ill 
 
 inmiw 
 
 )UviiiUnUi]i\\i\ 
 
 !M?J!i!)f 
 
 Hfnnui
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 -i>- 
 
 J>-
 
 WOODS 
 
 Practice Evidence, 
 
 I'^or Ready Use in the Trial of Causes. 
 
 By H. G. wood, 
 
 AUTHOR OF 
 
 "FIRE INSURANCE," "LANDLORD AND TENANT," 
 "STATUTE OF FRAUDS," Etc., Etc. 
 
 1886: 
 BANKS & BROTHERS, PUBLISHERS, 
 473 AND 475 BROADWAY, 144 NASSAU STREET, 
 
 ALBANY. NEW YORK.
 
 T 
 
 Entered according to Act of Congress, in tlie year one thousand eight hundred 
 
 and eighty-six, 
 
 BY BANKS & BROTHERS, 
 
 In the office of the Librarian of Congress, at Washington. 
 
 Chas. Van Benthuysen & Sons, 
 
 Printers, Electrotypers and Binders, 
 
 Albany, N. Y.
 
 PREFACE. 
 
 This work, upon which I have been engaged at odd inter- 
 vals for the htst tight ycai-s, is intentled lor practical use in 
 the trial ofeauseis — a sort of "iiundy'' Intok i'or reference in 
 the nuiltifarious (juestions that arise in the trial of causes, aa 
 to the admissibility of certain cl:us»eij of evidence and to the 
 s<'ttlenient of which the elementary rules ilo not always alloid 
 a ix'ady solution. As far as practicable this work is intended 
 to remedy the inconvenience ivsulting from this condition. 
 The work is not intended as an elementary treat ix', nor is it 
 u niwre tligot, but may be ki'hI to be intermediate bi'tweeii 
 the two. It gives the gi.st of the leading eases, whose doc- 
 trine i> well aiul tirmly e>tal»lished both as to the rules and 
 the exceptions theiet»j, and 1 believe will be found to Ikj 
 reliable. Thero is no field of the law in which the genend 
 rules are more Hrndy e>tablishe«l llian in tli;il relating to the 
 law of evidence ; but at the sim*' time, the r.injt(it,n.s to 
 the>e rules are .so nunnnHis that there is no d«paitm«nt of 
 the law in which nioif dillieidty is ex[)erien« td in ascertain- 
 ing where the rules apply than in thi>. I have endeavored 
 in a large measure to overcome thi> dillieidty, and have 
 tlr.iwn largely from the e;L>»e.s and the text-b(»oks— especially 
 the English text-l>ook.s — to this end. Of course 1 have not 
 been able to cover or meet every possible «jue,stion, but have 
 gone as far its the best cI.lss of ca.ses (Kngli.sh and Am« lican) 
 warrant, in solving them. The work covers a lield which 
 is not, except to a limited extent, covered by the element- 
 ary or other text-books, and I tru«-t will be found useful as 
 a guide, and as an authority, in the trial of causes in which 
 these questions arise. The index is very full, and will bo 
 found to be a " A'ey " to the points covered. 
 
 New York, MarcJi 22, 1886. 
 
 740176
 
 TABLE OF CONTENTS. 
 
 CUAriKR I. 
 
 BEST AND SECONDARY EVIDENDE. 
 
 PAGE. 
 
 Sic. 1. Primary Evidence, what is 1 
 
 2. Rule as to merely Collateral Mutters 4 
 
 3. Rule ns to Immovables, etc ' 
 
 4. Appliiation of the Rule ^ 
 
 6. Admissions of a Party dispense with the Rule, wh.n 10 
 
 6. Copies not a<lmissil)le. unless H 
 
 7. Secomlary Kvidenre, what is; a<lmi8sible wheTi 12 
 
 8 Ix>s» of PaiMT, hi»w established 1" 
 
 1 ft 
 9. Sean-h. .SufHeiency of. 
 
 10. When pajvr is in Po.'wssion^f the Adverse Party 23 
 
 11 . When Notiie to Produce, is unnecessary 26 
 
 12. Effect of Notice to Pro«luce Pajiers 28 
 
 13. How the Content** of Writinp* may be i)rove»l 31 
 
 CIIAITKK II. 
 PAROL EVIDENCE, RILES RELATING TO. 
 
 Skc. 14. General Rule ^^ 
 
 15. Latent Ambiguities, what are, rule anU^ 37 
 
 16. Rule when Ambijfuity is raised by Extrinsic Pi-oof 46 
 
 17. Declarations of Testator an to his Intention to explain Am- 
 
 bi^'uity ailmissible, when • ^° 
 
 18 Where Evidence of the Situation of the Pr(.i)erty, etc., is 
 
 49 
 admissible 
 
 19. Rule wht're Ambifjuity is Patent ••••• ^^ 
 
 20. Rule where Ambig-uity i-elates to Application of the Writing 
 
 to the Subject-matter "* 
 
 21. General Rules as to Patent Ambiguities 52 
 
 22. Parol Evidence to explain Writings • ^3 
 
 23. Rule a.s to In.iependent Contracts where the Writing is evi- 
 
 dently incomplete 
 
 24. Receipts ^® 
 
 25. Rule as to Admission of Parol Evidence relating to Sur- 
 
 72 
 rounding CircumBtAncee
 
 ^ TABLE OF CONTENTS. 
 
 PAGE. 
 
 Sec. 26. Parol Evidence to prove Collateral Matters 74 
 
 " 27. To show Fraud, Illegality, Duress, etc ^J 
 
 28. Failure of Consideration 
 
 29. Mistake in Instrument •••• •••••• 
 
 30. To show a Waiver, Alteration, or a Discharge of the Con- 
 
 tract 
 
 31. Not admissible to show Warranty " 
 
 32. To show that Writing, apparently absolute, is not 95 
 
 33. When Independent Contract is entered into as an Induce- 
 
 ment to the Execution of the Principal Contract 99 
 
 34. Several Writings may be looked at to determine the Real 
 
 Contract and Intention of the Parties 101 
 
 35. Judicial Records 
 
 107 
 
 36. Assignments 
 
 37. Bills of Lading ^^^ 
 
 38. Bills of Sale ^^^ 
 
 39. Leases • ^^'^ 
 
 40. Parol Evidence of Usage, admissible when 124 
 
 41. Qualities of a binding Usage 126 
 
 42. Need not necessarily be General 133 
 
 43. Must be Established by Instance of its Application 136 
 
 44. General Usage, how Established 138 
 
 45. Illustrations of the Application of the Rules 140 
 
 46. Mere Conflict of Evidence as to, does not Defeat 142 
 
 47. Effect of Local Usage 144 
 
 48. What Usages are valid. Illustrations 151 
 
 49. Usage as a Means of ascertaining the Meaning of Words 
 
 and Phrases 155 
 
 50. Rule when Words have a well-defined Meaning 160 
 
 51. Usage may add Incidents to a Contract. Illustrations 163 
 
 52. Rule when Ambiguity is Created by Parol Proof 167 
 
 CHAPTER III. 
 
 PRESUMPTIONS. 
 
 Sec. 53. Kinds of 169 
 
 54. Conclusive. What are 170 
 
 55. Estoppels as Conclusive Presumptions 173 
 
 56. Upon Whom Binding 173 
 
 57. Estoppel against Estoppel, effect of. How made available. 174 
 
 58. Estoppels in pais. Equitable Estoppel 175 
 
 59. Disputable Presumptions 177 
 
 60. Presumption from Possession of Lands 177 
 
 61. Presumptions as to Title to Personal Property from Pre- 
 
 sumption 179 
 
 62. As to Continuance of Facts 180 
 
 63. Presumption of Death may be Raised by lapse of less than 
 
 Seven Years, when 184 
 
 64. Presumption as to Survivorship 186
 
 TABLE OF CONTENTS. Vll 
 
 PAGE. 
 
 8bc. 65. Presumption as to Ships not Heaiti from 189 
 
 66. Pi-et*umi>tion as to Accounts 190 
 
 67. As to Agency ^^^ 
 
 68. As to Carriers. Negligence 19- 
 
 69. As to Character 19^ 
 
 70. As to Fraud 194 
 
 71. As to Damages 194 
 
 72. As to Mentity 195 
 
 73. As to Abandonment l-'"'' 
 
 74. Pn'sumption as to a Grunt l-'^ 
 
 75. Of a Conveyance 1 • " 
 
 76. From Omcial A.t^ 202 
 
 77. As to Jiin.>*<liction of Courts 205 
 
 78. Regularity of Api>ointment of Officers 206 
 
 79. As to OfH.iul Act.s 212 
 
 80. As to Pavni.-nt.s 213 
 
 ,^. ', '1'>0 
 
 81. As to Title --" 
 
 82. Miscellaneous Pivsumptions --- 
 
 CHAPTKK IV. 
 
 m:AK>AY KVIIiKNCE. 
 
 Sbo. 83. General Rule 24») 
 
 84. What is Hearsay 248 
 
 85. Exceptions to the Uule 250 
 
 ( IIAITKK V. 
 
 HEARSAY TO I'ROVE CENKUAL OR PURLK' RIGHTS. 
 
 8bc, 86. A<lmissi»ilo to pn>ve Pvihlic Rights 252 
 
 87. Meaning of Terms " Public" and •• General " "^'^ 
 
 88. When Indei»ondent Proof is not necessary- 
 
 89. Api>lication of the Exception 
 
 90. Instances in which su<h Evitience has Ix'en rejected 
 
 ClIAiTKK VI. 
 HEAR.^AY TO PROVE PEDIGRKK AM) RELATIONSHIP. 
 
 255 
 2.'>6 
 2G0 
 
 8bo. 91. Pedigree, How may Im; Pi-oved 265 
 
 92. Evidence should come from Undoubted Source 266 
 
 93. Rule in this Countr>- 267 
 
 94. A<lmissible to Prove Marriage, etc 268 
 
 95. Old r)o«-uments. Inscriptions, etc.. Admissible to Establish.. 269 
 
 96. Entries in Family Bibles, etc 271 
 
 97. Declarations of Deceased Persons 273 
 
 98 Hearsav of what Persons Admis-sible in Questions of Pedi- 
 
 gr^:. 275
 
 VIU 
 
 Seo. 
 
 TABLE OF CONTENTS. 
 
 CHAPTER VII. 
 
 HEKESAY.— ANCIENT POSSESSIONS. ^^^^ 
 99. Hearsay Admissible to prove, when 277 
 
 100. Heresay not Admissible to prove Private Title 287 
 
 101. Perambulations 291 
 
 102. Old Documents 291 
 
 103. Manorial Documents 292 
 
 104. Maps 293 
 
 105. Verdicts, etc 295 
 
 106. Judgments, Decrees and Orders 297 
 
 107. Grounds upon which these Rules are founded 298 
 
 108. Position of Parties presumed to be as stated in Ancient 
 
 Documents • 301 
 
 109. Proof of Modem Exercise of Right 302 
 
 CHAPTER VIII. 
 
 HEARSAY TO ESTABLISH PRIVATE BOUNDARIES. 
 
 Sec. 110. Admissible, when 305 
 
 111. Declarations of Deceased Surveyors 307 
 
 112. Of Persons shown to have been in a Situation to Know . . . 310 
 
 113. When Hearsay is not Admissible 312 
 
 114. Declarations of Owners 315 
 
 CHAPTER IX. 
 
 DYING DECLARATIONS. 
 
 Sec. 115. "When Admissible 321 
 
 116. To what Matters Admissible 325 
 
 117. Declarations must be Complete 325- 
 
 118. Considerations which should Control as to Admission of. . . 326 
 
 CHAPTER X. 
 
 DECLARATIONS BY DECEASED PERSONS AGAINST INTEREST. 
 Sec. 119. General Rule 328 
 
 120. Kinds of Declarations Admissible '. 329 
 
 121. Conditions Precedent to the Admission of 329 
 
 122. Entries in Private Books 332 
 
 123. Exceptions to the Rule 335 
 
 124. Illustration of the Application of the Exception 336 
 
 125. Person making, must be Dead 338 
 
 126. May be used as Evidence of Collateral and Independent 
 
 Matters, when 342 
 
 127. Similarity of Rule as to Entries made by Person in Office, 
 
 and by Deceased Person 345 
 
 128. Where Entries are made by Agents in due Course of Busi- 
 
 iiess 34^
 
 TABLE OF CONTENTS. IX 
 
 ClIAi'Ti:U XI. 
 
 MEMORANDA. — WHEN MAV BE EVIDENCE. ^^^^ 
 
 8bc. 129. How may be used a.s Evidence ;^'»7 
 
 13<). Should be made by Witness 3G6 
 
 131. May be iise<l. although its Contents would not be Admis- 
 
 sible -ifi? 
 
 132. Witness need not have Re«olleetion Independent of. 3lj8 
 
 133. When the OpiK>site I'uity is Entitled to see the Memo- 
 
 randum 3'^ 
 
 VM. Memorandum it.self only Adtnissibh-, when 371 
 
 13.'i .M.-in<'iandum in whii-h Party ran have no luten-st to 
 
 Falsify '. 372 
 
 130. Minutes of Testimony of Derea.'se*! Witnesses 372 
 
 cii vi'i i:k Xll. 
 
 BOOK.S OF COKI'OK.VriON. 
 
 8bc. 137. Entries in Bank lltM.ks. when admissible 374 
 
 138 B<H>ks of ("orponitiofi" jr<M)ern!lv. Knles h» to Admission 
 
 of ' 379 
 
 CIIAlTKli Mil. 
 
 SHOP nOOK.><. ACCOINT BOOKS, ETC. 
 
 Sue. 139. Admissibility of, p'lierally 390 
 
 HO. Knle wh.Mi U'tter Kvi.lenee exists 392 
 
 141. Rule ill Ditr.-ivnt SUites 393 
 
 142. Efferl of Alterations, ete. ; of what Thing's they may l>o 
 
 UHe«l as Eviclence 398 
 
 143 ( >f what Thinp* they aiv not Evidence 398 
 
 144. What an* J. roiHT Subjects of Iknik Char^'e 4(M) 
 
 145. Time of makinjf Entries, etc -l^^ 
 
 ("IlAl^TKn XIV. 
 KKs t;E.sT.i:. 
 
 8bc. 146. ^hat is General Rule 413 
 
 147. Boilily Suffering or Mentjil Anguish 416 
 
 148. Statements made by Applicant for Lift- Insurance 420 
 
 149. Stat«'meiits mad<' b.-fon« the Principal Fju;t 421 
 
 150. Illustrations of the Rules relating to 423 
 
 151. How far Acts and Sayings of Parties to a Written Contract 
 
 at the Time of Making it, are Admis.sible 436 
 
 152. Declarations as to Po.-^.'WR.'iion of Lands 444 
 
 153. Spontaneity of the Acts or Declarations, what is 4r)2 
 
 l.'>4. Actj*, etc., l>efore and after the Principal Facta 4t;0 
 
 155. Illu.stration of the Rule relating to res gesstOB • 470 
 
 156. Declarations of Conspirators, when Eviilence against Co- 
 
 spirators 4<0
 
 TABLE OF CONTENTS. 
 
 PAGE. 
 
 Sec 157 Statements of Conspirators, when not part of the res ^esto. 479 
 158. Writings in possession of Conspirators, before or after Ap- 
 prehension 
 
 CHAPTER XV. 
 
 ADMISSIONS. 
 Sec. 159. Admissions of Parties to Suit 481 
 
 160. The whole admission must be taken 503 
 
 161. Weight to be given to Admissions 512 
 
 162. When and How a Party may discredit his Admissions .... 514 
 
 163. Parties to Negotiable Paper 516 
 
 164. Admissions by an Indorser 521 
 
 165. Admissions by former Owner or Holder 522 
 
 166. Admissions by Persons acting together Illegally 526 
 
 167. Admissions by Co-plaintitfs, Co-defendants, etc 527 
 
 168. Admissions by one of two or more Persons united in Interest, 528 
 
 169. Admissions by Husband and Wife 529 
 
 170. Admissions by Attorneys 534 
 
 171. Declarations and Admissions of Agents 536 
 
 172. Knowledge of, or Notice to, Agent affects Principal, when, 555 
 
 173. Admissions of Guardians and Nominal Parties 563 
 
 174. Admissions by Privies ^66 
 
 175. Rule applicable in Case of Personalty 569 
 
 176. Principal and Surety ^'^3 
 
 177. Offers of Comiwomise ^ '" 
 
 178. How Admissions should be weighed 5''8 
 
 179. Admissions implied fi-om Conduct 580 
 
 -180. Admissions from Acquiescence 584 
 
 181. Conclusive Admissions 589 
 
 182. Effect of Plea of General Issue, etc 592 
 
 183. Omitting to Traverse 598 
 
 184. New Assignment 599 
 
 185. Admissions acted upon by others • 601 
 
 186. Admissions under Oath, in Deeds, etc 608 
 
 187. Admissions by Corporate Officers 609 
 
 CHAPTER XVI. 
 
 JUDICIAL EVIDENCE. 
 
 Sec. 188. Of what Matters Courts will take Judicial Notice 614 
 
 189. Public Statutes 614 
 
 190. Private Statutes 618 
 
 191. Instances of Matters of which Courts will not take Judicial 
 
 Notice 619 
 
 192. Matters of Experience 628 
 
 193. Statutes and Common Law of other States 629 
 
 194. As to Judicial Records 633
 
 TABLE OF CONTENTS. XI 
 
 PAGE. 
 
 8bc. 195. Miscellaneous Mattei-s Noticed without Proof «34 
 
 1%. Rule where Statutes are Relied on as Ground of Action or 
 
 Defense ^^"^ 
 
 CHAl^TER XVII. 
 
 BURDEN OF PROOF. 
 
 8kc. 197. General Objects of Evidence 643 
 
 198. Frauds ^;^^ 
 
 199. Exceptions to Rule ^^^ 
 
 200. Pi-esumi>ti()ii of Innocence *5^^ 
 
 201. Burden in Case of Lost Notes 6^8 
 
 202. Who is to Bi-e'm "^.^^ 
 
 203. Who Be^ns in Action to Recover Laiuls 6*54 
 
 204. Right to Reply ^^"^ 
 
 CUMBER xviii. 
 
 I'UIMA FACIE EVIDENCE. 
 
 8»C. 205. General Rule as to. Illustrations 6t)5 
 
 206. As to Receipt.", etc 670 
 
 CllAl'lKK XIX. 
 
 DOCUMENTAUV KVIDENCE. 
 
 8bo. 207. Cla.ssesof -;'^ 
 
 208. Legislative Journals ^jj* 
 
 209. Foreign Statutes 6/7 
 
 210. Private Statutes 680 
 
 211. Common Ljiw of a State or Country 680 
 
 212. Chuirh Registei-s, etc 681 
 
 213. Ship Regi.-^ter8 ^^;^ 
 
 214. Patents for Inventions 6h J 
 
 215. Patents for Lands 689 
 
 216. Copies ••••• ''^^ 
 
 217. Instances in which Certitied Coi.ies, etc.. have been Held 
 
 Admissible ^'^^ 
 
 218. Certificates by Exe<utive Officere "^^^ 
 
 219. Certiticates by Clerks '^^^ 
 
 220. Certiticates by Judicial Officers 'J-" 
 
 221. NoUrial Certiticates 'J^^ 
 
 222. Marine Protests and Surveys ^^-^ 
 
 223. Considar Certiticates ^^6 
 
 224. Certificates by Appraisers', Inspectors, etc '1*5 
 
 225. Certificates by Land Officers ^1"^ 
 
 226. Surveys of Land '^'' 
 
 227. United States Departmental Reconls 721 
 
 228. Land Office Records and Pai^era '^22 
 
 229. Custom-house Records '"*
 
 xu 
 
 TABLE Or CONTENTS. 
 
 FAGE. 
 
 Sec. 230. State Land Office Papers ' 723 
 
 231. State Grants 724 
 
 232. State Records 725 
 
 233. Verdicts 726 
 
 254. Judgments ~ 726 
 
 255. Proof of Foreign Judgments, etc 731 
 
 336. Between what Parties Admissible 733 
 
 237. Judgment Conclusive of Fact Recorded 736 
 
 238. Not Conclusive on Immaterial Averments 736 
 
 239. Effect of Judgment 737 
 
 240. Distinction Between Judgments of Coui'ts of Exclusive and 
 
 Concurrent Jurisdiction 739 
 
 241. Judgments In Rem 733 
 
 242. What Parties Bound by a Juagment 741 
 
 243. Proceedings Between Strangers 746 
 
 244. Rule with Reference to Real and Nominal Parties 746 
 
 245. Rule as to -Judgment in Ejectment 747 
 
 246. When the Parties are the Same, but not Suing in the Same 
 
 Right 748 
 
 247. How far a Judgment Concludes a Party 749 
 
 248. Effect of Foreign Judgments 754 
 
 249. Instances inwhich Foreign Judgment may be Avoided. .. 761
 
 EVIDENCE. 
 
 CIIAFIKK I. 
 
 BEST AM) >KCONDARY EVIDENCE. 
 
 ■ICTIOM. 
 
 1. IVimary KvKlence, what in. 
 
 2. Huk- lu* to imn- ly CoUuteral Mattere. 
 8. RuU' »H to lujiui'V able**, etc. 
 
 4. ApiilicAtiun of th<- Rule. 
 
 6. A.liniwic.nH of a Party (lu<i»enw with the Rulo. when. 
 
 6. t'oi'i<-»* II..I a.lmiwHible. uiiI«*hk. 
 
 7. Setou.lary Kvi.l.Mic-. what i»* ; ailmitvihle when. 
 
 8. L.»iH ..f PajHT. how e.*tKblb.he«l. 
 
 9. S«*ftn-h, Surti<ieii«-y of. 
 
 10. When Pa|MT in in P.^wiwion of thi- A<lver»e Party. R»'»- 
 
 11. When Notice to PnNliice. iM unneceHnary. 
 la. KtT.«t of Notice tt» PrtMluce Pfti»er8. 
 
 13. How the ('ont<'nt« of Writinpn may »>e prove«l. 
 
 S«c. 1. Primary Evidence, what la. 
 
 It isapt'iicnil ruU-. iiiiivci->s:il in its application, and ono 
 hi«:lilv osMMitial to tlu- pure administration of justice, that 
 Me U^(, or hiiihist kind of '"/'/"/c*' vlurh the nature of the 
 case athnils if mnst h*- rjinn, an^l evidence whic li inesui)- 
 IMjses better evideure Ix-hind, in tlii' party's poxscs-sion or 
 pi)wer. i.s bccondary cvi.i. lu-e.' Tliu^. wlxro a .-outract has 
 
 » Tayhw P Rib'p«, 1 Pet. (U. S.) ni/es a« atfonliiig th.- >,'n-Htest cer- 
 891 : Colton r. faiupUll, 3 Tex. tainty of the fact in <iuet*tion, and, 
 493; NewHom r. Ja«ki»on. 2C (Ja. until it is shown that the proiluction 
 'i4I i Haitt r. Moult<.n. 21 N. H. of thi.s claiw of evidence is nut of the 
 .^HG ; The gueen's (*a.— . li Hr. B. i>ower of the party, no other proof 
 'JS7 ; Union Bank r. Kllin. 3 La. An. of the fa-t ip, in ^feneral, adniiHsi- 
 1H8: Gn-ely r. gninil.y. 2l> N. H. l>le. All evidence falling,' short of 
 235 ; Morton r. While! 1(5 Me. .'iS. thi.s is s«-condary. and th.- question 
 Primary evi.lence. a« state.l in th.' whether evidence is primary or Bee- 
 text, is that which the law reco^- ondarj', ha« reference to the natui-o 
 1
 
 EVIDENCE. 
 
 [chap. I. 
 
 been red need to writing, the writing is the best evidence of 
 its contents, and must he produced, unless the jparty satisfies 
 the court that it has been lost or destroyed, or, without fault 
 on his jjart, he is unable to produce it} So where an auc- 
 tioneer's niemorauduni of a sale, becomes important, the orig- 
 inal memorandum, alone, is sufficient to establish the sale, 
 and a mere copy thereof is not admissible ;- so, too, in some 
 of the cases it is held that a copy of a message sent by tele- 
 <>-rapli is not competent evidence, unless the original dispatch, 
 left at the transmitting office, is shown to have been destroy- ed 
 or lost,-* or that the original, and the office from which it was 
 sent, are beyond the jurisdiction cf the court.^ This is upon 
 the grounds that the message as written, is the original, while 
 that received is merely a copy and therefore without any of 
 
 of the case, in the abstract, and not 
 to the pecuhar cii-cumstances under 
 which the party, in the particular 
 case, may be placed. It is a dis- 
 tinction of law, and not of fact ; ve- 
 ferrinQ "My t" O'e qaalitij, and not 
 to the strtngilt of the jyroof, Rich- 
 ardson V. Milburn, 17 Md. 67, or, as 
 was said in the case last cited, to its 
 grade and not to its concht^iveness. 
 
 ■ Felton V. McDonald, 4 Dev. (N. 
 C.) L. 406 ; Wilson v. Young, 2 Cr. 
 (U. S. C. C.) 33 ; Williams ii. Jones, 
 12 Ind. 561 ; Brewton v. Driver, 13 
 Ala. 826; Fitzgerald v. Adams, 9 
 Ga. 471. Where a contract has 
 been executed in duplicate, each 
 pai-t is an original. Totten v. Buey, 
 57 Md. 446. The rule requiring the 
 production of the best evidence, as 
 stated supra, excludes only that ev- 
 idence which itself indicates the ex- 
 istence of more original sources of 
 information ; and, consequently, 
 where there is no substitution of 
 inferior evidence, but only a selec- 
 tion of weaker, instead of stronger 
 proofs, the rule is not infringed. 1 
 Phillips on Ev. 418 ; Taylor on Ev. 
 281. 
 
 ' Davis V. Robertson, Mill (S. C.) 
 Const. 71. 
 
 ^ Smith V. Easton, 54 Md. 138 ; 
 39 Am. Rep. 355. This must be 
 understood, however, as applying 
 only in cases where the telegram 
 is relied upon to sustain the action, 
 or to establish a substantial fact, 
 and in such cases, it is held that 
 even the original is not admissible 
 unless it is proved to have been 
 sent by the party by whom it pur- 
 ports to have been, and this rule 
 has been held to apply where a 
 message has been sent to a party, 
 and a I'eply purporting to come 
 from him has been received in due 
 course, the courts holding that the 
 same rule in such cases does not 
 apply, as is held in relation to let- 
 ters received in due coui-se by mail. 
 Hawley v. Whipple, 48 N. H. 487. 
 The message must be sho^vn to have 
 been sent by the party from whom 
 it pui-jiorts to have come, either by 
 proof that it was in his handwT-iting, 
 or that it was sent by his direction 
 or authority. United States v. Bab- 
 cock, 3 Dill. (U. S. C. C.) 576. 
 
 * Whilden v. Merchant's, &c., 
 Bank, 64 Ala. 1.
 
 SEC. l.J BEST AND SECONDARY EVIDENCE. 3 
 
 the essential elements of prinuuy evidence. But, it is evi- 
 dent thiit this rule cannot have a general application, as 
 there are instances in Avhich the message received must be 
 deemed the original, and the rule relative thereto may be 
 stated as follows : The original message, whatever it may 
 be, must be produced, and in all cases where the company 
 can be considered the agent of the sender, the message as 
 received, in all questions between the sender and the person 
 receiving it, is treated as the original.^ A title by deed 
 must be proved by the production of the deed itself;^ and 
 ffenerallv it inav be said that the contents of a wntten instrii- 
 ment ivliivh is cupable of being j)roduced must be jwoved by 
 the instrument itself, and not by p>arol evidence.^ There are 
 three classes of ca*es to which this rule applies : First, Those 
 instruments which the law requires to be in luriling ,-^ second, 
 Those contracts which the ^;('r^/e« have reduced to ivriting ; 
 and third. All other writings, the existence or contents of 
 which are disputed, and which are material either to the issue, 
 or to the credit of a witness. 
 
 When a writing does not fall under either of these heads, 
 there is no ground for its excluding oral evidence ; as, if a 
 written comnmnication is accompanied by a verbal one to the 
 same cll'ert, the verbal communication may be received as 
 independent evidence, but not to prove the contents of the 
 writing, or as a substitute for it. It is ui)(>n this ground 
 that the fact of payment may be shoAvn by parol, although 
 a receii)t in writing was given ;^ or that a verbal demand for 
 goods may be shown in an action of trover, although a writ- 
 ten demand was made at the same time:** or that what the 
 
 ' Laviland v. Green, 20 "Wis. 431 ; alive, sane, and within the jurisdic- 
 
 Durkee v. Vt. Central R. R. Co., 29 tion of the court, and can be found 
 
 Vt. 127 ; see also Trevor v. Wood, by dilig'ent inquiiy. "Wright v. Tat- 
 
 36 N. Y. .307 ; Dunning t). Roberts, ham, 1 Ad. & El. 21. See post, 
 
 35 Barb. (N. Y.) 4(33. See post, § § , Proof of Attested Instruments. 
 , Tdegrams. 'The Queen's Case, 2 B. & B. 
 
 » Alivon r\ Furnival, 1 C. M. & R. 2S9 ; Turner v. Singleton, 2 A. K. 
 
 292. So, on reference to a deed or Mar. (Ky.) 15; Morrill v. Otis, 12 
 
 any other attested instrument, its N. H. 466. 
 
 due execution must in general be * Fitzgerald v. Adams, 9 Ga. 471. 
 proved, if questioned, by the pro- * Jacob v. Lindsay, 1 East, 460. 
 duction of the attesting witness, if ' Smith v. Young, 4 Camp. 439.
 
 4 EVIDENCE. [CIIAP. I. 
 
 testimony given by a witness upon a trial was, may be shown 
 by parol, although the judge or clerk took it down in writ- 
 ing, l)ut which the witness did uot sign.' 
 
 Before a deposition can be admitted in evidence, it must 
 be shown that the party who made it cannot be produced 
 bv the party offering it, and that at the time when it was 
 taken a cause therefor, coming within the provision of the 
 statute relating thereto, existed;- and in order to render a 
 d('i)osition taken in ijerpeluam admissible, it must be shown 
 that the person making it is dead,^ because in all cases the 
 oral evidence of a witness, given upon the stand, in the pres- 
 ence of the triers, is regarded as ot a higher knid than that 
 given ])y Avay of deposition. 
 
 Sec. 2. Rule as to merely Collateral Matters. 
 
 The rule, as stated in reference to the production of writ- 
 ten communications or agreements, has no application when 
 they are merely collateral to the issue. This is the case when 
 parol evidence relates to matters distinct from a written con- 
 tract or instrument, although the same fact could be proved 
 or disproved by the writing.^ Thus, while an action to 
 recover for extra work done under a written contract, and 
 rclafiny to the matters embraced in the contract, cannot be 
 maintained without the production of the written contract;^ 
 yet if an entirely separate order is given for the extras, then 
 the production of the written contract is not necessary,® and 
 parol evidence of the order and of the performance of the 
 work is primary, because the ground of action does not rest 
 upon the written contract, but upon the implied contract 
 which arises fiom the order to perform the work. But to 
 
 ' Jeans v. Wheeden, 2 M. & R. e\ddence than that contained in the 
 
 486. certificate that the witness is absent 
 
 ' Harvard v. Maale, 2 H. & J. from the State at the time of the 
 
 (Md.) 249 ; Dunn v. Dunn, 11 Mich, trial. 
 
 264; Livermore v. Eddy, 30 Mo. = Fai-mer'?\ Gray, 21 Pick. (Mass.) 
 
 547 ; "Wethcrell v. Pattei-son, 31 id. 243. 
 
 458. In the cases cited from Mis- ■* Shiels v. Starks, 14 Ga. 529. 
 
 souri it was hold that where the ^ Buxton v. Cornish, 12 M. & W. 
 
 cause for taking the deposition was, 426 ; Vincent v. Cole, M. & M. 257. 
 
 that the witness was about to leave * Reed v. Batte, M. & M. 84. 
 the State, it must be shown by other
 
 SEC. 2.J BEST AND SECONDARY EVIDENCE. 5 
 
 jiiuke parol evidence admissible in such cases, it must refer 
 to a suljject distinct from th,e written contract. Thus, pay- 
 ment of contracts, and of judgments even, may be proved 
 i)y parol, although there ma}' l)e written or even record evi- 
 dence of the liict.^ So, too, th,e appointment of an agent 
 may l)o shown by parol, even though his appointment is in 
 writing ]- but the extent of his powers, as conferred hy the 
 icritten ujyjmntment, can only be shown by the production 
 of the writing itself,^ although it may be ^hown by parol 
 that ho did certain acts as agent which were ratified by his 
 principal, for the purpose of showing that he had authority 
 to do a certain act as such agent.^ So the fact of birth, 
 marriage, death or buiial may be proved by parol, although 
 a narrative or memorandum of the event has been entered in 
 registers which the law requires to be kept.^ The rule is, 
 that where the narrative of an extrinsic fact has been com- 
 mitted to writing, the fact may nevertheless be proved by 
 parol. Thus, the fact that a receipt for money has been 
 given will not exclude parol proof of its payment.^ So, 
 where an oral and written notice to the same effect is served 
 
 ' Planters' Bank v. Borland, 5 Ala. ^ Parke, B., in Whitfield v. Brand, 
 
 531 ; Kinysbuiy ■?>. Moses, 45 N. II. ante. 
 
 222; Keene •?!. Mead, 3 Pit. (U.S.) ^Concord v. Concord Bank, 16 
 
 7 ; Page v. Einstein, 7 Jones (N. C.) N. H. 26. 
 
 L. 147. Such evidence is admissible ^ Owings v. Wyant, 1 H. & McH. 
 
 to establish the fact of jiaymeiit, hut (Md.) 393; Com. v. Norcross, 9 
 
 not to show that a receipt was Mass. 492 ; Evans v. Morgan, 2 C. 
 
 given, or that an indoi-sement of the & S. 453 ; Birt v. Barlow, 1 Doug, 
 
 anionnt was made ui)on a note or 172 ; Nixon v. Brown, 4 Blackf. 
 
 upon an execution. French f. Fra- (Ind.) 157; Mori-is v. Miller, 1 W. 
 
 zier, 7 J. J. Mar. (Ky.) 425. So the Bl. 632 ; St. Devereux v. Much Dew 
 
 payment of taxes may be shown by Chixrch, 1 id. 367. The reason for 
 
 l)arol, and the production of the this is, that the contents of the reg- 
 
 record is not necessary. Davis v. ister is nothing more than a collat- 
 
 Hare, 82 Ark. 386 ; Dennett v. eral or subsequent memorial of the 
 
 Crocker, 8 Me. 239 ; Adams v. fact, and forms no part of the fact 
 
 Beale, 19 Iowa, 61. Papnent may to be proved, and, while it may be 
 
 be proved by parol to have been a convenient mode of jiroof, cannot 
 
 made in promissory notes, without exclude other evidence. Evans v. 
 
 theproductionof the notes. Daniels Morgsin, ante. 
 
 V. .Johnson, 29 Ga. 207. ' Rambert V. Cohen, 4 Esp. 213. 
 
 " Whitfield V. Brand, 16 M. & W. 
 282.
 
 Q EVIDENCE. [CHAP. I. 
 
 upon a party, the written notice need not be produced, un- 
 less the hiw makes a written notice imperative ;' and the 
 siune is true where there is an oral admission of a debt and a 
 written promise to pa}-.^ ^Vhere there is a written demise, 
 oral evidence of occui)ancy by the tenant, under the lease, 
 may be ijiven ;•' but the terms of the tenancy, as the amount 
 of rent, duration of the term, etc., can only be shown by the 
 lease itself.^ And the same is also true where proof is re- 
 quired to be matle as to the person under whom the premises 
 Avere occupied.* 
 
 As between third persons and the members of a firm, the 
 fact of i)artnersliip may be estal/iished by parol, although 
 there exists a deed of partnership.^ So parol evidence is 
 admissible to show that a person who took the acknowledg- 
 ment of a deed of real estate, was at the time a justice of the 
 peace, although the certificate does not state the fact,'' and 
 generally, i)arol proof is admissible to prove that a person 
 has notoriously acted as a public officer, for the purpose of 
 establishing his official character without producing his 
 connnis.-^ion.*^ Parol evidence is admissible to show at what 
 time a certain railroad train is due at a certain station, 
 although the company has issued a printed time table fixing 
 the time of arrival.** So, although a vessel was cleared at 
 
 ■Smith V. Young, 1 Camp. 439. (U. S.)494; Hammon v. Sexton, 69 
 
 And where the notice is mei-cly col- Ind. 37. 
 
 hiteral to thei:-sue, itmay be proved * Strother v. Ban, 5 Bing-. 136; 
 
 by parol, although it was given in Rex v. Merthyr-Tydvil, 1 B. & Ad. 
 
 wnting. Polly v. McCall, 1 Ala. 29 ; Augustein v. Challis, 1 Exch. 
 
 Sel. Cas. 246 ; see also Kelly v. Tay- 279. 
 
 lor, 23 Cal. 11. This rule rests up- * Doe v. Harvey, 8 Bing. 289. But 
 
 on the ground that there are two contra, see Augustein v. Challis, 
 
 independent sources of evidence, ante. 
 
 and ther(»fore that the party may ® Alderson v. Clay, 1 Stai-kie, 405. 
 
 resoi-t to either ; but it must be re- ' State v. McNally, 34 Me. 210 ; 
 
 niembered that the rule only per- Rhoades v. Selin, 4 Wash. (U. S.) 
 
 mits the party to show what the 715 ; Bank of U. S. v. Benning, 4 
 
 verbal notice was, and does not per- Cr. (U. S. C. C.) 81 ; Shults ir. Moore, 
 
 mit him to show what the written 1 McLean (U. S. C. C), 520. 
 
 notice contained. » Jacolis v. United States, 1 Brock. 
 
 » Singleton v. Ban-ett, 2 C. & S. (U. S. C. C.) 520. 
 
 369. 8 Chicago, &c., R.R. Co. v. George, 
 
 =* Rex r. Holy Trinity, 7 B. & C. 19 111. 510. 
 611 ; Guitard v. Stoddard, 16 How.
 
 SEC. 3.J BEST AND SECONDARY EVIDENCE. 7 
 
 the custom house, and her clearance is in writing, parol 
 evidence is admissible to sIioav her destination.^ 
 
 Sec. 3. Riiles as to Immovables, &c. 
 
 Inscriptions on monuments, tombstones, walls, surveyors' 
 marks upon trees, or notices affixed to boards, and other im- 
 movables may l)e proved by parol.^ This is upon the ground 
 that the production of primary evidence is physically impos- 
 sible, and as public convenience requires that such evidence 
 should be received, and stands upon the same ground that copies 
 of entries in the l>ooks of the Bank of England are admitted. 
 The books of that bank being of great public concern to all 
 of the national creditors, and as the removal of them would 
 be so inconvenient, it was held by Lord Mansfield ^ that 
 copies of entries therein might be received, and that princi- 
 ple has been ad()[)tcd in England in a variety of cases since with- 
 out question.^ But copies of the journals of the House of Com- 
 mons were rejected by Lord ^Mansfield^ upon the ground 
 that no such inconvenience would attend their removal, and 
 
 ' Iladden v. People, 25 N. Y. 373 
 2 Bartholomew v. Stephens, 8 C. 
 & P. 728 ; Rex v. Fursey, 6 id. 84 ; 
 Coyle V. Cole, 6 C. & P. 337 ; Tracy 
 Peerage Case, 10 CI. & F. 1G4 ; 
 Sayer v. Glossop, 2 Exch. 409 n ; 
 Mortimer v. M'Callan, 6 :.I. & W. 
 68 ; Senney v. Wado, 7 Sim. 595. 
 It must be remembered, however, 
 that in the case of notices so affixed 
 to walls, etc., it imtst appear that 
 Vie document was affixed to the free- 
 hold and could not easily le removed, 
 and if it is shown to have merely 
 been fixed to the wall of a building 
 by a nail or other contrivance to 
 hold it in place, notice to ju-oduce it 
 must be given before secondary 
 evidence of its contents can be re- 
 ceived. Jones V. Tarleton, 9 M. & 
 W. G75. The same rule apphes to 
 documents deposited in a foreign 
 country when the laws or estab- 
 lished usages of such country will 
 not permit its removal, because iu 
 
 such cases, as in the case of mural 
 inscriptions, etc., their production 
 by the party is physically impossi- 
 ble Alivon V. Furnival, 1 C, M. & 
 R. 277. In the case of mural in- 
 sci-iptions, their value as evidence 
 depends almost entirely upon the 
 authority under which they were 
 made, and the distance of time be- 
 tween their erection and the event 
 they commemorate. Atheney Peer- 
 age, Pr. Min. 45. And the ease 
 ■with which such e\'idence can be 
 manufactured renders the strictest 
 scrutiny necessary to prevent im- 
 pojilion. 
 
 ^ Rex V. Gordon, Doug. 593 n ; 
 Lynch v. Clerk, 3 Salk. 154 ; Marsh 
 V. Calnett, 2 Esp. 605. The same 
 rule prevails as to the books of cus- 
 tom houses. Rex v. King, 27 R. 
 234 ; Fuller v. Fitch, Carth. 846. 
 
 * Lord Abinger, C. B., in Mor- 
 'timer v. M'Callan, 6 M. & W. 67. 
 
 '' In Rex V. Gordon, ante.
 
 g KVIDENCE. [CIIAP. I. 
 
 the same has been held in later cases, i The rule may be 
 said to bo that whtre hooks, some of the contents of ichich it 
 is dasiruble to prove, are of great iniUic concern, and their 
 removal tvonld he jyroductive of great jpuhlic inconvenience, 
 copies of them may be received in evidence. This has been 
 held in reference to the books of the Customs and Excise.^ 
 *' It Avas formerly," says Lord Abinger, C. B.,^ " the prac- 
 tice to produce them, but after some consideration it was 
 thought that the pul)Uc inconvenience was so great, that it 
 has Ijccome every day's practice, in this and other courts, to 
 allow copies of those books to be received in evidence. TJiat 
 goes ujjon the general principle of not removing hooks of gen- 
 eral concernment. Then does not that principle apply in 
 nil such cases ? I think a case has been aptly put by my 
 Brother Aldersox, that if a writing were on a wall, 
 miirht you not give evidence of the character of the hand- 
 writing, as proljable evidence of who wrote it, without pro- 
 ducing the wall in court? Suppose a man, instead of 
 printing a libel in the usual way, were to write it on the 
 dead Avails of the metropolis, is it to be said that he cannot 
 be puni.bhed because you cannot produce the wall in court ? 
 ;May you not, in such a case, prove his handwriting ? Nor 
 is this case altogether imaginary — I would mention a case 
 which occurred very early in my professional life, where a 
 man was convicted of Avriting a libel on the wall of the 
 Liverpool j;iil. In that case the handwriting of the party 
 Avas i)rovcd, and he was convicted. Formerly the actual 
 production of an ansAver in Chancery Avas required, but the 
 Lord Chancellor's officers had been in the haljit of carrying 
 out these documents Avithout the consent of the Lord Chan- 
 cellor, and as that AV'as found to ])e inconvenient, they were 
 forbidden to do it, and the coiLsequence is, that an office 
 copy is noAV given in evidence, in cases where the original 
 Avould be evidence. I also remember a case where tAVO per- 
 sons Avere convicted in Ireland of a misdemeanor acfainst the 
 revenue laws, and Avho could only be identified ])y proving 
 
 ' See 29 St. Trials, 685, where « Rex v. King, 2 T. R. 234 ; Ful- 
 pn'Tiferf cojiies of such journals were ler v. Fitch, Carth. 34(;. 
 rejected. ' In Mortimer v. M'Callan, 6 M. 
 
 & W. 68.
 
 SEC. 4.J BEST AND SECONDAKY EVIDENCE. 9 
 
 the entries they had made iii the custom house Ijooks, which 
 were uot rcinovaljle upon the general principle of incon- 
 venience to the public ; and some one was called, not to 
 prove that he saw them there, but to prove their hand- 
 writing ; a bill of exceptions was tendered upon that very 
 point, and the House of Lords determined that it was ad- 
 missible evidence. That is exactly this case, except that it 
 is stronger. Therefore I think it is competent evidence, 
 for the purpose of proving the identity of the party who 
 accepts stock, to show that an entry in the books of the 
 Bank of England was the handwriting of that party. The 
 principle of law is, that where you cannot get the best pos- 
 sible evidence, you must take the next best ; and where the 
 law has laid down that you cannot remove the document in 
 which thcAvriting is made, you are to be entitled to the next 
 best evidence of it, by proving whose writing it was." 
 
 Sec. 4. Application of the Rule. 
 
 The rule that secondary evidence is not admissible to take 
 the place of a writing applies to Avarrants,' executions, ^ 
 returns on executions,^ bills of sale,'* subscriptions to stock, 
 etc.,^ letters of administration,* raaps,'^ records,' mortgages,* 
 deeds of gift,'" letters, '• telegrams, •'^ receipts,'^ deeds,'* and in 
 
 ' State V. Athertoii, IG N. H. 203 ; 472 ; Rains v. Prettyman, 29 Ga 
 
 United States v. Wary, 1 Ci-. (U. S. 529. 
 
 C. C.) 312; Hackett v. Wing-, 6 "' Farrell -?'. Brennan, 32 Mo. 328 
 
 Allen (Mass.), 58. Kidd v. Crammell, 17 Ala. 648 
 
 " Swetser v. Drove, 19 Ala. 255. Guerrin v. Hunt, 6 Minn. 375 ; Hal 
 
 ' Rand v. Hadlock, 6 N. H. 514 ; combe v. State, 28 Ga. 66. 
 
 Mo.Dade v. Mead, 18 Ala. 214. '" Williams v. Brickell, 37 Miss 
 
 * Yarbrough v. Hudson,19 Ala.653. 682 ; Matteson v. Mayes, 25 111. 591 
 
 * Cincinnati R. R. Co. v. Cochran, But see Cairo, &c., R. R. Co. V 
 17 Ind. 516. Mahoney, 82 111. 78, in which it was 
 
 * Smith V. Wil.«on, 17 Md. 480. held in an action by a surgeon 
 '' Pool v. Myers, 21 Miss. 466. against a railroad company for treat- 
 ® Thelluson v. Shedden, 2 N. R. ing an employee, the fact of the 
 
 228 ; Bogart v. Green, 8 Mo. 115 ; injury being proved, that it might 
 
 Graham v. O'Fallow, 3 id. 507. But, be shown that the station agent noti- 
 
 where a record, although required fied the superintendent of the fact 
 
 by law, has not been made, the facts by telegram. 
 
 which should so offer may be proved " Hamlin v. Atkinson, 6 Rand, 
 
 by pai'ol. Gillett v. Commissioners (Va.) 574 ; Ashe v. De Rasset, 8 
 
 of Lyon, 18 Kan. 410. Jones (N. C.) L. 240. 
 
 * Ord V. McKee, 5 Cal. 515. " Hanson v. Armstrong, 22 111. 
 " Andrews v. Hooper, 13 Mass. 442. Before secondary evidence of
 
 10 EVIDENCE. [chap. I. 
 
 deed any and all -writings, tlie contents of which arc material to 
 the issue. \Vhere deeds, contracts, etc., are executed in 
 duplicate by all the parties, each part is treated as an orig- 
 inal,' hut where each part is executed by one party onl}-, each 
 counterpart is alternately the best evidence as against the 
 l)arty sealing it, and those in privity with hini,^ and second- 
 ary evidence may be given as to the contents of the other 
 ])art.^ While, where the law requires that a certain writing 
 shall be recorded, the record is the best evidence of the facts 
 recited therein, yet, until it is recorded, the writing itself 
 is admissible,^ and this is also the case where the statute does 
 not require that a writing shall be recorded, or where it is 
 refused because of informalities. Thus the statute made no 
 provision that the action of a school district upon the ques- 
 tion of borrowing money should be recorded or that the 
 record should be the only primary evidence on the question 
 or its results, and it was held that there might be oral pri- 
 mary evidence thereon.^ But where the statute requires 
 that certain instruments or matters shall be recorded and 
 \ rovides that such records shall be evidence of the facts con- 
 tained therein, parol evidence is not admissible to prove 
 the facts stated in the record.^ 
 
 Sec. 5. Admissions of a Party dispense with the Rule, when. 
 
 In England, a tacit exception to the rule that oral testi- 
 mony cannot be substituted for any writing, is made in favor 
 of the parol admissions of a party to the record and of his 
 acts amounting to admissions, and such admissions are re- 
 
 thecontentsof a deed can be given, Trayer v. Reeder, 45 Iowa, 272; 
 
 three facts must appear: 1st, the Mason -u. Buchanan, 62 Ala. 110. 
 existence and genuineness of the ' Calling v. Tremeck, 6 B. & C. 
 
 original ; 2(1, its loss ; and 3d, evi- 398 ; Brown v. Woodman, 6 C. & P. 
 
 <lence that the paper offered is an 206. 
 
 examined or sworn copy. Oliver * Hall v. Ball, 3 M. & G. 42 j 
 
 V. Parsons, 30 Ga. 391. But, as a Doe v. Ross, 7 M. & W. 102. 
 deed is not a written evidence of the « ^unn & Godbald, 3 Bing. 292. 
 contract between the vendor an.l < Randall v. Preston, 52 Vt. 198. 
 vendee, but rather a performance ^ Board of Education v. Loft, 7 
 
 of the vendor's obligation under the 111. App. 571 . 
 
 contract, it may be shown by parol • Beaudeau v. Cape Girardeau, 71 
 
 what the contract in fact was. Mo. 392.
 
 SEC. 6.] BEST AND SECONDARY EVIDENCE. 11 
 
 ceived as primary evidence, although they relate to the con- 
 tents of a deed or other instrument which are directly in 
 issue, ^ and this is also the rule in Massachusetts.^ But in 
 New York it has been held, that the admissions of a party 
 to the record can only be resorted to as evidence, where 
 direct parol testimony of the facts thus sought to be proved, 
 would be admissible, and consequently that they cannot be 
 received for the purpose of proving matters of record, nor 
 the contents of a written instrument, except in those cases 
 where a ground has been laid for the reception of secondary 
 evidence.^ And although, in that State, the execution of a 
 mere attested contract in writing may be proved in the first 
 instance by such admissions,^ yet such is not the case with 
 regard to the execution of an instrument under seal, unless 
 where a legal excuse has l)een given for the failure to produce 
 the sid)scril)iug witness.^ But on this point the law is the 
 same in England, since, while it appears from the case 
 cited^ that admissions by a party to the record are there 
 regarded as primary, and not as secondary evidence of the 
 contents of a written instrument, it has, notwithstanding, 
 been held that an acknowledgment under oath, by an answer 
 in Chancery, will not sufiice to prove the execution, without 
 accounting for the aljsence of a witness by whom it has been 
 attested.*^ It is, however, obvious that further proof may 
 be waived, by an admission made for that purpose in court; 
 and it has been held in Kentucky^ that a party to an instru- 
 ment might, in all cases, })r()ve its execution by himself. 
 
 Sec. 6. Copies not admissible, unless. 
 
 Copies of writings, however accurate, in the absence of a 
 statute making them primary evidence, are merely second- 
 
 ' Slatteree v. Pooley, G M. & W. Park, 4 id. .522 ; Threadgill v. White, 
 
 GG4 ; Newhall v. Holt, (J id. 662. 11 Ired. (N. C.) 591. 
 
 » Loomis i\ Woodhain, 8 Gray * Hall v. Phelps, 2 John. (N. Y.) 
 
 (Ma.ss.), 5.57; Smith v. Palmer, 6 451. 
 
 Cash. (Mass.) 513. = Fox v. Kiel, 3 John. (N. Y.) 477; 
 
 ^ The Welland Canal Co. v. Hath- Henry v. Bishop, 2 Wend. (N. Y.) 
 
 away, 8 Wend. (N. Y.) 480; Jenner 575; Hollenbeck v. Fleming, 6 Hill 
 
 i».Jolifre,6 John.(N.Y.) 5; Hasbrouck (N. Y.) 306. 
 
 V. Baker, 10 id. 248. See also Jamison ' Slatteree v. Pooley, ante. 
 
 V. Conway, 10 111. 227; Mason v. ' Call r. Dunning, 4 East, 53. 
 
 * Smith V. Maro, 7 J. J. Mar. 445.
 
 12 EVIDENCE. [CIIAP. I. 
 
 ary evidence, uiitl are not adiiiisi^ible unless a proper ground 
 for their admission as such has been laid/ and this rule, 
 applies wiien it l)econies important to prove the contents of 
 a manuscript which has ))een printed. The printed copy is 
 not admissible unless a proper foundation for its admission 
 has been laid ; ' also to letter-press copies and to copies taken 
 by a copying machine.^ But when the foundation has been 
 laid for the admission of a printed copy, all printed copies 
 struck otf in one common impression are admissible* It 
 may sometimes be a question of some importance, and also 
 of some nicety, to determine what instrument constitutes 
 the primary evidence of a transaction. Especially is this 
 question important in the case of bought and sold notes, and 
 of telegrams — in the former case, as to whether the bought 
 and sold rates or the broker's books are the proper evidence 
 of the contract, and in the latter, whether the original 
 message left at the transmitting office, or the message as 
 received by the party to whom it was sent, is the original ; 
 and these questions will be considered under their proper 
 heads. 
 
 Sec. 7. Secondary Evidence, what is ; admissible when. 
 
 Secondary evidence is admitted in all cases where the 
 principle which excludes it, to aid the supposed existence of 
 better evidence behind, which it is within the power of the 
 party to produce, does not apply ; and the party desiring to 
 
 ' Munson v. Blain, 15 Ind. 242 ; ^ Smith v. Moorehead Mfg. Co., 
 Lungsford V. Smith, 12 Gratt. (Va.) 23 Minn. 141 ; Nodin v. Murray, 3 
 554; Morrill v. Foster, 32 N. H. 358; Camp. 228. Press copies of letters 
 Creed v. White, 11 Humph. (Tenn.) are admissible against a party if 
 549 ; Benton v. Craig, 2 Mo. 198 ; they purport to have been written 
 Chambers v. Hunt, 22 N. Y. L. 552; by him, and are found in his posses- 
 Marshall V. Harvey, 9 Gill (Md.), sion, and appear to be in his hand- 
 251; Perkins ■». Ermel, 2 Kan. 325; writing, and the originals cannot be 
 Redman v. Green, 3 Med. (N. C.) procured. Com. v. Jeflfries, 7 Allen 
 Ed. 54; Boynton v. Rees, 8 Pick. (Mass.), 548 ; see also Com. i). East- 
 (MasH.) 329; Bowman v. Smith, 1 man, 1 Cush. (Mass.) 189, where 
 Strobh. (S. C.) 246; Carr v. Carr, 20 such evidence was admitted without 
 Mo. 408; Patton v. Rambo, 20 Ala. objection. 
 485. See post, § , Copies. * Rex v. Watson, ante. 
 
 » Rex V. Watson, 32 How. St. Tr. 
 82.
 
 SEC. 7.] BEST AXD SECONDARr EVIDENCE. 1.^ 
 
 make use of it, may prove that better evidence cannot l)e 
 obtained by him.* 
 
 By the civil law, when documents or private writings had 
 been lost by inevitable accident, any person having occasion 
 to use them as evidence, was permitted to do so. The mere 
 fact of loss, however, was not enough, it was also necessary 
 to be shown that the loss was the result of an inevitable 
 accident. "For instance," says Pothier, 781, "if in the 
 case of a fire, or the pillage of my house, I had lost my 
 papers, among which were the notes of my debtors, to 
 whom I had lent money, or the acquittances for sums which 
 I had paid to my creditors ; whatever the amount of such 
 notes or acquittances might be, I ought to be allowed to 
 give parol evidence of the sums which I had lent or paid, 
 because it is by an unforeseen accident, and without my fault 
 that I have lost the notes or acquittances, which would have 
 furnished me with written evidence." B3" our law, however, 
 parol proof of the contents of written instruments may be 
 given upon proof of their loss, from whatever cause, whether 
 inevitable accident or sheer carelessness, or the voluntary 
 acts of the party, provided proof is first made that diligent, 
 but unavailing, search has been made for them in the place 
 Avhere they would l)e most likely to be found, and the evi- 
 dence of loss and search is such as to make it apparent that 
 parol evidence is the best evidence in the party's possession, 
 or in his power to produce.^ The contents of a paper vpl- 
 untariJij destroyed l)y a party may, after proof of its de- 
 
 ' Rainy v. Bravo, L. R. 4 C. P. 27 Ala. 281 ; Creed v. White, II 
 
 287. Humph. (Tenn.) 549 ; Nicholson v. 
 
 « Greeley t?. Quimby, 22 N. H. Hilliard, 2 Murph. (N. C.) 270; 
 
 335; Williams i). Jones, 12 Ind. 561 ; Waller xi. School Dist., 22 Conn. 
 
 Newsoni v. Jackson, 26 Ga. 241 ; 326 ; Steamboat v. Young-, 3 Iowa, 
 
 Morton v. White, 16 Me. 53 ; Con- 268 ; State v. Gemmell, 1 Houst. 
 
 way V. State Bank, 13 Ark. 48; (Del.) 9; Smith v. Steele, 1 H. & M. 
 
 Mariner v. Saunders, 10 111. 113; (Md.) 419; Flynn ■?'. McGonnig-le, 9 
 
 Reddington ?). Gilman, 1 Bosw. (N. W. & S. (Penn.) 79; Tucker v. 
 
 Y.) 235 ; Holmes v. Harden, 12 BracUey, 33 Vt. 324 ; Pool -w. Myers, 
 
 Pick. (Mass.) 169; Sanders i?. San- 21 Miss. 466; Bog-art v. Green, 8 
 
 ders, 24 Ind. 133 ; Perkins v. Er- Mo. 115 ; Ord v. McKee, 5 Cal. 515 ; 
 
 mel, 2 Kan. 325 ; Chambers v. Hunt, Diener v. Diener, 5 Wis. 483. 
 22 N. J. 552 ; Hussey v. Roquemore,
 
 j^ EVIDENCE. [chap. I. 
 
 structlon, be sliowu by parol ;' hut he mustrejpel every infer^ 
 ence of a frauduleni design in its destruction, or such evi- 
 dence will' be rejcctea.2 when the loss of the original is 
 ostiiblishod, its contents may be proved by the next best 
 evidence attainable, and, if no better evidence exists, by 
 parol.3 So too when a written instrument that becomes 
 material to be used in evidence is beyond the jurisdiction of 
 the court, verbal evidence of its contents may be given.^ 
 
 It" the paper writing is one which the party himself should 
 liavc in his possession, l)cfore he can l^c permitted to put in 
 secondary evidence of its contents, he must prove cither its 
 loss or destruction, or its non-production must bo satisfacto- 
 rily accounted for.^ With respect to paper writings, proof 
 of their contents may be made by secondary evidence : 1st, 
 ^^llere (he orirjinal vjriting is beyond the jurisdiction of the 
 court, or is lost or destroyed f 2d, Where its jiroduction is 
 jjhysical/y iin^wssiblc, or highly inconvenient;'^ 3d, TP7<ere it 
 is in the hands of the oj)j)Osite ^iwty, who, u^on proiier notice, 
 refuses or neglects to produce it ;^ Aih., WJiere it is in the 
 
 ' People V. Deuuis, 4 Mich. 609 ; ' Tracy's Peerage Case, 10 CI. & 
 
 Riggs V. Taylor, 9 Wheat. (U. S.) F. 164 ; Mortimer v. McCallum, 6 
 
 483 ; Orne V. Cook, 31 111. 238 ; M. & W. 68. 
 
 Adam.s V. Guice, 30 Miss. 397 ; Dow- * United States v. "Winchester, 2 
 
 ncy V. Logan, 12 B. Mon. (Ky.) 386. McLean (U. S. C. C.) 135 ; Potiert-. 
 
 'Joannes v. Bennett, 5 Allen Barclay, 15 Ala. 439; Guines-y. Fall, 
 
 (Mius.s.), 169 ; Blake v. Fash, 44 111. 15 Cal. 63; Bank of South Carolina 
 
 302. V. Brown, Dudley (Ga.), 62 ; Jeffer- 
 
 ' Granger v. Warrington, 8 111. son v. Conaway, 5 Harr. (Del.) 16 ; 
 
 299 ; Cotton v. Campbell, 3 Tex. State v. Lockwood, 5 Blackf. (Ind.) 
 
 493; Greeley v. Quimhy, ante; 145; Anderson Bridge Co. ■?;. Apple- 
 
 Newsora v. Jackson, ante. ga.te, 13 Ind. 339; Patterson v. Lin- 
 
 * Foi-rest it. Forrest, 6 Duer (N. den, 14 Iowa 414; Dupey v. Ashby, 
 Y.), 102 ; Ralph v. Brown, 3 W. & S. 2 A. K. Mar, (Ky.) 11; Williams v. 
 (Punn.) 395; Shortisr v. She^jard, Benton, 12 La. An. 91 ; Kennedy v. 
 33 Ala. 648 ; Blanchard v. Young, Fowke, 5 H. & J. (Md.) 63; Robert- 
 11 Cu.sh. (Mass.) 341; Denten v. son ■?). Parks, 3 Md. Ch. 65; Com- 
 Hill. 4 Hayw. (Tenn.) 84. monwealth^j.Emery, 2Gray (Mass.), 
 
 * Wilson V. Young, 2 Cr. (U. S. C. 80 ; Bro^vne v. Boston, id. 494 ; Lew- 
 C.) 33 ; Felton v. McDonald, 4 D. & ire v. Dille, 17 Mo. 64; Farmers and 
 B. (N. C.) L. 400 ; Conway v. State Mechanics' Bank v. Lunergon, 21 
 Bank, 4 Ark. 48. Mo. 46; Ford v. Munson, 4 N. J. L. 
 
 * Rex V. Johnson, 7 East, 66 ; 93; Rogers v. Van Hoeson, 12 Johns. 
 Pendney v. Crescent Life Ins. Co., (N. Y.)220; Weeks ^. Lyon,18Barb. 
 21 La. An. 410; Halderman n. Hal- (N. Y.) 530; Milliken v. Barr, 7 
 derman, 1 Hemp. (Tena.) 559. Penn. St. 23; Cai-land v. Cunning-
 
 SEC. 8.j BEST AND SECONDARY EVIDENCE. 
 
 15 
 
 possession of a third person^ who is not compellable by law to 
 produce it and he, being called as a witness with subpoena 
 duces tecum, relies upon his right to imthhold it ;^ 5th, Where 
 there is a strong presumption of law in favor of the existence 
 of the fact which the ivriting could be used to sustain ;'^ 6th, 
 Where the papers are voluminous, and it is onlij necessary to 
 prove their general results;^ and, 7th, Where the question 
 arises on the examination of a ivitness on the voir dire^ 
 
 Sec. 8. Loss of Paper, how established. 
 
 lu order to bring u case within the first rule stated supra, 
 the burden is upon the party seeking to malve use of second- 
 ary evidence to establish either that the paper is beyond 
 the jurisdiction ol" the court,^ or that it is lost or destroyed.® 
 Not only must the party prove that such a paper once ex- 
 ham, 37 id. 228 ; Kimble v. Joslin, 1 * Sunday v. Thomas, 26 Ga. 537 ; 
 Overt. (Tenn.) 3S0 ; Farasworth v. Shorter v. Sheppard, 33 Ala. 648; 
 
 Sharp, 5 Sneed (Tenn.), 615; Dean 
 V. Berder, 15 Tex. 298. 
 
 ' Mills V. Oddy, 6 C. & P. 728 ; 
 Marstoa v. Downe.s, 1 Ad. & El. 31 ; 
 Doe V. Ross, 7 M. & W. 102. 
 
 * This rule applies in those cases 
 where it is desirable to prove the 
 appointment of public officers. The 
 law raises a sti-ong- presumption 
 from the undisturbed exercise of a 
 pul»lic oflSce, that the appointment 
 i.s valid, and, therefore, it is not 
 generally necessary to produce the 
 written appointment of public offi- 
 cers, btct it is sufficient to show that 
 they acted as such. Allen v. McNeel, 
 1 Mill (S. C.) Const. 459 ; Brewster «. 
 Sewell, 3 Br. Ala. 302; Bunbury v. 
 Matthews, 1 C.&K.3S2; Rex ?j. Verlst, 
 4 Camp. 432; Beriyman v. Wise, 4 
 T. R. 306; Rex v. Howard, 1 M. & 
 Rob. 187. Seepos^, § , Presump- 
 tions. 
 
 * Roberts v. Doxon, Peake, 83 ; 
 Meyer v. Lefton, 2 Starkie, 274. 
 
 * Butchers' Co. v. Jones, 1 Esp. 
 160 ; Miller v. Mariners' Church, 7 
 Me. 51 ; Rex v. Gesbum, 15 East, 
 57 ; Sewell v. Stubbs, 1 C. & P. 74 ; 
 Botham v. Swingler, 1 Esp. 164 ; 
 Carlisle v. Eady, 1 C. & P. 234. 
 
 Ralph V. Brown, 3 W. & S. (Penn.) 
 395; Burnham v. Wood, 8 N. H. 
 334; Waller v. Cralle, 8 B. Mon. 
 (Ky.) 11 ; Forrest v. Forrest, 6 Duer 
 (N. Y.), 102; Schaeffer v. Georgia 
 R. R. Co., 66 Ga. 39; Brown v. 
 Wood, 19 Mo. 475 ; Underwood v. 
 Lane, 1 Dev. (N. C.) D. 173. In 
 Topping V. Bickford,4 Allen (Mass.), 
 120, it was held that where the 
 books of a foreign corporation are 
 in another State, a party is not 
 bound to produce them, and that 
 depositions of its late officers were 
 admissible, although, in reply to 
 cross - interrogatories requesting 
 them to do so, they did not annex 
 the records of the company, or 
 copies of them, if they were not in 
 their custody. In a later case — 
 Binney v. Russell, 109 Mass. 55, 
 where a witness whose deposition 
 was taken out of the State refused 
 to annex an original document in 
 his possession to his deposition, but 
 did annex a copy of it which he 
 swore to be coi-rect, it was held that 
 the copy was admissible. See also 
 Amherst Bank v. Conkey, 4 Met. 
 (Mass.) 459. 
 • Emery v. Vinall, 26 Me. 295;
 
 16 
 
 EVIDENCE. 
 
 [chap. 
 
 isti-d,' luit also its due execution,^ genuineness,' and its loss or 
 de^tiuction, » without culpability on his part,^ but he must also 
 
 Piitt<in r. Rainl.o, LH) Ala. 48."); Sims 
 r. Sims, 5 Humph. (Tcnn.) 370; 
 Morrison v. Welty, 18 Md. 169; 
 Manson r. Blair, 15 Iml. 242; Ohio 
 Ins. Co. ?'. Nunemacher, 10 id. 234 ; 
 Perkins r. Ermel, 2 Kan. 325; 
 Hughes i\ Easten, 4 J. J. Mar. 
 (Ky.) 572; Marshall v. Harvy, 9 
 (iiil (M(l.), 251; Dunnock v. Dun- 
 nock, 3 Mrl. Ch. 140 ; Boynton v. 
 Rees, 8 Pick. (Mass.) 329; Benton 
 V. CraifT. 2 Mo. 198 ; Morrill V. Fos- 
 ter, 32 N. H. 358 ; Bozorth v. Da- 
 vidson, 3 N. J. L. (2 Penn.) 617; 
 Chambers v. Hunt, 22 N. J. L. 552 ; 
 Redman v. Green, 3 Ii-ed. (N. C.) 
 Eq. 54 ; BoNvman v. Smith, 1 Strobh. 
 (S. C.) 246; Moury v. Schroder, 4 
 id. 69 ; Ci-eed v. White, 11 Humph. 
 (Tenn.) 549; Langsford v. Smith, 
 12 Gratt. (Va.) 554; Ransdale v. 
 (irove, 4 McLean (U. S. C. C), 282; 
 Lewis V. Baij-d, 3 id. 56 ; Reynolds 
 V. Quattlebaune, 2 Rich. (S. C.) 140 ; 
 Hussey v. Roquemore, 27 Ala. 281 ; 
 Thalick v. Presley, 29 id. 427 ; Giif- 
 tith V. Huston, 7 J. J. Mar. (Ky.) 
 385 ; Spence v. Spence, 2 Brev. (S. 
 C.) 466; Gillespie v. Tucker, id. 
 433 ; United States v. Porter, 3 Day 
 (Conn.), 2S3; Norris V. Russell, 5 
 Cal. 249 ; Morgan v. Jones, 24 Ga. 
 155; Sloo V. Roberts, 7 Ind. 128. 
 
 ' Thompson v. Thompson, 9 Ind. 
 323 ; Lamerson v. Hoffman, 24 N. 
 J. L. 674 ; Culpepper v. Wheeler, 2 
 McMull (S. C), 66 ; Dean v. Pond, 
 1 N. J. L. 379 ; Hewes v. Wiswell, 
 8 Me. 94 ; Weatherhead v. Basker- 
 ville, 11 How. (U. S.) 329; Hanna 
 V. Price, 23 Ala. 826 ; Swift V. Fitz- 
 hugh, 9 Poi-t. (Ala.) 39 ; Downiing v. 
 Pickering, 15 N. H. 344 ; Stockdale 
 V. Young, 3 Strobh. (S.C.) .501 n; Ba.s- 
 kin 7'.Seechnst.P)Penn. St. 1 54: .Jack- 
 pon r.Wo..l ry, 11 Johns. (N. Y.)446. 
 • Jack /•.Wood.s29 Penn. St. 375; 
 
 V. Roberts, 17 id. 36 ; Embury v. 
 Millar, 1 A. K. Mar. (Ky.) 300; 
 Kimball v. Morrell, 4 Me. 368; 
 Goodier v. Lake, 1 Atk. 446 ; Doe 
 V. Whitefoot, 8 C. & P. 270 ; Jack- 
 son V. Frier, 16 Johns. (N. Y.) 196 ; 
 Rex V. Culpepper, Skin. 673. If the 
 paper was an attested instrument, 
 the attesting witness should be 
 called, or, in the event of his death, 
 or his whereabouts are unknown, 
 his handwriting should be proved 
 precisely in the same way as if the 
 deed or instrument had been pro- 
 duced. But if it cannot be ascer- 
 tained where the attesting witness 
 was, this strictness of proof will not 
 be required. Taylor on Ev. § 316. 
 ' Reynolds v. Jourdan, 6 Cal. 108 ; 
 Stowe V. Thomas, 12 Penn. St. 209 ; 
 McPherson v. Rathbone, 7 Wend. 
 (N. Y.) 216. 
 
 * Eakin v. Vance, 18 Miss. 149 ; 
 Morrill v. Foster, 32 N. H. 358 ; Carr 
 V. Carr, 36 Mo. 408; Thalick v. 
 Pressly, 29 Ala. 427. Or the ab- 
 sence of the writing must be ac- 
 counted for in a satisfactory manner. 
 Wiswallv. Knevals, 18 Ala. 65; Bald- 
 win V. Massie, 7 Wheat. 122 ; Bige- 
 low V. Young, 30 Ga. 121 ; Durham v. 
 Holeman, id. 019 ; Dermont v. Mc- 
 Kracken, 6 Blackf. (Ind.) 356 ; Per- 
 kins V. Bard, 16 La. An. 443 ; Marks 
 r. Winter, 19 id. 445 ; Young v. Mac- 
 kail, 3 Md. Ch. 398 ; Doe v. McCaleb, 
 3 Miss. 756 ; Brighton, &c., Bank v. 
 Philbrick, 40 N. H. 506 ; Sterling v. 
 Potts, 5 N. J. L. 773 ; Cary v. Camp- 
 bell, 10 John. (N. Y.) 363; Dumas 
 V. Powell, 3 Dev. (N. C.) L. 103 ; 
 Thompson v. Applewhite, 1 Dev. 
 (N. C.) Eq. 460 ; Caufman v. Con- 
 gregation, 6 Binn. (Penn.) 59 ; Daw- 
 son V. Graves, 4 Call (Va.), 127; 
 Brackett v. Evans,l Cush. (Mass.)79. 
 ^ Winona v. Hoff, 11 Minn. 119. 
 
 Atwell I'. LjTich, 39 Mo. 519 ; PeiTy Even where a paper is voluntarily
 
 SEC. 8.J BEST AND SECONDARY EVIDENCE. 17 
 
 repel every inference of fraudulent intent in its destruction, 
 or such evidence will be rejected. ^ He must prove its de- 
 struction positively, or presumptively by showing that it has 
 been thrown aside as useless, 2 or that its destruction was the 
 result of accident, or was without the agency or consent of the 
 party who seeks to show its contents. The ojjject of the rule 
 which re<iuires the production of the best evidence of which 
 the facts sought to be established are susceptible, is the preven- 
 tion of fraud ; for if a party is in possession of this evidence, 
 and withholds it, and seeks to substitute inferior evidence in 
 its place, the presumption naturally arises that the better 
 evidence is withheld for fraudulent purposes. Therefore, 
 when it appears that the best evidence has been voluntarily 
 and deliberately destroyed, the same presumption arises, and 
 unless met and overcome by a full explanation of the cir- 
 cumstances, it becomes conclusive of a fraudulent design, 
 and all secondary or inferior evidence is rejected. But if 
 the destruction was made upon an erroneous impression of 
 its effect, secondary evidence is admissible. The motive is 
 the controlling fact.' 
 
 Thus, parol evidence was offered to prove that the plaintiff 
 executed a discharge of the defendant from a certain claim, 
 and tendered it to him in the court room, by putting it in 
 his lap, and that he )n-ushed it, or it fell, upon the floor, and 
 
 destroyed by a party, he may, after that he believed the orig-inal was 
 
 proof of its destruction, give second- either destroyed or lost, having- been 
 
 ary evidence of its contents. People thrown aside as useless. It was held 
 
 V. Dennis, 4 Mich. 609 ; Downy v. sufficient to let in proof of loss. See 
 
 Logan, 12 B. Mon. (Ky.)38(5 ; Riggs also Kensington v. Ingles, 8 East, 
 
 V. Taylor, 9 Wheat. (U.S.) 483; 278 ; see also Smith ij. Holyoke, 112 
 
 Adams v. Guice, 30 Miss 397 ; Onie Mass. 517. Where in an action 
 
 V. Cook, 31 111. 233. the contents of certain letters writ- 
 
 ' Joannes v. Bennett, 5 Allen ten to her as the defendant became 
 
 (Mass.), 169 ; Blake v. Frost, 44 111. important as proof, and the plaintiff 
 
 102. It is for the court to determine having sworn that she having no 
 
 whether the paper was destroyed further use for them had destroyed 
 
 with a fraudulent intent. Smith v. them, the court held that the reason 
 
 Holyoke, 112 Mass. 517; Randolph given justified the judge in holding 
 
 V. Lane, 57 Ind. 115 ; Renna v. Bank that they were not destroyed with a 
 
 of Columbia, 9 Wheat. (U. S.) 581. fraudulent intent. 
 
 " Rex V. Johnston, 7 East, 69. In ' Bagley v. McMickle, 9 Cal. 430 ; 
 
 this case the pubfisher of a paper, see also Rex v. Johnston, ante. 
 in which a libel had appeared, stated 
 
 2
 
 18 EVIDENCE. [chap. I. 
 
 was not attciwiirds .seen. It was held that such evidence 
 wad admissible, the iustriimeut, under such circamstances, 
 bein^ considered a lost paper.' 
 
 A\'here the loss or destruction of the paper is probable, 
 very slight evidence of its loss or destruction will be 
 required, and a useless j)ci_per will be presumed to have been 
 destroyed.'^ 
 
 Sec. 9. Search, Sufficiency of. 
 
 Where the paper writing sought to be established by 
 secondary evidence should be in the custody of the part}' 
 seeking to sho\v its contents, or in the custody of some per- 
 son not a parly to the suit, within the jurisdiction of the 
 court, such evidence is not admissible unless the party 
 sutisties the court that he has used due diligence, and has 
 been unable to find it.^ He must establish its loss by proof 
 that he has made diligent but unavailing search for the paper 
 in places where it would be most likely to be found, and the 
 degree of diligence necessary to be shown must necessarily 
 depend upon the value and importance of the lost document 
 and the circumstances of each case.^ 
 
 Stoddard v. Mix, 14 Conn. 12. Mandeville ■?). Reynolds, (38 N. Y. 
 
 « Rex V. E. Farleigh, 6 D. & R. 528. 
 153; Freeman v. Arkell, 2 B. & C. * Spalding t). Bank of Susque- 
 
 496. The admission of the defend- hanna Co., 9 Penn. St. 28; "Witter 
 
 ant that he destroyed the paper, is v. Latham, 12 Conn. 399 ; Gully v. 
 
 sufficient. Rhode v. McLean, 101 Bishop of Exeter, 4 Bing. 298. In 
 
 111. 4(J7. Pardoe v. Price, 13 M. & W. 267, 
 
 ' Davis 1). Spooner, 3 Pick. (Mass.) where an assignment of turnpike 
 
 284 ; Poignand v. Smith, 8 id. 272. tolls had been executed by way of 
 
 The burden of showing the loss of mortgage to K, it was held, in an 
 
 a wiitten instrument is upon the action by K's i^ersonal representa- 
 
 pai-ty seeking to introduce second- tive, after his death, against the 
 
 ary evidence, and no in.strument can trustees for arrears of intei-est, that 
 
 be said to l)e lost until a careful a search for the security in the office 
 
 search has been made for it. Hau- of K's solicitor, where his papers 
 
 sen i\ American Ins. Co., 57 Iowa, had been deposited, except some 
 
 741. In the case of judgment rolls deposited in a suit against K's rep- 
 
 and other documents required to resentative, in the office of one of 
 
 be kept in the custody of certain the Masters in Chancery, and also 
 
 officers, if they cannot be found in in the latter office, without finding 
 
 the proper place, the presumption the security among any of such 
 
 ia that they are lost or destroyed, papers, was sufficient evidence of
 
 SEC. 9.] 
 
 BEST AND SECONDARY EVIDENCE. 
 
 19 
 
 The object of the proof is merely to estabhsh a presump- 
 tion of the loss of the papei-, therefore the party is not gen- 
 erally required to show that he has made such a search 
 as would be made for stolen goods, nor be in a position to 
 negative every possibility of its having been kept back, but 
 it is sufficient if he has, in srood faith, exhausted, in a reason- 
 
 its loss to let in secondary e\-i- 
 dence ; and that entries in a book 
 of the trustees, endorsed "Mortgage 
 Book," containing an abstract of the 
 names of the creditors, the amounts 
 of their securities, and the interest 
 due upon them, was good secondary 
 evidence of such security. Where 
 the party who had the custody of 
 the pajier swears that he has 
 searched " everywhere where it 
 could be expected to be found" 
 Pierce v. Wallace, 18 Cal. 165, or 
 that "it is not in his possession or 
 control " Prettyman v. Wallace, 34 
 111. 175, or "it is lost, I cannot tell 
 what has become of it" Voorhees 
 v. Dorr, 51 Barb. (N. Y.) 580, has 
 been held sufficient. Drake v. 
 Rainey, 3 Rich. (S. C.) 37 ; Poe v. 
 Darrah, 20 Ala. 288 ; Braintree v. 
 Battles, 6 Vt. 395 ; (Traff v. Pitts- 
 burgh R. R. Co., 31 Penn. St. 487. 
 Proof by the grantee in a deed that 
 he deposited it in the post-office 
 directed to another, who testifies 
 that he never received it, and 
 that inquiry has been made at the 
 office of deposit and delivery, and 
 to the general post-office, by let- 
 ter, -svithout finding the deed, has 
 been held sufficient. M'Rae v. 
 Pegues, 4 Ala. 158. So where the 
 plaintiff testified that he deposited 
 a postal card in the post-office, and 
 the defendant never received it, it 
 was held to constitute a sufficient 
 ground for letting in secondary evi- 
 dence of its contents without any 
 search for it. Vancil v, Hagler, 27 
 Kan. 407. What will constitute due 
 
 diligence in the search for public 
 records and documents, so as to 
 admit secondary evidence in proof 
 of their contents, will depend upon 
 the circumstances of each particular 
 case. Thus where more than 20 
 years have elapsed since the sale, 
 and the register of probate testifies 
 that he had made search of the 
 records in the case of N. S. ; that he 
 found but pai't of the papers in that 
 case ; that he found the files in veiy 
 bad condition, and some of them 
 broken open and loose ; and that 
 he examined the index of the 
 i-ecords for the year or two spoken 
 of, without finding the papers de- 
 sired or reference to the record 
 thereof in the index, the court will 
 admit parol evidence to s'low the 
 contents of such papers, especially 
 when the transaction occurred many 
 years before. Simpson v. Norton, 
 45 Me. 281. In Brewster v. Sewell, 
 3 B. & Aid. 303, Abbott, C. J., said : 
 "When the loss or destruction of 
 the paper may almost be presumed, 
 very slight evidence of its loss or 
 destruction is sufficient ; " and Best, 
 J., said : " If a paper be of consider- 
 able value, or if there be reason to 
 suspect that the party not producing 
 it has a strong interest which would 
 induce him to withhold it, a very 
 strict examination would probably 
 be required ; but if a paper be 
 utterly useless, and the party could 
 not have any interest in keeping it 
 back, a much less strict search 
 would be necessary to let in parol 
 evidence."
 
 20 
 
 EVIDENCE. 
 
 [CILA.P. I. 
 
 uble deo'rec, uU tlie sources of information and means of dis- 
 covi'iy Avhich the nature of the case ^vould naturally suggest,* 
 If llie instrument was an indenture, interchangeably signed 
 and sealed, or if it was executed in duplicate, and the part 
 l)cloniriug to the party seeking to use it, is lost, duo diligence 
 nnist be shown to ascertain whether any counterpart exists, 
 and if so, to obtain it to be used upon the trial.^ All the 
 l)r()i)er sources from Avhich primary evidence can be secured 
 nuist be first exhausted,^ and if there are several places of 
 
 » Folsom V. Scott, 6 Cal. 460 ; 
 M'Gahcy v. Alston, 2 M. & W. 214 ; 
 Hatch V. Carpenter, 9 Gray (Mass.), 
 271 ; Atherton v. Phoenix Ins. Co., 
 109 Mas?. ;}2 ; Tillotson v. "Warner, 
 3 Gray (Mass.), 574. It may be 
 stated as a general rule that a party 
 is not allowed to pi-oduce secondary 
 evidence until a bona file and dili- 
 gent search has been unsuccessfully 
 vuide for the lost instrument, in the 
 place where it was most likely to be 
 found. Meek v. Spencer, 8 Ind. 
 118; S. P. Cook V. Hunt, 24 111. 
 535 ; Holl)rook v. School Trustees, 
 28 111. 187 ; Dickerson v. Talbot, 14 
 B. Mon. (Ky.) 60; Sellers v. Car- 
 penter, 33 Me. 483 ; Kidder v. Blais- 
 dall, 45 Me. 4(51 ; Murray V. Bucha- 
 nan, 7 Blackf. (Ind.) 549; MuUikin 
 V. Boyce, 1 Gill (Md.), GO ; Glenn v. 
 Rogers, 3 Md. 312 ; Doe v. Mc- 
 Caleb, 3 Miss. 75U ; Barton V. 
 Munian, 27 Mo. 235 ; Jackson v. 
 Ha.sbrouck, 12 Johns. (N. Y.) 192; 
 Jackson v. Frier, 16 id. 192 ; Jack- 
 son V. Root, 18 id. 60 ; Poig-nand v. 
 Smith, 8 Pick. (Mass.) 272 ; Dan v. 
 Brown, 4 Cow. (X. Y.) 483 ; Jack- 
 son V. Betts, 6 id. 377 ; 9 id. 208 ; 
 Dreisbach v. Birger, 6 Watts & S. 
 (Penn.) 564; Parke v. Bird, 3 Pa. 
 St. 360 ; Vaulx v. Meriiwether, 2 
 Sneed (Tenn.), 683; Wade v. Work, 
 13 Tox. 4S2 ; Royalton v. Turnpike 
 Co., 14 Yt. 311 ; Fletchers. Jackson, 
 23 Yt. .^>,S1. 
 
 The following testimony of an at- 
 
 torney was held sufficient to war- 
 rant the introduction of secondary 
 evidence of the contents of a letter 
 sent to him by his client in the pre- 
 vious case : " I do not know where 
 that letter is. I have searched twice 
 during the past week for it among 
 my jiapers at my office and other 
 l^laces where I keep my paj^ers, but 
 have not been able to find it. My 
 impression is, that the letter lay 
 upon my table till after I had seen 
 the plaintiff at that trial, and then 
 went into the waste basket." On 
 cross-examination he testified: "I 
 did not look through all my files of 
 letters and papers, for when I came 
 across a file marked as of a jirevious 
 year, I did not search through it ; I 
 did not examine the papers I looked 
 over, one by one, and there were 
 places containing papers (but not 
 private pajiers) that I did not ex- 
 amine." Hatch t5. Carpenter, 9 Gray 
 (Mass.), 271. 
 
 » Poignand v. Smith, 8 Pick. 
 (Mass.) 272 ; Rex v. Castleton, 6 T. 
 R. 206 ; Mann v. Godbald, 3 Bing. 
 292. 
 
 « Rex V. Stokes, 1 B. & Aid. 373 ; 
 Hemphill v. McClimans, 24 Penn. 
 St. 3(57 ; Graff V. Pittsburgh R. R. 
 Co., 31 id. 489 ; Rush v. Whitney, 4 
 Mich. 495 ; Drake v. Rainey, 3 
 Rich. (S. C.)37; Lelandr. Cameron, 
 31 N. Y. 115. The deputy clerk of 
 a court testified that he had dili- 
 gently searched for a certain bill
 
 SEC. 9.] 
 
 BEST AND SECONDARY EVIDENCE. 
 
 21 
 
 deposit, all should l^e searched.' If the instrument ought 
 to have been deposited in a public office, it will generally 
 
 and answer in their proper place, 
 could not find them, and did not 
 "believe they were in the office, and 
 showed a receipt for them given by 
 S., a former attorney of the party 
 against whom they were sought to 
 be given in evidence. S. swore he 
 had delivered them to G., his suc- 
 cessor in the case now on trial, and 
 had just searched for them in his 
 own office and could not find them. 
 G. swore he had never seen or had 
 them. It was held that this was a 
 sufficient foundation for the intro- 
 duction of secondary evidence of 
 their contents. Cai-r ii. Miner, 42 
 111. 179. So the destruction of the 
 dwelling house of a party by fire 
 raises such a presumijtion of the 
 loss of papers as to let in parol evi- 
 dence of their contents. Harrison 
 V. Long, 4 Desau. (S. C.) 110. But 
 in such a case if any papers are 
 saved, it must appear that they 
 were also examined, for the paper 
 in question might be one of those 
 saved. Folsom v. Scott, C Cal. 4(50. 
 Where proof was made to the court 
 that the executor of the grantee had 
 searched for an orig-inal deed and 
 had not been able to find it ; that 
 after the grantee's death his son 
 had carried off to a place in the 
 country a trunk containing his 
 father's papers, which the executor 
 had not searched, but he had made 
 verbal application to him for the 
 trunk and the deed, it was held 
 that a copy was not admissible be- 
 cause the paper might be in the 
 trunk, which was not examined, and 
 no step had been taken to bring the 
 executor into court with a subpoena 
 duces tecum. Tannis v. St. Cyre, 21 
 Ala. 449. So where a bond given 
 to secure the claims of A. and divei-s 
 others, was traced into the hands of 
 
 A., and A. subsequently assigned all 
 his claims and demands to B. and C, 
 and search was made for the bond 
 among the papers of B. only, it was 
 held not to be such evidence of the 
 loss of the bond and a diligent search 
 for it as to justify the admission of 
 secondary evidence of its contents. 
 Kimball v. Bellows, 13 N. H. 58. 
 So where a subpoena duces tecum 
 was served three or four days be- 
 foi'e the trial, on a lessee, requiring 
 him to produce his lease, and he was 
 sworn as a witness, and stated that 
 he had not had time to search all 
 his papers to find the lease, but that 
 he had made some search in the 
 most probable places ; that he might 
 have destroyed it, but he did not 
 recollect to have done so ; that he 
 had not seen it for a year, etc., it 
 was held that the loss of the lease 
 was not sufficiently proved to au- 
 thorize the admission of parol evi- 
 dence of its contents. McNeely v. 
 Rucker, 6 Blackf. (Ind.) 391. In 
 Hagnett v. Eilis, 17 Mich. 351, it 
 was held eri-oneous to allow a party 
 claiming land under an execution 
 sale to give j^arol evidence of the 
 affidav-it and bond required to give 
 the court jui-isdiction, and other 
 papers filed in the case, after merely 
 showing l)y the justice who rendered 
 the judgment that he delivered the 
 docket, and, he believed, the files 
 also, to his successor ; that he had 
 looked for the files and could not 
 find them, and by his successor that 
 he was very certain he had not I'e- 
 ceived the files, but that he had not 
 searched for them. 
 
 ' Richards?). Lewis, 11 C. B. 1035 ; 
 Rex V. Morton, 4 M. & S. 48. But 
 where the paper was last seen in 
 the possession of a person who lives 
 in another State, and a diligent
 
 22 
 
 EVIDENCE. 
 
 [chap. I. 
 
 be siifficioiit to search for it there' But where it may 
 be ill eitiier of two or more places, all the places should be 
 
 search has been made for it in the 
 place where it ought to be if in the 
 State, secondary evidence of its con- 
 tents is achnisbible. Clifton v. Lilley, 
 12 Tex. 130. 
 
 ' Rex }'. Stourbridge, 8 B. & C. 
 96 ; M'Gahey v. Alston, 2 M. & W. 
 206 ; Farnley v. Worthington, 1 M. 
 & G. 491. When diligent searcth 
 has been made, unsuccessfully, for a 
 paper, by a person in whose hands 
 the law jiresumes it to be, it is in 
 judgment of law a lost paper, and 
 secondary evidence of its contents 
 is admissible. Bell v. Young, 1 
 Grant (Penn.) Cas. 175. 
 
 If a defendant, when aiaplied to 
 for a deed, denies having it in his 
 possession, and expresses his belief 
 that it is in the register's office, 
 where an ineffectual search is made 
 for it, and also in tbe office of a law- 
 yer, who once had it in his posses- 
 sion, a sufficient predicate is laid for 
 proof of the deed by a certified 
 copy, and no notice to the party, to 
 produce the deed, is necessary. 
 Shields V. Boyd, 15 Ala. 818. To 
 authorize secondaiy evidence of 
 the contents of an execution, issued 
 by a justice of the peace, it is suffi- 
 cient to show, by the justice, that 
 he cannot, after diligent search, find 
 it in his office, and has not seen it 
 since the last term of the circuit 
 court, when it went before the jury 
 as eviden(;e in another cause, ac- 
 companied by the testimony of the 
 circuit clerk that he has made dili- 
 gent but imsuccessful search for it 
 among the files of his office contain- 
 ing the trial paiiers of the last term. 
 Johnson v. Powell, 80 Ala. 113. 
 
 Where there is evidence that a 
 written bill of sale has been in the 
 possession of one or the other of 
 two persons, oral testimony as to its 
 
 contents is not admissible, without 
 first proving that both of them have 
 searched for it and been unable to 
 find if. Patterson v. Keystone, &c., 
 Co., 30 Cal. 360. And upon a ques- 
 tion of diligence, in the search for 
 written documents, so as to entitle 
 the party to introduce secondary 
 evidence, he must show that he has, 
 in good faith, exhausted all the 
 sources of information and means 
 of discovering which the nature of 
 the case would naturally suggest, 
 and which was accessible to him. 
 Ellis V. Smith, 10 Ga. 253. But if 
 a party, with whom a contract was 
 left for safe keeping, swears that he 
 has made diligent search for it, and 
 cannot find it among his papers, its 
 contents may be proved by parol. 
 Doyle V. Wiley, 15 111. 576. And 
 very much less diligence in search- 
 ing for a papei", before offering sec- 
 ondary evidence of its contents, will 
 be required when the paper in ques- 
 tion belongs to the adversary, than 
 when it belongs to the pai-ty offer- 
 ing the testimony. Desnoyer v. Mc- 
 Donald, 4 Minn. 515. 
 
 In Vermont, the court will not 
 pi-esume that a deed of lands hsis 
 been recorded, or require the party 
 to seai'ch the I'ecords, befoi'e i-etort- 
 ing to oral evidence of the contents 
 of the deed. If the opposite party, 
 in whose possession the deed is pre- 
 sumed to be, is out of the State, 
 notice to his counsel to produce the 
 original is sufficient to wai-rant the 
 introduction of secondary evidence 
 of its contents. Mattocks v. Steams, 
 9 Vt. 326. 
 
 In Beall v. Dealing, 7 Ala. 124, it 
 was held that an unsuccessful at- 
 tempt to take the deposition of a 
 non-resident, in whose possession a 
 deed was last known to be, to es-
 
 SEC. 
 
 10.] 
 
 BEST AND SECONDARY EVIDENCE. 
 
 23 
 
 searched, and if it may be in the cnstody of either of two or 
 more persons, inquiry shoukl be made of all of them.^ If 
 the person entitled to the custody of the paper is dead, 
 inquiries should be made of his personal representatives, and 
 if it relates to his real estate, of his heirs also.^ It is 
 not necessary that the search should have been recent, if, at 
 the time when it Avas made, it was thorough and diligent, 
 and, in one case,^ it Avas held sufficient, although made three 
 years before, although the court said it would have been 
 more satisfactory if the papers had been again examined ; and 
 in a Pennsylvania case ^ it was held that a search made more 
 than one year before the trial is not sufficient. 
 
 Sec. 10. When Paper is in Possession of the Adverse Party. Rule. 
 
 When any written instrument is in the possession or under 
 the control of the adverse party, secondary evidence cannot 
 be given of its contents, unless a reasonal)le notice is served 
 upon him, or his attorney, to produce it,^ and the party 
 neficlects or refuses to do so.^ • 
 
 tablish its existence, contents, and 
 loss, is equivalent to a demand of 
 the deed, and that where it was of 
 ancient date, and such as would not 
 probably be preserved a great 
 length of time, as a bill of sale of 
 slaves, such an attempt, and in(|uiry 
 of persons who were supposed to 
 know of it, was sufficient proof of 
 diligence to let in secondary evi- 
 dence. 
 
 ' Hall V. Bland, 3 M. & G. 247 ; 
 Cruise v. Clancy, 6 Ir. Eq. 552; 
 Ploxton V. Dare, 10 B. & C. 17, 
 Taylor on Ev. (1st ed.) 307. 
 
 " Rex V. Pidlehinton, 3 B. & A. 
 460. 
 
 » Fitz V. Rabbits, 2 M. & R. 60. 
 
 * Porter v. Wilson, 13 Penn. St. 
 541. 
 
 ' Webster v. Clark, 30 N. H. 245; 
 Reading R. R. Co. v. Johnson, 7 W. 
 &S. (Penn.) 317 ; Waring v. Warren, 
 
 1 John. (N. Y.) 340; Com. v. Parker, 
 
 2 Cush. (Mass.) 212 ; Dennis t). Bar- 
 
 ber, 6 S. & R. (Penn.) 420; Pond v. 
 Lockwood, 8 Ala. 667; Dean v. Bor- 
 den, 15 Tex. 298; Anderson Bridge 
 Co. 7). Applegate, 13 Ind. 339; Turn- 
 pike Co. V. Whiting, 10 Mass. 327 ; 
 Myer -«. Barker, 6 Binn. (Penn.) 
 228. 
 
 * Narragansett Bank v. Atlantic 
 Silk Co., 3 Met. (Mass.) 282; Loi-ing 
 V. Whittemore, 13 Gray (Mass.), 228; 
 Cooper V. Granberry, 33 Miss. 117 ; 
 Fraux v. Fraux, 2 N. J. L. 166; 
 Jackson v. Livingston, 7 Wend. (N. 
 Y ) 136; Sheldon v. Wood, 2 Bosw. 
 (N. Y.) 267; Faribaidt v. Ely, 2 
 Dev. (N. C.) L. 67; Sally ?». Geinter, 
 13 Rich. (S. C.) 72; Maxwell v. Light, 
 
 1 Call (Va.), 117 ; Riggs v. Taylor, 9 
 Wheat. (U. S.) 83; Bright v. Young, 
 15 Ala. 112; Rowley v. Doe, 6 Blackf. 
 (Lid.) 143; Smith v. Reed, 7 Ind. 242; 
 Greenough v. Shelden, 9 Iowa, 503 ; 
 McDowell •». Hall, 2 Bibb (Ky.), 610 ; 
 Bank of Kentucky v. McWilliams, 
 
 2 J. J. Marsh. (Ky.) 256; McQueen
 
 24 
 
 EVIDENCE. [CHAP. I. 
 
 The uotico to produce imist be served a reasonable time 
 Ijetbrc tlie trial, and the (inestion as to what is a reasonable 
 time will depend upon the circumstances of the case, the 
 distance at which the party lives from the place of trial, or 
 from the i)lace where the paper is kept, and his power to 
 produce it.' Tiius, where the party's counting-house was 
 near the court-house, notice to produce his books, given the 
 evening betore the trial, Avas held to be reasonable ;» and the 
 siime day, where the party lived near the court-house ;■' and 
 the day l)efore, even where the paper was in the possession 
 of a i)erson eighty miles away ; ' and several days before, 
 where the party lived out of the State ;^ and even on trial, 
 if the puix'r is in court ;« and generally the sufficiency of the 
 notice, both as to matter and the time, rests in the discretion 
 of the court in view of all the circumstances/ One notice 
 given in the same suit is good, although the action is not 
 tried for years afterwards,® and even upon a new trial of the 
 actiou.^ But a notice entitled in another cause to produce 
 books in evidence, merely filed in the present cause, without 
 proof of service, raises no inference against the party to 
 whom the notice is addressed.'" 
 
 The notice should be in writing," but, unless the statute or 
 rules of court otherwise provide, there is no reason why a 
 verbal notice is not sufficient.^- If the notice is in writing, it 
 
 V. Sandel, 15 La. Ann. 140 ; Lowell Y.) 199. But a notice given during 
 
 V. Flint, 20 Me. 401; Thayer v. Mid- the trialis not sufficient, if the paper 
 
 dlesex Mutual Insurance Co., 10 is not in court. Durkee v. Leland, 4 
 
 Pick. (Mass.) 326. Vt. 012 ; Barker v. Barker, 14 "Wis. 
 
 ' Shreve r. Dulaney, 1 Cr. (U. S. 131 ; Burtin v. Kane, 17 id. 37. 
 
 C. C.) 499 ; Hammond v. Hopping, ' Cummings V. McKinney, 5 111. 
 
 13 Wend. (N. Y.) 505; Jefford v. 57. 
 
 Rintrold, t) Ala. 544. * Gilmore t\ Wade, Anth. (N. Y.) 
 
 * Slirtne 11. Dulaney, ante. 64; Jackson v. Shearman, 6 John. 
 ' Buckner v. Mon-is, 2 J. J. Mar. (N.Y.) 19 ; Patten v. Goldsborough, 
 
 (Ky.) 121. 9 S. & R. (Penn.) 47. 
 
 * Cady r. Hough, 20 111. 43. » Hope v. Beadon, 17 Q. B. 209. 
 
 • Jefford r. Ringold, 6 Ala. 644. "» AUender v. Vestry of Trinity 
 
 • Board. Sir., 7\ Finnemore, 1 N. Church, 3 Gill (Md.), 166. 
 
 Y. L. 242; Atwell v. Miller, 6 Md. " Cummings v. McKinney, ante. 
 
 10; Brown v. Oshell, 11 Ala. 109; " Houseman tj. Roberts, 5 C. & P. 
 
 McPhei-son v. Rathbone, 7 Wend. 394 ; Cates v. Winter, 3 T. R. 306 ; 
 
 (N. Y.) 216; Anonymous, Anth. (N. Hughes V. Budd, 8 Dowl. 315.
 
 SEC. lO.J BEST AND SECONDARY EVIDENCE. 25 
 
 may be directed either to tiie party or his attorney, ' and may 
 be served ou either, or may be left with the attorney's clerk 
 at his oflSce, or at the dwelling-house of the party, in the 
 hands of his servant ;^ and if it is served on both, a bad ser- 
 vice upon one will not invalidate the notice to the other.* 
 The notice is sufficient if it specifies the })aper desired with 
 sufficient certainty to indicate what paper is meant.^ Thus, 
 notice was given to an attorney of the defendant to produce 
 on the trial a certain letter written by the plaintift' to the 
 defendant, concerning an execution which was produced on 
 a former trial in the same cause, "and all other papers in 
 your custody or power relating to the matter in controversy 
 in this cause." It was held that the notice was sufficiently 
 explicit to apprise the attorney that the execution was one 
 of the papers which he was called upon and expected to pro- 
 duce, especially when it was shown that on such former trial 
 the letter and execution had been produced })y the defend- 
 ant's attorney himself, and he must have known that it was 
 the principal paper wanted.^ A notice to produce "all 
 letters written by plaintiff to defendant relating to the mat- 
 ters in dispute in this action,"^ or "all letters written to, 
 and received by, plaintiff' between 1837 and 1841, both inclu- 
 sive, by and from the defendants, or either of them, and all 
 papers, etc., relating to the subject-matter of this cause," '^ has 
 been held sufficient to let in secondary evidence of a particular 
 letter not otherwise specified. So a notice to produce "all 
 accounts, papers and writings in any way relating to the 
 matters in question in this case " sufficiently particularizes a 
 written account of the work done by the plaintiff, delivered 
 to the defendant, and admitted by him to be correct.® And 
 
 * Brown v. Littlefield, 7 "Wend. 440 ; Walden v. Davison, 11 Wend. 
 (N. Y.) 454; Divers v. Foulton, 8 (N. Y.) 6.5. 
 
 G. & J. {M(l.)402; Logan t). Patter- * Walden v. Davison, 11 Wend, 
 
 son, 1 Blackf. (Ind.) 327. (N. Y.) 65. 
 
 '^ Doe V. Martin, 1 M. & R. 242 ; ^ Jacob v. Lee, 2 M. & Rob. 33, 
 
 Evans v. Swett, Ry. & M. 83. Patteson, J. 
 
 ' Hug-hes V. Budd, ante. ' Morris v. Hauser, id. 392, Lord 
 
 * Bogart V. Brown, 5 Pick. (Mass.) Dbxman, C. J. 
 
 18 ; Bemis v. Charles, 1 Met. (Mass.) * Rogers v. Custance, 2 M. & Rob. 
 
 179. •
 
 26 EVIDENCE. [chap. I. 
 
 ill a more recent case a notice to produce "all letters relat- 
 iiijr to your tenancy of a room, etc.," was held sufficient to 
 include a letter which, with the plaintitrs reply, constituted 
 the tenancy.' The notice must not, however, be too general, 
 as "all letters.'' ^ In an early English case^ it was held by 
 Best, C. J., that a notice to produce " all letters, papers and 
 (loiiiMUMils touching or concerning the bill of exchange men- 
 tioned in the declaration, and the bill sought to be recov- 
 ered," did not sufficiently describe a notice of dishonor sent 
 by the plaintiff to the defendant. But this decision is not 
 consistent with the more recent cases cited above. If the 
 title of the cause is misdescribed in the notice, it has been 
 hold bad.^ But in that case no title at all was necessary, 
 and there were other grounds of decision ; nor was there 
 in that case any ground for supposing that the misdescrip- 
 tion could mislead. In a later case, where the notice was 
 entitled in a wrong court, it was considered sufficient.* 
 Notice to produce a letter purporting to enclose an account 
 is sufficient notice to produce the account.® 
 
 It is generally not desirable to enter into a minute descrip- 
 tion of the paper or papers covered by the notice, because 
 if any material errors were to creep into the particulars the 
 party might urge with possible success that he had been 
 misled thereby. If enough is stated in the notice to induce 
 the party to believe that a particular instrument will be 
 called for, it is sufficient.^ 
 
 The question whether there is sufficient evidence that the 
 opposite party has the papers involved in the notice, where 
 they are not such as should be in his possession, is for the 
 court .^ 
 
 Sec. 11. When Notice to Produce, is unnecessary. 
 
 There are several instances in which, althouirh the writins: 
 is in the hands of the opposite party, no notice to produce 
 
 * Cnnybeare v. Fan-ies, L. R., 5 ' Lawrence v. Clark, 14 M. & W. 
 Exch. 16. 250. 
 
 » Gardner v. Wi-ight, 15 L. T., N. • Engall v. Druce, S W. R. 536. 
 
 8. 32.5 ; Jones v. Edwards, McCl. & ' Rogers v. distance, mite. 
 
 ^- 139- " Hei-vey v. Mitchell, 2 M. &. R. 
 
 * France r. Lucy, Ry. & M. 341. 366. 
 
 * Harvey v. Morgan, 2 Stai-k. 19.
 
 SEC. ll.J BEST AND SECONDARY EVIDENCE. 
 
 27 
 
 it is necessary, as a pi-climiiiary to letting in secondary evi- 
 dence of its contents. 
 
 These exceptions to the general rule are : 
 
 IsL W/ieie Ihe instrument is in the kernels of the adversary, 
 and that tendered injproofis eiUier a duplicate or counterparty 
 and the part offered tvas executed hy him or by some person 
 through whom he claims.^ 
 
 2d. Where the instrument to be proved is itself a notice,^ as 
 a notice to quit,^ of the dishonor of a bill,^ where the action 
 is brought upon the bill, but not otherwise.^ 
 
 3d. Where from the nature of the action^ or indictment, 
 the party must know that he will be charged with the posses- 
 sion of the instrument.^ 
 
 Thus ill an action of trover for the conversion of a bond,'' 
 or other writing,^ or in a prosecution for stealing a document 
 no notice to produce is necessary,^ and this is so even though 
 
 If two letters are wi'itten at the 
 same time to the same person, one 
 being the exact counterpart of the 
 other, one being sent to the person 
 addressed, and the other retained 
 by the writer, each is an original, 
 and the one retained may be put in 
 evidence by the party who retained 
 it, without notice to the opposite 
 party to xii'oduce the other. Hub- 
 bard V. Russell, 24 Barb. (N. Y.) 
 404. 
 
 ^ Notice to produce a notice, is 
 not requisite to let in evidence of its 
 contents. Atwell v. Cxrant, 11 Md. 
 101 ; Central Bank v. Allen, 16 Me. 
 41; Fairbault v. Ely, 2 Dev. (N. C.) 
 L. t)7; Eagle Bank p. Chajjin, 3 Pick. 
 (Mass.) ISO; Falkner v. Beers, 2 
 Doug.(Mich.) 117 ; Christy t). Home, 
 24 Mo. 242; Leavitt v. Simes, 3 N. 
 H. 14 ; MoiTOw v. Commonwealth, 
 48 Penn. St. 305 ; Kine v. Beaumont, 
 3 B. & B. 291. 
 
 = Jory V. Orchard, 2 B. & P. 41 ; 
 Calling V. Frederick, 6 B. & C. 398; 
 Doe V. Somerton, 7 Q. B. 58 ; Phil- 
 lipson V. Chase, 2 Camp. 111. 
 
 * Swain v. Lewis, 26 M. & R. 261; 
 
 Kine v. Beaumont, mite; Auckland 
 V. Pearce, 2 Camp. 601. The cases 
 overrule Langdon v. Hulls, 5 Esp. 
 156, and Shaw v. Markham, Peake, 
 165. 
 
 ^ Lanauze v. Palmer, M. & M. 31. 
 
 * Reliance Lumber Go. v. Western 
 Union Tel. Co., 58 Tex. 394; 44 Am. 
 Rep. 622; State v. Mayberry, 48 
 Me. 218 ; Keller v. Savage, 20 Me. 
 199 ; Rose v. Lewis, 10 Mich. 483 ; 
 Hart V. Robinet, 5 Mo. 11 ; Neally 
 V. Greenough, 25 N. H. (5 Fost.) 
 325 ; Hammond v. Hopping, 13 
 Wend. (N. Y.) 505; Hardin v. Kret- 
 singer, 17 Johns. (N. Y.) 293 ; Ed- 
 wards V. Bonneau, 1 Sandf (N. Y.) 
 610 ; Forward v. Hai-ris, 30 Barb. 
 (N. Y.) 338; Pickering v. Myers, 2 
 Bailey (S.C), 113; Hamilton v. Rice, 
 15 Tex. 382 ; Dean v. Border, 15 id. 
 299. 
 
 ' Hays V. Riddle, 1 Sandf. (N. 
 Y.) 248. 
 
 " Calling V. Frederick, ante. 
 
 " Rex V. Aickles, 1 Lea. 297 n; Rex 
 V. Brennan, 3 Cr. & Dix. 109 ; Com. 
 !■). Messinger, 1 Binn. (Penn.) 373.
 
 28 EVIDENCE. [ciIAr. I. 
 
 the defcntlaut oflcrs to produce the document.' In uu action 
 for damages for not delivering u telegram this rule was 
 ai)plii(l,- as also in an action of assumpsit against a carrier 
 for the non-delivery of written instruments.^ 
 
 A(h. In odinni spoliator is, notice need not be given to the 
 opposite party to produce a jnqyer of ivhich he has fraudu- 
 lently or forcibly obtained possession.'^ 
 
 bth. Where the party or his attorney has admitted the loss 
 of the pajjer,^ because in such case the notice would be 
 nuixatory. 
 
 But the party cannot excuse himself from giving notice 
 by introducing evidence to show tiie destruction of a docu- 
 ment which has been traced into the possession of his* adver- 
 sary, l)ecause the document may still be in existence, and 
 his opponent may in any event dispute the fact of its 
 destruction.^ 
 
 Sec. 12. Efifect of Notice to Produce Papers. 
 
 rupers are not made evidence by a notice calling for their 
 production, and the party calling for them may afterwards 
 waive their production.'^ Nor does it become evidence for 
 the other party, unless from its legal character it is entitled 
 to be used iis such ;^ and it must be proved by the person 
 who offers it in like manner as if he himself had produced it. 
 But if the person producing it is a party to the instrument, 
 or claims a beneficial interest imder it, it la jm ma facie io be 
 taken to Ije duly executed, and may be read without proof 
 
 ' Whiteheatl v. Scott, 1 M. & Rob. ary evidence of its contents without 
 
 2. previously giving a special notice 
 
 * Reliance Lumber Co. v. Westera to the defendant to produce it. Dana 
 Union Tel. Co., ajite. See Western v. Conant, BO Vt. 246. 
 
 Union Tel. Co. v. Hopkins, 49 Md. * Doe V. Ries, 7 Bing-. 724 ; Leeds 
 
 327, contra ; but the question does v. Cook, 4 Esp. 2.^0. 
 
 not seem to have been much con- ^ How v. Hall, 14 East, 276 ; Rex 
 
 sidered by the court. v. Haworth, 4 C. & P. 254 ; Doe v. 
 
 * Jolly V. Taylor, 1 Camp. 143. Spitty, 3 B. & Ad. 182 ; Foster v. 
 Under this rule it has been held that Pointer, 9 C. & P. 718. 
 
 if an action la brought upon a writ- * Doe v. Mori-is, 3 Ad. & El. 46. 
 ten contrafjt, which is fully described ' Blight v. Ashley, 1 Pet. (U. S.) 
 
 in the declaration, and the contract 573 ; Sayer v. Kitchen, 1 Esp. 210. 
 is in the pos-session of the defendant, * Hylton v. Brown, 1 Wash. (U. 
 
 the plaintiff may introduce second- S.) 343 ; Sayer v. Kitchen, ante.
 
 SEC. 12.j BEST AND SECONDARY EVIDENCE. 
 
 29 
 
 of its execution.' The refusal of a party to produce books 
 or papers, upon notice given, does not warrant the presump- 
 tion that, if produced, they would show the facts to be as 
 alleged by the party giving the notice. The only eflect of such 
 refusal is, that parol evidence of their contents may be given ; 
 and if such secondary evidence is imperfect, vague, and un- 
 certain as to dates, sums, etc., every intendment and pre- 
 suitiption shall be against the party who might remove all 
 doubt by producing the higher evidence. Some general evi- 
 dence of such parts of their contents as are applicable to the 
 case must first be given before any foundation is laid for any 
 inference or intendment on account of their non-production.^ 
 The refusal of a party to produce papers, upon notice, as 
 well as the failure of the party giving the notice to use them, 
 if produced, is a matter for observation to the jury f and if 
 
 * Rhoades v. Lelin, 4 Wash. (U. 
 S.) 715 ; Betts v. Badger, 12 Johns. 
 (N. Y.) 223; Jackson v. Kingsley, 
 17 id. 157. 
 
 " Life and Fire Ins. Co. v. Me- 
 chanics' Ins. Co., 7 Wend. (N. Y.) 31 ; 
 see also Hanson v. Eustace, 2 How. 
 (U.*S.) 653 ; Jewell v. Center, 25 Ala. 
 498; Hunt v. Collins, 4 Iowa, 56; 
 Spring Garden Mut. Ins. Co. v. Ev- 
 ans, 9 Md. 1. Though, where a 
 party has in his possession a deed 
 or other instruiBent necessary to 
 support his title, and he refuses to 
 produce it, and attempts to make 
 out his title by other evidence, such 
 refusal i-aises a sti-ong presumption 
 that the legitimate evidence would 
 operate against him, yet this rule is 
 not applicable to such documents as 
 he has no right to give in evidence 
 without the consent of the advei-se 
 party, the only effect of the refusal, 
 in such case, being to authorize the 
 adverse party to give secondary 
 evidence of the contents of the doc- 
 uments \vithheld. Merwin v. Ward, 
 15 Conn. 377. When a party re- 
 fuses to produce books and papers 
 which are shown to be in his pos- 
 
 session, his opponent may give sec- 
 ondary or pai'ol proof of their con- 
 tents ; and if such secondary evi- 
 dence is imperfect, vague, and 
 uncertain as to dates, sums, boun- 
 dai'ies, etc., every intendment and 
 presumption shall be against the 
 pai'ty in possession of the higher 
 evidence, and i-efusing to laroduce 
 it. Rector v. Rector, 8 111. -105 ; 
 Shortz V. Unangst, 3 Watts & S. 
 (Penn.) 45. Of course, in order to 
 make secondary evidence admis- 
 sible because of a failure to produce 
 a writing, it must be shown that the 
 writing is actually in his custody, or 
 at least is one of which he is entitled 
 to the custody. Thus, notice to the 
 opposite party to produce a fi. fa. 
 is not foundation sufficient to admit 
 a copy in evidence. Bell v. Chand- 
 ler, 23 Ga. 356. 
 
 3 Bate V. Kinney, 1 C, M. & R. 
 41 ; see Sayer v. Kitchen, 1 Esp. 
 235, as to failure of party giving 
 notice to use the papei-s when pro- 
 duced ; and see also Wilson v. Bow- 
 er, 1 C. & P. 10 ; Wharam v. Rout- 
 ledge, 5 Esp. 235.
 
 30 EVIDENCE. [chap. I. 
 
 the papers arc shown to be in the possession or sul)ject to 
 the control of the party upon whom the notice is served, the 
 faihnc to jiroduce them will warrant the court in instructing 
 the jury that they may, from such failure, presume that the 
 papers or books, if produced, would operate unfavorably to 
 his cause.' Notice to produce a paper will not entitle the 
 person jxiving it to cross-examine a w'ituess as to its contents,^ 
 except after refusal to produce.* If the party refuses to pro- 
 duce the paper for the use of the party giving the notice, he 
 cannot afterwards use the original either to contradict the 
 secondary evidence,^ or to show that there are attesting wit- 
 nesses who ought to be called,^ or to refresh the memory of 
 witnesses,^ or, it seems, for any purpose,"'' but is in effect 
 bound l)y any legal and satisfiictory evidence given on the 
 other side relating thereto,^ unless he has some sufficient and 
 satisfactory excuse for not complying with the notice. 
 
 In order to render a notice operative to let in secondary 
 evidence, it must be shown that the original instrument is in 
 the hands of the opposite party or of those in privity with 
 him. The nature of this evidence must vary according 
 to the nature of the instrument, and where it belongs 
 exclusively to the party, slight evidence will suffice.^ If Hie 
 instrument has been delivered to a third person, in privity 
 
 ' Clifton V. United States, 4 How. made to any document, to produce 
 
 (U. S.) 242. such document for the inspection of 
 
 " Graham v. Dyster, 2 Stark. 23. the party gi\'ing such notice, or of 
 
 ' Id. his solicitor, and to permit him or 
 
 * Thompson v. Hodgdon, 12 Ad. them to take copies thereof; and 
 & El. 135. any party not complying with such 
 
 * Edmonds V. Challis, 7 C. B. 413; notice shall not afterwards be at 
 Jackson v. Allen, 3 Stark. 74. liberty to put any such document 
 
 " Till V. Ainsworth, Wilde, C. J., in evidence on his behalf in such 
 
 lf*Sf., Bristol, 1874. action or proceeding, unless he shall 
 
 ' Collins V. Garbon, 2 F. & F. 47. satisfy the court that such docu- 
 
 ■ But now in England, by Rules ment relates only to his own title, 
 
 O XXXI and 14, it is provided that he being a defendant to the action, 
 
 " every party to an action or other or that he had some other sufficient 
 
 proceeding shall be entitled, at any cause for not complying with such 
 
 time before or at the hearing there- notice." Rules 15, 16 regulate the 
 
 of, by notice in writing, to give no- procedure under this rule, 
 ttce to any other party, in whose » Henry v. Leigh, 3 Camp. 502. 
 pleadings or affidavits reference is
 
 SEC. 13. J BEST AND SECONDARY EVIDENCE. 31 
 
 with the party, notice to the latter is sufficient, ^ as also is 
 notice to his attorney.^ Notice to a party to produce a 
 check, or a note which has been paid, which is in the hands 
 of his banker, is sufficient,^ or to produce papers belonging 
 to him which are in the hands of his attorney ;^ and the same 
 rule prevails when, although the paper is in the hands of a 
 third person, it is subject to the control of the party, but not 
 when the third person has a lien thereon, or from any cause 
 the party is not entitled to its possession. 
 
 If, at the time the notice was served, the paper was in the 
 hands of the party, he cannot afterwards get rid of it so as to 
 avoid the effect of the notice.^ But if the plaintiff becomes 
 nonsuited in the action after the service of the notice and after 
 the nonsuit, the party assigns the paper to a third person, 
 and upon a second trial the plaintiff again serves notice upon 
 him to produce the paper, secondary evidence of its contents 
 will not be admissible ;^ and the same has been held where, 
 before notice was served, the paper was delivered to a third 
 person, under whom the defendant justified in an action of 
 trespass, and that a subpoena cZwces tecum to such third person 
 was necessary 
 
 - 7 
 
 Sec. 13. How the Contents of Writings may be proved. 
 
 It is said that, as a general rule, there are no degrees in 
 secondary evidence,® and that upon proof of the loss or 
 destruction of a writing, or upon the failure of the opposite 
 party to produce it upon notice, the contents of the writing 
 may be proved even by parol, ^ and the party is not bound 
 to show that no copy of the writing exists. But he nnist 
 produce satisfactory evidence of the contents of the writing, 
 
 • Baldneyi). Ritchie, 1 Stark. 338. ' Granger v. Warrington, 8 111. 
 
 • Taplin v. Atley, 3 Bing. 164 ; 299 ; Jackson v. CuUam, 2 Blackf. 
 Suter V. Burrell, 2 H, & N. 867. (Ind.) 288 ; Young v. Buckingham, 
 
 " Partridge v. Coates, Ry. & M. 5 Ohio, 485 ; Gore v. Elwell, 22 Me. 
 
 156. 442 ; Clark v. Trindle, 52 Penn. St. 
 
 « Irwin v. Lever, 2 F. & F. 295. 492 ; Thayer v. Stearns, 1 Pick. 
 
 • Knight V. Martin, Gow. 104 ; Sin- (Mass.) 109 ; Denton v. Hill, 4 Hayw. 
 Clair V. Stevenson, 1 C. & P. 585. (Tenn.) 73 ; Smallr. Pennell, 31 Me. 
 
 • Knight V. Martin, ante. 267 ; Sandera v. Sanders, 24 Ind. 
 » Evans ■». Sweet, Ry. & M. 183. 133 ; Jones v. Fayles, 5 Mass. 101. 
 
 • Cai-penter v. Dame, 10 Ind. 125. 
 
 I
 
 32 EVIDENCE. [CIIAP. I. 
 
 and there can be no question but that a well authenticated 
 copy is the most satisfactory substittito for the original docu- 
 ment. Bnt no copy whatever is admissible, unless its accu- 
 racy is sworn to, or there is some presumption attached 
 to it from which its accuracy may be presumed, ' as is the 
 case in reference to a very old instrument purporting to 
 Ije a copy or abstract of a conveyance,'* when it can be 
 traced to the custody of some grantee of the lands, 
 l)ul not where they come from a custody unconnected 
 with tile lands.3 A copy of a letter taken by a copying 
 machine, ah hough still only a copy, will be presumed 
 to be correct."* And such, also, is the rule as to entries made 
 by a deceased clerk in a letter Iwok, when it is shown that in 
 the course of business, letters relating to the business of the 
 l)laintiff were copied in the letter book by such clerk.^ The 
 rule allowing the production of copies or parol evidence 
 where the original is lost or destroyed, or is in the possession 
 of the opposite party, who, ui)on notice, neglects to produce it, 
 applies to all classes of insrumcnts, as records of judgments,* 
 executions.''' wills,^ account books,^ writs or other process,'*^ 
 bonds" and other specialties,'^ contracts or agreements, '^ 
 
 ' Fisher v. Sarauda, 1 Camp. 190. ders, 24 Ind. 133 ; Small v. Pennell, 
 
 » Price V. Woodhouse, 3 Exch. 31 Me. 267 ; Lane's Will, 2 Dana 
 
 616; Butler's N. P. 2.54 ; Bulling (Ky.), IOC; Clark V. Trindle, 52 
 
 Michel, 2 Price, 309 ; Williams v Penn. St. 492 ; Farmers' Bank v. 
 
 Wilcox, 8 Ad. & El. 314. Gibson, 6 id. 51 ; Young ■«. Bucking- 
 
 « Potts V. Diirant, 3 Anst. 789 , ham, 5 Ohio, 485. 
 
 Paddock V. Whitcomb, G Exch. GOl. ' Ellis v. Huff, 29 111. 449. 
 
 * lla<liii i\ .Murray, 3 Camp. 228 ; ® Lane's Will, ante; Smith -y. Car- 
 Simpson V. Thorneton, 1 F. & F. ter, 3 Rand. (Va.) 1G9. 
 
 452. In Sturge v. Buchanan, 10 * Keaton v. Davis, 18 Ga. 457 n. 
 
 Ad. & El. 598, it was held that a >» Fowler v. Moore, 4 Ark. 570 ; 
 
 letter book containing copies of let- Brown v. Richmond, 28 Vt. 583 ; 
 
 terg which the defendant wrote to a Allen v. State, 21 Ga. 217 ; Derret 
 
 third pei-son, consented to admit v. Alexander, 25 Ala. 2G5 ; Bartlett 
 
 under a notice to produce the let- u Hunt, 17 Wis. 214; Com. -y. Raank, 
 
 ters, would be presumed to contain 8 Cush. (Mass.) 210. 
 
 true copies of the lettci-s. " Stakes V. Prescott, 4 B. Mon. 
 
 * Pritt V. Fairclough, 3 Camp (Ky.) 37. 
 
 305 ; Hagedom v. Reed, 3 id. 377. " Kelly V. Riggs, 2 Ratt. (Conn.) 
 
 'Jacls-rn 7". Ci/dam, 2 IjiaCKf. 12G. 
 
 (Ind.) 2:>; Pruden v. Allen, 23 " Gwattney v. Wheeler, 26 Ind. 
 
 Pick. (M;;ss.) 184 ; Sanders v. San- 415; Morrison t). Chapin, 97 Mass. 72.
 
 SEC. 13.] BEST AND SECONDARY EVIDENCE. 33 
 
 deeds,' pateiits,^ or indeed any instrument in writing which 
 has been lost or destroyed, ^ or as to parts of such instruments 
 which have been mutikited so as to be illegible.'^ 
 
 There are four classes of copies which may be used to 
 prove the contents of documents, and their value as such 
 proof is in the order in which they are given : Exernjplijied, 
 Office, Certified and Examined. Exemplified copies are 
 those Avhieh are attested under the great seal, or under the 
 seal of the court in which the record is preserved. 
 
 An office copy is a copy made by the officer having the 
 custody of the document in the same court, and in the like 
 cause, and is equivalent to the original document of which 
 it is a copy.^ In this country, however, "office copies" 
 include all certified copies made by officers, whether of 
 courts or otherwise, who by law are made certifying officers, 
 and copies, made by whom, and certified, are made admis- 
 sible in evidence. In other words, "office copies" include 
 "certified copies." 
 
 A certified copy is a copy made by an officer having the 
 custody of a document or of a record, and certified by him 
 to be correct. Where the statute makes such person a 
 certifying officer, and provides that copies certified by him 
 shall be evidence, such copies, in degree, stand next to the 
 original instrument. 
 
 An examined co\)y is a copy of an instrument, verified 
 by the oath of a witness who has compared it with the 
 original, word for word and line for line, and swears that 
 it is correct.^ The copy must be exact, and must uot cou- 
 
 ' In McBurney tJ. Cutler, 18 Barb, is evidence proper to go to a jury, 
 
 (N. Y.) 203, it was held that, to and is sufficient to authorize them, 
 
 prove the execution of an alleged if the testimony is believed, to find 
 
 lost deed, it is not necessary to prove that the instrument was under seal, 
 
 by a witness that he remembered * Long v. Davis, 4 Mich. 140. 
 
 having seen a seal on it ; the fact * Adams v. Guice, 30 Miss. 397 ; 
 
 might be shown by other and cir- People v. Dennis, 4 Mich. 609j Orm 
 
 cumstantial evidence; and evidence V. Cook, 31 111. 283. 
 
 that the instrument was executed, * Fullis v. Griffith, Wright (Ohio), 
 
 and intended, and purported to con- 303. 
 
 vey lands, and in connection with it, * Lucas v. Fulford, 2 Burr. 1179. 
 
 evidence of the declarations of the * Reid v. Margison, 1 Camp. 469. 
 grantor that he had conveyed lands, 
 
 3
 
 34 EVIDENCE. [chap. I. 
 
 tain abbreviations \vliich arc not in the original,' and some 
 evidence must be given to show that it was copied from the 
 original,'- as a copy of a copy is never admissible,'* except in 
 those instances whore the cojjy from which the copy is made 
 possesses the essential elements of the original, as, a copy 
 from a certified copy made )>y a certifying officer,'* or from 
 a })ress copy of a letter,^ because in the latter instance the 
 signature is in the handwriting of the person writing it, thus 
 making it possible to authenticate the genuineness of the 
 instrument from which the second copy was made. 
 
 For instances in which copies are admissible, and what 
 kind of copies must be used, and how proved, see chap. — , 
 ^'Documentary Evidenced 
 
 ' Rex tJ. Christian, C. & M. 388. liner, 2 Cush. (Mass.) 494, nor to one 
 
 * Adamthwayte v. Syrn, 4 Camp, sworn to be correctly made from a 
 
 372. press cojjy of a letter Goodrich v. 
 
 ' BrowTi V. Warren, &c., R. R. Co., Weston, 102 Mass. 3(32. 
 
 5 Gray (Mass.), 35. But this rule * Stetson v. GuUiner, ante. 
 
 does not apply to a certified copy ' Goodrich v. Weston, ante. 
 
 of a recorded deed Stetson v. Gul-
 
 CHAPTER 11. 
 
 PAROL EVIDENCE, RULES RELATING TO. 
 
 SECTION. 
 
 14. General Rule. 
 
 15. Latent Ambiguities, what are, rule as to. 
 
 16. Rule when Ambiguity is raised by Extrinsic Proof. 
 
 17. Declarations of Testator as to his Intention to explain Am- 
 
 biguity admissible, when. 
 
 18. Where Evidence of the Situation of the Property, etc., is ad- 
 
 missible. 
 
 19. Rule where Ambiguity is Patent. 
 
 20. Rule where Ambiguity relates to Application of the Writing 
 
 to the Subject-matter. 
 
 21. General Rules as. to Patent Ambiguities. 
 
 22. Parol Evidence to explain Writings. 
 
 23. Rule as to Independent Contracts where the Writing is e\d- 
 
 dently incomplete. 
 
 24. Receipts. 
 
 25. Rule as to Admission of Parol Evidence relating to Surround- 
 
 ing Circumstances. 
 
 26. Parol Evidence to prove Collateral Matters. 
 
 27. To show Fraud, Illegality, Duress, etc. 
 
 28. Failure of Consideration. 
 
 29. Mistake in Instrument. 
 
 30. To show a Waiver, Alteration, or a Discharge of the Contract. 
 
 31. Not admissible to show Warranty. 
 
 32. To show that Writing, apparently absolute, is not. 
 
 33. When Independent Contract is entered into as an Inducement 
 
 to the Execution of the Principal Contract. 
 
 34. Several Writings may be looked at to determine the Real 
 
 Contract and Intention of the Parties. 
 
 35 Judicial Records. 
 
 36. Assignments. 
 
 37. Bills of Lading. 
 
 38. Bills of Sale. 
 
 39. Leases. 
 
 40. Parol Evidence of Usage, admissible when. 
 
 41. Qualities of a binding Usage. 
 
 42. Need not necessarily be general. 
 
 43. Must be established by Instance of its Application. 
 
 44. General Usage, how established. 
 
 45. Illustrations of the Application of the Rules. 
 
 46. Mere Conflict of Evidence as to, does not defeat. 
 
 47. EflFect of Local Usage.
 
 3G EVIDENCE. [CIIAP. lU 
 
 SECTION. 
 
 •IS. What Usages are valid. Illustrations. 
 
 •lit. Usage ai« a Means of ascertaining the Meaning of "Words and 
 
 Phrases. 
 r)0. Rule when Words have a well-defined Meaning. 
 
 51. Usage may add Incidents to a Contract. Illustrations. 
 
 52. Ride when Ambiguity is created by Parol Proof. 
 
 Sec. 14. General Rule. 
 
 It is u gcncnil rule, so well settled uiid so universal in its 
 applicution, that, in the absence of any latent ambiguity 
 therein, jKirol evidence is not admissible to explain, vary or 
 contradict a loritten instruinent, ^hat it might seem ahnost 
 superfluous to state it here.' This is a rule of the common 
 law, but the Statute of Frauds also requires that certain con- 
 tracts shall be in writing, and thus, by implication, excludes 
 all evidence relating to contracts which are not in writing.^ 
 So, too, in other cases, it is the duty of certain officers to 
 record, in a manner more or less solemn, what is said or 
 done, as in the case of records of courts of law, or 'deposi- 
 tions taken l)efore magistrates in criminal cases. How far 
 such authentic memorials are conclusive is not very well 
 settled, l)ut they are certainly so in some cases. It is obvious 
 that evidence might frequently be o))jected to as infrijiging 
 more than one of these rules, and, Avhere several objections 
 might 1)e good it is not always easy to see which of the two, 
 in a given case, forms the ratio decidendo. 
 
 So, too, it may be said that, although the principles upon 
 which the admissibility of evidence depends would appear 
 
 ' Albert v. Zeigler, 29 Penn. St. Oregon, 251 ; Lenhard v. Vischer, 2 
 
 50 ; Khankland v. Washington, 5 Cal. 37 ; Richardson v. Comstock, 21 
 
 Pet. (U. S.) 390; Peter v. Grover, Ark. 69; Grundy v. Edwards, 7 J. 
 
 20 Mo. 363 ; Wade v. Odeneal, 3 J. Mar. (Ky.) 67 ; Robinson v. Mo- 
 
 Dev. (N. C.) L. 423; Warren v. gandy, 28 111. 423 ; Beckley ij. Mun- 
 
 Crew, 22 Iowa, 315; Huffman v. son, 22 Conn. 299; West v. Kelly, 
 
 Hannuer, 17 N. J. Eq. 269 ; Fergu- 19 Ala. 353 ; Gooch v. Cannon, 8 
 
 eon V. Glaze, 12 La. An. 667 ; Hern- Mo. 391 ; Tits v. Brown, 20 N. H. 
 
 don V. Hendei-son, 41 Miss. 584 ; 393 ; Hall v. Adams, 1 Hill (N. Y.), 
 
 Smith V. Higbee, 12 Vt. 113; Irwin 601. 
 
 «. Ivers, 7 Ind. 308 ; Wynn v. Cox, * Northrup v. Jackson, 13 Wend. 
 
 5 Ga. 373; Young v. Frost, 5 Gill (N. Y.) 85; Lecroy v. Wiggins, 31 
 
 (Md.), 287; Smith v. McCall, 1 Mc- Ala. 13; Lackett v. Lobey, 10 La. 
 
 Cord (8. C), 220; Reed v. Jones, An. 713; Martin v. Duffey, 4 Phil. 
 
 8 Wis. 392; Hoxie v. Hodges, 1 (Penn.) 75.
 
 SEC. 15.] PAROL EVIDENCE, RULES RELATING TO. 37 
 
 to be geiicrul as regards all written instruments, they have 
 not been applied in a precisely similar manner to all classes of 
 cases. But perhaps this may be partly explained by the 
 circumstances that, inasmuch as the question is, whether the 
 written memorandum hy its terms excludes oral evidence, the 
 admissibility of the latter is in all cases, to a certain extent, 
 and in some exclusivel}^, a question of interpretation of the 
 written document. And inasmuch as, in analogy to the use 
 of technical terms, language acquires a conventional mean- 
 ing, such groups of cases as have been mentioned, arise. In 
 fact there are tv^o questions of interpretation to be solved 
 whenever oral evidence is ol)jected to on the ground that it 
 contradicts a Avritten instrument : 
 
 First, Tlie interp-etation of the contract as it stands ; and 
 SECOND, the inter])retation of the clause which it is jyrojposed 
 to insert by icay of addition or explanation, for that is really 
 what is done, and this explains how it is that the same ques- 
 tion as that which is raised upon the admissibility of evidence 
 is sometimes raised iq)on demurrer. Under a system of law 
 like ours, in which there are scarcely any canons of interpre- 
 tation, and where contracts are loosely drawn, a decision as 
 to the meaning of one contract is rarely an authority as to 
 the meaning of another. 
 
 Bearing these remarks in mind, it will be found that the 
 apparent conflict between many of the cases can be recon- 
 ciled. 
 
 Sec. 15. Latent Ambigiiities, ■what are, rule as to. 
 
 Under the general rule as stated supra, it follows as a 
 matter of course, that, whenever there is a complete v^ritten 
 agreement all previous conversations and verbal agreements of 
 the parties are merged therein, and cannot be shown to alter 
 or vary the writing' or to show the intention of the par- 
 
 1 Smith V. Hig-bee, 12 Vt. 113 ; French v. Turner, 15 Ind. 59 ; Wal- 
 
 Cole V. Spann, 13 Ala. 537 ; Hern- ker v. Eng-ler, 30 Mo. 130 ; Mead v. 
 
 don V. Henderson, 41 Miss. 584; Steger, 5 Poi-t. (Ala.) 498; Cox v. 
 
 Vaug-hn V. Lynn, 9 Md. 870 ; Dean Bennett, 13 N. Y. L. 165 ; Logan v. 
 
 V. Mason, 4 Conn. 428 ; Chadwick Bond, 13 Ga. 192 ; Downie v. "White, 
 
 V. Perkins, 8 Me. 399 ; Crosier v. 12 Wis. 176 ; Stevens v. Coojier, 1 
 
 Acor, 7 Paige (N. Y.) Ch. 137; John. (N. Y.) Ch. 425; Caldwell 
 
 I
 
 i;^ EVIDENCE. [CIIAP. II. 
 
 tics,' except when tlicrc is a hUent tun)>iguity in the contract.^ 
 As where a word is used in a contract which the court is unable 
 to construe without expUuiation, it is proper to admit evidence 
 oi the peculiar use and meaning which the word has acquired 
 by usage in a particular business to which the contract 
 relates, or in the locality in which it is used;^ as, to show 
 
 V. May, 1 Stew. (Ala.) 425; Gelp- 
 I'ke x\ Blake, 15 Iowa, 387 ; Cin- 
 cinnati, &c., R. R. Co. V. Peavcr, 
 28 Ind. 502 ; Walker v. Englei-, 30 
 Mo. 130. A contract which the 
 jiarties inteiultd to but did not make, 
 cannot be sho\vn in place of the one 
 which they did make, Sanford v. 
 Howard, 29 Ala. 684; Glendale 
 Woolen Co. v. Protection Ins. Co., 
 21 Conn. 19 ; nor can a verbal agree- 
 ment liittering trom a written one, 
 •■ntej-ed into before or at the time 
 the written agi-eement was executed, 
 be given in evi<lence to supersede 
 or vary the written contract in any 
 of its terms, Cincinnati, &c., R. R. 
 Co. V. Pearce, 28 Ind. 502 ; Gelpcke 
 ?). Blake, 15 Iowa, 387 ; Jack v. 
 Nabei-, 15 id. 450 ; Downie v. White, 
 12 Wis. 176 ; nor can evidence of a 
 party's admission be shown to vary 
 a wi-itten contract, Fitz v. Browni, 20 
 N. H. 393 ; Hale v. Handy, 36 id. 
 206 ; nor can the acts of parties be 
 proved to show what construction 
 they placed upon an ambiguous 
 contract, Giles v. Comstock, 4 N. Y. 
 270 ; the wi-iting itself, in such 
 cases, is the exclusive evidence of 
 the intention of th(! parties. Miller 
 V. Fitchorn, 31 Penn. St. 252. 
 
 ' Pullen V. Le Roy, 10 Bos. (N. 
 Y.) 38; Bedford v. Flowers, 11 
 Humph. (Tenn.) 242; Ellmaker v. 
 Franklin Ins. Co., 5 Penn. St. 183; 
 Pilmer v. Branch State Bank, 16 
 Iowa, 321. 
 
 ' Gallagher v. Black, 44 Me. 99. 
 In order to properly understand the 
 application of this i-ule, it should be 
 understood that there are two kinds 
 
 of ambiguities — Latent and Patent. 
 A latent ambiguity is one which 
 does not ajji^ear ujjon the face of the 
 instrument, but arises from an aj:)- 
 plication of the instrument to the 
 subject-matter of the contract, or 
 whei-e it may be ai)plied to either 
 of two persons or things, or may be 
 construed in either of two ways. A 
 patent ambiguity is one which ap- 
 pears upon the face of the instru- 
 ment, and, from a mere perusal, 
 shows that something is omitted 
 which must be added before it 
 can be ascertained what is meant. 
 Parol evidence is admissible to ex- 
 plain latent ambiguity. McNair 
 V. Sales, 5 Minn. 435 ; Hartwell 
 V. Canman, 10 N. J. Eq. 128; 
 Hall V. Davis, 36 N. H. 569 ; Wil- 
 son f?. Robertson, 7 J. J. Mar. (Ky.) 
 78 ; Patrick v. Grant, 14 Me. 233 ; 
 Sliuetze V. Bailey, 40 Mo. 69 ; Spears 
 V. Ward, 48 Ind. .541 ; Clark v. 
 Hart, 49 Ala. 86 ; Wilson v. True, 
 36 Cal. 606 ; Mastens v. Freeman, 
 17 Ohio St. 373 ; Crawford v. Brady, 
 35 Ga. 184 ; Hotchkiss v. Barnes, 
 34 Conn. 27 ; Doyle v. Estoniet, 13 
 La. An. 318. But not to explain a 
 2)atent ambiguity. Panton v. Tefft, 
 22 111. 366 ; Mithoff v. Bryne, 20 
 La. An. 363 ; Rawyer v. Martin, 6 
 Rand. (Va.) 525 ; Morris v. Edwards, 
 1 Ohio, 184. 
 
 ^ Cowles V. Garrett, 30 Ala. 341 ; 
 Barron 7). Placide, 7 La. An. 229 ; 
 Hart V. Hammett, 18 Vt. 127 ; Hul- 
 bert V. Cowen, 37 Bai-b. (N. Y.) 62 ; 
 Ganson v. Madigan, 15 Wis. 144; 
 Colwell ?). Lawrence, 24 How. Pr. 
 (N. Y.) 324; Smith v. Clayton, 29
 
 SEC. 15.] PAROL EVIDENCE, RULES RELATING TO. 
 
 39 
 
 what is meant by the words "good merchantable shipping 
 hay,"' "good custom cowhide boots,"* or "a farm," or a 
 " homestead farm " in a lease, ^ or that a right to " deepen a 
 ditch" includes the right to widen it,^ or the "usual and 
 customary method of engaging and paying a fishing crew," 
 to establish the kind of voyage contemplated,^ to show what 
 particular word an abbreviation was intended to represent,^ 
 to show what is meant by the word " team" in a contract,''^ 
 or by "damages of the river" in a bill of lading,^ or the 
 number of hours regarded as a " day's work" in a particu- 
 lar trade, ^ or that contracts of certain description, by the cus- 
 tom of a particular business, are regarded as bonds,'" or the 
 meaning of the word "currency" when used in a note or 
 contract,'' the words "on margin "in a broker's contract 
 
 N. J. L. 357 ; Locke v. Rowell, 47 
 N. H. 46; Fitch v. Carpenter, 43 
 Barb. (N. Y.) 35; Stone v. Brad- 
 bury, 14 Me. 185 ; Myers •?). Walker, 
 
 24 111. 133 ; Williams v. Wood, 16 
 Md. 220; Wayt v. Fairbanks, 1 
 Brayt. (Vt.) 77; Hite v. State, 9 
 Yerg. (Tenn.) 357 ; Brown v. Brooks, 
 
 25 Penn. St. 210 ; Stewart v. Smith, 
 28 111. 397. The rule that courts 
 are to give construction to contracts 
 is frequently departed from, where 
 the contracts relate to the scientific 
 or mechanic ai'ts, or contain words 
 of a technical or local signification. 
 In such cases, it is common and 
 prudent to admit the opinions of 
 experts, to explain the contract. 
 Reynolds v. Jourdan, 6 Cal. 108 ; 
 Myers v. Walker, 24 111. 133 ; Galena 
 Ins. Co. V. Kupfer, 28 111. 332; 
 Prather v. Ross, 17 Ind. 495 ; Taylor 
 V. Sototingo, 6 La. An. 154 ; Broad- 
 well V. Broadwell, 1 Gill (Md.), 599 ; 
 Williams v. Woods, 16 Md. 220 ; 
 Smith V. Clayton, 29 N. J. L. 357 ; 
 Stroud f). Frith, 11 Barb. (N. Y.) 
 300 ; Hulbert v. Cawer, 37 id. 62 ; 
 Colwell V. Lawrence, 24 How. (N. 
 Y.) P. 324 f Brown v. Brooks, 25 
 Penn. St. 210 ; Gary z. Bright, 58 
 id. 70 ; Harb v. Hammett, 18 Vt. 
 
 127. While parol evidence, to show 
 that the parties to an instrument 
 placed upon a certain word oi' phrase 
 a meaning controlling the whole 
 effect of an instrument, is not ad- 
 missible, yet such evidence to show 
 the scientific as well as poi:)ular 
 meanings of such words, is admis- 
 sible. Hartwell v. Camman, 10 N. 
 J. Eq. 128. 
 
 ' Fitch V. Carpenter, 43 Barb. 
 (N. Y.) 40. 
 
 ^ Wait V. Fairbanks, a7ite. 
 
 '' Locke V. Rowell, 47 N. H. 46. 
 
 * Collins V. Driscoll, 34 Conn. 43. 
 
 " Eldridge v. Smith, 13 Allen 
 (Mass.), 140. 
 
 « Hite V. State, 9 Yerg. (Tenn.) 
 357. 
 
 ' Gansant). Madigan, 15 Wis. 144. 
 
 ^ Sampson v. Gazzam, 6 Port. 
 (Ala.) 123. 
 
 9 Barnes v. Ingalls, 39 Ala. 193. 
 In this case among "photogra- 
 phers." See also Hinton v. Locke, 5 
 Hill (N. Y.), 437, in the case of car- 
 penters, and also as to extra pay for 
 more hours' work. 
 
 '" Stone V. Bradbury, 14 Me. 185. 
 
 " Pilmer v. State Bank, 16 Iowa, 
 321. But not what is meant by 
 " current funds." Osgood v. Mc-
 
 40 EVIDENCE. [(HAP. II. 
 
 relating to the sale or purchase of stock.' So, where a tanner 
 contracted in writing to sell '-his wool" to a certain person 
 at a certain price, it was held that evidence was admissible 
 to prove that "his wool'' meant the wool in his possession 
 bouirht by him of other farmers as well as wool of his own 
 growth, but wjis not admissible to prove that only a limited 
 quantity of such wool was intended to be bought.^ In this 
 case, evidence of previous conversations between the parties 
 was admitted to show that the phiintifi' had some wool of his 
 own clip, and some which he had purchased, which he was 
 ollcring for sale. The object of the evidence was to show 
 in what sense the defendant used the term "my wool," by 
 showing by their previous negotiations that, at the time the 
 ofl'er Ijy letter was made, he did not refer to the wool from 
 the plaintiff's clip merely, but to all the seller had on hand. 
 Lord Campbell said : " There cannot be the slightest objec- 
 tion to the admission of evidence of previous conversations, 
 which neither alters nor adds to the written contract, but 
 merely enables us to ascertain what was the subject-matter 
 referred to therein." In a Vermont case-^ there was a sale 
 of "winter-strained lamp oil" equal to a sample exhibited. 
 The evidence disclosed that there were two kinds of oil of 
 the kind sold, one s})erm oil, the other v:Jiale oil, the latter 
 of which was inferior in qualit}. The court held that evi- 
 dence was admissible to show that in conversation at the time 
 the contract was made this was explained, to the i)urchaser, 
 
 Connell, 32 III. 74 ; Ehle v. Chitten- ness, and who knew from expen- 
 
 ango Bank, 24 N. Y. 548 ; Marc v. ence and observation the meaning 
 
 Kupper, 34 111. 287. attached to the words to prove their 
 
 ' Hatch V. Douglass, 48 Conn. 116 ; meaning. The defendant objected, 
 
 40 Am. Rep. 154. In this case the but the court admitted the evidence, 
 
 defendant wi'ote the iilaintiff: "I and, we thiid^., properly. Nelson v. 
 
 want to buy, say one hundred Sun Mutual Ins. Co., 71 N. Y. 453. 
 
 shares of Union Pacific stock on It was in the nature of a technical 
 
 margin." Carpenter, J., said: ■phrase, ih^i meaning of which must 
 
 "What does that mean? Those be undei-stood before the court 
 
 unacquainted with the business could know what the contract be- 
 
 would not understand its meaning tween the jiarties really was." 
 from the language. It is not to be " Macdonald v. Longbottom, 1 E. 
 
 presumed that the court undei*stood & E. 987 ; see also Buxton v. Rust, 
 
 it. The i>laintiff produced witnesses L. R., 7 Exch. 280. 
 who were familiar with the busi- ^ Hart v. Hammett, 18 Vt. 127.
 
 SEC. 15.] PAROL EVIDENCE, RULES RELATING TO. 41 
 
 iiud that he was then informed that it was not sjjenn oil he 
 was buying. In an Ahibania case,' during the Rebelhon, a 
 contract was entered into to pay " dollars," and parol evi- 
 dence was held to be admissible to show the circumstances 
 under which the contract was made, and that in fiict, at that 
 time and place, the only " dollars" in use were Confederate 
 dollars. But the doctrine of this case is very questionable, 
 and it is not believed that the courts would bo inclined to 
 follow it. It does not come within the principle of the other 
 cases cited, and it ciunot be said that the evidence created 
 any latent ambiguity. A contract to pay "dollars" is a 
 contract to pay law fid money, and evidence is never admis- 
 sible to show that it was intended as a contract to pay 
 money of a particular kind or quality ; and the rule adopted 
 in the case cited Avould overturn the whole law of contracts, 
 and place it within the power of a party to completely nul- 
 lify his contract by showing thiit it was really a contract to 
 pay in a worthless currency. So, in construing a written 
 contract of service under which A. was "to enter into the 
 enqjloy " of B., or A. was " to give the whole of his services 
 to B.," it was held that parol evidence was admissible to show 
 in what capacity A, was to serve,^ and this, even though the 
 Statute of Frauds required a written contract."^ *The object 
 and eifect of such evidence is not to alter or vary the mean- 
 ing of the contract, but rather to develop and ascertain the 
 meaning of the term by ascertaining the sense in which the 
 parties intended to use it. Thus, in a contract for stone at 
 a certain price " per perch," it being doubtful whether 16| 
 or 25 feet constituted a perch, and the evidence being con- 
 flicting, in order to ascertain the intention of the parties, the 
 defendant was permitted to show that the word "perch" 
 was not used by either of the parties, but that they verbally 
 agreed upon 18 cents per cubic foot as the price of the stone, 
 and that the attorney employed to reduce the contract to 
 writing, of his own motion, and without instructions from 
 
 • Thorington v. Smith, 8 Wall. N. S. 305 ; Price v. Mount, 11 id. 
 (U. S.) 1. 50S. 
 
 ' Mumford & Gething-, 7 C. B. ' Chadw-ick v. Burnley, 12 W. R. 
 
 1077.
 
 42 
 
 EVIDENCE. 
 
 [chap. II. 
 
 oilher party, made the change from feet to perch, and the 
 price from 18 cents per foot to $4.50 per perch, this bemg 
 the rate if 25 feet is a perch ; but if IG^ feet is a perch, the 
 rate would be 27 cents per foot.' And generally it may be 
 said that j;«ro? evidence is admissible to identify and apply 
 the subject-matter of the contract,^ but not where the writing 
 
 ' Quarry ii. Clements, 38 Ohio St. 
 587. 
 
 « Miller v. Stevens, 100 Mass. 518 ; 
 Caulkinsi). Hellman,14Hun (N.Y.), 
 330; Sweet v. Shuniway, 102 Mass. 
 357 ; Bateman v. Phillips, 15 East, 
 272 ; Shortred v. Check, 1 Ad. & El. 
 57 ; Stoops V. Smith, 100 Mass. 63 ; 
 Gerrish v. Towne, 3 Gray (Mass.), 
 82 ; Sargent v. Adams, 3 id. 72. It 
 is •well settled that parol evidence 
 is always admissible for the purpose 
 of applying- a written instrument to 
 its i>roper subject-matter. Bennett 
 V. Pierce, 28 Conn. 315 ; Noonan v. 
 Lee, 2 Black (U. S.), 499 ; Myers v. 
 Lai Id, 26 111. 415 ; Gary ij. Thomson, 
 1 Daly (N. Y.), 35; Almg-ren v. 
 Dutilh, 5 N. Y. 28 ; Mayor v. Butler, 
 1 Barb. (N. Y.) 325; Waters v. 
 Simmons, 7 Jones (N. C.) L. 541; 
 Hildebrand v. Togle, 20 Ohio, 147; 
 Morgan v. Spangler, 14 Ohio St. 102 ; 
 Barnhart V. Riddle, 23 Penn. St. 93 ; 
 Aldridge v. I'^shleman, 40 id. 420; 
 Gould V. Lee, 55 i(L 99 ; Ames v. St. 
 Paul, &c., R. R.-Co., 12 Minn. 412. 
 Thus, upon the trial of an indict- 
 ment for the defendant's neglect of 
 duty as ovei-seer of the Cane Hill 
 road, it was held to be error to ex- 
 clude parol evidence offered to show 
 that the Cane Hill i-oad was the same 
 established by the county court, un- 
 der a different description. State v. 
 Hapgood, 23 Ark. 553. So, where a 
 tract of land is described differently 
 in different instruments, it may be 
 shown by parol that the different 
 descrijDtions refer to the same ti-act, 
 the rule being that extrinsic evi- 
 dence may properly be resorted to, 
 
 in order to show the usage of a 
 business, or the use and natui-e of 
 certain kinds of property, viewed 
 with reference to its application, or 
 the interests to which it may be 
 subservient. Stewart v. Chadwick, 
 8 Iowa, 463. So parol evidence 
 has been held admissible to explain 
 a written agreement between a 
 canal company and fb farmer, so 
 far as to give identity to the sub- 
 ject-matter of the contract, and to 
 apply it, Bartsch v. Lehigh Co., 4 
 Rawle (Penn.), 130; to identify a 
 tract described in a conveyance, 
 Hughes V. Sandal, 25 Tex. 162 ; to 
 identify the articles meant to be 
 conveyed by a bill of sale conclud- 
 ing with the words: "meaning all 
 the farming tools, etc., now owned 
 by him, and on said farm," Rugg 
 V. Hale, 40 Vt. 138; to identify 
 mortgaged wood from other wood 
 lulled upon the same lot, Sargeant 
 V. Solbei'g, 22 Wis. 132 ; see also 
 Brooks V. Aldrich, 17 N. H. 443 ; to 
 i<lentify the particular animals in- 
 tended, iinder a written contract 
 for the sale of a certain number of 
 hogs, Marshall v. Gridley, 46 111. 
 247 ; to show the identical monu- 
 ment refei'red to in a deed, Afferty 
 V. Connover, 7 Ohio St. 99 ; to iden- 
 tify a note secured by mortgage 
 other than its correspondence with 
 the description given of it in the con- 
 dition of the mortgage, Melvin v. 
 Fellows, 33 N. H. 401 ; to show what 
 parcel of land fits all jiarts of a deed 
 or other instrument. Doe v. Roe, 
 20 Ga. 689 ; to identify the subject- 
 matter of a recorded note of a cor-
 
 SEC. 15.] PAROL EVIDENCE, RULES RELATING TO, 
 
 43 
 
 distinctly defines tlie i)roperty so as to admit of its being 
 applied thereto without the aid of such proof.' So such 
 evidence is admissible to identify the parties to an instru- 
 ment or record, as where there arc two persons hy the same 
 name, to show which was intended ;- or to show that the 
 payee of notes is not the real party in interest, as that a con- 
 tract made by A. in his own name, was made as the agent 
 of B.;3 or that goods purchased in his own name were pur- 
 chased on joint account ;J or who is the payee in a promise 
 to pay for a charitable purpose j^ or that a gift, although 
 jointly to husband and wife, was intended to operate only as 
 a gift to the wife ;« to show that the parties in a former 
 suit are the same as the one on trial ;^ or to show the identity 
 of the parties in one record with those of another.^ So to 
 show, under a guaranty to "J. II., President," that J. H. is, 
 or Avas when the writing was executed, the president only of a 
 certain Ixink, and the guaranty will then enure to that bank.* 
 And, generally, where there is sufhcient, on the face of nego- 
 tiable paper, to create a doubt to whom the credit was given, 
 then, as between the original parties, parol evidence is admis- 
 sible to remove that doubt. Thus, a signature "A. B., cap- 
 tjiin," on a bill of exchange, not clearly importing a liability 
 of the agent or of the principal, parol evidence by the 
 plaintiff is admissible, the contract being unsealed, to show 
 that it was intended to bind the owner, the principal, and 
 that he had authorized the captain to bind him in that forni."^ 
 So an administration which would be deemed prima facie 
 to be granted upon the estate of a father, may be shown to 
 
 poration, Pope v. Machias, &c., Co., 
 52 Me. 535. 
 
 ' Pike V. Fay, 101 Mass. 134 ; 
 Hart V. Hammett, 18 Vt. 127; Hill 
 V. Rowe, 11 Met. (Mass.) 268. 
 
 * State V. Weare, 38 N. H. 314 ; 
 Sawyer v. Boyle, 21 Tex. 28 ; Walker 
 V. Wells, 25 Ga. 141; Simons v. 
 Marshall, 3 Greene (Iowa), 502; 
 Tug-gle V. McMath, 38 Ga. 648. 
 
 ' Lernedw. Johns, 9 Allen (Mass.), 
 419 ; Oelrichs v. Ford, 21 Md. 489 ; 
 
 Westhaltz v. Retaud, 18 La. An. 
 245. 
 
 * Scott V. McKinney, 98 Mass. 
 344. 
 
 * Hopkins v. Upshur, 20 Tex. 89. 
 ' Dunham v. Chatham, 21 Tex. 
 
 231. 
 
 ' Shirley v. Fearne, 33 Miss. 653. 
 
 * Garwood v. Gai-wood, 29 Cal. 
 514. 
 
 ' State Bank v. Peck, 28 Vt. 200. 
 " May V. Hewitt, 33 Ala. 161.
 
 44 EVIDENCE. [CilAr. II. 
 
 be granted upon the estate of the son, the names of the two 
 bcin<'- the same.' Where a certiticate of deposit is taken by 
 a guardian in his own name, parol evidence is admissible, on 
 a settlement of his accounts, to show that the money deposited 
 belonired to the ward, and the certificate is admissible to 
 prove the investment.^ In an action of ejectment, where 
 the plaintilf claimed under a grant from the State to Elias 
 Nicks and by a grant to himself from Eli Nicks, parol evi- 
 dence was held admissible to show the identity of the person 
 variously named. ^ So where the name of the vendee in the 
 body of the act of sale was omitted, the notary and one of 
 the witnesses to the act were offered to prove that H. T. W., 
 whose name was sul)scribed, together with that of the 
 vendor, was the purchaser, it was held that the omission 
 could be supplied by such parol evidence* The addition 
 to the name signed to a contract, of the official character of 
 the person so signing, is such an indication of the repre- 
 sentative character of such signer, as will warrant a resort to 
 parol evidence to prove extrinsic circumstances, such as, to 
 whom the consideration passed and credit was given, the 
 agent's authority, etc., by which the respective liability of 
 the principal and agent may be determined.^ 
 
 This species of evidence does not impugn the general rule, 
 because it does not alter or vary the terms of the contract, but 
 merely explains that portion of it which is still in doubt,*' and 
 enables the court to apply it, according to the real intent of the 
 parties. The circumstance that the language used in a contract, 
 which is susceptil)le of either of two constructions, was under- 
 stood in one sense by one of the parties, and in another sense 
 by the other, does not change the rule. In such a case, the 
 sense in which the word is used in that class of contracts, 
 or in view of the circumstances attending the transaction, 
 
 * Moseley v. Mastin, 37 Ala. 210. In Graham v. Hamilton, 5 Ired. (N. 
 " Beasley v. Watson, 41 Ala. 234. C.) L. 428, it was held that when a 
 ' Henderson v. Hackney, 23 Ga. writing is deficient in punctuation, 
 
 383. and its sense may be varied as the 
 
 * Beauvais v. Wall, 14 La. An. punctuation ia one way or another, 
 199. extrinsic evidence may be intro- 
 
 * Smith V. Alexander, 31 Mo. 103. duced to explain its meaning-. 
 
 * Gallagher v. Black, 44 Me. 99.
 
 SEC. 15. J PAROL EVIDENCE, RULES RELATING TO. 45 
 
 must prevail. Thus, iii a Connecticut case ' before cited, in 
 which the defendant wrote tlie plaintiff: " I want to buy, 
 say one hundred shares Union Pacific on margin," it was 
 said that the parties did not understand the phrase alike, the 
 defendant supposing that he risked nothing, while the plain- 
 tiff understood that he assiniied a personal liability as well. 
 " The language," said Carpenter, J., "is that of the defend- 
 ant. He used a phrase peculiar to the plaintiff's business, 
 knowing that they would understand its meaning as used in 
 that business. In such case, if the parties did not under- 
 stand it alike, it must be interpreted in the sense in which 
 the plaintiff understood it. If the defendant chooses to use 
 a technical term which has a clearly defined and well under- 
 stood meaning in the business to which it relates, and the 
 plaintiff, giving it that meaning, act upon it, he cannot be 
 permitted, to the prejudice of the plaintilf, to say that he 
 used it in a different sense. He left it to be interpreted by 
 usage, and by that interpretation he is concluded." 
 
 But it must be remembered that where words used in a 
 contract have a well defined meaning^ and are not used in a 
 technical sense, proof of a meaning acquired by them in a 
 certain trade by usage is not admissible to put upon them 
 a different meaning.^ Thus it has been held, that where a 
 bond is made joayable in "current money of Philadelphia," 
 parol evidence is not admissible to show that it was intended 
 to be paid in specie,-' or the meaning of the words " more or 
 less " in a contract, because, in the absence of any general or 
 special usage giving to them a different signification, the 
 words have a definite meaning, and oral proof is not admis- 
 sible to show that the parties intended to use them in a differ- 
 ent sense. 
 
 Where the terms of a ivritten Qontract are not perspicuous, 
 but are susceptible of two ineanings, parol evidence is 
 admissible to ascertain the intention of the parties,^ 
 
 * Hatch -y. Douglass, 48 Conn. 116 ; = Bond n. Hans, 2 Dall. (U. S.) 
 
 40 Am. Rep. 154. 133. 
 
 ^ Smith V). Battams, 26 L. J. * Hueske v. Broussard, 55 Tex. 
 
 Exch. 32; Parkinson v. Collier, 201; Mason -y. Ryas, 26 Kan. 464; 
 
 Park on Ins. 416. Knick v. Knick, 75 Va. 12.
 
 46 EVIDENCE. [chap. II. 
 
 aiul to Unit end it is, us we have seen, competent to 
 show that the words used have by usage acquired a peculiar 
 moaning dili'erent from their ordinary sense, and also the 
 circumstances attending the transaction and the situation 
 and admissions of the parties for tlie purpose of ascer- 
 taining the sense in which they intended the language 
 used.' Thus, where on the face of the writing it is doubt- 
 ful whether a guaranty- is continuing, or limited to a single 
 transaction, evidence of the circumstances under which the 
 guaranty was given, the nature of the business in which the 
 credit was to be used, the situation and relation of all the 
 parties, and their previous dealings aiid negotiations which 
 led to the giving of the guaranty, may be shown to enable 
 the court to ascertain the true intent and meaning of the 
 parties.'^ So, too, where a bill is drawn by a corporation, 
 addressed to its treasurer as an individual, and accepted by 
 him with the addition of treasurer, etc., a sufficient ambiguity 
 is therel)y raised as to whether his acceptance was designed 
 to be individual, or in his official capacit}^ to let in parol 
 evidence to show the fact.' 
 
 Sec. 16. Rule when Ambiguity is raised by Extrinsic Proof. 
 
 Where an amoiguity, not apparent on the face of a writ- 
 ten instrument, is raised ])y the introduction of oral evidence, 
 the same description of evidence is admitted to explain it ; 
 for example, where a testator devises his estates of Black- 
 acre, and has two estates called Blackacre, evidence may be 
 admitted to show which of the Blackacres was meant ; or if 
 one devises to his son John Thomas, and he has two sons of 
 the name of John Thomas, evidence may be admitted to 
 show which the testator intended.* And where the descrip- 
 
 ' Mason v. Ryas, 26 Kan. 464 ; = Lafflin, &c., Powder Co. v. Sins- 
 
 Knick V. Knick, a?ite ; Hueske v. heimer, 48 Md. 411 ; 30 Am. Rep. 
 
 Brou.ssard, a7ite. 472 ; Bradlee v. Boston Glass Co., 16 
 
 " White's Banki). Meyers, 73 N. Pick. (Mass.) 347; Haile v. Pierce, 
 
 Y. 335 ; 29 Am. Rep. 157 ; Heffield 32 Md. 330. 
 
 u Meadows, L. R., 4 C. P. 595. See * Per Gibbs, C. J.. Doe v. Chi- 
 
 also S. P. Bridger v. Pierson, 45 N. Chester, 4 Dow. 93 ; Doe d. Morgan 
 
 Y. 601 ; Field v. Munson, 47 id. v. Morgan, 1 Cr. & M. 235 ; Goddard 
 
 223 ; Page v. McDonnell, 55 id. 299 ; v. Bulaw, 1 Nott. & McC. (S, C. ) 45 ; 
 
 Knapp V. Warner, 57 id. 668. Breeding v. Taylor, 13 B. Mon. (Ky . )
 
 SEC. 16.] PAROL EVIDENCE, RULES RELATING TO. 47 
 
 tioii of the devisee, or thing devised, is true in part, but not 
 true in every particular, oral evidence is admissible to show 
 the person or thing intended, provided there be enough on 
 the face of the will to justify the application of the evidence. ' 
 Thus, an error in a Christian or surname may be proved.s 
 Where the grantor has no lands agreeing exactly with the 
 description in the deed, the lands intended may be shown by 
 the contract of sale, or by letters written between the par- 
 ties and their agents. ^ 
 
 Where a devise was to S. H., second son of T. H., but in 
 fact S. H. was the third son, evidence of the state of the 
 testator's family, and of other circumstances, was admitted 
 to show whether he had mistaken the name or the descrip- 
 tion.'* There are also other authorities for admittinc: evi- 
 dence that the testator was accustomed to misname a person, 
 and thus to show who was meant by him, although there be 
 a person in existence whose name corresponds with that in 
 the will.^ So by " my nephew, J. G.," testator's wife's 
 nephew may be shown to be meant, though the testator also 
 had a nephew J. G. Where the devise was to John A., 
 grandson of T. A., with a charge in favor of " each of the 
 brothers and sisters" of the said John A., and it appeared 
 that there were two grandsons of T. A., both named J. A. ; 
 held, that oral declarations of the testator were admissible to 
 show which was meant, although it also appeared that only 
 one of the grandsons had several brothers and sisters.^ In 
 the case of a devise to testator's niece, remainder to her 
 three daughters, M., E., and A., the niece at the time of 
 making the will had two legitimate daughters, M. and A., 
 
 147 ; Milling- v. Crankfield, 1 Mc- ^ Beaumont v. Field, 1 B. & A. 
 
 Cord (S. C), 258 ; Clark v. Powers, 247. 
 
 45 111. 283 ; Baker v . Talbot, 6 T. * Le Chevalier v. Huthwaite, 3 
 
 B. Mon.(Ky.) 182; Hemhell ^j. White, B. & A. 632. 
 
 2 Overt. (Teun.) ; Belt v. Miller, " Blundell v. Gladstone, 11 Sim. 
 
 4 H. & J. (Md.) 533 ; Dorsey v. 467; 1 H. L. C. 778; Lee v. Pain, 4 
 
 Hammond, 1 H. & J. (Md.) 201. Hare, 251. 
 
 ' Miller -w. Travers, 8 Bing. 248-9; ^ Grant v. Grant, L. R., 2 P. & 
 
 Charter v. Charter, L. R., 2 P. & M. 8 ; Id. v. Id., L. R., 5 C. P. 380; 
 
 M. SK ; L. R., 7 H. L. 364. Id. 727 ; but see Wells v. WeUs, L. 
 
 ' Careless v. Careless, 1 Meriv. R., 18 Eq. 504. 
 
 384. ■• Allen v. Allen, 12 Ad. & E. 451.
 
 48 EVIDENCE. [CIIAP. II. 
 
 ami one illogitimatc, E. ; held, that the cUiiin of the latter 
 inii,'ht be rchutted by showing that the niece formerly had 
 a k'u:itiinate daughter, E., and that the testator knew nothing 
 of the death of the legitimate, or the birth of the illegiti- 
 mate, E.i 
 
 Sec. 17. Declaration of Te.stator's Intention to explain Ambigmty 
 admissible, wrhen. 
 
 Evidence of the testator's declaration of intention is only 
 admissible where the language is clear and unambiguous, but 
 the ambiguity arises from some of the circumstances admit- 
 ted in proof, as to which of two or more persons the testa- 
 tor intended to express.^ Where a devise was to John H., 
 the eldest son of John H., and it appeared that John IL, the 
 father, had an eldest son named Simon, and a son by a 
 second marriage named John ; held, that the declarations of 
 the testator were not admissible to show which was meant. ^ 
 Where the devise was to the testator's " nephews," and evi- 
 dence had been adduced to show that he had no nephews, 
 but that his wife's nephews were meant, it was held that 
 evidence that these could not have been intended by the tes- 
 tator Avas not admissible, without also showinj; some other 
 class Avho were intended to take.'* 
 
 A devise to "my dear wife C." cannot be defeated by 
 showing that the devisor had a lawful wife, M., alive when 
 he went through a form of marriage with C.^ But where 
 B. niakcs a devise to his wife A., the devise may be defeated 
 by showing that A. fraudulently concealed from B. that she 
 had a husband living when she went through a form of mar- 
 riage with B.^ Where a fine was levied of 12 messuao;es in 
 Chelsea, and it appeared that the cognizor had more than 12 
 messuages in Chelsea, oral evidence was admitted to show 
 which messuages in particular the cognizor intended to pass.' 
 
 * Thomas v. Baynon, id. 431. * Sherratt v. Mountford, L. R., 8 
 ' Hiscocks V. Hiscocks, 5 M. & Ch. 928. 
 
 "W. 363, 369 ; In the goods of Peel, ' Gains n. Rouse, 5 B. C. 422. 
 L. R.. 2 P. & M. 46 ; Charter v. » Wilkinson v. Jonghin, L. R., 2 
 
 Charter, i,. n., 7 H. L. 364. Eq. 319, following Kennell «. Abbott, 
 
 • His<-(..;ks V. Hiscocks, ^vj^a. 4 Ves. 802. 
 
 ' Bulkeley «. Wilfoi-d, Ry. & M. 88.
 
 SEC. 18.] PAKOL EVIDENCE, RULES RELATING TO. 49 
 
 Sec. 18. Where Evidence of Situation of the Property, etc., is ad- 
 missible. 
 
 It may be laid down as a general rule, that all facts relat- 
 ing to the subject of the devise, such as that it was not in 
 the possession of the testator, the mode of acquiring it, the 
 local situation, and the distribution of the property, are 
 admissible to aid in ascertaining what is meant by the words 
 used in the will.^ Even the value of the property, and the 
 charges upon it in the will, may be shown in explanation of 
 it.2 In construing a will the court should place itself as 
 fully as possible in the situation of the testator, and guide 
 its construction of his intention in some degree by the light 
 of the knowledge thus acquired.^ 
 
 Where a subject-matter exists which satisfies the terms of 
 the will, and to which they are perfectly applicable, there 
 is no latent ambiguity, and no evidence can be admitted for 
 the purpose of applying the terms to a diflerent object. 
 Thus, where a testator devised his "estate at Ashton," it 
 was held that oral evidence was inadmissible to show that he 
 was accustomed to call all his maternal estate " his Ashton 
 estate," there being an estate in the parish of Ashton which 
 was sufiicient to satisfy the devise.^ But a devise of lands 
 "in parish D.," will pass lands of ^\hich. pai'i only is in D., 
 if it be shown Ijy oral evidence that all was reputed to be in 
 it.^ Where words have acquired a precise and technical 
 meaning, no other meaning can be applied to thcm.^ In the 
 case of a legacy to the testator's " heir," it cannot be shown 
 that a testator was in the habit of calling a person his heir 
 who was not so.''' If a will names the devisee and it is shown 
 
 ' Parke, J., in Templeman v. 147; S. C. Dom. Pro., 4 Dow, 65; 
 
 Martin, 4 B. & Ad. 785 ; Webber v. Webber v. Stanley, supra; Pedley 
 
 Stanley, 16 C. B., N. S. 698; Wig- v. Dodds, L. R., 2 Eq. 819. See also 
 
 ram on Interp. Wills, Carruthers v. Sheddon, 6 Taunt. 14. 
 
 * Nightingall v. Smith, 1 Exch. * Anstee v. Nelms, 1 H. & N. 
 879 ; see also AUgood v. Blake, L. 225 ; Whitfield v. Langdale, 1 Ch. 
 R., 8 Ex. 160. D. 61. 
 
 ^ Hill V. Crook, L. R., 6 H. L. ° Per Lord Kenyon, Lane v. Earl 
 
 265, 277 ; Charter v. Charter, L. R., of Stanhope, 6 T. R. 352. 
 
 7 H. L. 364, per Lords Cairns, C, '' Mounsey v. Blamire, 4 Russ. 
 
 and Selboukne. 384. 
 
 * Chichester v. Oxenden, 3 Taunt. 
 
 4
 
 5(1 
 
 EMDEXCE. [chap. II. 
 
 orally tlitit there iiro several to whom the name applies ; yet 
 this is not enongli to let in oral evidence of intention, Avhere 
 it can be collected I'rom the will itself who was intended.' 
 
 Sec. 19. Rule where the Ambigmty is Patent. 
 
 Where the aml)ignity is not latent, or raised by extrinsic 
 evidence, but patent or apparent on the face of the instru- 
 ment, oral evidence is not admissible to explain such 
 ambi'Miity. Thus, where a blank is left for the devisee's 
 name in a will, oral evidence cannot be admitted to show 
 whose name was intended to be inserted. =^ Where the names 
 of the devisees in a will of real property were all indicated 
 only by single letters, a card kept by the testator separate 
 from his will, containing "a key " to the letters, and showing 
 the person meant by each, was held inadmissible to explain 
 it, though referred to in the will.' But where a blank was 
 left tor the Christian name only, oral evidence was admitted 
 to prove the individual intended.'* So in case of a devise 
 '•to Mrs. G.," the Chancellor referred it to the Master to 
 receive evidence to show the person intended, who found 
 that the testator invariably called a Mrs. Gregg by the name 
 of " Mrs. G."® Where a will mentioned George, the son of 
 George Gord, and also George, the son of John Gord, a 
 bequest to " George, the son of Gord,''^ was explained by 
 proof of the declarations of the testator to mean George, 
 the son of George Gord.^ In reply to the argument that 
 this was a ^;a/f:'n< ambiguity, it was said that it could only 
 appear ambiguous by showing aUumU the non-existence of 
 a George, the son of Gord, different from the other two 
 Georges ; and that the mention of another George in the 
 same will had no other eflect than extrinsic proof of the same 
 tact would have had. If an ajjreement, unambi«;uous on the 
 face of it, is shown hy extrinsic evidence to have a different 
 
 • Westlake v. Westlake, 4 B. & * Price v. Page, 4 Ves. 680. But 
 A. ", ; W.-]jber V. Corbett, L. R., see Doe d. Gord v. Needs, 2 M. & 
 10 Ivi. :A^. yf^ 139^ 
 
 » tiaylis V. Atty.-G.en., 2 Atk. 239. ' Abbott v. Massie, 3 Ves. 148. 
 Web.ster v. Atkinson, 4 N. H. 21. « Q^rd v. Needs, 2 M. & W. 129. 
 
 • Clayton v. Nug-ent, Ld., 13 M, 
 & W. 200.
 
 SEC. 20.] PAROL EVIDENCE, RULES RELATING TO. 51 
 
 meaning from that which it imports, and the extrinsic facts 
 are undisputed, the construction of it is for the judge, who 
 ought not to leave it to the jury as a question of the inten- 
 tion of the parties.' 
 
 Where a blank is left in a written agreement which need 
 not have been reduced into writing, and would have been 
 equally binding if written or unwritten (as if the agreement 
 be to deliver goods to the value of less than 10/., and a blank 
 be left for the quantity of goods to be delivered), in such a 
 case it would seem that in an action for the non-performance 
 of the contract, oral evidence may be admitted to supply 
 the defect.^ An instrument so imperfect on the face of it is 
 no perfect contract at all so as to exclude oral evidence. As 
 to the eflect of omissions in a contract within the Statute of 
 Frauds, see post, A.clionfor not accepting goods. Where, in 
 the entry of an appointment to a curacy in the bishop's 
 register, a blank was left for a patron's name, it was held 
 that this might be supplied by oral evidence>3 A demise 
 offered in evidence was a printed blank form filled up and 
 altered for use ; held, that the court might look at the parts 
 struck out in order to ascertain the intent of the parties in 
 what remained.^ 
 
 Sec. 20. Rule -where Ambiguity relates to the Application of the 
 Writing to the Subject-matter. 
 
 Where the question is as to what the writing applies, oral 
 evidence is admissible to explain it. Thus, where a testator 
 devised " all his farm called Trogues Farm," it was held that 
 it might be shown of what parcels the farm consisted.^ But 
 where a deed professes to convey a farm as described 
 on a schedule and map annexed, a field not included in the 
 map or schedule, though always treated as part of the farm, 
 will not pass.^ Where the testator devised two cottages, 
 one described as being in the occupation of A., and the other 
 
 ' Hitchin v. Groom, 5 C. B. 515. * Strickland v. Maxwell, 2 Cr. & 
 
 "" Phill. Ev. 521. M. 539. 
 
 ^ Meath, Bp. of, v. Belfield, Ld., 1 * Radford v. Southern, 1 M. & S. 
 Wils. 215. 299. 
 
 * Barton v. Dawes, 10 C. B. 261,
 
 f,2 EVIDENCE. [chap. II. 
 
 ()t" Ii. ; iiiul it appeared that the testator had two cottages 
 whicli had l)ct'ii internally divided, so that part, only was 
 oecui)iod by A., and part of the other occupied by B. ; it was 
 hekl that only the portions of the cottages so occupied passed 
 by the devise, and oral evidence was not admissible to show 
 that he meant the entire cottages to pass.i Where a lease 
 profossfd to (.lemisc premises and a yard, extrinsic evidence 
 was aiiniit led to rebut the presumption that a cellar under 
 the yard was also intended to pass.^ So in case of a written 
 a<yreement to convey " all those brick- works in the possession 
 of A. B.," oral evidence of what passed on making the agree- 
 ment was admitted to show what brick- works were intended 
 to i)ass.^ Althouirh the (question of parcel or no parcel is 
 for the jury, the judge nmst tell the jury what is the proper 
 construction of any documents necessary to be considered in 
 the decision of that question.'' Conditions of sale, shown to 
 a i)urchaser at the time of sale, are evidence against him of 
 what was then reputed to be a part of the premises conveyed 
 to him by the d(!ed.^ But they will not narrow the language 
 of the conveyance.^ 
 
 Sec. 21. General Rules as to Patent Ambiguities. 
 
 Under the rule that parol evidence is not admissible to 
 add to or vary the terms of a written instrument, it follows 
 as a matter of course that it is not admissible to explain a 
 patent ambiguit}^''' or an ambiguity which appears upon the 
 face of the instrunieut, and shows that something is omitted 
 which must be added before the meaning of the parties can 
 be ascertained. Thus, where a memorandum as follows : 
 "B. takes C.'s Ohio and Miss, for 5,100 and odd dollars, 
 to be iM<l. on C.'s note on date of sale," was relied on, 
 
 ' Hulihar.l V. Hubbard, 15 Q. B. 442. See also Glave v. Harding, 27 
 
 227. L. J., Ex. 286. 
 
 » Frceland v. Bui-t, 1 T. R. 701. ' Panton v. Tefft, 22111. 366 ; Rich- 
 
 ' Paddock v. Fradley, 1 C. & J. mond Trading, &c., Co. v. Farquar, 
 
 '♦0. 8 Blackf. (Ind.) 89; Bowyer v. 
 
 * Lyle V. Richards, L. R., 1 H. L. Mai-tin, 6 Rand. (Va.) 525 ; Morris 
 
 222. 71. Edwards, 1 Ohio, 184 ; Johnson v. 
 
 Murly V. McDcrmott, 8 Ad. & Bullen, 2 Port. (Ala.) 29; Betts v. 
 
 Demumbrane, Cooke (Tenn.), 89; 
 
 E. 138. 
 
 Norton v. Webster, 12 Ad. & E. Mithoff v. Bryne, 20 La. An. 363.
 
 SEC. 22.] PAROL EVIDENCE, RULES RELATING TO. 53 
 
 it was held that parol evidence was not admissible to vary 
 it, there b.eing no dispute as to the specific note or stock 
 meant, or the meaning of the abbreviations. ^ So, a contract 
 in writing as follows : "I hereby agree to take 500 lbs. of 
 sugar of B., and pay him therefor ten per pound," contains a 
 patent ambiguity, and parol evidence is not admissible to show 
 that ten cents was the price agreed on, consequently no action 
 could be maintained upon the contract,^ and generally, when 
 the ambiguity arises from the phraseology of the contract, 
 and not from extrinsic matters, the ambiguity is patent and 
 cannot be cured by parol evidence.^ 
 
 Sec. 22. Parol Evidence to Explain Writings. 
 
 Parol evidence is never admissible to explain a written 
 contract or show the intention of the parties when the 
 contract is free from doubt, and such evidence gives to the 
 contract an eflect difterent from that whichv^arises from a 
 fair construction of the language used, or gives an advantage 
 to one party, or adds a burden to the other, which, except 
 for such evidence, would not exist. Thus, where an agree- 
 ment in writing was entered into between A. and B., that A. 
 should have the product of " Boreham meadow," it was held 
 that A. could not i)rove that it was at the same time agreed 
 omWy that he should also have the produce from both Mil- 
 croft and Boreham meadow. ■* So, where a note is payable 
 on demand, parol testimony is not admissiljle to show that 
 it was agreed that it should not be payable until a given 
 event happened ;^ or to show that a note, payable on a day 
 
 ' Colt V. Cone, 107 Mass. 285. was held fatally defective, since, 
 
 " In Clements i). Taylor, 65 Ala. on account of the blank, the court 
 
 363, a certiticate signed by the clerk could not tell what entries and 
 
 of the U. S. district court officially, papers were intended to be certi- 
 
 with the seal of the court affixed, lied. 
 
 which stated " that the foregoing- ' Richmond, &c., Co. v. Farquar, 
 
 pages, numbered from 1 to — , 8 Blackf. (Ind.) 89. 
 
 both inclusive, contain a full, true * Alines v. Ansell, 3 Will. 275 ; 
 
 and complete transcript of all the Angel v. Duke, 32 L. T., N. S. 320 ; 
 
 proceedings in the matter of A. Hope v. Atkins, 1 Price, 143. 
 
 B., bankrujit, as the same appears ^ Moseley v. Hunaford, 10 B. & 
 
 of record, and on file in my office," C. 729 ; Besant v. Cross, 10 C. B. 
 
 not describing or identifying the 895 ; Adams v. Woodley, 1 M. & W. 
 
 papers included in the transcript, 374.
 
 54 EVIDENCE. [CIIAP. II, 
 
 ccrtiiiii, wa^j to be paid on :i contingency only ;' or that one 
 
 set of written instrnctions snper.seded another f or that the 
 
 party shonld have what the wi-itten instrument said he 
 
 should not luive,^ as to include more property in a sale than 
 
 that described in the written contract ;i nor generally can a 
 
 contract, which the parties intended to make, but did not 
 
 make, be set up in place of one which they did make, but 
 
 did not intend to make.^ 
 
 Where the conditions of sale described the number and 
 
 kind of timber trees to be sold by lot, but not the w^eight of 
 
 the timber, it was held, in an action for the purchase-money, 
 
 that oral evidence could not ))e given by the defendant that the 
 
 auclioncer had, at the sale, Avarranted the timber of a certain 
 
 Avci<rlit.^ So where a contract was entered into to deliver 
 c 
 
 good, sound, merchantable logs, to be cut from standing 
 timber within a mile from a certain creek, and there was 
 evidence that the logs in question were cut within one-fourth 
 of a mile from the creek, and that where the logs were cut, 
 and a great many of the trees were rotten, it was held that 
 the question was whether such logs were sound and nier- 
 chantal)lc, and, therefore, that evidence that they were not 
 as good as other logs on the creek, or whether they were an 
 average lot w'ith other logs on the lot, was not admissible,''^ 
 iis the eftect of such evidence would be to vary the terms of 
 the contract from a contract to deliver good, sound, mer- 
 chantable logs to one for the delivery of logs as good as 
 other logs upon the lot, or logs on an average with other 
 
 ' Rams<;an v. Walker, 1 Stark. Cowles v. Townsend, 31 Ala. 133. 
 
 3t;i ; Foster v. JoUey, 1 C, M. & R. And the same rule apijlies to bills 
 
 703 ; S. B. Morrison v. Lovejoy, 6 of exchange. Mason v. Graff, 35 
 
 Minn. 319; Hatch t\ Hyde, 14 Vt. 25 ; Penn. St. 445. 
 
 Swank v. Nichols, 24 Ind. 199 ; * Dunlap v. Monroe, 7 Cr. (U. S.) 
 
 Farnhain v. Ingham, 5 Vt. 514 ; 242. 
 
 Schui-mieri). Johnson, 10 Minn. 319 ; Mones u Parmer, 11 Paige (N. 
 
 Srnitli v.. Thomas, 29 Mo. 307; Fay Y.) Ch. 650 ; Osborn v. Hendrick- 
 
 V. Black.stone, 31 111. 538 ; Carrier son, 7 Cal. 282. 
 
 V. Hale, 8 Allon (Mass.), 47. Or to " Osbom v. Hendrickson, ante. 
 
 extend or vary the time of pay- ^ Sanford v. Howard, 29 Ala. 684. 
 
 ment. Inge v. Hana, 29 Mo. 399 ; « Rowell 'o. Edmunds, 12 East, 6 ; 
 
 Bro\vn v. Wiley, 20 How. (U. S.) Shelton v. Livius, 2 C. & J. 411. 
 
 442 ; Eaton v. Emerson, 14 Me. 335 ; ' Tenney v. Mulvaney, 8 Or. 513. 
 Joyner v. Turner, 19 Ark. 690;
 
 SEC. 22.] PAROL EVIDENCE, RULES RELATING TO. 55 
 
 loo-s thereon, which is never admissible. ^ So oral evidence 
 is inadmissible to alter the legal effect and construction of a 
 written agreement. Thus, where an agreement for the sale 
 of goods Avas silent as to the time of delivery, in which case 
 the law implies a contract to deliver in a reasonable time, it 
 was held that oral evidence of an agreement to take them 
 away immediately was inadmissible.^ So where a contract 
 of sale, being silent as to time of payment, implies payment 
 on delivery, proof of intended credit is inadmissible. 
 Where the defendant, the day after a sale by him of flour to 
 the plaintiff, sent a memorandum of the sale, " Sold White's 
 X. S.," and delivered "White's X. S." acccu'dingly : it was 
 held, that the plaintiff could not show that the contract was 
 for " White's X. X. S.^ It is observable, however, that the 
 four last cases were for non-performance of executory con- 
 tracts within the Statute of Frauds, which ought to contain all 
 the terms of agreement. So where the written agreement 
 was to take goods on board a ship " forthwith," oral evi- 
 dence to show that they were to be received on board in two 
 days was not allowed,^ An absolute sale of a reversion can- 
 not be qualified by proof of an oral agreement to apportion 
 the accruing rent.^ 
 
 • Perrine v. Cheeseman, 11 N. J. 5Ga. 373; Madison, &c., Plank Road 
 
 L. 174 ; Huflfman v. Hammer, 14 N. Co. v. Stevens, 6 Ind. 379 ; Irwin v. 
 
 J. L. 269 ; Spencer v. Tilden, 5 Cow. Ivers, 7 Ind. 308 ; Warren v. Crew, 
 
 (N. Y.) 144; Lowber v. Le Roy, 2 22 Iowa, 315; Theurer v. Schmidt, 
 
 Sandf. (N. Y.) 202; Donaldson v. 10 La. Ann. 125 ; Fei-guson ■i^. Glaze, 
 
 Benton, 4 Dev. & B. (N. C.)L. 435; 12 id. 667; Lesseps v. Wicks, id. 
 
 Singleton -u. Fore, 7 Mo. 515; Lane 739; Young v. Frost, 5 Gill (Md.), 
 
 V. Price, 5 id. 101 ; O'Harra v. Hall, 287 ; Albert v. Ziegler, 29 Pa. St. 50 ; 
 
 4 Dall. 340 ; McDowall v. Beckley, Evans v. Evans, id. 277 ; Smith v. 
 
 2 Mill (S. C.) Const. 365; Phillips McCall, 1 McCord (S. C), 220; 
 
 V. Keener, 2 Overt. (Tenn.) 329; Wade -?). Odeneal, 3 Dev. (N. C.) L. 
 
 Bondv. Jackson, Cooke (Tenn.), 500 ; 423. 
 
 Linard v. Patterson, 3 Blackf. (Ind.) ^ Greaves v. Ashlin, 3 Camp. 426 ; 
 
 353; Jones ■?».• Webber, 1 N. Chip. Hallileyy. Nicholson, 1 Price, 404. 
 
 (Vt.) 215 ; Bradley v. Bentley, 8 Vt. ' Ford v. Yates, 2 M. & G. 549. 
 
 243 ; Falkoner v. Garrison, 1 Mc- " Hamor v. Groves, 15 C. B. 667. 
 
 Cord (S. C), 209; Barringer v. * Simpson t). Henderson, M. & M. 
 
 Sneed, 3 Stew. (Ala.) 201 ; Hair v. 300. 
 
 La Brouse, 10 Ala. 548 ; Rogers v. ^ Flinn v. Oalow, 1 M. & Gr. 589. 
 Atkinson, 1 Ga. 12 : Wynn v. Cox,
 
 56 
 
 EVIDK-XCE. [CIIAP. II. 
 
 Eec. 23. Rule as to Independent Contracts where the Writing is evi- 
 dently incomplete. 
 
 But iu order to exclude oral proof of a contract, the 
 Avritiu"' must purport to be a complete contract. Therefore, 
 where a written order for goods was sent without mentioning 
 a time of payment, and they were delivered with an invoice 
 accordingly, it was rnled in an action for goods sold, that an 
 oial agreement for six months' credit might he, proved ; for 
 the order ^;e/- se was no contract, but only evidence of some 
 of the terms of one.' The rule is that, in all cases where' a 
 wnting, although embodying an agreement, is manifestly 
 incomplete and is not intended by the parties to exhibit the 
 ichole agreement, but only to define so)ne of its to^ms, the 
 writing is conclusive as far as it goes; but such parts of the 
 actual contract as are not embraced within its scope, may be 
 established by parolr But it must be rememlK'rcd that this 
 rule has no force where the contract comes within the Statute 
 of Frauds,=^as it is contrary to both the letter and spirit of that 
 statute to permit a contract coming within its provision to 
 rest partly in parol.* So where a written proposal was not 
 accepted, oral evidence of the terms of the contract is admis- 
 sible.^ And it would seem that when a writing is not ex 
 necessitate legis (as under the Statute of Frauds), the appar- 
 
 ■ Lockett V. Nickliii, 2 Exch. 93. posals of B., the contract is not i-e- 
 
 ' Crane v. Ehzabeth, &c., Assn., duced to writing, and parol evidence 
 
 29 N. J. L. 302 ; Parker v. Miller, is admissible as to its terms. Pa- 
 
 27 id. 338. The AUda, 1 Abb. Adm. cific Works v. Newhall, 34 Conn. 67. 
 
 (U. S.) 173; Sheffield v. Page, 1 So where there was a sale of a cer- 
 
 Sprag-ue, 28.5 ; Kieth v. Kerr, 17 tain amount of standing timber by 
 
 Ind. 284 ; Taylor v. Galland, 3 Iowa, a conti-act partly reduced to writ~ 
 
 17 ; Mos.s V. Green, 41 Mo. 389 ; ing, parol evidence was held admis- 
 
 W«1)ster v. Hodgkins, 25 N. H. 128 ; sible to show, what did not appear 
 
 Sale V. Darragh, 2 Hilt. (N. Y.) 184 ; by the writing, /jw/i what tract the 
 
 Miller t). Fitchom, 81 Penn. St. 252; timber was to be cut. Pinney -y. 
 
 Cobb «. Wallace, 5 Coldw. (Tenn.) Thompson, 3 Iowa, 74. 
 
 539 ; Winn t>. Chamberlin, 32 Vt. » Choolam v. Keam, 7 Ves. 211 ; 
 
 318. Oral eN-idence, and a written Parterich v. Pawlet, 2 Atk. 283 ; 
 
 memorandum not amounting to a Omerad i). Hardman, 5 Ves. 722. 
 
 contract, may be concurrently ad- ■• Wood on Statute of Fi-auds, 736. 
 
 mittod to ])rovc the terms of a con- * Scones v. Dowles, 29 L. J. Ex. 
 
 tract. Mobile Marine Dock. &c., 122 ; see also Eden -y. Blake, 13 M. 
 
 Co. V. McMillan, 31 Ala. 711. Where & W. 614. 
 A. verbally accepts the written pro-
 
 I 
 
 SEC. 23.] PAROL EVIDENCE, RULES RELATING TO. 57 
 
 ent deficiencies of a written agreement as to some particulars 
 of price, time of delivery, etc., may be supplied by oral evi- 
 dence, although the jury would be directed to presume a 
 reasonable price, or reasonable time, etc., in the absence of 
 such evidence ; for such evidence does not contradict or vary 
 the written document as fur as it goes ; and it may be that 
 the parties themselves did not intend to commit to paper the 
 wJiole of the contract.' 
 
 It is never admissible to show that at the time a written 
 contract was made, an agreement by parol relating to the 
 same sul)ject-matter was also entered into, hut a j)arol agree- 
 ment collateral to or independent of such written contract, may 
 be shown,^ when it relates to a matter al)out which the writ- 
 ing is silent,3 or to show a new and independent contract 
 relating to the same subject-matter subseque7itly entered into 
 hy parol uiwn a good consideration, whether it is a suljstitute 
 for the old contract, or is in addition to it,^ and in such case, 
 if the new contract covers the whole subject-matter of the 
 written one, it supersedes and extinguishes it, and it is 
 merged in the parol contract.^ But if the new contract 
 
 ' Valpy V. Gibson, 4 C. B. 837. Morrall v. Watterson, 7 Kan. 199 ; 
 
 "" -Pag-e V. Sheffield, 2 Curt. (U. S.) State v. Nashville, 2 Tenn. Ch. 755. 
 
 377 ; Phillips v. Preston, 5 How (U. Nor that it was verbally agreed 
 
 S.) 278 ; Shepherd v. Wyrony, 3 W. that the manure on the lands should 
 
 Va. 46 ; Heatherley v. Record, 12 pass with the deed. Proctor v. 
 
 Tex. 49; Flanders v. Fay, 40 Vt. Gibson, 49 N. H. 62. Nor to add 
 
 316 ; Marshall v. Baker, 19 Me. 402 ; a covenant to the deed. Sawyer v. 
 
 Perry v. Central, &c., R. R. Co., 5 Tories, 44 Ga. 662. Nor to attach 
 
 Cald. (Tenn.) 138 ; Cobb v O'Neal, a condition to the deed repugnant 
 
 2 Sneed (Tenn.), 238 ; McKinstry v. to its legal effect. Beers v. Beers, 
 
 Runk, 12 N. J. Eq. 60 ; Creamer 22 Mich. 42. Or that a deed per- 
 
 V. Stephenson, 15 Md. 211 ; Joannes feet on its face was delivered upon 
 
 V. Mudge, 6 Allen (Mass.), 245. condition. Miller v. Fletcher, 27 
 
 In Buzzell v. Willard, 44 Vt. 44, Gratt. (Va.) 403. 
 
 it was held that evidence of an ^ Keough v. McNitt, 6 Minn. 513 ; 
 
 oral agreement made collaterally Ruggles v. Swarrick, 6 id. 457. 
 
 Avith a deed, and relating to the * Heatherly v. Record, 12 Tex. 
 
 property conveyed, but entirely in- 49 ; Cummings-?). Putnam, 19 N. H. 
 
 dependent of the instrument, is ad- 969 ; Van Buskirk vi. Roberts, 31 
 
 missible. But such a parol agree- N. Y. 661. 
 
 ment is not admissible to show that ^ Bernard v. Sampson, 12 N. Y. 
 
 the grantee agreed to hold the land 561. 
 in trust for the grantor's benefit.
 
 58 EVIDE>'CE. [chap. II. 
 
 oiil}- relates to a part of tlie matters embraced iu the written 
 one, it only supersedes the latter as to the matters to -wliieh 
 it relates, leaving the written contract iu force as to all 
 other matters.' So where a writing, although embodying 
 an agreement, is manifestly incomplete, and not intended 
 by the parties to exhibit the whole agreement, but only to 
 detine some of its terms, the writing is conclusive as far as 
 it ""oes : but such parts of the actual contract as are not 
 embraced within its scope, may be established by parol 
 evidence. - 
 
 But this must be understood as applying only whe7i the 
 ivritinrf teas evidently not intended as the complete contract. 
 If the parties intended that the writing should embrace the 
 entire contract, parol evidence is not admissible at laAV to add 
 terms thereto, even though they were omitted 1)y mistake.^ 
 In- the latter case the writing itself is the sole exponent of 
 the contract and cannot be varied by parol. ^ The rule stated 
 may be said to a|)ply only to informal instruments and loose 
 memoranda Avhich were manifestly not intended by the 
 parties to contain the terms of their contract. Thus, where 
 a plaintiir had bought and paid for a horse on a verbal 
 warranty by the defendant, and shortly after the purchase 
 was completed, the defendant gave him a paper in the follow- 
 ing form : — " Bought of A. B., a horse for 11. — A. B.," — the 
 court, in an action for breach of warranty, held that the 
 l)laintiff might prove the warranty by parol evidence, as the 
 paper appeared to have been meant merely as a memorandum 
 of the transaction, or an informal receipt for the money, and 
 
 ' Mowjitt V. Lord Londersbor- Hodgkins, 25 N. H. 128 ; Sale v. 
 
 ough, 3 E. & B. 307; McCulloug-h Darragh, 2 Hilt. (N. Y.) 184; Mil- 
 
 V. Girai-d, 4 Wash. (U. S. C. C.) ler v. Fichthorn, 31 Pa. St. 252; 
 
 280; Atwood v. Norton, 27 Barb. Cobb v. Wallace, 5 Coldw. (Tenn.) 
 
 (N. Y.) 638. 539; Winn v. Chamberlain, 32 Vt. 
 
 ' McCuUough V. Girard, 4 Wash. 318. 
 
 (U. S. C. C.) 292; Hunt v. Adams, ^ Young t) Jacoway, 17 Miss. 212 j 
 
 ♦) Ma-Ms. 519; The Alida, 1 Abb. Crane ?>. Elizabeth, &c., Assn., 29 N. 
 
 Adm. (U. S.) 173 ; Sheffield v. Page, J. L. 302. 
 
 1 Sprague (U. 8. C. C), 285 ; Kieth * Perkins u Young, 1 Gray (Mass.), 
 
 V. KeiT, 17 Ind. 284 ; Taylor v. Gal- 389 ; Kirk v. Hartman, 63 "Penn. St. 
 
 land, 3 Greene (Iowa), 17 ; Moss v. 97 ; Cooke v. Bailey, 42 Miss. 81. 
 Green, 41 Mo. 389; Webster v.
 
 SEC. 23.] PAROL EVIDENCE, RULES RELATING TO. 59 
 
 not as containing the terras of the contract itself." So, where 
 a person, after having agreed to hire a horse, had given the 
 owner a card, on which he had written in pencil, " six weeks 
 at two guineas, W. H.," the owner was allowed to prove by 
 })arol evidence, not indeed a different time of hiring or a 
 larger rate of payment than those stated in the memorandum, 
 but an additional term of the contract, namely, that all acci- 
 dents occasioned by the shying of the horse should be at the 
 risk of the hirer.^ Again, in the sale of a chattel under the 
 value of 10/., an auctioneer is not bound by the description 
 of the article contained in the unsigned printed catalogue ; 
 but if, when the article was put up at auction, he pub- 
 licly stated in the hearing of the purchaser that the 
 description was incorrect, he will be entitled to a 
 verdict for the price on giving parol j)roof of such 
 statement.'^ But as previously stated, this rule, or rather 
 exception to the general rule, is confined wholly to 
 that class of writings which are mere memoranda, 
 and were manifestly not intended to express the entire con- 
 tract between the parties. In other words, the writing on 
 its face should rebut the presumjytion that it is comjilete,"^ 
 although it is not necessary that it should expressly and 
 directly do so. Thus, where all the terms of a contract 
 for the sale of a crop of cotton were reduced to writing, 
 except as to the time of delivery, it was held competent to 
 shoAV, by parol, that at the time the contract was entered 
 into, a day was fixed for delivery.^ So, wdicre a contract 
 for the delivery of articles was silent as to the jjlace of 
 delivery, it was held that parol evidence was admissible to 
 show that at the time the contract was executed, a particular 
 place for delivery was agreed upon.® It wilb from the last 
 two instances given, be seen that contrary to the doctrine of 
 some of the early cases,^ that the presumption which the law 
 
 1 Allen V. Pink, 4 M. & W. 140. ^ Johnston v. McRary, 5 Jones 
 
 '^ Jeffrey v. Walton, 1 Stark. 267 ; (N. C.) L. 369. 
 
 Hadley v. Clinton, &c., Co., 13 Ohio ^ Mussleman v. Stoner, 31 Penn. 
 
 St. 502. St. 268. 
 
 = Eden v. Blake, 13 M. & W. 614. ' Barringer v. Sneed, 1 Stew. 
 
 * Jeffrey v. Walton, ante. (Ala.) 201 ; Ely v. Adams, 19 John. 
 
 (N. Y.) 312.
 
 GO 
 
 EVIDENCE. [CIIAP. II. 
 
 raises, cither as to the time or place when or where a written 
 contract is to l)c performed, may be overcome )jy parol proof 
 of a contemporaneous agre'cmcnt in that respect ; but where 
 a contract expressly provides that it shall be performed 
 " within a reasonable time," parol evidence that a particular 
 time was airrccd upon within which it should be performed is 
 not admis.sil)lc. In such a case the jury must determine what is 
 a reasonable time, and the contract is complete.' In the 
 Ciise of a blank indorsement of a bill or note, ui)on the 
 principle already stated, the immediate parties to the instru- 
 ment are not precluded from giving evidence of parol con- 
 temporaneous stipulations showing that a restricted operation 
 was intended to be given to the signature, or that the trans- 
 fer was upon trust, and not al)solute ;- for in such cases the 
 contract is left incomplete by the parties. So, where a con- 
 tract is silent as to the quantity of certain articles to be de- 
 livered, parol evidence is admissible to show it. Thus, where 
 a receipt was given for money in this form : " Rec'd of H. 
 S. Pottei-, five Jiuudred dollars, as advance on my wheat, to 
 be delivered ])eforc the 1st of July, at the Rochester price," 
 it wiis held that parol evidence was admissible to show that 
 the ao;reeraent was to deliver 600 or 700 bushels of wheat 
 J>efore the 1st of July at the plaintitf's warehouse, and was 
 to have the Rochester market price at any time before that 
 day, which he might elect.- 
 
 So in various cases of a somewhat similar nature, where a 
 writing has been executed by way of part performance 
 
 ' Jenkins v. Lykes, 19 Fla. 148. Conn. 213 ; Smith v. Barber, 1 
 ' Htackpole ?>. Arnold, 11 Mass. Root (Conn.), 207; Barker t). Pren- 
 32 ; Su.s(iuehanna Bridge v. Evans, tiss, 6 Mass. 430 ; Butler v. Suddeth, 
 4 Wa.sh. (U. S. C. C.) 480; Bank of 6 Mon. (Ky.) 541 ; Daniel v. Mac- 
 United States V. Dunn, 6 Pet. (U. Rae, 2 Hawks (N. C), 590 ; Granby 
 S.) 51 ; Brock v. Thompson, 1 Bai- v. Harden, 7 Taunt. 163; Brent v. 
 ley (S. C), 322; Barry v. Morse, 3 Metropolis Bank, 1 Pet. (U. S.) 89; 
 N. H. 132 ; Fuller v. McDonald, 8 Lan.sdale v. BroNTO, 3 Wash. (U S. 
 M.'. 213 ; Wrij,'ht v. Latham, 3 C. C.) 404. 
 
 Murph. (N. C.) 208 ; Barrows v. ^ Potter v. Hopkins, 25 Wend. 
 
 Lan.'. ;-) Vt. 161 ; Pike V. Street, 1 (N. Y.) 417 ; Norton v. Woodruff, 
 
 M. & M. 226 ; Hill v. Ely, 5 S. & R. 2 N. Y. 153 ; Young- v. Bushnell, 
 
 <Penn.) 363 ; Dean v.Hall, 17 Wend. 8 Bos. (N. Y.) 1 ; Lent v. Hodgman, 
 
 <N. Y.) 214; Perkins v. Catlin, 11 15 Barb. (N. Y.) 274.
 
 SEC. 23.] PAROL EVIDENCE, RULES RELATING TO. 61 
 
 merely of a parol contract. A familiar illustration is where 
 a chattel has been sold with warranty not in writing, and a 
 note given for the purchase-money. Clearly the note, in 
 such instances, would not merge the parol contract.^ So a 
 parol agreement between the parties was entered into, relat- 
 ing to the transfer of certain shares of stock in a bank not 
 then completely organized. At the conclusion of the agree- 
 ment, the defendant signed a paper, promising, in a general 
 way, to transfer the shares as soon as books for that purpose 
 should be opened by the bank. The defendant contended 
 that this instrument should be treated as evincing the entire 
 agreement, and that no i)arol evidence could be received of 
 stipulations not contained in it. The court, however, deemed 
 it a question of fact for the jury whether the instrument was 
 given in full execution of the parol conti-act or in part 
 merely ; and Washington, J., who delivered the opinion, 
 said — "if it should turn out that it formed part of the 
 agreement that such a paper should be given, or that a paper 
 of that description was, in the ordinary course of the defend- 
 ant's business, in respect to transactions of thi;? nature, given 
 by him, evidence of the parol contract will be proper, and 
 will not violate any of the rules of evidence."^ In an action 
 brought to recover a sum of money, for which the defend- 
 ants had signed a writing whereby they acknowledged its^ 
 receipt of the plaintiff " by the hands of B. to be accounted 
 for," parol evidence on the part of the defendants to show 
 that Ijefore the writing was signed, the plaintiff 1)eing 
 indebted to L., and L. to the defendants, it was agreed that 
 this money should be paid to the defendants in part payment 
 of their claim against L., and in part satisfaction of L.'s 
 claim against the plaintiff, was held admissible. 
 
 The court said the instrument was not a mere receipt, and 
 tlierefore liable as such to be varied ; nor was it one of those 
 writings which are to be regarded as merging all previous 
 negotiations ; they viewed it as given merely in part execu- 
 tion of the parol contract, and therefore the latter might be 
 
 ' Shepherd v. Temple, 3 N. H. (N. Y.)116; McCullochtJ. Girard, 4 
 455; Reab v. McAllister, 8 Wend. Wash. (U. S. C. C.) 289. 
 
 * McCuUough V. Girard, ante.
 
 (^2 EVIDENCE. [chap. II. 
 
 proved.' In another case, M. filed his bill in chancery, claim- 
 iiiira lien on lands sold to him by J. for an unpaid l)alance of 
 tlu' })iu-chiisc-money. The bill charged that at the time of the 
 purohasc the numl)er of acres in the tract sold was not ascer- 
 tained ; but it was agreed to estimate the quantity at 300 
 acres, with the understanding that a survey should subse- 
 quently be made, and if the tract should turn out to contain 
 more land, the excess should be paid for at the same rate per 
 acre as the three hundred acres, the supposed number ; that 
 witli this understanding a bond of conveyance was executed 
 by ]M. on the 17th of May, 1826, and a bond for the pur- 
 chase-money, according to the estimate above mentioned, by 
 J. on the day following ; that a survey of the land was 
 afterwards made, and it was found to contain a surplus of 
 230 acres over the estimated quantity ; and for the price of 
 the latter the complainant proceeded, he having previously 
 assigned the l)ond for the other part of the purchase-money 
 to one B. This bond was not produced, and the court 
 declined decidins: as to the existence of the lieu until the 
 contents of the bond should be proved in some way. But 
 they said that, unless there was something in the struc.ture 
 of the l>ond which negatives the lien, it would have to be 
 enforced. In respect to the parol proof relied on, they 
 added — " On the supposition that the bond is a mere obliga- 
 tion for the payment of money, without reciting the contract 
 of sale, there could be no possible legal objection to the 
 admi.ssiV)ility of the evidence m relation to the excess of 
 land above three hundred acres. It is in this light we have 
 su[)posed it to exist. In that view, the introduction of the 
 parol evidence would not affect in any manner the contract, 
 as evinced by the ])ond of conveyance and lioud for the piu'- 
 chase-money, but being evidence of a substantive independent 
 contract, its admissiljility could not be met by any legal 
 objection. "2 On the same principle, where there is a writing 
 importing a sale of personal proi)erty, or any other instru- 
 ment of transfer, it will preclude the vendee from proving 
 an agreement between him and the vendor, contempora- 
 
 ' rTorrish V. Washburn, 9 Pick. " Hall v. Maccubin, 6 G. & J. 
 (Mass.) 338. (Md.)107.
 
 SEC. 23.J PAROL EVIDENCE, RULES RELATING TO. 63 
 
 iieous with the instrument, and consistent with its terms, that 
 the vakie of the property should be appUed to the payment 
 of the defendant's debts.' The last case, like the one pre- 
 ceding it, goes on the proposition that parol evidence is 
 admissible, in cases of written instruments, to prove collateral 
 and independent facts, about which the writing is silent. In 
 a case in Indiana, Kelscy and Dickson being partners in a 
 mill which they had built, entered into a written agreement 
 stating inter alia that Dickson had bought Kelsey's interest 
 in the mill for 500 dollars, to be paid in certain installments. 
 Kelsey, in an action against Dickson for the purchase-money, 
 was permitted to show, by parol evidence, that the sum of 
 500 dollars which Dickson was to pay Kelsey for his interest 
 in the mill was exclusive of the expense that had been incur- 
 red in building it, and that those expenses were to be paid 
 by Dickson.^ 
 
 A plain and well-established exception to the general doc- 
 trine which regards all anterior and contemporaneous stipula- 
 tions and representations as merged in the written contract, 
 exists, where one party sues the other, alleging as the grava- 
 men of the action, some fraud of the latter, by which the 
 former was induced to enter into the contract. It has been 
 laid down in broad terms, that the rule which prefers written 
 to unwritten evidence, does not so apply as to exclude the 
 latter, when its object is to prove that the former had been 
 fraudulently obtained, and thereby to avoid the contract 
 evidenced by it, or secure indemnity to the party injured.^ 
 In an action on the case for deceit in the sale of a slave, 
 though there was a written bill of sale, containing a warranty 
 of soundness in " body, mind and title," yet it w\as held that 
 parol evidence going to prove other representations made by 
 the vendor at the time, such as that the slave was industrious 
 and free from vice, whereas he knew the contrary to be the 
 
 * McCreary v. McCreary, 5 G. & 13 John. (N. Y.) 301; Johnson v. 
 
 J. (Md.) 147. Mihi, 14 Wend. (N. Y.) 195; per 
 
 " Kelsey v. Dickson, 2 Blackf. Marshall, C. J., in Tayloe v. Rigg-s, 
 
 (Ind.) 236 ; 3 id. 189. 1 Pet. (U. S.) 591 ; per Kent, C. J., 
 
 ' Cozzens v. "Whitaker, 3 S. & P. in Mumford v. M'Pherson, 1 John. 
 
 (Ala.) 329 ; see Becker v. Vrooman, (N. Y.) 44.
 
 G4 EVIDENCE. [CHAr. II. 
 
 fact, w:is admissible.' So, where tlic ImII of sale of a slave 
 contained a warranty of soundness, but expressly excepted the 
 "phthisic ;" it wtus held that the vendee might nevertheless 
 prove, in an action for deceit, that the vendor represented 
 the s-lave as having the phthisic only slightly, whereas he 
 knew her to be in the last stage of that disease.^ But in 
 Louisiana, in an action on a note given for the price of a 
 slave, the defendant set up that the slave was in the habit of 
 running away, and that the plaintiff knew this to be the case 
 when he sold him. The bill of sale was under seal, and 
 expressly stated the slave to be a " runaway and a drunk- 
 ard." The defendant introduced evidence to show that 
 the plaintiff falsely represented this as a qualified vice. 
 The court, however, held him concluded by the deed.^ 
 Warranty is a contract, and being established by sufficient 
 proof, it is not admissible to show that the representations 
 were made in good faith. "^ A bill of sale in this form : Mr. 
 W. H., hoaghl of B. S. and B., specifying the articles and 
 their prices and the aggregate amount, delivered with the 
 goods, constitutes a valid sale, which cannot be contradicted. 
 by parol evidence offered to show that the transaction was 
 not a sale, but only a bailment.^ When such a bill is deliv- 
 ered on the sale of a horse, adding to it the words "received 
 l)ayment," signed by the seller, it is adjudged a receipt, and 
 not a contract or bill of sale which will exclude parol evi- 
 dence of a warranty of the soundness of the horse, ^ nor 
 as containing the terms of the contract itself.''' The instru- 
 ment, signed and delivered by the seller as a memorandum 
 
 ' Cozzens v. Whitaker, 3 S. & P. * Brisbane v. Parsons, 33 N. Y. 
 
 (Ala.) 322 ; S. P. M'Fariane v. Moore, 332. 
 
 1 Tenn. 174 ; see Johnson v. Brockel- * Bonesteel v. Flack, 41 Barb, 
 
 bank, 2 Hill (N. Y.), 3.53; Smith v. (N. Y.) 435. 
 
 Williams, Murph.(N.C.) 426; Wren * Filkins v. Whyland, 24 N. Y. 
 
 V. Wardlaw, 1 Ala. 363 ; Mumford 338. 
 
 V. M'Pherson, 1 John. (N. Y.) 418; ' Allen v. Pink, 4 M. & W. 140; 
 
 Fleming v. Slocum, 18 John. (N. Y.) Dunn v. Hewitt, 2 Den. (N. Y.) 637 ; 
 
 403. Blood V. Harrington, 8 Pick. (Mass.) 
 
 * Hanks v. M'Kee, 2 Lift. (Ky.) .o.52. In Hawson v. Henderson, 21 
 
 22T. N. H. 224, parol evidence of the 
 
 ' Bay'u.ii V. Towles, 5 Mart. (La.) warranty was received, though there 
 
 !• was a formal bill of sale.
 
 SEC. 23.] TAROL EVIDENCE, RULES RELATING TO. 65 
 
 of the sale, is evidence of a contract,' — an incomplete con- 
 tract,^ — not excluding proof of warranty by parol evidence. 
 Parol evidence should not be received to vary the terms of 
 a written agreement, and though received erroneously it is 
 still the duty of the court and jury to give effect to the 
 written in opposition to the verbal contract.^ Where a 
 person was induced to purchase land, by a fraudulent repre- 
 sentation that a certain privilege was connected with the land, 
 which the vendor knew was not included in the deed ; it was' 
 held that the vendee might recover.* And in Louisiana, fraud 
 in the sale, in such case, was allowed to be proved l)y way 
 of defense to an action for the purchase-money.^ So in 
 South Carolina ; and even representations founded simply in 
 mistake, are there admissible as a defense, either to the whole 
 action, or pro tanto, as the case may be.^ 
 
 But where the writing is complete, all prior negotiations 
 are merged therein. Thus in a Connecticut casc,*^ the defend- 
 ants made a written contract with the plaintiff to make and 
 set for -him " one drop flue boiler, G^ feet in diameter, and 24 
 feet long, wnth all the iron work belongingto it — all the work 
 to be done in the best manner and of the best material, and 
 satisfactory." In a suit on the contract, in which the plaintiff 
 claimed that the boiler was not properly made or set, he of- 
 fered to show that, during the negotiations which resulted in 
 the making of the contract, he informed the defendants how 
 much machinery the old boilers then in his mill would oper- 
 ate, and that he wanted a new boiler of the same efficiency, 
 and that the defendants assured him that the boiler which 
 they would make should be as efficient as the old ones, and 
 consume at least one-third less fuel, and that, on the faith of 
 this assurance, he entered into the agreement ; with further 
 evidence that the boiler consumed more fuel and was less 
 
 * Long V. Wheeler, 25 N. Y. 520. 15 Wend. (N. Y.) 351 ; Johnson v. 
 
 * Koop V. Handy, 41 Barb. (N. Miln, 14 id. 199. 
 
 Y.) 454. ^ Broussard v. Sudrigue, 4 Mill. 
 
 ^ Durgin v. Ireland and Pruden, (La.) 347. 
 
 14 N. Y. 322. « Means v. Brickell, 2 Hill (S. C), 
 
 * Monell V. Golden, 13 John. (N. 657. 
 
 Y.) 395 ; see also Russell v. Rogers, ' Fitch v. Woodruif Iron Works, 
 
 29 Conn. 82. 
 
 5
 
 G(> KVIDENCE. [CIIAP. II. 
 
 cflicit'iit than the old oiic^. It v,'aA held that the negotiations 
 ■\veic merged in the written agreement, and that the evidence 
 "\va.s inudmi-ssiblc. 
 
