observa-
tion;" per Abbott, C. J., in Doe dem. Tilman v. Tarver, Ry. & M. 141 ;
nor is evidence of this nature excluded, if made ante litem motam, by
its being made for the purpose of proof, or of preventing future dis-
putes, as in the common cases of entries made by fathers of families.
Another rule on the subject is that, to exclude testimony of this na-
ture, the lis or controversy must be on the very point in question;
and declarations are not excluded, by reason of lis mota, if made on
a collateral point to that on which the lis exists. This distinction was
recognised in Freeman v. Phillipps, 4 M. & S. 497 (E. C. L. R. vol.
30), where Bayley, J., says that, if it were necessary to go into the
question of lis mota, he thinks the distinction correct, that when the
declarations are on the very point they are not evidence, but when the
point in controversy is foreign to that which was before controverted,
there never has been a lis (within the rule), and, consequently, the
objection does not apply.
It has, however, been suggested that depositions taken in suits, from
their very nature and purpose, and from the mode of taking them, are
exceptions to the general rule, and are not admissible as declarations
of deceased members of families in matters of pedigree; and the ex-
pressions of some of the Judges in the Berkeley Peerage Case are
cited in proof of such an exception. We think, however, that these
expressions cannot be taken as authority except with reference to the
case, then before the House, of a lis mota on the very point. In that
case it had been thought proper, in the assumed state of facts in the
questions proposed to the Judges, to state distinctly that the fact in
question was disputed by C. D. in the former suit. Therefore the case
cannot be considered as deciding that depositions are in no case to be
received. All the learned Judges who concurred in thinking that the
evidence ought to be rejected, point out the lis mota, dispute or con-
troversy, as excluding the evidence. It is true that Mr. Justice Law-
rence, after showing the evidence to be excluded by lis mota, proceeds
to say that he is likewise of opinion that "no deposition can be re-
ceived in evidence as a declaration, to prove a fact which it was the
object of that deposition to establish." If this means a disputed fact,
Hint.Ev. — 43
674 HEARSAY (Ch. 3
direcdy in issue between the parties, it is clearly correct; but if it
was meant to apply to any fact collateral to the fact in dispute, or as
to which there was no dispute, it is too large a rule of exclusion, and
inconsistent with later authorities. The learned Judge points out that,
besides the general danger arising from there being a lis or dispute
on the very point, there was the additional danger of the deposition
being prepared with the object of proving the particular fact in dis-
pute; but, in the case before the House, the particular fact had been
in dispute in the prior proceeding. The expressions of the learned
Judge, and certainly the decision of the House, therefore ought not
to be taken as establishing the general doctrine that no deposition or
answer on oath is admissible as the declaration of a deceased member
of the family.
In the Banbury Claim of Peerage, 2 Sel. N. P. 755 (10th Ed.), a
bill in Chancery and the depositions were rejected; and it has been
supposed that the Judges in that case intended to say that depositions
in a suit in Chancery could not be received as declarations of the
deceased members of a family under the rule in question. Besides
the remark, however, that the declarations in the prior suit were in
that case probably subject to objection, on the ground of the ver£
point having been in dispute in the earlier suit, it will be found on ex-
amination that the Judges say no more than that the bill and deposi-
tions in question were not evidence either of the facts or as declara-
tions in matters of pedigree, confining themselves very much to the
terms of the question put to them; and they proceed to say that the
statements in the bill and depositions were no evidence that the depo-
nents were relations of the family. Some of the depositions in that case
were mentioned as not being the depositions of members of the family ;
whilst it is stated that some of the deponents stated themselves to be
members of the family; and, there not being the necessary evidence
aliunde of their being members of the family, the Judges were per-
fectly right in saying that the depositions were not evidence as dec-
larations in a matter of pedigree : and they proceed to say, in answer
to a subsequent part of the same question, that the statements in the
depositions are not proof of the deponents being relations of the fam-
ily. The answer appears in effect to be, that neither the bill nor the
depositions in question were evidence ; and that the depositions, pur-
porting to be made by members of the family, were not made evidence
by the deponents stating themselves to be members of the family with-
out proof of that fact aliunde. Accordingly, this case has always been
cited as showing the necessity of proof of the relationship aliunde to
let in cleclarations as the declarations of deceased members of the
family.
This subject is ably treated by Mr. Phillipps in his book upon Evi-
ol. 1, p. 206, 10th Ed., by Phillipps and Arnold): .and, after
amining his authorities, we concur in the rule which he there lays
Sec. 2) RECOGNIZED EXCEPTIONS C75
down. According to this rule the evidence in the present case was ad-
missible; and the verdict for the defendant founded upon it ought not
to be disturbed.
Rule discharged.
CHAMPION et al. v. McCARTHY.
(Supreme Court of Illinois, 1907. 228 111. 87, 81 N. E. 808, 11 L. R. A. [N. S.]
1052, 10 Ann. Cas. 517.)
Farmer, J. 19 * * * The controversy is as to whether the com-
plainant, Henry McCarthy, is an heir of John Earl, deceased, and en-
titled to an interest in the lands of which he died seised. Complain-
ant claimed to be an illegitimate son of Susan Champion, who was
the mother of John Earl. It is admitted that Earl was an illegitimate
son of said Susan Champion, whose maiden name was Ayres. She
originally lived in Elizabeth township, near Brockville, Ontario, Cana-
da. There she was married to Elias Champion in 1830. John Earl was
born to Susan Champion (then Susan Ayres) in 1822, and after hei
marriage to Elias Champion he became a member of his mother's fam-
ily and lived with her up to the time of her death, in 1893, usually be-
ing known by the name of John Champion. In 1849 Elias and Susan
Champion, and several children born to them after their marriage, and
John Earl, moved to Du Page county, 111., where they resided about
one year, and then moved to Ogle county, where they lived until the
parents died. Susan Champion died in 1893, leaving a will, in and by
which she devised to John Earl the real estate in controversy. Com-
plainant claimed to be an illegitimate son of said Susan Champion,
born to her in Canada in 1826, before her marriage to Elias Champion.
This would make him a half-brother to John Earl, and, as such, an
heir 20 entitled to a one-fourth interest in the real estate of which
John Earl died seised. * * *
William Knott testified, for complainant, that John Earl boarded at
his house after his mother's death, and that while boarding at his house
Earl told witness he had a brother by the name of Dan Champion, who
lived out West, a sister named Lydia Cheshire, and a brother in Iowa
by the name of Henry McCarthy ; that his mother had told him Henry
McCarthy was his brother, and he wanted him to have his property.
Eliza Vance testified that John Cheshire, the husband of Lydia
Cheshire, told her (the witness) shortly after the death of his mother-
in-law, Susan Champion, that Henry McCarthy was his wife's brother.
John Cheshire died before this suit was instituted.
Delos W. Baxter testified he was a practicing lawyer and had practic-
ed about 25 years. He had held the offices of state's attorney and state
Senator. He had known Susan Champion from his boyhood, and also
is Part of opinion omitted.
20 Under the provisions of section 2, c. 30. Rev. St. 111. 1905.
H76 HEARSAY (Ch. 3
the members of her family, including John Earl. He had been em-
ployed by Susan Champion in a lawsuit in the early part of his profes-
sional career. He testified that in 1886 Susan Champion came to his
office with William Stocking, who was the conservator of John Earl,
to get him to draw her will ; that in transacting the business she talked
of her family, and said Henry McCarthy, John Earl, Lydia Cheshire,
and Daniel Champion were her children, and also mentioned a child or
children of a deceased daughter. Some time after this talk, the witness
drew the will, and went with Mr. Stocking to the home of Mrs. Cham-
pion to have it executed. On this occasion the witness said Mrs. Cham-
pion again told him Henry McCarthy was her son, but that it was
not generally known in the neighborhood, and for that reason she did
not want his name mentioned in the will. She also said that McCarthy,
Mrs. Cheshire, and Daniel Champion were all well provided for, and
that as John was not bright he needed what she had. The witness fur-
ther testified that, after the death of Mrs. Champion, John Cheshire
and Daniel Champion (who died before this suit was begun) told him
that Henry McCarthy was a half-brother of John Earl, and would
share in the distribution of his estate. The proof also shows some de-
gree of intimacy between Henry McCarthy and Susan Champion and
her family. He was a visitor at the home of Susan Champion a num-
ber of times while she was living, and at the home of Lydia Cheshire
after the death of Susan Champion.
This is the substance, we believe, of the most material testimony re-
lied upon by complainant, Henry McCarthy, which in our opinion was
competent. Appellants insist that this testimony was incompetent. It
is not denied that hearsay evidence, such as declarations of deceased
parents and members of the family, may be proven to establish pedi-
gree ; but it is contended that the rule permitting such proof is limited
to cases of legitimate relationship, and cannot be heard to establish
illegitimacy. While this position is apparently sustained in Flora v.
Anderson (C. C.) 75 Fed. 217, cited and relied on by appellants, that
case is not in harmony with the great weight of authority, as well as
the better reason. That case followed the English case of Crispin v.
Doglioni, 3 Swab. & Tr. 44, which appears to have been based upon the
common-law rule that an illegitimate is filius nullius. This common-
law rule has been abrogated in this and other states by statute (Miller
v. Pennington, 218 111. 220, 75 N. E. 919, 1 L. R. A. [N. S.] 773;
Hales v. Elder, 118 111. 436, 11 N. E. 421); and, where such statutes
have been enacted, Crispin v. Doglioni cannot be regarded as authority
to be followed. The declarations sought to be proved in that case were
those of a deceased brother of the intestate putative father, and the
court held that the putative father had no relationship with a bastard
son, and his declarations, or those of members of his family, were
therefore incompetent.
As to whether declarations of the supposed father and members of
hi= family are competent, there is some conflict in the authorities. In
Sec. 2) RECOGNIZED EXCEPTIONS 677
Elliott on Evidence (volume 1, § 376), it is said: "There is a conflict
as to whether the declarations as to a son's illegitimacy, by a member
of the father's family, should be rejected. The better rule is not to
exclude such testimony in a proper case. There seems to be no dissent
whatever, however, as to the admission^of the declarations, in a proper
case, as to illegitimacy, made by a member of the mother's family.
There is, perhaps, a technical reason for excluding the declarations as
to illegitimacy where they show that the person is a bastard, and not,
therefore, a member of the father's family ; but this would hardly
apply in case of the mother, and in most of the states there are statutes
which change the common-law status of bastards." In Wigmore on
Evidence (volume 2, § 1492), the author says it has been held in Eng-
land that, where the relationship sought to be established is that of an
illegitimate child, the declarations of the father's relations are not com-
petent, citing Crispin v. Doglioni. The author adds : "The principle
of the ruling has been disapproved in England, and ought not to be
followed in this country. It seems never to have been doubted that
the declarations of the parents themselves, or the repute in the house-
hold where the child lived, as to a child's legitimacy or illegitimacy,
are receivable, although it is obvious, upon the false theory of Crispin
v. Doglioni, the father's declarations of illegitimacy would be inad-
missible."
The case of Crispin v. Doglioni was approved in Northrop v. Hale,
76 Me. 306, 49 Am. Rep. 615; the approval being upon the ground
that the ruling was correct, where the bastard occupied the position
the common law placed him in. In the Northrop Case, the claimant
to an estate sought to establish that he was the illegitimate son of the
intestate by the declarations of a deceased sister of the intestate. The
court, after citing and reviewing authorities, English and American,
say : "It would seem, therefore, that the declarations of the intestate
would be admissible to show that the appellant was her illegitimate
son ; and, if the mother's declarations would be, why would not be
those of the mother's sister, in whose family the child was born and
brought up and in which the mother lived at the time and for years
after?"
The rule that declarations of the supposed parent and deceased mem-
bers of his or her family may be proven to establish the parentage,
where the relationship is illegitimate, is supported in Crauf urd v. Black-
burn, 17 Md. 49, 77 Am. Dec. 323 ; Blackburn v. Crawford, 3 Wall.
175, 18 L. Ed. 186; Watson v. Richardson, 110 Iowa, 678, 80 N. W.
407; and Alston v. Alston, 114 Iowa, 29, 86 N. W. 55. In all of these
cases it is held that the declarations of the putative father may be prov-
en. Unquestionably, by the great weight of authority, the declarations
of the mother and the members of her family are competent to prove
the relation of parent and child, without regard to whether the claim
is that the child was legitimate or illegitimate. It is, of course, to be
understood that this rule is applicable only in cases where the child
G78 HEARSAY (Ch. 3
was born before marriage of the mother, or in cases where she had
never been married. Besides the declarations of Slisan Champion, the
complainant proved the declarations of John Earl and Daniel Cham-
pion that Henry McCarthy was their brother, and of John Cheshire,
husband of Lydia Cheshire, oldest daughter of Susan Champion, that
said Henry McCarthy was the brother of his wife and John Earl. We
think these declarations of these parties were all competent. John
Cheshire's relationship to the family, as husband of Susan Champion's
daughter, was sufficient to render his declarations admissible. Green-
wood v. Spiller, 2 Scam. 502; Bradner on Evidence, p. 427. 21 * * *
Counsel for Henry McCarthy insist that the testimony of Daniel Mc-
Carthy was competent, and should have been considered by the master.
He testified that he and Henry McCarthy were sons of the same fa-
ther, but not of the same mother, and that he had heard his father say
that Susan Champion was Henry McCarthy's mother. Daniel said
he was 14 or 15 years old when he heard this declaration made, and
it is apparent this was several years after Susan Champion had been
married to Elias Champion. It does not clearly appear from the ab-
stract that Daniel McCarthy's father was dead at the time he testified ;
but, if he was, we think his declarations were incompetent. Such dec-
larations to establish pedigree must be of members of the family and
not of third persons. Daniel McCarthy's father and Susan Champion
were in no way related, were never members of the same family, and
while his declarations, if dead, might be competent to prove that he
was the father of Henry, if that were the question at issue, they were
not competent to prove that Susan Champion was the moth-
er. * * *
Affirmed.
AALHOLM et al. v. PEOPLE.
(Court of Appeals of Now York, 1914. 211 N. Y. 406, 105 N. E. 617, L. R. A.
1915D, 215, Anil. Cas. 1915C, 1039.)
Werner, J. 22 The state has in its possession money and property
aggregating over $50,000 in amount and value, which it received from
the estate of one William A. Kenneally, who died testate in the city of
Brooklyn in 1868. No person entitled to this property could be found,
and it was turned over to the state to await the appearance of claim-
ants. Many persons, to the number of 100 or more, have at different
times presented their claims based on their alleged relationship to the
testator, but none was successful until the present petitioner appeared
and satisfied the referee of the validity of his claim. * * *
-i For same result under a similar statute, see Northrop v. Hale, 70 Me,
306, 49 Am. Rep. 615 (188 I).
22 Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 679
The testator, William A. Kenneally, was the son of a sergeant in the
British army named John Kenneally, by a wife whose maiden name
was Mary Finn. The petitioner says he is also a son of the same Ser-
geant John, but by another wife. If this claim is well founded, it fol-
lows that he is a half-brother of the testator. The only evidence of
the petitioner's relationship to Sergeant John, and through him to the
testator, consists of declarations made to the petitioner by his mother,
who has been dead many years ; and by the petitioner's half-sister,
who is also dead, to her children who are the petitioner's nephews
and nieces. The testimony as to these declarations is given by the
petitioner and these nephews and nieces. * * *
Declarations in regard to pedigree, although hearsay, are admitted
on the principle that they are the natural effusions of persons who
must know the truth and who speak on occasions when their mindsi
stand in an even position without any temptation to exceed or fall short
of the truth. Whitelock v. Baker, 13 Vesey, 514; Berkeley Peerage
Case, 4 Camp. 401. The admissibility of such declarations is subject
to three conditions: (1) The declarant must be deceased. (2) They
must have been made ante litem motam, i. e., at the time when there
was no motive to distort the truth. (3) The declarant must be re-
lated either by blood or affinity to the family concerning which he^
speaks.
The declarations which we are considering concededly conform to
the first two of these conditions. The question here is whether they
come within the third. The learned counsel for the respondent con-
tends, and the Appellate Division has held, that the declarations of the
petitioner's mother, Margaret Kearns Hardiman, as to her marriage
to Sergeant John Kenneally, are not alone sufficient to bring them
within that part of the rule requiring the declarations to be made by
a member of the family concerning which they are advanced. More
concretely stated, the decision is that such declarations are not compe-
tent, unless there is some proof dehors the declarations themselves that
the declarant was related to the family which the declarations are in-
tended to affect. Counsel for the appellant insists, on the other hand,
that these declarations, if taken as true, are shown to have been made
by a member of the family of Sergeant John ; and the contention in
this regard seems to be that the declarations themselves supply the
necessary corroborative testimony.
In Blackburn v. Crawford, 3 Wall. 175, 187, IS L. Ed. 186, it was
sought to prove that certain persons were nephews and nieces of one
Dr. Crawford, whose estate they claimed. They were children of a
woman who, it was claimed, had married a brother of Dr. Crawford.
This marriage was disputed. The declarations of a sister of the
mother of the claimants were received in evidence to the effect that
the mother had told her that she had married a brother of Dr. Craw-
ford. These declarations were objected to on the ground that the
declarant was not shown to be related to the family of Dr. Crawford.
CSO HEARSAY (Ch. 3
In sustaining this objection the United States Supreme Court, speak-
ing by Mr. Justice Swayne, said:
"It is well settled that, before the declarations can be admitted, the
relationship of the declarant to the family must be established by oth-
er testimony. Here the question related to the family of Dr. Craw-
ford. The defendants in error claimed to belong to the family, and
to be his nephew and nieces. To prove this relationship, it was com-
petent for them to give in evidence the declarations of any deceased
member of that family. But the declarations of a person belonging to
another family — such person claiming to be connected with that fam-
ily only by the intermarriage of a member of each family — rest upon
a different principle. A declaration from such a source of the mar-
riage which constitutes the affinity of the declarant is not such evidence
aliunde as the law requires." * * *
The qualification is one of growing importance. Without it a per-
son may establish his relationship to any family he chooses by simply
stating that he has heard from a member of his family a recitation of
the facts establishing the desired connection. In this country, filled
with densely crowded cities in which large fortunes are no longer rare,
it will be wiser and safer to maintain this rule, circumscribed by this
qualification, than to relax it even in cases that appear to be meritori-
ous. It may prove a hardship now and then to require even slight
evidence of the relationship of a decedent to the family of which he
declares before his declarations will be received, but the consequences
of the contrary rule would inevitably be much more serious.
With a single exception, the English cases sustain this qualifica-
tion. Plant v. Taylor, 7 Hurl. & N. 211, 237; Hitchins v. Eardley,
L. R. (2 P. & D.) 248; Smith v. Tebbitt, L. R. (1 P. & D.) 354; Atty.
Gen. v. Kohler, 9 H. L. Cases, 660. It is also the rule in other states.
Northrop v. Hale, 76 Me. 306, 49 Am. Rep. 615; Wise v. Wynn, 59
Miss. 588, 42 Am. Rep. 381 ; Anderson v. Smith, 2 Mackey (D. C.)
281 ; Lanier v. Hebard, 123 Ga. 633, 51 S. E. 632. The exception
referred to is found in a case, cited by counsel for the appellant, which
seems in theory to uphold the qualification above set forth, but in fact
ignores it. In Monkton v. Atty. Gen., 2 Russell & Mylne, 147, a nar-
rative written by one John Troutman, purporting to give a genealogical
account of his family, was admitted in evidence as a declaration to
prove the relationship of the claimants to the testator, Samuel Trout-
man. John Troutman, the declarant, who had died prior to the trial,
was a member of the family of the claimants; but if we read the
facts aright there was no other evidence connecting the two families.
Lord Brougham there said:
"I agree entirely that in order to admit hearsay evidence in pedigree,
you must, by evidence dehors the declarations, connect the person
making them with the family. But 1 cannot go the length of holding
that you must prove him to be connected with both branches of the
family, touching which bis declaration is tendered. Thai he is con-
Sec. 2) RECOGNIZED EXCEPTIONS 681
nected with the family is sufficient; * * * to say that you cannot
receive in evidence the declaration of A., who is proven to be a rela-
tion by blood of B., touching the relationship of B. with C, unless
you have first connected him also by evidence dehors his declaration
with C, is a proposition which has no warrant either in the principle
upon which hearsay is let in, or in the decided cases."
This case is o'ften cited and has been the subject of much comment,
and it seems to have produced most of the confusion in which this
subject of pedigree is involved. When that case came before the
House of Lords upon an appeal in a subsequent proceeding (sub nom.
Robson v. Atty. Gen., 10 Clark & Fin. 471), this question was not
passed upon, and, in respect of the admissibility of the narrative of
John Troutman, the court plainly stated that it desired to be ''under-
stood as not expressing any opinion as to the admissibility of it in
point of law." In Wise v. Wynn, supra, the Monkton Case was com-
mented upon as follows :
"The same doctrine (i. e., requiring proof dehors the declarations)
was announced in Monkton v. Atty. Gen., 2 Russ. & Myl. 147, though
it may perhaps be doubted whether the conclusion reached in that case
does not offend against the doctrine."
Sitler v. Gehr, 105 Pa. 592, 51 Am. Rep. 207, and Estate of Hart-
man, 157 Cal. 206, 107 Pac. 105, 36 E. R. A. (N. S.) 530, 21 Ann.
Cas. 1302, are in the same category with the Monkton Case. That
case also appears to be vouched for by no less an authority than
Prof. Wigmore in his well-known work on Evidence (volume 2, §
1491). If we read him aright, he expresses the view that the Monk-
ton Case sets forth the true doctrine, and he argues, in effect, that when
a declarant is shown to be connected with the family whose relation-
ship with another family is in dispute, his declarations are competent
without any independent evidence connecting the two. This state-
ment of the rule, it seems to us, is too broad. When a declarant who
claims relationship by consanguinity has been shown to be a member
of one branch of a family, it is of course not necessary to prove him
also related to the other branch in order to make his declarations com-
petent; but, until there is some independent evidence connecting his
family with the other family, the case is not brought within the
qualification of the rule which is supported by the great weight of au
thority. Much more is this qualification to be observed in cases of
asserted relationship by affinity, as in the case of the declarant upon
whom the petitioner relies to prove his consanguinity to the testator.
Proof of the marriage of the petitioner's mother to Sergeant John
Kenneally is essential to establish the petitioner's relationship to the
testator. There is no such proof in the case at bar, unless we accept
the mother's unsupported declarations as evidence of the asserted re-
lationship, and this we regard as inadmissible.
There are a few jurisdictions in which it has been held that the
declarant need not be related, either by blood or marriage, to the
GS2 HEARSAY (Ch. 3
family of which he declares. It is of course the logical corollary of
this unqualified rule that the declarations of any person who claims
to know the facts are to be regarded as competent, whether he is or is
not related to the family of whose pedigree he speaks. The reason-
ing in support of this relaxed rule is well illustrated in Carter v.
Montgomery, 2 Tenn. Ch. 216, 227, 228, where the prevailing English
and American rule is very clearly stated. * * *
We live in a state where the social conditions, no less than the
rapid growth of our population and the constant increase of similar
family names, are urgent reasons for preserving the rule in its in-
tegrity. Identity of names, religion, and nativity are too common to
be alone sufficient evidence of family connections. Any extension of
the hearsay rule in regard to pedigree, permitting declarations by per-
sons not related by blood or marriage to the person from whom de-
scent is the matter in issue, would open the door to frauds and uncer-
tainties which should not be invited or encouraged.
The petitioner's case, whatever its merit, fails at the point of great-
est importance, because it lacks the support of any evidence, aside
from the declarations testified to by him and his nephews and nieces,
which tends to establish his relationship to Sergeant John Kenneally,
and through him to the testator William A. Kenneally. We agree
therefore with the Appellate Division in the conclusion that the peti-
tioner has not proved his right to the money and property of William
A. Kenneally's estate, now in the custody of the state. 23 * * *
The order of the Appellate Division should be modified by direct-
ing a new hearing.
23 And so in Vantine v. Butler, 240 Mo. 521, 144 S. W. 807, 39 L. K. A. (N.
S.) 1177 (1912), and cases collected in note to principal case, L. R. A. 1915D,
215 (1914).
For the contrary view, see Estate of Hartman. 157 Cal. 206, 107 Pac. 105,
36 L. R. A. (N. S.)*530, 21 Ann. Cas. 1302 (1910), though there it appears that
i here was some other evidence of relationship. The same thing appears to
be true in Siller v. Gehr, 105 Pa. 577, 51 Am. Rep. 207 (1SS4). In Jarchow
v. Grosse, 257 111. 36, 100 N. E. 290, Ann. Cas. 1914A, 820 (1912), it was held
that, in case the declarant was the person whose estate was claimed, no other
evidence of relationship was necessary; and so in Wise v. Wynn, 59 Miss.
42 Am. Rep. 3S1 (1882), suggesting that in such cases the admissibility
might be supported on the theory of an admission or a statement against in-
terest.
Sec. 2) RECOGNIZED EXCEPTIONS 083
IX. Spontaneous Statements 2 *
(A) As to a Mental State 25
TUBERVILLE v. SAVAGE.
(Court of King's Bench, 1670. 1 Mod. 3.)
Action of assault, battery, and wounding. The evidence to prove a
provocation was, that the plaintiff put his hand upon his sword and
said, "If it were not assize-time, I would not take such language from
you." The question was, If that were an assault?
The Court agreed that it was not ; for the declaration of the plain-
tiff was, that he would not assault him, the Judges being in town ;
and the intention as well as the act makes an assault. Therefore if
one strike another upon the hand, or arm, or breast in discourse, it is
no assault, there being no intention to assault ; but if one, intending
to assault, strike at another and miss him, this is an assault : so if
he hold up his hand against another in a threatening manner and say
nothing, it is an assault. In the principal case the plaintiff had judg-
ment.
TRELAWNEY v. COLEMAN.
(Court of King's Bench, 1S17. 1 Barn. & Aid. 90.)
In an action for adultery, tried before Holroyd, J., at the Middle-
sex sittings after last term, letters from the wife to the husband (while
apart from each other) were offered in evidence by the plaintiff to
shew that they lived on terms of mutual affection. It appeared that
they had been separated for six months only, and they had lived to-
gether some months before the wife became acquainted with the de-
24 The phrase, "res gestae," has quite commonly been applied to the various
sorts of statements treated in this section, but the usage is unfortunate and
has led to much confusion, because also applied to the proof of words where
no question of hearsay is involved. Such a comprehensive phrase, indiscrimi-
nately invoked to explain or justify the admission of hearsay and that which
is not hearsay, is bound to lead to loose thinking, and to obscure the real
problem in any given case.
25 Various mental states may be important as ultimate facts; that Is, a
rule of law may attach certain consequences to an act when done with a
given intent. For example, the asportation of a chattel with the proper
wrongful intent amounts to larceny ; and so the tearing or burning of a will
with intent to revoke works a revocation. In such cases the only problem
under this topic is how far assertions of such an intent are receivable t<>
prove it. More frequently it is sought to prove a mental stale as a basis for
an inference that an act was done or omitted, or that such mental state con-
tinued. In such cases there are two problems, viz.: Whether such mental
state is a proper basis for the inference in question; and, if so, how far as-
sertions of such intent, belief, etc., are admissible to prove it.
fiSl HEARSAY (Ch. 3
fendant. The plaintiff had been a midshipman in the navy, and was
a man in slender circumstances. The letters were proved to have been
written at the time they bore date, and long before the wife was sus-
pected of adultery, or was even acquainted with the defendant: but
no direct evidence was given as to the cause of their living separate
when the letters were written: and Gurney objected that they could not
be received. But Holroyd, J., permitted them to be read, and the
plaintiff had a verdict.
Gurney now moved for rule nisi for a new trial, on the ground
of these letters having been improperly received in evidence.
Lord EllEnborough, C. J. 26 I have no doubt that these letters
were admissible evidence. What the husband and wife say to each
other is, beyond all question, evidence to shew their demeanor and
conduct, whether they were living on better or worse terms: what
they write to each other may be liable to suspicion ; but when that is
cleared up, that ground of objection fails: that was satisfactorily
explained in the present case by proof of the letters being written at
the time they bore date, and long before any suspicion of the wife's
misconduct.
BaylEy, J. I think these letters were properly received : when it
is once established that the manner in which the husband and wife
conduct themselves towards each other, (when together,) is admissible
evidence ; it follows that letters, which in absence afford the only means
of shewing their manner of conducting themselves towards each other,
are also admissible. There may indeed, in letters, be an assumed af-
fection, which does not actually exist; but the behaviour of the par-
ties themselves is open to the same objection; for they may (when
together) assume an appearance of affection which has not any foun-
dation in truth and sincerity. As to these letters, there is nothing to
raise any suspicion of collusion, for they are proved to have been
written at the time when they bear date, and long before any suspicion
of the adulterous intercourse.
Rule refused. 27
2 6 Opinion of Abbott, J., omitted.
27 Compare Willis v. Bernard, 8 Bing. 376 (1832), where In a similar action
the wife's letters to a third person were admitted for the same purpose. In
the latter cusc, Tindal, J., observed: "* * • The second objection is, that
the letter contains statements of fact which could not with propriety be sub-
mitted as evidence to a jury, and might improperly influence their judgment.
I admit that the letter does contain statements of fact, and if it had been
used as evidence of those facts, there ought to be a new trial. But it was
produced for the purpose of showing the state of the wile's feelings; the
jury were cautioned that it was not to be taken as evidence of the facts, and
It contains passages sufficient to show the general good feeling of the wife.
'I wrote yesterday to John in a packet that was sent over by the steamboat
in order to leave New York, if possible, by the Pacific the 1st of August, but
I bad not time to write to you by the same parcel.' And in the body cf the
letter 'I earnestly entreat you to forward Ibis plan as much as you
can, and thus procure me one of the greatest pleasures the money could ever
afford me, of being able to forward in any degree, however trilling, the hap
Sec. 2) RECOGNIZED EXCEPTIONS 685
THOMPSON et al. v. BRIDGES et al.
(Court of Common Pleas, 1818. 8 Taunt. 336.)
Trover for goods taken by the defendants, as sheriff of Middlesex,
in execution under a fi. fa., dated the 27th of November, 1816. At the
trial, before Burrough, J., at the Middlesex sitting- after the last term,
the plaintiff proved the trading and the act of bankruptcy, early in
November, 1816. He then proved the petitioning creditor's debt, by
the production of the bankrupt's acceptance for £105., in favor of
Elvey, the petitioning creditor. The counsel for the defendant stated,
that he should show the transaction to be founded in fraud, and called
a witness, who swore that the bankrupt informed him, previous to his
bankruptcy, that he (the bankrupt) had lost a cause in the King's
Bench ; and that if a commission could be taken out against him, it
would destroy the effect of the judgment in that action ; that the bank-
rupt asked him whether any person could not be made bankrupt; to
which the witness replied in the negative, unless there were a sufficient
debt due by the person to be made bankrupt ; whereupon the bankrupt
said he did not owe £10. to any man, and inquired of the witness,
whether, if the witness were to draw a bill to be accepted by him (the
bankrupt) the witness would become his creditor? Upon the refusal
of the witness to draw such a bill, the bankrupt said he had a friend
who would do it for him. This testimony was corroborated. For the
plaintiff it was urged, that this evidence was inadmissible; but Bur-
rough, J., admitted it, stating, that he received it as evidence, for the
purpose of showing that there was a scheme 28 or contrivance to obtain
a fraudulent commission. The learned judge told the jury that the
cause mainly turned upon the petitioning creditor's debt, and that if
piness or benefit of my husband.' Surely as a declaration of the wife's feel-
ings, this was not to be excluded. No doubt it renders the administration
of justice more difficult when evidence, which is offered for one purpose or
pei son, mav incidentally apply to another; but that is an infirmity to which
all evidence is subject, and exclusion on such a ground would manifestly
occasion greater mischief than the reception of the evidence."
Compare Holmes, J., in Buckeye Powder Co. v. Du Pont Powder Co., 24S
U. S. 55. 39 Sup. Ct. 38, 63 L. Ed. (1918): "* * * Several exceptions
were taken to the exclusion of statements by third persons of their reasons
for refusing or ceasing to do business with the plaintiff. We should be slow
to overthrow a judgment on the ground of either the exclusion or admission
of such statements except in a very strong case. But the exclusion in this
instance was proper. The statement was wanted not as evidence of the mo-
tives of the speakers but as evidence of the facts recited as furnishing the
motives. Lawlor v. Loewe, 235 U. S. 522, 536, 35 Sup. Ct. 170, 59 L. Ed. 341
[1915] ; Elmer v. Fessenden, 151 Mass. 359, 362, 24 N. E. 208, 5 L. R. A. 724
[1890]."
28 Andrews, C. J., in Mills v. Lumber Co., 63 Conn. 103, 26 Atl. 6S9 (1893):
"The declaration of a party that he intends to do a certain act, or pursue a
certain course of conduct, is always admissible when the issue is whether or
not the party making the declaration did the act or followed the course of
conduct, because the declaration proves that those feelings exist which prompt
the act or the conduct."
686 HEARSAY (Ch. 3
{hey should be of opinion that the bankrupt gave the acceptance proved,
for the purpose of upholding the commission, then there would be no
petitioning creditor's debt, observing, that, although the bankrupt
could not be called to destroy the commission, yet he was of opinion,
that the bankrupt's declarations were evidence to show, that the bank-
rupt and some other person had concerted the commission. The jury
found a verdict for the defendants. And now,
Pell, Serjt., moved for a new trial.
Dallas, J. There are many cases where the declarations of a
bankrupt are admissible in evidence, and my Brother Pell has princi-
pally rested his objection in this case, on the ground that the declara-
tions of the bankrupt have been improperly received. But if the peti-
tioning creditor's debt be founded in collusion, the commission fails,
and the evidence received at the trial, went, to show that such collusion
had existed, and so, in my opinion, became part of the res gestae. I
think that the evidence was properly admitted and left to the jury, and
mat they have come to a right conclusion on the case.
The rest of the court concurring, the rule was
Refused.
HADLEY v. CARTER.
(Superior Court of Judicature of New Hampshire, 1835. 8 N. H. 40.)
This was an action on the case, brought against the defendant for
enticing away one Andrew Bryant, a hired man in the plaintiff's employ.
On the trial, the plaintiff proved that said Bryant was in his em-
ploy, as a hired laborer, under a contract to work for a year for a cer-
tain sum as wages, and that previous to the expiration of the year he
left the employ of the plaintiff; and the plaintiff offered evidence
tending to show that said Bryant left through the advice and persua-
sion of the defendant. * * *
In order to show that said Bryant left the plaintiff's employ of his
own accord and for reasons of his own, the defendant introduced the
testimony of David E. Dow, a partner of the plaintiff in the wheel-
wright business at the time, who gave evidence that the day preceding
the night on which Bryant left, Bryant came to him and said he was in
trouble, — That prior to his entering the employ of the plaintiff he
was in embarrassed circumstances and in the custody of a sheriff, who
had a writ against him, — That for the purpose of relieving himself he
forged a note against a man in Sandwich and put it into the plaintiff's
Lands as security, and that the plaintiff paid the debt against him, —
That it was agreed that the plaintiff should keep the note in his own
lands, and that he should go to work for the plaintiff and pay him, —
That when he had worked enough, as he thought, to pay the amount,
he asked for the note, but the plaintiff put him off, — That he had asked
for it a number of time-, but it was not given up, and that the plain-
Sec. 2) RECOGNIZED EXCEPTIONS 687
tiff had told him he had written to the man in Sandwich, and the an-
swer was that if he had such a note it was forged. The witness fur-
ther testified that Bryant said at the same time, that a brother of the
plaintiff was at enmity with him, and had threatened a prosecution, and
that he expected service of it every hour — that he asked the witness'
advice if he had not better go and see the plaintiff, who was then ab-
sent and spoke of taking the stage — that in the evening, the witness
told him the defendant, Carter, was going next day to Littleton, and
if he must go he had better go with him — that the last Bryant said, was
that he had concluded to go with the defendant, and the next morning
he was gone.
To the admission of this evidence the plaintiff objected; but it wa?
admitted, and the jury having returned a verdict for the defendant,
the plaintiff moved for a new trial, because he was precluded from in-
troducing the evidence aforesaid, to show that Bryant was indebted to
him, and because the declarations of Bryant were admitted on the part
of the defendant. 29
Upham, J. * * * The only question in the case which it becomes
necessary to consider, is, whether the declarations made by the serv-
ant, at the time of his leaving the employ of the plaintiff, of the mo
tives which governed him in leaving, are admissible as evidence.
The testimony of the witness as to mere declarations of the servant
could not certainly be evidence; for the servant himself should be
produced, and proof of his sayings would be rejected on the general
rule respecting hearsay evidence. There are, however, exceptions to
the general rule. Where declarations of an individual are so con-
nected with his acts as to derive a degree of credit from such connec-
tion, independently of the declaration, the declaration becomes part of
the transaction, and is admissible in evidence.
The evidence in such case is not regarded as mere hearsay testimony.
It does not rest upon the credit due to the declarant, but may be ad-
mitted even though the declarant in ordinary cases would not be be-
lieved upon his oath. The testimony is admitted on the presumption,
arising from experience, that when a man does an act, his cotemporary
declaration accords with his real intention, unless there be some rea-
son for misrepresenting such intention. Its connection with the act
gives the declaration greater importance than what is due to the mere
assertion of a fact by a stranger, or a declaration by the party himself
at another time. It is part of the transaction, and may be given in evi-
dence in the same manner as any other fact.
In this instance the servant, at the time of preparation for leaving,
disclosed causes for such a design, of a character strongly implicating
himself, and tending to negative entirely any suspicion of intentional
misrepresentation of his true motive. He communicated this design in
connection with the fact of asking advice what course to pursue, and
29 Statement condensed and part of opinion omitted.
688 HEARSAY (Ch. 3
accompanied his declarations of the motive assigned, with the act of
leaving. The declaration then is so connected with the fact as to give
character to it, and the fact carries with it, at the same time, in the
declaration, evidence of the motive.
Where it is necessary, in the course of a cause, to inquire into the
nature of a particular act, and the intention of the person who did
the act, proof of what the person said at the time of doing it is ad-
missible, to shew its true character. Richardson's N. H. Justice 164.
Where in cases of bankruptcy, the question is with what intent the
party .absented himself from his house, his declaration, cotemporary
with the fact of departure, is evidence to explain that intention. 1
Starkie's Ev. 48.
On the same principle, in an action against a voluntary bailee, for
the loss of goods by carelessness and gross negligence, the defendant
may give in evidence his own acts and declarations immediately be-
fore and after the loss, to repel the allegation that the loss was oc-
casioned by his own neglect, carelessness, and mismanagement. Tomp-
kins v. Saltmarsh, 14 Serg. & R. (Pa.) 275. See, also, Pool v. Bridges.
4 Pick. (Mass.) 378; Digby v. Stedman, 1 Esp. 329; Aveson v. Ld.
Kinniard, 6 East, 193 ; Price v. Earl of Torrington, 1 Salk. 285.
We are of opinion that the declarations of the servant, made in
this instance in connection with the act of leaving, became part of the
res gestse, and are admissible as being fully within the rule applicable
to cases of that character. There must, therefore, be
Judgment on the verdict. 80
RAWSON et al. v. HAIGH et al.
(Court of Common Pleas, 1824. 2 Bing. 99.)
In this cause, which was tried at the Guildhall sittings, after Hilary
term last, before Lord Gifford, C. J., the plaintiff's evidence was com-
menced by putting in the commission of bankrupt and proceedings
against Richard Wilkinson. The trading was thereby substantiated,
but the proof of the act of bankruptcy was, as contended by the de-
fendant's counsel, insufficient, and his lordship reserved that point,
with liberty for the defendants to move for a nonsuit thereon.
The commission of bankrupt bore date the 6th of September, 1822.
The deposition of the act of bankruptcy was dated the 17th Septem-
ber, 1822, and was made by William Llewellyn. After setting out the
examinant's knowledge of the bankrupt, and proving his trading for
the space of four years immediately antecedent to the commission, it
■"> And so In Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. It. A.
724 (1890).
also, Gilchrist v. Bale, 8 Walts (I'a.) :',."..", 84 Am. Dec. 469 (1839),
where a wile's complaints of ill treatment were admitted to show her reason
for leaving tier husband.
Sec. 2) RECOGNIZED EXCEPTIONS 089
staled that on or about the second of July, 1822, Wilkinson had a
meeting with the examinant relative to some accounts in which Wilkin-
son had, as examinant understood and believed, an interest, and at
such meeting an appointment was made for the following morning at
eleven o'clock, when the accounts were to be produced, and the busi-
ness relating thereto to be finished. That on the morning of the 3d of
July examinant went to Wilkinson's lodgings, where the appoint-
ment was to be kept, when, instead of meeting with Wilkinson, ex-
aminant received from Wilkinson's brother a note, (marked B,) and
two or three days after, examinant received from Wilkinson a letter
(marked C.) The examinant then deposed to the signature of Wilkin-
son to the letter, (marked A,) and concluded with stating his belief,
that Wilkinson did not attend to the appointment in consequence of
his apprehension that a writ had been or was about to be issued against
him.
The note marked B was from Wilkinson to Llewellyn, and after
alluding to Wilkinson's sudden departure, proceeded, "A letter from
Paris, on urgent business is the cause. I shall be back, I hope, in
ten days: in the mean time I shall make proposals to your son's
creditors, and trust on my return to find all settled;" and then in a
postscript, "I will write immediately to Messrs. R. and S. at Bristol,
so do not feel uneasy about them or any of your son's friends ; my
brother will deliver you your account current with your son."
The letter marked C was also from R. Wilkinson to Llewellyn, dated
Calais, 4th July, 1822, and was as follows : "My brother will show
the letters I have written from Bristol and Yorkshire: I hope you
will approve of them. If you could accompany him in the rounds
which he is going to make, you would contribute to get the business
settled a moment the sooner, and then your account current can be ar-
ranged in two hours between us. I am so much tired with writing that
I can hardly keep my head up, so you must excuse brevity, particu-
larly as I have to go off to-night for Paris."
The letter marked A was from R. Wilkinson, dated Paris, the 2d of
August, 1822, addressed to Messrs. W. and J. B. Sedgwick, and the
following extract alone bore on this case: "as some of Mr. W. B.
Llewellyn's creditors have threatened to make me solely responsi-
ble, I am under the necessity of remaining in France, apprehensive
that some lawsuit, or even arrest, may be instituted against me, and
which would ruin all my hopes and expectations for hereafter; I
therefore feel myself under the necessity of requesting of them all
a declaration, that no arrest or lawsuit shall be put in force against
me; and I trust, gentlemen, you will have no objection to grant me
the same, being perfectly convinced that a personal interview will do
more towards the settling of Mr. Llewellyn's concerns than can be
done by correspondence."
TTint.Ev. — 44
GOO HEARSAY (Ch. 3
The act of bankruptcy relied on, was the departing the realm with
intent to defraud or delay creditors. A verdict having been found for
the plaintiffs,
Vaughan, Serjt., obtained a rule nisi to set it aside, and enter a
nonsuit instead.
Best, C. J. It appears from the learned judge's report to have
been left to the jury to determine whether or no Wilkinson had com-
mitted an act of bankruptcy ; if so, the only point for us to determine
is, whether evidence was adduced of such an act. The words of the
statute, 13 Eliz. c. 7, s. 1, are, "If any merchant — shall depart the
realm — or otherwise — absent himself — to the intent or purpose to de-
fraud or hinder any of his creditors — he shall be reputed, deemed, and
taken for a bankrupt." It is not necessary for us to decide, whether,
if a party leaves the realm with one purpose, and afterwards stays
away with another, namely, to defraud his creditors, such a staying
away would be an act of bankruptcy, because, upon the evidence be-
fore us, I am clearly of opinion that Wilkinson departed the realm
with intent to hinder his creditors. In the letter of the 3d of July,
which he left at his lodgings at the time of his departure, and which
was addressed to a person who had had a meeting with him rel-
ative to some accounts in which he was interested, after speaking
of his sudden absence, he says, "In the mean time I shall make
proposals to your son's creditors," and "I will write immediate-
ly to Messrs. R. and S., so do not feel uneasy about them, or any of
your son's friends :" Was not this letter of itself sufficient to raise sus-
picion ? But in a letter dated the very next day from Calais, he says,
"If you could accompany my brother in the rounds which he is go-
ing to make, you would contribute to get the business settled a moment
the sooner, and then your account current can be arranged in two
hours between us." Does not this letter show that he was embar-
rassed in his affairs, and that he departed because he apprehended his
creditors would act hostilely? Then comes the third letter from Paris,
in which he says, "As some of Mr. W. B. Llewellyn's creditors have
threatened to make me solely responsible, I am under the necessity of
remaining in France." Now, when these letters are coupled with the
fact of his running away in a hurry, would not a jury be warranted in
finding that he went to avoid his creditors? If so, there has been a
clear act of bankruptcy.
But it has been urged, that the second and third letters having been
written subsequently to the act of departing the realm, were not ad-
missible in evidence: I am clear that they were admissible. The go-
ing abroad was of itself an equivocal act, and where an act is equiv-
ocal, we must get at the motive with which it was committed. In
ninety-nine cases out of a hundred, this can only be got at by the dec-
larations of the party himself. The present, therefore, is an exception
to the rule which says, that a party shall not make himself a bankrupt
Sec. 2) RECOGNIZED EXCEPTIONS 691
by his own declarations. It is true, this exception must be taken sub-
ject to limitations; a line must be drawn; and it is clear that a party
must not be enabled to avail himself of declarations made at a time
long subsequent to the act in question. The declarations, in order to
be admissible, must be made, or the letters written, at the time of the
act in question ; but it is sufficient if they are written at any time
during the continuance of the act ; the departing the realm is a contin-
uing act, and these letters were written during its continuance. If
there was an intention to hinder creditors, it is not necessary that they
should actually have been hindered, or even have called and been de-
nied. The jury, therefore, were warranted in the finding they have
come to, and the present rule must be discharged.
Park, J. I do not enter into the question, whether the act of merely
departing the realm is, unexplained, an act of bankruptcy ; but I am
satisfied that declarations made during departure and absence are ad-
missible in evidence to show the motive of the departure. It is im-
possible to tie down to time the rule as to the declarations : we must
judge from all the circumstances of the case : we need not go the
length of saying, that a declaration made a month after the fact would
of itself be admissible ; but if, as in the present case, there are con-
necting circumstances, it may, even at that time, form part of the whole
res gestae. I was present at the trial of Bateman v. Bailey, 5 T. R.
512, and the learned judge who presided thought that declarations made
subsequently to the act were within the rule which excludes the bank-
rupt from proving his own act of bankruptcy: but the Court of King's
Bench held otherwise, and sent the case down for a new trial, because
there might be no other means of getting at the motives which occa-
sioned the act in question. The declarations, however, must be con-
nected with the state of the party's mind at the time, and in the pres-
ent instance I think the connection sufficiently clear for the admission
of the letters.
Burrough, J. I was a commissioner of bankrupts many years, and
I should have had no doubt on letters such as these.
Rule discharged.
INHABITANTS OF SALEM v. INHABITANTS OF LYNN.
(Supreme Judicial Court of Massachusetts, 1S47. 13 Mete. 544.)
Assumpsit to recover the expenses incurred by the plaintiffs in sup-
porting a pauper whose settlement was alleged to be in the town of
Lynn.
At the trial in the court of common pleas, before Wells, C. J., the
plaintiffs undertook to prove that the pauper gained a settlement in
Lynn, under the Rev. St. c. 45, § 1, by her husband's residing there
for the space of ten years together, and paying all taxes duly assessed
on him for five of those years. It was in evidence that her husband,
092 hearsay (Ch. 3
William Stanwood, removed from Lynn to Marblehead, where he re-
mained about four months, and then returned to Lynn ; and the ques-
tion was submitted to the jury, whether said William thus removed
from Lynn with an intention of returning thereto. See Billerica v.
Chelmsford, 10 Mass. 396. To prove such intention, the defend-
ants offered to show his statements, made immediately after his return
to Lynn. But the judge ruled that the inquiry must be confined to
such declarations as were made by said Stanwood after he had formed
the intention of removing from Lynn, at and about the time of his
said removal, and while remaining in Marblehead; and the judge ex-
cluded the defendants' question as to the declarations of said Stanwood
after he had returned to Lynn.
The jury found a verdict for the plaintiffs, and the defendants al-
leged exceptions to the said rulings.
Dewey, J. The proposed evidence of the declarations of Stanwood
was clearly incompetent. The declarations of a party to an act are,
under proper limitations, competent evidence to show the intention of
such party, in reference to such act. If made at the same time with
the act, they may be considered as a part of the res gestae, and so ad-
missible. Somewhat greater latitude is allowed, in reference to the
time of making such declarations, where the question relates to the
domicil of the party at a particular period. The cases of Thorndike
v. City of Boston, 1 Mete. 242, and Kilburn v. Bennett, 3 Mete. 199,
cited by the defendants' counsel, were unlike the present, and do not
furnish any authority to sustain the exceptions to the ruling of the
court of common pleas. The declarations, proposed to be offered in
evidence here, were not made by a party while doing any act, but
were a recital of past transactions and past purposes. They were not
explanatory of an act about to be done, nor made in reference to any
future action ; but they were merely declarations in relation to a past
transaction, and they fell clearly within the ruling of this court, in the
case of Haynes v. Rutter, 24 Pick. 242.
Exceptions overruled. 31
CAMPBELL v. PEOPLE.
(Supreme Court of Illinois, 1854. 16 111. 17, 61 Am. Dec. 49.)
Caton, J. 32 The plaintiff in error, who is a negro, was indicted for
the murder of Goodwin Parker. The evidence in the case tends very
strongly to show that the deceased made an assault upon the prisoner,
and that the homicide was committed in necessary self-defense. It ap-
pears that the deceased and three others went to seek the prisoner at
-> See Vlles v. Waltham, 157 Mass. 542, 32 N. E. 901, 34 Am. St. U<v- 31
(1893), for a more extended discussion of the question; Matter of Newcomb.
192 N. V. 288, 84 N. B. 950 (1908).
az Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS <i!>:'.
his father's house, in the night time. The deceased went to the door
of the house, leaving his companions thirty or forty yards back, to
whom he was to give warning if Campbell was in the house. Shortly
after the deceased went to the door, he called to the others to come on,
and informed them that the negro was there. They rushed up, when
the deceased and the prisoner were seen some distance from the house,
engaged together, and there the deceased was stabbed, and died in a
few minutes. When the deceased went to the house, he had a hatchet
in his hands, which was found near the spot where he was killed ; and
after the negro was committed to jail, a wound was observed upon his
head which penetrated to the skull, and which appeared to have been
made with a hatchet, an axe or a hammer. There was no pretense that
there was any sort of justification or legal cause for arresting or as-
saulting the prisoner.
Upon the trial, the defense offered to prove that on that day, and at
other times shortly before his death, the deceased had made threats
against the prisoner. This evidence the court ruled out, and an excep-
tion was taken. In this the court unquestionably erred, although they
may never have come to the knowledge of the defendant till after the
homicide was committed. If the deceased had made threats against
the defendant, it would be a reasonable inference that he sought him
for the purpose of executing those threats and thus they would serve
to characterize his conduct towards the prisoner at the time of their
meeting, and of the affray. If he had threatened to kill, maim, or dan-
gerously beat the defendant, it would be a fair inference, especially so
long as the evidence shows that he had a hatchet in his hands, that he
had attempted to accomplish his declared purpose, and if so, then the
prisoner was justified in defending himself, even to the taking of the
life of his assailant, if necessary. While the threats, of themselves,
could not have justified the prisoner in assailing and killing the de-
ceased, they might have been of the utmost importance in connection
with the other testimony, in making out a case of necessary self-
defense. The evidence offered was proper, and should have been ad-
mitted. * * *
Judgment reversed. 8 '
33 And so in Wiggins v. Utah, 93 U. S. 465, 23 L. Ed. 941 (1S76).
Compare the treatment of the same problem in McMillen v. State, l n < Mo.
30 (1S50), where threats made shortly before the difficulty were excluded as
not being a part of the res gestae. In State v. Sloan, 47 Mo. 004 (1871), a
series of threats were thought to be so connected as to make them a part of
the transaction. In State v. Elkins, 63 Mo. 159 (1S76), tbe res gestae notion
appears to have been abandoned: "When threats by the person killed should
be admitted in evidence or rejected, is a question involved in a great deal
of doubt and uncertainty. If they have been made a long time antecedent to
the commission of the act, they may be not only valueless but entirely in-
admissible. The relations of the parties may have since entirely changed,
and in the intervening time the person making them may have wholly aban-
doned any previously conceived intention of harming the person against whom
they were uttered. It is impossible to lay down any general rule on the sub-
694 HEARSAY (Ch. 3
WHITELEY v. KING et al.
(Court of Common Pleas, 1SG4. 17 C. B. [N. S.] 756.)
This was an action of ejectment brought by the plaintiff, the grand-
son and heir-at-law of one John Whiteley, to recover certain lands in
the county of York, which were claimed by the defendants as dev-
isees under a will made by John Whiteley on the 6th of December,
1859, and a codicil dated the 17th of December, 1861.
The will, which revoked all former wills, was not to be found at
the death of the testator; but a draft was produced by one Sutcliffe,
the attorney who prepared it, and in whose custody it had remained
down to December, 1861.
The cause was tried before Blackburn, J., at the last Summer As-
sizes at Leeds. It appeared that, at that time, the testator was de-
sirous of making some alteration in his will, and wrote to Sutcliffe
requesting him to let him have the will, and giving him instructions
for a codicil thereto ; that Sutcliffe accordingly went to him with the
will and codicil ; that the testator executed the codicil ; that Sutcliffe
was requested, either by the testator or by one of his daughters who
was present to leave them with the testator ; that he did so ; and
that he saw no more of them : nor did it appear that they had ever
been seen by any one since. The testator died in 1863.
In order to rebut the presumption arising from the absence of the
will and codicil, that the testator had destroyed them, evidence was
offered on the part of the defendants, of repeated declarations made
by the testator to different members of his family, down to a short
period before his death, expressing his satisfaction at having settled
his affairs, and telling one person that he had named him one of his
executors, and another that his will was at Sutcliffe's.
This evidence was objected to on the part of the plaintiff, but ad-
mitted by the learned judge on the authority of Patten v. Poulton, 1
Swab. & Trist. 55, 27 Law J. Probate, 41, where it was held by Sir
C. Cresswell that the presumption that a will left in the keeping of
the testator, if it cannot be found at his death, has been destroyed by
him animo revocandi, is a presumption of fact which prevails only in
the absence of circumstances to rebut it ; and that among such cir-
cumstances are declarations by the testator of good^ will towards the
persons benefited by it, adherence to the will, as made, and the con-
tents of the will itself : and he left it to the jury to say whether or
not the testator had destroyed the will and codicil animo revocandi.
Thejury found that the will had not been revoked, and according-
ly the verdict was entered for the defendants.
Ject Their relevancy, admission or rejection, depends materially upon the
circumstances surrounding each particular case."
In State v. Whltsett, 232 Mo. 511, i::i S. W. ",.-, (1010), the same court, in
dealing with the question of threats made by ;i defendant, thoughl thai their
remoteness in point <»r time affected their weight, but not their admissibility.
Sec. 2) RECOGNIZED EXCEPTIONS 695
Kemplay now moved for a new trial on the ground that the declara-
tions of the testator were not admissible. * * * That the missing
will was intentionally destroyed is a presumption of fact which it
requires strong evidence to rebut. [Erle, C. J. Surely you may
look at a man's words to see what his intentions are. The question
here was whether the testator had the intention to destroy his will
and codicil. Down to the last moment almost of his life he is found
declaring his satisfaction that he has settled his affairs.] Declara-
tions accompanying an act, no doubt, are admissible. But mere loose
conversations deposed to by interested persons ought not to outweigh
the presumption arising from the absence of the document.
Erle, C. J. I am of opinion that there should be no rule in this
case. The non-appearance of the will and codicil raising a presump-
tion of fact that the testator intended to revoke them, evidence tend-
ing to prove the contrary intention was admissible. For this pur-
pose the ordinary channels of information may be resorted to. The
declarations of the testator are cogent evidence of his intentions. In
this case his repeated declarations down to within a very few days
of his death, were abundant evidence that the testator did not intend
to cancel or destroy the will. He on several occasions expressed his
satisfaction that he had "settled his affairs," and on one occasion said
that he had left his will with Air. Sutcliffe. If declarations are evi-
dence of intention, — as the cases cited show they are, — there was
abundant evidence to satisfy the jury here that the testator had no in-
tention to cancel or revoke the will and codicil, and consequently the
verdict was properly found for the defendants.
BylES, J. I am of the same opinion. I see no reason why the
declarations of the testator should not be admitted as part of his con-
duct, to show his intentions as to the disposition of his property.
Keating, J. I am of the same opinion. I think it would be wrong
lo cast a doubt upon a well-established rule of law by granting a rule.
Rule refused. 34
DODGE v. BACHE.
(Supreme Court of Pennsylvania, 1S68. 57 Pa. 421.)
This was an action on the case, by John N. Bache against Wil-
liam E. Dodge and others, commenced May 4, 1860, to recover for the
loss of a quantity of logs, belonging to the plaintiff, alleged to have
been carried away by a freshet occasioned by the opening of a dam
of the defendant. The case was tried before Streeter, P. J., of the
Thirteenth Judicial District.
34 And so in Sudden v. St. Leonard's, 1 P. D. 154 (1876).
For a collection of the modern American cases on this point, see note to In
re Francis. 50 L. R. A. (N. S.) 861, loc. cit. 867 et seq. (1913).
()96 HEARSAY (Ch.3
The plaintiff gave evidence that the defendants carried on the lum-
bering business at Manchester Mills on Pine creek and at other mills
on Marsh creek, which empties into Pine creek. The dam was built
across Marsh creek and was raised about four feet above the dam
proper by slash-boards ; that W. W. McDougall was the general agent
of the defendants in the summer or fall of 1855, had come in 1853 and
left in 1856 ; he gave evidence further that he had logs in the stream
below the defendants' dam which had been carried away by a rise in
the stream ; also evidence tending to show that the rise was occa-
sioned by the cutting of the slash-boards of defendants' dam, A
witness of plaintiff testified that he had driven some of the plaintiff's
logs to the boom at Williamsport, where he got them sawed for the
plaintiff, that there were about 170,000 feet sawed. The principal
question was whether the boards had been cut by McDougall, the
agent of the defendants. A witness testified that she had seen Mc-
Dougall and Charles Grinnell go together to the mill and saw Grinnell
on the dam with an axe apparently chopping something; that it was
in December, 1855, that McDougall and Grinnell were thus seen on
the dam ; there was evidence that the dam was cut in the fall or winter
of 1855.
The plaintiffs then offered to prove by Ezra Chandler, "that some
time in the fall and winter of 1855, and before the dam was let off,
McDougall told the witness that he wanted the witness to put in
some logs that were lying at the Strap Mill, that were scattered along
the edge of the creek at a former floating, and said he was going to
float them through to the Manchester Mills before the creek froze
up ; and said he was going to cut the slash at the Marsh creek pond
to float them through, and that the logs were so put in by him for
that purpose."
The defendants objected, that declarations of an agent were not
evidence against the principal unless made at the time the act was
done; and that a principal is not to be affected by the declarations
of an agent as to his intentions. The evidence was admitted and
a bill of exceptions sealed. 85
The opinion of the court was delivered, March 19, 1868, by
S mars wood, J. The first error assigned is as to the admission of
the testimony of Ezra Chandler. One of the questions in the cause, if
not the principal one, was whether McDougall, the agent of the de-
fendants, had cut the slash-boards of the dam at the Marsh creek
pond, by which an artificial freshet was caused in the stream below,
and the plaintiff's logs were carried away and lost. It was offered
to prove by Chandler that McDougall had declared that he intended
to do this, before the dam was let off. It was objected to on the
ground that such declaration of the agent was no part of the res
gestae, and, therefore, upon the familiar and well-settled rule of evi-
aB Statement condensed nnd part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS (>'.) i
dence, not admissible against his principal. But clearly this rule had
no application. The declaration was offered not as in itself affect-
ing the principal, but in corroboration of the other testimony in the
cause that McDougall and Charles Grinnell, his workman, were seen
to go to the mill together — that Grinnell soon after was observed on
the dam with an axe and that he appeared to be chopping something.
Now, when the question is whether a person has done a particular
thing, and some evidence of it has been given, it is surely competent
to show in corroboration that he had avowed his purpose before-
hand. His principals would not have been affected by his mere inten-
tions unexecuted. But to confirm other evidence of the act itself,
his declarations were unquestionably admissible — not as the declara-
tions of an agent but of the individual whose act was in question. We
think, therefore, that there was no error in the admission of this
evidence. * * *
Judgment reversed (on other grounds).
MUTUAL LIFE INS. CO. v. HILLMON.
(Supreme Court of the United States, 1891. 145 U. S. 285, 12 Sup. Ct. 909,
36 L, Ed. 706.)
This case came up on a writ of error to review a judgment of the
Circuit Court in favor of the plaintiff in an action on a life insurance
policy.
Mr. Justice Gray 30 (after holding that error had been committed in
limiting the challenges to jurors). * * * There is, however, one
question of evidence so important, so fully argued at the bar, and so
likely to arise upon another trial that it is proper to express an opinion
upon it.
This question is of the admissibility of the letters 37 written by Wal-
ters on the first days of March, 1879, which were offered in evidence
as Statement and part of opinion omitted.
8 7 The following are the letters in question:
"Wichita, Kansas,
"March 4th or 5th or 3d or 4th— I don't know— 1879.
"Dear sister and all: I now in my usual style drop you a few lines to let
you know that I expect to leave Wichita on or about March the 5th. with a
certain Mr. Hillmon, a sheep-trader, for Colorado or parts unknown to me.
I expect to see the country now. News are of no interest to you, as you are
not acquainted here. I will close with compliments to all inquiring friends.
Love to all.
"I am truly your brother,
"Fred. Adolph Walters."
Another letter was dated "Wichita, March 1, 1879," was signed by Walters,
and began as follows:
"Dearest Alvina: Your kind and ever welcome letter was received yester-
day afternoon about an bour before I left Emporia. I will stay here until tbe
fore part of next week, and then will leave here to see a part of the country
that I never expected to see when I left home, as I am going with a man by
698 HEARSAY (Ch. 3
by the defendants, and excluded by the court. In order to determine
the competency of these letters it is important to consider the state of
the case when they were offered to be read.
The matter chiefly contested at the trial was the death of John W.
Hillmon, the insured; and that depended upon the question whether
the body found at Crooked creek on the night of March 18, 1879, was
his body or the body of one Walters.
Much conflicting evidence had been introduced as to the identity of
the body. The plaintiff had also introduced evidence that Hillmon
and one Brown left Wichita, in Kansas, on or about March 5, 1879, and
traveled together through southern Kansas in search of a site for a
cattle ranch ; and that on the night of March 18th, while they were in
camp at Crooked creek, Hillmon was accidentally killed, and that his
body was taken thence and buried. The defendants had introduced
evidence, without objection, that Walters left his home and his be-
trothed in Iowa in March, 1878, and was afterwards in Kansas until
March, 1879; that during that time he corresponded regularly with
his family and his betrothed ; that the last letters received from him
were one received by his betrothed on March 3d, and postmarked at
"Wichita, March 2," and one received by his sister about March 4th
or 5th, and dated at Wichita a day or two before ; and that he had not
been heard from since.
The evidence that Walters was at Wichita on or before March 5th,
and had not been heard from since, together with the evidence to iden-
tify as his the body found at Crooked creek on March 18th, tended to
show that he went from Wichita to Crooked creek between those dates.
Evidence that just before March 5th he had the intention of leaving
Wichita with Hillmon would tend to corroborate the evidence already
admitted, and to show that he went from Wichita to Crooked creek
with Hillmon. Letters from him to his family and his betrothed were
the natural, if not the only attainable, evidence of his intention.
The position taken at the bar that the letters were competent evi-
dence within the rule stated in Nicholls v. Webb, 8 Wheat. 326, 337,
5 L. Ed. 628, as memoranda made in the ordinary course of business,
cannot be maintained, for they were clearly not such.
But upon another ground suggested they should have been admit-
ted. A man's state of mind or feeling can only be manifested to oth-
ers by countenance, attitude, or gesture, or by sounds or words, spoken
or written. The nature of the fact to be proved is the same, and evi-
the name of Hillmon, who intends to start a sheep ranch, and as ho promised
me more wages than I could make at anything else I concluded to lake it. for
a while at Least, until I Btrike something better. There is so many folks in
this country thai have got the Leadville fever, and if I could nol of gol the
situation thai I have now I would have wenl there myself; but as it is at
presenl i get to see the best portions of Kansas, Indian Territory, Colorado,
and Mexico. The route thai we Intend to take would cosl a man to travel
from $150 to $200, but it will not cosl me a cent; besides, I gel good wages.
I will drop yoil a letter occasionally until 1 get settled down; then 1 want
you to answer it,"
Sec. 2) RECOGNIZED EXCEPTIONS 699
dence of its proper tokens is equally competent to prove it, whether
expressed by aspect or conduct, by voice or pen. When the intention
to be proved is important only as qualifying an act, its connection with
that act must be shown, in order to warrant the admission of declara-
tions of the intention. But whenever the intention is of itself a dis-
tinct and material fact in a chain of circumstances, it may be proved
by contemporaneous oral or written declarations of the party.
The existence of a particular intention in a certain person at a cer-
tain time being a material fact to be proved, evidence that he expressed
that intention at that time is as direct evidence of the fact as his own
testimony that he then had that intention would be. After his death
there can hardly be any other way of proving it, and while he is still
alive 38 his own memory of his state of mind at a former time is no
more likely to be clear and true than a bystander's recollection of
what he then said, and is less trustworthy than letters written by him
at the very time and under circumstances precluding a suspicion of mis-
representation.
The letters in question were competent, not as narratives of facts
communicated to the writer by others, nor yet as proof that he ac-
tually went away from Wichita, but as evidence that, shortly before
the time when other evidence tended to show that he went away, he
had the intention of going, and of going with Hillmon, which made it
more probable both that he did go and that he went with Hillmon than
if there had been no proof of such intention. In view of the mass of
conflicting testimony introduced upon the question whether it was the
body of Walters that was found in Hillmon's camp, this evidence
might properly influence the jury in determining that question.
The rule applicable to this case has been thus stated by this court :
"Wherever the bodily or mental feelings of an individual are material
to be proved, the usual expressions of such feelings are original and
competent evidence. Those expressions are the natural reflexes of
what it might be impossible to show by other testimony. If there be
such other testimony, this may be necessary to set the facts thus de-
veloped in their true light, and to give them their proper effect. As
independent, explanatory, or corroborative evidence it is often indis-
pensable to the due administration of justice. Such declarations are
3 8 Holmes, J., in Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208, 5 L. R. A.
724 (1S90): "* * * If, as may be assumed, the excluded testimony would
have shown that the workmen when they left gave as their reason to the su-
perintendent that the defendant had told them that the board of health re-
ported arsenic in the silk, the evidence was admissible to show that their be-
lief in tbe presence of poison was their reason in fact. Lund v. Tyngsboroiigh,
9 Cush. 36, 41, 43 [1S51] ; Aveson v. Kinnaird, 6 East, 18S, 193 [1S05J ; Hadley
v. Carter, 8 N. H. 40, 43 [1835]; United States v. Penn, 13 Nat. Baukr. R. 464,
467. Fed. Cas. No. 16,025 [1876]. We cannot follow the riding at nisi prius
in Tilk v. Parson, 2 C. & P. 201 [1825]. that the testimony of the persons con-
cerned is the only evidence to prove their motives. We rather agree with Mr.
Starkie, that such declarations made with no apparent motive for misstate-
ment may be better evidence of the maker's state of mind at the time, than
the subsequent testimony of the same persons. Stark. Ev. (10th Am. ed.) 89."
700 HEARSAY (Ch. 3
regarded as verbal acts, and are as competent as any other testimony,
when relevant to the issue. Their truth or falsity is an inquiry for the
jury." Insurance Co. v. Mosley, 8 Wall. 397, 404, 405, (19 L. Ed.
437).
In accordance with this rule, a bankrupt's declarations, oral or by
letter, at or before the time of leaving or staying away from home, as
to his reason for going abroad, have always been held by the English
courts to be competent, in an action by his assignees against a creditor,
as evidence that his departure was with intent to defraud his creditors,
and therefore an act of bankruptcy. Bateman v. Bailey, 5 Term. R.
512 ; Rawson v. Haigh, 9 J. B. Moore, 217, 2 Bing. 99 ; Smith v. Cram-
er, 1 Scott, 541, 1 Bing. N. C. 585.
The highest courts of New Hampshire and Massachusetts have held
declarations of a servant, at the time of leaving his master's service, to
be competent evidence, in actions between third persons, of his reasons
for doing so. Hadley v. Carter, 8 N. H. 40; Elmer v. Fessenden, 151
Mass. 359, 24 N. E. 208, 5 L. R. A. 724. And the supreme court of
Ohio has held that, for the purpose of proving that a person was at a
railroad station intending to take passage on a train, previous decla-
rations made by him at the time of leaving his hotel were admissible.
Railroad Co. v. Herrick, 49 Ohio St. 25, 29 N. E. 1052. See, also,
Tackson v. Boneham, 15 Johns. (N. Y.) 226; Gorham v. Canton, 5
Greenl. (Me.) 266, 17 Am. Dec. 231; Kilburn v. Bennett, 3 Mete.
(Mass.) 199; Lund v. Tyngsborough, 9 Cush. (Mass.) 36.
In actions for criminal conversation, letters by the wife to her hus-
band or to third persons are competent to show her affection towards
her husband, and her reasons for living apart from him, if written be-
fore any misconduct on her part, and if there is no ground to suspect
collusion. Trelawney v. Colman, 2 Stark. 191, and 1 Barn. & Aid. 90;
Willis v. Bernard, 5 Car. & P. 342, and 1 Moore & S. 584, 8 Bing. 376;
1 Greenl. Ev. § 102. So letters from a husband to a third person,
showing his state of feeling, affection, and sympathy for his wife, have
been held by this court to be competent evidence, bearing on the validity
of the marriage, when the legitimacy of their children is in issue.
Gaines v. Relf, 12 How. 472, 520, 534, 13 L. Ed. 1071.
Even in the probate of wills, which are required by law to be in
writing, executed and attested in prescribed forms, yet, where the
validity of a will is questioned for want of mental capacity, or by rea-
son of fraud and undue influence, or where the will is lost, and it be-
comes necessary to prove its contents, written or oral evidence of dec-
larations of the testator before the date of the will has been admitted,
in Massachusetts and in England, to show his real intention as to the
position of his property, although there has been a difference of
Opinion as to the admissibility, for such purposes, of his subsequent
larations. Shailer v. Bumstead, 99 Mass. 112; Sugden v. St. Leon-
Is, 1 Prob. Div. 154; Woodward v. Goulstone, 11 App. Cas. 469, 478,
484,486. * * *
Sec. 2) RECOGNIZED EXCEPTIONS 701
Upon principle and authority, therefore, we are of opinion that the
two letters were competent evidence of the intention of Walters at
the time of writing them, which was a material fact bearing upon the
question in controversy ; and that for the exclusion of these letters, as
well as for the undue restriction of the defendants' challenges, the
verdicts must be set aside, and a new trial had. * * *
Judgment reversed.
THROCKMORTON v. HOLT.
(Supreme Court of the United States, 1900. 180 U. S. 552, 21 Sup. Ct. 474,
45 L. Ed. 663.)
This was a proceeding in the supreme court of the District of Colum-
bia for the purpose of proving an alleged will of the late Joseph Holt,
a distinguished lawyer and for many years Judge Advocate General of
the United States Army, who died at the age of eighty-seven, in Wash-
ington on August 1, 1894, after a residence of many years in that
city. The proceeding resulted in the rejection of the paper on the
ground that it was not the will of Judge Holt but was a forged docu-
ment, and judgment refusing probate was entered upon the verdict of
the jury. The proponents of the will appealed to the court of appeals
of the District, but before the appeal was brought on for argument
Miss Hynes, one of the legatees named in the will, withdrew her ap-
peal. The judgment of the supreme court upon the appeal of the
other proponents was subsequently affirmed by the court of appeals,
and the proponents of the paper, excepting Miss Hynes, have brought
the case here by writ of error. 39
Peckham, J. * * * The two points above indicated in which we
think the trial court fell into error require the reversal of this judgment
and the granting of a new trial, but there are other questions in the case
which are fully presented by the record, and which have been most
ably and exhaustively argued by counsel on both sides. These questions
will necessarily arise at the very threshold of the case when it comes
on for trial again, and we think it is our duty to express our views in
relation to them. They relate to certain evidence upon the issues of
forgery and revocation.
And first, as to forgery. The paper in question was propounded as
the will of Joseph Holt.
The facts set forth in the statement prefixed to this opinion show the
case to be one of an extraordinary nature. There being no proof in
regard to the history or whereabouts of the paper before it was re-
ceived by the register of wills, and the evidence pro and con as to its
genuineness having been received upon the trial, the question arises as
to the admissibility of the various declarations of the deceased, and
» e Statement condensed and part of opinion omitted.
702 HEARSAY (Ch. 3
also of his letters to different relatives living in Kentucky and other
states, which it is claimed tend to show the improbability of the deceased
making such a disposition of his property as is made in the paper in
controversy. (They are referred to in the statement of facts above
given.) The question is, in other words, Can the contestants prove
by unsworn oral declarations and by letters of the deceased facts from
which an inference is sought to be drawn that the disposition of the
property as made in the paper is improbable, and that the paper was
therefore a forgery? The decisions of the state courts as to the ad-
missibility of this kind of evidence are not in accord. Many of them
are cited in the margin. 40 Those included in class A favor the exclu-
sion of such evidence, while those in class B favor its admission.
The principle of exclusion was favored by Chancellor Kent, and also
by Justices Washington, Story, Livingston, and Thompson, all of
whom once occupied seats upon the bench of this court.
The cases cited in the two classes do not all, or even a majority of
them, deal with the question of forgery, but many of them treat the
subject of declarations of a deceased person upon a principle which
would admit or exclude them in a case where forgery was the issue.
It is not possible to comment upon each of the cases cited in these
lists, without unduly extending this opinion. We can only refer to the
two classes generally, and state what we think are the questions de-
cided by them.
40 Class A. Bovlan v. Meeker. 28 N. J. Law, 274; Rusling v. Rusling, 36
N. J. Eq. 603; Gordon's Case, 50 N. J. Eq. 397, 424, 26 Atl. 268; Hayes v.
West, 37 Ind. 21 ; Kennedy v. Upshaw, 64 Tex. 411 ; Mooney v. Olsen. 22
Kan. 69; Thompson v. Updegraff, 3 W. Va. 629; Couch v. Eastham, 27 W.
Va. 796, 55 Am. Rep. 346; Dinges v. Branson, 14 W. Va. 100; Gibson v.
Gibson, 24 Mo. 227 ; Cawthorn v. Haynes, 24 Mo. 236 ; Walton v. Kendrick,
122 Mo. 504, 25 L. R. A. 701, 27 S. W. 872; Comstock v. Hadlyme Ecclesi-
astical Soc, 8 Conn. 254, 263, 20 Am. Dec. 100 ; Shailer v. Bumstead, 99 Mass.
112; Lane v. Moore, 151 Mass. 87, 23 N. E. S28, 21 Am. St. Rep. 430; Robin-
son v. Hutchinson, 26 Vt. 38, 60 Am. Dec. 298; where the evidence was re-
ceived, but the inquiry was as to mental capacity, the testatrix being greatly
broken and enfeebled in mind and capacity and of advanced age ; Jackson
ex dem. Coe v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; Jackson ex dem.
Brown v. Betts, 6 Cow. (N. Y.) 377; Waterman v. Whitney, 11 N. Y. 157,
62 Am. Dec. 71, citing many cases; Johnson v. Hicks, 1 Lans. (N. Y.) 150;
Marx v. McGlynn, SS N. Y. 357; Leslie v. McMurtry, 60 Ark. 301, 30 S. W.
33; Den ex dem. Stevens v. Vancleve, 4 Wash. C. C. 262, Fed. Cas. No. 13,-
412; Provi^ v. Reed, 5 Bing. 435; 1 Redf. Wills, 4th ed. pp. 556, 557; Gil-
lett, Ev. § 281 ; Schouler, Wills, 3d ed. § 317a.
Class I'-. Turner v. Hand. .", Wall. Jr., SS, 92, 107. Fed. Cas. No. 14,257;
Johnson v. Brown, 51 Tex. 65; Swope v. Donnelly, 190 Pa. 417, 42 Atl. SS2,
70 Am. St. Rep. 637; Taylor Will Case, decided by surrogate of New York
count v, 10 Abb. Prac. (N. S.) 300, 306. This case was reversed sub nom.
Howland v. Taylor, in the court of appeals on a question of fact, but no
opinion is reported; 53 N. Y. 627; Davis v. Elliott, 55 N. J. Eq. 473, 36 Atl.
L092; claimed by respondents to be adverse to Boyian v. Meeker, which is
Q0 1 referred to, 'neither Is the question Itself discussed, although evidence
of this nature seems to have been received, without objection; Iloppe v.
Byers, 60 M«l. 381 ; Burge v. Hamilton, 72 Ga. 568, 624; Sugden v. St. Leon-
ards, L. R. 1 Prob. l»i\. L54; Collagan v. Burns, 57 Me. 449, by an equally
divided court; 1 Phillim., EccL Rep. 447-100.
Sec. 2) RECOGNIZED EXCEPTIONS 703
In the cases contained in class A, it is held that declarations, either
oral or written, made by a testator, either before- or after the date of
the alleged will, unless made near enough to the time of its execution
to become a part of the res gestae, are not admissible as evidence in
favor of or against the validity of the will. The exception n to the
rule as admitted by these cases is that where the issue involves the
testamentary capacity of the testator, and also when questions of undue
influence over a weakened mind are the subject of inquiry, declarations
of the testator made before or after, and yet so near to the time
of the execution of the will as to permit of the inference that the same
state of mind existed when the will was made, are admissible for the
purpose of supporting or disproving the mental capacity of the testa-
tor to make a will at the time of the execution of the instrument pro-
pounded as such. These declarations are to be admitted, not in any
manner as proof of the truth of the statements declared, but only for
the purpose of showing thereby what in fact was the mental condition,
or, in other words, the mental capacity, of the testator at the time
when the instrument in question was executed.
The cases contained in class B favor generally the admission of dec-
larations of the deceased made under similar conditions in which
declarations are excluded by the cases in class A.
If declarations of the character now under consideration are admis-
sible, when made prior to the execution of the alleged will, although
not after it, then a large part of the evidence in this case as to the
oral and written declarations of the deceased was properly admitted
upon the issue of forgery, because such declarations may have all been
made before the forgery was executed, the date of the paper not fur-
nishing any evidence of the time when it was in fact prepared. The
forger could not be permitted, by giving a date to the instrument, to
fix the time subsequent to which the declarations should be excluded.
But we see no good ground for the distinction. The reasons for ex-
cluding them after the date of the will are just as potent when they
were made prior thereto. When made prior to the will, it is said they
indicate an intention as to a testamentary disposition of property
thereafter to be made, and that such declarations may be corroborative
of the other testimony as to what is contained in the will, as is said by
4i For the use of statements to prove delusions or other mental derange-
ment, see Shailer v. Bnmstead, 99 Mass. 112 (1S6S) ; Waterman v. Whitney.
11 N. Y. 157, 62 Am. Dec. 71 (1854). It is sometimes said that in sue])
there is no hearsay use of the statements, but this is hardly accurate. In
case of an alleged' delusion, obviously no attempt is made to establish the
truth of the fact directly asserted, hut quite the contrary; yet tin- evidence
would be wholly unavailing to establish a delusion except on the bypol
that the speaker believed liis statement to be true: the evidence that be so
believed is the implication contained in an apparently serious statement. If
the proposition to be established is, that T. believed a palpable absurdity,
his assertion in terms of his belief would clearly be classed as hearsay. The
implied assertion of his belief in another term of statement does not -
sufficiently different to exclude it from the hearsay i
704 HEARSAY (Ch. 3
Mellish, L. J. in Sugden v. St. Leonards, L. R. 1 Prob. Div. 154, 251 42
(a case of a lost will), or else they indicate the feeling of the deceased
towards his relatives, from which an inference is sought that a testa-
mentary provision not in accordance with such declarations would
be forged. The declarations are, however, unsworn in either case, and
if they are inadmissible on that ground when made subsequent to the
execution of the will, they would be also inadmissible when made
prior to its execution. In Den ex dem. Stevens v. Vancleve, 4 Wash.
C. C. 262, 265, Fed. Cas. No. 13,412, Mr. Justice Washington said
that declarations of the deceased, prior or subsequent to the execution
of the will, were nothing more than hearsay, and there was nothing
more dangerous than their admission, either to control the construc-
tion of the instrument or to support or destroy its validity. Judge
Pennington concurred in those views.
After much reflection upon the subject, we are inclined to the opin-
ion that not only is the weight of authority with the cases which ex-
clude the evidence both before and after the execution, but the prin-
ciples upon which our law of evidence is founded necessitate that ex-
clusion. The declarations are purely hearsay, being merely unsworn
declarations, and when no part of the res gestae are not within any
of the recognized exceptions admitting evidence of that kind. Al-
though in some of the cases the remark is made that declarations are
admissible which tend to show the state of the affections of the deceased
as a mental condition, yet they are generally stated in cases where the
mental capacity of the deceased is the subject of the inquiry, and in
those cases his declarations on that subject are just as likely to aid
in answering the question as to mental capacity as those upon any
other subject. But if the matter in issue be not the mental capacity
of the deceased, then such unsworn declarations, as indicative of the
state of his affections, are no more admissible than would be his un-
sworn declarations as to any other fact.
When they are not a part of the res gestae, declarations of this na-
ture are excluded because they are unsworn, being hearsay only, and
where they are claimed to be admissible on the ground that they are
said to indicate the condition of mind of the deceased with regard to
his affections, they are still unsworn declarations, and they cannot be
admitted if other unsworn declarations are excluded. In other words,
•♦2 For such a use of a testator's statements, that is, as indicating his in-
tention as a basis for an inference that it was probably carried out in the
will, see Doe v. Palmer, 16 Q. B. 747 (1851). The main point discussed in
the Sugden Case was the use of statements by the testator as to how he had
disposed of his property, etc., as evidence to prove the contents of a lost
will, or at least, to corroborate other evidence of the contents, and this use
was sanctioned. Some doubt was thrown on ibis feature of the case by the
carefully guarded opinions In Woodward v. Goulstone, 11 A. C. 409 (H. of L.
6). Tli ■ Sugden disc has been followed in a number of recent American
Griffith v. Blginbotom, 262 111. L26, 104 N. D. 233, Ann. Cas. 1915B,
250 (1914); .Mann v. Balfour, 187 Mo. 290, 86 S. W. L03 (1905); Clark v.
i urner, 50 Neb. 290, 69 N. W. 843, 88 L. B. A. 438 (1897).
Sec. 2) RECOGNIZED EXCEPTIONS 70S
there is no ground for an exception in favor of the admissibility of
declarations of a deceased person as to the state of his affections,
when the mental or testamentary capacity of the deceased is not in
issue. When such an issue is made, it is one which relates to a state
of mind which was involuntary and over which the deceased had not
the control of the sane individual, and his declarations are admitted,
not as any evidence of their truth but only because he made them, and
that is an original fact from which, among others, light is sought to
be reflected upon the main issue of testamentary capacity. The truth
or falsity of such declarations is not important upon such an issue (un-
less that for the purpose of showing delusion it may be necessary to
give evidence of their falsity), but the mere fact that they were uttered
may be most material evidence upon that issue. The declarations of
the sane man are under his control, and they may or may not reflect his
true feelings, while the utterances of the man whose mind is impaired
from disease or old age are not the result of reflection and judgment,
but spontaneous outpourings arising from mental weakness or de-
rangement. The difference between the two, both as to the manner
and subject of the declarations, might be obvious. It is quite apparent
therefore that declarations of the deceased are properly received upon
the question of his state of mind, whether mentally strong and capable
or weak and incapable, and that from all the testimony, including his
declarations, his mental capacity can probably be determined with con-
siderable accuracy. Whether the utterances are true or false cannot
be determined from their mere statement, and they are without value
as proof of their truth, whether made by the sane or insane, because
they are in either case unsworn declarations. * * *
If not admissible generally, it is as we think inadmissible even as
merely corroborative of the evidence denying the genuine character of
the handwriting. It is open to the same objection in either case as
merely unsworn declarations or hearsay.
We are therefore of opinion that the court below erred in admitting
this evidence upon the issue of forgery, and that the error was of a
most important and material nature. * * *
Judgment reversed. 43
Mr. Justice Harlan, Mr. Justice White, and Mr. Justice McKex-
na agreed with the opinion only upon the first and second grounds
discussed and dissented from the others.
Mr. Justice Brown concurred in the result.
« Contra: State v. Ready, 78 N. J. Law, 599, 75 Atl. 564, 28 L. R. A. (N. S.)
240 (1910), forgery of a will.
For the use of testator's declarations to rebut a charge of fraud or undue
influence, see Compher v. Browning, 219 111. 4129, 76 N. E. 678, 109 Am. S*.
Rep. 346 (1906).
Hint.Ev. — 45
706 HEARSAY (Ch. 3
GREENACRE v. FILBY et al.
(Supreme Court of Illinois, 1916. 276 111. 291, 114 N. E. 536, L. R. A.
191SA, 231.)
CartwrighT, J. 44 The defendant in error, Louise C. Greenacre,
recovered judgment for $3,065 and costs in the circuit court of Kane
county against the plaintiffs in error, Otto F. Filby and Adolph J.
Wiest, keepers of dramshops at Hinckley, in De Kalb county, and the
Aurora Brewing Company, owner of the premises where the dram-
shops were kept, for injuries to her means of support by the death
of her husband, Frank Greenacre, alleged to have been caused by his
intoxication. The Appellate Court for the Second District affirmed
the judgment, and the record has been brought to this court by writ
of certiorari.
Frank Greenacre, the husband of the plaintiff, was a buyer and
shipper of live stock at Hinckley, in De Kalb county. At about 11 :52
in the night of November 15, 1913, the "Oriental Limited," a fast
passenger train of the Burlington Railroad, which did not stop at
Hinckley, passed through the village going west, and as the train was
going around a curve east of the depot the engineer saw Greenacre
lying across the track. The engine was a short distance away, so
that it was impossible to stop the train and Greenacre was run over
and killed. The questions of fact in dispute at the trial were whether
Greenacre was so intoxicated as to be unable to exercise care and
caution for his own safety, and whether he was on the track in con-
sequence of such intoxication or went upon the track with the inten-
tion of committing suicide. These questions were determined by the
judgment of the Appellate Court unless prejudicial error was com-
mitted by the trial court. * * *
The defendants offered witnesses to testify to declarations of Green-
acre at different times during the two years before his death as tend-
ing to prove an intention to commit suicide at the time he was killed,
for the purpose of showing that he was on the railroad track with a
suicidal intention. The witnesses were examined out of the presence
of the jury, and their testimony was rejected. * * *
The argument against the ruling of the court is, that the circum-
stances proved were such that Greenacre might have been on the
track either in consequence of his intoxicated condition or with an
intention to commit suicide, and that his declarations, made at dif-
ferent times before that, were admissible as proof that he then had
an intention to commit suicide. It is true that the state of mind of a
son, like the state or condition of the body, is a fact to be proved
like any other fact, whenever it is relevant to the issue to be tried.
It is necessarily shown by some external manifestation; either by an
appearance of anger, fear, hatred, or some other mental emotion, or
** Part of opinion omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 707
some declaration showing the fact. If the offered testimony of dec-
larations made by Greenacre at other times, neither connected with or
explanatory of any act nor preliminary to or in preparation for any
act, was admissible as proof of an intention to commit suicide at the
time he was' killed, then it was a legitimate means of proof to show
what Greenacre said about it. On the question here presented this
court, in Siebert v. People, 143 111. 571, 32 N. E. 431, upon a full
consideration of the question and authorities, adopted the rule that
declarations of a deceased person that he had intended to take his own
life, when not a part of the res gestae nor accompanied by any act
which they might serve to explain and which do not characterize any
transaction, are not admissible in evidence.
It is argued that the decision in the Siebert Case as to the admissi-
bility of the evidence was caused or influenced by the fact that the
arsenic found in the stomach of the deceased was administered at a
time when it was impossible for him to procure or take it himself.
That fact was considered by the court on the issue of fact, but, of
course, it did not determine the admissibility of evidence, and the legal
question whether the evidence was competent was stated by the court
and determined upon a full consideration of the authorities and the
law. The court adopted the rule of Commonwealth v. Felch, 132
Mass. 22, although it was said that the decision had been overruled
in Commonwealth v. Trefethen, 157 Mass. 185, 31 N. E. 961, 24 L-
R. A. 235. The decision in the Siebert Case was indorsed in How-
ard v. People, 185 111. 552, 57 N. E. 441, where it was held that there
was no error in excluding conversations with the deceased as to when,
where, and by whom the act causing her death was committed. It is
true that the questions called for answers tending to prove the fact in
controversy, but that is equally true of the evidence offered in this
case. The argument for its admission is that the declarations were
so related to the event that they tended to prove the fact of suicide
and were admissible on account of their relevancy to that alleged fact.
In Clark v. People, 224 111. 554, 79 N. E. 941, it was held that declara-
tions of the deceased, made over a year before her death, of her in-
tention, under certain circumstances, to commit such an act as was
committed which caused her death, were not competent, and the de •
cisions in the Siebert Case and the Howard Case were approved.
It is again urged that the court there found that it was not probable
or possible that the deceased did cause her own death, but that was
also upon consideration of the question of guilt or innocence, and
not concerning a rule of the law of evidence. It was not decided in
these cases that declarations of intention are never competent, and it
had already been decided in Riggs v. Powell, 142 111. 453, 32 N. E.
482, where a widow held a note indorsed by her deceased husband
which she claimed as a gift, that it was competent to prove his dec-
larations in reference to providing for his wife, to show that such a
gift as was claimed might probably have been made because the gift
708 HEARSAY (Ch. 3
was consistent with the avowed purpose and feeling of the husband.
Afterward, in Towne v. Towne, 191 111. 478, 61 N. E. 426, it was
deemed competent to prove declarations by the owner of a certificate
in a benefit society concerning the beneficiaries, showing that he did not
know of the mistake in the certificate. It was said that the declara-
tions were not competent evidence of the fact that the certificate was
made out as he said it was, but it was material to know whether he
knew of the mistake or acquiesced in it, and his declarations on that
subject were competent evidence. In Treat v. Merchants' Life Ass'n,
198 111. 431, 64 N. E. 992, which was an action on a life policy, it was
claimed that the insured committed suicide, and it was held error to
refuse to permit the agent who took the application to testify that the
insured, immediately after signing it and before the policy was de-
livered, asked if the company paid losses on suicide, and, on the an-
swer that it did not, made some remark about canceling the applica-
tion. The statement was made while engaged in the transaction and
was considered competent to show what was in the mind of the in-
sured at the time he made the contract by taking out the insurance.
In Nordgren v. People, 211 111. 425, 71 N. E. 1042, it was charged
that the accused gave his wife a .bottle of whisky and strychnine, and
it was held competent to prove that she kept whisky and strychnine
in her room, and," as an explanation of her act, that she made declara-
tions when despondent tending to show her intention to commit sui-
cide. The declarations were not regarded competent as original evi-
dence that she committed suicide, but as explanatory of the act of
keeping in her room bottles of whisky and strychnine poison. * * *
The decisions in this state are in harmony and we are satisfied with
the rule established by them.
Evidence that when Greenacre was going home he declared his
intention to go home, kiss his wife and babies, and go to sleep was
competent and was admitted as showing his last declared intention in
connection with his act. 46 If in every case where one since deceased
considered at any time the question to be or not to be, with an in-
45 Foster v. Shepherd, 258 111. 164, 101 N. E. 411, 45 I,. R. A. (N. S.) 167, Ann.
Oas. L91 IB, 572 (1913), presented a similar problem. In order to account for
the presence of the deceased at the place where he was killed, plaintiff claim-
ed that he was on his way to spend the night at the home of his mother, and
for this purpose offered statements of his intention so to do, made during the
same evening about three hours before his death. The court held that such
statements were not admissible, saying: "Counsel for defendant in error now
insist that this testimony was competent as a part of the res gestae, and cite
authority to the effect that proof may be offered to show statements made by
a deceased person at the time of his departure or starting upon a journey,
in reference to his destination. This is the law, but in order to be considered
a part of the res gestae the statement made must be immediately connected
win, iii,. an df departure. Chicago & Eastern Illinois Railroad Co. v. Chan-
cellor, L65 111. 438, 1<; N. E. 269 (1897). In (his ease the statement was made
aboul eight o'cloch in t lie evening, whereas Ralph Foster did not finally leave
his -tore until at least half-past ten o'clock, and in the meantime he was in
various parts of 'he village of Lovington. The statement was not competent
as a part of the res gestae."
Sec. 2) RECOGNIZED EXCEPTIONS 709
clination or decision toward the negative, his declarations neither
connected with any act nor preliminary to or preparatory for any act
could be proved, it would open a limitless field of inquiry as to the
circumstances under which the declarations were made and whether in
normal conditions or at times of exceptional misfortune, discourage-
ment, and despondency. It would raise all sorts of psychological ques-
tions of mental states and intentions at different times and changes of
intention from external conditions. * * *
Judgment affirmed.
PEOPLE v. HILL.
(Court of Appeals of New York, 1909. 195 N. Y. 16, 87 N. E. 813.)
Haight, J. 46 The defendant, Pacy Hill, has been convicted of the
crime of murder in the first degree committed at the city of Olean, Cat-
taraugus county, on the 18th day of March, 1908, by inflicting two bul-
let wounds, one in the hand and the other in the breast of Chloa Han-
cock, from the effects of which she died on the 21st day of March
thereafter.
The facts constituting the crime are without substantial contro-
versy. * * *
The defense interposed was that of insanity. The claim of the de-
fendant's counsel is, in substance, that his father was subject to epilep-
tic seizures ; that one of his sisters was weakminded ; and that he him-
self had been given opium in his infancy, and that the drug had been
used by him to some extent up to the time of his becoming 12 years of
age, and that he had had a number of epileptic seizures. The evidence
upon this branch of the case was chiefly by his relatives, and was sharp-
ly controverted also by his relatives. The medical experts also clashed
upon the subject. The defendant's expert, Dr. Putnam, reached the
conclusion that at the time of the shooting the defendant was in an
epileptoid state, the psychic equivalent of epilepsy or double conscious-
ness ; that persons in that state act automatically. They go about, eat,
buy a railroad ticket, go from one town to another, and when they
emerge from that condition they have no recollection of what had oc-
curred or where they are. While in that condition they have no motive
nor normal consciousness of the things they may do or the acts they
may commit, and consequently they are irresponsible, and are unable
to know the nature or quality of their acts or that they were wrong.
* * *
Our attention has been called to a number of exceptions that were
taken by the defendant upon the trial. We have examined them all
with care, but shall here discuss only those which we regard as most
material. Upon the examination of Dr. Putnam, the defendant's coun-
ts Part of opinion omitted.
710 HEARSAY (Cll. 3
sel sought to show by him the statements that were made by the de-
fendant at the time that he examined him, which was long after the
alleged homicide, for the purpose of determining whether or not he
was insane. He had testified that he had a talk with the defendant
about the conversations he had with the chief of police immediately
following the shooting, and was then asked the question : "Did he tell
you whether or not he had any remembrance of them?'' This he an-
swered in the affirmative, and was then asked the question : "What
did he tell you?" To this the district attorney interposed an objection
upon the ground that the defendant's own statements in his own be-
half were not competent even as a basis of expert testimony, and the
objection was sustained. In another place the declarations of the de-
fendant were fully given, and therefore the exclusion of them here
may not be material, but we have concluded to examine the question.
It will be observed that they pertain to what he had stated with refer-
ence to his recollection after the shooting had occurred, not before.
In the case of People v. Hawkins, 109 N. Y. 408, 410, 17 N. E. 371,
Danforth, J., in delivering the opinion of the court, says : "The prison-
er's declaration in November as to his condition in September was not
competent as evidence of his actual condition at that time, nor could
it be the basis of a scientific opinion as to whether he was sane or insane
at that period. Had the question related to his condition at the time
of the interview, the result might be quite different. Everything said
or done at a given period serves to disclose the mental state of the ac-
tor, but his narration as to what he said or did, or of his feelings or
bodily ailments upon a former occasion, furnishes no foundation for an
opinion as to his actual state or condition at that time. It is of no high-
er grade than the declarations of third persons as to a past transaction,
and in like manner is inadmissible." In the case of People v. Strait,
148 N. Y. 566, 42 N. E. 1045, we had occasion to examine the subject
again and the authorities thereon, both in this and in other states
and we there reached the conclusion that a physician may acquire facts
from his own observations in the examination of a person, and that
there was much in the action, conduct, and appearance of a person that
aids the physician in forming a conclusion as to his sanity. The facts
so acquired the physician may himself give in evidence, at least so far
as they can be described ; but an expert witness cannot be permitted
to give an opinion as to the mental condition of a person at the time
of the commission of a criminal act, based upon a statement not in evi-
dence, made by a party in his own behalf after the commission of the
act, which pertains to his past conduct. See, also, People v. Furlong,
187 N. Y. 198, 79 N. E. 978. It would thus seem to appear that the
declarations of the defendant made to the physician as to his recollec-
ms of transactions after the alleged homicide, but long before the
lime of the interview with the physician, were not competent. * * *
Judgment affirmed.
Sec. 2) RECOGNIZED EXCEPTIONS 7J 1
STATE v. ILGENFRITZ et al.
(Supreme Court of Missouri, 1915. 263 Mo. 615, 173 S. W. 1041, Ann. Cas.
1917C, 366.)
Williams, C. 47 Under an indictment charging them jointly with
the murder of Jacob W. Davis, defendants were tried in the circuit
court of Adair county and found guilty of murder in the second de-
gree. The punishment of defendant Ilgenfritz was assessed at 15 years
and that of defendant Lottie Davis at 10 years. Defendants duly per-
fected an appeal to this court. * * *
II. The defendants offered to prove by witness Williams, the sher-
iff of Adair county, at the time of the tragedy, that, either on Friday
preceding the killing, or on the day of the killing, deceased stated that
he intended to kill himself and wife, and that deceased repeated the
threat in the presence of the witness two or three times. The state
objected to the offer on the ground that the evidence was hearsay and
therefore immaterial. The court sustained the objection and excluded
the offer, and defendants saved an exception. This ruling is assigned
as error. There was no evidence of self-defense in the case. Neither
was there evidence that this threat to kill Mrs. Davis had been com-
municated to her. It therefore could not be said, as insisted by appel-
lants, that it became relevant as explaining Mrs. Davis' failure to go
outside of her home after the shots were fired, to ascertain just what
had occurred. The court therefore did not err in excluding the de-
ceased's threats to kill his wife.
But the point concerning the admissibility of the threats of de-
ceased to commit suicide presents a more serious question, and one
that leads us into the realm of conflicting authorities.
The cause of deceased's death was the difficult question to be de-
termined by the triers of the facts. The evidence offered pro and con
was wholly circumstantial. There was circumstantial evidence tending
to corroborate the theory of the state, at least with reference to the im-
plication of defendant Ilgenfritz in the killing. There was also cir-
cumstantial evidence corroborating the defense's theory of suicide. It
may be conceded therefore that, under such conditions, any com-
petent evidence tending to corroborate the theory of suicide would be
very material and relevant to the issues involved. Was the testimony,
under the circumstances, admissible? Upon careful consideration, we
have reached the conclusion that it was. At the outset we are met by
the following authorities which hold the contrary view : State v. Pun-
shon, 124 Mo. 448, loc. cit. 457, 27 S. W. 1111 ; State v. Fitzgerald, 130
Mo. 407, loc. cit. 429, 32 S. W. 1113; State v. Punshon, 133 Mo.
44, loc. cit. 52, 34 S. W. 25 ; State v. Bauerle, 145 Mo. 1, loc. cit. 25,
*t Part of opinion omitted.
712 HEARSAY (Ch. 3
46 S. W. 609; Siebert v. People, 143 111. 571, loc. cit. 534, 32 N. E.
431; Nordgren v. People, 211 111. 425, loc. cit. 433, 71 N. E. 1042.
On the other hand, the following authorities hold that such evi-
dence, under the present circumstances, is admissible : Commonwealth
v. Trefethen, 157 Mass. 180, loc. cit. 188, 31 N. E. 961, 24 L. R. A.
235 ; People v. Conklin, 175 N. Y. 333, loc. cit. 343, 67 N. E. 624; State
v. Beeson, 155 Iowa, 355, loc. cit. 362, 136 N. W. 317, Ann. Cas.
1914D, 1275; Shaw v. People, 3 Hun, 272, loc. cit. 276; Nordan v.
State, 143 Ala. 13, loc. cit. 26, 39 South. 406 ; Blackburn v. State, 23
Ohio St. 146, loc. cit. 165/ 166; Boyd v. State, 14 Lea (Tenn.) 161, loc.
cit. 175; State v. Kelly, 77 Conn. 266, loc. cit. 268, 58 Atl. 705; 3
Current Law, p. 1654; 5 Columbia Law Review, 157; 1 Wigmore
on Evidence, par. 143; 3 Bishop's New Criminal Procedure, par. 631
(5) ; 1 Wharton's Criminal Evidence, par. 237a.
The cases which hold such evidence inadmissible do so on the
theory that the threats of suicide are hearsay. The only case in this
state which undertakes to discuss the point at any length is the case
of State v. Fitzgerald, 130 Mo. 407, loc. cit. 429, 32 S. W. 1113. An
examination of that opinion, however, will disclose that such evidence
was admitted in that case, and the entire discussion is based upon a
supposed case. The decision of the point was therefore not neces-
sary to a determination of that case, and the ruling was obiter dictum.
This case appears to have been cited by the later cases without fur-
ther discussion. The conclusion stated in the Fitzgerald Case was that
threats of suicide in such cases are not admissible unless they were a
part of the res gestae or dying declarations, or unless at the time made
they were accompanied by an attempt to carry the threat into execu-
tion. As to why such threats, when accompanied by unsuccessful at-
tempts at execution, would then lose their hearsay nature and become
proper evidence, the authorities taking that view do not give a sat-
isfactory explanation, and it is indeed difficult to discover any logical
reason therefor.
It appears that the error in the logic of the opinions holding such
threats inadmissible occurs in assuming that such threats are merely
hearsay. The probability of suicide would be stronger if it could be
shown that deceased had a suicidal intent or design. The existence of
such an intent or design would therefore become a material fact bearing
upon the issues involved. This intent or design is a mental condition
and could be evidenced only by deceased's acts or words. All author-
ities would perhaps agree in saying that any unsuccessful attempt at
self-destruction would be admissible as original evidence of the ex-
istence of suicidal intent. We see no distinction between such acts and
any "verbal acts" which also indicate the same mental state or. con-
dition. It might be said that the verbal act was not worthy of belief
because it could be made when the declarant had no such intention.
As much could also be said concerning an act amounting to an unsne-
Sec. 2) RECOGNIZED EXCEPTIONS 713
cessful attempt at suicide, for it is not impossible that such acts could
be feigned. But since the greater probability is that both are but the
direct result of the mental state, their exclusion should not be based
upon a mere possibility of error. And even though it be conceded,
arguendo, that the verbal acts were less trustworthy than the acts
amounting to an attempt of suicide, yet, as was well said in the case
of Commonwealth v. Trefethen, supra, 157 Mass. loc. cit. 188, 31 N.
E. 964, 24 L. R. A. 235, "this affects only the weight of the evidence,"
and not its admissibility.
Suicidal threats are verbal acts, not narrative in character and there-
fore hearsay, but are the direct result of the action of the mind having
the suicidal intent or design, and, in cases like the present, should be
admitted as original evidence of the condition of the mind from which
they .spring. This is the theory of the case of Commonwealth v.
Trefethen, supra, the leading case holding such evidence admissible.
In that case the testimony excluded was the threat of deceased that
she was going to drown herself. The court set aside the verdict on
the ground that the exclusion of such evidence was error. In the
course of its opinion, the court said :
"Although evidence of the conscious voluntary declarations of a
person as indications of his state of mind has in it some of the ele-
ments of hearsay, yet it closely resembles evidence of the natural
expression of feeling which has always been regarded in the law, not as
hearsay, but as original evidence. 1 Greenl. Ev. 102. And, when the!
person making the declarations is dead, such evidence is often not only '
the best, but the only, evidence of what was in his mind at the time.
On principle, therefore, we think it is clear that, when evidence of
the declarations of a person is introduced solely for the purpose of
showing what the • state of mind or intention of that person was at
the time the declarations were made, the declarations are to be regarded
as acts from which the state of mind or intention may be inferred in
the same manner as from the appearance of the person or his be-
fiavior, or his actions generally. In the present case the declaration,
evidence of which was offered, contained nothing in the nature of nar-
rative, and was significant only as showing the state of mind or inten-J
tion of the deceased." (Italics ours.)
The above case has been many times cited with approval by the
courts and text-writers above cited, and, after careful research into
the subject, we have reached the conclusion that it states the correct
rule regarding the admissibility of such evidence. It therefore fol-
lows that the above-cited Missouri cases, in so far as they conflict with
what is herein decided, should be no longer followed. * * *
Judgment reversed. 48
*s Compare the treatment of the question of threats by a third person in
State v. Taylor. 136 Mo. 66, 37 S. W. 907 (1S96) ; State v. Barriugton, 19b Mo.
23, 95 S. W. 235 (1906).
714 HEARSAY (Ch. 3
(B) As to Physical Condition
CALDWELL v. MURPHY.
(Court of Appeals of New York, 1S54. 11 N. Y. 416.)
The plaintiffs obtained a verdict for damages in the court below on
account of personal injuries due to the negligence of the defendant. 49
Denio, J. * * * In answer to a question to a witness by the
plaintiff's counsel as to the condition of the plaintiff's health since the
accident, the witness answered: "He has invariably complained."
The defendant requested to have this answer stricken out; but the
court refused to strike it out, and the defendant excepted. It ap-
peared by the other testimony of this witness that he had attended
upon and taken care of the plaintiff from the time of the accident for
about ten or eleven days, and had assisted him in rising from his
bed and getting down stairs, and had seen him repeatedly since. It
was also proved by a physician that he was injured internally, as was
shown by bloody discharges from his bowels. I am of opinion that
the evidence objected to did not fall within the rule which excludes
the declarations of a party in his own favor. It is one of the natural
concomitants of illness and of physical injuries for the sick or injured
person to complain of pain and distress. A complaint, it is true, may
be simulated, but it is generally real. I think such evidence is ad-
missible from the necessity of the case, and that it may safely be left
to the jury in connection with the other evidence touching the al-
leged sick or injured person's condition. In a somewhat similar case
Lord Ellenborough said: "If inquiries of patients by medical men,
with the answers to them, are evidence of the state of health of the
patients at the time, this must be evidence. What were the com-
plaints, what the symptoms, what the conduct of the parties them-
selves at the time, are always received in evidence upon such inquiries
and must be resorted to from the very nature of the thing." Aveson
v. Kinnaird, 6 East, 188. See, also, the cases cited in Cowen & Hill's
Xotes, p. 5S7, note 447 ; 1 Greenl. Ev. § 102, and the cases referred to
in the notes.
The charge of the judge responded accurately to the several requests
for instructions, so far as the evidence raised the questions suggested
by the defendant's counsel ; and, upon the whole, I am of opinion that
no error was committed upon the trial. The judgment should be af-
firmed.
Judgment affirmed.'
49 statement condensed and part of opinion omitted.
i D der the same theory complaints by a third person who would not have
been a competent witness have Imi-m ivivm-d— e. 'A- Awson v. Kinnaird, 8
i. : ,-t L88 (1805), wife's statements In an action by the husband; Man- v. Hill.
in Mo. 321 (1847), statements by u slave in an action for breach of warranty
of soundn<
Sec. 2) RECOGNIZED EXCEPTIONS 715
INHABITANTS OF ASHLAND v. INHABITANTS OF
MARLBOROUGH.
(Supreme Judicial Court of Massachusetts, 18C8. 99 Mass. 47.)
Action to recover the expense of supporting W. H. Maynard, a
pauper.
Among other evidence offered, and admitted against the objection
of the defendants, one witness, not a physician, testified that Maynard,
while in his employment before enlisting, said one day that "he had
seen Dr. Jackson, who told him he had got a bad thing on him, and
that his kidneys were diseased;" and that, another day after Maynard
had been discharged from the service, the witness asked him what
ailed him, and he said "his old complaint before he went into the
army;" and another witness, who also was not a physician, testified
that Maynard, before enlisting, "did not appear like a well man."
The jury returned a verdict for the plaintiffs; and the defendants
alleged exceptions. 61
Chapman. J. The question in issue between the parties was, wheth-
er Maynard who enlisted into the service of the United States on the
2d of July 1861, became disabled by disease contracted in the serv-
ice, or whether he had the disease before he enlisted. One species
of the evidence which was offered to prove that he was diseased before
he enlisted was his own language. The principle which applies to
such evidence is stated in Bacon v. Charlton, 7 Cush. 586. 52 Evi-
ci Statement condensed.
52 in this case evidence had been admitted to the effect that plaintiff made
exclamations of pain on the way home from the place of the accident, and
that he complained of pain in the injured parts for three or four days. In
approving this ruling, Bigelow, J., observed: "Such evidence, however, is not
to be extended beyond the necessity on which the rule is founded. Any thing
in the nature of narration or statement is to be carefully excluded, and the
testimony is to be confined strictly to such complaints, exclamations and ex-
pressions as usually and naturally accompany, and furnish evidence of, a
present existing pain or malady. Of course, it will always be for the jury to
judge whether such expressions are real or feigned, which can be readily as-
certained by the manner of them, and the circumstances under which they
are proved to have been made. The ruling of the court below on this point
was strictly in conformity with the rules of law. and was properly guarded
and limited. 1 Greenl. Ev. § 102: Aveson v. Lord Kinnaird, 6 East. 18S [1S05].
These remarks as to the limitation of the rule are not intended to apply to
the statements made by a patient to a medical man, to which a different rule
may be applicable."
This dictum was commented on with approval in Barber v. Merriam, 11 Al-
len, 322 (1S65), though it does not appear that any statements of past condi-
tion were admitted in that case.
The dictum was repeated by Endicott, J., in Roosa v. Boston Loan Co.. 132
Mass. 439 (1SS2), in the following form: "While a witness not an expert, can
testify only to such exclamations and complaints as indicate present existing
pain and suffering, a physician may testify to a statement or a narrative giv-
en by his patient in relation to his condition, symptoms, sensations and feel-
ings, both past and present.''
Whether this accurately represents the accepted rule in Massachusetts Is
not clear. Compare Fleming v. Springfield, 151 Mass. 520, 28 N. E. 910, 'Jii
Am. St. Rep. 2G8 (1S91).
TIG HEARSAY (Ch. 3
dence of the usual and natural expression of present feelings or emo^
tions is admissible, though it consist wholly or partly of words. But
such evidence is not to be unnecessarily extended, and is not to in-
clude narration of what is past. A physician, who is called as an
expert, may testify to the statements which a sick or injured person
made to him as his patient, for the purpose of obtaining his profes-
sional aid, as to the character and seat of his injuries and sensations,
and describing his condition and symptoms. Barber v. Merriam, 11
Allen, 322. But a physician's testimony cannot include a recital of
past events which his patient made to him. Chapin v. Marlborough,
9 Gray, 244, 69 Am. Dec. 281 ; Emerson v. Lowell Gaslight Co., 6
Allen, 146, 83 Am. Dec. 621.
A person who is not an expert may testify to the acts and appear-
ance of another which indicate disease or disability, or the contrary;
but may not give opinions on the subject.
Upon the principles above stated, the evidence of Maynard's state-
ment as to what Dr. Jackson had told him ; and as to his having had|
a complaint before B3 he went into the army ; and the opinion of a
witness who was not an expert that he did not appear like a well man;
were inadmissible.
It is not necessary to state the application of these principles to
every particular of the evidence offered, for upon a new trial the evi-
dence may be varied ; and the principles stated are sufficient guides in
the admission or exclusion of evidence.
Exceptions sustained.
TRAVELERS' INS. CO. OF CHICAGO v. MOSLEY.
(Supreme Court of the United States, 18G9. 8 Wall. 397, 19 L. Ed. 437.)
Mr. Justice Swayne 64 delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for
the Northern District of Illinois. The action was upon a policy of in-
surance. It insured Arthur H. Mosley against loss of life, or per-
sonal injury by any accident within the meaning of the instrument, and
was issued to Mrs. Arthur H. Mosley, the wife of the assured, for
her benefit. The declaration was in assumpsit. The defendant plead-
ed the general issue, and the cause was tried by a jury. The plaintiff
sa Bellows, J., In Taylor v. Grand Trunk Ry. Co., 48 N. H. 304, 2 Am. Rep.
229 (1860) : "Tested by these rules the statement of Miss Taylor that she had
not had any rest was not strictly admissible. It is true, as suggested by
plaintiff's counsel, that there is included in the expression the idea that she
was then unable to sleep, and so far it would not be objectionable; but il
relates also to time that was past, and if admitted it would be difficult to tell
Where to stop. Still it does not seem to be at all material, and on that ground
■re mould hesitate to set aside the verdict for that cause."
■ Statement and part of opinion of Swayne, J., and opinion of Clifford, J.,
omitted.
Sec. 2) RECOGNIZED EXCEPTIONS T17
recovered. During the trial, a bill of exceptions was taken by the
plaintiff in error, by which it appears that the contest between the par-
ties was upon the question of fact, whether Arthur H. Mosley, the as-
sured, died from the effects of an accidental fall down stairs in the
night, or from natural causes.
The defendant in error was called as a witness in her own behalf,
and testified, "that the assured left his bed Wednesday night, the 18th
of July, 1866, between 12 and 1 o'clock ; that when he came back, he
said he had fallen down the back stairs, and almost killed himself;
that he had hit the back part of his head in falling down stairs;
* * * she noticed that his voice trembled; he complained of his
head, and appeared to be faint and in great pain."
To the admission of all that part of the testimony which relates to
the declarations of the assured, about his falling down stairs, and the
injuries he received by the fall, the counsel of the defendants objected.
The court overruled the objection, and the defendants excepted.
William H. Mosley, son of the assured, testified, in behalf of the
plaintiff, "that he slept in the lower part of the building, occupied by
his father ; that about 12 o'clock of the night before-mentioned, he saw
his father lying with his head on the counter, and asked him what was
the matter ; he replied, that he had fallen down the back stairs and hurt
himself very badly." The defendants objected to both the question
and answer. An exception to their admission followed.
The same witness testified further, "that on the day after the fall, his
father said he felt very badly, and that if he attempted to walk across
the room, his head became dizzy ; on the following day, he said he was
a little worse, if anything." The admission of this testimony also was
excepted to by the defendants.
This statement presents the questions which we are called upon to
consider. They are, whether the court erred in admitting the decla-
rations of the assured, as to his bodily injuries and pains, and whether
it was error to admit such declarations, to prove that he had fallen
down the stairs.
It is to be remarked, that the declarations of the former class all re-
lated to present existing facts at. the time they were made.
Those of the latter class were made immediately, or very soon after
the fall; the declarations to his son, before he returned to his bed-
room ; those to his wife, upon his reaching there.
Wherever the bodily or mental feelings of an individual are material
to be proved, the usual expressions of such feelings are original and 1
competent evidence. Those expressions are the natural reflexes of
what it might be impossible to show by other testimony. If there be
such other testimony, this may be necessary to set the facts thus de-
veloped in their true light, and to give them their proper effect. As
independent explanatory or corroborative evidence, it is often indis-
pensable to the due administration of justice. Such declarations are
regarded as verbal acts, and are as competent as any other testimony,
718 HEARSAY (Ch. 3
when revelant to the issue. Their truth or falsity is an inquiry for the
jury-
In actions for the breach of a promise to marry, such evidence is al-
ways received to show the affection of the plaintiff for the defendant
while the engagement subsisted, and the state of her feelings after it
was broken off; and in actions for criminal conversation, to show the
terms upon which the plaintiff and his wife lived together before the
cause of action arose. Upon the same ground, the declarations of the
party himself are received to prove his condition, ills, pains, and symp-
toms, whether arising from sickness, or an injury by accident or vio-
lence. If made to a medical attendant, they are of more weight than
if made to another person. But to whomsoever made, they are compe-
tent evidence. Upon these points, the leading writers upon the law of
evidence, both in this country and in England, are in accord. 1 Green-
leaf on Evidence, § 102 ; 1 Phillips on Evidence (last ed.) p. 183 ; 1
Taylor on Evidence, 478, § 518.
There is a limitation of this doctrine that must be carefully observed
in its application.
Such evidence must not be extended beyond the necessity upon which
(he rule is founded. It must relate to the present, and not to the past.
Anything in the nature of narration must be excluded. It must be
confined strictly to such complaints, expressions, and exclamations, as
furnish evidence of "a present existing pain or malady." Bacon v.
The Inhabitants, etc., 7 Cush. (Mass.) 586. Examined by the standard
of these rules, the testimony to which this exception relates was prop-
erly admitted.
Judgment affirmed. 66
ROCHE v. BROOKLYN CITY & N. R. CO.
(Court of Appeals of New York, 1887. 105 N. Y. 291, 11 N. E. 630, 59 Am.
Rep. 506.)
PEckiiam, J. The only question in this case arises upon the ad-
mission of the testimony of a third party that the plaintiff, some days
after the happening of the accident which caused her injury, complain-
ed that she was suffering pain in her injured arm. The witness did
not testify that on these occasions the plaintiff screamed or groaned,
or gave other manifestations of a seemingly involuntary nature and
licative of bodily suffering, but he proved simple statements or dec-
larations made by plaintiff, that she was at the time of making them
suffering pain in her arm. The plaintiff was herself sworn, and prov-
ed the injury and the pain. The condition of the arm the night of
the enl was also provrd ; that it was very much swollen and black
bo That the complaints, statements, etc., need nol be made al or close to
the time when the Injury was received, see Mississippi Cent. R. Co. v. Turn-
-.-.i, 19 south. 840, -1 L B. a. (N. B.) 263 (1909), annotated.
SeC. 2) RECOGNIZED "EXCEPTIONS 719
all around it, and subsequently red and inflamed, and continued swol-
len and inflamed more or less for a long time. The defendant chal-
lenges the evidence of complaints of pain thus made, on the ground
that it was incompetent, and the argument made was that the evidence
as to the injury and its extent could not be thus corroborated by mere
hearsay.
Prior to the time when parties were allowed to be witnesses, the
rule in this class of cases permitted evidence of this nature. Caldwell
v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 N. Y. 344, 84 Am.
Dec. 346. These cases show that the evidence was not confined to
the time of the injury, or to mere exclamations of pain. The admissi-
bility of the evidence was put, in the opinion of Judge Denio, in 11
N. Y., supra, upon the necessity of the case, as being the only means
by which the condition of the sufferer as to enduring pain could, in
many instances, be proved. Substantially the same class of evidence
was admitted in England, and for the same reason. See cases cited
in 11 N. Y. In Massachusetts, 56 too, the same rule was applied.
Bacon v. Charlton, 7 Cush. (Mass.) 581 ; cited and approved in Roosa
v. Boston Loan Co., 132 Mass. 439.
After the adoption of the amendment to the Code, permitting par-
ties to be witnesses, the question under discussion was somewhat moot-
ed in Reed v. Railroad, 45 N. Y. 574, by Allen, J,, in the course of
his opinion, although the precise point was not before the court. The
question there under discussion was as to the correctness of permitting
the plaintiff to prove his declarations made at the time he was doing
some work, to a third person, as to the state of his health. That is
not exactly like the case of complaints, made, not as to a state of
health, but as to a then present existing pain at the very spot alleged
to have sustained injury, and proved so by other evidence ; still the
remarks of Judge Allen, on this kind of evidence in general, bear strict-
ly upon the matter herein discussed. He reviewed in his opinion some
of the above cases and others, and claimed that the courts had admit-
ted the evidence from the necessity of the case, as being the only meth-
od by which the condition of the party could be shown fully and com-
pletely, not only as to appearances, but also as to suffering. But
there was no agreement by the court upon that branch of the case,
the judgment going upon another ground.
The case of Hagenlocher v. Brooklyn R. R., 99 N. Y. 136, 1 N. E.
so In Cashin v. New York, N. H. & 3. R. Co., 1S5 Mass. 543, 70 N. E. 930
(1904), in holding that it was proper to admit the following statement by the
plaintiff, "God Almighty. Joe, if I could only get rid of these headaches," the
court said: "* * •* That part of the answer which ends with the word
'headaches,' when taken in connection with the statement that at the time
of the exclamation the plaintiff had his hands upon his head, may be re-
garded as an exclamation and ejaculation of present pain. And it is none
the less so even if it also carries an idea of similar past pain. So far as
it was an ejaculation of present pain it was admissible and was therefore
rightly admitted, but it was not to be considered as any evidence whatever
of similar prior pain."
720 HEARSAY (Ch. 3
536, decides that, even since the Code, evidence of exclamations indica-
tive of pain made by the party injured is admissible. The case does
not confine proof of these exclamations to the time of the injury.
The question was asked of the plaintiff's mother: "How long after
injurv was your daughter confined in the bed? Answer. She was for
about four weeks. Question. What expressions did she make, or
what manifestations, showing that she suffered pain?" This shows
there was no confinement of the evidence to the time of the injury.
The evidence given, however, was of screams when the plaintiff's foot
was touched, and of her exclamations of pain when even the sheet was
permitted to touch the foot. The evidence was permitted on the
ground that it was of a nature which substantially corroborated the
plaintiff as to her condition. Having thus admitted evidence of this
kind since the adoption of the Code amendment permitting parties to be
witnesses, the question is whether there is such a clear distinction be-
tween it and evidence of simple declarations of a party that he was
then suffering pain, but giving no other indications thereof, as to call
for the adoption of a different rule. It seems to us that there is. Evi-
dence of exclamations, groans, and screams is now permitted, more
upon the ground that it is a better and clearer and more vigorous de-
scription of the then existing physical condition of the party by en eye-
witness than could be given in any other way. It characterizes and
explains such condition. Thus, in the very last case cited, it was
shown that the foot was very much swollen, and so sore that the sheet
could not touch it. How was the condition of soreness to be shown
better than by the statement that, when so light an article as a sheet
touched the foot, the patient screamed with pain? It was an involun-
tary and natural exhibition and proof of the existence of intense sore-
ness and pain therefrom. True, it might be simulated, but this pos-
sibility is not strong enough to outweigh the propriety of permitting
such evidence as fair, natural, and original corroborative evidence of
the plaintiff as to his then physical condition. Its weight and pro-
priety are not, therefore, now sustained upon the old idea of the neces-
sity of the case.
But evidence of simple declarations of a party, made some time after
the injury, and not to a physician for the purpose of being attended to
professionally, and simply making the statement that he or she is then
suffering pain, is evidence of a totally different nature, is easily stated,
liable to gross exaggeration, and of a most dangerous tendency, while
the former necessity for its admission has wholly ceased. As is said
by Judge Allen in Reed v. Railroad, supra, the necessity for giving
such declarations in evidence, where the party is diving and can be
sworn, no louver existing, and that being the reason for its admis-
sion, the reason of the rule ceasing, the rule itself, adopted with re-
luctance and followed cautiously, should also cease. With the rule as
herein announced there can be no fear of a dearth of evidence as to
the extent of the injury, and the suffering caused thereby. The
Sec. 2) RECOGNIZED EXCEPTIONS 721
party can himself be a witness, if living, and, if dead, the suffering is
of no moment, as it cannot be compensated for in an action by the
personal representative under the statute, and the exclamations of pain,
the groans, the sighs, the screams, can still be admitted. But we arc-
quite clear that the bald statement, made long after the injury, by the
party, that he suffers from pain, ought not to be admitted as in any
degree corroborative of his testimony as to the extent of his pain.
For these reasons, the evidence of Mr. McElroy, as to the plaintiff's
declarations of existing pain, when they were walking in the street
together, long after the accident, should not have been received. It
was error, also, to permit the same witness to prove declarations of the
plaintiff that her arm pained her very much, even though at the same
time she showed her arm, and it was swollen and red. The appearance
of the arm he could describe, but her declaration that it pained her
very badly is mere hearsay, and should not have been permitted.
The judgments of the general term and circuit should be reversed,
and new trial granted ; costs to abide event. 57
All concur, except Danforth, J., dissenting.
NORTHERN PAC. R. CO. v. URLIN.
(Supreme Court of the United States. 1S91. 158 U. S. 271, 15 Sup. Ct. 840,
39 L. Ed. 977.)
This was an action brought by Alfred J. Urlin, in the Circuit Court
of the United States for the District of Montana, against the Northern
Pacific Railroad Company, to recover for personal injuries received by
him when traveling as a passenger in one of its trains. * * *
The case proceeded to trial before the court and a jury, and resulted
in a verdict for the plaintiff in the sum of $7,500, and the jury also
returned certain special findings which had been submitted to them at
the request of the defendant. Judgment was entered upon said verdict
and special findings. During the trial several exceptions were taken by
the defendant, which were allowed and signed by the judge, and
which are brought for review to this court by a writ of error. 5 s
Mr. Justice Shiras. * * * The third assignment is strenuously
pressed on our attention in the brief of the plaintiff in error. It arises
out of the refusal of the court below to suppress certain portions of
the depositions of Drs. Mills and De Witt because of incompetency,
and as merely hearsay.
This objection is founded upon the witnesses having been permitted
to testify to statements made by the defendant, at various times, to
5 7 For some comment on the distinction taken between statements and ex-
clamations, see separate opinion of Canty, .7.. in Williams v. Great Northern
Ry. Co., 68 Minn. 55, 70 N. W. 860, 37 L. R. A. 199 (1897).
8 Statement condensed and part of opinion omitted.
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Sec. 2) BBCOONIZBD BXCSFTIO 723
WEST CHICAGO ST. RY. CO. v. KENNEIXY.
(Supreme Coort of liiin-,. no Hi. 606, 48 N. E. 096.)
tAlG, J. M This was an action brought by Mary Kennelly to re-
cover dan: for a personal injury alleged to have been sustained
by reason of the m-gligence of the West Ch: trect- Railroad C
pany. * * *
It was claimed on the trial that, as a result of the accu' plaintiff
received an injury on one of her hips, and her right ankle was badly
sprained. On the other hand, it was claimed on the part of the de-
fendant that the injuries were, in a great measure, from other causes.
* * *
For the purpose, it may be presumed, of showing that plaintiff was
in good health before the accident, the witness Devennee was asked,
'bid you hear her complain of any injuries?" To the question the
witness answered, "No, sir; I did not." While it may be cone
that the declarations of the plaintiff made to the witness was not
competent evidence to prove her physical condition, yet we are inclined
to the opinion that it was not error to allow the witne rtate the
fact that she heard no complaint. The witness resided near the plain-
tiff, visited her almost daily for three or four months before the acci-
dent, and the fact that during that time she heard no complaint from
the plaintiff in regard to her condition may be regarded at least as
slight evidence tending to prove her condition. The weight, however,
to be given to such evidence, was a question for the jury. The same
witness was asked how she found the plaintiff the morning after the
accident, to which she replied, "She was complaining awful bad." It
is said in the argument "that the plaintiff could not make testimony
for herself by stating her feelings to a lay witness. What she may
have told the witness was entirely incompetent to be by her repeated
as evidence."
Conceding that statements made by the plaintiff to the witness in
regard to her condition were incompetent, it does not follow that the
answer to the question was erroneous. The witness was not asked to
give any declaration made by the plaintiff as to her condition, nor did
the witness state what the plaintiff had said to her. It was no doubt
proper to show whether the plaintiff was quite free from pain, and rest-
ing easy, or, on the contrary, that she was restless, and complaining;
and proof of the fact that plaintiff was complaining cannot be regarded
as proof of her declarations. It was a mere exclamation, which
proper to be given. The same witness was asked the following c
tion : "Where would she complain of pain at the time after she
hurt?" to which the witness, over the objections of the defendant,
answered: "She complained of her side, and under the spine, in the
back, and this ankle. She screamed with the ankle awfully." We
-* Part of opinion omitted.
724 HEARSAY (Ch. 3
do not think this evidence was competent. It was the mere declara-
tion of the plaintiff, not made to a physician or expert, and can only
be regarded as hearsay. Statements of pain and sufferings, past and
present, when not made to a physician or medical expert for the pur-
pose of enabling him to form an opinion with a view to treatment or
other legitimate purpose, unless made at the time of the injury, so as
to constitute a part of the> res gestae , 'are inadmissible.
The rule, however, is different where statements have been made to
a physician called upon to treat a person who may have received an
injury, as was properly said in Railroad Co. v. Sutton, 42 111. 440, 92
Am. Dec. 81. A physician, when asked to give his opinion as to the
cause of a patient's condition at a particular time, must necessarily,
in forming his opinion, be, to some extent, guided by what the sick
person may have told him in declaring his pains and sufferings. This
is unavoidable ; and not only the opinion of the expert, founded in
part upon such data, is receivable in evidence, but he may state what
his patient said in describing his bodily condition, if said under cir-
cumstances which free it from all suspicion of being spoken with ref-
erence to future litigation, and give it the character of res gestae. The
same rule is declared in Quaife v. Railway Co., 48 Wis. 524, 4 N. W.
658, 33 Am. Rep. 821, and Barber v. Merriam, 11 Allen (Mass.) 322;
Railroad Co. v. Carr (opinion present term) 170 111. 478, 48 N. E. 992.
But, while this evidence was incompetent, we do not regard its ad-
mission sufficient ground for reversing the judgment. Upon looking
into the record, it will be found that the same witness whose testi-
mony is objected to was present when the plaintiff was examined by
the physician on the day she was injured, and heard the same state-
ment made by the plaintiff, and these statements were testified to by
the witness in her evidence. The physician also testified to the same
things without objection. The evidence, therefore, being properly be-
fore the jury, if the court had excluded the evidence objected to by
the defendant, nothing would have been gained by its exclusion. The
error was, therefore, one which did no harm, and hence is no ground
for reversing the judgment. No other question which calls for a con-
sideration has been raised in. the argument.
The judgment of the appellate court will be affirmed.
SeC. 2) RECOGNIZED EXCEPTIONS 725
BOSTON & A. R. CO. v. O'REILLY.
(Supreme Court of the United States, 1894. 158 U. S. 334, 15 Sup. Ct. 830,
39 L. Ed. 1006.)
In October, 1890, Patrick J. O'Reilly, in the circuit court of the
United States for the district of Massachusetts, brought an action
against the Boston & Albany Railroad Company for personal injuries
received while riding as a passenger on one of that company's trains.