 So Avhere the owner of land entered into a contract under 
 seal with a railioad company to convey to the company a 
 riuht of way over his land, in consideration of $1, and of 
 their building their road, etc., it was held that evidence was 
 not admissil)le in an action to enforce the contract to prove 
 a verbal agreement on the part of the company to fill up a 
 blnice upon the land, as part consideration of the conveyance.' 
 In a New Hampshire case,- the defendant contracted in writ- 
 ing to take all the white oak timber upon the plaintiff's land 
 that was "suitable for ship timber." It was held that evi- 
 dence of declarations made at the time when the contract 
 was entered into, that the vessel for which he designed the 
 timber, was a small-sized one, and that he wanted the s^nall 
 timber upon the lot to put into the top of the vessel, for the 
 purpose of showing what sized tiinbe^- he wanted, were in- 
 admissible. In another New Hampshire case,^ A. entered 
 into a written agreement with B. to haul all the logs upon a 
 certain lot to another place, before a certain period. In an 
 action upon such agreement it was held that A. could not 
 introduce evidence to show that B. said, at the time 
 of making the contract, that, if there should not 
 be snow enough, he must leave them on the ground. 
 In a New York case* the plaintiff, by a written agreement, 
 bound himself to labor on a railroad at live shillings a day, 
 and at the same time, by parol, was promised twelve shillings 
 l)er day if employed on rock work. It w^as held that the writ- 
 ten agreement being general in its terras could not be controlled 
 by evidence of the parol promise, and in the absence of any 
 deceit as to the contents of the written agreement, the plain- 
 tiff', though an ignorant man, could recover on that only. So, 
 where there was a written agreement to deliver " 25,000 
 pale brick for three dollars per M,and 50,000 hard brick for 
 fonr dollars per M cash," parol evidence was held inadmissible 
 
 * Purinton v. Northern 111. R. R. => Hadydonv. Waldron, 9N. H. 66. 
 Co.. 46 111. 297. * Mallon v. Story, 2 E. D. S. (N. 
 
 * Pillsburj' V. Locke, 33 N. H. 96. Y. C. P.) 331.
 
 SEC. 23.] PAROL EVIDENCE, RULES RELATING TO. 67 
 
 to show that the parties iiiteiided the delivery to be iii 
 parcels, payment for each parcel to be due as it was de- 
 livered.^ So, where a written contract made the inspection 
 and determination of one S. as to the quality or grade of cer- 
 tain hops, conclusive upon the parties, evidence offered to 
 show that they were of inferior quality and worthless, 
 was held inadmissible.^ So, where there was writing, either 
 in the body of a written agreement or in the form of a party's 
 signature, indicating that the obligation thereby created was 
 intended to be any other than a personal obligation on his 
 part, it was held that parol evidence was inadmissible to 
 show that the agreement was in fact the obligation of third 
 persons, and that such party signed the agreement as their 
 agent.^ Where there was a written agreement to ship hogs 
 to New York, evidence of a verbal agreement that they 
 should be shipped by a certain one of two usual routes was 
 rejected.'* A contract for masonry was perfectly clear in its 
 specifications as to quality, etc. The work never having been 
 accepted, the contractor suing for damages, attempted to 
 show by parol that the understanding and agreement of the 
 parties was that the work should be done, not according to 
 the specifications, but like other work previously done by 
 the same contractor for other parties ; that the specification 
 in the contract was a printed form made for all contracts 
 entered into by tha commissioners of works, and not pre- 
 pared with reference to this particular contract. The evi- 
 dence was excluded.^ In an action l)y a contractor for 
 carrying the mails against a sub-contractor for default in 
 performing the sub-contract, parol evidence was held to be 
 inadmissible to show that the plaintift' agreed to oljtain the 
 consent of the post-ofiice department to a transfer of the con- 
 tract to the defendant.^ Where the plaintiff, in an action on 
 a contract for constructing a canal, offered to prove that the 
 defendants, either at the time when the contract was exe- 
 
 * Baker v Higgins, 21 N. Y. 397. " Webster v. Paul, 10 Ohio St. 
 
 " Clinton v. Brown, 41 Barb. (N. 531. 
 
 Y.) 226. ' Walker ■«. Manning, 6 Iowa, 519. 
 
 ' Babbett v. Young, 51 Barb. (N. ' Pierce v. Walker, 28 Iowa, 424. 
 Y.) 466.
 
 eS EVIDENCE. [CIIAI'. II. 
 
 culrd, or in the proliniinary negotiations concerning it, 
 veiljuUy proni^d him to constrnct u i5U)|)e wall jigainst the 
 embankment a^i the work advanced, which would have pre- 
 vented it from being swept away by the floods, it was held 
 that such evidence was inadmissiljle to control or vary the 
 contract in writing, in not coming within the rule allowiiig 
 the introduction of evidence as to the actual state of things 
 at the time when a contract in writing is made, to aid in its 
 construction.' It is hardly necessary to say that parol evi- 
 dence is never admissible to show a contemporaneous agree- 
 ment inconsistent with that which is written ; as, that when 
 a contract for the payment of money was executed, it v/os 
 agreed that property instead of money should be accepted ;2 
 or that when a contract was entered into by A., to pay B.'s 
 debts, it was agreed by parol that a debt due fioni B. to C. 
 was not included ; " or, that under a contract by A. to 
 ship to B. a certain quantity of goods, it was agreed that he 
 should only ship what he then had on hand,^ because in all 
 these instances the effect of the evidence is to vary the writ- 
 ten contract. The illustrations given will furnish a fair test 
 by which to determine when parol evidence is or is not ad- 
 missible to set up an independent parol agreement. 
 
 Sec. 24. Receipts 
 
 An exception is also allowed, where the writing is one of 
 that character which the law does not re2:ard as the best 
 evidence of the transaction to which it relates. Such are 
 general receipts, and other instruments of the like nature.* 
 
 * Boyle V. Ag-awam Canal Co., 22 Vt. .524 ; Nye v. Kellum, 18 id. 594 ; 
 Pick. (Ma.ss.) 381. Street v. Hall, 29 id. 165 ; Jones v. 
 
 ' Roundtree v. Gilroy, 57 Tex. Patterson, 1 W. & S. (Penn.j 321 ; 
 170 ; Van Vechten v. Smith, .59 Badger v. Jones, 12 Ark. 371 ; Oak- 
 Iowa, 173. Nor in an action on a ley v. State, 40 Ala. 392 ; Calhoun 
 note can it be shown that a mistake v. Richardson, 30 Conn. 216 ; Haw- 
 was made in arriving at the amount ley v. Badger, 15 Cal. 44 ; Porter v. 
 for which it was given. Clute v. Chicago, &c., R. R. Co., 20 Iowa, 
 Frasier, 58 Iowa, 2G8. 73 ; Dunnagan v. Dunnagan, 38 Ga. 
 
 » Brenner V. Luth, 28 Kan. 581. 5.54; Illinois, &c., R. R. Co. V. 
 
 * Schreiber v. Butler, 84 Ind. 576. Cowles, 32 HI. 116 ; Baugh v. Brass- 
 
 * Baugh V. Bras.sfield, 5 J. J. field, 5 J. J. Mar. (Ky.) 79 ; Carr i'. 
 Mar. (Ky.) 97; Hitt v. Slocum, 37 Minor, 42111. 179; Biingler v. Gor-
 
 I 
 
 SEC. 24.] PAROL, EVIDENCE, RULES RELATING TO. 69 
 
 Though when these assume the form of a contract, they are 
 to be treated so far as the exchisive medium of provhig 
 what the parties agreed to. Bills of parcels fall within the 
 range of the exception.^ So where it appeared that A. sold 
 B. a quantity of hops, and gave a bill of parcels, stating the 
 num])cr of bags, weight, price, etc., with a clause added as 
 follows: "These hops are warranted to be of the best 
 quality," in an action against A. for a breach of the war- 
 ranty it was held that A. was not precluded b}^ the bill of 
 parcels from proving that the hops were warranted only in 
 case they were carried to a particular place.^ 
 
 The inconclusiveness of receipts, as such, has been recog- 
 nized and acted upon in numerous cases.-^ But if a receipt 
 in full is given with a knowledge of all the circumstances, 
 and there is no mistake or surprise on one side, or fraud or 
 imposition on the other, it will be eflectual to defeat a fur- 
 ther claim.^ A receipt of a certain sum in full of all de- 
 mands, though not conclusive, is iprima facie evidence of a 
 settlement between the parties, and a payment of the bal- 
 ance, and it is erroneous to say that it is only evidence of 
 the payment of the sum specified.^ A receipt "in full of 
 
 don, 14 La. An. 274; Richardson v. "^ "Wallace v. Brown, 2 N. H. 596. 
 
 Reed, 43 Me, 161 ; Dunham r. Bauer, ^ Goddard v. Cutts, 11 Me. 440; 
 
 9 Allen (Mass.), 352 ; Rowe v. Chunn v. M'Carson, 2 Dev. Eq. (N. 
 
 Wright, 12 Mich. 289 ; Ben v. Wiley, C.) 73, 74 ; Beers v. Broome, 4 Conn. 
 
 17 Mich. 508 ; Williams vi. State, 20 467 ; Lingan v. Henderson, 1 Bland's 
 
 Miss. 58 ; Wallace v. Wilson, 30 Mo. Ch. (Md.) 249 ; Graves v. Key, 3 B. 
 
 335 ; Edgerley v. Emerson, 23 N. & Ad. 318 ; Fairnianer v. Budd, 7 
 
 H. 555 ; Furbush v. Goodwin, 25 id. Bing. 574. In Fuller vi. Crittenden, 
 
 425 ; Bird tJ. Davis, 14 N. J. Eq. 9 Conn. 401, several of the cases on 
 
 467 ; Wadsworth v. Alcott, 6 N. Y. this subject were reviewed and the 
 
 64 ; Buswell -w. Ponier, 37 id. 312 ; result declared to be, that such cir- 
 
 Dutton V. Tilden, 13 Penn. St. 46. cumstances as would lead a court of 
 
 And this is held to be the rule in equity to set aside a contract (e. g. 
 
 some of the States where the i-eceipt fraud, mistake or surprise) may be 
 
 is under seal. Jones v. Ward, 10 shown at law, to destroy the effect 
 
 Yerg. (Tenn.) 160. But in those of a receipt. 
 
 States where the distinction between * Emric v. Gilbert, 1 Wright 
 
 simple contracts and specialties is (Ohio), 764 ; Holbrooke v. Blodget, 
 
 preserved, the rule would be other- 5 Vt. 520 ; Sessions v. Gilbert, Brayt. 
 
 wise. State v. Messick, 1 Houst. (Vt.) 75; Carter v. Bellamy, Kirby 
 
 (Del.) 346. (Conn.), 291; Giddings v. Munson, 
 
 ' Harris v. Johnson, 3 Cranch (U. 4 Vt. 308. 
 
 S.), 311. " Reid v. Reid, 2 Dev. (N. C.) 247.
 
 70 EVIDENCE. [CIIAP. II. 
 
 rent lor factoiy up to " a particular day is j))'///ia facie evi- 
 dence not inorcly that the hist quarter's rent ending on the 
 day specitied was paid, but that all previous rent was paid.^ 
 Where u receipt was indorsed by the agent of the plaintitl" in 
 execution for a certain sum " in full of the within execution," 
 it Avas licld that evidence might be admitted to show an error, 
 and that the receipt was only to be in full of all the money then 
 made on the execution.^ 
 
 But where a receipt is in the nature of a contract, it is, so 
 far, within the general rule, and not liable to be varied by 
 parol evitlence.3 The receipt may be explained by parol evi- 
 dence of usage.^ A bill of lading, for example, has a two- 
 fold aspect, viz., a receipt and a contract to carry and de- 
 liver.* A carrier may show that the articles receipted in the 
 bill of lading were not in good order.** But the contract 
 embraced in the bill of lading cannot be contradicted or 
 moditied by parol evidence,'' as by proof of custom.^ You 
 cannot vary or contradict the bill of lading as to the course 
 designated in it which the vessel is to take. So a dean hill 
 of lading, which imports that the goods are stowed inider 
 deck, cannot be varied by a contemporaneous parol contract 
 that they were to be stowed on deck.^ 
 
 A receii)t of property levied on by a sheriff, containing the 
 usual promise to redeliver for the purpose of satisfying thj 
 execution, was held within the general principle applicable 
 to contracts, and not liable to be varied by parol evidence ;'" 
 and an agreement of the officer and the creditor, contempo- 
 raneous with the receipt, that they would relieve the receiptor 
 
 ' Patterson 15. Ackerson, Edw. Ch. * Wood v. Perry, 1 Wright (Ohio), 
 
 (N, Y.) 427. 240. 
 
 » Singleton v. Smith, 4 Mill. (La.) « Ellis v. Willard, 10 N. Y. 529. 
 430. ' Fitzhugh v>. Winan, 10 N. Y. 
 
 ' Queny v. White, 1 Bibb (Ky.), 559. 
 271 ; Smith v. Brown, 3 Hawks (N. •* Simmons vi. Law, 8 Bosw. (N. 
 
 C), 580; Raymond v. Roberts, 2 Y.) 213. 
 
 Aik. (Vt.) 204; Stone v. Vance, 6 » Cherry u Holly, 14 Wend. (N. 
 
 Hamin. (Ohio) 246. Bat see Potter Y.) 26 ; Barber v. Brace, 3 Conn. 9. 
 V. Hopkins, 25 Wend. (N. Y.) 417. '" Wakefield v. Stedman, 12 Pick. 
 
 * Goodyear v. Ogden, 4 Hill (N. (Mass.) 562; Bursley V. Hamilton, 
 
 Y.), 104 ; Dawson v. Kittle, id. 107. 15 id. 40.
 
 SEC. 24. j PAROL, EVIDENCE, RULES RELATING TO. 71 
 
 by taking back the property, is merged in the writing.' But 
 a recital or statement of the vaUie of the property in such or 
 the like receipts will not generally conclude the party giving 
 them, even as in favor of the other party ; otherwise, how- 
 ever, where the party giving the receipt has willfully refused 
 to return the property, or has destroyed it, etc.^ Where a 
 receipt was collateral to the instrument declared on, and used 
 by a stranger against a party, it was held that the latter 
 might contradict or vary it by parol. ^ 
 
 Indeed, in regard to mere written admissions of various 
 kinds, they are seldom, if ever, conclusive against the party 
 making: them save as in favor of some one who has been 
 drawn in to act upon the assumption of their being what 
 they import on their face. But, even as in favor of those 
 who have been drawn in to act, such admissions will not con- 
 clude, except for their own proper object, and while the 
 writing evincing them continues in force. Hence, though a 
 receiptor of property levied on by an officer will generally 
 be precluded from showing title in himself, as against the 
 officer, yet, where A. gave such a receipt, in which he 
 admitted the property to belong to S., the defendant in the 
 execution, and the property was afterwards redelivered to the 
 sheriff pursuant to the terms of the writing, it was held that 
 the receiptor was not estopped by anything in the writing, 
 or his acts, from bringing replevin on the ground of the 
 property l^eiiig his. The writing would be a strong fact 
 against his title, but not conclusive.^ The court liken the 
 case to a man's taking a lease, for a year, of his own lands. 
 During the year he shall not question the title of his land- 
 lord, but after that he may. It clearly appeared, however, 
 in this case, that the sheriff had notice of the defendant's 
 claim, both when the receipt was given -and when the prop- 
 erty was delivered in pursuance of the receipt. Had there 
 been no notice of the kind before suit brought, it may be 
 questionable whether the action could have been maintained. 
 
 ' Curtis V. Wakefield, 15 Pick. ^ Badger v. Jones, 12 Pick. (Mass.) 
 (Mass.) 437. 371. 
 
 '^ Bancroft v. Parker, 13 Pick. " Johns v. Church, 12 Pick. (Mass.) 
 (Mass.) 192. 557.
 
 72 EVIDENCE. [chap. JI. 
 
 It scoins that, in cases like that, even if the property has not 
 been delivered, and an action is brought ou the receipt, the 
 defendant may show his titU", and that the sheriff had notice 
 of it at the time of taking the receipt, in mitigation of dam- 
 ages, but not otherwise.' 
 
 A receipt for the purchase-money of a slave, containing a 
 \varraiil\- of soundness, and aeeompanied. by an order on a 
 third person for the delivery of the slave, was held to exclude 
 piirol evidence for the purpose of showing the intention of 
 the parties to be, that the title to the slave was not to vest 
 in the purcluuser till the slave was actuaJhj delivered.^ 
 
 A creditor, on a compromise with his debtor, took the 
 note of A. for an amount less than his debt, by way of pay- 
 ment, and indorsed on a note he held against the debtor an 
 acknowledgment of the receipt of A.'s note as a coinpromise 
 for the full payment of the debtor's note. It was held that, in 
 an action subsequently brought by the creditor against the 
 debtor, the former could not give parol evidence that, in 
 addition to A.'s note, a further sum was agreed to be paitl 
 him by the dc])tor.3 
 
 Where a receipt was of a sum/br safe heejiing, it was held 
 that it could not be contradicted by evidence that the money 
 was imid.'^ Nor can the legal effect of special receipts in the 
 nature of a contract be varied by parol. ^ 
 
 A technical release from all demands, etc., will estop the 
 party, and its operation cannot be varied by showing that a 
 l)articular demand was not intended to be included.^ 
 
 Sec. 25. Riile as to Admission of Parol Evidence relating to Sur- 
 rounding Circumstances. 
 
 The rule that parol evidence is admissible to explain and 
 applg a icrHiug, vjJicre it does not contradict or vary it, is 
 universal in its application, and is in accordance with another 
 rule which is well recognized, that a writing may be read in 
 
 ' Bui-><ley 1). Hamilton, 15 Pick. * Tisloe v. Graefer, 1 Blackf. 
 
 (iAaxH.) 40. (Intl.) 353. 
 
 ' Franklin v. Long, 7 G. & J. "^ Stone v. Vance, & Hamm. (Ohio) 
 
 (M(l.) 407. 246. 
 
 ' KelloR-g V. Richards, 14 Wend. « Pierson v. Hooker, 3 John. (N. 
 
 (N. Y.) 116. Y.) 68.
 
 SEC. 25.] PAROL EVIDENCE, RULES RELATING TO. 
 
 73 
 
 the light of surrounding circumstances in (yrder that the true 
 intent and meaning of the ^parties may be arrived at,^ and 
 that independent and collateral facts, about which the con- 
 tract is silent, may bo shown by parol.^ 
 
 The surrounding circumstances, and subsequent conduct 
 and acts of the parties, are material and competent to show 
 the intcrpretalion Avhich they put on an agreement, and 
 what conditions they have waived.'* 
 
 It is allowable also, in many instances, to show in evi- 
 dence pre-existing and contemporaneous f^icts and circum- 
 
 ' In Robinson v. Bamett, 18 Fla. 
 602, at the maturity of a note the 
 holder demanded payment of the 
 aj^parent indorser, but he refused, 
 alleg'ing' that the indoi'sement was 
 forged, but to save the expense of 
 protest, he wrote over the indorse- 
 ment the words "protest waived," 
 and in an action ag-ainst him e\d- 
 dence of these facts was held ad- 
 missible. Emeiy v. Webster, 42 
 Me. 204 ; Knight v. N. E. Worsted 
 Company, 2 Cush. (Mass.) 271 ; 
 Barnabee v. Suaer, 18 La. An. 148 ; 
 Pierson v. Atlantic Bank, 77 N. Y. 
 304 ; Spencer v. Babcock, 22 Barb. 
 {N. Y.) 32ti ; Reader v. Helms, 57 
 Ala. 440. 
 
 " Keogh V. McNitt, 6 Minn. 513. 
 
 ' Acker v. Bender, 33 Ala. 230 ; 
 S. P. Cross V. Pearson, 17 Ind. 612 ; 
 Emery v. Webster, 42 Me. 204; 
 Orant v. Lathi-op, 23 N. H. 67; 
 Halsted v. Meeker, 15 N. J. L. 136 ; 
 Haldeman v. Chambers, 19 Tex. 1 ; 
 Conner v. Carpenter, 28 Vt. 237; 
 Ratcliffe v. Allison, 3 Rand. (Va.) 
 537 ; Sigerson v. Cushing, 14 Wis. 
 527 ; Carmony v. Hoober, 5 Penn. 
 St. 305. Evidence in explanation of 
 an authentic act is admissible where 
 it does not contradict, vary, alter, 
 enlarge, or restrict the act. Barna- 
 bee t>. Suaer, 18 La. Ann. 148. And, 
 though not admissible to add to or 
 vary the tenus of a written con- 
 tract, it is admissible to prove facts 
 
 and circumstances as to the rela- 
 tions of the parties, and the nature, 
 quality, and condition of the prop- 
 erty, which is the subject of the 
 contract ; and also the acts of the 
 parties at and subsequent thereto, 
 for the pui-pose of showing their 
 understanding of its terms. Knight 
 V. New England Worsted Co., 2 
 Cush. (Mass.) 271. Thus, where 
 upon a partition between co-heirs, a 
 way is assigned to one, and upon 
 the ev-idence it is uncertain which 
 of two routes was intended, evi- 
 dence is admissable of any circum- 
 stances or acts of the parties or of 
 the commissioners indicating such 
 intention. French v. Hayes, 43 N. 
 H. 30. Such extrinsic facts, exist- 
 ing at the time a written contract is 
 made, are admissible to aid in the 
 interpretation of the instrument, 
 although not to contradict it Phelps 
 V. Bostwick, 22 Barb. (N. Y.) 314; 
 Spencer t). Babcock, id. 326. And 
 in construing a written instrument, 
 the situation of the parties and the 
 natui'e and object of their transac- 
 tions may be looked at ; but the 
 court cannot give effect to any inten- 
 tion which is not expressed by the 
 language of the instrument lohen 
 looked at in the light of facts that are 
 %)ro]ierly before the court. Farmers', 
 &c., Co. V. Commei-cial Bank, 15 
 Wis. 424.
 
 7 4 EVIDENCE. [chap. II. 
 
 stances attending the negotiations of the parties in making the 
 contract, as snch facts often throw light upon the disputed 
 contract itself.' Mr. Wigram'^ says, " Every claimant under 
 a will hasa right to require that a court of construction in the 
 exccutionofitsotHceshalljby means of extrinsic evidence, place 
 itself in the situation of the testator, the meaning of whose 
 language it is called upon to declare ; " and this rule applies 
 with ((jiial force to ail classes of instruments, as all writings 
 arc prcsumccl tacitly to refer to the circumstances existing 
 Avlicn the}' were niade,^ and it is upon this principle that 
 evidence of customs and usages is admitted iu aid of the 
 interpretation of instruments, as "the law is not so unrea- 
 sonable as to deny to the I'eader of any instrument the same 
 light which the writer enjoyed," bearing in mind, however, 
 that a writing cannot be added to or cut down Ijy the testi- 
 mony of witnesses. 
 
 Sec. 26. Parol Evidence to prove Collateral Matters. 
 
 Tarol evidence may be said to be primary where the writ- 
 ing is not admissible to prove the facts to establish which 
 tlie oral proof is ottered, "* or where it is offered to establish 
 a matter collateral to or distinct from the writing,* as, the 
 consideration, or failure of the consideration, of a guaranty,^ 
 notc,"^ or other contract^ or obligation,^ where the considera- 
 
 ' Pierson v. Atlantic Bank, 77 N. missible. See also Sigerson v. Cush- 
 
 Y. 304 ; Barnebe v. Suaer, 18 La. ing-, 14 Wis. 527 ; Lyon v. Kidder, 
 
 An. 148 ; Reader v. Helms, 57 Ala. 48 Vt. 42. 
 
 440. In Coml. Bank of Albany v. « Wig-ram on Extr. Ev. 59, 138. 
 Clark, 28 Vt. 325, the defendant ^ Wigrani on Extr. Ev. 57. 
 ■was sued as indorser of a bill of * Sparks v. Rawls, 17 Ala. 211. 
 exchange. The notice of its dis- ' Shiel v. Starke, 14 Ga. 429. 
 honor was jiroved by his written « Nichols -jj. Bell, 1 Jones (N.C.) 
 
 acknowledgment that he did receive L. 32. 
 
 due and legal notice of the protest ' Long v. Davis, 18 Ala. 801 ; 
 
 and non-payment of the bill. The Beckels v. Cunningham, 14 Miss, 
 
 question in the case was, whether 358 ; Smith v. Crooks, 18 Ga. 440 ; 
 
 this wi-itten acknowledgment was Herrick v. Bean, 20 Me, 51. 
 conclusive, or whether he could " Cowan v. Cooper, 41 Ala. 187. 
 phow that in fact no such notice of " Andrews v. Andrews, 12 Ind. 
 
 protest was ever given, ?ie having 348 ; Groesbeck v. Seeley, 13 Mich. 
 
 sirrnerltheadmim^ionunder amlsap- 329 ; Estabrook v. Smith, 6 Gray 
 
 prehev.tion of the facts. The court (Mass.), 572 ; Harwood v. Harwood, 
 
 held that there was nothing in the 22 Vt. 507. 
 case to render the testimony inad-
 
 SEC. 26.] PAROL EVIDENCE, RULES RELATING TO. 75 
 
 tioii is not specifically stated in the instrument.' Such evi- 
 dence is admissible to identify the subject-matter of the 
 contract or deed or other instrument, and apply it thereto,^ 
 where the instrument itself does not sufficiently show to 
 which of two or more things it applies. So, too, it is admis- 
 siJjle to prove matters collateral to the agreement which 
 are not repugnant therewith. Thus, while it is a well settled 
 rule that parol evidence cannot be admitted to contradict or 
 vary the terms of a written instrument, and that a convey- 
 ance cannot be shown by parol to be to another use or intent 
 than that expressed in it, yet parol evidence may be admit- 
 ted to^wove a collateral arjreement connected ivith stipulations 
 in a deed, and in no respect repugnant to it. As where A., 
 B. and C. were partners, and A., without consulting his co- 
 partners, acting as the agent of D., his brother, fraudulently 
 applied souie of the funds of the partnership to the use of 
 D., and D., by his deed, reciting that A. was largely indebted 
 to B. and C, which indebtedness he had agreed to discharge, 
 etc., — it was held, that the amount of this indebtedness, 
 which was not stated, might be shown by parol evidence.^ 
 
 So, too, where an agreement is entered into between two 
 or more sureties or indorsers on a note that they will divide 
 the loss between them, in an action by the one who has paid 
 the note against the other upon such agreement, parol evi- 
 dence is admissible to prove it.-* In Indiana-^ it has been 
 held that the grantor of land, who has sold it by warranty 
 deed, may, although the grantee entered into possession at 
 once, and although the deed contained no mention thereof, 
 show a parol reservation of a growing crop f and in Penn- 
 
 ' Wood v. Beach, 7 Vt. 522 ; Merle brand v. Tagle, 20 Ohio, 147 ; Gould 
 
 V. Matthews, 26 Cal. 455 ; White v. v. Lee, 55 Penn. St. 99 ; Robinson v. 
 
 Weeks, 1 Penn. 486 ; Myer v. Casey, White, 42 Me. 209 ; McGregor v. 
 
 57 Miss 615; Cornell v. Markham, Brown, 5 Pick. (Mass.) 170; Hardy 
 
 19 Hun (N. Y.), 275 ; De Lavalette v. Matthews, 38 Mo. 121. 
 
 V. Wendt, 75 N. Y. 579. ^ Pomery v. Manin, 2 Paine (U, 
 
 * Norris ». Shaflford, 127 Mass. 85"; S.), 476. 
 
 Chicago Dock, &c., Co. v. Kinzie, * Phillips -y. Preston, 5 How. (U. 
 
 93 111. 415; Hannah v. Shirley, 7 S.) 278. 
 
 Oregon, 115 ; Ames v. St. Paul, &c., ^ Harvey v. Millier, 67 Ind. 90. 
 
 R. R. Co., 12 Minn. 412; Earnhardt « Ovei-ruling Chapman v. Long, 
 
 V. Riddle, 23 Penn. St. 93 ; Hilde- 10 Ind. 465.
 
 7(J EVIDKNCE. (ciIAP. II. 
 
 sylv:ini:i' it luis been held that parol evidence i.s admissible 
 to show that 11 heater and ga.^ hxture were to pass to the 
 purchaser of a house, under a written agreement in which 
 no mention was made of such articles. 
 
 So too, it liius been held that, as between an indorser and 
 his immediate indorsee, oral evidence is competent to show a 
 waiver of demand and notice of non-payment at the time of 
 indorsin*'- in blank,'^ But such evidence is not admissible as 
 aL^ainst third persons into whose hands the note may pass in 
 due course of business, because they have a right to rely up- 
 on the obligation which the hnv implies from a blank in- 
 dorsement, and are not bound l)y any private contract or 
 arrano-ement made between other parties to the note, which 
 does not appear thereon.^ This doctrine is not, apparently, 
 in accordance with the general drift of the authorities,^ but 
 it seems to us that neither its justice or soundness can be 
 questioned, as the only eiiect of the evidence is to show a 
 waiver by one party of a legal right, and not an addition 
 to, or alteration of, the contract itself ; and that a waiver of 
 a right may l)e proved by parol, whether arising under a 
 contract, deed, or by operation of law, has been repeatedly 
 held by our courts.^ But, of course, such a waiver is only 
 eflectual, so far as a negotiable instrument is concerned, be- 
 tween the innnediate parties to the agreement. Nor is evi- 
 dence of any collateral agreement admissible even between the 
 parties, which in any manner varies or changes the terms of 
 the contract. Thus, evidence is not admissible to show that 
 the payee of a note, at the time of transferring it, by indorse- 
 
 ' Heyahamv. Dettre, 89 Penn. St. " Bartlett v. Lee, 33 Ga. 491; 
 
 506. Bank of U. S. v. Dunn, 6 Pet. (U. S.) 
 
 ' Dye V. Scott, 35 Ohio St. 194 ; 51 ; Dale v. Gear, 38 Conn. 15. 
 3.J Am. Rep. 604. See § , Bills ^ Ruffinsberger v. Callison, 28 
 
 and Notes, post. See also Davis Penn. St. 426 ; Willey v. Hall, 8 
 
 V. Morgan, 64 N. C. 540 ; Meuden- Iowa, 62 ; Wood v. Perry, 1 Barb, 
 
 hall 1). Davis, 72 id. 150, in which it (N. Y.) 114; Bryan v. Hunt, 4 
 
 was held that parol evidence is ad- Sneed (Tenn.), 543 ; Chiles v. Jones, 
 
 missible to annex qualifications, or 8 B. Mon. (Ky.) 51 ; Parker v. 
 
 a special contract even, as between Syracuse, 31 N. Y. 376 ; Leathe v. 
 
 the immediate parties under a blank BuUard, 8 Gray (Mass. ), 545 ; Medo- 
 
 indoi-sement. mok Bank v. Curtis, 24 Me. 36. 
 
 ' Dye V. Scott, ante.
 
 SEC. 2!^.] PAKOL EVIDENCE, RULES RELATING TO. 77 
 
 meiit, onilly agreed to assiunc the payment of it absolutely 
 and unconditionally,' nor that it was agreed between them 
 that the iudorsers should not be liable.^ And generally it 
 may be said that parol proof of any collateral parol agreement 
 may he given, which does not interfere ivith the terms of the 
 written contract, although it may relate to the same subject- 
 matter.^ Where the parol agreement is merely collateral to 
 the principal agreement, and independent of it, it may be 
 made the ground of an action for recoupment or abatement 
 of damages, and may be established hy parol. Thus, in a 
 Massachusetts case,^ at the time of the negotiation for the 
 purchase of land, a sewer was in process of construction in 
 the street on wliich the land abutted. The purchaser called 
 the owner's attention to' it, and asked him who was to pay 
 for the sewer, to which the owner replied that he would, 
 and that the other party should not be called upon to pay a 
 cent for it. A deed of the land was subsequently given, 
 with the usual covenants of warranty, but no mention was 
 made of the sewer. The purchaser afterwards paid an assess- 
 ment for the construction of the sewer, and in an action by 
 him against his grantor to recover the amount paid, it was 
 held that evidence of the conversation and existing circum- 
 stances was sufficient to prove the promise, and that it was 
 not open to the oljjection that it varied or enlarged the 
 written instrument.^ 
 
 Sec. 27. To show Fraud, Illegality, Duress, Etc. 
 
 The rule excluding this class of proof to explain, vary or 
 control a written contract does not apply, even in a court of 
 law, where it is claimed that a material part of it has been 
 inserted by the fraud of one of the parties,^ or that a material 
 
 ' Rodney v. Wilson, 67 Mo. 123 ; * Baltimore, &c., Steamboat Co. 
 
 29 Am. Rep. 499 ; Doolittle v. Ferry, v. Bro^vn, 54 Penn. St. 77 ; Towi- 
 
 20 Kan. 230 ; 27 Am. Rep. 166. send v. Cowler, 31 Ala. 428 ; Hol- 
 
 "" Hill V. Shields, 81 N. C. 2.50. brook v. Burt, 22 Pick. (Mass.) 546 ; 
 
 * Ruggles V. Swanwick, 6 Minn. Hamilton v. Cong-er, 28 Ga. 276 ; 
 526; Joannes v. Mudge, 6 Allen Stark v. Littlepag-e, 4 Rand. (Va.) 
 (Mass.), 245. 368 ; Gatling- v. Newell, 9 Ind. 572 ; 
 
 * Carr v. Dooley, 119 Mass. 294. Hunter v. Bilg-en, 30 111. 228 ; Far- 
 
 * See, also, McCormick v. Cheev- rell v. Bean. 10 Md. 217 ; Sanford v. 
 ers, 124 Mass. 262. Handy, 23 Wend. (N. Y.) 260 ; Davis
 
 78 
 
 EVIDENCE. 
 
 [CIIAP. II. 
 
 l):irt of the contract was omitted by the fraud of one of the par- 
 tics ; ' or that the writing has been altered in a material respect.'^ 
 If a person who cannot read or write, or who cannot speak 
 or read the huiguage in which a note or other obligation is 
 written, is induced to place his signature thereto upon the 
 assurance by the other party that it is an instrument of a 
 diflerent character from what it in fact is, or that it contains 
 provisions of a diilerent character from what it in fact does 
 contain, parol evidence is admissible to show the facts, not 
 to vary or control the writing, but to show that no such con- 
 tract was in fact entered into, and such evidence is no more 
 oljnoxious to the general rule excluding parol evidence than 
 is evidence to show that a party's signature to the instru- 
 ment is a forgery. The object in both cases is the same, that 
 is, to show that no such contract as is sued u[)on was ever 
 entered into by the party sued.^ If a material part has been 
 inserted or omitted by the fraud of one of the parties, this 
 
 V. Stern, 15 La. An. 177 ; Hunt v. 
 Can-, 3 Iowa, 581 ; Selden v. Myers, 
 20 How. (U. S.) 506 ; Van Buskirk 
 V. Day, 22 111. 260 ; Han-ell v. Hill, 
 11) Ark. 102 ; Mallory v. Leach, 36 
 Vt. 156. But it is not proper to 
 show that the parties agreed that 
 the writing .should be a sham. Con- 
 nor V. Carpenter, 28 Vt. 237. It is 
 proper to show that the party's sig- 
 nature was procured by fraud. Lull 
 V. Cas.s, 43 N. H. 62 ; Christ v. Dif- 
 fenbach, 1 S. & P. (Penn.) 464 ; Pren- 
 tice V. Russ, 16 Me. 30. This rule 
 applies as well to deeds or other 
 instruments under seal as to simple 
 contracts, and a deed may be avoid- 
 ed by showing that it was misread 
 or its purport falsely declared to the 
 grantor at the time of its execution. 
 Doe ■». Farlee, 22 N. J. L. 289; 
 Anthony v. "Wilson, 14 Pick. (Mass.) 
 303 ; Farmers', &c., Bank ti. "Whin- 
 field. 24 Wend. (N. Y.) 419; Chest- 
 nut Hill, &c., Co. V. Chase, 14 Conn. 
 123 ; or according to some of the 
 cases that its execution was obtained 
 
 by fraudulent misrepresentations as 
 to the consideration of the instru- 
 ment. Bliss V. Thompson, 4 Mass. 
 492 ; Somer v. Skinner, 16 id. 348 ; 
 Hazard v. Erwin, 18 Pick. (Mass.) 
 95 ; Hoitt v. Halcomb, 23 N. H. 
 535 ; Chew v. Moffatt, 6 Munf. (Va.) 
 120 ; Leonard v. Bates, 1 Blackf. 
 (Ind.) 172 ; but contra, see Vrooman 
 V. Phelps, 2 John. (N. Y.) 177; Tay- 
 lor V. King, 6 Munf. (Va.) 358 ; Don- 
 aldson V. Barton, 4 D. & B. (N. C.) 
 435 ; Rogers v. Colt, 1 N. J. L. 714. 
 
 * Chitwood V. Brittain, 2 N. J. Eq. 
 438 ; Phyfe v. "Wardwell, 2 Edw. 
 Ch. (N. Y.) 47 ; Watkins v. Stockett, 
 6 H. & S. (Md.) 435 ; Blanchard v. 
 Moore, 4 J. J. Mar. (Ky.) 471 ; El- 
 liott V. Connell, 13 Miss. 91 ; Ander- 
 son V. Bacon, 1 A. K. Mar. (Ky.) 
 48. 
 
 » Buck V. Appleton, 14 Me. 284. 
 
 ^ Van Buskirk v. Day, 22 111. 260 ; 
 Christ V. Diflfenbach, 1 S. & R. 
 (Penn.) 464; Champion V. "White, 5 
 Cow. (N. Y.) 508.
 
 SEC. 27.] PAROL EVIDENCE, RULES RELATING TO. 
 
 79 
 
 furnishes an exception to the rnle, and parol proof is admis- 
 sible to establish the fact.^ The effect of this evidence 
 is to show that the writing is void or that it never had 
 any legal existence.^ The same rule prevails as to illegality, 
 and in an early case ^ it was established that illegality may 
 be pleaded as a defense to an action upon a deed, and con- 
 sequently to any contract, whether under seal or not ; and in 
 a later case^ it was held that an obligor of a bond may show 
 that it was given upon an illegal consideration, whether con- 
 sistent with the condition of the bond or not. It may be said 
 that parol proof is admissible to sliow that a written contract, 
 though clothed in due form, and conferring apparently a just 
 right, contravenes a prohil)itory law in the interest of public 
 morals, and so is a nullitj'. Thus, the State may show, in a con- 
 test for a succession with a duly acknowledged natural child, 
 that the latter is the oflspring of an adulterous connection.^ 
 Indeed, parol evidence is admissible whenever the oblio-ation 
 IS one contracted in fraudem legis. It is immaterial what 
 form may have been given to the reprobated contract.^ 
 
 ' Waddell ?>. Glaseell, 18 Ala. 561 ; 
 Bottomley v. United States, 1 Story 
 (U. S. C. C), 135 ; Townsend-y. Cow- 
 ler, 31 Ala. 428 ; Lunday v. Thomas, 
 26 Ga. 538; Pierce v. Wilson, 34 
 Ala. 596 ; Hamilton v. Congers, 28 
 Ga. 276 ; Gatling- «. Newell, 9 Ind. 
 572 ; Stannard v. McCarty, 1 Morr. 
 (Iowa) 124 ; Hmit v. Carr, 3 Iowa, 
 581 ; Akin v. Drummond, 2 La. An. 
 92; Morris v. Terrenoire, id. 458; 
 Williams v. Vane, id. 908; Rachal 
 V. Rachal, 4 id. 500 ; Gayoso v. Dela- 
 roderie, 9 id. 278; Davis v. Stern, 
 15 id. 177; Garrett v. Crooks, id. 
 483; Barbin v. Gaspard, id. 439; 
 Farrell v. Bean, 10 Md. 217 ; Hol- 
 brook V. Burt, 22 Pick. (Mass.) 546; 
 Sanford v. Handy, 23 Wend. (N. Y.) 
 1260; Bartle v. Vasbury, 2 Grant 
 (Penn.) Cas. 277 ; Hunter v. Bilyen, 
 30 111. 228 ; Baltimore, &c.. Steam- 
 boat Co. V. Brown, 54 Penn. St. 77 ; 
 Stark V. Littlepage, 4 Rand. (Va.) 
 368. In equity, parol evidence is 
 
 admissible to prove fraud, or mis- 
 take, or surprise in a written agree- 
 ment. But the evidence must be 
 strong and clear. Hunt v. Rous- 
 nianier, 8 Wheat. (U. S.) 174; Mc- 
 Mahon v. Spankler, 4 Rand. (Va.) 
 51. Parol testimony is admissible to 
 show that the party was fraudulent- 
 ly deceived and misled as to the con- 
 tents of the written instrument. 
 Selden v. Myers, 20 How. (U. S.) 
 506. 
 
 * Paxton V. Popham, 9 East, 421 ; 
 Collins V. Blantern, 2 Wils. 341 ; 
 Martin v. Clarke, 8 R. I. 389 ; Lep- 
 poe V. Nat'l Union Bank, 32 Md. 
 136. 
 
 ^ Collins V. Blantern, ante ; Cor- 
 bin V Sistrunk, 19 Ala 203. 
 
 * Paxton V. Popham, ante. 
 
 '■ Succession of Fletcher, 11 La. 
 An. 59. 
 
 ^ Lazare v. Jacques, 15 La. An. 
 599.
 
 80 EVIDENCE. (chap. II. 
 
 Ciicuiubtunccs which go to .show that a deed or other writ- 
 ten iustnniieiit was never duly executed by the party, may 
 alwa\.s he shown, as that the writing was misread, or that one 
 instruuuiit wa.s substituted for another, and thus, that his 
 >i"-nature thereto was fVauduh'iitly obtahied,' or that in read- 
 nig the instrument, a material part of it was suppressed,^ or 
 nideed aiiv act of the other party whicli amounted to such 
 a iVand upon the party execiiting the instrument, that it is 
 not the instrument which he designed to execute.^ Upon 
 the same principle, parol evidence is admissible to show that 
 at tlu> time when the instrument was executed, the party 
 executing it had not the capacity to do so, in order to 
 neirative the idea that it is his deed or contract.^ as that he 
 was a lunatic ;^ or so intoxicated as not to know wiiat he was 
 doiuL" ;'' or that it was executed mider duress ;' or that the 
 party was under some legal disability, as coverture^ or 
 infancy.^ It may also be shown that the deed was never 
 duly received ; or was delivered merely as an escrow ; or to 
 take etl'ect only on a contingency which has not happened ; 
 or that the grantee obtained it fraudulently, or in an im- 
 proper manner, etc. This species of evidence has never been 
 considered as coming within the rule which rejects parol 
 proof, when offered to contradict a deed.'<^ In Massachu- 
 
 ' Owen's Case, 1 Bland Ch. (Md.) * Dale v. "Roosevelt, aJite ; Barrett 
 
 391 ; Van Valkenburg'h v. Rourk, v. Buxton, 2 Aik. (Vt.) 167; Pren- 
 
 12 John. (N. Y.) 337; Swisher v. tice v. Osborn, 2 Paige Ch. (N. Y.) 
 
 Williiinis, 37 Penn. St. 754. 31 ; Rice v. Peat, 15 John. (N. Y.) 
 
 ' Morton v. Chandler, 8 Cow. (N. 503. 
 Y.) 10 ; Franchot v. Leach, 5 id. ' Worcester v. Eaton, 13 Mass. 
 508 ; Creery v. Holly, 14 Wend. (N. 371 ; Stauffer v. Latstraw, 2 Watts 
 Y.) 26 ; Tribble v Oldham, 5 J. J. (Penn.), 165 ; Burroughs v. Rich- 
 Mar. (Ky.) 141. man, 1 Me. 233; Richardson v. 
 
 * SAVAfiE, J., in Franchot v. Duncan, 3 N. H. 508 ; Jackson v. 
 Leach, ante. Myers, 11 Wend. (N. Y.) 536. 
 
 * Champion v. White, 5 Cow. (N, ® Dale v. Roosevelt, ante. 
 
 v.) 510. » Van Valkenburgh v. Rourk, 12 
 
 * Dale V. Roosevelt, 9 Cow. (N. John. (N. Y.) 338. 
 
 Y.) 310 ; Den v. Clark, 10 N. J. L. '» Roberts v. Jackson, 1 Wend. (N. 
 
 217 ; rirant v. Thompson, 4 Conn. Y.) 484 ; Titus v. Myers, 11 id. 536 ; 
 
 203: J.'-^-«r..i ,.. King, 4 Cow. (N. Clark u Giflford, 10 id. 310. 
 Y.) 207: Mitchell ?j. Kingman, 5 
 Pick. (M iss.) 481.
 
 SEC. 28.] PAROL EVIDENCE, RULES RELATING TO. 81 
 
 setts, if a deed with the regular evidence of complete and 
 unqualified execution on its face, has been signed, sealed and 
 delivered to the party, parol evidence of a contemporaneous 
 agreement or understanding that it should not take eftect 
 until a certain event, is inadmissible, as going to vary the 
 terras of the deed, and make that conditional which appeared 
 to be absolute. ^ It is not competent to establish, under pre- 
 tense of delivery as an escrow, conditions in the contract 
 itself, difierent from its face, and repugnant to it.^ A surety, 
 in a joint and several bond, it has been held, may, when sued, 
 show that he signed it on condition that others, besides those 
 whose names are to it, would execute it, and that their sig- 
 natures were not procured.^ The principal was intrusted 
 to procure the signatures in this case, and it does not appear 
 that the obligees were in any manner apprised of the con- 
 ditional delivery. In Louisiana a similar point arose, and 
 the court held, that as there was nothing on the face of the 
 bond showing that other signatures were intended, the surety 
 could not avail himself of the breach of trust on the part of 
 the principal, to defeat a recovery by the oblio-ees.^ 
 
 Sec. 28. Failure of Consideration. 
 
 The imnt or failure of consideration may also be proved 
 by parol evidence showing that the wi'itten agreement is not 
 binding, ° unless it is under seal, which, in the absence of 
 fraud, is conclusive evidence of a sufficient consideration.^ 
 
 * Ward V. Lewis, 4 Pick. (Mass.) guise of prov-ing the consideration 
 518 ; Dix v. Otis, 5 id. 38. of a contract by parol, add to or 
 
 ^ State V. Perry, 1 Wright (Ohio), subtract from the written contract 
 
 ^^2- in any of its provisions. Howe v. 
 
 " United States v. Leffler, 11 Pet. Walker, 4 Gray (Mass.), 318 ; Munde 
 
 (^' ^-^ ^^- V. Lambie, 122 Mass 336 ; Foster v. 
 
 * Police Juiy v. Haw, 1 Mill. Jolly, 1 C, M. & R. 707; Solly v. 
 (^f -^ *1- Hinde, 2 Cr. & M. 516 ; Abbott v. 
 
 Bickels V Cunningham, 14 Miss. Hendricks, 1 M & Cxr. 791. 
 358 ; Long v. Davis, 18 Ala. 801 ; « Holbrook v. Holbrook, 30 Vt. 
 
 Hernck «. Bean, 20 Me. 51 ; Smith 432 ; Johnson v. Bayles, 26 Ala. 576 ; 
 
 v. Brooks, 18 Ga. 440; Great West- Morris, &c., Co. v Ryerson, 27 N. 
 
 em Ins Co. of Aurora v. Cobb, 21 J. L 457 ; Morse v. Shattuck, 4 N. 
 
 Ind. 492 ; Collier v. Mahan, 21 id. H. 229 ; Kumler v Ferguson, 7 
 
 110. A person cannot, under the Minn. 442 ; Swafford v. Whipple, 3 
 
 6
 
 82 
 
 EMDENCK. 
 
 [ciIAI'. 11. 
 
 Kilt if )io c(»ii.si(lor!ili()ii is slalcd in the deed or contract, the 
 parlv will l>c allowed to prove one by extrinsic evidence ;* 
 niid if the deed is expressed to l)e made " for divers good 
 considerations," it may he averred and proved by parol that 
 the bargainee gave money for his l)argain.^ But if an instru- 
 ment under seal speciiies any particular consideration, as, for 
 instance, love and aflfection, and omits all mention of any 
 other consideration, no extrinsic proof of another can in 
 general l)e given, because such proof would contradict the 
 <lecd.' Still, if the ol)ject is to establish or negative the 
 existence of fraud, such proof Avill be admissible. Thus, 
 "where a conveyance purported to have been made in consid- 
 eration of a certain sum and natural love and affection, in a 
 suit to set it aside, extrinsic evidence ^vas held admissible to 
 diow that the estates were worth much more than that sum, 
 ;iiid that natural love and atfection constituted no i)art of the 
 real consideration.'* So, where a father assigned his house 
 and personalty to his sou by deed, " in consideration of nat- 
 ural love and atfection." and afterwards the sheriff seized 
 
 Iowa, 201 ; Lawton v. Buckingham, 
 15 id. 22 ; Emmons v. Littlefield, 13 
 Me. 233 ; Bennett v. Solomons, 6 
 Cal. 134 ; Strawbridge v. Cartledge, 
 7 Watts (Penn ), 394; Elyw. Alcott, 
 4 Allen (Ma.s.s.), 50tj ; Jones v. Jones, 
 12 Ind. 389. 
 
 ■ Peacock v. Monk, 1 Ves. Sr. 128 ; 
 M.'i-ie V Matthews, 2« Cal. 455 j 
 Wood V. Beach, 7 Vt. 32 ; Frink v. 
 Green, 5 Barb. (N. Y.) 455; "White 
 «. Weeks, 1 Penn. 486. 
 
 » 2 Ph. Ev 353 ; Tull v. Parlett, 
 M. & M. 472 ; Benedict v. Lynch, 1 
 John. Ch. (N. Y.) 370; Chesson v. 
 Pettijohn, 6 Ii-ed. (N. C.) L. 121; 
 Pnmeroy v. Bailey, 43 N. H. 118; 
 Noi-i-ia V. Ham, R. M. Charlt. (Ga ) 
 2*57. 
 
 ' Peacock v. Monk, 1 Ves. Sr. 128 ; 
 Gale V. WilUamson, 8 M. & W, 408 ; 
 EUinger v. Crowl, 17 Md. 301 ; Har- 
 rison V. Ca.stner. 11 Ohio St. 339; 
 Thomburgh v. Newcastle, &c., R. 
 
 R. Co., 14 Ind. 499 ; Mead v. Steger, 
 5 Port. (Ala.) 498; Hendricks v 
 Crowley, 31 Cal. 4'jl ; Lutbnrrow v. 
 Henderson, 30 Ga. 482. A recital in 
 a note that it was given for the jmr- 
 chase-money of land may be contra- 
 dicted by parol evidence, even be- 
 tween the parties. Hicks v. Morris, 
 57 Tex. 658 ; S. P. Lawe v. Thomp- 
 son, 86 Ind. 503 ; Bragg v. Stanford, 
 82 id. 254. 
 
 * Filmer v. Gott, 7 Bro. P. C. 70 ; 
 R. V. Scammonden, 3 T. R. 475. Pa- 
 rol evidence is held to be admissible 
 to show a consideration in addition 
 to that named in the deed. Vail v. 
 McMillan, 17 Ohio St. 617 ; Haydcn 
 V. Meutzer, 10 S. & R. (Penn.) 329; 
 Miller v. Goodwin, 8 Gray (Mass.), 
 542; Peny v. Central, &c., R. R. 
 Co., 5 Caldw. (Tenn.) 138 ; Hender- 
 son V. Dodd, 1 Bailey (S. C.) Ch. 
 138.
 
 SEC. 29.] PAROL EVIDENCE, RULES RELATING TO. 83 
 
 part of the personalty under a /. fa. against the fother, the 
 son, in proceeding against the sheriff, was permitted to give 
 evidence of a vaUiable consideration, and thus to rebut the 
 presumption of fraud against creditors, which a deed made 
 by a debtor in consideration of natural love and affection 
 prhna facie imports.^ 
 
 Notwithstanding the acknowledgment in a deed of tlie 
 receipt of the pnrchase-money, it may be shown by parol 
 that it was not in fact paid, or that it was paid by money or 
 property, as it is nothing more than a receipt, and is open to 
 explanation.^ Its only effect is to estop the grantor from 
 setting up a want of consideration, and for every other pur- 
 pose it is open to explanation, and may be varied by parol 
 proof.' 
 
 •3 
 
 Sec. 29. Mistake in Instrument. 
 
 Courts of equity will also sometimes admit parol evidence 
 to contradict or vary a writing, where, by some mistake in 
 fact, it speaks a different language from what the parties 
 intended, and where, consequently, it would be unconscien- 
 tious or unjust to enforce it against either party according to 
 its expressed terms.^ In all cases, however, of this kind, the 
 
 ' Gale v. Williamson, 8 M. & W. son, 15 Mass. 85 ; Wilkinson v. Scott, 
 
 405 ; Pott V. Todhunter, 2 Coll. C. 17 id. 249 ; Clapp v. Linell, 20 Pick. 
 
 R. 76; Drury-y. Ti-emont Improve- (Mass.) 247; Speer 11. Speer, 14 N. 
 
 ment Co., 13 Allen (Mass.), 168; J. Eq. 240; Herbert v. Scofield, 9 
 
 Lamb v. Donovan, 19 Ind. 40; N. J. Eq. 492 ; Shepai-d 11. Little, 14 
 
 Gelpcke V. Blake, 19 Iowa, 263. Johns. (N. Y.) 210; Whitbeck v. 
 
 '^ Elder V. Hood, 38 111. 533 ; Vau- Whitbeck, 9 Cow. (N. Y.) 266; 
 
 g-ine v. Taylor, 18 Ark. 65 ; Coles v. Baker «. Connell, 1 Daly (N. Y.), 
 
 Soulsby, 21 Cal. 47 ; Millard v. Hath- 469 ; Wesson «. Stevens, 2 Ired. (N. 
 
 away, 27 id. 119; Callayway v. C.) Eq. 557; Deloach v. Turner, 6 
 
 Heara, 1 Houst. (Del.) 607; Bratt Rich. (S. C.) 117; Gibson v. Fifer, 
 
 V. Bratt, 21 Md. 578 ; Harris v. Har- 21 Tex. 260 ; White v. Miller, 22 Vt. 
 
 ris, 2 Harr. (Del.) 354; Ayers v. 380. 
 
 McConnel, 15 111. 230 ; Kimball v. ^ Stackpole v. Robbins, 47 Barb. 
 
 Walker, 30 HI. 482 ; Halt v. Perry, (N. Y ) 212. 
 
 3 Iowa, 579 ; Barbank v. Gould, 15 * Hunt v. Rousmanier, 8 Wheat. 
 
 Me. 118; Bassett v. Bassett, 55 Me (U S.) 211 ; Peterson v. Grover, 20 
 
 127; Elysville Co. v. O'Kisko Co., 1 Me 363; Anderson v. Bacon. 1 ;A. 
 
 Md. Ch. 392 ; Spalding v. Brent, 3 K. Mar. (Ky.) 48 ; Huston 71. Stoble. 
 
 id. 411; Lirgun v. Henderson, 1 4 J. .1. Mar. (Ky.) 130; Blanchard 
 
 Bland (Md.), 236 ; Davenport v. Ma- v. Moore, 4 id. 471 ; Gibson v. Watt.
 
 84 
 
 KVIDKXCE. 
 
 |C11A1'. 
 
 II. 
 
 party seeking rclid' uiKlcrtakcs ;i ta.sk of great difficulty^ 
 
 1 Me-Coiil Ch. (S. C.)490; Perry v. 
 Peai-sittu, 1 Humph. (Tenn.) 431 ; 
 Vail Nes.s v. Wjvsliington, 4 Pi-t. (V. 
 S.) 232; Harrison i\ Howard, 1 
 Ii-ed. (N. C.) Eq. 407; Evans v. 
 Hooper, 3 N. J. Eq. 204; Magee- 
 han V. Adams, 2 I3inn. (Penn.) 109. 
 A mere clerical error may be shown 
 in a court of law, as, an error in the 
 date. Leggitt v. Buckhalter, 80 
 Miss. 421. 
 
 In respect to mi.stakes of law, as 
 contradistinguished from mistakes 
 of fact, see Wheaton v. Wheaton, 9 
 Conn. 96 ; Lowndes v. Chisholm, 2 
 McCord (S. C.) Ch. 455; Hopkins' 
 Ex'i-s V. Ma/.yck, 1 Hill Ch. (S. C.) 
 251 ; Pitzgei-ald v. Peck, 4 Litt. R. 
 125; Chami)Iin v. Laytin, 1 Edw. Ch. 
 (N. Y.) 407; Hunt v. Rousmanier, 
 1 Pet. (U. S.) 15; 8 Wheat. (U. S.) 
 174; 3 Mas. (U. S.) 294; Sims v. 
 Lyle, 4 Wash. C. C. R. 301, 320 ; 
 Heilner t'. Imbrie, 6 S. & R. (Penn.) 
 411 ; Lyon v. Richmond, 2 John. Ch. 
 (N. Y.) 51 ; Williams v. Hodgson, 2 
 H. & J. (Md.) 474; Lammat v. 
 Browl)y, 6 id. 24 ; Rawstone v. Parr, 
 3 Russ. 424 ; Clark v. Dutcher, 9 
 Cow. (N.Y.) 674 ; Lawrences Beau- 
 bin. 2 Bail. (8. C.) 623; Moser v. 
 Liebenguth. 2 Rawle (Penn ), 428 ; 
 Haven v. Foster, 9 Pick. (Mass.) 112; 
 Shot well V. Murray, 1 John. Ch. (N. 
 Y.)512; Storrs 7). Barker, 6 John. 
 Ch. (N. Y.) 166; Naylor v. Wench, 
 1 Sim. & Stud. 561 ; Jones v. Wat- 
 kin.s, 1 Stew. 81 ; Ward v. Tucker, 
 7 Ma.ss. 449 ; Hubbai-il v. Martin, 8 
 Yerg. (Tenn.) 498 ; Dickens t). Jones, 
 6 id. 483 ; Besore v. Potter, 12 S. & 
 R. (Penn.) 158 ; Robinson v. Wiley, 
 15 N. Y. 489. 
 
 As to showng fraud, surprise and 
 mistake, in answer to a bill for a 
 specific performance of an agree- 
 ment, spf. 2 Storj^'s Eq. 24 et seq. ; 
 Ratcliffn 71. Allison, 8 Rand. (Va.) 
 537 ; Bradbury v. White, 4 Me. 891; 
 
 Young V. Craig, 2 Bibb (Ky.), 270; 
 Fisher v. May, 2 id. 451 ; Smith v. 
 Smith, 4 id. 81 ; Harrison v. Talbot, 
 2 Dana (Ky.), 258; Gower v. Ster- 
 ner, 2 Whart. (Penn.) 75, 79 ; Moli- 
 ere v. The Pennsylvania Ins. Co., 5 
 Rawle (Penn.), 342; Wheatley -w. 
 Sladc, 4Sim. 126; Cathcartt). Robin- 
 son, 5 Pet. (U.S.) 264; Watts v. 
 Waddle, 6 id., 389 ; Hutchinson v. 
 McNutt, 1 Hamm. (Ohio) 14 ; Askey 
 V. Poyas, 2 Dess. (S. C.) Eq. 145 ; 
 Meads v. Lansing, 1 Hopk. Ch. (N. 
 Y.) 124 ; Faure v. Martin, 7 N. Y. 
 210 ; Schmidt v. Livingston, 3 Edw. 
 Ch. (N. Y.) 213; Best v. Stow, 2 
 Sand. Ch. (N. Y.) 298. 
 
 As to the admissibility of parol 
 evidence, in courts of ec^uity, for the 
 pui'pose of obtaining relief against 
 fraud, and what constittites that 
 species of fi-aud upon which those 
 courts will interfere, see 1 Story Eq. 
 166-168 ; also id. 194 tt seq. ; Gresl. 
 Eq. Ev. 206, 207 ; Wilkinson 7'. Wil- 
 kinson, 2 Dev. (N. C.) Eq. 378; 
 Flagler -y. Pleiss, 3 Rawle (Penn.), 
 345; Rice 7). Spotswood, 6Mon. (Ky.) 
 40; Boyce v. Grundy, 3 Pet. (U. S.) 
 210; Stinson v. McKeown, 1 Hill 
 (N. Y.), 887. 
 
 It is clear that a pai-ty may, as 
 plaintifl", have relief against a writ- 
 ten contract, by having the same set 
 aside and canceled or modified, 
 whenever it is founded in mistake of 
 material facts, and it would be un- 
 conscientious and unjust for the 
 other party to enforce it. See Ball 
 V. Storie, 1 Sim. & Stud. 210. And 
 this, although the party seeking the 
 relief drew the instrument himself. 
 Id. ; Gibson v. Watts, 1 McCord Ch. 
 (S. C.) 494, 495. See further, as to 
 the general doctrine, Chase 7'. Man- 
 hardt, 1 Bland Ch (Md.) 383; 1 
 Story Eq. 164; Fi.shback v. Wood- 
 ford] 1 J. J. Mar. (Ky.) 84 ; Bierne 
 V. Erskine, 5 Leigh (Va.), 59 ; Me-
 
 SEC. 29.] PAROL EVIDENCE, RULES RELATING TO. 
 
 85 
 
 since ii court of equity will not interfere, unless it is clearly 
 
 Mahon v. Spangler, 4 Rand. (Va.) 
 51 ; Anderson's Ex'r v. Bacon, 1 
 Marsh. (Ind.) 48; Love v. Cofer, 
 1 J. J. Mai-. (Ky.) 327 ; Bodley v. 
 McChord, 4 J. J. Mar. (Ky.) 475; 
 Huston V. Noble, 4 J. J. Mar. (Ky.) 
 130 ; Rice's Heirs v. Spotswood's 
 Heirs, (3 Mon. (Ky.) 40; Inskoe v. 
 Proctor, 6 Mon. (Ky.) 312 ; Allen v. 
 Hammond, 11 Pet. (U. S.) 63. 
 
 But, in England, it is not admis- 
 sible for a plaintiff to allege a mis- 
 take, with a view of correcting the 
 contract, and, at the same time, seek 
 a specific performance of it in its 
 rectified state. See Gresl. Eq. Ev. 
 206, 207. Most of the English cases 
 on this subject will be found col- 
 lected in the notes to 1 Story Eq. 
 174. The learned author remarks, 
 in respect to this doctrine, that " it 
 is certainly of a very artificial char- 
 acter, and diflacult to be reconciled 
 with the general principles of courts 
 of equity." It is, "in effect," he 
 says, " a declaration, that parol evi- 
 dence shall be admissible to correct 
 a writing as against a plaintiff, but 
 not in favor of the plaintiff, seeking 
 a specific performance. There is, 
 therefore, no mutuality or equality 
 in the operation of the doctrine. 
 The ground is very clear, that a 
 court of equity ought not to enforce 
 a contract, where there is a mistake, 
 against the defendant, insisting 
 upon, and establishing the mistake ; 
 for it would be inequitable and un- 
 conscientious. And if the mistake 
 • is vital to the contract, there is a like 
 clear gi-ound why equity should in- 
 terfei-e at the instance of the party, 
 as plaintiff, and cancel it ; and if the 
 mistake is partial only, why at his 
 instance it should reform it. In these 
 cases the remedial justice is equal ; 
 and the parol evidence to establish 
 it is equally open to both parties to 
 use as pi-oof. "Why should not the 
 
 party aggrieved by a mistake in an 
 agreement, have relief in all cases, 
 where he is plaintiff", as well as where 
 he is defendant? Why should not 
 parol evidence be equally admissi- 
 ble to establish a mistake as the 
 foundation of relief in each case? 
 The rules of evidence ought certainly 
 to work equally for the benefit of 
 each party. Mr. Chancellor Kent 
 has forcibly observed, ' that it cannot 
 make any difference in the reason- 
 ableness and justice of the remedy 
 whether the mistake was to the 
 pi-ejudice of one party or the other. 
 If the court has a competent juris- 
 diction to correct such mistakes (and 
 that is a point understood and set- 
 tled), the agreement, when corrected 
 and made to speak the real sense of 
 the parties, ought to be enforced, as 
 well as any other agreement, per- 
 fect in the first instance. It ought 
 to have the same efficacy, and be 
 entitled to the same pi'otection, when 
 made accurate under the decree of 
 the court, as when made accurate 
 by the act of the parties. Res accedetit 
 lumina rebus.' It may be added, 
 that, if the doctrine be founded 
 upon the impropriety of admitting 
 parol evidence to contradict a writ- 
 ten agreement, that rule is not more 
 broken in upon by the admission of 
 it for the plaintiff, than it is by the 
 admission of it for the defendant. 
 If the doctrine had been confined to 
 cases arising under the Statute of 
 Frauds, if not more intelligible, it 
 would at least have been less incon- 
 venient in practice. But it does not 
 appear to have been thus restricted, 
 although the cases in which it has 
 been principally relied on have been 
 of that description. It will often be 
 quite as unconscientious for a de- 
 fendant to shelter himself under a 
 defense of this sort, against a plain- 
 tiff seeking the specific performance
 
 80 evidp:nce. [chap. il. 
 
 oonvi 1100(1 by the most satisluctoiy evideuce, first, that the 
 
 of a contract, an<l the coiTCCtion of 
 a mistake, as it will be to enforce a 
 contract against a defendant, which 
 embodies a mistake to his prejudice. 
 See ComjTi's Digest, Chancery, 2 C. 
 4 ; 2 X. 3 ; 4 L. 2." 1 Story Eq. 
 17."), note 1. 
 
 The doctrine of WooUam -». Heara, 
 7 Ves. 511, and other English cases 
 proceeding on like views, holding, 
 that while parol evidence may be 
 receiveil against a plaintiff seeking 
 specific performance,itwill not be re- 
 ceived in his favor to rectify a writ- 
 ten agreement, has been distinctly 
 repudiated in New York, and seems 
 indeed not to have been sanctioned 
 by any of the courfs of equity in this 
 country. See Keisselbrack ii. Liv- 
 ingston, 4 John. Ch. (N. Y.) 144 ; 
 Gillespie v. Moon, 2 id. 585 ; also. 
 The Hiram, 1 Wheat. (U.S.) 444; 
 Hunt V. Rousmanier, 8 Wheat. (U. 
 S.) 211 ; Hogan v. Delaware Ins. 
 Co., 1 Wash. (U. S. C. C.) 422 ; Rose- 
 velt V. Fulton, 2 Cow. (N. Y.) 129 ; 
 Patfison v. Hull, id. 747 ; Wesley v. 
 Thomas, C H. & J. (Md.) 24 ; New- 
 som V. Bufferlou, 1 Dev. Eq. 379 ; 
 Gower 1). Stenier, 2 Whart. (Penn.) 
 7."), 79 ; Abbe v. Goodwin, 7 Conn. 
 1577. But see Westbrook v. Harbe- 
 son, 2 McCord Ch. (S. C.) 112 ; Elder 
 r. Elder, 10 Me. 80 ; Dwight v. Pom- 
 roy, 1 7 Mass. 303 ; Bradbury v. 
 White, 4 Me. 391 ; Harrison t). Tal- 
 bot, 2 Dana (Ky.), 250. 
 
 As to the admissibility of parol 
 evidence, and what shall constitute 
 part performance, see 1 Story Eq. 
 21 et seq. See also Gei-man v. Ma- 
 chin, 6 Paige (N. Y.), 288 ; Wetmore 
 V. White, 2 (;ain Caa in Er. 87 ; Hall 
 V. Hall, 2 McCord Ch. (S. C.) 269; 
 Miller v. Howei-, 2 Rawle (Penn.), 
 53 ; Low V. Treadwell, 13 Me. 441 ; 
 Brooks r. Wheelock, 11 Pick. (Mass.) 
 439; Monahan v. Colgin, 4 Watts 
 
 (Penn.), 436; Ellis ■» Ellis, 1 Dev. 
 (N. C.) Eq. 341. 
 
 See on the subject of bills to re- 
 form agreements, 1 Story Eq. 164 
 et seq. ; McMahon v. Spangler, 4 
 Rand. (Va.) 51 ; Cook v. Preston, 2 
 Root, 78 ; Elmore v. Austin, 2 
 Root (Conn ), 415 ; Parsons v. Hos- 
 mer, 2 Root (Conn. ), 1 ; Sanford v. 
 Washburne, id. 499 ; Chadman v. 
 Allen, Kirby (Conn.), 399 ; Lemaster 
 V Buckhart, 2 Bibb (Ky.), 29 ; Col- 
 yer v. McGee, id. 321 ; McCurdy v. 
 Breathitt, 5 Mon, (Ky.) 534; Love 
 v. Cofer, 1 J. J. Mar. (Ky.)327; 
 Moser'jj.Libenguth, 2 Rawle (Penn ), 
 428; Insko •», Proctor, 6 Mon. (Ky.) 
 316; Parcels v. Gohegan, 2 J. J. 
 Mar (Ky.) 133 ; Hunt v. Rousmani* 
 ere, 1 Pet. (U. S.) 1 ; 8 Wheat. (U. 
 S.) 174 ; Burdett v. Simms, 3 J. J. 
 Mar. (Ky.) 190 ; Hamson v Jame- 
 son, id. 232 ; Hunt v. Freeman, 1 
 Hamm. (Ohio) 501 ; Phcenix Ins. Co. 
 V. Gurnee, 1 Paige (N. Y ), 278 ; 
 Rosevelt v. Fulton, 2 Cow. (N. Y ) 
 129 ; Chamberlain v. Thompson, 10 
 Conn. 243; Gillespie v Moon, 2 John. 
 Ch. (N. Y.) 585 ; Wheaton v. Whea- 
 ton, 9 Conn. 96 ; Young v. Craig, 2 
 Bibb (N. Y.), 270 ; Smith v. Smith, 
 4 id. 81 ; Newsom v. Bufferlou, 1 
 Dev. Eq. (N C.) 379 ; Gower v. 
 Sterner, 2 Whart. (Penn.) 75; Dal- 
 zell-w. Timrod, 1 Dess Eq. (S. C.) 
 339 ; Holmes v. Simmons, 3 Dess. 
 Eq. (S. C ) 149. See also the cases 
 post in these notes, relative to wills. 
 
 In an action brought to reform a 
 written instrument, e. g. a bond, the 
 consideration of which proceeds from 
 a third party acting for the obligee, 
 the latter is entitled to a decree re- 
 forming the insti-ument on showing, 
 first a plain mistake, cleai-ly made 
 out by satisfactory proofs ; and, 
 second, that the part omitted or in- 
 serted, was so omitted or inserted
 
 SEC. 29.] PAROL EVIDENCE, RULES RELATING TO. 
 
 87 
 
 mistake complained of really exists, and next, that it is such 
 a mistake as ought to be corrected.^ A plaintiff may seek 
 the relief in equity by filing a bill either to reform the writ- 
 ing, in which event it will be necessary to satisfy the court 
 that there was a mistake on both sides, or to rescind the 
 instrument, in which case, though conclusive proof of error 
 or surprise on the plaintiff's part alone will suffice,^ it must 
 appear that the mistake was one of vital importance.^ Iii 
 either of these cases, if the defendant by his answer denies 
 the case as set up by the plaintiff, and the latter simply relies 
 on the verbal testimony of witnesses, and has no documentary 
 evidence to adduce, — such, for instance, as a rough draft of 
 the agreement, the written instructions for preparing it, or 
 the like, — the plaintiff's position will be well nigh desperate, 
 though even here, as it seems, the parol evidence may be so 
 conclusive in its character as to justify the court in granting 
 the relief prayed.'* A defendant, also, against whom a spe- 
 
 contrary to the intent of both parties, 
 and under a mutual mistake. Nevins 
 V. Dunlop, 33 N. Y. 676. Mr. Justice 
 Brown, in delivering the opinion of 
 the court, adopts the language of 
 Chief .Justice Spencer, in Lyman v. 
 The Utica Ins. Co., 17 John. (N. Y.) 
 373 : " It is not enough, in cases of 
 this kind, to show the sense and in- 
 tention of one of the parties to the 
 contract. It must be shown incon- 
 trovertibly that the sense and inten- 
 tion of the other party concurred in 
 it ; in other words, it must be proved 
 that they both understood the con- 
 tract as it is alleged it ought to have 
 been, and in fact it was, but for the 
 mistake. It would be the height 
 of injustice to alter a contract on the 
 ground of mistake, when themistake 
 arises from misconception of one of 
 
 other party agreed to it in the same 
 way, and that the intention of both 
 of them was by mistake misrepre- 
 sented by the written contract." 
 
 See also 1 Story Eq. 160 ; also El- 
 der V. Elder, 10 Me. 80 ; Hodgson y. 
 Hancock, 1 Y. & Jer. 317 ; United 
 States V. Monroe, 5 Mas. (U. S.) 571; 
 Phoenix Ins. Co. v. Gumee, 1 Paige 
 (N. Y.), 278; Watkins v. Stockett, 
 6 H. & J. (Md.) 435 ; Gravest?. The 
 Boston Mjirine Ins. Co., 2 Cranch 
 (U. S.) 419 ; Dupree v. McDonald, 4 
 Dess. Eq. (S. C.) 209 ; Lyman v. 
 The United Ins. Co., 2 John. Ch. (N. 
 Y.) 630 ; Gillespie v. Moon, id. 585; 
 Harris v. Dinkins, 4 Dess. Eq. (S. 
 C.) 60 ; Abbie v. Good-win, 7 Conn. 
 377. 
 
 ^ M. of Townsend v. Strangi-oom, 
 6 Ves. 339 ; Mortimer v. Shortall, 3 
 
 the parties in consequence of his Dru. & W. 371 ; Gillespie v. Moon, 
 
 imperfect explanation of his inten- 2 John. Ch. (N. Y.) 585. 
 
 tions. If it be clearly shown that ^ Mortimer v. Shortall, 2 Dru. & 
 
 the intention of one of the parties is W. 372. 
 
 mistaken and misrepresented by the ^ 1 Story Eq. Jur. § 144, n. 
 
 written contract, that cannot avail * Mortimer v. Shortall, 2 Dru. & 
 
 unless it be further shown that the "W. 374 ; Alexander v. Crosbie, R.
 
 88 EVIDENCE. [chap. H. 
 
 citic poiroi-mancc of a written agreement is sought, may insist 
 by way of answer upon the mistake, and may establish its 
 existence l)y parol evidence, because he may rely on any 
 matter Avhich shows it to be inequitable to enforce the 
 contract.^ 
 
 Sec. 30. To Show a Waiver, Alteration, or a Discharge of the Contract. 
 
 It is always competent for a party to a written contract 
 to show that it was subsequenthj to the execution of a writ- 
 ten contract, abandoned by the parties thereto, either in 
 whole or in part, or that some of its provisions were waived,^ 
 and this applies as well to contracts under seal as to simple 
 contracts,^ and it has been held that even the waiver of a 
 condition of a deed may be shown by parol.* As to the 
 effect of a waiver by parol of the conditions of an instrument 
 under seal, and the sul)stitution of new parol conditions, it 
 may be said that, if the entire contract under seal is not 
 abandoned, the whole, by such a change, is reduced to the 
 character of a simple contract so that assumpsit, instead of 
 debt or covenant is the proper remedy thereon.^ Thus, in a 
 Massachusetts case,^ an action of assumpsit was brought for 
 work and labor, etc., and the defendant set up in defense 
 that the whole took place under a special contract inider 
 seal, which was produced. The plaintiff showed that being 
 imable to go on after having partly performed his con- 
 tract, without material loss, he refused to proceed, but that 
 the defendant, l)y parol, thereupon promised him that if he 
 
 temp. Sugden, 150 ; M. of Townsend S. & R. (Penn.) 241 ; Cring'um v. 
 
 V. Sti-angTOom, 6 Ves. 339 ; Gillespie Nicholson, 1 H. & M. (Va.) 435. 
 
 V. Moon, 2 John. Ch. (N. Y.) 600. * Leathe v. Ballard, ante. In 
 
 ' Davies v. Fitton, 2 Dr. & W. Wliitcher v. Shattuck, 3 Allen 
 
 232 ; M. of Townsendv. Strangroom, (Mass.), 318, it was held that under 
 
 6 Ves. 328. a chattel mortgage, reserving to 
 
 ' Raffensberger v. Collinson, 28 the mortgagor possession and con- 
 
 Penn. St. 42»j ; Willey v. Hall, 8 trol of the goods until after default, 
 
 Iowa, 62 ; Chiles d. Jones, 3B. Mon. it may be show-n by parol that the 
 
 (Ky.) 51 ; Biyan v. Hunt, 4 Sneed mortgagor waived this right. 
 
 (Tenn.), 543 ; Wood ■M.Perry, 1 Barb. ^ Hyde\dlle Co. v. Eagle R. R. & 
 
 (N. Y.) 114. Slate Co., 44 Vt. 395. 
 
 ' Flinnr. McKean, 6Duer(N.Y.), ^ Munroe v. Perkins, 9 Pick. 
 
 203; Leathe v. Bullard, 8 Gray (Mass.) 298. 
 (Mass.), 545; Lefevre v. Lefe\Te, 4
 
 SEC. 30.j PAROL EVIDENCE, RULES RELATING TO. 89 
 
 would go on he should be paid for the labor, etc., and should 
 not sutler, and upon the faith of such parol promise he went 
 on and performed the liibor, etc., for which he sought to 
 recover.^ 
 
 The time for the performance of a contract, whether 
 under seal or not, may be enlarged by parol, ^ and the time 
 for the performance of the condition of a bond may also be 
 so enlarged.^ Thus, in a Ne\v York case,^ an action was 
 brought upon a bond conditioned that the defendant, by a 
 ^iven da}', should procure and deliver to the plaintifi* a cer- 
 tain bond and mortgage, and discharge the same of record. 
 The defendant did procure the bond and mortgage, and 
 offered them to the phiinlitf, proposing to do whatever else 
 he required to discharge the mortgage of record ; but the 
 plaintitf, not knowing what was necessary, agreed Ijy parol 
 to waive a literal performance in this respect, if the defend- 
 ant would do another thing, which he afterwards did ; held, 
 that evidence of the parol waiver, etc.. was admissible, and 
 iMuounted to a defense. The court went upon the ground, 
 th;',t hv who prevents a thing being done shall not avail him- 
 self of the iion-jierformance he has occasioned. Where the 
 condiLion of a bond was to raise a mill, the obligor came to 
 the ol ligee and told him everytliing was ready to erect the 
 mill, and asked him when he woidd have him come and put 
 it up ; the obligee answered, that he would not have it, and 
 discharged him entirely of erecting the mill, and that was 
 held sufficient to excuse him from the performance.^ In 
 an English case,^ Lord Kenyon held, that to an action of 
 covenant on a charter party, for the demurrage which was 
 stipulated in it, the defendant might plead that the cove- 
 nantee, who was the master and owner of the ship, verbally 
 
 * See also to the same effect, Lat- * Fleming- v. Gilbert, 3 John. (N. 
 
 temore v. Hurson, 14 John. (N. Y.) Y.) 328. 
 
 330; Allen v. Jaquish, 12 Wend. * Fleming V Gilbert, swp-a, per 
 
 (N Y.) 028. Thompson, J., citing- 1 Roll Abr. 
 
 ^ Friess V. Rider, 24 N. Y. 367. 453, pi. 5, Year-Book, 2 Hen. VI, 
 
 ^ Stone V. SpragTie, 20 Barb. (N. 37. 
 
 Y.) 5 9; Esmond v. Van Benscho- ' KadcUffe i\ Pemberton, 1 Esq. 
 
 ti-n, i2 id. 36(5 ; Neil v. Tilman, 1 35. 
 Eailey (S. C), 538 7i.
 
 90 EVIDENCE. [chap. H. 
 
 periiiittod the tlcluy, and agreed not to exact any demurrage, 
 but waived all claim to it.' So where the plaintitl' sued on 
 a broach of covenant, for not giving a deed, it was held a 
 <n)()d i>loa, and the defendant would have given a deed at the 
 time stipulated, l)ut the plaintiff objected, and said when he 
 wished the deed he would apply for it.^ 
 
 In a New York case,^ the action was on notes, payable in 
 specific articles. It appeared that the consideration of the 
 notes was a bond of the plaintiff, by which the latter obli- 
 «'ated himself to convey certain premises to the former j 
 tliat. by a subsequent parol agreement, the parties had stip- 
 ulated to rescind the contract of sale ; and that the plaintiff, 
 pursuant to this arrangement, had re-entered upon the prem- 
 ises, and finally sold them to another individual. The court 
 held, that though the bond was not canceled or given up, or 
 any of the papers changed, yet by the parol agreement, and 
 the acts of the parties under it, the bond was discharged, 
 and, therefore, no action would lie on the notes. In a later 
 case,-* the defendants being sued on a bond given by them as 
 sureties of a deputy sheriff, set up by way of plea, a parol 
 
 ao-reement of the sheriff that he would release them. No 
 
 o 
 
 consideration wjis alleged for the agreement, aiul this the 
 court, on demurrer, adjudged fatal to the plea. Tliey, how- 
 ever, intimated an opinion, that a parol agreement, execu- 
 tory in its character, could not discharge a covenant. 
 
 Sec. 31. Not Admissible to show Warranty. 
 
 The rule is, that where a contract for the sale of property has 
 l)een reduced to writing, andis evidently complete in itself, it is 
 not competent for the [)arties to engraft new teims or condi- 
 tions thereon in the form of a warranty ;^ but where the con- 
 
 ' Thi-esh V. Rake, id. 53. w. Crafts, 12 Met. (Mass. ) 353 ; Reed 
 
 * Baker v. Whiteside, 1 Breese v. Wood, 9 Vt. 285 ; Shei)herd v. 
 (111.). 132. Gilvoy, 46 Iowa, 193 ; Mumford v. 
 
 * Dearborn v. Cross, 7 Cow. (N. McPhenson,. 1 John. (N. Y.) 414; 
 Y.) 4«. VanOstrandu Reed, 1 Wend. (N.Y.) 
 
 * Barnard v. Darling, 11 Wend. 424 ; McMullaint). Thomas, 43 Conn. 
 (N. Y.) 22. 2.52 ; Rice v. Forsythe, 41 Md. 389 ; 
 
 * Mast r. Pearce, .58 Iowa, 579 ; Dean v. Mason, 4 Conn. 428 ; Salem, 
 Jolliff i\ Collins, 20 Mo. 338 ; Lamb &c., Co. v. Adams, 23 Pick. (Mass.)
 
 SEC. 31.] PAROL EVIDENCE, RULES RELATING TO. 91 
 
 tract US expressed in the writing is manifestly incomplete, parol 
 evidence is admissible to show a contemporaneous agreement 
 that the property should be of a certain (piality, kind or 
 quantity.' The rule as stated was held in the New York 
 case cited, ante^ under the following facts : The parties 
 entered into a parol agreement that the plaintiff should 
 furnish the defendant with certain machinery at a specified 
 price, and that the defendant should accept and pay for the 
 same in a specified manner, and that the plaintifi' should 
 guarantee that the machines should do the defendant's 
 work satifactorily. The agreement was reduced to writino* 
 and signed, not including the guaranty, and it was held that 
 parol evidence was admissible to add the guaranty. The 
 court placed its decision expressly upon the ground that the 
 agreement relating to the guaranty was collateral, and that 
 the writing was manifestly, as it was in fact found to be, 
 incomplete. The court predicated its doctrine upon an early 
 English casc,^ and an early case in New York,^ and so far 
 as the doctrine of the two cases referred to is concerned, 
 there can be no question as to their accuracy, as in neither case 
 did the Avriting purport to embrace the entire .contract. 
 But in the principal case,'* tJte lonling ivas evidenilij compute 
 and ivas signed hg both ixirlies. There was nothing upon 
 the face of the contract from which a presumption that it 
 was incomplete could be drawn. It is true that the referee 
 found as a fact that it was incomi)lete, but if this circumstance 
 is to furnish a ground for the admission of such evidence, 
 then it opens the way for its admission in every case where 
 tJie jiu'ij find that such an agreement was in fact made, and 
 
 2.56 ; Boardman v. Spooner, 13 126 Mass. 393 ; Frost %i. Blanchard, 
 
 Allen (Mass.), 361 ; Kain v. Old, 2 97 Mass. 155 ; Etheridg-e v. Pulin, 
 
 B. & C. 627 ; Spooks 7;. Messick, 72 N. C. 213 ; Naumberg d. Young-, 
 
 65 N. C. 440 ; The Johnston Co. v. 35 N. J. L. 331. 
 
 Bartley, 81 Ind. 406 ; Lamb v. » Chapin v. Dol)son, 78 N. Y. 74 ; 
 
 Crafts, 12 Met. (Mass.) 353 ; Battens Scott v. Sweet, 2 G. Green (Iowa), 
 
 •u. Sellers, 5 H. & J. (Md.) 117; 224. 
 
 Froreich v. Gammon, 28 Minn. 476 ; ^ Jeffrey v. Walton, 1 Stai-k. 385. 
 
 Wilson V. Marsh, 1 John. (N. Y.) ^ Battemore v. Pierce, 3 Hill (N. 
 
 503; Whitmore v. So. Boston Iron Y.), 171. 
 
 Co., 2 Allen (Mass.), .'"8 ; Reed v. * Dobson v. Chapin, aJite. 
 
 Wood, 9 Vt. 285 ; Keller v. Webb,
 
 92 KVIDKXCE. [CIIAI-. II. 
 
 it dijes not conjUcl witlt or ankujonize any of Ihe .sflpnlations 
 in the written contract. The court says : " The written con- 
 tract and tlic guaranty do not relate to the same subject- 
 matter. Tlie contract is limited to a particular machine, as 
 .such, the guaranty is limited to the capacity of the machine." 
 But the court seems to have lost sight of the fact that both 
 were a i)art of an (tut/re contract, and that there was no \^Y(i- 
 icwae that two separate and distinct contracts relating to the 
 onatter ivere entered into, nor was there any pretense that the 
 omission of the guaranty trom the writing was brought about 
 hij tin' fraud of the plaintiffs, Init that the omission, if not 
 intended hy the parties, was the result of accident or a mis- 
 take, and it seems to us that the only remedy open to the 
 defendant was to seek a reformation of the contract upon 
 that ground, and that the doctrine held by the court is con- 
 tiary to the general drift of authority, and carried to its 
 legitimate sequence would result in a disastrous relaxation of 
 a highl}^ salutary rule of evidence. There are a class of cases 
 where evidence of a parol agreement, contemporaneous with 
 the written agreement, is admissible wJien the parol agree- 
 ment ivas an inducement to the execution of the ivritten agree- 
 ment} But this case does not seem to come within the rule 
 of those cases, or have any of the essential features requisite 
 to bring it within the exception upon this ground. In an 
 English case,^ the rule which is universally acted u})()n, that 
 when the contract is finally consunnnated, all prior con- 
 versations and negotiations are merged therein, was recog- 
 nized. In that case, the bill of sale in the usual form 
 contained no warranty that the vessel sold was copper- 
 fjistened. There had been a previous written representation 
 by the vendor that she was copper-fastened. The court held 
 that this prior representation formed no part of the contract 
 and was not a warranty. " Where," said Abbott, C. J., " the 
 whole matter passes in parcel, all that passes may sometimes 
 bo taken together as forming parcel of the contract, though 
 not always, l)ecause matter talked of at the commencement 
 
 •Pierce v. Woodward, 6 Pick. Penn. St. 469 ; Pamelton CoalCo. z;. 
 <Mass.) 206 ; Shugart v. Moore, 78 McShain, 7.^ id. 238. 
 
 " Kain v. Old, 6 B. & C. 627.
 
 SEC. 31.] PAROL EVIDENCE, RULES RELATING TO. 93 
 
 of a bargain maij be excluded by the language used at its ter- 
 mination. But if a contract be in the end reduced to writing, 
 nothing which is not found in 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 show- 
 ing the inducement 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 representation unless 
 he can also shoio that the seller, by some fraud, prevented him 
 from discovering a fault which he, the seller, knew to exist." 
 "The only safe criterion," says Depue, J.,i in a very able 
 and exhaustive opinion, " of the completeness of a written con- 
 tract as a full expression of the terms of a party's agreement, 
 is the contract itself. When the parties have deliberately 
 put their engagements into writing in such language as 
 imports a legal obligation, it is only reasonable to presume 
 that they have introduced into the written instrument every 
 material term and circumstance ; and consequently all parol 
 testimony of conversations held between the parties, or of 
 declarations made by either of them, whether before or after 
 the time of the completion of the contract, will be rejected."^ 
 In the Massachusetts case,^ before cited, it was attempted to 
 engraft upon a lease a parol warranty by the landlord that 
 the premises were tit for the purpose for which they were 
 let ; but the evidence was rejected, Shaw, C. J., saying : 
 " If there was any warranty, express or implied, it was a 
 part of the contract of hiring and not something separate 
 and independent, and must therefore be found in one of the 
 items or terms of that contract." So where a lease is silent 
 as to repairs, it cannot be shown by parol that the landlord 
 agreed to make the repairs.^ In a New York case ^ there 
 was a lease of a house and furniture, and a schedule of the 
 furniture was annexed to the lease. In an action to cancel the 
 
 ' Naumberg v. Young, 35 N. J. L. 1 E. D. S. (N. Y. C. P.) 253 ; Hei v. 
 
 331. Heller, 53 Wis. 415. 
 
 * Crane v. Elizabeth, &c., Ass'n, ^ Dutton v. Gerrish, ante. 
 29 N. J. L. 305 ; Powell t). Edmunds, ■• 3 Starkie Ev. 1007. See opinion 
 
 12 East, 6 ; Dutton -». Gerrish, 9 of Ghalson, J., in Howard v. 
 
 Gush. (Mass.) 89 ; Sheckles v. Sax, Thomas, 12 Ohio St. 201. 
 
 ' Wilson V. Deen, 74 N. Y. 531.
 
 94 EVIDENCE. [niAP. II. 
 
 lea.se, oral te.stiniony to show that the lessor agreed that certain 
 defuieiicies in the riiriiiture should be made up, wa.s rejected.^ 
 la an Iowa ciu>e,^ the doctrine of the New York case^ was 
 expressly repudiated as being unsound and against au- 
 thority. 
 
 But where the contract is evidently incomplete, being 
 merely an informal bill or receipt and not intended to 
 <'inbrace the entire contract, parol evidence of a warranty of 
 the goods is admissible." Thus, where the pluintifl' pur- 
 chiisod a horse of the defendant, and received from him a 
 mcmoianduni of purchase in writing. The plaintiff said that 
 when he treated for the purchase of the horse the defendant 
 said that if he did not work well and go quietly in spare 
 harness the plaintiff could send him back and have his money 
 returned, and after some further talk the plaintiff bought the 
 horse. The memorandum of sale contained no mention of 
 the warranty. The horse proved to be vicious and luu-uly, 
 and the plaintiff took him back and demanded a return of 
 his money. The defendant insisted that the plaintiff was 
 concluded by the writing from showing the warranty, but 
 the evidence was admitted and the plaintiff had a verdict 
 which was sustained, Lord Abinger, C. B., saying : "If 
 there has been a parol agreement, which is afterwards 
 reduced by the parties into writing, that writing alone must 
 be looked to to ascertain the terms of the contract ; but the 
 princii)le does not apply here ; there was no evidence of any 
 agreement by the plaintiff that the whole contract should be 
 reduced into writing by the defendant ; the contract is first 
 concluded by parol, and afterwards the paper is drawn up, 
 
 ■ Emeiyi) Perry, 17 L. T. U. S. 8 Pick. (Mass.) 250; Schenck v. 
 
 152. Saunders, 13 Gray (Mass.), 37 ; Wal- 
 
 * Mast V. Pearce, 58 Iowa, 579 ; lace v. Rogers, 2 N. H. 506 ; Bushtel 
 43 Am. Rep. 125. v. The Mason Lumber Co., 1 Flip. 
 
 ' Chapin v. Dobson, 78 N. Y. 34 ; (U. S. C. C.) 640 ; Foot v. Bentley, 
 
 34 Am. Rep. 512. 44 N. Y. 166; Hildreth v. O'Brien, 
 
 * Henson V. Henflei-son, 21 N. H. 10 Allen (Mass.), 144; Frost v. 
 224 ; Perrins v. Cooley, 39 N. J. L. Blanchard, 10 id. 155; Fletcher v. 
 449; Hazard v. Loving, 19 Cush. Willard, 14 Pick. (Mass.) 464 ; Stacy 
 (Mass.) 267; Henshaw v. Robbins, 3 v. Kemp, 97 Mass. 168; Atwater V. 
 Met. (Mass.) 136 ; Bradford v. Manly, Clancy, 107 id. 369. 
 
 13 Mass. 139; Williams t?. Shaflbrd,
 
 SEC. 32.] PAROL EVIDENCE, RULES RELATING TO. 95 
 
 which uppeiii-s to have been meant merely as a memorandum 
 of the transaction, or an informal receipt for the money, not 
 containing the terms of the contract itself." Where a bill 
 of parcels shows merely a sale of "cloves," parol evidence 
 is admissible to show what kind of cloves were exhibited as 
 a sample at the time of sale.^ So where the vendor, in a 
 written agreement, agreed to ship to a person a certain quan- 
 tity of "good fine wine," it was held that parol evidence was 
 admissible to show the actual terms of the sale and that the 
 wine shipped was that selected by the person himself.^ But 
 where the goods sold are of a specified kind, parol evidence is 
 not admissible to show that shortly before the sale the vendee 
 inspected particular goods in the vendor's possession and 
 that those were the goods referred to in the contract.^ 
 
 Sec. 32. To show that Writing apparently absolute, is not. 
 
 Parol evidence is admissible especially in a court of equity 
 to shou) thai a ivriiing which, upon its face, is apparently ab- 
 solute, was intended only as a security,^ as, that a deed, appar- 
 ently absolute, was only intended as a mortgage ; ^ and the 
 same rule prevails as to a conveyance of personal property,^ 
 or to the assigmnent of a mortgage."^ Certificates of stock 
 absolute on their face may be shown to be held only as se- 
 curity for a debt or loau.^ A bill of sale of a ship may be 
 shown to have been given only as collateral security,^ and 
 
 ' Bradford v. Manly, 13 Mass. field v. Millikin, 71 Me. 567 ; Dis- 
 
 139. pande v. Walbridge, 15 N. Y 374. 
 
 " Hogins V. Plympton, 11 Pick. ^ Brewster v. Davis, 56 Tex. 478. 
 
 (Mass.) 97. Especially in equity, where these 
 
 * Watsontown Car Manufactory v. questionsare usually raised. Camp- 
 Elensport Lumber Co., 99 Penn. St. bell v. Dearborn, 109 Mass. 130; 
 605. Hassan v. Barrett, 115 Mass. 257 ; 
 
 * Fletcher v. Willard, 14 Pick. Maori v. Albi-o, 129 Mass. 9 ; Budd 
 (Mass.) 464; Caswell v. Keith, 12 v. Van Orden, 33 N. J. Eq. 143; 
 Gray (Mass.), 351. In those States Hunt v. Middleworth, 44 Mich. 448. 
 where equity powers are conferred ^ Newton d. Fay, 10 Allen (Mass.), 
 upon courts of law, the latter may, 505. 
 
 in an action of law, in the exercise ' Pond it. Eddy, 118 Mass. 113. 
 of its equity powers, declare a deed, • Burgess v. Seligman, 107 U. S. 
 absolute on its face, to be a mort- 20 ; Ginz v. S'tumph, 73 Ind. 209. 
 gage, and parol evidence is admis- * Howard -y.Odell, 1 Allen (Mass.), 
 sible to establish the fact. Stinch- 85 ; Blanchard v. Fearing, 4 Allen 
 
 (Mass.), 118.
 
 96 
 
 EVIDENCE. 
 
 [chap. II. 
 
 the same is true us to tiny triui.sfer of personal property.^ 
 But as to deeds, it may be said that except in those IStates 
 Avht'ie, by statute, courts of hiw are endowed with equity 
 powers, parol evidence is not admissible in courts of law to 
 show that a deed al)solute on its face was intended as a trust 
 or as a mortgage. In reference to the admission of such 
 (.'vidence in equity for the pur[)ose of changing a conveyance 
 a[i[)arcntly absolute into a mortgage, it is clear that it can 
 only be done upon some ground which will authorize an in- 
 quiry as to the real intention, independent of the one ex- 
 pressed in the writing. But how far can this inquiry go ? 
 Is it limited to the ascertainment of what the instriuiient 
 would have expressed, had it not been for some mistake of 
 the scrivener, some fraud of the opposite party, or some 
 other intervening circumstance, constituting in itself a suf- 
 ticient uround of relief in respect to written instruments 
 generally in that court ? — or may the court conform the 
 instiument to an intent not only unexpressed, but which the 
 parties, trusting at the time to each other, did not mean it 
 should express ? Upon these and various other points, the 
 cases are by no means uniform.^ 
 
 ' Hazard i\ Leving, 10 Cush. 
 (Mass.) 207; Caswell i). Keith, 12 
 Gray (Mass.), 351. 
 
 '■^ As to the general doetrine, see 
 2 Story's Eq. 287 ; 4 Kent's Comni. 
 142. See as to the rule in England, 
 Maxwell v. Montacute, 1 Prec. in 
 Ch. .520 ; Walker v. Walker, 2 Atk. 
 99 ; Joynes v. Stratham, 3 id. 389 ; 
 Vemoii V. Bethel, 2 Eden, 113; 
 Harris v. Horwell, Gilb. Eq. 
 Cas. 1 1 ; Dixon x\ Parker, 2 Ves. 
 Sr. 219 ; in the United States 
 Court, Hughes ?'. Edwards, 9 Wheat. 
 (U. S.) 489 ; New York, Marks v. 
 Pell, 1 John. Ch. (N. Y.) 594; 
 Strong V. Stewart, 4 id. 167 ; James 
 V. Johnson, 6 id. 417 ; Clark v. 
 Henry, 2 Cow. (N. Y.) :'24 ; Whit- 
 tick .r. - ... 1 Paige Ch (N. Y.) 
 206 ; S!. .■ c. Manhattan Co., id. 48; 
 Patchin r. Pierce, 12 Wend. (N. Y.) 
 
 64 ; Washburn v. Merrills, 1 Day 
 (Conn. ), 139 ; Reading v. Weston, 8 
 Conn. 177 ; Dean v. Dean, 6 Conn. 
 285; Browii v. Wi-ight, 4 Yerg. 
 (Tenn.).57; Ohio, Miami Exporting 
 Co. V. The United States Bank, 1 
 Wright (Ohio), 249 ; Mercer -«. Blair, 
 Litt. Sel. Cas. (Ky.) 412; Thomp- 
 son V. Patton, 5 Litt. 74 ; Lewis 
 V. Robards, 3 Monroe, 409 ; Murphy 
 V. Trigg, 1 i<l. 72 ; Lindley v. 
 Sharp, 7 id. 252 ; Irby v. Little, 4 
 Dess. Eq. (S. C.) 422; Todd v. 
 Rivers' Ex'rs, 1 id. 155 ; Lloyd u. 
 Ingliss, id. 333; Pitzpatrick v. 
 Smith, id. 345 ; Hatter v. Etenaud, 
 2 id. 570 ; and see Stinson v. Mc- 
 Keown, 1 Hill (S. C), 387; Ross v. 
 Norvell, 1 Wash. (Va.) 14 ; King v. 
 Newman, 2 Munf. (N. C.)40; Rob- 
 ertson V. Campbell, 2 Call (Va.), 
 241; Streator v. Jones, 3 Hawks
 
 SEC. 32.] PAEOL EVIDENCE, RULES RELATING TO. 97 
 
 It may be well to say that the Pennsylvania cases, and 
 cases arising in other States where courts at law possess 
 equity powers, on the suljject of oral evidence, in respect to 
 written instruments, are not safe guides when the inquiry is 
 simply as to the rule at law. In the main, they agree in 
 their results with the decisions in equity ; but, to one ac- 
 customed to see the distinction between chancery and strict 
 legal powers preserved in some way, they require to be read 
 and used with more than ordinary caution, from the fact 
 that, while the proceedings present all the external appear- 
 ance of a suit at law, the judgment, in many instances, in- 
 volves principles peculiar to a court of equity. Thus, judg- 
 ment will sometimes be rendered for the plaintift' in the 
 action of ejectment, when a chancellor would enforce a per- 
 formance of an agreement for the land, or decree a convey- 
 ance.' Mistakes and frauds, in respect to written instru- 
 ments, may be shown, in actions of debt, assumpsit, etc., 
 brought upon them, and the court will relieve by acting 
 upon them precisely as if the intent proved aliunde were 
 expressed.^ Various other peculiarities arise out of this 
 blending of legal forms with equitable principles, which we 
 have not the space to refer to here. It is there said that 
 " the jurisprudence of these States now is, what the common 
 
 (N. C), 423 ; 1 Murph. (N. C.) 449 ; Hultz v. Wrig-ht, id. 345 ; Richart v. 
 
 Dickenson v. Dickenson, 2 id. 279 ; Beildeman, 17 id. 42 ; Jordan v. 
 
 Jackson t'. Blount, 2 Dev. (N. C.) Cooper, 3 id. 546 ; Collom ». Hocker, 
 
 Eq. 555; Anonymous, 2 Hayw. (N. 4 Rawle (Penn.), 108; Thompson v. 
 
 C.) 26 ; Watkins v. Stockett, 6H. & "White, 1 Dall. (Penn.) 426 ; Mackey 
 
 J. (Md.) 435; Wesley V.Thomas, id. v. Brownfield, 13 S. & R. (Penn.) 
 
 24 ; Jones v. Sluby, 5 H. & J. (Md.) 239 ; Campbell v. M'Clenachan, (> 
 
 372 ; Hudson v. Isbell, 5 S. & P. id. 171 ; Christ v. Devebaugh, 1 id. 
 
 (Ala.) 67; English v. Lane, 1 Port. 466; Cozzens v. Stephenson, 6 id. 
 
 (Ala.) 328; Aborn v. Bennet, 2 421; Baring v. Shippen, 2 Binn. 
 
 Blackf. (Ind.) 101 ; Wharf v. Howell, (Penn.) 154 ; Kelly v. Thompson, 7 
 
 5 Binn. (Penn.) 499; Thompson v. Watts (Penn.), 404, 405; Besore v. 
 
 White, 1 Dall. (Penn.) 426, 427. Potter, 12 S. & R. (Penn.) 154, 158 ; 
 
 ' Hawn V. Norris, 4 Binn. (Penn.) Heilner tj. Lnbrie,6id. 411 ; Weaver 
 
 78 ; Moody v. Van Dyke, id. 41 ; v. Shyrock, id. 262 ; Shepherd v. 
 
 Peebles v. Reeding, 8 S. & R. 491. Watson, 1 Watts (Penn.), 36 ; King 
 
 ^ See Moser v. Libenguth, 2 v. Stubbs, 14 S. & R. (Penn.) 206 ; 
 
 Rawle (Penn.), 428; Christine v. Collam -u. Hooker, 1 Rawle (Penn.), 
 
 Whitehall, 16 S. & R. (Penn.) 98 , 108. 
 7
 
 98 EVIDENCE. [CIIAP. II. 
 
 law of Eiii^lund would have been, if accidental circinnstances 
 hail not cau8cd the elevation of the Court of Chancery." 
 
 It is obvious, that written stipulations may be inserted in 
 an iii>liiiH»ent from various causes besides that of a convic- 
 tion of the truth of what is expressed. So, for reasons suffi- 
 cient to itifluence the imiriediale parties, tlie writing may be so 
 fashioned as not to express the wliole truth. While, there- 
 fore, this conventional species of evidence will, in general, 
 as between those who created it for their own purposes, con- 
 clude them, and others standing in the like predicament, 
 from showing any intent contrary to or beyond what the 
 writing expresses ; those who had no agency in the matter 
 oui>ht not to be injuriously affected thereby. Therefore, 
 Avhenever it becomes material, strangers may aver and prove 
 the real intention, as contradistinguished from the intention 
 expressed. ' But they must have an interest in investigating and 
 knowing the real truth, in other words, the fact of the interest 
 sought to be established nmst be relevant ; or, the exception 
 in favor of strangers extends only to allow them to adduce 
 l)arol testimony to prevent a fraudident operation of the 
 instrument upon their rights. 
 
 The right of a creditor to show, by parol, that a convey- 
 ance, executed l)y his del)tor, is, in reality, a mortgage, with 
 a view of establishing that it was given to screen the prop- 
 erty from being seized on execution, etc., has never l)een 
 denied. Yet, where the intention was admitted to be bona 
 fide, and no ground existed ibr the imputation of fraud, 
 the fact that the conveyance was a mortgage was held im-. 
 material, and the evidence adduced inadmissible.^ The fact 
 of the consideration being paid, or not, may be material, by 
 
 ' Krider ■»). Lafferty, 1 Whart. Me. 96 ; Kelly v. Thompson, 7 
 
 (Penn.) 303; Berlin v. Norwich, 10 Watts (Penn.), 401 ; New England 
 
 John. (N. Y.) 229 ; pe)- Taylor, ,J., Mar. Ins. Co. v. Chandler, 16 Mass. 
 
 in Brooks »>. Maltl)ie,4 S. & P. 106; 275; Harrison v. Trustees of Phil- 
 
 Whitheck v. Whitbeck, 9 Cow. lips Academy, 12 Mass. 456 ; Jewett 
 
 (N. Y.) 270; Hayne v. Campbell, v. Warren, id. 300; Bartlet v. Wil- 
 
 6 Mon. (Ky.) 292 ; Johnson v. Black- liams, 1 Pick. (Mass.) 295 ; Badlam 
 
 man, 11 Conn. 351. v. Tucker, id. 389 ; Brooks v. Pow- 
 
 ' Stanton v. Commonwealth, 2 ers, 15 Mass. 247 ; Haskell V. Greely, 
 
 Dana (Ky.), 397 ; Reed v. Jewett, 5 3 Me. 425. 
 
 I
 
 SEC. 33,] PAROL EVIDENCE, RULES RELATING TO. 99 
 
 way of establishing or rebutting fraud, as it respects credit- 
 ors ; but, if it appears that there was no fraud, whether the 
 consideration expressed Avas, in fact, paid, or only agreed to 
 be paid, is immaterial.^ 
 
 Where a deed, absolute on its face, was relied on as a cir- 
 cumstance to show that credit for certain repairs upon the 
 premises was given to the grantee, it was held that the latter 
 might show by parol that the premises were his only in trust 
 for a third person, who received the rents and profits, and 
 that the party making the repairs knew this before he com- 
 menced.^ So in New York, where the master of a ship sued 
 A. for his wages, and on the trial, to show that the defend- 
 ant was lial)le, gave in evidence an absolute bill of sale of 
 the shi[) to the defendant, executed by M., it was held that, 
 as against the master, it was competent for the defendant to 
 prove by parol tliat M. was the real owner, that the bill of 
 sale was given as collateral security by way of mortgage, 
 that the defendant had no interest in the voyage, and that 
 these facts were known to the plaintiff, who contracted with 
 M. originally as to his services.^ 
 
 Sec. 33. When Independent Contract is entered into as an Inducement 
 to the Execution of the Principal Contract. 
 
 Where a verbal contract or promise is made in reference 
 to a collateral matter as an inducement to obtain the execution 
 of the written contract, it may be shown by parol. Thus, in 
 a Pennsylvania case,"* the written agreement was " to trans- 
 port at such times as you may desire, 10,000 tons of coal." 
 The court held that parol evidence was competent to show 
 that the plaintiff refused to sign the contract unless it was 
 inserted that the coal should be furnished before October 1st, 
 and that the defendant then said, " That is understood," and 
 the plaintiff thereupon signed the contract. The court put 
 the admission of the evidence udou the ground that the 
 
 ' See Sparrow v. Smith, 5 Conn. ^ Champlin v. Butler, 18 John. 
 
 113 ; Newbury v. Bulkley, 5 Day (N. Y.) 169. 
 
 <Conn.), 384. * Powelton Coal Co. -w. McShain, 
 
 " Tripp V. Hathaway, 15 Pick. 75 Penn. St. 238 ; Campbell v. Mc- 
 
 {Masa. ) 47. Clenachan, 6 S. & R. (Penn.) 171 . 
 
 «
 
 100 EVIDENCE. [chap. II. 
 
 attempt of the defendant afterwards to take advantage of the 
 oniis.-^i<>n of the promise from the contract was a fraud upon 
 the defendant, who was induced to execute it upon such 
 promise, and consequently that he might show the truth of 
 the matter.^ Tliis rule was acted upon in another case in 
 that State.^ in which evidence was admitted in an action 
 brouirht by a tenant against his landlord for a breach of con- 
 tract, that he was induced to sign the lease upon an oral 
 promise by the landloi'd to build a barn upon the premises 
 Ix'fore harvest time. So, in a Massachusetts case,-"' where the 
 defendant sold the plaintitf a piece of land and a store, and 
 at the siune time, under a certain agreement, not to carry on 
 the same business within certain prescribed limits, it was 
 held that the agreement being a part of the inducement to 
 the purchase, was made upon a valuable consideration, and 
 that parol evidence was admissible to establish it. But in 
 these eases it will be ()l)served that the parol contract was a 
 direct inducement to the execution of the writteji contract, 
 and that the contract did not in any way relate to the sub- 
 ject-matter of the parol contract. In a later case in Massa- 
 chusetts,^ where the consideration of a note consisted in part 
 of the price of a fish stand which had been paid and indorsed 
 on the note, and in })art of an agreement on the part of the 
 })ayce not to engage in the fish business in competition with 
 the promisor, and the terms and conditions of the sale were 
 reduced to writing, which contained no reference to the good 
 will of the business, it was held in an action on the note 
 between the original parties that the promisor could not prove 
 in defense tliat at the time of the sale a verbal contract was 
 made that the payee would not engage in the fish business 
 for a year, and that this agreement had been violated. In a 
 still later case in that State, ^ it was held that if a written 
 contract is entered into by which one promises to give to 
 
 ' Clark V. Partridfje, 2 Penn. St. * Wilson v. Sherburne, 6 Cush. 
 
 13 ; Button v. Tiklen, 14 id. 49. (Mass.) 68. 
 
 » Shugart v. Moore, 78 Penn. St. " Doyle t). Dixon, 12 Allen (Mass.), 
 
 469. 576. 
 
 * Pierce v. Woodward, 6 Pick. 
 (Ma&s.) 206.
 
 SEC. 34.] PAROL EVIDENCE, RULES RELATING TO. 101 
 
 another " a free and fnll possession of his stock and store for 
 the full term of five years at a yearly rent as understood by 
 both," for which a certain bonus and also a market price for 
 the stock are agreed to be paid, parol evidence is not admis- 
 sible to show that this was executed only as a memorandum 
 and partial statement of the agreement for a special purpose, 
 and that another independent oral agreement was made at 
 the same time and upon the same consideration that the 
 seller should not engage in a similar business in the same 
 place for five years. 
 
 Sec. 34. Several Writings may be looked at to determine the real Con- 
 tract and Intention of the Parties. 
 
 Where two or more contemporaneous writings relating to 
 the same subject-matter were entered into by the parties, the 
 court may look to all of them for the purpose of ascertaining 
 the real intention of the parties ; and if there is any discrep- 
 ancy between them, it is a question of fact for the jury what 
 their real intention was,^ provided the papers are all of equal 
 solenmity with the principal document, and that no oral tes- 
 timony is required for the purpose of connecting them there- 
 with."- In a recent Massachusetts case^ parol evidence was 
 admitted to show the intention of the parties as to the pay- 
 ment of interest upon notes which upon their face did not 
 bear interest. But in that case the notes were secured by 
 mortgage upon real estate, which was conditioned to be void 
 upon the payment of the aggregate amount of the notes 
 within eighteen months from date, with interest at the rate of 
 six per cent per annum. The notes and mortgage were paid, 
 together with the interest thereon, and the defendants (the 
 payers) brought an action against the plaintifts to recover 
 back the interest. The plaintifts then brought a bill in 
 equity to restrain the prosecution of the action at law upon 
 
 ' Payson v. Lamson, 134 Mass. Dick, 10 Pet. (U. S.) 482 ; Gale v. 
 
 593. Williamson, 8 M. & W. 405 ; Hunt 
 
 * Leeds v. Lancashire, 2 Camp. v. Livermore, 5 Pick. (Mass.) 395; 
 
 205 ; Hartley v. Wilkinson, 4 Camp. Stone v. Metcalf, 1 Stark. 53. 
 127; Bell v. Bruen, 17 Pet. (U. S.) ' Payson v. Lamson, 134 Mass. 
 
 761 ; Couch V. Meeker, 2 Conn. 302 ; 593. 
 Davlin v. Hill, 14 Me. 434 ; Lee v.
 
 Jir' EVIDENCE. [CHAP. II, 
 
 the «Tound tliat the uiulorstaiuling of tlio parties was, that 
 the notes were to hear interest, but through the fraud of the 
 defendants, and througii aceident and mistake upon their own 
 part, the notes were thawn witiiout interest, and claiming 
 that they were rein(>diU'ss at hiw. The court dismissed the 
 l>ill, Allen, J., saying : " Where two papers are executed 
 at the same time, rehiting to the same contract or trans- 
 action, both may be k)oked at for the purpose of showing 
 what the actual contract or transaction was. If, on exam- 
 ination, it ap[)ears that they are in some respects inconsistent, 
 as, for exam[)le, if a contract is executed in duplicate, and 
 tlie two })art.s, which ought to l)e alike, are found to be dif- 
 ferent, or if a mortgage does not correspond with the note 
 Avhich it was intended to secure, it is apparent that the incon- 
 sistency must have occurred through some mistake or acci- 
 dent. It is certainly not to be supposed that the parties have 
 understandingly intended to execute and deliver, as parts of 
 the same tiansaetioii, papers which are inconsistent with 
 themselves ; and if it appears that they have done so, it is 
 natural and reasonal)!e to infer that one of the pajjcrs Avas so 
 executed and delivered l)y mistake. In such case, it not being 
 apimrenl on the face of the ^ya-pers lohich one expresses the 
 real intention and agreement of the parties, there is no good 
 reason lohy extrinsic evidence should not be received in a court 
 of law to show the fact. Each paper may l)c put in evidence 
 as an admission or declaration of whatever is therein con- 
 tained. An argument may also be drawn from the circum- 
 stances of any particular case that one of the papers would 
 be more likely to express the true meaning of the parties 
 tiian the other. But there is no legal presumption to that 
 eileet. There l)eing then two inconsistent writings, l)oth 
 admissible Jis evidence of the transaction to which both 
 relate, and there being no legal presumption in favor of 
 either, but it l)eing a question of fact which correctly repre- 
 sents the agreement of the parties, we should be slow to 
 admit that a court of law, encountering such a state of facts, 
 would be powerless to deal with it, and unable to consider 
 other evidence to show which paper was delivered under- 
 standingly, and which through mistake. On the contrary^
 
 SEC. 34.] PAROL EVIDENCE, RULES RELATING TO. 1Q3 
 
 yve are of opinion that, on the trial of the action at law, it 
 would be entirely competent for the present defendants, on 
 the one hand, to show by extrinsic evidence that the notes 
 expressed the real understanding and agreement of the par- 
 ties, or for the present plaintiffs, on the other hand, to show 
 in like manner that the mortgage expressed such understand- 
 ing and agreement. 
 
 "The decision of this court, when the action at law was 
 before it on exceptions, was entirely consistent with this 
 view. The presiding judge at the trial had ruled, as matter 
 of law, that, by the terms of the mortgage, the debt secured 
 thereby was $30,000 and interest, and that it was not com- 
 petent for the present defendants to prove that the notes con- 
 stituted the entire mortgage debt, and that no other debt or 
 claim existed or was intended to be secured than the notes 
 without interest, and that the present plaintiffs had no right 
 or claim to recover interest upon the notes, or in any way. 
 This ruling was reversed by this coiu't, and it was held that 
 the mortgage was not conclusive as to the amount of the 
 mortgage debt, that the notes might also be looked at, and 
 that it might be shown by evidence that they expressed the 
 true amount of indeljtedness. That decision does not hold, 
 and does not imply, that it would not be competent for the 
 present plaintiffs to meet that evidence by showing that in 
 fact the mortgage expressed the true amount of indebtedness. 
 There is no intimation that the notes are the exclusive evi- 
 dence for this purpose.^ 
 
 " Nor is there anything in former decisions of this court 
 which upholds that view. It has indeed often been held, in 
 this State and elsewhere, that where there is some lack of 
 conformity between a mortgage and the note which it was 
 intended to secure, parol evidence is admissible to identity 
 the note.^ So, on the other hand, it has been held that a 
 mortgage is jmma facie evidence of the existence of a debt 
 corresponding with that described therein, and that the note 
 
 ' Hampton Cotton Mills v. Pay- (Mass.), 78, 80; Baxter tJ. Mclntire, 
 son, 130 Mass. 88. 13 Gray (Mass.), 168 ; Hough v. 
 
 ' Goddard v. Sawyer, 9 Allen Bailey, 32 Conn. 288.
 
 ig4 EVIDENCE. [CHAr. II. 
 
 is not the only evidence of the debt secured.^ So where a 
 niort<nio-e was given to secure two notes "for the sum of 
 $500," and the notes, being produced and identified, were 
 for $500 each, it was held that it might be shown by the 
 notes and other evidence that they correctly represented the 
 indebtedness secured by the mortgage.^ So where a person 
 had guaranteed a note for $25G, and took for his indemnity 
 a niortiraire which erroneously described the note as for $236, 
 and his title as mortgagee was questioned by an attaching 
 officer, on the ground that the mortgage was either fraudu- 
 lent at the outset or had been discharged, it was held com- 
 petent for him to produce the note, with evidence of its 
 identity as the liability intended to be secured, for the 
 purpose of showing that there was a real liability which had 
 not been extinguished. It was entirely immaterial to ascer- 
 tain whether the amount due was $236 or $256. The holder 
 of the note was no party to the action.^ So in a case where 
 there was no inconsistency between the phraseology of the 
 note and mortgage, it was held that the legal incident of three 
 days' grace which attached to the note should be assumed to 
 have been contemplated by the parties as incident to the 
 mortgage debt, and that therefore a writ of entry to foreclose 
 the mortgage for breach of condition could not properly be 
 brought till after the expiration of the days of grace ; and 
 that in such case, there being but one promise to pay money, 
 and there being no doubt as to the phraseology in which that 
 promise was expressed, the note was the legitimate evidence 
 of the promise.'* There is nothing in any of these cases to 
 show, or to imply, that the note will, as matter of law, be 
 deemed to be the exclusive evidence of the mortgage debt, 
 in a case where the note and mortgage are partially incon- 
 sistent with each other. In such case there is no presumption 
 one way or the other, but the question is to be determined 
 as a matter of fact." 
 
 A written contract, though bona fide between those who 
 
 ' Smith V. Johns, 3 Gray (Mass.), = Johns t). Church, 12 Pick. (Mass.) 
 
 51"7- 507 ; 23 Am. Dec. 651. 
 
 ' Craft? V. Crafts, 13 Gray (Mass.), * Coffin v. Loring, 5 Allen (Mass.), 
 
 360. 153. 
 
 I
 
 SEC. 34.] PAROL EVIDENCE, RULES RELATING TO. 105 
 
 made it and are parties to it, may operate as a fraud upon 
 third parties ; aud in such cases parol evidence may be in- 
 troduced in a suit between such third party and a party to the 
 contract, though varying the writing, to show what was the 
 truth in regard to the transactions. The rule that parol evi- 
 dence will not be received to vary, explain or control a written 
 instrument is confined entirely to actions between the parties 
 thereto, oi- their privies in interest. In actions between 
 strangers thereto, the real tacts may be shown, or any fact 
 that changes the legal efiect of tlie contract, or show^s the 
 real intention, object or purpose of the contract ; and this 
 is the rule also in cases where the contract is offered in evi- 
 dence in an action between a stranger to the contract and 
 one of the parties thereto ; ^ nor does it apply in actions 
 between the sureties, as they are not regarded as estopped, 
 by the provisions of the contract, from showing any agree- 
 ment between themselves, or the party for whom they be- 
 came surety. The rule is confined exclusively to the parties 
 actually contracting as principals.^ 
 
 Therefore a written instrument may be contradicted by 
 the party making it, when oftered in evidence in a suit to 
 which a stranger to the instrument is a party.^ 
 
 So in a suit between a party to a written conti'act and a 
 stranger to it, neither party is concluded by the terms of 
 the writing, but either may show by parol that the contract 
 was otherwise than the writing shows. "* 
 
 The rule that parol evidence is inadmissible to contradict 
 or vary the terms of a valid written instrument, is applied 
 
 ' Barreda v. Silsbee, 21 How. (U. Truscott, 53 Bai-lj. (N. Y.) 200 ; 
 
 S.) 146; Biake v. Hall, 19 La. An. 49 ; Woodman v. Eastman, 10 N. H. 359 ; 
 
 Woodman v. Eastman, 10 N. H. Hughes v. Sandall, 25 Tex. 162; 
 
 359; Edgerly V. Emerson, 23 N. H. Bareda ■?). Silsbee, 21 How. (U. S.) 
 
 555 ; Farbush v. Goodwin, 25 N. H. 146 ; Blake v. Hall, 19 La. Ann. 49 ; 
 
 425 ; New Berlin v. Norwich, 10 Forbush v. Goodwin, 25 N. H. 425 ; 
 
 Johns. (N. Y.) 229 ; Reynolds v. Reynolds v. Magness, 2 Ired. (N. 
 
 Magness, 2 Ired. (N. C.) L. 26; C.) 26. 
 
 Hughes V. Sandal, 25 Tex. 162 ; ^ Thomas v. Truscott, ante. 
 
 Venable v. Thompson, 11 Ala. 147; ^ Venable v. Thompson, 11 Ala. 
 
 Stradder v. Lambeth, 7 B. Monr. 147. 
 
 (Ky.) 589; Van Eman v. Starch- " Stradder ■!). Lambeth, 7 B. Mon, 
 
 field, 10 Minn. 255 ; Thomas v. (Ky.) 589.
 
 1()(J EVIDENCE. [chap. II. 
 
 only ill -^uits between the parties to the instrument and their 
 privies in interest,' and docs not apply to cases arising be- 
 tween sureties ; it is limited to the stipulations between the 
 parties actually contracting with each other by the written 
 instrument.^ 
 
 Sec. 35. Judicial Records. 
 
 Judicial records, import absolute verity on their face, and 
 cannot be impeached by parol,^ and all the questions relating 
 to the time when it was, in fact, made, on what authority 
 made, and whether its recitals are true or not, must be set- 
 tled by reference to the record alone."* But when the pre- 
 cise hour of the day upon which a judgment was entered 
 becomes important, and the record is silent upon that point, 
 it may be shown by parol. ^ So where the record is silent as 
 to the precise claim upon which the judgment was predi- 
 cated, it may be shown by reference to the pleadings or l)y 
 parol, as to identify the note on which it was rendered.^ The 
 parties to a judgment may be identified by parol j'^ and 
 v^jiere proceedings arc brought to correct a mistake in a judg- 
 ment, evidence is admissible outside of the judgment to show 
 the mistake.® Indeed, upon grounds of public policy, and 
 that there may be an end to disputes, judicial records are 
 held conclusive as to the facts stated therein as to the parties 
 and their privies, and are a bar to all incpiiry as to the truth 
 or falsity of the facts stated therein.^ In general, a judg- 
 
 ' Van Eman v. Stanchfiekl, 10 before the death of the defendant 
 
 Minn. 255. therein, it was not error to admit 
 
 ' Thninas v. Tniscott, 53 Barb, the testimony of the clerk who en- 
 
 (N. Y.)200. tered the judgment, that it could 
 
 * Miu-rah r. State, 51 Miss. 652 ; not have been entered earlier than 
 Di'ig-gs V. Morgan, 2 La. An. 151 ; eight o'clock in the morning. 
 Taylor 1'. Jones, 3 id. 619. " Hampton v. Dean, 4 Tex. 455; 
 
 * Heinington v. McCoUom, 73 111. Parker t). Thompson, 3 Pick. (Mass.) 
 476. Its date cannot be contra- 429. 
 
 dieted by parol. "Wiley v. South- ' Root tJ. Fellows, 6 Cush. (Mass.) 
 
 erland, 41 111. 25. 29. 
 
 * In Lans^ing v. Pawson, 38 Penn. * .Icnkins v. Long, 23 Ind. 460. 
 St. 480, it was held that in an issue ' Aldndge v. Haines, 2 B. & Ad. 
 as to whether a judgment upon 408. 
 
 wan-.ant of attomey was entered
 
 SEC. 36.J PAROL EVIDENCE, RULES RELATING TO. 107 
 
 ment inter ^partes will bind only the parties and their privies, 
 but a judgment in rem is binding upon all the world, even 
 though it is not pleaded.^ 
 
 Sec. 36. Assignments. 
 
 Where property or choses in action are assigned by an in- 
 strument in writing, which upon its face purports to embrace 
 the entire contract, it is subject, at law, to the general rule 
 that parol evidence is not admissible to vary or contradict 
 it,^ but in equity such evidence is admissible to show that, 
 although absolute in form, it is not so in fact,^ as that an as- 
 signment of a mortgage to one person by name, was in fact 
 intended for the benefit of another, as well as himself.^ The 
 real consideration of an assignment may be shown, even 
 though the efiect is to show the object of the assignment.^ 
 So fraud may be shown ; ^ so, too, parol evidence may be 
 given to show and correct a merely clerical error therein, as 
 in making up the schedule when a note or demand is mis- 
 described, for the purpose of identifying the note or demand 
 and fixing the true amount, evidence of the mistake may be 
 shown -J^ and if the assiornment is general on its face and ad- 
 mitted to be for a different purpose, ptu'ol evidence of the 
 intent of the parties may be given.^ Evidence is not ad- 
 missible to show that other property than that named in the 
 agreement was intended to have been embraced therein ;^ 
 nor can it be shown that an assignment of a mortgage was 
 intended to be a discharge except for the purpose of prov- 
 
 * Hannsfoi'd v. Hunn, 2 C. & P. intended for the benefit of only one 
 155 ; Magrath v. Hardy, 4 Bing. N. of the assignees. 
 
 C. 796. " Lockwood v. Canfield, 20 Cal. 
 
 * Osgood V. Davis, 18 Me. 146 ; 126 ; Galwey's Appeal, 34 Peiin. St. 
 Durgin V. Ireland, 14 N. Y. 822. 242. 
 
 ^ Rhodas ■». Fai-mer, 17 How. (U. ' Russell v. Tuttle, 2 Root (Conn.), 
 
 S.) 464. 22. 
 
 * Laeket «. Child, 11 Ala. 640 ; ' Marsh v. Mandeville, 28 Miss. 
 Brown -e. Isbel, 11 id. 109. But see 122; Piatt w. Hyde, 8 Iowa, 386. 
 Aldrich v. Hapgood, 39 Vt. 617, * Moses v. Murgatroyd, 1 John. 
 where it was held that where an as- Ch. (N. Y.) 119. 
 
 signment was made ostensibly for " Driscoll v. Fiske, 21 Pick, 
 the benefit of ^ftree persons, it could (Mass.) 503 ; Taylors. Sayre, 24 N. 
 not be shown to have really been J. L. 647.
 
 108 EVIDENCE. [chap. II. 
 
 ill*'' fiuucl ;' or that an asssigiiinciit of stock under seal, which 
 is :il)solute on its face, was intended as a mortgage ;^ or that, 
 at the time when an assignment of stock was made, the as- 
 signor promised to make a good and effectual title thereto.' 
 
 Sec. 37. Bills of Lading. 
 
 Bills of lading are regarded as of a dual nature, being 
 both receipts and contracts, and, so far as they partake of the 
 nature of the receipts, parol evidence is admissible to explain 
 or vary them, as, to that extent, they are only regarded as 
 prima facie evidence.* But, so far as the bill expresses the 
 actual contract between the carrier and shipper, parol evi- 
 dence is not admissible to alter, vary or explain it.^ 
 
 Thus it is held that a bill of lading or railroad receipt 
 which states that the goods are received in good order, is to 
 that extent only a receipt, and does not estop the carrier 
 from showing that the goods were really in a damaged con- 
 dition. But such proof must be confined to defects not 
 known to the carrier when the receipt was given.® 
 
 So to show an error or mistake as to the quantity of 
 goods." So, where it is signed by an agent to show Avho the 
 principal is.^ But representations made by the carrier before 
 the bill of lading was executed, as to the depth of water at 
 the place of landing, cannot be given in evidence by him to 
 
 • Hamand v. Howard, 3 Met. wood, 9 Barb. (N. Y.) 77; McTyer 
 (Mass.) 548. v. Steele, 26 Ala 487; Wolfe v. 
 
 ' Bond V. Susquehanna Co , 6 Myers, 3 Sandf. (N. Y.) 7. 
 H. & J (Md.) 128. But this only ' McTyer ij. Steele, ante; Steam- 
 applies in those States wherein the boat Missouri v. Webb, 9 Mo. 193 ; 
 old distinction as to instruments Cheeny v. Holly, 14 Wend. (N. Y.) 
 under seal is preserved. 26; Jones v. Warner, 11 Conn. 40 ; 
 
 ' Osgood V. Davis, 18 Me. 146. Cox v. Paterson, 30 Ala. 608 ; Arnold 
 
 * Steamboat Missouri v. Webb, 9 v. Jones, 26 Tex. 335 ; Shaw v. Gard- 
 Mo. 193 ; Sutton v. Kettell, 1 Sprague ner, 12 Gray (Mass.), 488 ; Gardner 
 (U. S C. C), 309 ; The Tusket, id. v. Chase, 2 R. I. 112 ; White v. Van 
 71 ; Great Western R. R. Co. v. Mc- Kirk, 25 Barb. (N. Y.) 16 
 Donald, 18 111. 172 ; Hendricks v. « Blade v. Chicago, &c., R. R. Co., 
 Steamer Morning Star, 18 La. An. 10 Wis. 4. 
 
 353 ; Baltimore, &c., Steamboat Co. ' Graves v Howard, 9 Barb. (N. 
 
 V. Browne, .54 Penn. St. 77 ; O'Brien Y.) 477. 
 
 v. Gilchrist. 34 Me. ,554 ; Atwell v. « Goddard v. Mullany, 52 Barb. 
 
 Miller, 11 Md. 348 ; Graves v. Har- (N. Y.) 87. 
 
 I
 
 SEC. 38.J PAROL EVIDENCE, RULES RELATING TO. 109 
 
 excuse his liability for a loss of the goods or injury thereto ;^ 
 nor that an additional quantity of goods should be carried ;^ 
 or that the rate of transportation was to be dependent upon 
 the price obtained for the goods f nor indeed in any case 
 where the eflect of the evidence is to vary the terms of the 
 contract as expressed in the bill.^ But a bill of lading 
 may be varied by a subsequent parol agreement, and such 
 supplemental contract may be shown by parol evidence.^ 
 
 Sec. 38. Bills of Sale. 
 
 Bills of sale, absolute upon their face, cannot be shown by 
 parol to be in fact only intended as collateral security, par- 
 ticularly where the right of third persons will be affected 
 by such proof. ^ But in order to exclude such proof, they 
 must express a contract ; a mere bill of goods, as that A. 
 bought of B. certain articles at a certain price, " six per cent 
 off for cash," is not a contract, and is open to parol proof to 
 show any fact connected with and material to the transac- 
 tion.''' Where, however, the bill of sale is in the nature of 
 a contract, it is, like all other contracts, presumed to embody 
 all that was agreed upon between the parties, and is not 
 open to explanation by parol, but is subject to the same rules 
 in this respect as other contracts. Thus, where a sale of 
 property, reduced to writing, contains all the elements 
 requisite to show a contract between the parties, but con- 
 tains no warranty of the goods, parol proof is not, in the 
 absence of fraud, admissible to show a warranty in fact.^ So 
 where a business, with all the good will belonging thereto, is 
 
 ' Shawl). Gardner, 12 Gray (Mass.), '' Linsley v. Lovely, 26 Vt. 123; 
 
 488. Silliman v. Tuttle, 45 Barb. (N. Y.) 
 
 ' Sayward v. Stevens, 3 id. 97. 171 ; Filking- v. Whyland, 24 N. Y. 
 
 ' Gardner v. Chase, 2 R. I. 112. 338 ; Dana v Fiedler, 12 id. 40 ; 
 
 * Arnold v. Jones, 26 Tex. 335 ; Wentworth v. Buhler, 3 E. D. S. 
 
 White V. Van Kirk, 25 Barb. (N. (N. Y. C. P.) 305. 
 
 Y.) 16. ' « Houghton v. Carpenter, 40 Vt. 
 
 " Atwell V. Miller, 11 Md. 348. 588 ; Jolliffe v. Collins, 21 Mo. 338 ; 
 
 ° Sanborn v. Chittenden, 27 Vt. Heyward v. Wallace, 4 Strobh. (S. 
 
 171 ; Champlin v. Butler, 18 John. C.) 181; Pickard v. McCormick, 11 
 
 (N. Y.) 169; Hazard v. Loring-, 10 Mich. 68. 
 Cush. (Mass.) 269 ; Hayward v. Wal- 
 lace, 4 Strobh. (S. C.) 181.
 
 110 EVIDENCE. I CHAP. II. 
 
 conveyed by a l)ill of sale, piirol proof i.s not udmisaible to 
 show that the vendor agreed not to establish a similar busi- 
 ness in the town ;^ or to show that a bill of sale was merely 
 intended as a trust f or that it was merely hitended as an 
 assi'nnuent ;^ or that a .sale was made l)y two persons when 
 the bill of sale was only executed by one ;' or that it was 
 o-iven merely to enable the vendee to get possession of the 
 l)roperty as agent of the vendor ;* or that it was intended 
 to embrace other i)ropcrty than that named therein f or 
 that property within its provisions was in fact excepted ]'' 
 nor to show that the title and possession of the property 
 was not to vest in the vendee immediately f nor in fact to 
 vary in any respect the terms or conditions of the sale.^ But 
 it must be remembered that, in order to exclude such proof, 
 the bill of sale must contain all the essential elements of a 
 contract, leaving nothing open to parol proof. As to 
 Avhether it is a contract which the courts can reasonably 
 construe, is a question for the court.^" 
 
 Sec. 39. Leases. 
 
 It is not competent to show by parol that certain other 
 premises were intended to be included in a lease ; or that cer- 
 tain premises named therein were intended to have been 
 excluded ;^^ or that more or less rent was agreed upon ; 
 
 ' Smith V. Gibbs, 44 N. H. 335. Mich. 68 ; Linsley v. Lovely, 26 Vt. 
 
 " Owen V. Shai-p, 12 Leigh (Va.), 123. 
 
 427 ; Trumbo v. Cartwright, A. K. " Barton v. Dawes. 10 C. B. 261 ; 
 
 Marsh. (Ky.) 532. Meres v. Ansell, 3 Wils. 275 ; Nor- 
 
 " Fra^ier v. Sneath, 3 Nev. 120. ton v. Webster, 12 Ad. & El. 442 ; 
 
 * Wren v. Wardlaw, Minor (Ala.), Hope v. Atkins, 1 Price, 143. Where 
 
 363. the lease contains no warranty, ex- 
 
 66 
 
 McClenney V.Floyd, 10 Tex. 1,50. press or implied, that the premises 
 
 McCloskey v. McCoi-mick, 37 111. are fit for occupation, it is not com- 
 petent to show that the landlord 
 
 ' Harrell v. Doi-rance, 9 Fla. 490. represented them to be so. , Dutton 
 
 • Rennell v. Kimball, 5 Allen ,,. Gerrish, 9 Cush. (Mass.) 89. 
 
 (Ma.ss.), 356. Where an assignment of a lease is 
 
 " Peaslee v. Stafford, 1 N. Chip, made in wTiting, it is not competent 
 
 (Vt.) 173 ; Davis v. Moody, 15 Ga. to show that the assignee agreed to 
 
 ^'^- pay the accrued rent. Graves v. 
 
 "* Houghton V. Carpenter, 40 Vt. Porter. 11 Barb. (N. Y.) 192. Where 
 
 588 ; Pickard v. McCormick, 11 a lease abrogates a previous writ-
 
 SEC. 39.J TAKOL EVIDENCE, RULES RELATING TO. 
 
 Ill 
 
 or that it was to be apportioned ;^ or that it was to 
 be paid at a different time from that named in the lease f or 
 that the lease was to commence at a later date ;^ or that the 
 tenant was to pay the taxes, etc.;^ or that other rights and 
 privileges than those named in the lease were given ; ^ 
 
 ten agreement, it is not competent 
 to show that it was not intended to 
 have that effect. Tibbetts «. Percy, 
 24 Barb. (N. Y ) 39. Under a lease 
 of coal mines, containing no stij^u- 
 lation as to the quantity of coal to 
 be mined, but fixing a certain sum 
 per bushel as the rent to be paid, 
 parol evidence is not admissible to 
 show that the lessee agreed to mine 
 any particular quantity, or even all 
 that he could. Lyon v. Miller, 24 
 Penn., St. 392. When a party seeks 
 to enforce a written contract, al- 
 though the defendant cannot intro- 
 duce parol evidence to alter or vary 
 it, yet, if the plaintiff introduces 
 evidence as to a contract not em- 
 braced in the writing, the defend- 
 ant is at liberty to introduce evi- 
 dence of a different contract for the 
 purpose of contradicting the plain- 
 tiff's evidence, although it has the 
 effect to vary the terms of the wi"it- 
 ten contract. Arbeiter v. Day, 38 
 Conn . 15.5. Where there is no latent 
 ambiguity, parol evidence is not ad- 
 missible. Thus, where lands leased 
 were bounded on the north line of 
 a town, parol evidence was held in- 
 admissible to show that a different 
 line had been understood by the 
 parties to be the true boundai-y. 
 So where a lease was in writing, 
 and there were only two exceptions 
 therein, it was held that it could 
 not be shown by parol that the les- 
 sor intended to make still another, 
 Haney v. Newton, 7 Pick. (Mass.) 
 29 ; and generally it may be said 
 that parol evidence is not admissi- 
 ble to prove an agreement that di- 
 rectly contradicts the lease, Junger- 
 
 man v. Bovee, 19 Cal. 354 ; Carpen- 
 ter tj. Shanklin, 7 Blackf. (Ind.) 308 ; 
 or that it was intended to have a 
 diflerent effect from that which it 
 purpoi'ts to have, as, that it was 
 intended as a mortgage, Stewart v. 
 Murray, 13 Minn. 426 ; or that it 
 was understood that the lessee might 
 occupy the premises for any pur- 
 pose, when the use was specially 
 restncted in the lease. Sientes v. 
 Odier, 17 La. An. 153. 
 
 ' Flinn v. Calow, 1 M. & G. 589 ; 
 Preston v. Merceau, 2 W. Bl. 1249. 
 But if no rent is named in the lease, 
 parol evidence is admissible to show 
 what rent was agreed upon. King 
 V. Woodruff, 23 Conn. 66. 
 
 "^ Thus, in Carpenter v. Shanklin, 
 7 Blackf. (Ind.) 308, by lease of 
 real estate executed by the lessor 
 and lessee, under their seals, for 
 one yeai', the time fixed for the 
 payment of the last half year's 
 rent was Februai-y 1, 1841. It was 
 held, that parol evidence that the 
 said rent was not due until March 
 1, 1841, was inadmissible ; also, 
 that the landlord, in such case, had 
 a preference for said rent over an 
 execution levied February 1, 1841, 
 on the tenant's goods. 
 
 ^ Henson w Cooper, 3 Scott's N 
 R. 48. 
 
 * Rich V. Jackson, 4 Br. P. C. C. 
 514, cited and reported in full in 
 note c, 6 Ves. 334. 
 
 * Jungerman v. Bovee, 19 Cal. 
 354 ; Sientes v. Odier, 17 La. An. 
 153. But where the lease provides 
 that he shall hold the lease subject 
 to " manor regulations," or " mu- 
 nicipal regulations," etc., the lessee
 
 112 
 
 EVIDENCE. 
 
 [ciiAP, n. 
 
 or that the laiulloid agreed to repair the premises;' or, 
 iiulec'd, where the lease is explicit, is parol evidence even 
 admissible to aid in its construction. ^ But as previously 
 stated, there are exceptions to the rule, and in addition to 
 those exceptions it may be said that parol evidence is always 
 ailmissil)le to defeat the lease, as, to show that it was made 
 lor an illeiral purpose,^ or that certain formalities required 
 by law were not observed ; '* or, indeed, fraud or anything 
 that tends to show that the deed is void in law may be 
 shown.' So, too, it is competent to show by parol evidence 
 
 may show by parol what such reg- 
 ulations are. Dorsey t\ Eagle, 7 
 G. & J. (M(l.) 321. "Where certain 
 specific exceptions are made in a 
 lease, it cannot be shown by parol 
 that other exceptions were agreed 
 upon. Hovey v. Newton, 7 Pick. 
 (Mass.) 29. 
 
 • Mayer v. Muller, 1 Hilt. (N. Y. 
 C. P.) 491 ; Post V. Vetter, 2 E. D. 
 S. (N. Y. C. P.) 248 ; New York v. 
 Price, 5 Sandf. (N. Y. Supr. Ct.) 542. 
 In Howard v. Thomas, 22 Ohio St. 
 201, the plaintiff" and defendant exe- 
 cuted a written agi-eement for the 
 lease of a house for the term of one 
 year, at the rent of $100. In an ac- 
 tion by the plaintiff" against the de- 
 fendant for not reiiairing the roof of 
 the house, the plaintiff" oft"ered to 
 prove, by parol, that, at the time of 
 the execution of the written agree- 
 ment, he refused to sign it, unless 
 the defendant would promise to re- 
 pair the roof of the house ; and 
 thei-eupon the defendant promised 
 to do 80, and he, the plaintiff, in con- 
 sideration of such promise, signed 
 the ^vritten agreement. It was held, 
 that such evidence was inadmissible. 
 
 ' 2 Best on Evidence ("Wood's 
 ed.), note, page 888. 
 
 ' Doe V. Allen, 8 T. R. 148 ; Rex 
 V. Northwiiigfield, 1 B. & Ad. 912 ; 
 Lightfoot i\ Tenant, 1 B. & P. 555. 
 "Where fiaud or illegality are aver- 
 
 red, parol evidence is always ad- 
 missible to establish it, whatever 
 may be its effect upon the contract. 
 Thus, it may be shown that a ma- 
 terial part of the contract has been 
 inserted or altered by the fraud of 
 the other party, Baltimore Steam- 
 boat Co. V. Brown, 54 Penn. St. 77 j 
 Pierce v. "Wilson, 34 Ala. 596 ; Town- 
 send V. Cowler, 31 id. 428 ; Hunter 
 V. Biglyon, 30 111. 228 ; Hamilton v. 
 Congers, 28 Ga. 276 ; Sanford v. 
 Handy, 23 "Wend. (N. Y.) 126 ; Akin 
 V. Drummond, 2 La. An. 92 ; Gatting 
 V. Newell, 9 Ind. 572 ; Davis v. 
 Stern, 15 La. An. 177 ; Bartle v. 
 "Vosburg, 2 Grant's Cas. (Penn.) 277; 
 Selden v. Myers, 20 How. (U. S.) 
 506 ; or that the other party by fraud 
 has prevented the reduction of the 
 whole contract to writing. Phyfe v. 
 "WardweU, 2 Edw. Ch. (N. Y.) 47 ; 
 Elliott V. Conwell, 13 Miss. 91 ; 
 "Wesley v. Thomas, 6 H. & J. (Md.) 
 24 ; Kennedy v. Kennedy, 2 Ala. 
 571 ; Chetwood v. Britain, 2 N. J. 
 Eq. 438 ; Sull v. Cass, 43 N. H. 62 ; 
 Martineau v. May, 18 Wis. 54. As 
 to proof of illegality, see Lazare v. 
 Jacques, 15 La. An. 599 ; Corbin v. 
 Sistrunk, 19 Ala. 203. 
 
 * Kelfe V. Ambro.sse, 7 T. R. 551. 
 
 * Goodwin v. Hubbard, 15 Mass. 
 219 ; Boyer v. Grundy, 3 Pet. (U. 
 S.) 219 ; RusselU. Rogers, 15 Wend. 
 (N. Y.) 351 ; Prentiss v. Russ, 16
 
 SEC. 39.J PAROL EVIDENCE, RULES RELATING TO, 
 
 113 
 
 to what premises the lease applies, when, although the lease 
 upon its face is clearly enough expressed, yet an ambiguity 
 arises from extrinsic circumstances. Thus, where the lease 
 is of "The Lanier House," it is competent to show what 
 premises are connected and used with it, and what extent 
 of building and grounds are included under the expres- 
 sion, and testimony as to what was ordinarily meant in that 
 locality by the words is admissible ; ^ or what premises are 
 understood to be embraced in the words " my home farm,'^ 
 or any other general description of premises.^ Thus, a 
 building niisdescribed as number 38, may be shown in fact 
 to mean number 35 ]^ especially would this be so, if it was 
 
 I 
 I 
 
 Me. 30 ; Wren v. Woodrow, 1 Ala. 
 363. Where fraud is alleged, any 
 consideration or fact, however con- 
 trary to the averment of a deed, may 
 be proved to show the fraudulent 
 nature of the transaction, Roscoe's 
 Ev. (13th ed.) 22 ; Paxton v. Pop- 
 ham, 9 East, 421 ; for fraud is an 
 extrinsic and collateral matter that 
 avoids all transactions, and the same 
 is true as to illegality. Chandler v. 
 Ford, 3 Ad. & El. 649 ; Collins %). 
 Blantern, 2 Smith's S. C, notes. 
 
 > Harris v. Dub, 57 Ga. 77 ; Sar- 
 gent V. Adams, 3 Gray (Mass.), 72. 
 
 "" Hutchins v. Scott, 2 M. & W. 
 816 ; Hutchins v. Groom, 5 C. B. 
 515. Where there was an agree- 
 ment in writing to lease for a term 
 of years "■ The Adams House, situ- 
 ate on Washington street, Boston," 
 it was held that it might be proved 
 by parol to have been intended by 
 the parties tf) include only so much 
 of the building as was fitted up as 
 a hotel, by the name of the Adams 
 House, and not the separate shops 
 which occupied the whole of the 
 ground floor, except the entrance to 
 the hotel. Sargent v. Adams, 3 
 Gray (Mass.), 72. Whether certain 
 premises are or are not embi-aced 
 in the lease, when the lease does not 
 
 8 
 
 explicitly describe them, is always 
 open to parol proof. Ci-awford v, 
 Morris, 5 Gratt. (Va.) 90; Guy v. 
 Barnes, 29 Ind. 103 ; Corbett v. Cos- 
 tello, 8 La. An. 427 ; D'Aquin v. 
 Barbour, 4 id. 441. In Chamberlaia 
 V. Letson, 5 N. J. L. 152, the lease 
 demised a " house and lot contain- 
 ing three acres, more or less." The 
 lessee claimed seven acres, the whole 
 being in one lot not separated by a 
 fence. Parol evidence was admitted 
 to show that the original lot con- 
 nected with the house was about 
 three acres ; that the lessor added 
 about four acres by purchase, and 
 occupied the whole at the time of the 
 demise, and that the lease was in- 
 tended by the parties to cover only 
 the original three acres, visible re- 
 mains of the old original line being 
 still visible. A call in a grant for 
 a line beginning at the " north 
 coraer of R.'s store," where the 
 store stands squarely east and west 
 and has two north comers, is a 
 latent ambiguity, and may be ex- 
 plained by parol proof. Lawrence 
 V. Hyman, 79 N. C. 209. 
 
 ^ Hutchins v. Scott, ante. And 
 even though siich a lease was void 
 to create any interest, if the tenant 
 went into possession of the premises
 
 lU 
 
 EVIDENCE. 
 
 [chap. II. 
 
 shown that the lessor owned imiuber 35, and did not own 
 iiuniher 38, and t!uit the tenant had gone into possession of 35 
 under the lease. But if the landlord owned both, and there 
 was nothing in the lease to indicate that 35 instead of 38 was 
 intended, and the tenant had not gone into possession under 
 the leiise, it would not be competent in a court of law to 
 show that 35 wius intended. Where a iirant is in o-eneral 
 terms, the addition of particular terms operates as a i-estric- 
 tion and limitation upon the grant. Thus, if a lease is of 
 '- the premises on the corner of College and Centre street," 
 the whole of the premises there situated owned by the lessor 
 will pass ; but if, in addition thereto, the words " recently 
 occupied by E. Laporte as a French hotel " are added, the 
 latter clause limits the grant to such part of the [)remises 
 as were occupied ])y E. Laporte for a French hotel, and no 
 more and no less will pass. Therefore, the extent of the 
 grant being rendered uncertain by such restrictive clause, 
 parol evidence is admissible to show what part of the prem- 
 ises was occupied by E. Laporte for a French hotel, and 
 thus to deline the extent of the demiije.^ 
 
 intended, it would be admissible to 
 prove the terms of the tenancy. 
 Bealand v. Hui-st, 3 Starkie, 60. 
 
 ' Alger V. Kennedy, 49 Vt. 109 ; 
 24 Am. Rep. 117. See also Nutting- 
 V. Herbert, 35 N. H. 125. In Con- 
 oUy t). Vernon, 5 East, .01, the rule 
 was thus stated : " Where there is 
 a grant of a particular thing once 
 sufficiently ascertained by some cir- 
 cumstance belonging to it, the addi- 
 tion of an allegation, mistaken or 
 false, resjiecting it, will not frus- 
 trate the grant ; but where a grant 
 is in general terms, there the addi- 
 tion of a particiolar circumstance 
 will operate by way of restriction 
 and modification of such grant. 
 Therefore, where one ha^^ng cus- 
 tomary tenements, compounded and 
 uncompounded, sui-rendered to the 
 use of his will ' all and singular the 
 lands, tenements, etc., whatsoever, in 
 
 the inanor, which he held of the hrrd 
 by copy of court roll, in whose tenure 
 or occupation soever the same were, 
 being of the yearly rent to the hrrd in 
 the whole of 41. 10s. ^id., and com- 
 2)0U7ided for.' Held, that the words 
 ' and compounded' fm',' resti-ained 
 the operation of the surrender to 
 that description of coj^yholds then 
 belonging to the surrenderer ; and 
 that the words * being of the yearly 
 rent, etc., of 41. 10s. S^d.,' which 
 were not refei-able t# any actual 
 amount of his rents, either com- 
 pounded or uncompounded, though 
 much nearer to the whole than to 
 the compounded only, could not 
 qualify or impugn that restriction." 
 See also, to the same effect. Bell v. 
 Sawyer, 32 N. H. 72 ; Tenny v. 
 Beard, 5 id. 58 ; Hibbard v. Hurl- 
 burt, 10 Vt. 173 ; Sargent v. Adams, 
 3 Gray (Mass.), 72 ; Mitchell v.
 
 SEC. 39.] PAROL EVIDENCE, RULES RELATING TO. 
 
 115 
 
 But, if the description of the premises of itself affords 
 ample means of ascertaining or defining the premises in- 
 tended to pass, it is not competent to show by parol that the 
 lease was intended to apply to other premises, even though 
 there are errors or inconsistencies,^ and the actual intention 
 of the parties is in opposition to the strict letter of the 
 lease.^ 
 
 Where the language of a lease is illegible from age or 
 other causes, and the construction is doubtful from antiquity, 
 parol evidence is admissible to show what its provisions are, 
 as well as to aid in its construction in any doubtful matter.* 
 So parol evidence is admissible to explain a latent ambiguity 
 in a deed or lease. It is a rule of construction that in order 
 to arrive at the real intention of the parties, and to make a 
 correct application of the words and language of the contract 
 to the subject-matter thereof, and the objects professed to be 
 described, all the surrounding facts and circumstances may 
 be taken into consideration. ' The law does not deny to the 
 
 Stevens, 1 Aik. (Vt.) 161 ; Putnam 
 V. Smith, 4 Vt. 622. In Freeland v. 
 Burt, 1 T. R. 701, the demise was 
 of certain premises in Westminster 
 "late in the occupation of A.," par- 
 ticularly describing- them, was held 
 to extend only to such part of the 
 premises as A. occupied, and a eel-' 
 lar under yard belonging* to theprem- 
 ises, which was in the possession of 
 another tenant, was held not em- 
 braced in the grant ; and in eject- 
 ment for the premises, it was held 
 that the landlord might show what 
 part of the premises A. occupied, 
 and that the cellar did not pass 
 under the grant. In Jackson v. 
 Ferine, 35 N. J. L. 137, the court 
 laid down the rule, that where the 
 language of the grant admits of but 
 one construction, and the location of 
 the premises intended to be con- 
 veyed is already ascertained by a 
 description in the deed, either by 
 courses and distances or monu- 
 ments, no other exposition derived 
 
 either from the language or acts of 
 the parties is admissible ; but, where 
 the language is equivocal, and the 
 location of the premises is made 
 doubtful, either by the insufficiency 
 of the description or the inconsistency 
 of two or mm'e parts of the descrip- 
 tion, the construction put upon the 
 grant by the parties in locating the 
 premises may be resorted to. See 
 also McLaughlin v. Bishop, 35 id. 
 512 ; Thomson v. Wilcox, 7 Lans. 
 (N. Y.) 376. 
 
 ' Vose V. Bradstreet, 27 Me. 156 ; 
 Norwood V. Byrd, 1 Rich. (S. C.) 
 135; Phillips v. Castley, 40 Ala. 
 486 ; Todd v. Philhamer, 24 N. J. 
 L. 796 ; McLaughlin v. Bishop, 35 
 N. J. L. 512 ; Eggleston v. Brad- 
 ford, 10 Ohio, 312; Campbell v. 
 Johnson, 44 Mo. 247 ; Bratton v. 
 Clawson, 3 Strobh. (S. C.) 135. 
 
 "" Tracy v. Albany Ex. Co., 7 N.. 
 Y. 474. 
 
 ^ Best on Evidence, 198, n. a.
 
 lit; EVIDENCE. JcilAl'. II. 
 
 reiicKT llic miiuc light and information tli;it the writer enjoyed ; 
 he may acqnaint himself with the persons and cireumstanees 
 that are the subjects of the allusions and statements in the 
 written agreement, and is entitled to place himself in the 
 siuue situation ius the party who made the contract, to view 
 the circumstances as he viewed them, and so judge of tlie 
 meaning of the words and of the correct ai)plication of the 
 hmjrnajje to the thiiiiis described."' A lease had been made 
 by the plaintiff to the defendant, of part of a messuage, 
 together with a piece of ground thereunto adjoining. This 
 piece of ground was used as a yard, and beneath the surface 
 thereof was a cellar, occupied by a third party mider a lease 
 previously granted to him by the plaiutitf. The occu[)ant 
 of the cellar continued to reside in it, and to pay rent to the 
 plaintiff for three or four years after the latter had demised 
 the yard to the defendant, but his lease having expired, and 
 he having quitted the cellar, the defendant took possession 
 of it, contending that the cellar had passed to him by the 
 demise of the yard, upon the maxim of the common law, 
 ^'■Cujiis ent solum, ejus est usque ad codum et ad inferos, ^^ and 
 that the plaintiff was estopped from introducing parol evi- 
 dence to control or qualify the operation of the lease ; but 
 the court held that parol evidence of the surrounding cir- 
 cumstances might pro[)erly be brought in aid of the construc- 
 tion and interpretation of the lease. "The only question," 
 ol)serves Ashuiist, J., " is whether the court are absolutely 
 bound by the terms of this lease to put the construction upon 
 it for which the defendant contends. Prima facie, indeed, 
 the pioperty in the cellar would pass by the demise, but 
 that might l)e regulated and ex[)lained by circumstances, 
 and it seems to me that the construction of all deeds must be 
 made with reference to their subject-matter, and it may be 
 necessary to put a different construction upon leases made in 
 po[)ulous cities from that on those made in the country ; we 
 know that in London different persons have several freeholds 
 over the same spot, and that difterent parts of the same 
 house are let out to different people."^ 
 
 • Shore v. Wilson, 9 Q. & Fin. ' Freeland v. Burt, 1 T. R. 703 ; 
 5-5, yf'fi. Pi-ess V. Parker, 10 Moore, 158 ;
 
 SEC. 39.] PAROL EVIDENCE, RULES RELATING TO. 117 
 
 From the admission of such evidence, and from bringing 
 the words of the written instrument into contact with sur- 
 roundinof circumstances, a doul^t sometimes arises as to the 
 correct application of the language and words used to the 
 subject-matter of the contract and the objects professed to be 
 described ; this is called a latent ambiguity^ because it is not 
 apparent upon the face of the contract, but arises from the 
 application of the words to the objects to which they refer. 
 "As this difficulty or ambiguity is introduced solely by the 
 admission of extrinsic evidence of surrounding circumstances, 
 it may be rebutted and removed by the production of fur- 
 ther evidence of the identity of the objects described, in ac- 
 cordance with the ancient maxim, ' Ambiguitas verhorum 
 latens, verificatione sujjpletur ; nam quod ex facto oritur 
 ambiguwn verificatione facti iollitar.^ " ^ This may be illus- 
 trated and exemplitied by a case analogous to the one men- 
 tioned by Pothier. " You rent of me an apartment in a 
 house, the remainder of which is occupied by myself. I 
 make you a new lease in these terms : ' I agree to let, and 
 A. B. agrees to occupy my house in Frederick street, for the 
 term of two years from the date hereof, at the annual rent 
 of 20/.' Any one on reading this agreement would im- 
 agine that the whole house was intended to be demised, but 
 when evidence of exti'insic circumstances is admitted, for 
 the purpose of applying the language of the contract to the 
 subject-matter thereof, a doubt at once arises, whether it was 
 intended that you should have the whole house or the mere 
 apartment which you had previously occupied ; and this 
 doubt, which is suggested purely by extrinsic evidence of 
 the relative situations and circumstances of the parties at 
 the time of the making of the contract, may be removed by 
 parol evidence of other circumstances calculated to explain 
 the sense in which the words were used, and to give them a 
 correct application." The written instrument may also, on 
 the face of it, be perfectly intelligible, and free from all 
 doubt and obscurity, but from some of the circumstances 
 
 Wigram, 39, 58 (2d ed.) ; 20 Law J. ' Tindal, C. J., Millert). Travers, 
 <D. B. 67. 1 M. & Sc. 345 ; Bac. Max. 23.
 
 118 
 
 EVIDENCE. 
 
 [CHAr. II. 
 
 admitted in proof, an ambiguity arises, as to which of two 
 or more things, or which of two or more persons, each 
 answering the words of the writing, the parties intended to 
 designate. Tliere ma}', for example, be two estates, or two 
 persons of the same name and description, and the words 
 may equally apply to either. This doubt or difficulty, 
 which has been created by parol evidence, may be removed 
 by further evidence of a like character, calculated to ex- 
 plain which of the estates or persons is embraced by the 
 description in the written instrument.^ But the evidence, 
 
 • Goi-d V. Needs, 2 M. & W. 140 ; 
 Hiscockst). Hiscocks, 5 M. & W. 368 ; 
 Wigrarn, ji. 86, 88. See Hammond 
 V. Ridffely, 5 H. & J. (Md.) 255; 
 Lowell V. Pavkhurst, 4 Wend. (N. 
 Y.) 309. In Crawford v. Morris, 5 
 Gratt. (Va.) 90, where there was a 
 written agreement to renew a lease, 
 it was held that parol evidence was 
 admissible to show thai the cellar 
 of an adjoining tenement had been 
 occnpied with the premises to xchich 
 the lease ajjplied, and xcas necessary 
 for the prosecution of the tenants 
 business, for the purpose of .showing 
 that it was included in the lease to 
 he renewed. In Midlothian, &c., Co. 
 V Finney, 18 Gratt. (Va.) 304, the 
 lessoi", about six months after giving 
 a lease of certain coal mines for a 
 term, indorsed upon the lease a 
 lease of adjoining coal lands for the 
 residue of the term, declaring it to 
 be a part of the original lease, and 
 after such indorsement, and before 
 the term exjiii-ed, he agreed to re- 
 new the lease. Parol evidence wjis 
 held admissible to show whether or 
 not the lands of the indorsed lease 
 were intended to be embraced in the 
 renewal. In "Wing v. Gray, 36 Vt. 
 261, there was a clause in the lease 
 as follows: The lessee "is to have 
 all the personal property on the 
 farm," and it was held that parol 
 evidence was admissible to show 
 
 whether it was meant that he should 
 have the use of the pi-operty, or that 
 it should be his absolutely. In a 
 New York case the defendant C, 
 having a lease of a store, underlet to 
 A. the whole of the first floor except- 
 ing a portion thereof which was then 
 partitioned off, and which consisted 
 of the stairway, with a hatchway 
 in front, leading to the upper stories 
 of the building. There were two 
 doors in the fi-ont, the one opening 
 opposite the stairway and the other 
 into the lower room, into which 
 there was also access through a door 
 in the partition. The undertenant 
 A., with the consent of his lessor, 
 removed the partition, agi-eeing to 
 restore it when requested so to do. 
 Afterwards, A. sold out to the plain- 
 tiff S., with whom the defendant 
 agi'eed in writing that " the present 
 lessee and occupant of the first floor 
 of the house may continue to use 
 and occupy the said premises as 
 long as I hold the lease thei-eof." 
 In an action brought by S. to re- 
 cover damages against C. for putting 
 up the partition, it was held that 
 pai'ol evidence, showing that the 
 plaintiff took the agi-eement from 
 the defendant with the knowledge 
 of what were the i-ights and obliga- 
 tions of A., the first undertenant in 
 the premises, was competent. Stef- 
 fens V. Collins, 6 Bosw. (N. Y.) 223.
 
 SEC. 39.] PAROL EVIDENCE, RULES RELATING TO. 
 
 119 
 
 when introduced, must have the eftect of rendering the 
 words and hinsjuao'e of the document certain and manifest, 
 
 Where a party granted a manor by 
 a particular name, and had two 
 manors of that name, parol evidence 
 was admitted to show which of them 
 he meant ; and where there was a 
 demise of premises in Westminster, 
 late in the occupation of A., particu- 
 larly describing them, part of which 
 was a yard, parol evidence was re- 
 ceived to show that a cellar situated 
 under that yard, but which was 
 then in the occupation of B., another 
 tenant of the lessor, was not intended 
 to pass. Freeland v. Burt, 1 T. R 
 701 ; Paddock v. Fradley, 1 C. & J. 
 90. Evidence of usage was received 
 to show that a room which had not 
 been occupied with a certain mes- 
 suage did not pass luider a demise 
 of that messuage, together with all 
 the rooms, chambers and appurte- 
 nances thereunto belonging. Kers- 
 lake V. White, 2 Stark. 508. Where 
 a lease grants a right of way, evi- 
 dence may be received of the state 
 of the jjremises at the time of grant- 
 ing the lease, and then the judge 
 will put a construction on the lease 
 as to the line along which the way 
 gi-anted runs ; but if it is uncertain 
 on the words which of two ways is 
 intended, pai-ol evidence may be 
 given to show which the grantor 
 meant Osborne v. Wise, 7 C. & P. 
 761 . Where an expression used in a 
 wi'itten instrument has a technical 
 meaning, parol evidence is admissi- 
 ble to show that it has been used in 
 that sense, and not its ordinary 
 meaning in common parlance, al- 
 though that may be perfectly clear 
 and unambiguous in itself; there- 
 fore, where a lessee of a coal mine 
 covenanted to get the whole of the 
 mines "not deeper than or below 
 the level of the bottom of the mine " 
 at a particular point, it was held, 
 
 that parol evidence of the under- 
 standing amongst miners was ad- 
 missible to show that the word 
 " level " had a particular technical 
 meaning different from its ordinary 
 signitication of " horizontal line." 
 It might be questionable whether a 
 previous agreement between the 
 pai'ties for a lease of the same mine, 
 and for which the lease in question, 
 was substituted, was also admissible 
 in evidence for the same purpose. 
 Clayton V. Gregson, 5 Ad. & El. 302 ; 
 Shore v. Wilson, 9 CI. & F. 365. 
 Again, where in a lease of a rabbit 
 warren, etc., the lessee covenanted 
 that on the expiration of the term 
 he would leave on the warren 10,000 
 rabbits, the lessor paying for them 
 £60 per thousand, it was held, that 
 parol evidence was admissible to 
 show that, by the custom of the 
 country where the lease was made, 
 the word " thousand," as it applied 
 to rabbits, denoted twelve hundred. 
 Smith V. Wilson, 3 B. & Ad. 728. 
 Whei-e the lessee of a coal mine 
 covenanted to pay a certain share 
 of all such sums of money as the 
 coals should sell for at the pit's 
 mouth, evidence of the lessee's hav- 
 ing accounted with the lessor, and 
 paid him the share of the money 
 produced by the sale of coals else- 
 where, was not considered admissi- 
 ble to explain the intention of the 
 parties. Clifton v. Waimsley, 5 T. 
 R. 564 ; Gerrard v. Clifton, 7 T. R. 
 676. Where a lessee made an agi-ee- 
 ment for a lease, and the under-les- 
 see contracted to erect a shop-front 
 to the house ; in ejectment for for- 
 feiture for not erecting the shop- 
 front, it was held, that the original 
 lease by which a penalty was im- 
 posed, if the lessee allowed a trade 
 to be carried on upon the premises.
 
 120 
 
 EVIDENCE. 
 
 [chap. n. 
 
 aiitl iiiiist leave no doubt as to the correct application of 
 tlKin, and the precise object to which they were intended to 
 
 vas not admissible in evi<lonce for 
 tlie (let't'udaut to explain the mean- 
 ing- of the words " shop-front " in 
 the ag-reement. Nash v. Birch, 1 M. 
 & W 402. Where A., being tenant 
 to B. under a lease containing- cov- 
 enants, by whi(-,h the former was 
 bounil to fetch seventy-tive bushels 
 of coals yearly, and deliver thorn at 
 the mansion-house of the latter, and 
 also to supply him with as much 
 good wheat as he should want in his 
 family at 5s. per bushel, it was 
 agreed between them that the lease 
 should be surrendered up, and a new 
 one granted, omitting the above 
 covenants ; and a new lease was 
 accordingly executed, and at the 
 same time an agreement entered 
 into whereby A. agi-eed with B. that 
 he would fetch and bring to the 
 dwelling-house of B., his heirs and 
 assigns, seventy-five bushels of coals 
 yearly, for twelve years (the term 
 of the new lease), and yearly sup- 
 ply B., his heii-s and assigns, \vith 
 as much good wheat as he should 
 want in his family at 5.<?. per bushel; 
 it was held, upon B.'s having parted 
 with his i-eversion in the farm, and 
 also quitted the mansion-house in 
 which he resided at the time when 
 the agi-eement wsis made, that the 
 agreement, b(;ing entire, must re- 
 ceive one uniform construction ; and 
 as it was clearly local in respect of 
 the deliveiy of coals, it could not 
 be deemed pei-sonal with respect to 
 the wheat ; and that no parol evi- 
 dence could be admitted to explain 
 the agreement, there being no latent 
 ambigiiity. Coker v. Guy, 2 B. & 
 P. .'itiS. If there be any ambiguity 
 or contradiction in expressing the 
 time of the commencement of a lease, 
 the lea^so shall be construed benefi- 
 cially for the lessee, on the principle 
 
 that every man's grant shall be 
 taken most strongly against himself. 
 Anon., Dyer, 261 b, pi. 28; Lilleyt). 
 Whitney, Dyer, 272 a; Seamen's 
 Case, Godb. IGG; Davies?) Williams, 
 1 H. Blac. 2.') ; Shop Touch. 88, s. 6. 
 Where a man gi-anted an estate for 
 life, without saying whether it was 
 foi- his own life or for that of the 
 grantee, parol evidence was received 
 to show what interest he had in the 
 estate ; for if he was tenant in fee, 
 it was considei-ed that .the grantee 
 should take an estate for his own 
 life ; but that if the grantor himself 
 was a tenant for life only, the gran- 
 tee would take an estate for the 
 graiitor's life only. Smith v. Earl 
 of Jersey, 2 Brod. & B. rm ; 3 Moo. 
 3H9 ; 7 Price, 281 ; 3 Bligh, 290. The 
 express tei-ms of a lease cannot be 
 controlled by the custom of the 
 country ; yet If the lease be entirely 
 silent as to the time of quitting, -evi- 
 dence of the custom of the country 
 may be given to fix the time. Webb 
 V. Plummer, 2 B. & Aid. 746. Al- 
 though' no right to an away-going 
 crop is reserved in a lease, if there 
 are no covenants which, either in 
 express terms or by imjilication of 
 law, exclude such i-ight, the lessee 
 may produce parol evidence to show 
 that he is entitled to such away-go- 
 ing crop by the custom of the coun- 
 try. Caldecot v. Smythies, 7 C. & 
 P. 808 ; Wigglosworth v. Dallison, 
 1 Doug. 201 ; 1 Smith L. C. 453, 460 
 (4th ed.) ; Wilkins v. Wood, 17 L. 
 J. Q. B. 319 ; Hutton v. Warren, 1 
 M. & W. 466 ; Fa\nell v. Gaskoin, 7 
 Exch 273 ; Muncey v. Dennis, 1 H. 
 & M. 216 ; Holding v. Pigott, 7 Bing. 
 465. So evidence of custoni foi- an 
 away-going tenant to pro\'ide work 
 and lalior, tillage and sowing, and 
 all materials for the same in his
 
 SEC. 39.] PAROL EVIDENCE, RULES RELATING TO. 121 
 
 refer ; for parol evidence is inadmissible to ascertain and 
 establish the intention as an independent fact. The j udgment 
 of the court in expounding a deed must be simply declara- 
 tory of what is in the deed ; it has to ascertain, not what the 
 party intended, as contradistinguished from what the words 
 express, but what is the meaning of the words he has used.' 
 And when the words of any written instrument are free from 
 ambiguity in themselves, and where external circumstances 
 do not create any doubt or difficulty as to the proper appli- 
 cation of those words to claimants under the instrument, or 
 the subject-matter to which the instrument relates, the instru- 
 ment is always to be construed according to the strict, plain 
 and common meaning of the words themselves ; and evidence 
 dehors for the purpose of explaining the instrument accord- 
 ing to the surmised intention of the parties is inadmissible. But 
 to explain a patent ambiguity, parol evidence is never admis- 
 sible, whatever doubt may exist as to the intention of the 
 parties. Thus, if a blank is left in a lease or deed, miless it 
 can be filled from inferences drawn from the instrument 
 itself, it must remain blank, and cannot be cured by extrinsic 
 evidence.2 
 
 It may be shown that the lease was made for the benefit 
 of a person other than the lessor, as, where a lease was made 
 by an adininistrator in his own name, that it was, in fact, 
 made for the benefit of the estate.^ So, where no time when 
 the lease shall commence is named therein, it is competent 
 to show what time was fixed upon by parol ;* or that the 
 lease was in fact executed upon a different day from that 
 named in the lease ;^ or that it has been surrendered f or 
 when the lessee actually took possession.' So it is compe- 
 
 away-g-oing year, the landlord mak- ^ Baylis v. Church, 2 Atk. 239 ; 
 
 iug him a reasonable compensation, Strode v. Russell, 2 Vern. 624. 
 has been received, although there * Russell v. Erwin, 41 Ala. 292. 
 was an express written agreement * Leggett v. Harding, 10 Ind. 414. 
 between the parties, but which was ^ Hall v. Huffman, 32 Mo. 519 ; 
 
 not inconsistent with such custom. Trustees v. Robinson, Wright (Ohio), 
 
 Senior v. Armytage, Bart. Holt, 197; 436. 
 
 Button V. Warren, 1 M. & W. 466, « Mairs v. Sparks, 5 N. J. L. 513. 
 476. ' Den v. Hamilton, 12 N. J. L. 
 
 ' 13 Law J. N. S. (Exch.) 365. 109.
 
 122 EVIDENCE. [chap. II. 
 
 tout to .show, by parol, tliat the hmdlortl knew the purpose 
 for which the lessee intended to occupy the premises, unless 
 the character of the occupancy is expressly restricted in the 
 leiisc, or that the lessee knew their condition, or, in the case 
 of a sub-tenant, that he knew the conditions of the lease 
 under which the original tenant holds.^ Where in a lease it 
 is stipulated that the lessee " shall have all the personal 
 property,"' it is proper to show, by parol, whether he avjuj 
 to have it absolutely, or only the use of it.^ 
 
 Customary rights and incidents universally attaching to 
 the .su])ject-niatter of the contract in the place and neighbor- 
 hood where the contract was made, are impliedly annexed to 
 the written language and terms of the contract, unless the 
 custom is particularly and expressly excluded. Parol evi- 
 dence of custom and usage, consequently, is always admissi- 
 ble to enable us to arrive at the real meaning of the parties 
 who are naturally presumed to have contracted in conform- 
 ity with the known and estal)lished usage. Thus, the cus- 
 tom of the country in regard to the claims of an outgoing 
 tenant of a farm will prevail, although there is a lease under 
 seal regulating the terms of the holding, but not containing 
 stipulations as to the terms of quitting, which can exclude 
 the custom.^ The customary right of a tenant to the away- 
 
 ' In Steffins v. Collins, 6 Bos. (N. fendant agreed, in writing that " the 
 Y. Supr. Ct.) 223, the defendant, C, present lessee and occupant of the 
 having a lease of a storo, underlet first floor of the house may continue 
 to A. the whole of the first floor ex- to use and occupy the said prem- 
 cepting a portion thereof which was ises as long as I hold the lease there- 
 then partitioned off", and which con- of." In an ac^tion Lrought by S. to 
 sisted of the stairway, with a hatch- recover damages against C. foi- jnit- 
 way in front, leading to the upper ting up the partition, it was held, 
 stories of the building. There were that parol evidence, showing that 
 two doors in the front, the one open- the plaintiff took the agi-eement* 
 ing opposite the stairway and the from the defendant with the knowl- 
 other into the lower room, into edge of what were the rights and 
 which there was also access through obligations of A., the first under- 
 a door in the partition. The under- tenant in the premises, was compe- 
 tenant, A., with the consent of his tent. 
 
 lessor, removed the partition, agree- " Knapp v. Marlboro, 29 Vt. 282. 
 
 ing to restore it when requested so ' Hutton v. Warren, 1 M. & W. 
 
 to do. Afterwards A. sold out to 475, 476 ; Domat, liv. 1, tit. 1. 
 the plaintiff", S., with whom the de- 
 
 i
 
 SEC. 39.] PAROL EVIDENCE, RULES RELATING TO. 123 
 
 going crop, to conipeiisatioii for work and labor, seed, and 
 materials employed in manuring, tilling, and sowing the 
 land, also the customary right of a landlord or reversioner 
 to a heriot on the death of a tenant for life, and all customs 
 and usages respecting the cultivation of the soil and the mode 
 of husbandry, will impliedly prevail, if the lease is silent 
 respecting them, and parol or oral evidence is, consequently, 
 admissible to superadd the usage and customary right to the 
 contract between the parties, such right and usage being 
 recognized by law as incident to the subject-matter of the 
 contract, and consequential upon the taking of the lands. ^ 
 But iKirol evidence of custom and usage is not admitted to 
 contradict or vary express stipulations and provisions restrict- 
 ing or enlarging the exercise and enjoyment of the customary 
 right. Omissions may be supplied by the introduction of 
 the custom, but the custom cannot prevail over and nullify 
 the express provisions and stipulations of the contract.^ If 
 a lease, for example, contains an express provision as to the 
 disposal of the away-going crop, or specifies and regulates 
 the particular allowances that are to be made by an incom- 
 ing to an outgoing tenant, the custom in respect thereof is 
 excluded.^ 
 
 "In all contracts," observes Parke, B., "as to the sub- 
 ject-matter of which known usages prevail, parties are 
 found to proceed with the tacit assumption of these usages ; 
 they commonly reduce into writing the special particulars 
 of their agreement, but omit to specify these known usages 
 which are included, however, as of course, by mutual under- 
 standing ; evidence, therefore, of such incidents is receiv- 
 able. The contract, in truth, is partly express and in writ- 
 ing, partly implied or understood and unwritten. But the 
 evidence received must not be of a particular which is repug- 
 nant to, or inconsistent with, the written contract."* "The 
 
 ' Wigglesworth i). Dallison, 1 ^ Roxburghe y. Robertson, 2 Bligh, 
 
 Doug. 201 ; Wilkins v. Wood, 17 156 ; Webb v. Plnmmer, 2 B. & Aid. 
 
 Law J. Q. B. 319. 746 ; Roberts v. Barker, 1 C. & M. 
 
 * Clarke v. Roystone, 13 M. & W. 808. 
 
 752; 14 Law J. Exch. 143; Taylor * Brown u Byrne, 3 Ell. &B1. 715. 
 on Ev. p. 771 ; Blackett v. R. Ex. 
 Ass. Co., 2 C. & J. 249.
 
 121: EVIDENCE. [CIIAP. 11. 
 
 iisiii^o," oloerves Wilde, C. J., " is admissible for the pur- 
 i)()sc of iimioxing incidents to the contract in matters upon 
 \vhicli the contract is silent, but not to vary or contradict, 
 either expressly or by ini})lication, the express terms of the 
 written instrument." Therefore, where a written memoran- 
 dum of a contract for the sale of certain specified bales of 
 wool at an ascertained price, stated that they were "to be 
 p:iid for l)y cash in one month," it "vvas held that the contract 
 imported a sale upon a month's credit ; that the vendor was 
 entitled to delivery of the goods without payment of the 
 price, and that evidence of a usage in the wool trade, that 
 under contracts framed in similar terms, the vendors were 
 not bound to deliver without receiving payment of the price, 
 was inadmissible to alter the plain import of the written 
 instrument. " We think," observes Wilde, C. J., " that the 
 admission of the evidence w^ould be to allow a right to be 
 set up inconsistent Avith and contradictory to the terms of 
 the contract, and to annex an incident to the subject-matter, 
 which if not expressly is clearly impliedly excluded by the 
 contract.^ 
 
 Sec. 40. Pairol Evidence of Usage, admissible when. 
 
 Parol evidence applying an instrument to the subject- 
 matter, explaining expressions used in a peculiar sense 
 and showing the circumstances existing when the con- 
 tract was made, to give effect to the language used in 
 a contract by the parties, as they understood it, is admis- 
 sible and does not impugn the general rule for the reason 
 that it does not add to or subtract from the contract, but 
 rather enables the court to effectuate it according to the true 
 intention of the parties.^ It is upon this ground that evi- 
 <lcnce of a usage or custom existing in a jiarticular trade or 
 business or in a particular locality is permitted to be shown. ^ 
 It is now well settled that a greneral usajre or one which is 
 knovm to the parties and which does not conflict with the 
 
 ' Spartalit). Benecke,10C. B.221. = The Schooner Reeside, 2 Sum. 
 
 ' Boonnan v. Jackson, 12 Wend. (U. S.) 569 ; Heald v. Cooper, 8 Me. 
 
 (N. Y.) 573; Robertson v. French, 83 ; Wait v. Fairbanks, Brayt. (Vt.) 
 
 4 East, 135. 7 ; William v. Gilman, 3 Me. 276.
 
 \ 
 
 SEC. 40.] PAROL EVIDENCE, RULES RELATING TO. 125 
 
 express terms of a contract, forms a part thereof as much 
 as thouixh written therein.' 
 
 The maxim "//i contraciibus taciie veniunt ea quae sunt 
 moris et consuetudinis,'' has full appUcatiou iu such cases. 
 " Experience and observation," says Stores, J.,^ " prove 
 that the engagements of individuals are iu fact entered into 
 with reference to the customs and usages which prevail in 
 the community where they are made ; they therefore tacitly 
 agree to conform to them, and so far from doing injustice by 
 regarding such customs and usages, ii zs the only mode by 
 which justice can he attained. The presumption is, indeed, 
 that those who enter into contracts, intend to be e-overned 
 by the general principles of law. It is, however, competent 
 for them to renounce *thcse principles when public policy 
 does not forbid, and to adopt another rule of action, and 
 the prevalence of a particular local usage on the subject, 
 variant from those general rules, in the absence of evidence 
 to resist it, affords a rational ground of inference that they 
 intended to do so^ The injustice of a contrary doctrine may 
 be illustrated thus : Suppose the statute provides, as is the 
 case in many of the States, that a " barrel " shall consist of 
 thirty-two gallons, but by the uniform usage of a certain trade 
 a barrel consists of fortTj-four gallons, as in the petroleum 
 trade, and that number of gallons in that trade has uniformlj^ 
 been given for a barrel, have not parties contracting for a 
 barrel of petroleum a right to understand that they are to 
 have forty-four gallons, precisely the same as though it hud 
 been written out in the contract, and notwithstanding the 
 statute fixes the general standard at a less number ? The 
 
 ' Sipperley v. Steward, 50 Barb. Mann v. Burch, 25 111. 35 ; Palmer 
 
 (N. Y.) 62 ; Wheeler v. Newbold, v. Kane, 5 Wis. 265 ; Ludwick v. 
 
 5 Duer (N. Y.), 29; Bank of Co- Ohio Ins. Co., 5 Ohio, 436 ; Haven -j). 
 
 lumbia v. Fitzhugh, 1 H. & G. (Md.) Wentworth, 2 N. H. 93 ; Stevens v. 
 
 239 ; Duguid v. Edwards, 50 Barb. Reeves, 9 Pick. (Mass.) 198 ; Ingle- 
 
 (N. Y.) 28S; United States v. Ar- bright v. Hammond, 19 Ohio, 337; 
 
 rand, 6 Pet. (U. S.) 715 ; Martin w Noble v. Kenoway, 1 Doug. 510; 
 
 Maynard, 16 N. H. 165 ; Sewall v: Parr v. Anderson, 6 East, 202 ; Hal- 
 
 Gibbs. 1 Hall (N. Y.), 612 ; Sampson sey v. Brown, 3 Day (Conn.), 346. 
 '0. Gazzam, 6 Port. (Ala.) 123 ; Stultz ^ In Kilgore v. Bulkley, 14 Conn, 
 
 u Dickey, 5 Binn. (Penn.) 287; 890.
 
 12() EVIDENCE. [CHAr. U. 
 
 <uurl.-> jusll}' aii-swcr in the aiiiinuilivu,' iiiid the same princi- 
 ple lici al llic rouiKlatioii of all the cases admitting this 
 .species of evidence. Its ol)jcct and purpose is, not to permit 
 the contract, which has been reduced to writing, to be varied 
 in anv respect, but rather to ascertiiiu what tlie parties in- 
 tended by their writing, and carry their intention into efleet. 
 Where a contract is entered into, tlie parties are presumed 
 to deal with reference to the known general or uniform cus- 
 tom or u<;ii:e governing the business or subject-matter to 
 which the contract relates, unless they exclude such pre- 
 sumption by the terms of the agreement itself ; but, to have 
 commercial usage take the place of general law, it must have 
 been so unifonnly acquiesced in for such a length of time 
 that the jury will feel themselves constrained to find that it 
 entered into the minds of the parties and formed a part of 
 the contract.^ The contract expresses what is particular to 
 the bargain, and the usage supplies the rest.^ 
 
 Sec. 41. Qualities of a binding Usage. 
 
 It follows, therefore, that, in order to amount to a binding 
 usage of a trade or business, so to speak, it must be shown 
 to be so Avell established, so general, so uniform and noto- 
 rious that it may reasonably be presumed that the parties 
 knew of and contracted in reference to it. Mercantile usage 
 must be proved hij the malti^licatioii or aggregation of a 
 
 ' Miller v. Stevens, 100 Mass. 518. 263 ; Wilcox v. Phillips, 1 Wall., Jr. 
 
 See Evans V. Myers, lis Pena. St. 114; (U. S. C. C.) 47; Leigh v. Hewitt. 
 
 Green v. Moffat, 22 Mo. 529, where 4 East, 154 ; Dalby v. Hirst, 1 B. & 
 
 it was held that a usage to regard B. 224 ; Grissell v. Bristowe, L. R. 
 
 2,200 pounds as a ton instead of 46, P. 36 ; Greanes v. liegg, 2 H. 
 
 2,000 pounds, as tixed by statute, is & N. 210 ; Duncan v. Hell, L. R., 6 
 
 not admis.'sible. But an examination Exch. 25; Bayliffe v. Butterworth, 
 
 of those cases will show that the 1 Exch. 429 ; Hodkinson v. Kelly, 
 
 real ground for rejecting such evi- L. R., 6 Exch. 25 ; Taylor v. Stray, 
 
 dence was that it did not establish 2 C. B., N. S. 175 ; Bayly r.Wilkins, 
 
 a u.sage which would warrant a 7 C. B. 880 ; Buckle v. Knapp, 36 
 
 presumption that the parties con- L. J. Exch. 49 ; Pollock v. Staples, 
 
 tracted in reference to it. .12 Q. B. 765. 
 
 ' Oldershaww. Knoles, 4 HI. App. ' Myer v. Dresser, 16 C. B., N. S. 
 
 6.3; Wheeler v Newbald, 5 Duer 646; Dalton i). Daniels, 2 Hilt. (N. 
 
 (N. Y.), 29 ; Juggomohun Ghore v. Y. C. P.) 463. 
 Munickchund, 7 Moore Ind. App.
 
 SEC. 41.j PAROL EVIDENCE, RULES RELATING TO. 127 
 
 great number of instances showing a certain course of busi- 
 ness, and a general, established understanding respecting it.^ 
 And it must be shown that it is established and not merely 
 casual, uniform and not varying, general and not personal, 
 0/* that it was known to the parties when the contract was 
 entered into?' Where a custom or usage was set up that a 
 class of mercantile houses in the same line of trade in New 
 York, generally known as "six months' houses," by their 
 general and uniform course of business, on a bill of goods 
 containing a memorandum, " Six per cent oif for cash," 
 would understand a sale on six months' credit, without any 
 express agreement, it was held that in order to discharge 
 the office of exposition, and be admissible in evidence, it 
 must be found to be the general usage of the whole of that 
 class of houses in the city of New York, and so well estab- 
 lished and uniformly acquiesced in, and for such a length of 
 time, that the jury might fairly infer that it was known to 
 the contracting parties, and made by implication a part of 
 their contract. If such usage is not proved, it should be 
 laid out of the case ; and an offer of evidence of anvthinof 
 less should be excluded.^ But in order to establish it neither 
 antiquity nor that general notoriety essential to establish a 
 custom need be shown. It is sufficient if it is shown to be 
 so well known and acquiesced in that it may be reasonably 
 presumed to have been an ingredient imported into the con- 
 tract by the parties.* And this is the case only when the 
 
 ' Foye V. Leighton, 22 N. H. 71 ; Stevens v. Reeves, 9 Pick. (Mass.) 
 
 Knowles v. Dow, 22 id. 387 ; Bui-r v. 198 ; Watt v. Hock, 25 Penn. St. 
 
 Sickles, 17 Ark. 428 ; Walker v. 411 ; Hursh v. North, 40 id. 241 ; 
 
 Barrow, 6 Minn. 508 ; Saint v. Sampson v. Gazzam, 6 Port. (Ala.) 
 
 Smith, 1 Coldw. (Tenn.) 51 ; Chesa- 123 ; Haven v. Wentworth, 2 N. H. 
 
 peake Bank v. Swain, 29 Md. 483 ; 93 ; Gallup v, Lederer, 1 Hun (N. 
 
 Smith V. Floyd, 18 Barb. (N. Y.) Y.), 282 ; Mills v. Hallock, 2 Edw. 
 
 392 ; Mackenzie v. Dimlop, 3 Macq. Ch. (N. Y.) 652. 
 (Sc.) H. L. Cas. 22. ' Linsley v. Lovely, 26 Vt. 123. 
 
 " Wheeler v, Newbould, 5 Duer * Shackleford v. New Orleans R. 
 
 (N. Y.), 29 ; Sipperly v. Steward, 50 R. Co., 37 Miss. 202 ; Harper v. 
 
 Barb. (N. Y.) 62 ; Martin v. May- Pound, 10 Ind. 32; Buck v. Grim- 
 
 nard, 16 N. H. 165 ; Duguid v. Ed- shaw, 1 Edw. Ch. (N. Y.) 147 ; 
 
 wards, 50 Barb. (N. Y.) 288 ; Wood Chastain v. Bowman, 1 Hill (S. C), 
 
 v. Hicock, 2 Wend. (N. Y.) 501 ; Ken- 276 ; Collings v. Hope, 3 Wash. (Va.) 
 
 dall V. Russell, 5 Dana (Ky.), 501; 150; Juggomohun Ghore i). Manick-
 
 128 EVIDENCE. fCHAP. 11. 
 
 usiif^c is certain, re;isonable and universally acquiesced in, so 
 tliat (.very one engaged in the trade knows, or might have 
 known of it, if he had taken the trouble to inquire.' If it 
 is sought to establish a usage of a trade to control the mean- 
 in<'^ of words, it must be shown that the words are used in 
 that trade and are understood in a defined sense, and a mere 
 iial)it of atHxing a special meaning to words when used in 
 one class of contracts does not amount to such a usage as 
 will justify the presumption that they were used in that 
 sense in the contract in question. The proof must go fur- 
 ther, and show facts that lead to a conviction that they were 
 used in that case in such sense.^ 
 
 As previously stated, the usage must be proved by the 
 nuiltiplication or aggregation of a great number of particu- 
 hu- instances ; but these instances miist not be miscellaneous in 
 character, but must have a principle of unity tmnning through 
 their variety, and that unity must show a certain course of 
 business, and an established understanding respecting it. 
 A usage of trade is a matter of fact, and must be proved like 
 any other fact, and cannot be established by the mere opinion 
 of witnesses. It may be proved by witnesses testifying to 
 its existence and uniformity from their knowledge of it 
 obtained by observation of what is practiced by themselves 
 and others m the trade to which it relates, but the opinions 
 of witnesses, or their conclusions or inferences as to its effect, 
 either upon the contract or the legal title or rights of parties, 
 are not competent to show the force of such usage or its 
 character.^ As a general rule, one witness is not sufficient 
 
 chund, 7 Moore Ind. App. 263; v. Hicock, 2 Wend. (N. Y.) 501. 
 
 Smith V. Gibbs, 44 N. H. 335 ; Rapp But if the witness discloses such. 
 
 t.'. Palmer, 3 Watts (Penn.), 178; familiarity with the trade as to sat- 
 
 Lewis V. Thatcher, 15 Mass. 433. isfy the jury, the evidence may be 
 
 ' Plain V. Allcock, 4 F. & F. 1074. sufficient. Robinson v. United States, 
 
 » Abbott V. Bates, 43 L. J. C. P. 13 Wall. (U. S.) 366 ; Parti-idge v. 
 
 150 ; Eaton v. Smith, 20 Pick. (Mass.) Forsyth, 29 Ala. 200 ; Vail v. Rice, 
 
 150; Steward v. Scudder, 29 N. Y. 5 N. Y. 155. Nor is the custom of 
 
 L. 96. a particular house of itself sufficient 
 
 * The testimony of a sing-le ^vit- proof of a g-eneral usage. Weber t>. 
 
 TiPsp is not generally sufficient to Kingsland, 8 Bos. (N. Y. ) 415. In 
 
 establish a usage of trade of which Smith v. Floyd, 18 Barb. (N.Y.) 523, 
 
 all are bound to take notice. Wood it was held that the evidence to es-
 
 SEC. 41.] PAROL EVIDENCE, RULES RELATING TO. 129 
 
 to establish a general usage ;' but the question as to whether 
 the evidence of one witness is sufficient or not, must be deter- 
 mined from the witness's means of information and acquaint- 
 ance with the business.^ While, as previously stated, usage 
 cannot be estal)lished by the mere opinions of witnesses, yet, 
 if the witness has derived all his knowledge of the usao-e 
 from his own business, and it is shown to be sufficiently 
 extensive and long continued to warrant the presumption 
 that his knowledge in that respect is general, he may state 
 his belief as to what such custom or usage is.^ Proof that 
 in one instance the use by a son of his father's name, upon 
 negotiable paper discounted at a bank, was known and 
 acquiesced in by the father, does not authorize the introduc- 
 tion in evidence of subsequent similar acts, for the purpose 
 of showing an implied authority in the son to sign his father's 
 name, without proof that these also were known and acqui- 
 esced in by him.^ Evidence of a custom of manutacturers 
 of iron castings to warrant the quality of the articles made 
 by them, without an express contract to that effectj is admis- 
 sible in an action founded on such supposed warranty. Evi- 
 dence that such was the custom at three difterent establish- 
 ments, without proof that a contrary usage obtained at 
 
 tablish a customary rig-ht should not 10 Ala. 284; Robinson v. United 
 
 be less than that required to estab- States, 13 Wall. (U. S.) 366 ; Has- 
 
 lish a prescriptive right. In Jewell dins v. Warren, 115 Mass. 514 ; 
 
 V. Cartel-, 25 Ala. 498, it was held Garey v. Meag-har, 33 Ala. 630 ; 
 
 that where there is conflicting- evi- Chesapeake Bank v. Swain, 29 Md. 
 
 dence, the question as to whether or 483. 
 
 not a usag-e is established should be ' Halverson v. Cole, 1 Speai-s (S. 
 
 left to the jury, and that where C.) 321 ; Thomas v. Graves, 1 Mill 
 
 there is the evidence of only one (S. C.) Const. 309; Bissell v. R^an, 
 
 witness thereto, the court should 23 111. 566 ; Wood v. Hickok, 2 Wend. 
 
 tell the jury that there is no evi- (N. Y.) 501 ; Halls v. Howell, Harp. 
 
 dence of a usage before them. See (S. C.) 427. 
 
 also Boardman v. Spooner, 13 Allen = Hamilton v. Nickerson, 13 Allen 
 
 (Mass.), 359. But this is not the (Mass.), 351; Vail v. Rice, 5 N. Y. 
 
 rule now generally recognized, and 155 ; Partridge v. Forsyth, 29 Ala, 
 
 if a witness testifies fully and ex- 200 ; Robinson v. United States, 13 
 
 plicitly to the existence of a usage, Wall. (U. S.) 365. 
 
 and his testimony is not contra- = Hamilton v. Nickerson, 13 Allea 
 
 dieted, it cannot be assiimed as a (Mass.), 351. 
 
 legal conclusion that the proof is in- * Greenfield Bank v. Crafts, 2 
 
 sufficient. Martin v. Mobile Bank, Allen (Mass.), 269. 
 
 9
 
 130 EVIDENCE. [CIIAP. 11. 
 
 ollicis ill the vicinity, is sufficient to authorize the jury to 
 fuul siK'h to bo the general custom.' To prove a custom for 
 all the iiihal)itanls of Hampton to deposit sea-weed upon the 
 close of the plaintiffs, the defendant offered evidence that 
 thirty of the inhal)itaiits had done so for niMiiy years. It was 
 held that this was competent evidence to he submitted to the 
 jury to prove the custom. So, where a plea alleged a cus- 
 tom in the inhabitants of Hampton to haul sea- weed upon 
 the plaintiff's close, the evidence was, that only those iiiha))- 
 itiuits of Hampton exercised the right who lived at a con- 
 venient distance from the sea-shore, it was held that this was 
 competent evidence of the custom. ^ 
 
 A iisao-e governing a question of legal right cannot be 
 proved b}^ isolated instances, but should be so certain, uni- 
 form and notorious that it must probably have been under- 
 stood l>y the parties as entering into the contract.^ 
 
 Where the fact is material that a purchaser of land has 
 actual knowledge of a right of way over the same, evidence 
 that the way was used for many years, and that the pur- 
 chaser lived all the time in the same immediate neighbor- 
 hood, is properly submitted to the jury.'* The fact that it 
 is shown that a certain method of doing business is "very 
 common," does not establish a usage.^ To establish a ship- 
 ping usage on a certain river, the witness may state his 
 habit and custom in shipping on all boats on the river.® 
 Proof of the usage of the clerks of steamboats to receive 
 and carry packages from one port to another, without hire, 
 in the expectation that such boat would be preferred by the 
 parties in their shipments of freight, is insufficient to bind 
 the owners ; first, because no certain or fixed standard of re- 
 muneration is shown, nor that the consignee of the package 
 would be liable to make any return for the risk and labor in- 
 curred ; and, second, because it is not shown that such usage 
 had grown up with the consent of the owners of vessels, or that 
 
 ' Sumner v. Tyson, 20 N. H. 384. ■• Wissler v. Hershey, 23 Penn. St. 
 
 ^ Knowles v. Dow, 22 N. H. 71. 333. 
 
 ' Cope V. Dodd, 13 Penn. St. 33 ; ' Ansill v. Crawford, 7 Ala. 335. 
 
 The Paragon, 1 Ware (U. S.), 322 ; " Berry v. Cooper, 28 Ga. 543. 
 Desha v. Holland, 12 Ala. 513. 
 
 Jl
 
 SEC. 41.J PAROL EVIDENCE, RULES RELATING TO. 131 
 
 it was more than a mere accommodation usage. ^ Where the 
 plaintiff relied upon a parol acceptance of a bill of exchange, 
 evidence of a custom of the defendants to accept always in 
 writing and make corresponding entries on their books, was 
 held competent as tending to show in this case that the bill 
 had not been accepted.- Where there is proof of an agreed 
 price or compensation, or of a usage which might aSect it, 
 or from which an agreement might be inferred, it would not 
 be correct to authorize them to judge of the reasonableness 
 of the charges, irrespective of such agreement or usage ; 
 but the court should determine whether, if proved to the 
 satisfaction of the jury, the usage is reasonable or operative.^ 
 The mere opinions of witnesses are not evidence of a usage."^ 
 That a railroad company had been for about a month in the 
 habit of storing cotton consigned to their agent, at the ware- 
 house of A., without any proof that this was generally known, 
 or any other evidence that the shipper had notice of it, is not 
 sufficient to bind him.® An isolated instance is not sufficient 
 to prove a custom, nor will evidence of the custom of one 
 person be sufficient to establish a general course of trade.^ 
 When a special custom at the place of shipment is proved, 
 and the question is whether the purchaser had knowledge of 
 the special custom, and contracted in reference to it, the pre- 
 vious course of dealing between the same parties — such as 
 the order, shipment and receipt of several invoices of goods, 
 without any charge for insurance — is sufficient evidence from 
 which the jury may infer knowledge of the special custom.''' 
 Evidence that "there has always been a custom at a certain 
 Baw-mill and other mills in the neighborhood to leave the 
 Blabs as belonging to the mill, the owners of the logs never 
 claiming them," does not establish a legal right in the mill as 
 real estate to the slabs sawed.^ Proof is admissible of a cus- 
 tom among merchants, where merchandise is sold on con- 
 
 * Cincinnati, &c., Co. v. Boal, 15 * Alabama, &c., R. R. Co. V. Kidd, 
 Ind. 345. 35 Ala. 209. 
 
 * Smith V. Clark, 12 la. 82. ^ Buit v. Sickles, 17 Ark. 428. 
 ' Codman v. Armstrong-, 28 Me. Walsh v. Frank, 19 Ark. 270. 
 
 91. ' Adams v. Morse, 51 Me. 496. 
 
 * Garey v. Meagher, 33 Ala. 630.
 
 i;i2 EVIDENCE. [CIIAP. H* 
 
 tlilioii, to deliver it to the buyer before compliance with the 
 condition, iind that such change of custody is not de facto a 
 waiver of the condition, and the property does not pass 
 thereby.' AVHicn, in a suit against a railroad company for 
 an injury received while passing along a highway, an issue 
 is made upon the unreasonable or negligent conduct of the 
 company in the use of the highway at the time complained 
 of, its usage at other times has no legitimate bearing upon 
 this issue, and evidence respecting such usage is incom- 
 petent.^ No exception lies to the admission of evidence of a 
 custom existing in a trade without direct evidence that it 
 was known to the opposite party, if the party offering it 
 contends that he can prove, from all the evidence in the 
 case, that it must have been known to him, and that question 
 is argued and submitted to the jury under proper instructions 
 in matter of law.^ In determining whether a salary or com- 
 pensation paid to a director of a bridge corporation was a 
 reasonable expense of the corporation, evidence is inadmissi- 
 ble of custom in sundry other corporations to pay directors 
 no salaries as compensation for services.^ A general usage 
 in any place, by which sales on commission are regulated, 
 may be given in evidence, for it is a reasonable and legal 
 presumption that every man knows the usage of the place in 
 which he traffics, whether by himself or his factor, and, if 
 the usage is not illegal, he is bound by it.^ Goods being 
 consigned to an agent for sale, with general instructions to 
 remit the proceeds, it is a sufficient compliance with such 
 instructions if the agent remits by a bill of exchange, with- 
 out indorsing or guaranteeing it, provided such is the usage 
 at the agent's place of business, and the agent uses proper 
 diligence and discretion in the purchase of the bill. In an 
 action against the agent, to recover the proceeds of such a 
 sale, proof of the usage and of a remittance accordingly is a 
 sufficient pnmd facie defense, and if it is established by the 
 
 * Farlow^j. Ellis, 15 Gray (Mass.), * Central Corp. v. Lowell, 15 
 
 229. Gray (Mass.), 106. 
 
 ' Gahagan v. Boston, &c., R. R. ^ Dwig-ht v. Whitney, 15 Pick. 
 
 Co., 1 Allen (Mass.), 187. (Mass.) 179; Goodenow «. Tyler, 
 
 ' Dodge V. Favor, 15 Gray (Mass.), 7 Mass. 36, 46. 
 82.
 
 SEC. 42.] PAROL EVIDENCE, RULES RELATING TO. 133 
 
 agent, the burden of proof is then on the principal to show 
 that bills remitted in pursuance of the usage ought to be in- 
 dorsed or guaranteed by the agent.^ A usage may be 
 proved by parol, whether it originates in a public written 
 law, or not.^ In an action for damages for the want of 
 correspondence between tobacco bought by sample and the 
 samples })y which it was sold, evidence showing a custom of 
 dealers in Baltimore of buying and selling in bulk, by sam- 
 ples prepared by the State inspectors, without insuring cor- 
 respondence in quality, is admissible.^ 
 
 Sec. 42. Need not necessarily be General. 
 
 It is not necessary that a usage should be gene7'al, that is, 
 extend over the whole country, as mere private usages, that 
 is, usages of a particular business house or individual in a 
 certain department of business, may l)e binding, zf it is shown 
 that tlte parties knew of it at the time when the contract was 
 entered into,'' or knowledge of it in some way is brought 
 home to them, so as to raise a presumption that they con- 
 tracted in reference to it ; and under this rule it has been 
 held that the custom of banks in reference to a demand of 
 payment, etc., might be shown, although not according to 
 the rules of the common law;^ neither is its antiquity of 
 any importance except as in aid of the main point, which is, 
 to show that the parties knew of the usage and intended to 
 adopt it as the law of their contract,^ AVith reference to 
 the evidence necessary to support an alleged usage, it may 
 be said that it is not necessary to show either the antiq[uity, 
 the uniformity, or the notoriety of custom, which in respect 
 
 » Potter V. Morland, 3 Cush. bia v. Magruder, 6 H. & J. (Md.) 
 
 Mass.) 384. 172; Kennebeck Bank v. Page, 9 
 
 ^ Drake v. Hudson, 7 H. & J. Mass. 155; LoringiJ. Gurney, 5Pick. 
 
 (Md.) 399; see also Livingston v. (Mass.) 16; Leavitt v. Simes, 3 N. 
 
 Maryland Ins. Co., 7 Cranch. (U. S.) H. 14 ; Weed v. Gorham, 10 Mass. 
 
 506. 366 ; Bank of Utica v. Smith, 18 
 
 ' Gunther v. Atwell, 19 Md. 157. John. (N. Y.) 230 ; Emanuel V. 
 
 * Wood V. Hicock, 2 Wend. (N.Y.) Robarts, 9 B. & S. 121. 
 
 501 ; Gahay v. Lloyd, 3 B. & C. 793. ^ Kendall v. Russell, 5 Dana (Ky.), 
 
 * Renner v. Bank of Columbia, 9 503 ; Thompson v. Hamilton, 12 
 Wheat. (U. S.) 581 ; Bank of Cohim- Pick. (Mass.) 425.
 
 l.Vt EVIDENCE. [CIIAP. II. 
 
 of all these becomes a lociil law. The usage may be still in 
 course of growth ; it may require evidence for its support 
 in each cjise ; but iu the result it is enough if it appear to 
 be so well known and acquiesced in that it may be reason- 
 al)ly presumed to have been an ingredient tacitly imported 
 by the parties into their contract. The usage must be shown 
 to be certain and reasona])le, and so universally acquiesced 
 in that everybody in the particular trade knows it, or might 
 know it if he took the pains to inquire.* 
 
 Where it is attempted to engraft on a contract some usage 
 of a particular trade or local custom, the opposite party is 
 at liberty to disprove the usage or custom l)y the like evi- 
 dence, and for that purpose to show other previous transac- 
 tions in like cases between the same parties wherein the 
 supposed usage or custom was not acted on.^ 
 
 If the usage exists, and it is not inconsistent with the 
 written contract, it is precisely the same as if it were written 
 in words attached to the contract, and it cannot be got rid 
 of by proof of an oral agreement to waive or vary it.^ 
 
 The words ''usage of trade" are to be understood as re- 
 ferring to a particular usage to be established by evidence, 
 and perfectly distinct from the general custom of merchants, 
 Avhich is the universal established law of the land, which is 
 to be collected from decisions, legal principles and analogies, 
 not from evidence in pais, and the knowledge of which 
 resides in the breast of the judge.'* In these cases evidence 
 of a general custom was not admitted to contradict the law 
 merchant.* 
 
 ' Plaices. Allcock, 4 F.&F. 1074; Mn Kidston v. Empire Marine 
 
 Foxall V. Intel-national Land Credit Insurance Co., L. R., 1 C. P. 535; 
 
 Co., IG L. T., N. S. 637. L. R., 2 C. P. 357, in an action on a 
 
 ' Bourne v. Gatliffe, 3 M. & G. policy of marine insurance, it was 
 
 "^3- held that evidence that expenses 
 
 ' Fawkes v. Lamb, 31 L. J., Q. B. incurred in preserving the subject- 
 
 98. See also Burgess v. "Wickham, matter of insurance were not " par- 
 
 3 B. & S. 669 ; Clapham v. Langton, ticular average," but were " par- 
 
 5 B. & S. 729. ticular charges," as those terms were 
 
 * 1 Smith, L. Cases, 7th ed., p. 610 ; understood in the business of marine 
 
 Suse V. Pompe, 8 C. B., N. S. 538 ; insurance, was admissible to show 
 
 SOL. J., C.P. 75; Meyer -u. Dresser, the mode in which such expenses 
 
 16 C. B., N. S. 646. -ypere treated by mercantile men ;
 
 SEC. 42.J PAROL EVIDENCE, RULES RELATING TO. 135 
 
 But proof of the usage of trade is not admissible to con- 
 tradict the plain words of an instrument not used in a 
 technical sense ; as where a policy of insurance was " on the 
 ship till moored at anchor 24 hours, and on the goods till 
 discharged and safely landed," evidence of a usage that the 
 risk on the goods, as well as the ship, expired in 24 hours, 
 was held inadmissible to qualify the unequivocal words of 
 the policy. 1 So a contract for payment in money cannot be 
 explained to mean payment in goods ; but it may be shown that 
 goods were in fact accepted as cash in the particular transac- 
 tion.^ So where goods are sold under a memorandum to be 
 paid for by bill, oral evidence is inadmissible to show that 
 bill means approved bill.^ So in an action on warranty of 
 "prime singed bacon," oral evidence was rejected of a prac- 
 tice in the bacon trade to receive bacon in some desfree 
 tainted as " prime singed bacon."^ So oral evidence is not 
 admissible to explain the meaning of the Avords " more or 
 less " in a mercantile contract:^ or to show that "caro-o" 
 and "freight" apply to passengers as well as goods ;^ or to 
 show that boats on the outside of a ship, slung upon the 
 quarter, are not protected by a marine policy in the usual 
 form on the ship and furniture ;''' or to show a custom within 
 the port of London that the insurers of jettisoned goods are 
 only liable for the share of the loss cast upon the owner of 
 jettisoned goods in the general average statement f or to 
 show that a contract to sell " ware potatoes" means a certain 
 sort of " ware potatoes ;"^ or that on a contract to sell wool 
 "to be paid for by cash in one month, less 5 per cent dis- 
 count," the vendor has a lien on it foi* payment by usage of 
 the trade.'" Oral evidence of what the parties meant by a 
 
 but that the usage • proved by it * Cross v. Elgin, 2 B. & Ad. 106. 
 
 was in affirmance of the common ® Lewis v. Marshall, 7 M. & G. 
 
 law, and did not control or vary the 729. 
 
 language of the policy. '' Blackett v. R. Exchange Assur. 
 
 ' Parkinson v. Collier, Park Ins., Co., 2 C. & J. 244. 
 
 6th ed. 416. * Dickenson v. Jardine, L. R., 3 
 
 " Smith V. Battams, 26 L. J., Ex. C. P. 639 
 
 232. 9 Smith v. Jeffryes, 15 M. & W. 
 
 ^ Hodgson V. Davies, 2 Camp. 561. 
 
 530. '» Spartali v. Benecke, 10 C. B. 
 
 * Yates V. Pym, 6 Taunt. 446. 212; 19 L. J., C. P. 293; Godts v.
 
 13tJ KVIDENCK. [chap. II. 
 
 provision in the sale of u cargo, that " 14 da^s arc to be 
 allowed for delivery," was not admitted ; but if evidence of 
 li (/ene ml iiJ^at/e v\[)hiin'\u'^ {hose \\'oi\U had been offered, it 
 ^v()uld })erha[)s have been adnii>>ible.' In a contract for the 
 sale of taliow by defendant in tiie name of a broker Avho was 
 his own representative, the defendant wius not allowed to 
 show a custom of trade upon such a contract to look to the 
 broker for its completion.^ But usage of trade is admissible 
 to show that the broker is personally liable on a contract of 
 sale on behalf of an undisclosed principal.^ The evidence 
 of such usages ma}^ be confirmed by evidence of a similar 
 custom in a similar trade in the same place, e.g., in the colo- 
 nial market, to corroborate the usage in the fruit market.* 
 So by evidence of a similar custom in the same trade at a 
 neighboring place.* Where a charter party was signed by 
 the defendants, "as agents for merchants," evidence of a 
 custom wa.s admitted to show that the defendants were liable 
 on the charter party as principals, if their principal's name 
 was not disclosed within a reasonable tinie.^ 
 
 Sec. 43. Must be Established by Instances of its Application. 
 
 A witness, if asked whether a certain usage exists in a 
 particular trade, who answers yes, but is unal)le to give 
 instances in which to his knowledge it had been acted upon, 
 proves nothing.''^ It is not sufficient to show by a witness 
 belonging to a particular trade, that he does a certain thing 
 in a particular way, but it must also be shown that that is 
 
 Rose, 25 L. J.. C. P. 61. The case =■ Humfrey v. Dale, 7 E. & 13. 
 
 of Spartali v. Benecke, supra, was 266 ; see also Crojiper v. Cook, L. 
 
 a good deal observed upon by the R., 3 C. P. li»4, 199. 
 
 Ex. Ch. in Field v. Lelean, 6 H, & * Fleet v. Murton, L. R., 7 Q. B. 
 
 N. 627 ; 30 L. J., Ex. 170, ante, p. 126. 
 
 24 ; but the difference of opinion is * Plaice v. AUcock, 4 F. & F. 
 
 not as to the priiiciple, but as to the 1074. 
 
 meaning of the contract and the • Hutchinson v. Tatham, L. R., 8 
 
 effect of the custom. See also Phil- C. P. 482. 
 
 lipps V. Brianl, 1 H. & N. 21 ; .52 L. ' Hall v. Benson, 7 C. & P. 911 ; 
 
 J., Ex. 233. Cunningham v. Fonblanque, 6 C. & 
 
 ' Sotilichos 1). Kemp, 3 Exch. 105. P. 44 ; Geary v. Meagher, 33 Ala. 
 
 " Trueman v. Loder, 11 Ad. & E. 630. 
 589.
 
 SEC. 43.J PAROL EVIDENCE, RULES RELATING TO. 137 
 
 the usual mode adopted iii the trade. ^ The course adopted 
 by the trade shoukl be shown,"- and evidence ot an isolated 
 instance is insufficient.'^ But the belief of a witness in the 
 existence of a business usage, as derived from a knowledge 
 of the business for a long series of years, is competent to 
 prove such usage, and it is immaterial that the knowledge 
 is derived wholly from his own business, if that is sufficiently 
 extensive to enable him to testify to the fact of usage.^ It 
 is not necessary that the witness should be engaged in a par- 
 ticular trade or business to make him competent to testify to 
 a usage pertaining to it. It is sufficient if he has acquired 
 his knowledge by dealing with those engaged in it.^ Thus, 
 in the case last cited, it was held that the customary mode 
 of banks in respect to certain matters may be proved by a 
 person who has dealt with, l)ut was never employed by them. 
 So the usual mode of transferring notes, drafts, etc., may be 
 proved by a witness who has derived a knowledge thereof 
 in any manner that enables him to testify to the facts.^ In 
 order to estalilish the existence of a general usage among 
 banks, or, indeed, in any business, the facts nmst be shown ; 
 that is, the witness must state what is done, and how, and 
 not merely his opinion deduced from the manner of dealing 
 in a few instances in particular ])anks.''' The mere opinion 
 of witnesses that, in certain transactions with an agent, it is 
 customary to hold him responsible, is not such evidence of a 
 custom in that respect as will exonerate the principal.^ A 
 
 ' Pfiel V. Kemper, 3 Wis. 315. In to establish a usage of trade. Anstill 
 
 this case it was sought to tix the v. Crawford, 7 Ala. 335. 
 
 value of professional services by ^ Burr v. Sickle, 17 Ark. 428 ; 
 
 usage, and it was held not compe- Greenfield Bank v. Crafts, 2 Allen 
 
 tent to ask a witness what he should (Mass.), 269. 
 
 have charged for the same services ; * Hamilton v. Nickerson, 13 Allen 
 
 but that the evidence must be either (Mass.), 351. 
 
 to the value of the services or the ^ Grippin v. Rice, 1 Hilt. (N. Y. C. 
 
 customary rate of compensation. P. ) 184. 
 
 '^ Ruan V. Gardner, 1 Wash. 145 ; "^ Commercial Bank of Pennsyl- 
 
 Winthrop v. Ins. Co., 2 id. 7 ; Austin vania v. Union Bank of New York, 
 
 V. Williams, 2 Ohio, 64. Proof that 19 Barb. (N. Y.) 392. 
 
 a particular mode of selling cotton ' Chesapeake Bank v. Swain, 29 
 
 in Mobile "is very common," but Md. 483. 
 
 that a few factors at that place ' Geary v. Meagher, 33 Ala. 630. 
 would not do so, was held insufficient
 
 138 EVIDENCE. [chap. U. 
 
 iisige ma\' be proved by parol, whether it iirlscs; from a 
 public written law or not,' and the quesition ass to whether 
 or not it can be established by the evidence of one witness, 
 depends upon the extent of his experience and knowledge 
 in that regard. But if one witness swears to the existence 
 of a certain usage, aud another equally competent and con- 
 versant with the trade or business to which it relates, the 
 existence of the usage is not established, especially where 
 other witnesses could be but are not called.^ But, generally, 
 when the evidence is contlicting, it should be submitted to 
 the jury to determine whether the usage is established or 
 not. But where there is only the evidence of one witness, 
 and his testimony is not restricted to any particular time or 
 l)lace, and tends to estal)lish a usage in conflict with the law 
 or other well recognized usages, it is proper for the court to 
 tell the jury not to regard it.^ 
 
 Sec. 44. Genered Usage, hovr established. 
 
 A general usage in a particular place, regulating certain 
 niatters, as sales on commission, may always be shown when 
 the usage is reasonal)le and not contrary to law, and it will 
 be presumed that every one dealing where such usage pre- 
 vails, knows of and deals in reference to it,"* and if the usage 
 is not so general as to uphold such a presumption, his knowl- 
 edge thereof may be shown by the previous coui"se of deal- 
 ing between the parties, and this furnishes sufficient evidence 
 from which the jury may infer knowledge of the usagc.^ As 
 a general rule, a custom cannot be established from the tes- 
 timony of one witness.^ Especially is this the case when the 
 
 ' Drake f. Hudson, 7 II. & J. notes expire at a certain time. 
 
 (Md.) 399 ; Livingston v. Maryland Moore v. Eason, 11 Ired. (N. C.) L. 
 
 Ins. Co., 7 Cranch (U. S.), 506. But 568. 
 
 •where it is sought to prove a usage ' Parrott v. Thacher, 9 Pick, 
 
 as an incident of a written contract, (Ma.ss.) 426. 
 
 the contract itself should be first ' .lewell v. Centre, 25 Ala. 498. 
 
 produced, and then any incident to * Dwight t). Whitney, 15 Pick, 
 
 it arising from usage can be proved (Mass.) 179 ; Goodnow v. Tyler, 7 
 
 by parol, but incidents cannot be Mass. 36. 
 
 proved first to establish the exist- * Walsh v. Frank, 19 Ark. 270. 
 
 ence of the contract, as to prove a • Vait v. Rice, 5 N. Y. 150 ; 
 
 custom of a place by which all Thomas v. Graves, 1 Mill (S. C.)
 
 SEC. 44.J PAROL EVIDENCE, RULES RELATING TO. 139 
 
 custom sought to be established is one in favor of a certain 
 town or locality. Thus, in a case where it was sought to 
 establish a custom for all the inhaljitunts of a certain town to 
 deposit sea-weed upon the plaintifl:"'s land, it was held that 
 thirty inhabitants having testified that they had done so for 
 many years, it was competent evidence from which the jury 
 might find the custom.' In all cases, in order to establish a 
 customary right, the evidence should not be less than that 
 required to establish a prescriptive right.- The burden of 
 proving either a custom or usage of trade devolves upon the 
 party seeking the benefit of it,^ and must be shown by facts 
 rather than the belief or opinion of witnesses. Thus for a 
 witness to state that a custom or usage exists, without stat- 
 ing instances where it has been acted upon or applied, 
 proves nothing, because the whole matter rests in his opinion 
 or belief, but if he can speak from instances in which it has 
 been acted upon, facts are tlicn presented from which the 
 jury can arrive at a conclusion.^ While a custom or a usage, 
 at a place distant from that in which it is sought to apply 
 it, may be shown as tending to establish such custom or 
 usage at the place where it is sought to give it efiect, yet it 
 has no such tendency unless instances, in which it has been 
 acted upon, are shown at such place.^ But proof of a single 
 instance at the place in question, unless the effect of such 
 evidence is antagonized Ijy proof of similar transactions in 
 similar establishments in which it was not acted upon.^ To 
 establish a custom of shippers on a certain river, it is corn- 
 
 Const. 309 ; Wood v. Hicock, 2 to dig sand genei'ally, was sufficient 
 
 Wend. (N. Y.)501 ; Bissell v. Ryan, to establish the custom. 
 
 22 111. 566 ; Partridge v. Forsyth, « Smith v. Floyd, 18 Barb. (N.Y.) 
 
 29 Ala. 200. 523. 
 
 > Knowles v. Dow, 22 N. H. 387. = Caldecott v. Smythies, 7 C. & P. 
 
 In Hanmer v. Chace, 4 DeG. J. & S. 808. 
 
 626, it was held that a custom of a * Hendei'son v. Charnock, Peake, 
 
 manor might be proved by one in- 4. 
 
 stance, and in a suit by the lord to ^ Bro-wn v. Wilkinson, Co. Lit. 
 
 restrain a copyholder from digging 2706 ; Milward v. Hilbert, 3 Q. B. 
 
 vitreous sand on his own tenement, 120. 
 
 evidence of a custom to dig it for * Citizens' Ins. Co. v. McLaugh- 
 
 twenty-seven years, and of a custom lin, 53 Penn. St. 485 ; Sumner v. 
 
 Lyton, 20 N. H. 384.
 
 140 EVIDENCE. [CIIAP. U. 
 
 pctriit lor a witMc'tj-s to .slaLe his pnictico in that respect on 
 all ljt)at.s oil the river.' The I'act that a person whom it la 
 sought to allecl by a local custom or u-sage, lives at a great 
 distance from the place where the custom, etc., exists, docs 
 not, if the transaction had its situs at such place, tend to 
 overcome the prc^umijlion that he knew of the custom and 
 contracts in reference to it, as it is regarded as reasonable to 
 presume that a person knows the custom and usages of a 
 place at which he traffics, wherever he may reside.- In 
 order to establish a usage of a certain trade or business, the 
 testimony should come from those engaged in the business, 
 or those who are familiar with the existence and application 
 of the usage, l)ut the testimony of a single witness, who testi- 
 fies that he knew what had been the custom of his neighboi-s 
 for several years, in relation to certain matters — as in the 
 case cited below, the manner in which farmers receive their 
 supplies from merchants who advanced to them — is not suffi- 
 cient to establish a usage.-^ 
 
 Sec. 45. Illustrations of the Application of the Rule. 
 
 An occasional practice tolerated to a certain extent in a 
 certain department of business for any given year, cannot 
 be said to be made out, without distinct proof of some spe- 
 cific instances during the period in question,'' Opinions or 
 conclusions of witnesses as to the ellcct of a usage of trade 
 either upon a contract or the legal rights of parties is not 
 admissible to show either the character or force of the usage.^ 
 In order to disi)rove the application of a usage or of regula- 
 tions of a board, as a Chamber of Commerce, having 
 corporate powers, to appoint an inspector of certain classes 
 
 ' Berry v. Cooper, 28 Ga. 543. estahli.sh the fact that the title to 
 
 * Dwight V. Whitney, 1.5 Pick, the property did not pass by such 
 
 <Mass.) 179 ; Goodenow v. Tyler, 7 delivery. Farlow v. Ellis, 15 Gray 
 
 Mas-s. 36. Proof of a custom among- (Mass ), 229. 
 
 merchants, where merchandise is ' Smith t). Wright, 56 Ala. 417. 
 
 sold on condition, to deliver it to the * Chenery v. Goodrich, 106 Mass. 
 
 buyer before the condition is com- 566. 
 
 plied with, and that such a change ^ Haskins v. Warren, 115 Mass. 
 
 of possession is not in fact a waiver 514. 
 
 of such condition, is admissible to
 
 SEC. 45. j PAROL EVIDENCE, RULES RELATING TO. 141 
 
 of goods, as in the case cited below provides, one of the 
 purposes of the rules of which is declared to be, •' To 
 establish uniformity in the commercial usages of the city," 
 to a certain class of property, it is competent to show that 
 certain classes of articles are specified as subject to the rules 
 or usage, but that the article in question is not named, and 
 the effect of this is to show the non-existence of such usao-e 
 as to the articles not named.' When a sale is made in a 
 place where a board of trade exists, which has established 
 certain rules relating to the sale of certain classes of property, 
 as cotton, and a purchaser being informed of such rnles does 
 not dissent or object to them, but proceeds with the contract, 
 those rules become a part of the contract as much as though 
 they had been incorporated into it, although they have not 
 existed or been acted upon long enough to acquire the 
 character either of a custom or usage of the trade.^ 
 
 If a usage in the conduct of a particular business is estab- 
 lished in one locahty, it will, in the absence of evidence to 
 the contrary, be presumed that it prevails in other similar 
 establishments, at least in the vicinity. Thus, in a Pennsyl- 
 vania case, 3 a policy was issued by the defendant upon a 
 patent leather manufactory in Pittsburgh, Pa., belonging to 
 the plaintiff. The policy provided that benzole in quanti- 
 ties not exceeding five barrels might be kept in a shed de- 
 tached from and in the rear of the main l)uildiug, and no- 
 where else on said premises. It was well known that benzole 
 was an important and essential article in the prosecution of 
 the business and was necessarily and universally used. The 
 custom of the plaintiff's workmen was to carry an open 
 bucket of it into the factory as often as wanted, and upon 
 the morning of the fire a workman carried an open bucket 
 of it into the factory and set it down, when it almost 
 instantly ignited, and, communicating the flames to the 
 building, it was burned down. To prove that the method 
 of carrying the benzole into the factory in open buckets was 
 
 ' Kershaw v. Wright, 115 Mass. ^ Citizens' Ins. Co. v. McLaughlin, 
 361. 53 Penn. St. 485. 
 
 " Leigh V. Mobile, &c., R. R. Co., 
 58 Ala. 165.
 
 142 EVIDENCE. [chap. H. 
 
 according to the custom of the trade, it was shown hy the 
 U'.stiinony of a witness that it was the custom in ticelve simi- 
 lar factories iu Newark, New Jersey, and no evidence being 
 introduced to shoio a contrary custom in Pittsburgh, where the 
 })laintitl"'s factory was located, it was held sufficient to estab- 
 lish the usage in Pittsburgh. Woodward, J., upon this 
 point, saitl : " We think there was no error in the admission 
 of the evidence of Harden. He gave an intelligible account 
 of the mode of using benzole in twelve similar factories in 
 Newark, New Jersey, and said it was brought in and used 
 from cans and buckets. If any other custwn had been estab- 
 lished at Pittsburgh it could have been shown^ but in the 
 absence of all other evidence on the subject, tins ivas competent 
 to fuc the usage of the business^ Thus it will be seen that 
 while the usage of a certain trade in one locality is not nec- 
 essaril}' the usage of the same trade in another, yet such 
 usage may be proved, and, unless a different usage is shown 
 to exist iu the locality to which it is sought to apply it, it 
 will be presumed to be usage of the trade in that locality. 
 In a New Hampshire case,' evidence of a custom among iron 
 manufacturers to warrar.t the quality of all the goods made 
 by them was held to be established by jn'oof of such a cus- 
 tom in three similar estal^lishments in the vicinity, there 
 being no evidence of a contrary custom in any other similar 
 establishment. 
 
 A usage must be proved by evidence of facts and instances 
 in which it has been acted upon,* and in a case where the 
 <|ue.sti<)n Avas, whether a certain practice had been tolerated 
 to a certain extent at a custom house, the party denying the 
 practice was held entitled to a ruling that the practice is not 
 established if no witness can recall a specific instance of it.* 
 
 Sec. 46. Mere Conflict of Zlvidence as to, does not defeat. 
 
 The mere fact that the evidence is conflictinsf does not 
 entitle the party, against whom the usage is invoked, to a 
 ruling that the usage is not proved, but it is for the jury to 
 
 » Sumner v. Tyson, 20 N. H. 3S4. ^ Chenery u Goodrich, 106 Mass. 
 * Mills v. Hallock, 4 Edw. Ch. 566. 
 (N. Y.) 652.
 
 SEC. 46.] TAROL EVIDENCE, RULES RELATING TO. 143 
 
 say from all the evidence whether or not the usage is estab- 
 lished. ^ But if only one witness testifies to the existence of 
 a usage, and another equally competent and of equal credi- 
 bility contradicts such evidence, it is not pr^per to leave it 
 for the jury to say whether the usage is established or not, 
 but they should be instructed that the evidence is insuffi- 
 cient."^ Upon the question as to whether a certain usage 
 
 ^ Upton V. Sturbridg-e Cotton 
 Mills, 111 Mass. 446. In Winsor v. 
 Dellaway, 4 Met. (Mass.) 221, where 
 contradictory evidence was offered 
 as to the existence of a usage on 
 which the plaintiff relied to support 
 his action, and the jury were in- 
 structed that, if it was proved that 
 the usage existed, and the defend- 
 ant knew it existed, the plaintiff 
 was entitled to recover, and the 
 jury thereupon returned a verdict 
 for the defendant ; it was held that 
 the plaintiff had no cause of excep- 
 tion to such instmction. See also 
 Tunell V. Carter, 25 Ala. 498, to 
 same effect. 
 
 ^ Parrott V. Thacher, 9 Pick. 
 (Mass.) 426. In the absence of bet- 
 ter proof it was held that evidence 
 of long and uninterriTpted usage, 
 reputation, the declarations and 
 conduct of the OMmers of the ad- 
 joining land, and the public acts of 
 the town, was properly admitted to 
 prove that an ancient corporation of 
 proprietors, now extinct, had dedi- 
 cated a certain lot to the public 
 use, as a landing place. Sevey's 
 case, 6 Me. 118. Evidence by a 
 justice of the peace that, when 
 called upon by parties to prepare 
 conveyances for them, it was his 
 habit to inquire whether they de- 
 sired absolute or conditional convey- 
 ances ; that he had no doubt such 
 inquiry was made in the present 
 instance ; that he never failed to 
 shape the paper according to the 
 expressed object of the parties; 
 
 and that he was also in the habit of 
 reading the papers after they were 
 written to those for whom they 
 were prepared, and especially if 
 they were workmen, was held inad- 
 missible. Pocock V. Hendricks, 8 
 G. & J. (Md.) 421. In an action 
 by commission merchants in Bos- 
 ton, to recover back money paid to 
 the consignor of goods sold by the 
 plaintiffs to a trader in the country, 
 who failed to pay for them, evi- 
 dence to show a usage of factors in 
 Boston to credit the amount of sales 
 immediately to the account of the 
 principal, and charge back in case 
 of the insolvency of the purchaser, 
 in case the factor has not been 
 negligent ; and also to show the 
 usage as to the credit given to city 
 and country purchasei-s, was held 
 to be admissible. Dvvight -y. Whit- 
 ney, 15 Pick. (Mass.) 179. Wit- 
 nesses may be examined to prove 
 the course of a particular trade, but 
 not to show what the law of that 
 trade is. Ruan v. Gardner, 1 Wash. 
 (U. S.) 145; Austin v. Taylor, 2 
 Ohio, 64. A witness, who had lived 
 both in New York and Mobile, un- 
 derstood it was the custom of mer- 
 chants that the employer should 
 pay the expenses and passage of 
 clerks who were engaged in the 
 former place to do service in the 
 latter place, for the whole of the en- 
 suing business season ; that the 
 witness, who was a merchant, had 
 never so employed or paid a clerk, 
 but he knew of one case where, un-
 
 Ill EVIDENCE. [Clivr. II. 
 
 exists or not, a witness may be asked to describe how, under 
 llic usM'^e, a transaction like the one in question would be 
 tondiuted l»v all the parties thereto from its inception to 
 its conclusion.' It niny be said that a usage of a trade must 
 be jn'oved hi/ the mull /'plication or aggregation of a, great 
 number of particular instances, shoiving a given course of 
 business, and a general, estahlislied understanding respecting 
 it:- It is not necessary that there should be either the 
 antiquity, uniformity or notoriety that is essential to estab- 
 lish a custom ; it is sufficient if it is shown to he so tvell 
 known and so generally acquiesced in that it may reasonably 
 be presumed to have been imported into their contract by the 
 parties.^ In a word, it must be shown that the usage is cer- 
 tain and reasonal)lc, and so universally acquiesced in that 
 every one engaged in the trade knows it, or might know it 
 if he exercised reasonable diligence in making inquiry. •• 
 
 Sec. 47. Eflfect of Local Usage. 
 
 A mere local usage is not binding upon a party unless he 
 has notice or knowledge of its existence at the time when 
 the contract was entered into, and the burden of establishing 
 knowledge is on the party setting it np.^ The usage or cus- 
 tom of a })atticul;ir port, in a particular trade, is not such a 
 
 der a stipulation to that effect, the boat of its receipt, in which event 
 
 wages and passage money of a clerk only, a charge was made. Knox v. 
 
 thus employed were paid by the Rives, 14 Ala. 249. 
 
 employer. II('ld, that this evidence ' Kershaw v. Wi-ight, 11.5 Mass. 
 
 Wiis inadmissible, and consequently 301. 
 
 incompetent to establish the usage " MacKenzie %\ Dunloji, 3 Macq. 
 
 or custom of trade. Price -Ji. "White, H. L. Cas. 22. 
 
 9 Ala. 5G3. The plaintiff having ' Juggomohun Ghore v. Manick- 
 
 l)roved that a steamboat of the de- hund, 7 Moore Ind. App. 203. 
 
 fendants was engaged in carrying * Place v. Allcock, 4 F, & F. 1074. 
 
 goods and merchandise, generally, ^ Kirchner v. Venus, 12 Moo. P. 
 
 for hire, and the general custom of C, N. S. 361 ; Rogei-s v. Mechanics' 
 
 boats engaged in similar business Ins. Co., 1 Story (U. S.), 603 ; Hall 
 
 with that of the defendant, held v. Howell, Haip. (S. C.) 427 ; Sinip- 
 
 that it was admissible for the de- son v. Margetson, 11 Q. B. 32; Al- 
 
 fcndant to explain the usage, by batrossi). Wayne, 10 Ohio, 513 ; Lat- 
 
 showing that no fi-oi'rht or compen- inior v. Alexander, 14 Ga. 2.50 ; 
 
 sation wns over chui-ged or allowed Flynn v. Murphy, 2 E. D. S. (N. Y. 
 
 uiion r<-).iittance of money, unless C. P.) 378; Barnard v. Kellogg, 10 
 
 some inidence was given by the "Wall. (U. S.) 383. 
 
 i
 
 SEC. 47.] PAROL EVIDENCE, RULES RELATING TO. 145 
 
 usage or custom as will, in contemplation of law, limit, con- 
 trol or qualify the language of a contract of insurance. It 
 must be some known, general usage or custom in the trade, 
 both applicable and applied to all tlie ports of the State, and 
 so notorious as to afford a presumption that all contracts of 
 insurance in that trade are made in reference to it as a part 
 of the policy.^ Indeed, any usage, to be binding, must be 
 established b}' such clear and satisfactory evidence that a 
 presumption naturally arises that the parties contracted in 
 reference to it.^ 
 
 A custom in a place from which goods are shipped, is not 
 necessarily binding upon a consignee at another place, and 
 from the mere fact of the existence of a certain custom at the 
 place of shipment, a jury would not be warranted in pre- 
 suming that such a usage existed at the place to which the 
 goods were consigned. Thus, the fact that a usage existed 
 at a city from which goods were shipped, that the bill of 
 lading shall not be detached from the draft until the draft is 
 paid, was held not sufficient to warrant the jury in presum- 
 ing that such usage existed in a neighboring city to which 
 the cargo was consigned.^ In order to make such a usage 
 valid, it must be recognized and acted upon in both cities, 
 and mere proof of its existence in one place does not warrant 
 an inference that it exists at another.* But when instances 
 of its application in one place are shown, it may be shown to 
 exist in other places for the purpose of establishing uniform- 
 ity or notoriety.^ The usage at the place of manufacture 
 prevails, rather than the place of sale, where the contract 
 relates to the manufacture of an article.^ 
 
 ' Rogers v. Mechanics' Ins. Co., Pierpont v. Fowle, 2 W. & M. (U. 
 
 ajite; Pittsburg-h Ins. Co. v. Dravo, S. C. C.) 24. 
 
 2 Weekly Notes Cases, 194 ; Dean « Kirchner v. Venus, 12 Moore P. 
 
 V. Swoop, 2Binn. (Penn.) 72 ; Adams C. C. 361 ; 7 W. R. 4.55 ; Mears v. 
 
 V. Ins. Co., 76 Penn. St. 411 ; Cope Waples, 3 Houst. (Del.) 
 
 V. Dodd, 13 id. 33 ; McMasters v. * Reynolds v. Continental Ins. 
 
 R. R. Co., 69 id. 374. Co., 36 Mich. 131. 
 
 " Bowling V. Harrison, 6 How. (U. ' Citizens' Ins. Co. V. McLough- 
 
 S.) 259 ; Strong v. Carrington, 11 lin, 53 Penn. St. 485. 
 
 Am. Law Reg. 287 ; Olericks v. ' Star Glass Co. v. Morey, 108 
 
 Ford, 23 How. (U. S.) 49; Collings Mass. 576. 
 V. Hope, 3 Wash. (U. S. C. C.) 149; 
 
 10
 
 lib 
 
 EVIDENCE. 
 
 CHAP. n. 
 
 Ill Now York it is held tliut proof of a local usage is iii- 
 atlinissibk' to control tlie rules of law respecting a particular 
 trade;' or to vary an ex[)ress agrceiucnt;^ or add incidents 
 thereto contrary to the rules of the general law, as to import a 
 Avairanty where caveat viiq)lo)' applies ;^ or to cpialify the plain 
 provisions of a contract about which there is no ambiguity;^ 
 or to contradict its plain legal import;^ or to overcome a 
 settled rule of commercial law, but it may be received to 
 exi)lain it.^ A local usage cannot be given effect to vary a 
 contract, as a usage for pledgees of stock to transfer it at 
 l)le{isure, when the contract of pledge only provided that it 
 might l)e transferred after default.''' The same rule was also 
 a[)plied to a usage ottered to alter the legal etrect of an in- 
 surance policy.^ And to a usage to satisfy contracts for the 
 sale of flour of a specified brand, by the delivery of other 
 brands of equal or better quality.' Or to admit of the 
 ilelivery of an article made from ditlerent materials from 
 those specified in a contract, as where a contract is to build 
 a " black tvalnut ■' counter, to show that it is customary 
 to make the tops and door panels of such counters 
 
 ' Higgins V. Moore, 34 N. Y. 417; 
 Minnesota R. R. Co. v. Morgan, 52 
 Barb. (N. Y.) 217 ; Bissell v. Camp- 
 bell, rA N. Y. 353. 
 
 ' Main v. Eagle, 1 E. D. S. (N. Y. 
 C. P.) 619 ; Stebbins v. Brown, 65 
 Barb. (N. Y.) 274; Beats v. Terry, 
 2 Sandf. (N. Y.) 127. 
 
 * Hawes v. Lawrence, 3 Sandf. 
 (N.Y.) 193 ; also4N.Y. 345 ; Beirne 
 V. Dord, 5 N. Y. 95. 
 
 * Callender v. Dinsmore, 55 N.Y. 
 200 ; Bradley v. Wheeler, 44 id. 495 ; 
 Mercantile, &c., Ins. Co v. State 
 Ins. Co., 25 Barb. (N. Y.) 319 ; Groat 
 •w. Gile, 51 N. Y. 431 ; Simmons v. 
 Law. 8 Bo.s. (N. Y.) 213. 
 
 ' Holmes v. Pettingill, 1 Hun (N. 
 Y.), 316 ; Allen v. Dyliers, 3 Hill (N. 
 Y.), 593 ; Dalton v. Daniels, 2 Hilt. 
 <N. Y. C. P.) 472 ; Vail v. Rice, 5 N. 
 T. 155 ; Lombardo v. Case, 45 Barb. 
 (N. Y.) 95 ; Sewall v. Gibbs, 1 Hall 
 (N.Y.), 602; Lawrence v. Maxwell, 
 
 53 N. Y. 19 ; Taylor v. Ketclium, 35 
 How. Pr. (N. Y.) 289 ; Wadswortli 
 V. Alcot, 6 N. Y. 64 ; Spears -». Hart, 
 3Ro])t. (N.Y.) 420 ; Currie v. Smith, 
 4 Leg. Obs. (N. Y.) 343 ; Lane v. 
 Bailey, 47 Barb. (N. Y.) 395 ; Wall 
 V. Ins. Co., 3 Duer (N. Y.), 264; 
 Bargett v. Oriental Ins. Co., 3 Bos. 
 (N. Y.) 385 ; Suydam v. Clark, 2 
 Sandf. (N. Y.) 133. 
 
 * Frith V. Barker, 2 John. (N.Y.) 
 327 ; Emery v. Dunbar, 1 Daly (N. 
 Y. C. P.), 408 ; Bowen v. Newell, 8 
 N. Y. 190; Gibson v. Culver, 17 
 Wend. (N. Y.) 305. 
 
 ' Dykers v. Allen, 7 Hill (N. Y.), 
 497 ; affirming S. C, 3 id. 593 ; Vail 
 V. Rice, 5 N. Y. 155; Currie v. 
 Smith, 4 Leg. Obs. (N. Y.) 343. 
 
 * Stebbins v. Globe Ins. Co., 2 
 Hall (N. Y.), 632; Mutual Safety 
 Ins. Co. V. Hone. 2 N. Y. 235. 
 
 * Beals V. Teriy, 2 Sandf. (N. Y.) 
 127.
 
 SEC. 47.] PAROL EVIDENCE, RULES RELATING TO. 147 
 
 of stained white wood.^ Or to treat as a delivery 
 that which is not in law a delivery.^ A local usao-e can 
 never vary the construction of a contract, unless it is clearly 
 proved that its existence was known to the parties, and that 
 their contract was made in reference to its terms.=^ Nor if it 
 contradicts the contract. -^ A custom of a particular locality 
 for the owner of a lot of land, after giving notice to the 
 owner of an adjoining lot to build his half of a partition 
 fence, and his refusal to do so, to build the whole, and hold 
 the party refusing for his share of the expense, has been held 
 to be a reasonable and just custom, which may be enforced.^ 
 A shipper of goods is chargeable with notice of an established 
 and well-known usage, existing in a particular trade, in re- 
 gard to the stowage of a general shij), both as to the manner 
 of stowing, and as to the difierent articles to be stowed 
 together. And if the shipper, in such case, gives no special 
 instructions, and his goods are stowed in conformity with 
 such usage, he is deemed to have assented to such mode of 
 stowage, and cannot, in case his goods are injured on the 
 voyage, in consequence of the mode of stowage, set that up 
 as a ground of complaint, or as a foundation for deprivino- 
 the owners of their freight. « Where a cargo was carried by 
 a vessel " addressed to " the owner of the cargo, he was held 
 to be entitled to no commissions on the freight, and any usage 
 giving him commissions in such a case was held to be an 
 unreasonable one, and the shipper was allowed no deduction 
 from the fi-eight, because wood and water, usually stowed 
 on deck, had been stowed below, as it appeared that the 
 bulkheads had been so moved as to give about the same 
 amount of room."'' In a case where a master and his vessel 
 were employed near Canton, in China, in a service not strictly 
 within their ordinary offices, and not, originally, in any way 
 contemplated, the ship being used, by an arrangement with the 
 
 ■ Greenstine v. Borchard, 50 * Sweet v. Jenkins, 1 R. I. 147. 
 Mich. 434 ; 45 Am. Rep. 51. * Knox v. Artman, 3 Rich. (S. C.) 
 
 * Suydam v. Clark, 2 Sandf. (N. 283. 
 Y.) 133; and see Smith v. Lynes, 5 = Baxter v. Leland, 1 Blatch. (U. 
 
 N. Y. 41. S. C. C.) 526. 
 
 ' "Wheeler v. Newbould, 5 Duer ^ Jelison v. Lee, 3 W. & M. (U.S. 
 
 <N. Y.), 29 ; aflfd., 16 N. Y. 392. C. C.) 368.
 
 148 EVIDENCE. |ciIAr. H. 
 
 a<'-0Mt of the owner ui Canton, for twenty-two months, as aa 
 opium store-ship, and, according to usage, a sum ol" five dol- 
 lai-s on each box was paid on the delivery of the opium, which 
 was called a " kumshaw," and which was exclusive of the 
 ])ric(^ paid lor storage, and the " kumshaws " were paid to the 
 master, with the ac(]uicscence of tli(! agent, there; having 
 been no express agreement iuad(! with r<!.spect to the same, 
 it was held, in a suit by the owner of the vessel against the 
 master, to recover the "kumshaws," as a part of the earn- 
 ings of the vessel, that it should be left to 1h<; jury to say 
 whether, by the usage of the trade, the "kumshaws " belonged 
 to the master.' The court must judg(; of the reasonableness 
 and validity of any usage. Thus, where there is proof of an 
 agreed price or compensation, or of a usage which might 
 affect it, or from which an agreement might be inferred, it 
 would not b" corrcict to authorize; them to judge of the rea- 
 sonableness of the charges, irn.'spective of such agreement 
 or usage ; but the court should determine whether, if proved 
 to the satisfaction of the jury, the usage is reasonable or 
 operative.'^ Exercising this power, it has been held that a 
 loCal custom that ship-owners shall be liable for the negli- 
 gence of their agents, in cases where the statute exemi)ts 
 them from liability, is unreasonable and therefore invalid.-^ 
 So, too, that evidence; of a custom that a mastcn- of a vessel in a 
 particular port has no authority to bind his owners for neces- 
 saries fuinished to the vessel, is inadmissible, as it would 
 contradict and control a settled rule of maritime law, of uni- 
 versal a[)plication.'' 
 
 In a New York case,^ in an action on a contract to deliver 
 certain railroad stock, it was held that the plaintiff would 
 not be permitted to prove that, by the general custom of 
 brokens and dealers in stocks in the city of New York, the 
 words "dividends or surulus dividends," in the contract, 
 
 ' Willcocksi;. PhillipH, 1 Wall., Jr. * BlLss v. Ropes, 9 Allen (Ma,s.s ), 
 
 (U.S.) 47. 369. 
 
 * Codman v. Armstronj?, 28 Me. * Lorabardo V. Case, 45 Barb. (N. 
 91. Y.) 205. 
 
 • Walker v. Trans., &c., Co., 3 
 "Wall. (U. S.) 15.
 
 SEC. 47.J I'AUOL EVIDENCE, RULES RELATING TO. 149 
 
 were intended to mean dividends declared on the stock, 
 whether they had been announced before or after the date 
 of the contract, provided that on the day the contract was 
 made the stock was selling in the market " dividend ou," 
 and not " ex-dividend," for the reason that effect could not 
 be given to the custom without making a new contract 
 between the parties. It was also hekl in the same casj that 
 the words "six months from date" cannot, by proof of any 
 custom, be extended or explained to mean or include " a day 
 or two before date." In a New Jersey case' it was held that 
 the holder of a check drawn upon a bank cannot avail him- 
 self of a custom l)y which banks belonging to an association 
 called the clearing hous(!, of which the drawee was one, are 
 bound to return checks presented through the clearing house, 
 and which they have no funds to pay, upon the same day, or 
 before banking hours of the next day, under penalty of being 
 liable for the same, and that the fact that the check was 
 l)resenled through the clearing house by a bank which be- 
 longed to that association, and acted as the agent of the 
 hoKier, can make no (litlcrence, as customs In derogation of 
 the conmion law nnist be strictly pleaded, and Avhen well 
 pleaded, the count must show a case clearly within the 
 usage. Therefore an allegation of a custom that when a 
 check is i)resented at the clearini^ house to a bank airainst 
 which the check is drawn, it shall be returned within a cer- 
 tain time if not paid, does not cover the case of the present- 
 ment of a check to a bank which is the airent of the bank 
 upon which it is drawn. In an action against a railroad 
 company, b}^ a person employed in repairing their road, to 
 recover for injuries received while being carried l)y them to 
 his work, the def(>ndants alleged that the plaint itf was neg- 
 ligent in riding in the baggage car. It was held that evi- 
 dence that it was the custom for such workmen to ride in 
 the baggage car was admissible.^ In an action upon a con- 
 tract to receive at a future day a certain number of barrels 
 of flour at a hxed price, evidence is not admissible to prove 
 a custom that either party to such a contract has a right to 
 
 ' Overman v. Hoboken City B'k, " O'Donnell v. AUogheny R. R. 
 30 N. J. L. Gl. ■ Co., 50 Penn. St. 490. 

 
 l'')0 EVIDENCE. [chap. II, 
 
 (U'liKUul 11 margin to l)o put 14), reasonably sufficient to 
 secure the perronnaiice of the contract.' When a special 
 contract is proved, evidence is not admissible to show a con- 
 flicting general custom. 2 In an action by the payee of a 
 note •nven for the purchase-money of a miifing claim in Cali- 
 fornia, evidence ot a custom there for the vendor to return 
 a note so •'•iveii if the claim proved unprofitable, as it did in 
 this case, is not a defense without proof that the custom wt\s 
 known to the plaintitf, and even if the custom set up had 
 lieen well established, it would be invalid because unreason- 
 able.3 Evidence of a usage with other banks organized 
 under the same law to discount more than the legal rate of 
 interest, upon the acquisition of l)usiness i)aper, is not admis- 
 sible in a suit by a bank upon the paper so discounted,* 
 because a usage in violation of a statute, or which furnishes 
 a pretext or excuse for avoiding it, is bad.^ Special usages 
 are not binding, unless known to the party sought to be 
 charged thereby. Thus, if the master of a vessel hires a 
 berth for her at a Avharf, without notice of any rule of that 
 wharf concerning the mode of discharging cargoes different 
 from the usage at similar wharves in the same port, a steve- 
 dore whom he employs to discharge his cargo may do so 
 according to such usage, and, if prevented by the wharf- 
 inger, may maintain an action against him for damages.^ So 
 in an action on a policy of insurance, evidence of a local 
 custom amongst insurers, not communicated to the insured, 
 nor of such notoriety as to afford any presumption of knowl- 
 edge on his part, is not admissible.' But in an action on a 
 policy of insurance, evidence is competent to prove a usage 
 that where there has been a ver])al agreement for insurance, 
 and the terms agreed upon and entered in the books of the 
 company, the contract for insurance is considered as valid 
 
 * Oelrichs V. Ford, 21 Md. 489. Ely, 2 Cow. (N. Y.) 678 ; Bank of 
 " Exchange Bank v. Cookman, 1 Utica v. Wager, 2 id. 712 ; Dunham 
 
 W. Va. 69 ; Detwiler v. Green, ib. v. Dey, 18 John. (N. Y.) 46. 
 
 109. • Croucher v. Wilder, 98 Mass. 
 
 = Leonard v. Peeples, 30 Ga. 61. 322. 
 
 * Niagara County Bank v. Baker, ^ Hartford Protective Ins. Co. V. 
 15 Ohio St. 68. Harmer, 2 Ohio St. 452. 
 
 * New York Fireman's Ins. Co. v.
 
 SEC. 48.] PAROL EVIDENCE, RULES RELATING TO. 151 
 
 for the insured, although the premium is not paid.i The 
 practical adoption and use, for a long time, of a particular 
 route, under a right of way granted by deed, without fixed 
 and defined limits, if acquiesced in by the grantor, operate 
 to determine the location of the way as eflectually as if the 
 same had been described in the deed, because by acquiescing 
 in the continued use of such route the owner of the land is 
 treated astlicensing that as the way granted, and the other 
 by using it is treated as electing to adopt it.a In an 
 English case the defendant chartered the plaiutifl^'s vessel to 
 proceed to Newcastle-on-Tyne, and there be ready forthwith, 
 " in regular turns of loading," to take on board by spout or 
 keel, as directed, a complete cargo of four keels of coal, and 
 the remainder coke. In an action for not loading the vessel 
 with coke within a reasonable time, it was held that evidence 
 was admissible to explain the meaning of the expression in 
 the charter party, "in regular turns of loading," by show- 
 ing that there was a usage of the port of Newcastle that ves- 
 sels should take in their cargoes of coke in a certain reoular 
 order or turn, and that the question whether the vessel was 
 loaded within a reasonable time ought not to be decided 
 without reference to such usage, if proved, ^ 
 
 Evidence of a usage in a certain town to sell lumljcr with- 
 out measuring it is admissible if the lumber to which it is 
 sought to be applied is not shown to have been brought into 
 the town by w^ater and as such required by statute to be 
 measured.^ 
 
 Sec. 48. What Usages are valid. Illustrations. 
 
 In order to be valid and binding, it is necessary that a 
 usage should be reasonable, and it has been held that it is 
 not reasonable if an honest or right-minded man would deem 
 it unfair or unrighteous.^ • It is very evident that this is a 
 
 ' Baxter v. Massasoit Ins. Co. , 13 " Lee v. Kilboume, 3 Gray (Mass.), 
 
 Allen (Mass.), 320. 594. 
 
 * Bannon v. Angier, 2 Allen ^ Paxton v. Courtney, 2 F. & F. 
 
 (Mass.), 128. 131; see Leuckhart v. Cooper, 3 
 
 " Leideman v. Schultz, 14 C. B. Scott, 521 ; 3 Bin^. N. C. 99 ; see 
 
 ^°' also Southwestern Freight, &c., Co. 
 
 V. Stanard, 44 Mo. 71.
 
 152 EVIDKNCE. [CIIAP. II. 
 
 iieccssjiry incidciit. Usages are the result of the experience 
 of mauUiiid, and have been planned with a view to their, 
 convenience. But nothing absolutely unreasonable could 
 result from the former, or tend to produce the latter. The 
 self-will of an individual might make dishonesty or nonsense 
 paramount for a day, l)ut the experience of men never could 
 consecrate what was unrighteous, their convenience and 
 comfort never could be subserved by what was»unjust or 
 unreasonable. Where evidence of a usage has been admitted, 
 therefore, evidence may be given in reply, tending to show 
 that such a supposed usage would be unreasonable.' A 
 iisasfe or custom that makes a negotiable instrument transfer- 
 able without indorsement is against the policy of the law, 
 and therefore invalid. Thus, a local custom among cotton 
 dealers making a warehouse receipt transferable by delivery 
 without indorsement, and such mere transfer to pass the title 
 to the cotton unless notice is given that a receipt has 
 been lost or got into the hands of some one not entitled 
 to hold it, was held bad,^ So a usage that no title passes 
 upon an ordinary sale and delivery — no lien being reserved by 
 contract — without actual payment of the purchase-monej', is 
 invalid.^ In the case last cited the court took occasion to 
 place the ground of invalidity upon the circumstances that 
 it was an attempt by usage to engraft terms upon a 
 contract inconsistent with the rules of common law, but 
 it would feeeni that the true ground of invalidity is the 
 circumstance that such a usage is against the policy of the 
 law. So is a usage requiring a consignee to receipt for a 
 certain quantity of property before he has had an opportunity 
 to ascertain whether the quantity named in the receipt has 
 been delivered ;* and the same is true as to a usage for 
 the master of a vessel to sell the cargo of a stranded 
 vessel without necessity ; ^ or authorizing a person to charge 
 
 ' Bottomly v. Forbes, 5 Bing-. N. * Gallup v. Ledener, 1 Hun (N. 
 
 C. 128. Y.), 282. 
 
 ' Lehman v. Marshall, 47 Ala. 362. " Bryant ?>. Conn. Ins. Co., 6 Pick. 
 
 ' Ha.skins v. "Warren, 115 Mass. (Mass.) 145; Stillman v. Hurd, 10 
 
 514. Tex. 107.
 
 SEC. 48. J PAROL EVIDENCE, RULES RELATING TO. 
 
 153 
 
 for services never rendered, or material never furnished ;' or 
 authorizing an agent to violate the instructions of his princi- 
 pal ;- exempting carriers from liability for negligence ;3 or 
 favoriiio; the violation of a statute;'* or conferring; a right of ac- 
 tion upon contracts void under the Statute of Frauds, or barred 
 by the Statute of Limitations ;^ or to transfer settlement rights 
 by death-bed donations without a will ;^ or for fsictors to pledge 
 the goods of their principal ;^ or to construe a contract for 
 articles by the ton, as calling for 2,200 pounds for a ton 
 instead of 2,000 pounds, as fixed by statute ;^ or one that is in 
 restraint of trade ;^ or that deprives a person of his property 
 without compensation, as a usage of a bank not to correct 
 mistakes in counting money unless it is discovered before the 
 party leaves the bank : "^ or that exempts a person from liabil- 
 
 ' WhitesidestJ. Meredith, 3 Teates 
 (Penn.), 318 ; Kendall v. Russell, 5 
 Dana (Ky.), 50. 
 
 « Banksdale v. Brown, 1 N. & M. 
 <S. C.) 519 ; Catlin v. Smith, 24 Vt. 
 85. 
 
 * Schooner Reeside, 2 Sum. (U. 
 S.)574. 
 
 * Dunham v. Dey, 13 John. (N. 
 Y.) 44 ; Supervisors v. Van Rief, 1 
 Hun (N. Y.), 45. 
 
 * Dunham v. Gould, 13 John. (N. 
 Y.) 367. 
 
 « Westfall V. Sing-leton, 1 Wash. 
 <Va.) 227. 
 
 ' Newbold v. Wright, 4 Rawle 
 <Penn.), 195. 
 
 * Evans v. Myers, 25 Penn. St 
 114 ; Green v. Moffat, 22 Mo. 529 
 
 « Williams v. Gilman, 3 Me. 281. 
 
 "* Gallatin v. Bradford, 1 Bibb 
 (Ky.), 207. Where a custom for the 
 inspector of flour to take to his own 
 use the draft flour, drawn out to be 
 examined, was set up, it was held 
 that it was contrary to the policy of 
 the law ; that the statute pro\dding- 
 certain fees for inspection, thereby 
 impliedly forbade all other compen- 
 sation ; that it could not be more 
 ancient than the inspection laws, 
 
 and that they were not old enough 
 to be immemorial, though beyond 
 the actual memory of those then 
 living ; that though this custom had 
 existed under the old laws, and the 
 legislature, in remodeling them, had 
 not expressly negatived the custom, 
 yet that this silence was not a legis- 
 lative recognition of it And where 
 such inspector of flour claimed that 
 he could not inspect by boring a half- 
 inch hole in the head of the barrel, 
 and that the custom allowed him to 
 use a larger auger ; the old law re- 
 quired him to inspect flour by a half- 
 inch hole, while the new code re- 
 quired all inspectors of flour, fish, 
 butter, &c., to inspect by a half-inch 
 hole or in some other satisfactory 
 manner, and required the hoops of 
 barrels offered for inspection to be 
 nailed. It was held that the code 
 did not change the method of inspec- 
 tion established by the old law, and 
 that it was no answer to a manda- 
 mus to compel the inspector to in- 
 spect a certain lot of flour by a half- 
 inch hole, that he could not so 
 inspect it properly, and that the 
 custom authorized him to use a 
 larger hole, as both the answer and
 
 154 
 
 EVIDENCE. 
 
 [chap. II. 
 
 itv where he is made lijil>le by statute, or makes him lial>le 
 where he is exempt therefrom l)y statute ;' or that peruiits a 
 persou to eoiuuiit aets of trespass upon others' property ;* or 
 permits an individual to appropriate to his exehisive use, 
 rii^hts which belong equally to all the pul)lic ;» or which per- 
 mits a person to take anything from another's land,'' or to 
 take another's i>roperty ;^ or that permits an intermediate 
 carrier to deduct from back freight carried, any deficiency 
 in the cargo as shown Ijy a c(nnparison of the bill of lading 
 with the meiuiurement of the carrier receiving it ;« or which 
 continues the liability of a carrier after his liability is dis- 
 charired by the general law -^ or which permits an agent to 
 warrant the quality of goods sold by him, although not 
 authorized to do so l)y his principal ;* or to ascertain the 
 quantity by measurement, where the articles are sold by the 
 dozen, hundred or thousand, instead of by count ;^ or any 
 
 the custom would be in contraven- 
 tion of the statute under which he 
 held his office. Dalaplaine V. Cran- 
 ghaw, 15 Gratt. (Va.) 457. 
 
 ' Walker v. Trans. Co., 3 Wall. 
 (U. S.) 150. 
 
 « Waters v. Lilly, 4 Pick. (Mass.) 
 145. 
 
 ' Freary v Cook, 14 Mass. 488. 
 
 * Perley v. Langley, 7 N. H. 233. 
 A custom to take fish, or to take 
 Band from another to make mortar 
 in alieno solo, is void. Watei-s v. 
 Lilly, ante; Lupkin v. Haskell, 3 
 Pick. (Ma.ss.) 356; Littlefield v. 
 Maxwell, 31 Me. 134. 
 
 * Wadley v. Davis, 63 Barb. (N. 
 Y.) .500. 
 
 * Strong V. G'd Trunk R. R. Co., 
 15 Mich. 206. 
 
 ' Reed v. Richardson, 98 Mass. 
 216. 
 
 * DoddtJ.Farlow.ll Allen (Mass.), 
 426. 
 
 * Sweeney v. Thomason, 9 Lea 
 (Tenn.), 359; 42 Am. Rep. 376. There 
 may be some doubt in the accuracy 
 of this doctrine, and an examina- 
 
 tion of the case will show that really 
 there was no proof of such a usage 
 as was claimed, and thei-e was di- 
 rect proof that the defendant never 
 heard of the usage, and from the 
 circumstances there was no ground 
 for a presumption that he knew of 
 it. The contract was for brick by 
 the thousand "in the wall," and the 
 usage claimed, was to ascertain the 
 number by measurement, instead of 
 by count. In Smith r. Wilson, 3 
 B. & Ad. 728, it was held that the 
 word "thousand," iised in a lease 
 in reference to i-abbits, might be 
 shown to mean twelve hundred. In 
 Sorther v. Kellerman, 18 Mo. 509, 
 proof of a usage was admitted to 
 show that two bunches of shingles 
 were regarded as one thousand, 
 without regard to the actual num- 
 ber. See also Miller v. Stevens, 
 100 Mass. 515 ; and Heald v. Coo- 
 per, 8 Mo. 32, all of which are op- 
 posed to the piincipal case. See also 
 Menick v. McNulty, 26 Mich. 374 ; 
 where it was held proper to admit 
 proof of a usage to reject fractions
 
 SEC. 49.] PAROL EVIDENCE, RULES RELATING TO. 155 
 
 custom or usage that originates in, or is continued by 
 oppression or fraud, oi- is contrary to the policy of the laws, 
 morality and religion, is void, and cannot be set up either to 
 protect rights acquired under, or to defeat rights acquired in 
 opposition to them.^ 
 
 Sec. 49. Usage as a Means for ascertaining the Meaning of Words 
 
 and Phrases. 
 
 While, generally, words are used in contracts in their 
 ordinary sense, yet it is a matter of common knowledo-e 
 that in a particular trade or business, words having a well 
 understood meaning in ordinary transactions have acquired a 
 technical sense entirely different from their ordinary sio-ni- 
 fication, so that if in that class of contracts the words were 
 to be given their ordinary interpretation, the intention of 
 the parties would be wholly subverted. So, too, there is a 
 class of words which are purely local or technical which are 
 used in a particular locality or science or trade, and very 
 often the same words which have a conmion and universal 
 meaning, also accpiire a local or technical significance, and 
 in either case evidence of usage is admissible to explain the 
 local, technical or peculiar meaning in the trade or business 
 to which the contract relates, provided sufficient is proved 
 to raise a presumi)tion that the parties intended to use the 
 words in their technical or peculiar sense, or the fact can 
 be inferred from reading the contract itself. It may be 
 stated, as a general rule, that oral evidence is always admit- 
 ted to show the sense in which, according to the custom of 
 merchants, a mercantile contract is to be understood, ^ and 
 in such cases it is unol)jectionable to ask a witness whether 
 there is any generally understood meaning of certain words 
 among persons engaged in the particular trade or business 
 
 of a foot in measurement, and usage was admitted to show that 
 
 Brooks V. Brooks, 25 Penn. St. 210 ; tied packs of shingles make 1,000. 
 
 where it was proof of a usage ^ Holmes v. Johnson, 42 Penn. St. 
 
 that where lumber is sold by the 159. 
 
 " thousand feet," lineal measui-e is " Wigglesworth v. Dallison, 1 
 
 intended, and Lorther v. Kellerman, Smith's L. C. 7i. 
 
 18 Mo. 509 ; where evidence of a
 
 15G EVIDENCE. [chap. II. 
 
 uiitlcr coii.siilcriition,' and iiulccds it would seem tlmt such 
 a (juesition must be put to the wituess belbie Ik^ is asked what 
 he understands by the written contract to which it is meant 
 to a[)ply the usage. "^ Thus the words "fur,"' "freight,"* 
 "weeks,"* " chiy,'*' "thousand,"''^ "level,"® "inhabitant,"* 
 "roots,"*" "l)uildingv"" and many other words which it would 
 not be profitable to enumerate have been interin-eted by 
 extrinsic evidence, although jirima facia they presented no 
 ami)iguity, and their peculiar meaning when I'ound in con- 
 nection with the subject-matter of the transaction has been 
 tixed by parol testimony of the sense in which they are 
 iiauaUy understood when employed in cases similar to that 
 under investigation. 
 
 A contract of hiring may be qualified by proof of cus- 
 tomary holidays ;'* a sack of hops at 100.S". may be ex})laiiied 
 to mean £5 jjer cui. ;'^ a contract for the sale of cider may 
 be explained, by local usage, to mean apple juice before it. 
 has been made into cider in its usual form.'^ So parol evi- 
 dence has l)een admitted to prove the meaning of the word 
 " privilege " in a contract between ship-owner and captain ;'^ 
 of the meaning of "mess pork" in a contract of sale ;'" of 
 the words " across the country" in a wager on a race ;'' of 
 the meaning of the word "bale," and the quantity usually 
 contained therein, in contracts for the sale of articles by the 
 bale ;'^ and, in a New Jersey case,'^ a lease of premises con- 
 
 ' Robertson v. Jackson, 2 C. B. " Livingston v. Ten Broeck, 16 id. 
 
 412. 14. 
 
 » Curtis V. Peck, 13 W. R. 230. »= Rex v. Stoke-upon-Trent, 5 Q. 
 
 • Aster V. Union Ins. Co., 7 Cow. B. .303. 
 
 (N. Y.) 202. " Spicer v. Cooper, 1 Q. B. 424. 
 
 • Peisch«. Dickson, 1 Mas. (U. S.) " Studdy v. Sanders, 5 B. & C. 
 11; Lewis v. Marshall, 7 M. & G. 628. 
 
 729. 1* Birch v. Depuyster, 4 Camp. 
 
 • Grant v. Maddox, 16 L. .J. N. S. 38JJ. 
 
 Exch. 227. " Powell v. Horton, 2 N. C. 668. 
 
 • Cochran v. Retbery, 3 Esp. 121. " Evans v. Pratt, 3 M. & G. 759. 
 ' Smith V. Wilson, 3 B. & Ad. 728. " Gorrissen v. Perrin, 2 C. B. N. 
 
 • Clayton v. Gregson, 5 Ad. & El. S. 681 ; Taylor v. Briggs, 2 C. & 
 302. p. 525. 
 
 • Rex V. Mashiter, 6 Ad. & El. 153. " Smith v. Clayton, 29 N. J. L. 
 " Coit V. Commercial Ins. Co., 7 357. 
 
 John. (N. Y.) 385. 
 
 1
 
 SEC. 49.] PAROL EVIDENCE, RULES RELATING TO. 157 
 
 tallied a provision that " slioukl the said A. sell the last- 
 mentioned lot at any time after the said C. has planted the 
 same, he shall have the privilege of sowing grain on the 
 same. The lessor having sold the land after C. had planted 
 the land, he sowed oats on the corn gromid the succeeding 
 spring, and the question was whether he was not restricted 
 to the sowing ot winter grain. The court held that evidence 
 of the meaning of the word ''grain,^^ as used in common par- 
 lance, was not admissible, but that it was the duty of the 
 court to determine its meaning. But that parol evidence of 
 the meaning of a word that is ambiguous or made so by 
 evidence, may be shown.' So usage has been admitted to 
 show what was meant by the word " team ; '"^ to show what 
 w^as meant by the words "all faults," in a contract where 
 certain property was sold " with all faults," and generally 
 where it is shown that a word has acquired a special 
 or technical meaning in a certain trade, it may be shown, 
 because it is presumed that every person conducting such 
 trade uses the language of the trade, and makes his contracts 
 in conformity with the sense in which such language is 
 therein employed.-^ And the same rule prevails where words 
 are used in a peculiar sense in a certain district or locality.* 
 The usage of a trade is admissible to fix the exact liability 
 of the parties in cases where the contract is silent in that 
 respect, and the law has fixed no definite standard. Thus, 
 
 ' See Hart v. Hammett, 18 Vt. noulds V. Jourdan, 6 Cal. 108 ; Dent 
 
 127; Patch ?). Ins. Co., 44 Vt. 481; v. Steamship Co., 49 N. Y. 320; 
 
 Collender v. Dinsmore, 55 N.Y. 204 ; Schnitzel- v. Print Works, 114 Mass. 
 
 Collins V. DriscoU, 34 Conn. 43 ; 123 ; Page v. Cole, 120 Mass. 37 ; 
 
 Avery v. Stewart, 2 Conn. 69 ; Eaton Howard v. Ins. Co., 109 Mass. 387 ; 
 
 V. Smith, 20 Pick. (Mass.) 150; WaUs Murray v. Hatch, 6 Mass. 465. 
 
 V. Bailey, 49 N. Y. 464 ; Taylor v. "" Ganson v. Madigan, 15 Wis. 144. 
 
 Sotolingo, 6 La. An. 154 ; Galena ' Whitney v. Boardman, IS Mass. 
 
 Ins. Co. V. Kupfer, 28 111. 332 ; 44 ; Carter v. Coal Co., 77 Penn. St. 
 
 Drake v. Gorce, 22 Ala. 409; Hooper 286 ; Mieghan v. Bank, 25 id. 288. 
 
 V. R. R. Co., 27 Wis. 81 ; Soutier v. * Pope v. Nickerson, 3 Story (U. 
 
 Kellerman, 18 Mo. 509 ; Johnson v. S.), 465 ; Trimble v. Vignier, 1 Bing. 
 
 Ins. Co., 39 Wis. 87 ; Fitch v. Car- (N. C.) 151 ; De La Viga v. Vianna, 1 
 
 penter, 43 Barb. (N. Y.) 50 ; Wait Br. Ad 284 ; De Wolfe v. Johnson, 
 
 «. Fairbanks, Bray (Vt.),77; Stewart 10 Wheat. (U. S.) 367; Clayton v. 
 
 V. Smith, 28 111. 397 ; Jenny Lind Greyson, 5 Ad. & El. 502 ; Aben V. 
 
 Co. V. Bower, 11 Cal. 194 ; Rey- Carson, 62 Mo. 207.
 
 158 EVIDENCE. [chap. IL 
 
 ill a colli r:ul by which A. ugi-eos to work forB. ten days, at 
 $2.50 :i day, the contract seems definite enough; but A. has 
 really worked 120 hours, and the question is, has he worked 
 moie or le^is than ten days ? If he has >vorked more than 
 that number of days, he is entitled to additional pay in the 
 pro})oitioii that the excess bears to the price per day ; if lens, 
 then B. is entitled to a proportionate deduction. The law 
 has tixed no definite standard, therefore usage is the only 
 instruiueiitality that can be brought in to solve the questioji, 
 and the courts admit it.' So to show what is meant by the 
 words " weeks," " months," etc., in a certain class of con- 
 tracts.* So, too, w here certain work, as " plastering " a 
 house, or " laying a cellar wall," etc., is to be done at so 
 much per square yard, evidence of the usage of plasterers, 
 in the locality where the contract was made, has been held 
 admissible to determine wdiether, in ascertaining the quantity, 
 tli(^ whole sides of the house should be measured as solid, or 
 whether allowances should l)e made for openings of windows 
 and doors. The courts justly hold that contracts of this 
 character are ambiguous to the extent that evidence of the 
 usa'i^e of the trade is admissible to ascertain the true method 
 of measurement and the uuml)er of yards, etc., that should 
 be paid for, provided the usage is not unreasonable.'' It may 
 be stated as a general rule, that where a word or jjkrase used 
 in a cmitract is susceptible of two or more meanings, extrinsic 
 evidence is admissible to ascei'tain in which sense it was em- 
 jploijed by the parties, and if a usage exists by which the 
 words, in the trade to which the contract relates, have 
 acquired a definite meaning, that is regarded as the real ex- 
 ponent of the true intention of the parties.^ 
 
 And in the same manner the meaning of certain phrases 
 is ascertained. Thus the phrases " coppered ship," ^ " store 
 
 * Hinton v. Locke, 5 Hill (N. Y.), C.) 121 ; Journu v. Bordieu, Park 
 437. on Ins. 245 ; Mason v. Skurry, id. 
 
 ' Grant v. Maddox, ] ft Moll. 737 ; 24.') ; Mackenzie v. Dunlop, 3 Macg-. 
 
 Jolly V. Young, 1 Esp. 186. (S. C.) 26; Buckle v. Kuook, 2 L. 
 
 ' Walls V. Bailey, 49 N. Y. 467 ; R. Exchq. 125. 
 Fordti. Tirrell, 9Gray(Mass.),401; * Hazard v. N E. Marine Ins. 
 
 Lowe V. Lehman, 15 Ohio St. 179. Co., 1 Sum. (U. S.) 218. 
 
 * Bottomley v. Forbes, 5 Bing. (N. 
 
 I
 
 SEC. 49.] PAROL EVIDENCE, RULES RELATING TO. 159 
 
 fixtures," 1 " British weight," ^ "immediate delivery, "^ ««a 
 clear bill of lading," * " warranted to depart with convoy," ^ 
 "sea litter,"^ " the tanning business,"'^ " in regular turns of 
 loading," ^ " after arrival " at a certain place, may be shown 
 to mean at a place at sea, several miles from certain ports, 
 if it be a place of ordinary anchorage.^ So where by a 
 charter party the ship-owner agreed to consign the ship to A. 
 B,, at Calcutta, "on the usual and customary terms," a cus- 
 tom may be proved for consignee to procure the homeward 
 freight on conuuission j^" but where the charter provides that 
 the consignment was to be " free of commission," and says 
 nothing of usual terms, the charterer cannot set up such 
 custom by oral evidence in an action against the ship-owner 
 for not allowing the consignee to procure the homeward 
 freight.^^ "A full and complete cargo of sugar" maybe 
 explained to mean full and complete according to the cus- 
 tomary mode of i)acking and loading sugar at the port where 
 it is loaded. '2 " In turn to deliver," may be explained by 
 local usage. '3 So the custom of the port as to when lay 
 days commence.''* "Fifty tons best palm oil, with a fair 
 allowance for inferior oil, if any," may be explained to be 
 satisfied by the delivery of fifty tons, of which the greater 
 part is inferior.'^ A contract in writing to do stone and 
 brickwork at the rate of " 3s. per superficial yard of work 9 
 inches thick, and finding all materials, deducting all lights," 
 was held not to exclude a custom in the trade to reduce all 
 brickwork for the purpose of measurement to 9 inches in 
 
 ' Whitmarsh v. Conway F. Ins. ' Lindsay v. Jauson, 4 H. & N. 
 
 Co., 16 Gray (Mass.), 359. 699. 
 
 * Goddard v. Bulver, 1 N. & M. '" Robertson v. Wait, 8 Exch. 299. 
 (S. C.) 4.5. " Phillips v. Briard, 1 H. & N. 
 
 * Nelson v. Smith, 36 N. J. L. 148. 21. 
 
 * Cheny v. Holly, 14 Wend. (N. " CuthberttJ. Cumming, 11 Exch. 
 Y.) 26 ; Barber v. firuce, 3 Conn. 9. 405. 
 
 ^ Lethutier's case, 2 Salk. 443. '^ Leidemann v. Schultz, 14 C. B. 
 
 * Sleight V. Hartshome, 2 John. 318 ; Robertson v. Jackson, 2 C. B. 
 (N. Y.) 531. 412. 
 
 ' Barger ■U.Caldwell, 2 Dana(Ky.), '* Norden Steam Co. v. Dempsey, 
 
 130. 1 C. P. D. 654. 
 
 * Schultz V. Leidman, 146 C. B. 38. '^ Lucas v. Bi-istow, E. B. & E. 
 
 907 ; 27 L. J., Q. B. 364.
 
 KiO EVIDENCE. [chap. II. 
 
 thickness.' So a contract to do certain work and to 
 deliver "a weekly account of work done" was held not 
 inconsistenl with a nsaire in the l)uilding trade, that this 
 clause iclalid not to all the work contracted to he done, but 
 to that i)irt only which was of a particular kind.^ Where 
 there Aviui a written contract for the sale of shares at a cer- 
 tain price, " for payment half in two, half in four months," 
 it was held, that evidence was admissible that the seller was 
 by usage not bound to deliver the shares mitil the appointed 
 time for payment unless the buyer chose to pay for them 
 earlier. "^ The usage of a particular port, that the under- 
 writers lire not liable for general average in respect of the 
 jettison of timber stowed on the deck, can be annexed to a 
 policy making the miderwriter liable for general average 
 without restriction."* By a bill of lading of wool, freight 
 was to 1)0 paid "at the rate of 80.«?. per t(m of 20 cwt. gross 
 weight, tallow and other goods, grain or seed, in proportion 
 as per London Baltic printed rates ; " evidence was admitted 
 to show that by the usage of the trade this meant that 80.s'. 
 per ton of 20 cwt. of tallow was to be taken as the standard 
 by which the rate of freight on all other goods Avas to be 
 measured.* The question whether a cargo "for shipment 
 in June" was satisfied by a cargo which was loaded half in 
 May and half in June, was held to l)e a question for the 
 jury.* So, on a sale of goods to be paid for in from "six 
 to eight weeks," the question of the length of credit thereby 
 allowed was left to the jury, the words, apart from usage, 
 being insensible.''' 
 
 Sec. 50. RiUe when Words have well defined Meaning. 
 
 U.saga is not admissible to contradict or vary what is plain ; ® 
 therefore, if the words employed in a written contract or in- 
 
 ' Symonds V. Floyd, 6 C. B., N. ^ Russian S. Navigation Trading- 
 
 8. 691. Co. V. Silva, 13 C. B., N. S. 610. 
 
 » Myers v. Sari, 3 E. & E. 306. * Alexander w. Vanderzee, L. R., 
 
 • Field V. Lelean, 6 H. & N. 627, 7 C. P. .530. 
 
 Ex. Ch. •' Ashford v. Redford, L. R., 9 C. 
 
 ♦ Millr-r )• T.!therington, 6 H. & P. 20. 
 
 JN. 278 ; 7 H. & N. 954. * Blackett v. Royal Exchange Ins. 
 
 Co., 2 Cr. & J. 249. 
 
 I
 
 SEC. 50.] PAROL EVIDENCE, RULES RELATING TO. 161 
 
 strument Jiave a known legal meaning^ parol evidence that 
 the parties intended to use them in some different, though 
 popular sense, will not be received, unless the worlds, if inter- 
 preted according to their strict legal accejptation^ are wholly 
 insensible either to the context or to the extrinsic facts. Thus, 
 if a word denoting weight, measure or numljer has had a 
 definite meaning attached to it by the legislature, parties 
 using the word in a contract will be conclusively presumed 
 to have used it in that sense, unless the contrary clearly 
 appears from some part of the writing itself,' or from proof 
 of a well established usage of the trade or business to which 
 the contract relates.- Thus, in the case last cited parol evi- 
 dence was admitted to show that in a contract for a certain 
 number of " barrels " of petroleum, at so much a gallon, the 
 word " barrel " means a vessel of a certain capacity, and not 
 the statutory measure of quantity, and that for this purpose 
 evidence that petroleum oil is often sold in barrels, and that 
 the barrels are usually of such certain capacity, is compe- 
 tent, as also that the barrels exhibited by the seller at the 
 time of his offer to deliver, some two months after the date 
 of the contract, were of such capacity ; also that the pur- 
 chaser, in all the discussions relating to the delivery, did not 
 suggest that the barrels were not what the contract required, 
 and was ready to receive the barrels if he had considered the 
 oil of the requisite quality. But to be admissible under such 
 circumstances, the usage must be clear, cogent and irresist- 
 ible.^ The fact that words of themselves are susceptible of 
 an interpretation apparently consistent with the intention of 
 the parties, does not exclude such proof. If the words are 
 shown to have acquired a well-known technical meaning, 
 that will be taken to be the sense in which they were used. 
 Thus, in replevin for marble retained by the carrier for the 
 costs of transportation, the question in dispute was, whether 
 marble in slabs was wrought or unwrought, the charge for 
 
 ' Henry v. Rusk, 1 Dall. (U. S.) "" Schiller v. Stevens, 100 Mass. 
 
 465 ; Frith v. Barker, 2 John. (N. 518. 
 
 Y.)335; Stower ^j. Whitman, 6 Binn. ^ Spicer v. Cooper, 1 Q. B. 424 j 
 
 (Penn.) 417. AUeg-re v. Maryland Ins. Co., 2 G. 
 
 11 
 
 & J. (Md.) 136.
 
 1G2 EVIDENCE. [ciIAr. II. 
 
 tho Ibnnor hoing more thaii tor the latter. Evidence being 
 luaril, the eourt instructed the jury "that the terms 
 ' w lought ' and ' unwrought,' as applied to marble, are 
 words of doubtriil signification, and it was coni[)etent for 
 the j)laintilf to show what meaning is given to them by cus- 
 tom and usaofe ; that such custom, in order to bind the 
 defendant, need not be universal, settled or uniform among 
 dealers and carriers. If the jury believe from the evidence 
 that the generally prevailing usage among manufacturers, 
 dealers and carriers is to class and consider marble in slabs 
 as unwrought, then the defendant can claim freight on it 
 only as of that class." It was held that the jurj^ were prop- 
 erly instructed. ^ 
 
 Whatever the courts may say as to the introduction of 
 evidence of a usa2:c that conflicts with the well settled rules 
 of law, it will be found in practice, and by a careful exami- 
 nation of the cases, that the rule exists in theory rather than 
 in practice, and that the rule is really nothing more nor less 
 than that evidence of a usage that conflicts with a well-settled 
 rule of law must he of such a character as to afford irresistible 
 evidence that the parties knew of and contracted in reference 
 to the usage rather than in reference to the rules of law, and 
 that where nothing more than mere proof of a iLsage exists, 
 and the parties^ knowledge thereof, it will he presumed that the 
 parties contracted in reference to the law rather than the 
 usage? A contrary rule would overturn a well settled rule 
 that parties may waive the provisions of the common law or 
 a statute even, and contract in direct opposition thereto, 
 unless the statute i)rohibits such a contract, or it is malum in 
 se or opposed to the policy of the law. Therefore there 
 can be no question but that in all cases where the parties may 
 expressly contract in opposition to the common law or a statute, 
 evidence of a usage may he given to show that the parties con- 
 traded in reference to it rather than in reference to the law, 
 and it is a question of fact for the jury to find whether the 
 parties did or did not intend to adopt the usage instead of 
 
 ' Bancroft v. Peters, 4 Mich. 619. 66 id. 429 ; Miller v. Stevens, ante; 
 ' Adams v. Pittsburgh Ins. Co., Overman v. Hoboken Bank, 30 N. 
 76 Penn. St. 411 ; Jones v. Wagner, J. L. 61. 
 
 I
 
 SEC. 51.] PAROL EVIDENCE, RULES RELATING TO. 163 
 
 the law.' Of course, limitations upon this rule exist, and 
 cases often arise in which the courts will adjudge the usage 
 absolutely void in itself, and it may be said, with absolute 
 certainty, that if that which is sought to be incorporated 
 into the contract by usage would be void, as an express stipu- 
 lation, the e\'ideuce would not be admissible. Therefore a 
 usage malum in se or malum prohibitum^^ or which trenches 
 upon the policy of the law, as in restraint of trade, ^ or 
 which is unreasonable, unjust, oppressive, or which sanctions 
 dishonesty, is clearlj^ void,^ and never could obtain recogni- 
 tion from the courts. 
 
 Sec. 51. Usage may add Incidents to Contracts. Illustrations. 
 
 The office of a usage is not confined to that class of cases 
 where the written instrument is expressed in ambiguous or 
 technical language, but is also admissible, in many instances, 
 to add incidents to the contract, that is, to show what things 
 are customarily treated as incidental and accessorial to the 
 principal thing, which is the subject of the contract, or to 
 which it relates, which are not inconsistent therewith.^ 
 This species of evidence is admitted upon the principle of 
 presumption that the parties did not mean to express the 
 whole of the contract in writing, but made it in reference to 
 the usage, and in such cases the usage is as much a part of 
 the contract as though it had actually been incorporated 
 therein.^ A good illustration of this rule is to be found in 
 
 ' Gorden v. Little, 8 S. & R. (Mass.) 425 ; Cooper v. Kane, 19 
 
 (Penn.) 533; Halsey v. Brown, 3 Wend. (N. Y.) 886; Leach v. 
 
 Day (Conn.), 346 ; Snowden v. "War- Beardsiee, 22 Conn. 404 ; Alabama, 
 
 der, 3 Rawle (Penn.), 101 ; Renner &c., R. R. Co. v. Kidd, 29 Ala. 221. 
 V. Bank of Columbia, 9 "Wheat. (U. * Palmer v. Kane, 5 "Wis. 265 ; 
 
 S.) 581 ; Jones v. Fales, 4 Mass. Bank of Columbia v. Fitzhugh, 1 
 
 245. H. & G. (Md.) 239 ; Harsh v. North, 
 
 " Snowden v. "Warder, 3 Rawle 40 Penn. St. 241 United States v. 
 
 (Penn.), 107. Arrendo, 6 Pet. (U. S.) 715; Stultz 
 
 ^ "Williams v. Gilman, 3 Me. 281. v. Dicky, 5 Binn. (Penn.) 287 ; 
 
 * Gallatin v. Bradford, 1 Bibb. Barber v. Bruce, 3 Conn. 9 ; Sewall 
 
 (Ky.) 209 ; Whitesides v. Meredith, v. Gibbs, 1 Hall (N. Y.), 612 ; Lud- 
 
 3 Yeates (Penn.), 318 ; Kendall v. wick v. Ohio Ins. Co., 5 Ohio, 436 ; 
 
 Russell, 5 Dana (Ky.), 501. Sampson v. Gazzam, 6 Port. (Ala.) 
 
 ' Dixon V. Dunham, 13 111. 324 ; 123. 
 Thompson v. Hamilton, 12 Pick.
 
 1G4: EVIDENCE. [C1IA1\ IK 
 
 the commercial usage, by which grace is allowed upon a 
 note or bill of exchange, payable at a certain time. Thus, a 
 note is made payable in sixty days irom date, but com- 
 mercial usage steps in antl [postpones the payment for three 
 days, making it [)ayable only in sixty-iJiree days, and, in 
 cases where this usage applies, it is so ellective, that a suit 
 brought or protest made before the lapse of the sixty-three 
 days is entirely inoperative. In these cases the parties are 
 l)resamed to contract in reference to the law as it exists at 
 the time, and the only diilerence between taking that and a 
 usage is, that the hitter is a binding law on particular per- 
 sons, places and things ; and although there are some ex- 
 ceptions, yet, in many cases, the maxim, Expressum facii, 
 cessare tacilwn, applies as well to an incident, sought to be 
 annexed to a contract by the general law, as by a special 
 custom or usage.' So, too, it may be })roved by parol that 
 it is the custom of persons emplo^'cd in particular trades, 
 under a general contract of hiring, to have certain holidays 
 in the year, and Sundays to themselves.^ So that a tenant 
 by deed is entitled to the away-going crops, although no such 
 right is reserved in the deed.^ 
 
 This rule, however, as well as in all instances in which 
 evidence of usage is received, is subject to the qualification 
 that Uie evidence must not be inconsistent with or repugnant to 
 the contract ; for otherwise it would not go to interpret, but to 
 contradict what is written.^ In order to establish an incon- 
 sistency between the written agreement and the usage or 
 custom, it is not necessary that the former should, in express 
 terms, exclude the latter, but if it can be collected from the 
 
 ' Cherry v. Holly, 14 Wend. (N. » Rex v. Stoke-upon-Trent, 5 Q. 
 
 Y.) 2G ; Aveiy v. Stewart, 2 Conn. B. 303. 
 
 69; Dana v. Fulden, 1 E. D. S (N. ' "Wigglesworth v. Dallison, 1 
 
 Y. C. P.) 403 ; Lawrence v. McGre- Doug. 210; Senior v. Armitage, 
 
 gor, 37 Penn. St. 192 ; Booi-man v. Halt. 197 ; Button v. Warren, 1 M. 
 
 Johnson, 12 Wend. (N. Y.) 566 ; & W. 466. 
 
 Wilcox V. Wood, 9 id. 349 ; Daggett * Trueman v. Loder, 11 Ad. & El. 
 
 r. Snowden, 2 Black. (U. S.) 225; 589; Holding «. Pigatt, 7 Bing 465; 
 
 Crosby v. Wyatt, 23 Me. 156 ; Fox Yates 'o. Vyca, 6 Taunt. 446 ; Clarke 
 
 •P. Parker, 44 Barb. (N. Y.) .541 ; v. Rayston, 13 M. & W. 752. 
 Foley V. Mason, 6 Md. 37.
 
 tBEC. 51.] PAROL EVIDENCE, RULES RELATING TO. 165 
 
 whole instrument, either expressly or impliedly, that the 
 parties did not mean to be governed by the usage, no evi- 
 dence respecting it can be received.^ Prima facie every con- 
 tract is to be understood as containing, in some sort, aii 
 implied reference to the general law ; but when a state of 
 facts is made out, which rebuts that presumption, and shows 
 that the parties intended to adopt a particuUir usage as the 
 rule of interpretation, the latter wil: prevail, provided it is 
 such a usage as the parties had a right to adopt. But it is 
 obvious, that where the contract itself manifests an intention^ 
 either directly or indirectly, to exclude the usage, no evidence 
 of it can be received, without overstepping the limits of 
 exposition. A custom or usage of trade is only allowable 
 as one mean to arrive at the intention, never to thwart or 
 control it. If the stipulations of a contract indicate an 
 intention in the ol)ligor, variant from the usage, then the 
 stipulations should prevail ; otherwise, an obligation may be 
 imposed contrary to the intention, though provided against 
 by the express terms of the contract.^ What will be deemed 
 such an expression of intention, inconsistent with the usage, 
 as to exclude the latter, is many times a question of consider- 
 able difficulty. The general rule is clcur ; no extrinsic evi- 
 dence of usage can be received to vary, add to, or contradict 
 the plain sense of the contract, when once properly ascer- 
 tained.^ But the application of it depends so much upon 
 particular forms of expression, and terms in the contract, 
 which may happen to strike different minds in different ways, 
 as well as upon various collateral and extrinsic circumstances, 
 that it is not extraordinary to find learned judges disagree- 
 ing somewhat on this point. That disagreement, as we have 
 
 Hutton V. "Warren, 1 M. & W. The Schooner Reeside, 2 Sum. (U. 
 
 477 ; Webb v. Plummer, 2 B. & Ad. S.) 56 ; Tiirney v. Wilson, 7 Yerg-. 
 
 746. (Tenn.) 540 ; Stoever v. "Whitman, 
 
 " KendalU). Russell, 5 Dana (Ky.), 6 Binn. (Penn.) 516; Turner v. 
 
 501, 502. See per Story, J., in Burrows, 5 Wend. (N. Y.) 541, 
 
 Schooner Reeside, 2 Sum. (U. S.) 547 ; Parsons v. Miller, 15 id. 562 ; 
 
 570. Snowden ?).Warder, 3 Rawle (Penn) , 
 
 3 Mumford v. Hallett, 1 John. 107 ; Yeates -m. Pim, 2 Marsh. (Ky.) 
 
 (N. Y.) 439 ; Rankin v. The Ameri- 141 ; Blackett v. Royal Exchange 
 
 <;an Ins. Co., 1 Hall (N. Y.), 619; Ins. Co., 2 Cr. & J. 244.
 
 1G)1 EVIDENCE. [chap. H. 
 
 scon, is most strikinirly ;ip[)iircnt in those cmscs where usage 
 has been invoked to sn[)erscdc some rule of general law. 
 Then the presumption that the parties contracted in reference 
 to the general law, must be overcome, Ijefore the usage can 
 be applied ; and very slight indications of intent, appearing 
 in the inslrinnent, have been seized upon as corroborating 
 tiiat presumption, to the extent of excluding the usage 
 altoiretlier. There are various usao^es of trade and com- 
 merce. which have been so often proved as matters of fact, 
 and have so far incorporated themselves with the general 
 law, that courts will judicially recognize them.^ But particu- 
 lar usages, such as those of which we have been speaking, 
 must l>e proved specially. And the circumstances of the 
 usage being prima facte " unreasonable," " against the gen- 
 eral law," " restricted within very narrow limits," of com- 
 paratively "recent origin," etc., etc., always come in to 
 enhance the difficulty of showing that the parties contracted 
 in reference to it, and intended to make it the law of their 
 case.* And perhaps tliis is the sense in which many cases 
 are to l)e understood, which lay down the proposition that a 
 iLsage, to be obligatory, must be certain, uniform, reasonable^ 
 and sufficiently ancient to be generally hnown.^ 
 
 When the question is of a custom or usage, and it is not 
 known to those who, from their business and connections, 
 have the best means of knowing it, ignorance of it is, in 
 some sense, positive testimony of its non-existence. Thus, 
 suppose the question to be as to the existence of a usage of 
 trade in a foreign port, according to which the rights of par- 
 ties are to be decided, and that there are two foreign wit- 
 nesses, both merchants belonging to the place and dealing in 
 
 ' Consequa v. Willings, 1 Pet. (U. C. (S. C) 9 ; Gordon x\ Little, 8 S. 
 
 S. C. C.) 230 ; Snowden v. "Warder, & R. .^535 ; Eager v. Atlas Ins. Co., 
 
 3 Rawle, 10.5; Wilcox v. Wood, 9 14 Pick. (Mass.) 143,4 ; Snowden ■». 
 
 Wend. (N. Y.) 349; United States Warder, 3 Rawle (N. Y.), 105; 
 
 w. Ilorrendo, 6 Pet. (U. S.) 715; Thomas -w. O'Hara, 1 R. Const. Ct. 
 
 Thomas ■». O'Hara, 1 Const. Ct. (S. (S. C.) 306 ; FurnisiJ. Hone, 8 Wend. 
 
 C.) 306. (N. Y.) 2G6; Allegre v. The Mary- 
 
 ' Gibson v. Culver, 17 Wend. (N. land Ins. Co., 2 G. & J. (Md.) 136. 
 Y. ) 307 ; Wilcox d. Wood, 9 id. 349 ; » Kendall «. Russell, 5 Dana (Ky.), 
 
 Middleton x\ Heyward, 2 N. & Me- 501.
 
 SEC. 52.] PAROL EVIDENCE, KULES RELATING TO. 167 
 
 the same business, one of whom testifies iu support of the 
 usage, and the other is ignorant of it, in such case it seems 
 the usage cannot be said to be proved, especially if other 
 merchants from the place are in court and not called on.^ 
 So, too, the fact that a usage has been resisted by some, and 
 those insisting upon it or others of the same class consenting 
 to a qualification or abandonment of it in consequence of 
 such resistance, is quite material on the general inquiry.^ 
 There is a distinction between inquiring of a witness for the 
 common understanding as to the import and effect of a con- 
 tract susceptible of a clear interpretation, and an inquiry 
 merely as to the custom or usage relating to such contract. 
 The former would be inadmissible, and the latter is admis- 
 sible, if at all, as a means of interpreting the sense iu which 
 the parties understood the language, while the former only 
 shows the understanding of others, which is immaterial, 
 unless it loas also the understanding of the parties,^ 
 
 Sec. 52. Riile when Ambiguity is Created by Parol Proof. 
 
 There is a class of cases, as we have seen, where evidence 
 of usage is admissiole to put a construction upon a contract, 
 in which there is no ambiguity upon its face, but where an 
 ambiguity is created by extrinsic evidence. This results 
 from the circumstance that, in the ever varying and chang- 
 ing pursuits of mankind, new terms are being devised, 
 among mechanics, manufacturers and professional men, which, 
 although they may have a well understood meaning in ordi- 
 nary transactions, yet have a peculiar and entirely difi'erent 
 meaning in the trade or business to which they relate, and 
 there can be no rational objection to the admission of parol 
 evidence of persons conversant with their technical meaning, 
 
 ' Parrott v. Thatcher, 9 Pick. ing. The counsel was proceeding- 
 
 (Mass.) 420. to read from Entick's Dictionary 
 
 ^ Kendall v. Russell, ante. when Tindal, C. J., stopped him 
 
 ^ Paull V. Lewis, 4 "Watts (Penn.), and said : " It is a question of mer- 
 
 402 ; Houghton v. Gilbert, 7 C. & cantile construction, you had better 
 
 P. 701. In this case the question lay aside your dictionary and ap- 
 
 was as to the meaning of the word peal to the knowledge of the jury, 
 
 "cargo," in reference to a ship, and for, after all, the dictionary is not 
 
 whether it included the whole load- authority."
 
 1(J8 EVIDKNCE. jCUAr. 11. 
 
 to explain them,* and, alllioiigli there are a class of cases 
 ■which hoKl that this should uot be jjeiuiitted, where the 
 iisa'^e coudicts with a statutory detiiiition,- yet the present 
 drift of authority is the other way, where the usage is not 
 malum x>^'ohibitum. If the usage is inconsistent with the 
 contract, or expressly or l)y necessary inference contradicts 
 it, it cannot be received in evidence to explain it,^ because 
 in such a ctise the effect of the usage would be to thwart, 
 rather than effectuate the intention of the parties,* and a 
 usage is never admissible to change the legal relation of the 
 parties, or defeat their intention.* 
 
 » Sleight V. Hartshoi-n, 2 John. Y.) 327; Coxe V. Heisley, 19 Penn. 
 
 (N. Y.) 542 ; MiUer v. Stevens, 100 St. 243. 
 
 Mass. 518. * Clark v. Raystour, 13 M. & W. 
 
 * Evans v. Myers, 25 Penn. St. 752 ; Willtshear v. Cottrell, 1 E. & 
 
 114 ; Green v. Moffatt, 22 Mo. 529. B. 674. 
 
 ' Thompson v. Ashton, 14 .John. ' Duguid v. Edwards, 50 Barb. 
 
 (N. Y.) 417; Robinson v. United (N. Y.)288; Lawrence ■?>. Maxwell, 
 
 States, 13 Wall. (U. S.) 3(35; Dickin- 6 Lans. (N. Y.)469; Woodruff v. 
 
 son V. Gray, 7 Allen (Mass.), 9; National Bank, 25 Wend. (N. Y.) 
 
 Wetherell v. Neilson, 20 Penn. St. 674. 
 448 ; Frith v. Barker, 2 John. (N.
 
 CHAPTER III. 
 
 PRESUMPTIONS. 
 
 SECTION. 
 
 53. Kinds of. 
 
 54. Conclusive. "What are. 
 
 55. Estoppels as Conclusive Presumptions. 
 
 56. Upon Whom Binding. 
 
 57. Estoppel against Estoppel, effect of. How made available. 
 
 58. Estoppels in pais. Equitable Estoppel. 
 
 59. Disputable Pi-esumptions. 
 
 60. Presumption from Possession of Lands. 
 
 61. Presumptions as to Title to Personal Property from Presump- 
 
 tion. 
 
 62. As to Continuance of Facts. 
 
 63. Pi'esumption of Death may be Raised by Lapse of less thau 
 
 Seven Years, when. 
 
 64. Presumption as to Survivoi-ship. 
 
 65. Presumption as to Ships not Heard from. 
 
 66. Presumption as to Accounts. 
 
 67. As to Agency. 
 
 68. As to Carriers. Negligence. 
 
 69. As to Character. 
 
 70. As to Fraud. 
 
 71. As to Damages. 
 
 72. As to Identity. 
 
 73. As to Abandonment. 
 
 74. Presumption as to a Grant. 
 
 75. Of a Conveyance. 
 
 76. From Official Acts. 
 
 77. As to Jurisdiction of Courts. 
 
 78. Regularity of Appointment of Officers. 
 
 79. As to Official Acts. 
 
 80. As to Payments. 
 
 81. As to Title. 
 
 82. Miscellaneous Presumptions. 
 
 Sec. 53. Kinds of. 
 
 Presumptions are divided into two classes, presumptions 
 of Icnv and presumptions of fact. Presumptions of law are 
 said to consist of those rules which, in certain cases, either 
 forbid or dispense with any ulterior inquiry, and are founded 
 upon either the laws of nature or the exi)erienced course of
 
 170 E^^DENCE. [CHAr. III. 
 
 Iminan conduct and affairs, and the connection usually found 
 to exist l)etween ccitain things, and are not peculiar to the 
 law, but are shared in eonnnon with other sciences. Thus 
 the presumption of a malicious intent to kill. iVoni the delib- 
 erate use of deadly weapons, and the presum})tion of aquatic 
 habits in an animal found with webbed feet, belong to the 
 same philosophy, differing only in the instance, and not in 
 the principle, of its application. The one fact being proved 
 or ascertained, the other, its uniform concomitant, is univer- 
 sally and safely presumed, and it is this uniformly experi- 
 enced connection which leads to its recognition by the law, 
 without other proof; the force of the presumption being 
 strong or weak in proportion to the universality of its expe- 
 rience. This class of presumptions are divided into two 
 classes, conclusive and disputable. 
 
 Sec. 54. Conclusive Presumptions, what are. 
 
 Conclusive, or, as they are sometimes called, imperative 
 or absolute presumptions of law are rules determining the 
 quantity of evidence requisite to support any particular aver- 
 ment which is not permitted to be overcome by any proof that 
 the fact is otherwise. They consist chiefly of those cases in 
 which the long-experienced connection l)efore alluded to has 
 been found so general and uniform a-s to render it expedient 
 for the common good that this connection should be taken 
 to be inseparable and universal, and they have been taken 
 by common consent, from motives of public policy, for the 
 sake of greater certainty and the promotion of peace and 
 quiet in the community; and for this reason all corrobora- 
 tive proof is dispensed with and all opposition lbrl)idden.' 
 
 Belonging to this class of presumptions are those arising 
 under statutes, as of payment, under the Statute of Limita- 
 tions, after the lapse of the statutory period ; or of a grant, 
 after the requisite user, of a right or possession of lands, etc. 
 But ])y far the larger class of this species of presumptions 
 arise under the common law ; as, that every person above the 
 ^9^ of fourteen years is acquainted with the laiv ;^ also that 
 
 ' Taylor on Ev. 64, 65. "" 1 Hale, 42 ; Rex v. Esop, 7 C. & 
 
 P. 456.
 
 SEC. 54.] PEESUMPTIONS. 171 
 
 every sane person is conclusively presumed to contemplate the 
 natural and 'probable consequences of his acts, and this rule 
 prevails both in criminal^ and in civil cases.^ So also con- 
 clusive presumptions are raised that the records of courts 
 have been correctly made ;3 that a party to the record was 
 interested in the suit ;* that all the facts essential to sustain 
 a verdict were found, although not stated in the record.* 
 So, too, after twenty years it will be presumed in favor of 
 all judicial tribunals that all persons concerned had due 
 notice of its proceedings.^ So, also, it is conclusively pre- 
 sumed that a principal is possessed of knowledge of all facts re- 
 lating to a transaction which his agent acquired while engaged 
 in it for the princijial.''' So, too, the law conclusively pre- 
 sumes in favor of legitimacy, unless it is shown that the hus- 
 band and wife did not cohabit, or that he was impotent f and 
 the proof of non-access or impotency must be irresistible, even 
 though the parties are living apart,^ or the woman is living in 
 notorious adultery.^" But while the parties are divorced a 
 mensa et thoro, children born during separation are presumed 
 to be illegitimate.^^ So, too, an infant under the age of seven 
 years is conclusively presumed to be incapable of conuuitting 
 a crime for want of discretion ;^^ and under fourteen jears, a 
 male infant is presumed, on the ground of impotency, to be 
 incapable of committing rape," or even of committing an 
 assault with intent to commit a rape.^'* A female under ten 
 
 * Rex V. Hunt, 1 Moo. C. C. 93 ; ' Fairfield Savings Bank v. Chase, 
 Rex V. Dixon, 3 M. & S. 15 ; Rex v. 72 Me. 226 ; Willey v. Knig-ht, 27 
 Jones, 9 C. & P. 260. Ala. 336. 
 
 ^ Haine v. Wilson, 9 B. & C. 643 ; ^ Cope v. Cope, 1 M. & R. 269 ; 
 
 Baylis v. Lawi'ence, 11 Ad. & El. Morris v. Davies, 3 C. & P. 215. 
 925 ; Pontifex v. Bignold, 3 M. & G. " Cope v. Cope, ante. 
 63 ; Tapp v. Lee, 3 B. & P. 371 ; '» Rex v. Mansfield, 1 Q. B. 444. 
 Foster v. Charles, 6 Bing. 396. " St. Georg-e v St. Margaret, 1 
 
 ^ Reed v. Jackson, 1 East, 355. Salk. 123. 
 
 * Stein V. Bowman, 13 Pet. (U. S.) 'M Hale, 147 ; 4 Bl. Com. 23. 
 309. -3 Rex V. Jordan, 9 C. & P. 118 ; 
 
 " Jackson v. Pecked, 1 M. & S. 1 Hale, 630 ; Rex v. Groombridge, 
 
 237 ; Harris v. Goodwyn, 2 M. & G. 7 C. &. P. 582. 
 
 405 ; Spieres v. Parker, 1 T. R. 141 ; " Rex v. Phillips, 8 C. & P. 736 ; 
 
 Davis V. Black, 1 Q. B. 911. Rex v. Eldershaw, 3 id. 396. 
 
 * Brown v. Wood, 17 Mass. 68; 
 Ferrer's Case, 6 Coke, 7.
 
 172 EVIDENCE. [chap. III. 
 
 ycui-s of age is presumed to be iiicupablo of consenting to 
 sexual intercourse.^ So, after the lapse of thirty years, it 
 will be presumed that executors and other officers, selling 
 lands as such, observed all the necessary legal formalities.'* 
 But this presumption does not extend beyond the inter- 
 mediate proceedings. The license to sell, as well as the official 
 character, being matters of record, should generally be proved.^ 
 Nor does this presumption extend to records and public 
 documents which are su[)posed always to remain in the 
 custody of certain officers charged with their preservation, 
 and which, therefore, must be proved, or their loss accounted 
 for by secondary evidence;'* nor in cases of prescription.^ 
 The same principle applies to the proof of the execution 
 of wills and ancient deeds, and where these instruments are 
 thirty years old and free from any alterations, they prove 
 themselves ; the bare production thereof is sufficient, as the 
 subscribing witnesses are presumed to be dead ; and the rule 
 is not chanjred. even thouo;h it is shown that the witnesses 
 are living,® or even actually in court ;^ nor, in the case of 
 wills, by showing that the testator died within the thirty 
 years.® But it must be shown that the instrument comes 
 from such custody as, though not strictly proper in point of 
 law. is sufficient to raise a reasonable presumption of its 
 genuineness,'' and is otherwise free from suspicion.'" The 
 same rule extends to letters,^' certificates,'^ receipts,'^ and all 
 other written documents, and if the conditions before stated 
 «xist, neither the signature nor handwriting need be proved.'^ 
 It is questionable whether this rule applies to an instrument 
 
 ' 1 Rugs, C. & M. 693. ■^ Marsh v. Colnett, 2 Esp. 666. 
 
 ' Colman v. Anderson, 10 Mass. " Doe v. Wooley, 8 B. & C. 22. 
 
 105 ; Society, &c., v. Wheeler, 1 N. ° Meath v. Winchester, 3 Bing. 
 
 H. 310; Pejepscot v. Ransom, 14 (N. C.) 200; Doe v. Samples, 8 Ad. 
 
 Mass. 145. & El. 151. 
 
 ' 2 Ersk. Inst. 783. '■» Roe v. Rawlings, 7 East, 291. 
 
 * Hathaway v. Clark, 5 Pick. " Bere v. Ward, 2 Ph. Ev. 204 ; 
 
 (Mass.) 490 ; Brunswick v. M'Kean, Doe v. Buyon, 12 Ad. & El. 431. 
 
 4 Me. 508. " ^^^ ^ Ryton, 5 T. R. 259. 
 
 ' Mayor of Kingston v. Homer, 1 '= Bertie?). Beaumont, 2 Price, 308. 
 
 Camj). 215 ; Eldredge v. Knatt, 1 " Wynne v. Tyrwhitt, 4 B. & Ad. 
 
 id. 215. 377. 
 
 ' Doe V. Burdett, 4 Ad. & El. 19.
 
 SEC. 56.] PRESUMPTIONS. 17S 
 
 bearing the seal of a court or of a corporation, " because," 
 as was said by Lord Tenterden,^ " altliough the witnesses 
 to a private deed, or persons acquainted with a private seal, 
 may be supposed to be dead, or not capable of being ac- 
 counted for after such a lapse of time, yet the seals of courts 
 and of corporations, being of a permanent character, may 
 be proved by persons at any distance of time from the date 
 of the instrument to which they are affixed." 
 
 Sec. 55. Estoppels as Presumptions. 
 
 So, too, estoppels are ranked with conclusive presump- 
 tions, and are divided into three classes : estoppels hy deed, 
 by record, and in pais.^ Estoppels by deed and by record 
 will be discussed under their respective heads. A man is said 
 to be estopped when he has done or permitted some act which 
 the policy of the law will not permit him to gainsay or 
 deny ; and although it is sometimes said that estoppels are 
 odious, yet, they are generally neither unjust nor al)surd, but 
 founded upon the plainest principles of equity and inoraHty,'' 
 and their foundation is laid in the obligation which every 
 man is under, to speak and act according to the truth of the 
 case, and in the policy of the law to prevent the mischiefs 
 which would result from uncertainty, confusion and want of 
 confidence in the intercourse of men if they were permitted 
 to deny that which they have deliberately and solemnly 
 asserted and received as true. But this doctrine is guarded 
 with great strictness, and to be operative must be precise and 
 clear and certain to every intent,'* and mutual.* 
 
 Sec. 56. Upon Whom Binding. 
 
 They are only binding upon the parties and their privies, 
 and can only be taken advantage of by those who are bound 
 
 ^ In Rex V. Bothwick, 2 B. & Ad. Conn. 409 ; Lajoye v. Primm, 3 Mo. 
 
 648. 529; Balling- v. Mayor, 3 Rand. 
 
 "" Co. Litt. 352a. (Va.) 563. 
 
 ^ Taunton, J., in Bowman IJ. Tay- * Lansing -w. Montgomery, 2 John, 
 
 lor, 2 Ad. & El. 291. (N. Y.) 382 ; Schumann v. Garratt, 
 
 * Garner u Jackson, 4 Pet. (U.S.) 16 Gal. 100; Longwell v. Bentley, 
 
 83 ; and not dependent upon doubt- 3 Grant (Penn.) Gas. 177. 
 ful inference. Rich v. Atwater, 16
 
 174 
 
 EVIDEN'CE. 
 
 [chap. in. 
 
 bv them.' Corponitioiiri arc Ijouiid by them as well as 
 iiulividiuils.'-' But it does not iipply to the sovcreigii,^ 
 allhoiiirh it h;is been held that a State may l)c estopi)ed by 
 the aets of its k'gislatiae, ' and a resolve of the legislature, 
 lixin<T^ the boundaries of certain lands, has been held sufficient 
 to estop the State from denying theui.^ And where the 
 State has granted lauds to au alien, it has been held to be 
 estopped by its owu deed from setting up the alienage of the 
 jrrantee in avoidance of its deed.^ 
 
 Sec. 57. Estoppel against an Estoppel, Effect of; How may be made 
 
 Available. 
 
 An estoppel against an estoppel sets the matter at large,''' 
 and if evidence is offered of facts which the party is estopped 
 from proving, and no objection is made, the estoppel is 
 waived.^ A party relying on an estoppel must plead it if he 
 has an ojjporlunili/ to do so, otherwise it may be given in 
 evidence under the general issue.^ And if a party neglects 
 to take advantage of an estoppel by plea or demurrer 
 when he has an opportunity to do so, the estoppel is deemed 
 to be waived.^" 
 
 ' Griggs V. Smith, 12 N. J. L. 22 ; 
 Griffun V. Richardson, 11 Ired. (N. 
 C.) L. 439 ; Langer v. Fitton, 1 
 Rawle (Penn.), 141; Williams v. 
 Chandler, 25 Tex. 4 ; Worcester v. 
 Green, 2 Pick. (Ma.'^s.) 42.5. That 
 i.s, privies in blood, by estate and 
 in law. Co. Litt. 352 a ; Measure 
 V. NoV>le, 11 III. 531 ; Miles ^^. Miles, 
 8 W. & S. (Penn.) 135; Deevy v. 
 Cray, 5 Wall. (U. S.) 795 ; NutweU 
 V. Tongue, 22 Md. 419 ; Langaton v. 
 McKinue, 2 Muiph. (N. C.) 67. 
 
 ' Selma, &c., R. R. Co. v. Tipton, 
 
 5 Ala. 787 ; Hale v. Union M. F. 
 Ins. Co., 32 N. H. 295 ; Little Rock 
 
 6 Napoleon R. R. Co. i\ Little 
 
 Rock & Miss. R. R. Co., 36 Ark. 
 663. 
 
 • Taylor v. Shuford, 4 Hawkes 
 
 (N. C), 116; Wallace v. Maxwell, 
 
 10 Ired. (N. C.) L. 110 ; Johnson v. 
 United States, 5 Mas. (U. S.) 525. 
 
 ♦ Enfield v. Permit, 5 N. H. 280. 
 
 * Com V. Pejepscot, 10 Mass. 155. 
 
 • Com. V. Audre, 3 Pick. (Mass.) 
 324. 
 
 ' Cai-penter v. Thompson, 3 N. H. 
 204 ; Dausen v. Johnson, 13 N. J. L. 
 264. 
 
 * Hanson v. Buckney, 4 Dana 
 (Ky.), 251. 
 
 ' Howard v. Mitchell, 14 Ma-ss. 
 241 ; Lord v. Bigelow, 8 Vt. 461 ; 
 Isaacs V. Clark, 12 Vt. 692 ; McMair 
 V. O'Fallow, 8 Mo. 188 ; Woodhaven 
 V. Williams, 3 Dev. (N. C.) L. 508, 
 
 " Bnnsmaid v. Mage, 9 Vt. 31 ; 
 Burdet v. Burdet, 2 A. & R. Mar. 
 (Ky.) 143; Keel V. Ogden, 3 Dana 
 (Ky.), 103.
 
 SEC. 58.] 
 
 PRESUMPTIONS. 
 
 175 
 
 Sec. 58. Estoppels in pais. Equitable Estoppels. 
 
 Estoppels in pais arc those wliich are not included in those 
 by deed or record, whether they appear upon the face of a 
 written instrument, or result from some act or omission of 
 the party, inducing another party to act upon the faith of 
 such acts or omissions to act, so as injuriously to affect his 
 previous position.^ Thus, if the maker of a note declares it 
 to be "good" to a person who is about to purchase it, or 
 stands by in silence when it is about to be transferred to a 
 third person, he is thereby estopped from setting up any 
 defense to the note which existed at that time, of which he 
 was, or oug-ht to have been, cooi:nizant.^ So it has been held 
 that a mortgagor, who represents to a person who is about 
 to take an assignment of it, that it is " all right," is estopped 
 thereby from setting up the defense of usury, or denying 
 the amount stated to be due thereon, in its inception.^ So 
 where property is by the owner put into the hands of a third 
 person to be sold as his own, the real owner is estopped from 
 setting up his ownership thereof to the prejudice of a pur- 
 chaser from such third person, and, it seems, against a 
 creditor of such third person who has attached it upon the 
 faith of a representation to him, by such third person, that 
 
 Roe V. Jerome, 18 Conn. 138 ; 
 "WTiite V. Langdon, 30 Vt. 599 ; Al- 
 len V. "Winston, 1 Rand. (Va.) 65; 
 Laski V. Goodman, 18 La. An. 294 ; 
 Bowen v. Buck, 28 Vt. 308 ; Preston 
 V. Mann, 25 Conn. 118 ; Garrison v. 
 Garrison, 29 N. J. L. 153 ; Forsyth 
 V. Day, 46 Me. 176 ; Wyman v. Per- 
 kins, 39 N. H. 218 ; Cook v. Fink- 
 ler, 9 Mich. 131 ; Rigney v. Smith, 
 39 Barb. (N. Y.) 383; Cocke v. 
 Kuykendall, 41 Miss. 65 ; Reigard 
 V. McNiel, 38 111. 400; Brown v. 
 Wright, 17 Ark. 9; Crout v. De 
 Wolf, 1 R. I. 393. 
 
 ' Watson V. McLaren, 19 Wend. 
 <N. Y.) 557 ; Crout v. De Wolf, 1 R. 
 I. 393 ; Cloud -w. Whiting, 38 Ala. 57 ; 
 Drake v. Foster, 28 id. 649 ; Power 
 V. Pinkerton, 1 E. D. S. (N. Y. C. 
 P.) 30 ; Preston v. Mann, 25 Conn. 
 
 118; Vanderpool v, Blake, 28 Ind. 
 130 ; Bank of Genesee v. Patchin 
 Bank, 13 N. Y. 309 ; Smith v. Stone, 
 17 B. Mon. (Ky.) 1G8 ; Reed v. Van- 
 cleeve, 27 N. J. L. 352 ; BUss v. Rol- 
 lins, 6 Vt. 529. So, if a note is made 
 payable at a particular bank, the 
 maker is thereby estoiDjDed from de- 
 nying the existence of such bank. 
 Hall V. Harris, 16 Ind. 180 ; Depeur 
 V. Bank of Limestone, 1 J. J. Mar. 
 (Ky.) 378. So, if he gives a note 
 payable to a particular corporation, 
 he is estopped from denying that 
 there is such a corporation. Con- 
 gregational Society v. Perry, 6 N. 
 H. 164. 
 
 * Cary v. Wheeler, 14 Wis, 281 ; 
 ManiJ. Howland, 20 Wis. 282 ; Smith 
 V. Newton, 38 111. 230.
 
 17() EVIDENCE. [chap. III. 
 
 llu' properly was his.* But it must bo rcnicmbcrod thiit no 
 t'.stoiJpel ill rolutioii to real estate cim be creattd by verbal 
 contracts or admissions.^ Enough has l)ccu said to ilhistrate 
 generally what amounts to an estoppel in ^ja/*-, and to show 
 what nuist be proved to establish such an estoppel, to wit: 1st. 
 That the party sought to be estopped made the representa- 
 tion or admission, or did the act, or omitted to do it, upon 
 Avhich tiio estoppel is based. 2d. That the part}' setting up 
 the estoppel Avas induced to act, or to omit to act, upon the 
 faith of such matters,^ and, cither that the party sought to 
 be estop])cd intended to mislead the otJier, or was guilty of 
 such culpable negligence as mai/ he regarded cw amounting to 
 an intention to tnislead^ 
 
 So, too, it must appear that the party seeking to avail 
 himself of the estoppel is himself bound to the exercise of 
 good faith, and nmst show that he acted promptly, influenced 
 by a belief iu the truth of the matter represented, and will 
 be prejudiced if the representations are allowed to be dis- 
 puted. The act must l)e the immediate or proximate result 
 of the representation, as, unless induced by belief therein 
 to alter his position, the opposite party cannot be concluded 
 from averring a different state of affairs. The first act, after 
 hearing the words or witnessing the conduct upon which the 
 alleged estoppel is founded, is the test of the party's belief 
 in the truth of the representation ; and when the act evinces 
 a disbelief, no estoppel can thereafter be claimed.^ It nuist 
 also ap])ear that the person sought to be estop[)ed had legal 
 capacity to contract ; consequently an infant, or married 
 woman, ^ arc not at law estopped, except as to matters rela- 
 tive to which they can make a binding contract.' 
 
 ' Drew V. Kimball, 48 N. II. 282. rison v. Weaver, ante ; Steele v. 
 
 ' Gerrish v. Proprietors of Union Putney, 15 Me. 327. 
 
 "Whai-f, 2G Me. 384 ; Hamlin ■». Ham- * Andrews v. ^tna Life Ins. Co., 
 
 lin, 19i(l. 141. 85 N. Y. 334. 
 
 * Ilolser 1). McGrath, 52 Penn. St. • Innis v. Templeton, 95 Penn. St. 
 531 ; Austin v. Thompson, 45 N. H. 2G4. 
 
 113 ; Morton v. Hodgdon, 32 Me. ' See Patterson v. Lawrence, 90 
 
 127 ; Morrison ?>. Weaver, 16 Ind. Bl. 104 ; 32 Am. Rep. 22, as to the 
 
 844 ; Windle v. County, 21 id. 248. rule in equity where the acts amount 
 
 * Tayl ir v. Ely, 25 Conn. 250; to fraud. 
 Combs V. Cooper, 5 Minn. 254 ; Mor-
 
 SEC. 60.] PRESUMPTIONS. 177 
 
 Sec. 59. Disputable Presumptions of Law. 
 
 Disputable presumptions, like the former, are founded 
 upon the general experience of mankind of a connection 
 between certain facts or things, and the production of certain 
 results therefrom. But, while in the case of the former, the 
 connection is supposed to be invariable, yet in the latter, 
 while the connection is usuallij invariable, yet, it is not 
 always so, therefore while, if there is no proof to the con- 
 trary, courts will act upon it, yet it is open to proof that in 
 a particular case, the connection does not exist and therefore 
 the presumption fails. Thus, it is, in all criminal cases 
 because people do not generally commit crimes, it is pre- 
 sumed that a person charged with a crime, is innocent, but, 
 as human experience has demonstrated that this is not 
 always the case, proof is admissible to overcome the pre- 
 sumption, and from this arises the invariable rule that a 
 person charged with a crime, is presumed to be innocent 
 until proved to be guilty. So, too, it is presumed that a 
 bond, mortgage or specialty of any description is paid, after 
 the lapse of twenty years from the date of its maturity, but 
 this is a mere presumption of fact which may be overcome 
 by proof that payment thereof has not in fact been made, 
 because experience demonstrates that people do not always 
 enforce their rights on the one hand, or discharge their 
 obligations U])on the other, within that period. And gener- 
 ally, where, from a given state of facts, certain results usu- 
 ally ensue, it will be presumed that they do ensue ; but this 
 class of presumptions are only jprima facie, in other words 
 presumptions of fact, which may always, if possible, be over- 
 come by proof that in the particular case they did not ensue. 
 
 Sec. 60. Presumption arising from Possession of Lands. 
 
 As men usually own the property they possess, mere proof 
 of possession is prima facie proof of ownership,^ and this 
 applies both to personal and real estate, and possession of the 
 latter raises a presumption of a seizin in fee,^ and in the case 
 
 ' Webb V. Fox, 7 T. R. 397 ; Sul- ' Jayne v. Price, 5 Tiiunt. 326 ; 
 ton V. Buck, 2 Taunt. 302 ; Robert- Doe v. Coulthred, 7 Ad. & El. 239 ; 
 son V. French, 4 East, 130. Doe v. Peofield, 8 C. & P. 537. 
 
 12
 
 17,S EVIDENCE. [CIIAP. III. 
 
 of :i mci-e trespasser this prosuinptioii is coiK-liisive.^ Aud 
 ill ejectment, although it is an intlexible rule that the plain- 
 till" must recover by the strength of his own superior title, 
 yet proof of possession of the land, for however short a 
 time, is jmma fade evidence of title against a wrong-doer,* 
 provided the plaintiff had pos^jession at the very time when 
 the disturbance occurred, and that he has suffered a real dis- 
 turbance either in fact or at law.^ Thus, in an English case,' 
 the lessor of the plaintiff proved that he had formerly held 
 possession for over twenty-three years, and during that time 
 had received aud increased the rent, and it was held that the 
 defendant could not rebut the presumption of a seizin in fee 
 arising from these unequivocal acts of ownership, Ijy show- 
 ing that he, himself, had subsequently been in possession for 
 a period less than twenty years, for the presumption being 
 thus met by a presumption, the defendant was bound to 
 establish a title of a higher description or the plaintiff's title 
 must prevail. In some cases, it is held that it will be pre- 
 sumed that the fee simple of the land will carry with it the 
 minerals,^ but this presumption is not universal, because, in 
 mining districts, the right to the minerals and the fee simple 
 to the soil are in different persons ; consequently this pre- 
 sumption may be rebutted by showing either an absence of 
 enjoyment of the minerals by the owner of the soil, or an 
 actual use of the minerals by a stranger.^ The value of the 
 presumption of title arising from possession, depends largely 
 
 » Elliott V. Kemp, 7 M. & W. 312. v. Morrison, 11 Mo. 3 ; Smoat v. 
 
 " Hoey V. Furman, I Penn. St. Lecolt, 1 Stew. (Ala.) 590; Den v. 
 
 295; Asher v. Whitelock, L. R., 1 Sinnickson, 9 N. J. L. 149; Jackson 
 
 Q. B. 1; Doe v. Dyehall, 3 C. & P. v. Harder, 4 John. (N. Y.) 202; 
 
 610; Hutchinson v. Perley, 4 Cal. Watkins ?;. Woolfalk, 5 Ga. 261. 
 93. But the possession must be ^ Lane v. Gould, 10 Barb. (N. Y.) 
 
 actual, Bord v. Rollings, 30 Cal. 254 ; Millard v. Richard, 13 La. An. 
 
 408, and must be clearly defined so 572 ; Owen v. Fowler, 24 Cal. 192. 
 as to give the possessor exclusive * Doe v. Coake, 7 Bing. 346. 
 possession. A mere scrambling pos- ^ Hodkinson v. Fletcher, 3 Doug. 
 
 session is not sufficient. Page v. 31. So also as to the subjacent 
 
 O'Bi-ien, 36 Cal. 559. The rule may strata. Keyse v. Powell, 2 E. & B. 
 
 be said to be that a prior possession 132 ; Smith v. Lloyd, 9 Exch. 562. 
 of less than twenty years will pre- * Rome v. Grenfel, Ry. & M. 396 ; 
 
 vail against a subsequent possession Rome v. Brenton, 8 B. & C. 737. 
 for less than twenty years. Crockett
 
 SEC. 61.] PRESUMPTIONS. 179 
 
 by proof of uninterrupted enjoyment /or a long time^ and in 
 one case eight years ^ and in another seven years ^ were held 
 sufficient. Where, however, the plaintiff' relics upon a title by 
 adverse possession, nothing short of an uninterrupted adverse 
 occupancy for the entire statutory period will suffice ;^ but 
 when, as he may do, he rests his case upon the common law 
 presumption, or a lost grant, a possession for a period less than 
 that fixed by statute will, when coupled with other circum- 
 stances, warrant a verdict in his favor.^ And, generally, 
 where rights have been peaceably exercised in a particular 
 manner for a long time, it is only reasonable to presume that 
 they had a legal origin.^ 
 
 In an action for an injury to a reversion, proof of a 
 receipt of the rent of the premises by the plaintiff, will, 
 unless the annual sum is so small as to raise the presump- 
 tion that it is a mere quit rent, be sufficient evidence of his 
 title to the reversion, except as against the real oiuner and 
 those claimins: under him.^ 
 
 Sec. 61. Presiunption as to Title to Personal Property from Possession. 
 
 It is well settled that prior actual possession of chattels, 
 without title, is good as against a trespasser who has no better 
 right (' and in an action either of trover or trespass for 
 chattels, it is sufficient if the plaintiff", as against the 
 defendant, has the better right to the possession of the prop- 
 erty, although he has no actual title thereto,® as in this class 
 of actions the right to recover depends upon the right to the 
 
 ' Jackson v. Harder, 4 John. (N. * Daintry^). Bracklehurst, 3Exch. 
 
 Y.) 202. 207; Doe v. Johnson, Gaw. 173; 
 
 » Watkins-w. Woolfalks, 5Ga. 261. Reynolds v. Reynolds, 12 Ir. Eq. 
 
 ' Lame v. Carpenter, 6 Exch. 172. 
 
 825; Eldredge v. Knott, 1 Cowp. '' Knapp ■«. "Winchester, 11 Vt. 351 ; 
 
 214. Cook V. Patterson, 35 Ala. 102; Coffin 
 
 * Hunmer V. Chance, 4 DeG., J. & v. Anderson, 4 Blackf. (Ind.) 395 ; 
 
 S. 625 ; Bright v. Walker, 1 C, M. Carter v. Bennett, 4 Fla. 283. 
 
 & R. 222. « Jones v. Sinclair, 2 N. H. 319 ; 
 
 ^ Rex V. Powell, 3 E. & B. 877; Burton -y.Taunchill, 6 Blackf. (Ind.) 
 
 Mayor of Hull v. Horner, 1 Camp. 470 ; Fairbanks v. Phelps, 22 Pick. 
 
 110. (Mass.) 535; Grady v. Newby, 6 
 
 Blackf. (Ind.) 442.
 
 180 
 
 KVIDEN'CE. 
 
 [chap. Ill, 
 
 posstAHion at the time of conversion.' But as these niattei-s 
 will he treated under tlie head of Conversion and Trespass, 
 it will not be advisiible to pui-sue the matter further in this 
 place. 
 
 Sec. 62. Continuance of Fact. 
 
 A state of relations between parties once proved to exist, 
 is presumed to continue until the contrary is shown ;* and if 
 the>e relations are showri to have existed inider certain con- 
 ditions, they are presumed to exist under the same condi- 
 tions.3 Thus, while it will not be j^resumed that a woman 
 is married yet, when her coverture is once established, it will 
 be presumed to continue until the contrary is shown.-* So 
 if a person is shown to have entered into the service of 
 another under a certain contract, it will be presumed that 
 all future services are continued under such contract, how- 
 ever long continued, unless a new contract is shown to have 
 been subsequently made,^ and he must sue upon the contract 
 and not u[)on a quantum meruit.^ 
 
 So generally, where a state of aflairs or of matters of fact 
 are shown once to have existed, the presumption is that they 
 still exists Thus, if a vessel is proved to have been sea- 
 worthy when a policy attached thereto, it Avill be presumed 
 that she continued so during the whole time of the risk.^ So 
 it a state of Avar in a certain country is shown to have 
 
 ' Clark r. Draper, 19 N. H. 419 ; 
 Ames p. Palmer, 42 Me. 197 ; Cald- 
 well V. Cowan, 9 Yerg. (Tenn.) 262. 
 
 * Eames v. Eame.s, 41 N. H. 177; 
 Ho<m1 r. Hood, 2 Gi-ant'.s Cas. (Penn.) 
 229 ; Montgomeiy Plank Road Co. 
 T. Webb, 27 Ala. 618; Mullin v. 
 Prj-or, 12 Mo. 307 ; People v. Mc- 
 Leod. 1 Hill (N. Y.), 377. 
 
 ' GeLston v. Hoyt, 1 John. (N.Y.) 
 Ch. 54.3. 
 
 * Erskine r. DaA-is, 25 111. 2.')1. 
 
 * Edringlon p. Leach, 34 Tex. 285; 
 ■Wf>od's Ma.'stPi- and Ser%ant, 192 ; 
 Vail t. Jersey Little Falls M'f'g Co., 
 
 32 Barb. (N. Y.) 564 ; Nicholson v. 
 Patchin, 5 Cal. 474; Wallace v. 
 Floyd, 29 Penn. St. 184 ; Ranck v. 
 Albright, 36 id. 307. 
 
 * Nicholson v. Patchin, ante. 
 
 ' Fan V. Paj-ne, 40 Vt. 615 ; Bell v. 
 Young, 1 Grant's Cas. (Penn.) 175; 
 BroAvn v. Bumham, 28 Me. 38; 
 O'Niel V. New York, &c., Mining 
 Co., 3 Nev. 141 ; BroAvn v. King, 5 
 Met. (Mass.) 173. 
 
 * Wiight V. Orient, &c., Ins. Co., 
 6 Bo.s. (N. Y.) 269 ; Martin v. Fish- 
 ing Ins. Co., 20 Pick. (Mass.) 389.
 
 SEC. 62.] 
 
 PRESUMPTIONS. 
 
 181 
 
 existed three years ago, it will be presumed still to exist ;^ or 
 if a person is proved to have been insane at a former period, 
 it will be presumed that he continues so,^ unless it is shown 
 that such insanity was produced by some violent disease.^ So if 
 a decree in chancery is shown to have been made, it will be pre- 
 sumed that it continued in force unless it is shown to have 
 been annulled, reversed or set aside.^ So where a partner- 
 ship, agency, tenancy, or other similar relation is shown to 
 have once existed, it will be presumed to continue until it is 
 proved to have been dissolved,^ and it is upon this principle 
 that, where a person is shown to have permitted a servant 
 or mistress to order goods upon his credit upon several occa- 
 sions, he will be liable for goods so ordered after the relation 
 has in fact been terminated, unless notice to the tradesman 
 not to furnish them upon his credit has been given.'' So 
 where a certain custom was found to have existed in 1689, 
 it was held that it would be presumed that it existed in 
 1840.''^ So, where an infant son is shown to have resided 
 with his parents, it will be presumed that he continued un- 
 emancipated, as in the days of his infancy, although he long 
 since arrived at manhood, iniless there is some evidence to 
 rebut this presumption ;® and in an action to cancel a deed 
 
 ' Covert V. Gray, 34 How. Pr. (N. 
 Y.) 4.^0. 
 
 * Sprague v. Duel, 1 Clarke (N. 
 Y.), 90 ; Ripley v. Babcock, 13 Wis. 
 42.T ; Litlaw v. Litlaw, 54 Penn. St. 
 216; Saxon v. Whittaker, 30 Ala. 
 237 ; Breed v. Pratt, IS Pick. (Mass.) 
 115 ; Smith v. Tibbitt, L. R., 1 P. D. 
 398 ; Att'y-Gren'l v. Paruthers, 3 Br. 
 C. C. 443 ; Hassord v. Smith, L. R., 6 
 Eq. 429 ; Grimani v. Draper, 6 Ec. 
 & Mar. Cas. 421 ; Nicholas v. Burns, 
 1 Swab. & T 243 ; Johnson v. Blane, 
 6 Ec. & Mar. Cas. 457; but see 
 People V. Smith, 57 Cal. 130, where 
 it was held in a criminal trial that 
 it was proper for the court to refuse 
 to instruct the jury that if the de- 
 fendant was shown to have been in- 
 sane just before the crime was com- 
 mitted, the presumption was that he 
 
 was insane when he committed it, 
 but holding- that such a refusal is 
 erroneous when the insanity is shown 
 to have been hal)itual. See State 
 V. Wilner, 40 Wis. 304. 
 
 ^ Hix V. Whittemore, 4 Met. 
 (Mass.) 545 ; Hall v. Warren, 9 Ves. 
 605 ; Walcott v. Alleyn, Milw. Ex. 
 Tr. 69 ; Airey v. Hill, 2 Add. 289 ; 
 White V. Wilson, 13 Ves. 87. 
 
 * Murphy v. Dorr, 25 111. 251. 
 
 * Pickett V. Peckham, L. R., 4 Ch. 
 App. 190 ; Blandy v. De Burg-h, 6 
 C. B. 623; Alderson v. Clay, 1 
 Stookee, 405 ; Clark r. Alexander, 8 
 Scott, 161 ; Ryan v. Lams, 12 Q. B. 
 460. 
 
 * Ryan v. Lams, ante. 
 
 ' Scales V. Key, 11 Ad. & El. 819. 
 « Reg-. V. LiUeshall, 7 Q. B. 158.
 
 Ifi2 KVIDENCE. [CHAr. m. 
 
 jillcn'd by the plaintiH" to liavc been executed l)y him in his 
 iniiiority, it wjus ht-kl that ihiio avils no prcsuni})tion that he 
 had attained his majority, and tliat he must prove that fact.* 
 So, where a pei"son is sliown to have resided at a certain 
 phiee at any tiiiK', it will be presumed that he continues to 
 reside tln-re until the contrary is shown. ^ So, where it is 
 shown that a person's reputation for truth and veracity Avas 
 "•cod three yeai-s ago, it will be presumed that it still con- 
 tinues S0.3 So, where property is shown to have belonged 
 to a jx-i-son i)rior to his death, it w^ill be presumed to have 
 belonged to him at the time of his death ;^ and generally, 
 where i>roperty, either real or personal, is shown once to 
 have belonged to a jjcrson, it will be presumed that it con- 
 tinues to be his until the contrary is shown. ^ The opinions 
 of individuals once entertained and expressed, and the state 
 of their mind once proved to exist, are presumed to remain 
 unchanged.^ A person once shown to have been living will 
 be presumed to be still alive, in the absence of evidence that 
 they have not been heard from within the last seven years.''' 
 But where a person goes abroad, and nothing is heard from 
 him by those who, if he was living, would be likely to hear 
 from him, the presumption of his life cciises after seven 
 years.^ By the civil law the legal i)resumption of life ceases 
 
 ' Irvine v. In'ine, 5 Minn. Gl. H. 191 ; Crawford V. Elliott, 1 
 
 ' Kilbum V. Bennett, 3 Met. Houst, (Del.) 465 ; Piimm t>. Stew- 
 
 (Ma.s«.) 100; Prather v. Palmer, 4 art, 7 Tex. 178; Coper v. Thur- 
 
 Ark. 4')Q ; Wilmington v. Burling- mend, 1 Ga. 538 ; Brown v. Jewett, 
 
 ton, 4 Pick. (Ma-ss.) 174; Randolph 18 N. H. 230 ; Smith v. Smith, 5 N. 
 
 V. Ea.«ton, 22 id. 242 ; Rixford v Y. Eq. 484 ; Osboi-n v. Allen, 20 N. 
 
 Milli-r, 49 Vt. 319. J. L. 388 ; Buit v. Sim, 4 "Whart. 
 
 » Lum V. State, 11 Tex. App. 483. (Penn.) 450 ; Bradley v. Bradley, 4 
 
 * Hanson v. Chatovich, 13 Nev. id. 173 ; Flynn v. Coppee, 12 Allen 
 395. (Mass.), 133; Forsaith v. Clark, 21 
 
 * Harrison v. Queen Ins. Co., 49 "N. H. 409; Stinchfield v. Emereon, 
 "Wis. 71. 52 Me. 4G5 ; Norman v. Jenkins, 10 
 
 • State V. Stinson, 7 Law Il*'p. Pick. (Mass.) 515 ; Eagle ti. Em- 
 (Am.)383. mett, 4 Bradf. (N. Y. Sun-.) 117; 
 
 ' R. V. Lumley, L. R., 1 C. C. 196 ; Loring v. Steinman, 1 Met. (Mass.) 
 
 Letts ti. Brooks, H. & D. Suppt. (N. 404 ; Man.«burgh v. Jackson, 2 N. 
 
 Y.)36. J. L. 229; Spun- v. Trimble, 1 A. 
 
 • Whiteside's Appeal, 23 Penn. K. Mar. (Ky.) 278 ; Stevens v. Mc- 
 Bt. 114; Smith v. Knowlton, 11 N. Namara, 36 Me. 176; Tilley •». Til-
 
 SEC. 62.] PRESUMPTIONS. 183 
 
 ill one hundred years from the date of birth,' and such also 
 is the rule in the Scotch law f but in this country as well as 
 in England there is no fixed time within which the presump- 
 tion is allowed to prevail, and the fact that the person, if 
 living, would be more than one hundred years old, is not 
 conclusivc.3 In one case, where it was shown that the per- 
 son, Avhcu last heard from, was twenty-two years old and in 
 bad health, and w^ould, if then living, be eighty years old, 
 and although, upon inquiry at his last known place of resi- 
 dence and post-office address, his name was not known at the 
 post-office nor inserted in the city directory, was held not 
 sufficient to raise a presumption of his death.* In an Eng- 
 lish case the deposition of a witness taken sixty years before 
 was rejected, there being no proof that a search had been 
 made for the witness, and no account being given of him f 
 and in another case, where the term was sixty years old, the 
 court took into consideration the possibility of the termor 
 still being alive. ^ But in an action of ejectment, where the 
 lessor of the i)laintitF, to prove his title, put in a settlement 
 130 years old, by which it appeared that the party through 
 whom he claimed had four elder brothers, the jury were 
 instructed that they might presume, not only that these per- 
 sons were dead, but in the absence of all evidence to the 
 contrary, that they died unmarried and without issue.''' 
 Whether the portion of the doctrine of the last case relating 
 to the presumption that the persons died without issue there 
 may be some doubt, but in any event it seems that such a 
 l)resumption will be sustained by very slight proof, such as 
 
 ley, 2 Bland (Md.), 436 ; Whiting x\ ' Canipegins Tract, de Test. reg". 
 
 NichoU, 46 III. 230; Asbm-gh r\ 350. 
 
 Saunders, 8 Cal. 62 ; Clarke v. Can- "" Hubb Ev. of Succ. 758. 
 field, 15 N. J L. 119. It is not nee- ^ Biirney v. Ball, 24 Ga. 505 ; 
 essary that the person should be Weale -v). Laever, Pollex, 67 ; Nap- 
 shown to have gone out of the coun- per t). Sutton, Hiitt. 119. 
 try ; it is sufficient if he is shown to ^ Matter of Hall, 1 Wall., Jr. (U. 
 have been absent, unheard of, from S.) 85. 
 
 the particular State, seven years. ^ Benson v. Olive, 2 Str. 920 ; 
 
 Newman v. Jenkins, ante; Woods Manby t\ Curtis, 1 Price, 225. 
 x\ Woods, 2 Bay (S. C), 476; Spun- ® Beverley v. Beverley, 2 Vern. 
 
 V. Trimble, ante; Wambough v. 131; Doe ?). Andrews, 10 Q. B. 314. 
 Schenk, ante. ' Doe v. Deakin, 3 C. & P. 402.
 
 le>4 
 
 EVIDKNCE. 
 
 [CHAl'. III. 
 
 ruiluiv lo boar ol" any suili i»uc a[)un due iiniuiiy, or luilure 
 lo answer a(iv(.'rtitieinciit.s calling for heirs, etc.^ While, how- 
 I'ver, the law raises a [)resiiiii[)lioii of death after an absence 
 of seven years, unheard ol", Vfl it raises no presumption as to 
 the tone of death,'- not even that he died on the last da// of 
 the seven years ;^ therefore if it hccaine important for a party 
 to estal)lish the precise time of death, he must do so hy evi- 
 dniee and cannot rely either u[)on the piesumption of death 
 upt)n the one hand or of the continuance of life upon the 
 other.'' 
 
 Sec. 63. Presumption of Death may be raised by Lapse of Period less 
 than Seven Years, -when. 
 
 While the presumption of the connnon law docs not attach 
 to the mere la[)sc of time less than seven years, independent of 
 other circumstances, yet, upon an issue of life or death, the jury 
 ma\ , where the circumstances warrant it, find the fact of death 
 from I he lapse of a shorter period. Thus, where it appeared 
 that al»ri,L''had sailed from Demerarato England, in December, 
 1828, and touched Dominica on the 24th of that month, and 
 had never after l)een heard of, Vice-Ciiancellou Knight- 
 Bruce, after a lajpse of seven years, presumed that the vessel 
 and crew were lost before the 29th of January, 1829, evi- 
 
 ' (xreavea v. Greenwood, L. R., 2 
 Exch. D. 287 ; see Emerson v. "White, 
 29 N. II. 482, where it was held 
 that there is no presumption either 
 way a.s to Tnarriage or the birth of 
 rhildn-n and that a person who as- 
 serts that a i)ei-son is dead without 
 is.sue must c>ffer .swae evidence of the 
 fa<!t. But if the events aie remote 
 slig^ht evidence will suffice. 
 
 ' M'Carter v. Camel. 1 Barb. Ch. 
 (N. Y.) 4o.'>. The pi-obable time of 
 death may be infen-ed from the 
 circumstances, but if no sufficient 
 facts are shown from which to draw 
 a rea.sonaV)le inference that death 
 occurred Ufmre the lapse of that 
 period, the person will, in all lefjal 
 pnx'eedingH, be treated as ha\-ing' 
 lived during the whole of that peri- 
 
 od. Eagle V. Emmett, 4 Bradf. (N. 
 Y. Surr.) 117; Puckett v. State, 1 
 Sneed (Tenn.), 355 ; Gorden v. Gor- 
 den, 2 Houst. (Del.) 574 ; White v. 
 Mann, 26 Me. 361; Merritt v. 
 Thompson, 1 Hilt. (N. Y. C. P.) .550 ; 
 Gibbs V. Vincent, 11 Rich. (S. C.) 
 323. 
 
 » Nepean v. Knig-ht, 2 M. & W. 
 894 ; McCarter v. Camel, ante. 
 
 ♦ In re Phene's Trusts, L R., 5 Ch. 
 Ajip. 139 ; Dunn v. Snowden, 2 Dr. 
 & Sm. 201 ; Lewe's Trusts, L. R., 11 
 Eq. 236 ; Lambe v. Orton. 29 L. J. 
 Ch. 286 ; In re Benham'.s Trusts, 37 
 L. .1. Ch. 265 ; Pennefeather t). Pen- 
 nefeather, L. R., 6 Eq. 171 ; In re 
 Peck, 29 L. J. Pr. & Mat. 95 ; Hick- 
 man V. Upsall, L. R., 20 Eq. 136.
 
 SEC. 63.] PRESUMPTIONS. 185 
 
 deuce being given that the average length of a voyage from 
 Dominica to England was less than two months, and that the 
 West Indian latitudes, were subject to hurricanes, which were 
 so much more prevalent between the 1st of August and the 
 loth of January that double rates of insurance were charged 
 during that period.^ So, too, when it is sho\vn that a per- 
 son when last heard of was aged, infirm or ill,^ or has since 
 been exposed to great perils, such as a storm and probable 
 shipwreck, 3 death may be presumed in a less period. Thus, 
 in the case of a missing ship l^ound from Manilla to London, 
 on which the underwriters had voluntarily paid the amount 
 insured, the death of those on board was presumed by the 
 Prerogative Court, after the absence of only two years, and 
 administration was granted accordingly.^ So, also, where a 
 person takes passage on a ship or steamer, and upon arrival at 
 port he is not to be found upon the boat, the boat not having 
 landed during the voyage, a jury might with great propriety 
 from this fact presume the person's death during the voyage. 
 So there are a variety of instances in which the peculiar 
 circumstances would warrant a jury in finding the fact of 
 death by the lapse of a less period than seven years. The 
 burden of proving the death of a person is upon him who 
 sets it up ;^ and if he relies upon the absence of the person 
 for seven years without being heard from, he must establish 
 both facts before the presumption arises. Mere fact of 
 absence is not enough ; he must show in(|uirics made at his 
 last known residence abroad, or if he had none that is known 
 to his friends, inquiries made of persons in the place where 
 he was last known to reside l)efore he went abroad, and in- 
 (|uiries among his relatives and friends who would be most 
 likely to hear from him if living.^ So the issuing of letters 
 ctf administration upon the estate of a person \q primd, facie 
 evidence of the person's death, as it will l)e presumed that 
 
 ' Sillick V. Booth, 1 Y. & C. 117 ; ^ Emerson v. White, 29 N. H. 482 ; 
 
 Ommaney v. Stillwell, 23 Beav. 328. Ashbury v. Sanders, 8 Cal. 62 ; Gil- 
 
 * R. V. Hasborne, 2 Ad. & El. 544 ; liland v. Martm, 3 McLean (U. S.), 
 Beasney's Trusts, L. R., 7 Eq. 498. 490. 
 
 ^ Watson V. King, 4 Camp. 272. « McCartee d. Camel, 1 Bai-b. Ch. 
 
 * Patterson 1). Black, 2 Park's Ins. (N. Y.)455; Clarke (). Cummings, 
 919. 5 Barb. (N. Y.) 339. 
 
 m.
 
 l.Si; KVIDEXCE. [CTIAP. III. 
 
 the court issuing the Icttei-s did so upon competent proof of 
 tJKit t';ict.' Proof of ubsence without being heaid from for 
 u period less tluin seven years, though ])ut a da//, will not be 
 sutiioient. Tiie full i)eriod must have elapsed, even though 
 it is shown that the person was in feeble health when he left 
 the neighborhood, or was very aged,*^ But, while the law 
 raises the presumption of death after seven yeaiV absence 
 abrmd (wliieli means either beyond seas, or out of the State), 
 without being he;ud from, yet it does not, except in peculiar 
 cases, raise any presumption its to the time of death, but in 
 all legal proceedings the person will be regarded as having 
 lived until the expiration of the seven years )^ hut where a 
 person sails on a voyage at a particular date, and the length 
 of time which it takes to make the voyao^e is known, quickest 
 and longest, it will, after the lapse of seven years without 
 tidings from him, be presumed that he died within the period 
 usually assigned for the longest voyage, and legal proceed- 
 ings taken against or for him after that period will be deemed 
 invalid."* 
 
 Sec. 64. Presumption as to Survivorship. -^ • 
 
 By the civil law, Avhen two or more relatives have perished 
 by the same calamity, as a wreck, battle, conflagration, etc., 
 in the absence of direct proof as to which survived, certain 
 artitieiul ])resumplions are resorted to which are based on the 
 probabilities of survivorship resulting from strength, age 
 and sex. Thus, in the case of a father and son perishing by 
 the same shipwreck or battle, by the civil law it is presumet 
 that the son died first if he ivas under the age of puberty ; 
 but if he van above that age, it is presumed that he was the 
 survivor, upon the princiiilc that in the former case the elder 
 is generally the more robust, and in the latter the younger.^ 
 
 ' Tisflalor. Conn., &c., Ins. Co., Rep. (N. Y.) 117; White r. "White, 
 
 26 Iowa, 170 ; McNair v. Ryland, 1 26 Me. 361 ; Merritt v. Thompson,. 
 
 Dev. (N. C.) 533. 1 Hilt. (N. Y. C. P.) 550 ; Puckettr. 
 
 ' Ashbury r. Sanders, 8 Cal. 62 ; State, 1 Sneed (Tenn.), 355. 
 
 Bumey r. Ball, 24 Ga. 505 ; Matter " Gen-y v. Post, 13 How. Pr. (^ . 
 
 of Hall. Wall., Jr. (U. S.) 85. Y.) 118. 
 
 • Kngle r. Emmett, 4 Bradf. Surr. ' Dig., lib. 34, tit. 5.
 
 SEC. 64, J PEESUMPTIONS. 187 
 
 By the French code, regard is had to the ages of fifteen and 
 sixty, presuming that, as between those under that age and 
 not over sixty, the latter survives ; but if one of the parties 
 is under fifteen, and the other over sixty, the former sur- 
 vives. If both parties were between those ages, but of dif- 
 ferent sexes, it is presumed that the male sur\'ived, unless he 
 was more than a year younger than the female ; but as be- 
 tween those of the same sex, it is presumed that the youngest 
 survives.' But by the common law there is no presumption 
 either of survivorship or contemporaneous death, but in the 
 absence of all evidence upon the point, it will be treated as a 
 matter incapable of being determined.^ The question is, from 
 the beginning to the end, one of fact, as bearing upon which 
 the sex, age and relative physical strength of the persons 
 who were lost may be shown, and is generally the only evi- 
 dence which can be had upon the question f and as a rule, 
 in the absence of any evidence upon which a finding can be 
 based, it wnll be presumed that all perished at the same 
 moment.* In other words, as the fact is incapable of proof, 
 the courts will assume that all perished at the same second 
 of time. In the language of Church, C. J.,^ "There are 
 cases where a strong probability in theory at least would 
 arise that one person survived another, and perhaps as strong 
 as that there was a survivor, and yet the common law wisely 
 refrains from acting upon it in either case. It is regarded 
 as a question of fact to be proved, arid evidence merely that 
 two persons perished by such a disaster, is not deemed suffi- 
 cient. If there are other circumstances shown, tending to 
 prove survivorship, courts will then look at the whole case 
 
 ' Code Civil, §§ 720, 721, 722. Diplock, 2 Phill. 261 ; In the matter 
 ^ Wing V. Aug-ram, 8 H. L. Cas. of Selwyn, 3 Hogg- Ec. Rei?. 748. 
 183 ; Smith v. Croom, 7 Fla. 81 ; ^ In Newell v. Nichols, 73 N. Y. 
 Coye V. Lach, 8 Met. (Mass.) 371. 78. In this case a mother, aged 
 But see Pell v. Ball, 1 Cheve (S, C), sixty-nine, a son-in-law, aged forty- 
 part 2, 57, where the civil law rule five, and two children, aged respect- 
 was practically adopted. ively ten and seven years, perished 
 
 * Underwood i\ Wing, 4 D., M. & in the same shipwreck at sea, and 
 G. 24 ; Green's Settlement, L. R., 1 in the absence of any other evidence 
 Eq. 289. it was held that there was no pre- 
 
 * Sir John Nicoll in Taylor v. sumption of survivorship.
 
 168 EVIDENCE. [CH/ 
 
 \r. HI. 
 
 for tlio purpoao of determining the question, but it' only the 
 fact of tUalh by a coninion disjistcr ap[)ear.s, they will not 
 UMck'iluke to fc^olvc it on account of the nature of the ques- 
 tion anil its inherent uncertainty. It i.s not inipo.s.'sihle for 
 two pi-rsons to (lie at the same time, and when exposed to 
 the .sime peril uuLK-r like circumstances, it is not, as a question 
 of piohahilily, very unlikely to ha[)[)en. At most the difler- 
 once can only be a few brief seconds. The scene p:usses at 
 once beyond the vision of human i)enetration, and it is as 
 unbecoming jis it is idle for judicial tribunals to speculate or 
 guess whether during the momentary life struggle one or 
 the other may not have ceased to gasp first, especially when 
 the transmission of title to i)roperty depends upon it, and 
 hence in the absence of other evidence the fact is assumed 
 to l)e unascertainal)le, and property rights are disposed of Jis 
 if death occurred at the same time. This is done not because 
 the fact is proved, or that there is any presumption to that 
 effect, but because there is no evidence, and no presumption 
 to the contrary. The authorities are uniform upon this doc- 
 trine, l)ut the expressions of some of the judges in announc- 
 ing it arc liable to be misunderstood as indicating a presump- 
 tion of simultaneous death, which is not the rule. For 
 instance. Sir William Wynne said: 'I always thought it 
 the most natural i)resumption that all died together, and 
 that none could transmit rights of property to another.'^ 
 
 "Sir J(M1n' Xicoll said : 'I assume that both perished in 
 the same mimient.'- And in the absence of clear evidence 
 it has generally been taken that both died in the same 
 moment. Sir Herbert Jenner said : 'The parties nuist be 
 presumed to have died at the same time.'^ 
 
 "Tiiese expressions only mean that as the fact is incai)a))le 
 of proof, the one upon whom the o///^s' lies fails, and persons 
 thus perishing must be deemed to have died at the same 
 time, for the i)urpose of disposing of their property. The 
 Lord Chancellor'' recognized the distinction, and explained 
 
 ' Rex V. Heapea, 2 Salk 593 ; 2 In the Matter of Selwyn, 3 Hagg-. 
 
 Phill. 296, note c ; Doe ?). Nepean, Ec. R. 748. 
 5 B. & A.I. 91, 92. 3 I curties, 705. 
 
 » Taylor r. Diplock, 2 PhiU. 261 ; * In Wing v. Underwood, supra.
 
 SEC. 65.] PRESUMPTIONS. 189 
 
 the meaniug of the rule. In commenting upon a similar 
 expression of the Master of the Rolls to the effect that he 
 must assume that Mr. and Mrs. Underwood both died 
 together, the Chancellor said : 'From personal communica- 
 tion with his honor, I know that he is not aware that he ever 
 used such an expression, and all he ever meant to say was 
 that the property must be distributed just as it would have 
 been if they hud both died at the same moment.' And 
 Mr. Best, in his work on Presumptions, after layhig down 
 the general rule, states that it is not correct to infer from 
 this that the law presumes both to have perished at the same 
 moment, and adds : 'The practical consequence is, however, 
 nearly the same, because if it cannot be shown which died first, 
 the fact will be treated by the tribunal as a thing unascer- 
 tainable, so that for all that appears to the contrary, both 
 individuals may have died at the same moment.' All the 
 common-law authorities are substantially the same way, and 
 the rule, which I think is Avise and safe, should be regarded 
 as settled. Its propriety is not weakened by the circum- 
 stances that its first application in this court prevents this 
 estate from being turned into channels never contemplated 
 or intended by the testatrix." 
 
 Sec. 65. Presumptions as to Ships not heard from. 
 
 It is a rule in insurance law, that when a vessel has sailed 
 upon a voyage, and no tidings of her have been received 
 within a reasonable time, she shall be presumed to have 
 foundered at sea.^ But there must be some evidence that 
 when she left the port of outfit she was bound upon the voy- 
 age insured.^ This presumption is so strong that it cannot 
 be rebutted by mere rumors,^ nor is it necessary to call 
 witnesses from the port of destination : it is sufficient if it is 
 shown that she has not been heard of at the port of outfit, 
 after she sailed; ^ nor, even though it appears that the crew- 
 were saved, is it necessary to call any of them, nor to show 
 
 * Green v. Brown, 2 Str. 1199 ; ^ Coster v. Innes, Ry. & M. 333. 
 
 Newby v. Reed, 1 Park on Ins. 148 ; ^ Koster v. Reed, ante. 
 
 Koster v. Reed, 6 B. & C. 19 ; Brown * Twemlaer v Oswin, 2 Camp. 85. 
 V. Neilson, 1 Cai. (N. Y.) 525.
 
 190 EVIDENCE [CIIAT. III. 
 
 lliul il \va->< iiiiposriiljlo to do so.' No clcfiiiito time hivs been 
 lixi'tl iii)on, oithor by i\w coinmoii l:i\v or the custom of iiicr- 
 cliaiitri, Jil'ter whioli the insured may demand payment of his 
 loss, when no intelligence of the vessel has been received. 
 But the (luestion in each cose, whether a reasonable period 
 for reccivin<' tidings of tlu' vessel has elapsed or not, is one 
 of fact for the jury ; although a practice has grown up 
 among insurers in England, of deeming a vessel lost if she 
 is not heard from within six mouths after her departure for 
 any port in Europe, or in twelve months if bound for a 
 greater distance.'* If a ship, shortly after sailing, without 
 visil>le or ade(|uate cause becomes leaky or otherwise unfit 
 for the voyage, it is presumed that she was uiiseaworthy 
 when the risk connuenced.^ Thus, where a vessel, on the 
 next day after sailing, suddenly sprung a leak and was lost, 
 without any stress of weather or other visible cause to which 
 the leak could be ascribed, it was held that the loss should 
 be im[)uted to some latent or inherent defect in the vessel, 
 which rendered her unseaworthy, and for which the under- 
 writei*s were not liable.'' 
 
 Sec. 66. Presumption as to Accounts. 
 
 It is presumed that an entry in a book of accounts, as 
 originally made, was correct ; consequently, if it is subse- 
 quently changed, the burden is upon the party presenting 
 the account to show that the alteration expresses the real 
 facts.* So, where it ajjpears from the books of the parties, 
 or from any other source, that the accounts between them 
 have been settled, and a balance struck and agreed upon, it 
 will be presumed that the balance so agreed upon is correct, 
 and the burden of showing the contrary is upon the party 
 who seeks to set aside the settlement.® Where the accounts 
 
 ' Koster v. Reed, ante. Ins. Co., 2 John. (N. Y.) 124 ; 
 
 ' 1 Park on Ins. 149. Wrights. Orient Ins. Co., 6 Bos. (N. 
 
 * Parker v. Potts, 3 Dan. 23 ; Y.) 269 ; Stui-m v. Gt. Western Ins. 
 "Watson V. Clark, 1 id. 344 ; Munro Co., 40 How. Pr. (N. Y.) 423. 
 
 r. Vandam, 1 Park on Ins. 469. " Shells v. West, 17 Cas. 324 ; 8. 
 
 * P.itrick V. Hallett, 3 John. Cas. P. State v. Knapp, 45 N. H. 148. 
 (N. V.) 76 ; Talcott v. Commercial • MiUs v. Johnston, 23 Tex. 308.
 
 SEC. 67.] PRESUMPTIONS. 191 
 
 between the parties afford no evidence of a settlement hav- 
 ing been made between them, they are presumed to be open, 
 and the burden of proving the contrary is upon the party 
 who claims that they were liquidated.' Where an account 
 is given or forwarded to the other party and retained by him 
 for a long time without objection, it is presumed to be cor- 
 rect,^ and the burden is upon the party receiving it to prove 
 its inaccuracy.^ 
 
 Sec. 67. As to Agency. 
 
 Where a person makes a contract, oral or written, repre- 
 senting himself to be, and as the agent of another, it is, as 
 between him and the parlij icith whom he contracted in the 
 . first instance, presumed that he had authority to so act, and 
 in an action against him thereon the burden is upon the 
 plaintifl' to show th&t he had no authority in fact to make 
 such contract. Thus, where a promissory note is given to 
 B., signed by A., agent for C, as the note upon its face does 
 import a personal obligation, the burden is upon the plain- 
 tiif to show his personal liability,'* but in an action against 
 the supposed principal, there is no presumption either way, 
 but the burden is upon the party seeking to enforce the con- 
 tract, to establish in some way, by independent evidence, the 
 fact of agency.^ Where a person deals with a person who 
 is agent for a foreign principal, the presumption is that he 
 does not contract with the foreigner, but trusts the person 
 with whom he actually makes the bargain;^ but although 
 Judge Story, in his work on Agency, '^ says that this presump- 
 tion is so strong as almost to amount to a presumption of 
 law, yet it is held that the presumption may be rebutted by 
 
 * M'Lellan v. Crofton, 6 Me. 308. Vandeveer v. Statesir, 39 N. J. L. 
 
 * Chebb V. Chambers, 3 Ired. (N. 593. 
 
 C.) L. 374 ; Sheppard v. Bank of * Bradley v. McKee, 5 Cr. (U. S. 
 
 Missouri, 15 Mo. 143 ; Freeland v. C. C.) 298. 
 
 Heron, 7 Cr. (U. S.) 147; Darby v. " Holmes -y. Dodge, 1 Abb. Adm. 
 
 Lastrapes, 28 La An. 605; Rowell (U. S.) 60; Reynolds v Continental 
 
 V. Pacific R. R. Co., 65 Mo. 658; Ins. Co., 36 Mich. 131. 
 
 Greene v. Harris, 11 R. I. 105. ^ Heald v. Kenworthy, 10 Exch. 
 
 ' Bertrand v. Taylor, 32 Ark. 470 ; 743 ; Story on Agency, § 290. 
 
 ' § 290.
 
 192 EVIDENCE. [CIIAP. III. 
 
 ttiiy evidence, extrinsic or intrinsic, which tends to «how that 
 credit w;is in fact given to the foreign principal.* 
 
 8«c. 68. Afl to Carriers ; Negligence, &c. 
 
 In the case of common carriers, whether by land or water, 
 upon i)roof of delivery of goods to them and loss of them 
 l)y iht-m it is presumed that they were lost by their negli- 
 o-ence, and the burden is upon them to show that they were 
 lost l)V one of the perils from which they are exempted 
 either by the law or the contract of shipment,^ and the same 
 rule applies to bailees for hire. But this presumption only 
 applies in the case of connuon curriers of goods, and in the 
 case of carriers of passengers, except in special instances, 
 some proof of negligence must be given f but as in the case 
 of a railroad company, where an injury to a passenger results 
 from the breaking down of a passenger 'coach, the breaking 
 of a rail, the falling away of an embankment, the breaking 
 down of a bridge, a collision of trains, or from the train 
 being thrown from the track, the law will presume negli- 
 gence on the })art of the com[)any unless the contrary is 
 shown,'* because in these instances the carrier owes a duty to 
 the passenger to exercise reasonable vigilance to kce}) the 
 appliances of the business in a safe condition, and from the 
 very circumstance of the existence of the defect, it is reason- 
 able, in the tirst instance, to presume that if he had done so, 
 the injury woiiM have been avoided. Indeed, in many cases, 
 jyoi/i l/i'.' n/ure happe/uiiff of an accident a jury will be war- 
 ranted in presuming negligence, and this may be said to be 
 the case 2vhen the accident is one which, in the oi'dinary course 
 of things, does not occur inhere propei care is exercised in the 
 management of the business, and consecpiently atlbrds reason- 
 
 ' Green v. Kopke, 18 C. B 549; Co., 30 Ga. 22; Northern Central 
 
 Mahoney v. Kekute, 14 id. 390. Railway Co. v. State, 54 Md. 113 ; 
 
 ' Tarbox b. Eastern Steamboat McKissock v. St. Louis, &c., R. R. 
 
 Co., 50 Me. 339 ; Steamer Niag-ara Co., 73 Mo. 456. 
 
 V. Coifles, 21 How. (U. S.) 7 ; Shaw * Pittsburg-h, &c., R. R. Co. v. 
 
 V. Gardner, 12 Gray (Mas?.). 48S ; William.'), 74 Ind. 4G2 ; Flanneiy V. 
 
 Ross ,'. Hill. 2 C. IJ s'.tO ; Cog^s v. Watej-ford, &c., R. R. Co., I. & R., 
 
 Baniar-l. 2 Ld. Ray'd, 978. 11 C. L. 30 ; Skinner ■«. London, &c., 
 
 » MiU:hoU v. Western, &c., R. R Railway Co., 5 Exch. 787.
 
 SEC. 69.] PRESUMPTIONS. 193 
 
 able grounds for presuming negligence.' Thus where a stage 
 coach is overturned or breaks down without any apparent 
 cause, the law implies negligence, and the burden is upon the 
 owners to rebut the presumption.^ So where a building is' 
 injured by a blast, the presumption is that the blast was not 
 properly covered.^ But in all cases it must be remembered 
 that neither fault or negligence are to be presumed without 
 some evidence upon which to predicate it.^ In other words, 
 the plaintiff must show an injury \N\\\ch. prima fade resulted 
 from some fiiult on the part of the defendant.^ 
 
 Sec. 69. As to Character. 
 
 It is presumed that every man's character is good until 
 the contrary is proved f consequently, in an action of slander 
 or libel, it is not necessary for the plaintiff in the first instance 
 to do more than prove the speaking or publishing of the 
 words complained of, and if the defendant relies upon the 
 truth of the words in defense, he must prove it. The fact 
 that a man's character is shown to have been good, does not 
 raise a presumption of innocence, as against evidence which 
 reasonably raises a presumption of guilt.' But where there 
 is a doubt, evidence of former good character is admissible 
 to aid in its solution. Where the evidence is such as to raise 
 a iDresumption against a man's character, and he does not 
 attempt to remove it, it will be presumed that it cannot be 
 done,^ and such a presumption cannot be removed by show- 
 
 ' Bryne v. Boadle, 2 H. & C. 722 ; v. Thompson, 56 111. 138 ; Brignoli 
 
 Scott t) London Dock Co., 3 id. 596 ; v. Gt. Eastern R. R. Co., 4 Daly 
 
 Keamey v. London, &c.. Railway (N. Y. C P.), 182. 
 
 Co., L. R., 5 Q. B 411 ; 6 id. 759 ; « Ulrich v. McCabe, 1 Hilt. (N. 
 
 Ware v. Gay, 11 Pick. (Mass.) 106, Y. C. P.) 251. 
 
 ' Ware v. Gay, ante ; Feital v. * Lyndsay v. Conn. & Pass. River 
 
 Middlesex R. R. Co., 109 Mass. 398 ; R. R. Co., 27 Vt. 643. 
 
 Brehm v. Gt. Western R. R. Co., 34 * Teri-y v. N. Y. Central R. R. 
 
 Barb. (N. Y.) 256 ; Edgerton v. N. Co., 22 Barb. (N. Y.) 574 ; Buel v. 
 
 Y., &c., R. R. Co., 35 id. 389 ; Reed N. Y. Central R. R. Co., 31 N. Y. 
 
 V. New York Central R. R. Co., 56 314. 
 
 id. 493 ; Holyoke v G'd Trunk R. ' Gogg-ans v. Monroe, 31 Ga. 331. 
 
 R, Co., 48 N. H. 541 ; Virginia Cen- ' State v. Hagard, 12 Minn. 293. 
 
 tral R. R. Co. v Sanger, 15 Gratt. * Parks v. Richardson, 4 B. Mon. 
 
 (Va.) 230; Pittsburgh, &c., R. R. Co. (Ky.) 276. 
 
 13
 
 in t KVIDENCE. [chap. HI. 
 
 iiig tluit the i)arty holds a certuhi public position, us, that 
 lu' is liieiiscd to practice as an attorney,' because ex- 
 perience h;is denioiLst rated that persons who have been ele- 
 vated to high positions are liable to be lacking in integrity, 
 and, it" a man's character is really good, it is unreasonable to 
 })resuine that he can always show it by direct proof. 
 
 Sec. 70. Fraud. 
 
 Fraud is never presumed, either at law or in equity, "^ but 
 the burden is upon the party alleging to prov^e it,^ unless the 
 circumstances shown are of such a strong and pregna)it char- 
 acter that no other reasonable conclusion can be drawn from 
 them* in which case the burden is shifted upon the other 
 party to prove bona fides in the transaction f and if the pre- 
 snmi^tive circumstances are strong, they will outweigh posi- 
 tive testimony against it.® 
 
 Sec. 71. Damages. 
 
 From proof of an injury to a right some damage is pre- 
 sumed to sustain the right, ''^ but if more than nominal dam- 
 ages are claimed, they must be proved and cannot be pre- 
 sumed.^ If a number of cattle belonging to difTcrent per- 
 sons break into another's enclosure and do damage, each, in 
 the absence of any proof to the contrary, will be presumed 
 to luive done an ecpial damage.^ 
 
 * Haynes v. State, 17 Ga. 465. * Hager v. Thomson, ante. 
 
 ' Ret'ves v. Dougherty, 7 Yerg. * Poxton v. Boyce, 1 Tex. 317 ; 
 
 (Tenn.) 222 ; Hager v. Thomson, 1 Short v. Staples, 1 Gall. (U. S. C. C.) 
 
 Blaijkf. (U. S.) 80 ; Blaisdell v. Car- 104 ; Gayso v. Delaraderi, 9 La. An. 
 
 nell, 14 Me. :370 ; Martin v. Drumm, 278. 
 
 12 La. All. 4!t4 ; Sutter v. Lackman, ^ Hair v. Little, ante. 
 
 39 Mo. 91 ; Wright v. Prescott, 2 ' • Short v. Staples, ante. 
 
 Burh. (N. Y.) 196 ; Salmon v. Orser, ' Tedder v. Stiles, 16 Ga. 2. 
 
 5 Dner (N. Y.), 511 ; Packard v. * Fasseler v. Lane, 48 Penn. St. 
 
 Clapp, 11 Gray (Ma.'^s.), 124; Oaks 407; Farley v. Vanmickle, 19 La. 
 
 V. Harri.son, 24 Iowa, 179 ; Hair v. An. 9. 
 
 Little, 28 Ala. 2.36 ;Silversu. Hedges, » Partenheimer v. Van Orden, 20 
 
 3 Dana (Ky.), 439. Barb. (N. Y.) 479.
 
 SEC. 73.] PRESUMPTIONS. 195 
 
 Sec. 72. Identity. 
 
 Identity of name is prima facie evidence of identity of 
 person/ where there are no particular circumstances tending 
 to raise a question as to the party being the same.^ Tiius, it 
 has been held that two certificates for vacant land granted 
 in the same name will be presumed to have been granted to 
 the same person.^ But, if required, some evidence beyond 
 that of mere identity of name must be given that the plain- 
 tifi" is the same person who is entitled to an interest in real 
 estate,* But this presumption of identity of person from 
 identity of name may be overcome by proof that there is more 
 than one person by that name or that the name is a common 
 one.® Of course the strength of this presumption is increased 
 when there is not only identity of name, but also of profession 
 and place of abode or of age.^ Mere similarity of name is no 
 proof of identity of person. Thus the question whether 
 R. P. O'Neil, who executed the deed, and Rev. P. O'Neil, 
 who owned the land, were the same person, was held to have 
 been erroneously submitted to the jury without some proof 
 of identity beyond that named.' 
 
 Sec. 73. Abandonment. 
 
 An abandonment of a right is never presumed,^ but must 
 be proved as a fact,^ except where the right has been per- 
 
 ^ Gitt V. Watson, IS Mo. 27-1; chael Dundon, Jr., it will not be pre- 
 
 Cates V. Loftus, 3 A. K. Mar. (Ky.) sumed that the same person is meant 
 
 202. But see Mooers v. Bunker, 29 in both instruments, especially when 
 
 N. H. 420 ; Reynolds v. Staines, 2 it is proved that there are two per- 
 
 C. & K. 745 ; Murietta v. Wolfha- sons by the name of Dundon, one of 
 
 gen, 2 id. 744. whom is Michael and the other Pat- 
 
 " Roden v. Ryde, 4 Q. B. 626 ; rick Michael. 
 
 Hamber v. Roberts, 7 C. B. 861 ; « Smith v. Henderson, 9 M. & W. 
 
 Barker v. Stead, 3 C. B. 946 ; 798 ; RusseU v. Smyth, 9 id. 818 ; 
 
 "WMtelocke v. Musgrove, 1 C. & M. Simpson v. Dinsmore, 9 id. 47. 
 
 511 ; Jones v. Jones, 9 M. & W. 75. ' Burfordv. McCue, 53 Penn. St. 
 
 * Gates V. Loftus, ante. 427. 
 
 * Moers u Bunker, 29 N. H. 420. * Oneamuno«.TheMuchSam,&c., 
 
 * Jones V. Jones, ante. In Mc- Co., 1 Nev. 215 ; State v. Atkinson, 
 Minn v. Whelan, 27 Cal. 300, it was 24 Vt. 448; White v. Halliday, 11 
 held that where a certificate of sale Tex. 606. 
 
 by a tax collector is to Michael Dun- ' Green •«. Forbene, 2 La. An. 957. 
 don and the deed is to Patrick Mi-
 
 196 EVIDENCE. [chap. IU. 
 
 Miitud tt) lie dt)niiaiit, Avithoiit assertion, for more than 
 twenty years.' 
 
 Sec. 74. Presumption of a Grant. 
 
 Ai'tt'r pc'JiccuhU' and nnintcrrupted adverse possession of 
 land for the period provided by statute for acquiring the 
 title to land by adverse possession, a grant will generally 
 be presumed.^ But in such cases mere length of posses- 
 sion, however great, unless the possession is for a })eriod as 
 long as that required by the statute to constitute a bar, 
 will not bo suiKeient. But where there has been a long and 
 peaceable possession of land consistent icith the grant to be pre- 
 sumed^ and there are other circumstances icJiich make it reason- 
 able to believe that such grant was actually inade, l)ut through 
 great lapse of time or other circumstances the evidence of 
 such grant is probably lost or destroyed, then the length of 
 possession and tJie auxiliary circumstances should be allowed 
 to go to the jur}', and they should be permitted to pass upon 
 the question whether a grant has been made or not. ^ But 
 such presumption may be repelled by parol proof where the 
 presumption is raised by parol evidence,^ or by the produc- 
 tion or proof of the contents of an instrument under which 
 the possession was held, which repels the presumption of a 
 grant.* In order to raise the presumption of a grant from long 
 possession, it is not necessary that the possession should have 
 always been in the presumptive grantee.^ In order to warrant 
 a jury in presuming a grant, it is not necessary that they should 
 find that a deed or grant h;is been actually executed, but with- 
 out really believing that a grant has been made, they may 
 presume its existence for the purpose of quieting title.' 
 Such presumptions, however, of conveyances of corporeal 
 
 ' Geiger v. Miller, 24 Penn. St. Hui-st v. McNeil, 1 Wash. (U. S.) 
 
 100. 70 ; Jefferson Co. v. Ferguson, 13 
 
 » Rocker v. Perkins, 14 Wis. 79 ; 111. 33. 
 
 Brundt V. Ogden, 1 John. (N. Y.) « Glass v. Gilbert, 58 Penn. St. 
 
 156. 266. 
 
 ' To\\-n.«end v. Do\vner, 32 Vt. 183. ' Eldridge v. Knott, 1 Cow. 214 ; 
 
 * English V. Register, 7 Ga. 387. Deeble v. Linehan, 12 Ir. L. R., N. 
 
 * Nieto V. Carpenter, 21 Cal. 455. S. 1 ; Williams v. Donell, 2 Head. 
 See also Farrar v. Men-ill, 1 Me. 17 ; (Tenn.) 695.
 
 SEC. 74.J PRESUMPTIONS. 197 
 
 hereditaments are seldom made, except when a title has been 
 shown by the party who calls for the presumption, which is 
 good in substance, but is lacking in some collateral matter 
 necessary to make it complete in form,^ or where the law 
 has vested the title in him by adverse possession. While the 
 presumption of a grant from the State will not be made from 
 a simple occupancy sufficient to acquire a title by adverse 
 enjoyment, as against an individual, yet it seems now to be 
 well settled that, where the adverse claim could have had a 
 legal commencement, a legal commencement may be pre- 
 sumed after long-continued peaceable enjoyment, accompa- 
 nied by the usual acts of ownership.^ Grants of charters and 
 acts of the legislature even have thus been presumed and 
 found by juries.^ And upon the same principle the long 
 enjoyment of duties, tolls, etc., if the nature of the case ad- 
 mits of it, has been held to warrant the presumption of any 
 facts necessary to give them validity.* And it has even been 
 held that a series of acts of ownership exercised by an adjoin- 
 ing owner upon the seashore for a long period of time aflbrd 
 sufficient evidence for a jury to presume a grant from the 
 sovereign to one of his ancestors.^ A right by grant to ease- 
 
 ' Doe 1^. Cooke, 6 Bing. 179. draws, 3 M. & R. 329 a; Att'y-Gen. 
 
 "^ Mayor of Hull v. Horner, 1 v. Emeline Hospital, 17 Beav. 366 ; 
 
 Cowji. 102 ; R. V. Brown, cited 1 Devine v. Wilson, 10 Mo. P. C. 527. 
 id. 110 ; Mather v. Trinity Church, * Mayor of Exeter v. Warren, 1 
 
 3 S. & R. (Penn.) 509. In McCarty Q. B. 801 ; Gaun v. Free Fishers of 
 
 V. McCarty, 2 Strobh. (S. C.) 6, it Whitstoph, 20 C. B., N. S. 1 ; Mills 
 
 was held that, though an act of the v. Mayor of Colchester, L. R., 2 C. 
 
 legislature after twenty years' pos- P. 476 ; Bryant v. Foot, L. R., 2 Q. 
 
 session and use may be presumed B. 161 ; Lawrence v. Hitch, 3 id. 
 
 yet that the principle is exclusively 352. 
 
 confined to cases in which the legis- ^ Beaufort v. Mayor of Swansea, 
 
 lature miglit act, and cannot ap2)ly 3 Exch. 413 ; Malcomson v. O'Dea, 
 
 whei-e, from the constitution or a sort 10 H. L. Cas. 593 ; Shephard v. 
 
 of common law of the State, the leg- Payne, 3 N. R. 5S0 ; Pelham v. Pick- 
 
 islature never has acted and never ersgill, 1 T. R. 66. In Archer «. 
 
 w'M act. Sadler, 2 H. & M. (Va.) 370, a quiet 
 
 ^ Mayor of Hull v. Homer, ante ; possession of sixty years ; in Hunks 
 
 McCarty 1). McCarty, arafe; Palmer v. Tucker, Tayl. (N. C.) 157, of 
 
 V. Hicks, 6 John. (N. Y.) 33 ; Gi-imes forty years, and in AUston v. Saun- 
 
 V. Bastrop, 26 Tex. 310; Taylor v. ders, 1 Bay (S. C), 26, forty-seven 
 
 Watkins, 26 id. 688 ; Walker v. years was held sufficient to raise a 
 
 Hanks, 27 id. 535 ; Lopez v. An- presumption of such a grant.
 
 198 EVIDENCE. [CIIAP. HI. 
 
 mcnts and incorporeal hcreditununibs may be presumed from 
 an adverse user i'or the period fixed by statute for the 
 acquisition of a title to haid by adverse user.^ Thus, by 
 such advei-se user the right to a private Avay is acquired, the 
 j)rcsunipti()U Itciug Irom such adverse and undisturbed user 
 tliat the riijht passed to the i)erson using it by a regular 
 tyrant.* aiul the same rule applies to all species of easements 
 and incorporeal rights to which the Statute of Limitations does 
 not api)lv. But sucli a presumption does not necessarily 
 arise from mere length of possession in reference to corporeal 
 subjects, as lands and tenements, because in reference to them 
 the Statute of Limitiitions has made all the provisions which 
 the law deems necessary for quieting the title. But, as has 
 already been stated, length of possession may, in connection 
 with other circunistances, be proved to perfect the evidence 
 of title to lands, and the longer the possession, the stronger is 
 the presumjjti'o)i.^ But a possession of lands for a less time 
 than that fixed l)y the statute for quieting the title will not 
 raise a presumption of a grant, because it would amount to 
 an evasion of the statute.* But when an actual transfer of 
 title is to be made out, of which the deed or other documen- 
 tary evidence has been lost, is relied upon, and is to be made 
 out either in whole or in part by secondary evidence, length 
 of possession, like any other circumstantial fact, is admissible 
 as coiToborative evidence of such transfer, and is no more 
 material to the main fact than any other supposable circum- 
 stance ; and possession for a shorter time than that prescribed 
 in the Statute of Limitations is admissible, although, as pre- 
 viously stated, the longer the possession, the stronger is the 
 j)resuiiiption arising from that fact.® " But," says Gould, J., 
 in tlie case last cited, " where length of time is relied upon 
 as a presumptive bar, that is, where mere length of posses- 
 sion is the only lact required to be proved, and is of itself 
 
 ' Hill V. Crosby, 2 Pick. (Mass.) ' GorLD, J., in Sumner v. Child, 
 46G ; Livett v. Wilson, 3 Bing-. 11,5. 2 Conn. (529. 
 
 * Com.v.Low,3Pi(;k.(Ma-SH.)408; * Ten-ill v. Herron, 4 J. J. Mar. 
 "Wright V. Freeman, 5 H. & J. (Md.) (Ky.) 516. 
 
 497. «■ GooLD, J., in Sumner v. Child, a 
 
 Conn. 629.
 
 SEC. 75.1 PRESUMPTIONS. 199 
 
 the conclusive fact from which ii title is to be peremptorily 
 presumed, upon the principle of quieting possession, and 
 whether an original title is actually believed to have existed 
 or not, the subject in controversy always is, and must be, an 
 incorporeal right. 
 
 VI 
 
 Sec. 75. Of Conveyance. 
 
 From a long-continued possession a conveyance to the 
 occupant of land may be presumed,"^ and that all acts neces- 
 sary to give it effect were done.-^ Especially is this the case 
 where the occupant exercised all the acts of ownership, paid 
 the taxes, etc.^ Where there has been long possession of land 
 under a deed by one who executes it as executor, a will will 
 be presumed to have existed in order to coufirin the title of 
 the grantee f and where a sale under a statute had been made 
 by a trustee, and the grantee had been in possession for fifty 
 years, it was held that the jury might presume that the trus- 
 tee conveyed with license.^ So, where there had been a similar 
 possession under a deed executed by an agent, it was pre- 
 sumed that the ao:ent was authorized to execute the deed.' 
 So, where a deed was executed of lands sold for taxes, it 
 was presumed that the requisite formalities were observed 
 to give validity to the sale.® But this is not the case unless 
 there has been long possession under the deed, and, where 
 twenty-three years after the execution of a collector's deed, 
 the grantee took possession for Jive years, it was held that 
 no presumption as to the validity of the deed could be raised 
 therefrom.^ This presumption is made between private in- 
 
 ^ Gray v. Gardner, 3 Mass. 399 ; ^ Brattle Square Church v. Bul- 
 
 Bunce v. Walcott, 2 Conn. 27 ; Mc- lard, 2 Met. (Mass.) 263 ; Valentine 
 
 Donald v. McCall, 10 John. (N. Y.) v. Piper, 22 Pick. (Mass.) 85. 
 
 377. " Cheney v. Watkins, 1 H. & J. 
 
 2 McNair v. Hunt, 5 Mo. 300. In (Md.) .527. 
 
 this case 30 years. Newman v. ^ Maverick v. Austin, 1 Bailey (S. 
 
 Studley, 5 id. 291. In this case 26 C), .59. 
 
 years. Thompson v. Carr, 5 N. H. * Thompson v. Carr, 5 N. H. 510. 
 
 510. A separate possession of lands '' Jarboe v. McAtee, 7 B. Mon. 
 
 held in common, raises a presump- (Ky.)279. 
 
 tion that a partition deed was exe- * Cuttle v. Brockway, 24 Penn. 
 
 cuted. Hepburn v. Auld, 5 Cr. (U. St. 145. 
 
 S.) 262. ' Richardson v. Dorr, 5 Vt. 9.
 
 200 
 
 KMDKXCE. 
 
 [CIIAP. III. 
 
 ilivi.liials in tiivoi of :i party who has proved a right to the 
 ],oiiclicial owiKM-shii) of property, and 2vh0.se posscs^^ion has 
 hi-en auuiislrnt with the existmce 0/ such a conveyance as is to 
 hf presumed, especktlli/ where his possession would have been 
 nnhirful cvcejUfoi- such a conveyance} But ^vherc the original 
 pos-sossion of tiic hmd may be accounted for witliout there 
 having been a conveyance, it is proper for the jury to pre- 
 .suni«' a conveyance or not, according to their bchcf f and it 
 seems that a conveyance may be presumed, even though l)y 
 law deeds arc recjuircd to be recorded, and the records aflbrd 
 no evidence of such a deed.^ 
 
 " Hammond V. Cooke, ti Bing. ISO. 
 
 » Fenwick v. Reetl, 5 B. & A. 233. 
 
 » In Beauland V. Hurst, 1 Price, 
 475, there was an act for registering 
 deeds and conveyances in the West 
 Riding of Yorkshire, on which act 
 the (inestion arose, declares that 
 they shall be recorded, in order to 
 protect the grantee against subse- 
 quent Ixmafideiisdes and mortgages. 
 It is nearly the same as our general 
 i-egisti'y acts in the United States. 
 In that ca.se, a grant of coal in the 
 West Riding of Yorkshire was 
 sought to be presumed from circum- 
 stances. This was resisted on the 
 ground that the registry alone should 
 speak ; and there was no registry. 
 The omission was relied on as ef- 
 fe(;tually repelling all presumption 
 in the ca.se. The point does not ap- 
 pear to have been decided. But the 
 (piestion at the trial was left to the 
 jury by Bailey, J., and on the argu- 
 ment at bar. Rex ?) Long Buckby 
 (7 East, 45) was cited, and appears 
 I0 be conclusive, that such a case 
 presents an fair a subject of pre- 
 sumption as any other. In the lat- 
 ter ca,se an indenture of apprentice- 
 ship had Vieen lost, and was to be 
 prov'^l by parol ; but there was no 
 eNndenre that it had ever been 
 
 Htumpe<l, and no registry of that 
 
 fact at the stamp-office, where it 
 
 must have appeared, if there had 
 been no irregularity. But after 
 nearly twenty years, during which 
 the indentures had been acted upon 
 as valid, the court held that the evi- 
 dence of non-registry was not suffi- 
 cient jjer se to repel the presump- 
 tion, but they would rather suppose 
 that the paper had been stamped, 
 and that the proper office had omit- 
 ted the registry by mistake. This 
 was a case where, without a stamp, 
 the indentures would have been a 
 nullity to all intents, and where, in 
 the regular course of things, there 
 must have been a registry. It was 
 surely much stronger against the 
 presumption than the omission to 
 register a deed of conveyance. The 
 latter was valid as against the party 
 without registry ; and the grantee 
 being in possession, they would be 
 valid against all the world, pur- 
 chasers and mortgagees included. 
 Gouverneur ?'. Lynch. 2 Paige Ch. 
 (N. Y.) 300, 301, and the cases there 
 cited. Neither are the registering 
 acts imperative, nor is there, in case 
 of a deed, any great danger in omit- 
 ting to register. It is entirely op- 
 tional with the party . and if pur- 
 chasers or mortgagees are uninjured 
 by lack of constructive notice, none 
 others can complain. Where notice 
 alone is the object, it is given by a
 
 SEC. 75.] 
 
 PRESUMPTIONS. 
 
 201 
 
 The presumption of a conveyance, as well that all neces- 
 sary formalities were observed in making it, maybe rebutted 
 by proof tending to a contrary conclusion,^ and, while ancient 
 deeds under which the grantee has entered into possession 
 are to be upheld, although defective in form or execution,^ 
 yet a title cannot be presumed to have been perfected where 
 deeds showing a defective title are produced^ when the ori- 
 gin of the possession is accounted for without the aid of a 
 grant, or conveyance, and it is consistent with the fact of 
 there having been no conveyance, stronger evidence than 
 mere possession is required to warrant a jury in finding that 
 a conveyance has been made,* and this rnle prevails where a 
 right is claimed from mere user, without any trace of the 
 commencement of it, the title being referable to prescrip- 
 tion rather than a grant. ^ 
 
 A presumption of a grant, or conveyance, can only arise 
 where there has been an exclusive occupancy as owner ; and 
 where the occupancy is casual and general and does not 
 exclude the real owner, it cannot be raised,^ nor can it be 
 
 change of i)ossession to the grantee ; 
 and an absolute deed may ordinarily 
 be withheld from the i-ecord, with- 
 out any danger. Indeed, this is 
 often so in practice. And it follows 
 that there is nothing in the omission 
 to register necessarily inconsistent 
 with the common presumption which 
 involves the previous existence and 
 loss, and may equally well include 
 the non-registry. 
 
 The law presumes a conveyance 
 where there has been long-continued 
 possession of land under a claim of 
 title, and the parties are shown to 
 have acted as though a deed had 
 been given. Wendell v. Moulton, 
 25 N. H. 41. Over twenty years' 
 possession is held in South Carolina 
 to raise the presumption of a grant. 
 Thompson v. Peake, 7 Rich. (S. C.) 
 353 ; Kimbrall v. Walker, 7 id. 422. 
 The presumjition of law is founded 
 xipon a fair presumption of fact, and 
 
 is frequently resorted to to supply 
 the place of lost deeds. Demeyn v. 
 Legg, 18 Barb. (N. Y.) 14; Simp- 
 son V. Hyatt, 1 Jones L. (N. C.) 
 518 ; Spears v. Oake.s, 4 Rich. (S. C.) 
 347. Adverse possession of the 
 land must be shown before any pre- 
 sumption will be made in favor of 
 the claimant. Wadsworthville School 
 V. Meetze, 4 id. 50. Permissive pos- 
 session will raise no such presump- 
 tion. Roxbury v. Huston, 37 Me. 
 42. 
 
 1 Chiles V. Conley, 2 Dana (Ky.), 
 21 ; Ladd v. Campbell, 32 Penn. St. 
 250. 
 
 " Hill V. Lord, 48 Me. 83. 
 
 ^ Owings V. Norwood, 2 H. & J. 
 (Md.) 96. 
 
 * Fenwick v. Reed, 5 B. & Ad. 
 232 ; Blewitt v. Tregonning, 3 id. 
 544. 
 
 ^ Blewitt V. Tregonning, aide. 
 
 ^ Bethum v. Turner, 1 Me. 111.
 
 202 
 
 EVIDENCE. 
 
 [CIIAr. III. 
 
 niist'd wlicro there are rirtiiiustaiK-e.s whieli rebut it, as 
 where the hiiul oecupieil l)eh)iiir.s to the Slate, or where the 
 riijht exereised is one which tlie State only can grant,' nor 
 where the right exercised is a common or natural right,^ nor 
 where it appears that the party might, if he chose to do so, 
 pniducf the deed.' 
 
 Sec. 76. Official Acts. 
 
 Every otlieer acting under the sanction of an oath, or in 
 whom the government reposes a trust, is presumed to have 
 done his duty until the contrary is proved.* and this princi- 
 ple applies not only to ])r()ceedings again.^t't an officer, but 
 also to an action against the right of an individual derived 
 through the act of such officer f and a person who alleges a 
 Ijrcach of official duty must show every fact necessary to 
 estal)lish such breach.^ This rule is in accordance with and 
 is embodied in the maxim. Omnia praesumunlur rite esse acta, 
 and is regarded as one of the most impoilant presumptions 
 of the law." In obedience to this presumption, the burden 
 is always upon the party alleging it, to show a neglect of 
 official duty^ or irregularity in its performance.* Thus, if a 
 clerk of court has no authority' to administer an oath out of 
 court, jurats attached to papers signed by him as clerk will 
 
 ' Rhodes V. "Whitehead, 27 Tex. 
 304 ; A.shley r.' Eastern R. R. Co., 
 5 Met. (Mass.) 368. 
 
 ' Frazicr r. Brown, I'J Ohio St. 
 204. 
 
 ' BroNN-no v. Thompson, 4 Q. B. .543. 
 
 * S^jniiett V. State, 17 Ti-x. 308 ; 
 Hartwfll V. Root, 19 John. (N. Y.) 
 34.') ; Kr-Ufy v. Creer, 53 Penn. St. 
 302 ; MfMahon v. Davison, 12 Minn. 
 357 ; Guy i'. Wa.'<hl)urn, 23 Cal. Ill ; 
 Dawkins v. Smith, 1 Hill (S. C.) Eq. 
 3»J'J; Mercer v. Doe, 6 Ind. 80; 
 Ellig V. CaiT, 1 Bush (Ky.), 527; 
 Jenkms r. Parkhill, 25 Ind. 473 ; 
 8<-hermerhoi-n v. Talman, 14 N. Y. 
 43 ; Kimball r. Lamprey, 19 N. H. 
 409 ; Walley v. Calloway Co. Court, 
 
 1 Mo. 447 ; Tademeir v. Aspinwall, 
 43 111. 401 ; Hancock v. Eastern 
 River Lack., &c., Co., 20 Me. 72; 
 Leas V. Polk Copper Co., 21 How. 
 (U. S.) 493. 
 
 " Hickman v. BofFman, 1 Hard. 
 (Ky.) 348. 
 
 " Craig V. Adair, 22 Ga. 373. 
 
 ' Taylor on Ev. (7th ed.) 156. 
 
 " Dobbs V. Justices, &c., 17 Ga. 
 624. 
 
 " Palmer v. Baling, 8 Cal. 384 j 
 State V. Howard, 10 Iowa, 101 ; 
 Russell V. Beebe, Hemp.st. (U. S. C. 
 C.) 704 ; Ross v. Read, 1 Wheat. (U. 
 S.)4S2 ; Mintcr v. Cromelin, 18 How. 
 (U. S.) 87 ; United States v. Arred- 
 ondo, 6 Pet. (U. S.) 691.
 
 SEC. 76.] PRESUMPTIONS. 203 
 
 be presumed to have been verified in court.^ So where an 
 officer is required by law to give notice of certain facts, it 
 will be presumed that he gave such notice;^ or where the law 
 requires that certain facts should be established before he does 
 certain acts, or permits them to be done, that the proper 
 evidence was furnished him ;^ or when he docs a certain act 
 which would be a violation of duty unless certain terms or 
 conditions had been performed, it will be presumed that 
 such conditions were performed.^ Where an officer is re- 
 quired by law to do certain acts before he enters upon the 
 discharge of his duties, as to be sworn, ^ to give bonds, etc.,^ 
 after he has entered upon the discharge of such duties, it 
 will be presumed not only that he was duly appointed, but 
 also that he had complied with all the statutory requirements,''^ 
 although there is nothing in the records^ or in the returns 
 made l)y him to show the fact.^ But this presumption Avill 
 not be permitted to sustain a vital jurisdictional fact,^°norto 
 sustain acts done by him outside of or contrary to the usual 
 and well recognized functions and duties of his office." But 
 where the act is w'ithin the functions of his office, it will be 
 presumed that all preliminary steps requisite to give validity 
 to his acts had l)een taken, ^^ unless ujDon the face of a return 
 or report made by him, or of a record of his proceedings^ 
 there is something which repels such a presumption. '^ 
 
 ' Schermerhom v. Talman, 14 N. * Nelson v. People, 23 N. Y. 293. 
 
 Y. 93. « Hutchings v. Van Bokkelin, 34 
 
 ' People V. Phenix Bank, 4 Bos. Me. 126. • 
 
 (N. Y.) 363. ' Jones ■w.Minisbach, 26 Tex. 235 ; 
 
 => Forsaith v. Clark, 21 N. H. 409; McCutchen v. Pratt, 22 Wis. 561. 
 
 Hart V. Young-, 3 J. J. Mar. (Ky.) ^ State v. Halstead, 18 N. H. 59. 
 
 408 ; Webber v. Gottscbalk, 15 La. ° Shorey v. Hussey, a7it€ ; Alle- 
 
 An. 376. g-liany v. Nelson, 25 Penn. St. 332. 
 
 * Titus V. Kimbro, 8 Tex. 210 ; " Sheldon v. Wright, 7 Barb. (N. 
 
 Lackawanna Iron Co. v. Fales, 55 Y.) 39. 
 
 Penn. St. 90 ; Kilpatrick v. Frost, 2 " Jones r. Minisbach, 26 Tex. 235 j 
 
 Grant's Cas. (Penn.) 168. In Shorey Houston v. Perry, 3 Tex. 390. 
 
 V. Hussey, 32 Me. 579, it was held " New Orleans v. Halpin, 17 La. 
 
 that, where the law required an of- An. 185 ; Palmer v. Boling-, 8 Cal. 
 
 ficer serving a writ of replevin to 384 ; State v. Howard, 10 Iowa, 101 ; 
 
 take a replevin bond, it %vill be pre- Plank Road Co. v. Bruce, 6 Md. 457. 
 
 sumed that he took such bond, al- " Moreau v. Branham, 27 Mo. 
 
 though his retm-n upon the wi-it 351 ; Ward v. Barrows, 2 Ohio St. 
 
 does not show the fact. 241.
 
 204 KVIDENCE. [CIIAP. HI. 
 
 The general rule univers;illy applied in all eivilized coun- 
 tvWs, iri that aetii wliieh purport to have heeu done by public 
 otlieei-b in their ollieial ea[)aeity, and within the scope of their 
 duty, will be presumed to have been regular ajid in accord- 
 ance with their authority, until the contrary appears.' Thus 
 it will bo presumed in the first instance that municipal 
 authorities have complied "vvith all the formalities of the law 
 in making contracts f that officers have complied with the 
 law in the drawing of jurors f that an assessment was made 
 at the proper time ;* that all entries, including those upon 
 the margin, and cancellations or interlineations not amounting 
 to a nuitilation, in pul)lic records, were regularly and honestly 
 made.^ So, where the statute requires that a seal must be 
 attached to a ylR'rifi''s deed to make it vahd, a court is pre- 
 cluded from presuming that it was once sealed, by an answer 
 alleging that the sheriff omitted the seal by mistake.^ So, 
 while a general return by an oflicer, '• executed," will raise a 
 presumption that the process was rightly executed, yet, if the 
 manner of its execution is set forth, its accuracy may be inquired 
 into by the court 7 But in all cases w^here the return of an offi- 
 cer is attacked, the burden of estal)lishiug the falsity of any of 
 the matters recited therein is upon the party attacking it.® 
 
 Where a return of a survey of lands is made by an officer 
 api)ointed for that purpose, having every ap[)earance of reg- 
 ularity, it will be presumed to be regular until the contrary 
 is proved,^ and cannot be questioned by a mere trespasser ; "^ 
 
 ' Ross 75. Rop(l, 1 Wheat. (U. S.) and then proceeded to state the 
 
 482 ; Dunlop v. Munroe, 1 Cr. (U. places in whi(;h it was advertised, 
 
 S. C. C.) 536 ; United States v. Ai-- the law requiring it to be advertised 
 
 redondo, 6 Pet. (U. iS.) (391 ; Nimter and sold in a public place, it was 
 
 V. Cromineliii, IS How. (U. S.) 87. held that the court would presume 
 
 * New Orleans v. Halpin, 17 La. that the places named were public 
 An. 185. places. 
 
 * State V. Howard, 10 Iowa, 101. * Morse v. McCall, 13 La. An. 315. 
 
 * Palmer v. Boling, 8 Cal. 484. And the same rule prevails where a 
 
 * Rice V. Cunningham, 29 Cal. 492. party claims that an officer has not 
 
 * Moreau v. Branham, ante. discharged his duty. State v. Met- 
 ' Ca.se V. Calston, 1 Met. (Ky.) ton, 8 Me. 417. 
 
 145. In Drake v. Mooney,31 Vt. 617, » Harris'?). Burham, 1 Wash.(U.S.) 
 
 ■where an officer stated in his return 191 ; .Iew<;lU). Porche, 2 La. An. 148. 
 
 upon an execution, that he adver- '" Trotter -?'. President, &c., 9 Mo. 
 
 tised the i.rn])erty im the law directs, 69.
 
 SEC. 77.] PRESUMPTIONS. 205 
 
 and if, in making a survey, they remove monuments estab- 
 lished under a former survey, it will be presumed that the 
 former survey was wrong and that the latter one is right.^ 
 Such surveyor's knowledge of the art of surveying need not 
 be shown, as, from the circumstance of his appointment, it 
 will be presumed."' 
 
 Sec. 77. As to jurisdiction of courts. 
 
 This presumption as to the regularity of official acts, so 
 far as the action of courts of record is concerned, especially 
 as to their jurisdiction, where there is nothing on the face of 
 the record to defeat it, is conclusive.^ But in a great ma- 
 jority of instances it may be controverted, and only operates 
 as prima facie proof. In accordance with this ride, a court 
 which has taken jurisdiction of a case is presumed to have 
 had before it proper evidence of the facts necessary to give 
 jurisdiction, and evidence of the contrary will not, after the 
 lapse of time, be admitted.* But in the case of courts of 
 limited jurisdiction, where the transaction is recent, the facts 
 necessary to give it jurisdiction should appear.^ 
 
 But when the jurisdiction of an inferior tribunal is estab- 
 lished, the maxim, Omnia praesumuntur rite esse acta^ applies 
 to all its proceedings, as well as to courts of general jurisdic- 
 tion,^ and it will be presumed that it acted rightly.' Thus, 
 
 * Wilder v. St. Paul, 12 Minn. 192. officer, is a court of limited jurisdic- 
 ' Ashe V. Lanhan, 5 Ind. 435. tion, and everything- necessary to 
 ' Peacock v. Bell, 1 "Wm. Saund. make it such a court must be affir- 
 
 74 ; Butcher v. Bank of Brownsville, matively shown, and no presump- 
 
 2 Kan. 70. When an entry of judg- tion can be made in its favor. Lam- 
 
 ment is so made that its terms are pert v. Lithg-ow, 1 Bush (Ky.), 176. 
 
 applicable to a case in which the That this presumption does not ap- 
 
 court had no jurisdiction, as well as ply in the case of courts exercising" 
 
 to one within its jurisdiction, it wiU a special or merely statutory juris- 
 
 be presumed that it acted within its diction, see Graham v. Whitley, 26 
 
 jurisdiction, Bumpus v. Fisher, 21 N. J. L. 254 ; Swain v. Chase, 12 
 
 Tex. 561. Cal. 283. 
 
 * Sprague v. Litherberry, 4 Mc- * State v. Hinchman, 27 Penn. St. 
 Lean (U. S.), 442; Grimstead v. 479. 
 
 Foote, 26 Miss. 476. ' Outlaw v. Davis, 27 111. 467 ; 
 
 ' Goulding-'?!. Clark, 34 N. H. 148. McGreers v. McGreers, 1 S. & P. 
 
 Aboard of aldermen, sitting as a (Ala.) 30; Merritt v. Baldwin, 6 
 
 court to try charges against a city Wis. 439; Thorp v. Com., 3 Met.
 
 20G EVIDENCE. [chap. 111. 
 
 whi-re the cvidcucc failed to show, affirmatively, that an ad- 
 iniiiistmtor's bond wa.s approved, in writing, by the judge of 
 l)iol)ate, and the contrary did not appear, — the case disclos- 
 ing that all the other necessary steps were taken with strict- 
 uess and accuracy ; that the sale was public ; that the pur- 
 chaser entered innnediately and held the premises lor more 
 than 20 years ; that the law required such ap[)roval before 
 the bond could be tiled, and that the bond was actually filed, — 
 the law fully authorized the conclusion that all was done 
 which was reciuired to give the purchaser a perfect title.' 
 ^>o, where a license has been granted, it is presumed that the 
 court had the proper evidence before it.^ So, where a letter 
 of guardianshii), regular on its face, is issued by a court hav- 
 ing jurisdiction in the premises, it will be presumed that all 
 the necessary i)reliniinary requirements have been complied 
 with, and that it was legally issued.^ So, where a bond 
 has ln'cn given, which the law requires should be approved 
 by the court, such approval will be presumed, even though 
 there is no written memorandum thereof on the boud.^ It is 
 presumed that a court of record of another State had juris- 
 diction of the subject-matter in controversy ;^ but such a pre- 
 sumption will not be made where there is evidence to the 
 contrary, nor where the record fails to show notice to the 
 defendant.^ 
 
 Sec. 78. Regularity of Appointment of Officers. 
 
 If a person acts as a public officer, as a magistrate, judge, 
 etc., proof of such fact is 'prima facie evidence that he was 
 <luly elected or appointed to such office,''' and that he had the 
 re(iuisite authority as such to do the acts in question,^ and 
 
 (Ky.) 411; State «. Farnsh, 23 S. P. State v. Lewis, 22 id. 564 ; 
 
 Mis.s. 483. Thi.s presumption ap- Cromelieu v. Brink, 29 Penn. St. 
 
 plies to proceedings in a probate .522 ; Morgan r. State, 12 Ind. 448. 
 
 court. Richmond w. Hudenson, 18 * Cromelieu v. Brink, ante. 
 
 ^^^- 449. Buffum v. Stimpson, 5 Allen 
 
 ' Austin V. Austin, 50 Me. 74. (Mass.), 591. 
 
 • Com. V. Bolkom, 3 Pick. (Mass.) • Com. -w. Blood, 97 Mass. 438. 
 281. ' Rex •». Verelst, 3 Camp. 432. 
 
 * Den tJ. Gaston, 25 N. J. L. 615 ; • Uray v. Hoyapanubby, 18 Miss. 
 
 i
 
 SEC. 
 
 78.] 
 
 PRESUMPTIONS. 
 
 207 
 
 lias complied with all the requiremeuts of the statute as cou- 
 clitions precedent to entering upon the discharge of their 
 duties.^ Consequently it is sufficient prima facie evidence 
 to show that a person acted as a public officer without proof 
 either of his appointment or election, and the burden is upon 
 the person questioning his right to act as such, to prove that 
 he had no authority to act as such, and this applies to attor- 
 neys,^ justices of the peace, constables, ministers of the 
 gospel,^ officers of any branch of the revenue, or indeed any 
 public officers. Thus proof that a person acted as sheriff,^ 
 deputy sheriff,^ commissioner for the taking of depositions,^ 
 master in chancery,'^ or indeed in any public office, is, in gen- 
 eral, sufficient proof of his authority to do so, until the con- 
 trary is proved ; and this rule obtains as well in actions in 
 favor of a public officer as in those agaiiist him.^ In an 
 early New York case** the defendant justified the taking of 
 
 452 ; Shelbyville v. Shelbyvdlle, 1 
 Met. (Ky.) 52 ; Devall v. Chappin, 
 15 La. An. 566 ; Landry v. Martin, 
 15 id. 1. 
 
 * Nelson v. People, 23 N. Y. 293 ; 
 Kilpatrick v. Froot, 2 Grant's Cas. 
 (Penn.) 168; Lackawanna Iron Co. 
 V. Fales, 55 Penn. St. 90. The rule 
 is, in reference to acts of officers, 
 where certain conditions precedent 
 ai'e asserted, that, when an officer 
 does an act which would be a viola- 
 tion of duty unless certain terms or 
 conditions had first been performed, 
 such performance will be presumed, 
 as between the individual and the 
 State, to have taken place. Titus 
 V. Kimbro, 8 Tex. 210. And the 
 same rule prevails as to conditions 
 precedent to be performed by an 
 officer befoi-e he enters upon the 
 discharg-e of his duties, and it will 
 be presumed that he was duly ap- 
 pomted or elected and qualified in 
 cases in which he is a party to the 
 record, if it is shown that he has 
 previously acted in the discharge of 
 the duties of such office ; and this 
 presumption remains until it is re- 
 
 moved by evidence. Hutchings v. 
 Von Bokkelen, 34 Me. 126. And it 
 would be obviously impolitic and 
 inconvenient to throw upon parties 
 the burden of showing, in the first 
 instance, that public officers, upon 
 whose acts they rely, were duly au- 
 thorized or qualified to perform the 
 act. 
 
 ^ Berryman v. Wise, 4 T. R. 366 ; 
 Brown v. Mims, 2 Const. Rep. (S. 
 C.) 235 ; Pearce v. Whale, 5 B. & C. 
 38. 
 
 * Goshen v. Stonington, 4 Conn. 
 209. As to justices and constables 
 see Berryman v. Wise, 4 T. R. 366 ; 
 Rex V. Gordon, 1 Lea. C. C. 515 ; 
 Turner v. Fendall, 1 Cranch (U. S.), 
 117. 
 
 * Bunbury v. Matthews, 1 C. & K. 
 382. 
 
 * James v. Brown, 5 B. & Aid. 243. 
 « R. V. Howard, 1 M. & R. 187 ; 
 
 R. V. Newton, 1 C. & K. 480. 
 
 ' Butler V. Ford, 1 C. & M. 662. 
 
 * Cannell v. Curtis, 2 N. Cas. 228 ; 
 M'Gahey v. Alston, 2 M. & W. 211. 
 
 8 Porter V. Luther, 3 John. (N. Y.) 
 431.
 
 208 EVIDENCE. [chap. III. 
 
 property as deputy sheriff under an execution, and on trial 
 ollered to prove himself a general deputy of the sheriff, by 
 reputation; the justice rejected the evidence, and required 
 him to produce his appointment, and upon cerlioraH. the 
 judgment was reversed upon this ground. Tiie same prin- 
 cipk^ has l)een apphed to the case of magistrates. Thus in 
 a Connecticut case' it appeared that a certain person had 
 been api)ointed a justice of the peace, and to prove that he 
 was duly qualified to act, a witness was oflcred to prove 
 that he had issued a writ and received the duty upon it. 
 This was held competent 2iS prima facie proof, although the 
 writ was not produced. So where a deed was i)roduced 
 which was acknowledged before a person styling himself a 
 justice of the Connuon Pleas, it was held that it would be 
 presumed that he was such, until the contrary was proved.^ 
 So, where a pei-son executed a warrant directed to him as 
 coroner, it was held that this was sufficient proof of his 
 authority without the production of his commission.^ So 
 the celebration of a marriage by a person styling himself a 
 minister of the gospel is prima facie proof of his authority 
 to do so.^ So, proof that the plaintitls acted as oflicers of a 
 revenue cutter was held sufiicient, prima facie, in an action 
 by them to recover their proportion of a forfeiture.^ So it 
 has l)een held that a person may be proved to be a collector 
 and trustee of a school district by reputation ;^ and the same 
 rule also applies to persons acting publicly as officers of a 
 corporation.' 
 
 ' Vemon'W. East Hartford, 3 Conn, it affirmatively. Newman •«. Tier- 
 
 475. See also Turner v. Field, 1 nan, 37 Barb. (N. Y.) 159. As to 
 
 Cranch (U. S.), 117. g?io wan-anto proceedings, see Peo- 
 
 » Williiik V. Miles, 1 Pet. (U. S. pie v. Cooke, 8 N, Y. 67 ; People v. 
 
 C. C.) 429 ; Clinton v. Beardsley, 38 Pearse, 27 N. Y. 45. 
 
 Barb. (N. Y.) 29. But where a per- ' Young v. Com., C Binn. (Penn.) 
 
 son justifies in an action for false 88. 
 
 imprisonment, upon the ground that * Goshen v. Stonington, 4 Conn, 
 
 he was a justice of the peace, and 209. 
 
 acting in his official capacity, it has * Lawyer v. Steele, 3 Wash. (U. 
 
 been held that he is required to S. C. C.) 464. 
 
 prove that he is not only de facto, ' McCoy v. Curtice, 9 Wend. (N. 
 
 but also f\p jurfi a justi(;e of the Y.) 17. 
 
 peace, and, as his official character ' United States Bank v. Dand- 
 
 is directly in issue, he must establish ridge, 12 Wheat. (U. S.) 70. 

 
 SEC. 78.] 
 
 PRESUMPTIONS. 
 
 209 
 
 How far this rule applies to professional men, suing or 
 being sued as such, is not very definitely settled. In the 
 case of attorneys, 1 clergymen,^ and surgeons,^ recoveries for 
 or against them in that capacity have been upheld upon 
 proof that they acted in that capacity, without proof that 
 they were so in fact. But Mr. Taylor, in his work upon 
 Evidence, vol. 1. p. 182 (7th ed.), says : " These cases seem 
 to rest not so nuich, if indeed at all, upon the presumption, 
 as upon the ground that the opposite party had, by his ad- 
 missions, either by word or deed, rendered it unnecessary to 
 prove the actual appointment.^ Li cases, therefore, ivhere 
 no such admission has been made, the safer, if not the Pieces- 
 sary course, will be to prove the appointment in the ordinary 
 manner." Modern practice and recent decisions seem to re- 
 quire such proof. In an English case,^ in an action brought 
 by a physician for defamation, where the slanderous words 
 denied the professional character of the plaintiff, proof that 
 he had acted as such, coupled with evidence of a Scotch 
 diploma, was held not sufficient to entitle him to a verdict. 
 " No doubt," said Lord Denman, " a person complaining 
 of a slander upon him in a particular character, must prove 
 that he possesses that character when the slander does not 
 admit it." 
 
 In the case last referred to, the court was equally divided 
 upon the question whether proof of acting as physician was 
 sufficient. But Mansfield and Heath thought that the 
 words of the slander, " Dr. Smith has upset all we have 
 done, and die he (the patient) must," implied an admission 
 of the character in which the plaintiff sued.^ 
 
 ' Berryman v. Wise, 4 T. R. 366. 
 
 » Bevan v. Williams, 3 T. R. 635, 
 n. (a). 
 
 ^ Gremaine v. Le Clerk, &c., 2 
 Camp. 144. 
 
 * Chambers, J., in Smith v. Tay- 
 lor, 1 N. R. 210. 
 
 ' Collins V. Camigu, 1 Ad. & El. 
 695. 
 
 * It may be observed, however, on 
 this case, that the question whether 
 acting- as a physician is sufficient 
 
 14 
 
 prima facie proof of being one, was 
 not directly decided, because the 
 plaintiff, not content with resting his 
 case on such evidence, proceeded to 
 prove that he had received the de- 
 gree of doctor of medicine from the 
 University of St. Andrew's ; and as 
 the court held that this did not en- 
 title him to practice in England, he 
 could not, of course, fall back upon 
 proof of practice uijon the legality 
 of which he himself had, by his 
 
 I
 
 210 
 
 EVIDENCE. 
 
 [ciiAr. III. 
 
 Ill >mli lutions where the (leclaratloii states, as matter of 
 iiuliieemeiit, that the [)hiiiitiirh()kl.s a certain office, or belongs 
 to a certahi trade or profession, no evidence is reciuired to 
 support the statement unless it is distinctly denied by the 
 di'leuilant's plea. 
 
 Enou'di has been said to illustrate the extent to which the 
 
 o 
 
 rule is carried, and it is proper to say, with reference to the 
 effect of this species of evidence, that, where the rights of 
 third persons are concerned, it is generally sullicient for 
 them to show tiiat the officer through whom or by whose 
 acts they claim, is so de facto, and the fact that he is not so 
 de jure caiuiol be shown to defeat or prejudice their rights.' 
 As to the [)recise species of evidence necessary to show 
 that a person is an officer de facto, which will i)reclude in- 
 Uniiv into the validity of his appointment or election, no 
 definite general rule can be formulated from the authorities, 
 a.«i, from the nature of things, each case must largely depend 
 iijjon its own peculiar circumstances. The mere claim to be 
 a [)ublic officer, and the performance of a single, or even a 
 number of acts in that character, will not necessarily in all 
 
 €\'idence, thrown doubt. In another 
 action of slander, brought l)y a col- 
 lector of tolls, the plaintiff was non- 
 suited on failing to prove his ap- 
 pointment to that office, but it does 
 not ai)]>ear that any evidence was 
 offered that he ever acted in that 
 capa<Mty. Sellors v. Till, 4 B. & C. 
 <t."»5. And the same observation ap- 
 pli<'s to the cases of Savage, 1 Doug. 
 3r)t], n. (4), and Cortis v. Kent Water- 
 works Co., 7 B. & C. 314, in the 
 foiTOer of which the plaintiff, who 
 sued a» a barrister, relied, not on 
 his jiractice, but on the book of the 
 Kociety of Lincoln's Inn, containing 
 the oilier for his call ; and in the 
 latter, a party, suing in the charac- 
 ter of ti-ea.surer to certain commis- 
 Bioners, proved his appointment to 
 the office. Still, these cases, though 
 not direct authorities, tend to show 
 what the practice has been, and so 
 far support the view that the rule 
 
 which renders evidence of acting 
 prima facie proof of due appoint- 
 ment, is confined to cases where the 
 parties occupy a public situation, 
 or, perhaps, where the question of 
 appointment is not directly at issue. 
 The case of R. v. Jones, 1 Lea. C. C. 
 74, where, on an indictment against 
 an apprentice for a fraudulent en- 
 listment, it was held that the in- 
 denture must be proved, is an 
 authority on neither side of this 
 question, for that decision rested on 
 the ground that, as the actual and 
 legal binding was the fact which 
 constituted the gist of the offense, 
 this could oidy be proved by the 
 best evidence. 
 
 ' Dotyi). Gorham, f) Pick. (Mass.) 
 487 ;• People v. Collins, 7 John. (N. 
 y.) 5549 ; Wilcox v. Smith, 5 Wend. 
 (N. Y.) 231 ; Mason v. Dillingham, 
 5 Mass. 170 ; Fowler v. Beebe, 9 
 John. (N. Y.) 231.
 
 SEC. 78. J PRESUMPTIONS. 211 
 
 cases constitute a person an officer de facto, but there must 
 generally be some color of appointment or election, or an 
 acquiescence on the part of the imblic for a length of time 
 which affords a presamption of such appointment or election. * 
 But where the person assuming to be an officer is himself a 
 party to the suit, and the only individual to be injuriously 
 iiffected by an inquiry into the validity of his official title, 
 proof of acts by him as such officer is, in his favor, merel}- 
 prima facie evidence of his being such.^ But in actions 
 against him, by proof of such acts, he is estopped from 
 denying his official character.^ It may be well here to say 
 that an officer de facto is one whose acts, though he was not 
 a lawful officer, the law, upon principles of policy and jus- 
 tice, will hold valid, so far as they invojve the interests of 
 the public and third persons ; and this is done where the 
 duties of the office were exercised : 1. Without a known 
 appointment or election, but under such circumstances of 
 reputation or acquiescence as were calculated to induce peo- 
 ple without inquiry to submit to or invoke his action, sup- 
 posing him to be the officer he assumed to be. 2. Under 
 color of a known and valid appointment or election, but 
 where the officer has failed to conform to some precedent, 
 requirement or condition, as to take an oath, give a bond, or 
 the like. 3. Under color of a known election or appoint- 
 ment, void because the officer was not eligible, or because 
 there Avas a want of power in the electing or appointing 
 body, or by reason of some defect or irregularity in its ex- 
 ercise, such ineligibility, want of power, or defect being un- 
 known to the public. 4. Under color of an election or 
 appointment by or pursuant to a public, unconstitutional 
 law, before the same has been adjudged to be such. 
 
 The acts of an officer appointed by and acting under and 
 pursuant to an unconstitutional law, performed before the 
 unconstitutionality of the law has been judicially determined, 
 
 * "Wilcox V. Smith, 5 Wend. (N. '^ Lawler v. Beebe, 9 Mass. 231 ; 
 
 Y.) 231. See State v. Carroll, 38 Cone v. Lawler, 10 id. 290. 
 Conn. 449, where it is held not ^ Hug-hes v. James, 3 J. J. Mar. 
 
 necessary in all instances that there (Ky.) 700. 
 should be a color of appointment or 
 election.
 
 212 EVIDENCE. [chap. III. 
 
 live valid Jid respects the })iil)lic and third persons, tis tlic acts 
 of an otiioer dc facto} lu order to constitute a person such 
 an otlieer lie must l)e in the actual possession of the othce 
 ;nid liavc the same under his control. If the officer de jure 
 is in possession of the otlice — ^ if the officer de jure is also 
 the officer de facto — then no other person can be an officer 
 de facto for that office. Two persons cannot be officers de 
 facto lor the same office at the same time.* 
 
 Sec. 79. Official sales. 
 
 Wlun' a public officer is required to sell property, either 
 at public or private sale, and as. a condition precedent thereto 
 certain .^teps are required to be taken, it will be presumed 
 that all such condilPons were complied with betbre such sale 
 was made.' Thus, in the al)sence of proof to the contrary, 
 u sherilf, at a sale of land under au execution, will be pre- 
 sumed to have complied with the requirements of the law 
 in not selling more than was necessary to satisfy the execu- 
 tion, if th(^ land was divisible.^ 
 
 So where the record of a constable's sale is silent as to 
 whether due notice was given of the sale or not, the court 
 will presume that the constable did his duty.^ 
 
 So, too, the presumiition is that a sheriff who sells prop- 
 erty on execution, has done his duty in previously making 
 a levy, and the fact will ])e deemed to be admitted, if no 
 objection is made at tlu; trial ;^ and even where property is 
 sold by a sherilf in another State, it will be presumed that 
 the deed given is in conformity with the laws of that State, 
 until the contrary is shown. '^ 
 
 Where a return shows a sale after appraisement, the latter 
 will be presumed Icffal.^ 
 
 So, too, although on a trial involving the validity of a 
 
 • state V. Carroll, ante. ^ Culbertson v. Milhollin, 22 Ind. 
 ' M'Cahon v. Commissioners, 8 3G2. 
 
 Kan. 437. « Smith v. HiU, 22 Barb. (N. Y.) 
 
 • Hewitt V. Stephens, .'J La. An. 65G. 
 
 G40 ; Culbertson v. Milhollin, 22 ' Sadler v. Anderson, 17 Tex. 245. 
 
 ^"'1- ^'52- « WaddeU v. Judson, 12 La. Ann. 
 
 • Banks v. Bales, 16 Ind. 423. 13.
 
 «EC. 80. j PEESUMPTIONS. 213 
 
 tax sale, a part only of the requisite proofs are positive and 
 direct, yet, if the suit is brought more than thirty years after 
 the sale, the jury are at liberty to presume that the tax was 
 duly authorized and assessed, and that all the other proceed-' 
 iiigs requisite to the validity of the sale were properly had.^ 
 
 Sec. 80. Payment. 
 
 When the existence of a claim is once established, payment 
 thereof is not presumed, except under peculiar circum- 
 stances, until after the lapse of twenty years. But the per- 
 son pleading payment is bound to establish it,'^ and the mere 
 circumstance that the creditor was poor or in embarrassed 
 circumstances, and that the del)tor was abundantly able to 
 pay when the debt matured, will not of itself raise or support 
 a presumption that the dclH is paid,^ although such evidence 
 is admissible as bearing upon the question in connection with 
 other circumstances ; and it has been held that evidence show- 
 ing that the debtor was poor and insolvent when the 
 debt matured, and for a consideral)le period afterwards, 
 tends to rebut the presumption of payment by the lapse 
 of twenty years.* In cases where there is no statu- 
 tory limitation, in the language of Lord Erskine,^ 
 
 ' Freeman v. Thayer, 33 Me. 76. 28 N. H. 75 ; Dalton v. Bethlehem, 
 
 ^ Stockton V. Johnson, 6 B. Mon. 20 id. 505 ; Andover v. Merrimac 
 
 (Ky.) 409; Clark v. Clements, 33 County, 28 id. 137; judgments, 
 
 N. H. 5(33; McKinney v. Slack, 19 Kennedy v. Denoon, 3 Brev. (S. C.) 
 
 N. J. Eq. 164 ; McLendon v Hamb- 470 ; Burton v. Cannon, 5 Harr. 
 
 lin, 34 Ala. 86 ; Buzzell v. Snell, 25 (Del.) 13 ; legacies, Hayes v. Whit- 
 
 N. H. 474 ; Witherell v. Swan, 32 all, 13 N. J. Eq. 241 ; mortgages. 
 
 Me. 247 ; Cauliield v. Sanders, 17 Sweetser v. Lowell, 33 Me. 446 ; or 
 
 Cal. 569 ; Yarnell v. Anderson, 14 any specialty del)t. King- v. Coulter, 
 
 Mo. 619; O'Brien v. Coulter, 2 2 Grant's Cas. (Penn.) 77 ; Shepard's 
 
 Blackf. (Ind.) 421; Hig-g-inson v. Appeal, 2 id. 402; or debt or 
 
 Mein, 4 Cranch (U. S.), 420; Young liability ai-ising- upon any contract, 
 
 V. Price, 2 Munf. (Va.) 534. This whether sealed or not. Clark v. 
 
 presumption has been applied in Clement, 33 N. H. 563. 
 
 the case of bonds, Tinsley v. Ander- ^ Alexander v. Butcher, 7 Hun 
 
 son, 3 Call (Va.), 329; Durham v. (N. Y.), 439. 
 
 Greenly, 2 Harr. (Del.) 124 ; Cottle * Farmer's Bank v. Leonard, 4 
 
 V. Payne, 3 Day (Conn.), 289 ; Bart- Harr. (Del.) 536. 
 
 lett V. Bartlett, 9 N. H. 398 ; Has- ^ In Hillary v. Waller, 12 Ves. 
 
 kell V. Keen, 2 N. & McC. (S. C.) 267. 
 160; taxes, Calebrooki). Stewartson,
 
 jll EVIDENCE. [chap. III. 
 
 " nianUintl, from the iiitiriuity :ui(l necessity . of their situa- 
 tion, nuLst, for the prescivution of their property and rights, 
 have recourse to some general prineiple to tulie the place of 
 iiiilivitlnal anil sjuritie belief,'' and as a con.sequenee, from 
 the lai).M' of twenty years from its maturity, without proof 
 of any eiri innstanee to show that its existence was admitted 
 or acknowledged, juries are to presume that a debt has ])ecu 
 paid, whether it is evidenced by writing under seal or not ; 
 and, while the court itself cannot make such a presumption, 
 a new trial will usually be granted if the jury disregards it.^ 
 This presumption l)cing founded upon public policy, although 
 a presumption of fact merely, is nevertheless regarded as of 
 such force that the facts relied upon for its rebuttal nuist 
 amount to more than mere belief deduced from the weight 
 of testimony being on that side, and must be of such a 
 character as would revive a debt barred by the Statute of 
 Limitations.- " An admission simply," says Wardlaw, J.,* 
 •' that a dcl)t has not been paid, will not be sufhcient unless 
 it be an admission amounting to an acknowledgment of a sub- 
 .si'stin'j UabiUty like that which would renew a debt barred by 
 the statute;" and especially would this be the rule in those 
 States where the statute provides that such a presumption 
 shall be raised, and there would seem to be no good reason 
 why the common-law })resumption should not have the same 
 force. '• Presumptions," says IIakpek, Ch.,' " must be made 
 against the well-known truth of the lact. If twenty years 
 have elapsed without payment of interest, or any acknowl- 
 edfjtncnt of a bond, we must presume it paid, notwithstand- 
 inf) tJie fullest conviction that it never has been jyaidy ^ The 
 law gives to this presumption an artificial and technical 
 
 ' Simpson, C. J., in Boyce v. Lake, was any evidence beyond the mere 
 
 17 S. C. 481. That the jury ami not lapse of time necessaiy ? 
 
 the court are to presume payment, " Boyce v. Lake, ante ; Stover v. 
 
 pee McBride v. Moore, Wri<rht Duren, 3 Strobh. (S C.) 500. 
 
 (Ohio), 524. Where a note and mort- « In Stover v. Duien, ante. 
 
 gage wei-e executed in 1858, due in * In Riddlehoover v. Kinand, 1 
 
 one year, and suit was not brought Hill (S. C.) Ch. 880. 
 
 to enforce it until 1880, it was held * McQueen v. Fletcher, 4 Rich. (S. 
 
 that very slight evidence would C.) Eq. 152 ; Pryor v. Wood, 31 
 
 eustain a finding of payment. Pat- Penn. St. 142. 
 tie V. Wilson, 25 Kan. 326. Qmre,
 
 SEC. 80.] 
 
 PRESUMPTIONS. 
 
 215 
 
 weight beyond that which it woukl naturally have as a mere 
 circinn.stance bearing on the question ot" payment, and the 
 evidence must be of such facts and circumstances as fairly 
 overcome it.^ If a debt is payable by installments, the pre- 
 sumption attaches to each installment as it becomes due.* 
 If, when the debt matured, the debtor was under any dis- 
 ability, proof of that fact will rebut the presumptiou,^ as if 
 he was absent from the Statc,^ or an intant,^ or from any 
 cause in a situation so that he could not be sued by the 
 creditor.^ Presumptions of this class do not arise against 
 the government.^ To rebut the presumption of payment 
 from the lapse of twenty years, it may be shown that the 
 debtor acknowledged the indebtedness as existing within that 
 time,^ or that he was so situated that the claim could not 
 have been enforced against him at law.^ 
 
 ' Walker x\ Wright, 2 Jones (N. 
 C.) L. 155; Herndou x\ Bartlett, 7 
 T. B. Mon. (Ky.) 449; Mori-is v. 
 Wadsworth, 17 Wend. (N. Y.) 103. 
 A statement made by the surety of 
 a debtor, aftei* the debt had ma- 
 tured, that the creditor had agreed 
 not to push him during his, the su- 
 I'ety's, life-time, being proved, was 
 held to rebut the presumption ai-is- 
 ing from the lapse of time. Fisher 
 V. Phillips, 4 Baxt. (Tenn.) 243. 
 
 " State V. Lobb, 3 Harr. (Del.) 421. 
 
 ^ Daggett v. Tallman, 8 Conn. IGS. 
 The time during which the War of 
 the Rebellion deranged the collection 
 of debts, or during which there was 
 an undertanding that payment 
 should not be enforced, will not be 
 reckoned as part of the twenty years. 
 Hale X). Pack, 10 W. Va. 145. 
 
 * Daggett V. Tallman, ante. 
 
 " Bartlett v. Bartlett, 9 N. H. 398. 
 
 « Dunlap V. Vail, 2 Cranch (U. S.), 
 180. 
 
 ■' United States n. Williams, 4 
 McLean (U. S.), 567. 
 
 ^ Arline t). Miller, 22 Ga. 320; 
 Nixon V. Bynum, 1 Bailey (S. C), 
 
 148 ; Livingston xi. Livingston, 4 
 John. Ch. (N. Y.) 294. 
 
 ^ Bailey v. Jackson, 16 John. (N. 
 Y.) 210. The presumption of pay- 
 ment may be repelled by various 
 circumstances, as by an admission 
 of the debt within twenty years, 
 McDowell V. McCullough, 17 S. & 
 R. (Penn.) 51 ; Cattle v. Payne, 
 3 Day (Conn.), 289 ; North v. Dray- 
 ton, 1 Harp. Ch. (S. C.) 34; Gold- 
 hawk V. Durne, 2 Wash. (U. S. C. C.) 
 323 ; by the payment of a part of 
 the debt, either principal or in- 
 terest, Sanders -y. Meredith, 3 M. 
 & R. 116 ; Brearden -y. Searcey, 3 
 Marsh. 544 ; or a promise to pay 
 within twenty years, Eustace v. Gas- 
 kins, 1 Wash. (U. S. C. C.) 188. But 
 the admission must be made in ex- 
 plicit terms, Haskell v. Keen, 2 N. 
 R. McCord (S. C), 166; or by 
 the debtor himself, or some per- 
 son having competent authority to 
 bind him. Thiis neither an admis- 
 sion or part payment by an heir-at- 
 law, will be operative as against an 
 executor of the estate, Blake ■». 
 Quash, 3 McCord (S. C), 346; Os-
 
 21ti 
 
 KVlDExNCE. 
 
 [CIIAP. UI. 
 
 Iii>tan«os may arise wheiv payineiit may be presiunctl from 
 the lapse ol' a less peiioil than twenty years, lola^n there are 
 o( her fads and circiuiuslanct's ickich, taken in connection with 
 such dchii/ in enforcing the claim, fairly support such a pre- 
 siunptio)i ;^ and in all sneli cases it is tor thejniy to judge of 
 
 good r. Maiihattttii Co., 3 Cow. 
 (N. Y.) Gil ; nor will tho admission 
 of one joint oliligor doprive the 
 othei-sof the benefit of the presump- 
 tion. Hiuskell V. Ko<!ii, ante. The 
 insolvency of the debtor may be 
 Bho\vn, or -his poverty or inability 
 to pay, Boardman v. De Forest, 5 
 Conn. 1 ; Fladlong v. Winter, 19 
 Ves. 196 ; Daggett v. Tallman, 8 
 Conn. 168 ; Waddell v. Elmendorf, 
 ION. Y. 170 ; but the insolvency of 
 one of several joint debtors is not 
 sufficient to repel the presumption. 
 Boardman v. De Forest, ante. Or 
 it may be shown that the parties 
 were near relatives, 12 Ves. 266 ; or 
 that the debtor was permanently 
 absent from the State, Shields v. 
 Pi-ingle, 2 Bibb (Ky.), 387; but 
 merely occasional or temporary ab- 
 sences are not sufficient, Boardman «. 
 De Forest, ante ; nor is the absence 
 of one only of two or more joint 
 ilebtoi-s, id. ; or indeed any facts or 
 circumstances which excuse delay, 
 and show that the debt w^as not in 
 fact paid, as that the bond was 
 wrongfully obtained by a third per- 
 son, in an answer, Boltz v. Bullniaii, 
 1 Yeates (Penn.), 584 ; or that the 
 obligee died, leaWng the bond with 
 his attorney, who did not deliver it 
 to the pei-sonal representatives, it 
 not appearing that they knew of it. 
 Jackson v. Hotchkiss, 6 Cow. (N.Y.) 
 401. So, that the obligor was the 
 obligee's executor. North v. Dray- 
 ton, 1 Harp. Ch. (S. C.) 34 ; or that 
 the obligee's representative had long 
 been engjiged in i)rocuring evidence 
 to establi.sh the claim, id. The pre- 
 sumption is liable to be rebutted 
 
 and overcome by proof of any facts 
 and circumstances, the legitimate 
 tendency of which is to render it 
 more probable than otherwise, in 
 the minds of the jury, that payment 
 has not in fact been made ; and the 
 question is one of pure fact for the 
 jury, and any evidence tending to 
 satisfy them that no payment has 
 actually been made, is competent 
 and admissible. Grantham -y. Canaan, 
 38 N. H. 268. Until rebutted or 
 dispelled by evidence, it has all the 
 force and effect of jjlenary proof, 
 and the jury are not allowed to dis- 
 regard it. Thompson v. Thompson, 
 2 Head. (Tenn.) 405. In the case 
 of a payment, which is relied upon 
 to repel the presumption, it cannot 
 now be proved by a mere indorse- 
 ment made by the payee, at least, 
 unless it was made at such a time 
 anterior to the attaching of the pre- 
 sumption as to make it an admission 
 against his interest, and to repel all 
 susj)icions ,of it havdng been made 
 merely for the purpose of keeping 
 the debt on foot, Roseboom v. Bill- 
 ings, 17 John. (N. Y.) 184; and an 
 indorsement made by the payee 
 after the presumption has no effect 
 as proof. Rosel)Oom y. Billings, ante. 
 ' Atkinson v. Dance, 9 Yerg. 
 (Tenn.) 424 ; Tilghman v. Fisher, 9 
 Watts (Penn.), 411 ; Fleming v. 
 Emory, 5 Harr. (Del.) 46 ; Blake 
 V. Quash, 3 McCord (S. C), 340; 
 Walten v. Harrison, 9 La. An. 234 ; 
 Mi Hedge v. Gardner, 33 Ga. 397. 
 The character df the plaintiff for 
 promptness in collecting debts due 
 him as well as of the defendant in 
 paying may be given in evidence as
 
 SEC. 80.] PRESUMPTIONS. 217 
 
 the weight of the presumption.^ Thus, it may be shown that 
 the phiintiff was poor, and the del)tor of undoubted solvency 
 during the period whicli has eUipsed since the debt matured; 
 and where delay in bringing suit was for a long period, 
 although less than twenty years — as in one case, seventeen 
 years — although such evidence is not pe?'se sufficient to raise 
 a presumption of payment, yet, m the absence of any de- 
 mand or recognition of the debt, or partial payment of 
 principal or interest, zs a persuasive circiunstance, and may, 
 ivhen slightly corroborated, he sufficient evidence of payment? 
 But mere lapse of timeiov a period less than Iwenty years, 
 although it is shown that the debtor was, during all such 
 time, solvent and able to pay, does not warrant the pi-esump- 
 tion.^ This artiticial presumption of payment no more per- 
 mits a jury to give to a shorter time a force beyond its 
 natural efficacy in producing belief, than the bar under the 
 
 a circumstance tending to show that 
 a debt has been paid in a less time 
 than twenty years. Leiper'y. Erwin, 
 5 Yerg. (Tenn.) 97; Bi-ubaker i). 
 Taylor, 76 Penn. St. 83. 
 