The trial resulted in a verdict for the sum of $15,000, and to the
judgment entered for that amount a writ of error was sued out of this
court. 80
Mr. Justice Shiras, * * * The fourth, eighth, and ninth specifi-
cations alleged error in the court permitting the nurse and physician
to testify that the plaintiff told them, some time after the accident, that
a piece of nail had come out of his knee, and in permitting the phy-
sician to point out upon the plaintiff's knee the scar of the hole out of
which the plaintiff had told him the nail had come. These matters
could not fairly be regarded as part of the res gestae, but were mere
hearsay. Railroad Co. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30
L. Ed. 299.
If the record disclosed no other error, the admission of this evidence
might have been passed by as immaterial. Still, it is impossible to
say that the defendant's case was not injuriously affected by the ad-
mission of the evidence ; and, while an appellate court will not dis-
turb a judgment for an immaterial error, yet it should appear beyond
a doubt that the error complained of did not and could not have preju-
diced the rights of the party duly objecting. Deery v. Crav, 5 Wall.
807, 18 L. Ed. 653; Gilmer v. Higley, 110 U. S. 47, 3 Sup. Ct. 471, 28
L. Ed. 62.
We do not deem it necessary to notice other exceptions taken to the
rulings of the court below.
The judgment is reversed, and the cause remanded, with directions
to set aside the verdict and award a new trial.
Judgment reversed. 61
60 Statement condensed and part of opinion omitted.
01 And so in case of statements of the cause of the injury or condition.
Chapin v. Marlborough, 9 Gray (Mass.) 244, 69 Am. Dec. 281 (1857) ; Morris-
sey v. Ingham, 111 Mass. 63 (1872) ; Roosa v. Boston Loan Co., 132 Mass. 439
(1882); Com. v. Sinclair, 195 Mass. 100, 80 N. E. 799, 11 Ann. Cas. 217 (1907i.
726 HEARSAY (Ch. 3
CRONIN v. FITCHBURG & L. ST. RY. CO.
(Supreme Judicial Court of Massachusetts, 1902. 181 Mass. 202, 63 N. E.
335, 92 Am. St. Rep. 408.)
Tort for injuries alleged to have been caused by a collision of an
electric car of the defendant with a wagon in which the plaintiff was
driving on September, 27, 1898. Writ dated June 12, 1899.
At the trial in the Superior Court before Bond, J., Dr. Frank C.
Richardson of Boston was called as a witness by the plaintiff and
qualified as an expert who had made a specialty of nervous diseases.
He testified in regard to an examination of the plaintiff made by him
on May 18, 1901, as follows: "I obtained from him his statement of
his sufferings at the time of his accident." Against the objection of
the defendant, he further testified in regard to that examination as
follows : "He complained of suffering considerable pain in the right
leg, of backache on slight exertion, severe pain in the left side of
the head, muscular weakness ; that he tired easily ; that his sleep
was restless and troubled; that he could not sleep more than two
hours at a time during a night ; that he was nervous, excitable, emo-
tional, easily startled ; that he could not concentrate his mind on any-
thing for more than a few minutes ; that he had periods of tremor of
the whole body, muscular twitchings and mild hysterical attacks."
The witness further testified in regard to an examination made by
him upon October 28, 1901, as follows, the defendant objecting : "I ex-
amined him at my office in the presence of Dr. Goray last evening ;
he stated that he could see no change in his suffering from last spring ;
that he still had pain in his head, pain in his leg ; that the pain in his
leg had largely given way to numbness; that he had not attempted
to work because even ordinary exertion, as in work about the house,
tires him ; that his sleep is restless and troubled ; that he cannot con-
centrate his mind any better than last spring; that he still has attacks
of trembling and muscular twitching."
The foregoing evidence was given in direct examination, and to
the admission of all of it the defendant excepted. The witness aft-
erwards gave his opinion as to the physical condition of the plain-
tiff.
On cross-examination the witness testified in part that he had made
two, and only two, examinations of the plaintiff; that both of these ex-
aminations were made at the request of the plaintiff's counsel, for
the purpose of testifying for the plaintiff in this case; that the only
other time when the plaintiff came under his professional observa-
tion was when the witness was present in May, 1901, in the court
house, when Dr. Thompson made an examination for the defendant,
while the first trial was in progress ; that the witness had never been
Sec. 2) RECOGNIZED EXCEPTIONS 727
the physician of the plaintiff, and had never prescribed for him in
any way, nor given him professional advice, nor had been asked to
do so.
It appeared from the docket record, that the first trial of this case
in the Superior Court was on May 20, 1901, and the second trial on
October 28, 1901.
The jury returned a verdict for the plaintiff in the sum of $6,733;
and the defendant alleged exceptions.
Barker, J. It is.plain that the statement by a party to a cause of
his bodily and nervous symptoms, made long after the occurrence of
the accident to which he attributes them, and for purposes connected
with the preparation for trial of a suit in which his condition of
health is material, and not made to a physician for the purpose of ob-
taining advice or treatment, 62 are not admissible in evidence in his
own favor as proof of the truth of the matters stated. It is equally
plain that every person admitted as an expert to testify to his opinion
may state in his testimony the grounds and reasons for that opinion,
and that the party calling the expert may put in evidence those grounds
and reasons in the direct examination of the expert, and before calling
upon him to give his opinion to the jury. The statement of these
rules as to the examination of witnesses called as experts, made by
Chief Justice Bigelow in Barber v. Merriam, 11 Allen, 322, 324, has
since the decision of that case been considered as law in this common-
wealth, and has governed trials. So well established is this doctrine
that the expert, upon direct examination, and before giving his opinion
in evidence, may testify to the matters which form the grounds and
reasons of that opinion, that in Koplan v. Gaslight Co., 177 Mass. 15,
21, 58 N. E. 183, this court overruled, without discussion, an exception
to testimony so given, and which, save as showing the grounds of the
opinion about to be given by the witness, would have been inadmissible.
In the present case there is no doubt that the statements of the
plaintiff were hearsay, and of that particularly dangerous and objec-
tionable type — declarations of an interested party, made after suit
brought, and for the very purpose of preparing evidence to be used in
his own favor at the trial. But no such rule applies to them as that
which excludes private conversations between husband and wife, or
communications between attorney and client. They may be admitted
in evidence if offered by the adverse party, either as admissions or as
contradictions of the testimony of the person who makes them. It
follows that they may be admitted as the grounds and reasons of an
62 For the view that statements made for the purpose of enabling the
phvsiciau to testify are not admissible for any purpose, see Greinke v. Chi-
cago Citv R. Co., 23-1 111. 564, S5 N. E. 327 (190S) ; O'Dea v. Michigan Cent.
R. Co., 142 Mich. 265, 105 N. W. 746 (1905).
See, a? so, People v. Hill, 195 N. Y. 16, 87 N. E. 813 (1909), ante, p. 709.
For a collection of the mses on this point, see note to Shauglmessy v. Holt,
21 L. R. A. (N. S.) 826 (1908).
723 hearsay (Ch. 3
opinion given in evidence, or to be so given, by an expert. Being ad-
missible for that purpose, the exception to their admission was not
well taken.
Exceptions overruled. 03
(C) As to Other Facts
THOMPSON et ux. v. TREVANJON.
(Nisi Prius, 1694. Skin. 402.)
Ruled upon evidence, that a mayhem may be given in evidence, in
an action of trespass of assault, battery, and wounding, as an evidence
of wounding per Holt, Chief Justice ; and in this case he also allowed,
that what the wife said immediate upon the hurt received, and before
that she had time to devise or contrive any thing for her own advan-
tage, might be given in evidence; quod nota; this was at Nisi Prius
in Middlesex for wounding of the wife of the plaintiff. 64
C3 State v. Blydenburg, 135 Iowa, 264. 112 N. W. 634, 14 Ann. Cas. 443 (1907).
apparently goes ou the same ground, that the history of the case as stated
by the patient is admissible only to explain, or show the basis of, the physi-
cian's opinion. Compare Com. v. Sinclair, 195 Mass. 100, SO N. E. 799. 11
Ann. Cas. 217 (1907), to the effect that a patient's statement that an opera -
i had been performed by another physician was not admissible, even for
this limited purpose.
6 4 There is a singular dearth of English cases on this point. The question
must have arisen many times at trials, but the cases did not get into tbe
books. In Aveson v. Kinnaird, 6 East, 1S8 (1805), the following reference to
the principal ease appears: "His Lordship (Lord Ellenborough) also referred
to the case of Thompson et uxor v. Trevanion, Skin. 402 [1694], where, in an
action by the husband and wife for wounding the wife. Ixu-d C. J. Holt al-
lowed what the wife said immediately upon the hurt received, and before she
had time to devise any thing for her own advantage, to be given in evidence
as part of the res gestre."
In Rex v. Foster, 6 C. & P. 325 (1834), which was tried lief ore Park and
Patteson, JJ., and Gurney, B., statements by the injured person as to the cause
of the injury were received on the authority of Aveson v. Kinnaird.
Tn Reg. v. Beddingfield, 14 Cox, C. C. 341 (1879). Cockburn, C. J., rejected
similar statements of the injured person on the ground that the ad was then
mplete, though the statements were made almost immediately afterwards.
In the controversy which this case produced, as to which see 14 Am. Law
Rev. 817, DO additional authorities were cited. In Reg. v. Gibson, L. R. 18 Q.
B. I >. 537 (1887), it was assumed without argument that it was error to admit
• statement of a third person, immediately after the prosecuting witness
was struck, i" the effect that the person who threw the stone went into a cer-
tain bouse. There is nothing in the report to indicate the reason for this as
sumption.
Sec. 2) RECOGNIZED EXCEPTIONS 720
POOL v. BRIDGES.
(Supreme Judicial Court of Massachusetts, 1826. 4 Pick. 378.)
This was trover for a quantity of wool, yarn and booking, which the
defendant, as a deputy sheriff, attached and took away as the property
of one Scholfield, who absconded. The plaintiff proved that a quantity
of South American wool was delivered by him to Scholfield to be
manufactured. One Ayer testified, that the plaintiff called on Schol-
field about a week before he absconded, in order to ascertain what
progress he had made in manufacturing his wool, and that Scholfield
then showed him some wool, yarn and bocking, which he said were
the plaintiff's and which the plaintiff examined ; and he f urtlier testi-
fied, that the wool, yarn and bocking thus shown were the same that
were afterwards attached by the defendant.
The defendant objected to the admission of this evidence ; and if, in
the opinion of the whole Court, it was improperly admitted, the ver-
dict, which was for the plaintiff, was to be set aside and a new trial
granted; otherwise judgment was to be entered on the verdict.
Parker, C. J., delivered the opinion of the Court.
The only question is, whether the testimony of Ayer, in relation to
the declaration of Scholfield tending to show that the goods attached
were the property of the plaintiff, was admissible. If a mere declara-
tion, certainly it is not evidence, for Scholfield is alive, and though prob-
ably out of the country, proof of his sayings would be rejected on the
general rule respecting hearsay evidence. There are however ex-
ceptions to the general rule, depending sometimes upon nice discrimi-
nation, which without close consideration would seem to violate the rule
itself. The cases of pedigree and some others recognised in the books
are well known and easily applied; Roscoe's Dig. Crim. Ev. (Amer.
Ed.) 22, n. 1 ; 2 Stark. Ev. (5th Amer. Ed.) 604 et seq. but where decla-
rations are admitted as part of the res gestae, there is hardly any distinct
rule as to what will constitute the res gestae which will support such
declarations.
The case before us is of this difficult nature. The property in ques-
tion is supposed to have been in the possession and under the control
of Scholfield. It appears also, that it was so situated, in regard to
other property of the same kind belonging to Scholfield himself or
to other persons, that none but Scholfield could distinguish them.
If he had been heard to say that the particular parcel in question be-
longed to the plaintiff, without their being engaged in any transaction
relating to the property this would be mere declaration and hearsay.
But if he was then employed in any act respecting the goods, such as
separating different parcels for the purpose of distinguishing what be-
longed to one person and what to another, what he said while he was
doing it would be considered as a part of the transaction and admissible
in evidence. It would be like his labelling the goods with the name
730 HEARSAY (Cll. 3
of the owner, which though in one sense a declaration yet would be
construed an act indicative of proprietorship in the goods. It gives
some importance to such declarations, that they are made in the ordi-
nary course of transactions, without reference to any controversy or
any counter claim of property, and also that the declarations are against
the interest of the party. Now the declarations of Scholfield have these
circumstantial supports ; they were made at a time when there was no
expectation of a dispute about the property, and they were against the
interest of Scholfield.
Was there any transaction of which they may be considered to be a
part? We think there was. The plaintiff went to Andover to inquire
into the state of the wool which he had put into the possession of
Scholfield to be manufactured. Scholfield showed him certain por-
tions in different stages of process, as his property. This was an act or
transaction, and Scholfield's declaration made a part of it; and this
act is not distinguishable from the actual separation of a parcel from
the common mass, putting it aside with the plaintiff's name upon it ;
for this substantially would be but the declaration of Scholfield, and
yet it cannot be doubted but that it might be proved. See Tompkins v.
Saltmarsh, 14 Serg. & R. (Pa.) 275 ; Gorham v. Canton, 5 Greenl.
(Me.) 266, 17 Am. Dec. 231 ; Little v. Libby, 2 Greenl. (Me.) 242, 11
Am. Dec. 68 ; Brackett v. Wait, 6 Vt. 425 ; Roscoe's Dig. Crim. Ev.
20, 21; 1 Stark. Ev. (5th Amer. Ed.) 36; Davis v. Spooner, 3 Pick.
288 ; Van Deusen v. Turner, 12 Pick. 533.
We consider it of importance, that it was proved by unquestionable
evidence, that the plaintiff had wool in the possession of Scholfield, and
that the only question was whether the particular parcel attached was
part of his property.
Judgment according to verdict. 65
PATTEN v. FERGUSON.
(Superior Court of Judicature of New Hampshire, 1847. 18 N. H. 528.)
Trespass, quare clausum f regit. Plea, the general issue. The princi-
pal question in controversy related to the boundary line between the
lands of the parties. Evidence was introduced on both sides tp show
acts of ownership of the premises in dispute between the lines /in con-
troversy, by each of the parties, and their grantors. Among the rest
the plaintiff introduced a witness who testified that in the year 1809 he
isted one Gillis in burning a coal-pit upon the premises in dispute,
the wood for which was cut Upon the land in dispute immediately
preceding the burning, and that Gillis at that time told him that he
oBQurere, whether the court would have applied the same rule if tin' action
bad been between two persons who had left ^oo<is with the ahscondlng bailee?
SeC. 2) RECOGNIZED EXCEPTIONS 731
had the wood for the coal-pit of one Joseph Patten, now deceased, un-
der whom the plaintiff claims.
To the admission of this evidence the defendant objected, on the
ground that the statements of Gillis thus stated were inadmissible.
But the court overruled the objection, and admitted the evidence.
A verdict having been returned for the plaintiff, the defendant
moved for a new trial.
Parker, C. J. The ruling in this case gives to the declaration of
Gillis an effect, or rather admissibility, as evidence, which is not
ordinarily given to the mere declarations of third persons, respecting
the rights or titles of the parties to the suit. The declarations went
before the jury as evidence, to some extent, that Patten, under whom
the plaintiff claims, had title. As the mere declaration of a third per-
son, it is clearly inadmissible. But it is argued that the declaration is
evidence, because Gillis was on the land at the time, making coal, and
that the declaration is therefore admissible as part of the res gestae.
If the fact was material, and the declaration tended to illustrate it, this
would be so ; but the fact that Gillis was on the land making coal is
of no importance in the case. It is net used to show a title in him by
either party. Neither claims any thing under him. He was on the
land without pretence of title. The fact of itself is entirely immaterial,
and inadmissible for that reason. It does not serve to give significance
to this fact, or to explain or illustrate it in any way, so as to render it
important, that he said that he had the wood for the coal-pit from one
person to another. If he cut the wood by the authority of a purchase
from Patten, and it is supposed that this is material as showing an
exercise of ownership by Patten, that fact may be proved by the tes-
timony of Gillis, but not by his mere declaration without the sanction
of an oath, and with no opportunity for a cross-examination.
The principles which govern this case are well stated in Downs v.
Lyman, 3 N. H. 486, cited by the plaintiff, although the case is not
an authority for him, because there the fact to which the declaration
related was, of itself, when rightly understood, of some consequence.
Here it is admitted that neither the fact nor the declaration, standing
alone, are evidence ; and when put together it is the declaration which
is significant, and not the fact. The fact was of no importance, stand-
ing alone; and the declaration, standing alone, was incompetent.
When they are united, the unimportant fact is used as a vehicle to in-
troduce the incompetent declaration.
New trial granted.
732 HEARSAY (Ch. 3
HILL v. COMMONWEALTH.
(General Court of Virginia, 1845. 2 Grat. 594.)
Duncan, J., 66 delivered the opinion of the majority of the court.
The prisoner was indicted for the murder of Robert R. Smith ; and
was found guilty by the petit jury of murder in the first degree; and
sentence of death was pronounced by the court. * * *
The proof to which we will now refer as exclusive of the dying
declarations, is as follows: On the evening of the 13th of September
last, (the evening of the homicide,) the decedent, who resided 18 miles
from Suffolk, being on a visit to his estate adjoining, or near to the
town of Suffolk, came to the town, and was at the Washington Hotel.
The prisoner who resided in the town of Suffolk, casually met him
there : friendly salutations passed between them : a mixed conversa-
tion took place in the company ; (there being several persons present ;)
when about the hour of 7 o'clock, the prisoner asked the decedent
to walk with him, as he wished to say something to him. The decedent
complied, and they walked off together towards Bayly's storehouse ;
which is about 50 feet from the end of the porch of the tavern from
which they started : and Bayly's store is in view of persons stationed in
the end of the porch. No person seems to have observed the parties
after they started on their walk. The prisoner had with him a sword
cane. After the lapse of between 5 and 10 minutes, the decedent was
seen to approach the tavern, staggering. He fell before he got to the
porch. Some of the company who were in the porch went to his aid,
carried him into the porch, and laid him down. He was pulseless, and
his countenance was pale and deathlike. Some of the persons present
thought he was dead. He lay in this situation some minutes, when he
revived a little, turned himself over and vomited. Remedies were ap-
plied to restore sensibility, and in about 10 minutes he was sufficiently
restored to be able to speak ; and upon being asked what ailed him, "he
put his hand to his left breast, and said, 'Here it is, here it is.' " "Hunt-
er Hill asked me to walk out, and stabbed me here." (See Duke's
evidence, page 8 of the record.) His clothes were opened, and a wound
discovered on the left breast, opposite the region of the heart. * * *
But if we connect with these circumstances, the first declaration of the
decedent, "Here it is, here it is," placing his hand on his left breast,
'Hunter Hill asked me to walk out, and stabbed me here" — as part
the res gestae — the fact of the killing by the prisoner is proved be-
yond all doubt ; and the circumstances before referred to shew the
quo animo with which it was done. That this declaration is part of
the res gestae, remains now to be shewn.
There can be no doubt that the situation and condition of the dece-
dent after he received the wound; his staggering as he approached the
•• Statement and pnrt of opinion omitted.
SeC. 2) RECOGNIZED EXCEPTIONS 733
tavern; his falling; his pulseless and insensible state; his vomiting;
the coldness of his extremities; his physical condition; the remedies
resorted to ; all he said and did up to the period of his death, except
his declaration as to the commission of the act, are all parts of the
res gestae : and why not his declarations as to the commission of the
act? The reason is, that he may have fabricated or made up a story.
But on the one hand, if under the circumstances of the case he could
not have had time to make up a story, and that the declarations were
made when the lis mota did not exist, then they may be received as
part of the res gestae. On the other hand, if made after time sufficient
had been allowed to fabricate a story, or the lis mota may be sup-
posed to exist, they are not to be considered as part of the res gestse.
In this case the decedent was stabbed to the heart ; he immediately at-
tempted to return to the tavern; he fell, recovered to his feet, stag-
gered, fell again, and fainted; and remained insensible for about 10
minutes, when, and after the application of stimulants, he revived so
as to be able to speak ; and immediately made the declaration referred
to. Where was the time within which he could have arranged his"
thoughts, and fabricated a story ? A priori a stabm the heart would in-
stantaneously suspend the powers of reflection ; "and we have seen its
physical effect upon the deceased. All the time then from receiving
the stab until he revived from his fit of fainting he was clearly not in a
condition to arrange his ideas and fabricate a story: and the dec-
laration was immediate upon his revival. In Rex v. Foster, 25 Eng. C.
L. R. 421, the statements, of a deceased who had been run over by a
cabriolet, made recently after receiving the injury, were allowed as
part of the res gestae. So in Skinner 402, referred to in a note to Rex
v. Foster, Holt, judge, permitted the statements of the wife made
recently after being wounded by her husband, and "before she had
time to devise anything for her own advantage," to be given as part
of the res gestae.
All that is necessary, according to these cases, to make the dec-
laration part of the res gestae, is that it should be made recently after
receiving the injury, and before he had time to make up a story, "or
to devise any thing for his own advantage." Tested by this rule, the
statement referred to is clearly admissible. * * *
Writ of error refused.
LUND et ux. v. INHABITANTS OF TYNGSBOROUGH.
(Supreme Judicial Court of Massachusetts, 1S51. 9 Cush. 36.)
This was an action on the case, tried in this court before Fletcher,
J., in which the plaintiffs sought to recover damages for an injury
alleged to have been received by the female plaintiff, in consequence
of a defect in a highway in the town of Tyngsborough, which the
defendants were legally bound to keep in such condition that the same
734 HEARSAY (Ch. 3
might be safe and convenient for travellers, with their horses, teams,
and carriages, at all seasons of the year. The alleged defect con-
sisted in a hole left open at the end of and extending around the
mouth of a culvert, unguarded by any railing or covering.
[To prove the extent of the plaintiff's injuries, certain evidence
was admitted, the nature of which sufficiently appears in the opin-
ion. The defendant alleged exceptions.]
Fletcher, J. 6T * * * The only remaining exception is that taken
to the admission in evidence of several answers in the deposition of
Lydia Kendall. In these answers, the witness states that the physician,
who was called to Mrs. Lund after she received the injury for which
this suit was instituted, said that it was a very serious injury, and it
would be three months, if not longer, before she would have the use of
her limb ; and that he further said, her limb was not broken ; "he said
it was worse injured than though the bone was broken; that the liga-
ments were torn from the bone, and broken." It does not appear by
the report how long it was after the accident happened when these
declarations were made; it only appears that they were made at the
time when the doctor was called to Mrs. Lund, and examined her
after she was injured. The object of introducing these declarations,
was to show the nature and extent of the injury. The defendants
objected to the admission of the answers of the witness, containing
these declarations of the physician; but they were admitted, and to
this admission exception is now taken. The ground of the exception is,
that the declarations of the doctor were hearsay merely, and, as such,
were not admissible. The fact, which appears in the case, that the
doctor had deceased at the time of the trial does not affect the legal
principle. It is no sufficient reason for receiving hearsay, that the per-
son is dead; and, therefore, that is the best evidence which can be
produced. It may be unfortunate for the party to have lost his evi-
dence but that furnishes no good reason for the admission of incom-
petent testimony. * * *
But it is maintained, on the part of the plaintiffs, that these dec-
larations should be regarded as a part of the res gesta?, and thus
admissible as original evidence. This is the main question in this
case.
It is a well established principle of the law, that declarations which
form a part of the res gestae and are to be considered as a part of the
transaction, do not come under the head of hearsay, but are admissible
as original evidence.
This is a settled general rule ; but, like other general rules, its ap-
plication to particular cases is often attended with much doubt and
difficulty. But it is wholly impracticable to bring this class of cases
within the limits of any clearly defined and positive rules. There are,
however, certain principles and tests, which are simple and intelligible,
87 Part of "pinion Omitted.
Sec. 2) RECOGNIZED EXCEPTIONS 735
by which the admission of this kind of evidence must be determined.
Its admission is not left to the discretion of the presiding judge, as
has been sometimes supposed ; but is governed by principles of law,
which must be applied to particular cases as other principles are ap-
plied, in the exercise of a judicial judgment; and errors of judg-
ment in this case, as in other cases, may be examined and corrected.
If it were matter of discretion merely, there would, of course, be no
fixed rules and no uniformity of decisions; and the exercise of this
discretion would not be subject to exception and revision and correc-
tion.
In a branch of the law of evidence of so high importance, and un-
der which questions are so constantly arising in practice as that in
regard to the admission of declarations not made under oath, nor in
presence of the parties in interest, it is extremely desirable that the law
should be as clearly defined, and its principles as fully illustrated and
explained, as may be practicable. Questions of this nature have fre-
quently arisen in this court ; but the decisions have been confined to
the particular cases in hand, without any extended examination of
the general subject.
It is proposed, in the present case, to consider the subject some-
what more at large, and to endeavor to set forth and illustrate, with
some particularity, the principles and tests by which this class of ques-
tions must be determined.
If a declaration has its force by itself, as an abstract statement, de-
tached from any particular fact in question, depending for its effect
on the credit of the person making it, it is not admissible in evidence.
Such a declaration would be hearsay. As where the holder of a check
went into a bank, and, when he came out, said he had demanded its
payment ; this declaration was held inadmissible to prove a demand, as
being no part of the res gestae. This statement was mere narrative,
wholly detached from the act of demanding payment, which was the
fact to be proved. But when the act of a party may be given in evi-
dence, his declarations, made at the time, and calculated to elucidate
and explain the character and quality of the act, and so connected
with it as to constitute one transaction, and so as to derive credit
from the act itself, are admissible in evidence. The credit which the
act or fact gives to the accompanying declarations, as a part of the
transaction, and the tendency of the contemporary declarations, as a
part of the transaction to explain the particular fact, distinguish this
class of declarations from mere hearsay.
Such a declaration derives credit and importance, as forming a
part of the transaction itself, and is included in the surrounding cir-
cumstances, which may always be given in evidence to the jury with
the principal fact. There must be a main or principal fact or trans-
action, and only such declarations are admissible as grow out of the
principal transaction, illustrate its character, are contemporary with it,
and derive some degree of credit from it.
736 HEARSAY (Ch. 3
The res gestae are different in different cases ; and it is not, perhaps,
possible to frame any definition which would embrace all the various
cases, which may arise in practice. It is for the judicial mind to deter-
mine, upon such principles and tests as are established by the law of
evidence, what facts and circumstances, in particular cases, come with-
in the import of the terms. In general, the res gestae mean those dec-
larations and those surrounding facts and circumstances, which grow
out of the main transaction, and have those relations to it which have
been above described.
The main transaction is not necessarily confined to a particular
point of time, but may extend over a longer or shorter period, accord-
ing to the nature and character of the transaction. Thus, where a
debtor leaves his house to avoid his creditors, which is an act of
bankruptcy, and goes abroad and continues abroad, the act of bank-
ruptcy continues during the continuance abroad for this purpose.
So declarations, to be admissible, must be contemporaneous with
the main fact or transaction ; but it is impracticable to fix, by any
general rule, any exact instant of time, so as to preclude debate and
conflict of opinion in regard to this particular point.
Perhaps the most common and largest class of cases in which dec-
larations are admissible, is that in which the state of mind or motive
with which any particular act is done is the subject of inquiry. Thus,
where the question is as to the motives of a debtor in leaving his house
and going and remaining abroad, so as to determine whether or not
an act of bankruptcy has been committed, his declarations when
leaving his house and while remaining abroad, as to his motives for
leaving his house and for remaining abroad, are admissible in evi-
dence. Such declarations, accompanying the act, clearly belong to the
res gestae. They are calculated to elucidate and explain the act, and
they derive a degree of credit from the act. * * *
The authorities upon the subject of admitting evidence as belonging
to the res gestae are numerous, but it will be sufficient to refer to
some of them. 1 Greenl. Ev. § 108 ; 1 Starkie Ev. §28; 1 Phillips,
p. 231 (4th Amer. from 7th London Ed.); Cowen & Hill's note, part
I, pp. 585, 586; Noyes v. Ward, 19 Conn. 250; Rawson v. Haigh, 2
Bing. 99; Ridley v. Gyde, 9 Bing. 349; Hadley v. Carter, 8 N. H. 40;
Carter & Wife v. Buchannon, 3 Ga. 513; Plumer v. French, 2 Foster
(22 N. H.) 450; Scaggs v. Mississippi, 8 Smedes & M. (Miss.) 722;
l.nos v. Turtle, 3 Conn. 247; Pool v. Bridges, 4 Pick. 378; Allen v.
I Duncan, 11 Pick. 308; Commonwealth v. McPike, 3 Cush. 181, 50 Am.
Dec. 727; Haynes v. Rutter, 24 Pick. 242; Trial of Drakard, 21
v.ll's St. Tr. 542; Gray v. Goodrich, 7 Johns. (N. Y.) 95.
It remains to apply the settled principles of the law to the particu-
lar case now under consideration. The declarations of the doctor who
called to Mrs. Lund after the accident, and made an examination,
red, to show the extent and nature of the injury she had re-
ceived. There was no question in regard to the examination; that
Sec. 2) RECOGNIZED EXCEPTIONS 737
act, of itself, detached from the declarations, was wholly unimportant
and immaterial. There was, therefore, in legal contemplation, no main
act with which the declarations could be connected. The declarations,
though made at the time, were, in no proper sense, a part of the exam-
ination. They merely announced the results, the opinion of the doc-
tor, the conclusion at which he arrived. These declarations might have
been made with precisely the same effect, at any subsequent time, a
day or a week after the examination.
The declarations were mere abstract statements, wholly detached
from any main act or fact admissible in evidence, and depending
for their effect entirely on the credit of the doctor. They were
the expression of a professional opinion, and had their weight whol-
ly as such. Such declarations are mere hearsay, and were clearly
improperly admitted in evidence; and, for that reason, a new trial
must be granted.
Verdict set aside, and new trial granted. 88
LUBY et ux. v. HUDSON RIVER R. CO.
(Court of Appeals of New York, 1858. 17 N. ¥. 131.)
Appeal from the Supreme Court. The action was for alleged negli-
gence in running a railroad car drawn by horses against the plaintiff
Mrs. Luby, in one of the streets of New York city. At the trial the
plaintiffs called as a witness one Mason, a policeman, and after prov-
ing by him that he was on duty near the spot where the accident oc-
curred, and was called upon by the persons assembled around the in-
jured woman, he was permitted, under exceptions by the defendant's
counsel, to testify that he arrested the driver of the car which run
against Mrs. Luby. He was also permitted, under like exception, to
testify that upon arresting the driver as he was getting off the car,
and out of the crowd which surrounded it, he asked him why he did
not stop the car, to which the driver replied that the brake was out of
order. The plaintiff had a verdict and judgment was entered there-
upon, and was, upon appeal, affirmed by the Supreme Court at general
term in the first district. The defendant appealed to this court.
Comstock, J. Mason, the police officer, was allowed to testify,
against the objection of the defendant, that he arrested the driver of
the car, and that the driver, on being arrested, assigned as a reason
why he did not stop the car that the brakes were out of order. This
took place directly after the accident, the citizens having stopped the
car and the driver having got outside of the crowd which had gatlier-
es See, also, Wright v. Tatham, ante, p. 435.
Hint.Ev. — 4T
738 HEARSAY (Ch. 3
ed about. We think it was erroneous to receive the evidence, and
that the judgment must be reversed on this ground.
First. In regard to the arrest. That fact was irrelevant to the case,
and we cannot tell what influence it may have had upon the minds of
the jury. It is true that the jury ought not to attach any importance
to the circumstance in trying the issue before them, but this only proves
that this fact ought not to have been shown for their consideration.
It certainly has some tendency to prove that at the very time of the
transaction the defendant's driver was considered by the officer and
others as guilty of culpable negligence. The question of his negli-
gence was in issue and on trial; and how far the jury were aided in
their conclusion by the manner in which the driver was treated by a
police officer, or others who witnessed or were near the transaction,
it is impossible for us to say. There is no pretense for saying that this
evidence was necessary or proper, for the purpose of identifying the
occasion. Indeed I can see no reason why the police officer was called
as a witness at all, unless for the irrelevant purpose of proving the ar-
rest and what the driver then said.
Second. The declarations of an agent or servant do not in general
bind the principal. Where his acts will bind, his statements and ad-
missions respecting the subject-matter of those acts will also bind the
principal, if made at the same time and so that they constitute a part
of the res gestae. To be admissible, they must be in the nature of orig-
inal and not of hearsay evidence. They must constitute the fact to be
proved, and must not be the mere admission of some other fact.
They must be made, not only during the continuance of the agency,
but in regard to a transaction depending at the very time. 1 Greenl.
Ev. § 13; Thallhimer v. Brinckerhoff, 4 Wend. 396, 21 Am. Dec. 155 ;
Bank of Monroe v. Field, 2 Hill, 445; Story on Agency, §§ 135, 136;
Fairlie v. Hastings, 10 Ves. 128; Barker v. Binninger, 14 N. Y. 271.
In this case it seems to have been thought material on the part
of the plaintiff to prove that the brake of the defendant's car was
out of order. Whether this was or was not the direct object of in-
troducing the declaration of the driver, such declaration at all events
proved the fact, if the jury saw fit to credit his statement. But the
fact, if true, could not be proved in this manner. The declaration was
no part of the driver's act for which the defendants were sued. It
was not made at the time of the act, so as to give it quality and char-
acter. The alleged wrong was complete, and the driver, when he made
the statement, was only endeavoring to account for what he had done.
lie was manifestly excusing himself and throwing the blame on his
principals. I do not by any means suggest that the conduct of the
servant himself, as it was proved on the trial, was not so negligent as
to justify the verdict; but the error was in allowing the jury, if they
d, to regard another material fact as proved by a mere decla-
ration of the agent — a fact which may possibly have exercised a de-
ScC. 2) RECOGNIZED EXCEPTIONS 739
cisive influence upon the result. What effect the jury gave to the evi-
dence we cannot tell. I see no way of getting over this difficulty.
Judgment reversed and new trial ordered. 89
TRAVELERS' INS. CO. OF CHICAGO v. MOSLEY.
(Supreme Court of the United States, 1869. 8 Wall. 397, 19 L. Ed. 437.)
Mr. Justice SwaynE. 70 * * * The other exception requires a
fuller examination.
Was it competent to prove the fall by the declarations of the assur-
ed made under the circumstances disclosed in the bill of exceptions?
In Thompson and Wife v. Trevanion, Skinner, 402, the. action was
for the battery and wounding of the wife. Lord Chief Justice Holt
"allowed, what the wife said immediately upon the hurt received, arid
before that she had time to contrive or devise anything for her own
advantage, to be given in evidence." The reporter adds : "Quod nota.
This was at nisi prius, in Middlesex, for wounding the wife of the
plaintiff." This case was referred to by Lord Ellenborough with ap-
probation in the case, before him of Aveson v. Kinnaird, 6 East, 197.
In that case, Lawrence, Justice, in answer to the objection, that such
evidence was hearsay, said : "It is in every day's experience in actions
of assault, that what a man has said of himself, to his surgeon, is evi-
dence to show what he has suffered by the assault." Id. 191.
The King v. Foster, 6 Carrington & Payne, 325, was an indictment
for manslaughter, for killing the deceased by driving a cab over him.
A wagoner was called as a witness for the prosecution. He stated that
he saw the cab drive by at a very rapid rate, but did not see the acci-
dent, and that immediately after, on hearing the deceased groan, he
went to him and asked him what was the matter. The counsel for
the prisoner objected, that what was said by the deceased, in the ab-
sence of the prisoner, could not be received in evidence.
Gurney, Baron, said that what the deceased said at the instant, as
to the cause of the accident, was clearly admissible.
Park, Justice, said that it was the best possible testimony that, un-
der the circumstances, could be adduced to show what knocked the de-
ceased down. Mr. Justice Patterson concurred. The prisoner was con-
victed.
In the Commonwealth v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec.
727, the indictment, as in the preceding case, was for manslaughter.
6 9 Accord: Ruschenberg v. Southern Electric R. Co., 1G1 Mo. 70, 61 S. W. 026
(1900) like principal case.
See, also, Vicksburg & M. R. Co. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L.
Ed. 299 (1886), excluding statement of engineer as to the rate of speed at tbe
time of the accident.
70 For the facts of this case, see ante, p. 716. Part of opinion of Swayne,
J., is omitted. %
740 HEARSAY (Ch. 3
The defendant was charged with killing his wife. It appeared that,
the deceased ran up stairs from her own room, in the night, crying
murder, and bleeding. Another woman, into whose room she was ad-
mitted, went, at her request, for a physician. A third person, who
heard her cries, went for a watchman, and, on his return, proceeded
to the room where she was. He found her on the floor, bleeding pro-
fusely. She said the defendant had stabbed her. The defendant's
counsel objected to the admission of this declaration in evidence. The
objection was overruled. The Supreme Court of Massachusetts held,
that the evidence was properly admitted. It was said that the declara-
tion was "of the nature of res gestae," and that the time when it was
made was so recent, after the injury was inflicted, as to justify receiv-
ing it upon that ground.
It is not easy to distinguish this case and that of The King v. Foster,
in principle, from the case before us, as regards the point under con-
sideration.
In Aveson v. Kinnaird, it was said by Lord Ellenborough, that the
declarations were admitted in the case in Skinner, because they were
a part of the res gestae.
To bring such declarations within this principle, generally, they must
be contemporaneous with the main fact to which they relate. But this
rule is, by no means, of universal application. In Rawson v. Haigh,
2 Bing. 99, a debtor had left England and gone to Paris, where he re-
mained. The question was, whether his departure from England was
an act of bankruptcy, and that depended upon the intent by which he
was actuated. To show this intent, a letter written in France, a month
after his departure, was received in evidence. Upon full argument, it
was held that it was properly received. Baron Park said : "It is im-
possible to tie down to time the rule as to the declarations. We must
judge from all the circumstances of the case. We need not go the
length of saying, that a declaration, made a month after the fact, would,
of itself, be admissible ; but if, as in the present case, there are con-
necting circumstances, it may, even at that time, form a part of the
whole res gestae."
Where a peddler's wagon was struck and the peddler injured by a
locomotive, the Supreme Court of Pennsylvania said : "We cannot say
that the declaration of the engineer was no part of the res gestae. It
was made at the time — in view of the goods strewn along the road by
the breaking up of the boxes — and seems to have grown directly out of
and immediately after the happening of the fact." The declaration
was held to be "a part of the transaction itself." Hanover Railroad Co.
v. Coyle, 55 Pa. 402.
In the complexity of human affairs what is done and what is said
are often so related that neither can be detached without leaving the
residue fragmentary and distorted. There may be fraud and falsehood
as to both ; but there is no ground of objection to one that does not
exist equally as to the other. To reject the verbal fact would not un-
Sec. 2) RECOGNIZED EXCEPTIONS 741
frequently have the same effect as to strike out the controlling member
from a sentence or the controlling sentence from its context. The doc-
trine of res gestae was considered, by this court, in Beaver v. Taylor,
1 Wall. 637, 17 L. Ed. 601. What was said in that case need not be
repeated. Here the principal fact is the bodily injury. The res gestae
are the statements of the cause made by the assured almost contempo-
raneously with its occurrence, and those relating to the consequences
made while the latter subsisted and were in progress. Where sickness
or affection is the subject of inquiry, the sickness or affection is the
principal fact. The res gestae are the declarations tending to show the
reality of its existence, and its extent and character. The tendency of
recent adjudications is to extend rather than to narrow, the scope of
the doctrine. Rightly guarded in its practical application, there is no
principle in the law of evidence more safe in its results. There is. none
which rests on a more solid basis of reason and authority. We think
it was properly applied in the court below.
In the ordinary concerns of life, no one would doubt the truth of
these declarations, or hesitate to regard them, uncontradicted, as con-
clusive. Their probative force would not be questioned. Unlike much
other evidence, equally cogent for all the purposes of moral conviction,
they have the sanction of law as well as of reason. The want of this
concurrence in the law is often deeply to be regretted. The weight of
this reflection, in reference to the case under consideration, is increas-
ed by the fact, that what was said could not be received as "dying
declarations," although the person who made them was dead, and
hence, could not be called as a witness.
Judgment affirmed. 71
NEW JERSEY STEAMBOAT CO. v. BROCKETT.
(Supreme Court of the United States, 1886. 121 U. S. 637, 7 Sup. Ct. 1039,
30 L. Ed. 1049.)
Mr. Justice Harlan. 72 * * * The whole case was thus fairly
placed before the jury upon the issue as to whether the defendant's
servants, in executing its regulation as to deck passengers, used un-
warrantable force, 73 and thereby caused the injuries of which the
plaintiff complains.
7i See the dissenting opinion of Justice Clifford, urging the distinction that
in other cases there was independent proof of the principal fact (the accident),
while here the statement was the only evidence to establish such fact.
" Statement and part of opinion omitted.
73 it appeared that the plaintiff, a deck passenger, had gone to sleep on
some freight in a part of the boat where such passengers were not allowed.
According to his contention, the employes of the boat assaulted him without
warning and violently removed him, inflicting serious injuries; according to
the defense, the plaintiff refused to leave this part of the boat, and resisted
the attempt to remove him. and his injuries resulted from an accidental over-
turning of some boxes in the struggle.
742 HEARSAY (Ch. 3
One objection made by the defendant to the admission of evidence de-
serves to be noticed. The plaintiff in his evidence described the manner
in which, as is contended, he was dragged by the watchman from the
boxes. After stating that he was thrown to the floor, and was being
roughly pushed by the watchman, he proceeded : "Then I saw another
man coming with the uniform of the boat on, and the cap, and he
said : 'All such men as you ought to be killed.' I says, 'What do you
want to kill me for?' He says, 'You farmers are so stingy, you are too
sting}- to buy a state-room, and you ought to be killed.' I said, 'You
ought not to call me stingy.' Then he said, 'Have you looked at your
ticket?' I think he had 'third assistant mate' on his cap; the cap had
a yellow cord, the same as the officers of the boat wore." It appeared
in proof that the person here referred to was one of the mates of the
Richmond. The defendant objected, at the trial, to the competency
of the statements of the mate. The objection was overruled, and an
exception taken.
It is now insisted that the defendant is not responsible for the brutal
language of its servants, and that the declarations of the mate to the
plaintiff were not competent as evidence against the carrier. We are
of opinion that these declarations constitute a part of the res gestae.
They were made by one servant of the defendant while assisting an-
other servant in enforcing its regulation as to deck passengers. They
were made when the watchman and the mate, according to the evidence
of the plaintiff, were both in the very act of violently "pushing" him,
while in a helpless condition, to that part of the boat assigned to deck
passengers. Plainly, therefore, they had some relation to the inquiry
whether the enforcement of that regulation was attended with unneces-
sary or cruel severity. They accompanied 'and explained the acts of
the defendant's servants out of which directly arose the injuries in-
flicted upon the plaintiff. Vicksburg & M. R. Co. v. O'Brien, 119 U. S.
99, 105, 7 Sup. Ct. 118, 30 L. Ed. 299; Ohio & M. R. Co. v. Porter, 92
111. 437, 439; Toledo & W. Ry. Co. v. Goddard, 25 Ind. 190, 191. As
bearing upon this point, it may be stated that the jury were instructed
that the case, as presented, did not authorize vindictive or punitive
damages, and that in no event could they award the plaintiff any
larger amount than would reasonably compensate him for the in-
juries received ; thus guarding against undue weight being given to the
harsh words of the company's servants, apart from their acts. * * *
Judgment affirmed.
Sec. 2) RECOGNIZED EXCEPTIONS 743
BARKER v. ST. LOUIS, I. M. & S. RY. CO.
' (Supreme Court of Missouri, 1894. 120 Mo. 143, 28 S. W. 866.)
Barclay, J. 74 This is an action to recover damages for personal
injuries sustained by plaintiff by reason of his alleged unlawful ejection
from defendant's train. * * *
Plaintiff's testimony was to the effect that he was ejected from the
rear platform of the last car of one of defendant's passenger trains by
the conductor and hrakeman, one dark night, about 10 or 11 o'clock, in
September, 1890, without cause, while the train was in motion, and
in a dangerous place. On the other hand, defendant's evidence ac-
counted for his ejection by his refusal to pay fare, insulting conduct on
his part towards fellow passengers, particularly women; negatived
all unnecessary force, and any unlawful act by defendant's agents, and
especially that he was ejected while the train was in motion. During
plaintiff's case, one of his witnesses was allowed to testify that he
(the witness) was in the smoking car when a stop occurred. After that
stop, the witness started back to the rear of the train. He met a man
on the way, who told him of the fact that plaintiff had been ejected.
Witness then entered the last car, from the rear end of which plaintiff
had been put off, and his testimony then goes on thus : "I went right
in. I rushed in the car, and asked Mr. Howe if he put that man off,
and he said he did. I asked him to stop and get him. I told him I
was afraid he was hurt, and he just remarked that he ought to have
broke his darned neck, or damned neck; I couldn't say for certain
which it was." This testimony was objected to as incompetent, irrele-
vant, and calculated to mislead the jury; but the objection was over-
ruled, and defendant duly excepted. The court remarked, in making
the ruling: "The declarations of Captain Howe are competent."
The witness above quoted testified, on his direct examination, that
this conversation with the conductor, Mr. Howe, took place about 8 or
10 feet from the front door of the rear passenger car, and that the train
"had stopped some time before that." On his cross-examination, he
further said, on this point (in answer to a question as to the interval of
time between the stopping of the train and his start from the smoking
car), that, to the best of his knowledge, it was 8 or 10 minutes. This
statement is thought by some of my learned colleagues to have been in-
tended by the witness to refer to some other "stop" than that at which
plaintiff was put off. At all events, it is clear that the conversation
with the conductor was not later than these 8 or 10 minutes after the
ejectment. It may have been earlier; but it was plainly after the fact,
and after the conductor had finished the act, and had gone to the other
end of the car, where he met Mr. Johnson, the witness. The whole
74 Part of opinion of Barclay, J., and dissenting opinion of Macfarlaue, J.,
omitted.
744 HEARSAY (Ch. 3
evidence does not bring that conversation into any other relation to
the act of plaintiff's ejection than is indicated by the facts given above.
The question, then, is, was the conversation admissible? The main
ground on which plaintiff seeks to justify its admission is that it
formed a part of the res gestae. On that ground my learned Brother
MacfarlanE has sustained its admissibility, though, it seems to me,
he apparently experiences some difficulty in reaching that result. In
Missouri it is too well settled by precedents to admit of doubt that no
such conversation could be given in evidence with the force of an
admission by defendant. Price v. Thornton (1846) 10 Mo. 135 ; Rogers
v. McCune (1854) 19 Mo. 558; McDermott v. Railroad Co. (1881) 73
Mo. 516, 39 Am. Rep. 526; Adams v. Railroad Co. (1881) 74 Mo.
553, 41 Am. Rep. 333 ; Aldridge v. Furnace Co. (1883) 78 Mo. 559 ;
Devlin v. Railway Co. (1885) 87 Mo. 545. The conductor was em-
ployed to represent the company in the management and control of
its train. The company was answerable for his actions within the fair
scope of that employment. But the company was certainly not bound
by any declaration of his motives which did not accompany or form
part of some act or transaction within the apparent line of the service
for which he was employed.
But it is needless to again go over the ground which the last group
of decisions covers. Under those cases it is plain that, if the conver-
sation between the witness and the conductor in this case has any
proper standing as evidence, it cannot be as an admission, but must be
as a part of that essential or descriptive matter belonging to the main
transaction itself which the law calls "res gestae," for want of any Eng-
lish term equally expressive. It is far from my present purpose to
attempt any sort of definition of "res gestae." Definitions are, no doubt,
useful and necessary to impart general conceptions of the subjects with
which jurisprudence deals; but they do not always suffice to solve the
difficulties met in the practical administration of law. In the case at
hand, the trainmen ejected the plaintiff from the train a few minutes,
at least, before the conversation in question took place. The former
act is the fact with which the conversation must be connected as a cir-
cumstance, to bring the conversation properly into the res gestae.
The conversation had two distinct bearings as a piece of evidence:
First, it embraced an implied admission that the conductor had put
the plaintiff off the train; and, secondly, it indicated motive,— that is
to say, hostility to plaintiff. Proof of the former we might overlook as
harmless, having no prejudicial effect on defendant's rights ; for both
sides admitted that plaintiff was ejected from the train. La Duke v.
Township of Exeter (1893) 97 Mich. 450, 56 N. W. 851, 37 Am. St.
Rep. 357. But upon the question of the conductor's motive of hostility
to plaintiff in ejecting him the conversation was vitally material, and
could not justly be considers! harmless, in view of the issue of exem-
plary damages which the court saw fit to submit to the jury. The
plaintiff was not entitled (as against the present defendant) to prove
SeC. 2> RECOGNIZED EXCEPTIONS 745
that motive as against the company by a declaration of the conductor
after the fact, as the Missouri cases already mentioned show.
The interval of time after the main fact is not, of itself, of control-
ling importance, though entitled to weighty consideration in determin-
ing what are res gestae. The testimony indicates that the conversation
of the witness with the conductor had no connection whatever with
the scene out of which the alleged cause of action arises. Nor was
the conductor's statement in any way connectible with that scene as a
circumstance of it. It was an entirely independent event, notwith-
standing it occurred within a comparatively short time after the act in
which plaintiff played a part. But, so far as concerns any relation be-
tween the ejection of plaintiff and the conversation, the latter might
as well have occurred eight or ten days, as two or three or ten minutes,
afterwards. Mere thoughts or feelings engendered by an occurrence
do not, in my opinion, form of themselves a sufficiently substantial con-
necting link between a fact and the subsequent talk of an eyewitness
about it to make that talk a part of the res gestae of the fact. The sug-
gestion to that effect in the learned opinion of my Brother Macfar-
i.anE does not, with due respect, seem to me maintainable, in its ap-
plication to the case at bar. Without attempting to declare any gen-
eral rule as to what matters constitute res gestae, and confining the
ruling to the immediate facts of this case, it would seem to me very
clear (were it not for the contrary opinion of some of my associates)
that the conductor's declaration is no part of the res gestae in the case
before us. In my opinion the court should have excluded it.
2. Nor can it matter, in the result, that the defendant's counsel, on
cross-examination, asked the witness to repeat his account of the
interview with the conductor. That course did not amount to a waiver
of the right to urge the exception already saved to the ruling of the
court in admitting that interview. Counsel might properly conform
to that ruling for the purposes of the trial, without thereby waiving the
right to review the admission of incompetent evidence that had come
in, over his objection. After that evidence was before the jury, he
might then combat it or meet it, as best he might, without waiving the
exception alreadv taken. Tobin v. Railroad Co. (Mo. Sup. 1891) 18
S. W. 996; Martin v. Railroad Co. (1886) 103 N. Y. 626, 9 N. E. 505.
In my opinion, the judgment should be reversed, and the cause re-
manded, for the reasons above given. It is so ordered.
Gantt, Sherwood, and Burgess, JJ., concur. Black, C. J., and
Brace and MacfarlanE, JJ., dissent.
"46 HEARSAY (Cll. 3
EASTMAN v. BOSTON & M. R. R.
(Supreme Judicial Court of Massachusetts, 1S96. 165 Mass. 342, 43
N. E. 115.)
Tort, for personal injuries occasioned to the plaintiff while in the
defendant's employ as a freight conductor. At the trial in the Superior
Court, before Blodgett, J., there was evidence tending to show that
the plaintiff, while in the exercise of due care, and in the perform-
ance of his duties, stepped onto the railroad track in Newburyport,
in front of a coal car, for the purpose of unsetting a brake ; that after
he had effected this he turned to step off the track, caught his foot
in an unblocked guard-rail, was thrown down and run over by one
or more wheels of the car, on account of which it was necessary
to amputate his leg; that after the accident the train was divided,
and the plaintiff, who remained on the ground for a few minutes,
was then removed to the side of the track, and was afterwards
taken to the hospital in Newburyport ; and that while he was so lying
on the ground, or about the time when he was taken up, he made a
statement to one Holland as to how the accident happened.
Holland, who was a brakeman and saw the accident, testified that
he got to the plaintiff within a minute after the accident. "Q. Before
he got up, and while he was there, did he state to you how it oc-
curred? A. Not before I got to him. Q. When you got there, I say.
A. No, sir. Q. Did he at any time make a statement of how it hap-
pened? A. He did. Q. Now, I want to know when that was. A.
Well, it wasn't more than, — time flies very quick, — it wasn't more than
rive minutes after I split the cars and took him out. Q. Not more than
five minutes? A. No, sir, I don't think it was. Q. Was it before
you had taken him up, or after you had taken him up ? A. I think it
was about the time we were taking him up. Q. Now I want to refresh
your memory a little. I want to know, now, if you told me, in the
court room yesterday, — in the ante room yesterday, — that he made the
statement to you within a half minute after the accident happened ? A.
No, sir ; I don't think I did. I might have said it, but I don't think I
did. Half a minute after it happened is a very short time. Q. Now,
you put it how long after it happened? A. About five minutes, I
should judge. Time flies very quick. Q. You say it was about the time
he was taken up from the track? A. Yes, about the time we were tak-
ing him out."
The witness would have testified that the plaintiff stated that the ac-
cident was caused by catching his foot in an unblocked guard-rail, and
was asked what the statement of the plaintiff was, but it was excluded,
and plaintiff excepted. The jury returned a verdict for the defendant,
and the plaintiff alleged exceptions.
Ar.r.i-x, J. The statements by the deceased were simply a narrative
of what had happened, and were not admissible as part of the res
Sec. 2) RECOGNIZED EXCEPTIONS 747
gestae. Lane v. Bryant, 9 Gray, 245, 69 Am. Dec. 282; Com. v.
Hackett, 2 Allen, 136; Com. v. McLaughlin, 5 Allen, 507; Williamson
v. Railroad Co., 144 Mass. 148, 10 N. E. 790.
Exceptions overruled. 76
STATE v. HUDSPETH.
(Supreme Court of Missouri, 1900. 159 Mo. 178, 80 S. W. 136.)
Burgess, J. 76 At the June term, 1898, of the criminal court of
Jackson county, the defendant was convicted of murder in the second
degree, and his punishment fixed at 10 years' imprisonment in the pen-
itentiary, for having theretofore at said county shot to death, with a
double-barrel shotgun, one Joseph W. Ressner. * *
The witness Kettle, immediately after coming to where deceased
was lying, went to Buckner, about four miles away, for a doctor. He
used a buggy and horse belonging to Mrs. Harris, at Lake City. The
horse was already harnessed to the buggy, which was standing in the
street. He drove to Buckner and back as fast as the horse could go, —
"got all he could get out of him." Witness thought it took him about
50 minutes to go to Buckner and back. Defense offered to show by
Kettle that as soon as he returned from Buckner he went into Van-
cleave's store, where Kessner was still lying, and that Kessner then
said to Mrs. Kessner or Mary Hudspeth, "If you hadn't taken that
gun away from me, it would have been different." This offer was ex-
cluded by the court, and defendant excepted. * * *
It is argued that the court erred in excluding the testimony of the
witness Kettle as to the statement of deceased made at the place of the
shooting, and in excluding the testimony of Samuel Way as to the
statement or declaration of deceased to Joseph Hudspeth, made at
the place of the shooting, and immediately upon his seeing said Jos-
eph. The statement of the deceased which defendant proposed to
prove by Kettle was made about 50 minutes after he was shot, and
the statement of deceased which defendant proposed to prove by Sam-
uel Way was made about 1 hour after deceased was shot. The ques-
tion is, were these statements admissible as part of the res gestae?
When this case was here before, we ruled that a similar statement
claimed to have been made by the deceased in the presence of other
parties immediately after the shooting was admissible in evidence, as
part of the res gestae ; and it must follow that proof of the statements
of deceased to the same effect made to other persons 50 minutes or an
hour after the shooting was also admissible for the same reason, un-
70 Compare Eby v. Travelers' Ins. Co. of Hartford, Conn., 258 Pa. 525, 102
Atl. 209 (1917*), admitting a patient's statements made about 15 minutes after
a fit of coughing, and as soon as be could speak, to the effect tbat be bad
swallowed some bristles which came loose from bis toothbrush.
7 6 Parts of opinion omitted.
?4S HEARSAY (Ch. 3
less the time which elapsed after the shooting until those statements
were made rendered proof of them inadmissible. As a rule, the
statements of neither parties nor bystanders, made after the event,
are admissible in evidence, but this is not so when the statements are
part of the res gestae, and "it is not, however, necessary that said
declarations, to be part of the res gestae should be precisely coincident
with the act under trial. It is enough if they spring from and are made
under circumstances which preclude the idea of design.
The test is, were the declarations the facts talking through the party,
or the party's talk about the facts. Instinctiveness is the requisite,
and when it is obtained the declarations are admissible." Whart. Cr.
Ev. (8th Ed.) § 691. The same author says: "Nor are there any
limits of time within which the res gestae can be arbitrarily confined.
They vary in length in each particular case." Whart. Cr. Ev. § 262.
In State v. Gabriel, 88 Mo. 631, on a trial under indictment for lar-
ceny of sheep, where the transaction was made up of a variety of in-
cidents extending over a period of several days, and was not at an end
until the sheep were branded as his own by the defendant, all acts and
words which occurred or were related during that period of time
tending to show that defendant branded the sheep by mistake or in-
advertence, and not with a larcenous motive, were held to be compe-
tent evidence in his behalf. In Stagner v. State, 9 Tex. App. 440, it
was held that statements made by the injured party 20 minutes after
he was shot were so intimately connected with the wounding as to neg-
ative the idea of manufactured testimony, and were admissible as part
of the res gestae. So, in the case of Castillo v. State, 31 Tex. Cr. R.
145, 19 S. W. 892, 37 Am. St. Rep. 794, it was held that the statements
made by the injured party in a few minutes after she was assaulted,
and also statements made about a half hour thereafter, while she was
lying upon a bench, suffering, bleeding, and prostrated, describing her
assailant to another witness, were competent and admissible for the
same reason. In 1 Bish. New Cr. Proc. (4th Ed.) § 1087, it is said:
"If, after an encounter which will end in death, the defendant or the
wounded man makes a statement while the heat of it is on, though after
the lapse of a period not definable in minutes, yet before there has
been time to reflect and plan, it is admissible."
The statements which defendant proposed to prove were in almost
the exact language of the statements claimed on the first appeal to have
been made by deceased to Mary Hudspeth immediately after the shoot-
ing, which were held to be admissible. When the statements under
consideration were made, the deceased was lying in the same place and
in the same position as then. The heat of passion was still on, and
the circumstances connected with the event uppermost in his mind.
They were voluntary, spontaneous, and uninfluenced by persuasion, by
suggestion, or other consideration, and, we think, admissible as part
of the res gestae. They tended to show a determination on the part
Sec. 2) RECOGNIZED EXCEPTIONS T40
of deceased to have killed defendant if the gun had not been taker,
from him, and, when taken into consideration with his repeated threats
to kill defendant, were of much importance to defendant in determin-
ing the question as to who was the aggressor at the time the fatal shot ,
was fired. * * *
Judgment reversed.
PEOPLE v. DEL VERMO.
(Court of Appeals of New York, 1908. 192 N. Y. 470, 85 N. E. 690.)
Willard Bartxett, J. 77 The indictment in this case charged the
defendant with the crime of murder in the first degree, committed at
the city of Rome, in Oneida county, on the 30th day of June, 1906,
upon the body of one Tony Page by means of a knife, with which a
fatal stab wound was inflicted in the abdomen, causing the death of the
victim on the following day. The defendant pleaded not guilty and tes-
tified as a witness in his own behalf, denying the infliction by him of
any stab wound whatever upon the body of the deceased, and giving
evidence which, if it had been believed by the jury, would have led
them to the conclusion that the injury which caused the death of Tony
Page was self-inflicted by means of a knife with which Page had en-
deavored to assault the defendant.
[It appeared without controversy that the defendant, the deceased,
Tony Page, and several others had been drinking in various saloons
during the evening, and that about midnight they started down the
street together talking, when some words were passed between de-
ceased and defendant.] 78 Tony Page responded with an opprobrious
epithet, at which the defendant laughed, and they all walked on a dis-
tance of about two blocks further, when Bochicecheo saw the defend-
ant start to run and exclaimed: "What is the matter with that fel-
low ?" Tony Page responded : "Maybe he saw something about the
store." As he said this he walked forward four or five steps and drop-
ped to the sidewalk. Bochicecheo asked him, "What is the matter?"
and he answered, "Del Vermo stabbed me with a knife." Bochicecheo
helped him into his home through the back yard, where his wife met
him, and in response to her inquiry as to what was the matter he again
said : "Del Vermo stabbed me with a knife." Page was then placed on
a couch and a physician was summoned by telephone. The patient was
found to be suffering from a stab wound in the abdomen, which was
between seven and eight inches deep, and had penetrated the intestines,
severed the mesentery artery, and punctured the liver. He died as the
result of this wound at 3 o'clock a. m. on July 1, 1906. * *
*
7 7 Parts of opinion omitted.
7 8 This part of the opinion has been condensed.
,750 HEARSAY (Ch. 3
The next exceptions in the order of their importance which call for
our consideration are those relating to the admissibility of the statement
of the deceased immediately after he was wounded to the effect that
Del Yermo had stabbed him, and his subsequent statements, which
were received as dying declarations. The first statement does not ap-
pear to have been offered or received as a dying declaration at all, but
was admitted rather as a part of the res gestae in the broadest sense
of that term. I think that it must be deemed to have been properly re-
ceived under the exception to the general rule excluding hearsay evi-
dence, which is treated by Prof. YVigmore under the convenient term of
"spontaneous exclamations." 3 Wigmore on Evidence, § 1745. That
exception may be stated as follows : Evidence is admissible of ex-
clamatory statements declaratory of the circumstances of an injury,
when uttered by the injured person immediately after the injury, pro-
vided that such exclamations be spontaneously expressive of the injur-
ed person's observation of the effects of a startling occurrence, and the
utterance is made within such limit of time as presumably to preclude
fabrication.
It will be observed that this exception contemplates and permits
proof of declarations by an injured person made after the event, so that
it cannot fairly be said that the words spoken really constituted a part
of the thing done. In some jurisdictions this has been regarded as a
fatal objection to the reception of such evidence. See Parker v. State,
136 Ind. 285, 35 N. E. 1105; State v. Estoup, 39 La. Ann. 219, 1
South. 448; State v. Hendricks, 172 Mo. 654, 73 S. W 194. In most
of the states, however, the doctrine is accepted. It was clearly sanc-
tioned by this court by what was said in Waldele v. N. Y. C. & H. R.
R. R. Co., 95 N. Y. 274, 279, 280, 47 Am. Rep. 41, in approval of the
decision of the Supreme Judicial Court of Massachusetts in Common-
wealth v. Hackett, 2 Allen, 136. In this Massachusetts case, which
was an indictment for murder, the evidence tended to show that the
defendant suddenly approached the deceased, one Gillen, in the night-
time, stabbed him in the abdomen, and ran away. When the blows
were inflicted, Gillen cried out, "I am stabbed." A witness for the
government testified that upon hearing this exclamation, and within
20 seconds after it was made, he went to Gillen and heard Gillen say :
"I'm stabbed — I'm gone — Dan Hackett has stabbed me." The admis-
sion of this testimony was sustained on the ground, as stated in the
opinion of Bigelow, C. J., that the remark of the deceased "was an ex-
clamation or statement contemporaneous with the main transaction,
forming a natural and material part of it, and competent as being origi-
nal evidence in the nature of res gestae. * * * They were uttered
after the lapse of so brief an interval and in such connection with the
principal transaction as to form a legitimate part of it, and to receive
'lit and support as one of tlie circumstances which accompanied and
illustrated the main fact which was the subject of inquiry before the
jury."
Sec. 2) RECOGNIZED EXCEPTIONS 751
Strictly speaking, the spontaneous declaration there under considera-
tion did not really form part of the res gestae, as being itself a verbal
act contemporaneous with the principal occurrence; for the exclama-
tion was uttered after the act of stabbing had been wholly completed
and after the assailant had fled, although it is true that the time
which had elapsed was very short. The decision, therefore, is clearly
an authority for the admissibility of proof of such exclamations rela-
tive to an injury, provided they are of the character and are made
under the conditions which have already been stated, although they are
subsequent in point of time to the infliction of the injury. If they are
the impulsive or instinctive outcome of the act, they need not be
strictly contemporaneous in order to render them admissible. *
The distinction between spontaneous declarations and other decla-
rations deemed part of the res gestae was clearly pointed out by the
present Chief Judge of this court when he was a member of the Ap-
pellate Division in the Second Department in the case of Patterson v.
Hochster, 38 App. Div. 398, 56 N. Y. Supp. 467, where he said:
"Declarations admitted as part of the res gestae may be divided into
three classes : The first is where they constitute a part of the transac-
tion itself which is sought to be proved. The second is where they tend
to qualify, explain, or characterize the acts which they accompany.
The third is where the declarations are made at the time of the trans-
action, but relate solely to the acts and conduct of others. The text-
books and decided cases justify the admission of all these declara-
tions on the same ground as being part of the res gestae. But it is
apparent that, logically and on principle, the admission of declarations
of the third class must stand on a different ground from that which
supports the admission of the two other classes. If a man, being
wounded, calls out, 'Jotm has stabbed me,' the declaration in no way
qualifies or explains the act of the person who stabbed him. In reality,
testimony to the declaration is pure hearsay, and is admissible in evi-
dence only upon the great improbability that the spontaneous utter-
ance of the instant should be false." * * *
Judgment affirmed. 79
19 Compare Greener v. Gen. Electric Co., 209 N. T. 135, 102 N. E. 527. 46 L.
R. A. (N. S.) 975 (1913), excluding a statement of the injured party in an-
swer to a question, although made almost immediately after the accident.
752 OPINIONS AND CONCLUSIONS (Cll. 4
CHAPTER IV
OPINIONS AND CONCLUSIONS
SECTION 1.— BY ORDINARY WITNESSES
LEWIS v. FREEMAN.
(Supreme Judicial Court of Maine, 1840. 17 Me. 260.)
Assumpsit against a surety to recover the price of certain goods
furnished to one Butler. The defence was that Butler had settled
for them.
The witness, on being questioned by the defendant as to the admis-
sions of the plaintiff in that conversation, testified, "that he thought the
plaintiff told him, butler had paid him for what cloths he had sold
and not brought back; was very confident he said so, but would not
swear that he did say so." The plaintiff contended, that upon the tes-
timony of Robinson, the jury could not legally return a verdict for
the defendant on the ground that Butler had paid for the cloths.
The Judge instructed the jury, that as witnesses must use their own
language in conveying their meaning, and as they express themselves
with different degrees of clearness, and use different degrees of cau-
tion in the phraseology they adopt, it was for the jury to give their
language a fair exposition; that if the testimony of Robinson had
proved to their reasonable conviction that the plaintiff had knowingly
and deliberately admitted that he had received full payment for the
first load of cloths from Butler, they might thereupon find a verdict
for the defendant.
Other points were made at the trial, and the jury returned a ver-
dict on each. They found on this, "that Butler did on his return from
his first trip deliver over to Lewis cloths and money enough to pay
up for the hundred dollars worth of cloths delivered on the strength
of Freeman's guaranty." The plaintiff filed exceptions. 1
Sin.i'i.KY, J. Tf the instructions respecting the testimony of Robin-
; were correct ; and the jury were authorized by that testimony to
find, that the plaintiff had been paid, it will not be necessary to consider
the other points made in the case.
The argument is, that there was no testimony to prove an admission
of payment, because the witness said he "would not swear, that he did
i Stat> meat condensed.
Sec. 1) BY ORDINARY WITNESSES 753
say so"; and that his testimony is not strengthened by the expres-
sion, "that he thought the plaintiff told him Butler had paid him."
In the case of Sebor v. Armstrong & trustee, 4 Mass. 206, it was
the province of the Court to decide the fact, and to give such effect to
the testimony as it might deserve. The trustee must discharge him-
self, and the only testimony to have this effect being his declaration
that he thought the paper payable to order might well be considered
as unsatisfactory. And the argument in this case might be regarded
as sound, if that were the only testimony before the jury upon this
point. But the whole of the expressions used by the witness are to
be considered, and in connexion with the conduct of the plaintiff. He
says, ''he thought the plaintiff told him Butler had paid for what cloths
he had sold and not brought back, was very confident he said so,
but would not swear that he did say so." The witness was speaking
under the obligation of his oath, when he said, that he was very con-
fident he said so, and that was speaking of his recollection of a fact
with no slight assurance that he was correct ; and when he adds, that
he would not swear to it, the idea communicated is, that he was very
confident, but not certain, that the plaintiff so stated. The witness
was not giving an opinion, but stating the strength of his recollection
of a fact. The circumstances stated by the witness respecting the con-
duct of the plaintiff and Butler, after Butler's return, tend to confirm
the conviction that the plaintiff had been paid.
The jury were the proper judges of the weight of the whole tes-
timony upon the point ; and the instructions were well suited to bring
their minds to a just conclusion.
Exceptions overruled. 2
STATE v. THORP.
(Supreme Court of North Carolina, 1875. 72 N. C. 186.)
Reade, J. 3 The prisoner was charged with drowning her child in
a river. A witness saw her going towards the river with a child in her
arms. The witness said he knew the prisoner and identified her, he
knew the child also, but he was one hundred yards off and was not
sure who the child in her arms was. He was then asked if he recog-
nized the child as the deceased? Which question was objected to by
2 And so in Clark v. Bigelow, 16 Me. 246 (1S39), impression : State v.
Flanders, 38 N. H. 324 (1S59), impression; Snell v. Moses. 1 Johns. (N. Y.i
96 (1S06), impression as to a conversation; Blake v. People, 73 N. Y. 5St>
(1878), that witness was not sure, but thought, etc
s Statement and part of opinion omitted.
Hint.Ev. — 48
754 OPINIONS AND CONCLUSIONS (Cll. 4
the prisoner and ruled out by the Court; for what reason we cannot
conceive, as it was clearly competent. Possibly it was ruled out as
being a leading question. The Solicitor then asked, "Is it your best
impression that the child she had in her arms, was her son Robert
Thorp?" The witness said it was. This question was objected to
but was admitted. If the former question was leading, this was more
so, but there is a more substantial objection to it.
It is true that in very many cases a witness may give "his impres-
sions" or his "opinions" as to facts. Indeed memory is so treacher-
ous, knowledge so imperfect, and even the senses so deceptive, that
we can seldom give to positive assertions any other interpretation than
that they are the impressions or opinions of the witness. Do you know
when a certain act was done? I do. When was it? I think it was
in January. Where was it? It was in Raleigh. At what place in
Raleigh ? I think it was at the hotel, it may have been at the capitol.
Who did it? Mr. A. Was it not Mr. B.? It was one or the other and
my best impressions is that it was Mr. A. All that would be proper
because the witness is speaking of facts within his knowledge and as
he understands them. So if in this case the witness had been asked
"Did you know the deceased child? Yes. Did you see it in the per-
son's arms? Yes. Did you recognize it as the deceased? Yes, I
think it was, that is my best impression." All that would have been
proper. But we think the case presented to us will bear the interpre-
tation that the witness said, "I saw the prisoner have a child in her
arms. I was so far off that I could not tell what child it was, but
I knew that she had a child of her own, and I suppose she would not
have been carrying any other child than her own, therefore I think
it was her own child. That is my best impression." And this was
clearly improper. This was but his inference from what he saw
and knew. And we suppose that any bystander in the Court who
heard the trial might have been called up and he would have testi-
fied that his "best impression" was that it was her child, from the
evidence. A witness must speak of facts within his knowledge. He
knew that the prisoner had a child of her own, and he knew that
she had a child in her arms, and these facts it was proper for him
to state, but he could not go further and say, "from these facts
which I know I infer that the child was her own, I am not sure but
that is my best impression." This may not have been the sense in
which he intended to be understood, but we think it will bear that
construction. And in favor of life we so construe it. He certainly
did not mean to say that he recognized the child as the child of the
prisoner, and yet he knew her child very well. Why did he not
recognize the child as he did the prisoner? Evidently because at that
di tance he could not recognize one child from another in the arms
of the prisoner. It was probably but little more distinct than a bundle
SeC. 1) BY ORDINARY WITNESSES 755
and he just took it to be her child, because she had it in her arms.
Probably this was all he meant by his "best impression." And it was
error to allow it. * * *
Venire de novo.*
COMMONWEALTH v. HAYES.
(Supreme Judicial Court of Massachusetts, 1SS4. 13S Mass. 185.)
Indictment, alleging that the defendant, on February 6, 1884, at Pea-
body, attempted to set fire to a building. Trial in the Superior Court,
before Pitman, J., who allowed a bill of exceptions, in substance as fol-
lows :
The government introduced evidence tending to prove that, between
nine and ten o'clock in the evening of the day named in the indictment,
a horse and buggy were driven up to the house of Sarah P. Farnham, in
Peabody, and were turned round in the yard, and stopped opposite an
open shed, the buggy being twenty-nine feet from the door of the
kitchen of the house when stopped. The noise of the carriage attract-
ed the attention of Mrs. Farnham, her husband, and of their servant,
one Bohan. The servant testified that, while the horse and buggy
were stopped as above stated, she saw a man come from the direction
of the shed and get into the buggy, and that he soon drove off. Mrs.
Farnham, her husband, and Bohan all testified that, after the man
left, they went into the shed with a light, and found there a cartridge
of Atlas powder, a fuse, and a bottle of kerosene.
Mrs. Farnham, among other witnesses who testified to the identity
of the man with the defendant, testified that she had known the de-
fendant by sight, but had never heard him speak before said Febru-
ary 6; that on that day, about noon, the defendant drove into the yard
in a sleigh, with another man, and stopped near the door of the house;
that neither of them got out of the sleigh ; that she went to the door,
and the defendant said, "Does Mr. Farnham live here?" and she re-
plied, "Yes, but is not at home;" that then he said, "Well, he lives
here, don't he?" and then he drove away; that that was all she ever
heard him say ; that the voice was coarse, gruff, and very ugly ; that,
on the same evening, while the buggy was stopped in her yard as above
stated, she went to the door and said twice, "Who is there?" and the
person in the buggy replied to the second question only, "What do you
think?" and that she did not see the person in the buggy. The dis-
trict attorney then asked her who it was that spoke. This question
was objected to, on the ground that she had no such means of knowl-
edge as would render an answer competent. The judge overruled the
* Compare Com. v. Moinehan, 140 Mass. 463, 5 N. E. 259 (1SSG), to the effect
that a witness might state that he thought a liquor was lager beer ; Green-
field v. People. 85 N. Y. 75, 39 Am. Rep. 636 (1881), where a lay witness was
permitted to state "as a fact" that certain spots were blood.
756 OPINIONS AND CONCLUSIONS (Ch. 4
objection; and the witness answered, "I can say from the voice that
it was the same man that spoke to me at noon, — I say it was William
Hayes."
The jury returned a verdict of guilty; and the defendant alleged ex-
ceptions.
By the Court. The testimony of the witness Farnham, identify-
ing the defendant by his voice, was competent. The weight of it was
for the jury, but it was properly submitted to them, to be considered in
connection with the other evidence of identity. Commonwealth v.
Williams, 105 Mass. 62.
Exceptions overruled. 5
LUND et ux. v. INHABITANTS OF TYNGSBOROUGH.
(Supreme Judicial Court of Massachusetts, 1851. 9 Cush. 36.)*
The plaintiffs offered the deposition of John Kendall, that "there
was a bad place at the side of the road, where they put in a culvert.
There had been a culvert put across. The condition of it was bad. At
the mouth of the culvert, it was a steep right down."
The plaintiffs also offered the deposition of one George Wright,
"that there was a bad place near there; a culvert that I thought a
dangerous place. I should judge it was about eighteen inches deep
and three feet wide, and I should think not far from six feet from the
cart rut. It was a common across the road and end open."
The above answers were, on the trial, objected to by the defendants'
counsel, on the ground that they conveyed an opinion. The counsel
for the plaintiffs contended that they conveyed no opinion as to wheth-
er there was a defect in the road, but were simply descriptive expres-
sions used by the witness, and qualified and explained by him.
The judge overruled the objection, and admitted the testimony. 7
Fletcher, J. It was maintained, on the part of the defendants,
that the answers to the twelfth and thirteenth interrogatories in the
deposition of John Kendall, and the answer to the seventh interroga-
tory in the deposition of George Wright, were improperly admitted in
evidence, because they merely expressed opinions of the witnesses, who
were not experts, and were not statements of any facts. But the
court do not so understand the testimony. The witnesses are not ask-
« And so In Ogden v. People, 134 111. 599, 25 N. E. 755 (1890).
See, also, Com. v. Best, 180 Mass. 492, 62 N. E. 748 (1902), where a wit-
ness was permitted to testify to the identity of a wagon from its peculiar
noise, and to state that the noise came from a certain direction.
For a collection of cases admitting opinions or conclusions because of the
difficulty or Impossibility of adequately describing the various facts observed,
State v. Pniett, 22 N. M. 223, 1G0 Pac. 362, L. R. A. 1918A, 65G (1910)
annot a ted.
e For the nature of this action, see ante, p. 733.
i Statement condensed and part of opinion omitted.
SeC. 1) BY ORDINARY WITNESSES 757
ed their opinion as to the sufficiency or insufficiency of the road.
But the inquiry was as to the actual condition of the road in point of
fact, and as to what the witnesses knew, not what was their opinion on
this subject. The answers of the witnesses describe the actual con-
dition of the road as within their personal knowledge, and are not ex-
pressions of opinions merely.
The answers are merely descriptive — in very general terms to be sure
— of the defective state of the road ; but the defendants might, if they
had thought proper to do so, have required the witnesses to state in
detail in what particulars the road was bad ; and, in the answer of the
witness Wright to the eighth interrogatory, the defect in the road
is particularly described. But this general form of expression does
not warrant the exception that the witnesses give opinions merely,
and do not state facts. This exception, therefore, is not sustained in
point of fact. * * *
New trial (on other grounds).
MUSICK v. BOROUGH OF LATROBE.
(Supreme Court of Pennsylvania, 1898. 184 Pa. 375, 39 Atl. 226.)
Trespass for personal injuries.
At the trial it appeared that plaintiff, on the night of October 14,
1893, fell down the steps of an entrance to an unprotected cellarway
leading from an alley twenty feet wide in the borough of Latrobe.
The night was dark, and it was raining. The plaintiff lived a few miles
from Latrobe, and was not familiar with the alley.
A witness, after describing the entrance to the cellar, was asked :
"Was this excavation out on the alley?" A. "It is on the alley; on
borough property." Q. "If a person were going in past the Potthoff
building on a dark, rainy night near to the excavation, and there were
no guards, signals, or other obstructions around this hole, state what
your opinion is with regards to the danger of the place."
The question was objected to by the counsel for the defendant, for
the reason that while the witness might detail the exact condition of
the alley, he is not supposed to determine whether or not its condition
amounts to negligence on the part of the borough, and that it is an
hypothetical case, and an opinion by the witness which is the province
of the jury to determine, and is therefore incompetent and irrelevant.
By the Court: Objection overruled, and exception for the defend-
ant.
A. "It would be dangerous." Q. "As you described the condition
of the area way the next morning after the accident, state whether or
not the place would be dangerous." A. "It would be dangerous." 8
s Statement condensed and part of opinion omitted.
758 OPINIONS AND CONCLUSIONS (Ch. 4
Williams, J. The general rule is well settled that the province of
a witness is to state facts, and that of the jury is to draw conclusions
from them. There are some exceptions to this rule, particularly when
the facts are of such a character as to make it necessary, or at least
helpful, that the jury be guided in drawing their conclusions by the tes-
timony of persons possessing superior knowledge of the subject under
investigation. In such cases the opinions of expert witnesses are giv-
en to the jury as to the effect of certain given facts, or their own con-
clusions drawn from a personal examination of some object. Witness-
es have also been allowed to express opinions upon the safe or unsafe
character of machinery, or of the condition of a highway, when an oral
description by witnesses would not adequately present the situation to
the jury. But, if the defect or obstruction complained of is such as
admits of a full and adequate description, the question whether it is
dangerous or not is not a question of skill or art requiring the aid of
expert testimony, but, like other questions of fact, is to be determined
by the jury. They must learn the facts from the witnesses, and then
draw their own conclusions as to the dangerous character of the high-
way, as well as to the contributory negligence of the traveler who
suffers an injury. In all ordinary cases, it would be as appropriate for
a witness to give his opinion about whether the plaintiff's conduct
amounted to contributory negligence or not as to whether a situation
fully described by him is dangerous in its character.
The first assignment of error, which complains of the admission of
such testimony in this case, is sustained. * * *
Judgment reversed. 9
SHATTUCK v. STONEHAM BRANCH R. R.
(Supreme Judicial Court of Massachusetts, 1S63. 6 Allen. 115.)
Petition to assess damages for taking land for railroad purposes.
During the trial the petitioner testified in his own behalf, and was
allowed, under objection, to state his opinion of the amount of dam-
age sustained by him, by reason of the taking of the land. John Hill,
a witness for the petitioner, was also allowed to testify, under objec-
tion, what he gave for a lot of land about a quarter of a mile from
that of the petitioner, and how the two lots compared in value. Luther
Hill, another witness for the petitioner, was allowed to testify, under
objection, as to the comparative value of the land in controversy and an
adjoining lot, a sale of which for a certain price had been put in evi-
dence. 10
■ And bo in Graham v. Pennsylvania Co.. 139 Pa. 140, 21 Atl. 151, 12 L.
Et, a. 293 (1891), danger of a statloa platform; Selfred v. Pennsylvania K.
206 Pa. 399, 55 Atl. 1061 (1903), danger of a grade crossing.
i or a collection of cases on this point, see Duncan v. Atchison, T. A s. F.
By. Co., 86 Kan. L12, 119 Pac. 856, 51 L. R. A. (N. S.) 565 (1911), annotated.
io Statement condensed and pari of opinion omitted.
ScC. 1) BY ORDINARY WITNESSES 759
Chapman, J. The first objection to the rulings of the officer who
presided at the trial is, that he allowed the petitioner to testify to the
amount of the damage done by the respondents to his estate.
It is not denied that the petitioner is by statute made a competent
witness, and might testify to anything that might be stated by any other
witness. It is settled in this commonwealth that where the value of
property, real or personal, is in controversy, persons acquainted with
it may state their opinion as to its value. Also where the amount of
damage done to property is in controversy, such persons may state their
opinion as to the amount of the damage. This is permitted as an ex-
ception to the general rule, and not strictly on the ground that such per-
sons are experts ; for such an application of that term would greatly
extend its signification. The persons who testify are not supposed to
have science or skill superior to that of the jurors; they have merely
a knowledge of the particular facts in the case which jurors have not.
And as value rests merely in opinion, this exception to the general rule
that witnesses must be confined to facts, and cannot give opinions, is
founded in necessity and obvious propriety. Vandine v. Burpee, 13
Mete. 288, 46 Am. Dec. 733; Wyman v. Lexington, etc., Railroad, 13
Mete. 326. Walker v. Boston, 8 Cush. 279; Dwight v. County Com-
missioners, 11 Cush. 201. The same rule is adopted in New York.
Clark v. Baird, 9 N. Y. 183.
But this rule of evidence is exceptional, and is confined to the sub-
ject of the controversy. Vandine v. Burpee, ubi supra. Evidence as
to other property similarly situated must be limited to facts. Evi-
dence of actual sales of other similar land in the vicinity is competent.
And much must be left to the discretion of the presiding officer in
deciding what lands are similar, and the length of time within which
the evidence shall be confined. These matters must vary in each par-
ticular case ; and as they must be passed upon by the officer, any rea-
sonable exercise of his discretion cannot be excepted to, unless in
cases where he reports the facts upon which his decision was founded.
On these principles, the plaintiff's testimony was admissible. So
also was that of John Hill, except so far as he was allowed to state
his opinion of the value of his own land, and compare it with that of
the plaintiff. That portion of it was admitted erroneously. The same
rule should have excluded a portion of Luther Hill's testimony. _ It is
impossible for this court to decide whether the testimony of Dike as
to the purchase of land for the cemetery was admissible. It would
seem to be within the discretion of the presiding officer to decide
Verdict set aside. 11
ii And so in Illinois & W. It. Co. v.. Von Horn, 18 111. 257 (1857); Snow
v. Boston & M. R. R., 65 Me. 230 (1S75) ; Brown v. Aitken, 90 Vt. 569. 99
Atl 265 (1916), from general knowledge of the property in that locality;
Montana R. Co. v. Warren, 137 U. S. 348, 11 Sup. Ct. 96, 34 L. Ed. 681 (1890).
RoLinson, J., in Kansas City S. B. R. Co. v. Norcross, 137 Mo. 415, 3S S.
TOO OPINIONS AND CONCLUSIONS (Ch. 4
DETROIT & M. R. CO. v. VAN STEINBURG.
(Supreme Court of Michigan, 1S68. 17 Mich. 99.)
CoolEy, C. J. 12 * * * Thirty-eight exceptions appear in the
.record, a number of which were not insisted upon on the argument,
ar.d will not be noticed here. Four of the others were assigned to
rulings of the Circuit Judge, allowing persons not shown to be
experts to testify to the rate of speed the engine was running at the
time the accident occurred. Each of these persons stood at the time
upori the ground or the platform near the place of the accident, and
saw tne train pass. Two of them had been a good deal accustomed to
railroa<l traveling; the others were not shown to have had any spe-
cial opportunity to judge of the speed of passing trains beyond that
possessed by people generally.
The point to which the attention of the witnesses was directed was
the speed of the passing object. The motion of the train was to be
compared to the motion of any other moving thing, with a view to
obtaining the judgment of the witness as to its velocity. No question of
science was involved, beyond what would have been, had the passing
object been a man or a horse. It was not, therefore, a question for ex-
perts. Any intelligent man who had been accustomed to observe mov-
ing objects, would be able to express an opinion of some value upon it,
the first time he ever saw a train in motion. The opinion might not
be so accurate and reliable as that of one who had been accustomed
to observe, with time piece in hand, the motion of an object of such
size and momentum; but this would only go to the weight of the testi-
mony, and not to its admissibility. Any man possessing a knowledge
W. 299 (1897): "It is difficult to lay down any fixed and definite rule as to
what acquaintance with property a witness must have or as to how his in-
formation must be derived, to say just when his opinion as to the value of
property shall be received and when excluded by the court, lie is an excep-
tion to the rule applying to expert witnesses in general, and whether he has
acquired sufficient information to qualify him to give an opinion is a ques-
tion that must rest largely within the discretion of the trial court. If through
the general avenues of information to which the average business man resorts
to Inform himself of values for the proper conduct of his business, and to
-uide his sales and purchases of the character of property in Controversy,
the witness has derived his information, he is qualified to testify, and it is
ii Cor the jury, in view of the manner of the acquisition of the information
detailed to them by the witness, to say what consideration will be given his
estimate. It was no error to permit this testimony to go to the jury for what
it was worth."
e, idso, Brady v. Brady, 8 Allen (Mass.) 101 (1864).
a large number of the cases on opinion as to the rental value of property
are collected in the notes to Carey Coal Co. v. Bebee Concrete Co., 11 It. B.
A. (N. s.) 199 (1913). Obviously some witnesses may not have sufficient gen-
eral knowledge of the value of land or chattels to enable them to form an
Intelligent opinion; In case of some varieties of property, only a limited
Class Of persons would have SUCh knowledge. Miller V. Smith, 112 Mass. 470
(1873), race horse.
ii Statement and part of opinion omitted.
Sec. 1) BY ORDINARY WITNESSES 70]
of time and of distances would be competent to express an opinion up-
on the subject. The case of Sisson v. Cleveland & Toledo R. R. Co.,
14 Mich. 489, 90 Am. Dec. 252, which was urged upon us as in point,
has no analogy. The question there related to the capacity of an en-
gine, about which none but an expert could be supposed to have knowl-
edge; but this relates to matter of common observation.
In order to establish the negligence of the defendants, the plaintiff
sought to show that the velocity at which the train was moving at the
time the accident occurred, was so great that it would have carried it
considerably by the usual place of stopping; and having put in evidence
to show the rate of speed, a witness was then asked, "At what rate
of speed should the train have been running to stop at the usual stop-
ping place?" This question was objected to, because the witness was
not shown to be an expert. This question evidently stands upon a
different ground from the last, and can only be answered by a person
of experience in the running of trains and in checking their speed.
I am inclined to think, however, that the witness had given evidence
which showed that he had had such opportunities as entitled him to
speak as an expert. He had been traveling as a mail agent regularly
for two years on the cars, and unless greatly defective in observation
or capacity, ought to be able to express an intelligent opinion. To
constitute an expert, it cannot be necessary that one should be con-
nected with the management of the train. If he is in position to wit-
ness the result of the management, and to observe the effect when the
means of checking the train are applied, he may be as competent to
express a satisfactory opinion as the conductor, the brakeman, or possi-
bly, even the engineer. If there was any error in this ruling, or in the
subsequent admission of similar evidence from another witness, whose
opportunities for observation had been similar, it was in allowing the
witnesses to answer the question before they had testified that their
observation had been such as to entitle them to express opinions. 13
SYDLEMAN v. BECKWITH.
(Supreme Court of Errors of Connecticut, 1875. 43 Conn. 9.)
Loomis, J. 14 On the trial of this case the plaintiff, to prove that
the horse sold him by the defendant was not safe, kind and gentle, as it
was warranted to be, offered certain witnesses, who, after they had
testified particularly to their knowledge of facts and of the conduct
is Accord: Bracken v. Pennsylvania R. Co., 222 Pa. 410, 71 AH. 926, 34 I>.
R. A. (N. S.) 790 (1909), annotated; Dugan v. Autluir^. 230 Pa. 299, 70 AH.
626 34 L. R. A. (N. S.) 77S (1911), annotated, speed of an automobile; Teck-
Lenburg v. Everett Ry., Light & Water Co., 59 Wash. 3S4, 109 Pac 1036, 34
L. R. A. (N. S.) 784 (1910), annotated, street car.
1 4 Statement omitted. *
762 OPINIONS AND CONCLUSIONS (Ch. 4
of the horse on various occasions, were asked this question : "From
your knowledge of the horse was he in your opinion a safe, kind
horse?" The counsel for the defendant objected to this question, but
the court admitted the evidence in connection with the facts. Was
this ruling correct?
The general rule is that witnesses must state facts and not their
individual opinions, but there are exceptions to the rule as well es-
tablished as the rule itself. Besides the case of experts where the sub-
ject matter requires special study, skill and experience, the opinions of
common observers in regard to common appearances, facts and con-
ditions have been received as evidence in a great variety of cases.
Thus, such opinions have been received in questions of identity as
applied to persons, animals, handwriting, and sounds, and in estimat-
ing the size, weight, distance and color of objects. State v. Shinborn,
46 N. H. 497, 88 Am. Dec. 224. Also to show the direction of force
as evidenced by its effects. The Clipper v. Logan, 18 Ohio, 375. That
certain blood stains came from below upward. Commonwealth v.
Sturtivant, 117 Mass. 122, 19 Am. Rep. 401. That certain footprints
corresponded with certain boots. Commonwealth v. Pope, 103 Mass.
440. That certain hairs were human. Commonwealth v. Dorsey, 103
Mass. 412. That a place in a highway was bad and dangerous. Lund
and Wife v. Inhabitants of Tyngsborough, 9 Cush. (Mass.) 36. That
a highway or bridge is safe. Ellsworth, J., in Dunham's Appeal from
Probate, 27 Conn. 198. That a heap of stones in a highway was an
object calculated to frighten horses of ordinary gentleness. Clinton
v. Howard, 42 Conn. 294. That effluvia from a certain privy and pig-
sty necessarily rendered the plaintiff's house uncomfortable as a place
of abode. Kearney v. Farrell, 28 Conn. 319, 73 Am. Dec. 677. That
a certain dam was sufficient to withstand the force of a certain stream
of water. Porter v. Pequonnoc Manufacturing Co., 17 Conn. 253.
That a person was intoxicated. People v. Eastwood, 14 N. Y. 562.
That one appeared sad. Culver v. Dwight, 6 Gray (Mass.) 444. That
a person was of a certain age. De Witt v. Barly, 17 N. Y. 344; Morse
v. State, 6 Conn. 9. That one is sane or insane. Grant v. Thompson,
4 Conn. 209, 10 Am. Dec. 119; Kinne v. Kinne, 9 Conn. 103, 21 Am.
Dec. 732 ; Dunham's Appeal from Probate, 27 Conn. 192. That a per-
son evinced a change in intelligence or a want of coherence in re-
marks. Barker v. Comins, 110 Mass. 477; Nash v. Hunt, 116 Mass.
237. That persons appeared attached to each other. McKee v. Nel-
son, 4 Cow. (N. Y.) 355, 15 Am. Dec. 384. That a horse appeared well
and free from disease. Spear v. Richardson, 34 N. \\. 428. That a
horse's feet were diseased. Willis v. Quimby, 31 N. H. 4S5. That
a horse had a sulky disposition. Whittier v. Franklin, 46 N. 11. 23,
Am. Dec. 185. '
These exceptions to the general rule are allowed on the ground of
ne< e 3lty, where the subject of inquiry is so indefinite and general as
not to be susceptible of direat proof, or where the facts on which the
SeC. 1) BY ORDINARY WITNESSES 763
witness bases his opinion are so numerous or so evanescent that they
cannot be held in the memory and detailed to the jury precisely as
they appeared to the witness at the time.
To render opinions of common witnesses admissible it is indispen-
sable that the opinions be founded on their own personal observation
and not on the testimony of others, or on any hypothetical statement
of facts, as is permitted in the case of experts. In some of the cases it
is held that the opinion can only be received in connection with facts
stated by the witness. In other cases this is not required ; as, for in-
stance, in questions respecting the identity of persons. A^witness
well acquainted with another usually identifies him without conscious
mental effort in the way of comparison or inference. In the absence
of striking peculiarities of form or feature the identification may be,
and often is, by the mere expression of countenance, which cannot be
described. And the witness may be correct in tiis opinion, and yet be
unable to give a single feature, or the color of the hair, or the eyes, or
any particulars as to the dress. In such cases the distinction between
• opinion and fact is so very nice that it might perhaps have been as
well to consider such identification as a fact, like any other direct per-
ception of the senses.
Where the disposition of a person or of an animal (as in this case)
is to be ascertained, the fact to be proved, being latent, can be ascer-
tained only by symptoms and outward manifestations. If these hap-
pen to be very striking they may remain in the memory and can be
stated, but in many cases they are very slight in each particular in-
stance, and only the impression of an indefinite number of such ap-
pearances remains, resulting in an opinion that the quality or dispo-
sition in question exists.
In all cases it is important, with a view to confirm the opinion, that
the witness should be able to state such facts as will show presumptive-
ly that his opinion is well founded. But it is not quite correct to say
that the opinion of a witness is entitled to consideration only so far
as the facts stated by him sustain the opinion, unless the proposition is
understood to include among the facts referred to, the acquaintance
of the witness with the subject-matter and his opportunities for ob-
servation. The very basis upon which, as we have seen, this excep-
tion to the general rule rests, is that the nature of the subject-matter
is such that it cannot be reproduced or detailed to the jury, precisely as
it appeared to the witness at the time.
We think the defendant was not aggrieved by the ruling of the
court in admitting the evidence objected to, and his motion for a new
trial is therefore denied.
In this opinion the other judges concurred. 15
is And so in Simoneau v. Keene Electric Ky. (N. II.) 100 Atl. 551 (1917).
761 OPINIONS ANO CONCLUSIONS (Cll. 4
GAHAGAN v. BOSTON & L. RY. CO.
(Supreme Judicial Court of Massachusetts, 1S61. 1 Allen, 1S7, 79 Am.
Dec. 724.)
Tort for an injury to the plaintiff's intestate while passing along a
highway in Cambridge, by being crushed between the cars of the de-
fendants, whereby his death was caused. * * *
Another ground relied upon by the plaintiff was, that the flagman
at the crossing was a careless and intemperate person, and for that
cause unsuitable to be employed in that capacity, and it appeared that
he had since been in the house of correction as a common drunkard.
The defendants denied that the flagman was an intemperate person,
and, for the purpose of showing that he was not so while in their
employ, asked different witnesses, against the objection of the plaintiff,
whether, during a series of years, when they had often been at the
crossing, the flagman was attending to his duty, and whether they ever
saw any indication of intemperance in his conduct, and if he appeared
to be a man competent to his place. These questions were asked wit-
nesses not as experts or having any peculiar skill. 10
Hoar, J. * * * The plaintiff's evidence was not as to the conduct
or condition of the flagman at the time of the accident, but was of-
fered to prove that the defendants were negligent in employing an
intemperate and incompetent person. This raised directly the ques-
tion as to his general habits and behavior, and it was therefore right
to allow the defendants to show that he was careful, attentive and tem-
perate. Robinson v. Fitchburg & Worcester R. R. Co., ubi supra
[7 Gray, 92]. This was a fact which could be proved by witnesses
who had seen his conduct, and could testify to the facts which they
had observed. It did not require that they should be experts. * * *
Judgment on the verdict. 17
REG. v. ROWTON.
(Court of Criminal Appeal, 18G5. 10 Cox, Cr. Cas. 25.)
Cockburn, C. J. 18 The question in this case is, whether the an-
swer given by a witness, who was called to rebut the general evidence
to good character which had been given in favour of the prisoner,
and who was asked what the defendant's general character for de-
ie Statement condensed and part of opinion omitted.
it But Bee Langston v. Southern Electric R. Co., 147 Mo. 457, 48 S. W. 835
(1898); Johnson v. Caughren, 55 Wash. 125, 104 Pac. 170, 10 Ann. Cas. 1148
(1909). Apparently the majority of the courts exclude such opinion, but differ
considerably as to the reason.
i8 Statement, parti of opinions of Cockburn, C. J., and Barle, J., the opin-
ions of Martin, B., and WlUes, J., and the additional opinion of Cockburn,
0. J., are omitted.
Sec. 1) BY ORDINARY WITNESSES 7G5
cency and morality and whose answer was, to the effect or in these
terms, "I know nothing of the neighborhood's opinion, because I was
only a boy at school ; but my own opinion and the opinions of my
brothers who were also pupils of his is, that his character is that of
a man capable of the grossest indecency, and the most flagrant im-
morality;" the question is whether it was proper to leave that answer
to the consideration of the jury who tried the case. I am of opinion
that it was not, and the conviction therefore cannot stand. Two ques-
tions present themselves ; the first, whether when evidence in favour of
the character of the prisoner has been given on his behalf, evidence of
bad character can be adduced upon the part of the prosecution to rebut
the evidence so given. I am clearly of opinion that such evidence may
properly be received. * * *
Assuming, however, that the evidence was properly received to rebut
the prior evidence of good character adduced by the prisoner, the
question still presents itself of whether the answer which was given
to a question perfectly legitimate in its character was an answer which
it was proper to leave to the jury. In the first instance it becomes
necessary to consider what is the meaning of evidence to character.
It is laid down in the books that a prisoner is entitled to give evidence
as to his general character. What does that mean? Does it mean
evidence as to his reputation amongst those to whom his conduct and
position is known, or does it mean evidence of disposition ? I think it
means evidence of reputation only. I quite agree that what you want
to get at, as bearing materially on the probability or improbability of the
prisoner's guilt, is the tendency or disposition of his mind to commit
the particular offence with which he stands charged ; but no one ever
heard of a question put deliberately to a witness called on behalf of a
prisoner as to the prisoner's disposition of mind. The way, and the
only way, the law allows of your getting at the disposition and tendency
of his mind is by evidence as to general character founded upon the
knowledge of those who know anything about him and of his general
conduct. Now that is the sense in which I find the word character
used and applied by all the text writers of authority upon the subject
of evidence. Mr. Russell in his book, which has now become a stan-
dard work of authority, puts the admissibility or the reception of evi-
dence to character upon this ground, that the fact of a man having had
an unblemished reputation up to the time of the particular transac-
tion in question, leads strongly to the presumption that he was incapable
of committing, and therefore did not commit the offence with which
he stands charged.
We are not now considering whether it is desirable that the law of
England should be altered in this respect, or whether it should be com-
petent for you to get at the tendency and disposition of a man's mind,
which becomes an element in the consideration of the case, by evidence
of his general disposition. It may be that it would be expedient to im-
port into the administration of our law the practice of some other
766 OPINIONS AND CONCLUSIONS (Cll. 4
countries and to go into the history of a man's antecedents, with the
view on the part of the prosecution of showing that he is capable and
therefore likely to commit the offence ; or, stopping short of that, it
may be expedient that if you allow the prisoner the advantage of in-
troducing, if he pleases, the issue of character to go into the facts
from which the inference as to character might be drawn in his favour.
No one pretends that you can ask as to a specific fact, though every
one will agree that one fact of honesty or dishonesty, as the case may
be, would weigh infinitely more than the opinion of his friends or neigh-
bors as to his general character. But that cannot, according to the
practice, be done. The truth is, this part of our law is an anomaly.
Although, logically speaking, it is quite clear that an antecedent bad
character would form quite as reasonable a ground for the presumption
and probability of guilt as previous good character lays the foundation
of innocence, yet you cannot, on the part of the prosecution, go into
evidence as to bad character. This allowing of evidence of good char-
acter in favour of the prisoner to be given, has grown up from a de-
sire to administer this part of our law with mercy as far as possible.
It has sprung up from a time when the law was according to the com-
mon estimation of mankind severer than it should have been.
Be that as it may, this class of evidence has engrafted itself t as a
sort of anomalous exception on our law, and we must deal with it as
we find it, and the opinion of all who have dealt with the subject of
evidence is, that it is to reputation we must confine it. It is true that
in practice, whenever a witness is called to character it gives a greater
cogency and force to his evidence, if the evidence be introduced by a
statement of circumstances from which it may be the more apparent
and readily believed that the witness has had a full and abundant op-
portunity to acquire information so as to "be able to speak satisfactorily
upon the character of the prisoner; and in practice it is very often
carried beyond what, I think if we stood upon the strict letter of the
law, can be altogether justified. But Mr. Phillips has truly pointed out
that facts which do not come within the rule that evidence may be re-
ceived of general character, are very often given in evidence in fa-
vour of prisoners. But when we come to consider the question of
what, in the strict interpretation of the law, is the limit of such evi-
dence, I must say, in my judgment, it must be restrained to this, the
evidence must be of the man's general reputation and not the individual
opinion of the witness. I put a question in the course, of the dis-
cussion, to which I did not receive an answer which at all tended to
shake my opinion upon this point; and the question was — suppose a
witness acknowledges, in answer to a question put to him relative to the
general character of the accused, that he knows nothing of the general
character, but that he had had abundant opportunity of forming an
individual opinion as to his honesty or the particular moral quality
that came in question in the particular case, I take it to be clear that
if that question be objected to, it could not be received in evidence.
SeC.l) BY ORDINARY WITNESSES 7<h
The witness who acknowledged that he knew nothing of the gem ral
character, and had no opportunity of knowing it in the sense of
reputation, would not he allowed to give an opinion as to a man's
character in the more limited sense of his disposition.
Now, then, if that be the true doctrine on the subject of the admis-
sibility of evidence to character in favour of the prisoner, the next
question that presents itself is within what limits must the rebut-
ting- evidence be confined which is adduced to meet that evidence
which the prisoner has brought forward? Now, I think that evi-
dence must be of the same character and kept within the same limits ;
that while you can give evidence of general good character, so the
evidence called to rebut it must be evidence of the same general de-
scription showing that the evidence which has been given to estab-
lish a good reputation on the one hand is not true because the man's
general reputation was bad. Now, then, what is the answer in the
present case? The witness, it seems, disclaims all knowledge as to
the general reputation of the accused ; what he says is this : — "I know
nothing of the neighborhood's opinion." I take the word neighborhood
to mean, "I know nothing of the opinion of those with whom the man
has in the ordinary occupations of life been brought immediately into
contact. I knew him and so did two brothers of mine when he was
in school, and, in my opinion, his disposition," — in that sense the word
"character" comes in question when you look at the answer, — "in
my opinion his disposition is such that he is capable of committing the
class of offences with which he stands charged." I am strongly of
opinion that the evidence is not admissible. * * *
ERLE, J. * * * With respect to the second question, I do not
agree with the Lord Chief Justice. I am entirely of opinion with him
that individual facts are to be excluded, and whether the answer given
by the witness does comprise something in the nature of an in-
dividual fact or not, I do not stop to inquire, because it appears to me
that a question of very general importance has been raised and has
been argued ; and as to this question of general importance I assume
that the answer understood in such sense is admissible. What is the
principle of admitting evidence of character? I am of opinion that
the evidence is admissible for the purpose of showing the disposition
of the party accused, and raising a presumption from that disposition,
that he had not committed the crime imputed to him. Now, disposi-
tion cannot be ascertained directly; it is only to be ascertained by the
opinion of others, and the opinion of others must be founded either
on their own personal experience, or must be founded on the expres-
sion of opinion by others whose opinion, if it ought to have any avail,
ought to be founded on their personal experience.
The point at issue between us is whether the Court is at liberty to
receive a statement of the repute of a person founded on personal ex-
perience of the witness who attends to give in evidence his estimate of
the disposition of the prisoner, an estimate of the character of the
768 OPINIONS AND CONCLUSIONS (Cll. 4
prisoner, taking it in the sense of disposition, which long personal
knowledge and acquaintance of his habits enable him to form. I am
of opinion that each source of evidence is admissible : you may have
the general rumour prevalent in the neighborhood where the party re-
sides, and, according to my opinion, you may have the personal ex-
perience of those who have had abundant opportunity of forming a
more real substantial guiding opinion than that which is to be gathered
from the casual conversation of persons. According to my experience
I never saw a witness examined to character without an inquiry into
his own personal means of knowledge of that character. I have never
known the evidence to go to the jury without, according to my expe-
rience, their being told to estimate the weight of the evidence entire-
ly upon the personal experience of the witness. A witness is called
to say that "this man has been in my employ for twenty years, and I
have always regarded him with the highest estimation and respect, but
I never heard a human being speak of him in my life."
I take it that the principle that the Lord Chief Justice has laid down
would require that the presiding judge when the evidence was offered
should say it is not admissible. "I know nothing but from my persona-
experience; I never heard a human being express an opinion of him,
but I have had abundant experience of him, and he is one of the
worthiest of the race he belongs to." That is personal experience.
That is the point on which I differ. To my mind that personal ex-
perience enables the witness to say "my repute of him is such as I
express," and that personal experience gives cogency to* the evidence ;
whereas a witness saying "I have heard some persons say — I have
heard generally a report in favour of the prisoner," is very slight in
comparison. I think if the proposition is that general character is
alone admissible, it is an impossible fact to state. There is no such
think as general rumour; it lies in the collection of the sayings of a
number of individuals ; you cannot ask who spoke that as an individual
fact, but it is a general inference supposed to be from hearing a num-
ber of separate and specific statements in favour of the party. I think
that the notion that general character is alone admissible, is not strict-
ly accurate, if you come to limit it to separate individuals. If a witness
was asked what individual has he ever heard give a particular opin-
ion — an opinion of a particular fact, that would be wholly inadmissible.
I attach considerable weight to this distinction, because in my
opinion the best character is that which is the least talked about. If the
discussion is whether the party is honest or not, if the answer is we
believe him honest, so far from that amounting to evidence in favour of
his honesty superior to that of a man whose honesty was never thought
of being questioned, I should say that it should have a different ef-
fect to that. I know that is a wide and general question. I must
. that I have attempted to give expression to the arguments of Mr.
Taylor, which commanded my assent upon ibis branch of the argu-
ment, and 1 have stated how my experience has been with respect to
Sec. 1) BY ORDINARY WITNESSES 769
asking for the personal experience of the witness. When I look to
the case of Rex v. Davidson, 31 St. Tr. 189, 190, which was cited by
the learned counsel for the prosecution, I am strongly confirmed in
saying that in my opinion Lord Ellenborough held, and Mr. Holroyd
and the other counsel in that case were all of them of opinion, that the
personal experience of a witness, or an opinion founded upon his per-
sonal experience, was admissible in evidence. There were eleven wit-
nesses to character called in the case of Rex v. Davidson, and though
I have not looked at the book for some time, according to my expe-
rience of that case, five or six out of the eleven gave very considerable
evidence of their personal experience so as to show the means they
had of founding an opinion upon personal experience. Lord Moira
was the first witness called, and he stated that the prisoner had been
employed in India and in other places for a great many years, and
when he came to a statement of a specific transaction, then it was that
Lord Ellenborough interfered, and said particular facts are never
admissible. I find out of the eleven witnesses each of them was ask-
ed what were their means of knowledge of the matter, and what was
their opinion, and the question put was, "In your opinion is he capable
of committing a crime of this description."
I can only say from the numerous reports the practice appears to be
very strongly in favour of my opinion, that witnesses are frequently
stopped by an attempt to introduce an individual fact. Means of
knowledge is the foundation of the general inference of character.
Whatever difference of opinion there is between the Lord Chief Jus-
tice and myself on the second question, I entirely concur in the first
question. In the particular case, the question "what was the charac-
ter of the prisoner?" and the answer of the schoolboy "I knew him at
school and I say his character is bad," if it had stopped there it would
have fallen within my principle, and would have been admissible ;
it was a statement of personal experience, and he was bound to give his
answer according to the general inference he had drawn from his per-
sonal experience as to the character, but he added a specific fact,
"My two brothers told me something." That individual fact, in an-
swer, would not be admissible, but in a grave case involving a very im-
portant question I cannot put it minutely on the particular answer. On
the general ground I have stated I think that both questions ought to be
answered in the affirmative, and that the conviction should be af-
firmed.
Cockburn, C. J. I would not be thought for a moment to make
any attempt to reply on anything that has fallen from the Chief Jus-
tice of the Common Pleas. I am only anxious that in consequence of
one observation made, I should not for one moment be misunderstood
in the judgment I have pronounced. I am ready to admit that that
negative evidence to which I have referred, of a man saying, "I never
heard anything against the character of the person of whose character
IIint.Ev. — 19
770 OPINIONS AND CONCLUSIONS (Cll. 4
1 come to speak," should not be excluded. I think, though it is
given in a negative form, it is the most cogent evidence of a man's
good character and reputation, because a man's character does not get
talked about till there is some fault to be found with him. • It is the
best evidence of his character that he is not talked about at all. I
think the evidence is admissible in that sense. I am only anxious that
I should not be misunderstood.
I will just mention that upon the first point all my learned brothers
agree with the judgment I have pronounced ; and the Lord Chief
Baron, my Brothers Williams, Martin, Channell, Blackburn,
Keating, Pigott, and Shee all concur upon the second point.
Conviction quashed. 19
PEOPLE v. EASTWOOD.
(Court of Appeals of New York, 1856. 14 N. T. 562.)
On the trial of the defendant on a charge of homicide.
One Green was called for the prisoner, and testified that he arrived
at the scene of the affray soon after the deceased was knocked down ;
that he then saw Eastwood, with whom he was well acquainted, and
who was his relative ; that he was accustomed to see men under the
influence of liquor and intoxicated ; and that the prisoner appeared as
though something was the matter with him. The counsel for the pris-
oner then put the following question to the witness : From his con-
duct and deportment, and other facts connected with it, state whether,
in your judgment, he was to any considerable extent under the influence
of intoxicating liquors? The counsel for the prosecution objected to
this question on the ground that it was not competent for the wit-
ness to state his opinion ; that he must be confined to a statement of
the facts. The court sustained the objection, and the defendant's
counsel excepted. The witness then testified to some facts tending to
prove that the prisoner was intoxicated. 20
Mitchell, J. * * * The objection was accordingly to the form
of the question, as if it sought the witness' opinion. If the opinion of
the witness had been asked as to facts, not within his own observation,
the objection would have been good; as to such facts, opinions can be
given generally only as to matters of science or art, and by men of
the particular science or art. The Court of Oyer and Terminer were
probably misled by the form in which the question was put. The
inquiry was not intended to bring out an opinion, but to lead the wit-
ness to answer to a fact which he saw. If the question had been (as
it might have been) direct, "What was the condition of the prisoner
n See, also, People v. Albers, 137 Mich. 67s. ioo N. \v. oos (1004); People
v. Van Gai L89 N. Y. 108, 82 N. B. lis. 22 L. B. A. (N. S.) 050, 12 Ann.
i 745 (1907), where a number of the cases are collected.
so Statement condensed and part of opinion omitted.
Sec. 1) BY ORDINARY WITNESSES 77 1
as to sobriety at that time?" it probably would have been answered
(as it had been before, by other witnesses) without objection. It did not
become incompetent by adding the words, "in your judgment," while
the judgment was restricted to what the witness saw. A child six
years old may answer whether a man (whom it has seen) was drunk or
sober; it does not require science or opinion to answer the question,
but observation merely ; but the child could not, probably, describe the
conduct of the man, so that, from its description, others could decide
the question. Whether a person is drunk or sober, or how far he was
affected by intoxication, is better determined by the direct answer of
those who have seen him than by their description of his conduct.
Many persons cannot describe particulars; if their testimony were ex-
cluded, great injustice would frequently ensue. The parties who rely
on their testimony will still suffer an inconvenience, for the court and
the jury are always most impressed by those witnesses who can draw
and act a living picture before them of what they have seen, so that
if there is any controversy as to the fact, such witnesses control; if
there is no controversy as to it, the general testimony answers all use-
ful purposes. The Supreme Court was right in granting a new trial
on this ground ; and the judgment and order granting such new trial
should be affirmed.
Judgment accordingly. 21
STATE v. TILGHMAN.
(Supreme Court of North Carolina, 1850. 33 N. C. 513.)
Pearson, J. 22 We have considered the several questions presented
by the case as made up by his Honor, and have come to the conclu-
sion that there is no error.
The first exception is untenable. The condition of the deceased
was such as to make his declarations, competent evidence, as "dying
declarations." It is not necessary, that the person should be in articulo
mortis, (the very act of dying;) it is sufficient if he be under the ap-
prehension of impending dissolution ; when all motive for concealment
or falsehood is presumed to be absent, and the party is in a position
as solemn, as if an oath had been administered. * * *
The second exception, because of the rejection of the opinion of
the wife of the deceased, that "she thought, the deceased thought, he
would not die from the wounds," is also untenable. A witness is al-
lowed to give his opinion as to the sanity of one at the time he made
his will : or as to the affection of a wife towards her husband, viz. :
whether she loved him or not; because a witness may have acquired a
2i And so in City of Aurora v. Hillman, 90 111. 61 (1878) ; Com. v. Eyler, 217
Pa. 512, 66 Atl. 746, 11 L. R. A. (N. S.) 639, 10 Ann. Cas. 786 (1907), anno-
tated.
22 Statement and part of opinion omitted.
772 OPINIONS AND CONCLUSIONS (Ch. 4
knowledge of the fact, from a thousand little circumstances occurring
at different times which it is not possible to communicate ; but the
matter to which our attention is now directed is not of that charac-
ter. What the deceased thought of his condition, was to be judged of
by the state of his wounds, and what he then and there said and did.
These circumstances it was in the power of the witness to communi-
cate to the Court:, and the Judge did right, requiring her to do so,
whereby he was enabled to form an opinion, instead of allowing the
witness to form one for him. * * *
No error.
CLAPP v. FUIXERTON.
(Court of Appeals of New York, 1S66. 34 N. Y. 190, 90 Am. Dec. 6S1.)
Appeal from a judgment admitting a will to probate.
On the part of the contestant, evidence was given tending to show
that at the date of the will the Testator was enfeebled by age, disease
and infirmity; that his mental faculties were impaired; that he was lo-
quacious and querulous; that he was forgetful of facts and events,
which even an old man would be likely to remember; that he was
conscious of these infirmities, and complained of them; and that the
proponent, with whom he lived, had characterized him as childish, not
only in conversation, but also in a letter to her sister, written the spring
before the execution of the will.
To this was superadded proof by witnesses who were not claimed to
be experts, but who stated the facts on which their opinions were bas-
ed, that, in their judgment, he was incapable of transacting business
during the last year of his life.
This proof was met by evidence of a similar character from witness-
es on the part of the proponent, who, in some instances, without
stating the facts on which their judgment was based, testified that his
mind, in their opinion, was sound. Exceptions were taken on both
sides to the admission of this description of evidence. 23
Porter, J. The surrogate seems to have assumed that non-pro-
fessional witnesses, who did not attest the execution of the will, were
competent to express an opinion on the general question of testamen-
tary capacity. When a layman is examined as to facts, within his own
knowledge and observation, tending to show the soundness or un-
soundness of the testator's mind, he may characterize, as rational or ir-
rational, the acts and declarations to which he testifies. It is legitimate
to give them such additional weight as may be derived from the con-
viction they produced at the time. The party calling him may require
it, to fortify the force of the facts, and the adverse party may demand
it as a mode of probing the truth and good faith of the narration. But
to render his opinion admissible, even to this extent, it must be limited
ii Statement condensed and part of opinion omitted.
Sec. 1) by ordinary witnesses 77:;
to his conclusions from the specific facts he< discloses. His position is
that of an observer and not of a professional expert. He may testify
to the impression produced by what he witnessed ; but he is not legally
competent to express an opinion on the general question, whether the
mind of the testator was sound or unsound.
An exception to this rule is recognized in the case of attesting wit-
nesses. They are present at the very act of execution, and their opin-
ions on the general question of testamentary capacity are admitted ex
necessitate. It is the policy of the law to provide all possible safe-
guards for the protection of the heir as well as the testator. No light
is excluded in reference to the res gestae, which can be furnished by the
immediate actors. The subscribing witnesses may be required to state,
not only such facts as they remember, but their own convictions as to
the testator's capacity ; for it may well happen, that on so vital a point
they may retain a clear recollection of the general result, long after
the particular circumstances are effaced by lapse of time or obscured
by failing memory.
In the present case, the attesting witnesses were not called upon to
express their judgment; but others, not qualified to speak as experts,
were permitted to testify generally, that in their opinion the testator
was of sound mind. That this ruling was wrong is shown, with great
clearness and force, in the opinion delivered by Judge Bockes at the
General Term. If the error had occurred on the trial of an ordinary
action at law, it would have called for a reversal of the judgment, in
accordance with the rule on this subject, as heretofore limited and de-
fined by the successive decisions in the case of De Witt v. Barley 9
N. Y. 371 ; 17 N. Y. 340, 347.
The court below was right however in holding that the error was
not fatal, if it be apparent, upon the whole case, irrespective of the
evidence improperly admitted, that the testator was clearly competent,
and that the will was properly admitted to probate. On appeals from
the decrees of surrogates, the Supreme Court succeeds to the jurisdic-
tion and authority of the old Court of Chancery. The review is in
the nature of a rehearing in equity; and the admission of improper
evidence, on the original hearing, furnishes no ground for reversing
the final decision, if the facts established by legal and competent testi-
mony are plainly sufficient to uphold it. Schenck v. Dart 22 N Y
420, 421. * * *
Affirmed. 24
24 For a review of the intermediate New York cases, see Holcomb v. Hol-
comb, 95 N. T. 316 (1884); People v. Youngs, 151 N. Y. 210, 45 N. E. 460
(1S97). And so in McCoy v. Jordan, 184 Mass. 575, 69 N. E. 358 (1904).
See, also, In re Myer's Will, 184 N. Y. 54, 76 N. E. 920, 6 Ann. Cas. 26
(1906), emphasizing the point that the impression which the witness may state
must have been produced by the conduct at the time. Much the same rule
as to the time element appears in Queenan v. Oklahoma, 190 TJ. S. 54S 23
Sup. Ct 762, 47 L. Ed. 1175 (1902). For critical comment on the doctrine of
the principal^ case, see Hardy v. Merrill, 56 N. H. 227, loc. cit 250, 22 Am.
Kep. 441 (187o).
774 OPINIONS AND CONCLUSIONS (Ch. 4
ATLANTA ST. R. CO. v. WALKER.
(Supreme Court of Georgia, 1893. 93 Ga. 462, 21 S. E. 48.)
Bleckley, C. J. 25 * * * The plaintiff, testifying as a witness in
his own behalf, after stating that he had suffered pain ever since the
injury, and was still suffering; that he could not lift as well as he did ;
and that, in lifting anything heavy, he suffered at night from it ; that he
suffered more in cloudy than in fair weather ; that there was pain in
his ankle ; his leg bone ached ; and that his back hurt him every time
he lifted any little thing, — was allowed to give his opinion that he
would feel the injury as long as he lived; that his pain and suffering
would be permanent. The view of the court was that, as the question
of permanency was one of opinion, the plaintiff, although no expert,
was competent to give an opinion in connection with his reasons for
it. In this, we think, the court was mistaken. Whether the injuries
and their effects were permanent or temporary was certainly matter
of opinion; but the jury, in so far as they were unaided by expert evi-
dence, should have been allowed to form their own opinion, not from
that of nonexperts, but from the facts as proved by the witnesses. The
plaintiff was competent to testify to his feelings, pain, and symptoms,
as well as to all the characteristics of the injury, external and internal.
This was the limit of his competency, and any opinion legitimately
arising out of the facts could be more safely formed by the jury than
by him. Scarcely anything is less reliable than a sick plaintiff's opin-
ion of his own case, when he is in pursuit of damages.
True, the Code, in section 3867, declares that "where the question
under examination and to be decided by the jury, is one of opinion,
any witness may swear to his opinion or belief, giving his reasons
therefor." The class of questions here referred to must be such as lie
within the range of common opinion, although they may be somewhat
within the province of scientific opinion, also. A fair illustration would
be the question of sanity or insanity. Any witness may give his opin-
ion upon such questions, after stating the facts on which it is founded.
But suppose the question were whether, in a given case, insanity was
permanent or temporary. This would be a question for scientific ex-
perts ; and no court would think of taking the opinion of an ordinary
witness upon it, with or without the facts on which the opinion was
founded. Such a witness would be competent, upon stating the facts,
to testify to his belief of the sickness or health of any one, or that he
suffered pain. But this is a very different matter from taking his opin-
ion upon the question of when and how sickness would terminate, or
whether a state of pain would be temporary or permanent.
nexpert opinion might be relied on to take the step from observed
facts to a present state or condition, but to pass upon these same
25 Statement and part of opinion omitted.
Sec. 1) BY ORDINARY WITNESSES 775
facts, the present state and condition included, to a probable future
state and condition, might be within the competency of expert opin-
ion only. We think this is so, in such a case as the present more es-
pecially, where a part of the facts are not objective, but wholly sub-
jective, consisting of the feelings and sensations of the witness him-
self, and being accessible to no other witness. How could such tes-
timony be answered? How could the opinion of this nonexpert be met
by a conflicting opinion of another witness of his own class? No other
witness could possibly know what his sufferings are or have been, so
as to make them a basis of belief or nonbelief as to their permanent
character, or as to whether they would be only temporary. The Code
surely does not intend that internal facts — facts of mere individual con-
. sciousness — shall be used as a basis of the opinion which it contem-
plates as being admissible in evidence, where the question is one of
opinion. Both for this reason, and because the question on which the
witness in this case was permitted to give his opinion was a scientific
question, we think the evidence should have been excluded. * * *
Judgment reversed. 20
TURNER v. AMERICAN SECURITY & TRUST CO.
(Supreme Court of the United States, 1909. 213 U. S. 257, 29 Sup. Ct. 420,
53 L. Ed. 788.)
Mr. Justice Moody 2T delivered the opinion of the court:
In this case we are asked to review, on appeal and writ of error, a
judgment of the court of appeals of the District of Columbia, affirm-
ing a decree of the supreme court of the District, sitting as a probate
court, which admitted to probate certain paper writings purporting to
be the will and codicils thereto of Henry E. Woodbury. The decree
was based upon the findings of a jury upon two issues submitted to it,
namely :
"(1) At the time of the execution of the said several paper writings
propounded for probate as the last will and testament of Henry E.
Woodbury, deceased, was the said Henry E. Woodbury of sound and
disposing mind and capable of making a valid deed or contract ?
"(2) Was execution of said paper writings procured by the fraud
or undue influence of Sallie Woodbury, Mena Stevens, or either of
them, or any other person or persons?"
The jury found that the testator was of sound mind and that he was
not unduly influenced. The questions brought here arose upon the
trial of those issues and are stated in the bill of exceptions duly al-
lowed. * * *
2 6 For the use of lay opinion as to the cause of death, see Krapp v. Metro-
politan Life Ins. Co., 14:: Mich. 3G9, 106 N. W. 1107, 11-4 Am. St. Rep. 653
(190G).
27 Part of opinion omitted.
77b" OPINIONS A£D CONCLUSIONS (Ch. 4
The first eleven assignments of error relate to the admission or ex-
clusion by the trial court of the testimony of lay witnesses as to their
opinion for or against the mental capacity of the testator. In the
view we take of these assignments of error they may be considered
together, and without any statement as to the testimony of the several
witnesses.
The rule governing the admission of testimony of this character
which has been prescribed by this court for the courts of the United
States is easy of statement and administration. Where the issue is
whether a person is of sound or unsound mind, a lay witness who has
had an adequate opportunity to observe the speech and other conduct
of that person may, in addition to relating the significant instances of
speech and conduct, testify to the opinion on the mental capacity ■
formed at the time from such observation. Charter Oak L. Ins. Co.
v. Rodel, 95 U. S. 232, 24 L. Ed. 433 ; Connecticut Mut. L. Ins. Co. v.
Lathrop, 111 U. S. 612, 28 L. Ed. 536, 4 Sup. Ct 533; Queenan v.
Oklahoma, 190 U. S. 548, 47 L. Ed. 1175, 23 Sup. Ct. 762.
In no other way than this can the full knowledge of an unprofes-
sional witness with regard to the issue be placed before the jury, be-
cause ordinarily it is impossible for such a witness to give an adequate
description of all the appearances which to him have indicated sanity
or insanity. Such testimony has been well described as a compendi-
ous mode of ascertaining the result of the actual observations 2S of
witnesses. Ordinarily, and perhaps necessarily, the witness, in testi-
fying to his opportunities for observation and his actual observation,
relates more or less fully the instances of his conversation or dealings
with the person whose mental capacity is under consideration, and it
is, of course, competent, either upon direct or cross-examination, to
elicit those instances in detail.
The order of the evidence must be left to the discretion of the trial
judge ; but, when sufficient appears to convince the trial judge that
the witness has had an opportunity for adequate 29 observation of the
B8 Mr. Baron Park in Wright v. Tatham, 5 CI. & P. 670, loc. cit. 735 (1838):
"And though the opinion of a witness upon oath as to that fact [sanity]
mi-lit be aski'd. it would he only a compendious mode of ascertaining the
result of the actual observation of the witness, from acts done, as to the
habits and demeanor of the deceased."
89 Sherwood, J., in State v. Soper, 148 Mo. 217, 49 S. W. 1007 (1S00): "It
is urged on behalf of defendant that in permitting witnesses Maude Hewitt
and others to give their opinions respecting the sanity of defendant without
iiinu' Hie facts upon which they based their opinions, the trial court erred.
Ordinarily, a lay witness is required, when giving an opinion that such a per-
son Is Of unsound mind, to give the fads on which he founds that opinion.
\,,i B0) ho i when he gives expression to an opinion that BUCh person is
• ,., cor in thai case the subject of the testimony would not give manifesta-
tions of certain eccentricities which usually mart the conducl of mind dis-
Ford v. State, 71 Ala, 386 (1882); 3 Rice, Ev. g 21.
it | held that, while the couri may properly exclude the opinion until
ufficieni basis of fad has been Btated, the admission of the opinion with-
out sufficient Bhowing Le nol nec< isarily prejudicial, because of the protection
Sec. 2) FROM EXPERT WITNESSES 777
person's mental capacity, and has actually observed it, then the judge
may permit him to testify to his opinion. This was the course pursued
by the trial judge in this case. With respect to each witness whose
testimony as to opinion was admitted or excluded, the judge exercised
his discretion upon the qualifying testimony.
We are asked to review that discretion, and to say that, in the case
of the eleven witnesses before us, it was improperly exercised. We
have no hesitation in declining to do this. No general rule can well
be framed which will govern all cases, and an attempt to do that would
multiply exceptions and new trials. The responsibility for the exer-
cise of the judicial power of determining whether a given witness has
the qualifications which will permit him, to the profit of the jury, to
state his opinion upon an issue of this kind, may best be left with the
judge presiding at the trial, who has a comprehensive view of the is-
sue and of all of the evidence, and the witness himself before his face.
This is not to say that, in a very clear case, an appellate court ought
not to review the discretion of the trial judge. For instance, if it
should appear that the witness had never spoken to the testator or
seen any significant act, but merely observed him driving from day to
day through the streets, and the opinion of such a witness as to san-
ity had been received, it would be the duty of the appellate court to
correct the error. On the other hand, if the witness for years had
been in constant communication with the testator, had frequently
conversed with him and observed his conduct from day to day, the
exclusion of the opinion of the witness ought to be corrected by the
appellate court. These are instances of a plain abuse of judicial dis-
cretion. * * *
Affirmed.
SECTION 2.— FROM EXPERT WITNESSES
ALSOP v. BOWTRELL.
(Court of King's Bench, 1620. 2 Croke. 541.)
Ejectment for lands in Munden, in the county of Hertford. 30
The question was, upon evidence to the jury, whether Edmund
Andrews, dying the twenty-third day of March, in the year 1610, and
Anne his wife being privatement enseint, but not delivered until 5th
January in the year 1611 (which was forty weeks and nine days, and
afforded by proper cross-examination. Chicago Union Traction Co. v. Law-
rence, 211 111. 373, 71 N. E. 1024 (1904). An opinion that testator was insane,
based on trivial circumstances, is not sufficient to fake the question to the
jury. Winn v. Grier, 217 Mo. 420, 117 S. W. 4S (1909).
so Part of case omitted.
778 OPINIONS AND CONCLUSIONS (Ch. 4
then delivered of a daughter named Elizabeth), shall be reputed the
father to the said Elizabeth, or that she were a bastard: for it was
proved that he fell sick upon the twenty-second day of March, and
died the day following of the plague; and that Edmund Andrews
(father of the said Edmund who was dead), in malice to his son's wife,
did much abuse her, and caused her to be dislodged from places where
she was harboured, and to lie in the cold streets; and that she was
so used for six weeks together before her travail ; and she being
brought into a woman's house who commiserated her case, having
warmth and sustenance, was delivered presently within twenty- four
hours of the said Elizabeth : and this being proved, and this mis-
usage, by five women of good credit, and two doctors of physic, viz.
Sir William Baddy and Doctor Mundford, and one Chamberlaine (who
was a physician, and in nature of a midwife), upon their oath, they
affirming that the child came in time convenient to be the daughter
of the party who died; and that the usual time for a woman to go
with child was nine months and ten days, viz. menses solares, that is
thirty days to the month, and not menses lunares, and that by reason
of the want of strength in the woman or the child, or by reason of ill
usage, she might be a longer time, viz. to the end of ten months, or
more ; and so both ancient and modern authors and experience proves.