 1 Waters v. Waters, 1 Met. (Ky ) 
 519. 
 
 * Briggs' Appeal, 93 Penn. St. 
 485 ; Moore v. Pague, 1 Den. (Ky.) 
 327 ; Blackburn v. Squab, Peck 
 (Tenn.), 60. In Bender v. Snyder, 
 5 Barb. (N. Y.) 63, the lapse of four- 
 teen years after the last installment 
 upon a bond or mortgage became 
 due, taken in connection with other 
 circumstances, was held sufficient 
 to i-aise the presumption that the 
 bond and moi'tgage was paid. In 
 McDaniel v. Goodall, 2 Caldw. 
 (Tenn.) 391, the lapse of sixteen 
 years after a decree or judgment 
 had been obtained, with no demand 
 or payment of principal or interest, 
 and no attempt to enforce collection, 
 was held sufficient to raise a pre- 
 sumption of payment; and in Thomp- 
 son V. Thompson, 2 Head. (Tenn.) 
 
 405, the same rule was applied to a 
 bond. Lapse of time is a .circum- 
 stance which, taken in connection 
 with others, may warrant an infer- 
 ence that a debt has been paid, al- 
 though less than twenty years, and 
 its value as a circumstance is in jjro- 
 portion to the length of time which 
 has elasped since the debt became 
 due. Walker v. Emerson, 20 Tex. 
 706. See Gould v. White, 26 N. H. 
 178 ; Baker o. Stonebroker, 36 Mo. 
 338, for instances in which specialty 
 debts were presumed to have been 
 paid by a lapse of time less than 
 twenty years in connection with 
 other circumstances. 
 
 ^ Daly V. Erricsson, 45 N. H. 786 ; 
 Thomas v. Hunnicott, 54 Ga. 337. 
 In order to i-epel a presumption of 
 payment arising from the lapse of 
 time because of the insolvency of 
 the debtor, such a state of insolven- 
 cy on his part must be shown dur- 
 ing the whole period as proves that 
 he did not pay because he could not. 
 Grant v. Burgwyn, 84 N. C. 560.
 
 I'lS 
 
 KVIDEXCE. 
 
 [chap. in. 
 
 Staluto of Limitations iKTiuits a nearer approach to the 
 statutory period to avail.' 
 
 Aiitl ill those cases where a shorti'r period htis l)ecn permitted 
 lo >Mpi)ort such a presumption, it will be found that such 
 lapse of time was aided l)y other circumstances,'^ or the 
 statute, as is the ease in some of the States, provides a shorter 
 period. The posfiession of the evidences of a debt hy the payer, 
 after maturity, afords prima facie evidence of its payment 
 by him, as of a bill of exchange by the drawee,^ of a bond by 
 the obliL'-or" of a note in the hands of the niaker.^ But the 
 [nesiimption arising from this circumstance may be rebutted, 
 by showiiiiT that such evidences of debt were placed in the 
 hands of the debtor for a special i)urpose, or that he camo 
 into their possession by mistake or without the couijcnt of the 
 payee.^ The payment of a subsequent debt always raises tho 
 presumption that prior debts have been paid.''' Thus, in the 
 case last cited, where three notes were secured by a mortgage, 
 and the two last due were shown to have been sued and 
 
 ' Smithpeter v. Ison, 4 Rich. (S. 
 C.) 203. Lapse of time, although 
 only one day less than twenty years, 
 will not of itself warrant a presump- 
 tion of payment, but when coupled 
 with other circumstances the jury- 
 may find the fact of payment there- 
 from, although a plea setting up the 
 presumptive payment has not been 
 filed. Sadler v. Kennedy, 11 W. 
 Va. 187; Caldwell «. Prindle,ll id. 
 397. Payment of a judgment may 
 l)e presumed fi-om the lapse of less 
 than twenty years when there are 
 pei"sua*>ive circumstances which can 
 be submitted to the jui-y in connec- 
 tion with it. Moore t\ Smith, 81 
 Penn. St. 182 ; Gamier v. Renner, 
 51 Ind. 372. 
 
 » Pitkin V. Kent, 1 Root (Conn.), 
 312 ; Winstanley v. Savage, 2 Mc- 
 Cord (S. C.) Ch. 43.5; Diamond v. 
 Tobias. 12 Penn. St. 312 ; Bailey v. 
 Gould, Walker (Mich.), 478 ; Wight- 
 man V. Butler, 2 Spears (S. C ), 357. 
 
 ^ Hill V. Gayle, 1 Ala. 275 ; Close 
 V. Field, 2 Tex. 232. 
 
 * Day V. Clarke, 1 A. K. Mar. 
 (Ky.) 521. 
 
 " Alvord V. Baker, 9 Wend. (N. 
 Y.) 323 ; Weidner v. Schweigart, 9 
 S. & R. (Penn.) 385 ; Garlock v. 
 Geortun, 7 Wend. (N. Y.) 198 ; Egg 
 V. Bai-net, 3 E. & P. 190. 
 
 • Banks v. Marshal, 23 Cal. 223. 
 Checks drawn by the president of 
 a corporaticm ujion the treasurer iu 
 favoi" of contractoi', and found in 
 the possession of the treasurer, or 
 in the archives of the coi-poration, 
 are priina facie evidence that they 
 have been paid, the work under the 
 contract having been done ; and the 
 same rule applies to all cases of 
 evidences of debt. Union Canal Co. 
 V. Lloyd, 4 W. & S. (Penn.) 393. 
 The possession of acceptanctes by 
 the persons making them raises a 
 presumption that they are paid. 
 Hays 11. Samuels, 55 Tex. 500. 
 
 » Matthews t\ Light, 40 Me. 394.
 
 SEC. 80. j PRESUMPTIONS. 219 
 
 recovered, it was held that in the absence of opposmg proof, 
 after the lapse of thirty years, the presumption was irresistible. 
 
 So, where a broker rendered his accounts to his principal, 
 and no mention was made therein for a claim of which the 
 principal was liable, as joint debtor, it was held that the pre- 
 sumption was that such claim had been paid, and that this 
 presumption must be overcome before the broker could 
 recover thereon.^ 
 
 A strong illustration of this rule is found in the case of 
 actions for rent, by a landlord against his tenant. In such 
 cases a receipt for the payment of the rent last accruing 
 raises a presumption that all previous rent has been paid.* 
 So, where an employer has been in the habit of paying his 
 employees regularly every week or month, the receipt of 
 the wages accruing for the last week or month afiords pre- 
 sumptive evidence that his previous wages have been paid,* 
 and the same has been held where a servant had left his 
 employer's service for a considerable time before a claim for a 
 balance of wages has been made.* So, where an agent is 
 shown to have been in the habit of accounting to his prin- 
 cipal at regular stated periods for money received by him 
 for his principal, it will be presumed that he has so accounted, 
 and the onus of proving the contrary is upon the principal; ^ 
 and in the case of factors and commission merchants it will, 
 after reasonable time — though less than twenty years — be 
 presumed that they have accounted for the proceeds of 
 
 ' Smiths. Tucker, 2 E. D. S. (N. (N. Y. C P.) 58; Gilbert on Ev. 
 Y, C. P.) 193. See, also, Bushee v. 157 ; Bremer v. Knapp, 1 Pick. 
 Allen, 31 Vt. 631, where the fact (Mass.) 337. Payment of rent re- 
 that an item of book account was served in a perpetual lease, or con- 
 not alluded to or considered at the veyance in form, may be presumed 
 time of a settlement of accounts be- after the lapse of twenty years, but 
 tween the parties, and no excuse for the non-payment for more than that 
 not having alluded to such item period does not raise a presumption 
 was given upon the trial of an ac- that the covenant to pay rent has 
 tion to recover such item, was held been released and discharged, 
 to constitute strong evidence against Lyon v. Odell, 65 N. Y. 28. 
 the justice of the claim, but not to ' Lucas v. Novosilieski, 1 Esp 
 amount to an actual bar to its re- 296. 
 covery. * Seller v. Norman, 4 C. & P. 80. 
 
 ^ Patterson v. O'Hara, 2 E, D. S. ^ Evans t\ Birch, 3 Camp. 10.
 
 220 EVIDENCE. [CIIAI*. III. 
 
 .rooils coiLsigiieil to tlicin i'ov salo.' The returu of an oxe- 
 riitioii :id .salislied lai.-scs a presumption that the money waa 
 ivceived by the plaintill".'* In all ca.se.s where previous year's 
 tuxeii remaining unpaid are rcquh-ed to be earried forward 
 t(» tiie nt'xt year, tlie failui'e to earry forward the tax of a 
 previous year raises a presumption that such previous year's 
 tax is paid.^ Where an attachment of property is made 
 u[ton mesne process, and the record fails to show that this 
 was followed by a levy of the execution, a presumi)tion is 
 thereby raised that the debt was paid.* From the circum- 
 stance that a promissory note is given by one person to 
 auollitr. it will lie presumed that the payee was not at that 
 time indebted to the maker,^ and that all claims in favor of 
 the maker against the payee were adjusted at that time f 
 but this presumption is only pnma fade in its cflect, aud 
 may be rebutted by showing that the payee was in fact 
 indel)t<'d to the maker, or that the note was given for an 
 independent transaction, not atfecting existing del)ts between 
 the parlies. 7 There is no presumption that goods sold are 
 paid for on delivery, nor can such a presumption be raised 
 from the circumstance that the sellers sent to the buyer an 
 unreceipted bill, upon which was written or printed the 
 words, "Terms cash."® 
 
 Sec. 81. As to Title. 
 
 As luus already been stated, the presumption is, that the 
 title to property is in the person in whose possession it is 
 found, ^ unless there are circumstances connected with such 
 
 ' Lapbani v. BraclJick, 1 Taunt. * Lake v. Tysen, 6 N. Y. 461. 
 
 572. ' Duguid v. Ogilvie, 3 E. D. S. 
 
 » Boyd V. Foot, 5 Bos. (N. Y.) 110. (N. Y. 0. P.) 527. As to the pre- 
 
 * Attleboro v. Middleboro, 10 sumption of payment of mortgages, 
 Pick (Ma.sa.) 378. legacies, etc., see those heads. 
 
 * Benson v. Benson, 24 Miss. G25. " Wellaner v. Fellows, 48 Wis. 
 For the species of proof requisite 10."). 
 
 to estaV)lish a payment, as well as ' Di-ummond v. Hopper, 4 Harr. 
 
 what constitutes a payment, see (Del.) 327 ; Finch v. Alston, 2 S. & 
 
 chap. , "Payment." P. (Ala.) 83 ; Entriken v. Brown, 32 
 
 * Gould V. Chase, 16 .John. (N. Y.) Penn. St. 364 ; Vining v. Baker, 53 
 226 ; De Freest v. Bloomingdale, 5 Me. 544 ; Sparks v. Rawls, 17 Ala. 
 Den. (N. Y.) 304. 211; Goodwin v. Gan . S Cal. 615; Fi.sh
 
 SEC. 
 
 81.] 
 
 PRESUMPTIONS. 
 
 221 
 
 possession as overcome this presumption, and should put 
 third persons upon inquiry,^ and this is the rule both as to 
 real or personal property. In the case of lands, as between 
 the person in possession and a third person having no valid 
 title thereto, such possession prevails as evidence of title, 
 until a better title is established in the other ; but when a 
 better title is established, the party in possession must prove 
 his title.2 The rule relative to lands may be said to be that 
 where the rights of two hostile parties stand upon mere 
 possession not yet ripened into a perfect title, he who has 
 the prior possession has the best right, with the qualification 
 that, if the party having the prior possession abandons and 
 surrenders it to the adverse partj^, he cannot afterward set it 
 up.^ And, in favor of long possession, almost every variety 
 of written evidence will be presumed, and the defective links 
 in the chain of title will be supplied by presumption, and the 
 title declared perfect, when the possession has continued for 
 a great length of time.^ 
 
 But where property, real or personal, is found in the pos- 
 
 V. Skut, 21 Barb. (N. Y.) 333; Mil- 
 lay V. Butts, 35 Me. 139. Property 
 found in the possession of a deceased 
 person is presumed to belong- to the 
 estate until the contrary is proved. 
 Succession of Alexandei-, 18 La. An. 
 337. Where goods are taken upon 
 execution while in the actual posses- 
 sion of the defendant in the execu- 
 tion, and are replevied by a person 
 claiming to be the owner thereof, 
 the burden of proving that they 
 are his property rests upon the 
 plaintiff; but if the goods were in 
 the possession of another, at the 
 time of the levy, the burden is cast 
 upon the officer making the levy of 
 proving property in the defendant 
 in the execution. Merritt v. Lyon, 
 3 Barb. (N. Y.) 110. So where prop- 
 erty has been sold on execution, 
 evidence that the defendant, at the 
 time of the levy, and for eighteen 
 
 months before, had the property in 
 his possession, hired it out and 
 otherwise enjoyed the use of it, and 
 that a claimant was present at the 
 sale, making no objection, is prima 
 facie evidence of property in the 
 defendant in execution. Bordine v. 
 Combs, 15 N. J. L. (3 Green), 412. 
 In an action by a party holding 
 sheep as estrays, for their alleged 
 conversion, the burden is on the 
 defendant to show that by owner- 
 shij) or otherwise he was entitled to 
 take the sheep. Hendricks v. 
 Decker, 35 Barb. (N. Y.) 298. 
 
 ' Austin V. Bailey, 37 Vt. 219; 
 Calvin v. Warford, 20 Md. 357. 
 
 " WendeU v. Blanchai-d, 2 N. H. 
 456 ; Rachell v. Holmes, 2 Bay (S. 
 C), 487. 
 
 ^ Austin V. Bailey, 37 Vt. 219 ; 
 Chfton v. Lilly, 12 Tex. ICO. 
 
 ^ Nixon V. Carco, 28 Miss. 414.
 
 2J2 EVIDENCE. [C1LA.P. III. 
 
 sci^ion of several pcMsoiis, the law refers the possession to 
 him who lias the owmr-hip.' 
 
 Ill the case of personal property the presumption of title 
 arising from possession may be rebutted l^y showing that it 
 was held as bailee, or in a subordinate capacity,'* as, that it 
 is held as a servant or agent for the real owner. Thus it 
 •was held tiiat the presumption of title raised by possession 
 of a regular -warehouse receipt, the j)laiiitills alleging that 
 they derived title from the defendants, is not rebutted by 
 proof that the defendants once owned, and that the person to 
 •whom, in his own name, the receipt was given, was the 
 defendant's agent.^ 
 
 AVheie pioix-rty is sold and there is no evidence as to 
 whether the vendor had the possession of it at the time of 
 sjile, it will be presumed that he had such possession.^ 
 
 Where goods are sold without any special contract as to 
 credit, although the vendor is not obliged to deliver them 
 until they arc paid for, yet from the mere circumstance of 
 delivery it Avill not be presumed that they were paid for, nor 
 Avill the circumstance that an unreceipted ])[l\ was sent to the 
 vendee by the vendor, upon which w;is written or printed 
 the words, " Terras cash," raise such a presumption.^ 
 
 Sec. 82. Miscellaneous Presumptions. 
 
 Presumptions may arise from artificial habits ; as the 
 course of trade ; the course of the post ; the customs of a 
 particular trade, or of a particular class of people. In this 
 way, the time of credit, the time when a letter was received, 
 
 * Lonoir v. Rainey, 15 Ala. 6G7 ; owner ; but that this presumption 
 Maples V. Maples, Rice (S. C.) Ch. would yield to proof, and that any 
 300 ; Miller v. Fraley, 23 Ark. 735 ; proof would be sufficient if it pro- 
 Ganenor v. Campbell, 17 Ala. 566. duced belief in the minds of the 
 
 * Linscott V. Trayk, 35 Me. 139. jury that the title was in another. 
 
 * UoiT V. Barker, 8 Cal. 609. In II(;ld, that this charge was correct, 
 replevin for certain ho^rs, taken by Park v. Hari-ison, 8 Humph. (Tenn.) 
 the defendant, as deputy sheriff, on 412. 
 
 an execution against A., the court * Lang w. Hickingbottom, 28 Miss, 
 
 charged the jury that, if A. was 772. 
 
 found in the possession of the hogs, ^ "Willaneri). Fellows, 48 Wis. 105. 
 he would be presumed to be the
 
 SEC. 82.] PEESUMPTIONS. 223 
 
 etc., etc., may be proved, aud stand so until rebutted.^' The 
 reliance on the course of the post is most conspicuous in 
 suits to charge drawers and indorsers of commercial paper.^ 
 The course aud custom of trades and classes run throusfh 
 every department of society, giving a construction to their 
 words and conduct, and charging them with notice and 
 knowledge. It has been held that the officers of an insurance 
 company should be presumed to be cognizant of the marine 
 intelligence contained in a newspaper taken at the office, 
 especially that which relates to their own port,^ So, that a 
 client, resident abroad, has left all material papers with his 
 attorney, ivho defends his cause in England ; but not if he 
 resides in England ; and in no case, if the paper is not 
 obviously material.^ So, that all the partners may have 
 access to and know the contents of partnership books, though 
 this ma}' be repelled by circumstances.^ So, that a bank 
 stockholder is entitled to a certificate of ownership, as it is 
 the habit of nearly all banks to give this.^ Presumptions 
 also arise from the state of society. In a slaveholding State, 
 formerly, a person bearing a black complexion was presumed 
 to be a slave ; though otherwise of a yellow or nmlatto.' 
 While in New York, where slavery yet barely lingered, and 
 a majority of blacks were free, the same presumption was 
 denied, even from a plain African color and features.^ The 
 wife, in the husband's absence, is presumed to have been 
 left an agent for the hiring out of his horses.^ A servant by 
 the year having left her service a considerable time, the pre- 
 sumption, in England, is that her wages were paid.^*^ A 
 fortion when the service is in a factory, where the custom 
 is to pay weekly, ^i 
 
 ' 1 Stark. Ev. 356. And see 2 ' Scott v. Williams, 1 Dev. (N. C.) 
 
 Ev. Poth. 334, No. 16, § 14. 336. 
 
 ' De Forest v. Hunt, 8 Conn. 179. » Rogers w. Berry, Wash. Circ. 
 
 * Green «. Merch. Ins. Co. of New June, 1812, Cor. Yates, J., MS. ; S. 
 Bedford, 10 Pick. (Mass.) 402. C, but not S. P., 10 John. (N. Y.) 
 
 * Vice V. Anson, 3 C. & P. 19. 132. 
 
 * United States Bank x\ Binney, ^ Church v. Landers, 10 Wend. 
 5 Mas. (U. S.) 176. (N. Y.) 79, 80. 
 
 * Hussey v. Man. & Mech. Bank '° Sellen v. Norman, 4 C. & P. 80, 
 of Nantucket, 10 Pick. (Mass.) 415. " Note a to Sellen v. Norman, 
 
 svi-pra.
 
 •_>:.' I EVIDKNCE. [(HAI'. III. 
 
 Tlif latter caso coincs latlu r to the practice of individuals, 
 coiuTniiii^ which there are varioas ciiscs. Only some few of 
 the niodc-ni ones will he given. A man allowing his friend 
 repeiitedly to forge his name ui)on commercial paper, hy suh- 
 niittiiiir to have th(> paper enforced, is held ineapahle of 
 (lel'ending against subsequent forgeries.' The hal)it of the 
 retailer to charge interest after ninety days is held to bind 
 tlie customer, who shall be presunie(l to know the habit.^ 
 So, the practice of a porter to a bank as to the time of [)re- 
 .senting checlvs.^ The practice of clerks in a counting-house 
 OS to mailing letters.^ And the habit of an attorney's oflSce, 
 :is to the preparation and service of notices to quit.^ 
 
 From the custom of parents to furjiish their daughters, on 
 marriage, with outlits, the delivery of property by a parent 
 to a dauirhter. on the occasion of her marriage, without 
 explanation, will be presumed to be a gift.'' So, if some 
 time after marriage.'' 
 
 So things are held to be legally and properly in their 
 existing state, until the contrary is shown ; as if a person is 
 in ])ossession of property, the presumption is that he is the 
 rightful owner." 
 
 So the law presumes that a fact continuous in its character, 
 
 * "Weed w. Carpenter, 4 "Wond. shall be presumed to act accoi-ding- 
 (N. Y.) L'lO. to their principles and customs. 
 
 » M'Alli.stcr V. Reab, 4 Wond. (N. " 2 Ev. Poth. 333, No. 16, § 14 ; 
 
 Y.) 483, 490. 1 Dom. b. 3, tit. 6, § 4, art. 1 ; Liv- 
 
 * Merchants' Bank v. Spicer, 6 ingston v. The Peru Iron Co., 9 
 Wend. (N. Y.) 443. Wend. (N. Y.) 520, 521 ; Bell v. 
 
 * Toosfiy t). Williams, 1 M. & M. Com., 1 J. J. Marsh. (Ky.) 5.50 ; 
 129. Powke V. Dai-nell, 5 Litt. (Ky.) 319 ; 
 
 » Pattoshall v. Turford, 3 B. & Cook v. Wilson, Litt. Sel. Cas. (N. 
 
 Ad. mo. Y.) 439; Schemierhorn v. Van Vol- 
 
 * Smith V. Montgomery, 5 Mon. kenburgh, 11 John. (N. Y.) 529 ; 
 (Ky.) 502 ; Bell v. Strother, 3 Mc- Jackson ex clem. Glover v. Winslow, 
 Conl (S. C), 207, 210 ; Johnson v. 9 Cow. (N. Y.) 13 ; Jackson ex dem. 
 Dilliard, IBay (S. C), 232;Teague Klock u Rightmjn-e, 10 John. (N. 
 V. Griffin, 2 Nott & McCord (S. C), Y.) 314 ; Smith v. Lorillard, 10 John. 
 93; De Graffenried v. Mitchell, 3 (N. Y.) 338 ; Ricard v. Williams, 7 
 McCord (S. C). .50G ; Byrd v. Ward, Whe.at. (U. S.) 50 ; Jackson ex dem. 
 4 MfCord (S. C). 22S. Williams v. Miller, G Cow. (N. Y.) 
 
 ' MT'IiiiK-y i<. Lockhart, 4 Mc- 751 ; Campbell v. Roberts, 3 Mari^h. 
 Cord 1^. (\), 251. See 1 Dom. b. (Ky.) 623; Riley •». Million, 4 J. J. 
 13, tit. li. § 4, art. 7, that persons Marsh. (Ky.) 395. 
 
 1
 
 SEC. 82.] PRESUMPTIONS. 225 
 
 still continues to exist, until a change is shown ; as a part- 
 nership ;' or, within certain limits, that a life continues.^ So 
 that a legal or actual possession continues.^ That a corpora- 
 tion continues to exist.* That an entry and ouster by a 
 landlord upon his tenants continues, till a restoration is 
 shown.' 
 
 Yet a written admission that the defendant was editor on 
 one day, was held at Nisi Prius no evidence that he was 
 editor on a subsequent day.^ And admitting insolvency at 
 one time was denied as evidence that it existed considerable 
 time after. ''^ 
 
 Bad character is presumed to continue ; and a gambler to 
 continue a gambler.^ 
 
 So, everything which happens naturally and commonly is 
 taken as true ; as that a father loves his children.^ So of 
 fraternal affection, for where a younger brother entered on: 
 the land which descended to the elder brother, in his absence, 
 this was held not to be adverse, because of the relation, 
 between them.'" So of things happening naturally ; a col- 
 lateral relation claiming by descent from a decedent advanced 
 in life, must prove that he died ivithout issue, which will not 
 be presumed. '' And on the other hand, so amply have 
 medical science and general observation borne testimony to 
 the obstinacy of a settled or habitual derangement of the 
 i iitellect, iXvcXtsemelfurandibus sem'perfurandibus.prmsumilurP 
 
 ' 1 Stark. Ev. 36. " Gilb. Ten. 28 ; Magow's Case, 
 
 * Innes v. Campbell, 1 Rawle Latch, 68. 
 
 (Penn.), 373. And see 2 Ev. Poth. " Dudley v. Grayson, 6 Mon. 
 
 333, No. 16, § 14. (Ky.) 259. 
 
 * Bayard's Lessee v. Colefax, 4 " Stevens v. Van Cleve, 4 Wash. 
 Wash. (U. S. C. C.) 38. (U. S. C. C.) 262 ; Van Dusen v. Vam 
 
 -•People V. Manhattan Co., 9 Dusen, 5 John. (N. Y.) 144; Cadwell 
 
 Wend. (N. Y.) 351. v. King, 4 Cow. (N. Y.) 207; At- 
 
 ^ Lewis V. Paine, 4 Wend. (N. torney-General v. Paruther, 3 Bro. 
 
 Y.) 423, 429. And see MiUer v. (U. S. C. C.) 441, 443; White v. 
 
 Porter, 4 Wend. (N. Y.) 672. Wilson, 13 Ves. 87, 88; Hoge v. 
 
 * Macleod v. Wakely, 3 C. & P. Fisher, 1 Pet. (U. S. C. C.)163;. 
 311. Vance v. Com., 2 Va. Cas. 132 ; Lee 
 
 ' Hume V. Long-, 6 Mon. (Ky.) 116. v. Lee, 4 M'Cord (S. C), 189 ; Kin- 
 
 ® McMahon v. Harrison, 6 N. Y. loch v. Palmer, 1 Rep. Const. Ct. 
 
 443. (S. C.) 225. 
 ' 1 Dom. b. 3, tit. 6, § 4, art. 7. 
 
 15
 
 22G 
 
 EVIDKNCE. [CIIAI'. III. 
 
 IiiiKHciuc, iLs In-ing iho inoiv natural and. usual state, is 
 always pix-suiiuHl, until ivl)Uttr(l.i And so that a wife acconi- 
 panvinghcr husband in the connnission of crinic, acts under 
 his coercion, and consequently Avithout a guilty intiMit.^ So 
 a minor is presumed to 1)0 under the control and protection 
 of the parent, even though such minor is out at hired ser- 
 vice.^ 
 
 So every one is presumed to take care of his own con- 
 cerns,^ Ilenre the owner and vendor will be presumed to 
 know of obvious defects in the things sold ; e. g., the adverse 
 possession of his laud by another.^ It is also a presumption 
 that he who i)ays is indebted.^ Thus a person accepting and 
 paviuLT a check has, prima fade, funds of the drawer to that 
 amount. "^ A gift is not to be presumed. Thus, though pay- 
 ment may be presumed after twenty years, yet that being 
 repelled, the law Avill not presume the debt forgiven.^ The 
 law presumes that a prebendary de facto had performed the 
 recpiisites to make him so.^ 
 
 Another fruitful subdivision of presumption from what is 
 natural and usual, sanctioned, both in the civil and conmion 
 law, is the rule that every one governs himself by the rules 
 of right reason, and consequently acquits himself of his 
 engagements and his duty.^° This rule extends to every 
 man, Ijoth in his official and private character.^^ 
 
 As to official acts, the legal presumption is, that the 
 surveyor, register, governor and secretary of State have done 
 their duty in regard to the several acts necessary to be done 
 by them in granting lands ; and therefore, surveys and patents 
 should always be received os, prima facie evidence of correct- 
 
 ' 2 Ev. Poth. No. 16, § 14. ' Dr. Sherard's Case, cited 2 Bl. 
 
 ' R.-x V. Knifrlit, 4 C. & P. 116. 8.13. 
 
 » Millar v. Thompson, 1 Wend. " 1 Doni. 1j. 3, tit. 6, § 4, art. 7. 
 
 (N. V.) 447. " Bank of the U. S. v. Dandridge, 
 
 • 1 Doin. b. 3, tit. 6, § 4, art. 7. 12 Wheat. (U. S.) 69, 70. And see 
 » Lane v. Sheai-s, 1 Wend. (N. Y.) Ballou v. Campbell, 5 Wend. (N. Y.) 
 
 433. 572 ; Colvin v. Carter, 4 Ham. 
 
 • 1 Dom. b. 3, tit. 6, § 4, art. 7, 10 ; (Ohio) 354 ; Fridg-e v. The State, 3 
 Jamn.s v. Biou, 2 Sim. & Stu. 606. G. & J. (Md.) 103 ; Whittlesey v. 
 
 ^ State Bank of North Carolina •». Starr, 8 Conn. 134; Truwhit V. 
 Clark. 1 Hawks (N. C), 36. Dupree, 2 C. & P. 557. 
 
 • Potter V. Titcomb, 7 Me. 302.
 
 SEC. 82.] PRESUMPTIONS. 227 
 
 ness.^ Au agreement of counsel made iu the course of a cause 
 will be presumed to have been made on proper authority 
 from the client.^ So, that a sheriff selling horses on execu- 
 tion had levied on them.^ So, that overseers of the poor 
 have taken the proper steps for the relief of a pauper ;^ that 
 a board of supervisors have complied with the law in its 
 proceedings to erect a new town f that officers of govern- 
 ment would not twice survey and patent the same lands f 
 that an assessed tax on certain land was imposed upon the 
 possessor at the time, or other person bound legally to pay;' 
 that a district attorney has filed the transcript of a conviction 
 in the Court of Exchequer as required by statute f that a 
 register's sale was duly advertised f that a sheriff's sale was 
 according to his dut_y ;'" that he returned the execution in 
 due time ;^^ that he gave due notice of sale ;^^ that he held a 
 ca. sa. the proper length of time to charge bail.^^ That a 
 rector in possession had read the thirty-nine articles, will be 
 presumed.^* So, that a man acting iu a public office has been 
 rightfully appointed, as one acting as a surrogate.'^ So, that 
 entries made in public books were made by the proper offi- 
 cers ; that officers issuing a land patent had the requisite 
 warrant, plat and certificate ;^^ that a government surveyor 
 did his legal duty by surveying on the ground.^' A record 
 
 ' Wallace v. Maxwell, 1 J. J. '" Terry v. Bleight, 3 Mon. (Ky.) 
 
 Marsh. (Ky.) 447. 271. 
 
 ^ Ellworthy v. Bird, 1 T. R. 33. '^ Maury v. Cooper, 3 J. J. Marsh. 
 
 ' Hartwell v. Root, 19 John. (N. (Ky.) 226. 
 
 Y.) 345; Marsh v. Lawrence, 4 " Hanson v. Barnes, 3 G. & J. 
 
 Cow. (N. Y.) 461. (Md.) 359. 
 
 * Minklaer v. Rockfeller, 6 Cow. " Wheelock v. Hall, 3 N. H. 310. 
 (N. Y.) 276. '* Monk v. Butler, 1 Roll. 83. And 
 
 * People V. Carpenter, 24 N. Y. see 2 Anst. 372. 
 
 86. ''' Rex V. Verelst, 3 Camp. 432. 
 
 * Woodson V. BuflFord, 7 Mon. And see Bishop v. Cone, 3 N. H. 
 (Ky.)418. 513, and People v. Gilbert, Anth. 
 
 "• Rex V. Inhabitants of St. Law- N. P. (N. Y.) 191. 
 
 rence, 4 Doug-. 190 ; Rex v. Inhab- " Hickman v. Boffman, Hard, 
 
 itants of St. James, 4 Doug. 200. (Ky.) 362. 
 
 * Hilts V. Colvin, 14 John. (N. Y.) " Philips v. Robertson, 2 Tenn. 
 182. 421. 
 
 ' Hickman v. Skinner, 3 Mon. 
 (Ky.) 211.
 
 228 EVIDKNCE. [chap. Ill, 
 
 stated a tax to have hocn reported iis tissessed ; this will be 
 iiiteiuled to be the report of the man who was shcrifl' at the 
 time it w:us assessed, as the duty belonged to him.' So, 
 that the auditor of the exchequer, on his removal, had deliv- 
 cri'il up till' i(>ll>.^ So, that a constable delivering an exe- 
 cution lor renewal, held it long enough to levy and collect 
 according to law f that a tax (-oUector sold no more land 
 than w;u3 necessary to pay the tax ;* that the certificate of 
 appiais:il w;ls in the hands of the sheriff before he set off the 
 land undei the Ji.fa.;^ and that an officer commissioned by 
 the irovernor was duly nominated.^ 
 
 In one case, where a sherifi" received money on a Ji. fa, 
 after the return day, having received one installment before, 
 the court were asked to presume that he levied on the debtor's 
 pro[)eity before the return day, which act alone could give 
 him power officially to receive money afterwards ; but they 
 would not [)resume that, saying, that where a fact is neces- 
 sjiry to confer authority, it is not to be presumed, although 
 every pi ()[» r official step will be presumed after authority is 
 shown.' 
 
 Tiansactions of a i)rivate or unofficial character are inter- 
 preted by the same lenient rules of presumption. Odiosa et 
 inhonesla non sunt prcesumenda ; ^ Injuria noii proesumun- 
 tur ,•' Omnia prcesiimuniur legitime facta, donee pvobetur in 
 contrarium ;^^ Fraus est odiosa, et non pice-sumenda,^^ are 
 maxims of daily application in our courts, both of civil and 
 criminal jurisdiction, to every diversity of human action 
 which is not itself of such a character as to pronounce its 
 own condemnation. A party having a legal right, enters 
 upon land ; the law presumes that he enters with a view lo 
 that riirht, and not with a wronijful intention.'^ So,' that a 
 
 • Bush V. Williams, 1 Coke, 360. ' Rudd v. Johnson, 5 Litt. (Ky.) 
 
 • Lord Halifax's Case, Bull. N. P. 19. 
 
 298. 8 10 Rep. 56, a. 
 
 » Wilson V. Galo, 4 Wend. (N. Y.) » Co. Litt. 232, b. 
 
 623. "> Co. Litt. 232, b. 
 
 • Ives V. Ljmn. 7 Conn. 50.5. " Cro. Car. 550. 
 
 • Booth V. Booth, 7 Conn. 350. " Benson v. BoUes, 8 Wend. (N. 
 
 • Commonwealth v. Frazier, 4 Y.) 175. 
 Men. (Ky.) 513.
 
 SEC. 82.] PRESUMPTIONS. 229 
 
 deed of a trustee having power to convey upon a certain con- 
 tingency, was not given until after the condition happened ;^ 
 and generally that a trustee has faithfully executed his 
 trust.^ And so against every act of immorality.^ Equally 
 so against acts of negligence ; for where it was sought to 
 charge the defendant with having placed a dangerous com- 
 modity on board a ship without due notice to the captain, 
 it was held that the want of notice should not be presumed, 
 but the contrary.* And there cannot be a doubt that neg- 
 ligence in most of the difl'erent descriptions of bailees should 
 never be presumed,^ So, when a vessel is in her usual busi- 
 ness, it will be presumed that the master is on board, that 
 being his duty.^ 
 
 If, after every effort to establish fraud, it remains doubt- 
 ful upon the proof, innocence is to be presumed.''^ So the 
 presumption is against the breach of a positive law. By an 
 English statute, letters not sent with, and respecting pack- 
 ages, must be mailed, and cannot be sent by private post. 
 It appearing that a letter was with the package in the parcel 
 aent, the court presumed that it had respect to the parcel, 
 inasmuch as the contrary would be to violate the act of parlia- 
 ment.^ Upon the authority of the last case it was afterwards 
 held that an importer will be presumed to have caused his 
 goods to be entered at the custom house according to law.^ 
 So strong is this presumption, that where a woman married 
 within twelve months after her first husband was last heard 
 of, his death was presumed.^'' So, evidence that a theatre has 
 gone on to perform without interruption authorizes the pre- 
 
 ' Morrison v. M'Millan, 4 Litt. ' Lee v. Cook, 1 Wash. (U. S. C. 
 
 <Ky.) 210. C.) a06 ; Munroe v. Gardner, 1 Rep. 
 
 ^ Shilknecht v. Eastbui-n, 2 G. & Const. Ct. (S. C.) 308. Et in facto 
 
 J. (Md.) 114. quod se Jiabet ad bonum et malum, 
 
 ^ Cusack V. "White, 1 Rep. Const, inagis de bono quam de inalo prcBsu- 
 
 Ct. (S. C.) 282. mendum est. Co. Litt. 75, b. 
 
 * WiUiams v. The East India Co., ^ Bennett v. Clongh, 1 B. & Aid. 
 
 3 East, 192. 461. 
 
 ^ Story on Bailments 152, 153 ; ^ Sissons v. Dixon, 8 Dow. & Ry. 
 
 Schmidt v. Blood, 9 Wend. (N. Y.) 52H ; 5 B. & C. 758. 
 
 268, 271. "* Rex v. Inhabitants of Twyning-, 
 
 " Cutter V. Moore, 7 N. J. Eq. 2 B. & Aid. 386. 
 219. And see Co. Litt. 78, b.
 
 •2'M) 
 
 EVIDENCE. [CIIAP. III. 
 
 sumption llmt it is lieciisod iiiir>ii:int to the statute;^ and a 
 cori>orati()ii, in rt'ceiviiiir :i loiitract for debt, will be prc- 
 simu'd to have acted within its powei-.s.^ 
 
 Upon llir .sune ground we arc to presume that an unex- 
 plained interlineation, erasure, obliteration or other alteration 
 of a written instrument was made before itri exeeutiou. Such 
 wonlil, of course, be the presumption on a criminal prosecu- 
 tion for forgery ; and the range of decisions in civil cjises, 
 with a few exceptions, follows the same rule.^ 
 
 Exceptions to this doctrine are found in the case of bills 
 of exchange, promissory notes and the like commercial paper. 
 Thus, on a (juestion arising whether the date of an accept- 
 ance was altcreil (the alteration appearing on its face) before 
 or after the bill was indorsed, the indorsement licing unavail- 
 able if made before the alteration, Abbott, Ch. J., refused 
 to presume in favor of an alteration at the proper time, 
 observing that the plaintilf must prove the alteration to have 
 preceded the acceptance, otherwise it would be void for want 
 of a new stamp.' Here, it will be perceived, was a com- 
 l)lete departure from the usual presumption in favor of 
 innocence ; lor the judge intends a forgery. If the case 
 went on a general inclination observed among men to evade 
 the biu-dcn imposed by the stamp laws, it is obvious that the 
 
 ' Ro.lwell V. Redge, 1 C. & P. Chancellor speaks of it at page 223. 
 
 220. In Trowel v. Castle, 1 Keb. 22, it 
 
 ' New York Firemen's Ins. Co. v. was given in charge to the jury 
 
 Sturge.s, 2 Cow. (N. Y.) 664. that "an interlineation, without 
 
 • In Fitzgerald v. Ld. Faucon- anything appearing against it, will 
 
 berge, Fitz-G. 207, the interlinea- Le presumed to be at the time of 
 
 tion wa.s in a deed of conveyance or the making of the deed, and not 
 
 settlement of F.'s estate, and tended after." So, in Wickes ij. Caulk, 5 
 
 to enlarge the power of revocation H. & J. (Md.) 41, on objection that 
 
 over his estate, which he had re- the subscribing witnesses' names 
 
 ceived to himself ; and Lord Chief were erased, the court declared 
 
 Baron Reynolds (with whom the that "it is incumbent on a party 
 
 master of the Rolls and Lord Chan- who wishes to avoid a deed by its 
 
 cellor seem to have concurred) said erasure to prove that the alteration 
 
 he must look upon it as if it had was made after its execution and 
 
 been originally incorporated in the delivery." See note 433, vol. 2. 
 
 botly of the deed, "for there was * Johnson?). Duke of Marlborough, 
 
 no proof when these words were in- 2 Stark. 313. 
 terhned." Fitz-G. 214. The Lord 
 
 1
 
 SEC. 82.] PRESUMPTIONS. 231 
 
 onus would be changed in respect to various other species 
 of paper, as well as the commercial kind. So, in a subse- 
 quent case, where the action was by the indorsee against the 
 acceptor of a l)ill of exchange, an alteration appearing to 
 have been made in the sum, it was held at bar to lie with 
 the plaintifi' to prove that it was properly made.' 
 
 Another exception has been made in case of an appeal 
 bond, though the court do not deny the general presumption 
 in favor of an alteration before execution. They say the 
 presumption may be rebutted ; and they will not put the 
 appellee to that hazard.- In the latter case, it is said, a note 
 of the alteration by the attesting witness would have obviated 
 the objection, and that this might have been subjoined by 
 the witnesses on the motion to dismiss the appeal ; and it is 
 agreed by all the cases, that where the alteration appears to 
 be suspicious on its face, and is not duly noted, as if the 
 paper have been cut close, or a mutilated figure be left, or 
 the ink differ, or the handwriting be that of a holder inter- 
 ested in the alteration, etc., the onus lies with the party who 
 claims that the alteration was genuine.^ 
 
 So if the suspicion arises from extraneous circumstances.^ 
 And the instrument ma}^ in turn, be sustained by internal 
 evidence of fairness, or external evidence applicable to the 
 transaction.^ 
 
 Nor is it to be disguised that an unpleasant appearance of 
 contrariety exists among the cases as to the general rule, 
 where no suspicion arises independent of the alteration itself, 
 while various high authorities follow the ancient rule of 
 presumption in favor of an alteration before execution.*' 
 
 ' Henman v. Dickinson, 5 Bing 555 ; Collier v. Jacoby, 9 Cow. 125, 
 
 183. But see Cumberland Bank v. 126 ; M'Micken v. Beauchamp, 2 
 
 Hall, 215. And see Sayre -u. Reyn- Miller (La.), 290. 
 
 olds, 737 ; Ranldn v. Blackwell, * Campbell v. Roe, 2 Hawks (N. 
 
 2 John. Cas. (N. Y.) 198, 200. C), 93. 
 
 "^ Sutphen n. Hardenberg, 9 N. ^ Glanville V. Paine, Bamardist. 
 
 J. Eq. 288 ; Shinn v. White, 10 N. J. Ch. Rep. 18. And see Cumberland 
 
 Eq. 187. Bank v. Hall, 5 N. J. Eq. 215 ; 
 
 ^ Bishop v. Chambre, 3 C. & P. Rankin v. Blackwell, 2 John. Cas. 
 
 55 ; Nunnery v. Cotton, 1 Hawks (N. Y.) 198. 
 
 (N. C), 222 ; Jackson ex dem. ^ 12 Vin. Abr. 57, Evidence Q, a. 
 
 Gibbs V. Osbom, 2 Wend. (N. Y.) 2, pi. 5 ; 13 id. 41, Faits u, pi. 11 ;
 
 232 
 
 KVIDKNCK. 
 
 [CIIAT. III. 
 
 Wlurr :i iUh'cI or assigiiineiit is ottbred iu evidence as a 
 link ill :i ihiiiii of tillc, it is lulinissible, iiotwithytuiiding ail 
 allonitioii l>v i-ni-sure and iiitorliiieatioii iippurciil oil the laue 
 
 2 Woo(i's lust. (10th eii.) -SO, ch. :} ; 
 1 Swill'a iSyst. 310 ; 4 Cruis, Dig. 
 41(0, tit. 32, cb. 2G, § 10 ; Rankin v. 
 BljickwfU, 2 John Cjus. (N. Y.) IDS ; 
 Cumh.'rhui<l Bank v. Hall, 5 N. J. 
 Eq. 215 ; Stark. Ev. pt. 4, p. 476, 
 note A ; Pi-evost v. Gratz, 6 Wheat. 
 (U. S.) 481, 502. Other eases, or at 
 loa.st other dicta of very able judges, 
 are iliametricaHy opposed. In (Jibbs 
 V. O.sborn. 2 Wend. (N. V.) 555, al- 
 though that case i.s sustainable on 
 the ground of a strong su.spieion, 
 independent of the mere erasure, 
 yet the reasoning of the court, who 
 speak by Sutherland, J., is gen- 
 eral, and would seem to change the 
 onu.s in all cases. The authorities 
 cited by him apparently i-elate to 
 one case only, yix. : that of an altered 
 deed, iht.'. execution of which is 
 claimed to be proved by its age and 
 jjo.'ise.ssion under it. In such a case 
 age and j)o.sse.ssion ai"e not sufficient, 
 but the oi-dinary proof must be re- 
 .sorted to. Mr. Phillii)ps, vol. 1, p. 
 4^15, ed. of 1823, cited l>y the learned 
 judge, aLso would seem applicable 
 to ca.<*e8 of alteration generally. 
 The dictum of Wa-shinoton, J., in 
 the ca.se of Prevost v. Gratz, in note 
 b to tht! above page of Phillipps, re- 
 ported in 1 Pet. (U. S. C. C.) 364, 
 3t;it, is to the same effect with the 
 <loc:trine of Suthekland, J. ; and 
 Ixith are sustained by the Nisi Pnus 
 <lecisi((n, and charge to the jury of 
 McKkan, C. J. Morns' Lessee v. 
 Van<leren, 1 Dal. (U. S.) (54, 67. 
 The foi-ce of Mr. Ju.stice Wash- 
 iN<iTos*8 decision and <lictum, in 
 Prevost V. Gratz, was taken away 
 by a i*eview and reversal of his de- 
 rree, in the Supreme Court of the 
 United States (S. C, 6 Wheat. 481, 
 502), by which the authority of that 
 
 liigh tribunal is turned in favor of the 
 ancient rule. Duncan, J., speaking 
 of that ca.sc, in Hefleltinger 7). Shutz, 
 16 S. & R. (Penn.) 47, calls it a pre- 
 sumption mad(! in favor of innocence, 
 "even where the alttiration was in 
 favor of the person in whose hand- 
 writing it was." Still, however, if 
 we superadd the decisions of the 
 English courts upon commercial 
 l)aper, which, although we have set 
 them down as making an exception, 
 are not directly so treated by the . 
 judges, the discrepancy may be 
 quite embarrassing. We called those 
 cases exceptions, because they do 
 not profess to overrule or question 
 the ancient cases. It is certainly 
 a point of no little interest, how the 
 rule shall finally stand, which must 
 exercise almost a daily influence on 
 imjjortant rights. The dictum of 
 a learned court, pro(;eeding mainly 
 according to the civil law, also sus- 
 tains the above depai-tures from 
 what was clearly th(! ancient rule 
 of the common law. We allude to 
 the late case of McMicken v. Beau- 
 champ, 2 Miller (La.), 290. There 
 a contract appeared to be altered 
 in a material part by different ink. 
 The court disregarded the difference 
 of the ink (which we have seen 
 would have changed the onus under 
 th(! old common-law rule) ; and, on 
 (juotations from the civil law, as 
 con.strued by Spanish commentators, 
 take the broad gromid, " that writ- 
 ings erased or interlined, are pre- 
 sumed to be false." They add that 
 " the rules in relation to this subject, 
 cited from the Spanish and civil 
 law, are in conformity with the law 
 of merchants, and all systems of 
 jurisprudence with which we have 
 any acquaintance."
 
 SEC. 82.] PRESUMPTIONS. 233 
 
 of the instrument, in a different ink.^ This is sometimes 
 phiced on the ground that the law presumes an interlineation 
 in a deed to have been made at or before the time of its 
 execution.- In some of the States no such presumption is 
 raised.'^ There being no circumstance of suspicion appear- 
 ing upon the deed, except that which arises from the mere 
 fact of the erasure or interlineation, the court will not pre- 
 sume a forgery of the instrument ; but when the alteration 
 of the paper is such as to change its legal efiect in fav^or of 
 the party producing it, the presumption that it was made 
 before execution is not very strong — barely sufficient for its 
 admission in evidence ; and in any case where the alteration 
 is material, the time when it was made is a question of fact 
 to be passed upon by the jury, and one that naturally calls 
 for some explanation on the part of the person offering the 
 instrmnent in evidence.^ The refusal to produce a deed 
 alleged to contain a clause fraudulently inserted, which did 
 not appear in the mortgage as recorded in the clerk's office, 
 is a badge of fraud from which the jury may pronounce 
 against the claim imder that clause.^ In the case of a will, 
 which bears on its face evidence of having been interlined 
 and added to and altered in a material part, the whole being 
 in the handwriting of the testator, the party producing and 
 claiming under it is bound to explain the suspicious circum- 
 stances. Evidence being given on both sides, the question 
 whether the deceased executed that will, is one of fact, 
 unembarrassed by any })resumption one way or the other.^ 
 The act of an officer certifying a judgment and noting era- 
 sures, alterations and interlineations, will be presumed to 
 have been made at the time the roll was authenticated, truly 
 and in good ftiith.''' 
 
 ^ Smith V. McGowan, d Barb. (N. ■• Jackson v. Osborn, 2 "Wend. (N. 
 
 Y.) 404. Y.) 555 ; Herrick v. Malin, 22 Wend. 
 
 "" Doe V. Catamore, 5 Eng. Law (N. Y.) 388. 
 
 and Eq. 349 ; Farnsworth v. Shai'iJ, ^ Hager v. Hag-er, 38 Barb. (N. 
 
 4 Sneed (Tenn.), 55 ; Stoner v. ElUs, Y.) 92. 
 
 6 Ind. 152 ; Bailey v. Taylor, 11 * Van Buren v. Cockburn, 14 
 
 Conn. 531, 534 ; Crabtree v. Clark, Barb. (N. Y.) 118. 
 
 20 Me. 337. '' Lozier v. Westcott, 26 N. Y. 149. 
 
 ' Ely V. Ely, 6 Gray (Mass.), 439; 
 Jordan v. Stewart, 23 Penn. St. 244.
 
 2;34 EVIDENCE. [cHAr. HI. 
 
 Ill iv.->in-cl to bills aiul notes, it will not he presumed that 
 iin alleralion by eriisiire or by iiiteilincatioii, apparent on the 
 lacf of the pajjcr, which lends to diminish the rights of the 
 l»arlv to whom it was given, was made aflin- the paper wai» 
 I'Xeciilcd :' ami it has l)een fretpicnti}- hchl, tliongh the 
 authorities are not harmonious, that no sueli presumption 
 will be raised even where the alteration would emire to the 
 advantage of the pa^ee or holder.^ Clearly, not where the 
 pavee (»nly tills in a blank in the note.^ The English rule calls 
 for explanation of the alteration of the bill or note from the 
 partv proilueing it.' An alteration of a note so as to make 
 the interest jjayable semi-annually, made by the maker and 
 ])ayee after its delivery, discharges the surety.^ 
 
 But although it is said that fraud, etc., are not to be pre- 
 sumed, the student should be careful to remember that this 
 is predicable of those acts only which stand alone. Not that 
 fraud, like crime, may not be made out and presumed from 
 circumstantial testimou}'.^ True, this ought not to be slight.'' 
 Yet strong presumptive circumstances indicating fraud, will 
 o, It weigh positive proof against it.® Indeed, .so common 
 and obvious are these circumstances in some cases, as where 
 j)roperty is transferred in fraud of creditors, that the profes- 
 sional reader can find ample illustration in his own recollec- 
 tion. The Court of Chancery constantly presumes fraud 
 from certain confidential relations, as that of trustee and 
 cestui qua trust, principal and agent, etc., existing between 
 the parties in respect to the subject-matter of the contract ;* 
 a principle which constitutes an important distinction between 
 the jurisdiction of chancery and the courts of common law.^* 
 
 ' Bailt-y v. Taylor, 11 Conn. 531. v. Aston, 1 Ves. 268; Watkins v. 
 
 ' Agawani Bank v. Seai-s, 4 Gray Stockett, 6 H. & J. (Md.) 435 ; Brog- 
 
 (Ma«s.), 95. ,len v. Walker, 2 id. 292. 
 
 ' Kitchen v. Pia^e, 41 Barb. (N. ' Caldwell v. Benedict, 8 Mai-t. 
 
 ^'•) 465. (La.) 4.54. 
 
 ♦ Knight V. Clements, 8 Ad. & El. " The Short Staple, 1 Gal. (U. S.) 
 215 ; Ilenman v. Dickinson, 5 Bing. 104. 
 
 183 ; Clifford v. Parker, 2 M. & G. » Gallatiani'. Cunningham, 8 Cow. 
 
 909. (N. Y.) 361. 
 
 » Dew«'y V. Reed, 40 Barb. (N. " Cad well v. King, 4 Cow. (N. Y.) 
 
 Y)16. 207. 
 
 • Per Lord ILiRDwicKE, in Aston 
 
 A
 
 SEC. 82.] PRESUMPTIONS. 235 
 
 A voluntary conveyance by a debtor to a trustee for the 
 benefit of his wife, is deemed fraudulent and void, as against 
 existing creditors ;^ to render a deed voluntary, it must be 
 without any the least valuable consideration ; if given for 
 any the least valuable consideration, the question whether it 
 is fraudulent as to creditors is one of fact for a juiy.^ Even 
 a voluntary (.'onveyance from a parent to his child by way 
 of advancement, though presmned fraudulent as against 
 existing creditors, may be upheld where the presumption is 
 repelled by circumstances or by positive evidence.^ The 
 intent to defraud need not be shown by direct evidence, A 
 conveyance by the father to his son of all his property, in part 
 consideration of an unli(piidated indebtedness to him for 
 several years' labor, and in part to provide for his own and 
 his wife's future support, the son to pay all his debts except 
 a contingent liability by indorsement, the whole consideration 
 being much less than the value of the property conveyed, is 
 fraudulent and void, as against creditors.'* A sale to an 
 infant partly on credit, made by a firm in embarrassed cir- 
 cumstances, is not necessarily fraudulent and void as against 
 creditors.^ To avoid a voluntary conveyance, as against 
 creditors, it is not necessary that the debtor should be in- 
 solvent, or believe himself to be so, at the time of the grant ; 
 it is sufficient if his solvency depends upon his success in 
 business, in a pending speculation.^ When the conveyance 
 is made by a man in prosperous circumstances, and the gift 
 is only a reasonable provision for his wife or children, which 
 leaves him fully able to discharge all his del)ts, the presump- 
 tive evidence of fraud is met and repelled.'^ The fraud which 
 must be alleged and proved, may be established by facts and 
 circumstances f if not inferable from the circumstances, the 
 
 * Read v. Livingston, 3 Johns. Ch. * Matthews v. Rice, 31 N. Y. 457. 
 (N. Y.) 481. ^ Carpenter v. Roe, 10 N. Y. 227. 
 
 " Jackson v. Seward, 5 Cow. (N. ' Babcock v. Eckler, 24 N. Y. 
 
 Y. ) 67. 623 ; Hinds' Lessees v. LongTvorth, 
 
 ^ Van Wyck v. Seward, 18 Wend. 11 Wheat. (U. S.) 199. 
 
 (N. Y.) 375. * Newman v. Cordell, 24 N. Y. 
 
 * Robinson v. Stewart, 10 N. Y. 623; Waterbury v. Sturtevant, 18 
 189. Wend. (N. Y.) 353.
 
 231) EVIDENCE. [CIIAP. IH. 
 
 oonvoyaneo will not l>i' invalidated I)}' u .su)).s('quc'iit inability 
 to pay an oxi.sting dchl.' 
 
 in an action ibr damages lor inducing the plaintifl's to sell 
 and di'liver goods hy false and fraudulent representations, it 
 seems that the plaintiil' will not be allowed to testify in answer 
 to a (juestion by his own counsel, that he sold and delivered 
 the goods relying on the truth of the defendant's representa- 
 tions;'"^ \i\> intention and motives are in issue and so are the 
 representations themselves ; his acts must decliire iiis intent, 
 as in the case of a voter depositing a written ballot.^ 
 
 So a conspiracy may be proved by circumstances, among 
 wliich are the acts of the parties in doing the injury which 
 is the alleged object of the conspiracy.^ 
 
 Again : men are presumed to act according to their own 
 interest.'' A tenant in tail pays oft" an incumbrance on the 
 estate. AVhy ? In order to exonerate it ; for he can at any 
 time obtain the fee simple in another form, and therefore has 
 no interest in keeping it on foot to protect the estate, or en- 
 large it, or to reimburse himself. Otherwise of a tenant for 
 life, who has l)ut a temporary interest. He cannot save him- 
 self without the incumbrancer's place, which chancery will 
 give to him, w^th all the incumbrancer's rights and remedies, 
 u[)on the presumption that the tenant intended the apparent 
 l)ayment as an act of purchase. And so of the like cases.^ 
 
 This presumption, hke any other, may in various ways be 
 repelled.''^ 
 
 ' NeNvman v. Cordell, 24 N. Y. Redington, 1 B. & B. 131, 141 ; Earl 
 
 €23. of Buckinghamshire v. Hobart, 3 
 
 ' Shawv. Stine, 8 Busw. (N. Y.) Swanst. 186. 
 
 157. ' Per Lokd Eldon, C, in St. Paul 
 
 » People V. Saxton, 22 N. Y. 309. v. Viscount Dudley, 15 Ves. 173 ; 
 
 * Jones V, Becker, 7 Cow. (N. Jones v. Morgan, 1 Bro. C. C. 206 ; 
 Y.) 445. Lady Shrewsbuiy v. Lord Shi-ews- 
 
 ' Finch's Law, 37. bury, 3 Bro. C. C. 126 ; Redington 
 
 • Per Lord Thurlow, C, in Coun- v. Redington, 1 B. & B. 143 ; Wind- 
 teas of Shrewsbui-yy. Earl of Shi-ews- ham t\ Lord Egrcmont, Anibl. 753 ; 
 bury, 1 Ves. Jr. 227, 233 ; Kirkham Kirkham v. Smith, 1 Ves. 2rj8 ; 
 V. Smith, 1 Ves. 2."J8; Amesbury v. Amesbury v. Brown, 1 Ves. 480; 
 Brown, 1 Ves. 477 ; Jones v. Morgan, Earl of Buckinghamshire v. Ilobart, 
 1 Bro. C. C. 200, 218 ; Ware v. Pol- 3 Swanst. 186 ; Foi-bes v. Moffat, 18 
 hill, n Ves. 2.57 ; St. Paul n. Lord Ves. 384. And .see Gardner t). Astor, 
 Dudley, 15 Ves. 167 ; Redington v. 3 John. Ch. (N. Y.) 53, 55. 
 
 H
 
 SEC. 82.] PBESUMPTIONS. 237 
 
 The modern cases have aiiseii mainly upon mortgage 
 transactions. Thus, where the equity of redemption was 
 devised to the mortgagee, it was held that this union of 
 estates should extinguish the mortgage, if that result would 
 be indifferent to the devisee ; otherwise if he had an interest to 
 keep it on foot ; and so of other similar cases. ^ Prima facie, 
 it is an extinguishment ; and the one who pays must show 
 that his interest was to have the mortgage kept on foot.a 
 Thus, where one owning the equity of redemption in fee, 
 paid oif a mortgage in which the mortgagor's wife joined, 
 and which payment, if allowed to operate as an extinguish- 
 ment, would let in her dower against the owner, discharged 
 from the mortgage, the latter will l)e taken as still sul)- 
 sisting.^ And this would be so, although the owner not only 
 pays, but takes a release from the mortgagee.^ So where the 
 mortgagee took a deed with warranty from the mortgagor, 
 the former was still allowed the benefit of his mortgage, as 
 against a previous attaching creditor of the mortgagor.^ So 
 of the covenants of title, in the mortgage.^ And though he 
 takes a release of the equity of redemption on his prior 
 mortgcaofe, and discharo;cs the debt, this will not let in a subse- 
 quent mortgage.'' But in such a case, the proof of an inter- 
 est or intent at the time to keep the mortgage on foot, should 
 be clear and precise.^ Where the intention is declared by the 
 deed to consider the mortgage paid, this will be conclusive.^ 
 Whether considerations of interest prevail or not, all the 
 cases agree that the intent may be declared at the time, or 
 deduced from various circumstances. '° 
 
 ' Forbes v. Moffat, 18 Ves. 384 
 Gibson v. Crehoi-e, 5 Pick. (Mass.) 
 146 ; Freeman «. Paul, 3 Me. 260 
 Starr v. Ellis, 6 John. Ch. (N. Y. 
 393; Mills i). Comstock, 5 id. 214 
 
 * Caril v. Butman, 7 Me. 102; 
 Thompson v. Chandler, id. 377. 
 
 * Myers V. Brownell, D. Chip, 
 (Vt.) 488. 
 
 * Lockwoodt). Sturdevant,6Conn. 
 Lockwood V. Stuz'devant, 6 Conn. 373. 
 
 372. ^ Baldwin v. Norton, 2 Conn. 161. 
 
 "^ Gardner v. Astor, 3 John. Ch. * Burnet v. Denniston, 5 John. 
 (N. Y.) 53 ; Burnet v. Deniston, 5 Ch. (N. Y.) 35. 
 id. 35 ; Starr v. Ellis, 6 id. 393. ' Wade v. Howard, 6 Pick. 
 
 ^ Gibson X). Crehore, 3 Pick. (Mass.) 492. 
 (Mass.) 475. " James v. Johnson, 6 John. Ch. 
 
 (N. Y.) 417.
 
 238 EVIDENCE. [chap. HI. 
 
 Upon the same priuciple, loug acquiescence by one in the 
 advci*se enjoyment of a right by auother, leads to an inference 
 that the Ibnnor has parted with it in a legal form ; and, in 
 time, may lead to the presumption of the necessary Instru- 
 ments of assurance, or of the requisites to make existing 
 assurances valid against him. So of the extinction and satis- 
 laction of demands, and the sanctioning of secondary 
 evidence.' 
 
 Upon the same principle, it is presumed that a man has 
 ad()[)ted or accepted an advantageous act, offer, gift, bequest, 
 devise or conveyance, etc., until his positive disclaimer or 
 refusal is shoAvn.- This rule is mainly applied to the 
 presumed acceptance by creditors of their debtor's assign- 
 ment, in trust for their payment, where the assignment 
 requires no release or other disadvantageous terms.^ But 
 the doctrine of presumed assent in these particular cases is 
 received, if at all, with great caution in Massachusetts, where, 
 to warrant it, the benefit must appear to be decided and un- 
 equivocal.^ The Supreme Court of that State, however, 
 applied the principle very sti-ongly in another case, where 
 they presumed the assent of a widow to a testamentary 
 provision in lieu of dower, it appearing decidedly advanta- 
 geous.^ In P^ngland, it is held that one shall be presumed to 
 have adopted an advantageous act* done by another as his 
 {issumed agent.^ 
 
 * Fitzhugh V. Croghan, 2 J. J. (U. S.)78; and M'Allister v. Mar- 
 Mar. (Ky.) 435 to 437, and Bigger shall, 6 Binn. (Penn.)338. Or to the 
 r. Alderson, 1 Munf. (Va.) 54. assent of the assignees or tnistees. 
 
 * Per Baylby and Littledale, Wilt -y. Franklin, 1 Binn. (Penn.) 502. 
 .]'.s, in Bailey v. Culverwell, 8 B. & And see Lippincott v. Barker, 2 
 C. 448 ; Mai-ston ■«. Butler, 3 Wend. Binn. (Penn.) 174; Shepherd v. 
 (N. Y.) 149; Camp V. Camp, 5 Conn. M'Evers, 4 John. Ch. Rep. 136: 
 291 ; T()wn.send v. Tickell, 3 B. & Nelson v. Blight, 1 John. Cas. 205 ; 
 Aid. 31, and the ca.ses there cited, Weston v. Barker, 12 John. (N. Y.) 
 particularly Thomp.son v. Leach, 2 27u ; and Cumberland v. Codring- 
 Salk. 618. See also Nicholson v. ton, 3 John. Ch. (N. Y.) 229, 261. 
 Wordsworth, 2 Swanst. 365, 372 ; * Russell v. Woodward, 10 Pick. 
 Adams v. Taunton, 5 Madd. 435; (Mass.) 408. 
 
 and2Preat. on Abstracts, 226 e««eg. ^ Merril v. Emery, 10 Pick. 
 
 * Nicholl V. Mumford, 4 John. (Mass.) .507. 
 
 Ch. (N. Y.) .522, 529; Halsey v. ''Per Bayley and Littledale, 
 Fairbanks, 4 Mas. (U. S.) 206. And JJ's, in Bailey v. Culverwell, 8 B. & 
 Bee Brooks v. Marbury, 11 Wheat. C. 448. In Beal v. Taylor, 5 HiU (N.
 
 SEC. 82.J PRESUMPTIONS. 239 
 
 Other presumptions urise from the nature and general 
 incidents of property. To the ownership of lands, certain 
 rights and privileges are annexed de coinmu7ii jure ; though 
 not so inseparable but that they may be disanuexcd, and 
 vested in another. Thus the lord of the manor owns the soil 
 of common right ; and on his being proved lord of the 
 manor, his ownership of the soil is intended ; and it Ues with 
 the opposite side to show that any part belongs to another. ^ 
 So the different landholders of a manor have prima facie a 
 right of common on the lord's waste ; and the owner of the 
 surface of the land, to the minerals or inferior strata ; the 
 possessor of a several fishery to the ground covered Avith 
 water ;- and of various other incidental rights, as the lord to 
 the soil of the highway running over the waste of his manor \^ 
 and the owner of inclosed land, to the waste intervening 
 between that and the highway.^ So where a road passes 
 between the land of A. and B., prima facie, each owns the 
 soil thereof, usque ad filem vice.^ So two proprietors on 
 opposite sides of a river not navigable, that is to say, above 
 the ebb and flow of the tide, own usque filum aquoe ; and the 
 proprietor of both sides owns the whole.^ 
 
 Y.), 587, where a debtor residing' in ance is one of fact. Sturtevant v. 
 
 Baltimore, in failing circumstances, Orser, 24 N. Y. 538. 
 
 sent goods to Taylor & Co., at New * Co. Litt. 261 a, note 1, in Harg. 
 
 York, to be delivered to plaintiff in & Butl. ed. 
 
 part payment of a debt due to him, " Co. Litt. 122 a, note 7, Harg. & 
 
 at the same time sending to plaintiff Butl. ed. ; LoflFt, 364, title, Sepai-ate 
 
 a letter apprising him of the fact. Fishery ; Partheriche v. Mason, 2 
 
 and the goods were received by Chitt. 658. 
 
 Taylor & Co., and sold within a few ' Lofft, 358 ; 1 Roll. Abr. 392, 1, 
 
 days, it was held that plaintiff 5. 
 
 might recover the value of the goods * Pring v. Pearcy, 7 B. & C. 304. 
 
 so sent to him ; that the arrange- * Lofft, 359 ; per Gibbs, Ch. J., in 
 
 ment being beneficial to the plaintiff, Grose v. "West, 7 Taunt. 41 ; "Wat- 
 
 his assent might be presumed, on rous v. Southworth, 5 Conn. 305 ; 
 
 the principle that a trust created for Cook ■». Green, 11 Price, 736. 
 
 the benefit of a third person, though * Ex parte Jennings, 6 Cow. (N. 
 
 without his knowledge, may be Y.) 518 ; 2 Dane's Abr. 692, § 13 ; 
 
 subsequently adopted and enforced Waters ■». Lilly, 4 Pick. (Mass.) 145 ; 
 
 by him. The acceptance of a deed Commonwealth v. Chapin, 5 Pick. 
 
 delivered to a stranger for the use (Mass.) 199 ; Mason v. Hill, 3 B. & 
 
 of a grantee, will be presumed. Ad. 76 ; Fleming v. Kenney, 4 J. 
 
 Church V. Gilman, 15 Wend. (N. J. Mar. (Ky.) 158; and Scott v. 
 
 Y.) 656. The question of accept- Wilson, 3 N. H. 321.
 
 210 EVIDENCE. [chap. HI, 
 
 As before remarked, these incidental or presumptive rights 
 are not insepuruhle. The presumplion niuy, therefore, be 
 rebutted.' Tlius the presumption thut the right of minerals 
 accompanies the fee, may be rebutted by sliowing a user by 
 others.* 
 
 Other presumptions are founded on the dictates of pru- 
 dence and discretion ; as that regular and ordinary means 
 are adopted for a given end. Hence, where the means calcu- 
 lated to attain a certain end appear to have been adopted, or 
 the end itself appears to have been attained, a technical and 
 particular completion in the one case, or all the ordinary 
 j)reVi<)iis steps in the other, need not be proved, but will be 
 presumed ; especially if the absence of particular proof is 
 accounted for. Thus proof of sealing and delivery without 
 the signing of a deed, the usual place on the deed for this 
 being nuitilatcd, would doubtless warrant the presumption 
 that the deed was signed. So if the deed is lost. So 
 where the attestatiou says only " sealed and delivered," in a 
 case where you are put to proof of the subscribing witness's 
 handwriting ; or where there is no attesting witness ; but 
 you prove the parties' hand to a paper sealed, with the usual 
 attestation, " sealed and delivered," the paper being in your 
 hands and for your l)cnefit ; or in the ordinary case of 
 establishing a contract by simply proving the signature to be in 
 the handwriting of the party to be charged. In all these cases 
 something is wanting in the direct proof ; the handwriting 
 in one case, the sealing in another, the delivery in another, 
 yet the facts which are proved lead irresistibly to the pre- 
 sumption that the other acts requisite to give validity to the 
 instrument were, in truth, done, and the law ajji^lies the 
 maxim. Omnia jyrcRHmnuntur rede solleniter esse acta, donee 
 jprohetur in contrarium? This is a maxim of extensive 
 application in the law of presumptive evidence ; and where 
 direct proof is beyond the party's reach, or in cases where it 
 
 * 1 RoU. Abr. 401 ; 16 Ves. 390 ; » Rowe «. Grenfel, Ry. & M. 
 
 Co. Litt. 122 a, note of Harg-. & 396. 
 
 Butl. ; T-a(l.j V. 8hepherd, 2 Str. » See 12 Wheat. 70. 
 1004 ; Grose ■». West, 7 Taunt. 39.
 
 SEC. 82.] PRESUMPTIONS. 241 
 
 is not reasonably to be expected, comes in aid of numerous 
 defects.^ 
 
 Where the bargain and sale for a year, and the release 
 bear date the same day, the former will be presumed to have 
 been first executed, this course having been necessary to give 
 them validity as a conveyance. And so of any other and 
 like modes of conveyance.^ So where a witness attested only 
 the last sheet of a will, all the sheets were presumed to have 
 been in the room.'' Or if all the witnesses are dead, a res^u- 
 lar execution is intended from proof of their handwiitiiig.'* 
 So a deed will be presumed to have been delivered on the 
 day of its date.^ And having a seal at the trial, will be 
 }:resumed to have had one when delivered, although the sub- 
 scribing witness remembers no seal. A patent from the 
 State will be presumed to have borne the great seal, although 
 the exemplification is marked " L. S." only.'^ And after a 
 few years' possession and exercise of corporate rights by an 
 ecclesiastical corporation, formed under the New York 
 statute, it will be presumed that the proper ofiicer was pres- 
 ent at the formation, although the certificate of the proceed- 
 ings omits to mention that circumstance.^ So a judicial 
 confirmation of a sale made under a decree, by a trustee, 
 was presumed.^ A contract by A. to work for B., and 
 another bearing the same date, and having the same sub- 
 scribing witness, by which B. promised to pay A. a certain 
 sum in a certain way, were intended the one to form the 
 consideration of the other. ^^ 
 
 ' M'Queen v. Farquhar, 11 Ves. Brice v. Smith, Willes, 1 ; Croft v. 
 
 467 ; BuiTOwes v. Lock, 10 Ves. Pawlet, 2 Str. 1109. 
 
 470 ; Pigot V. HoUoway, 1 Binn. ^ Breckenridg-es v. Todd, 3 Mon- 
 
 (Penn.) 436 ; Rex v. Catesby, 2 B. roe, 54, 55; Shep. Touch. 72. 
 
 & C. 814 ; Gaston v. Mason, 1 N. J. * Ball v. Taylor, 1 C. & P. 417. 
 
 Eq. 10 ; Curtis'?). Hall, 4 N. J.L. 148 ; ' Williams v. Sheldon, 10 "Wend. 
 
 Newbold v. Lamb, 5 N. J. L. 449; (N. Y.) 654. 
 
 Churchill v. Speig-ht, 2 Hayw. (N. * All Saints' Church v. Lovett, 1 
 
 C.) 338; Rex v. Witchurch, 7 B. & Hall (N. Y.), 191. 
 
 C. 573. » Shilknecht v. Eastburn's Heirs, 
 
 * Barker v. Keate, 1 Freem. 251 ; 2 G. & J. (Md.) 114. 
 
 Atkyns v. Horde, 1 Burr. 106. '" Aldridg-e v. Birney, 7 Monr. 
 
 « Bond V. Seawell, 3 Burr. 1773. (Ky.) 344, 847. 
 
 * Hands V. James. 4 Conn. 531 ; 
 
 16
 
 242 EVIDENCE. [chap. IH. 
 
 It has hiH'ii a matter of much litigation, how far the 
 maxim, Onuiia j>r(i'6'M;yH«i^««* rite esse acta, shall prevail in 
 e.stahlishing the jurisdiction of a court or magistrate. In 
 England it is not admissible as to i\\c facts which constitute 
 a special and limited jurisdiction/ although it is otherwise 
 of courts having general jurisdiction. In the former case, 
 in order that the party ma}^ avail himself of the proceeding, 
 he nuist not only plead, but prove the facts which go to the 
 question of jurisdiction.^ But in Massachusetts, there appear- 
 ing on the tiles of the Prolnitc Court a record of assignment 
 of dower regular on its face, the Supreme Court intended 
 that a regular application by the widow was made, or her 
 assent given lor that pur})()se.^ And in Pennsylvania the 
 maxim was expressly applied to support the summary proof 
 of a will in a County Court of Virginia ; the court saying, 
 " To the act of the County Court in holding jurisdiction of 
 the sui)ject of probate, the maxim, Omnia, etc., is as appli- 
 cal)le as the judicial proceedings of our own State."'* In 
 New York, as to these foreign proceedings, which are 
 unknown • to the common law, the cases appear to con- 
 flict. In one, which was the case of a New Jersey attach- 
 ment of a vessel by a material-man, it was sustained on the 
 presumption that the law of that State warranted the pro- 
 ceeding.^ But in another case, which related to a specific 
 delivery of real estate under au execution, in satisfaction 
 of a judgment of Vermont ; a very common proceed- 
 ing in New England, it was placed upon the ground 
 of a strictly foreign proceeding unknown to the com- 
 mon law, jurisdiction of which must be shown by plead- 
 ing the local statute and proving it.^ But l)y this and 
 several other cases, it is agreed that upon a common-law 
 question that law shall be presumed to prevail in a neighbor- 
 
 ' Per HoLROYD, J., in Rex v. All ■* Ripple v. Ripple, 1 Rawle 
 
 Saints, 1 M. & Ry. 668. (Penn.), 386. 
 
 ^ Rudd V. Johnson, 5 Litt. (Ky.) ^ The Stamford Steamboat Co. v. 
 
 19 ; also stated m'pra, pi. 9, of this Gibbons, 9 Wend. (N. Y.) 327. 
 
 Tiote. ' Holmes v. Broughton, 10 Wend. 
 
 ' Tilson V. Thompson, 10 Pick. (N. Y.) 75. 
 (Ma,'»s.) 359, 363. 
 
 *£.'i
 
 SEC. 82.] PRESUMPTIONS. 243 
 
 ing State until the contrary be shown.^ This subject, how- 
 ever, belongs more properly to the future head which treats 
 of the mode of proving domestic and foreign judgments and 
 other judicial proceedings. It will be presumed that a com- 
 mission has been returned by mail as required by statute and 
 opened by the justice issuing it ;^ that arbitrators have acted 
 within the time set for their award,^ on all the matters sub- 
 mitted ;* that the three assessors have acted together, though 
 only two of them have signed the report f that the three 
 commissioners of highways were present in the laying out of 
 a private road f that an act shown to have been done was 
 done at the right time.' But the law will not presume a 
 fact requisite to confer jurisdiction in a special proceeding f 
 though there is a presumption in favor of the regularity of 
 the proceedings of a board of officers f and in favor of the 
 jurisdiction of the surrogate over the estate of a decedent, 
 after a lapse of many years.^" 
 
 Other presumptions are referable to the policy of the law. 
 An instance under this head is the presumption in favor of 
 cross remainders when the land is devised between two per- 
 sons as tenants in common in tail, and the contrary when 
 between more than two.^^ This rule is of course confined 
 to devisees, and is subject to various modifications and 
 exceptions arising from the particular language of the will.^^ 
 
 ' Walker v. Maxwell, 1 Mass. » 2 Bl. Com. 381. 
 
 103 ; Legg- v. Legg, 8 Mass. 99. ^^ See Perry v. White, Cowp. 777 ; 
 
 ^ Hall V. Barton, 25 Barb. (N. Phipard v. Mansfield, CoAvp. 797, 
 
 Y.) 274. 800 ; Burden v. Burville, 2 East, 47, 
 
 = Owen V. Boerum, 23 id. 187. 48, note ; Holmes v. Meynel, T. 
 
 * Ott V. Schroeppel, 6 N. Y. 482. Jones, 172 ; Atherton v. Pye, 4 T. 
 
 * Doughty V. Hope, 3 Den. (N. R. 710 ; Cooper v. Jones, 3 B. & 
 Y.) 249, 594; 1 N. Y. 79. Aid. 425, 429; Staunton v. Peck, 2 
 
 * Tucker v. Rankin, 15 Barb. (N. Cox C. C. 8 ; Watson v. Foxton, 2 
 Y.) 471. East, 36, 40 ; Roe v. Clayton, 6 East, 
 
 '' Sheldon v. Wright, 7 Barb. (N. 628 ; Gorges v. Webb, 1 Taunt. 
 
 Y.)39. 234; Green -». Stephens, 17 Ves. 
 
 * People V. City of Brooklyn, 21 64 ; Comber v. Hill, 2 Str. 969 ; 
 Barb. (N. Y.) 484. Davenport v. Oldis, 1 Atk. 579; 
 
 * People V. Cai-penter, 24 N. Y. Dyer v. Dyer, 19 Ves. 612 ; Jones v. 
 86. Randall, 1 J. & W. 100. 
 
 "* Bolton V. Brewster, 32 Barb. 
 (N. Y.) 389.
 
 244 EVIDENCE. [chap. ni. 
 
 Ao^aiii : the presumption is, that money borrowed by the 
 hasbaiiil, on the security of the wife's real estate, is appro- 
 priated solely by him, the money being under his absolute 
 control, in virtue of the power conferred by the marital 
 right. ^ Hence, she and her personal representative have a 
 rii^ht in o(piity to demand of him and his representatives, 
 that his estate shall be first applied in discharge of the incum- 
 brance, so as to relieve her estate.^ This, however, being 
 but an equity, may be rebutted by another equity, which 
 may he set u}) by parol proof.^ As if the money Wiis raised 
 to pay oirher debts due dum sola ;'^ or for her private use f 
 even though she should afterwards make a present of the 
 money to him.® And so, in general, where the money is 
 raised partly for the use of each.'' Where the wife purchases 
 a chattel on her personal credit, and the husband takes it 
 into his possession and uses it, the title is held to vest in him.^ 
 
 In some cases, the mere want of presumption on the one 
 side is a sufficient presumption in favor of the other ; for 
 wherever the nature of a subject leaves it perfectly indif- 
 ferent whether a given fact does or does not exist, the party 
 who founds his claim or his defense upon the existence of it, 
 must remove that indifference ; and the opposite party may 
 rely upon the single argument that nothing appears in 
 opposition to him ; and that de non apjmrentibus et non 
 existentibits eadem est ratio? 
 
 Where the existence of one fact so necessarily and 
 absolutely induces the supposition of another, that if the 
 
 ' Earl of Kinnoul v. Money, 3 * Lewis ■?;. Nangle, Ambl. 150 ; 
 
 Swanst. 208, note. Earl of Kinnoul v. Money, 3 Swanst, 
 
 " Neimcewicz v. Gahn, 3 Paige 202, note ; Bagot «. Oughton, 1 P. 
 
 (N. Y.), ()14 ; Tate v. Austin, 1 P. Wins. 347. 
 
 Wms. 264 ; Lord Huntingdon's Case, " Clinton v. Hooper, 1 Ves. Jr. 
 
 2 Vem. 437 ; Astley v. Earl Tank- 188. 
 
 erville, 3 Bro. C. C. 54.') ; Earl of • Clinton -». Hooper, 1 Ves. Jr. 
 
 Kinnoul r\ Money, 3 Swanst. 208, 188. 
 
 note a. And see Pocoke v. Lee, 2 '' Lewis v. Nangle, Ambl. 150. 
 Vem. 604 ; and Clinton X). Hooper, * Glann vi. Younglove, 27 Barb. 
 
 1 Ves. .Jr. 173. (N. Y.) 480. 
 
 * Per Lord Hardwicke, in Earl of » 2 Ev. Poth. 329, No. 16, § 14. 
 Kinnonl v. Money, 3 Swanst. 202, 
 208, n«te o.
 
 SEC. 82.] PRESUMPTIONS. 245 
 
 one is true the other cauaot be false, as where connection is 
 inferred from pregnancy, the term presumption cannot be 
 legitimately applied ; for the nature of presumption is, that 
 it does not require to be substantiated, but that it may be 
 defeated by positive contradiction, according to the maxim, 
 StabUur presum.ptioni donee probetur in contrarium} The 
 distinction between presumption and proof is, that the one 
 may be false, but until shown to be so, must be regarded as 
 true ;■ that the other (the facts upon which it is founded 
 being admitted) cannot be otherwise than true.^ 
 
 ' Lofft's Gilb. 303. « 2 Ev. Poth. 329, No. 16, § 14.
 
 CHAPTER IV. 
 
 HEARSAY EVIDENCE. 
 
 SECTION. 
 
 83. General Rule. 
 
 84. "What is Hearsay. 
 
 85. Exceptions to the Rule. 
 
 Sec. 83. General Rule, 
 
 It is a .universal general rule that mere hearsay evidence is 
 not admissible to establish any specific fact which, in its 
 nature, is ca^pable of being proved by witnesses wlio speak 
 from their own knowledge;^ or, in other words, that evi- 
 dence, whether written or spoken, which does not derive its 
 credil)ility solely from the credit due to the witness himself, 
 but rests in part upon the veracity and competency of some 
 other person, from whom the witness received the informa- 
 tion, is not admissible to establish a substantive fact. And 
 this is the rule, although the declaration sought to be proved 
 ivas, at the time ivhen it was made, against the interest of the 
 person making it^ and although no other evidence can possibly 
 be obtained? as, where it is the declaration of a person who 
 was the only eye witness to the transaction and ivho is dead,* 
 
 ' Page V. Parker, 40 N. H. 47; 
 Scales V. Desha, 16 Ala. 308 ; Cha- 
 pin V. Taft, 18 Pick. (Mass.) 379; 
 Buckley v. Cunningham, 34 Ala. 69 ; 
 People V. McCrea, 32 Cal. 98 ; Pen- 
 ninian v. Patchin, 6 Vt. 325. The 
 iTjle is of modem oi-igin, and the 
 earliest case in which it was acted 
 upon is Sampson v. Yardley, 2 Kcb. 
 223. The leading case in this coun- 
 try is Mima Queen v. Hepburn, 7 
 Cranch (U. S.), 290, confii-med in 
 Davis V. Wood, 1 Wheat. (U. S.) 6, 
 and although at one time opposed in 
 some of the States, is now univer- 
 eally foUoweil in all of them. 
 
 * Gordon v. Bowei-s, 16 Penn. St. 
 226; Fitch v. Chapman, 10 Conn. 
 8; Bailey v. Wood, 24 Ga. 164; 
 Macon, &c., R. R. Co. v. Davis, 27 
 id. 113 ; Coble v. McDaniel, 33 Mo. 
 363 ; Wiswall v. Kenevais, 18 Ala. 
 65. 
 
 ^ Mima Queen v. Hepburn, 7 
 Cranch (U. S.), 296; Ferry v. Fry- 
 stone, 2 East, 54. 
 
 * 1 Phillips Ev. 214 (Am. ed.). 
 In Haiper «. Scott, 12 Ga. 125, the 
 declaration of a deceased person as 
 to the loss of a ]iaper was held in- 
 admissible to establish a ground for 
 letting in secondaiy evidence of its
 
 SEC 83.] HEARSAY EVIDENCE. 247 
 
 or of a witness who keejps out of the way to avoid being 
 suhjpmnaed on the trial} The fact that the statement was 
 sworn to in an affidavit, or upon a trial in another cause, or 
 that it lias been made the subject of an entry in an account 
 or other boolc,^ or even though it has been repeated by one 
 of the parties, does not strip it of its character as hearsay or 
 render it admissible.^ 
 
 The reason for this rule is, that such evidence requires 
 cj-edit to be given to the statements of a person who is not 
 under the obhgations of an oath or any of the ordinary tests 
 for ascertauiing the truth of the statement, being subject 
 neither to cross-examination by the party to be affected by 
 his testimony, nor present in court so that his deportment 
 can be observed, nor so situated in reference to the case, 
 that his character or motives can be investigated.* Another 
 very forcible reason for the rule is, that such evidence can be 
 fabricated with comparative safety to the witness, as he can- 
 not ordinarily be convicted of perjurj', as the testimony of 
 two witnesses, or at least full proof of the falsity of his state- 
 ment, is necessary. So, too, there is great danger, however 
 honest or conscientious the witness may be, that the state- 
 ment made by such person may have been imperfectly 
 heard or understood, or inaccurately remembered ; therefore 
 it would seem that the rule is founded upon correct princiiiles, 
 
 contents; and in Smothers x>. Mudd, 9 the declaration was made by a per- 
 
 B. Mon. (Ky.) 490, it was held that son since deceased does not render 
 
 neither a person's death or absence it admissible. Dewey t\Goodenough, 
 
 from the State could be i:)roved by 5(3 Barb. (N. Y.) 54 ; Gray v. Good- 
 
 yeneral reputation or heai-say. See rich, 7 John. (N. Y.) 95 ; Spatz v. 
 
 also State Bank ■?). Seawell, 18 Ala. Lyons, 55 Barb. (N. Y.) 476, 
 
 616. But in some of the cases it is ' "Woodward v. Paine, 15 John. 
 
 held that the death of a person may (N. Y.) 493. 
 
 be proved by hearsay, Jackson v. * Chui-chman v. Lewis, 34 N. Y, 
 
 Boneham, 15 John. (N. Y.) 226, but 444 ; Miller v. Clark, 5 Lans. (N. 
 
 that neither the time, place nor man- Y.) 338 ; Pattersons. Mai'yland Ins. 
 
 Tier of his death can be shown by Co., 3 H. & J. (Md.) 71. 
 
 that species of evidence, Jackson v. ' Stephens v. Vrooman, 16 N. Y. 
 
 Etz, 5 Cow. (N. Y.) 314 ; nor can 381. 
 
 the presumption of death arising- * Gray v. Goodrich, 7 John. (N. 
 
 from an absence of seven years be Y.) 96 ; Sparge v. Brown, 9 B. & C. 
 
 rebutted by such evidence. Smoth- 938 ; Sutton v. Ridgway, 4 B. & 
 
 ers ■». Mudd, ante. The fact that Aid. 55.
 
 248 
 
 EVIDENCE. 
 
 [CIIAP. IV. 
 
 mid is sound in policy. As wo shall see hereafter, this rule 
 i.s subject to many exceptions, and it is .sometimes quite 
 ditiicult to determine whether a given ease comes within the 
 rule or the exception. 
 
 Sec. 84. What is Hearsay. 
 
 W henever a loitness states tJiat of which he is not person- 
 ally cognizant, but has derived from some third person, his 
 testimony is clearly hearsay, and, except in the special in- 
 stances which will he hereafter rclerred to, is not admissible. 
 Thus, upon an issue as to whether a person was pecmiiarily 
 responsible at a certain time, it is, as hekl by most of our 
 courts, not competent for a witness to state what his "under- 
 standino-" in reference to the matter, as acquired from other 
 persons, is; but he must also speak from his personal 
 knowledge.' But it is no departure from the rules of evi- 
 dence to prove the notoriety in the neighborhood of a fact 
 already proved to exist, to lay the foundation for an inference 
 that the defendants were cognizant of the fact. Thus, where 
 the detendants represented to the plaintiff that an insolvent 
 person was good for his contract, hearsay was held admissible 
 to prove the notoriety of the insolvency in the neighbor- 
 hood, and establish a presumption that the defendants knew 
 it when they represented him otherwise.^ So where it is 
 
 ' Caswell V- Howard, 16 Pick. 
 (Mass.) 5G7 ; Green v. Caulk, 16 
 Md. 550. "While the fact of insol- 
 vency cannot be proved — as a i"ule 
 — by hearsay evidence, Molyneaux 
 V. Collier, 13 Ga. 400 ; Walker v. 
 Forbes, 25 Ala. 139 ; Vaughan v. 
 "Warnell, 28 Tex. 119, in most of the 
 States, yet in some of them it is held 
 that a person's pecuniary responsi- 
 bility may be shown by his general 
 reputation in that respect at the time 
 in question, Bank of Middlebni-g v. 
 Rutland, 33 Vt. 414 ; and in Michi- 
 gan it has been held that, in the case 
 of an aasignment for the benefit of 
 creditors, e%'idence of general repu- 
 tation 18 admissible to show the 
 pecuniary standing and condition of 
 
 the assignee, and even his actual in- 
 solvency, to establish fi-aud. Angel 
 V. Rosenbury, 12 Mich. 241. See 
 also Miminger i). Knox, 8 Minn. 140, 
 where it was held tliat a person's 
 insolvency might be shown by hear- 
 say. In Vermont the rule is that, 
 when the question at issue is in 
 i-eference to the pecuniary respon- 
 sibility of a person, a witness may 
 be allowed to express his opinion as 
 to such person's solvency as derived 
 from a 2wrsnnal acquaintance with 
 Mm, and from his reputation i7i this 
 respect in the community where he 
 resides. Hand v. Brown, IS Vt. 87. 
 " Ward V. Herndon, 5 Port. (Ala.) 
 382.
 
 SEC. 84.] HEARSAY EVIDENCE. 249 
 
 sought to bring home to a person knowledge of a certain 
 fact, evidence of the general belief among his neighbors, of 
 the existence of the fact, is admissible.' Thus, proof that 
 the burning of a warehouse was generally known in the 
 town where it was situated, is admissible to bring home a 
 knowledge of the fact to one who had cotton destroyed by 
 the fire, who lived within twenty or twenty-five miles of the 
 jDlace, and traded in it, and, two months after the fire, ex- 
 ecuted his note for an advance on the cotton. ^ 
 
 Such evidence is not admissible to establish the value of 
 property, although such understanding was derived from 
 persons who buy and sell that species of property,^ op who 
 are regarded as experts in such matters. Thus, the report 
 of a state fair committee on agriculture upon the value of a 
 joatented drill was held mere hearsay and not admissible.* An 
 appraisal of property sold under an execution, made by 
 appraisers appointed for that purpose, is not admissible to 
 establish the actual value of the property in question in an 
 action b}' a person claiming to be its owner ;^ nor are letters 
 written by the plaintifi* to third persons tending to show a 
 conversion of such property by the defendant, admissible to 
 make out a conversion f nor is it competent for one mem- 
 ber of a family to testify as to what another member of 
 the family, who is dead, told him a certain family portrait 
 cost;''' nor for one member of a firm to testify as to what 
 another member of the firm told him the latter paid for cer- 
 tain goods purchased l)y him for the firm.^ General reouta- 
 
 * Benoist v. Darby, 12 Mo. 190. be proved by reputation. See also 
 
 ^ Jones V. Hatchett, 14 Ala. 74B. Prescott v. Hayes, 43 id. 593, where 
 
 But see Oden v. Stubblefield, 4 Ala. it was held that proof of rumors 
 
 40, where it was held that in order which, if true, would affect the 
 
 to show that the husband knew value of certain property, is not 
 
 certain facts relative to his wife, it admissible upon the question of 
 
 was not competent to show that the value. 
 
 matter was spoken of in his family * Gatling v. Newell, 9 Ind. 572. 
 
 in the presence of his wife. * Flannigan v. Althouse, 56 Iowa, 
 
 ' Green v. Caulk, 16 Md. 556 ; 513. 
 
 Williamson v. Dillon, 1 H. & G. « Da\'id v. David, 66 Ala, 139. 
 
 (Md.) 444. In Heath v. West, 26 ' Houston, &c., R. R. Co. ■». 
 
 N. H. 191, it was held that neither Burke, 55 Tex. 323, 
 
 the qualities or value of a horse can ^ Williamson v. Dillon, ante.
 
 250 EVIDENCE. [chap. IV. 
 
 tioii is not competent evidence to prove ii partnership, but 
 the tnuisiictions of parties bearing upon the i)oint may be 
 received if not objectionable on general prmcipk\s ;* nor is 
 such evidence admissible to establish the fact of agency, 
 and the evidence must go to acts done by the alleged agent 
 and ratified by the piincipal ;^ nor to prove who arc officers 
 of a private corporation.^ 
 
 In an action for the conversion of property against 
 an officer who took it under process as the property 
 of a person in whose possession it was found, it is not 
 competent for the plaintiff, in order to establish his title to 
 the i)roperty, to show that such person had stated to others 
 that he borrowed the property of the plaintiff.^ Neither 
 hearsay evidence or general reputation is admissible to 
 establish the title to property, either persona? or real.^ 
 Thus, where a party offered evidence to show that the land 
 in controversy had been called the land of "I. S.," under 
 whom he claimed, it was held inadmissible.' The fact that 
 property was assessed to a certain person, is not admissible 
 in an action in such person's favor to establish his title there- 
 to ;* nor are letters written by third persons, not parties to 
 the suit, competent evidence.^ 
 
 Sec. 85. Exceptions to the Rule. 
 
 To the general rule relating to hearsay evidence, there are, 
 from necessity, several exceptions, which aie as well 
 established as the rule itself, and a thorough knowledge of 
 the application of which is of the highest importance to the 
 
 ' Iliiksr. Crane, 17 Vt. 499; Her- « School District tJ. Blakeslee, 13 
 
 eom V. Henderson, 23 N. H. 498. Conn. 227 ; McKuiiion v. Bliss, 21 
 
 » Perkins v. Stebbins, 29 Barb. N. Y. 206 ; Parker v. Pierce, 16 
 
 (N. Y.) 523; Blevins v. Pope, 7 Iowa, 227 ; Howland v. Crocker, 7 
 
 Ala. 371 ; Trowbi-idge v. "Wheeler, Allen (Mass.), 153. 
 
 1 Allen (Ma.ss.), 162. » School District v. Blakeslee,13 
 
 * Litchfield Iron Co. v. Bennett, 7 Conn. 227 ; Urkett v. Corg-all, 5 W. 
 Cow. (N. Y.) 234. & S. (Penn.) 60. 
 
 * Kin{? V. Frost, 28 Minn. 417. • Adams v. Hiscock, 55 Iowa, 632. 
 ' Allen V. Pi-otee, 40 Ala. 358 ; » Simpson v. Smith, 27 Kan. 565. 
 
 "WhitPPtt V. Slotee, 23 id. 626 ; Cor- 
 l«^y r. State, 28 id. 22. 
 
 I
 
 SEC. 85.] HEARSAY EVIDENCE. 251 
 
 practitioner. These exceptions are mainly embraced mider 
 the following heads : 
 
 1st. Relating to matters of general or public concern. 
 
 2d. Pedigree. 
 
 3d. Ancient possession. 
 
 4th. Boundaries. 
 
 5th. Dying declarations. 
 
 6th. Declarations against interest by persons deceased. 
 
 7th. Declarations or entries made in the course of oflSce 
 or business {res gestce). 
 
 8th. Testimony given by a witness on a former trial, since 
 deceased. 
 
 9 th. Admissions by parties in interest. 
 
 I
 
 CHAPTER V. 
 
 HEARSAY TO PROVE GENERAL OR PUBLIC RIGHTS. 
 SECTION. 
 
 86. Admissible to prove Public Rights. 
 
 87. Meaniiif,' of Terms "Public" and "General." 
 
 88. When Independent Proof is not necessary. 
 
 89. Application of the Exception. 
 
 f«(). liistiint-t^s in which .such Evidence has been rejected. 
 
 Sec. 86. Admissible to prove Public Rights. 
 
 .llnirso}/ evidence is admissible as to questions relating to 
 matters of public or general interest} The term " interest," 
 as employed in this rule, means pecuniary interest, or some 
 interest by wliich the legal rights or liabilities of a class of 
 the community are affected; and the grounds of admissibility 
 arc, that, as the origin of such rights are generally ancient 
 and obscure, they are usually incapable of direct proof, 
 and because, as to local matters, all persons living in the 
 neighborhood and interested in them are likely to be con- 
 versant, as common rights are naturally the subject of 
 common and pulilic conversation, in the course of which 
 statements are made which, uncontradicted, arc likely to be 
 true, and thus a trustworthy reputation may arise from the 
 concurrence of many unconnected with each other, and inter- 
 ested in investigating the truth f and it is this prevailing 
 current of jissertion that is resorted to as evidence, for it is 
 to this that every member of the community is supposed to 
 be privy, and to contribute his share.' 
 
 S«c. 87. Meaning of the Terms "PubUc " and " General." 
 
 In speaking of mattei-s of public and general interest, the 
 t«rms public and general are sometimes used as synonyms, 
 
 Berkley Peerage Case, 4 Camp. " Lord Campbell in R. v. Bedford- 
 
 4L') ; Morewood v. Woods, 14 East, .shire, 4 E. & B. 541. 
 
 329 ; Weeks v. Sparke, 1 M. & S. » Wi-ight v. Tatham, 7 Ad. & El. 
 
 686 ; R. V. Bedfordshire, 4 E. & B. 366. 
 635.
 
 SEC. 87.] HEARSAY GENERAL OR PUBLIC RIGHTS. 253 
 
 meaning merely what concerns a multitude of persons. ^ Bnt, 
 in regard to the admissibility of hearsay testimony, a dis- 
 tinction • has been taken l)etween them ; the term public 
 being strictly applied to that which concerns every member 
 of the State ; and the term general being confined to a les- 
 ser, though still a considerable, portion of the community. 
 This distinction should be carefully attended to, because in 
 matters strictly public, such, for exami)le, as a claim of high- 
 way or a right of ferry, reputation from any one appears to 
 be receivable ; and although declarations would be almost 
 worthless, unless made by persons who, l)y living in the 
 neighborhood, or by frequently using the road or ferry, or 
 the like, are shown to have had some means of knowledge ; 
 yet the want of such proof of their connection with the sub- 
 ject in question seems to affect the value only, and not the 
 admissibilit}^ of the evidence. If, however, the right in dis- 
 pute be simply general ; that is, if those only who live in a 
 particular district, or adventure in a particular enterprise, 
 are interested in it, hearsay from persons, wholly uncon- 
 nected with the place or business, would be, not only of no 
 value, but probably altogether inadmissil)le.- 
 
 Thus, in an action of trespass quare clausion f regit, where 
 the defendant pleaded in bar a prescriptive right of common 
 in the locus in quo, and the plaintiff replied, prescribing in 
 right of his messuage to use the same ground for tillage with 
 corn, until the harvest was ended, traversing the defendant's 
 prescription ; it appearing that many persons, beside the 
 
 ' Pim V. Curell, 6 M. & W. 234. evidence was not attainable ; uhi a 
 * Crease v. Barrett, 1 C, M. & R. coiamuniter accidentibus, j>''o^«iio 
 929, per Parke, B. By the Roman difficilis est, fania 2)^enam solet pro- 
 law, reputation, or common fame, hationem facere; ut in probatione 
 seems to have been admissible in filiatlonis. But Mascardus deems 
 evidence, in all cases ; but it was it not sufficient, in cases of pedigree 
 not generally deemed sufficient within the memory of man, which 
 proof, and, in some cases, not even he limits to fifty-six years, unless 
 semiplena probatio, unless corrob- aided by other evidence— ^wic/iempe 
 orated ; nisi aliis adminlculis adju- nan sufficeret p^iblica voxel fama, sed 
 vetur. Mascardus, De Pj-ob., vol. U7ia cum ipsa deberet traciatus et 
 1, Concl. 171, n. 1 ; Concl. 183, n. 2 ; nominatio probari, vel alia adinini- 
 Concl. 547, n. 19. It was held suffi- cula urgentia adhiberi, Mascard. 
 cient, plena probatio, wherever, De Prob. vol. 1, Concl. 411, n. 1, 2, 
 from the nature of the case, better 6, 7.
 
 254 EVIDENCE. [chap. V. 
 
 dcfeii Juiit, had a right of common there, evidence of reputa- 
 tion as to the phiintiff's right Wiis held admissible, provided 
 it were derived from persond conversant with the neighbor- 
 hood.' So, where the question was, whether Nottingham 
 Castle was within the hundred of Broxtowe, certain ancient 
 orders, made by the Justices at the Quarter Sessions for the 
 county, in which the castle was described as being within • 
 that hundred, were held admissible evidence of reputation ; 
 the justices, though not proved to have been residents within 
 the county or hundred, being presumed, from the nature 
 and character of their offices alone, to have had sufficient 
 acquaintance with the subject in dispute, to make the state- 
 ments in their orders admissible.- Again, where the ques- 
 tion related to the custom of mining in a particular district, 
 persons, under whose estates the minerals lay, with respect 
 to which the custom was said to exist, were held to be suffi- 
 cientl}' connected with the subject to make their declarations 
 evidence, as they were more likely than others living at a 
 distance to become adventurers, and consequently to be sub- 
 jected to the operation of the custom.'^ But where the point 
 at issue was, whether the city of Chester anciently formed 
 part of the County Palatine, an old document, purporting 
 to be a decree of certain law officers and dignitaries of the 
 crown, not having autiiority as a court, was held inadmis- 
 sible as evidence of reputation, because those personages 
 
 ' Weeks v. Sparke, 1 M. & Sel. laid down : — " Confines jy)'6bantAt,r 
 
 <j7'J, tiSS, 689, pel- Le Blanc, J. The po- testes. Vei'uni scias velivi, testes 
 
 actual dLscussion of the subject in in hac inateria, qui vicini, et circiivi 
 
 the neighborhood, was a fact also ibi habitant, esse inagis idoneos qiMin 
 
 relied on, in the Roman law, in alios. Si testes non .tentiat comino- 
 
 <:ases of proof by common fame, dum vel incommodtim hnmediatum, 
 
 " Qtmndo testis vult probare ali- possint pro sua communitate depo- 
 
 quem .^citnsse, Jion indetur sufficei-e, nere. Licet hujusmodl testes sint de 
 
 quod dicat ille scivit quia erat vici- universitate, et deponant super con- 
 
 nus ; sed debet addere, in vicinia hoc finibus sum universitatls, probant, 
 
 erat cognitum per fainam, vet alio dummodum prcBcipmmi ipsi commo- 
 
 modo ; et ideo iste, qui erat vicinus, dum non sentiant, licet infei-ant 
 
 potuit id scire." J. Menochius, De commodum in universum." 
 
 Prssump. torn. 2, lib. 6, Prses. 24, « Duke of Newcastle ^ Broxtowe, 
 
 n. 17, p. 772. See also Mascardus, 4 B. & Ad. 273. 
 
 de Prob. vol. 1, p. 389, 390, Concl. ' Crease v. Barrett, 1 C.,M. & R. 
 
 395, n. 1, 2, 19, 9, where the law is thus 919, 928-930.
 
 SEC. 88.] HExVRSAY — GENERAL OR PUBLIC RIGHTS. 255 
 
 had 110 peculiar knowledge of the subject, excepting what 
 they derived in the course of that unauthorized proceedino-.i 
 Thus it appears that competent knowledge in the declarant is, 
 in all cases, an essential prerequisite to the admission of his 
 testimony ; and although all the Queen's subjects are pre- 
 sumed to have that knowledge, in some deo-ree, where the 
 matter is of public concernment, yet, in other matters, which 
 are not strictly public, though they are interesting to many 
 persons, some particular evidence of such knowledge is gen- 
 erall}' required. 
 
 Sec. 88. When Independent Proof is not Required. 
 
 If the quality of the hearsay itself raises a natural infer- 
 ence that it was derived from persons ac(iuainted with the 
 subject, the courts will not require independent proof of that 
 fact ; and, therefore, where the question turned on a mano- 
 rial custom, depositions, purporting to have been made 1)y 
 copyholders in an ancient suit between a former lord and a 
 person claiming admission to a copyhold, were admitted in 
 evidence without proof that the persons making them Avere 
 either copyholders, or were otherwise acquainted with the 
 customs of the manor ; for the courts assumed that such 
 persons would not have been brought forward as witnesses, 
 had they been ignorant of the su])ject.2 So, an ancient 
 unsigned customary of a manor, which purported to be ex 
 assensu omnium ienantium, and which had lieen handed down 
 with the court rolls from steward to steward, was received 
 as evidence to prove the course of descent within the manor.-* 
 But where, in order to prove the boundaries of a manor, an 
 ancient survey was produced from the proper custody, which 
 purported to have been made in the time of Queen Elizabeth 
 by a deputy surveyor appointed by ihe crown, and to have 
 been founded on the presentments of certain tenants of the 
 manor, whose names were appended to it, the court rejected 
 the document, on the ground that no proof had been given 
 
 ' Rogers v. Wood, 2 B. & Ad. * Freeman v. Phillipps, 4 M. & 
 
 245, 256, recognized by the Court of Sel. 486. 
 
 Exchequer in Crease v. Barrett, 1 » Denn v. Spray, 1 T. R. 456, 473 ; 
 
 C, M. & R. 928, 929 ; see also Evans see also Chapman v. Cowlan, 13 
 
 V. Taylor, 7 Ad. & El. 617, 626, 627. East, 10.
 
 2r>(J 
 
 EVIDENCE. [ciLVr. V. 
 
 t/aif the ikjjutf/ siu^eyor had amj authority to institute the 
 iniinini ; ami sdipin-d of this authority ho not only had no 
 li.rht to make any kind of return, l)ut the presumption that 
 he'irul make onr f«ll to the ground. The paper might have 
 hiHMi writtiii hy any clerk idling in the otfiee where it was 
 lound. from his own imagination, or compiled, possibly, by 
 some interested person in furtherance of a sinister object of 
 his own.' 
 
 Sec. 89. Application of the Exception, 
 
 It mav be exi)cdient to enumerate a few of the principal 
 <luestions, which have been deemed to involve matters of 
 public or general interest, and to contrast these with s(mie 
 utiiers, which the courts have considered to be of too private 
 a nature to allow of their being illustrated by evidence of 
 reinitation. Tluis, hearsay has been admitted where the 
 question related to a right of common,^ a parochial ^ or 
 other distinct modus,^ a manorial custom," a custom of 
 mining in a particular district,® a custom of a corporation to 
 exclude foreigners from trading within a town,'' the limits of a 
 town,^ the boundary between counties, parishes, hamlets or 
 manors,^ or between old and new land in a manor,'" a claim 
 of tolls on a public road,'' the fact whether a road was public 
 oi- i)rivate,'^ a [)rescrii)tive liability to repair sea-walls '^ or 
 bridges,'* a claim of highway,'* a right of ferry,'^ the fact 
 
 ' Evans v. Taylor, 7 Ad. & El. 3 N. & P. 388, S. C. ; Evans t). Rees, 
 
 617. (52f,, 627; 1 Taylor on Ev. 10 Ad. & El. 1.51 ; Plaxton ?». Dare, 
 
 §§ 41S-422. 10 B. & C. 17 ; Thomas v. Jenkins, 
 
 ' Weeks v. Sparke, 1 M. & S. 679. 6 Ad. & El. 52.5. 
 
 ' Mo.seley V. Davies, 11 Price, 162; " Barnes v. Mawson, 1 M. &. S. 
 
 White V. Lisle, 4 Madd. Ch. 214, 224 ; 81 . 
 
 Short V. Lee, 2 Jjic. & W. 464, 473. " Brett v. Beales, M. & M. 416, 
 
 * Rudd V. Wright, 1 Ph. Ev. 240. 418, per Lord Tenterden. 
 
 * Doe V. Sisson, 12 East, 62. " R. v. Bliss, 7 Ad. & El. 555, per 
 
 * Crease v. Barrett, 1 C, M. & R. Williams, J. 
 
 JUO, 928-930. " R. v. Leigh, 10 Ad. & El. 398, 
 
 ' Davies t>. Morgan, 1 C. & J. 587. 409, 411. 
 
 ■ Irehmd v. Powell, cited Pea. Ev. " R. v. Sutton, 8 A. & E. 516 ; 3 
 
 16, -pnr (.'iiAMBRE, J., and recognized N. & P. 569, S. C. 
 
 by Williams, J.. u\ R. v. Bliss, 7 "* Crease tJ. Barrett, 1 C, M. & R. 
 
 A.l. .S: i:i. .-,.-..->. 929, per Parke, B. ; Reed v. Jack- 
 
 " NirhulLs V. Parker, 14 East, 331, son, 1 East, 355. 
 
 n.; Bris.o v. Lomax, 8 A. & E. 198; " Pirn v. Curell, 6 M. & W. 234.
 
 SEC. 89. J HEARSAY — GENERAL OR PUBLIC RIGHTS. 257 
 
 whether land on a river was a public landing-place or not/ 
 the jurisdiction of a court and the fact whether it was a 
 court of record or not,- the existence of a manor,'^ a pre- 
 scriptive right of toll on all malt brought by the west 
 country barges to London/ a right, hy immemorial custom^ 
 claimed by the deputy day meters of London, to measure, 
 shovel, unload and deliver all oysters brought by boat for 
 sale within the limits of the port of London,^ a claim by 
 the lord of a manor to all coals lying under a certain district 
 of the manor,^ a custom of electing churchwardens by a 
 select committee,' and a prescriptive right to free warren 
 as appurtenant to an entire manor.^ On a question whether 
 a certain road was a highway, a copper-plate map was pro- 
 duced, in which it was so described ; it purported to have 
 been taken by the direction of the churchwardens, and proof 
 was offered that it was generally received in the parish as an 
 authentic map ; but Lord Kenyon rejected the evidence.^ 
 So the production of an old printed map of a county from 
 the custody of a county magistrate, who had it some years 
 in his possession, does not make it admissible to prove the 
 l)ounds of the county.^" It would seem, however, that if 
 such a map had been supported by proof of its compilation 
 by persons having particular means of knowledge of the 
 bounds, or had been in some way sanctioned publicly as 
 authentic, it might have been admissible as reputation ; 
 otherwise there is no reason for attaching more value to an 
 engraved map than to a printed book as evidence of its con- 
 tents ; nor does the current use of it by those who reside in 
 the district delineated in it imply an assent to all its details. 
 An old map commonly used at a manor court to define the 
 
 ' Drinkwater v. Porter, 7 C. & P. * Barnes v. Mawson, 1 M. & S. 
 
 181, per Coleridge, J. 77, 81. In that case there was evi- 
 
 ^ Goodtitle V. Dew, Pea. Add. R. dence of an uniform exercise of the 
 
 204. right. 
 
 ' Steel V. Prickett, 2 Stark. 466, ' Berry v. Banner, Pea. 156. 
 
 2)er Abbott, C. J. ; Curzon v. Lomax, * Earl of Carnarvon i;. Villebois, 
 
 5 Esp. 60, per Lord Ellbnborough. 13 M. & W. 313. 
 
 * City of London -w. Clarke, Carth. * Pollard v. Scott, Peake, 18. 
 
 181. " Hammond v. Bradstreet, 10 
 
 ° Laybourn v. Crisp, 4 M. & W. Exch. 390. 
 320. 
 
 17
 
 258 EVIDENCE. [chap. V. 
 
 limits of c'opyhoklsi, is not evidence of a highway, though 
 ways may l>e indicated upon it ; especially if it does not 
 })nrport to describe them :is public ways.' 
 
 The proceedings of a pul)lic meeting called for the purpose 
 of considering al)out repairing a way, at which several pres- 
 ent signed a i)ai)er stating that it was not a public way, is 
 evidence, thougii slight, against the right.- Even where 
 general reputation is evidence, yet the tradition of a par- 
 ticular fact is not ; as that a house once stood in a particular 
 spot. Xor is reputation admissil)le evidence of a farm 
 modus.* Where a question of a public way was in issue, 
 the declarations of a deceased occupier of hind made whilst 
 planting a tree, stating that he planted it to show the bound- 
 ary of the road, are not evidence of the public right, for it is 
 not a statement of general reputation, but of a particular 
 fact.^ The declarations of a deceased lord of the manor as 
 to the extent of the waste arc not evidence in extension of it.^ 
 Where the question was, whether a place was within the 
 limits of a hundred, ancient entries of orders of justices in 
 sessions, stating the i)lace to be within such limits, were held 
 to be evidence of reputation, though the justices were not 
 proved to have been resident within the hundred or county.' 
 So the question being whether certain land is in the i)arish 
 of A. or B., ancient leases, in \vhich they are described as 
 lying in parish B., are evidence that the land is in that 
 parish.^ In assunq)sit for tolls by a lessee of the corpora- 
 tion of Cambridge, an old deed of composition between it 
 and the university, recognizing the right, was admitted in 
 behalf of the plaintiflf, though not proved to have been acted 
 upon.* But not of a mere award, not proved to have been 
 ac(piicsccd in. nor is an award inter alios evidence, as reputa- 
 tion, of the l)oundary of a parish and county.^" The finding 
 
 ' Pipe r. Fulcher. 1 E. & E. 111. " Crease v. Barrett, 1 C, M. & R. 
 
 ' 15arra<;iough v. Johnson, 8 Ad. 919. 
 ^ ^^- ^•*- ^ Duke of Newcastle v. Broxtowe, 
 
 * Irnland v. Powell, Peake Ev. 15. 4 B. & Ad. 273. 
 
 * Pritchett V. Honeyborne, 1 Y. & « Plaxton v. Dare, 10 B. & C. 17. 
 J- 1^5. » Brett v. Beales, M. & M. 416. 
 
 * R. V. BUss, 7 Ad. & El. 550. "» Evans v. Rees, 10 Ad. & El, 151 ; 
 
 Wiseman t). Mackenzie, 5 E.& B. 447.
 
 SEC. 89.J HEARSAY — GENERAL OR PUBLIC RIGHTS. 259 
 
 of a jury, under a commission duly issued out of the duchy 
 court of Lancaster, on the petition of the parties to ascertain 
 the bounds of adjoining manors, was held evidence of such 
 bounds.^ But an interlocutory order of the same court, 
 containing only a provisional arrangement between the parties, 
 is not evidence of reputation.=^ Generally, a verdict, and 
 judgment thereon, in a matter in which reputation is admis- 
 sible evidence, is also admissible ; so of a decree or inquest 
 of office lawfully authorized. Eeputation alone is said to be 
 evidence of the existence of a manor ;3 but it seems that some 
 foundation should be laid by proof of acts done, as holding 
 courts, etc. ; and the production of a deputation to kill game 
 is not of itself sufficient proof even of a colorable title to a 
 real manor, for the lord of a mere reputed manor may 
 grant one.^ 
 
 The rule with regard to the practice from whom the declara- 
 tions proceed has been thus laid down : In cases of rio-hts 
 or customs which are not, strictly speaking, public, jjut are 
 of a general nature and concern a multitude of persons, it 
 seems that hearsay evidence is not admissible, unless it is 
 derived from persons conversant with the neighborhood. On 
 the other hand, actual inhabitancy in the place, the boundaries 
 of which are in dispute, is unnecessary. But where the 
 right is strictly public (a claim of highway, for instance), in 
 which all the public arc interested, it is difficult to say that 
 there ought to l)e any such limitation. In a matter in which 
 all are concerned, reputation from any one appears to be 
 receivable, but almost worthless unless it came from persons 
 who are shown to have smne means of knoioledge, as by 
 living in the neighborhood, or frequently using the road in 
 dispute.^ Thus, a document purporting to be a decree of 
 certain persons, the Lord Treasurer and Chancellor of the 
 Exchequer, etc., who had no authority as a court, was held 
 to be inadmissible evidence as reputation on a question 
 
 ' Brisco V. Lomax, 8 Ad. & El. 198. ^ Per Parke, B., in Ci-ease v. Bar- 
 » Pirn V. Curell, 6 M. & W. 234. rett, 1 C, M. & R. 919 ; Doe d. Moles- 
 ^ Steel V. Prickett, 2 Stark. 463. worth v. Sleeman, 9 Q. B. 301. 
 * Rushworth v. Craven, McCl. & 
 Y. 417.
 
 2G0 EVIDENCE. [CIIAP. V, 
 
 whellicr the city of Chester, before it was made a county 
 itself, fonnotl a part of the county palatinate, Inrause those 
 l)ei-souagcs hail Ironi their situations no peculiar knowledge 
 of the facts.' So the answers of the tenants of a manor to 
 an old commission of survey issued hy the lord, finding the 
 Itounds of the manor in his right to ivreck, are evidence of 
 the former, but not of the latter, they having no peculiar 
 means of knowledge, and the lord's title to such a franchise 
 not being a matter of [)ul)lic concern.'' Such a claim of 
 wreck is one alleeting only the interest of the crown, and 
 not the tenants ; and the case differs in that respect from a 
 rijxht of free warren.'^ 
 
 Aiu'ient answers of the customary tenants of a manor, 
 statin"; the rijj-hts of the lord of the manor to all mines 
 within it, are evidence even against the freeholders, ibr this 
 claim affects all the tenants.^ Declarations of old persons 
 concerning the boundaries of parishes and manors have been 
 jvdinitted in evidence, though they were parishioners, and 
 claimed right of connnon on the wastes which their declara- 
 tions had a tendency to enlarge.* To prove the dedication 
 of land to public use, this species of evidence is peculiarly 
 applicable, and the declarations of the owner, and the use 
 of the lands for public purposes for a long period of time, 
 can often be shown in no other way.^ In order to admit 
 evidence of reputation, it is not necessary that the fact of 
 user should be shown." but such evidence without user is 
 entitled to but little weight, and has been held not to be 
 admissible at all.^ The declarations of persons still alive, 
 are not admissible in proof of reputation.^ 
 
 Sec. 90. In.stances in which such Evidence has been rejected. 
 
 (Jn the other haml. v\'\(\c\\c(i o^ reputation has been rejected 
 where the question was. what usage had obtained in electing 
 
 ' Roprers v. Wood, 2 B. & Ad. 24.'). « Hunter r. Sandy Hill, 6 Hill (N. 
 
 " Talbot V. Le\vis, 1 C, M. & R. Y.), 407 ; Godfrey ■». Alton, 12 111. 29. 
 
 ^^^- ^ Crease v. Barrett, ante. 
 
 ' Earl of Camar\'on v. Villebois, » Weeks v. Sparks, 1 M. & S. 
 
 13 M. & W. 313. ma ; Rushworth v. Craven, McCl. 
 
 * Crease v. BaiTott, supra. & Y. 417. 
 
 * NichollstJ. Parker, 14 East, 531. • Woolway u Rowe, 1 Ad. & El. 
 
 117.
 
 SEC. 90. j HEARSAY GENERAL OR PUBLIC RIGHTS. 261 
 
 a schoolmaster to a grammar school/ whether the sheriff of 
 the county of Chester or the corporation of the city of Ches- 
 ter were bound to execute criminals,^ whether the lord of a 
 manor had a prescriptive right to all wreck within his mano- 
 rial boundaries,^ whether the plaintiff was exclusive owner 
 of the soil, or had a right of common only,* whether the land 
 in dispute had been purchased by a former occupier, or was 
 part of an entailed estate, of which he had been tenant for 
 life,^ what patron formerly had the right of presentation to 
 a living,^ whether a farm modus existed, and what was its 
 nature,''^ whether a party had a private right of way over a 
 particular field, ^ whether the tenants of a particular copy- 
 hold estate had the right of cutting and selling wood,^ and 
 what were the boundaries between two private estates.^" 
 Where, however, it was shown by direct testimony, the 
 admission of which was luiopposed, that the boundaries of 
 the farm in question were identical with those of a hamlet, 
 evidence of reputation as to the hamlet boundaries was let in 
 for the purpose of proving those of the farm ; for though it 
 was objected that evidence should not be thus indirectly 
 admitted in a dispute between private individuals, the court 
 overruled the objection, Mr. Justice Coleridge observing 
 that " he never heard that a fact was not to be proved in the 
 
 * Withnell v. Gai-tham, 1 Esp. 324, per Lord Lyndhurst. See, how- 
 325, per Lord Ken yon. ever, Webb v. Petts, Noy, 44 ; Don- 
 
 * R. V. Antrobus, 2 Ad. & El. 793- nison v. Elsley, 3 Eag. & Y. 1396, n.; 
 795. and cases cited 1 Ph. Ev. 241, n. 2. 
 
 ^ Talbot V. Lewis, 1 C, M. & R. " *S'e?rt.We,^ej-DAMPiBR, J., inWeeks 
 
 495. V. Spai-ke, 1 M. & Sel. 691 ; and per 
 
 * Richards v. Bassett, 10 B. & C. Lord Kenyon, in Reed v. Jackson, 
 663, semble, per Littledalb, J., sed 1 East, 357. 
 
 qu. " Blackett v. Lowes, 2 M. & Sel. 
 
 * Doe V. Thomas, 14 East, 323. 494, 500, per Lord Ellenborough. 
 
 * Ptr Lord Kenyon, in R. v. Eris- " Clothier v. Chapman, 14 East, 
 well, 3 T. R. 723, questioning Bishop 331, n. By the Roman law, evi- 
 of Meath v. Lord Belfield, 1 Wils. dence of reputation seems to have 
 215. been deemed admissible, even in 
 
 ■* Wells V. Jesus College, 7 C. & matters of private boundary. See 
 
 P. 284, per Alderson, B.; White v. Mascard. de Prob. vol. 1, p. 391, 
 
 Lisle, 4 Madd. Ch. 214, 224, 225 ; Concl. 396. 
 Wright V. Rudd, cited 1 Ph. Ev. 241,
 
 202 EVIDENCE. JCIIAP. V. 
 
 saino maiHior when subsidiary us when it was the very mat- 
 ter in issue." ' 
 
 Ki'piitatioH is a(lini>sil»le as well ar/aiiifit as in favor of a 
 public riglit, and it lualvis no difference whether the declar- • 
 ations expressly negative the right, or set up an inconsistent 
 claim, or simi)ly omit all mention of the right, at a time 
 and u\w\\ an occasion Avhen notice of it might rciisonably be 
 expected.- Ke[)utation, tradition, or hearsay, as it may 
 properly bi" callecj, is from necessity admissible to prove 
 historical facts of former ages, about which no contempora- 
 neous living person can testify. This species of evidence is 
 disarmed of much of its danger from the permanent etfects 
 which are visible to conlirm or contradict it, the numl)er of 
 sources whence it may spring, the number of persons inter- 
 ested in i)reserving the recollection of the matters in question, 
 and the consecjueiit facilities for detecting false testimony. 
 Rights of pui>lic or general interest, which are supposed to 
 have been exercised in times past, partake in some degree of 
 the nature of historical facts, and especially in this, that it is 
 barely i)()ssible to obtain original proof of them. The law, 
 conse(iuently, allows them to be proved by general reputa- 
 tion, that is, by the declarations of deceased persons who 
 may l)e presumed to have had competent knowledge on the 
 subject,' and by old documents of various kinds, which, 
 under ordinary circumstances, would be rejected for want 
 of originality, etc. But in order to guard against fraud, 
 it is an established qualification to the exception to the rule, 
 that such declarations, in order to be admissible, must have 
 been made before any controversy arose relating to the matter 
 about which they were made, or, in other words, unless they 
 ^vere made ante litem motam. This qualification is of the 
 highest importance, as, says Mr. Taylor,^ " the ground on 
 which the declarations of deceased persons are admitted at 
 all is, that they are the natural eflusion of a party who is 
 
 ' Thomas r. Jenkins, 6 Ad. & El. Anglesey v. Hatherton, 10 M. & W. 
 
 .525, 520. See al.so BriHco v. Loraax, 218. 
 8 A<1. & El. 198, 213. ^ Crease v. Barrett, 1 C, M. & R. 
 
 ' (.'oLERiDGK. J., in Diinkwater v. 919. 
 Porter, 7 C. & P. 181 ; Marquis of * Taylor on Ev. § 628 (Tth ed.).
 
 SEC. 90.] HEARSAY GENERAL OR PUBLIC RIGHTS. 263 
 
 presumed to know the truth and to speak upon an occasion 
 when his mind stands in an even position, witliout any temp- 
 tation to exceed or fall short of the truth ; " ' and no person 
 is presumed to be thus indifferent in reference to matters in 
 actual controversy, as, when a controversy has once com- 
 menced, people generally take sides, and what is then said 
 by them, is said under the bias of their peculiar views or 
 prejudice. Consequently all ex parte statements, whether 
 under oath or not, are rejected if they were made subsequent 
 to the date of the controversy.^ 
 
 By the Roman law, the term lis mota was applied strictly 
 to the commencement of the action, and had no reference to 
 any antecedent period. But with us the term is given a 
 broader signification, and is understood as being the com- 
 mencement of the controversy^ and not necessarily the com- 
 mencement of the suit.^ But it seems that whatever may be 
 the precise limits of the rule of exclusion, declarations will 
 not be rejected because they were made for the express purpose 
 of preventing a controversy,*^ nor, if no dispute has arisen, 
 although made in direct support of the title of the declarant;^ 
 and the fact that the declarant stood, or believed that he stood, 
 in pari jure with the party relying on the declaration, will 
 afford no ground for the rejection of the evidence.*^ In order 
 to exclude this class of evidence upon the ground that a con- 
 troversy had arisen before the declarations were made, it 
 must appear that the dispute related to the particidar subject 
 in issue. Bayley, J.,''' announced the rule as it is now gen- 
 erally held, as follows : "The distinction has been correctly 
 taken that ivhere tlie Us mota loas on the very point, the dec- 
 larations of persons would not be evidence, because you can- 
 
 ^ Lord Eldon in Whitelocke x). * Berkley Peei-age, ajiite. 
 
 Baker, 13 Ves. 514. " Doe v. Davies, 16 L. J., N. S. 
 
 ^ Berkley Peerage, 4 Camp. 401 ; 222, Q. B. 
 
 Richards v. Bassett, 10 B. & C. 657 ; ^ Doe v. Tarver, Ry. & M. 141 ; 
 
 Monktou V. Att'y-Gen., 2 Russ. & Moseley v. Davies, 11 Price, 162; 
 
 My. 160. Nicholls v. Parker, 14 East, 331, n.; 
 
 ^ Berkley Peerage, 4 Camp. 417 ; Davies v. Morgan, 1 C. & J. 593 ; 
 
 Monkton v. Att'y-Gen., 2 Russ. & Harwood v. Sims, Wigbter, 112; 
 
 My. 161 ; Davies -«. Lowndes, 7 Scott Deacle v. Hancock, 13 Price, 296. 
 
 N. R. 214 ; Slaucy v. "Wade, 1 My. ^ Freeman v. Phillips, 4 M. & S. 
 
 & Cr. 338. 497.
 
 2G4 EVIDKNCE. [chap. V. 
 
 not be .sure that, in lulinittini; the depositions of witnesses 
 .selected and hrouirht forwainl on a particular side of the 
 «lue8tiou, who einhaik to a ceitain degree witii the feelings 
 auti prejudices belonging to that particular side, you are 
 drawing evidence from [)erfectly unpolluted sources. But 
 where the point in controversy is foreign to that which was 
 before controverted, there iicvi'r has been a lis mota, and 
 conse(iuently the objection does not ap[)ly." But while in 
 one ease' it was insisted by Mansfield, J., that it made no 
 diderence, so far as the question of admissii)ility was con- 
 ( I ined, whether the declarant knew of the existence of the 
 controversy or not, yet in the same case Barox Graham 
 took a contrary ground, and insisted that such declarations 
 are admissible where tJie declarant could not have known that 
 a suit ivas commenced or contemplated, and this now seems to 
 be the generally accepted rule,^ The entire rule as to lis 
 mota applies with equal force in reference to declaratious of 
 persons oticred in proof of pedigree. 
 
 Hearsay is good evidence to prove who is a person's grand- 
 father, when he married, what children he had, or the death 
 of a rclatiDii beyond sea, etc.^ Thus the declaration of a 
 deceased parent and another relative were admitted to show 
 which of several children born at a birth was the eldest.* 
 So declarations of deceased members of a family 
 
 ' Berkley Peerage, 4 Camp. 417. ' Butler's Nisi Prius, 294-5 ; 
 
 ' BRorfiHA.M, J., in Monkton v. Bridger v. Huett, 2 F. & F. 35. 
 
 Att'y-Gen.. 2 Ru.ss. & My. 147 ; * 12 Vin. Abr. 247. 
 Reilley v. Fitzgerald, 6 Ir. Eq. 349.
 
 CHAPTER VI. 
 
 HEARSAY TO PROVE PEDIGREE AND RELATIONSHIP. 
 
 SECTION. 
 
 91. Pedigree, How may be Proved. 
 
 92. Evidence should come from Undoubted Source. 
 
 93. Rule in this Country. 
 
 94. Admissible to Prove Marriag-e, Etc. 
 
 95. Old Documents, Inscriptions, Etc., Admissible to Establish. 
 
 96. Entries in Family Bibles, Etc. 
 
 97. Declarations of Deceased Persons. 
 
 98. Hearsay of What Persons Admissible in Questions of Pedigree. 
 
 Sec. 91. Pedigree, How may be Proved. 
 
 A second exception to the general rule rejecting hearsay- 
 evidence is, made in respect to proof of pedigree,' and this 
 exce])tion is recognized upon the ground of necessity, and 
 is founded upon the oljvious difficulty of tracing descent and 
 relationship of deceased members of families by any other 
 evidence. And it is upon this ground that the declarations 
 of deceased parents are received relative to the legitimacy of 
 children,- and general reputation, in this respect, in the 
 neighborhood, has been held admissible ; but the value of 
 such evidence will depend upon the circumstances of each 
 case,^ made of course " ante litem motam.''''^ The general 
 reputation of a family, proved by a surviving member of it ; 
 entries contained in books, such as family bibles, if produced 
 from the proper custody, even although there be no evidence 
 of the handwriting or authorship of such entries ;S corre- 
 
 « 
 
 ' Kaywood v. Barnett, 3 Dev. & 213 ; S. C, 1 How. (U. S.) 219 ; 
 B. (N. C.) L. 91 ; Elliott ij. Piersall, Gaines v. New Orleans, 6 Wall. (U. 
 1 Pet. (U. S.) 328; Jackson vi. S.) 642. 
 
 Cooley, 8 John. (N. Y.) 128 ; Wal- ' Gaines v. New Orleans, ante. 
 dron V. Tuttle, 4 N. H. 371 ; Kelly * See 1 Phill. Ev. 206, 10th ed. ; 
 1). McGuire, 15 Ark. 555 ; Crawford Gee v. Ward, 7 E. & B. 509. 
 1). Blackburn, 17 Md. 49 ; Copes v. ^ Hubbard v. Lees, L. Rep., 1 Ex. 
 Pearce, 7 Gill (Md.), 247. 255, 258. 
 
 "^ Jewell V. Jewell, 17 Pet. (U. S.)
 
 2iU] p:vii)EXCE. [chap. vi. 
 
 spondoiice between relatives ; recitals in deeds ; descriptions 
 in wills ; inscriptions on toml)stones. rings, monuments, or 
 rotlin plates ; charts of pedigrees, made or adopted by 
 deceasfd nicinlxis of the family, etc., have severally been 
 held receival)le in evidence for this purpose.' And it is 
 impossible to dispense with this kind of evidence, espcdally 
 ill profjf of re)note ami collateral matters ; but great care 
 should be observed when the actual point in issue in a cause 
 dei)ends wholly or chiefly upon it. It is, from its nature, 
 very nuich exposed to fraud and fabrication ; and even 
 assuming the declaration, inscription, etc., correctly reported 
 bv the medium of evidence used, many instances have been 
 shown how erroneous is the assumption that all the members 
 of a family, especially in the inferior walks of life, are even 
 tolerably conversant with the particulars of its pedigree.* 
 
 Sec. 92. Evidence should come from Undoubted Source. 
 
 The evidence should come from some one connected with the 
 iainily whose pedigree or relationship to a deceased person is 
 ^ouLdit to be established, by blood, or from some one who has 
 some personal knowhidge of the family, or the facts of which 
 they speak, or those who have derived knowledge relative there- 
 to from persons connected with the family, or those particularly 
 acquainted therewith, or the evidence will not be received ;^ 
 as to prove who are heirs of a deceased i)erson ;'* so, to prove 
 who was the mother of a child, the declarations of a father 
 
 ' In a suit in which the plaintiff 111. 502 ; Armstrong v. McDonald, 
 
 alleged that he was the natural son 10 Barb. (N. Y.) 300; Binney V. 
 
 of A., a declaration by a deceased Ham, 3 A. K. Marsh. (Ky.) 322; 
 
 brother of A. that the plaintiff was Crawford v. Blackburn, 17 Md. 49 ; 
 
 A.'s natural son, was held to be Kaywood v. Bai-nett, 3 Dev. & B. 
 
 .inadmissible. Ciispin v. Doglioni, (N. C.) 91 ; Chapman v. Chapman, 
 
 32 L. .1., P. & M. 109. 2 Conn. 347 ; P^veringham v. Mes- 
 
 '^ See the judgment of the master room, 2 Brev. (S. C.) 461 ; Gilchrist 
 
 of the rolls in Crouch I'. Hooper, 16 v. Martin, 1 Bailey (S. C), 492; 
 
 Beav. 182. Webb v. Richardson, 42 Vt. 465 ; 
 
 ' Carter v. Buchanan, 9 Ga. 539 ; Jackson v. Cooley, 8 Johns. (N. Y.) 
 
 Jackson v. Browner, 18 Johns. (N. 128 ; Elliott v. Piersoll, 1 Pet. (U. 
 
 Y.) 37 ; Moers r. Bunker, 29 N. H. S.) 328 ; WaldrontJ. Tuttle, 4 N. H. 
 
 420 ; Strickland v. Poole, 1 Dallas 371 ; Stoin v. Bowman, 13 Pet. (U. 
 
 (U. S.), 14; Kelly v. McGuire, 15 S.) 209. 
 
 Ark. 5.j5 ; Greenwood v. Spiller, 3 * Greenwood v. Spiller, 3 111. 502.
 
 SEC. 93.] HEARSAY PEDIGREE AND RELATIONSHIP. 267 
 
 ill reference thereto may be received ;i so, too, the declara- 
 tions of a mother in reference to the paternity of her son 
 may be given in evidence ;^ so the declaration of any 
 deceased person, as to who were his or her heirs f so to 
 prove the death of a person after the lapse of a long time, in 
 which he has not been heard from.* But this species of 
 evidence, coming from living persons connected with the 
 persons deceased, and the declarations of such deceased 
 persons, are entitled to more weight than those coming 
 from persons who had no connection with the family.^ And 
 all such evidence is to l)e weighed in view of the circum- 
 stances under which the declarations were made, whether 
 any litigation had been commenced involving the relation- 
 ship, and all the circumstances calculated to throw any light 
 upon the motives or interest of the person in making them.® 
 
 Sec. 93. Rule in this Country. 
 
 The rule in reference to this class of evidence was given by 
 the court in a case in the United States Supreme Court,' 
 thus : " The hearsay evidence admissible in cases of pedigree 
 is limited to those connected with the family who are sup- 
 posed to have known the relationship existing, and must 
 have been made before the suit was commenced." In a New 
 York case^ it was held that " where the witnesses are not 
 connected with the family, have no personal knowledge of 
 the facts of which they speak, and have not derived their 
 information from persons connected or particularly acquainted 
 with the family, but speak generally of what they have heard 
 or understood, such evidence is insufficient to establish pedi- 
 gree." In another case,^ where a letter from a deceased 
 
 ^ United States v. Saunders, 1 ® United States v. Saunders, 1 
 
 Hempst. (Tenn.)483. Hempst. (Tenn.) 483; Canjolle v. 
 
 2 Canjolle v. Ferrie, 26 Barb. (N. Ferrie, 2 Barb. (N. Y.) 177. 
 
 Y.) 177. ■' Stein v. Bowman, 13 Pet. (U. 
 
 = Moffit V. Witherspoon, 10 Ired. S.) 209. 
 
 (N. C.) 185. * Jackson v. Browner, 18 Johns. 
 
 * Miner v. Boneham, 15 Johns. (N. Y.) 37. 
 
 (N. Y.) 226 ; Stouvenel v. Stevens, " Elliot v. Piersoll, 1 Pet. (U. S.) 
 
 2 Daly (N. Y. C. P.), 319. 328. 
 
 ^ Sjiiinders v. Fuller, 4 Humph. 
 (Tenn.) 516.
 
 2(j,S EVIDENCE. [CUAr. VI. 
 
 nieinl)cr of a family, staling the pedigree of the family, 
 sworn to by the wife a.s having l)een written by her hu.s]>:ind, 
 and as containing facts of which he had often spoken to her 
 in his life-tiiue, wius oflered. it was held that both the letter 
 and the testimony of the wife Avcre competent evidence. . 
 
 So, too, in (piestions of pedigree the declarations of de- 
 ceased members of a family in reference to marriages arc 
 admissible; bnt when the marriage is essential to be estab- 
 lished as a snbstantive fact, it cannot be estal)lished by such 
 declarations.' The date of the birth of a child may be 
 pro\ed by the declarations of deccjised members of the 
 lainily, even though there is a family register in which the 
 l)irth of the child is registered. The reason for this rule is, 
 that l)oth species of evidence are of equal weight and charac- 
 ter, the one not being entitled to any more consideration 
 than the other.^ But its age cannot be established in this Avay ;^ 
 nor the j)^<^ce of its birth;" or any fact that is susceptible 
 of proof l)y witnesses who speak from their own knowledge.^ 
 
 Sec 94. Admissible to Prove Marriage, Etc. 
 
 80 hearsay evidence is admissible in some States to prove the 
 marriage of parties by proving cohabitation.^ So it is com- 
 petent to prove, by the delaration of the parents of a 
 child, whether they were married when the child was born ; 
 iuit such evidence is not admissible to prove that children 
 born in wedlock are illegitimate by reason of non access.' 
 so such evidence is admissible to prove whom a man married, 
 or whom a woman married, what children they had, whether 
 legitimate or illegitimate, that either died aln'oad; and these 
 facts may be established by the declarations of deceased mem- 
 
 * WestBeld v. Warren, 8 N. J. L. Brooks v. Clay, 3 A. K. Marsh. 
 249. (Ky.) 54.5. 
 
 ' Clements v. Hunt, 1 Jones (N. ^ Mima Queen v. Hepbum, 7 
 
 C), 400. Cranch (U. S.), 290. 
 
 * Albertson v. Robertson, 1 Dallas ' O'Gara v. Eisenlohr, 38 N. Y. 
 (U. S.). 9. ■ 296. 
 
 * Wilming^ton v. Burlington, 4 ' Stevens v. Moss, Cowi:)er, 491 ; 
 Pif^k. (Ma.ss.) 174 ; Shearer v. Clay, Bowles v. Bingham, 2 Munf. (Va.) 
 1 Lit. (Ky.) 260 ; Independence v. 442. 
 
 Pompton, 4 Halst. (N. J.) 209;
 
 SEC. 95.J HEARSAY — PEDIGREE AND RELATIONSHIP. 269 
 
 bers of the family ; but the dechiratioiis of those not con- 
 nected with the family (as neighbors or acquaintances) are 
 not receivable.^ 
 
 Sec. 95. Old Documents, Inscriptions, Etc., Admissible to Establish. 
 
 So in such cases recitals in old deeds are evidence;^ 
 inscriptions on old gravestones, the finding of a special 
 verdict between other members of the family statino- a 
 pedigree, the statement of a pedigree in an old bill in 
 chancery, as well as herald books and entries in family 
 bibles ;3 but, so far as the allegations in a bill in chancery 
 are concerned, it is proper to say that generally, under 
 the modern rules of evidence, such evidence is not reo;arded 
 as admissible ; but if the circumstances, the relations of the 
 parties and the nature of the issue are such as to afford no 
 ground for supposing that the orator's mind had any bias, 
 and that, so far as these facts are concerned, he had no in- 
 terest to serve, there can be no question but that the evidence 
 would be received for what it was worth in the establish- 
 ment of a pedigree."* So statements in old wills bearing upon 
 questions of pedigree or relationship, although the will is 
 canceled, and never was operative, but which was found 
 among the papers of the testator, a deceased member of the 
 family, whose pedigree are in question, is admissible.^ So a 
 register of births and marriages kept in the records of a town 
 is admissible on questions of pedigree.® So ex jxirte affidavits 
 taken abroad have been held admissible to prove pedigree, 
 and to establish boundaries ; also to establish the identity of a 
 person.''' So depositions of deceased witnesses, used in a 
 
 ' Vowles V. Young-, 13 Ves. Jr. v. Waters, 4 C. & P. 376 ; Good- 
 
 140 ; Whitlock v. Baker, id. 511. right v. Moss, 2 Cowp. 594. 
 
 ^ Little V. Palister, 4 Me. 209 ; * Berkley's Peerage Case, 2 Bing. 
 
 Buller's Nisi Prius, 233, 294 ; Morris 86. 
 
 V. Vandever, 1 Dal. (U. S.) 67 ; ^ Johnson v. Earl Pembroke, 11 
 
 Paxton V. Price, 1 Yeates (Penn.), East, 503. 
 
 500. 6 Miner v. Boneham, 15 Johns. 
 
 ' Curtis V. Patton, 6 S. & R. (N. Y.) 226. 
 
 (Penn.) 135 ; Kidney v. Cockburn, ' Taylor v. Simpson, 2 Ball. (U. 
 
 2 R. & M. 163 ; Taylor ^ Cole, 7 T. S.) 117; Sturgeon v. Waugh, 2 
 
 R. 3; Lovell v. Arnold, 2 Munf. Yeates (Penn.), 467 ; Lilly u Kin tz- 
 
 (Va.) 167 ; Pegram v. Jaltell, 2 miller, 1 id. 28. 
 Harr. & Munf. (Va.) 281 ; Whittuck
 
 270 EVIDENCE. [CIIAI*. VI. 
 
 ciiusc hotwceii other parties, are admissible upon a question 
 of i>i'di<.,'reo, ulu'ther taken before or after the litigation 
 conmienceJ in which the (piestion of pedigree is involved.' 
 Inscriptions upon rings Avorn by a former member of the 
 family are held admissible to prove pedigree.^ 
 
 Lord Euskine, in commenting upon the class of evidence 
 competent to prove a pedigree, said: "Upon questions of 
 pedigree, inscriptions u[)()n tombstones are admitted, as it 
 nmst be supposed that the relations of a family would not 
 l)ermit an inscription without foundation to remain. So en- 
 gravings upon rings are admitted, upon the presumption that 
 a i)erson would not wear a ring with an error upon it." 
 Charts of pedigree hung up in a family mansion, or in a 
 situation to indicate that it w'as recognized and accepted by 
 the f.unily as correct;^ coat armor,'* and mural inscrijilions, 
 giving an historical account of a family, placed in a chancel 
 which was formerly used as a burial place' for the family, 
 located in a parish where the family were long resident 
 proprietors, have been also held admissible ; and where 
 the articles themselves cannot be produced, copies thereof 
 may be used.^ In this case, which involved a question 
 of pedigree, the existence of the mural inscriptions and 
 their obliteration, about twenty-tour years before the 
 trial, was established ; and the court held that a copy 
 thereof was competent evidence, provided the genuineness 
 of the original inscriptions was established. This class 
 of ('vidcnce, however, may always be impeached, and Mr. 
 1'hillips, in vol. 1, p. 222 of his work on Evidence, gives 
 several instances in which that species of evidence has been 
 completely overthrown. None of this species of evidence is 
 conclusive, but its genuineness and the weight to be given it 
 depend largely upon the circumstances of each case, the con- 
 dition in which it was found, and a multitude of circum- 
 
 ' Pcake'.s Ev. 24, note, citing MS. » Goodright v. Moss, 2 Cowper, 
 
 case of Bordereau v. Montgomery ; 594. 
 
 Jenkins v. Tom, et ah, Wa.sh. (U. S.) ♦ Cooke's Littleton, 27 a. 
 
 12.3 ; Lovell V. Arnold, 2 Munf. (Va.) " Slaney v. Ward, 1 My. & Cr. 
 
 l**"^- 354. 
 
 • Vowles V. Young, 13 Ves. 144.
 
 SEC. 96. j HEARSAY rEDIGREE AXD RELATIONSHIP. 271 
 
 stances that tend to convince the mind that a thing is real or 
 spurious, in reference to which no rules can be given. 
 
 So it may be said, generally, that any species of evidence 
 tending to show the declarations of deceased relatives upon 
 the question of relationship, which is established as genuine, 
 and which leaves no doubt as to their iniderstandinir of the 
 matter, is always admissible to establish pedigree. The 
 register of births, deaths or marriages, in a family bible,^ to 
 which all the family has access, gives it that validity which 
 it would not have if the book remained in the exclusive 
 possession of the father. Entries in family bibles have, 
 therefore, become common evidence of pedigree where there 
 is no register of l)irtlis or baptism, or entries in the diary of 
 a physician who was present at the birth of a child.^ So, 
 memoranda in other books, as an almanac,^ a prayer book,^ 
 as well as entries in any other documents, books or papers, 
 kept in and accessible to the family, are admissible. 
 
 Declarations in a famil}% descriptions in wills, inscriptions 
 upon monuments, in bibles or other books, and in registry 
 books, are all admitted, upon the principle that they are the 
 natural effusions of a party who must know the truth, and 
 who speaks upon an occasion where the mind stands in an 
 even position, without any temptation to exceed or fall short 
 of it.^ 
 
 Sec. 96. Entrirs in Family Bibles, Etc. 
 
 Entries in a family bible are admissible in evidence, on 
 the ground that being in that place, they are to be taken 
 as assented to by those having the custody of the book ; 
 proof of the handwriting of the entries is therefore imma- 
 terial.^ It seems, however, that in the case of any other 
 
 ^ Leggett V. Boyd, 3 Wend. (N. ^ Per Lord Eldon, Whitelocke v. 
 
 Y.) 376 ; Goodright v. Moss, Cowp. Baker, 13 Ves. 514 ; Higham v. 
 
 594; Whitlock v. Baker, 13 Vesey, Ridgway, 10 East, 109; Berkley 
 
 511 ; Higham v. Ridgway, 10 East, Peerage Case, 4 Camp. 418. And 
 
 120. see the Slane Peerage Case, 5 CI. & 
 
 ^ Ames V. Middleton, 23 Barb. F. 23 ; and the Vaux Peerage, ib. 
 
 (N. Y.) 571. 526. 
 
 ^ Herbert v. Tucknall, L. Raym. « Hubbard v. Lees, L. R., 1 Ex. 
 
 84. 255. See also Berkley Peerage 
 
 * Leigh's Peerage, printed in Case, 4 Camp. 421, pei- Lords 
 
 1829, p. 310. Ellenborough and Redesdale.
 
 272 EVIDENCE. [CIIAP. VI. 
 
 book the entries must be proved to have been iiiiide hy a 
 mcinber of the family ;^ or tliat they have been treated 
 bv a relative as a oorreot family memorial.^ A pedigree 
 Avhith has \o\vj; Uuivj; ii[) in a family mansion is good evidence 
 in such cases ;^ or a marriage certilicate kept by the family.* 
 A mimile-book of a visitation, signed by the heads of the 
 family, has been admitted, though produced from a private 
 lihrary.^ A signed pedigree, delivered to the Herald's 
 College by virtue of a commission under which the college 
 Avas authorized to receive and enroll such pedigrees w:is 
 admitted.* So, a paper in the handwriting of a deceased 
 member of the family, purporting to give a genealogical 
 account of the family, was held admissible, though never 
 made public by the writer, erroneous in many jJarticulars, 
 and professing to be founded partli/ on hearsay.' So, a ring, 
 worn publicly, stating the date of the pei son's death whose 
 name is engraved upon it. So, a description of a party as 
 " daughter and heir," in a deed signed by the party so 
 described.^ But an old pedigree, professing on the face of it 
 to be compiled from " registers, wills, monumental inscrip- 
 tions, family records and history," and going back to a 
 fabulous date, is not evidence, though proved to be signed 
 by members of the family, except so far as it relates to per- 
 sons presumably known to them, or respecting whom they 
 may have olitained information from other members of the 
 family. Whether the mere recognition of a pedigree by a 
 deceased ancestor will make it legitimate evidence (except 
 against claimants under him), is doubtful.^ The ground 
 u[)on wliicli the inscription on a tombstone, or a tablet in a 
 church, is admitted is, that it is presumed to have been put 
 there by a member of the family cognizant of the facts, and 
 whose declaration would be evidence.^" The memoranda of 
 
 ' Tracy Peerage, Hubback Evid. '' Monkton v. Att.-Gen., 2 Russ. 
 
 of Succession, 673. & My. 147. 
 
 ' Hood V. Beauchamp, 8 Sim. 29. * Jenkins v. Davies, suj)ra ; Smith 
 
 • Goodi-ight V. Moss, Cowp. 594. v. Tebbitt, L. R., 1 P. & M. 354. 
 
 • Jenkins v. Dnvies, 10 Q B. 314. * Davies v. Lowndes, 6 M. & Gr. 
 
 • Pirtoti ). Walker, 1 Stra. mi. 471. 
 
 • Shr.wsbury Peerage Case, 7 H. '"Parke, B., in Davies v. 
 L. C. 19. Lo^vndes, 512.
 
 SEC. 97.J HEARSAY PEDIGKEE AND RELATIONSHIP. 273 
 
 a parent are good evidence to prove the time of the birth of 
 a child.^ 
 
 Sec. 97. Declarations of Deceased Persons. 
 
 But tlie declaration of a father as to the place of birth of 
 a son was considered inadmissil)le, as being a mere question 
 of locality, and not of pedigree,^ 
 
 Where statements contained in monumental inscriptions, 
 and declarations made by a deceased relation, were offered 
 in evidence upon the trial of an issue out of chancery to 
 prove the ages of the parties referred to, Tindal, C. J., re- 
 jected the evidence ; but Lord Brougham, C, after argu- 
 ment, expressed a very strong opinion in favor of it, and 
 afterwards stated that he had the concurring opinions of 
 LiTTLEDALE, J., and Parke, J.; but the suit being compro- 
 mised, no further opinion was delivered.^ An inscription on 
 a tombstone, stating the death of a party at the age of 90, 
 was admitted as evidence of the age.'* So, an old tracing 
 from an effaced monument has been admitted ;^ a bill in 
 chancery by a father, stating his pedigree.^ An ansioer in 
 chancery, sworn ante litam motam, seems unexceptionable 
 
 ' Herbert v. Tnckal, T. Raym. unde. Rishton v. Nesbitt, 2 M, & 
 
 84 ; Brune v. Rawlings, 7 East, 290. Rob. 554 ; Hood v. Beauchamp, 
 
 ^ R. V. Erith, 8 East, 542. So, in Hubback Evid. of Succession, 468, 
 
 Shields v. Boucher, 1 De G. & Sm. cited 1 Tayl. Evid., § 582. The 
 
 40, WiLDB, C. J., rejected, upon the declarations of a party as to his 
 
 trial of an issue, declarations of a own illegitimacy, or place of birth, 
 
 relation as to the part of England seem inadmissible except against 
 
 from which he had originally come ; himself, or those claiming under him 
 
 but on moving for a new trial, by title posterior to the declaration. 
 
 Knight-Beuce, V.-C, expressed a R. v. Rishworth, 2 Q. B. 476. 
 
 strong opinion in favor of their ad- ^ Kidney v. Cockburn, 2 Russ. & 
 
 missibility in a case of mere gene- My. 167. 
 
 alogy, and with a view to identify * Rider v. Malbone, cor. Little- 
 
 ancestors, and distinguished R. v. dale, J., cited id., pp. 169, 170. 
 
 Erith, siipra. Accord, per Kinders- ^ Slaney v. Wade, 7 Sim. 595. 
 
 LEY, V.-C, in Bauer v. Mitford, 7 ' Taylor v. Cole, 7 T. R. 3, n. But 
 
 "W. R. 570, June, 1859 ; and decla- this is contrary to the resolution of 
 
 rations of a party, showing that he the judges in the Banbury Peerage 
 
 has or had relations living at A., Case, 2 Selw. N. P , 2nd ed. 773, 
 
 have been admitted to identify per- and to Boileau v. Rutlin, 2 Exch. 
 
 sons whose existence is proved ali- 678. 
 
 18
 
 274 EVIDENCE. [CIIAP. VI. 
 
 jis cvidciico of petligivo incideiitully set forth in it.' The 
 recital in :i fiiniily conveyance l)y a inistee is evidence of 
 parentage.* So an old and cancelled will has ])een allowed 
 :ls I'vidiMice of the existence and relative ages of certain 
 deccjused niend)ers of the family from whom both parties de- 
 rived title.'' The probate of a will is \wt primary evidence 
 for this pnr[)()se.' The will itself and signature of the tes- 
 tator must be proved, unless the age of the document or 
 other circumstances dispense with such proof; it is said, 
 however, that the " ledger book " (ir " original rolls " of the 
 Ecclesiastical Court, containing an enrollment of the will, 
 are admissible evidence to prove relationshii).^ It is not 
 necessary that the declarations should l)e contemi)oraneous 
 with the facts declared ; thus a person's declaration, that his 
 irrandmother's maiden name was A. B. is admissible.*' Nor 
 is it necessary that the fact declared should be in the personal 
 knowledge of the declarant ; thus the declaration of A. as 
 to what he lu ard IVom li. is admissible, if both be relations.' 
 Declaralioiu of the kind above described are slridli/ admis- 
 sible only in inquiries relating to descent or relationship, or in 
 tracing the devolution of property. In proving recent events, 
 such as the place of birth, age, death, etc., of a person, where 
 that fact is directly in issue, stricter proof may be reasonably 
 rccpiired. General re[)utation is good evidence in pedigree 
 cases, as of heirship,® or marriage f but if it appears on 
 cross-examination or otherwise that the witness is speaking 
 of evidence given him by some individual, even as to general 
 reputation, the evidence ceases to be admissible.'" 
 
 * In the Wharton Peerage Case, 12 * Lord Brougham, C, Monkton 
 CI. & Fin. 295, an answer, swom v. Att.-Gen., 2 Russ. & My. lijS. 
 but not tiled, was rejected as '' I<1. 1(^2. 
 
 evidence of pedigree. * Bridger v. Huett, 2 F. & F. 35. 
 
 ' Slaney v. Wade, supra. ® Evans v. Morgan, 2 C. & J. 453; 
 
 ' Johnson v. Earl of Peml)roke, Shedden it. Patrick, 2 Sw. & Tr. 
 
 llEa.st, 504. 170; 30 L. J., P. M. & A. 217; 
 
 * Wilde 1). Oi-nierod, 1 M. & Rotib. Campl)ell v. Campbell, L. R., 1 H. 
 4f3C ; Dike v. Polhill, Ld. Raym. 744. L. Sc. 201. 
 
 * B. N. P. 246. " Shedden v. Patrick, supra.
 
 SEC. 98.] HEARSAY PEDIGREE AND RELATIONSHIP. 275 
 
 Sec. 98. Hearsay of What Persons Admissible in Questions of Pedigree. 
 
 The hearsay must be tVoin persons having such a couuec- 
 tion by blood or marriage witli tlie party to whom it relates, 
 that it is natural and likely, from their domestic habits and 
 connections, that they are speaking the truth, and are not 
 mistaken.' Declarations by a deceased person as to her own 
 legitimacy are evidence.'- So by a deceased husband as to 
 the legitimacy of his wife, and as to the pedigree of her 
 family, are evidence.^ So the declaration of a wife, as to 
 her husband's family ;* but not the declarations of her father, 
 nor the declarations of illegitimate relations.^ The decla- 
 rations of servants and intimate acquaintances are not ad- 
 missible.® The declarations of a deceased person as to the 
 fact of his own marriage are evidence.''' The declarations of 
 a deceased mother as to the non-access of her husband are not 
 evidence, on grounds of policy.^ But where the non-access 
 is admitted or established, her declarations may be proof of 
 paternity.^ Before any such declaration can be admitted in 
 evidence, the relationship of the declarant by blood or 
 marriage must be established by some proof independent of 
 the declaration itself. It is the duty of the judge to decide 
 whether this relationship is proved ; slight evidence will, 
 however, be sufficient.^" Old depositions in a suit, purporting 
 on the face of them to be made by relations, but not proved 
 aliunde to have been so made, are evidence,^^ the antiquity 
 of the depositions dispensing with such extrinsic proof. 
 
 Although it is necessary to give evidence dehors to connect 
 the persons making them with the family, yet where the 
 
 * Whitelocke v. Baker, 13 Ves. * Johnson v. Lawson, 2 Bing. 86 ; 
 514. S. C, 9 B. Moore, 183. 
 
 " Proi ur.-Gen. v. Williams, 31 L. ■> B. N. P. 112 ; R. v. Bramley, 6 
 
 J., P. M, & A. 157. T. R. 330. 
 
 " Vowles V. Young, 13 Ves. 148 ; « R. v. Luflfe, 8 East, 193 ; Good- 
 Doe d. Northey v. Harvey, Ry. & right v. Moss, Cowp. 594. 
 M. 297. ® 'i^^gg^ 'W- Edmonds, 25 L. J. 
 
 * Shrewsbury Peerage, 7 H. L. Ch. 125. 
 
 C. 1. '° Plant V. Taylor, 7 H. & N. 237 ; 
 
 * Bamford v. Barton, 2 M. & Rob. 31 L. J. Ex. 289 ; Smith v. Tebbitt, 
 28 ; Crispin v. Doglioni, 3Sw. & Tr. L. R., 1 P. & M. 354. 
 
 44 ; 32 L. J., P. M. & A. 109. " Freeman v. Phillipps, 4 M. & 
 
 S. 486.
 
 27b 
 
 KviDioxcE. [cii-vr. VI. 
 
 quesituni is whether A. he rehited to C, the dcelaralioiis of 
 B., who is pioviil to have been related to A., are evidenee 
 to prove C\ rehitetl \.o A., without evidenee de/tors to show 
 B. reiatrd to C' \Vh«'n ihr judge has deeided that the evi- 
 denee is sutlieirnt, he may reeeive the dt'ehiration, aUhongh 
 the faet of rehitionship is the very point in issue in the 
 eause,' and he is not bound to hear evidenee on the voir dire 
 to nbnt the evidenee of rehitionship.^ It is no ol)jeetion 
 that the person who made the deehiration stood ]ii pari casu 
 with the pi-rson tendering it in evidenee.* In a elaiin of 
 peerage a widow was admitted tt) i)r()ve the declarations of 
 her deeeased husl)and in support of her son's title, though 
 the husband, if living, would have had the right which the 
 declarations went to establish.* So declarations are admissi- 
 ble, though they tend to siiow^ the declarant's own title at 
 the time, provided there was no lis )iiota.^ The relative, 
 whose declarations arc ollered, must be proved to be dead, 
 before they can be admitted in evidence, unless, indeed, 
 from the ciicunistances, his death may be presumed.' 
 
 ' Monkton ?'. At t. -Gen., 2 Riiss. doubted whether a declaration hy 
 
 & Myl. inO. a person obviously in his own 
 
 * Jenkins v. Davies, 10 Q. B. 314. interest ought to be received. A 
 ' Ilitchins v. Eardley, L. R., 2 P. deposition of a deceased relative, 
 
 & M. 248. taken on a commission of incpiii-y as 
 
 * Monkton v. Att.-Gen., 2 Russ. to the next of kin of a lunatic, is ad- 
 & Myl. ir)9. missible to establish the title of the 
 
 * Cited by Abbott, C. J., in Doe lunatic's heir at law. Gee v. Ward, 
 d. Tilman v. Tarver, Ry. & M. 141. 7 E. & B. 509. 
 
 * Jenkins r. Davies, supra. But ' Butler v. Mountgarret, 7 H. L. 
 in Plant r. Taylor, mite, it was C. 633.
 
 CHAPTER VII. 
 
 HEARSAY. ANCIENT POSSESSIONS. 
 
 SECTION. 
 
 99. Heansay Admissible to prove, when. 
 
 100. Hearsay not Admissible to prove Private Title. 
 
 101. Perambulations. 
 
 102. Old Documents. 
 
 103. Manoi'ial Documents. 
 
 104. Maps. 
 
 105. Verdicts, etc. 
 
 106. Judgments, Decrees and Orders. 
 
 107. Grounds upon whicli these Rules are founded. 
 
 108. Position of Parties presumed to be as stated in Ancient 
 
 Documents. 
 
 109. Proof of Modern Exercise of Right. 
 
 Sec. 99. Hearsay Admissible to prove, -when. 
 
 Upon the same principle and for the same reasons that 
 hearsay evidence is admitted upon questions of pedigree, are 
 ancient documents admitted upon questions of ancient pos- 
 sessions and in support of them, and instruments which are 
 more than thirty years old are treated as ancient documents, 
 and when there is nothing suspicious about them, they are 
 presumed to be genuine without express proof, the witnesses 
 being presumed to be dead, and when they are found in the 
 proper custody, and are corroborated by possession under 
 them, they prove themselves.^ 
 
 ' Hedger v. Ward, 15 B. Mon. Stockbridge, 14 Mass. 257 ; Wins- 
 
 (Ky.) 106; Doe v. Roe, 31 Ga. 593 ; ton v. Guathmey, 8 B. Mon. (Ky.) 
 
 Carter v. Chaudron, 21 Ala. 72 ; 19 ; Crane v. Marshall, 16 Me. 27 ; 
 
 Doe V. Eslaver, 11 id. 1028 ; Beall Hall v. Gittings, 2 Har. & J. (Md.) 
 
 1}. Deering, 7 id. 124. It is an es- 380 ; Green v. Chelsea, 24 Pick, 
 
 tablished rule of evidence that a (Mass.) 71 ; Jackson v. Blanshaw, 
 
 deed more than thirty years old 3 Johns. (N. Y, ) 292 ; Troup v. 
 
 may be given in evidence, without Hurlbut, 10 Barb. (N. Y.) 354 ; 
 
 proof of its execution, when found Clark v. Wood, 34 N. H. 447 ; Zeig- 
 
 in the possession of the party claim- ler v. Houtz, 1 Watts & S. (Pa.) 538 ; 
 
 ing under it, and the possession of Duncan v. Beard, 2 Nott & M. (S. 
 
 the thing conveyed has followed the C.) 400. 
 conveyance. Stockbridge v. West
 
 278 EVIDENCE. [CHAr. VII. 
 
 Ancient documents, purporting to be a part of transac- 
 tions, and not a mere narrative of them, are, under certain 
 iiualilii-ations, which will be noticed, receival)le as evidence 
 that those transactions really occurred. And, in this sense, 
 the documents may be called hearsay evidence ol" ancient 
 possession. Such evidence, is very commonly adduced in 
 practice to corroborate modern use or i)ossession. Thus, 
 ui)on a (piestion as to the right of a lord of a manor to hold 
 certain land within the manor free from conmion, several 
 countt'rparts of leases found among the muniments of the 
 lord of the manor, from which it appeared that the land had 
 been demised by the lord free from common, were held to be 
 receivable in evidence.^ In an action of trespass,^ upon issue 
 joined on a plea of justification by virtue of a prescriptive 
 right of fishery appurtenant to a manor, old licenses on the 
 court rolls, and leases granted b}^ the lords of the manor, in 
 consideration of certain rents, to fish in the locus in quo, 
 were held to be receivable evidence. Heath, J., in this 
 case, observed that he could not distinguish the licenses 
 from old leases, which were always received in evidence in 
 favor of those claiming under the lessors. Rent rolls, where 
 payments have been made, are good evidence to prove fee- 
 
 ' Clarkson v. "Woodhouse, 5 T. R. dence to establish the line thus 
 
 413, n. ; S. C, 3 Doug. 189. See agreed upon. Hunt v. Johnson, 19 
 
 also Barnes v. Mawson, 1 M. & S. N. Y. 279. 
 
 78, supra ; Leathes v. Newit, 4 The authority of an ancient deed 
 
 Price, 355 ; 8 Price, 562 ; Fi.sher v. is not established by producing it 
 
 Graves, 3 Eag. & Y. 1180. To show from the jjroper custody and show- 
 
 the j)ra«rtical location of a boundary ing it to have existed for even sixty 
 
 line and acfjuiescence in it, between years, unless it be also shown that 
 
 the town of Rochester and the Har- possession has been taken or some 
 
 denburgh patent, a line some fifteen unequivocal act done under it, or that 
 
 miles long, ancient deeds and agree- its validity has been admitted by 
 
 ments between parties interested in parties having an advei-se interest, 
 
 the line, and statements in the town Wilson v. Betts, 4 Den. (N. Y.) 201. 
 
 records of Rochester, are competent Thirty yeai-s' uninterrupted jio.sses- 
 
 evidence, if matle a7ife Ztte/i^ftotoft. sion under a deed will entitle it to 
 
 Under the same limitations, a sur- be read in evidence without proving 
 
 vey of the line and an agreement its execution. Clark v. Owens, 18 
 
 to abide by it, a<ihered to for many N. Y. 434. 
 
 years, though not legally binding " Rogers v. Allen, 1 Camp. 309. 
 upon the parties, are competent evi-
 
 SEC. 99.] HEARSAY — ANCIENT POSSESSIONS. 279 
 
 farm rents, ^ or for other purposes.^ Old court rolls have 
 been admitted to prove a prescriptive right to wreck in the 
 lord of a manor. ^ 
 
 It has been questioned, however, whether ancient 
 leases are proper evidence against strangers, of the boundary 
 of the property conveyed. In Clarkson v. Woodhouse,* 
 Lord Mansfield, C. J., said that the case before him dif- 
 fered from the case of Lord Pomfret v. Smith, ^ where Lord 
 Pomfret offered a lease by himself or his predecessor, describ- 
 ing the premises in dispute as lying within the limits of Lord 
 Porafret's estate, the question being on the boundaries. But 
 on reference to the report of that case, it would seem that 
 no part of the lease, upon the admissibility of which the 
 principal question arose, applied to the place in dispute, but 
 only the words of an exception contained in it, and there- 
 fore it was contended that the lease, not containing a demise 
 of the lands in question, was not evidence of an act of owner- 
 ship, but only showed that the lands were excepted by a 
 description injurious to the rights of a stranger, against whom 
 that description was attempted to be used. 
 
 An old map of lands annexed to a deed seems to stand on 
 the same footing as a description contained in the deed itself, 
 and to be admissible in evidence where it is part of the act 
 by which proj)erty is to be conveyed." But where a map or 
 survey is not connected with any act of ownership, it ap- 
 pears to be inadmissible evidence to prove the parcels of an 
 
 ' Newburg-h v. Newburgh, 12 ^ Biddulph v. Ather, 2 "Wils. 23. 
 
 Vin. Ab. T, b. 43. * 5 T. R. 413, n. Parochial de- 
 
 ^ Woodnorth v. Cobham, 1 Eag. scriptions in leases are evidence 
 
 & Y. 802. In 12 Vin. Ab. A, b. 66, upon questions of public rig-ht, where 
 
 it is said, a rental is but weak evi- reputation is admissible. Plaxton v. 
 
 dence, unless payment is also Dare, 10 B. & C. 17. 
 
 proved, and not sufficient per se ; * 6 Bro. B. C. 440. 
 
 and by Comyns, B., 12 Vin. Ab. 90, « Gilb. on Ev. (3d ed.) 78, citing 
 
 pi. 14, rentals without money re- Yeates v. Connop, Hil. Ass. 1702. 
 
 ceived and paid upon them, are See also 1 Stra. 95, n.; 4 N. & M. 
 
 nothing. In Lancum x\ Lovell, 6 C. 302 ; 1 Lord Raym. 734 ; Hughes v. 
 
 & P. 441, an ancient counterpart of Lakin, 7 C. & P. 481 ; Wakeman v. 
 
 feoffment produced from corpora- West, 7 C. & P. 479 ; Jackson v. 
 
 tion muniments was rejected, be- Marsh, 6 Cow. 281 ; Hathaway v, 
 
 cause no i-ent had been received in Power, 6 Hill, 453. 
 respect of the property.
 
 280 
 
 EVIDENCE. 
 
 [c„. 
 
 VI'. VII. 
 
 estate, at Iciust so far as respects the principle of evidence 
 uikIit coiisitlcration.' 
 
 But the mere existente ol" a deed for more than thirty years, 
 ^vithout any proof of accompanying possession, is not enough 
 in any case to authorize it to be read in evidence as an ancient 
 tlccd, without proof of its execution.'^ 
 
 ' Anon., 1 Stra , Or> ; Bridgroan ii. 
 Jennings, 1 Lord lljiyni. 734 ; B. N. 
 P. :iS3 ; by Lord Kenyon, C. J., in 
 Pollard V. Scott, Peake, 18. See 
 V.^ik.Muan v. West, 7 C. & P. 479 ; 
 Doo J). Seaton, 4 N. & M. 81 ; Don- 
 nison v. ELsley, 2 Eag. & Young, 
 130G, n. ; 12 Yin. Ab. 90, pi. 12. 
 
 * Ridgt'ley v. Johnson, 11 Barb. 
 (N. V.) r)27 ; Homer v. Cilley, 14 N. 
 H. S.") ; Bank of Middlebury v. Rut- 
 lau<l. 33 Yt. 414 ; Dishager v. Mait- 
 land, 12 Leigh (Ya.), 524 ; Fairly^. 
 Faii-ly, 38 Miss. 280; Guinor v. 
 Cotton, 49 Tex. 101 ; Johnson v. 
 Simmons, 50 Tex. 521 ; Middleton v. 
 Mass, 2 N. & McCord (S. C), 55 ; 
 Blakeman v. Doughty, 40 N. J. L. 
 319. In Martin v. Rector, 24 Hun 
 (N.Y.), 27, upon the trial of an action 
 of ejectment, the plaintiff produced 
 two leases sixty years old. A wit- 
 ness testified that the subscribing 
 witnesses were dead, and that from 
 an inspection of many similar leases 
 he was familiar with their signa- 
 tures, and believed them genuine ; 
 that the lessor wa.s dead ; that he 
 had seen him write, and believed 
 ?iis signature genuine. It was 
 held that in the absence of proof 
 of possession under the leases, or 
 aji to their custody, they were not 
 a<lmi.ssible. In Missouri, by statute, 
 proof of the execution of a deed, 
 where the record is thirty years old, 
 is di.spen.sed with, but it is held that 
 this does not di.spense with the ne- 
 ce.'^sity of proving the loss of the 
 deed before a copy of the deed can 
 be used. CHsper v. Hannavan, 72 
 Mo. 548. The principle which allows 
 
 ancient deeds, under certain cir- 
 cumstances, to prove themselves, 
 has no application to cases in which 
 the deed does not appear upon its 
 face to have been regularly made, 
 and in form sufficient for the object 
 for which it is set up. Reaume v. 
 Chambers, 22 Mo. 36. Thus, where 
 the deed of a married woman is not 
 executed in conformity with the law 
 in force at the date of its execution, 
 so as to convey her estate, it will 
 not become effective as an ancient 
 deed, from lapse of time. Boyle v. 
 Chambers, 32 Mo. 46. Ancient rec- 
 ords, when accompanied by an ad- 
 mission that they come from the 
 proper depository, are admissible in 
 evidence without further proof of 
 their authenticity. A copy of an 
 ancient proprietary charter, duly 
 recorded and certilietl in the book 
 of i-ecords of the proprietary, is ad- 
 missible in evidence. Little v. 
 Downing, 37 N. H. 355. If an in- 
 sti'ument offered in evidence as an 
 ancient deed be proved to be thirty 
 years old, it is not necessary to .show 
 that it came from the pi-oper cus- 
 tody, and that possession has been 
 had under it ; and if such an instru- 
 ment be admitted as an ancient deed, 
 it is admitted as being formally 
 executed by signing, sealing and 
 delivering. Brown v. Wood, 6 Rich. 
 (S. C.) Eq. 155. Where a party, 
 without objection, produces upon 
 trial a portion of an ancient plan, 
 the other party is entitle(i to put in 
 the whole of it, as well as of the 
 record and the deeds of those under 
 whom he claimed, made after the
 
 SEC. 99. 1 HEARSAY ANCIENT POSSESSIONS. 281 
 
 But proof of possession under the deed, even for a short 
 time, will be sufficient. Thus, where possession for five years 
 was proved, it was held that the deed, being more than 
 thirty j^ears old, was admissible in evidence as an ancient 
 deed.^ So, where the grantee entered upon the land believed 
 to have ))een conveyed, immediately after the date of a deed 
 more than thirty years old, though he only then occupied it 
 for a short time, and that the grantor, twenty years after 
 the date, acknowledged that he executed it at its date, it was 
 held sufficient evidence of its antiquity.- But the fact that 
 there has been no possession under the instrument will not 
 defeat the admissibility of the instrument, if its authenticity 
 is otherwise established, or such facts are shown as raise a 
 fair presumption of its genuineness.-^ Thus a lease more 
 than thirty years old was allowed to be read in evidence as 
 an ancient deed, without proof of its execution, although 
 there was no direct proof of possession accompanying it, it 
 being found among the title papers of the estate affected by 
 it, and the facts and circumstances in reference to the prop- 
 erty specified in it l)eingsuch as to afibrd a reasonable ground 
 to presume its genuineness.^ In another case,^ a lease which 
 was offered in evidence as an ancient deed, corresponded 
 with one admitted l)y the pleadings to have been executed 
 thirty years before, except that it was executed by A. only, 
 while the one admitted was by A. and B. It was proved 
 that the defendant had for four years paid rent at the time 
 appointed in the lease ; that the lease had twice been show^n 
 to him l)y the landlord's agent, when he had inquired as to 
 its terms. It was held that the lease was admissil^le in evi- 
 dence without further proof of its authenticity. So the au- 
 thenticity of an ancient iustriuncnt may be established by 
 proving the handwriting of one of the attesting witnesses,* 
 or by showing that the instrument has been preserved under 
 
 partition, and referring to it. Floyd Ala. 253 ; Carroll v. Norwood, 1 H. 
 
 V. Tewksbury, 129 Mass. 362. & J. (Md.) 167. 
 
 ' Wag-er v. Acton, 1 Rice (S. C), * Hewlett v. Cock, 7 Wend. (N. 
 
 100 ; Namlin v. Burwell, 75 Va. 551. Y.) 371. 
 
 » Nixon V. Porter, 34 Miss. 697. ' Clark v. Owens, 18 N. Y. 434. 
 
 3 Hinde v. Vattier, 1 McLean (U. ^ Carroll v. Norwood, 1 H. & J. 
 
 S.), 110; White v. Hutchings, 40 (Md.) 167.
 
 282 EVIDENCE. [CIIAP. VII. 
 
 such circumstances as rciuler it apparently authentic' Thus 
 ;ui ancient book, kept among the records of a town, purport- 
 in" to he the " selectmen's book of accounts with the treas- 
 ury of the town," is admissible in evidence of the facts 
 therein stated ; and where the selectmen were at the same 
 time assessors, an entry in such book of li credit, by an order 
 in favor of the collector for a discount of a particular indi- 
 vidual's taxes, was held to be evidence of an al)atement of 
 the tax of such individual. 2 So, in a New Hampshire case,^ 
 in order to show that a certain town meeting was held thirty- 
 eight years ago, a copy of an original warrant for a town 
 meeting in the year 1805 was produced, on which there Wiis 
 a seal. The town clerk, who found the original among the 
 papers in his office, could not state that there was a seal on 
 it when he found it, but he had recently lent it to the select- 
 men, and when they returned it to him there was a seal on 
 it. The record did not show that it was sealed. Two of 
 the signatures to it, of persons styling themselves selectmen, 
 were proved to be genuine. The warrant Avas })osted up, 
 I he meeting Avas held, and the record showed that an oflficer 
 was elected and sworn. The clerk for the year 1805 was 
 dead. It wiis held that from these facts, after the lapse of 
 thirty-eight years, the jury might presume that the meeting 
 was duly held. 
 
 Old maps, stating l)oundaries made by persons having 
 knowledge of the facts, are admissible as to the true location 
 of the jurisdictional limits of a municii)al corporation ; "* and 
 ancient deeds and plans are admissible to prove the location 
 of a creek or arm of the sea, filled up since the deeds were 
 executed and the plans were made.^ On questions as to the 
 territorial limits of a municipal jurisdiction, either public 
 reputation or the declarations of deceased persons, made ante 
 litem motcim, are admissible.^ 
 
 ' Hinde v. Vattier, ante ; King v. * McCall v. United States, 1 Dak. 
 
 Little, 1 Cu-sh. (Mass.) 430. 320. 
 
 " Boston V. Weymouth, 4 Cush. ' Druiy ^. Midland R. R. Co., 127 
 
 (Mass.) 538. Mass. 571. 
 
 ' Petei-boro v. Lancaster, 14 N. ' McCall v. United States, 1 Dak. 
 
 H. 382. 320. 
 
 I
 
 SEC. 99.] HEARSAY — ANCIENT POSSESSIONS. 283 
 
 The rule of evidence for ancient documents is, that thei/ 
 must have the appearance of due antiquity and genuineness, 
 and must he procured from the proper custody and he corrob- 
 orated hy such acts of the parties claiming under them, 
 as correspond with their tenor. ^ The genuinness of these 
 documents may generally he shown prima facie hy proof that 
 they came from the proper custody ; and as to what is the 
 proper custody, must depend upon the circumstances of each 
 case. " Documents,'' said Tindal, C. J.,^ 'found in a place in 
 which, and under the care of persons with whom, such papers 
 might naturally and reasonably he expected to he found, are 
 precisely in the custody tohich gives authenticity to documents 
 found within it, for it is not necessary that they should be 
 found in the best and most proper place of deposit. If 
 documents continue in such custody, there would never be 
 any question as to their authenticity ; but it is ivhen 
 documents are found in other than their proper place of 
 deposit, that the investigation commences whether it was 
 reasonable and natural, under the circumstances in the 
 particular case, to expect that they should have been in the 
 place where they are actually found ; fi)r it is obvious that, 
 while there can be only one place of deposit strictly and 
 absolutely proper, there may be many and various that are 
 reasonable and probable, though differing in degree, some 
 more so, some less ; and in those cases the proposition to be 
 determined is, whether the actual custody is so reasonably and 
 probably to he accounted for that it impresses the mind with 
 the conviction that the instrument found in such custody must 
 he genuine. That such is the character and description of 
 the custody which is held sufficiently genuine to render a 
 document admissible, appears from all the cases. "^ Thus, in 
 
 ' Lawu. Mumma, 43 Penn. St. 267. McC. (S. C.) 400 ; Hewlett v. Cook, 
 
 2 In Bishop of Meath v. The 7 Wend. (N. Y.) 371; Jackson v. 
 Marquis of "Winchester, 3 Bing-. Lugaiere, 5 Cow. (N. Y.) 221 » 
 N. C. 200 ; Williams v. Conger, 49 Jackson v. Lara way, 3 John. Cas. 
 Tex. .582. (N. Y.) 283. In Brown v. Wood, 6 
 
 3 Clark t). Courtney, 5 Pet. (U.S.) Rich. (S. C.) Eq. 155, it was held 
 319 ; Barr y. Gratz, 4 Wheat. (U. S.) that if a deed offered in evidence is 
 213; Winntj. Patterson, 9 Pet. (U. S.) proved to be over thirty years old, 
 663 ; Duncan v. Beard, 2 Nott & it is not necessary to prove that it
 
 284 EVIDENCE. [CUAI'. MI. 
 
 an early Xew York case,' a hook, purporting to contain the 
 procoediugs of the conunissiontM-.s ot" fori'citnre.s, hut not 
 proved to Inive ever l)eea in their po.sses«ion, though found 
 in the elerk's otiiec in 180G, and having hiin there seventeen 
 vcars, is not admi.-^s;il)le to .show tisale hy the eonnnissioners ; 
 and if >ho\vn to be genuine, it would not be evidenee of title. 
 
 In .1 Ma>sa(hu.setts ea.se,- in a writ of entry, ui)on the 
 (piestion whether the grantees of a cove, under whom the 
 tenants derived their title, had ever claimed or taken pos- 
 session of certain flats, the teuauts were periuitted to give in 
 evidence an ancient deed, under which possession had been 
 taken and continued to the present time, from such grantees 
 to a third person, of a part of the flats ; and an ancient 
 record l>ook, which, although not regularly authenticated, 
 liad been preserved among the records of the town, wjis 
 held (there being nothing to impeach its verity) competent 
 and sufficient evidence to establish the ancient titles under 
 the allotments from the town. In the ca.se of deeds, grants, 
 etc., their custody would naturally be with the grantee or 
 those claiming under him, and when so found, it is admis- 
 sible.' 
 
 The question in all such cases is not necessarily whether it 
 was found in the place where it would be most likely to have 
 been found, but ivJiether its actual j)^ ace of custody teas one 
 where it might reasonahhj he expected to he found ;* and the 
 
 came from tho proper custody. But from the proper depository of such 
 
 this is not the general rule. Jackson records, not attested 1)y any clerk, 
 
 V. Miller, G Cow. (N. Y.) I'A. and not accomi)anied by any notice 
 
 ' Jack-son ?\ Miller, mile. of the town meeting-, were held 
 
 * Rust V. Boston Mill Corporation, competent evidence to be submitted 
 
 6 Pick. (Ma.'^s.) 158. to a jury. Adams v. Stanyan, 24 N. 
 
 ' BuUen v. Michel, 2 Pi-ice, 413 , H. 40.5. 
 
 Bishop of Meath v. Marquis of * Tindal, C. J., in Bishop of 
 
 Winchester, 3 Bing. N. C. 201. Meath ?). Marquis of Winchester, 3 
 
 "Where lands of individuals are Bing. N. C. 201 ; Jones v. Wallei-, 2 
 
 bouniled on town lines, ancient maps Gwill. 340; Doe v. Pearce, 2 M. & 
 
 of towns ma^le by authority of the Rob. 240 ; Rees v. Waltera, 3 M. & 
 
 .State, and perambulations of town W. 527 ; Doe v. Samples, 8 Ad. & 
 
 lines, are competent evidence in El. 151 ; Trimlestown v. Kenns, 9 
 
 puitsl)etween such individuals; and CI. & F. 774; Bertis v. Beaumont, 
 
 the records of a town, purporting 2 Price, 307. 
 to be made in 1728, and coming
 
 SEC. 99. j HEARSAY — ANCIENT POSSESSIONS. 285 
 
 circumstance that an old lease is found in the possession of 
 the lessor/ or a trust deed is found in the possession of the 
 grantor,^ or that an old will is found in the possession of one 
 of the beneficiaries, when it should have been deposited in 
 the Ecclesiastical Court,'' has been held not sufficient to strip 
 it of its value as evidence, as an ancient instrument. Mr. 
 Phillips, in his work on Evidence, ^ insists that in order to 
 render ancient documents admissible, proof, if possible, must 
 be given of some act done with reference to them. But this 
 does not seem to be the rule, "for," says Mr. Taylor,^ 
 " although it is perfectly true that the mere production of 
 an ancient document, unless supported by some corrobora- 
 tive evidence of acting under it, or of modern possession, 
 would be entitled to little, if any, weight, still there appears 
 to be no strict rule of law which would authorize the judge 
 in withdrawing the deed altogether from the consideration 
 of the jury : — in other words, the absence of proof of pos- 
 session affects merely the iveight, and not the admissibility^ of 
 the instrument.^'' Thus, in Rogers v. Allen, ^ where, in order 
 to prove a prescriptive right of fishery as appurtenant to a 
 manor, ancient licenses to fish in the locus in quo, which ap- 
 peared on the court rolls, and were granted by former lords 
 in consideration of certain rents, were tendered in evidence, 
 Mr. Justice Heath, after argument, held that they were 
 admissible without any proof of the rents having been paid ; 
 but he added that, " to give them any weight, it must be 
 shown that in latter times payments had been made under 
 licenses of the same kind, or that the lords of the manor 
 had exercised other acts of ownership over the fishery, which 
 had been acquiesced in." So, in the case of the Duke of 
 Bedford v. Lopes,'^ which was an action brought to try the 
 title to the bed of a river, after proof of a grant from Henry 
 VIII, two counterparts of leases were produced from the 
 Duke's muniment room, comprehending the soil in question. 
 No payment by a tenant was proved, nor any modern act 
 
 > Rees -». Walters, 3 M. & W. 527. " Taylor on Ev. 435. 
 
 " Doe V. Samples, 8 Ad. &E1. 151. M Camp. 309, 311. 
 
 ' Doe v. Pearce, 2 M. & Rob. 240, ' Cited in argTiment, 3 Q. B. 623. 
 
 * Phillips on Ev. 276.
 
 L'xi EVIDKNCE. [ciIAl*. VII. 
 
 of ownership; but Lord Denman admitted the instniincnts 
 as coming iVom the right cu.stody, ohyerving tliat there was 
 no circumstanee in the ca.se which threw suspieion upon them, 
 and that " the ah.sence of other kintls of proof was mere 
 matter of observation." ' Again, in an action of ejectment 
 Ijronght hy Lord Egremont, it became necessary to siiow 
 tiiat tho hind in question had been i)art of the estate of the 
 K'ssor's ancestor, Sir William Wyndhain ; and in order to 
 establish this fact, there was produced from the nnmiment 
 room of the pi'operty which had descended from Sir William, 
 ■what a[>peared to be a counterpart of a lease of this land, 
 made l)y him ; but it purported to be executed only hy the 
 lessee, ;i!h1 there was no i)roof given of actual possession 
 under it. 'Lho Court of Queen's Bench, after consulting 
 with some of the other judges, held that this deed was ad- 
 missible in evidence. 
 
 Under the (pialitications stated, ancient documents, j^urj^ort- 
 ing to be a j)a)t of the transactions to wldch tJiey relate, and 
 not a mere narrative of them, are receivable as evidence that 
 thorn transactions actually occurred. And though they are 
 spoken of Jis hearsay evidence of ancient possession, and as 
 such are said to l)e admitted in exception to the general 
 rule, }et they seem rather to be parts of the res gestm, and 
 therefore admissible as original evidence, on the principle 
 already discussed. An ancient deed, by which is meant one 
 more than thirty years old, having nothing suspicious about 
 it, is presumed to be genuine without express proof, the wit- 
 nesses being presumed dead ; and, if it be found in the 
 proper custody, and be corroborated by evidence of ancient 
 or modern corrcs[)onding enjoyment, or hy other equivalent 
 or exiilanatory proof, it will be presumed to have constituted 
 
 ' Doe V. Pullman, 3 Q. B. 622, 9 Ves. 5. And such also is the rule 
 
 626. See further, on this subject, in this country. Jackson v. Laro- 
 
 Clarkson v. Woodhouse, 5 T. R. 413, way, 3 Johns. Cas, (N. Y.) 283, 287 ; 
 
 n., -per Lord MA^fSFiELD ; Brett v. Jackson v. Luquere, 5 Cow. (N. Y.) 
 
 Bealns, M. & M. 418, per Lord 221, 225 ; Jackson v. Lamb, 7 id. 
 
 Tb.vtkrdkn ; Doe v. Passinj^ham, 2 431 ; Barr v. Gratz, 4 Wheat. (U. 
 
 C. &P. 444,perBt;RRouaH, J.; Ran- S.) 213, 221; Hewlett v. Cock, 7 
 
 clifT.- c. Parkyns, 6 Dow, 202, Y>er Wend. (N. Y.) 371, 373, 374. 
 Lord Eldo.n ; McKenire v. Fraaer,
 
 SEC. lOO.j HEARSAY — ANCIENT POSSESSIONS. 287 
 
 part of the actual transfer of property therein mentioued, 
 because this is the usual course of such transactions. The 
 residue of the transaction may be as unerringly inferred from 
 the existence of genuine ancient documents, as the remainder 
 of a statue may be made out from an existing torso, or a 
 perfect skeleton from the fossil remains of a part.^ 
 
 Sec. 100. Hearsay not Admissible as to Private Title. 
 
 The objection to receiving hearsay testimon}^ upon matters 
 of private right, applies with great force to those cases which 
 are unsupported by any analogy to matters of public or 
 general interest ; os where the fact sought to be proved is 
 not matter of prescription or of boundary. Thus, in an 
 ejectment, 2 where the lessor of the plaintiff claimed the land 
 as tenant in tail under a will, by which the testator gave his 
 son an estate for life, and the defendant claimed as devisee 
 of the son, the question was, whether the land in dispute 
 was part of the entailed estate, or had been purchased by 
 the son. Evidence of reputation that the land had belonged 
 to Sir J. S., and had been purchased of him by the father, 
 the first testator, was held to be clearly inadmissible. So 
 evidence of reputation has been rejected upon a question as 
 to the usage in electing a schoolmaster, as it related to a 
 private right,^ and upon a question whether the tenants of a 
 particular copyhold estate had the right of cutting and 
 selling wood,^ or whether the lord of a manor had a 
 prescriptive right to all wreck within the boundaries of the 
 manor.^ In The King v. Antrobus,^ on the trial of an 
 
 * Taylor on Ev., § 463. proved by testimony, by persons 
 ^ Didsbury v. Thomas, 14 East, who are acquainted with the locaHty 
 
 323. or business to which it relates. 
 
 ^ Withnel v. Gartham, 1 Esp. 324. Putnam v. Tillotson, 13 Met. 517 ; 
 
 * Blackett v. Lowes, 2 M. & S. Cope v. Dodd, 13 Penn. St. 33. 
 
 494, 500. A present custom of business mani- 
 
 * Talbot V. Lewis, 1 C, M. & R. festly must be proved by persons 
 
 495. engaged in or acquainted with the 
 ' 2 Ad. & El. 794. Hearsay is business. Isolated instances will not 
 
 admissible in the case of a custom, establish it, Cope v. Dodd, supra ; 
 
 Per Marshall, C. J., in Mima there must be a general concun-ence 
 
 Queen TJ. Hepburn, 7 Cranch, 296. of action. Knowles -w. Dow, 2 Foster 
 
 A custom or usage is a fact to be (N. H.), 387. The mode of proving
 
 288 EVIDENCE. [CIIAP. vn. 
 
 iulonnation against :i slicrilV of a county, for not executing 
 a convict sciitcnci'd to death, it was held that a witness 
 could not l)c asked whether he had heard that it was the 
 custom for the sherilf to be exempt from performing, or for 
 another i)erson to perform the duty in that i)articnlar county, 
 althouirh it had been proved that such other officer had in 
 fact always performed it within living memory. It was said 
 that this was not a matter of public interest, the [)ul)lic not 
 being interested m the question which officer was to perform 
 the duty. 
 
 It has been said that in the case of the Bishop of Meath 
 V. Lord Beltield,' in a quare impedit after the plaintiff 
 had given in evidence an entry in the register of the diocese 
 of the institution of one K. (in which entry there was a blank 
 where the patron's name was usually inserted), parol evidence 
 of the general reputation of the country was offered, that 
 K. wiLs in by the presentation of one under whom the 
 defendant claimed ; and, on a bill of exceptions, the evidence 
 wiis adjudged to be admissible, on the ground that a presen- 
 tation may be by parol, and that what commences by parol 
 may be transmitted to posterity by parol ; and that this 
 creates a general reputation. But Lord Kenyon, C. J., 
 adverting to this case,- said he admitted that a presentation 
 might 1)6 by parol, and might be proved by parol — that is, 
 by a witness who was present and heard it; but he denied 
 that in such a case common reputation could be given in evi- 
 dence. " If it can," he added, " why might not such evi- 
 dence decide titles to estates, at least before the Statute of 
 Frauds, when no written instrument was required to make a 
 good feofl'ment of the greatest landed i^roperty in the 
 kingdom ? " 
 
 There appears to be a conflict of authority upon the ques- 
 tion whether evidence of reputation is admissible as to the 
 liahililij of the occupiers of certain land to repair a road, 
 
 it3 existence, and the number of ' B. N. P. 295, cited by Buller, 
 
 ■witnesses necessaiy to be called, J., in R. «. Eriswell, 3 T. R. 719 ; 
 
 must depend upon thp circumstances S. C, reported 1 "Wils. 21.5. 
 
 of the case. Vail &. Adams v. Rice, * In R. \\ Eriswell, 3 T. R. 723. 
 
 5 N. Y. 1.51, and upon the object ^ee also Tellard v. Shebbeare, 2 
 
 for which it is sought to be proved. Wils. 366.
 
 SEC. 100.] HEARSAY — ANCIENT POSSESSIONS. 289 
 
 ratione tenurcE. In The King v. Cotton,' it seems to have 
 been assumed that such evidence was admissible, althouo-h. 
 the particular evidence tendered was rejected upon another 
 ground. But in the later case of The King v. Wavertree,- 
 similar evidence was rejected. It was tendered on behalf 
 of the defendants, but, as the verdict was returned in their 
 favor, there was no opportunity of carrying the question any 
 further. While such evidence would establish a private lia- 
 bility, it would, at the same time, disprove the liabihty of 
 the public. It is not, therefore, a question of private lia- 
 bility ^erse, in which the public are not interested. And, 
 as reputation is admissible equally to disprove a j9?/6Z/c right 
 as to establish one,'^ so it would seem such evidence should 
 be admissible to disprove a public liability in the same man- 
 ner as to establish it. And there seems to be no good rea- 
 son why reputation should not be as good evidence to estab- 
 lish a liability to repair a road, ratione tenurce, as it is in the 
 case of a bridge or a sea-wall.^ 
 
 Hearsay is, in general, inadmissible to prove particular 
 facts, unless such facts have become matter of general reputa- 
 tion. Thus, on a question of parochial modus, hearsay evidence 
 that a particular person, since deceased, paid a certain sum 
 in lieu of tithes, would not be admissible ; but if the witness- 
 says he has heard from old inhabitants that so much per acre 
 was always paid in lieu of tithes, or that it had always been 
 the custom to make such payments, that will be good evi- 
 dence, for it does not consist of hearsay of a particular fact, 
 but comes within the general rule of evidence of reputation.* 
 MacDonald, C. B., said in one case :^ "The essence of 
 reputation is, that if 3^ou prove a fact — as, for instance,, 
 payment of a sum of money — it must be accompanied witb 
 this, that it was so paid in consequence of a reputation. If 
 evidence is confined to the fact of payment, it is inadmissi- 
 
 • 3 Camp. 444. 112, 169 ; Moseley v. Davies, 11 
 "^ 2 Mo. & R. 353. Price, 162 ; Garnons v. Bernard, 1 
 ' See Drinkwater v. Pater, 7 C. & Anstr. 298 ; Deacle v. Hancock, 13 
 
 P. 181. Price, 226 ; Wells v. Jesus College.., 
 
 * See R. V. Sutton, 8 Ad. & El. Oxford, 7 C. & P. 284. 
 
 516 ; R. V. Leigh, 10 Ad. & El. 398. « In Harwood v. Sims, ante. 
 ^ Harwood v. Sims, 1 Wightw. 
 
 19
 
 290 EVIDENCE. [CIIAP. VII. 
 
 hlo, unles.s the tradition that came with it was a reputation 
 that it had always been the case." 
 
 But thougli hearsay of a custom to make certain payments 
 is evidence, hearsay tliat certain lands were formerly given 
 to the vicar in lien of tithes is not admissible,' this being 
 evidence of a particular fact, and being condued to a par- 
 ticular occasion. Again, though reputation is good evidence 
 of the boundaries of a town, it is not admissible to prove 
 that houses once stood where there are now noiic.^ 
 
 U[)on a question whether a part of Lincoln's Iim was part 
 •of the parish of St. Andrew, Holborn, an ancient book of an- 
 tiquities, relating to the parish and collected by a church- 
 warden, was produced, and several entries were tendered in 
 evidence concerning the repairs of pews and the glazing of 
 windows. Abbott, C. J., refused to receive. this as evidence 
 of reputation, as it related only to particular facts.^ But 
 entries in an old parish book, in which the names of the sur- 
 veyors of the highways were stated, have been admitted, 
 upon the principle that it would be difficult to give other 
 proof of persons being surveyors at the time in question.'* 
 
 Where the question is, whether a road is puljlic or private, 
 the declaration of a deceased person as to a certain fact hav- 
 ing been done (as the planting of a tree) for the purpose of 
 showing the boundary of the road, has been held not admis- 
 sible as evidence of reputation, or as a statement accompa- 
 nying an act.* It might have been shown that a tree was 
 planted on the spot, and that persons were accustomed to 
 keep within the line pointed out by it ; but a declaration 
 that it wjis planted with a particular motive and object is 
 not evidence,^ and declarations by deceased persons that they 
 
 ' C'hatfield v. Fryer, 1 Price, 253. ^ R. v. Bliss, 7 Ad. & El. 550. In 
 
 And see Lealhes v. Newel, 4 Price, this country the declarations of a 
 
 355 ; 8 Price, 562 ; Crease v. Bar- deceased person have been fre- 
 
 rett, 1 C, M. & R. 919. quently admitted, on questions of 
 
 ' Ireland v. Powell, Peake Ev. boundary involving private rights, 
 
 14, cited in Chatfield v. Fryer, 1 where the witness appeared to have 
 
 Price, 256 ; and in R. v. Bliss, 7 Ad. had the means of knowledge, and 
 
 & El. 555. no interest in making them. Smith 
 
 ' Cooke V. Banks, 2 C. & P. 478. v. Powers, 15 N. H. 546. See next 
 
 * R. V. Pembridge (Inhab.), Car. section. 
 
 & M. 157. » R. V. Bliss, 7 Ad. & EI. 550.
 
 SEC. 102.J HEARSAY ANCIENT POSSESSIONS. 291 
 
 had seen repairs done upon the road will not be admissible 
 upon such a question, i 
 
 Sec. 101. Perambulations. 
 
 Perambulations, although they consist of particular acts 
 done (as the making of an ambit, digging turves, putting 
 down posts, etc.), and though they give rise to nmch hear- 
 say evidence, are, properly speaking, only the exercise of a 
 right, and it is held to be usual and entirely consistent with 
 principle to admit what old persons, since deceased, who ac- 
 companied the perambulations, were heard to say on such 
 occasions respecting the boundaries. But there does not 
 appear to be any authority for admitting hearsay of particu- 
 lar acts done, as conducive to the proof of boundary, even 
 though it is delivered on the occasion of a perambulation. 
 In Weeks v. Sparkc,2 Loud Ellenborough, C. J., ob- 
 served, upon the subject of perambulations, that they are in 
 the nature of hearsay evidence, not of particular acts done 
 (as that such a turf was dug, or such a i30st put down in a 
 particular spot, — for that would amount to evidence of 
 ownership), but evidence of the ambit or survey of a par- 
 ticular place or parish, and of what the persons accompany- 
 ing the survey have Ijcen heard to say and seen to do on 
 such occasions. Le Blanc, J., observed, in the same case, 
 that the evidence of perambulations might be considered in 
 a certain degree as evidence of the exercise of a right, yet 
 that it had been usual to go further, and admit the evidence 
 of what old persons, since deceased, had been heard to say 
 on those occasions. Entries in parish books, recording the 
 fact that perambulations had taken a particular line, have 
 been held inadmissible.^ 
 
 Sec. 102. Old Documents. 
 
 Reputation respecting public rights may be shown by old 
 deeds or other old documents, even though of a private 
 nature, as well as by the oral declarations of deceased 
 
 * By Patteson, J., id. 552. ^ Taylor v. Devey, 7 Ad. & El. 
 
 * 1 M. & S. 687, 689. 409. See next section.
 
 292 EVIDENCE. [CHAr. vu. 
 
 iiuliviiluals.i Thus, where the question w;is, whether eertuin 
 land Nvas iuthe parish of A., or in that of B., where the land 
 was tithe-free, aneient leases granted by the ancestors of the 
 l.laintiirs landlord, describing the landas being in the parish 
 of B., were held admissible as evidence of reputation, not- 
 withstandin<»' that sucli ancestor had a direct interest in 
 describing the land to be situated in that parish.- In the 
 case of Cani!)ridge Tolls,'' a composition deed between the 
 corporation of Camljridge and the university, regulating the 
 amount of payment of tolls, was received as evidence of 
 reputation of the existence of the tolls. It appeared that the 
 deed had not been exactly followed in practice ; but it was 
 iield that this objection did not apply to its admissibility. 
 So depositions in ancient suits have frequently been produced 
 to [)rove reputation.^ 
 
 Sec. 103. Manoriad Documents. 
 
 A customary of a manor delivered down with the court 
 rolls from steward to steward, and jjurporting to be ex 
 assen.su ommum lenentiain, although not signed I)y any 
 l)crson, hiis been held to be good evidence to prove the course 
 of descent within a manor.^ So the presentment of a custom 
 of a manor by the homage, entered on the rolls of the manor, 
 is receivabh;.^ So ancient answers of conventionary tenants 
 of a manor, stating the rights of the lord of the manor, and 
 made to interrogatories put to them by connnissioners, but 
 which interrogatories were lost, have been received in 
 evidence."'' A i)resentment in a manor court, setting forth 
 
 ' This sul)je(;t will receive furthor * Freeman v. Phillipps, 4 M. & S. 
 
 illustration in that part of the work 493. And see the cases of the Settle 
 
 which treats of documentary evi- and Leeds Mills, cited by Lord 
 
 dence. Ellenborough, C. J., id. 
 
 * Plaxton V. Dare, 10 B. & C. 17. * Denn v. Spray, 1 T. R. 466. 
 
 See also Arundell xi. Falmouth, 2 * Roe v. Parker, 5 T. R. 26. See 
 
 M. & S. 443 ; Freeman v. Phillipps, Lord Kbnyon's remarks as to the 
 
 4 M. & S. 486 ; Coombs v. Coethier, credit due to such presentments. 
 
 1 M. & M. 398 ; Bai-nes v. Mawson, ^ee also Arundell V. Falmouth, 2 
 
 IM. &S. 78; Angleseaii.Hatherton, M. & S. 441. 
 
 10 M. & W. 218 ; Bullen v. Michel, ' Crease -«. Barrett, 1 C, M. & R. 
 
 4 Dow. 297; Clarkson v. Woodhouse, 923. See Evans v. Taylor, 7 Ad. & 
 
 5 T. R. 412, n. ; S. C, 3 Douff. 189. El. 617. 
 ' Brett V. Beales, 1 M. & M. 416. 
 
 See also Curzon v. Lomax, 5 Esp. 60. 
 
 1
 
 SEC. 104.] HEARSAY — ANCIENT POSSESSIONS. 293 
 
 the boundaries of a manor, has been adjudged to l)e aamis- 
 sible evidence of boundary, although a part of the document, 
 but not comiected with the sul)ject of the particular boundary, 
 appeared to have been cut off.i 
 
 In an action by a copyholder against a freeholder of the 
 manor, for the disturbance of the plaintiff's right of common,^ 
 by reason of the defendant surcharging the common (the 
 plaintiff setting up a restricted right), parchment writings 
 pioduced on the part of the defendant from among the 
 muniments of the manor, purporting to be signed by many 
 persons, copyholders, and stating an unlimited right of 
 common in the commoners (which had l)een found incon- 
 venient, and they had therefore agreed to stock it in a 
 restricted manner), were held admissible as evidence of 
 reputation respecting the general right at that period, and 
 in disproof that the restricted right originated in prescription ; 
 there lieiiig no evidence that the plaintiff's tenement had 
 belonged to any of those who had signed the writings, so as 
 to render them admissible against him on that o-round. 
 
 Sec, 104. Maps. 
 
 Ma})s, stating the boundaries of manors or parishes, are 
 held even in England to be admissible in evidence to prove 
 such boundaries, provided it aj)j)ears that they had been made 
 by persons having adequate knowledge. In the English 
 cases, however, where maps have been admitted, their 
 admissibility has depended on the ground of their being 
 public documents, or of their being in the nature of admissions. 
 Where they relate merely to the boundaries of private 
 property, there is no ground for receiving them, however 
 ancient.^ In a case where a parish had been indicted for the 
 non-repair of a highway, in order to show that the highway 
 was not within the parish, a map was produced which had 
 been made, about thirty years before, by a surveyor from 
 
 * Evans n. Rees, 10 Ad. & El. 151. ' With respect to private maps. 
 See also R. w Leigh, 10 Ad. & El. see Doe d. Hughes v. Lakin, 7 C. & 
 398, 400, 404, 411. P. 481; Sir J. Bridgman v. Jennings, 
 
 ^ Chapman xi. Cowlan, 13 East, 10. 1 Ld. Raym. 734; Donnison y. Elsley, 
 
 2 Eagle & Y. 1396, n.
 
 204 EVIDENCE. [chap. VII. 
 
 infonnatioii derived iVoiu an old parisliioncr, who had 
 pointed out th(^ boundaries to him; and Erskink, J., held 
 that if proof were given of llio inrorniant's death, the map 
 would he admis-sil)!*! as evidence of ie[)ntation, although it 
 wius proilueed from the chest of the parish that was indicted. 
 
 In uu earlier case/ upon a question of highway, Lord 
 Kexyox, C. J-, rejected the evidence of a coi)[)erplate map 
 purporting to have been made by the direction of former 
 ehurcli-wardens. But it is difficult to see how there could 
 be any valid objection to the reception of such evidence 
 
 In tliis country old ma[)s made by public authority, shown 
 to be correct, or the authenticity of which is admitted or 
 acted upon, are admissible,^ especially when made by an 
 official surveyor and vei-ified by tin; oath of the surveyor f 
 and this is the rule when they relate to private rights. Thus, 
 in an action to recover for building done under a special 
 contract, requiring the plaintiff to conform to specific plans, 
 other plans, as well as maps and drawings, exhibiting the 
 various parts of the building and premises on which the 
 work was to be done, arc admissible in evidence as intro- 
 ductoiy to testimony ; and a (piestiou to a witness whether 
 such a plan is correct, though leading, is still proper, as 
 mere inducement.'* So, in a suit l)ctween the owners of 
 adjoining land, to establish the dividing line, both parties 
 deriving th(;ir title from the same grantor, a map annexed to 
 the deed of the premises to said grantor, and referred to in 
 the deed, is sufficienth' authenticated quoad the parties to 
 the suit, and is admissible evidence.^ Copies of old maps 
 and plans of Philadelphia, in the office of the surve3'or- 
 g(;neral, and certified l)y him, and the list of first purchasers, 
 with the advertisement annexed, and historical books 
 
 ' Pollard V. Smith, Peake, 18. 846 ; Burnett v. Thompson, 13 Ired. 
 
 * Johnston v. Jones, 1 Black (U. (N. C.) L, 379. 
 
 S.), 209; Stein v. Ashby, 24 Ala. 521 ; » Gates v. Kieff, 7 Cal. 124 ; Smith 
 
 Thrall r. Smiley, 9 Cal. 529 ; Dunn v. Strong, 14 Pick. (Mass.) 128; 
 
 r. Hays, 21 Me. 76 ; "Wilder v. St. Sur<r.itt v. Doe, 24 Miss. 118. 
 
 Paul, 12 Minn. 192 ; Jackson v. * Stuart v. Binsse, 10 Bosw. (N. 
 
 Vandyke, 1 N. J. L. (Coxe) 28 ; Y.) 430. 
 
 Jackson r. Frost, 5 Cow. (N. Y.) * Crawford v. Loeper, 25 Barb. 
 
 (N. Y.) 449.
 
 SEC. 105.] HEAKSAY — ANCIENT POSSESSIONS. 295 
 
 generally, received as authentic, are admissible in evidence 
 of remote transactions.^ So maps and ancient surveys, as 
 well as reputation^ are evidence to elucidate and ascertain a 
 boundary, but not to impeach official grants on public record, 
 where control has been long exercised in conformity to the 
 grants.^ In the trial of actions involving the title to lands, 
 plans of the. premii^es may be shown to the jury, and taken 
 by them to the jury-room, if proved to be correct so far as 
 they go, although they may not make a fair representation 
 of the case.^ 
 
 Sec. 105. Verdicts, Etc. 
 
 ♦ On questions of immemorial customary rights, and on 
 questions of public or general interest, verdicts, judgments 
 and decrees in suits in which the same right was in litigation, 
 are admissible in evidence, although the suits were between 
 other parties.* 
 
 In the case of Reed v. Jackson,^ where, in an action 
 of trespass, issue was joined on a plea of public right of way, 
 the plaintiff wns allowed to give in evidence a verdict found 
 in his favor against a ditferent defendant, upon an issue 
 joined as to the existence of the same right of way, 
 Lawrence, J., saying: " Reputation would have been 
 evidence of the right of way in question ; a fortiori the 
 finding of twelve men upon their oaths." It has been 
 estaljlished by a long course of authorities^ that verdicts as 
 well as judgments and decrees are admissible as evidence of 
 reputation. If not amounting to reputation itself, they are 
 as good evidence as reputation? And in all cases involving 
 a general right, where reputation is evidence, a verdict or a 
 judgment — although between other parties — is evidence, 
 not, indeed, of any specific fact existing at the time, but as 
 evidence of the most solemn kind of an adjudication of a 
 
 ' Commonwealth v. Alburger, 1 ^1 East, 356. 
 
 Whai-t. (Pa.) 469. ® See Lord Denman, C. J., in 
 
 * Penny Pot Landing v. Philadel- Evans ??. Rees, 10 Ad. & El. 156. 
 
 phia, 16 Penn. St. 79. ' By Littledale, J., in Brisco V. 
 
 3 Wood V. Willard, 36 Vt. 82. Lomax, 8 Ad. & El. 211. 
 
 "* See Brune v. Thompson, Car. 
 & M. 34.
 
 29G EVIDENCE. [chap. VU. 
 
 competent tribiiiuil upon the state of facts, and the question 
 of usage, at that tinic.^ 
 
 Ill au t'arly case,^ where the question discussed was con- 
 cernino- the right of the city of London to talie certain tolls 
 upon malt brought to London by west-country l)argcs, it 
 was held that verdicts against certain owners of barges were 
 admissible in evidence against other owners who. were neither 
 parties nor privies to the former records. Similar evidence 
 hius been received upon a question respecting the right of 
 elect in"" church- wardens.-^ And it does not atfect the admis- 
 sibilily of such evidence, although it may diminish its weight, 
 that a judgment has been suffered by default, and does not 
 appear, though of recent date, to have been followed up by 
 execution or the payment of damages, or even that the ver- 
 dict has not been followed up hy a judgment or decree. •* 
 Thus, in the case of Brisco v. Lomax,^ on a question as to 
 the boundary between the manors of A. and B., the finding 
 of a jury under an ancient commission from the Duchy 
 Court of Lancaster, for the purpose of determining the 
 l)0undary between the manors of B. and C, on a petition of 
 the owners of the two last-mentioned manors, representing 
 that the boundary was uncertain, and that suits were likely 
 to arise between them, was adjudged to be admissible evi- 
 dence ; it appearing that the three manors of A., B. and C. 
 were so situated with reference to each other that the ascer- 
 taining of the boundaries between B. and C. would throw 
 light U[)on the boundaries between A. and B., although the 
 verdict of the jury did not appear to have been followed up 
 1)y a decree or judgment. '• For," as Coleridge, J., said, 
 *'on a question of manorial boundary between two owners, 
 re[)utation is admissible ; and verdicts are evidence, where 
 reputation is admissible, between third parties. The neces- 
 
 ' By LoKD AnixGER, C. B., in Piin 412 ; Travis v. Chaloner, 2 Eag-. & 
 
 ■». Curell, 6 M. & W. 266, Y. ; Biddulph v. Ather, 2 Wils. 23. 
 
 " Cityof London •». Gierke, Carth. ' Berry Jv. Banner, Peake N. P. 
 
 181. See also Cost «. Birkbeck, 1 C. 157. 
 
 Doug. 218; the case of the Man- * Carnarvon (Earl of )?). Villebois, 
 
 Chester Mills, 1 Doug. 221, n. ; 13 M. & W. 313, 329, 332. 
 
 «oi^oi-set V. France, 1 Str. 0.59 ; ^ 8 Ad. & El. 198. 
 Clurkson v. Woodhouae, 5 T. R.
 
 SEC. 106. J HEARSAY — ANCIENT POSSESSIONS. 297 
 
 sity of a decree or judgment to render the verdict admissi- 
 ble exists only where it is sought to bind the parties conclu- 
 sively by the finding ; but here the verdict is not oftered as 
 conclusive evidence, hut as evidence in the nature of repu- 
 tation. 
 
 Sec. 106. Judgments, Decrees and Orders. 
 
 In an action by the lord of a manor against a copyholder 
 for trespassing on his free warren,' a judgment on a quo war- 
 tanto brought against a former owner of the manor, wherein 
 the then defendant pleaded, and the attorney-general con- 
 fessed, a prescriptive title to the franchise of free warren 
 as appurtenant to the manor, has been held to be evidence 
 for the plaintiff in support of the right of free warren by 
 prescription, as being the judgment of a competent court 
 upon a matter of a public nature, which concerned the 
 crown and the subject. So, on the trial of an issue whether 
 the deputy oyster-masters of the city of London have an 
 immemorial customary right, as claimed by them,^ a decree 
 of the Court of Exchequer, relative to the matter in issue, 
 was held to be admissil)je in evidence, upon the same footing 
 as a verdict is admissible on a question of custom. If the 
 decree has a tendency to prove any fact material to the issue, 
 it is admissible. So decrees and orders of other competent 
 tribunals are admissible as evidence of reputation. Thus, 
 orders of commissioners of sewers, requiring landowners to 
 repair sea-walls, are evidence upon an issue as to the liability 
 of a party to make such repairs ; and if they are of ancient 
 date, it will be presumed that they have been duly acted 
 upon. 3 But a decree or order, to be adniis3il)le, must l)e 
 final ; mi#e interlocutory orders ^\\\\ not be evidence. Thus, 
 in the case of Pim v. Curell and others,^ in an action for the 
 infringement of a right of ferry, ancient proceedings in the 
 Court of Chancery of the duchy of Lancaster, containing 
 orders made by the court in the matter of an information 
 
 ' Carnarvon (Earl of) V. ViUebois, ' R. v. Leig-h, 10 Ad. & El. 398. 
 13 M. & W. 313, 331. * 6 M. & W. 234, 266. 
 
 ^ Lay bourne v. Crisp, 4 M. & W. 
 320, 327.
 
 298 EVIDENCE. [CHAr. VH. 
 
 nlatiii*'' to tlic ffiTv, wt ic ollVrcd in evidence on the part of 
 tlie plaintiir, and leccivcd at llic trial ; bnt the Court of 
 Kxc-luMjncr adjuducd tiic order lt> lie iiKuhnissihle, inasmuch 
 as it was a mere interlocutory order, and did not involve 
 anv judirnient upon the facts or on the rights of the parties. 
 Bnt this rule as to the admissibility of verdicts and other 
 judicial documents as evidence of reputation does not 
 extend to aw art Is. even in cases where the cause has been 
 referred bv an oi'der of a Judge at Nisi Prius, as the author- 
 ity of an arbitrator is entirely derived from the consent of 
 the parties to tlu^ reference, and the award is but the opinion 
 of the arbitrator, formed upon the result of evidence laid 
 before him, generally in private.' Nor will a verdict or 
 other judicial document be receivable, unless it appear that 
 the tribunal was acting under legal authority. Thus, upon 
 a (piestion res[)ecting the jurisdiction of the Court of Ses- 
 sions of the county of Chestei-,^ an order and decree upon 
 the subject by the Lord High Treasurer and certain other 
 public functionaries of the kingdom (not forming any court 
 known to the laws) was held inadmissible as evidence of 
 reputation, because, as was said l)y Lord Tenterden, C. J., 
 declarations are only evidence of reputation wheri made by 
 those who have a personal knowledge of the fact ; Avherejis, 
 in the case in question, the })ersons acting as judges had no 
 knowledge of the fact, except what was derived m the course 
 of the proceeding. 
 