The; Court held here, that it might well be as the physicians had
affirmed, that ten months may be said properly to be the time mulieri-
bus pariendo constitutum. Against this a record was produced in Trin-
ity Term, 18 Edw. I. Roll 13, in this court, that because a wife went
eleven months after the death of her husband, it was resolved, that
the issue was not legitimate, being born post ultimum tempus mulieribus
pariendo constitutum. But note, it is not there shewn what was ultimum
tempus mulieribus pariendo constitutum. And the physicians further
affirmed, that a perfect birth may be at seven months, according to the
strength of the mother, or of the child himself, which is as long before
the time of the proper birth ; and by the same reason it may be as
long deferred by accident, which is commonly occasioned by infirmi-
ties of the body, or passions of the mind : and so the Court delivered to
the jury, that the said Elizabeth, who was born forty weeks and more
after the death of the said Edmund Andrews, might well be the
daughter of the said Edmund. 31 * * *
•ii O'Brien, J- in Young v. Johnson, 123 N. Y. 220. 25 N. E. 363 (1S90): "We
think thai this ruling did not contravene the general rule of evidence that
witnesses must state tints and not opinions. The inquiry as to the conditions
under which pregnancy may occur is one peculiarly within the range of med-
Ical science and skill. The common knowledge and Judgment of mankind
may be greatly aided in an Inquiry of this ( haracter by the opinions of
learned and scientific men who have made the laws governing the complex
physical organism of the human race the subject of profound research and
ly."
Sec. 2) FROM EXPERT WITNESSES 77!)
CARTER v. BOEHM.
(Court of King's Bench, 17G6. 3 Burr. 1905.)
This was an assurance-cause, upon a policy underwritten by Mr.
Charles Boehm, of interest, or no interest : without benefit of salvage.
The insurance was made by the plaintiff, for the benefit of his brother,
Governor George Carter.
It was tried before Lord Mansfield at Guildhall : and a verdict was
found for the plaintiff by a special jury of merchants.
On Saturday the 19th of April last, Mr. Recorder, (Eyre,) on be-
half of the defendant, moved for a new trial. His objection was,
"that circumstances were not sufficiently disclosed."
A rule was made to shew cause: and copies of letters and deposi-
tions were ordered to be left with Lord Mansfield.
N. B. — Four other causes depended upon this.
The counsel for the plaintiff, viz. Mr. Morton, Mr. Dunning, and
Mr. Wallace, shewed cause on Thursday the first of this month. But
first,
Lord Mansfield reported the evidence — That it was an action on a
policy of insurance for one year; viz. from 16th of October 1759
to 16th of October, 1760, for the benefit of the Governor of Fort Marl-
borough, George Carter, against the loss of Fort Marlborough in the
island of Sumatra in the East Indies, by its being taken by a foreign
enemy. The event happened : the fort was taken, by Count D'Estaigne,
within the year. 32
Lord Mansfield now delivered the resolution of the court.
This is a motion for a new trial.
In support of it, the counsel for the defendant contend, "that some
circumstances in the knowledge of Governor Carter, not having been
mentioned at the time the policy was underwrote, amount to a con-
cealment, which ought, in law, to avoid the policy."
The counsel for the plaintiff insist, "that the not mentioning these
particulars, does not amount to a concealment, which ought in law, to
avoid the policy : either as a fraud ; or, as varying the contract." * * *
There are many matters, as to which the insured may be innocently
silent — he need not mention what the under-writer knows — Scientia
utrinque par pares contrahentes facit.
An under-writer cannot insist that the policy is void, because the
insured did not tell him what he actually knew ; what way soever
he came to the knowledge.
The insured need not mention what the under-writer ought to
know; what he takes upon himself the knowledge cf; or what he
waives being informed of.
s2 Statement condensed and part of opinion omitted.
780 OPINIONS AND CONCLUSIONS (Ch. 4
The under-writer needs not be told what lessens the risque agreed
and understood to be run by the express terms of the policy. He
needs not to be told general topics of speculation : as for instance — ■
The under-writer is bound to know every cause which may occasion
natural perils ; as, the difficulty of the voyage — the kind of seasons —
the probability of lightning, hurricanes, earthquakes, etc. He is bound
to know every cause which may occasion political perils ; from the
ruptures of States from war, and the various operations of it. He is
bound to know the probability of safety, from the continuance or re-
turn of peace ; from the imbecility of the enemy, through the weakness
of their counsels, or their want of strength, &c. * * *
But the defendant relied upon a letter, written to the East India
Company, bearing date the 16th of September, 1759s which was sent
to England by the "Pitt," Captain Wilson, who arrived in May, 1760,
together with the instructions for insuring; and also a letter bearing
date the 22d of September, 1759, sent to the plaintiff by the same
conveyance, and at the same time, (which letters his Lordship re-
peated.) 33
They relied too upon the cross-examination of the broker who
negotiated the policy, "that, in his opinion, these letters ought to have
been shewn, or the contents disclosed; and if they had, the policy
would not have been under-written."
The defendant's counsel contended at the trial, as they have done
upon this motion, "that the policy was void":
1st. Because the state and condition of the fort, mentioned in the
governor's letter to the East India Company, was not disclosed.
2dly. Because he did not disclose that the French, not being in a
condition to relieve their friends upon the coast, were more likely
to make an attack upon this settlement, rather than remain idle. * * *
It appears by the governor's letter dated 22d September, 1759, to the
plaintiff, "that he was principally apprehensive of a Dutch ^ war."
His words are— "And in case of a Dutch war, I would have it [the
insurance] done at any rate." He certainly had what he thought
good grounds for his apprehension. Count D'Estaigne being piloted
by the Dutch, delivering the fort to the Dutch, and sending the pris-
oners to Batavia, is a confirmation of those grounds. And probably,
the loss of the place was owing to the Dutch. The French could not
33 The former of them notifies to tho Bast India Company, that the French
had the preceding year, a design on foot, to attempt taking thai settlement hy
surprize; and that it was very probable that they might revive tint design.
i t ,.,,,,] Ml j represents the weakness or the fort: its being badly supplied
with stores, arms and ammunition: and the Impracticability of maintaining
it (in its then state) againsl an European enemy.
The latter letter (to his brother) owns that he is "now more airaid than
formerly, that the French should attack ami take the settlement; for, as
they can not muster a force to relieve their friends at the coast, they may,
rather than remain Idle, pay us a visit. It seems, that they had such an In-
tention, last year." Ami therefore he desires his brother to get an insurance
made upon bis stock there.
Sec. 2) FROM EXPERT WITNESSES 781
have got up the river without Dutch pilots: and it is plain, the whole
was concerted with them. And yet, at the time of underwriting the
policy, there was no intimation about the Dutch.
The reason why the counsel have not objected to his not disclosing
the grounds of this apprehension, is, because it must have arisen from
political speculation, and general intelligence; therefore, they agree,
it is not necessary to communicate such things to an underwriter.
Lastly — Great stress was laid upon the opinion of the broker.
But we all think, the jury ought not to pay the least regard to it.
It is mere opinion ; which is not evidence. It is opinion after an event.
It is opinion without the least foundation from any previous precedent
or usage. It is an opinion which, if rightly formed, could only be
drawn from the same premises from which the Court and jury were
to determine the cause : and therefore it is improper and irrelevant
in the mouth of a witness. * * *
Rule discharged.
FOLKES v. CHADD et al.
(Court of King's Bench, 1782. 3 Doug. 157.)
The trustees for the preservation of Wells harbor being of opinion,
that a bank which had been erected above twenty years, for the pur-
pose of preventing the sea overflowing some meadows which had de-
scended to the plaintiff, contributed to the choking and filling up of
that harbor, by stopping the back-water, threatened to cut it down, on
which the plaintiff applied to the Court of Chancery for an injunction.
The Court thereupon directed an action of trespass to be brought
against the defendants for cutting the bank, directing the trespass
to be admitted at the trial ; and that the only point in dispute should be,
whether the mischief which the bank did to the harbor was a justifi-
cation for the cutting, that thus the merits of the question might be
decided by a jury. The action was first tried at the last Lent As-
sizes for the county of Norfolk, when the evidence of a Mr. Milne,
an engineer, was received, as to what, in his opinion, was the cause
of the decay of the harbor, and to show that, in his judgment, the
bank was not the occasion of it. The plaintiff, on that trial, obtained
a verdict, and in Easter Term last a new trial was granted, on the
ground that the defendants were surprised by the doctrine and rea-
soning of Mr. Milne, and the parties were directed to print and de-
liver over to the opposite side the opinions and reasonings of the
engineers whom they meant to produce on the next trial, so that
both sides might be prepared to answer them. Accordingly they
went to trial at the last Summer Assizes, when the defendants offered
evidence to show, that other harbors on the same coast, similarly sit-
uated, where there were no embankments, had begun to fill up and
to be choked about the same time as Wells harbor. They also called
782 OPINIONS AND CONCLUSIONS (Ch. 4
Mr. Smeaton, an eminent engineer, to show that, in his opinion, the
bank was not the cause of the mischief, and that the cutting the bank
would not remove it. The receiving this evidence was objected to, as
the inquiring into the site of other harbors was introducing a multi-
plicity of facts which the parties were not prepared to meet. It was
also objected that the evidence of Air. Smeaton was a matter of opin-
ion, which could be no foundation for the verdict of the jury, which
was to be built entirely on facts, and not on opinions. Gould, J.,
who tried the cause, rejected the evidence. Partridge having ob-
tained a rule for a new trial, on the ground that the Judge had im-
properly rejected the evidence.
Lord Mansfield delivered the opinion of the Court. — This case
comes before the Court under the same circumstances as if it were
an indictment for the continuance of a nuisance, and it is a question,
therefore, whether the demolition of the bank would contribute to
restore the harbor. The Court will not compel the removal of a nui-
sance where it does not appear to be a prejudice, but will set a small
fine. Xor would the Court of Chancery, in this case, compel the
pulling down of a bank for a damage which might be compensated
by a shilling.
The facts in this case are not disputed. In 1758 the bank was
erected, and soon after the harbor went into decay. The question is,
to what has this decay been owing? The defendant says, to this bank.
Why? Because it prevents the back-water. That is a matter of
opinion: — the whole case is a question of opinion, from facts agreed
upon. Nobody can swear that it was the cause ; nobody thought that
it would produce this mischief when the bank was erected. The com-
missioners themselves look on for above twenty years, until a prop-
erty has been acquired which would be good by the statute of lim-
itations. It is a matter of judgment, what has hurt the harbor. The
plaintiff says that the bank was not the occasion of it. On the first
trial, the evidence of Mr. Milne, who has constructed harbors, and
observed the effect of different causes operating upon them, was re-
ceived ; and it never entered into the head of any man at the bar
that it was improper ; nor did the Chief Baron, who tried the cause,
think so. On the motion for the new trial, the receiving Mr. Milne's
evidence was not objected to as improper ; but it was moved for on
the ground of that evidence being a surprise; and the ground was
material, for, in matters of science, the reasonings of men of science
can only be answered by men of science. The Court considering the
evidence as proper, directed the opinions to be printed, and to be
exchanged. Under the persuasion of this being right, the parties go
down to trial again, and Mr. Smeaton is called. A confusion now
arises from a misapplication of terms. It is objected that Mr. Smea-
ing to speak, not as to facts, 34 but as to opinion. That opin-
3enator Vetplanck, in Mayor, etc., of City Of New Yerh v. Pentz,24 Wend,
(X. y.) 66 0): "* * * opinion is admitted when a jury is tncompe*
Sec. 2) FROM EXPERT WITNESSES 783
ion, however, is deduced from facts which are not disputed — the sit-
uation of hanks, the course of tides and of winds, and the shifting of
sands. His opinion, deduced from all these facts, is, that, mathe-
matically speaking, the bank may contribute to the mischief, but not
sensibly. Mr. Smeaton understands the construction of harbors, the
causes of their destruction, and how remedied. In matters of sci-
ence no other witnesses can be called. An instance frequently occurs
in actions for unskilfully navigating ships. The question then depends
on the evidence of those who understand such matters ; and when
such questions come before me, I always send for some of the brethren
of the Trinity House. I cannot believe that where the question is,
whether a defect arises from a natural or an artificial cause, the
opinions of men of science are not to be received. Handwriting is
proved every day by opinion ; and for false evidence on such ques-
tions a man may be indicted for perjury. Many nice questions may
arise as to forgery, and as to the impressions of seals ; whether the
impression was made from the seal itself, or from an impression in
wax. In such cases I cannot say that the opinion of seal-makers is
not to be taken. I have myself received the opinion of Mr. Smeaton
respecting mills, as a matter of science. The cause of the decay of
the harbor is also a matter of science, and still more so, whether the
removal of the bank can be beneficial. Of this, such men as Mr.
Smeaton alone can judge. Therefore we are of opinion that his
judgment, formed on facts, was very proper evidence. As to the
evidence respecting the situation of other harbors on the same coast,
we think that if there were no embankments it was admissible in
illustration of Mr. Smeaton's opinion ; but as to harbors in which there
were embankments, we think it was improper, since litem lite resolvit.
Rule absolute.
tent to infer without the aid of greater skill than their own, as to the prob-
able existence of the facts to be ascertained, or the likelihood of their occur-
ring from the facts actually proved before them. Indeed it would be more
logically accurate to say that mere opinion, even of men, professional or ex-
pert, is not admissible as such: but that facts having been proved, men
skilled in such matters may be admitted to prove the existence of other more
general facts or laws of nature, or the course of business, as the case may be,
so as to enable the jury to forin an inference for themselves. Thus the ex-
istence of certain appearances in the dead body having been proved, the
chemist testifies that such appearances invariably or generally indicate the
operation of some powerful chemical agent. His scientific opinion is in fact
his testimony to a law of nature. All these are testimonies to general facts
which the jury can ascertain in no other way, and which when proved afford
them the means of drawing their own conclusions from the whole mass of
testimony taken together."
784 OPINIONS AND CONCLUSIONS (Ch. 4
EASTERN TRANSPORTATION LINE v. HOPE.
(Supreme Court of the United States, 1S77. 95 U. S. 297, 24 L. Ed. 477.)
Mr. Justice Hunt 35 delivered the opinion of the court.
Hope, the plaintiff in the Circuit Court, sought to recover damages
for the loss of his barge, which the defendants undertook to tow from
Jersey City to New Haven, through Long Island Sound.
The barge was lost before reaching her destination ; and the jury
to which the case was submitted found a verdict for the plaintiff for
$2,125.30 damages. This was based upon the theory of the negli-
gence of the defendants in the performance of their duty.
With the general question of negligence we have nothing to do.
The finding of the jury is conclusive upon that subject. It is only
the specific allegations of error in the rulings or charges of the judge
at the trial that we are called upon to consider.
These allegations are as follows: It is said that the court erred,
first, in overruling the objection of defendant's counsel to the follow-
ing question, asked of Patrick McCarty, a witness, by the counsel
for the plaintiff: "With your experience, would it be safe or prudent
for a tug-boat on Chesapeake Bay, or any other wide water, to tug
rhree boats abreast, with a high wind? "
The witness had testified that for many years he had been the
captain of a tug-boat, and was familiar with the making up of tows ;
that he was a pilot, and had towed vessels on Long Island Sound,
although he was not familiar with the Sound, but that he was familiar
with the waters of the Chesapeake Bay.
The witness was an expert, and was called and testified as such.
His knowledge and experience fairly entitled him to that position.
It is permitted to ask questions of a witness of this class which can-
not be put to ordinary witnesses. It is not an objection, as is as-
sumed, that he was asked a question involving the point to be de-
■ ided by the jury. As an expert, he could properly aid the jury by
such evidence, although it would not be competent to be given by an
ordinary witness. It is upon subjects on which the jury are not as
well able to judge for themselves as is the witness that an expert as
such is expected to testify. Evidence of this character is often given
upon subjects requiring medical knowledge and science, but it is by
no means limited to that class of cases. It is competent upon the
question of the value of land, Clark v. Baird, 9 N. Y. 183; Bearss
v. Copely, 10 N. Y. 93; or as to the value of a particular breed of
horses, Harris v. Panama Railroad Co., 36 N. Y. Super. Ct. 373; or
upon the value of the professional services of a lawyer, Jackson v.
ork Central Railroad Co., 2 Thomp. & C. (N. Y.) (.53: or on
the question of negligence in moving a vessel, Moore v. \Yester\elt,
ei Statement and part of opinion omitted.
Sec. 2) FliOM EXPERT WITNESSES 785
22 N. Y. Super. Ct. 558; or on the necessity of a jettison, Price v.
Hartshorn, 44 N. Y. 94, 4 Am. Rep. 645. In Walsh v. Washington
Marine Insurance Co., 32 N. Y. 427, it was decided that the testi-
mony of experienced navigators on questions involving nautical skill
was admissible. The witness in that case was asked to what cause
the loss of the vessel was attributable, which was the point to be
decided by the jury. The court sustained the admission of the evi-
dence, using this language :
"We entertain no doubt that those who are accustomed to the re-
sponsibility of command and whose lives are spent on the ocean, are
qualified as experts to prove the practical effect of cross-seas and heavy
swells, shifting winds and sudden squalls."
The books give a great variety of cases in which evidence of this
character is admissible, and we have no doubt of the competency of
the evidence to which this objection is made. * * *
Affirmed. 38
SPOKANE & I. E. R. CO. v. UNITED STATES.
(Supreme Court of the United States. 1916. 241 U. S. 344, 36 Sup. Ct. 668.
60 L. Ed. 1037.)
Mr. Chief Justice White 37 delivered the opinion of the court :
The United States brought this suit against the railroad company
to recover penalties for fifteen alleged violations of the safety appliance
act. The violations consisted in hauling in interstate commerce on
October 23, 1911, twelve cars which were not provided with hand holds
or grab irons at the ends, as required by the act, and three cars which
were not equipped with automatic couplers. * * *
The fifteen cars here in question were passenger cars, and on the
day named were used in passenger trains which were run from the sta-
tion in Spokane to the city limits, and thence over the company's right
of way to Cceur d'Alene. Twelve of them (those which it was charg-
ed were not equipped at the ends with grab irons or hand holds) were
cars regularly used on the interurban lines, and were rounded at the
ends and equipped with radial couplers to enable the trains to make
sharp turns. As the swinging of these couplers from one side to the
other across the ends of the cars would break off grab irons of the type
ordinarily used on the ends of cars, they were not used. It was claim-
ed, however, that the requirements of the safety appliance act with re-
spect to hand holds or grab irons were in substance complied with by
a different, and what was asserted to be an equivalent, appliance ; that
so And so in Texas & P. R. Co. v. Watson, 190 U. S. 2S7, 23 Sup. Ct. 6S1, 47
L. Ed. 1057 (1903), operation of a locomotive.
37 Part of opinion omitted.
Hint.Ev— 50
786 OPINIONS AND CONCLUSIONS (Cll. 4
is, openings in the top of the buffer or sill extending across the ends
of the cars, just above the couplers. To support this claim the com-
pany offered testimony of experienced railroad men to the effect "that
the hand holds or grab irons in the buffers or sills of such cars were
sufficient to protect men who might be required to go between the cars
in coupling or otherwise handling them, that they were sufficient to
accomplish purposes intended to be accomplished by the provisions
of the safety appliance act requiring hand holds or grab irons to be
placed upon the ends of cars used in interstate commerce, and that
they were better than those commonly used upon cars engaged in in-
terstate commerce." The United States objected to the introduction of
the testimony, and it was excluded on the ground "that it was not a
question for expert testimony, but was a matter of common knowl-
edge." During the trial (at whose request it does not appear) the jury
were taken to inspect the openings in some of the cars. * * *
It is contended that error was committed in rejecting the testimony
of experts offered by the railroad company as to the protection afforded
to employees by the openings in the buffers at the ends of the twelve
cars. Without stopping to point out the inappositeness of the many
authorities cited in support of the contention, we think the court was
clearly right in holding that the question was not one for experts, and
that the jury, after hearing the testimony and inspecting the openings,
were competent to determine the issue, particularly in view of the full
and clear instruction given on the subject, concerning which no com-
plaint is made.
Affirmed. 38
Mr. Justice McReynolds took no part in the consideration and
decision of this case.
KEMPSEY v. McGINNISS.
(Supreme Court of Michigan, 1S70. 21 Mich. 123.)
The questions for review in this court arise upon the rulings of the
circuit judge on the admission and rejection of evidence as to the tes-
tamentary capacity of the testator.
Dr. William Mottram was called by the appellant and contestant,
and after testifying to facts within his personal observation, as to the
condition of the testator, stated that he heard Dr. Abbott testify, and
recollected the description he gave of Patterson, and that he heard
]•'.< kard testify, except a part of the cross-examination. He was then
asked:
Question. "Assuming the testimony of the witness as true in refer-
ence to the condition of Patterson during the days they mentioned,
b* Sec good exposition to the same effecl In Hamann v. Milwaukee Bridge
Co., 127 wis. 550, 106 N. W. 1081, 7 Ann. Cas. 458 (1906), excluding opinion
thai it was dangerous to unload heavy machinery iu a certain way.
Sec. 2) FROM EXrERT WITNESSES 787
what, in your opinion, was his capacity to make a will, or as to his be-
ing of sound and disposing mind ?"
This question was objected to by the appellees as incompetent and
irrelevant. The court sustained the objection. To which ruling and
decision the counsel for appellant duly excepted.
Question. "Assuming the testimony of Eckard in regard to the con-
dition of Patterson during the latter part of Thursday and Thursday
night, and Friday and Friday night, including his conversation and
what he did, to be true ; and assuming the testimony of Dr. Abbott in
regard to his condition and symptoms from Friday morning to the time
you went there, to be true, including your own observation on Satur-
day, what is your opinion as to Patterson being of sound disposing
mind and memory on Friday morning, so as to be able to transact
business continuously and understandingly from nine till eleven
o'clock?"
This question was objected to by the counsel for appellees on the
ground of irrelevancy and incompetency, and it was argued that the
answer to the question would take the question at issue from the jury,
and that an expert cannot be allowed to give an opinion upon facts
that were not under his own observation. The court sustained the
objection. 39
Christiancy, J. * * * No controversy arises upon the ques-
tions touching mental capacity put to any of the witnesses testifying
from their personal observation alone. But the contestants offered in
evidence the opinions of several professional witnesses who had not
seen the testator during his illness ; and upon the proper mode of con-
ducting such an examination some of the main questions in the case
arise.
We consider it too well settled to require the citation of authorities,
that, upon questions of this kind, the opinions of men skilled in that
particular science, in other words, physicians, are admissible in evi-
dence, though not founded upon their own personal observation of the
facts of the particular case. But, if the question had not already
been closed by authority, I should be much inclined to doubt the pro-
priety of receiving the opinions of merely medical witnesses, under
such circumstances, to anything more than physical facts, such as the
physical effects of the disease ; as I think it may well be doubted wheth-
er the skill of ordinary physicians in metaphysics, or their judgment
upon merely mental manifestations, has been shown by experience to
be of any greater value than that of intelligent men in other depart-
ments of life. The question, however, seems to be settled in their
favor upon authority.
But in the case of such professional witnesses, as well as in that of
unprofessional witnesses — who are allowed to give their opinions only
from personal observation — the facts upon which the opinion is found-
as Statement condensed and part of opinion omitted.
788 onxioxs and conclusions (Ch. 4
ed must be stated, and the jury must be left to determine whether the
facts stated, as well as the opinions based upon them, are true or false.
And it is obvious that when such opinions are given without personal
knowledge or observation, such opinions must be based either upon
facts observed and stated by other witnesses who knew them, or
upon a state of facts assumed for the purpose as a hypothetical case,
which the jury may find from the evidence.
But as the jury are to pass upon the credibility of all witnesses and
the weight of the evidence, and to determine all matters of fact in-
volved in the case, no witness can have the right to usurp the power of
the jury, or to determine any of these questions for them, nor even to
give an opinion upon the weight or credibility of any of the testimony.
No question, therefore, can be put to the witness which calls upon or
allows him to decide upon the truth or falsehood of any evidence in
the case. If, therefore, there be any conflict between the witnesses as
to the facts upon which a professional opinion is sought, it is mani-
fest the professional witness cannot, though he has heard the testi-
mony, be asked to base his opinion upon that testimony, upon the hy-
pothesis of its truth ; because, to reach his conclusion, he must neces-
sarily pass upon the credibility of the witnesses and the weight of the
evidence. In the case of any such conflict, therefore, the only proper
mode of interrogating the professional witness, is by stating and enu-
merating in the question itself, the facts to be assumed. And when his
opinion is asked upon a case (such as the physical or mental effects of
a disease upon a certain person, under certain circumstances and* ex-
hibiting certain symptoms), as stated by other witnesses, when there is
no conflict, he is to assume, without undertaking to decide, the truth
of their statements, and to base his opinion only upon the facts thus
assumed, leaving the jury to determine whether such assumed facts
are true or false.
Now, it is manifest that this is but giving an opinion upon a hy-
pothetical case, as much as if the facts testified to by the other wit-
nesses had been expressly and hypothetically assumed and enumerated
in the question itself. And it would seem, from the nature of the case,
to be impracticable to frame any proper question for eliciting the opin-
ion, which is not in the nature of a hypothetical case, being based upon
an assumed state of facts which the jury may, or may not, find to be
true. And as a collection or state of facts assumed, whether few or
many, constitute in the aggregate, the basis on which the opinion is
asked; if it does not appear that the opinion would be the same, with
any of those facts omitted, it necessarily follows that, if the jury
should negative or fail to find any one of the assumed facts, the opinion
• pressed cannot be treated as evidence, but must be rejected by the
jury.
From these considerations it necessarily follows that the jury should
know just what facts arc assumed, and enter into the collection or
Mate of farts upon which the witnesses' opinions are based. Otherwise
Sec. 2) FROM EXPERT WITNESSES 789
they cannot know whether they ought to treat the opinions as evidence
at all; since they can form no opinion whether such assumed facts,
or the opinions based upon them, are true or false. 40
If one or more witnesses have stated, in the presence and hearing
of the professional witness, the facts observed (such as the symptoms
of the person in question, and his various physical and mental mani-
festations), and the witness is asked his opinion upon the hypothesis
that all the facts stated by the witness or witnesses named are true,
the jury, having heard all the evidence alluded to, know what facts
are assumed by the witness in giving his opinion. But if the witness
be asked his opinion of a case, assuming the testimony of certain speci-
fied witnesses to be true, and it appears that he did not hear the whole
of their testimony, and it does not definitely appear what facts stated
by them he has heard, and what he did not hear, the jury cannot
know upon what state of facts he forms his opinion, nor whether the
facts he has assumed are true, nor whether his opinion would have
been the same if he had heard the whole ; and his opinion cannot, there-
fore, safely be received as evidence.
This disposes of two questions put to Dr. Mottram, the rejection of
which w r as excepted to by the contestant; both of which were based
upon the assumed truth of the testimony of Eckard and Dr. Abbott.
It appears from the statement of Dr. Mottram himself that he did not
hear the whole of Eckard's testimony, and it does not appear what par-
ticular facts stated by him he did, and what he did not hear.
It is also necessary, in questions of this kind, to bear in mind the
respective provinces of the court, the jury and the witnesses. The
court are to decide all questions of law, the jury those of fact. Wit-
nesses are sworn, not to enlighten the court upon matters of law, but
the jury (and to some extent the court) upon matters of fact. And, in
this particular class of questions, the professional witness is allowed
to state his opinions as inferences of fact, notwithstanding that, in do-
ing this, he gives his opinion upon the existence, or non-existence, of
the same resultant fact or facts which the jury are to find by their
verdict. (Though some authorities require the questions to be so fram-
ed as to avoid even this result. See, for instance, Rex v. Wright, R.
and R. Cr. Cas., 456; Sills v. Brown, 9 C. and P., 601; Farar v.
Warfield, 8 Mart., N. S. (La.) 695, 696; Jameson v. Drinkald. 12
Moore, 148; Earl of Farrar's Case, 19 Howell, 943; Regina v. Fran-
cis, 4 Cox, C. C. 57. And see 4 Cox, 451.
But the jury are bound to take the law from the court, and to find
40 And so in Com. v. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dee. 458 (1844);
Woodbury v. Obear, 7 Gray (Mass.) 467 (1S56).
It is doubtful wbother it is ever proper to base a question on the assumed
truth of a large amount of testimony, without reciting the substance of it.
People v. McElvaine, 121 N. Y. 250, 24 N. E. 465, 18 Am. St. Rep. S20 (1S00).
The state of facts assumed must obviously be such as the jury might find to
be true, though the court may relax the rule on the cross-examination of an
adverse expert. Railway v. irishman, 169 111. 106, 48 N. E. 447 (1S97).
790 OPINIONS AND CONCLUSIONS (Ch. 4
the facts from the evidence. By a special verdict, which they may al-
ways render, they merely find the facts, and leave the court to apply
the law ; by a general verdict, which they are not bound to find, they
merely apply the law given them by the court to the facts found
by themselves — giving, in this way, the combined result of law and fact.
To what extent and in what manner the mind of the testator was
affected by the disease, or what was his mental condition, was a ques-
tion of fact, upon which it was competent for the professional witness-
es to express their opinions. But what degree of mental capacity is
necessary to enable a testator to make a valid will, to what extent and
with what degree of perfection he must understand the will and the
persons and property affected by it, or to what extent his mind must be
impaired to render him incapable, is a question of law exclusively for
the court, and with which the witnesses have nothing to do. And it
is a question of law of no little difficulty, which calls for the highest
skill of competent jurists, and upon which the ablest courts are not
entirely agreed. * * *
It may be urged in reply to this, that the confusion arising from al-
lowing witnesses to answer questions involving their opinion of the
legal capacity of a party to make a will, may be cleared up by a cross-
examination, ascertaining what, in his opinion, constitutes such ca-
pacity, and that any error in this respect may be corrected by the court
in his charge, or otherwise. But it seems to be much wiser, wherever
it is practicable, to exclude the improper question, and avoid the con-
fusion altogether, than to admit it first, and then undertake to get
rid of its effects, an experiment which is never wholly successful.
I am aware there are many cases in which, upon similar questions,
interrogatories have been allowed to be put to witnesses for their
opinion, involving, as well their opinion upon the question of law
(legal capacity), as upon the question of fact (what the capacity was).
In most of them, however, the point I am discussing was not directly
raised. And, upon principle, I can see no ground upon which such a
course can be justified, when the nature of the case does not render it
necessary, and it can, as in the present case, be just as well avoid-
ed. * * *
Reversed (on other grounds).
PEOPLE v. YOUNGS.
(Court of Appeals of New York, 1S9G. 151 N. Y. 210, 45 N. E. 400.)
O'Brien, J.* 1 The defendant was convicted of murder in the first
degree, and appeals to this court for a new trial. There is no dispute
whatever with respect to the fact that on the 14th day of December,
1895, at the place charged in the indictment, the defendant shot and
■•i Pari of opinion omitted.
Sec. 2) FROM EXPERT WITNESSES 791
killed his wife with a revolver, having 'deliberately fired two shots
at her, both of which took effect, and one of them inflicting a mortal
wound producing death. The facts and circumstances attending the
commission of the act are fully disclosed by the record, but it is not
necessary to repeat them here at much length. The defense was in-
sanity, or at least the existence, at the time of the commission of the
act by the defendant, of such mental disturbance or defect of reason
as to render him irresponsible for his act. * * *
It appears by the record that certain medical experts were called as
witnesses by the prosecution, who testified that they had made a per-
sonal examination of the defendant with reference to his sanity, and
were then asked whether, in their opinion, he was sane at the time
of such examination. These questions were objected to by the defense
as incompetent, but the objection was overruled, and there was an ex-
ception. It is now urged that these experts should not have been per-
mitted to express an opinion without first stating the facts upon which
such opinion was based. The testimony of experts is an exception to
the general rule which requires that the witness must state facts and
not express opinions. In such cases the opinion of the witness may be
based upon facts so exclusively withm the domain of scientific or pro-
fessional knowledge that their significance or force cannot be per-
ceived by the jury, and it is because the facts are of such a character
that they cannot be weighed or understood by the jury that the witness
is permitted to give an opinion as to what they do or do not indicate.
In such cases it is the opinion of the witness that is supposed to possess
peculiar value for the information of the jury.
Of course, all the facts or symptoms upon which the opinion is
based may be drawn out also either upon the direct or cross-examina-
tions. It is undoubtedly the better practice to require the witness to
state the circumstances of his examination, and the facts, symptoms, or
indications upon which his conclusion is based, before giving the opin-
ion to the jury. But we think that it is not legal error to permit a
medical expert, who has made a personal examination of a patient for
the purpose of determining his mental condition, to give his opinion as
to that condition at the time of the examination, without, in the first
instance, disclosing the particular facts upon which the opinion is bas-
ed. The party calling the witness may undoubtedly prove the facts
upon which the opinion is based, and as we have already observed,
that is doubtless the safer practice. It may also be true that the court,
in the exercise of a sound discretion, may require the witness to state
the facts before expressing the opinion, and in all cases the opposite
party has the right to elicit the facts upqn cross-examination. But the
precipe question here is whether the court committed an error in per-
mitting the witness to give the opinion before the facts upon which it
was founded were all disclosed, and we think that, when it is shown
that a medical expert has made the proper professional examination
of the patient in order to ascertain the existence of some physical or
792 OPINIONS AND CONCLUSIONS (Ch. 4
mental disease, he is then qualified to express an opinion on the sub-
ject, though he may not yet have stated the scientific facts or external
.-vmptoms upon which it is based. People v. Kemmler, 119 N. Y. 580,
24 X. E. 9; People v. Taylor, 13S N. Y. 398, 34 N. E. 275; People v.
Hoch, 150 N. Y. 291, 44 N. E. 976. * * *
Affirmed. 42
KIMBROUGH v. CHICAGO CITY RY. CO.
(Supreme Court of Illinois, 1916. 272 111. 71, 111 N. E. 499.)
Duncan, J. 43 An action on the case for personal injuries alleged:
to have been sustained September 5, 1907, was brought by Marie A.
Fellows-Kimbrough against the Chicago City Railway Company,
plaintiff in error, in the superior court of Cook county. On the first
trial, in February, 1909, defendant in error claimed that a malignant
cancer was developing in her breast as a result of her injuries, and
the jury awarded $7,000 as damages. The trial judge required a re-
mittitur of $3,000 and entered judgment for $4,000. That judgment
was reversed by the Appellate Court for the First District because of
the improper conduct of one of the attorneys for defendant in error.
On the second trial, in March, 1913, her physicians testified, in sub-
stance, that the lump in her breast, which they had in the first trial
testified was in their opinion a cancer, was a fatty tumor about the
size of a hen's e^, the removal of which, as shown by the evidence,
was a simple matter that would not be followed with serious conse-
quences. The only other ailment claimed by defendant in error on
the second trial to be still enduring as a result of her injuries was a
traumatic neurasthenia, which plaintiff in error insisted was the. re-
suit of a series of troubles that she experienced as the result of three
marriages and two divorces and two long spells of sickness and con-
finement in a hospital, during which time she underwent two severe
surgical operations. On the second trial the jury returned a verdict
for $3,750 damages, upon which the court entered judgment. The
Appellate Court affirmed that judgment, and a writ of certiorari was
granted by this court for the purpose of reviewing the judgment of
the Appellate Court. * * *
It is first argued by plaintiff in error that the trial court erred in
permitting purely speculative evidence as to the future consequences
of the tumor in the breast of defendant in error to be considered by
the jury. The particular evidence in question appears in the
* * * redirect examination of defendant in error's witness, Dr.
Mowcry, which appears in the record as follows: * * *
*2 And BO in People v. Faber, 199 N. Y. 256, 92 N. E. 674, 20 Ann. Cas. 879
(1910).
Bui see Oliver v. North End St. Ky. Co., 170 Mass. 222, 40 N. E. 117 (1898)
Pa it of opinion omitted.
Sec. 2) FROM EXPERT WITNESSES 793
Q. "Doctor, you say, as I understand you, that the seed of cancer,
or the conditions that cause a cancer, may lie dormant for a number
of years before they develop into cancer. How long would that pe-
riod of dormancy be?" A. "The dormancy may extend over years.
A little lump may be in the breast, and lie there for years dormant,
and become cancer after a number of years."
The last question and answer were also objected to by plaintiff in
error as speculative evidence, and that it was not redirect examina-
tion, but the objections were overruled, and proper exceptions pre-
served. It is clear that the evidence thus elicited and objected to by
plaintiff in error is purely speculative evidence — that is, the conjec-
ture of the witness as to consequences that are mere possibilities — and
was therefore incompetent.
The witness admitted in his examination that defendant in error did
not have a cancer at that time and had not had one, and that he was
mistaken when- he testified on the former trial that the lump in ques-
tion was a cancer. The examination of Dr. Mowery by plaintiff in
error, as above shown, was for the purpose of getting him to admit
that he was so mistaken. His answer to the question of plaintiff in
error, and to which it objected, was not responsive to the question, as
insisted by defendant in error, and should have been excluded by the
court. Plaintiff in error was inquiring as to what would have been
the result if defendant in error had really had a cancer four years be-
fore, as the witness had testified, and the answer was, in substance,
that the tumor might lie dormant for a number of years and then
develop into a cancer. For the reason that the answer was not re-
sponsive the court also committed error in allowing the defendant in
error to repeat the objectionable evidence on redirect examination,
and the jury were thus permitted to consider the same in fixing the
amount of her damages. Mere surmise or conjecture cannot be re-
garded as proof of an existing fact or of a future condition that will
result. Expert witnesses can only testify or give their opinion as to
future consequences that are shown to be reasonably certain to fol-
low. Lauth v. Chicago Union Traction Co., 244 111. 244, 91 N. E.
431 ; Lyons v. Chica-o City Railway Co., 258 111. 75, 101 N. E. 211.
The court also erred in overruling plaintiff in error's objections to
the evidence of Dr. Adams in his examination in chief by defendant
in error's counsel, as shown by the following questions and answers,
to wit: O. "Doctor, referring to the supposititious or hypothetical
patient and taking into account the elements of the hypothesis, have
you an opinion as a medical man, and based upon reasonable certain-
ty, as to what was the cause of the neurasthenia and the tumor in the
hypothetical patient v " A. "Yes, sir." O. "What is your opinion
as to the connection between this disease and the tumor or growth in
the breast ?" A. "That the tumor resulted from the bruise — the in-
jury to the breast. The neurasthenia resulted from the shock of the
accident, and was kept alive by the breast condition."
794 OPINIONS AND CONCLUSIONS (Ch. 4
One of the objections of the plaintiff in error to the foregoing ques-
tions was that they were improper, as invading the province of the
jury and calling for an opinion on an ultimate fact. Where there is a
conflict in the evidence, as in this case, as to whether or not the party
suing was injured in the manner charged, it is not competent for wit-
nesses, even though testifying as experts, to give their opinions on the
very fact the jury is to determine. Whether or not the collision or
accident in this case caused traumatic neurasthenia in the defendant
in error, or caused the tumor in her breast, are ultimate facts upon
which the jury must make their findings. It is no more proper, le-
gally, for physicians to settle those questions for the jury by their di-
rect answers than it would be for a motorman of another street car
company to settle the question of negligence by testifying in broad
terms that the plaintiff in error was guilty of negligence because its
motorman failed to cut off the power by use of the canopy switch in
time to prevent the collision.
The rule in such cases is not different where hypothetical questions
are put to the expert witnesses. A physician may be asked whether
the facts stated in a hypothetical question are sufficient, from a medi-
cal or surgical point of view, to cause and bring about a certain con-
dition or malady, or he may be asked whether or not a given condi-
tion or malady ot a person may or could result from and be caused by
the facts stated in the hypothetical question; but he should not be
asked whether or not such facts did cause and bring about such con-
dition or maladv. Illinois Central Railroad Co. v. Smith, 208 111. 608,
70 N. E. 628 ; Keefe v. Armour & Co., 258 111. 28, 101 N. E. 252, Ann.
Cas. 1914B, 188; People v. Schultz, 260 111. 35, 102 N. E. 1045; Cas-
tanie v. United Railways Co., 249 Mo. 195, 155 S. W. 38, L. R. A.
1915A, 1056; Sever v. M. & St. Louis Railroad Co., 156 Iowa, 664,
137 N. W. 937, 44 L. R. A. (N. S.) 1200. In cases where there is no
dispute as to the manner and cause of the injury, and no dispute that
there was an injury sustained by reason of the acts of which com-
plaint is made, this court has held that a physician may then directly
testify that a later malady was or was not caused by the accident or
original injury, upon the same principle that he may testify that death
resulted from a certain wound. Schlauder v. Chicago & Southern
Traction Co., 253 111. 154, 97 N. E. 233; City of Chicago v. Didier,
227 111. 571,81 N. E. 698.
Dr. Olof Steffenson was permitted, over the same objections of
plaintiff in error, in answer to a similar hypothetical question by de-
fendant in error's counsel, to testify that the cause of the neuras-
thenia, or of the condition found in the hypothetical patient, was due
to the accident. **
«* Sec, also, Glasgow v. Metropolitan St. Ry. Co., 191 Mo. 347, 89 s. w. 916
(1906).
Sec. 2) FROM EXPERT WITNESSES 795
The errors committed by the court in the admission of evidence, as
aforesaid, must be regarded as very prejudicial to plaintiff in error.
There is no disease more feared by the human family than cancer.
The jury were allowed to consider in this case the testimony of Dr.
Mowery that the defendant in error might some time in the future
find that the tumor in her breast had developed into a fatal cancer.
How much effect or weight that testimony may have had with the
jury on the question of fixing the measure of her damages no one
can say. They were directed by the instructions of the court to con-
sider all the evidence bearing on the question of damages in fixing
the amount of damages. The physicians in the case settled the ques-
tion by their direct and positive testimony that the tumor and the
neurasthenia or nervousness of the defendant in error were caused
by the collision. The jury had nothing left to do but to proceed to
award large damages under this evidence. * * *
Judgment reversed.
CONNOR v. O'DONNELL.
(Supreme Judicial Court of Massachusetts, 1918. 230 Mass. 39, 119 N. E. 446.)
Crosby, J. 45 The plaintiff in the first action seeks to recover dam-
ages from the defendant, a physician, for alleged negligence in his
treatment and care of her after she had given birth to a child. She
will hereinafter be referred to as the plaintiff. The second action is
brought by the husband of the plaintiff in the first action to recover
consequential damages.
The plaintiff filed specifications of the unskillfulness and negligence
of the defendant, alleged in her declaration in substance as follows:
The first specification alleged that the defendant negligently directed
that the plaintiff, while suffering from convulsions following child-
birth, be restrained and held in bed by holding her by her wrists,
whereby her shoulders- became dislocated and fractured; the second
specification alleged that after the plaintiff's shoulders had been frac-
tured and dislocated, the defendant failed to discover her injuries
and negligently prescribed treatment which caused her great pain
and resulted in permanent disabilities. [The jury returned a verdict
for the plaintiffs in each case.]
The remaining exceptions relate to questions put to Dr. Jefferson, a
medical expert called by the plaintiff. He was asked on direct exam-
ination: "Now coming to the left shoulder, Doctor, from your ex-
amination of the plate and Mrs. Connor and the evidence in the case,
have you formed any opinion as to the cause of the present condi-
tion?"
The exception to the admission of this question must be sustained.
It is settled that an expert witness cannot be asked or allowed to ex-
45 Statement and part of opinion ODdtted.
796 OPINIONS AND CONCLUSIONS (Ch. 4
press an opinion founded in whole or in part on the evidence where,
as in the case at bar, it was conflicting. An important question at
the trial was whether the fracture and dislocation of the plaintiff's
shoulders was due to the convulsions alone or resulted from the con-
vulsions together with the physical restraint exercised upon her by
the defendant or under his direction.
It was said by this court in btuddard v. Winchester, 157 Mass. 567,
at page 575, 32 N. E. 948, at page 949: "The proper way to inter-
rogate an expert, to obtain his opinion on facts to be derived from
testimony, is to put questions on hypothetical statements of facts, or
to ask the witness to give opinions founded on possible views of the
evidence, stating in connection with the opinions the hypothetical
facts to which they relate, so as to make them intelligible. An ex-
pert witness cannot be asked to give an opinion founded on his un-
derstanding of the evidence, against the objection of the other party,
except in cases where the evidence is capable of but one interpreta-
tion. In other words, questions must be so framed that the witness
will not be called upon to give an answer involving his opinion on
disputed questions of fact which are not proper subjects for the tes-
timony of an expert, nor to intimate to the jury his opinion as to the
credibility of any of the witnesses." Hunt v. Lowell Gas Light Co.,
8 Allen, 169, 85 Am. Dec. 697; Chalmers v. Whitmore Mfg. Co., 164
Mass. 532, 42 N. E. 98; McCarthy v. Boston Duck Co., 165 Mass.
165, 42 N. E. 568; Rafferty v. Nawn, 182 Mass. 503, 507, 65 N. E.
830; Burnside v. Everett, 186 Mass. 4, 71 N. E. 82; Com. v. John-
son, 188 Mass. 382, 386, 74 N. E. 939; Wigmore on Evidence, § 681.
* * *
As the witness Jefferson was allowed to express an opinion founded
in part on "the evidence in the case" which was conflicting, the ex-
ception thereto must be sustained ; the others are overruled.
Exceptions sustained.
SECTION 3.— OPINION BASED ON EXAMINATION AND
COMPARISON OF WRITINGS
GOODTITLE dem. REVETT v. BRAHAM.
(Court of Kings Bench, 1702. 4 Term R. 407.)
This ejectment was tried at bar by a special jury from Suffolk,
and, by consent, some talesmen from Middlesex. The lessor of the
plaintiff claimed as the heir at law, the defendant as the devisee of
Mrs. Elizazbeth Braham, the person last seised. 40 * * *
«« Pari <if '-us.- omitted.
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 797
The plaintiff then stated his pedigree, which was admitted ; and
the defendant proved the will, which was impeached on various
grounds, but chiefly on those of forgery, and undue influence. There
were two parts of the will, to each of which were three signatures and
a seal; and with one of them was sealed up a paper, purporting to be
instructions for the will, in the hand-writing of the testatrix, and signed
and sealed by her ; at the bottom of which was a memorandum, that
the testatrix at the time of executing the will requested the attesting
witnesses to sign the paper for her, which she declared to be her
writing; and they had signed it accordingly. This memorandum was
in the hand of one Reilly, who was supposed by the plaintiff to be the
contriver of the will, and who was considerably benefited by it. The
plaintiff's case, as to the forgery, consisted of evidence that the tes-
tratrix was incapable of writing a paper of such length as these in-
structions, and hardly able to sign her name ; of declarations in her
life-time that she never would make any will ; and of some contradic-
tions by the attesting witnesses. The plaintiff then called two clerks
of the Post-office, who swore that they were used to inspect franks
and detect forgeries. They were then asked whether, from their
general knowledge of writing, the instructions were a natural or an
imitated hand ; this question was objected to, but allowed by the
Court ; and the clerks swore that the hand was imitated. They were
then asked if they could judge whether the instructions were written
by the person who wrote the memorandum : This question was also
objected to, as being a comparison of hands ; but allowed by the Court.
Lord Kenyon, C. J., mentioned a case where a decypherer had
given evidence of the meaning of letters without explaining the grounds
of his art, and where the prisoner was convicted and executed. And
Buller, J., said it was like the case of Wells Harbour, where persons
of skill were allowed to give evidence of opinion. The clerks then
swore that from their knowledge of the similarity of hands they were
sure that the instructions and memorandum were written by the same
person. They also swore that all the signatures to the will, and the
signature to a power of attorney to surrender copy-holds to the use
of the will executed afterwards, were imitated and not natural writ-
ing. On cross-examination they admitted that they had never detected
an imitation of the hand of a very old person, who wrote with dif-
ficulty, and might be supposed frequently to stop. That their prin-
cipal means of knowing was by seeing whether the letters were paint-
ed, that is, gone over a second time with the pen, which they ad-
mitted might happen to any person from a failure of ink. Other
signatures of the testatrix proved by unsuspected persons, were then
shewn to these witnesses ; one of these signatures was sworn to be
genuine by one of them, and by the other to be imitated.
Lord Kenyon, in summing up to the jury, said he should leave
the question of forgery on the evidence they had heard, without any
observations.
798 OPINIONS AND CONCLUSIONS (Ch. 4
Evidence was also given on the ground of influence. The jury
found for the plaintiff. 47
47 in Rex v. Cator, 4 Espinasse. 117 (Nisi Prius, 1802), Baron Hotham re-
ceived similar opinion that a writing was not natural, but rejected an opinion
based on comparison, saying:
" * * * Then comes the inspector of franks, from the Post-office; he has
these libels put into his hands. Now, I do not know how that gentleman
could speak to the hand- writing, unless he could say he had seen the party
write, or unless he had been in the habit of correspondence with him, except-
ing that he is called to speak as a man of science to an abstract question. In
that light he has been called, and his evidence has been admitted. He is
shown these papers ; and he is asked to look at them, and, without inquiring
who wrote them, or for what purpose. He is asked, 'From your knowledge of
hand-writing in general, do you believe that writing to be a natural or ficti-
tious hand?' His science, his knowledge, his habit, all entitle him to say, I
am confident it is a feigned hand. To that there is no objection; and so far
as that goes, I see no reason for rejecting that evidence.
"Then comes the next and important point. It is said to him, 'Now look
at this paper, and tell me whether the same hand wrote both?' Why, one
cannot help seeing, evidently, what must be the consequence: — I cannot con-
ceive there is anything in the idea of a comparison of hands, if this is not
to be considered as comparison of hands. The witness says, I never saw him
write in my life. Why then, I collect all my knowledge of his being the au-
thor of this, by comparing the same hand with that which other witnesses
have proved to be a natural hand: by looking at the two, he draws his con-
clusion. It seems to me, therefore, directly and 'completely a comparison of
hand. This question seems to have been solemnly decided ; but when I see
the same noble and learned Judge repenting of what he had suffered in the
former case, and expressly saying he could not receive such evidence ; and
observing, that though such evidence was received in Revett and Braham, he
had, in his summing up to the jury, laid no stress upon it: this being the
case, I cannot consider it so adjudged, but that I may exercise my own judg-
ment in rejecting it."
The latter observations appear to be based on a misunderstanding of cer-
tain rulings by Lord Kenyon in Pitt v. Carey, Peake Adl. Cases, 130 (1797),
'1 Peake, N. P. 130, where it was proposed to prove that the alleged signature
of the defendant was a forgery, by an expert witness who had no knowledge
of the genuine signature except from having seen several papers purporting
to have been written by him. Lord Kenyon rejected this as not coming with-
in the rule that the witness must have seen the person write, or at least have
become acquainted with his writing from correspondence. Garrow then asked
tin' witness whether; having been used to detect forgeries, he could say this
was a genuine handwriting, Lord Kenyon said he would not receive this, and
observed that though such evidence was received in Revett and Braham, he
had, in his charge to the jury, laid no stress upon it.
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS T'J'J
GURNEY et al. v. LANGLANDS.
(Court of King's Bench, 1822. 5 Barn. & Aid. 3.10.)
Feigned issue directed by the Court of King's Bench, to try whether
the supposed signature of Thomas Gurney the plaintiff, to a certain
warrant of attorney, dated 16th April, 1821, was forged. At the trial
before Wood, B., at the last assizes for Surrey, the plaintiff, in support
of the affirmative of the issue, tendered the evidence of Joseph Hume,
inspector of franks at the post-office, who stated, that he was unac-
quainted with the plaintiff's hand-writing, and was then asked the fol-
lowing question : "From your knowledge of hand-writing, do you be-
lieve the hand-writing in question to be a genuine signature, or an imi-
tation?" This question was objected to, and the objection allowed by
the learned Judge, who stated in his report the following reasons:
"When a witness has seen another write, or has, by receiving notes or
letters from him, become acquainted with his hand-writing, he has a
ground of forming a belief as to it. But where, as in this case, he
acknowledges that he had not any previous acquaintance whatever with
the hand-writing of the plaintiff, he could not, as I conceived, have any
foundation for his opinion or belief, whether the signature in question
was genuine or only an imitation ; for he had never seen or had any
knowledge of that of which it was supposed to be an imitation. There
is no general known standard by which hand-writing can upon inspec-
tion only be determined to be counterfeited, without some previous
knowledge of the genuine hand-writing, the hand-writings of men being
as various as their faces. Opinions of skilful engineers and mariners,
&c, may be given in evidence in matters depending upon skill, viz. : as
to what effect an embankment in a particular situation may have upon
a harbour, or whether a ship has been navigated skillfully. Because,
in such cases, the witness has a knowledge of the alleged cause, and
his skill enables him to judge and form a belief of the effect. I had
never known such loose general evidence admitted, or even offered, and
it struck me, that the admission of it would produce much mischief,
and greatly endanger written securities." The evidence on the part of
the defendant, of the subscribing witnesses to the warrant of attorney
and others, was so strong, that the jury declared themselves satisfied,
and found a verdict for the defendant. Knowlvs, in last Michaelmas
term, obtained a rule nisi for a new trial, on the ground that this evi-
dence was admissible, and had been rejected.
Abbott, C. J. I have long been of opinion, that evidence of this
description, whether in strictness of law receivable or not, ought, if
received, to have no great weight given to it. This was an issue di-
rected by the Court, in order to enable them to come to a satisfactory
conclusion upon a rule pending before them. The other evidence in
this case was of so cogent a description as to have produced a verdict
satisfactory to the Judge who tried the cause ; and I can pronounce my
800 OPINIONS AND CONCLUSIONS (Cll. 4
judgment much more to my own satisfaction upon a verdict so found,
than if this evidence had been admitted, and had produced a contrary
verdict. For I think it much too loose to be the foundation of a judicial
decision, either by judges or juries. The rule, therefore, for a new trial
must be discharged.
BaylEy, J., concurred.
Holroyd, J. I have great doubt whether this is legal evidence;
but I am perfectly clear that it is, if received, entitled to no weight; and
this being an issue directed to satisfy the Court, we shall best exercise
our discretion by refusing a new trial.
Best, J. There can be no doubt that this is not, in all probability,
the natural hand-writing of the party ; for it is clear, that if at the time
he wrote it he had the intention to dispute the deed, he would not sign
it in his usual mode. The evidence, therefore, if received, would be
entitled to no weight. It is impossible for any person to speak to hand-
writing being an imitation, unless he has seen the original : and it does
not appear to me necessarily to follow, that an inspector of franks has
peculiar means of ascertaining imitated hand-writing. I think, at all
events, this evidence was properly rejected, sufficient ground not having
been previously laid for receiving it. But still, even if it was receiv-
able, I am satisfied that, on the ground stated by my Lord Chief Jus-
tice, this rule ought to be discharged.
Rule discharged.
DOE ex dem. PERRY v. NEWTON et ux.
(Court of King's Bench, 1836. 5 Adol. & E. 514.)
On the trial of this ejectment before Coleridge, J., at the last Summer
Assizes for Cumberland, the defendants produced the alleged will of
one John Brockbank, on which they rested their title. The genuineness
of the signature, purporting to be that of the testator, was disputed,
and contradictory evidence given respecting it, for the plaintiff and de-
fendants. The plaintiff's counsel, in cross-examining one of the de-
fendants' witnesses, put into his hand some letters, which the witness
said he believed, from the character, to be of Brockbank's writing.
It was afterwards proposed, on behalf of the plaintiff, to submit these
letters to the jury, in order that they might compare them with the
disputed signature, and thereby judge both of its genuineness and of the
credit due to the witnesses on this subject. The letters were not in evi-
dence for any other purpose. The learned Judge would not allow them
to be put in ; and the defendants had a verdict.
Alexander now moved for a new trial, on the ground (among others)
of the rejection of evidence.
Lord Denman, C. J. 48 This is a point on which we ought not to
raise any doubt. I rather think the decision in Griffith v. Williams, 1
♦s Opinions of Patteson and Williams, J.T., omitted.
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 801
Cro. & J. 47/ 9 has been considered to go a long way; but the real
ground upon which that rests appears to me to be that the comparison
is unavoidable. There being two documents in question in the cause,
one of which is known to be in the handwriting of a party, the other
alleged, but denied to be so, no human power can prevent the jury from
comparing them with a view to the question of genuineness ; and there-
fore it is best for the Court to enter with the jury into that inquiry,
and to do the best it can, under circumstances which cannot be helped.
I cannot easily reconcile Lord Kenyon's ruling in Allesbrook v. Roach,
1 Esp. 351, with what has been done in any other case. The facts in-
deed were peculiar; but I think that at present no judge would come
to the same decision. The best rule is, that comparison of writings by
the jury shall not be allowed in any case where it can be avoided.
When we consider that the same course which is permitted in a case
like this may also be resorted to in a criminal case for the purpose of
a conviction, we cannot draw the limit too carefully.
Coleridge, J. I am of the same opinion. It is true that the ob-
jection now taken applies in some degree to the proof of ancient writ-
ings by comparison, which is constantly allowed. But that is an except-
ed case, from necessity, the documents not being capable of proof in the
usual way; and the danger of improper selection is less than in the
case of modern writings. In addition to the reasons which have been
given in this case, it must be considered how many irrelevant issues a
jury would have to try if the proposed comparison were allowed. Doc-
uments bearing upon the cause must be proved with reference to the
main points in issue, independently of the question of handwriting ; but
49 The material parts of this case, as reported in 1 Cr. & J. 47 (1S30), are
as follows:
"Assumpsit for a breach of promise to marry. At the trial before Goul-
burn, J., at the last Lent Assizes for the county of Cardigan, the jury found
a verdict for the plaintiff. A rule nisi for a new trial had been granted on
the ground that the verdict was contrary to evidence.
"At the trial, the plaintiff put in several letters, which were admitted to
be in the defendant's handwriting; and called witnesses to prove that an-
other letter, upon which the question mainly depended, was also in the hand-
writing of the defendant. The defendant called witnesses to prove that this
letter was not in his handwriting.
"In the course of the argument it was suggested by John Evans, for the de-
fendant, that the Jury had been influenced by a comparison of handwriting,
which the learned Judge had desired them to make between the admitted and
disputed letters.
"Per Curiam. Where two documents are in evidence, it is competent for the
Court or the Jury to compare them. The rule as to the comparison of hand-
writing applies to witnesses, who can only compare a writing to which they
are examined, with the character of the handwriting impressed upon their
own minds ; but that rule does not apply to the Court or Jury, who may com-
pare the two documents when they are properly in evidence.
"The rule was subsequently discharged, the judgment of Bolland, B., pro-
ceeding on an elaborate comparison which he had made between the letters
in question ; and he pointed out a number of remarkable coincidences be-
tween the documents, in the formation of several letters and the mode of
writing several words."
Hint.Ev. — 51
S02 OPINIONS AND CONCLUSIONS (Cll. 4-
for the purpose of such a comparison, many documents quite irrelevant
to the cause must be admitted, with the disadvantage that the opposite
party could not be prepared for such evidence. It might even become
necessary that the contents of such documents should be gone into.
Rule refused.
THE FITZWALTER PEERAGE CASE.
(House of Lords, 1843. 10 Clark & F. 193.)
This was the claim of Sir Brook William Bridges, Bart., to the
Barony of Fitzwalter, which was created by writ of summons in the
year 1295, and fell. into abeyance in 1756, on the death of Benjamin
Mildmay, the 17th and last Lord Fitzwalter, without surviving issue.
Mr. Loftus Wigram and Sir Harris Nicolas, the Claimant's counsel,
proposed to put in evidence some family pedigrees, which were pro-
duced from the proper custody; no objection was made to them in
that respect. They purported to have been made by Edmund Fowler,
who was proved to have died in 1751. He had stood in the direct line
of the Claimant's ancestors, being the father of his grandmother, one
of the coheiresses to the Barony, being also third son and, in the events
which happened, heir of Frances Mildmay (or Fowler), who was first
cousin and coheir of the said Benjamin, last Lord Fitzwalter. So
that, if those pedigrees could be proved to have been of the writing of
this Edmund Fowler, they would be admissible in evidence for the
Claimant, as declarations made by a deceased relative of circumstances
respecting the state of his family and immediate relatives (see Vowles
v. Young, 13 Ves. p. 143 et seq.). They had been offered in evidence
before the Attorney-General, on the reference of the Claimant's peti-
tion to him, but were rejected for want of proof of the handwriting.
The way in which it was proposed now to prove the handwriting
was this : first, by producing from the Prerogative Office Mr. Fowler's
will, — already received in evidence for other purposes, — and four
other documents, which were proved to be of his handwriting : namely,
a confidential letter written by him to the steward of his manor at
St. Clear's Hall, Essex; another letter by him, appointing a game-
keeper within that manor; a memorandum in an account book; and a
deed of settlement of property comprised within the said manor. These
were produced from the closet containing the Claimant's family muni-
ments, including the title-deeds of the said manor and property, which
now belong to him in right of his grandmother. It was proved that
the deed of settlement had been repeatedly, and very recently, acted
upon, and that all the documents had the genuine signature of "E.
Fowler." It was next proposed to prove the identity of the signer
of those documents with the writer of the pedigrees, by comparison
of the handwriting of the latter, with the signatures to the proved doc-
uments; and for that purpose —
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 803
Mr. Lewis Silvester Clarac was examined : He said, in answer to
the questions put to him by the counsel and Lords, that he held for 18
years the office of inspector of franks in the General Post-office ; and
after the abolition of the franking privilege, he had become inspector
of official correspondence; that he had much experience in distinguish-
ing the characters of handwriting, and was consulted on this matter
upon important occasions. Being then asked if he had examined the
signatures of E. Fowler to three of the documents, the deed, the will,
and the appointment of gamekeeper, all of which were produced to
him, he said he had examined the signature to the will in the Preroga-
tive Office twice, and looked four or five times at the signatures to the
letter and other documents of Edmund Fowler, and to the handwriting
of the entries in the account book and of queries on the pedigree of the
Mildmay family, at the office of the Claimant's solicitor; and he con-
sidered that by the inspections he had made, he was so familiar with
the handwriting of the person by whom these documents were written
or signed, that without any immediate comparison with them, he should
be able to say whether any other document produced was or was not
in the handwriting of the same person. He believed all these docu-
ments to have been signed by the same person ; and he did not form
his opinion merely from the signatures, but more from the general
similarity of the letters, which, he said, were written in a remarkable
character.
The Attorney-General, having before objected to the examination
of this witness, again submitted that his evidence was not receivable,
not being the knowledge of handwriting acquired by a person in the
ordinary course of business, giving him a practical acquaintance with
the writing of a particular person. The rule of admitting professional
skill in handwriting had been carried too far, and ought not to be ex-
tended. The Courts of Law were accordingly becoming more strict.
This witness was not familiar with the handwriting, which he under-
took to prove, from a course of business, like a party's solicitor or
steward, or like a parishioner admitted as a witness in some cases ; but
he had studied the handwriting for the purpose of speaking to the
identity of the writer. A person who reads a medical or chemical book
with the utmost attention, for the purpose of giving evidence on a
question of medicine or chemistry, is not an admissible witness for
such purpose. 50
The Lord Chancellor and Lord Brougham, after looking into
some of the cases referred to, said the pedigree could not be received
on the sort of proof of the handwriting now offered.
Lord Brougham added, that about five years ago, the Lord Chief
Justice of the Court of Queen's Bench did him the honour. to consult
him on this sort of evidence ; and their joint impression was, that if the
cases of Doe v. Tarver, and Sparrow v. Farrant, — one before Lord
60 Statement condensed and part of opinion omitted.
804 OPINIONS AND CONCLUSIONS (Cll. 4:
Chief Justice Abbott, and the other before Mr. Justice Holroyd, —
were correctly reported, they had gone farther than the rule was ever
carried. In the present case his noble and learned friend (the Lord
Chancellor) and himself were clearly of opinion that they ought not to
allow a person to say from inspection of the signatures to two or three
documents — two only, the deed and will, being genuine instruments,
admitted to be in the handwriting of Edmund Fowler — from the in-
spection of those two documents, that he could prove the handwriting
of the party. No doubt such evidence had been often received, be-
cause it was not objected to. A witness was properly allowed to speak
to a person's handwriting from inspection of a number of documents
with which he had grown familiar from frequent use of them ; and it
was on that ground that a person's solicitor and steward were admitted
to prove his handwriting.
Mr. Wigram referred to a case of a trial at bar, Revert v. Braham
(4 Term. Rep. 497), in which an inspector of franks at the Post-
office was admitted to say, as a matter of skill and judgment, wheth-
er the name signed to a will was genuine or in a feigned hand.
Lord Brougham. Yes, truly; for that is matter of professional
skill (vide ante, p. 154). But that is no reason for admitting a witness
to speak to the real handwriting of a person from only having seen
a few of his signatures to other instruments produced to him, and
that for the purpose of proving its identity. * * * 51
6i The document was finally admitted in this case on the testimony of the
family solicitor, who had become familiar with the handwriting in question
from an examination of a large number of title deeds, etc.
A somewhat similar question arose in Doe v. Suckermore, 5 Adol. & El.
703 (1836), the facts of which are thus stated in the headnote:
"Defendant in ejectment produced a will, and, on one day of the trial
(which lasted several days), called an attesting witness, who swore that the
attestation was his. On his cross-examination, two signatures to depositions
respecting the same will in an ecclesiastical court, and several other signa-
tures, were shown to him (none of these being in evidence for any other pur-
I ose of the cause), and he stated that he believed them to be his. On the fol-
lowing day, the plaintiff tendered a witness to prove the attestation not to be
genuine. The witness was an inspector at the bank of England, and had no
knowledge of the handwriting of the supposed attesting witness, except from
having, previously to the trial and again between the two days, examined the
.signatures admitted by the attesting witness, which admission he had heard
made in Court.
"Per Lord Denman, C. J., and Williams, J. Such evidence was receivable.
"Per Patteson and Coleridge, JJ. it was not."
The evidence was rejected ai the trial, and the Court being equally divided
in opinion, a new trial was refused.
In is.", 1 the vexed question was settled in England by section 27, c. 125, 17
Victoria:
"Comparison of a disputed writing with any writing proved to the satis-
faction of the judge to be genuine shall be permitted to be made by witnesses ;
and such writings, and the evidence of witnesses respecting the same, may
be ub nltted to (he Court and jury as evidence of the genuineness, or other-
wise, uf the. writing in dispute."
4
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 8U5
RIDEOUT v. NEWTON et al.
(Superior Court of New Hampshire, 1S15. 17 N. H. 71.)
Assumpsit on a note, dated on the eighth day of August, 1843, for
$50, purporting to be made by the defendants to the plaintiff.
There was no service upon Levi H. Newton, and Elbridge G. New-
ton pleaded the general issue, denying that he ever signed the note.
Among other witnesses produced by the plaintiff to prove the signa-
ture to be genuine, was one who testified that he never saw the said
Elbridge write but once, and then only to receipt a bill which he pre-
sented against the witness. To the competency of this witness to
give an opinion as to the genuineness of the signature on the note,
defendant objected, but the court admitted him. 62
Gilchrist, J. * * * There is no rule of law that requires that a
witness, called to prove the hand-writing of a party, should have seen
the party write a large number of times. Hand-writing, like the coun-
tenance, form, gait, and gesture of a party, is recognized by some more
readily than by other witnesses, and is in some persons marked by
more decisive and obvious peculiarities than in others. All that is
requisite, is to ascertain whether the witness has seen hand-writing
which, by an infallible test, he knows to be that of the party; and
then he must upon his oath declare if the writing exhibited appears to
him to be that of the same party. The weight to be attached to such
testimony must depend upon the ordinary tests of knowledge, the
capacity of the witness, and his disposition to tell the truth, and the
means that have been afforded him, whether from the intrinsic na-
ture of the subject itself, or the familiarity of the witness with it to
acquire the information he assumes to have. The witness to the genu-
ineness of the defendant's signature to the note was therefore prop-
erly admitted. * * *
New trial (on other grounds). 53
6 2 Statement condensed and part of opinion omitted.
ss And so in Woodford v. McClenahan, 9 111. (4 Gilman) 85 (1847).
The witness may acquire a knowledge of the hand-writing in question from
business correspondence without having seen the person write. Keyburn v.
Belotti, 10 Mo. '597 (1S47) ; Redding v. Redding's Estate, 69 Vt. 500, 38 Atl.
230 (1897). But not from seeing a document not known or acknowledged to
have been written by such person. Randolph v. Gordon, 5 Price, 312 (1818).
For a collection of the cases, see Ratliff v. Ratliff, 131 N. C. 425, 42 S. E.
887, 63 L. R. A. 963 (1902), annotated.
80G OPINIONS AND CONCLUSIONS (Cll. 4
ELXINGWOOD v. BRAGG.
(Supreme Judicial Court of New Hampshire, 1S72. 52 N. H. 4SS.)
Assumpsit, by John W. Ellingwood against Wm. W. Bragg. The
plaintiff offered Wm. Heywood as an expert, to give an opinion upon
the question whether a long account upon the defendant's books
against the plaintiff was written at different times, as it purported
to be on the book, or whether it was all written with the same pen
and ink and at the same time. The witness testified that he had been
in practice as an attorney-at-law some forty years, and had had about
the same experience as lawyers in general in the examination and com-
parison of handwritings; that he had been engaged in one or two
cases which led him particularly to examine and compare handwrit-
ings, but he did not claim to be able to give an opinion upon which
any great reliance could be placed. The court allowed him to give his
opinion as an expert, and the defendant excepted. The question of
discretion was fully reserved.
The questions of law thus raised were reserved.
Foster, J. 54 The defendant excepted to the ruling of the court, ad-
mitting the testimony of Mr. Heywood as an expert. The rules which
govern the determination of the question thus presented, were declared
by this court in the recent case of Dole v. Johnson, 50 N. H. 452;
and we see no reason to modify the views then expressed.
According to that case (and upon elementary principles), in order
to qualify one to testify as an expert, it should appear, in the first
place, that the subject concerning which he is called to testify is one
upon which the opinion of an expert can be received. The subject
must be one peculiar and exceptional, concerning which some explana-
tion, such a peculiar knowledge alone can afford, is required, in order
to render it intelligible to the comprehension and understanding of
ordinary men. In other words, the subject-matter of the evidence
"must so far partake of the nature of a science 3s to require a course
of previous habit or study in order to the attainment of a knowledge
of it." Smith's note to Carter v. Boehm, 1 Smith's L. Cases, 286 a.
The rule which admits the testimony of experts, in any case, is
exceptional ; and all evidence, which is not founded upon absolute
knowledge of the facts pertaining to the cause under investigation,
should be received with caution. See Brehm v. Great Western Rail-
way Co., 34 Barb. (N. Y.) 273.
We are not disposed to .enlarge, but rather to restrain within as
narrow limits as a due regard for the ascertainment of truth in judi-
cial investigations will allow, all such encroachments, so to speak, upon
the province of the jury as shall permit witnesses to express opin-
ions merely.
«•* Part of opinion omitted.
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 807
We are not prepared to say that the subject-matter of Mr. Hey-
wood's testimony was one upon which the opinion of an expert was
inadmissible. But it comes very near the line of demarcation.
It is not like a question concerning the genuineness of a signature
or other writing, about which persons, like cashiers of banks, for
example, skilled by a course of study, training, and practice, may un-
doubtedly be called to assist the investigations of unskilled jurors.
It is more, perhaps, like the case of a comparison of writings, which
was formerly held in England to be inadmissible, for reasons not ap-
plicable to New England and its officers and institutions, namely be-
cause the jury were supposed to be too illiterate to judge of this sort
of evidence.
The question here is not whether the writings were genuine or
feigned, but whether the items of account were written at different
times, or whether they were all written at the same time with the
same pen and ink.
It is admitted, as we understand it, that the items were all written by
the same person, — by which admission the principal and most diffi-
cult investigation is withdrawn, from the case; and the other ques-
tion would seem to rest more upon conclusions to be drawn from
the general appearance of the color of the ink, and the coarse or fine
character of the letters, and their uniformity or diversity in this re-
spect, than from any other sources of knowledge. Such comparison
and examination, it seems to us, might not imprudently be entrusted
to such men as usually compose our panels of jurors.
But whether the subject upon which Mr. Heywood was called to
testify was one upon which the opinion of an expert may be received
or not, we are clearly of the opinion that the witness did not possess
the legal qualifications requisite to enable him to testify in the ca-
pacity of an expert.
In this matter, our opinion coincides with his own, as it was mod-
estly, but conscientiously, expressed upon the witness-stand.
His attention had only once or twice, in the course of a long pro-
fessional experience as a lawyer, been particularly called to the exam-
ination and comparison of handwritings.
He was not, with reference to the subject under investigation, a
man of science, and he was not qualified by any previous habit and
course of attention, observation, and particular and special study in
that direction.
The possession of some, at least, of these qualifications was, in the
opinion of this court two years ago, deemed essential to the admissi-
bility of such testimony, in the exercise of a prudent judicial discre-
tion. Dole v. Johnson, 50 N. H. 452, 459.
We may reasonably doubt whether the verdict. of the jury was ob :
tained or influenced by the evidence thus improperly received, since,
as already remarked, the subject-matter of the evidence was one which
the jury might, perhaps, determine upon their own inspection. And
SOS OPINIONS AND CONCLUSIONS (Ch. 4
it is matter of deep regret that the question of discretion should be
reserved in cases like this, the competency of such evidence being most
conveniently and satisfactorily determined at the trial, upon personal
examination of the witness. Dole v. Johnson. This court cannot
deal with the matter so confidently as the presiding judge ; and the re-
vision of the question, by a tribunal not so competent to consider and
pass upon it as the tribunal by which it is reserved, seems an almost
unwarrantable expenditure of labor, time, and pecuniary cost.
But, since the question is reserved and must be determined, we see
no way to avoid the expense and delay of a new trial of the cause.
* * * 55
MILES v. LOOMIS et al.
(Court of Appeals of New York, 1S7S. 75 X. Y. 2S8, 31 Am. Rep. 470.)
This action was brought upon a promissory note claimed to have
been made and delivered by defendants' testator to the plaintiff.
The plaintiff alleged in his complaint that the note was in fact made
by the testator that it might be used as an off-set to a note which he
at the same time executed to the testator and at his earnest solicita-
tion, for an amount which he did not justly owe, but which the testa-
tor desired in order to satisfy his wife and her father, and which the
testator did not intend should be paid by the plaintiff, but that said
note had after the death of the testator been transferred for a valu-
able consideration, before maturity, so that the plaintiff was liable
thereon to the bona fide holder. The defense was forgery of the note
in suit.
The note given by the plaintiff to the deceased was given in evi-
dence on the trial without objection, the body of it including the name
the deceased as payee was proved to be in his handwriting. The
will of the testator was also put in evidence by the defendants, and
'->'■> See general test as to qualification suggested in Miles v. Loomis, 7." X. Y.
288, 31 Am. .Rep. 470 L87S
ipare Vinton v. Peck, 14 Mich. 287 (1S66), where the court seemed to
think that no particular qualifications were necessary, in cases involving
handwriti:
In other fields something more than general information on a given subject
is required. Thus the editor of an agricultural journal who had reail
]y about certain animal diseases was held lacking in the necessary
>ns to give an opinion on such matters. Dole v. Johnson, 50 X. II.
- -"
s are assumed to be generally competent as to medical mat
and it try that they should have had personal experience with
d of <; Mr injury in question; their knowledge may be largely
.y of medical wri- -ate v. Terrell, 12 Rich. 321
36 Kan. l. 12 Pac. 3] Pall
Co., IS . 311, ol X. I. ; State v. Wood,
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 809
was received without objection. Defendants then called certain wit-
nesses who after testifying to their qualifications to speak as expert^
in handwriting, were asked to look at the name of the deceased ap-
pearing in the body of the note executed by plaintiff and at the signa-
ture to the will, and were then asked to give their opinion, assuming
them to be genuine signatures, as to whether the signature to the note
in suit was genuine. This was objected to upon the ground that such
a comparison of hands could not be made by experts. The objection
was overruled and exception taken. The witnesses answered sub-
stantially, that in their opinion the signature was not genuine ; that it
was not written by the same person as the one who wrote the others.
They were also permitted to testify under objection and exception
that in their opinion the signature in question was simulated.
Hand, J. 56 I think the two documents put in by the defendants
without objection on the part of the plaintiff must be regarded as
properly in evidence for all the purposes of the case. * * *
Treating therefore these two signatures of the testator as properly
in evidence, the question is whether experts in handwriting could be
permitted, upon comparison in court of these signatures with that of
the note in suit, without any other knowledge of the testator's writ-
ing, to express an opinion as to the genuineness of the latter and as to
whether it appeared a natural or simulated hand.
The statement of the learned counsel for the appellant that precisely
this kind of evidence has never yet been held proper by the court of
last resort in this state is, we believe, accurate, although it comes in
principle within the decision in Dubois v. Baker, 30 N. Y. 355, 361.
Indeed, I think it must be conceded that the earlier cases adjudged in
our courts lean pretty decidedly against the admissibility of such evi-
dence. In this respect we were formerly more strict than any of the
other States. People v. Spooner, 1 Denio, 343, 43 Am. Dec. 672;
Jackson ex dem. v. Phillips, 9 Cow. 112; Phcenix F. Ins. Co. v. Phil-
ip, 13 Wend. 81. Our courts followed of course the common law
which was supposed to differ from the practice of the civil and ecclesi-
astical courts. The nisi prius decisions in the English courts, although
not in entire harmony (Allesbrook v. Roach, 1 Esp. 351) and much
criticised by the text writers, were generally hostile to the admission
of comparison by experts until by the act of parliament s7 in 1854
such evidence was declared legitimate (Stranger v. Searle, 1 Esp. 14:
Clermont v. Tullidge, 4 Car. & P. 1 ; Rex v. Cator, 4 Esp. 117).
Even, however, before the passage of that act a jury was allowed, it-
self, to institute the comparison, but only with documents in evidence
before them and relevant to the issue. Doe dem. Perry v. Newton, 5
5 6 Part of opinion omitted.
57 For a review of similar legislation in New York, see People v. Molineux,
168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193 (1901). A number of the states
have such statutes at this time.
810 OPINIONS AND CONCLUSIONS (Cll. 4
Ad. & Ell. 514; Solita v. Yarron, 1 Moo. & Rob. 133; Griffiths v.
Williams, 1 Cro. & Jer. 47; Bromage v. Rice, 7 C. & P. 547. 58
* * *
Although this decision 69 lays down, as has been already intimated,
a somewhat more liberal rule as to evidence of handwriting than had
previously prevailed in this State, yet it has been generally acquiesced
in, is in conformity with the law in other States and seems to have be-
come an established practice in the trial courts. See Goodyear v.
Vosburgh, 63 Barb. 154; Johnson v. Hicks, 1 Lans. 160; Roe v. Roe,
40 N. Y. Super. Ct. 1.
We are very strongly of the opinion that it is sounder in principle
than the more narrow one and in no respect an infringement upon any
wholesome and just limitation of expert testimony.
Evidence of handwriting, it is universally conceded, may be opinion
merelv. It is as universally conceded that a witness who has either
ever seen the party write or who, not having seen him write, has re-
ceived letters from him which have been "acted upon" by him as gen-
uine, is competent to give an opinion as to his handwriting. And
this competency is not affected by the lack of frequency of observa-
tion, the length of time which has elapsed since the writing was seen,
or the slightness of the correspondence, although the weight of the
opinion will of course depend much upon these circumstances.
From what in these cases is the opinion derived, if not from a men-
tal comparison of hands? The signature is presented to the witness
and his only means of forming an opinion upon it is by recalling with
more or less distinctness to his mind images of the signatures he has
either seen made or attached to letters received, and comparing them
with the one presented for his opinion. This is certainly a "compari-
son of hands" and in my judgment no favorable distinction as to ac-
curacy or safety can be made between such a mental process and that
of the expert who has become quick by practice in detecting identity
of hands, and also compares in his mind and with his eye the one in
question with other signatures as certainly genuine as those which
the ordinary witness has seen written or received in letters. The
comparative weight of the two kinds of evidence is not the question
under consideration. The opinion of the ordinary witness, founded
only upon a mental comparison of the disputed writing with a single
signature seen by him twenty years before, would be worth little, but
it would undoubtedly be competent. Jackson ex dem. v. Van Dusen,
5 Johns. 144, 4 Am. Dec. 330; Eagleton v. Kingston, 8 Ves. 473. So
the opinion of an expert founded upon a comparison with but one or
two genuine signatures should not perhaps be regarded as of much
value, but it stiil has every claim, in principle, to competency possess-
68 in iiic omitted passage the courl reviewed Doe v. Suckermore, 5 Ad. &
i.i. 703 (1836), and Dubois v. Baker, ::<» N. Y. uGG (1SC1).
»» Dubois v. Baker, :;o N. Y. :;uu (1864).
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 811
eel by the other. Nor does the distinction sought to be raised by Lord
Denman in Doe v. Suckermore [5 Ad. & E. 703], supra, between an
opinion of an expert who has previously examined other genuine sig-
natures put in evidence and then is called to speak as to genuineness
from his knowledge of the signature thus gained, without actual com-
parison before the court, and one given upon an examination or com-
parison in court of the signatures and without any previous knowl-
edge, seem on scrutiny to be well grounded or practicable. It would
be impossible to draw a line between these processes. It is undoubt-
edly true that the opinion as to handwriting should depend not so
much upon mathematical measurements and minute criticisms of lines
nor their exact correspondence in detail, when placed in juxtaposition
with other specimens, as upon its general character and features as
in the recognition of the human face. But in the case of one expert,
his mental image or idea of the genuine handwriting may become as
clear and vivid and accurate by an examination of the other signa-
tures on the instant as in the case of another of less practice or quick-
ness of perception after hours or days of study. The amount of
knowledge gained by this study and the length of time and frequency
of opportunity to gain it affect the weight of the evidence as in the
case of the ordinary witness, but cannot properly decide its compe-
tency.
The principal objections which have been raised to the comparison
of hands are two : First, the introduction of numerous and distract-
ing collateral issues as to the genuineness of the signatures to be
compared. As to each one of these, it is said there might be the same
controversy as with regard to the original signature, and the further
introduction of the comparison of hands and so the number of issues
to be decided be without end. But this objection seems tolerably met
by the restriction of the signatures to be compared to those necessarily
or properly proved in the case as relevant evidence for other purposes
and upon the genuineness of which, if there is any controversy about
them, the jury must pass in any event. This limitation, it must be
conceded, is not very philosophical or logically satisfactory, but is
justified by the necessity of the case, and at all events answers the ob-
jection of collateral issues. Second. The second objection to the
comparison of hands is that no man writes always the same signature
and the specimens will be unfairly selected as being unlike or like the
signature in dispute according to the interest of the party producing
them. They will not be fair average specimens of the general charac-
ter of the handwriting. Dallas, C. J., Burr v. Harper, Holt N. P. C.
44. That, consequently, the expert, to whom they are submitted, will
have no opportunity of obtaining an accurate notion of the ordinary
natural hand; and as illustrative of this objection, the decision of
Lord Kenyon is cited, who refused to allow a witness to give an opin-
ion, whose only knowledge was from the signatures he had seen the
party himself write for the avowed purpose of showing his true man-
812 OPINIONS AND CONCLUSIONS (Cll. 4
ner of writing. Stranger v. Searle, 1 Esp. 14. The force of this ob-
jection also is, I think, done away by the restriction of the rule to sig-
natures relevant in the cause for other purposes and as to which
therefore there could hardly be any selection of the signatures for the
purposes of comparison.
On the whole therefore I am inclined to concur in the soundness of
the doctrine upon this point contended for in the most approved text
writers upon evidence. "It cannot be denied," says Mr. Starkie (Star-
kie on Evi. vol. 2, p. 375), "that abstractly a witness is more likely to
form a correct judgment as to the identity of handwriting by compar-
ing it critically and minutely with a fair and genuine specimen of the
party's handwriting than he would be able to make by comparing what
he sees with the faint impression made by having seen the party write
but once and then perhaps under circumstances which did not awaken
his attention." "When other writings," says Prof. Greenleaf (Greenl.
on Evi. § 578), "admitted to be genuine are already in the case, here
comparison may be made by the jury with or without the aid of ex-
perts." See, also, Phillips on Evi. vol. 1 (6th Ed.) 472; Evans' note
to Pothier on Contracts, 2 Evans' Pothier, p. 185.
My conclusion is that there was no error in the admission of the
evidence of experts before the referee.
The counsel for appellant insists here that the witness is called by
the defendants as experts were not qualified as such, but no such ob-
jection was taken upon the trial. These witnesses were, however, we
think shown to be sufficiently competent to give the opinions upon
handwriting. They had been engaged in occupations in which it was
their duty to scrutinize handwritings and detect forgeries and had ac-
quired more or less skill by practice.
There being no error committed upon the trial, the judgment must
be affirmed, with costs.
All concur, except Andrews, J., absent.
Judgment affirmed. 00
60 Accord: Griffin v. Working Women's Home Ass'n, 151 Ala. 597, 44 South.
605 (1907); Himrod v. Oilman, 147 111. 293, 35 N. E. 373 (1S93) ; Vinton v.
Peck, 14 Mich. 287 (1866) ; State v. David, 131 Mo. 3S0, 33 S. W. 28 (1895).
In Stale v. Thompson, 132 Mo. 301, 34 S. W. 31 (189G), in holding that ir-
relevant documents should not have been admitted for the purpose of com-
parison, the rule was stated as follows: "Under repeated adjudications of
this court it has been ruled that unless writings are in evidence for some le-
gitimate purpose in the case and are admitted to be in the genuine handwritr
bag of i!i'' party or he is estopped from denying their genuineness they cannot
be admitted Cor the purpose of comparison with disputed writings or for the
purpose of proving the handwriting of a party." A similar limitation is sug-
gested in some of the Illinois cases.
in Massachusetts ami a number of the New England states a comparison
is allowed with any writing proved to he genuine, though not otherwise rele-
vant. .Mon.lv v. Rowell, 17 Pick. (Mass.) 400, 28 Am. Dec. 317 (1835).
In re II.,,, kins' Will, 171.' N. V. 360, • ;."> N. 10. 17::, (15 L. K. A. 95, 92
Am. St. Rep. 746 (1902), excluding expert opinion as to the genuineness of'
u cross mark used as a .signature.
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 813
THROCKMORTON v. HOLT.
(Supreme Court of the United States, 1901. 180 U. S. 552, 21 Sup. Ct. 474, 45
L. Ed. 663.)
Mr. Justice Peckham. 61 * * * Again, in the course of the trial
the contestants called a Mrs. Briggs as a witness, and proved by her
that she was a journalist by profession and had made literature her
business in life, and that she had received instruction from Judge Holt
in the line of composition in the English language ; that she had gone
to him and asked his advice about a series of articles written by her,
because she had been informed that he was a master of the English
language; that he was her master and teacher in such matters. She
was also somewhat familiar with his handwriting, and stated that in
her opinion the signature "J. Holt" to the paper in question was not
the signature of Judge Holt. She was then asked: "Have you
formed that opinion in any .respect upon any matter except the mere
handwriting?" This was objected to and admitted under an exception.
The witness answered that she had, that it was from the composition :
"More the composition, as well as the writing."
Other witnesses were called who were permitted to prove that they
formed their opinions in regard to the paper from its composition and
style, and their knowledge of Judge Holt's legal and literary attain-
ments, as well as from their familiarity with his handwriting. One
witness was asked this question: "Let me call your attention to the
use of the word 'inherit' in that paper, in the middle paragraph. From
your knowledge of General Holt's characteristics and his way of ex-
pressing himself, what do you think as to that being his expression?"
This question was duly objected to and the grounds fully stated, but the
court overruled the objection and permitted the witness to answer,
which he did by saying that he did not think the testator would use
that expression. * * *
We are thus brought to a consideration of the merits of the ques-
tion decided by the court below. Is the opinion of a witness as to the
genuineness of the handwriting found in the paper, based in part up-
on the knowledge of the witness, of the character and style of compo-
sition and the legal and literary attainments of the individual whose
handwriting it purports to be, competent to go to the jury upon that
question? If he is able to give an opinion without such evidence, and
from his familiarity alone with the handwriting, can the attempt be
permitted to corroborate or strengthen such an opinion by this kind of
evidence? We think not. An expert in regard to handwriting is
one who has become familiar with the handwriting of the individual
in regard to whom the question is raised. Handwriting is a physical
matter, and does not in itself represent any characteristics of the
writer as to composition or general style, or as to his literary or legal
6i For the statement of the case, see ante, p. 701. Part of opinion omitted.
S14 OPINIONS AND CONCLUSIONS (Cll. 4
attainments. It is to be seen and the characters recognized by the
eye. But the process of his mind and the language or style in which
in the opinion of a witness the person habitually clothes his thoughts,
are not matter of expert evidence, proper to be presented to a jury, for
the purpose of determining whether the paper presented is or is not
in the handwriting of the particular individual, in regard to whom the
inquiry is made. The fact may of course be proved that the person
was a man of intelligence, education, high legal attainments, refine-
ment, and not addicted to coarseness in speech or writing, and the
inference may be sought to be drawn from the facts that the paper in
question is or is not his composition and is or is not his handwriting ;
but where it is material the inference is for the jury, and taking the
opinion of the witness in that regard is to take his opinion upon the
very subject to be decided by the jury, and is not at all a proper case
for opinion evidence.
We think the court, therefore, erred in permitting witnesses to give
an opinion as to the genuineness of handwriting founded partly upon
knowledge and familiarity with the legal attainments, the style and
composition of the individual whose handwriting was in controversy,
and as corroborative of their opinion from knowledge of handwriting
alone. * * *
Judgment reversed.
PEOPLE v. STORRS.
(Court of Appeals of New York, 1912. 207 N. Y. 147, 100 N. E. 730, 43 U R.
A. [N. S.] 860, Ann. Cas. 1914C, 196.)
BarTlETT, J. 62 * * * It was important, if not essential, to the
case for the prosecution to prove that the body of the document was
produced by the use of the defendant's typewriting machine. For
this purpose the district attorney was permitted, over the defendant's
objection and exception, to introduce in evidence another paper pre-
pared by a witness who was at the time the defendant's law partner
upon the defendant's typewriter. The contents of this paper were in
no wise relevant to the issue on trial, and the paper was received, as
the learned county judge stated, not so much as a standard for the
comparison of handwriting as upon the principle that, where an im-
pression is made upon paper, wood, leather, or any other plastic ma-
terial by an instrument or mechanical contrivance having or possessing
a defect or peculiarity, the identity of the instrument may be estab-
lished by proving the identity of the defects or peculiarities which it
r esses on different papers,
tion 961d of the Code of Civil Procedure, amended so as to take
effect in its present form on February 17, 1909, provides as follows:
Pari of opinion omitted.
Sec. 3) EXAMINATION AND COMPARISON OF WRITINGS 815
''Comparison of a disputed writing with any writing proved to the
satisfaction of the court to be the genuine handwriting of any per-
son, claimed on the trial to have made or executed the disputed in-
strument, or writing, shall be permitted and submitted to the court
and jury in like manner." Formerly the comparison of disputed hand-
writing with unquestionable specimens was permitted only when the
latter had been admitted in evidence for other purposes, as relevant
to the issue, or without objection. Miles v. Loomis, 75 N. Y. 288,
31 Am. Rep. 470. The history of subsequent legislation on the sub-
ject and the interpretation of such legislation by the courts will be
found fully narrated and explained in the opinion of Judge Werner
in People v. Molineux, 168 N. Y. 264, 318, 61 N. E. 286, 62 L. R. A.
193. I think it may well be doubted whether typewriting can be
deemed handwriting within the meaning of the existing statute. Nev-
ertheless, I think the law sanctions the reception of the evidence in
question, substantially on the theory adopted by the trial judge.
If the impression of a seal were in controversy, it would surely be
competent to show by other impressions from the same sealing instru-
ment that the impression was invariably characterized by a particular
mark or defect. Impressions made by a shoe, for the sole .and very
purpose of comparison, would undoubtedly be competent evidence in
a prosecution for burglary, where it was sought to identify the ac-
cused by means of his footprints. This evidence is quite analogous.
Typewritten specimens were similarly received for the purpose of
showing that certain disputed receipts could not have been produced
by the typewriter on which they were alleged to have been prepared,
in a case tried before Vice Chancellor Pitney of New Jersey in 1893.
Levy v. Rust, 49 Atl. 1017, 1025. There the court was called upon to
determine the character of certain receipts which were alleged to be
forgeries. To assist him the vice chancellor took the testimony of
"a gentleman who is employed by the vendors of typewriting ma-
chines to go about the country and examine typewriting machines and
see whether they are out of order, and in that way his eye becomes
very acute and quick to discover things that will escape the vision of
a casual observer." This witness pointed out three defects in the
machine on which the questionable receipts must have been written.
The period mark was invariably too low. The letter "s" was "off its
feet," and the "u" was placed too far to the left. Specimens of type-
writing done by the machine on which the receipts were said to have
been written were produced for comparison, and in these specimens
none of these defects appeared. Hence the vice chancellor concluded
that they were written on a different and defective machine and were
forgeries. * * *
These several cases base the rulings which have been mentioned
upon the assumption or proof that a typewriting machine may pos-
sess an individuality which differentiates it from other typewriters and
which is recognizable through the character of the work which it pro-
S16 OPINIONS AND CONCLUSIONS (Cll. 4
duces. Inasmuch as its work affords the readiest means of identifica-
tion, no valid reason is perceived why admitted or established samples
of that work should not be received in evidence for purposes of com-
parison with other typewritten matter alleged to have been produced
upon the same machine. * * *
Reversed (on other grounds).
C3
es For a collection of the cases on this point, see notes to principal case ii>
45 L. R. A. (N. S.) S60 (1912). . . .
For a collection of the cases dealing with expert opinion as to typewriting,
see Baird v. Shaffer, 101 Kan. 585, 168 Pac. S36, L. R. A. 191SD, 638 (1917),
annotated. „ __ _ v
See, also, People v. Jennings, 252 111. 534, 96 N. E. 1077, 43 L. R. A. (N. S.)
1206 (1911) admitting expert comparison of finger prints; and so in State v.
Cerciello. Sfi N. J. Law, 309, 90 Atl. 1112. 52 L. R. A. (N. S.) 1010 (1914) ; Peo-
ple v. Roach. 215 N. Y. 592, 109 X. E. 618, Ann. Cas. 1917A, 410 (1915).
Sec. 1) CIRCUMSTANTIAL EVIDENCE 81'
CHAPTER V
CIRCUMSTANTIAL EVIDENCE l
SECTION 1.— CHARACTER. 2
REX v. STANNARD et al.
(Central Criminal Court, 1837. 7 Carr. & P. 673.)
The prisoners were indicted for robbery.
The prisoner's counsel having called witnesses to character, C. Phil-
lips, for the prosecution, stated, that in the course of the day it had
been intimated to the bar in another place, that in future, when the
prisoner's counsel called witnesses to character, the counsel for the
prosecution would have the right, if he chose to exercise it, of replying
in the case, although no witnesses to fact were called : and as this had
never been the practice in cases of misdemeanor, he wished to hear
their lordships' opinions on the subject.
Patteson, J. I am very sorry that this question has been raised.
I was in great hopes that the same practice would have been tacitly
adopted by counsel, in cases of felony since the late act, as has hither-
to prevailed in cases of misdemeanor. That practice, as far as my
experience goes, has uniformly been, that when witnesses have been
called, on the part of the accused, to character only, and for no other
purpose, the counsel for the prosecution has not addressed the jury in
i Denio, C. J., in People v. Kennedy. 32 N. T. 141 (1865): "The logic upon
which circumstantial evidence is based is this: We know, from our experi-
ence, that certain things are usual concomitants of each other. In seeking
to establish the existence of one, where the direct proof is deficient or un-
certain, we prove the certain existence of the co-relative fact, and thus estab-
lish with more or less certainty, according to the nature of the case, the
reality of the principal fact."
- Whether in certain tort actions the character of the plaintiff may affect
the amount of damages, or whether the bad character of the plaintiff is one
of the facts going to make up probable cause in actions for malicious prose-
cution, are not questions belonging to the law of evidence, and hence are not
treated here. If good or bad character does affect the amount of dan
recoverable, or is otherwise legally important, it may be proved as a matter
of course, and the only problem in evidence is the means of proof, whether
by specific acts, personal opinion, or general reputation.
The evidential use of character to discredit or support a witness has al-
ready been considered in connection with the impeachment and corroboration
of witnesses. For that purpose the logical relevancy of character seems never
to have been doubted. — Ed.
Hint. Ev.— 52
SIS CIRCUMSTANTIAL EVIDENCE (Cll. 5
reply; but I am not aware of any case in which the right to do so has
been decided one way or the other. I can easily understand and
lament the painful situation in which counsel for the prisoner may be
placed, in exercising a discretion, whether, for the sake of proving the
previous character of his client, and having no evidence directly bear-
ing upon the facts of the case, he should run the risk of an ingenious
reply from the opposite counsel. However, if I am driven to give an
opinion. I must say that I think that the counsel for the prosecution
has a right to reply, where any witnesses are called for the defence,
whether to facts or to character. I cannot in principle make any dis-
tinction between evidence of facts, and evidence of character: the
latter is equally laid before the jury as the former, as being relevant
to the question of guilty or not guilty: the object of laying it before the.
jury is to induce them to believe, from the improbability that a person
of good character should have conducted himself as alleged, that there
is some mistake or misrepresentation in the evidence on the part of
the prosecution, and it is strictly evidence in* the case. I am there-
fore of opinion that the counsel for the prosecution must, upon prin-
ciple, be at liberty to address the jury in reply, where such evidence is
given. 8
TIOPPS v. PEOPLE.
(Supreme Court of Illinois, 1SG3. 31 111. 3S5, 83 Am. Dec. 231.)
William Hopps was indicted in the court below for the murder of
his wife. Being put upon his trial, the fact of the killing was clear-
ly established, and was not controverted by the accused; but it was
insisted in his behalf, that he was insane at the time of the commis-
sion of the act charged, and in reference to that question voluminous
proofs were made both by the defense and the prosecution.
The trial below resulted in the conviction of the prisoner of the
crime as charged in the indictment, and a new trial being refused, he
brought the case to this court upon a writ of error. * * *
Mr. Justice BrEESE. 4 * * * He complains, first, that the Circuit
Court would not permit him to give evidence of his uniform good
character as a man and a citizen.
It was, at one time, a disputed question, whether such evidence
could be given in a case where, as in this, the homicide is not denied.
Some of the books say, such evidence, if offered, ought to be restricted
to the trait of character in issue, or, in other words, should bear some
analogy to the nature of the charge. 3 Gr. Ev. § 25.
To the same effect is 2 Russ. on Crimes, 784, but yet, he says, the
good character of an accused party is an ingredient which should al-
►plnlon of Williams. J., omitted.
« Statement condensed. Pari of opinion of Breese, J., and'the opinions of
Caton, 0. J., and Walker, J., are omitted.
Sec. 1) CHARACTER 819
ways be submitted to the consideration of the jury, along with the
other facts of the case. Id. 785.
In a case where the defense is insanity, we cannot have a doubt, that
evidence of uniform good character as a man and a citizen, is proper
for the jury to consider ; whether a person whose character has been
uniformly good, has, in a sane moment, committed the crime charged.
It is undoubtedly true, a sane man, whose previous character has
been unexceptionable, may commit an atrocious homicide, no doubt
may exist of the fact, yet, under his plea of insanity, should he not be
entitled to all the benefit which may be derived from the fact of uni-
form good character, as tending, slightly, it may be, to the conclu-
sion that he could not have been sane at the time the deed was done.
Generally, a person of good character does not, of a sudden, fall from
a high position to the commission of outrageous crimes; should he
do so, would it be an unnatural or forced inference, that he may have
been affected with insanity at the time? But be this as it may, it
seems to be now settled, that such evidence in capital cases, is ad-
missible. In the case of the Commonwealth v. Hardy, 2 Mass. 317,
which was a capital case, Parsons, C. J., said, a prisoner ought to be
permitted to give in evidence his general character in all cases. Sew-
ell and Parker, justices, said, they were not prepared to admit that
testimony of general character should be admitted in behalf of the
defendant, in all criminal prosecutions; but, they were clearly of
opinion, that it might be admitted in capital cases in favor of life.
The same rule was stated in the case of the Commonwealth v. Webster,
5 Cush. 325, 52 Am. Dec. 711. The Court there say, it is the privilege
of the accused, to put his character in issue or not.
In 2 Bennett & Heard's Leading Cases, 159, and notes, the cases
are collected and commented on, in which this rule is recognized.
In the case of People v. Vane, 12 Wend. (N. Y.) 78, the court held,
that evidence of the good character of the defendant on the trial of
an indictment, is always admissible, though it cannot avail when the
evidence against him is positive and unimpeached ; but when the evi-
dence is circumstantial, or comes from a suspected or impeached wit-
ness, proof of good character is important.
We think, at least in view of the defense relied on, the evidence of
the prisoner's uniform correct bearing, as a man and a citizen, should
have been made known to the jury. A good character is a most pre-
cious possession, and it ought to be permitted, in favor of life at
least, to go to the jury
Judgment reversed.
* *
820 CIRCUMSTANTIAL EVIDENCE (Cll. 5
EDGIXGTON v. UNITED STATES.
(Supreme Court of the United States. 1S06. 164 U. S. 361, 17 Sup. Ct. 72, 41
L. Ed. 467.)
At the March term, 1895, in the district court of the United States
for the Southern district of Iowa, Avington A. Edgington was tried
and found guilty of the crime of making a false deposition, on April
13, 1894, in aid of a fraudulent pension claim on behalf of his mother,
Jennie M. Edgington, claiming to be the widow of Francis M. Edging-
ton.
On April 30, 1895, judgment was pronounced against the defendant
that he pay a fine of $1,500 and the costs, and that he stand com-
mitted to jail until said fine and costs should be paid. A writ of er-
ror was prayed for and allowed.
Mr. Justice Shiras. * * * We are constrained to sustain the
assignments which complain of the exclusion of testimony offered
to show defendant's general reputation for truth and veracity. It is
not necessary to cite authorities to show that, in criminal prosecu-
tions, the accused will be allowed to call witnesses to show that his
character was such as would make it unlikely that he would be guilty
of the particular crime with which he is charged. And as here the
defendant was charged with a species of the crimen falsi, the rejected
evidence was material and competent. This, indeed, is conceded in
the brief for the government; but it is argued that, as the learned
judge, in overruling the offer of the evidence, observed that the testi-
mony might "become proper later on," he was merely passing on the
order of proof, his discretion in respect to which is not reversible.
It is possible, as suggested, that the judge thought that such evi-
dence should not be offered until it appeared that the defendant had
himself testified. But this would show a misconception of the reason
why the evidence was competent. It was not intended to give weight
to the defendant's personal testimony in the case, but to establish a
general character inconsistent with guilt of the crime with which
he stood charged ; and the evidence was admissible, whether or not
the defendant himself testified. When testimony, competent and ma-
terial, has been offered and erroneously rejected, the error is not
cured by a conjecture that, if offered at a subsequent period in the
trial, the evidence might have been admitted. It should also be observ-
ed, that, when a subsequent offer to the same effect was made, the
judge rejected it without qualification.
There was likewise error in that portion of the charge in which the
judge instructed the jury as to the effect that they should give to the
testimony showing the defendant's good character.
6 SI il condensed and part of opiniou omitted.
Sec. 1) CHARACTER 821
It is proper to give the judge's own language:
"Some testimony has been given you touching the good character of
the defendant. When a man is charged with crime, the courts of the
United States permit this question of good character to be introduced
to go to the jury. The theory, as I view it, is a wise one. If a man,
in the community where he lives, by his incoming and outgoing among
his neighbors, has built up in the years of his life, be they compara-
tively few or many, a character among them for good morals, which
includes the uprightness and excellency of our general citizenship, it
is right that the jury should know that fact. It is of value to them,
in conflicting cases, in determining points in the case; and yet, gen-
tlemen, I have to say to you that evidence of good character is no de-
fense against crime actually proven. If the defendant in this case is
proven guilty of crime charged, any good character borne by him in
his community is no defense. It must not change your verdict; for
the experience of mankind, of all of us, teaches us that men reputed
to be of good moral character in a community — Unfortunately, some-
times, we find they are sadly different from that which they are re-
puted to be, and that they are committers of crime. Yet the good
character goes to the jury with special force wherever the commission
of the crime is doubtful. If your mind hesitates on any point as to the
guilt of this defendant, then you have the right and should consider
the testimony given as to his good character, and it becomes, as I have
suggested, or may be, of great importance in the minds of the jury in
the matters of doubt." * * *
It is impossible, we think, to read the charge, without perceiving
that the leading thought in the mind of the learned judge was that
evidence of good character could only be considered if the rest of the
evidence created a doubt of defendant's guilt. He stated that such
evidence "is of value in conflicting cases,'' and that, if the mind of
the jury "hesitates on any point as to the guilt of the defendant, then
you have the right and should consider the testimony given as to his
good character."
Whatever may have been said in some of the earlier cases, to the
effect that evidence of the good character of the defendant is not to
be considered unless the other evidence leaves the mind in doubt, the ,
decided weight of authority now is that good character, when con-
sidered in connection with the other evidence in the case, may gener-
ate a reasonable doubt. The circumstances may be such that an es-
tablished reputation for good character, if it is relevant to the issue,
would alone create a reasonable doubt, although, without it, the other
evidence would be convincing,
Jupitz v. People, 34 111. 516, was a case where the defendant was in-
dicted for having received goods knowing them to have been stolen,
and his counsel requested the trial judge to instruct the jury that the
evidence of the good character of the defendant for honesty should
822 CIRCUMSTANTIAL EVIDENCE (Ch. 5
have great weight in determining as to his guilt or innocence. This
was qualified by the court by the addition of these words : "If the
iury believe there is any doubt of his guilt." This was held to be er-
ror, and the supreme court of Illinois used the following language:
"The instruction, as asked, may be objectionable, on account of the
epithet 'great' ; but as that was not the ground of the qualification, but
on the ground, as is inferable, that the court did not consider evidence
of good character of any weight except in a doubtful case. The more
modern decisions go to the extent that, in all criminal cases, whether
the case is doubful or not, evidence of good character is admissible
on the part of the prisoner. * * * We can hardly imagine a case
where evidence of a good character was a more important element
of defense than this, and in the language of the instruction was en-
titled to great weight. Proof of uniform good character should raise
a doubt of guilty knowledge, and the prisoner would be entitled to
the benefit of that doubt. Proof of this kind may sometimes be the only
mode by which an innocent man can repel the presumption arising from
the possession of stolen goods. It is not proof of innocence, although
it may be sufficient to raise a doubt of guilt. The court seemed to
think it was entitled to no weight, unless, taking the language used in
its most favorable aspect, there was doubt of his guilt. A strong
prima facie case was made out by the prosecution, but it was not
conclusive. If the court had told the jury that his good character
should be taken into consideration by them, and was entitled to much
weight, a, reasonable doubt of the prisoner's guilt might have been
raised, which would have resulted in his acquittal."
Similar conclusions were reached in Com. v. Leonard, 140 Mass.
473, 4 N. E. 96, 54 Am. Rep. 485 ; Heine v. Com., 91 Pa. 145 ; Rem-
sen v. People, 43 N. Y. 6; People v. Garbutt, 17 Mich. 28, 97 Am.
Dec. 162 ; 1 Whart. Cr. Law, § 636.
We find no errors disclosed by the other assignments.
The judgment of the court below is reversed, and the cause remand-
ed, with directions to set aside the verdict and award a new trial.
Judgment reversed. 6
Mr. Justice Brewer concurs in the judgment. Mr. Justice Brown
dissents.
e That the error of the trial judge in the principal case probably resulted
from a misunderstanding of the charges in some of the earlier cases, when
fudges were in the habit of advising juries more freely on matters of fact, see
State v. Henry, 50 N. O 05 (1S57).
For a further refinement to the effect that "good character may create a
doubt against positive evidence, but only when in the judgment of the jury
character is so good as to raise a doubt as to the truthfulness or correct-
ft the positive evidence." see People v. Goodman, 2S3 111. 414, 119 N. E.
129 (1918), citing People v. Hughson. 154 N. Y. 153, 47 N. E. 1092 (1S97).
Sec. 1) CHARACTER 823
HARPER v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit, 1909. 170 Fed. 385, 95 C. C. A.
555.)
Riner, District Judge. 7 At the October term of the United States
Court for the Northern District of Indian Territory, sitting at Vinita,
the plaintiff in error, hereafter called the defendant, was indicted for
making a false entry in a report to the Comptroller of the Currency,
showing the resources and liabilities of the First National Bank of
Miami, Ind. T. * * *
The fourth error assigned is that the trial court erred in not per-
mitting W. P. Gatewood, a witness for the defendant, to testify to
the moral character of the defendant. The witness was permitted
to testify that he had known defendant for about six years ; that he
knew his reputation for honesty during the time he resided at Vinita,
and that it was good, but that he did not know his reputation for hon-
esty during the time he had resided at Miami. The question which
the court declined to permit him to answer was : "Are you acquainted
with his general reputation in the neighborhood, during the time he
resided here, for morality and sobriety?" Objection was made to
this question, and the objection sustained. Gatewood and three other
witnesses were allowed to testify to the general reputation of the
defendant, in the neighborhood in which he lived, for truthfulness,
veracity and honesty, and, within the rule stated by Greenleaf, vol. 3,
§ 25, "Evidence, when admissible, ought to be restricted to the trait of
character which is in issue; or, as it is elsewhere expressed, ought to
bear some analogy and reference to the nature of the charge; it being
obviously irrelevant and absurd, on a charge of stealing, to inquire
into the prisoner's loyalty ; or, on a trial for treason, to inquire into
his character for honesty in his private dealings" — we think the
court committed no error in ruling out the answer to this ques-
tion. * * *
Judgment affirmed. 8
7 Part of opinion of Riner, District Judge, the concurring opinion of Adams
Circuit Judge, and dissenting opinion of Sanborn, Circuit Judge, are omitted.
s And so in Wistand v. People, 218 111. 323, 75 N. E. 891 (1905). where, on a
prosecution for statutory rape, the defendant sought to prove his good char-
acter for peace.
S24 CIRCUMSTANTIAL EVIDENCE (Cll. 5
PEOPLE v. HINKSMAN.
(Court of Appeals of New York, 190S. 192 N. Y. 421, S5 N. E. 6TG.)
WERNER, J. 9 The defendant appeals from a judgment convicting
him of the crime of murder in the first degree. The charge set forth
in the indictment is that on the 30th day of November, 1905, the
defendant did feloniously, with premeditation and deliberation, shoot
Samuel Hinksman with a shotgun, inflicting wounds from which the
victim died on the following day. * * *
It appears that the defendant had been called as a witness in his
own behalf. He had stated, in some detail, the history of his life,- and
had specifically denied the more serious of the circumstances calcu-
lated to connect him with the shooting of his father. Just at the con-
clusion of his direct examination his counsel had evidently asked him
if he had ever been in any trouble ; for, as the narrative of the record
has it, the defendant testified: "I had a little trouble once. I was
convicted of grand larceny, second degree. That was for stealing
something. That was the only trouble I ever had in my life, and it
was three years ago. Sentence was suspended on me. I have been
a good boy ever since." Upon the bit of testimony just quoted, and
after the defendant had rested his case, the prosecution claimed the
right to give evidence as to the defendant's general reputation. The
defense objected ; but the court sustained the contention of the pros-
ecution, and admitted the evidence. Several of the influential men of
that vicinity testified that the defendant's general reputation was bad,
and this evidence was dwelt upon, as has been stated, with much force
in the address of the district attorney to the jury.
The spur of a strong imagination is hardly necessary to convince the
average person of intelligence that evidence of general bad character,
produced against a defendant charged with the commission of a crime,
can never be helpful to the accused, and, in a case where the oppos-
ing facts are very evenly balanced, or the direct case against him is
weak, such evidence may be the factor which determines the result
against him. In the very nature of things must this be true when
the evidence is purely circumstantial. It may be taken for granted,
therefore, that the evidence tending to establish the defendant's bad
reputation was harmful to him, and the only question to be considered
is whether it was competent. Briefly stated, the contention of the
learned prosecutor is that the defendant made this evidence compe-
tent by voluntarily assuming the character of a witness in his own
behalf. The defendant insists, however, that his character could not
be put in issue until he did it himself; that by becoming a witness
he did not proffer for scrutiny his general character, but merely his
reputation for truthfulness; and that the very scant reference in his
'• Part of opinion of Werner, J., and the dissenting opinion of Gray, J.,
omit
Sec. 1) CHARACTER 82.J
testimony to his conduct subsequent to his conviction of larceny and
prior to the homicide did not open the door to an investigation of his
general character. Stephen, in his treatise on the Law of Evidence,
says that the word "character," when used in the sense in which it is
here employed, means reputation, as distinguished from disposition,
and that, of course, is the general understanding of the profession.
The rule laid down by that learned author upon the subject under dis-
cussion is that "in criminal proceedings the fact that the person j
accused has a good character is deemed to be relevant, but the fact
that he has a bad character is deemed to be irrelevant, 10 unless it is I
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." Stephen's Digest of Ev. (2d Ed.) p. 158.
This short, yet comprehensive, statement embodies the rule as we
believe it to have existed in this state both before and since the law
has made it competent for an accused person to be a witness in his
own behalf. Other learned writers on the law of evidence are cred-
ited, however, with having added to that rule a suggestion which has
given rise to the contention at bar. The rule as stated in Elliott on
Evidence (volume 4, § 2721) is that the prosecution cannot give evi-
dence of a defendant's bad character "unless he has introduced evi-
dence of good character, except where he is a witness, in which case
such evidence is admissible to impeach him, as in the case of other
witnesses." * * *
Logically a defendant who voluntarily testifies in his own behalf oc-
cupies a dual position. He is at once a party and a witness, and is
entitled to the rights and privileges of each. As a party he need not
testify at all. If he deems it prudent to remain silent, no presump-
tion is to be indulged against him. If he prefers to testify, his gen-
eral character is safe. from attack until he puts it in issue by himself
introducing evidence relating to it. But when he assumes the char-
acter of a witness he exposes himself to the legitimate attacks which
rriay be made upon any witness. Other witnesses may be called to
impeach his credibility by showing that his general reputation for
io Willes, J., in Reg. v. Rowton, 10 Cox, 25 (1865): ." * * • It is evidence
strictly relevant to the issue, but such evidence is not admissible upon the
part of the prosecution for the reasons stated by my brother Martin, because
if the prosecution were allowed to go into such evidence we should have the
whole life of the prisoner ripped up, and as has been witnessed in the pro-
ceedings of jurisdictions where such evidence is admissible upon a charge
preferred, you might begin by showing that when a boy at school he had
robbed an orchard and so read the rest of his conduct and the whole of his
life; and the result would be that a man on his trial would be overwhelmed
by prejudice instead of being couvicted on affirmative evidence, which the law
of this country requires. The prosecution is prevented from giving such evi-
dence for reasons rather of policy and humanity than because proof that the
prisoner was a bad character is not relevant to the issue, — it is relevant to
the issue but it is expedient (?) for the sake of letting in all the evidence
which might possibly throw light upon the subject: you might arrive at jus-
tice in one case and you might do injustice in ninety-nine."
S26 CIRCUMSTANTIAL EVIDENCE (Ch. 5
veracity is bad, or he may upon cross-examination be interrogated as
to any specific act or thing which may affect his character and tend to
show that he is not worthy of belief. This latter phase of the well-
known rule is seized upon by the learned district attorney to sustain
the reception of the evidence tending to establish the defendant's gen-
eral bad character. He argues that, if a defendant who testifies in
his own behalf can be subjected to a cross-examination which demol-
ishes his presumptively good character and shows it to be utterly bad,
it is in effect nothing more nor less than attacking his general char-
acter. That may be precisely the effect of a cross-examination which
demonstrates that a defendant's character is bad. The difference is
tmore in the method than in the result. If a man's bad character is
proven by his own admissions of specified acts, a jury will usually
have no difficulty in determining the extent to which his credibility is
impaired. But when the conclusions of a jury depend entirely upon
the opinions of witnesses who are testifying to a defendant's general
reputation based upon the speech of others, and not to any concrete
fact of personal knowledge, the method is, to say the least, far less
reliable, although the result in a particular case may be just the same.
Proof of general reputation by hearsay is one of the exceptions to
the general rule that facts and not conclusions constitute legal evi-
dence. It is one of those unsatisfactory exceptions which is recog-
nized as a makeshift, and is tolerated only because we do not seem to
be able to improve upon it. Much might be written upon the reasons
for this exception, and much more about the considerations which have
led the courts in some other jurisdictions to hold that a defendant who
testifies in a criminal action or proceeding against him may be im-
peached by evidence tending to establish his general bad character.
It could not be done, however, without considerable prolixity, and it is
doubtful whether it would be profitable. We shall content ourselves,
therefore, with a few observations upon the authorities 1X in this state
which are relied upon, respectively, by the district attorney and the
counsel for the defendant in their contentions upon this question.
* * *
We think that evidence of general bad character, which is nothing
but evidence of gener.al reputation, should not be considered compe-
tent to decide the issue whether a defendant who testifies in his own
behalf is worthy of belief, any more than evidence of a reputation for
untruthfulness should be directly decisive of his guilt or innocence.
A man may have the reputation of being a liar, and yet scorn to steal
sheep ; and by the same rule one who cannot resist the temptation to
commit larceny may never lie about it. It is true, of course, that if
in the omitted passage, the court reviewed People v. Webster, L39 n. y.
78 84 N. K. 730 (1893); Brandon v. People, 42 X. Y. 265 (1870); People v.
Giblin, LIB N. v. 196, 21 N. E. 1062, -1 L !:. A. 757 (1889); People v. McCor-
ini-k. 135 X. Y. 663, 32 X. E. 26 (1892); People v. Oasey, 72 N. Y. :;;>:; ns7S);
Adama v. People, 9 Bun, 89 (1876); Burdick v. People, 5s Barb. 51 (1870).
Sec. 1) CHARACTER 827
a man is proven a liar his statement that he did not^commit a par-
ticular crime will be much Jess likely to command belief than it would
if he were reputed to be a truthful man. It may be equally true that
proof of a man's reputation for general depravity may involve his
credibility; but it also involves much more. In addition to under-
mining his credit for veracity, it stamps him as a generally bad man,
who would be much more likely to commit a particular crime than he
whose reputation is good. That is precisely the evil which it was de-
signed to thwart with the rule that a defendant's general reputation
cannot be shown against him until he puts it in issue himself. For
these reasons we must , decline to follow the Cases of Burdick and
Adams, above referred to, in so far as they favor the doctrine that
evidence of a defendant's general bad reputation is competent simply
because he is a witness in his own behalf. * * *
Having concluded that it was error for the trial court to admit the
evidence of the defendant's general bad character under the circum-
stances above stated, we have no hesitation in deciding that the dis-
trict attorney's references to the same were clearly unauthorized and
very prejudicial. * * *
Judgment reversed.
COMMONWEALTH v. MADDOCKS.
(Supreme Judicial Court of Massachusetts, 1910. 207 Mass. 152, 93 N. E. 253.)
Complaint, received and sworn to in the District Court of Eastern
Essex on November 26, 1909, charging the defendant with keeping
and maintaining a tenement in Gloucester used by him for the illegal
sale and the illegal keeping of intoxicating liquors between May 1
and November 26, 1909.
At the trial in the Superior Court before Raymond, J., it appeared
that the defendant was a retail druggist at Gloucester, licensed as a
pharmacist and holding a certificate of fitness, issued under the stat-
ute on the subject, authorizing him to sell intoxicating liquors on
physicians' prescriptions. The premises consisted of a store and a cel-
lar underneath, the store being an ordinary drug store and equipped
as such. * * *
During the trial of the case the defendant introduced the evidence
of several witnesses who testified that the reputation of the defendant
in the community as to his general character was good. John Kar-
cher, one of the witnesses who so testified, was asked upon cross-ex-
amination by the district attorney as to the reputation of the defend-
ant in the community in regard to the sale of intoxicating liquors.
To this question the defendant objected. The judge overruled the ob-
jection and the defendant excepted. The witness then answered, "I
don't know."
S2S CIRCUMSTANTIAL EVIDENCE (Ch. 5
The commonwealth then called to the stand the county treasurer,
David I. Robinson of Gloucester, and asked him the following ques-
tion : "Do you know what is the reputation of the defendant in the
community as to his being a law-abiding person in relation to the liq-
uor law? To this question the defendant objected. The judge over-
ruled the objection and the defendant excepted. The witness then
answered, "I do." The district attorney then asked, "What is it?"
To this question the witness answered, "It is bad." To this question
and answer the defendant also objected. The judge overruled the
objection and the defendant excepted. * * *
Sheldon, J. 12 * * * We cannot say that after the defendant
had put his general reputation in issue, the commonwealth might not
show in reply that his reputation as to being a law-abiding person in
relation to the liquor law was bad, although we intimate no opinion
as to the particular question which was excepted to. The introduc-
tion of such evidence would of course call for great care on the part
of the judge to see that the jury should not use it as evidence of guilt,
but should treat it merely as meeting and nullifying (so far as it might
have* any effect) the evidence of the defendant's good reputation. But
it was not incompetent. It was so held in State v. Knapp, 45 N. H.
148, 157; Balkum v. State, 115 Ala. 117, 22 South. 532, 67 Am. St.
Rep. 19, and State v. Thornhill, 174 Mo. 364, 74 S. W. 832. See the
discussion in 1 Wigmore on Ev. § 59 et seq. The testimony excluded
in Commonwealth v. Nagle, 157 Mass. 555, 32 N. E. 861, was as to
the defendant's habits and course of action, not as to his reputation
itself. * * *
Exceptions sustained (on other points). 13
GREER v. UNITED STATES.
(Supreme Court of the United States, 1918. 245 U. S. 559, 38 Sup. Ct. 209,
62 L. Ed. 469.)
Mr. Justice Holmes delivered the opinion of the Court.
The petitioner was tried for introducing whiskey from without the
State into that part of Oklahoma that formerly was within the Indian
Territory. He was convicted and sentenced to fine and imprison-
ment. Material error at the trial is alleged because the Court re-
fused to instruct the jury that the defendant was presumed to be a
person of good character, and that the supposed presumption should
be considered as evidence in favor of the accused, with some further
amplifications not necessary to be repeated. The court did instruct
the jury that the defendant was presumed to be innocent of the charge
>-■ Statement condensed nn<] part of opinion omitted.
general Question of the righl of the prosecution to rebut evidence
of g< ira< ter, sec Reg. v. Bowton, 10 Cox, C'r. Oas. 25 (1865).
Sec. 1) cnAKACTEB 829
until his guilt was established beyond a reasonable doubt, and that the
presumption followed him throughout the trial until so overcome.
The Circuit Court of Appeals sustained the Court below. 240 Fed.
320, 153 C. C. A. 246. This judgment was in accordance with a care-
fully reasoned earlier decision in the same circuit, Price v. United
States, 218 Fed. 149, 132 C. C. A. 1, L. R. A. 1915D, 1070, with an
acute statement in United States v. Smith (D. C.) 217 Fed. 839, and
with numerous state cases and text books. But as other Circuit
Courts of Appeal had taken a different view, Mullen v. United States,
106 Fed. 892, 46 C. C. A. 22 ; Garst v. United States, 180 Fed. 339,
344^ 345, 103 C. C. A. 469, also taken by other cases and text books,
it becomes necessary for this Court to settle the doubt.
Obviously the character of the defendant was a matter of fact,
which, if investigated, might turn out either way. It is not established
as matter of law that all persons indicted are men of good character.
If it were a fact regarded as necessarily material to the main issues it
would be itself issuable,. and the Government would be entitled to put
in evidence whether the prisoner did so or not. As the Government
cannot put in evidence except to answer evidence introduced by the
defence the natural inference is that the prisoner is allowed to try to
prove a good character for what it may be worth, but that the choice
whether to raise that issue rests with him. The rule that if he prefers
not to go into the matter the Government cannot argue from it would
be meaningless if there were a presumption in his favor that could not
be attacked. For the failure to put on witnesses, instead of suggest-
ing unfavorable comment, would only show the astuteness of the pris-
oner's counsel. The meaning must be that character is not an issue
in the case unless the prisoner chooses to make it one ; otherwise he
would be foolish to open the door to contradiction by going into evi-
dence when without it good character would be incontrovertibly pre-
sumed. Addison v. People, 193 111. 405, 419, 62 N. E. 235.
Our reasoning is confirmed by the fact that the right to introduce
evidence of good character seems formerly to have been regarded as
a favor to prisoners, McNally, Evidence, 320, which sufficiently im-
plies that good character was not presumed. In reason it should not
be. A presumption upon a matter of fact, when it is not merely a dis-
guise for some other principle, means that common experience shows
the fact to be so generally true that courts may notice the truth.
Whatever the scope of the presumption that a man is innocent of the
specific crime charged, it cannot be said that by common experience
the character of most people indicted by a grand jury is good.
It is argued that the Court was bound by the rules of evidence as
they stood in 1789. That those rules would not be conclusive is suf-
ficiently shown by Rosen v. United States (January 7, 1918) 245 U. S.
467, 38 Sup. Ct. 148, 62 L. Ed. 406. But it is safe to believe that the
supposed presumption is of later date, of American origin, and comes
S30 CIRCUMSTANTIAL EVIDENCE (Cll. 5
from overlooking the distinction between this and the presumption of
innocence and from other causes not necessary to detail.
Judgment affirmed.
Mr. Justice McKenna dissents.
STATE v. POTTER.
(Supreme Court of Kansas, 1874. 13 Kan. 414.)
Brewer, J. 14 The appellant was convicted in the district court of
Atchison county of the crime of murder in the second degree, and
sentenced to the penitentiary for ten years. From this he has appeal-
ed to this court, and alleges numerous errors in the proceedings of
that court. And, first, he complains that that court erred in overruling
a motion to quash the information. We do not think the objections
made to the information are well founded, and hence see no error in
the rulings on the motion to quash. Again, he insists that the court
erred in allowing the state to introduce evidence of the character of
the deceased as a quiet and peaceable man. It appears that the de-
ceased was killed in an affray; that this was the second quarrel upon
the same afternoon between the deceased and defendant, others par-
ticipating. The first quarrel took place shortly after the parties left
Atchison to go to their respective homes, each in his own wagon, and
with two companions. No serious injury was done to either of the
parties at this time. At its close the deceased drove ahead with his
wagon, and the parties lost sight of each other. After driving some
miles, the deceased stopped beside a field where one of his sons was at
work, and while there the other wagon, with the defendant, came along.
The quarrel was resumed, and in it the deceased was struck on the
head and elsewhere with a piece of a rail or club, and so injured that
he died shortly thereafter.
On the trial, and before closing their case, the prosecution was
permitted, over objection, to ask witnesses, who had testified that
they knew the deceased, this question: "State if you knew his gen-
eral reputation for being a peaceable, quiet, and law-abiding citizen;"
and the witnesses testified that he was a peaceable, quiet, and law-
abiding man. No attack was made by defendant at any time during
the trial on the character of the deceased, and no attempt to show that
he was a quarrelsome or turbulent man. The question, then, is fairly
presented whether the prosecution, on a trial for murder, may, in the
first instance, and as a part of their case, show the character and repu-
tation of the deceased. We do not understand counsel for the state as
claiming that such testimony is admissible in all cases, but only in cases
where there is a doubt as to whether the killing was done in self-
defense, and where such testimony may serve to explain the conduct of
i* Statement and part of opinion omitted.
Sec. 1) CHARACTER Sol
the deceased, and is therefore fairly a part of the res gestae. In such
cases it is said that the authorities hold that the defendant may show
the bad character and reputation of the deceased as a turbulent, quar-
relsome man. See, among other authorities, Franklin v. State, 29
Ala. 14; State v. Keene, 50 Mo. 357; Wise v. State, 2 Kan. *429,
85 Am. Dec. 595 ; People v. Murray, 10 Cal. 310. And if the defend-
ant may show that the deceased was a known quarrelsome, dangerous
man, why may not the state show that he was a known peaceable,
quiet citizen? The argument is not good. The books are full of par-
allel cases. The accused may, in some cases, show his own good char
acter. The state can never, in the first instance, show his bad char-
acter. A party can never offer evidence to support a witness' credi-
bility until it is attacked. The reasons for these rules are obvious.
Such testimony tends to distract the minds of the jury from the prin-
cipal question, and should only be admitted when absolutely essential
to the discovery of the truth. Again, the law presumes that a wit-
ness is honest,,>that a defendant has a good character, and that a party
killed was a quiet and peaceable citizen, except so far as the contrary
appears from the testimony in the case ; and this presumption ren-
ders it unnecessary to offer any evidence in support thereof. No au-
thorities have been cited sustaining the admission of such testimony,
and the following are in point against it : Ben v. State, 37 Ala. 103 ;
Chase v. State, 46 Miss. 707; Pound v. State, 43 Ga. 128. For the
same reasons the court erred in permitting the state to offer evidence
of the character and reputation of Polk Keeley, a son of the deceased,
who took part in the last affray. * * *
Judgment reversed. 15
HARRISON v. HARRISON.
(Supreme Court of Vermont, 1871. 43 Vt. 417.)
REdField, J. 10 The case shows that the defendant's father was
the owner of the freehold on which was situate the aqueduct. The
father "had forbidden the plaintiff's entering on the land where it
was," and "had directed the defendant to watch the aqueduct and
see that no one interfered with it." The defendant was a minor son,
in the service of his father, on the premises. The defendant went to
the boundary of the land where the aqueduct was, and found the plain-
tiff about to enter upon the land, on his way to the aqueduct, and
about 22V2 feet from it. Defendant forbid the plaintiff's going upon
the land, but he persisted and sprang over the fence, and approached
the defendant in a threatening manner, and the defendant thereupon
us And so in State v. Reed. 250 Mo. 379, 157 S. W. 316 (1913), where a num-
ber of the eases are collected.
is Statement and part of opinion omitted.
832 CIRCUMSTANTIAL EVIDENCE (Cll. 5
struck him several blows, which he claimed were "in necessary de-
fense of himself, the land, and the aqueduct." * * *
The defendant offered to prove that "plaintiff was reputed to be,
and was in fact, a quarrelsome man, with a violent and uncontrollable
temper, and this was known to the defendant at the time ;" which was
excluded by the court. The defendant must be judged and justified or
condemned, in the light of the circumstances that surrounded him;
not by the secret motive or intent of the plaintiff, but by the apparent
purpose; not by the actual, but apparent danger. If a man presents a
pistol to another and threatens his life, the assailed party is not
required to wait till he is dead, to test the certainty that the man in-
tended to kill him, but he would be justified in disabling his assailant
at once, though it should finally prove that the pistol was unloaded and
murder not intended. So if the assailant is known to the assailed to
be a practiced pugilist and a man of violence, the kind and degree of
resistance must be measured, or at least modified, by the apparent
danger with which the party is threatened. And we think that, when
the "plaintiff sprang over the fence and went toward the defendant
in a threatening manner," the degree of force, whether it be reason-
able or unreasonable, which defendant might employ, would depend
measurably upon the known character, in that respect, of the plaintiff;
whether he be a "man of war from his youth," or of peace ; whether he
had the temper, the will and ability, to inflict sudden and great bodily
injury, and the danger was imminent, or whether he be known to the
defendant as a man of mild temper and a stranger to violence. We
think the evidence should have been received, and that the apparent
danger which threatened the defendant would be somewhat affected
by it, and the degree of force which defendant might lawfully use
should be measured or modified by it.
The judgment of the county court is reversed, and the cause re-
manded. 17
17 And so in McQuiggan v. Ladd, 79 Vt. 90, 64 Atl. 503, 14 L. R. A. (N. S.)
6S9 (1906) annotated.
Compare Davenport v. Silvey, 265 Mo. 543, 178 S. W. 168, L,. R. A. 1916A,
1240 (1915), apparently sanctioning the use of plaintiff's bad character for
violence on the issue of self-defense, both to show the reasonableness of de-
fendant's apprehension, and the probable agression by plaintiff.
For tbe use of general reputation to prove notice or knowledge of a fact,
erach as the Incompetency of an employe, >i pee Monahan v. City of Worcester,
L50 Mass. 439. 23 X. EX 22S, 15 Am. St. Rep. 226 (1S90) ; Park v. New York
Cent, & H. R. R. Co., 155 N. Y. 215, 49 N. E. 674, 63 Am. St. Rep. 663 (1892);
roltimore & O. R. Co. v. Henthorne, 73 Fed. 634, 19 C. C. A. 623 (1896).
Sec. 1) CHARACTER 83.°>
WOODS v. PEOPLE.
(Court of Appeals of New York, 1874. 55 N. Y. 515, 14 Ara. Rep. 309.)
Error to the General Term of the Supreme Court in the First Judi-
cial Department, affirming judgment of the Court of General Ses-
sions of the Peace in and for the city and county of New York, en-
tered upon a verdict convicting plaintiff in error of the crime of
rape. * * *
GrovEr, J. 18 Upon the trial the prisoner offered to prove by seven
witnesses that the complainant was in the habit of receiving men there
for the purpose of promiscuous intercourse, and for liquor especially.
This evidence was objected to by the prosecution and rejected by the
court, to which an exception was taken by the counsel for the prisoner.
The evidence previously given shows that the place intended by the
offer where she was in the habit of receiving men for the purpose
specified was where she dwelt, known as "The Ranch," and that the
liquor especially was intended to include the practice of the men so
going there of taking liquor with them, of which the complainant par-
took to great excess during such visits.
Upon the assumption that the plaintiff in error had intercourse with
the complainant, as to which the testimony was conflicting, the further
issue was whether he ravished her by force, or whether she assented
to such intercourse. Upon this issue all the authorities concur in hold-
ing that evidence showing that the character of the prosecutrix for
chastity was bad is competent, and this for the reason that it is more
probable that an unchaste woman assented to such intercourse than
one of strict virtue. The evidence is received upon this ground, and
not for the purpose of impeaching the general credibility of the wit-
ness. Evidence showing that the prosecutrix has on a previous oc-
casion had connection with the accused is competent, and this for the
reason that having done this shows a probability that she did not re-
sist but consented to that charged in the indictment. In Rex v. Bar-
ker, 14 Eng. Com. Law, 467, it was held that the prosecutrix might
be asked, with a view to contradict her, whether she was not on a
specified day after the alleged offense walking in High street, Ox-
ford, looking out for men, and the further question whether upon an-
other specified day after the alleged offense she was not walking in
High street with a woman reputed to be a common prostitute. This
evidence was competent, not for the purpose of impeaching the gen-
eral credibility of the witness, but proper for the consideration of the
jury upon the question whether she assented to the intercourse with
the prisoner.
Under these authorities it is entirely clear that the evidence offered
by the accused was competent. The number of witnesses by whom
is Statement condensed.
Hint.Ev— 53
834 CIRCUMSTANTIAL EVIDENCE (Ch. 5
he proposed to prove the fact was immaterial. It was competent for
him to prove, by any one knowing the fact, that the prosecutrix was in
the habit of receiving men at her dwelling for promiscuous intercourse
with them, and the weight of such testimony was in no respect im-
paired by the further fact that the men so received took liquor with
them on these occasions, of which they and she partook to great ex-
cess. The testimony offered, if true, would have shown the com-
plainant to be a common prostitute ; proof more satisfactory than
that of a bad general reputation for chastity. The trial court, as well
as the General Term, regarded the offer as nothing more than that
of proof of some particular acts of lewdness. But it was much more.
It was an offer to show by direct evidence not only this, but that the
complainant was a common prostitute and in the habit of plying her
vocation at the place where she dwelt. Whether evidence of particu-
lar acts of criminality by the prosecutrix is competent is a question
upon which the authorities differ, but one not necessary to deter-
mine in this case. In People v. Abbot, 19 Wend. 192, such proof was
held to be admissible. In People v. Jackson, 3 Parker's Cr. R. 397,
it was held incompetent. The authorities are all cited and ably ex-
amined in the opinions in these cases by Cowen, J., in the former, and
by S. B. Strong, J., in the latter. See also Roscoe Crim. Ev. 810.
When a determination of this question by this court shall be neces-
sary to a disposition of the case before it, it will be considered and
decided.
The judgment appealed from must be reversed and a new trial or-
dered.
All concur.
Judgment reversed. 19
PEOPLE v. RODAWALD.
(Court of Appeals of New York, 1904. 177 N. Y. 408, 70 N. E. 1.)
Vann, J- 20 The homicide which is the subject of this appeal was
committed in April, 1903. The defendant was indicted in May, con-
victed in June, and appealed to this court in July of the same
year. * * *
According to the evidence for the defendant, although he may have
armed himself without adequate cause, he had given up the contro-
versy over the wood, and had started for home, when he was attacked*
by the deceased with a dangerous weapon, and the revolver was fired
in lawful defense of his person, or went off accidentally. A fearful
..Mio of the courts appear to admit such evidence to discredit the prose-
qui, lg W j t; :! as to prove consent. O'BleniS v. State, -I < NT. J. Law,
279
Part of opinion of Vann, J., and the dissenting opinion of O'Brien, J.,
omit
Sec. 1) cnARACTER 835
mistake may have been made by the jury, yet justice cannot be ad-
ministered without running that risk in almost every murder case that
is tried. * * *
The defendant offered in evidence certified copies of the following
records: A judgment rendered by a court of special sessions held
in Montgomery county on the 14th of January, 1889, convicting the
deceased of petit larceny upon his plea of guilty, and sentencing him
to the State Industrial School at the city of Rochester. A judgment
of the county court of Cattaraugus county convicting the deceased,
also upon a plea of guilty, of assault in the first degree, and sen-
tencing him to imprisonment in State Prison for four years. * * *
No offer was made to show that the defendant had heard that the
deceased had been convicted of any of these offenses. All this evi-
dence was excluded upon the objection that it was not the proper meth-
od of proving the character of the deceased. * * *
The general character of the deceased was immaterial, for the
worst man has the right to live, the same as the best, and no one may
attack another because his general reputation is bad. The law pro-
tects every one from unlawful violence, regardless of his character.
Upon a trial for murder, however, the accused, after giving evidence
tending to show that he acted in self-defense, may prove that the gen-
eral reputation of the deceased was that of a quarrelsome, vindictive,
or violent man, and that such reputation had come to his knowledge
prior to the homicide. People v. Gaimari, 176 N. Y. 84, 95, 68 N. E.
112; People v. Lamb, *41 N. Y. 360, 366; Abbott v. People, 86 X. Y.
460 ; Eggler v. People, 56 N. Y. 642 ; Wharton's Criminal Law [2d
Ed.] § 606; Wharton's Criminal Evidence [9th Ed.] § 69; Under-
bill's Criminal Evidence, § 324. Such evidence is not received to show
that the deceased was the aggressor, for, if competent for that pur-
pose, similar evidence could be given as to the reputation of the de-
fendant, as bearing on the probability that he was the aggressor. It
is competent "only in cases where the killing took place under circum-
stances that afforded the slayer reasonable grounds to believe himself
in peril, and then solely for the purpose of illustrating to the jury the
motive which actuated him." People v. Lamb, *41 N. Y. 376. Fear
founded on fact tends to rebut the presumption of malice.
The character of the deceased with reference to violence, when
known to the accused, enables him to judge of the danger, and aids the
jury in deciding whether he acted in good faith, and upon the hon-
est belief that his life was in peril. It shows the state of his mind
as to the necessity of defending himself. It bears upon the question
whether, in the language of the Penal Code, "there is reasonable
ground to apprehend a design on the part of the person slain * * *
to do some great personal injury to the slayer * * * and there is
imminent danger of such design being accomplished." Section 205.
When self-defense is an issue, threats of the deceased, even if un-
known to the defendant, are admissible, as they tend to show the state
83G CIRCUMSTANTIAL EVIDENCE (Ch. 5
of mind of the deceased, and that he was the aggressor. Stokes v.
People, 53 X. Y. 164, 174, 13 Am. Rep. 492; People v. Taylor, 177
X. Y. 237, 69 N. E. 534. Evidence of general reputation for violence,
however, is received, not to show the state of mind of the deceased,
but of the accused — not to show who was in fact the aggressor, but
whether the defendant had reasonable ground to believe that he was
in danger of great personal injury. Hence it is obvious that, what-
ever the reputation of the deceased for violence may be, it can have
no bearing on what the defendant apprehended, unless he knew it. If
he knew that the deceased was reputed to be violent, it might raise in
his mind a fear of danger, but not otherwise. We think the evidence
of previous convictions was incompetent, because the defendant knew
nothing about them, or about the nature of the offenses, so far as ap-
pears.
The evidence, moreover, was incompetent for another reason. The
offer was not to prove the general reputation of the deceased for
violence, but to show specific acts of which he had been guilty, not
toward the defendant, or to his knowledge, but toward third persons,
or their property. The rule is well settled that this is improper, not
only because character is never established by proof of individual acts,
but because each specific act shown would create a new issue. Peo-
ple v. Gaimari, 176 N. Y. 84, 95, 6S N. E. 112; People v. Druse, 103
X. Y. 655, 8 N. E. 733 ; Thomas v. People, 67 N. Y. 218, 225 ; Eggler
v. People, 56 X. Y. 642 ; People v. Lamb, *41 N. Y. 360, 366. * * *
Judgment affirmed. 21
PEOPLE v. LAMAR.
(Supreme Court of California, 1906. 14S Cal. 5G4, 83 Pac. 993.)
Lorigan, J. 22 The justices of the District Court of Appeal for the
Second District, before whom this appeal was originally pending, be-
ing unable to agree on a judgment therein, the matter has been trans-
ferred to this court for disposition. The defendant was prosecuted
for murder, convicted of manslaughter, and sentenced to imprison-
ment in the state prison for a term of 10 years. . Upon the trial the kill-
ing by defendant was admitted, and he sought to justify it on the
ground that it was clone in necessary self-defense. * * *
Xeither can we accord with the further contention of respondent
that upon no principle of law was the evidence admissible. On the
contrary, under the circumstances of the case as presented to the jury,
we think that the offer to show that the general reputation of deceased
was that of a quarrelsome, violent, dangerous man when intoxicated
21 See, also, State v. Barrett, 240 Mo. 161, 144 S. W. 485 (1912), approving
in, . !i.,n limiting the bad character of the deceased to questions of rea-
e apprehension <>n the part, of the defendant.
*- I'ai i omitted.
Sec. 1) CHARACTER 837
was both proper and pertinent. We say, under the circumstances of
the case, because it is undoubtedly true that, as an abstract proposition,
the good or bad character of the deceased cannot be taken into consid-
eration as an element influencing the jury in determining the guilt of a
defendant. All men, independent of their character or reputation, are
under the equal protection of the law, and it in no degree excuses or
palliates the taking of human life that the person slain was of bad
character or reputation ; the offense is as great whether the life ma-
liciously taken be that of a man of bad or of good character. But,
while the general rule is that evidence of the bad reputation of de-
ceased for peace and quiet cannot be given in evidence, still this rule
has its exceptions applicable to cases where the facts and circumstances
surrounding them are peculiar. Such an exception applies in cases of
homicide where the plea of self-defense is interposed, and the evidence
before the jury leaves itin doubt whether the deceased was the aggres-
sor, or where the circumstances attending the homicide render it doubt-
ful or equivocal whether the defendant was justified in believing himself
in imminent danger at the hands of deceased. The conflicting evidence
in the case at bar brought the case within the exception stated, as
presenting a situation where the sufficiency of the plea of self-defense,
made by the defendant, in the essential elements necessary to constitute
it, was enveloped in doubt.
It was early laid down as the rule in this state, that under such
circumstances, evidence of the reputation of the deceased for violence
is admissible. In People v. Murray, 10 Cal. 310, this court says : "The
other point is, the exclusion of evidence of the character of the de-
ceased for turbulence, recklessness, and violence. The rule is well
settled that the reputation of the deceased cannot be given in evi-
dence, unless, at the least, the circumstances of the case raise a doubt
in regard to the question whether the prisoner acted in self-defense.
It is no excuse for a murder that the person murdered was a bad man ;
but it has been held that the reputation of the deceased may some-
times be given in proof to show that the defendant was justified in
believing himself in danger, when the circumstances of the contest are
equivocal." The case of People v. Anderson, 39 Cal. 704, also con-
firms this doctrine. These cases lay down the broad rule that in all
cases of homicide, where the other evidence introduced raises a doubt
whether defendant acted in self-defense, evidence of the reputation
of the deceased is admissible, and this rule applies as to every essen-
tial issue in the case upon which that plea is founded. It is always a
vital issue before the jury, when such a plea is interposed, as to who
was the aggressor in the contest. In the case at bar diis issue, under
the evidence, was involved in doubt, and any fact which would, under
Mich circumstances, serve to illustrate who was the assailant in the
encounter, where the death of one of the parties ensued, would be ad-
missible. In such equivocal condition of the evidence the reputation
of the deceased as a violent, turbulent, dangerous man would be a le-
§38 CIRCUMSTANTIAL EVIDENCE (Ch. 5
gitimate subject of inquiry, illustrating the animus with which he en-
countered the defendant. It would be a circumstance immediately
connected with the quarrel tending to illustrate the true intent or mo-
tive which characterized the conduct of deceased therein, to be taken
into consideration by the jury, in connection with the other facts and
circumstances in the case, in determining who was the aggressor in the
fatal contest.
It is the rule in this state that threats of hostile intention made by a
deceased, whether communicated or uncommunicated, are admissible
evidence for the said purpose when the evidence is equivocal. People
v. Scoggins, 37 Cal. 686; People v. Travis, 56 Cal. 251; People v.
Tamkin, 62 Cal. 468 ; People v. Thomson, 92 Cal. 506, 28 Pac. 589.
The philosophy which supports this rule as to the admissibility of evi-
dence of such threats, where it is otherwise in doubt from the evidence
who was the assailant, is that it is more probable that one who has
made threats of hostile intention towards another would, when op-
portunity permits, attempt to carry such threats into execution and
become the assailant, than would one who has made no such threats,
or declared no such intention. So, too, with reference to the admis-
sibility of evidence of the reputation of deceased as being a violent,
turbulent, dangerous man, such proof, when the evidence as to who was
the assailant is in doubt, for a similar philosophic reason should be
permitted ; it being more probable that one bearing such a reputation
would precipitate a deadly contest than would one having no such
reputation. Hence we think the rule should be that whenever the cir-
cumstances of a case permit of the admission of evidence of threats
made by the deceased against the defendant, either communicated or
uncommunicated, evidence of the reputation of the deceased as be-
ing a violent, quarrelsome, dangerous man, either known or unknown
to the defendant, is equally admissible, the consideration of the jury
to be limited by proper instructions of the court, where the reputation
is unknown to defendant, to the same extent that the law limits the
consideration by them of uncommunicated threats — to the question
solely as to who was the assailant in the fatal encounter. The rule as
to such limitation when applied to uncommunicated threats is declared
in People v. Scoggins, 37 Cal. 686. * * *
Judgment reversed.
Sec. 1) CHARACTER 839
STOW v. CONVERSE.
(Supreme Court of Errors of Connecticut, 1820. 3 Conn. 325, 8 Am. Dec. 189.)
This was an action on the case for the publication of a libel im-
puting misconduct to the plaintiff in his office of tax collector. The
defendant attempted to justify the imputation as true.
The plaintiff, in order to rebut the proof introduced on the part of
the defendant to justify those parts of the publication relating to the
plaintiff's conduct as collector and bank director, offered proof that the
plaintiff had ever sustained the character of an honest man ; to which
die defendant objected; but the judge decided, that it was admis-
sible, and permitted it to go to the jury.
The jury having returned a verdict for the plaintiff, the defendant
moved for a new trial, on the ground that the several questions with re-
gard to the admission of evidence were erroneously decided, and that
the charge was incorrect. This motion the judge reserved. 28
Hosmer, C. J. * * * There remains to be considered two ob-
jections, the order of which I shall invert. To rebut the proof intro-
duced on the part of the defendant, adduced to establish the truth of
his charges against the plaintiff's conduct as collector of the revenue,
and bank director, evidence was admitted on the part of the plaintiff,
to show that he had ever sustained the character of an honest man.
The matter in issue here was conduct, not character. The charge 1
on the plaintiff was that of having exacted money in violation of his
official duty ; and to this point alone should the testimony have been,
received. There is no pretext for the assertion, that such evidence
was ever before admitted. The decisions in Westminster-Hall, in the
neighboring states, and in our own state, all harmonize on this sub-
ject. "In ordinary cases, where the defendant's character is not called)
in question, otherwise than by charging him with fraud, or misconduct,
it is not admissible to produce any proof to support or impeach his '
character." Swift's Ev. 140. And as the plaintiff derives no support
from adjudged cases, as little is derivable from principle. It is not
only in contravention of the fundamental rule, that evidence shall be
confined to the issue, to admit such testimony ; but it would be infinite-
ly dangerous to' the administration of justice. Instead of meeting a
charge of misconduct, by testimony evincive of not having miscon-
ducted, general character would become the principle evidence in most
cases ; and he who could throng the court with witnesses to establish
his reputation in general, would shelter himself from the wrongs he
had perpetrated. In criminal cases, by way of exception, the prisoner *
is permitted to adduce his general character, in opposition to a specific \
charge. But the rule has not been, and ought not to be, extended fur- I
ther.
atement of facts condensed and part of opinion omitted.
S10 CIRCUMSTANTIAL EVIDENCE (Ch. 5
Had the plaintiff offered general character in evidence, on the points
on which the charges were made against him, the long practice of our
courts would have sanctioned the admission of such testimony to en-
hance damages ; but it would not have been received for any other
purpose. * * *
New trial granted. 24
HARRIS v. NEAL.
(Supreme Court of Michigan, 190S. 153 Mich. 57, 116 N. W. 535.)
Carpenter, J. 25 Plaintiff alleges that she was assaulted and raped
by defendant. She brought this suit to recover compensation. Her
testimony supported her claim. Defendant denied having had any
intercourse with plaintiff, and he introduced testimony tending to
prove an alibi. The issue was submitted to a jury, who rendered a
verdict in plaintiff's favor. Defendant seeks a reversal. Defendant
was permitted to introduce testimony tending to prove that plaintiff
had a bad reputation for chastity. The trial court held that this testi-
mony could be used only for the purpose of mitigating damages. De-
fendant contends that this was error; that the testimony was "ma-
terial as bearing upon the probability of plaintiff's testimony." In the
interest of clearness, we think it proper for us to distinguish the ques-
tion raised by defendant's contention from certain other questions
which often arise. The question is different from the one which
arises when a female witness upon cross-examination, for the purpose
of affecting her credibility, is asked questions imputing lack of chas-
tity. While the law in such cases is not thoroughly settled, this much
may be safely stated: That the trial court has authority to exclude
such testimony (Knickerbocker v. Worthing, 138 Mich. 224, 101 N. W.
540), and that the answers of the witness are conclusive.
The question before us is also to be distinguished from the question
which arises when it is sought to impair the credibility of a witness
by proof of reputation. In such a case the proof of reputation is con-
fined to reputation for veracity. Leonard v. Pope, 27 Mich. 145 :
People v. Abbott, 97 Mich. 488, 56 N. W. 862, 37 Am. St. Rep. 360.
The principles governing the admissibility of testimony in the two
classes of cases above mentioned have no application to the question
before us, and, if they had, they would not sustain defendant's conten-
tion. The rule invoked by defendant's counsel is a different rule. He
2< And so in McKane v. Howard, 202 N. Y. 181, 95 N. E. 642, Ann. Cas
1912D, 960 (1911), where In an action for breach of promise of marriage the
plaintiff Bought to prove her good character to rebut the defense of immoral
conduct.
pare Provis v. Reed, 5 Bingham, 135 (1829), where the court admitted
the good character of a deceased attesting witness to rebut an
Imputation of fraud on his part.
so Part of opinion omitted.
SeC.l) CHARACTER 841
invokes the rule applied by this court in People v. Ryno, 148 Mich.
137, 111 N. W. 740. That was a criminal case wherein respondent
was convicted of rape. There we held that "the bad reputation of a
prosecuting witness above the age of consent for chastity prior to
the date of the offense charged" was admissible as tending to prove
that the intercourse may have been had by consent, and we reversed
the judgment because this rule was violated by the trial court. The
rule laid down in People v. Ryno would be applicable if the case at
bar were a criminal case. It, however, is not a criminal case. It is a
civil case, and this court has held that that rule is inapplicable to
civil cases. Adams v. Elseffer, 132 Mich. 100, 92 N. W. 772; Knick-
erbocker v. Worthing, supra. Adams v. Elseffer was a suit brought by
the employer Adams against his employe Elseffer to recover moneys
alleged to have been misappropriated. As bearing upon the probability
of innocence, defendant was permitted to introduce proof of good
character. This court held such testimony inadmissible, saying : "The
correct rule according to the great weight of authority is that in civil
actions the character of a party to the action may become the subject
of proof in case, and only in case, it is involved in the issue. And we
think the character is involved in the issue only in the cases in which
either the right of recovery or the extent of recovery is affected by
the character of either the plaintiff or the defendant." In Knicker-
bocker v. Worthing we applied the same principles, and there we held
that defendant, who in a civil case was charged with committing adul-
tery, could not introduce evidence of his good character for chastity.
It may be said that those cases are to be distinguished from this be-
cause there the question related to the proof of character ; here to the
proof of reputation. This distinction is not tenable. The ordinary
way of proving character, indeed, according to the weight of authority
(Wigmore on Evidence, § 1983 ; People v. McLean, 71 Mich. 309, 38
N. W. 917, 15 Am. St. Rep. 263) the only way of proving character,
is to prove reputation. And the language of our opinion in Adams v.
Elseffer very clearly indicates that proof of reputation as well as proof
of character is inadmissible. Indeed, 1 think it may be said that the
only sound argument which could be advanced for admitting testimony
of reputation in such cases is that reputation furnishes evidence of
character, and therefore the decision that proof of character is inad-
missible is also a decision that proof of reputation is inadmissible.
We conclude that proof of reputation was not admissible as bearing
upon the probability of plaintiff's testimony, and it follows that, though
admitted for another purpose, it could not be legitimately used for that
purpose. The complaint under consideration discloses no error. * * * '
Judgment affirmed. 26
2 6 And so in a civil action for assault the defendant's good character for
peace is not admissible. Vawter v. Hultz, 112 Mo. 633, 20 S. W. GS9 (1S92> ;
Coruth v. Jones, 77 Vt 441, 60 All. S14 (1005).
But see Hein v. Iloldridge, 78 Minn. 468, 81 N. W. 522 (1900), making an
842 CIRCUMSTANTIAL EVIDENCE (Cll. 5
CHASE v. MAINE CENT. R. CO.
(Supreme Judicial Court of Maine, 1885. 77 Me. 62, 52 Am. Rep. 744.)
PETERS, C. J. 27 The intestate's sleigh collided with a train at a
railroad crossing. He thereby received an injury and very soon aft-
erwards died. He never was conscious enough after the injury to
tell how the accident happened. No one was with him at the time.
Xo one saw him at the moment of the collision. As evidence that he
could not have been guilty of any negligence which contributed to
the accident, witnesses who had been his neighbors for some time
were permitted to testify to their opinion of his general character for
carefulness. We think this was overstepping the limit allowed to
collateral evidence in this State. We dare not abide by it. Our be-
lief is that such a rule would be fraught with much more evil than
good.
It was said in Eaton v. Telegraph Co., 68 Me. 63, 67, that "the
best authorities clearly sustain the doctrine that the fact of a person
having once or many times in his life done a particular act in a par-
ticular way, does not prove that he has done the same thing in the
same way upon another and different occasion." See cases there
cited. If in civil cases a person's character proves carefulness in one
instance, why not in all instances ? Where and how can a true line
of distinction be drawn? If by such proof a plaintiff can be shown to
have been careful in one case, why not by the same mode of proof
show that a person acted carefully or carelessly in any case — in all
cases? In many litigations, under such a test, there would arise a
wager of character which would as unfairly settle the dispute as did
formerly the wager of battle. If the intestate's general character for
care be in issue, why not that of the engineer and of every man con-
cerned in the management of the train? If a man who is customarily
careful were always so, there would be reason for admitting the evi-
dence. But the issue is, whether the intestate was careful in this par-
ticular instance,— a fact to be, either directly or circumstantially, af-
firmatively proved. The objection to such a method of proof is aug-
mented by the fact that the testimony consisted of merely the opinions
of neighbors, — one generality proving another. But upon what tests
or what definition of care are their opinions grounded? The ques-
tion was not whether the intestate managed his farm, or his shop, or
exception In favor of the defendant's character for chastity in an action
linsl him for (he seduction of the plaintiff's daughter.
also, Rasmusson v. North Coasl Fire Ins. Co., 83 Wash. 5G9, 145 Tac.
610, L. R. A. 19150, 117'.) (1915), making an exception where the action In-
volves B Chai Of fraud agalnsl a person since deceased. Contra: Great
We tern Life Ins. Co. v. Sparks, 38 OkL 395, 132 1'ac 1092, 19 L. R. A. (N.
8.) 724 (1913) annotated. See, also, Wilson Lumber & Milling Co. v. Atkin-
son, 162 N. 0. 298, 78 S. B. 212, 19 L. i:. A. (N. S.) 733 (1913).
27 statemenl and part of opinion omitted.
Sec. 1) CHARACTER 843
his horses, carefully, but whether he used due care in attempting to
cross a railroad track at the very moment when a regular train was
due at the crossing. The law imperatively demands that a traveler
look and listen before crossing if there is any opportunity to do so.
What did these farmer witnesses know about the intestate's habitual
care in that respect. It is not a ground for the admission of this evi-
dence that the plaintiff can produce no other. It is neither of pri-
mary or secondary importance, — it is not evidence at all. 1 Greenl.
Ev. § 84.
The question is not a new one in this court. The sole question
considered in the case of Scott v. Hale, 16 Me. 326, was, whether sim-
ilar evidence was admissible. The defendant there was sued for dam-
ages for the loss of a building by fire, the allegation being that the
fire was occasioned by the negligence of the defendant. In that case
the same arguments were presented as here. The evidence received
in that case came nearer the point at issue than the evidence here. At
the trial the court permitted witnesses to testify that the defendant
was very careful with fire, and that they never discovered any care-
lessness in him about taking care of his fires during the time they
were at his house just before the event complained of. It was held
that the evidence was inadmissible, and the verdict was set aside.
The same rule has been maintained in subsequent cases. Lawrence
v. Mt. Vernon, 35 Me. 100; Dunham v. Rackliff, 71 Me. 345. The
case of Morris v. East Haven, 41 Conn. 252, cited by the defendant, is
an especially pertinent and sustaining decision. See Baldwin v. Rail-
road, 4 Gray (Mass.) 333. * * *
Exceptions sustained.
ILLINOIS CENT. R. CO. v. PRICKETT.
(Supreme Court of Illinois, 1904. 210 111. 140, 71 N. E. 435.)
Boggs, J. 28 A judgment in the sum of $4,000 in favor of the ap-
pellee administratrix, entered in the circuit court of Marion county
against the appellant company, was affirmed by the Appellate Court
for the Fourth District on appeal, and this judgment is before us for
review by the further appeal of the appellant company.
Thomas J. Prickett, appellee's intestate, was a locomotive engineer
in the employ of the appellant company. On the morning of the 17th
day of May, 1900, he left Centralia, going south, on locomotive en-
gine No. 915, which was drawing a passenger train. When approach-
ing the station at Du Bois, about 20 miles south of Centralia, with
slackening speed preparatory to stopping at such station, the boiler of
the locomotive engine suddenly exploded with great violence, causing
the death of the engineer, Prickett, and of the fireman of the locomo-
2 8 Part of opinion omitted.
S44 CIRCUMSTANTIAL EVIDENCE (Cll. 5
tive, and injuring a section hand who was standing by the side of the
track.
In proper order, the alleged errors of the court in its rulings as to
the admission and exclusion of evidence present themselves for con-
sideration.
The court allowed testimony to be produced to show the deceased
had the reputation of a careful and competent engineer and of a sober
man. Whether the explosion was occasioned by any lack of ordinary
care on the part of the deceased was at issue. It was incumbent on
the plaintiff to maintain the negative of that contention. That the
decedent exercised ordinary care was susceptible of circumstantial
proof; that is, it might be inferred from facts and circumstances ap-
pearing in the proof. Chicago, Burlington & Quincy Railroad Co.
v. Gunderson, 174 111. 495, 51 N. E. 708; Chicago & Eastern Illinois
Railroad Co. v. Beaver, 199 111. 34, 65 N. E. 144. No one other than
the fireman was in the cab of the engine, or so situated as to be able
to see the acts and conduct of the deceased engineer. The fireman
was also killed by the explosion. The exploding engine was seen by
other witnesses, but they could not see what the deceased did at the
time when and immediately before the explosion occurred. Such be-
ing the fact, we think the court properly regarded the evidence as to
the general reputation of the deceased as a careful and competent en-
gineer and a sober man to be admissible as testimony tending to es-
tablish that he exercised ordinary care on the occasion under investi-
gation. Illinois Central Railroad Co. v. Nowicki, 148 111. 29, 35 N.
E. 358; Chicago, Burlington & Quincy Railroad Co. v. Gunderson,
supra. * * *
Judgment affirmed. 29
SECTION 2.— CONDUCT
REX v. BALL.
(Court of Crown Cases Reserved, 1S07. Russ. & R. 132.)
The prisoner was tried before Mr. Justice Heath, at the Lewes
summer assizes, in the year 1807, on an indictment charging him in the
first count with forging a Bank of England promissory note for the
payment of £5., with an intent to defraud the Governor and Company
of the Bank of England. And on another count for uttering the same,
&c. 30
20 s<<> Southorn Kan. Ry. Co. v. Robbins, 43 Knn. 145, 23 Pnc. 113 (1890),
limit in- the use of such evidence to cases where no eyewitnesses were avail-
able.
»o I'art of opinion omitted.
Sec. 2) conduct 845
The prisoner uttered the note in question on the 11th of June, 1807.
The note was forged with a camel-hair pencil.
The counsel for the prosecution offered to prove that the prisoner
had uttered another forged note, in the same manner, by the same
hand, and with the same materials, on the 20th day of March preced-
ing; and that two ten pound notes and thirteen one pound notes of
the same fabrication had been found on the files of the Company, on
the back of which there was the prisoner's hand-writing, which was
evidence of their having been in his possession ; but it did not ap-
pear when the Company received them.
The learned judge told the counsel for the prosecution who insisted
that such evidence had been admitted in a similar case, that he would
receive it subject to the opinion of the judges, if they chose to risk it;
but if the judges should be of opinion that the evidence was inadmissi-
ble, it would probably operate as an acquittal. After some consulta-
tion, the counsel for the prosecution tendered the evidence, which was
received and the prisoner found guilty.
In Michaelmas term, 14th of November, 1807, all the judges (ex-
cept Rooke, J.) met, and the majority were of opinion, that the evi-
dence was admissible, subject however to observations as to the
weight of it, which would be more or less considerable, according to
the number of the other notes; the distance of time at which they
were put off, and the situation of life of the prisoner, so as to make it
more or less probable that so many notes should pass through his
hands in the course of business.
Chambre, J., thought the evidence wholly inadmissible as being evi-
dence of facts wholly distinct from the transaction which formed
the subject of the indictment, and which the prisoner could not be
prepared to answer or explain. 31 * * *
REX v. VOKE.
(Court of Crown Cases Reserved, 1S23. Russ. & R. 531.)
The indictment in this case charged the defendant with assault on
Thomas Pearce with intent to kill. Other counts charged assault with
intent to maim. 32
* * * Thomas Pearce proved, that on the 3d July last, he was
gamekeeper to Lord Glastonbury, for the manor of Compton Dun-
den, in the county of Somerset. On that day he went to the said
manor; he was on horseback, but left his horse in some furze be-
cause he saw a man with a gun; he went to the man who was the
prisoner, and asked him what he was about, and told him he was do-
3i For a collection of the modern cases of forgery, see People v. Marrin,
20.3 N, Y. 275, 98 N. E. 474, 43 L. R. A. (N. S.) 754 (1912), annotated.
32 The statement has been condensed.
S46 CIRCUMSTANTIAL EVIDENCE (Ch. 5
ing a wrong thing, and giving him a great deal of trouble ; and asked
him why he did so. Pearce had known the prisoner for several
years. He then asked him if he had taken out a certificate, and
being answered that he had not, he asked him why he went about so ;
upon which the prisoner said, "You can pardon me, can't you ? "
Pearce told him he could not ; upon which the prisoner said he would
go anywhere with him. Pearce then proposed that the prisoner
should go down to Mr. Ryal, Lord Gastonbury's steward, and said
that if Mr. Ryal would pardon him, he should have no objection; and
the prisoner assented to go with him. Pearce observed that the ram-
rod of the prisoner's gun was broken short off in the middle. They
walked along together, until they came near to the horse which was
about sixty yards off, when Pearce went on before him towards the
horse, and when he was at a short distance from the prisoner, the
prisoner fired at his back, but said nothing. Pearce attempted to turn
round and saw the prisoner running, and attempted to run after him,
but his back seemed to be broken, and he could not get on at all.
Pearce then turned back to the horse, and after getting upon it, was
making his way home to a place called Butley, about two miles off,
and had got about half a mile on his road, at a place where there was
a hedge on each side, when he saw prisoner again in the lowest part
of one of the hedges, and the moment he looked round at him, the
prisoner again fired his gun, the discharge from which beat out one
of Pearce's eyes and several of his teeth, but did not cause him to fall
from his horse. Between the first and second firing was about a quar-
ter of an hour ; and when the prisoner fired the last time, he was not
at a greater distance from Pearce than three or four yards.
In the course of the trial it was suggested that the prosecution
ought not to give evidence of two distinct felonies. But the learned
judge thought it unavoidable in this case; as it seemed to him, to be one
continued transaction in the prosecution of the general malicious in-
tent of the prisoner. Upon another ground also the learned judge
thought such evidence proper. The counsel for the prisoner, by his
cross examination of Pearce, had endeavored to show that the gun
might have gone off the first time by accident: and although the
learned judge was satisfied that this was not the case, he thought the
second firing was evidence to show that the first, which had preceded
it only one quarter of an hour, was wilful, and to remove the doubt,
if any existed, in the minds of the jury. * * *
The jury found the prisoner guilty.
The learned judge passed sentence upon him, but respited the exe-
cution in order that he might request the opinion of the learned judges,
as to the propriety of the conviction.
In Michaelmas term, 1823, the judges considered this case, and
were of opinion that the evidence was properly received, and the pris-
oner rightly convicted.
Sec. 2) CONDUCT
847
STATE v. ADAMS.
(Supreme Court of Kansas, 1878. 20 Kan. 311.)
Brewer, J. 33 Defendant was convicted in the district court of
Franklin county of the crime of burglary, and from such conviction
has appealed to this court. Many errors are alleged, some of which
present questions of importance and difficulty, while others have al-
ready been settled, or require but a passing notice. * * *
Error is alleged in the admission of testimony, in this, that evi-
dence was admitted which simply tended to show defendant guilty of
another offense, and in no manner tended to connect him with the
crime charged. The rule of law applicable to questions of this kind
is well settled. It is clear, that the commission of one offense cannot
be proven on the trial of a party for another, merely for the purpose
of inducing the jury to believe that he is guilty of the latter, because
he committed the former. You cannot prejudice a defendant before a
jury by proof of general bad character, or particular acts of crime
other than the one for which he is being tried. And on the other
hand, it is equally clear, that whatever testimony tends directly to
show the defendant guilty of the crime charged, is competent, although
it also tends to show him guilty of another and distinct offense. State
v. Folwell, 14 Kan. 105. A party cannot, by multiplying his crimes,
diminish the volume of competent testimony against him. A man may
commit half a dozen distinct crimes, and the same facts, or some of
them, may tend directly to prove his guilt of all; and on the trial for
any one of such crimes it is no objection to the competency of such
facts, as testimony, that they also tend to prove his guilt of the others.
By this rule, whatever is done in preparation for a crime, or in con-
cealing the fruits, is competent, although in such preparation or con-
cealment is committed another and distinct offense. And wherever
there is testimony showing a conspiracy to commit a crime, evidence
of acts done intermediate the conspiracy and the crime, in preparation
of means for such crime, is competent, and that notwithstanding
through some outside intervention the means so prepared are not ac-
tually used, but the crime is otherwise accomplished.
Within the scope of these rules comes the testimony objected to in
the case at bar. The facts are these : The charge was burglary, in
breaking into a store. The information was against four parties.
One was called as a witness by the state, and, admitting himself to be
an accomplice, testified that all four were engaged in the burglary :
that they all met, two nights prior thereto and arranged for commit-
ting the crime, and fixed the time at which it should be committed ;
thai defendant then said that a bar of iron and a pair of pinchers was
all that was needed, and he would get them ; that at the time appoint-
33 Statement and part of opinion omitted.
84S CIRCUMSTANTIAL EVIDENCE (Cll. 5
ed all met, and defendant had with him the bar of iron and the pinch-
ers. Other witnesses testified that on the day before the burglary they
saw this defendant, and one of the other parties charged with the
crime, sitting together in a store engaged in conversation for a long
time. And then a witness was permitted to testify that he saw this de-
fendant coming out of the same store, after such conversation, with a
carpenter's brace, which he hid behind some coffin boxes, and which,
after his departure, was taken and returned to the owner. This last is
the testimony objected to. As detailed by the witnesses it establishes
an independent crime, that of larceny. As such, say counsel, it is in-
competent. Nor is it competent as evidence of preparation, for the
brace was not an instrument intended to be used, or in fact used in the
burglary. To this we reply, that the state, having offered evidence of
a conspiracy and agreement between the parties to commit the crime,
might properly show any conduct or acts of either thereafter tending
to sustain the evidence of the agreement, and indicating preparation
to accomplish the crime, or remove the fruits.
It is not essential that the state establish beyond peradventure that
the acts or conduct were based upon the conspiracy, or in reference to
the crime ; it is enough that they harmonize with and tend to con-
firm the charge of the conspiracy, and are reasonably indicative of
preparation for the crime. If no act or conduct of the defendant
could be shown, unless the motive therefor, or the connection between
it and the crime, were made undisputably clear, the range of inquiry
would be limited and narrow. It is enough that the act has an appar-
Ient or probable connection with the crime; and then the motive of
the defendant, and the weight of it as testimony, are to be considered
by the jury. The fact that defendant and another of the four impli-
cated in the conspiracy were engaged for a long time in private con-
versation the noon prior to the burglary, may of itself, when the na-
ture and substance of their conversation is unknown, prove nothing;
yet it is a circumstance harmonizing with the alleged conspiracy, and
proper for the consideration of the jury in determining whether there
was, as charged, such a conspiracy. So, while the testimony of the
accomplice is, that a bar of iron and pinchers were to be and were the
instruments of the crime ; may not the state show that defendant was
engaged between the conspiracy and the crime in procuring other in-
ruments therefor? That a brace and bit might be very serviceable
in forcing an entrance through a door, cannot be doubted ; that the
brace stolen by defendant was not used in the burglary, was prevented
by the act of one who witnessed its larceny; that it was intended to
so used, is not affirmatively shown, lint inasmuch as it was an
■ in nt one intending burglary might naturally seek to obtain, as
it i intermediate tlie conspiracy and the crime, and immedi-
after a long interview between two of the conspirators, the tak-
ing and concealment of it was a circumstance which might fairly be
t< d to the jury for their consideration.
Sec. 2) conduct 849
Suppose, that instead of stealing a brace, the defendant had on
that day gone many miles away and brought his own brace thence to
a place whence it could easily be obtained on the coming night for the
contemplated burglary, and that then, without the knowledge of de-
fendant, it was taken away by some third party: could not this cir-
cumstance be shown, and that, notwithstanding the testimony of the
accomplice as to what was agreed to be and what was in fact used?
Would not the act be one tending to show preparation — a preparation
made fruitless by the unexpected act of another? Could it not be
shown that one charged with homicide, immediately prior thereto,
was providing himself with several weapons, though only one was in
fact used? and if so, does the manner in which he so provides himself
affect the competency of the testimony? If one weapon he stole, one
he borrowed, and one (his own) he simply put in order, would proof
as to the first be incompetent, while evidence as to the others was ad-
missible? and must it be affirmatively shown that each weapon was
procured with reference to the homicide, before evidence concerning
its procurement is competent? or are the facts concerning all to be
put in evidence, leaving their weight to be determined by the jury?
This we think must be laid down as the true rule : that where there ,
is evidence of a conspiracy to commit a crime, and of its subsequent} 'wld.
commission, the state may in support and corroboration thereof show '
any act or conduct of the alleged conspirators intermediate the con-
spiracy and the crime, which apparently recognizes the existence of
the conspiracy, or reasonably indicates preparation to commit the
crime, or preserve its fruits ; and this, notwithstanding such special J
act of preparation was not the one discussed and agreed upon by the
conspirators, and is rendered actually fruitless and unavailing by the,
unexpected interference of third parties, and also involves the com-^
mission of another and distinct crime. State v. Cowell, 12 Nev. 337 ;
Hester v. Commonwealth, Sup. Ct. of Penn., 6 Cent. Law J. 395.
* * *
Judgment affirmed.
MAKIN et ux. v. ATTORNEY GENERAL FOR NEW SOUTH
WALES.
(Privy Council, 1893. L. R. [1894] A. C. 57.)
The Lord Chancellor. 34 The appellants in this case were tried
and found guilty at the Sydney Gaol Delivery held at Darlinghurst
of the murder of the infant child of one Amber Murray. The learn-
ed judge before whom the case was tried deferred passing sentence
** Statement and part of opinion omitted.
Hint.Ev. — 54
850 CIRCUMSTANTIAL EVIDENCE (Cll. 5
until after the argument of the special case which he stated for the
opinion of the Supreme Court of New South Wales.
The points reserved by the learned judge were: First, that his
honour was wrong in admitting evidence of the finding of other
bodies than the body of the child alleged to be Horace Amber Mur-
ray. * * *
Special leave was granted to appeal to this Board from the judg-
ment of the Supreme Court of New South Wales, some of the ques-
tions raised being of grave and general importance.
At the close of the argument before their Lordships they intimated
that they would advise Her Majesty that the appeal should be dis-
missed, and that they would state their reasons for this advice on a
future occasion.
There can be no doubt, in their Lordships' opinion, that there was
ample evidence to go to the jury that the infant was murdered. In-
deed, that point was scarcely contested in the argument of the learned
counsel for the appellants. The question which their Lordships
had to determine was the admissibility of the evidence relating to
the finding of other bodies, and to the fact that other children had
been entrusted to the appellants.
In their Lordships' opinion the principles which must govern the
decision of the case are clear, though the application of them is by
no means free from difficulty. It is undoubtedly not competent for
the prosecution to adduce evidence tending to shew that the accused
has been guilty of criminal acts other than those covered by the in-
dictment, for the purpose of leading to the conclusion that the ac-
cused is a person likely from his criminal conduct or character to
have committed the offence for which he is being tried. On the other
I hand, the mere fact that the evidence adduced tends to shew the
commission of other crimes does not render it inadmissible if it be
relevant to an issue before the jury, and it may be so relevant if it
bears upon the question whether the acts alleged to constitute the
crime charged in the indictment were designed or accidental, or to
rebut a defence which would otherwise be open to the accused. The
statement of these general principles is easy, but it is obvious that it
may often be very difficult to draw the line and to decide whether
a particular piece of evidence is on the one side or the other.
The principles which their Lordships have indicated appear to be
on the whole consistent with the current of authority bearing on the
point, though it cannot be denied that the decisions have not always
been completely in accord.
The leading authority relied on by the Crown was the case of Reg.
v. Geering, 18 L. J. (N. S.) M. C. 215, where on the trial of a pris-
r for the murder of her husband by administering arsenic evi-
ice was tendered with the view of shewing that two sons of the
prisoner who had formed part of the same family, and for whom as
11 as for her husband the prisoner had cooked their food, had
Sec. 2) conduct 851
died of poison, the symptoms in all these cases being the same. The
evidence was admitted by Pollock, C. B., who tried the case; he held
that it was admissible, inasmuch as its tendency was to prove that
the death of the husband was occasioned by arsenic, and was rele-
vant to the question whether such taking was accidental or not. The
Chief Baron refused to reserve the point for the consideration of
the judges, intimating that Alderson, B., and Talfourd, J., concurred
with him in his opinion.
This authority has been followed in several subsequent cases. And
in the case of Reg. v. Dossett, 2 C. & K. 306, which was tried a few
years previously, the same view was acted upon by Maule, J., on a
trial for arson, where it appeared that a rick of wheat-straw was
set on fire by the prisoner having fired a gun near to it. Evidence
was admitted to shew that the rick had been on fire the previous
day, and that the prisoner was then close to it with a gun in his hand.
Maule, J., said: "Although the evidence offered may be proof of
another felony, that circumstance does not render it inadmissible, if
the evidence be otherwise receivable. In many cases it is an im-
portant question whether a thing was done accidentally or willful-
ly " * * *
The learned counsel for the appellants placed much reliance on the
case of Reg. v. Oddy, 2 Den. C. C. 265, 35 the only one which has been
considered by the Court for Crown Cases Reserved. It was there held
that on the trial of an indictment containing counts for stealing, and
for receiving the property knowing it to be stolen, evidence of the
possession by the prisoner of other property stolen some time before
from other persons was not admissible upon the count for receiving
with guilty knowledge, in respect of which alone it had been admitted
by the recorder. Lord Campbell said that in his opinion there was
no more ground for admitting the evidence under the third count
(for receiving) than under the first or second (for stealing). Under
the two latter, it would have been evidence of the prisoner being a
bad man, and likely to commit the offence there charged. So under
the third count the evidence would only shew the prisoner to be a bad
man; it would not be direct evidence of the particular fact in issue.
Aldersen, B., in his judgment said that the evidence merely went to
shew that the prisoner was in possession of other property which
had been stolen in the previous December, and not that he had re-
ceived such property knowing it to be stolen; that the mere posses-
sion of stolen property was evidence prima facie, not of receiving, but
of stealing, and to admit such evidence in the case before him would
be to allow a prosecutor, in order to make out that a prisoner had
received property with a guilty knowledge which had been stolen in
March, to shew that the prisoner had in the December previously
so See People v. Lindley, 2S2 111. 377, 118 N. E. 719 (1918), as to when other
offenses are admissible on a charge of receiving stolen i>roperty.
852 CIRCUMSTANTIAL EVIDENCE (Ch. 5
stolen some other property from another place, and belonging to
other persons. In other words, they were asked to say that in order
to shew that the prisoner had committed one felony, the prosecutor
might prove that he committed a totally different felony some time
before.
Their Lordships do not think that the judgments in Reg. v. Oddy,
2 Den. C. C. 265, at all conflict with the judgment in Reg. v. Geer-
ing, 18 L. J. (N. S.) M. C. 215, and the other cases referred to.
Their Lordships do not think it necessary to enter upon a detailed
examination of the evidence in the present case. The prisoners had
alleged that they had received only one child to nurse ; that they had
received 10s. a week whilst it was under their care, and that after a
few weeks it was given back to the parents. When the infant with
whose murder the appellants were charged was received from the
mother she stated that she had a child for them to adopt. Mrs.
Makin said that she would take the child, and Makin said that they
would bring it up as their own and educate it, and that he would
take it because Mrs. Makin had lost a child of her own two years
old. Makin said that he did not want any clothing; they had plenty
of their own. The mother said that she did not mind his getting £3.
premium so long as he took care of the child. The representation
was that the prisoners were willing to take the child on payment of
the small sum of £3., inasmuch as they desired to adopt it as their
own.
Under these circumstances their Lordships cannot see that it was
irrelevant to the issue to be tried by the jury that several other in-
fants had been received from their mothers on like representations,
and upon payment of a sum inadequate for the support of the child
for more than a very limited period, or that the bodies of infants had
been found buried in a similar manner in the gardens of several hous-
es occupied by the prisoners.
In addition to the question whether die evidence objected to in the
present case was admissible the learned judge (as has been stated)
reserved for the opinion of the Supreme Court the further questions,
whether, if not admissible, the prisoners were rightly convicted; and
even if inadmissible, whether there was evidence sufficient to sustain
the conviction.
These questions, and the point of law raised by them, were fully
argued before their Lordships, and although their Lordships having
arrived at the conclusion that the evidence was admissible it became
unnecessary for the determination of the appeal to decide them, their
Lordships think it right to state the opinion which they formed upon
the important question of law involved. 36 * * *
-• suite v. Hyde 234 M<>. 226, 136 S. W. 816, Ann. Cas. 1912D, 191
(1911), thai evidence of another homicide luiyht bo received to show the de-
fendant's motive.
Sec. 2) conduct 853
THE KING v. FISHER.
(Court of Criminal Appeal, 1909. L. R. [1910] 1 K. B. 149.)
The judgment of the Court (Lord Alverstone, C. J., and Channell
and Lord Coleridge, JJ.) was delivered by
Channell, J. 87 In this case the appellant was charged on an in-
dictment containing three counts, all of which practically related to
the same transaction. The appellant obtained on June 4, 1909, a
pony and cart from the owner, saying he wanted it for his invalid wife,
and that he would take it on a week's trial ; he agreed to pay £2.
for the use of the pony and cart for a week if he did not keep it', and as
some sort of security for the price he gave a bill of exchange for
£25. That was the transaction, and it was proved that his wife was
not an invalid and that the whole story was false, and that a refer-
ence which he had given to a bank was a useless reference because he
had kept the account at the bank in a different name, and, moreover,
the account had been closed some time before. The substance of the
case for the prosecution was that this was a fraudulent transaction.
In the circumstances I should have thought that the evidence was
amply sufficient to enable the prosecution to ask the jury to convict
the appellant, but the prosecution proceeded to call witnesses to speak
to other cases in which the appellant was alleged to have obtained
goods by false pretenses. In one of those cases the circumstances were
very similar to those of the present case, but, as the jury were not satis-
fied that the appellant was the man concerned in that case, it has no
bearing on the present question; otherwise I should have been in-
clined to think that the evidence as to that case was material and ad-
missible. The other cases of which evidence was given were cases
where the appellant had obtained provender by falsely representing
in substance that he was carrying on a business and was therefore in a
position to pay for goods supplied to him. The question is whether
this evidence was admissible on the authority of the cases in which it
has been held that evidence is admissible to prove that the prisoner
has committed other offenses besides the one charged in the indictment.
The question is one which has frequently come before this court and
before judges at the assizes, and it is one that is not always easy to de-
cide. The principle is clear, however, and if the principle is attended
to I think it will usually be found that the difficulty of applying it to a
particular case will disappear. The principle is that the prosecution I
are not allowed to prove that a prisoner has committed the offence 1
with which he is charged by giving evidence that he is a person of (
bad character and one who is in the habit of committing crimes, for
that is equivalent to asking the jury to say that because the prisoner
has committed other offenses he must therefore be guilty of the par-
ticular offence for which he is being tried. But if the evidence of other
st Statement omitted.
854 CIRCUMSTANTIAL EVIDENCE (Ch. 5*
] offences does go to prove that he did commit the offence charged, it
is admissible because it is relevant to the issue, and it is admissible
not because, but notwithstanding that, it proves that the prisoner has
I committed another offence. For example, on a charge of embezzle-
ment, if the defence is that the failure to account for the money is
due to a mistake on the part of the prisoner, evidence is admissible to
prove other instances of the same kind, because that evidence tends
to prove that in the particular case the prisoner had not made a mis-
take. Another instance is where a person obtains goods by paying for
them with a cheque which is subsequently dishonoured, in which case
evidence is admissible to prove other cases in which the prisoner has
obtained goods by cheques which were dishonoured. In other words,
whenever it can be shewn that the case involves a question as to
there having been some mistake or as to the existence of a system of
fraud, it is open to the prosecution to give evidence of other instances
of the same kind of transaction, notwithstanding that the evidence
goes to prove the commission of other offences, in order to negative the
suggestion of mistake or in order to shew the existence of a syste-
matic course of fraud.
Applying these principles to this case, the charge here is that the
prisoner obtained the pony and cart from the prosecutor by making
certain statements. The falsity of those statements is not proved by
giving evidence that in other cases the prisoner made other false state-
ment, though it does tend to shew that the prisoner was a swindler.
But there is no rule of law that swindling is, as regards proof, differ-
ent from any other offence, and if a man is charged with swindling
in a particular manner, his guilt cannot be proved by shewing that he
has also swindled in some other manner. We are of opinion that the
evidence as to the other cases was inadmissible in this case, because it
was not relevant to prove that he had committed the particular fraud
for which he was being charged, in that it only amounted to a sug-
gestion that he was of a generally fraudulent disposition. On the
other hand, if all the cases had been frauds of a similar character, shew-
| ing a systematic course of swindling by the same method, then the
P evidence would have been admissible.
In the circumstances of this case we cannot come to any other con-
clusion but that the jury may have been influenced by the evidence of
the other cases, and, therefore, although there was sufficient evidence
to convict the prisoner without the evidence as to the other cases, in
accordance with the rule laid down in this Court, the conviction can-
not stand.
Appeal allowed. 38
as Compare Beg. v. Francis, L. R. 2 C. C. 128 (1874), where on a charge of
fraudulently obtaining properly by means of a pledge of Imitation jewelry it
was held proper to admil proof of other attempts to pledge similar Jewelry.
B»or a collection of the cases on fraud and false pretenses, sec People v. Ber-
Itz L6J 36, 126 Pac. 479, 48 L. R. A. (N. S.) 667 0-912), annotated.
Sec. 2) conduct 855
PEOPLE v. KATZ.
(Court of Appeals of New York, 1913. 209 N. Y. 311, 103 N. E. 305, Ann. Cas.
1915A, 501.)
Werner, J. 39 The defendant appeals" from a judgment of the Ap-
pellate Division in the First Department affirming a judgment enter-
ed upon a verdict at Trial Term, convicting him of the crime of grand
larceny in the first degree. The case is one of unusual interest, both
in respect of the novel scheme or method by means of which the
crime is said to have been perpetrated, and the number, variety, and
importance of the questions which we are asked to decide. More
than 300 exceptions were taken by defendant's counsel to the rulings
of the trial court, but many of these may be assigned to groups re-
lating to different classes of testimony to which separate objections
were repeated as the respective witnesses were examined. These
groups of exceptions will, of course be considered collectively; but
even this resort to economy of space and time can only measurably
foreshorten this discussion, because a careful and comprehensive state-
ment of the facts 40 is no less essential than a thorough discussion of
the questions of law involved. * * *
It is contended that the trial court erred in receiving^ evidence tend-
ing to prove that the defendant had previously been concerned in an
attempt to commit another and similar crime, and this contention is
based upon the testimony of one Schwed which was received under ob-
jection and exception. * * *
It is the law that ordinarily a man cannot be convicted of one crime
by proof that he was guilty of another. Coleman v. People, 55 N. Y.
81 ; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep.
851 ; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A.
193; People v. Governale, 193 N. Y. 581, 86 N. E. 554. There are
various recognized exceptions to this rule, however, and one of them .^
is that when guilty knowledge, quite commonly called intent, is an es-
sential ingredient of the crime charged, evidence is admissible of
similar crimes or acts committed or attempted at or about the same
time by the person charged. The reasons for the rule and the excep-
tion are equally simple and obvious. The general rule is rooted in
the principle that a man may not be convicted of one crime simply
because he may be shown guilty of another when there is no connec-
tion between the two. Simple proof showing that A. shot B. at one
time and place throws no light upon the charge that A. poisoned C
at another time and place. In either of these cases guilty knowledge
3 9 Part of opinion omitted.
40 in tho omitted passages the opinion sets out in detail a complicated se-
ries of transactions by which the defendant and several others associated
with him obtained possession of a large amount of mining stock belonging to
the prosecuting witness, Heinze. These facts are too extensive to be printed
in full.
S56 CIRCUMSTANTIAL EVIDENCE (Cll. 5
or intent is inferable from the nature and surroundings of each act,
and each must be judged on its own circumstances.
Quite another principle is to be invoked, however, when guilt can-
not be predicated upon the mere commission of the act charged as a
crime.' In such a case the general rule gives way to the exception
under which guilty knowledge of a defendant may be proved by evi-
dence of 'his complicity in similar offenses under such circumstances
as to support the inference that the act charged was not innocently
or inadvertently committed. Familiar illustrations of this exception
to the general rule are to be found in cases of uttering counterfeit
money, in forgery, in obtaining money under false pretenses, and in
receiving stolen property. Commonwealth v. Jackson, 132 Mass. 16;
Commonwealth v. Bigelow, 8 Mete. (Mass.) 235 ; Commonwealth v.
Stone, 4 Mete. (Mass.) 43; Helm's Case, 1 City H. Rec. 46; Smith's
Case, 1 City H. Rec. 49; Commonwealth v. Johnson, 133 Pa. 293,
19 Atl. 402; Coleman v. People, 58 N. Y. 555 ; Copperman v. People,
56 N. Y. 591 ; People v. McClure, 148 N. Y. 95, 42 N. E. 523 ; Com-
monwealth v. Russell, 156 Mass. 196, 30 N. E. 763; People v. Ever-
hardt, 104 N. Y. 591, 11 N. E. 62; People v. Dolan, 186 N. Y. 4,
78 N. E. 569, 116 Am. St. Rep. 521, 9 Ann. Cas. 453; People v.
Xeff, 191 N. Y. 210, 83 N. E. 970; People v. Marrin, 205 N. Y. 275,
98 N. E. 474, 43 L. R. A. (N. S.) 754.
The application to the case at bar of the principle upon which these
cases were decided can be simply illustrated in the light of a few
undisputed facts. If the evidence had tended to show that the de-
fendant had been guilty of a simple common-law larceny, by a physical
trespass and a felonious asportation of the property, it would be true
that evidence of other similar larcenies would have been inadmissible.
The reason is obvious. In such a case the guilty knowledge or in-
tent is proved by the act itself, and it would add nothing to the proof
of guilt to show that on other occasions the defendant had committed
other similar larcenies. That is not the case at bar. Here the larceny
was committed by means of a conspiracy which required a number of
actors to carry out the involved and ingenious plot, and it is quite
possible that an innocent man, who had inadvertently and unfortu-
nately made a business connection with one or more of the conspira-
tors, might have been drawn into the meshes of the scheme without
any criminal knowledge or purpose on his part. That is precisely the
position which the defendant claims to have occupied in this transac-
tion. Although confessedly a participant in certain phases of the
scheme, he asked the jury to believe that his connection with it was
free from criminality, and his story was such that if the jury had found
for him the verdict could not have been questioned for lack of evi-
dence to support it. His narration of the affair, while strongly in-
dicative of guilt, was not incompatible with innocence, and therefore
the real issue was whether he was a guiltless scapegoat or a guilty
conspirator. That is exactly the typical case in which evidence of
Sec. 2) conduct 857
other similar offenses may be proven. The talk with Schwed about
the $15,000 loan was practically identical, in point of time, with the
transaction in the case at bar, and it related to a loan upon the Heinze
mining stocks. The scheme suggested was in all its essentials the
same as this, and the conversation about it led to a meeting of some of
the very persons who now figure among the conspirators before the
court. The fact that the first scheme was not carried to a successful
conclusion does not affect the admissibility of the evidence. It was
just as competent and cogent for the purpose of proving the defend-
ant's state of mind as it would have been if the thing had actually
been accomplished. We conclude therefore that the evidence of
Schwed was competent. * * *
Judgment affirmed.
STATE v. HILL.
(Supreme Court of Missouri, 1918. 273 Mo. 329, 201 S. W. 58.)
Walker, P. J. 41 The appellant and one Marshall Dumas were
charged in an information filed by the prosecuting attorney of Ray
county with murder in the first degree. A severance was granted, and
at the February term, 1917, of the circuit court of said county, appel-
lant was tried, and the jury failing to agree, the case was continued
until the May term, 1917. Upon a trial at this term appellant was con-
victed as charged, and her punishment assessed at life imprisonment in
the penitentiary. From this judgment she appeals. * * *
III. The admission of testimony tending to show an attempted poi-
soning 4 - of the deceased by appellant several months before the homi-
cide is urged as error. The burden of this objection is that no connec-
tion was shown between this attempt and the crime for which appel-
lant was being tried. This complaint falls short of raising a tenable
objection to the admission of the testimony. There was no pretense on
the part of the state that the attempted crime was a part of the one
committed. It was in no sense the purpose of the introduction of this
testimony to establish the crime, but to show the intent with which it
was committed. On this ground testimony of this character, with
the modification we will hereafter refer to, is held to be admissible.
White, Commissioner, in State v. Patterson, 271 Mo. 99, 109, 196 S.
W. 3, has recently with painstaking care, reviewed and compiled the
numerous Missouri cases on this subject, beginning with a learned opin-
ion by Philips, Commissioner (State v. Myers, 82 Mo. 558, 52 Am. Rep.
389), which for many years has been the leading case on the subject.
The rule deduced from these cases is that where the act constituting
the crime speaks for itself as showing the intent, or where the criminal
4i Part of opinion omitted.
42The actual killing in this case was accomplished by cutting the de-
ceased's throat.
858 CIRCUMSTANTIAL EVIDENCE (Ch. 5
intent is presumed from the act itself, such evidence is not admissible ;
but where different inferences may be drawn regarding the intent with
which the criminal act was done, and the circumstances of the act may
be susceptible of an interpretation indicating innocence, then such evi-
dence is admissible. Here the appellant was absent at the time of the
homicide. Its actual commission was admitted by the witness Alonzo
Jones. He and the appellant's paramour, Dumas, alone testify to her
having provoked the crime by offering an incentive for its commission.
She assails the truth of this testimony. Clothed as she is with a pre-
sumption of innocence, different inferences may be drawn as to the in-
tent with which the crime was committed. If evidence existed sus-
ceptible of an interpretation indicative of her innocence, she would
have been entitled to its admission ; on the other hand, if facts existed
of the attempted commission by her of a former act against the de-
ceased of a kindred nature to the one with which she was charged,
taken in connection with the facts and circumstances of her life and
that of the deceased, all of which were in evidence, then the testimony
was properly admitted. It is true that this evidence is based primarily
upon the testimony of the witness Dumas, but the evidence of the
former crime was not confined to her alleged statement. Confined to
Dumas, its credibility might be open to serious question, but not its
admissibility. Dumas' testimony, however, is corroborated by that of
the doctor who stated that he had treated the deceased for strychnine
poisoning at about the time the appellant stated she had made the at-
tempt. The character of this testimony, therefore, as tending to
show an intent to commit the crime for which she was on trial, is suf-
ficiently established to authorize its admission. * * *
Judgment affirmed.
STATE v. WALDRON.
(Supreme Court of Appeals of West Virginia, 1912. 71 W. Va. 1, 75 S. E.
558.)
Miller, J. 48 On an indictment for the murder of Ben Tate de-
fendant was acquitted of murder in the first degree, but found guilty
of murder in the second degree, and the judgment below was that he
be confined in the penitentiary for the period of ten years.
The homicide, admitted, occurred on the night of January ,
1910, a Sunday night, in a brothel in Keystone, McDowell County.
Defendant was a deputy United States Marshal, who at the request
of White, town sergeant, had gone with him to this house to make
an arrest for alleged illicit sales of intoxicating liquors. While wait-
ing the return of White from the Mayor's office with warrants, de-
dant, who before White left to secure the warrants, had been in-
*« Part of opinion of Miller, J., and dissenting opinion of Williams, J.,
omitted.
Sec. 2) conduct 859
vited on the outside of the house by Tate and his companion Gilles-
pie, patrons of the house, and had declined, was on their coming out
of the room of the mistress of this house, enticed by them into an
adjoining room, where, almost instantly, the door being shut by one
of them, the difficulty occurred, resulting not only in the death of
Tate, but of Gillespie also, from pistol shots fired by defendant.
Defendant was the only living witness as to what actually took
place in the room where the homicide occurred. He admitted the
killing, but on his trial relied on self defense.
The controversy here is reduced to a few questions relating to the
rejection of certain evidence proposed by the prisoner, and to the
giving and rejecting of certain instructions to the jury. * * *
In connection with this testimony and as further tending to show
Tate and Gillespie were the aggressors, and establish his theory of
self defense, the prisoner proposed, but was not permitted to prove,
by two witnesses, Baxter and Hermanson, that but a few moments
before the homicide, both Tate and Gillespie, in connection with two
or three other men, were in a violent state of mind towards Herman-
son; that but a few moments before White and Waldron entered
the house Tate and Gillespie, as Baxter thought from their actions,
acting under the influence of liquor, jumped on Hermanson, in aid
of their lewd mistresses, and without other cause, beat him, while
Hermanson was there waiting for two other women to come down
stairs and pay him some money he claimed they owed him.
The attorney general and associate counsel justify the action of
the court in excluding this evidence, not on the ground that it might
not have influenced the verdict of the jury, but on the grounds, (a)
that evidence of a single act of violence is not admissible to establish
the turbulent and violent character of deceased; (b) that the con-
duct of Tate and Gillespie towards Hermanson was unknown to Wal-
dron, and if for no other was inadmissible for this reason; and, (c)
because the conduct of Tate and Gillespie constituted no part of the
res gestae, had no bearing upon or connection with the homicide, that
there was no causal or even explanatory relation between that recent
occurrence and the homicide.
In homicide cases, where the general character of the deceased for
turbulence and violence is involved, the general rule, establised by
the weight of authority, no doubt is, that evidence of isolated facts
or specific acts forming no part of the res gestae, and in no way con-
nected with defendant, will not be received in evidence. 21 Cyc. 910,
and cases cited in notes. But when self defense is relied on, and
where as in this case, there is evidence tending to show the deceased
was the aggressor, the dangerous character of deceased may be shown
by the facts and circumstances attending the homicide, and so con-
nected with it as to constitute a part of the res gestae. 21 Cyc. 909;
1 Wigmore on Ev., section 363; State v. Morrison, 49 W. Va. 210,
218, 38 S. E. 481 ; Harrison v. Com., 79 Va. 374, 52 Am. Rep. 634.
860 CIRCUMSTANTIAL EVIDENCE (Ch. 5
Moreover, Mr. Wigmore, 1 Wigmore on Ev., section 198, citing nu-
merous cases says: "When the turbulent character of the deceased,
in a prosecution for homicide, is relevant (under the principle of ,§
63, ante), there is no substantial reason against evidencing the char-
acter by particular instances of violent or quarrelsome conduct. Such
instances may be very significant ; their number can be controlled by
the trial Court's discretion; and the prohibitory considerations ap-
plicable to an accused's character, (ante, § 194) have here little or
no force." And whether in such cases as the one at bar there is
necessity of showing defendant's knowledge of deceased's charac-
ter, this writer, in section 63, referred to, says: "The reason for
the hesitation, once observable in many Courts, in recognizing this
sort of evidence, and the source of much confusion upon the sub-
ject, was the frequent failure to distinguish this use of the deceased's
character from another use, perfectly well-settled, but subject to a
peculiar limitation not here necessary, — the use of communicated
character to show the fact and the reasonableness of the defendant's
apprehension of violence. * * *
We agree with this writer that reason, if not the weight of judicial
decision, favors the admissibility in evidence of such facts, when the
question is the knowledge or belief of the defendant in the danger-
ous character of deceased, and the necessity for acting in self de-
fense. And on parity of reasoning where self defense is relied on
and there is some evidence that deceased was the aggressor, and the
question is what the deceased probably did do, his quo animo, as
evidenced by his recent acts of turbulence even towards a third per-
son, so connected in time, place and circumstance with the homicide,
as to likely characterize the deceased's conduct towards the defend-
ant ought, on the principles stated by this writer in said section 63,
to be received in evidence, for the question then is what deceased
probably did, not what defendant probably thought deceased was go-
ing to do. * * *
Judgment reversed. 44
HOIXINGHAM v. HEAD.
(Court of Common Pleas, 185S. 4 C. B. [N. S.] 388.)
This was an action for the price of a quantity of artificial manure
sold by the plaintiff to the defendant.
At the trial before Williams, J., at the last Assizes for Sussex, it
appeared that the plaintiff, who represented himself to be the agent of
a company styled the Sussex Manure Company, was in the habit of
u gee State v. Bailey, 190 Mo. 257, 88 s. W. 738 (1906), where In order to
lefense it was held proper tor the prosecution to prove that defend
nut a ! another nonunion man during the earlier part of the same
enlng.
Sec. 2) conduct 801
travelling about to the different market towns to sell an article called
Rival Guano ; that he met with the defendant, who was the occupier
of a farm in the county of Sussex, adjacent to a farm which had form-
erly been in the occupation of the plaintiff, and prevailed upon him to
purchase a quantity of this guano; and that it turned out to be alto-
gether worthless.
The defence set up was, that the article had been purchased by the
plaintiff subject to a condition that it was not to be paid for unless it
proved equal to Peruvian guano : and it was proposed, on cross-exam-
ination, to ask the plaintiff whether he had not made contracts with
other persons for the sale of his Rival Guano upon the terms that the
purchasers should not pay for it unless it turned out to be equal to
Peruvian guano.
The learned judge permitted the question to be put, for the purpose
of testing the plaintiff's credit.
The defendant's counsel then proposed to call witnesses to prove that
the plaintiff had made contracts with other persons for the sale of his
guano upon the terms suggested.
The learned judge ruled that this evidence was not admissible, as
not being relevant to the issue, and res inter alios acta.
A verdict having been found for the plaintiff,
Montagu Chambers now moved for a new trial, on the ground of
the improper rejection of evidence, and also that the verdict was
against evidence.
WiLLES, J. 45 I am of opinion that there ought to be no rule in this
case. The question is, whether, in an action for goods sold and de-
livered, it is competent to the defendant to set up by way of defence
that the plaintiff has entered into contracts with third persons in a par-
ticular form, with the view of thereby inducing the jury to come to the
conclusion that the contract sued upon was not as represented by the
plaintiff. I am clearly of opinion that it was not competent to the de-
fendant to do so. The case put forward on the part of the plaintiff,
was, that the defendant bought of him a quantity of a certain article
called "Rival Guano," at a given price per ton. The defendant, on
the other hand, insists that it was one of the terms of the contract that
he was not to pay for the article unless it turned out to be equal to
Peruvian guano. The plaintiff, having given evidence in support of
his case, was asked on cross-examination by the defendant's counsel
whether he had not entered into contracts for the sale of his £uano to
other persons upon the terms suggested, viz., to be paid for only on
condition that it proved equal to Peruvian guano. That question was
disallowed as not being competent evidence for the purpose of establish-
ing that the contract was made subject to that condition. And I un-
derstand that my Brother Williams also rejected similar evidence in
chief, which was offered on the part of the defendant. I am of opin-
es Opinions of Byles and Williams, JJ., omitted.
862 CIRCUMSTANTIAL EVIDENCE (Cll. 5
ion that the evidence was properly disallowed, as not being relevant to
the issue. It is not easy in all cases to draw the line, and to define with
accuracy where probability ceases and speculation begins : but we are
bound to lay down the rule to the best of our ability. No doubt, the
rule as to confining the evidence to that which is relevant and pertinent
to the issue, is one of great importance, not only as regards the particu-
lar case, but also with reference to saving the time of the court, and
preventing the minds of the jury from being drawn away from the real
point they have to decide. This rule is nowhere more clearly laid
down than in the very able treatise by Mr. Best upon the Principles
of Evidence, 2d edit. 319. "Of all rules of evidence," he says, "the
most universal and most obvious is this, — that the evidence adduced
should be alike directed and confined to the matters which are in dis-
pute, or form the subject of investigation. Its theoretical propriety
can never be matter of doubt, whatever difficulties may arise in its ap-
plication. The tribunal is created to determine matters in dispute be-
tween contending parties, or which otherwise require proof ; and any-
thing which is neither directly nor indirectly relevant to those matters
ought at once to be put aside, as beyond the jurisdiction of the tribunal,
as tending to distract its attention and to waste its time." And the
same learned author, in another part of his book, says, — p. 14, —
"There is a strong and marked difference as to the effect of evidence in
civil and criminal proceedings. In the former, a mere preponderance
of probability, due regard being had to the burden of proof, is suffi-
cient basis of decision ; but, in the latter, especially when the offence
charged amounts to treason or felony, a much higher degree of assur-
ance is required." Now, it appears to me that the evidence proposed to
be given in this case, if admitted, would not have shown that it was
more probable that the contract was subject to the condition insisted
upon by the defendant.
The question may be put thus, — Does the fact of a person having
once or many times in his life done a particular act in a particular way
make it more probable that he has done the same thing in the same
way upon another and different occasion? To admit such speculative
evidence would I think be fraught with great danger. Where, indeed,
the question is one of guilty knowledge, — as in case of a charge of
uttering base coin or forged notes, — such evidence is received as tend-
ing to establish a necessary ingredient in the crime. But I am not
aware. of any other instance. If such evidence were held admissible, it
would be difficult to say that the defendant might not in any case where
the question was whether or not there had been a sale of goods on
credit, call witnesses to prove that the plaintiff had dealt with other
persons upon a certain credit; or, in an action for an assault, that the
plaintiff might not give evidence of former assaults committed by the
defendant upon other persons, or upon other persons of a particular
class, for the purpose of showing thai he was a quarrelsome individual,
and therefore that it was highly probable that the particular charge of
Sec. 2) conduct 80.°,
assault was well founded. The extent to which this sort of thing might
be carried is inconceivable. The only ground upon which it could at
all be suggested that such an inquiry could be permitted on cross-
examination, would be, that it was a means of testing the credit 4C of
the witness or the accuracy of his memory. But I doubt even that :
and that does not appear to have been the way in which it was put.
As to the cases referred to, — Egerton's Case, R. & R. C. C. 375, is
altogether distinguishable. There, the prisoner was charged with hav-
ing extorted money from the prosecutor by means of a threat to charge
him with a certain offence : and the prosecutor was allowed to give
evidence of another ineffectual attempt by the prisoner to obtain money
from him by similar threats, — in order to show the intention of the
prisoner in making the demand. The evidence there was admissible
because it was all part of one persecution of the prosecutor ; it was
relevant to the matter in issue, as showing the nature and character
of the transaction in question. In Llewellyn v. Winkworth, 13 M. &
W. 598, which was an action against the defendant as acceptor of a bill
of exchange accepted in his name by another person, evidence having
been given of a general authority in that person to accept bills in the
defendant's name, an admission by the defendant of liability upon an-
other bill so accepted was held to be good confirmatory evidence.
There, too, the evidence was relevant to the issue. For these reasons,
I am of opinion that there is no pretence for granting a rule on the
ground of misdirection or the improper rejection of evidence. As to
the other branch of the motion, — for a new trial on the ground that
the verdict was against the evidence, — if the learned judge who tried
the cause had expressed himself dissatisfied with the verdict, I should
probably have thought a rule might be granted: but, as he has not
so expressed himself, there will be no rule.
Rule refused.
MILLER v. HACKLEY.
(Supreme Court of New York, 1810. 5 Johns. 375, 4 Am. Dec. 372.1
Van Ness, J. 47 By an agreement of counsel, the motion on the
part of the defendant, for a new trial and in arrest of judgment, came
on together. This suit is to charge the defendant, as indorser of a bill,
drawn in New York, on Baltimore for 250 dollars, and of two bills
drawn in New York, on Charleston, the one for 310 dollars, and the
other for 315 dollars.
With respect to the first bill, I do not perceive any objection to the
right of recovery. The bill, when presented for acceptance, was re-
fused, and due notice given to the defendant. The evidence to this
46 That it is not error to exclude such a questiou on cross-examination, see
SpeiK-eley v. De Willott, 7 East, 108 (1805).
*" Statement and part of opinion omitted.
SG4
CIRCUMSTANTIAL EVIDENCE (Cll. 5
point consisted of the deposition of a notary, who stated that he pre-
sented the bill for acceptance, and protested it for non-acceptance.
That it was his usual practice, as notary, on the evening of the day of
the protest, and in all cases of protest, to give notice, in writing, to
the indorsers residing at a distance, by putting such notice in the post-
office, directed to the party, at his place of residence ; and he had no
doubt notice in this case was duly given, though, at that distance of
time, he could not recollect positively; and that it was possible he
might have given the notice to the holder to be forwarded.
This evidence was certainly sufficient, in the first instance, to sup-
port the averment of due notice, and there being nothing to affect it,
it will support the verdict. 48 * * *
MEIGHEN v. BANK.
(Supreme Court of Pennsylvania, 1855. 25 Pa. 288.)
Knox, J. 49 * * * The action was against the bank, upon a cer-
tificate of deposit, purporting to have been given by the cashier to the
plaintiff on the 19th of March, 1853 ; and the defence was that no
deposit had been made on that day, but that it was really made on
the 19th of March, 1852, and had been paid out on the plaintiff's
check, and that the date of the year was a mistake.
After the cashier had sworn positively that the plaintiff had made
no deposit in the bank on the 19th of March, 1853 ; and that he had
no doubt the certificate, upon which the suit was brought, was the
one he gave to the plaintiff on the 19th of March, 1852, and, had
given, as a reason, that he stated so from the books; and from his
recollection, he was permitted, under objection, to add as follows,
viz., "it is the invariable custom of the bank to balance and settle the
books every evening. There was no transaction of the kind in March,
1853. If he (Meighen) had made a deposit on that day, I would have
entered the deposit in the daily receipts ; and this is one reason for my
belief that he made no such deposit. If he had made such a deposit,
it would have been such a coincidence as would not have escaped my
mind ; besides, he owed no note of this kind at the time, and that, li
there had been any discrepancy in the books, I would have heard of it.
It is our custom to endorse such drafts before sending them away."
Upon the reception of his evidence, the second, third, fourth, and
fifth errors are assigned. It is unnecessary to notice the assignments
separately and in detail, as they are all involved in the question wheth-
er tlr- above stated evidence was properly received or not. The al-
■ation of the plaintiff in error is, that the witness was illegally per-
«s gi ea under Regular Entries, where this sort of evidence Is con-
stantly used.
«» Statemenl and pari <>f opinion omitted.
Sec. 2) conduct 865
mitted to prove the custom of the bank in settling its books, and en-
dorsing drafts, and to speak of the contents of the book, and to ex-
press his belief with his reasons for it, that no deposit had been made
on the 19th of March, 1853. It is important to remember that the
witness had already stated, without objection, that no deposit was
made by Meighen on the 19th of March, 1853, and that the evidence
which is alleged to have been improperly received, was given merely
as corroborative, or, rather, as explanatory of his previous assertion.
Where a witness has stated a fact, or given an opinion, he may be
asked, either in chief or on cross-examination, how he knows the
fact, or upon what grounds his opinion is founded; and there is no
error in permitting him to answer as to his knowledge of facts, or to
give his reasons for opinions expressed. If it should appear that
either the one or the other were based upon grounds which were legal-
ly inadmissible, it would clearly be the duty of the Court to instruct
the jury to disregard the testimony. But surely there was no error
in permitting the witness to give "the reason for the faith that was
in him ;" and it seems to us that the reasons which he gave entirely
justified his statement, 50 that no deposit had been made in March,
1853, but that the certificate was really given in March, 1852.
Had the evidence of the usage and custom of the bank, in settling
books and endorsing drafts, been offered of itself to disprove the lia-
bility of the corporation, upon the certificate in question, it might
have been liable to the objection that it was the act of the party in
whose behalf it was offered, and therefore not competent; but, as
we have already observed, it was given merely as one of the reasons
which induced the conclusion of the cashier that the certificate of
so Grav, J., in Gardam v. Batterson, 198 N. Y. 175, 91 N. E. 371, 139 Am.
St. Rep/SOG. 19 Ann. Cas. 649 (1910): "* * * The defendant testified to
the paper writings being copies of original letters written by Beadnell ; that
the originals were addressed to the plaintiff, sealed, stamped, and put in a
box or tray, 'on my desk to be mailed in the post office, the same as I always
do with every letter going from my office. * * * They were put in there
for the purpose of being mailed by somebody in my employ. I am head of a
big insurance company down there. The letters are taken from that tray
periodically through the day * * * by the clerk whose duty it was to
gather up the mail and post it. That was the way that all the mail that
emanated from my office always went through the post. That was the regu-
lar course of business in my office every day.' * * * It was essential, in
this case, to the admissibility of the copies, that the testimony of the defend-
ant as to the sending of the letters should have been supplemented by the
further evidence of the clerk, or other employe, whose duty it was to post
letters, that in the regular course of business he had invariably collected the
letters upon the defendant's desk and had posted them. However strong the
convictions and the statements of the defendant as to the usual mailing of the
letters placed on his desk, there was the gap in the proof, created by the fail-
ure to show that regular practice, or custom, of carrying them to the post,
by some one charged with that duty, from which a presumption would natu-
rally arise of these letters having been posted. I think that the trial court
committed no error in excluding the copies of letters offered by the defend-
ant."
Hint.Ev. — 55
S66 CIRCUMSTANTIAL EVIDENCE (Ch. 5
deposit was erroneously dated, and for this purpose it was plainly
admissible. In Schoneman v. Fegley, 14 Pa. 376, the witness said,
"he did not know whether he gave a receipt for a note or not;" and
it was held that the question, whether he usually gave receipts for
notes, was properly ruled out. This is by no means an authority
against the decision of the Court in the case now in hand. If the
witness in Schoneman v. Fegley had stated that he did give a receipt
for the note in question, and had been refused permission to give, as
one of the reasons for believing that he had given a receipt, his in-
variable practice to give such receipts, the case would have been in
point here ; but it is not now.
We see no objection to the reception of the deposition of Mr. Pen-
nock, the teller, as to the entries in the books of the bank made in
his handwriting. The books would not have been evidence, unsup-
ported by the oath of the party making the entries ; but, in connexion
with the oath of the teller, they were evidence in accordance with
the decision of this Court, in the case of Bank v. Boraef, 1 Rawle,
152.
Judgment affirmed.
STATE v. MANCHESTER & L. R. R.
(Supreme Judicial Court of New Hampshire, 1S73. 52 N. H. 528.)
Indictment for negligently running over and killing Benjamin
Woodbury at a public crossing.
The accident occurred on the passage of the up train, on the morn-
ing of December 17, 1870; and it appeared that the same engineer and
fireman, who had charge of the locomotive on that occasion, had
driven the same morning up train for the year preceding. Subject to
the defendants' exception, the State was permitted to prove that, dur-
ing the preceding year, the same train sometimes passed the crossing
where the accident happened without sounding the whistle or ringing
the bell, and were permitted to argue upon said testimony, in connec-
tion with other evidence, for the purpose of showing that the engi-
neer and fireman of the defendants did not, on the occasion of the ac-
cident, seasonably sound the whistle and ring the bell. * * *
Sargent, C. J. c1 * * * The first question raised by the case is
to the admissibility of the testimony as to the same train, run by
the same engineer and fireman, having sometimes passed the same
ing where the accident Happened, during the preceding year,
without sounding the whistle or ringing the bell, as tending to show
that the same men would be more likely to have neglected the per-
formance of these duties upon the occasion in question. The regula-
required that upon each occasion when this crossing was passed
6i Btatemenl condensed and part of opinion omitted.
Sec. 2) conduct 8G7
the bell should be rung and the whistle sounded. There was direct
evidence on one side that neither of these signals was given upon the
occasion of the accident, while there was just as direct evidence upon
the other side that both these signals were properly given. Here was
a direct conflict in the evidence. Which shall the jury believe? Had
this duty been invariably performed according to requirement, or had
these servants of the road grown careless and negligent in regard to
it ? Would their conduct on former occasions have any bearing upon
the probabilities of the case? Would they be more likely to neglect
their duty on this occasion if they had frequently neglected it before,
and with impunity, than they would if they had always scrupulously
observed it?
Negligence is said to consist in the omitting to do something that
a reasonable man would do, or the doing something that a reasonable
man would not do, in either case causing unintentionally, mischief to
a third party. 1 Hilliard on Torts (2d Ed.) 131. It would seem to
be axiomatic, that a man is more likely to do or not to do a thing, or
to do it or not to do it in a particular way, as he is in the habit of do-
ing or not doing it. But this must be understood of acts which are
done, or omitted to be done, without any particular intent or purpose
to injure any one. It cannot apply to acts that are done intentionally,
wilfully, or maliciously, because such acts are done with a specific
object in view, and they are performed, not by force of habit, but with
a definite purpose. It would not be competent evidence that a man
was guilty of murder, to show that he had committed several other
murders before ; and so of any other crime, or any wilful trespass, or
any act done and intended for the specified object in question.
If, in this case, it had been charged that these agents of the corpora-
tion had knowingly, intentionally, wilfully, or maliciously done or
omitted to do any act for the purpose of injuring the deceased or any
body else, then the only questions would be, was the act done, or
omitted, as charged ? and did the knowledge, the intention, the will, or
the malice, exist when the act was done or omitted? But when the
question is, Did these servants of the road, without any intention
whatever, and through mere negligence or carelessness, omit to give
these signals on that occasion? we think the inquiry was properly
made as to what they had done before in that regard, and whether
they had or had not grown habitually negligent of the requirements
of the road in that particular. In this view of the case, we think the
evidence was admissible, not as evidence of character, not as evidence
of fitness or unfitness, but simply as having some tendency to show
that on this particular occasion these agents were more probably neg-
ligent and careless, because they had before frequently neglected the
same duty with impunity, and had thus become habitually negligent
in that regard. This exception is overruled. * * *
8G8 CIRCUMSTANTIAL EVIDENCE (Cli. 5
BRODERICK v. HIGGINSON.
(Supreme Judicial Court of Massachusetts. 1S97. 169 Mass. 4S2, 48 N. E. 269,
61 Am. St. Hep. 290.)
Two actions of tort, to recover, under Pub. St. c. 102, § 93. 52
doubled damages for injuries occasioned by a dog. At the trial in
the Superior Court, before Hopkins, J., the defendant was charged as
keeper of the dog, and the plaintiffs contended that the injury occur-
red because the dog rushed into the highway, frightened their horse,
and caused both the plaintiffs, who were husband and wife, and who
were riding together, to be thrown from their carriage.
The plaintiffs' offered evidence tending to show that the dog had
made other attacks upon other teams passing, in a like manner, and
stated that the offer was made with a view to showing that the dog
had made the attack in question. This evidence was excluded; and
the plaintiffs excepted.
The defendant offered evidence tending to show that after the ac-
cident the husband said that it happened through the fault of the
horse, and that the dog did not make an attack upon the horse, or any
demonstration towards him.
Knowlton, J. 53 A question common to both of these cases is
whether it is competent to prove that a dog has a habit of attacking
passing teams, in support of a disputed allegation that he attacked a
passing team on a particular occasion. It is a familiar fact that ani-
mals are more likely to act in a certain way at a particular time if the
action is in accordance with their established habit or usual conduct
than if it is not. There is a probability that an animal will act as he
is accustomed to act under like circumstances. For this reason, when
disputes have arisen in regard to the conduct of an animal, evidence
of his habits in that particular has often been received. Todd v.
Rowley, 8 Allen, 57; Maggi v. Cutts, 123 Mass. 537; Lynch v.
Moore, 154 Mass. 335, 28 N. E. 277. These cases fully cover the
question now presented. They are authorities, not only to the prop-
osition that evidence of habit may be received in such cases, but that
habits may be proved by evidence of the frequent observation of par-
ticular instances. Of similar import, although somewhat different in
the application of the principle, are the later cases of Bemis v. Tem-
ple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254, and Shea v. Fab-
rics Co., 162 Mass. 463, 38 N. E. 1123. We are of opinion that the
evidence should have been admitted. * * *
Exceptions sustained.
'Every owner or keeper of a dos shall forfeit to any person injured by
it double tii'- amount of the damages sustained by him, to be recovered in an
action of tort."
6» Statement condensed and part of opinion omitted.
Sec. 2) conduct 860
CARR v. WEST END ST. RY. CO.
(Supreme Judicial Court of Massachusetts, 1895. 163 Mass. 360, 40 N. E. 185.)
Tort, for personal injuries occasioned to the plaintiff, and for dam-
ages caused to his horses and wagon, by collision with a street car
of the defendant. At the trial in the Superior Court before Mason,
C. J., the jury returned a verdict for the plaintiff; and the defend-
ant alleged exceptions, in substance as follows.
The defendant introduced evidence tending to show that the plain-
tiff was at the time of the collision under the influence of liquor,
and that his condition contributed not only to the accident, but to
the extent of the injury which he claimed to have received therefrom.
One Story, who was conductor of the car and who had been in
the employ of the defendant for fourteen years, testified for the de-
fendant that he saw the plaintiff approaching, and watched him ; that
he acted stupid; that as he raised him up from the street, and when
he was assisting him inside, he could smell his breath ; and that after
the plaintiff sat down in a chair the witness made the remark that
the man was intoxicated.
On cross-examination, the same witness testified that he had his
eye on the plaintiff because he had seen him intoxicated several times
before on the street while on his wagon, and that he had seen him
intoxicated while on his wagon, since the accident.
In rebuttal, the plaintiff called one Hursch, who testified that he had
known the plaintiff as a carter of brick for twenty years, and that
he had employed him for nearly eighteen years.
"Q. Did you ever see Mr. Carr intoxicated? A. Never. He was
a very sober, industrious man, very reliable. Never knew him to be
under the influence of liquor."
To this question and answer the defendant objected, but the judge
allowed them ; and the defendant excepted.
"Q. Now, will you state more particularly as to his habits as to
drink? A. I never knew that he drank a drop in my life. Never
knew him to. He may have drunk, but I never knew him to."'
This question and answer were also objected to by the defendant,
but the judge allowed them; and the defendant excepted.
Holmes, J. The testimony as to the plaintiff's habits was not ad-
missible to contradict the evidence that he was intoxicated at the time
of the accident. Neither was it admissible to meet the testimony
brought out by the plaintiff, on cross-examination, that he had been
seen intoxicated several times before the accident. The latter testi-
mony was immaterial, and the plaintiff was not entitled to contradict
it. McCarty v. Leary, 118 Mass. 509; Shurtleff v. Parker, 130 Mass.
293, 297, 39 Am. Rep. 454; Lamagdelaine v. Tremblay, 162 Mass.
S70 CIRCUMSTANTIAL EVIDENCE (Ch. 5
339, 39 N. E. 38; Alexander v. Kaiser, 149 Mass. 321, 21 N. E. 376;
Harrington v. Lincoln, 2 Gray, 133.
Exceptions sustained. 54
JOSEPH TAYLOR COAL CO. v. DAWES.
(Supreme Court of Illinois, 1900. 220 111. 145, 77 N. E. 131.)
Action on the case for personal injuries alleged to have been caused
by the defendant's engineer in lowering the cage, in which the plain-
tiff was descending into a coal mine, at a rate of speed prohibited
by the statute. The testimony as to the rate of speed was conflicting.
Hand, J. 50 * * * The plaintiff called a number of witnesses
who were employed in the mine, and, over the objection of the de-
fendant, was permitted to prove by them that prior to the plaintiff's
injury the engineer repeatedly lowered the cage, when men were upon
it, into the mine at a rate of speed greatly in excess of 600 feet per
minute. This testimony, it is urged, was inadmissible, as it is said it
was not permissible for the plaintiff to establish that the cage was
lowered at a prohibited rate of speed at the time he was injured, by
proving it was lowered at other times at a rate of speed prohibited
by the statute. If such was the object of the testimony, the objec-
tion to its admission should have been sustained, as the general rule
is that the plaintiff cannot establish the misconduct of the defendant
upon which he bases a right to recover by proving the defendant guilty
of similar acts of misconduct at another time.
This general rule, however, has its exceptions, and we think the
evidence here in question falls within a well-recognized exception to
the general rule and was admissible. The defendant was powerless
to delegate to its engineer the right to lower into its mine said cage,
and thereby relieve itself from liability in case the cage was lowered
at a rate of speed prohibited by the statute, and injury followed, as
the duty to lower the cage at a rate of speed not in excess of 600 feet
per minute was a duty resting upon the defendant, and which could
not be delegated by it to its engineer so as to relieve itself from lia-
bility. Chicago & Alton Railroad Co. v. Eaton, 194 111. 441, 62 N.
E. 784, 88 Am. St. Rep. 161. The engineer, in the lowering of the
cage, stood in the place of and as the representative of the defend-
ant, and his knowledge with reference to the rate of speed at which
the cage was being lowered into the mine at the time the plaintiff
is injured was the knowledge of (lie defendant. In order that the
defendant might be held liable, under the first count, for a willful
a* Bui ee Pennsylvania B. Oo. v. Books, -".7 I'm. 839, 98 Am. Dec. ^-".i
(1868), thai Hi'- Intemperate habits ol .-in employer are admissible i«> prove in-
Ication at the time ol .-'n accident.
go 'j in- Btatemenl has been condensed am] part of opinion omitted.
Sec. 2) conduct 871
violation of the statute in lowering the cage into the mine at a pro-
hibited rate of speed, it devolved upon the plaintiff to establish that
the defendant by its engineer, consciously — that is, knowingly — low-
ered the cage upon which the plaintiff was descending into the mine
at the time he was injured at a rate of speed in excess of the rate
of 600 feet per minute. Carterville Coal Co. v. Abbott, 181 111. 495,
55 N. E. 131; Donk Bros. Coal & Coke Co. v. Peton, 192 111. 41, 61
N. E. 330.
While the fact that the cage was descending into the mine at a rate
of speed prohibited by the statute at the time plaintiff was injured
might afford a presumption that the engineer who controlled the en-
gine that regulated the descent of the cage had knowledge of the rate
of speed at which the cage was descending into the mine, if that
were the only time in the history of the mine when the cage had
been allowed by the engineer to descend into the mine at a rate of
speed prohibited by the statute, the presumption that its unlawful
rate of descent was known to the engineer, and that such excessive
rate of speed was not accidental, would be greatly weakened. If,
on the other hand, the engineer had repeatedly, prior to the injury
of the plaintiff, violated the statute by lowering the cage into the
mine at a rate of speed prohibited by the statute, the presumption
that he knowingly, and therefore willfully, violated the statute by
lowering the cage into the mine at a prohibited rate of speed at the
time plaintiff was injured, would be greatly strengthened. The gist
of plaintiff's action under the first count of the declaration was a will-
ful violation of the statute, which involved proof of a conscious vio-
lation of the statute, and any fact which would establish knowledge
on the part of the engineer that the cage was being lowered into the
mine at an unlawful rate of speed was admissible in evidence, even
though it involved proof of the conduct of the engineer in handling
the cage at times other than at the time plaintiff was injured. * * *
Judgment affirmed.
COMMONWEALTH v. RIVET.
(Supreme Judicial Court of Massachusetts, 1910. 205 Mass. 464, 01 N. E. S77.)
Indictment, found and returned on June 5, 1908, charging the de-
fendant with murdering one Joseph Gailloux at Lowell on Februarv
29, 1908.
In the Superior Court the defendant was tried before Harris and
Hitchcock, J J. The jury returned a verdict of guilty of murder in the
first degree, and the defendant alleged exceptions, raising the ques-
tions which are stated in the opinion as well as others which were
waived or were not argued by the defendant.
On Sunday, March 1, 1908, Gailloux was found dead in a small
872 CIRCUMSTANTIAL EVIDENCE (Ch. 5
office connected with a tinshop of one Daigle in Lowell. At the trial
it appeared, among other things, that the deceased had taken out a life
insurance policy payable to his heirs or legal representatives; the
policy being taken out through the instrumentality of defendant, who
paid the expense of taking the policy and also the first and second
premiums on it. About a month after it was issued it had been assign-
ed to defendant. At the time of the death both the policy and the as-
signment were in defendant's possession. The evidence in regard to
the murder was entirely circumstantial. Other facts appear in the
opinion.
Loring, J. 56 * * * Two exceptions to the exclusion of evidence
have been argued together. One of these was to the exclusion of evi-
dence that on one occasion, late in the fall previous to the murder,
the deceased had been found in Daigle's shop, late at night, dead
drunk. The other exception was to the exclusion of evidence that the
deceased was frequently in fights when he was intoxicated, that he was
frequently seen with his face all battered up in some contest he had
had, and that he had been seen within a year before his death "with
a swollen face, black eyes [and] battered face generally."
On inquiry the defendant's counsel disclaimed having evidence that
the defendant knew of the character of the deceased. He also dis-
claimed offering this evidence to show that this killing was done in
self-defense. The case therefore does not come within Com. v. Tir-
cinski, 189 Mass. 257, 75 N. E. 261, 2 L. R. A. (N. S.) 102, 4 Ann.
Cas. 337.
The defendant's argument in support of this exception is that this
was evidence from which the jury could infer that the deceased came
to his death by having got into a fight when drunk. The fact that a
person's habits or character are such that he would be apt to do an act
is not competent evidence that he did the act. Nothing is better settled
than that. Com. v. Worcester, 3 Pick. 462; Ellis v. Short, 21 Pick.
142; Tenney v. Tuttle, 1 Allen, 185; Heland v. Lowell, 3 Allen, 407,
81 Am. Dec. 670; McCarty v. Leary, 118 Mass. 509; Menard v. Bos-
ton & Maine R. R., 150 Mass. 386, 23 N. E. 214; Geary v. Stevenson,
169 Mass. 23, 47 N: E. SOS; Edwards v. Worcester, 172 Mass. 104,
51 N. E. 447; Rex v. Fisher, [1910] 1 K. B. 149.
There is no difference between the usual case where evidence of this
character is offered by the prosecution to prove that the defendant
did the act he is charged with doing and the case at bar where evidence
was offered by the defendant to prove that the deceased did the act in
question and thereby to show that he did not do it. Doing an act can-
not be proved in either case by evidence that from the habits of the
person in question he would be apt to do it. * * *
Exceptions overruled.
to Part of opinion omitted.
Sec. 2) conduct 873
NOYES v. BOSTON & M. R. R.
(Supreme Judicial Court of Massachusetts, 1912. 213 Mass. 9, 99 N. E. 457.)
Tort under St. 1906, c. 463, part 2, § 247, for damages resulting
from the burning on August 12, 1908, of a barn of the plaintiff in
West Boylston alleged to have been caused by fire communicated by
a locomotive engine of the defendant. Writ dated November 20,
1909.
In the Superior Court the case was tried before Irwin, J. The
plaintiff introduced evidence, which in its nature was circumstantial
and which was controverted by evidence of the defendant, tending to
show that the fire was caused by sparks from a locomotive engine of
the defendant.
It appeared that a son of the plaintiff was at home on the day of
the fire, and the defendant offered to show that the son was there
at the time of the fire ; that when he was a young boy he had had a
strong inclination to set fires, and had set several ; that in the autumn
of 1908 several fires occurred within a radius of a mile from the
plaintiff's barn and that the plaintiff's son was very near the place
where such fires took place at the time when they were discovered;
that he was arrested by a constable, and that he admitted to the con-
stable that he set several of these fires ; that the district court of Clin-
ton ordered an examination of the plaintiff's son by two physicians, who
committed him to a hospital on the ground that he had a mania for
setting fires. The defendant did not contend that the alleged admis-
sion to the constable in any way referred to the fire mentioned in the
declaration.
The evidence was excluded subject to an exception by the defendant.
The jury found for the plaintiff in the sum of $2,436.23, and the
defendant alleged exceptions.
Brainy, J. The plaintiff seeks under St. 1906, pt. 2, § 247, to
recover damages for the destruction of a barn with its contents,
alleged to have been caused by fire directly communicated by the loco-
motive engine of the defendant. But if the loss is unquestioned the
parties were at issue as to the origin of the fire. The defendant could
show, by relevant testimony, that it originated from other independent
causes even if the circumstantial evidence introduced by the plaintiff
seems to have been clear and abundant, that the ignition of the roof,
from which apparently the fire spread through the building, must
have been from sparks emitted by the engine. Perley v. Eastern Rail-
road Co., 98 Mass. 414, 96 Am. Dec. 645.
The defendant contends that, if its offer of proof had been admitted
in evidence, the jury would have been warranted in finding the fire
had been set by a son of the plaintiff, or at least sufficient doubt would
have been raised as to its liability to have overcome the burden of
S74 CIRCUMSTANTIAL EVIDENCE (Ch. 5
proof. But in the absence of any direct evidence connecting him with
the occurrence, the defendant endeavored to show, from incidents in
his early life, that he had acquired a disposition which had ripened
into a habit to set incendiary fires whenever the opportunity offered.
A habit of this character is abnormal, and it may be criminal. The
defendant was required to satisfy the presiding judge that the course
of conduct on which it sought to predicate the commission of an
affirmative wrongful act of the character claimed had become so con-
tinuous and systematic that the setting of the fire in question would
follow as a reasonable and probable consequence. Shailer v. Bum-
stead, 99 Mass. 112; Thayer v. Thayer, 101 Mass. Ill, 113, 114, 100
Am. Dec. 110; Com. v. Abbott, 130 Mass. 472, 473; Hathaway v.
Tinkham, 148 Mass. 85, 19 N. E. 18; Lane v. Moore, 151 Mass. 87,
90, 23 N. E. 828, 21 Am. St. Rep. 430; Edwards v. Worcester, 172
Mass. 104, 51 N. E. 447; Wigmore on Ev. §§ 92, 376. If as a young
boy he exhibited a strong inclination to set fires, and while still a
youth did in several instances set them, proof of these instances would
not raise a reasonable presumption that he had destroyed his mother's
property wantonly, even if at the time he is shown to have been living
at home. It would not follow from common experience, that because
on some occasions in the past he may have done a particular thing in
a particular manner, that upon another and different occasion he
would act in the same way. Robinson v. Fitchburg & Worcester
Railroad, 7 Gray, 92, 95 ; Lewis v. Smith, 107 Mass. 334 ; Peverly v.
Boston, 136 Mass. 366, 49 Am. Rep. 37. It is because of this vari-
ability and uncertainty in the manifestations of individual conduct,
even where the circumstances may be more or less uniform, that while
an employe's general reputation for incompetency in the performance
of work for which he has been engaged is admissible, if the employer
knew or by the exercise of reasonable diligence should have known
of it, single instances of carelessness are inadmissible. Cooney v.
Commonwealth Avenue Street Railway, 196 Mass. 11, 14, 81 N. E.
905, and cases cited. The defendant, moreover, if it had been per-
mitted to litigate the likelihood of his conduct by going at large into
proof of alleged instances of previous fires, would have presented
collateral issues which would have seriously embarrassed and preju-
diced the plaintiff, and tended to confuse and mislead the jury. Emer-
son v. Lowell Gaslight Co., 3 Allen, 410, 417; Darling v. Stanwood,
14 Allen, 504, 508; Hill Mfg. Co. v. Providence & New York Steam-
ship Co., 125 Mass. 292, 303; Com. v. Jackson, 132 Mass. 16, 20;
Com. v. Ryan, 134 Mass. 223, 224; Reeve v. Dennett, 145 Mass. 23,
28, 11 N. E. 938; Lane v. Moore, 151 Mass. 87, 90, 23 N. E. 828,
21 Am. St. Rep. 430; Com. v. Hudson, 185 Mass. 402, 70 N. E. 436.
The subsequent incendiary fires for which the son may have been
responsible, as well as his admission of having set some of them, were
occun ■- having no connection with the plaintiff's cause of action.
Com. v. Campbell, 7'Allen, 541, 83 Am. Dec. 705.
Sec. 2) conduct 875
And the further offer that "the district court * * * ordered an
examination by two physicians who committed him to the hospital
on the ground that he had a mania for setting fires" must be con-
strued as an offer of the record of judicial proceedings to which she
was not a party or privy. McDowell v. Connecticut Fire Ins. Co., 164
Mass. 394, 41 N. E. 669. We are therefore of opinion that the judge
in his discretion properly excluded the offer of proof.
Exceptions overruled.
MOFFITT v. CONNECTICUT CO.
(Supreme Court of Errors of Connecticut, 1913. 8G Conn. 527, 86 Atl. 16.)
Wheeler, J. 57 The plaintiff claimed he signaled the motorman
of defendant's northbound trolley car to stop the car ; that the mo-
torman was then looking in his direction, and thereupon the car stop-
ped about opposite the north corner of Main and East Main streets in
New Britain; and, as he was attempting to board the car, it was
started suddenly without giving him a reasonable opportunity to
board it, causing him to be thrown upon the rear platform and to be
injured. The defendant claimed the plaintiff never signaled said car;
that it never stopped at the north corner ; and that the accident never
happened.
Upon cross-examination of plaintiff's witnesses, the defendant at-
tempted to show that the point where the plaintiff's witnesses testified
the car stopped, viz., on said north corner, was not the regular stop-
ping place for cars, but that the regular stopping place was on the
south corner of said streets, at which point there were two white poles
indicating the stopping point. The plaintiff objected to this evidence
and assigns its admission as a principal ground of error.
As here pressed, the objection is that proof of the place of stopping
at other times is not admissible as tending to disprove the plaintiffs
witnesses that the car did in fact stop at the north corner at the time
in question ; that negligence of a motorman existing at one time can-
not be disproved by proof of careful conduct at other times.
It is true that one's negligence on a particular occasion cannot be
proved by showing his negligence on other occasions ; nor can his
freedom from negligence on one occasion be shown by proof of his 1 -
due care on other occasions. Our reports furnish numerous illus-
trations of the application of this principle. Morris, Adm'r, v. East
Haven, 41 Conn. 252, 254; State v. Goetz, S3 Conn. 437, 440, 76 Atl.
1000, 30 L. R. A. (N. S.) 458; Budd, Adm'r, v. Meriden El. R. Co.,
69 Conn. 272, 286, 37 Atl. 683 ; Tiesler v. Norwich, 73 Conn. 199, 201,
47 Atl. 161 ; Gilmore v. Am. T. & S. Co, 79 Conn. 499, 504, 66 Atl.
5T Part of opinion omitted.
376 CIRCUMSTANTIAL EVIDENCE! (Cll. 5
4. These are instances where an act of negligence or the reverse was
sought to be inferred from other acts of negligence or nonnegligence.
The case at bar differs from these cases, and does not fall within the
principle invoked.
This is an attempt to corroborate the testimony of the operators of
the car that it did not stop at the time and place the plaintiff claimed it
did by showing that this place, under the rules of the defendant, was
*. its regular stopping place, but that that was on the opposite side
of the street. The specific question is whether the rules of the de-
fendant railway as to where its cars must stop are admissible in sup-
port of the testimony of the operators of the car that the car did not
stop at the point claimed, but at the point named by the rules.
In the ordinary affairs of life in a conflict over a matter of fact
between two persons, men would regard the fact that one of the per-
sons was in duty bound to act under a certain rule which was equally
obligatory upon a number of men and important in the prosecution of
a quasi public business, as some evidence in support of his contention
that he in fact acted under the rule. It would be thought to make
more probable his claim. An evidential fact which men generally
would act upon in the affairs of their life will logically aid in deter-
mining a legal issue, and ought to be held legally relevant and of pro-
bative value. And this is the test of legal admissibility. Locke v.
Kraut, 85 Conn. 489, 83 Atl. 626.
If this offer be held in reality to be an attempt to prove the practice
of the defendant in stopping its cars in accordance with its rule, it
would still be admissible. We should then have a systematic and in
variable regularity of conduct upon the part of a large body of op-
eratives ; and such a course of conduct would tend to prove the custom
of the defendant to stop its cars at the particular point designated by
I the rules. A systematic course of conduct on the part of a body of
' men operating a railway, acting for a common purpose resulting in
a custom in not stopping at a given point, may likewise be shown,
since a negative custom may be equally effective in supporting a fact
as an affirmative one. Wigmore on Ev. §§ 92, 376, 379. This prin-
ciple applies to acts negligently done or omitted, not to those willfully
done. State v. Railroad, 52 N. H. 549.
The authorities are not uniform ; but we think the strong tendency
is toward the conclusion we have reached, admitting evidence of a
like character, tending to establish a systematic course of conduct
ripening into a fixed habit or a definite custom.
The liberalization of courts in more recent times in the application
of the rules of evidence has been due in no small measure to the more
uniform enforcement of that first of all rules of evidence that "any
fact may be proyed which logically tends to aid the trier in the de-
termination of the issue," and to the better appreciation of the prac-
tical justice of making the logical proof of the courtroom conform
Sec. 2) conduct 877
to the logical proof of the everyday world. A reference to a few of
the more modern cases 68 will indicate the tendency. * * *
"When there is a question whether a particular act was dene, the
existence of any course of office or business, according to which it
naturally would have been done, is a relevant fact." Hall v. Brown,
58 N. H. 93; Jackson v. Grand Ave. Ry. Co., 118 Mo. 199, 24 S. W.
192 ; McGee v. Mo. Pac. Ry., 92 Mo. 220, 4 S. W. 739, 1 Am. St. •
Rep. 706.
Cases in our own reports which seem to conflict with the rule here
announced may, we believe, be distinguished, except in one instance
(Laufer v. Traction Co.) they were not instances of fixed habit or
custom. The testimony of Mr.^Victory, excluded in Laufer v. Bridge-
port Tr. Co., 68 Conn. 475, 37 Atl. 379, 37 L. R. A. 533, should, un-
der our present application of this rule, have been admitted.
For the purpose of rebutting the testimony of the defendant that
cars did not stop at the point claimed by him, the plaintiff offered to
prove that a car of the defendant had stopped at this point a year
after the accident. This was remote and unconnected with an offer
to prove other instances of stopping at times nearer to the time of the
accident, or of an offer to prove a practice. The conclusion of the
offer was within the discretion of the court. * * *
No error.
STEWART v. SMITH.
(Supreme Court of Wisconsin, 1S96. 92 Wis. 7G, 65 N. W. ir.C.)
The action is for the seduction of the plaintiff's unmarried daugh-
ter, Lizzie. The claim of the plaintiff is that his daughter, who was
24 years of age, was his housekeeper, and had general charge and
management of his household affairs, and performed most of the
work of caring for the household; that she was of chaste character;
that some time about the month of June, 1893, the defendant seduced
the said Lizzie, and had sexual intercourse with her at many different
times between the date of the seduction and the subsequent month
of December, whereby she became pregnant by the defendant, and
gave birth to a child on May 5, 1894, by reason of which seduction
and pregnancy the plaintiff has been greatly damaged. The answer
was a general denial, and an allegation that before the alleged se-
duction the said Lizzie was a woman of unchaste character and rep-
utation. There was verdict and judgment for the plaintiff, from
which the defendant appeals. Reversed.
08 In the omitted passage the court reviewed Maisels v. Dry Dock, E. B. &
B. St. R. Co., 10 Am>. Div. 391, 45 N. Y. Supp. i iis<>7>; Alexandria & F. B.
Co. v. Herndou, 87 Va. 193, 12 S. E. 289 (IS90) ; Hall v. Brown, 5S N. H. 93
(1S77).
87S CIRCUMSTANTIAL EVIDENCE (Cll. 5
Newman, J. 89 (after stating the facts). The errors alleged are, for
the most part, in the admission and rejection of evidence, and to the
charge of the court. It will be necessary to consider some of the
more important. They relate, in the main, to the rejection of evi-
dence tending to show a want of chastity in the woman, Lizzie Stewart,
at the time of her alleged seduction. This class of evidence is proper
to be received for the purpose of mitigating the damages ; for, surely,
if she was unchaste previously to defendant's intercourse with her,
the plaintiff would be less damaged than if a previously chaste daugh-
ter had been debauched. Besides, it tends to make doubtful that the
defendant is responsible for the pregnancy and the loss of service
consequent upon it. Want of previous chastity may be proved by
general reputation and specific acts of unchastity, not only, but by
evidence which tends to show impure conversation, and improper and
familiar association with men. West v. Druff, 55 Iowa, 335, 7 N.
W. 636. The court in that case very cogently remarks, "Conversa-
tions, acts, and associations are manifestations of character, and con-
stitute the true index of the heart." Even acts of an equivocal char-
acter may be competent to be received on this question ; for it is the
province of the jury to determine what such acts indicate, and to give
to them their proper value, in the light of all the circumstances. This
principle seems to have been recognized by the trial court, but he seems
to have applied it with exceeding illiberality towards the defendant.
The following are some examples :
The defendant asked the witness James Hayes, who was a hack
driver, this question : "I will ask you, Mr. Hayes, if at any time prior
to June, 1893, you drove Lizzie in your hack, in company with a cer-
tain gentleman, whose name you need not mention, with the curtains
of the hack closed, and drove around the city, going to no particular
place?" This question was objected to as "incompetent, irrelevant,
and immaterial." The court asked, "How is this material?" Defend-
ant's counsel, "As evidence tending to show a lack of chastity." The
objection was sustained. The proposed testimony certainly tended to
show that the young woman had placed herself in a compromising sit-
uation, and an improper association with a man, indicating, at least,
levity of character. It was a situation unusual to modest women, and
subject to animadversion. It was evidence proper to be considered by
the jury on the question of her previous chastity, in the light of all
the evidence on that question. * * *
A witness, W. H. Nichols, who testified that in the summer of 1893,
and previous to August of that year, he saw the woman, Lizzie, ac-
companied by a young woman of the town, several times, in the eve-
ning and nighttime, going to certain rooms, over the store of his em-
ployer, which were kept by young men who "didn't live there, and
didn't have any place of business there," and "were not club rooms."
co Part of opinion omitted.
Sec. 2) conduct 870
To a question whether he knew the reputation of the young woman
who accompanied her on these occasions, an objection was interposed,
when the court remarked: "I am expecting you to bring this within
the rule I have announced, — the rule which would be in vogue in
bastardy cases, as to access. It has no bearing upon chastity." To
this remark exception was taken. The witness then answered that he
had heard people say that she was "a regular loose character, — what is
commonly, known as a 'chippie.' " It is not obvious why this evidence
had "no bearing upon chastity." It related acts of a compromising
character, with other men, at about the time of her alleged seduction
by the defendant. Lizzie is sure that the seduction took place in the
month of June. That is, of course, only her estimation of date, for no
close date for it is fixed. It was not an event of which the date was
noted, for certainty of remembrance; and there is a margin to be
allowed for errors in the comparison of events, in order to fix the
date even approximately. And, if the acts narrated by the witness
really occurred at about the uncertain date of an actual seduction,
it would be a fair question for the consideration of the jury whether
they transpired before it, and were not fair indicia of real character
at its actual date. * * *
It is evident, from the whole case, that the defendant did not have
a fair trial. The judgment of the circuit court is reversed, and the
cause remanded for a new trial. 60
CONSOLIDATED COAL CO. OF ST. LOUIS v. SENIGER.
(Supreme Court of Illinois, 1S99. 179 111. 370, 53 N. E. 733.)
Cartwright, J. 61 * * * The suit is for damages on account of
injuries received by plaintiff while employed in defendant's coal mine,
at Staunton, 111. On the morning of May 14, 1897, the plaintiff, with
seven ethers, got into the cage at the top of the shaft, which is 305
feet deep, to be lowered into the mine. After the cage had descended
halfway, as it passed the other cage, which was ascending, it began
to run down very rapidly ; and, after being checked for an instant, it
continued downward at great speed to the bottom of the shaft, injuring
the plaintiff. The first count of the declaration charged that the in-
jury was occasioned by defendant's failure to provide a sufficient brake
on the drum to hold the cage in case the machinery gave out. The sec-
ond charged that it was negligent in the employment of an incompetent,
so Compare Verdi v. Donahue, 91 Conn. 448, 90 Atl. 1041 (1917), that in an
action for malicious prosecution evidence of plaintiff's general reputation as
a peaceable, orderly citizen could not be rebutted by proof of specific acts.
See, also, Scott v. Sampson, L. R. 8 Q. B. D. 491 (1SS2), where the plaintiff's
character was important on the question of damages.
si Part of opinion omitted.
8S0 CIRCUMSTANTIAL EVIDENCE (Ch. 5
inexperienced, and intemperate engineer, who was placed in charge of
the engine. * * *
Various witnesses were asked by plaintiff's counsel as to what the
manner of the engineer was in handling the cage, or letting men down
or bringing them up from the mine ; and answers were given, against
objection of defendant, showing that he frequently ran the machinery
so fast that it was impossible to properly control the cage by a brake ;
that sometimes he would let the cage almost drop, and sometimes seem
to catch it before it reached the bottom, and then let it go bumping to
the bottom ; that sometimes he would run it up swiftly above the land-
ing ; that sometimes the men could hardly stand on the cage, and stood
on tiptoe to lessen the shock and internal jar; that the cage would
strike the bottom of the shaft very hard, so that the bread would
jump out of their pails ; and that sometimes, in landing the cage at the
bottom, the men would be thrown off or knocked off. It is objected
that the court erred in permitting this testimony to go to the jury.
If we understand counsel, the claim is — First, that the incompetency
of the engineer could only be shown by a general bad reputation for
incompetency; and, secondly, that the fact of incompetency could not
be proved by his conduct, because it contradicted his certificate of
competency given him by the state board of mine examiners.
We do not think the evidence incompetent on either ground. It
is true that a competent engineer may be negligent on a particular oc-
casion," and not be above the ordinary frailties of human nature, and
that incompetency is not shown by some particular act of negligence ;
and yet one who knows how to run and handle an engine properly, and
who has the physical strength to do so, cannot be said to be competent
for the position of engineer, if he is habitually imprudent, careless,
and reckless. One is incompetent who is wanting in the requisite quali-
fications for the business intrusted to him. Rasor was incompetent
for the business of engineer, if he was wanting in the qualifications re-
quired for the performance of the service, whether arising out of a
lack of knowledge or capacity, or through imprudence, indolence, or
habitual carelessness; and evidence which tended to bring before the
jury his particular qualities in that respect, and to show his fitness or
unfitness for the position of engineer, was competent. The occur-
rences were sufficiently frequent to answer such a requirement, and
they were connected with other evidence tending to show that defend-
ant had knowledge of his actions, and the manner in which he handled
the cage and the men. Stone Co. v. Whalen, 151 111. 472, 38 N. E. 241,
42 Am. St. Rep. 244. * * *
Judgment affirmed. 02
MBut see Frazler v. Pennsylvania "R. Co., 38 Pa. 10 1 (I860), nnto, p. 656,
and cases there cited; Park \. New York Cent. k v n. R. R. Co., 155 X. Z. 215,
■i'J N. E. 674, CM Am. St. Rep. 003 (lS'JS), ante, p. 058.
Sec. 2) conduct 881
ZUCKER v. WHITRIDGE, RECEIVER.
(Court of Appeals of New York, 1912. 205 N. Y. 50, 98 N. E. 209, 41 L. R. A.
[N. S.] 083, Ann. Cas. 191.-JI), 12.10.)
Vann, J. g3 Third avenue in the city pf New York, running nearly
north and south, crosses Eighteenth street almost at right angles. The
defendant has two railroad tracks laid on the surface of the avenue at
the point where it crosses the street ; the easterly track being used for
cars going north, and the westerly for those going south. On the 18th
of December, 1908, at about half past 8 in the evening, the plaintiff's
intestate, while walking easterly on the northerly crosswalk of
Eighteenth street, as he was about to step over the westerly rail of the
north-bound track, was struck by a north-bound trolley car and fa-
tally injured. In this action, brought by his administratrix under
the statute, the jury found a general verdict in her favor, and the
Appellate Division affirmed the judgment entered thereon; two of the
justices dissenting.
As the negligence of the defendant is not now denied, the primary
question is whether the decedent was negligent as matter of law
This question depends on the testimony given in behalf of the plain
tiff; for no witness was called by the defendant. * * *
One other question requires attention on account of its importance
and novelty. A witness who had known the decedent for eight years
and during that period had walked with him through the streets of
the city of New York, and had crossed railroad tracks with him, wa.<
asked by the plaintiff: "State what you observed as to his manner of
crossing railroad tracks while in your company." Objection was mado
to the question as incompetent and immaterial ; but it was overruled
and' an exception noted. The witness then answered: "When we
were about to cross railroad tracks, he usually looked to the right and
to the left of him, and put a restraining hand on my arm before cross-
ing, to make sure that there were no vehicles of any kind coming.'
The defendant's counsel moved to strike out the answer as incompe-
tent and not relevant to the issues in the case; but the motion was
denied and an exception taken. * * *
In some states such evidence is regarded as competent. In New
Hampshire it was held that the fact that a person, killed at a grade
crossing, customarily stopped, looked, and listened for trains at that
point is competent to prove similar conduct at the time of the injury,
in the absence of testimony by any eyewitness as to his behavior on
that occasion. Tucker v. Boston & Maine R. R. Co., 73 N. H. 132,
59 Atl. 943. No argument was made, but the bare conclusion an-
nounced ; earlier cases being cited which involved the custom of those
as Tart of opinion omitted.
IIint.Ev. — 50
S82 CIRCUMSTANTIAL EVIDENCE (Cll. 5
running trains and of those injured at railroad crossings with refer-
ence to general care or carelessness. State v. Railroad, 52 N. H. 528,
549; Smith v. Boston & Maine R. R. Co., 70 N. H. 53, 82, 47 Atl.
290, 85 Am. St. Rep. 596. The argument used in the earlier case was
that "it would seem to be axiomatic that a man is more likely to do or
not to do a thing, or to do or not to do it in a particular way, as he
is in the habit of doing or not doing it. But this must be understood
of acts which are done or omitted to be done without any particular
intent or purpose to injure one." * * *
In Illinois evidence that the deceased was "habitually cautious and
temperate" was held to be competent, where there was no eyewitness
of the accident, but otherwise not. Chicago, R. I. & P. R. R. Co. v.
Clark, 108 111. 113, 117.
On the other hand, similar evidence has been held incompetent in
several different states, as follows: In Wisconsin, to show that the
person injured "was an habitually careless man" (Propsom v. Leatham,
80 Wis. 608, 612, 50 N. W. 586, 587) ; in Pennsylvania, that the de-
ceased "had made a practice of jumping from the elevator while in
motion" (Baker v. Irish, 172 Pa. 528, 531, 33 Atl. 558); in Connecti-
cut, that the intestate "was a careful and prudent driver" (Morris v.
Easthaven, 41 Conn. 252) ; in Illinois, "that the deceased was in the
habit of jumping on trains" (Peoria & Pekin Co. v. Clayberg, 107 111.
644, 648) ; in Iowa, in a case where there was some evidence that
the deceased was asleep in his buggy when he drove on the track,
"that he had been found asleep in his buggy on other occasions" (Dal-
ton v. Chicago, R. I. & P. R. R. Co., 114 Iowa, 257, 259, 86 N. W..
272, 273) ; in Maine, "that, in the opinion of those who knew the de-
ceased well, he was a cautious and careful man," no witness having
seen the accident (Chase v. Maine Cent. R. R. Co., 77 Me. 62, 65, 52
Am. Rep. 744) ; in Massachusetts, specific instances of want of care
in the engineer in his business of running trains within three months
of the injury, before or after (Robinson v. Fitchburg & Worcester R.
R. Co., 7 Gray, 92, 95) ; also "previous specific acts of negligence on
the part of defendant's engineer known to its superintendent." Con-
nors v. Morton, 160 Mass. 333, 335, 35' N. E. 860.
Professor Wjgmqre seems to appreciate "the probative value of a
person's habit or custom as showing the doing on a specific occasion
of the act which is the subject of the habit or custom;" but he points
out difficulties which arise in connection with such evidence. Section
Thus he say-: "Can there be a habit of not doing?" Section
97. "Is it possible to believe that careless action can ever be any-
thing more than casual or occasional? If it is, are we not really pred-
icating a careless disposition, rather than a genuine habit, and then
are we not violating the rule againsl character in a civil action in
employing such evidence? These doubts serve to explain the prece-
dents that exclude such evidence; but it would seem that the doubts
arc w>[ always well founded, and that such evidence is often of pro-
Sec. 2) conduct 883
bative value, and is not attended by the inconveniences of character
evidence." 1 Wigmore on Evidence, § 97. * * *
The weight of authority seems to be against admitting evidence of
general conduct under proven circumstances to show conduct of the
same kind under similar circumstances on a particular occasion, when
there were eyewitnesses of the occurrence, including the person in-
jured, if he survived the accident. We are not now called upon to
decide whether evidence of the habits of a decedent in crossing rail-
roads is competent when there is no eyewitness of the event. In
this case, there were four witnesses who saw what happened, and de-
scribed the conduct of the deceased as he walked to his death. A ques-
tion of evidence, to some extent, is a question of sound policy in the
administration of the law. Sometimes it is necessary to weigh the
probative force of evidence offered, compare it with the practical in-
convenience of enforcing a rule to admit it, and decide whether, as
matter of good policy, it should be admitted. Uniform conduct under
the same circumstances on many prior occasions may be relevant as
tending somewhat to show like conduct under like circumstances on
the occasion in question. All relevant evidence, however, is not com-
petent. Hearsay, although relevant, is held incompetent from public
policy, because there is safer and better evidence to establish the fact.
Parol evidence to vary a written agreement is relevant, but incompe-
tent, because sound policy requires that the writing should be pre-
sumed to express the final agreement of the parties.
So, assuming the evidence in question to be relevant, I think it
should be held incompetent under the circumstances, because its pro-
bative force does not outweigh the inconvenience of a multitude of
collateral issues, not suggested by the pleadings, the trial of which
would take much time, tend to create confusion and do little good.
As was said by Chief Justice Peters, in Chase v. Maine Central R. R.
Co., supra: "In many litigations, under such a test, there would
arise a wager of character which would as unfairly settle the dis-
pute as did formerly the wager of battle." The rule of -the average
life is care, or else it would not long continue, yet the average man
is conscious that he is not always careful; and hence habit on gen-
eral occasions is uncertain evidence of care on a particular occasion.
It is not enough of itself to establish the fact sought to be proved,
and at the most simply bears upon the probability. Habit is an infer-
ence from many acts, each of which presents an issue to be tried,
and necessarily involves direct, and naturally invites, cross examina-
tion. The circumstances surrounding each act present another issue,
and thus many collateral issues would be involved which would not
only consume much time, but would tend to distract the jury and lead
them away from the main issue to be decided. From the want of
previous notice, the other party would not be prepared to meet such
evidence ; and after all the testimony of this character was in the
fact would remain that, as no one is always careful, the subject of
884 CIRCUMSTANTIAL EVIDENCE (Cll. 5
inquiry, although careful on many occasions, might have been care-
less on the occasion in question.
We are of the opinion that the evidence objected to should be held
incompetent, and that, under the circumstances, the error in admitting
it should not be disregarded as harmless ; for it may have led to the
verdict.
The judgment should be reversed and a new trial granted, with costs
to abide the event.
Cullen, C. J., and Gray, Hiscock, Chase, and Collin, JJ., con-
cur. YVillard Bartlett, J., concurs on second ground discussed
in the opinion.
Judgment reversed, etc.
SECTION 3.— MISCELLANEOUS FACTS
PIGGOT v. EASTERN COUNTIES RY. CO.
(Court of Common Pleas, 1S46. 3 C. B. 229.)
The cause was tried before Alderson, B., at the last assizes for the
county of Essex, when the following facts appeared in evidence : The
plaintiff was the occupier of a farm called Porter's farm, abutting upon
the Eastern Counties Railway in the parish of Boreham, about midway
between Witham and Chelmsford. . On the 27th of August last, be-
tween the hours of twelve and one, at noon, the thatch of a cart-lodge
or shed in the plaintiff's farm-yard, distant about forty-five feet from
the nearest line of rails, was immediately after the passing of the
mail-train from London to Colchester, observed to be on fire; and,
notwithstanding every exertion, on the part of the plaintiff and those
in his employ, to extinguish it, the fire communicated with several
other farm.-buildings and farming implements, ahd totally destroyed
them. At the time of the accident there was a strong wind blowing
from the direction of the railway towards the plaintiff's premises;
and the train was proceeding at an ordinary speed, viz. twenty-five
miles an hour.
In order to show that the fire was probably caused by sparks or
Particles of ignited coke emitted from the funnel or chimney, or from
the fire box of the engine by which the train was being propelled, the
plaintiff's counsel pro] 1 to ask a witness whether he had not on
other occasions observed sparks or ignited matter to proceed from
ines of the defendants passing along the line adjoining the plain-
tiffs farm.
It was objected, on the part of the defendants, that this was not a
proper question, inasmuch as it was not competent to the plaintiff in
this case to prove the emission of sparks or ignited matter from other
Sec. 3) MISCELLANEOUS FACTS 885
engines, passing the spots on other occasions, without showing them
to have been under the care of the same driver, driven at the same
speed, with the same number of carriages and passengers, and of the
same construction as the engine in use at the time of the acci-
dent. * * *
The learned baron being of opinion that the question might properly
be put, the witness stated, that he had frequently seen pieces of ignited
coke fall from the lower part of the engine, (the fire-box,) but not
from the chimney, the day-light rendering it difficult, if not impos-
sible, to see sparks issuing thence. Other witnesses also proved that
they had frequently seen sparks and small particles of coke, about the
size of a hazle-nut or a walnut, proceed from the chimneys of the com-
pany's engines when passing along the line at dark, and fall in an ig-
nited state on the plaintiff's premises, near the buildings in question ;
and that it sometimes happened that pieces of ignited coke falling from
the fire-box on to the driving wheels of the engine, were thrown by
them to a considerable distance. * * *
The jury returned a verdict for the plaintiff. The amount of dam-
ages was referred.
Shee, Serjt., having, in Easter term last, obtained a rule nisi for a
new trial, on the grounds that the answer to the question objected to
at the trial was improperly received, and that the verdict was against
the weight of evidence — the learned judge reported to the court, that
he held the evidence admissible for the purpose of ascertaining wheth-
er or not sparks or ignited particles of coke could be thrown to so
great a distance from the line as the spot in question.
Tixdal, C. J. 64 * * * With respect to the evidence that was
objected to, I think it clearly was admissible for the purpose for which
it was received, viz. to ascertain the possibility of fire being projected
from the engine to such a distance from the railway as the building
in question. Whether or not it was admissible for any other pur-
pose, it is unnecessary to inquire.