 Sec. 107. Grounds upon which these Rules are Founded. 
 
 The ground for receiving evidence of reputation upon 
 matters of [)ul)lic and general interest is, that the statements 
 should have l)cen made by persons likely to j)Ossess a com- 
 petent knowledge of the facts to which their statements 
 relate. It has sometimes been thought that this qualification 
 must necessarily be satisfied where the matter is of public 
 interest, because, as Lord Kenyon, C. J., in one case ob- 
 served, '= all mankind being interested therein, it is natural to 
 
 ' Evans v. Rpes, 10 Ad. & El. 151, * Roarers ?\ Wood, 2 B. & Ad. 245. 
 155. See also R.v. Cotton, 3 Camp. ^ In Morewood v. Wood, 14 East, 
 444. 329, n.
 
 SEC. 107.] HEARSAY — ANCIENT POSSESSIONS. 299 
 
 suppose that they may be couversaut with the subject, and 
 that the}' should discourse togetlier aliout it, having all the 
 same means of information. And Lord Ellenborough, 
 C. J., has stated it to be the general understanding upon 
 which the decisions of the courts have proceeded, "that 
 upon questions of pul)lic right all are interested, and must 
 be presumed couversaut with them." ^ But in a later case,* 
 the court observed that it was clear that hearsay evidence 
 upon some subjects could not be received, imless ivith a quali- 
 fication that it came from persons who had a special interest 
 to inquire ; that in cases of pedigree the line was clearly de- 
 fined ; and that in cases of rights or customs which are 
 not, properly speaking, public, but of a general nature, and 
 concern a nndtitude of persons, as questions with respect to 
 boundaries and customs of particular districts, though the 
 rule is not so clearly laid down, it seems that hearsay evi- 
 dence is not admissible, unless it is derived from persons con- 
 versant with the neighl)()rhood. Where the right is really 
 pul)lic, as a claim of highway, in which all are interested, it 
 is difficult to say that there ought to be any such limitation, 
 and none seem to exist, as in a matter in which all are con- 
 cerned, reputation from any one is receivable ; but of course 
 it would be almost worthless, unless it came from persons 
 who were shown to have some means of knowledge, as by 
 living in the neighborhood, or frequently using the road in 
 dispute. In the case last cited, which related to a custom in 
 which all were not interested, but only such as chose to 
 become adventurers in mines within a certain district, it was 
 said that hearsay frojji persons ivhoU// unconnected with the 
 place in which the mines were found would be of no value, 
 and probably altogether inadmissible ; but that the hearsay 
 of persons under whose estates the minerals lay, with respect 
 to which the custom existed, was admissible, because they 
 were sufficiently connected with the subject, although not 
 concerned in mining, nor receiving the dues of mines. In 
 Rogers v. Wood,^ a document, purporting to be a decree of 
 
 ' In Weeks v. Sparke, 1 M. & S. " Crease v. Barrett, 1 C, M. &R. 
 686. 927. 
 
 " 2 Bing. 86.
 
 300 EVIDENCE. [CIIAP. \1I. 
 
 ceituiii piil)llc functionaries, who had no authority as a court, 
 was held to ho iiiadmissihle as evidence* of reputation on a 
 question wlielher the eily of Chester, hefore it was made a 
 couiil}' of itself, formed a part of the county pahitine, he- 
 cause those persons from their situations had no peculiar 
 knowledge of the fact. In another case' Le Blanc, J., laid 
 great stress upon the circumstance that the evidence of repu- 
 lation in that qxxbq proceeded from persons who had been con- 
 vcrsaiif with the neighborhood cohere the ivaste lay to which 
 their .'^tateinnits referred ; and that no evidence was received, 
 except fioni persons connected with the district then in ques- 
 tion, liut actual inhahitancy in the place of which the 
 l)oundaries are in dispute is unnecessary. Thus, justices of 
 the peace, at the sessions of the county within which the 
 distriet was alleged to he, were considered, on account of the 
 charaeter and nature of their office, without proof of their 
 hcing residents, to have sufficient connection with the sul)- 
 jccts in dispute to render the statements in their orders, as 
 to the location of Nottingham Castle, admissible evidence of 
 reputation.* So, on a question of parochial or manorial 
 boundary, the declarations of old persons, deceased, have 
 been held admissible, although they were i)arishioners, and 
 claimed rights of common on the wastes which their declar- 
 ations had a tendency to enlarge.^ So, on a question of 
 parochial 7nodus, it was held that the declarations of deceased 
 parishioners and occupiers of lands in the parish who were 
 liable to pay tithe were admissible.* In Crease* v. Barrett,^ 
 certain answers of conventionary tenants were objected to 
 as not being admissible against the freeholders of a manor, 
 to whom it was said they had an adverse interest, and it was 
 contended that all the cases in which the hearsay of copy- 
 holders had been received, related to questions ])etween lord 
 and copyholder, or copyholder and copyholder. The answers, 
 however, were held to be admissible evidence. 
 
 ' Weeks v. Sparke, 1 M. & S. 688, * Harwood v. Sims, 1 Wig-htw. 
 
 689. 12 ; Moseley v. Davies, 11 Price, 
 
 " New Castle v. Broxtowe, 4 B. & 162, 180 ; Deacle v. Hancock, 13 
 
 Arl. 273. Price, 226. See what is said by 
 
 ' Nicholls V. Parker, 14 East, Graham, B., in 13 Price, 236. 
 
 ^1. n- •* 1 C, M. & R. 927.
 
 SEC. 108.] HEARSAY — ANCIENT POSSESSIONS. 301 
 
 Sec. 108. Position of Parties Presumed to be as Stated in Ancient 
 
 Documents. 
 
 Where proceedings in an. ancient suit are produced as 
 evidence of reputation upon matters of pnljlic or general 
 interest, it may generally be presumed that the parties to 
 the suit and the witnesses were actually in the respective 
 capacities which they purported to have been, without 
 proving this by evidence dehors the proceedings themselves.* 
 Thus, in Freeman v. Phillipps,^ an action by a copyholder 
 against the lord of a manor, in which the defendant gave in 
 evidence the proceedings in a suit in equity in the time of 
 King William III, brought by a copyholder of the same 
 manor against the then lord, it was held that no evidence 
 aliunde was requisite to make the proceedings admissible. 
 Bayley, J., said: "We must assume at this time of day 
 that the bill was not a mere fabrication, but was really tiled 
 by such a copyholder against the lord, and that the trial was 
 had and the depositions made Ijetween such parties as were 
 really litigating their rights in the characters claimed and 
 disclosed on the record." And with respect to the depositions 
 the same judge observed : " These I do not look upon merely 
 as the declarations of persons unconnected with the subject, 
 but as tile depositions of persons, made by them in the 
 character of witnesses brought forward by the copyholder, 
 whose interest it was to pnt foremost such witnesses as were 
 best al)le to depose to the matter in dispute. Why am I to 
 assume that the copyholder brought forward witnesses who 
 were ignorant ? I do not agree that it was necessary to 
 prove the witnesses to have been copyholders, in order to let 
 in their testimony. The plaintiff's witnesses in the last trial 
 do not all appear to be copyholders, yet, as they were present 
 at the holding of courts, and therefore knew what passed, 
 they were competent to speak to that. So in the former 
 suit I cannot infer that they were incompetent to have a 
 
 ' A stricter rule has been laid terest. Davis v. Morg-an, 1 C. & J. 
 
 down in some pedigree cases (the 591; Adamthwaite v. Synge, 1 Stark. 
 
 Banbury and Berkeley Peerage R. 183, 189 ; S. C, 4 Camp. 372 ; 
 
 Cases), and the same point occurs in Slane Peerage, 5 CI. & Fin. 23. 
 
 regard to declarations against in- ^ 4 M. & S. 495.
 
 302 EVIDENCE. [ciiAr. vir. 
 
 knowledge of the facts they dcpobcd to ; on the coiuiaiy, it 
 la to Ik* prcsiiMicd they h;id ii competent knowledge, hciug 
 l)roii<''lit forward as wiliicsscs by a co[)yli()ldcr." Loui* 
 Ellenbouougii, C. J., ill the same case, observed : " Con- 
 sidering the depositions as made in a snit which may now 
 be said to be lost in remote antiquity, we should give this 
 record Imt very little etl'ect, if we did not attribute to it 
 veriiN' in many of the particular matters which it contains, 
 such as, that the parties litigant were clothed with the rights 
 in which they profess to stand, and were agitating the claim 
 put forward on the record." 
 
 Sec. 109. Proof of Modem Exercise pf Right. 
 
 Another cautionary rule, in receiving hearsay evidence in 
 matters of i)ul)lic or general interest, has been supposed to 
 be, at least where the nature of the case admits of it, that a 
 foundation for it should be laid by proving acts of modern 
 enjoyment. Lk Blanc, J., in spcaldng of the manner in 
 which matters of this nature are to be proved, says :^ "First 
 they arc to be proved hy acts of enjoyment within the period 
 of living memory ; and when that Ibundation 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 of what they have heard 
 other persons of the same neighborhood, since deceased, 
 say respecting the right." Again : "After a foundation is 
 once laid for the right by proving acts of ownership, the 
 evidence of reputation becomes admissible." And Blller, 
 J., ill another ease ol)scrved :^ "Thus far I agree with Lord 
 Kknvon and Mr. Justice Ashurst, that in no case ought 
 evidence of reputation to be received, except a foundation 
 be laid, by other evidence, of the right." But this does not 
 now seem to be the rule, and in a later case,' in answer to an 
 observation that all evidence of reputation wjis inadmissible, 
 
 ' In Weeks v. Sparke, 1 M. & S. Madd. 214, the vice-chancellor said 
 
 ^^' that evidence of reputation was only 
 
 ' In More-wood v. Wood, 14 East, admitted in confirmation of actual 
 
 330, n. And see Ratcliff v. Chap- enjoyment, and not against it. 
 
 man, 4 Leon. 242, commented on in » Crease V. Barrett, 1 C, M. & R. 
 
 5. T. R. 32. In White v. Lisle, 4 927.
 
 SEC. 109.J HEARSAY ANCIENT TOSSESSIONS. 303 
 
 unless confirmed by jjroof of facts, it was said that such 
 proof was not an essential condition of its reception, but 
 that it was only material as affecting the value of the evidence 
 when received} Where the subject-matter of the question 
 does not, from its nature, admit of acts of enjoyment, proof 
 of reputation, though unaccompanied by evidence of acts 
 done, is admissible. On a question respecting the custom of 
 descent within a manor, it has been held that reputation is 
 admissible, without showing any instances of its havhig been 
 put in use ; ^ for were it otherwise, if no instances were to 
 happen within the memory of man, and the old court rolls 
 were to be lost, the custom itself would be entirely destroyed.^ 
 And in one case. Lord Tenterden, C. J., intimated an 
 opinion that the existence of a manor might be proved by 
 reputation alone, Avithout evidence of the exercise of any 
 manorial rights.'' It is not necessary that statements of 
 opinion upon any subject by deceased persons should ex- 
 pressly appear to be founded upon reputation derived from 
 others. Thus, on an issue whether or not certain land, in a 
 district repairing its own roads, was a common highway, it 
 has been held to be admissible evidence of reputation that the 
 inhabitants held a public meeting to consider the question of 
 repairing such way, and that several of them, since dead, 
 signed a paper on that occasion, stating that the land was 
 not a public highway, there being at the time no litigation 
 on the sul)ject.^ 
 
 General hearsay, or, in other words, public reputation, is 
 sometimes adduced as ancillary evidence in laying the foun- 
 dation for presuming a public corporate grant. Thus, the 
 defendant justified in trespass de bonis, etc., as collector, the 
 taking of goods for parish taxes ; and the Massachusetts 
 provincial records having been burnt by two several fires, 
 and no charter of incorporation being found among those 
 
 * There was, however, sufficient v. Jeffery, 2 M. & S. 92 ; Doe v. 
 
 proof of enjoyment given in that Mason, 3 Wils. 63. 
 
 case. * 2 Stark. R. 466. This was ruled 
 
 ' Beebee w. Parker, 5 T. R. 26, 31 ; also by Lord Kenyon, C. J., in 
 
 Foster V. Sisson, 12 East, 62. Curzon v. Lomax, 5 Esp. 60. 
 
 ' By Grose, J., 5 T. R. 32 ; Roe " Barraclough v. Johnson, 8 Ad. 
 
 & El. 99.
 
 304 KVIDKXCE. [chap. VII. 
 
 Mil)>i>tiiiL', till' t]cfeii<l:iMt was allowed to prove the incorpo- 
 ration of llic paii>h l»y ireneral ivpntation.' Another and 
 very toinmoii >ort ol" hearsay is general re[)ntation to })rovc 
 that a man holds a i)nhlie oHlcc or employment. This is 
 Hsnally introduced in connection with evidence; of such acts 
 as the otlice or employment imputed presupposes his right or 
 duty to perform. The extent to which this doctrine has 
 heen applied will he partially seen by consultingour prior and 
 suhseepient notes, with the text to wiiich they refer. Wc 
 there spoke of it, with reference to the degree of evidence, 
 lis primary or secondary. We shall here add some further 
 instances, whicii, while they will tend to enlarge the illustra- 
 tion under that head, are intended more i)articularly to test 
 the application and force of hearsay evidence. In Porter v. 
 Luther.- the court held that public re[)utation was admis- 
 sible to prove the defendant a deputy sheriff, which was part 
 of his i)lca of justification ; and they say : " It is a general 
 rule to admit proof by reputation that a person acts as a 
 general public officer or deputy." In pursuance of this rule, 
 it Wiis received, in connection with the defendant's acts, to 
 show that he was over.seer of a certain road district ;3 to show 
 that i)ersons claiming to be collectors of school districts 
 Avere in fact such ; ^ that a military officer acting as president 
 of a court martial was in fact president ; ^ that a person is 
 a constable,^ county commissioner,''' a justice of the peace,® 
 a collector,^ or indeed to show that any person claiming to 
 hold a certain office acted as such, and discharged the func- 
 tions of the office. 
 
 ' Dillingham v. Snow, 5 Mass. 547. • Adams v. Jackson, 2 Aik. (Vt.) 
 
 » 3.1f)hn. (N. Y.)431. 145. 
 
 * Dean v. Gi-idley, 10 Wend. (N. ' Keyser v. McKisson, 2 Rawle 
 Y.) 2.i4. (Penn.), 139. 
 
 * Ring w. Groat, 7 Wend. (N. Y.) « Wilcox v. Smith, 5 Wend. (N. 
 341 ; McCoy v. Curtice, 9 id. 17. Y.) 23. 
 
 ' State V. Gregory, 2 Murph. (N. » Eldred v. Sexton, 5 Ohio, 215. 
 C.) 69.
 
 CHAPTER VIII. 
 
 HEARSAY TO ESTABLISH PRIVATE BOUNDARIES. 
 
 SECTION. 
 
 110. Admissible, when. 
 
 111. Declarations of Deceased Surveyors. 
 
 112. Of Persons shown to have been in a Situation to Know. 
 
 113. When Hearsay is not Admissible. 
 
 114. Declarations of Owners. 
 
 Sec. 110. Admissible, ■when. 
 
 Ill this country, the declarations of deceased persons who 
 are shown to have been in a position to know the facts, are 
 admissible to establish the boundaries of lands owned by 
 private persons.' 
 
 This species of traditionary evidence has, as we have seen, 
 always been admitted, both in this country and in England, 
 to prove facts of a public or general nature, and in this 
 country most of our courts have extended the rule, and ad- 
 mitted this species of evidence to prove the boundaries of 
 lands between individuals ; and the extension of the rule in 
 this respect is justified by the same necessity which justifies 
 the original rule. In Connecticut,^ where the question in an 
 action of ejectment was, whether a highway reserved in 1^76 
 was laid out over certain meadow land, as the defendant 
 claimed, or over the upland, as the plaintiff claimed, the 
 plaintiff, in support of his claim, offered as witnesses several 
 aged men, who testified that when young they heard old 
 men, since dead, say that there was a traveled road for high- 
 
 ' Boardman v. Reed, 6 Pet. (U. Wend. (N. Y.) 536 ; Nieman v. 
 
 S.) 328; Ellicotti). Pearl, 1 McLean Ward, 1 Watts & S. (Penn.) 68; 
 
 (U. S ), 206 ; Wooster v. Butler, 13 Spear v. Coate, 3 McCord (S. C), 
 
 Conn. 309 ; Howell v. Tilden, 1 Har. 228 ; Blard v. Talbot, Cooke (Tenn.), 
 
 & M. (Md.) 84; Redding v. Mc- 142; McCloud v. Mynatt, 2 Coldw. 
 
 Cubbin, id. 368; St. Louis v. Risley, (Tenn.), 163; Wood v. Willard, 27 
 
 40 Mo. 356 ; Adams v. Stangan, 24 Vt. 377. 
 
 N. H. 405 ; Dibble v. Rogers, 13 ^ Wooster v. Butler, 13 Conn. 309. 
 
 20
 
 .■)(lti 
 
 KVIDKNCE. 
 
 [CIIAP. viir. 
 
 •\vny over the uplaiul. iiiiil llu' court held lliut thi.s evidence 
 >vas admissible.' In Noith Carolina,^ in a case where it be- 
 came necessary to show the location of the beginning corner, 
 un<lt'rthf calls of the dclcndant's deed, the dflriidaiit proposed 
 to >how, by his own evidence, where such coi luT was, by the 
 declarations of one Gaskins, who [loinled out the corner to 
 him, and who, at the time when the declarations were made, 
 was a slave belonging to a person who was then in the i)os.ses- 
 sion of an adjoining tract of land lus owner, both of whom, at 
 the time of the trial, were dead. The testimony was iv- 
 jccted, l)ut u[)on appeal the Supreme Court held that the 
 evidence was clearly admissible.' A similar doctrine is held 
 in Vermont,* New Hampshire,^ Maryland,"^ Penn.sylvania,"'' 
 Tennessee,^ South Carolina,^ New York,^" Massachusetts" and 
 Texjiii.'* But this class of evidence is only admissible where 
 the person makinfj the declaration is shoion to be dead,^^ and 
 
 ' Higley )'. Bidwell, 9 Conn. 447 ; 
 1 Swift's Digest, 766 ; Porter v. 
 "Warner, 2 Root (Conn.), 22. 
 
 " Whitehurst v. Petiphur, 87 N. 
 C. 179. 
 
 * See aLso, to the same effect, Har- 
 ris V. Pai-nell, 1 Hayw. (N. C.) 349 ; 
 Caldwell v. Neeley, 81 N. C. 114 ; 
 Gervin v. Meredith, 2 Car. L. R. 
 439 ; Dobson v. Finley, 8 Jones (N. 
 C), 495. 
 
 ♦ Wood V. Willard, 37 Vt. 377; 
 Evarta v. Young, 52 id. 329 ; Put- 
 nam V. Fisher, 52 id. 191 ; Powers 
 r. Sil.sby. 41 id. 288. 
 
 ' »»n»ith V. Powei-s, 15 N. H. 546 ; 
 Wend.-U v. Ab]K)tt, 45 N. H. 349; 
 Adams ?;. Stannard, 24 id. 405 
 
 • H:dl V. Gittings. 2 H. & J. (Md.) 
 112; Medley v. Williams, 7G. & J. 
 (Md.)61. 
 
 ' Bender v. Pitzer, 27 Penn. St. 
 333. 
 
 ' McCloud V. Mynott, 2 Caldw. 
 (Tenn.) 163. 
 
 • Shear v. Coate, 3 McCord (S. 
 C). 228. 
 
 '" Dibble V. Rogers, 13 Wend. (N. 
 Y.) 536. 
 
 " Bartlett v. Emei-son, 7 Gray 
 (Mass.), 174; Long v. Cotton, 116 
 Mass. 414. 
 
 " Coleman v. Smith, 55 Tex. 254. 
 
 " Wood V. Willard, 37 Vt. 372. 
 See also the cases previously cited 
 in this section. Blythe v. Suther- 
 land, 3 McCord (S. C), 258 ; Long 
 V. Pellett, 1 H. & McH. (Md.) 53. 
 And the fact that theii* whereabouts 
 is unknown, or that they are out of 
 the State, is not sufficient. Buchanan 
 V. Moore, 10 S. & R (Penn.) 275 ; 
 Gervin v. Mei-edith, 2 N. C. L. R. 
 634. But there is a distinction in 
 this respect between proving general 
 reputation and particulai* declara- 
 tions. In the former case, proof of 
 the death of the i)erson from whom 
 the information was derived need 
 not be proved, but in the latter it 
 must be proved. In Smith v. Now- 
 ells, 2 Litt. (Ky.) 159, this distinc- 
 tion was illustrated by a matter 
 relating to boundaiies. In that 
 ca.se the plaintiff brought ejectment, 
 and it ajipeared that the plaintiff 
 and the defendant claimed under 
 interfering grants from the same
 
 SEC. lll.J HEARSAY PRIVATE BOUNDARIES. 307 
 
 zs shown to have had actual knoivledge of the lines or boun- 
 daries in question,^ and stood in such a relation to the prop- 
 erty as to have no interest to misrej^resent the fact,- and in 
 many of the States that the declaration must Jiave been 
 made upon the ground,'^ and, in Massachusetts, that they must 
 have been made by jpersons in the possession of adjoining 
 land as owners.'^ But in New Hampshire^ it is held that 
 the dechirant need not have been upon the ground at the 
 time when the declarations were made ; and in North Caro- 
 lina ® that he need not evrn have been in view of the prem- 
 ises. In most of the States it is not necessary that the 
 declarant should ever have been in possession of the land as 
 owner or otherwise, but simply that he should be shown to 
 have been in such a situation in reference tJiereto as to have 
 actual knowledge of the facts'' 
 
 Sec. 111. Declarations of Deceased Surveyors. 
 
 And upon this ground the declaration of deceased sur- 
 veyors, who have surveyed that or adjoining lines, or of any 
 deceased persons who are shown to have been in a situation 
 to know the facts, although they had no interest whatever 
 
 source — the plaintiff's being the nature of the thing-, an old boundary 
 
 oldest. The defendant read in evi- cannot in g-eneral be proved by di- 
 
 dence a patent of land to one B., rect and positive proof; and repu- 
 
 older than that under which the tation is, therefore, from necessity, 
 
 plaintiff claimed; and to show that admissible." 
 
 it covered a part of the land in ^ Wood v. Willard, ante; Powers 
 
 controversy, asked a witness v. Silsby, ante. 
 
 whether certain lines were, before " Wood v. Willard, ante; Mason 
 
 the commencement of the action, v. McCormick, 85 N. C. 226. 
 
 generally reputed in the neighbor- ^ Bender v. Pitzer, 27 Penn. St. 
 
 hood to be the lines of B.'s survey. 333 ; Daggett v. Shaw, 2 Met. 
 
 This was objected to, but admitted, (Mass.) 223. 
 
 and the court held that it was prop- * Bartlett v. Emerson, 7 Gray 
 
 erly admitted, the court saying: (Mass.), 174; Ware v. Bi-ookhouse, 
 
 " What any one, even a person who 7 id. 454; Flagg v. Mason, 8 id. 
 
 had been present at the making of 556. 
 
 the survey, had been heard to say, ' Smith v. Forrest, 49 N. H. 230. 
 
 would no doubt be inadmissible, ® Scaggin v. Dalrymple, 7 Jones 
 
 unless the death of such person was (N. C), 446. 
 
 first proved ; hut there is a differ- ' Wood v. Willard, ante ; Smith 
 
 ence between hearsay of particular v. Forrest, 49 N. H. 230 ; Great 
 
 and general reputation. From the Falls Co. v. Worster, 15 id. 412.
 
 .)(*.^ 
 
 EVIDENCE. [CIIAP. VIII, 
 
 iu tijo o>.tal)li.slinipnt of tlic boundaries, arc admitted us evi- 
 donce.' Ill a South Carolina ctusc.* the question was one of 
 loealion, or lioundarics l)et\vecn the parties, and arose in an 
 action of //r.sjid.ss f<> tri/ ////cs, which is equivalent to a real 
 action at coniintm hiw. The witness said: "1 was well 
 ac(iuainli'(l with the lines of "Watt's tract, a short time after 
 tliry were run, and derived my information from Burnet 
 Crafton, the original surveyor who run them. He showed 
 ihcm to me four or five weeks after he made the survey. 
 He showed me a poplar station on the north side of the 
 Oslondy river on liil( y"s line, which lie said was a station 
 for both tracts, viz., Watt's and Tiiley's. He then showed 
 ine u stake which he said was the north-western corner of 
 Watt's tract, and al)out two feet from it a hickory bush or 
 small tree, now a stump, which he said was the corner of 
 liiley's land. I have lived within u mile of this land ever 
 since, and am well ac(piaintcd with it. The said Crafton 
 further told me that the line commencing at the fallen red 
 oak and ruiming west was made ])y him, and intended at 
 tii"st as a boundary ; but when he came to the good fiat land. 
 Watt directed him to annul and discontinue it, which he did. 
 He then went to Riley's corner, and placed a stake as a 
 corner for Watt's tract, near the hickoiy stump aforesaid, 
 and then ran a line so as to intersect the widow C/riswell's 
 line below." This testimony was rejected at the circuit, 
 because the sui-veyor's d<'ath had not been proved ; but on 
 motion for a new trial, the court held it to be ol)viously ad- 
 missible as secondary evidence ; and the omission to pro- 
 vide proof of the death appearing to have been inadvertent, 
 they granted a new trial, with a view that the formality might 
 be supplied. 
 
 The foundation of this proof as to surveyors' declarations, 
 and the cpialifications and aspects under which it is to be 
 received, had been examined in several cases before the 
 decision in the case lust referred to. Thus, in a Pennsylvania 
 
 ' Miller V. Wood, Vt. S. C. 186S (Conn.), 22; Blythe v. Sutherland, 
 (Rutland Co.); Wood ■» Willard, 3 McCord (S. C), 258. 
 ante ; Porter v. Warner, 2 Root » Blythe v. Sutherland, ante.
 
 SEC. 111.] HEARSAY PEIVATE BOUNDARIES. 309 
 
 case/ ill ejectment, it became material for the plaintiff to 
 show a survey by A., pursuant to instructions, for C, under 
 whom the plaintiff claimed ; and the plaintiff offered to show 
 that A., who was dead, and whose papers had been burnt, 
 had declared that he had been instructed in writino: to make 
 the survey, and the place where. This was held inadmissible, 
 as not lacing hearsay in respect to boundary, l^ut in respect 
 to the contents of a paper. In another case, the plaintiffs 
 claimed to a certain extent, and according to W.'s smwey. 
 W. was dead, and to prove the extent of the survey, they 
 offered in proof what he had said. This was received, and 
 held welh Tilghmax, C. J., said : "When boundary is in 
 question, what has been said by a deceased person is received 
 as evidence. It forms an exception to the general rule. It 
 was impossible for the plaintiffs to show the extent of their 
 possession without showing the lines run by W. Those lines 
 were the plaintiffs' Ijoundaries ; at least such was their claim. 
 It appears to me, therefore, that what was said by W. comes 
 within the exception which admits the words of a deceased 
 person to be given in evidence in a matter of )K)undary.^ 
 Again, in ejectment, the lessor of the plaintiff claimed a 
 tract called D., in Arundel county (^Maryland), according 
 to certain lines, and was allowed to show that the surveyor 
 appointed for that county had run the lines, and made certain 
 declarations as to the boundaries and termination of the lines, 
 in connection with declarations from other persons who were 
 dead.^ In another case the plaintiff claimed the locas in quo 
 under a survey, etc., in 1785, and the defendant under a 
 survey in 1763. On the trial the defendant offered to prove 
 that in 178G, D., deceased, had shown a boundary line between 
 the locus in quo and his, D.'s, tract ; and had also shown a 
 witness a walnut tree, as the common corner of three surveys, 
 one for D., and another for S. and F. This testimony was 
 admitted, and, on error, held well.. Tilghman, C. J., said: 
 *' It is not denied that, in general, the declaration of a deceased 
 
 ' Bonnett v. Devebaugh, 3 Bin. gation of Cedar Spring, 6 Bin. 
 <Penn.) 175. (Penn.) 59. 
 
 * Caufman v. The Presb. Congre- ' Weeni v. Disney, 4 H. & M' H. 
 
 (Md.) 156.
 
 310 EVIDENCE. [ciIAr. \^II. 
 
 jHTsoM as to l)ountItiry is evidence ; but it is said this decla- 
 i;ili()U went to prove u survey. This objection is too refined. 
 'Phf sulKstauce ol" the evidence was, that D. showed tbo 
 luMMidary ; but this could not wdl be expressed without 
 -;i\ iiii; of what land it was the boundary. Undoubtedly, a 
 houndary licinir shown, sonic implication would arise that a 
 .survey had Ikm-u made ; but this is unavoidable. It is no 
 ohjection, however, to D.'s declarations. Those dcchu'ations 
 are only in proof of a boundary ; and if the jury thought 
 the boundary established, the inference of a survey would 
 he <li;i\vn diicclly from the fact of a boundary. The i)roving 
 of al)oundaiv is one thing, and the consecpience of aboundary 
 being i)roved another.'' ' In trespass to try titles, the plaintiff 
 clainu'd a giun tree as the true corner, and was allowed 
 to prove that G., deceased, had said he was a chain carrier at 
 the time of the original survey, and that the gum tree was 
 the corner then made.^ In ejectment, the defendant con- 
 tended that the land in dispute lay within Granville's line, 
 under which Granville he claimed ; and to show this line, he 
 was allowed to give in evidence various acts of the legislature 
 pointing out Granville's lines as the boundaries of counties, 
 iVoni 17">3 to 17.')I) ; and that, in 1772, the same line had 
 l)een run out and marked l)y connnissioncrs iis Granville's 
 line, and had ever since Ijcen the reputed line. And though 
 it did not appear how this line was ascertained by the survey, 
 and it was run merely to ascertain county lines, yet this 
 evidence was held admissible. And Henderson, J., said 
 the rule that common reputation was evidence in questions 
 of boundary was here much better applied than when we 
 j)ermit a witness to swear that a })erson, since dead, told him 
 that a certain tree in a remote wood was a line or a corner 
 tree of some other person's land.^ 
 
 Sec. 112. Of Persons shovrn to have been in a Situation to Knovr. 
 
 And so with regard to others : "It camiot be doul)ted at 
 this day that the declarations of deceased iiersons, who shall 
 
 ' Hamilton r. Menor, 2 S. & R. ' Taylors. Roe, 4 Hawks (S. C), 
 
 (P.-nn.) 70. 116.132. And see Harris t). Powell^ 
 
 * Spear v. Coate, 3 McCord (S. C), 2 Hayw. (N. C.) 349. 
 227.
 
 SEC. 112.] HEARSAY PRIVATE BOUNDARIES. 311 
 
 appear to have been in a situation to possess the information, 
 shall, on a question of boundary, be received in evidence." ^ 
 And tliere are several cases exemplifying this proposition. 
 In ejectment, the defendant produced a witness "svlio deposed 
 that eighteen years ago Charles Ridgely, deceased, told him 
 that an agreement in respect to boundaries between two 
 tracts of land, owned by T. and J. res]5ectively, had been 
 before entered into by them, giving particulars.^ It not ap- 
 pearing that Ridgely was interested, held his declaration was 
 admissible. In ejectment, the plaintiff's patent called for a 
 white oak as the beginning. He proved a marked white 
 oak ; and that this was his place of beginning, he was al- 
 lowed to prove the hearsay of a deceased person, who said 
 he heard a former proprietor, now also dead, say that the 
 white oak was the beginning tree ; and also the hearsay of 
 another, who said he ran out (surveyed) the land for the said 
 proprietor when ho purchased it, and began at the said white 
 oak, in the year 1766.^ 
 
 In the last case the court received what is called hearsay 
 in the second degree. On similar evidence being received 
 and acted upon at a trial in Tennessee, the Supreme Court 
 of Errors and Appeals in that State had occasion to pass 
 directly upon its admissibility. In ejectment (A. D. 1812), 
 it became necessary for the defendant to show where Julius 
 Sanders and others crossed Elk river in 1781, it being the 
 place of beginning called for both in the entry and grant of 
 the defendant. The defendant introduced Joseph Greer to 
 prove whiit Alexander Greer told him had been said by 
 Sanders on that sul)ject, both Sanders and Alexander Greer 
 being dead. The court allowed this, though it appeared 
 that another witness, still alive, was present and heard what 
 Sanders said. The court said : "We admit that every re- 
 move which is made from Julius Sanders renders the testi- 
 mony weaker ; but it is still competent. The object is to 
 prove where Sanders crossed the Elk river. No doubt exists 
 
 ' Per CoLCOCK, J., in Spear v. ^ Harris v. Powell, 2 Hayw. (N. 
 Coate, 3 M'Cord (S. C), 229. C.) 349. 
 
 » Hall V. Gittings, 2 H. & J. (Md.) 
 112, 121. 
 
 h
 
 ;{12 EVIDENCE. [cilAl'. Mil. 
 
 l)iji what tliis iu:iy be done iVoin evidence of what por.s()n.s 
 now di'iid Imvc l)eoii heard lo say. The same rule applies 
 lo all cjtse.s of pedigree, pie5;erii)li()U or ancient landmarks, 
 ir Ale.vaniler Ureer weri' living and present, it would be 
 eonipetent for him to prove what Sanders had said ; and he 
 being ilead, Joseph (ireer may i>e permitted to prove what 
 Alexander Greer told liim had been said by Sanders. It is 
 e.iually eomi)etent, though weaker testimony. The reason 
 whv, in eases of pedigree, prescription and ancient boundary, 
 the party may prove what persons, then dead, have been heard 
 to say when living, is, that in such cases the party claiming 
 the benefit of the evidence shall not be deprived of it by the 
 death of the witness, if he can in any wise show what knowl- 
 edge the witness had on the subject. What he has been 
 heard to say, is pretty strong evidence of what he know." 
 The court admitted that perhaps the statement of the wit- 
 ness who heard Sanders would be more satisfactory ; but it 
 might be contended, with the same propriety, that evidence 
 direct of what Sanders had said would not be admissible 
 testimony, Ijecause other [)ersons were along with him when 
 he crossed Elk river, who are now living and capable of 
 being produced.' 
 
 Sec. 113. Wlien Hearsay is not Admissible. 
 
 I>Mt no oral evidence, much less hearsay, can be received 
 to change the objects mentioned in a deed, entry or survey, 
 or. ill other words, to substitute one object for another. 
 \Vhcii coiners in a deed are lost, they may be proved by 
 reputation, but not to contradict the deed ; as, where the 
 <leed s(jts up a sugar and ash tree us the south-east, and two 
 liecches lor the north-east corner, reputation is not admissible 
 to substitute a hickory, oak and beech tree for the first, nor 
 two hickories for the other.- 
 
 Thc admissibility and influence of hearsay and reputation, 
 in respect lo boundaries, was much considered by Washing- 
 ton, J., on a (|ue.stion which arose as to the extent of a tract 
 
 • Beanl r. Talbot, 1 Cooke ' M'Coy v. GaUoway, 3 Ohio, 282, 
 (Tenn.), 142. 283.
 
 SEC. 113.J HEARSAY PRIVATE BOUNDARIES. 313 
 
 of laud called the manor of Springetsbury, in the State of 
 Pennsylvania. William Penn, the patentee of the whole 
 State (province) from Charles the First (in 1668), and his 
 descendants, the proprietors, established and kept on foot a 
 land-office, and issued regulations whereby settlers might, by 
 locations and surveys, to be made according to the rules of 
 the office, acquire equitable rights to conveyances of the 
 lands so designated by them ; the proprietors reserving a 
 right to appropriate to themselves one-tenth of the State, by 
 the like surveys. These regulations continued, and were 
 recognized by the government as valid, from the time of 
 the original grant down to 1776. Under them, iu 1722, a 
 survey was made bj' the government, and recognized by the 
 proprietors of about 70,000 acres, reserved lands, under a 
 warrant to surveyors, pointing out the precise metes and 
 bounds of the tract. This tract was surveyed for the use of 
 Springet Penn, one of the proprietors ; but it did not appear 
 whether the survey was made in fact on the land, by marks, 
 designation or admeasurement, or whether it might not 
 have been a mere paper survey, drawn out into a map from 
 calculations made under the warrant. Afterwards, from 
 this time to 1768, various contracts or licenses of sale, and 
 warrants of survey, etc., were granted by the proprietors of 
 this manor to settlers as within the manor ; and others 
 claimed to have located upon territorial lands without the 
 manor ; but the latter, as the proprietors claimed, had 
 located, in truth, within the manor. There had been a re- 
 survey by the proprietors in 1768, in consequence of the one 
 in 1722 having been destroyed. This last comprehended all 
 the settlers whose rights were in question in the suit. That 
 of 1722 comprehended only a part. A bill in equity was 
 filed by all those settlers against J. and W. Penn, the now 
 legal proprietors, to compel a specific execution of the sev- 
 eral contracts made by those under whom they claimed ; and 
 it became quite material, in respect to the difiercnt interests 
 of the complainants, to ascertain the true bounds of the 
 manor. It appeared most abundantly from the acts of the 
 proprietors intermediate 1722 and 1768, such as licenses to 
 take up, and grants of specified tracts of laud, and a war-
 
 .'U t KVIDENCE. [CIIAT. VIII. 
 
 nint lor laying out a. town, wjinunts to agree for land, and 
 warrants to adjust diHWvnccs among .settlors, etc., that they 
 all along sup^josod the manor to comprehend the lands 
 covrnd hy till' last surve}-. A letter was received in evi- 
 dence respecting the boundary, directed to one of the pro- 
 prietors. The actual settlements and improvements made 
 by licensed settlers within the manor, and the surveys and 
 settlements made around and adjoining the different lines of 
 the manoi-, were also in evidence. All these were interme- 
 diate the survey of 1722 and 1768 ; and they all had refer- 
 ence to, or accorded with, th(i boundaries in the last survey. 
 These things together showed the putative boundaries of the 
 manor to agree with the last survey as early as 1736, and 
 from that time to 1814 ; and this, although, as Judge 
 Wasiiingtox expresses it, the two surveys varied extravBr 
 gautly. lie could find in the proof no intermediate survey 
 to account for this ; and he supjjoses that the locations, 
 Ixjing made in such utter disregard of the first survey, might 
 have arisen from the lines of that survey not being actually 
 nicjisured, hut guessed at, or some of the courses only being 
 run. On the subject of such surveys, followed by reputed 
 and practical boundaries which conflicted with them, and 
 the evidence receivable on this head, he proceeds: "No 
 gentleman of the profession, who is at all conversant with 
 land trials, can be ignorant that the courses and distances 
 laid down in a survey, especially if it be ancient, are never 
 in practice considered as conclusive ; but, on the contrary, 
 they are liable to be materially changed by oral proof, or 
 other evidence tending to prove that the documentary lines 
 are not those actually run. How often have we known re- 
 l)ute(l boundaries, i)roved by the testimony of aged witnesses, 
 and even by hearsay evidence, established in opposition to 
 the most precise calls of an ancient patent ! Such evidence 
 has been constantly received ; and distances have been 
 lengthened or shortened without the slightest regard to the 
 call of the patent. The reason is obvious ; it is not the 
 lines reported, but the lines actually run by the surveyor, 
 Avhich vests in the patentee the area included Avithin these 
 lines. The survey returned, or the patent, is the evidence
 
 SEC. 114.J HEARSAY PRIVATE BOUNDARIES. 315 
 
 of the former ; natural marks of reputation is, in almost all 
 cases, the evidence of the latter. The mistakes committed 
 by surveyors and chain carriers, more particularly in an un- 
 settled country and wilderness, have been so common, and 
 are so generally ackuowledgcd, as to have given rise to a 
 principle of law, as well settled as any Avhich enters into 
 the land titles of this country, which is, that when the mis- 
 take is shown by satisfactory proof, courts of law, as well 
 as courts of equity, have looked beyond the patent to cor- 
 rect it. It will readily be admitted that such evidence should 
 be cautiously received, if it should have a preponderating 
 influence in determining the question of boundary. Subse- 
 quent locators look, in the first instance, to the survey as 
 made and returned, for a demarkation of the tract, with 
 which they must not interfere. But if a mistake is apparent 
 upon the face of the survey, taken in connection with the 
 natural and artificial marks on the ground ; if the reputation 
 of the neighborhood has assigned to the tract of land so 
 surveyed, boundaries diflerent from those delineated on the 
 survey returned, a subsequent location is so far aflected by 
 notice of the real boundaries of the tract on which it would 
 adjoin, that a claimant under it cannot, even in a court of 
 equity, set up his posterior equitable title against the legal 
 or eqiutable titlt3 of the first locator. In short, he cannot 
 assert that he was a purchaser without notice, in the face of 
 strong evidence to the contrary." ^ 
 
 Sec. 114. Declarations of Owners. 
 
 Declarations by the owners of the land, made against their 
 pecuniary or projprietarij interest^ are admissible,^ provided 
 they do not question a title which the declarant had no right 
 to question,^ and under this rule the declarations of one in 
 possession of land, in disparagement of his own title, are 
 
 ' Conn V. Penn, 1 Pet. (U. S.) C. rington, 12 id. 1; Rogers v. Moore, 10 
 
 C. 496. id. 13 ; Norton v. Pettibone, 7 id. 
 
 ^ Putnam v. Fisher, 52 Vt. 191 ; 319; White -w. Long, 24 Pick. (Mass.) 
 
 Evarts v. Young, 52 id. 329 ; Smith 319. 
 
 t). Martin,' 17 Conn. 399 ; Beers v. ^ Parson.s, J., in Putnam v. 
 
 Hawley, 2 id. 467 ; Duning v. Car- Fisher, ante.
 
 31G 
 
 EVIDKNCE. 
 
 [CIIAI'. MM. 
 
 mlmissiljlo in evidence ag:iiii.st him and those c-liiiniing uiukr 
 hiin • but doclanitions; in favor of his own title are inad. 
 nii->il>li'.' Thus, the declaration of a person made upon 
 hmd. while he was in possession thereof under an undisputed 
 elaini of title, that his line extended to a certain boundary, 
 which he pointed out at the time, is aduii.ssil)le in evidence, 
 uftf'r his decra.sr, in favor of those who claim under him, 
 on the trial of a qneslt'on aviaing subsequoitlij coneerninLT the 
 boundarv line of the same tract of land.^ Declarations of 
 persons in possession of jjroperty can only be given in 
 evidence a-s part of the res gestce, or in respect to their 
 interest in the subject-matter,^ and :i party must l)e proved 
 to have been in possession, before his declarations made at 
 the time are admissible as part of the res gestce, and as ex- 
 planatory of the possession.* In an action of ejectment, the 
 admissions of the person occupying the land are incompetent 
 
 ' OspKxl V. Coates, 1 Allen 
 (Ma.ss.), 77; Maxwell 1J. Harrison, 
 s Ga. 01 ; Allien v. Gilmoi-e, 13 Me. 
 17:^ ; P.'abndy »'. Howett, 52 Me. 33 ; 
 W.'bstfT V. Saunders, 4 U. & J. 
 (Mil.) 287; West Cambridge V. Lex- 
 ington, 2 Pick. (Mass.) 53G ; Church 
 •p. Bin-ghardt, 8 id. 327; Niles v. 
 Pat<:h. 13 Gray (Mass.), 254; Hale 
 -p. Silloway, 1 Allen (Mass.), 21 ; 
 Dow P. Jewell, 18 N. H. 340 ; Woods 
 V. IModgett, 18 N. II. 240 ; Spence 
 V. Sinilh, id. .')87; Bell 7'. Woodward, 
 4G N. H. 31.'); Waring ?'. Warren, 
 1 Johns. (N. V.) 340 ; Jackson v. 
 Bard, 4 id. 230 ; Jackson v. Shear- 
 man, G id. 19 ; Jack-son v. Ander- 
 »on. 4 Wend. (N. Y.) 474 ; Podgett 
 V. Lawrence, 10 Paige (N. Y.), 170; 
 Ja<;k.4on v. Cole, 4 Cow. (N. Y.) r)87 ; 
 Pitt,-4 r. Wildf^r, I N. Y. .'•)2.-) ; Gibney 
 «. Marchay. 34 N. Y. 301 ; Bnrlin- 
 gam<- r. Robbin.s, 21 Barb. (N. Y.) 
 327; Il.'i.ster v. Laird, W. & S. 
 (Penn.) 245 ; Sailor v. Hertzogg, 2 
 P.-nn. St. 1 82; Read p. Thompson, 
 5 id. 327 ; St. Clair v. Shale, 9 id. 
 2.'.2 ; Sample r. Robb, 16 id. 305; 
 Alden r. Grove, 18 id. 377 ; Leger 
 
 V. Doyle, 11 Rich. (S. C.) L. 109 ; 
 Wallace v. Wilcox, 27 Tex. 60. 
 
 " Wood V. Foster, 8 Allen (Mass.), 
 24. 
 
 ^ Degraffenreid v. Thomas, 14 
 Ala. C81 ; Andrews v. Fleming, 2 
 Dall. 93 ; Bliss v. Winston, 1 Ala. 
 344 ; Nelson v. Iverson, 17 id. 210 ; 
 Hadden v. Powell, id. 314 ; Periy v. 
 Graham, IS Ala. 822; Thompson v. 
 Drake, 32 Ala. 99; Williams v. 
 Ensign, 4 Conn. 4,")(3 ; Ilillhouse v. 
 Dunning, 7 Conn. 139 ; Daw.son V. 
 Callaway, 18 Ga. 573 ; Westi). Price, 
 2 J. J. Marsh. (Ky.) 380; Young v. 
 Adams, 14 B. Mon. (Ky.) 127; 
 Marcy v. Stone, 8 Cush. (Mass.) 4; 
 Hodgdon v. Shannon, 44 N. H. 572 ; 
 Duffey V. Congregation, etc., 48 
 Penn. St. 46 ; Trotter v. Watson, 6 
 Humph. (Tenn.)509. 
 
 " Ellis V. Janes, 10 Cal. 4.56 ; 
 Thoma,s v. Degraffenreid, 17 Ala. 
 602 ; May v. Jones, 4 Litt. (Ky.) 21; 
 Wliiting V. Bacon, 9 Gray (Mass.), 
 206 ; Tomlin v. Den, 4 Han-. (Del.) 
 76 ; State v. Emory, 6 Jones (N. C.) 
 L. 133 ; Reed v. Dickey, 1 Watts 
 (Penn.), 152.
 
 SEC. 114.] HEARSAY PRIVATE BOUNDARIES. 317 
 
 unless there can be some privity shown between him and the 
 defendant ; and even then are inadmissible if he can be per- 
 sonally called as a witness.^ Where a tenant has made 
 admissions or declarations as to the character and extent of 
 his tenancy, they are admissible against him in a suit between 
 him and his landlord in respect to the possession, no matter 
 to whom they were made. It is not essential that such ad- 
 missions, to be available, should be made to the landlord or 
 his agent.^ The declaration of a deceased tenant in common 
 of land, that he had made a verbal division with his co-tenant, 
 and subsequently that he had received from his co-tenant a 
 deed of division, was held to be admissible in evidence asfainst 
 his heirs, in support of the presumption that he gave a cor- 
 responding deed to his co-tenant.^ So declarations of an 
 occupant of land, while in possession, that he was only a 
 tenant of another, are competent evidence in favor of the 
 latter against a third person, after the death of the occuiDant, 
 but not before.* 
 
 Declarations made by an owner in his own favor are not ad- 
 missible to show the location of a boundary, Init are for the 
 purposes of showing non-acquiescence in U different line or 
 boundary.^ The same rule as to Its mota prevails in reference 
 
 ' Hanley v. Erskine, 19 111. 265. of a small amount of land between 
 
 ' Secor V. Pestana, 37 111. 525 ; them, and that the line thus run was 
 
 Hamilton v. Paine, 17 Me. 219 ; acquiesced in by him and Anson 
 
 Williams v. Mayor, 6 H. & J. (Md.) Evarts until the death of Anson 
 
 529. Evarts, in 1874, and was the line to 
 
 ' White u.Loring, 24 Pick. (Mass.) which he claimed. This testimony 
 
 319. was uncontradicted, except by the 
 
 * Currier v. Gale, 14 Gray declarations of Anson Evarts, made 
 (Mass.), 504 ; Rand v. Dodge, 17 N. within the last twelve or fifteen 
 H- 343. years, that the 'stone comer' was 
 
 * In Young v. Evarts, ante, sucn the corner of his land, and by a dec- 
 declarations were admitted to show laration of the plaintiff, made nine- 
 non-acquiescence, but not to prove teen years before the trial, in re- 
 the true line, the declarant being gard to the location of the end of a 
 interested. The court said: "The wall built by him, running at right 
 plaintiff's testimony tended to show angles with the line. The declara- 
 that he and his brother Anson and tions of Anson Evarts were allowed 
 father Reuben, in 1831, procured a to be shown, against the exception 
 surveyor, Judge Beeman, to run the of the plaintiff, and were allowed 
 line — not on the line between the by the court to be used as tending 
 lots — so that there was an exchange to show where the line between them
 
 ai6 
 
 EVIDENCE. 
 
 [ClI. 
 
 \V. VIII. 
 
 to Ihb class of declaiatioiis as prevails in refereiic-e to decla- 
 
 in fact w»u«. In {giving, or allowing- 
 to be {:iven, to this »niilence this 
 Bcupe anil ellV-ct, we think tin; County 
 Court iM-rrd. A party is not allowed 
 to show his own .Icclarations or the 
 ihM-larations of those through whom 
 ho claims title, in his own favor, 
 unless such declarations accompany 
 and ^ve charactei- to some act 
 nffectint,' his title, and so become a 
 part of the res gestOB. This subject 
 had freiiueutly received the con- 
 sideration of this court. In Wood 
 r. Willard, 30 Vt. 82, it wa.s held 
 that the declaration of the grantor 
 ad to where his line was, made at 
 the time he sold and conveyed the 
 premises to the plaintiff, and while 
 upon the premises jwinting out the 
 line, were not admissible. On the 
 other hand, in Kimball v. Ladd, 42 
 Yt. 747 ; Noble v. Sylvester, id. 146 ; 
 P.-rkins v. Blood. 36 id. 273, it is 
 hfld that the declaration of a party 
 or of a person through whom the 
 party deiives title, made while ex- 
 frcising a right or easement, and 
 tending to show that he claimed to 
 exercise it in his own right, or that 
 he had not abandoned his prior pos- 
 session or right to a piece of prop- 
 f'Hy, are admissible for such i)ur- 
 po.se only. Under this rule the dec- 
 clarations of Anson Evarts allowed 
 to be shown were a<lmissible to 
 rebut the testimony of the plaintiff 
 t<inding to show that at the several 
 times when they were made, Anson 
 Evarts was acquiescing in the line 
 claimed by the plaintiflF, and only for 
 such purpose. They were not ad- 
 misail>le for the pui-pose of showing 
 where the Beeman line wa.s, nor 
 where the true line between him 
 an<l the plaintiff then wa.s ; and on 
 the rpiestion of acquiescence they 
 should be confine<l strictly to the 
 periods of time at which they were 
 rfST>f(:tively made, and not be al- 
 
 lowed as tending to show that he 
 had not, from 1«31 to the time of 
 making such declarations, acqui- 
 esced in the line, as the plaintiff's 
 testimony tended to show. Acqui- 
 escence is the state of a party's 
 mind regarding a particular subject 
 or thing, and his declarations on that 
 subject or thing are the indices of 
 his state of mind thereon at the 
 times they are respectively made. 
 
 "These declarations, although 
 Anson Evarts has deceased, do not 
 fall within the rule established in 
 Wood V. Willard, 37 Vt. 377 ; Pow- 
 ei-s V. Silsby, 41 id. 288, and some 
 other more recent cases, allowing 
 heai-say testimony, or declarations 
 in regard to ancient boundaries be- 
 tween the estates of private indi- 
 \'iduals. The rule for the admis- 
 sion of such testimony, as expressed 
 by PiERPOiNT, C. J., in Wood t). 
 Willard, mpra, is, ' that the declara- 
 tions of deceased persons who had 
 actual knowledge as to the location 
 of such boundaries, or who, from 
 their connection with the propei-ty 
 itself, or their situation and experi- 
 ence in regard to such boundaries 
 and the surveys thereof, had par- 
 ticular means of knowledge, so that 
 it may fairly be inferred that they 
 had actual knowledge of the same, 
 inade at a time when they had no in- 
 terest to misreinesent, * * * may 
 be received as to the location of 
 such boundary, when from lapse of 
 time thei-e can be no reasonable 
 probability that e\'idence can be 
 obtained from those who had actual 
 knowledge on the subject.' It is an 
 important qualification that the de- 
 clarant, at the time of making the 
 declaration, should have no interest 
 to misrepresent. Anson Evarts 
 making a claim in his own favor was 
 not thus disinterested. Whether the 
 transaction in regard to the Beeman
 
 SEC. 114. 1 
 
 HEARSAY — PRIVATE BOUNDARIES. 
 
 319 
 
 rations relating to matters of general or public interest; 
 
 line was of such antiquity as to 
 allow this class of testimony for the 
 establishment of is location, is not 
 admitted noi' decided, as this testi- 
 mony for this purpose is held inad- 
 missible, on the ground that Anson 
 Evarts, when he made the declara- 
 tions, was interested in having the 
 stone corner established as his cor- 
 ner." 
 
 The following is an abstract of a 
 portion of Hunicutt v. Peyton, Unit- 
 ed States Supi'eme Court, February, 
 1881 : A witness called to prove the 
 location of private lands was allowed 
 to testify that one M., a surveyor, 
 had, while absent from the lands in 
 question, told him the location and 
 direction of certain boundary lines 
 which M. said to witness he (M.) 
 had surveyed, and witness was al- 
 lowed to state what the declarations 
 of M. were. Held error. ElUcott 
 11. Pearl, 10 Pet. (U. S.) 412 ; Bart- 
 lett V. Emerson, 7 Gray (Mass.), 
 174; 5 Met. (Mass.) 223; Long v. 
 Cotton, 116 Mass. 414 ; Bender v. 
 Pierce, 27 Penn. St. 335. The con- 
 clusion to which a great majority of 
 the decisions of State courts lead 
 upon this subject is this : In ques- 
 tions of private boundary, declara- 
 tions of particular facts, as distin- 
 guished from reputation, made by 
 deceased persons, are not admis- 
 sible, unless they were made by 
 persons shown to have had knowl- 
 edge of that whereof they spoke, or 
 persons on the land, or in possession 
 of it when the declarations were 
 made. To be evidence, they must 
 have been made when the declarant 
 was pointing out or marking the 
 boundaries or discharging some 
 duties i-elating thereto. A declara- 
 tion which is a mere recital of some- 
 thing past is not an exception to the 
 rule that excludes hearsay evidence. 
 
 In Long V. Cotton, 116 Mass. 114, 
 
 the court said : " The declarations of 
 deceased persons respecting bound- 
 aries are received as evidence as an 
 exception to the rule which rejects 
 hearsay testimony. In most of the 
 decided cases it is held that the 
 declaration should ajjpear to have 
 been made in disparagement of title, 
 or against the interest of the party 
 making it ; but in Daggett i\ Shaw, 
 5 Met. 223, it is said that the rule 
 as practiced in this commonwealth 
 is not so restricted, and that declara- 
 tions of ancient persons, made while 
 in possession of land owned by them, 
 pointing out their boundai-ies on the 
 land itself, are admissible as evi- 
 dence when nothing appears to show 
 that they are interested to misrep- 
 resent, and it need not apj^ear 
 afhrmatively that the declaration 
 was made in restriction of or against 
 their own rights. And in Bartlett 
 V. Emerson, 7 Gray, 174, it is held 
 that to be admissible, such declara- 
 tions must have been made by per- 
 sons now deceased, while in posses- 
 sion of land owned by them, and in 
 the act of pointing out their bound- 
 aries, with respect to such bound- 
 aries, and when nothing appears to 
 show an interest to deceive or mis- 
 represent. Ware v. Brookhouse, 7 
 Gray (Mass.), 554 ; Flagg v. Mason, 
 8 id. 556. 
 
 " The declarations offered and 
 rejected at the ti-ial do not come 
 within the exception thus defined to 
 the rule by which hearsay is ex- 
 cluded. The decisive objection to 
 their competency is that they do not 
 appear to have been made while in 
 the act of jiointing out the bound- 
 aries of the declarant's land. This 
 is an element which cannot be dis- 
 regarded, especially when the ques- 
 tion is one of private boundary. 
 The declaration derives its force as 
 evidence from the fact that it ac-
 
 320 
 
 EVIDENCE. 
 
 [CIIAP. VIII. 
 
 theivtbre rftorcnce is ma(l<' lo that chapter for the rules in 
 that respect. 
 
 roinpiuiit's an act which it <iualitics 
 or Kn\ .'s chanu-U'r to. The tlechira- 
 lion is tluMi a i)art of the act. With- 
 out siu'h accompanying act, the (h'c- 
 hirntion is mei*e narrative, liable 
 to \w. njisumlei-Htood or misapplied, 
 ami open to the objections which 
 prt^vail again»t hearsjiy evi<lence. 
 
 ••The declaration rejected iloes 
 not apjwar to have been offered for 
 the purpo.se of establishing' a bound- 
 ary by trmlitionary evidence or rep- 
 utation. Such evidence has some- 
 times been said by American courts 
 to be admi.ssible ; and in the cases 
 from New H;impshire, cited by the 
 ilefendant, it seems to be held that 
 declarations of deceased persons, 
 
 who, from their situation, appear to 
 have the means of knowledge, and 
 who liave no interest to misrepresent 
 the facts, are admissible to establish 
 private boundaries, although not 
 made on the land. Smith v. Forrest, 
 49 N. II. 230, 237 ; Great Falls Co. 
 V. Worster, l.'i id. 412, 437. But by 
 the current of authority and upon 
 the better reason, such evidence is 
 inadmissible for the purpose of prov- 
 ing the boundary of a private es- 
 tate, where such boundary is not 
 identical with another of a public or 
 quasi public nature. 1 Greenl. Ev. 
 § 145 ; 1 Phil. Ev. (N. Y. ed. 1849), 
 241, 242; Cowen & Hill's Notes; 
 Hall V. Mayo, 97 Mass. 416."
 
 CHAPTER IX. 
 
 DYING DECLARATIONS. 
 
 SECTION. 
 
 115. When Admissible. 
 
 116. To what Matters Admissible. 
 
 117. Declarations must be Complete. 
 
 118. Considerations which should Control as to Admission of. 
 
 Sec. 115. When Admissible. 
 
 Another exception to the rule excluding hearsay evidence, 
 which, however, is of more importance in criminal, than in 
 civil cases, is made in favor of the declarations of a deceased 
 person, made in extremis, as to the cause of his death and the 
 person who inflicted the fatal wound ; in criminal cases only 
 where the death of the deceased is the subject of the charge, 
 and the circumstances of the death are the subject of the dying^ 
 declarations, and never, under any circumstances, in civil 
 cases ; ' and this rule is held not to impugn the constitutional 
 right of the accused to be confronted by the witnesses against 
 him, as the constitution does not alter the rules of evidence,, 
 but leaves it to the law to determine what a witness, when 
 
 ' State V. Quick, 15 Rich. (S. C.) Arnold, 13 Ired. (N. C.)L. 184; State 
 
 342 ; Thompson v. State, 24 Ga. 297; v. Thawley, 4 Har. (Del.) 562 ; Dunn 
 
 People V. Vernon, 35 Cal. 49 ; State v. State, 2 Ark. 229 ; Goodall v. 
 
 15. Reed, 5Phila. (Penn.) 528; State State, 1 Oregon, 333; Cone v. 
 
 V. Brunetto, 13 La. An. 45 ; Stately. Cooper, 5 Allen (Mass.), 495. The 
 
 Nash, 7Iowa, 347; Wulston-y. Com., dying declarations of a person 
 
 16 B. Mon. (Ky.) 15 ; McDaniel v. fatally injured by the negligence of 
 
 State, 16 Miss. 401 ; Com. v. Casey, another, as to the facts attending 
 
 11 Cush. (Mass.) 417; Burrell ?». the injury, ai-e not admissible against 
 
 State, 18 Tex. 713 ; State v. Pall, 1 such person in a civil action brought 
 
 Hawks (N. C), 442; Nelson v. State, to recover damages for the injury. 
 
 7 Humph. (Tenn.) 542; Moore v. Daily v. N. Y., &c., R. R. Co., 32 
 State, 12 Ala. 764 ; Robbins v. State, Conn. 356. See also Wilson v.. 
 
 8 Ohio St. 131 ; Bull's Case, 14 Boerem, 15 John. (N. Y.) 286 ; R. v. 
 Gratt. (Va.) 613; State v. Center, Mead, 2 B. & C. 608; 1 East's P. 
 35 Vt. 378; People v. Knickerbocker, C. 353 ; Waldele v. N. Y. Central 
 1 Parker Cr. (N. Y.) 302 ; State v. R. R. Co., 61 How. Pr. (N. Y.) 350. 
 
 21
 
 322 
 
 EVIDENCE. 
 
 [CII. 
 
 \P IX. 
 
 confiontod, shull Ik' uUouod to state :i.s evidence' But in 
 order to niuke such declarations adinis-sible, they must liave 
 liei'u made while the deceased was acluall// in danger of death, 
 and under (he settled conviction that he 2vas about to die, and 
 that death did actuaUy ensue,"- and the question as to whether 
 these elements existed is to be determined in view of all the 
 circumstances, as the nature of the wound, the declarations of 
 the deerased in Ihat regard, and the sense of impending death 
 incident to his condition."- Thus, in an Alabauja case,^ the 
 deccitsed wa.s poisoned on Sunday, and from that time until 
 Tuesday evening, when she died, suffered severely from a 
 binning i)ain in her stomach and bowels. On Sunday night, on 
 Monday, and on Tuesday, just before she made a declaration, 
 she used such exi)ressions as, "I cannot stay here, I must go — 
 good people, I am gone," and her medical attendant con- 
 sidered her in extremis from Tuesday morning until she died. 
 Between nine o'clock A. M. and noon on Tuesday she asked 
 111 r iiiedical attendant if he could help her, to which he 
 replied, he thought he could. It was held that the inquiry 
 and reply, taken in comiection with such strong evidences 
 
 ' Walston V. Commonwealth, 16 
 B. Mon. (Ky.) 1.5; CarapJ)ell'D. State, 
 
 1 1 Ga. 353 ; State v. Price, 6 La. 
 Ann. <)91 ; Commonwealths. Carey, 
 
 12 Ciish. (Mass.) 246; Burrell V. 
 State. 18 Tex. 713; People tj. Glenn, 
 10 Cal. 32 ; State v. Nash, 7 Iowa, 
 347 ; Woodsides v. State, 3 Miss, 
 •if).'). 
 
 * United States v. Woods, Cranch 
 (U. S. C. C.) 484 ; United States v. 
 Veitfh. 1 id. 115; Dunn v. State, 2 
 Pick. (Mass.) 229 ; People v. Lee, 17 
 Cal. 76; People v. Ybana, id. 166 ; 
 Peojiltt ?). Sanchez, 24 Cal. 17 ; 
 Walston V. Commonwealth, 16 B. 
 Mon. (Ky.) 15 ; Brown v. State, 32 
 Miss. 433 ; People v. Knickerbocker, 
 1 Park. (N. Y.) Cr. 302; Mont- 
 gomery V. State, 11 Ohio, 424 ; Rob- 
 bin.s V. State, 8 Ohio St. 131 ; Brake- 
 field V. State. 1 Sneed (Tenn.). 215 ; 
 Nelson v. State, 7 Humph. (Tenn.) 
 
 542 ; Lewis v. State, 17 Miss. 115 ; 
 Smith t). State, 9 Humph. (Tenn.) 9 ; 
 Logan V. State, id. 24 ; State v. 
 Center, 35 Vt. 378 ; Bull's Case, 14 
 Gratt. (Va.) 613. Lord Dknman, in 
 the Sussex Peerage Case, 11 CI. & 
 F. 108, laid down the rule as follows: 
 " With regai'd to declarations made 
 by persons in extremis, supposing all 
 necessary mattei"S concurred, such 
 as actual danger, death following it 
 and a full apprehension, at the time, 
 of the danger and of death, such 
 declarations can be received in evi- 
 dence, and all these things must 
 concur to render such declarations 
 admissible. Such evidence, how- 
 ever, ought to be received with 
 caution, because it is subject to re- 
 cross-examination." 
 
 ^ Sullivan v. Cone, 93 Penn. St. 
 284. 
 
 * Johnson v. State, 17 Ala. 618.
 
 ^EC. 115.] DYING DECLARATIONS. 323 
 
 of a sense of im2)eiiding death, did not prove anythino- be- 
 yond the hope of present ease or relief, and were insufficient 
 to exclude the declaration of the deceased. In another case, ^ 
 on the day on which the mortal blow was given, the witness 
 said to the deceased that his deposition ought to be taken, as, 
 in the opinion of the witness, he must inevitably die before 
 morning. The deceased replied that he thought so too, 
 and afterwards exclaimed, "O Lord, I shall die soon!" 
 His dechirations were reduced to writing, read over to him 
 twice, and signed by him. On the evening previous his 
 physician had held out to him some hopes of recovery, but 
 told him his chance was bad. The deceased lived, however, 
 some ten days after. It was held that his declarations Avere 
 admissible as dying declarations. In a North Carolina case,2 
 the deceased was cut Avith a knife into the coats of his stomach, 
 was very weak from the loss of l)lood, and said that he must 
 die, and did die, two days afterwards, of the wound he had 
 received. It was hold that his account, in a conversation of 
 short duration, as to the manner in Avhich the conflict beo-an 
 and was continued between him and the prisoner, Avas ad- 
 missible as dying declarations, although the Avitness could 
 not say Avhether the opinion expressed by the deceased that 
 he nmst die Avas before or after the narration of the facts, 
 there being no evidence that during the time of this short 
 conversation the condition of the deceased Avas materially 
 changed. It is not necessary that the declarations should 
 have been made in words by the deceased ; it is sufficient 
 if they are made by signs in response to inquiries put by a 
 person present, and the jury will give such Aveight thereto 
 as they deem them entitled to in vicAV of all the circum- 
 stances. This is Avell illustrated by a Massachusetts case.^ 
 In that case, T., being at the point of death, and conscious of 
 her condition, Ijut unable to speak articulately, in conse- 
 quence of wounds inflicted upon her head, Avas asked whether 
 it was C. who inflicted the Avounds, and, if so, she was re- 
 quested to squeeze the hand of the person asking the question. 
 
 ' McDaniel v. State, 16 Miss. 401. = Com. v. Casey, 11 Cush. (Mass.) 
 '^ State V. Pearce, 1 Jones (N. C.) 417. 
 I. 251.
 
 :\-2l EVIDENCE. [<IIA1'. IX. . 
 
 Tlu'iciipon she squeezed the luiiid of the person making the 
 in(]uiiy. It was liokl th.it under all the eireunistances of the 
 ca.s«» there w:is proper evidence against C. for the consideration 
 of the jury, they being the sole judges of its credibility, and 
 of the I'lUrt to he given to it. But declarations so made arc 
 not admift.sihle,' unless it clearly a])pears that the deceased 
 undei-stood the inquiries clearly as well as the nature of his 
 responses thereto. In the case last cited, an attorney, 
 being present on the night when one who had witnessed a 
 nunder was d3ing, propounded questions to him which he 
 Irictl to answer, but could not, and his attendant friends then 
 '• explained the (juestions to him, and made the answers, to 
 Avhich he assented only by nodding his head." The statemeut 
 consisting of the answers thus made was, when finished, 
 " read over to him l)y the attorney slowly and distinctly, 
 and he signified his assent thereto by nodding his head ; " 
 " he spoke but a few words afterwards, and had frequently 
 to be aioused : and seemed, while the statement was beinir 
 read to him, to be in a stupor." It was held that this was 
 not admissible evidence. Nor are such declarations admis- 
 sible if the deceased entertained any, eve7i slight^ hopes of 
 recover\-.2 Thus, in the case last cited, forty-eight hours 
 after the shooting, the deceased clearly thought that he could 
 not recover, and acted as if he was not to live but a short 
 time, though the surgeons, to soothe him, assured him that he 
 would live, and one of them thought he did entertain s(mie 
 hopes of his recovery, and it rather appeared that he did 
 entertain some hopes. His declarations Avere not admitted. ^ 
 In a California case ^ the court recognized this rule and 
 applied it in a case where, in her dying statement, the de- 
 ceased said : " Believing I am very near death, and realizing 
 that / may not recover, etc." From this expression the court 
 held that it was clear that the deceased entertained slight 
 hopes of i-ecovery, and, although she in fact died within an 
 hour after making the statement, rejected it. " If it shall 
 appear," said Ross, J., using the language of the court in a 
 
 ' McHngh V. State, 31 Ala. .318. ^ People v. Robinson, 2 Parker's 
 
 ' State V. Na.sh, 7 Iowa, 287. Cr. Rep. (N. Y.) 235. 
 
 * People u Hodg-don, 55 Cal. 72.
 
 SEC. 117.] DYING DECLARATIONS. 325 
 
 previous case,' "in any mode, that there was a hoj^e of re- 
 covery, however faint it may have been, still lingering in his 
 breast, * * his statement cannot be received." ^ But the 
 fact that the deceased does not state in his declaration that 
 he makes it in immediate expectation of death, does not 
 affect its admissibility, if it contains nothing to show that he 
 entertained any hope of recovery, and it reasonably appears 
 that he did not entertain any such hope.^ 
 
 Sec. 116. To what Matters Admissible. 
 
 Another important qualification of the rule is to be borne 
 in mind, and that is, that such declarations are only admissi- 
 ble as to matters about which the deceased ivould have been 
 cmnpetent to testify, if sioorn to in the cause, and, conse- 
 quently, such declarations should relate to facts, and not to 
 the opinion or belief of the deceased.^ But the fact that the 
 examination was not conducted in the manner in which it 
 would have been conducted in court does not affect the ad- 
 missibility of the statement, but may affect its credibility.^ 
 
 Sec. 117. Declaration must be complete. 
 
 Another important qualitication to the rule is, that the 
 declaration must be com/plete in itself, and if it appears that 
 the deceased intended to qualify his statement, but was pre- 
 vented from doing so from any cause, it will not be admis- 
 sible.^ When the declaration has been committed to 
 
 * People V. Sanchez, 24 Cal, 24. weeks before the injury was inflicted, 
 "^ State V. Wilson, 24 Kan. 189. was not admissible, but the remain- 
 ^ State V. Wilson, 24 Kan. 189 ; der of such declai-ations are admis- 
 
 36 Am. Rep. 257. And in this case sible if otherwise not objectionable, 
 
 such declarations were held admis- Jones v. State, 71 Ind. 66 ; Brother- 
 
 sible, although the deceased had ton v. People, 75 N. Y. 139. In 
 
 previously given his testimony upon State v. Wood, 53 Vt. 560, to a ques- 
 
 the preliminary examination of the tion, "Had she threatened to injure 
 
 respondent. Dumas v. State, 62 you before?" the deceased re- 
 
 ^^- ^^- sponded, " Yes, she had threatened a 
 
 * McPherson v. State, 22 Ga. 478 ; thousand times to kill me, before," 
 Whitley v. State, 38 Ga. 50 ; R. v. and such statement was held inad- 
 Sellars, Car., C. & L. 233. In Mer- missible. 
 
 rill V. State, 58 Miss. 65, it was held ^ Com. v. Vass, 3 Leigh (Va.), 
 
 that the portion of a declaration of 786 ; Rex v. Fagent, 7 C. & P. 238. . 
 
 a deceased person which related to ® Com. v. Vass, ante, 
 threats made by the respondent two
 
 32G KVIDKNCE. [CIIAP. IX. 
 
 writ in*' at the tiiiK' it w:is niudc, it must bo produced or 
 acoouiited for, and neillur a copy nor parol evidence can in 
 the tirst instance be admit ted to supply the omission.^ But 
 where several declarations were made, only one of which 
 h:us been connnitted to writing, all may be proved f and if 
 the dcpositii)n of the deceased has been taken under the 
 stilt ute, but for any cause is inadmissilde as such, it is still, 
 if made in extremis, admissible as a dying dc'claration.s 
 Such declarations are admissible as well for as against the 
 respondent.' But in Illinois ^ it is held that such declara- 
 tions, not a part of the res gestae, are not admissible in ex- 
 culpation of the accused ; but such a doctrine would be very 
 unjust,^ and it is believed that the Illinois cases cannot really 
 be said to go further than to hold what has already been 
 stated to l>e the I'ule, that such declarations are not udmissi- 
 l)lo when they relate to opinions rather than facts, as was the 
 case in both of the cases cited from that State. 
 
 Sec. 118. Considerations which should Control as to Admission of. 
 
 It is Ukj universal judgment of the courts, text-writers, 
 and all thinking men, that this class of evidence is to be 
 received with great caution, and, except where the circum- 
 stances were such as to i-ender it next to im[)ossible that the 
 deceased could be mistaken as to the criminating facts stated, 
 juries should scan the statement with great care, especially 
 where there is evidence tending to show that the deceased 
 was mistaken, for it is to be remembered that while the 
 deceased made the statement under the apprehension of 
 certain death, yet the respondent has not had the privilege 
 of cross-examinino- the witness, or testing the real foundation 
 of the deceased's belief as to his guilt, and that where the 
 witness has not a deep sense of accountability to his Maker, 
 and an enlightened conscience, the passion of anger, and 
 feelings of revenge, or, in the case of nnitual conflict, the 
 
 ' Taylor on Ev. § 506. People v. Knapp, 20 Mich. 112 ; 
 
 ' Kirby v. State. 8 Tex. App. 1. Moore v. State, 12 Ala. 274. 
 
 ' Rox V. Woodcock, 1 Lea. C. C. " Maeck ?). Peoplo, 100 111. 242 ; 
 
 .WJ. Adams r. People, 47 id. 376. 
 
 ♦ Rex V. Scaife, 2 Lewis C. C. 150; ° People v. Knapp, ante.
 
 SEC. 118.] DYING DECLARATIONS. 327 
 
 natural desire of screening his own misconduct, may affect 
 the truth and accuracy of his statements, and give a color 
 to the transaction which, had further investigation been 
 attainable, might have been proved to be incorrect. Moreover, 
 the pai'ticulars of the violence to which the deceased has 
 spoken are 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 omission of facts essentially 
 important to the completeness and truth of the narrative.' 
 
 ' Jackson v. Kniflfen, 2 John. (N. be observed in the use of this kind 
 
 Y.) 35, 36, per Livingston, J. ; R. v. of evidence, in 2 Poth. Obi. 255 
 
 Ashton, 2 Lew. C. C. 147, pei- Alder- (293) ; 2 St. Ev. 367, and 1 Ph. Ev. 
 
 SON, B. See also Mr. Evans' 292. 
 observations on the great caution to
 
 CHAPTER X. 
 
 DECLARATIONS BY DECEASED PERSONS AGAINST INTEREST. 
 
 ECTION. 
 
 119. General Rule. 
 
 liiO Kinds of Declarations Admissible. 
 
 liil. Conditions Precedent to the Admission of. 
 
 122. Entries in Private Books. 
 
 123. Exceptions to the Rule. 
 
 124. Illu.stration of the Application of the Exception. 
 
 125. Pei-son making, must be dead. 
 
 126. May be used as Evidence of Collateral and Independent 
 
 Matters, when. 
 
 127. Similarity of Rule as to Entries made by Person in Office, and 
 
 by Deceased Person. 
 
 128. Where Entries are made by Agents in due Course of Business. 
 
 Sec. 119. General Rule. 
 
 All exception is also made to the rule in reference to the 
 jidiiiissibility of hearsay evidence in favor of declarations 
 and entries made by deceased persons against their proprie- 
 tary or pecuniary interest, unless it can be shown that they 
 were made with a sinister motive.' This exception is founded 
 upon the presimiption that, where declarations are made 
 under these circumstances, they are entitled to credit, because 
 it is supi)oscd that a person's regard for his own interest is 
 8uch JUS to oi)eratc as a guaranty against his prejudicing him- 
 cjclf by any erroneous statement, and that he would not be 
 likely frandidenfJy to make a statement which would be 
 prejudicial thereto.* 
 
 ' Taylor on Ev. § 4t;4 ; Shoi-t v. Thomas v. Degraffenreid, 17 Ala. 
 
 Lee, 2 Jac. & W. 464 ; Higham v. 602 ; Smith v. Maine, 25 Barb. (N. 
 
 Ridg^vay. 10 East, 109; Sussex Y.) 33 ; Harns t). Clark, 3 N. Y. 93; 
 
 Peerage Qase, 11 CI. & F. 103; St. Toat v. Finch, 1 Taunt. 141 ; White 
 
 Clair's Heirs v. Shale, 20 Penn. St. v. Chonteau, 10 Barb. (N. Y.) 202; 
 
 10.-); Highley v. Bidwell, 9 Conn. Middleton v. Melton, 10 B. & C. 
 
 447; Pike v. Hays, 14 N. H. 19; 317; Reece ?>. Robinson, 15 East, 34. 
 Smith r. Powers. 15 id. 546 ; Pearce * Phillips on Ev. 304. 
 V. .Jenkins, 10 Ired. (N. C.) 355 ;
 
 SEC. 121.] DECLARATIONS BY DECEASED PERSONS. 32'J 
 
 Sec. 120. Kinds of Declarations Admitted. 
 
 Verbal declarations as well as written are admissible when 
 they are clearly against the interest of the declarant, although, 
 as a matter of course, they are entitled to less weight than 
 those which are in writing, because they are made with less 
 deliberation and are more liable to be erroneously remem- 
 bered.' In a North Carolina case^ it was held that the 
 declarations of a deceased person against hi« interest, such 
 as a verbal statement that he was at a given time indebted to 
 another, were held admissible, and in the cases cited in the 
 previous note, such verbal declarations were admitted without 
 objections. In an English case ^ the question as to the 
 admissil)iUty of such evidence was much discussed, but was 
 not decided ; Init in many cases in our courts such verbal 
 declarations, where clearly against the interest of the declar- 
 ant, have been admitted,'* and, subject to the qualifications 
 before stated, there would seem to be no o;ood oround of ob- 
 jection thereto. 
 
 Sec. 121. Conditions Precedent to the Admission of such E\'idence. 
 
 In order to render declarations against interest admissible 
 — except in suits to which the declarant is a party — it must 
 first be shoivn that he is dead ; ^ and the exception does not 
 
 ^ Pearce -y. Jackson, 10 Ired. (N. v. Foster, 33 N. K. 379 ; Van Blar- 
 
 C.) 355 ; IvattJ. Finch, ante; Sussex com v. Kip, 2G N. J. L. 351 ; Den- 
 
 Peerag-e Case, ante; Davies v. ton v. Perry, 5 Vt. 383. 
 Pierce, 2 T. R. 53 ; Sti-ode v. Win- ^ Phillips v. Cole, 10 Ad. & El. 
 
 Chester, 1 Dick. 397 ; Hallaway v. lOG ; Smith v. Whitingham, 6 C. & 
 
 Rakes, cited 2 T. R. 55. P. 78. In Spangs v. Brown, 9 B. & 
 
 * Pearce v. Jackson, ante. C. 935, an action for trover was 
 ' Furdson v. Cloggett, 10 M. & brought for goods which had been 
 
 W- 572. distrained, and the plaintiff insisted 
 
 * Arthur ■». Gale, 38 Ala. 259 ; that he was the tenant of one John 
 Kneeland w "Wilson, 12 Cal. 241 ; Brown, and not of the defendant ; 
 Bollo V. Navarro, 33 Cal. 459 ; Settle and to establish this fact, shew 
 n. Alison, 8 Ga. 301 ; Waggoner v.. that he had always paid the rent to 
 Cooley, 17 III. 239 ; Renwick v. John Brown. The defendant, to 
 Renwick, 9 Rich. (S. C.) 50 ; Cavin show that John Brown only acted as 
 ■y. Smith, 24 Mo. 22 ; Jacks v. Hal- his agent, offered the account of 
 low, 14 B. Mon. (Ky.) 133 ; Keener payments rendered by John Brown 
 V. Kauff"man, 16 Md. 296 ; Dicker- to him. It was held that, John 
 son V. Chrisman, 28 Mo. 134 ; Morrill being alive, he should be called, and
 
 330 
 
 EVIDENCE. 
 
 [chap. X. 
 
 apply, even though the dechinint has absconded or his whcre- 
 al)oiits are unknown, or from any cause the parly is unable 
 to prodiui' him.' It was at one time supposed that it nuist 
 als») appear that the declarant had a competent or peculiar 
 knowledire of the matters to which the declaration related ;2 
 but the later and l)etter doctrine seems to be that it is not 
 necexsary that the declarant should have made the statement as 
 of his oicnknowledr/e, but that the absence of such knowledge 
 adeets the weight and not the admissibility of the evidence.' 
 ]t is also indispensable that tJie statement or entry shoxdd he 
 against the projn-ietarij or pecuniary interest of the declarant.*' 
 
 the account was i-cjected. "Warner 
 V. Price, 3 Wend. (N. Y.) 397 ; Cut- 
 bush V. Gin)ert, 4 S. & R. (Ponn.) 
 551 ; Cluggage v. Swan, 4 Binn. 
 (Penn.) 150. 
 
 ' Stephen V. Gwenap, 1 M. & R. 
 120; Brewster 7\ Doane, 2 Hill (N. 
 Y.), 537 ; Moore v. Andrews, 5 Port. 
 (Ala.) 107. But in Pennsylvania 
 ul >sence from the State has been held 
 equivalent to death. Atton v. Berg- 
 haus, 8 Watts (Penn.), 77; Crouse 
 V. Miller, 10 S. & R. (Penn.) 155. 
 And in Ma.'jsachusetts insanity has 
 been held to be ec^uivalent to death. 
 Union Bank v. Knapp, 3 Pick. 
 (Mass.) 30 ; Holbrookt). Gar, G Cash. 
 (Mass.) 21(j. And in South Carolina 
 absence from the State seems to lie 
 sufficient to let in proof of this class 
 on the hajidwriting' being proved. 
 Elms V. Che vis, 2 McCoi-d (S. C), 
 349. 
 
 * Sus.'iex Peerage Case, avte; Bar- 
 ker V. Kay, 2 Riiss. 76 ; Higham v. 
 Ri<lg^vay, 10 Ea.st, 122 ; Short v. 
 Lee, 2 J. & W. 475. 
 
 ' Crea.se v. Barrett, 1 C, M. & R. 
 925. 
 
 * Glynn v. Bank of England, 2 
 Ves. Sr, 38; Roe v. Rawlings, 7 
 East, 290 ; Gleadow v. Atkin, 1 C. 
 & M. 424 ; Bej-kley Peerage Case, 
 ante; Sussex Peei-age Csuse, ante; 
 Daves v. Lloyd, 1 C. & K. 276. It 
 
 is not enough that the deceased was 
 in a situation to know the facts, and 
 if his proprietary or pecimiary in- 
 terests are not affected, his entries 
 or declarations are not admissible. 
 Thus, in a Connecticut case, Abel v. 
 Fitch, 20 Conn. 90, in which, in a 
 controversy relative to the right of 
 the defendant to maintain a dam at 
 a certain height, the defendant 
 offered in evidence a letter from one 
 Hopkins (then deceased), who, at 
 the time when the dam was raised, 
 was in the defendant's employ as a 
 miller, in which he stated the facts 
 i-elative to the raising of the dam, 
 as he understood them. The court 
 rejected the evidence, and upon 
 appeal this ruling was sustained, 
 Ellsworth, .1., saying: "It is 
 nothing more than the opinion of a 
 deceased man, given three years 
 after this dam was built, as to what 
 was its height, he then being miller. 
 * * * Doubtless enti'ies and admis- 
 sions of deceased peojile are in some 
 cases admissible, but the evidence 
 now offered does not belong to that 
 class. Entries by persons, since 
 deceased, ha%'ing full and peculiar 
 means of knowledge, made at the 
 time, in the regular course of businesSr 
 in the usual and jiroper jilace and 
 manner, especially if in the dis- 
 charge of one's duty, are admissible
 
 SEC. 121. J DECLARATIONS BY DECEASED PERSONS. 331 
 
 It is not enough that the statements affect the declarant 
 injuriously ; they mast also affect Jus proprietary or pecuniary 
 interest^ or they are not admissible. Thus, in the Sussex 
 Peerage Case/ in order to prove the marriage of the Duke of 
 Sussex and Lady Augusta Murray, statements made by the 
 clergyman who had married them at Rome, since deceased, 
 were offered on the ground that they were clearly against 
 his interest, because they related to an act whicJt rendered Jiim 
 liable to prosecution, while living, or which, at least, he 
 believed to be illegal. This evidence was rejected. Lord 
 Lyndhurst saying : "It is not true that the declarations of 
 deceased persons are in all circumstances receivable in evi- 
 dence, when in some way or other they might injuriously 
 affect the interest of the party making them. Nor is it true 
 that, because, while living, a party would be excused from 
 answering to certain facts, his declarations as to those facts 
 become evidence after his death. These are not correlative, 
 nor corresponding propositions." Lord Brougham also: 
 said : " To say, if a man should confess a felony for which he 
 would be lial)le to })rosecution, that, therefore, the instant 
 the grave closes over him, all that was said by him is to be 
 taken as evidence in every action and prosecution against 
 another person, is one of the most monstrous and untenable 
 propositions that can be advanced."^ The amount of pecu- 
 niary interest is not important ; it is sufficient if, at the time 
 the declaration or entry was made, it charged the person making 
 it to any extent? 
 
 as a part of the res gestcB. So ad- * Sussex Peerag-e Case, 11 CI. & F. 
 
 missions of a deceased man, made 110, overruling Standen v. Stan- 
 
 against his interest, or by an agent, den, Peake, 4.5. 
 
 constituting or qualifying the trans- '^ But see Coleman v. Fraser, 4 
 
 action inquired after, may go to the Rich. (S. C.) 152, where an admission 
 
 jury. But the opinion of Hopkins made by a clerk of the defendant 
 
 has none of these qualities, nor is it that he had stolen a certain sum of 
 
 accompanied vnih. any of the safe- money, as evidence against his j irin- 
 
 guards of such evidence. It does cipal, because it exposed the clerk 
 
 not differ from the opinion or remark to prosecution. See also Click v. 
 
 of any other person deceased, who Hamilton, 7 id. 66. 
 
 was acquainted with the subject- ^ R. v. Worth, 4 Q. B. 132. 
 matter in controversy."
 
 332 EVIDENCE. [cUAi'. X. 
 
 Sec. 122. Entries in Private Books, Etc. 
 
 riio cuiOji ill wliicli this exception is most frequently 
 ai»[iliod, lire ic/i<'re eiifnea have been made by a deceased 
 jjcnsoii in //«' due conr.sp of bu.sines.s, in /u's jjru-ale books, of 
 money or livopevty received by Jii)n from or for another 
 jjcrsou,^ and .sucli entries are admissible to prove the facts, 
 even thouf/h no privily exists between the deceased and the 
 person ayainst ivhom the evidence is tendered} In many 
 cases such entries may be admissible, although the person 
 making them is still living, where they properly are a part 
 of the res (jeslce. Thus, in an English case,^ in an action 
 ui)()n a bond given for the fidelity of a clerk, to the plaintiUs, 
 in [Kiying money and all his dues, it Avas shown that it was his 
 duty to keep their books. He kept the books and entered 
 therein the moneys received by him, and died. In admitting 
 the entries as evidence against the sureties upon the bond, 
 LoitD Tentekden laid great stress upon the circumstance 
 th.it the clerk was dead. But, inasmuch as these entries were 
 made by the clerk in the line and as a part of his duty, it 
 is clear that they were also admissible as a part of the res 
 yestoi. In another case,'* a collector's private book by 
 which he collected and ticked off the sums paid, was of- 
 fered in evidence. Several receipts given l)y the collector to 
 private persons, for taxes paid by them, Averc; produced, and 
 the whole duh" proved, the private books being seen with 
 his family at the time of his death. All the entries and 
 receipts were shown to have been in the usual line of business 
 of the deceased in his office of collector, and the whole were 
 received against his surety, on the ground that the entries 
 were madt.' by a deceased person against his interest.'' 
 
 ' Burry v. IJabbington, 4 T. R. "" Whitmarsh v. Gciij,-c, 3 M. & R. 
 
 514 ; Doe v. Taylor, 6 Bing. 562 ; 42 ; Middleton v. Milton, 10 B. & C. 
 
 Bree v. Beek, 1 Youiige, 225; Ed- 317. This case overrules Gass v. 
 
 wards ». Rees, 7C. & P. 340 ; Rogers Wattington, 3 B. & B. 138 ; Lee v. 
 
 r. Allen, 1 Camp. 301) ; Wynne v. Va. & Maryland Bridge Co., ante. 
 
 Tyi-Nvhitt, 4 B. & Aid. 376 ; Manning ^ Whitmarsh v. Genge, 3 M. & R. 
 
 r. Lcfhmere, 1 Atk. 453; Hai-perv. 42. 
 
 Brooke, Womleson's Lect. 332; Short * Middleton v. Milton, 10 B. & C. 
 
 r.Lee. 2J.&W. 464. InLeet). Va. 317. 
 
 &. Maryland Bndge Co., 18 W. Va. ^ Plaxton v. Dare, 10 B. & C. 17. 
 290, this exception was recognized.
 
 SEC. 122.] DECLARATIONS BY DECEASED PERSONS. 333 
 
 In this country many of the courts have adopted the idea 
 that the declarations of the principal may bind in the same 
 sense that those of an agent would, both being within the 
 scope of their l)usiness. The words or declarations then 
 are the acts or parts of acts • and it is for the acts of the 
 principal that the surety is bound. In such a view, the 
 principal need not be dead. You prove his entries or dec- 
 larations the same as you do his other acts by a third per- 
 son ; and that without reference to the fact that he can be 
 produced as a witness. In a Pennsylvania case ^ the defend- 
 ant was surety for the good behavior of Cobbett, the editor. 
 It was shown that a libel (a volume of " Porcupine ") was 
 paid for to Coljbett's common clerk, and this was admitted 
 as the act of Cobbett. This case shows the principle. Here 
 was the act of Cobbett by his agent. On this distinctit)n 
 the entries of a teller of a bank in a book kept in the bank, 
 by which he daily stated his account, as teller, were received 
 against him, to show his default in a suit against his surety. 
 But his admissions, made in writing, after he was dismissed 
 from his office, were denied by several of the judges. The 
 former Avere likened by Cheves, J., who delivered the 
 opinion of the court, to the declarations of an agent within 
 the scope of his authority, which are a part of the res gestce ; 
 the latter to an agent's admission after he had ceased to act 
 for his prin(;ipal.^ The court did not stop to inquire whether 
 the teller was dead or alive. On the same principle, a jailer's 
 receipt for a prisoner was held receivable against his surety.^ 
 So, a statement of an account with the bank by a cashier, 
 explaining its receipts and defaults, made before his office 
 terminated ; for the sureties " were bound, not for them- 
 selves, but for him ; and his acts and sayings of course bound 
 them, and they must stand or fall by them." •* So, the 
 return of a sheriff that aji.fa. is satisfied, is a declaration 
 concluding his sureties in an action on their bond. ^ And so, 
 
 ^ Respublica v. Davis, 3 Yeates * Pendleton v. Bank of Kentucky, 
 
 (Penn.), 128. 1 Mon. (Ky.) 171. 
 
 ^ State Bank v. Johnson, 1 Const. ^ Governor v. Twitty, 1 Dev. (N. 
 
 Rep. (S. C.) 404. C.) 153. 
 
 ^ Barnard v. Com., 4 Litt. (Ky.) 
 148.
 
 334 EViDEXCE. [chap. X. 
 
 i)ii the siiiue principle, tlie inventory of an udniinlsliator is 
 eviilcnce in an action against his sureties.' Several of these 
 declarations are ol)vion.sly parts of the transactions for which 
 the sureties are l)ouu(l ; and that is the true point of inquiry. 
 Tliey are like a part payment by the principal on a proniis- 
 iiorv note, whieh has been held to take it out of the Statute 
 of Limitations, or to repel the presumptive bar of twenty 
 years' delay in respeet to the surety, who is jointly bound 
 {() pay.-' The surety is l>ound that he shall do the very act 
 whieh he is performing, to wit, payment, as the sureties were 
 that the cashier should do his duty by passing accounts at 
 the bank. AVhereas, the mere acknowledgment of the prin- 
 cipal with whom a surety is bound in a promissory note, has 
 been held not to aftcct the latter ; for such acknowledgment 
 eanuot be plaeed within the scope of the suretyship. The 
 case of joint debtors, where both are principals, stands on a 
 diilerent footing ; for they bind each other in respect to 
 their joint interest, as quasi partners.^ But after the lapse 
 of six years, the admission of the principal cannot be re- 
 ceived against the surety, even to take the case out of the 
 Statute of Limitations.^ And where the plaintiff took one 
 Buiiietl in as a partner in the business of tanning, and the 
 defendants eovenanted with the plaintiff that Burnett should 
 faithfully discharge his duty, as such partner, for two years 
 from the Uth of January, 1833, in an action on the cove- 
 nant, jissigning breaches in 1823, admissions made by Bur- 
 nett in 1825, that certain boolvs offered by the plaintiff in 
 evidence were the books of the firm, were held inadmissible 
 against his sureties. "True," says Hodman, J., delivering 
 the opinion, "that while the principal is aeting, his declara- 
 tions may be so interwoven with his acts as to stand in direct 
 connection with them, and form a part of the res gestce; but 
 when he cejises to act, his subsequent declarations have no 
 direct connection with his preceding acts, so as to bind his sure- 
 
 • Chairman, &c., v. Harramond, * Baker ■«. Briggs, 8 Pick. (Mass.) 
 4 Hawks (N. C), 339. 122 ; Longenecker v. Hyde, 6 Binn. 
 
 ' Hunt V. Bridgman, 2 Pick. (Penn.) 1. 
 (Mass.) 584. * Meade v. McDowell, 5 Binn. 
 
 (Penn.) 195.
 
 SEC. 123.J DECLARATIONS BY DECEASED PERSONS. 335 
 
 ties." ' So, to implicate the surety of a sheriff, his acknowl- 
 edgment that he had collected money was denied as evidence, 
 though it was said by Holman, J., " If this had been while 
 he was officially acting in relation to the receipt of the money, 
 the statement would have formed a part of the res gesicc. But 
 declarations at any subsequent period are inadmissible. It is 
 his ads, and not his admissions or declarations, for which the 
 sureties are bound," ^ In Evans v. Beattie,-^ in an action 
 against a guarantor of the sale of goods. Lord Ellen- 
 borough, C. J., rejected evidence of an admission by the 
 principal that he had received the goods. "The stipula- 
 tion," said he, ''was, to pa?/ for goods received, not for goods 
 acknowledged to have been received." The ground upon 
 which this decision rests is, that the principal is not the gen- 
 eral agent of the surety, so that he can bind him by a sub- 
 sequent acknowledgment respecting the goods furnished.'* 
 
 Sec. 123. Exceptions to the Rule. 
 
 But there are a class of cases in our courts in which the 
 admissions, declarations or acknowledgments of the princi- 
 pal, in this respect, are held to be admissible. Thus, in an 
 early Pennsylvania case^ the defendant had written to the 
 plaintiff, offering to stand jointly bound with one Wilson for 
 all contracts he might make. Subsequently Wilson sent 
 a letter to the defendant, giving a statement of what he had 
 purchased under the guaranty, and the plaintiff relied upon 
 this letter to prove the contract and fix the amount, and it 
 was admitted as evidence.^ But in a late Iowa case'' a let- 
 ter written by the principal in a written obligation contaiu- 
 
 ' Hotchkiss V. Lyon, 2 Blackf. John. (N. Y.) 38, where the admis- 
 
 (Iiid.) 222. sions of a wife that she had received 
 
 " Shelby v. Governor, 2 Blackf. certain property for her husband, 
 
 (Ind.) 289 ; Beal v. Beck, 3 H. & were held admissible. Simonton v. 
 
 McH. (Md.) 242. Boucher, 2 Wash. (U. S. C. C.) 473; 
 
 ' Evans v. Beattie, 5 Esp. 27. Treasurers?). Bates, 2 Bailey (S. C), 
 
 * Bacon v. Chesney, 1 Starkie, 302, which seems to be directly op- 
 •^"^- posed to the doctrine of State Bank 
 
 * Meade v. McDowell, 5 Binn. v. Johnson, ante. 
 
 (Penn.) 195. ■> Root & Sons Music Co. v. Cald- 
 
 * See also Fenner v. Lewis, 10 well, 54 Iowa, 432,
 
 33r» KVIDKNCE. [c'lIAP. X. 
 
 iivj; a statenu'iii ot" ;ulini»i()ii.s made l)y the .surd}-, was held 
 ii()t to l)c atlmissildc in an action against tlu' snnly. 
 
 In all cases, entries oi- reports made by a j)i"incij)al in the 
 line c()iii*se of Imsiness, or which it is his dnty to make, are 
 admissible in an action airainst his surety,' Imt are hehl not 
 to be conclusive upon hini.'^ The term " declaration," as 
 applied to the e\<cption which we aie consi(lcrin«;, enibiaces 
 (iff wn'tlcn fita/enu'iits, irhdlu'r made at the time of the fad 
 di'cfareif or at a snfjsequenl day,^ which are against either the 
 pi'oprietari/ or pecuniary interest of tlie person making them. 
 
 Sec. 124. Illustrations of the Application of this Exception. 
 
 Entries, in the books of a corporation, of a collector of 
 ta.xes, an aijent, stewanh bailiff, receiver, etc., subject to the 
 inspection of others, charging the party making it with 
 nioney or property received, come clearly within the excep- 
 tion, as also do entries in private books kept solely for the 
 convenience of the owner, and in his custody ; and such 
 entries are admissible, although they form only a part of a 
 general debtor and creditor account, the l)alance of which is 
 in favor of the receiver,^ Ijecause, to the extent of such en- 
 tries, the admission is against the interest of the party mak- 
 ing them, and the balance in his favor would be diminished 
 to that extent. The question as to whether an entry made 
 by a person, acknowledging the payment of money as due 
 to himself, is admissible as a declaration against interest in 
 ca.ses where such entry is itself the only evidence of the 
 charge of which it shows the subsequent liquidation, is one 
 upon which the authorities are conflicting, ^ l)nt the weight 
 
 ' Stf rn V. People, 102 111. 540. " Doe v. Vawles, 1 M. & Rob. 
 
 » Ohiiing- V. Evansville, 66 Ind. 261, and Doe v. Burton, 9 C. & P. 
 
 59, overruling State v. Grammer, 254, held that such entries are not 
 
 28 id. 530 ; State w Pruther, 44 id. admissible ; while R. v. Hcndon, 
 
 287, and disapproving Baker u cited arr/uendo in 9 C. & P. 2.')5, 
 
 Preston, Gilmer (Va.), 235. and R. v. Lower Hayford, cited 2 
 
 » Doe V. Sumford. 3 B. & Ad. Smith's Leading Cases, 194, n., held 
 
 898 ; Short v. Lee, 2 J. & W. 475. that they are. See Calloway v. Mc- 
 
 • Williams V. Graves. 8 C. & P. Millan, llHeisk. (Tenn.) 557, where 
 
 592 : Clnrk r. Wihuot, 1 Y. & C. 53 ; enti-ies in a decedent's book of pay- 
 
 Rowe p. Brenton, 3 M. & Ry. 267 ; mcnts made by him to the plaintiff 
 
 R. r. Worth, 4 Q. B. 134. were held to be inadmissible, as
 
 SEC. 124.J DECLARATIONS BY DECEASED PERSONS. 337 
 
 of authority seems to be decidedly iu favor of their admis- 
 sion.^ Ill an action for the recovery of money, against tlie 
 administrator of a bailee, a memorandum book offered by 
 the defendant and admitted in evidence was proved to l)e 
 in the handwriting of the bailee, and it was shown that th& 
 entries were contemporaneous with the occurrence of the 
 transa,ctions. It was held that these memoranda were in the 
 nature of a statement by a trustee of his doings as such. 
 They charged him with various matters, and most of the 
 entries were against his own interests. Hence the entries, 
 though not conclusive, were evidence for the jury to consider.^ 
 So, too, memoranda made by a sheriff, in a book kept by 
 him for that purpose, are admissible as evidence in a suit 
 between third parties, after the death of the slieriff, where 
 the entries were made in the course of his official business, 
 and were against his interest at the time.^ The fact that a 
 person who made entries in a ledger was not a clerk in the 
 store, but was employed merely to post the books of the 
 party offering them in evidence, cannot exempt such evi- 
 dence from the operation of the general rule which permits 
 entries made by a person against his interest to be offered in 
 evidence. Thus, where the plaintiff offered in evidence his 
 original ledger book, containing entries in the handwriting 
 of the defendant's testator, and afterwards his day-books, 
 containing daily entries against deceased and other parties, 
 but all in the hand writing of the testator, it Mas held that al- 
 though these entries Avould not have Ijeen admissible for the 
 purpose of charging a third person, because made by a clerk 
 in the ordinary discharge of his duty, and contemporaneous 
 with the transactions to which they related, yet they were 
 admissible as declarations or admissions made by the party 
 against his interest.^ 
 
 they were neither entries against Buckley ii. Buckley, 12 N. W. 423. 
 
 interest or in an official employment. In State v. Castle, 79 N. C. 34, it was 
 
 ' 2 Smith',s Leading- Cases, 194 ; held that to render business entries 
 
 R. V. Hendon, cited 9 C. & P. 255 ; of deceased persons admissible; the 
 
 R. V. Lower Hayford, 2 Smith's evidence that they were original and 
 
 Leading Cases, 194, n. ; Higham v. contemporaneous must be extrinsic. 
 
 Ridgway, 10 East, 109. = Field v. Boynton, 33 Ga. 239. 
 
 2 Gaines v. Gaines, 39 Ga. 68 ; * Ward v. Leitch, 3 Md. 326. 
 22
 
 J.iS KVIOKNCE. [chap. X. 
 
 Sec. 126. Person Making, must be Dead. 
 
 Tho turning \nmii iii tliu ;idini.-56ioii of this class of entries 
 is, thai the person who made the entry is dead. Being dead, 
 the entry in discharge i)roves not only tiie siniijle fact of pay- 
 ment, so a.s to extinguish the debt, hut may be received to 
 fvory incidental matter stated in the declaration. Thus, the 
 entry in the books of the midwife provi-d not only the 
 payment, but the time of the birth. ^ The entry of a deceased 
 attorney of the payment to him of a part of the judgment, 
 proved not only the i)ayment, but by whom it was made, and 
 on what account, distinguished between the principal and 
 the surety.- But the rule is otherwise where the declarant 
 is alive. Tl^us, in an action by one surety against another, 
 for contribution of money paid b}^ one plaintilf on a bond 
 to West and others, after the plaintiff had proved the pay- 
 ment, the defendant insisted that, before the plaintiff had 
 paid, the i)rin(i[)al had discharged the debt, so that the 
 plaintilf had i)aid in his own wrong. To show the previous 
 payment, the defendant proved that the principal had paid 
 money to the obligees, and then offered to prove the admis- 
 sion of West, one of the obligees, that such payment had 
 been made on account of the bond. It was objected that 
 West should be called, and the objection sustained. Parke, 
 J., remarked that what West said at the time of the pay- 
 ment might l)e received as a part of the re.s gestae, ; but any 
 declaration made after payment, upon what account he re- 
 ceived the money, is no evidence against the plaintiff. His 
 unsworn declaration cannot bind any interest of the plaintiff.^ 
 And a mere oral declaration of this character, coming from 
 the creditor, even after his decease, would be inadmissible. 
 In a like action for contri])ution, the defendant offered to 
 prove, by the creditor's acknowledgment, she being dead, 
 that the defendant had paid $300 of the money as surety. 
 This was offered in order to reduce the amount of contri- 
 bution. The fact of payment, or by whom, or on what 
 
 ' Higham v. Ridgway, ante. ' Dunn v. Slee, Holt N. P. 399. 
 
 ' Thompson t). Stevens, 2 N. & 
 McConi (8. C), 493.
 
 SEC. 125.] DECLARATIONS BY DECEASED PERSONS. 
 
 339 
 
 account made, was not offered to be proved in any other way. 
 The evidence was rejected as hearsay. The court said such 
 admissions ought not to be received at all, except against the 
 party making them, or those claiming under him.' In a 
 similar action, a receipt for the moneys, signed by the attor- 
 ney on record, of the creditor who had sued and obtained 
 judgment against the sureties, was denied as evidence between 
 the latter, though offered merely to show the payment of the 
 money, the attorney being still alive.^ The receipt was 
 obviously no better evidence than if made by the party 
 instead of his attorney ; it would be prima facie evidence 
 ascainst the former, ])ut as between the sureties, or between 
 them and their principal, was no more than a written state- 
 ment, without oath. When a letter of the alleged receiver of 
 goods on commission was produced against the defendant, who 
 was sued for having fraudulently recommended the receiver 
 as credit- worthy, acknowledging the delivery of the goods, it 
 was rejected, Tilgman, J., saying: "Collusions might 
 be formed between plaintiffs and their witnesses, who might 
 easily l)e induced to make declarations in letters which they 
 would be afraid to verify on oath in open court."^ In assumpsit 
 for goods sold to defendant's wife, who was entitled to a 
 separate maintenance payable hy the defendant to trustees, 
 the material question was, whether the maintenance had been 
 regularly paid. To show this, the receipts of the trustees 
 were offered in evidence by the defendant. Held inad- 
 missible ; and, per curiam, "A man's receipt is not evidence 
 to prove a payment against a third person. Those who gave 
 the receipts should have been called."^ In trover for goods 
 distrained, the plaintiff insisted that he was tenant of John 
 Brown, and not of the defendant, Hugh Brown ; and showed 
 that the payment of rent had always been to John. To show 
 that John had leceived the money as the defendant's agent, 
 the latter offered John's account of the payments rendered 
 
 ' Thomas v. Thomas, 2 J. J. Mar. ' Longenecker v. Hyde, 6 Bha. 
 
 (Ky.) 60. (Penn.) 1. 
 
 » Warner v. Price, 3 Wend. (N. ' Cutbush v. GUbert, 4 S. & R. 
 
 Y.) 397. (Penn.) 551.
 
 340 
 
 EVIDENCE. |C1IA1'. X. 
 
 l)y him t«) the dcfeiuluiil. Ilt'M that John, being tilivc, 
 jshouhl Ik' i"ilU'(l ; and the account wn^ rejected.' 
 
 In another action it ai)i)eared that one Beaman had, Avilh 
 thii'O others, signed a note to tlie Bank of Kuthmd. He 
 insi.sted that he was their surety ; and to prove that he paid 
 the money, produced and ollered in evidence the receipt of 
 the cashier, indorsed on the note, stating that he had paid 
 the nionev. The judge refused to receive this as evidence 
 cither «>f payment or of the pei-son who paid, there l)eing no 
 l)ro()f that the cashier was dead ; indeed, it was admitted that 
 he wa-s living, and hut a little way otf. And afterwards, on 
 motion for a new trial, the judge refused it.^ 
 
 The <reneral rule, therefore, is, that certiticates, receipts, or 
 other admissions of payments, made l)y persons other than 
 the paitv tt) the suit in which they are offered, cannot be 
 receivetl ; but such payments nnist l)e proved by a Avitness.' 
 Accordingly, the certiticate of a living surveyor, that he had 
 received his fees of survey, being offered to affect a party in 
 H suit with which the surveyor had no concern, was held 
 inadmissil)le. And the admission of the plaintiff's agent to 
 collect the mon(^y, that he had made the collection, is no 
 evidence against his principal.^ 
 
 It cannot I)e denied, however, that the rule has been 
 departed from in one or two cases. Thus, where one Sherman 
 authorized Crosby to settle a suit brought against the former 
 l)y Bemiet, and pay the money to be found due on the settle- 
 ment, in a suit between the two former, wherein Crosby 
 claimed the money as paid by him on the settlement, a receipt 
 for the money as paid on the judgment in the cause, signed 
 ])y Bemift, was admitted as evidence of the settlement and 
 payment, to charge Sherman.* The court say the receipt 
 was prima facte evidence of the demand and payment ; 
 and it lay with Sherman to impeach it. Of this case it 
 
 ' Spargo V. Brown, 9 B. & C. 935. * Dax-is v. "Whitesides, 1 Dana 
 
 * Boaman v. Cushman, W.ashinfr- (Ky.), 177. 
 
 ton Circuit, June, 1833, before ' Sherman V. Crosby, 11 John. 
 CowKN, Circuit Jcdge. (N Y.) 70. 
 
 • Clnijfra^e r. Swan, 4 Binn. 
 (Penn.) 150.
 
 SEC. 125.] DECLARATIONS BY DECEASED PERSONS. 341 
 
 should 1)0 remarked that there was iio pretense that Bennet 
 was not alive, and within the jurisdiction of the court. He 
 stood as creditor, and Crosby paid the money to him at the 
 request of Sherman. The amount of the decision is, that 
 in all actions for money paid, the receipt of the payee, 
 though he be alive, shall be admissible to charge the defend- 
 ant with the fact of payment. Bennet was not an agent, 
 nor a joint party with Sherman, either on the record or as 
 having a common interest ; the receipt might or might not 
 have been a part of the res gestae, but the latter did not 
 appear, for no act was shown to which the written declaration 
 would attach. To put it on the latter ground would, there- 
 fore be a plain instance of the petltio principii. In a word, 
 there seems to be no instance, if we except the next case, 
 infra, within which Sherman v. Crosl)y can be brought. It 
 would operate to reverse the entire rule laid down by Tilgh- 
 MAN, C. J., in Cluggage v. Swan, supra. Receipts and 
 certificates of private persons would become substitutes for 
 their sworn testimony. In actions for money paid, this new 
 kind of written evidence would be the universal, because the 
 ready, medium of proof, which may, according to Tilghman, 
 C. J., supra, be coUusively introduced ; and, we may add, 
 amended, like a notary's certificate to charge an indorser, or 
 a justice's exemplification of his proceedings, till it shall be 
 full and })lain to the purpose. It would be a convenient 
 mode of proof for fraudulent purchasers of property, under 
 2n-etense of having paid large debts for the insolvent, or 
 paying him a large consideration. Both the time and the 
 amount of payments are generally of great consequence in 
 such cases ; and the strictest rules of evidence can with 
 difiiculty gnard against imposition. In another case the 
 plaintiff" sued for passage money to Europe, paid for the 
 defendant's testator, and the captain's oral admission, made 
 about the time the testator sailed, was received as proof of 
 the payment. The captain was dead, and the court below 
 put it on this ground. On error, the court repudiated that 
 principle, and said, whether the captain was dead or alive, 
 the testimony was admissiljle, being made by one able to 
 bind himself by a receipt or acquittance, and made too about
 
 ;;4:> KVIDKNCE. [cilAl'. X. 
 
 the time of the testator's siiliug. If it were to stand on 
 the groiiiKl of the eaptain's death, perhaps tlie court would 
 iv«piiie that it should have been iu writing.' This is doubt- 
 less a sjifer ease than Sherman v. Crosby. The captain being 
 (lead, it wants only the form of a written entry to bring it 
 within tlu^ KuLrlish rule. But whether dead or living, the 
 oath ol' the hearer could iix the time when the declaration 
 wiLS made ; and ])revent imposition in that particular. This 
 case, however, fails as to any support from the dcelaration 
 being a part of the res gesfce. Proof aliuni,le that money 
 wjis paid, and that the declaration was contemporaneous with 
 the payment, would alone give it that character, so as to 
 bring it within the suggestion of Pakkk, J., in Dunnr, Sloe, 
 sujna. It seems also to fail in support from any adjudged 
 case founded on the declarant's death ; for we believe not 
 one has gone the length of saying that oral declarations of a 
 person, however much it may militate against his interest, 
 shall be received merely upon the ground that he is dead. 
 Not only nmst the declaratiou ))e written, l)ut its introduction 
 has generally been accompanied with circumstances calcu- 
 lated aliirmatively to repel suspicion that it may have been 
 siujulated. 
 
 Sec. 126. May be used as Evidence of Collateral and Independent Mat- 
 
 t3r.3, \7hen. 
 
 The rule seems to be that, where an entry is against 
 the interest of the i)erson making it, he being dead, tt may 
 be axed as en'dence of collaleral and independent matters, 
 u'/ik7i, allhonffJi not ntrietly against the interest of the declar- 
 anl, get fdrm a part of tlie transaction. Thus the entry in 
 an acconciieur's Ijook^ was held admissible to i)rovc the age 
 
 ' IIolla<lay v. Littlepage, 2 Miinf. \\\nm a trial of a i)Ci-scii for forgery 
 
 (Vu.) :MA. of a deed which i)uii>orled to have 
 
 ' In Hiyham v. Ridg^vay, ante, been executed by the person niak- 
 
 8ee also Wan-en 7\ Gi*eenville, 2 ing such acknowledge en ts before 
 
 Stranffe. ITJO. In Noui*se v. Mc- the same magistrate, ujwn the 
 
 Coy, 2 Rsnvle (Penn.), 70, the ac- gi-ound that as res ge.stcB they af- 
 
 count book of a deceased magis- foi-ded a ]>resumption as to other 
 
 trate, showing charges for taking of facts, and that an amission in a 
 
 three other deeds on the same day course of usual entry is often as 
 
 and no charge for the one in qnes- strong a fact as an entry, 
 lion, wa.^ held to be admissible
 
 SEC. 126.] DECLARATIONS BY DECEASED PERSONS. 343 
 
 of the child deceased, the entry containing a statement of 
 the accoucheur's attendance and his charge therefor, and being 
 marked " paid." In this case the entry would not have been 
 admissible, except for the entry of " paid," which brought it 
 within the rule, as being against interest ; Lord Ellenbor- 
 OUGH, in answer to the argument that only that portion of the 
 entry containing the word " paid " could be used, saying, " It 
 is idle to say that the word " paid " only shall be admitted in 
 evidence without the context, which explahis to what it refers ; 
 we must therefore look to the rest of the entry to see what the 
 demand was which he thereby admitted to be discharged." 
 And this principle has been acted upon in many cases since.^ 
 But it must be remembered that, in order to make entries 
 against interest evidence of independent matters, there must 
 he a direct connection betivcen the entries and the matters they 
 are sought to establish, and such entries can huve no bearing 
 ujpon matters separate and distinct therefrom.^ In other words, 
 an entry which is admissible after the maker's death, because 
 made in the course of business, is evidence of those things 
 only which, according to the course of that bushiess, it was 
 the duty of the deceased person to enter. In an early En- 
 glish casc^ the plaintiff, being a brewer, l^rought an action 
 against the Earl of Torrington for beer sold and deUvered, 
 and the evidence given to charge the defendant was, that the 
 usual way of the plaintiff's dealing was, that the draymen 
 came every night to the clerk of the brew-house, and gave 
 him an account of the beer they had delivered out, which 
 he set down in a book kept for that purpose, to which the 
 draymen set their names, 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. According to the En- 
 
 » Marks ■?). Lahee, 3 Bing-. N. C. testimony that it was correctly maae 
 
 408; Davis V. Humijlirey, 6 M. & at the time, was held to be evidence, 
 
 W. 153 ; Doe v. Robson, 15 East, 32 ; although he did not recollect the 
 
 Slead v. Heaton, 4 T. R. 6(39 : Letcr date. 
 
 V. Warren, 5 Q. B, 773. In Heath " Knight v. Waterford, 4 Y. & C. 
 
 V. West, 26 N. H. 191, on a ques- 283. 
 
 tion of minority, the charge of an ^ Price v. Torrington, 1 Salk. 285. 
 accoucheur for his services, and his
 
 344 EVIDENCE. |ciiAr. X. 
 
 "lisli ca.sos, il" the ilrayniiui had iiotitied a clerk or ])Ook-kt'oi)cr 
 ol' the i)laintiir of the ik-livcry of the beer, and the latter 
 hail made the entry, it woiiM not be adniUwible, because it 
 AVDuld then i^e an entry predicated upon mere hcai-say,' and 
 there can be no question a.s to the soundness of this rule. 
 A written btalement ot a fact which the i)erson making 
 knew nothing about, cxce})t what he has In ard from others 
 who did, or pretended to, know, is no better evidence than 
 uny ordinary hearsay. The circumstance that it is ^vritten 
 gives it no additional character or value. It was in its in- 
 ception, and nmst always remain, mere hearsay. The appli- 
 cation of this branch of the rule is well illustrated by the 
 case last cited. ^ In that case, in an action for the price of 
 coals which had been sold at the pit's mouth, an entry was 
 rejected w irkh appeared to have been made in the following 
 manner : In the ordinary course of business it was the 
 duty of one of the workmen at the pit, named Harvey, to 
 give notice to the foreman of the coal sold; and the fore- 
 man, who vtas not present when the coal w'as delivered, and 
 who was unable to write, used to employ a man named 
 Baldwin to niak(^ entries in the books from his dictation. 
 Baldwin read over these entries every cvenmg to the fore- 
 man. At the time of the trial Harvey and the foreman 
 were dead, and Baldwin was called to produce this book, 
 with the view of proving thereby the delivery of the coal in 
 question ; but the court held that it was inadmissible. The 
 ground of this decisicjii appears to have been, that, although 
 the entries, being made under the foreman's direction, might 
 be regarded as made by him, yet, inasmuch as he had no 
 ppTsonal knoivkd'je of the facts stated in them, but derived 
 his information at second hand from the workman, there was 
 not the same guaranty for the truth of the entries as might 
 be found where the party making the entry had himself 
 done the business, a memorandum of which he had inserted 
 in ills book. But such an entry is admissible if the pei-son 
 reporting the facts embraced therein is produced and testi- 
 fies to the correctness of his rei)ort,^ as it is immaterial how 
 
 ' Brain V. Pi-eece, 11 M. & W, 778. ^ Payne v. Hodge, 71 N. Y. 598. 
 • Braia r. Preece, 11 M. & W. 773.
 
 SEC. 127.] DECLARATIONS BY DECEASED PERSONS. 345 
 
 the truth of the facts stated in the entry is proved, provided 
 it t's proved. In a Connecticut case/ in an action for goods 
 sold, the account books of the plaintiff, containing a charge 
 of the goods to the defendant, made in the regular course of 
 business, are admissible in support of his claim ; and it does 
 not affect the c^uestion of their admissibility that the entry 
 was made by the plaintiff upon information of the sale given 
 him by a salesman in his employ, who had sold and delivered 
 the goods at a distant place ; nor the fact that the delivery 
 of the goods is admitted, and the only question is whether 
 they had been pin-ehased by the defendant or only taken to 
 be sold on a commission. The circumstances in which an 
 entry was made, so long as it was made in the regular course 
 of business, affect only its weight as evidence. The fact 
 that it is or was the custom of a person to enter certain mat- 
 ters in his book, they not being against his interest, and it 
 not being his duty to enter them, does not render the entry 
 admissible. Thus, in an English case,^ it became necessary 
 to show that a contract of service had been for less than a 
 year ; and, in order to do this, proof was given that the em- 
 ployer, who was dead, had in the course of his business been 
 in the habit of hiring farm servants, and that his practice, 
 when he did so, was to enter the time and terms of such 
 hiring in a book ke[)t by him for that purpose. This book, 
 which contained entries of the service in question, and 
 showed that the servant had been engaged for half a year 
 only, was tendered in evidence ; but the court held that it 
 was inadmissible, on the ground that, although it might be 
 the practice of the master to make such entries, it was not 
 his diU// to do so. 
 
 Sec. 127. Similarity between Rule as to Entries made by Persons in 
 Office, Etc., and as to Declarations of Deceased Persons. 
 
 In many respects the rules which regulate the reception 
 of entries made l)y deceased persons are the same as those 
 which prevail with respect to declarations against interest. 
 For instance, the death, ^ the handwriting, and the official 
 
 ' Smith V. Law, 47 Conn. 431. ^ See Cooper v. Mai-sden, 1 Esp. 
 
 * R. V. Worth, 4 Q. B. 132. 1, per Lord Kenyon.
 
 34t) EVIDENCE. [CIIAI'. X. 
 
 clianu?tcr of the person who niiule the entry must 1)c proved ; 
 aiul it should furtlier :ipi)o:ir th:il lie hud no motive to mis- 
 stat<>. In some parlicuhirs, however, there is a marked dis- 
 tinction between the two chisses of cases. Thus, in order to 
 rrndt-r athnissihle entries made in the course of office or 
 business, they nmst, unlike declarations against interest, be 
 proved to have l)een made contemporaneomlij with the acte 
 which they relate. "It is to be observed," said Parke, B., 
 •' that in the case of an entry 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 (of an entry made in the 
 eour-ic of business) it is esseiUial to prove that it ivas made at 
 the time it purports to bear date; it must l)e a contempo- 
 raneous entry."' In using the word "contemporaneous," 
 it is not //leant that the entrij must have been made at the im- 
 /aediate time of the occurrence ; but it ivill be sufficient if 
 viad>: within so short a time after as reasonabhj t</ be con- 
 sidered part of the transaction. Thus, if the business is 
 .lo:ie in the morning, and the entry is made in the evening 
 of the same day, - or perhaps even on the following morning,* 
 it will be sufficient : lliough, where several intermediate 
 days had elapsetl between the date of the tnmsaction and 
 the time of inserting an entry of it in the book, the evidence 
 has been rejected ;■* and in one case the interval of a single 
 day was held to constitute a valid objection.^ So, too, as we 
 have seen, declarations against interest are often admis- 
 sil)le to prove independent matters, which, though forming 
 part of the entry, are not in themselves against tlu; interest 
 of the declarant. A stricter rule, however, prevails with 
 respect to official or business entries, and it may be said that 
 whatever effect may be due to an entry made in the course of 
 office, reporting facts necessary to the pe/formance of a duty, 
 
 • Doe r. Tiirfonl, 3 13. & Ad. SOT ; ^ Ingrahara v. Bockins, 9 S. & R. 
 Poole V. Dica.s 1 TJing. N. C. 6.54. (Penn.) 'iS.'j. 
 
 ' Price V. Torrinffton, 1 Salk. 235 ; * Forsythe v. Norcross, 5 Watts 
 Ray P. .Jone-s 2 Gale, 220; Curren (Penn.), 432. 
 
 V. Crawford, 4 S. & R. (Penn.) 3, 5. * Walter v. BoUman, 8 Watts 
 
 (Penn.), 544.
 
 SEC. 127.] DECLARATIONS BY DECEASED PERSONS. 347 
 
 the statement of other circumstances, however naturaUy they 
 may he thought to find a place in the narrative, is no proof of 
 those circumstances} Thus, where it became necessary to 
 show in what place the plaintiff had been arrested, and in 
 order to do this, a certificate of a deceased sheriff's ofiicer, 
 which had been returned by him to the office in the ordinary 
 routine of his dut}', and whicli specified, among other circum- 
 stances connected with the arrest, the spot where it took 
 place, was tendered in evidence. The court, while admitting 
 that the certificate was evidence of the arrest itself, as also 
 of the day when it was made, since it might be necessary 
 for the officer to make known these facts to his principal, — 
 
 ' Chambers v. Bernasconi, 1 C, 
 M. & R. 368. In Mississippi it is 
 considered to be a settled principle 
 of the common law, that a memo- 
 randum of one who knew the fact, 
 had no interest to falsify it, and 
 which was made by him as a public 
 officer in the regular course of his 
 business as such, he being dead, is 
 admissible evidence ; and accord- 
 ingly the written entry or memo- 
 i-andum of a deceased notary, as 
 to demand and notice, in case of 
 promissory notes, was held admis- 
 sible. Ogden V. Glidewell, 6 Miss. 
 179 ; Bodley i\ Scarborough, id. 729. 
 
 In Maine, Augusta v. Windsor, 19 
 Me. 317, in assumpsit for charges 
 incurred by the plaintiffs on account 
 of a pauper properly chargeable on 
 the defendants, it became imjaortant 
 to show at what time one Linscott 
 had had his leg broken ; and for the 
 purpose of fixing the date, the 
 plaintiffs offered in evidence a day- 
 book of Dr. Neal, of Gardiner, con- 
 taining two charges against Linscott, 
 one dated Sept. 28, 1821, and the 
 other, Sept. 29 of the same year, 
 for i-educing a fracture in his leg 
 and for medical attendance. It was 
 further proved that Dr. Neal at- 
 tended and set Linscott's leg ; that 
 he died in 1839 ; that he was a 
 
 regular practicing physician in 1820 
 and 1821 ; and that the book intro- 
 duced was in his handwriting. The 
 evidence was held admissible. And 
 in a later case it was held that 
 contemporaneous entries by third 
 persons in their own books in the 
 ordinary course of business, where 
 the matter is within their knowledge 
 and there is no apjjarent motive to 
 pervert the fact, are evidence. Dow 
 V. Sawyer, 29 Me. 118. 
 
 In Alabama it is held that books 
 of accounts kept by a deceased 
 clerk, and other entries or memo- 
 randa made in the course of business 
 or duty, by any one who would at 
 the time have been a competent 
 witness to the fact which he regis- 
 ters, are admissible evidence ; and 
 that if the book containing the 
 original entry has been destroyed 
 or lost, a copy, proved by the oath 
 of a person who copied it, is admis- 
 sible ; and accordingly a sworn copy, 
 from the book of a deceased ware- 
 houseman and weigher, of an entry 
 of the weight of some bales of cotton, 
 the book itself having been de- 
 stroyed in a fire, was decided to be 
 admissible in a suit between third 
 parties. Batre v. Simpson, 4 Ala. 
 306 ; Brown v. Steel, 14 Ala. 63.
 
 ;}48 EVIDENCE. [CIIAP. X. 
 
 weiv nil cloiiily of opinion that it could not l>e received to 
 show the pjirticulur spot where the caption took place, that 
 ciicunistanco being merely collateral to the duty done.' 
 Thi-s decision turned on the circumstance that the sheriff's 
 ullicor was ijoinp: beyond the sphere of his duty when he 
 made an entry of the ^j/ace of arrest, and that such an entry 
 tliercforc had no claim to be received as evidence of that 
 fact.- 
 
 Sec. 128. Where Entries are made by Agents, Etc., in due Course of 
 Office or Business ; Books of Account, Etc. 
 
 Where entries are produced which were made by persons 
 actinii: for others, as agents, clerks, etc., some proof of 
 agency is required, although, if the principal can be shown 
 to have adopted or acted upon the cntritjs, this would doul)t- 
 l&ss be sufKcient. Thus, in a New York case,^ in an action 
 against one of the directors of a fair association for goods 
 sold and delivered, an entry of an order in the plaintiff's 
 order book, headed with the defendant's name, was held to 
 be competent to show that the j)hiintiff acted on the order 
 and charged the goods to the defendant. Without ])roof 
 that the entry wad made by some person having authority to 
 make it, it is not admissible, although made many yeai-s 
 before, in one case one hundred and sixty years before it was 
 ollered in eNidencc* But where the books came from the 
 
 ' Chiunl)f;i-s v. Bernasconi, 1 C, since he acts as a sworn officer, and 
 
 M. & R. i547, 308. is clothed with public authority and 
 
 * Poole t). Dicaa. 1 Bing. S. C. 655. confidence." But see Bank of Wil- 
 In Nichols v. Webb, 8 Wheat. (U. ming-ton ■«. Bradun, 1 Harr. (Del.) 
 S.) 326, an entry by a notary who 14 ; Bank of Wilmino-ton v. Cooper, 
 wius dead, upon a book which was 1 id. 10; Spurm v. Baltzell, 1 Fla. 
 Hhnwii to contain a regular record 392, where the rule stated in the text 
 of his ratioiud acts, was admitted to is adopted and the force of such en- 
 prove demand and notice. The tries is confined to the /acis, which it 
 entry wa-s as follows : " Endorser is the duty of the officei" to state. 
 duly notified in writing, 10th .July, '' Wilcox v. Silver Plate Co., 72 
 1819, the la,st day of grace being N. Y. 17. 
 
 Sunday, the ISth." Story, J., said : " Manby v. Curtis, 1 Price, 225; 
 
 " We think the acts of a public Davies v. Morgan, 1 C. & J. 590 ; 
 
 officer, like a notary public, admis- Short v. Lee, 2 J. & W. 466 ; Stand 
 
 Bible, although they may not he v. Bradford, 2 Penn. 384 ; Jermain 
 
 strirtlyoffirinl, if thry are affordmg v. Dennison, 6 N. Y. 276 ; Richard- 
 
 to the customary business of his office, son v. Kimball, 28 Me. 463.
 
 SEC. 128.] DECLARATIONS BY DECEASED PERSONS. o4& 
 
 proper custody, and contain strong internal evidence of their 
 genuineness, slight proof of the authority or official charac- 
 ter of the writer will be sufficient to let them go tothe jury,^ 
 and, indeed, according to the cases cited, if the internal 
 evidence of their genuineness is strong, this may bo sufficient 
 of itself. It is not, in the case of books of account kept by 
 a deceased person, any objection to its admissibility that it 
 contains entries in his interest, as well as against it. Thus, 
 where the book contained entries of sums received by the 
 deceased, upon one side, and upon the other entries of sums 
 paid by him,^ it was held to be admissible, even though the 
 books shew a balance in his favor." Entries made by a de- 
 ceased clerk or agent, made in the usual course of business, 
 as required in the line of his duty, upon proof of his hand- 
 writing in the l)ook, and the book, upon inspection by the 
 court, appearing to be fairly kept, are evidence of the facts 
 stated therein.* But in order to give them that effect, the 
 entries must appear to have been made in the usual course 
 of business and of his employment,^ the books to have been 
 properly kcpt,^ and the items charged therein must be proper 
 subjects of book charge,''' as a party cannot be permitted to 
 make evidence for himself by making entries upon his books 
 of account as to matters which do not properly enter into 
 or form a matter of account ; and in this connection it may 
 be said that nothing can be the subject of book account 
 which cannot be recovered under the general counts in as- 
 sumpsit.^ Thus, in the case last cited, a factor agreed to 
 return to his principal all property remaining unsold in his 
 hands after the termination of his agency. But he failed to 
 do so, and the property was charged to him in account. 
 The court held that inasmuch as it was not shown that the 
 
 ' Brume v. Thompson, 6 Marsh. * Dow v. Sawyer, 29 Me. 117. 
 
 36; Later v. Warren, 5 Q. B. 773; * Lockey ^. Schreiber,17Mo. 146. 
 
 Doe V. Thynne, 10 East, 206. ^ Kent v. Garvin, 1 Gray (Mass.), 
 
 "" Raure v. Brenton, 3 M. & R. 148. 
 
 268. ' Henshaw v. Davis, 5 Cush. 
 
 ^ Williams ■«. Graves, 8 C. & P. (Mass) 145; Earle v. Sawyer, 6 id. 
 
 .')92 ; Moone v. Deandee, 2 Y. & C. 142 ; Inslee v. Prall, 23 N. J. L. 
 
 259 n. ; Clark v. Wilmot, 1 Y. & C. 457 ; Cale v. Dial, 8 Tex. 547. 
 
 53. 8 Kidder v. Lawless, 44 Vt. 303.
 
 ^Otl EVIDENCE. [CIIAl'. X. 
 
 property had Ijccn converted into money, a recovery could 
 not he h;id against the defendant therefor in hook account. 
 The proper remedy was trover. 
 
 Not only entries, hut declarations made by deceased per- 
 sons against their interest, are received in a variety of cases, 
 and when admitted, they are evidence of all the facts stated 
 therein, although some of them may not have been within 
 the personal knowledge of the party making them,* and al- 
 though, if living, the party making them could not have 
 been admitted to testify to the fact, by reason of interest,^ 
 or would have been excused from answering questions rela- 
 tive to it.^ The books of a deceased mason, containing 
 charges for the repair of a bridge, which was marked as 
 "^?«2(Z," was admitted not only to prove the fact of repairs, 
 l)ut also to fix the liability of a parish with an obligation to 
 make them.^ So an entry found in the books of J., as fol- 
 lows : "J. W. paid me three months' interest," followed by 
 other entries indicating a loan to J. W., was held to be ^nVwa 
 facie against J.'s interest, and therefore admissil)lc.® Entries 
 made by a deceased agent, or person having the custody of 
 another's lands, of money received by him from diflerent 
 ixrsons in settlement for trespasses committed by them upon 
 the lands, are admissible to prove the principal's right to the 
 lands, ^ and it seems that in such cases, if the book or docu- 
 
 • Crease v. Ban-ett, 1 C, M. & R. » Sussex Peerage Case, 11 CI. & 
 
 319 ; Percival v. Manson, 7 Exch. 1 ; F. 110. 
 
 R. V. Birminfjham, 1 B. & S. 763. * R. v. Heyford, 2 Sm. Lead. Cas. 
 
 But the entries must be directly (5th Am. ed.) 194. 
 
 ajjainat the interest of the person * Taylor %\ "Witham, 3 Ch. Div. 
 
 making them. Thus, in Smith ?). 605. In this case, and the one cited 
 
 Blakey, D. R, 2 Q. B. 326, a letter in the last note, the decision of 
 
 from a deceased manager of the Littledale, J., in Gallup^. Vawles, 
 
 plaintiff's business, stating that the 1 M. & Rob. 261, was disapproved, 
 
 defendant had sent three cases to « Barry v. Bebbington, 4 T. R. 
 
 the office, and giving detail of the 514. And it has been held sufficient, 
 
 transaction under which they were even though the entry is signed by 
 
 sent, was held not to be admissible, a third person, where the authority 
 
 a.s the possibility of pecuniary loss to sign for the real agent appears 
 
 to the manager in the event of the upon the books to have been recog- 
 
 loss of the cases was too remote. nized and acted upon, and the per- 
 
 ' Gloadau v. Atkin, 1 C. & M. 424; son signing debits himself with the 
 
 Short V. Lee, 2 J. & W. 487. balance. Ashbumham v. Michael,
 
 SEC. 123.] DECLARATIONS BY DECEASED PERSONS. 351 
 
 ment is old and comes from the proper custody, it is not 
 necessary to prove the handwriting of tlie agent. ^ A bill of 
 lading, signed by a deceased master of a vessel, for goods con- 
 signed to a named consignee, is evidence, of property in the 
 consignee, even in an action of trover against a third person ;- 
 and in an action against a co-surety for contribution, a receipt 
 given by a deceased creditor, professing to acknowledge a 
 payment by tlie plaintiff of a sum of money "originally ad- 
 vanced to E. H.," is evidence not only of the payment, but 
 also of the original advance to E. H. as principal debtor.^ 
 Entries made by a deceased collector of taxes, charging him- 
 self with the receipt of money, and made by him in the 
 books of his office, are admissible in an action against his 
 surety to prove the receipt of the money by him ; * and this 
 is also the rule as to entries made by any person, in actions 
 against his sureties for his malfeasance." It has also been 
 held that an entry in a tax collector's books, showing that a 
 certain person is rated for a particular house, is evidence 
 that he was the occupier of the house at the time.^ Where 
 the party who made the entry is alive, even though he is 
 out of the jurisdiction, so that he cannot be called as a 
 witness, yet the proof or the entry is generally inadmissible.''' 
 But after the lapse of a long time, the death of the party 
 
 17 Q. B. 276. That the entry, if it interest. Welsh v. Sangfield, 16 M. 
 
 specifies the tenure of laud for & W. 497. Such declarations may 
 
 which money is paid, is evidence of be pi'oved by recitals in deeds. 
 
 such tenure, see Harper v. Dodd, Sly v. Sly, 2 P. D. 91. 
 
 Woodeson's Lect. 332. A declara- ' Wyman^y. Tyrwhitt, 4 B. & Aid. 
 
 tion by a deceased occupier of land 37(5. 
 
 that he rents it of A. is evidence of * Hadden v. Parry, 3 Taunt. 305. 
 
 A.'s seizin. Uncle v. Watson, 4 ^ Davies u Humphrey, 6 M. & W. 
 
 Taunt. 16 ; Came v. NichoU, 1 New 153. 
 
 Cas. 430. The principle upon which ' " Gass v. Wattington, 3 B. & B. 
 
 this rule rests is, that, occupation 132 ; Middleton v. Melton, 10 B. & 
 
 being- presumptive evidence of a C. 317. 
 
 seizin in fee, any declaration claim- * Whitnash v. George, 8 B. & C. 
 
 ing a less estate is against interest. 566. 
 
 Crease v. Barrett, 1 C., M. & R. 931. ' Strode -y. Seaton, 2 Ad. & EI. 
 
 It is upon this ground that an ad- 171 ; Smith v. Cartwright, Ry. & 
 
 mission in any form by a deceased M. 62. 
 
 occupier that he held only a life ^ Stephen v. Gwenap, 1 M. & Rob. 
 
 estate is evidence of such limited 121.
 
 352 EVIDENCE. [CIIAP. X. 
 
 lu.iUiiiir tho entry "will l)c prcsuincd, and in oneo;i.sethc lapse 
 ol" lift y-livc yvars was considered enough to dispense with 
 proof ol" death, although, it" alive, he would not have been 
 of an age heyonil the ordinary term of human life.' 
 
 It is doul)tful w^hether the oral declaration of a deceased 
 collector, made when paying over money to the landlord, 
 that he received it from A., is evidence against A., of 
 a payment /jf/ Jiim.^ If it is treated as a declaration ac- 
 coni[)an3ing an acknowledgment of money received, its 
 value as a declaration against interest is neutralized by the 
 contemporaneous payment. It is, at most, a disinterested 
 statement made at the time, and in explanation of a pay- 
 ment. Generally, the question of admitting statements 
 against interest made by deceased persons occurs where the 
 snit is inter alios, and the declarant is a stranger to it ; and it 
 has therefore been doubted whether, in a suit by an executor 
 to recover the balance due on an alleged contract for work 
 done, the plaintiff could put in evidence a declaration of the 
 testator to a third person respecting a i)ayment made by the 
 defendant to the testator, in order to prove the liability of 
 the defendant for certain extra work.^ 
 
 The declarations against interest of persons who at the 
 time of making them stood in the same situation and interest 
 as the party to the suit, are evidence against that party. 
 Thus, the declaration of a former owner of the plaintiff's 
 land, that he had not tho right claimed by the plaintiff in 
 respect of it, is admissible.-t Such declarations are admissible, 
 though the maker is alive and not produced. S. C. So, the 
 landlord's description of property in a former lease is evi- 
 
 ' Ashbumham v. Michael, 17 Q. payment of interest on the note by 
 
 "• 2'6- defendant within six years. So, 
 
 ^ Fursdon v. Clogg, 10 M. & W. entries on the debtor side of tes- 
 
 ^'^' tator's account book of the receipt 
 
 =* Edie V. Kingsford, 14 C. B. 759. of interest on a sum of money for 
 
 But in Bradley v. James, 13 C. B. which the executors were suing, 
 
 822 ; 22 L. J., C. P. 193, where the were held admissible to prove that 
 
 I.laintiff sued as executor of the the money was lent, and not given, 
 
 payee of a note, he was allowed to to the defendant, the testator's son. 
 
 rebut th» Statute of Limitations liy Peck v. Peck, 21 L. T., N. S. 670. 
 jiroof of a w-ritten acknowledgment, * Woodway v. Rowe, 1 Ad. & El. 
 
 made in a book by the testator, of 114.
 
 SEC. 128.] DECLARATIONS BY DECEASED PERSONS. 353 
 
 dence for a third person against a subsequent lease of the 
 same landlord, but not against a prior lessee. * A declaration 
 in an answer in Chancery by one who has sold property, is 
 not evidence against a person claiming under him by a con- 
 veyance antei ior to the bill filed. ^ The declarations of tenants 
 are not evidence against reversioners, though their acts are.* 
 Where an entry or declaration is made by a disinterested 
 person in the course of discharging a professional or official 
 duty, it is generally admissible after the death of the i)arty 
 making it. Thus, a notice, indorsed or served by a deceased 
 clerk in an attorney's ofBce, whose duty it was to serve 
 notices, is evidence of service.^ So, the entries in the books 
 of a deceased solicitor in his handwriting, relating to a deed 
 prepared by him and executed by a deceased client, were held 
 good evidence of the execution of the dccd.^ And a receipt 
 signed by a clerk employed by a collector to collect for him, 
 proves a payment to the collector himself.^ It should seem 
 on principle that contemporary oral declarations so made in 
 course of business may also be admissible.' Whether an 
 oral statement made by a receiver on paying over money is 
 evidence not only of the receipt, but also of the very party 
 from whom it was received, has not been decided.^ An attor- 
 ney's bill with an indorsement upon it, " March 4, 1815, 
 delivered a copy to C. D.," which is proved to be in the 
 handwriting of a deceased clerk, whose duty it was to 
 deliver a copy of the bill, and proved to have existed at the 
 date, has been held to be evidence to prove the delivery of 
 the bill.^ It has been held that a banker's ledger was 
 receivable in evidence, in an action between the assignees in 
 bankruptcy of a customer and a third party, to show that 
 
 - Crease t). Barrett, 1 C, M. & R. 370 ; Waldy v. Gray, L. R., 20 Eq. 
 
 919. 238. See Sly v. Sly, 2 P. D. 91. 
 
 " Gully v. Exeter, 5 Bing-. 171. « R. v. S. Mary, 1 E. & B. 816. 
 
 ^ Tickle V. Brown, 4 Ad. & El. ^ Sussex Peerage Case, 11 CI. & 
 
 378; Accord. Papendick t). Bridge- Fin. 113; Semh. ace. Stapylton v. 
 
 water, 5 E. & B. 166. Clough, 2 E. & B. 933. 
 
 * Patteshall v. Turford,3B. & Ad. « Fursdon v. Clogg, 10 M. & W. 
 
 890 ; Pad wick v. Skinner, 3 Exch. 572. 
 
 84 ; R. V. Dukinfield, 11 Q. B. 678. * Chapneys v. Peck, 1 Stark. 404. 
 
 ^ Rawlins v. Richards, 28 Beav. 
 
 23
 
 354 EVIDENCE. [chap. X. 
 
 the custoiucr at a certain time had no funds in the banker's 
 hands, -withont calling the clerks ^Yho made the entries 
 therein.' An entry of dishonor of a bill, made by a notary's 
 clerk in the usual course, of business, is evidence of the fact 
 of dishonor, after the clerk's decease.^ 
 
 Ui)on the same principle, contemporaneous entries by a 
 deceased shopman or servant in his master's books, in the 
 ordinary course of business, stating the delivery of goods, 
 a:c evidence for his master of such delivery.^ But an entry 
 of a hiring at certain wages, in the deceased master's private 
 book, Av it ha memorandum of payment, is admissible evidence 
 inter ah'oft* for it was iieilli(>r his duty to make it, nor was 
 he interested in making it in the proper sense of "interest." 
 An entry purporting to be the substance of a lease made 
 by the lord of a manor, contained in a book of his steward, 
 200 years old, is not evidence of the lease either as secondary 
 evidence or as an entry made in the course of duty or 
 business.** 
 
 In order to render such entries evidence, it must appear 
 that the shopman is dead ; that he is abroad, and not likely 
 to return, is not sufficient.^ The entry, too, must be by the 
 person who actually did the act recorded by it Thus, an 
 entry of goods sold, made by a witness on the dictation of 
 A., who had received intbrmation of the sale from B., a serv- 
 ant of the vendor, whose duty it was to report the sale to 
 A., was rejected as evidence of the sale, though A. and B. 
 were both dead.'' Where a person employed to serve a 
 notice on R. brought back the duplicate notice indorsed as 
 80 served, but stated orally that he had delivered it to W., 
 
 • Fuimess v. Cope, .'5 Bing, 114. * Price v. Torring-ton, Ld., ISalk. 
 
 '' Poole V. Dicus, 1 N. C. 649. In 285 ; Patteshall v. Turford, 3 B. & 
 
 Marks v. Lahee, 3 N. C. 408, an Ad. 898. 
 
 entry by a deceased clerk of the * R. v. Worth, 4 Q. B. 132. 
 
 plaiiitiflPs attorney, in a day-book, ^ Padwick v. Skinner, 3 Exch. 
 
 stating' a tender by him and refusal 84. See also Doe d. Padwck v. 
 
 by the defendant, was held evidence Wittcomb, 6 Exch. COl. 
 
 of a replication to that effect ; but " Cooper v. Marsden, 1 Esp. 1. 
 
 there was a previous entry of a ' Brain v. Preece, 11 M. & W. 773. 
 receipt by him of the money for the 
 purposes of such tender.
 
 SEC. 128.] DECLARATIONS BY DECEASED PERSONS. 355 
 
 it was held that, after the death of the person serving, it 
 was not competent to give in evidence his oral statement of 
 service on W. ' An entry in a letter-book kept by a deceased 
 clerk in the course of duty is secondary proof of the con- 
 tents of the letter sent, and of the posting of it, if that was 
 the course of business.^ 
 
 By stat. 7 Jac. 1, c. 12, s. 1, it was provided that the shop- 
 book of a tradesman shall not be evidence in any action for 
 wares delivered, or work done, above one year before the 
 bringing of the action, except the tradesman or his executor 
 shall have obtained a bill of debt or obligation of the debtor 
 for his said debt, or shall have brought against him, or his 
 executors, some action for the said debt within a year next 
 after the delivery of the wares, or the work done. By sec. 
 2, the act was not to extend to traffic, or dealing between 
 merchant and merchant, merchant and tradesman, or trades- 
 man and tradesman, for anything within the coiupass of their 
 mutual trades and merchandise. This statute seems to rec- 
 ognize the previous admissibility of shop-books. But the act 
 was never of much practical importance, and the admissi- 
 bility of such books at common law, in favor of the trades- 
 man, must generally depend on the principles already 
 referred to."^ 
 
 Although an entry made in the course of office, reporting 
 facts necessary to the performance of a duty, may be admis- 
 sible, yet the statement in it of other extraneous circum- 
 stances, however naturally they may find a place in the 
 narrative, is no proof of these circumstances. Thus, a return 
 by a sheriff 's officer of an arrest at a specified place is not evi- 
 dence, inter alios, of the jjlace of arrest.* This case illus- 
 trates a distinction between declarations against interest and 
 declarations made in the course of office or business. The 
 former declarations arc evidence of all the facts stated ; the 
 latter, only of the facts Avhich it was the business of the of- 
 
 ' Stapylton v. Clough, 2 E. & B. ' Symonds v. Gas Lig-ht Co., 11 
 
 933. Beav. 283. 
 
 " Pritt V. Fairclough, 3 Camp. * Chambers v. Bernasconi, 1 C, 
 
 305 ; Hagedorn v. Reid, ib. 379. M. & R. 347.
 
 35G 
 
 EVIDENCE. 
 
 [CIIAP. X. 
 
 ficcr or writer to stute.' So, entries against interest are evi- 
 dence, whensoever made. The latter entries must generally 
 be contemporaneous with the act done.^ 
 
 • Percival v. Nanson, 7 Exch. 1. 
 
 • Smith V. Blakey, L. R., 2 Q. B. 
 32G In Edie v. Kinf,'sford, 14 C. 
 B. 759 ; 23 L. J., C. P. 123, a dis- 
 tinction is incidentally made per cur. 
 
 between declarations " in the course 
 of Misiness," and declarations "in 
 the course of duty ; " but the cases 
 cited recogTuze no such distinction.
 
 CHAPTER XI. 
 
 MEMORANDA. WHEN MAY BE EVIDENCE. 
 
 SECTION. 
 
 129. How may be used as Evidence. 
 
 130. Should be made by Witness. 
 
 131. May be used, although its Contents would not be Admissible. 
 
 132. "Witness need not have Recollection Independent of. 
 
 133. When the Opposite Party is Entitled to see the Memorandum. 
 
 134. Memorandum itself only Admissible, when. 
 
 135. Memorandum in which Party can have no Interest to Falsify. 
 
 136. Minutes of Testimony of Deceased Witnesses. 
 
 Sec. 129. Memorandum, how may be used as Evidence. 
 
 Memoranda of facts and circumstances, made by an eye 
 witness, at the time of the occurrence, and which he swears 
 to be correct, are not generally admissible in evidence,^ 
 excejjt where they are made in the due course of business, 
 
 ' People V. Elyea, 14 Cal. 144 ; 
 Gilmore v. Wilson, 53Penn. St. 194; 
 Can- V. Stanley, 7 Jones (N. C) L. 
 131 ; Urkett v. Coryell, 5 W. & S. 
 (Penn.) 60 ; Tandy v. Masterton, 1 
 Bibb (Ky.) ?M. "Check slips" 
 made in the regular course of 
 business in transhipping- goods from 
 one cai" to another are admissible to 
 aid a witness making them, in 
 recollecting the number of the cars. 
 Shriedley v. State, 23 Ohio St. 130. 
 The certificate of a physician who 
 examined a person for an insurance 
 upon his life is admissible in evi- 
 dence, when he acted by the con- 
 sent of both parties as examiner, 
 although he was not the regular 
 examining surgeon of the company, 
 because in such a case his certifi- 
 cate partakes of the nature of an 
 
 original document. Mutual Benefit 
 Life Ins. Co. v. Cannon, 48 Md. 264. 
 See also Bailey v. Burchard, 62 Me. 
 168, where a sealed bill made by the 
 person agreed upon as the parties 
 to make it was held admissible, 
 although not sustained by the oath 
 of the person making it, there being 
 no proof that any omissions were 
 made or that any fraud was 
 practiced. Private memoranda 
 made by a person in a pass book or 
 elsewhere are not admissible in his 
 favor. Golding-jj. Orcutt, 44 Vt. 541. 
 Nor are newspaper accounts of 
 what a person said upon the occasion 
 of the happening of an injury to 
 him through a railway casualty. 
 Downs V. N. Y. Central R. R. Co., 
 47 N. Y. 82.
 
 358 
 
 EVIDENCE. 
 
 [CIIAP. XI. 
 
 ami the poi-soii making tluMu is dcad.^ Thus, in the ca^c last 
 citvcl, a uK'nioniniliini in the handwriting of a deceased note 
 cleikofa l):ink that hr delivered a certain notice was held 
 admissilile to prove tlu' fact of notice. So memoranda made 
 l)y a decciised sherilf, in a book kept hy him for that purpose, 
 were held to be admissible in a suit between third parties, where 
 the entries were made by him in the course of his official 
 duty, and were against his interest at the time.^ So, when 
 the identity of lands sold for taxes as unseated is in ques- 
 tion, manuscript books containing memoranda signed by 
 various persons who liud been deputy sui-veyoi-s, found in 
 the office of a deceased deputy surveyor, arc admissible if 
 they ai)i)ear to be such memoranda as the deputy surveyors 
 ought, l)y the nature of their duty, to have made.^ But 
 
 ' IBank of United States v. Davis, 
 4 Cr. (U. S. C. C.) .o33. In Welsh v. 
 Barrett, 15 Ma-«s. 380 ; North Bank 
 r. AI>bott, 13 Pick. (Miuss.) 465; 
 Shone v. Wiley, 18 id. 558 ,' and 
 Washington Bank v. Prescott, 20 id. 
 339, such entries were held admis- 
 sible, not only when the messenger 
 is dea<l, but also when he has ab- 
 sconded, or from any cause his 
 testimony cannot be obtained. But 
 see Aveiy v. Aveiy, 49 Ala. 193, 
 where the true rule is stated to be 
 that a memorandum made by a 
 person deceased is only admissible 
 when ma<le by him in the due course 
 of business, and as facts which, 
 if living, he would be competent to 
 testify. Contemporaneous entries 
 of acta and occui-rences, as well as 
 copies of instruments, if made in 
 the course of business, or where 
 they would naturally be looked for, 
 are often received a.s evidence, 
 especially where they are sustained 
 by other evidence. Briggs v. Hen- 
 derson, 49 Mo. 531. Entries made 
 upon a bill of lading made by 
 agenta of a railroaxl company, 
 whose dnty it is to indorse thereon 
 the condition of the goods when 
 
 received, are held to be admissible 
 in Georgia. Evans v. Atlanta, &c., 
 R. R. Co., 56 Ga. 498. See also 
 Kerri). Ferrish, 52 Miss. 101, where 
 a pencil memorandum upon an 
 official register or list of lands desig- 
 nating one lot as having been sold 
 to K., was held admissible as tend- 
 ing to support the title of one 
 claiming under K. In Cabat v. Wal- 
 deu, 46 Vt. 11, a book containing an 
 account of expenditures of over- 
 seers of the poor, wJi'icJi it loas their 
 duty to make, was held to be ad- 
 missible in fiivor of the town to prove 
 such expenditures. 
 
 " Field V. Boynton, 33 Ga. 239. 
 A written memorandum, made by 
 an officer in the course of his official 
 duty, which is against his interest, 
 is admissible after his death, as 
 well of the facts against his interest 
 as of other collateral and incidental 
 facts and circumstances contained 
 in it, and that, too, in-espective of 
 the question whether any priority- 
 exists between the officer and the 
 party against whom it is oflFered. 
 Livingston v. Anoux, 56 N. Y. 507. 
 
 ' Russell V. Wemtz, 24 Penn. St» 
 337.
 
 SEC. 129.] MEMOK^ySTDA WHEN MAY BE EVIDENCE. 
 
 359 
 
 Avhile inomonuRla ni:idc by a person who is still living arc not 
 admissible, for want of Ijeing verified on oath or its equiva- 
 lent, or tracealile to the i)a]'ty against whom it is offered, the 
 benefit of its permanence is not always lost to justiee. Thus 
 a witness who has drawn up a written narrative, or made a 
 written memorandum of a matter or transaction, may in 
 many cases use it while under examination as a script to 
 lefresh his memory.' Thus a witness may refer to his account 
 
 ' Sandwell v. Sandwell. Comb. 
 445 ; Holt, 295 ; Church v. Perkins, 
 3 T. R. 749 ; Burton v. Plummer, 2 
 Ad. & El. 341 ; Beech v. Jones, 5 C. 
 B. (396 ; Smith v. Morgan, 2 Moo. & 
 R. 257 ; 2 Phill. Ev. 480 etseq., 10th 
 ed.; Dyer v. Best, 4 H. & C. 189 ; 
 Howland v. Willetts, 5 N. Y. 219 ; 
 Huff V. Bennett, 6 N. Y. 237 ; Hal- 
 laday v. Marsh, 3 Wend. (N. Y.) 
 142 ; Green v. Disbrow, 7 Lans. (N. 
 Y.) 881 ; Gilbert v. Sag-e, 5 id. 290 ; 
 Marclay v. Shultz, 29 N. Y. 351 ; 
 Philbin v. Patrick, 6 Abb. Pr. (U. 
 S.) 284. The Eng-lish rule is, that 
 a witness may use a memorandum, 
 or any book or paper, toi'efresli his 
 memory if he can afterwards swear 
 to the fact from recollection ; but if 
 he cannot so swear otherwise than 
 as finding- it in the book, then it 
 must be produced. Manghan v. 
 Hubbard, 2 M. & Ry. 5. In this 
 country, however, a memorandum 
 is never evidence per se of the facts 
 stated in it, but may be used by the 
 witness to i-efresh his memory. 
 Courtnay v. Com., 5 Rand. (Va.) 
 6G6 ; Farmers' Bank t\ Whitehall, 
 16 S. &; R. (Penn.) 90 ; Cummings v. 
 Fisher, Anth. (N. Y. ) 1. Where an 
 action was brought for goods sold, 
 and the jilaintiff offered proof that 
 the entries in his books, charging 
 the defendant with the goods, were 
 made by his clerk, who had gone to 
 the West Indies, held that such 
 evidence was not competent to es- 
 tablish the claim. Kenedy v. Fair- 
 
 man, 1 Hayw. (N. C.) 458; White- 
 field V. Walk, 2 id. 24. So, where 
 the age of a defendant had been 
 written in a Bible, held that this 
 memorandum was not the best evi- 
 dence, and the age might be proved 
 
 by parol. ti. , 1 
 
 McCord(S.C.), 164 ; Butler «. Young, 
 3 Bibb (Ky.), 520 ; Berry v. Waring, 
 2 H. & G. (Md.) 103. See post, 
 notes And a memorandum by a 
 district attorney, of the confession 
 of a prisonei", need not be pi-oduced ; 
 but he may give oral evidence of 
 such confession. Patton v. Free- 
 man, Coxe (N. J. Eq.), 113. In 
 South Carolina, the testimony of a 
 witness who swears positively from 
 written memoranda, though they do 
 not call to his memory the facts, is 
 held not only admissible, but better 
 evidence than unaided i-ecollection. 
 Pearson v. Wightman, 1 Rep. Const. 
 Ct. (S. C.) 344; Haig iv Newton, id. 
 423 ; Sharp v. Bingley, id. 373. See 
 Brown v. Anderson, 1 Mon. (Ky.) 
 198 ; Guy v. Mead, 22 N. Y. 462. 
 The general principle, however, 
 deducible from a majoi-ity of the 
 cases in this covmtry is, that the wit- 
 ness may inspect notes or memo- 
 randa to refresh his memory, and 
 then, if he can with a safe con- 
 science swear to the facts indepen- 
 dent of the memorandum, in other 
 words, if he is then able to remem- 
 ber the facts, he may testify. He re- 
 freshes his memory from his memo- 
 randa, and then swears from recol-
 
 360 
 
 EVIDKNCE. 
 
 [CHAr. XI. 
 
 hooks, or his cash book,' or to letters written by himself 
 nl;itiiiir to the trajisaetioii,^ or even to a l)ill of particulai-s or 
 iiii'iiior;uulmii not made by himself, if upon reading it he is 
 thi'ii able to recollect and testify to the facts contained 
 therein.^ If the original memorandum is destroyed, a wit- 
 ness may refer to a copy thereof made by himself or under 
 his ilircction and supervision." Thus, in the case last cited, 
 
 lection ; but ho will not be permitted 
 to reuil his iniMnoranda to the jury. 
 Jiiiiiatii Bank ?«. Brown, 5 S. & R. 
 (Pt'nn.)87; RobertvSon t». Lynch, 18 
 John. (N. Y.) 451 ; Howland^J. Sher- 
 iff of Qneens Co., 5 Sandf. (N. Y.) 
 210 ; "Wood t). Ambler, 8 N. Y. 170. 
 ' Mear-ham v. Pell. SI Barb. (N. 
 Y.)6.5; Ding-gs v. Smith, 4 J. & S. 
 (N. Y. Sup. Ct.) 283. But if he 
 Ikus first sworn positively to the 
 fa<-t.s he cannot refer to his books 
 for the puiqiose of corroborating his 
 testimony, as in that case his testi- 
 mony and memory is wholly inde- 
 ])ondent of the memoranda. Sack- 
 ett p. Spencer. 29 Barb. (N. Y.) 180. 
 But see Townsend M'f 'g Co. v. Fos- 
 ter, 41 N. Y. 620, where it was held 
 that, whore a memorandum of what 
 took plaoo at a certain interview 
 wa-s made on the evening of the day 
 whon it transpired, and it corrobo- 
 rates the testimony given by the 
 wtnesa, it may be given for that 
 purpose. So, in McCormick v. 
 P.im., &c., R. R. Co , 49 N. Y. 303, 
 it wius hold that, after proof of the 
 facts contained in a memorandum, 
 the paper itself may be read to the 
 jury. 
 
 * Lewis r. Ingersoll. 1 Keyes (N. 
 Y.). 347. And if the oi-iginal memo- 
 ran<lum is lost, he may refresh his 
 momoiy, if the copy was made by 
 him.«elf or under his supervision, 
 from a copy of it. Felkins v. Bakor, 
 6Lans. (N. Y.) 516. 
 
 ' Smith P. Ramlall, 3 T. & C. (N. 
 Y.) 798 ; botfiie v. Newcomb. 58 N. 
 
 Y. 674 ; ard 1 T. & C. (N. Y.) 251. 
 In Hotchkiss v. Mather, 48 N. Y. 
 478, it was held that the plaintiff, a 
 witness upon the stand, might re- 
 fresh his memory from a memoran- 
 dum made by the defendant. 
 
 * Filkins v. Baker, 6 Lans. (N. 
 Y.) 516; Gi-een v. Disbrow, 7 id. 
 381. In State v. Collins, 15 S. C. 
 373, a witness in a capital case who 
 was an employee in a hosjiital, was 
 permitted to refresh his memoiy by 
 referring to a contemporaneous 
 record of the hospital, following 
 Berry v. Jourdin, 11 Rich. (S. C.) 
 67, and distinguishing the case from 
 Furman v. Peay, 2 Bailey (S. C), 
 394 ; State v. Cardoza, 11 S. C. 
 239 ; and Bank v. Zorn, 14 id. 444. 
 See also Cameron v. Blackman, 39 
 Mich. 108. In Cooper v. State, 59 
 Miss. 267, a witness who was an 
 old man, whose memory was im- 
 paired, was permitted to refresh his 
 memory from a paper wiitten by 
 him at the time. In State tJ. Miller, 
 53 Iowa, 154, it was held that a 
 witness might refresh his memory 
 by referring to the notes of his 
 testimony taken l)efoi'e the grand 
 jury. See Memphis, &c., R. R. Co., 
 V. Maples, 63 Ala. 601, where it 
 was held that before a witness can 
 refresh his memory from books or 
 papers it must be shown th>>,t he 
 either wrote the enti-ies or had 
 knowledge of their accuracy, even 
 though the books, etc., were all the 
 time in his custody. See also Acklin 
 V. Hickman, 63 Ala. 494, where it was
 
 SEC. 129.] MEMORANDA WHEN MAY BE EVIDENCE. 361 
 
 the pluiiitirt', who was ii forciiuiu and cutter in the defendant's 
 shop, kept the account of his work upon slips of paper. 
 These slips he took home with him every week, and every 
 Saturday night ho would figure up the number of hours he 
 had worked, and his wife would set it down for him upon an- 
 other paper, and the original slips were destroyed. He re- 
 freshed his memory from the C()[)y made by his wife, and the 
 court held that it was proper for him to do so, as under the 
 circumstances the copy might be considered as the original 
 memorandum made at the time by himself, or by his direc- 
 tion, which, in the language of Miller, P. J., " is the same 
 thing under the circumstances as if he had personally done 
 it." In another New York case,^ the plaintiff was tried and 
 convicted of an assault with intent to kill. Upon the trial a 
 police surgeon testified that when the complainant was 
 brought to the station-house, he made a statement to him as 
 to the persons who had assaulted him ; that the statement 
 Avas written down upon a slate ; that he thought names were 
 mentioned in it, but could not remember what they were. 
 A sergeant was then called, who testified that the slate was 
 handed to him by the surgeon ; that he copied it into the 
 station-house blotter, and then rubbed out what was on the 
 slate. It was held that the statement contained in the blotter 
 was properly received in evidence, as tne origmal memoran- 
 dum had l)een ei-ased from the slate and destroyed. In this 
 case the rule is carried nuich further than the English cases 
 have gone. In those cases the i ule seems to be, that a witness 
 may refresh his memory by a copy of a memorandum wJten 
 after looking at the copy he is able to swear jpositively to the 
 facts stated therein from his 02vn recollection, or that he knew 
 the facts to he as stated tJierein at the time? 
 
 held that a witness may refresh his ^ Duchess of Kingston's Case, 20 
 
 recollection from a memorandum How. St. Tr. 619 ; Tanner v. Taylor, 
 
 when it was made by him, or known cited in Doe v. Perkins, 3 T. R. 754. 
 
 and reeogTiized by him as stating In Howard v. McDonough, 77 N. Y. 
 
 the facts truly, when after such ex- 592, the court laid down the rule aa 
 
 amination he can testify to the facts to the use of memoranda as follows : 
 
 as a matter of independent recollec- "The law as to the use of memo- 
 
 tion. randa by witnesses while testifying 
 
 ' Adams n. The People, 3 Hun is quite well settled in this State. 1. 
 
 ^N. Y.), 654. A witness may, for the pui-pose of
 
 ar.: 
 
 KVIDKNCE. 
 
 [chap. XI. 
 
 Ill any ovont, it is qucstioiiahlc whether the copy should 
 be UMil, so l()n<'' as the original is in existence, and its 
 
 n'fi-*'shintr liis momory, use any 
 iiu'iiun-iuiiliiiii, wlu'thfir nuule by 
 biiiiitolf or umithtT, written or print- 
 ♦••l, u;iil when his nicinory has thus 
 l>een ii'fiv.shod, hu mnst testify to 
 farts of his own knowledg-e, the 
 memorinnluui it.self not being evi- 
 «l«*nce. 2. When a witness has so 
 f*r forpottoai the fa<'ts that he can- 
 not rt'i-all thcin, oven after looking 
 at a inenioraniluni of them, and he 
 lestities that hti oure knew them ami 
 niaxlc a memorandum of them at the 
 time or soon after ihey transjiired, 
 whieh he intended to make correctly, 
 and which he believes to be con-ect, 
 Hueh memorandum, in his own hand- 
 writing, may be received a.s evidence 
 of the fa<-ta therein contained, al- 
 though the witness has no present 
 recollection of them. 3. Memoranda 
 i:::'y be used in other cases which 
 «lo not i)reci.sely come under either 
 of the foregoing heads. A store of 
 gooils is wrongfully seized, and an 
 action is brought to i-ecover for the 
 conversion. There ai-e thousands 
 of items. No witness could carry 
 in his mind all the items and the 
 valiivs to be attached to them. In 
 Kuch a ca.'te, a witness may make a 
 list of all the items and their values, 
 and he may aid his memory while 
 testifying by such list. He must be 
 able to state that all the articles 
 named in the li.st were seized, and 
 that they were of the values therein 
 stated, ami he may use the list to 
 enable him to state the items. After 
 the witness has testified, the memo- 
 ran<lum which he ha.s used may be 
 put in evidence, not as jjroving any- 
 thing of itself, Imt as a detailed 
 Ptatement of the items testified to by 
 the witness. The manner in which 
 the niPmnrandum, in such a case, 
 may be used b vei-y much in the 
 
 discretion of the trial judge. He 
 may i'e<j[uire the witness to testify to 
 each item separately, and have his 
 evidence recoi-ded in the minutes of 
 the trial, and then the introduction 
 of the memorandum will not be im- 
 portant ; or he may allow the witness 
 to testify quite generally to the 
 items and their values, and receive 
 the memorandum as the detailed i-e- 
 sult of his examination, leaving to 
 the adverse jjarty a more minute 
 cross-examination. "Without the use 
 of a memorandum in such cases, it 
 would be difficult, if not impossible, 
 to conduct a trial involving the ex- 
 amination of a large number of 
 items. Driggs v. Smith, 36 N. Y. 
 Superior Coui-t, 283 ; McCormick v. 
 Penn. Cent. R. R. Co., 49 N. Y. 303 ; 
 Acklin V. Hickman, 63 Ala. 594 ; 35 
 Am. Rej). 54. In Com. v. Ford, 130 
 Mass. 64, it was held that a news- 
 paper reporter, called as a witness, 
 may refresh his memory as to an 
 occurrence in his presence by re- 
 fei-ring to a printed report of it, 
 written by him at the time. "We are 
 of opinion," said Endicott, J., "that 
 the witness should have been al- 
 lowed, for the purpose of refreshing 
 his memory, to look at the printed 
 report, which he stated, as of his 
 own knowledge, was printed sub- 
 stantially as made by him. It was 
 not contended that the written or 
 pidnted repoi-t or any portion of its 
 contents could be put in evidence. 
 It was clearly incompetent, in any 
 a.spect of the case, as presented. 
 The i-ule, therefore, that to prove by 
 oral testimony the contents of a 
 paper, relied on as evidence, it is 
 necessary first to show that it has 
 been lost or destroyed, or that upon 
 <liligent search it cannot T)e found, 
 has no application to this case. If
 
 SEC. 129.] MEMORANDA — WHEN MAY BE EVIDENCE. 363 
 
 absence unexplained ; for the rule requiring the production 
 of the best evidence is eqiiallj ajjplicable, whether a pajoer 
 
 such rule did apply, it is difficult to 
 see why it was not competent for the 
 defendant to prove that it was the 
 custom in the Herald office to de- 
 stroy all such original written re- 
 ports after printing them ; but that 
 question it is not necessary to con- 
 sider." 
 
 In order to refresh the recollection 
 of a witness, it is not important ttiat 
 the paper, book, or tiienMrand^im 
 should have been written or printed 
 hy the lo'itness himself, or that it 
 should he an original lorltirig. It is 
 sufficient if he saw it ivhile the facts 
 stated therein were fresh in his 
 memory, and he knows that they are 
 correctly transcribed or printed. 
 Upon inspecting it, he can state the 
 facts if thereby called to his recol- 
 lection. Chapin v. Lapham, 20 Pick. 
 (Mass.) 467. 
 
 In Coffin 1). Vincent, 12 Cush. 
 (Mass.) 98, which was trespass for 
 taking and carrying away certain 
 sheep, the defendants attempted to 
 prove that the sheep were taken by 
 them as field-drivers, while running 
 at large, and for that cause were 
 taken up and impounded. To prove 
 this, they called a witness to show 
 the contents of the notice posted up 
 by them as field-drivers, which 
 notice had been lost or destroyed ; 
 and in testifying to its contents it 
 was held that the witness could re- 
 fresh his recollection by referring to 
 a form of such notice, which, though 
 not made by himself, he had com- 
 pared with the notice posted up, 
 and found them to correspond. In 
 that case, the general rule applicable 
 here is well stated, though the case 
 differs from this in the fact that the 
 contents of an original paper were 
 sought to be proved, and therefore 
 it was necessary to show that it had 
 
 been lost. In this case, the original 
 written report of the witness could 
 not have been used in evidence. In 
 Kensington v. Inglis, 8 East, 273, a 
 license to trade with the enemy had 
 been lost. A witness was called, 
 who had made an entry of it in his 
 memorandum book for the private 
 information of himself and his 
 employer, which book was not pro- 
 duced in evidence ; and it was held 
 that the witness might testify to the 
 contents of the license from memory, 
 although the book was not produced, 
 for if in court, it would not have 
 been evidence per se, but could have 
 been used by the witness only to 
 refresh his memory. 
 
 The case most nearly resembling 
 the case at bar is Home ?). Mac- 
 kenzie, 6 CI. & Fin. 628. A surveyor 
 made a survey and report, which he 
 furnished to his employers, and 
 being called as a witness he pro- 
 duced a printed copy of this report, 
 on the mai'gin of which he had two 
 days before, to assist him in giving 
 his explanation as a vdtness, made 
 a few jottings. The printed report 
 had been made up from his own 
 original notes, of which it was in 
 substance, though not in words, a 
 transcript, and it was held that he 
 might look at the printed copy to 
 refresh his memory. In Rex v. 
 Duchess of Kingston, 20 How. St. 
 Tr. 355, 619, a witness was allowed 
 to use a copy of his own memoran- 
 dum made by another person in his 
 presence. In Burton v. Plummer, 2 
 Ad. & El. 841, a clerk of a tradesman 
 entered the transactions in trade, as 
 they occurred from his own knowl- 
 edge, and the tradesman copied 
 them into a ledger in the presence 
 of the clerk, who checked them as 
 they were copied. It was held that
 
 3lil 
 
 KVIUKNCE. 
 
 [chap. XI. 
 
 M priKluct'd as evideticc /// /Ave//; or is merely used to 
 n/rts/i the mnnnn/.^ H" ll>«' '"Py i-^ ^"1 iiupeifcct ex- 
 trnct, or is not prov.il to be a corrcot copy, or if the 
 witiu-ss has II.) independent nrollcction of tho facts nar- 
 ratnl thiniii, thr ori-iiial must be uscd.^ In an English 
 
 tho clerk miffht use the entries in 
 the Ii'dtfer to wfivsh his memory. 
 Ihouffh the wiuite-lMiok wjusnot pro- 
 tlueeil nor its iihsence accounted for, 
 the i'ntries in the ieil^jer having 
 iH'eii nm.le a.H l»y the clerk hims«-lf, 
 ll \\n» in the natJiivot'the ilnplicate 
 oripnal, ami is similar to the csise 
 at liar, wheii' the written report of 
 the witness was printeii in the news- 
 paper, to his own knowledge sub- 
 stantially as made by him. See also 
 IJuri-ough r. Martin, 2 Camp. 112; 
 ■WikmI r. Cooper. 1 Car. & K. 64.5 ; 
 D«M« r. Perkins. HT. R. 749 ; Regina 
 p. Langton, 2 Cj. B. D. 2%. 
 
 In Huff V. Bennett, 6 N. Y. 337, 
 it was .K«id : " It is not necessary 
 that such writing should have been 
 matle by the witness himself, or that 
 it should be an original writing, pro- 
 vided after inspecting it he can 
 Hjwak to the facts from his o^vn 
 recollection." So a witness may be 
 allowed to refit'sh his memory from 
 not«'s taken by counsel at a foi-mer 
 trial ; Regina v. Philpotts, 5 Cox C. 
 C 329; or from his disjiosition, or 
 a copy of the same. Smith v. Mor- 
 gan. 2 Moo<l. & Rob. 257 ; George 
 ■p. Joy, 19 N. H. 544. And in Henry 
 t». Lee, 2 Chit. 124, where a witness 
 wax allowed to refresh his memory 
 from adfx-innent not written by him, 
 Lonl Ki.i,KNHoRoi-(iHsaid : "If upon 
 looking at any dm-ument he can so 
 far n-fn-sh his memory as to recol- 
 leit a cin^umstanci'. it is sufficient ; 
 and it makes no difference that the 
 mj-morandum was written by him- 
 wlf ; for it is not the memorandum 
 that i.M the evidence, hut the recol- 
 lection of the mitjiexs." Com. v. 
 
 .Jeffs. Mass. S. C. 1882 ; Queen v. 
 Langton. 2 Q. B. Div. 29(3 ; State v. 
 Collins, 15 S. C. 373 ; State i). Rawls, 
 2 N. & McCord (S. C). 331 ; Berry v. 
 .Jordon, 11 Rich. (S. C.) 67. But see 
 State V. Cordoza, 11 S. C. 239; 
 Bank v. Zorn, 14 id. 444. In South 
 Carolina it seems that the memo- 
 randa must be contemiioraneous 
 wnth th(! happening of the event. 
 State 1). Collins, ante; Ballard v. 
 Ballard, 5 Rich. (S. C.) 495. 
 
 ' Burton v. Plummer, 2 Ad. & El. 
 344. See also Jones v. Stroud, 2 C. 
 & P. 196. 
 
 ^ Doe V. Perkins, 3 T. R. 749, ex- 
 plained by Patteson, J., in 2 Ad. & 
 El. 215; R. V. Hedges, 28 How. St. 
 Tr. 1367, 2Jer Lord Ei.lenborough ; 
 Solomons v. Camjibell, cited 1 St. 
 Ev. 177, 178, n., per Abbott, C. J. 
 Original entries and memoranda, 
 v\ith a suppletory oath, may be read 
 in evidence, though not made in the 
 course of business, and though the 
 witness has no recollection as to 
 the facts they recite. Thus, the 
 question being whether an indorse- 
 ment of payment on a note was 
 made in time to take the case out of 
 the Statute of Limitations, a written 
 computation made at a subsequent 
 date, with the purpo.se of determin- 
 ing the amount then due, and in 
 which no such payment was in- 
 cluded, was held admissiljle with 
 the oath of the party making it. 
 Guy V. Mea<l, 22 N. Y. 462. The 
 question being as to the length of 
 credit given, the defendant, on 
 notice from the plaintiff", produced 
 the original, the bill of sale, on 
 which was minuted the time of
 
 SEC. 129.1 MEMORANDA WHEN MAY BE EVIDENCE. 365 
 
 case,^ the plaintiff's clerk, being called to prove the order 
 and delivery of certain goods, sought to refresh his memory 
 by some entries in a ledger. The transactions in trade had 
 been noted l>y the clerk in a waste-book as they occurred, 
 and the plaintiff, day by day, had copied the entries into the 
 ledo-er, each entry being at the time checked by the clerk. 
 Under these circumstances the court regarded the ledger as 
 an original, and allowed the witness to refresh his memory 
 thereby without accounting for the absence of the waste-book. 
 And in another case,- where a surveyor was permitted to 
 refresh his memory by a printed copy of a report furnished by 
 him to his employers, and compiled from his original notes, of 
 which it was su >stantially, though not verbally, a transcript, 
 the report seems to have been treated in the light of an 
 orio-inal document ; and although it contained some marginal 
 
 credit. This evidence was held not 
 to be overcome by the testimony of 
 the plaintiff's book-keeper, which 
 tended to show that he had made 
 such memoranda without instruc- 
 tions from the plaintiff so to do. 
 Leeds v. Dunn, 10 N. Y. 469. The 
 plaintiff having testified that a cer- 
 tain agreement was made in the 
 presence of H., and that H. at the 
 time made a written statement of 
 the mode of settlement of the parties' 
 accounts, upon the basis of which 
 such agreement was made, it was 
 held that it was competent for the 
 plaintiff to introduce in evidence, as 
 corroborative of his own testimony, 
 such written statement. Norton v. 
 Downer, 33 Vt. 26. A memoran- 
 dum, though not signed by the 
 party, is admissible in connection 
 with his admissions that it contained 
 the contract. Hosford v. Foote, 3 
 Vt. 391. If a question of time is 
 material, a writing which the plain- 
 tiff testifies that he drew up in. con- 
 nection with a settlement with the 
 deteudaul, aaa snowed to the latter, 
 who made no objection to it, is ad- 
 missible in evidence to fix the time 
 
 in dispute, although it is not found 
 that the paper was in fact shown to 
 the defendant, or that the date upon 
 it, which tends to fix the time, is 
 correct. Goodnow v. Parsons, 36 
 Vt. 46. A memorandum of an oral 
 agreement, written and signed by 
 the plaintiff upon his private memo- 
 randum book, for his own private 
 reference, is not conclusive upon 
 any one, but is at most a piece of 
 evidence not admissible in favor of 
 the plaintiff, except when accom- 
 panied by proper parol proof, and 
 not competent against him except 
 as an admission, the force of which 
 is to be determined by proof of the 
 circumstances under which it was 
 made. Stannard v. Smith, 40 Vt. 
 513. 
 
 ' Barton v. Plummer, 2 Ad. & El. 
 344. 
 
 ^ Home V. McKenzie, 6 CI. & Fin. 
 628, 630, 645. See also Topham v. 
 Macgreg-or, 1 C. & Kir. 320, where 
 the writer of an article in a news- 
 paper was allowed to refresh his 
 memory by the paper, his MS. being 
 proved to be lost.
 
 'MUi 
 
 KVlDKNCi:. 
 
 [ciiAr. xr. 
 
 iiulrs, iniulo only two days l.clbie, it was still allowed to be 
 UMil, ihc's*' notes coiisislini; of more calculations, which the 
 witness, if time were given hiui, could repeat without their 
 aid. 
 
 8«c. 130. Memorandum should be made by Witness. 
 
 As a i:en«ral lule, before a witness can refresh his mcnior}' 
 bv looUiuiT :it nienioranda, it seems to be further necessary 
 that they .should have been made either bi/ the witness liim- 
 -.v\\\ ov by Si tine person in /t is presence,^ or that he should 
 liave examined them while the facts were fresh iu his memory, 
 and .should then have known that the particulars therein 
 mentioned were correctly stated. In accordance with the 
 l.Lst part of this rule, a witness has been allowed to refer to a 
 lof-book, which, thouirli not written by himself, had, from 
 time to lime, and while the occurrences were recent, been 
 c.xamineil l)y him.- So, where it has been material to prove 
 the date of an act of bankruptcy, the court has several times 
 permitted witnesses to refer to their depositions, taken 
 bhortly after the bankruptcy, though such depositions were 
 of course not wiitten by themselves, but merely signed by 
 them.' So, if the witness has checked an entry made by 
 
 ' Diichesfl of Kingston's Case, 20 
 How. St. Tr. (519. 
 
 ' liurn>uf,'hs v. Martin, 2 Camp. 
 112. In Gilchi-i-st v. Urooklyn, &c., 
 A.HMOfiation, 39 N. Y. 49,'), it was 
 h<!l(l that, in order to render a mem- 
 orandum admi.'*.sible, the witness 
 should identify the hand\vriting' as 
 hi.s own. Thus, in that ca.se, in an 
 artion to recover the purcha.se price 
 of a quantity of potatoes, alleged 
 to have been jmrchased by the 
 plaintiff a.s agent for the defendant, 
 and shipi)ed to the latter by canal, 
 the defendant claimed a deficiency 
 in quantity a.s .shown by the weight 
 of the boat and cargo, at a weigh - 
 lock upon the canal. The defend- 
 ant called a witness, who testified 
 that, in his beli'-f, the entrj- in the 
 weigh-book waa in hia handwrit- 
 
 ing, and, if so, he weighed the boat, 
 and it was weighed correctly ; he 
 then stated the weight from the en- 
 tiy. On cross-exaniination it ap- 
 peared that the witness had no 
 connection with the weighing lock, 
 but occasionally weighed boats ; 
 that he could not swear that the en- 
 try was in his handwriting, and that 
 he had no recollection of the matter 
 independent of the entry. Lines 
 were dra\vn over the entry in the 
 book, and an entry appeared under 
 date two days later, in another hand, 
 of the weight of the boat. The 
 plaintiff moved to strike out the 
 evidence as to weight, which was 
 refused, which the court held to be 
 error. 
 
 ' Smith V. Morgan, 2 M. & Rob. 
 257 ; Wood v. Cooper, 1 C. & Kir.
 
 SEC. 131.] MEMORANDA WHEN MAY BE EVIDENCE. 367 
 
 another person ; ' or has actually seen money paid and a 
 receipt given ; ^ or has read a memorandum to a party who 
 has assented to its terms ; '^ in all these, and similar cases, 
 he will be allowed to look at the document itself, for the 
 purpose of refreshing his memory as to the facts mentioned 
 therein. In some cases a greater latitude has prevailed,, 
 and witnesses have been allowed to refresh their memories 
 from the brief notes of counsel taken at a former trial, pro- 
 vided they could afterwards speak from recollection, and not 
 merely from the iiotes.^ 
 
 Sec. 131. Memorandum may be used, although its Contents would not 
 
 be Admissible. 
 
 As a writing, used to refresh the memory, does not thereby 
 become evidence of itself, it is not necessary that it should 
 even be admissible ; and therefore, a receipt which cannot be 
 read for want of a stamp, may yet be referred to by the witness 
 in giving his evidence.^ Neither is it essential, when notes 
 are used by a witness who is called to prove a conversation, 
 a speech, or the like, that they should contain a verbatim 
 account of all that was uttered. Thus, where it appeared 
 that a short-hand writer had taken a verbatim note of such 
 parts of an address as he deemed material, and was merely 
 able to swear to the substantial correctness of the remainder, 
 he was permitted to read the whole, although it was strongly 
 urged that, as by the witness's own showing the note was a 
 partial one, the fullness, and consequent accuracy, of which 
 rested on his private opinion of the materiality of what was 
 spoken, he was not entitled to use it at all, but was bound to 
 depend on his memory alone.^ If the witness has become 
 
 645; Vaughan v. Martin, 1 Esp. similar case. See also Henry v. 
 
 440. Lee, 2 Chitt. 124. 
 
 ' Burton v. Plummer, 2 Ad. & El. " Maugham v. Hubbard, 8 B. & 
 
 *^41. C. 14 ; Jacob v. Lindsay, 1 East, 
 
 * Rambert v. Cohen, 4 Esp. 213. 459 ; Rambert v. Cohen, 4 Esp. 213, 
 Bolton V. Tomlin, 5 Ad. & El. per Lord Ellenborough ; Catt v. 
 
 856 ; Jacob v. Lindsay, 1 East, 459 ; Howard, 3 Stark. 3, per Abbott, 
 
 R. V. St. Martin's, Leicester, 2 Ad. C. J. 
 
 & El. 210. « R. V. O'ConneU, Armstr. & Trev. 
 
 * Lawes v. Reed, 2 Lew. C. C. 165-167. 
 152, citing Balme v. Hutton as a
 
 3(18 EVIDKNCE. [CIIAP. XI. 
 
 blinil, or from other cause is unable to read the eutiies, the 
 |»;i()( r may he read over to him, iu order to excite his recol- 
 lirlion.' 
 
 Sec. 132. Witness need not have Recollection, Independent of the 
 Memorandum. 
 
 In ordrr that a docuincnt may he used as the refresher of 
 iiu-mory. it is hy no means necessary that the witness, after 
 ha\ inj^ sww it, .sliould liave any independent recollection of 
 the facts mentioned therein, or connected therewitli ; it is 
 suflicient if he remembers that he has seen the paper before, 
 and that, when he saw it, lie knew its contents to be correct ; 
 or even il", entirely forgetting the circumstances themselves, 
 an<l the fiet of his having seen the paper, he can still, in 
 conse(juen<e of recognizing his signature or writing upon 
 it, vouch for the accuracy of the memorandum, or swear to 
 the particular futt in question.^ Thus, where a clerk entered 
 notes in a bill-book at the time when they were delivered 
 and in th(^ due coui'se of business, and upon being called as 
 a witness he was unable to testify, independently of the entry, 
 what the contents of the notes were, it was held that the 
 cntiies were admissible.^ So, where an agent, who had made 
 
 • 
 
 ' Catt n. Howard, 3 Stark. 3, per time when the note was given, and 
 
 Abbott, C. J. ; Vaughan v. Martin, tend strong-ly to corroborate the 
 
 1 F^p. 440, -per Loud Ke.vyon. testimony of White, who relied upon 
 
 ' (ruy V. Mead, 22 N. Y. 462 ; the entries, and who would not 
 
 Man-hiy v. Shultz, 29 id. 346; swear positively that the words 
 
 Mearham v. Pell, .51 id. 65 ; Wilde were not in the notes, independent 
 
 t>. Hi-xter, 50 Barb. (N. Y.) 448; of them. They were not in the 
 
 Heath v. West, 20 N. H. 191. If a nature of naked hearsay evidence 
 
 ■witne.««s, upon looking at a memo- or statements in writing- of third 
 
 randum ma<le by him at the time, parties, but entries of transactions 
 
 is able from it to testify to the made at the time by the clerk of 
 
 delivery of goods, the testimony is the party in the regular course of 
 
 admissible, although he ha.s no business. In Marclay v. Shultz, 29 
 
 , present recollection of the transac- N. Y. 346, it was held to be compe- 
 
 tion except that afforded by the tent to read an entry made by a 
 
 mf-morandum, which is not itself witness of any fact material to the 
 
 competent evidence. Dugan v. issues, if made at or near the time 
 
 Mnhoney, 11 Allen fMris?:.). r.72. when the fact occurred, and he can 
 
 » K-, 
 
 Kpnnody V. Crandall, 3 Lans. swear it was made correctly. See 
 (N. Y.) !. Miller, P. J., saying: also Guy v. Mead, 22 N. Y. 462; 
 -These entries were made at the Halsey v. Sinsebaugh, 15 N. Y.
 
 SEC. 132.] ME310RANDA — WHEN MAY BE EVIDENCE. 
 
 369 
 
 a parol lease, and entered a memorandum of the terms in a 
 book, stated that he had no memory ot" the transaction but 
 from the book, though on reading the entry he entertained 
 no doubt that the fact really happened, it was held sufficient ;^ 
 and a barrister, called to prove that a witness had materially 
 varied his account since the last trial, has been allowed to 
 refresh his memory by the notes on his brief, though he had 
 no independent recollection of what took place on the former 
 occasion.^ So, where a banker's clerk is shown a bill of ex- 
 change, which has his own writing upon it, from which he 
 knows and is able to swear positively that it passed through 
 his hands ; or a witness, from seoing his own signature to the 
 attestation of a decd,^ or to any species of document,^ says 
 that he is therefore sure that he saw the party execute it, 
 this is sufficient proof of the execution, though he adds that 
 
 485, within tlie rule laid down in 
 the authorities last cited. The bill- 
 book introduced contained an origi- 
 nal memorandum made by the wit- 
 ness when the facts stated trans- 
 pired, and was clearly admissible 
 evidence." See also Hildreth v. 
 Lowell, 11 Gray (Mass.), 345 ; Briggs 
 V. Rafferty, 14 id. 525 ; Perkins v. 
 Augusta, &c., Co., 10 id. 312. Where 
 the maker and the holder of a note 
 had mutually compared memo- 
 randa of the payments made on 
 the note, in an action in favor of 
 the estate of the deceased holder, 
 such memorandum is admissible to 
 prove payment. Meyer v. Reich- 
 ardt, 112 Mass. 108. 
 
 ' Haven v. Wendell, 11 N. H. 
 112 ; R. V. St. Martin's, Leicester, 
 2 Ad. & El. 210. See also Haig v. 
 Newton, 1 Const. R. (S. C.) 423; 
 Sharpe v. Bingley, id. 343 ; Maug- 
 ham V. Hubbard, 8 B. & C. 14. In 
 Bank of Tennessee v. Caman, 7 
 Humph. (Tenn. ) 70, a notary's book 
 contained an entry of protest for 
 non-payment, and of notice given, 
 and the notary stated that he was 
 in the habit of making such entries 
 
 24 
 
 at the happening of the event. It 
 was held that his belief, based upon 
 such entry, was good evidence, and 
 that he need not swear that he had 
 a recollection of the protest and 
 notice. 
 
 "" R. V. Guinea, Ir. Cir. R. 167, 
 per Crompton, J. 
 
 ^ In Briggs v. Rafferty, 14 Gray 
 (Mass.), 525, the freight books of a 
 i-ailroad company, supported by the 
 testimony of the clerk who made 
 the entries therein, that he had no 
 doubt that the facts stated therein 
 wei-e correct, are admissible, al- 
 though he swears that he has no 
 personal recollection of the facts. 
 See also Perkins v. Augusta Ins., 
 &c., Co., 10 Gray (Mass.), 312 ; Par- 
 sons V. Manufacturers' Ins. Co., 16 
 id. 463. 
 
 ^ Maugham v. Hubbard, 8 B. & 
 C. 16, per Bayley, J. ; R. v. St. 
 Martin's, Leicester, 2 Ad. & El. 213, 
 per Taunton, J. ; Russell v. Coffin, 
 8 Pick. (Mass.) 143; Jackson v. 
 Christman, 4 Wend. (N. Y.) 277; 
 Pigott V. Holloway, 1 Binn. (Penn.) 
 436 ; Smith v. Lane, 12 S. & R. 84 ; 
 Clark V. Vorce, 15 Wend. (N. Y.) 193.
 
 370 EVIDENCE. [CIIAP. XI. 
 
 he lias no recollection of the lact.' In a ]\I:issacliiisctts case,' 
 in an action against an ollicer for not returning an execution, 
 the tlockct of the attorney who took out the execution con- 
 taininir .in eiiliv thai it was delivered to the officer on a 
 certain ihiv, taken in connection with the testimony of the 
 uttonu'y that he should not have made the entry unless he 
 had delivered the execution or known of its delivery, was 
 held snliieicnt evidence that the execution was so delivered, 
 althouiih he had no recollection of making the entry or 
 dcliveriiii; the execution; and the same rule was adopted 
 where a coiist:il)l(' ni;ide a return of the service by him of a 
 notice issued l>y a city council, under au ordinance of the 
 city, hut where he swore that he had no recollection of the 
 fact of service except from the circumstances that the return 
 was wiitten and signed by him f and also as to entries made 
 in the hooks of a hank by a cashier, treasurer or clerk, when 
 the entries arc identilied by them, although they have no 
 personal recollection of the facts.^ So the freight books of 
 a railroad company, supported by the testimony of the per- 
 son making the particular entries therein that he has no doubt 
 that the facts stated therein are correct, although he has no 
 other knowledge thereof than the circumstance that the 
 entry was made.^ 
 
 And it seems that such entries are admissible, although the 
 clerk or person called to verify them made only part of them, 
 and has no personal recollection of the facts beyond that 
 allbrded by the entries, especially when the witness can swear 
 that from the course of business he believes the entries state 
 the factb.* 
 
 Sec. 133. When Opposite Party is Entitled to see the Memorandum. 
 
 Ill all cases wher(! documents are used at the trial for the 
 puri)ose of refreshing the memory of a witness, it is usual 
 
 ' R. t». Hardy, 24 How. St. Tr. Mass. 273 ; Jordan v. Osg-ood, 109 
 
 824, per Eyrb, C. J. id. 457. 
 
 ' Bunker v. Shed, 8 Met. (Mass.) * Brig-g-s v. Rafferty, 14 Gray 
 
 ^^- (Mass.), 52.5 ; Adams v. Caulliai-d, 
 
 * Hildreth v. Lowell, 11 Gray 102 Mass. 167. 
 
 (Ma-sa.). 345. e Bradford v. Stevens, 10 Gray 
 
 ' Anderson v. Edwards, 123 (Mass.), 379.
 
 SEC. 134.] MEMORANDA — WHEN MAY BE EVIDENCE. 371 
 
 and reasonable, and if the witness has no independent 
 recollection of the fact, it is necessary, that the ojjposite counsel 
 should have an opporlamtf/ of iaspecting them, in order that 
 on cross, or re-examination, he may have the benefit of the 
 witness's refreshing his memory by every part.^ Neither is 
 the adverse party bound to put in the document as part of 
 the evidence, merely because he has looked at it, or examined 
 the witness respecting such entries as have been previously 
 referred to ;^ but if he goes further than this, and asks 
 questions as to other parts of the memorandum, it seems that 
 he thereby makes it his own evidence.^ If a paper is put 
 into the hands of a witness merely to prove handwriting, 
 and not to refresh his memory,* or if put into his hands for 
 the purpose of refreshing his memory, but the question 
 founded upon it utterly fail, the opposite party is not entitled 
 to see it.^ 
 
 Sec. 134. Memorandvim itself only Admissible, when. 
 
 The rule is, that a memorandum itself only becomes evi- 
 dence when the witness, after examining it, altnough able to 
 swear that he knew it to be correct when he made it, is 
 unable to state the particulars from recollection,^ and when 
 it is admitted it is subject to explanation, by the party mak- 
 ing it, to the same extent that it would have been if the 
 words had been spoken instead of written.' 
 
 * Howard f. Canfield, 5 Dowl. ^ R. v. Dunscombe, 8 C. & P. 
 417, 'per Coleridge, J. ; R. -w. St. 369. 
 
 Martin's, Leicester, 2 Ad. & El. 215, « Kelsea v. Fletcher, 48 N. H. 
 
 •per Patteson, J. ; Sinclair v. Steven- 282. In Paine t). Sherwood, 19 
 
 son, 1 C. & P. 583, per Best, C. J. ; Minn. 315, a memorandum contain- 
 
 Lloyd V. Freshfield, 2 C. & P. 332 ; ing several items of account was 
 
 Dupuy X). Truman, 2 You. & Coll. handed to the witness, who testified 
 
 Ch. 341. that he was able to state some of 
 
 * R. v. Ramsden, 2 C. & P. 604, the items without looking at the 
 'per Lord Tenterden ; Gregory v. memorandum, which was not origi- 
 Tavernor, 6 C. & P. 281, per Gur- nal, nor the absence of the original 
 KEY, B. accounted for. It was held that 
 
 * Gregory v. Tavemor, 6 C. & P. under these circumstances the mem- 
 281. See Stephens v. Foster, 6 C. orandum was improperly permitted 
 & P. 289. to be read in evidence. , 
 
 « RusseU '0. Rider, 6 C. &. P. 416. ^ Rice v. Heath, 39 Cal. 609.
 
 372 
 
 EVIDENCE. [chap. XI. 
 
 Bee. 135. Memoranda in which Person can have no Interest to 
 
 Falsify. 
 
 There is ;i cUusa of iiieuioiiiiidu which, although not against 
 iiitorcbt, or made in tiie course of any business, are never- 
 theless uduiissible from the very circiwislance that the maker 
 amldhaue no interest tofahifj the facts. Thus it has been 
 hfld that a record of the weather kept for a number of years 
 at a Slate insane asylum is competent evidence to prove the 
 temperature of the weather on a given day included in the 
 recortl.' Such also would be the rule as to memoranda kept 
 relative to the general state of the weather from day to day, 
 upon a (luestion whether it rained, snowed or was pleasant 
 ni)on a certain day within the period included in the memo- 
 randa, because in reference to such matters there could be no 
 interest to falsify, and the entries arc made from personal 
 observation and knowledge as to a matter about which there 
 could be no doubt or difference of opinion, and cannot be 
 expected to have any bearing upon the pecuniary interest 
 either of the maker or any other person. 
 
 Bee. 136. Minutes of Testimony of Deceased Witness. 
 
 The minutes of testimony taken by an attorney of a wit- 
 ness, since deceased, are not admissible as evidence ^er se, 
 but the attorney may testify as to the evidence given by the 
 deceased witness, and will be permitted to use his notes as 
 memoranda to refresh his memory f and the same is true as 
 to the minutes of the presiding judge. He may testify as 
 to what the witness said, using his minutes to refresh his 
 memory, but his notes of the evidence are not per se evi- 
 dence,-* even though he is also dead.* But in many of the 
 Stutes it is held that when testimony is taken down upon 
 the trial, and the person taking it down swears that it con- 
 tains the evidence of the deceased, it may be read in evi- 
 
 ' Armond u. Neaamitb, 32 Mich. (S. C), 409. See "Testimony of 
 
 231. Deceased "Witness." 
 
 » Waters v. Waters, 35 Md. 3.57. ■* Foster u. Shaw, 7S.&R. (Penn.) 
 
 » MiU's r* O'H.ara. 4 Binn. (Penn.) 156. 
 108; Datonu. Wallis, 1 N. &McCord
 
 SEC. 136.] MEMORANDA — WHEN MAY BE EVIDENCE 373 
 
 deuce ; ' and iii all cases, iii those States where a stenogra- 
 pher is appointed by the court under a statute authorizing 
 him to do so, the minutes of testimony taken by him would 
 be admissible, if their genuineness is established. 
 
 ' Moore v. Parsons, 9 M. & S. Cockburn, 14 Barb. (N. Y.) 118 ; 
 
 (Penn.) 51 ; Rig-gins v. Brown, 12 Mineral Point R. R. Co. v. Keep, 
 
 Ga. 271 ; Ashe ?). De Rosetts, 5 22 111. 9. 
 Jones (N. C.) L. 299 ; Van Bureu v.
 
 CHAPTER Xn. 
 
 BOOKS OF CORPORATION. 
 
 SECTION. 
 
 137. Entries in Bank Books, when Admissible. 
 
 138. Books of Corporations generally, Rules as to Admission of. 
 
 Sec. 137. Entries in Bank Books, when Admissible. 
 
 Entries in the books of a deceased notary of the protest 
 of a note by liini are admissil:>le to establish the fact of pro- 
 test,' and snch also seems to be the rule as to an entry made 
 by a notary's clerk.* So, too, it has been held that memo- 
 randa made by a bank messenger of demands on promisors 
 
 ' Nichol.'* V. Webb, 8 Wheat. (U. 
 8.) 32(5. 
 
 ' Sutton t'. Gregory, Peaks, 150. 
 In Poole V. Dieas, 7 C. & P. 79, in 
 an action against an indoi-ser upon 
 a bill of exchunge after proof of 
 the afceptance and indorsement, in 
 order to prove i)resentment, a \vit- 
 nes.s wius calleil, who stated that he 
 wa.^, at the time when the bill be- 
 came line, clerk to Mi-. Harrison, a 
 notary, and that it was brought 
 there, ami, according to the course 
 of business, copied into a book ; 
 and that, in the margin of that 
 book, besides the Cf)py of the bill, 
 waa an entiy in the handwriting of 
 a person named Manning, who was 
 then al.so a clerk of Mr. Hai*i-ison's, 
 but who ha<l since died. It was in 
 the following words : ♦' Out of town, 
 and no orders.— C. J. M." The wit- 
 ne.s3 stated that the enti-y was in ac- 
 cordance with the course of business 
 in the office, and purported to be the 
 an.swer received by Manning on the 
 presentment of the bill ; and he 
 added that such entries were almost 
 
 always made on the same evening, 
 immediately on the clerk's return, 
 and never later than the following 
 morning ; and that the presentment 
 of bills, according to the practice in 
 London, was made after seven in 
 the evening. On inspection of the 
 bill a ticket appeared upon it, con- 
 taining a sinular entry to that in 
 the margin of the book, but made, 
 according to the testimony of the 
 jiotary's clerk, by another clerk 
 named Hawes, from the statement 
 of Manning, which other clerk he 
 believed was still living, and in 
 business in the city. The bill was 
 presented on Saturday, and a clerk 
 of the plaintiff's jiroved that he put 
 a letter to the defendant, giving 
 notice of its dishonor, into the New 
 Post-office, on the Monday. Garleb, 
 J., left the evidence to the jury, and 
 Tipon a rule for a new trial, his rul- 
 ing was sustained. See also Nichols 
 V. Webb, 8 Wheat. (U. S.) 326; 
 Nichols V. Goldsmith, 7 Wend. (N. 
 Y.) IBO; Halliday v. Martinett, 20 
 John. (N. Y.) 168.
 
 SEC. 137.J BOOKS OF CORPORATION. 
 
 o < O 
 
 and notices to indoiscis, in respect to notes left for collection 
 in the bank, are, after his decease, admissible to establish 
 such demands and notices, upon the ground tltat they were 
 made in the due course of business} But it reems that an 
 entry made in a bank book which goes to prove that the 
 bank in that instance departed from a well-established usage, 
 is not admissible in favor of the bank, even though the per- 
 son making it is dead. Thus, it has been held that a book 
 of original entries made by a deceased teller of a bank is not 
 admissible to prove payments made to a depositor, where 
 the custom was to pay money to depositors on checks."- But 
 where the entry is of money paid on a check, and the check 
 has been returned to the depositor, the rule would be other- 
 wise, especially if the depositor, upon notice to do so, refused 
 to produce the check. But entries made l)y third persons 
 upon the books without the knowledge of the parties to the 
 litigation are not proper evidence, because such Ijooks are 
 not public records, and do not fall within any recognized 
 class of written or documentary evidence.^ But where the 
 entries are made by a person having authority to make them, 
 in the due course of business, and he is dead, they are evi- 
 dence, in actions in favor of or against the bank, to prove 
 either the deposit, loan or payment of money either to or 
 
 * Welsh V. Barrett, 15 Mass. 381. delivered a certain notice, was held 
 
 Where a bank messenger, in an ac- admissible. 
 
 tion ag-ainst an indorser, testified " Bank of Montgomery v. Plan- 
 that he never had seen the note in nett, 35 Ala. St. Cas. 178. But see 
 suit, but that he gave the defendant Union Bank v. Knapp, 3 Pick. 
 notice of its non-payment, from a (Mass.) 96, where it was held that 
 minute in a book kept at the bank, in an action by a bank against a 
 containing a minute descnption of depositoi" for having overdrawn his 
 notes becoming due there, the evi- account, the books of the bank are 
 dence was held to have been prop- proper evidence to show receipts 
 erly left to the jury. "Weld v. Gor- and payments of money, as the 
 ham, 10 Mass. 366 ; Shove v. "Wiley, officers of the bank, to that extent, 
 18 Pick. (Mass.) 558 ; "Washington ai-e to be deemed the agents of both 
 Bank v. Prescott, 20 id. 339. In parties ; and if the clerk or person 
 Bank of the "United States v. Davis, making the entry is dead, it is suf- 
 4 Cranch (U. S. C. C), 533, a mem- ficient, to let in the books, that the 
 orandum made by a deceased note entries are shown to be in his hand- 
 clerk of the bank, that he had writing. 
 
 ^ Barnes v. Simmons, 27 111. 512.
 
 ;>7(j 
 
 EVIDKXCE. 
 
 [CIIAP. XJI. 
 
 |,ytlK« Imnk. IiiiiNow York caso," tho fact that a bunk 
 i-ltM-k siini'udoroa a note upon erroneously receiving, a.s full 
 naynicnl, l«>s than tlie amount due thereon, was established 
 aiT.iiii-l the i)o>itiv«' Icstiniony of the maker thereof that the 
 full amoiml nvms paid, hy proof that the figures in the 
 miULMM of the note had r(«senil)led such less sum ($210), 
 nioiv liiau tiir >inn nanicl in tlie l)ody ($510), and had been 
 torn oil" .iftcr the surrender and before the production of the 
 note in eonrt, nnd that the less amount was named in the 
 bank notic- and books, and that the l)ank balance sheet of 
 the day of maturity showed an error in the day's transactions 
 of only seven et-nts (instead of $300).-^ So, too, such books 
 are evidence between the bank and its stockholders,^ but 
 not ill actions between strangers,* unless it is shown that the 
 
 « Metropolitiin Bank v. Smith, 4 
 R<)l)t. (N. V.)2-J0. Ill Ocean Nat. 
 Bank V. Carll. '.• Hnn (N. Y.), 239, 
 th»5 j)laintit!', in onler to prove that 
 it was the bona fide holcier of the 
 note in suit, produced a discount 
 register of the bank used at the 
 time of tJie discounting- of the note, 
 which contained entiies which tend- 
 ed to show that the note was dis- 
 counted l)y thfi l)ank on the 31st of 
 July, 18Gi), and proved that at that 
 time one H. S. Murray was dis- 
 count (rlerk of the bank, and that 
 he waa ilea<l ; that it was his l)usi- 
 neaa to make the entries, and that 
 they were made in the usual course 
 of business and were in his hand- 
 writing. The court held that the 
 entries were admissible. " The 
 rule is," .'<aiil Bhonson, J., in Bi-ews- 
 ter V. Doan.-. 2 Hill (N. Y.), 537, 
 *' that entries ami memoranila made 
 in the usual course of tmsiness by 
 notaries' clerks and other persons 
 may lie received in evidence after 
 the death of the person making 
 them." Halliday v. Martinet, 20 
 John. (N. Y.) U)8; Butler v. Wright, 
 2 W.-nrl. (N. Y.) 369 ; Hart v. Wil- 
 son, 2 id. r)13; Nichols v. Goldsmith, 
 
 7 id. 160. And in Sheldon v. Ben- 
 ham, 4 Hill (N. Y.), 129, where the 
 entries made by the teller of the 
 bank were offered in evidence, 
 Bronson, J.,said: "Itisenough that 
 he acted on this occasion in the 
 usual course of his employment, 
 and being dead, the entries which 
 he made at the time were properly 
 received in evidence. The rule for 
 admitting them is not confined to 
 entries made by pul)lic officers." 
 Welsh V. Barrett, 15 Mass. 380. 
 Where there is any reason for doubt, 
 it is for the jury to say how much 
 they prove. Davis, P. J., in Ocean 
 Nat. Bank v. Carll, a^ite. 
 
 ' In Snow V. Thomaston Bank, 
 19 Me. 269, entries made by the 
 cashier, of the appropriation of 
 money which the bank was to apply 
 to the payment of notes belonging to 
 it, are admissible to prove such ap- 
 propriation, especially where it is 
 shown that the iiarty interested had 
 seen the entries and did not object 
 to them 
 
 ' Merchants' Bank v. Rawle, 21 
 Ga. 334. 
 
 * Union Bank of Florida v. Call, 
 5 Fla. 409.
 
 SEC. 137.] BOOKS OF CORPORATION. 377 
 
 clerk who made the entry is dead or beyond the reach of 
 process ; nor is such boolv admissible to explain an entry in 
 the private bank book of the opposite party, if the latter be 
 produced only on notice given by the party offering the 
 bank book,^ or unless the entries upon the books of the 
 bank can be verified by living witnesses who made them or 
 furnished the data upon which they were made. Thus, in 
 an action Ijetwcen two persons who have been in the 
 habit of dealing with each other by notes and checks on 
 a bank, the books of the bank are competent evidence to 
 show what disposition has been made of such notes and 
 checks, and how the proceeds have been applied and usetl. 
 So the books of the bank, in which the parties to action 
 have kept their accounts, are competent to ])rove that a 
 check, given by the plaintiff to the defendant, had been 
 carried to the credit of the latter in the Ijooks of the bank, 
 and that the money had thus come into possession of the 
 latter. And where it was in evidence that the defendant 
 promised to send his daughter to the school of the plaintiff, 
 and that she did attend the said school, it was held that 
 the plaintiff's books of account were competent evidence to 
 prove the amount of the service so rendered, and also the 
 amount of books and stationery furnished to her for the 
 purpose of instruction.^ 
 
 In an action against a bank by a depositor, to recover on 
 a special deposit, the books of the bank are admissible to 
 show the character of the deposit. Thus in an action to 
 recover from a bank a certain sum in gold, which the plain- 
 tiff claimed to have deposited in the defendant's bank, 
 specially, an entry in the bank book of the plaintiff' as 
 follows: "1861, Dec. 30th, cash (coin) $3,000," was held 
 admissible for the purpose of verifying the testimony of a 
 witness, and of showing the nature of the particular entry, 
 and it was also held that the plaintiff was not bound to put 
 in evidence all the other entries in the books. 
 
 Pass books, in which the bank enters the deposits made 
 by, as well as its payments to, a depositor, are evidence in an 
 
 ' Philadelphia Bank v. Offlver, 12 ' Oliver v. Phelps, 20 N. J. L. 180. 
 S. & R. (Penii.) 49. = Oliver v. Phelps, 21 N. J. L. 597.
 
 378 EVIDENCE. [CIIAP. XII. 
 
 action ])otwceti the hank and tlie depositor,' and it has been 
 h» Id that where entries of deposits are made by a clerk of 
 tlie bank in the pass book when the deposit was made, and of 
 Aviiii'h he had knowledge, they are conclusive on the bank, but 
 if thi' d('p;>sit is made, and the entry is afterwards copied 
 upon the 1):lss book from the ledger, the bank is not con- 
 iludi'd tht rt'by, berause the entry then stands as mere hear- 
 say, ' and is entitled to no more force than any ordinary copy. 
 The l){)oks of a bank, like those of a merchant or shop- 
 keeper, must be proved by the suppletory oath of some 
 otHier or agent of the bank, and are open to impeachment, 
 not as a whole, but as to separate or particular items, and 
 the degree of weight to be given them will depend upon 
 the general accuracy with which they are shown to have 
 been kept.^ Entries in the books of a bank by a person 
 since deceased, made in the usual course of business, and by 
 one whose duty it was to make them, and who had no inter- 
 est to iiiisi('[)r('sent the facts, are admissible in evidence.* 
 Bank hooks, proved to have been regularly kept, and open 
 to the insj)ection of the president of the bank, and proba- 
 l)ly examined by him, are admissible in evidence in an action 
 against him l)y the receiver of the bank to recover of him 
 on an account due the bank as it stood on their books ; as 
 also are the returns made by the bank to the bank conunis- 
 sioncrs dining his })residency, which could not have been 
 made up without including, with the amount of indebted- 
 ness from directors to the bank, the account against the 
 l)resident, and which were examined and allowed by him. 
 The minute book of a bank directors' meeting, regularly 
 kept by the cashier, and recognized by the president as au- 
 thority, is good evidence of who were present and what 
 wjis done by the board at a particular meeting, as between 
 one who was jjresident and director of the bank at the time 
 
 ' McKanelin v. Bresslin, 8 Gray * Wheeler v. Walker, 45 N. H. 
 
 (Ma.H.^.). 177 ; Jei-muin v. Denniston, 355. That the books of a bank are 
 
 10 N. ^ . 276. evidence of the receipts and pay- 
 
 ' Manhattan County v. Lydig, 4 menta stated, see Union Bank v. 
 
 John. (N. Y.) 377. Knapp, 3 Pick. (Mass.) 96. 
 
 ' M.Tchants' Bank v. Rawle, 7 
 Ga, 191.
 
 SEC. 138.] BOOKS OF CORPORATION. 379 
 
 the minute was made, and a receiver of the bank who repre- 
 sents the corpoi-ation.' 
 
 Sec. 138. Books of Corporations generally, Rules as to Admission ofL 
 
 Where the books of a corporation, containing a record of 
 its votes and acts, are kept by the proper officer, they are 
 evidence of its acts and proceedings,^ especially as between 
 it and its stockholders,^ and in actions against it,^ as to prove 
 
 ' Olney v. Chadsey, 7 R. I. 224 ; 
 Alabama, &c., R. R. Co. v. Nabors, 
 37 Ala. 489. 
 
 * Ewiiigs V. Speed, 5 Wheat. (U. 
 S.) 420 ; Barrington v. Pittsburgh, 
 &c., R. R. Co., 34 Penn. St. 358; 
 McHorn v. Wheeler, 45 id. 32 ; Jef- 
 ferson V. Stewart, 4 Harr. (Del.) 82 ; 
 Highland Turnpike, &c., Co. v. 
 McKean, 10 John. (N. Y.) 154; 
 Hamilton, &c., Plank Road Co. v. 
 Rice, 7 Barb. (N. Y.) 157 ; Meadow 
 Co. V. Shrewsbury Chui-ch, 22 N. 
 J. L. 424 ; Fitch v. Packard, 5 111. 
 69 ; Penobscot R. R. Co. v. White, 
 41 Me. 512 ; Penobscot, &c., R. R. 
 Co. V. Dunn, 39 id. 587 ; White 
 Mountain R. R, Co. v. Eastman, 
 34 N. H. 124; Fitch v. Pink- 
 ard, 4 Swan (Tenn. ), 69 ; People v. 
 Oakland County Bank, 1 Doug. 
 (Mich.) 282 ; Conn., &c.. Life Ins. 
 Co. V. Schenck, 94 U. S. 593 ; Hagar 
 V. Cleveland, 36 Md. 476 ; Hudson 
 V. Carman, 41 Me. 84. 
 
 ^ Chase v. Sycamoi-e, &c., R. R. 
 Co , 38 111. 215 ; Graff v. Pittsburgh, 
 &c., R. R. Co., 31 Penn. St. 489 ; 
 Wheeler v. Walker, 45 N. H. 355 ; 
 Union Canal Co. v. Slayd, 4 W. & 
 S. (Penn.) 393; New England Mfg. 
 Co. V. Vandyke, 9 N. J. Eq. 498. 
 
 * Tuskaloosa t^. Wright, 11 Ala. 
 230 ; N. E. Mfg. Co. v. Vandyke, 9 
 N. J. Eq. 498; Philadelphia, &c., 
 R. R. Co. V. Hickman, 28 Penn. St. 
 318. The book of minutes of a cor- 
 poration is only prima facie evidence 
 of the correctness of the entries 
 
 made in it, and the appearance of 
 the entries may, of itself, i-aise so 
 sti'ong a suspicion against the i-egu- 
 larity of the proceedings, that no 
 weight will be given to them. Van 
 Hook ?>. Somerville Manuf. Co., 5 
 N. J. Eq. 137. And they are not evi- 
 dence of an agi'eement alleged to 
 have been made by the stockholders 
 as individuals, and not intended to 
 bind the corporation. Black v. 
 Shreve, 13 N. J. Ecj. 455. Nor are 
 they admissible against a member 
 of the company, as evidence of his 
 private contracts or dealings with 
 the company. In respect to them, 
 he is to be regarded as a sti-anger ; 
 nor indeed are they evidence in any 
 case, unless it appears that they 
 have been kept by the proper officer 
 of the corporation. Haynes v. 
 Brown, 36 N. H. 545. The receipt 
 book of a corporation, containing 
 entries of payments by a membei', 
 is evidence against the company, 
 without producing the officer by 
 whom they were countersigned, and 
 ai'e not to be rejected because they 
 furaish evidence of other payments 
 than those for which they are jirop- 
 erly admissible in evidence. North 
 America, &c., Assoc, v. Sutton, 25 
 Penn. St. 463. Entries of credit on 
 the books for stock assigned, are 
 woi'thless if founded on a transfer 
 which did not discharge the as- 
 signor's liability. Hays v. Pitts- 
 burgh, &c., R. R. Co., 38 Penn. St. 
 81. Any person who saw the entries
 
 .)•><» 
 
 EVIDENCE. 
 
 [chap. XII. 
 
 tl.o organization of llio coiiipaiiy,' to ^how who arc stock- 
 hoUlfi^,-' to show tli.it a »all was niado, and its anioinit,^ to 
 prove the iicceptaiuc of its charter or amendments thereto,* 
 to -how what resolutions were passed or votes were taken at 
 a ineetiniT either of the stoekholders or directors,'^ and who 
 were eleeted ;i.s directors, etc., of tlie corporation.® But the 
 evidence afforded hy the books is not conclusive, but may be 
 impeaclied bv any competent evidence.''^ While it is the 
 <n'neral rule that books of a corporation are not evidence in 
 actions in its favor against strangers,^ yet this is not always 
 true, and in some instances the rule is departed from. There 
 are instances, however, in which the books of a corporation 
 are not only admissible, but are also regarded as the best 
 evidence of the facts to be established, even in actions between 
 strangers. But the exception to the rule is limited. Thus, 
 they arc the proper evidence of its corporate acts, and while 
 they are in existence and can be produced, parol evidence is 
 inadmissible to [)rove the acceptance of the charter, or what 
 persons are members of the corporation.^ So where it 
 
 miule in the corporation books, 
 thouf,'-!! he is not the secretary, can 
 verify the books. St. Lawrence, 
 Ac. Co. V. Paige, 1 Hilt. (N. Y. C. 
 P.) 430. 
 
 ' Huilson ?«. Carman, ante ; Grays 
 t). Lyni-hlmrf,'-h, &c., Turnpike Co., 
 4 Rjuid. (Va.) .')78 ; Ryiler v. Alton, 
 &c.. R. R. Co., 13 111. 516 ; Bun- 
 coml)e, &<:., Turnpike Co. v. Mc- 
 Carson, 1 D. & B. (N. C.) 306; 
 Wheeler ». Walker, 45 N. H. 355. 
 
 • In re St. George Steam Packet 
 Co., 3 De G. & S. 31 ; Company of 
 Carpentei-s, &c., v. Haywai'd, 1 
 Doug. 373; Collins v. Maule, 8 C. & 
 P. 502. In an action to recovei" a 
 Hub.'M^ription to a coqioration, the 
 Huljscription books are not only com- 
 petent, but generally the only ex-i- 
 dence by which the liability can be 
 e,stabli.shcd. Marsh r. Colnett, 2 
 E«p. 665 ; Peake v. Wabash R. R. 
 Co., 18111. 88 ; Partridge v. Badger, 
 25 Barb. (N. Y.) 146. 
 
 ' Barington v. Pittsburgh, &c., R. 
 R. Co., 34 Penn. St. 3.")8 ; White 
 Mountain R. R. Co. v. Eastman, 34 
 N. H. 124. 
 
 * Coffin V. Collins, 17 Me. 440; 
 Hudson V. Carman, ante. 
 
 * Montgomery R. R. Co. v. Hurst, 
 9 Ala. 513 ; Alabama, &c., R. R. 
 Co. V. Nabor.s, 37 Ala. 489. 
 
 * Wood ?). Jefferson County Bank, 
 9 Cow. (N. Y.) 194. 
 
 ^ Goodwin v. United States An- 
 nuity, &c., Co., 24 Conn. 591. 
 
 * Chase v. Sycamore, &c., R. R. 
 Co., 38 111. 215 ; Hagar r. Cleveland, 
 36 Md. 476 ; Conn. Life Ins. Co. •?>. 
 Schenck, 94 U. S. 5it3 ; Jones V. 
 Trustees, &c., 46 Ala. 626. 
 
 * Coffin V. Collins, 17 Me. 440. If, 
 however, no books have been kept, 
 or if they are lost or destroyed, or 
 cannot be obtained by the party 
 having the affirmation of the issue, 
 acceptance of the charter may be 
 proved by the acts of the alleged
 
 SEC. 138.J 
 
 BOOKS OF CORPORATION. 
 
 381 
 
 becomes itnportant to show that a certahi resolution was 
 jjassed at a meeting of the stockholders or directors, the 
 records, if any, must be produced, or notice to produce them 
 must be given l)efore secondary evidence of their contents 
 ■will be admitted.' So where the charter provides that 
 certain agents or officers shall be appointed by writing, the, 
 books of the corporation are admissible, in the absence of the 
 
 members of the corporation. Hud- 
 son tJ. Carman, 41 Me. 84. In an 
 action between third persons the 
 records of the corporation need not 
 be produced to prove the authority 
 of the president to do a certain act, 
 but it may be shown by other evi- 
 dence. But so, too, it may be shown 
 by the records. Cabot v. Given, 
 45 Me. 144. And the same rule 
 prevails as to the appointment and 
 authority of a cashier of a bank, 
 and of deposits made in the bank. 
 Concord v. Concord Bank, 16 N. H. 
 26. And this is so, even though the 
 charter provides that the signature 
 of the president, attested by the 
 secretary, shall be taken as full evi- 
 dence of the doings of the corpoi-a- 
 tion. Hankins v. Shoup, 2 Ind. 342. 
 The by-laws of a corporation, when 
 they have been written out and re- 
 corded in the books of a corporation, 
 may be proved by the books. But 
 •when they rest in parol, they may 
 of course be proved by parol. Thus 
 by the charter of a bank the presi- 
 dent and directors were authorized 
 to make all such by-laws and regu- 
 lations for the government of the 
 coi-poration, its officers and mem- 
 bers, as they or a majority of them 
 should from time to time think fit. 
 In an action by the bank, upon a 
 certain wi'iting being given in evi- 
 dence, headed " By-Laws," and 
 ■which purported to have been the 
 by-laws of the bank while its busi- 
 ness was transacted under articles 
 of association and before the act 
 
 incorporating it was passed, it was 
 objected that there was no evidence 
 that the wi'iting i^rodticed had been 
 adopted as the by-laws of the cor- 
 poration, there being no entry or 
 memorandum of such adoption 
 among the minutes of its proceed- 
 ings. It was held, 1. That, the 
 authority to make by-laws being 
 specially delegated to the presi- 
 dent and directors, and no particular 
 mode of exercising it being pre- 
 sci'ibed by the charter, it was no 
 more necessary that their adoption 
 should be in writing, than the 
 acts or contracts of any other duly 
 authorized agents ; 2. That, it being 
 proved by the cashier that the by- 
 laws in question were always re- 
 puted to be the by-laws of the 
 corporation, and with the exception 
 of two articles were so observed 
 by him ; and by a director, that 
 they were delivered to him as such 
 upon his election, and that decisions 
 by the board of directors were made 
 agreeably to them in any question 
 ui^on their conduct, this was a suffi- 
 cient adoption of the by-laws by the 
 president and directors. Md. Ct. of 
 Appeals, 1S27, Union Bank of Mary- 
 land V. Ridgely, 1 H. & G. (Md.) 
 324. The records of a school dis- 
 trict are proper and legitimate 
 evidence of votes for such district, 
 in a suit to which it is a party. 
 South School District v. Blakeslee, 
 13 Conn. 227. 
 
 ' Montgomery R. R. Co. v. Hurst, 
 9 Ala. 513.
 
 3«2 
 
 EVIDENCE. [chap. XII. 
 
 written appointment, to prove the appointment, but when 
 the >tutute docs not require the appointment to be made in 
 writiu'S and it does not appear to have been so made, it may 
 be proved b\- parol.' So if in actions between third persons 
 the question is, as to whether a certain person is a stockliolder 
 i)f a certain cor^joration, the stock-books oi" the corporation 
 not only are admissible, Dut, as a rule, should be produced, 
 or their eontents in that respect shown, where the party 
 cannot produce them. And especially is this the case where 
 llie charter or general law provides that all transfers shall be 
 made upon the books of the corporation.'^ 
 
 In some of the states, by statute, these books are made 
 admissible for certain purposes as prima facie evidence ; 
 but even in those cases they may be controverted by other 
 proof, and omissions therein may be supplied l)y parol.-' 
 "When the books of a corporation are admissible as evidence, 
 if there is nothing on their face to raise a suspicion that the 
 corporate proceedings have been irregular, they will be 
 treated and referred to jis evidence of the legality of its 
 l)rocecdings. Thus, where, by the statute, a certain propor- 
 tion of the corporators were required to be present at a 
 meeting to pass a certain vote, it was held that a statement 
 in the record that " upon due invitation the corporators met, 
 etc.,*' amounted to ev'idence that the requisite number were 
 present.* The books of a corporation are not evidence to 
 prove a usage, by entries of acts of submission by particular 
 persons to the exercise of rights insisted on, without proof 
 
 ' Hamilton v. Newcastle, &c., R. London & Brig-hton Railw. Co. v. 
 
 R. Co., 9 In<l. 359. Faircloug-h, 3 Scott N. R. 68 ; Lon- 
 
 * Coffin V. Collins, ante. But see don & Grand Junction Railw. Co. v. 
 
 Hare c. Waring, 3 M. & W. 362. Graham, 1 Q. B. 271. 
 
 WlK-re a book is made by statute ' Thome n. Travellers' Ins. Co., 
 
 pri;/»a /acie evidence of proprietor- 80 Penn. St. 15; Laymouth v. 
 
 ship of shares in the coi-poration, it Koehler, 35 Mich. 22 ; Reynolds v. 
 
 Ls a«lmissible as such, though it Schwimpus, 27 Ohio St. 311 ; Board 
 
 has been irregularly kept, London of Education v. Moore, 17 Minn. 
 
 Grand Junction Rjiilw. Co. v. Free- 412. 
 
 man, 2 M. & G. 606 ; Birmingham, * Com. v. Wallper, 3 S. & R. 
 
 &c., Railw. Co. V. Locke, I Q. B. (Penn.) 29 ; Wood v. Jefferson Co. 
 
 2r>6 ; mid is even e%-idence for the Bank, 9 Cow. (N. Y.) 194 ; Grays 
 
 company in an action for calls. See v. Turnpike Co., 4 Rand. (Va.) 578.
 
 SEC. 138.] BOOKS OF CORPORATION. 38o 
 
 aliunde of the situation of those persons and their relative 
 position in reference to the corporation.^ The books of a 
 banking corporation have been held admissible as evidence 
 in a suit on a note brought by the bank against the indorser, 
 a stranger, to prove the election of its officers ; and this was 
 held sufficient, p-ima facie^ to show that the bank had com- 
 plied with the previous requisitions of their charter, and 
 that it had a legal existence.'^ 
 
 The books of a corporation have been allowed as evidence 
 for them, in suits against strangers, in aid of the testimony 
 of a witness who had made an entry therein, the truth of 
 which was in question.^ This seems, however, to have been 
 upon the principle which allows memorandums, made of a 
 transaction at the time, to go to the jur}-, luider certain cir- 
 cumstances, along with the testimony of the person who 
 made it. The court slightly advert also, in support of their 
 decision, to the doctrine allowing previous consistent declara- 
 tions of a witness to be given in evidence in corroboration of 
 his oath. In this respect the entries in the books of a cor- 
 poration would oljviously stand upon the same footing as a 
 similar entry in a tradesman's book. And there are many 
 cases where the entries in the books of banks have been both 
 admitted and rejected, upon grounds which are well applica- 
 ble to books of individuals. The books of incorporated 
 banks, etc., stand upon a different footing, generally, in this 
 country, from the books of the Bank of England. The 
 former are not public books, in the sense in which that term 
 is imderstood by the courts, except as among the members 
 of the corporation. In other cases, the rules of admissi- 
 bility in regard to them, as well as the mode of authenti- 
 cating entries in them, are not essentially variant from those 
 which relate to books of a mere private nature.-* 
 
 The corporation of a city, and municipal corporations 
 
 ' Da\'is V. Morgan, 1 Price, 77. * Ridg^vay v . Farmers' Bank of 
 
 " Wood v. The Jefferson Co. Bank, Bucks County, 12 S. & R. (Penn.) 
 
 9 Cow. (N. Y.) 194, 205 ; State v. 256 ; The Philadelphia Bank v. 
 
 Buchanan, 1 Wright (Ohio), 233. Officer, 12 S. & R. (Penn.) 49 ; Court- 
 
 ^ Farmers & Mechanics' Bank v. nay v. The Com., 5 Rand. (Va.) 66. 
 
 Boraef, 1 Rawle (Penn.), 152.
 
 38-4 EVIDKNCE. [ClIAP. XII. 
 
 "iMu rally, ililU'i' from :i i)riv;itc corporation in respect to 
 tlie matters wc are eonsideriiig. An agent of the corporu- 
 tioM of tlje eit}' of Ntw York, for instance, sued for acts 
 done !)>• order of the corporation, in removing obstructions 
 in a >t reel, mav, in his individual caj)aci/^, avail himself of 
 th«' miimles and l»»»oks of the cor[)oralion in his defense. 
 " it ■■ (the corporatiiin of ihecil}) " more nearly resembles," 
 sjiv the court, atlvciting to the distinction noticed, " the leg- 
 islature of au independent state, acting under a constitution 
 pre.scril)ing its powers. The acts of this corporation concern 
 the rights of the inhaliitants of the city ; it exercises a dele- 
 gated [lower, not for its own emolument, l)ut for the interests 
 of its constituents ; and while it keeps within the limits of 
 its authority, the constituents are bound by the acts of the 
 corporation. \Vlien the citizen wishes to show those acts, 
 he nuist resort to the authentic record of them, which is the 
 original minutes of the corporation." This, it seems, is the 
 best evidence.' 
 
 The oliicial tax-books of the corporation of the city of 
 "Washington, made up by the register, from the original 
 returns of the assessors laid before the board of appeals, are 
 evidence to show the tax assessed upon an individual ; the 
 asse.s.sor.s' original returns need not be produced. ^ "The 
 book was made out by an officer, in pursuance of a duty 
 expressly enjoined by law. This not only makes the tax- 
 ])ook evidence, but the best evidence which can be given of 
 the lacts it contains." In Kentucky, the minutes of the 
 trustees of Louisville and other towns in the common- 
 wealth are competent evidence on trials as to town property. 
 ]5ut there is no provision authorizing their verification by 
 th<! clerk's certificate. It would seem to follow then, say 
 the court, that they ought to be verified by oath, and proved 
 to be true copies from the real l)ook of the trustees, kept by 
 the proper officer and recognized by the board as such.^ But 
 on writ of error, unless the objection to the admissibility in 
 
 ' Dcnninpr p. Roomo. GWond. (N. » Dudley «. Grayson, 6 Mon. (Ky.) 
 Y.)«-,.'J1. 259 
 
 » Rnnkciidorf v. Taylor's Lessee, 
 4 Pet. (V. H.) 349.
 
 SEC. 138.] BOOKS OF CORPORATION. 385 
 
 the court below was distinctly on the ground that the paper 
 was not sufficiently authenticated, the court will not notice 
 it, but will only regard the objection as one of relevancy or 
 competence. 
 
 In Virginia the statute vested certain trustees with one 
 hundred acres of land to be appropriated partly as a present 
 to settlers and partly for the benefit of the proprietors ; 
 held tliat the books and other records of the trustees, called 
 in the case a corporation, being first shown to be in the 
 handwriting of the proper officers of the board, were admis- 
 sible in evidence. The court said the trustees were estab- 
 lished for i)ublic pur[)oses ; and their books were the best 
 evidence of their acts and proceedings.^ And in Massachu- 
 setts, a proprietary book of ancient date has been held ad- 
 missible, without proving the entries by the clerk of the pro- 
 prietors who made them.* The sales book of the proprietors 
 of Cincinnati has been admitted as to early sales. ^ An 
 ancient book of records of the town of Boston, enfitled the 
 Book of Possessions, which, although not regularly autlien- , 
 ticatcd, bad been preserved among the records of the town, 
 was held competent and sufficient evidence to establish 
 ancient titles under allotments from the town.* A book of 
 the proprietors of common lands was allowed in evidence in 
 tracing title, on a witness stating that it had been formerly 
 in the possession of his grandfather, whose executor had it 
 thirt}' }ears, and then delivered it to the witness ; the pre- 
 sumption from lapse of time being, say the court, that the 
 witness had the lawful custody of it, and there being no 
 evidence of the present existence of the proprietary with a 
 clerk to keep the books and records ; and there being no 
 place appointed by law for the deposit of such books when 
 a proprietary becomes extinct.^ The town record books, in 
 New Hampshire, may ])e used by selectmen in justifying their 
 
 ' Owings V. Speed, 5 Wheat. (U. ^ Williams v. Burnet, 1 Wright 
 
 S.) 420. (Ohio), 53. 
 
 ^ The Proprietors of Monumoi v. * Rust v. The Boston Mill Corpo- 
 
 Rogers, 1 Mass. 159; Pitts v. Tern- ration, 6 Pick. (Mass.) 158. 
 
 pie, 2 id. 538. * Tolman v. Emerson, 4 Pick. 
 
 (Mass.) 160. 
 
 25
 
 3gi; EVIDENCE. fciIAP. XII. 
 
 d()iiigs a.s such, to show their :4)pointiiicnt by a meeting of 
 the inhnbitauts ; ami also to !^h()^v a tax voted at such nicet- 
 iu.^' The record of the ai)i)ointment, and proof that the 
 sckrtiucii had aett-d under it, was hehl in this case proper 
 evidence lo be submitted to the jury, as in favor of the select- 
 men, from which to infer that the meeting, at which the 
 sck'ctmen were ai)p(»intcd, was a h^gal one in all respects.^ 
 It seems that a record like the above, when erroneous, may 
 be amended by the ckuk so as to conform to the truth, by 
 ujotion to tile court on behalf of the selectmen.^ The chest 
 of an iiiioiporated company, kept by their clerk for the time 
 bein", is the proper custody for okl documents relative to 
 the admission of freemen and other acts of the com[)any ; 
 but the private house of a former deceased clerk is not the 
 proper custody for a convention dated in the reign of Edward 
 IV, between the then Prince of Wales and the corporation." 
 The book of a corporation must in general l)e identified ; 
 and it niust be shown that the l)ook was kept and the entries 
 • were made by the pro[)er officer, or some other person in his 
 necessary absence.^ It is not enough that the book is in the 
 handwriting of a person stated therein to be secretary, and 
 tliat the witness producing it received it from such person.^ 
 Nor is itsuffi(;i<'nt merely that the book is proved by a former 
 secretary or clerk to have been handed down to him as the 
 cori)ojation book.''' In England, mere sworn copies of the 
 books of the Bank of England are evidence. It is otherwise, 
 its a general rule, in respect to the books of banks in this 
 country. In assumpsit against a bank on a bill drawn by 
 its i)r&sident, his authority to draw was denied. To prove 
 one item in his case, the plaintiff offered examined copies 
 from the discount-book of the Bank of Pennsylvania, a third 
 
 ' Hishop V. Cone, 3 N. H. 513; ' Highland Turnpike Company «. 
 
 M<K:i<lilen }'. Kinfr.sbury, 11 Wend. McKean, 10 John. 154 ; Gaines v. 
 
 (N. Y.) 669. The Tombeckbee Bank, 1 Ala. 50. 
 
 ' Bi.shop V. Cone, ante. » Hig-hland Turnpike Company v. 
 
 ' Well V. Battelle, 11 Mass. 477 ; McKean, ante. 
 
 Taylor v. Henry, 2 Pick. (Mass.) ^ Martin v. Gunby, 2 H. & J. 
 
 397. (Md.) 248. 
 
 * Shrewsbury v. Hart, 1 C. & P. 
 114.
 
 SEC. 138,] BOOKS OF CORPORATION. 387 
 
 person. It was held inadmissible, as the original should 
 be produced. The court denied that this came within the 
 rule that where an original is of a public nature and ad- 
 missible in evidence, an examined copy is evidence j^er se. 
 To make it admissible, if so at all, there must be proof that 
 the original was made by an officer of the bank ; the officer 
 himself to prove this, if to be foimd ; and if not, his hand- 
 writing to be proved. The court admitted the contrary rule 
 as to the Bank of England, but said that their books are 
 truly of a public nature. But to give that name to the books 
 of the Bank of Pennsylvania, and on the same principle to 
 those of incorporated insurance companies, etc., with which 
 the country has been inundated, might produce serious con- 
 sequences. " We know," say the court, '"that these books 
 are often badly kept ; and it would be dangerous to admit 
 copies iji evidence when the originals may l)e easily had ; nor 
 should the originals be admitted without proof by whom the 
 entries were made."' In another case, it was held that the 
 entries in a book of an incorporated bank were not admis- 
 sible, as between third persons, to show a deposit of money, 
 miless it be first proved that the clerk who made the entries 
 was dead, or beyond the reach of the process ; and this, though 
 it was admitted that the entries in question were made by 
 J. M., who was clerk at the time. The rule has subsequently 
 been laid down thus : "I take it to be a general and estab- 
 lished principle, that neither copies of the books of an in- 
 corporated bank, nor the books themselves, are admissible 
 against any other than the bank, or without proof being first 
 made by whom the entries in the book were made ; and that 
 the proper witnesses to make such proof are the clerks by 
 whom the entries were made, if to be found within the juris- 
 diction of the court ; but if dead or out of the jurisdiction of 
 the court, proof may be made of their handwriting."^ It 
 seems, however, according to those cases, that where a bank 
 is located at a great distance from the place of trial, or where 
 the books are required to be in different places at the same 
 
 ' Ridgway t). Farmers' Bank, 12 12 S. & R. (Penn.) 49 ; Goehenauer 
 S. & R. (Penn.) 256. v. Goad, 3 Penn. 244. 
 
 '■' Philadelphia Bank v. Officer,
 
 3^8 KVIDENCE. [chap. XII. 
 
 time, :iii exaniinocl copy from the books, with proof that the 
 oni;iuiil cntrk's were made \>y an officer of the bank ([)i()ved 
 })y lums«'lf, if to '»c found, and if not, with proof of his 
 . handwriting), would l>f competeiit evidence. Mere certified 
 copirs would n(»t l)e admi.-sibk', unk'.ss rendered so by atatnte.^ 
 In Ma-saehnsetls, it has been said that elerks of religious 
 aiul other cori)oration.s, and other reeordmg officers, may 
 ccrtifv copies of their records; and in doing so, act under 
 the oiiliiration of an oath of office, and their certificates are 
 evidence.* The general rule, however, is otherwise, and, 
 unle^ throuirh the intervention of a statute, mere certified 
 copies of cor[)oration records and minutes are inadmi&sil)le.' 
 Tlie proceedings of churches and ec(desiastical bodies gen- 
 <M-allv mav be proved l)y parol, though minutes are kept of 
 them Itv their clerks :* and in tlie case last cited the minutes of 
 a i)re>l>ytery were held evidence to prove certain facts, e. r/., 
 the suspension of a minister, on due complaint made, but not 
 to show the facts upon which it was founded. The record of a 
 certificate of incorporation of areligious society isnotevidence 
 of the fact of incorporation. Tlie certificate itself must be 
 ])roduced.* Where it was referred to the court to determine 
 wild her a book [)roduced was the record of a church, itappear- 
 iuLMhal during the whole time it was kei)t, the ministers of the 
 pari^h and pastor of the church kept it wholly or principally, he 
 being the proper officer to keep such a record ; and being 
 ke[)t in the form of a record, and containing a regular state- 
 ment of the admission of membci's, th(! choice of officers, and 
 the transaction of the regular business of the church ; held 
 that such book w{ls to l)e considered the record book c( the 
 church.^ The receipt book of a c()r[)()ration, containing 
 entries of payments by a nieml)er, is evidence against the 
 com[)any, withoift producing the officer by whom they were 
 
 ' Hallowell, &c., Bank t). Hamlin, ■• Charleston v. Allen, 6 Vt. 633, 
 
 14 Majis. 178. 639 ; Dow V. Hlnesman, 2 Aik. (Vt.) 
 
 ' Oakeat). Hill, 14 Pick. (Mass.) 18; Rirldle v. Stevens, 2 S. & R. 
 
 442 ; Sawyer v. Baldwin. 1 1 id. 494 ; (Penn.) 537. 
 
 Ktcbhins v. Jennings, 10 id. 188. ' .Tai-kson v. Leggett, 7 Wend. 
 
 • Dudley r. Grayson, C Mon. (Ky.) (N. Y.) 377. 
 
 2.')r»; n.illowell,&c., Bank ». Hamlin, • Sawyor v. Baldwin, 11 Pick. 
 
 14 Mass. 178. (Mass.) 492.
 
 SEC. 138.J BOOKS OF CORPORATION. 389 
 
 countersigned. Such entries are not to be rejected because 
 they furnish evidence of other payments than those for which 
 they are properly admissible in evidence. • But entries in 
 the books of an incorporated company are not evidence 
 against a member of the company, in respect of a contract 
 entered into by him with the company, although the act by 
 which the company is incorporated authorizes each member 
 to insi)ect and take copies of the books or any part of them. 
 So, although the entries relate to transactions at a meeting at 
 which such member Avas present, it appearing that the entries 
 were made after the meeting had terminated, from memoranda 
 made by the clerk at the meeting.- Nor are the minutes of 
 a corporation evidence of an agreement alleged to have been 
 made by stockholders as individuals, and not intended to 
 bind the corporation.^ 
 
 * North American Building' As- ^ Black v. Shreve, 13 N. J. Eq. 
 sociation v. Sutton, 35 Penn. St. 463. 455. 
 
 " Hill V. Manchester Water Works 
 Co., 2 N. & M. 573.
 
 CHAl^ER XTIT. 
 
 SHOP HOOKS, ACCOUNT BOOKS, ETC. 
 
 HKCTION. 
 
 Klii. A.linissiliity of, generally. 
 
 1 Ji). lliil.' when bfttor Kvidence exists. 
 
 141. Kiilf in ilirterent States. 
 
 14-. KllVct of Alterations, etc. ; of what Things they maybe used 
 
 JUS KvitltMire. 
 
 14S. or what Tilings they are not Evidence. 
 
 144. What arc Proper Subjects of Book Charge. 
 
 14.->. Tiiii*' of Making Entries, etc. 
 
 Sec. 139. Admi.ssibility of, generally. 
 
 Foiiiit rl\ . wlini parties in interest were not permitted to 
 tcstitV in tluir own favor, the question of the admissibility 
 of .shop l)()i)l<s, and books of account generally, was of far 
 more importance tiian at the present time, when even the 
 parties to the action are generally permitted to testify in their 
 <.\vii faviir, because, in any event, whether the books are admis- 
 .sil>U> or not. he may u.se them as memoranda to refresh his 
 memory ; and any tril)unal is quite apt to give additional 
 weight to the evidence, even of a party, which is sustained 
 bv entries of the event, recorded at the time of the occur- 
 rence, especially where there is no rea,sonable ground for sus- 
 j)icion that the party was manufactimng evidence for himself. 
 It has always .seemed to us that any rule which excludes origi- 
 nal books of entry is one clearly opi)osed to sound policy and 
 tliejtscertainment of the truth, and that the only really .sensible 
 iiile is to admit such l)0()ks in proper cases, and leave it for 
 the jury to sai/ irhat def/ree of credit shall be yiven to them, 
 in view of their appearance, the manner in which they are 
 kept, and all the circninstances of the case, including the evi- 
 dence in support of or in contradiction of the entries. And 
 this is practically the rule in several of the States. Thus, 
 in Delaware a notched .stick, accompanied by the oath of 
 the party, is held to be a good book of original entries
 
 SEC. 139. J SHOP BOOKS, ACCOUNT BOOKS, ETC. 391 
 
 where it is the only method by which the party keeps his 
 accounts,' and so are scraps of paper upon which items of 
 debt or credit are originally entered,^ and the book of origi- 
 nal entries kept l)y a party is evidence as to any matter 
 which is a proper subject of book charge,'^ although some of 
 the entries are falsified,'^ and where charges are originally made 
 on a slate and transferred to a day l)ook, the da}' book is treated 
 as an original book of entries.^ But in all cases the books 
 must be supplemented by the oath of the party,^ and the 
 book alone is not sufficient to bind the party charged^ And 
 substantially the same rules prevail in Connecticut, Califor- 
 nia, Vermont, Massachusetts, New Hampshire, Tennessee, 
 Maryland, Louisiana, Pennsylvania, South Carolina, North 
 Carolina, Virginia and several other States, either as a com- 
 mon-law rule or by virtue of express statutory provisions.^ 
 In all the other States such books are admissible under certain 
 restrictions, which are generally peculiar to each State. It 
 would hardly be practicable here to point out in detail these 
 peculiar restrictions, as they are of no consequence except to 
 practitioners in the various States, who are presumed to be 
 
 ' Rowland v. Burton, 2 Harr. (Mass.), 242 ; Barker v. Haskell, 9 
 (Del.) 288. And in Vermont the id. 218 ; Morris t). Briggs, 3 id. 342 ; 
 author once had occasion to put in Faxon v. HoUis, 13 Mass. 427 ; Gib- 
 evidence, as the book of original son -y. Bailey, 13 Met. (Mass.) 537; 
 entries of a party, pieces of boards Smith v. Sanfoi-d, 12 Pick. (Mass.) 
 sawed out of the defendant's corn 139. But see Ogden v. Millei-, 1 
 crib, upon which he had marked as Browne (Penn.), 147 ; Forsyth v. 
 delivered the number of bushels of Norcross, 5 "Watts (Penn.), 432; 
 grain which he had delivered to Kessler v. McConahy, 1 Rawle 
 the plaintiff" under a contract, to (Penn.), 435, contra. 
 prove delivery, and, although ob- ® Fitzgibbon v. Kenney, 3 Harr. 
 jected to, the boards were admitted (Del.) 317. 
 by Peck, J. '' Walker v. Yeatman, 5 Han*. 
 
 "" Smith V. Smith, 4 Harr. (Del.) (Del.) 267. 
 
 532 ; Hall v. Field, 4 id. 533. « Cook v. Swan, 5 Conn. 140 ; 
 
 ^ Townsend v. To\vnsend, 5 Harr. Stiles v. Hamin, 21 id. 507 ; Le 
 
 (Del.) 126. Franc v. Hewitt, 7 Cal. 186 ; Landis 
 
 * Gosewich v. Z ebley, 5 Harr. v. Turner, 14 Cal. 573 ; Prime v. 
 
 (Del.) 124. Nor do alterations or Smith, 4 Mass. 455 ; Ball v. Gates, 
 
 erasures. Sargeant v. Pettibone, 1 13 Met. (Mass.) 491 ; Faxon v. Hol- 
 
 Aik. (Vt.) 355. lis, 13 Mass. 427; Bassett v. Spof- 
 
 6 Ewartt;. Morrell, 5 Harr. (Del.) ford, 11 N. H. 167. 
 126 ; Whitney v. Sawyer, 11 Gray
 
 .i'.'L' 
 
 KVII>KNCE. 
 
 [CIIAP. XIII. 
 
 laiuiliar with iho rul«>.s in this ivspcct in their own coiu'ts. 
 1,1 souw i>r the Stalos, parliciilnriy New York and Georgia, 
 the :i(lini>sioM of a parly's hooks depends upon the circum- 
 >lanci' wh.th.r hi-ltt r rvidenee of the faets ean be had,' the 
 rule liriui,' thai siirh hooks are admissible upon proof by the 
 parlv ollering them, 1. That he kept no clerk, or else the 
 i-li'rk is deail, or olhtrwise inaccessibh ; 2. Upon proof 
 thai Ihi' book teniU-rcd is his original book of entries, his 
 own oath Ix'ing sutHeient for this purpose ; 3. Upon proof 
 by his enstoniers that he usually kept correct books ; 4. 
 Upon inspection by the court to see if the books are free 
 from the >uspii-iou t)f fraud. - 
 
 Sec. 140. Rule when better Evidence exists. 
 
 In these States, as well as in some others,^ the rule excludes 
 the books when better evidence of the facts is attainable, and 
 
 ' Bracken v. Dillon, <J4 Ga. 243. 
 
 " Hull p. Carey, .^ Ga. 2:ii» ; Slade 
 r. Ncl.von, 20 Ga. 3(5.") ; Merchants' 
 Hank n. Taylor, 21 i.l. 334 ; Bailey 
 r. Barnelly, 23 id. 582 ; Chastain v. 
 Brown, 31 id. :M6 ; Crawford V. 
 Stf'Uon, .')! id. 121 ; Petit v. Teal, 
 .'>7 id. 145 ; Reaisor v. Powell, 61 id. 
 3(). Now embodied in the Code, 
 § 3777. In New York the rule is 
 .substantially the same as above, it 
 t>einj; that, when; there are regular 
 liealing'.s between the plaintiff and 
 •leftMulant, and it is proveil that the 
 plaintiff keep.s honest and fair books 
 of arcount ; that .some of the arti- 
 cles rharged to the defendant have 
 boon delivered to him ; and that the 
 plaintiff keep.s no clerk, his Itooks, 
 from neceasity, are admis.sible in 
 evidence, for the con.sideration of 
 th.'jury. Vosburgh v. Thayer, 12 
 John. {N. Y.) 461 ; Linnell v. Suth- 
 erland, 11 Wend. (N. Y.) HGR ; Tom- 
 lin.son v. Bm-st, 30 Barb. (N. Y.)42; 
 Conklin r. Stamler, 2 Ililt. (N. Y.) 
 422; Foster v. Coleman, 1 E. D. 
 Smith (N. Y.), 85; Houptmau v. 
 
 Catlin, id. 729 ; Morrill v. White- 
 head, 4 id. 239. But where the 
 party kept a clerk, i)roof of his 
 decease is essential to let in the 
 books, and the circumstance that he 
 is out of the jurisdiction is not 
 enough. Brewster v. Doane, 2 Hill 
 (N. Y.),537. 
 
 « Wheeler v. Smith, 18 Wis. 051 ; 
 Eastman v. Moulton, 3 N. H. 556 ; 
 Kennedy v. Fairman, 1 Hayw. 
 (Tenn.) 458. In Texas the rule 
 teems to be, that where a witness is 
 called to prove a book of account, 
 he should be inquired of as to the 
 whole method of keeping the books, 
 who made the different entries, etc., 
 and if the testimony of .such wit- 
 ness is insufficient to prove the ac- 
 count, other witnes.ses should be 
 called ; and when the plaintiff rests 
 his case, the defendant may move 
 to exclude all items not proved by 
 competent evidence. Ward v. 
 Wheeler, 18 Tex. 249 ; Burnham v. 
 Chandler, 15 Tex. 441 ; Townsend 
 V. Coleman, 18 Tex. 418 ; Taylor v. 
 Coleman, 20 Tex. 772. In an action
 
 SEC. 141.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 
 
 393 
 
 the books are admissible when,, from necessity, they afford 
 the best evidence of tlie facts contained therein. 
 Sec. 141. Rule in different States. 
 
 As has been seen, the rules relating to the admission of 
 books of account, in the dilierent States, are not uniform. 
 
 admissible in evidence only to prove 
 the performance and delivery of 
 work done within the mechanic's 
 shoij. "Where the work is done out- 
 
 upon prounssory notes given upon 
 settlement of account, the defend- 
 ants having- pleaded in reconvention 
 that the plaintiff was liable for cer- 
 tain book accounts due them which 
 the plaintiff had undertaken to col- 
 lect and apply to the notes sued on, 
 it was held that, in the absence of 
 evidence establishing such liability 
 of the plaintiff, it was eri-or to ad- 
 mit the account books in evidence 
 without definite explanation of the 
 use to be made of them by the jui'y. 
 Compton V. Young, 26 Tex. 644. 
 In South Carolina, where the enti-ies 
 in the jjlaintiff 's book, which was 
 offered in evidence, were, in part, 
 made from memoranda taken by 
 his slave at the time of the delivery 
 of the articles, and pai-tly from 
 memoranda made by defendants 
 themselves, it was held that the 
 entries were not admissible in evi- 
 dence, and that the plaintiff was 
 not a competent witness to jirove 
 them. Venning v. Hacker, 2 Hill 
 (S. C), 584. So the memorandum 
 books of a peddler, in which he made 
 his oi'iginal entries for the most 
 part in pencil, and carried about in 
 his pocket, are not admissible in 
 evidence as merchants' books of 
 accounts. Thayer v. Deen, 2 Hill 
 (S. C), 677. And where a shop- 
 keeper himself sold and delivered 
 goods to a party, and during the 
 same day the entries were made by 
 another person, who occasionally 
 acted as clerk for him, it was held 
 that the book was no evidence of 
 the debt, and that the evidence was 
 inadmissible. Harris v. Caldwell, 
 2 McMull. (S. C.) 133. The books 
 of a tradesman or mechanic are 
 
 side of his shop, or on the premises 
 of the party charged, such as build- 
 ing or repairing a house or any 
 other fixture, thei-e can be no neces- 
 sity for books, for the work is ap- 
 parent. St. Phillip's Church, 2 
 McMull. (S. C.) 306. Where A. 
 verbally authorized B. to let C. 
 have goods on his guaranty, and B. 
 charged the goods to A. for C, in 
 an action brought by B. against A. 
 for the value of the goods, B. may 
 verify his books by his oath, but 
 cannot testify to anything further to 
 establish A.'s liability. Brown v. 
 Kinloch, 2 Spears (S. C), 284. If a 
 merchant's book of original entries 
 shows that the goods charged to de- 
 fendant were delivered to a third 
 person, the entries, supported by 
 the plaintiff's oath, are not, of them- 
 selves, enough to charge the de- 
 fendant. The order, direction, or 
 request of the defendant must be 
 proved by other evidence. Kinlock 
 V. Brown, 1 Rich. (S. C.) 223. So, 
 where, to prove goods sold and de- 
 livered, the plaintiff, a merchant, 
 produced his books,' and testified 
 " that his clerk reported to him the 
 terms agreed upon by him and the 
 defendant respecting the sale of 
 the goods, and upon that report the 
 witness made the entry ; that he 
 delivered the goods to a drayman, 
 who told witness that defendant 
 sent for them," it was held that the 
 evidence was insufficient to support 
 the action. Clough v. Little, 3 Rich. 
 (S. C.) 353.
 
 394 
 
 KVIDKNCE. 
 
 [ciIAr. XIII. 
 
 Ill sonic of tluMii ' (Ijo books are Icfl to the jury, even though 
 l-ilsiticd or -.lUercd, to judge of the degree of eredeuce to be 
 ''iveii to them, wliile in otliers, indeed in most of the others, 
 before the l)0()ks cmm be lubiiittcd, they lire to be submitted 
 to the inspretiou of llie court, :uul if they do not appear to 
 be u register of the thiily business of the party, and to have 
 been honestly and liiirly kept, they are exchided, and such 
 also is the rule when they are manifestly altered or evaded, 
 unless such alterations are explained.'^ If upon inspection 
 l)y the court they appear to be fair and honest, and free 
 from fraudulent practices and proper to 1)C laid before the 
 jury, the party is then re({uired to make oath that they are 
 the books in -which the accounts of his ordinary transactions 
 are usually kcpt,^ and that the goods therein charged were 
 actually delivered, or the money actually paid, or the serv- 
 ices actually rendered, and that the entries loere made at or 
 about the time of the transaction and are the original entries 
 tJiereof, and that the sums therein charyed have not been imid^ 
 except as indicated by the credits in the book.^ If the party 
 
 ' Delaware, Gossenich v. Zibley, 
 5 Harr. (Del.) 124 ; Sargeant v. Pet- 
 tibone, 1 Aik. (Vt.) 355. 
 
 ' Churchman v. .Smith, Whart. 
 (Perm.) 10)5; Cogswell v. Dalliner, 
 2 Mass. 217 ; Faxon ■?). HoUis, ante ; 
 Cole V. Anderson, 8 N. J. L. 68 ; 
 Jones V. De Kay, 2 id. 695 ; Thomas 
 V. Dyott, 1 N. & McCord (S. C), 186. 
 Time books kept with the men en- 
 gaged in work upon a railroad are 
 not admissi hie a.s evidence to show 
 the cost or amount of such work 
 until it is shown, that they xctre jirop- 
 erly nnd correctly kept. For v. St. 
 Louis, &c., R. R. Co., 54 Iowa, 723. 
 
 = Fi-y V. Baiker, 2 Pick. (Mass.) 
 65. 
 
 * Ives V. Niles, 5 "Watts (Penn.), 
 324 ; Cogswell x\ Dalliner, ante. 
 In Cun-en v. Crawford, 4 S. & R. 
 (Penn.) 0, it was held to be essen- 
 tial to this kind of evidence that the 
 charges should be in such a state 
 that they may Ije presumed to be 
 
 the minutes of the daily business of 
 the plaintiff. Where this ajipear- 
 ance is wanting, the evidence is 
 rejected as incomijetcnt ; and where 
 it exists, and the book is admitted, 
 the evidence i-emains liable to all 
 oljjections suggested by unfair ap- 
 pearances of the particular account 
 in issue, or from the whole book, or 
 minutes, taken together, and which 
 naturally affect the credibility of 
 the evidence and must appear to 
 have been made at or near the time 
 of the transaction to be proved ; 
 and when the contrary is apparent, 
 or i.s shown by pi'oof, the books are 
 inadmissible. But no precise time 
 is fixed by law when the entry 
 should be made. Jones v. Long, 3 
 Watts (Penn.), 326; Henryw. Oves, 
 4 id. 46 ; Fairchild v. Dennison, id. 
 258 ; Walter v. Bollman, 8 id. 544 ; 
 Lonergan v. Whitehead, 10 id. 249 ; 
 Cook V. Ashmead, 2 Miles (Penn.), 
 268 ; Thompson v. Bullock, id. 269.
 
 SEC. 141.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 395 
 
 is dead, his books may be admitted if they are shown by 
 the siippletory oath of his executor or administrator to 
 have come into his possession as the genuine books of ac- 
 count of the deceased, and he also swears that, to the best 
 of his knowledge and beUef, the entries therein are original 
 and contemporaneous and unpaid.' It must also appear that 
 the book is the registry of business actually done, and not of 
 orders, executory contracts and things to be done subsequent 
 to. the entry ;^ and the entry must have been made for the 
 purpose of charging the debtors with the debt, and not as 
 a mere memorandum for some other purpose. Thus, a 
 memorandum in a check book, upon the "stub" thereof, 
 has l)een rejected, when cut from the book, and oficred as 
 evidence of the date, amount and tenor of the check. ^ 
 In most of the States, as has been before stated, even 
 though the case is prima fade a proper one for proof by 
 entries, if it appears either on the face of the charge or in 
 any other way that there is, in fact, living or attainable proof 
 of the item, inde[)endent of the entries, the latter are then 
 inadmissible ; for it being apparent that the ordinary com- 
 mon-law proof exists, which is superior in degree, that must 
 be produced. It can only be dispensed with, and the entries 
 received, where it is shown to be in truth beyond the reach 
 of the party. The common case in New York is where the 
 party has a clerk, ^ although one case seems to hold that the 
 entire entries may be received, though part were made l)y the 
 clerk, and the rest by the party. ^ . Nothing but the death of 
 the clerk will let in the book.^ Thus, in a North Carolina 
 
 ^ McLellan «. Crofton, 6 Me. ^ M'Allister v. Reab, 4 Wend. (N. 
 
 307 ; Prince v. Smith, 4 Mass. 455 ; Y.) 483. But quere as to such entries 
 
 Bentley v. HoUenbeck, Wright as appear to be made by the clerk ; 
 
 (Oliio), 169. for other cases have, with a laudable 
 
 ^ Wilson V. Wilson, 6 N. J. L. 9 ; jealousy of such self-fabricated evi- 
 
 Terrill v. Beecher, 9 Conn. 344 ; dence, adhered closely to the rule 
 
 Bradley tJ. Goodyear, 1 Day (Conn.), that where the entry is made by 
 
 104 ; Fairchild v. Dennison, 4 Watts the clerk, nothing shall excuse his 
 
 (Penn.), 258. absence except his death. Kenedy 
 
 ' Watson-w.Gadin, Wright (Ohio), -w. Fairman, 1 Hayw. (N. C.) 458; 
 
 219 ; Cooper -y. Morrell, 4 Yeates Whitetield v. Walk, 2 Hayw. (N. C.) 
 
 (Penn.), 341. 24. 
 
 * Vosburgh -w. Thayer, 12 John. " Kenedy v. Faii-man, 1 Hayw. 
 
 (N. Y.) 462. (N. C.) 458.
 
 ;J<JIJ KVIDENCE. [CIIAT. XIII. 
 
 case, the ik'ik w:i.s alwciit in tlie West IiKlics, and in aiiotlier/ 
 the clerk was in Soulli Carolina ; yet snch al).sc-nc(! was held 
 no exeiiso in eilliercaso. Sonic cases, jiowever, allow the ex- 
 cii.sc that the eleii; is permanently l)eyoiid tlio i)o\vcr of the 
 eonrt.- U[»on the same principle, a schoolmaster's original 
 entries are not jjroof; for he lias usually many witnesses by 
 whom to prove his services, and he must a\ail himself of 
 them." The analogy of these cases has been carried by 
 authority into a variety of transactions ; and the courts very 
 judiciously ap|>ear determined to act on the same principle 
 in rcgaril to all matters forming the subject of evidential 
 account books. True, in one case a lime burner and vendor's 
 book was received to prove large sales of lime delivered out 
 by servants and agents, Avhere the party was generally present, 
 cither at the kiln, when the loads were placed in wagons, 
 or else saw the delivery ; and this, though he was absent 
 on a very few occasions ; ' and in an other case, entries made 
 by the i)arty from a memorandum of aservant were received.^ 
 If the goods were delivered to a third person on account of 
 the vendee, the books are not evidence f not even though 
 they were the vendee's servants.'' So, though the books of 
 a printer are rcceiva])le, they are no farther so than to prove 
 the retainer to do the work ; for the tiles may be produced 
 to show the quantum, and the price may be proved by others ;^ 
 
 ' Whitefield v. Walk, ante. charges for work done by a servant 
 
 " Sterritt iK Bull, 1 Binu. (Penn.) were disallowed as evidence, the 
 
 234. court saying such evidence was 
 
 * Pelzer v. Cranston, 2 M'Cord allowed from necessity, and where 
 (S. C), 328. the work has been done by a third 
 
 * Cun-en v. Cra\\-ford, 4 S. &; R. person, the necessity does not exist. 
 (Penn.) 3. He can prove it. ** Cessanteratione, 
 
 * Ingraharn t). Bockius, 9 S. & R. ceamt ipsa lex." "Wright ^). Sharp, 
 (Penn.) 285. Yet the subsequent cases 1 Browne (Penn.), 344. 8o, charges 
 of Smith ?). Lane, 12 8. & R. (Penn.) for work done by servants, for they 
 80, and Kessler v. M'Conachy, 1 are competent witnesses. Wright 
 Rawle (Penn.), 441, l)oth manifest a v. Sharp, 1 Browne (Penn.), 344. 
 strong tendency to gr-eat strictne.s.s, * Kei-r v. Love, 1 Wash. (U. S. C. 
 and a confoi-mity with the other C.) 172. 
 
 ca.ses in the State of Pennsylvania ' Eastman v. Moulton, 3 N. H. 
 
 an<l fl.sewhere. But see Kaughley 156. 
 
 «. Brewer, 16 S. & R. (Peini.) 133. • Richards v. Howard, 2 N. & 
 
 In a former case in that State, M'Cord (S. C), 474.
 
 SEC. 141.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 397 
 
 nor are ii tailor's books reccival)lc to prove goods delivered to 
 the defendant's Avard by the order of the defendant. Here 
 they are mere proof of the delivery. Books are, in general, 
 not allowed to prove a direction or instruction to deliver to a 
 person other than the defendant.^ The charge on its face pur- 
 porting to be of goods delivered to another on the defendant's 
 order, it was rejected as incompetent.^ And where goods 
 were delivered on written orders, an account was excluded 
 as evidence, for that reason among others. The orders should 
 be produced, or otherwise proved on accounting for their 
 absence.^ Where the goods are deliveied out by another or 
 l)y others, the account kept by them, or by one on their 
 information, cannot l)e received ; for the party has other 
 proof l)y those who delivered the goods, and they must be 
 produced, or their absence accounted for.* Where the charge 
 was for medicine and attendance on an aged menial servant of 
 the defendant, the plaintiff's book was received as usual ; but 
 it was held that the defendant's agreement to pay nuist be 
 proved by evidence aliunde.^ Yet charges for goods sold 
 and delivered to, and services performed for one on account 
 of another, have been sustained by the claimant's original 
 entries in Connecticut, without showing the death or absence 
 of the witnesses. But the question was not presented in the 
 above points of views ; and some reliance seems to have been 
 placed on the statute of that State as controlling the case.^ 
 To be admissible at all, the entries should be made at or near 
 the time of the transaction. The law fixes no precise mstant. 
 They are not to be registers of a past transaction, but 
 memoranda of transactions as they occur -^"^ and where some 
 were made at the time and others some months after, with- 
 out distinguishing which, or assigning a good reason, the 
 •whole w^ere rejected as incompetent.^ In an action for labor 
 
 ^ Deas V. Darby, 1 N. & M'Cord ^ Bryan v. Jackson, 4 Conn. 288. 
 
 (S. C), 436. ' Curren v. Crawford, 4 S. & R. 
 
 2 Tenhroke v. Johnson, 1 N. J. (Penn.) 5 ; Ewing v. Sparks, 7 N. 
 L. 288 ; Townley -y. Wooley, 1 id. 377. J. L. 59; Eastman v. Moulton, 3 
 
 3 Smith V. Lane, 12 S. & R. N. H. 156 ; Cog-swell v. Dalliner, 
 (Penn.) 80. 2 Mass. 217. 
 
 * Smith V. Lane, ante. " Vann v. Feariss, 1 Yeates 
 
 6 Coffin V. Cross, 3 Dane's Abr. 322. (Penn. ), 321.
 
 ;5;iS EVIDKNCE. [CIIAP. XIII. 
 
 :iikI materials funiishod under contract, entries in the plain- 
 tilFs journal and ledgi'r Qiimle af'ltr the work ivas done, caul 
 nut from his iiitmora)i(luin book, which had been introduced 
 by the defendant, were held to be inadmissible iu rebuttal of 
 the latter.^ 
 
 Sec. 142. Eflfect of Alterations, Etc. ; of what Things they may be used 
 
 as Evidence. 
 
 If the day book, journal, etc., contains marks, showing 
 that the items have been posted into the ledger, the latter 
 nmst also be produced.* Entries made in the manner stated 
 are not, in all cases, received as satisfactory evidence of the 
 matters stated, but only as proof of things which are not 
 susceptible of better proof.^ They are, however, satisfactory 
 evidence of goods sold and delivered from a shop or store, or 
 of services [)ersonally performed,'* and, in some of the States, 
 of the payment of small sums of money ;^ but a contain- 
 ing only charges for money is not admissible as a book of 
 accounts, even where the statute expressly makes the party's 
 book of accounts admissible.® 
 
 Sec. 143. Of what Things they are not Evidence. 
 
 A party's books are never admissible to establish items 
 which do not form the proper subject of book charges, which, 
 in most of the States, embrace such items as are recoverable 
 in general assumpsit, although in some of the States the rule 
 has a much narrower application. Thus among matters 
 which do not form the proper subject of book charges are em- 
 braced charges for advertising in a newspaper,''' for money 
 paid and not applied as directed,'* of goods deUvered to a 
 
 ' Bentley v. Ward, 116 Mass, er, 12 John. (N. Y.) 461 ; Wilmer i>. 
 
 333. Israel, 1 Browne (Penn.), 257. 
 
 * Prince v. Sweet, 2 Mass. .569. » Prince v. Smith, ante ; Bums V. 
 ' WattsTj. Howard, 7 Met. (Mass.) Fay, 14 Pick. (Mass.) 8; Dunn v. 
 
 478. Whitney, 10 Me. 9. 
 
 * Easby 7). Allen, 1 Cooke (Tenn.), " Pariies v. Bellaeus, 52 Vt. 351. 
 388 ; Case v. Patten, 8 .John (N. Y.) ' Richards v. Howard, 2 N. & 
 211 ; Charleton v. Lowry, 1 Martin McCord (S. C), 474. 
 
 (N. C), 26; Spencer 7>. Saunders, 1 * Bradley v. Goodyear, 1 Day 
 Bay (S. C), 119 ; Vosburgh v. Thay- (Conn), 104.
 
 SEC. 143.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 399 
 
 third person,' for commissions upon the sale of a vessel,^ for 
 the Itibor of servants,^ for dockages of a vessel,'' for money 
 paid under a special agreement,^ or a delivery of goods under 
 such agreement,^ an article omitted by mistake in a prior 
 settlement,' the use and occupation of real estate, and the 
 like.^ But after the order to deliver goods to a third person 
 is proved by competent evidence aliunde, the delivery itself 
 may be proved by the books and suppletory oath of the 
 plaintiff, in any case where such delivery to the defendant in 
 person might be so proved.^ The charges, moreover, must 
 be specific and particular. A general charge for professional 
 services, or for work and labor by a mechanic, without any 
 specification but that of time, cannot be supported by this 
 kind of evidence.'" And regularly the prices ought to be 
 specified ; in which case the entry is prima facie evidence 
 of the value.^^ But whatever be the nature of the sul)ject, 
 the transaction, to be susceptible of this kind of proof, must 
 have been directly between the original debtor and the cred- 
 itor, the book not being admissible to establish a collateral 
 fact. 12 
 
 Although books, such as have been described, are ad- 
 mitted to be given in evidence, with the suppletory oath of 
 the party, yet his testimony is still to be weighed by the 
 jury, like that of any other witness in the cause ; and his 
 reputation for truth is equally open to be questioned.'-^ In 
 
 * Tenbrook v. Johnson, 1 N. J. * Beech v. Mills, 5 Conn. 493 ; 
 L. 288 ; Townly v. Woolsey, 1 id. Newton v. Higg-ins, 2 Vt. 366 ; Dunn 
 377 ; Kerr v. Love, 1 Wash. (Va.) v. Whitney, 10 Me. 9. 
 
 172. » Mitchell v. Belknap, 22 Me. 475. 
 
 " Winsor v. Dilloway 4 Met. " Lynch v. Petrie, 1 N. & McC. 
 
 (Mass.) 221. (S. C.) 130 ; Hughes v. Hampton, 2 
 
 ^ Wright V. Shoop, 1 Browne Const. Rep. (S. C.) 476. 
 
 (Penn.), 344. " Hagaman v. Case, 4 N. J. L. 
 
 * Wilmer v. Israel, 1 Browne 370 ; Ducoign v. Schreppel, 1 Yeates 
 (Penn.), 257. Because they can tes- (Penn.), 347. 
 
 tify to the servdces. " Mifflin -«. Bingham, 1 Dall (U.S.) 
 
 * Pritchard v. McOwen, 1 N. & 276 ; Kerri). Love, 1 Wash. (U. S.) 
 McC. (S. C.) 131, n. ; Dunn v. Whit- 172 ; Deas v. Darby, 1 N. & McC. 
 ney, 10 Me. 9 ; Green v. Pratt, 11 (S. C.) 436 ; Poultney v. Ross, 1 
 Conn. 205. Dall. (U. S.) 238. 
 
 ' Nickle V. Baldwin, 4 W. & S. " Kitchen v. Tyson, 2 Murph. 
 (Penn.) 290. (N. C.) 314; Elder v. Wartield, 7 
 
 ^ Punderson v. Shaw, Kirby, 150. H. & J. (Md.) 391.
 
 400 EVIDENCE. [CIIAP, XIII. 
 
 sonu' States, the Ijooks thus admitted arc only those of shop- 
 keepers, mechanics and tradesmen ; tliose ot" other persons, 
 such a-s planters, scriveners, schoolmasters, etc., being re- 
 jected. ' 
 
 Sec. 144. What are proper Subjects of Book Charges. 
 
 Ainoni; matters wliich do ibrm the proper subject of book 
 charge, are iteiiis for j)ersonal prapprty sold and delivered,^ 
 and this is the rule irrespective of the value of the property, 
 or whether the charge embraces several, or onl^' a single 
 itciu.^ 
 
 In order to be the proper subject of book charge, it is not 
 in all cases necessary that the goods should be delivered to 
 the person to whom they are charged, or upon his express 
 order. It is sufficient if they are furnished to a person under 
 such circumstances that the law icill imply a promise^ on the 
 part of tlte person to loliom they are charged^ to pay for them. 
 Thu.s, as a husband is bound to furnish support for his wife 
 and provide her with necessaries, and a father to sui)})ly his 
 minor children with necessaries, or a guardian to provide his 
 ward with necessaries out of the ward's estate, it follows that 
 a person supplying such articles may properly charge them 
 in account to the person who is legally l)ound to supply them, 
 and being proper items of book charge, the book is evidence 
 for the party supplying them.'' 
 
 But it must be remembered that in order to warrant a 
 charge upon book for property sold, il must in all cases have 
 been delivered,^ and the circumstance that the goods were 
 ordered absolutely, but not delivered, Avill not let in the book 
 containing a charge therefor as evidence, because, until an 
 actual delivery is made, the contract is executory.^ 
 
 ' Geter w. Martin, 2 Bay (S. C), arefe, the charges were for 78 bushels 
 
 173; Pelzer v. Cranston, 2 McC. of salt and 132 gallons of rum. 
 
 (S. C.) 328 ; Boyd v. Ladson, 4 McC. " Mills v. St. John, 2 Root "(Conn.), 
 
 (^- C.) 76. 1S8 ; Swift's Ev. 84. 
 
 ' Shillaher v. Bingham, 3 Davies' ^ Howell v. Bardin, 3 Dev. (N. 
 
 ''^^"'••^21. C.) 449; Read v. Barlow, 1 Aik. 
 
 » In Loach V. Sheppard, 5 Vt. 363, (Vt.) 14.5 ; 1 Vt. 97. 
 
 f hr; only charge was 2,088 pounds of « Rhoades v. Gaul, 4 Rawle 
 
 meal. In Shillaher v. Bingham, (Penn.), 404.
 
 SEC. 144.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 401 
 
 So, too, ill order to bo a proper subject of book charge, 
 the right to charge for pro^perty delivered must exist at the 
 very moment of delivery, and cannot a7'ise afterwards from, 
 some special contract or circumstance. Thus, money advanced, 
 to a person under a special contract to deliver goods there- 
 for at a future day,' or property delivered to A. to be by 
 him delivered to B., but which he appropriates himself,^ can- 
 not be made the subject of book charge. But in all the cases 
 in w^hich these questions arose, it will be observed that they 
 arose in actions of " book account " in which, by statute, the 
 parties were permitted to testify, and the principal objection 
 ursred airainst the admission of the class of charijes last re- 
 ferred to was, that, to permit such charges to be made and 
 sustained by the party's book and oath, would be permitting 
 the party to testify as to special contracts, whereas the statute 
 only contemplated his being permitted to testify to the 
 quantity, quality and delivery of the articles in question ; ' 
 and this seems to have been the ground upon which the 
 decisions above cited were predicated. Whether the cir- 
 cumstance that, in most of the States, the parties to all classes 
 of actions are now, by statute, permitted to testify in their 
 own behalf, would change the rule relative to book charges, 
 is a question which does not seem to have been decided. 
 
 Money loaned may properly be charged upon book, al- 
 though memorandum notes are given for the amount, unless 
 it is shown that the notes were given and accepted in ex- 
 tin sfuishment of the book debt.^ 
 
 ^ Peck V. Jones, 1 Kirby (Conn.), John. (N. Y.) 79. If a charge upon 
 
 289. book was not oiiginally proper, the 
 
 ^ Slason V. Davies, 1 Aik. (Vt.) parties may make it so by their 
 
 78; Bradly v. Goodyear, 1 Day conduct, assent or agreement. Sjjear 
 
 (Conn.), 104. v. Peck, 15 Vt. 566 ; Daton v. Whit- 
 
 ^ Phenix -y. Prindle, 1 Kirby comb, 17 id. 641. In Darlington v. 
 
 (Conn.), 209; Terrill v. Beecher, 9 Taylor, 2 Grant's Cas. (Penn.) 195, 
 
 Conn. 349. the court held that a shop book, 
 
 * Clark V. Savage, 20 Conn. 258. even though the entries are not 
 And it seems that this is the case, original, and some of the items not 
 although the memorandum was the subject of book charge, is corn- 
 taken as evidence of the loan. Bout- petent evidence if it has been shown 
 well V. Tyler, 11 Vt. 487 ; Smith v. to the debtor without objection on 
 Brush, 11 Conn. 359 ; Bill v. Porter, his part. 
 9 Conn. 31 ; Arnold v. Greene, 8 
 
 26
 
 402 EVIDENCE. [chap. XIII. 
 
 Services performed are a proper subject of l)()ok cliJirgc, 
 in whatever LJipacity they may have been rendered.^ Thus 
 services rendcrtd l)y an attorney,* a justice of the peace,' or 
 indeed by any per-on hi whatever capacity, where there is 
 either an express or an iniphed promise to pay therefor.* 
 And this is also the rule as to services rendered l)y horses, 
 cattle, ete.s 
 
 But as, in the case of goods sold, it must appear that they 
 were actually delivered before they can properly be charged 
 on book, so in the case of services it iuiust he shoivn that theij 
 have been actaalhj performed.^ 
 
 Where an agreement by certain parties to loan certain 
 sums of money to aid in the building of a hotel, provided 
 that W. and others should l)e the attorneys in fact of the 
 subscribers, empowered to contract with a suitable person to 
 execute the purpose of the agreement, and collect and dis- 
 burse the amounts subscribed, and they entered into a contract 
 with S. to build such hotel, and W., who was a banker, was 
 made their treasurer, it was held that the entries in the books 
 of W. were not admissible to charge S. with the receipt of the 
 subscriptions, in an action against him l)y a subscriber to re- 
 cover the amount of an alleged payment. An entry in a 
 book of accounts, which is the princi[)al fact \\\)o\\ which the 
 right to recover is based, is not admissible as being part of 
 the res gestce. In such case, certificates to subscribers issued 
 by the attorneys in fact, acknowledging the payment of sub- 
 scriptions to the loan, would not be competent to conclude 
 S. therein. Nor would a reccii)t executed by S. to W. for a 
 sum less than the whole amount subscriljed, which did not 
 speciiy the names of the parties from whom W. had received 
 
 ' Hawell V. Barden, 3 Dev. (N. Penn. St. 142, where it was held 
 
 C.) 449. that a charge by a notary public for 
 
 * Charlton v. Lawiy, 1 Maitin services in taking depositions and 
 (N. C), 44; Bell v. McLean, 3 Vt. the acknowledgment of a deed, were 
 185. not ijroper subjects of book charge. 
 
 * Rargeant v. Pettibone, 1 Aik. * Easly v. Eaken, 1 Cooke(Tenn.), 
 (Vt.) 'i^'i. 38; Boardman t). Keeler, 2 Vt. 65; 
 
 * Minorw. Ir\-ing, 1 Kirby (Conn.), Phenix v. Prindle, 1 Kirby (Conn.), 
 158; Foy v. Slyfield, 3 Vt. 246; 207. 
 
 Earners v. Dunn, 2 Root (Conn.), 59. ' Hawell v. Barden, ante. 
 But Bee Harbison v. Hawkins, 81
 
 SEC. 144.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 403 
 
 the money, be admissible to estn))lisli tlie fact that S. had 
 received the amount pledged by any one subscriber.' 
 
 There are many matters which may become the proper 
 subject of book charge hy the agreement of parties, or by 
 their usual course of dealings, which otherwise would not be ; 
 therefore when an item in an account is objected to as not 
 being properly chargeable upon book, the party may show, 
 if he can, that it was agreed between the parties that it should 
 be so charged, or that charges are warra7ited by the usual 
 course of dealing between the jyaHies. Thus, where there is 
 a special contract in writing between the parties, it cannot, 
 nor can any of its incidents, properly be made the subject 
 of book charge, as interest accruing upon a note, contract, 
 bond, etc. ; but if the parties so agree^ or if such charges, re- 
 lating to the same contracts between the same parties, have 
 formerly been made upon the partfs book, and settled by the 
 other party without objection, such charges afterwards made, 
 as between the parties, and growing out of the same con- 
 tracts, would doubtless be regarded as proper, and the same 
 may be said as to rent for the use of lands, etc.,^ because in 
 such a case the parties have established a species of usage 
 as between themselves which is operative until destroyed by 
 the objection of the other party. 
 
 Nothing which grows out of a collateral agreement can be 
 made the subject of book charges. Thus, where goods are 
 furnished to A. under an agreement hy B. to pay for them 
 if A. does not, the goods cannot be charged to B. in ac- 
 count, ))ut the remedy of the party is upon the special 
 agreement.^ Nor can any mere claim for damages arising out 
 of a special contract or from the neglect, default, or miscar- 
 riage of another, be made the subject of a book charge,"* nor 
 can goods left with a person to be sold on commission,^ nor 
 damages arising IVom a tort.^ 
 
 ^ Sypher v. Savery, 39 Iowa, 25S. ilar collateral agreement relating- 
 
 * Case V. Berry, 3 Vt. 332 ; Beach to services. 
 V. Mills, 5 Conn. 493 ; Swing t). * Fry v. Slyfield, 3 Vt. 75 ; Far- 
 Sparks, 7 N. J. L. 59 ; Spear v. rand v. Gage, 3 Vt. 3'26. 
 Peck, 15 Vt. 566 ; Darlington v. * Brisch v. Hoff, 1 Yeates (Penn.), 
 Taylor, ante. 198 ; Kerr v. Love, 1 Wash. (U. S. 
 
 ^ In Skinner v. Conant, 2 Vt. 75, C. C.) 172. 
 
 this rule was adopted under a sim- * Swing v. Sparks, 7 N. J. L. 59.
 
 404 EVIDENCE. [chap. XIII. 
 
 Sec. 115. Time of Making Entries, Etc. 
 
 It is no ohjcH'tion to a hook that the entries are made by 
 the party from data rurnished him by liis workmen, if he 
 knoios the lact.s therein stated. Thus, in a Penn.sylvauia 
 case,' the party saw his lime, in general, eitlier loaded at the 
 kiln or delivered to the vendees, but not always, and trusted 
 to his wagoners tor some of his charges ; yet his book of 
 charjies for the lime was allowed to <ro to the jury. In 
 another c:ise, a butcher's servant, carrying out meat, uni- 
 formly marked in pencil the quantity delivered, vvhich his 
 master copied into his book on his return. The book was 
 lield receivable.^ 80, where one of two butchers (partners) 
 customarily maiked the scores of meat with chalk on a cart, 
 and the other, before the cart went out again, copied the 
 scores into the book, it was held receivable, on the oath of 
 both [)artners.^ It is no ol>jection to the book, though the 
 entries be first made on a slate and then ti'anscribed by the 
 party, if done in the ordinary course of his making such 
 entries,'' though properly they should be transcribed daily ; 
 and where it was left in doubt, whether a day or two after, 
 they were rejected ;^ and they will, of cour.se, be rejected 
 if it do not appear that the party made the entries on the 
 slate. l)ut it is left to be inferred that they were made by 
 a servant, who could attest to them himself.^ And where 
 the journeyman made the entries, some of them on a slate, 
 whence they were c()[)ied by the master — some in a day or 
 two, some in a week, some [)erhaps not short of two weeks, 
 without di.stingui.shing which was longer or shorter, the book 
 was held altogether inadmissible. And much stress was laid 
 on there being better evidence — the journeyman himself ; 
 they .--hould at least have been l)oth made and transcril)ed at 
 or al)oiit the time the work was done ; and the party should 
 distinguish the entries so made from those made more loosely, 
 
 * Curran v. Crawford, 4 S. & R. * Faxon v. Hollis, 13 Mass. 427 ; 
 
 (Penn.)3. Kossler v. M'Conachy, 1 Rawle 
 
 " In-,Taham v. Bockius, 9 S. & R. (Penn.), 441. 
 
 (Penn.)28.5. But see Smith ?). Lane, "^ Ogden v. Miller, 1 Browne 
 
 12 R. & R. (Penn.) 80. (Penn.), 147. 
 
 ' Smitti V. Sandford, 12 Pick. " Di-ummond v. Hyams, 1 Harp. 
 
 (Mas.s.)139. (S. C.) 2G8.
 
 SEC. 145.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 405 
 
 or the whole must be rcjeeted.^ A book is receivable as 
 evidence, though the work be charged while in progress, and 
 before it be completed ; as where a tailor made his charges 
 on the work being cut out and delivered to his journeymen, 
 who worked in the same house with him. Such mode of 
 keeping books as is usual and known to all tradesmen can- 
 not safely be declared bad by the court. In some trades the 
 work is in hands for several days, and goes through more 
 than one hand ; and the entry may be made during the 
 period of its manufacture, or at a stated time when it has 
 progressed a certain length. The court would not say a shop- 
 keeper could charge goods not yet measured or weighed off, 
 nor a tradesman work not yet begun ; but they hesitated to 
 say that a blacksmith who has prepared and weighed iron 
 work, and then charges before he puts it on the wood, which 
 might take him a week, or a chairmaker who makes and 
 paints the chairs and charges them before sent to be gilt, 
 shall not read his book.^ 
 
 The entry must be in the book of the party, Kept by him 
 for the purpose of his daily accounts, generally, with all 
 those persons who may have dealings with him, and must 
 be made in conformity to the prevalent manner of his keep- 
 ing the book, and in a regular course with the other charges. 
 If they stand isolated on the front leaf of the book, and not 
 falling into a regular order with the other charges, they will 
 be rejected.^ So if on a separate sheet, especially when it 
 appears that the party in fact keeps an account l)Ook.* So 
 of a mutilated piece of paper, which appears to have been 
 torn out of a book, in which the name of neither party ap- 
 pears, which contains no charges against the defendant, and 
 which is unintelligible without explanation by the plaintiff.^ 
 Where six charges, amounting to six hundred and fifty dol- 
 lars, were on one of the last leaves of the book, separated 
 from all the entries by intervening blank leaves, and dated 
 
 * Kessler v. M'Conachy, 1 Rawle ^ Lynch tJ. Hugo, 1 Bay (S. C), 
 (Penn.), 441. 33. 
 
 '' Kaughley v. Brewer, 16 S. & R. " Prince v. Smith, 4 Mass. 455. 
 ><Penn. ) 133. * Hough v. Doyle, 4 Rawle 
 
 (Penn.), 291.
 
 40G EVIDENCE. [chap. XIII. 
 
 tliiring the same period witli thiiteeii other charges made in 
 the body of the hook, appiuvnlly reguhir, the six charges 
 were held i)roi)erly to be no part of the book, and inadmis- 
 s>ible, the .siine as c-nt nes on a separate leaf.* Charges on sev- 
 eral disconnected pieces of paper were rejected.^ After the 
 defendant's demand a^crned against the plaintiff, the latter 
 caused a series of charges to be continnonsly written down in 
 his regular book against the defendant, ranging through several 
 yeai-s, without a single intervening charge. The l)ook was 
 held clearly inadmissible as evidence of such charges.^ But 
 in Vermont, an entry of a service as counselor at law on a 
 separate slii) of paper, filed according to the party's usual 
 practice, was received.* 
 
 To make the book admissible for any purpose, it must con- 
 tain the original entries of the party made by himself, and 
 must be an account of his daily transactions.^ And one 
 reason why they unist not appear to be made by another is, 
 because he is then jyrima facie a witness, and must be pro- 
 duced.^ But regard is had to the party's degree of educa- 
 tion, and if he cannot write so as to make entries, they may 
 be made by another.'' If it clearly appear that the entries 
 are not original, either upon inspection or from extrinsic 
 tcstinionv, they are to ])e wMthheld as incompetent evidence.^ 
 Being original entries, the question arises upon the form in 
 which they are to be kei)t. Among the European conti- 
 nential nations, which have adopted the civil law as the 
 basis of their own, this proof by book account also prevails. 
 If we judge of its form from the French Code, and the more 
 approved French writers on jurisprudence, who confine it to 
 merchants of good standing, it wall be seen that the avenues 
 
 ' Wilson v. Wilson, 4 N. J. L. 04. KaiT v. Stivers, 34 Iowa, 123 ; 
 
 " Thompson v. McKelvey, 13 S. Mai-sh's Case, 30 Wis. 531. 
 
 & R. (Penn.) 126. * Eastman v. Moulton, 3 N. H. 
 
 ' Swing V. Spai-ks, 7 N. J. L. HO. l.")6. 
 
 * Bell r. M'Lean, 3 Vt. 18.5. ' Prince v. Smith, 4 Mass. 455 ; 
 
 ' Curren v. Crawford, 4 S. & R. Eastman v. Moulton, 3 N. H. 156. 
 
 (Penn.) 5 ; Steri-itt v. Bull, 1 Binn. « Cogswell v. Dolliver, 2 Mass. 
 
 (Penn.) 237; Pnnce v. Smith, 4 222 ; Curren ■?>. Crawford, 4 S. & R. 
 
 Mass. 4.5.'); Eastman v. Moulton, 3 (Penn.) 3; Pnnce v. Smith, 4 Mass. 
 
 N. H. 156 ; Swing v. Si^arks, ante; 455 ; Swings. Sparks, 7 N.J. L. 59.
 
 SEC. 145.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 407 
 
 to abuse are partially closed by the cautious inanuer in which 
 accounts must be arranged and checked in order to give 
 them the character of competent proof. ' Yet the book itself 
 is not such evidence as will warrant a sentence in favor of 
 the party producing it.^ It is but semi-proof, which may be 
 rendered perfect by the suppletory oath of the party. But 
 in many of the States of this country, where this kind of 
 evidence is left to be framed by citizens of every occupation 
 and every variety of language and character, and that, too, 
 in their own way, any considerable degree of safety derived 
 from the forms of book-keeping is the last thing to be ex- 
 pected. Yet books are rarely rejected for a defect of form, 
 even in those States where they are not brought down to 
 semi-proofs, and where, in the hands of inexperienced tribu- 
 nals, it is almost of course that, being received, they should 
 reach the effect of prima facie evidence. Being the original 
 or first entries of the party in his own hand, these books are 
 the least suspicious when kept in the form of daily entries in 
 a single journal or day-book, of the debts and credits of the 
 different persons with whom the party deals, in the order of 
 dates, without blanks, chasms or marginal references. In 
 France, if any of these requisites are wanting, the book is 
 not competent evidence.^ This is the most perfect form, 
 and one which has never been questioned in the American 
 courts, where book accounts are received in any way. 
 But generally they do not require anything like these for- 
 malities in order to render i>ooks competent. At least, the 
 entries should, in all cases, be strongly and clearly confirmed 
 by common-law evidence, even where the oath of the party 
 is required. Still they are competent, that is to say, they 
 stand something above zero, though they may come short of 
 the standard of crediliility. One striking instance is in re- 
 ceiving entries kept ledgerwise ; that is to say, where the 
 account of each man dealing with the party is kept by itself, 
 in a separate department of the book ; thus affording every 
 
 ' Code de Com. Liv. 1, tit. 2 ; des * 1 Dom., p. 444, b. 3, tit. 6, § 3, 
 Livres de Commerce, art. 12 ; Poth. art. 9. 
 
 des Obi. nos. 719, 720. ' Code de Com. tit. 2 ; des Livres 
 
 de Commerce, art. 8, 10.
 
 4(J8 EVIDENCE. [chap. XIII. 
 
 lacility for iiiuk'toctcd interpolation, cither ante or^;o.s-; litem 
 wjtaiii. Yd .siR'li book.s tire receivahle.' Books tluis kept 
 were received, though the entries in question were inter- 
 mixed witli various charges, notes, receipts and memoranda 
 relating to the party's dealings with others, in whatever 
 blank spaces he happened to find, without any regard to the 
 order of dates or pagcs.^ 
 
 But whether in a day-book or ledger form, the entries must 
 appear to have been made daily, or they cannot be admitt<id.^ 
 If it jippears at any stage or in any way, that charges arising 
 at ditferent dates were in fact made at the same time, the 
 book is not evidence.'* It must also be apparent that the 
 entries were intended as book charges, in account with tiie 
 identical party against whom they are offered in evidence.^ 
 If they are kept merely as a memorandum between the party 
 and another, they are inadmissible.*^ Arbitrary marks fixed 
 to the entries, not intended to charge the vendee, but merely 
 to inform the porter and prevent a delivery of similar articles 
 twice, cannot be used to aid in the evidence of deliveiy, 
 especially if not always made by the same person making the 
 residue of the entry, nor by the party nor his clerk.''' So, a 
 book kept by a forgeman to settle hy with his customers, 
 though it name the vendees, and sometimes the price, is not 
 evidence ao-ainst the latter.^ It is not an insurmountable 
 objection to the competency of the book, that there be 
 erasures and corrections. Its character is not thus destroyed 
 as a book of original entries. The alteration is open to ex- 
 planation, and the objection goes to the credit only.^ But 
 it is a serious objection against its credit ; and if gross, siis- 
 
 ' Swift's Ev. 81, 82 ; Rodman v. ' Rhoades v. Gaul, 4 Rawle 
 
 Hoop's Ex'i-s, 1 Dall. (U. S.) 85; (Penn.), 404 ; Rogers ?). Old, 5 S. & 
 
 Faxon v. HoUis, 13 Mass. 427 ; Wil- R. (Perm.) 404 ; Smith v. Lane, 12 
 
 son V. Wilson, 6 N. J. L. 94 ; Cogs- id. 80. 
 
 well V. Dolliver, 2 Mass. 217. " Smith ■«. Lane, 12 S. &R. (Penn.) 
 
 ' Cogswell V. DoUiver, 2 Mass. 80. 
 
 217. '' Rhoades v. Gaul, ante. 
 
 ' Eastman v. Moulton, 3 N. H. « Rogers v. Old, 5 S. & R. (Penn.) 
 
 156; Smith v. Lane, 12 S. & R. 404. 
 
 (Penn.) 80. » Sargeant V. Pettibone, 1 Aik. 
 
 * Eastman v. Moulton, 3 N. H. (Vt.) 355. 
 156.
 
 SEC. 145.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 409 
 
 picious, or unexplained, it will destroy the competency of the 
 book. And so of any other fraudulent a[)pearances.' Not 
 only the day-book, but, if it be posted, the ledger must be 
 produced, that it may be seen what credits there are. This 
 was held where post-marks appeared on the day-book.^ And 
 it is the same in whatever way the fact of posting may be 
 made to appear. The book being competent as a whole, 
 almost any series of figures, abl^reviations and words, which 
 can be explained into a signitication, will do for particular 
 cluu'ges, and regard is always to be had to the party's degree 
 (if education, the nature of his employment, and the manner 
 of his charges against others.'' But the charges must be 
 specific ; that is to say, they must denote the particular work 
 or service charged, as it arises daily, and the (piantity, num- 
 ber, weight, or other distinct designation of the materials or 
 articles sold or furnished, and attach the price or value to 
 each item.'' Accordingly, a bricklayer's charge of "190 
 days' work" was rejected; it should be placed in the book 
 daily, being entered at the time as it occurs ;^ and a 
 physician's charges " for medicine and attendance," and an- 
 other thus : " thirteen dollars for medicine and attendance on 
 one of the general's daughters in ciu-ing the whooping cough," 
 were also rejected as too indefinite.^ But this is a matter 
 which must reside very much in the discretion of the judge, 
 to be exercised according to the nature of the subject, and 
 its susceptibility of being precisely charged. Where, within 
 this rule, to be applied on the examination of witness^^s and 
 otherwise, the charge is sufficiently specific, it will l)c re- 
 ceived ; and such was the course in judging of a physician's 
 bill and admitting it.' A receipt in the account book, pur- 
 porting to be signed by the vendee, is not receivable in proof 
 
 » Eastman v. Moufton, 3 N. H. 1 N. & M'Cord (S. C), 130 ; Haga- 
 
 156. man's Case, 4 N. J. L. 370. 
 
 * Prince v. Sweet. 2 Mass. 569 ; ^ Lynch v. Peine, ante. 
 Eastman v. Moulton, 3 N. H. 156. * Hughes v. Hampton, 2 Const. 
 
 ^ Prince v. Smith, 4 Mass. 455. Rep- (S. C.) 745. 
 
 * Hughes V. Hampton, 2 Const. ' Schmidt v. Quin, 1 Rep. Const. 
 Rep. (S. C.) 745 ; Lance v. M'Kenzie, (S. C.) 418. 
 
 2 Bail. (S. C.) 449 ; Lynch v. Petrie,
 
 410 EVIDKNCK. [CIIAr. XIII. 
 
 as an on»^iiial entry.' It' tlio [nk-cs arc not cairicd oiil. tlie 
 l.ooLs arc imperfect, and if adnii.<sil)le at all, prove nothing 
 as; to the price, ar.d the jury cannot guess at that ; .so the 
 ehargc goes virtually for iiniliiiiir '^ We have already seen 
 that, .so far from heing prim.iry evidence, supeiior in degree 
 to the mere oral testimony of (h.sintcrcslcd witnesses, books 
 are treated l)V the ca>cs, according to their true character, as 
 evidence secondary to common-law proof. It was in one 
 case hastily held that the party's book must l)e produced 
 like any other written evidence, as standing higher upon the 
 >ealc, or that its absence must be accounted for, before proof 
 by witness .should be received.^ When the party is sworn, 
 the book nnist be produced, for there it is the [)rincipal evi- 
 dence ;* and if it be lo.st, the party los's his oath.^ In such 
 u case, the contents of the book may be proved ; l)ut this 
 must be by connnon-law evidence, though the party made 
 the entry himself If proved by another who made the 
 entries, the book must be in court, or its absence accounted 
 for ; and so where the entries of a third person, decea.sed, 
 are the subject of proof In such case, the contents of the 
 paper itself being in question, they mu.st be proved like those 
 of any other papei', l)y itself, if it can be had. Nor will the 
 excu.se that t\w party resides at a great and inconvenient di.s- 
 tauce, be received.^ The rule as to showing the contents of 
 documents l)y themselves only has l)e(>n applied to account 
 books by several cases. '^ But e.xtracts from the books of 
 foreign merchants, verified by the oaths of tlicir clerks, were 
 received, the court saying it would be unreasonable to recpiii-e 
 the books themselves.^ It is well settled, that a party may, 
 in his discretion, waive; his books altogether, and rely upon 
 
 * Stprritt V. Bull, 1 Binn. (Penn.) ' Keller ?\Or(l, 1 Dall. (U. S.)310; 
 234. Hcvriiig v. Levy, 4 Mart. (La. N. 
 
 ■" Hagaman's Case, 6 N. J. L. 370. S.) 383 ; Smith ?'. Peay, 2 Bail. (S. 
 
 ' K<'lly V. Holdship, 1 Browne C) 394; Nicholson V. Withei-s, a 
 
 (Penn.), 36. M'Cord (S. C), 428. 
 
 * Nicholson v. Withers, 2 M'Cord " Bell v. Keely, 2 Yeates (Penn.). 
 (S. C), 428. 2.5."). And see Lewis v. Bacon, 3 H. 
 
 * Pi-ince V. Smith. 4 Mass. 4J).'). & M. (Va.) 89. See Elms v. Chee- 
 " Smith V. P.'uy, 2 Bail. (S. C.) vis. 2 M'Cord (S. C), 349. 
 
 394.
 
 SEC. 145.] SHOP BOOKS, ACCOUNT BOOKS, ETC. 411 
 
 liis common-law proof, l)y witiicsises or otherwise.' The party 
 may take his ticcount and proof from his adversary's book. 
 But the non-production of his own hook Avould many times, 
 and especially if caUcd for by his adversary, be a heavy 
 circumstance against him.- Books are evidence, both of the 
 items charged and the price or value carried out, subject to in- 
 quiry on other evidence.^ Properly attested, they are prima 
 facie evidence of the delivery of articles of merchandise — "* 
 indeed, both of sale and delivery ; and in case of services, 
 they are evidence of retainer to do the service, the doing of 
 it, and the delivcvy of materials in the course of the service.* 
 The book is to be taken together, with its charges and credits, 
 especially where both are of the same date.^ The party's 
 books would be admissible on a collateral point in a cause, as 
 if, in an action to recover money from the defendant, it should 
 be material to determine the state of his accounts with 
 another.' But it was afterwards held that, the third person 
 being himself a witness, and his oath better evidence than 
 his books, he should be produced. The case would not then 
 come within the necessity on which this kind of proof is 
 founded." Entries made upon loose sheets of paper are not 
 to be presumed to have been made as daily minutes of the 
 parties' business transactions, and are not admissible in evi- 
 dence. To render a book evidence, it must appear to have 
 been regularly kept in such a manner as to afford a .stiong 
 presumption of its accuracy ; in other words, the charges in 
 the handwriting of the party must appear in such a state 
 that they may be presumed to have been his daily minutes 
 of his transactions and business.^ But if the book account 
 
 ' Levenworth v. Phelps, Kirby * Foster v. Sinkler, 1 Bay (S. C). 
 
 (Conn.), 71 ; Cambioso v. Maffett, 2 45. 
 
 Wash. (U. S. C. C.) 101 ; Nicholson " M'Bride v. Watts, 1 M'Cord (S. 
 
 V. Withers, 2 M'Cord (S. C), 428; C), 384. 
 
 Read v. Barlow, 1 Aik. (Vt.) 145, * Harrington v. Hall, 2 Aik. (Vt.) 
 
 147, 148, per Skinner, C. J. ; Pal- 175. 
 
 mer v. Green, 6 Conn. Rep. 14, 17 ; ' Mifflin v. Bing-ham, 1 Dall. (U. 
 
 Bernham v. Adams, 5 Vt. 313; S.) 272. 
 
 Whiting -y. Corwin, 5 Vt. 451. * Juniata Bank of Pennsylvania 
 
 ^ Palmer v. Green, 6 Conn. 14. v. Brown, 5 S. & R. (Penn.) 226. 
 
 ' Ducoign V. Schreppel, 1 Yeates ® Richardson v. Emery, 2 N. H. 
 
 (Penn.), 347. 220.
 
 412 EVIDKNCE. [CIIAP. XIII. 
 
 a[)p(';ir.s to hiivc been legulaily kept, and the charges wore 
 matlc at or about the time the work was done, or iiiaterialti 
 ibiiiid, it will not be rejected merely because it is proved by 
 the party's suppletory oath that the entries were not in- 
 variably made on the same day the work was done, or articles 
 finnished.' Neither the maimer nor the form in which the 
 book is kept is material, so that it appears to have been fairly 
 and honestly kept ; thus, an account for work, entered on 
 one leaf of a book with no intervening charges, is admissible, 
 supported by the suppletory oath of the party, though the 
 entry is in pencil.* 
 
 ' Morris v. Briggs, 3 Cush. " Gibson v. Baily, 13 Met. 
 (Mass.) 342. (Mass.) 537.
 
 CHAPTEE XrV. 
 
 RES GEST^. 
 
 SECTION. 
 
 146. What is General Rule. 
 
 147. "Bodily Suffering- or Mental Anguish. 
 
 148. Statements made by Applicant for Life Insurance. 
 
 149. Statements made before the Principal Fact. 
 
 150. Illustrations of the Rules relating- to. 
 
 151. How far Acts and Sayings of Parties to a Written Contract at 
 
 the Time of Making it, are Admissible. 
 
 152. Declarations as to Possession of Lands. 
 
 153. Spontaneity of the Acts or Declarations, what is. 
 
 154. Acts, etc., Before and After the Principal Facts. 
 
 155. Illustration of the Rule relating to res gestae. 
 
 156 Declarations of Conspirators, when E\adence against co-con- 
 spirators. 
 
 157. Statements of Conspirators, when not part of the res gestOB. 
 
 158 Writings in jiossession of Conspiratoi-s, before or after appre- 
 hension. 
 
 Sec. 146. What is General Rule. 
 
 It is a well-settled rule of evidence that the declarations 
 and acts of the principal parties to an act, as well as the 
 circumstances surrounding them and accompanying the 
 transaction at the time of the principal fact, may be given 
 in evidence in a controversy between the parties relative 
 thereto as a part of the res (/esice, which are calculated to 
 show the nature of the act, and are in harmony with it. 
 JBut in order to he admissible they must be immediately con- 
 nected with the material inquiry involved in the issue, and 
 must have occurred at the time of the transaction, or if not 
 precisely concurrent, so closely connected thereun'th that they 
 may be said to spring from it, and thus tend to explain it. 
 They must be so closely connected with the principal act in 
 point of time as to be spontaneous and voluntary, and to pre- 
 clude all possible idea of deliberate design. Indeed, it has 
 been said that the declarations or acts must be the natural 
 or inseparable concomitants of the principal fact in contro-
 
 411 
 
 EVIDENCE. 
 
 [chat. XIV. 
 
 vcrsiv, iio that they may be presumed to have been induced 
 1)V the same motive that led to the act itself, and so closely 
 allied thereto in point of time as obviously to form a part 
 of the transaction, and nuist be calculated to unfold its nature 
 and quality. If there is anything which raises a suspicion 
 that they were intended to deceive, and were made or done 
 in bad faith, the court not only mai/, but should, exclude 
 liieiu.' 
 
 ' Kv^ga V. State, 6 Cold. (Tenn.) 
 f.lT ; Elkins v. Hamilton, 20 Vt. (527 ; 
 Carter v. Buchanan, 3 3a. 513 ; 
 Fitieltl V. Richardson, 34 Vt. 410 ; 
 Athertou v. Tilton, 44 N. H. 452 ; 
 Meek v. Perry, 36 Miss. 190; 
 Springer 1'. Droach, 32 Ind. 486 ; 
 Crowther v. Gibson, 19 Mo. 365 ; 
 Lund V. Tyngsborough, 9 Cush. 
 (Mass.) 36; Koch v. Howell, 6 W. 
 & S. (Penn.) 350 ; Clayton v. Tuck- 
 er, 20 Ga. 452 ; Curtis v. Avon, &c., 
 R. R. Co., 49 Barb. (N. Y.) 148; 
 Stewart v. Hanson, 35 Me. 506 ; 
 Clai-k V. Ru.sh, 19 Cal. 393 ; Russell 
 7>. Frisbee, 19 Conn. 205. And this 
 is applicable to actions civil or crim- 
 inal. Hamilton v. State, 36 Ind. 
 280. If a declai-ation is in itself a 
 fact in the transaction, or is made 
 by a pei'son while doing an act, and 
 serves to explain it, it is a part of 
 the res gestw; but if it is merely 
 a recital of a past transaction, it is 
 not, although it may have some 
 relation to an act which a person 
 may be doing when he makes such 
 declaration. Haynes v. Rutter, 24 
 Pick. (Ma.ss.) 242; Bank v. Ken- 
 nedy, 17 Wall. (U. S.) 19 ; People v. 
 Brotherton, 47 Cal. 388; Sill v. 
 Reese, id. 294 ; Landell v. Hotch- 
 ki.ss. 4 N. Y. Sup. Ct. 685 ; Burlew 
 V. Hubbell. 1 id. 235 ; Parker v. R. 
 R. Co., 109 Mass. 449 ; .Jordant v. 
 Osgood, id. 457. Declarations or 
 circumstances accompanying an act 
 in controversy, may be proved in a 
 proper ca-se, as connected with and 
 explanatory of the principal act. 
 
 although they might not be ad- 
 missible as independent evidence. 
 Hoyer v. Stevens, 1 Woodb. & M. 
 (U. S. C. C.) 290 ; Jones v. Brown- 
 field, 2 Penn. St. 55 ; United States 
 i).Omeara, 1 Cranch (U. S. C.C.)> 165 ; 
 Webb v. Kelly, 1 Ala. 349 ; Yarbor- 
 ough V. Moss, 9 Ala 382 ; Hoi)er v. 
 Edwards, 20 Ala. 528 ; Sanfoi-d v. 
 Howard, 29 Ala. 684 ; Bragg v. 
 Massie, 38 Ala. 89 ; Cornelius v. 
 State, 12 Ark. 782 ; Robinson v. 
 Lane, 19 Ga. 337 ; Rigg v. Cook, 9 
 111. 336 ; Strange v. Donohue, 4 Ind. 
 327 ; Austin v. Swank, 9 Ind. 109 ; 
 Franklin v. Woodland, 14 La. Ann. 
 188 ; Corinth v. Lincoln, 34 Me. 310 ; 
 Stewart v. Hanson, 35 Me. 506 ; Du- 
 vall V. Medtart, 4 H. & J. (Md )14; 
 Curtis V. Moore, 20 Md. 93 ; Elliott 
 V. Stoddard, 98 Mass. 145 ; Plumer 
 V. French, 22 N. H. 450; Johnson 
 V. Elliott, 26 N. H. 67 ; Tucker v. 
 Peaselee, 36 N. H. 167 ; State v. 
 Huntley, 3 Ired. (N. C.) L. 418 ; Slitt 
 V. Wilson, Wright (Ohio), 505 ; Wet- 
 more V. Mell, 1 Ohio St. 26 ; Pos- 
 tems V. Posterns, 3 W. & S. (Penn.) 
 127 ; Hood v. Hood, 2 Grant (Penn.) 
 Cas. 229 ; Rees v. Livingston, 41 
 Penn. St. 113; Tui-pin v. Brannon, 
 3 McCord (S. C), 261 ; Martin v. 
 Simpson, 4 id. 262 ; Pains v. Jenk- 
 ins, 2 Rich. (S. C.) 106 ; Blair v. 
 CoflTman, Overt. (Tenn.) 176 ; Kerby 
 V. State, 7 Yerg. (Tenn.) 259 ; Evans 
 V. Jones, 4 id. 461 ; Elkins v. Ham- 
 ilton, 20 Vt. 627 ; Gillet v. Phelps, 
 12 Wis. 392. But to make the dec- 
 larations of a party evidence in
 
 SEC. 
 
 146.] 
 
 RES GEST^. 
 
 415 
 
 111 order to make declarations a part of the res gestce they 
 musty in all cases, be contemjtoraneous with the main fad ; 
 they must have been made at the time of the act done, to which 
 they relate, and must be well calculated to unfold the nature 
 and quality of the facts they were intended to explain, and 
 to so harmonize them as obviously to form one transaction} 
 
 his favor, as a part of the res gestm, 
 they must be connected with the 
 material fact or inquiry involved in 
 the issue. Tomkins v. Reynolds, 
 17 Ala. 109. Carter v. Buchanan, 
 3 Ga. 573 ; McKee v. People, 36 N. 
 Y. 113 ; Mitchum v. State, 11 Ga. 
 615 ; Cole v. Cheshire, 1 Gray 
 (Mass.), 441 ; Mason v. Palmer, 8 
 Allen (Mass.), 337 ; People v. Ver- 
 non, 35 Cal. 9 ; Hundy v. Johnson, 5 
 Md. 450; Wright v. Boston, 126 
 Mass. 181 ; Sessions v. Little, 9 N. 
 H. 271 ; State v. Shelledy, 8 Iowa, 
 477 ; Steam Navigation Co. v. Dan- 
 dridge, 8 Gray (Md.), 248 ; Cramer 
 V. Shrimer, 18 Md. 140; Hall v. 
 James, 3 McCord (S. C), 222. In 
 order to be admissible, they must 
 be so connected with some material 
 act as to explain or qualify it, or 
 show the intent with which the act 
 was done. Thus, in an action 
 brought by A. against B. as the 
 owner of a certain brig in which A. 
 had shipped merchandise, for the 
 non-delivei-y of such merchandise, 
 it appeared that B. was the general 
 owner of the brig, and that C, on 
 the 17th of September, and before, 
 was the authorized master ; but 
 that B., on the 18th of September, 
 took from on board of the brig her 
 papers and put them into the cus- 
 tody of D. which were never re- 
 turned to the brig ; and that said 
 merchandise was shipped after this 
 transaction. B. claimed that he, at 
 this time, revoked the authority of 
 C. as master ; and that C. then sur- 
 reptitiously obtained other papers, 
 and ran off with the vessel, sailing 
 
 her without any authority from B. 
 To establish this claim, B. intro- 
 duced, with other evidence, the tes- 
 timony of D., thatB., when he deliv- 
 ered the papers to him, said that 
 " C.'s wife intended to go in the brig, 
 and if so, he was feai-ful there 
 would be difficulty, and he could 
 not let the vessel go ; he did not 
 want the vessel to go to sea, if C.'s 
 wife was going in her." It was held 
 that these declarations, so made, 
 were admissible for the purpose for 
 which they were offered. Russell 
 V. Frisbie, 19 Conn. 205. But where 
 there is no hmnediate connection 
 between the act and the declaration, 
 it cannot be i-egaixled as a part of 
 the res gestcB. Thus, where a party, 
 having taken up and removed an 
 ancient fence, put down a stone in 
 one of the post-holes, where it re- 
 mained, and the next day he de- 
 clared that he put it there as a 
 bound, it was held, that this decla- 
 ration was not so connected with the 
 act done as to constitute a part of it, 
 and was, therefore, inadmissible 
 evidence for such party. Noyes v. 
 Ward, 19 Conn. 250. 
 
 * HosMBR, J., in Eves •». Tuttle, 3 
 Conn. 250 ; Mitchum v. State, 11 
 Ga. 615. Res gestcB, says the court 
 in Carter v. Buchanan, 3 Ga. 513, 
 are the circumstances, facts and 
 declarations lohich grew out of the 
 main fact, are contemporaneous with 
 it, and serve to illustrate its char- 
 acter. Where the question was, 
 whether certain property taken un- 
 der execution belonged to the 
 judgment debtor, it was held that
 
 41('. 
 
 EVIDENCE. 
 
 [ClIAP. XIV. 
 
 The entire value of this ohiss of evidence depcntls upon its 
 spontaneity, and is predicated upon the idea that being sj)oii- 
 ianeou.'i, springing from the act itself, and forming a part of 
 it in point of time, before any idea of deliberate design or 
 pMri)()se to make evidence for each other has entered the 
 minds of the parties, it tends to explain, unfold and throw 
 litrht upon the transaction. 
 
 Sec. 147. Bodily Suflfering or Mental Anguish. 
 
 It is for this reason, and upon this ground, that the dec- 
 larations of a party who has been injured and is sulFcring 
 
 statements by the debtor to a clerk 
 employed by him, as to whom he 
 was employed for, were admissible 
 as part of th(! res gcitcc. Statements 
 by the party in possession of cer- 
 tain jiroperty, that the business was 
 his, and was only run in his father's 
 name for protection, wei-e held inad- 
 missible, as being something more 
 than merely explanatoi-y of the 
 possession. Sweet v. Wright, 57 
 Iowa, 510. The declaration of a 
 
 51. In an action against a consta- 
 ble for selling certain hogs belong- 
 ing to the plaintiff, as the property 
 of the person in possession, the 
 declaration of such person that the 
 hogs belonged to the i)laintiff, made 
 before the levy, was held admissi- 
 ble, as part of the res gestcB, showing 
 the character of the possession, and 
 as against the defendant claiming 
 under her. Sharp v. Miller, 3 Sneed 
 (Tenn.), 42. In an action upon an 
 
 person in possession of land, that he a^eement by the defendants, that 
 
 took possession as agent of another, 
 is admissible in evidence as a part 
 of the res gestcB in action against his 
 alleged principal. Kirkland v. 
 Trott, 66 Ala. 417. Upon the trial 
 of an issue as to whether certain 
 notes were paid, the testimony of the 
 party claiming to have paid them, 
 that, in the absence of the other 
 party, he threw them into a stove, 
 calling the attention of bystanders 
 to the fact that they were the notes 
 in controvei-sy, is inadmissible, as is 
 similar testimony on the part of the 
 bystandei-s. Cumins v. Leighton, 9 
 HI. App. 186. On trial of A. for 
 rape upon B , it was held that the 
 circumstances of an assault by A. 
 upon C, B.'s father-in-law, when 
 C. came to her rescue dui-ing her 
 struggle with A., wore part of the 
 res gi.-'trr. iiiid B. might testify that 
 C. wa.s iliiifl at the time of the trial. 
 Thompi^oii V. State, 11 Tex. App. 
 
 P. should account to the plaintiff for 
 certain goods sold by the latter to 
 P., the testimony of the plaintiff in 
 reference to the state of accounts 
 between him and P. was held ad- 
 missible, although it necessarily 
 introduced conversations between 
 them, as such conversations were a 
 part of the res gestcB. Fox v. Park- 
 er, 44 Barb. (N. Y.) 541. An ac- 
 tion was brought upon a bond given 
 to release a barge which had been 
 attached to enforce a lien upon it for 
 lumber furnished to the builder by 
 the plaintiff. It was held that dec- 
 larations of the builder's agent who 
 purchased the lumber, made to the 
 plaintiff while transacting the busi- 
 ness, as to the person for whom he 
 purchased it, and as to the amount 
 thereof used in building the barge, 
 were admissible as part of the res 
 gestCB. Hopi>y v. Mosher, 47 Barb. 
 (N. Y.) 501.
 
 SEC. 147.] 
 
 RES GEST^. 
 
 417 
 
 from the efiects of the injury, made during such period of 
 suffering, are admissible to show the extent of such suffer- 
 ing.^ Indeed, whenever the bodily or mental feelings of a 
 person are material, the usual expression of such feelings 
 made at the time in question are, as to such facts, original 
 evidence. If they were the natural language of the affec- 
 tion, whether of body or mind, they furnish satisfactory and 
 generally the only evidence of its existence, leaving it for 
 the jury to say whether they were real or feigned.^ There- 
 fore exclamations of pain,^ and complaints of suflering, either 
 in body or mind, resulting either from sickness or an injury 
 to the person,^ are treated as original evidence to prove the 
 
 * Illinois, &c., R. R. Co. v. Sutton, 
 42 111. 438 ; Gray v. McLaughlin, 
 26 Iowa, 279 ; Jex r>. Board of Ed- 
 ucation, 1 Hun (N. Y.), 157 ; Burn- 
 ham V. State, 38 Tex. 662. 
 
 "" Phillips V. Nully, 29 Ala. 628 ; 
 Hyatt V. Abrams, 16 Mich. ISO; 
 Howe V. Plaintield, 41 N. H. 135 ; 
 Perkins v. Concord, 44 N. H. 223 ; 
 Kent V. Lincoln, 32 Vt. 591 ; People 
 V. "Williams, 3 Parker Cr. (N. Y.) 
 84 ; Stone ■?). Watson, 1 Ala. Ld. 
 Cas. 236 ; Caldwell v. Mui-phy, 11 
 N. Y. 416 ; Fry v. Bennett, 3 Bosw. 
 (N. Y.) 200 ; Baker v. Griffith, 10 
 id. 140 ; Lusk v. McDaniel, 13 Ired. 
 (N. C.) L. 485. 
 
 3 Hyatt V. Adams, 16 Mich. 180. 
 In this case exclamations of pain 
 uttered by a patient were held to 
 be original evidence of suffering 
 and admissible to show malpractice 
 on the part of a physician, but not 
 for the purpose of aggravating the 
 damages. 
 
 * Howe V. Plainfield, ante. Such 
 expressions are regarded as natural 
 evidence, and are to be submitted to 
 the jury, with all the circumstances 
 attendant upon their expression, to 
 determine whether they are real or 
 feigned, and to give them such 
 weight as they may deem them 
 entitled to in view of all the attend- 
 
 27 
 
 ant circumstances. Gray v. Mc- 
 Laughlin, 26 Iowa, 279 ; Phillips v. 
 Kelley, 29 Ala. 628 ; Johnson v. State, 
 17 id. 618 ; Looi)er v. Bell, 1 Head. 
 (Tenn.) 373. And if such statements 
 are made, after the action for 
 damages is commenced, to a phy- 
 sician, to enable him to form a 
 medical opinion as to the patient's 
 condition, such statements are com- 
 petent as a part of the res gestcB ; but 
 the time when they were made may 
 detract from their weight. Barber 
 V. Merrian, 11 Allen (Mass.), 322; 
 Towle V. Blake, 48 N. H. 92 ; Tay- 
 lor V. Gr. Trunk R. R. Co., id. 304. 
 So it has been held, in an action 
 against a physician for malpractice, 
 that exclamations of pain uttered by 
 a patient may be given in evidence 
 as a part of the res gestCB, for the 
 i:)urpose of establishing the claim, 
 but not in aggravation of the dam- 
 ages. Hyatt -15. Adams, 16 Mich. 180. 
 And indeed it may be stated gener- 
 ally that the statements of a sick or 
 injured person as to the nature, 
 symptoms, or extent of the disease 
 or injury, are always admissible to 
 show his actual condition at the time 
 when they are made. They must 
 not relate to the past condition of the 
 person, but to his real condition at 
 the time when the declarations are
 
 418 
 
 EVIDENCE. 
 
 [chap. XIV. 
 
 fact and extent of suffering, l)ut not to prove the cawse there- 
 
 miide. Hunt v. People, 3 Park. Cr. 
 (N. Y.) 5(59 ; People v. WiUiains, id. 
 84 ; Perkins v. Concord R. R. Co., 
 44 N. H. 223; Stone v. Watson, 1 
 Ala. Sel. Caa. 23t) ; Bakor v. (Ii-itiin, 
 10 Bosw. (N. V. Superior Ct.) 140; 
 Caldwell v. Murphy, 11 N. Y. 41(] ; 
 Denton v. State, 1 Swan (Tenn.), 
 297 ; Kent v. Lincoln, 32 Vt. 591 ; 
 Bacon v. Charlton, 7 Cush. (Mass.) 
 581 ; Lush v. McDaniel, 13 Ired. (N. 
 C.) 485 ; Earl v. Tapper, 45 Vt. 275 ; 
 Spatz V. Lyons, 55 Barb. (N. Y.) 476 ; 
 Insurance Comjiany v. Mosley, 8 
 Wall. (U. S.) 387. But it is held that 
 the declarations of a jiei'son under 
 such cii'cumstances as to the manner 
 in which it occurred, however con- 
 temporaneous with the act itself, are 
 not admissible. State v. Davidson, 
 30 Vt. 377. But it seems that the 
 catise of the injury may be proved 
 by declarations of a pai-ty injured, 
 so nearly allied, as to the time of 
 making them, with the injury itself, 
 that they may faii-ly be regarded as 
 a part of the res gestCB. Stiles v. 
 Danville, 42 id. 282. In Quaife v. 
 Chicago and Northwestern Railway 
 Co., 48 Wis. 513, it was held that in 
 an action of damages for pei-sonal 
 injuries by negligence, the plaintiff 
 having at the defendant's request 
 submitted to a physical examina- 
 tion by surgeons, testimony that, 
 judging from the examination, in- 
 cluding what she said at the time, 
 and her indications of suffering, the 
 injury complained of existed, was 
 admissible, although the witness 
 swore he could discover no external 
 evidence of it. This is based on 
 Barber r. Memam, 11 Allen (Mass.), 
 322, where Bigelow, C. J., says: 
 ** The opinion of a surgeon or phy- 
 sician is necessarily fonned in part 
 on the statements of his patient, de- 
 scribing his condition and symptoms, 
 and the causes which have led to the 
 
 injury or disease under which he 
 appeai-s to be suffering. This 
 opinion is clearly competent, as 
 coming from an expert. But it is 
 obvious that it would be unreason- 
 able, if not absurd, to i-eceive the 
 opinion in evidence, and at the same 
 time to shut out the reasons and 
 grounds on which it was founded. 
 Such a coui'se of practice would take 
 froili the consideration of court and 
 jury the means of determining 
 whether the judgment was sound, 
 and his ojiinion well founded and 
 satisfactoi-y. * * * 'phe pai-ty 
 producing the wtness, and who 
 relies on his opinion, .should be al- 
 lowed the privilege of showing that 
 his testimony, as an expert, is the 
 result of due inquiry and investiga- 
 tion into the condition and .symptoms 
 of the patient, past and present. 
 * * * The existence of many 
 bodily sensations and aihnents 
 which go to make up the symptoms 
 of diseavse or injury can be known 
 only to the person who experiences 
 them. It is the statement and de- 
 scription of these which enter into 
 and form part of the facts on which 
 the opinion of an expert as to the 
 conditions of health or disease is 
 founded." And at p. 326 he says : 
 '* It is suggested, in behalf of the 
 defendant, that the statements in the 
 present case were made by the 
 plaintiff after the commencement of 
 the action. But we do not think 
 that for this reason only they ought 
 to have been rejected. It was a 
 circumstance which may have de- 
 tracted from the weight of the 
 evidence of the opinion of the phy- 
 sician, so far as it was founded on 
 these statements. But as the state- 
 ments were made to a medical man, 
 for the purpose of receiving advice, 
 they were competent and admissi- 
 ble." The same doctrine is held ia
 
 SEC. 147.J 
 
 RES GEST^. 
 
 419 
 
 of, unless made at such a time as to entitle them to be 
 regarded as a part of the res gestoe. ' 
 
 Matteson v. N. Y. Cent. R. R, Co., 
 35 N. Y. 487. The injury occurred 
 on the 7th of July, and consisted in 
 concussion of the spine. Declara- 
 tions made by the injured person in 
 the following October, after suit 
 brought, to physicians while they 
 were examining her to ascertain her 
 condition, were held admissible in 
 her behalf. The court said: "Her 
 <;omplaints and i-epresentation of 
 pain and suffei-ing, together with 
 appeai'ance and conduct, necessarily 
 formed the basis of their judgment. " 
 "This is the case notwithstanding 
 the examinations referred to were 
 made by the physicians after the 
 suit was commenced, and %vith a 
 view as to their testifying therein as 
 to the result of their examinations. 
 It does not appear that the patient 
 knew that such was their object, and 
 if she did know it, the jury were 
 to judge whether her representa- 
 tions were false or her testimony 
 conclusive." So, in Brown v. N. Y. 
 Cent. R. R. Co., 32 id. 597, testimony 
 that the injured party complained 
 " all the time since the injury," was 
 held admissible. To the same effect 
 Caldwell v. Murphy, 11 id. 416, 
 where the complaints were made 
 during ten or eleven days after the 
 injury, and in Werely v. Persons, 28 
 id. 344, where they were made 
 during two or three weeks after the 
 injury. In Aveson v. Kincaid, 6 
 East, 188, it was held that the 
 complaints and statements of the 
 injured party at the very time of the 
 occurrence, not only as to bodily 
 suffering, but as to the circumstances 
 of the occuri*ence, are admissible as 
 res gestm. Second. That the state- 
 ments of the injured party sub- 
 sequently and not substantially at 
 the time of the occurrence, as to the 
 
 circumstances of the occurrence, are 
 not admissible, whether made to a 
 physician oi* to a non-expert. Third. 
 Complaints and statements of the 
 injured party as to his present 
 j)hysical condition, although sub- 
 sequently to the occurrence and 
 indeed after suit is brought for the 
 injuries, are admissible, whether 
 made to a physician or to one who 
 is not an expert. Lush v. McDaniel, 
 13 Ired. (N. C.) 485; Chapin v. 
 Marlborough, 9 Gray (Mass.), 244 ; 
 Goodwin v. Harrison, 1 Port. (Ala.) 
 80 ; Kennard v. Burton, 25 Me. 39 ; 
 Denton v. State, 1 Swan (Tenn.), 
 279. 
 
 ' Gray v. McLaughlin, 26 Iowa, 
 279 ; Matterson v. N. Y., &c., R. R. 
 Co., 35 N. Y. 487 ; Kennard -w. Bur- 
 ton, 25 Me. 39. Such evidence may 
 be said to be nataral evidence, as 
 distinguished from personal evi- 
 dence. Phillips V. Kelly, 29 Ala. 
 628. In Ohio, &c., R. R. Co. v. Ham- 
 mersley, 28 Ind. 371, upon the 
 trial of an action brought by a 
 father to recover for the death of his 
 minor son, caused by the negligence 
 of a railroad company, it was sought 
 to introduce, on behalf of the de- 
 fendants, the declarations of the son, 
 made the day following the injury, 
 as to the cause of the accident. It 
 was held that the evidence was 
 properly excluded. The son could 
 not admit away the cause of action ; 
 nor could he, without regard to the 
 question of minority, have released 
 the company from any liability in- 
 curred by it to the father. If he 
 had survived the accident, he would 
 have been a competent witness to 
 prove the facts ; but his previous 
 admissions could only have been 
 given in evidence to impeach his 
 testimony. In an action brought by
 
 420 EVIDENCE. [chap. XIV. 
 
 The dcclanitions or rci)resentatioiis of a sick or injured 
 i)crson as to the luiture, syinptoius and cUect of the disease 
 midor which he is suffering are admissible as original evidence, 
 ■whether they are made to a physician or any other person. 
 Thus, in an action to recover damages for personal injuries, a 
 l)hysician, called as a witness, is allowed to rc'[)cat the state- 
 ments of the plaintiii' herself, made to liim for the i)urpose of 
 receivinir medical advice, as to the character and seat of her 
 injuries and sensations, they being a part of the facts on 
 which his opinion as an expert, in regard to her condition, 
 is fouiidcil. The fact that such statements were made after 
 the commencement of the action, mat/ detract from thawnrjld 
 to be given to the jihijsiciaii's ojnnion, so far as- founded on 
 these statements, but does not render them incompetent.^ 
 
 As a matter of course, such representations made to a 
 physician in attendance upon him are entitled to greater 
 weight than those made to others, because he is better able 
 to judge of their truth. ^ 
 
 Sec. 148. statements made by Applicant for Life Insurance. 
 
 The doctrine of res f/estce in England has been carried so 
 far as to hold that in an action by a husband v\)on a i)()licy 
 of insurance on the life of his wife, where the (piestion re- 
 lated to the state of her health at the time when the policy 
 was ettected, a witness for the defendants was allowed to 
 state the result of a conversation she had had with the de- 
 
 the son, the statement would have ^ Barber v. Mei-riam, 11 Allen 
 
 been properly introduced as an ad- (Mass.), 322 ; Perkins v. Concoi-d, 
 
 mission against himself. In People 44 N. H. 223. In an action against 
 
 V. Gi-ahani. 21 Cal. 261, at the trial a town for an injury sustained by 
 
 of an indictmeit for an assault, with reason of a defect in a highway, 
 
 intent to commit a rape on a young groans or exclamations, uttered by 
 
 child, whose tender age prevented the plaintiff at any time, expressing 
 
 her from giving any material testi- present pain or agony, and i-eferring 
 
 mony, the court allowed the ques- by word or gesture to the seat of the 
 
 tion to be put to the mother, " Did pain, are admissible in evidence for 
 
 the child tell you Jinw this occurred the plaintiff. Bacon v. Charlton, 7 
 
 at the time?" and it was held that Cush. (Mass.) 581. 
 
 the question was not admissible, ' Gray u Young, 4 McCord (S. C), 
 
 because this class of evidence is not 31 ; Aveson v. Kinnaird, 6 East, 188 ; 
 
 competent to establish the ca2ise of Gilchrist v. Bale, 8 "Watts (Penn.), 
 
 an injury. 355.
 
 SEC. 149. J RES GEST^. 421 
 
 ceased, shortly after the surgeon who was consulted in effect- 
 ing the insurance had given a certificate of her health, in 
 which conversation the deceased had expressed an appre- 
 hension that she should only live a few days, and had added 
 that she had not been well from a time preceding her being 
 examined by the surgeon. The court held that the conver- 
 sation was admissible, notwithstanding the general rule which 
 excludes the declaration of a wife as against her husband ; 
 and the more especially so, as the surgeon had l)een first 
 called by the plaintifi^', and had admitted that he had formed 
 his opinion respecting her health principally from the satis- 
 factory answers she had given to his inquiries.^ 
 
 Sec. 149. statements made before the Principal Fact. 
 
 On a trial for murder by poisoning, statements made by 
 deceased in conversation shortly before he took the poison, 
 have been received in evidence for the purpose of proving 
 the state of his health at that time f and, on the same 
 ground, it has frequently been held, in actions or indictments 
 for assault, that what a man has said about himself to his 
 surgeon was evidence to show what he sufi'ered by reason of 
 the assault.^ Where, upon an indictment for an abortion, 
 the fact of a deceased party going to the respondent's house 
 for [)urpose of having him commit an abortion was mate- 
 rial, it was held that Jier declarations as to her purj^ose in 
 going there, made at the time of her leaving, were competent 
 as a part of the res gestm}- So, where a respondent was in- 
 dicted for discharging a gun at a person and wounding him, 
 and the person injured was a witness on the trial, and it ap- 
 peared that the affray took place on the premises of the re- 
 spondent, it was held that the respondent might prove the 
 declarations of the witness, made while on his way to the 
 place where the affray happened, the witness, upon being 
 inquired of on cross-examination, having denied them. In 
 such case, evidence might be proper of previous threats made 
 by the witness as to the respondent, and of previous affrays 
 
 ^ Aveson v. Lord Kinnaird, 6 East, East, 198, per Lawrence, J.; R. v. 
 
 188. Guttridg-e, 9 C. & P. 472, per Parke, 
 
 « R. V. Johnson, 2 C. & Kir. 354. B. 
 
 ^ Avesou V. Lord Kinnaird, 6 * State v. Howard, 32 Vt. 380,
 
 422 EVIDENCE. [cilAr. XIV. 
 
 ])ct\vecn them, if so connected with the aflV;iy in (lucstion as 
 to have any tendency to show that the lespondcnt, at the 
 time, had jnst cause of ahirm, and to fear serious injury to 
 his i)orson or pro^jcrty. But where a ai&e is so indefinitely 
 stated upon the l)ill of exceptions as to leave it uncertain 
 how far evidence ottered was admissible, it will not be pre- 
 sumed that there was error in the court below in I'cjecting 
 the evidence.^ So, on an indictment for highway robbery, 
 the fact that the prosecutor, a few hours after the attack 
 made upon him, complained to a constable that he had been 
 robbed, will perhaps be admissible, though the witness 
 cannot be farther asked whether, on making the complaint, 
 the prosecutor mentioned the name of the prisoner.^^ It 
 would seem, also, that, in prosecutions for rape, proof that 
 the woman, shortly after theinjuiy, ccmiplaincd that a dread- 
 ful outrage had been perpetrated upon her, would, in the 
 event of her death, ))c receivable a,s independent evidence ;' 
 and if the prosecutrix were called as a witness, such com- 
 l)laint Avould a fortiori be admissible as tending to confirm 
 her credit.^ In no case, however, can the parliculars of the 
 complaint be disclosed by witnesses for the prosecution, 
 either Jis original, or as confirmatory evidence, but the details 
 of the statement can only be elicited by the prisoner's coun- 
 sel on cross-examination.^ It is difficult to see upon what 
 principle this rule is founded, where the complaint is offered 
 JUS confirmatory evidence ; because, if witnesses were per- 
 mitted to relate all that the prosecutrix had said in making 
 her original complaint, such evidence would furnish the best 
 test of the accuracy of her recollection, when she was sworn 
 to describe the same circumstances at the trial. * 
 
 ' State V. Goodnch, 19 Vt. 116. that it was only confirmatory evi- 
 
 » R. V. Wink, 6 C. & P. 397 ; R. dence. 
 
 r. Osborne, C. & Marsh. 624. " R. v. Megson, 9 C. & P. 420 ; R. 
 
 » R. V. Megson, 9 C. & P. 420 ; R. v. Clarke, 2 Stark. 241 ; 1 East P. 
 
 V. Osboi-ne, C. & Marsh. 624, per C. 444, 445 ; 1 Hale, 633. 
 
 CRE.SSWELL, J. In R. V. Gutti-idge, 9 " R. v. Walker, 2 M. & Rob. 212 ; 
 
 C. & P. 471, -where a prosecutrix R. v. Osborne, C. & Marsh. 622 ; R- 
 
 for a rape was absent from the trial, v. Quigley, Ir. Cir. R. 677. 
 
 Parke, B., rejected proof of hei- " See R. v. Walker, 2 M. & Rob. 
 
 complaint, apparently on the ground 212.
 
 SEC. 150.] RES GEST^. 423 
 
 111 actions for criminal conversation, if it is material, with 
 the view of increasing or diminishing the damages, to ascer- 
 tain upon what terms the husband and wife lived together 
 before the seduction, their language and deportment towards 
 each other, their correspondence together, and their conver- 
 sations and correspondence with third persons, are original 
 evidence.' But to guard against the abuse of this rule, it 
 must be proved by some evidence independent of the date 
 appearing on the face of the letters, 2 that they were written 
 by the wife to the husband prior to any suspicion of miscon- 
 duct on her part, and when, consequently, no grounds 
 existed for imputing colkision.'^ It is not, however, neces- 
 sary, in the aljsence of other suspicious circumstances, to 
 explain the cause of the husband and wife living apart at the 
 time when the letters were written, though, of course, it is 
 expedient that such exphmation should, if possible, be given.* 
 
 Sec. 150. Illustration of the Rule Relating to Res Gestae. 
 
 There are other declarations and acts, which are admitted 
 as original evidence, being distinguished from hearsay by 
 their connection with the principal fact inider investigation. 
 The affairs of men consist of a complication of circumstances, 
 so intimately interwoven as to be hardly separable from each 
 other. Each owes its birth to some preceding circum- 
 stances, and in its turn becomes the prolific parent of others ; 
 and each, during its existence, has its inseparable attributes, 
 and its kindred facts, materially aflecting its character and 
 
 ' Trelawney v. Coleman, 1 B. & dered by the husband to rebut this 
 
 Aid. 90 ; Willis v. Bernard, 8 Bing-. charge, but were rejected, on the 
 
 376 ; Winter v. Wroot, 1 M. & Rob. ground that no proof was given, 
 
 404 ; Gilchrist v. Bale, 8 Watts beyond their date, of the time when 
 
 (Penn.), 355. they, were sent. See ante, § 110 
 
 ^ Trelawney v. Coleman, 2 Stark, where this exception to the general 
 
 193, per- Holroyd, J. ; Houliston v. presumption respecting dates is 
 
 Smyth, 2 C. & P. 24, per Best, C. J. accidentally omitted. 
 
 This last case was an action for ' Edwards v. Crock, 4 Esp. 39 ; 
 
 board and lodging suppUed to a Trelawney v. Coleman, 1 B. & Aid. 
 
 wife, while living separate from her 90 ; Wilton v. Webster, 7 C. & P. 
 
 husband, in consequence of his 198. 
 
 cruelty ; and letters, purporting to * Trelawney v. Coleman, 2 Stark, 
 
 be wintten by the wife, were ten- 191.
 
 424 
 
 EVIDKNCE, 
 
 [chap. XIV. 
 
 osst'Utial to 1)0 known, in oiiUt to a right nndoistaneling of 
 it.s natniv. TIk'jjo .snrronnding circnnistance« may ahvaya 
 111' shown to tho jury along with the principal iaut, provided 
 they constitute pait.s of what are termed the reti f/cslce ; and 
 whether they do so or not mutit in each particular case be 
 determined hy tlie judge in the exercise of his sound discre- 
 tion, according to the degree of rchitionship which they bear 
 to that fact.' Thus, on the trial of Loid Georjre Gordon 
 
 ' Per Park, J., in Rawson v. 
 Haig-h, 2 Bing. 104 ; Ridley v. 
 Gyile, 9 Bing. 349, 352; Pool v. 
 Bri«lges, 4 Pirk. (Miuss.) 379; Allen 
 V. Duu<,-an, 11 Pick. (Ma.ss.) 30it. If 
 gooils consigned l)y A. to B. are in- 
 jured by the defendant whilst they 
 are in the hands of the earner, in 
 an action for the wrong, brought 
 either by A. or B., according to the 
 circumstances, it would be compe- 
 tent to either of them, being plain- 
 tiff, to establish his right of prop- 
 erty in the goods, by proof of such 
 an agreement between them as 
 either left the right of property and 
 action in himself, or vested it in him 
 by the delivery to the cari'ier. This 
 would be, it is true, nothing more 
 than an agreement between A. and 
 B., to which the defendant was not 
 privy ; but it would be evidence 
 against him, not as concluding any 
 right of his without his assent, but 
 a-s atTecting the nature of the trans- 
 action itself, and showing to whom 
 the injury was done. 1 Stark. Ev. 
 53; Murryt). Bethune, 1 Wend (N. 
 Y.) 19(3. In the example put, it may 
 be material to see the letters which 
 had passed between A. and B., the 
 dir<;ction of A. to his clerks or to 
 the carrier, from which to infer 
 the terms of the agreement and 
 the identity and destination of the 
 goods. In a late case the plaintiff 
 sued out a foreign attachment 
 against B., summoning the defend- 
 ant as garnishee. The summons 
 
 was served in November, 1828. On 
 the 21st of th(^ previous July the 
 garnishee had thirty barrels of B.'s 
 gin in his hands, which, V)y letter of 
 that date, he was dii-ected l)y B. to 
 hold, with the proceeds of that sold, 
 if any, subject to the order of G. ; 
 and, by letter of the August follow- 
 ing, the garnishee had acknowl- 
 edged that he held the gin and pro- 
 ceeds on account of G. These let- 
 ters were at tii-st excluded as not 
 being evidence of the garnishee, 
 under the notion that they were 
 naked declarations ; but on appeal, 
 the Sujireme Court held them clear- 
 ly admissible, as evidence of the 
 agreement by which the gin was 
 transfei-red to G. Cox v. Gordon, 2 
 Dev. (N. C.) 512; Jones v. M'Neil, 
 2 Bail. (S. C.) 471. On the other 
 hand, the holder of a check went 
 into the bank, and when he came 
 out, said he had demanded its pay- 
 ment. This declaration was held 
 inadmissible to prove a demand, as 
 being no part of the res gestcB. The 
 demand was the fact to be proved. 
 Brown v. Lusk, 4 Yerg. (Tenn.) 210. 
 It is difficult to lay downi any pre- 
 cise genei-al rule as to the cases in 
 which declarations are admissible 
 as part of the res gestCB, and the only 
 way of useful instruction is to pre- 
 sent the cases that have arisen under 
 this head and judge of the applica- 
 tion of the rules from these experi- 
 mental tests.
 
 SEC. 150.] EES GEST^. 425 
 
 for treason, the cry of the mob, who accompanied the pris- 
 oner on liis enterprise, was received in evidence, as forming 
 part of the res gestae, and showing the character of the prin- 
 cipal fact.' So, on an indictment for manslunghter, a state- 
 ment, made l)y the deceased immediately after he was 
 knocked down, as to how the accident happened, has been 
 held admissible f and similar evidence was received by Lord 
 Holt, in an action bronght l)y a hnsband and wife against a 
 defendant for wonnding the wife.^ At the trial of a hus- 
 band's libel for divorce on the ground of adultery, E. testi- 
 fied to seeing the libelee sitting in E.'s lap. R.'s wife testi- 
 fied that she requested her husband to hold the libelee in his 
 lap, she being ill at the time, while the bed was making. 
 R.'s wife testified that she left the room for a few minutes 
 while her husband was holding the libelee, and when she 
 returned he told her that E. had been in. R. testified to the 
 occurrence substantially as stated by his wife, adding that 
 E. came in while his wife was absent, and that he mentioned 
 the fact to her when she came back. It was held that the 
 statement of R. to his wife was comp^etent as in the nature of 
 a verbal act identifying the occasion as the same testified to 
 by E.^ 
 
 In an action against a surgeon, for negligently treating a 
 fractured thigh bone, the defendant, in support of his allega- 
 tion that he had placed the fractured limb upon a double- 
 inclined plane, at an angle of forty-five degrees, or there- 
 abouts, introduced a witness who testified to statements made 
 in the presence of the plaintiff", by the defendant to the wit- 
 ness, at the time when the defendant Ijrought the machine to 
 the plaintiff's house, about the principle u[)on which the 
 machine operated, and how it might be made a double- 
 inclined plane of any angle, by means of a screw. The evi- 
 dence was admitted, and on exceptions, the court held that, 
 both as res gestce and as a statement made in presence of the 
 party, they could not say that it was erroneously admitted.^ 
 
 ' 21 How. St. Tr. 514, 529. * Earle v. Earle, 11 Allen (Mass.), 
 
 '' R. V. Foster, 6 C. & P. 325. 1. 
 
 ^ Thompson v. Trevanion, Skin. ^ Moody t5. Sabin, 9 Cush. (Mass.) 
 
 402. 505.
 
 42^ F.VIDKNCE. [chap. XIV, 
 
 An oflSocr, called jus a witne.s.s for the coniinoiiwcallli in a 
 criminal ca-so, was Jiskcd what he did in consequence of what 
 wjus told him as to the commission of the offense, and an- 
 swered tiiat he started to look for the defendant ; and the 
 liresidini; Jndi^e admitteel the answer in evidence. It \va.s 
 hcUl. (hat the defendant had no ground of exception.' 
 
 The [tlainliir>-ucd the defendant for entering npon his land 
 and digging a ditch there. The defendant justified on the 
 ixround that he only cleared out an ancient ditch as he had a 
 rigiit to do, to drain his own land above the plaintifl''s. The 
 plaintiff" formerly owned the defendant's land, and sold the 
 same to him ; and C. formerly owjied the plaintitPs land. 
 It was hekl, that declarations of the i)laiMtiirto the defend- 
 ant, while owner of the defendant's land, an<l while negoti- 
 ating the .sale of it to the defendant, that he had a right to 
 drain it over C.'s land, were admissible in evidence.^ So, 
 also, where a person enters npon land in order to take 
 advantage of a forfeitnre, to foreclose a mortgage, to defeat 
 a disseizin,'' or the like ; or changes his actual residence or 
 (loniicil, or is npon a journey, or leaves his home, or returns 
 thitlier, or remains abroad, or .secretes himself ; or, in fine, 
 does any other act, material to be understood ; his declara- 
 tions made at the time of the transaction, and expressive of 
 its character, motive, or oljject, are regarded as " verbal acts, 
 indicating a present purpose and intention," and are there- 
 fore admitted in proof, like any other material facts.^ So, 
 npon an inquiry as to the .state of mind, sentiments, or dis- 
 positions of a person at any particular period, his contempo- 
 raneous declarations are admissible as parts of tlu? res gestoR.^ 
 In a suit for enticing away a servant, the servant's statement 
 
 'Commonwealth v. Moulton, 4 xvi, § 11 ; Rawson tj. Haigh, 2 Bing. 
 
 Gray (Mass.), 39. 99 ; Vacher v. Cock.«, M. & M. 353 ; 
 
 » Stetson V. Rowland, 2 Allen Smith v. Cramei-, 1 Bing. N. C. 585 ; 
 
 (Ma.s,s.), 591. Doe v. Arkwright, 5 C. & P. 575; 
 
 » Co. Lit. 49 b, 245 b ; Robinson Gorham v. Canton, 5 Me. 266 ; 
 
 «. Swett, 3 Me. 316 ; 3 Bl. Com. Thorndike v. City of Boston, 1 Met. 
 
 174, 175. (Mass.) 242. 
 
 * Bateman r. Bailey, 5 T. R. 512, ' Barthelemy v. The People, &c.» 
 
 and the observations of Mr. Evans 2 Hill (N. Y.), 248, 257. 
 upon it. in 2 Poth. Obi. Ai)p. No.
 
 SEC. 150.] RES GEST^. 427 
 
 at the time of leaving his master will be received, as tending 
 to show the motive of his departure ; ' and where an action, 
 of trover was brought against the assignees of a bankrupt, 
 and it appeared that the plaintiff, at the recommendation of 
 the bankrupt, had sent some goods to a dyer, and had told 
 him that the bankrupt would call and give directions about 
 them, it was held that these directions should have been sub- 
 mitted to the jury on behalf of the assignees, as affording some 
 evidence of a dealing with the goods, if not of the consent of 
 the true owner to such dealiuij.^ 
 
 In an action on the warranty of a horse, the question being 
 whether it had fits, and it being proved that the plaintiff kept 
 it in his livery stable, though its labor was needed, a witness 
 testified that he was directed by the plaintiff not to let it 
 because it had fits. It was held, that this testimony was 
 admissible as part of the res gestm.^ 
 
 So where the purchaser of a horse returned it to the ven- 
 dor with a message that "he would fix it all right," it was 
 held, that the fact might be considered l)y the jury with 
 other corroborative facts, in determining whether the pur- 
 chaser had promised to pay for the use of the horse, if the 
 jury were satisfied that the declarations were part of the act 
 of redelivering the horse.* 
 
 Where property was sold and transferred for the pur- 
 pose of paying debts due to the vendee and to other credit- 
 ors, the declarations of the vendor and vendee, at the time of 
 the delivery of possession under the sale, were held admissible 
 as part of the res gestae, as was the paper by which the ven- 
 dor assumed to pay the debts, to rebut the allegation of fraud ; 
 and also evidence that before the date of the sale the vendee 
 had borrowed money for the purpose of reloaning it to the 
 vendors.^ 
 
 In a Missouri case, a husband dying, his widow and heirs 
 made a division of his estate, including slaves, among them. 
 
 ' Hadley v. Carter, 8 N. H. 40. " Knauss v. Shiffert, 58 Penn. St. 
 
 "^ Sharp V. Newsholme, 5 Bing-. 152. 
 
 N. C. 713. " York County Bank v. Carter, 
 
 = Hersom v. Henderson, 23 N. H. 38 Penn. St. 446. 
 498.
 
 428 EVIDENCE. [CIIAP. XIV. 
 
 The widow afterwards dying, the administrators of the hus- 
 band instituted suit against persons ehiiniing inider the 
 widow, for the possession of eertain slaves tliat had l)eeii 
 jissif'-ned to the widow. It was held, that a bond exeeuted 
 by the heirs at the time, binding them to abide by the 
 division, l)ut which avos not signed l>y the widow, though 
 read over to lur and not objected to, was admissible in evi- 
 dence as part of the re.s f/efiice, in behalf of the administrators, 
 to show that the assigmnent was made to the widow as 
 dower and not absolutely.' 
 
 Where the issue was, wdiether certain property had been 
 sold to the defendant or a third person, it was held compe- 
 tent for the plaintiir to show that just before the sale he had 
 been advised not to sell the property to such third person, 
 and that he may prove this by the person who gave him the 
 advice.-^ Where it is sought to prove a sale of goods, and 
 a warranty thereof, it is proper to show all that was said 
 by the parties during the pendency of the negotiations.' 
 Where property is sold at a public sale, declarations of by- 
 standers are held admissible as evidence in regard to it.' 
 Where a person, at the time of loaning money, declares that 
 it is trust money, or money that belongs to a ward, it is 
 competent to be shown by him.^ Where a stock of goods 
 has been attached by a sheriff as the property of A. which 
 are claimed by B. by virtue of a sale from A. to him, it is 
 competent, in a suit to test the validity of B.'s title thereto, 
 for B. to show, by one who was called in to take an account 
 of the stock, a conversation at the time, between A. and B., 
 that the account of the stock was to be taken for the pur- 
 pose of turning it over to B. to satisfy a del)t due to him 
 from A. But in such a case it is not competent for the 
 sheriff, or other person, who is claiming to hold the goods as 
 A.'s property upon the attachment, to show the declarations 
 and conduct of A. at the time when the attachment was 
 
 ' Salmons v. Davis, 29 Mo. 176. * Stewart v. Severance, 43 Mo. 
 
 ' Brenner v. Frauenthal, 37 N. 322. 
 Y. 166. » Beasley v. Watson, 41 Ala. 234. 
 
 • Elliott V. Stoddard, 98 Mass. 
 115.
 
 SEC. 150.] RES GEST^. 429 
 
 made, and not qualifying or explaining any material fact in 
 the case not admissible.' 
 
 Nor is a card signed by the passengers on a train at the time 
 of an accident, which was not signed mitil two days after the 
 accident occurred, exonerating the officers from all blame, 
 admissible as a part of the res gestce in a suit against the 
 company for damages.^ But it is held that the acts and dec- 
 larations of the donor and donee at the time of an alleged 
 gift are competent to be shown to prove delivery, and a sub- 
 sequent recognition by the donor of the donee's title may 
 also be shown. Also that the statements of officials having 
 the direction of public Avork, made during the time that the 
 work was being prosecuted for a municipal corporation, to 
 persons engaged upon it, are admissible to show the manner 
 and circumstances under which the work was begun and 
 prosecuted.^ In an action against a railroad company for a 
 breach of contract in the transportation of goods, the decla- 
 rations of the engineer having charge of the train in which 
 the goods were being transported, in reference to the cause 
 of the delay, Avere held admissible as a part of the res gestce.^ 
 In an action upon a bond, given to release a barge which had 
 been attached to enforce a lien upon it for luml^er sold to the 
 builder by the plaintiff, it was held that the declarations of 
 the builder to the plaintiff while transacting the business as 
 to the person for whom he purchased it, and as to the 
 amount required in building the barge, were admissible as 
 part of the res gesloe.^ So declarations made by the husband 
 at the time of giving his wife money, as to the purpose for 
 which he gave it, as well as his representations as to the per- 
 son for Avhom he was acting when he received a h\\\ of sale 
 for his wife, are held admissible in an action in favor of the 
 wife.' 
 
 ' Pullman v. Newberrj% 41 Ala. * Sisson v. Cleveland, &c., R. R. 
 
 168. Co., 14 Mich. 489. 
 
 " Macon, &c., R. R. Co. v. John- . ° Happy v. Mosher, 47 Barb. (N. 
 
 son, 38 Ga. 409. Y.) 501. 
 
 ^ Brag-g V. Massie's Adm'r, 38 ' Kells v. Campbell, 2 Abb. App. 
 
 Ala. 89. (N. Y.) 492. 
 
 * Maher v. Chicago, 38 111. 266.
 
 430 EVIDENCE. [CIIAP. XIV. 
 
 In a suit by a creditor of the husband to set aside a deed 
 of i,nft made by a third person to the wife, on the ground that 
 the proi)erty wius purchiuii-d with the husljund's money, and 
 the deed a fraud, evidence of conversations between the 
 grantor and the person who negotiated the sale for the wife 
 at the time of the sale, were held properly admissible.^ In 
 an action against one for false representations in the sale of 
 property, it was held competent for him to .show that sim- 
 ilar representations were made to him by credible persons 
 previous thereto, the evidence having a tendency to acquit 
 him of bad faith in making the representations.- What is 
 said by a person at the time of an accident caused by him, 
 which has a tendency to prove that the accident was caused 
 by his carelessness, is admissible to establish his negligence, 
 as a })art of the res gestae.^ 
 
 It is held that, where a person's personal habits may fur- 
 nish a key to the act in question, they may be shown. Thus, 
 when a note was claimed to have been given to the plaintitl' 
 on Sunday, it was held competent for him to show that he 
 was the superintendent of a Sabbath school, which he in- 
 variably attended.'* Declarations of the testator, at the time 
 when a will is executed, are proper and competent evidence 
 upon the question of capacity.^ So it is held that the dec- 
 larations of a principal to a note, as to the relations thereto 
 of other parties whose names are thereon, made to the 
 plaintiff at the time of obtaining his signature thereto, are 
 admissible as a part of the res gestae.^ So, where a married 
 woman has signed and acknowledged a deed of lands, jointly 
 with her husband, in proceedings instituted by her to set 
 aside the deed on the ground of fraud or duress, she may 
 show the state of her mind and health at the time of her 
 acknowledgment, and that her husband had preceded this by 
 threats and menaces, which had put her in terror, and in- 
 duced the act against her will.^ So it is held that the 
 
 • Tevis t). Hicks, 41 Cal. 123. * Bates v. Bettis, 27 Iowa, 110 ; 
 » Beach v. Bemia, 107 Mass. 498. 1 Am. Rep. 260. 
 
 » Courtney v. Baker, 34 N. Y. ' Whitehouse v. Hanson, 42 N. 
 Sup. Ct. 529. H. 9. 
 
 * Bluckwell V. Hamilton, 47 Ala. ' Central Bank v. Copeland, 18 
 *70. Md. 305.
 
 SEC. 150.] RES GEST^. 431 
 
 declarations of a grantor, at the time of the execntiou of a 
 deed for the benetit of his creditors, are properly admissible 
 as a part of the res gesfce in a suit brought to set aside the 
 conveyance on the ground of fraud. ^ So declarations of a 
 grantor of real estate, made at the time when the conveyance 
 is executed, are admissible to show the intention of the 
 grantor in making the conveyance ;^ but declarations or ad- 
 missions made by a grantor afte)' the conveyance is executed 
 are not admissible.^ 
 
 In an action against a physician or surgeon for malpractice, 
 their statements made in the presence of the plaintifl" during 
 his treatment, or at the time when the plaintiff is discharged 
 from further treatment, are always admissible as a part of 
 the i-es gestceJ Where, in an action for malpractice by a 
 surgeon in treating a dislocation, as a fracture, it was shown 
 that if his diagnosis was correct, a grating sound would have 
 been heard upon manipulation of the liml), and it was held 
 that declarations made by persons who were present at the 
 time of the examination that they heard such a sound were 
 admissible.^ Where a person is sued for an assault and 
 battery, when the evidence tends to show that the defendant 
 was assaulted by the plaintiff and others upon the occasion 
 when the injury sued for was inflicted, the declarations of 
 any of the persons engaged in the assault upon him, as to 
 their intention and purpose, are held admissible as a part of 
 the transaction.^ Where personal property is sold and left 
 in the possession of the vendor, as agent of the vendee, in 
 an action to test the validity of the sale it is held that the 
 declarations of the vendor and vendee at the time of the sale 
 are admissible. Where it becomes material to show whether 
 a deed was delivered as an escrow, the acts and declarations 
 of a party, preceding the execution of the deed by him, may 
 be shown.^ Declarations made by a husband, at the time 
 
 ' Potter V. McDowell, 31 Mo. 62 ; * Hitchcock v. Burgett, 38 Mich. 
 
 Gillett V. Phelps, 12 Wis. 392. 501. 
 
 ' Kent V. Harcourt, 33 Barb. (N. ' People v. Roach, 17 Cal. 297. 
 Y.) 491 ; Badger v. Story, 16 N. H. '' Clark v. Rush, 19 Cal. 393. 
 168 ; Gamble v. Johnson, 9 Md. 605. '* Cheswell v. Eastham, 16 N. H. 
 
 * Myers v. Kinzie, 26 111. 36. 296 ; Badger v. Story, 16 id. 168. 
 
 * Piles V. Hughes, 10 Iowa, 579.
 
 432 EVIDKXCE. [ciIAr. XIV. 
 
 wlioii inoiioy belonging to his wife comes into liis possession, 
 are. if evincive of his purpose and intention, admissible as 
 evidence, when material, upon the question as to whether 
 such mon«v was received in trust lor his wife, or whether he 
 intended to reduce it to his own })()sscs.sion.' So the ilecla- 
 rations of a party, at the time of paying money to a creditor, 
 are admissible for the purpose of showing what application 
 wjis to be made of it ;-' the declarations of the vendor of 
 goods made at the time of the sale an^ a part of the resgesloi 
 for the purpose of establishing the sale and its purpose;^ 
 and in fact ever3'thing that takes place between the parties 
 to a verbal contract Ijcfore its completion ;* and it may be 
 stated, generally, that whenever it becomes material to ascer- 
 tain the nature of a particular act, and the intention of the 
 pei-son who did it, what he said and did at the time of doing 
 it is always admissible as a part of the transaction itself;* 
 as to ascertain the malady, or the true nature of its efiects 
 and symptoms, of a sick or injured person, whether made to a 
 l)hysiciun or others, but such declarations arc entitled to more 
 weight when made to a physician during his tieatment of the 
 patient.^ So the declarations of the owner of lands claimed 
 to have been dedicated to the public, both before and after 
 their use by the public, to show his intention.' So instruc- 
 tions given by a principal to his agent in reference to the 
 delivery of a message to, or the making of a demand of, 
 another, when the mes.sage is delivered or the demand made.® 
 ^\ hat is said by the parties to a sale in reference to it during 
 the pendency of negotiations.^ What is said by a person 
 when paying money to another, as to the application of it, 
 or as to whose money he is paying.'" To show whetlier goods 
 
 ' Johnson v. Johnson's Ex'i-a, 31 ^ Curtis v. Moore, 20 Md. 93. 
 Penn. St. 4.')0 ; Gicker's Arlm'r v. ' Stone v. Watson, 1 Ala. 236; 
 
 Martin, 50 Penn. St. 138 ; Moyer's Pei-kins v. Concord R. R. Co., 44 
 
 Appeal, No. 44, Weekly Notes of N. H. 223. 
 Ca,'^»'.s (Penn.), 527. ' Buchanan v. Curtiss, 25 Wis. 
 
 • Bank of Woodstock v. Clark, 25 001 ; 3 Am. Rep. 23. 
 
 ^t- ^^8. 8 Featherman v. Miller, 45 Penn. 
 
 • T):ilf> J^ Gower, 24 Me. 563. St. 06. 
 
 • Pit?rson V. Hoag, 47 Barb. (N. • Atherton v. Tilton, 44 N. H. 452. 
 Y-) 243. 10 Carter v. Beats, 44 N. H. 408.
 
 SEC. 150.J RES GESTJE. 433 
 
 were sold by one as his own, or as the agent of another, his 
 declarations at the time of the sale are admissible.' To sho\v 
 what title one claims to property in his possession, his decla- 
 rations relative thereto while he has the property in his 
 possession are admissible.- So where one sues for injuries 
 done to his property by another, while the property was in 
 the possession of a servant, the declarations of the servant at 
 the time of the injury as to the cause thereof are admissible. 
 So it has been held that the exclamations of passengers on a 
 railway train at the time of the happening of an accident ; 
 the declarations of bystanders at a public sale ; ^ the acts and 
 sayings of a constable at the time of making a levy ;^ of a 
 public surveyor when running a line to establish the character 
 or purpose of the survey ;' what is said by a claimant to the 
 sheriff at the time of a levy f what is said by a person 
 while engaged in carrying away property claimed by an- 
 other;^ what is said by the plaintiff in a writ of attach- 
 ment, as to his reasons for having it issued, made at the time 
 of its issue.^" Negotiations between parties are admissible to 
 show to whom credit was given, and to explain the trans- 
 action ;^^ instructions given by one of the parties to an 
 assistant ;'^ what is said by a person when money is paid to 
 him, to show whether it was received in full or not, as well 
 as to show upon what debt it was to be applied ;'^ statements 
 made by a person at the time when a demand is made upon 
 him for property, or for any purpose ;^* the declarations of 
 a servant at the time of leaving his master ;'^ the declarations 
 of a person engaged upon work, to show who ho was working 
 for and the nature of the contract ; '^ the declarations of a per- 
 
 ' Milne v. Leisler, 7 H. & N. 7S^. Ga. 624 ; Grandey v. McPherson, 7 
 
 ^ Patterson v. Flanagan, 1 Ala. Jones (N. C), 347. 
 
 (S. C.) 427. ' George v. Thomas, 16 Tex. 74. 
 
 ^ Toledo R. R. Co. v. Goddard, 25 ' Morgan v. Simms, 26 Ga. 283. 
 
 Ind. 185. * Drumwright v. State, 29 id. 430. 
 
 * Galena R. R. Co. v. Fay, 16 111. '" Wood v. Banker, 37 Ala. 60. 
 558. " Eastman v. Bennett, 6 Wis. 232. 
 
 " Stewart v. Severance, 43 Mo. '' Wilson v. Smith, 28 111. 495. 
 
 322. " Dillard v. Scruggs, 36 Ala. 670. 
 
 * Arnold v. Gorr, 1 Rawle " Lamphy v. Scott, 24 Miss. 528. 
 (Penn.), 223 ; Dobb v. Justice, 17 '" Hadley v. Carter, 8 N. H. 40. 
 
 '' Printop V. Mitchell, 17 Ga. 558. 
 
 28
 
 434 KMDKNCE. [chat. MV. 
 
 SOU Oil leaving home jls to wlieie ho wiis going luid the nature oi' 
 his business ;' dechu'utions of the principal to a note, ii6 to the 
 rehition of those whose names are aheady upon it, made 
 to one whose signature he obtains thereto f declarations of 
 one in the possession of piopert}', madi- at tin; time when 
 the pn)[)erty wtus delivered to him, to show the nature and 
 purpose of his possession,^ have been held admissible as a 
 l)art of the 7X's gestoi ; as the declarations of the vendor be- 
 fore the sale as to the character or quality of the goods ; •* or 
 of one in the possession of land, Jis to the extent of liis claim, 
 and the character of his occupaucy ; ^ or his intention in doing 
 a eertaiu act, as that, by clearing land and burning charcoal 
 thereon, he intended to settle and improve the lands.^ So 
 it has been held that the declarations of a person having per- 
 sonal property in his possession, made before any claim is 
 made to the proi)erty by another, ma}' be given in evidence 
 in an action between him and a person claiming the property, 
 l)ut that the weight to be given to such evidence is for the 
 jury.''' Thus it will be seen that, whenever the acts or dec- 
 larations of a party, made at the time of a transaction, and 
 so intimately connected therewith as to form a part of it, 
 which tend to explain the transaction, or to aid in arriving 
 at the real nature, character, and purpose of the transaction, 
 are admissible in evidence as well for as against the party 
 making them ; and such evidence is admissible not only in 
 actions between the parties themselves, but also in actions for 
 or against their personal representatives, or those who are 
 privy in interest with the parties. The justice of the rule, 
 pennitting all the acts and declarations of a party immediately 
 connected with it, and material thereto, to be given in evi- 
 dence to show the real intention, object and purpose of parties 
 to a contract, when any reasonal)le doubt exists from the 
 language of the contract itself, as well as the acts and dec- 
 
 ' State V. Howard, 32 Vt. 380 ; * Sailor v. Hertzogg, 2 Penn. St. 
 
 Autauqua Co. v. Davi.s, 32 Ala. 713. 182. 
 
 ' Whitehouse v. Han.son, 42 N. » Jones v. Brownfield, id. 55. 
 
 H. 9. ' Gei-ry v. Terrill, 9 Ala. 206 ; 
 
 ' State V. Schneider, 35 Mo. 533 ; Horton v. Smith, 8 id. 73 ; Trotter «. 
 
 Johnson v. Boylns, 26 Ala. 576. Watson, 6 Humph. (Tenn.) 509. 
 
 * Land v. Lee, 2 Rich. (S. C.) 168.
 
 SEC. 150,] RES GEST.E. 435 
 
 laratioiis of parties to any transaction, to show the real nature 
 and character of the transaction or act, is unquestionable. 
 The real intention of a person in a transaction, which is not 
 reduced to writing, can be gathered in no other way. Men 
 act from secret motives, and their declared intention is very 
 often quite at variance with the real motive which actuates 
 them. Therefore, the only real key thereto is their acts, and 
 any acts calculated to throw light upon that point, and in- 
 timately connected with it, are always admissil)le. Thus, it 
 has been held that, when fraud in the purchase or sale of 
 property is in issue, it is competent to show other similar 
 frauds committed by the same parties, at or near the same 
 time, as tending to establish the animus of the parties in the 
 transaction in question, and to show their fraudulent intent 
 — as, in a proceeding for the forfeiture of a distillery for 
 fraudulent distillation, it has been held competent to show the 
 fact that, by the decree of another court, liquors from the 
 same distillery had been forfeited. ' So, it has been held com- 
 petent to show in a proceeding for a forfeiture under the 
 internal revenue law, that the defendants have been guilty of 
 other similar frauds, in order to establish their fraudulent 
 intent.'^ So, in an action against a commission merchant for 
 fraudulently selling the goods of a customer to an insolvent 
 purchaser, evidence of similar fraudulent acts at about the 
 same time have been held competent upon the question of 
 intent,^ and in proceedings for forfeiture, under the customs 
 law, by means of false invoices, or undervaluation of goods, 
 it is held that evidence of previous similar transactions, both 
 before and after the transaction in question, may be shown.* 
 
 > United States v. One Distillery, 197 ; Wood v. N. Y., 16 Pet. (U. S.) 
 
 2 Bond (U. S.), 399 ; Butler v. Wat- 342; Buckley v. U. S., 4 How. (U. 
 
 kins, 13 Wall. (U. S.) 456. S.) 251 ; Alfonso v. U. S., 2 Story 
 
 "" United States v. Merriam, 3 (U. S.), 421. In Rex v. Davis, 6 C. 
 
 Chicago Legal News, 114 ; United & P. 177, it was held that, in a 
 
 States V. Thirty-six Barrels of High prosecution for receiving stolen 
 
 Wines, 7 Blatch. (U. S.) 469 ; United goods, it was competent to show that 
 
 States V. Four Cases Merinoes, 2 the respondents, who were pawn- 
 
 Paine (U. S.), 200. brokers, had received other stolen 
 
 ' Garth v. BuUard, 23 How. (U. goods from the same pei-son, with a 
 
 S.) 172. view to establish the scienter. But, 
 
 * Taylor u U. S., 3 How. (U. S.) while the rule as applied to this case,
 
 .J3t; EVIDEXCK. fniAP. XIV. 
 
 Tims it will 1)0 s(>cii thai, while, in order to show a person's 
 intent in a partienlar matter, transactions l)ctwccn the same 
 jjurf/'cs of Ji siiiiihir diameter nia}^ be shown, similar trans- 
 actions between othn- persf)ns, to which one of the parties 
 was a party, are never admissihle.^ 
 
 Sec. 151. How far Acts and Sayings of Parties to a Written Contract 
 at the Time of Making it, are Admissible. 
 
 The general rnle excludes all parol evidence in reference 
 to written contracts, which tends to alter, vary or control 
 their terms ; and this extends even to the exclusion of what 
 was said or done by the parties thereto before, at the time of, 
 or just after, the making of the contract. The entire agree- 
 ment of the parties — in the absence of fraud ormistake — is 
 regarded as behig merged in the writing itself; aiid when 
 there is no latent ambiguity therein, the wri'ing must speak 
 for itself, and be construed without resort to extrinsic evi- 
 dence. But, when the meaning and intent of the parties 
 to the instrument cannot be reasonably gathered from 
 its language, as where words are used, the ordinary 
 meaning of wdiich, applied to the contract, would be sense- 
 less ; or where the instrument is susceptible of a double 
 
 and generally as restricted in that Rapallo, J., in the case referred to, 
 case to transactions between the that "the fact that the jirisoner 
 same parties, may not be obnoxious made an unauthorized use of the 
 to criticism, yet the case itself, and name of one person, if established, 
 the considei-ation given the question shows that he was morally capable 
 by Glkney, J., on the trial, does not of committing' the same offense 
 entitle it to great weight as an against another, hut does not legiti- 
 anthority. The same rule, howevei-, maitly tend to show that he did so." 
 was adopted in Rex v. Dunn & Smith, ' Jones v. Knowles, a7ite. In 
 1 M. C. C. 147. In Coleman v. The State v. Howard, 32 Vt. 380, the 
 People, 55 N.Y. 81, it was held that respondent was arrested for pro- 
 evidence that the respondent had curing an abortion, and the fact of 
 1 eceived other stolen property from the death having been proved to 
 other persons was not admissible to have occurred at his house, and 
 establish the. ?de7i<er; and in People other circumstances tending to 
 v. Corbin, 56 N. Y. 3*53; 15 Am. establish the ci-ime, it was held that 
 Rep. 427, it wa,s held that evidence the declarations of the deceased at 
 of other forgeries by the respondent the time she left home, as to her 
 "waa not admissible in a prosecution pui^pose in going to the respondent's 
 against him for forging the name of house, were admissible as a part of 
 another person. It was well said by the res gestOB,
 
 SEC. 151.] RES GEST^. 437 
 
 construction essentially different from each other, as well as 
 in numerous other instances, parol evidence of what was 
 said or done by the parties at the time of the making of the 
 contract, the existence of a local custom or a usage of a 
 trade in reference to which the contract was made ; or by 
 which certain ordinary words are given a special and pecu- 
 liar meaning ; or a condition of things in the locality where 
 the contract was made, in reference to wdiich the contract 
 was made, may be given in evidence really as a part of the 
 7'es gestce, not to alter or vary the contract itself, but to 
 explain it, and ascertain the real intention and })urpose of 
 the parties thereto. Thus, where the meaning and applica- 
 tion of a written contract cannot be ascertained from the 
 instrument itself^ parol evidence may be given to explain its 
 true intent and meaning ;^ and this, whether the ambiguity 
 arises from the contract itself, or the mode of executing it ;2 
 and facts existing at the time of making the contract, to 
 which the words employed in it relate, may be proved as a 
 solution of the real intent, purpose and meaning of the par- 
 ties f as that a contract for the payment of money Avas made 
 with reference to Confederate money ;* or a custom, in refer- 
 ence to which the contract was made and by which a pecu- 
 liar meanino- is given to certain terms or phrases used there- 
 in ;^ but such custom is never admissible to vary a well- 
 established rule of law f or when opposed to the clear pro- 
 visions of the contract.'^ The circumstances attending the 
 
 » De Wolf V. Crandall, 1 Swee- " Thornington v. Smith, 8 Wall, 
 
 ney (N. Y.), 556 ; Suffern v. Butler, (U. S.) 12 ; Donley v. Tindall, ante. 
 
 21 N. J. 410 ; Sweet v. Shumway, ^ Carey v. Brig-ht, 58 Penn. St. 
 
 102 Mass. 365 ; Iron City Commer- 70 ; Hurlbert v. Carver, 37 N. Y. 
 
 cial College v. Kerr, 3 Brewst. 62 ; Harb v. Hammett, 18 Vt. 127 ; 
 
 (Penn.) 196 ; Hewlett v. Howlett, Collyer v. Collins, 17 Abb. Pr. (N. 
 
 56 Barb. (N. Y.) 467; Arthur v. Y.)467; Williams t!. Wood, 16 Md. 
 
 Roberts, 60 id. 580 ; Robinson v. 220 ; Drake v. Goree, 22 Ala. 409 ; 
 
 United States, 13 Wall. (U. S.) 363 ; Fitch v. Carpenter, 43 Barb. (N. 
 
 Harris v. Rathbun, 2 Abb. App. (N. Y.) 40 ; Willmering- v. McGaug-hey, 
 
 Y.) 426. 30 Iowa, 205 ; Wells v. Bailey, 49 
 
 =» Haile v. Pierce, 32 Md. 327 ; N. Y. 464. 
 
 Richmond R. R. Co. v. Snead, 19 « Boon v. Belfast, 40 Ala. 184; 
 
 Gratt. (Va.) 354. Shaw v. Spencer, 100 Mass. 382. 
 
 ' Richards v. Schlagelmick, 65 N. ' Lombardo v. Case, 45 Barb. 
 
 C. 150 ; Donley u Tindall, 32 Tex. 43. (N. Y.) 45.
 
 438 KVIDENCE. [ciIAr. XIV. 
 
 transiiction, jiikI wliat was .said and done by the })arties while 
 en<'a"'ed in the act of cxonitioii, may l)c resorted to, not to 
 vary, bnt to explain and apply the eontiarl,' and show the 
 real intention of the parties ;^ bnt u party cannot, even when 
 there is an anibignit}', be aUowed, in the absence of fraud, 
 to swear to what his nmhr .standing of the matter was, unless 
 the other party nndc'r>tootl the matter the same way? 
 
 So it is always competent to show that the contract was 
 made in furtherance of an illegal object, or is void for the 
 reason that it never had any legal existence ;* or where it 
 is silent as to the time or mode of payment, parol evidence 
 may be given to establish the understanding or agreement of 
 the parties in that respect ; and the same is true wdien any 
 essential feature or part of the contract has obviously been 
 omitted y" as, where a person has sold the good will of a 
 business, in what place his lousiness was located f or to show 
 the actual or an additional consideration of a contract or 
 deed, when the terms of the bargain are not specifically 
 stated ]'' or to identify property descriljcd in it, whether real 
 or personal f or to show that a sale mentioned in a Avritten 
 agreement was made by sample, and Avhether or not the 
 articles tendered correspond therewith f or the purpose for 
 
 * Foster v. McGraw, 64 Penn. St. "^ Venzan v. McGregor, 23 Cal. 
 464; Field v. Munson, 47 N. Y. 221 ; 339; Ohio, &c., R. R. Co. v. Mid- 
 Ins. Co. V. Thorp, 22 Mich. 146 ; dleton, 20 111. 629 ; Hinnemann v. 
 Goodrich ?•. Stevens, 5 Lans. (N. Y.) Rosenback, 39 N. Y. 98; Farmei-s' 
 230 ; Bambridge v. Wade, 20 L. J. Bank v. Winfield, 24 Wend. (N. Y.) 
 (Q. B.) 7 ; Gi-ant v. Lathrop, 23 N. 419 ; Lowrey v. Adams, 22 Vt. 160 ; 
 H. 67 ; Knights v. N. E. Worsted Donnell v. Simonton, 13 Minn. 301. 
 Co., 2 Cush. (Mass.) 271 ; Spencer v. = Dalano v. Gorhani, 48 N. H. 203. 
 Babcock, 22 Barb. (N. Y.) 326 ; * Leppoc v. Nat'l Union Bank, 32 
 Conner v. Cai-penter, 28 Vt. 237; Md. 136 ; Martin u Clarke, 8 R.I. 389. 
 Emery v. Webster, 42 Me. 204 ; * Paul v. Owings, 32 Md. 402 ; 
 RatcliflF V. Allison, 3 Rand. (Va.) Donley v. Tindall, 32 Tex. 43. 
 537 ; Carmony v. Hooper, 5 Penn. » Wai-field v. Booth, 33 Md. 63. 
 St. 305; Black v. Columbian Ins. ' Pierce v. Brew, 43 Vt. 292; 
 Co., 42 N. Y. 393 ; McGuire v. Stc- Nedvidek v. Meyer, 46 Mo. 600 ; 
 yens, 42 Miss. 724 ; Acker v. Ben- Landeman v. Ingi-aham, 49 id. 212 ; 
 der, 33 Ala. 230 ; Sigerson v. Cush- PeiTy v. Smith, 34 Tex. 277 ; Booth 
 ing, 14 Wis. 527 ; Crass v. Pearson, v. Hines, 54 111. 363. 
 17 Ind. 612 ; Halstead v. Meeker, * Button v. Ai-nett, 51 111. 198 ; 
 15 N. J. 136 ; Haideman v. Cham- Bancroft v. Grover, 23 Wis. 463. 
 bers, 19 Texas, 1. » Pike v. Fay, 101 Mass. 134 >
 
 SEC. 151.] RES GESTiE. 439 
 
 which a note was given, when not inconsistent with its 
 terms ;^ or for whose benefit a contract was made f or that 
 it was executed upon condition that some other person 
 sould sign it ;^ or when fraud is chiimed, or any breach of 
 warranty in an action upon an insurance policy, upon the 
 ground that the building was used for purposes more haz- 
 ardous than those in tlie class in which it was rated, proof is 
 admissible to show that the insurers knew the structure and 
 the uses to which it was devoted ;* or when only a part of 
 the agreement has been reduced to writing and it rests partly 
 in parol ;^ so any distinct valid parol contract between the 
 parties, made at the same time and not reduced to writing, 
 which is not in conflict with the terms of the Avritten con- 
 tract, and which operated as an inducement to either of the 
 parties to enter into the original agreement f but this must 
 not be understood as authorizing the proof of any pai'ol 
 agreement so made, to in any wise vary, enlarge or control 
 the terms or provisions of the written contract.' 
 
 The application, force and extent of this exception to the 
 rule is well illustrated by a case decided in the Supreme 
 Court of Pennsylvania® under the following state of facts : 
 
 Stoops 1). Smith, 100 id. 63 ; Sweet 44 ; Basshor v. Forbes, 36 Md. 155 ; 
 
 -y. Shumway, 102 id. 365. "Weaver v. Fulsher, 27 Ark. 510 ; 
 
 * Collins -y. Gilson, 29 Iowa, 61; Smith u. Dallas, 35 Ind. 255. 
 Kimball v. Myers, 21 Mich. 276 ; « shugart -y. Moore, 1 Weekly 
 Hutchins v. Hubbard, 34 N. Y. 24. Notes of Cases, 598, 599. Shars- 
 
 * Lancey v. Phenix, &c., Ins. Co., wood, ^., said: "The cases of Waav- 
 56 Me. 562 ; Washington Ins. Co. v. er t). Wood, 9 Penn. St. 220, and 
 St. Mary's Seminary, 52 Mo. 480. Powelton Coal Co. v. McShain, 74 
 
 ^ Robertson d. Evans, 3 S. C. Penn. St. 238, are full to the point 
 
 330 ; Butler v. Smith, 35 Miss. 457. that the evidence should have been 
 
 *■ Mayor, &c., of N. Y. v. Ex- admitted. These cases settle, be- 
 
 chang-e Ins. Co., 3 Abb. App. (N.Y.) yond all question, that when a 
 
 261. , promise is made by one party, in 
 
 ' Webster v. Hodgkins, 25 N. H. considei-ation of the execution of a 
 
 128 ; Barker v. Bradley, 42 N. Y. written instrument by the other, it 
 
 316 ; Winn v. Chamberlain, 32 Vt. may be shown by parol evidence." 
 
 318 ; Crane v. Elizabeth, &c.. The same doctrine was applied in 
 
 Assoc, 29 N. J. 302. the case of Lindley v. Lacey, 17 C. 
 
 * Bonney V. Merrill, 57 Me. 368. B. (N. S.) 578. In that case it was 
 ■' Vandercar v. Thompson, 19 held that where, in negotiating the 
 
 Mich. 82 ; Proctor v. Gilson, 49 N. sale of the good will and fixtures of 
 H. 62 ; Buzzell v. Willard, 44 Vt. a business, the pui-chaser promised
 
 440 
 
 EVIDENCE. 
 
 [cilAr. XIV. 
 
 Tlio plaintifl' went into possession of defendant's fiirni nnder 
 :i written lea.se, l)y the terms of wliicii he was to cultivate 
 
 thiit, in consideration of the vendor's 
 8ijr"iiig the agreement, he would 
 nettle a suit of a third i)arty jKnid- 
 ing' against the vendor, that jiarol 
 evidence of such agreement was 
 admissible, even though the written 
 agreement authorized the purchaser 
 to settle the suit out of the purchase- 
 inoney. In Baker v. Mich. Cent. R. 
 R. Co.. 42 111. 78, the plaintiff 
 shipped eighty tierces of hams over 
 the defendants' road, in reference to 
 the shipment and transportation of 
 which he made an oral agreement 
 with the defendants, through their 
 agent, that the freight should not be 
 subject to the restrictions upon the 
 carriei-s' liability applied to less 
 perishalile goods. The bill of lading 
 contained this restriction, but the 
 court held that the agi-eement be- 
 tween the parties might lie shown 
 by parol evidence in rebuttal of the 
 ])ill of lading in that respect. In 
 Silliman v. Tuttle, 45 Barb. (N. Y.) 
 171, the plaintiffs bought of the de- 
 fendants a canal boat. The jirice 
 was agreed upon, and a bill of sale 
 executed and delivered. The boat 
 was then on a trip transporting 
 merchandise, aud it was agreed, by 
 parol evidence, between the parties, 
 at the time of the sale, that the 
 plaintiffs should have the avails of 
 the trip, upon payment of the ex- 
 jienses thereof. The bill of sale 
 was silent ui)on this matter, and the 
 title and right of possession passed 
 on delivery of the bill. It was held 
 Ijy the court that this was an inde- 
 pendent contract, relating to the 
 earnings of the boat, and not to the 
 boat it.self, and having no necessary 
 connection with its sale, and that 
 parol evidence was admissible to 
 estatilish it, and that its estat)lish- 
 ment did not, in any wi.se, interfere 
 
 with, alter, vary or control the bill 
 of sale. 
 
 So evidence is admissil^le when it 
 only tends to estaVdish a contract 
 supplemental to the written con- 
 tract. Thus, in Malpas v. London, 
 &c., R. R. Co., L. R., 1 C. P. 336, 
 the plaintiff made arrangements 
 orally with the defendants to con- 
 vey cattle for him to E. on their 
 railway, and thence to K. on a con- 
 necting line, and at the same time, 
 without noticing its contents, signed 
 a consignment note by which the 
 cattle were directed to be shipped 
 to E. It was held that evidence 
 was admissible to prove the parol 
 agreement to transport the cattle 
 from E. to K., as such agreement 
 did not contlict with the consign- 
 ment note, but was merely supple- 
 mental thereto. That collateral 
 parol agreements relating to the 
 subject-matter of the contract, but 
 entirely independent of the contract 
 itself, and not intended to qualify 
 or control it, may be given in evi- 
 dence, and may be made the ground 
 of an action, or, in a proper case, 
 set up as a defense to the instru- 
 ment itself, is established by nu- 
 merous authoi-ities. Buzzell v. Wil- 
 lard, 44 Vt. 44 ; Morrill v. "Water- 
 son, 7 Kan. 199; Wesbrook v. 
 Jeffei-s, 33 Tex. 86. But the con- 
 tract must be an independent one, 
 and such as could properly be made 
 by parol, and as is not repugnant to 
 the provisions of the written agree- 
 ment ; that is to say, it must not be 
 such a contract as in any wise qual- 
 ities, limits or controls the written 
 instrument itself, or its effect, appli- 
 cation or construction. Thus it has 
 been held incompetent to introduce 
 evidence of a parol agreement, that 
 the deed of a certain piece of land
 
 SEC. 151.] RES GESTAE. 441 
 
 the farm upon shares. There was no barn upon the prem- 
 ises suitable to store the crops in, and there was no provision 
 in the lease in reference to the buikling of a new one ; but 
 the plaintiff offered to prove upon the trial, that before the 
 first of April, 1869, the defendant proposed that if he (the 
 plaintiff) would lease and move on to his (the defendant's) 
 farm for a 3'ear, as a crojjj^er, he (the defendant) would build 
 a barn thereon by harvest time ; that when the defendant 
 brought the agreement to him to sign, he at first refused to 
 sign it, because it did not mention that the defendant was to 
 buikl the barn ; that the defendant then said that tliat was 
 not necessary, as he was a man of his word and would do as 
 he had agreed, whereupon the plaintiff' signed the agreement 
 and entered into the possession of the farm ; but the defend- 
 ant neglected and refused to l)uild the barn. Upon the trial 
 of the case in the lower court the judge refused to admit the 
 evidence of the foregoing facts, but the Supreme Court held 
 that the evidence was admissible. 
 
 On a question whether a deputy sheriff acted negligently 
 or unfaithfully in not making an arrest of one S., evidence 
 was received that he inquired at S.'s place of residence, 
 called at his slio[), inquired of a man and boy, who told him 
 S. was at his house, Avhere he went and hiquircd for him of 
 a woman whom he learned was S.'s wife, mentioning to her 
 his business. She told him that her husband was then at 
 work at the shop. The evidence of these answers was ob- 
 jected to as hearsa}% and excluded ; but a new trial was 
 granted. The court said it was a material j^oint whether 
 the officer made due search and inquiry. It was his duty to 
 inquire at all proper places, and searck wherever it was 
 probable S. would be found. To show this, it was neces- 
 sary he should state the inquiries and the answers made, 
 and that he had made search accordingly. Such answers 
 are part of the transaction. They are facts, and do not 
 
 should pass the manure then on the construction ; because the question 
 premises, because such an agree- as to whether the manure passed, by 
 ment Would qualify or extend the the deed is purely one of law, de- 
 provisions of the instrument, and pending- upon a variety of questions. 
 add to its effect, and control its legal Proctor v. Gibson, 49 N. H. 62.
 
 442 EVIDENCE. [CIIAP. XIV. 
 
 stand on the footing of hearsay evidence.' The defendant, 
 as dt'puty sheiiir, si'ized a lot of wool and other property, 
 luulcr an exeontion against S., its his property. The phiin- 
 titf had drli\ (-red wool to S. lo he manufactured ; and heforc 
 the seizure, on intpiiriiig of S. at his factory as to his prog- 
 ress, S. showed the plaintill" the wool, yarn and bocUing, 
 which he said were the plaintiff's, who then examined them. 
 S. afterwards absconded, and the goods were seized. These 
 declarations of S. were ofiered in evidence, and held admis- 
 sible, the court saying : " As a mere declaration, this is not 
 evidence ; for though S. is out of the country, his sayings 
 should be rejected as hearsay. It is a difficult case of the 
 res f/eskc. The property Avas in possession of S., and diffi- 
 cult to be distinguished from other property of the same 
 kind also in his possession. If the saying had been without 
 the i)avtics being engaged in any act, it would have been 
 mere hearsay. Did here loas an act. It was like labeling 
 the goods with the owner's name. Showing the property 
 to the plaintiff as his wool, on his going and inquiring, in 
 dillerent stages of process, was an act or transaction, and is 
 like an actual separation from the common mass.^ So, al- 
 thouo-h, on the trial of an indictment for manslaughter, 
 malice cannot l)e shown on the part of the prosecution, yet 
 declarations made by the prisoner, at the commencement of, 
 and during the fatal affray, as avcU as immediately before 
 and after it, must be received as constituting a part of the 
 res yeske ; and this although they may incidentally tend to 
 show malice.^ In this case, the parties being shown together 
 quarreling immediately before the fatal blow, a witness was 
 allowed to state that, in the course of the quarrel, the pris- 
 oner threatened that he would kill the deceased before he 
 went asleep. Indeed, malice may l)e quite material ; for 
 should plain murder be made out, the court might, in its 
 discretion, discharge the jury, and order a higher indictment 
 to be prefeiTcd. In an action for a libel, what a third per- 
 son told the defendant as to its truth before the defendant 
 
 ' Phelps V. Foc.t, 1 Conn. 387 ; =* Pool v. Bridges, 4 Pick. (Mass.) 
 Ponsonby v. Debaillon rf a/., 6 Mart. 378. 
 (La.^ Rop. 238. ' State v. Powell, 7 N. J. L. 244.
 
 SEC. 151.] RES GEST^. 443 
 
 published the libel, was offered in proof to mitigate damages, 
 and was held receivable.' In a settlement cause, on a ques- 
 tion whether C, the grandfather, had made a gift of a slave 
 to his granddaughter, it was proved by the defendants that 
 he requested her to be Ijrought up so as to be useful to his 
 <;randdau«hter when married, to whom he intended to jrive 
 her, and that F., who married the granddaughter, came and 
 took the slave, saying that she had been given to his wife by 
 her grandfather. And this evidence was held admissible as 
 part of the res gestcjR. The court said the change of posses- 
 sion was established. The declarations of the parties went 
 to show the intent with which the change was made. On 
 scire facias^ to enforce a recognizance against a house on 
 which, with other real estate, it had been charged by K., the 
 cognizor, the defendant, claiming under K., sought to raise 
 an inference of payment from the fact of tlie cestui que trust 
 of the plaintiff having released some of the land charged, 
 and especially a tract sold by K. to Fisher. In reply to 
 this, the plaintiff offered K.'s letter in evidence, requesting 
 such release, on the ground that there was other property 
 out of which satisfaction could be obtained. This was olj- 
 jected to as res inter alios acta, but it was held admissible, 
 as completely repelling the inference of payment, so far as 
 it was derivable from the circumstances of the release.^ In 
 an action against a surety on a bond for money, he insisted 
 that he was discharged by the plaintiff" 's laches. The plain- 
 tiff, to show that the surety was indemnified, offered to prove 
 that his principal had delivered a note to a witness, telling 
 him it ivasfor his surety, and that it was to secure him ; and 
 that the note was delivered to the surety, who collected it. 
 The declarations of the principal were holden admissible in 
 evidence as part of the res gestce.^ Upon a trial for larceny, 
 it appeared that the prosecutor, on his return from search, 
 declared himself satisfied of the prisoner's innocence, having 
 found his watch in his waistcoat pocket ; and directed the 
 
 * Coleman v. South wick, 9 John. * Reig-art v. Ellmaker, 10 S. & R. 
 
 (N. Y.) 45 ; Kennedy v. Gregory, 1 27. 
 
 Binn. (Penn.) 85; Morrison v ' Deardorf u Hildebrand,2 Rawle 
 
 Duane, 1 id. 90. (Penn.), 226.
 
 441 EVIDENCE. [cilAr. XIV. 
 
 driver to turn about. The i)ro.>evutor being iib.>ent, his dec- 
 larations Avere received tor the prisoner as a part of the res 
 yt'skv} In an action for l)reacli of a marriage promise, the 
 defendant may show by a third person, in order to mitigate 
 damages, that his father declared to him his dislilce of the 
 match, on account of the phiintiif's bad character. It ap- 
 peared that the fatlier was an incompetent witness, liaving 
 employed the defendant's attorney.-^ In a writ of entry 
 a»'-ain&t a grantee of S., which grantee had notice of a prior 
 deed from 8., under which the defendant claimed, it was 
 alleged that S. had fraudulently obtained and suppres.sed the 
 first deed ; and to show this, it was in proof that he ol)tained 
 access to the desk of the lirst grantee under pretense of 
 searching for other papers. It was held that his declarations, 
 while at the desk, going to identify the deed as one of the 
 papers which he took away, and to show its contents, were 
 admissible in evidence as part of the res geslCB against the 
 tenant.'' 
 
 There are certain facts which can only be proved by the 
 acts or declarations of a part}^ as that he could write, or 
 read, or knew the multiplication table, etc."* 
 
 Sec. 152. Declarations as to Possession of Lands, Etc. 
 
 It is not necessary, in order to warrant such evidence, that 
 the act done with which the declaration is connected, should 
 be a single effort or a positive transaction in the common sense 
 of the term. It may he continuous for a series of years, and 
 of a passive or iieyative character. Thus possession of real 
 estate for a long time may be qualified and explained by the 
 declaration of the possessor, the apparent owner in fee being 
 thus cut down to the mere squatter, or the apparent squatter 
 elevated to the owner in fee, as is done every day in our 
 courts.^ So also the apparent general owner of personal 
 property may be turned into a l)ailee or trespasser, and e 
 converso. And see the subsequent notes. Long forbearance 
 
 • Kelly's Case, 3 C. H. Rec. 153. * Darby v. Rice, 2 N. & McCord 
 
 » Irvint' V. Greenwood, 1 C. & P. (S. C), 596. 
 
 350. " Human v. Pettett, 5 B. & Aid. 
 
 » Davis V. Spooner, 3 Pick. ' Mass. ) 223. 
 284.
 
 SEC. 152.] RES GEST^. 445 
 
 may, in like manner, be shown to signify absolute title, or 
 temporary tenancy in another, and an apparent legal resi- 
 dent or citizen reduced to the temporary sojourner. And it 
 makes no difference whether the declarant is aUve, and a com- 
 petent attainable witness, or is dead. The declaration is 
 identical with the act, and may be proved in the same nuinner 
 as might the hand and seal of the declarant, either by him- 
 self, or any person who saw him sign and seal. 
 
 In case of declarations brought forward to qualify either 
 temporary or continuous acts of possession, we are first to be 
 satisfied, prima facie ^ at least, that there is a possession. 
 This may appear by actual occupancy, inclosures, partial 
 occupancy under a deed or contract, Avhicli carries out a con- 
 structive possession commensurate Avith its terms of local 
 description, acts of ownership, etc., and an act, which would 
 be deemed a very slight indication of possession and con- 
 sequent ownership, especially in the unsettled parts of this 
 country, will let in proof of declarations. Thus, the lessor of 
 the plaintiff, to show seizin of a wood lot in his ancestor, pro- 
 posed to prove that one Brown cut timber there by the 
 ancestor's permission. Having proved, simply, that Brown 
 was seen in the wood cutting timber, he then proposed to ask 
 what Brown had said as to who was the owner of the wood. 
 The defendant objected to this evidence, but it was admitted, 
 Parke, J., saying : " He exercised an act of ownership, and 
 he is, therefore, prima facie owner. And what he says as to 
 any one else being the owner, is a declaration to cut down 
 his own title." And upon it being objected that he was a 
 mere workman, Parke, J., said : " I do not know that he 
 was only a workman, except from what he may have said." 
 And upon the inquiry being made whether he would only 
 hear what he said at the time, Parke, J., said : " Yes, what 
 he said at any time." The latter must have been on the 
 ground, that the act of cutting wood being prima facie evi- 
 dence of a continuing ownership and possession, both before 
 and after the act, would thus constructively extend each way, 
 and connect itself as a possession with any declaration made 
 before or after> 
 
 ' Stansbury v. Arkwright, 5 C. & P. 575 ; Gage v. Smith, 27 Conn. 70.
 
 446 EVIDENCE. [CIIAP. XIV. 
 
 This case goes to the utmost latitude of constiiictivc pos- 
 session, us the fouiulation for letting in proof of the occupant s 
 declarations. And in allowing the tenant to- connect him- 
 self in this way with the party as owner, by setting up a 
 ct)ntract, it goes farther than some of the American courts 
 have been willing to go. Thus, in a case where the defendants, 
 as heirs of one Price, claimed to extend their ancestor's ad- 
 verse possession over the lines of his grant into lands granted 
 to one Greeiuip previous to 1804, which lands Greenup con- 
 veyed to the lessor of the plaintiff in 1815, to make out the 
 defense, it was proved, among other things, that in February 
 or March, 1804, Price demised the land contained in his 
 grant to one llaydon, who entered, claiming nnder one Price ; 
 and a witness was allowed to state, that al)out the time Hay- 
 don entered, he told the witness that he was to clear ten acres 
 of land for rent, according to the contract with Price ; and 
 some time afterwards, Haydon showed the witness, clemarked 
 by blazes on the trees, the ten acres which he stated he was 
 to clear, which ran across the division line between the parties, 
 as pointed out by their grants, and comprehended land lying 
 within Greenup's boundaries. Haj^don cleared a turnip patch 
 lying within the ten acres in the season of 1804, and got 
 firewood there. A part of the turnip patch extended across 
 the line, and in the winter following, the patch was enlarged 
 by a farther clearing, making in the Avhole two acres cleared 
 within the plaintiff's boundaries, which had been fenced and 
 cnltivated by Price and his heirs ever since. The demar- 
 kation of trees extended still farther within the plaintiff's 
 boundaries. The testimony as to Hay don's declarations 
 having ])een objected to, but admitted, now came, on excep- 
 tion taken, before the Court of Appeals on a writ of error. 
 Underwood, J., delivering the opinion, remarked that "to 
 legitimate the statements made by Haydon to the witness, 
 and to rid them of the character of mere hearsay, 
 they must be considered as part of the res gestae ; and if 
 they cannot be so considered, they ought to have been 
 rejected. Conversations or declarations, made by the actor 
 or ])arty concerned, at the time an act is 'done, and which 
 explain the quo ammo and design of the performance,
 
 SEC. 152.] ■ RES GESTAE. 447 
 
 may, whenever the nature of the act is called in question, 
 be given in evidence as part of the res gestm. Without tol- 
 erating this explanation of the acts of men, by receiving 
 their accompanying declarations, we should be often misled 
 as to their true nature and character, and consequently liable 
 to fall into errors in respect to them. The rule requiring 
 res gestae declarations to be received as evidence, is a neces- 
 sary and very useful one ; but, in the present case, we 
 think it will not sanction the reception of the testimony ob- 
 jected to. Haydon, as an occupant or tenant of the land; 
 might, during his actual occupancy, make declarations which 
 ouffht to l)e received whenever offered in evidence, to show 
 the nature and character of his tenancy, whether as claimant 
 in his own right or right of another, whether as tenant of 
 the freehold or for years, whether adversely to a particular 
 claim or not, etc. In cases like these, the occupancy or ten- 
 ancy is the act ; the declarations to explain its nature and 
 extent, made by the tenant while in possession, are the res 
 gestae,. Haydon's declarations, while occupying the land, 
 were very proper to show that he held under Price, and that 
 his possession was as tenant under Price ; l)ut Haydon's 
 statements were not confined to this. They have been un- 
 warrantably extended. His mere declaration to the witness 
 was received as evidence of what the contract was between 
 him and Price. By showing the blazes on the trees to the 
 witness, and by declaring that they included the ten acres 
 he, Haydon, was to clear, his statement without oath estab- 
 lished a contract between him and Price in relation to these 
 identical ten acres ; and thereby Price, by his tenant, Hay- 
 don, is made the adverse possessor, by construction, of 
 another's laud, to the extent of the blazed demarkation. 
 The contract between Hajalon and Price is one thing, the 
 occupancy of the land by Haydon is another ; and the dec- 
 larations of Haydon in relation to the nature of his posses- 
 sion, as res gestae^ is still another. It was as improper to 
 admit proof of the first under the idea of res gestae, by 
 receiving as evidence what Haydon had been heard to say, 
 as it would have been to have received the hearsay of Hay- 
 don to prove that Greenup, in 1804, had actually conveyed
 
 448 EVIDENCE. ■ [chap. XIV. 
 
 the land in controversy to Price." He then goes on to show 
 th:it, however phun a tcnant'.s i)o.sse.s.sion ni:iy l>e, it docs not 
 foUow that he can, by his declarations, connect himself with 
 another in a distinct and independent contract, as, in tliis 
 case, the contract for clearing the' l.uid ; and that the eiFect 
 iiuist be merely to qnalify the possession in respect to him- 
 self. He wonld not allow that Price conld come in and 
 adopt the adverse possession for himself which Haydon luid 
 ji^snnu'd for him, as it seems to have l)een intimated Stans- 
 bnry might have done, in the above English case.' Under 
 this <'-eneral doctrine it has been held that the declarations 
 made by the warrantor in a deed, while in possession, going 
 to show in what character and with what intent he entered 
 and continned his possession, are adinissible in favor of the 
 title derived irom him.^ And on a question of settlement, 
 one party having given in evidence long adverse possession 
 of land by the father of the paupers, to make out that- he 
 had a settlement as a freeholder, it was held that the other 
 party might show the father's declarations that he held 
 merely under a contract for a deed, and had no title.^ 
 
 In this class of cases, it has been made a question whether, 
 sSier a jjrima facie right has been established by proof of 
 an apparent adverse possession for a sufficient length of time 
 to confer the title, evidence of the possessor's declarations 
 <roiu<r to cut dowu such title, were not inadmissible as com- 
 ino- within the Statute of Frauds. Thus, in trespass, quare 
 clausum f regit, it appeared that the parties owned adjoining 
 lots, and the defendant gave evidence of a possession for 
 thirty years, according to a crooked fence between them. 
 The plaintiff straightened the fence, but the defendant tore 
 the straight fence down. The plaintift' offered to prove acts 
 and declarations of the defendant since the expiration of the 
 thirty years, showing that the old fence was built for mutual 
 accommodation, without any view to title, and that the occu- 
 pation was not adverse. The court said : " It is urged that a 
 
 ' West V. Price. 2 .1 .T. Mar. (Kv.) ^ Youners v. Vredenburgh, 1 John. 
 3S0; Pi<;kett V. Pickett, 3 Dev. (N. (N. Y.) 1.^8. 
 
 (J) 6, 5 West Cambridge V. Lexington, 
 
 2 Pick. (Mass.) 536.
 
 SEC. 152.] RES GEST^. 449 
 
 complete possessory title was obtained up to the line of the old 
 fence, and that all evidence of acts or declarations, which took 
 place afterward, are irrelevant and inadmissible to prove the 
 character of the previous possession. If the premises 
 are well founded, the argument is sound, and the conclusion 
 loo-ical. But the very question was as to the nature and 
 character of that antecedent possession ; and the acts and 
 declarations of the parties owning the estates, made after 
 thirty years, which had a tendency to show their motives 
 and views during the thirty years, were proper to show the 
 nature of the occupancy, and rebut the inference which 
 would otherwise follow from the act of possession. Surely, 
 if a w^ritten agreement had been produced, showing that the 
 defendant was allowed to maintain a crooked fence until the 
 plaintiff should choose to have one back upon the true divis- 
 ional line, it would defeat all claim to the land in dispute on 
 account of the thirty years' possession. Confessions of the 
 party in possession, claiming under that title, his acts and 
 declarations having a tendency to show such arrangement 
 and understanding, are equally competent evidence." • In a 
 similar case, in the State of New York, where the possession 
 exceeded twenty-five years, and appeared to have been ad- 
 verse, the mere declarations of the defendant that the line 
 should have been a straight one, without any express ad- 
 mission showing that his possession had not been adverse, 
 was held not admissible, or rather, not suflScient to entitle 
 the plaintiff to the straight fence which they had built 
 between the two extremities where the defendant said the 
 fence should have run.^ 
 
 The afcneral doctrine that the declarations of a tenant in 
 possession of land are admissil)le as part of the resgestcB, for 
 the purposes explained supra, has seldom been denied. A 
 few cases have, aj^parently through inadvertence, gone the 
 other way ; but they have generally been afterwards given 
 up by the very courts in which they were decided. In one 
 case, the defendant in ejectment, claiming that certain ten- 
 ants in possession held under him, offered to show their ac- 
 
 ' Church V. Burghardt, 8 Pick. ^ Stuyvesant v. Tompkins, 9. John. 
 (Mass.) 327. (N. Y.) 61. 
 
 29
 
 450 EVIDENCE. [chap. XIV. 
 
 kiiowli'dgmeiits to that cfl'ect, which was denied as hearsay, 
 willioiil :ipi)aicutly adverting to the question whether these 
 acknowledgments might not be considered a part of the 
 res geslce.^ That they miglit, was afterwards conceded by the 
 same court in another case, where the usual distinction 
 between being in and out of possession is taken.'^ 
 
 It is well settled, however, that the tenant's declarations 
 e;ui in no ciise be received to shake a clear documental title 
 derived to himself from the owner,^ or if ])y parol, to show 
 title in another which could only arise documentally. Either 
 would be a plain violation of the Statute of Frauds.'* 
 
 It is hardly necessary to observe that hearsay making a 
 part of the res gestae, as well as all other declarations, iiu 
 order to their l^eing competent, must not only relate to such 
 facts as are susceptible of oral proof, hut must also, like 
 other evidence, be relevant to the matter in hand, must bear 
 upon the point of inquiry, and cmne under subordination to 
 other general rules ivhich govern in the admission of testimony. 
 All questions of evidence must be considered in reference to 
 the particular circumstances under which it is offered.^ So 
 also, under similar qualifications, the declarations of persons 
 accompanying their acts of forbearance to take possession, 
 may be given in evidence. The plaintiff claimed a right to 
 the exclusive felling and converting of trees in a certain belt 
 of wood surrounded l)y tenants, he founding the right on 
 long usage, and sought from this to have a grant or reser- 
 vation presumed by the jury ; and he was allowed to give in 
 evidence the declarations that such was his right, made by the 
 surrounding tenants. It was objected that this was hearsay, 
 but answered that it was a part of the res gestoa ; for it was 
 acc()mi)anicd with forlwarance by the various tenants who 
 made the declarations, and their landlords, to exercise their 
 right themselves, and leaving the whole to the plaintiff.^ In 
 a writ of entry the demandant claimed the premises as part 
 of a mill privilege granted to Ham ; and to show that it wiis 
 
 • Calvett V. Fitzgerald, Litt. Sel. * Burr n. Sherman, 6 John. (N. 
 Cas. (Ky.) 388. Y.) 19. 
 
 » May tj. Jones, 4 Litt. (Ky.) 21. * Human v. Pettett, ante. 
 
 * Reading v. "Weston, 7 Conn. 143. " Stanley v. White, 14 East, 332.
 
 SEC. 152.] RES GESTAE. 451 
 
 within the grant, proved grants from Ham to several persons, 
 of land which they took possession of as the mill privilege, 
 and built a mill. The defendant claimed that the premises 
 in question did not come within the grant to Ham, and was 
 allowed to prove that when the mill built by the grantees of 
 Ham was to be rebuilt, some of the grantees refused to join 
 in the rebuilding, saying it stood on Allen's land, under 
 whom the defendant now claimed. The court say their 
 declarations were admissible as a part of the res gestae. The 
 mere act of abandoning was equivocal as to the motive. The 
 declarations removed the doubt, and were admissible to 
 qualify the act, and in that sense made a part of it.^ 
 
 The declaration of a tenant in possession is constantly 
 received as to whom he held under ; not as evidence of title, 
 but as evidence of possession, and the character of the pos- 
 session.- 
 
 On a question of settlement it became material to ascer- 
 tain whether the pauper was domiciled in the town of Canton. 
 He resided there with H. about seven years, being off on 
 excursions and journeys about one-third of the time. He 
 beinsT dead, his declarations of an intention to remove, on 
 going out upon excursions and journeys, were received in 
 evidence as part of the res gestae.^ The party's own decla- 
 rations, to show him a sojourner, were received after sixteen 
 years' residence. And, on a question whether one was a 
 citizen of England or the United States, the court allowed 
 his declaration that, in going to England, his object was to 
 claim compensation as a loyalist."* 
 
 The state of feeling, of sentiment or sanity, may, and 
 must in general be indicated by the declarations of the indi- 
 vidual in respect to whom these things are predicated. And 
 where it was sworn by a witness that a testator made confi- 
 dential communications to him, the testator's declarations, 
 by which he showed suspicion of the witness's honesty, were 
 
 ' Down V. Lyman, 3 N. H. 486. And see Highlander v. Fluke, 5 id. 
 
 "" Babb V. Clemson, 10 S. & R. 442. 
 (Penn.) 419 ; Willies v. Farley, 3 C. = Gorham v. Canton, 5 Me. 266. 
 & P. 395 ; Guidry v. Grivot, 2 Mart. * Stansbury v. Arkwright, 5 C. 
 
 (La.) 13 ; Martin v. Reeves, 3 id. 22. & P. 575.
 
 452 EVIDENCE. [('IIAI'. XIV. 
 
 lulinittcd ill iv\)\y. "These," says Til(;iimax, C. J., " were 
 acts, not merely luarsay. They showed a want of eontidence, 
 and the iniprohaljility that family eoiieeins of a delicate 
 nature would have been committed to the witness." ^ In a 
 case where the defense was, that the master of a ship was in- 
 line, on trial of i\n indictment for confining him at sea, a 
 journal kopt by the master was received in evidence for the 
 prosecution, to show, l)y the manner of its being kept, that 
 he was not insane ; but it was held not evidence for any 
 other purpose.^ But such acts or declarations, even to show 
 iiis:uiity, in a criminal defense, must be slricihj part of the 
 res gestae. In a case of homicide, by stabbing, the counsel 
 ofl'ercd in evidence the prisoner's declarations, in connection 
 with his conduct, the morning after the homicide, from which 
 to infer his insanity ; but it was not held admissible.^ Where 
 a prisoner, on trial for nmrder, produced evidence of declara- 
 tions by the deceased that he w^ould destroy himself, with a 
 view to raise the presumption that the deceased came to his 
 death liy suicide, it was held competent for the State to give 
 evidence of the reasons assigned by the deceased for his 
 declarations.^ 
 
 Sec. 153. Spontaneity of the Acts or Declarations Essential; What is. 
 
 As has previously been stated, to make acts or declara- 
 tions a part of the res gestae, they must be contemporaneous 
 with the main fact, but in order to be contemporaneous 
 they are not required to be joremeZy concurrent in point of 
 time. If the declarations spring out of the transaction — if 
 they elucidate it — if they are voluntary and spontaneous, 
 and (f they are made at a time so near to it, as reasonahh/ to 
 preclude the idea of deliherate design, they are then to be 
 regarded as contemporaneous. The reason for this rule is 
 apparent. That which properly is admissible as a part of 
 the res gestae is admissible foi- as well as against the party 
 
 • Lightner v. Wike, 4 S. & R. ' State v. Scott, 1 Hawks (N. C), 
 (Penn.) 203. 24. 
 
 « United States v. Shani, 1 Peters * State v. Crane, 2 Bail. (S. C.) 66. 
 (U. 8. C. C: 118 ; Darby v. Rice, 
 ante.
 
 SEC. 153.] RES GESTAE. 453 
 
 makiiiir the declaration or doino; the acts claimed to form a 
 part of the transaction, and nothing can properly be permit- 
 ted, which is not so intimately blended with the transaction 
 itself as to wholly preclude the idea that the party was seek- 
 iusT to make evidence for himself* 
 
 In reference to acts or declarations forming a part of the 
 res gestae, it must be remembered that they are admissible 
 for as well as against a party ; hence it is that courts have 
 exercised extreme caution not to admit such acts or declara- 
 tions as arise so long after the transaction to which they 
 relate, that an opportunity is given for deliberate design in 
 manufacturing evidence ; and the fact that the declaration is 
 against the interest of the person making it has no bearing 
 in determining the question. If they are fairly detached 
 from the original transaction so as not to be the spontaneous 
 product of it, they are no part of the res gestae. 
 
 It is not possible to give a general rule applicable to all 
 cases. The question of the admissibility of such evidence 
 must necessarily depend upon the peculiar facts and circum- 
 stances of each case, and rests largely in the discretion of 
 the court. Indeed, there is no one branch of the law of evi- 
 dence that calls for the exercise of a keener discretion, or 
 more sound judg^ient, than this. To group the declarations, 
 acts and circumstances attendant upon the principal trans- 
 action and determine whether they are natural or artificial, 
 mala fide or bona fide, is a matter calling into exercise the 
 best faculties of a judicial mind. Instances can be given 
 showino; when such evidence has been received, and when it 
 has been rejected ; but they furnish no test for another case. 
 Yet the rea? test generally applicable is simply whether the 
 evidence sought to be admitted is of acts, declarations or 
 circumstances so immediately comiected with the fact in 
 issue as to be a part of it, and whether they are so far the 
 natural, voluntary, and spontaneous result of it, and are so 
 intimately connected with it in point of time, that they may 
 be said to spring from it, and explain the real nature, char- 
 acter or extent of the transaction itself. It is not essential 
 that they should have occurred at the iwecise time of the 
 
 "■ Mitchum v. State, 11 Ga. 278 ; State v. Garrund, 5 Oreg. 216.
 
 454 evidp:nce. [chap. xiv. 
 
 ti-aiisaction itself, but thoy imist have occurred at such a time, 
 and iusuch a manner, and must be so closely allied thereto, 
 iis really to form a part of it.> The rule undoubtedly is, 
 that to constitute declarations a part of the res gestce, they 
 must be made at the time when the act was done to which 
 they relate and which they are considered as characterizing, 
 and must so liarnionize as to be obviously a part of the 
 transaction.^ Nor must they be narratives of past occur- 
 rences, but concomitant with the principal act, and so con- 
 nected with it as to be regarded as the riesult and conse- 
 quence, or as a part of the act itself, and presumed to have 
 been induced by the motive which led to its commission.' 
 As was said in the last case cited, they must be contempora- 
 neous with the main fact to which they relate. In fact they 
 must directly relate to the transaction, or be proved as so 
 intimately connected with it and near to it in point of time, 
 that it is manifest that they emanate from and constitute a 
 component part of the same. In other words, the relation 
 between the principal fact, and the declarations or acts sought 
 to be established as a part of the res geslce, that it may be 
 said that the declarations or acts are the declarations and 
 acts of the transaction itself.'* Declarations of this charac- 
 ter are treated as so nearly akin to the principal act itself 
 and so essentially a part of it, that the character of the per- 
 son making them cannot be inquired into. Thus, where A. 
 and B. were jointly indicted for stealing a hog, upon a 
 
 ' Meek v. Perry, 36 Miss. 190 ; had been paid in settlement or not. 
 
 Fifield V. Richardson, 34 Vt. 410 ; Reviere v. Powell, 61 Ga. 30. Gen- 
 
 Tompkins v. Reynolds, 17 Ala. 109 ; erally declarations offered merely to 
 
 Keai-ney v. Farrell, 28 Conn. 317 ; strengthen proof of the existence of 
 
 Rutland v. Hathorn, 36 Ga. 380 ; a fact are not admissible as a part 
 
 Riggsv. State, 6 Cald. (Tenn.) 517. of the res gestCB. Corder v. Talbot, 
 
 An entry made by a banker or 14 W. Va. 277. 
 
 merchant in his account book, at * Moore v. Meacham, 10 N. Y. 
 
 the time of the transaction, and in 210 ; Enos v. Tuttle, 3 Conn. 250 ; 
 
 the presence of all the parties, is Rockwell v. Taylor, 41 id. 56. 
 
 part of the res gestoe ; and the book ^ People v. Davis, 56 N. Y. 95 ; 
 
 is admissible in evidence to show it, Luby v. H. R. R. Co., 17 id. 131; 
 
 and to corroborate the memory of Ins. Co. v. Mosley, 8 Wall. (U. S.) 
 
 witnesses. So held, in an action on 405. 
 
 a check where the issue was whether * Miller, J., in Greenfield V. Peo- 
 
 the money called for by the checks pie, 85 N. Y. 75.
 
 RES GEST^. 
 
 455 
 
 SEC. 153.] 
 
 severiiuce A. was convicted. Upon B.'s trial, he offered to 
 prove, by a competent witness, that A., in the presence of the 
 witness, asked B. to go with A. and get his hog, the infer- 
 ence being that B. supposed the hog to belong to A. The 
 testimony was rejected on the ground that, A. having been 
 convicted of an infamous crime, his statements were inad- 
 missible. It ^vas held that the evidence was of the res gestm 
 and was competent, and that jVs infamy had nothing to do 
 with it} Nor is it of any consequence that the party mak- 
 ino- them would not be a competent witness upon the trial.^ 
 Thus in a Missouri case,^ in an action brought by a 
 
 • state V. Dellwood, 33 La. An. 
 1229. 
 « 2 id. 
 
 ' Brownell v. Pacific, &c., R. R. 
 Co., 49 Mo. 239. But the doctrine 
 of this case has been seriously ques- 
 tioned, and Henry, J., in Adams v. 
 Hannibal, &c., R. R. Co., 74 Mo. 
 553, says of it, that " it has never 
 been satisfactory to the bar or 
 bench of this State ; " and in the 
 case last cited, declaration made by 
 trainmen immediately after the 
 accident, "if you had stopped the 
 train when I told you, you would 
 not have killed hiin," was held in- 
 admisisible, Henry, J., saying : " But 
 few questions of more difficulty are 
 submitted for determination, than 
 those in regard to the admissibility 
 of statements as part of the res 
 gestCB. The general principles on 
 the subject are well settled, and if 
 they had been uniformly adhered 
 to in the adjudicated cases, the con- 
 flict in the decisions would have 
 been avoided. The declarations 
 of an agent ai'e admissible as evi- 
 dence against his principal, only 
 when made while transacting the 
 business of the principal and as a 
 part of the transaction which is the 
 subject of inquiry in the suit in 
 which they are offered. They are 
 then admitted as 'verbal acts,' and 
 
 part of the res gestcB. What he may 
 have said before the transaction is 
 entered into, or after its completion, 
 as explanatory, is no more admis- 
 sible than if made by a stranger. 
 Ladd V. Couzins, 35 Mo. 516 ; Mc- 
 Dermott v. H. & St. Jo. R. R. Co., 
 73 Mo. 516 ; 39 Am. Rep. 526. Any- 
 thing in the nature of narrative is 
 to be carefully excluded. Bacon 
 V. Charlton, 7 Cush. (Mass.) 586." 
 And in Lund v. Tyngsborough, 9 id. 
 42, the same court said: "There 
 must be a main or principal fact, or 
 ti'ansaction, and only such declara- 
 tions are admissible as grow out of 
 the princii^al transaction, illustrate 
 its character, are contemporary with 
 it, and derive some degree of credit 
 from it." In Luby v. Hudson R. R. 
 R. Co., 17 N. Y. 133, the Court of 
 Appeals observes: "The declara- 
 tions of an agent or servant do not 
 in general bind the principal. "Where 
 his act will bind, his statements and 
 admissions, respecting the subject- 
 matter of those acts, will also bind 
 the principal, if made at the same 
 time and so that they constituted a 
 part of the res gestcB. To be admis- 
 sible, they must be in the nature 
 of original, and not of hearsay evi- 
 dence ; they must constitute the fact 
 to be proved, and must not be the 
 mere admission of some other fact.
 
 45G 
 
 EVIDENCE. 
 
 [chap. XIV. 
 
 widow lor damages resulting from killing her husband, it 
 w:is held that he being injured and almost indantly killed, 
 
 They miist be made not only dur- 
 ing the continuance of the agency, 
 but in regard to a transaction de- 
 pending at the very time." These 
 general principles are recognized 
 by all the cases on the subject, and 
 the conflict between them has arisen 
 in the application of the principles 
 to the facts of the i>articular case. 
 
 The observations above quoted 
 from the opinion of the New York 
 Court of Appeals were made in a 
 case strongly resembling the case 
 at bar. The defendant was sued 
 for negligently running a railroad 
 car, drawn by horses, against the 
 plaintiff, in one of the streets of the 
 city of New York. A police officer 
 was allowed to testify that lie 
 arrested the driver directly after 
 the accident, the citizens having 
 stoi)ped the car, and the driver 
 having got outside the crowd which 
 had gathered, and on being arrested 
 assigned as a reason why he did not 
 stop the car that the brakes were 
 out of order. The Court of Appeals 
 held it error to admit the testimony, 
 and observed that " the alleged 
 wrong was complete, and the driver 
 when he made the statement was 
 only endeavoring to account for 
 what he had done. He was mani- 
 festly excusing himself and throwing 
 the blame on his i>rincipal." Here 
 the servant who remarked to his 
 fellow-servant : " If you had stop- 
 ped the train when I told you, you 
 would not have killed him," was 
 only endeavoi'ing to exculpate him- 
 self and throw the blame on his 
 fellow-servant, and neither his re- 
 mark nor the reply to it by the other 
 was made in the prosecution of the 
 business of their employe)", nor did 
 they immediately precede or accom- 
 pany the act which led to the catas- 
 
 trophe, or constitute any part of 
 that act, but if admissible at all, 
 would only go to show another fact, 
 and were not of themselves facts to 
 be proved as " verbal acts." They 
 were only intended to prove another 
 fact. 
 
 The cases of Insurance Co. v. 
 Mosley, 8 Wall. (U. S.) 397 ; Comm. 
 V. McPike, 3 Cush. (Mass.) 181, and 
 Brownell v. Mo. Pac. R'y Co., 47 
 Mo. 243, relied upon by respondent's 
 counsel, were not cases in which the 
 declarations of agents were intro- 
 duced as evidence, but the declara- 
 tions offered and received were 
 made by the persons injured, or by 
 persons laboring under some dis- 
 ease, and the statements related to 
 the cause of, or to the persons who 
 had inflicted the injury, or to the 
 symptoms and suffering of the in- 
 valid. It may be observed in the case 
 of the Insurance Co. v. Mosley that 
 Mr. Justice Clifford delivered a 
 very able dissenting opinion, con- 
 curred in by Justice Nelson. The 
 case of Comm. v. McPike has by 
 more recent decisions of the Supreme 
 Court of Massachusetts been ques- 
 tioned and qualitied, if not over- 
 ruled. See cases supra. And the 
 case of Brownell ■?). Pac. R'y Co. has 
 never been satisfactory to the bar 
 or bench of this State. The case 
 of Comm. V. Hackett, 2 Allen, 137, 
 is distinguishable from IJj'ownell v. 
 Pac. R'y Co., and Comm. v. McPike, 
 ante. The facts of that case were 
 that Gillen was stabbed in the night- 
 time by one who immediately ran 
 away, and the evidence offered was 
 that Gillen at the moment he was 
 stabbed cried out: "I'm stabbed," 
 and a witness for the commonwealth 
 testified that he heard the exclama- 
 tion and at once went to Gillen and
 
 SEC. 153.] 
 
 RES GEST.E. 
 
 457 
 
 his declarations as to the manner in which the accident hap- 
 pened were proper evidence as a part of the res gestm; but 
 
 reached him within twenty seconds 
 after the exclamation, and was 
 asked: "When you got to Gillen, 
 what did he say % " His answer 
 was: "He said, 'I'm stabbed; I'm 
 gone ; Dan Hackett has stabbed 
 me.' " The Supreme Court said : 
 "If it was a narrative statement 
 wholly unconnected with any trans- 
 action or principal fact, it would be 
 clearly inadmissible. But such was 
 not its character. It was uttered 
 immediately after the alleged homi- 
 cidal act, in the hearing of a person 
 who was present when the mortal 
 stroke was given, who heard the 
 first words uttered by the deceased, 
 and who went to Mm after so brief 
 an interval of time that the declara- 
 tion or exclamation of the deceased 
 may fairly be deemed a part of the 
 same sentence as that which followed 
 instantly after the stab xoith the knife 
 was iiiflicted." That portion of the 
 opinion which we have italicized 
 indicates the precise ground upon 
 which the evidence was held ad- 
 missible. 
 
 Strictly applying the principles 
 above announced, and " it is 
 dangei'ous to open the door to the 
 declarations of agents beyond what 
 the cases have already done," was 
 the evidence offered in the case at 
 bar admissible ? "Were the declara- 
 tions connected with the calamity as 
 a cause or concomitant ? Were they 
 contemporary with the principal 
 transaction and illusti-ative of its 
 character, or merely a subsequent 
 narrative how it occurred, or an 
 explanation of how it might have 
 been avoided 1 If the latter, as we 
 think, they were wholly inadmis- 
 sible, and the court erred in permit- 
 ting the evidence to go to the jury. 
 
 It is not to be denied that some 
 
 of the authorities cited by respond- 
 ent's counsel, and others not cited, 
 sustain his position. With few ex- 
 ceptions they are not cases however 
 in which the question of agency is 
 involved, but cases in which the 
 declarations offered were those of 
 persons injured, as to the causes of, 
 or to the persons who inflicted the 
 injuries, and while there may be 
 circumstances which would warrant 
 a less rigorous application of the 
 principle, in such cases we are 
 satisfied that a strict adherence to 
 principle is the better course when 
 it is sought to charge a master for 
 the acts of his servant ; and where 
 there is such conflict of authority 
 on a subject, we are inclined to be 
 guided by principle rather than 
 follow adjudications which have 
 departed fi'om it, in the apparent 
 necessity for a departure in a given 
 case. If in the present instance the 
 train could have been stopped after 
 deceased was discovered on the 
 ti-estle by defendant's servants, that 
 fact can be proved by legitimate 
 testimony. The servants who made 
 the declai-ations offered in evidence 
 are competent witnesses for plain- 
 tiff to prove that her husband was 
 seen on the trestle by the servants 
 managing the train, and that the 
 train could have been stopped before 
 it reached him. It is no answer to 
 this that plaintiff could not rely upon 
 them because they were in defend- 
 ant's employment. We are not to 
 assume, in order to admit incompe- 
 tent evidence, that the only person 
 to whom the fact to be proved is 
 known would commit perjury. If 
 plaintiff cannot pi-ove by competent 
 testimony a fact essential to her re- 
 covery, we cannot establish a rule 
 in her favor, which in a hundred
 
 458 
 
 EVIDENCE. 
 
 [ciIAr. XIV. 
 
 if he liad lingered for such a time that the dcclaratious could 
 faiily liave been said to have been detached from the accident, 
 
 other cases would probably lead to 
 manifest injustice. But in O'Connor 
 J). Chicag^o, Milwaukee & St. Paul R. 
 R. Co., 27 Minn. IGG, it was held that 
 in case of an accident by a railroad 
 train running -upon and injuring' 
 horees on the track, what was said 
 by the engineer to the conductor of 
 the train Imniediately after the acci- 
 dent and after the train had stopped, 
 and ichile they were examining to 
 ascertain ichat mischief had been 
 done, indicating where he tirst saw 
 the horses on the track, there not 
 a])pearing anything but the occur- 
 rence to cause or procure the state- 
 ment, may be proved by the plain- 
 tiff" as part of the res gestcE. The 
 court said : "To make declarations 
 of an agent evidence against his 
 principal they must not only have 
 bci'ii made while he was engaged 
 in the business of the principal, but 
 they mu.st be a part of the transac- 
 tion out of which the controversy 
 arises. It is not enough that they 
 refer to or narrate the transaction 
 after it is past ; they must be so 
 connected in time and circumstances 
 with the principal fact as to be a 
 part of it. When declarations of 
 an agent or of a party himself are so 
 closely connected with the principal 
 fact as to be a i)art of the res gestcB, 
 is often a very nice question to de- 
 termine. Thei-e are on the point 
 many decisions which appear diffi- 
 cult to reconcile with each other." 
 This i-uling is supported by the fol- 
 lowing cases : Where the action was 
 for injury from a train of cars run- 
 ning over plaintiff's wagon and 
 horses, driven by his servant, it 
 was held the defendant might prove 
 a conveT*sation with the servant at 
 the time of the accident and rela- 
 tive to it. T. & W. Ry. Co. V. God- 
 
 dai-d, 25 Ind. 18.'>. In an action 
 against a railroad company for 
 damages, caused by delay in the 
 carriage of cattle, the statements 
 relating to the delay of the conduc- 
 toi-, made while he had control of 
 tlie train in which the cattle were, 
 were held part of the res gestae. 
 Sisson V. C. & T. R. Co., 14 Mich. 
 489. In an action against a railroad 
 company for wrongful expulsion 
 from one of its trains, a conversa- 
 tion had immediately after the ex- 
 pulsion, and serving to illustrate its 
 character, between plaintiff and 
 the offending brakeman, was held 
 part of the res gestae. Bass v. C. & 
 N. W. Ry. Co., 42 Wis. 654; S. C. 
 24 Am. Rep. 437. The accident 
 being the i-unning of a railroad 
 train against a jjeddler's wagon, 
 and the destruction of his goods, 
 the trial court admitted evidence of 
 what was said at the time of the 
 accident, by the engineer in charge 
 of the train, as to negligence in run- 
 ning it. This was hcsld no error by 
 the Supreme Court, which said : 
 " We cannot say that the declara- 
 tion of the engineer was no part of 
 the res gestae. It was made at the 
 time of the accident, in view of the 
 goods strewn along the road by the 
 breaking of the boxes, and seems 
 to have growm directly out of and 
 immediately after the ha})pening of 
 tlie fact. The negligence com- 
 plained of l)eing that of the engi- 
 neer himself, we cannot say that his 
 declarations made upon the spot at 
 the time, and in view of the effects 
 of his conduct, are not evidence 
 against the company as a part of 
 the very transaction itself." Han- 
 over R, Co. V. Coyle, 55 Penn. St. 
 396.
 
 SEC. 153.] 
 
 EES GEST^. 
 
 459 
 
 they would not have been admissible, ^ and the question as to 
 whether such a space of time has elapsed, is one which de- 
 pends entirely upon the circumstances of each case, and 
 whether a sufficient time had elapsed^ during which the person, 
 making them was conscious, so that an opportunity for fabri- 
 cating a declaration has existed. Thus, in an Ohio case,^ in 
 an action for injuries to a person by being thrown into a 
 ditch, evidence of what he said while being helped out was 
 held not to be a part of the res gestce, but an account of a 
 past transaction. In another case fifteen minutes,^ thirty 
 minutes,'* two hours.^ two days,^ one day,''' l)etweenthe hap- 
 pening of an event and the declaration, was held too long to 
 admit of it l)eing regarded as a part of the res gestae. But 
 from five to ten minutes was held not to be such a lapse of 
 
 ' Stiles V. Danville, 42 Vt. 282. 
 
 ^ Cleveland, &c., R. R. Co. v. 
 Mara, 26 Ohio St. 185. In Johnson 
 V. State, 65 Ga. 94, on trial of J. for 
 assault with intent to murder F., 
 F.'s exclamation, "Oh, Julia," 
 uttered, though half unconsciously, 
 so soon as she, F., was found on the 
 day of the assault, at the moment of 
 the restoration of sensibility, — were 
 held to be part of the res gestce. 
 
 " Jackson v. State, 52 Ala. 305. 
 
 * Denton v. State, 1 Swan (Tenn.), 
 297 ; Kinnard v. Burton, 25 Me. 39. 
 Thus, in an action for being run over 
 at a railroad crossing, statements 
 made by the plaintiff's driver an 
 half hour after the accident, as to 
 the reason he did not see the train, 
 were held not to be a part of the res 
 gestce. Pittsburgh, &c., R. R. Co. 
 V. "Wright, 80 Ind. 182. In an action 
 against a railroad company for 
 injuries from the blowing of the 
 whistle frightening the plaintiff's 
 horse, what he said soon afienoards 
 as to the engineer's shaking his fist 
 at him, was held not to be part of the 
 res gestce. So also, as to what the 
 engineer said on arriving at the next 
 station, indicating malice. Newsom 
 V. Georgia R. R. Co., 66 Ga. 57. A 
 
 remark by the engineer of the train 
 which ran over plaintiff, made in 
 plaintiff's presence two or thi-ee 
 hours after the accident, to the effect 
 that he did not see him until struck 
 by the locomotive, is not admissible. 
 Travis v. Louisville & Nashville R. 
 R. Co., 9 Lea (Tenn.), 231. Where 
 a boy, who had di-iven against a foot- 
 passenger on the street, immediately 
 stopped his horse, and came back 
 and said he did not mean to, held a 
 part of the res gestce. Cleveland v. 
 Newsom, 45 Mich. 62. A declaration 
 made some months after a mine was 
 located, and forming no part of the 
 act of location, was held inadmis- 
 sible as part of the res gestce. Kramer 
 V. Settle, 1 Idaho, N. S. 485. Ad- 
 missions of a conductor, made days 
 after a passengei* fell from his train, 
 that he kicked him off, are not part 
 of the 7-es gestce. Moore v. Chicago, 
 St. Louis, &c., R. R. Co., 59 Miss. 
 243. 
 
 ^ Rutherford v. Com., 13 Bush 
 (Ky.), 608. 
 
 ^ State V. Dominique, 80 Mo. 585. 
 
 ' State V. Ware, 62 Mo. 597; 
 Fourday & Harmon v. State, 3 Tex. 
 App. 51.
 
 ^QQ EVIDENCE. [CIIAP. XIV. 
 
 tiuie lis would necessarily pieveiit it from being so regarded;' 
 but in another case a declaration made by a party from three 
 t c) tive minutes after an assault ui)on him, was held too remote. * 
 So in a Wisconsin case^ the declarations of a person injured 
 by a pistol shot, made after his wound Avas dressed, and he 
 had taken his seat in a carriage to be taken home, were held 
 not to be admissible. Illustrations of this character might 
 be multiplied indefinitely, but after all, they would afford no 
 sure test in a given case, as to what is in fact a part of the 
 res gesloe. The real test is, whether the principal act and the 
 declarations or ads are detached from each other by such a 
 lapse of time as to make it possible for the parties to speak or 
 act from deliberate design, rather than from instinctive im- 
 pulse or the natural promptings of the inind* 
 
 Sec. 154. Acts, Etc., Before and After the Principal Facts. 
 
 What occurs after the principal act is complete, and an 
 opportunity for fabricating an explanation thereof has set in, 
 is no more a part of the res gestae, although it occurs wnthin 
 a very few moments after the act, than is a declaration made 
 several days afterwards. ^ Nor as a general rule can any- 
 
 > O'Shields v. State, 55 Ga. 696. ' Sorenson v. Dundas, 42 Wis. 
 