Coltman, J. I am of the same opinion. It appears, from the re-
port of the learned judge, that the evidence in question was admitted,
not for the purpose of showing a general habit of negligence on the
part of the company, but to show that the injury might have been
caused in the way suggested. It appears to me that the jury might
reasonably infer that the fire was occasioned by sparks from the en-
gine, and that the fact of the buildings being fired by sparks emitted
from the defendants' engine, established a prima facie case of negli-
gence, which called upon them to show that they had adopted some
precautions to guard against such accidents. None, however, appeared
to have been attempted.
Maule, J. I also am of opinion that this rule should be discharged.
It was obtained on two grounds — first, that certain evidence was im-
«« Statement condensed and part of opinion, Tindal, C. J., omitted.
SS6 CIRCUMSTANTIAL EVIDENCE (Ch. 5
properly received at the trial — secondly, that the evidence did not war-
rant the verdict. The evidence objected to was, that other engines
used on the defendants' line, of the same description as that which was
said to have caused the injury here, had on various other occasions
been seen to throw particles of ignited matter to a distance from the
lines as great or greater than the spot in question. The matter in is-
sue was, whether or not the plaintiff's property had been destroyed by
fire proceeding from the defendants' engine: and involved in that
me was the question whether or not the fire could have been so
caused. The evidence was offered for the purpose of showing that it
could: and for that purpose it was clearly material, and admissible.
As to the other point, it appears that the plaintiff was possessed of
certain farm-buildings adjoining the railway, and that, in consequence
of the sort of management adopted by the company, fire was thrown
from a passing engine upon those buildings, and destroyed them. I
am far from saying that it is impossible that this could have occurred
without negligence on the part of the company. But it at least affords
a strong presumption of negligence, in the absence of evidence to
show that something had been done by the company to lessen the
chances of danger. It appeared that no steps of that sort had been
taken, and that the company might have in a great measure prevented
the emission of ignited matter, by using guards of wire, or perforated
plates, as suggested by Professor Farey, or by employing engines of
larger power. Upon the whole, I think the verdict would have been
wrong had it been the other way.
Rule discharged.
SHELDON v. HUDSON RIVER R. CO.
(Court of Appeals of Now York, 1856. 14 N. Y. 218, 67 Am. Dec. 155.)
DENIO, C. J. 05 The plaintiff owned and possessed a building, used
as a storehouse, in Greenburgh, Westchester county, standing on the
easterly side of the defendants' railroad, and about sixty-seven and
one-half feet from the track. It was in the charge of two of the plain-
tiff's servants. The outer doors were kept locked, and no fire was
used in it. On the 7th February, 1852, it took fire and was consumed.
It was proved that, about flwenty-five minutes before the fire was dis-
covered, a train of cars of the d< fendants, drawn by a locomotive en-
gine called the "Oneida," passed the place. On the first floor of the
building then a parcel of shavings and a quantity of lumber, and
some of the glass in the windows of thai story had been broken. As
I understand the testimony, the plate where the fire 'was first seen
was on this floor, and not far from one of the windows. I taving prov-
ed these facts, and that the day On which the lire took place was
01 pari ol opinion ol Hubbard, J., omltt< d.
Sec. 3) MISCELLANEOUS FACTS 887
windy, the direction of the wind being toward the building, and the
persons in charge having sworn that no person, to their knowledge,
had been in it during that day, the plaintiff proposed to prove, by a
witness who lived close to the railroad and about one-fourth of a mile
from the building, that shortly before it was burned he had seen
sparks and fire thrown, from the engines used by the defendants in
running their trains, through the witness' premises, a greater distance
than this building stood from the track of the railroad, and that he
had picked up from the track after the passage of the trains lighted
coals more than two inches in length. The evidence was objected to
by the defendants' counsel and excluded by the court. The plaintiff's
counsel excepted. The plaintiff also gave evidence which, as his
counsel insists, tended to show that the engines used by the defend-
ants lacked some apparatus which was in use upon some other loco-
motive engines, and which rendered the latter less liable to communi-
cate fire to substances at the side of the road than those which were
without that apparatus. The judge, in the first instance, denied a mo-
tion made by the defendants for a nonsuit ; but after the defendants
had proceeded at some length in the examination of witnesses in their
behalf, he stopped the further examination of a witness and nonsuited
the plaintiff.
It is argued by the defendant's counsel that the evidence offered
and rejected was too remote and indefinite to have a just influence
upon the particular question in issue in the case ; that it did not refer
to any particular engine, and that it may be that the one which ran
past the plaintiff's premises, just before the discovery of the fire, was
quite a different one from those which scattered fire on the occasion
to which the evidence offered would apply. This argument is not
without force ; but at the same time I think it is met by the peculiar
circumstances of this case. These engines run night and day, and
with such speed that no particular note can be taken of them as they
pass. Moreover, there is such a general resemblance among them,
that a stranger to the business cannot readily distinguish one from
another. It will, therefore, generally happen that when the property
of a person is set on fire by an engine, the owner, though he may be
perfectly satisfied that it was caused by an engine, and may be able
to show facts sufficient legitimately to establish it, yet he may be ut-
terly ignorant what particular engine, or even what particular train
did the mischief. It would be, practically, quite impossible by any
inquiries to find out the offending engine, for a large proportion of
those owned by the company are constantly in rapid motion. The
business of running the trains on a railroad supposes a unity of man-
agement and a general similarity in the fashion of the engines and
the character of the operation.
I think, therefore, it is competent prima facie evidence, for a person
seeking to establish the responsibility of the company for a burning
upon the track of the road, after refuting every other probable cause
SS8 CIRCUMSTANTIAL EVIDENCE (Cll. 5
of the fire, to show that, about the time when it happened, the trains
which the company was running past the location of the fire were so
managed in respect to the furnaces as to be likely to set on fire ob-
jects not more remote, than the property burned. It is presumed to
be in the power of the company, which has intimate relations with all
its engineers and conductors, to controvert the fact sworn to if it is
untrue, or, if true in a particular instance, that it was not so in respect
to the engines which passed the place, at a proper time, before the oc-
currence of the fire. The effect of the evidence would only be to shift
the onus probandi upon the company, and that, under the circumstances
of this case, seems to me to be unavoidable. The rule respecting the
onus often depends upon the special circumstances of the case, and it
not unfrequently happens that a party is obliged to establish a negative
proposition. Cow. & Hill's Notes, 490, and cases. For instance, if it
were proved to be universally true that the engines on the defendants'
road scattered fire upon both sides, so as to endanger property as near
the track as this building was, and it was established, as was done in
this case, that the property claimed to have been set on fire by the neg-
ligence of the defendants was actually burned without any known cause
or circumstance of suspicion besides the engines, it would clearly be
incumbent on the defendants to show that they were not the cause.
The present case is only less strong in degree. It was offered to be
shown that a practice on the part of the company, which would have
endangered this building, was indulged in about the time and near the
place where the building was burned. That fact rendered it probable
to a certain degree that the injury was attributable to that cause, but it
left it in the power of the defendants not only to controvert the evi-
dence generally, but to show that the special facts applicable directly to
the occurrence of the fire were such as to overcome the general infer-
ence from the plaintiff's evidence, and avoid the presumption which
that evidence created. I am of opinion, therefore, that the judge erred
in this ruling.
The evidence excluded had a bearing upon both branches of the case
which the plaintiff undertook to establish. It not only rendered it
probable that the fire w r as communicated from the furnace of one of the
defendants' engines, but it raised an inference of some weight, that
there was something unsuitable and improper in the construction or
management of the engine which caused the fire.
It is unnecessary to express an opinion upon the case as it stood,
without the evidence of which the plaintiff was deprived. It may be
that, when the case is tried upon the principle indicated, it will present
no question or a very different one from that which is now before us.
The judgment must be reversed, and there must be a new trial.
Hubbard, J. * * * The theory on the trial was that the sparks
or cinders causing the fire originated from the smoke-pipe or ash-pan
the engine "Oneida," attached to a train of passenger cars which
passed about twenty five minutes before the fire was discovered. No
Sec. 3) MISCELLANEOUS FACTS 889
other engine passing about that time, it may be assumed, for the pres-
ent purpose, that if the defendants are responsible at all, the liability-
is chargeable to the "Oneida" as the offending engine. It was not
proposed to show, on the trial, that sparks and cinders, capable of ig-
nition, had been seen, on other occasions, to issue from the "Oneida."
Such evidence would have been clearly admissible, I think, from the
necessity of the case. It generally or frequently happens, as may have
been the fact in this case, that engine sparks cause fire, without the
sufferer being able to prove the fact by positive testimony. Circum-
stantial evidence must, of necessity, be resorted to or injustice must be
suffered, without redress, in very many instances.
The proof offered and rejected related to the emission of igneous
matter by the defendants' engines generally, without designating any
one in particular. This evidence, I think, was competent, and should
have been received upon the proposition whether the defendants caused
the fire. It was a primary fact to trace the fire to the defendants, as
a ground of liability. There is no pretense in this case that the con-
struction of the "Oneida," as it respects the emission of sparks or cin-
ders, differed from that of every other engine used by the defendants
on their road. It must follow, therefore, that under the same circum-
stances, the same amount of sparks and coals of fire would issue from
every other engine as from the "Oneida." The proof offered was,
therefore, practically the same as though it had been proposed to show
that the "Oneida" frequently or generally made emissions when run-
ning at the usual speed.
The competency of this evidence has been directly decided in the
English Court of Common Pleas. Piggot v. The Eastern Counties
Railway Co., 10 Jurist, 571 ; Aldridge v Great Western Railway Co.,
3 Man. & Gr. 515. These cases, upon this point, are well decided. The
principle is essential in the administration of justice, inasmuch as cir-
cumstantial proof must, in the nature of things, be resorted to, and inas-
much as the jury cannot take judicial cognizance of the fact that loco-
motive engines do emit sparks and cinders which may be borne a given
distance by the wind. The evidence was competent to establish certain
facts which were necessary to be established in order to show a possible
cause of the accident, and to prevent vague and unsatisfactory sur-
mises on the part of the jury. * * *
Judgment reversed.
COLLINS v. NEW YORK CENT. & H. R. R. Co.
(Court of Appeals of New York, 1SSS. 109 X. Y. 243. 16 N. B. 50.)
Peckiiam, J. 68 The plaintiff sought to recover from the defendant
damages which he sustained from the loss of certain property by fire
which he alleged was caused by the negligence of defendants in permit*
«« Part of opinion omitted.
890 CIRCUMSTANTIAL EVIDENCE (Ch. 5
ting sparks from one of their engines to escape, the result of which
was the fire in question. Plaintiff is a farmer residing near La Salle,
county of Niagara, and his property lies contiguous to defendant's
road-bed. The Erie Railway runs parallel with the defendant's near
the plaintiff's premises, and for some distance east and west of them.
It is alleged that this fire was set by defendant's engine No. 113. It
appeared in evidence that there was an Erie train which passed plain-
tiff's premises a short time prior to defendant's engine No. 113, and
the claim was made on the part of defendant that the fire in question
was set by sparks from the Erie engine. It was claimed on the part
of the plaintiff that the spark-arrester on defendant's engine was out
of order, and had been negligently allowed to remain out of order for
some time, in consequence of which larger sparks than could have
otherwise escaped were emitted from it, and that such sparks remain-
ed alive longer than smaller ones, and that they were the cause of the
damage in question. * * *
Evidence was given on the part of the plaintiff, under objection by
defendant, of the emission of sparks from this same engine, No. 113,
of a very large size, several months after the happening of the fire in
question. At the time of its admission there was no proof in relation
to the manner of the construction of that engine. The subsequent
proof showed pretty clearly that the plan of its construction was such
that if it were in good order no such sized sparks could be emitted
from it. If sparks the size described were emitted from, this engine
several months after the fire in question, it would seem quite clear that
they came through the spark-arrester by reason of its being out of
repair. In order to permit evidence such as this, of what happened
six months after the fire, it would be necessary to show, either that
through the fault of its construction sparks of that size could be
emitted, or else that the engine was in the same condition of repair
that it was when the fire in question occurred.
As we have said, the evidence is pretty clear that the plan of con-
struction would not permit sparks of that size to escape, and there-
fore, the more important it would be to show — if such evidence is to
be admitted — that the engine was in the same condition that length of
time after the happening of the fire that it was in when the fire
occurred. It will rest with the trial court upon the new trial to satis-
fy itself upon this state of things before permitting evidence of that
nature to be given. * * *
Judgment reversed.
Sec. 3) MISCELLANEOUS FACTS 801
FIRST NAT. BANK OF HOOPESTON v. LAKE ERIE & W.
R. CO.
(Supreme Court of Illinois, 1S0S. 174 111. 36, 50 N. E. 1023.)
Magruder, J. 67 There is only one question in this case which
counsel for appellant press upon our attention, and that question is
whether or not the court below erred in refusing to allow appellant
to show in rebuttal that other fires had been set by appellee's engines at
other times in the immediate vicinity of the elevator both before and
after it was destroyed. The engine or locomotive which was alleged to
have caused the fire was identified as the engine which drew the freight
train passing the elevator near the noon hour of August 31, 1892. It
is conceded by counsel for appellant that the testimony was confined to
one certain engine of the appellee. In cases of this kind it often hap-
pens that the proof does not identify the particular engine which caused
the loss, but is confined to negligence in the operation and construction
of the engines generally which run on the road. The rule seems to be
settled by the weight of authority that when a fire has been caused by
sparks from a particular locomotive, which is identified, or by one or
the other of two locomotives, "evidence of other fires, kindled by dif-
ferent locomotives, before and after the fire complained of, is not ad-
missible." 8 Am. & Eng. Enc. Law, p. 9, note. The rule is thus stated
by Shearman and Redfield on the Law of Negligence (section 675) :
"When the particular engine which caused the fire cannot be fully
identified, evidence that sparks and burning coals were frequently drop-
ped by engines passing on the same road upon previous occasions is
relevant and competent to show habitual negligence, and to make it
probable that the plaintiff's injury proceeded from the same quarter.
* * * If the engine which emitted the fire is identified, then evi-
dence on either side as to the condition of other engines, and of their
causing fires, has been held irrelevant, but not so if it is not fully identi-
fied."
In Gibbons v. Railroad Co., 58 Wis. 335, 17 N. W. 132, the court
said : "Where there is no proof of what particular engine set the fire,
and the circumstantial evidence is such that there is a strong probability
that some engine on the road did set the fire, then it may be proper to
show that the engines on that road generally emitted sparks, or that
some one or more of them did so at other times and places." In Hen-
derson v. Railroad Co., 144 Pa. 461, 22 Atl. 851, 16 L. R. A. 299, 27
Am. St. Rep. 652, it was said: "Where the injury complained of is
shown to have been caused, or, in the nature of the case, could only
have been caused, by sparks from an engine which is known and identi-
fied, the evidence should be confined to the condition of that engine, its
management, and its practical operation. Evidence tending to prove
defects in other engines of the company is irrelevant, and should be
«t Statement and part of opinion omitted.
892 CIRCUMSTANTIAL EVIDENCE (Cll. 5
excluded. * * * It may therefore be considered as settled in
cases of this kind, where the offending engine is not clearly or satis-
factorily identified, that it is competent for the plaintiff to prove that
the defendant's locomotives generally, or many of them, at or about
the time of the occurrence, threw sparks of unusual size, and kindled
numerous fires upon that part of their road, to sustain or strengthen the
inference that the fire originated from the cause alleged." In Camp-
bell v. Railway Co., 121 Mo. 340, 25 S. W. 936, 25 L. R. A. 175, 42
Am. St. Rep. 530, it was said : "If the issue had been of negligence in
the construction or management of the engine only, and the engine
which could only have caused the damage had been clearly identified,
evidence that other engines emitted sparks and set fires would have
been inadmissible under the decisions of this court."
Counsel for appellant refer to certain cases which, as it is claimed,
hold to the contrary of this doctrine, but we think that, upon a careful
examination of such cases, the facts therein stated will be shown to
be such as not to bring them in conflict with the rule here laid down.
For instance, in Thatcher v. Railroad Co., 85 Me. 502, 27 Atl. 519,
where it was held that evidence was admissible to show that fires were
communicated by defendant's locomotives at different times within a
certain period in the vicinity where the plaintiff's lumber was destroyed,
it did not appear that the plaintiff, by his own testimony or that of his
witnesses, was able to identify the locomotive claimed to have set the
fire. So, in Railroad Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356,
which upon its face seems to sustain the contention of appellant, it is
said by Mr. Justice Strong: "The particular engines [which caused the
fire] were not identified." The case of Railroad Co. v. Richardson,
supra, is commented upon in Gibbons v. Railroad Co., supra, and its
reasoning upon this subject is criticised. In view of the rule thus an-
nounced, and inasmuch as the evidence in the case at bar tended to
identify a particular engine as the cause of the injury, there was no
error in the action of the court below in refusing to admit the offered
testimony. 08
Appellant, however, contends that the testimony should have been
admitted upon the alleged ground that it was proper evidence in rebut-
tal of the case made by the defendant below. * * *
Evidence that other engines had caused other fires about the same
time was merely evidence tending to show that this fire may have been
caused by a spark from the particular engine in question. Therefore
the testimony should have been introduced, if at all, as a part of plain-
tiff's original co case. It was, however, offered as a part of plaintiff's
as Accord: Coale v. Hannibal & St. J. R. Co., GO Mo. 227 (1S75) ; Baltimore
& S. R. Co. v. Woodruff, 4 Md. 2-12, 59 Am. Dec. 72 (185^); Erie R. Co. v.
Decker, 78 Pa. 2!« (1875).
69 Tint in such cases the evidence is not admissible in chief, any more
ebuttal, see Illinois Cent. R. Co. v. Bailey, 222 111. 480, 78 N. E.
b:;:; (1906), semble.
Sec. 3) MISCELLANEOUS FACTS 893
rebutting testimony. Where testimony which might properly have been
introduced as proof in chief is offered by the plaintiff in rebuttal, it
is discretionary with the trial court whether such testimony shall be
admitted or not, and the action of the court in this regard is not as-
signable as error. City of Sandwich v. Dolan, 141 111. 441, 31 N. E.
416; Railroad Co. v. Richardson, supra; 8 Enc. PI. & Prac. p. 132.
Inasmuch, therefore, as the offered evidence, if competent at all, would
have been, in strictness, a part of the plaintiff's original case, its ad-
mission or exclusion upon the rebuttal was a matter of discretion, and,
whether right or wrong, cannot be reviewed here. The fact that the
defendant sought to show in defense that the fire was caused by some
agency inside of the elevator did not make the offered testimony strict-
ly rebutting in its character, but it was none the less on that account a
part of plaintiff's original case, as going to show that the fire was
caused by a spark from the engine. Nor can it be said that the testi-
mony was admissible merely because one of defendant's witnesses, in
stating what kind of appliance for the arresting of sparks was upon the
engine in question, also stated that the same 70 kind of appliance was on
all the other engines of the road. As the engine causing the injury was
identified, the question was whether it was properly equipped or man-
aged. It was immaterial how other engines may have been equipped
or managed. And, even if it had been shown that other fires had oc-
curred caused by other engines, such fires may have been caused by the
careless management of the engines, rather than the defective character
of their equipment. Surely, proof tending to- show that other engines
were managed improperly could throw no light upon the question
whether the engineer managing this particular engine was skillful or
not. * * *
Judgment affirmed.
to McReynolds, J., in Texas & P. Ry. Co. v. Rosborough, 235 U. S. 429,
35 Sup. Ct. 117, 59 L. Ed. 299 (1914) : "While insisting that sparks or cinders
from only three identified engines could have caused the fire, the railway
company nevertheless introduced some evidence tending to show that all
locomotives were properly equipped. In rebuttal, and over objection, a
witness was permitted to testify that within a few days after tbe accident
he saw engines while passing near the scene emit large cinders; and the
admission of such evidence constitutes the principal subject of complaint bere.
In view of the pleadings and the statements of preceding witnesses this action
was not improper. Texas & Pacific Railway v. Watson, 190 U. S. 2S7, 2S9
[23 Sup. Ct. 681, 47 L. Ed. 1057 (1903)] ; Goodman v. Lehigh Valley R. Co.
of New Jersey, 78 N. J. Law, 317, 325, 326 [74 Atl. 519 (1909)]."
S94 CIRCUMSTANTIAL EVIDENCE (Cll. 5
TEXAS & P. R. CO. v. HARTFORD FIRE INS. CO. et al.
(Circuit Court of Appeals, Fifth Circuit, 1916. 230 Fed. 801, 145 C. C. A. 111.)
Walker, Circuit Judge. This was an action to recover damages
for the destruction on a date stated, of cotton by fire, which was
attributed to sparks from a locomotive or locomotives of the defend-
ant, which were alleged not to have been properly provided with ap-
pliances for preventing the escape of sparks or fire; it being also
alleged that the defendant did not exercise proper care to keep said
locomotives in good and proper condition and repair as regards the
escape of fire therefrom, and that its employes in charge of said loco-
motives negligently and improperly operated them, so as to cause large
quantities of sparks and cinders to escape. After the plaintiffs had
introduced direct evidence tending to prove that, on the date men-
tioned, the cotton, which was on a platform adjoining the defendant's
track, was discovered to be on fire very shortly after three locomotives
of the defendant had passed, one or more of which was seen emitting
large cinders in unusual quantities, and that there was no means for
the fire being set other than the passing locomotives, they were per-
mitted, over objections duly made by the defendant, to introduce tes-
timony to the effect that two or three days after the fire a locomotive
of the defendant, which was admitted not to be either one of the three
which passed the platform shortly before the fire was discovered, was
seen emitting large cinders, which, as it was passing the platform,
fell on cotton and scorched it. *
In the case of Grand Trunk Railroad Company v. Richardson, 91
U. S. 454, 23 L. Ed. 356, in which, so far as the report of the case
indicates, there was an absence of any direct evidence as to the emis-
sion of sparks by either of the two locomotives which passed the scene
of the fire shortly before it started, and those locomotives not being
identified, it was held that error was not committed in admitting evi-
dence that some locomotives of the same defendant, at other times
during the same season, prior to the time of the fire in question, had
scattered fire while passing the same place. It seems that there was a
necessity in that case to resort to circumstantial evidence to prove that
sparks were scattered by either of the two engines which could have
started the fire, and it was not made to appear that the scattering of
sparks testified to was by a locomotive or locomotives which had no
part in causing the fire in question. In the instant case there was di-
rect evidence to support a finding that one or more of the locomotives
which, shortly before the fire was discovered, passed the platform upon
which the cotton was, then emitted sparks which might have started the
fire, and it was admitted that the locomotive which, several days after
the fire, was seen emitting large sparks was in no way responsible for
the injury complained of.
Sec. 3) MISCELLANEOUS FACTS 895
We are not of opinion that the ruling in the case cited furnishes
support for the proposition that evidence is admissible as to the con-
struction, condition or operation, at a date subsequent to the fire
complained of, of a locomotive which confessedly did not contribute
to the starting of that fire. Where, as in the instant case, the facts of
the starting of the fire complained of are so far disclosed by direct evi-
dence introduced by the plaintiffs as to make it apparent that, if it was
started by sparks from a passing locomotive, it was so started by one
or more of three locomotives which passed shortly before the fire was
discovered, further inquiry to support the charge made should be lim-
ited to the construction, condition, and operation of those locomotives,
so shown to be the only ones by which the fire might have been
caused. In such a situation it is apparent that evidence as to the emis-
sion of sparks several days later by a locomotive which was admitted
not to be either of three which might have started the fire has refer-
ence to a matter which is entirely foreign to the issue to be passed on,
namely, the negligence vel non of the defendant with reference to the
construction, maintenance, or operation of the locomotive or locomo-
tives which might have caused the fire. That evidence could have no
logical or rational tendency to prove how those locomotives were con-
structed, in what state of repair they were, or how they were operated.
It could shed no light on the inquiry as to what caused the fire. That
evidence as to the excessive emission, several days after the fire in
question, of sparks by a locomotive of the defendant which is identified
as one that had no part in causing that fire, is inadmissible to support
a charge that the fire was negligently caused by some other locomotive
or locomotives of the defendant is supported by reason and by abun-
dant authority. Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114
Fed. 133, 52 C. C. A. 95; Henderson, Hull & Co. v. Philadelphia &
Reading R. Co., 144 Pa. 461, 22 Atl. 851, 16 L. R. A. 299, 27 Am. St.
Rep. 652; Alabama G. S. R. Co. v. Johnston, 128 Ala. 283, 29 South.
771 ; Gibbons v. Wisconsin Valley Railroad Co., 58 Wis. 335, 17 N.
W. 132; San Antonio & A. P. Ry. Co. v. Home Insurance Co. of
New York (Tex. Civ. App.) 70 S. W. 999 ; W. A. Morgan & Bros. v.
.Missouri, K. & T. Ry. Co. of Texas, 50 Tex. Civ. App. 420, 110 S.
W. 978; Moose v. Missouri, K. & T. Ry. Co. of Texas (Tex. Civ.
App.) 179 S. W. 75; 4 Chamberlayne on Evidence, § 3191.
In another case which grew out of the same fire it has been held
that error was not committed in admitting evidence which was substan-
tially the same as that above considered. Texas & Pacific Ry. v. Ros-
borough, 235 U. S. 429, 35 Sup. Ct. 117, 59 L. Ed. 299; Texas & P.
Ry. Co. v. Rosborough, 209 Fed. 205, 126 C. C. A. 299. In that case
that evidence was introduced by the plaintiff in rebuttal after the de-
fendant had introduced evidence tending to show that its locomotives
were all equipped with a standard spark arrester, and were kept in
order and well handled, and it was held to be admissible as rebutting
evidence. The ground upon which the admission of the evidence in
SOG CIRCUMSTANTIAL EVIDENCE (Ch. 5
that case was sustained does not exist in the instant case. Here the
testimony complained of was introduced as a part of the evidence by
which the plaintiffs undertook to sustain the averments of their peti-
tion. The conclusion is that it was not competent for the purpose for
which it was offered and admitted, and that the admission of it was
prejudicial error.
The judgment is reversed. 71
KNICKERBOCKER ICE CO. v. PENNSYLVANIA R. CO.
AMERICAN ICE CO. v. SAME.
(Supreme Court of Pennsylvania, 1916. 253 Pa. 54, 97 Atl. 1051.)
Potter, J. 72 We have here two appeals, in cases which were tried
together in the court below, were argued together here, and will be
disposed of in one opinion.
The principal question here presented for consideration is whether
there was sufficient evidence of the cause of the fire, and of the negli-
gence of the defendant company, to justify the submission of these
questions to the jury. The point is fairly raised in the first and second
assignments of error, which are respectively to the refusal by the court
below of binding instructions for defendant, and to the refusal of
defendant's motion for judgment n. o. v. * * *
From the evidence in .the present case, the possibility of the fire
having reached plaintiffs' property from sparks negligently escaping
from defendant's passing engines, was manifest. The real question to
be determined was whether the fire was probably due to that cause, and
to no other.
The testimony of a number of witnesses tended to show that the fire
started on the outside of plaintiffs' fence next to the railroad; that
7i Woodward, J., in Buhrmaster v. New York Cent. & H. R. R. Co., 173
A pp. Div. 62, 158 N. Y. Supp. 712 (1916): "* * * But if it does we are
persuaded that the authority relied upon (Sheldon v. Hudson River Railroad
Co., 14 X. Y. 218 [67 Am. Dec. 155 (1856)]), is not controlling at this time.
That determination was made in the primitive days of railroading, in 1856,
when the engines wore known by name, and when there was only one type
in common use, and all were equipped alike, substantially, and evidence of
what these engines usually did under ordinary conditions was a very different
thing from taking the testimony to-day, with the great variety of engines in
use, and particularly when it is not shown that the conditions were the same
When the alleged sparks were thrown a greater distance. Obviously, with the
wind blowing a gale, a defective engine might have thrown sparks which
would he carried alive a distance of several hundred feet, while another en-
gine, in good condition, and in a comparatively light wind, would not throw
off sparks of any danger whatever; and so the mere fact that some witness
bad found large sparks a con Iderable distance from the line of the railroad
would prove nothing of value in determining whether the Ore in question was
lighted by a spark from an <-:iL'inr in passing, and the <-aso of Chandlei v.
Rutland Railroad Company, 140 App. Dlv. 68 [124 N. Y. Supp. 1046 (1910)],
seema to as controlling upon the point now under consideration, if it be as-
ed to have been fairly presented by the ruling of the court."
ti Part of opinion omitted.
Sec. 3) MISCELLANEOUS FACTS 897
it was very small when first seen, and under the influence of a strong
northwest wind, which blew from the direction of defendant's tracks
towards plaintiffs' premises, the fire spread over the entire plant ; in
the 2i/o hours preceding the fire, over 30 passenger trains, in addition
to freight trains and drill engines, passed the point where the fire oc-
curred ; there was a heavy grade at that point and defendant's loco-
motives, during the 2 weeks previous to the fire and 2 weeks afterward,
were seen to throw out sparks, many of them of larger size than could
pass through a spark arrester in proper condition and repair; these
sparks were hot and burned holes in clothing, set fire to combustible
things on which they lighted, burned the persons of two individuals on
which they fell, and caused horses in plaintiffs' yard to run away.
At times when the wind was from the direction of the railroad, they
would be blown over to and light upon plaintiffs' buildings, and in the
yard ; about 5 minutes before the fire was discovered, a heavy freight
train went up the grade past the premises, pulling hard and emitting
a dense smoke; there were also two shifting engines at work on the
railroad near plaintiffs' plant and in a lumber yard across the rail-
road. No witness testified to seeing a locomotive actually throwing
out sparks on the day of the fire, though numerous witnesses said they
had seen them doing so within a few days, some of them on the day
before.
There was also evidence tending to show that the fire did not origi-
nate in any other way. * * *
After careful examination of all the evidence, we are satisfied that
it was sufficient to justify its submission to the jury, upon the question
of the origin of the fire. The decision in the case of American Ice
Company v. Penna. R. R. Co., 224 Pa. 439, 73 Atl. 873, is cited as
bearing against this conclusion. The language there used was ap-
propriate to the facts of that case, but it should be limited to those
facts, in order to be consistent with the trend of our other decisions.
The later case of Oakdale Baking Co. v. Philadelphia & Reading Ry.
Co., 244 Pa. 463, 91 Atl. 358, restates what must be regarded as the
established rule.
In the third assignment of error, complaint is made of the admission
in evidence of the testimony of James G. Corcoran, a detective em-
ployed by plaintiffs after the fire to investigate its cause, to the effect
that on June 13, 1913, four days after the fire, at 3:12 p. m., he saw-
defendant's locomotive, No. 997, passing plaintiffs' premises and
throwing out smoke and large sparks, some of which fell in the ice
plant, and that, on June 25th, he saw the same locomotive in defend-
ant's shop at Jersey City, and saw holes which had been burned in the
screen, one being, as the witness said, a 2-inch, the other a 3 1 - : -inch,
hole.
Under the decisions above cited this was competent evidence. If a
locomotive was seen throwing out sparks larger than would escape
IIint.Ev. — 57
898 CIRCUMSTANTIAL EVIDENCE (Ch. 5
through a spark arrester properly constructed and in good repair, it
was proper to show the cause of such emissions. If it was owing to
the bad condition of the spark arrester, it might fairly be inferred that
similar emissions from other locomotives were due to the same cause.
A statement of the general principle applicable to such conditions is
found in 33 Cyc. 1373, as follows:
"Where the engine alleged to have caused the fire is not clearly or
satisfactorily identified, evidence as to the general condition of other
engines of defendant of the same general appearance and construction
and under similar conditions, at about the same time and place, in re-
spect to throwing sparks or coals capable of setting fire, is admissible
as tending to show a negligent habit on the part of defendant as to
the construction, equipment, and management of its engines and there-
fore as tending to show negligence in that respect in the particular
case, and as tending to show a probability that the fire originated
from an engine of defendant."
The same principle is stated in 3 Elliott on Railroads (2d Ed. 1907)
§ 1243, where it is said:
"If the particular engine cannot be identified evidence is admissible
that other engines of the defendant similarly constructed and operated
set fires or threw igniting sparks equally far at other times, within a
reasonable period, and at other places in the vicinity along the line,
and the great weight of authority appears to be to the effect that such
evidence is admissible without proof on the part of the plaintiff that
the engines were similarly constructed and operated and without con-
fining it to the exact time or day of the fire in question." * * *
Judgment affirmed. 73
HUBBARD v. ANDROSCOGGIN & K. R. CO.
(Supreme Judicial Court of Maine, 1855. 39 Me. 506.)
On exceptions from nisi prius ; Rice, J., presiding.
Trespass quare clausum.
The defendant's railroad passed in the vicinity of the plaintiff's
premises ; and the latter proved that the defendants had dug down and
widened the wrought part of the highway, between their location on
the west, and his tavern house on the east, and had thereby rendered
difficult the access from the highway to his house.
There was some evidence tending to show a breach of plaintiff's
close.
The plaintiff also proved, that on two occasions the carriages of
travelers had been upset in attempting to pass from the highway to
his tavern house.
78 For a collection of the fire cases, Bee note to Alcott v. Public Service
Corp. of New Jersey, 32 L. R. A. (N. S.) 1084 (1009).
Sec. 3) MISCELLANEOUS FACTS 899
This evidence was objected to, but admitted by the Court.
A verdict 'was returned for plaintiff.
Appleton, J. The condition of the road, as left by the defendants
was a matter for the consideration of the jury. That condition was
to be ascertained from the testimony of witnesses. If the fact, that
one or more persons had been upset in driving over the road in ques-
tion, were to be regarded as admissible in evidence, then it would neces-
sarily be proper to receive the testimony to show that the accidents
which may have occurred, were the results of carelessness or negligence
on the part of those sustaining the injuries of which complaint is made.
It would be equally proper to show the number of carriages which
may have safely passed over. But if proof of this description should
be received, then the opposing party would obviously have the right of
showing, that in all of those instances extraordinary care had been
used, for the purpose of rebutting the inference which might otherwise
arise, that the road was safe and convenient. As many distinct issues
might thus be raised as there were instances of carriages passing over
the road. The attention of the jury would be thus diverted from the
questions really in dispute and directed to what is entirely collateral.
Neither can such evidence be regarded as necessary. The width of
the road, the smoothness of its surface, its elevations and depressions,
the obstructions remaining thereon and their size and position, are all
susceptible of exact admeasurement, and from these facts as disclosed
with more or less of accuracy, it will be for the jury to determine how
far and to what extent the condition of the road may have been the
case of injury to the party complaining. The evidence of carriages
having been upset in attempting to pass from the highway to the plain-
tiff's tavern, was improperly received and a new trial must be granted.
Collins v. Dorchester, 6 Cush. (Mass.) 396; Aldrich v. Pelham, 1
Gray (Mass.) 510.
Exceptions sustained.
New trial granted. 74
Tenney, J., was unable to be present at the hearing and took no
part in the opinion.
CROCKER et ux. v. McGREGOR.
(Supreme Judicial Court of Maine, 18S4. 76 Me. 282, 49 Am. Rep. 611.)
Libbey, J. This action comes before this court on exceptions and
motion. It is for an injury to the female plaintiff, alleged to have
been caused by the fright of her horse by steam escaping from the de-
fendant's mill, situated on the margin of the public highway, which the
plaintiff alleges was a public nuisance to the travel over the way.
The exception is to the admission of evidence produced by the plain-
er * Accord: Moore v. City of Richmond, 85 Va. 53S, 8 S. E. 387 (1888), where
a number of the cases are reviewed.
9Q0 CIRCUMSTANTIAL EVIDENCE (Cll. 5
tiff. Witnesses for the plaintiff were permitted to testify that, when
traveling by the mill with horses well broken and ordinarily safe, their
horses were frightened by the escaping steam. This evidence was
limited to a short time before and after the plaintiff's injury, when
the mill was in the same condition as when she was injured; and was
admitted for the sole purpose of showing the capacity of the escaping
steam to frighten ordinary horses. We think it was properly admitted.
The issue was, whether the mill as constructed and used, with the
steam escaping into the way, was a nuisance to the public travel. Evi-
dence showing that it naturally frightened ordinary horses when be-
ing driven by it, was competent to show its effect upon the public
travel, its character and its capacity to do mischief. Its effect on horses
was not dependent upon the acts of men, which may be the result of
incapacity or negligence, but was caused by action of the inanimate
thing upon an animal acting from instinct. It was not to show that
other parties were injured at the same place by the same cause, and is,
therefore, distinguishable from cases against towns for injury from
defects in a highway, in which this court has held that evidence of ac-
cidents to others at the same place is inadmissible, because it raised
too many collateral issues. Here the only issue is the effect of the sight
and sound of the steam upon ordinaiy horses, as tending to show that
travel over the way was thereby rendered dangerous. Hill v. P. & R.
Railroad Co., 55 Me., 439, 92 Am. Dec. 601 ; Burbank v. Bethel Steam
Mill Co., 75 Me. 373, 46 Am. Rep. 400. We think the competency of
the evidence rests upon the same principle as evidence, in actions
against railroad corporations for damage by fire, alleged to ha've been
set by. coals or sparks from a passing locomotive, that the same loco-
motive, or others similarly constructed and used, have emitted sparks
and coals, and set fire at other places and on other occasions. It tends
to show the capacity of the inanimate thing to do the mischief com-
plained of. Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 23 L,. Ed.
356; Whitney v. Inhabitants of Leominster, 136 Mass. 25, 17 Rep.
153.
We have carefully examined the evidence reported, upon which
the motion to set aside the verdict is based, and while we think the
verdict might properly have been for the defendant, still there is suffi-
cient in favor of the plaintiff, if the jury believe it, to authorize the
verdict for her. We cannot say that the verdict is so clearly wrong
as to require the court to set it aside.
Exceptions and motion overruled. 75
r» On tii" objection that such evidence involves collateral Issues ns to the
i the other horses, sec Bouse v. Metcalf, 27 Conn. 631 (1858). For
tion of the oote In 82 L. R. A. (N. S.) 1 L59.
The Insufficiency of a cattle guard may be shown by the fact that other
• I over it. O'Mara v. Newton & N. \v. By. Co., l-lu Lowa, 190,
N. \V. :;77 (1908).
Sec. 3) MISCELLANEOUS FACTS 901
SHEA v. GLENDALE ELASTIC FABRICS CO.
(Supreme Judicial Court of Massachusetts, 1S94. 162 Mass. 463, 38 N. E.
1123.)
Tort, for personal injuries occasioned to the plaintiff by lead poison-
ing from inhaling dust containing white lead, coming from the rubber
thread on which he worked in the defendant's mill.
At the trial in the Superior Court, before Mason, C. J., the jury
returned a verdict for the plaintiff; and the defendant alleged ex-
ceptions. The material facts appear in the opinion.
Knowlton, J- The only exception in this case was to the admis-
sion of certain testimony on the question whether the plaintiff's ill-
ness was caused by lead poisoning from inhaling dust containing white
lead coming from the rubber thread on which he worked in the de-
fendant's mill, or whether it arose from other causes. This question
may be divided into two branches : First, the inquiry whether the
defendant's mill was a place in which one would be likely or liable
to be poisoned by inhaling lead in the form of dust; and, secondly, if
so, whether the plaintiff was so poisoned. The plaintiff was allowed
to introduce evidence to show that other persons who worked at the
same time in the same room in the defendant's mill, and under similar
conditions, were ill from lead poisoning, and that other persons who
worked there under similar conditions a few months before and a few
months after were also ill from the same cause. There was also evi-
dence from a physician, who could not fix the time exactly, that he had
a number of like cases in patients coming from the same room of the
defendant's mill. One Wood was permitted to testify that after
working in this mill 3 1 -. or 4 months, a short time before the plaintiff
was there, he was ill, and had the same symptoms. All this testimony
was introduced subject to the same general exception of the defendant.
The question in dispute was whether there was an impalpable poison
in the atmosphere of the defendant's mill, which would be likely to
have a certain effect upon the human body. The most natural way of
obtaining the true answer to the question was by inquiring what effects,
if any, had been produced upon persons accustomed to breathe this
atmosphere. The conditions under which the different persons in the
room were exposed were similar, and, so far as that factor in the prob-
lem is concerned, we should expect precisely the same effect. These
persons had bodies similar in form and structure, with the same or-
gans, governed by the same laws, and with like susceptibilities. Of
course there were diversities in their previous experiences, and in
their condition outside of the mill, and on that account the effects upon
the different persons might differ slightly. But, so far as appears,
the symptoms of their illness were so distinctive and peculiar as to
point almost conclusively to the same cause. We are of opinion that
902 CIRCUMSTANTIAL EVIDENCE (Ch. 5
this evidence tended to show that there was exposure in the defendant's
mill which caused the same illness in them all. There was undoubtedly
evidence in regard to the symptoms and nature of the plaintiff's ill-
ness which is not reported on the bill of exceptions, all of which, pre-
sumably, was considered by the presiding justice in determining wheth-
er the evidence should be admitted.
In deciding questions of this kind much depends on the circumstances
of each particular case, and much is therefore left to the discretion of
the judge. To express this conclusion in another way: whenever
the competency of evidence depends on the view to be taken of any
doubtful question of fact which appears of record, or on facts and
evidence not reported, this court will not attempt to revise the decision
of the trial judge. Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378;
Hunt v. Gaslight Co., 8 Allen, 169-171, 85 Am. Dec. 697; Robinson
v. Railroad Co., 7 Gray, 92-95. In Baxter v. Doe, 142 Mass. 558,
8 N. E. 415, which was an action for damages against the owner of
a vessel for neglect to furnish proper food to a sailor, evidence that
other members of the crew, exposed to similar conditions, were sick
at about the same time, was held to be competent. Hunt v. Gaslight
Co., 8 Allen, 169, 85 Am. Dec. 697, and 1 Allen, 343, was an action for
negligently suffering gas to escape into a house occupied by the
plaintiff, whereby he was made sick ; and it was decided that the
sickness of other persons in the same house, exposed to the same con-
ditions, might be introduced by the plaintiff. Similar principles were
involved in the judgments in Hodgkins v. Chappell, 128 Mass. 197, in
Brierly v. Davol Mills, 128 Mass. 291, and in Reeve v. Dennett, 145
Mass. 23, 11 N. E. 938. See, also, Crocker v. McGregor, 76 Me.
282, 49 Am. Rep. 611 ; Boyce v. Railroad Co., 43 N. H. 627; Darling
v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; Cleaveland v. Rail-
road Co., 42 Vt. 449; House v. Metcalf, 27 Conn. 631 ; Field v. Rail-
road Co., 32 N. Y. 339; Railroad Co. v. Richardson, 91 U. S. 454,
23 L. Ed. 356; District of Columbia v. Amies, 107 U. S. 519-524, 2
Sup. Ct. 840, 27 L. Ed. 618; Brown v. Railway Co., 22 Q. B. Div.
391-393.
The objection that such testimony is likely to lead into collateral in-
quiries in order to establish its force or to show its weakness is one
that may be made to almost all circumstantial evidence, and which ad-
dresses itself to the sound discretion of the court. If it seems probable
that a line of inquiry will lead into side issues not anticipated by the
parties, and which will be likely to distract and confuse the jury, and
unreasonably protract the trial, the questions should be excluded ; but
if, on proofs of identity or likeness of conditions, a fact will have im-
portant probative force, it should not be excluded if its relation to the
e can easily be shown. It must be assumed in this case, in the ab-
sence of anything to show the contrary, that there was no great prac-
tical difficulty in presenting and considering the evidence which was
Sec. 3) MISCELLANEOUS FACTS 903
objected to, and that the presiding justice found that the similarity
of conditions was so clearly and so easily shown as to made the testi-
mony proper.
Exceptions overruled.
DISTRICT OF COLUMBIA v. ARMES.
(Supreme Court of the United States, 1882. 107 U. S. 519, 2 Sup. Ct. 840, 27
L. Ed. 618.)
Field, J. 78 This was an action to recover damages for injuries
received by the plaintiff's intestate, Du Bose, from a fall caused by a
defective sidewalk in the city of Washington. In 1873 the board of
public works of the city caused the grade of the carriage-way of Thir-
teenth street, between F and G streets, to be lowered several feet.
The distance between the curbstone of the carriage-way and the line
of the adjacent building was 36 feet. At the time the accident to the
deceased occurred, this portion of the street — sidewalk it may be
termed, to designate it from the carriage-way, although only a part of
it is given up to foot passengers — was, for 48 feet north of F street,
lowered in its whole width to the same grade as the carriage-way.
But, for some distance beyond that point, only 12 feet of the sidewalk
was cut down, thus leaving an abrupt descent of about 2 feet at a
distance of 12 feet from the curb. At this descent — from the elevated
to the lowered part of the sidewalk — there were 3 steps, but the place
was not guarded either at its side or end. Nothing was placed to
warn foot passengers of the danger.
On the night of February 21, 1877, Du Bose, a contract surgeon
of the United States army, while walking down Thirteenth street,
towards F street, fell down this descent, and, striking upon his knees,
received a concussion which injured his spine and produced partial
paralysis, resulting in the impairment of his mind and ultimately in
his death, which occurred since the trial below. * * *
On the trial, a member of the Metropolitan police, who saw the
deceased fall on the sidewalk and went to his assistance, was asked,
after testifying to the accident, whether, while he was on his beat,
other accidents had happened at that place. The court allowed the
question, against the objection of the city's counsel, for the purpose
of showing the condition of the street, and the liability of other per-
sons to fall there. The witness answered that he had seen persons
stumble over there. He remembered sending home in a hack a woman
who had fallen there, and had seen as many as five persons fall there.
The admission of this testimony is now urged as error, the point of
the objection being that it tended to introduce collateral issues and
thus mislead the jury from the matter directly in controversy. Were
such the case the objection would be tenable, but no dispute was
™ Part of opinion omitted.
904" CIRCUMSTANTIAL EVIDENCE (Cll. 5
made as to these accidents, no question was raised as to the extent
of the injuries received, no point was made upon them, no recovery
was sought by reason of them, nor any increase of damages. They
were proved simply as circumstances which, with other evidence, tend-
ed to show the dangerous character of the sidewalk in its unguarded
condition. The frequency of accidents at a particular place would
seem to be good evidence of its dangerous character — at least, it is
some evidence to that effect. Persons are not wont to seek such places,
and do not willingly fall into them. Here the character of the place
was one of the subjects of inquiry to which attention was called by
the nature of the action and the pleadings, and the defendant should
have been prepared to show its real character in the face of any proof
bearing on that subject.
Besides this, as publicity was necessarily given to the accidents, they
also tended to show that the dangerous character of the locality was
brought to the attention 77 of the city authorities.
In Quinlan v. City of Utica, 11 Hun (N. Y.) 217, which was before
the supreme court of New York, in an action to recover damages for
injuries sustained by the plaintiff through the neglect of the city to
repair its sidewalk, he was allowed to show that while it was out of
repair other persons had slipped and fallen on the walk where he was
injured. It was objected that the testimony presented new issues which
the defendant could not be prepared to meet, but the court said : "In
one sense every item of testimony material to the main issue intro-
duces a new issue; that is to say, it calls for a reply. In no other
sense did the testimony in question make a new issue. Its only im-
portance was that it bore upon the main issue, and all legitimate
testimony bearing upon that issue, the defendant was required to be
prepared for." This case was affirmed by the court of appeals of
New York, all the judges concurring, except one, who was absent.
74 N. Y. 603.
77McClaln, J., in Potter v. Cave, 123 Iowa, 98, 98 N. W. 569 (1904):
"Throughout the trial, except in one instance, the court consistently sustained
obj to evidence offered for plaintiff to show previous accidents on this
stairway and warnings to defendant that it was dangerous. These rulings
were undoubtedly correct Hudson v. Chicago & N. W. R. Co., 59 Iowa, 5S1
[13 N. W. 735, 44 Am. Rep. 692 (1882)]; Mathews v. City of Cedar Rapids, 80
Iowa. 459 [45 N. W. 894, 20 Am. St. Rep. 436 (1S90)] ; Croddy v. Chicago, R.
I. & P. It. Co., 91 Iowa, 598 [60 N. W. 214 (1894)1. The question was not as
to whether defendanl had reason to believe the stairway to be dangerous, bin
whether it was la fad maintained in a dangerous condition. If dangerous
in fact, his knowledge would be Immaterial. But one witness for plaintiff
wai :ed whether she had communicated to defendant, or any of his em
ployes or servants In the store building, Information with reference to the
dangerous condition of the stairway, and defendant's objection to this ques-
tion as calling for evidence that was b ten! and Immaterial, and which
ild not lend to prove any material Issue In the case, was overruled.
Whereupon the witness answered thai she bai □ Buch Information to an
emplo; fendanl In the store about lx months before the accident. The
admission of this testimony was erroneous."
Sec. 3) MISCELLANEOUS FACTS 905
In an action against the city of Chicago, to recover damages resulting
from the death of a person who in the night stepped off an approach
to a bridge while it was swinging around to enable a vessel to pass, and
was drowned, — it being alleged that the accident happened by reason
of the neglect of the city to supply sufficient lights to enable persons
to avoid such dangers, — the supreme court of Illinois held that it was
competent for the plaintiff to prove that another person had, under the
same circumstances, met with a similar accident. City of Chicago v.
Powers, 42 111. 169, 89 Am. Dec. 418. To the objection that the evi-
dence was inadmissible, the court said:
"The action was based upon the negligence of the city in failing to
keep the bridge properly lighted. If another person had met with a
similar fate at the same place, and from a like cause, it would tend to
show a knowledge on the part of the city that there was inattention
on the part of their agents having charge of the bridge, and that they
had failed to provide proper means for the protection of persons cross-
ing on the bridge. As it tended to prove this fact it was admissible ;
and if the appellants had desired to guard against its improper applica-
tion by the jury, they should have asked an instruction limiting it to its
legitimate purpose."
Other cases to the same general purport might be cited. See City
of Augusta v. Hafers, 61 Ga. 48, 34 Am. Rep. 95 ; House v. Metcalf,
27 Conn. 631 ; Calkins v. City of Hartford, 33 Conn. 57. 87 Am. Dec.
194; Darling v. Westermoreiand, 52 N. H. 401, 13 Am. Rep. 55 ; Hill
v. Portland & R. R. Co., 55 Me. 439, 92 Am. Dec. 601 ; Kent v. Town
of Lincoln, 32 Vt. 591 ; City of Delphi v. Lowery, 74 Ind. 520, 39 Am.
Rep. 98. The above, however, are sufficient to sustain the action of
the court below in admitting the testimony to which objection was
taken.
Judgment affirmed.
FROHS v. CITY OF DUBUQUE.
(Supreme Court of Iowa, 1899. 109 Iowa, 219, 80 N. W. 341.)
Waterman, J. 78 Plaintiff was hurt by falling over a loose board
in a walk. After her injury, the owner of the abutting lot took up the
old walk, and laid a new one. Evidence of this fact was received over
defendant's objection. It is manifest, from the examination of the wit-
nesses on this point, that the fact mentioned was elicited only inci-
dentally. The circumstance of the old walk being taken up was not
offered as evidence tending to establish that it was defective, but merely
as showing how it came the witnesses knew the condition of the
stringers upon which the boards were laid. The court, in admitting
the evidence, stated that its scope should be so limited. The admission
7 8 Part of opinion omitted.
906 CIRCUMSTANTIAL EVIDENCE (Cll. 5
of this evidence it is thought is contrary to the rule announced in
Cramer v. City of Burlington, 45 Iowa, 627, and Hudson v. Railroad
Co., 59 Iowa, 581, 13 N. W. 735, 44 Am. Rep. 687, but we cannot
coincide in this view. In the first of these cases we held that the fact
of a subsequent change made in the walk by defendant could not be re-
ceived and considered as evidence of an admission of a previous de-
fect. In the other case the decision was that evidence of subsequent
repairs could not be received as tending to establish prior negligence.
We are entirely satisfied with the doctrine announced in these cases,
and do not think the action of the court in the case at bar is in any way
in conflict with it. Kuhns v. Railway Co., 76 Iowa, 67-71, 40 N. W.
92. It may be that the defendant was entitled to an instruction limiting
the effect of the evidence to the extent stated, but, as no such instruc-
tion was asked, the failure to give it cannot now be taken advantage
of. See the case last cited.
The next ground of complaint is that evidence was received relating
to the original construction of the walk, which was built some considr
erable time before the accident to plaintiff. This testimony was to the
effect that the walk was built of old boards and stringers. It was plain-
tiff's claim that the material in the walk was badly decayed, and that
the city should have had notice of the defect. This evidence was not
introduced, as defendant's counsel seem to think, in order to show
negligence in the original construction, but only as bearing upon the
question of notice to the city of the condition of decay. For this pur-
pose it was properly admitted. McConnell v. City of Osage, 80 Iowa,
293, 45 N. W. 550, 8 L. R. A. 778; Lorig v. City of Davenport, 99
Iowa, 479, 68 N. W. 717.
One French and his wife were witnesses, and they were allowed to
testify that, a few days before the accident to plaintiff, Mrs. French
tripped upon the same loose board of which complaint is made in this
case. It is insisted that evidence of other accidents was not admis-
sible; and this is correct, where such evidence is relied upon as sub-
stantive proof of an actionable defect. Hudson v. Railroad Co., 59
Iowa, 581, 13 N. W. 735, 44 Am. Rep. 687; Croddy v. Railway Co., 91
Iowa, 598, 60 N. W. 214; Mathews v. City of Cedar Rapids, 80 Iowa,
459, 45 N. W. 894, 20 Am. St. Rep. 436; Langhammer v. City of Man-
chester, 99 Iowa, 295, 68 N. W. 688. But in the case at bar the evi-
dence was offered to show the existence of this particular- loose board
in the walk prior to plaintiff's injury, and the manner in which it was
discovered by the witnesses. For this purpose the testimony was
properly admissible.
In Hunt v. City of Dubuque, 96 Iowa, 314, 65 N. W. 319, the ques-
tion presented here was raised, and we said upon the subject: "The
wi .vas also permitted to state that she had seen people stumble
at the defective part of the walk, and that she saw an old gentleman
Stop, and push the board down with his cane. The testimony tended
Sec. 3) MISCELLANEOUS FACTS 907
to show the condition of the walk, and was material for the purpose
of showing that the condition continued until the accident occurred."
Smith v. City of Des Moines, 84 Iowa, 685-688, 51 N. W. 77, also
supports the ruling of the trial court in the case at bar. We also call
attention, in this connection, to Alberts v. Village of Vernon, 96
Mich. 549, 55 N. W. 1022 ; Moore v. City of Kalamazoo, 109 Mich.
176, 66 N. W. 1089.
Three of the authorities noted above as cited by appellant are cases
where the defect complained of was in the original construction, and
in the other (Croddy v. Railway Co.), which involved an accident at
a railway crossing one element of the negligence complained of was
the excessive speed of the train. It is manifest that in none of these
instances does the same reason obtain for admitting this kind of evi-
dence as in the case at bar, where the defect was caused by time and
changing conditions, and notice of it to defendant had to be shown;
and when also the evidence related to it specifically, and not to a gen-
eral bad condition of the walk. * * *
Judgment affirmed.
WOOD WORTH v. DETROIT UNITED RY.
(Supreme Court of Michigan, 1908. 153 Mich. 108, 116 N. W. 549.)
Carpenter, J. 79 About 3% miles east of Farmington Junction
defendant's railway crosses the roadbed of Grand River road at an
acute angle. This crossing is cailed the "Voleny Smith crossing." As
Rex Woodworth, plaintiff's intestate, attempted to drive over this
crossing, the left front wheel of his wagon caught in a vacant space
between the rail and the planking, his horse could not move it, and a
car operated by defendant collided with his vehicle and killed him.
This suit was brought to recover compensation. The issue was sub-
mitted to a jury, who rendered a verdict in plaintiff's favor. We are
asked to reverse the judgment entered upon said verdict for several
reasons.
1. Plaintiff was permitted to prove by one of defendant's employes,
a sectionman, that at least a dozen rigs had been stuck in this crossing
in the same way as was that of plaintiff's intestate; that the first of
these occurrences happened about two years before, the others from
time to time up to about a month before the disaster in suit, and
on one of these occasions a wagon wheel was broken. This testi-
mony was received, notwithstanding the circumstance that counsel
for defendant admitted in open court that, "whatever the condition
of that crossing at the time in question, defendant had full knowledge
of it, and had full knowledge of it at least six months prior thereto.
We do not admit that it was defective."
7» Tart of opinion of Carpenter, J., and opinion of Graut, C. J., omitted.
008 CIRCUMSTANTIAL EVIDENCE (Cll. 5
Defendant relies upon the case of Gregory v. Detroit United Rail-
way, 138 Mich. 368, 101 N. W. 546. That case was very similar to
this, and we there decided that testimony like that under consideration
was inadmissible. We said: "Evidence was received, under objec-
tions and exception, to show prior accidents of a similar character
at this same place. Such testimony is only admissible to show no-
tice and knowledge of the defects. Grand Rapids, etc., R. Co. v.
Huntlev, 3S Mich. 537, 31 Am. Rep. 321 ; Corcoran v. City of Detroit,
95 Mich. 84, 54 N. W. 692 ; Alberts v. Village of Vernon, 96 Mich.
549, 55 N. W. 1022. Defendant's counsel upon the trial admitted that
the condition of the rails and street at this point was the same as it
had been from the 1st of December previous. The sole question,
therefore, was the condition of the street, and whether its condition
was negligence. Proof of prior accidents was immaterial, and would
naturally tend to prejudice the defendant." I participated in that de-
cision, and approved the foregoing reasoning, and am bound to admit
that I am as responsible for it as if I had written it. I am compelled
now to say that, in my judgment, the decision was erroneous, and I
think we should take this, the first opportunity, of overruling it.
It is apparent from the above quotation that it was our opinion
that testimony of prior accidents was admissible for the purpose of
establishing defendant's knowledge of the condition of the street, but
not for the purpose of proving negligence. Here is where I think we
erred. I think such testimony has a bearing upon the question of neg-
ligence. None of the authorities cited in the opinion in Gregory v. De-
troit United Ry., supra, touch this question. None of the authorities
of other states which hold that testimony of prior accidents is not ad-
missible have any bearing, for we hold it admissible, and with the ex-
ception of Gregory v. Detroit United Ry., there is nothing in our de-
cisions which indicates that it is not admissible for all legitimate pur-
poses. Such testimony has a legitimate bearing upon the issue of neg-
ligence.
In this case the burden rested upon plaintiff to prove, not only the
existence of this space between the rail and the planking, but also to
prove that it was negligent for the defendant to leave that space in that
condition. In determining the question of negligence, it becomes im-
portant to inquire, should defendant have anticipated that the wheels
of wagons attempting to cross its railway would get caught in this
ice? Testimony that wagons had actually been so caught a dozen
times in two years, especially if, as may be inferred, these occurrences
were known to defendant, answers this question, or at least affords
great aid in answering if. in Hoyt v. Jeffers, 30 Mich. 181. this court
id: "Willi actual notice of the danger from this cause (the throwing
of sparks from the chimney of a sawmill) the defendant might justly
be held to a somewhat stricter measure of diligence than if ignorant
of it, and to sonic extent this might make that negligence which oth-
Sec. 3) MISCELLANEOUS FACTS 909
erwise would not be so." In Smith v. Sherwood Township, 62 Mich.
165, 28 N. W. 806, plaintiff brought suit to recover for damages re-
sulting from his horse shying at a hole in a bridge. This court held
that testimony proving that other horses had shied at this hole was
properly admitted saying: "The evidence was therefore competent to
show the existence of the defect for some time, and that it was calcu-
lated to frighten horses. It tended to show the dangerous character of
the hole in the bridge, and, as more or less publicity would naturally
be given to such occurrences, it also tended to show that knowledge of
such dangerous character was brought to the attention of the town-
ship authorities." Lombar v. East Tawas, 86 Mich. 14, 48 N. W. 947;
Retan v. Railway Co., 94 Mich. 146, 53 N. W. 1094. See, also, Darling
v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; House v. Metcalf,
27 Con. 631 ; District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct.
840, 27 L. Ed. 61 S. I conclude, therefore, that no error was com-
mitted in receiving the testimony under consideration. * * *
Judgment affirmed. 80
WILLIAMS v. INHABITANTS OF WINTHROP.
(Supreme Judicial Court of Massachusetts, 1913. 213 Mass. 5S1, 100 N. E.
1101.)
Tort for personal injuries alleged to have been suffered by the plain-
tiff on August 7, 1902, by reason of a defect at or near the intersection,
of Hutchinson Street and Revere Street, public ways of the defend-
ant, and to have been caused by depressions which caused a carriage
that the plaintiff was driving to tip, throwing out the plaintiff. Writ
dated August 18, 1902.
In the Superior Court, the case was tried before Harris, J. The
material facts are stated in the opinion. There was a verdict for the
plaintiff in the sum of $2,500. The defendant alleged exceptions,
which, after the resignation of Harris, J., were allowed by Jenney, J.
Rugg, C. J. 81 This is an action of tort to recover compensation
for injuries received through an alleged defect in a public way upon
which the plaintiff was a traveler.
1. There was evidence tending to show that the plaintiff was an
so Accord: Alcott v. Public Service Corp. of New Jersey, 78 N. J. Law, 4S2.
74 Atl. 499, 32 L. R. A. (N. S.) 10S4, 13S Am. St. Rep. 619 (1909), annotated.
Compare Ellison, J., in Smart v. Kansas City, 91 Mo. App. 5SG (1902):
" * * * But in cases like this and the Goble Case, the question is not so
much whether a defect is such as that one could fall over it, as it is whether
in the particular instance complained of, the injured party would have fallen
over it if exercising ordinary care in the particular circumstances in which
he was placed. The fact that a man falls on a sidewalk shows that he can
fall there, but it does not show any of several other conditions necessary to
make a case against the municipality. It thus leads to an investigation of a
number of collateral issues which should, when possible, be avoided."
81 Part of opinion omitted.
910 CIRCUMSTANTIAL EVIDENCE (Ch. 5
experienced driver, and that as she turned her horse from one street
to another she was looking at the street ahead, and saw nothing about
the surface of the street to indicate a defect. It was for the jury to
determine, upon this evidence and upon all the circumstances, as men
of common experience, whether the plaintiff was in the exercise of
due care. Thompson v. Bolton, 197 Mass. 311, 83 N. E. 1089; Stoli-
ker v. Boston, 204 Mass. 522, 534, 90 N. E. 927; Cutting v. Shel-
burne, 193 Mass. 1, 78 N. E. 752.
2. There was evidence tending to show that there were two de-
pressions in the street described by some witnesses as holes, one of
which was six or more inches deep, with a mound between. It was
for the jury to say whether this was a defect, taking into account
the season of the year, precedent weather conditions, the amount of
travel upon the street, and all the other attendant conditions. * *
A witness who lived near the place of accident called by the plain-
tiff was permitted to testify, against the objection and exception of
the defendant, that between the day of the accident and the preceding
Sunday she observed that "if an express wagon or grocery team would
come that way they would always go down and jump up and go down
again, and some came around with on« wheel in the air." The
judge admitted this as tending to prove notice to the defendant. It
is plain that such evidence is not admissible for the purpose of showing
a defect in the way. This has been decided too many times to re-
quire more than a reference to one or two authorities. Collins v.
Dorchester, 6 Cush. 396; Marvin v. New Bedford, 158 Mass. 464, 33
X. E. 605. The question of difficulty is, was it admissible on the is-
sue whether the defendant "had or by the exercise of proper care and
diligence might have had reasonable notice of the defect or want of
repair" (R. L. c. 51, § 18) in the way. Generally in this common-
wealth evidence of this character has been excluded. We are aware
of no instance heretofore in which it has been admitted against objec-
tion. In Yore v. Newton, 194 Mass. 250, 80 N. E. 472, evidence of
like character was held to have been excluded properly and it was said
that it might have been done in the exercise of judicial discretion. But
that case is no authority for the proposition that such evidence is
competent or that it may be admitted under any circumstances.
Such evidence has been held in other cases to have been properly
rejected, on the ground of raising collateral issues. Merrill v. Brad-
ford, 110 Mass. 505; Blair v. Pelham, 118 Mass. 420. In Kidder
v. Dunstable, 11 Gray, 342, it was said: "In an action for injury sus-
tained in a highway by reason of an alleged defect therein evidence is
not admissible, either that a person not a party to the action has receiv-
ed an injury at the same place or has safely passed over it." These
cases treat the matter as a positive rule of law. Even if it were to be
regarded as matter of judicial discretion, it would be unfortunate if
the d <n should "not be exercised in the same way under the same
circumstances." Sargenl v. Merrimac, 1'"' Mass. 171, 175, SI N. E.
Sec. 3) MISCELLANEOUS FACTS 911
970, 971 (11 L. R. A. [N. S.] 996, 124 Am. St. Rep. 528). No hard-
ship will befall a plaintiff because notice or reasonable ground to infer
notice to a municipality of a defect in a highway is commonly sus-
ceptible of ready proof by other evidence. Reed v. Northfield, 13
Pick. 94, 23 Am. Dec. 662; Chase v. Lowell, 151 Mass. 425, 24 N. E.
212. Under these circumstances, we think it better to adhere to that
which has been declared and understood generally to be the law of
this commonwealth, and hold that such evidence is inadmissible.
Exceptions sustained.
PEORIA GASLIGHT & COKE CO. v. PEORIA TERMINAL RY.
CO.
(Supreme Court of Illinois, 1S93. 146 111. 372, 34 N. E. 550, 21 L. R. A. 373.^
Bailey, J. 82 This was a proceeding under the eminent domain
law, brought by the Peoria Terminal Railway Company against the
Peoria Gaslight & Coke Company, to condemn for right of way a por-
tion of the premises owned and occupied by the defendant with its
buildings and other improvements and machinery, constituting its gas
works. The premises of the defendant consist of one block of ground,
bordering upon the Illinois river, and being something over 400 feet
in length along the river, and about 300 feet in width, and containing
about three acres. The land sought to be condemned consists of a
strip 50 feet in width, along the margin of the river, and running the
whole length of the defendant's premises, and containing 48-100 of
an acre. At the trial the jury, after hearing the evidence and viewing
the premises, rendered their verdict, fixing the compensation to be paid
the defendant for the strip of land taken at $4,550, and assessing the
damages to the land not taken at $2,750, making the total of the com-
pensation and damages $7,300. Upon this verdict judgment was enter-
ed in the usual form, and the defendant brings the record to this court
by appeal.
As furnishing evidence of the value of the land proposed to be taken,
the petitioner was permitted, against the objection and exception of the
defendant, to prove by several witnesses what the petitioner had paid
other property owners for right of way along the same line, and the
decision of the court admitting that evidence is assigned for error.
The propriety, in cases of this character, of admitting proof of sales of
other similar property, made at or about the same time, though doubted,
and even denied, in some of the states, seems to us to be supported by
the better reason, as well as by the greater weight of authority. 83
82 Part of opinion omitted.
ss Accord: Markowitz v. Kansas City, 125 Mo. 4S5, 28 S. W. 612, 46 Am. St.
Rep. 49S (1894) ; Smith v. Sanitary District of Chicago, 'J00 111. 453, 103 N. E.
254 (1913).
912 CIRCUMSTANTIAL EVIDENCE (Ch. 5
Lewis, Em. Dom. § 443, and cases cited in notes. In this state its ad-
missibility has been expressly affirmed in a few cases, and indirectly
recognized in many others. Thus, in Provision Co. v. City of Chicago,
111 111. 651, a witness was permitted to give evidence as to the price
at which another lot had been sold, without testifying as to the value
of either that lot or of the one sought to be condemned, and it was held
that there was no error in the admission of the evidence, it being said :
rom the very necessities of the case, actual sales of property in the
vicinity, and near the time, are competent evidence so far as they go.
On cross-examination, all circumstances can be drawn out showing that
the given sale fails, and how much, of being a fair criterion of val-
ue." * * *
The theory upon which evidence of sales of other similar property
in the neighborhood at about the same time is held to be admissible is
that it tends to show the fair market value of the property sought to be
condemned ; and it cannot be doubted that such sales, when made in
the free and open market, where a fair opportunity for competition
has existed, become material and often very important factors in de-
termining the value of the particular property in question. But it seems
very clear that, to have that tendency, they must have been made un-
der circumstances where they are not compulsory, and where the ven-
dor is not compelled to sell at all events, but is at liberty to invite com-
petition among those desiring to become purchasers. Accordingly,
among the various decisions in this or other states to which our at-
tention has been called, or which our own researches have discovered,
we find none in which the price paid at, a forced or compulsory sale
has been admitted as competent evidence of value.
On the other hand, in Dietrichs v. Railroad Co., 12 Neb. 225, 10
N. W. 718, evidence of the prke paid at an administrator's sale for
the very lots sought to be condemned was held to be incompetent. In
discussing this subject, Mr. Lewis, in his treatise on the Law of Emi-
nent Domain, says : "What the party condemning has paid for other
property is incompetent. Such sales are not a fair criterion of value,
for the reason that they are in the nature of a compromise. They are
affected by an element which does not enter into similar transactions
made in the ordinary course of business. The one party may force a
sale at such price as may be fixed by the tribunal appointed by law.
In most cases the same party must have the particular property, even
if it costs more than its true value. The fear of one party of the
other to take the risk of legal proceedings ordinarily results in the one
party paying more, or the other taking less, than is considered to be
the fair market value of the property. For these reasons, such sale-
would not seem to be competent evidence of value in any case, whether
in a proceeding by the same condemning party or otherwise." Lewis,
Eni. Dom. § 447.
Sec. 3) MISCELLANEOUS FACTS 913
The text of the learned author here quoted seems to be well sup-
ported by the authorities. 8 ' * * *
We are referred to no decision in this state in which the opposite
view as to the admissibility of evidence of the character of that now
under consideration has been taken. In fact, so far as we are aware,
the question has never been passed upon by this court, and we are there-
fore at liberty to adopt the rule which seems to us to be most fully
supported by reason and authority. Acting upon that principle, we
are disposed to concur in the rule supported by the authorities above
cited, and to hold that the evidence of the prices paid by the railroad
company to other property owners for right of way along its line was
incompetent, and was improperly admitted. * * *
Judgment reversed. 85
ROBINSON v. NEW YORK ELEVATED R. CO. et al.
(Court of Appeals of New York, 1903. 175 N. Y. 219, 67 N. E. 431.)
Bartlett, J. 86 This is the usual elevated railroad case, to recover
fee and rental damages, and, under the unanimous decision, the de-
fendant railway companies are confined to the argument of legal errors
duly raised by exceptions.
The counsel for the appellants insists that the learned trial judge ad-
mitted, over objection and exception, evidence regarding sales and
rentals of specific pieces of property on Pearl street, other than the
premises in suit in violation of the rule laid down by this court in the
case of Jamieson v. Kings County Elevated Railway Co., 147 N. Y.
322, 325, 41 N. E. 693. Judge Finch there said: "The plaintiff
sought to prove the evil effect of the road in diminishing values by the
process of calling the owners of property in the vicinity, and proving in
each case what the particular premises owned by the witness rented for
before the road was built, and what thereafter. There were objections
and exceptions. Such a process is not permissible. Each piece of evi-
dence raised a collateral issue (Gouge v. Roberts, 53 N. Y. 619), and
left the court to try a dozen issues over as many separate parcels of
si In the omitted passage the court reviewed Kelliher v. Miller, 97 Mass. 71
Mm;7); Fall .River Print Works v. City of Fall River, 110 Mass. !L's (1872);
Cobb v. City of Boston, 112 Mass. 181 (1S73) ; Presbrey v. Old Colony & X.
Ry. Co., 103 Mass. 1 (1S69) ; Donovan v. City of Springfield, 125 Mass 371
(1S7S) ; Tyler v. Mather, 9 Gray, 183 (1S57) ; Howard v. Citv of Providence
6 R. I. 514 (I860); City of Springfield v. Schmook, GS Mo. 394 (ISTm ;
Brunswick & A. R. Co. v. McLaren, 47 Ga. 546 (1873) ; Amoskeag Mfg. Co v
Worcester, 60 N. II. 522 (1SS1).
so Contra: Curley v. Mayor, S3 N. J. Law, 760, 85 Atl. 197, 43 L. R. A (X
S.) 985 (1912), annotated,
so Part of opinion omitted.
Hint.Ev. — 5S
914 CIRCUMSTANTIAL EVIDENCE (Ch. 5
property. We have held such a mode of proof to be inadmissible.
Huntington v. Attrill, US N. Y. 365, 23 N. E. 544; Matter of Thomp-
son, 127 N. Y. 463, 28 N. E. 389, 14 L. R. A. 52. The elevated railroad
cases in this court, to which the plaintiff refers us, give no warrant
for such a mode of proof, but indicate that the general course and
current of values must be shown by persons competent to speak, leav-
ing to a cross-examination any inquiry into specific instances, if such
be deemed essential. Almost all the evidence of depreciation was of
the erroneous character, and we cannot say that it may not have worked
harm to the defendant." The rule thus laid down was followed in
Witmark v. New York Elevated R. Co., 149 N. Y. 393, 44 N. E. 78,
and other cases.
The course of procedure under this rule may be thus briefly stated:
Plaintiff, having called as a witness an expert, is permitted to show
the general course and current of values in the immediate vicinity,
leaving to a cross-examination any inquiry into specific instances, if
such be deemed essential ; the reason for the rule being that to permit
evidence of the rental or fee value of other premises would raise in
each case a collateral issue to be tried. When the plaintiff's expert wit-
ness is cross-examined by the defendant as to specific instances, it is
competent, upon a redirect examination, for the plaintiff to make such
full inquiry as he may be advised as to each one of the specific instances
brought out on cross-examination. In the case at bar the plaintiffs
swore their expert and conducted the direct examination in compliance
with the rule. On cross-examination the defendants made inquiry as
to about 12 pieces of other property in the immediate neighborhood.
On redirect examination the plaintiffs examined the witness, over the
objection and exception of the defendants, in regard to the fee or rent-
al value of some 16 additional pieces of property in the vicinity of the
premises in suit. We are of opinion that the introduction of evidence
by the plaintiffs in regard to these additional pieces of property in the
immediate neighborhood was in direct violation of the rule we have
discussed. It was for the plaintiffs to prove the general course of
values, and for the defendants to give evidence of specific instances.
If it be true that such evidence on the part of the defendants opened the
door, as the respondents' counsel claims, for the introduction of as
many additional pieces of property as they saw fit, it would result in
raising numerous collateral issues, and lead to the utter subversion of
the rule laid down in the famieson Case. * * *
Judgment reversed. 87
" Followed In Bourke v. Holmes St. R. Co., 221 Mo. 46, 119 S. W. 1094, 133
Am. St. Kep. 4GS (1909).
Sec. 3) MISCELLANEOUS FACTS 01
SHARP v. UNITED STATES.
(Supreme Court of the United States, 1903. 191 U. S. 341, 24 Sup. Ct. 114,
48 L. Ed. 211.)
The plaintiff in error has sued out this writ for the purpose of re-
viewing a judgment of the United States circuit court of appeals for
the third circuit, which affirmed a judgment of the district court of
New Jersey, awarding damages to plaintiff in error for the taking of
certain property of his on the Delaware River, near Fort Mott, in
that state. The award of the jury was, in the opinion of the plaintiff
in error, entirely inadequate as just compensation to him as the owner
of the land for its taking by the government. * * *
Mr. Justice PEckham, 88 after making the foregoing statement of
facts, delivered the opinion of the court. * * *
The errors assigned and upon which the argument was had in the
circuit court of appeals were twelve in number. They are in sub-
stance the same here. The first seven refer to the rejection of evidence
in regard to offers to purchase the lands from the plaintiff in error.
It was held by the trial court, in response to the proposal to give
such evidence, that the plaintiff in error could not testify to different
offers he had received to purchase the property for hotel, residential,
or amusement purposes, or for a ferry, or a railroad terminal, or
to lease the property for hotel purposes.
Upon principle, we think the trial court was right in rejecting the
evidence. It is, at most, a species of indirect evidence of the opinion
of the person making such offer as to the value of the land. He may
have so slight a knowledge on the subject as to render his opinion of
no value, and inadmissible for that reason. He may have wanted the
land for some particular purpose disconnected from its value. Pure
speculation may have induced it, a willingness to take chances that
some new use of the land might, in the end, prove profitable. There
is no opportunity to cross-examine the person making the offer,
to show these various facts. Again, it is of a nature entirely to un-
certain, shadowy, and speculative to form any solid foundation for
determining the value of the land which is sought to be taken in con-
demnation proceedings. If the offer were admissible, not only is it al-
most impossible to prove (if it exist) the lack of good faith in the per-
son making the offer, but the circumstances of the parties at the time
the offer was made as bearing upon the value of such offer may be
very difficult, if not almost impossible, to show. To be of the slightest
value as evidence in any court, an offer must, of course, be an honest
offer, made by an individual capable of forming a fair and intelligent
judgment, really desirous of purchasing, entirely able to do so, and to
88 Statement condensed and part of opinion omitted.
916 CIRCUMSTANTIAL EVIDENCE (Cll. 5
give the amount of money mentioned in the offer, for otherwise the
offer would be but a vain thing. Whether the owner himself, while
declining the offer, really believed in the good faith of the party mak-
ing it, and in his ability and desire to pay the amount offered, if such
offer should be accepted, or whether the offer was regarded as a mere
idle remark, not intended for acceptance, would also be material upon
the question of the bona fides of the refusal.
Oral and not binding offers are so easily made and refused in a mere
passing conversation, and under circumstances involving no responsi-
bility on either side, as to cast no light upon the question of value. It
is frequently very difficult to show precisely the situation under which
these offers were made. In our judgment they do not tend to show
value, and they are unsatisfactory, easy of fabrication, and even dan-
gerous in their character as evidence upon this subject. Especially is
this the case when the offers are proved only by the party to whom
they are alleged to have been made, and not by the party making them.
There is no chance to cross-examine as to the circumstances of the
party making the offer in regard to good faith, etc. Evidence of this
character is entirely different from evidence as to the price offered and
accepted or rejected for articles which have a known and ready sale
in the market. The price at the stock exchange of shares of stock in
corporations which are there offered for sale or dealt in is some evi-
dence of the value of such shares. So evidence of prices current
among dealers in those commodities which are the subject of frequent
sales by them would also be proper to show value. This evidence is
unlike that of offers to purchase real estate, and affords no ground
for the admissibility of the latter.
A reference to the authorities shows them to be almost unanimous
against receiving evidence of this kind. Counsel have cited many
cases on this subject and they are contained in the margin. 89 Most
of them are clearly against the admissibility of the evidence, while
89 Fowler v. Middlesex County Cora'rs, 6 Allen (Mass.) 92, OG (1S63) ; Wood
v. Firemen's Fire Ins. Co., 126 Mass. 316, 319 (1S79) ; Thompson v. Boston,
l is Mass. 387, 19 N. E. 400 (1889); Anthony v. New York, P. & B. R. Co., 162
Mass. 60, 37 N. B. 780 (1894); Cochrane v. Com., 175 Mass. 299, 56 N. E. 610,
7- Am. St. Rep. 491 (1900)j Hine v. Manhattan R. Co., 132 N. Y. 477, 15 L. R.
A. 591, 30 X. E. 985 (1892); Keller v. Paine, 34 linn (N. Y.) 167 (1884); Law-
rence v. Metropolitan Kiev. JR. Co., 8 N. Y. Supp. 326 (1890); Young v. At-
wood, 5 Hun, 234 (1875); Parke v. Seattle, 8 Wash. 78, 35 Pac. 594 (1894);
Santa Ann v. Harlin, 99 Cal. 538, B4 Pac. H'J l (1893); St. Joseph & D. C. R.
Co. v. Orr, 8 Kan. 419, 424 (1871): Minnesota Belt Line R. & Transfer Oo,
v. Glnek, 46 Minn. 463, 48 N. W. L94 (1891); Louisville, N. O. & T. R, Go. v.
Ryan, 64 Miss. 399, 8 South. 173 (1886).
As distinguished from the general rule, sec Whitney v. Thacher, 117 Muss.
523 (1875); Cliquot's Champagne, :: Wall. 114, ill, sub nom. 125 Baskets of
Champagne v. United States, L8 L. Ed. L16, L20 (1865); Chaffee v. United
. is Willi. 516, -ML', 21 L. Ed. 90s, !>12 (187:5), explaining Cliquot's Cham-
pagne; Muller v. Southern Pacific Branch R. Co., 83 Cal. 240. 23 Pac. 265
90), overruled by Santa Ana v. Barlin, 99 CaL 538, 34 Pac. 224 (1893);
Harrison v. Glover, ~-± N. Y. 451 (1878).
Sec. 4) PHYSICAL OBJECTS 917
some, which at first sight might be regarded as exceptional, will be
found upon closer examination to recognize the general rule as al-
ready stated. * * *
Judgment affirmed.
SECTION 4.— PHYSICAL OBJECTS ••
HOOK v. PAGEE et al.
(Supreme Court of Appeals of Virginia, 1811. 2 Munf. 379.)
In a suit for freedom, the jury returned a verdict in the following
words: "We of the jury find that the plaintiff Nanny Pagee was
brought into the commonwealth of Virginia from the state of North
Carolina, by Thomas Jones, subsequent to the fifth of October, 1778;
that if the said plaintiff was a slave, it doth not appear to the jury
that the said Thomas Jones did comply with the provisions of the
act, entitled 'An act for preventing the further importation of slaves.'
(a) We of the jury also find, from inspection, that the said plaintiff
Nanny Pagee is a white woman. We of the jury, therefore, find that
the plaintiffs are free persons and not slaves; and we find for them
one penny damages."
Judgment for the plaintiffs, and appeal. * * *
COALTER, J. 91 * * * But r if I am wrong as to this, and if the
first point is found under circumstances that would require another
trial, if that were the only point on which the plaintiffs could suc-
ceed, yet I am clear that there can be no objection to the other find-
ing, to wit, "that the plaintiff Nanny is a white woman."
The jury find this fact upon their own knowledge, in other words,
by inspection. Was this improper?
The jury are to ascertain the fact one way or the other and from
evidence.
"All certainty is a clear and distinct perception; and all clear and
distinct perceptions depend upon a man's own proper senses ; and, as
all demonstration is founded on the view of a man's own proper senses,
by a gradation of clear and distinct perceptions, so all probability is
so This topic might properly have been treated as a separate problem, rath-
er than as a subdivision of circumstantial evidence, because it involves a dis-
tinct method of furnishing the jury with information, and in seme instances
a thing produced in court might directly establish an ultimate fact in issue;
but since in most instances inspection of a thing is used, instead of a descrip-
tion of it, as a basis for some further inference, and in general the questions
that arise are those of relevancy, undue prejudice, practical inconvenience,
and the like, it seemed to the Editor that it might fairly be placed in tbe
present chapter.
9i Statement condensed and part of opinion of Coalter, J., and opinions of
Cabell and Brooke, J.T., omitted.
918 CIRCUMSTANTIAL EVIDENCE (Ch. 5
founded upon obscure and indistinct views, or upon report from the
sight of others."
If the plaintiff Nanny had not been before the jury, they must have
found their verdict upon the testimony of others, which would have
amounted only to a probability. But here, they have the highest evi-
dence, the evidence of their own senses; and upon that they find a
verdict: in other words, the jury find a verdict upon their own knowl-
edge. They find a fact which makes it impossible for the defendant
rightfully to hold this woman and her children as slaves; and they
superadd to this finding, "that, therefore, they are free persons, and not
slaves." Touching the evidence, as to this fact, there is no objection,
or exception. The defendant introduces witnesses to prove that she is
not a white woman. Those witnesses give their opinions from the
evidence of their senses: no person proves her birth, or parentage.
The jury believe their own senses, in preference to the opinions of the
witnesses ; and, if the court were in error on every other point, this
fact, being fairly and legally found, must conclude the case.
I am, therefore, in favour of affirming the judgment.
Judgment affirmed.
MORTON v. FAIRBANKS.
(Supreme Judicial Court of Massachusetts, 1831. 11 Pick. 368.)
This was an action on the case for a fraud in the performance of
a special contract, alleged to have been made by the defendant with
the plaintiff, to manufacture a certain quantity of shingles for the
plaintiff. * * *
Among other evidence introduced by the plaintiff to show a fraud
in the manufacture and packing of the shingles, a trunk full of what
was alleged by the defendant to be shingles was brought into court and
exhibited to the court and jury. These were proved to have been
taken out of bunches of shingles made by the defendant for the plain-
tiff. Upon inspection of them the court considered that they could in
no sense be deemed shingles; that no prudent person would ever
think of using them as shingles upon any building; that they were
mere chips. The defendant contended that it was the province of the
jury, and not of the court, to determine the nature of the things
brought into court in the trunk, and whether they were or were not
to be considered as shingles. But the judge ruled that as it was ap-
parent by inspection that they were not shingles, and there was no
doubt about it, it was proper that the court should decide the ques-
tion. * * *
It was proved that the shingles were delivered to the plaintiff in
bunches, that the outsides of the bunches appeared well, and that the
plaintiff", at the time of the delivery and until he had paid the de-
fendant, had no knowledge thai any of the shingles were defective.
Sec. 4) PHYSICAL OBJECTS 919
The jury found a verdict for the plaintiff.
The defendant filed exceptions to the foregoing decisions of the
judge.
PER Curiam. 82 * * * The second exception relates to the de-
cision of the judge, that the articles brought into court were not shin-
gles. The defendant contended, that whether they were shingles or
not, was a question of fact for the jury, and that his rights were not to
be affected by the circumstance of the evidence being more or less
strong on that question ; but it was ruled, that as the point was clear
upon inspection, it was to be decided by the court. As the jury would
have the whole case before them, this may seem to be a speculative
objection; but we think that in strictness the point thus decided was
a question of fact, and the jury may have been unduly influenced,
for they may have considered themselves not at liberty to find contrary
to the decision of the court. * * *
Exceptions sustained. 93
CLOSE et al. v. SAMM et al.
(Supreme Court of Iowa, 1SG9. 27 Iowa, 503.)
Action to recover damages for flowing water back upon plaintiffs'
mill-wheels, premises, etc., and injury thereby to his water power.
The mills and dams of the respective parties are situated on the Iowa
river, a short distance above Iowa City, and about two miles
apart. * * *
The cause was tried to a jury, and a large amount of testimony was
introduced by the respective parties; and the jury, by direction of the
»2 Statement condensed and part of opinion omitted.
»3 Compare Kennedy, J., in Duncan v. Duncan, 1 Watts (Pa.) 322 (1833):
"It has been contended that the riband inserted in the parchment, in the
manner described, was sufficient in law to constitute a seal, if so intended
by the party; and that it ought, therefore, to have been received in evi-
dence, and submitted to the jury as a matter of fact to be decided on by
them, whether the riband was used with that intent or not. This argument
may be ingenious, and, at first view, somewhat plausible ; but a moment's re-
flection will show, as it appears to me, that it is not solid, and cannot an-
swer the design of the law in regard to seals. I apprehend that whether an
instrument of writing be under seal or not, is a question of law to be solved
by the court from the inspection of the instrument itself. It is highly im-
portant to the interests of society, that every man should be able to determine
with certainty upon looking at an instrument of writing, whether, if genuine,
it is a deed or not, that is, whether it has what the law denominates a seal
affixed to it or not ; but it must be obvious that unless the true character of
a seal is fixed by the law, which is uniform and certain, and may be known
by every one, it will be oftentimes impossible to determine whether an in-
strument of writing is a deed or not. If parties are permitted to substitute
any mark or device which their imagination may suggest for a seal, and it is
to "be made a question of fact to be decided by a jury whether it was so in-
tended or not ; it will not only introduce great confusion and uncertainty, but
a principle which cannot be carried into effect without repealing some of the
provisions of our statutes providing for the recording of deeds."
920 CIRCUMSTANTIAL EVIDENCE (Ch. 5
court proceeded, under the charge of the sheriff, to inspect the dams,
wheels and premises testified about, and did inspect them. The jury
returned a verdict for defendants. The plaintiffs appeal.
Cole. T. 04 * * * The next error assigned is upon the giving of
the eighth instruction, which is as follows : "You will determine from
all the evidence in the case, and all the facts and circumstances dis-
closed on the trial, including your personal examination, whether
the water was by the act of the defendant backed up on the premises
of the plaintiffs to the damage of their water power, as alleged. If
you find that it was backed up to, or about, the line or beyond the line
of plaintiff, but not in such a manner or to such a depth as to, at that
time, or the commencement of this suit, cause any perceptible damage
to the water power of plaintiffs, you will inquire no further, but find a
verdict for the defendants."
Two points are made in argument upon this instruction: First. In
allowing the jury to base their verdict, in any degree, upon their per-
sonal examination. Second. In requiring them to find perceptible
damage to the water power of plaintiffs before they could return a
verdict for them. During the progress of the trial, "the jury, by con-
sent of parties and by direction of the court, proceeded, under charge
of the sheriff, to inspect the dams, wheels and premises testified about,
and did so inspect," as shown by the transcript. This inspection by
the jury was ordered under the Revision, section 3061. 90 Whenever,
in the opinion of the court, it is proper for the jury to have a view of
the real property which is the subject of controversy, or of the place
in which any material fact occurred, it may order them to be con-
ducted in a body, under the charge of an officer, to the place, which
shall be shown to them by some person appointed by the court for that
purpose; while the jury are thus absent, no person other than the per-
son so appointed shall speak to them on any subject connected with
the trial." (A similar provision is made as to criminal trials. See sec-
tion 4800.)
The question then arises as to the purpose and intent of this statute.
It seems to us that it was to enable the jury, by the view of the prem-
ises or place, to better understand and comprehend the testimony of
the witnesses respecting the same, and thereby the more intelligently
to apply the testimony to the issues on trial before them, and not to
make them silent witnesses in the case, burdened with testimony un-
known to both parties, and in respect to which no opportunity for
cross-examination or correction of error, if any, could be afforded ei-
ther party. If they are thus permitted to include their personal ex-
amination, how could a court ever properly set aside their verdict as
»« Statemenl condensed and part of opinions omitted.
"Thai at common law, Independent of any statute, the court might prop-
erly in Its dl cretion order a view by the jury, Bee Springer v. Chicago, 135.
111." 552, 26 n. i:. 514, L2 U K. A. 609 (1891), and cases there cited.
Sec. 4) PHYSICAL OBJECTS 921
being against the evidence, or even refuse to set it aside without know-
ing the facts ascertained by such personal examination by the jury? It
is a general rule, certainly if not universal that the jury must base their
verdict upon the evidence delivered to them in open court, and they
may not take into consideration facts known to them personally, but
outside of the evidence produced before them in court. If a party
would avail himself of the facts known to a juror, he must have him
sworn and examined as other witnesses. 96
"Wright, J. (dissenting). * * * The language of the same in-
struction, however, which allowed the jury to use their "personal ex-
amination" of the premises in determining whether there was back wa-
ter, etc., is the material error relied upon in this connection.
As to this, I say briefly, that the jury had a view of the premises,
and that by order of the court. This the law allows. That they had
any thing else than this view is not pretended. If the only object of
the statute was to enable the jury to better understand, and the more
intelligently to apply the testimony of the witnesses, then I confess that
I do not see why, upon this basis alone, they might not, in determining
the ultimate facts, "include," or made use of, this "personal examina-
tion." If they use it to enable them to understand and apply the tes-
timony, then, it seems to me, they are possessed of facts unknown to
the parties — and whether the impressions received and the applica-
tion of the testimony are true or false, can no more be discovered than
if they have actually "burdened" themselves with testimony. And
even in this view, therefore, the construction of the instruction would
be unwarranted.
But I believe the statute intended that this personal examination or
view should be used with the facts and circumstances, to aid in the de-
termination of the cause. Thus, to take an illustration drawn from
the criminal statute (which is similar to that provided for civil cases,
Revision, §§ 3061, 4S00) — if, in a homicide, the witnesses differ as to
the distance between the parties as at the time of the fatal shot, those
on one side placing it at fifty, and those on the other at one hundred,
feet, and there is no disagreement as to the exact locality, I say the
jury, having a view of the premises, have a perfect right to — that they
must, that they cannot help calling to their aid their view of the local-
ity and distance ; and from these, with the testimony, they reach their
conclusions. So, too, in a civil case, they may view "the place where
any material fact occurred." A. charges that B. assaulted him in
a building near to an inhabited dwelling to the north, but that the
building had no window or other opening on that side, and that his
cries for help were, hence, not heard. The existence or non-existence
of such window becomes material, and the testimony is in direct con-
es Accord: Roberts v. City of Philadelphia, 239 Pa. 339, 86 Atl. 926 (IS
senible. See, also, cases collected in note to People v. Thorn, 42 L, R. A. ;J0S
(1898).
922 CIRCUMSTANTIAL EVIDENCE (Cll. 5
flict. The jury are conducted to the place, and now, I ask, what are
they to do? Make use of the view to apply the testimony, or see and
know for themselves the exact condition of the wall — whether there
is or not such an opening? I say the latter. Or to take another il-
lustration, drawn from this case : There was disagreement as to wheth-
er there was or was not a perceptible current immediately below plain-
tiffs' dam. One party attempted to establish that there was, and, hence,
that there was no back-water ; the other, that there was not, and hence,
interference with plaintiffs' power. Now, by no means claiming that
the jury could do more than view the premises, I maintain that they
could not do otherwise than look at the actual condition of the wa-
ter, and that the view thus had becomes an aid; is to them, and for
them, and for each and every man, testimony. It is said there is no
chance for cross-examination; that the basis of the juror's conclu-
sion may be erroneous. I answer, "All this is equally true, if he is
to have the view only to better" understand and explain the testi-
mony. And so I might illustrate my views in many other ways, but
this must suffice. And if to this conclusion, the objection is that a
court could not properly set aside a verdict, as being against evidence,
because it could not know what it was, I answer, first, that this "view"
is not allowed, except in the opinion of the court it is proper. And,
second, the legislature doubtless considered this very difficulty, and yet
deemed it better to give this power — the court, judging when it should
be exercised — even though the difficulty of knowing upon what the ver-
dict was based might be really increased, than to withhold it entirely.
And especially so as the parties can be heard before the order is made,
when this very objection, as applied to the particular case, can be fully
presented and as fully considered. * * *
Judgment reversed.
HINNERS et al. v. EDGE WATER & FT. L. R. CO.
(Court of Errors and Appeals of New Jersey, 1908. 75 N. J. Law, 514, 69
Atl. 1G1.)
Garrison, J. 97 This writ of error is brought by the railroad com-
pany to reverse the judgment rendered in the circuit court of Bergen
county upon an appeal from the award of commissioners in a con-
demnation proceeding. * * *
A subject of more general interest is presented by the assignment
ed upon the exception to the language in which the trial court in-
structed the jury touching the use to be made by them of the view of
the premises which in accordance with the requirement of the statute
had been had. What the court said upon this point was as follows :
OU have listened to all the evidence in this case, but you may use
r own judgment in connection with the testimony that is before
m Part of opinion omitted.
Sec. 4) PHYSICAL OBJECTS 923
you. The whole question is a question of opinion, and the very object
in sending you to look at this property was to enable you to form your
own opinion as to the question which you are now called upon to decide,
giving due consideration, of course, to the evidence which has been
presented, and giving it such weight as you think it is entitled to. But
nevertheless beyond that you have a right to use your own judgment
in connection with the testimony, and say what you think the landown-
ers ought to have for the value of the strip taken, and the cost of re-
storing their plant on some otiier part of the property."
On the part of the plaintiff in error, it was insisted that by this charge
the jury were instructed that they might "bring in a verdict in accord-
ance with their own opinions irrespective of the evidence." The de-
fendant in error, on the other hand, contends that the jury was not
instructed to give any such probative force to their view independently
of or without due regard to the evidence, but that they were, on the
contrary, expressly told to use their view in forming their judgment
of the evidence and in reaching an opinion with reference thereto.
We think that the latter is the fair interpretation to be put upon the
language in question, and that the trial judge did not fall into the error
imputed to him by the former construction of his charge. Thus inter-
preted the instruction was a proper one. The view of the premises
in condemnation cases is made not under the thirty-first section of the
jury act (Gen. St. p. 1851), but under the express direction of the
condemnation act (P. L. 1900, p. 79). Considering the radical differ-
ences that exist between the complex issues submitted to ordinary trial
juries and the single question raised upon the appeal in condemnation
cases, it may well be doubted whether the stringent rule laid down as
to the limited function of an ordinary jury of view is at all applic-
able to condemnation proceedings. Speaking for myself, I think
that it is not; and in many jurisdictions the distinction has been
observed and acted upon. It is not, however, necessary in the pres-
ent case to lay any especial emphasis on this distinction, for the rea-
son that the charge under review does not when reasonably inter-
preted give any undue weight or latitude to the view that, under
the statute, the jury is expressly required to make. In effect, the jury
were told that they might make use of their view of the premises in
forming their judgment of the testimony and in reaching an opinion
upon its consideration, and that their opinion upon the questions they
were to decide should be based upon the testimony as thus under-
stood by them and applied to what they had seen. This I think is a cor-
rect charge. If the jury may not make this use of their view, it is
impossible for me to conceive of any reason for the imperative re-
quirement of the statute that a view must be had.
The circumstance that the jury's judgment of the testimonv may in
some instance be modified, and in extreme instances perhaps controlled
by the result of their view, instead of militating against the construc-
tion contended for is the strongest reason for its adoption; for it is
924 CIRCUMSTANTIAL EVIDENCE (Ch. 5
admitted on all sides that one of the legitimate uses of a view is that
the jury may understand the testimony. This being so, it may well
follow as to some testimony that to understand it is to discredit it,
while as to other testimony to understand it is to accept it even in the
face of contradiction or denial. For instance, if the testimony were
that a building was of insignificant size and in a tumble-down condi-
tion and the jury upon viewing the building saw that it was of large
dimensions and in perfect repair, the testimony that contradicted the
jury's observation would go for nothing, not because it had been over-
powered by illicit evidence, but simply because it was understood by the
jury for what it was worth. Instances may be multiplied in which the
jury might properly use its view to check up the testimony adduced by
the' parties without any infringement by the jury of the rule that pro-
hibits the importation into the case of outside, or even of inside, in-
formation through some other channel than that recognized by the law.
The language of the charge in the present case is entirely consistent
with this legitimate use by the jury of its view of the premises, and
can only by the most strained construction be held to do violence to it.
In what is thus said it must not be inferred that the condemnation act
may not be subject to an even broader construction of its requirement
for a view of the premises by the jury.
The case of De Gray v. N. Y. & N. J. Tel. Co., 68 N. J. Law, 454, 53
Atl. 200, relied upon by the plaintiff in error is entirely without appli-
cation. That case was not at all concerned with the question of a
view; indeed, neither the word nor the subject is once mentioned by
Mr. Justice Fort in the opinion delivered by him in the Supreme Court.
What that case held was that "the experiences of the jurors" as to
whether telephone poles detracted from the market value of abutting
land was an extrajudicial and improper means of arriving at a verdict.
But obviously a decision upon that point can have no bearing upon a
view that is expressly required by a statutory proceeding.
A discriminating and comprehensive statement of judicial decision
upon this subject is contained in 15 Cyc. p. 8S0, subtit. "Eminent Do-
main" ; and a similarly instructive summary will be found under the
same caption in 7 Ency. PI. & Pr. p. 581.
Our conclusion is that the points relied upon by the plaintiff in er-
ror direct our attention to no ground for the reversal of the judgment
before us, which is therefore affirmed.
Judgment affirmed. u8
»«In Carpenter v. Carpenter (X. TT.) 101 Atl. 028, L. 1*. A. 1917F, 974
(1917), the j i i « i - - ' - I.' lore whom a case was tried without a jury made a per-
.,,, ,,r .-! place in controversy which was beyond the state line
, inii J, i that in so doing he c inducted a part of the (rial outside of
on. in overruling this objection, Walker, J., said:
••in some sense the purpose of ;i view is the acquisition by the jury of a
special and resl ricted kind of evidence, Which Hi.- trial court in its discretion
, Jh , . to the Jury in reaching a verdict. The Jury are not sent
out to get evidence generally, or to examine physical facts not authorized in
Sec. 4) PHYSICAL OBJECTS 925
the order. They do not hear oral testimony ; no witnesses are examined ; no
arguments are made. They merely see such physical objects as are properly
shown to tlicin, and receive impressions therefrom. They get a mental pic-
ture of the locality, which as sensible men they carry back to the courtroom
and use in their deliberations as evidence. It would therefore be senseless to
say that in this restricted sense the information thus gained by actual in-
spection is not evidence which the trier of the fact is authorized to use in
reaching a verdict, and which counsel are entitled to comment upon in argu-
ment. The acquisition of such evidence does not depend upon the oaths of
witnesses, is not tested by cross-examination, and presents no questions of
law calling for a ruling of the court on the grounds of admissibility or rele-
vancy. The court as such has no function to perform when such evidence
is presented, for it depends entirely upon the jury's ability to observe what is
pointed out to them. No trial is had while the view is in progress, and the
court is not in session at the place of the view for the trial of the case.
"The procedure by which special evidence of the character indicated be-
comes available is in fact based upon a useful rule of necessity, without
which much valuable information clearly bearing upon the trial of cases
would be withheld from the tribunal charged with the duty of deciding the
facts. It provides a method by which evidence of a peculiar and restricted
character may be obtained in the absence of the court and without the ob-
servance of the rules deemed essential in the production of evidence given in
court. It may not be inaccurate to say that this procedure is anomalous, but
is justified in fact as a necessary exception to the general rule that evidence
must be produced in court subject to numerous judicial restrictions and direc-
tions.
"There is much apparent conflict in the language used by courts in defining
the object or purpose of ordering or permitting views to be taken. In some of
the authorities it is said that a view is, in no proper sense, intended to fur-
nish evidence, but to afford a means by which the jury can better understand
and apply the strictly legal evidence already in the case or to be thereafter
submitted. This restrictive language is derived from St. 4 & 5 Anne, c. 16,
§ 8, where in the discretion of the court jurors may be ordered to take a view
of the 'place in question, in order to their better understanding the evidence
that will be given upon the trials of such issues.' Similar expressions occur
in the statute law of many of the scates. In this state the statute provides
that: 'In the trial of actions involving questions of right to real estate, or in
which the examination of places or objects may aid the jury in understanding
the testimony, the court, on motion of either party may, in their discretion,
direct a view of the premises by the jury, under such rules as they may pre-
scribe.' P. S. c. 227, § 19. It is not clear how this distinction proves the
proposition that the information derived from a view is not for all practical
purposes evidence, or that it is not as much evidence as similar information
conveyed by an inspection of a physical object exhibited to the jury in court.
"Other authorities hold that the information obtained by the jury upon a
view is as much evidentiary in its character as the sworn testimony of wit-
nesses regularly received in court, while still other courts regard it as evi-
dence to be considered like sworn testimony, subject to the qualification that
alone it is not sufficient to support a verdict. For cases in support of these
differing opinions see note in 42 L. R. A. 385. While the purpose of a view
is not to obtain 'evidence' in the broad sense of that term or to permit the
jury to use their power of observation while taking a view to discover mate-
rial facts not apparent from the actual situation of the things under obser-
vation, it is difficult to understand why the impressions made upon their
minds by an inspection of a physical object regularly pointed out to them
should not be permitted, in a legal sense, to have the force of evidence, when
as a matter of simple mental reasoning honest jurymen could reach no other
result. If the object is black when seen by the jury it would be absurd to
expect them to find that it was white, in the absence of evidence Indicating
that they had been imposed upon. An instruction that although they knew
from an authorized observation of it that it was black, they could not, as a
matter of law, find it was of that color, because they had no legal evidence
of it. would strike the ordinary mind as a strange and unreasonable doctrine
926 CIRCUMSTANTIAL EVIDENCE (Ch. 5
ORSCHELN v. SCOTT.
(Court of Appeals of Missouri, 1901. 90 Mo. App. 352.)
Ellison, J." This is an action for damages alleged to have re-
sulted to plaintiff by reason of defendant's assault upon him with a
knife whereby one of his eyes was cut out. The verdict and judgment
in the trial court was for plaintiff in the sum of $3,000. Of this sum
the verdict stated that $2,500 was for compensatory, $500 was for
punitive damages. The answer, besides a general denial, pleaded plain-
tiff's own first assault. * * *
The court gave an instruction that in estimating the damages the
jury could consider the age of plaintiff. He was before the jury, and,
as already stated, was a witness in the cause. Yet there was no evi-
dence offered as to his age, and the defendant claims that such omis-
sion rendered the instruction improper. It was held by this court
in two personal injury cases that in the absence of evidence offered in
that behalf, it was error to give such instruction. Hinds v. City of
Marshall, 22 Mo. App. 208; Gessley v. Railroad, 26 Mo. App. 156.
Notwithstanding these cases, we are of the opinion that in a case of
this nature, calling for a character of damages which are not the
subject of ascertainment with mathematical precision, the inspection
and observation of the jury is all that is necessary as a base upon
which to place an instruction as to age. The question of age has its
influence chiefly as to prospective damages during the life of the party.
Such damages are necessarily uncertain and their mode of ascertain-
based upon a refinement in legal reasoning subversive of the just and prac-
tical administration of justice. "There is no sense in the conclusion that the
knowledge which the jurors acquired by the view is not evidence in the case.'
1 Thomp. Trials, § 893 ; 2 Wig. Ev. § 1168 ; Tully v. Railroad, 134 Mass. 499
[1883] ; 7 Enc PI. & Pr. 581. There is little merit in the contention that the
libelant had no means of knowing what impressions the evidence produced by
the view had upon the justice, and hence that no way was open to meet or
explain them ; for this is equally true when a jury takes a view.
"A more extended discussion of this subject or a critical examination of
the cases outside this jurisdiction which seem to be germane is unnecessary,
because the unquestioned practice in this state shown by the cases is deter-
minative of tne question. A view is one means of obtaining a certain class of
• •vidence. Information thus acquired by the jury, which is material to the
issue and necessarily involved in the subject-matter of the view, lias been rec-
ognlzed as evidence in the following eases, among others, without a sugges-
tion that its use as such was open to doubt: Cook v. New Durham, G4 N. H.
419 li'ii 13 Atl. <;:.(> [1887]; Concord Land & Water Power Co. v. Clough, 70
X II i;Jt, 17 Ail. 704 [1900] ; Flint v. Company, 73 N. II. 483, 485, 62 Atl. 78S
[1906]; Lane v. Manchester Mills, 75 N. 11. 102, 100, 71 Atl. 029 [190S] ; City
Bowling Alleys v. Berlin, 78 N. H. 169, 170, 97 Atl. 976 [1906]; Osman v.
Company, 78 N. II. 597, 99 Atl. 287 [1916]."
Whether a view by the jury is such a part of the trial as to require the
presence of the defendant in a criminal ease, see People v. Thorn, 150 N. Y.
286, 50 X. E. D17, 42 L. B. A. .'568 (1898), annotated.
*' J Part of opinion omitted.
Sec. 4) PHYSICAL OBJECTS 927
ment is necessarily indefinite, and much is necessarily left to the sound
sense and discretion of the jury. This is constantly repeated in ad-
judicated cases in this State and elsewhere. It is not necessary to fix
an exact age in order that the jury may estimate the future. In cases
of this character, it is of no practical importance to know the pre-
cise age. It is not a case of that kind. It would make no appreciable
or substantial difference in the jury's estimate of probable future dam-
ages, whether the injured party was ten, or twelve years of age ; or,
whether he was forty or forty-one, two, three or four years old. Mor-
tality tables are not necessary as evidence. If this is not true, then
the age to the month and day should be proven. And if the age is not
known, even by the plaintiff himself, as is sometimes the case, the jury
would not be at liberty to make any estimate, in that respect of future
damages. Their observation of the person himself during the trial
would be of no importance. It seems to me, therefore that the observa-
tion of plaintiff by the jury was sufficient as a basis from which to
estimate the damages.
"Inspection is to be regarded rather as a means of dispensing with
evidence than as evidence itself. That which the court or jury sees,
need not be proved. The appearance of a defendant, for instance, so
as to make up a basis of comparison in cases of identity, need not be
proved by testimony, when the defendant appears in person at the
trial. By the Romans, this method of proof is frequently noticed.
* * * Nor is it only the immediate object presented to the eye that
is thus proved. Inferences naturally springing from such appearances
are to be accepted ; age, bodily strength, being thus inferred. * * * "
1 Wharton on Evi., § 345.
Greenleaf (volume 1, § 13a) says, that the court has at its disposal
for the ascertainment of fact "self-perception or self-observation, au-
toptic proference; i. e., the presentation of the object itself for the
personal observation of the tribunal." And in sections 13b to 13d he
approves of establishing age by observation. So it has been decided,
and that, too, in criminal cases, that observation of the jury could be
relied upon to establish the age of an accused. Com. v. Emmons, 98
Mass. 6 (approved in Keith v. Railroad, 140 Mass. 175, 3 N. E. 28);
State v. Arnold, 35 N. C. 184; State v. McNair, 93 N. C. 628. Wo
regard this view as having met the approval of our Supreme Court in
the case of State v. Thompson, 155 Mo. 300, 55 S. W. 1013. In that
case it was necessary to establish that the defendant was over sixteen
years of age. He was a witness and Judge Gantt said: "Not only
could they (the jury) use their eyes in determining that fact, but the
defendant testified that he was a graduate," etc. And so, on kindred
subjects, the same rule had frequently been laid down. Thus, obser-
vation of resemblance between father and child, when the latter is
old enough to have distinctive features, will establish the paternity
of the party alleged to be the father. State v. Smith, 54 Iowa. 104, 6
X. W. 153,' 37 Am. Rep. 192; State v. Horton, 100 N. C. 443, 6 S. E.
928 CIRCUMSTANTIAL EVIDENCE (Ch. 5
238, 6 Am. St. Rep. 613; Clark v. Bradstreet, 80 Me. 454, 15 Atl. 56,
6 Am. St. Rep. 221; Gilmanton v. Ham, 38 N. H. 108; State v.
Woodruff, 67 N. C. 89; Gaut v. State, 50 N. J. Law, 490, 14 Atl.
600. And observation will suffice to show race or color of person.
Garvin v. State, 52 Miss. 207; Warlick v. White, 76 N. C. 175.
Indeed, it is universally conceded that where the party in question
is absent, the opinion of the witness as to his age, formed from his
appearance, is competent evidence : Lawson on Expert and Opin.
Evi. 52S; Rogers on Expert Test. 10; Eisner v. Sup. Lodge K. of H.,
98 Mo. 645, 11 S. W. 991 ; State v. Douglass, 48 Mo. App. 39; Com-
monwealth v. O'Brien, 134 Mass. 198; State v. Bernstein, 99 Iowa,
5, 68 X. W. 442; Jones v. State, 32 Tex. Cr. R. 108, 22 S. W. 149;
Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803 ; Garner v. State, 28
Tex. App. 561, 13 S. W. 1004; Benson v. McFadden, 50 Ind. 431;
State v. Grubb, 55 Kan. 678, 41 Pac. 951. Now it is manifest that if
an ordinary nonexpert witness may form an opinion of an absent
person's age from his appearance, and may give that opinion in evi-
dence, the jury also can form an opinion from the appearance of the
party who is present before them during the trial, especially when he
is both a party and a witness. Why should a witness testify to that
which the jurymen see for themselves? If a black man is before a
jury as a party and witness, must others be called upon to tell the jury
that he is black? Where a jury has as much opportunity for knowl-
edge of a non-expert subject as anyone else, it is idle to call others to
tell them what they already see and know. If the witness agrees with
the jury's observation, his testimony is useless and if he testifies in the
face of what they see for themselves, they will refuse to credit him.
The very question now before us was decided in Commonwealth v.
Emmons, 98 Mass. 6, supra. That case was a prosecution charging
the defendant with permitting two minors to play billiards at his place.
One of them was a witness, but there was no proof of his age, and the
trial court "ruled that the jury might determine by personal inspection
of him whether or not he was a minor." On appeal, the Supreme Court
of Massachusetts said :
"There is nothing in the bill of exceptions from which it can be in-
ferred that the defendant was aggrieved by the ruling of the court in
permitting the jury to judge whether one of the alleged minors was
under age, from his appearance on the stand. There are cases where
such an inspection would be satisfactory evidence of the fact. It cer-
tainly was not incompetent for the jury to take his appearance into
consideration in passing on the question of his age; and, as it does
nol appear that this may not have afforded plenary evidence of the
fact, the defendant fails to show that he was convicted on insufficient
evidence, or that he has been prejudiced by the ruling of the
court." * * *
It follows from the foregoing that defendant's objection to the want
of evidence as to age is not well founded.
Sec. 4) PHYSICAL OBJECTS 929
During the trial, plaintiff was permitted, over defendant's objection,
to exhibit the empty eye-socket to the jury with the scar above and
below. It is said in support of defendant's objection that it was ad-
mitted that defendant had cut and destroyed the eye and that the ex-
hibition to the jury could serve no other purpose than to excite their
pity and sympathy. Undoubtedly such was the tendency. But if
plaintiff was entitled to make the showing, such result can only be re-
garded as an unavoidable consequence. It is a result which follows,
in greater or less degree, the mere entrance of a maimed litigant into
the courtroom. It was a species of real evidence, or, to use Green-
leaf's language, of autoptic proference. There was no better way to
show the extent of the injury, thereby aiding in the estimate of dam-
ages. Haynes v. Trenton, 123 Mo. 335, 27 S. W. 622 ; Thompson on
Trial, § 858; Carrico v. Railroad, 39 W. Va. 86, 19 S. E. 571, 24 L.
R. A. 50. Such exhibition is generally and rightly treated as a proper
process of proof, subject to occasional exclusion in cases of abuse.
1 Greenleaf on Evi. § 13f ; 2 Taylor on Evi. 3656. * * *
Ellison, J. Since the foregoing opinion was written, but before
it was promulgated, we have been cited to the case of Phelps v. City of
Salisbury, 100 * * * just reported in 161 Mo. 1, 61 S. W. 582,
wherein it is held by the Supreme Court that an instruction as to a
plaintiff's age when there was no evidence thereof introduced was
error, notwithstanding he was present before the jury. Our conclu-
sion on that subject, as expressed in the foregoing opinion, must there-
fore be considered not authority. 101
WISTRAND v. PEOPLE.
(Supreme Court of Illinois, 1904. 213 111. 72, 72 N. E. 748.)
This is a writ of error, sued out of this court by Charles Wistrand.
the plaintiff in error, to review a judgment of the criminal court of
Cook county whereby plaintiff in error was adjudged guilty of the
crime of rape and sentenced to the penitentiary for a term of two
years.
The indictment consisted of three counts. The first and third
charged rape by force upon one Eva Goldstein. There was no evidence
of the use of force to sustain these counts. The second count charged
the commission of the crime without force, alleging that the defend-
ant was a male person above the age of 16 years, that the female was
under the age of 14 years, and that the act was committed with the
consent of the female. * * *
ioo in this case the Supreme Court apparently held that inspection alone
did not furnish a sufficient basis to determine age for this purpose.
ioi In State v. Gebhardt, 219 Mo. 70S, 119 S. W. 350 (1909), it was held that
the jury might properly find that defendant was over sixteen from inspection
and the fact that he was an attorney.
Hint.Ev.— 59
930 CIRCUMSTANTIAL EVIDENCE (Ch. 5
Scott, J. 102 * * * In this case the fact that the female had not
reached the age of 14 was shown by the evidence of her father. The
fact that the sexual intercourse took place was shown by the evidence
of the female herself, and by the written confession of the male, made
shortly after his arrest. This confession contained also a statement
that he was 44 years old, and his age was not otherwise proven. It
is elementary that the corpus delicti cannot be proven by the confession
of the defendant alone. May v. People, 92 111. 343 ; Williams v. Peo-
ple, 101 111. 382; Gore v. People, 162 111. 259, 44 N. E. 500. Unless
the defendant was above the age of 16 at the time of the alleged com-
mission of the offense, there was no violation of the statute. It was
as essential to prove his age as it was to establish the age of the fe-
male, or to show that fornication occurred. Either of the three
elements lacking, the corpus delicti is not established. Consequently,
there should be evidence tending to establish each of these three nec-
essary facts, aside from the confession of the defendant. So far as
proving his age was concerned, there was no evidence except his con-
fession. It follows, therefore, that without his confession there was
no proof that a crime had been committed, because, except he was more
than 16 years of age, no crime was committed. For the purpose of
fixing the age of the defendant, persons who had seen him would have
been competent to testify relative to his appearance, and such testimony
would have been proper for the consideration of the jury on the ques-
tion of age.
Defendant in error suggests that the defendant was present in court
on the trial, and that this, together with the confession, was sufficient
to justify the jury in finding him to be more than 16 years of age. The
defendant did not take the witness stand except on a preliminary ques-
tion in reference to the admission of his confession in evidence, and
the jury was excluded from the courtroom while he was testifying on
that subject. But whether he did or did not testify, the law does not
allow the jury to fix his age by inspecting his person. Stephenson v.
State, 28 Ind. 272. While the appearance of the defendant might be
conclusive evidence to the jury, there would be some difficulty in hav-
ing evidence of that character preserved in the bill of exceptions for the
inspection of a court of review. "To allow a jury to make up their
verdict upon a disputed fact from their own individual observation
would be most dangerous and unjust" Seaverns v. Lischinski, 181
111. 358, 54 N. E. 1043.
There is no merit in the other errors assigned. The judgment will
be reversed, and the cause will be remanded to the criminal court of
I !ook county.
Judgment reversed. 103
102 Statement condensed and part of opinion omitted.
Quins \. People, "-1 Colo. 350, HT Pac. :i!»<;, io L. R. A. (N. S.) 470
(1011), suggesting that whether a person was under age might be determined
Sec. 4) PHYSICAL OBJECTS 931
HANAWALT v. STATE.
(Supreme Court of Wisconsin, 1885. 04 Wis. 84, 24 N. W. 489, 54 Am.
Rep. 588.)
Taylor, J. This was an action to charge the plaintiff in error with
the support and maintenance of a bastard child. On the trial in the
circuit court the state was permitted, against the objection of the plain-
tiff in error, to bring into court, and exhibit to the jurors for their in-
spection, as evidence in the case, the child of which he was charged
with being the father; such child then being less than one year old.
This is assigned as error in this court. The plaintiff also assigns as
error that the counsel for the state was permitted to comment to the
jury and draw their attention to the alleged similarity of the ears of the
child to the ears of the plaintiff in error, as well as to the ears of the
plaintiff's father, who was also in court, and in the presence of the
jury, the child, at the time, being absent. Upon the question of the
propriety of exhibiting the child to the jury as evidence in cases in-
volving its paternity, the decisions of the courts are not in harmony.
In North Carolina the supreme court of that state hold that such ex-
hibitions may properly be made. See State v. Woodruff, 67 N. C. 89 ;
State v. Bri'tt, 78 N.'c. 439; Warlick v. White, 76 N. C. 175; and
State v. Bowles, 52 N. C. 579. The same was held by the supreme
court of Iowa in State v. Smith, 54 Iowa, 104, 6 N. W. 153, 37 Am.
Rep. 192. In this last case the child was over two years old; but, in
the case of State v. Danforth, 48 Iowa, 43, 30 Am. Rep. 387, the same
court held it was improper to exhibit to the jury a child only three
months old. In Eddy v. Gray, 4 Allen (Mass.) 435, Jones v. Jones,
45 Md. 144, and Keniston v. Rowe, 16 Me. 38, the court hold that testi-
mony of witnesses that the child looks like or resembles in appearance
the person charged to be the father is not admissible, and in Reitz v.
State, 33 Ind. 187, and Risk v. State, 19 Ind. 152, it was held error
to allow the prosecution to give the child in evidence, so that the
jury might compare it with the defendant who was present in court.
In the Douglas Case, Lord Mansfield is reported as saying: "I
have always considered likeness as an argument of a child's being the
son of a parent ; and the rather as the distinction between individuals in
the human species is more discernible than in other animals. A man
may survey ten thousand people before he sees two faces perfectly
alike, and in an army of a hundred thousand men every one may be
known from another. If there should be a likeness of feature, there
may be a discriminancy of voice, a difference in the gestures, the
in some cases by mere inspection, but not unless attention was called to the
matter, and hence where nothing appeared beyond the fact that the alleged
minor was before the jury a general verdict could not be supported.
It would seem that appellate courts might assume that the trial judge
could use his eyes and determine whether there was any real question, which
required something more than inspection.
932 CIRCUMSTANTIAL EVIDENCE (Ch. 5
smile, and various other things, whereas a family likeness runs general-
ly through all these, for in everything there is a resemblance; as of fea-
tures, size, attitude, and action." This language attributed to Lord
Mansfield is taken from Wills on Circumstantial Evidence, p. 123.
This author, on the next page, says that in a Scotch case, when the
question was who was the father of a certain woman, an allegation that
she had a strong resemblance in the features of the face to one of the
tenants of the alleged father was held not to be relevant as being too
much a matter of fancy and of opinion to form a material article of evi-
dence. In the case of Jones v. Jones, supra, the learned judge who
wrote the opinion refers to the language used by Lord Mansfield in the
Douglas Case, and disapproves of it as authority, and thinks it has not
been followed as a precedent in the English courts ; and he quotes with
approval the language of Justice Heath in the case of Day v. Day, de-
cided in 1797, in which the learned judge stated to the jury "that resem-
blance is frequently exceedingly fanciful, and he therefore cautioned
the jury as to the manner of considering such evidence." The learned
judge in the case of Jones v. Jones, supra, in disapproving of the lan-
guage used by Lord Mansfield, says : "We all know that nothing is
more notional in the great majority of cases. What is taken as a re-
semblance by one is not perceived by another with equal knowledge of
the parties between whom the resemblance is supposed to exist."
It should be remembered that in the Douglas Case, and the Maryland
case, the question of parentage was as to' a person who was full grown.
So that if there is anything certain in family likeness it would be fully
developed, and if in any case such claimed likeness could be consid-
ered by a jury in determining the question of parentage, it would be in
a case of that kind. In the case of Jones v. Jones, the court seemed to
be of the opinion that, "when the parties are before the jury, and they
can make the comparison for themselves, whatever resemblance is dis-
covered may be a circumstance, in connection with others, to be consid-
ered." In any case this kind of evidence is inherently unsatisfactory,
as it is a matter of general knowledge that different persons, with equal
opportunities of observation, will arrive at different conclusions, even
in the case of mature persons, where a family likeness will be fully
developed if there be' any. And when applied to the immature child its
worthlessness as evidence to establish the fact of parentage is greatly
enhanced, and is of too vague, uncertain, and fanciful a nature to be
submitted to the consideration of a jury.
The learned author of "Beck's Medical Jurisprudence" says : "It
has been suggested that the resemblance of a child to the supposed fa-
ther might aid in deciding doubtful cases. This, however, is a very
uncertain source of reliance. We daily observe the most striking dif-
ferences in physical traits between parent and child, while individuals
born in different parts of the globe have been mistaken for each other.
And even as to malformations, although some remarkable resemblances
in this respect have been noticed between father and child, yet we
Sec. 4) PHYSICAL OBJECTS 933
should act unwisely in relying too much on them. There is, however, a
circumstance connected with this which, when present, should certainly
defeat the presumption that the husband or paramour is the father of
the child, and that is when the appearance of the child evidently proves
that its father must have been of a different race from the husband
or paramour, as when" a mulatto is born of a white woman whose hus-
band is also white, or of a black woman whose husband is a negro."
In a case where the question of race is concerned, the child may be ex-
hibited for the purpose of showing that it is or is not of the race of
its alleged father. Warlick v. White, 76 N. C. 175. In a case like the
one at bar, we think no exhibition should be made.
Justice Lyon, in the case of Washburn v. Railroad Co., 59 Wis. 364-
370, 18 N. W. 328, says : "To allow jurors to make up their verdict on
their individual knowledge of disputed facts material to the case, not
testified to by them in court, or upon their private opinions, would be
most dangerous and unjust. It would deprive the losing party of the
right of cross-examination and the benefits of all the tests of credibility
which the law affords. Besides, the evidence of such knowledge or
the grounds of such opinions cannot be preserved in a bill of excep-
tions or questioned on appeal. It would make each juror the absolute
judge of the accuracy and value of his own knowledge or opinions, and
compel the appellate court to affirm judgments on the facts when all
the evidence is before it, and there is none whatever to support the
judgment." This reasoning clearly shows the impropriety of permit-
ting the jury to base their judgment, in whole or in part, upon their
inspection of the child exhibited to them in court. If the child itself,
when presented to the jury for inspection, is or may be evidence tend-
ing to prove its parentage, then this court upon appeal could not reverse
their verdict, although the written bill of exceptions entirely fail to
support such verdict, for the reason that this court would not have be-
fore it all the evidence in the case upon which the jury acted.
The learned attorney general says the bill of exceptions does not
show that the child was exhibited to the jury as evidence in the case.
In this he appears to be mistaken, as, in the part of the bill of excep-
tions which follows the reporter's notes of the evidence, it is clearly
stated that "in course of the trial the plaintiff produced in court the
child claimed to have been begotten by the defendant, and proposed to
exhibit the same to the jury as evidence that it was the defendant's
child. The defendant objected, and the court ruled that the child
might be exhibited in evidence, but that no comments should be made."
This statement, it will be seen, is made a part of the bill of exceptions.
The comments made by the counsel for the state to the jury in his
argument, calling the attention of the jury to a peculiarity of the ears
of the defendant and of his father, and his assertion that the child had
the same peculiarity as to the ears, in the absence of the child, and
without its appearing that the attention of the jury had been before
called to such alleged peculiarity of the ears of the child, the defendant,
934: CIRCUMSTANTIAL EVIDENCE (Ch. 5
or his father, was highly improper and was likely to prejudice the
rights of the defendant. This impropriety on the part of the prosecut-
ing attorney might, in itself, be sufficient ground for a reversal of the
judgment, in the absence of any direction on the part of the presiding
judge to the jury to disregard entirely the statements so made by the
counsel, and a clear statement to the jury by such judge of the im-
propriety of such comments on the part of the counsel in his argument.
For the errors in permitting the child to be exhibited to the jury as
evidence in the case, tending to prove its paternity, and on account
of the impropriety of the counsel for the prosecution in calling the
attention of the jury to the alleged peculiarity of the child, the defend-
ant's, and his father's ears, as above set forth, the judgment of the
circuit court must be reversed.
The judgment of the circuit court is reversed, and the cause is re-
manded for a new trial.
STATE ex rel. RISON v. BROWNING.
(Supreme Court of Kansas, 1915. 96 Kan. 540, 152 Pac. 672.)
Burch, J. The proceeding was one for bastardy. The defend-
ant was found guilty, and the principal errors assigned are that the
child was exhibited to the jury as evidence in the case, and that the
county attorney in his closing argument discussed the subject of its
resemblance to the defendant.
The child was born on December 24, 1913, and the trial occurred on
May 11, 1914. There are instances in which physical characteristics
of a father are stamped upon his child so definitely that they distinctly
appear at birth, or even before birth. In some instances resemblances
may not appear until late in the course of the child's independent de-
velopment, and in still other instances resemblances may never ap-
pear with recognizable certainty. Sometimes a child may strongly
resemble one not its father, and not related to it. The result is that
the evidence of paternity furnished by the features of the child may
be strong or weak, or inconclusive, or worthless.
No arbitrary age limit for the exhibition of a child in evidence can
be fixed, because maturity and permanence of feature may be of slow
or of rapid attainment, and because marked resemblances appearing
early may fade with the changes incident to growth. There is no other
test that can be applied, and it becomes the province of the trial court
to exercise its discretion in the matter. If in the judgment of the trial
court the exhibition of the child to the jury would appreciably tend
promote the purpose of the proceeding, the exhibition should be per-
mitted. If, however, the trial court should be satisfied that no substan-
tial advancement toward the truth would result from the exhibition, it
should be forbidden.
Sec. 4) PHYSICAL OBJECTS 936
An exercise of the trial court's discretion can seldom be reviewed
by this court, because it can seldom be shown either that power was
abused or that prejudice resulted. Like a scene viewed by the jury or
the demeanor of a witness while testifying, the matter cannot be pre-
sented to this court in such a way that it is authorized to substitute
its judgment for that of the district court. Should it be admitted that
the evidence was weak, or inconclusive, or worthless, the presump-
tion would be that the jury appreciated the fact, and gave it no more
weight than it was entitled to receive.
Substantially the foregoing conclusions respecting the authority of
the trial court and the attitude of this court toward an exercise of such
authority were reached in the case of Shorten v. Judd, 56 Kan. 43, 48,
42 Pac. 337, 338, 54 Am. St. Rep. 587, in which it was said :
"While in most cases evidence of family resemblance by view and
comparison of the jury is of little value in proof of parentage, yet
it has often been held admissible where the child has attained an age
when its features have assumed some degree of maturity and perma-
nency. Where the child is a young infant, it has been held best not
to exhibit it to the jury. Much must be left to the discretion of the
trial court, however, as to the proper age, and we would not feel war-
ranted in a reversal of the judgment in this case on account of the
child's appearance before the jury."
Whenever the child is exhibited to the jury as proof of paternity,
counsel are at liberty to discuss the subject.
The judgment of the district court is affirmed. All the Justices con-
curring. 10 *
WAGNER v. CHICAGO, R. I. & P. RY. CO.
(Supreme Court of Illinois, 1917. 277 111. 114, 115 N. E. 201.)
Cartwrigiit, J. 105 * * * The action was for damages in the
loss of a part of the plaintiff's foot while coupling cars as foreman of
a switching crew in the service of the defendant. * * *
The court permitted the plaintiff to exhibit his foot to the jury, and
also to exhibit the shoe which he wore at the time of the accident
and to offer the shoe in evidence. Whether one who is injured may
exhibit an injured member to the jury is primarily in the discretion of
the trial court, and it is properly exercised in any case where the per-
sonal view will aid the jury in understanding the evidence, and that
may be so where there is no controversy concerning the injury nor
the extent of it, as was the fact in this case. Chicago & Alton Rail-
104 Contra: In case -of a child three months old, Flores v. State (Fla.) 73
South. 234, L. R. A. 1917B, 1143 (1916), annotated.
See People v. Kingcannon. U7(l 111. 251, 114 X. E. 508 (1916), admitting proof
that a child and its alleged father had similar malformations of the hand.
io6 Part of opinion omitted.
93G CIRCUMSTANTIAL EVIDENCE (Ch. 5
road Co. v. Clausen, 173 111. 100, 50 N. E. 680. Where, however, the
only purpose and effect of an exhibition of that kind is to excite
feeling rather than to enlighten the jury as to any fact or to aid in
settling any disputed question of fact, it should not be permitted.
In this case there was not only no controversy concerning the injury
nor the extent of it, as was stated at the time of the proposed exhibi-
tion, but the evident purpose was to excite in the minds of the jury
pity and commiseration for the condition of the plaintiff and thereby
to increase the damages. The exhibition for the purpose which the
record shows was intended should not have been allowed, and if it now
appeared that the damages allowed were excessive it would be neces-
sary to reverse the judgment. In view, however, of the amount of the
recovery, it would seem that substantial injury did not result from
what was done. * * *
Judgment affirmed. 106
loe See Evans v. Chicago, M. & St. P. R. Co., 133 Minn. 293, 158 N. W. 335
(1916). where a new trial was granted because the court permitted plaintiff's
amputated hand to be shown to the jury. And so in Melton v. State, 47 Tex.