 ' State V. Pomeroy, 25 Kan. 349. 462. That declarations made by a 
 So in Hall v. State, 48 Ga. 607, a party after the transaction is ended, 
 declaration made from ten to twelve or an injury is received, so far de- 
 minutes after. tached therefrom in point of time 
 
 * Mutcher v. Pierce, 57 "Wis. 231 ; as to admit of deliberate design, or 
 35 Am. Rep. 776. as to be fairly detached from the 
 
 * In State v. Garrand, 5 Oregon, transaction to which they relate, are 
 216, the court say to make declara- not regarded as a part of the res 
 tions a part of the res yestce they gestCB, see Lane v. Bryant, 9 Gray 
 must be contemporaneous with the (Mass.), 245 ; Smith v. Webb, 1 
 main fact; but, in order to be con- Barb. (N. Y.) 230; McAdams ?'. 
 temporaneous, they are not required Brand, 35 Ala. 478 ; Osborne v. 
 to be precisely concurrent in time. Robbins, 37 Barb. (N. Y.) 481; 
 If the declarations spring out of the Simmons v. Macon, &c., R. R. Co., 
 transaction, if they elucidate it, if 28 Ga. 94 ; Nelson v. State, 2 Swan 
 they are voluntary and spontaneous, (Tenn.), 237; Detroit, &c., R. R. 
 and if they ai-e made at a time so Co. v. Van Steinberg, 17 Mich. 99 ; 
 near to it as rea.sonably to preclude Com. v. Harwood, 4 Gray (Mass.), 
 the idea of deliberate design, they 41 ; State v. Jackson, 17 Mo. 544 ; 
 are then to be regarded as contem- Wilson v. Sherlock, 36 Me. 295 ; 
 poraneous. Stewart v. Reddett, 3 Md. 67; Cherry
 
 SEC. 154.] 
 
 RES GEST^. 
 
 461 
 
 thing said or done before the principal act occurred, or was 
 loithin the contemplation of the parties, be regarded as a part 
 of the res gestcE, although only separated by the briefest 
 possible spun of time. Thus, in an action against a railway 
 company for injuries to the person, declarations made by the 
 conductor of the train, to a passenger, a moment before the 
 accident, as to the l)ad condition of the road and the ninnber 
 of times his train had run ofl' the track upon consecutive 
 trips next preceding the one in question, was held not ad- 
 missible in proof of negligence, either as res gestae or an 
 admission by the company. ^ The admission of such decla- 
 rations made before the act, would, except in exceptional cases, 
 be entirely contrary to the fundamental principle upon which 
 the doctriue relating to res gestoe is l3ased, tliat it explains and 
 unfolds the principal acts by the undesigned acts or declarations 
 of the parties, or others who participated in the act either as 
 actual participants or as ivitnesses tJtereof, because it would 
 hardly be said that what a person said or did before the prin- 
 cipal act was contemplated,^ could afford any light either upon 
 
 1). McCall, 23 Ga. 193; Carter v. 
 Buchanan, 3 id. 518 ; People v. 
 Graham, 21 Cal. 261 ; Luby v. Hud- 
 son River R. R. Co., 17 N. Y. 131 ; 
 Monday v. State, 32 Ga. 672 ; Mat- 
 teson V. N. Y., &c., R. R. Co., 35 
 N. Y. 487 ; Kinnard v. Burton, 25 
 Me. 39 ; Com. v. McPike, 3 Cash. 
 (Mass.) 181 ; State v. Dominique, 
 30 Mo. 585. Indeed, in Friedman v. 
 R. R. Co., 7 Phil. (Penn.) 203, it 
 was held expressly that even the 
 dying declarations of the deceased, 
 as to the cause of his injuries, could 
 only be given in evidence in an ac- 
 tion for negligence. See, also, Mar- 
 shall V. Chicago, &c., R. R. Co., 48 
 111. 475. 
 
 In Lambert v. The People, 29 
 Mich. 71, the court admitted state- 
 ments made by a person vi^ho had 
 been robbed, made to persons com- 
 ing up to him within three minutes 
 after the commission of the crime, 
 as a part of the res gestcB. 
 
 But if such a time had elapsed as 
 to detach the statements, in point of 
 time, from the transaction itself, the 
 evidence would not have been ad- 
 missible. Thus, in Hamilton v. Peo- 
 ple, 29 Mich. 171, for burning a 
 barn, it was held that statements 
 made by the respondent after the 
 fire were not admissible. 
 
 » Mobile, &c., R. R. Co. v. Ash- 
 i-aft, 48 Ala. 15. See also Green- 
 field V. People, 85 N. Y. 75 ; 39 Am. 
 Rep. 636. 
 
 * But see State v. Thomas, 30 La. 
 An. 600, where declarations of the 
 accused, made before the alleged 
 larceny, that the jjroperty was his 
 own, were held admissible on his be- 
 half as a i^art of the res gestcc. See 
 also Davis i>. Zimmerman, 40 Mich. 
 24, where it was held that such dec- 
 larations relating to the title of prop- 
 erty were, in some cases, admissible 
 as a part of the res gestOB, because 
 they tend to explain the acts of the
 
 4(32 
 
 EVIDENCE. 
 
 [ciiAr. XIV. 
 
 the motives of the parties, or what they did. But when the 
 principal act is once in contemplation by the parties, their acts 
 and ^ai/ing,s relating thereto, and ichich tend to explain or un- 
 fold the principal act, from that lime until the act is complete, 
 ure held to come under this head. ^ Thus, in a Vermont case,^ 
 
 part}' relating thereto. See also 
 Haynes v. Lippey, 40 Mich. 602. In 
 a Georgia case, where a quarrel 
 commenced at one groggery and 
 terminated in a homicide at another, 
 during the same night, in the same 
 village, it was held that all that 
 transpired at both groggeries was 
 admissible as res gestCB, though some 
 interval of time may have inter- 
 vened between the beginning and 
 end of the encounter. Stiles v. State, 
 57 Ga. 183. 
 
 ■ Where the negotiation for the 
 purchase of a boiler was adjourned 
 from the morning to the evening, 
 resulting in a sale and warranty, 
 evidence was held to be admissible, 
 of statements made by the seller in 
 the morning interview, pertinent to 
 a warranty of its quality and condi- 
 tion. Cunningham v. Parks, 97 
 Mass. 172. 
 
 In a claim case, the claimant set 
 up a deed from the defendant in 
 execution, which was claimed to be 
 fi-audulent. A memorandum con- 
 taining declarations of said defend- 
 ant, made in the coui-se of giving 
 instructions for preparing the deed 
 the day before its execution, to a 
 scrivener, who was also agent of the 
 claimant, who was absent, it was 
 held admissible in evidence as part 
 of the res gestCB. Pearson v. Forsyth, 
 61 Ga. 5:^7. 
 
 In Robinson v. State, 57 Md. 14 
 (MiLLKR and Irving, .JJ., dissenting), 
 upon a trial for abducting several 
 young children of A., it appeared 
 that the accused went to A.'s house 
 during his absence, and drove away 
 a wagon in which was A.'s wife, 
 
 children and furniture. The evi- 
 dence for the prosecution tended to 
 show that the wife and children 
 went with the accused through fear 
 of violence induced by his threats. 
 For the defense, the testimony of 
 the occupant of a house at which 
 the party stopped over night was 
 ofiered to show that the wife said 
 that .she left home voluntarily, tak- 
 ing the children and furniture with 
 her, and herself getting defendant 
 to drive the wagon, and that she 
 was not going to live longer with 
 her husband. It was held that this 
 evidence was admissible. 
 
 In suit for damages for assault 
 arid battery, evidence of what the 
 parties said during the altercation 
 which was followed by the assault 
 is admissible. All the words and 
 acts of the jjarties, and not detached 
 words and sentences, should go to 
 the jury. So, also, declarations of 
 a bystander made during the prog- 
 ress of such altercation, if necessary 
 to a full understanding of the char- 
 acter of the act complained of. 
 Baker v. Guisin, 76 Ind. 316. 
 
 In an action for the conversion of 
 personal property, the defense was, 
 that the plaintiff's claim was based 
 on a judgment confessed by J. for 
 the pui-pose of fraud. On the trial, 
 evidence was admitted of J.'s dec- 
 larations before sale, while on his 
 way to see one with whom he had 
 made arrangements that he should 
 buy the property. Held that the 
 declarations were admissible, being 
 a part of the fraudulent transac- 
 tion. Davis V. Drew, 58 Cal. 152. 
 
 » State V. Howard, 32 Vt. 380.
 
 SEC. 154.] 
 
 RES GESTAE. 
 
 463 
 
 where the respondent was indicted for abortion committed 
 upon one Olive Ash., from the effects of which she died, it 
 appeared from the testimony of her sister, who left her home 
 and went to the respondent's house with her, that she sup- 
 posed her sister to be pregnant and that they, her sister, 
 "left Sutton to get an abortion procured, as was understood 
 betiveen us at the time ive left.'''' It appeared from her testi- 
 mony that at the time when they started out upon this mis- 
 sion, they had not decided lohere to go, and that they did in 
 fact go to the respondent's. These declarations were held 
 admissible as a part of the res gestce, the court saying : 
 " The mere act of going was equivocal ; it might have 
 been for professional advice and assistance. The declara- 
 tions were of the same force as the act of going, and 
 were admissible as a jjart of the act." ^ In a Georgia 
 
 ' In Hunter v. State, 40 N. J. L. 
 495, a man, afterwards murdered, 
 made statements to his son, and 
 wrote a note to his wife a few hours 
 before leaving- home on the nig-ht of 
 the murder, to the effect that he was 
 going to the city of Camden on busi- 
 ness, and that the prisoner was go- 
 ing with him. It was held that such 
 statements, both oral and written, 
 were admissible as explainations and 
 pi-eparations of the act of going from 
 home. The court said: "Now I 
 think I may safely say that there 
 are few problems involved in the 
 law of evidence more unsolved than 
 what things are to be embraced in 
 those occurrences that are desig- 
 nated in the law as the res gestcB. 
 The adjudications on the subject, 
 more especially those in this country, 
 are perplexingly variant and dis- 
 cordant. I can readily find judicial 
 rulings by force of which this testi- 
 mony would be excluded ; but I can 
 as readily find other rulings of equal 
 weight that would sanction its ad- 
 mission . This result has grown out 
 of the difficulty of applying, with 
 anything like precision, general 
 
 rules to a class of cases of infinite 
 variety. In the well-considered 
 case of Lund v. Tyngsburgh, 9 Cush. 
 (Mass.) 42, it is said: 'The res 
 gestCB are different in different cases ; 
 and it is, perhaps, not possible to 
 frame any definition which would 
 embrace all the various cases which 
 may arise in pi'actice. It is for the ju- 
 dicial mind to determine, upon such 
 principles and tests as are estab- 
 lished by the law of evidence, what 
 facts and circumstances in partic- 
 ular cases, come within the import 
 of the term.' In the present in- 
 stance the test thus indicated will 
 be found, I think, in the rule that 
 such declarations as these are ad- 
 missible, because they are so con- 
 nected ^vith an act, itself admissible 
 as a part of the res gestce, as to have 
 become incorporated with it. The 
 declaration and the act must make 
 up one transaction. The theory 
 justifying this coui-se is, that when 
 such declarations are thus coupled 
 with a provable act, they receive 
 confirmation from it ; but if they 
 stand alone, without such support, 
 they depend altogether for their
 
 4(54 
 
 EVIDENCE. 
 
 [chap. XIV. 
 
 case,' two pei-sons agreed to fight a duel, and then sepa- 
 rated to arm themselves for that purpose, and agreed 
 
 ' State V. Cox, 64 Ga. 374 ; 37 Am. Rep. 76. 
 
 credence on the veracity of the 
 utterer, and thus conditioned they 
 are pure hear.say, and inadmissible. 
 Alluding to the rule that excludes 
 hearsay, Mr. Starkie, vol. 1, p. 65, 
 says : * The principle does not ex- 
 tend to the exclusion of any of what 
 may be termed real or natural facts 
 and circumstances in any way con- 
 nected with the transaction, and 
 from which any inference as to the 
 truth of the disputed fact can rea- 
 sonably be made.' The present 
 point of inquiiy therefore is, whether 
 these declarations of Mr. Armstrong 
 to his son, and his similar declara- 
 tion contained in the note to his 
 wife, can reasonably be said to be 
 component parts, or the natural in- 
 cidents of the act of the deceased 
 in going to Camden, which act was 
 incontestably apart of the res gestcB. 
 After mature reflection and a care- 
 ful examination of the authorities, 
 my conclusion is. that these com- 
 munications of the deceased should 
 be regarded as constituents of that 
 transaction, for I think they were 
 preparations for it, and thus were 
 naturally connected with it. In the 
 cirdinary course of things it was the 
 usual information that a man about 
 leaving home would communicate 
 for the convenience of his family, 
 the information of his friends or the 
 regulation of his business. At the 
 time it was given, such declaration 
 could, in the nature of things, mean 
 hann to no one ; he who uttered 
 them was bent on no expedition of 
 mischief or wrong, and the attitude 
 of affairs at the time entirely ex- 
 ])ln(1es the idea that such utterances 
 were intended to serve any pui-pose 
 but that f(.ir which they were obvi- 
 
 ously designed. If it be said that 
 such notice of an intention of leav- 
 ing home could have been given 
 without inti'oducing in it the name of 
 Mr. Hunter, the obvious answer to 
 the suggestion I think is, that a 
 reference to the companion who is 
 to accompany the person leaving is 
 as natural a part (jf the transaction 
 as is any other incident or quality 
 of it. If it is legitimate to show by 
 a man's own declarations that he 
 left his home to be gone a week, or 
 for a certain destination, which 
 seems incontestable, why may it 
 not be proved in the same way that 
 a designated person was to bear 
 him company ? At the time the 
 words were uttered or written they 
 imported no wrong-doing to any one, 
 and the reference to the comiaanion 
 who was to go with him was noth- 
 ing more, as matters then stood, 
 than an indication of an addi- 
 tional circumstance of his going. 
 If it was in the ordinary train of 
 events for this man to leave word, 
 or to state where he was going, it 
 seems to me it was equally so for 
 him to say with whom he was go- 
 ing. I am unable to see that the 
 reference made to Mr. Hunter by 
 the deceased was not as closely com- 
 bined with the probable act of his 
 going to Camden as were the in- 
 quiries made by Parkman as he 
 passed through the streets of Cam- 
 bi-idge, for the house of Dr. "Webster, 
 and those inquiries were admitted 
 as evidence by Chief Justice Shaw. 
 Report of Webster's case. It is true 
 that in that instance the inquii-ies 
 happened to be precisely contem- 
 poraneous with the act being done ; 
 but all the authorities admit that it
 
 SEC. 154.] 
 
 RES GEST^. 
 
 465 
 
 to meet agtiiii within an hour. The agreement was not 
 carried out, but the respondent sought out the other party 
 
 would be absurd to require exact 
 coincidence in point of time between 
 the doing of the act and saying of 
 the words explanatory of it. Thus, 
 in the case already cited from 9 
 Cush., it is said : ' So declarations, 
 to be admissible, must be contem- 
 poraneous with the main fact or 
 transaction ; but it is innpracticable 
 to fix by any general rule any exact 
 instant of time, so as to preclude 
 debate or conflict of opinion in re- 
 gard to this ijarticular point. Lord 
 Denman is quite strong in his ex- 
 pressions on this subject, for in 
 Rouch V. Great Western R. R. Co., 
 1 Q. B. 60, he uses this language : 
 ' The principle of admission is, that 
 the declarations are pars rei gestCB, 
 and therefore it has been contended 
 that they must be contemporaneous 
 with it ; but this has been decided 
 not to be necessary on good grounds, 
 for the nature and strength of the 
 connection with the act are the 
 material things to be looked to, and 
 although concurrence of time can- 
 not but be always material evidence 
 to show the connection, yet it is by 
 no means essential.' In the case 
 now under consideration these 
 declarations are so naturally, and 
 therefore strongly, associated with 
 the act in contemplation, that in my 
 estimation the most exact contempo- 
 raneousness of the two things would 
 give no additional force to the con- 
 nection between them. There is 
 nothing in the case to countenance 
 the notion that any change of pur- 
 pose occuiTed between the time of 
 the expression of such purpose and 
 the execution of it, so as there is no 
 extraneous interference, the dis- 
 closure of the intention and its per- 
 formance may be said to be, within 
 the meaning of the authorities, one 
 
 30 
 
 entire transaction. It is principally 
 from the foregoing considei'ations 
 that I find myself constrained to 
 think that the declarations under 
 discussion, even if they stood in the 
 case unsupported or unaffected by 
 other circumstances, were admis- 
 sible, on general principles, on the 
 single ground that they were natural 
 and inartificial concomitants of a 
 probable act, which itself was a 
 part of the res gestce. In such a 
 status of the evidence I should 
 think that the exception to the 
 principle that rules out hearsay had 
 been carried to its extreme limit, 
 but without transcending such 
 limit." 
 
 In this case, it must be observed, 
 there was nothing in the declarations 
 going to charge the prisoner with 
 any ci'iminal intent or motive. 
 
 In Douglas t'. Chapin, 26 Conn. 
 76, the plaintift"'s intestate had con- 
 tracted to go to California and take 
 charge of defendant's steamboat. 
 In an action on the contract, it was 
 held that his statement on leaving 
 San Francisco, that he was going up 
 the river to Sacramento to go on 
 board the boat, was admissible, as 
 part of the res gestCB, in proof that 
 he so went. The court simply said, 
 " It was manifestly a pai*t of the res 
 gestcB." 
 
 In State v. Dula, Phillips (N. C), 
 211, the deceased was met a few 
 miles from the place where she was 
 murdered, going on horseback in 
 that direction. It was held that 
 her declarations then and there that 
 she was going to that place to meet 
 the prisoner were inadmissible in 
 evidence. The court said these 
 declarations may have been true or 
 may have been false, but were not 
 verified by the tests which the law
 
 4GG 
 
 EVIDENCE. 
 
 [chat. XIV. 
 
 uiid killed him, and it \v:us held that declarations of the de- 
 ceased made in the inlcrvcd, to third persons, to the effect that 
 
 of evidence requires, namely, the 
 sanction of an oath, and an oppor- 
 tunity for cross-examination. 
 
 In People v. Williams, 3 Abb. Ct. 
 App. Dec. (N. Y.) 596. on an indict- 
 ment for poisoning, it was held that 
 evidence that the deceased, ongoing 
 out of the house just before she was 
 poisoned, said she was going to meet 
 the prisoner, was not admissible as 
 tending to prove theii- meeting, even 
 in connection with her illness on her 
 return, and her attributing it to 
 what he had given her to di-ink. 
 The court, Denio, J., said: "To 
 render the declaration competent, 
 the act with which it is connected 
 should be pertinent to the issue ; for 
 where the act is in its own nature 
 irrelevant, and when the declara- 
 tion is pel' se incompetent, the union 
 of the two will not render the dec- 
 laration admissible. The material 
 fact here was, that the prisoner and 
 the deceased were together on 
 Saturday night. Even this was not 
 a principal fact, but only a circum- 
 stance to show that the prisoner had 
 an opportunity to commit the offense. 
 That the deceased left the house in 
 Duane street at a particular time 
 was of no materiality unless it was 
 also shown that during her absence 
 she met the defendant. The act 
 itself was indifferent to the issue, 
 whatever the intention with which it 
 was done. If the deceased met the 
 prisoner, and thus afforded an op- 
 portiuiity of committing the offense, 
 it is immaterial whether she ex- 
 pected or intended to meet him or 
 not ; and so of course if she failed 
 to meet him, he could not properly 
 be prejudiced by the circumstance 
 that she went out with a design to 
 go to him. The evidence was not 
 oflFered to qualify an act connected 
 
 with the issue, but to induce the 
 jury to infer anothei* act not other- 
 wise shown to exist, that of his being 
 in company with the deceased. Sup- 
 pose a declaration had been made 
 by the deceased, on the previous 
 day, of an intention to go to her 
 husband on that particular evening ; 
 such declaration, being unaccom- 
 panied by any act, would i-e.st wholly 
 in assertion, and would be clearly 
 without the rule referred to ; yet the 
 proof would be essentially of the 
 same character, and subject to no 
 greater objections than the evidence 
 we are considering. I am of opinion , 
 therefore, that the case was not 
 within the rule admitting a declara- 
 tion accompanying an act, on the 
 ground of its being a part of the res 
 gestae." 
 
 In Carroll ^>. State, 3 Humph. 
 (Tenn.) 315, the declarations of the 
 deceased while on a journey with 
 the prisoner, and in State v. Vincent, 
 24 Iowa, 570, his declarations as to 
 the object of a contemplated journey 
 which he afterward took, were re- 
 ceived in evidence. In neither case 
 was there anything in the declara- 
 tions tending to fasten any ci-iminal 
 intent on the jtrisoner. 
 
 In Cheek v. State, 35 Ind. 492, a 
 witness was allowed to testify to the 
 following declaration by the de- 
 ceased concerning the prisoner just 
 before his death : " Doc, I am glad 
 you have come ; there are two 
 ruffians going up the road, and they 
 hav<^ threatened to take my life ; 
 they have gone to my house, and I 
 want you to go back wth me." The 
 court said : " Was it res gestccf We 
 think not. Bouvier says: 'When 
 it is necessary, in the course of a 
 cause, to inquire into the nature of a 
 particular act, or the intention of the
 
 SEC, 
 
 154.] 
 
 RES GEST^. 
 
 4G7 
 
 the respondent was seeking his life, were evidence against 
 
 person who did the act, proof of 
 what the person said at the time 
 of doing- it is admissible evidence as 
 a part of the res gestcB, for the pur- 
 pose of showing its true character.' 
 "We think the books may be searched 
 without success, to tind a case where 
 the statements of a murdered man, 
 made before he came in sight or 
 hearing of liis slayer, can be given 
 in evidence against the accused on 
 his trial." 
 
 State V. Dickinson, 41 Wis. 299, 
 was a criminal action for procuring 
 the death of a pregnant woman by 
 abortion. It was claimed that the 
 death occurred on Saturday. The 
 witness, Mary Erickson, was per- 
 mitted to testify as to conversations 
 had by her with the deceased on the 
 previous Wednesday and Friday, in 
 which the deceased stated that she 
 understood or had found out that 
 she was in a family way ; that she 
 had been to see the defendant about 
 it ; had been or was going to de- 
 fendant to get medicine and syringe ; 
 that she had made an arrangement 
 or bargain with defendant to have 
 an operation performed upon her ; 
 was to give $25, and was to i-eturn 
 to defendant's on Satui-day after- 
 noon for the purpose of having 
 instruments used to get rid of the 
 child. The prosecution offered this 
 evidence to show that the deceased 
 had at that time the intention of 
 having an abortion produced. In 
 his charge the judge so restricted 
 the effect of the testimony, and 
 directed the jury that all the dec- 
 larations of the deceased made 
 before she was informed she could 
 not live, in which the defendant's 
 name was connected, could only be 
 considered as evidence tending to 
 show that at that time the deceased 
 had formed the purpose to go to the 
 defendant to have an abortion pro- 
 
 duced upon her, but was not evi- 
 dence that the defendant actually 
 produced the abortion or had en- 
 gaged to do it. The court on review 
 said : " The first inquiry is, whether 
 the declarations of deceased to Mary 
 Erickson were admissible for the 
 jiurpose of showing her intention, 
 and as their scope and effect were 
 i-estricted by the court, we are of 
 opinion that they were. They con- 
 stituted a part of the res gestce, were 
 contemporaneous with the main fact 
 under consideration, and were so 
 connected with it as to illustrate its 
 character. 1 Greenl. Ev. 108. It 
 was certainly competent to prove 
 that the deceased went to the house 
 of the defendant at the time it was 
 charged in the information the 
 abortion was produi-ed. Upon the 
 authorities, her intent or purpose in 
 going there might be shown by her 
 declarations then made or previously 
 made, because such declarations 
 became a part of the res gestce. For 
 it is evident the declarations were 
 connected with the act of her going 
 to the defendant, were expressive of 
 the character, motive or object of 
 her conduct, and they are to be re- 
 garded ' as verbal acts indicating a 
 present purpose or intention, and 
 therefore are admitted in proof like 
 any other material facts.' 1 Greenl. 
 Ev., supra; Insurance Co. v. Mosley, 
 8 Wall. 397 ; Enos v. Tuttle, 3 Conn. 
 27 ; Corinth v. Lincoln, 34 Me. 310 ; 
 Lund V. Inhabitants of Tyngsbor- 
 ough, 9 Cush. (Mass.) 36; Nutting 
 V. Page, 4 Gray (Mass.), 581 ; State 
 V. Howard, 32 Vt. 380; Moore v. 
 Meacham, 10 N. Y. 207; People v. 
 Davis, 56 id. 96. It is obvious that 
 the mere act of the deceased going 
 to defendant's house was equivocal ; 
 it might be innocent or not ; it might 
 warrant the inference that she went 
 for proper treatment of some ail-
 
 4G8 
 
 EVIDENCE. 
 
 [chap. XIV. 
 
 the lospoiidciit on an iiulKtincMit lor murder.^ In a Tonnes- 
 sec case,* u[)on an indiclnicnt for murder, evidence was ad- 
 mitted of tlu' (leclaiation of the deceased, on the evening 
 before he was missed, tliat lie was going to the Pine moun- 
 tain, to hunt a saltpetre cave. The court said : "It is part 
 of the transaction ; cxphiins the reasons why Eh'od was in 
 tiio Pine mountain, and constitutes a fact in the case." *' This 
 dechiration, mad(\ as it may l)e said, while on his way, and 
 explaining the reason of his going, constitutes an important 
 fact to elucidate the (piestion of his death." But a declara- 
 tion, " shortly before his death," th:it he had been to the 
 mountain, and Avas going out shortly again, was held inad- 
 missible. There was nothing in the evidence admitted tend- 
 ing to charge the prisoner with the nmrder, by the mere 
 statement of the deceased. In the same case, on the subse- 
 quent trial, ^ evidence was admitted of the statement of the 
 
 ment ; the declarations would render 
 her motive clear and intelligible. 
 They therefore seem to us as falling- 
 under the denomination of the res 
 gestcc, and were admissible as 
 original evidence, as distinguished 
 from hearsay. 
 
 In People v. Davis, ante, when the 
 deceased came home, in answer to 
 inquiries from her stepmother she 
 made statements telling what had 
 been done to her by Dr. Crandall at 
 his office, and how he did it, ex- 
 hibiting certain medicine which she 
 said the doctor gave her, and stated 
 what he told her as to taking it when 
 her pains came on. The court held 
 these declarations incompetent be- 
 cause they wei*e merely narratives 
 of past occuri'ences, did not become 
 a part of the thing done at the doc- 
 tor's office, and where therefore no 
 part of the res gestcB. But the court 
 pay : ' Had it been sho^vn that the 
 medicine was to be taken to aid in 
 producing the miscarriage, what 
 was said in respect to it would have 
 been admissible.' The conclusion 
 which we have reached in view of 
 
 all the cases upon the subject is, 
 that the declarations of the deceased 
 made to the witness Mary Eric.kson 
 were so connected with her act of 
 going to the defendant's as to con- 
 stitute a part of that act, and were 
 admissible as explanatory of that 
 act. See Regina v. Edwards, 12 
 Cox's Cr. Cas. 230." 
 
 ^ Warner, C. J., dissented, but we 
 are inclined to believe that the doc- 
 trine announced by the court, while 
 going to the very outer limits, is^ 
 nevertheless sustained by respect- 
 able authorities, aud does not im- 
 pugn the rules and principles appli- 
 cable to 7-es gestae. 
 
 * Kirby v. State, 7 Yerg. (Tenn.) 
 259. 
 
 ^ Kirby v. State, 9 Yerg. (Tenn.) 
 3S1. In England such declarations 
 are held not to be a part of the res 
 gestcB, and consequently not admis- 
 sible. Reg. V. Wiunwright. 13 Cox 
 C. C. 171; Reg. ?>. Edwards, 12 id. 
 230; Reg. v. Buckley, 13 id 293. 
 In the Hayden Case, tried in Con- 
 necticut in 1877, the prisoner, a 
 clergyman, was indicted for the
 
 SEC. 154.] KES GESTAE. 469 
 
 deceased, not only that he was going to the Pine mountain, 
 but also that the prisoner was to accompany him and show 
 him a saltpetre cave. For this error a new trial was granted. 
 The court said : " How how does this statement constitute 
 any part of the thing doing ? Whether Kirby was to accom- 
 pany him or not, could not affect his intentions in going to 
 the mountain, nor could his statement of that fact tend to 
 explain his purpose in going there. His declaration of his 
 own purpose is evidence, because it explains his intentions, 
 and his intentions constitute part of the thing he was doing. 
 He was traveling, and as he was going, he had certain inten- 
 tions, and as these intentions could only be known by his 
 declarations of them, such declaration is evidence. But it is 
 impossible that Kirby's going with him could constitute any 
 part of the thing which he was doing, which was his own 
 journey." 
 
 So, too, the res gestae generally remains with the locus in 
 quo and does not follow the jmrties after the principal act is 
 complete.^ Thus, if a party is injured by reason of a defect 
 in a highway, declarations made by him at the place of the 
 injury, immediately upon the happening of the accident, are 
 a part of the res gestae, ; but after the party has gone away 
 from the locus in quo, however soon after the iiijur}^, his dec- 
 murder of one Mary Stannard. passed upon by the appellate court, 
 The motive for the murder, as was yetthere is reasonable ground, judg- 
 supposed, was the pi-egnancy of the ing from former decisions of the 
 •deceased as the result of illicit inter- court of that State, for believing 
 course with the i-espondent, who that the ruling would have been 
 was a married man. The deceased sustained. Douglas v. Chapin, 26 
 was found dead in a piece of woods, Conn. 76. Nor was the rule carried 
 near which the respondent was at further than it had been cai-ried in 
 work when the deceased left her other States. State v. Vincent, 24 
 home. Upon the trial evidence was Iowa, .')70 ; Check v. State, 35 Ind. 
 admitted that the deceased, on the 492 ; State v. Hunter, 40 N. J. L. 495. 
 day of the murder, declared that ' Prideaux v. Mineral Point, 43 
 she was pregnant by Hayden, and Wis. 513. In State v. Seymour, 1 
 that she had seen him that day, and Houst. Cr. Cas. (Del.) 508, a dec- 
 that he had promised to get her laration made by the respondent 
 some medicine, and that she was after he had gone two hundred yards 
 going to the woods to meet him and from the place of shooting, that it 
 receive it that day. These declara- was accidental, was held not to be a 
 tions were admitted by the court, part of the res gestae. 
 And, while the question was never
 
 470 EVIDENCE. [chap. XIV. 
 
 laiations cease to be a part of the res geslce, so far as the cause 
 of the accident is concerned. In the Wisconsin case,' cited 
 in the hiat note, statements made hy the driver of the carriage, 
 after he returned to the stable with the horses and carriage, 
 as to the cause of the injury, were held not admissible, the 
 court saying : " The rei> gcstia. of this accident did not go with 
 the team to the livery stable, but remained in the locus in 
 quo with the injured woman; and the declarations of the 
 driver to the liveryman were a subsequent narrative of the 
 res geske.'^ In another Wisconsin case,^ which was an action 
 for personal injuries resulting from a pistol shot wound in- 
 flicted u[)on the plaintift''s minor son, it wiis held that 
 declarations made by the son after his wound was dressed, 
 and he had been placed in a carriage to be taken home, as to 
 the cause of the injury, were not admissible as a part of the 
 res gest(2. In a New York case,^ however, such declarations 
 lUJ to the nature of the injiuy, and its extent, made by the 
 injured person, were held to be admissible w^liere the injury 
 resulted from his being thrown from a sleigh in consequence 
 of a defect in a highway, after he had got back into the sleigh 
 again. But the distinction between these cases is, thai in 
 the one case the declarations related to the cause of the injury, 
 while in the other they related t(J the nature of the person's 
 injury, which with him was a present and continuing fact.* 
 
 Sec. 155. Illustration of the Rule Relating to Res Gestae. 
 
 Everything is a part of the res gestoi which attended and 
 was immediately connected with an act done, so nearly in 
 point of time as to preclude the idea that the act was done 
 or the statement made for the purpose of making evidence 
 for the party, and it is for the jury to determine whether 
 they were made without artifice or premeditation.^ Thus, 
 
 ' Prideaiix r. Mineral Point, ante, on which his opinion is based. But 
 
 " Mutcher v. Pierce, 49 Wis. 231. other unconnected assertions in the 
 
 * Powei-s V. "West Troy, 25 Hun same conversation charg-ing a per- 
 (N. Y.), 561. son wth criminal acts, to procure a 
 
 * Declarations made to a physician miscaiTiag-e, are not admissible, 
 of bodily feelings and symptoms of State v. Gedicke, 43 N. J. L. 86. 
 ■pr^gnsincy at the time of examination ' Hartt). Powell, 18 Ga. 635. 
 
 are admissible as a part of the facts
 
 SEC. 155. j RES GEST^. 471 
 
 the following matters have been held to be a part of the res 
 gestce, and provable as such : Declarations of bystanders at 
 a public sale ;' of a party in possession of property, made at 
 the time of the transfer to him, as to the nature of his pos- 
 session. ^ So declarations made at the time of delivering 
 money to a married woman, by the person delivering it, in 
 the nature of directions or suggestions as to its disposition, 
 upon the question whether the money was received by her as 
 her husband's or her own ;3 and the declarations of the wife, 
 made contemporaneously with the delivery of money to 
 another person, to the effect that it was her separate prop- 
 erty, and did not belong to her husband. Otherwise, as to 
 her declarations made at the same time, to the effect that the 
 money was the proceeds of her own labor, under an agree- 
 ment with her husband that she might retain it as her own ;* 
 letters addressed by the plaintiff to the defendants to show 
 a legal demand of a conveyance of the land, or for the re- 
 payment of the monc}'.^ Declarations of a principal to a 
 note, as to the relations of the parties whose names were 
 already upon it, made to the plaintiff at the time of obtain- 
 ing his signature thereto.^ Everything that takes place be- 
 tween the parties to a verbal contract l^efore its completion.''' 
 What was said by a constable at the time of making a levy, 
 as to the fact of the levy, and as corrol^orative of the evi- 
 dence afforded by the return.^ The conditions of sale under 
 an execution.^ Statements made b}' a physician from his 
 patient while attending him, and confirmed by a post mortem 
 examination, in a case where the state of health of the patient 
 is a material issue ;'" declarations of a public surveyor, when 
 running a line, that he was running a divisional line ; " of a 
 party paying money, for the purpose of showing the appli- 
 
 ' Stewart v. Severance, 43 Mo. ' Pierson v. Hoag, 47 Barb. (N. 
 
 322. Y.) 243. 
 
 ' State V. Schneider, 35 Mo. 533. * Grandy v. McPherson, 7 Jones 
 
 ' Hall V. Young, 37 N. H. 134. (N. C.) L. 347. 
 
 * McLemore v. Pinkston, 31 Ala. * Arnold v. Gorr, 1 Rawle (Pa.), 
 266. 223. 
 
 * Merrill v. Downs, 41 N. H. 72. '» Looper v. Bell, 1 Head. (Tenn.) 
 
 * Whitehouse v. Hanson, 42 N. H. 373. 
 
 9- " George v. Thomas, 16 Tex. 74.
 
 472 EMDENCE. [cUAr. XIV. 
 
 cation or appropriutioii of the money paid ; ' negotiations 
 between pal•tie:^, showing to whom credit was given, and ex- 
 plaining the Side in question ;-' declarations of a pliysiciau, 
 on leaving home and taking medicine with him, as to the 
 person whom he is going to visit ; ^ of a party, at the time 
 of receiving money, to the elFect that more was due him, 
 to repel the inference that he received the payment as in full 
 of all tlcmands ;^ of a third person made to, and in the 
 presence of, parties engaged in a controversy at the time of 
 the doing of an act by one of them, which becomes the sub- 
 ject of an action ;° of a party while engaged in building, as 
 to whom he was at work for, in order to show the nature of 
 the contract ; ^ admissions of a principal, if made during 
 the transaction of the business for which the surety was 
 bound ; and the acts and sa^angs of a constable at the time 
 of a levy, in an action against the sureties on his bond, for 
 neglect to return the attachment ; "^ declarations of a party 
 accom[)anying his acknowledgment of service of any pro- 
 cess ; ® all that a claimant says to the sheritf at the time of 
 a levy ; ^ advice tVom a shipmaster to the owner's agent 
 abroad, in an emergency caused by the acts of the master ;^** 
 the declarations of the plaintifi' in an attachment suit as to 
 his reasons for having it issued, made at the time it was 
 issued ; " of a donor at the time of the delivery of slaves, 
 that they were delivered to the trustee, jmrsuant to the 
 provisions of a deed ; '- representations made l)y a sick 
 person to a medical attendant, of the nature, symptoms, 
 and (froct of the malady, under which he is laboring;'* 
 evidence of a demand of specie by the sherifl', by the direc- 
 tion of the plaintitf in execution, after the property had 
 
 ' Bank of Woodstock v. Clark, « Feagan v. Cuneton, 19 Ga. 404. 
 
 25 Vt. 308. Moi-gan v. Sims, 26 Ga. 283 ; 
 
 " Ea.stinan v. Bennett, 6 Wis. 232. Drumrig-ht v. State, 29 Ga. 430. 
 
 " Autauga County v. Davis, 32 "> Law v. Cross, 1 Black (U. S.), 
 
 Ala. 703. 533. 
 
 * Dillard v. Scruggs, 36 Ala. 670. » Wood v. Barker, 1 Ala. Sel. Cas. 
 
 * Gillam v. Sigman, 29 Cal. 637. 311 ; 37 Ala. 60. 
 
 * Printup V. Mitchell, 17 Ga. 558. " Hale v. Stone, 14 Ala. 803. 
 
 ' Dobbs V. Justice, &c., 17 Ga. " Johnson v. State, 17 Ala. 618. 
 624.
 
 SEC. 155.] RES GESTAE. 473 
 
 been bid off, and of the purchaser's offer to pay in current 
 banknotes, with the difference between them and specie;^ 
 declarations of the grantor, while in possession of property 
 conveyed, to the effect that he held for the grantee ; - instruc- 
 tions by one of the parties to his assistant ; ^ the statements 
 of officials made during the prosecution of a work for a 
 municipal corporation to persons engaged upon it, as sliow- 
 inof the manner and circumstances under which the work was 
 begun and prosecuted ; ^ of the seller of goods, made at the 
 time of the sale, not only for the purpose of discrediting his 
 testimony, when he had been called as a witness, but also as 
 direct evidence of the sale ; ^ statements made by a manda- 
 tary, at the time of a demand and refusal to delivery the 
 property, in which he gives an account of the loss by acci- 
 dent or theft, wdth the attendant circumstances ; *^ of a 
 grantor, made at the time of executing a conveyance ; and 
 evidence of the intent of the grantor in executing the con- 
 veyance, as against him and those claiming under liini.'^ 
 
 Where a married woman sought to avoid her mortgage, 
 on the ground of duress by her husband, she was allowed to 
 offer evidence of the state of her mind and of her health at 
 the time of her acknowledgment, and that this had been 
 preceded by threats and menaces of her husband, incase she 
 should refuse it.® 
 
 So, A. having delivered wool to B. to Ije manufactured, 
 called on him to ascertain what progress had been made, and 
 B. showed him wool, yarn, etc., whicli he said l)elonged to A., 
 in an action of trover against C, who attached the wool, 
 etc., as the property of B., it was held that this declaration 
 of B., who afterwards absconded, was admissible as part of 
 the res gfestce, to prove that the wool, etc., were the prop- 
 erty of A.^ 
 
 ' Hudson V. Crow, 26 Ala. ,51.5. Badger v. Story, 16 N. H. 168 ; 
 
 * Jolinson V. Boyles, 26 Ala. 576. Cheswell v. Eastham, id. 296 ; Kent 
 ^ Nelson v. Smith, 28 111. 495. v. Harcourt, 33 Barb. (N. Y.) 491. 
 
 * Maher v. Chicag-o, 38 111. 266. * Central Bank v. Copeland, 18 
 
 * Dale V. Gower, 24 Me. 563. Md. 305. 
 
 ® Lampley v. Scott, 24 Miss. 528. ' Pool V. Bridges, 4 Pick. (Mass.) 
 ' Gamble i\ Jolinson, 9 Mo. 605 ; 378. 
 Palter v. McDowell, 31 Mo. 62;
 
 474 EVIDENCE. [chap. XIV. 
 
 So, on the trial of a real action, after the demandant had 
 given evidence tending to .show that the tenant's deed of the 
 demanded premises Avas not given to him on any pecuniary 
 consideration, the tenant offered in evidence his attested note, 
 iriven to his grantor a few weeks after the execution of the 
 deed, and the testimony of the attesting witness, that when 
 the note was given, he understood, from the conversation 
 between the grantor and the tenant, that it Avas given on ac- 
 count of a mortgage on the demanded premises, and to pay 
 the grantor's debts, and that when the note should be paid, 
 the tenant was to have the demanded premises. It was held 
 that this evidence Avas admissible as part of the res gestae.^ 
 
 So, in an action against a surgeon, for negligently treating 
 a fractured thigh l)onc, the defendant, in support of his alle- 
 gation that he had placed the fractured limb upon a double- 
 inchned plane, at an angle of forty-five degrees, or there- 
 abouts, introduced a witness Avho testified to statements made 
 in the presence of the plaintiff", by the defendant to the Avitncss, 
 at the time Avhen the defendant brought the machine to the 
 }.laintiff''s house, about the principle upon A\'hich the machine 
 operated, and liow it might be made a double-inclined plane 
 of any angle, by means of a screw. The evidence was ad- 
 mitted, and on exceptions, the court held that, both as res 
 gesU.e and as a statement made in presence of the party, 
 they could not sa}' that it Avas erroneously admitted.^ 
 
 In an action of trover for slaves, the plaintiff' claimed 
 under a deed of gift, and the defendant under a subsequent 
 sale on an execution against the donor. It Avas held that 
 evidence was admissible as to the question of the purchaser's 
 notice of the deed of gift, of a conversation between the 
 purchaser, the donor and the father, the natural guardian of 
 the donees, AV'ho Avere minors, Avhich occurred Avhcn the 
 former Avent to seek information immediately before the 
 sale, he having heard that there Avas an outstanding title to 
 the slaves.^ 
 
 » Blood V. Rideout, 13 Met. * Black v. Thornton, 31 Ga. 641 ; 
 (Mass.) 237. 30 id. 361. 
 
 ^ Moody V. Sabin, 9 Cush. (Mass.) 
 505.
 
 SEC. 156.] RES GEST^. 475 
 
 In trespass by the owner of the land, the defendant set up 
 his occupancy of that portion of the premises upon which 
 the alleo-ed trespass was committed ; the phimtiif endeavored 
 to show an abandonment of the occupancy, by the defend- 
 ant having moved oif the fencing, etc. It was held compe- 
 tent to prove the declarations of the defendant in that regard 
 at the time he was removing the fence, as a part of the res 
 gestoe.^ 
 
 Where a managing partner who had been in the habit of 
 borrowing checks for the purpose of meeting his firm's lia- 
 bilities, a short time before the firm dissolved, called at the 
 oflSce of S. and reciucsted his check, which was made pay- 
 able to currency, for an hour or so, until he could collect 
 some bills due the firm, but afterwards failed to pay it, and 
 the book-keeper who wrote the check entered at the time 
 upon the stub of the check that it was drawn payable to 
 the firm, it was held that the evidence of the book-keeper in 
 regard to the stub of the check was admissible as part of 
 the res gestm in a suit against the firm to recover the amount 
 of the clieck.^ 
 
 The cashier of a bank, having left the town under circum- 
 stances inducing a suspicion that he had carried away gold 
 belonging to the bank, was arrested by the sherift', and cer- 
 tain gold found secreted on his person was taken possession 
 of by the sherifi". The bank sued the sherift' for the gold. It 
 was held that evidence by third persons of the declarations 
 made Ijy the arrested persons, to the efiect that the gold 
 belonged to the bank, etc., were admissible as a part of the 
 7'es gestoe.-^ 
 
 Sec. 156. Declarations of Conspirators, when Evidence Against Co- 
 conspirators. 
 
 A well-known example of evidence admissible as part of 
 the res gestm is supplied in the instance of prosecutions 
 which involve a charge of conspiracy. It is an established 
 rule, that where several persons are proved to have com- 
 bined together for the same illegal purpose, any act done by 
 
 » Welch V. Louis, 31 111. 446. ^ Boone, &c., Bank v. Wallace, 18 
 
 « Stark V. Corey, 45 111. 431. Ind. 82.
 
 47G 
 
 EVIDENCE. 
 
 [chap. XIV. 
 
 one of the party in inirsuance of the original concerted 
 plan, and with rcfei-ence to the common object, is, in the 
 contemplation of the law, the act of the whole party ; * it 
 follows, therefore, that any writings or verbal expressions, 
 being acts in tluMnselves, or accompanying and explaining 
 other acts, and so being part of the res gestf2, and which are 
 brou'T-ht home to one conspirator, arc evidence against the 
 other conspirators, provided it sufficiently appears that they 
 were used in the furtherance of a common design. ^ 
 
 The common dcsigji must be first shown before the state- 
 ments or declarations made by one of them, in the absence 
 of the others, can be given in evidence against the others. =» 
 Proof of the plot or combination must precede proof of dec- 
 larations made by either of the alleged conspirators, though 
 the conduct, acts and declarations of the separate parties in 
 the planning or execution of the scheme may be shown as 
 evidence of the common design.^ And the common design 
 having been proved, the declarations of one of the parties 
 may be shown in evidence against them all.^ 
 
 * Charge of Bayley, J., in Wat- 
 son's Case, 32 How. St. Tr. 7. See, 
 also, Brandreth's Case, 32 How. St. 
 Tr. 854, 857 ; R. v. Salter, 5 Esp. 
 125 ; R. 1'. Cope, 1 Stark. 144. 
 
 » Hardy's Case, 24 How St. Tr. 
 704. What the effect of such evi- 
 dence will be, must depend upon a 
 variety of circumstances ; as, 
 whether the i^risoner was attending 
 to the conversation ; whether he ap- 
 proved or disapproved. By Eykk, C. 
 J., ib.; Cuyler v. McCartney, 33 
 Barb. 165, 171. 
 
 ' The People v. Pari.sh, 4 Denio, 
 153 ; Williamson v. The Common- 
 wealth. 4 Gratt. (Va.) 547. 
 
 * State V. Simmons, 4 Strobh. (S. 
 C.) 266 ; Regina v. Mears, 1 Eng. 
 Law & Eq. .581 ; State v. Ripley, 31 
 Me. 386. 
 
 » Glory V. State, 13 Ark. 236. 
 It makes no difference that the 
 person who utters the declaration 
 is not a party to the suit which 
 
 draws the conspiracy in question, 
 Claylor v. Anthony, 6 Rand. (Va.) 
 285. On an information in nature 
 of a quo loarranto, to avoid the 
 election of usurping vestrymen in a 
 religious corporation, whose elec- 
 tion was objected to as being pro- 
 cured by pi-econcerted tumult and 
 violence, vanous conversations in 
 respect to the election among the 
 corporators, at their meeting, and at 
 meetings of certain members of the 
 congregation, and at meetings of 
 certain voluntary societies, were 
 received in evidence in })ehalf of 
 the commonwealth. And held, that 
 it was properly put to the jury 
 whether what they had heard was 
 relevant, and ought to have any 
 influence as being connected with 
 the election. Com. v. Woolser, 3 S. 
 & R. (Penn.) 29, 31. In case of a 
 fi-audulent combination to extort 
 money by several i)ersons, which 
 probably continued on foot down to
 
 SEC. 156.] RES GEST^. 477 
 
 Where a sheriff is sued for taking property, and he de 
 fends on the ground that plaintiff's title is derived through 
 a fraudulent assignment, the declarations of third persons 
 not parties to the action cannot be proved without showing 
 that they and the plaintiff acted on a common purpose to 
 defraud creditors!' 
 
 The declarations of joint wrongdoers, when received to 
 affect others, are not always confined to the narrow ground 
 of the i-es gestce. In most instances, the common object 
 being first proved, and the wrong done, admissions by one 
 made long after the injury is complete, may be received to 
 affect the others. 
 
 In an early English case,^ the prisoner was indicted for 
 treason, and was charged with conspiring, together with a 
 person of the name of Jackson, to collect and communicate 
 intelligence to the French government. After evidence had 
 been given of a conspiracy for this purpose, a letter written 
 by Jackson, containing treasonable information, and which 
 had been intercepted, was received in evidence against the 
 prisoner. 
 
 Upon the same principle, in another case,^ a letter written 
 by the chairman of a meeting in London to a delegate sent 
 by that meeting into Scotland, was received in evidence ; 
 the letter containing encouragement to that delegate to pro- 
 
 the time of the trial, it was held about the time of the auction, were 
 that the declarations of one, being held admissible against the defend- 
 part of the res geslxB, were admissi- ants, as pai't of the res gestae. Crary 
 ble to affect the others. Apthorpe v. Sprague, 12 Wend. (N. Y.) 41. 
 V. Comstock, 2 Paige Ch. (N. Y.) See Willies v. Farley, 3 C. & P., 
 482, 488. The plaintiff, C, holding 395, where a vendor in possession 
 a bill of sale of personal property, after sale may, by his declarations, 
 subject to the levy of an execution, affect his vendee, on the ground of 
 the debtors in the execution, who the res gestae. 
 
 had given the bill of sale to the » Jones v. Hurlburt, 39 Barb. (N. 
 
 plaintiff, conspired with M. to pro- Y.) 403. 
 cure a sheriff's sale, in the plaintiffs ^ R. v. Stone, 6 T. R. 527. 
 absence, so as to prevent his redeem- ' Hardy's Case, 24 How. St. Tr. 
 
 ing the property ; and it was sold at 704. The scruple of Eyre, C. J., 
 
 auction to M. In trover by C. in conseqiience of the letter never 
 
 against certain persons who claimed having reached its destination, does 
 
 title through M., the declarations of not appear to have any weight, 
 one of the debtors and M., made
 
 478 EVIDENCE. [chap. XIV. 
 
 cccd in the cause in which he had been engaged by the 
 direction of the meeting in London : and that meeting Ijeing 
 composed, amongst others, of the prisoner, the writer of the 
 letter, and the person to whom it was addressed. In the 
 same case, evidence was aihnitted to prove that Thelwell 
 (who was a member of the Corresponding Society wath the 
 prisoner) had l)r()nght a i)aper with him to a printer, and 
 desired him to print it ; the paper being considered as evi- 
 dence to prove a circumstance in the conspiracy. On the 
 same trial numerous letters were read which had been writ- 
 ten by co-conspirators in furtherance of the common object, 
 and tracts and other writings distributed by them were re- 
 ceived in evidence ; being in the nature of verbal acts, for 
 which the prisoner, though not personally present when they 
 were spoken, written or pubhshed, was nevertheless respon- 
 sil)le. In like manner, consultations in furtherance of a con- 
 spiracy are receivable in evidence, as also letters or drafts of 
 answers to letters, and other papers found in the possession 
 of co-conspirators, and which the jury may not unreasonably 
 conclude wore written in prosecution of a common purpose 
 to which the [)risoner was a party.^ In a later case,^ the 
 draft of a letter intended to have been sent by Hardy, as 
 secretary to the Corresponding Society, in answer to another 
 letter, and which was found in Hardy's possession, was ad- 
 mitted. And in the same trial, another letter was admitted, 
 which was written by the secretary of a society at Sheffield, 
 and was addressed to the prisoner, but was found in Thel- 
 wall's possession. For the same reason, declarations or 
 writings explanatory of the nature of a common object, in 
 which the prisoner is engaged, together with others, are 
 receivable in evidence ; provided they accompany acts dcme 
 in the prosecution of such an object, arising naturally out of 
 these acts, and not being in the nature of a subsequent state- 
 ment or confession of them. Upon this i)rinciple the ex- 
 pressions of the mob in the Sacheverell riots, that they 
 
 ' Lord Ruasell's Case, 9 How. St. respecting letters found in the pos- 
 
 Tr. 578. session of co-conspirators in Wat- 
 
 * Home Tooke's Case, 25 How. son's Case, infra. 
 Bt. Tr. 220. And see the point
 
 SEC. 157.] RES GEST^. 479 
 
 designed to pull down the meeting-houses, were admitted in 
 evidence.^ 
 
 Sec. 157. statements of Conspirators, when not Fart of the Res Gestae. 
 
 But where words or writings are not acts in themselves, 
 nor part of the res gestm, but a mere relation or narrative 
 of some part of the transaction, or as to the share which 
 other persons have had in the execution of a common design, 
 the evidence is not within the principle above mentioned ; it 
 altogether depends on the credit of the narrator, who is not 
 before the court, and therefore it cannot -be received. Thus, 
 on the trial of Hardy for high treason, ^ a question arose as 
 to the admissibility of a letter written by Thelwell, and sent 
 to a third person not connected with the conspiracy, contaiu- 
 ins: seditious sono;s, which the letter stated to have been com- 
 posed and sung at the anniversary meeting of the London 
 Corresponding Society, of which society the prisoner and 
 the writer were proved to be members. The argument in 
 favor of the admission of the evidence was, that the letter 
 was an act done in furtherance of the conspiracy ; that the 
 letter contained language of incitement, not merely a nar- 
 rative or confession by a stranger, and that in such case 
 ''scribere est agereJ' The objection was, that the letter con- 
 tained merely a relation by the writer, that certain songs 
 had been sung, which could not be evidence against the 
 prisoner. The majority of the court decided against the 
 admissibility of the letter. " Correspondence," said Eyre, 
 C. J., " very often makes a part of the transaction, and in 
 that case the correspondence of one who is a party in a con- 
 spiracy would undoubtedly be evidence, that is, a correspond- 
 ence in furtherance of the plot ; but a correspondence of a 
 private nature, a mere relation of what had been done, ap- 
 pears a different thing." 
 
 Sec. 158. Writings in Possession of Conspirators Before or After Ap- 
 prehension. 
 It is ill consequence of the distinction between writings or 
 declarations which are a part of the transaction, and such as 
 
 » 15 How. St. Tr. 552. * Hardy's Case, 24 How. St. Tr. 
 
 452, 475. See 32 How. St. Tr. 351.
 
 4i^(J EVIDKNCE. [CIIAP. XIV. 
 
 ;uv ill the iKitiiiv of subsequent statements, but not part of 
 the /T.v (ji'sUe, that the mhnissibility of writings often depends 
 on the time when they are proved to have been in the pos- 
 session of co-eonspirators ; wliether it was l)ef()re or after 
 tlie time of the prisoner's apprehension. Thus, on the trial 
 ot Watson,' some pai)ers, containing a variety of plans and 
 lists of names, whieh had been found in the house of a co- 
 c'onsi)irator. and which had a reference to the design of the 
 consi)iracy, and in furtherance of the alleged plot, were held 
 to be admissible evidence against the prisoner. All the 
 judges were of opinion that these papers ought to be re- 
 ceived ; inasmuch as there Avas in the ciise strong presump- 
 tive evidence that they were in the house of the coconspira- 
 tor before the prisoner's apprehension; for the room in 
 which th(! papers were found had been locked up by one of 
 the cons[)irat()rs. And the judges distinguished the point in 
 this case from a point cited from Hardy's Case, where the 
 l)apers were found, after the prisoner's apprehension, in the 
 possession of persons who, possibly, might not have obtained 
 the papers until afterwards. 
 
 The principles upon which evidence of the description 
 above mentioned is admitted, are equally applicable to the 
 trial of civil injuries, in the commission of which different 
 defendants have concurred.^ But evidence of this descrip- 
 tion is inadmissible in actions where no common motives or 
 object can be imputed, as in actions for negligence ; ^ at least 
 it onijht not to affect co-defendants where such a consequence 
 can be avoided. And the principle upon wdiich the declara- 
 tions of associates are admitted in civil actions not less than 
 in proceedings upon criminal charges, only applies where 
 such declarations are strictly a part of the transaction in 
 question. 
 
 ' Watson'.s Case, 2 Stark. 140. 432 ; North v. Miles, 1 Camp. 389 ; 
 
 « PoweU V. Hodgetts, 2 C. & P. Bowaher v. Cally, 1 Camp. 391. 
 
 » Daniels v. Potter, M. & M. 501.
 
 CHAPTER XV. 
 
 ADMISSIONS. 
 
 SECTION. 
 
 159. Admissions of Parties to Suit. 
 
 160. The whole Admission must be taken. 
 
 161. Weight to be given to Admissions. 
 
 162. When and How a Party may Discredit his Admissions. 
 
 163. Parties to Negotiable Paper. 
 
 164. Admissions by an Indorser. 
 
 165. Admissions by former Owner or Holder. 
 
 166. Admissions by Persons acting together Illegally. 
 
 167. Admissions by Co-i^laini iffs, Co-defendants, etc. 
 
 168. Admissions by one of two or more Persons united in Interest. 
 
 169. Admissions by Husband and Wife. 
 
 170. Admissions by Attorneys. 
 
 171. Declarations and Admissions of Agents. 
 
 172. Knowledge of, or Notice to, Agent affects Principal, when. 
 
 173. Admissions of Guai-dians and Nominal Parties. 
 
 174. Admissions by Privies. 
 
 175. Rule api^licable in Case of Personalty. 
 
 176. Principal and Surety. 
 
 177. Offers of Compromise. 
 
 178. How Admissions should be weighed. 
 
 179. Admissions implied fi-om Conduct. 
 
 180. Admissions from Acquiescence. 
 
 181. Conclusive Admissions. 
 
 182. Effect of Plea of General Issue, etc. 
 
 183. Omitting to Traverse. 
 
 184. New Assignment. 
 
 185. Admissions acted upon by others. 
 
 186. Admissions under Oath, in Deeds, etc. 
 
 187. Admissions by Corporate Officers. 
 
 Sec. 159. Admissions of Parties to a Suit. 
 
 It is a well settled rule of evidence that the admissions of a 
 party are admissible as evidence against him, but not in his 
 favor/ except when they form apart of the res gestae, or where, 
 
 * JacoT) V. Shorey, 46 N. H. 100 ; missible to show that he never ac- 
 
 Magee v. Raiguel, 64 Penn. St. 110. quiesced in another line. Evartsv. 
 
 The declarations of a party in inter- Young, 52 Vt. 329 ; Martin v. Wil- 
 
 est are not admissible to show the liams, 18 Ala. 190 ; Kennedy v. 
 
 location of a disputed line, although Meedor, 1 S. & P. (Ala.) 220 ; Gor- 
 
 he has since died, but they are ad- don v. Clapp, 38 Ala. 357 ; Hazen v. 
 
 31
 
 482 EVIDENCE. [CIIAP. XV. 
 
 altlioiigh iigainst his interest, they iieveitiK'lc.ss niuke tor hiiu 
 upon another eolhiteral i.s.sue. As where he has indorsed a 
 payment npon a note or other obligation, in those States where 
 the del )t may he rcm-wid liy [)art pa^'nient, his indorsement 
 of a i)aynK'nt theieon is admissil)le in his iavor to repel the 
 statuti- of limitations, provided it was made at sneh a time 
 and under sneh circumstances as to repel all idea of it having 
 lu-en made lor the purpose of avoiding the statute.' But as 
 a rule, except where they go to estal)lish intention,"- such ad- 
 missions are only admissible against the party making them.' 
 
 Heni-y, 6 Ark. 86 ; Rice v. Cunning- 
 ham, 29 Cal. 492; -North Stonington 
 V. Stonington, 31 Conn. 412 ; Heard 
 V. McKoe, 2G Ga. 332 ; Scobey v. 
 Armington, 5 Iml. 'AA ; Murray v. 
 Cone, 26 Iowa, 276 ; Wright r. Had- 
 dock, 7 Dana (Ky.), 253; Talbot v. 
 Talbot, 2 J. J. Mar. (Ky.) 3 ; Tiijper 
 V. Commonwealth, 1 Mete. (Ky.) 6 ; 
 Tucker v. Hood, 2 Bush (Ky.), 85; 
 Handley v. Call, 30 Me. 8 ; Hogan 
 V. Hendry, 18 Md. 177 ; Carter v. 
 Gregory, 8 Pick. (Ma.ss.) lO.'} ; Jacob.s 
 V. Whitconib, 10 Cush. (Mass.) 255 ; 
 Nutting V. Page, 4 Gi-ay (Mass.), 
 581 ; Emerson i\ Lowell Gas Light 
 Co., 6 Allen (Mass.), 146 ; Hogsetti^. 
 Ellis, 17 Mich. 351 ; MiUiken v. 
 Greer, 5 Mo. 489 ; Darrett v. Don- 
 nelly, 38 Mo. 492 ; Moore v. San- 
 boum, 42 Mo. 490 ; Wiggin v. Plu- 
 rner, 31 N. H. (11 Fost.) 251 ; Judd 
 r. Brentwood, 46 N. H. 430 ; Smith 
 r. KciT, 1 Barb. (N. Y.) 155; State 
 V. .Jeffei-son, 6 Ired. (N. C.) L. 305 ; 
 Whito V. Green, 5 .Jones (N. C.) L. 
 47 ; Burridge v. Geauga Bank, 
 Wright (Uhio), 688; Graham v. 
 Hollinger, 46Penn. St. 55 ; Williams 
 T. English, 64 Ga. .546. 
 
 ' Gibson v. Peebles, 2 McCord (S. 
 C.).418. 
 
 ' Young V. Power. 41 Mi.ss. 197 ; 
 Bakor v. Kelly, 41 id. 606. 
 
 ' Brown v. BroNvn, 5 Ala. .508; 
 Blauni V. Beat, 5 id. 357 ; James v 
 
 Stockey, 1 Wa.sh. (U. S. C. C.) 330 ; 
 Freeborn v. Smith, 2 Wall. (U. S.) 
 160; Buswell v. Davis, 10 N. H. 
 413. Declarations ol" a third i)arty 
 not at the time in possession of thi; 
 property, unaccompanied l)y any 
 corresponding act; are inadmissible. 
 O'Brien v. Hilburn, 22 Tex. 616. 
 Evidence of the declarations of a 
 person who is competent to testify 
 in the case is not admissible. 
 Bank of Alabama v. M'Dade, 4 Port. 
 (Ala.) 2.52 ; Field v. Suice, 7 Ark. 
 269 ; Williams i\ Kolsey, 6 Ga. 365 ; 
 Compton V. Fleming, 8 Blackf. (Ind.) 
 153 ; Flynn i\ Merchants' Ins. Co., 
 17 La. Ann. 135 ; Bi-own v. Mooei-s, 
 6 Gray (Mass.), 451 ; Fanny u State, 
 6 Mo. 121 ; Langsdorf v. Field, 86 
 Mo. 440 ; Howell v. Howell, 37 Mo. 
 124.; Alexanders. Mahon, 11 Johns. 
 (N. Y.) 185 ; Woodward v. Paine, 
 15 id. 493 ; Rowland v. Rowland, 2 
 Ired. (N. C.) L. 61 ; Pei-sons v. Bur- 
 dick, () Wis. 63. And the fact that 
 a person is <lead at the time of a 
 tnal, who if alive might be a wit- 
 ness, Nvill not make his writings e\'i- 
 dence any more than his unsworn 
 declaj-ations would be. Ci-ump v. 
 Starke, 23 Ark. 131. Nor is the 
 fact that a witness was taken sick 
 the day pre\nous to the tnal a cir- 
 cumstance sufficient to warrant the 
 admi.ssion of his declarations on the 
 ground of necessity. Gaither v.
 
 SEC. 159.] ADMISSIONS. 483 
 
 If, however, they accompanied the transaction in dispute 
 
 Martin, 3 Md. 146. Nor is it a 
 good reason for admitting- in evi- 
 <ience the declarations of a third 
 person, not a party to the suit, that 
 such person cannot he examined as 
 a witness. Churchill v. Smith, 16 
 Vt. 560. The declarations of a per- 
 son exercising authority that he 
 possesses it can never be received 
 as evi<ience of the fact of his au- 
 thoi"ity. James v. Stookey, 1 Wash. 
 330. Nor can parties give in evi- 
 dence private conversations or cor- 
 respondence with each other to 
 i-ebut evidence of partnership with 
 a third person. Freeborn v. Smith, 
 2 Wall. (U. S.) 160. In detinue, after 
 a demand and refusal to deliver the 
 property has been proved by the 
 plaintiff, the defendant may show 
 that his refusal was qualified, but 
 cannot be allov/ed to prove his own 
 declarations at the time relative to 
 his title to the property. Brown v. 
 Bro\vn, 5 Ala. 508. A party's 
 answer to interrogatories, under the 
 statute in aid of discoveries in com- 
 mon-law suits, if his adversary 
 declines to read them, cannot be 
 considei-ed by the court as evidence 
 for him for any purpose. Wells v. 
 Bransford, 28 Ala. 200. Nor are 
 the declarations of the defendant in 
 executions admissible in favor of a 
 claimant of the pi-operty levied on, 
 nor in his own behalf, unless they 
 form a part of a conversation proven 
 by the plaintiff in execution. They 
 are admissible in favor of the plain- 
 tiff in execution. Brown r. Upton, 
 12 Ga. 505. In a Georgia case, two 
 drovei's came to an inn together; 
 one of them told the negro hostler 
 not to tie the horses ; he did, how- 
 ever, tie them, and the horse of the 
 other drover was straiigled. In an 
 action therefor against the inn- 
 keeper, the above direction was ad- 
 
 mitted in evidence. Jones v. Hill, 
 26 Ga. 194. Gestures ai-e treated as 
 acted language, and are no more ad- 
 missible than declarations in favor 
 of the party making them. Bowie 
 V. Maddox, 29 Ga. 285. In an action 
 against an officer foi- an escape on 
 inesne process, the admissions of the 
 defendant in the original suit may 
 be proved to show a cause of action 
 in such suit. And it is not neces- 
 sary that such admissions should 
 have been made before the escape. 
 Hart ■?». Stevenson, 25 Conn. 499. 
 But where an action is brought by 
 a minor, through his father as next 
 friend, the father's declarations are 
 not admissible. Hammei- v. Pierce, 
 5 Harr. (Del.) 304. As a general 
 rule, the admissions or declarations 
 of a person 7iot a party to the record 
 are not admissible in evidence even 
 in the absence of better testimony 
 Ibbitson v. Brown, 5 Iowa, 532; 
 Chastain v. Robinson, 30 Ga. 55 ; 
 Berry v. Waring, 2 Har. & J. (Md.) 
 103 ; Lyman v. Gipson, 18 Pick. 
 (Mass. ) 422 ; Wesson v. Washburn 
 Iron Co., 13 Allen (Mass.), 95 ; Bain 
 V. Clark, 39 Mo. 252 ; Forsaith v. 
 Stickney, 16 N. H. 575 ; Jones v. 
 Doe, 2 111. 276 ; McCormick v. Robb, 
 24 Penn. St. 44 ; Kottwitz v. Bagby, 
 16 Tex. 656. Thus the declai-ations 
 of an absent subscribing witness to 
 a deed are inadmissible to show 
 that it was fraudulently obtained. 
 Shackelford v. Purket, 1 A. K. 
 Marsh. (Ky.) 425. And the rule ad- 
 mitting evidence of the declarations 
 of a third person, made in the pres- 
 ence of a party and affecting his 
 interest, is not to be extended to in- 
 clude declai-ations made befoi-e 
 such interest was acquired or known 
 by the jiarty to exist. Ware v. 
 Ware, 8 Me. 42. Declarations of 
 one who is neither a party to the
 
 4M 
 
 EVIDENCE. 
 
 [("HAP. XV. 
 
 ami were a part of tlic res r/eske,^ or Avcrc made in tlic prcs- 
 oiico of tho other party, and were not eontradicted by him,* 
 they are lonipetent evidcnec. 
 
 But whether in writing or by parol, they cannot as a rule 
 be used us evidence in his favor. Even an indorsement of 
 l)art payment on u promissory note is not of itself, and as a 
 matlcrof ronrsc, admissible to take the note out <if liie Statute 
 of Limitations.-' So of a credit on an account book, tho 
 credit bein«' small in proportion to the account, dated after 
 
 record nor a witness are incompe- Penn. St. 455. So, the declarations 
 
 tent for the pui-pose of .'showing of a deceased person, between 
 
 that he is the real party in interest whom and the pei"son sought to be 
 
 to the action. Ryan v. Merriam, 4 affected by them there is no privity, 
 
 Allen (Mass.). 77. Ei-ideiicc ob- are not admissible imless they were 
 
 tainetl by nif^aiis of a search war- against his pecuniary interest exist- 
 
 rant is not to be rejected either upon ing at the time of the facts admit- 
 
 the ground that it is in the nature ted, and unless the latter were such 
 
 of admissions made under duress, that he may be presumed to have 
 
 or that it is e\idence which the de- had accurate knowledge of thcmi at 
 
 fendant has Ijeen compelled to fur- the time. J3ird v. Ilueston, 10 Ohio 
 
 nish against himself, or on the St 418. The declaration of one 
 
 ground that the evidence has been who cannot be sworn as a witness 
 
 unfairly or illegally obtained, even because he is interested or infamous, 
 
 if it appears that the search war- ch,nnot be received in evidence. 
 
 i-ant was illegally issued. State v. 
 Flynn, 30 N H. (34. The ruleisin- 
 flexiV)le that on(! man cannot be 
 bound by the admissions of another 
 unless such a relation is jyrevionsly, 
 and by other evidence, pi-oved to exist 
 between them as will enable one to in- 
 volve the other in liabilities. Faulk- 
 ner V. Whitaker, 15 N. J. L. 438 ; 
 KilTmiTi r. Ritchio, 2 Cal. 145 ; At- 
 w<dl V. Miller, 11 Md. 348; Com- 
 monwealth V. Oberle, 3 S. & R. 
 (Penn ) 9 ; Hill v. Myers, 43 Penn. 
 St. 170. The declarations of parties 
 at the time of a transaction are 
 usually received as evidence as 
 l^art of the res gestCB. But the dec- 
 larations of one of the parties at 
 another time, and particvdarly in 
 the absence of the other, ai-e inad- 
 missible. Ogden-M. Peters, 15 Barb. 
 (N. Y.) 560 ; Deveries v. Phillips, 
 63 N. C. 207 ; StauflFer v. Young, 39 
 
 Nettles V. Harrison, 2 M'Cord (S. 
 C), 230. 
 
 ■ Peppinger v. Law, G. N. .1. L. 
 384; Allen v. Duncan, 11 Pick. 
 (Mass.) 308 ; Sayre v. Durwood, 35 
 Ala. 247 ; B.ayden v. Moore. 11 Pick. 
 (Mass.) 362; Warden v. Powers, 37 
 Vt. 619; Holbrook v. Muri-ay, 20 
 Vt. 525. 
 
 " Green v. Harris, 3 Ired. (N. C.) 
 L. 310 ; Wilson v. Pope, 37 Barb. 
 (N. Y.) 321 , Johnson v. Brockway, 
 23 Ark. 382 ; Archer v. De Duff, 5 
 Barb. (N. Y.) 147 ; Coi-ser 7). Paul, 
 41 N. H 24; Bailey v. Woods, 18 
 N. H. 28 ; Alston v. Granthum, 26 
 Ga. 374 ; Nusbaum v. Thompson, 
 11 Md. 557 ; Bradford v. Hagerthy, 
 11 Ala. 698. 
 
 => Whitney v. Bigelow. 4 Pick. 
 (Mass.) 110; Roseboom v. Billing- 
 ton, 17 Johns. (N. Y.) 182.
 
 SEC. 159.] ADMISSIONS. 485 
 
 six years have run, and apparently made with a view to 
 elude the statute.' 
 
 It was said in an early New York case- that the indorse- 
 ment would have been admissible had it been shown to have 
 been made at a time when it was against the interest of the 
 party who made it. But this principle of receiving admis- 
 sions is by no means iniiversal, nor is it a sufficient reason 
 that the admission is made before any controversy has arisen. 
 Thus, in an action for goods sold, the defendant had been 
 charged ns trustee in respect to the debt in question as due 
 to a third person, and had admitted this to be so, and had 
 judgment against him. The debt was in truth due to the 
 plaintift', thqugh the question was a dou1)tful one upon the facts. 
 It was held, that the defendant's admis^sions in the former 
 suit were not evidence for him.-^ In Minnesota, by statute, 
 an indorsement of a payment made upon a note by the payee, 
 at a time when the indorsement was against his interest, is 
 made admissible as evidence of the fact of payment.'* But 
 in New York an entry in the party's books, though at the time 
 agaiast him, is not afterwards evidence for him. Thus, in 
 another case, on a note payable to the plaintiff's testator, 
 against five persons as makers, one question was, whether two 
 were not principals, and the other three sureties. To show this, 
 the book of the two crediting the note as their own to the tes- 
 tator at its date was offered by the defendants. Though the 
 entry was against the interest of the two at the time, yet it 
 was held that it could not be used in their favor, or in favor 
 of their co-defendants.^ So, in an action on a note, dated 
 14th April, 1828, commenced by attaching the goods of 
 the maker, Gregory, on the same day. Peck, a su])sequent 
 attaching creditor, was allowed to defend on the alleged 
 ground that the plaintiff's note was a fraud on creditors. 
 A part of the consideration of the plaintifi''s note was two 
 orders drawn by Gregory on and accepted by the })laintiff, 
 in favor of two other creditors of Gregory, on the same day. 
 
 ' Taylor's Ex'rs v. M'Donald, 2 * Young v. Perkins, 29 Minn. 173. 
 
 M'Cord (S. C), 418. * Sdiermerhorn v. Schermerhorn 
 
 * Roseboom v. Billing-ton, aide. and others, 1 "Wend. (N. Y.) 119. 
 3 Wise V. Hilton, 4 Me. 425.
 
 48l) EVIDENCE. jCIIAr. XV. 
 
 To >1k)\v tluit the orders were accepted uutcrior to the coiii- 
 mciiLCiiR'nl of the suit, the phiiiititi" oU'ered in evidence his 
 own declanilion to 13., ;i witness, nuide on the same da}', but 
 before the atlarlnnent. thai hv iiad agreed to [)ay the debts 
 secured by the orders. They were hekl inadmissible. The 
 court, by Pakkek, C. J., said, "The declarations of a party 
 ill his own favor, l)y the general rule, are inadinissil)le. 
 There are cases of declarations or entries, o^x-rating in favor 
 of the party making them, which are admissible ; but in all 
 instances they relate to or accompany some act, and there- 
 fore arc a part of the res gestae. The declarations excluded 
 in this case were not of that character, but mere naked asser- 
 tions of a fact, which do not come Avithin any of the excep- 
 tions to the general rule. It is said that the declaration so 
 made is a fact. That is true ; but the fact is also a declara- 
 tion only, made by a party to support his own interest. 
 Now it is true that, at the time of making the declaration, 
 it probably had no reference to any controversy. Yet, if it 
 is admitted that such declarations arc good evidence, we shall 
 soon tind cases of declarations and assertions of a f:ict as 
 having happened, with a view to support what may be after- 
 wards done, when it is too late 1o have its etFect, and when 
 it may become necessary to antedate, if we may use the ex- 
 pressi(jn, the fact in controversy." ' In Massachusetts, the 
 return and acts of a ministerial officer are denied as evidence 
 in his favor. Thus, in trespass by the plaintiff', a deputy 
 sheriff", he proved that ho had attached certain ])roperty of 
 S., which was afterwards removed l)y the defendant. The 
 defendant, another deputy, offered in evidence a writ and his 
 own return upon it, showing that he had attached the same 
 property the day before, and also, that on the day before^ 
 he was seen at work within view of the property, and tokl 
 a witness he had attached it. It was held that neither the 
 return nor declarations were admissible, not being a part of 
 the res gestoi.^ 
 
 ' Carter r. Greg-oiy, 8 Pick. (Mass.) 397, 398. But see Cornell 
 (Ma.ss.) 16.5, 168, 160. v. Cook, 7 Cow. (N. Y.) 310, 313. 
 
 ' Mevnll V. Sawyer, 8 Pick.
 
 SEC. 159.] ADMISSIONS. 487 
 
 Letters written by a party arc not evidence for him.' 
 Thus, in ejectment by the proprietor of Pennsylvania, tlie 
 defendant showed a deed to himself The plaintiff offered 
 a letter from William Penn, the proprietor, to show that the 
 grant was on a condition not performed. It was rejected on 
 the irronnd that a man cannot create evidence for himself.^ 
 
 If a party's declarations or admissions which, when taken 
 in one way, are evidence against himself, are not to be received 
 for him ; if his letters in his own favor are to be excluded, 
 it follows of course that other oral or written declarations, 
 either indifferent at the time or favorable to his own interest, 
 are inadmissible. Accordingly, in an action against A, & B., 
 as partners, on a contract executed in the partnership name, 
 A. suffered a default, and B. pleaded the general issue. It 
 was held that letters written l)y A. in the partnership name 
 could not be read in evidence by B., a partner with A.^ 
 
 The registry of a vessel procured by a i)arty is no evidence 
 for him, though it may be against liini.^ A survej^, though 
 ancient, made hy direction of the owner of the land, for his 
 own convenience, is not admissible evidence for him or those 
 claiming under him.^ On a question whether the plaintiff, 
 to whom cotton was consigned as a factor of the defendant, 
 had sold it in a foreign market, it was held that the plaintiff's 
 letters, averring and inclosing an account of sales of the cot- 
 ton, among other articles, though offered merely with the 
 view of fixing the defendant with notice and subsequent ac- 
 quiescence in the correctness of the accounts, and so to infer 
 the sales, were inadmissible.^ In an action against alleged 
 partners, the declarations of the defendants, made subsequent 
 to the commencement of the alleged partnership business, 
 arc not admissible for them to limit its nature and extent, 
 as to show it an agency the one for the other ; though an 
 ao-reement between them, at or before its commencement, 
 
 ' Fowle u Stevenson, IJohn. Cas. * Ligion v. Orleans Nav. Co., 7 
 
 (N. Y.) 110 ; Champlin v. Tilley, 3 La. An. 682. 
 
 Day (Conn.), 303, 306. * Jones v. Huggins, 1 Dev. (N. 
 
 ^ Proprietary's Lessee v. Ralston, C.) 223. 
 
 1 Dall. (U. S.) 18. ' Anthoine v. Colt, 2 Hall (N. Y.), 
 
 ^ Champlin v. Tilley, 3 Day 40. 
 (Conn.), 303, 306.
 
 488 EVIDENCE. [CIIAI". XV. 
 
 woukl be' A written coiniuunifatioii, inadc by the tleleiid- 
 :tut to tlie plaiiitiir, in lo-spcct to the claim of the hitter, vva^ 
 held inadmissible in evidence for the defendant.^ In an 
 action for fraudulently passing the bills of a broken bank, 
 the plaintiff was denied liberty to prove that he showed the 
 l)ills to the witness and stated that he had them from the de- 
 fendant — even to show how the witness's attention was 
 drawn to the bills, and thus stiengthen the inlerence that he 
 had correctl}' identified them with bills which he had before 
 seen in the hands of the defendant.^ An inventory made 
 and returned l)y an administrator, after an action connneneed 
 bv him for the recovery of the property inventoried, is not 
 evidcMKC for him.^ The admissions of a debtor against the 
 garnishee in a foreign attachment are not receivable ; for 
 they go to throw the claim from the delator upon another.^ 
 Even an officer's return upon a process is not admissibjc 
 in his favor to prove any fact stated therein exce[)t such as 
 are required to be stated. Thus, in an action against a sheriff 
 for not returning an execution within thirty days, his return, 
 indorsed thereon, that he omitted to do so by reason of sick- 
 ness, is not achnissible to prove the fact ; for it is no part 
 of his office to make such a return,*' Therefore it is no 
 more than a written declaration l^y a private [)ersun. It is 
 the same, although the declarant is dead, and his declarations 
 are offered for his estate. Thus, in trover for bonds of 
 the intestate, the defendant, the intestate's son, insisted the 
 intestate gave them to him. The intestate's declarations 
 tending to negative this, made in the defendant's absence, 
 were held inadmissible.''^ A corporation is in this respect 
 on the same footing with natural persons. Thus the North 
 Carolina State Bank, being a mere private corporation, its 
 books of accounts of bank dealing, in a suit between the 
 
 ' Mitchell V. Roulstone, 2 Hall ' Enos v. Tuttle, 3 Conn. 247. 
 
 (N. Y.). 351. ' Bruce v. Dyall, 5 Mon. (Ky.) 
 
 " Birkbeck v. Burrows, 2 Hall 125. 
 
 (N. Y.), 51. '' Romig v. Romig-, 2 Rawle 
 
 ' Watson V. Osborne, 8 Conn. 363. (Penn.), 241 ; Scull v. "Wallace, 15 S. 
 
 * Allender v. Riston, 2 G. & J. & R. (Penn.) 231. 
 (M<1.) 86.
 
 SEC. 159.] ADMISSIONS. 489 
 
 bank and a third person, were held not admissible as evi- 
 dence for the former. 1 
 
 So the statements of a party's agent are not admissible 
 for him, unless a part of the res gestm. Thus the letters of 
 an agent giving his principal an account of what had taken 
 place in respect to the matter of his agency were held to be 
 inadmissible for his principal, even after the agent's death.^ 
 
 The admission of a party's declaration in his own iavor, if 
 objected to, is fatal on error, although the court below directs 
 the jury to disregard it.^ Nor can the defendant prove a 
 conversation between himself and the plaintiff's agent, to 
 show admissions by the latter after the business of the 
 agency has been closed, Ijccause the agent's declarations 
 bind his principal only when they are a part of the res gestae, 
 and his own declarations could only be admissiljle as form- 
 ing a part of the conversation in which the plaintiff" par- 
 ticipated.'* 
 
 There are, however, some exceptions to the rule that a 
 party's declarations or admissions shall not be received us 
 evidence for him. These exceptions arise in general when 
 they are connected with some circumstance giving the evi- 
 dence a force beyond what it can have as a mere naked as- 
 sertion. Accordingly, a consta1)le's return is evidence for 
 him in an action for taking the goods away under pretense 
 of a previous levy.^ And there seems no good reason why 
 this should not be so. Indorsing a return is part of his office. 
 It is an act, not only a part of the res gestae, but the res gestae 
 
 ^ State Bank of N. C. v. M'Neil, Ins. Co., Sid. 147, evidence of con- 
 
 1 Hawks (N. C), 86. versations between the agent of the 
 
 ^ Norton n. Smith, 4 Mon. (Ky.) defendants and one West was ad- 
 
 314. niitted after it had been proved that 
 
 * Tattle V. Hunt, 2 Cow. (N. Y.) the ag-ent had been referred by the 
 
 436 ; Penfield v. Carpenter, 13 John, insured to West as the person who 
 
 (N. Y.) 350; Fisher v. Bailey, 1 would settle the whole matter. But 
 
 Ashm. (Penn.) 209. the g-eneral rule stands firm, that 
 
 ^ Budlong V. Van Nostrand, 24 the declarations of a party cannot 
 
 Barb. (N. Y.) 25. In Meserole v. be received in his own favor. Isles 
 
 Archer, 3 Bosw. (N. Y.) 376, the v. Tucker, 5 Duer (N. Y.), 393; 
 
 court held it admissible to show the Ei-ben v. Lorillard, 19 N. Y. 299. 
 agent's declaration to her principal ^ Cornell v. Cook, 7 Cow. (N. Y.) 
 
 in reference to an act done and the 310, 313. 
 reply ; and in Bedell v. The Com.
 
 490 EVIDENCE. [CHAr. XV. 
 
 itself. On what other principlo is it that tlic recoitl of a 
 justice, tlriiwii up fur the very purpose, long after the con- 
 viction, will protect him against an action ? ' But to make a 
 return evidence for the officer, it must be strictly within his 
 official duty ; lor where he indorsed that he had omitted to 
 return within the recpiired time by reason of sickness, this 
 was held out of h\^ duty, and therefore not admissible for 
 him.2 
 
 A certificate of a justice of a judgment, execution or other 
 proceeding in a cause before him, is evidence for himself. 
 It may be made out after the expiration of his office.^ And 
 in ail action by an officer for property levied on by him, his 
 own indorsement on the execution of the property levied on 
 is evidence to identify the property.^ 
 
 An indorsement of part pa^ mcnt upon a promissory note, 
 everything al)out it appearing fair, is admissible as evidence 
 to the jury to take it out of the Statute of Limitations, and 
 will control, unless the defendant impeaches it in some way.^ 
 As where the note was for four hundred dollars, and the 
 indorsement, bearing date two years after the date of the 
 note, was of three hundred and fifty dollars, leaving a 
 balance of only fifty dollars. Or where it. is [)roved that 
 the indorsement was in truth made when it was ao:ainst the 
 interest of the party who made it.^ In such case it will be 
 received to reljut the presumption of payment arising from 
 the lapse of time. But this is not the rule where the statute 
 requires the promise to be in writing in order to remove the 
 statute bar, or requires the evidence of payment to be in 
 writing under the hand of the party to be aficcted thereby. 
 
 Where the party's declarations are a part of the res 
 f/estce, they are evidence for hiiiiJ Thus, although the dcclara- 
 
 ' Fawcett v. Fowles, 7 B. & C. •* Spoor v. Holland, 8 Wend. (N. 
 
 394; Rogers v Jones, 3 id. 409; Y.) 44'. 
 
 Mather v. Hood, 8 John. (N. Y.) 44 ; » Gibson v. Peebles, 2 M'Cord (S. 
 
 Bridgett v. Coyney, Esq., 1 M. &R. C ). 418. 
 
 211, per Lord Trndkrdev, C. J. " Roseboom i\ Billing-ton, 17 John. 
 
 ' Brace V. Dyall, 5 Mon. (Ky.) (N. Y.) 182. 
 
 12.'). 126. •> Smith v. Morrow, 7 Mon. (Ky.) 
 
 ' M.iynH>-<l ?\ Thompson, 8 Wend. 234. 
 (N. Y.) 3113.
 
 SEC. 159.] ADMISSIONS. 491 
 
 tioiis of a testator of the plaintiffs iu general are not evi- 
 dence for his executors, yet, where he had been adminis- 
 trator of the defendant's intestate, never having brought in 
 his account, and this omission was urged against him as 
 showing that he knew he had no chiim, it was held that his 
 declarations that the intestate's estate was indebted to him 
 mioht be received to rebut the inference souoht to be raised.^ 
 So, on a trial for forcible entry and detainer, the question Ijcing 
 upon the relator's entry, and the extent and nature of his 
 possession, he having proved that he was in possession, was 
 allowed to show his own declarations as to its extent, and 
 the person under whom he held.- 
 
 The question whether, and how far, the introduction of 
 the defendant's confession or declaration in evidence by the 
 plaintitf, et sic e converso^ will make it evidence for the 
 party who made it, has arisen principally upon the confes- 
 sions of prisoners on trial for crimes. By these cases and 
 others, the followino; o;eneral doctrine seems to be well cs- 
 tablished : — A party^s declarations are evidence in his favor 
 when introduced hy his opponent^ although their truth may be 
 contradicted by contrary declarations of the former, or by 
 other evidence ; and the whole shall go together to the jury, 
 who are not bound to credit the exculpatory confession ^ 
 
 A party's declarations are, of course, inquirable into, in 
 order to test the credit of a witness ; as, if the witness has 
 stated them in a certain Avay, then the party may contradict 
 him by showing what in truth he did say at the time, in 
 order to correct or discredit the- witness."* 
 
 Where there is direct evidence tending to show that an 
 assignment of a legacy, absolute on its face, was in reality 
 collateral security for an antecedent de))t, previous and sub- 
 sequent declarations of the assignee in reference thereto, 
 made to third parties, are admissible as corroborative evi- 
 dence,'^ and the fact that they are contained in the plead- 
 
 * Scull V. Wallace, 15 S. & R. Clewes, 4 id. 221 ; Rex v. Steptoe, 4 
 (Penn.) 231, 233. id. 397 ; Smith v. Blandy, Ry. & M. 
 
 * Smith V. Morrow, 7 Mon. (Ky.) 207. 
 
 234, 23t?. « People x\ Scott, Judicial Re- 
 
 " Rex v. Jones, 2 C. & P. 629; pository (N. Y.), 50. 
 Rex V. Higgins, 3 id. 603 ; Rex v. * Kutz's Appeal, 100 Penn. St. 75.
 
 4!«2 
 
 EVIDENCE. |( HAP. XV. 
 
 in<'-s tilt'il ill the cause does not allect tlioir toiiipcaciKy.^ 
 Aiitl, if made in tlu> pi'oscm-e and at the in.stanc-e of olhcr.s 
 haviiii: a liUo interest with him. they arc cvidonec against 
 tlu'in ;* and they arc achnissihlc in evidence against the per- 
 son making them, ahhongh the Avitnes.s testifying to them 
 did not hear the whole of the conversation of which tlicy 
 form a part.^ 
 
 Upon the (piestion of the defendant's right to maintain a 
 dam, evi(k'nce that the plaintiff at one time made the de- 
 fendant an oiler for the huid, stating that he wanted to buy 
 it so tliat he might remove the dam, is competent as show- 
 ing that the plaintill" recognized the defendant's right to 
 maintain the dam.'* 
 
 In cases where the rights of creditors, forced heirs or other 
 third persons arc in no manner affected, the declarations 
 and admissions of the hnshand, made at a time not suspi- 
 cions, that certain property belongs to his wife and was ac- 
 quired by her, in her own right, by purchase or otherwise, 
 in the absence of any charge of fraud or error, are legal and 
 pi()l)cr, and sufficient evidence against himself or persons 
 claiming through him. And such admissions may be proved 
 under the general issue. ^ So, in an action on an account, the 
 admission that the account Avas correct is an admission that 
 it wii-s correct as to all its itcms.« A paper rejected as a 
 contract may nevertheless, by admissions contained therein, 
 bind a party to it J 
 
 Letters written l)y, or at the instigation of, a party to an 
 action to third persons, warning them not to aid the other 
 party or to testify, or urging them to testify to a particular 
 state of facts, arc in the nature of admissions by conduct, 
 and are admissible in evidence, and this, although they )vero 
 written before suit l)rought, if the controversy preceding the 
 suit was pending at the tinie.^ 
 
 Where an agreement between husband and wife, made 
 
 ' Adams v. Utley, 87 N. C. 3.56. ' Brown v. Stroud. 34 La An. 374. 
 
 ' Tredwell v. Graham, 88 N. C. ' Keller v. Jackson, .58 Iowa. 629. 
 
 208. '' Bishop v. Fletcher, 48 Mich. C55. 
 
 ' Statp V. Pratt, 88 N. C. 639. " Snell v. Bray, 56 Wis. 156. 
 ♦ Lynn v. Thomson, 17 S. C. 129.
 
 SEC. 159.] ADMISSIONS. 493 
 
 before marriage, is set up as a bar to her right to recover 
 dower in his estate by the heirs of the deceased husband, 
 and the widow seeks to avoid the agreement as oljtained from 
 her by her husband's fraud, his declarations that the agree- 
 ment was void or invalid, or good for nothing, and like ex- 
 pressions, are admissible in connection with other evidence 
 as tendinis to show the alleged fraud. ^ In an action on the 
 case for erecting too high a dam, the plaintiff sought to intro- 
 duce a declaration made l)y the grantor of those under whom 
 the plaintiff and defendant claimed, to the effect that the dam 
 was too high, the grantor being dead, and the declaration not 
 beinir against interest, but rather in its favor, was held to be 
 inadmissible.^ In an action by the widow of H. to recover 
 of A. certain land claimed l)y A. under a parol promise of H. 
 to convey, etc., declarations of H. were held to l)e admissible 
 against the plaintiff, she claiming as H.'s widow and as grantee 
 of H.'s heirs at law, and accordingly being in privity with H. 
 So, declarations of the mortgagor or his agent amounting to a 
 license to the morto-asee to sell the land, are admissible.'^ 
 But a party cannot escape the force of adverse evidence by 
 jntroducino; his own statements made before the trial to his 
 attorney."* 
 
 When, at the trial, the witnesses for one of two colliding 
 vessels testified that the bow light of their vessel was 1)urn- 
 iug, and on the day after the hearing of the cause the owners 
 of the vessel caused the court to be informed, by their coun- 
 sel, in open court, that, although the light was burning, it 
 was covered with a tarpaulin at the time of the collision, it 
 was held that such a statement, made under such circum- 
 stances, though forming no part of the evidence given at the 
 trial, must be regarded as an admission given in the cause of 
 the fact so stated.^ In an action by an administrator upon 
 a claim belonging to the estate, declarations made by him 
 when not acting in the discharge of his duties, and to per- 
 
 ' Wentworth v. Wentworth, 71 * Vanneter v. Grossman, 42 Mich. 
 
 Me. 72. 465. 
 
 « Putnam v. Fisher, 52 Vt. 191 ; " The Harry, 9 Ben. (U. S. C. C.) 
 
 36 Am. Rep. 746. 524. 
 
 « Atwell V. State, 63 Ala. 61.
 
 494 EVIDKNCK. I t IIAI'. W . 
 
 sons having no connection with the claim, are not c()nii)etent 
 evidence against him.' Facts stated in letters not replied to 
 arr not necessarily deemed to he admissible^' A release of " all 
 actions, and rights of action," given by the plainliir (o the de- 
 fendant for valnahle consideration, alter snit hronght, is not an 
 admission by the defendant of indebtedness at the connnencc- 
 ment of the snit.^ The fact that a claimant gave notice of a 
 trial of the right of property levied on nnder an execntion, 
 and that no trial was had, is held not to be an admission of 
 the validity of the judgment, service, and retni-n of process,'' 
 In a j>rosecuti()n for adultery, tin; (piestion to the defendant, 
 on cross-examination, M'hether his wife had not made a com- 
 plaint against the other party for the alleged ofiense, cannot 
 be admitted on the theory that the wife could not prosecute 
 without his assent.^ 
 
 When the admissions of a party aflbrd any presumption 
 against him, they are admissible.^ 
 
 Thus the plaintiff, in an action for suffering the defendant's 
 loaded cart to remain in the highway, introduced a witness 
 who testified that the defendant, after the plaintiff received 
 the injury c()nii)lained of, said : " I did not mean to remove 
 the cart and wood until somebody got injured, and then 
 make known who put them into the traveled road ; " and 
 afterwards said : "What would you do? lam provoked 
 every day. I won't touch the w^ood, if half the town runs 
 into it and gets killed." It was held that such testimony 
 was admissible, as it tended to prove that the defendant 
 knew the situation of the cart and wood ; that he recognized 
 them as his own, and had not al)andoned them, or lesigned 
 his claim to any trespasser ; that he had a reasonable time 
 to remove them, but purposely permitted them to remaiii ; 
 and as it furnished, also, strong evidence of the recklessness 
 
 ' Church W.Howard, 79 N. Y. 415. Welts v. Fairbanks, 10 Vt. 516; 
 
 ' Megiiire v. Corwine, 3 Mac- Tenney v. Evans, 14 N. H. 343 ; 
 
 Arthur (D. C), 81. Hardy v. De Loon, 5 Tex. 211 ; Mc- 
 
 » Crawford 7'.MfLeod, 64 Ala. 240. Gill v. A.sh, 7 Penn. St. 297 ; Doyle 
 
 ♦ Ledford v. \VeV,er, 7 111. App. 87. v. St. James' Church, 7 Wend. (N. 
 ' Peojile V. Knap]), 42 Mich. 267. Y.) 78; State v. Littletield, 3 R. I. 
 
 * Phelan v. Bonham, 9 Ark. 389 ; 124 ; Jones v. Morgan, 13 Ga. 515. 
 Goodnow V. Paraons, 36 Vt. 46;
 
 SEC. 159.] ADMISSIONS. 495 
 
 of the defendant, iind might thus legitimately affect the ques- 
 tion of damages in the case.' 
 
 In another case, the plaintiff in an action on a guaranty, 
 for the purpose of proving notice to the defendant of the 
 plaintiff's acceptance of the guaranty and of the sale made 
 under it, offered the declarations of the defendant that he 
 knew of the existence of the guaranty ; that he asked why 
 the claim had not been presented to the commissioners on 
 his estate ; and that, in the conversation, he made no objec- 
 tion that notice had not been given him, but said, if the 
 claim was not outlawed, and it was a continuing guaranty, 
 he would pay it. It was held that such declarations were 
 admissible.^ 
 
 So where the defendant admitted to the officer who ar- 
 rested him, in a suit on an open account, that the account 
 was correct, although it was not then shown to him, the 
 amount only being stated, it was held that there was some 
 testimony before the jury for the plaintiff, and they refused 
 to set the verdict aside.^ The admission might not have the 
 effect of establishing the amount that was due, but it oper- 
 ated to show that s(miething was due from him. 
 
 In an Indiana case, an action was commeuced by A. be- 
 fore a justice of the peace, and taken by appeal to the circuit 
 court. It was held that on the trial on appeal the defend- 
 ant might prove admissions which had been made l)y the 
 plaintiff as a witness in a previous suit in the circuit court, 
 brought by one B. against the defendant."* 
 
 In an Alabama case, it appeared that B. obstructed the 
 waters of a brook so that they flowed upon the land of M. 
 P. and W. afterwards purchased B.'s land, and maintained the 
 obstruction. It was held in an action against them by M. 
 that P.'s admissions as to the injury to the plaintiff's land 
 from the overflow of water upon it, made a number of years 
 before P. purchased an interest in B.'s land, were admissible 
 against him.^ 
 
 If he has given a reason for his conduct which is false, its 
 
 'Linsleyi). Bushnell, ISConn. 225. •• M'Kinzie ■??. Reneaii, 8 Blackf. 
 
 « White V. Reed, 1,^ Conn. 457. (Ind.) 411. 
 
 ^Sug-ar V. Davis, 13 Ga. 462. " Polly v. McCall, 37 Ala. 20.
 
 49G EVIDENCE. [fllAP. XV. 
 
 lulsitv may be shown to enable the jury to infer the true rea- 
 son.* 80 .statements made l)y a party may be shown l^y way 
 of inducement or ilhistration of other evidenec.'' 
 
 So they may be shown, although otherwise incompetent, 
 where other parties have been induced to act ui)on them so 
 that they would be prejudiced if they were withdrawn, and 
 in such a case the party is estopped from denying their 
 truth/' 
 
 A [)arty's admissions of marriage are competent evidence 
 in support of a plea in abatement for the non-joinder of her 
 husband.^ In an action upon an account stated by the 
 plaintitf, l)ut not signed l)y the defendant, it was held that 
 the amount might be proved by the acknowledgment of the 
 defendant.^ 
 
 In an action where notice to the defendant was necessary 
 l)cfore action l)rought, it was held that the admission by 
 the defendant that he had received notice before the action 
 was brought might be given in evidence, although not made 
 until after the action had been commenced.^ 
 
 In an action of assumpsit two witnesses were produced by 
 the plaintitf, who tcstitied to conversations had with the 
 defendant, in which the defendant requested one of them to 
 procure the loan of a certain sum of money from the plain- 
 tiff, this loan being the tact in issue ; the plaintiff produced 
 a third witness to testify to a conversation between himself 
 and the defendant about the same time, in which the defend- 
 ant spoke of his intention to apply for the same loan that 
 the testimony of the other witnesses shoAved that he did 
 apply for. It was held that the testimony of such third 
 witness was admissible."'' 
 
 Evidence given at a former trial by A. was offered as his 
 admission, he being a party to the suit wherein it was ofi'ered. 
 It was held that it might be introduced to prove such admis- 
 sion without the production of the record of the former trial.** 
 
 ' Tompkins v. State, 17 (ia. Sne. * Dole v. YounR-, 24 Pick. (Mass.) 
 
 » Gi-imeat). Talbot, 1 A. K. Mar. 250. 
 
 (Ky.) 205. ' Clark v. McGraw, 14 Mich. 139. 
 
 'Tompkins v. Phillips, 12 Ga. 52. * Kutzmeyer v. Ennis, 27 N. J. L. 
 
 ' L.iu-hlin V. Eaton, 54 Me. 156. 371. 
 
 ' Vinal 0. Burrill, 16 Pick. (Mass.) 
 
 401. *
 
 SEC. 159.J ADMISSIONS. 497 
 
 In a New York case the plaintiff Ijroiight an action aganist 
 the defendant for setting fire to his barn. Prior to the trial, 
 the plaintiff had made certain declarations as to the descrip- 
 tion of the horse which the person who was supposed to have 
 tired the barn rode \ipon the niglit of the burning. The 
 plaintiff was not at that time at home, and when he made 
 these declarations, stated that his information was derived 
 from persons in the vicinity of the fire on the night in ques- 
 tion. On the trial, the plaintiff introduced numerous witnesses 
 to show that the defendant, on the night of the fire, rode a 
 horse of a very different description. It was held that the 
 former declarations of the plaintiff were admissible in evi- 
 dence, as tending to show that the description relied upon 
 by the plaintiff's witnesses was an afterthought, on the dis- 
 covery having been made that a horse answering the descrip- 
 tion testified to was in possession of the defen.dant on the 
 night of the fire.' 
 
 But where a lessor entered the chamber of his lessee with 
 a light, and shortly afterwards the premises were destroyed 
 by fire, it was held that declarations of the defendant, that 
 the bmning of the house and furniture was all his doing, 
 that he had been into the chamber with a lighted candle and 
 thought the house must have taken fire from the candle, 
 were not sufficient evidence to prove that he was negligent 
 or careless in the use of the candle.^ 
 
 A statement made by another person, or a conversation 
 carried on in the presence and hearing of a party, to which 
 he made no reply, cannot be received in evidence against 
 him as an implied admission on his part of its truth, unless 
 it loas of such a character' as would naturally call for a re- 
 sponse from Jam, and he was in a situation in whicli he would 
 probably have replied to it? 
 
 But ihe declarations of one party, made in the presence of 
 the other which do naturally call for a reply, and which are 
 
 ' Stephens v. Vroman, 18 Barb. v. Stidger, 22Cal. 281 ; Rolfei\ Rolfe, 
 
 (N. Y.) 250. 10 Ga. 143 ; Abercrombie i\ Allen, 
 
 » Lansing v. Stone, 37 Barb. (N. 29 Ala. 281 ; Brainard v. Buck, 25 
 
 Y.) 15. Vt. 573; Hersey v. Burton, 23 Vt. 
 
 ^ Lawson v. State, 20 Ala. 65 ; 685. 
 Spencer v. State, 20 id. 24 j Wilkins 
 
 32
 
 498 EVTPEXCE. [chap. XV. 
 
 not denied by the other, are iidinisiible a* evidence for the 
 former.' 
 
 Tliu?. in a suit against an administrator for taking cai-e of 
 his intestate while a minor, the defense was that the latter 
 lived with the plaintitt"s lather, A., and that the services sued 
 for were rendered l)y him. The presence of the minor at 
 A.'s house having been proved, it was held that evidence 
 was admissible of A.'s declarations, made when the minor 
 was introduced into the family, to show in Avhat relation he 
 stood to it." 
 
 A i>arty is not called upon to dispute an account on every 
 occasion on which it may be presented : and when evidence 
 of any act or declaration of a party is given, as tending to 
 prove the account, care should be exercised in determininc/ 
 whether the circumstances required the defendant to dispute 
 the account, so as to cause his omission to do so to have 
 weight against him.^ 
 
 Declarations relating to the subject-matter of a suit, made 
 by a third person, in the presence of a party to the suit, and 
 to which such party had an opportunity to reply, but did 
 not, are admissible in evidence against him. And such evi- 
 dence cannot be controlled by proof of ditierent declara- 
 tions subsequently made by the same person (who died 
 l>efoiv the trial) to othei-s.* But it must be shown that the 
 other party heard the declarations, or was in a situation 
 where he ought to have heard them, or they are not ad- 
 missible against him. Thus declarations made by one claim- 
 ing a right of way, concerning it. in the presence of the owner 
 of the estate, but not heard by him hy reason of deafness, 
 are inadmissible in evidence ag;unst him.* 
 
 ' Block p. Hicks, 27 Ga. 5'>2 ; ' CburcMU r. Fulliam. S Iowa, 45 ; 
 
 Ha^nbauyh r Crabtrw. 3 111. 225 ; Uniteii States r. Kuhn. 4 Cranch (U. 
 
 Baileyr. "W.xHi5. ITN. H.365: Cor- S. C. C). 401: Brig-ht r. Coffmau. 
 
 ser r Paul. 41 N. H. 24 : MoClen- 15 Ind. 371 : Gibnay r. Marchay. 34 
 
 kin r. McMillan. 6 Penn. St. 366 ; N. Y. 301. 
 
 Wells r- r>ra>-ton. 1 Mill (S. C.) * Boston, etc.. R. R. r. Dana, 1 
 
 Const. Ill : Hendrickson r. Miller. Gray (Mass.). S3: Turner r. Teates, 
 
 1 id. 296 ; Drumrig-ht r. State, 29 Ga. 16 How. (U. S.) 14. 
 
 430 : People r. McCrea, 32 Cal. 98. * Tufts p. Chartown. 4 Gray 
 
 * Maxwell p. Ratlia". 26 Ind. 157. (Mass.). 537.
 
 SEC. 159.] ADMISSIONS. 499 
 
 The silence of a tenant for life, when remarks are made in 
 his presence in disparagement of his title, is held to be no 
 evidence against his remainderman.^ 
 
 In an action upon a contract which the plaintift' made 
 through an interpreter, statements concerning the conti-act 
 by the interpreter in the name uf the plaintiff are admissible 
 against the latter, without proof that the}- were truly the 
 plaintiffs statements."^ 
 
 Statements made in the presence of and hearing of a party, 
 without contradiction l\y him, will not be construed as an 
 admission by him of their truth, imless the truth of the 
 statements must necessarily have been within his knowledge.^ 
 
 Where a party omits to assert hi^ claim to one or more 
 large sums of money when all his demands are submitted to 
 an arbitrator, such conduct is construed as an admission, to 
 be properly used against him when subsequently setting up 
 a claim to the same money. Such conduct, however, is open 
 to explanation by the party, as resulting from accident or 
 mistake.* 
 
 An admission will never be presumed irom mere silence, 
 imder the bare ;issertion of a claim, even though the claim 
 is made l)y the party in whose favor it is asserted. But if a 
 party in answer to such a claim makes any declarations as to 
 his own rights, the whole conversation must be submitted to 
 the jury.^ If, however, the statement calls tor a reply, and 
 it is of such a character that if it was uoX true the part}' 
 would natiu'ally deny it, his silence is admissible as tending 
 to show that the statements were true. Thus the omission 
 of a party to reply to statements in a letter about which he 
 has knowledge, and which, if not true, he would naturally 
 deny, especially when he replies to other parts of the letter, 
 is evidence tending to show that the statements so made and 
 not denied are true.'' 
 
 Declarations or admissions, after the execution of a will, 
 
 » McGi-egor v. Wait, 10 Gray » Edwards v. Williams. 3 Miss. 
 (Mass.), 72. (2 How.) 846. 
 
 " Camerlin v. Palmer Co., 10 Allen * Moore i'. Dunn, 42 N. H. 471. 
 (Mass.), .539. =• Mattocks v. Lyman. 16 Vt. 113. 
 
 " Fenno i'. Weston, 31 Vt. 335.
 
 500 EVIDENCE. [rilAP. XV. 
 
 by one of several legatees, who is also the executor and pro- 
 poiR'iit of the will, tending to show undiic influence, and 
 want of nuMital o:ii)acity on the part of the testator, are not 
 admissildr in ])ehalf of the contestants, where the legatees 
 are not jointly interested, and there is no jnoof of conspiracy 
 or combination between theni.^ Nor are the declarations of 
 two or more i)ersons who are shown to have been engaged in 
 a connnon \uilawful purpose admissible in evidence against 
 the others, if made aj'ler the comphlion of the unknvful pur- 
 poHi'? \\\ an action where a recovery may be had against 
 the principal alone or against both himself and the surety, 
 admissions made by the principal after breach of the obliga- 
 tion shotdd not be received as against the surety.^ The dec- 
 larations of a partner, made in procuring a loan, to induce 
 parties to become sureties for the partnership, or to become 
 sureties of a renewal thereof at maturity, during the exist- 
 ence of the partnership, if acted on in good faith, are binding 
 upon the partners.* In an action against G.'s administrator 
 and P., on an alleged partnership debt of P. and G., the ad- 
 ministrator denied the partnershi[), and P. admitted his indi- 
 vidual lial)ility, and pleaded his discharge in bankruptcy, 
 which was not controverted. It was held that declarations 
 by P., tending to prove his liability as a partner of G., were 
 not admissible.^ In an action by a wife to recover for wrong- 
 fully and maliciously procuring her husl)and to abandon her, 
 his declarations, made in the defendant's absence, as to the 
 cause of abandoning her, are inadmissible.'' Declarations of 
 a party made after suit brought, or after a rupture 
 between the })artics, are clearly inadmissible.'' And the 
 declarations of a grantor, after parting with his title, 
 are not evidence to support or impeach it in tin; hands of the 
 grantee ; but, if part of a conversation is given ])y one party, 
 the other may in(piire into the whole." Mere verbal decla- 
 
 ' La Bau v. Vanderbilt, 3 Redf. ' Westlake v. "Westlake, 34 Ohio 
 
 (N. Y.) 384. St. 621. 
 » Phillips V. State, 6 Tex. App. 364. ' Wetmore v. Mell, 1 Ohio St. 26. 
 » Lee V. Brown, 21 Kan. 458. " Posterns v. Posterns, 3 "W. & S. 
 
 ♦MeKee^. Hamilton, 33 Ohio St. 7. (Penn.) 127. 
 » Cowan V. Kinney, 33 Ohio St. 422.
 
 SEC. 159.] ADMISSIONS. 501 
 
 rations, that a release had been executed, will not be suffi- 
 cient to establish the existence of a deed, more particularly 
 where there is no other evidence to support the presumption 
 of its having been executed.' Nor are the declarations of a 
 party interested in the matter in controversy, if made at a 
 time when he had no interest.^ A party to a suit cannot be 
 estopped by his oral admissions to a third person, if by inde- 
 pendent evidence he shows that these admissions were- con- 
 trary to the truth.^ Admissions made with a view to a 
 compromise are not admissible.^ Nor those contained in a 
 deposition in peijMucmi, or declarations made by the depo- 
 nent at the time of giving the deposition.^ Nor those made 
 by the defendant or his attorney, not made to the plaintiff 
 or in his presence.*' Nor the confession of a party to a real 
 action, that he had previously conveyed his right in the 
 premises.^ An admission by a party to a suit, that the suit 
 must go against him, is not admissible. ** Nor confidential 
 overtures for pacification, or other propositions l)et\veen liti- 
 gating parties. But an ofler to pay a debt in property in- 
 stead of money is not an offer of compromise.^ Nor the 
 declaration of a party that a witness introduced by him 
 knew nothing of the matter in controversy.^" Nor that he 
 had been served with a subpoena.'^ Nor a declaration by a 
 party of an intention merely to do a certain act ; except in 
 connection with evidence tending to show that he actually 
 did it.'^ Nor the statement of the plaintiff to a third person, 
 in the presence of one of the defendants, not addressed to 
 him, nor calling for any reply, and not replied to by hini.'^ 
 Nor whatever may be his interest in the matter in dispute, 
 unless charged with knowledge of the acts comi)lained of, are 
 
 * Lands v. Crocker, 3 Bi-ev. (S. ^ Dwinel tJ. Godfrey, 44 Me. 65. 
 C.) 40. * Green v. Sprog-le, 16 Md. 579. 
 
 'Burton v. Scott, 3 Rand. (Va.) ' Barnard t). Pope, 14 Mass. 434. 
 
 399. * Crockett v. Morrison, 11 Miss. 3. 
 
 3 Husbrook v. Strawser, 14 Wis. » Ferry v. Taylor, 33 Mo. 323. 
 
 403. '" Clarke v. Mershon, 2 N. J. L. 70. 
 
 * "Wilson V. Hines, 1 Minor (Ala.), " Hasbrouck v. Baker, 10 Johns. 
 255 ; Rideout v. Newton, 17 N. H. (N Y.) 248. 
 
 71 ; Wood V. Wood, 3 Ala. 756 ; Per- " Bullock v. Beach, 3 Vt. 73. 
 kins V. Concord R. R., 44 N. H. 223 ; ''Gale v. Lincoln, 11 Vt. 152. 
 Williams v. Thorp, 8 Cow. (N. Y.) 
 201 ; State v. Button, 11 Wis. 371.
 
 502 EVIDENCE. [ciiAr. XV. 
 
 his iict.s or admissions evidence lo aft'ect his co-det'cndanta.' Un- 
 sworn i)leadings are never adniitled us evidence against the 
 pleader in another snil between him and other parties, as 
 admissions or dechiralioiis of the tacts contained in them. 
 Still less wonld a party he bound by an expression of opinion 
 as to the extent of his legal rights or liabilities.^ In Mis- 
 souri, wluTc a plaintiir, in an action before a justice of the 
 peace, examines the defendant, he cannot, on ap[)eal to the 
 circuit court, be allowed to prove the declarations of the de- 
 fendant in testifying before the justice of the peace. ^ Evi- 
 dence of admissions by a party that he authorized another 
 to give a note to a third person for a specified sum, does not 
 warrant the reading in evidence of a note corresi)onding 
 with the note thus authorized to be made, without proof 
 of its having l)een duly made.^ A failure of title to 
 lands can be shown only by documentary evidence ; still, a 
 witness, in testifying to conversations with the party rcspon- 
 sil)le in damages, may speak of such failure, if the plaintiff 
 disavows all l)enefit ol" proof of failure of title arising from 
 such conversations.^ The contcnti of a letter which is lost, 
 containing a memorandum of an admission, cannot be used 
 as evidence, where the writer of it can onl}^ say that what he 
 wrote was undoubtedly true, but that he has no recollection 
 of the contents of the letter, except that it contained a i)rop- 
 osition of settlement.'' An admission contained in an unde- 
 livered instrument is not l)inding upon the party whose hand 
 and seal are attached to it.' Wliere the question to be de- 
 termined is the sanity of a person, both the acts and declara- 
 tions of the person are evidence for the purpose of ascertaining 
 the slate of mind of the actor ; but the effect of his acts and 
 declarations on a third ])erson, on the day before the homi- 
 cide, cannot be shown, nor his acts and declarations then 
 made in the al)sence of the accused.^ As a general rule, a 
 
 ' Daw.son ?>. Hall, 2 Mifh. 300. "Clute v. .Small, 17 Wend. (N. Y.) 
 
 ' Cnimp V. Geiwk, 40 Mis.s. im. 238. 
 
 ' Martien 75. Barr, .5 Mo. 102. 'Robinson v. Cushman, 2 Den. 
 
 ^Minard r. Mead, 7 Wend. (N. (N. Y.) 149. 
 
 Y.) i\H. ^Lake v. People, 1 Park. (N. Y.) 
 
 ' Morris V. Wadsworth, 17 Wend. Cr. 495. 
 (N. Y.) 103.
 
 SEC. 160.] ADMISSIONS. 503 
 
 paper executed by a third person cannot be admitted as 
 evidence of the truth of its recitals, when his declarations to 
 the same effect woukl be inadmissible, on the ground of 
 beiuo- hearsay evidence.^ In an action brought for services 
 in neo-otiating the purchase of real estate, a declaiation of 
 the plaintiff to the vendor of the land is inadmissible to show 
 the amount the plaintiff was to receive for his services from 
 the vendee.^ Nor are admissions admissible to prove the 
 contents of a written instrnment, without its absence is 
 accounted for by proof of notice to produce it on proof of 
 its loss. The absence of the instrument in another State is 
 not a sufficient reason for admitting parol evidence of its 
 contents.^ 
 
 Sec. 160. Whole Admission must be taken together. 
 
 An important rule relating to the admissions of a party is, 
 that the whole statement containing the admission must be 
 taken together, whether the admission is verl)al or written ; 
 for although some part of it may contain matter favor- 
 able to the party, and the object is only to ascertain what 
 he has conceded against himself, and what may therefore be 
 presumed to be true, yet, unless the whole is received and con- 
 sidered, the true meaning and import of the part which is 
 good evidence against him cannot be ascertained.* But 
 
 'Garrigue t). Losber, 3 Bosw. (N. 392; Kammell v. Bassett, 24 Ark. 
 
 Y.) 578. 499 ; Wilson v. Calvert, 8 Ala. 757 ; 
 
 2 Erben v. Lorillard, 19 N. Y. 299. Ward v. Winston, 20 Ala. 167 ; Bar- 
 
 * Threadgill v. White, 11 Ired. num v. Barnum, 9 Conn. 242 ; Ives 
 (N. C.) L. 591. V. Bartholemew, id. 309; Bristol v. 
 
 * Thomson v. Austen, 2 D. & Ry. Warner, 19 Conn. 7 ; Morris v. 
 361 ; Fletcher v. Froggart, 2 C. & Stokes, 21 Ga. 552 ; Withers v. Rich- 
 P. 569. It is a principle well settled, ardson, 5 T. B. Mon. (Ky.) 94; 
 that the admissions of a party. Turner v. Jenkins, 1 Har. & J. (Md.) 
 where given in evidence, must be 161 ; Whitwell w Wyer, 11 Mass. 6 ; 
 taken together, as well what makes O'Brien v. Cheney, 5 Cush. (Mass.) 
 in his favor as what makes against 148 ; Moore v. Ross, 11 N. H. 547 ; 
 him. Storer v. Gowen, 18 Me. 174 ; Kelsey v. Bush, 2 Hill (N. Y.), 440 ; 
 Howard v. Newson, 5 Mo. 523 ; Carver v. Tracy, 3 Johns. (N. Y.) 
 Reas V. Hardy, 7 Mo. 348 ; Taylor 427 ; Wailing v. Toll, 9 id. 141 ; 
 V. Whiting, 2 B. Mon. (Ky.) 268; Credit 7). Brown, 10 id. 365; Hop- 
 Arnold V. Johnson. 2 111. 196; kins n Smith, 11 id. 161 ; Tenner v. 
 Newman v. Bradley, 1 Ball. (U. Lewis, 10 id. 38; Perego v. Purdy, 
 S.) 240; Farrel v. McClea, id. 1 Hilt. (N. Y.) 269; Overman v.
 
 504 
 
 EVIDENCE. 
 
 [CIIAT. XV. 
 
 thoiii^'h the whole of what he .said at the .saiiK! time, and rc- 
 hitin*'- to the same .subject, iiiu.st l)e given in evideiiee, it does 
 
 Coble, 13 Ired. (N. C.) L. 1 ; Devlin 
 ■I'. Killcrease, 2 McMull. (S. C.) 425. 
 But the jui-y may believe a portion 
 and disregiiitl the rest. Coon v. 
 State, 21 Miss. 24(5; McCauu v. 
 State, id. 471 ; Lieett t\ State, 23 
 Ga. 57 ; Field v. Hitchcock, 17 Pick. 
 (Mass.) 182 ; Green v. State, 13 Mo. 
 382 ; Mattocks v. Lyman, 18 Vt. 98 ; 
 "Wilson V. Calvert, 8 Ala. 757 ; 
 Brown's Case, 9 Leigh (Va.), 633. 
 "Wlvere the evidence was, that the 
 defendant, on being shown tWt; 
 plaintilf's account, said : " It is cor- 
 rect, but I have an offset," and no 
 evidence was offered to prove any 
 oflfset, it was held that a recovery 
 for the amount of the plaintiff's ac- 
 count was warranted by the evi- 
 dence, Delamater v. Pierce, 3 Den. 
 (N. Y.) 315, 610. So where, in tro- 
 ver, a witness testifies that the prop- 
 erty in (luestion belongs to the plain- 
 tiff, that, as authorized by him, she 
 pledged it on certain terms to the de- 
 fendants, telling them the property 
 was the plaintiff's, it was held is not 
 erroneous to allow the witness to 
 state what she told the plaintiff was 
 the bargain made. Meserole v. 
 Archer. 3 Bosw. (N. Y.) 376. If a 
 defendant relies upon an atlmission 
 in a bill in equity, he must, as a 
 general rule, take the whole of such 
 admission. Stuart v. Kissam, 2 
 Barb. (N. Y.) 493. But there are 
 exceptions to this iiile. Thus, while 
 the declarations of a party in pos- 
 session of land, or of personal prop- 
 erty, are admissilile as explanatory 
 of his possession, it is not permissi- 
 ble to prove everj'thing he said 
 in respect to the title, how it was 
 acquired, etc., and an inquiry em- 
 bracing so extensive a scope shoiild 
 be rejected. McBnde v. Thom]i- 
 son, 8 Ala. 650. Nor can the dec- 
 
 lai-ation of a party be made evidence 
 ill his own favor on the ground that 
 tht\v were made in a convci-sation, 
 pai't of which was called out on a 
 cross-examination by the other 
 party. Lynch i\ McBeth, 7 How. 
 (N. Y.) Pi-. 113. Where the decla- 
 rations of a vendor are given in evi- 
 dence against him, in oi-der to prove 
 representations made by him at the 
 sale, it is competent to prove every- 
 thing he said at the tiine upon the sub- 
 ject, but not what he said subse- 
 quently. Bradford t». Bush, 10 Ala. 
 386. All that was heard of a party's 
 admissions may be given in evidence 
 against him, although more was said 
 which was not heard. State v. Co\'- 
 ington, 2 Bailey (S. C), 569 ; Mays 
 V. Deavei-, 1 Iowa, 210; Williams 7). 
 Keyser, 11 Fla. 234. The rule that 
 where confessions or admissions are 
 introduced by one party, the oppo- 
 site party is entitled to the whole 
 conversation, does not give such 
 party a right to the whole conver- 
 sation of the witness, because he hjia 
 stated some of his remarks neces- 
 sary to the understanding of what 
 the party said. Young v. Bennett, 
 5 111. 43. Where a party offei-s in 
 evidence the admissions of an op- 
 ponent, though the whole admission 
 mustbetakiin and weighed together, 
 it is not necessary that the juiy 
 should tind it to be wholly true, or 
 wholly reject the evidtmce. It must 
 all be received as testimony for 
 their consideration ; but the truth 
 of the whole, or any part, may be 
 judged of from the declaration itself 
 or from other testimony oveiTuling 
 or controlling those portions of the 
 admission making against the party 
 offoi-ing it. Peai-son v. Sabin. 10 N. 
 H. 205. And a court or jury may. 
 on sufficient ground, believe part
 
 SEC. 160.] ADMISSIONS. 505 
 
 not follow that all the parts of the statement should be re- 
 garded as equally deserving of credit : Ijut the jury must 
 consider, under all the circumstances, how much of the 
 whole statement they deem worthy of l)elief, including as 
 •well the facts asserted by the party in his own favor, as 
 those making against him.^ The presumption or prol)ability 
 that those portions oi" a party's statement which arc against 
 his interest are true, is supposed to give credit to other parts 
 of the same statement, with respect to which there is no 
 such presumption, but perhaps a contrary presumption. A 
 statement therefore received for the purpose of proving 
 facts therein stated by him against his interest, is not to be 
 excluded with respect to other tacts stated which are in his 
 favor.^ It is, however, to be understood that the several 
 parts of a statement are not necessardy entitled to equal 
 credit ; the jury may l^elieve one, and reject the other.'' 
 
 And where the party, to substantiate a credit in his favor, 
 produces an account made out b}- the opposite jiarty, though 
 he renders it evidence in the first instance to prove the debits 
 against himself in the same account, yet this is not conclu- 
 sive, and he will still be at liberty to disprove the del)its,'* 
 or impeach them by showing them erroneous on their face.^ 
 And where, in an action for the price of one-half of a steam- 
 boat sold, the defendant admitted that he purchased it, but 
 
 and disbelieve another part, yet 788, per Lord Mansfield ; Smith v. 
 
 such parts must be distinct, and re- Blandy, Ry. & M.259, per Best, C. 
 
 late to different matters of fact. J. ; Cray v. Halls, cited id. 258, per 
 
 Fox V. Lambson, 8 N. J. L. 275. Abbott, C. J.; Whitwell v. Wyer, 
 
 The rule that a party's admissions 11 Mass. 6, 10; Garey IJ. Nicholson, 
 
 are to be taken altogether, is limited 24 Wend. (N. Y.) 350; Kelsey v. 
 
 to what was said at the time. Ed- Bush, 2 Hill (N. Y.), 440. 
 
 wards v. Ford, 2 Bailey (S. C), 461 ; ^ Beckham v. Osborne, 6 M. & G. 
 
 Hatch V. Potter, 3 111. (2 Gilm.) 725 ; 771. 
 
 People V. Green, 1 Park. (N. Y.) Cr. * Berman v. Woodbridge, 2 Doug. 
 
 11. And the declarations of a party 788 ; Rex v. Clewes, 4 C. & P. 221 ; 
 
 on one day, as explanatory of what Smith 7'. Hunt, 1 McCord (S. C), 
 
 was said l)y him on another day, 449. 
 
 and which was given in evidence, * Walden v. Sherburne, 15 John, 
 
 cannot be shown by testimony. (N. Y.) 409 ; Turner ri. Child, 1 Dev. 
 
 Blight V. Ashley, Pet. (U. S. C. C.) (N. C.) 134. 
 
 15. ^ Jones v. Jones, 4 Hen. & Munf. 
 
 * Berman v. Woodbridge, 2 Doug. 447.
 
 506 EVIDENCE. [ciIAr. XV. 
 
 said he luul paid Tor it, the pluiiitiir w:is tillowt'd to disprove 
 the hitter hranch of the conlossion by cireiiiu.>?t:uice.s ; and the 
 jury thinking it was overcome, the court refused to disturb 
 the verdict, the court saying : '• Confessions must be taken 
 together; but when extra-jiuncial, as in this case, the weight) 
 of evidence l)y which they may be leljutted depends on all 
 tlie circumstances of the case as disch)sed l)y testimou}'." ' 
 So, where the evidence in ((^sunipstt for money lent was, that 
 the defendant said, '• I borrowed the money, but I paid it," 
 the jury avcic instructed that the confession must De received 
 together, but that they Avere not bound to credit the asser- 
 tion of payment ; and they found for the plaintiff, owing to 
 some sbght evidence which tended to repel the assertion of 
 payment.^ In an action for wages, as 'mate of a vessel, 
 against the master, the latter said he was captain, but never 
 engaged the plaintiff, who was employed by the owner. 
 The court -told the jury they must take the whole 
 together, unless the part in his favor was inconsistent or im- 
 probable. The defendant had a right to choose; his mate, 
 though employed by the owner ; and the mate had a three- 
 fold remedy, one against the master, the same as a connnon 
 sailor had ; and gave the opinion of the court, that if the 
 plaintiir served with the defendant's permission, he was liable.^ 
 In another case, the plaintiff proved that he presented his 
 account to the defendant, who said, " It is just, but I paid it 
 ])y a man in Petersl)urgh ; and had I time, I could proveit." 
 The court said : "The rule is, that a confession shall be 
 taken together ; but if there are ciicumstances mentioned 
 in the confession Avhich, when examined into, disi)r()ve the 
 matter alleged in discharge, or where that matter can be dis- 
 proved, the juiy are to reject it, and go upon the other part 
 of the confession only ; as where he says, ' The account is just, 
 l)ut I paid it ])elbre such persons,' and tluy know nothing of 
 the payment ; or at such time and place, and it be proved 
 that at that time he was not at the place, but at another, f u- 
 
 '■ Quick V. .Johnson, 6 Mart. (La.) '^ Nowman v Bradley, 1 Dall. (l^ 
 
 532, .533. And see Thommon v. S.) 240. 
 
 Kalhach, 12 S. & R. (Penn.) 238, ' Farrel v. M'Clea, 1 Dall. (U. S.) 
 
 240. 382.
 
 SEC, 160.] ADMISSIONS. 507 
 
 distant ; or if he says, ' The account is just, but I will prove it 
 paid if I have time,' and he is allowed that time and called 
 upon to make that proof, and does not ; in such and the like 
 cases, the matter in discharge will l)e rejected."^ In stating 
 an account, the creditor charged inter «//« $150 for a wagon, 
 which was the only item proved, and made the balance due 
 to him $84, after giving several credits. He, at the time of 
 stating the account, admitted that the wagon had been paid 
 l"or, which, if he had not been allowed his other charges, 
 would have made a balance the other way. The jury con- 
 sidered the written statement and confession all toorethei-, and 
 discredited the latter, allowing the lialance as struck. This 
 was held proper. The court said the jury must judge what 
 credit is due to any part of a statement, written or oral.^ 
 The defendant confessed he had committed a homicide by 
 shooting at the vital parts of a negro, declaring at the time 
 he intended to hit his legs ; but other proof showed him 
 within ten feet of the negro when he shot, so that he 
 might have hit his legs if he had .chosen. In trespass by 
 the owner of the negro, it was held that the jury might 
 reject the latter pait of the confession and act on the first.^ 
 On a reference to take an account, the defendant claimed 
 to have allowed to him credits for large disbursements con- 
 tained in an account produced against him l)y his adversary. 
 But the account did not say to whom nor for what the pay- 
 ments were made, nor did it give particulars of time ; sev- 
 eral items were discredited, and one had been allowed in 
 another and distinct account. Chancellor Kent, on hear- 
 ing exceptions to the master's report, said : " There is no 
 doubt of the general rule, that when one party exhibits a 
 paper in proof to charge his opponent, his opponent is en- 
 titled to nse it in his discharge. But it does not follow that 
 each part is entitled to the same credit. The charge may l)e 
 so clear and specific as to be conclusive, while the discharge 
 is so loose and defective as to deserve no credit. We have 
 seen that those discharges are inaccurate in some instances ; 
 
 ' Barnes v. Kelley, 2 Hay. (N. = Arthur v. Wells, 2 Rep. Const. 
 C.) 45. (S. C.) 314. 
 
 "■ Turner v. Child, 1 Dev. (U. S.) 
 133, 134.
 
 508 EVIDENCE. [( UAl'. XV. 
 
 that they have no precision or certainty as to placeorcii^uni- 
 slant'c, that wo have evidence of the allowance of part on 
 other proof, and of i\\(i jxhsilice injustice of other parts; and 
 we are justified and bound, upon all .sound principles, to re- 
 ject the whole."' Though, where a confession or declara- 
 tion is given in evidence, a court and jury nui}', on suthcienl 
 ground, believe part and disbelieve another part, yel such 
 parts may be distinct and relate to diffei'ent matters or f<(cf^, 
 as, " I acknowledge {\nxi I borroived the money, but I repaid 
 itr -" 
 
 When an account is presented to a party, containing items 
 on both sides, and showing a balance against him, and he 
 answers, " It is correct, but I have an offset," this is sufficient 
 to authorize a verdict for the l)alance admitted to be due, no 
 other evidence of the set-olf being given.-* The whole con- 
 versation relating to the admission may be given : that which 
 tends to discharge the party making the admission, Jis Avell 
 as that which tends to charge him.* But the referee or 
 jury is not bound to gij^e equal credit to every part of the 
 conversation or declaration ; ^ and it is proper for the court 
 so to charge the jury." 
 
 In an English case,"^ in an action for goods sold and de- 
 livered, one of the plaintiff's witnesses stated, upon cross-ex- 
 amination, that he had heard the plaintiH' say that the goods 
 were sold under a written contract, which the plaintifl* at the 
 time showed the witness ; a broker's note was then produced 
 l)y the plaintiff's counsel, which the witness said was the 
 paper spoken of. It Avas ol)jected that the ])roker's note 
 
 " Method. Ep. Ch. et al. v. Jacques ' Barnes v. Allen, 30 Barb. (N. 
 
 €t ah, 3 John. Ch. (N. Y.) ll.-)-117. Y.) 653. 
 
 ' Fox V. Lambson, 7 N. J. Erj. ' Smith r\ Blantly, Ry. & Mo. 
 
 255. 257 ; Cray v. Halls, citeil id., where 
 
 ' Delamater ^). Pierce, 3 Den. N. Abbott, C. J., left the whole of a 
 
 Y.) 315. conversation to a jury to consider 
 
 * Dorlon v. Dougla.ss, 6 Bai-b. (N. whether the facts asserted by a 
 Y.) 451 ; Coon v. ITie State, 13 S. & party in his own favor were not 
 M. 246, 471 ; Diiffield v. Cross, 12 true, as well as those against him. 
 111. 397 ; Roberts v. Gee, 15 Barb. And see Remmie i\ Hall, Manning's 
 (N. Y.) 449. N. P. Dig. (2d ed.), 376, cit. 3 M. & 
 
 * Beares v. Copley, 10 N. Y. 03. G. 834.
 
 SEC. 160.] ADMISSIONS. 509 
 
 ought not to be received as evidence of the contract, unless 
 the broker was called to prove it. But the objection Avas 
 overruled, and it was held by Best, C. J., that the whole of 
 what a party says at the same time nuist be given in evi- 
 dence, though what he saj^s in his favor must not on that 
 account be taken as true, Ijut nuist be left, with all the 
 circumstances, for the jury to consider whether thev l)elicve 
 it or not. And in another case' it was held that where a 
 person admitted a claim, but at the same time set up a coun- 
 terclaim, the statement of the counterclaim was admissible 
 to prove not only its existence, but also its truth and cor- 
 rectness. 
 
 It will be seen that the rule, simjile as it appears, is not 
 without difficulty in its practical application. It should be 
 stated that it applies equally to written and verbal admis- 
 sions; and, consequently, where a defendant has rendered a 
 debtor and creditor account to the plaintiff, which the latter 
 produces in proof of his demand, it will be equally admissi- 
 sible in evidence of the defendant's set-off,^ although the plain- 
 tiff will be at liberty, while relying on the creditor side of 
 the account, to impeach items which appear on the debtor 
 side.^ If the admission is contained in an affidavit, a writ- 
 ten examination,'* an answer in Chancery, or other document 
 complete in itself, the rule at common law is, that the whole 
 document must be read, although the jury need not give equal 
 credit to every part of it, and will frequently give credence 
 only to such portions as make in favor of the declar- 
 ant ; ^ and so stringent is this rule, that where, on excep- 
 tions taken, a second answer had been filed, the defendant 
 
 ^ Randle v. Blackburn, 5 Taunt. ' Rose v. Savory, 2 Bing. N. C. 
 
 255. And see Thompson v. Austen, 145 ; 2 Sc. 199, S. C. 
 
 2 D. & R. 361 ; Fletcher, v. Frog- * In Prince v. Samo, 7 A. & E. 
 gatt, 2 C. & P. 569 ; Green -d. Dimn, 630, Colkridge, J., asked whether 
 
 3 Campb. 215 ; Smith v. Young, 1 the question had ever been decided 
 Campb. 439 ; Barrymore v. Taylor, as to depositions, to which the 
 1 Esp. 325 ; Com. Dig., tit. Evidence, counsel replied that no express de- 
 B, 5 ; 12 Vin. Ab., tit. Evidence, A, cisionhad been found. 
 
 23 ; 2 Ventr. 171 ; Cooper v. Smith, * Bej-mon v. Woodbridge, 2 Doug. 
 
 15 East, 103. 788 ; Blount v. Burrow, 4 Brown, 
 
 " Randle v. Blackburn, 5 Taunt. C. C. 75. 
 245.
 
 510 EVIDENCE. [chap. XV. 
 
 -sva.s :ill()\V('(l to insist upon having tli;il also read, in order to 
 explain what he had sworn in his lirst answer.^ It has also 
 been held that a party, against whom an answer iu chancery 
 is produced, may have the wliole bill read as part of his ad- 
 versary's case, on the ground that this is like the ordinary 
 case of a conversation, where the answers of a party cannot 
 be given in evidence against him without also proving the 
 questions which drew forth the answers. The jury, however, 
 should in such coses be warned that the statements in the 
 bill are not admissions of the facts contained therein, it being 
 uotorious that allegations not coiLsistent with fact are fre- 
 qucnllv introduced into a bill for the sole purpose of elicit- 
 ing truth from the opposite party .^ Where the plaintifls, 
 -svho were assignees of a bankrupt, gave iu evidence an ex- 
 amination of the defendant l^efore the commissioners as proof 
 that he took certain property, the court held that they 
 therein' uiade his cross-examinatiou evidence in the cause ; 
 and as, in this cross-examination, the defendant had stated 
 that he had purchased the property under a written agree- 
 ment, a copy of which was entered as part of his answer, 
 this statement was considered as some evidence on behalf of 
 the defendant himself of the agreement and its contents ; 
 and that, too, although the absence of the document was not 
 accounted for, and notice not been given to the plaintiff's to 
 produce it.^ So, in an action against a sheriff", where an 
 under-sheriff's letter was produced by the plaintiff" to affect 
 the defendant, it was held to be some evidence also of cer- 
 tain facts stated therein, which tended to excuse the sheriff'; * 
 and on a similar principle, where, in order to fix a sheriff" in 
 an action of trespass against him, the plaintiff" put in his 
 warrant under which the seizure was made, and which 
 reciled the writ o^ f. fa., the court held that this recital 
 was some evidence of the writ, and consequently tended to 
 
 ' R. V. CaiT. 1 Sid. 418 ; B. N. P. ' Goss v. Qiiinton, 3 M. & Gr. 825. 
 
 237 ; Lord Bath v. Bathei-sea, 5 Mod. * Haynes v. Hayton, 6 L. J. K. B. 
 
 10 ; Lynch v. Gierke, 3 Salk. 1.54. (0. S.) 231, recognized in Bessey V. 
 
 * Pennell v. Meyer, 2 M & Rob. Windham, 6 Q. B. 172. 
 98, 7)e»- TiNDALL, C. J.; 8 C. & P. 
 470, S. C.
 
 SEC. 160.J ADMISSIONS. 511 
 
 protect the sheriff, as showhig that the seizure was made hy 
 the authority of the law.^ 
 
 The rule originally was, that where the admission was in 
 the course of a conversation in which several distinct mattei-s 
 were discussed, theiuJiole convei'sation was admissible, whether 
 it rehited to the admission or not ; - but the unreason- 
 ableness as well as injustice of this rule soon became obvi- 
 ous, and now it is held that onlij that part of the conversa- 
 tion lohich exjilains or qualifies iJte matter before the court is 
 admissible.' In the case last cited an action was brouo;ht 
 for malicious arrest on a false suggestion that money was 
 lent by the defendant to the ])laintifl', when in fact it had 
 been given, to him. The plaintiff called his attorney as 
 a witness, who happened to be present at the trial of a 
 prosecution for perjury, instituted by the plaintiff against 
 a witness in thy action wherein he had been arrested. The 
 defendant's counsel inquired of him, in cross-examination, 
 whether the plaintiff had not, on the trial for perjury, stated 
 that he himself had been insolvent repeatedly and remanded 
 by the court. This question was not objected to. On his 
 re-examination the same witness was asked whether the 
 plaintiff had not also on that occasion given an account of 
 the circumstances out of which the arrest had arisen, and 
 what that account was, for the purpose of laying before the 
 jury proof that the arrest was without cause and malicious. 
 This question, expressly confined to that purpose, was, 
 whether the plaintiff did not say, in the course of his exam- 
 ination, that the nioney was given and not lent. To this 
 question the defendant's counsel objected, upon the ground 
 that the circumstance of the defendant having jiroved one 
 detached expression that fell from the plaintiff when a wit- 
 ness, did not make the whole of what he then said evidence 
 in his favor. Lord Denman-, C. J., at the trial was of 
 opinion that the witness might be asked as to everything 
 said by the plaintiff, when he aj^peared on the trial of the 
 indictment, that could in any Avay qualify or explain the 
 statement as to which he had been cross examined ; but that 
 
 » Bessey v. Windham, 6 Q. B. 166. ^ Prince v. Samo, 7 Ad. & El. 627. 
 » The Queen's Case, 2 B. & B. 846.
 
 512 EVIDENCE. [chap. XV. 
 
 //(' J.ad no right to add any independent history of transac- 
 tions wholly unconnected with it. The court afterwards held 
 that the line had been correctly drawn by his Lordship at 
 the trial. 
 
 In this case, the dictum of Abbott, C. J., in the Queen's 
 Case, just referred to, Avas cited, and Lord Denman, C. J., 
 in giving the judgment of the court, observed, with regard 
 to that dictum : " We forbear from entering into a detailed 
 examination of the doctrine Iherc laid down. We have con- 
 sidered it repeatedly with all the diffidence inspired by such 
 an authority, l)ut we cannot assent to it. We will merely 
 observe that it was not introduced as an answer to any 
 question proposed by the House of Lords,' and may, there- 
 fore, be strictly regarded as extra-judicial ; that it was not 
 necessary, as a reason for the answer to the question that 
 was ])roposed ; that it was not in terms adopted by Lokd 
 Eldon, or any other of the judges who concurred ; that 
 it was expressly denied by Lords Eedesdale and Wyn- 
 ford ; and that it does not rest on any previous authority. 
 AVe ought to add that, in our opinion, the reason of the 
 thing would rather go to exclude the statements of a party 
 making declarations which cannot be disinterested." 
 
 Ui)on a review, therefore, of the authorities, the correct 
 rule seems to be as follows : That where a statement, form- 
 ing a part of a conversation, is given in evidence, whatever 
 was said by the same person in the same conversation, tJiat 
 ivould in any ioa,y qualify or explain that statement, is also 
 admissible ; hut detached and independent statements, in no 
 ivay connected with the statement given in evidence, are not 
 admissible ; and that there is no difference in this respect 
 between statements made in conversation by a party to the 
 suit, and those made by a third party. 
 
 Sec. 161. Weight to be given to Admissions and Declarations. 
 
 Admissions or declarations may be very weak as evidence ^ 
 
 * The question had reference to conversation. Sec 2 B. & B. 294, 
 
 the re-examination of a wtneas for 290, and supra. 
 
 the imrpose of letting in the whole * Dupre v. McNight, 6 La. An. 
 
 of what he himself had stated in a 146 ; Printup v. Mitchell, 17 Ga.
 
 SEC. 161.] ADMISSIONS. 513 
 
 or very strong, according to the circumstances under which 
 they were made, and in all cases these circumstances should 
 be carefully scanned.^ Such admissions are only admissible 
 when parol evidence is admissible to establish the fact.^ An 
 admission by way of a demurrer to a plea is just as admissi- 
 be as though admitted 07'e tenus before a jury.'' It is not 
 essential that the party making the admission should have 
 personal knowledge of the facts admitted. If he believes a 
 fact to 1)e true upon evidence sufficient to convince him of its 
 truth, his statement of such fact, if against his interest, is 
 evidence against him ; and though of an unsatisfactory char- 
 acter, it is still competent.-* They may be sufficient, although 
 they are not conclusive evidence against him,^ and although 
 they have been drawn from him by a false suggestion,'^ but 
 not where they were made under a misapprehension of his 
 legal rights, where they go to defeat or establish such right.' 
 
 Rei^resentations made by a party to another person, 
 with a view to gain credit or advantage, are admissible in 
 evidence against him, and are conclusive. But such repre- 
 sentations are not conclusive against him whei-e there is no 
 breach of good faith in receding from them." 
 
 If a party to a suit, whether upon the stand as a witness 
 or otherwise, is shown a paper containing written statements 
 material to the issue and adverse to his interests, and he, 
 after examination, admits that the statements therein con- 
 tained are true, the paper containing the statements may go 
 to the jury, in connection with his testimony or statements, 
 as the admission of the party, and it makes no difference 
 when, where or by whom the statement was thus written.' 
 
 558 ; Horner v. Speed, 2 P. & H. = Coffin v. Knott, 2 Greene (Iowa), 
 
 (Va.) 616; Vaughn v. Haim, 6 B. 582. 
 
 Mon. (Ky.) 338; The Latty Ole, U. ' Sparr v. WeUman, 11 Mo. 230; 
 
 S. Adm. 329 ; Parker v. McNeill, Kitchens v. Robbins, 29 Ga. 713. 
 
 20 Miss. 355. ^ Cafferatta v. Cafferatta, 22 Mo. 
 
 » Eaton V. Welsh, 29 Ga. 443; 235. 
 
 Wittick V. Kiffer, 31 Ala. 199 ; Fid- « Higgins'W. Dellinger, 22 Mo. 397. 
 
 ler V. McKinley, 21 111. 308 ; Chand- ' Moore v. Hitchcock, 4 Wend, 
 
 ler V. Schoonmaker, 14 Ind. 324; (N. Y.) 292. 
 
 Hoper V. Evans, 9 Miss. 195. * Tufts v. Hayes, 5 N. H. 452 ; 
 
 ^ Bivins v. McElroy, 11 Ark. 23 ; Scammon v. Scammon, 33 N. H. 52. 
 
 Brooks V. Ishell, 21 Ark. 488. = Rich v. Flanders, 39 JV. H. 304. 
 
 33
 
 514 EVIDENCE. [CIIAP. XV. 
 
 Ill ail action to recover for goods sold, proof of an admis- 
 sion hy the buyer of the correctness of the account against 
 him, thoro l)eiiig no dispute on the trial as to the amount, is 
 proof of the sale and delivery of the goods.' 
 
 An admission ])y one (hiring his tenancy, under whom one 
 of the plaiiititls claim, aifects such plaintilf only. ^ By the 
 coniinon law, whenever the act or declaration of a party 
 then interested would be evidence against himself, they will 
 be evidence against his subsequent assignee, or party claim- 
 ing under him.'' But the expression of an opinion by one 
 that he is liable for a certain debt is not evidence of his lia- 
 bility.^ Nor can any presumption of a fact be drawn from 
 it, where the fact is expressly denied.'^ The mere admis- 
 sion of a " debt" is not sufficient to charge the defendant 
 with the whole demand of the plaintiff; but the amount 
 must be proved.^ 
 
 Sec. 162. Where and Howr a Party may Discredit his Admissions. 
 
 / A i)arty cannot rel)ut the evidence of his own admissions 
 
 / by ditferent declarations made at other times,'^ but he may 
 
 show that they were not true. The declarations of a party 
 
 that he had })romised to a stage line four horses are not evi- 
 
 I deuce sufhcient to warrant the inference that he was a joint 
 
 \ proprietor, and it is competent to repel all inferences to his 
 
 \ prejudice by showing that he actually sold three horses to 
 
 the agent of the ostensible proprietor of the liiie.^ 
 
 Although the declarations or admissions of a party are 
 evidence against himself, yet they do not, when oflfered, 
 
 ' New York Ice Co. v. Parker, 8 M. (Va.) 401 ; Doug-lass v. Davie, 2 
 
 Bosw. (N. Y.) 683; Griffin tJ. Keith, McCord (S. C), 219 ; Harrison v. 
 
 1 Hilt. (N. Y.) 58. McKinney, 2 Bay (S. C), 412. 
 
 » Grant v. Levan, 4 Penn. St. 303. ' Lee v. Hamilton, 3 Ala. 529 ; 
 
 ' Snelg-rove v. Martin, 2 McCord Hunt -!>. Roylanco, 11 Cash. (Mass.) 
 
 (S. C), 241 ; Ten Eyck v. Runk, 26 117 ; Clark v. Huftaher, 26 Mo. 264 ; 
 
 N. J. L. .')13. Tucker v. Frederick, 28 Mo. 574 ; 
 
 * Berryhill v. McKee, 1 Humph. McPeake v. Hntchin.son, 5 S. & R. 
 (Tenn.) 31. (Penn.) 295 ; Snowden v. Pope, 
 
 " Clarendon v. Weston, 16 Vt. Rice (S. C.) Ch. 174; Davis?). Kirk- 
 
 332; Brown v. Munger, id. 12; aey, 2 Rich. (S. C.) 176; Jones -w. 
 
 Smith V. Jones, 15 Johns. (N. Y.) State, 13 Tex. 168. 
 
 229 ; Ripley v. Paige, 12 Vt. 353. " Anderson v. Snow, 9 Ala. 247. 
 
 • Quarles v. Littlepage, 2 H. &
 
 SEC. 162.J ADMISSIONS. 515 
 
 justify him iu introducing proof of his couuter-declaratioiis, 
 made at a different time, unless the latter form a part of the 
 res gestae.^ He may show that he made them jocularly.^ 
 
 The admission of a fact when not under such circum- 
 stances as to work an estoppel against the party making it, and 
 when it is shown to have been made l)y one who could not 
 ha^^e known the fact from his own knowledge, is but evi- 
 dence of the existence of that fact, and may be denied by 
 satisfactory testimony of witnesses who base their evidence 
 upon personal knowledge? A party is at liberty to explain 
 them, or show that he was mistaken, and this, though the 
 admissions were under oath.* Or that they were untrue or 
 made under a mistake, unless another has acted, relying on 
 them, so as to estop him.^ But a judicial admission, 
 solemnly made, cannot he denied.^ 
 
 Notwithstanding the admission by the defendants of a 
 judgment as evidence from which the jury might tind a ver- 
 dict for the whole amount of the claims sued on, but not 
 conceding it to be conclusive evidence, it is competent for 
 them to claim any credit to which they might show them- 
 selves entitled by proof. "^ Verbal admissions, hastily 
 made without investigation, and in ignorance of material 
 facts of a case, are not binding where the facts to the con- 
 trary are unequivocally established.^ 
 
 •When a party admits a letter or other document to be 
 genuine by using it as such, he cannot after v/ards deny its 
 authenticity when his opponent desires to use it.^ Where an 
 admission was on the authority of a decision which has l)een 
 overruled, and was to the prejudice of the party making it, 
 he is held not to be bound by it.'" 
 
 ' Roberts v. Trawick, 22 Ala. 15 N. H. 143 ; Rice v. Railroad 
 
 490. Bank, 7 Humph. (Tenn.) 39. 
 
 ' Beebe v. De Baan, 8 Ark. 510. ' Gridley v. Connor, 4 La. Ann. 
 
 ' Wynn v. Garland, 16 Ark. 440. 416 ; Edson v. Freret, 11 id. 710. 
 
 * Carter v. Bennett, 4 Fla. 283 ; ' Matthew-s v. Dare, 20 Md. 248. 
 
 Stewart v. Connor, 13 Ala. 94; " Martin y. Peters, 4 Robt. (N. Y.) 
 
 Houghtaling-15. Kelderhouse.l Park. 434. 
 
 (N. Y.) Cr. 241. ^ Robeson v. SchuylkiU Nav. Co., 
 
 " Ray V. Bell, 24 111. 444 ; Young- 3 Grant (Penn.) Cas. 186. 
 
 V. Foote, 43 111. 33 ; Pecker v. Hoit, ^^ Hays v. Cage, 2 Tex. 501.
 
 51() EVIDENCE. [ciIAr. XV. 
 
 Evidence that a party is of poor health and .subject to 
 depression of spirits is adiiiissil)le to invalidate his declara- 
 tions, at such a time, as to his all'airs.' So it may be shown 
 that the admission was fraudulently or coUusively made, and 
 in that event it is not entitlecl to any weight with the jury.- 
 
 Sec. 163. Parties to Negotiable Paper generally. 
 
 In MM action u[)()n a nolc, the declarations of a nominal 
 })laintiir, uiatle before lie parted n'/'/k Jtis inlei'est in the note, 
 are admi.ssil)le in evidence ; and without proof of the time 
 when he parted with his interest, his declarations, made at 
 any time before suit brought, are admissii)le.3 This is upon 
 the principle that the admission is made by a privy in 
 estate, but is confined entirely to admissions made while 
 the ])ro[)rietary interest existed.'* Thus, a declaration by a 
 testator that certain notes, which are particularly s[)ecitied, 
 were advancements to one of his children, is against his in- 
 terest, althougli the notes were out f)f date, and is conse- 
 quently admissible in evidence against tlie child's re[)resenta- 
 tives.^ But the declarations of a merchant's clerk, made to 
 a notary public, cannot be admitted in evidence to show who 
 was the holder of a note, unless such declarations were im- 
 mediately connected with the solemnity of protesting.^ Nor 
 is the acceptance of security for all notes in which a party 
 may have become liable, evidence that he authorized the sign- 
 ing of his name to notes not i)articularly specified in the deed, 
 nor identified as having l)ecn secured there])y. An adnji.s- 
 sion by a i)arty that he has been fully indemnified means ?«- 
 demnified arjainsl legal liahiliLies ; and even though he knew 
 at the time that the person from whom he received the secu- 
 rit}^ had forged his signature, it is not to be construed as 
 a[)i)lical)le to the forged signature.''' In an action by an 
 indorsee of a negotiable note, where the plaintiff' is shown 
 
 ' Brackett v. Wait, 6 Vt. 411. * Smith v. Do Ruitz, R. & M. 212 ; 
 
 ' Ramsbottom v. Phelps, 18 Conn. Phillips v. Cale, 10 Ad. & El. 106. 
 278. ' West V. Bolton, 23 Ga. 531. 
 
 * Sally V. Gooden, 5 Ala. 78 ; Clews ' Burt v. Gwinn, 4 H. & J. (Md.) 
 •0. Kehr, 90 N. Y. 633. 507. 
 
 ' Walters v. Munroe, 17 Md. 150.
 
 SEC. 163.] ADMISSIONS. 517 
 
 to have received it of the former holder after it became due, 
 iind he fails to show that he paid value for it, the suit is pre- 
 sumed to be prosecuted for the beuetit of the foruier holder ; 
 and his declarations made while he held the note, and after it 
 became ;payable, that it was given upon an illegal considera- 
 tion, are admissible for the defendant.' But evidence of an 
 admission by the defendant that he had given the plaintiff a 
 note of the same amount with the note produced at the trial, 
 which he would pay if time were given him, is not sufficient 
 evidence of the execution of the note produced.^ Nor in a 
 suit by the holder against the acceptor of a draft payable to 
 a certain person or his order, can the plaintiff prove his own 
 declarations, or the admission of any one who was not a 
 party nor a witness in the cause ; nor is the mere rccci[)t of 
 such person, stating the fact that the draft was made lor his 
 accommodation, competent testimony. But any evidence 
 given tending to show that a draft was accommodation paper 
 should be submitted to the jury.^ The declarations of a 
 deceased party to a note are inadmissible, although he might 
 l)e a witness if living.' An acknowledgment made )jy the 
 maker of a note to one who once held it as indorsee, 
 will inure to the benefit of the holder.^ Thus, in an action 
 against three joint makers of a promissory note, the admis- 
 sions of one of the defendants was held competent evidence 
 against his co-defendants, at least until the inferences arising 
 from the face of the note are rebutted, and it is shown that 
 the party making the admissions is not jointly interested 
 with the others.'' In an action on a due bill ))y a payee, a 
 paper signed by the plaintiff, admitting that he had not, 
 then or at any time, any interest in the due bill, that it was 
 made payable to him without his knowledge or consent, and 
 that he did n(>t know the owner, and certifying that the 
 maker had informed him that the bill was given for money 
 
 * Brisbane v. Pratt, 4 Den. (N. Y.) " McRae v. Kennon, 1 Ala. 29.'). 
 63. e Qjj^^p ^_ j)jij^ "27 Ala. 553 ; 
 
 * Palmer v. Manning-, 4 Den. (N. Bound v. Lathrop, 4 Conn. 336 ; 
 Y-) 131. Barrick v. Austin, 21 Barb. (N. Y.) 
 
 3 Wilt V. Snyder, 17 Penn. St. 77. 241. 
 
 * Duncan v. Seaborn, 1 Rice (S. 
 C), 27.
 
 518 EVIDENCE. (( lIAr. XV. 
 
 lost at cards, is admissible lor (he defendant as an admission 
 of a party in interest or a trnsiee or agent binding upon the 
 real owner in the aliseiice of any evidenee that he was not 
 the real owner.' So in an action npoii a note, which ma- 
 tured after the decease ol" tlic indorser, against his adminis- 
 trator, it is competent to prove notice by proving the 
 admissions of the administrator, unless the administrator is 
 present and is willing to testify to tlu; i)oint.- But an ad- 
 mission by the party liable upon a sealed bill, of a balance 
 due on it, is not an acknowledgment of its execution ; and, 
 if it were, would not obviate the necessity of ^troving that 
 fact by the sul)scribing witness, or accounting for his ab- 
 sence.^ 15ut i)roof that the defendant in an action on a 
 note said, on l)cing shown the note, that " it Avas right," and 
 he would not object to "its coming in on the trial," is suf- 
 ticient to authorize the admission of the note in evidence.'* 
 
 Where the defense to an action upon an assigned note is, 
 that the defendant w^as a mere accommodation drawer, an 
 account, which had been cxhiliitcd by the party in interest 
 on another trial between himself and others, explaining the 
 origin of the note, and admissions made by him at the same 
 trial, are proper evidence for the jury ; but not his attorney's 
 letters relative to this previous trial. ^ Nor are the declara- 
 tions of the maker of a note given for an old one at the 
 time of making the note, admissible to affect his legal liability 
 on the note ; but they arc admissible to show whether the 
 new note is entirely a new contract, or an extension of the 
 old one.*^ It is not conclusive against the maker of a note 
 that he has acknowledged that the signature to it was his.^ 
 The admissions of the maker arc not admissible against an 
 indorser, even though he indorsed the note at its inception Jis 
 promisor.® Nor are the admissions of the maker of a note 
 admissible in an action by the payee against the surety when 
 
 ' Hogan V. Sherman, 5 Mich. 60. ' Nutter v. Stover, 48 Me. 163. 
 
 « Duncan v. Watson, 10 Miss. 121. ' Hall v. Iluse, 10 Mass. 39 ; 
 
 ' Hogland v. Sebring, 4 N. J. L. Salem Bank v. Gloucester Bank, 17 
 
 10.'). iJ. 1- 
 
 * Suydam v. Combs, 15 N. J. L. * 3aker v. Brigg-s, 8 Pick. (Mass.) 
 133. 122. 
 
 * Iglehart v. Jemegan, K! 111. olB.
 
 SEC. 163.] ADMISSIONS. . 519 
 
 such admissions were made in the aliscnce of the surety.' 
 In an action by the pawnor of a note more than six years 
 old, to recover damages of the pawnee for not returning it 
 after the debt for which it was pledged was paid, the defend- 
 ant cannot give in evidence the declaration of the maker 
 that nothing was due thereon to the plaiutitlV- 
 
 Where evidence has been introduced to show that a note 
 Avas one of several given by a person since deceased, in pur- 
 suance of a general design to settle his estate, declarations 
 of the maker in relation to the consideration of such notes 
 made a few days after they were given, are incompetent.^ 
 Nor in an action against one of several joint makers are the 
 statements of another of the makers admissible as evidence 
 for the defendant, when objected to by the plaintiff.^ But 
 although a general partnership between two is not estab- 
 lished by the admission of one of the alleged partners, yet 
 where two are sued, as co-promisors, upon a note signed by 
 one, and there is proof of an admission of liability by the 
 other, such admission is evidence that the signing party was 
 the agent to make the promise.^ 
 
 Where one of two defendants, sued jointly on a note, 
 pleads and proves his discharge in bankruptcy, evidence of 
 his admissions and declarations, made while he was in fact 
 insolvent, but before he obtained his discharge, is admissible, 
 notwithstanding he may be the principal on the note, and 
 the other defendant the surety.'' 
 
 Admissions made by the payee of a note, through whom 
 the plaintift' derives title as indorsee, are not evidence to 
 charge the maker, although his admission made on a previ- 
 ous day, in discharge of the maker, had been given in evi- 
 dence by the latter ; the latter admissions not being made in 
 the same conversation.''' 
 
 In an action brought in the name of the payee of a prom- 
 
 > Dexter v. Clemens, 17 Pick. ' Painter v. Austin, 37 Penn. St. 
 
 (Mass.) 175. 458. 
 
 ^ Thomas v. Waterman, 7 Met. ' Brown v. Munger, 16 Vt. 12. 
 (Mass.) 227. ^ Perry v. Graves, 12 Ala. 246. 
 
 ' Hubbard v. Barker, 1 Allen See also Russell v. Doyle, 15 Me. 
 
 (Mass.), 99. 112 ; Clark v. Peabody, 21 id. 500 
 
 * Nye V. Grubbs, 16 Miss. 643.
 
 520 KVIDKNCE. [cuAr. XV. 
 
 issory note not ncg(>ti:il)lo, lor the benefit of the assignee, 
 jiirainst the maker, the declarations of the payee, made after 
 the assi«>-nment, and notice thereof to the maker, arc not ad- 
 missible in favor of the defendant.' Nor in a suit by the 
 aysiirnee of the payee of a promissory note can the defend- 
 ant "-ive cvident-e of declarations made l)y the ])aye(\ after 
 his assi<»'nment, prejudicial to the interests of the plaintill'.'^ 
 Nor in the case of connnercial paper, negotiated before due, 
 are the admissions of the payee admissible to impeach the 
 consideration.' But declarations by the payee of a note, 
 executed by a married woman and transferred before nintu- 
 ritv, that he had taken it for her husband's debt, are admis- 
 sible against the indorsee.^ 
 
 Admissions made by the payee of a negotiable note, made 
 tchile he retains it in Ids j^ossession, are admissible, although 
 he may previously have written thereon his indorsement to 
 a third person, in whose name the action is brought.^ So, in 
 an action by an indoi-see against the maker of a note trans- 
 ferred when overdue, the declarations of the indorsee may 
 be o-iven in evidence" by the maker ; but if he elects to call 
 him as a witness, he waives his right to give his declaration 
 in evidence.^ Declarations by the payee of a promissory 
 note to the attesting witness, at the time of his attestation, 
 but in the absence of the maker, are not admissible against 
 the maker to explain the payee's motive in wishing to have 
 it attested.' But declarations made by the payee of a note 
 while he was the owner arc not admissiljle to affect one to 
 whom he sul)sequcntly transfers it.^ Thus, in a suit by a 
 bank against the payee and indorser and an accommodation 
 indorser of a promissory note, the dispute being as to the 
 object of the note, and for what lial)ilities it was intended as 
 
 ' Scripture v. Ncwcomh, 16 Conn. ' Lincoln v. Lincoln, 12 Gray 
 
 588. (Msiss.), 45. 
 
 » Fleming v. Newman,' 5 Blackf. " Beach v. Wise, 1 Hill (N. Y.), 
 
 (Iiid.) 220. 612 ; Paig-e v. Cag-win, 7 id. 361 ; 
 
 * Stoneri). Ellis, 6 Ind. 152. Osborn v. Robbina, 37 Barb. (N.Y.) 
 
 ♦ Pilfher v. Kerr. 7 La. Ann. 144. 481 ; Crayton v. Collin.s, 2 M'Cord 
 » Whitier v. Vo.se, 16 Me. 403. (H. C), 457 ; Washburn v. Ramsdell, 
 
 • Merrick v. Parkman, 18 Me. 17 Vt. 299. 
 407.
 
 SEC. 164.] ADMISSIONS. 521 
 
 <3ollutenil, admissions made by the former are not admissi- 
 ble us against the latter.^ But in an action upon a note, 
 ■where the signature is denied, the defendant may show the 
 declarations of tlie phiintifi' on tlie occasion of taking the 
 note, and then prove sucli declarations to be false.^ 
 
 Where a promissory note becomes tlie property of one 
 not a party to it and this is known to the maker, and the 
 holder commences an action U[)on the note in the name of 
 the payee, the maker camiot give in evidence admissions 
 made by the payee subsequent to the commencement of the 
 suit.3 
 
 Sec. 164. Admissions by an Indorser. 
 
 An admission by an indorser that he indorsed a draft 
 drawn by the defendant, for a certain sum, at a certain time, 
 the sum and time corresponding with the draft in suit, is 
 jwima facie sufficient, in an action against him thereon, to 
 establish the fact that ho indorsed the draft in suit,"* So the 
 insolvency of the maker of a note may be established, in an 
 iiction against the indorser, by the hitter's admissions to that 
 eftect.^ The admission of an indorser after a note is over- 
 due, made to an indorsee, that he knew that no demand had 
 been made upon tlie maker, and a promise made by him to 
 pay the note notwithstanding such omission, is admissible 
 in favor of a subsequent indorsee, in an action ])rought by 
 him against the indorser.^ In an action by the indorser of 
 a dishonored bill against the acceptor, admissions made by 
 the indorser while he owned the bill are admissible in favor 
 of the acceptor.'^ But admissions made by the indorser of 
 a note or bill which are not known to the indorsee cannot 
 be used in evidence against him.^ The declaration of an 
 indorser that the maker told him that payment had been 
 duly demanded of him is not adinissi])le to establish the fact 
 of demand and notice ; ^ nor are his admissions affecting the 
 
 * Highland Bank v. Wynkoop, * Raplee v. Morgan, 3 111. 561. 
 Hill & D. Supp. (N. Y.) 243. « Rogers v. Hackett. 21 N. H. 100. 
 
 '' Depue V. Place, 7 Penn. St. 428. ' Shirley v. Ladd, 9 Me. 83. 
 
 ' Hough V. Barton, 20 Vt. 4,55. * Blancjour 7). Tntt, 32 Mo. 576. 
 
 * Hyer v. Smith, 3 Cranch (U. S. ' Tamer v. Dunell, 9 Mass. 332. 
 C. C), 437.
 
 522 EVIDENCE. [CIIAP. XV. 
 
 validity of the note admissible, ulthough it is shown that he 
 still retains an interest in the note.' Bnt the adniiasions of 
 an indorser or assignor of a note, made al a time v:Jien ho laid 
 ail interest and rirjJd of adion tJierein, are adinissihic* Bnt 
 admissions made by him after his interest in the note has 
 ceased are not admissible, aa this wonld place it within the 
 })ower of a person to defeat the rights of another by a mere 
 naked statement, without the sanctity or responsibilities of an 
 c)ath.3 
 
 Sec. 165. Admissions made by a Former Owmer of a Note. 
 
 Admissions made l)y the holder of a note, before it was 
 due juid before indorsement, and which was negotiated before 
 it Avas due, are not admissible against the indorser,-* unless 
 he had express notice of the defects to which the admission 
 relates at the time when it was indorsed to hini.^ But when 
 the note was overdue at the time of its indorsement, decla- 
 rations of a prior holder, made wliile lie held the note, after it 
 was due^ are admissible in evidence to show payment to such 
 l)rior holder or any right of set-off which the maker had 
 against him. But such declarations made by the holder 
 before he took the note are inadmissil)le. So such declara- 
 tions made by the holder after assigning the note to one 
 from whom the plaintiff since took it are inadmissible, unless 
 the assignment was conditioned to be void upon the payment 
 to the assignor of a less sum than the amount due on the 
 note, in Avhicli case the declarations are admissible in evi- 
 dence for the defendant to the extent of the interest remain- 
 ing in the prior holder.^ 
 
 As a general rule, admissions made by a person after he 
 has parted with his interest in a bond, note or other security, 
 cannot be given in evidence in prejudice of the assignee.'^ 
 
 ' Butler V. Damon, 15 Mass. 223. * Di-umond v. Smith, 3 Head. 
 
 'Abbott V. Muir, 5 Ind. 444; (Tenn.) 389. 
 
 Williams v. Judy, 8 111. 282. * Glunton v. Griggs, 5 Ga. 424, 
 
 ^ Lester 1). Baker, 6 Blackf. (Ind.) 'Bond v. Fitzpatrick, 4 Gray 
 
 439 ; Porter v. Rea. 6 Mo. 48 ; Bart- (Mass.), 89. 
 
 lett V. Marshall. 2 Bibb (Ky.), 467 ; ' Cleveland v. Davis, 3 Mo. 331 ; 
 
 Matthews v. Houghton, 10 Me, 420. Smith v. Shank, 18 Barb. (N. Y.) 
 
 344.
 
 SEC. 165.] ADMISSIONS. 523 
 
 But declarations of a former holder of a l)ill transferred to 
 the i^lainiiff after dishonor^ are competent to show that before 
 such transfer the defendants were discharged from liability.^ 
 Although it is generally true that the declarations of a 
 former holder of a l)ill, made while it was in his hands, are 
 not admissilile against a party who took it bona fde, in the 
 course of business, before it l)ecame due, yet cohere the, de- 
 fense^ in an action hy the indorsee against the acceptor of a 
 bill, is that the acceptance loas procured by fraud, and ivas 
 without consideration, and in support of this defense the de- 
 fendant offered in evidence the declarations of a former 
 holder of the l)ill. since dead, made while it was in his 
 hands, it was held that such declarations were admissible for 
 that purpose, l)ut not to affect the plaintiff, unless such 
 holder, from whom the plaintiff received it, had knowledge 
 of the fraud at the time he took it.^ 
 
 In an action by the payee against the drawer of a bill 
 not accepted, the declarations of the drawee, made at the 
 time of presenting the bill, that he had no funds of the 
 drawer in his hands, are not admissible in evidence ; the 
 drawee, in such case, not being the agent of the drawer.* 
 But the declarations of the payee of a negotiable note, made 
 while he retains it in his possession, are admissible, although 
 he may previously have written thereon his indorsement to a 
 third person, in whose name the action is brought.* So, in 
 an action by an indorsee against the maker of a note trans- 
 ferred when overdue, the declarations of the indorsee may 
 be given in evidence by the maker ; l^ut if he elects to call 
 him as a witness, he thereby waives his right to give his 
 declaration in evidence.^ But in the case of commercial 
 paper, negotiated before due, the declarations of the payee 
 are inadmissible to impeach the consideration.*^ But decla- 
 rations by the payee of a note, executed by a married woman, 
 and transferred before maturity, that ho had taken it for her 
 husband's debt, are admissible against the indorsee.'^ 
 
 * Hollister v. Reznor, 9 Ohio, 1. * Merrick v. Parkman. 31 Me. 407. 
 
 * Roe V. Jerome, 18 Conn. 138. * Stoner v. Ellis, 6 Ind. 152. 
 
 ' Carle v. White, 9 Me. 104. ' Pitcher v. Kerr, 7 La. Ann. 144. 
 
 * Whitier v. Vose, 16 Me. 403.
 
 ,'r2'[ EVIDKNCH. |( llAl'. XV. 
 
 Ill ail jKlioii brought in the uaiiic of the payt'O of ii prom- 
 issoiy note not ncirotiahlo, for tlu- hL'nclit of the assignee, 
 iigainst the maker, the (Krlarations of the payee, made after 
 till' assifjwiicnt, and notice thrreof to the maker, are not ad- 
 niissihU' in favor of the defendant.' Nor in a .suit by the 
 assi'T'iiee of the payee of a promissory note can the defend- 
 ant give evicU'iiee of deehirations made by the payee, after 
 Ills assi(jn)n('nt, prejudieial to the interests of the plaintilf.a 
 
 In an action of debt against A. and B. on a proinis.sory 
 note, alleged in the declaration to have been madt; by the 
 <lefendants, A. made default, and B. pleaded nil dclM under 
 oath. It was held on the trial of the i.ssuc with B. that the 
 plaintiff might prove the partnership of the defendants at 
 the date of the note, and A.'ssul>sequcnt admissions respect- 
 ing the execution of the note.^ But where A., an indorser 
 of a sealed note, indorsed it in blank to B., who delivered it 
 to C. without indorsement, and C. in like manner sold it to 
 D., and D., having written over A.'s name an indorse- 
 ment to himself, sued A. as indorser, it was held that B. 
 was a competent witness for A. : and that con.sequcntly his 
 declarations, while he held the note, as to the amount he 
 paid for it, Averc inadmissible.^ 
 
 It is com[)eteiit to show by the admissions of a party that 
 a debt owed by him has not been paid. Thus the principal 
 <)l)ligor in a bond to the United States gave to the colUx-tor 
 who took the bond a draft of the amount. Suit was brought 
 on the bond in the United States court, and on the draft, in 
 the name of the collector, in a State court, and it was agreed 
 that judgment by default .should l)e entered on the ])ond, and 
 that no other further proceedings should be had on the draft. 
 Judjrment on the bond remained unsatislied, and the coUcc- 
 tor, who had paid the amount to the United States, brought 
 another action on the draft. It was held that the plaintiff 
 might repel any i)resumption, arising from such agreement, 
 that the draft had been paid or canceled, by proof that the 
 
 ' Scripture v. Newcomb, 16 Conn. ' EnHminger v. Mar\'in, 5 Blackf. 
 
 588. (Ind.)210. 
 
 ' Fleming v. Newman, S^BIackf. * Lynn v. Jeter, 7 Blackf. (Ind.) 
 
 <Ind.) 220. 300.
 
 SEC. 165,] ADMISSIONS. 525 
 
 defendant head afterwards admitted that the draft was justly 
 due and unpaid. ^ 
 
 Wliere a note, payable on demand, was indorsed and 
 transferred by the payee, it was licld that the declarations 
 of the indorser, prior to the indorsement of the note, and in 
 reference to it, were admissiljle for the purpose of showing 
 that he was to be liable without demand or notice, and es- 
 pecially is this the case when the admissions ave connected 
 with suljsequent conduct and declarations having the same 
 tendency."- Ihe consideration or validity of a note-bill, 
 upon any ground, may be attacked by admissions made by 
 the owner thereof at any time while he was owner, and 
 after the note was due. Thus the payee of a note, payable 
 to himself or bearer, stated, on the day after its date, and 
 while he held it in his possession, that he had sold it, but 
 that he had won the amount from the maker at faro, and in 
 an action by the bearer of the note it was held that the 
 declarations of the payee were admissible to show that the 
 note was iriven for a g-amino- consideration.^ But if the 
 note was not due, and was subsequently negotiated before it 
 became due, such admissions cannot be received to defeat the 
 note, because to admit them would operate unjustly upon 
 an innocent purchaser, and would destroy the value of com- 
 mercial paper. Thus B., having possession of a promissory 
 note, payable to H. or bearer, transferred it, before due, to 
 D., and, by writing on the back of the note, guaranteed its 
 payment. B. being dead, in a suit l)y D. against the drawer 
 it was held that B.'s declarations, made after the transfer, 
 were inadmissible in behalf of the defendant to invalidate 
 the note, by showing that it was given for a gaming consid- 
 eration.'' 
 
 In an action by the indorsee against the maker of a prom- 
 issory note, which was sold by the payee at a rate exceed- 
 ing; the leo-al rate of interest, evidence of the declarations of 
 the payee, who was dead, that the note was an accommoda- 
 tion note, lent to him by the maker, is not admissible.^ 
 
 ^ M'Cobb V. Healy, 17 Me. 158. * De Bruhl v. Patterson, 12 Rich. 
 
 " Fullerton v. Rundlett, 27 Me. 21. (S. C.) 363. 
 
 ^ Sharp V. Smith, 7 Rich. (S. C.) 3. ''Kent'U.Walton,7Wend.(N.Y.)256.
 
 520 KVIDKN'CE. [chap. XV. 
 
 Tlu' pavco of a note, after it was duly made and delivered, 
 n;;ive it It) the maker to keep until certain acts, to be done 
 by the maker, were performed, and the maker subsequently 
 refused to redi-liver it to the payee. It was held, in an 
 livt'unx on the note by the payee, that the circumstances under 
 which the note came to the possession of the maker might 
 ])e o-iven in evidence by him.' 
 
 The indorser of a note, before taking it, sent a messenger 
 to the maker, with instructions to inquire if it were a busi- 
 ness note. The answer was returned that it was. It was 
 held, in a suit on a note to wliiili the defense set up was that 
 it was an accommodation note, thai the foregoing facts hav- 
 uvj: been proved, evidence might properly be admitted, com- 
 in*'- from auy person who made the declaration, that the 
 messeno-cr on his return stated this answer to the indorsee.^ 
 
 Tiic mere oral declaration of a deceased maker ot a note, 
 made during his last illness, " that the note, though nomi- 
 nally payable to A., was really for the l)enelit of B.," is 
 admissible to show that the note, in fiict, was the property 
 of B.3 
 
 Sec. 166. Admissions of Persons Acting together Illegally. 
 
 Where two or more persons are associated for the same 
 illeijal purpose, an act or declaration of one of the parties 
 in reference to the common object, and forming part of the 
 res r/estf£, may be given in evidence against the other.'* 
 Thus, on an indictment against one of several who made a 
 
 ' Garlock v. Geortner, id. 198. Oldham v. Bentley, 6 B. Mon. (Ky.) 
 
 ^ Robbins v. Richardson, 2 Bosw. 428 ; State v. Hogan, 3 La. Ann. 
 
 (N. Y.) 248. 714; State v. Havelin. 6 id. 167 1 
 
 ' Morei.i v. Solomons, 7 Rich. (S. State v. Soper, 16 Me. 293 ; Aldiich 
 
 C.){\1. 7). Warren, id. 465; Commonwealth 
 
 ♦ American Fur Co. v. United v. Turion, 8 Gray (Mass.), 375; 
 
 States, 2 Pet. (U. S.) 3.58; Lincoln Commonwealth v. Brown, 14 id. 
 
 V. Claflin, 7 Wall. 132 ; Stewart v. 419 ; People V. Pitcher, 15 Mich. 
 
 State, 26 Ala. 44 ; Johnson v. State, 397 ; Mask v. State, 32 Miss. 405 ; 
 
 29 Ala. 62 ; Glory v. State, 13 Ark. Moers v. Martin, 8 Abb. (N. Y.) Pr. 
 
 236 ; Clinton v. Estes, 20 id. 216 ; 257 ; 17 How. Pr. 280 ; Patton v. 
 
 State V. Ross, 29 Mo. 32 ; State v. Ohio, 6 Ohio St. 467 ; Fonts i). State, 
 
 Nash, 7 Iowa, 347 ; Colt v. Eves, 12 7 id. 471 ; Preston v. Bowers, 13 id. 
 
 Conn. 243 ; State i;. Grady, 34 id. 1 ; State v. Thibeau, 30 Vt. 100. 
 118 ; State v. Myers, 19 Iowa, 517 ;
 
 SEC. 167.] ADMISSIONS. 527 
 
 joint iissault, the acts of the other may be given m evidence.' 
 The rule may be said to be that, when there is a comm unity 
 of interest and design, tlie admissions or statements of any 
 of the parties relating to the connnon object are admissible 
 either in civil or criminal proceedings.- Thus, where sev- 
 eral persons jointly attempt to perpetrate a fraud, the decla- 
 rations of one of them, made during the progress and in the 
 prosecution of the joint undertaking, or explaining acts done 
 in furtherance of it, are admissible against the others.^ But 
 before such declarations of a person not a party to the action 
 can be admitted, the common purpose, and his connection 
 therewith, and the connnon unlawful design, must l)e shown ; 
 and evidence which is merely admissible upon the question 
 of the common illegal purpose, but is insufficient to estab- 
 lish the fact, is not sufficient to make such declarations ad- 
 missible, and, for this purpose, the question whether such 
 connnon and uidawful design has Ijeen established is for the 
 court.* In the case of conspiracy, proof of a division of the 
 protits of the fraudulent enterprise is sufficient evidence of a 
 combination to let in the evidence of one conspirator against 
 the rest.^ But admissions by one made after the undertak- 
 ing is completed are not admissible against the others,'' nor 
 after the death of the person making the admission.'^ 
 
 Sec. 167. Admissions by Co-plaintiffs or Co-defendants. 
 
 The better rule seems to be that the admission of one 
 plaintiff in an action is not admissible against his co-plaintiffs 
 unless their interest in the subject-matter of the action is 
 
 * United States v. Johnston, 1 Y. ) 403 ; Burke v. Miller, 7 Cush. 
 Cranch (U. S. C. C), 237. (Mass.) 547. 
 
 '^ Clayton v. Anthony, 6 Rand. » Kimmel v. Geeting-, 2 Grant's 
 
 (Va.) 285 ; Snyder v. Laframoise, 1 Cas. (Penn.) 125 ; Kelsey v. Murphy, 
 
 111. 268. 26 Penn. St. 78. 
 
 * Jenne v. Joslyn, 41 Vt. 478 ; « Clinton v. Estes, 20 Ark. 216 ; 
 Lee V. Lamprey, 43 N. H. 13 ; Peter- Lynes v. State, 36 Miss. 617 ; Ben- 
 son V. Speer, 29 Penn. St. 479 ; ford v. Sanner, 56 Penn. St. 336 ; 
 Patton V. Freeman, 1 N. J. L. 113 ; Hunter v. Com., 7 Gratt. (Va.) 641. 
 Anthoi-p V. Comstock, 2 Paige Ch. '' Gaunce V. Backhouse, 37 Penn. 
 (N. Y.) 482. St. 350. 
 
 * Jones V. Hwrlburt, 39 Barb. (N.
 
 5i'8 
 
 EVIDENCE. 
 
 [chap. XV. 
 
 joiiU.^ Nor can the admission of a merely nominal i)laintifr, 
 iHude after the action was brought, be given in evidence to 
 dclV'iit the action. 2 And the same rnle prevails as to co- 
 dclcndunts,' and the admission of one is evidence against the' 
 olhcr when they are .sued upon a joint contract.' But whc-o 
 the contract is several, and one of two persons liable thereon 
 is sued alone, admissions made l)y the other are not admis- 
 sible.^ In actions of tort, as in trover, the admission of one 
 defendant is admissible against him, but not against the 
 othcr,*^ although the other defendant should generally ask 
 the court to direct the jury not to consider the evidence 
 as allecting liim, or it will not furnish a ground for a new 
 trial.' 
 
 Sec. 168. Admis.sion of One of Two or more Persons United in Interest. 
 
 / xVn admission of one of two or more person s who wer e at 
 
 /the time of the admission jointly interested i n the su bjeci- 
 
 l matter to which the admission relates, is admissible against 
 
 \ the others.'^ Thus, after prima facie evidence of a partner- 
 
 ' Baswell v. Blackman, 12 Ga. • Edgerton v. Wolf, 6 Gray 
 591; Raton v. Nichols, 22 Ark. 244; (Mass.), 453; Hodges v. Hodges, 2 
 Banium v. Hackett, 35 Vt. 77 ; Juby Cus>h. (Mass ) 455. 
 V. Brigham, 9 Humijh. (Tenn.) 750; 
 Armstrong v. Farrar, 8 Mo. 627 ; 
 Hurst V. Robinson, 18 Mo. 82. The 
 admission of a legatee under a will, 
 as to the mental capacity of the tes- 
 tator, is not admissible against the 591 ; Oviattw. Sage,7Conn. 95 ; Rea- 
 gan V. Green, 13 Penn. St. 508. We 
 have always i-egarded this rule as 
 unsound and not sustainable upon 
 principle. In the case of pai-tners 
 there is not only a joint intei-est, 
 but each pai-tner in the business of 
 the i)ai"tnei"ship is an agent for the 
 others, so that his admissions very 
 properly are held to be binding 
 upon all. But in the case of joint 
 ownership or interest, where no 
 partnership exists, neither owner is 
 an agent for the other, and there 
 seems to be no reason, therefore, 
 why the admission of one should 
 
 ' Hubbell V. Bissell, 2 Allen 
 (Mass.), 196; Williams v. Taunton, 
 125 Mass. 34. 
 
 • Bakeney v. Ferguson, 14 Ark. 
 641 ; Barnwell v. Blackman, 12 Ga. 
 
 others. Thompson d. Thompson, 13 
 Ohio St. 356; Irwin v. West, 31 
 Penn. St. 1.57. 
 
 ^ Sargeant ■?'. Sargeant, 18 Vt. 
 371 ; Chrisholm v. Newton, 1 Ala. 
 371 ; Sykes v. Lewis, 17 Ala. 241 ; 
 Mayer v. Inman, 2 Swan (Tenn.), 
 80 ; Dazy v. Mills, 10 111. 67 ; Brown 
 V. Foster, 4 Ala. 282. 
 
 ' Lenhart v. Allen, 32 Penn. St. 
 312 ; Biu-nham v. Sweatt, 16 N. H. 
 418 ; Walling v. Roosevelt, 16 N. J. 
 L. 41 ; Quintan v. Davis, 6 Wheat. 
 (Penn.) 169. 
 
 * Mni-tin V. Root, 17 Mass 222. 
 
 ^ Bak^r v. Briggs, 8 Pick. (Mass.) bind the other, and the rule to that 
 122. effect in New York seems to best
 
 SEC. 169.] ADMISSIONS. 529 
 
 shipjias^been ^iyen, the admission of one of tlie partners is 
 admissible against the others, ^ although the partner niakin<>- 
 the admission is not a party to the suit.^ But tlie admission 
 must be made while the partnership still exists ; if made after 
 its dissolution, it is not admissible against the others,'' unless, 
 perhaps, to prove payment of a debt due to the firm.^ The fact 
 that it is against interest must be established, and the admis- 
 sion of one of two or more owners of land or personal prop- 
 erty are not admissible against the other, because their 
 interests are not joint, but several. ^ Thus, the admission 
 of one of several owners of a vessel is not admissible ao-ainst 
 the others,^ nor are the admissions of one tenant in common 
 admissible against the other, "'^ nor is the admission of a life 
 tenant admissible against a person claiming by title para- 
 mount ; ^ but the admission of one joint tenant is admissible 
 against the other. ^ In order to make such an admission 
 admissible against the other joint owners, according to the 
 English cases, the parties must have a joint interest in the 
 decision.^" 
 
 Sec. 169. Admissions by Husband or Wife. 
 
 A husband can be charged by the contract or admission 
 of his wife only in consequence of some authority actually- 
 given, or necessarily implied from the circumstances under 
 which she acts. But the circumstances under which the 
 plaintiff 's property went into possession of a defendant ad- 
 accord with principle. Lewis v. » The New Orleans, 106 U. S. 13. 
 Woodworth, 2 N. Y. 512 ; Whitcomb « McMillan v. Cox, 36 Me. 95 ; 
 V. "Whitney, 2 Doug. 652 ; Vicary's Page v. Swanton, 39 id. 400 ; The 
 Case, Gil. Ev. 51. New Orleans, 106 U. S. 13. Unless 
 
 ' Nicholls V. Dawding, 1 Starkie, they navigate the vessel together ; 
 81. But judge must first determine Blackstock v. Leidy, 16 Penn. St. 
 whether there is prima facie evi- 335. 
 
 dence of a partnership. Hilton v. ' Dan v. Brown, 4 Cow. (N. Y.) 
 McDowell, 87 N. C. 364. 483. 
 
 "" Wood V. Braddick, 1 Starkie, 81. ^ Hitt v. Roderick, 4 W. & S. 
 But this is denied in Rooth v. Quin, (Penn.) 221. 
 7 Price, 198. » Moore v. Pearson, 6 W. & S. 
 
 ^ Watson V. Woodman, L. R. 20 (Penn.) 51. 
 Eq. 721. JO Vicary's Case, Gilb. Ev. 61 ; Le 
 
 * Pritchard v. Draper, 1 R. & My. Blanc, J., in 11 East, 581. 
 191. 
 
 34
 
 530 EVIDENCE. [chap. XV. 
 
 ministrutrix may be shown in (Ictiniic, by proving a lecjuest 
 iVoni the del'cndunt to the phiintitl" to that etlcct in the life- 
 time ot" her hnsbund.' But its the wife niuy net as the agent 
 of the husband, declarations or admissions made by her 
 while so acting, either under express or ini[)lied authority, 
 are admissible against the hnsljand.^ Admissions made by 
 the wife are admissible against her in an action brought by 
 her in her own nanie,-^ So they are admissible where she 
 is joined with her husband as a party to the suit.' So her 
 admissions are competent evidence when her trustees sue or 
 are sued on her account.^ But not if the husband is the 
 hostile part}'." Her admissions are not admissible for tlie 
 husband exee[)t where they form a part of the res (jeslca.'' 
 But in many of the states the legal status of the wife is 
 extended by statute, and she is invested with the right to 
 sue and be sued, and may testify for or against her husband, 
 and under such statutes her admissions would be evidence 
 where the}' would not bo at the common law. 
 
 The admissions of the vnfe, as a rule, will bind the 
 husband only where she had authority to make them.^ 
 This authority does not result, by mere operation of law, 
 from the relation of husband and wife, but is a question of 
 fact, to be found by the jury, as in other cases of agency ; 
 
 ' Rochelle v. Harrison, 8 Port. ^ Morrell v. Crowley, 17 Abb. Pr. 
 
 (Ala.) 351. But, as stated, except (N. Y.) 76. 
 
 where an agency is established, the 4 p^^]^ ^,^ Hopkins, 2 Bailey (S. 
 
 admissions of the wife cannot bind q ) 493 
 
 the husband or be u.sed against him. » tt t^ 1 , ttt-, r.-- 
 
 - - , ^ , J ,„, , Hanson v. Parker, 1 Wils. 257 ; 
 
 (jueener v. Morrow, 1 Cald. (Tenn.) ,, mi » -mi t r^ nnr. 
 
 r . T • 1 ^ i> T^ <:, ^^y ^- Taylor, b M. & G. 266. 
 123 ; Logan v. Lmk, 4 E. D. S. 
 
 (N. Y. C. P.) 63; Lay Grae v. ' Baylor on Ev., § M'i. But this 
 
 Peterson, 3 Sandf. (N. Y.) 338; ''ule is varied essentially by .statutes 
 
 Walls V. Capped. 15 Mo. 448. In '-elating to marrie.l women m some 
 
 Kimball V. Currier, 5 Gray (Mass.), ^^ ^^"^ ''^*''*'''-- 
 
 458, it was held that the declara- ' Walton v. Green, 1 Cr. P. 621. 
 
 tions of a wife as to the state of her " Emer.son t). Blonden, 1 Esp. 142 ; 
 
 husband's mind at the time he exe- Anderson v. Sanderson, 2 Stark, 
 
 cuted a certain paper cannot be 204 ; Carey v. Adkins, 4 Camp. 92 ; 
 
 shown in an action in which the Meredith v. Footner, 11 M. & W. 
 
 validity of such paper is involved. 202. 
 
 ' Riley v. Suydam, 4 Barb. (N. 
 Y.) 222.
 
 SEC. 169.] ADMISSIONS. 531 
 
 for though this relation is pecuUar in its circumstances, from 
 its close intimacy and its very nature, yet there is nothing 
 peculiar ii^ the principles of law which apply to it. As the 
 wife is seldom expressly constituted the agent of the hus- 
 band, the cases on this sul)ject are almost universally those 
 of implied authority, turning upon the degree in which the 
 husband permitted the wife to participate, either in the trans- 
 action of his aftairs in general, or in the particular matter in 
 question. Where he sues for her wages, the mere fact that 
 she earned them docs not authorize her to bind him by her 
 admissions of payment ;• nor can her unauthorized declara- 
 tions aftect him, even where he sues with her in her right ; 
 for in these and similar cases the right is his own, though 
 acquired through her instrumentality.'-^ In regard to the in- 
 ference of her agency from circumstances, the question was 
 formerly left to the jury with great latitude, l)oth as to the 
 fact of agency and the time of the admissions. Thus, it has 
 been held competent for them to infer authority in her to 
 accept a notice and direction in regard to a particular trans- 
 action in her husband's trade, from the circumstance of her 
 being seen twice in his counting-room, appearing to conduct 
 his business relating to that transaction, and once giving 
 orders to the foreman.^ And in an action against the hus- 
 band for goods furnished to the wife while in the country, 
 where he occasionally visited her, her letter to the plaintiff, 
 admitting the debt and apologizing for the non-payment, 
 though written several years after the transaction, was held 
 sufficient to take the case out of the Statute of Limitations.^ 
 But this would not now be held ; greater strictness has pre- 
 vailed. In an English casc,^ where a wife, by her husband's 
 ' HalUj. HilJ,2 Str. 1094; Taylor of the survivang wife. Smith v. 
 on Ev. 511, 512. Scudder, 11 S. & R. (Penn.) 325. 
 
 " Alban v. Pritchett, 6 T. R. 680 ; ' Plimmer v. Sells, 3 N. & M. 422. 
 Kelly V. Small, 2 Esp. 716 ; Denn * Gregory v. Parker, 1 Camp. 
 V. "White, 7 T. R. 112, as to her ad- 394 ; Palethorp v. Furnish, 2 Esp. 
 mission of a trespass. Neither are 511, n. ; Chfford v. Burton, 1 Bing. 
 his admissions as to facts respecting 199; 8 Moore, 16, S. C. ; Petty ■?). 
 her property, which happened Anderson, 3 Bing. 170 ; Cotes v. 
 before the marriage, receivable, Davis, 1 Camp. 485. 
 after his death, to affect the rights ° Meredith v. Footner, 11 M. & 
 
 W. 202.
 
 532 EVIDENCE, [CIIAP. XV. 
 
 uutliority, curried on the busiiiesKi of a shop, antl attended to 
 all the receipts and payments, the court held that admissions 
 made hy her to the landlord ot" the shop respecting the 
 amount of rent were not admissible to hind the husband. 
 Had the admissions related to the receipt of jshop goods, they 
 would have been evidence ; but the fact that she was con- 
 ducting a business for her husband did not constitute her 
 his agent to make admissions of an antecedent contract ibr 
 the hire of the shop, or to make a new contract for tiic 
 future occupation of it. 
 
 In an action for damages for an assault and battery by 
 the wife of the defendant upon the wife of the plaintiH', the 
 admissions of the wife of the defendant are not admissible 
 in evidence to charge her husband.^ And when husband 
 and wife sue jointly' for services rendered by the wife during 
 coverture, her admissions of payment cannot be received in 
 evidence against them.^ 
 
 Declarations of a husband that he sold a note belonging 
 to the separate estate of his wife are not admissible in evi- 
 dence after his death, against the wife, in an action brought 
 by her against the holder of the note, for its conversion.^ 
 But the admissions of a mairied woman are competent evi- 
 dence in an action by her trustee, suing for her use, in favor 
 of the defendant.'* 
 
 In an action against a husband and wife for trespass com- 
 mitted by the wife on the plaintiff, the admissions or decla- 
 rations of neither of them can be introduced by the plaintiff 
 to prove the trespass.^ But in an action for a homestead, 
 the declarations of the alleged wife are competent to [)rove 
 that the plaintiffs are not married.'' 
 
 Upon the contest of a will, evidence of what the widow 
 of the deceased had said in relation to his insanity is inad- 
 missible.' 
 
 ' Hussey v. Elroyd, 2 Ala. 339. * Funkhou.ser ?). Pog-ue, 13 Ai-k. 
 
 » .Torrlan v. Hnbhard, 26 Ala. 433. 295 ; Burnett v. Burkhead, 21 Ark. 
 
 ^ Miii-])hree v. Singleton, 27 Ala. 77. 
 
 412. • Poole V. Gerrard, 9 Cal. 593. 
 
 * McLemore v. Nuckolls, 1 Ala. ' Cook v. Osborn, 2 Root (Conn.), 
 
 Sel. Cas. 591. 31.
 
 SEC. 169.] ADMISSIONS. 533 
 
 In u suit brought by husband iuid wife jointly, jure uxoris, 
 declarations made by her, not in his presence, are not evi- 
 dence.^ But the declarations of the plaintitF's husband that 
 money to be paid by the defendant for premises in the hus- 
 band's possession belonged to the plaintitt", and that he 
 wished the contract to inure to her benefit, arc admissible in 
 evidence for the pkintitf, in an action brought to enforce 
 the contract after her husband's death.^ 
 
 If, pending a suit against husband and wife, the husband 
 dies, and the suit proceeds against the wife alone, her admis- 
 sions of the debt, made during coverture, are evidence 
 against her. So in a suit against husliand and wife for a 
 debt contracted by the wife Avhile sole, the admissions of 
 the latter, made during coverture, are not admissible evi- 
 dence.^ 
 
 A husband's admissions are incompetent to prove him an 
 agent for his Avife, in matters concerning her separate 
 property.* 
 
 Where the surviving wife sues to annid a sale by her and 
 her husband to defendant, as a party interposed in a dis- 
 guised donation to her husband, his and her declarations, 
 though out of the defendant's presence, are admissil)le against 
 him as part of the res gestm.^ But in a real action by hus- 
 band and wife, to recover possession of land claimed in her 
 right, evidence of the wife's declarations, made during 
 coverture, has been held not to ))e admissible for the de- 
 fendant.*^ But where the subscribing witnesses have been 
 called and failed to show that a deed was executed by a 
 wife, whereby she relinquishes her right of dower, the ad- 
 missions of the wife, made during her widowhood, of her 
 having executed the deed, arc admissible as the next ])est 
 evidence.'^ So, on the issue whether certain money belonged 
 to plaintitt' or to her late husband, testimony that she had 
 
 ' Turner v- Coe, 5 Conn. 93. * Thibodeaux v. Herpin, 6 La. 
 
 * Grain v. "Wright, 46 111. 107. Ann. (57.5. 
 
 ' Lasselle v. Brown, 8 Blackf. ' White v. Holman, 12 Me. 157. 
 (Ind.) 221. ' Frost v. Deering, 21 Me. 156. 
 
 * "Whitescarver v. Bonney, 9 
 Iowa, 480.
 
 534 EVIDENCE. [f;iIAP. XV. 
 
 no property :it tlie time of" his clculli, or I'or a year or two 
 previous, may bo rchuttcd by proof of his dcchirations to 
 the contrary within that [)eriotl.' 
 
 Evidence of declarations made l)y a husband, during co- 
 verture, is not admissible against his creditors to cstal)lisli a 
 secret parol agreement between him and the wife, in r(>fer- 
 ence to property standing in the husband's name; during his 
 life-time.'* 
 
 Admissions and declarations of the wife, made l)()th before 
 and after marriage, of the making and execution of a parol 
 antenuptial agreement, by which the husband was to hav(; 
 her cJioses in action, and pay her the interest thereon for pin- 
 money, arc admissible in favor of the husband's representa- 
 tives, against those of the wife who seek to get possession of 
 the bontls and notes of the Avife, which have been delivered 
 to the husl)and pursuant to such agreement.^ 
 
 Upon a joint indictment of hus])aud and wife, the decla- 
 rations of the wife, though criminating both, are admissible 
 ill evidence against liei-, but not against him.^ 
 
 Sec. 170. Admissions of Attorneys. 
 
 The admissions of attorneys of record "bind their clients in 
 all matters relating to tJie jjrogress and trial of the cause. In 
 some cases they are conclusive, and may even be given in 
 evidence upon a new trial, although, previously to such 
 trial, the party gives notice that he intends to Avithdraw them, 
 or though the pleadings are altered, provided the alterations 
 do not relate to the admissions.^ But to this end they must 
 be distinct and ibrmal, or such as are termed solenm admis- 
 sions, made for the express purpose of alleviating the strin- 
 gency of some rule of practice, or of dispensing Avith the 
 formal i)roof of some fact at the trial.'' 
 
 Another class of admissions comprehends those Avhich 
 
 ' Linscott V. Trask, 38 Me. 188. Doe v. Bii-d, 7 C. & P. 6 ; Langley 
 
 ' JJrooks V. Dent, 1 Md. Ch. 523. v. E. of Oxford, 1 M. & W. .OOS. 
 
 ^ Crane v. Gough, 4 Md. 316. * See cases cited in last note. 
 
 * Com. V. Briggp. .') Pick. (Mass.) Also Young v. Wright, 1 Camp. 141, 
 
 429. per Lord Ellenborough. 
 » Elton V. Larkins, 5 C. & P. 385 ;
 
 SEC. 170.] ADMISSIONS. 535 
 
 attorneys make, not with the express intent of dispensing 
 with proof of certain facts, but inoidentcdhj ^ while they are 
 referring to other matters connected with the cause. These, 
 which are generally the result of carelessness, though not 
 reo^arded as conclusive admissions, are still considered, not 
 unfrequently, as raising an inference respecting the existence 
 of facts which the adversary woidd otherwise have been 
 called upon to prove ; and consequently it is very impor- 
 tant that attorneys sliould exercise great caution in the lan- 
 guage they employ while corresponding with their opponents. 
 Thus, where, in an action against the acceptor of a bill, his 
 attorney had served notice on the plaintiff to produce all 
 papers relating to a bill, the description of which corre- 
 sponded with that set forth in the declaration, — " which said 
 bill," the notice went on to state, "-was accepted by the said 
 defendant,'''' — the court held that such notice was j^rima facie 
 evidence of the defendant's acceptance ; ' and in an action 
 against the owners of a ship, their joint ownership was in- 
 ferred from an undertaking to appear for them, signed by 
 their attorney, in which they were described as owners of 
 the sloop in question.^ Again, where the defendant's attor- 
 ney, in an action of debt on a bond, had admitted the signa- 
 ture of the attesting witness, this was held, by implication, 
 to amount to an admission of the due execution of the in- 
 strument.^ 
 
 Admissions, however, contained in the mere conversation 
 of an attorney, cannot be received against the client, although 
 they relate to the facts in controversy. The reason of this 
 distinction is found in the nature and extent of the authority 
 given, the attorney being constituted for the management of 
 the cause in court, and for nothing more.^ So, if a letter, 
 sent by an attorney to the opposite party, is expressed to be 
 written ^^ without jprepidice,^ it cannot be received as an ad- 
 mission ; neither can the reply be admitted, though not 
 
 ' Holt -». Squire, Ry. & M. 282. (Mass.), 42; Yomi^ v. Wrig-ht, 1 
 
 * Marshall v. Cliff, 4 Camp. 133. Camp. 139, 141 ; Parkins v. Hawk- 
 ^ Milward v. Temi^le, 1 Camp, shaw, 2 Stark. 239 ; Doe v. Richards, 
 
 375. 2 C. & Kir. 216 ; Wilson v. Turner, 
 
 * Saunders v. McCarthy, 8 Allen 1 Taunt. 398.
 
 53G EVIDKNCE. [CIIAP. XV; 
 
 guiii-aecl in a similar mamicr.' If tlic aamissioii was made 
 U'foi-c suit, it will be ciiually binding, provided it is shown 
 lluit the attorney was already retained to appear in the causc.^ 
 But in the absence of any evidence of retainer at that time 
 ill the cause, thert> must 1)C some other proof of authority 
 to make the admission.' When the attorney is already con- 
 stituted in the cause, admissions made by his managing clerk, 
 or his agent, are received as his own.^ Hie admissions of 
 an attorney are not l)inding upon his client when made in 
 reference to a trans:iction in which he had no apparent 
 authority to act for him. Thus the declarations of an attor- 
 ney who sold a note belonging to his client without authority, 
 relative to his title to the note, not made at the time of the 
 sale, are not admissible in an action between the true owner 
 of the note and the purchaser.'^ Nor has an attoiney Avitli 
 Avhom a demand is left for collection, such an interest in a 
 suit brouirht by him thereon as to make his admissions com- 
 petent evidence for the defendant in audita querela brought 
 to set aside the judgment;'' nor can admissions made by an 
 attorney in one suit, be used as evidence in another suit 
 between the same parties;' nor admissions made by him 
 after his connection with the case has ceased." 
 
 Sec. 171. Declarations and Admissions of an Agent. 
 
 It is a well settled rule of evidence that the clpc'lu.ations or 
 admissions of an agent will bind the imndpal in respect to 
 matters about ichich he was authoHzed to act for him, if made 
 at the time of the transaction, so as to constitute a part of the 
 res gestae,^ or in reference to a transaction not yet com- 
 « Paddock v. Forrester, 3 Scott, Moore, 64 ; Taylor v. Forster, 2 C. 
 N. R. 734 See Jardine v. Sheri- & P. 195. 
 dan 2 C. & K. 24. * Thomas v. Kinsey, 8 Ga. 421. 
 
 « Marshall v. Cliff, 4 Camp. 133 ; « Underwood v. Hart, 23 Vt. 120. 
 Gainsford v. Grammar, 2 Camp. 9. ' Wilkiiis V. Stidger, 22 Cal. 231 ; 
 => Waijstaff V. Wilson, 4 B. & Ad. Maffit v. Witherspoon, 10 Ired. (N. 
 330 ; Burg-hart v. Angerstein, 6 C. & C.) L. 281. 
 
 P. G9.'); Pope v. Andrews, 9 C. & " Janeway v. Skerritt, SON. J. L. 
 P. .%4. 97. 
 
 * Taylor v. Williams, 2 B. & Ad. » Fairlee v. Hastings. 10 Ves. 123 ; 
 84.5. 856 ; Standage v. Creighton, 5 Tuttle v. Turner, 28 Tex. 759 ; Win- 
 C . & P. 406 ; Griffiths v. Williams, ter v. Bent. 31 Ala. 33 ; Keane v. 
 1 T. R. 710 ; Truslove v. Burton, 9 Branden, 12 La. An. 20 ; Page ■?).
 
 SEC. 171.] 
 
 ADMISSIONS. 
 
 537 
 
 plcted;' but in order to make such admissions binding, the 
 authority of the person making them must be established by 
 other evidence than that he acted as a general ao-ent of the 
 
 Parker, 40 N. H. 47 ; Barnard v. 
 Henry, 25 Vt. 289 ; Dykes v. Cock- 
 erell, La. An. 707 ; "Woods t). Banks, 
 14 N. H. 101 ; Byers v. Lawler, 14 
 Ark. 87 ; Lawry v. Harris, 12 Minn. 
 255 ; Griffin v. Montgomery R. R. 
 Co., 26 Ga. 11; Covington, etc., R. R. 
 Co. V. Ingles, 15 B. Mon. (Ky.) 237 ; 
 Hynds v. Days, 25 Ind. 31 ; Tillot- 
 eon V. McCrillis, 12 Vt. 477 ; Raiford 
 V. French, 11 Rich (S. C), 367; 
 Converse v. Blumrich, 14 Mich. 109 ; 
 Dome V. Southworth Manuf. Co., 11 
 Cush. (Mass.) 205 ; Moore v. Bettis, 
 11 Humjjh. (Tenn.) 267; Rowell v. 
 Klein, 44 Ind. 290 ; Rathel v. Brady, 
 44 Ind. 412 ; Anderson v. Rome, etc., 
 R. R. Co., 54 N. Y. 334; Peck v. 
 Ritchey, 66 Mo. 114; Verry v. Bur- 
 Jington, etc., R. R. Co., 47 Iowa, 549 ; 
 Hydorn v. Cushman, 16 Hun (N. 
 Y.), 107; White v. Miller, 71 N. Y. 
 118 ; Fursttj. Second Ave. R. R. Co., 
 72 N. Y. 542 ; Schaefer v. Gilden, 3 
 Col. 15 ; Treadway v. Sioux City, 
 etc., R. R. Co., 40 Iowa, 526 ; Taggle 
 V. St. Louis, etc., R. R. Co., 62 Mo. 
 425 ; Darling ■w. Oswego Falls Manuf. 
 Co., 30 Hun (N. Y.), 276 ; Phelps v. 
 Georgia Creek, etc., R. R. Co., 60 
 Md. 586; Pavey v. Wintrode, 87 
 Ind. 379 ; Louisville, etc., R. R. Co. 
 v. Henley, 88 Ind. 535. 
 
 The declarations of an agent, with- 
 m the scope of his authority, and in 
 reference to the business in which 
 he is employed, may be proved as 
 the declarations of the principal. 
 American Fur Co. v. United States, 
 2 Pet. (U. S.) 358; City Bank v. 
 Bateman, 7 H. & J. (Md.) 104 ; Sharp 
 V. New York, 40 Barb. (N. Y.) 256 ; 
 Kasson o. Mills, 8 How. (N. Y.) Pr. 
 377; Hunter v. Hudson River Co., 
 
 20 Barb. (N. Y.) 493 ; Stewartson v. 
 Watts, 8 Watts (Penn.), 392; Chor- 
 penning v. Royce, 58 Penn. St. 476 ; 
 Fring v. Breymeyer, 2 Phil. (Penn.) 
 92. To the contrary, Betts v. Bank. 
 etc., 3 Stew. (Ala.) 18. Where the 
 decision of a question depends at all 
 upon the fact whether the plaintiff 
 in a suit had assented to an act which 
 was a deviation from the actor's 
 strict line of duty, and of a kind for 
 which the plaintiff could hold him 
 responsible, it is proper to ask what 
 the plaintiff's attorney said after the 
 act was done ; the case being one 
 where an adoptio:i by the plaintiff 
 of the act illegally done concluded 
 his remedy. Rogers v. Marshall, 1 
 Wall. (U. S.) 644. The declaration 
 of an agent of the government, when 
 not forming a part of the res gestcB, 
 does not bind the government, and 
 cannot be received as evidence. 
 United States v. Martin, 2 Paine (U. 
 S. C. C), 68. A principal is charge- 
 able with the false representations 
 made by his agent in a sale where 
 the agent is acting within the line 
 of business committed to him. Mor- 
 ton V. Scull, 23 Ark. 289 ; Ferguson 
 V. Hamilton, 35 Barb. (N. Y.) 427; 
 Union Bank v. Campbell, 4 Humph. 
 (Tenn.) 394. But an agent acting 
 undei- a written authority from his 
 principal cannot enlarge his powers 
 by his own declarations, so as to 
 bind his principal. Mappt). Phillips, 
 32 Ga. 72. S. P. National, etc., Co. 
 V. Bruner, 19 N. J. Eq. 331 ; New 
 York, etc., Co. v. Beebe, 8 N.Y. 364. 
 ' Morse v. Conn., etc., R. R. Co , 
 6 Gray (Mass.), 456 ; Halsey v. 
 Lehigh Valley R. R. Co., 45 N. J. 
 L. 26.
 
 538 
 
 EVIDENCE. 
 
 [chap 
 
 XV. 
 
 partv, aiul liis mere tleclaratioiis/ and they must relate to the 
 subject-} natter of Jiis af/enci/, and be loitJiin tJte scope of his 
 autliorityr Neither his declarations nor his acts are sufficient 
 
 ' Craighead v. Wells. 21 Mo. 404 ; 
 Mortit V. Cresler, 8 Iowa, Vl'l ; 
 Lathani v. Pledger, 11 Tex. 437; 
 Hatch V. Sciuires, 11 Mich. 185; 
 Fitch V. Chai>man, 10 Conn. 8 ; Sen- 
 serbox v. McGrade, 6 Minn. 484 ; 
 Mapp V. Phillips, 32 Ga. 72. In 
 Brigham v. Peters, 1 Gray (Mass.), 
 139, the declarations of an agent, 
 although accompanied Ly acts as 
 such, were held not to be admissible 
 to establish the fact of agency. Dec- 
 larations made by the general agent 
 of a telegraph company of its lia- 
 bility for an accident, txoo months 
 after its occurrence, were held to be 
 incomi^etent. Randall v. North- 
 western Tel. Co., 54 Wis. 140; 41 
 Am. Rep. 17. In this case the 
 general superintendent of the com- 
 pa;iy having the general manage- 
 ment of his business, sent a telegram 
 two months after an accident, in 
 which the liability of the company 
 for an injury inflicted on the defend- 
 ant was admitted. The plaintiff 
 introduced this telegram in evidence. 
 The Supreme Court held that it was 
 not admissible, because the author- 
 ity of the superintendent to admit 
 away the rights of the company, 
 could not be inferred from his po- 
 sition. " The injidmissibility of this 
 evidence," said Taylor, J., " is fully 
 established * * * upon well- 
 established principles of law. Mil- 
 waukee, etc., R. R. Co. V. Tinney, 
 10 Wis. 388 ; Belts v. Farmers', etc., 
 Co., 21 Wis. 80 ; Livesley v. Lasa- 
 lette, 28 Wis. 38 ; Hazleton v. Union 
 Bank, 32 Wis. 34; Richards r. 
 Noyes, 44 Wis. 609 ; Ronnsavell v. 
 Pease, 45 Wis. 506 ; Packet Co. v. 
 Clough. 20 Wall. (U. S.) 540. These 
 cases show that the rank or station 
 
 of the person making the admission 
 does not aft'ect the question of its 
 admissibility. In Hazleton v. Union 
 Bank, ante, the admission of the 
 presiilent of the bank wjis held in- 
 admissible. In Packet Co. v. Clough, 
 ante, the admission of the captain of 
 the boat could not be admitted. The 
 authority to make the admission for 
 the principal is not to be inferred 
 from the position oi- rank of the 
 party making the same. If such 
 authority ift alleged to exist, it must 
 he shown by com'petent pj'oof." 
 
 In Webb v. Smith, 6 Cal. 365, 
 declarations niade by a general 
 agent of a corporation, concerning a 
 debt contracted by him for the cor- 
 poration within the scope of his 
 authority, were held admissible as 
 jJi'ima facie evidence. 
 
 " Fogg V. Child, 13 Barb. (N. Y.) 
 246 ; Wood v. Banks, 14 N. H. 101 ; 
 Runk V. Ten Eyck, 24 N. J. L. 756 ; 
 Gooch V. Bryant, 13 Me. 386 ; Winter 
 V. Burt, 31 Ala. 33 ; Demeritt v. 
 Meserve, 39 N. H. .')21 ; Neeley v. 
 Naylee, 23 Cal. 152; Brehm v. 
 Great Western R. R. Co., 34 Barb. 
 (N. Y.) 256 ; Youcum v. Barnes, 8 
 B. Mon. (Ky.) 496 ; Austin v. 
 Chittenden, 33 Vt. 553 ; Lamb v. 
 Barnard, 16 Me. 356 ; Cooley v. 
 Norton, 4 Cush. (Mass.) 93 ; Thomas 
 7). Steinheimer, 29 Md. 268; 
 Beardsley v. Steinmesh, 38 Mo. 
 168 ; Budlong v. Van Nostrand, 24 
 Barb. (N. Y.) 25 ; Benedict v. Den- 
 ton, Walker (Mich.) Ch. 336; 
 Waterman v. Peet, 11 111. 648; 
 Rogers v. McCune, 19 Mo. 557. He 
 is bound by the agent's false repre- 
 sentations in reference to matters 
 within his authority, although he 
 did not know that the agent had 
 
 I
 
 SEC. 171.] ADMISSIONS. 539 
 
 to establish his authority/ unless his acts and declanitioiis 
 upon that and former occasions are such independent proof 
 
 made or did not authorize him to 
 make them. N. Y., etc., R. R. Co. 
 V. Schuyler, 34 N. Y. 30 ; Hunter v. 
 Hudson River R. R. Co., 20 Barb. 
 (N. Y.) 493. And he is bound by a 
 warranty made by an agent in the 
 . sale of a chattel. Elzell v. Frank- 
 lin, 2 Sneed (Tenn.), 236 ; William- 
 son V. Cannaday, 3 Ired. (N. C.) L. 
 349 ; Lane v. Dudley, 2 Murph. (N. 
 C.) 119 ; Marckle ij. Haskins, 27 111. 
 282. 
 
 ' Seatt V. Crane, 1 Conn. 255 ; 
 Folsom V. Batchelder, 22 N. H. 47 ; 
 Richmond Iron Works v. Hayden, 
 132 Mass. 190 ; France v. Edwards, 
 77 N. C. 271; Gilford* ■?). Landrine, 
 37 N. J. Eq. 127. 
 
 The agency of a party must first 
 be proved by other evidence than 
 his acts, before it can be assumed 
 that his acts are binding" on the 
 principal. Scarborough t>. Reynolds, 
 12 Ala. 252; Van Eppes v. Smith, 
 21 Ala. 317 ; Scott v. Crane, 1 Conn. 
 255 ; Cruikshank v. Comjms, 24 111. 
 602 ; Thurman v. Wells, 18 Barb. 
 (N. Y.) 500 ; Dixon v. Haslett, 3 
 Brev. (S. C.) 475 ; Bank of Hamburg 
 V. Johnson, 3 Rich. (S. C.) 42. Thus, 
 without jiroof of agency, a warranty 
 of a grass-cutting machine, signed 
 "A B., agent," was offered and re- 
 ceived in evidence in an action upon 
 warranty, and it was held that this 
 was erroneous. Gray v. Gillilan, 
 15 111. 453. 
 
 Where a deed executed by one 
 as agent is exhibited, bvit his au- 
 thority is not proved, the title must 
 be considered as residing in his 
 principal, who should have been 
 made a party to the suit ; and if the 
 bill is dismissed, it should be with- 
 out prejudice. Pope v. Melone, 2 
 A. K. Marsh. (Ky.) 239. Relinquish- 
 ment of title to land, made to the 
 
 State by a person asserting himself 
 to be an agent, is not operative uj)- 
 on the holder of the title unless the 
 agency is proved. Morgan v. 
 Marshall, 7 J. J. Marsh. (Ky.) 316. 
 In an action against a corporation 
 for injury done by their agent it is 
 not necessary to prove that the 
 agent had authority under the cor- 
 poi-ate seal, nor under an oi-der 
 entered upon the books of the cor- 
 poration. Hooe V. Mayor, etc., of 
 Alexandria, 1 Cranch (U. S. C. C), 
 90. The certificate of a notary pub- 
 lic, imder his notarial seal, of the 
 acknowledgment by the principal of 
 a power of attorney, is sufficient, in 
 Alabama, to authorize its admission 
 in evidence. St. John v. Redmond, 
 9 Port. (Ala.) 428. The authority of 
 an agent to assume the payment of 
 the debt of a third person, for his 
 principal, should l)e clearly proved, 
 or no recovery can be had iipon such 
 promise against the pi-incipal. Read- 
 ing R. R. V. Johnson,? W. &S.(Penn.> 
 317. It will not be presumed that 
 the agents of an insurance company 
 have authority to make parol con- 
 tracts to insure ; such' authority 
 must be shown afliirmatively. The 
 declaration of such agents, in the 
 course of business, that it was not 
 customary to give policies upon 
 such insurances, though they re- 
 ceived the premium, is not sufficient 
 to pi'ove the authoiity of the agents 
 to insin-e by j^arol. iEtna Ins. Co. 
 ii. North Western Iron Co , 21 Wis. 
 458. To make a letter to an agent 
 evidence in a case, the agency must 
 first be established. Bro^vn v. 
 Bank of Missouri, 2 Mo. 191 ; Brown 
 V. Harrison, 17 Ala. 774. In an 
 action against the principal, on 
 jiajier purporting to be signed by 
 his agent, the agency and authority
 
 540 
 
 EVIDENCE. 
 