Cr. R. 451, 83 S. W. S22 (1904), where the widow was permitted to make a
dramatic display of blood-stained clothing worn by the deceased.
Sec. 1) THE BEST EVIDENCD 937
CHAPTER VI
THE BEST EVIDENCE
SECTION 1.— CONTENTS OF A DOCUMENT
DOCTOR LEYFIELD'S CASE.
(Court of the Exchequer, 1611. 10 Coke, 88a.)
John Leyfield, Doctor of Divinity, brought an action of trespass in
the King's Bench, Hil. 8 Jac. Regis, Rot. 1282, against Henry Hillary,
for corn and hay taken and carried away at Old Cleve in the county
of Somerset. The defendant pleaded in bar, that Queen Elizabeth
was seised of the Rectory of Old Cleve in the same county in her
demesne as of fee, as in right of the Crown of England; and by her
letters patent 20 Junii 35 of her reign (without saying [1 Bulstr. 154.
Cr. Jac. 317. 2 Roll. Rep. 172, 191. 1 Rol. Rep. 221. 5 Co. 74a. Lane,
32] "here shewed forth") demised the said rectory to Conand Prowse
for his life, who 16 Jan. anno. 3 Jac. Regis demised the said rectory
to George Pincomb for eight years, if the said Conand tarn diu viver-
et; and that the defendant as servant to the said George, took the
corn and hay as tithes severed from the nine parts, and averred the
life of the said Conand: upon which the plaintiff demurred in law,
and shewed the cause of his demurrer, because the defendant's plea
amounted to the (Winch. 20. Jenkins Cent. 133) general issue. And it
was adjudged in the King's Bench, that the bar was insufficient, be-
cause the defendant in his plea (Cr. Eliz. 146, 217. 1 Leon. 17S. 1
Bulstr. 155. Cr. Jac. 317. Lit. Rep. 306) did not shew the Court
the letters patent of Queen Elizabeth made to Conand Prowse, which
the Court took to be matter of (Co. Lit. 72a.) substance, and which the
defendant ought to have shewed forth, although he, in whose right
he justified, had but part of the estate. Whereupon a writ of error
was brought in the Exchequer-Chamber, and there two errors were
moved. 1 * * *
As to the other error which was assigned, the said two points were
argued. 1. If the letters patent ought to be shewed by the defendant,
who justifies as servant to him who has but parcel of the estate of
him to whom the letters patent were granted. 2. Admitting that he
ought to shew them, if the omission of this clause (Cur' hie porlaO
be matter of substance or matter of form; for if it be but matter of
i Part of report of case omitted.
938 THE BEST EVIDENCE (Ch. 6
form, then forasmuch as the plaintiff has not shewed it particularly
and expressly for this cause of demurrer, he shall not take advantage
of it by the said statute of 27 El. cap. 5. And as to the first, Austin's
Case, in 1 & 2 P. & M. E\y. 115, was cited, where in an information of
intrusion in the manor of East Farleigh in Kent, the defendant pleaded
the letters patent of King Henry 8. to Sir Thomas Wyat in tail, and that
Sir Thomas leased to him for thirty-six years, without shewing forth
to the Court the letters patent ; and the Lord Dyer in reporting the
case, saith, nota hoc ; and this stands, as it was said, upon great reason,
for the lessee having but parcel of the estate, the letters patent do not
belong to him, but to his lessor, and therewith agrees 29 Ass. p. 2,
J. Eatbread's Case, and the reason there given, is, because the patent
doth not remain with him who has but parcel of the estate. And in
28 H. 8, Dy. 29 b, in trespass the defendant said, that the place where,
was ten acres of land, whereof the King was seised in fee in the right
of his Crown ; and by his letters patent granted the land to the Lady
Carew for term of life, who leased to the defendant for years, and
averred the life of the first lessee, and so justified, and it was moved
if the plea was good without shewing the first letters patent; and it
was held by Brown, Willowby, and Baldwin, that he shall not be com-
pelled to shew them, because the letters patent do not belong to him,
no more than a sub-collector, under-sheriff or incumbent, because they
have not any means to make their grantors or masters shew them:
and by them there is a difference, when the patentee grants over his
whole interest, there the patent belongs to him, and therefore he shall
shew it- forth, but when he grants by parcel, it is otherwise : and with
the case of the incumbent agree 31 E. 3. Monstrans des Faits 177 &
31 H. 6, 14, and the case of the sub-collector and under-sheriff, 22 H.
7, 42 a.'& 3. 1 H. 6, 14 b. 12 E. 3. Monstrans de Faits 65. A sub-
taxer shall justify the taking of goods without shewing the commis-
sion ; but if a man will justify the imprisonment of the body of a
man by warrant, he ought to shew the warrant.
But it was resolved, that the lessee for years in the case at Bar
ought to shew the letters patent made to the lessee for life: for it
is a maxim in the law, that if he who is party or privy in estate, or
interest, or he who justifies in the right of him who is party or privy
pleads a deed, although he who is privy claims but parcel of the original
estate, yet he ought to shew the original deed to the Court.
And the reason that deeds being so pleaded shall be shewed to the
Court, is, that to every deed two things are requisite and necessary;
the one, that it be sufficient in law, and that is called the legal part,
because the judgment of that belongs to the Judges of the law; the
Other concerns matter of fact, sc. if it be sealed and delivered as a
deed, and the trial thereof belongs to the country. And therefore
every deed ought to approve itself, and to be proved by others; ap-
prove itself upon its shewing forth to the Court in two manners. 1.
As to the composition of the words to be sufficient in law, and the
Sec. 1) CONTENTS OF A DOCUMENT 930
Court shall judge that. 2. That it be not razed or interlined in ma-
terial points or places, and upon that also in ancient time the Judges
did judge upon their view, the deed to be void, as appears in 7 E. 3,
57. 25 E. 3, 41. 41 E. 3, 10. &c. but of late times the Judges have
left that to be tried by the jury, s. if the razing or interlining was
before the delivery. 3. That it may appear to the Court and to the
party, if it was upon condition, limitation, or with power of revocation,
&c. to the intent that if there be a condition, limitation, or power of
a revocation in the deed, if the deed be poll, or if there wants a
counterpart of the indenture, the other party may take advantage of the
condition, limitation, or power of revocation, and therewith Litt. c.
Conditions, f. 90 & 91, 40 Ass. 34, agree. And these are the reasons of
the law, that deeds pleaded in Court, shall be shewed forth to the
Court. And therefore it appears, that it is dangerous to suffer any
who by the law in pleading ought to shew the deed itself to the Court,
upon the general issue to prove in evidence to the jury by witnesses
that there was such a deed, which they have heard and read; or to
prove it by a copy, for the viciousness, rasures, or interlineations, or
other imperfections in these cases, will not appear to the Court; or
peradventure the deed may be upon condition, limitation, with power
of revocation, and by this way truth and justice, and the true reason
of the common law would be subverted. But yet in great and notori-
ous extremities, as by casualty of fire, that all his evidences were
burnt in his house, there if that should appear to the Judges, they may,
in favour of him who has so great a loss by fire, suffer him upon the
general issue to prove the deed in evidence to the jury by witnesses,
that affliction be not added to affliction ; and if the jury find it, al-
though it be not shewed forth in evidence, it shall be good enough,
as appears in 28 Ass. p. 3, but in 12 Ass. p. 16, the Judges would not
suffer a deed to be given in evidence which was not shewed forth to
the jury. Vide 26 Ass. p. 2, the like. But the copy of a record may
be shewed and given in evidence to the jury for records are of so high
a nature, and such credit in law, that they cannot be proved by other
means than by themselves and no rasure or interlineations shall be
intended in them. And therefore a copy of a record being testified to
be true, is permitted to be given in evidence ; but the sure way is, to
exemplify it under the Great Seal, or at least under the seal of the
Court. And in the said case of casualty by fire there ought to be great
care and discretion in the Judges, for notwithstanding any such casu-
alty by fire, he in pleading ought to shew forth the deed to the Court,
otherwise his plea will be insufficient and judgment shall be given
against him; for the law will rather suffer a mischief in a private case,
than an inconvenience, which by the breaking of the rule of law,
should be brought upon the public. Also the deed ought not only, as
hath been said, to approve itself, but it ought to he proved by others,
sc. by witnesses, that it was sealed and delivered; for otherwise al-
though the fabric and composition of the deed he legal, yet without
OiO THE BEST EVIDENCE (Cll. 6
the other it is of no effect; and all of this which has been said of
deeds, as to the legal part, may be also affirmed of the King's letters
patent. * * *
Judgment affirmed. 2
SIR EDWARD SEYMOUR'S CASE.
(Court of Queen's Bench, 1711. 10 Mod. S.)
In a trial of ejectment between Sir Edward Seymour and his mother-
in-law, the Court allowed the contents of a deed to be given in evidence,
by witnesses ; nay witnesses who put the contents of the deed in writ-
ing upon memory, four or five days after reading the deed.
The Court seemed of opinion, that in case a deed was lost by some
inevitable accident, that there it might be proved by a copy. But in
case there was no copy, the contents of it could not be proved from
the memory of those that knew the deed; and though it were hard for
a man that had no copy, to lose the benefit of his deed, yet the incon-
veniences of admitting that sort of evidence would be greater.
But here the opinion of the Court was founded upon a particular
reason, for the deed by which the plaintiff was to prove his title was
not lost, but proved to be in the hands of the defendant; so that in
this case the danger of allowing this sort of evidence was none at all ;
for if the defendant was wronged by the parol evidence, it was in his
power to set all right by producing the deed.
JONES v. RANDALL.
(Court of King's Bench, 1774. 1 Cowp. 17.)
This was an action upon a wager, whether a decree of the court of
Chancery would or would not be reversed in the house of lords?
Verdict for the plaintiff, damages fifty guineas.
Upon a rule to shew cause, why there should not be a new triaf in
tli is case, three objections were made to the sufficiency of the evidence
given at the trial. 1st. That a copy of the reversal only, and not the
minute book itself, was produced. 2dly. If such copy was admissible,
2 Alter the rule became settled that the accidental destruction of a deed
was a sufficient excuse for its nonproduction in evidence, it was inevitable
that the same situation should be recognized as an excuse for failure to make
profert in pleading. Read v. Brockman, '.', Term it. 151 (1789).
By Hi'- middle of the eighteenth century, the rule requiring the production
of the original Instrument was understood to cover unsealed writings as well
as sealed, and without regard i<> whether they formed the basis of the action
or defense, or were merely used for some subsidiary purpose. Cole v. Gib-
son, i Ves. no:: (1760).
The same ride came to be applied to criminal cases. Atty. Gen. v. Le Mer-
chant, 2 Term H. 201 (1772;.
Sec. 1) CONTENTS OP A DOCUMENT 941
yet it ought to have been upon stamps. 3dly. That the previous pro-
ceedings ought to have been shewn, whereas the decree only was pro-
duced.
Lord Mansfield. 8 The minutes of the judgment are the solemn
judgment itself: not a word is added upon the journals: and a copy
of them may certainly be read in evidence ; for the inconvenience would
be endless, if the journals of the house of lords were to be carried all
over the kingdom. As to such copy being upon stamps, it was decided
in Queen Anne's time by the opinion of all the judges of England,
that copies of the proceedings of parliament need not be stamped.
Formerly a doubt was entertained, whether the minutes of the House
of Commons were admissible, because it is not a court of record ; but
the journals of the House of Lords have always been admitted, even in
criminal cases.
Rule discharged. 4
JORY v. ORCHARD.
(Court of Common Pleas, 1799. 2 Bos. & P. 39.)
Trespass for taking and driving away the Plaintiff's cattle.
The cause was tried before Grose, J., at the last Summer assizes for
Cornwall, when it appeared, that the Defendant took the cattle as a
distress for non-payment of a poor-rate, by virtue of a warrant from
a magistrate, which was produced and read. The counsel for the De-
fendant then called on the Plaintiff to prove a demand of a copy of the
warrant pursuant to 24 Geo. 2, c. 44, s. 6, 5 upon which a paper was pro-
duced by a witness, who swore that it was a copy of the demand of the
warrant. It was objected, however, that such copy would not be read
in evidence without proof of notice given to the Defendant to produce
the original ; in answer to which it was shewn, that the Plaintiff's attor-
3 Opinion of Ashton, J., omitted.
•* And so in case of the books of the Bank of England. Mortimer v. McCal- I
Ian, 6 M. & W. 58 (1840), where the court announced the rule as applying gen-"
erally to all public and official records. In such cases it seems that a copy
may be used, though in the particular instance the original might be pro-
duced without inconvenience. Marsh v. Collnett, 2 Esp. 665 (1798).
In Owner v. Bee Hive Spinning Co., [1914] 1 K. B. 105, the court invoked
the principle of inconvenience to excuse the production of a printed notice re-
quired to be kept posted in a factory, because the removal might subject tin;
party to a penalty, though it was urged in support of the objection that an-
other notice could be substituted at the factory.
5 That section enacts, "that no action shall be brought against any consta-
ble, headborough, or other officer, or against any person or persons acting by
his order and in his aid, for any thing done in obedience to any warrant un-
der the hand or seal of any Justice of the Peace, until demand bath been
made or left at the usual place of his abode by the party or parties Intending
to bring such action, or by his, her, or their attorney or agent in writing,
signed by the party demanding the same, of the perusal and copy of such
warrant, and the same hath been refused or neglected for the space of six
days alter such demand."
942 THE BEST EVIDENCE (Ch. 6
ney intending to deliver a demand under the above act, made out two
papers for that purpose precisely to the same effect, and signed them
both for his client; one of which he delivered to the Defendant, and
the other, which was the paper now produced, he kept in his own pos-
session. This the learned Judge refused to receive, because no notice
had been given to produce the demand delivered to the Defendant,
which he thought the best evidence ; accordingly he directed a nonsuit.
A rule nisi having been obtained upon a former day for setting aside
this nonsuit,
Bayley, Serjt. now shewed cause. First, The demand left with
the Defendant ought to have been produced. There is no reason why
the general rule, that a copy cannot be read without notice to produce
the original having been given, should not apply to this case. If a let-
ter be written, and the party writing it enter a copy in his letter-book
and sign it, would it not be necessary to give notice to produce the
original before the duplicate could be admitted in evidence?
Lord Eldox, C. J. With respect to the only question which arose
at nisi prius, namely, whether this paper is to be considered as a copy
of the original notice, or as a duplicate original, the strong inclination
of my opinion is, that it is a duplicate original, which, under the cir-
cumstances of the case, afforded evidence enough for the Plaintiff to
insist that the trial should proceed. I have looked into the act of par-
liament with a view to discover a new ground on which any distinction
may be founded between the notice required by the first section, to be
given to Justices of the Peace previous to the commencement of an
action against them, and the demand required by the sixth section ; but
without success. Unless I am mistaken, it is the usual course in ac-
tions against Justices of the Peace to produce a duplicate original ; and
the same thing is done with respect to notices to quit. It is true, that
a notice to a Justice of the Peace need not be signed either by the
Plaintiff or his attorney ; though on the back of it the name arid place
of abode of the attorney must be indorsed ; but it must have certain
specified contents ; and the production of a copy, or duplicate of that
notice, therefore, is not the very best evidence to prove that the notice
had the contents specified in the act. So a duplicate of a notice to quit
is not the very best evidence of the contents of the notice delivered :
for in that case, also, the contents may be proved to a' certainty by the
production of the notice itself, and the supposed duplicate original
may be inaccurate. I do not see on what ground the distinction be-
tween those cases and this can be supported, the Plaintiff having
-hewn, that the paper produced was signed in the manner required by
• act. The practice of allowing duplicates of this kind to be given
in evidence, seems to be sanctioned by this principle, that the original
delivered being in the hands of the Defendant, it is in his power to
contradict the duplicate original, by producing the other, if they vary.
We cannot hold the paper produced in this case to be insufficient, with-
out overturning the practice in actions against magistrates, and in cases
Sec. 1) CONTENTS OF A DOCUMENT 943
of notices to quit, unless I mistake as to what that practice is; — con-
ceiving it to be as I have stated, I think this nonsuit cannot be sup-
ported.
Buller, J. I am confident that this question has often arisen, and
been decided, at nisi prius. But points of this kind pass unnoticed, un-
less afterwards moved in court. The attorney in this case made two
copies of the paper, one of which he meant to deliver; he signed both,
and it was indifferent which of them he delivered, for they were both
originals. It appears clearly from the report, that the nonsuit was
directed on the ground of the paper produced in evidence being a
copy ; but I think it clear, that both the papers were originals. With
respect to the second point, I agree with my Brother Bayley, that if
any thing appear upon the report, which would be the cause of a
nonsuit at the second trial, the Court will take it into consideration,
though not expressly reserved. But the statute in question not being a
penal act, the Court are not bound to construe it strictly. I think, there-
fore, the demand being signed by the Plaintiff's attorney for him, is
within the meaning of the statute, a demand signed by the Plaintiff.
Heath, J. I am of the same opinion. In principle I cannot dis-
tinguish this case from that of a duplicate notice to quit, which is re-
ceived in evidence.
RookE, J. I confess, that I cannot make up my mind to agree with
my Lord Chief Justice and my Brothers. The act requires this de-
mand to be signed. In the other cases which have been mentioned,
both the notice delivered, and the duplicate retained, may be consid-
ered as originals. But here something more is to be done beyond the
mere production of the paper; the signature is to be proved; and
how that is to be proved, by shewing that another paper was signed
by the party, I do not perceive. I think that the Plaintiff should have
given notice to produce the original demand before he could entitle
himself to give the counterpart in evidence.
Rule absolute.
BUTCHER et al. v. JARRATT.
(Court of Common Heas, 1S02. 3 Bos. & P. 143.)
Trover for "a certificate in writing of the register of a certain ship
or vessel called the Salem, which said ship or vessel had been reg-
istered by the Plaintiffs, according to the statute in that case made
and provided."
At the trial before Lord Alvanley, C. J., at the Guildhall Sittings
after last Hilary Term, it appeared, that the Defendant having been
employed as broker in the sale of the ship Salem by the Plaintiffs
had got the certificate of registry in question into his hands, and re-
fused to deliver it at their desire to the person who had purchased of
them, so as to enable them to obtain a fresh certificate of registry. To
944 THE BEST EVIDENCE (Ch. 6
prove that such a certificate had been granted, an officer of the cus-
toms was called, who produced the original registry from which the
certificate was copied. This evidence was objected to, on the p&it of
the Defendant, because no notice had been given to the Defendant to
produce the certificate of registry itself, without which it was insisted,
that the Plaintiffs could not resort to any secondary evidence of the
instrument which they sought to recover. Lord Alvanley admitted the
evidence, and a verdict was found for the Plaintiffs.
A rule nisi for a new trial was obtained on a former day, on the
ground of the evidence having been improperly admitted, and the case
of Cowan v. Abrahams, 1 Esp. N. P. Cas. 50, was then cited, where
Lord Kenyon in an action of trover for a bill of exchange, refused
to admit any evidence respecting the bill, notice not having been given
to the Defendant to produce the bill itself.
Lord Alvanley, C. J. Without controverting the rule laid down
by Lord Kenyon, I think this case very distinguishable from Cowan
v. Abrahams. None of the arguments used by his Lordship in that
case apply to the present. There the best evidence of the contents of
the bill of exchange was unquestionably to be derived from the produc-
tion of the bill itself. But the production of the certificate of registry
could in this case have answered no purpose whatever, the only ques-
tion being, Whether the Defendant wrongfully detained the certificate
from the Plaintiffs or not? It seems to me, therefore, no violation
of the rules of evidence to admit proof of the existence of the certifi-
cate, in order to charge the Defendant with a tortious conversion of
that instrument.
Heath, J. There is a material difference between an action of as-
sumpsit on a promise contained in an instrument in writing, and an
action of trover for the instrument itself. In the former, the promise
must be proved as laid, and consequently can be best proved by in-
spection of the instrument ; in the latter, the gist of the action is the
tort. Undoubtedly, if a party unnecessarily take upon himself to
describe the instrument, he must prove his description. But that is not
the case here. In fact, the original was produced ; and that which the
Defendant insists ought to have been produced, was only a copy.
Rooke, J. This action is brought to recover from the Defendant
the property in a specific thing: and therefore, I think the evidence
received at the trial was properly received. Where a written instru-
ment is to be used as a medium of proof, by which a claim to a demand
arising out of the instrument is to be supported, there, I admit, the in-
strument itself must be produced, or notice to produce it must have
been given to the Defendant, before any evidence of its contents can
be received. But this being an action of trover for the certificate of
istry itself, I can see no sound reason why evidence should not be
admitted of the existence of the certificate in the same manner as evi-
dence of a picture, or other specific thing, is constantly admitted, where
Sec. 1) CONTENTS OF A DOCUMENT 94."
it is sought to be recovered in the same form of action. It is true,
that if a party take upon himself to describe the contents of the instru-
ment, he must prove it as he describes it. In this case, it was not pos-
sible for the Defendant to entertain a doubt what was the thing de-
manded, there being but one certificate of registry to a ship existing at
any one period. The original registry, which is a kind of duplicate
of the certificate, was produced ; and the certificate itself being in the
possession of the Defendant, it was in his power to produce it, and
shew that the Plaintiff's evidence respecting the certificate was not
correct, if that had been the case.
Chambre, J. There is an essential difference, as I conceive, be-
tween the mode of proving a very general or a very minute description
of a written instrument. The rule undoubtedly is, that no evidence
can be received of the contents of a written instrument but the instru-
ment itself. But in this case the Plaintiffs declared in trover for a
written instrument, describing it generally, and not referring to its
contents, of which evidence could not have been received, as no notice
had been given to the Defendant to produce the instrument itself. I
think, therefore, the evidence was properly admitted.
Rule discharged. 6
DWYER v. COLLINS.
(Court of the Exchequer, 1852. 7 Exeh. 639.)
This was an action by the endorsee against the acceptor of a bill of
exchange : to which the defendant pleaded, inter alia, that the bill was
given for a gaming debt. On the trial, before the Lord Chief Baron,
at the Middlesex Sittings after last Term, the defendant proceeded to
prove his plea ; and for that purpose gave evidence of the gaming, and
swore that the only bill he ever gave to the drawer of the bill which
was declared on, was by way of payment of the debt then incurred.
The defendant's counsel, being required to prove that the identical bill
declared upon was that which was given on that occasion, called for the
bill, which the plaintiff's counsel declined to produce. The defendant's
counsel then called as a witness the plaintiff's attorney, who was present
in Court, and asked him whether he had the bill with him. The plain-
tiff's counsel objected that such a question need not be answered, as it
would be a breach of professional confidence to do so. The Lord Chief
Baron, after consulting some of the other Judges of this Court — at that
time sitting in the Exchequer Chamber — decided that the question
must be answered. The attorney having admitted that the bill was in
c In How v. Hall, 14 East, 275 (1811), the same result was reached on the
theory that the pleading in such actions served the purpose of a notice to
produce; and so in Com. v. Messinger, 1 Bin. (Pa.) 273, 2 Am. Dec. 441 (1S0S), a
criminal prosecution for the larceny of a written instrument.
Hint.Ev— 60
946 THE BEST EVIDENCE (Ch. 6
his possession and in Court, the defendant's counsel called for its pro-
duction; which being refused, he then offered to give secondary evi-
dence of its contents. The plaintiff's counsel objected, that there ought
to have been a previous notice to produce; and the Lord Chief
Baron, after consulting the same Judges, ruled in favour of the de-
fendant. The evidence was then given, and a verdict passed for the
defendant, the Judge reserving leave to the plaintiff's counsel to move
to enter a verdict on the points made at the trial. On a former day in
this Term,
Humfrey obtained a rule nisi accordingly.
Parke, B. 7 [After stating the facts as set forth at the commence-
ment of the report, his Lordship proceeded :] Mr. Humfrey obtained a
rule nisi for a new trial, arid the Court granted it, as we thought the
subject fit to be more fully considered, notwithstanding the opinion
which had been given to the Lord Chief Baron, and on which he had
acted. The case has been fully argued at the bar, and all the authori-
ties considered ; and we are of opinion that the rule ought to be dis-
charged. We do not propose to decide whether the defendant's evi-
dence in this case, that no other bill was given to the drawer than one
for this gambling debt, superseded the necessity of further proof ; nor
to consider the question, whether the pleadings themselves give as much
notice that the bill will be the subject of inquiry as they do in an ac-
tion of trover for a written instrument, where a notice to produce is
unnecessary — it having been decided by the Court of Queen's Bench in
Read v. Gamble, 10 A. & E. 597, n., and in Goodered v. Armour, 3
Q. B. 956, and followed by this Court in Lawrence v. Clark, 14 M. &
W. 250, that in a case like the present the pleadings do not give con-
structive notice. We wish to decide this case upon the more general
ground, the principal subject of the argument at the bar. There are,
therefore, two questions to be considered.
First, whether the plaintiff's attorney was protected from answering
the simple question, as to the bill being in his possession and in court.
Secondly, whether on his refusal, it was competent for the defend-
ant to give secondary evidence of its contents, no previous notice to
produce having been given.
We are of opinion that the ruling of my Lord Chief Baron was right,
on both questions. The relation of attorney and client prevents the
former from disclosing any communication made to him in the or-
dinary course of his employment, and on the faith of the confidence
which the client reposes in his legal adviser. But the privilege does
not extend to matters of fact which the attorney knows by any other
means than confidential communication with his client, though, if
he had not been employed as attorney, he probably would not have
known them. Thus, he may prove the client's swearing to the truth
of an answer in Chancery; and his handwriting, by seeing it in docu-
i Tart of opinion omitted.
SeC. 1) CONTENTS OF A DOCUMENT 947
ments prepared by him in the name of his employer; in the same way
he may prove the fact that a particular document is then in his posses-
sion and in Court — for this is not a fact professionally communicated
to him ; though of course he could not be compelled to disclose the
contents of any document which is professionally intrusted to him, and
which he is acquainted with only by virtue of professional confidence.
That the privilege of an attorney does not extend to protect him
from answering whether the document is then in court, was decided by
Best, C. J., at Nisi Prius, in Bevan v. Waters, 1 Moo. & M. 235. In
Eicke v. Nokes, Id. 303, Lord Tenterden permitted a clerk of the de-
fendant's attorney to be asked, whether a copy of a bill had not been
given to him by the defendant ; and the Court of Queen's Bench decid-
ed, in the case of Coates v. Birch, 2 Q. B. 252, that an attorney might be
asked whether he had then in his possession, on the trial and in court,
a warrant, though he said he had no documents which he had not re-
ceived from his client in the course of their professional communica-
tions. These authorities are quite satisfactory to us : for it is obvious
that the answer to the question betrays no secret, directly or indirect-
ly communicated to him in professional confidence. * * *
The next question is, whether, the bill being admitted to be in court,
parol evidence was admissible on its non-production by the attorney on
demand, or whether a previous notice to produce was necessary. On
principle, the answer must depend on the reason why notice to produce
is required. If it be to give his opponent notice that such a document
will be used by a party to the cause, so that he may be enabled to pre-
pare evidence to explain or confirm it, then, no doubt, a notice at the
trial, though the document be in court, is too late. But if it be merely
to enable the party to have the document in court, to produce it if he
likes, and if he does not, to enable the opponent to give parol evidence ;
— if it be merely to exclude the argument 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, then the
-demand of production at the trial is sufficient. We are not able to
find a trace of the reason suggested on the part of the plaintiff, un-
til it is mentioned by Mr. Starkie, in his book on Evidence, and after-
wards by Mr. Taylor, in his. There is no satisfactory authority
which appears to us to support such a position. If this be the principle
on which notice to produce is required, it is a solitary instance, we
believe, in the law, prior to the New Rules, of its being necessary for
one party to give notice of the evidence which the other means to
adduce against him. If this be the true reason, the measure of the
reasonable length of notice would not be the time necessary to procure
the document, a comparatively simple inquiry, but the time ncces-ary
to procure evidence to explain or support it, a very complicated one,
depending on the nature of the plaintiff's case, and the document itself
and its bearing on the cause; and in practice such matters have never
been inquired into, but only the time, with reference to the custody of
943 THE BEST EVIDENCE (Ch. 6
the document, and the residence and convenience of the party to whom
notice has been given, and the like. We think the plaintiff's alleged
principle is not the true one on which notice to produce is required, but
that it is merely to give a sufficient opportunity to the opposite party to
produce it, and thereby to secure, if he pleases, the best evidence of the
contents; and a request to produce immediately is quite sufficient
for that purpose, if.it be in court. With this view the opinion of our
Brother Alderson accords, as reported in Lawrence v. Clark, 14 M. &
W. 253. There is no case in support of the plaintiff's position, except
that of Cook v. Hearn, above referred to, which we think, for the rea-
sons given before, quite insufficient ; and a case of Exall v. Partridge,
said to have been quoted by the late Lord Abinger when at the bar,
mentioned in the report of Doe d. Wartney v. Grey, 1 Stark. 283, but
not reported elsewhere, in which Lord Kenyon is said to have told the
attorney that he need not produce the instrument, which had a sub-
scribing witness, unless he had notice in time to enable him to pro-
duce the attesting witness. There is probably a mistake in this, as the
party requiring the document would have been bound, if it were pro-
duced, to call the subscribing' witness, unless in the excepted case where
the party producing it claimed title under it. This case cannot be relied
upon. In the case of Doe v. Grey itself, it did not appear that the at-
torney had received the notice to produce, which the night before was
served upon his wife, or had the lease itself in court on the trial. Nor
does that fact appear in either of the cases of Read v. Gamble and Law-
rence v. Clark, before referred to ; — the expression, that the counsel re-
fused to produce, is not equivalent, and the fact is not so proved. We
think that the rule must be discharged ; and it would be some scandal
to the administration of the law if the plaintiff's objection had pre-
vailed.
Rule discharged.
KINE v. BEAUMONT.
(Court of Common Pleas, 1822. 3 Brod. & Bing. 288.)
Action by the endorsee of a bill of exchange against the endorser.
At the trial, before Dallas, C. J., London sittings after last term, the
plaintiff offered to prove the notice of dishonour of the bill, (which no-
tice had been given in a letter,) by a copy of the letter, taken at the
time it was written ; but did not prove any notice to the defendant to
produce that letter.
It was objected, that a copy of the letter ought not to be allowed in
evidence, till it was proved that the defendant had received notice to
produce the original letter. A verdict was found for the plaintiff, with
leave for the defendant to move to set it aside and enter a nonsuit, if
this objection should be thought well founded.
Bosanquet, Serjt., on a former day, obtained a rule nisi accordingly.
Sec. 1) CONTENTS OF A DOCUMENT 949
Bosanquet, in support of his rule. Neither a notice to quit nor a
notice of action to a magistrate can be 'proved by a copy, where no
notice has been given to produce the original notice, except in cases
where the notice served was one of two duplicate originals, drawn out
and signed at the same time and by the same hand. This was the
ground of the decisions in Jory v. Orchard [2 B. & P. 39], Anderson
v. May [2 B. & P. 237], Gotlieb v. Danvers, 1 Esp. 455; Surtees v.
Hubbard, 4 Esp. 203; Philipson v. Chase, 2 Campb. 110; and forms
the distinction to which the decisions by Lord Ellenborough seem al-
ways to have reference. In Surtees v. Hubbard he refers to the case
of a notice to quit, and of such notices duplicate originals are usually
made ; but no case has decided that a copy of a notice to quit, where
duplicate originals have not been drawn out, can be given in evidence,
without proving notice to produce the notice served.
Dallas, C. J. 8 It appeared to me at the trial, that the objection
there taken, and now supported, was well founded. So I thought
originally ; so Lord Ellenborough thought at one time ; so Lord
Kenyon thought. But, at the suggestion of counsel, and on a refer-
ence made to some of the later cases, a verdict was taken for the
plaintiff, and I saved the point for the opinion of this Court.
In the case of Roberts v. Bradshaw [1 Starkie, N. P. C. 28], Lord
Ellenborough expressly says, that a letter acquainting a party with the
dishonour of a bill, is in the nature of a notice, and that it is unneces-
sary to prove notice to produce such a letter. I own I do not see any
great inconvenience which can arise, in practice, from giving notice
to produce such a letter ; but still the question comes to this, whether,
in substance and reason, the law is not by the late determination set-
tled, that where a copy of a letter, containing notice of dishonour of
a bill of exchange is tendered in evidence, such copy is admissible,
without proving a notice to the party in whose possession the letter
itself may be, to produce it.
I am not now going to enter into nice distinctions between a copy
and a duplicate original ; though I cannot see any great difference be-
tween a duplicate original and a copy made at the time; but, feeling
the necessity that there should be a uniformity in the practice of the
Courts, we will inquire what the practice of the Court of King's Bench
is on like occasions.
On this ground only we delay giving our judgment.
Burrough, J. I can see no substantial distinction between a dupli-
cate original and a copy made at the time.
Richardson, J. At present, I own I do not see any sound distinc-
tion between a duplicate original and a copy authenticated on oath.
Adjornatur.
And now,
Dallas, C. J., said: In this case we see no reason to change the
opinion we in part expressed when the question was last before the
s Opinion of Turk, J., omitted.
950 THE BEST EVIDENCE (Ch. 6
Court; but, as a matter of t general practice, we wished to collect the
opinion of other Judges, and the result is, that the copy of an original
letter, giving notice of the dishonour of a bill, is admissible, without
notice to produce the original letter, and, consequently that, in this
case, the verdict must stand, and the rule to enter a nonsuit be dis-
charged. 9
Rule discharged.
ENGLES v. BLOCKER et al.
(Supreme Court of Arkansas, 1917. 127 Ark. 385, 192 S. W. 193.)
This was an action by Blocker and another, as plaintiffs, to recover
commissions for effecting a trade or sale of certain leases for de-
fendant. There was a verdict for plaintiffs, and defendant appealed.
Hart, J. 10 * * * It is also insisted that the court erred in ad-
mitting the carbon copies of the letters written by Blocker which were
set out in the statement of facts. We do not think the court erred
in admitting these letters in evidence. Blocker testified that they
were mailed to Engles, and the letters written by Engles to Blocker
show that each of these letters except one dated July 11, 1914, and
that of the date of July 28, 1914, were received by Engles. The
record also shows that Blocker wrote Engles a letter notifying him
of the formation of the oil and gas corporation and did not keep a
copy of it. His counsel asked Engles to produce the copy of this
letter. Engles denied having received the letter, but admitted that
he had received all the other letters written to him by Blocker. We
think that a carbon copy of a letter addressed to an adversary in a
lawsuit is admissible in evidence without making any effort to re-
quire the adverse party to produce the letter received by him. In this
respect there is a distinction between letterpress copies and instruments
produced by carbon paper. What is called the "carbon copy" is pro-
duced by placing a sheet of carbon paper between two sheets of letter
paper so that the same impression produces both the letter and the
carbon copy. Because the carbon copy is made at the same time by
the same impression, it may be regarded as a duplicate of the original
letter itself and admitted in evidence without notice to produce the
letter. International Harvester Co. v. Elfstrom, 101 Minn. 263, 112
N. W. 252, 12 L. R. A. (N. S.) 343. 118 Am. St. Rep. 626, 11 Ann.
Cas. 107; Chesapeake & Ohio Ry. Co. v. F. W. Stock & Sons, 104
» In Menasha Wooden Ware Co. v. Harmon, V2* Wis. 177. 107 X. W. 299
(1906), the court held that the contents of a letter to a third person could not
be proved by letterpress copy, without showing that the original was unavail-
able, observing: "The original letters and letterpress copies arc not regarded
being duplicates. 2 Wigmore, Ev. § 1234, subd. 2, and note •". ; State v.
Halstead, T.\ [owa, 376 [35 N. W. 457 (1887)]; Seibert's Assignee v. Itagsdale,
L03 Ky. 206 [MS. W. 653 (1898)]."
io Statement condensed and part of opinion omitted.
SeC. 1) CONTENTS OF A DOCUMENT ^'^
Va. 97, 51 S. E. 161; Cole v. Ellwood Power Co., 216 Pa. 233, 65
Atl. 678.
The letters signed by Blocker of which copies were kept were mailed
to Engles as the evidence of their understanding, and Engles admits
that he received them. There seems to be no good reason for Block-
er, when he is seeking to enforce their obligation, to ask for the pro-
duction of the letters received by Engles. If proof of the duplicate
was important to Engles, he was at liberty to make use of it and could
have introduced the letter received by him to show that the carbon copy
was not a duplicate of it. Inasmuch as he did not do so, it is to be
presumed that the carbon copy introduced by Blocker was a duplicate
of the original letter received by him. * * *
Judgment affirmed. 11
YOUNG et al. v. PEOPLE.
(Supreme Court of Illinois, 1906. 221 111. 51, 77 N. E. 536.)
At the June term, 1905, the grand jury of Cook county returned in-
to the criminal court of said county an indictment against Louis Young,
Edward C. Keefe, and one McCormick, charging them with unlaw-
fully and feloniously obtaining from Patrick H. Greear, on the loth
day of June, 1905, the sum of $1,200 in cash by means of the conii-
dence game. Louis Young and Edward C. Keefe were arrested, Mc-
Cormick not being found, and upon a trial Young and Keefe were
found guilty and sentenced to the penitentiary for an indeterminate
period, and they have sued out a writ of error from this court to the
criminal court of Cook county to reverse said judgment of convic-
tion
Hand, J. 12 * * * The court also permitted the state to introduce
in evidence a copy of a telegram purporting to have been sent by
Keefe from Mankato, Wis., June 13, 1905, to Fred Gondorf (Mc-
Cormick) at Chicago, requesting Gondorf (McCormick) to meet Keefe
the next day at 10:30 at the Majestic Hotel, without proof of the loss
or destruction of the original telegram, or even that the copy offered
was a copy of the original. The copy introduced was the copy retained
bv the telegraph company among its files in its Chicago office, and the
court seems to have entertained the view that such copy was the
original. This was not the correct view. It was not shown that Fred
Gondorf (McCormick) ever received said telegram, or that it was
ever acted upon by either Keefe, McCormick, or Young, or that it
ii For a collection of the cases dealing with copies produced by mectouilcal
processes, see note to Int. Harvester Co. v. Elfstrom, 12 L. EL A. (N. S.) 343
U That a photograph of a document is regarded as ---..."lary evidence, see
Maclean v. Scripps, 52 Mich. 214, 17 N. W. 815, 18 IS. W . 209 (1883).
12 Statement abridged and part of opinion omitted.
952 THE BEST EVIDENCE (Ch. 6
was signed or sent by Keefe. It was introduced as the admission of
Keef e that he knew McCormick and desired to have him meet him. In
order to bind Keefe, it was necessary to show he signed or sent the
telegram, or that he acted upon the telegram after it was received,
and the best evidence of the contents of the telegram was the orig-
inal 13 telegram filed at Mankato, Wis. Matteson v. Noyes, 25 111.
591; Morgan v. People, 59 111. 58. It was error to admit in evi-
dence the copy of said telegram.
When Keefe was arrested, a card 14 was taken from his vest pocket
upon which was written, "L. ¥., 3030 Indiana avenue, phone Douglas
2685," which were the initials of Louis Young, the number of his
residence, and his telephone number. The police officer, who re-
ceived the card from the officer who took it from Keefe, testified that
the last time he saw it, which was four or five days before the trial,
he gave it to the assistant state's attorney. Young testified he had
never seen the card, knew nothing of its contents, or how Keefe came
by it. The court, without requiring the production of the card by
the assistant state's attorney, or proof of its loss or destruction, over
the objection of the plaintiffs in error, permitted the police officers to
state what was written on the card at the time it was taken from
Keefe. This evidence was exceedingly damaging to Young, as it
tended to connect Keefe with him, and it was error to admit parol
proof of what was written on the card without proof of the loss or
destruction of the card. Mariner v. Saunders, 5 Gilman, 113; White-
13 Compare Bailey, J., in Anheuser-Busch Brew. Ass'n v. Hntmacher, 127
111. 652, 21 N. E. 62G, 4 L. R. A. 575 (1SS9): " * * * In Durkee v. Vermont
Central Railroad Co., 29 Vt. 127 [1856], the rule which we consider the most
reasonable one is laid down, viz., that the original, where the person to whom
it is sent takes the risk of its transmission, or is the employer of the tele-
graph, is the message delivered to the operator, but where the person sending
the message takes the initiative, so that the telegraph is to be regarded as his
agent, the original is the message actually delivered at the end of the line."
i* There is a good deal of uncertainty as to how far the best evidence rule
applies to writing on chattels, or name and address or other marks on a pack-
age. Where the only purpose is to identify the article, it is generally held
that it is not necessary to produce the original.
Benedict, J., in United States v. Graff, 14 Blatch. 381, Fed. Cas. No. 15,244
(1878): "* * * The witness was allowed to describe the marks upon the
barrels he received, for the sole purpose of identifying the articles. To such
a question, the rule in regard to parol evidence of the contents of a docu-
ment, has no application. Evidence of the character under consideration is
properly admitted, when the object is to identify an article. Nor is the ad-
missibility of such evidence confined to cases where the character of the ar-
ticle sought to be identified forbids its production in Court. In Common-
wealth v. Morrell, 99 Mass. 542 [1S68], such evidence was admitted to identify
a tag. See, however, Kegina v. Fair, 4 Foster & Finlason, 336 [1S64]."
In some cases the relaxation of the rule has been carried much farther, as
in Com. v. Blood, 11 Gray (Mass.) 74 (1S58), where, in a prosecution for keep-
ing' intoxicating liquors, witnesses were permitted to testify as to the labels
on certain bottles and jugs which they observed at the defendant's place of
business, though it did not appear that they could not have been produced.
Here the labels were important, as indicating the sort of liquor in the bottles.
For a criticism of this practice, see Wigmore, § 1182.
Sec. 1) CONTENTS OF A DOCUMENT 953
hall v. Smith, 24 111. 166; Wing v. Sherrcr, 77 111. 200; Williams
v. Case, 79 111. 356.
The plaintiffs in error have urged other grounds of reversal, but,
as the matters complained of are not likely to occur on another trial,
it is not necessary that they be here considered.
For the errors of the court in admitting in evidence the copy of said
telegram and parol proof of the contents of said letter and the matter
written upon said card without the proper foundation having been laid
for the admission of secondary evidence, the judgment of the crim-
inal court will be reversed, and the cause remanded to that court for
a new trial.
Reversed and remanded.
THE KING v. INHABITANTS OF CASTLETON.
(Court of King's Bench, 1795. 6 Term R. 236.)
Two justices removed Martha Pedley from Castleton in the county
of Derby to the liberty of Bomford in the same county as the place
of her last legal settlement. On appeal the Sessions quashed the or-
der, subject to the opinion of this court, on the following case.
Martha Pedley the pauper was alleged to have been bound appren-
tice to Nicholas Timms of Castleton, by indentures bearing date in or
about the year 1780. It was proved on the part of the liberty of Castle-
ton that there were two parts of the indenture of apprenticeship, one
part whereof remained with the parish officers of Castleton, and which
had been destroyed, and the other part was given to the said Timms,
who delivered the same to Miss Taylor of Bomford at the time of
the assignment herein-after mentioned. Application was made to Miss
Taylor, not then or now residing at Bomford for that part of the in-
denture so delivered to her, who on such application said that she
could not find the same, nor did she know where it was. Miss Taylor
is living, but was not subpoenaed to the Court of Sessions as a wit-
ness to produce that part of the indenture which had been delivered
to her, or to give any account of the same being lost. Timms after-
wards by parol assigned the pauper to Miss Taylor in Bomford ; and
the pauper with Timm's consent served her in Bomford upwards of
40 days. The Court of Sessions were of opinion that the above was
not sufficient evidence of the indenture of apprenticeship. The only
question is whether that part of the indenture of apprenticeship
which was delivered to Miss Taylor is properly accounted for.
Balguy was in support of the order of sessions ; and
Clarke contra. But
The Court thought the case too clear for argument; that if the
indenture could not be produced, evidence must be adduced to shew
954 THE BEST EVIDENCE (Ch. 6
that it was lost or destroyed. Here it was traced to the hands of Miss
Taylor, and no further evidence was given to shew what had be-
come of it.
. Order of Sessions confirmed.
FREEMAN v. ARKELU
(Court of King's Bench, 1824. 2 Barn. & C. 494.)
Action for malicious prosecution.
At the trial before Park, J., at the last assizes for the county of
Gloucester, Dr. Timbrell the magistrate, before whom the charge was
made, was called as a witness on the part of the plaintiff. He stated
that the defendant came before him in March, 1823, that the examina-
tion was taken in writing; and that he, the witness, at the Easter
quarter sessions delivered the examination in court, either to Mr.
Bloxam the clerk of the peace or his deputy, then sitting at the table^
who usually received such papers. He, the witness, had a subpoena
duces tecum, but he had no papers with him respecting the matter ;
he said, he did not know where the information was, but it was not in
his possession. Edward Bloxam the clerk of the peace stated, that
he had received many papers from Dr. Timbrell at the Easter ses-
sions, but he could not find any but recognisances; that an indict-
ment had been presented to the grand jury on behalf of the defend-
ant, but that it was returned ignoramus, and it was usual on such oc-
casions to throw away or destroy the papers relating to the charge.
It was insisted on the part of the plaintiff that this was sufficient evi-
dence to show that the original papers were lost or destroyed, and
that parol evidence of the contents was admissible. The learned
judge was of opinion, that as Dr. Timbrell said he had delivered the
information to Mr. Bloxam or his deputy, the latter ought to have been
called to prove that the examination was either destroyed or not to be
found; and, consequently, that it was not sufficient evidence of the
destruction or loss of the document to let in parol evidence of the
contents. A rule nisi for a new trial was obtained in Michaelmas
term by Pearson, on the ground, that under the circumstances proved,
parol evidence was admissible.
Best, J. 15 Secondary evidence is not to be admitted until a party
has taken all reasonable pains to obtain the primary evidence. The
degree of trouble to be taken for that purpose depends upon the na-
ture of the instrument. If the instrument be of value, or of such a
nature that the reasonable presumption is, that it is in existence, strict-
er evidence is required in order to show that it is destroyed or lost.
If it be an instrument of no value, then the reasonable presumption
being, that it has been destroyed or lost, slight evidence only of its
i6 Statement condensed and opinions of Bayley and Ilolroyd, J J., omitted.
Sec. 1) CONTENTS OF A DOCUMENT 955
destruction or loss is required. That principle is fully established
by the case of Brewster v. Sewell, 3 B. & Aid. 296. Now it is impos-
sible, that the plaintiff in this case should have any interest in keep-
ing back the original information. Then has he taken all reasonable
pains to procure die best evidence. In the first place, in whom ought
the possession of such an instrument to be? It appears that it is not
the practice in cases of misdemeanors to return these informations to
the assizes or sessions. It is not required by law. The plaintiff de-
livered to Dr. Timbrell a subpoena duces tecum, commanding him to
produce the original depositions. He ought to have told the plaintiff
then that he could not comply with that subpoena, but without being
told that, the plaintiff goes further and subpoenas the clerk of the
peace. The plaintiff, therefore, provided himself with the testimony of
the person who ought to have had the depositions if they were not
returned to the sessions, and of the person who ought to have had
them if they had been returned. If the deputy of Mr. Bloxam received
them, he received them for his master, and in due course would have
placed them among his papers, and not being found among them, the
fair presumption is, that they are lost or destroyed.
Rule absolute.
GILBERT v. BOYD et al.
(Supreme Court of Missouri, 1857. 25 Mo. 27.)
This was an action against the trustees of the "African Methodist
Episcopal Church" to recover the value of the services of plaintiff
as sexton of said church. The plaintiff recovered before the justice
of the peace. An appeal was taken to the Law Commissioner's Court.
The plaintiff offered in evidence a certified copy of a deed to the
defendants as trustees of the African Methodist Episcopal Church,
and offered to prove that the original was not in his possession, or
within his power or control. The counsel for defendants objected
to the admission of the copy on the ground that no notice had been
served requiring the production of the original. The objection
was sustained. Plaintiff also offered to prove by a witness that de-
fendants were the acting trustees of said church. Defendants ob-
jected to the reception of this evidence on the ground that there
was better evidence, and that the books of the church should be pro-
duced. The objection was sustained. The plaintiff submitted to a
non-suit.
Scott, Judge. The 46th section of the act concerning conveyances
(R. C. 1S45) provides, that when any instrument in writing, convey-
ing or affecting real estate, is acknowledged or proved, certified and
recorded, and it shall be shown to the court that such instrument is
lost, or not within the power of the party wishing to use the same,
the record thereof, or the transcript of such record, certified by the
956 THE BEST EVIDENCE (Ch. 6
recorder, under the seal of his office, may be read in evidence without
further proof. As the statute prescribes the state of circumstances
which authorizes the deed to be read in evidence, we do not con-
ceive that the court had any authority to require any other fact to
be proved in order to make it testimony in the cause. The party
offering the transcript was entitled to read it upon proof that the
original was not within his power, and the court should not have
required him to prove a notice to produce the original.
As the record stands, we do not see that there was any written
evidence of the appointment of the trustees. If there was none, the
fact, of course, might have been proved by parol. We do not know-
that the rule which permits civil officers and officers of corporations
to be proved to be such by reputation and their acts extends to pri-
vate trustees when there is written evidence of their appointment.
It is said an agent may prove his agency when it is by parol. Greenl.
§ 416. In general, the fact of an agency cannot be proved by parol,
unless the non-production of the writing is first accounted for. Cow-
en's Notes, 1208. The official character of officers, both civil and cor-
porate, may be proved by acts and reputation. Cowen's Notes, 554;
United States v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552. The other
judges concurring, the judgment will be reversed, and the cause re-
manded. 16
RIGGS v. TAYLOE.
(Supreme Court of the United States, 1824. 9 Wheat. 483, 6 L. Ed. 140.)
Todd, J. 17 This was an action on the case, brought by the plaintiff
against the defendant, in the circuit court of the District of Columbia,
upon a contract in writing, entered into between the plaintiff and de-
fendant, for the sale of bank stock of the Central Bank of. Georgetown.
At the time that this contract was entered into, each party had a
counterpart of the contract, and the plaintiff, alleging the loss of his,
gave notice to the defendant to produce, upon the trial, the one which
he, the defendant, had; but the defendant declined producing it,
stating that he had lost his also. In consequence of these losses, the
plaintiff, upon the trial of the cause, offered to prove, by a person
who was a witness to the contract, and had subscribed it as such,
the contents of the contract, and to entitle himself to give this testi-
mony, made the following affidavit: "The plaintiff in this cause
makes oath, in relation to the memorandum of agreement between
io But see Scott v. Bassett, 174 111. 390, 51 N. E. 577 (1898), where a much
stricter showing was required as to prior deeds in the chain of title of the
party offering the record copy.
The wording of the recording acts differs so greatly that it is impracticable
to work out the various situations, which may arise under them.
" part of opinion omitted.
SeC. 1) CONTENTS OF A DOCUMENT 957
the defendant and himself, relative to the stock in the declaration
mentioned, that his impression is that he tore up the same, after the
transfer of the stock, believing that the statements upon which the
contract had been made were correct, and that he would have no
further use for the paper. He is not certain that he did tear it up, and
does not recollect doing so, but such is his impression. If he did not
tear it up, it has become lost or mislaid; and that he has searched for
it among his papers repeatedly, and cannot find it." The defendant
objected to this testimony, and insisted that no evidence ought to be
given of the contents of the said contract. The court sustained the ob-
jection; whereupon a verdict and judgment was given for the de-
fendant. The plaintiff filed a bill of exceptions to the opinion of the
court, excluding the evidence aforesaid from going to the jury, and the
cause is brought up to this court by a writ of error.
The only question to be decided by this court is, whether the cir-
cuit court erred in rejecting the said evidence.
Whether the plaintiff in the cause was a competent witness to
prove the loss or destruction of the written agreement, referred to in
the bill of exceptions, need not be inquired into, as it was not objected
to in the court below, and the question was waived by the defend-
ant's counsel in this court.
The admissibility of evidence of the loss of a deed or other 'written
instrument, is addressed to the court, and not to the jury.
The general rule of evidence is, if a party intend to use a deed, or
any other instrument, in evidence, he ought to produce the original,
if he has it in his possession ; but if the instrument is in the posses-
sion of the other party, who refuses to produce it after a reasonable
notice, or if the original is lost or destroyed, secondary evidence, which
is the best that the nature of the case allows, will in that case be ad-
mitted. Phillips on Evid. 399. The party, after proving any of
those circumstances, to account for the absence of the original, mav
read a counterpart, or, if there is no counterpart, an examined copy, or,
if there should not be an examined copy, he may give parol evidence of
the contents.
It is contended by the defendant's counsel that the affidavit is de-
fective, not being sufficiently certain or positive as to the loss of the
original writing. The affiant only states his impression that he tore
it up; and if he did not tear it up, it has become lost or mislaid;
that this is in the alternative, and not certain or positive. We do
not concur in this reasoning. An impression is an image fixed in
the mind — it is belief ; and believing the paper in question was de-
stroyed, has been deemed sufficient to let in the secondary evidence.
Phillips on Evid. 399; 7 East, 66; 8 East, 284. The alternative
alluded to is, "if he did not tear it up, it has become lost or mislaid."
Now, if he tore it up it was destroyed; if it was not destroyed it was
lost or mislaid; in either event it was not in the power or possession
958 THE BEST EVIDENCE (Ch. 6
of the affiant, which, we think, is sufficiently certain and positive to
let in the secondary evidence.
It is further contended that it appears from the plaintiff's own
showing the destruction or loss of the writing was voluntary and by
his default; in which case he ought not to be permitted to prove its
contents. It will be admitted that where a writing has been volun-
tarily destroyed, with an intent to produce a wrong or injury to the
opposite party, or for fraudulent purposes, or to create an excuse for
its non-production, in such cases the secondary proof ought not to be
received; but in cases where the destruction or loss (although volun-
tary) happens through mistake or accident, the party cannot be
charged with default. In this case the affiant states that if he tore
up the paper, it was from a belief that the statements upon which
the contract had been made were correct, and that he would have no
further use for the paper. In this he was mistaken. If a party
should receive the amount of a promissory note in bills, and destroy
the note, and it was presently discovered that the bills were forgeries,
can it be said that the voluntary destruction of the note would pre-
vent the introduction of evidence to prove the contents thereof ; or,
if a party should destroy one paper, believing it to be a different one,
will this deprive him of his rights growing out of the destroyed pa-
per? We think not. Cases of voluntary destruction of papers, aris-
ing from mistake, as well as from accident, might be multiplied ad-
infinitum. In this case, the evidence offered was that of the subscrib-
ing witness to the writing ; it was the best evidence that the nature of
the case admitted, which was in the possession or power of the party.
This court is therefore of opinion the circuit court erred in refusing to
let the said evidence go to the jury. 18 * * *
THE COUNT JOANNES v. BENNETT.
(Supreme Judicial Court of Massachusetts, ISCli. 5 Allen, 1G0, SI Am.
Dec. 738.)
Tort brought on the 12th of June, 1860, in the name of "The Count
Joannes, (born 'George Jones,')" for two libels upon him contained in
letters to a woman to whom he was then a suitor, and afterwards mar-
ried, endeavoring to dissuade her from entering into the marriage.
* * *
To sustain the second count, the plaintiff testified that he received
the letter therein set forth from his intended wife, and on the 1st
of June 1860, 'li" day before his marriage to her, he burned it and
did not take a copy; and he was then allowed under objection to
repeat the contents from memory.
it And bo to 7. Lord, to \. v. 280, 26 Am. Bep. 602 (1877), where
the part} destroyed certain canceled checks :in<i vouchers In accordance with
hi regular pracl l<
Sec. 1) CONTENTS OF A DOCUMENT
The judge ruled that neither of the letters was a privileged com-
munication ; and a verdict was returned for the plaintiff. The de-
fendant alleged exceptions.
Bigelow, C. J. 18 (after holding that the publication was not privi-
leged). But on another point raised at the trial, we are all of opin-
ion that the ruling of the court was erroneous. In support of his sec-
ond count, the plaintiff was permitted to testify concerning the contents
of the alleged libel, after it had appeared that he had voluntarily de-
stroyed the letter in which it was contained. This we think was a
violation of the cardinal principle that, where it appears that a party
has destroyed an instrument or document, the presumption arises that
if it had been produced it would have been against his interest or in
some essential particulars unfavorable to his claims under it. "Con-
tra spoliatorem omnia presumuntur." In the absence of any proof
that the destruction was the result of 'accident or mistake, or of other
circumstances rebutting any fraudulent purpose or design, especially
where as in the case at bar it appears that the paper was voluntarily
and designedly burned by the party who relies on it in support of his
action, the inference is that the purpose of the party in destroying
it was fraudulent, and he is excluded from offering secondary evi-
dence to prove the contents of the document which he has by his own
act put out of existence. If such were not the rule, and a party could
be permitted to testify to the language or purport of written papers
which he had wilfully destroyed, in support of his right of action
against another, great opportunities would be afforded for the com-
mission of the grossest frauds. A person who has wilfully destroyed
the higher and better evidence ought not to be permitted to enjoy the
benefit of the rule admitting secondary evidence. He must first rebut
the inference of fraud which arises from the act of a voluntary de-
struction of a written paper, before he can ask to be relieved from the
consequences of his act by introducing parol evidence to prove his
case. Thus it has been held that, when a note was burned by the
holder a short time before it fell due, he was bound to show in an
action upon a note that the act of destruction was honest and justifi-
able, or he could not recover ; and even an alleged negligent destruc-
tion or loss of an instrument, unaccompanied by evidence or explana-
tion to rebut the suspicion or inference of a fraudulent design, will
not authorize secondary evidence of the contents of the instrument.
Blade v. Noland, 12 Wend. (N. Y.) 173. 27 Am. Dec. 126. See,
Broadwell v. Stiles, 8 N. J. Law, 5S; Riggs v. Tayloe, 9 Wheat 483,
487, 6 L. Ed. 140; Renner v. Bank of Columbia, 9 Wl 1. 6 I..
Ed. 166. This doctrine is especially applicable to actions for libel, in
which the language used, and the sense and meaning which properly
attach to it, constitute the gist of the action.
In the case at bar, the plaintiff offered no evidence to show the
»» Statement condensed.
960 THE BEST EVIDENCE (Ch. 6
circumstances under which he destroyed the letter referred to in his
second count. He was not therefore entitled to offer any proof to
show the contents. On this ground the verdict is set aside, and a
New trial granted.
FISHER & BALL v. CARTER.
(Supreme Court of Iowa, 1916. 178 Iowa, 636, 160 N. W. 15.)
Ladd, J. 20 The petition is in two counts, one alleging the employ-
ment of plaintiffs by defendant to find a purchaser for his farm in
Kansas, and the reasonable value of so doing, and the other alleging
an agreement to pay $1 per acre for such services. * * *
II. Henten, with whom defendant exchanged farms, resided at
Albany, Mo. Fisher testified to having written Henten a letter and
to have deposited it in the United States mails properly addressed to
him at Albany, Mo., and that he did not have the original or know
its whereabouts, and then identified a copy, unsigned, as a true copy
of such letter. The copy was received in evidence over an objection
that there was no sufficient excuse shown for not producing the orig-
inal, and in any event that the letter was unsigned. Even though un-
signed, and frequently the signature is not impressed on the copy, the
witness testified that he wrote the original and mailed it, and this
sufficiently identified it as his, even though not signed. Was the ab-
sence of the original sufficiently accounted for? That the best evi-
dence of which the case is susceptible must have been adduced is the
well-established rule, and our inquiry is limited to ascertaining wheth-
er a copy of a letter is to be regarded as such evidence upon a showing
that the original is in the hands of a third party beyond the jurisdic-
tion of the court. In Bullis v. Easton, 96 Iowa, 513, 65 N. W. 395,
and Simons v. Petersberger, 171 Iowa, 564, 151 N. W. 392, the show-
ing was that the originals could not be obtained and secondary evi-
dence of their contents held rightly received; and in Waite v. High,
96 Iowa, 742, 65 N. W. 397, a remark is to be found that: "It does
not follow that, because the books were in another state, their pro-
duction at the trial could not have been secured." 21 * * *
20 Part of opinion omitted.
2i In the omitted passage the court cited the following cases as sustaining
the view that the fact that a document was in the hands of a third person
beyond the jurisdiction furnished sufficient ground for the admission of sec-
nn'.hirv ovi(]-iii'(. : P.owden v. Adior. !»5 Qa. 243, 22 8. E. 254 (1895); Zeller-
bach v. Allenberg, 99 Oal. 57, 83 Pac. 786 (1893); Butler v. Mail & Express
Pnb. Co., 171 N. V. 208, 63 N. E. 951 (1002); Ilovle v. Mann, 144 Ala. 516, 41
South. 835 (1905); Vina] v. Oilman, 21 W. Va. 801, 45 Am. Rep. 562 (1SS3) ;
Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 2!)i) (1873).
And as sustaining the conclusion In the principal case, the court cited Shaw
v. Mason, 10 Kan. 184 (1872); McDonald v. Erbes, 231 111. 295, 83 N. E. 162
(1907); Wiseman v. Northern Pac. Ey. Co., 20 Or. 425, 26 Pac. 272, 23 Am.
St. Rep. 135 (1891); Klrchner v. Laughlin, 6 N. M. 300, 28 Pac. 505 (1892);
Sec. 1) CONTENTS OF A DOCUMENT 961
Secondary evidence of the content? of a writing is received as the
best evidence obtainable only upon showing that the original writing
cannot be produced by the party offering such evidence within a rea-
sonable time by the exercise of reasonable diligence. Precisely what
must be done to constitute such diligence depends on the facts of each
case.
There is no criterion by which to measure the necessary effort, but in
all cases the party asserting the hiss or destruction of the paper or
document is required to show : "That he has in good faith exhausted
in a reasonable degree all the sources of information and means of
discovery which the nature of the case would naturally suggest, and
which were accessible to him." 1 Greenl. Ev. § 558.
It is not sufficient that the witness assert that it is lost; he must
search for it in every place where there is reasonable probability that
it may be found. To exact any less diligence would impair the ad-
vantage of reducing communications or agreements to writing. This
much is exacted from the party tendering evidence of the contents,
not because of the power of the court to order the production of the
writing found, but to make sure that the court has the best evidence
attainable by the party offering it on which to base its judgment.
That the instrument may be in another jurisdiction and in the cus-
tody of a third party should not relieve the party desiring to avail
himself of its use in evidence from exercising reasonable diligence to
procure the original writing for such purpose. The best evidence ob-
tainable is quite as essential to the administration of justice, whether
in the state or beyond its borders, and there is no sound reason for
relaxing the rule exacting diligence in its production when found where
its production may not be compelled. What will constitute such dili-
gence as said depends on the facts of each case, on the character and
importance of the writing, the purposes for which it is to be used, and
the place it would naturally be kept. If such an one as the owner
likely would preserve or one on which the action or defense is found-
ed a more thorough search would be exacted than were the paper of
little importance. Something also depends on whether the party was
aware beforehand that it would be required in the course of the trial
or this developed during the trial.
Manifestly there is some room for the exercise of sound discretion
in determining whether the degree of diligence has been cm
Surely the diligence exacted is not shown where no effort wh
been put forth to obtain a document or other writing beyond the juris-
diction of the court. Ordinarily the loan or use of it for the pur-
Justice v. Luther. 04 N. O. 793 (1886); Pringey v. Cuss. 16 Old. B2, B6
292 S Ann. Cas. 112 (1906); Bruger v. Princeton & St. M. Mm. Eire Ins.
129Wis. 281, L09 N. W. 95 (1906); Wood v. Cullen, 13 Minn. 394 (Gil.
[1868]); Kearney v. Mayor, 92 N. Y. 617 (1883); Turner v. rates, L6 B
14, 14 L. Ed. 824 <\^>;i).
Hint.Ev— 01
902 THE BEST EVIDENCE (Ch. 6
poses of the trial may be had for the mere asking or its production
may be obtained by taking the deposition of its custodian. That the
production of writings may not be compelled in another jurisdiction
does not alone show that they are inaccessible, for it is a matter of
common knowledge that ordinarily they may be and are procured in
one of the methods suggested, and that refusal to furnish, loan, or
produce the papers as required is exceptional. A somewhat extended
and attentive examination of the authorities has convinced us that
proof that writing is in the custody of a third party in another juris-
diction is not sufficient showing of diligence to justify a court in
foregoing the advantage of the original paper in reaching a decision,
that such proof does not establish inaccessibility, even though its pro-
duction may not be compelled, and that reasonable effort to procure
without success or conditions reasonably indicating that these would
have been of no avail or refusal to deliver or something of like con-
sequence should be shown before secondary evidence of the contents
of the writing is received. No effort whatever was made by appel-
lee to obtain the original letter either by borrowing it for use at the
trial or by taking the deposition of Henten and having it attached
thereto in connection with the testimony.
There is no showing that the copy introduced was a duplicate of
the original, and for this reason the authorities relied on by appellee
are not controlling. See International Harvester Co. v. Elfstrom, 101
Minn. 263, 112 N. W. 252, 12 h. R. A. (N. S.) 343, 118 Am. St. Rep.
626, 11 Ann. Cas. 107; State v. Albertalli, 78 N. J. Law, 90, 73 Atl.
128. But on motion for new trial it appeared by affidavit of Henten
thai several months prior to the trial the original letter had been de-
livered to defendant, and had not been returned. He must have had
it then at the time of the trial, and if the copy adduced was defective
in any manner might have corrected it by producing the original. The
ruling then, though erroneous, was without prejudice. * * *
Judgment affirmed. 2
22
HOWARD v. SMITH.
(Court of Common Pleas, 1841. 3 Man. & G. 254.)
On a rule nisi to enter a verdict for plaintiff or grant a new trial on
the ground of the admission of improper evidence on the part of de-
fendant. The facts are set out in the opinion. 23
Tin dat., C. J. This case, which, as well as that of Bethell v. Blcn-
cowe, (3 Man. & G. 119,) involves a question on the admissibility of
evidence offered to prove the terms of a tenancy, has stood over for
the consideration of the court. It was an action of replevin, in which
22 For a collection or the Inter mscs, sec note to Federal Chemical Co. v.
Jennings, L. E. A. L917D, 529 (1917).
23 Statement condensed.
Sec. 1) CONTENTS OF A DOCUMENT 963
the defendant, as bailiff of one Micklethwaite, acknowledged the tak-
ing as a distress for rent due from the plaintiff as tenant to Mickle-
thwaite at £20. per annum, payable quarterly, and in which the plain-
tiff pleaded non tenuit modo et forma.
The premises in question had been before held under a written agree-
ment by a person who was called as a witness, and who stated that the
plaintiff, in a conversation with him, had expressed his willingness to
take the premises upon the same terms as those upon which he, the wit-
ness, had held them. Whereupon they went together to Micklethwaite,
who agreed that the plaintiff should have them on the same terms. The
written agreement was mentioned in the conversation between the wit-
ness and the plaintiff, but it was not produced, either on the occasion
of that conversation or at the time of the conversation with Mickle-
thwaite. Another witness was called, who proved that the plaintiff had
stated to him that he held the premises at £20. a year : and it was fur-
ther proved that the plaintiff had said that he had gone to Mickle-
thwaite and had paid him £3, towards the quarter's rent due on the 29th
of September.
It was objected that after what had passed with the former tenant
respecting this written agreement, these declarations were no.t re-
ceivable in proof of the terms on which the premises were held by
the plaintiff, for the purpose of showing either the amount of the rent,
or that it was payable quarterly. But we are of opinion that the
statements made by the plaintiff himself of the terms upon which he
was actually holding the premises, were admissible against him, not-
withstanding what had passed respecting the written agreement under
which the former tenant had held ; and that the present case must be
governed by the law as laid down in Slatterie v. Pooley, (6 M. & \V.
664.)
Rule discharged. 24
24 The following colloquy took place on the argument: "Bompas, Serjt.,
contra. Where a tenant holds under a written instrument, the terms of the
tenancy cannot be proved by parol, — even though the parol testimony be ten-
dered, in an action to which the tenant is a party. — as the impression left on
The mind of the witness by statements made by the tenant. [Ersklne, J.
What objection can there be to the reception of the tenant's own statements
against himself?] The danger of misrepresentation or mistake Is the same
as it would be if the witness stated the impression left on his mind from
having read a written document. [Timlal, C. J. Slattery v. Pooley, in the
Exchequer is an authority against you.]"
In Slattery v. Pooley, 6 M. & W. *'<<;[ (lS4(h, the court announced broadly
that whatever the adverse party said had always been received against him,
though it involved the contents of a writing.
The Court of Queen's Bench in Ireland refused to follow this view. Law-
less v. Queale, 8 Ir. L. Rep. 3S2 (1845).
For a collection of the cases, see Swing v. Cloquet Lumber Co., 121 Minn.
221, 141 X. w. 117. L. K. A. 19180, 060 0.913), annotated.
964 THE BEST EVIDENCE (Ch. 6
PRUSSING v. JACKSON.
(Supreme Court of Illinois, 1904. 20S 111. 85, 69 N. E. 771.)
Boggs. J. 25 This was an action for libel against the plaintiff in
error by the defendant in error. The declaration charged that the
plaintiff in error composed and caused to be published in the Chicago
Times-Herald, a daily newspaper published in the city of Chicago,
a certain false, scandalous, defamatory, and libelous article, set forth
in hsc verba, with appropriate innuendoes, in the declaration. The
article is quiet lengthy, and it is not necessary to the proper disposition
of the case it should be recited in this opinion. * * *
YVe think, however, the plaintiff in error has lawful right to complain
of an erroneous ruling of the court as to the admissibility of evidence.
It was sought to maintain the action against the plaintiff in error as the
author of the alleged libelous publication which appeared in the Chica-
go Times-Herald. He was in no wise connected with the manage-
ment, control, or publication of the newspaper, and had no interest
therein. The action was against him on the alleged ground that he
was the author of a statement in the form of a letter, which appeared
as a part of the publication, and that he had given, or permitted one
Yarian. a reporter for the newspaper, to take, the letter under such
circumstances as that he should be held to have procured it to be pub-
lished. The cause was tried before the court and a jury. * * *
Counsel for the defendant in error, however, insist that the judgment
should not be reversed because of the reception in evidence of the
printed 26 article, for the reason that previous to its reception in evi-
dence declarations of the plaintiff in error had been proven, in sub-
stance, that the letter which appeared in the publication was the one
which the reporter had received in the office of the plaintiff in error.
The defendant in error, as a witness, had testified that the plaintiff in
error admitted to him that the statement published in the newspaper
was the same statement which the reporter, Varian, received in the
office of the plaintiff in error. Counsel now insist — to quote from their
brief — that "it is a well-settled principle of law that admissions of a
party against himself as to the contents of a writing are primary evi-
dence." This contention cannot be regarded as an open question in this
state. Strader v. Snyder, 67 111. 404, was an action on the case brought
by Snyder against the appellants for an alleged libel published in a
newspaper called the Macomb Eagle. The defendants were in no way
connected with the newspaper establishment, and the prosecution was
on the theory that they had prepared the manuscript, and delivered it
to the editor for publication. The court permitted the plaintiff's coun-
Part of opinion omitti
= « In the omitt c court held that it did not sufficiently appear
Iginal manuscript could not be obtained, so as to admit the printed
article as a copy.
SeC. 1) CONTENTS OF A DOCfMI 965
sel to read the printed article in evidence without first producing the
original manuscript. We there held it was error to permit the printed
publication to be read to the jury without first producing or accounting
for the manuscript. * * *
To hold the testimony of the plaintiff that the defendant said to or
in the hearing of such plaintiff that a writing material to he produced in
evidence contained certain statements to be sufficient to deprive the
defendant of the right to be judged by the writing itself is to abrogate
in its entirety the rule that the contents of a written instrument cannot
be proved by parol in the absence of proof accounting for and excusing
the nonproduction of the writing. Such testimony is proper as secon-
dary proof of the contents of an instrument which has been shown to be
lost, or its production in some legal manner excused. It is true, the
defendant in error caused the plaintiff in error to be sworn as a wit-
ness, and, over the objection and exception of the plaintiff in error,
asked him if he knew who composed that letter which appeared in the
article, and the witness, being required by the court to answer, re-
plied, "Yes, sir ; I did." On cross-examination he said he could not
say whether he wrote the article as it appeared in the newspaper, but
that he wrote a letter "similar to it.'' which he allowed .Mr. Yarian.
the reporter for the Times-Herald, to take from his office ; that he
did not authorize the publication of the article, and had never seen the
original since the reporter took it. The court erred in overruling the
objection to the question propounded to the plaintiff in error by coun-
sel for the defendant in error. The primary evidence of the contents
of the writing was the instrument itself, and the court erred in forcing
the plaintiff in error to become a party to an effort to prove the con-
tents of such writing by the preponderance of parol proof as to the
statement which appeared in the writing.
The judgment of the Appellate Court and that of the circuit court
are each reversed, and the cause will be remanded to the circuit court
for such other and further proceedings as to law and justice shall ap-
pertain.
Reversed and remanded.
SWING v. CLOOUET LUMBER CO.
(Supreme Court of Minnesota, L913. 123 Minn. 221, ill N. W. 117, r.. R. A.
it i ISC. t Miu.)
Action in the district court for St. Louis county by the trustee for
the creditors of the Union Mutual Fire Insurance Company of Cin-
cinnati to recover $1,106.88, the amount of a certain aent levied
against defendant as a policy holder in said company. * * *
The case was tried before Ensign. J., who made findings and or-
dered judgment in favor of plaintiff for $591.25. From the judg-
ment entered pursuant to the order for judgment, defendant appealed.
9G6 THE BEST EVIDENCE (Cll. 6
Hali.am, J. 17 * * * 1. Defendant contends that there is no com-
petent proof as to the contents of the premium note given by it or
of the policy issued by plaintiff. It is true neither document was
offered in evidence. It does appear that a premium note was given
and that a policy was issued. It was necessary for plaintiff to further
prove, by competent evidence, the amount of the note and the amount
and duration of the policy.
Plaintiff offered for this purpose the policy register of the com-
pany. This contains entries showing the issuance of policy No. 2652,
the date thereof, the original amount thereof, the amount of the
premium note, the amount that it was reduced by fire, and the amount
of insurance remaining in force. Plaintiff contends that the policy
register is competent evidence of these facts. Pie invokes the rule
applied to stock corporations that, where the name of an individual ap-
pears on the stockbook of a corporation as a stockholder, that fact
establishes prima facie his relation as a stockholder in an action against
him to enforce a stockholder's liability. 'Holland v. Duluth Iron Min-
ing & Development Co., 65 Minn. 324, 68 N. W. 50, 60 Am. St. Rep.
480; Turnbull v. Payson, 95 U. S. 418, 24 L. Ed. 437. It is un-
necessary to determine whether this rule is to be so extended as to
make a policy register of a company such as this evidence in an action
of this sort to establish the relation of policy holder, the amount of
the policy, and the existence and amount of the premium note. It
does appear in this case, from competent evidence, that, the two as-
sessments above mentioned were paid on a policy bearing the num-
ber 2652. It appears that defendant sustained a loss by fire; that
there was paid by the insurance company to defendant, by reason
thereof and on account of this policy, the sum of $33.26; that de-
fendant receipted therefor, and, in said receipt, recited that this policy
No. 2652 was reduced in the amount of this loss, leaving the sum of
$4,966.74 still in force. It further appears that on December 30,
1890, defendant returned to the company this policy with a letter con-
taining the following:
"Herewith return as requested,
Trem. Expires.
•_'<;.-,•_• Gen'IForm. sr-.ooo.oo $137.50 July 1,1894.
"Kindly give us proper credit for return premium and forward
note to us and oblige."
This testimony constitutes an admission in writing of the essential
parts of the policy and of the premium note. Some controversy has
isted in the past as to whether the contents of a written instrument
may be proved against a party by his own admissions, and the ques-
tion lias not heretofore been decided in this state. Webster v. Fcrgu-
, 94 Minn. 86, 91, 102 N. W. 213. The weight of authority is
t'. i he effect that such proof is competent. Slatterie v. Pooley, 6 M.
27 Statement condensed and pari <>r opinion omitted.
Sec. 2) OTHEB FACTS 96*3
& W. (Eng.) 664; 2 Wigmore, Evidence, § 1255 et seq. This rule is
sound in principle, at least when the admissions arc in writing,
they are in this case. We hold that a written admission of the con-
tents of a written document may be established against the party mak-
ing the admission, without production of the document or accounting
for its nonproduction. This evidence is in this case ample and con-
clusive, without resort to the policy register at all. * * *
Judgment modified.
SECTION 2.— OTHER FACTS
BERRYMAN v. WISE.
(Court of King's Bench, 1791. 4 Term R. 3GG.)
This was an action of slander by an attorney. The declaration
stated that the plaintiff was an attorney of this Court, and having been
employed in a particular cause had received a certain sum of money,
which the defendant charged him with swindling, adding a threat that
he would move the Court to have him struck off the roll of attornies.
At the trial at the last York assizes before Thompson, B. the plaintiff
proved the words, and his having been employed as an attorney in
that and other suits. The defendant's counsel objected that the plain-
tiff had not proved the first allegation in the declaration, namely,
that he was an attorney of this Court, which could only be proved,
by his admission, or by a copy of the roll of attornies : but the ob-
jection was overruled, and the plaintiff obtained a verdict, the learned
judge reserving the point, with liberty to move to enter a non-suit.
The Court were of opinion that this was sufficient proof, for the
defendant's threat imported that the plaintiff was an attorney. And
Buller, J., said that in the case of all peace officers, justices of the
peace, constables &c, it was sufficient to prove that they acted in those
characters, without producing their appointments, and that even in the
case of murder. The excise and custom-house officers indeed fall
under a different consideration : but even in those cases evidence was
admitted both in criminal and civil suits to shew that the party was a
reputed officer prior to the 11 Geo. I, c. 30, s. 32. In actions brought
by attornies for their fees, the proof now insisted on lias ne\ ■
required. Neither in actions for tithes is it necessary for the incum-
bent to prove presentation, institution, and induction ; proof that he
received the tithes, and acted as the incumbent, is sufficient.
Rule discharged.
90S THE BEST EVIDENCE (Cll. 6
THE KING v. INHABITANTS OF COPPULL.
(Court of King's Bench, 1S01. 2 East, 25.)
Two justices by an order removed Henry Bentham, his wife, and
three children by name, from the township of Standish with Lang-
tree to the township of Coppull, both in the county of Lancaster. The
Sessions on appeal confirmed the order, subject to the opinion of this
Court on a case, stating, That the. respondents proved by the evi-
dence of the pauper, that his father many years ago purchased a small
estate for less than £30. in the township of Coppull, and occupied it
himself for about five years, during which time the pauper was part
of his father's family ; and that the pauper's father during his occu-
pation of the estate actually paid the parish rates or assessments in
respect of his estate : but the respondents did not produce any rates
or assessments, and had not given any notice for the production of the
assessments or rates. The appellants objected, that without the pro-
duction of them, or having given notice to produce them, there was
no legal or proper evidence that the pauper's father was charged for
the same.
Lord KJBnyon, C. J. It is impossible to argue that parol evidence
may be given of rates which are not produced, nor any notice proved
to produce them, nor any reasonable account given for their non-
production. The best evidence was not given which the nature of
the thing would admit of.
Grose, J. It is in every day's experience to reject parol evidence of
a writing which may and ought to be produced.
Per Curiam. Orders quashed.
COTTERILL v. HOBBY.
(Court of King's Bench, 1S25. 4 Barn. & C. 465.)
The declaration stated, that at the time of the grievances complained
of, a certain close, situate, &c, was in the possession and occupation of
one 11. C. Morgan, as tenant thereof to the plaintiff, the reversion then
and still belonging to the plaintiff, and that the defendant cut down a
quantity of branches off and from certain trees then standing and
.wing in and upon the said close; second count trover for timber.
Plea, tl leral issue. At the trial before Garrow, 1'... at the last Lent
ize for I [ereford, Morgan was called as a witness for the plaintiff,
1 proved thai he was tenant to 'the plaintiff of the close in question,
under a written agreement, that defendant lopped some branches off
the trees growing there, and carried them away. \'<> evidence of the
value iven. For the d< fendant, it was objected that the agree-
1 should have been produced, for that
it could not otherwise appear that the plaintiff was reversioner of the
SeC. 2) OTHER FACTS 900
trees. The learned Judge refused to nonsuit the plaintiff, and the jury
returned a general verdict with £5. damages. In Easter term, Camp-
bell obtained a rule nisi for entering a nonsuit against which,
Taunton, and Oldnall Russell, now showed cause.
Bayley, J. It having been shown that Morgan held under a written
agreement, I am of opinion that the terms of the holding could only
be proved by that instrument, and, consequently, that the verdict on the
first count cannot be sustained. But the objection does not apply to the
count in trover. The trees were equally the property of the plaintiff,
whether they were or were not excepted out of the demise; and it
1 aving been proved that the defendant carried away some of the
branches, I think that the plaintiff is entitled to nominal damages, al-
though no proof of the value was given.
Horloyd and Littledale, J.J., concurred.
Verdict reduced to Is. 2 *
DOE ex dem. BINGHAM et al. v. CARTWRIGHT.
(Court of King's Bench, 1S20. 3 Barn. & Aid. 326.)
This was an ejectment tried before Richardson, J., at the last as-
sizes for the county of Worcester. The bailiff proved, that on Lady-
day, 1818, he agreed that the land in question should be let to the de-
fendant, and that he should sign an agreement with a surety. A mem-
orandum of agreement was drawn up : the terms were read over to the
defendant, and he assented to them. However, he never signed the
agreement, or brought any surety. A notice to quit was served before
Midsummer-day, 1818, to quit at the Lady-day following. It was ob-
jected, that the terms of the tenancy, the time at which it was to com-
mence and end, ought to be proved by the written memorandum, drawn
up by the witness, and assented to by the defendant. The learned
Judge was of that opinion, and nonsuited the plaintiff; but reserved
liberty to move to enter a verdict. A rule nisi having been obtained for
that purpose in last Michaelmas term,
Abbott, C. J. I think, that in this case, there never existed any
written agreement between the parties. The paper referred to at the
trial would not become an agreement, till the defendant had brought a
surety and executed it. It contained a mere proposal ; and, upon the
evidence, it appears to have been an unaccepted proposal. The defend-
ant might have been turned out of the premises without any notice to
quit ; and there could, therefore, be no necessity for producing this
memorandum.
Rule absolute. 29
*8 For an elaborate review of the English cases on this point, see Strother
v. Barr, r, Bing. 136 (1828).
-••' And so in Rex. v. Wrangle, 2 Adol. & El. 514 (1835), where an unsigned
written memorandum of an oral agreement had been prepared at the dictation
of both parties.
970 THE BEST EVIDENCE (Cll. 6
KEENE v. MEADE.
(Supreme Court of the United States, 1S30. 3 ret. 1, 7 L. Ed. 5S1.)
In the circuit court, the testator of the defendant in error, Richard
W. Meade, instituted an action against Richard R. Keene, the plaintiff
in error, for money lent and advanced to him, in Spain, where Mr.
Meade, at the time of the loan resided, and carried on business as a
merchant. In order to establish the claims of the plaintiff below, a com-
mission was issued to Cadiz ; and under the same, certain depositions
were taken, which were returned with the commission. * * *
The defendant's counsel also objected to the deposition of F. Ru-
dolph, so far as the same went to prove the item of $250 in the plain-
tiff's account; alleging as the ground of the objection, that as there
was a written acknowledgment made by the defendant, the writing
should be produced, and the same could not be proved by parol. The
plaintiff, by his counsel, offered to withdraw, and stated, that he with-
drew and waived that part of the deposition which went to prove the
existence of a written acknowledgment of receipt, and he relied only on
the proof of the actual payment of the amount paid by the witness.
The court overruled the objection, and permitted the evidence to be
read.
Thompson, J. 30 This case comes up on a writ of error to the cir-
cuit court of the District of Columbia, and the questions for decision
grow out of bills of exception taken by the defendant at the trial, and
relate to the admission of evidence offered on the part of the plaintiff,
and objected to by the defendant. * * *
The general objection to the testimony taken under the commis-
sion on account of the alleged variance having been overruled, the
plaintiffs counsel read the deposition of F. Rudolph, which, in that
part which went to prove the first item of $250 in the plaintiff's ac-
count, states that the defendant made the entry on the plaintiff's rough
cash-book, himself ; writing his name at full length, at his request,
not so much for the sake of the receipt, as in order for him to be-
come acquainted with his signature, and the way of spelling his name.
The witness fully proved the actual payment of the money. But the
defendant objected to such parol proof, as written evidence of the
payment existed and should be produced. This objection we think not
well founded. The entry of the advance made by the defendant himself
under the circumstances stated, cannot be considered better evi-
dence, within the sense and meaning of the rule on that subject, than
proof of the actual payment. The entry in the cash-book did not
change the nature of the contract arising from the loan, or operate as
an extinguishment of it, as a bond or other sealed instrument would
have done. If the original entry had been produced, the handwriting
<>i the defendant must have been proved, a much more uncertain in-
:•" Statement condensed and part of opinion omitted.
Sec. 2) OTHER FACTS ^<1
quiry than the fact of actual payment. It cannot be laid down as a
universal rule, that where written evidence of a fact exists, all parol
evidence of the same fact must be excluded. Suppose the defendant
had written a letter to the plaintiff acknowledging the receipt of the
money, it certainly could not be pretended that the production of this
letter would be indispensable, and exclude all parol evidence of the ad-
vance. And yet it would be written evidence. The entry made by the
defendant in the cash-book was not intended, or understood to be a
receipt for the money, but made for a different purpose; and even if
a promissory note had been given as written evidence of the loan, the
action might have been brought for money lent, and this proved by
parol. The note must have been produced on the trial ; not, however,
as the only competent evidence of the loan, but to be cancelled, so as
to prevent its being put into circulation ; a reason which doe? not in
any manner apply to the present case. This objection has been ar-
gued at the bar, as if the court permitted the plaintiff to withdraw or
expunge that part of the deposition which related to the written ac-
knowledgment, in order to let in the parol evidence. But this view
of it is not warranted by the bill of exceptions. This was offered to
be done by the plaintiff's counsel, but no such permission was given by
the court.' The parol evidence was deemed admissible, notwithstand-
ing the written entry of the advance. The parol evidence did not in
any manner vary or contradict the written entry, and no objection
could be made to it on that ground. Nor does the non-production of
the written entry afford any inference, that, if produced, it would have
operated to the prejudice of the plaintiff. Nor can it in any manner
injure the defendant. The production of the written entry in evi-
dence would not protect the defendant from another action for the
same cause, as seemed to be supposed on the argument. The charge
would not be cancelled on the book, but remains the same as before
trial; and the defendant's protection against another action depends
on entirely different grounds. * * *
. Judgment affirmed. 31
GILBERT v. DUNCAN.
(Supreme Court of New Jersey, 1861. 29 N. J. Law. 133.)
Whelpi.EV, C. J. 32 The action in the court below was upon two
promissory notes, made by Gilbert, payable to David Rowland, and by
him endorsed to the plaintiffs— the first, dated December 1st. 1856, for
918; the second, for $1,464.28, dated 9th March, 1857. They w<
dated at New York, and there transferred to the plaintiffs below. Both
31 And so the payment <»f money may i"' proved without the production of
the receipt, l'.rannan v. Henry, IT.". Ala. 154, .".7 South. D67 (1012).
- Part of opinion of Whelpley, C. J., and dissenting ..pinion of Van Dyke.
J., omitted.
972 THE BEST EVIDENCE (Ch. 6
notes were made by Gilbert, for the accommodation of Rowland:
such was the evidence at the trial, and that was not controverted.
There was no evidence that Duncan, Sherman & Co. knew, at the
time of their transfer to them, that the notes were not business paper.
At the trial, the defendant, Gilbert, set up, among other defences,
that, at the time the last note was transferred to Duncan, Sherman &
Co., they agreed to give up to Rowland the first note. On this point
the evidence was conflicting, and the court charged the jury that, if
such was the agreement, the plaintiffs could not recover upon the first
note. The verdict was for the amount of both notes. For the purposes
of this case, we must assume, such having been the finding of the jury,
that no such agreement was made, unless that finding may have been
produced by some erroneous ruling of the court bearing upon that is-
sue.
The evidence on the part of Gilbert tended to prove that, at the time
the second note was transferred, Duncan, Sherman & Co. agreed to
give up the first note. The evidence on the part of the plaintiffs, upon
which the jury must have rested their verdict as to this point was,
that they never agreed to give up the note for $918; that the note for
$1,464.28 was not passed to them to take up the note for $91S, but
another note of Gilbert's passed by Rowland to them for $1,140.20.
To the admission of parol evidence of the existence and amount of this
note the defendant's counsel objected, unless proof of its loss or de-
struction was first made, assigning as the ground of the objection, that
it contravened the rule excluding parol evidence of the contents of writ-
ten instruments.
This is one of the errors assigned.
The note was not an agreement between the parties. The plain-
tiffs in no wise rested their claim upon it; it was entirely collateral
to the issue ; indeed the evidence was immaterial to the issue, in this
sense, that the plaintiff's proof was complete, for all the purposes of the
case, without proof of the existence or the amount of the note. The
defendant had proved by one witness an agreement with the plain-
tiff's clerk to give up the note for $91S; the plaintiffs' clerk denied
the agreement to give up that note ; and further said, the note which
he did agree to give up, was for a different amount, for $1,140.20.
It is difficult to lay down any rule which will accurately define in
what cases it is not necessary to produce a writing as the best evidence.
There is much conflict in the cases upon this subject, arising more,
perhaps, out of the application of the rule to differing cases than as. to
the rule itself. All the cases recognize the principle that, where the
contents of the instrument are required, it must be produced, or its
absence excused.
Savage, C. J., in McFadden v. Kingsbury, 11 Wend. (N. Y.) 667,
said : "I have always understood the rule to be, that parol evidence
of the contents of papers may be given when they do not form the
foundation of the cause, but merely relate to some collateral fact."
Sec. 2) OTHER FACTS 973
The judgment of Parker, C. J., in Tucker v. Welsh, 17 Mass. ll
Am. Dec. 137, proceeds also on the ground that the contents of a
paper collateral to the issue may he proved by parol.
Mr. Greenleaf, also, in his work upon Evidence, paragraph 89,
adopts the rule as enunciated by Chief Justices Savage and Parsons,
citing as authority the cases just referred to. The author of the I
in Phillips' Ev. Cow. & Hill's Notes, 2 vol. 398, after an elaborate ex-
amination of these cases, and others cited hy him as maintaining the
opposite doctrine, says: "We know of no ground, either upon princi-
ple or authority, upon which the doctrine can be maintained. Wh< re,
however, the contents are immaterial, and the question is one of mere
identity, as in the present case, no reason is perceived why the pro-
duction of the instrument should be required before the witness is
permitted to allege its existence."
To enforce such a rule in every case would only serve to embarrass
the administration of justice. If the statement of plaintiff's clerk was
true, how could the plaintiff be aware that the production of the note
for $1,140.20 would be of any avail?
In general, the principle adopted seems to be, that the existence of
the paper may be shown by parol evidence for many purposes, when
the existence of the paper is not shown for the purpose of maintaining
or destroying any right involved in the action, but as a fact or cir-
cumstance collateral to the questions at issue. Lamb v. Moberly, 3 T.
B. Mon. (Ky.) 179; Boone v. Dykes' Legatees, Ibid. 531; United
States v. Porter, 3 Day (Conn.) 284, Fed. Cas. No. 16,074.
The rule of evidence, the infringement of which is assigned for er-
ror, is that requiring the best evidence to be given the nature of the
case admits. It is said the existence of such a note can be best proved
by its production. That may be the case — it would so seem. But the
cases already cited show that it is impossible to adhere to this rule.
For instance, a party proceeds, upon a trial, to give parol evidence of
an agreement; the adversary objects that this cannot be done, and
by cross-examination shows that the agreement was reduced to writ-
ing, that there was such an agreement in writing; it was never doubt-
ed that this may be done, and yet, if this rule is of universal applica-
tion this could be done only by the writing itself. The rule must
therefore have some limitation. No other rule can be adopted in prac-
tice than to permit the existence of a paper to be proved by parol
fact in all cases where its contents are not material to the rights of the
parties in the action, or the party proving it does not seek to avail him-
self of its contents as proof of any fact stated in it, or of any obliga-
tion created or discharged by it.
A fact stated in a writing may be proved aliunde, if it had existence
independent of the paper as a payment of money, although a receipt of
release has been given.
I entirely agree with the doctrine stated in the notes to Phillips' Evi-
dence, that where the statements of a writing are desired as evidence
974 THE BEST EVIDENCE (Cll. 6
that such statements were made in writing, the writing, as the best
evidence, must be produced, even if these statements are not pertinent
to the main issue between the parties. -
The evidence was properly received by the judge. 33 * * *
TAYLOR v. PECK.
(Court of Appeals of Virginia. 1S71. 21 Grat. 11.)
MoncurE, P. 34 * * * The question presented by this assignment
of error arises on the 4th bill of exceptions ; from which it appears,
that on the trial of the cause, the plaintiff proved herself to be the
owner in fee of the lands in question, and that defendant was in
possession on the 5th day of November, 1869, the date of the writ,
and was still in possession at the time of the trial, and the plain-
tiff lived two miles from the main dwelling which was occupied by
the defendant on said premises ; and closed her evidence. The de-
fendant, to sustain the issue on his part, then introduced two re-
ceipts signed by the plaintiff in the words and figures following, to
wit:
"Received of C. L. Peck, three hundred dollars, amount in full for
the rent of my property for the year 1868. M. B. Taylor."
[U. S. revenue stamp, 2 cents; cancelled.]
"Received of C. L. Peck, January 1, 1870, three hundred dollars
in full, for the rent of my property for the year 1869, according to
contract. M. B. Taylor."
[U. S. revenue stamp, 2 cents; cancelled.]
And proved that the sum of money mentioned in the receipt which
is not dated, was paid partly in 1868, and the balance in September,
1869; that the payment in September, 1869, was not made by the de-
fendant in person, but by an agent, and that the receipt was given
on the 1st day of January, 1870. And he further proved that the sum
of money mentioned in the receipt bearing date January 1st, 1870, was
actually paid on the said 1st day of January, 1870, and was for the
use and occupation of said premises for the year 1869; and he fur-
ther proved that he had been in possession of said land since the 1st
of January, 1868. And thereupon the defendant announced that he
was through with his evidence. * * *
The defendant's evidence was excluded by the County Court upon
t lie ground that parol evidence is inadmissible to prove the contents
The same rule has been applied in an action to recover the price to be
paid for a cote Bold to defendant, Lamb v. Moberly, :: T. B. Mon. (Ky.) 17I»
(1826); ami iii an action to recover the amount agreed to he paid for the
plaintiffs signature to an instrument, Shoenbergor's IO.x'rs v. Ilackman, 37
Pa. st (I860).
■•i St I Of fads and part Of opinion omitted.
Sec. 2) OTHER FACTS 9
I 'I
of a written contract, unless the lion production of such contract is
first duly accounted for; and that to admit the said evidence of the
defendant in this case, would be to violate that rule.
There is no doubt about the existence of the rule or its wisdom.
The only question is, does this case fall within it? Or does not this
case come within some exception to the rule?
First. We think this case does not fall within the rule. In other
words, that the rule does not apply to it. The evidence was not of-
fered, and does not tend, to prove the contents of a written contract.
It was offered, and tends only, to prove that at the time of the insti-
tution of the action, the defendant occupied the land in controversy as
the plaintiff's tenant. The terms of the tenancy, or of the lease
under which the defendant then held the premises, was perfectly im-
material. If he held them at that time as tenant, no matter on what
terms and conditions, he held them lawfully, and the plaintiff had no
right to recover in the action. That he held them as tenant of the
plaintiff, and not adversely, was a fact which could be proved by parol
evidence, and need not of necessity be proved by the production of
the lease, though there may have been no reason for its non-produc-
tion. It is well settled in England that the existence of a tenancy
between the parties may be shown by parol, though the demise be in
writing. Rex v. Holy Trinity, Kingston upon Hull, 7 Barn. & Cres.
611, 14 Eng. C. L. R. 101. If the fact of the occupation of land is
alone in issue, without respect to the terms of the tenancy, this fact
may be proved by any competent oral testimony, such as payment of
rent, or declarations of the tenant, notwithstanding it appears that
the occupancy was under an agreement in writing; for here the writ-
ing is only collateral to the fact in question. Thus the law is laid down
by Professor Greenleaf , 1 Greenl. on Ev. § 87 ; and he cites the fol-
lowing cases to sustain him: Rex v. Holy Trinity, &c, supra; Doe v.
Harvey, 8 Bing. 239, 241 ; Spiers v. Willison, 4 Cranch, 39S, 2 L.
Ed. 659; Dennett v. Crocker, 8 Greenl. (Me.) 239, 244. The case of
Rex v. The Holy Trinity, &c, which was decided by the whole court
of King's Bench in 1827, was questioned in the case of Strother, &c,
v. Barr, &c, decided by the common pleas in 1828; 5 Bing: R. 136, 15
Eng. C. L. R. 391 ; and the opinion of Best, C. J., in that case, was
much relied upon in the argument of the counsel for the plaintiff in
this case. But in that case there was an equal division of the court,
and the decision was against the opinion of the Chief Justice. He was
the only judge in the case who questioned the correctness of the deci-
sion of Rex v. The Holy Trinity, &c, while two of the three other
judges strongly relied upon it as a binding authority.
Secondly. But even if the rule in question were applicable to such a
case as this, it comes within the exception to the rule which was de-
clared in the case of Slatterie v. Pooley, 6 Mees. & Welsh. K. 664,
decided by the Court of Exchequer in 1840, and cited by the Attorney-
07G THE BEST EVIDENCE (Ch. 6
General in this case. That exception is, that "a parol admission by a
party to a suit is always receivable in evidence against him, although it
relate to the contents of a deed or other written instrument ; and even
though its contents be directly in issue in the cause." * * *
The case of Slatterie v. Pooley has since been confirmed by a unan-
imous decision of the Court of Common Pleas in the case of Howard
v. Smith, 3 Man. & Gran. 254, 42 Eng. C. L. R. 139, decided in
1841, and also cited by the Attorney-General.
According to these cases, which we think correctly expound the
law, the receipts of the plaintiff for rent for the years 1868 and 1869,
which were excluded as aforesaid, were clearly admissible.
And we think that all the evidence of the defendant which was
excluded by the County Court was admissible evidence, and ought
not to have been so excluded. * * *
Judgment reversed. 35
HATCH v. FOWLER et al.
(Supreme Court of Michigan, 1873. 28 Mich. 205.)
Cooley, J. 36 Fowler and Kelsey replevied from Hatch a quantity
of lumber which he, as sheriff of Lapeer county, had levied upon by
virtue of a writ of attachment against one Doyle. The levy was
made at Imlay City, but the lumber was not removed, nor was any one
left by the sheriff in charge of it. The sheriff duly endorsed the levy-
on his writ, and claimed afterwards to hold the property by virtue of
it, and refused to give it up on demand by plaintiff's agent. It was con-
ceded that the lumber belonged originally to Doyle, and had been man-
ufactured by him at Burlington, some eighteen miles from the place
where the attachment was served. Plaintiffs claimed to have bought
the lumber of Doyle, and the defense was that if any such purchase
was ever negotiated it had never been perfected, so as to pass the title,
and even if it had been, so as to be valid and complete as between the
parties, it was presumptively fraudulent as to the creditors of Doyle
and therefore prima facie void as against the writ in the hands of
Hatch as sheriff.
To prove their title, Fowler, one of the plaintiffs, took the stand as
a witness, and testified that in August, 1870, he was acquainted with
Doyle, and went from Bay City with Kelsey to see him on the 16th
of that month. Doyle had some lumber sawed, and a stock of logs
in his mill to saw at that time. Plaintiffs made with him a written con-
Aii'l so in Minnesota Debenture Co. v. Johnson, !><> Minn. 91, 104 N. W.
11 r.i, L07 N. W. 740 (1U06), testimony by the defendant that be held as tenam
of X.
3« Part of opinion omitted.
Sec. 2) OTHBB FACTS 977
tract for the purchase of a certain amount of lumber. The written
contract was then produced and identified, but it being attested by a
subscribing witness who was not produced, it was not received in evi-
dence. Fowler then proceeded to say that plaintiffs paid Doyle five
hundred dollars at that time. He was then asked whether they sul
quently made any payment to Doyle on the lumber. The question was
objected to, but allowed, and subject to objection the witness pro-
ceeded to say that afterwards in September, they paid upon the con-
tract five hundred dollars more, and in December seven hundred and
seventy-five dollars more. * * *
The first question we shall consider is, whether plaintiffs were at
liberty to make oral proof of the purchase they claimed to have made,
when it was conceded that the contract was in writing. The plain-
tiffs, in the discussion of this question, have mad^ the following
points :
First. That the action is purely a possessory action.
Second. That as the plaintiffs claim title from Doyle, the spe-
cific terms whereby they acquire title are material only to the parties
to the contract, to wit: Doyle, Fowler and Kelsey.
Third. That Hatch is a stranger to the contract, and has no right
to inquire into its terms, except so far as they affect the rights of
creditors whom he represents.
Fourth. That until Hatch had entered upon his defense, and shown
that he represented creditors, proof of a sale which could only be
avoided by creditors would be immaterial and collateral to the then
issue.
The third of these positions we have no occasion to discuss ; the
other three appear to us to assume all that is in dispute between the
parties.
It is very true that replevin is a possessory action ; and as a gen-
eral rule a party in the actual and undisputed possession of property
cannot be required, as against a mere intruder, to show how he came
possessed of the title, or even that he has any title at all. But in this
case the plaintiffs did not plant themselves upon their possession, and,
from the very equivocal nature of their possession, it is not very clear
that they could have done so with safety, even as against a stranger.
They began their case by showing title to the lumber in Doyle, and
endeavoring to show that they had acquired that title by purch
They endeavored to prove title, instead of possession; and though,
as an important step in establishing title, they gave evidence to show-
possession had been taken by them, this was incidental only to the
main fact sought to be made out, and not the main fact itself.
Starting thus, with the title in Doyle, how were the plaintiffs to de-
duce it to themselves? Clearly by showing their purchase. But how
Hint.Ev.— 62
978 THE BEST EVIDENCE (Ch. 6
were they to show their purchase except by proving the terms of the
agreement, and a compliance therewith on their own part? This very
case illustrates, in a very striking manner, the importance of the rule
which requires the written contract to be produced in evidence.
The plaintiffs insist upon a completed sale to themselves. How much
did they buy? What were the conditions, if any, to be performed
before title was to pass? What was the understanding by the con-
tract regarding prices, inspection and delivery? Not one of these
questions is satisfactorily answered by the parol evidence which was
received, and different inferences are admissible. Some of the un-
disputed facts, though not absolutely inconsistent with a completed
sale, are facts which are always held to require satisfactory explana-
tion, in the absence of which the law presumes the title was not to
pass. Such are the facts that the sum to be paid was not determined,
and the inspection necessary for that purpose had not been had. If it
were the clear intent of the parties that the title should pass notwith-
standing, it might doubtless pass; but that intent is to be ascertained
from their contract, and not from what they may say of it afterwards
in a controversy with third parties. Nor can it be said that a third
party proceeded against as a trespasser has no interest in knowing
whether the conditions of the sale have been complied with. He has a
vital interest in knowing whether the party who prosecutes him has
a right to prosecute; for even though such party recover judgment, if
he have no right in fact, his recovery will be no bar to a subsequent
suit by the real party entitled.
Presumptively, on the plaintiff's own showing in this case, the title
had not passed from Doyle. The mere delivery of a symbolical pos-
session would not be conclusive. That of itself would not be so sig-
nificant in its bearing upon the question whether the sale was com-
pleted, as the fact that the quantity and amount to be paid were not
determined. This subject was so fully discussed in Lingham v. Eg-
gleston, 27 Mich. 324, that we may content ourselves with a refer-
ence to that case, only remarking that parties who claim the title
in opposition to such significant circumstances cannot complain that
secondary evidence is objected to when that of the highest nature
alone could give satisfactory explanation if any is possible.
This case has no analogy to Rayner v. Lee, 20 Mich. 384, and the
other cases referred to by counsel. In the case named, a party was
allowed to prove an occupation of land by one person under another
without producing the lease ; but there the fact of tenancy was all
that was sought to be proved, and the terms of the lease, or whether
any written lease existed, was unimportant. The other cases cited
in the same connection are similar. But here the terms of the con-
tract are of vital importance, because a compliance with them, or
something accepted as equivalent, is essential to establish the title.
And we cannot say that any thing has been accepted for some
Sec. 2) other facts 07!)
thing else, or any thing waived, until we know what there was in
the contract in respect to which there might be substitution or waiv-
er. * * *
Judgment reversed. 37
PACIFIC EXPRESS CO. v. DUNN.
(Supreme Court of Texas, 1891. 31 Tex. 85, 16 S. W. 792.)
Stayton, C. J. Appellee brought this action to recover damages
for the destruction of a house and property therein by fire, which he
alleges resulted from the negligence of an employe of appellant while
engaged in the course of his employment in its business. In the course
of the trial, appellee was permitted to prove his ownership of the house
by his own testimony, and it is urged that such evidence was not ad-
missible for that purpose. This evidence was to the effect that he
owned the house and lot on which it stood, and was in possession of it
at the time and before it was destroyed ; that he built the house some
four years before it was burned, on another lot, from which he remov-
ed it to the lot on which it stood, about three years before it was de-
stroyed; that two rooms in the house were occupied by his tenants,
two vacant, and another occupied by himself as an office.
It was contended that appellee could not thus show his ownership,
and that it was incumbent on him to show title by written muniment ;
or to show that he held the exclusive possession. The possession
shown was certainly exclusive, within the meaning of the law, for
the possession of his tenants was his possession, and no part of the
premises was occupied by any person other than himself and his
tenants. We do not understand that, in actions of this character, it is
incumbent on a plaintiff to deraign title through writings from the
sovereignty of the soil, or in some of the other methods in which title
is acquired, but understand that an exclusive and peaceable possession
of land furnishes prima facie evidence of ownership, which, if not
rebutted, is sufficient to maintain such an action as this, or even eject-
ment or trespass to try title against a trespasser or mere intruder.
Linard v. Crossland. 10 Tex. 462, 60 Am. Dec. 213; Lea v. Hernan-
dez, 10 Tex. 137; Wilson v. Palmer, 18 Tex. 595; Yates v. Yates,
76 N. C. 142; Smith v. Lorillard, 10 Johns. (N. Y.) 339; Bledsoe v.
Simms, 53 Mo. 305; Keith v. Keith, 104 111. 397; Barger v. Hobbs,
67 111. 592; Sedg. & W. Tr. Title Land. 717, and cases cited.
The question which brought out the evidence as to possession may
have been leading, and the broad assertion of ownership may have
been but the assertion of an opinion, but these matters furnish no rea-
37 compare Johnson v. Carlin, 121 Minn. L76, l'l N. W. -1. Ann. Cas. L914C.
705 (1913), to the effect that, in an ad inn against a tenant whose lease might
he terminated* in case of a sale of the premises, the tact of a sale might be
proved without producing the contract of sale.
080 THE BEST EVIDENCE (Ch. 6
son for reversal, in view of the evidence of right furnished by the
possession proved. There is no other question in the case, and the
judgment must be affirmed. 38 '
SECTION 3.— DEGREES OF SECONDARY EVIDENCE
HILTS v. CALVIN.
(Supreme Court of New York, 1S17. 14 Johns. 182.)
Spencer, J., 39 delivered the opinion of the court. The plaintiff be-
low offered one John G. Hilts as a witness. He was objected to on
the ground of his incompetency, arising from his alleged conviction of
the crime of grand larceny.
It was proved that there were no papers or records in the clerk's
office of Herkimer, prior to May, 1804, and that in April, of that year,
the clerk's office had been burnt down, and most or all of the papers
had been consumed. It was offered to be proved that the witness,
Hilts, had been convicted, previous to 1804. for harbouring stolen
goods, and sentenced to the state prison : which proof was objected
to, but admitted by the court, and made out by parol ; and the witness
being excluded, the plaintiff was nonsuited for want of proof to sus-
tain his action.
It is insisted, that there was higher and better proof of Hilts' con-
viction, and that he ought not to have been excluded: 1. The copy
of the sentence required to be given by the clerk of the court to the
sheriff, who is required to deliver the same to the keeper of the state
prison, with the prisoner. 1 R. L. 415. K. & R. sess. 24, ch. 121, s. 5.
2. The certificate required by the second section of the act relative
to district attorneys to be sent to the court of exchequer, there to re-
main of record, containing the tenor and effect of every conviction, the
name of the person and addition, the offence, the day and place of the
conviction, and before whom it was had, and the judgment given there-
on; a copy of which, under the hand of the clerk and the seal of the
exchequer, is declared to be good evidence of such former conviction.
1 R. L. 462. K. & R. sess. 24, ch. 146, s. 2.
Whatever may be thought of the first objection, the second is de-
cisive. It is always to be presumed that a public officer has done his
duty, and this presumption stands until it is disproved. We must
then intend that there was, in the court of exchequer, the transcript
pointed out by the statute; and it follows that there was higher proof
in the power of the party than that given at the trial below. This court,
bs See same rule In Mathews v. Livingston, SG Conn. 263, So Atl. 529, Ann.
I as. I'.'i LA, L95 (1912).
so Statemenl omit ted.
I
Sec. 3) DEGREES OF SECONDARY EVIDENCE 981
in the case of the People v. Herrick, 13 Johns. 82, 7 Am. Dec. 364, de-
cided, that a party who would take exception to a witness on the ground
of his conviction of the crimen falsi, must have a copy of the record of
conviction ready to produce in court. The judgment below must be
reversed.
Judgment reversed.
WINN et al. v. PATTERSON.
(Supreme Court of the United States, 1S35. 9 Pet. 663, 9 L. Ed. 266.)
Story, J. 40 This is a writ of error to the circuit court of the dis-
trict of Georgia. The cause, which is an ejectment, has been twice be-
fore this court, and the decisions then had, will be found reported in
11 Wheat. 3S0, 6 L. Ed. 500, and 5 Pet. 233, 8 L. Ed. 108, to which
we may therefore refer, as containing a statement of many of the ma-
terial facts.
At the new trial had in November term, 1833, in pursuance of the
mandate of this court, the plaintiff, to maintain the issue on his part,
gave in evidence a copy of a grant from the State of Georgia to Basil
Jones, for 7,300 acres, including the lands in controversy, dated the
24th of May, 1787, with a plat of survey thereto annexed. He then
offered a copy of a power of attorney from Basil Jones to Thomas
Smyth, Jr.. purporting to be dated the 6th of August, 1793, and to
authorize Smyth, among other things, to sell and convey the tract of
7,300 acres, so granted, which power purported to be signed and sealed
in the presence of "Abram Jones, J. P., and Thomas Harwood, Jr. ;"
and the copy was certified to be a true copy from the records of Rich-
mond county, Georgia, and recorded therein, on the 11th day of July,
1795. And to account for the loss of the original power of attorney,
of which the copy was offered, and of the use of due diligence and
search to find the same, the plaintiff read the affidavit of William Pat-
terson, the lessor of the plaintiff, which in substance stated that he had
not in his possession, power, or custody, the original grant, and that
he verily believed the original power of attorney and grant have been
lost or destroyed. * * *
The remaining question then, is, whether the copy now produced
was proper secondary proof, entitled by law to be admitted in evidence.
The argument is, that it is a copy of a copy, and so not admissible;
and that the original record might have been produced in evidence.
By the laws of Georgia, act of 1785, deeds of bargain and sale of lands
are required to be recorded in the county where the lands lie ; Prince's
Dig. 112. Powers of attorney to convey lands, are not required by
law to be recorded in the same county, though there seems to be a
<o Part of opinion omitted.
9S2 THE BEST EVIDENCE (Ch. G
common practice so to do. The act of 1785 provides that all bonds,
specialties, letters of attorney, and powers in writing, the execution
whereof shall be proved by one or more of the witnesses thereto, be-
fore certain magistrates of either of the United States, where the same
were executed, and duly certified in the manner stated in the act, shall
be sufficient evidence to the court and jury of the due execution there-
of; Prince's Dig. 113. The present power was not recorded in the
county of Franklin, where the lands lie, but in Richmond county; and,
therefore, a copy from the record is not strictly admissible in evidence,
as it would have been if powers of attorney were by law to be recorded
in the county where the lands lie, and the present power had been so
duly recorded. It is certainly a common practice to produce, in the
custody of the clerk, under a subpoena duces tecum, the original rec-
ords of deeds duly recorded. But in point of law a copy from such
record is admissible in evidence, upon the ground stated in Lynch
v. Clark, 3 Salk. 154; that where an original document of a public
nature would be evidence if produced, an immediate sworn copy there-
of is admissible in evidence; for as all persons have a right to the
evidence which documents of a public nature afford, they might other-
wise be required to be exhibited at different places at the same time.
See Mr. Leach's note to 11 Mod. Rep. 134; Birt v. Barlow, 1 Doug.
171 ; 1 Starkie on Evidence, §§ 36, 37. If, therefore, the record itself
would be evidence of a recorded deed, a duly attested copy thereof
would also be evidence. The present copy does not, however, (as is
admitted,) fall within the reach of this rule. But the question does
arise, whether the defendant can insist upon the production of the rec-
ord books of the county of Richmond, in court, in this case ; as higher
and more authentic evidence of the power of attorney not properly re-
corded there, to the exclusion of any other copy duly established in
proof. We think he cannot. It is not required by any rule of evidence
with which we are acquainted.
We admit that the rule, that a copy of a copy is not admissible evi-
dence, is correct in itself, when properly understood and limited to
its true sense. The rule properly applies to cases where the copy
is taken from a copy, the original being still in existence and capable
of being compared with it; for then it is a second remove from
the original ; or where it is a copy of a copy of a record, the record
being in existence by law deemed as high evidence as the original ;
for then it is also a second remove from the record. But it is quite
a different question whether it applies to cases of secondary evidence
where the original is lost, or the record of it is not in law deemed as
high evidence as the original ; or, where the copy of a copy is the
highest proof in existence. On these points we give no opinion, be-
cause this is not, in our judgment, the case of a mere copy of a copy
verified as such; but it is the case of a second copy verified as a true
py of the original. Mr, Robertson expressly asserts that the record
Sec. 3) DEGREES OF SECONDARY EVIDENCE 983
was a copy of the original power made by himself, and that the pres-
ent copy is a true copy which has been compared by himself with tlv*
record. In effect, therefore, he swears that both are true copies of the
original power. In point of evidence, then, the case stands precisely
in the same predicament as if the witness had made two copies at the
same time of the original, and had then compared one of them with the
original, and the other with the first copy, which he had found cor-
rect. The mode by which he had arrived at the result, that the second
is a true copy of the original, may be more circuitous than that by
which he has ascertained the first to be correct ; but that only furnish-
es matter of observation as to the strength of the proof, and not. as
to its dignity or degree. In each case his testimony amounts to the
same result, as a matter of personal knowledge, that each is a true
copy of the original. We are, therefore, of opinion, that there was no
error in the court in admitting the copy in evidence under these cir-
cumstances. * * *
Judgment affirmed.
HARVEY et ux. v. THORPE.
4
(Supreme Court of Alabama, 1S56. 28 Ala. 250, 65 Am. Dec. 344.)
This was an action to recover a tract of land. A deed material to
the defense had been lost. Defendant was permitted to introduce parol
evidence to the effect that a mistake had been made in recording the
deed so that the number of feet appearing in the deed register differ-
ed from the original. 41
GoldtiiwaitE, C. J. * * * As to the principal question in the
case — the admission of parol evidence to contradict the transcript of
the deed certified by the clerk : The English cases certainly lay down
the rule very broadly, that there are no degrees in secondary evidence
(Rowlandson v. Wainright, 1 Nev. & Per. 8; Coyle v. Cole, 6 Car.
& P. 81 ; Rex v. Hunt, 3 B. & Aid. 506; Brown v. Woodman, 6 Car.
& P. 206) ; while, on the contrary, the current of American authorities
goes very strongly to show that, although the facts may warrant tne
admission of secondary evidence, the best kind of that character of
evidence which appears to be in the power of the party to produce,
must be offered. United States v. Britton, 2 Mason, 464 [Fed. I
No. 14,650] ; Kello v. Maget, 18 N. C. 414; Renner v. Bank of Co
lumbia, 9 Wheat. 582-597 [6 L. Ed. 166] ; Popino v. McAllister, 7
N. I. Law, 46-53; Blade v. Noland, 12 Wend. 173 [27 Am. Dec.
126] . We confess that the American rule appears to us more rea-
sonable than the English; and we see great propriety, if there was
*i The statement has been condensed and part of opinion omitted.
984 THE BEST EVIDENCE (Cll. 6
an examined copy of an instrument in the possession of a party, in
refusing to allow him to prove it by the uncertain memory of wit-
nesses. A copy of a letter, taken by a copying press, would unques-
tionably be better evidence of the original that the recollection of its
contents by a witness; and the same reasons which would require
the production of the original, if in the control of the party, would
operate in favor of the production of the fac-simile, or of the exam-
ined copy. But, in all these cases, the strength of the proposition con-
sists in the fact, that there is secondary evidence, in its nature and char-
acter better than that which the party offers, and that it is in his power
to* produce it. He certainly must be allowed to show, that what appears
to be secondary evidence of a higher degree is not so in fact. In other
words, he would be allowed to show that the paper, which purported
to be a copy, was not in fact and in truth one.
To apply these principles to the case under consideration, the ques-
tion is, whether the defendants below were concluded by the record of
the conveyance in the office of the clerk of the county court. We
should think it very unreasonable, that because the law authorized the
conveyance to be recorded, that record should, in case of the loss or
destruction of the original, be conclusive even on the parties to the
deed. It would be more unreasonable still to give this effect to it
against a stranger. That the legislature has the power to do so, is
not denied ; but we should require the use of the clearest and most
unequivocal words to force us to such a conclusion.
The act of 1803 requires the clerk of the county court to record all
conveyances of land lying in his county, duly certified and acknowl-
edged, which are delivered to him for that purpose (Clay's Digest,
154—155); and the thirteenth section provides, that, in case of the loss
or destruction of the original deed, the record, or a duly certified tran-
script, shall be received in evidence, "and be as good and effectual and
available in law as if the original deed or conveyance had been pro-
duced and proved." In giving to the record the same degree of force
that the original deed would have had, it was doubtless presumed that
the clerk would make a true copy, "word for word," as another section
of the act requires him to do ; and we think it was only the record
when thus made that it was intended to invest with unimpeachable ver-
ity. In other words, to make it a record, it must be a copy. Even
judicial records, made under the sanction of judicial officers, and in
themselves originals, have not always been held conclusive as to juris-
dictional facts. Here the act contemplates nothing but a copy: and
it is to this copy, when made by the clerk, that it was the intention of
the law to accord unimpeachable verity. It is prima facie evidence, on
the ground that all officers must be presumed to have discharged the
duties which the law requires of them; and the statute also dispenses
with any further proof of ihe execution than the production of the
ord or the transi ript. But we are satisfied that it could never have
Sec. 3) DEGREES OF SECONDARY EVIDENCE 985
been intended to make the record as effectual as the original, unl
it was a true copy ; and we must, therefore, hold that it is not con-
clusive. * * *
Judgment affirmed. 42
ESLOW et al. v. MITCHELL.
(Supreme Court of Michigan, 1S73. 26 Midi. BOO.)
Campbell, J. 43 The plaintiffs in error, who were defendants be-
low, held a chattel mortgage on certain articles used in a billiard sa-
loon, given by one George W. Closson, in January, 1870, and falling
due March 15, 1870. They were in possession of the chattels from
a time not long after the date of the mortgage. There was evidence
tending to show a sale and conveyance of the goods by the mortgagees,
to one Teachout, in February, 1870, before the mortgage matured.
Some time before its maturity, Closson empowered one Lane as his
agent, to pay the mortgage and get the property back, and dispose of
it. Lane tendered the amount, on the day it became due, and the
mortgagees did not accept the money, nor return the goods. Lane then
sold the property to Mitchell, who made demand, and on refusal
brought trover.
The principal questions arise upon the effect of the tender, and
of the sale to Teachout, and upon the validity of the transfer to
Mitchell. Some further questions also arose on the trial, upon rul-
ings on evidence.
To prove the power of attorney to Lane, evidence of its loss v
given, and it was then made out by secondary evidence. Lane was
allowed to show its contents from memory, and this was objected to
on two grounds: first, because there was better evidence in the form
of a copy, in the hands of Mitchell's counsel ; and, second, because
there was a subscribing witness who should have been sworn.
The supposed copy did not appear to have been compared by Lane,
so that he could have identified it, and there is no rule of law that re-
quires secondary evidence to be of one kind rather than another,
where the writing is a private writing, and no counterpart is legally
presumed or required to exist. If the evidence produced does not
clearly show the tenor of the document, of course it fails; and if
parties willfully keep back evidence in their possession, which might
clear up a doubtful point, their conduct will have a tendency to injure
their case. But there is no doubt private papers may be made out by
42 And so in Wetmore State Bank v. Courter, 1)7 Kan. lis, 158 Pac, 27
Compare Ming v. Olster. 195 Mo. 460, '.'•_' S. W. s;.s (1906), where a copy
from the deed record was used to prove an alteration in the original.
•13 Statement and part of opinion omitted.
986 THE BEST EVIDENCE (Ch. 6
parol secondary evidence, and the objection to it, if there be any, is
one of weight and not of competency. And in this case, for anything
appearing, it may have been the best attainable, and the most satis-
factory. * * *
Judgment affirmed. 44
♦ 4 And so in People v. Christian, 144 Mich. 247, 107 N. W. 919 (1906), where
it was held that the defendant should have been permitted to testify to the
contents of a lost letter from a public officer, though it was admitted that
an office copy was in existence from which a certified copy could have been
obtained.
See, also, Rosenbaum v. Podolsky, 97 Misc. Rep. 614, 162 N. Y. Supp. 227
(1916), where it was held that since the original contract was unavailable,
because on file in a foreign court, the party was entitled to prove the contents
by parol, though he could have obtained a copy from his own office in another
state, the court observing: " * * * Although the argument is plausible,
it is apparent on a moment's reflection that proof of an instrument by proving
a copy is merely one form of parol testimony as to its contents; and I am
not aware of any rule of law that makes a distinction of grade in secondary
evidence. Its probative force will of course vary according to the quality of
the proof, but if parol testimony is permissible it is competent ; its character
may be such as the party elects or finds possible, assuming of course always
that it meets the other requirements relating to evidence generally. The same
rule applies to primary evidence. Seidenspinner v. Metropolitan Life Ins.
Co., 175 N. Y. 95, 98 [67 N. E. 123 (1903)] ; People v. Gonzalez, 35 N. Y. 49, 61
[1S66]."
Where a copy is preferred, it must appear that one is in existence and
available in order to exclude oral testimony. Universal Oil & Fertilizer Co.
v. Burney, 174 K C. 382, 93 S. E. 912 (1917).
Sec. 1) the "parol evidence" rule 987
CHAPTER VII
THE "PAROL EVIDENCE" RULE »
SECTION 1.— EVIDENCE TO VARY, CONTRADICT, OR
AVOID CERTAIN WRITTEN INSTRUMENTS
KAINES v. KNIGHTLY.
(Court of King's Bench, 1683. Skin. 54.)
The case upon evidence was, a policy of assurance was drawn from
Archangel to Legorn, and assumpsit being brought upon it, the defend-
ant said, that the agreement before the subscription was, that the
adventure should begin, but from the Downs ; but this agreement was
not put into writing. This policy is but a mere parol agreement, and
so may be altered or discharged by agreement by parol ; but without
it be put in writing, it shall be taken that the policy speaks the minds
of the parties ; for policies are things well known, and go as far as
trade goes; and to suffer them to be defeated by agreements not
appearing, is to lessen their credit, and to make them of no value,
which yet are countenanced by two several Acts of Parliament. That
the party may as well say, he is to have ten guineas premium, though
the policy says but three ; as to say he assured but from such a place,
scil. The Downs, when the policy says it was from Archangel. The
custom of merchants ought to be proved by those that have had fre-
quent experience, and have known cases so ruled. 'Twas allowed,
that if a ship was laden at Aleppo, and come to Messina, that she may
be insured ; the adventure is to begin from Messina ; but thou it must
be so express'd, nay it need not be express'd that she was laden at
Aleppo, (though the opinion of some merchants was so) as Pember-
ton, Chief Justice, said ; but if the insurance was of goods laden at
Aleppo, and they were indeed laden at Messina, it might make a
difference. Pemberton said, that policies were sacred things, and that
a merchant should no more be allowed to go from what he had sub-
scribed in them, than he that subscribes a bill of exchange, payable
at such a day, shall be allowed to go from it, and say it was agreed to
be upon a condition <xc. when it may be that the bill had been nego-
tiated; for though neither of them are specialties, yet they are of great
i The cases under this topic have been selected primarily for the pur;
of bringing out the real nature of the rule or rules Involved, and it is t ■
that this will also show why the subject COUld l>e dealt with more sat;
torily, if distributed to more appropriate courses, — Ed,
988 the "parol evidence" rule (Ch. 7
credit, and much for the support, conveniency, and advantage of trade ;
and the jury found contrary to the direction of the Court: and after-
wards in Mich, term, there was another trial at Bar, and a verdict
according to direction for the 'plaintiff. Afterwards an action upon the
case was brought, for telling him that the ship was in the Downs, when
in truth she was not, &c.
PRESTON v. MERCEAU.
(Court of Common Pleas, 1779. 2 Wm. Bl. 1249.)
Action on the case for the use and occupation of a house, of which,
on the 21st of July, 1775, it was agreed in writing "that a lease should
be let by Christiana Preston to Abraham Gamage for twenty-one years
at £26. per annum, to commence from Michaelmas then next." Gam-
age died and made Merceau his executor, who paid £26. into Court
for one year's rent. On the trial the plaintiff offered to shew, by
parol evidence, that besides the £26. per annum, the defendant had
agreed to pay £2. 12 s. 6d. a year, being the ground rent of the prem-
ises, to the ground landlord ; but no evidence was offered of the
actual payment of such ground rent during the testator's life, without
which, De Grey, C. J., thought such parol evidence inadmissible^ and
nonsuited the plaintiff. And now Davy and Grose moved to set aside
this nonsuit, alleging that this was evidence not to alter, or vary, but
to explain the [agreement]. That this was not a solemn deed or
will, but a mere executory act; and had a bill in Chancery been
brought to carry this into execution, parol evidence would have been
admitted to prove the agreement to pay the ground rent. For in
Joynes and Statham, the 29th of October, 1746, 3 Atk. 388, parol evi-
dence was admitted to shew, that an agreement for a lease at £9. a
year was to be clear of taxes.
But by Blackstoxe, J., (absente Gould, J.) I am clearly of opin-
ion that Lord Chief Justice did right in rejecting this evidence.
Courts should be very cautious in admitting any evidence to supply
or explain written agreements. Else the Statute of Frauds would be
eluded, and the same uncertainty introduced by suppletory or ex-
planatory evidence, which that statute has suppressed in respect to
the principal object. It never ought to be suffered, so as to contradict
or explain away an explicit agreement, for that is in effect to vary it.
Here is a positive agreement that the tenant shall pay £26. Shall we
admit proof that this means £28. 12s. 6d. ? What is it to the tenant by
whom the rent is to be paid, so as he is obliged to pay more than hi
contract expresses? We can neither alter the rent nor the term, the
two things expressed in this agreement. \\ ith respect to collateral
matters it plight be otherwise. He might shew who is to put the
hou e in repair, or the like, concerning which nothing is said; but he
cannot by parol evidence shorten the term to fourteen or extend it to
SeC. 1) CONTRADICTING INSTRUMENTS 9S0
twenty-five years, or make the rent other than £26. per annum. The
case in Atkins is of a mere executory act, in which the master was to
settle the proper covenants, and therefore had a right to inquire who
was to pay the taxes. Besides, there were strong suggestions of fraud
in making the written agreement, as one party could neither read nor
write.
Nares, J., of the same opinion. Great caution should" be used in
admitting explanatory evidence, especially in a case of a specific rent.
This is an instrument in writing, and would have nonsuited the plain-
tiff before the statute of 11 Geo. 2, c. 19, sect. 14.
Rule discharged.
RICH v. JACKSON.
(Court of Chancery, 1794. 4 Brown, Ch. Rep. 514.)
The bill stated, that William Stiles, since deceased, being possessed
of certain premises in Fleet Street, in 1791, William Jackson, the
defendant's late husband, entered into a treaty with him for the lease
thereof, and, in a 'conversation between them on the subject, offered
him eighty guineas a year for the same, and that he, William Jackson,
would pay all the taxes thereon, which Stiles agreed to accept.
That Stiles being then in a bad state of health at Tooting, Jackson,
in September, in that year, went thither, and it having been mentioned
by Stiles and Jackson, in the presence of witnesses, that Stiles was
to receive eighty guineas a year for the premises, clear of all taxes,
Jackson drew up a memorandum in his own handwriting, in which
(after the usual introductory words) were the following: "Mr. Wil-
liam Stiles doth agree to let and grant a lease for twenty-one years,
to be reckoned from Michaelmas, 1791, of (the premises) on the afore-
said William Jackson's paying to the aforesaid William Stiles £S4.
per annum, as follows (that is to say), £21. for every quarter: and the
said William Jackson doth agree to pay the said William Stiles, his
heirs, executors, and administrators, the aforesaid sum of £84. per an-
num, to be paid quarterly as aforesaid ;" which agreement was signed
by Stiles and Jackson, and attested by Nathaniel Seager, who w.
witness in the cause. That before any rent became due, Jackson wrote
to Stile's attorney, in order that a proper lease might be prepare.
the premises, but the same was omitted to be done, and upon the
of November following, and before any lease was prepared, Stiles died,
having made his will, whereby he gave the premises (int. al.) to Mr.
Thomas Whitehead, who in February, 1792, agreed with the plain-
tiff for the purchase thereof, and the same were properly conveyed to
the plaintiff.
That the plaintiff was, at the time of the conveyance to him, ac-
quainted with the verbal and written agreement between Stiles and
Jackson.
990 the "parol evidence" rule (Ch. 7
That Whitehead having given notice to Jackson, that the future
rents would be payable to the plaintiffs, he obtained from Jackson a
copy of the written agreement, from whence the plaintiff's attorney
prepared a lease, containing the usual covenants, with a reservation
of rent, at £84. a year, clear of all taxes whatever, which was sent to
Jackson.
It appeared by the answer, that Jackson refused this lease, and
caused a lease to be drawn on the terms of paying £84. per annum,
without the words "clear of taxes," which was also refused by the
plaintiffs.
It was stated in the bill, and admitted by the answer, that, about
the 29th May, Jackson died intestate, and that the defendants had
administered to him.
The plaintiff stated by his bill, but it was neither admitted nor de-
nied by the answer, that the plaintiff had tendered to the defendant
the lease, with the reservation of a clear rent, which she had refused ;
on which account the bill prayed a specific performance of the verbal
agreement, and that a lease might be prepared and executed, reserv-
ing a rent of £84. clear of all taxes, and an injunction to restrain the
under mentioned articles.
The defendant by her answer said, she was not present at any of the
conversations, but that she had frequently heard William Jackson in
his lifetime say, that it never was understood that he should pay the
land tax, that it was not an hasty transaction, but that the agreement
was left with Stiles for a day of two for his perusal, and that he had
returned it with a note, with an immaterial addition, which was made
to it. And that she did not believe that Stiles would have raised such
dispute had Jackson survived.
The answer then stated (which had also been mentioned in the bill),
that the defendant having paid £16. 8d. for land tax, brought an action
in the Court of Common Pleas for the recovery thereof, the plaintiff
having refused to deduct the same in the payment of the rent; and
the cause being tried at Guildhall, before the present Lord Chancellor,
then Lord Chief Justice of the Common Pleas, the defendant offered
parol evidence in his defence, in contradiction to the written agree-
ment, but his Lordship was pleased to reject such evidence, and direct-
ed a verdict to be given for the defendant (then plaintiff) for £16. 8d.
with costs, with liberty to the plaintiff (defendant at law) to move the
Court to impeach the same, if he should be so advised; and that, up-
on an application of the plaintiff to the Court of Common Pleas, the
Court approved the verdict, and refused a rule to show cause why the
suae should not be set aside.
The common injunction had been granted in this cause, and, upon a
motion to discharge the same, Lord Chancellor refused so to do, and
said he would permil the can e to go on to another hearing.
And the cause now coming on to !><■ heard,
Mr. Mansfield, and Mr. Abbot, for the plaintiff, contended that the
SeC. 1) CONTRADICTING INSTRUMENTS 991
plaintiffs had a right to be relieved, upon proving the parol agreement,
unless there was any rule in this Court to prevent the reading parol
evidence, to show what was the intention of the parties.
This day, February 2Cth, Lord ChanceXlor 2 gave judgment to the
following effect:
From the evidence, believing the witnesses to speak truth, it is im-
possible to mistake the meaning of the parties to be exactly what Mr.
Mansfield has stated, that the rent to be paid was meant to be a clear
rent ; but the parties had concluded the matter by a written agree-
ment, which was, that a lease should be granted for twenty-one years,
at a rent of eighty guineas a year, and the tenant paying his twenty
guineas a quarter, including in it his land-tax receipt. It can only be
according to the sense the law puts upon it.
The party died before the payment of any rent, so that the whole
matter remains upon the agreement.
The Court of Common Pleas rejected the parol evidence very prop-
erly.
I am satisfied that there is no difference in the case in equity, where
the party only comes for a more formal execution of the agreement.
1 looked into all the cases : I cannot find that the Court has ever
taken upon itself, to add to the form of the agreement; that in re-
peated instances the Court has refused to do so, though it has been
insisted, that the parol evidence of the adverse party has shown the
written agreement to be against conscience.
Joynes v. Statham (6 Ves. 335, note) was a case of that sort ; the
parol evidence, on the part of the defendant, showed the plaintiff hac
taken an unfair advantage, and it was his (defendant's) understanding
that he was to receive a clear rent. Lord Hardwicke admitted the
evidence to be read, to rebut the equity. Mr. Atkyns's note is ver>
long; I looked at Lord Hardwicke's own note, which is very short
He mentions Walker v. Walker, as cited, and very little of the arg^
ment or evidence. It then says, "Decree a specific performance on
the terms of the answer, the plaintiff submitting to this rather than to
have his bill dismissed." His intention was therefore to dismiss the
bill, but he gave the plaintiff this option. Walker v. Walker (6 Ves.
335, note) proceeded exactly on the same ground, where the second
surrender was to be the consideration of the first. The cases cited
were those in Vernon, where the act promised to be done on one part,
raises the consideration, without which the party would not have done
that which he did. The objection was taken, that it was to add to
an agreement; Lord Hardwicke said no, it was to rebut an equity.
Legal v. Miller is a little different in circumstances from this, but pro-
ceeds on the same ground: Pitcairne v. Ogbourne is not like this;
the objection there ought to have been to the relevancy, not the com-
petency, of the evidence. It was evidence of a private and fraudulent
2 Lord Loughborough.
092 the "parol evidence" rule (Ch. 7
agreement, and the bill dismissed on that ground. In Baker v. Payne,
the evidence was very properly admitted, and the agreement was cor-
rected by original minutes, through the medium of parol evidence, of
the custom of the trade. In Filmer v. Gott, the evidence was not to
contradict the deed, but to show the deed was obtained by fraud. The
King v. Scammonden was properly determined. Brodie v. St. Paul
is but slightly mentioned in the report. These are the cases. The
hardness of the case, under special circumstances, may induce the
Court to refuse decreeing a performance, or to leave it to the plain-
tiff's remedy at law ; but it is quite impossible to admit the rule of
law to be broke in upon; and that requires, that nothing should be
added to the written agreement, unless in cases where there is a clear
subsequent and independent agreement, varying the former, but not
where it is of matter passing at the same time with the written agree-
ment. 3 The evidence offered here, which I permitted to be read, but
which I ought not to have admitted, is all of matter passing at the
same time with the written agreement, therefore I must dismiss the
bill, but I will do so without costs. 4
KEATING v. PRICE.
(Supreme Court of New York, 1799. 1 Johns. Cas. 22, 1 Am. Dec. 92.)
This was an action on the case founded on a special agreement.
The plea was the general issue, with a notice from the defendant,
that he would insist on some special matters in his defence, which,
with reference to the point decided by the court, it will be unneces-
sary to state.
On the trial before Lansing, chief justice, at the last Rensselaer
circuit, the plaintiff proved a written agreement, as set forth in the
declaration, by which the defendant promised to deliver to the plain-
tiff, at the city of Albany, fifty thousand pipe staves, at a stipulated
price, on or before the 1st day of May, 1796.
On the part of the defendant, it was, among other things, proved,
by one R. Wait, that in the month of January, 1797, he had a con-
b Compare Lord Hardwlcke in Henkle v. Royal Assurance Co., 1 Yes. Sr.
:',17 (1749): "No doubt, bul this court has jurisdiction to relieve in respect <>:'
a plain mistake in eon tract a in writing as well as against frauds in contra*
that If reduced into writing contrary to Intent of the parties, on proper
proof thai would he rectified. Bul the plaintiff COmeS to do tins in the liar
est case that can happen: of a policy, after the event and loss happened, to
vary the contract so as to turn the Loss on the Insurer, who otherwise, ii
admitted, < : 1 1 1 1 1« 1 1 he charged: however, if the case is so strong as to require
ii, the court ought to do it."
* The Btudent is referred to the proper course in equity for the various
rui o ernin the reformation of contracts and conveyances.
a large number of the English cases has been collected in a note by the re-
porter to t he principal ce
Sec. 1) CONTRADICTING INSTRUMENTS 90!)
versation with the plaintiff, who informed him, that he, the plain-
tiff, had made the contract with the defendant for ihe delivery of the
staves, as above mentioned, but that he had agreed to extend the
time for delivering them until the next spring.
A verdict was taken for the plaintiff by consent, subject to the
opinion of this court on several points, and among others, whether
the time for performing the contract could be extended, by a sub-
sequent agreement between the parties, and whether Wait's testi-
mony could be received, to prove the declaration of the plaintiff to
that effect. If so, it was agreed that a nonsuit should be entered.
Per Curiam. This being, originally, a simple contract, we are of
opinion, that it was competent for the parties, by parol agreement,
to enlarge the time of performing it, and that Wait's testimony, to
prove the plaintiff's declaration to that effect, was properly received.
An extension of the time may often be essential to the perform-
ance of executory contracts, and there can be no reason why a sub-
sequent agreement for that purpose, should not be valid. Let a non-
suit be accordingly entered.
Judgment of nonsuit. 6
KAIN v. OLD et al.
(Court of King's Bench, 1S24. 2 Barn. & C. 027.)
Assumpsit for a breach of warranty in the sale of a ship. The jury
returned a verdict for plaintiff, subject to the opinion of the Court on
a case stated which sufficiently appears in the opinion. 6
Abbott, C. J., now delivered the judgment of the Court.
This is an action of assumpsit, brought for the recovery of damages
for the breach of an alleged contract. The declaration alleges that, in
b Accord: Goss v. Lord Nugent, 5 B. & Ad. 58 (1833); Emerson v. slater.
22 How. 41, 1G L. Ed. 360 (1859); Harris v. Murphy, Jenkins & Co., 119 N. < '.
31. 25 S. E. 708, 56 Am. St. Rep. 656 (1S06).
Just how far this rule may be affected by the statute of frauds is not cn-
tirely free from doubt. In case of contracts within the statute of frauds it
s to be agreed that, if a modified performance is agreed on and carried
out, this may be shown as a defense to an action on the original contract, "r
as an excuse for failure to perform strictly, and also that, if the plaintiff
refrains from strict performance at the request of defendant, e. ■-.. delivery
delayed to accommodate tin- defendant, he may still recover upon making a
tender within a reasonable time. Cuff v. 1'enn. 1 M. & S. 21 (1813) ; Hickman
v. Haynes, L. R. 10 C. P. 598 (1875).
Bui it also nppoars that an executory oral agreement, attempting to modify
a written contract within the statute of frauds, will m>t enable the plaintiff to
recover on the modified contract. <;<>ss v. Lord Nugent, 5 B. A: Ad. 58 (1833);
Warren v. A. B. Mayer Mfg. Co., 161 Mo. 1112. CI S. W. 844 (1901).
Such problems, however, do not appear to involve any problem peculiar t*
the law of evidence, but depend rather on the proper construction of the Btat
ute of frauds. — Ed.
« Statement condensed.
IIint.Ev.— 63
994 the "parol evidence" rule (Ch. "
consideration that the plaintiff would buy of the defendant's testator
a certain ship at a price mentioned, the testator promised that the
ship was copper bolted ; that relying on that promise, the plaintiff
bought the ship and paid the price; that he afterwards sold the ship
to one Shepherd, and on that sale warranted the ship to be copper
fastened ; that the ship was not copper bolted ; that Shepherd brought
an action against him on his warranty, and recovered damages and
costs. At the trial before me it was found, that the defendant's tes-
tator being sole owner of the ship, signed and delivered to the plain-
tiff an instrument describing the ship as copper bolted, and containing
an inventory of stores; at the foot of which was written, "Sold the
within mentioned ship to Messrs. Kain and Son, W. Dodds." And
it was further found that the testator received the sum of £1650, and
executed a bill of sale of the ship to Kain. That bill of sale was in
the usual form, and contained a recital of the certificate of registry,
but it did not describe the vessel as copper bolted. It was further
found that Kain resold the ship to Shepherd, according to printed
particulars similar to those before mentioned, and executed to him
a bill of sale similar to that which was executed by the testator ; that
Shepherd brought an action on the case against him on his warranty,
that the ship was copper fastened, and recovered.
Upon this case the question is, whether the plaintiff has proved
a promise according to his declaration. We think he has not. The
first instrument which contains a description of the ship as copper
bolted, and an inventory of her furniture, and concludes with the
words, "Sold the within-mentioned ship to Messrs. Kain and Son,
W. Dodds" cannot in our opinion be regarded as an instrument of
contract. It is invalid either as a conveyance or as an agreement to
convey the ship, by the register acts, because it does not contain a
recital of the certificate of registry, Biddell v. Leader, 1 B. & C.
327. And it is imperfect as an instrument of contract, because it does
not mention the price, and this defect is not supplied by any fact ap-
pearing in the case; for there is no mention of any price as agreed
between the parties before or at the time when Dodds the testator
delivered the paper to the plaintiff: and the bill of sale mentions the
sum of £1650. as the consideration of the sale, but does not mention
any prior contract or agreement. We do not, however, rely on this
imperfection, the objection arising out of the register act being de-
cisive as to the invalidity of the paper. The bill of sale then is the only
instrument of contract, and this does not describe the ship as copper
bolted ; though it contains covenants for the title and for further
assurance. The description of copper bolted in the paper can there-
fore be considered as a representation only, and not as any part of
the contract. The contract is in writing, as every contract for the sale
of a ship must be.
Where the whole matter passes in parol, all that passes may some-
times be taken together as forming parcel of the contract, though not
Sec. 1) CONTRADICTING INSTRUMENTS 995
always, because matter talked of at the commencement of a bargain
may be excluded by the language used at its termination. But if the
contract be in the end reduced into writing, nothing which is not
found in the writing can be considered as a part of the contract. A
matter antecedent to and dehors the writing, may in some cases be
received in evidence, as showing the inducements to the contract ;
such as a representation of some particular quality or incident to the
thing sold. But the buyer is not at liberty to show such a representa-
tion, unless he can also show that the seller by some fraud prevented
him from discovering a fault which he, the seller, knew to exist.
All this is very clearly laid down in the judgment delivered by the late
Lord Chief Justice Gibbs in Pickering v. Dowson, and it is decisive of
the present case wherein the plaintiff has neither declared upon, nor
proved fraud on the part of the defendant's testator, but has de-
clared upon a promise or contract. The postea therefore, is to be de-
livered to the defendant.
Judgment for defendant.
MILLER v. TRAVERS et al.
(Court of Chancery, 1832. S Bing. 244.)
Tindal, C. J. 7 In this case the plaintiff, John Riggs Miller, filed
his bill against the defendants for the purpose of establishing the will
of the late Sir John Edward Riggs Miller, Bart., and for carrying
into execution the trusts thereof. One of the defendants, Elizabeth
W'heatley, was the sister and heiress at law of the testator. And
upon the hearing of the cause before His Honour the Vice-Chancellor,
after the answers of the several defendants, and amongst others, the
answer of the defendant, Elizabeth Wheatley, had been put in, and
witnesses examined, His Honour ordered, amongst other things, "That
the parties should proceed to a trial at law on the following issue; viz.
Whether Sir John Edward Riggs Miller, Bart., did devise his estates
in the county of Clare, and in the county of Limerick, and in the city
and county of the city of Limerick, or either and which of them, to
the trustees mentioned in his will, and their heirs ;" in which issue the
plaintiff in the cause was to be the plaintiff, and the heiress at law and
her husband defendants.
Against this part of the decree the defendant, Elizabeth Wheat'
has appealed, and prays a rehearing of the cause so far as respects
that part.
Upon the hearing of this question on appeal, the Lord Chancellor has
been pleased to request the assistance of the Lord Chief Baron and
myself; probably foreseeing, as the case has appeared in the result,
that the propriety of directing an issue, at least as to the devise of the
7 Tart of opinion omitted.
996 the "parol evidence" rule (Ch. 7
estates in the county of Clare, which was the main point in contention
between these parties, would depend upon the nature of the evidence to
be brought forward by the plaintiff, upon whom the affirmative in
such issue would rest.
For if the evidence, and the only evidence which can possibly be
brought forward by the plaintiff in support of his proposition, is of
such a nature and description as to be inadmissible at the trial of the
cause, it would be the duty of this Court to refuse the issue; it being
manifestly to the advantage of both parties that such question should
be decided in the first instance by the Judge sitting in equity, rather
than that the very same question should be decided upon the very
same principles of evidence by the Judge at Nisi Prius, after an ex-
pense and delay that must be worse than useless to all concerned in
the suit.
Now the main question between the parties, and which has formed
the principal subject of argument before us, is this, Whether parol
evidence is admissible to show the testator's intention that his real
estates in the county of Clare should pass by his will? There is a
subordinate question as to the due execution of one sheet of the will,
to which we shall afterwards advert, and upon which question an issue
of a different and more limited form than that which has been at pres-
ent directed, may perhaps properly be granted, if the plaintiff thinks
fit to insist upon it; but the great contention between the parties is
upon the question above proposed, as to the admissibility of parol
evidence with respect to the estates in Clare.
This question arises upon facts, either admitted or proved in the
cause, which are few and simple.
The testator by his will, duly executed, devised "all his freehold
and real estate whatsoever, situate in the county of Limerick, and
in the city of Limerick,'' to certain trustees therein named and their
heirs. At the time of making his will he had no real estate in the
county of Limerick, but he had a small real estate in the city of Lim-
erick, and considerable real estates situate in the county of Clare.
The real estate in the city of Limerick is admitted to have passed
under the devise; but the plaintiff contends that he is at liberty to
show by parol evidence that the testator intended his estates in Clare
also to pass under the same devise.
The general character of the parol evidence which the plaintiff con-
tends he is at liberty to produce, in order to establish such intention
in the devisor, is this; first, that the estate in the city of Limerick is
so small, and so disproportioned to the nature of the charges laid upon
it, and the trusts which are declared, as to make it manifest there
must have been some mistake; and in order to show what that mis-
take was, the plaintiff proposes to prove that in the copy of the will
which had been submitted to the testator for his inspection, and had
been approved and returned by him, the devise in question stood thus:
"All my freehold and real estate whatsoever situate in the counties of
SeC. 1) CONTRADICTING INSTRUMENTS 997
Clare, Limerick, and in the city of Limerick;" that the testator di-
rected some alterations to be made in other parts of his will, and that
the same copy of the will, accompanied with a statement of the pro-
posed alterations, was sent by the testator's attorney to his i
ancer, in order that such alterations might be reduced into proper
form; and that upon such occasion the conveyancer, besides making
the alterations directed, did by mistake, and without any authority,
strike out the words "counties of Clare," and substitute the words
"county of" in lieu thereof, so as to leave the devise in question in the
same precise form as it now stands in the executed will. The plain-
tiff further proposes to prove, that a fair copy of the will so altered
was sent to the testator, who, after having kept it by him for some
time, executed the same in the manner required by law, without ad-
verting to the alteration above pointed out. Indeed, without enter-
ing more minutely into the detail of the evidence, it may be taken, for
the purpose of the argument, that if parol evidence was admissible
by law, the evidence tendered in this case would be sufficient to es-
tablish, beyond contradiction, the intention of the testator to have been
to include his estates in Clare in the devise to the trustees. Upon the
fullest consideration, however, it appears to the Lord Chief Baron and
myself, that admitting it may be shown from the description of the
property in the city of Limerick, that some mistake may have arisen,
yet, still, as the devise in question has a certain operation and effect,
namely, the effect of passing the estate in the city of Limerick, and as
the intention of the testator to devise any estate in the county of Clare
cannot be collected from the will itself, nor without altering or adding
to the words used in the will, such intention cannot be supplied by the
evidence proposed to be given. * * *
The plaintiff, however, contends, that he has a right to prove, that
the testator intended to pass not only the estate in the city of Limerick,
but an estate in a county not named in the will, namely, the county
of Clare, and that the will is to be read and construed as if the word
Clare stood in the place of or in addition to that of Limerick.
But this, it is manifest, is not merely calling in the aid of extrinsic
evidence to apply the intention of the testator, as it is to be collected
from the will itself, to the existing state of his property ; it is calling
in extrinsic evidence to introduce into the will an intention i
parent upon the face of the will. It is not simply removing a difficulty,
arising from a defective or mistaken description; it is making the will
speak upon a subject on which it is altogether silent, and is the same
in effect, as the filling up a blank which the testator might h
in his will. It amounts, in short, by the admission of parol evidence,
to the making of a new devise for the testator, which he is su
to have omitted.
Now, the first objection to the introduction of such evidence is, that
it is inconsistent with the rule, which reason and sense lay down, and
998 the "parol evidence" rule (Ch. 7
which has been universally established for the construction of wills,
namely, that the testator's intention is to be collected from the words
used in the will, and that words which he has not used cannot be added.
Denn v. Page, 3 T. R. 87.
But it is an objection no less strong, that the only mode of proving
the alleged intention of the testator is, by setting up the draft of the
will against the executed will itself. As, however, the copy of the
will which omitted the name of the county of Clare was for some time
in the custody of the testator, and, therefore, open for his inspection,
which copy was afterwards executed by him with all the formalities
required by the statute of frauds, the presumption is, that he must
have seen and approved of the alteration, rather than that he over-
looked it by mistake. It is unnecessary to advert to the danger of
allowing the draft of the will to be set up as of greater authority to
evince the intention of the testator than the will itself, after the will
has been solemnly executed, and after the death of the testator. If
such evidence is admissible to introduce a new subject-matter of devise,
why not also to introduce the name of a devisee, altogether omitted in
the will? If it is admissible to introduce new matter of devise, or a
new devisee, why not to strike out such as are contained in the exe-
cuted will? The effect of such evidence in either case would be, that
the will, though made in form by the testator in his lifetime, would
really be made by the attorney after his death ; that all the guards
intended to be introduced by the statute of frauds would be entirely
destroyed, and the statute itself virtually repealed.
And upon examination of the decided cases 8 on which the plaintiff
has relied in argument, no one will be found to go the length of
supporting the proposition which he contends for ; on the contrary,
they will all be found consistent with the distinction above adverted
to, — that an uncertainty, which arises from applying the description
contained in the will either to the thing devised, or to the person of
the devisee, may be helped by parol evidence; but that a new subject-
matter of devise, or a new devisee, where the will is entirely silent
upon either, cannot be imported by parol evidence into the will it-
self.
On the contrary, the cases against the plaintiff's construction ap-
pear to bear more closely on that point. In the first place, it is well
ablished, that where a complete blank is left for the name of a
legatee or devisee, no parol evidence, however strong, will be allowed
to fill it up as intended by the testator. Hunt v. Hort, 3 Bro. C. C.
311, and in many other cases.
s in the omitted passage the opinion reviewed the following cases dealing
wiiii the construction or application of various provisions in wills: Lowe v.
Buntingtower, i Etuss. 532, notei Standen v. Standen, ii Ves. Jr. 589 (17'.).".);
Mi '].. ey, 8 East, L49 (1806); Selwood v. Mildmay, :: Vea. Jr. 306
(1797); Goodtitle v. Southern, ] M. & S. l".i«j (1813); Day v. Trig, 1 P. Wil-
liams, 286 i iTir.).
Sec. 1) CONTRADICTING [NSTBUMENT8 '• , ! , ' ,
Now the principle must be precisely the same, whether it is the
person of the devisee, or the estate or thing devised, which is left al-
together in blank. And it requires a very nice discrimination to
tinguish between the case of a will, where the description of the estate
is left altogether in blank, and the present case, where there is a total
omission of the estates in Clare.
In the case of Doe d. Oxenden v. Chichester, 4 Dow. P. C. 65, it
was held by the House of Lords, in affirmance of the judgment be-
low, that in the case of a devise of "my estate of Ashton," no parol
evidence was admissible to show that the testator intended to pass not
only his lands in Ashton, but in the adjoining parishes, which he had
been accustomed to call by the general name of his Ashton estate.
The Chief Justice of the Common Pleas, in giving the judgment
of all the Judges, says, "If a testator should devise his lands, of or
in Devonshire or Somersetshire, it would be impossible to say that
you ought to receive evidence that his intention was to devise lands
out of those counties." Lord Eldon, then Lord Chancellor, in page
90 of the Report, had stated in substance the same opinion. The case
so put by Lord Eldon and the Chief Justice, is the very case now
under discussion.
But the case of Newburgh v. Newburgh, decided in the House of
Lords on the 16th of June, 1825, appears to be in point with the
present. In that case the appellant contended, that the omission of
the word "Gloucester," in the will of the late Lord Newburgh, pro-
ceeded upon a mere mistake, and was contrary to the intention of
the testator, at the time of making his will, and insisted that she ought
to be allowed to prove, as well from the context of the will itself
as from other extrinsic evidence, that the testator intended to de-
vise to her an estate for life as well in the estates in Gloucester, which
was not inserted in the will, as in the county of Sussex, which was
mentioned therein.
The question, "whether parol evidence was admissible to prove such
mistake, for the purpose of correcting the will and entitling the appel-
lant to the Gloucester estate, as if the word 'Gloucester' had been in-
serted in the will," was submitted to the Judges, and Lord Chief Jus-
tice Abbott declared it to be the unanimous opinion of those who had
heard the argument, that it could not.
As well, therefore, upon the authority of the cases, and im.pe par-
ticularly of that which is last referred to, as upon reason and prin-
ciple, we think the evidence offered by the plaintiff would be inad-
missible upon the trial of the issue, and that it would therefore be
useless to grant the issue in the terms directed by the Vice-Chaccel-
lor. * * *
Order reversed.
1000 the "parol evidence" rule (Ch. 7
GUARDHOUSE et al. v. BLACKBURN et al.
(Court of Probate, 1SG6. L. R. 1 Prob. & Div. 109.)
The defendants in this case were the executors under the will and
codicil of Mrs. Hannah Jameson, late of Netherton, in Cumberland,
who died on the 29th of August, 1863. The plaintiffs were the resid-
uary legatees named in her will. The will was dated the 30th of May,
1851, and the codicil the 13th of April, 1852, and both were proved in
common form by the defendants, in October, 1863. The probate had
since been called in by the plaintiffs, and the will and codicil were pro-
pounded by the defendants in the ordinary declaration.
By the will the testatrix disposed of three different estates, called
Folds, Scales, and Stainton ; the estate of Scales she charged with
legacies to the amount of £500., and that of Stainton with eight lega-
cies of the amount of £100. each. She duly executed a codicil to her
will in the following terms.
"This is a codicil to the will of me Hannah Jameson, of, &c, which
will bears date the 30th day of May, 1851. I revoke the bequest of
£100. therein made to my nephew, Edward Blackburn, and in lieu
thereof I give him £200. I give and bequeath the legacy or sum of six
hundred pounds, equally, unto, between, and amongst the therein nam-
ed Samuel Jameson, John Jameson, Dorothy Smith, Margaret Arm-
strong, Jane Jameson, and Mary Ann Jameson ; the said Jane Jameson
and Mary Ann Jameson taking one-fifth share only, upon the same
conditions, and under the same limitations in all respects as I have in
my said will devised my estate of Folds in their favour. I release
and discharge my said estate from the payment of the legacies therein
given to my executors, and I direct all the legacies therein and herein
given (and not revoked) to be paid out of my personal estate. In all
other respects I ratify my said will. In witness whereof, I have here-
unto set my hand this 13th day of April, 1852. Hannah Jameson.''
The plaintiffs admitted the due execution of the will and codicil and
the only question raised by them was as to whether the words "there-
in and," at the end of the codicil, were entitled to probate. By their
plea they denied that the codicil, as executed, expressed the wishes
and intentions of the deceased; and alleged that she, having a mind
to alter her will, sent for William Carrick, her solicitor, and gave
him instructions for a codicil, which he reduced into writing, and
which instructions were pleaded; which, after giving and revoking the
icies mentioned in the codicil as executed, concluded, "And I charge
all the said I s on my personal estate." That the said William
Carrick, intending to prepare the said codicil for execution, and te
ke a few verbal alterations only, wrote out the paper propounded,
but that he inadvertently, or by mistake, and without any instructions
whatever to that effect from the deceased, wrote the words, "And 1
direct all the legacies therein and herein given (and not revoked) to be
SeC. 1) CONTRADICTING I NSTKIM KNTS 1001
paid out of my personal estate in lieu of ; and T charge all the said
legacies on my personal estate." That the effect of the said wor
"therein and/' which had the effect of discharging the estate of Scales
of legacies to the amount of £500., and of the estate of Stainton of the
payment of legacies to the amount of £800., was not observed by the
said William Carrick, nor by the deceased, when she executed the codi-
cil, and that the said paper writing, containing the words "therein
and," was not the codicil of the said deceased.
William Carrick said in examination : he took the instructions from
the testatrix by word of mouth, at her residence, and wrote them down
in her presence on the draft. The draft was intended to be copied for
execution. From the draft he prepared in her presence a copy for
execution for her, varying in a few particulars from the draft, hut
not in substance, until he came to the words in dispute. He read
the draft to her, and asked if it was as she intended it. She expressed
herself satisfied with it. He read the copy over to her, so that she
could understand it. She said nothing, but proceeded to execute it.
He retained the codicil in his custody until the deceased's death. She
gave him no instructions to discharge the real estates of Scales and
Stainton from the legacies of £1300. ; and he had no instructions from
her to insert the words "therein and." He inserted them by inadver-
tence. Her attention was not particularly directed to them, and his at-
tention was first directed to them after her death.
Sir J. P. Wilde. 9 * * * Supposing, then, parol evidence to be
admissible in such a case as the present, the question recurs to what
extent is it still open to the Court since the statute, to act upon such
e\ idence, for the purpose of rejecting the whole or expunging any por-
tion of the written testament to which the testator has duly affixed his
name? A more important inquiry could hardly arise. For you may as
effectually incline the balance by taking out of one scale as by adding to
the other, and it is quite as easy to vary the effect of a will in any
given direction by leaving words out as by putting them in. After
much consideration, the following propositions commend themselves
to the Court as rules which, since the statute, ought to govern its action
in respect of a duly executed paper : First, that before a paper so
executed is entitled to probate, the Court must be satisfied that the
testator knew and approved of the contents at the time he signed it.
Secondly, that except in certain cases, where suspicion attaches to the
document, the fact of the testator's execution is sufficient proof that
he knew and approved the contents. Thirdly, that although the
tator knew and approved the contents, the paper may still be rejected,
on proof establishing, beyond all possibility of mistake, that he did not
intend the paper to operate as a will. Fourthly, that although the tes-
tator did know and approve the contents, the paper may be ref
probate, if it be proved that any fraud has been purposely pract
» Part of opinion omitted.
1002' the "parol evidence" rule (Ch. 7
on the testator in obtaining his execution thereof. Fifthly, that sub-
ject to this last preceding proposition, the fact that the will has been
duly read over to a capable testator on the occasion of its execution, or
that its contents have been brought to his notice in any other way,
should, when coupled with his execution thereof, be held conclusive
evidence that he approved as well as knew the contents thereof. Sixth-
ly, that the above rules apply equally to a portion of the will as to the
whole. The first and second of these propositions are amply estab-
lished by the case of Barry v. Butlin, 2 Moo. P. C. 480, and others of
that class in the Privy Council. The third was also well approved law
in the Ecclesiastical Courts, for there must be an "animus testandi" to
constitute a paper testamentary. The fourth requires no comment, and
the last is justified by the case of Allen v. McPherson, 1 H. of L. Cas.
191. It remains to say a few words on the fifth. It is here that the
right to derogate from the force of an executed paper approaches and
receives its limit. And it is obvious enough, that if the Court should
allow itself to pass beyond proof that the contents of any such paper
were read or otherwise made known to the testator, and surfer an in-
quiry by the oath of the attorney or others as to what the testator real-
ly wished or intended, the authenticity of a will would no longer re-
pose on the ceremony of execution exacted by the statute, but would
be set at large in the wide field of parol conflict, and confided to the
mercies of memory. The security intended by the statute would thus
perish at the hands of the Court. I have thus endeavoured to place
the use of parol evidence in these matters on its true ground. The gen-
eral rule for excluding it in our courts is based upon the proposition
that written testimony is of a higher grade — more certain, more reliable
—than parol, and that resort should be had to the highest evidence of
which a subject is capable, to the exclusion of the inferior class. But
it is one thing to admit evidence, and another to give effect to it. If
a statute require that a thing should be in writing and signed, in order
to its validity, it precludes the Court from giving effect to parol testi-
mony of that which is required to be so written and signed. And if it
be said, why, then, admit parol evidence on the subject at all? The
answer is, that if the scope of such evidence can be clearly known be-
fore it is heard, it should be excluded ; but then only on the ground
of immateriality, not because it is secondary. In actual practice a
large number of cases are so presented that it is impracticable to reject
evidence as immaterial before the details of it are known. Little need
be added as to the operation of these principles upon the present case.
The codicil was proved to have been read over to the testator before
the execution thereof, she duly executed the same, and the Court con-
ceives it to be beyond its functions or powers to substitute the oath of
the attorney who prepared it, fortified by his notes of the testator's in-
structions, for the written provisions contained in a paper so executed.
The probate will, therefore, be delivered out to the plaintiffs in its
present form.
SeC. 1) CONTRADICTING INSTRUMENTS 1003
FOSTER v. JOLLY.
(Court of Exchequer, 1S35. 1 Cromp., M. & Tl. 703.)
Assumpsit by the payee against the maker of a promissory note for
il2., payable fourteen days after date. Plea, the general issue. At the
trial before Gurney, B., at the last assizes for the county of Lancaster,
it appeared that Samuel Milnes, the brother-in-law of the defendant,
being agent for a co-operative society, and having ordered goods for
the society from a person named Walker, which had not been paid for,
the plaintiff, as the attorney of Walker, sued Milnes for the amount.
Milnes then gave the names of certain members of the society, who
were also sued for the debt and a verdict obtained. Milnes also gave
a cognovit, and, judgment being entered up, he was taken on a ca. sa.,
and while in prison, the defendant gave the note in question for the
amount of the demand against Milnes. The defendant now proposed
to show, that the note was given under an agreement that it should
not be enforced, in case Walker should obtain a verdict in the action
against the members of the co-operative society. On the part of the
plaintiff, it was objected that parol evidence of the agreement was inad-
missible to vary the terms of the written instrument, and also that the
agreement was that the note should not be put in suit, only in case
Walker obtained the fruits of his verdict. The learned Judge, however,
admitted the evidence, giving the plaintiff leave to move to enter a ver-
dict for £12., if the Court should be of opinion that the evidence was
inadmissible. In the course of last term, Wightman accordingly ob-
tained a rule, and —
Alexander now showed cause. It is not a universal rule that parol
evidence may not be given to contradict the terms, express or implied,
of a bill or note. Where a bill purports to be "for value received," it
is competent to the party sued upon it to show, that, in fact, no value
has been received ; so, it is every day's practice to contradict, by oral
evidence, the implied consideration which every bill or note carries
with it.
Lord Abinger, C. B. At the commencement of the argument, I
felt some doubt, whether this might not be regarded as a question of
consideration; but the reasoning of Mr. Wightman has placed it in
another light, and I am of opinion that the evidence tendered by the
defendant went to vary the contract appearing on the face of the note.
It is not a question of consideration, or collateral security. The con-
sideration of the instrument was not impeached, nor was it given as
a collateral security, but the defence attempted to be established was in
direct contradiction of the terms of the note. The maker of a note
payable on a day certain cannot be allowed to say, "I only meant to
pay you upon a contingency," that is at variance with his own written
contract. The case must be governed by that of Rawson v. Walker.
1004 THE "PA.ROL EVIDENCE" RULE (Cll. 7
Parke, B. At first I had some doubts upon the point, but I am
now satisfied that this evidence ought to have been rejected. Every
bill or note contains two things — value either expressed or implied, and
a contract to pay at a specified time. The general rule is, that the
maker is at liberty to contradict the value as between himself and the
party to whom he gave the note ; but he is not at liberty to contradict
the express contract to pay at a specified time. Here the event upon
which the defendant contends that the note was payable was contingent,
and might never happen, which is a clear contradiction of the contract
contained in the note. Rawson v. Walker is in point; Pike v. Street
falls within the other class of cases in which the consideration has been
contradicted. There the agreement was, that the plaintiff should sue
the acceptor of the bill only, and should not sue the endorser (the de-
fendant). That, as between the plaintiff and the defendant, negatived
any consideration, and so was admissible.
Alderson, B. Parol evidence is admissible to contradict the con-
sideration or value of a bill or note, but not the terms of the instru-
ment itself. Here the note contains an engagement to pay at a specified
time, namely, in fourteen days, and evidence is offered to show, that
this means that the note should be paid upon the occurrence of an event
which may happen either before or after the expiration of fourteen
days. Such evidence falls within the general rule, that matters in writ-
ing shall not be contradicted by parol.
Gurney, B., concurred.
Rule absolute.
PEUGH v. DAVIS.
(Supreme Court of the United States, 1S77. 96 TJ. S. 332, 24 L. Ed. 775.)
Mr. Justice Field 10 delivered the opinion of the court:
This is a suit in equity to redeem certain property, consisting of two
squares of land in the City of Washington, from an alleged mortgage
of the complainant. The facts, out of which it arises, are briefly these:
in March, 1857, the complainant, Samuel A. Peugh, borrowed from
the defendant, Henry S. Davis, the sum of $2,000 payable in sixty
days with interest at the rate of three and three-fourths per cent, a
month, and executed as security for its payment a deed of the two
squares. This deed was absolute in form, purporting to be made up-
on a sale of the property for the consideration of the $2,000, and con-
tained a special covenant against the acts of the grantor and parties
claiming under him. This loan was paid at its maturity, and the deed
n turned to the grantor.
In May following, the complainant borrowed another sum from
the defendant, amounting to $1,500, payable in sixty days, with the
io Statement omitted.
Sec. 1) CONTRADICTING INSTRUMENTS 1005
same rate of interest, and as security for its payment redelivered to
him the same deed. Upon this sum the interest was paid up to the
sixth of September following. The principal not being paid, the de-
fendant placed the deed on record on the 7th of that month. In Jan-
uary, 1858, a party claiming the squares under a tax title brought two
suits in ejectment for their recovery. The defendant thereupon de-
manded payment of his loan, as he had previously done, but without
success.
On the 9th of February following, the complainant obtained from
the defendant the further sum of $500, and thereupon executed to him
an instrument under seal, which recited that he had previously sold and
conveyed to the defendant the squares in question ; that the sale and
conveyance were made with the assurance and promise of a good and
indefeasible title in fee simple; and that the title was now disputed.
It contained a general covenant warranting the title against all par-
ties, and a special covenant to pay and refund to the defendant the
costs and expenses, including the consideration of the deed, to which
he might be subjected by reason of any claim or litigation on account
of the premises. Accompanying this instrument, and bearing the same
date, the complainant gave the defendant a receipt for $2,000, purport-
ing to be in full for the purchase of the land.
The question presented for determination is whether these instru-
ments taken in connection with the testimony of the parties, had the
effect of releasing the complainant's equity of redemption. It is in-
sisted by him that the $500 advanced at the time was an additional loan,
and that the redelivered deed was security for the $2,000, as it had
previously been for the $1,500. It is claimed by the defendant thai
this money was paid for a release of the equity of redemption which
the complainant offered to sell for that sum, and at the same time" to
warrant the title of the property and indemnify the defendant against
loss from the then pending litigation.
It is an established doctrine that a court of equity will treat a deed,
absolute in form, as a mortgage, when it is executed as security for
a loan of money. That court looks beyond the terms of the instru-
ment to the real transaction ; and when that is shown to be one of se-
curity and not of sale, it will give effect to the actual contract of the
parties. As the equity, upon which the court acts in such cases, arises
from the real character of the transaction, any evidence, written or
oral, tending to show this is admissible. The rule which excludes
parol testimony to contradict or vary a written instrument has refer-
ence to the language used by the parties. That cannot be qualified or
varied from its natural import, but must speak for itself. The rule
does not forbid an inquiry into the object of the parties in execut-
ing and receiving the instrument. Thus, it may be shown that a deed
was made to defraud creditors, or to give a preference, or to secure
a loan, or for any other object not apparent on its face. The object
of parties in such cases will be considered by a court of equity; it
1006 the "parol evidence" rule . (Ch. 7
constitutes a ground for the exercise of its jurisdiction, which will
always be asserted to prevent fraud or oppression, and to promote
justice. Hughes v. Edwards, 9 Wheat. 489, 6 L. Ed. 142; Russell
v. Southard, 12 How. 139, 13 L. Ed. 927; Taylor v. Luther, 2 Sumn,
22S, Fed. Cas. No. 13,796; Pierce v. Robinson, 13 Cal. 116.
It is also an established doctrine that an equity of redemption is in-
separably connected with a mortgage; that is to say, so long as the
instrument is one of security, the borrower has in a court of equity a
right to redeem the property upon payment of the loan. This right
cannot be waived or abandoned by any stipulation of the parties made
at the time, even if embodied in the mortgage. This is a doctrine
from which a court of equity never deviates. Its maintenance is deem-
ed essential to the protection of the debtor, who, under pressing ne-
cessities, will often submit to ruinous conditions, expecting or hoping
to be able to repay the loan at its maturity, and thus prevent the con-
ditions from being enforced and the property sacrificed.
A subsequent release of the equity of redemption may, undoubtedly,
be made to the mortgagee. There is nothing in the policy of the law
which forbids the transfer to him of the debtor's interest. The trans-
action will, however, be closely scrutinized, so as to prevent any oppres-
sion of the debtor. Especially is this necessary, as was said on one
occasion by this court, when the creditor has shown himself ready and
skillful to take advantage of the necessities of the borrower. Russell
v. Southard, supra. Without citing the authorities, it may be stated
as conclusions from them, that a release to the mortgagee will not be
inferred from equivocal circumstances and loose expressions. It must
appear by a writing importing in terms a transfer of the mortgagor's
interest, or such facts must be shown as will operate to estop him from
asserting any interest in the premises. The release must also be for
an adequate consideration ; that is to say, it must be for a considera-
tion which would be deemed reasonable if the transaction were be-
tween other parties dealing in similar property in its vicinity. Any
marked undervaluation of the property in the price paid will vitiate the
proceeding.
If, now, we apply these views to the question before us, it will not
be difficult of solution. It is admitted that the deed of the complainant
was executed as security for the loan obtained by him from the de-
fendant. It is, therefore, to be treated as a mortgage, as much so
as if it contained a condition that the estate should revert to the grantor
upon payment of the loan. There is no sal is factory evidence that the
aity of redemption was ever released. The testimony of the par-
ties is directly in conflict, both being equally positive — the one, that
the advance of $500 in February, 1858, was an additional lean; and
the other, that it was made in purchase of the mortgagor's interest
in the property. The testimony of the defendant with reference to
other matters connected witli the loan is, in several essential par-
ti, nlars, successfully contradicted. Ili- denial of having received the
Sec. 1) CONTRADICTING INSTRUMENTS 1007
installments of interest prior to September, 1357, and his hesitation
when paid checks for the amounts with his indorsement were produc-
ed, show that his recollection cannot always be trusted.
Aside from the defective recollection of the creditor, there are sev-
eral circumstances tending to support the statement of the mortgagor.
One of them is, that the value of the property at the time of the al-
leged release was greatly in excess of the amount previously secured
with the additional $500. Several witnesses resident at the time in
Washington, dealers in real property, and familiar with that in con-
troversy and similar property in its vicinity, place its value at treble
that amount. Some of them place a still higher estimate upon it. # It
is not, in accordance with the usual course of parties, when no fraud
is practiced upon them, and they arc free in their action, to surrender
their interest in property at a price so manifestly inadequate. The
tax title existed when the deed was executed, and it was not then con-
sidered of any validity. The experienced searcher who examined the
records pronounced it worthless, and so it subsequently proved.
Another circumstance corroborative of the statement of the mort-
gagor, is. that he retained possession of the property after the time
of the alleged release, inclosed it, and either cultivated it or let it for
cultivation, until the inclosure w^as destroyed by soldiers at the com-
mencement of the war in 1861. Subsequently he leased one of the
squares, and the tenant erected a building upon it. The defendant
did not enter into possession until 1865. These acts of the mortgagor
justify the conclusion that he never supposed that his interest in the
property was gone, whatever the mortgagee may have thought. Par-
ties do not usually inclose and cultivate property in which they have
yo interest.
The instrument executed on the 9th of February, 1858, and the
accompanying receipt, upon which the defendant chiefly relies, do
not change the original character of the transaction. That instrument
contains only a general warranty of the title conveyed by the original
deed, with a special covenant to indemnify the grantee against loss
from the then pending litigation. It recites that the deed was executed
upon a contract of sale contrary to the admitted facts that it was giv-
en as security for a loan. The receipt of the $2,000, purporting to be
the purchase money for the premises, is to be construed with the in-
strument, and taken as having reference to the consideration upon
which the deed had been executed. That being absolute in terms, pur-
porting on its face to be made upon a sale of the property, the other
papers referring to it were drawn so as to conform with those terms.
They are no more conclusive of any actual sale of the mortgagor's
interest than the original deed. The absence in the instrument of a
formal transfer of that interest leads to the conclusion that no such
transfer was intended. *
We are of opinion that the plaintiff never conveyed his interest in
the property in controversy except as security for the loan, and that
1008 the "parol evidence" rule (Ch. 7
his deed is a subsisting security, He has, therefore, a right to redeem
the property from the mortgage. In estimating the amount due upon
the loan, interest only at the rate of six per cent, per annum will be
allowed. The extortionate interest stipulated was forbidden by stat-
ute, and would, in a short period, have devoured the whole estate.
The defendant should be charged with a reasonable sum for the use
and occupation of the premises from the time he took possession in
1865, and allowed for the taxes paid and other necessary expenses in-
curred by him.
The decree of the Supreme Court of the District must be reversed
and the cause remanded for further proceedings, in accordance with
this opinion; and it is so ordered.
KENT v. AGARD.
(Supreme Court of Wisconsin, 1SG9. 24 Wis. 3TS.)
Ejectment. Plaintiff showed title in one Cown in 1848; mortgage
from Cown to him in 1859; foreclosure of the mortgage, and ref-
eree's deed s to him, in 1865. He then introduced a deed of the prem-
ises, absolute on its face, executed by Cown to one Lasley, June 12,
1849, recorded as a deed on the day of its date ; and offered to show,
by the testimony of said Cown, that said deed was given as a se-
curity for an indorsement by Lasley of Cown's note ; that said note
had been paid in full by Cown before June, 1854; that in the month
last mentioned Lasley died; and that in June, 1856, the administra-
tors of Lasley's estate, by an instrument under seal and duly recorded
in said county, made by order of the proper probate court, after proof
taken of the facts, acknowledged full satisfaction of said mortgage,
and released and reconveyed the premises to said Cown ; but the evi-
dence was rejected; and, it being admitted that defendants were in
possession under the heirs of Lasley, the plaintiff was nonsuited.
From this judgment he appealed.
Paine, J. The plaintiff should have been allowed to show by parol
that the absolute deed given by Cown to Lasley was intended as a mere
security, and was consequently only a mortgage. That this may be
done in some form of action, is not contested. And I can see no rea-
son why it may not be done in an action to recover the possession of
real estate. When the facts are proved, such a deed is a mortgage only,
both at law and in equity. The rights of the mortgagor and mort-
gee arc precisely the same as though the defeasance were contained
in the deed itself. The only difference is in the manner of proving
the defeasance.
• It may well be that where the grantee in such an absolute deed dies,
In t01 or administrators could not conclude his heirs by admit-
ting the (\vc<\ to be a mere mortgage, and by releasing it as such. The
SCC. 1) CONTRADICTING INSTRUMENTS 1000
heirs may be entitled to a trial upon the fact, if they choose to con-
test it. But that trial may as well be in an action of ejectment as
in any other. If the deed was in fact only a mortgage, then the in-
debtedness secured by it was properly paid to the administrators; and,
on proof of the fact by parol, their release takes effect, and shows that
the mortgage was extinguished, and constituted no obstacle to the
plaintiff's recovery upon his legal title.
Indeed, it seems difficult to imagine any other action by which the
plaintiff could bring the question to trial. If he should bring an
equitable action, and ask to have the deed declared a mortgage, it
would seem to be a sufficient answer to tell him that if it was a mort-
gage in fact, he could prove it in an action at law, and it would then
have only the effect of a mortgage. The authorities cited by the ap-
pellant show that such evidence is admissible in both classes of ac-
tions.
By the Court. The judgment is reversed, and the cause remanded
for a new trial. 11
PRENTISS v. RUSS.
(Supreme Judicial Court of Maine, 1S39. 16 Me. 30.)
Replevin for a chaise. The defendant claimed the chaise under a
contract dated April 4, 1837, wherein the plaintiff sells to the de-
fendant the chaise in question, and Russ sells to Prentiss a note given
by one Pinkham to him, and indorsed, and promises, that if Prentiss
cannot collect the note of Pinkham on execution, he will pay him the
amount, and guaranties to Prentiss, that execution can be obtained on
the note for principal and interest. On the trial, the plaintiff con-
tended, that the contract of sale had been rescinded ; and to estab-
lish this fact, offered evidence to prove that the note was void through
an entire failure of consideration ; that the defendant well knew the
fact, but when the contract was made fraudulently represented to the
plaintiff, that the note was collectable, and that Pinkham had no de-
fence to it; that an action had previously been brought upon it in the
name of one Butler, which was defended by Pinkham, and discon-
tinued because the defence would have been successful, and the costs
paid by Russ ; and that these facts, though well known to the de-
fendant, were by him concealed from the plaintiff. The defendant
objected to this evidence, because that the contract was in writing,
and parol evidence could not be admitted to vary, control, or explain
it ; and because the plaintiff could have upon that contract all the
ii And so in Lamson v. Moffat. 61 Wis. 153, 21 N. W. 62 (1SS4), where the
security took the form of a lease.
Contra: Reilly v. Cullen, 159 Mo. 322, 60 S. W. 126 (1900).
IIint.Ev.— 64
1010 THE "PAROL EVIDENCE" RULE (Ch. 7
remedies, if any, to which he was entitled. The judge overruled the
objections, and the testimony was admitted. The plaintiff, on find-
ing the truth, tendered back the note, notified the defendant that the
bargain was rescinded, and demanded the chaise.
The judge instructed the jury, that if at the time of making the
contract, Pinkham had a valid defence to the note, and if the defend-
ant, knowing that fact, did nevertheless fraudulently represent to the
plaintiff, that the note was due and collectable and that Pinkham had
no defence to it ; or if there had been a previous action brought upon
said note, with the knowledge and for the benefit of Russ, which had
been discontinued on account of the defence set up by Pinkham ; and
if the knowledge of that fact would probably have dissuaded the plain-
tiff from parting with his chaise on the terms set forth in the written
contract; and if said Russ artfully and purposely concealed that fact
from the plaintiff; then it would be competent for the plaintiff to
rescind the contract and sale. On the return of a verdict for the
plaintiff, the defendant's counsel filed exceptions.
Shepley, J. As the contract between the parties was reduced to
writing, it is contended, that parol evidence should not have been ad-
mitted to prove, that other allegations were made, than those contained
in it; and the case of Richards v. Killam (10 Mass. 239) is relied
upon as in point. In that case the assignment of the bond was made
under seal, and the action was assumpsit complaining indeed of deceit
and fraud but the declaration was drawn in such a manner, that the
court say, that the allegations "are insufficient to enable us to give to
this action or the evidence to support it, the effect of an action for a
deceit and fraud, considered as a tort, and not as a breach of contract."
And it appears to have been upon that ground, that the evidence was
held to be inadmissible. In the case of Boyce v. Grundy (3 Pet. 219,
7 L. Ed. 655), it was decided, that a party was not precluded from in-
troducing testimony of other allegations made at the time than those
contained in the written contract for the purpose of proving fraud.
Xor is one who has in a contract of sale taken a warranty, pre-
cluded from rescinding it, if he can prove, that it was obtained from
him by fraud; because the whole contract whatever may be its char-
acter is avoided by the fraud, and the parties are left to assert their
rights as they would, if no contract had been made.
Fraud may be committed by the suppressio veri as well as by the
allegatio falsi, if the means of information are not equally accessible
to both, but exclusively within the knowledge of one of the parties, and
known to be material to a correct understanding of the subject; and
e pecially when one of the parties relies upon the other to communi-
e to him the true state of farm to enable him to judge of the ex-
pediency of the bargain. The instructions given required the jury to
find, thai the former action was discontinued on account of the de-
fence sel up, and thai ibis was artfully and purposely concealed, and
that it would have had a material influence, bad it been known, upon
Seel) CONTRADICTING INSTRUMENTS 1011
the contract. The case of Hill v. Grey, 1 Stark. Rep. 352, fully jus-
tifies this part of the charge.
The jury having found the contract fraudulent, the plaintiff had
a right to rescind it, and having elected to do so, and performed what
was necessary on his part, is entitled to recover.
Exceptions overruled. 12
HOUGHTON v. BURDEN.
(Supreme Court of the United States, 1913. 2L>S U. S. 161, 3.*5 Sup. Ct. 401,
57 L. Ed. 780.)
Mr. Justice Lurton 13 delivered the opinion of the court.
This is an appeal from a decree determining a controversy arising
in a bankruptcy proceeding. The origin of the matter was ftiis:
Canfield, the bankrupt, was a merchant in New York. He borrowed
from Burden the sum of $10,000, and as security assigned to him
certain book accounts, aggregating the sum of $14,000, and agreed to
act as agent for Burden in their collection. Shortly afterwards he
was adjudicated a bankrupt. The receiver obtained possession of the
bankrupt's books and held onto the assigned accounts, and proceeded
to collect them upon the claim that the contract was usurious and
void under the law of New York.
In this situation Burden intervened in the Bankruptcy case and filed
a petition, in which he asserted his title to the assigned accounts and
to any proceeds collected by the receiver. The district court, upon a
final hearing, upheld the contention of the bankrupt's receiver, now
the trustee, and dismissed the intervening petition. This decree was
reversed by the circuit court of appeals, that court holding that the
defense of usury 14 had not been satisfactorily made out. * * *
The contract is elaborate and too lengthy to be set out in full. In
substance it provided for a loan of $10,000 at 6 per cent upon as-
signed accounts against reputable merchants, the loan not to exceed
7? per cent of the face value of the accounts. Canfield agreed to act
as Burden's agent in collecting, and to guarantee the payment of each
account so assigned. The contract also provided that after the pay-
12 That the rule may be otherwise In tlie case of specialties, see George v.
Tate, 102 U. S. 564, 26 L. Ed. 232 (IS
For a discussion of the fraud cases, see Adams v. Gillig, 199 N. V 31 I. 92
N E 670, 32 L. R. A. (N. S.) 127, 20 Ann. Cms. 910 (1910).
Generally it may be shown that (in- signing of whal purports to be a v
ten contract was induced by misrepresentation as to Its contents. Whipple
v. Brown Bros. Co., 225 N. Y. 237, 1-1 N. E. 748 (1919).
is Part of opinion omitted.
i* The lawful rate of Interest In New York is 6 per cent By section ,173 of
the General Business Law of New York it Is provided'
"All * * * contracts whatsoever * * * whereupon or whereby tl
Bhall be reserved or taken or secured, or agreed to be reserved or taken,
greater sum, or greater value, tor the loan or forbearance of any money,
goods or other things in action, than as above prescribed, shall be void."
1012 the "parol evidence" rule (Ch. 7
ment of the money borrowed and interest, and costs and expense of
collection, and the compensation to Burden for his services as re-
quired by the bond, the remaining accounts should be reassigned to
Canfield. The clause in regard to this compensation gives rise to the
claim of usury. It was in these words :
"The party of the second part shall be entitled to compensation for
the labor and services to be performed, and time to be expended, by
him in making the examinations required by the terms of the bond
executed by the Fidelity & Casualty Company of New York, and de-
livered simultaneously herewith, which compensation is to be meas-
ured by computing 1 per cent per month upon whatever part of the
advance shall remain uncollected on the said accounts, and for the
period that the same shall remain uncollected."
The indemnity bond, styled an "assigned-accounts bond," is in the
usual form, and is undoubtedly a device resorted to, to enable mer-
chants to use book accounts as collateral for money advanced or
loaned. * * *
The contention is that this provision for compensating Burden for
the service required by the indemnity bond was a mere cover for un-
lawful interest, and that it was never intended or expected that any
such service would be given. This is sought to be shown by alleged
oral declarations of Canfield. Thus, Canfield says that when he was
about to sign the contract, he asked Burden what the clause about
services to be rendered meant, and that he replied, "that that was
simply to get around the usury law; there were no services to be
rendered at all." * * *
All of this evidence was excepted to as contradicting the written
agreement and was admitted over objection. Where the inquiry is
whether the contract is one forbidden by law, it is open to evidence
dehors the agreement to show that, though legal upon its face, 15 it
was in fact an illegal agreement. Otherwise the very purpose of the
law in forbidding the taking of usury under any cover or pretext
would be defeated. The defense is one which the debtor may make
even though it contradicts the agreement. Scott v. Lloyd, 9 Pet. 418,
9 L. Ed. 178.
in Marshall, C. J., in Scott v. Lloyd. 9 Pet. 418, 9 L. Ed. 178 (1835): "It lias
been settled, that to constitute the offence, there must be a loan, upon which
more than six per cent interest is to be received; and it is also settled, that
where the contract is in truth for the borrowing and lending of money, no
Conn which can be given to it will free it from the taint of usury, if nunc
than legal interest be secured. The ingenuity of lenders has devised many
contrivances, by which, under forms sanctioned by law, the statute may be
evaded. Among the earliest and most common of these is the purchase of
annuities, secured upon real estate or otherwise. * * * Yet it is apparent,
thai if giving this form to the contract will afford a cover which conceals It
from judicial Investigation, the statute would become a dead letter. Courts,
therefore, perceived the necessity of disregarding the form, and examining
into the real aature of the transaction. If that be in fact a loan, no shift or
(]!•-, Ice will protect it."
SCC. 1) CONTRADICTING INSTRUMENTS 1013
It has been suggested that there is a distinction between the ad-
missibility of evidence dehors the contract which is intended to show
the whole and true nature of the transaction, and mere declarations
made by the lender in the nature of a confession that the agreement
for services required to maintain the obligation of the indemnity bond
was a mere scheme to cover usury, and that no service was to be ren-
dered. We notice the distinction and pass it by, for the reason that,
assuming the evidence to be competent, it is not so convincing as to
justify a disagreement with the view of the circuit court of appeals
that the defense of usury has not been satisfactorily made out. * * *
Decree affirmed.
Mr. Justice Pitney dissents.
THE KING v. INHABITANTS OF CHEADLE.
(Court of King's Bench, 1832. 3 Barn. & Adol. 833.)
On appeal against an order of two justices, whereby William Smith
and his wife and children, were removed from the parish of Cheadle,
in the county of Stafford, to the township of Scropton and Foston,
in the county of Derby, the sessions quashed the order, subject to the
opinion of this Court on the following case :
The settlement of the pauper, W. Smith, at the time of his mar-
riage in 1808, was in the appellant township of Scropton and Foston.
The appellants, in order to establish a subsequent settlement by estate
in Cheadle, [proved a conveyance to him of certain property in which
the purchase price was stated to be £2. 2s.].
The evidence of the pauper, and also of one Jeremiah Robinson
(who was not a party to the deed), was then tendered on the part of
the appellants, and objected to on the other side, but received by the
Court, to show that the consideration stated in the deed was not paid,
nor intended by the parties to be paid; and that the deed was only
made for the purpose of confirming the pauper's title to the plot of
land which had been allotted to him shortly after his marriage, un-
der the parol arrangement between John James and his children. The
sessions found that the consideration mentioned in the deed was not
paid, nor intended to be paid. The questions for the opinion of this
Court, were, 1st, whether the last-mentioned evidence was prope re-
admitted? and if it was, then, 2dly, whether, on all the fact< of the
case, the pauper acquired a settlement in the respondent parish ~i
Lord TENTERDEN, C. J. I think a settlement was gained in Cheadle.
The appellants proved that John James, the father of the paupa
wife, being seised in fee of a house and land in Cheadle. and havii
several children, it was agreed among them in his lifetime that a part
of the land should be allotted to each of them. One of the children
1014 the "parol evidence" rule (Ch. 7
married the pauper in 1808, and, soon after in pursuance of the agree-
ment, a portion of the land was staked out, upon which the pauper built
a house, and after residing there -seventeen years, he sold the house for
£60. There having been twenty years' possession, the case thus far
showed such an estate as gave the pauper a settlement. To avoid
this settlement by estate, the parish- officers of Cheadle proposed to
show, by the deed of 1815, that the pauper's title to it accrued by a pur-
chase for a money consideration not amounting to £30. That deed re-
cited, that Smith had agreed to purchase the land for the considera-
tion of two guineas. The other parish alleged in answer that the re-
cital was not true, and that the real consideration was not a money
consideration ; and they gave evidence that the two guineas were not
paid, or intended to be paid, and that the only object of the parties in
executing this deed was to confirm the pauper's title. The objection is,
that evidence to contradict the statement of the consideration in the
deed ought not to have been admitted. Now, the parties to the deed
might be estopped by it from saying that this was not a purchase for
a money consideration; but the parish officers, who are strangers to
it, are not. If that were otherwise, the greatest inconvenience and in-
justice might arise, because a settlement might be acquired or not
according to the language used by parties in an instrument of this
nature. The evidence was, in my opinion, properly received, as show-
ing, not that the deed was void, but that this was not a purchase for a
money consideration.
LittlEdalE, J., concurred.
Parke, J. It is quite clear, that although the parties to this deed
were estopped by it, strangers were not, and consequently the parish
officers might show the real nature of the transaction. If this were
not so, parishes might be burthened with settlements for which there
was no colour. It is clear that a settlement was gained in this case by
an estate voluntarily conveyed to the pauper.
Taunton, J., concurred.
Order confirmed. 10
BOWES v. FOSTER.
(Court of Exchequer, 1S58. 2 Hurl. & X. 779.)
Trover. Pleas: Not guilty, and not possessed. Issues, thereon.
At the trial before the Assessor of the Court of Passage at Liver-
ol, the facts, according to the plaintiff's evidence, were, that in June
t, being in difficulties, he was desirous of disposing of his stock m
!'■• See same thing allowed in Bex v. Inhabitants of Scammonden, ■". i>. ^ E.
171 (I; the broad ground thai n party mlghl prove other considerations
than 1 1 Bed in the deed.
Sec. 1) CONTRADICTING INSTRUMENTS 1015
trade and business of a chemist ; but fearing that some of his creditors
would issue execution against his goods, he agreed with the defendant,
who was also a chemist, and a creditor of the plaintiff for £40., that
there should be a pretended sale of them to him. For this purpose
an invoice of the goods was made out to the defendant, and a re-
ceipt was given to him by the plaintiff for the sum of £40., which
was therein stated to be the purchase-money of the goods. The plain-
tiff then delivered possession to the defendant and left the neighbour-
hood, and an assistant of the defendant took charge of the shop and
carried on the business. The defendant afterwards sent the goods
to an auctioneer for sale, and the plaintiff, having heard of it, gave no-
tice to the auctioneer that they were his property. The goods were
sold, and the plaintiff brought an action against the auctioneer, who
obtained an interpleader order, under which he paid the proceeds
into Court, and the defendant was admitted to defend the action. At
the conclusion of the plaintiff's case, it was submitted by the de-
fendant's counsel that he ought to be nonsuited, inasmuch as it was
not competent for him to allege that the agreement under which he
had given the invoice and receipt, and had delivered possession of the
goods, was intended as between him and the defendant as a fraud
on other creditors. The Assessor overruled the objection, and the
defendant's counsel then adduced evidence to prove that the goods
were delivered to the defendant in satisfaction of the £40. which
the plaintiff owed him. The Assessor left it to the jury to say whether
the transaction was a bona fide sale, or a mere colourable one for
the purpose of protecting the goods against any creditor who might
issue execution: that in the former case they should find for the de-
fendant, and in the latter for the plaintiff. The jury found a verdict
for the plaintiff, and leave was reserved to the defendant to move to
enter a nonsuit.
Brett, in the present term, obtained a rule nisi accordingly.
Pollock, C. B. 17 I am of opinion that the rule ought to be dis-
charged. A large portion of the argument in support of it appears to
me to arise from not distinguishing between a fact and the evidence
of a fact. Where goods are professed to be transferred by deed, the
deed actually transfers the property; and, the moment the deed is
executed, by law the property ceases to be the property of the per-
son who has executed the deed, and becomes the property of the person
in whose favor it has been executed. That is not so with a fictitious
invoice, or a receipt for money which has never been paid. The doc-
uments, no doubt, are evidence of a fact, but the question is whether
they may not be rebutted by evidence that there was no sale and no
merit. I consider that so much of the argument for the defendant
i- Tart of opinions of Pollock, C. I'.., and CUannHl. B., and opinions of
Martin and Watson, BB., omitted.
1016 the "parol evidence" rule (Ch. 7
as .is founded on any supposed analogy to deeds, altogether fails.
Then is there any established rule of evidence or practice in the ad-
ministration of justice, that, where parol documents are produced
leading to one result, it is not competent to contradict them and show
that the real truth is not that which the documents import? I think
that there is no such rule. With respect to a receipt not under seal,
there is no doubt that evidence is admissible to contradict it, and show
that no money passed. In the course of the argument, Mr. Brett
suggested the case of a person who gives a receipt to another, to
enable him to show that no claim can be made upon him by the per-
son giving the receipt, and in that way obtains money. Such a re-
ceipt would no doubt have all the effect it was intended to have : as
between the person to whom it was given and the person to whom it
was shown it would be conclusive evidence of payment though no
money was paid ; but as between the former and the person giving
the receipt, it might be shown that no money passed. What fell from
Lord Ellenborough in the case of Alner v. George, 1 Camp. 392, viz.,
that a receipt in full, where the person who gave it was. under no
misapprehension and can complain of no fraud or imposition, is bind-
ing upon him," means, where the receipt in full is given as and for
a real receipt and discharge. I can well understand that there may be
cases where the transaction is of such a fraudulent character that a
Court of Justice will not inquire about it; for instance, if two per-
sons have committed a robbery and proceed to divide the stolen goods,
neither a Court of law or equity would interfere or recognise any
agreement as to what share each was to have in such a transaction.
And I can well understand that there may be cases falling short of
felony where a similar doctrine would hold on the ground that the
Court will not entertain a transaction which makes it necessary for
them to recognise a crime. It may be, that the entire doctrine which
Mr. Brett contends for would be applicable where it is necessary for
a Court of law to tolerate, and as it were encourage, a matter which in
itself constitutes a criminal offence. But I am by no means prepared
to carry that doctrine to every possible transaction where imposition
is practised by the parties. * * *
Ciianxell, B. * * * In order to divest the property from the
plaintiff, it was necessary for the defendant to show either a transfer
by gift or by sale. A mere delivery of the goods would not prevent
the person delivering them from explaining in what sense that took
place, so as to show that there was no intention of vesting the prop-
erty. The invoice, receipt, and delivery of possession were only evi-
nce of a sale, though no doubt they were matters from which a sale
might be inferred, and which, unexplained, would call upon the jury
to find a sale. Then it is said that when a party is setting up, not an
act done and complete as in the case of a deed, but evidence of a fact,
a part of the transaction only can be looked at and not the whole, and
Sec. 1) CONTRADICTING INSTRUMENTS 1017
that all that part must be excluded which shows that the parlies may
have been guilty of fraud. In my opinion that is not a correct
view. * * *
Rule discharged. 18
GRIERSON v. MASON.
(Court of Appeals of Now York, 1875. GO N. T. 894.)
AIiller, J. Upon the trial of this case there was evidence to show
that on the 1st of May, 1870, the defendant entered into the employ-
ment of John S. Cropper & Co., and upon their sale and assignment of
the business, continued in the plaintiff's employment by virtue of a
verbal agreement that he was to receive a certain commission upon
the sale of goods, which should amount to at least the sum of $1,500
a year.
To contradict this evidence a written agreement 10 was introduced by
the plaintiff, bearing date April 30, 1870, signed by the firm of J. S.
Cropper & Co., to the effect that the defendant was to receive a com-
mission of five per cent, upon the sales made. It also appeared that the
defendant drew the instrument, that it was executed by the firm with-
in three or four months after the commencement of his employment,
and as he testifies, it was made, and the referee so finds, with suffi-
cient evidence to sustain the finding, to induce one Woods to advance
money upon the goods, and that it was given to Woods and kept by
him. The question is, under the foregoing facts, whether parol proof
of the purpose for which the instrument was executed was competent,
and the referee erred in giving effect to it as he did in his report.
The object of the testimony was to show that the instrument was
executed for a specific purpose, and that purpose being accomplished,
was of no effect in changing the contract previously made with the de-
fendant. I think that it was competent evidence for this purpose. The
defendant had made out a contract. The plaintiff proved an instrument
which altered the contract, and the defendant had a right to prove that
the instrument introduced was not intended as an alteration of the
contract, but with a view of accomplishing a particular purpose. S
evidence was not given to change the written contract by parol, but to
establish that such contract had no force, efficacy or effect. That it was
See Filkins v. Whyland. 24 N. Y. 338 (1^02).
i8 The agreement in question w. oiiows:
'•This agreement, made this the 30th day of April. L870, betwe*
Cropper .Sc Co., of Newark, New Jersey, and Thomas F. Mason, of Brooklyn,
New York, the said John s. Cropper & Co. agree to give the said Thomas F.
Mason the sole and exclusive right to sell all the goods manufactured by them
:it such prices and on such terms as they may from time to time determine,
and the said Thomas F. Mason is to receive as commission Bve (5) per
commission on buch, and make returns on the first of each month of all sales.
"John s. Cropper A Co."
1018 the "parol evidence" rule Ch. 7)
not intended to be a contract, but merely a writing to be used in induc-
ing Woods to make advancements upon the goods. This is in avoid-
ance of the instrument and not to change it, and I do not see why the
testimony was not as competent in this case as it would be to show
that a written instrument was obtained fraudulently, by duress, or in an
improper manner. Such evidence does not come within the ordinary
rule of introducing parol evidence to contradict written testimony, but
tends to explain the circumstances under which such an instrument
was executed and delivered, or to show that it was canceled or sur-
rendered. It would, I think, have been proper to show that the in-
strument was given up, and equally so that it did not constitute the
entire contract, as it was only for a special purpose. There are nu-
merous cases in the books where the design and object of an instru-
ment embodying the main portion of an oral agreement may be shown,
and it is held that a receipt for goods changes the obligation of a pre-
ceding parol agreement. Blossom v. Griffin, 13 N. Y. 569, 67 Am.
Dec. 75. It is also held that the purpose for which a writing was
executed may be proved by parol when not inconsistent with its terms.
See Seymour v. Cowing, *40 N. Y. 532. This case is far stronger than
any cited, because the evidence was a perfect answer to the writing,
and showed it had no application to the agreement.
There was no error on the trial, and the judgment should be af-
firmed, with costs.
All concur.
Judgment affirmed. 20
WILLIAMS v. JONES.
(Court of King's Bench, 1826. 5 Barn. & C. 108.)
Assumpsit upon an agreement, dated the 11th of November, 1822,
whereby plaintiff, "in consideration of £250. paid by the defendant, and
of £100. to be paid by defendant within two years from the date there-
of, agreed to take T. Jones, the defendant's son, into partnership with
him, as attornies and solicitors, and to give him a moiety of the profits
of the partnership, and of the profits arising from the hundred court
of Werrall, of which the plaintiff was lord, and a moiety of the royal-
ties." The partnership to continue for ten years. Breach, non-payment
of the £100. Plea, non-assumpsit. At the trial before Warren, C. J.,
of Chester, at the Spring assizes, 1825, for that city, the plaintiff prov-
ed the agreement as set out in the declaration, but it appeared by the
cross examination of his witnesses that the defendant's son was not ad-
mitted an attorney until April, 1823. For the defendant it was con-
tended, that the agreement was illegal, as constituting a partnership
\n. I bo in Coffman v. Malone, 98 Neb. 819, i:,i \. \\\ tl-c. i, k. a. L917B,
258 (1915), annotated.
Sec. 1) CONTRADICTING INSTRUMENTS 1019
between an attorney and a person who had not at that time been admit-
ted. For the plaintiff evidence was offered that the agreement was not
put in force before the admission of the defendant's son. The learned
Judge thought the evidence inadmissible! and directed a nonsuit. In
Easter term a rule nisi for a new trial was granted, and now
Cross, Serjt., was called upon to support it. No time being fixed for
the commencement of the partnership, it was open to the plaintiff to
give parol evidence upon that point.
Baylky, J. Where a written contract has been entered into, the
court must look to that in order to ascertain the meaning of the par-
ties; and we are not at liberty to admit the introduction of parol evi-
dence to show that the agreement was in reality different from that
which it purports to be. The declaration in this case describes the
contract as forming a partnership to commence in pra;senti, and as
made between parties, then attornies, and the agreement corresponds
with the description given in the declaration. It is described as an
absolute contract, but it is now contended that it was conditional, to
commence in futuro, if T. Jones should be admitted an attorney. But
it is impossible to put such a construction upon it. Here, then, there
was a bargain giving a present share of the profits of an attorney's
business to a person not admitted ; that was illegal, according to the
22 G. 2, c. 46, s. 11.; and even if the evidence had been admissible, to
show that the agreement was to take effect in futuro, the agreement
as proved would not correspond with the description of it in the decla-
ration, and on that ground the nonsuit would be right. This rule must,
iherefore, be discharged.
Holroyd, J. I am of opinion that the nonsuit in this case was
right. Whatever may have been the intent of the parties, which I col-
lect to have been that the instrument should take effect immediately, at
all events the law gives it that effect, no time for its commencement be-
ing mentioned in the instrument. Parol evidence was properly admit-
ted to show that the agreement was illegal, but not for the purpose of
varying the contract, by adding to or diminishing from it. It is con-
tended for the plaintiff that evidence should have been admitted, which
certainly would have shown the contract not to be illegal, but would at
the same time have shown it to be differenl from the legal import of
the instrument declared upon. If the evidence had merely g<>nc to re-
but the illegality, I should have thought it admissible ; but it went fur-
ther, and then two objections arose to it ; first, it went to show that
an agreement apparently absolute was really conditional; secondly
effect was to add by parol to an agreement, which according to Boydell
v. Drummond, 11 East, 142, could not be valid, unless in writing, ii
much as it was not to be performed within a year from the making
of it.
LittlEdat.K, J., concurred.
Rule discharged. ■
1020 the "parol evidence" rule Ch. 7j
WILSON v. POWERS et al.
(Supreme Judicial Court of Massachusetts, 1881. 131 Mass. 539.)
Contract upon a joint and several promissory note for $5,000, dat-
ed February 2, 1874, payable to the plaintiff or order, "with inter-
est at the rate of twelve per cent, per annum, payable semiannually in
advance," and signed by Philip S. Walsh as principal and by the de-
fendants as sureties. The defence relied upon was that the defendants
had been discharged from their liability as sureties by an instrument,
dated July 5, 1877, and signed by the plaintiff, the material part of
which was as follows : "And I hereby agree to continue or extend the
time of final payment for three additional years, or until February in
the year of our Lord 1880. The conditions as expressed in said mort-
gage deed to be complied with. That is also required that the said
Walsh shall pay when requested all interest now due and continue
to pay at the rate of seven and three tenths per cent, interest semian-
nual after February, 1877, and an addition to be applied to the principal
of 4.7 per cent as aforesaid."
After the former decision, reported 130 Mass. 127, the- case was
tried in the Superior Court before Allen, J. There was evidence tend-
ing to show that the instrument was under seal when delivered. The
plaintiff contended that the instrument was delivered to Walsh as a
proposal merely, and that it was not to take effect as a contract until
assented to by the sureties. The jury returned a verdict for the plain-
tiff, and found specially that the instrument -was not delivered as a
completed agreement ; and the defendants alleged exceptions to the ad-
mission of certain evidence, bearing upon this issue, which appears in
the opinion.
Devkns, J. At the trial, the defendants relied upon a certain in-
strument as discharging them from their obligation as sureties, by
which Wilson, the promisee of the note, as it was contended, agreed to
extend the time of payment of the note to the principal defendant with-
out the assent of the sureties. It was contended by the plaintiff, that
the instrument signed by Wilson was delivered by him as a proposi-
tion merely, and upon the agreement that it should become binding only
upon the assent of the sureties thereto. The manual delivery of an in-
strument may always be proved to have been on a condition which has
not been fulfilled in order to avoid its effect. This is not to show any
modification or alteration of the written agreement, but that it never
ame operative, and that its obligation never commenced. Whitaker
v. Salisbury, 15 Pick. 534; Davis v. Jones, 17 C. B. 625; Murray v.
Earl of Stair, 2 1'-. & C. 82; Pym v. Campbell, 6 El. & 151. 370; Wal-
lis v. Littell, 11 C. B. (N. S.) 369
Evidence was admitted of the conversation which took place at the
time of the actual delivery of the instrument to Walsh by Wilson, and
Sec. 1) CONTRADICTING INSTRUMENTS 1021
also of a previous conversation, before the date of the instrument and
before it was written, to the effect that it should become binding only
upon the assent of the sureties. The defendants contend that, even if
all that took place at the time of the delivery was admissible as an
explanation thereof, and as a part of the res . yet that the evi-
dence of the previous conversation was erroneously admitted. But a
previous conversation might, and in this case apparently did, have a
direct bearing upon the question whether the delivery was conditio
Wilson at the time of delivery stated that "t ! 3 his proportion, and
it was in writing;" and the previous conversation clearly related to
such an instrument as a proposal only. Whether the delivery of a
paper is absolute or conditional is a question of fact. If it were shi
that two parties had agreed that an instrument should be thereafter
prepared to take effect only upon compliance with a certain condition
or the occurrence of a certain event, and thereafter such an instrument
were prepared and delivered, even if nothing was said at the time of
the actual deliver}'-, it would be for the jury to say whether such de-
livery did not take place under and in pursuance of the previous
agreement. That a delivery should be conditional, it is not neces
that express words to that effect should be used at the time. That
conclusion may be drawn from all the circumstances which properly
form a part of the entire transaction, whether in point of time they
precede or accompany the delivery. In Murray v. Earl of Stair, 2 B.
& C. 82, a subscribing witness to a bond stated that it was delivered
by the obligor as his deed, but that before and at the time of the exe-
cution it was agreed that it should remain in his (the subscribing wit-
ness's) hands until the death of A. B. and until certain securities were
given up, and that the bond was given to him on that condition. It
was held that it was then a question of fact for the jury, upon the
whole evidence, whether the bond was delivered as a deed to take
effect from the moment of delivery, or whether it was delivered upon
the express condition that it was not to operate as a deed until the
death of A. B., and until the securities were given up.
The defendants have no just ground of complaint on account of the
evidence admitted.
Exceptions overruled. 21
21 Accord: Oilman v. Gross. 97 Wis. 224. 72 X. W. 885 (1897), that n sub-
scription paper for corporate stock should not be binding until a certain num-
ber of shares were sold ; Trumbull v. O'Hara, 71 Conn. 172, 11 Ail. 54(i (]
nissory note should nor he binding until a certain i \ i t ; Ware v.
Allen, 12 0, 9 Sup. Ct. 174, 32 L. Ed. 563 (1888), thai a contract should
not be binding until approved by an attorney; Pym v. Campbell, •; i:. & b.
370 lis- ,e as above; Stiebel v. Grosberg, 202 N. V. 266, 95 N. E. 692,
36 L. R. A. (N. S.) 1117. Ann. C-a<. 1912D, L305 (1911), that a release under
seal was not to take effect until a condition happened.
See. also. Wallis v. hitiell. n C. B. (N. S.) 369 (1861), to the effect that the
fact that a payment contemplated by the Instrument had been made was nol
conclusive, but simply evidence tending to show that the writing did tal<<-
effect
1022 THE "rAROL evidence" rule (Ch. 7
BEARD v. BOYLAN.
(Supreme Court of Errors of Connecticut, 1S90. 59 Conn. 181, 22 Atl. 152.)
Andrews, C. J. 22 The plaintiff, being a creditor of the defendant,
signed a composition agreement with sundry other creditors, as fol-
lows : "Whereas, Henry Boylan, of Derby, is in embarrassed financial
circumstances, and is unable to pay his debts in full, and desires to
effect a compromise with his creditors without the expense and delay
of settling in the probate court as an insolvent estate, and proposes to
pay twenty per cent, on all unsecured and unpreferred claims on or
before December 1st, 1888; and whereas we, the undersigned, credi-
tors of said Boylan, are willing to accept said twenty per cent, in full
of our respective claims : Now, therefore, we, the undersigned, being
creditors of said Boylan to the amounts set opposite our names re-
spectively, hereby, each in consideration of the like agreements of the
others, signers of this contract, agree with each other, and with said
Boylan, that we will accept twenty per cent, of our respective unsecured
claims against said Boylan, if paid on or before December 1st, 1888,
in full settlement and discharge of said claims. Derby, Sept. 22d,
1888." After signing this agreement the plaintiff received and accepted
the 20 per cent, therein stipulated. Subsequently he brought the pres-
ent suit, in which he claims to recover the whole amount of his orig-
inal debt, less the twenty per cent, for which he gives credit.
The defendant's answer sets up the composition agreement, the pay-
ment of the 20 per cent., and the receiving thereof by the plaintiff, in
bar of the action. The plaintiff's reply admits the execution and de-
livery of the agreement, and the receipt of the per cent, therein named.
The remaining part of the reply, so far as it is necessary to be noticed,
is as follows: "Par. 6. The plaintiff signed said composition agree-
ment in consideration that it should be signed and agreed to by all
the creditors who held unsecured claims against the defendant at the
time the plaintiff signed said agreement, and that it should be void
unless so signed by said creditors." "Par. 9. Long after the 7th day
of December, 1888, and before the bringing of this suit, the plaintiff
learned for the first time that said composition agreement was not
signed by all the creditors of the defendant who held unsecured claims
against the defendant when the plaintiff signed said agreement."
The defendant demurred to paragraph 6, "because the same, and
the matters therein contained, are inconsistent with and contradictory
of the said composition agreement;" and to paragraph 9, "because the
e, and the matters therein contained, are immaterial, and irrelevant
to the issues in this case." * * *
The question presented by the demurrer is whether or not it would
be competent to prove the facts alleged in these paragraphs of the
Pari of opinion omitted.
Sec. 1) CONTRADICTING INSTRUMENTS l ( ^- ;;
reply for the purpose of varying the effect of the composition agree-
ment. If so, then the demurrer was properly overruled; otherwise,
there was error in so doing. While the law undoubtedly requires the
utmost good faith in the making and in the performance of a composi-
tion agreement between a debtor and his creditors, and any advani
by one creditor over any other, any concealment by the debtor, or any
preference will vitiate the entire agreement, yet the agreement itself,
if in writing, must be construed by the same rules as any other writ-
ten contract. "Where a written document is resorted to by the parties
for the expression of their conclusions after a series of conferences,
such document will be regarded as expressing their final views, and as
absorbing all other parol understandings, prior or contemporaneous.
To permit evidence of prior, or even of contemporaneous, parol con-
ditions to qualify the written document would be to not only substitute
media peculiarly fallible — recollections of witnesses as to words — for
a medium whose accuracy the parties affirm, but often to substitute an
abandoned for an adopted contract. Hence all prior conferences are
regarded, unless there be fraud, as merged in such case in the final
document." Whart. Ev. § 1014; 1 Greenl. Ev. § 275 ; Dean v. Mason,
4 Conn. 428, 10 Am. Dec. 162; Glendale Woolen Co. v. Protection
Ins. Co., 21 Conn. 37, 54 Am. Dec. 309; Fitch v. Iron Works, 29
Conn. 82 ; Galpin v. Atwater, Id. 97.
The argument of the plaintiff is that proof of the allegations in the
sixth paragraph of his reply would not contradict the composition
agreement, because, he says, the matters by him there alleged are al-
ready in that agreement by fair implication. He says, and says truly,
that "contracts are to be taken and construed according to the intent
of the parties, and this intent should be ascertained from the whole
instrument ; and that it is a general principle, applicable to all instru-
ments and agreements, that whatever may be fairly implied from the
terms and language of the instrument is, in judgment of law, contained
in it." These are well-recognized principles. But does this case fall
within them? The admissions of the reply — namely, the execution of
the composition agreement, and the receipt by him of the agreed per
cent. — show that the agreement was at one time a valid and binding
one. The sixth paragraph alleges a condition upon which it was to
be void, — that is, a condition subsequent, — and the plaintiff asks the
court to supply this condition by implication. It seems to us that it
cannot be done. Implication supplies words in a written contract for
the purpose of making complete something which the words used leave
incomplete. It extends only so far as may be necessary to ascertain
what Hie parties intended by the language they have used. It can n<
put an additional term or condition into the contract. The question
is never what the parties may have secretly and in fact intended, but
what meaning did they intend to convey by the language they have
used in the written instrument? When a contract is reduced to writ-
ing and is complete in itself, the law presumes the writing to contain
1024 the "parol evidence" rule (Ch. 7
the whole agreement. There is nothing left for implication. This
rule is very compactly stated by the court in Stone v. Rockefeller, 29
Ohio St. 625, a case upon the guaranty of a note, as follows: "The
law will not supply any condition which is not incorporated into the
agreement, or fairly implied from the language used ; and, in the ab-
sence of fraud, accident, or mistake, it is presumed conclusively that
the terms of the contract, as agreed between the parties at the time,
are fully expressed in the written guaranty." Now, it seems to us
that this is a case for the application of the presumption that the
whole of the agreement was committed to writing. No fraud, acci-
dent, or mistake is suggested. The writing is apparently complete.
If a condition upon which the instrument was to be void was in fact
agreed on, it is incredible that the parties should not have inserted it in
the writing.
There is error in the judgment 23 of the court of common pleas,
and it is reversed. 24
Loomis, Seymour, and Torrance, JJ., concur. Carpenter, J.,
dissents.
WIGGLESWORTH v. DALLISON et al.
(Court of King's Bench, 1779. 1 Doug. 201.)
This was an action of trespass for mowing, carrying away, and con-
verting to the defendant's own use, the corn of the plaintiff, growing in
a field called Hibaldstow Leys, in the parish of Hibaldstow, in the coun-
ty of Lincoln. The defendant Dallison pleaded liberum tenementum,
and the other defendant justified as his servant. The plaintiff replied,
that true it was that the locus in quo was the close, soil and freehold
of Dallison; but, — after stating that one Isabella Dallison deceased,
(being tenant for life,) and Dallison, the reversioner in fee, made a
lease on the 2d of March, 1753, by which the said Isabella demised,
and the said Dallison confirmed, the said close to the plaintiff, his
executors, administrators, and assigns, for 21 years, to be computed
from the 1st of May, 1755, and that the plaintiff, by virtue thereof
entered and continued in possession, till the end of the said term of
21 years, — he pleaded a custom, in the following words, viz. "That,
within the parish of Hibaldstow, there now is, and from time whereof
the memory of man is not to the contrary, there hath been a certain
ancient and laudable custom, there used and approved of, that is to
•, that every tenant and fanner of any lands within the same parish,
for any term of years which hath expired on the first day of May in
2»The trial court had sustained 1 1 1 * - demurrer to the reply, but this ruling
ed by tin; court of common pleas.- /'</.
Bee, also, Smith v. Mathis, 174 Mich. -(;•_>, no N. W. 543 (1913).
Sec. 1) CONTRADICTING INSTRUMENTS 102.1
any year, hath been used and accustomed, and of right ought to 1
take, and enjoy, to his own use, and to reap, cut and carry away, when
ripe and fit to be reaped and taken away, his way-going crop, thai is to
say, all the corn growing upon the said lauds which hath before the
expiration of such term been sown by such tenant, Upon any part of
such lands, not exceeding a reasonable quantity thereof in proportion
to the residue of such lands, according to the course and of hus-
bandry in the same parish, and which hath been left standing and grow-
ing upon such lands at the expiration of such term of years." He then
stated that, in the year 1775, he sowed with corn part of the said close,
being a reasonable part in proportion to the residue thereof according
to the course and usage of husbandry in the said parish, and that the
corn produced and raised by such sowing of the corn so sown as afore-
said, being the corn in the declaration mentioned, at the end of the
term, and at the time of the trespass committed, was standing and
growing in the said close, the said time not exceeding a reasonable
time for the same to stand, in order to ripen and become fit to be
reaped, and that he was during all that time, lawfully possessed of the
said corn, as his absolute property, by virtue of the custom. The
defendant, in his rejoinder, denied the existence of any such custom,
and concluded to the country. The cause was tried before Eyre, Baron,
at the last Assizes for Lincolnshire, when the jury found the custom,
in the words of the replication.
Baldwin moved in arrest of judgment, that such a custom was re-
pugnant to the terms of the deed, and, therefore, though it might be
good in respect to parol leases, could not have a legal existence in the
case of leases by deed.
A rule to shew cause was granted.
The case was argued on Tuesday the 8th of June, by Hill, Serjeant,
Chambre, and Dayrell, for the plaintiff, and Cust, Baldwin, Balguy, and
Gough, for the defendants; when three objections were made on the
part of the defendant, viz. 1. That the custom was unreasonable. 2.
That it was uncertain. 3. That, (as had been contended on mo\
for the rule,) it was repugnant to the deed under which the plaintiff
had held.
Lord Mansfield. We have thought of this case, and we are all
of opinion, that the custom is good. It is just, for he who sows, ought
to reap, and it is for the benefit and encouragement of agriculture. It
is, indeed, against the general rule of law concerning erablem<
which are not allowed to tenants who know when their term i
because it is held to be their fault or folly to have sown, when they
knew their interest would expire before they could reap. Hut the
custom of a particular place may rectify what otherwise would be
imprudence or folly. The lease being by (\ccd does not vary the ca
The custom does not alter or contradict the agreement in the lease ; it
iiint.Kv— 65
1026 the "parol evidence" rule (Ch. 7
only superadds a right which is consequential to the taking, as a heriot
may be due by custom, although not mentioned in the grant or lease. 25
The rule discharged. 26
HUTTON v. WARREN.
(Court of Exchequer, 1S36. 1 Mees. & W. 4G6.)
Assumpsit to recover the customary allowances for work done by
the plaintiff on the leased premises shortly before the expiration of his
term. After verdict for plaintiff a rule nisi was obtained to enter a
non-suit on the ground that the lease excluded the custom. 27
Parke, B. It appeared on the trial that the plaintiff took the farm
of the late incumbent, the father of the defendant, on the 2d of Jan-
uary, 1811, by a lease under seal, comprising the tithes of the parish
also, at the rent of £150. for the farm, and £200. for the tithes, payable
at Michaelmas and Lady Day, for the term of six years from Lady
Day, 1811, if the lessor should so long continue incumbent. The
plaintiff occupied until October, 1832, when the incumbent resigned,
and the defendant, his son, succeeded him in the living. The plaintiff
continued to occupy the farm and tithes, paying the same rent, at the
same times, until Lady Day, 1834, when he quitted, in pursuance of a
notice given to him by the defendant; and he claimed in this action
the allowances for seed and labour due to the off-going tenant by the
custom of the country.
The defendant resisted the claim, on the ground that he held under
the terms of the written lease, and that by those he was not entitled
to any such allowances.
It was proved, that, by the custom of the country, a tenant was
bound to farm according to a certain course of husbandry for the
whole of his tenancy, and at quitting was entitled to a fair allowance
for seed and labour on the arable land ; and was obliged to leave the
manure, if the landlord would purchase it. * * *
We are of opinion that this custom was, by implication, imported
into the lease. 28
Tt has long been settled, that in commercial transactions, extrinsic
evidence of custom and usage is admissible to annex incidents to
written contracts, in matters with respect to which they are silent.
2B Vide Doe v. Snowden, C. B. M. 19 Geo. Ill, 2 Blackst. 1225 (1779), where
it is said by the court thai If there Is a taking from old Lady Pay (April
mid the custom of mosl '^indies would entitle the lessee to enter upon the ara-
ble al Candlemas (February 2d) to prepare tor the Lent corn, without any spe-
cial words tor thai purpose; i. <••. in a written agreement for seven years, for
the court were Bpeaking of such an agreement.
n appears from the reporter's note that the judgment for the plaintiff
was affirmed in the Exchequer Chamber, in 1781.
27 statement condensed and part of opinion omitted.
h, the omitted pa age the courl held that the tenant continued to hold
;, pro> Ided In the leai i
SeC. 1) CONTRADICTING INSTRUMENTS 1027
The same rule has also been applied to contracts in other transactions
of life, in which known usages have been established and prevailed
and this has been done upon the principle of presumption that, in
such transactions, the parties did not mean to express in writing the
whole of the contract by which they intended to be bound, but a con-
tract with reference to those known usages. Whether such a relaxa-
tion of the strictness of the common law was wisely applied, where for-
mal instruments have been entered into, and particularly leases under
seal, may well be doubted ; but the contrary has been established by
such authority, and the relations between landlord and tenant have
been so long regulated upon the supposition that all customary obliga-
tions, not altered by the contract, are to remain in force, that it is too
late to pursue a contrary course ; and it would be productive of much
inconvenience if this practice were now to be disturbed.
The common law, indeed, does so little to prescribe the relative du-
ties of landlord and tenant, since it leaves the latter at liberty to pur-
sue any course of management he pleases, provided he is not guilty of
waste, that it is by no means surprising that the Courts should have
been favourably inclined to the introduction of those regulations in
the mode of cultivation which custom and usage have established in
each district to be the most beneficial to all parties.
Accordingly, in Wigglesworth v. Dallison (1 Doug. 201), afterwards
affirmed in a writ of error, the tenant was allowed an away-going crop,
though there was a formal lease under seal. There the lease was en-
tirely silent on the subject of such a right, and Lord Mansfield said
that the custom did not alter 29 or contradict the lease, but only super-
added something to it. * * *
The next reported case on this subject is that of Webb v. Plummer
(2 B. & Aid. 750), in which there was a lease of down land, with a
covenant to spend all the produce on the premises, and to fold a
flock of sheep upon the usual part of the farm ; and also, in the last
year of the term, to carry out the manure on parts of the fallowed
farm pointed out by the lessor, the lessor paying for the fallowing land
29 Lord Campbell, In Humphrey v. Dale, 7 E. & B. 2C6 (1S57): "In a certaiu
sense every material Incident which is added to a written contract varies ir.
makes it different from what it appeared to be. and so far is inconsistent with
it. If, by the side of the written contract without, you write the same con-
tract with the added incident, the two would seem to import different obli-
gations, and be different contracts. To take a familiar instance by way of
illustration: On the face of a bill of exchange at three months after date the
acceptor would be taken to bind himself to the payment precisely at the end
of the three months; but, by the custom, he is only bound to do so at the
end of the days of grace, which vary, according to the country in which the
lull is made payable, from three up to fifteen. The truth is that the principle
on which the evidence is admissible is that the parties have not set down on
paper the whole of their contract in all its terms, but those only which v.
necessary to be determined in the particular case by specific agreement, and
which of course might vary Infinitely, leaving to implication and tacit under-
standing all those general and unvarying Incidents which a uniform UE
would annex, and according to which they must in reason he understood to
contract unless they expressly exclude them."
1028 the "parol evidence" rule (Ch. 7
and carrying out the dung, but nothing for the dung itself, and
paying for grass on the ground, and threshing the corn. The claim
was for a customary allowance for foldage, (a mode of manuring the
ground,) but the Court held, that, as there was an express provision
for some payment on quitting for the things covenanted to be done,
and an omission of foldage, the customary obligation to pay for the
latter was excluded. No doubt could exist in that case but that the
language of the lease was equivalent to a stipulation that the lessor
should pay for the things mentioned and no more.
The question then is, whether, from the terms of the lease now un-
der consideration, it can be collected that the parties intended to ex-
clude the customary obligation to make allowances for seed and labour.
The only clause relating to the management of the farm (except the
covenant to repair) is one which stipulated that the plaintiff shall
spend and consume on the farm three-fourths of the hay and straw
arising not onby from the farm itself, but from the demised tithes of
the whole parish, and spread the manure, leaving such as should not
be spread at the end of the term for the use of the landlord, on pay-
ing a reasonable price for the same. This provision introduces and
has a principal reference to a subject to which the custom of the
country does not apply at all, namely, the tithes, and imposes a new
obligation on the tenant dehors that custom, and then qualifies that
obligation by an engagement on the landlord's part to give a remunera-
tion, by re-purchasing a part of the produce in a particular event. It
is by no means to be inferred from this provision that this is the only
compensation which the tenant is to receive on quitting. If, indeed,
there had been a covenant by the tenant to plough and sow a certain
portion of the demised land in the last year, being such as the cus-
tom of the^ country required, he being paid on quitting for the plough-
ing, or to plough, sow, and manure, he being paid for the manuring,
the principle of expressum facit cessare taciturn, which- governed the
decision in Webb v. Plummer, would have applied; but that is not
the case here. The custom of the country as to the obligation of the
tenant to plough and sow, and the corresponding obligation of the
landlord to pay for such ploughing and sowing in the last year of the
term, is in no way varied. The only alteration made in the custom is,
that the tenant is obliged to spend more than the produce of the farm
on the premises, being paid for it in the same way as he would have
been for that which the custom required him to spend.
\Yc are therefore of opinion that the plaintiff is entitled to recover,
and the rule must be discharged.
Rule discharged. 30
For a collection of casos where the custom was thought to he excluded
by 'in- provisions of the writing, sec city of Covington v. Kanawha Coal &
Co., 121 Ky. G81, 89 S. W. 1120, 3 L. R. A. (N. S.) 248, 123 Am. St. Rep.
219 (1906).
It i- <.!>\i<>us that the problem is one of construction, and that in a doubtful
case little help is afforded by the view that may have been taken of a differ-
SeC. 1) CONTRADICTING INSTIMM I. NTS 1( !
KNAPP v. HARDEN.
(Court of Exchequer, 1835. l Qale, 47.)
Assumpsit for goods sold and delivered, and for work and labour.
Pleas. 1st. Non assumpsit. 2dly. That the goods were sold on a
contract, in which the times of payment were stipulated; viz. "£100.
in the month of November, 1834; £100. other part thereof, on the
10th day of May, 1835; and the remainder in the course of the year.
Replication, denying the contract, and similiter. The action was com-
menced on the 22d November. At the trial, before Gurney, B., at the
sittings in Middlesex, in Michaelmas Term, it was proved that the
work and labour had been done; that the plaintiff, before he under-
took the work, had written a letter to the defendant, specifying the
prices to be charged. The letter was sent to the defendant's sur .
or, Gardiner, a witness at the trial, which he communicated to the
defendant, who thereupon wrote a letter to the witness, stating that
he consented to the terms, if the money were to be payable at the
periods stated in the plea. At a conversation between Gardiner and
the plaintiff, this letter was produced to, and read by, the plaintiff,
witness observing, that plaintiff might consider the month of Novem-
ber to be the 1st of November. To this the plaintiff consented. The
original letter, containing the prices, was afterwards signed by the
defendant. Gurney, B., giving leave to the plaintiff to move to enter
a verdict, on the ground that the evidence was inadmissible, left it
to the jury whether the times of payment were part of the agreement
between the parties. — Verdict for the defendant.
Chandless now moved to enter a verdict for the plaintiff. The
letter containing the prices, signed by the plaintiff and the defendant,
was a complete contract in writing, and the effect of it could not be
varied by parol evidence of a contemporaneous agreement. Boydell
v. Drummond (11 East, 142) — [Parke, B. — The two letters are to
be taken together.] — The second letter was signed by the defendant
only, and could not be connected with the other except by parol, there-
fore it came within the degree of oral evidence.
ParkE, B. It is quite clear the letter did not in itself constitute an
agreement : it was not meant to be so by the parties.
At.dErson, B. The signature to the letter was only to authenticate
the amount.
Rule refused.
ent contract. The difficulty cannot he soivo.i by tho easy assumpti tho
custom is inconsistent, and therefore excluded, vcbei ntly
calls for something different, because in many Instances it is undeniably true
that the custom is actually applied to just roch contracts. — /
1030 the "parol evidence" rule (Ch. 7
WILSON v. SHERBURNE.
(Supreme Judicial Court of Massachusetts, 1850. 6 Cush. 68.)
This was an action on a promissory note dated February 14th, 1849,
by which the defendant promised the plaintiff to pay him or his order
one hundred and fifty dollars on the first day of May then next.
There was an indorsement on the note, under date of February 21st,
1849, of fifty dollars and thirty-six cents.
The defendant pleaded the general issue, and specified in his defence
that the consideration of the note was the sale of a fish-stand in
Springfield, with an express agreement, on the part of the plaintiff,
not to be engaged in the fish business in Springfield, in competition
with the defendant, for one year thereafter; and that the plaintiff had
broken this agreement, by engaging in the fish business, within the
year, greatly to the damage of the defendant.
It was in evidence, for the defendant, that the consideration of the
note, as to the sum of fifty dollars, and thirty-six cents, which had
been indorsed thereon, before the commencement of the action, was
the sale of the stand and personal property belonging to it ; and as to
the residue, the plaintiff's agreement not to be engaged in the fish busi-
ness in Springfield for one year; that the contract of sale and the
agreement not to be engaged in the fish business were made at the
same time; and that there was a contract in writing entered into be-
tween the parties. The defendant, having proved the loss of the
written contract, called a witness to testify to its contents, who stated
that the plaintiff sold to the defendant on the same terms and con-
ditions, on which a sale of the same property had previously been made
between other parties, and evidenced by a written contract, which was
produced ; but the witness could not say, that there was anything in
the written contract between the parties about the good-will of the
business.
The defendant then offered parol evidence to prove, that at the
time of the sale, there was also a verbal contract made between the
parties, that the plaintiff would not engage in the fish business in
Springfield for one year ; that this agreement formed a part of the
consideration of the note sued for, and that the plaintiff had vio-
lated it.
The plaintiff objected, that the written contract between the parties
having referred to, and made a part of their agreement, the terms and
conditions of a written contract previously made between other par-
ties, parol evidence was not admissible to show other terms and con-
ditions. The defendant contended, that the agreement, which he of-
fered to prove, was independent of the written contract.
The presiding judge (Byington, J.) of the court of common pleas,
before whom the case was tried, rejected the evidence; and a verdict
being thereupon rendered for the plaintiff, the defendant excepted.
Seel) CONTRADICTING INSTRUMENTS 1031
By the Court. The cases cited by the counsel of the respective
parties show how very difficult it is to mark with precision any
satisfactory and definite boundary line, between the classes of cases in
which parol evidence is or is not admissible, where the parties have
made a written contract in reference to the general subject of agree-
ment between them.
We are of opinion, that the evidence here offered was properly ex-
cluded, inasmuch as the defendant must take the position, that the sale
of the fish-stand and the personal property attached to it, and the stip-
ulation that the defendant [plaintiff?] would not engage in the busi-
ness, within the limits of Springfield, for the term of one year, were
part of or formed the original consideration. But the written con-
tract signed by the parties does not show any such contract not to sell
fish in Springfield for one year. The parties having stipulated in
writing, it is not competent, by parol evidence, to add to or enlarge it.
The testimony was properly excluded.
Exceptions overruled. 31
HARRIS et al. v. RICKETT.
(Court of Exchequer, 1S59. 4 Hurl. & N. 1.)
Trover by the plaintiffs, as assignees of a bankrupt, to recover the
value of certain property transferred by him to the defendant. After
verdict for defendant, a rule nisi was obtained to enter the verdict for
plaintiffs. 32
The judgment of the court was now delivered by
Pollock, C. B. In this case the plaintiffs sued as assignees of
Forman,- a bankrupt, and claimed certain goods and chattels as such
assignees. The facts were, that the bankrupt had executed a bill of
sale to the defendant of the property in question, which, however, be-
ing for an antecedent debt, and being a conveyance of all the bank-
rupt's property, was prima facie an act of bankruptcy, and therefore
void. But the defendant contended, and the jury found, that at the
time of the loan which constituted the debt, it had been agreed be-
tween the bankrupt and the defendant that this security should be
given. 33 If so, the case of Hutton v. Cruttwell is an authority to
show that the assignment was valid. But the plaintiffs contended that
it was not open to the defendant to prove this, or that the proof,
when made, was unimportant. The facts that gave rise to the conten-
tion were as follows. The loan was agreed on, and the jury found
that, at the time of the agreement for the loan and as part of it, it was
31 For a contrary view, see Locke v. Murdoch. -JO X. M. 522, 1."1 Pi
L. R. A. 1917B, 267 (1915), where a number of the cases accord and contra are
collected.
3* Statement condensed.
» 3 This agreement was proved by the testimony of the bankrupt
i z :: i
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Sec. 1) CONTRADICTING INSTRUMENTS V
question done for the defendant? " Both of these questions were e
eluded, on the ground that parol proof could not be received, beta
the contract must speak for itself concerning the agreed tin. er-
formance.
The defendant below, in his defense, "offered to show by evidence
that, at the time of making said written contract, it was agreed,
parol, that the work in question should be furnished by the plaintiff
as fast as it might be required by the masons and car; ars, who
should do the work on the building for which such work to It :
nished by the plaintiff was intended, the defendant pre; » in ma
ing such offer, to follow up such evidence by testimony that t
tiff had failed to furnish such work and materials as so agreed, a
failed to furnish them as fast as required by said masons and car-
penters," and to show consequent damage. This also rejected.
It was claimed, on the argument, that this testimony was adm.
ble, on two grounds : First, To remedy a defect in the written agree-
ment by parol ; and, second, To show what was rea - e time.
There is no ground for maintaining that such pr: [ roper to
complete or supplement the written agreement. It is very plain that
an agreement to do a thing within a definite time can never be identical
in spirit or substance with an agreement to do it within a time not
fixed, and which, in law, is to be merely a reasonable time. And
where the written contract is left in that indefinite shape, an agree-
ment to make it definite is an agreement to alter it ; and this can not
be done by any contemporaneous parol understanding. The elemen-
tary rule, excluding parol evidence offered for any such pur' : se. is
so plainly applicable as to need no explanation.
There is much more plausibility in the second ground, which main-
tains the admissibility' of the evidence as bearing on the question of
reasonable time. But it seems to me that it has no real tendency to
show what time was reasonable, either alone, or as a step in natural
connection with any other proof, proposed or relevant.
The supplemental proof, which the defendant below proposed to in-
troduce, was simply proof of a breach of this pare' g :. in :
furnishing articles within the time as promised. That proof we.5 :.-.
doubtedly competent to prove damages in case the court should find
that it was unreasonable not to furnish the iron as fast as required
the workmen, but it could have no possible be son-
ableness of their requisitions. Unless the proof of the parol : 2
ment being made tended to prove of itself that the time tr-
easonable, independent of any binding force in the agreement, it
was rightly ruled out.
It was argued that it had this ten: because the fact that the
parries were willing to agree upon such terms she" -
thought them reasonable. This is in fact claiming for the parol com-
munications the full force of an agreement; and it would be a fair
1034 the "parol evidence" rule (Ch. 7
answer to such a claim to say, that, inasmuch as when they made their
written agreement, by which only they were to be bound, they omitted
this clause from it, it must follow that they were not willing to agree
that it would be reasonable. And this is really the defect in the claim,
that it confounds causes with consequences. If time is reasonable,
it is because circumstances make it so, and not because it is so agreed,
and if parties agree that it is reasonable, it must be presumed that they
are so persuaded by the circumstances, which can not derive any
force or bearing from their opinions, whether' one way or the other.
When a contract is to be performed within a reasonable time, the
law implies that the parties contract in view of all the pertinent facts
that may be mutually known to them, and it requires them to exer-
cise such reasonable diligence as under all then and subsequently ex-
isting circumstances might be fairly expected. When a court or jury
is called upon to decide whether they have complied with what might
have been reasonably expected, there must be proof of such facts as
will show what ought to have been done. Where there has been an
agreement, it must be complied with, whether reasonable or not,
simply because the parties for a lawful consideration have seen fit
to make it. But where the promise made is no promise in law, it must
be regarded as a nullity. To accept it in any shape as a basis or
proof of obligation is to enforce it. * * *
Judgment affirmed. 35
DREW v. WISWALL et al.
(Supreme Judicial Court of Massachusetts, 1903. 183 Mass. 554, 67 N. E. 666.)
Contract for breach of an alleged agreement of the defendants to
construct certain streets upon land in Woburn adjacent to certain lots
purchased by the plaintiff from th,e defendants. Writ dated July 1,
1898.
The answer contained a general denial and also set up the statute of
frauds.
At the trial in the Superior Court, Richardson, J., on motion of
the defendants, ruled that upon all the evidence the plaintiff was
not entitled to recover, and ordered a verdict for the defendants. The
plaintiff alleged exceptions.
BralEY, J. 36 The exceptions do not disclose the reasons, if any,
that were given by the defendants at the trial to support their request
for the ruling made ; but at the argument they relied on two proposi-
tions, only, which we consider in the order presented.
Under the declaration as finally amended, the plaintiff, in order to
«6 Accord: Cameron Coal & Mercantile Co. v. Universal Metal Co., 2G Okl.
615, 110 Pac. 720, 31 L. It. A. (N. S.) 618 (1910), annotated.
36 Part of opinion omitted.
SeC. 1) CONTRADICTING INSTRUMENTS 1035
recover damages, must prove the purchase of and payment for the
land, as well as the agreement by the defendants to construct the
streets, and that, while he had built a house on the estate conveyed,
the defendants had failed to perform their contract. An examination
of the evidence fully recited in the exceptions fails to show any sub-
stantial variance, as matter of law, between these allegations and the
proof offered to sustain them. * * *
It is true that the plaintiffs title to the land comes by deed from the
defendants, which is silent as to such an agreement. But the rule that
a contract in writing cannot be added to or varied by the introduction
of oral stipulations or agreements made before or contemporaneous
with its execution is not violated by holding that the contract proved
by the plaintiff was not merged in the deed, and was independent and
separate, though the sale of the land and building the house furnished
the consideration by which it is supported. Durkin v. Cobleigh, 156
Mass. 108, 30 N. E. 474, 17 L. R. A. 270. 32 Am. St. Rep. 436; Cole
v. Hadley, 162 Mass. 579, 39 N. E. 279; Rackemann v. Riverbank
Improvement Co., 167 Mass. 1, 44 N. E. 990, 57 Am. St. Rep. 427 ;
Radigan v. Johnson, 174 Mass. 68, 54 N. E. 358.
No sufficient legal reason appears why the plaintiff was not en-
titled to submit his case to a jury for its determination under proper
instructions, and the ruling that he could not maintain his action was
wrong.
Exceptions sustained. 37
WHEATON ROLLER MILL CO. v. JOHN T. NOYE MFG. CO.
(Supreme Court of Minnesota, 1S9G. 66 Minn. 156. 68 N. W. N"i4.)
Mitchell, J. 38 This action was brought to recover damages for
the breach of a warranty of a steam engine, boiler, etc., furnished and
set up by defendant for the plaintiff in its mill. The alleged warranty
was that the machinery was well made, of good material, and capablc
of operating plaintiff's mill at full capacity: (he part italicized being
all that is material on this appeal. It appeared on the trial that the
machinery was furnished under the written contract found in full in
the paper book, at folios 52 to 57, which is so long that we shall leave
it to speak for itself, without attempting here to state its provi?;
The plaintiff then offered certain parol evidence, the exclusion of which
by the court forms the subject of the assignments of error.
We do not find in the part of the record cited any such ruling as
37 And so in Anderson v. American Suburban Corp., 155 N. O. 131, 71 S. E
221. 36 L. R. A. (N. S.) 806 (1911), annotated.
38 Part of opinion omitted.
1036 the "parol evidence" rule (Ch. 7
that referred to in the first assignment of error, which may therefore
be passed without further notice.
The second assignment of error is that "the court erred in sustain-
ing defendant's objection to plaintiff's offer to prove that there was an
express oral warranty." This refers to the complex and somewhat
obscure and indefinite offer found at the bottom of page 12 of the
record. * * *
Assuming that such a warranty as suggested could be spelled out of
the offer, and that it was made in proper form, still the evidence was
properly excluded under the familiar rule that parol evidence is inad-
missible to vary the terms of a written contract. Plaintiff's contention
is that it does not fall within that rule ; that the offer was merely to
prove a separate oral agreement as to a matter on which the writing
was silent, and which was not inconsistent with its terms. The rule
thus sought to be invoked is one which both courts and text writers
have found some difficulty in formulating so as to be at once complete
as well as accurate. Mr. Stephens states the rule thus : "There may
be proved by parol the existence of any separate oral agreement as to
any matter on which a document is silent, and which is not incon-
sistent 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."
Steph. Ev. c. 12. This seems an accurate statement of the rule, except
that it is indefinite as to what are "the circumstances of the case"
which the court may consider in determining the completeness or incom-
pleteness of the document. Mr: Freeman, in his note to Green v. Bat-
son, 5 Am. St. Rep. 194, 36 N. W. 849, says, "Where the contract as
expressed in the writing is manifestly incomplete, parol evidence is
admissible to show a contemporaneous agreement that the property
should be of a particular quality, quantity, or kind." This statement
of the rule is perhaps subject to the criticism that it seems to imply
that the incompleteness of the writing must be manifest on its face
from a mere inspection of the document. All the authorities are sub-
stantially agreed that where, in the absence of fraud, accident, or mis-
take, the parties have deliberately put their contract into a writing
which is complete in itself, and couched in such language as imports
a complete legal obligation, it is conclusively presumed that they have
introduced into the written instrument all material terms and circum-
stances relating thereto.
But the point upon which the courts have sometimes differed is as
to how the incompleteness of the written contract may be made to ap-
pear. Some cases seem to go to the length of holding that this may
be done by going outside of the writing, and proving that there was a
stipulation entered into but not contained in it, and hence that only
part of the contract was put in writing. If any such doctrine is to
obtain, there would be very little left of the rule against varying writ-
Sec. 1) CONTRADICTING INSTRUMENTS 10
ten contracts by parol. Such is not the law. Other cases seem to al-
most go to the other extreme, by holding that the incompletenes
the writing must appear on the face of the document from mere in-
spection. But to furnish a basis for the admission of parol evi
the incompleteness need not be apparent on the face of the instrument.
If the written contract, construed in view of the circumstances in
which, and the purpose for which, it was executed, — which evidence is
always admissible to put the court in the position of the parties, —
shows that it was not meant to contain the whole in between the
parties, then parol evidence is admissible to prove a term upon which
the writing is silent, and which is not inconsistent with what is writ-
ten; but, if it shows that the writing was meant to contain the whole
bargain between the parties, no parol evidence can be admitted to in-
troduce a term which does not appear there. In short, the true rule
is that the only criterion of the completeness of the written contract
as a full expression of the agreement of the parties is the writing it-
self ; but in determining whether it is thus complete it is to be constru-
ed, as in any other case, according to its subject-matter, and the circum-
stances , under which and the purposes for which it was executed.
What was said on this subject in Thompson v. Libbv. 34 Minn. 374,
26 N. W. 1, is perhaps incomplete, in not specifically adverting to this
rule of construction, and for that reason capable of being understood
as meaning that the incompleteness must appear on the face of the
document from mere inspection. For a full discussion of the law on
this subject, see Mr. Freeman's note to Green v. Batson, supra ; also
Browne, Par. Ev. c. 12. Some few cases hold that in the case of a
written contract for the sale of personal property, where the writing
contains no warranty, it is competent to admit parol evidence to add a
warranty, placing the decision on the ground that a warranty is col-
lateral to the contract of sale. This doctrine was expressly repudiated
in* Thompson v. Libby, supra.
Applying the rules which we have laid down, parol evidence to prove
a warranty, which was part of the prior or contemporaneous agree-
ment, and about which the written contract was silent, was clearly in-
admissible. The written contract is of the most formal and complete
character, specifying with minute detail the particular make, name,
size, and power of the engine and boiler and appurtenances to be
furnished, and how and when they were to be set up. The plaintiff
having thus contracted for machinery of a particular make, size, and
power, the mere fact that it was purchased for the purpose of operat-
ing this mill, and that defendant knew this, would nut he a circum-
stance that would of itself justify the court in construing the writing
as an incomplete expression of the contract of the parties. Defendant
having furnished the specific machinery, both in make. size, and power,
which the parties contracted for, there was no implied warranty that
1038 the "parol evidence" rule (Ch. 7
it would furnish power enough to operate plaintiff's mill. Brick Co.
v. Hood, 60 Minn. 401, 62 N. W. 550, 51 Am. St. Rep. 539.
This also disposes of plaintiff's third and fourth assignments of er-
ror.
Order affirmed. 38
STARK ELECTRIC R. CO. v. McGINTY CONTRACTING CO.
(Circuit Court of Appeals of the United States. Sixth Circuit, 1917. 23S Fed.
657, 151 C. C. A. 507.)
Action by the McGinty Contracting Company against the Stark
Electric Railroad Company. There was a judgment for plaintiff,
and defendant brings error.
Knappen, Circuit Judge. 40 * * * 3. The first cause of action
embraces a claim for extra work performed in excavating on Weaver
Hill, which lies between Canton and Alliance. The contract provided a .
price of 40 cents per cubic yard therefor. In fact, when the contract
was made the railroad tracks were in position at the location where
plaintiff's work was to be done, traffic was being maintained thereover,
and was continued throughout the excavation work. Testimony was
admitted to the effect that when the contract was being negotiated de-
fendant assured plaintiff that it would remove the tracks far enough
to be out of the way of the excavation work (which contemplated a
deep cut), that such agreement would be embraced in the specifications,
and that the contract price was fixed under such inducement. The
specifications (which plaintiff claims not to have seen until six weeks
after the contract was made) did not contain this provision. There
was testimony that defendant did not remove the tracks, and that after
the work was entered upon plaintiff refused to proceed further with
that portion of it unless the tracks were so removed, or unless de-
fendant would pay an additional price for doing the work with the
tracks kept in condition for traffic, that the defendant claimed to be
unable to get right of way for temporary track purposes, and that
Morley agreed to pay what the work was thus reasonably worth, and
that the work was done under such agreement. Plaintiff claims $1
per cubic yard as a reasonable price. The amount at 40 cents per
cubic yard was paid upon vouchers, the difference ($6,816) represents
the additional compensation claimed. The defendant criticizes the
timony of the alleged oral agreement as incompetent. It is the well-
led rule that parol representations are not admissible in the absence
of fraud or mutual mistake, when the written contract purports to
«o r.,r :i collection of the cases on this point, see Elect ric Stonier F.nttcry
Co. v. Waterloo, C. F. & N./Ry. Co., 138 Iowa, 369, 110 N. W. 144, lU L. R. A.
(N. s.i L183 (1908), annotated.
*o Pari of opinion omitted.
Sec. 1) CONTRADICTING INSTRUMENTS 10!
contain the entire agreement. Scitz v. Brewers' Co., 141 U. S. 510,
516, 12 Sup. Ct. 46, 35 L. Ed. 837; Marmet Coal Co. v. Peoples' Coal
Co. fC. C. A. 6) 226 Fed. 646, 650. 141 C. C. A. 402. and cases cited.
Plaintiff insists that the assurance in question was the inducing cause
of the contract, and was a collateral agreement. It is conceded that
if the agreement was of the latter nature, it was admissible, but such
nature is denied. The jury was instructed, in effect, that if they found
that the contract was made on defendant's assurance that it would re-
move the tracks, and that defendant subsequently agreed verbally to
pay the additional reasonable value of the work occasioned by their
maintenance, recovery could be had. It is conceded that the work
could not have been done with the tracks in place unless they were
blocked up. Plaintiff claims to have kept 30 or 40 men doing such
work and transferring the tracks from side to side. It is clear that,
by the strict letter of the contract, plaintiff could have done its work
without supporting the tracks, thereby suspending operation of the rail-
road, unless the tracks were removed. Defendant denied any agree-
ment, before the contract was made, to remove the tracks, and denied
an agreement to pay additional compensation, claiming that defendant
itself actually supported and moved the tracks during the excavation
work. It is evident, however, that both parties expected that the
excavation should not interfere with traffic, defendant claiming to
have secured right of way, for the temporary use of the tracks, before
the contract in question was made. On this subject the contract did not
purport to speak. We think it was thus competent to show the cir-
cumstances surrounding the making of the contract, including the as-
surance claimed as inducement to its making.
The fact that plaintiff received payment of the vouchers at the origi-
nal contract price is not conclusive against it, in view of McGinty's
testimony tending to show that the money was received with the under-
standing that the balance should be paid ''when the whole job is
done." * * *
Affirmed on condition of a remittitur of another item.
MacALMAN v. GLEASON.
(Supreme Judicial Court of Massachusetts, 1017. 228 Mass 454, 117
X. E. 795.)
PiERCE, J. 41 This is an action of contract brought by the plaintiff
to recover $509.53 of the defendant, being for labor alleged to hive
been performed on and materials furnished for an automobile pur-
chased by the defendant of the plaintiff.
December 16, 1910, after negotiations and numerous interviews, the
4i Statement omitted.
1040 the "parol evidence" rule (Ch. 7
plaintiff and defendant drew up and signed a written agreement for the
purchase and sale of a second-hand motor car for the price of $1,800
including extras. A copy of this agreement is printed in a footnote. 42
At the time of the execution of the agreement the defendant paid the
plaintiff the agreed price and the automobile was delivered two days
afterward. After the car had been delivered to the defendant, and
used by him, certain repairs becoming necessary it was sent to the re-
pair department of the plaintiff and the repairs made. The defendant
admitted that the charges in the items enumerated in the plaintiff's
declaration were fair and reasonable, but claimed that the greater part
thereof were covered by a contemporaneous oral agreement and
guarantee of the plaintiff to keep the car in repair for one year from the
date of purchase free of charge to the defendant.
It is the contention of the defendant that the oral agreement was col-
lateral to the principal agreement and operated as an inducement for
entering into it. Subject to the exception of the plaintiff, as evidence
to prove the so-called guaranty, the defendant was permitted to testify
that the substance of the numerous interviews was as follows :
At a conversation at the defendant's house "I said I didn't want a
secondhand car because they were always in the repair shop." He said
"This had been thoroughly overhauled * * * and if I bought it
they would guarantee it for a year." To the question, "What do you
mean?" the defendant answered, "Keep it in repair for a year." At
an interview at the defendant's office "I told him the car looked good,
but I could not make up my mind to have a secondhand car." "We
went over the same conversation as the day before. He said there
would not be anything like that in this car, that the car would be just as
42 The writing in question was as follows:
"Sec-Hand Green Car.
"Motor Car Order.
"J. II. MacAlman, 8S9 Boylston Street
"Boston, Mass., December 16, 1910.
"We acknowledge receipt of your check for the sum of $l,S00.0O to apply
upon your order entered this day as follows, viz.:
"Secondhand Stearns motor car, model 30/60 equipped with Chain Drive.
"<;. Vaugkan body, standard tires and regular standard equipment.
"Color body, maroon. Color running gear, maroon.
"Special extras.
"Remarks: Equipment to include cape top, Trest-O-Lite tank, five lamps,
horn, pump, jack, and kit of tools, tire irons.
"Price, inclusive of extras, $1,800.00 f. o. b. Boston, Mass.
"Terms: ("ash upon acceptance of this proposal.
"To be delivered at Boston, Mass., on or before, at once, subject to strikes,
accidents, transportation, unavoidable delays and causes beyond our control.
"I i i> expressly understood that, in event of failure on our part to make de-
livery upon the date and for the causes stated, the above payment will be
refunded upon demand. J. II. MacAlman,
"By Chas. I. Howell, Salesman.
"Accepted by Edward F. Gleason, Purchaser,
"By II. C. Trior.
"Address, 536 Beacon St., Boston."
Sec. 1) CONTRADICTING INSTRUMENTS 1041
good as new, all the worn places thoroughly overhauled and they would
guarantee it to me for a year." A third conversation was over the
telephone: "He said, 'How do you feel about the car?' or something
like that. I said, 'If this car as you say is thoroughly overhauled and
you will guarantee it for a year, I will give $1,800 for it.' " He said,
"All right." " 'We will accept your offer,' and I told him I would be
down. I think that was in the forenoon of December 14."
The admitted evidence tends to prove that at the time of the making
of the final agreement of sale a further agreement was made that the
car would be just as good as new, all the worn places thoroughly over-
hauled and that the plaintiff would guarantee it for a year. The writ-
ing signed by the parties appears on its face to be a complete contract,
embracing all the particulars necessary to make a perfect agreement and
designed to express the whole arrangement between the parties. The
evidence therefore should have been excluded unless the oral agree-
ment relates to a subject independent of, distinct from and collateral to
the sale of the motor car. Dutton v. Gerrish, 9 Cush. 89, 55 Am. Dec.
45; Fitz v. Comey, 118 Mass. 100; Puffer Mfg. Co. v. Krum, 210
Mass. 211, 213, 96 N. E. 139; Glackin v. Bennett, 226 Mass. 316, 115
N. E. 490.
We are of opinion that the oral agreement directly touched and con-
cerned the use and enjoyment of the thing sold, that it was not a mere
inducement for entering into the sale, that it was a part of the bar-
gain of sale, and was not independent of or collateral to that sale. The
case at bar cannot be distinguished in principle from Brigham v. Rog-
ers, 17 Mass. 571, wherein it was held that, where an estate was de-
mised by lease, no action lay on a parol promise made by the lessor
at the time of executing the lease, that the water on the premises de-
mised would be good, and that there would be enough of it, and if
not that he would make it so. This decision was approved in Durkin v.
Cobleigh, 156 Mass. 108, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St.
Rep. 436; Spear v. Hardon, 215 Mass. 89, 102 N. E. 126; Naumberg
v. Young, 44 N. J. Law, 331, 344, 43 Am. Rep. 380; Thompson Foun-
dry & Machine Co. v. Glass, 136 Ala. 648, 654, 33 South. 811.
It follows that the evidence should have been excluded, and that
judgment should be entered for the plaintiff in the sum of $509.53 in
accordance with the terms of the report.
So ordered.
Hint.Ev— 66
1042 the "parol evidence" rule (Ch. 7
SECTION 2.— EXTRINSIC EVIDENCE TO AID IN THE CON-
STRUCTION OR APPLICATION OF WRITTEN
INSTRUMENTS
DOE ex dem. FREELAND v. BURT.
(Court of King's Bench, 17S7. 1 Term R. 701.)
Ejectment for a cellar and wine-vaults in Westminster, tried before
Buller, J., at the sittings after last term. The defendant claimed un-
der a lease from the lessor of the plaintiff of certain parts of a mes-
suage situated on the west side of Swallow-street, described to be one
room on the ground floor, and a cellar thereunder, and a vault con-
tiguous and adjoining thereto; and three rooms, together with the
ground whereon the same now stand, and together with a piece of
ground on the north side, particularly describing it, with an exception
of a right of way; and the whole were described to have been late
in the occupation of A. It was admitted that the vault in question was
under this piece of ground which was a yard.
The defendant rested his title on the maxim that cujus est solum,
ejus est usque ad ccelum & ad inferos. The lessor of the plaintiff of-
fered evidence to shew that at the time of the lease the cellar in ques-
tion was in the occupation of B. another tenant; and therefore that
it could not have been the intention of the parties that it should pass
by the lease to the defendant ; and that the defendant had not claimed it
till after the expiration of that lease. The defendant's counsel object-
ed to this evidence, because the lessor of the plaintiff was estopped
by his deed from saying it was not meant to pass. But Buller, J., was
of opinion that the evidence was admissible; and the plaintiff obtained
a verdict, with liberty to the defendant to enter a nonsuit if the ob-
jection were well-founded.
Mingay now shewed cause against a rule for entering a nonsuit.
The evidence offered was not contradictory to, but in explanation of,
the deed.
Ash hurst, J. 43 It appears plainly from the evidence that this ob-
jection is against the justice of the case. For it was not in the con-
templation of the parties at the time of the lease to pass the cellar,
and it appears that for three or four years after the defendant's lease
the lessor of the plaintiff received rent from the former tenant of the
cellar. The only question is, whether the court are absolutely bound
by the terms of this lease to put the construction on it, for which the
defendant contends. Now, it seems to me, that the construction of
all deeds must be made with a reference to their subject-matter. And
«» Opinion of <irose, J., omitted.
Sec. 2) AIDING CONSTRUCTION 1043
it may be necessary to put a different construction on leases made in
populous cities, from that on those made in the country. We know that
in London different persons have several freeholds over the same
spot; different parts of the same house are let out to different people.
That is the case in the Inns of Court. Now, it would be very extra-
ordinary to contend that if a person purchased a set of chambers, then
leased them, and afterwards purchased another set under them, the af-
ter-purchased chambers would pass under the lease.
In the present case, considering the nature of this property, it ■
proper to let in evidence to shew the state and condition of it at the
time when the lease was granted. Prima facie indeed the property in
the cellar would pass by the demise, but that might be regulated and
explained by circumstances. Therefore I am of opinion, that, consider-
ing all the circumstances of this case, it was proper to receive the evi-
dence offered at the trial, which, when received, proved that the cel-
lar was not intended to be passed by the demise to the defendant.
BullER, J. Where there is a conveyance in general terms of all
that acre called Black-acre, every thing which belongs to Black-acre
passes with it. And there the rule, which has been mentioned, prima
facie obtains. But whether parcel or not of the thing demised is al-
ways matter of evidence. Suppose the premises in question had been
the inheritance of another person at the time of this demise, instead of
their being in lease, they clearly would not have been parcel of this
demise. Then their being in lease to another person under this plain-
tiff cannot vary the question, whether parcel or not. In the next place,
it is very clear on inspecting the lease itself ; these words cannot re-
ceive the general construction of the law. This is a lease of a part of a
messuage, consisting of one room on the ground floor, with a cellar
thereunder: now, if the argument for the plaintiff would hold, the cel-
lar would have passed with the room on the ground floor without par-
ticularly specifying it. Then a description of another part of the prem-
ises is, "of ground, together with three rooms which stand on it."
Which shews that the parties have particularly described every thing
which was intended to pass. Then follows a demise of the yard de-
scribed with the same particularities, specifying the abuttals and the
dimensions.
Rule discharged.
DOE ex dem. CHICHESTER v. OXENDEN.
(Court of Common Pleas, 1S10. 3 Taunt. 147.)
This was an ejectment brought by the lessor of the plaintiff as heir
at law of Sir John Chichester, Bart., on a demise laid subsequent to
Sir John Chichester's death; and at the trial, before Lawrence. }.,
at the Exeter summer assizes, 1809, a verdict was found for the de-
fendant, subject to the opinion of this court on the following c
1044 the "parol evidence" rule (Ch. 7
The lessor of the plaintiff was heir at law of Sir John Chichester,
Bart., who, on the 30th of September, 1808, died seised in fee as well
of the premises in question, which composed his maternal estate, as
of other property, which he derived from his father, called the Youl-
ston estate. The premises claimed consist of the manors of Ash-
ford, George Teign, and Stowford, the tithes impropriate of the par-
ish of Xether Ex, and two estates called Great and Little Bowley,
in the parish of Cadbury, in the county of Devon : the manor of
Ashton is situate in the parish of Ashton, with the exception of one
insulated estate, parcel thereof, which lies in the parish of Exmin-
ster, adjoining to the parish of Ashton. The manor of George Teign
is situate in Ashton parish: of the manor of Stowford one part lies
in the parish of Crediton, and the other in the parish of Sandford ;
the manor itself being distant from the parish of Ashton about 12
or 13 miles. The parish of Nether Ex is also about 11 or 12 miles,
and the parish of Cadbury 15 miles, distant from the parish of Ash-
ton : with the premises aforesaid are comprised, besides the manor
of Ashton, the barton of Ashton, and lands lying within the parish
of Ashton. On the 3d day of September, 1808, Sir John Chichester,
Bart., being seised as aforesaid, made and published his last will and
testament, duly executed, so as to pass real estates, in the terms fol-
lowing: "I give my estate of Ashton, in the county of Devon, to
George Chichester Oxenden, (the defendant,) second son of Sir Henry
Oxenden, Bart., of Broom, in the county of Kent. I give the house
in Seymour Place, for which I have given a memorandum of agree-
ment to purchase, and which is to be paid for out of timber which I
have ordered to be cut down, to the Rev. John Sandford of Cherwill,
in Devonshire."
To show that by the words "my estate of Ashton," the devisor in-
tended to dispose of the whole of the maternal estate before specified,
the following, amongst other evidence, was offered by the defendant,
and received. First, the verbal instructions given by the devisor, at
the time of making the will, to the devisee, John Sandford, who made
the same, which were, to make a memorandum to guard against ac-
cidents, to give George Oxenden his, the devisor's, Ashton estate.
Secondly, expressions which Mr. Sandford and the Rev. Thomas
Hole (the latter of whom had occasionally audited the devisor's ac-
counts for 24 or 25 years previous to his decease) had at various
times heard the devisor use in describing his different property, viz.
that in speaking of his paternal property, he used to call it his Youl-
ston estate, and in describing his estate derived by him from his
mother, he used to designate that by the general term of his Ashton
estate, or Ashton property ; and, particularly on one occasion, directed
that the timber should not be cut on his mother's property, the Ash-
ton estate, but on his father's property. Thirdly, a series of annual
accounts delivered to the devisor by John Cleave, and John Smith,
who were successively two of his stewards: these accounts com-
Sec. 2) AIDING CONSTRUCTION 101."
menced with the year 1785, and the form of each of them was very
nearly the same. The following is a description of the form of one
of these accounts : on the outside was endorsed, "J- Cleave's account
for Ashton estate, from January 1st, 1799, to January 1st, 1800;" the
first page thereof was thus headed: "J. Cleave's account for Sir
John Chichester, Bart., for Ashton estate, from January 1st, 1799, to
January 1st, 1800;" in the first page was contained a list of the various
payments made by Cleave. * * *
And underneath was the following receipt, the signature to which
is in the handwriting of the devisor. April 1st, 1810, examined this
account, and received the vouchers thereof, and due from John Cleave
on the balance thereof, the sum of £470. 0s. 4. l-2d. John Chichester.
The foregoing evidence was objected to by the counsel for the lessor
of the plaintiff, as inadmissible, but was received, subject to the opinion
of the court as to the propriety of its being admitted. If the court
should be of opinion that the evidence was properly received, then the
verdict was to stand : if not, then a verdict was to be entered for the
lessor of the plaintiff, for so much of the premises, if any, as the court
should think did not pass under the will.
The case was twice argued ; first in Hilary term, 1810, by Pell,
Serjt., for the plaintiff, and Heywood, Serjt, for the defendant ; and
again in Easter term, by Best, Serjt., for the plaintiff, and Lens, Serjt.,
for the defendant.
For the plaintiff it was argued, that parol or other extrinsic evi-
dence was not admissible to contradict, explain, or enlarge the ef-
fect of a will ; it was admissible only in cases where there was an
absolute necessity, because the will would otherwise be uncertain or
insensible, and could have no effect without it, or where - there was a
latent ambiguity ; and no such necessity or latent ambiguity subsisted
in this case. All that class of cases where parol evidence has been re-
ceived to repel trusts arising on presumptions, may be laid aside as
irrelevant ; (to which the court agreed.) The testator had an estate of
Ashton, viz. a manor of Ashton, and the barton of Ashton, and other
lands there; and having an estate of Ashton, he used the most appro-
priate words to convey it. If he had said the manor of Ashton, it would
not have comprehended the barton, nor if he had devised the barton,
would it have included the manor. His "estate of Ashton" was his
estate "of or belonging to Ashton." The words do mean that, and they
can mean nothing else. At that period of the cause at which the evi-
dence was offered, it was in proof, therefore, that the testator had
an estate of Ashton ; and there being enough, both in interest, and
quantity of estate, and position, to satisfy the terms of the devise, the
evidence ought not to have been received, but the case ought to have
stopped there, unless it had been shown that there was another Ashton
estate belonging to the devisor. * * *
For the defendant it was contended that this was a case of latent
ambiguity. A latent ambiguity cannot be discovered to exist, but by
1046 the "parol evidence" rule (Ch. 7
the aid of collateral evidence ; and if that evidence be such as would,
if admitted, raise a doubt in the mind of the judge, it ought to be
received and left to the jury. No one can see on the face of this will
any ambiguity whatever. The word "of" does not denote locality in
this case : it means all that estate which the testator called Ashton. He
might designate his whole estate by the name of any one parcel, wheth-
er distant or near, if he had any reason in his mind for so doing. The
word "of" is therefore distinguishable from "at," the expression used
in Whitbread v. May, which might denote locality ; and the court not
being bound to construe "of" as local, may give it any other construc-
tion which the evidence requires: the ambiguity is therefore raised,
and by the same evidence it has been explained. * * * 44
Mansfield, C. J., now delivered the judgment of the court. After
recapitulating the "case, and adverting to the evidence, he added : If
this evidence ought not to be received, the consequence will be, that
so much of the property only will pass as is not affected by the evi-
dence. I have doubted much upon it. The more, because in a less
strong case, May v. Whitbread, two judges thought the evidence
should be received. Lord Eldon increased my doubts. On the whole,
I rather think we should go further in receiving this evidence, than
any case has yet gone. There is an extreme jealousy in receiving evi-
dence to explain written instruments. Many cases have been cited.
In general they are well known. The last and strongest was Doe v.
Brown. There it was impossible to doubt what the testator meant.
In this case my own judgment only is, if the evidence were admitted,
that the testator meant to devise the whole of his maternal estate
to his maternal relations, and not only the land locally situated at Ash-
ton. But to decide in favor of this evidence would be going further
than any court has yet gone. I need not particularize the cases : of
devises where there were two persons of the same name ; where the
name by which property was devised, applied equally to two es-
tates. Such was the case in P. Wms. of a devise to Gertrude Yardley,
by the name of Catherine Earnly, where there was no such person as
Catherine Earnly. The case in Ambler of legacies to John and Bene-
dict, sons of John Sweet; he had two sons, the name of one was
Benedict, but the name of one was James. The evidence was received.
It is not expressly said in any of these cases, that it was necessary to
receive the evidence, in order to give effect to the will, which would
not operate without such evidence. But although this is not said,
t the rule seems to hold. It will be found that the will would
have had no operation, unless the evidence had been received. Here,
without the evidence, the will has an effective operation; every thing
will pass under it that is in the manor or parish ; or what he would
naturally call his Ashton estate. This will be an effective operation;
and this being so, the case herein differs from all the others; be-
*< Statement condensed.
Sec. 2) AIDING CONSTRUCTION 1047
cause in them, the evidence was admitted to explain that which, with-
out such explanation, could have had no operation. It is safer not to
go beyond this line. Therefore only those premises pass which are in
the manor or parish of Ashton; for all but them the plaintiff has a
right to recover.
Postea to the plaintiff. 45
DOE ex dem. BEACH v. EARL of JERSEY.
(House of Lords, 1825. 3 Barn. & C. 870.)
[Ejectment for certain lands to which the defendant claimed title
under the will of Louisa Barbara Vernon, which contained the fol-
lowing provision :
"I give, * * * subject to the life estate of my husband therein,
all that my Briton Ferry estate, with all the manors, advowsons, mes-
suages, buildings, lands, tenements and hereditaments thereto belong-
ing or of which the same consists, with the appurtenances unto * * *
and after his decease to the second son of George Bussy Villiers,
Earl of Jersey."] 46
•ts The subsequent action of Doe ex dem. Oxenden v. Chichester was taken
to the House of Lords, 4 Dow, 65 (1816), and the same result reached on the
following reasoning by Gibbs. C. J.:
"I do not state the particulars of the evidence, as the question is, whether
any evidence at all can be admitted to explain the bequest. We are all
agreed, as I have stated, that 'my estate of Ashton' and 'my estate at Ashton,'
are words of the same import, and the question then is, when lands at a par-
ticular place are devised, whether extrinsic evidence may be received to show
that the devisor included lands out of that place; and we are all of opinion
that such evidence is inadmissible.
"The courts of law have been jealous of the admission of extrinsic evidence
to explain the intention of a testator ; and I know only of one case in which
it is permitted, that is, where an ambiguity is introduced by extrinsic cir-
cumstances. There, from the necessity of the case, extrinsic evidence is ad-
mitted to explain the ambiguity ; for example, where a testator devises his
estate of Blackacre, and has two estates called Blackacre, evidence must be
admitted to show which of the Blackacres is meant ; so if one devises to his
son John Thomas, and he has two sons of the name of John Thomas, evi-
dence must be received to show which of them the testator intended. And so
also if one devises to his nephew William Smith, and has no nephew answer-
ing the description in all respects, evidence must be admitted to show which
nephew the testator meant by a description not strictly applying to any
nephew. The ambiguity there arises from an extrinsic fact or circumstance,
and the admission of evidence to explain the ambiguity is necessary to give
effect to the will, and it is only in such a case that extrinsic evidence can be
received. It is of great importance that the admission of such extrinsic evi-
dence should be avoided where it can be done, that a purchaser or an heir at
law may be able to judge from the instrument itself what lands are or are
not affected by it."
Compare the treatment of a somewhat similar problem in Lane v. Stanhope,
6 Term R. 345 (1795), where it was thought that the fact that several pieces
of land had been used as a single farm was important in determining to what
the language referred.
46 The part of the statement inclosed in brackets has been condensed from
the report of this case in the Court of King's Bench, 1 B. & Aid. 550. Part
of opinion omitted.
1048 THE "PABOL EVIDENCE" BULB (Ch. 7
At the trial of this cause before Dallas, J., at the Hereford Spring
zes, 1816, a bill of exceptions was tendered as to the admission of
evidence orrered on the part of the defendant, objected to on that of
the pla and received by the learned Judge. After the usual state-
ment of the pleadings and of the evidence received at the trial without
objection, the bill of exceptions goes on to state the evidence objected
to, in the following words. "And the counsel learned in the law for
the said George Earl of Jersey, the said then defendant, proposed and
.-red to prove and give in evidence on the part and behalf of the
said Earl, the said then defendant, certain books, being stewards' ac-
count books kept and made out by former stewards, now deceased,
the said Louisa Barbara Vernon and her predecessors, owners of
the said lands, tenements, and hereditaments, containing particulars
thereof, in which the said stewards charged themselves with the re-
ceipt of various sums of money on account of the said owners, and
among other particulars the entry following, to wit, 'Briton Ferry
estate, in the county of Brecon;' and also proposed and offered to
prove and give in evidence, that the lands and tenements in the said
declaration mentioned, together with the lands, tenements, and heredit-
aments in the said schedules respectively contained, had all gone by
the name of the Briton Ferry estate ; and that such of the said lands,
tenements, and hereditaments as were in the county of Brecon, ex-
tended over twelve parishes, and contained above four thousand acres
of land."
The jury found a special verdict, upon which this court in Easter
term, 1818, 1 B. & A. 550, gave judgment for the defendant. A writ
of error having been brought, the question was fully discussed be-
fore the House of Lords, and in the course of the present session, the
following questions were put to the Judges :
First, Whether all the several matters which it appears by the bill
of exceptions were offered to be proved and given in evidence on the
part of the defendant, and which it so appears it was insisted by the
counsel of John Doe, were inadmissible, and ought not to be received
in evidence, were matters admissible, and which ought to have been
received in evidence, regard being had to the fact, that none of the
particulars of the evidence proposed to be given appear to have been
stated or required to be stated, in order to prove that all the lands and
tenements had gone by the name of the Briton Ferry estate.
Second. Whether the finding in the special verdict that the tene-
ments in "the county of Brecon, together with the manors and tene-
ments in the county of Glamorgan, had been known by the name of
the Briton Ferry estate, and by no other name, for divers, to wit, fifty
years before the death of Louisa Barbara Vernon," (who died in the
year 1786,) is consistent with the other findings contained in the spe-
cial verdict, and especially with the descriptions and names of the
tenements in the county of Brecon, and of the manors and tenements
in the county of Glamorgan, in the several indentures and the sched-
Sec. 2) AIDING CONSTRUCTION 1049
ules thereunto annexed, found and set forth in the said special verdict
and in the will of Louisa Barbara Vernon, therein also found and set
forth, and which indentures and will, appear to have been respectively
executed within fifty years before the death of the said Louisa Bar-
bara Vernon. * * *
Abbott, C. J. All the Judges, except the Lord Chief Baron and
Mr. Justice LittlEdalE, who were not present at the argument, have
conferred upon the question proposed, and have agreed upon answers
thereto.
To the first question :
We are of opinion that the words "all that my Briton Ferry es-
tate, with all the manors, advowsons, messuages, buildings, lands,
tenements, and hereditaments thereunto belonging, or of which the
same consists" found in the will of this testatrix, in which mention
also is made of her Penline Castle estate, denote a property or estate
known to the testatrix, by the name of her Briton Ferry estate, and not
an estate locally situate in a parish or township of Briton Ferry, and,
consequently, that a question arising upon any particular tenement,
is properly a question of parcel or no parcel ; and we, therefore think,
the several matters offered to be proved and given in evidence on the J
part of the defendant were admissible, and ought to have been received.
We think the object for which such evidence was offered was ob-
vious, and must have been understood by the judge and the counsel
on each side, without being specially stated or required to be so.
To the second question :
We are of opinion that the finding in the special verdict, that the
tenements in the county of Brecon, together with the manors and tene-
ments in the county of Glamorgan, were known by the name of the
Briton Ferry estate, and by no other name for divers, to wit, fifty
years before the death of Louisa Barbara Vernon, is consistent with
the other findings in the special verdict. In the will of Lord Man-
sell, and also in the deeds of 1740, mentioned in the special verdict,
it was necessary to describe and name the particular tenements, be-
cause the will gave certain tenements only, and not the whole estate
in trust for sale; and the deeds of 1740, were intended as an exe-
cution of that trust and a sale under it. The deeds of 1757, were
a settlement on a marriage, and in such settlements, as well as other
conveyances, it is usual to describe the parcels and enumerate the
particulars of the estate intended to be settled; and we think a de-
scription and enumeration of particulars by situation and names is
not inconsistent with a name of the whole, as composing an aggregate
mass. The whole of an estate may be known by one name, and
each of its parts by its own particular name.
To the third question:
We are of opinion that it is not sufficiently found that the said tene-
ments and manors in the said counties were so known by name by the
testatrix. In truth, it is not found that they were so known by name
1050 the "parol evidence" rule (Ch. 7
to any person at the time of making the will. The expression divers
to wit, fifty years before the death of Louisa Barbara Vernon, is much
too loose and indefinite. * * *
Venire de novo awarded.
SMITH et al. v. WILSON.
(Court of King's Bench, 1S32. 3 Barn. & Adol. 728.)
This was an action for the breach of the following covenant in a
lease, whereby the defendant demised to the plaintiffs, inter alia, a
warren ; "That at the expiration of the term, ,they, the plaintiffs, would
leave on the warren 10,000 rabbits or conies, the defendant paying
60/. per thousand for the same; and for any more than that number
at that rate, the number to be estimated by two indifferent persons, one
to be chosen by each party." Averment that, at the expiration of the
term, the plaintiff left more than 10,000, to wit, 19,200 rabbits upon
the warren, but that the defendant would not pay for the same. Plea
non est factum. At the trial before Garrow, B., at the Summer assiz-
es for Suffolk, 1831, it appeared that, at the expiration of the term,
the number of rabbits on the warren was estimated by two indifferent
persons chosen by the parties, to be 1600 dozen. It was contended
for the defendant, that, according to the custom of the country, the
1600 dozen should be computed at 100 dozen to the thousand; and,
therefore, that the defendant was liable to pay but for 16,000 rabbits.
On the other hand, it was insisted for the plaintiffs, that the words
per thousand must be understood in the ordinary sense, and that the
defendant ought to pay for 19,200 rabbits, being 1600 dozen. The de-
fendant paid into Court a sufficient sum to pay for 16,000 rabbits. Evi-
dence was offered by the defendant to show that the term thousand, as
applied to rabbits, meant, in that part of the country, 100 dozen. This
evidence was objected to, but received by the learned Judge: and he
directed the jury to find for the defendant, if they thought it was prov-
ed that the word thousand, as applied to rabbits, meant 100 dozen. A
verdict having been found for the defendant, a rule nisi was obtained
for a new trial, on the ground that the evidence had been improperly
received.
Parke, J. 4T The only question is, whether the evidence has been
properly received. Assuming that it has, the jury have found that, ac-
cording to the custom of the country, there was an understanding be-
tween the parties to this contract that the defendant should pay for
the rabbits, computing them at the rate of 100 dozen to the thousand.
The rule deducible from the authorities on this subject is correctly laid
down in 3 Starkie on Evidence, 1033. "Where terms are used which
«t Opinions of Lord Tenterden, C. J., and Littledalo and Taunton, JJ.,
omitted.
Sec. 2) AIDING CONSTRUCTION 1053
are known and understood by a particular class of persons, in a certain
special and peculiar sense, evidence to that effect is admissible for the
purpose of applying the instrument to its proper subject-matter; and
the case seems to fall within the same consideration as if the part,
in framing their contract had made use of a foreign language, which
the courts are not bound to understand. Such an instrument is not,
on that account, void ; it is certain and definite for all legal purposes,
because it can be made so in evidence through the medium of an inter-
preter. Conformably with these principles, the courts have long
allowed mercantile instruments to be expounded according to the cus-
tom of merchants, who have a style and language peculiar to them-
selves, of which usage and custom are the legitimate interpreters." Al-
though that principle has been more frequently applied to mercantile
instruments than to others, it is not confined to them ; and, if the word
thousand, as applied to the particular subject-matter of rabbits, had, in
the place where this contract was made, a peculiar sense, I think that
parol evidence was admissible to show it. In an action upon a con-
tract for the sale of 1000 deals, it would, I think, be competent to
show that the word thousand meant more than it would in its ordinary
sense. I agree that where a word is defined by act of parliament to
mean a precise quantity, the parties using that word in a contract, must
be presumed to use it in the sense given to it by the legislature, unless
it appear from other parts of the contract that they used it differently.
But that is not the present case. No specific meaning has been given
by the legislature to the word thousand as applied to rabbits, and,
therefore, it must be understood according to the custom of the coun-
try : and evidence was admissible to show what that was.
Rule discharged. 48
BROWN v. BROWN et al.
(Supreme Judicial Court of Massachusetts, 1841. 8 Mete. 573.)
Shaw, C. J. 40 The question in the present case arises from a reser-
vation in a deed, conveying land to the plaintiff, duly made and execut-
ed by the inhabitants of Marblehead. This deed, made in 1839,
purports to convey to the plaintiff a tract of land, embracing a line
of beach bounding on the sea, and contains the following reservation :
"Reserving to the town the right and privilege to enter on the beach,
and to take and carry away gravel and sand therefrom, as the said
town may have occasion, for the making and repairing of their high-
ways," &c.
The action is brought against the defendants, who claim to have
acted under the authority of the town, and justify their right so to do
48 And so in Myers v. Sari, 3 EL & EL 300 (1860), where a number of the
cases are reviewed. 4
*» Statement omitted.
1052 the "parol evidence" rule (Ch. 7
under the foregoing reservation ; and the question is, what is the true
construction and legal effect of that reservation? The averment in the
declaration is, that the defendants, instead of taking sand and gravel,
took and carried away ballast; and the proof was, that they took up
and carried away stones of considerable size, embedded in and mixed
with the beach gravel on the sea shore, and that such materials did not
come within the description of sand and gravel.
Evidence was offered by the defendants, to prove the meaning of
the words "sand and gravel," as generally and usually understood at
Marblehead ; also to prove that the same species of material had been
used for the same purpose, before the making of the said deed. The
court rejected the former evidence and admitted the latter.
The court are of opinion, that the instructions were, right upon
both points. As to the first, we think the general rule of law is, that
the construction of every written instrument is matter of law, and, as
a necessary consequence, that courts must, in the first instance, judge
of the meaning, force and effect of language. The meaning of words
and the grammatical construction of the English language, so far as
they are established by the rules and usages of the language, are, prima
facie, matter of law, to be construed and passed upon by the court.
But language may be ambiguous and used in different senses ; or gener-
al words, in particular trades and branches of business — as among mer-
chants, for instance — may be used in a new, peculiar or technical sense ;
and therefore, in a few instances, evidence may be received, from
those who are conversant with such branches of business, and such
technical or peculiar use of language, to explain and illustrate it. One
of the strongest of these, perhaps, among the recent cases, is the case
of Smith v. Wilson, 3 Barn. & Adolph. 728, where it was held, that in
an action on a lease of an estate including a rabbit warren, evidence of
usage was admissible, to show that the words "thousand of rabbits"
were understood to mean one hundred dozen, that is, twelve hundred.
But the decision was placed on the ground that the words "hundred,"
"thousand," and the like, were not understood, when applied to particu-
lar subjects, to mean that number of units; that the definition was not
fixed by law, and therefore was open to such proof of usage.
Though it is exceedingly difficult to draw the precise line of dis-
tinction, yet it is manifest that such evidence can be admitted only
in a few cases like the above. Were it otherwise, written instruments,
instead of importing certainty and verity, as being the sole repository
of the will, intent and purposes, of the parties, to be construed by
the rules of law, might be made to speak a very different language,
by the aid of parol evidence. The instruction, in this case, was cau-
tiously expressed and guarded.
As to the second, the instruction was sufficiently liberal for the de-
plants. In a conveyance of title, deeds must be construed ac-
cording to the language; and if the town, when they owned the land,
took matei ial not coming within the description of "gravel and sand,"
Sec. 2) AIDING CONSTRUCTION 1053
as they well might do, to mend their highways — as paving stones, or
materials for macadamizing — but chose to make their reservation in
narrower terms, they must abide by it, and cannot enlarge it by show-
ing such former usage. But, construed according to the subject mat-
ter, we are to presume that the evidence was admitted, to operate to
this extent only, namely, that it might tend to show that all such mate-
rial as had been used as gravel, to spread upon the surface of the roads,
in the usual mode of covering roads made of earth and gravel only, was
in the contemplation of these parties, and, to that extent, to show what
they regarded as gravel.
Whether the jury drew the right conclusion from the evidence, we
have no means of knowing; the evidence not being reported. We were
referred to the declaration for a description of the material which was
Actually dug and carried away ; but whether the proof fully came up to
the averment, we do not know. This is an action of trespass, and con-
cludes no right. If the verdict was against the evidence, the parties
will have an opportunity to test the question again in a new action.
Judgment on the verdict.
NICHOL v. GODTS.
(Court of Exchequer, 1S54. 10 Exch. 191.)
At the trial, before Parke, B., at the London Sittings in the pres-
ent Term, it appeared that the plaintiff had sold to the defendant,
through his broker, a quantity of rape oil in the ordinary way by
bought and sold notes. The sold note was in the following terms :
"London, 31st January, 1854.
"Sold this day, for Messrs. A. Nichol & Sons, to Mr. U. A. Godts,
the five undermentioned parcels foreign refined rape oil, being about
thirty-three tons (little more or less), warranted only equal to samples
at £35. per ton."
At the time of the sale samples of the oil were delivered to the de-
fendant, and, according to the plaintiff's evidence, the defendant was
told that the oil was- mixed to a certain extent with other oil, and for
that reason it was sold only equal to the samples. The defendant had
accepted part of the oil that had been delivered in performance of the
agreement, but had refused to take the residue, on the ground that it
was not foreign refined rape oil, but a mixture of hemp and rape oil.
The oil tendered corresponded with the samples given, which consisted
of rape oil adulterated with hemp oil. On the part of the plaintiff, it
was admitted that the oil was not foreign refined rape oil ; but it was
contended that the oil was known in the market as such. And upon
this point evidence was adduced on both sides. It was also contended,
on the part of the plaintiff, that, as the oil was sold by samples, the
defendant was bound to accept the oil, as it corresponded with the
sampler..
1054 the "parol evidence" rule (Ch. 7
The learned Judge told the jury that the statement in the sold note
as to the samples related to the quality only of the article; and that
according to the contract the defendant was entitled to have rape oil
delivered to him, unless the plaintiff could show a distinct usage in the
oil trade by which the words "rape oil" are understood to mean a mix-
ture of rape and hempseed oil; and that the only question for them
was, whether the plaintiff had proved such a custom. The jury found
a verdict for the defendant, at the same time accompanying their ver-
dict with the statement that they did so solely on the ground that by
the wording of the contract the plaintiff was legally bound to deliver
rape oil, and that they considered that the defendant well knew what
he was buying.
Watson now moved for a rule nisi for a new trial, on the ground
of misdirection. 50
Pollock, C. B. This is an application for a new trial, on the
ground of supposed misdirection by my Brother Parke ; and I am of
opinion that there ought to be no rule. The question turns upon the
meaning of certain words in the contract, by which the plaintiff sold a
quantity of oil to the defendant ; and the question is, whether the de-
fendant was bound to take and pay for the oil which the plaintiff
delivered to him, and which the latter refused to accept. The impor-
tant words in the contract are these: "foreign refined rape oil, war-
ranted only equal to samples." My Brother Parke told the jury that,
according to the true construction of this contract, not only the article
delivered must agree with the samples in quality, which was the mean-
ing of the words "warranted only equal to samples," but also that the
oil ought to agree with the description of it in the contract as to its
character. It was contended by Mr. Watson that the expression "war-
ranted only equal to samples" excluded every other description of war-
ranty; and, provided the oil delivered was equal to the samples, that
was sufficient to render the defendant liable to take it and pay for it,
although, in point of fact, it did not answer the description of being
foreign refined rape oil. The effect of that argument is, to render the
words "foreign refined rape oil" of no avail. Such a proposition can-
not be supported. I think the direction was perfectly correct; for,
as my Brother Piatt observed, it could not be contended that, if it
had turned out that the oil was whale oil, the contract would have been
performed. By the terms of this contract, it must be taken that the
plaintiff agreed to deliver foreign refined rape oil, and not that he pro-
fessed to sell any oil whatever. Mr. Watson then contended, that, as
between the parties themselves, the samples were oil which was un-
derstood by them as being foreign refined rape oil ; and witnesses were
called to show that such was the understanding between these parties.
But the contract must be read according to what is written by the par-
6« The statement of the pleadings and opinions of Piatt, Martin, and Parke,
BB. ( omitted.
Sec. 2) AIDING CONSTRUCTION lO.Vi
ties, for it is a well-known principle of law, that a written contract can-
not be altered by parol. If A. and B. make a contract in writing,
evidence is not admissible to show that A. meant something different
from what is stated in the contract itself, and that B. at the time as-
sented to it. If that sort of evidence were admitted, every written
document would be at the mercy of witnesses that might be called to
swear anything. My Brother Parke was quite correct in telling the
jury that, if they were satisfied that the plaintiff had established the
fact, that, by the general usage of persons dealing in this particular
article, the oil in question was denominated foreign refined rape oil,
the plaintiff would be entitled to the verdict. The jury found for the
defendant, adding, however, that the defendant knew what he was
buying. The case therefore resembles that which I have already put,
viz., that a written contract cannot be contradicted by evidence of the
meaning which the parties allege that they themselves attach to its
words.
Rule refused.
MacDONALD et al. v. LONGBOTTOM.
(Court of Queen's Bench, 1859. 1 El. & El. 977.)
Assumpsit for the breach of a contract to accept and pay for certain
wool alleged to have been bargained and sold by plaintiffs to de-
fendant.
On the trial, before Byles, J., at the last Liverpool Spring Assizes,
it appeared that the plaintiffs were farmers in Scotland, and the de-
fendant was a wool stapler in Liverpool, whose agent for purchasing
wool in Scotland was a Mr. Stewart, residing in Perth. In August,
1857, the younger Macdonald called upon Stewart and told him that
they had a quantity of wool, part of which was their own clip, and
then on their own farm, and part the clips of the same year of some
neighbouring farms, not then on the plaintiffs' premises : that the whole
quantity amounted to 2300 stones 100 stones more or less : and offered
the whole to Stewart for sale. On 19th August, Stewart wrote to
Macdonald, saying, "I have a letter from Mr. Longbottom (the de-
fendant), who says, T will take Mr. Macdonald's wool at 16s.' "
Macdonald then wrote to Stewart, on 26th August, a letter which,
after stating that two of the small clips had been sold, proceeded as
follows :
"With regard to our own wool, I may state that I have succeeded
in getting a promise of another superior clip in this neighbourhood
which would stand about 550 stones ; it is as good as the Bialliol wool ;
it will go along with my other wool." On 5th September, Stewart
wrote to him as follows: "I wrote you 1st instant, enclosing letters
from Mr. Longbottom, and, not having received your reply, I beg to
state that I have heard from him to-day, and he now desires me to offer
105G the "parol evidence" rule (Ch. 7
you for your wool 16s. per stone, delivered in Liverpool, less two
months' discount, and as there is now so little between you, I hope to
receive vour acceptance of the above offer in due course.
"[Signed] William Stewart."
To this letter Macdonald replied as follows:
"Strashmastie, 8th September, 1857.
"Dear Sir. I yesterday received your favour, and in reply beg to
say that I agree to your offer for the wool of 16s. per stone, less two
months' discount, at the rate of £5. per cent., for ready money."
"[Signed] Macdonald, Jun."
On 27th November the plaintiffs shipped to the defendant at Liv-
erpool the whole of the wool they had for sale, including that which
belonged to the plaintiffs' own clip, and that which they had got from
the other farmers, the whole amounting to 2542 stones. The defend-
ant, on its being tendered, refused to accept it, on the ground that
there had been unreasonable delay in the shipment. No evidence was
given at the trial that he had made any objection that the wool shipped
was not what he had contracted to purchase.
The learned Judge ruled that the evidence of the conversation which
Macdonald, Jun., had had with Stewart before the letters of 5th and
Sth September was inadmissible for the purpose of explaining what
was the wool referred to in those letters. The plaintiffs were non-
suited, leave being reserved to enter a verdict for them for the amount
claimed, if the Court should be of opinion that, without such evi-
dence, or with it if admissible, there was sufficient evidence of a con-
tract which bound the defendant to accept the wool tendered. In
order to obviate the necessity for a new trial in such case, the issue
of fact, as to whether the wool was tendered within a reasonable time
was submitted to the jury, who found, on such issue, a verdict for the
plaintiffs.
Monk, in last Easter Term, obtained a rule to show cause why the
nonsuit should not be set aside, and a verdict entered for the plaintiffs
on the ground that there was a sufficient contract in writing, and also
on the ground of improper rejection of evidence. 61
Lord Campbell, C. J. I am of opinion that our judgment should
be for the plaintiffs. The letters of 5th and Sth September constitute
a complete contract, within the Statute of Frauds, between the plain-
tiffs and the defendant, through his agent, Stewart. This was an
offer made to the plaintiffs, and accepted by them, of 16s. per stone
for "your wool," to be delivered in Liverpool. The only question,
therefore, is, what was the subject-matter of the contract, described as
"your wool"? I am of opinion that, when there is a contract for the
sale of a specific subject-matter, oral evidence may be received, for
the purpose of showing what that subject-matter was, of every fact
BiThe statement of the pleadings has been condensed and opinions of
Wightwan and Earle, J.J., are omitted.
Sec. 2) AIDING CONSTRUCTION 10
• 'i
within the knowledge of the parties before and at the time of the con-
tract. Now Stewart, the defendant's agent, had a conversation be-
fore the contract with one of the plaintiffs, who stated what wool he
had on his own farm, and what he had bought from other farms. The
two together constituted his wool ; and, with the knowledge of these
facts, the defendant contracts to buy "your wool." There cannot be
the slightest objection to the admission of evidence of this previous
conversation, which neither alters nor adds to the written contract, but
merely enables us to ascertain what was the subject-matter referred to
therein. Then comes the question, whether the contract is to be lim-
ited to the 2300 stones, 100 stones more or less, which, in the course
of this conversation, one of the plaintiff's stated was the amount of
the whole of the wool. I am of opinion that it is not to be so limited.
There was no contract entered into at the time of this conversation :
and, when the defendant ultimately agrees to purchase the wool, no
reference is made to the quantity. The statement of the quantity at
the time of the conversation was a mere expression of opinion, and
did not affect the actual contract at all. Then, is it to be said that
the letter of 5th September is to be taken as embodying the condition
that the .wool shipped shall not exceed that quantity ? The agreement
then is to take "your wool," tale quale ; and I think we cannot intro-
duce any limitation of the quantity. On the evidence, it seems clear
that the defendant rejected the wool, not on account of any excess,
but because the market had fallen in the mean time. 52
Rule absolute. 68
TRUSTEES OF FREEHOLDERS AND COMMONALTY OF
TOWN OF SOUTHAMPTON v. JESSUP.
(Court of Appeals of New York, 1903. 173 N. T. 84, 65 N. E. 949.)
The judgment of the trial court restrains the defendant "from dig-
ging, excavating, embanking, or otherwise disturbing the lands under
the waters of the Great South Bay at or adjacent to Potunk Point, de-
scribed in the complaint, for the purpose of making a solid roadway
or embankment, and from substituting, for the wooden bridge or struc-
ture supported on piles, which the defendant, Nathan C. Jessup, has
built across said Great South Bay at or near said Potunk Point (or
for any part thereof), the solid embankment of earthen materials,
6 2 See Stoops v. Smith, 100 Mass. 63, 1 Am. Rep. 85, 97 Am. Dec. 76 (1S6S),
where prior negotiations were resorted to for the same purpose. In Harten
v. Loffler, 212 TJ. S. 397, 29 Sup. Ct. 351, 53 L. Ed. 568 (1909), the oral negotia-
tions were admitted to show that a contract for the sale of a piece of prop-
erty described as "fronting about sixty feet," etc., embraced the entire lot,
which had a frontage of over eighty feet.
53 This ruling was affirmed by the Exchequer Chamber, 1 EL & EL 987
(1860).
Hint.Ev.— 67
Jtl.jS THE "PAROL EVIDENCE" RULE (Ch. 7
across, over, or through said Great South Bay or any part of said bay."
The appellate division affirmed this judgment by a divided vote, and the
defendant appealed to this court. 54
Vann, J. On the 2d of June, 1888, the plaintiffs adopted a resolu-
tion, of 'which the following is a copy : "Resolved, that Nathan C.
Jessup be and is hereby given liberty to make a roadway and to erect
a bridge across the Great South Bay, commencing at the south point of
Potunk Neck ; thence running southerly to the beach, the said bridge
to be a drawbridge of a width of not less than twenty feet, the height
above the meadow three feet, and the draw to be twenty feet wide,
and the said Nathan C. Jessup shall not cause any unnecessary delay
to those navigating the waters of said bay." * * *
Upon the trial now under review, parol evidence was received tending
to show that both parties intended that the roadway should be of wood,
and, although some of the trustees themselves gave evidence to the
contrary, the trial judge held "that it was the intention of the parties
that the defendant should have permission to build a road-bridge across
the bay, and that he has no right to build a solid roadway in any part
of the' bay." This evidence appears to have been received and made
the basis of the present judgment, because we stated in our previous
opinion that we had searched the record to see if there was any evi-
dence, aside from the resolution itself, bearing upon the intention of
the parties. We said this because the trial court had found, in the
record then before us, "that it was the intention of said trustees and of
the defendant that there should be constructed a roadway built of
timber upon piles driven into the mud and water." Our object was to
show that the finding was without evidence of any kind, good or bad,
to support it, but not to sanction the introduction of parol testimony to
add something to the resolution which the parties had failed to insert.
Some evidence of this character had been received on that trial, with-
out objection, and we said, arguendo, that, even "assuming it to be ad-
missible, [it] showed that the defendant wished to build a solid road-
way on the south side, such as he had already built on the north side."
Regretting that our language should have misled the courts below, we
will now consider whether such evidence was admissible under the cir-
cumstances of this case.
The franchise in question is a contract in writing, which cannot be
varied by parol evidence, although, if there is an ambiguity arising
out of the terms employed, such evidence may be received, not to vary
the instrument, but to enable the court to appreciate the force of the
words used in reducing the agreement to writing. Thomas v. Scutt,
127 N. Y. 133, 27 N. E. 961 ; Stowcll v. Insurance Co., 163 N. Y.
298, 57 N. E. 480. Parol evidence can neither add to nor take from
the contract, but it can aid in interpreting a word or expression of
ambiguous meaning by showing, through the circumstances surround-
6« statemenl condensed and part of opinion omitted.
Sec. 2) AIDING CONSTRUCTION I 1
ing the parties when their minds met and the language used by them
at the time, the sense in which the doubtful language was employed.
"It is received where doubt arises upon the face of the instrument as
to its meaning, not to enable the court to hear what the parties said,
but to enable it to understand what they wrote as they understood it
at the time. Such evidence is explanatory, and must be consistent with
the terms of the contract." Thomas v. Scutt, supra, citing Dana v.
Fiedler, 12 N. Y. 40, 62 Am. Dec. 130; Collender v. Dinsmore, 55
N. Y. 202, 14 Am. Rep. 224; Newhall v. Appleton, 114 N. Y. 140, 21
N. E. 105, 3 L. R. A. 859; Smith v. Clews, 114 N. Y. 190, 21 N. E.
160, 4 L. R. A. 392, 11 Am. St. Rep. 627. So, Mr. Wharton says:
"We are restricted, therefore, to the interpretation of the language
used, and proof of intention is only admissible when, in cases of am-
biguity, proof of intention enables us to discover what the language
means. * * * The contract cannot be varied ; its obscure expres-
sions may be explained, but this is for the purpose not of molding,
but of developing, the true sense." 2 Whart. Ev. §§ 937, 946. See,
also, 1 Greenl. Ev. § 275; Underhill, Ev. 323; Rice, Ev. § 170.
What ambiguous word or expression of doubtful meaning is there
in the resolution relating to die material out of which the roadway
was to be constructed? None whatever, for the writing is silent upon
the subject. The defendant was given liberty to make a roadway, but
nothing was said as to how it should be made or what it should be
made out of. An ambiguity, in order to authorize parol evidence,
must relate to a subject treated of in the paper, and must arise out
of words used in treating that subject. Such an ambiguity never arises
out of what was not written at all, but only out of what was written
so blindly and imperfectly that its meaning is doubtful. Nothing is
said in the resolution before us upon the subject of the material to be
used, or the method to be employed, in making the roadway, and hence
there is no ambiguity arising out of the words used with reference to
that subject. Witnesses cannot be permitted to swear something Into
the instrument which neither explains nor interprets any language used
therein. They cannot swear a wooden roadway into a franchise which
is silent, even to the exclusion of implication, as to the substance out
of which the roadway is to be made. That would be making a new-
contract instead of explaining an old one, and would violate the prin-
ciple upon which parol evidence is received, to aid in interpreting an
ambiguous word or expression. Since the plaintiff? gave the defendant
the right to make a roadway, but did not restrict him to the u>e of
wood, he was not obliged to use wood. As we held on the last appeal :
"In the absence of specifications in the grant, the defendant had the
right to make a roadway out of the materials in common use for the
construction of roads, such as earth and stone."
We think the evidence was not admissible for any pur]
that part of the judgment which restrains the defendant from makii
solid roadwav rests wholly upon this incompetent testimony, it should
lOC.O THE "PAROL EVIDENCE" RULE (CI). 7
not !>«• allowed to stand. That part of the judgment, however, which
restrains thi d< fendant from digging upon the lands of the plaintiffs
in ordei to obtain materials to make iii<- roadway, does not resl upon
parol evidence, hut upon the resolution itself, li is not claimed that
the defi nii.iiii ever received permission from the plaintiffs to dig earth
from their lands for the purpose of the roadway, except through the
resolution. As no express permission appears therein, the only ques
linn is whether such a righl may be Fairly implied from the terms of
the resolution. We find nothing from which such an implication can
arise it is obvious that the defendant was to furnish his own ma
terials i"i the roadway, the same as he was for the bridge. The fad
that it wotild be very convenient for him, and hut slightly, if at all, in-
convenient t<» the plaintiffs, if he thus obtained his materials, does
not wan. mi the implication thai they granted him the privilege. We
think he had no right i<> dig upon their lands for thai purpose,
< 'ni conclusion is thai the judgments below should he modified by
striking oul thai pari of the injunction which restrains the defendanl
from making a solid roadway, and that, as thus modified, they should
be affirmed, withoul costs of this appeal to cither party.
Parker, C. J., and Gray and O'Brien, ||., concur. Haight and
Cullbn, rj,, vote for affirmance. Bartlett. J,, dissents.
I iidgments modified.
BUCKBEE v. P. HOHENADEL, JR., CO.
(Circuit Court of Appeal! of the Doited States, Seventh Circuit, 101B. 224
i<v.i. li. L80 0. 0. a. 478, L Et, A, L910O, L001, Ann. Oas, L918B, 88.)
Seaman, Circuit Judge. 88 The judgmenl against the defendanl be
Jow, pl.iinhli in error lluekhee, arose under his contracts for sale and
delivery to the plaintifl corporation, P. Hohenadel, Jr., Company, of
cucumbei seed oi specified variety, and the verdicl in favor oi the
plaintifl (directed by the trial court) awards recovery pursuant to two
propositions, in substance: (1) 'That the evidence establishes delivery
oi a different variety of seed, not adapted to the purpose contemplated
bj the contract ; and (2) thai damages are proven and recoverable for
the difference in market value between the crops produced from the
seed so delivered and such crops as the variety of seed specified in the
contracts would have produced under like conditions. I Vftei holding
that the requests to direct the verdict operated to submit the facts to
the coin I : |
i \ lignments of error, however, For rejection of testimony offer
ed "ii hch, di oi the defendant, raise questions of vital impor-
tant ■ * *
•• Statement *n<3 part «>f opinion omitted.
Sec. 2) AIDING CONSTRUCTION 1061
Understanding of the force of these offers" requires reference to
the follow inj_; anicvcdrnt matters of record : The one contract in
named the subject matter thereof as "300 pounds cucumber Chi
Pickle," while the second contract named 3,500 pound "cucumbei
seed, Improved Chicago Pickling." I >n the part of the plaintiff, the
contentions were (as stated in its brief), thai one Westerfield had de
veloped, long prior to the contracts, "a certain variety <>f cucumbers,
which are especially desirable for pickling purposes," as described;
that eventually "production of this type of cucumbei re ulted in the
Be The defendant's offer was to prove by the witness John t. Buckbet
"iiiiit ;ii the time <>r the negotiations for and the making of the contract of
October '-'.">, L903, covering the 8,600 pounds of cucumber needs and other
seeds, made at Jahesvllle, wis., that the samples of We tcrncld Chicago
Pickle cucumber Beed were presented by hlra t<» Mr. Hohenadel; thai d iam
pie of the seed which Buckbee was then advertising in bis catalogue of 190.1
ms Improved Ohlcago Pickling was presented; thai iMis latter seed was the
seed developed by Buckbee, defendant, from the seed earlier purchased by
him from the Haskell Seed Company <>r Bockford, ill., which was going out
of business; thai the price quoted t<> Mr. Hohenadel <>n the Westerfield Ohl
cago Pickle cucumber seed w;is 86 cents per pound; thai the price Quoted on
the Other seed was 70 cents per pound; thai the wllness (did to Mr. Holicn
iidei the history of the seed secured from Haskell and advertised by Buckbee
us Improved Chicago Pickling; thai his Information was thai It had been
developed from the same original stock from which the Westerfield had been
developed; I ha I the witness described to Mr. Ilnhenadcl Hie kind of CUCUIB
her thai il would raise in the pickling Stage, mid described II us Homewlint
thicker and Lighter shade than the Westerfield Chicago Pickle cucumber;
that Mr. Hohenadel asked the witness what they called it; that the witne
told him thill they were advertising It us Improved Chicago Pickling CUCUm
her seed; that the witness told him that they had gTOWD this Seed them
selves, Buckbee growing the seed, and the quantity they bad; thai there was
further conversation in regard to other seeds not Involved In this laiil hut
covered by the contract; that thereupon Mr. Hohenadel dictated and bad
written by his stenographer and typewriter the contract of October 28, 1003,
in evidence; that, previous tO dictating that, Mr. Hohenadel had stated 'hat
lie would take 8,600 pounds of that seed; that they would lahel It. hi the
contract 'Improved Chicago Pickling'; that that name was inserted in the
contrad by Mr. Hohenadel, and it was agreed between the witne and Mr.
Hohenadel that the seed was developed from the seed purchased from the
Haskell Seed Company, and should he delivered under tin- contract; that Mi.
Hohenadel requested in the: ami' conversation that 800 pound covered by the
contract of October 17, 1908, should he tilled with the same kind of seed;
that the ;>,H0() pounds of this kind of Seed was afterward , in the latter I'M'
of February or early part of March, shipped to the Hohenadel people under
Hohenadel'S direction, and Invoiced to them as per Invoice:; in evidence; that
afterward-, and during the winter of the season following, for the purpo e .,!
te ting this seed that was delivered in February or March to Hohenadel, the
witness planted it in his greenhouse and tested it tor germination and for
quality; that, as shown by letter in evidence, Mr. Hohenadel was notified "I
this; that the seed that was germinated was of the variety delivered to No
benadel; that after the plant grew, and the fruit was set and fully <!•
oped, samples of it were senl to Mr. Hohenadel previous to the del
the. seed; that at. thai time, in 1008 and L0O4, the wit: • . <-i no other
strain or variety or kind of CUCUmber Seed that was advertised or being Hold
under the name of Improved Chicago Pickling. As a pari Ol SUCfa offer, and
identified by the same witne , page '-'7 of the Buckbee catalogue of toofl
offered as Defendant's Exhibit 2, and also page 27 of the Buckbee catali
of i;ioi was off ered as Defendant's Exhibit .'; copie ol which i
forth and included in the hiii of exceptloni in the action."
1062 THE- "parol evidence" RULE (Ch. 7
sale of cucumber seed, called indifferently, 'Westerfield Chicago
Pickle,' or 'Chicago Pickle,' or 'Improved Chicago Pickling"'; and
that both contracts intended such "Westerfield" variety as their sub-
ject-matter. Many seedmen, introduced as witnesses in support of
such contention, so testified, although other witnesses upon the same
side testified, in substance, either otherwise or that such other designa-
tions of the Westerfield variety were unknown to them in the trade.
Numerous witnesses (seedmen) testified on the part of the defendant,
in substance, that the contract terms were not understood in the trade
as designations of the Westerfield variety. By way of foundation for
the above offer, the witness Buckbee had been interrogated as to the
negotiations and transactions between the parties on October 23d, when
the second contract was made, and the record shows extended dis-
cussion, both on the part of court and counsel, upon the admissibility
of testimony embraced in the subsequent offer. Thereupon the ruling
of the court excluded the testimony, stating, "Whatever transpired
prior to the execution of the written contract is absolutely immaterial,"
and, in substance, that it must be excluded as violative of the cardinal
rule against varying the terms of the contract as written. For preser-
vation of all questions raised by such rulings, the trial judge suggest-
ed the making of the offer and stated, "Let the record show that there
is no objection made to the evidence because it is in the form of an
offer," and counsel for plaintiff assented to such entry.
The foregoing immediate circumstances of the offer are material
for two purposes: (a) As evidence that all substantial questions in-
volved therein were duly presented and entered into consideration for
the ruling to exclude the testimony ; and (b) that it clearly meets the
objection urged by counsel for plaintiff (elaborately discussed in the
oral argument and supplemental briefs), in substance, that it raises no
question of error in the exclusion, for the alleged reason that the offer
embraces matter which was inadmissible in any view of the rejection
of other matters contained therein, and is thus brought within the
rule that rejection by the trial court as an entirety was authorized in
the absence of segregation of matters so embraced therein. ^ We be-
lieve the record is sufficient to present the important question upon
the merits, whether the defendant was deprived of substantial rights
by such exclusion.
In the enforcement of contracts which have been reduced to writ-
ing, either in formal instruments or in letters or memoranda adopted
between the parties, one of the most frequent questions of difficulty
arises out of tenders of proof of the nature described in the above
offer. Issues are numerous in such cases, which both require and
authorize proof of negotiations and attending circumstances out of
which the contract grew, either for identification of subject-matter not
sufficiently described in the writing, or for interpretation of contract
terms which are ambiguous or uncertain without explanation of the
sense in which they are employed in the contract. Thus, where the
Sec. 2) AIDING CONSTRUCTION 10G3
writing is "expressed in short and incomplete terms, parol evidence
is admissible to explain that which is per se unintelligible, such ex-
planation not being inconsistent with the written terms." 1 Greenleaf
on Ev. § 282. For instances of the above-defined character the prin-
ciple is well recognized, both in law and in equity, that the meaning
the parties "intended to convey by the words they employed in the
written instrument" may thus be ascertained and enforced. Id. This
doctrine is entirely apart from and beyond the range of operation of
the other elementary rule, which cannot be departed from in the en-
forcement of written contracts, that such contract between the par-
ties cannot be varied or set aside by parol testimony, and that all
prior negotiations and understanding of the parties (in the absence of
fraud or mistake) are presumptively merged in the writing. It neither
involves nor permits violation thereof when rightly understood and
applied, each being consistent with the other in object and enforcement.
In other words the rule invoked for the. above-mentioned offer of testi-
mony is exclusively applicable when ambiguity or uncertainty appears
in the contract terms, and in such event parol proof is admissible for
the sole purpose of ascertaining the meaning of terms so employed on
which the minds of the parties presumptively met in making the con-
tract. It thus serves the needful object of placing the court, "in regard
to the surrounding circumstances, as nearly as possible in the situation
of the party whose written language is to be interpreted." Id. § 295a.
So understood, application of this principle is free from difficulty
whenever the controversy over the contract terms is strictly limited
as above defined ; but confusion is not infrequent, either in presenta-
tion of issues upon such terms or in the contentions of counsel in re-
spect thereof, which tends to create difficulty in the way of placing
offers of parol proof within one or the other of these cardinal rules,
and we believe such confusion appears in the extended argument of
counsel (and citations as well) in support of the ruling under considera-
tion. We come, therefore, to the inquiry whether the issues upon
the contract in suit render the rejected proof admissible.
Both pleadings and evidence concur in establishing the fact, if
otherwise questionable on reading the contracts or orders in suit, that
the subject-matter of each— named "Chicago Pickle" in the one con-
tract and "Improved Chicago Pickling" in the other— requires ex-
trinsic evidence for identification as a known variety of cucumber
seed, and the entire controversy between the parties hinges primarily
on the meaning of these terms as employed in the respective orders.
The plaintiff for support of its contention that both were used alike
to designate "Westerfield Chicago Pickle"— an old and well-known
variety "especially desirable for pickling purposes"— introduced (as
heretofore mentioned) various seedmen who testified that the names
were so used and known in the trade. This testimony was contro-
verted, but, irrespective of such disagreement, we understand the al-
leged usage to constitute circumstantial evidence only of the meaning
10G4 the "parol evidence" rule (Ch. 7
of the uncertain terms employed in the writing; that, although uni-
form usage may have strong probative force in the issue of fact thus
raised, other circumstances attending the making are equally admissi-
ble to ascertain the mutual intention of the parties therein. The fore-
going offer of proof by the witness John T. Buckbee (who made
the contract on behalf of the defendant for "Improved Chicago Pick-
ling") clearly embraces full explanation to Hohenadel that the variety
tendered for purchase was "Haskell" seed described with certainty;
that he then quoted the "Westerfield" variety at 85 cents per pound,
and the "Haskell" at 70 cents per pound, as optional for purchase;
that Hohenadel selected the "Haskell" tender accordingly for purchase ;
that they then adopted, as designation for the seed so purchased, the
arbitrary name "Improved Chicago Pickling," as theretofore applied
by the defendant ; that "the witness knew of no other strain or variety
or kind of cucumber seed that was being sold under" such name ; and
that the name was so "inserted in the contract by Mr. Hohenadel."
We are of opinion that the testimony thus offered was admissible
for submission upon the above-defined issue, and that error is well
assigned for its rejection. In reference to objections urged to other
matters embraced in the offer, we are not impressed with the alleged
defects therein as substantive or requiring specific mention. * * *
Judgment reversed.
DOE ex dem. HICK v. DRING.
(Court of King's Bench, 1814. 2 Maule & S. 448.)
Robert Hick being entitled, as heir at law to one Joseph Hick, to
the undisposed of reversion in fee of certain freehold estates in Nor-
folk and Cambridgeshire, expectant on the death of Ann the widow of
the said Joseph, who was tenant for life under the will of the said
Joseph, which estates were in 1776, at the death of the said Joseph, of
about the yearly value of i40., married the lessor of the plaintiff, by
the name of Elizabeth Watte, widow, whose former husband, Isaac
Watte, was then living; but that fact was unknown to both parties.
Afterwards the said Robert made his will, dated the 6th of April, 1807,
and properly executed by him in the presence of and attested by four
witnesses, in the following words: "I, Robert Hick, of, &c, do declare
this to be my last will and testament, by which I do give and bequeath
to my wife Elizabeth, or reputed wife, all and singular my effects of
what nature or kind soever, to her own use and enjoyment during her
natural life, and at her death to be equally divided between our sur-
viving children." The testator died soon after the making of his will
without revoking or altering the same, and leaving the lessor of the
plaintiff, his supposed wife, and three sons now living, namely, Joseph,
Robert, and John, all baptized as their children, and having obtained
that reputation in the lifetime of the testator. Ann, the tenant for life,
Sec. 2) AIDING CONSTRUCTION 10G5
died in 1811. The defendant John Dring is the son and heir at law
of Susannah, the sister of and heir at law to the testator, who married
one John Dring. The testator died possessed of personal estate to the
amount of about £118., and in his lifetime, and in the lifetime of Ann
the tenant for life, had an offer made to him for the purchase of his
reversionary interest in the estate in question, which he declined to ac-
cept.
The question for the opinion of the Court is, whether the reversion-
ary interest of the said Robert Hick does or does not pass under and
by virtue of his aforesaid will to his widow, the lessor of the plaintiff.
If it does, the verdict to stand ; but if not, a verdict to be entered for
the defendant.
This case was argued in last Hilary term by Blosset, Serjt., for the
plaintiff, and Best for the defendant, when the Court, in the absence
of Dampier, J., gave judgment in favour of the defendant; but some
days afterwards they intimated. to the counsel for the plaintiff, that
if it was desired, they would hear a second argument; and so the
case was again argued on this day by Holroyd for the plaintiff, and
Best for the defendant. For the plaintiff it was argued in substance
as follows : The reversionary estate of the testator passed to the les-
sor of the plaintiff under the word effects. That the word effects is
capable of carrying the real estate, if it be used with that intent, is
clear as well from the rule of law as from authorities.
For the defendant, it was denied that the Court could look to circum-
stances dehors the will in order to collect the intention ; and therefore
it was said that this was a mere question upon the construction of the
word effects, simply, and as it stood alone, without anything to mark
in what particular sense the testator used it ; and that unless the word
effects did proprio vigore pass the real estate, the rule that the heir at
law shall not be disinherited but by express words or necessary impli-
cation, must prevail. But it. was insisted that effects, in its natural
and legal acceptation, is confined to personalty ; and all the cases where
it has been carried farther, will be found to have depended upon con-
text, and therefore not to help this case, where the construction is
merely upon the word itself. 57
Lord EllEnborough, C. J. No case has ever yet come before the
Court touching either a will or any other subject, that I am aware of,
where the Court have been called upon to pronounce on the techni-
cal meaning of the word effects, denuded as it is here of all context,
unless indeed the words "of what nature or kind soever'' can be con-
sidered as context and explanatory of it. In Camfield v. Gilbert, 3
East, 516, and Doe v. Lainchbury, 11 East, 290, it was taken for grant-
ed that effects in its natural signification imports personal effects ; and
no case has yet occurred in which that signification unaided by con-
57 Statement condensed and opinions of Le Blanc, Bayley, and Dampier,
JJ., are omitted.
1066 the "parol evidence" rule (Ch. 7
text has been extended to real estate. Where a testator has used the
general introductory words "as to all my worldly substance," and the
word effects has been coupled with the words "real and personal" as
in Hogan v. Jackson, there it has been considered that the context
gave it a more enlarged and comprehensive sense than it would other-
wise have borne, and the word effects has from the declared inten-
tion of the testator been holden to pass the whole interest in the lands.
And so in Doe d. Chilcot v. White 58 the words "said effects" by ref-
erence to the antecedent bequest, which comprehended both real and
personal, were holden to include the real also ; but that was so held
by the Court not upon the import of the word effects simply, but as it
derived force from the reference that was given to it. On the other
hand it may be said, that in Camfield v. Gilbert the Court in holding
that the word effects did not extend beyond the personalty, did not
decide upon the general import of that word, because there was some
context which favoured the narrower construction, for the testatrix
excepted out of her effects her wearing apparel and plate, which was an
exception clearly of a personal nature, and also directed that her ef-
fects should be divided by her executors. In the present case therefore,
for the first time, the Court is called upon to give it a sense unaided by
context. We have a familiar meaning attached to the word effects, in
its common use, and as it is used in the statutes relating to bankrupts,
where estate and effects, reddendo singula singulis, denote, the one
things personal, the other things real ; and I am not aware of any
case where it has been holden in its primary and original signification to
mean things real. In the present case, if I were asked my private
opinion as to what this testator really meant when he made use of the
word, I must suppose that he meant, that which his duty prescribed
to him, to convey all his property for the maintenance of his family;
but sitting in a Court of Law I am not at liberty to collect his meaning
from matter dehors, but only from the expressions used on the face of
the will. The rule of law is peremptory that the heir shall not be
disinherited unless by plain and cogent inference arising from the
words of the will. Here the subsequent words, "of what nature or
kind soever," are tacitly implied in the preceding word "all," and carry
the sense no farther; they are not an expansion of the word effects
beyond its natural meaning. Admitting that they import that it shall
be taken in its most enlarged sense, I am content to take it so, but I
cannot go beyond its natural sense. It is no doubt a matter of great
regret to be compelled so to decide, because one cannot but feel
that such a decision may, and perhaps will, disappoint what ought to
r >« In this caso, 1 East, 33 (1800), Lord Kenyon observed: "It is very pin in
what the testator meant. After giving a few legacies and bequests he de-
vises all the residue of his property both real and personal of every descrip-
tion to his widow for her life, and then allows her to give what she thinks
proper of her said effects to her sisters for their lives. This description must
apply to the property which lie had been before dealing out, amongst which
Burgc's Cottage is mentioned by name."
Sec. 2) AIDING CONSTRUCTION 1067
have been and what probably was the intention of the testator; but
we cannot yield to our wishes and overstep the fair rule of con-
struction, in order to give to the word a sense more agreeable to our
inclinations and the testator's duties, which sense it does not of itself
bear. We are bound by the terms which he has used, and cannot look-
beyond them into extrinsic matter for their interpretation ; and in the
two cases which I at first mentioned it was considered that effects
primarily imported only personal effects. I think therefore that there
must be the same judgment as we before pronounced.
Judgment for defendant.
FAIRFIELD v. LAWSON et al.
(Supreme Court of Errors of Connecticut, 1883. 50 Conn. 501, 47 Am.
Rep. 6G9.)
David Lawson, the testator, died February 10th, 1881, leaving real
estate of the value of $12,000 and personal estate of the value of
$9,688. He left a will, made in 1868, which was proved after his
death, and which contained the following clauses :
"I give unto William M. Corbin three thousand three hundred and
fifty dollars, in trust for my wife, Polly Lawson. Said trustee shall
pay her the interest of said sum of money in manner following
* * * so long as she shall live. And from and after the death of
my said wife, the interest shall be used and employed and devoted to the
education of the f reedmen, and the interest shall be paid over annually
to the proper officers of the Freedmen's Association for that purpose
by the said trustee."
At the date of the execution of the will and at the time of the death
of the testator there had not been established any voluntary associa-
tion nor any corporation known as the "Freedmen's Association."
There were, however, in existence at the first mentioned date divers
associations, organized for and engaged in the work of educating the
f reedmen. * * *
At the date of executing the will there was also a voluntary asso-
ciation of individuals connected with the Methodist Episcopal Church
engaged in the work of educating the freedmen, known by the name of
"The Freedmen's Aid Society of the Methodist Episcopal Church,
located at Cincinnati, Ohio."
There was no evidence whatever before the court to show that the
last mentioned organization was intended by the testator, except his
verbal declarations as hereinafter mentioned.
The plaintiff offered Samuel E. Fairfield as a witness, who testified
that he drew the will in question at the dictation of the testator, who
said he wanted to give the income of the property in question in
trust for the education of the freedmen, that there was a Freedmen's
Association organized by the Methodist Church People, located in Cin-
1068 the "parol evidence" rule (Ch. 7
cinnati, Ohio and that he wanted it payable to the officers of that as-
sociation.
This evidence was received subject to the defendants' objection.
If legally admissible for the purpose the court finds that wherever in
the will the testator refers to the "Freedmen's Association" he in-
tended the voluntary association known by the name of "The Freed-
men's Aid Society of the Methodist Episcopal Church" located at Cin-
cinnati and organized August 8th, 1866.
If, on the other hand, the verbal declarations of the scrivener are
not admissible or competent to prove the fact above stated, then I find
that there is no evidence whatever to identify the object of the tes-
tator's bounty, described as the Freedmen's Association, and it is im-
possible for the court to determine it.
The court further finds that the term "freedmen," as used in the
will, refers to that class of persons in the United States who were
emancipated from slavery during our late civil war or by its results, and
embraces also the descendants of such persons.
Upon these facts the following questions were reserved for the ad-
vice of this court :
1. Whether the declarations of the testator were admissible for the
purpose stated? 59
Loomis, J. Those parts of the will of David Lawson that are so
obscure as to require the advice of this court relate to the bequests to
the Freedmen's Association and to Fairfield to be used as he pleases.
1. Who can take the legacy payable to the proper officers of the
"Freedmen's Association" ? We cannot advance a single step toward
the solution of this question unless resort may be had to parol evidence,
because the record shows that there was no such organization or cor-
poration in existence as the Freedmen's Association at the date of the
execution of the will; and this expresses but a small part of the
difficulty, for the further finding is that except a single item of parol
evidence, the admissibility of which is one of the questions reserved,
there was absolutely no evidence of* any kind to identify the testator's
bounty.
The evidence in question consisted merely of the oral instructions
given by the testator to the scrivener, Fairfield, "that he wanted to
give the income of the property in question in trust for the education
to the freedmen ; that there was a Freedmen's Association organized
by the Methodist Church people located in Cincinnati, Ohio, and that
he wanted it payable to the officers of that association."
Now it is very common to admit parol evidence in cases for the
construction of wills. The difficulty here is not owing merely to the
fact that the evidence is oral, but to its relation to the written words
of the will. The law is imperative that the entire will must be in
writing, and herein are found the rules and limitations that must be
6» Statement condensed.
SeC. 2) AIDING CONSTRUCTION IOC!)
applied to such evidence. The intent must in every case be drawn
from the will, but never the will from the intent. The test therefore
to be applied in all cases where evidence like that under consideration
is tendered, is, whether there appears on the face of the will suffi-
cient indication of intention to justify the application of the evidence.
The words of the will are so controlling that if they apply with exacti-
tude to one person, such person will take the legacy, although parol
and extrinsic evidence might make it perfectly clear that another per-
son less exactly described was the one intended.
This principle was applied by this court in the recent case of Dun-
ham et al. v. Averill et al., 45 Conn. 61, 29 Am. Rep. 642, where the
legacy was to "The American and Foreign Bible Society," and it ap-
peared that that society was one mainly supported by the Baptist de-
nomination ; but that there was another society supported by the
Congregational and Presbyterian denominations, named the "American
Bible Society," sometimes called "The American and Foreign Bible
Society," and that the testator's sympathies and preferences were all
with the latter; and evidence was offered that while the will was
being drawn the testator said to the scrivener that he wished to give
the money to the Bible Society sustained by the Congregationalists
and Presbyterians ; that he was not sure as to its corporate name, but
believed it to be "The American and Foreign Bible Society" ; but the
evidence was held not admissible. So it has been uniformly held that
parol evidence cannot be received to correct a mistake in the will.
Avery v. Chappel, 6 Conn. 270, 16 Am. Dec. 53 ; Comstock v. Had-
lyme Ecc. Society, 8 Conn. 254, 20 Am. Dec. 100; Tucker v. Sea-
men's Aid Society, 7 Mete. (Mass.) 188; Jackson v. Sill, 11 Johns.
(N. Y.) 201, 6 Am. Dec. 363.
The principle we are contending for is also applied in another class
of cases, where parol and extrinsic evidence is admitted. I refer to
the rule derived from the maxim, "Falsa demonstratio non nocet, cum
de corpore constat," where the office of the parol evidence is to re-
ject that part of the description which is false, but in such case it is
indispensable that enough remains in the words of the will to show
plainly the intent, but in no case can any words be added to the de-
scription.
Another prominent rule is, that when the question is one of con-
struction the parol or extrinsic evidence must be ancillary to a right
understanding of the language of the will ; hence all direct evidence
of intention as contra-distinguished from evidence to show the mean-
ing of the written words in the will is inadmissible. This rule is well
illustrated by the case of Goblet v. Beechey, given at length in the
second American edition of Wigram on Extrinsic Evidence, p. 287,
Appendix, and also briefly reported in 3 Simons, 24. Nollekins, the
sculptor, by a codicil to his will desired that "all the marble in the yard,
tools in the shop, bankers, mod, tools for carving, &c, should be the
property of the plaintiff. A lady who was an attesting witness was of-
1070 the "parol evidence" rule (Ch. 7
fered to prove that before she subscribed her name she read the codicil
in the hearing of the testator and when she came to the word "mod"
she asked him what he meant by it, and he replied "models." Sir John
Leach, Vice Chancellor, held the testimony inadmissible, but allowed
an inquiry as to the meaning of the term itself from the testimony
of sculptors. See also cases referred to in 2 Phillips's Evidence (Cowen
& Hill's notes) p. 754.
So far the rules referred to, if applied to the evidence in question,
rigidly exclude it. Is there then any exception or additional rule un-
der which it may be received? The case shows that it was sought for
the purpose of ascertaining the beneficiary, to prove the specific in-
tention of the testator by his oral declarations to the scrivener who
drew the will. There is only one rule that can be invoked as ap-
plicable to such a case. This is stated very clearly by Lord Abinger,
Chief Baron, in Hiscocks v. Hiscocks, 5 Mees. &.Wels., 363, whose
opinion, Redfield says, in his Treatise on Wills, vol. 2, p. 566, is
universally admitted to have settled the law that such evidence is onlv
admissible in the one instance there stated, namely, "where the mean-
ing of the testator's words is neither ambiguous nor obscure, and
where the devise is, on the face of it, perfect and intelligible, but, from
some of the circumstances admitted in proof, an ambiguity arises as
to which of the two or more things, or which of the two or more
persons, each answering the words in the will, the testator intended 60
to express. Thus, if a testator devise his manor of S. to A. B. and
has two manors of North S. and South S., it being clear he means to
devise one only, whereas both are equally denoted by the words he
has used, in that case there is what Lord Bacon calls 'an equivocation,'
that is, the words equally apply to either manor, and evidence of pre-
vious intention may be received to solve this latent ambiguity ; for
the intention shows what he meant to do ; and when you know that,
you immediately perceive that he has done it by the general words he
has used, which, in their ordinary sense, may properly bear that con-
struction. It appears to us that, in all other cases, parol evidence of
what was the testator's intention ought to be excluded, upon this plain
ground, that his will ought to be made in writing, and if his intention
cannot be made to appear by the writing, explained by circumstances,
there is no will."
Now it seems to us that under this rule the proposed evidence can-
not apply, because the words of the will describing the beneficiary do
eo This exception appears to be recognized everywhere, and the only con-
troversy is whether it should be strictly or liberally applied. In England it
to be now settled that the exception can only apply where there are
two persons or things, each equally answering to the name or description.
Charter v. Charter, 7 L. K. II. L. Cas. 364 (1874).
in Mime- .,f the American cases there is a decided tendency to admit the
lence where there are two persons to either of whom the description might
apply, though more naturally applicable to one than the other. Wlllard v.
Darrah, 168 Mo. 660, 68 8. W. 1023, 90 Am. St. Rep. 468 (1902).
Sec. 2) AIDING CONSTRUCTION 1071
not apply equally to two or more, "each answering to the words of the
will." On the contrary the words used are not applicable to any
known organization, either voluntary or incorporated. Such in sub-
stance is the finding. When therefore we learn from the parol evi-
dence what the actual intent was, we do not "immediately perceive that
the testator has effectuated his intent by the general words he has used;"
on the contrary, the effect of the evidence in this case is rather to in-
crease the mystery that hangs over the words in the will. The name
"Freedmen's Association" in itself considered would naturally import
an association composed of freedmen, as the names "Lawyers' As-
sociation," "Doctors' Association," "Farmers' Association," would in-
dicate the membership of each.
It is very strange, if the testator gave such instructions to the
scrivener as the evidence indicates, that no one of the prominent
features of his description should find its way into the will as written.
The prominent things in his description were, the religious body that
organized the association and its location at Cincinnati, Ohio, but of
these things the words of the will are silent, and it does not appear
how or why the words "Freedmen's Association" alone were used;
there was no discussion concerning the name ; no suggestion that the
name used would be sufficient, nor that the Cincinnati society had ever
been so called. As the case stands upon the record the instructions
given by the testator were not carried into effect by the scrivener,
and the court has no power to correct the mistake, as it would upon
like evidence correct a mistake in a contract. We should be virtually
making a will as to the beneficiary from the actual intent proved only
by parol.
[The conclusion was that the provision in question was void for
uncertainty.] 01
In re GOODS OF ASHTON.
(Court of Probate. [1S92] L. R. Prob. Div. 83.)
The testator in this case left a will duly executed by which he ap-
pointed four executors. Two of them he described as his nephews,
viz., "my nephew George Ashton," and "my nephew Esau Ashton."
There was a "George Ashton," the illegitimate son of his sister, and
Esau Ashton was his son, and there was also a "George Ashton" who
was a legitimate nephew, being the son of testator's brother. The
only question in the case was whether parol evidence could be receiv-
ed to shew that the testator intended to nominate his illegitimate
nephew as executor; and it was agreed that if such evidence were
si See, also. Griscora v. Evens, 40 N. J. Law, 402. 20 Am. Rep. 251 (ISTTi.
where it was sought to show by the testator's instructions that a part of the
descriptive words were the result of mistake. And so in Tucker v. Seaman's
Aid Society, 7 Mete. (Mass.) 1SS (1S43). A number of the cases are collected
in 6 L. R. A. (N. S.) 965.
1072 the "parol evidence" rule (Ch. 7
admissible there could be no doubt that the intention of the testator
was to appoint the illegitimate nephew. It also appeared that the tes-
tator had in the will described as "my niece" a person who was his
illegitimate niece.
It was agreed between the parties that, to save expense, the ques-
tion should be decided on motion.
Jeuxe, J. The case has been well argued, and although on one
point, if it were the only one, I should have wished to look further
into the authorities, on another point there appears to me to be no
great doubt. The question is whether where the testator speaks of
his "nephew" he must be held to be speaking of an illegitimate or of
a legitimate nephew, and whether you can call in parol evidence to
shew which of the two he intended. Two points are to be kept quite
separate. The first point is whether in the word "nephew" per se
there is a latent ambiguity which will entitle us to inquire whether by
the word the testator meant his legitimate or illegitimate nephew. If
the matter turned upon that point alone, although I have an opinion,
I should have expressed it with much hesitation, because it appears
to me there is considerable conflict of authority. The question is,
can one say that the word "nephew" — though in its primary sense ap-
plicable to a legitimate nephew only — may be properly applied, in its
ordinary and popular sense, to illegitimate as well as legitimate rela-
tives? If it can, then there is a latent ambiguity, and parol evidence
may be introduced. There is a conflict of authority as to how the
word "nephew" may be read. There is the case of Grant v. Grant
[Law Rep. 2 P. & D. 8, Law Rep. 5 C. P. 380, 727] 62 which was
62 in this case the will gave property to "my nephew Joseph Grant," and
it appeared that testator had a nephew of that name, and that his wife's
nephew had the same name. In the court below evidence was admitted to
show that testator had brought up his wife's nephew as a member of his
family, and that he was not acquainted with his own nephew, and probably
• lid not know his given name; evidence was also admitted to show testator's
instructions specifically referring to his wife's nephew. The decision was in
favor of the nephew by marriage, and this was affirmed by the appellate
court, without specifically deciding whether the testator's instructions should
be considered. On this point see guarded opinion by Blackburn, J.
In Charter v. Charter, 7 L. R. H. L. Cas. 3G4 (1874), the language of the
will on its face was more naturally applicable to the older son than to the
younger. The younger son w:is thought entitled to the property in view of
all the facts, but the court held that the testator's declarations could not be
considered, the Lord Chancellor observing:
"My Lords, upon one part of the case I have never entertained any doubt.
I hold it to bo dear, as I think all your Lordships do, that this is not a case
in which any parol evidence of statements of the testator, as to whom he
Intended to benefit, or supposed ho had bonoiited, by his will, can be received.
The Learned Judge of the Probate Court, Lord Penzance, appears to have ad-
mitted evidence of this description, although be states that his Judgment
would have boon the same if the evidence bad been excluded. I am of opin-
ion thai it OUght to have been excluded. The only case in which evidence of
this kind <;m be received is where the description of the legatee, or of the
thing bequeathed, is equally applicable In all its parts to two persons, or two
things. That clearly cannot, he said of the present case.
"But, my Louis, there is a class of evidence which in this case, as in all
SeC. 2) AIDING CONSTRUCTION 1073
heard three times. Lord Penzance, the Court of Common Tleas, and
the Court of Exchequer Chamber all held that the word, although in
its primary sense importing consanguinity, might in the secondary
sense mean affinity, and that parol evidence could be adduced to shew
which was intended. If that be so, and if "nephew" can be used in
so general a sense as to include both consanguinity and affinity, it
might fairly be said to include both legitimate and illegitimate nephews
and nieces. But the difficulty is that Grant v. Grant, does not appear
to have been unchallenged. It must be admitted that the late Master
of the Rolls in Wells v. Wells [Law Rep. 18 Eq. 504], disapproved
of the decision in Grant v. Grant. But, speaking with the profoundest
deference of the decision of so great a judge, it may be doubted wheth-
er the two decisions of the Court of Appeal which he preferred to
Grant v. Grant, namely, In re Blower's Trusts [Law Rep. 6 Ch. 351]
and Sherratt v. Mountford [Law Rep. 8 Ch. 928], are really opposed
to that case. Indeed, in the latter case, James, L. J., appears to refer
to Grant v. Grant with approval. It must be admitted also that Malins,
V. C, in Merrill v. Morton [17 Ch. D. 382], seems to have preferred
to follow Sir G. Jessel rather than Grant v. Grant. I do not think
that is weakened by the observation that Malins, V. C, admitted the
principle of interpretation of Grant v. Grant in In re Wolverton Mort-
gaged Estates [7 Ch. D. 197], because all he held there, I think, was,
that the words "Thomas" and "Tom" being synonymous there was a
latent ambiguity which was to be explained. You have,, therefore, the
authority of Sir G. Jessel and Malins, V. C, one way, and Grant
v. Grant and I think Sherratt v. Mountford [Law Rep. 8 Ch. 928]
the other. Under these circumstances, if I had had to decide the ques-
tion on that point, I should have followed Grant v. Grant partly because
of the great number of judges who concurred in it, and partly because
the decision commends itself to my own mind. But I do not wish to
put my decision on that point. There is another point which seems to
me stronger. In this will the testator, to use the language of Lord
Cairns in Hill v. Crook [Law Rep. 6 H. L. 265, 285], has made us a
dictionary. If he had done it in terms, there would have been nothing
more to be said ; but he seems to me to have done it practically because
he has used the word "nephew" where it clearly meant an illegitimate
grand-nephew, and he has also described as his "niece" a person who
cases of testamentary dispositions, is clearly receivable. The Court has a
right to ascertain all the facts which were known to the testator at the time
he made his will, and thus to place itself in the testator's position, in order
to ascertain the bearing and application of the language which he uses, and
in order to ascertain whether there exists any person or thing to which the
whole description given in the will can be, reasonably and with sufficient cer-
tainty, applied.
"I may refer, as well-known authorities for these propositions, to the cases
of Doe v. Hiscocks, 5 M. & W. 363 [1S391, Bernasconi v. Atkinson. 10 Hare,
345 [1853], and Drake v. Drake, in this House, 8 II. L. C. 172 [18G0]."
Hint.Ev.— 68
1074 the "parol evidence" rule (Ch. 7
was his illegitimate niece. He has made his dictionary for us in an
unambiguous way, and if we are entitled to use that dictionary it makes
the case clear. But are we entitled to use it? There is a conflict of ju-
dicial authority on this point ; but I think it is clear on which side the
preponderance lies. The case of Hill v. Crook [Law Rep. 6 H. L. 265,
285], may itself be referred to, but other cases seem to me nearer to
the present. In re Blower's Trusts [Law Rep. 6 Ch. 351] I think the
Court of Appeal expressed an opinion that the words "nephews and
nieces" might be understood in a sense more general than their pri-
mary sense if there was anything in the language of the testator to
shew he intended such a construction. On the other hand, In Wells
v. Wells [Law Rep. 18 Eq. 504] the late Master of the Rolls, follow-
ing the decision of Wood, V. C, in Smith v. Lidiard [3 K. & J. 252],
held that "you cannot import the secondary meaning of the word into
the residuary gift merely because it has been used in the former part
of the will." It is true that in Merrill v. Morton [17 Ch. D. 382],
Malins, V. C, also followed Smith v. Lidiard [3 K. & J. 252] ; but
that learned judge intimated that if he were unfettered by authority he
should have come to a different conclusion on the point. But then
comes the recent case of In re Jodrell [44 Ch. D. 590; (1891) A. C.
304], which is a case of the highest authority. In that case it was
held that the Court was entitled to look to the other parts of the will
to see what sense the testator had put on particular words, and that
when it was found that he had employed the word "cousins" to mean
both legitimate and illegitimate cousins, it was permissible to say that
in using the word "relatives" he included relatives who were illegiti-
mate. Following that, it appears to me clear that the testator here
has given us his own interpretation of the language which he has
used. He has shewn that when he used the word "nephew" he
meant illegitimate as well as legitimate nephews, and when he used
the word "niece" he meant it to refer to his illegitimate niece. There-
fore, when he speaks of his nephew George Ashton — he may have
meant either one or other — there is a latent ambiguity, and parol
evidence may be let in to explain it. But, as it is admitted that if parol
evidence is let in, it is shewn that George Ashton, the illegitimate
nephew, is the person whom the testator intended, I grant probate of
the will to the applicants.
Probate granted.
SeC. 2) AIDING CONSTRUCTION 107.")
In re ROOT'S ESTATE.
(Supreme Court of Tennsylvauia, 1898. 187 Pa. 118, 40 Atl. 818.)
Dkan, J. The question for consideration is as to the identity of a
legatee under the decedent's will. The testator died October 23, 1882,
having executed his will on October 11th of same month. By the will
he gave to his wife the entire income of his estate during life, and
at her death distributed the principal among relatives of himself and
wife, and also made bequests for charitable and religious purposes.
The widow died April 28, 1895, and the estate is now for distribution.
In the fourth item of his will the testator says : "And, from and im-
mediately after the decease of my said dear wife, I do give, devise, and
bequeath as follows, to wit: Unto my nephew William Root the
legacy or sum of one thousand dollars." To all the legatees he gave an
equal share in his residuary estate. This, added to the $1,000, made
William Root's share about $2,000. On distribution before Auditing
Tudge Hanna, the only question raised was as to the William Root
legacy. The testator had a blood nephew, William Root, son of his
brother, Bartholomew Root. There was also a William Root, a nephew
of his wife, but not of kin to the testator. Each claimed the legacy.
The auditing judge held there was no ambiguity in the will calling for
the introduction of parol testimony ; that the description of the legatee,
"my nephew William Root," fitted exactly his nephew by blood.
Therefore he awarded to him the legacy. On exceptions before the
court, the decision was not concurred in, and the adjudication was re-
ferred back to the auditing judge, that parol testimony might be taken
as to which nephew was intended by testator. After hearing quite a
number of witnesses as to the degree of intimacy between the testator
and the two nephews; that he showed more affection for his wife's
nephew than his own; that he was not on good terms with his own
nephew's father; and that he frequently expressed an intention to
favor his wife's nephew, — the auditing judge concluded, from the
weight of the evidence, testator intended his wife's nephew as the lega-
tee, and so awarded. This adjudication was confirmed by the court,
and we have this appeal by William Root, testator's own nephew.
Is there any ambiguity in this will which would warrant the intro-
duction of parol evidence to identify one of the legatees? The words
are, "to my nephew William Root." There is a person answering this
description exactly, the son of his brother, Bartholomew. The gist
of the decision is that, to relieve the will of ambiguity, the testator, in-
stead of saying, "Unto my nephew William Root," should have said,
"Unto my nephew William Root, not my wife's nephew William Root,
the legacy of one thousand dollars." But, as it stands, the negative is
necessarily implied. Why, by additional words, express an inevitable
implication ? When he accurately described the only legatee who could
take under that description, why should he, by negative words, ex-
1076 the "parol evidence" rule (Ch. 7
elude one who was not described? Why, from the will alone, should
we suppose, when he said, "my nephew," he may have meant some
other person's nephew. There is, then, no ambiguity arising on the face
of the will calling for parol testimony to make clear the intention.
A doubt as to the intention is raised by evidence outside the will,
but not by the will itself. We can make a will for the testator, by
ascertaining from witnesses that his wife had a nephew of the same
name, who, from his greater intimacy with and kindness to his aunt's
husband, was more deserving of the legacy than the blood nephew,
and therefore, according to our notions, ought to have it. In other
words, we create a doubt where, by the will, the intention is beyond
doubt. The witnesses called are the neighbors of the testator. It is by
no means rare that the neighbors and friends of a testator think they
could have made a better will for him than he made himself, but the
property was his to dispose of, not theirs, nor is it ours, when his inten-
tion was plainly expressed.
It is seldom the authorities on a question are so many and pointed
as on this one. A "nephew," according to all the lexicographers, is the
son of one's brother or sister. Sometimes the word includes grand-
nephew. In Appel v. Byers, 98 Pa. 479, the words of the will were :
"It is my will, and I hereby devise, that my nephew Philip Byers shall
have and hold, after the death of my wife, all my real and personal es-
tate." At the death of testator two nephews known by that name
made claim. One, however, was illegitimate. The question as to which
was intended was submitted to a jury on evidence dehors the will.
They found the one intended was the illegitimate one, and the court en-
tered judgment in his favor. On appeal to this court the judgment was
reversed, on the ground that the words, "my nephew Philip Byers,"
meant his legitimate nephew, because, without further description, they
applied to him and to no other. It was further held, following Wust-
hoff v. Dracourt, 3 Watts (Pa.) 240, that "the modern doctrine is that
where a subject exists which satisfies the terms of the will, and to which
they are perfectly applicable, there is no latent ambiguity. Evidence is
only admitted dehors the will, from necessity, to explain that which
otherwise would have no operation. If the rule were held otherwise,
a person could feel no security in making a will. His intention clearly
expressed in writing, and the object of his bounty found, in all respects
answering the description, might be defeated, and the statute relating to
wills be made practically inoperative." The doctrine referred to as
modern in the opinion is a quotation from Wusthoff v. Dracourt, supra,
decided in 1834. While the appellation "modern" may have been cor-
rect at that date, yet after being followed for 65 years, it may now
be termed "old."
In Green's Appeal, 42 Pa. 25, the bequest was: "And as regards
the rest, residue, and remainder of my moneyed estate, I give and de-
niie to all my nephews and nieces, share and share alike."
The testatrix was childless. Her husband, from whom came the larger
Sec. 2) AIDING CONSTRUCTION 1077
part of her estate, had died years before. She had nephews and nieces
of her own, and there were nephews and nieces of her husband. In the
former part of the will she had given several special legacies to her hus-
band's nephews and nieces, by the words, "my nephew," or "my niece,"
but in no case was there any uncertainty as to the one designated.
There were circumstances, apart from the will, which pointed to an
intention to include, in the residuary clause, all the nephews and nieces
of both husband and wife. The court below so held, and made distribu-
tion accordingly. On appeal this court reversed the decree, holding
that the residuary clause meant just what it said, — her own nephews
and nieces, and not those of her husband. In the will before us the tes-
tator evidently understood the distinction between the "courtesy title,"
as it is termed in Green's Appeal, supra, and the proper application
of it to his blood relations. In no less than seven of the legacies he
uses such words as "my wife's sister," "my wife's cousin," "my
brother-in-law." In only two instances does he fail to distinguish his
wife's relatives by the proper term, and in those there is no similarity
in name which could possibly create doubt. He knew there were two
nephews of the same name, — one his and one his wife's. He was well
acquainted with both. Nevertheless he uses words designating, as the
object of his bounty, his own nephew, and by those very words nec-
essarily excludes his wife's.
The only case cited by the court below to sustain its ruling is In re
Ashton [1892] Prob. 83, an English case. The testator appointed, as
one of his executors, "my nephew George Ashton." There were two
nephews of that name, one legitimate and the other illegitimate. The
latter was permitted to prove that he was the one intended, and letters
were issued to him. We do not adopt this as authority. It, in effect,
overrules our whole line of authorities in analogous cases, and is in di-
rect conflict with Appel v. Byers, supra, in which the facts were almost
precisely the same. The English case, in substance, adopts the doctrine
of Powell v. Biddle, 2 Dall. 70, 1 L. Ed. 293, 1 Am. Dec. 263, a case
decided in 1790. The testator made a bequest of £100 to Samuel
Powell. There was a half brother of Samuel, son of testator's daugh-
ter,- named William, who claimed the bequest was intended for him,
and the court permitted this to be proven by evfdence outside the will,
and the legacy was awarded to William. This case was expressly dis-
regarded as authority in Appel v. Byers, supra, and it was there said
it had been in effect overruled by Wusthoff v. Dracourt, supra, decided
in 1834.
We think the opinion of the learned auditing judge, in his first ad-
judication, was a correct exposition of the law, and ought to have
been sustained. The decree of the court below is therefore, reversed,
and it is directed that the legacy in contention be awarded to William
Root, son of testator's brother, Bartholomew Root; costs of this ap-
peal to be paid by appellee.
1078 the "parol evidence" rule (Ch. 7
COON et al. McNELLY et al.
(Supreme Court of Illinois, 1912. 254 111. 39, 98 N. E. 218.)
Carter, C. J. Certain of the defendants in error filed a bill in the
circuit court of Monroe county against other defendants in error and
die plaintiff in error, Albert H. Johnson, asking for the partition of
lands devised under the will of E. L. Morrison, deceased. From the
decree construing that will and ordering the partition, this writ of
error was sued out.
The cause was heard by the circuit court on an agreed stipulation
of facts. Morrison died testate on October 20, 1910. His will, after
providing for the payment of just debts and funeral expenses and for
certain specific legacies, reads (clause 7) : "I give and bequeath all
the remainder of my estate, both real and personal, including lands,
notes and moneys, to my grandchildren." Morrison left no widow,
father, mother, sister, child, or children, or descendants of any de-
ceased sister, brother, or child, but left as his only surviving heir at
law the plaintiff in error, Johnson, who was a brother of the half
blood. Some years before his death Morrison married a widow,
Mrs. Susan Mattingly, who had by a former marriage three children.
Mrs. Morrison predeceased her husband. Her three children were
all married at the time of the testator's death. One had one child,
another two children, and another nine; all of said twelve children
being grandchildren of Mrs. Morrison. While he had no grandchil-
dren of his own, Morrison had at all times since his marriage to Mrs.
Mattingly referred to her grandchildren as his grandchildren. After
his marriage with Mrs. Mattingly, her three children, who were then
12, 14, and 16 years old, respectively, lived for several years with
them as members of the family. The grandchildren of Mrs. Morri-
son had always referred to and called the testator "grandfather."
At the time the will was executed the testator did not know whether
the half-brother, plaintiff in error, was living, as clause 4 of the will
reads : "I give and bequeath to my half-brother, Albert H. John-
son, one thousand dollars ($1,000). I not knowing where he is, I
order my executor to put an advertisement in the St. Louis Globe-
Democrat and Post-Dispatch daily for one week, and if he is not found
in three years the said thousand dollars is to go to John Mattingly."
( )n these facts the chancellor decreed that under clause 7 of the will
the testator left the remainder of his property to the twelve grandchil-
dren of his wife.
It is contended by plaintiff in error that extrinsic evidence was
improperly admitted to show what persons testator meant by "my
grandchildren," in said clause; that, as he had no grandchildren, the
property purported to be devised by said clause 7 is intestate, and
went by descent to plaintiff in error, as testator's sole heir at law;
SCC. 2) AIDING CONSTRUCTION 107!)
that in this will there is a want of persons to take under the clause in
question.
In construing wills, the paramount rule is to ascertain the inten-
tion of the testator, and give "it effect, if not prohibited by law. Brads-
by v. Wallace, 202 111. 239, 66 N. E. 1088. In seeking this intention,
the relation of the parties, the nature and situation of the subject-
matter, the purpose of the instrument, and the motives which might
reasonably be supposed to influence the testator in the disposition of
his propertv may be considered. Wardner v. Baptist Memorial Board,
232 111. 606, 83 N. E. 1077, 122 Am. St. Rep. 138. The rule as to
the exclusion of evidence offered to explain written instruments does
not exclude the circumstances in which testator was placed, or the
collateral facts surrounding him, at the time the will was executed.
1 Greenleaf on Evidence, § 297. "The law is not so unreasonable
as to deny to the reader of any instrument the same light which the
writer enjoyed." Wigram on Wills (2d Am. Ed.) 161; Decker v.
Decker, 121 111. 341, 12 N. E. 750.
For the purpose of determining the object of a testator's bounty, a
court may inquire into every material fact relating to the person who
claims to be interested under the will, in order to identify the person
intended by the testator as a legatee. Wigram on Wills (2d Ed.)
prop. 5', p.' 142. This learned author says: "The necessary conse-
quence, in such a case, of bringing the words of the will into con-
tact with the circumstances to which they refer, must be to determine
the identity of the person intended." 2 Wigram on Wills, p. 155,
and cases cited. If the word "child," "children," "grandchildren,"
"son," or "family" is used in a will, "parol evidence is admissible of
any extrinsic circumstances tending to show what person or persons
or what things were intended by the party, or to ascertain his mean-
ing in any other respect." 1 Lewis' Greenleaf on Evidence, § 288.
A nickname has been held a sufficient description of the object of a
testator's bounty ; it being proved that the testator was in the habit of
calling the legatee by such name. So, also, a name gained by reputa-
tion, "though not strictly appropriate, has been held a sufficient de-
scription of the person intended. Wigram on Wills (2d Ed.) prop. 5,
P- 144.
Tested by the principles of law laid down in these authorities, and
interpreting the will in the light of the surrounding circumstances at
the time it was executed, manifestly the testator meant, by the words
"my grandchildren," the grandchildren of his wife.
The decree of the circuit court will be affirmed.
Decree affirmed.
1080 the "parol evidence" rule (Ch. 7
SIEGLEY v. SIMPSON et al.
(Supreme Court of Washington, 1913. 73 Wash. 69, 131 Pac. 479, 47 L. R. A.
[N. S.] 514, Ann. Cas. 1915B, 63.)
Mount, J. 63 The question in this case is whether parol evidence
is admissible in the construction of a will which devises "unto my
friend Richard H. Simpson the sum of six thousand dollars," where
the legacy is claimed by each of two persons, one named "Richard
H. Simpson" and the other "Hamilton Ross Simpson." The facts
are briefly as follows: M. J. Heney, a bachelor, died on October 11,
1910, in San Francisco, Cal., leaving an estate valued at between $750,-
000 and $1,000,000. Prior to his death he made a will by which he
left his estate to certain relatives and friends. The sixteenth clause
thereof provided as follows: "I give, devise and bequeath unto my
friend Richard H. Simpson the sum of six thousand dollars, and I
direct that my executors and trustees hereinafter named pay the same
to him as soon after my death as the condition of my estate in the
discretion and judgment of my executors will permit." Thereafter
the will was duly probated in King county, in this state. Executors
and trustees were appointed, and one Richard H. Simpson and one
Hamilton Ross Simpson each claimed the legacy mentioned in the
section of the will above quoted. The executor then filed a petition,
asking the court to bring the said claimants in and determine the
disputed claims. This was accordingly done under the statute. Each
of the claimants appeared and set up his claim. The lower court
thereupon heard evidence, and determined that Hamilton Ross Simp-
son was intended as the beneficiary under the will, and directed the
executor to pay the legacy to him. Richard H. Simpson has ap-
pealed from that order.
He argues that parol evidence is not admissible to prove that the
testator when he used the name Richard H. Simpson meant Hamilton
Ross Simpson, when there is a Richard H. Simpson in existence who
claims under the will. * * *
Necessarily extrinsic C4 evidence is admissible to prove the identity
of the beneficiary named in a will, especially when two or more per-
sons are claiming to be beneficially named — not for the purpose of
varying the terms of the will, but to determine the person meant by
the testator. Connolly v. Pardon, 1 Paige's Ch. (N. Y.) 291, 19 Am.
Dec. 433; Wilson v. Stevens, 59 Kan. 771, 51 Pac. 903; Collins v.
Capps, 235 111. 560, 85 N. E. 934, 126 Am. St. Rep. 232.
In Acton v. Lloyd, 37 N. J. Eq. 5, the court, after hearing ex-
trinsic evidence as to the identity of the devisee, held that a bequest
to Dickey Lloyd was intended for David S. Lloyd. In Camoys v.
«3 Part of opinion of Mount, J., and the opinion of Chadwick, J., omitted.
«* In the omitted passage the court quoted at length from 30 Am. & Eng.
Enc. of Law, 673, 682, 08:j, and from 40 Oyc. 1429, 1435.
Sec. 2) AIDING CONSTRUCTION 1081
Blundell, 1 H. L. C. 77, 9 Eng. Rep. 969, the court, after examining
extrinsic evidence, concluded that Thomas Weld Blundell was en-
titled to a legacy by a will which named Edward Weld, his brother, as
legatee. The court there said : "For if it be clear, upon the due con-
struction of the will with reference to the evidence of the state of the
family as known to the testator, that the meaning of the testator as
expressed by the will was that the person described, and not the per-
son named, was to take, the description will prevail over the name.
* * * " In Woman's Foreign Missionary Society v. Mitchell, 93
Md. 199, 48 Atl. 737, 53 L. R. A. 711, the court said: "It is the
identity of the individual, natural or artificial, that is material, and
not the name, for that is simply one of the numerous means by which
the identity is ascertained. The identity being established, the name
is of no importance." In Hockensmith v. Slusher, 26 Mo. 237, the
court said: "The general rule is that parol evidence cannot be ad-
mitted to supply or contradict, enlarge, or vary the words of a will, nor
to explain the intention of the testator, except in two specified cases :
(1) Where there is a latent ambiguity, arising dehors the will, as to
the person or subject meant to be described; and (2) to rebut a
resulting trust." See, also, Reformed Presbyterian Church v. Mc-
Millan, 31 Wash. 643, 72 Pac. 502.
In this case if there had been two different persons by the name ol
Richard H. Simpson, and who in other respects answered the descrip-
tion in the will, and these two persons were claiming as legatees, clearly
extrinsic evidence would be admissible to determine the identity of
the person named in the will. For the same reason and upon the
same principle, where there are two persons each claiming to be the
beneficiary because they are each described in the will, the court must
decide from extrinsic evidence if need be which is the person intended.
And that is what was done in this case. The evidence is plain that
by the words, "I give * * * unto my friend Richard H. Simpson
the sum of six thousand dollars," the testator referred to his friend
Hamilton Ross Simpson, the respondent here, for the latter was his
employe, and had been so for several years in Alaska, and assisted
the testator in railway work where the testator accumulated his es-
tate. Hamilton Ross Simpson was the testator's personal associate
much of the time in Alaska, and the testator had told different per-
sons that he had made provision for him in his will. The testator,
while he was intimate with H. R. Simpson, the respondent, did not in
fact know his given name or the order of his initials, and always
addressed him as "Mr. Simpson" or "Bill" or "Rotary Bill," as he was
commonly known on account of his ability to handle a railroad rotary
snowplow. Richard H. Simpson, the appellant, was not a friend of
the testator, had met him only once in 20 years, and then merely spoke
to him as they passed by. These and other facts not necessary to
recount led the trial court to conclude that the testator used the name
Richard H. Simpson when he referred to and really intended the
10S2 the "parol evidence" rule (Ch. 7
person and name of Hamilton Ross Simpson as his beneficiary. Un-
der the rule as above stated, where the beneficiary is not precisely de-
scribed, extrinsic evidence was proper, and we are satisfied that the
trial court correctly interpreted the intent of the testator and the mean-
ing of the will.
Judgment affirmed. 6B
LOMAX et al. v. LOMAX et al.
(Supreme Court of Illinois, 1905. 218 111. 629, 75 N. E. 1076, 6 L. R. A.
• [N. S.] 942.)
Magruder, J. 69 The original and amended bills in this case were
filed by the appellants for the partition of certain lands in Cook coun-
ty, 111. The interests of the parties are derived through the will of
John A. Lomax, deceased, which bore date January 21, 1897, and was
admitted to probate in the probate court of Cook county on June 9,
1899. At the time of his decease, the testator, John A. Lomax, was
the owner of the S. W. fractional % of section 14, township 40 N.,
range 12 E. of the third principal meridian ; but he was not, at the
time of his death, the owner of, nor had he at any time been seised or
possessed of, the S. W. fractional 14 of section 24, township 40 N.,
range 12 E., etc. The testator left a widow, named Maria Lomax, and
three sons, to wit, James H. Lomax, George Lomax, and Robert D.
Lomax. He owned a large amount of land, and by the terms of his will
devised most of the pieces of land owned by him to his wife and his
three sons as tenants in common. One of the paragraphs in his will was
as follows : "I give, devise, and bequeath unto my wife, Maria Lomax,
and my sons, James H. Lomax, George Lomax, and Robert D. Lomax,
as tenants in common, the following described parcels of land, situated
in the town of Leyden, county of Cook, Illinois, namely, the southwest
fractional quarter of section 24, T. 40 N., R. 12 E. of the 3d P. M.,
containing about 55.87 acres more or less." The will also contained the
following devise : "All the rest, residue, and remainder of my estate,
either real, personal, or mixed, wheresoever situated and of whatsoever
nature, I give, devise, and bequeath unto my sons, James H. Lomax,
George Lomax, and Robert D. Lomax, equally between them."
* * *
In order to sustain the decree entered by the court below, it will be
necessary to hold that the testator made a mistake and devised land in
section 24, instead of land in section 14, and that, as he owned no land
in section 24 and made no devise of land in section 14, the land in
section 14 passed as intestate estate under the residuary clause to the
three sons, and the widow took no interest thereon. But if this court
\ number <>f the cases are collected iu the note to the principal case, 17
L. k. A. (N. S.i 53 I.
00 Part of Opinion omitted.
Sec. 2) AIDING CONSTRUCTION 10S3
can hold that the testator, or the scrivener who drew his will, made a
mistake in writing section 24, instead of section 14, then the land in
section 14 passed equally to the widow and the three sons together,
so that her interest would be an undivided one-fourth. We are unable
to see why this case does not come within the doctrine announced in
Kurtz v. Hibner, 55 111. 514, 8 Am. Rep. 665, and reindorsed in Bingel
v. Volz, 142 111. 214, 31 N. E. 13, 16 L. R. A. 321, 34 Am. St. Rep. 64;
Williams v. Williams, 189 111. 500, 59 N. E. 966, and Vestal v. Garrett,
197 111. 398, 64 N. E. 345. * * *
So, in the case at bar, parol evidence cannot be introduced for the
purpose of showing that a mistake was made by writing "section 24"
in the will, instead of "section 14." It is well settled that equity will
not entertain a bill to reform a will under the guise of an attempt to
construe the will. The terms of the devise here are on their face
clear and unambiguous, being a devise of land in section 24. The
language describes a tract of land, and one which is capable of being
readily identified; a'nd, if the testator had owned it, it would have
passed by the terms of the will.
In some cases it has been held that a latent ambiguity arises when
extrinsic evidence is applied to such a devise as this, and that such
evidence may be resorted to for the purpose of explaining the ambi-
guity and showing what land the testator intended to devise. It should
always be the object of the court to arrive, if possible, at the inten-
tion of the testator; but "the intention to be sought for is not that
which existed in the mind of the testator, but that which is expressed
by the language of the will. While, in attempting to construe a will,
reference may be made to surrounding circumstances, for the purpose
of determining the objects of the testator's bounty or the subject of
disposition, and with that view to place the court, so far as possible,
where it may interpret the language used from the standpoint of the
testator at the time he employed it, still the rule is inflexible that sur-
rounding circumstances cannot be resorted to for the purpose of im-
porting into the will any intention which is not there expressed." Bin-
gel v. Volz, supra.
As will be seen by reference to the cases above mentioned, and also
to the cases of Decker v. Decker, 121 111. 341, 12 N. E. 750, and Huff-
man v. Young, 170 111. 290, 49 N. E. 570, this is not. a case where so
much of the description as is false may be stricken out, so as to leave
enough in the will, interpreted in the light of surrounding circum-
stances at the time it was made, to identify the premises devised. Wil-
liams v. Williams, supra. It was said in Bingel v. Volz, supra, as fol-
lows (page 225 of 142 111., page 16 of 31 N. E. [16 L. R. A. 321. 34
Am. St. Rep. 64]): "Doubtless if there were repugnant elements in
the description employed in the devise in question, and if the descrip-
tion, after rejecting a repugnant element, were complete in itself, so as
to accurately and sufficiently describe the land intended to be described,
that rule of construction might be adopted. But we are unable to see,
10S4 the "parol evidence" rule . (Ch. 7
and the ingenuity of counsel has been unable to point out, any way
in which that rule of construction can be applied, so as to work out the
result sought to be attained. * * * If it be admitted that there are
repugnant elements in this description, it is impossible to see what re-
pugnant element can be rejected, so as to leave a description which will
apply to the land which the appellant claims."
In the case at bar, if we reject the words "section 24," or the figures
"24," nothing remains to indicate in what section the land in question
lies. The correction of the description, by the insertion of "14" in
the place of "24," requires not only that the figures "24" should be
stricken out, but that the figures "14" should be inserted. As was said
in Bingel v. Volz, supra, this "involves more than construction. It
requires reformation, and in this state at least courts of equity have
persistently refused to entertain bills to reform wills."
For the reasons above stated, we are of the opinion that the decree
of the court below is erroneous; and accordingly it is^ reversed, and
the cause is remanded to the circuit court for further proceedings in
accordance with the views herein expressed.
Reversed and remanded. 67
In re BOECK'S WILL.
Appeal of BOECK.
(Supreme Court of Wisconsin, 1915. 160 Wis. 577, 152 N. W. 155, L. K. A.
1915E, 1008.)
William Boeck died testate October 13th, 1912. He had owned con-
tinuously, up to that time, for many years, South Half of North West
Quarter of Section 13, Township 18, Range 12 East in Waushara
County, Wisconsin, the east forty of which was his homestead. He
never owned any other land in said quarter section. The west forty
which he owned is the subject of this action. He was sixty-nine years
old at the date of the will. He was survived by eight children. All
were named as beneficiaries. There was no residuary clause in the will.
All the property, by specific mention, was distributed among the sur-
vivors except the forty acres involved in the action. To Herman Au-
gust Boeck he, in terms, gave the northeast quarter of the northwest
quarter of said section 13. Herman was not otherwise remembered
on anywhere near the basis of his brothers. The will was duly admit-
ted to probate in Waushara County and, in due course, the estate was
assigned. Thereby the southwest quarter of the northwest quarter of
said section 13 was dealt with as having been intended for Herman
August Boeck. The two daughters appealed to the circuit court, in-
sisting that the forty not mentioned in the will was intestate property.
07 For* a review of all the later cases in Illinois, see Stevenson v. Steven-
son, 285 ill. 1st;, m N. E..20L' (1918).
Sec. 2) AIDING CONSTRUCTION 1085
The circuit court, in due course, so held and gave judgment according-
ly and awarded the contestants $60.00 as attorney's fees to be paid
out of the estate. Judgment was so entered.
Herman August Boeck appealed.
Marshall, J. There are no two opinions as to what the testator
intended. He purposed recognizing his son Herman by giving him the
forty acres of land which was not otherwise disposed of by his will.
and to burden it with a legacy of one hundred and fifty dollars in favor
of his daughter Bertha. That he intended to deal with the land he
did not own, and thereby, practically, disinherit both son and daughter,
notwithstanding the careful remembrance of them and all other mem-
bers of his family, would be too absurd to be seriously thought of.
This was the view below ; but, — influenced by the observation in the
editor's note in 6 L. R. A. (N. S.) 977, to Lomax v. Lomax et al., 218
111. 629, 75 N. E. 1076, that, "if the will containing the devise * * *
contains a complete, accurate description of a tract of land not owned
by the testator, and no language whatever pointing in any wise to an
intention to devise another tract which he did own, the devise fails. — it
cannot be made to apply to a different parcel by extrinsic evidence;
but, if, anywhere in the will, there can be discovered words connecting
the devise * * * with a tract of land that belonged to the tes-
tator, or indicative of his intention by such devise to devise a tract
of land owned by him, courts will seize upon such words to make ef-
fectual in the testator's intended devise," and, further influenced
by expressions, found now and then in judicial writings and encyclo-
paedic codifications of decisions, such as this, now cited to us by coun-
sel for respondent: "Where the will is plain, simple and unambigu-
ous on its face, no evidence of the surrounding circumstances can be
admitted,"— the learned circuit judge supposed the judicial hands were
so tied to the rock of precedent that they could not be so loosened as to
do justice in the particular case.
This is a good illustration of the danger of taking, literally, mere ex-
pressions sometimes found in law writings, for a guide. That danger
is progressive directly as the volume of such writings increases and
perhaps, want of clearness of expression and tendency to follow prec-
edent instead of principle, increases.
In the literal sense, the second quotation above, taken from 13 En-
cyclopedia of Evidence, page 504, is, at least, very misleading and
likewise the first quotation. If either means that the language of a will
which is plain in its words cannot be changed in that respect by char-
acterizing circumstances, and the ambiguity solved by reading the in-
strument in the light of the entire situation with which the testator
dealt, it is wrong. Such a rule would make of law. in many cases, an
instrument for perpetrating wrongs instead of one for vindicating
rights. .
It is useless to try to harmonize the many expressions found in the
books in respect to the subject under discussion. There are some well
10S6 the "parol evidence" rule (Ch. 7
established principles which are of the highest dignity. So far as such
expressions do not accord therewith, they are wrong. The dominant
of all such principles is this : The intention of the testator, so far as
it can be discovered from his will, must be considered as expressed
therein. With that goes all the principles for judicial construction.
The basic one of such principles is that judicial construction begins
only when uncertainty of meaning arises. With that goes the explana-
tory principle that, uncertainty of meaning may arise as well by ap-
plication of the words of a will to the subject with which it deals as
from the words of the will themselves ; and the one that while extrinsic
evidence cannot be resorted to for the purpose of changing or ex-
plaining a will, it may be for the purpose of showing the circumstances
characterizing its making and, for the purpose of determining the
meaning, in fact, and intended to be expressed therein, it may be read
in the light of such circumstances. These principles for construction
have been so often stated in the decisions of this court that they must
be considered as an undoubted part of our unwritten law, regardless
of expressions here or elsewhere which might be viewed as not in har-
mony therewith.
Our attention is called to Sherwood v. Sherwood, 45 Wis. 357, 30
Am. Rep. 757, to support the idea that ambiguity in a will cannot be
created by reading it in the light of circumstances established by ex-
trinsic evidence, nor such ambiguity explained by reading it in the
light of like circumstances, but the contrary is the fact. There the
distinction is drawn between reformation and construction, the former
not being permissible as to a will and the latter just as legitimate as
in respect to any other written instrument. There, also, it was held that
"evidence of the intention of the testator, extrinsic to the will itself, is
not admissible for the purpose of explaining, construing or adding to
the terms of a will ;" but such intention must be spelled out from the
words of the will, read in the light of the circumstances surrounding
the testator when he made it. In cases where there are inconsistent
provisions in a will, evidence of such circumstances is always admis-
sible. That is in perfect harmony with what we have said.
In view of the foregoing, keeping in mind the fact that, where the
intention of the testator is plain, the court may and should go to the-
uttermost limits of construction authority to discover it expressed in the
language used to that end, there does not seem to be any difficulty in
reading the will in question as devising forty acres of land to Herman
August Boeck. That much is literally expressed, and there is no
difficulty in applying it to the particular forty, since that is the only
one the testator had after devising one to his son Samson.
That manner of reading a will to carry out a testator's intention, is so
grounded in principle that judicial authorities could only serve to il-
lustrate it. So far as any may be found, seemingly, out of harmony
with it, a close scrutiny will, in general, show that the seeming conflict
does not exist or was not intended. Such is the fact we think in regard
Sec. 2) AIDING CONSTRUCTION » 1087
to the language used in Lomax v. Lomax, which efficiently challenged
the attention of the trial court unfavorably to the conclusion we have
reached. That is very evident, since in each of the several cases decid-
ed before and after it, cited in the briefs of counsel for appellant, —
Decker v. Decker, 121 111. 341, 12 N. E. 750; Whitcomb v. Rodman,
156 111. 116, 40 N. E. 553, 28 L. R. A. 149, 47 Am. St. Rep. 181 ;
Felkel v. O'Brien, 231 111. 329, 83 N. E. 170; Collins v. Capps, 235 111.
560, 85 N. E. 934, 126 Am. St. Rep. 232, ambiguity was created and
explained by applying the language used to the circumstances charac-
terizing the making of the will, and it was construed by regarding
words in place which were there by necessary implication.
It may be that cases have been disposed of here, where either in the
decisions or discussions leading up thereto, it was not appreciated that
in the field for judicial construction and the circumstances under which
occasion may arise for such construction, rules are just as broad in
respect to wills as other written instruments. The principles have
been, perhaps, viewed more broadly and explained in greater detail in
recent years than formerly. All that makes for judicial efficiency in
execution of the purpose for which courts were created — to prevent
and redress wrongs.
The judgment is reversed, and the cause remanded with directions
to affirm the judgment of the county court. 88
es A number of the cases on this point are collected in the note to the prin-
cipal case in L. R. A. 1915C, 1009.
INDEX
[FIGURES BEFEB TO PAGE ON WHICH THE CASE OB NOTE BEGINS. IN WHICH THE
SUBJECT IS TREATED]
ACCIDENTS, nnjrk
Similar, received for what purposes, SOS. 599, 901. 903, 905, 907, 909.
ACCOUNT BOOKS, 571.
See Hearsay, Exceptions to the Rule.
ACTS.
Similar, received for what purpose. 860, 877, ^79.
ADMISSIONS, 4S2.
See Hearsay, Exceptions to the Rule.
AGE.
Proof by inspection, 926. 929.
AGENTS.
Admissions by. 520. 522. 523. 520. 530.
Witnesses as. competency, 162, 176.
ALMANACS, 90, 101.
ANCIENT DEEDS. 226.
ANIMALS.
I '.sposition of. 761.
Habits of, - -
ATTAINT.
Writ Of. 5.
ATTESTING WITNESSES, 216.
Admissions as a substitute for, 219.
Adverse party, document held I y, 221, 222. 223.
Ancient attested documents, 226.
Handwriting of attesting witness. 216. 227.
Impeachment of. 376.
Number of. required to be called. 229, 231.
Proof of documents by, 216, 219. 220.
Witness unavailable, 224.
IJEST EVIDENCE RULE, 937.
Ion as notice, 943.
Adverse party, document held by. 940. 945.
Admission as to contents of wrr - J4, 965.
Assessment for taxation. 9 ,v .
Attorney, fact of being. 967.
Collateral documents. 971.
Copies by mechanical processes, 950.
Copy of a copy, 9S1.
Copy, whether preferred to oral evidence. 3&
Cross-examination as to wr: 61.
Destruction, voluntary, 956. 958
Notices and duplicates, 941.
Notice to produce, 94-".
Original, when unavailable, 953, 954. 955, 960.
Profert of documents, 937.
Hint.Ev.— 69 (10S9)
1090 INDEX
[The figures refer to pages]
BEST EVIDENCE RULE— Continued,
Receipt, as evidence of payments, 970.
Records, public, 940.
Rule, origin of, 937.
Sales, 976.
Telegram, original, 951.
Tenancy, 968, 974.
Title, 979.
BODY,
Condition of, 714.
See Hearsay, Exceptions to the Rule,
BOUNDARIES,
Proof of, 651, 654.
BURDEN OF PROOF, 1.
Establishment of the issue, 34.
Certainty required, 36.
Charge of crime, 38, 40.
Burden in various issues:
Bona fide purchaser, 87.
Death, 45.
Foreign law, 87.
Negligence and contributory negligence, 58, 62, 63, 68.
Notice of unrecorded deed, 84.
Sanity and insanity, 69, 72, 75, 78, 79, 83.
Self-defense, 73.
Undue influence, 78.
Presumption, effect, 56, 63, 66.
Production of evidence to:
Contradict direct evidence, 16.
Make a prima facie case, 11, 20, 42, 43.
Negative a presumption, 15, 45.
Negative an exception, 46.
Negative contributory negligence, 22, 28.
CHARACTER,
Accused, good or bad character of. S17, 818, 820. S24.
Deceased in homicide, 830, 834, 836.
Negligence, character as evidence, 842, 843.
Parties to civil actions, character of, 831, 839, 840.
Presumpiions as to, 828.
Proof of, 402, 404, 410, 764.
Rape, character of prosecutrix, 833.
Traits involved, 823, 827.
Witness, character of, see Witnesses.
CHILDREN,
See Witnesses. "
CIRCUMSTANTIAL EVIDENCE, 817.
COMPETENCY,
See Witnesses.
CONFESSIONS, 533.
See Hearsay, Exceptions to the Rule.
CONSTRUCTION OF WRITINGS, 1042.
See Parol Evidence Rule.
CONVICTION OF CRIMINAL OFFENSES,
Dl credit ot witnesses by, 3G3, 401.
Effect on competency, 141, 143, 144, 145, 146, 148.
(foreign conviction, effect, 146, 148.
I'n ni< mi, effect, 142.
Proof of conviction, 142.
INDEX 1091
[The figures refer to pages]
COPY,
See Best Evidence Rule.
CORONER'S INQUEST, 446, 447, 636.
CORROBORATION OF WITNESSES, 412.
See Witnesses.
COURT AND JURY, 1. .
See Burden of Proof ; Evidence, Admission and Exclusion of.
CRIMES,
Burden of proof. 38, 40, 73.
l'roof of other, for what purposes, 844, 845, 847, 849, So3, 85o, 857, 858.
Witnesses, discredit of, see Witnesses.
CROSS-EXAMINATION, 343.
See Witnesses.
CUSTOM,
See Parol Evidence Rule.
DEATH,
See Presumptions.
DEEDS,
Ancient, 226.
Copy of, see Best Evidence Rule.
Execution, proof of, see Attesting Witnesses.
Recorded, 632.
DEGREES OF SECONDARY EVIDENCE,
See Best Evidence Rule.
DEMURRER TO EVIDENCE,
Admission by, 6, 12. #
DEPOSITIONS, 445.
See Hearsay, Exception to the Rule.
DISPOSITIONS,
See Animals.
DYING DECLARATIONS, 464.
See Hearsay, Exceptions to the Rule.
ENTRIES IN REGULAR COURSE OF BUSINESS, 571.
See Hearsay, Exceptions to the Rule.
EVIDENCE,
Admission and exclusion of, 10S.
Confessions, determination by the judge, 120, 537.
Competency of witnesses, 111, 112, 118, 120.
Conditional relevancy, 10S, 110.
Documents, 116.
Documents, loss of, 114.
Dying declarations, 464.
Hearsay, under statutes, 122.
Objections, to evidence,
General or specific, 306, 308.
Made, when, 304.
Offers of evidence, 311, 313, 314.
Order of introduction, 301.
EXAMINATION OF WITNESSES, 316.
See Witnesses.
EXCEPTIONS TO HEARSAY RULE, 443.
See Hearsay, Exceptions to the Rule.
EXPERT WITNESSES, 777.
See Opinion.
1002 INDEX
[The figures refer. to pages]
FACTS,
Judicially noticed, see Judicial Notice.
Presumptions as to, see Presumptions.
Questions for judge, see Evidence, Admission and exclusion of.
FINK.
See Jury.
FIRES,
Set out by engines, SS4, SS6, SS9, 891, 894, S9G.
FOREIGN LAW,
Judicial notice of, 87, 102, 104.
Presumptions as to, 87, 89.
FORGERY,
Other utterings, etc., 844.
FORMER TRIAL,
Testimony at, 443.
See Hearsay, Exceptions to the Rule.
HABIT OR PRACTICE,
Evidence of what facts, S63, 864, S66, S68, SG9, S70, 871, S73, S75, 881.
HANDWRITING, 796.
See Opinion.
HEARSAY RULE, 427-442
HEARSAY. KXCEPTIONS TO THE RULE,
Admissions, 482.
Agents, admission by, 520, 522, 523, 526, 530.
Assignors, admissions by, 514, 515.
Beneficiaries, admissions by, 499, 507.
Compromise, oiler of as, 497.
Codefendants, admissions by, 511.
Conduct implying, 490, 494, 496.
Conspirators, admissions by, 528.
Former owner, admissions by, 515, 518.
Husband, admission by against wife, 509.
Joint obligor, admissions by, 503.
Legatee, admissions by, 505.
Member of corporation, 504.
Nomina] party, 500.
Pleadings, as, 4S4, 4S6, 489.
Privilege, claim of, as, 237, 241, 242, 2S7.
Silence as an, 491, 4U:'>.
Third person, admission by, 499, 527.
Confessions, 533.
Burden of proof to admit, 537.
Contradiction of, 550.
j';i< ts discovered from, 535.
Fraud or trick to obtain, 545.
Plea of guilty, as, 552.
Preliminary questions for Judge, 120, 537, 543.
Promises or threats, 535, 536, 539, 510.
Sweat box methods, 517, 549.
Testimony before coroner, as, 542.
Torture to obtain, 533.
\ lolence Inducing, 54 I.
Dying declarations, 464.
Adm] Ibility in ch U cases, 465, 171.
Admissibility in criminal cases, 473,474.
Belief in Impending death, 166, 468.
Contradictory statements, 480.
Preliminary question for Judge, 164.
Subject-matter, how limited, 171;, 479.
INDEX 1093
[The figures refer to pages]
HEARSAY, EXCEPTIONS TO THE RULE— Continued,
Entries in regular course of business, 571.
Account books, evidence of what facts, 594.
Account books kept by clerk, 572.
Account books kept by party, 572, 573, 5S3, 586, 587, 596.
Account books kept by third person, 596, 598.
Bookkeeper as witness, 575, 578.
Bookkeeper absent or dead, 572, 579, 5S1.
Circumstantial evidence to support book charges. 5S7, 590, 591.
Entries from reports of others, 605, 607, 610, 612, 616.
Entries other than book charges, 579.
Fair account book, 584, 593.
Money items, evidence of, 5S6.
Oath, supplementary, 583.
Original entries, 603, 604.
Statute of James I, 571.
Official statements, 617.
Census reports, 627.
Consular certificate, 621.
Coroner's inquest, 636.
Court docket, 624.
Deed register, 632.
Foreign official report, 639.
Marriage and birth register, 617, 622, 630.
Prison books, 619, 620.
Sheriff's return, 634.
Ship captain's report, 623.
Pedigree, statements of, 661.
Affidavits as pedigree statements, 672.
Age, 670.
Death, fact of, 667.
Facts, what included, 670.
Friends and associates, competency, 664.
Husband or wife, competency, 661.
Illegitimate relations. 675.
Relationship of declarant, 678.
Reported testimony, 443.
Absence, death, or insanity of witnesses, 443, 444, 456.
Depositions in general, 445.
Depositions taken by coroner, 446. 447.
Deposition taken by magistrate, 451, 453.
Parties, identity of, 443, 445, 448, 450.
Proof of former testimony, 45S, 461.
Reputation, 64L
Character, proved by, 404, 656, 658.
Custom, proof of, by, 644.
Death, 660.
Lis mota, doctrine of, 648.
Marriage, 659.
Notice, to prove, 65S.
Particular facts, 649.
Private boundaries, 651, 654.
Private rights, 641, 646.
Public matter, 650.
Spontaneous statements, 683.
Accidents, statements after, 72S, 732, 746, 749.
Acts, statements accompanying. 730, 733. 737, 739.
Feelings, statements of, 6S3, 741. 743, 747.
Injury, cause of, 725.
Intention, 683, 6S5, 6S8, 691, 094, 695, 697, 701.
Mental condition, 709.
Motive, 6S6.
Pain, complaints of, 714, 71S, 721, 723.
1094 INDEX
[The figures refer to pages]
HEARSAY, EXCEPTIONS TO THE RULE— Continued,
Physical condition, 715, 716.
Physicians, statements to, 726.
Possession, statements while in. 729.
Threats of suicide, etc., 692. 706, 711.
Statements against interest. 577.
Confessions of crime, 568.
Acknowledgment of payment, 557, 558.
Credits entered, 562.
Remote liability, 566.
Title, disclaimer of, 560, 561, 563.
INNOCENCE,
Presumption of, 40.
INSANITY,
See Burden of Proof.
INSPECTION,
See Real Evidence.
INTENTION.
Construction, as affecting, see Parol Evidence Rule.
Proof of. see Spontaneous Statements.
Relevancy, 6S5.
JUDGE,
Questions for, see Evidence, Admission and exclusion of.
JUDICIAL NOTICE, 89.
Almanacs, time, etc., 00. 92, 99.
Articles, ordinary qualities of, S9, 97.
Custom, 92.
Geography, 93.
Governments, foreign, 101, 105.
History, 93.
Language, foreign, 90.
Law, foreign, S7, 102, 104.
Municipal ordinance, 103.
.Necessaries for infants, 91.
Process of manufacture, 95.
JURORS,
Acting on general knowledge, 10.
Acting on private information, 3, 7.
Misconduct of, 3, 7.
Witnesses in the cause, 3, 207.
"Witnesses to impeach or support verdict, 204, 205, 207, 209, 210.
LAW.
Judicial notice of. 87, 102, 104, 105.
Presumptions as to, 87, 89.
Proof, burden of, as to foreign, 87.
LEGITIMACY,
Presumption of, 56.
LIFE,
Presumption, as to, 51, 52.
I is .MOTA DOCTRINE, 'MS.
T DOCUMENTS,
See Best Evidence Rule.
MALICIOUS PROSEI I l [ON,
Burden <>r proof, L6, l'J.
MARRIAGE,
Bee Reputation.
1095
[The figures refer to pages]
NEGLIGENCE, „„ OB
Burden of proof, 22, 23, 58, 62, 03, GS.
NEW TRIAL ON WEIGHT OF EVIDENCE, 4, 6, 7, 10, 11, 32,
NONSUIT,
Motion for, 13, 20.
OATH,
Nature of, 125.
OPINION, 752.
Conclusions of witnesses, 75d.
Expert opinion, 777.
Engineering matters, 7SL
Finger prints, 816.
Handwriting, 790, 799, S06.
Insurance matters, 779. •
Literary matters, S13.
Medical matters, 777.
Navigation, 7S4.
Personal observation, 790.
Safety appliances, 785.
Speculation, 792.
Testimony of others, 7S0, 795.
Typewriting, 814.
Writing, comparison, S00, S02, 80a
Lay opinion,
Animals, disposition of, 761.
Belief of another, 771.
Character, 764.
Competency of an employe, 764.
Condition of roads, 750.
Credibility of witnesses, 410.
Danger of a place, 757.
Handwriting, 805.
Identity, 755.
Intoxication, 770.
Medical matters. 774, 777.
Sanity, 772, 775.
Speed, 700.
Value, 758.
Itecol lection distinguished from, 7o2.
PARDON,
See Witnesses.
PAROL EVIDENCE RULE, 987.
Construction and application of writings, 1042.
Circumstances to prove meaning, 1064, 10 to, lObU.
Context to prove meaning, 1071.
Customs to vary meanings, 10o0, 1051.
Erroneous descriptions, 1082, 10S4.
Habit or practice to show meaning ,1078.
Identification of subject matter, 1042 1043 104 7, 10^3.
Negotiation to prove meaning, 105o. lOo ^ 1000.
Wills instructions to show meaning, 1007.
Contradiction. of written tasljuments 987.
Collateral contracts, 1034. 103o, 10.v\ 1039.
Conditions, additional, 1003, 1018, 1022.
Consideration, varying, 1013.
Custom, to add incidents, 1024, 10-0.
Fraud, to prove, 1009.
Incomplete instruments, 1029^ 1030. 103L
Inoperative instruments, 1017, 1020.
Legal effect, varying, 1032.
1096 INDEX
[The figures refer to pages]
PAROL EVIDENCE RULE— Continued,
Modification, subsequent, 992.
Mortgages, to show deeds to be. 1004, 1008.
Omitted provisions, 9S7, 9SS, 9S9, 993.
Receipt, contradictions of, 1014.
Usury, proof of, 1011.
Wills, varying, 995, 1000.
PARTIES,
Competency, see Witnesses.
PEDIGREE,
Statement of, 661.
See Hearsay, Exceptions to the Rule.
PHYSICAL CONDITION, 714.
See Spontaneous Statements.
PHYSICAL OBJECTS, 917.
Age determined by inspection, 926, 929.
Color by inspection, 917.
Injuries, exhibition of, 926, 935.
Resemblance, as evidence of relationship, 931, 934.
View by jury, effect of, 919, 922.
PLEADINGS AS ADMISSIONS, 484, 48G, 4S9.
PRELIMINARY QUESTIONS, 108.
See Evidence, Admission and exclusion of.
PRESUMPTION,
Character, whether good, 828.
Consideration, 56.
Innocence, 40.
Law, foreign, 87.
Life, death, etc., 45, 48, 49, 51, 52.
Negligence, 63, 68.
Sanity, 69, 75, 79, S3.
PRIVILEGE,
See Witnesses.
PUBLIC DOCUMENTS,
See Official Statements.
PUBLIC INTEREST,
See Keputation.
RAPE,
Complaints of, 422.
REAL EVIDENCE,
See Physical Objects.
REASONABLE DOUBT, 40, 41.
RECOLLECTION,
Refreshing, see Witnesses.
REPORTED TESTIMONY, 443.
See Hearsay, Exceptions to the Rule.
REPUTATION, 53.
See Hearsay, Exceptions to the Rule.
RES GESTAE, 683.
SPONTANEOUS STATEMENTS, 683.
See Hearsay, Exceptions to the Rule.
STATEMENTS AGAINST INTEREST, 557.
See Hearsay, Exceptions to the Rule.
SI K\ I\ ORSHIP,
Burden of proof, 53.
INDEX 1097
[The figures refer to pages]
VALUE,
Sales of other property, 911, 913, 915.
See Opinion.
VERDICT,
Against evidence, 10. 32.
Directed, when, 11, 13, 15, 1C, 19, 20, 29, 32.
Special, effect, 1, 2.
VIEW BY JURY, 919, 922.
VOIR DIRE, 150, 31G.
WILLS,
Borden of proof, 75, 78, 83.
Construction, 1043, 1047, 1064, 10G7, 1071, 1075. 107S, 10S0, 10S2, 10S4.
Contradiction, 995, 1000.
Declarations of testator, 694, 701.
Undue influence, 78, 82.
WITNESSES, 125
Competency,
Atheists, pagans, etc., 125, 129, 131, 134.
Attorney in the cause, 276.
Broker or agent of party, 162, 176.
Children, 129, 134, 135, 137.
Creditor of party or estate, 165.
Grand jurors, 213.
Husband or wife of a party, 1S4, 185, 187, 189, 192, 195, 196, 202.
Infamous persons, 141, 143, 144, 145, 146.
Informer or prosecutor, 150, 151.
Insane persons, 138.
Interest in the suit, 158, 159, 160, 161, 162, 164.
Intoxicated person, 137.
Jurors, 3, 204, 205, 207, 209, 210.
Legatees of estate, 166. .
Member of corporation or firm, 164, 171, ISO.
Pardon, 146.
Parties to the action, 152, 153, 154, 155, 156, 157, 173, 181.
Parties to the contract, 173, 175, 176.
Relationship to a party, 159.
Relationship, marital, 1S4.
Remainderman, 166.
Statutes, qualifying, 169, 170.
Survivor of transaction with deceased, 1S1.
Widows, 168, 197, 200, 201.
Contradiction and impeachment, 374.
Character to discredit, 402, 407, 408.
Character, proof of, 402, 404. 410, 764.
Contradictory statements, 377, 381, 3S2, 389.
Contradiction, foundation for, 390, 391, 393.
Conviction of criminal offense, 401.
Criminal acts, 395, 396.
Cross-examination to, 366, 372.
Facts, contradiction as to, 376, 397, 398, 399.
Witnesses, what subjects to impeachment, 374, 376.
Corroboration and support, 412.
Character to support, 424.
Contradiction as basis for, 412, 415.
Conviction as basis for, 418.
Contradictory statements as basis for, 415.
Cross-examination as basis for, 414.
Similar statements to support, 420, 422, 425.
Cross-examination, 343.
Bias, to show, 368.
1098 INDEX
[The figures refer to pages]
WITNESSES— Continued,
Contents of a writing. 3G1.
Conviction, to show. 363.
Criminal acts, to show, 3GG, 372.
Cross-examination prevented, M45, 34S.
Defendant, cross-examination of, 360, 370, 371.
Right of cross-examination, 344, 349.
Scope of, 350, 351. 353, 354, 356, 35S.
Waiver of. 343, 345.
Examination, 316.
Leading questions, 317, 318, 3*22, 324.
Memoranda to aid or supply recollection, 325, 326, 327, 328, 329, 330,
332, 335, 336, 33S, 340.
Objections, general or specific, 306, 30S.
Objections, time to make, 301, 303, 304, 306.
Questions, when necessary, 310.
Voir dire examination, 150, 316.
Privilege against self-incrimination, 232.
Admission by claim or exercise of privilege, 237, 241, 242.
Civil liabilities, 233, 246.
Claim of, how determined, 264, 266, 270.
Disgrace, 250.
Erroneous ruling, effect, 259.
Extent of privilege, 245.
Inspection of defendant, 235, 237.
Immunity statutes, effect, 263.
Pardon, effect, 262.
Penal liability, 234, 24S.
Production of documents, 233.
Silence, privilege of, 237.
Waiver of privilege, 239, 242, 251, 256, 257, 259.
Privileged relations, 273.
Admission by claim, 2S7.
Agents, communications to, 275.
Attorneys, 273, 274, 277, 279, 281, 296.
Compulsory disclosure by party, 2S6.
Erroneous ruling, effect, 293.
Husband and wife, 197, 199, 200, 201, 202, 204.
Illegal purpose, 283.
Physician and patient, 289, 291, 294.
Waiver by client or patient, 292, 299.
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