 [chap. XV 
 
 lUi teud to establish u goiicial ;iiitli()iily :' that is, unless it is 
 shown that siniihir transartions entered into Uy the [)ei'son 
 elaiining ti) be an agent had been ratified and acted upon 
 by the party sought to l)e affected by such admissions oi' 
 declarations.^ Thus, in the case last cited, proof that a 
 '• drunnner " for a wholesale house had taken other orders 
 for the same house, Avhicli had been regularly filled by it, 
 was held suflieient to authorize evidence ol" his representa- 
 tions as an agent in its behalf. It is the province of the 
 court to determine whether there is sufficient prima facie 
 evidence of agency to render his acts and declarations admis- 
 sible f but where there is any legal evidence tending to estab- 
 
 to draw checks must be proved to 
 entitle the plaintiff to recover. 
 Flax and Hemp Co. V. Ballentine, 
 10 N. J. L. 454. "Where one is 
 agent of another to offer a reward 
 for the api)rehen.sion of a criminal, 
 in oi'der to bind the i)nncipal, it is 
 necessary to prove the simjile fact 
 of the agency, and not the way in 
 which it was created. Currie v. 
 Swindall, 11 Ired. (N. C.) L. 361. 
 
 » Cobb-u. Lunt, 4 Me. 503 ; Wailes 
 V. Neal, 65 Ala. .59. 
 
 * Nation v. Thomas, 25 Tex. 221 ; 
 Murray v. Chase, 134 Mass. 92. 
 
 ' Muroe v. Stutts, 9 Ired. (N. C.) 
 L. 49. Mere proof of a person's 
 recognition of another's authority 
 to make purchases as his agent on 
 one occasion is not sufficient to 
 charge the former for a subsequent 
 purchase of the .same kind (in this 
 case, of cattle and sheep on credit) 
 made by the latter, claiming to act 
 ius his agent, — it must be shown that 
 the vendor, at the time of such pur- 
 <'hase, was cognizant of those acts 
 of recognition. Maxey v. Hecke- 
 thorn, 44 111. 437. 
 
 Where the question is whether an 
 agent not having, by the papei-s 
 which created him such agent and 
 defined his powers, any authority to 
 alter a policy which had been issued 
 
 by his principal, was permitted to 
 alter policies in i-espect to dates of 
 sailing, from time to time, so that 
 that became the customary usage 
 and course of business, the evidence 
 must show, in order to bind the 
 l)rincipal, at least sevei-al cases in 
 which the agent, without asking the 
 sanction of his acts by the principal, 
 had made altei-ations of a like na- 
 ture on which the principal had 
 acted, and in which he had acqui- 
 esced, when such alterations came 
 to his knowledge ; or it must tend 
 to i?rove that, although communi- 
 cated by the agent, they were ac- 
 quiesced in as acts which he was 
 competent to perform, and as bind- 
 ing on his principal ; or that he was 
 held out to the public as authorized 
 to do such acts. Bunten v. Orient, 
 etc., Ins. Co., 4 Bosw. (N. Y.) 254. 
 
 The action upon book account to 
 recover for projierty claimed to have 
 been sold by the plaintiff to the de- 
 fendant, but which property was in 
 fact sold and delivered to a third 
 per.son, who was doing business in 
 the name of the defendant, and who, 
 as between himself and the defend- 
 ant, had no right tn ph'dge the credit 
 of the defendant for the purchase of 
 the property, cannot be sustained 
 upon the ground, merely, that the
 
 SEC. 171.] ADMISSIONS. 541 
 
 lisli authority, the whole question may properly be submit- 
 ted to the jury with instructions to find whether the agent 
 was acting within the scope of his authority in making the 
 admissions, and if not, to lay the evidence out of the case.^ 
 Proof of authority, independent of the acts or declarations 
 of the agent, must be given.^ The mere rank or position 
 of the person, as that he is general superintendent, general 
 manager, general agent, etc., of the principal, is not of 
 itself sufficient evidence of his authority to make the ad- 
 
 plaintiff' was justified in regfarding- 
 the defendant as the principal in the 
 business, unless he also had suffi- 
 cient g-i'ounds for believing' that such 
 third person was authorized to make 
 the purchase upon the credit of the 
 defendant. And such authority 
 cannot be established merely by 
 showing that such third person had, 
 in a few instances, made purchases 
 in the name of the defendant, such 
 purchases having been in fact un- 
 authorized by him before they were 
 made, and not understanding! y 
 sanctioned and adopted afterwards. 
 Brown v. Billings, 22 Vt. 9. 
 
 The rule that an instrument which 
 is apparently the personal obliga- 
 tion of the signer, may Ly parol be 
 shown to be the obligation of 
 another, for whom the signer was 
 acting as agent, applies exclusively 
 to cases in which it appears in the 
 body of the instrument, or from the 
 signature of the person by whom it 
 is executed, that he was acting for 
 another, and intended to bind such 
 other, and not himself personally. 
 In such cases, whei-e the party to 
 whom the obligation is given under- 
 stands the character in which the 
 party giving it is acting, parol evi- 
 dence may, it seems, be given to 
 show that the maker or obligor was 
 acting in the matter as agent merely. 
 
 But where there is nothing of that 
 kind, either in the body of the in- 
 
 strument or attached to the signa- 
 ture, to indicate that it was intended 
 to be anything othei" than a personal 
 obligation, such evidence is inadmis- 
 sible. Auburn City Bank v. Leon- 
 ard, 40 Barb. (N. Y.) 119. 
 
 In an action brought to recover 
 jiroperty alleged to have been 
 wrongfully delivered by an agent, 
 who was also a witness, to the de- 
 fendant, who had notice that such 
 agent was exceeding her authoiity, 
 the fact that such witness and agent 
 made a written contract with the 
 defendants, which imported that she 
 sold to them such property as her 
 own, does not make evidence that 
 she, at the time, told them the 
 property belonged to the iilaintiff", 
 inadmissible. Meserole v. Archer,. 
 3 Bosw. (N. Y.) 376. 
 
 In an action by a third party 
 against a pi-incipal, upon a transac- 
 tion with the agent of the latter, let- 
 ters between the principal and agent 
 are admissible in favoi* of the plain- 
 tiff to ijrove the natui-e of the agen- 
 cy. Thurston v. Mauro, 1 Greene 
 (Iowa), 231. 
 
 If the defendant has authorized 
 another to subscribe his name to a 
 note, the fact need not appear on 
 the note, but may be proved by pa- 
 rol. Morse v. Greene. 12 N. H. 32. 
 
 ' Wendell v. Abbott, 45 N. H. 349. 
 
 "" Wailes v. Neal, 65 Ala. 59.
 
 5t2 EVIDENCE. [ciIAr. XV. 
 
 iiiis-sioii unles.9 it loas made in reference to a transaction 
 in which he jmrticijiated^ and wider such circumstances 
 as make it a jxirt of the res gesta' ;' consccjiiciitly, cxcoj)! 
 ■\vhciv ni;uk' by the agent as and for the piiii(i[)al, and with 
 conipc-lent anlhoiity, in order to he adnii.s-^il)l(', they mu.-^t 
 eonstitntc u part of the res gestce. The true doctrine in 
 reference to the adniissihility of this chiss of evidence was 
 stated by Dallas, C. J., in an early English ease.^ He said, 
 " It is not trne that where an agency is estahlislied, the dec Ui- 
 rations of the agent are admitted, merely hecanse they are 
 his declarations; (iiei/ are only evidence lohen tlieij form a 
 jKtrt of the contract entered into hy the agent on behalf of the 
 principal, and in that single case they become admissible. 
 The declarations of an agent at a diflcrent time have been 
 decided not to be evidence ; indeed, the cases on the subject 
 draw this distinction between the declarations of an agent 
 accompanying the making of, and therefore forming a part 
 of, the contract, and those mad(> either at a subsequent or 
 antecedent period." These declarations, when admissible, 
 constitute original evidence, and are not mere hearsay. They 
 bind the principal only when made during the continuance of 
 the agency in regard to a matter then depending et dum ferret 
 rpus. The ground upon which they arc^ admitted is the 
 legal identity of the principal and the agent, and the fact 
 that his declarations are a part of the res gestce? There- 
 fore it will be seen that the declarations of an agent, made 
 after the transaction to vjhich they relate is ended* or not 
 
 ' Randall v. Northwestern Tel. Hannibal, etc., R. R. Co., 73 Mo. 
 
 Co., 54 Wis. 140 ; Scott v. Middle- 516 ; 39 Am. Rep. 526 ; Griffin v. 
 
 town, etc.. R. R. Co., 86 N. Y. 200. Montgomery R. R. Co., 26 Ga. 
 
 The declarations of an agent are 111 ; Moore v. Meacham, 10 N. Y. 
 
 received as evidence against his 207 ; Robinson i\ Fitchburgh, etc., 
 
 principal, not as admissions, but R. R. Co., 7 Gray (Mass.), 92 ; Gal- 
 
 becaiLse they are a part of the res ceran v. Noble, ^^j Ga. 307 ; Frank- 
 
 <7e.sto. Haven v. Brown, 7 Me. 425; lin Bank 7'. Steam Navigation Co., 
 
 Virginia, etc., R. R. Co. v. Sayers, 11 (4. & J. (Md.) 28. 
 
 26 Gratt. (Va.) 328. " .Jordan v. Stewart, 23 Penn. St. 
 
 ' Betham v. Benson, Gow, 48 ; 244 ; Hadspeth v. Allen, 26 Ind. 
 
 Coyle V. Baltimore, etc., R. R. Co., 165 ; Levy v. Mitchell, 6 Ark. 138 ; 
 
 11 W. Va. 94. Brigham v. Carr, 21 Tex. 142 ; Cald- 
 
 ' Hemry, J., in McDei-mott v. well v. Garner, 31 Mo. 131 ; "Water-
 
 SEC. 171.J ADMISSIONS. 543 
 
 accomjpanied bij an autJiorized act^ or ivJiich are beyond the 
 scope of Ms authority,'^ are not admissible iigaiust the principal. 
 The rule is that, whenever it is proved that a person is the 
 agent of another as to a special matter, or generally, what- 
 ever such person says, does or writes in reference to such 
 matter, during the pendency of the transaction to which 
 his agency relates, and in pursuance thereof, is evidence 
 against the principal, but it is not admissible merely as the 
 agent's account of what has passed.^ Mr. Roscoe, in his 
 Digest of the Law of Evidence, p. 72, illustrates this rule thus : 
 The declaration of a servant employed to sell a horse is 
 evidence to charge the master with a warranty, if made at 
 the time of sale ; but statements made at any other time are 
 not admissible against him.* So where the servant of a 
 horsedealer, who was employed to take a horse to the stables 
 of the purchaser, had signed a receipt containing a warranty, 
 this receipt without proof of the servant's authority to give 
 a warranty was rejected in an action against his master.^ An 
 admission by a servant, in a transaction not relating to the 
 business in which he is employed, is not evidence against his 
 master. Thus where a pawnbroker's shopman was heard lo 
 state that his master had lent £200 at 5 per cent on the 
 security of certain plate, this was held inadmissible as against 
 the master.^ Bui if the statement had been made by him in 
 the course of a transaction in tlte ordinary course of a pawn- 
 hroker''s business, it would have been different? The letters 
 of an agent to his principal, containing a narrative of past 
 transactions in which he had been employed, are not admis- 
 sible in evidence against the principal.'^ An admission by a 
 
 man v. Peet, 11 111. 648 ; Raiford v. * Helyear v. Hawke, 5 Esp. 72. 
 
 French, 11 Rich (S. C), 367 ; Craig " Woodm i). Burford, 2 Cr. & M. 
 
 V. Gilbrath, 47 Me. 416 ; Austin v. 391. 
 
 Chittenden, 33 Vt. 553 ; Keeler v. ^ Garth v. Howard, 8 Bing-. 451. 
 
 Salisbury, 33 N. Y. 648. ' Schumack v. Lock, 10 B. Moo. 
 
 ' Turnpike Co. v. Thorpe, 13 39. 
 
 Conn. 173. ® Kahl v. Jansen, 4 Taunt. 565 ; 
 
 * Wright ij. Georgia R. R., etc., Fairlie v. Hasting.s, 10 Ves. 128; 
 
 Co., 34 Ga. 330. Betham v. Benson, Gow, 45. 
 
 ' Langhom v. Allnutt, 4 Taunt. 
 519.
 
 544 EVIDENCE. [ciIAr. XV. 
 
 person who has generally managed A.'s landed property, and 
 received his rents, is not evidence against A. a.s to his em- 
 ployer's title, there being no other proof of his agency ad 
 hoc} So in an action agiiinst a surety, tin; admissions or 
 declarations of the [)iincipal, to whom goods have been sent 
 by the plaintilfat the defendant's rc(piest, are not evidence 
 a'l^ainst the defendant either as to the receipt of the goods, 
 or as to other facts respecting them.^ But a letter from an 
 a<»"ent abroad, stating the receipt of money, coupled with the 
 answer of the princi[)al directing the disposition of the 
 money, will be evidence of the receipt l)y tlic principal.^ 
 The admissions of an imder-sheriff are evidence against a 
 sheriil", for he is the general agent of the sherifi' ;* but not 
 unless they accompany an act done, or they tend to charge 
 himself, he being the real party in the cause.^ The admis- 
 sions of a bailiti' are evidence against the sheriil", like the 
 statements of any other agent, only when they foi-m part of 
 the transaction.^ The admissions of a surveyor of a corpo- 
 ration respecting a house belonging to the cor[)oration are 
 evidence against the latter in an action for an injury to the 
 plaintiff's house by works done on the defendant's premises.''^ 
 Evidence may be given against companies of admissions 
 made by their directors or agents relating to matters within 
 the scope of their authority." So a letter written by the 
 secretary of a company by order of the acting directors, 
 stating the number of shares held by M., was admitted on 
 behalf of his executors, in proceedings against them.^ The 
 .secrt'tary of a projected company has not, by virtue only of 
 his office, any power to ])ind the members of the i)rovisional 
 committee l)y admissions.'" The evidence of admission by 
 
 ' Ley V. Peter, 3 H. & N. 101. 3 M. & Ry. 625, n.; and see London^ 
 
 ' Evans v. Beattie, 5 Esp. 26 ; Mayor of, v. Long, 1 Camp. 25 ; Reg. 
 
 Bacon v. Chesney, 1 Stark. 192. v. Adderbury, East, 5 Q. B. 187. 
 
 » Coates V. Bainhridge, 5 Bing. " Meux's Ca.se, 2 D., M. & G. 522. 
 
 58. " National Exchange Co. of Glas- 
 
 * Drake v. Sykes, 7 T. R. 117. gow v. Drew. 2 Macq. 103. 
 
 ' Snowball t). Goodricke, 4 B. & '" Biirnside v. Dayi-ell. 3 Excn. 
 
 Ad. 541. 22.-). In Bniff v. Gt. N. Ry. Co., 1 
 
 • Ndvth V. Miles, 1 Camp. 389. F. & F. 345, an admission of a sec- 
 ' Peyton v. S. Thoraa.s' Hospital, retary of a company as to the re-
 
 SEC. 171.] ADMISSIONS. 545 
 
 servants of a railway company as to the cause of the loss, or 
 delay in delivering goods, has been held not admissible.^ All 
 the rules applicable in the case of agents are applicable in the 
 case of master and servant, and the admissions of the servant 
 may be said not to be admissible against the master, except when 
 they are made in reference to matters in which the acts of the 
 servant will bind the master, and when they form apart of the 
 res f/estce.'^ Thus, where a witness testified that a few days 
 prior to the demand of a chair by the plaintiff, he, at the plain- 
 tiff's request, went to the defendant's hotel for the chair, and- 
 that while there, but in the absence of the defendant, he asked 
 the defendant's clerk, Avho liad the general supervision and 
 charge of the hotel, if the chair was there, at the defendant's 
 hotel, and the clerk replied that it was, it was held that this 
 was a declaration in respect to matter in regard to which the 
 clerk had full means of knowledge, and tended to show that 
 the chair was at the defendant's hotel when the witness called 
 for it.^ So, in an action against a railway company on 
 account of injuries received by the plaintiff's wagon and 
 horses from a collision with the defendant's cars, it was held 
 that statements made at the time by the servant who was 
 driving the plaintiff's wagon, as to the cause of the accident, 
 were admissible as a part of the res gestae ;* and the same rule 
 was also applied in an action against a railroad corporation 
 by a passenger for the loss of his trunk, and the admissions of 
 the conductor, baggage-master or station-master, as to the 
 manner of the loss, made in answer to inquiries on Ijc- 
 half of the passenger the next morning after the loss, were 
 held admissil^le against the corporation.^ But this class of 
 admissions or declarations are not admissible unless they area 
 part of the res gestae, and if made after the act to which the3r 
 
 ceipt of a letter was held not ron, 38 Vt. 420 ; Maury v. Tal- 
 
 admissible. See, also, Ridley v. madge, 2 McLean (U. S. C. C), 157. 
 
 Plymouth Banking Co., 2 Exch. ' Weeks v. Banon, 38 Vt. 420. 
 
 711. See ante, § 154. 
 
 * Gt. Western Ry. Co. v. Willis, * Toledo, etc., R. R. Co. v. God- 
 
 18 C. B., N. S. 748 ; Brewing Co. -». dard, 25 Ind. 185. 
 
 Furness Ry. Co., L. R. Q. B. 468. ' Morse v. Connecticut River R- 
 
 2 Black iJ. Camden, etc., R. R. Co., R., 6 Gray (Mass.), 450. 
 45 Barb. (N. Y.) 40 ; Weeks v. Bar- 
 35
 
 54(3 
 
 EVIDENCE. 
 
 [CIIAP. XV. 
 
 relate h;is transpired, so that they cannot be said to l>c con- 
 nected with and a i)art of the act itself, as an half hour,^ or 
 any other peiiod of time so remote from the principal act 
 that they cannot be said to be a part of il, they are not admis- 
 sible, except where they are made while still discharging a 
 dnty which has been imposed upon him l)y the master, 
 as was the ctuse in the case last cited. Thus, in an 
 action against a railway company to recover damages for 
 runnino- over and kiiliuij: cattle, statements made In^ the 
 engineer, some time after the killing, are not admissible.* 
 
 ' Nashville, etc., R. R. Co. v. Mes- 
 sino, 1 Sneed (Tenn.), 220. 
 
 " Price V. N. J. Railroad Co., 31 
 N. J. L. 229; Aldridge v. Midland 
 Blast Furnace Co., 78 Mo. 539. 
 In Hanover Railroad Co. v. Coyle, 
 55 Penn. St. 402, where a peddler's 
 cart had been overthrown by a rail- 
 way train, in an action for the in- 
 jury the plaintiff was permitted to 
 prove the declarations of the 
 engineer at the time of the accident, 
 for the purpose of .showing the train 
 was behind time, and thus show 
 carelessness and negligence as a 
 part of the res gestCB. The supreme 
 court say : " The record shows no 
 bill of exceptions to this evidence ; 
 but if it did, we cannot say that the 
 declaration of the engineer was no 
 part of the res gestCB. It was made 
 at the time of the accident, in view 
 of the goods strewn along the road 
 by the breaking up of the boxes; 
 and it seems to have grown directly 
 out of and immediately after the 
 happening of the fact. The negli- 
 gence complained of being that of 
 the engineer him.self, we cannot say 
 that his declarations, made upon the 
 spot, at the time, and in view of the 
 effects of his conduct, are not evi- 
 dence against the company as a part 
 of the transaction itself." In Luly 
 V. Hudson River Railroad Company, 
 17 N. Y. 131, where the suit was for 
 
 alleged negligence in running 
 against the plaintiff, the jilainlitf 
 was allowed to prove by a police- 
 man, who was present when the 
 accident occurred, that he, being 
 called on by the crowd then present, 
 arrested the dnver of the car, and 
 while getting out of it and out of the 
 crowd, being asked why he did not 
 stop the car, he said that the brake 
 was out of order. And the Court 
 of Appeals reversed the case be- 
 cause this evidence was admitted, 
 holding that this declaration of the 
 driver was not a part of the res 
 gestae. It was no part of the driver's 
 act for which the company was 
 sued. The court say : "It was not 
 made at the time of the act so as to 
 give it (quality and character. The 
 alleged wrong was complete when 
 he made the statement, and the 
 driver was only end(*avoring to ac- 
 count for what he had done." So in 
 Belfontaine Railroad Company v. 
 Hunter, 33 Ind. 335 ; 5 Am. Rep. 
 201, the coiu-t held that in an action 
 against a railroad company by an 
 administrator to recover damages 
 for the death of his decedent, occa- 
 sioned by the collision of a locomo- 
 tive and train of cars and a wagon 
 in which the decedent was crossing 
 the track, the declarations of the Hi-e- 
 man employed on the locomotive at 
 the time of the collision, made on the
 
 SEC. 171.] 
 
 ADMISSIONS. 
 
 547 
 
 Statements made by the captain of a passenger steamer soon 
 after the injury of a passenger by the lurching of the vessel, 
 that the place was dangerous l^y reason of the al)sence of a 
 hand-rail, and that he could have it remedied, were held inad- 
 missible,^ and the same is true ?is to statements made l)y a 
 conductor, engineer or other employee of a railway company, 
 after an accident,^ 
 
 In a New York case the defendant agreed to pay to the 
 plaintift' a sum of money, in consideration of the plaintiff 
 suflering his wife to live separate, and delivering to her cer- 
 tain property. In a suit for the money, the wife's declara- 
 tions that she had received the property were held admissible 
 against the defendant, she being his agent for this purpose, 
 and her receipt was held evidence of the delivery, as also 
 was her parol admission.^ 
 
 In a Pennsylvania case, the defendant having written to 
 
 arrival of said train bearing- the 
 body of the deceased at a station one 
 mile from the place of the accident, 
 were not admissible as a part of the 
 res gestCB. And in Lum v. Bryant, 
 9 Gray (Mass.), 245, in an action to 
 recover damages sustained by a 
 collision between the defendant's 
 and the plaintiff's carriage, evi- 
 dence that the defendant's servant, 
 who had chai-ge of his carriage, im- 
 mediately after the collision, and 
 while the defendant vvas being taken 
 from his carriage, and while the 
 crowd was about, said the plaintiff 
 was not to blame, yet the court held 
 that this declaration of the defend- 
 ant was not admissible as a part 
 of the res gestCB. The court say : 
 " It was made after the accident 
 occurred and the injui-y to the 
 plaintiff's carriage had been done. 
 It did not accompany the principal 
 act or tend in any way to eluci- 
 date it. It was only the expression 
 of opinion about a past occurrence 
 and not a part of the res gestce. " It 
 is not more competent because made 
 
 immediately after the accident than 
 if made a week or a month after- 
 ward. Land v. Tyngsboi-ough, 9 
 Cush. (Mass.) 36. 
 
 ' American S. S. Co. v. Landreth, 
 102 Penn. St. 131 ; 48 Am. Rep. 196. 
 In Packet Co. v. Clough, 20 Wall. 
 (U. S.) 528, the court, in reference 
 to such admission, said, "The cap- 
 tain of a passenger steamer is em- 
 powered to receive passengers on 
 board, but it js not necessary to this 
 power that he be authorized to ad- 
 mit that either his principal or any 
 servant of his principal has been 
 guilty of negligence in receiving 
 them. There is no necessary con- 
 nection between the admission and 
 the act." 
 
 ^ Virginia, etc., R. R. Co. v. 
 Sayres, 26 Gratt. (Va.) 351 ; Robin- 
 son V. Fitchburg R. R. Co., 7 Gray 
 (Mass.), 92 ; Griffin v. Montgomery 
 R. R. Co., 26 Ga. Ill; Hawker i>. 
 Baltimore, etc., R. R. Co., 15 W. 
 Va. 628 ; 36 Am. Rep. 825. 
 
 ' Fenner v. Lewis, 10 John. (N. 
 Y.) 38, 44, 45.
 
 518 EVIDENCE. [CIIA1>. XV. 
 
 tlu- plaint ill' lliat he woukl be accoimtahle Avitli W, for any 
 contract he would make for the purchiuse of goods, in an 
 action for goods sold to W. it was held that a letter from 
 "W. sul)se(iuent to the })urchasc, acknowledging the purchase 
 of goods from the plaintiff, "was evidence against the defend- 
 ant.' Accordingly it is said the letters of an agent cannot 
 be received in evidence to prove facts stated in thcni. He 
 is a competent witness, and should be sworn to [)r()ve these. 
 But his letters may be received to show what facts he has 
 stated in the course of his business as agent, in order to ex- 
 plain upon Avhat motives and principles the party receiving 
 them acted : though the facts stated nmst be proved other- 
 wise.^ 
 
 In a Connecticut case, in assumpsit for money had and re- 
 ceived, the plaintiff offered in evidence what the defendant's 
 agent who received the money said, and it was held that 
 what he said and did in that transaction was the same as 
 said and done by the defendant.^ To re[)el a ])lea of usury 
 to a [)r()missory note, the plaintiff offered to show what the 
 defendant's son had said while acting as agent in velation to 
 the transaction in question, and it was held admissible.'' 
 So an entry of deposit by the agent of a bank in a bank- 
 l)ook accompanying the deposit, is a conclusive admission 
 against the I)ank ; otherwise if made afterwards.^ So the 
 entry in a bank-book of a dealer, of the amount of his de- 
 posit, made by a teller or clerk of the bank, is an entry by 
 the bank agent. He is noi the agent of the dealer, and a 
 mistake may be shown by the latter.^ So in assumpsit for 
 the price of hides sold by a butcher, against the pro[)rietor3 
 of a tan yard, their general manager of the yard, who had 
 power to buy hides and sell leather, gave the plaintiff three 
 eertiticates of ditierent dates; one that $1,640.75 was due 
 the plaintiff on settlement ; one that $2,843.25, and another 
 
 • Meade v. M'Dowell, .5 Binn. * Mather v. Phelps, 2 id. 150. 
 (Penn.) 195. * Manhattan Co. v. Lydig, 4 John. 
 
 » Blight t). Ashley, 1 Pet. (U. S. C. (N. Y.) 389. 
 
 C.) 15, 21. " Mechanics & Farmei-s' Bank in 
 
 * Perkins v. Burnet, 2 Root the city of Albany v. Smith, 19 John. 
 (Conn.), 30. (N. Y.) 115.
 
 SEC. 171.] ADMISSIONS. 549 
 
 that $1,297.30 worth of hides had been received by him from 
 such a day to such a day, meutioning the time in each cer- 
 tificate, and signed his name ; and these certificates were 
 held admissible to charge the defendants. Marshall, Ch. 
 J., said the proprietors themselves might have given such 
 papers, and their general manager had the same power ; 
 and the court held all the papers receivable in evidence 
 against the defendants, including that which ceitified the 
 settlement or balance struck.^ So to prove a loss on an ad- 
 venture shipped to New York, the account of sales by the 
 factor was received in evidence on proving his signature to 
 the account.^ And the log-book of a ship is evidence for 
 the owner ; but it must be proved to have been regularly 
 made. Proof of the mate's handwriting in many parts, and 
 that a sailor saw him writing '• log-book of the Lydia," the 
 name of the ship, during the voyage, is not enough.^ Such 
 strict proof would, of course, not be necessary where it is 
 used against the owner. So the declaration of a sheriff' or 
 auctioneer as to what property is up for sale, as whether it be 
 the whole farm or only a certain parcel of it, is admissible.* 
 And in assumpsit for ten kegs of dollars, against a bank, the 
 plaintiff' proved that the kegs, being brought to the bank 
 against the plaintiff''s will, were paid out for the debts of the 
 bank by the direction of H. and B., president and cashier 
 pro tempore. And this was held admissible, though H. and 
 B. were both within reach of a subpoena, because a presi- 
 dent and cashier of a bank may direct money in the bank to 
 be paid out for the debts of the institution. But the sub- 
 sequent admission of the president as to a bag of dollars 
 which had been brought into the bank and converted by a 
 stockholder, that this was the plaintiff''s property, was held 
 inadmissible.^ So on a libel against goods, as being forfeited 
 by illegal exportation, in a trade with the Indians, the decla- 
 
 » Barry v. Foyles, 1 Pet. (U. S. C. ^ United States v. Mitchell, 2 
 C.) ;511 ; Rawson v. Adams, 17 John. Wash. (U. S. C. C.) 478. 
 <N. Y.) 130. " Wrig-ht v. Deklyne, 1 Pet. (U. 
 
 » Rich V. Broadfield, 1 Dall. (U. S. C. C.) 199, 201, 204. 
 S.) 16. " The City Bank of Baltimore v. 
 
 Bateman, 7 H. & J. (Md.) 104.
 
 550 EVIDENCE. [ciIAr. XV. 
 
 rations and acts of tlic cx[)()rtcrs' agent, or of any one who 
 acted in conjunction with the exporters in the course of their 
 business, were hekl admissible as evidence against the goods.' 
 So, in a statute proceeding to recover for labor done on the 
 respondent's .ship, he insisted that the libelant had l)een paid 
 by a note of AV. and C, former owners. The libelant insisted 
 that the note was not paid, but renewed and discounted, the 
 money going to W. and C. A witness for the libelant proved 
 that W. and C.'s clerk came to the libelant, and requested 
 him to renew the note, which he did. Objected that this 
 was hearsa}', and that the clerk should be sworn as a wit- 
 ness ; but the objection was overruled. The court sa}, being 
 clerk ol' W. and C, he was their agent ; and his sayings and 
 doinsrs were matters of fact.'^ And thous^h the acts of a 
 deputy surveyor in surveying state lands for A. cannot be 
 given in evidence for him without producing the i)ublic 
 authority under vWiich the deputy acted, yet the unauthor- 
 ized act of the deputy, done or attempted by the procure- 
 ment of A., nui}' be given in evidence against him.^ So in 
 an action by the owners of a vessel on a policy of insurance, 
 the protest of the master and mariners is admissible evidence 
 for the plaintifis, and of course for the defendants,* as, for 
 instance, as to the cause of deviation, or the seaworthiness of 
 the vessel.^ The plaintilV made; an agent to receive certain 
 moneys collected ibr him by the defendant. It was held 
 that the agent's drafts on, and receipts to, the defendant foi' 
 money, his letters in the course of the business to the defend- 
 ant, and an account and balance struck between them in 
 respect to the money, and the agent's admission of payment 
 at the time of so settling, were all evidence for the defendant. 
 The agent need not be made a witness by him.'' So a letter 
 from the debtor's agent (authorized to do tlu; act), directing 
 
 * American Fur Co. v. United M'Coi-d (S. C), 336 ; Campbell v. 
 States, 2 Pet. (U. S. C. C.) 358. Williamson, 2 Bay, 237. 
 
 ' Ship Portland v. Lewis, 2 S. & ' Id. 
 
 R. (Penn.) 197, 208. * Thallhimer v. Brinkerhoff, 6 
 
 » Unger v. Wiggins, 1 Rawle Cow. (N. Y.) 90, 99, 100. And see 
 
 (Penn.), 331. Sherman v. Crosby, 11 John. (N. Y.) 
 
 * Miller v. S. C. Ins. Co., 2 70.
 
 SEC. 171.] ADMISSIONS. 551 
 
 the creditor on which of several debts to apply certain 
 moneys paid, were held admissible to prove the application of 
 the payment.^ In a New York case the party had empk)yed 
 Fitch as agent to sell for him a quantity of l)arilla, who sold 
 part to the defendant, who gave his note. The barilla was 
 in truth worth nothing ; and in an actiou on the note, the 
 defense l)eing that there was fraud, the defendaut proved the 
 declarations of Fitch in respect to the quality of the remaining 
 quantity on hand, after the sale to the defendaut. The court 
 thousfht that, as Fitch was ao-ent for selliuo- the wliolc, his 
 declarations, while engaged in that agency, were admissible 
 against the plaintiff. But the cause went off mainly on 
 another point.^ 
 
 In an action for money had and received, it appeared that 
 the defendants' agents had directions to receive the money 
 and remit it to the defendants. A letter from the ao^ents 
 admitting thc\' had received it — that letter being answered 
 by one from the defendants — was therefore received in evi- 
 dence against the defendants, as a declaration made in the 
 course of their business as agents. The object of the letter 
 was to show the money to be in the hands of the defendants' 
 agents.^ In assumpsit on a promise to remove certain mud, 
 which the defendant's foreman had asked leave to throw on 
 plaintiff's land, on cleansing a stream for the benefit of the 
 defendant's mill, the plaintiff ofiered to prove what the 
 defendant's clerk in his counting-house, and who also had 
 the internal management of the mill, had directed the fore- 
 man as to cleaning the stream and taking away the nnid. 
 It was held inadmissible. The act of throwing out the mud 
 was not within the ordinary business of the defendant as a 
 miller, and the clerk who managed the mill could not, there- 
 fore, interfere. Suppose, said Best, C. J., the defendant's 
 house had been out of repair, the repairing would not, come 
 v;^ithin the business of the clerk as agent in the counting- 
 room.^ In a North Carolina case the acknowledgment of 
 
 ' Mitchell v. Dall, 2 H. & G. ' Coates v. Bainbridge, 5 Bing. 
 
 (Md.) 159, 170. 58. 
 
 ^ Welch V. Carter, 1 Wend. (N. * Shumack v. Lock, 10 B. Moore, 
 
 Y.) 185, 190, 191. 39.
 
 5,-, 2 EVIDENCE. [cUAr. XV. 
 
 the cashier of a bank, that a note had Ijeen i)ai(l, was received, 
 and hekl prima facie evidence againtit the l)ank.* So where 
 the wife of the pUiintill', who was shown to be the plaintilPs 
 a<^cnt for the puipo.se, dechired that the demand in question 
 had been sold b}' her to F., this was held admissible as evi- 
 dence ao-ainst the plaintifl', and that any one might safely 
 treat with F. couceniing it.'- In this ea.^e the plaintiff had 
 left the state, leaving the whole control of this business with 
 
 his wife. 
 
 But where the declarations or admissions of an agent re- 
 late to a matter not within the scope of his authority, they 
 arc not admissil)lc against his principal, although they refer 
 to acts within his authority f and this has been held to be the 
 rule even when the admissions of the agent were contained 
 in a sworn answer to a bill in equity.^ Thus in an action for 
 work and labor, the plaintiff was allowed to prove by D. the 
 declaration of the defendant's agent concerning buildings 
 erected l)y the plaintiff on the farm of a third person, with 
 whom it did not appear the defendant had any connection. 
 This was left to the jury, with instructions that, if they be- 
 lieved D., they should find for the plaintiff. It was held 
 erroneous, for no coimection was shown between the defend- 
 ant and the third person. ° In a Virginia case the defendant, 
 by F., his agent, purchased certain trees of the plaintiff's 
 intestate. It was held that a subsequent wnitten account, 
 made by F., of the timber cut under F.'s direction for the 
 defendant, was not admissible in evidence against him.^ So 
 in assumpsit for the price of pig iron, the delivery was sought 
 to be proved by the certificate of the defendant's clerk, dated 
 November, 1815, that the quantity of pig iron delivered to 
 him by the plaintitf in October and November, 1814, was so 
 much. It was held inadmissible, it being a past transaction, 
 
 ' State Bank v. "Wilson, 1 Dev. * Leeds v. Marine Ins. Co., 2 
 
 (N. C.) 484. Wheat. (U. S.) 380. 
 
 " Curtis V. Ingham, 2 Vt. 287, * Irvine v. Buckaloe, 12 S. & R. 
 
 289. (Penn.) 35. 
 
 ' Webb 1). Alexander, 7 Wend. ' Pasteur •». Parker, 3 Rand. (Va.) 
 
 <N. Y.) 281 ; Barclay v. Howell, 6 458. 
 Pet. (U. S.) 404.
 
 SEC. 171.] ADMISSIONS. 553 
 
 aiid not a receipt given at the time, which, semble, would 
 have been evidence. Tlie plaintiff should have sworn the 
 clerk as a witness.' Again : in an action for money had and 
 received, the claim arose from the defendant having received 
 money from the treasury for certain rations furnished to the 
 arm_Y by one BradshaAv. The plaintiffs claimed that Brad- 
 shaw, now deceased, was their agent in furnishing tiie rations ; 
 and the defendant, that he was his aoent in furnishinsf them. 
 The defendant offered in evidence a written statement of facts 
 by Bradshaw, respecting the matter in controversy, made to 
 be submitted to referees in a controversy between himself 
 and one Duncan, and it was held inadmissible. The plain- 
 tiffs then offered in evidence Bradshaw's letter denying that 
 the defendant had supplied the rations ; but this was in 
 answer to certain declarations of his to the contrary, which 
 the defendant had given in evidence, and it was held admis- 
 sible only in this point of view, but not as proof of an inde- 
 pendent fact.'-^ In an action for money paid as a premium in 
 effecting an insurance for the defendant, W., as the defend- 
 ant's agent, requested the plaintiff to insure, and gave to the 
 plaintiff his (W.'s) own note, but failed. The plaintiff offered 
 to prove the subsequent declarations of W., that the defend- 
 ant would pay the debt, and it was held inadmissible. The 
 reason given is, that W. was agent only to effect the policy, 
 not to bind the defendant by a subsequent promise to pay.^ 
 So in ejectment founded on an entry and survey, the ad- 
 mission of the plaintiff's agents and surveyors that they had 
 agreed to a survey which should not interfere with the defend- 
 ants, was held inadmissible against the plaintiff, not being 
 made in the course of their acts as agents, but afterwards.'* 
 But in the New York case the surveyor was dead, and it was 
 a declaration as to boundaries, and in the case from Peters, 
 the declarations of the surveyor were while he was acting as 
 
 * Glassei-Tj. Reno,6S. &R. (Penn.) * Meredith v. Kennedy, Litt. Sel. 
 
 206. Cas. (Ky.) 516. See M'Cormick v. 
 
 " Turnbull ^\ O'Hare, 4 Yeates Baraum, 10 Wend. (N. Y.) 104, and 
 
 (Penn.), 446. Barclay v. Howell, 6 Pet. (U. S.) 498. 
 
 ^ Millick V. Peterson, 2 Wash. (U. 
 S. C. C.) 31.
 
 554 EVIDENCE. [CIIAP. XV. 
 
 such. Ill trover against four, two of them owners, and two 
 aiTouts ot' the ownei-s in managing a warehouse, the two agents 
 admitted that they, by the owners' orders, converted the 
 phiintill's wliiskey, which he had at the warehouse ; but their 
 admissions were held inadmissible, as the}'^ were not made at 
 the time of their doing the acts complauied of.' In a New 
 York case the plaintiff appointed an agent to settle with and 
 receive money from the defendant for a debt. The defendant, 
 to i)rove a settlement and payment between him and the 
 asrent, offered in evidence an account current, to which the 
 asrent had made an attidavit, and it was held not admissible, 
 it being the admission of past acts of the agent, and the ad- 
 mission not within the scope of his authority.'^ So the dec- 
 larations of one who had been an agent to make a contract, 
 after he had made it, though he Avas still an agent to make 
 like contracts for the same party, were held inadmissible to 
 atlect his principal in respect to the terms or construction of 
 the former contract ; for such were not a part of the res 
 geskd? 
 
 80 the declarations of an agent that he had given license 
 to enter and cut timber are not admissible against his piin- 
 cipal. being an admission of what was past.* The maker 
 gave a proposition for time on his note at the bank to the 
 cashier, who, as he promised, submitted the proposition to 
 the directors, and came and told the maker that the propo- 
 sition had been accepted. It was proposed to give this in 
 evidence against the bank, the cashier being their general 
 agent, which fact was admitted. But it was held that, not- 
 withstanding, this information wms not a part of the res gestm. 
 He did not himself make the contract for time ; it was made 
 by the directors. He merely carried the proposal and brought 
 l)ack the answer : and the information being but hearsay, it 
 was held the agent must be sworn.^ An agent a[)pointed to 
 superintend the execution of a survey in a suit of chancery 
 
 * Roberts, etc., \\ Burks, Lift. * Hubbard v. Elmer, 7 Wend. 
 Sel. Cas. Ky. 411. (N. Y.) 446. 
 
 ' Thallhimer v. Brinckerhoff, 4 ' Grafton Bank v. Woodward, 5 
 Wend. (N. Y.) 804. N. H. 301. 
 
 • Haven v. Brown, 7 Me. 421.
 
 SEC. 172.] ADMISSIONS. 555 
 
 has no authority to admit the notoriety of any object whose 
 notoriety may be material in the cause.' In detinue for the 
 plaintift''s goods, pawned without his authority to the de- 
 fendant, a pawnbroker, the only evidence to charge the 
 defendant with possession was the admission of the defend- 
 ant's shopman, made at the house of the plaintiff's attorney, 
 and TiNDAL, C. J., delivering tlie opinion of the court, said 
 if the transaction had been one in the ordinary trade and 
 lousiness of the defendant as a pawnbroker, in which trade 
 the shopman was his agent or servant, a declaration that his 
 master had received the goods might probably have been 
 evidence, as it might be held within the scope of the shop- 
 man's authority to give an answer to an inquiry made by any 
 person interested in goods deposited with tlie pawnbroker. 
 But he said this deposit was on an ordinary loan at five per 
 cent, out of his line as pawnbroker, a case in respect to which 
 the shopman had no authority. 
 
 Sec. 172. Knowledge of, or Notice to, Agent aflfects Principal, when. 
 
 It is well settled that notice to an agent, actual or implied, 
 relative to a matter affecting his agency and while such 
 agency exists, is notice to the principal, and such is also the 
 rule as to a knowledge of facts relating to the business of his 
 agency, acquired while acting for his principal ;^ and this 
 rule applies with equal force where a person in the first 
 instance assumed to act for another Avithout authority, but 
 
 ^ Robinson v. Morgan, Litt. Sel. An. 80 ; Mundine v. Pitts, 14 Ala. 
 
 Cas. (Ky.) 56. 84 ; Smyth v. Ohver, 31 id. 39 ; Page 
 
 * Wood on Railways, 457 ; Walker v. Brunt, 18 111. 37 ; Musser v. Hyde, 
 
 V. Ayers, 1 Iowa, 449; Astor v. 2 W. & S. (Penn.) 314; Fowler v. 
 
 Wells, 4 Wheat. (U. S.) 466 ; Reed's Halbert, 4 Bibb (Ky.), 52 ; Boyd v. 
 
 Appeal, 34 Penn. St. 207 ; Hough t). Vanderkamp, 1 Barb. (N. Y.) Ch. 
 
 Richardson, 3 Story (U. S. C. C), 273 ; Owens v. Roberts, 46 Wis. 258 ; 
 
 659 ; Sutton v. Dillaye, 3 Barb. (N. Pepper v. George, 51 Ala. 190 ; 
 
 Y.) 529 ; Varnum v. Milford, 4 Mc- Rouch v. Kan-, IS Kan. 329 ; Allen 
 
 Lean (U. S. C. C), 93; Patten v. v. Poole, 54 Miss. 323; Saulsbury ■??. 
 
 Merchants', etc., Ins. Co., 40 N. H. Wimberley, 60 Ga. 78 ; Campan v. 
 
 375 ; Wiley v. Knight, 27 Ala. 336 ; Konan, 39 Mir-h. 362 ; Hier r. Odell, 
 
 Keenan v. Missouri Ins. Co., 12 18 Hun (N. Y.), 314 ; Sooy iJ. State, 
 
 Iowa, 126 ; Ingalls v. Morgan, 10 41 N. J. L. 394. 
 N. Y. 178 ; Felter v. Field, 1 La.
 
 55G 
 
 EVIDENCE. 
 
 [CIIAP. XV. 
 
 whose act in that respect was ratified by the principal — the 
 rule being that if he takes the I)enefit of the act, he umst 
 take it charged with notice of such matters as were at the 
 time withhi the knowledge of the agent.^ But in order to 
 inii)ute the knowledge of the agent to the principal, it must 
 he shown that he acquired the knowledge ichi/e acting as such 
 agent ; and it must relate to the business of his agency."^ 
 
 Upon this proposition the authorities are by no means 
 uniform, and many respectable decisions are to be found sus- 
 taining both the athrmative and the negative ; but it seems 
 to us that as the rule in either view is arbitrary, and as the 
 notice at best is only constructive, and mag never in fact 
 have been given to the principal, it should be restricted to such 
 notice and knowledge of facts as is received by the officer or 
 agent, not only at a time when he ivas an officer or an agent, 
 but also when he ivas acting as such, and that the rule 
 wtbli is adopted in some of the cases,^ — that the question 
 
 * Hovey v. Blanchard, 13 N. H. 
 145. 
 
 * Brown v. Bankers, etc., Tel. Co., 
 30 Md. 39. See cases cited post, 
 n., p. 
 
 * Fairfield Savings Bank v. Chase, 
 72 Me. 226; Distilled Spirits, 11 
 Wall. (U. S.) 356 ; Lebanon Saving's 
 Bank v. Hallenback, 29 Minn. 322 ; 
 Dresser xi. Norwood, 17 C. B. N. S. 
 466; Ingalls v. Morgan, 10 N. Y. 
 178 ; Hovey v. Blanchard, 13 N. H. 
 145 ; Choteau v. Allen, 70 Mo. 290. 
 But see Ford v. French, 72 id. 250 ; 
 Fii-st National Bank of High.stown 
 V. Christopher, 41 N. J. L. 435 ; 29 
 Am. Rei>. 262. A distinction has 
 been taken between knowledge of 
 illegality or want of consideration of 
 a note by a director who acts with 
 the board in discounting it, and 
 such knowledge on the part of a di- 
 rector who is not present and acting 
 with the board when the discount is 
 made. In the former case it has 
 been held that the bank is bound by 
 hia knowledge ; in the latter it is 
 
 not. Bank of the United States v. 
 Davis, 2 Hill (N. Y.), 451 ; North 
 River Bank v. Aymar, 3 id. 262 ; 
 National Security Bank v. Cush- 
 man, 121 Mass. 490 ; Farmers', etc., 
 Bank v. Payne, 25 Conn. 444 ; Far- 
 rell Foundry v. Dart, 26 id. 376 ; 
 National Bank v. Norton, 1 Hill(N. 
 Y.), 572 ; Washington Bank v. Lewis, 
 22 Pick. 24 ; The President, etc., v. 
 Cornen, 37 N. Y. 320 ; 2 Lead. Cas. 
 in Eq. 171, note to Le Neve v. Le 
 Neve. The question how far the 
 knowledge of an officer of a corpo- 
 ration, which he acquired outside 
 of the business of the company, and 
 which was not, in fact, conununi- 
 cated to the cori^oration, is binding 
 upon it, when it relates to dealings 
 between the officer and the coipo- 
 ration, was considered by the chan- 
 cellor in Barnes v. Trenton Gaslight 
 Co., 27 N. J. Fq. 33. The bill was 
 filed to set aside a conveyance made 
 by executors in fraud of the powers 
 contained in the will. The convey- 
 ance was made to Mr. Potts, who
 
 SEC. 172.] ADMISSIONS. 557 
 
 as to whether such notice or knowledge, received by an agent 
 before he was appointed as such, shall be imputable to the 
 principal, depends upon the circumstance ivhetJier the fact 
 was present in the mind of the agent when acting for the 
 principal, so fully that he could not have forgotten it — is 
 both unreasonable and unjust. In these cases, the court 
 seems to lose sight of the consequences of such a rule, and 
 also of the circumstance that, while the rule relative to such 
 knowledge of au agent rests upon a presumption that the 
 agent would do his duty and disclose the facts to his princi- 
 pal, yet the presumption is irrebuttable, and the principal is 
 not permitted to show that the agent did not in fact dis- 
 charge his duty. 
 
 This rule opens up a new field of inquiry in such cases, 
 which is one of fact, to wit, whether the fact sought to be 
 imputed to the principal was in the mind of tlte agent at the 
 time of the transaction in reference to ivhicJt it should he dis- 
 closed. . Who should determine this fact ? If, however, as 
 seems probable from the qualification of the rule by the 
 
 was the legal adviser of the execu- imputed to his client in another case, 
 
 tors, and also president of the gas- In Yenger v. Banz, 56 Iowa, 77, it 
 
 light company. Potts conveyed was held that the principal is not 
 
 directly to the company, and the affected by information imparted to 
 
 bill charged notice on the defend- his agent before the agency existed, 
 
 ants solely on the ground that at the which has not Ijeen i-etained in 
 
 time of the conveyance to the com- mind by the agent. It will be seen 
 
 pany Mr. Potts was its president, that in all these cases the doctrine is 
 
 On demurrer, it was held that the predicated upon a doubtful pre- 
 
 information which came to Mr. sumption that the agent, by reason of 
 
 Potts' knowledge, as counsel of the the shortness of the time which has 
 
 executors, was not constructively elapsed since the information was 
 
 notice to the corporation, and that received, retained it in mind at the 
 
 the company was a bona fide pur- time of the transaction for the prin- 
 
 chaser without notice. In Choteau cipal. Bat the trouble with the 
 
 V. Allen, ante, it was held that the i-ule is, that while the jpresumption 
 
 principal is affected with knowledge upon which it rests is doubtful, it is 
 
 of such facts by the agent as the nevei-theless irrebuttable, and pre- 
 
 agent had acquired previously to eludes all testimony to show that 
 
 the agency, and whicJi Tie had in the agent did not Jiave the knowl- 
 
 mind at the time of the transaction edge in mind, and that he did not 
 
 for the principal. But in Ford v. in fact communicate it to the prin- 
 
 French, a7ite, it was held that cipal. Depde, J., in First National 
 
 knowledge of facts acquired by an Bank ?;. Christopher, ante. 
 attorney in one case could not be
 
 558 EVIDENCE. [CIIAP. XV. 
 
 courts — to the effect that the knowledge inu.st l)e so fully 
 present to the mind of the agent when acting for the princi- 
 pal Mrt^ /^e co?</rZ not have forgoUen it — it is intended that 
 the presumption shall l)e irrebuttable, then the harshness and 
 absurdity of the rule is still more glaring. Now, who has the 
 power to say what the capacity of the agent's memory is ? It 
 is a matter demonstrated by universal experience that the 
 powers of memory vary greatly in different persons, and while 
 one person will remember even trifling circumstances for a 
 lomj period, yet other equall}^ competent persons will forget 
 the most im[)()rtant facts within a very few hours. So, too, it is 
 well understood that circumstances may exist at the time of a 
 transaction which suppress the remembrance of important 
 facts connected therewith, until it is too late to make use of 
 them. There is not probably a business man who has not 
 had the truth of this proposition demonstrated in his own 
 experience ; consequently, as there is and can be no presump- 
 tion that a person carries in his mind for any considerable 
 period a recollection of every circumstance that he has had 
 an acquaintance with, there is no reason for the doctrine re- 
 ferred to. This being so, it seems to us that the only rea- 
 sonable and just rule in reference to imjiuting the knowledge 
 of an agent to his principal, is that which is so universally 
 adopted, confining it to knowledge of facts relating to the 
 agency, and acquired at a time when he was discharging the 
 dnties of his agency.' In England the rule is now as stated 
 
 ' Astor V. Wills, 4 "Wheat. (U. v. George, 51 Ala. 190 ; Plympton v. 
 
 S.) 466; Reed's Appeal, 34 Penn. Preston, 4 La. An. 356; Musser v. 
 
 St. 207 ; Walker V. Ayers, 1 Iowa, Hyde, 2 W. & S. (Penn.) 314; 
 
 449 ; Houf,'h v. Richardson, 3 Story Bracken v. Miller, 4 id. 102 ; Bank 
 
 (U. S.), 659; Sntton v. Dillaye, 3 of United States v. Davis, 2 Hill 
 
 Barb. (N.Y.) 529; Wiley v. Knight, (N. Y.), 452; New York Central 
 
 27 Ala. 336; Keenan v. Missouri Ins. Co. v. Protection Ins Co., 20 
 
 Ins. Co., 12 Iowa, 126. In Mundine Barb. (N. Y.) 468 ; United States 
 
 V. Pitta, 14 Ala. 84, the court held Ins. Co. v. Shriver, 3 Md. Ch. 381 ; 
 
 that notice to an agent or counsel Miller v. Illinois Central R. R. Co., 
 
 when he is engaged in another V)usi- 24 Barb. (N.Y.) 312; Winchester 
 
 ness at another time will not lie con- v. Baltimore, etc., R. R. Co., 4 Md. 
 
 structive notice to his principal or 231 ; General Ins. Co. of Maryland 
 
 client employing him aftenoards. v. United States Ins. Co. of Balti- 
 
 See also, to the same effect, Pepper more, 10 Md. 517 ; Commercial
 
 SEC. 172.J 
 
 ADMISSIONS. 
 
 559 
 
 in the Maine case ; but clear and satisfactory ])roof is re- 
 quired that the facts were so present in the agenCs mind. 
 
 Bank v. Cunningham, 24 Pick. 
 (Mass.) 270; Washing-ton Bank v. 
 Lewis, 22 id. 24. In McConib v. 
 Chicag-o, etc., R. R. Co., 7 Fed. Rep., 
 it was held that an officer of a cor- 
 poration cannot be raade a party to 
 a Ijill of discovery when, he did not 
 derive the information in his official 
 capacity. In National Bank v. 
 Norton, 1 Hill (N. Y.), 572, it was 
 held that notice of dissolution of a 
 partnership, published in a news- 
 paper, and thus accidentally reach- 
 ing one of several directors of a 
 bank, is not equivalent to actual 
 notice to the bank. Co wen, J., 
 said : " He happened to know the 
 fact of dissolution, as a director or 
 other corporator may do, without 
 perhaps being aware that the bank 
 could be prejudiced by it. Not 
 having any intimation that it was 
 material, it is too much, even if the 
 point were in the case, to insist on a 
 presumption that he ever communi- 
 cated the fact to the board. Not 
 having acquired the knowledge as 
 director, there is no room for pre- 
 sumption eithei- on the ground of 
 duty or intent." In Bank of United 
 States V. Davis, 2 Hill (N. Y.), 451, 
 where a bill of exchange was sent 
 to a director of a bank to be dis- 
 counted for the benefit of the drawer, 
 and the former, who was a member 
 of the board who ordered the dis- 
 count to be made, received the avails, 
 alleging that the discount was for 
 his own benefit, it was held that the 
 bank was chargeable with knowl- 
 edge of the fraud. The court said : 
 "The general inile is undisputed 
 that notice to the agent is notice to 
 the principal, if the agent comes to 
 the knowledge of the fact whilf^ he 
 is acting for the principal in the 
 coui-se of the very transaction which 
 
 becomes the subject of the suit ; for 
 upon pi-inciples of general policy it 
 must be taken for granted that the 
 principal knows whatever the agent 
 knows." " I agree that notice to a 
 director, or knowledge derived by 
 him while not engaged officially in 
 the business of the bank, cannot and 
 should not operate to the i^rejudice 
 of the latter. This is clear from the 
 ground and reason upon which the 
 doctrine of notice to the principal 
 through the agent rests. The prin- 
 cipal is chai-geable with this knowl- 
 edge for the reason that the agent 
 is substituted in his i)lace, and 
 represents him in the particular 
 transaction ; and as this relation, 
 strictly speaking, exists only while 
 the agent is acting in the business 
 thus delegated to him, it is proper 
 to limit it to such occasions." North 
 River Bank ?). Aymai', 3 Hill (N. 
 Y.), 262, 275 ; Fulton Bank v. New 
 York & Sharon Canal Co., 4 Paige 
 Ch. (N. Y.) 127. In La Farge Ins. 
 Co. V. Bell, 22 Barb. (N. Y.) 54, it 
 was held that an insurance company 
 taking moi-tgages subsequent in 
 date to an unrecorded deed of the 
 same premises is not chargeable 
 with constructive notice of such deed 
 from the fact that the grantor and 
 mortgagor was at the date of both 
 deed and mortgage a director in the 
 insurance company. The court said : 
 *' If his position as a director could 
 make him the agent, or rather iden- 
 tify him entirely with the plaintiffs in 
 such sort as to charge them with con- 
 structive notice of all the facts with 
 which he was personally acquainted, 
 as to the title to lands in which they 
 had any interest, in any case, it can- 
 not be so when he did not become 
 concerned as their especial agent or 
 transact business in their behalf.
 
 500 
 
 EVIDENCE. 
 
 [chap. XV. 
 
 I low is the fact to be estiiblisliecl ? If by the oath of 
 the agent, and he states that the fact was prestnt in 
 
 Most clearly it cannot be the case 
 where the facts concerned his own 
 ]>rivate affairs, and the transaction 
 was one in which he was dealing 
 with the company as a third party 
 on Tiis own behalf, and acting for 
 himself with and againstthem." In 
 Genei-al Ins. Co. v. United States 
 Ins. Co., 10 Md. 517, it was held 
 that notice given to a director of a 
 corporation, privately, or which he 
 acipiires from rumor, or through 
 channels open to all alike, and 
 which he does not communicate to 
 his associates at the board, will not 
 bind the corporation. In Farmers 
 and Citizens' Bank v. Payne, 25 
 Conn. 444, it was held that the 
 knowledge of a bank director, as to 
 the object for which commercial 
 paper was delivered to a party 
 offering it to the bank for discount, 
 the director not being present when 
 it was offered and discounted, and 
 not having communicated his knowl- 
 edge to any other director or officer, 
 was not notice to the bank. The 
 court said: "'The general rule on 
 this subject is that notice of a fact 
 to an agent is notice to the principal 
 if the agent has knowledge of it 
 while he is acting for the principal 
 in the course of the transaction 
 which is in question. And this rule 
 is applicable equally to corporations 
 and natural persons. Hence, 
 knowledge of a material fact, im- 
 parted by a director of a bank to 
 the board of directors at a regular 
 meeting of them, is obviously notice 
 to the bank. It has also been de- 
 cided in some cases, that notice to 
 either of the directors, while en- 
 gaged in the business of the bank, 
 is notice to tho b.ink. Wh"tli<')', 
 hnwcvi-r. th<} knowledge of a director 
 who is present at a meetiiig of a 
 
 board of directors when paper ia 
 discounted, on his application and 
 for his benefit, is, under the rule 
 which has been stated, to be 
 imputed to the bank, is a question 
 on which there is a diversity of 
 opinion, but one which it is unnec- 
 essary here to determine. Whether 
 such knowledge should be treated 
 as notice to the bank in that case 
 would probably depend on the ques- 
 tion whether the dii-ector should be 
 deemed to have been acting as a 
 director and in behalf of the bank 
 when the transaction took i)lace." 
 In Farrell Foundry v. Dart, 26 id. 
 376, where a defective deed had 
 been recorded, and a director of a 
 corporation not acting as an agent 
 thereof, and having no management 
 of its business otherwise than as 
 director, went to the town records 
 to ascertain the situation of the land, 
 and there saw the record of the 
 deed, but did not inform the cor-j 
 poration or any of its agents, it was! 
 held that the corporation was not by 
 reason of these facts chargeable 
 with knowledge of the deed. 
 Louisiana State Bank v. Senecal, 
 13 La. 525. In Housatonic Bank v. 
 Martin, 1 Met. (Mass.) 294, it was 
 held that knowledge of facts by a 
 mere stockholder in an incorporated 
 manufacturing company or bank is 
 not notice to the coi-poration of the 
 existence of those facts. In Smith 
 V. South Royalton Bank, 32 Vt. 341, 
 it was held that if a bank director 
 acts in behalf of the bank in a trans- 
 action of which the bank takes the 
 benefit, notice to the director at the 
 time of any fact material to the 
 transaction is notice to the bank. 
 Ill Houseman v. Girard Mut. B. & 
 L. Association, 81 Penn. St. 256, L.. 
 desiring a loan from j^laintiffs, to be
 
 SEC. 
 
 172.] 
 
 ADMISSIONS. 
 
 561 
 
 his mind, but that he did not communicate it to the prin- 
 cipal, then the principal is made to suflfer for the negligence 
 
 secured, by mortgage on his prop- 
 erty, plaintiffs' conveyance!- ordered 
 searches for liens ; through L. he 
 procured a certificate from the re- 
 corder that there were no mortgages 
 on the property ; on this the loan 
 was made. There being prior mort- 
 gages given by L., not certified, on 
 the sale of L.'s property by the 
 sheriff the proceeds did not reach 
 to pay the loan. It was held that 
 the I'ecorder was liable to the jilain- 
 tiffs for the loss, and the employ- 
 ment of L. to procure the certificate 
 did not affect the plaintiffs with his 
 knowledge. The court said : " It 
 is urged that by the employment of 
 the owner as the agent for this pur- 
 pose the defendants are affected 
 with this knowledge of the existence 
 of the mortgage which was omitted 
 in the certificate. This is a very 
 familiar principle and well settled. 
 But it is equally well settled that 
 
 the principal is only to be af- 
 fected by knowledge acquired in 
 
 the course of the business in which 
 
 the agent was employed. This 
 
 limitation of the rule is perfectly well 
 
 established by our own cases, and it 
 
 it not necessary to look further. 
 
 HoodtJ. Fahnestock, 8 Watts (Penn.), 
 
 489 ; Bracken v. Miller, 4 W. & S. 
 
 (Penn.) 110; Martin v. Jackson, 27 
 
 Penn. St. 508. It is a mistake to 
 
 suppose that it depends upon the 
 
 reason that no man can be supposed 
 
 to always cai-ry in his mind a recol- 
 lection of former occurrences, and 
 
 that if it be proved that he actually 
 
 had it in his mind at the time, the 
 
 rule is different. It may support 
 
 the reasonableness of the rule to 
 
 consider that the memory of men is 
 
 fallible in the very best, and varies 
 
 in different men. But the true rea- 
 son of the limitation is a technical 
 
 36 
 
 one, that it is only during the agency 
 that the agent represents and stands 
 in the shoes of his principal. Notice 
 to him is then notice to his principal. 
 Notice to him twenty-four hours be- 
 fore the relation commenced is no 
 more notice than twenty-four hours 
 after it had ceased would be. 
 Knowledge can be no better than 
 direct actual notice. It was in- 
 cumbent on the plaintiff to show that 
 the knowledge of the agent, to use 
 the accurate language of one of our 
 cases, 'was gained in the transac- 
 tion in which he was employed.' 
 There was not only no evidence of this 
 offer by the plaintiff, but it was plain 
 that it had been gained before, and 
 in an entirely different transaction." 
 See also Fari-ington v. Woodward, 
 82 id. 259. In Willis v. Vallette, 4 
 Met. (Ky.) 186, it was held that no- 
 tice to an agent is constructive 
 notice to his princijjal only when ac- 
 quired in the course of the trans- 
 action in which he is acting as agent. 
 To the same effect, Howard Ins. Co. 
 V. Halsey, 8 N. Y. 271. In Mc- 
 Cormick v. Wheeler, 36 111. 114, it 
 was held that a party cannot be 
 charged with notice of facts within 
 the knowledge of his attorney, of 
 which the latter acquired knowledge 
 while acting as attorney for another 
 person. The court said: "The 
 English courts have recently mani- 
 fested a disposition to depart from 
 this rule, but we deem it a principle 
 just in itself, and founded on wise 
 considerations of policy." In Ford 
 V. French, 72 Mo. 250, it was briefly 
 held that the knowledge acquired 
 by an attorney while acting for one 
 client will not affect another client, 
 for whom he is acting at the same 
 time in a diffei-ent case. But on the 
 other hand : In Donald v. Beals, 57
 
 562 
 
 EVIDENCE. 
 
 [CIIAP. 
 
 XV 
 
 or fraud of his agent as to matters occurring ])cfore 
 his agency eonimcuced, and when he had no possililc reason 
 
 Cal. 399, two mortgages, one tu D, 
 ami one to N., were depofciiteil in a 
 county ck'i'k's office for record, 
 April 15, the one to D. at four 
 o'clock, and the one to N. at five 
 o'clock. By a clerical mistake it 
 was noted on the D. mortgage that 
 it was deposited on April 18. This 
 mistake occui'red in the i-ecord book 
 and in the certificate annexed to the 
 mortg'age. N. sold and assigned 
 her mortgage to C, who employed 
 an attorney to examine as to the 
 charactei" of the security. C. did 
 not examine the record, but his at- 
 torney had full knowledge that the 
 mortgage to N. was not prior in 
 record. The attorney acted both 
 for C. and N. It was held that his 
 knowledge was imijutable to C. 
 Said the court : " The knowledge 
 of an attorney is the imputed knowl- 
 edge of his client. It is a well-set- 
 tled doctrine of English law, that if 
 the agent, at the time of effecting a 
 purchase, have knowledge of any 
 prior lien, trust or fraud affecting 
 the property, no matter when he ac- 
 quired such hnowledge, his princi- 
 pal is affected thereby," — citing 
 Distilled Spirits, 11 Wall. (U. S.) 
 367. As to the question of notifica- 
 tion to a coi-poration through an 
 agent, the American cases are as 
 follows : In Commercial Bank v. 
 Cunningham, 24 Pick. (Mass.) 270, 
 it was held that the circumstance 
 that the indorser of a discounted 
 note was a director of the discount- 
 ing bank, is not constructive notice 
 to the bank that the note was made 
 for his accommodation. In Wa-sh- 
 ington Bank v. Levns, 22 id. 24, a 
 bank director got possession of a 
 note for discount for the owner, and 
 instead he pledged it to the bank 
 for his own debt. It was held that 
 
 as he did not act in his capacity of 
 director in procuring the discount, 
 the bank was not aflected by his 
 knowledge of the circumstances 
 under which he procured it. The 
 court said : " The argument is, that 
 though Thompson was not the agent 
 of the bank, yet as he was a director, 
 his knowledge of the facts under 
 which the note was procured is the 
 knowledge of the bank. If this 
 ar^'-ument could be maintained, it 
 would follow that if a director 
 should procure a note to be dis- 
 counted, by the fraudulent con- 
 cealment of material facts which 
 he was bound to disclose, or even 
 by false pretenses, the bank would 
 have no remedy. If Thompson had 
 been authorized to discount this 
 note, and did discount it, the argu- 
 ment might hold good. Whatever a 
 dii'ector or othei- agent of a bank 
 may do within the scojie of his au- 
 thority, would bind the bank so as 
 to make them responsible to the 
 person dealt with. But in the 
 present case Thomjjson was the 
 party applying for the discount, and 
 was not acting as director, nor 
 could he with propriety so act. The 
 courts in this country which have 
 adopted the i-ule that a principal 
 shall be charged with knowledge 
 of facts obtained by an agent 
 before he entered ujjon his agency, 
 are few, and the reasons given by 
 them for this extraordinaiy doctrine 
 are not such as will be likely to 
 commend them to other courts." 
 Tagge V. Tennessee National Bank, 
 9 Heisk. (Tenn.) 479 ; Hart v. 
 Farmers' Bank, 33 Vt. 252 ; Fair- 
 field Savings Bank ■?'. Chase, 72 Me. 
 22(5 ; Distilled Spirits, ante ; Dis- 
 tilled Spirits. 11 Wall. (U. S.) 3i>6. 
 Some Massachusetts cases are some-
 
 SEC. 173.] ADMISSIONS. 563 
 
 to apprehend such consequences, and when there is no possi- 
 ble way of evading them. This rule would make it exceed- 
 ingly dangerous for corporations or individuals to employ 
 agents at all ; and in this country, at least, it has no considera- 
 ble foothold, and in England the contrary rule was held by 
 its ablest judges. 
 
 "Where the counsel comes to have notice of the title in 
 another affair," says the Lord Keeper,^ << * * * that shall not 
 be such a notice as to bind the party." " If a counsel or 
 attorney," says Lord Hardwicke,^ "is employed to look 
 over a title, and by some other transaction foreign to the 
 business in hand has notice, this shall not effect the pur- 
 chaser ; for if this was not the rule of the court, it would be 
 of dangerous consequence, as it would be an ol)jection against 
 the most able counsel, because of course they would bo more 
 likely than others of less eminence to have notice, as 
 they are engaged in a great number of affairs of this kind." 
 In the case previously cited from the United States Supreme 
 Court, 3 which seems to be the authority upon which the 
 courts of this country which have adopted this doctrine 
 predicate it, — the court did not undertake to support its posi- 
 tion by any line of reasoning, l)ut was satisfied to accept it 
 simpl}^ because the English courts had adopted it, which is 
 hardly sufficient to commend the doctrine to the better class 
 of our courts. 
 
 Sec. 173. Admissions by Guardians, Nominal Parties to the Record, 
 Executors, Etc. 
 
 While admissions made by a party to a suit in interest are 
 
 receivable in evidence against him, yet admissions made by 
 
 times cited as sustaining this rule, ai-d, 220 ; Cross v. Smith, 1 M. & S. 
 
 but upon examination it will be seen 545 ; Hein v. Mill, 13 Ves. 113; 
 
 that the knowledge imputed to the Mountford v. Scott, 3 Madd. 34. 
 
 principal was acquired by the agent But in this case, upon appeal, Lord 
 
 during his agency. Security Bank Eldon made an intimation of a 
 
 V. Cushman, 121 Mass. 490 ; Lunt possible exception to this rule, fore- 
 
 V. Woodhall, 113 Mass. 391. shadowing the doctrine we have 
 
 ^ Preston v. Tubbin, 1 Vern. 287. combated in the text, which has 
 
 ' Lowther v. Carlton, 2 Atk. 242. lately been seized u:pon by the Eng- 
 
 See also Warrick v. "Warrick, 3 lish courts as a pretext for adopting 
 
 Atk. 294 ; Le Neve v. Le Neve, 3 the rule so foreshadowed by him. 
 
 id. 646 ; Street v. Whittaker, Barn- ' Distilled Spirits, ante.
 
 5G4 
 
 EVIDENCE. 
 
 [chap. XV. 
 
 a merely nominal party are not adniis.sible. Thus, if the as- 
 signee of a bond sues the obligor in tlie name of the original 
 oblio-ec, or if a cestui que trad brings an action in the name 
 of his trustee, or if the jussiguee of any chose in action brings 
 suit thereon in the name of the assignor, as the plaintilF is 
 only nominally so, the real plaintiff is not bound by his 
 admissions, and they are not admissil)le in evidence against 
 him.^ And even though a receipt has been given l)y the 
 
 * Bent V. McKinstry, 4 Minn. 204 ; 
 Wynne v. Glidwell, 17 Intl. 44(3; 
 Bates V. Ableman, 13 Wis. 044 ; My- 
 ers V. McKeiizie, 26 111. 26 ; Frear 
 V. Evei-tson, 20 John. (N. Y.) 142; 
 Canton v. Baldwin, 27 Tex. 572; 
 Lewis??. Long, 3 Munf. (Va.) 136; 
 Peck V. Grouse, 46 Barb. (N. Y.) 
 151 ; Bartlett v. Marshall, 2 Bibb 
 (Ky.), 470; Heywood v. Reed, 4 
 Gray (Mass.), 574; Scott v. Hall, 6 
 B. Moil. (Ky.) 285; Palmer v. Cas- 
 sin, 2 Cranch C. Ct. 66; State v. 
 Jennings, 10 Ark. 428; Patrick v. 
 McWilliams, 23 Ga. 348 ; Scott v. 
 Coleman, 5 Lilt. (Ky.) 349; Gilli- 
 ghan V. Tebbetts, 33 Me. 360; 
 Cooke V. Cooke, 29 Md. 538 ; Tap- 
 ley V. Forbes, 2 Allen (Mass.), 20 ; 
 Wing V. Bishop, 3 id. 456 ; Garland 
 V. Hari-ison, 17 Mo. 282; Norton v. 
 Woods, 5 Paige (N. Y.)', 249 ; Han- 
 na V. Curtis, 1 Barb. (N. Y.) Ch. 
 263; Wilson v. Hanson, 20 N. H. 
 375 ; Burroughs v. Jenkins, Phill. 
 (N. C.) Eq. 33. The admissions by 
 the assignor of a chose in action, 
 made while he is the o%vner thereof 
 and before assignment, are evidence 
 against his assignee and all claim- 
 ing under him. Bro^\^l V. McGraw, 
 20 Miss. 267 ; Gallagher v. William- 
 son, 23 Cal. 331. Where an a.ssign- 
 ment for the benefit of creditors is 
 attacked as fraudulent, it is compe- 
 tent for the creditors attacking it to 
 prove the declarations of the assig- 
 nor, made after the assignment was 
 delivered, but before the schedules 
 
 were made out and attached, and 
 while the assignor was engaged in 
 prepai'ing them Wyckoff v. Carr, 
 8 Mich. 44. The admissions of an 
 insolvent debtor after the sale of his 
 property by the trustee or mortga- 
 gee are inadmissible to impeach the 
 title of the purchaser, unless it is 
 shown affirmatively that they were 
 assented to by him, or made in his 
 presence without objection on his 
 part. Sutter v. Lackmann, 39 Mo. 
 91 ; Johnson v. Holdsworlh, 4 Dowl. 
 63 ; Payne v. Rogers, 1 Doug. 407 ; 
 Manning v. Cox, 7 Moore, 617 ; In- 
 nell V. Newman, 4 B. & Aid. 419 ; 
 Hickey v. Burt, 7 Taunt. 48 ; Man- 
 utstephen v. Brooke, 1 Chitty, 390 ; 
 Legh V. Legh, 1 B. & P. 447. The 
 rule was formerly otherwise in Eng- 
 land. Bauerman v. Rodenius, 7 T. 
 R 659; Crails v. D'Eth, 7 T. R. 
 666, n. 6 ; and in some of our courts. 
 Plant V. McEwen, 4 Conn. 544 ; 
 Bulkley v. Landon, 3 Conn. 76. 
 This loile was predicated upon the 
 ground that, a chose in action not 
 being assignable so as to enable the 
 assignee to sue thereon in his own 
 name, he is bound by the acts and 
 sayings of the assignor. But a con- 
 trary view prevails in this country, 
 and the assignee is protected against 
 any dealing between the debtor and 
 assignor, after notice to the former, 
 or any set-off acquired after -such 
 notice, though not before, will be 
 found to prevail to its fullest extent, 
 being in some of the States partially
 
 SEC. 
 
 173.] 
 
 ADMISSIONS. 
 
 565 
 
 nominal plaintiff, the parties may show that the money has 
 never in fact been paid ; ' or if in fact paid, that it was paid 
 after the assignment.^ The same rules prevail as to a j)ro- 
 cliehi amy or guardian,^ unless made in good faith, in a pend- 
 ing suit, for the purpose of the trial only, in which case their 
 admissions are binding upon the same principle that the ad- 
 missions of an attorney would be. 
 
 Admissions made by the representative of an estate will 
 bind him in any suit against him in his representative capac- 
 ity,'* but they are not evidence against his co-administrators,^ 
 nor against a special administrator.^ Where tliey I'cltite to 
 acts done by him, or of which he has full control in his rep- 
 
 sanctioned by statute, as well as the 
 authority of their courts. Welch v. 
 Mandeville, 1 Wheat. (U. S.) 233; 
 Mandeville i). Welch, 5 id. 277 ; Cor- 
 ser V. Craig-, 1 Wash. (U. S. C. C.) 
 424 ; Bholen 'e. Cleveland, 5 Mas. 
 (U. S. C. C.) 174 ; Green v. Darling, 
 5 Mas. (U. S. C. C.) 201 ; Wistar v. 
 Walker, 2 BrowTie (Penn.), 166; 
 McCuUum V). Coxe, 1 Dall. (U. S.) 
 139; Field v. Biddle, 2 Dall. (U. S.) 
 172, note ; Steele v. The Phoenix 
 Ins. Co., 3 Binn. (Penn.) 306; Can- 
 by V. Ridg-way, 1 Binn. (Penn.) 496 ; 
 Wheeler v. Hug-hes, 1 Dall. (U. S.) 
 23 ; Ingles r. Ingles' Ex'rs, 2 Dall. 
 (U. S.) 49; Rundle v. Ettwein, 2 
 Yeates (Penn.), 23 ; Solomon v. Kim- 
 mel, 5 Binn. (Penn.) 232 ; Bury v. 
 Hartman, 4 Serg. & Rawle, 177; 
 Brindle v. Mcllvaine, 9 Serg. & 
 Rawle, 72 ; Buchanan %i. Taylor, 
 Addis. (Penn.) 155; Aldricks v. 
 Higgins, 16 Serg. & Rawle, 212; 
 Boulden t,. Hebel, 17 Serg. & Rawle, 
 312 ; Metzgar t>. Metzgar, 1 Rawle 
 (Penn.), 227; Stevens v. Stevens, 
 Ashm. (Penn.) 190 ; Perkins v. Par- 
 ker, 1 Mass. 117; Andrews v. Her- 
 ring, 5 Mass. 210 ; Boylston v. Boyls- 
 ton, 8 Mass. 465 ; Dawes %\ Boylston, 
 ^ Mass. 337 ; Crocker v. Whitney, 
 10 Mass. 316 ; Jones v. Witter. 13 
 Mass. 304; Sergent v. Essex Ry. 
 
 Corp., 9 Pick. (Mass.) 202; Farr tj. 
 Hemmingway, 2 Const. Rep. (S. C.) 
 753; Wadsworth ii. Griswold, 1 
 Harp. (S. C.) 17 ;• Stoney xr. Mc- 
 Neil, 1 Harp. (S. C.) 156; Smith t). 
 Lyons, 1 Harp. (S. C.) 334 ; Ware v. 
 Key, 2 McCord (S. C), 373; Strong 
 ■?). Strong, 2 Aik. ( Vt. ) 373 ; Lamp- 
 son V. Fletcher, 1 Vt. 168 ; Tichout 
 V. Cilly, 3 Vt. 415 ; Clark v. Rogers, 
 2 Me. 143 ; Robbins v. Bacon, 3 id. 
 346. 
 
 ' Wallace v. Kelsall, 7 M. & W. 
 273. 
 
 " Mandeville v. Welch, 5 Wheat. 
 (U. S.) 277; Welch v. Mandeville, 
 1 Wheat. (U. S.) 233. 
 
 ^ Because they are officers of the 
 court appointed to look after the in- 
 terests of the ward. Sinclair v. Sin- 
 clair, 13 M. & W. 640 ; Webb v. 
 Smith, Ry. & M. 106 ; Cowling ■«. 
 Ely, 2 Starkie, 366; Morgan v. 
 Thorne, 7 M. & W. 408. 
 
 * Heywood v. Heywood, 10 Allen 
 (Mass.), 105; Emerson v. Emerson, 
 16 Mass. 429 ; Wilson v. Terry, 9 
 Allen (Mass.), 214 ; Haleyburton v. 
 Kershaw, 3 Dessau. (S. C.) 105 ; Al- 
 len V. Allen, 26 Mo. 327. 
 
 " Walkup V. Pratt, 5 H. & J. (Md.) 
 53. 
 
 ■= Rush V. Peacock, 2 M. & R. 162.
 
 566 EVIDENCE. [chap. XV. 
 
 resentativc capacity, whidi become material to be sliown, 
 they may be shown to atl'cct the estate ; but as a rule, where 
 they relate to matters in which he had no part, they cannot 
 be shown to allcct the estate, even when made in a bill in 
 eijiiity.' But the declarations of an executor, a party to the 
 record, who is also a legatee under the will, may go to the 
 jury upon the trial of a caveat to the will f but if he has no 
 interest under the will, his declarations are not admissible 
 upon the (piestion of its validity.^ The declarations or ad- 
 missions of the decedent are, in a proper case, admissible 
 against the estate,"* but not for it, unless they form a part of 
 the res gesloi.^ 
 
 Sec. 174. Adnxissions by Privies. 
 
 Where there is a privity of interest between parties, the 
 admissions of one are, in a proper case, evidence against the 
 other, and where there is a mutual or successive relutionship 
 to the same right between the parties, there is a privity of 
 interest, and these are classiiied as privies in estate, in blood, 
 by law, and by representation. Privity of estjite exists where 
 the parties are identified in interest as lessoi-s and lessees, 
 donors and donees, joint tenants, etc., and the rule admitting 
 the admissions of one privy in estate against another, is never 
 extended beyond this identity of interest. Privies in Ijjood 
 embrace hcii-s, ancestoi's, and coparceners. Privies by rep 
 resentation comprise executors and testators and adminis- 
 trators and intestates. Privity in law arises where the 
 law, without privity of blood, takes an estate from one and 
 bestows it on another.^ The rules admittins: this class of 
 
 ' Fellows V. Fellows, 37 N. H. 7.5 ; 605 ; Gardner v. Heffley, 49 Penn. 
 
 Crandall v. Gallup, 12 Conn. 365 ; St. 163 ; Burckmyer v. Mairs, Riley 
 
 Elwood V. Diefendorf, 5 Barb. (N. (S. C), 208. 
 
 Y.) 398; Dent ■?). Dent, 3 Gill. (Md.) * Cramer v. Pinckney, 3 Barb. 
 
 482 ; Mar.shall v. Adams, 11 111. 37. (N. Y.) Ch. 466 ; Wilson v. Wilson, 
 
 "Williamson v. Nabers, 14 Ga. OMif^h. 9; Perry ii. Roberts, 17 Mo. 
 
 286 ; Peeples v. Stevens, 8 Rich. (S. 36 ; Whitfield v. Whitfield, 40 Miss. 
 
 C.) 398. 352. 
 
 ' Roberts v. Trawick, 13 Ala. 68. • Co. Litt. 271 «; Beverly's Case, 4 
 
 * Hale r. Monroe, 28 Md. 98 ; Coke, 123 ; Carver v. Jackson, 4 Pet. 
 
 Malann v. Ammon, 1 Grant (Penn.), (U. S.) 183. 
 126 : Boone r. Thompson, 17 Tex.
 
 SEC. 174.] ADMISSIONS. 567 
 
 evidence are analogous to those which are found in the doc- 
 trine of estoppels, and which govern the admissibility of ver- 
 dicts, judgments, and depositions. Thus, as to privies in bk)od 
 and privies in hiw, the decUirations of a deceased occupier 
 of huid, that he rented it under a certain person, arc evidence 
 of that person's seizin against a party cUiiming as the heir- 
 at-law of such occupier, to explain the nature of the occu- 
 pation, and to show that it was not adverse.^ The declara- 
 tions of an intestate are evidence against his administrator.^ 
 But in an action by a special administrator, appointed dur- 
 rino- the absence from the country of the executor named in 
 the will,^ it Avas held that the declarations of the latter, made 
 by him while he was the acting executor, were not admissible 
 against the plaintiff.'* 
 
 In reference to admissions made by persons who have 
 been privies in estate with those against whom the admissions 
 are used, the evidence, after their decease, is generally ad- 
 missible on a different principle, as being a declaration against 
 interest. And when the persons are alive, the evidence may be 
 admissible, in some cases, as explanatory of acts done or for- 
 borne, or of the fact of possession. But without reference 
 to either of these principles, it would seem that an admission 
 by a proprietor or occupier possessing any interest would be 
 evidence as to the nature and extent of that interest, against 
 a party who was in privity of estate with him.'* An answer 
 in chancery is admissible in evidence against a privy in estate,^ 
 
 ' Human v. Pettett, 3 B. & A. 223 ; 140 ; Jones v. Jones, 21 N. H. 219 ; 
 
 Peaceable v. Watson, 4 Taunt. 16 ; Smith v. Moi-gan, 8 Gill (Md.), 133 ; 
 
 Bagaley v. Jones, 1 Camp. 367. Hai-vey v. Anderson, 12 Geo. 69 ; 
 
 These points are illustrated by the Colgan v. Philips, 7 Rich. (S. C.) 3o 
 
 doctrine concerning the admissi- See Bi'own v. Mailler, 14 N. Y. 118. 
 
 bility of verdicts against privies in ' Taynton v. Hannay, 3 B. & P. 26. 
 
 law and in blood. Locke v. Nor- ■■ Rush ?>. Peacock, 2 Mo. & R. 162. 
 
 bonne, 3 Mod. 141 ; Outramt). More- ^ Manton v. Thrupp, 9 Bing. 41 ; 
 
 wood, 3 East, 346 ; Co. Litt. 352 a ; Walker v. Broadstock, 1 Esp. 458 ; 
 
 Com. Dig. tit. Estoppel, B ; 3 T. R. Davies v. Pierce, 2 T. R. 53 ; Doe 
 
 365. V. Rickerby, 5 Esp. 4 ; Tindal v. 
 
 * Smith V. Smith, 3 N. C. 32. The Whitrow, 1 C. & P. 22 ; Pritchard 
 
 plaintiff was regarded as claiming v. Jauncey, 8 C. & P. 99. 
 
 under the intestate, though, in fact, ^ Sussex v. Temple, Ld. Raym. 
 
 he need not have done so. See also 310. In this case the court went too 
 
 Humphreys v. Boyce, 1 Mo. & R. far in determining that the answer
 
 568 J-^ IDKNCK. |riIAI'. \V. 
 
 jukI ;i statement in a lease l)y a landlord has been held ad- 
 missihlc ai^ainst a person who clainis nnder a snhseqnent lease 
 of the same land.' 
 
 An admission hy a tenant in possession, who is defendant 
 in an action of ejectment, is evidence against a co-defeudant, 
 who defends as a landlord.^ 
 
 Bnt it seems that the mere decyuations of tenants will 
 not in iicneral be evidence against their reversioners,^ and 
 the dcclaratit)ns of a former oecnpier of the defendant's land 
 have been held not to be admi.-sible against the (U'fendant, 
 npoii a (piestion whether the plaintiti* had an easement in the 
 laud.' 
 
 AUhouiih ancient books of snrvey and ancient maps, when 
 they arc not in the nature of public documents, have been 
 in some cases considered as not being legitimate evidence of 
 boundary, even where they might seem u[)on principle to be 
 receivable upon the ground that the boundary was a matter 
 of public interest and concern ; yet this species of evidence 
 is fre(iuently available by way of admission, where there is a 
 privity of estate between the person against whom the survey 
 or map is used and the person directing it to be made. Thus 
 it was held by Holt, C. J., that if A. be seized of the 
 manors of B. and C, and during his seizin of both he cau.ses 
 a survey to be taken of the manor of li., and afterwards 
 the manor of B. is conveyed to E., and afterwards theie 
 are disputes between the lords of the manors of B. and C. 
 about their boundaries, this old survey may be given in evi- 
 dence.^ 
 
 might be read against pei-sons in ^ Bridgman v. Jennings, 1 Ld. 
 
 occupation of property, on proof Raym. 734 ; B. N. P. 283 ; Davies 
 
 that it was the reputation of the v. Pierce, 2 T. R. 43 ; Allott v. Wil- 
 
 county that the lands had belonged kinson, 4 Gwill. 1585 ; 2 E. & Y. 
 
 to the person making the answer. 203. That such a survey is not evi- 
 
 ' Crease 1). Barrett, 1 C, M. & R. dence against a stranger: Anon., 
 
 932; Strode?'. Seaton, 2 A.l. & VA. 171. 1 Ld. Raym. 734. It has been said 
 
 ' Mee V. Lithei-land, 4 Ad. & Kl. that an old map has been allowed in 
 
 384. evidence, where it came along with 
 
 * By Patterson, .1., in Tif^kle v. the writings, and agreed with the 
 Brown, 4 Ad. & El. 378. boundaries adjusted in an ancient 
 
 * Scholes V. Chadwick, 2 Mo. & R. purchase. Gilb. Ev. 78. 
 507.
 
 SEC. 175.] ADMISSIONS. 569 
 
 But as a person cannot be regarded a privy in estate with 
 a subsequent possessor of the estate, except during the time 
 when the estate was in his own possession, it has been held 
 that an answer in chancery, respecting the title to an ad vow- 
 son, filed by one who had been formerly seized of the ad- 
 vowson, but who had conveyed it away twenty years before 
 the answer, was not admissible against a person claiming the 
 advowson through him.' And admissions by a mortgagor, 
 made jifter he had parted with his interest "by a settlement, 
 have been held not to be admissible on behalf of a mortsfa- 
 gee, to show that the money had actually been advanced on 
 the mortoasre. the mortojao-ee seekiuo^ to avoid the settlement 
 us being voluntary."^ 
 
 Sec. 175. Rule applicable in Cases of Personalty. 
 
 This rule as to privity of estate is generally applied to 
 cases of real property, but the principle is equally applicable 
 in matters relating to personalty, where an ideutity of interest 
 exists ; and where a chattel or a personal contract has been 
 assigned, the declarations of the assignor are generally ad- 
 missible against the assignee. Thus it has been held, upon 
 an issue between tAvo persons, whether a third person died 
 possessed of certain personal property, that evidence might 
 be given of a declaration, made by that third person, that he 
 had assigned the property, the party against whom the dec- 
 larations were adduced claiming under that person.-^ 
 
 ' Gully V. Exeter, 5 Bing. 171. of the mares at the time of her death. 
 
 * Sweetland v. Webber, 1 Ad. & The plaintiff contended that she had 
 
 El. 733. given them to him some time befoi-e, 
 
 ^ Wilstead -y. Levy, 1 M. & R. 138 ; and tendered in evidence her dec- 
 SnelgTOve v. Martin, 2 M'Cord, 241 ; larations to that effect. These were 
 Hatch u Dennis, 10 Me. 244 ; Gibble- rejected at the trial, but the court 
 house V. Strong, 3 Rawle (Penn.), above held that they were admis- 
 437; Harrison v. Vallance, 1 Bing. sible, as they were against her 
 45, Ivat V. Finch, 1 Taunt. 141, was interest, and the right of the lord 
 an action of trespass for taking three depended upon her title . But where 
 mares, the property of the plaintiff, the fact of this depeiylence is not di- 
 The defendant who was lord of the rectly raised by the issue, such dec- 
 manor, justified under a heriot cus- larations vnll be inadmissible ; and 
 torn ; and the sole question between in Stotherd v. James, 1 C. & K. 121, 
 the parties was, whether one Alice whei-e an issue was directed to try, 
 "Watson, the tenant, was possessed whethei- goods seized in A. 's house
 
 fiTt) 
 
 EVIDENCE. 
 
 [chap. XV. 
 
 But where the question was whether certain goods which 
 had hci'U seized under uji./a. against A. were his property, 
 or ihc property of the piainliU", who claimed under a sale ; 
 and in older to .>;lio\v that the sale was fraudulent, it was 
 pro[tosed to give in evidence a statement made by A. when 
 the execution went in, and while he remained in possession. 
 
 at the suit of the defendant were the 
 property of the phiintiff, the dec- 
 lai'ations of A. respecting^ the prop- 
 erty were held to be inadmissible, 
 inasmuch as on that narrow issue 
 the defendant would succeed, 
 whether the goods belonged to A. 
 or to any other person besides the 
 plaintifl". Had the issue i-aised the 
 (juestion, whether the goods be- 
 longed to A. at the time of the ex- 
 ecution, it would seem, on principle, 
 that his declarations made before 
 the seizure would have been evi- 
 dence against the defendant ; al- 
 though in Prosser v. Gwillim, 1 C. 
 & K. 95, on an issue similar to that 
 which was raised in Stothei-d v. 
 James, "Wightman, J., rejected the 
 debtor's admissions, on the ground 
 that the execution creditor claimed 
 adversely to him. 
 
 These admissions by third per- 
 sons, as they dei-ive their value and 
 legal force from the relation of the 
 party making them to the property 
 in fpiestion. may be prorcd hi/ any 
 (■(Yinpetnit untiiess who heard them, 
 without calling the jiarty by whom 
 they were made. The question is. 
 whether he made the admission, and 
 not merely whether the fact is a.s he 
 admitted it to be. Its truth, where 
 th admission is not conclusive (and 
 it .seldom is so), may be controvei-ted 
 by olher testimony, even by calling 
 the party himself, when competent ; 
 but it is not necessary to produce 
 him. his declarations, when admis- 
 sible at all, being received as original 
 evidence, and not as hearsay. Wool- 
 
 way V. Rowe, 1 Ad. & El. 114 ; 
 Brickell v. Hulse, 7 Ad. & El. 454. 
 The tbne and circuiiustanves of the 
 admission are to be considered, and 
 whenever the declarations of a thii-d 
 person are offered in evidence, on 
 the ground that the party against 
 whom they are tendered derives his 
 title from such jierson, it must be 
 shown that they were made at a 
 time when the declarant had an 
 interest in the i)roperty in (luestion ; 
 because it is manifestly unjust, that 
 a person, who has i>arted with his 
 interest in property, should be em- 
 powered to divest the right of an- 
 other claiming under him, by any 
 statement which he may choose to 
 make. Doe v. \Vebl)er, 1 Ad. & 
 El. 740. Thus, the admission of a 
 former party to a bill of exchange, 
 made after he has negotiated it, 
 cannot, under any circumstances, 
 be received against the holder. 
 Pocock V. Billing, 2 Bing. 269 ; Shaw 
 V. Broom, 4 D. & R. 730 ; Roberts 
 V. Justice, 1 C. & K. 93. And where 
 a person had, by a voluntary post- 
 nuptial settlement, conveyed away 
 his interest in an estate, and after- 
 wards had executed a mortgage of 
 the same property, it was held that 
 his admission that money had 
 actually been advanced upon the 
 mortgage could not be received on 
 behalf of the mortgagee, who was 
 seeking to set aside the former 
 settlement as voluntary and void. 
 Doe V. \Vebt)er, 1 Ad. & El. 733 ; 
 Gully V. Exeter, 5 Bing. 171.
 
 SEC. 175.] ADMISSIONS. 571 
 
 it was ruled that the evidence was not receivable.' So upon 
 the trial of an issue, directed to ascertain whether certain 
 goods which had been seized \)y the she rift' under a Ji. fa. 
 against a third party, at the suit of the defendant, were the 
 goods of the plaintiff', who claimed them imder an assignment, 
 it was held by Wightman, J., that a statement, made by the 
 third party before the execution went in, was not admissible 
 on behalf of the plaintiff, as the execution creditor did not 
 claim under the third party, but adversely to him.'- And 
 upon a similar issue, Maule, J., rejected the declarations of 
 the debtor as to the property in the goods, upon the ground 
 that, if they did not belong to the plaintiff, the defendant 
 would succeed on the issue, whether they belonged to the 
 debtor or to any other person except the plaintiflV An 
 admission by a person who takes a bankrupt's goods in execu- 
 tion, that he knew an act of bankruptcy had been committed, 
 is not evidence against the person who takes the goods by 
 assigimient from the sherift', where the admission is subsequent 
 to the assignment.'' As to admissions by persons in possession 
 of chattels or neo:otia])le securities being evidence against 
 subsequent holders, which may be thought analogous to ad- 
 missions by privies in estate, it appears to be a rule, that 
 where a pei'son must recover through the title of another^ he is 
 bound hy the declaration of the party through whom he claims. 
 Thus, if a person bring an action upon a bill of exchange, the 
 declaration of a person who, at the time when such declara- 
 tion was made, was holder of the bill, and who had not 
 parted with it till after it was due, is evidence against the 
 plaintiff, being made by one according to whose title his own 
 must stand or fall.^ So in an action by the indorsee against 
 the acceptor, where the defense is that the bill was obtained 
 by fraud, declarations of the drawer to that eftect are admis- 
 sible, if it can be shown that the plaintilf was privy to the 
 fraud.^ 
 
 ' Roberts v. Justice, 1 C. & K. 93. ^ Benson v. Marshall, cited in 
 
 ^ Prosser v. Gwilliin, 1 C. & K. 95. Shaw v. Broom, 4 D. & R. 731. See 
 
 ^ Stothert v. James, 1 C. & K. also Beauchamp v. Parry, 1 B. & 
 
 121. Ad. 89. 
 
 * Deady v. Harrison, 1 Stark. R. s p^ckham v. Potter, 1 C. & P. 
 
 60. 232.
 
 57 _' EVIDENCE. [CIIAP. XV. 
 
 But it seems that the :in:ih)!zy with respect to tlie admis- 
 sions of privies in estate is not adhered to where the title to 
 negotiable instruments is derived from persons who have 
 made admissions, hut where there is not any existing identity 
 of interest. In such eases, the right of a pei-son hokling by 
 u "-ood title is not to be cut down l)y the acknowledgment 
 of a former holder that he had no title. Thus, in an action 
 l»y the indorsee against the maker of a promissory note pay- 
 able with interest on demand, the declarations made by the 
 payee, whilst the note was in his poasession, to the effect that 
 he t^ave no consideration for it to the maker, were held in- 
 admissibli- for the defendant, on the ground that the plaintitl' 
 could not be identitied with the payee, the bill not Ix^ing 
 overdue at the time of the indorsement.^ The declarations 
 were not those of a jjcrson holding the negotiable security 
 under the same circumstances as the party to the action. It 
 has been held- that as the indorsee of a promissory note does 
 not claim l)y the title of the indorser, but has a title of his 
 own as indorsee, he ought not to l)e affected l)y any declara- 
 tions of the indorser, — the note not being taken without 
 consideration, or after it was due, — notwithstanding the dec- 
 larations were made whilst the indorser Avas in possession of 
 the note. But where it appears that the indorsee is merely 
 the agent to sue for the indorser, the declarations of the latter, 
 whilst he was holder, are evidence against the Ibimer.^ 
 
 " Baroug-h v. White, 4 B. & C. the case might be different. It is 
 
 325 ; explained in Woolwayi). Rowe, to be observed that in Kent v. 
 
 1 Ad. & El. ] 16. .See also Phillips Lowen, the lettei-s were the usuriou.s 
 
 1). Cole, 10 Ad. & El. 106 ; Smith v. conti-act itself, and it can make no 
 
 De "Wruitz R. & M. 212. difference whether an act consist of 
 
 " Beauchamp v. Parry, 1 B. & A. oral declarations oi- not. Some con- 
 89. An exception is there made as fusion is, however, introduced into 
 todeclai-ationscotemporaneouswith the case by Lord Ellenboroogh 
 the making of an instrument, and stating that evidence of an act done 
 the ca.se of Kent v. Lowen, 1 Camp, was admi.'^sible against pereona 
 177, wa.s referred to, where letters claiming under those who did the 
 from the payee to the maker wei-e act— whereas the admis.sibility of 
 admitted, which stated an usurious the evidence does not appear to de- 
 consideration for the note. It was pend on the privity of the parties, 
 said that if the declarations had " Welstea<l v. Levy, 1 Mo. & R. 
 been made as in the case of Kent v. 138 ; Harrison v. Vallance, 1 Bing. 
 Lowen, at the time of the contract, 45.
 
 SEC. 176.] ADsnssroNS. 573 
 
 Admissions respecting the subject-matter of a cause, by a 
 person who at tlie time of making them had the same interest 
 in such matter as one of the parties to the cause, are admis- 
 sible in evidence against that party, though the person who 
 made the admissions is aUve and might he called as a witness.' 
 The same rule applies to admissions of agents, which are re- 
 ceivable in evidence against principals, as being binding upon 
 them. There might seem to be some reason for a distinction 
 between the rule respecting agents, and that which relates to 
 declarations against interest, inasmuch as in the latter case 
 the party to the suit is to be affected by the declarations of 
 a person with whom he had no community of interest, and 
 for whose assertion he is not responsible. 
 
 Sec. 176. Principal and Surety. 
 
 It is a general rule, founded on principles of justice in re- 
 gard to the relation of principal and surety, that the surety 
 ought not to be affected by an admission made by his prin- 
 cipal, although he may be affected by declarations or state- 
 ments made by the principal ivhen ihey are connected ivilh 
 the business in respect of which the surety becomes bound, and 
 are made by the principal at the time of transacting that busi- 
 ness;^ and this is the rule, although the surety was not pres- 
 ent.3 Thus, where a person had become surety by a bond 
 for the faithful conduct of a clerk, it was held, in an action 
 upon tho bond, that an admission by the clerk, made after 
 he was discharged, of various sums which he had embezzled. 
 
 ^ Woolway ?>. Rowe, 1 Ad. & El. Montg-omeiy, 23 Barb. 464 ; Doug- 
 
 114; Brickell v. Hulse, 7 Ad. & El. lass v. Rowland, 24 Wend. (N. Y.) 
 
 454. 35-58; Coan v. Osgood, 15 Barb. 
 
 "" Bondurant v. Bank, 7 Ala. 830 ; (N. Y.) 583 ; Snell v Allen, 1 Swan 
 
 Com. V. Kendig-, 2 Penn. St. 448 ; (Tenn.), 208. In an Alabama caso 
 
 Dunn V. Slee, Holt, 401. Nor is a it was held that the jirincipal's ad- 
 surety affected by a judgment re- ' mission is not admissible against hi.« 
 
 covered against his principal, ad- surety unless it is a part of thfe rea 
 
 judging him to have been guilty of gestGB. Walker v. Forbes, 25 Ala. 
 
 fraud and misconduct as a general 139 ; Blair v. Inslea, 10 Mo. 550. 
 
 guardian, the surety not having ^ Chapel v. Washburn, 11 Ind. 
 
 been a party to the suit. Clark v. 393.
 
 574 EVIDENCE. [CHAl'. XV. 
 
 wjiri not receivable in evidence against tlie snicty.' But in 
 dcl)t against a surety for his princi[)ars einbczzlcmont the 
 indiclinont ilrawn ui) by tiie plainliU's attorney is adniissibUi 
 to show what was chiiniod to be onibezzk'd.* So, in an ac- 
 tion upon a guaranty to [)ay for goods sokl and delivered to 
 a third person, what such person lias admitted respecting the 
 delivery of the goods is not evidence to charge the pei-son 
 giving the guaranty.^ 
 
 Entries made by a deceased person in the course of duty, 
 or by which he has charged himself with the receipt of 
 money, being admissible as against all the world,'' are of 
 course evidence against a [)erson who has become his surety 
 that he would keep his accounts faithfully.^ 
 
 The admissions of a principal are admissible to affect his 
 own liai)ilitv, although his sureties are parties defendant in 
 the suit. 
 
 The statement of a constable, when presenting a note to 
 the maker for payment, that the note was in his hands for 
 collection, is admissible in evidence against the sureties of 
 the constable, in an action to recover for a failure by the 
 constable to pay over the money collected on the note.^ 
 
 lu an action against a surety the admissions and declara- 
 tions of the i)rincipal. who had deceased, made against his 
 interest, at a time when he could have had no motive to mis- 
 
 ' Smith V. Whitti.ifrham, 6 C. & but there seems to have been no 
 
 P. 78. In CutlHi- J'. NewUn, Man- evidence to show that the defendant 
 
 mng's Dig. N. P. 137, on the execu- was indemnified by the bailiff; and 
 
 tion of a writ of inquiry on an in- as the bailiff was alive, it would ap- 
 
 demnity l)ond, an admission by the pear that he might have been called 
 
 principal of the amount of damnifi- as a witness. 
 
 cation was considered by Holkoyd, " Fireman's Ins. Co. v. McMillan, 
 
 J., inadmissible. In Perchard v. '29, Ala. 148. 
 
 Hamilton, 1 Esp. 394, which was an ' Evans v. Beattie, 5 Esp. 26. 
 
 action by a shenff upon a bond to * Gleadow v. Atkin, 1 C. & M. 423. 
 
 indemnify him against defaults of * Goss V. Watlington, 3 B. & B. 
 
 hi.s bailiff, a written admission by 132 ; Whitnash v. George, 8 B. & C. 
 
 the bailiff of having received levy 5.'>t5 ; Middleton v. Melton, 10 B. & 
 
 money was held by Lord Kknyon, C. 317 ; McGahey v. Alston, 2 M. & 
 
 C. J., to be admissible against the W. 20B. 
 
 defendant. It was so ruled i»y him * Haekleman v. Moat, 4 Blax^kf. 
 
 on the ground that the bailiff was in (Ind.) 164. 
 
 fact the defendant in the action ; ' State v. Grupe, 36 Mo. 36.5.
 
 SEC. 176.] ADMISSIONS. 575 
 
 represent, and in relation to facts with which he must have 
 been well acquainted, were held to be evidence against the 
 surety.' 
 
 Where a bond for performance of the duties of collector of 
 tolls was given to the canal commissioners of New York, bear- 
 ing date June 1st, with a certificate of the sureties' sufficiency 
 indorsed thereon, by a public officer, under date of June 
 25th, it was held that the admissions of the commissioners 
 that they presumed the bond was not delivered to them, or 
 accepted by them, until after the certificate of approval was 
 thus indorsed, was not suflicient to repel the legal presump- 
 tion that the bond was delivered and accepted on the day of 
 its date, when the admission was accompanied with the dec- 
 laration that they had no recollection as to the time when 
 the bond was delivered.^ If the evidence as to the time of 
 execution be balanced, the date will be held to be the true 
 time.^ A cashier of a l>ank, in a suit against his surety, was 
 charged with having converted to his own use, at specified 
 times, and some time before certain declarations oifered in 
 evidence were made, several sums of money belonging to the 
 plaintiff. These facts constituted the breach of the bond re- 
 lied on in the suit against the surety, and were the facts in 
 issue. It was held that evidence not tending to show what 
 the cashier said or did, or the entries he made at the time he 
 received and converted the money^ was improperly received 
 against the surety.* But in a suit upon a bond against the 
 executor of the principal and his sureties, evidence is admis- 
 sible of the declarations of the deceased principal that he was 
 in default on the bond.^ So in a joint action against a 
 cashier and his sureties on his bond, the admissions and dec- 
 clarations of the cashier, as to his defaults, are evidence 
 against the sureties.*' And in scire facias against an indorser 
 of a writ, declarations of the defendant to an officer who is 
 seeking to collect of him the execution issued on the judg- 
 
 ' Hinckley v. Davis, 6 N. H. 210. ♦ Stetson v. City Bank of N. 0., 
 
 " Seymour v>. Van Slyck, 8 Wend. 2 Ohio St. 167. 
 
 (N. Y.) 404. * Mahaska v. Ingalls, 16 Iowa, 81. 
 
 ' Allen v. Rhodebaugh, Wright ' Amherst Bank v. Root, 2 Met. 
 
 (Ohio), 322. (Mass.) 522.
 
 57G KVIDENCK. [chap. XV. 
 
 iiKMit ill the orijrinal suit, are coiiipotcnt.^ But the admis- 
 sions of a priiu'iiuil as to his liabiUty to a i)laiiitiir, niado 
 after a hreaeh of his contract, are uot competent evidence 
 ajjainst his surety.^ 
 
 Sec. 177. Offers of Compromise. 
 
 Oilers of compromise, or otfers in the nature of pacification 
 of litiixation, expressly or impliedly made without prejudice, 
 ui)oii grounds of pul)lic policy, are not admissible in evi- 
 dence against the parly making them.^ This rule, as was 
 stilted by Loud Mansfield, is predicated upon the ground 
 that " it must be permitted to all men to buy their peace, 
 without prejudice to them, should the otter not succeed, such 
 otters being made to stoj) litigation, without regard to the 
 (juestion whether anything is due or not." If, therefore, the 
 defendant, on being sued for a certain sum, should otter the 
 plaintiir a less sum, and at the same time state that such otter 
 was made without prejudice, such ofler is not admissible in 
 evidence, for it is irrelevant to the issue ; it neither admits 
 nor luscertains any debt, and is no more than saying he would 
 give a certain sum to be rid of the action.'* So, in equity, it 
 has been held that the giving of a small sum in order to ob- 
 tain the release of a right could not be considered as an 
 acknowledgment that a right existed ; it amounts only to 
 this — " I give you so much for not seeking to disturb me."* 
 Perhaps, also, an otter of compromise, the essence of Avhich 
 is that the party making it is willing to submit to a sacrittce. 
 or to make a concession,^ will be rejected, though nothing at 
 the time was expressly said respecting its confidential char- 
 acter, if it clearly api)ear to have been made muler the faith 
 of a pending treaty, into which the party has been led by 
 
 • Davis V. Whitehead, 1 Allen 21 Miss. 443 ; Cory v. Bretton, 4 C. 
 
 (Mass.), 276. & P- 462 ; Johnson v. Sheridan, 2 C. 
 
 ' Cassity v. Robinson, 8 B. Mon. & K. 24 ; Healey v. Thacher, 8 C. 
 
 (Kv.) 279. & P- 3^8 5 Paddock v. Forrester, 3 
 
 ^ Tei-ry v. Taylor. 33 Mo. 323 ; Scott, 724. 
 
 Perkins v. Concord R. R. Co., 44 N. * B. N. P. 236, b. 
 
 H. 223 ; State v. Button, 11 Wis. ' Underwood v. Courtown, 2 Sch. 
 
 373; Rideant v. N«nvton, 17 N. H. ^i L'-f. 67, 68. 
 
 71 ; Willi.Mins v. Thoi-p, 8 Cow. (N. ' Thomson v. Austen, 2 D. & Ry. 
 
 Y.) 201. But see Grubbs v. Nye, 361.
 
 SEC. 177.] ADMISSIONS. 577 
 
 the confidence of an arrangement being effected,^ although, 
 in this case, if the admission is merely of a collateral or in- 
 different fact, such as the handwriting of a party, which is 
 capable of easy proof by other means, and is not connected 
 with the substantial merits of the cause, it will be received ;^ 
 but evidence of the admission of any independent fact is re- 
 ceivable, although made during a treaty of compromise.^ 
 
 In England it is held that, in the absence of any express 
 or strongly implied restriction as to confidence, an oficr of 
 compromise is admissible as some evidence of liabiUty,'* and 
 although the offer of a less sum than the amount demanded 
 will not, in general, support a count on an account stated, 
 inasmuch as it may be a mere ofler to purchase peace f nor, 
 perhaps, will an offer by the drawer of a bill, who is threat- 
 ened with legal proceedings upon it, to give another bill by 
 way of settlement, obviate the necessity of proving at the 
 trial that he has received due notice of dishonor f yet there 
 are occasions, as where drawer of a bill, whose signature is 
 in issue, has proposed a settlement, when the tact of an offer 
 having been made may be entitled to considerable weight.' In 
 one case,^ where the defendant was sued for keeping mischievous 
 dogs, which had killed three of the plaintift''s cattle, and it 
 appeared that on being told of the injury done by them he 
 had offered to settle for it, the court held that although this 
 was a fact which in strictness should have been submitted 
 to the jury as evidence of the scienter, it was entitled to little, 
 if any, weight, " as it might have been made from motives 
 of charity without any admission of liability at all." They 
 therefore refused a new trial, although the question, whether 
 the otfer of compromise was not an admission of the defend- 
 
 ^ Waldridge v. Kennison, 1 Esp. Watts i\ Lawson, id. 447, n.; Nich- 
 
 144. Olson V. Smith, 3 Stark. 129. 
 
 ' Id. ^ Way man v. Billiard, 7 Bing. 
 
 ' Mount V. Bogert, Anthon (N. 101. 
 
 Y.), 190 ; Murray v. Coster, 4 Cow. ° Cuming v. French, 2 Camp. 106, 
 
 63.0 ; Fuller v. Hampton, 5 (N. Y.) note. 
 
 Conn. 416, 426 ; Sanborn v. Neilson, ' Harding v. Jones, Tyr. & Gr. 
 
 4 N. H. 501 ; Delogny v. Rentoul, 1 135. 
 
 Martin (La.), 175. * Thomas v. Morgan, 2 C, M. & 
 
 * Wallace v. Small, M. & M. 464 ; R. 496. 
 
 37
 
 578 EVIDENCE. [CIIAP. XV. 
 
 ;ml'.> liability had not in point of fact been left to the jury, 
 the attention of the jndgi' not having been drawn to thiit 
 partieiihir point. Admissions made before an arbitrator are 
 receivable in a subsequent trial of the eanse, the reference 
 having proved inefteetual.^ 
 
 In a Maine ease," where a town had voted u[)on two 
 separate occasions to pay a person who made a claim against 
 it lor a personal injury received from an insufficient road, 
 which sum was not accepted, it was held that these votes 
 wire not receivable as an admission of its liability by the 
 town, being mere offers of compromise. But in a Massa- 
 chusetts case.^* where the selectmen of a town, in the course 
 of a conversation had with a person claiming damages for 
 an injury occasioned by a defect in a highway, with a view 
 to a compromise, olfered to pay for his loss of time and 
 actual expenses, and asked him what they would amount 
 to, it was held that his statements in reply, of the amount 
 of those items, if not made as offers upon which he loas will- 
 ing to HPiih. were admissible in evidence against him. 
 
 In Mississippi it is held that offers of compromise relating 
 to notes mav be <riven in evidence as an admission of the 
 execution of the notes.'' 
 
 Sec. 178. How Admissions should be Weighed. 
 
 An important element in determining the force to be given 
 to admissions is the circumstances under ivhich they loere 
 made. It they were made under constraint or illegal duress, 
 they are not admissible f and the same is also true if they 
 were made by a person under a misapprehension of his legal 
 
 ' Gi-egory v. Howar<l, 3 Esp. 113 ; claimed and received fi-oin the un- 
 
 Slack V. Buchannun. Peake, 5. derwriters his share of the insurance 
 
 "^ Rawell V. Montville, 4 Me. 270. on the basis of an adjustment of 
 
 ' Hai-rington v. Lincoln, 4 Gray general average, which included the 
 
 (Ma.ss.), 563. advances made by the plaintiff, was 
 
 * Gruhbs v. Nye, 21 Miss. 443. held to amount to an admission of 
 
 See also Lobach v. Hotchkiss, 17 the defendant's liability for such 
 
 Abb. (N. Y.) Pr. 88, where, in an advances. 
 
 action against a ship-ovnier to re- * Stockfeth v. De Tastet, 4 Camp, 
 
 cover the amount of advances made 11 ; Robson v. Alexander, 1 M. & P. 
 
 to compromise a demand for salv- 448. 
 age, evidence that the defendant
 
 SEC. 178.] ADMISSIONS. 579 
 
 rights/ especially where such misapprehension was induced by 
 the other party. But admissions made under legal constraint 
 are competent evidence in some cases, as, affidavits sworn to 
 in a former suit,^ and this is the rule, although the fiicts sworn 
 to were irrelevant,^ or although the party was not bound to 
 disclose them,^ and although he had no opportunity of fully 
 explaining what he meant.^ In the case last cited, in an action 
 for taking the plaintifi's ship, the testimony of the defendant, 
 given as a witness in an action between other parties, in which 
 he admitted the taking of the ship, was allowed to be proved 
 against him ; although it appeared that, in giving his evidence, 
 when he was proceeding to state his reasons for taking the 
 ship, the judge stopped him by saying that it was unneces- 
 sary for him to vindicate his conduct. The maimer in which 
 the evidence w^as obtained was matter of observation to the 
 jury ; but as what was said bore directly on the issue, it could 
 not l)e excluded as evidence of the fact. So, where a defend- 
 ant had been examined before commissioners of bankrupts, 
 although the whole of what he said had not been taken down, 
 yet the portion that was reduced to writing having been read 
 over to him, and he having signed it, it was held to be re- 
 ceivable against him, as a statement of facts, the truth of 
 which he had admitted.^ It seems that an admission obtained 
 under a compulsory examination will not be evidence of an 
 account stated ; but this probably rests on the ground that it 
 is made to a third party, while, to support an account stated, 
 the admission must be made either to the person to whom 
 the money is owing, or to some one sent by himJ 
 
 There is no difiercncc, so far as the admissibility of this 
 kind of evidence is concerned, between direct admissions, 
 and those which are incidental, or made in some other con- 
 nection, or involved in the admission of some other fact. 
 Thus, in an action by the assignees of a bankrupt against an 
 auctioneer to recover the proceeds of a sale of the bankrupt's 
 
 * Moore v. Hitchcock, 4 Wend. * Smith v. Bendall, 1 Camp. 30. 
 
 (N. Y.) 292. " Callet v. Keith, 4 Esp. 212. 
 
 ' Ashmore v. Hardy, 7 C. & P. ® Milward v. Forbes, 4 Esp. 171. 
 
 501. •' Tucker v. Barrow, 3 C. & P. 90. 
 
 ' Stockfeth V. De Tastet, ante.
 
 580 EVIDENCE. [chap. XV. 
 
 goods, the dcfoudant's advertisement of the .sale, in which he 
 described the goods :is " the property of D., a l)ankrupt," 
 was held to be a conclusive admission that D. was a bank- 
 rupt, and that the defendant was actmg under his assignees.^ 
 So where a party, with a view to suing out a conmiission of 
 ]Kinkru[)tcv auaiiist a trader, made an athtlavit that the trader 
 owed liim a ceilain specitic sum, and was become bankrupt, 
 it was held that he could not afterwards dis[)nte the bank- 
 rui)tcy when he was himself sued in trover by the assignees 
 of the l)ankrn[)t, api)ointed under a second commission, for 
 the price of flour which he had clandestinely received from 
 the trader, and applied to the discharge of his own debt.* 
 
 Sec. 179. Admissions implied from Conduct. 
 
 The conduct of a party may be such of itself, unaccom- 
 panied l)yany words or declaration, as to amount to an ad- 
 mission of certain facts. So admissions may be impliedfrom 
 assumed character; for. whenever the existence of any 
 domestic, social, or ofhcial relation is in issue, any recognition 
 of that relation, whether by word or deed, h prima facie evi- 
 dence, against the person making such recognition, that the 
 relation exists.^ This general rule, although most frequently 
 applied against a person who has recognized the character or 
 office of another, also embraces, in its principle, any repre- 
 sentations or language in regard to himself. Thus, where a 
 person has assumed to act in an official character^ this is an 
 admission of his appointment or title to the office, so far as to 
 render him liable, even criminally, for misconduct or neglect 
 ill such office* 
 
 The same rule prevails where a person has recognized the 
 official character of another, by dealing with him in such 
 
 ' Maltby v. Christie, 1 Esp. 342 ; R. v. Gardner, 2 Camp. 513 ; R. v. 
 
 Rankin v. Horner, 16 East, 193 ; Kerne, 7 How. St. Tr. 714 ; R. v. 
 
 Taylor on Ev. 533. Brommick, id. 722 ; R. v. Atkins, 
 
 ' Ledbetter 7\ Salt, 4 Bing-. 623 ; id. 738 ; R. v. Borrett, 6 C. & P. 
 
 Harrnar v. Davis, 7 Taunt. 577. 124 ; Cross v. Kaye, 6 T. R. 663 ; 
 
 ' Dickinson v. Coward, 1 B. & A. Ti-owbi-idge v. Baker, 1 Cow. (N. 
 
 677, 679 ; Inglis u Spence, 1 C. M. Y.) 251; Lister v. Priestly, 
 
 & R. 436. Wightw. 67. 
 
 * Bevan v. Williams, 3 T. R. 635 a;
 
 SEC. 179.] ADMISSIONS. 581 
 
 character or otncrvvise ; at least such conduct \^ prima fade 
 evidence of his title against the party thus recognizing it.' 
 Thus, were a person had received credit from the renter of 
 turnpike tolls, and had afterwards accounted with him in 
 that character, and made him a partial payment, he was not 
 permitted to question the legality of his ap[)ointment ; and 
 where a farmer-general of post-horse duties brought an action 
 for certain statute penalties against a person who let out 
 horses for hire, proof of his appointment was waived, the 
 defendant having previously accounted with him as farmer- 
 general.^ So, the clerk of the trustees of a turnpike road 
 w\as not allowed to show that a person who had acted as 
 one of the trustees, and had ])een treated as such by himself, 
 while clerk, was not duly qualified ;^ and in an action by the 
 assignees of a Ijankrupt against a debtor, who has made them 
 a partial payment,^ or has acknowledged their title in letters 
 to the solicitor of the commission,^ the plaintiffs need not 
 prove their title as assignees, though notice to dispute has 
 been given. So, where an attorney brought an action against 
 a defendant for defamation, in charging him with swindling, 
 and threatening to have him struck otf the rolls, this threat 
 was held to impart an admission that the plaintiff was an at- 
 torney f and in a similar action brought by a physician, 
 where the plaintiff was spoken of as "Doctor L.," and the 
 defendant, who was an apothecaiy, had made up medicines 
 prescribed by him, the court was equally divided upon the 
 question, whether the defendant's words and conduct 
 amounted to an acknowledgment of the plaintiff's character. 
 In actions of this kind, however, if the words complained of 
 charge a tvant of qualification and not mere misconduct, the 
 plaintiff must prove that he possesses the character which has 
 been inq)ugned, for the slander in such case does not admit 
 it,'' This rule, or rather exception to the rule, is well illus- 
 
 * Peacock v. Harris, 10 East, 104. ^ Inglis v. Sj^ence, 1 C. M. & R. 
 "" Radford v. M'Intosh, 3 T. R. 432 ; Crofton v. Poole, 1 B. & Ad. 
 
 632. 56S. 
 
 ' Prichard v. Walker, 3 C. & P. « Berryman v. Wise, 4 T. R. 366. 
 
 212. ' Smith v. Taylor, 1 Scott, 196 ; 
 
 * Dickinson v. Coward, 1 B. & A. Collins v. Carnegie, 1 A.d. & El. 703. 
 677.
 
 582 EVIDENCE. [chap. XV. 
 
 tnitcd ])y :in Engli^ih case' In that case, an action was 
 l»r()U<'-lit for work and labor as a surgeon ; and the defense 
 was that the phiintilf was a i)hysician, and therefore incapable 
 of niaintainin<T^ an action for fees. It was shown that he had 
 written prescriptions and signed himself M. D., upon which 
 Lord Ellenbouough was on the point of nonsuiting him, 
 savin;:: that •' if a person passes himself off as a physician, he 
 nnist take the character cum onere. It a[)pearing, however, 
 that the defendant had paid money into court, his Lordship 
 thought that this act removed the ol)jection, being tanta- 
 mount to an admission of the plaintifl''s right to sue as a 
 surgeon. Admissions implied from the conduct of a party 
 are governed l)y the same principles. Thus, the supi)ression 
 of documents is an admission that their contents were deemed 
 unfavorable to the party suppressing them.^ The entry of 
 a charge to a particular person in an account book, or the 
 makiuf'- out of a bill in his name, is an admission that the 
 iroods were furnished on his credit.^ The omission of a claim 
 1)V an insolvent in a schedule of the debts due to him, given 
 in on oatli, is an admission that it is not due ; though 
 whether it amounts to a conclusive admission may be a (]ues- 
 tionofsome doubt.'' Payment of money is an admission 
 that the person to whom it was paid is the proper pei'son to 
 receive it, Init not against the receiver that the payer was 
 the person who was bound to pay it ; for the party receiving 
 payment of a Just demand may well assume without inquiry 
 that the person tendering the money was the person legally 
 bound to pay it.*^ Relief given at various times to a pauper 
 while residing in another parish is cogent, though not con- 
 
 ■ Lipscomtje v. Holmes, 2 Camp. * In NicholLs v. Downes, 1 M. & 
 
 441 ; R. V. Barnes, 1 Stark. 243 ; R. 13, Lord Tknterden held it to 
 
 Cummin v. Smith, 2 S. & R. (Perm.) be conclusive, apparently question- 
 
 440 ; DivoU v. Leadbetter, 4 Pick, ing Hart v. Newman, 3 Camp. 13, 
 
 (Mass.) 220. where Lord ELLBNBOROCfiii treated 
 
 " James V. Bion, and Owen v. it as entitled to little weight. See 
 
 Flack, 2 S. & S. 600,607; Bell v. Tilghmani). Fisher, 9 Watts (Pcnn.), 
 
 Frankis, 4 M. &G. 446; Curlewis 441. 
 
 V. Coi-field, 1 Q. B. 814. ' James v. Bion, 2 S. & S. 606 ; 
 
 ' Storr V. Scott, 6 C. & P. 241 ; Chapman v. Beard, 3 Anstr. 942. 
 Thompson v. Davenport, 9 B. & C. 78.
 
 SEC. 179.] ADMISSIONS. 583 
 
 elusive, evideiiee that he is settled in the relieving parish ;^ 
 and even a single instance of such relief having been given 
 will warrant a similar conclusion.^ Of course the effect of 
 such evidence will be much stronger if the examination 
 states a distinct head of settlement in the relieving parish, 
 though the technical proof may fail to establish it satisfacto- 
 rily.^ On the other hand, the relief of a pauper, while re- 
 siding in the relieving parish, is no evidence whatever of a 
 settlement, however frequently it may have been bestowed ;* 
 but this rule rests, not so much on the absence of any pre- 
 sumption deducible from the conduct of the relieving parish, 
 as on the impolicy of permitting such evidence to have 
 any weight ; for if parish officers, by giving relief to a pau- 
 per, were to make evidence against themselves as to his set- 
 tlement in their parish, they would perform their duty to 
 casual poor with great reluctance.^ A distinct promise by 
 the drawer to pay, or indeed any acknowledgment by him 
 of liability upon, a dishonored bill, will raise an inference 
 that he has received due notice of dishonor, and, in the case 
 of a foreign bill, that it has been duly protested f and a jury 
 will be justified in coming to the same conclusion on less 
 positive evidence ; as, for instance, if the drawer, in disclaim- 
 ing liability, when threatened with an action, did not rest his 
 defense on the want of notice, but on some different ground.''' 
 The maxim, express um facU cessare taciturn, will here raise 
 a presumption which a defendant may find it difficult to re- 
 but. Suing^ or distraining^ for rent, accruing due after a 
 forfeiture of which the lessor has notice, as also the mere ac- 
 
 ^ R. V. Barnsley, 1 M. & Sel. 377 ; ' R. v. Chatham, 8 East, 501 ; R. 
 
 R. V, Wakefield, 5 East, 335 ; R. v. v. Coleorton, 1 B. & Ad. 27. 
 
 Stanley, 15 East, 350 ; R. v. East, * Hicks v. Duke of Beaufort, 4 
 
 Winch., 12 A. & E. 697 ; R. v. Yar- Bing. N. C. 229, 232 ; Campbell v. 
 
 well, 9 B. & C. 894 ; R. v. Carnar- Webster, 2 C. B. 258 ; Patterson v. 
 
 vonshire Js., 2 Q. B. 325. Becher, 6 B. Moore, 319 ; Brownell 
 
 * R. V. Edwinstowe, 8 B. & C. 671. v. Bonney, 1 Q. B. 39. See Bell v. 
 ^ R. V. Bedingham, 1 Sess. Cas. Frankis, 4 M. & G. 446. 
 
 114. ' Wilkins v. Jadis, 1 M. & Rob. 
 
 * R. V. Chatham, 8 East, 498 ; R. 41 ; Curlewis v. Corfield, 1 Q. B. 814. 
 V. Trowbridge, 7 B. & C. 252 ; R. v. ' Roe v. Minshall, cited B. N. P. 
 Coleorton, 1 B. & Ad. 25. 96 c. 
 
 » Doe V. Peck, 1 B. & Ad. 428.
 
 5,S4 EVIDENCE. [chap. XV. 
 
 ccptance of such rent, ainounts lo tin acknowledgment of the 
 tenancy on the part of the lessor, and is eonse(iucntly a 
 Avaiver of the forfeiture •/ although the l)rcach is a continuing 
 one, as tlio using of rooms in a i)rohibitcd manner, or the 
 omittino^ to keep premises insured, the acceptance of rent 
 after such breach does not amount to a waiver of the forfeit- 
 ure incurred by subsequent user or omission.^ 
 
 Sec. 180. Admissions from Acquiescence. 
 
 Admissions may be im[)lied from the acquiescence of the 
 \vA\i\. But acquiescence, to have the effect of an admission, 
 must exhibit some act of the mind, and amount to voluntary 
 demeanor or conduct of the party? And Avhethcr it is acqui- 
 escence in the conduct or in the language of others, it must 
 plainly appear that such conduct was fully hioivn, or such 
 hniguarjc fully understood, by the party, before any inference 
 can be drawn from his passivencss or silence. So the cir- 
 cumstances must have been such as not only afforded him an 
 opportunity to act or to speak, but such also as %voidd j^roperly 
 and naturally call for some action or reply from men similarly 
 situated.* Thus, where a landlord quietly suffers a tenant to 
 expend money in making alterations and im[)rovements on 
 the premises, it is evidence of his consent to the alterations ;^ 
 but merely lying by and passively witnessing a breach of 
 covenant for several years is not such an acquiescence as 
 amounts to a waiver of the forfeiture.^ If a tenant jmson- 
 aUy receives notice to quit at a particular day, without ob- 
 jection, it is generally an admission that his tenancy expires 
 
 ' Doe V. Davids. 2 Cowp. 804 ; * ]3iainaiHl v. Buck, 25 Vt. .'iTS ; 
 
 Roe V. Harrison, 2 T. R. 430 ; Doe Hersey v. Burton, 23 Vt. C85 ; Law- 
 
 V. Allen, 3 Taunt. 78 ; Doe v. Rees, son v. State, 20 Ala. 65 ; Wilkins v. 
 
 4 Bing. N. C. 384. Stidger, 22 Cal. 231 ; Ralfe v. Ralfe, 
 
 " Doe V. Woodbridge, 9 B. & C. 10 Ga. 143 ; Melen v. Andrews, M. 
 
 376 ; Doe v. Peck, 1 B. & Ad. 428 ; & M. 336 ; Boyd v. Bolton, 8 Ir. Eq. 
 
 Hyde v. Watts, 12 M. & W. 254 ; 113. 
 
 Doe V. Gla.hvin, 6 Q. B. 963. * Doe v. Allen, 3 Taunt. 78, 80 ; 
 
 » Allen V. McKeen, 1 Sum. (U.S.) Doe v. Pye, 1 Esp. 366 ; Neale v. 
 
 314 ; People v. McCrea, 32 Cal. 98 ; Parkin. 1 Esp. 229 ; Stanley V. 
 
 Black V. Hicks, 27 Ga. 522 ; Corser White, 14 East, 332. 
 
 V. Paul, 41 N. H. 24 ; Hagenbaugh • Doe v. Allen, 3 Taunt. 78. 
 t). Crabtree, 33 lU. 225.
 
 SEC. 180.] ADMISSIONS. 585 
 
 on that day ;^ liut if he cannot read, or even did not read the 
 notice in the presence of the person serving it upon him, it 
 will be treated as a, notice not personally served,^ and will go 
 for nothing.^ It has been held that a trader, being inquired 
 for and hearing himself denied, may thereby commit an act 
 of bankruptcy ;* and generally, where one knowingly avails 
 himself of another's acts done for his benefit, the jury will be 
 justified in considering such conduct as an admission of his 
 obligation to pay a reasonalilc compensation.^ 
 
 Raising an objection to one item of an account, no remark 
 being made as to the rest, is evidence of an account stated as 
 to those items, to which no objection has been made f and, 
 among merchants, an account rendered will be regarded as 
 allowed, if it is not objected to within a reasonable time,'^ or 
 at least if it is kept for any length of time without making 
 an objection.^ With respect to ordinary accounts, however, 
 a distinction has been made between such as are sent by i:>ost^ 
 and those delivered by hand ; and it has been held that the 
 former, though kept by the party to whom they were sent with- 
 out observation, arc not admissible against him, as evidence that 
 he had acquiesced in their contents.^ In the case last cited, 
 Bush, C. J., said that what a party saijs upon an account 
 furnished to him, or upon a statement made in his presence, 
 may be given in evidence against him along with the account 
 
 ^ Doe V. Biggs, 2 Taunt. 109 ; " Chisman v. Count, 2 M. & G. 
 
 Thomas v. Thomas, 2 Camp. 647 ; 307. 
 
 Doe V. Forster, 13 East, 405 ; Oak- '' Sherman v. Sherman, 2 Vern. 
 
 apple V. Copous, 4 T. R. 361 ; Doe 276. 
 
 v. Wombwell, 2 Camp. 559. * Freehmd v. Heron, 7 Cranch 
 
 "" Doe iJ Calvert, 2 Camp. 388. (U. S.), 147, 151 ; Murray i^ Tolanil, 
 
 ' Thomas v. Thomas, 2 Camp. 3 Johns. Cas. (N. Y.) 575 ; Coe r. 
 
 649 ; Doe tJ. Forster, 13 East, 405. Hutton, 1 S. & R. (Penn.) 398 ; 
 
 * Key V. Shaw. 8 Bing. 320. M'Bride v. Watts, 1 M'Cord (S. C.) 
 
 ^ Morris ■«. Burdett, 1 Camp. 218, 384 ; Coi-ps v. Robinson, 2 Wash. 
 
 where a candidate, not bound by (U. S.) C. C. 388 ; Willis ■??. Jernegan, 
 
 statute to pay for the hustings 2 Atk. 252, per Lord Hardwicke ; 
 
 erected for an election, had made Tickel v. Short, 2 Ves. Sen. 239, per 
 
 use of them; Abbot v Hermon, 7 '^^-^ where the account had been 
 
 Me. 118, where a school-house was kept without objection for two years. 
 
 used by the school disti-ict ; Hayden » Price v. Ramsay, 2 Jebb & S. 
 
 «. Madison, 7 id. 76. 338.
 
 58G EVIDENCE. [chap. XV. 
 
 or statement, bccauso what is llius on^Med is tlic act or 
 dcclanitioii of the party to he alltrtcd by it, and the acconnt 
 or the statement is by relerenee made a .part ot" sneh act or 
 deehiration ; but the naked I'aet tliat an acconnt remains in 
 tlie i)ossessiou of a parly to whom it Wiissent, cannot amonnt 
 to an aetpiiesceiae in its (.■oiitents. The admission of such 
 evidence woiilil conntcnance the notion tliat a man might, 
 l)y fiunishiiiir an account claiming a bahmce against his 
 creditor, establish an aecpiittance for himself. 
 
 The same di.sfinclion has been recognized in England ])c- 
 tween letters and verbal statements. "What is said to a man 
 betbre his face," said Lord Tentekden,^ " he is in some 
 degree called on to contradict, if he docs not accpiiesee in it ; 
 ])ntthe not answering a letter is quite dillerent, and it is too 
 mnch to say that a man, by omitting to answer a letter at 
 all events, admits the truth of the statements that letter con- 
 tains." LoKD DeNiMAN, in a later case, declared that "it 
 was a great deal too broad a proposition to say that every 
 paper which a man might hold, purporting to charge him 
 with a debt or liability, was evidence against him if he 
 produced it." ^ 
 
 Letters, however, or other papers found in a i)arty's pos- 
 session, will occasionally in a civil suit be evidence against 
 him, as raising an inference that he knows their contents and 
 has acted upon them ;^ and in criminal prosecutions, especially 
 those for conspiracy and treason, letters and papers so found 
 are frequently received, though their Aveight, as evidence 
 against the prisoner, will in great measure depend on the 
 fact, whether answers to them can be traced, or whether 
 anything can be shown to have been done upon them.'* So, 
 also, the opportunity of constant access to documents may 
 sometimes, ]>y raising a presumption that their contents arc 
 known, allbrd ground for allecting parties with an implied 
 admission of the truth or correctness of such contents. 
 Thus, the rules of a club, or a record of the proceedings of a 
 society, contained in a book kept by the proper officer and 
 
 ' Fail-lie v. Denton, 3 C. & P. 103. " R. v. Itorne Tooke, 25 How. St. 
 " Doe V. Frankip, 11 A. & E. 7115. Tr. 120, 121 ; R. v. Watson, 2 Stark. 
 ' Hewitt V. Piggott, 5 C. & P. 75. 140.
 
 SEC. 180.J ADMISSIONS. 587 
 
 accessible to the members;^ charges against a clulj, entered 
 by the servants of the house in a book kept for that purpose 
 open in the club-room,^ and the like, are admissil)le 
 against the members ; their knowledge of the contents of the 
 books and their acquiescence therein being presumable under 
 the circnmstances. 
 
 As to admissions inferred from acquiescence in the verbal 
 statements of otJters^ the maxim, qui tacet, consenlire videtWy 
 is to be applied with careful discrimination. "Nothing," 
 said Duncan, J., "can be more dangerous than this kind of 
 evidence. It should always be received with caution, and 
 never ought to be received at all, unless the evidence is of 
 direct declarations of that kind, which naturally calls for 
 contradiction ; some assertion made to the party with respect 
 to his right, whicii l)y his silence he acquiesces in."^ A dis- 
 tinction is made hettceen declarations made by a partj interested^ 
 and those made hij a stranger ; and while what one party de- 
 clares to the other without contradiction is admissible, what is 
 said to a [)arty by a third person may not be so. It may be 
 impertinent, and best rebuked by silence.* And the same is 
 true as to statements made by strangers in the [)resence of a 
 party, and they will not be admissible against him if they 
 are not directly addressed to him ; because, in such case, he 
 cannot generally be called upon to interfere. Therefore, 
 where, in a real action, upon a view of the premises by a 
 jury, one of the chain-bearers was the owner of a neighbor- 
 ing lot, respecting the bounds of which the litigating 
 parties had much altercation, their declarations in his presence 
 were held inadmissible against him, in a subsecpient action 
 respecting his own lot.^ To affect a person with the state- 
 ments of others, on the ground of his implied admission of 
 their truth by silent acquiescence, it is not enough that they 
 were made in his presence, or even to himself, by parties in- 
 terested, hut they must also have been made on an occasion 
 
 ' Rag-gett V. Musgi-ave, 2 C. & P. ^ Moore v. Smith, 14 S. & R. 
 556 ; Alderson v. Clay, 1 Stark. 405. (Penn ) 393. 
 
 "* Wiltzie V. Adamson, 1 Ph. Ev. * Child v. Grace, 2 C. & P. 193. 
 357. " Moore v. Smith, 14 S. & R. 
 
 (Penn.) 388.
 
 r)>^H EVIDENCE. [cilAl'. XV. 
 
 7v/fe?i a rcplt/ fvc/m him might he properly expected} Tliere- 
 t'oie depositions taken in the presence of ;i purty during a 
 judieial investigation, obsei rations made by a magistrate to 
 the parties before him, and confessions of an accomplice 
 criminating his c()-[>risonei before tlie justices, will not in any 
 subse(juent trial, whether civil or criminal, be evidence 
 against the party who heard them, in silence; because in 
 judicial inquiries a regularity of proceeding is adopted, which 
 prevents a person from intei'fering when and how he pleases, 
 as he naturally would do in a common conversation.^ The 
 same inferences cannot, therefore, be drawn from his silence 
 or his conduct on such occasions, as might reasonably result 
 from similar behavior, were he under no restraint ; and as 
 it is only for the sake of these inferences that the statements 
 of other persons can ever l^e admitted, they are properly re- 
 jected whenever they do not wari-ant the inferences sought 
 to be drawn from them. If, however, the statement of one 
 pei"son calls for a reply from another, it may then be read in 
 connection Avith the reply, and is evidence against the party 
 replying, so fai' as the answer directly or indirectly admits its 
 truth ; and it makes no difl'erence in the ap[)lication of this 
 rule whether the words were spoken by an interested party or 
 a stranger ; whether they were addressed or not to the party 
 replying ; or Avhether they fell from the parties, the wit- 
 nesses or the court, in a judicial proceeding, or were uttered 
 during the course of an ordinary conversation.^ 
 
 But the silence of the party is, at best, worth very little 
 as evidence of acquiescence, even where the declarations are 
 addressed to himself, even at a time when he is at full liberty 
 to reply as he thinks fit; and if he has no means of knowing 
 the truth or falsehood of the statement, the fact that he did 
 not in terras deny it is almost valueless.* In all the.se cases, 
 
 ' Boyd V. Bolton, 8 Ir. Eq. R. 113. Jones v. Morrell, 1 C. & K. 266 ; R. 
 
 ' Melen v. Andrews, M. & M. V. Edmunds, 6 i\ & P. 164 ; Boyd 
 
 336 ; Short v. Story, Roscoe Ev. 38 ; V. Bolton, 8 Ir. Eq. 113. 
 R. V. Appleby, 3 Stark. 33 ; R. v. * State v. Rawls, 2 N. & M'C. (S. 
 
 Turner, 1 Moo. C. C. 347. 348; C.) 301 ; Batturs v. Sellers, 5 H. & 
 
 Child 7). Grace. 2 C. & P. 193. J. (Md.) 117 ; Hayslep v. Gymer, 1 
 
 • Child V. Grace, 2C. & P. 193 ; Ad. & El. 165.
 
 SEC. 181.J ADMISSIONS. 589 
 
 it must always be distinctly remembered that it is not the state- 
 ment made in the party's presence which is evidence against 
 him, but it is his own conduct in consequence of such state- 
 ment which is the sole evidence. A party is always at liberty 
 to show that his admission was founded on a mistake, either 
 of law or fact, unless his opponent has been induced by 
 them to alter his condition.^ 
 
 Sec. 181. Conclusive Admissions. 
 
 Conclusive admissions, or those which the party making 
 them cannot deny, are, first, those which are expressly or 
 tacitly made l)y the pleadings, and secondly, those which 
 have l)een acted upon by others. In reference to admissions 
 by the pleadings it may be said that a party mav, by bring- 
 ing an action on a contract, estop himself from denying its 
 validity and ol)ligation, in a subsequent action founded 
 thereon, against himself^ At all events a party may, by an 
 admission made in one suit, or by omitting to plead, conclu- 
 sively bind himself thereby if a subsequent action is brought 
 against him for the same cause.^ But an admission made in 
 the pleadings in one action is not admissil)le in another, un- 
 less preciseli/ the same matter is being litigated in such other 
 action.^ Thus a libel fi'ed by a party to another suit cannot 
 ordinarily lie given in evidence against him as an adniission ; 
 but if he brought the suit as a trustee, and recovered, the 
 cestuis que trust may put the whole record in evidence to 
 show the recovery and the title on which it rested.^ A bill 
 
 ^ Hearn v. Rogers, 9 B. & C. 577 ; Rensselaer v. Aikin, 22 Wend. (N. 
 
 Newton v. Liddard, 12 Q. B. 927 ; Y.) 549 ; Henderson v. Cargill, 31 
 
 Newton v. Belcher, 1 Q. B. 921. Miss. 367. 
 
 * Fishmongers' Co. v. Robertson, ^ Church v. Shelton, ante. In 
 5 M. & G. 192. Stump v. Henry, 6 Md. 201, at a 
 
 ' Skelton v. Hawling, 1 Wils. 258 ; sheriff's sale of real estate under an 
 
 Dawes v. McMichael, 6 Paige (N. execution upon a judgment against 
 
 Y.) Ch. 139; McGowen v. Young, 2 R., A. B. and C. became purchas- 
 
 Stew. (Ala.) 276. ers. F. bought the shares of B. 
 
 * Cai'ter v. James, 13 M. & W. and C, agreeing with R. to convey 
 137 ; Church v. Sheton, 2 Curt. (U. them to him upon payment of the 
 S.) 271 ; Melvin 1). Whitney, 13 Pick, purchase-money. At a trustee's 
 (Mass.) 184. But see Cooper v. sale, S., by order of the chancellor. 
 Day, 1 Rich. (S. C.) Eq. 25; Van purchased all the right of F. and R.
 
 590 EVIDENCE. [CIIAP. XV. 
 
 ill ocjuity i^ not evidence agiiinst the c()nii)laiii:uit in :i trial at 
 law,' nor is a bill brought by an adniinisitrator adnii.ssi))lc 
 anain.st the estate.^ , So it seems that a bill for an injunction 
 nut tiled as an original, the order upon which has never been 
 complied -with, cannot be considered as a record of court, so 
 as of itself to be evidence in a chancery suit between the 
 same parties.^ And the same rule has been adopted as to a 
 l)ill of discovery which has been withdrawal ])eforc any an- 
 swer to it has been tiled,'* or where the 1)111 and answer are 
 offered together.^ 
 
 It may be said to be the general rule, that, whenever a 
 material averment loell ^pleaded is passed over by the adverse 
 j)ar(ij iviihoul denial, whether by pleading in confession and 
 avoidance, or by traversing some other matter, or by demur- 
 ring in laiv, or by suffering judgment to go by default, it is 
 thereby, for the purpose of pleading, if not for the purpose 
 of trial before the jury, conclusively admitted.'^ But it is only 
 as to material allegations that the rule operates, and there- 
 fore a demurrer admits no more than is well pleaded f and, 
 if a plea denies a particular fact alleged in the declaration, 
 it does not thereby admit all the immaterial statements which 
 the pleader has chosen to introduce as part of the plaintiff's 
 case.*^ Thus, where a declaration in assumpsit, — after stating 
 
 ill said land. R. tiled his bill prior 218. But contra see McLemore v. 
 
 to the trustee's sale, making the Nuckolls, 37 Ala. 662. 
 
 heirs of F. defendants, for the exe- * Crandall v. Gallop, 12 Conn. 365. 
 
 cution of the agreement. An heir ^ Driver v. Fortner, 5 Port, 
 
 of F. filed a cross-bill against R. (Ala.) 9. 
 
 A bill was then filed by the heirs at ' Dean v. Davies, 12 Mo. 112. 
 
 law of A. (making S. defendant), ^ Clark v. Depew, 25 Penn. St. 
 
 who claimed title to an undivided 509. 
 
 third part of said land, and S. in his ® Com. Dig. Pleader, G. 2 ; Ste- 
 
 answer relied upon the title of R. phens on Plead. 248 ; Jones v. Brown, 
 
 and F. It was held that the bill of 1 Bing. N. C. 484 ; De Gaillon v. 
 
 R. against F., since it was sworn to L'Aigle, 1 B. & P. 368; Stephens v. 
 
 by the complainant, anfl since his Pell, 2Dowl. 629 ; Green -y. Hearne, 
 
 answer in the cross-bill admitted its 3 T. R. 301. 
 
 filing, might be used in evidence in ' Van Landau v. Turner, 6 Q. B. 
 
 regard to the title under which he 785. 
 
 held the land. ' Benninn v. Davison, 3 M. & W. 
 
 Rees V. Lawless, 4 Litt. (Ky.) 179; Dunford v. Trattles, 12 M. & 
 
 W. 534.
 
 SEC. 181.] ADMISSIONS. 591 
 
 that the defendants were owners of a vessel, on which the 
 pkxintiff caused to be shipped some potatoes to be carried by 
 them, as owners of the vessel, to Liverpool ; in consideration 
 whereof, and of freight, they promised to carry the potatoes 
 safely as aforesaid, — alleged as a breach, that through their 
 negligence they were damaged, it was held that the plea of 
 non assun^jjserunt did not admit that the defendants were 
 owners, so as to raise the inference that the captain was their 
 agent, the allegation of ownership l)eing regarded as wholl}- 
 immaterial. The declaration would have been equally good 
 had there been no such allegation ^ because the statement 
 that, in consideration of the plaintiff having shipped tlie 
 goods, and of the freight, the defendants promised to carry 
 them safely, when coupled with an allegation that the goods 
 were not safely carried, was sufficient to make a complete 
 case of liability against the defendants.^ 
 
 An admission i?i the record does not have the effect of 
 shifting the burden of proof, but is treated as a mere ivaiver 
 of requiring proof of those parts of the record which are not 
 denied, the party being willing to rest his claim on the other 
 facts in dispute ; but if any inferences are to be drawn by 
 the jury, theg must have the facts from which such inferences 
 are to he drawn proved like any otlier facts? 
 
 But the Court of Queen's Bench has held that an admission 
 in the pleadings, whether expressly or by omitting to traverse 
 an allegation, is an admission for all purposes as to the issues 
 arising from that pleading, whether the facts relate to tlie 
 parties or to third persons, if the allegation so admitted is 
 material.^ 
 
 ^ Bennion v. Davison, 3 M. & W. just as if no admission were made 
 
 179, 182, 183 ; Dunford v. Trattles, on the record ; that is, that an ad- 
 
 12 M. & "W. 532. mission in the record is not to be 
 
 ^ Edmunds i). Groves, 2 M. & W. taken to prove the issue ; " and his 
 
 642, 645 ; Bennion v. Davison, 3 M. Lordship added, " If the rule is not 
 
 & W. 183 ; Edmunds v. Groves, 2 as stated by Alderson, B., this 
 
 M. & W. 643. In Fearn v. Filica, 7 singular state of circumstances 
 
 M. & Gr. 517, Cresswell, J., ob- might arise,— a counsel might ask 
 
 served, with reference to this doc- the jury from the mere state of the 
 
 trine, "I take it that, what my record to infer a fact which was 
 
 brother Alderson meant was, that directly in issue." Id. 518. 
 the fact put in issue was to be proved ' Bingham v. Stanley, 29 B. 121.
 
 592 EVIDENCE. [chap. XV. 
 
 Sec. 182. Effect of pleading General Issue, Etc. 
 
 Tlie goiK'iul issue or other pleu in bar admits the cnuractcr 
 ill which the phiiiitilK sues :' lus. where a person sues as ad- 
 luinistrutor, that he is achninistratoi- ;^ and if he sues as 
 athniuistrator de bonis noii? or cum teatamento annexo* such 
 l)lea admits that the pUiintid' legally possesses that capacity, 
 and the admission is conclusive,'' and the defendant cannot 
 (jnestion the regularity or sufficiency of his a[)p()intment f 
 and the same rule applies in all cases where a person sues in 
 an official capacity, as where he sues as State treasurer.' 
 
 So, where a corporation sues, a plea of the general issue 
 or in har admits the corporate capacity of the plaintiff, and 
 dispenses with proof of the character, organization, etc.,^ and 
 this is the rule even as to foreign corporations.^ So where 
 the plaintiff sues as guardian.'" So it admits the residence 
 of the plaintiff, as if he sets himself up as a foreigner or a 
 citizen of a certain State for the purpose of giving jurisdic- 
 tion to the federal courts." The general issue in a writ of 
 entry admits the defendant's tenancy of the freehold.''^ In 
 dower, denial of the marriage or seizin admits all other 
 material allegations, as a demand of dower, etc., '^ and a denial 
 of marriaire admits the seizin.'^ In a writ of right the raise 
 
 ' Caii^enter v. Whitman, 15 John. 570 ; Society for Propag'ation of the 
 
 (N. Y.) 208; State Treasurer v. Gospel, etc., «. Pawlet, 4 Pet (U.S.) 
 
 Wiggins, 1 McCord (S. C), 468. 480. 
 
 ^ Fraux v. Fraux, 2 N. J. L. 166 ; '" Harper v. Distrchan. 2 Mart. 
 
 Smith V. Ludlow, Anth. (N. Y.) 127. (La ) 389. 
 
 * Floyd V. Breckenridge, 4 Bibl) " De Wolf v. Rabaud, 1 Pet. (U. 
 (Ky.), 14. S. C. C.) 476; and the same rule 
 
 * Champlin v. Tilley, 4 Day prevails where the plaintiff sets 
 (Conn.), 303. himself up as a citizen of the State 
 
 * Henderson v. Clark, 4 Bibb in which he sues for the purpose of 
 (Ky.), 391. obtaining certain advantages which 
 
 • Champlin v. Tilley, ante; Hen- can only be enjoyed by citizens of 
 derson v. Clark, ante. tl^e State. Shivei-s v. Wilson, 5 H. 
 
 ' State Treasuj-er v. Wiggins. 1 & J- (Md) 180. 
 
 McCord (S C), 468. " Kill-ran v. Brown, 4 Ma.ss. 443; 
 
 • Prop, of Kennebec Purchase v. Mills v. Pierce, 2 N. H. 9. 
 
 Call. 1 Mass. 483 ; Conrad v. At- " ^yei' v. Spring, 10 Mass. 80. 
 
 lanticTns. Co.. 1 Pot. (U. S. C. C.) " Fitzgerald V. Garvin, Charlt. 
 
 388. (Ga.) 281. 
 
 • Taylor v. Bank, 7 Mon. (Ky.)
 
 SEC. 182.] ADMISSIONS. 593 
 
 precludes all evidence of iion- tenure/ and in formed on in 
 the descender, non devastavit admits all the material facts in 
 the court except the demise.^ But in replevin non cepit in 
 alio loco does not admit the takinsr.^ 
 
 In assumpsit, by the assignee of an insolvent, the general 
 issue was held not to supersede the necessity of proving that 
 the plaintiff was assignee." And so of an insolvent's trustees.^ 
 And where sealed contracts are made negotiable by statute, 
 non est factum does not admit the assignment.^ 
 
 The plea of non est factum to an action of debt or covenant 
 puts the execution of the deed alone in issue ; and the 
 plaintiff need not prove any averments, except such as relate 
 to the validity of the deed. Under this rule it was held 
 that in covenant to pay on receiving one-third of the i)laintifrs 
 dower, non est factum admitted that the condition was ful- 
 filled, and dispensed with i)roof of this at the trial.'' So of 
 eviction, alleged in covenant for quiet enjoyment,^ so of assets 
 in covenant against an heir, the declaration averring assets,^ 
 so that the bond declared on is not voidable as beinar sfiven 
 contrary to certain legislative provisions, for this must be 
 pleaded specially.^** So in some States, where an equitable 
 defense is admissible, non est factum admits that the bond 
 was obtained without fraud or misrepresentation, and upon 
 full consideration, which has not failed, etc. ; and if the con- 
 trary be intended as a defense, it must be specially pleaded, 
 or notice must be given. ^^ So this plea admits the amount 
 averred to have been awarded, in an action upon an arbitra- 
 tion bond.^^ So non est factum to a constable's surety bond, 
 
 * Bailer v. Peterborough, 3 Rand. " Kane v. Sanger, 14 John. (N. Y.) 
 (Va ) 563. 89. 
 
 " Dudley v. Sumner, 5 Mass. 438. ^ Woodford v. Pendleton, 1 H. & 
 
 ' Williams v. Welch, 5 Wend. M. (Va.) 303. 
 
 (N. Y.) 290. " Commissioners v. Hanion, IN. 
 
 * Best V. Strong, 2 Wend. (N. Y.) & M'C. (S. C.) 554, 555. 
 
 319. » Adams v. Wylie, 1 N. & M'C. 
 
 * Winchester v. Union Bank of (S. C.) 78 ; Bollinger i). Thurston, 2 
 Maryland, 2 G. & J. (Md.) 73. Rep. Const. Ct. (S. C.) 447. 
 
 « McMurtry v. Campbell, 1 ^^ Graham- •«. Allen, 2 N. & M'C. 
 Hamm. (Ohio) 262. (S. C.) 492. 
 
 '' Gardner v. Gardner, 10 John. 
 (N. Y.) 47. 
 
 38
 
 5!»1 EVinENTE. [ciIAr. XV. 
 
 tlioiigh wilh noticr tliat the pLiiiititl' (rdalor) had lu'cu .satis- 
 tied l>y bidding in in'opfity, docs not wai'nmt evidonc-c of 
 det-hirations made liy liini, calculated to lull the con.stublo 
 into security ; the rchitor thus bringing th(! damage upon 
 himself, and jcavini:- the constablo free from l)hinic.^ So in 
 an action by the lessee against his lessor on the covenant of 
 tifle, )io)i csf fartiim admits the want of title ;^ in covenant 
 for mon<>y, alleging non-payment and averring performance of 
 conditions precedent, as the procuring and delivery of patents, 
 etc., it admits the non-i)ayment, and that the conditions 
 were performed,^ in covenant averring notice, it admits the 
 notice;' in debt on a l)ail bond assigned by the sheriff, it 
 admits that it was legally assigned;^ in covenant for non- 
 delivery of slaves on demand, it admits th(! demand -J^ in debt 
 on an ;4)peal bond, it admits all the averments as to matters of 
 record, non-[)aymcnt, etc.,'' and the want of title as well as 
 the eviction, etc., in an action on a covenant of warranty,* 
 but not any fact which is not averred ; as in an action on a 
 replevin bond that tiie writ de rel. hab. was returned unsatis- 
 fied, this not t)eing avei-red.^ 
 
 A plea of justitication in an action of malicious prosecu- 
 tion admits the proceedings set out in the declaration, and 
 throws the onus upon the defendant, even of showing prob- 
 able cause.'" In replevin, a plea of })roperty out of the 
 plaintitf admits the taking,'' and non cejnt admits property in 
 plaintiff.'^ A general i)lea of tender to two counts, one on 
 an account stated, and anothe.1' on a quantum meruit, is con- 
 clusive that a claim for both causes exists, and cannot be 
 
 ' People V. Holmes, .') Wend. (N. ' Leg^ v. Robinson, 7 Wend. (N. 
 
 Y.) 191. Y.) 194 ; Hamilton v. Averill, 11 id. 
 
 » Barney v. Keitti. 6 Wend. (N. 624. 
 Y ) _r,55 " Cooper v. Watson. 10 Wend. 
 
 ' Dale V. Roosevelt. 9 Cow. (N. (N. Y.)202. 
 
 Y.) 307; Courcier v. Graham, 1 " Cowdin v. Stanton, 12 Wend. 
 
 Hamni. (Ohio) 330. (N- V.) 120. 
 
 ♦ Thomaa v. Woods, 4 Cow. (N. '° Morris v. Corson, 7 Cow. (N. 
 Y.)173. Y.)281. 
 
 » Soloman v. Evans, 3 M'Cord " Hume ?^. Gillespie, 3 Mon. (Ky.) 
 
 (S. C). 274. 184. 
 
 • Mitchell V. De GraflFenreid, 1 " Harper v. Baker, 3 Mon. (Ky.) 
 Harp. (S. C.) 450. 421.
 
 SEC. 182.] ADMISSIONS. 595 
 
 aftervviirds limited to an account stated, or to a special 
 agreement for a sum certain.^ A plea of payment to an 
 action of assumpsit admits the cause of action f to an action 
 upon an award, it admits the award ;^ to an action on judg- 
 ment, it admits the judgment.'* Lihermn ienementum con- 
 clusively admits the trespass, and the plaintift''s possession 
 of the close f solvit ad diem admits the execution of the 
 bond,® and on an issue of property or not property, the tak- 
 ing cannot be questioned.^ A plea of performance to an in- 
 junction bond admits the dissolution of the injimction, and 
 all other facts well pleaded ;^ and a plea of set-off admits the 
 plaintiff's demand.^ An averment that a bond is discharged 
 admits that it was executed, ^° and an answer insisting on pay- 
 ment admits the allegation in the petition, of goods sold to 
 the defendant.'' 
 
 But it should be remembered that a plea, though it admits 
 the cause of action, does not admit its amount ; and so of 
 amounts admitted by affirmative pleading in any stage, as 
 by replication, etc., unless. the precise sum be made material 
 by the pleadings. In this respect, the affirmative plea is like 
 a judgment by default or on demurrer, where damages must 
 still be assessed.'^ A good instance is the plea of payment 
 in an action of assumpsit. ^^ 
 
 To the usual plea of an insolvent discharge, the replication 
 denied that the defendant was discharged as he alleged. It 
 was held that it was not necessary to show jurisdiction, as 
 this was admitted by the replication ; and so was the filing 
 of the petition, the same as any other fact not denied.'^ The 
 
 ' Hunting'ton n. American Bank, * Harrison v. Park, 1 J. J. Mar. 
 
 6 Pick. (Mass.) 340. (Ky.) 170, 172. 
 
 " Haley -y. Callar, 1 Ala. 63. * Morg-an v. Boone, 1 J. J. Mar. 
 
 ' Fraux -?). Fraux, 2 N. J. L. 166. (Ky.) 585, 586. 
 
 * Raymond v. Wheeler, 9 Cow. '" Naba v. Carlin, 3 La. 373. 
 (N. Y.) 295. " Akin v. Bedford. 4 La. 615. 
 
 * Singleton v. Millet, 1 N. & M'C. " Waggener v. Bells, 4 Mon. (Ky.) 
 (S. C.) 355 ; Caruth v. Allen, 2 7, 11, 12. 
 
 M'Cord (S. C), 226. " Haley v. Callar, 1 Ala. 63. 
 
 * Sandford v. Hunt, 1 C. & D. " Andrews v. Pledger, 4 C. & P. 
 
 •^^^- 381. 
 
 ' Hume V. Gillespie, 3 Mon. (Ky.)
 
 506 EVIDENCE. [CIIAP. XV. 
 
 replieiition of a new promise to a plea of infancy admits the 
 infanc-y.^ It was held that where the defendant went to 
 trial withont a rejoinder, the facts stated in the replication 
 should be taken as admitted, although the attention of the 
 court and jury was not called to the state of the pleadings ; 
 and there being a verdict for the defendant, a new trial was, 
 for that reason, granted.^ Most courts would probably have 
 amended the issue and retained the verdict. To a plea of 
 set-off. and that the plaintiff got a transfer of the note to 
 avoid the set-off, a replication that the note was the plaintiff's 
 property was held to admit both the set-off' and the IVaudu- 
 lent transfer.^ The plea of non-tenure to an avowry for rent, 
 setthig up a seizin and deducing title, admits the seizin and 
 demise.-' Riens in arreve admits the defendant's title.^ To 
 an a\()wry and cognizance setting forth a lease and rent, by 
 two defendants, averring that B., one of the defendants, 
 distrained as bailiff' of A., the other, the plaintiff pleaded, 
 simply denying that B. was baililf, and held that this ad- 
 mitted the lease and the amount of rent, as set forth.^ Qui 
 non nofiat, fatetur, is the maxim in respect to pleading. All 
 material allegations not denied are admitted. Thus, where 
 in trespass de bonis asporiatis the defendant pleaded that he 
 assisted the sheriff in taking the goods in execution against 
 the plaintiff, and the plaintiff replied a previous ca. sa., an 
 arrest and a voluntary escape, and that the defendant then 
 sued out the execution in question, and the rejc:inder was 
 that this execution was sued out by another, and not the 
 defendant, this was held to admit the escape and other material 
 allegations, except that this execution was sued out l)y the 
 defendant.'' On replication setting forth a code of l)y-laws 
 and alleging a breach, an issue on the breach admits the by- 
 laws.^ In assumpsit, the defendant pleaded a set-off of 
 
 > Goodsell V. Myers, 3 Wend. " B'.oomer v. Juhel, ante. 
 
 (N. y.) 479. ' Solomon v. Harvey, 1 N. & 
 
 » Porter v. Kent, 1 M'Cord (S. M'C. (S. C.) 81. 
 
 C_)^ 205. ' Cheever v. Mirrick, 2 N. H. 
 
 " Savage v. Davis, 7 Wend. (N. 37G. 
 
 Y.)223. * Union Bank of Maryland v. 
 
 * Bloomer v. Juhel, 8 Wend. (N. Ridgley, 1 H. & G. (Md.) 324. 
 Y.) 408.
 
 SEC. 182.] ADMISSIONS. 597 
 
 $2,500 ; replication that the defendant was in debt to the 
 plaintift' $3,000, and paid the plaintiff $2,500 in part thereof; 
 rejoinder, that he had not owed the $3,000 ; the plaintiff has 
 the onus, for he has admitted by the replication the payment 
 of the $2,500.^ If the plaintiff readsa part of the defendant's 
 answer in evidence without objection, the facts stated in the 
 answer and so read may be taken as proved, though the 
 answer being denied in the reply, could not have been read 
 if objected to.^ Under an answer containing a general denial 
 of all the allegations of the complaint, which is for labor 
 and services, evidence of payment or partial payment is in- 
 admissible.^ Where the complaint, on a promissory note, 
 alleges that defendants made the same and have not paid it, 
 the answer alleging payment forms a direct issue ; so held 
 under the code as it stood in 1848.* An award is also new 
 matter which cannot be proved unless it is set up in the 
 answer.^ So is the defense of a tbrmer suit pending.'' 
 Partial defenses may be pleaded.' If the plaintiff reads a 
 part of the defendant's answer in proof of a fact stated in it, 
 then the defendant has a right to uisist that the whole answer 
 be read and taken together." In pleading a bankrupt's dis- 
 charge it is held necessary to show that the court had juris- 
 diction to grant it, by averring the existence of the facts on 
 which jurisdiction depended. But when the discharge is 
 offered in evidence, jurisdiction to grant it should be pre- 
 sumed until the contrary appears.^ When the discharge is 
 given in evidence without having been pleaded, evidence is 
 admissible to impeach it for fraud.^" 
 
 The form of the issue indicates the proof which is admis- 
 sible under the pleadings ; if the complaint alleges that the 
 defendants opened a ditch in the highway, and that plaintiff 
 
 ' Waggener v. The Bells, 4 Mon. « Gardner v. Clarke, 21 N. Y. 
 
 (Ky.) 7, 11. 399. 
 
 "" People V. Norton, 9 N. Y. 176. ' 11 N. Y. 347 ; 16 N. Y. 297. 
 
 ' McKying v. Bull, 16 N. Y. 297. * Gildersleeve v. Mahoney, 5 
 
 * Van Giesen v Van Giesen, 10 Duer (N. Y.), 383. 
 
 N. Y. 316. » Ruckman v. Cowell, 1 N. Y. 
 
 ' Brazill v. Isham,; 12 N. Y. 9, 17. 50.5. 
 
 '» Id. 507.
 
 598 EVIDENCE. [chap. XV. 
 
 without any fault or want of can' on his part fell into it, and 
 the answer denies that the phiintiff without any fault or want 
 of care on his i)art did fall therein, the issue involves the fact 
 of his falling into it, and plaintilf's care or want of care.^ 
 And if the complaint is for work and labor performed, and 
 goods sold and delivered, claiming $197.25, and the answer 
 alleges that the goods were furnished, and the services 
 rendered under an agreement at stipulated prices, amounting 
 to $181.00, but that they were worth no more than $173.00, 
 the defendant may show the work done under a contract, and 
 that there were defects in it.^ 
 
 The tacit admission of a material fact by pleading over 
 and traversins: some other material allegation, will not 
 operate in the cause to the prejudice of the party making it, 
 if he succeeds on the issue raised in his traverse.^ 
 
 Sec. 183. Omitting to traverse. 
 
 The omission to traverse a material allegation so far ad- 
 mits it that the party pleading over caimot disprove it.* 
 But, although a declaration or plea in an action may, in cer- 
 tain cases, be used tis a conclusive admission in another, it 
 can never be used by the opponent as evidence to establish his 
 case on another issue on the same record.^ For instance, if 
 not guilty and a justification is pleaded to a declaration in 
 trespass, the admission of the trespass in the justification will 
 not entitle the plaintiff' to a verdict on the plea of not guilty; 
 because, whatever issues are joined upon any counts or pleas 
 are to l)e tried by the jury distinctly from each othcr.^ So 
 strict is this rule, that a special plea, held bad on demurrer, 
 cannot be read by the plaintiff at the trial of the general 
 issue, as a direct admission by the defendant of the state- 
 
 ' Wall V. Btiffulo Water Works 438. See Hyde v. Watts, 12 M. & 
 
 Co , 18 N. Y. lit). W. 254, as to when the defects in 
 
 ' Maffat V. Sackett, 18 N. Y. 522. one pleading may be cured by ad- 
 
 ^ Robins t). Maidstone, 4 Q. B 811. missions contained in the pleading.s 
 
 * Bonzi V. Stewart, 4 M. & G. 295 ; of the adverse party. 
 
 Carter v. James, 13 M. & W. 145 ; * Gould v. Oliver, 2 M. & G. 234 ; 
 
 Cawlinshaw v. Cheslyn, 1 C. & J. Harington v. Macmorris, 5 Taunt. 
 
 481. 228. 
 
 • Knight V. M'DouaU, 12 A. & E.
 
 SEC. 184.J ADMISSIONS. 599 
 
 nieiits therein contained, though the jury is summoned to 
 assess the damages on the demurrer, as well as to try the 
 cause on the general issue ;^ neither can the defendant, under 
 similar circumstances, advert to the plea, and use the 
 demurrer as an indirect admission ))y the plaintiff of the facts 
 stated in such plea.^ So, where a declaration contained two 
 inconsistent counts, on the second of which the defendant 
 paid money into court, which the plaintiff accepted, it was 
 held that such count, and the proceedings thereon, could not 
 be read to the j my b}'' the defendant as evidence to negative 
 an allegation in the first coimt.^ It was contended, in that 
 case, that taking the money out of court in satisfaction of 
 the matter in the second count was an act of the plaintiff 
 apparent on the record, of which the defendant was entitled 
 to avail himself. But the court held that this part of the 
 pleading was not before the jury.* 
 
 Sec. 184. Neiv Assignment. 
 
 A new assignment does not admit the truth of those mat- 
 ters stated in the plea which it does not pretend to traverse ; 
 for, although a distinction for some purposes may very prop- 
 erly be drawn between collateral and continuous pleading, 
 and it may perhaps be contended with truth that a new as- 
 signment, to a certain extent, falls within the latter class, yet 
 it is obvious that the plaintiff, by adopting this course of 
 pleading, intends to waive all inquiry respecting the facts 
 stated jn the i)lea, as not applying to the true cause of action. 
 The effect, therefore, of a new assignment is not strictly to 
 admit the truth of these facts, but to withdraw them entirely 
 from consideration, as forming any part of the sul)ject-matter 
 of the action, and thus, on the one hand, to prevent the 
 plaintiff from complaining of them, and, on the other, to 
 preclude the defendant from rel3dng on them in the support 
 of the issue raised on the new assignment. They are, in 
 point of fact, to be regarded as if they were struck out of 
 
 ' Firmi v. Crucifix, 5 C. & P. 98 ; ^ Ingram v. Lawson, 2 M. & R. 
 Montgomery _^v. 'Richardson, 5 id. 253. 
 
 247. ' ^ ' Gould V. Oliver, 2 M. & G. 208. 
 
 * Gould V. Oliver, ante.
 
 coo EVIDKNCE. |( IIAI'. XV. 
 
 the record, and the true grounds of complaint are .o he 
 .souglit Ml the exphuuition of tlie dechiration which the new 
 assignment contains.' For some pur[)oses, indeed, the mat- 
 ters stated in tlie plni, and not disputed by the new assign- 
 ment, will he noticed l)y the court ; as, i'or instance, if to an 
 action for assault the defendant justifies, and the plaintiff 
 new assigns another assault on a di He rent* occasion, the latter 
 must either prove both assaults, or at least show that the one 
 of Avhich he comi)hiins in his new assignment is substantially 
 dilferent from that alleged in the plea ; and so, if in an ac- 
 tion of trespass, quare claiisum f regit, a justification is 
 })leaded under a right of wa}', and a trespass extra viam is 
 new assigned, the plaintifl'must prove at the trial that such 
 last-named trespass was in fact committed ; but in both these 
 cases the proof is required, not so much on account of an}-- 
 admission assumed to have been made by the plaintiff, as 
 because it directly establishes the issue which has been raised 
 by the new assignment.'* 
 
 The rule does not apply to cases where, the issue found 
 l)eing innnaterial, the court have to determine whether they 
 will grant a repleader, or w^ill allow the plaintiff' to enter up 
 judgment non obstante veredicto, or the defendant to arrest 
 the judgment.^ Here a distinction prevails between an express 
 admission or a pleading in confession and avoidance on the 
 one hand, and an implied admission from traversing other 
 facts on the other, the latter not being regarded by the court 
 in the light of an admission at all.* Thus it has been held 
 that judgment non obstante veredicto can be awarded only on 
 a pleading by the defendant in confession and avoidance, and 
 not on an im[)li(Ml confession in a rejoinder of that part of a 
 replication which it does not answer f and this seems to lead 
 to the conclusion that judgment for the plaintiff cannot be 
 
 ' Norman xi. Wescombe, 2 M. & See Bolton v. Sherman, 2 M. & "W. 
 
 W. 340, 360, 361 ; Dand v. Kingscote, 399 ; Alston v. Mills, 9 Ad. & El. 248. 
 
 6 M. & W. 197 ; Bi-ancker v. Moly- ^ Gwynne v. Burnell, G Bing. N. 
 
 neux. 1 M. & G. 710 ; Stephens on C. 479. 
 
 PI- 261. « Atkinson v. Davies, 11 M. & W. 
 
 » Darby v. Smith, 2 M. & Rob. 240. 
 
 184 ; Oakley v. Davis, 16 East, 86. * Gwynne v. Burnell, 6 Bing. N. 
 
 C. 453 ; 1 Scott, N. R. 711, S. C.
 
 SEC. 185.] ADMISSIONS. GOl 
 
 arrested on the ground that the traverse of a part of a plea 
 contains an implied confession of the residue. The proper 
 course seems, in both cases, to award a repleader.^ The rule 
 in equity with respect to admissions in pleading is different 
 from that at common law ; a demurrer being regarded by- 
 courts of equity as simply raising the question of law, with- 
 out any admission of the truth of the allegations contained 
 in the bill — so that if the demurrer be overruled, an answer 
 may still be put in ; and a plea being merely a statement of 
 circumstances sufficient to show that, suppo.^ing the facts to 
 l)e true, the defendant is not bound to answer. It follows 
 that, in a future action between the same parties, neither the 
 demurrer nor plea can be received in evidence as amounting 
 to an admission of the facts alle2::ed in the bill.^ 
 
 Sec. 185. Admissions acted upon by others to their Prejudice. 
 
 Where an admission has been acted u])on hy another, the 
 person making it cannot deny it, where such denial would 
 operate prejudicially to the person ivho has acted upon it. 
 
 This rule is illustrated in numerous ways. Thus, if a man 
 co-habits Avith a woman and treats and presents her to the 
 world as his wife, he is estopped from denying that she is 
 his wife as against those who have furnished her with goods 
 upon the faith of the relation f and a woman who has lived 
 with a man under such circumstances is, so far as the rights 
 of third persons are affected thereby, estopped from denying 
 that she is his wife.* But where a woman is really married 
 to a man, and she had obtained credit \\\)0\\ a declaration by 
 her that she is a single woman, it is held that she is not 
 estopped from setting up her marriage in defense.^ 
 
 ^ Atkinson v. Davies, 11 M. & W. Dowl. 755, S. C; Gordon v. Ellis, 2 
 
 236, 242, where the court explains Dowl. & L. 308, 318, 319. 
 
 and adopts the rule of law laid "^ Tompkins?). Ashby. M. & M. 32. 
 
 down in Gwynn v. Bumell. These ^ Munroe v. De Chamaut, 4 Camp. 
 
 cases overrule the dictum of the 215 ; Watson v.Threlkeld, 2 Esp. 637. 
 
 Court of Common Pleas, as reported * Divoll v. Leadbitter, 3 Pick, 
 
 in Rand v. Vaughan, 1 Bing-. N. C. (Mass.) 220 ; Mace v. Cadell, 1 
 
 769 ; 1 Scott, 670, S. C. See, also. Camp. 233 ; Batthews v. GaUndo, 4 
 
 Pitts or "Witts v. Polehampton, 3 Bing. 613. 
 
 Salk. 305 ; 1 Lord Raym 391, S. C; * Glenister v. Thynne, Easter T. 
 
 Plummer v. Lee, 2 M. & W. 495 ; 5 1S47, Cateredgb, J.
 
 602 EVIDENCE. [ciiAr. XV. 
 
 Where n person knowiiij^ly ponnits l»is imiiu' to 1k^ iiijcd 
 ill ji fmn iiiuler .siK'li ciivuinslaiuvs of pul>licity :i.s to wiinuiit 
 a jury in tinding that a creditor knew of it and believed him 
 to he a i):irtner, he is UahU^ to such stranger in all the trans- 
 art ions in which he gave rredit to the lirni upon the faith 
 oi' his iK'ing a partner.' 
 
 Si), if a i>arty has taken advantage of, or voliuUarily acted 
 midcr. tiu> Itanivrnpt or insolvent laws, he shall not he i)er- 
 niittcd. as against parties to the proceedings, to deny their 
 reunkuitv.^ So, if a i)erson having a right to an estate per- 
 mits oi- encourages a [)ureliaser to l)uy it of another, the pur- 
 chaser shall hold it against the person who has the right ;^ 
 and the same doctrine api)lies to personal [)roi)erty.' Tres- 
 p;iss is not maintainable against a sherilf's ofhcer wiio ex- 
 ecutes process against a man hy a wrong name, either hy 
 taking' his person, or seizing his gooils, if before the process 
 be sui'd out, he is asked his name, and gives such wrong 
 one r"* and if a l)arty, who has entered into a l)ond by a 
 wronu" name, issued in that name, he cannot causi' the dechi- 
 ratiou to be amended at the cost of the [)laintiHV' and he is 
 estopped from denying that the name in which he was sued 
 "was his real name. So, although a breach of covenant can 
 in no case be JustiliiMl by a i)arol license \o break it,'^ yet a 
 f«)rfi'iture occasioninl by it may sometimes be waived by the 
 
 ' Dickinson »•. Volpy, 10 B. & C '' As to a ca. sa., see Moryans v. 
 
 122; (luiilon v. Rol)son, 2 Camp. Bridges, 1 B. & A. 650, 051 ; Mag-- 
 
 302. nay v. Fisher, 5 M. & G. 778, 787. 
 
 ' Lilie V. Howe, U Esp. 20 ; Ciaike This last case overrules Coote v. 
 
 V. Clarke, G id. (51 ; Gouldie ?>. Guns- Leighworth, Sir Fra. Moore, 557, 
 
 ton, 4 Camp. 881 ; Watson v. Wace, and a dictum of Lord Hale in Thur- 
 
 5 B. & C. 153, explained in Heane bane, Hardres, 323. As to a Jt. /a., 
 
 V. Roj^ei-s, 9 B. & C. 58(1, 587 ; Mer- see Price v. llarwood, 3 Camp. 108 ; 
 
 cer I'. Wise. 3 Esp. 219 ; llarmar v. Fisher r. Magnay, 5 M. & G. 787 ; 
 
 Davis, 7 Taiuit. 577 ; Flower i\ Reeves v. Slater, 7 B. & C. 480. 
 
 Herbert, 2 Yes. Sr. 320. "^ Hyckman v. Shotbolt, 3 Dyer, 
 
 ' 3 Sugden Yen. iV' Bur. 428 ; 279, h. ; R. i\ Wooldale, Q. B. 566 ; 
 
 Sandys r. Hodgson, 10 Ad. & El. Mayby {'. Shephenl, Cro. Jac. 640 ; 
 
 476. " Williams v. Bryant. 5 M. & W. 447. 
 
 ♦ Pickard v. Sears, 6 Ad. & El. ' Doe v. (xladwin. 6 Q. B. 9.53, 
 
 469 ; Gregg v. Wells. 10 Ad. & El. 962 ; West v. Blakeway, 2 M. & G. 
 
 90 ; Coles v. Bank of England. 10 729. 
 Ad. & El. 437.
 
 SEC. 185.] ADMISSIONS. 603 
 
 conduct of the covenantee. Tims where there is a covenant 
 to insure by the tenant, which is qualified by an option given 
 to the landlord to insure if the tenant makes default, and to 
 add the premiums to his rent, in ejectment for a forfeiture 
 for not insuring, the defendant may defeat the action by 
 proving that the landloi'd represented to him that he had ex- 
 ercised the power, and had himself insured the premises.^ 
 So a t(niant, Avho has paid rent, and acted as such, is not per- 
 mitted to set up a superior title of a third person against his 
 lessor, in bar of an ejectment brought by him ; for he derived 
 the possession from him as his tenant, and will not Ije allowed 
 to repudiate that relation. This doctrine applies to the re- 
 lation of bailoi- and bailee, and principal and agent ; the 
 rule being that bailees or agents cannot dispute the titles of 
 their bailors or principals.^ 
 
 Consequently, if a warehouseman, wharfinger, banker, at- 
 torney, agent, or other depositary of goods or moneys, has 
 once acknowledged the title of a person as his Ijailor or prin- 
 cipal, and has agreed to hold the goods or moneys sul)ject to 
 his order, or to sell the goods and to account for the pro- 
 ceeds, he will be estopped from setting up the title of a third 
 person to the same goods or moneys, oi* from otherwise de- 
 feating the rights of his bailor or i)rincipal, against his own 
 manifest obligations to him.^ But an exception is made 
 where the bailor or principal has ol)tained the goods fraudu- 
 lently or tortiously from the third person,* if the defendant 
 shows that he was unacquainted with the circumstances when 
 
 ' Doe V. Hutton, 9 C. & P. 706 ; = Gosling v. Birnie, 7 Bing. 339 
 
 Doe '0. Gladwin, 6 Q. B. 962, 963 : Stonard v. Dunkin, 2 Camp. 344 
 
 Doe v. Rowe, 2 C. & P. 246. Hai-inan v. Anderson, 2 id. 243 
 
 "^ Dixon V. Hamond, 2 B. & A. Hawes v. Watson, 2 B. & C. 540 
 
 310, 313 ; Story on Agency, § 217 ; Dixon v. Hammond, 2 B. & A. 310 
 
 Phillips v. Hall, 8 Wend. (N. Y.) Ilol)erts v. Ogilvy, 9 Price, 269 
 
 610 ; Drown v. Smith, 3 N. H. 299 ; Farringdon v. Clerk, 3 Doug. 124 
 
 Eastman v. Tuttle, 1 Cow. (N. Y.) Holl v. Griffin, 10 Bing. 246 ; Nick- 
 
 248 ; M'Neil v. Philip, 1 M'Cord (S. olson v. Knowles, .') Mad. 47 ; Evans 
 
 C), 392 ; Chapman v. Searle, 3 v. Nichol, 3 M. & G. 014. 
 
 Pick. (Mass.) 38, 44; Jewett v. * Hardman v. Willcock, 9 Bing. 
 
 Torry, 11 Mass. 219 ; Lyman v. 382, n. 
 Lyman, 11 id. 317 ; Story on Bailm., 
 §102.
 
 (J04 EVIDENCE. [chap. XV. 
 
 he made the admission/ and that such third person has ac- 
 tually made a claim to the goods or moneys in (luestion.^ 
 The bailor's title may he impugned if the circumstances are 
 such as to show that he, in connection with some third per- 
 son, has practiced a fraud on the bailee, by representing 
 o-oods to belong to the bailor, which, in fact, were the prop- 
 erty of such third person, if additional proof is given that 
 the defendant, in consequence of the fraudulent misrepresen- 
 tation, has sustained any real injury.^ On the same prin- 
 ciple, a vendor, who has sold goods to a party as a sole 
 purchaser, and has directed his factors to weigh them over 
 to such party, and to enter them in his name in their books, 
 cannot, after such sale and transfer, dispute his title as sole 
 proprietor, or detain the goods, on the authority of a third 
 person, who claims to be a joint purchaser.* 
 
 This rule also applies to acce[)tors of bills, and in an ac- 
 tion airainst the accepor the defendant cannot ^^how that his 
 sif'naturc has been forged, tf he has accredited the bill, and 
 induced the plaintiff to take it, by mying that the acceptance 
 was his, and that the bill would he duly 2)ciid.^ 
 
 The acceptance of a bill of exchange is also treated as a 
 conclusive admission, as against the acceptor, of the signature 
 of the drawer." and of his capacity to draw :" and if the bill 
 is payable to the order of the drawer, of his capacity to in- 
 dorse ;* and if it is drawn by procuration, of the authority 
 of the agent to draw in the name of the principal f and it is 
 immaterial whether the bill Ls drawn before or after the 
 acceptance."^ There is, however, generally no such admis- 
 
 > Gosling V. Birnie, 7 Bmg. 34G. "< Id, See Haly v. Lane, 2 Atk. 
 
 « Betteley v. Reed, 4 Q. B. 511, 182. 
 
 517, 518. " Taylor v. Croker, 4 Esp. 187 ; 
 
 • Scott V. Cra\\'ford, 4 M. & G. Pitt v. Chappelow. 8 M. & W. 616 ; 
 1031. Drayton v. Dale, 2 B. & C. 293; 
 
 • Kieran v. Sandars, 6 Ad. & El. Sanderson v. Collman, 4 M. & G. 
 515. 218. 
 
 • Leach v. Buchanan, 4 Esp. 226 ; • Robinson v. Yarrow, 7 Taunt. 
 Sanderson V. Colhnan, 4 M. & G. 455 ; Jones v. Tumour, 4 C. & P. 
 222. 204. 
 
 • Sanderson v. Collman. 4 M. & '" Schultz v. Astley, 2 Bing. N. C. 
 G. 209 ; Bass v. Clive, 4 M. & S. 13. 544.
 
 SEC. 185.] ADMISSIONS. 605 
 
 siou Oil the part of the acceptor, of the genuineness of the 
 signature of the payee, although he is the same party as the 
 drawer,^ or of any other inclorser ; and this, although at the 
 time of the acceptance, the indorsements were on the l)ill.* 
 Neither does the acceptance admit that an agent who has drawn 
 a bill by procuration, payable to the order of the principal, 
 has authority to indorse the same.^ So. if on a bill payable 
 to the order of the drawer the name of a real person as 
 drawer and indorser isybr^etZ, it seems that the mere accept- 
 ance of the bill, in ignorance of the forgery, will not preclude 
 the acceptor from denying the genuineness of the indorse- 
 ment, though it be in the same handwriting as the drawing, 
 which he is bound to admit ;* but if the acceptor, with 
 knowledge of the forgery, puts the bill in circulation, he will 
 be estopped from disputing the validity of the indorsement 
 equally with that of the drawing, and the same rule prevails 
 if the bill is drawn in a \y\\o\\Y fictitious name, and the hand- 
 writinof of the indorsement is the same as that of the draw- 
 iiig, and the acceptor wUl be estopped from denying it, be- 
 cause he admits that the bill is drawn by somebody, that is, 
 by the person who indorses in the same handwriting, and 
 the fair construction to be put on his undertaking is, that he 
 will pay to the signature of the same person who signed for 
 the drawer.^ 
 
 The reasons usually assigned for these distinctions are, 
 that as the acceptor is only presumed to be acquainted with 
 the handwriting of the drawer, it is sufficient if he ascertains 
 that his signature is genuine, and that he is not bound to 
 look at the back of the bill at all ; and that if he was, he could 
 not be supposed to know the handwriting of indorsers who 
 •would prol)ably be strangers to him ; and that a ditferent 
 rule would raise nice questions of fact in every case, as to 
 •whether the bill was indorsed before or after acceptance, and 
 
 » Macferson v. Thoytes, Pea. 20 ; * Beeman v. Duck, 11 M. & W. 
 
 Bosanquet v. Anderson, 6 Esp. 44; 251, 2.55. 
 
 Cooper V. Meyer, 10 B. & C. 471. ' Cooper v. Meyer, 10 B. & C. 
 
 = Smith V. Chester, 1 T. R. 654. 468, 471 ; Beeman v. Duck, 11 M. & 
 
 ' Robinson v. Yarrow, 7 Taunt. W. 253-256. 
 455 ; Beeman v. Duck, 11 M.&W. 255.
 
 600 EVIDENCE. [chap. XV. 
 
 would, consequently, embiirniss the circulation of negotiable 
 securities, by rendering the position of acceptors hazardous 
 and undefined.' 
 
 Upon the same principle an indorsement by the payee of a 
 promissory note is a conclusive admission of the handwriting 
 of the maker,* but not of any preceding indorser.^ Although 
 an indorsee who sues an indorser may l)c saved the necessity 
 of proving the prior indorsements, l)y alleging in the decla- 
 ration that the defendant indorsed a bill imrporling to be drawn 
 I)}- the drawer, and indorsed by him to the defendant, yet, if he 
 chooses to aver positively that the bill was drawn by a cer- 
 tain person, it seems that the defendant is still competent in 
 law to deny that fact, though his indorsement is cogent, and 
 almost irresistible, evidence of its truth. ^ In those cases 
 where the admission is conclusive, it may cither be replied 
 by way of estoppel in pais,^ or if the matter of estoppel 
 appears on the pleadings, the party ma}' avail himself of it 
 on demurrer.^ It makes no difference in the operati(m of 
 this rule, Avhether the admission was true oi false, or whether 
 it proceeded from mistake or design ; it l)eing the fact that 
 it has been acted upon which renders it conclusive.' 
 
 But admissions, which have not been acted upon, or by 
 which the situation of the opposite part?/ has not been ^??'e/w- 
 diced or altered, although receivable in evidence against the 
 parties making them, are not conclusive. Thus, if A. con- 
 tracts to sell timber to B., and gives him a delivery order, 
 he may still, on B.'s bankruptcy, meet an action of trover 
 
 ' See Story on Bills of Ex., § 263 ; ' Armani v. Castrique, 13 M. & 
 
 Robinson v. Yarrow, 7 Taunt. 4.58 ; W. 451. 
 
 Smith V. Chester, 1 T. R. 654 ; ' Doe v. Lambly, 2 Esp. 635, 636 ; 
 
 Canal Bk. v. Bk. of Albany, 1 Hill Morgans v. Bridges, 1 B. & A. 650 ; 
 
 (N. Y.), 287. Hall v. White, 3 C. & P. 136; 
 
 "Free ■». Hawkins, Holt, N. P. Stablest. Eley, 1 C. & P. 614 ; How- 
 
 R. 550. ard v. Tucker, 1 B. & Ad. 712 ; 
 
 » Armani v. Castrique, 13 M. & W. Salem v. Williams, 8 Wend. (N. Y.) 
 
 443. But see Critchlow v. Parry, 2 483 ; 9 id. 147 ; Chapman v. Searle, 
 
 Camp. 182. 3 Pick (Mass.) 38, 44 ; Den v. Oliver, 
 
 ♦ Armani v. Castrique, 13 M. & 3 Hawks (N. C), 479 ; Salem Bk. v. 
 
 W. 449, 450. Gloucester Bk., 17 Mass. 1 ; Sim- 
 
 ' Sanderson v. CoUman, 4 M. & mons v. Bradford, 15 Mass. 82 ; 
 
 G. 209. " Eaton v. Ogier, 2 Me. 46.
 
 SEC. 185.] ADMISSIONS. 607 
 
 brought by B.'s assignees, by showing that the delivery order 
 was invalid, and therefore did not amount to a constructive 
 delivery of the goods, provided B. has neither paid for them, 
 nor sold them to a third party, i So, if the question merely 
 relates to the admissil)ility of a witness, whom the defendant 
 has acknowledged to be his wife,^ or partner, such acknowl- 
 edgment will not preclude him from showing that in fact 
 the witness is not incompetent.^ So, in an action for 
 the escape of a prisoner arrested at the suit of the plaintiff, 
 the defendant, by having received the prisoner into custody, 
 is not estopped from disputing the legality of the custody.* 
 Neither will the court treat as conclusive evidence the admis- 
 sion that his trade was a nuisance, by one indicted for setting 
 it up in another place ;^ or the admission by the defendant, 
 in an action for adultery, that the " teterrima causa " was the 
 wife of the plaintiff*^ So, a creditor is not estopped from 
 bringing an action against a sheriff for a false return, by 
 accepting the amount levied on account, and towards the 
 satisfaction, of the debt mentioned in the writ -^"^ and where 
 a person brought an action of trover for a dog. he was held 
 not to be precluded from proving his title to it, though he 
 had previously authorized a third party, against whom the 
 defendant had brought a similar action, to deliver it to the 
 defendant, in the place of paying 50/., which was the alterna- 
 tive directed by the verdict ; the third person having, at the 
 time of delivery, demanded back the dog, on behalf of the 
 plaintiff, as his property. In these, and similar cases, no 
 wrong is done to the other party by receiving any legal 
 evidence to show that the admission was erroneous, and by 
 leaving the whole evidence, including the admission, to be 
 
 ' Lacking-ton v. Atherton, 7 M. & Parsons •??. Crosby, 5Esp. 199 ; Ward 
 
 G. 360. V. Haydon, 2 Esp. 552. 
 
 " Batthews v. Galindo, 3 C. & P. * ContanttJ. Chapman, 2 Q. B. 771. 
 
 238. ■* R. V. Neville, Pea. 91. 
 
 * Brockbank v. Anderson, 7 M. & * Morris v. Miller, 4 Burr. 2057 ; 
 
 G. 295 ; Barker v. Stubbs, 1 M. & Rigg- v. Curgenven, 2 Wils. 399. 
 
 G. 44 ; Russell v. Blake, 2 M. & G. ' Holmes v. Clifton, 10 Ad. & El. 
 
 374 ; Poole v. Palmer, 9 M. & W. 673, overruling Beynon v. Garrat, 1 
 
 71 ; Kell v. Nainby, 10 B. & C. 20 ; C. & P. 154. 
 Glossop V. Colman, 1 Stark. 25 ;
 
 608 EVIDENCE. [chap. XV. 
 
 weighed by the Jiirv.' In some low cases connected with 
 the administration of ])nl)lic jn.>5tice, and of government, the 
 admission is hehl conchisive, on grounds of public pofici/. 
 Tlins, in an action for penalties for election bribery, it was 
 held that a man, who had given money to another for his 
 vote, shoidd not he admitted to say that such other person 
 had no right to vote.* So. where the owners of a stage coach 
 took up more passengers than were allowed by statute, and 
 an injury was laid as having arisen from overloading, their 
 conduct was held to be conclusive evidence that the acci- 
 dent was occasioned l)y the cause assigned.^ So, one who 
 has oflficiously intermeddled with the goods of another re- 
 cently deceased, is in favor of creditors, esto[)ped to deny 
 that he is executor.^ And if an executrix treats the goods 
 of her testator as the property of her husband, she will not 
 be allowed to object to their being taken in execution for her 
 husband's debt.^ 
 
 Sec. 186. Admissions under Oath in Deeds, Etc. 
 
 The mere fact that an admission was made under oath 
 does not of itself render it conclusive against the party, 
 but it adds greatly to the weight of the testimony, throw- 
 ing upon the party making it the burden of showing that it 
 was a case of clear and innocent mistake.'' 
 
 Admissions in deeds, as between the parties and their privies, 
 are generally regarded as estoppels, if properly pleaded ;'^ 
 and when not technically so, they are entitled to great weight, 
 
 • Sandys v. Hodgson, 10 Ad. & Thornes v. White, 1 Tyr. & Gi-. 110 ; 
 El. 472. Doe v. Steel, 3 Camp. 115. Answers 
 
 " Combe v. Pitt, 3 Burr. 1586, in Chancery are always admissible 
 
 1590; 1 Wm. Bl. .524, S. C. ; Riggv. at common law against the party, 
 
 Curgenven, 2 Wils. 395. but do not seem to be held strictly 
 
 ' Israel v. Clark, 4 Esp. 259, per conclusive, merely because they are 
 
 Lord Kbnyon, recognized by Lord sworn to. B. N. P. 236, 237; 
 
 Ellenborougii. Cameron v. Lightfoot, 2 W. Bl. 1190 ; 
 
 • Reade's Case, 5 Co. 33, 34 ; Tol- Grant v. Jackson, Pea. 203 ; Studdy 
 ler's Law of Exi-s., 37^1;! Williams v. Sanders, 2 D. & R. 347; De 
 Ex. & Ad., 192, 193. Whelpdale v. Milburn, 5 Pi-ice, 485. 
 
 ' Quick 71 Staines. 1 B. & P. 293. ' Fishmongers' Co. v. Robertson, 
 See Feinvick v. Laycock, 2 Q. B. 108. 5 M. & G. 193 ; Bowman v. Rostron, 
 
 • R. V. Clarke, 8 T. R. 220 ; 2 Ad. & El. 295, n.
 
 SEC. 187.] ADMISSIONS 609 
 
 from the solemnity of their nature.^ But when offered in 
 evidence by a stranger, the adverse party may repel their 
 effect in the same manner as though they were only parol 
 admissions.^ 
 
 Receipts or other mere acknowledgments, given for goods 
 or money, whether on separate papers,^ or indorsed on deeds,* 
 or on negotiable securities f the adjustment of a loss, on a 
 policy of insurance, made without full knowledge of all the 
 circumstances, or under a mistake of law or fact, or under 
 any other invalidating circumstances f and accounts ren- 
 der-ed, such as an attorney's bill,^ and the like, do not estop 
 the party making them from denying the facts stated therein ; 
 and a bill in Chancery, if admissible at all against the plain- 
 tiff in proof of the admissions it contains, is the feeblest pos- 
 sible evidence, the facts stated therein being frequently little 
 more than the mere suggestions of counsel.^ 
 
 Sec. 187. Admissions by Corporate Officers, Etc. 
 
 The declarations or admissions of individual members of a 
 corporation are not admissible against the corporation, ex- 
 cept as to matters in which they have been authorized to act 
 for it,^ nor are the admissions of" directors or other officers of 
 a corporation, notfovming a part of an official act, admissible 
 to establish an antecedent fact,^** unless some authority be- 
 
 ' Doe V. Stone, 3 C. B. 176. " Graves v. Key, 3 B. & Ad. 313. 
 
 * R. V. Neville, Pea. 91 ; Wood- " Reyner v. Hall, 7 Taunt. 725 ; 
 ward V. Larking, 3 Esp. 286 ; Mayor Shepherd i). Chewter, 1 Camp. 274 ; 
 of Carlisle v. Blamire, 8 East, 487. Adams v. Sanders, M. & M. 373 ; 
 
 ^ Skaife v. Jackson, 3 B. & C. 421 ; Christian v. Coombe, 2 Esp. 489. 
 
 Farrar v. Hutchinson, 9 Ad. & El. ^ Loveridg-e v. Botham, 1 B. & P. 
 
 641 ; Wallace v. Kelsall, 7 M. & W. 49 ; Bacon v. Chesney, 1 Stark. 192, 
 
 273. These cases overrule Alner i>. 193. n. h; Dawson i'. Remnant, 6 Esp. 
 
 George, 1 Camp. 392 ; Harden v. 24 ; Taylor's Ev., 567, 577. 
 
 Gordon, 2 Mason (U. S.), 541, 561 ; « B. N. P. 235 ; 2 Ph. Ev. 28; 
 
 Fuller V. Ci-ittenden, 9 Conn. 401 ; Doe v. Sybourn, 7 T. R. 3. 
 
 Ensign v. Webster, 1 Johns. Cas. ^ Tui-npike Co. v. Thoi-p, 13 Conn. 
 
 (N. Y.) 145 ; Putnam t\ Lewis, 8 173 ; Bank v. Hart, 3 Day (Conn.), 
 
 Johns. (N". Y.) 389; Stackpole v. 401. 
 
 Arnold, 11 Mass. 27; Tucker v. ■" Bank v. Da\aes, 6 W. & S. 
 
 Maxwell, 11 id. 143 ; Williamson v. (Penn.) 285 ; Pemigewassett Bank 
 
 Scott, 17 Mass. 249. v. Rogers, 18 N. H. 255. 
 
 * Straton v. Rastall, 2 T. R. 366 ; 
 Lampon v. Corke, 5 B. & A. 611. 
 
 39
 
 610 EVIDENCE. [chap. XV. 
 
 yoiid the mere lact of hi.s Ix-ing an officer of the corporation 
 i.s .shown.' But admissions or istutements made 1)}' a corpo- 
 rate officer Avithin tiie line of his authority, or in execution 
 of his authority as such, is admissible.^ 
 
 AVhere a (Icinaiid wjis made upon the secretary of a rail- 
 road company lor an oriirinal or certified copy of a sul)scrip- 
 tion paper, proved to have been in possession of the com- 
 pan}', it was held that, the presumption being that he was 
 the custodian of such papers, his answer that it was lost was 
 admissible as competent evidence of this fact against his 
 employer.^ But where the cashier, upon inquiry made by a 
 surety on a note in the bank, the day after its maturity, in- 
 formed that it had l)een paid, and the surety consequently 
 relinquished property Avliich he held for his indenmity, such 
 answer of the cashier was held not admissible in evidence, 
 as not within the scope of his authority or duty.^ 
 
 In a Massachusetts case the defendant gave his bond to the 
 plaintiff for a certain sum, in consideration of the assigimient 
 of a patent, tiie plaintiff representing that a certain company 
 had purchased the right to use it, and were to pay a certain 
 sum therefor, and that its validity had been estal)lished in a 
 court of law in a certain place. It was held in an action 
 upon a promissory note, given in exchange for the bond, that 
 it was not competent for the defendant to give in evidence 
 the declarations of the officers of the company when refusiuir 
 to [)ay the sum re[)resented to be due from them, as to the 
 reasons for such refusal ; nor to prove that the plaintiff had 
 ascertained by inquiry the untruth of his statement that the 
 validity of the patent had been established in a court of 
 law.-^ 
 
 In a New Hampshire case II. applied to the cashier of a 
 bank for delay of payment of a note he had given the bank, 
 and his i)roposition, in writing, was submitted to the directors. 
 
 ' Law V. Conn., etc., R. R. Co., 111. 297; Franklin Bank'?). Cooper, 
 
 45 N. H. 370 ; 4t5 id. 284 ; Robinson m Me. 180. 
 
 V. Lane, 19 Ga. 337. =< Indianapolis, etc., R. R. Co. v. 
 
 " Sewanee Mining- Co. 7). Mc- Jewett, 16 Ind. 273. 
 
 Mahon, 1 Head. (Tenn.) 582 ; Chi- * Bank v. Steward, 37 Me. 519. 
 
 cag-o, etc., R. R. Co. v. Coleman, 18 " McMahon v. Tyng, 14 Allen 
 
 (Mass.), 167.
 
 SEC. 187.] ADMISSIONS. 611 
 
 The cashier informed H. that his proposal was accepted, and 
 the delay was given. It was held that the declarations of 
 the cashier to H. were not evidence of what the terms of the 
 contract were.^ In an action by a corporation to recover 
 damages for the conversion of property conveyed to it by P. 
 and B., its officers and principal stockholders, and taken by 
 the defendant on execution against P. and B., the issue was 
 as to the good faith of the transfer to the corporation. It was 
 held that evidence was admissible as to the acts and declara- 
 tions of P. and B., tending to show that they were using the 
 property after the transfer as if it were their own.^ The 
 declarations of a person made while obtaining the prom- 
 issory note of another, to be used as a part of his con- 
 tribution towards the capital stock of an insurance company, 
 are not admissible against the company, unless it is shown 
 that the person so obtaining the note was the agent of the 
 company.^ A statement made to a bank officer by a person 
 applying at a bank for the discount of a note, of the in- 
 tended use of the money, and by that officer communicated to 
 the directors, may be evidence to affect the l)ank with notice 
 of such use ; but is not evidence from which a jury would 
 be authorized to find an agreement between that person and 
 the bank, that the money should be used in that way."* 
 Proof of an admission b}^ the secretary of an msurance 
 company, made the morning after a loss had occurred, that 
 the property destroyed was insured at the time of the fire, 
 is not competent as principal evidence, being the declaration 
 of a third person, who, though an agent of the defendant, 
 was not then engaged in the performance of any act relating 
 to his agency, so as to bring the case within the rule which 
 allows the declaration of an agent as part of the res gestoe. 
 Neither is such evidence competent, for the purpose of dis- 
 proving the agent's denial of the alleged admission.® 
 
 * Bank of Grafton v. "Woodward, * Merchants' Bank v. Spalding, 9 
 
 5 N. H. 301. N. Y. 57. 
 
 ^ Persse, etc., Paper "Works v. * First Baptist Church v. Brook- 
 
 Willett, 1 Robt. (N. Y.) 131. lyn, etc., Ins. Co., 28 N. Y. 153. 
 
 ' Holbrook v. Wilson, 4 Bosw. (N. 
 Y.) 64.
 
 612 EVIDENCE. [CIIAP. XV. 
 
 A foreman of a corporation which has ceased business 
 cannot bind the stockholders personally l)y his settlement 
 made with the operatives, and therefore evidence of such 
 settlement is inadmissible, in a suit against them to recover 
 for services rendered to the corporation.' The declarations 
 of the cashier of a l)ank, of his knowledge that certain stock 
 which stood upon the books of the bank in the name of a 
 certiiin individual was a trust fund invested for the benefit 
 of others, may be given in evidence under certain circum- 
 stances, to charge the bank with knowledge of the fact.^ 
 The president of a railroad company sufficiently represents 
 his corporation to make his admissions evid(Mice against the 
 company.^ So a declaration of the engineer just before or 
 after an accident by running over a cow that " his engine 
 should make her time or he'd blow her to hell," is admissible.'* 
 But evidence of the statements of an engineer of a rail- 
 road corporation, as to matter in relation to which he is not 
 shown to be their agent in some wa}^, is inadmissible.* 
 
 Where a passenger applied to the agent of a railroad 
 company for a ticket, who gave him a certificate that the 
 tickets "were all out," which he showed to the conductor, 
 the testimony of the agent is competent to show that the 
 passenger applied for a ticket and the ceititicate to show 
 that the conductor knew that the fault of the passenger's 
 not having a ticket, lay with the company and not with the 
 passenger.^ Officers ot a nmnicipal corporation can only bind 
 the corporation by admissions relating to matters which come 
 within the scope of their official duty. Thus where notice 
 of a certain claim upon a town or city is required to be given 
 to a certain officer, his admission that snch notice has been 
 given is clearly admissible, but his admission that the claim 
 is a valid one is not admissible.'^ Nor can his admission be 
 used as to a matter which lefjallv should be submitted to the 
 
 " strong V. Wheaton, 38 Barb. * Railroad Co. v. Messino, 1 Sneed 
 
 (N. Y.) 616. (Tenn ), 220. 
 
 » Hariisburgh Bank v. Tyler, 3 * Baltimore & Ohio R. R. Co. V. 
 
 W. & S. (Penn.) 373. Gallahue, 12 Gratt. (Va.) 655. 
 
 » Charleston, etc . R. R. Co. v. ^ St. Louis, etc , R. R. Co. v. 
 
 Blake, 12 Rich. (S. C.) 634. Dally. 19 III. 353. 
 
 ' Folsom V. Underbill, 36 Vt. 580.
 
 SEC. 187.] ADMISSIONS. 613 
 
 voters of the town or city/ nor to defeat the title of the 
 corporation to lauds.^ 
 
 ' MorreU v. Dixfield, 30 Me. 157. « Walker v. Dunspaugh, 20 N. Y 
 
 JVO.
 
 CHATTER XVI. 
 
 JUDICIAL EVIDENCE. 
 SECTION. 
 
 188. Of -what Matters Courts -will take Judicial Notice. 
 
 189. Public Statutes. 
 
 190. Private Statutes. 
 
 191. Instances of Matters of which Courts ynll not take Judicial 
 
 Notice. 
 
 192. Matters of Experience. 
 
 193. Statutes and Common Law of other States. 
 
 194. As to Judicial Records. 
 
 195. Miscellaneous Matters Noticed without Proof. 
 
 196. Rule where Statutes are Relied on as Ground of Action or 
 
 Defense. 
 
 Sec. 188. Of what Matter.s Courts will take Judicial Notice. 
 
 Tliere arc; ccitaiu matters of which courts will take judicial 
 notice, without putting parties to the trouble and expense of 
 proving them. But these matters are comi)aratively few, 
 and no precise rules can be given relative thereto. But 
 the courts in this country are much more liberal in this 
 respect than the courts of England, and that for the rea- 
 son that in this country there is less jealousy of the power 
 of courts, and less apprehension of danger that their powers 
 will be tyrannically or oppressively exercised, because they 
 are created by, and derive all their support from, the people, 
 who can make or unmake them, if necessity requires. But 
 in this country even, the courts do not overstep the ordinary 
 limits of common sense and sound discretion in the exercise 
 of this power ; but there are matters so fixed, so certain, so 
 notorious, so essentially a part of the ordinary and usual 
 experience of mankind, that to require proof in reference to 
 their existence or operations would be over nice, and pro- 
 ductive of useless expense and hardship upon parties. 
 
 Sec. 189. Public Statutes. 
 
 Our courts will take judicial notice, without proof, of all 
 jpublic acts of the State ; but private acts, or acts that are
 
 SEC. 189.] JUDICIAL EVIDENCE. 615 
 
 confined in their operation to a few persons, and have no 
 general application or efiect, mnst, if relied upon, be set 
 forth in the pleadings, and proved upon trial, the same as 
 any other fact.^ 
 
 Acts which affect public rights, as acts giving authority to 
 individuals or corporations to make erections or improve- 
 ments in public navigable streams which affect the rights of 
 navigation, fishery, or any common public right, will be re- 
 garded as pul)lic acts, although not specially made so in the 
 act itself, and although its benefits or advantages are confined 
 to a few persons.^ 
 
 It would seem, however, that this rule must be restricted 
 to cases where public rights arc measurably afiected, and 
 where, except for the " act," the acts done in pursuance of 
 it would be w, 'public nuisance ; that is, it must be such an in- 
 vasion of public and common rights as to pnt every person 
 upon inquiry as to the legality or otherwise of the act. In 
 order to make an " act " a " public act" within the rule, it 
 is not necessary that it should be applicable equally to the 
 whole State ; but any act which, although cronfined to a par- 
 ticular district, or part of the State, even though confined to 
 a single townshij), or a part of a township, if it applies 
 equally to such district, part of the State or township, is a 
 "public act," of which courts will take judicial notice without 
 proof Thus it has been held that a special act of the legis- 
 lature, extending the power of a single public officer, as an act 
 extending the jurisdiction of a certain town constable through- 
 out the county or State, is such an act as courts are bound to 
 notice without proofs So of an act under which a person 
 claims the office of a judge of a particular court.* So of an 
 act for the protection of fish in a certain river.^ So of an 
 act providing for the survey of certain lands in a particular 
 county, and providing that no sales of any portion of such 
 
 * Bowie V. City of Kansas, 51 Mo. ^ Bixler v. Parker, 3 Bush (Ky.), 
 454 ; Covington Draw Bridge Co. v. 166 ; Levy v. State, 6 Ind. 281. 
 Shepard, 20 How. (U. S.) 227. * Clark v. Com., 29 Penn. St. 129. 
 
 ^ Hammond v. Inloes, 4 Md. 138. ^ Burnham v. "Webster, 5 Mass. 
 
 266.
 
 01P) EVIDENCE. [chap. XVI. 
 
 lands should be made unless surveyed and niaikcd.^ So 
 where an act, otherwise private and local, contains provisions 
 that are public and general, the act, although partly local and 
 partly public, will be deemed a public act, which need not 
 be pleaded or proved.^ Thus an act authorizing a municipal 
 corporation to raise money by tax, which also contained a 
 clause that restricted or changed the jurisdiction of the courts 
 in reference to actions m which such corporation was a party, 
 was held to be a public statute, of which the court would 
 take judicial notice.^ 
 
 It will often be found difficult to determine precisely what 
 statutes are, and what are not " pul>lic statutes" when the 
 statute only applies to a municipal corporation, or a certain 
 district of the State. But the real test applied by the courts, 
 and the real guide seems to be, that an act which applies 
 equally to all persons within the district designated, or to 
 all persons doing or omitting to do a particular act, is a 
 public statute within the rule. "Though it be true," says 
 BuLLER, J.,"* " that an act of Parliament relating to trade in 
 general is a public act, yet a statute which relates only to a 
 certain trade is a private one." But in another case^ the court 
 defined the distinction between an act partly private and partly 
 public, in this way : "Although an act concern a particular 
 thing, and therefore is private in its nature, yet if a forfeiture 
 be given to the king by it, this makes it a public act." 
 
 So in a later case^ the court held that, independent of 
 the statute of Aime, an act providing that the sheriff might 
 assign the bail bond was a public statute, of which the court 
 would take notice without its being either pleaded or proved. 
 
 In an early English case'' the learned reporter defined the 
 distinction between public statutes and private statutes thus : 
 "The rule of the law is, that of general statutes the court 
 ought to take notice, although they be not pleaded ; other- 
 
 ' Pierce v. Kimball, 9 Me. 54. ^ Bretz v. The Mayor of N. T., 6 
 But contra, see Allegheny v. Nelson, Rob. (N. Y.) 330. 
 25 Penn. St. 332. * Kirk v. Norvill, 1 T. R. 125. 
 
 " People V. McCann, 16 N. Y. 61 ; ' King v. Briggs, Skin. 428. 
 ■Williams v. People, 24 id. 407 ° Samuel v. Evans, 2 T. R. 569. 
 
 ' Holland's Case, 4 Coke, 79.
 
 SEC. 189.] JUDICIAL EVIDENCE. 617 
 
 wise of special or particular statutes ; therefore, for the 
 better understanding of your books in this point, and which 
 shall be said in judgment of law, statutum generale, and 
 which is statutum speciale, it is to be known that ' generale 
 dicitur a genere, etc., sjpeciale a specie ;^ and there are genus, 
 species tt individua. Spirituality is genus ; bishopric, deanery, 
 etc., are specits, and bishopric, or deanery of Norwich is in- 
 dividual. Tiierefore, it was resolved in this case that, foras- 
 much as the act of 21 Henry 8 concerns the whole spirituality 
 in general, it was a general act, of which the judges ought 
 to take notice."' 
 
 Thus it will l)e seen that, although an act may affect very 
 many persons, yet, if it is not equal and general in ils appli- 
 cation to all, in the State or the locality to which it rehites, 
 it is a private act, which must be pleaded and proved ; but, if 
 it is general in its effect, and applies equally to all within the 
 locality to which it relates, it is a public act, of which the 
 courts will take judicial notice. This is the modern rule, 
 , which varies essentially from the doctrine advanced in some 
 of the reports. Yet, whenever a purely private act provides 
 in certain events a forfeiture to the government, or, in the 
 case of a corporation, that the government in a certain 
 contingency may take the property, they are deemed public 
 acts.^ And indeed all acts which in any wise concern the 
 government, or any of its co-ordinate branches, may be said 
 to be public.^ So all acts in amendment of acts declared 
 public by the terms of the original act.^ So acts authorizing 
 all corporations of a particular class to do certain acts, as all 
 the railroads of the State to subscribe for the stock of other 
 roads.^ Or indeed any statutes, providing penalties or rem- 
 edies affecting all persons who may offend against them, when 
 
 ' In Claypool v. Carter, Pash. 31, bishops only, who are but species of 
 
 it was held that an act of Parliament spirituality. 
 
 relating to Eton and "Winchester - Jenkins v. Union Turnpike Co., 
 
 colleges was a particular act, of 1 Caines' Cas. (N. Y.) 86. 
 
 which the judge should not take ^DwarrisonStatutes,vol. 2,p. 464. 
 
 notice. So in Elmer -y. Gate, 2 Roll. * Bank of Utica v Smedes, 3 Cow. 
 
 466, that the statute of 30 Eliz., re- (N. Y.) 684. 
 
 lating to leases made by bishops, was ^ White v. Syracuse & Utica R. R. 
 
 a special act, because it concerned Co., 14 Barb. (N. Y.) 559.
 
 618 EVIDENCE. [chap. XVI. 
 
 all persons may (•oiue within llicir purview, are regarded as 
 public' 
 
 Sec. 190. Private Statutes. 
 
 Cliartcrs ul iniinicipal corporatioiis are public acts, whether 
 so declared in the act creating thcni or not, and need not lie 
 allegetl in the pleadings, or proved on the trial, in actions 
 where the provisions of such charters become material.^ 
 And the same is true as to all amendments thereto.^ But when 
 nnurKi[)al eorporations are formed under a general law, their 
 organization and all the legal steps requisite to i)erfect their 
 organization nmst be proved. So, where, by the terms of 
 the charter, the question of acceptance is submitted to the 
 peopUh its acceptance by them must be duly alleged and 
 i)roved.^ By-laws of a numicipal corporation are private acts 
 and will not be judicially noticed.^ But city courts will take 
 judicial notice thereof.^ Charters of private corporations are 
 })rivate acts, unless made public l)y the terms of the act 
 creating them, and must be proved.'^ In Kentucky, courts 
 are now by statute required to take judicial notice of all laws,' 
 public or private.^ But otherwise of charters of banks 
 authorized to issue notes.'' But courts will not take judicial 
 
 ' Pierce v. Kimball, 9 Me. 54; ' Tucker v. Com., 4 Bush (Ky.), 
 
 Hendee v. Ayres, 12 Pick. (Mass.) 40 ; Mooney v. Kennett, 19 Mo. 551 ; 
 
 344. Cox V. St. Louis, 11 id. 431 ; Garvin 
 
 " State V. Sherman, 42 Mo. 210 ; v. Wells, 8 Clarke (Iowa), 286 ; 
 
 Griffing V. Gibl), 2 Black (U. S.), Barker r. Mayor of N. Y., 17 Wend. 
 
 519; Alexander v. Milwaukee, 14 (N. Y.) 464. 
 
 Wis. 247 ; Brell v. McDonald, 7 Kan. * Conboy v. Iowa City, 2 Clarke 
 
 426 ; Case v. Mobile, 30 Ala. 538 ; (Iowa), 90 ; State v. Lieber, 11 id. 
 
 Terry v. Milwaukee, 15 Wis. 490; 407. 
 
 Janesville v. Milwaukee, etc., R. R ■" Drake v. Flewellon, 33 Ala. 674 ; 
 
 Co., 7 id. 484 ; Swaine v. Comstock, Tucker v. Com., 8 Bush (Ky.), 440; 
 
 18 id. 463 ; Smith v. Flourney, 47 Perdicaris v. Trenton, etc., 29 N. J. 
 
 Ala. 345 ; Letier v. Oskaloosa, 41 L. 367 ; Butler v. Robinson, 75 Mo. 
 
 Iowa. 353 ; Bretz v. Mayor of N. Y., 192. 
 
 6 Rob. (N. Y.) 325; Fauntleroy v. " Colliers. Baptist, etc., Soc, 48 
 
 Hannibal, 1 Dill. (U. S.) 118 ; Haw- B. Monr. (Ky.) 68. 
 
 thomei). Hoboken, 3Vroom(N. J.), " Buell v. Warner, .S3 Vt. 570; 
 
 72 ; Payne v. Tread well, 16 Cal. 220. Davis v. Bank of Fulton, 31 Ga. 59 ; 
 
 ' Hawthorne v. Hoboken, ante; Bank of Newben-y v. Gr. C. R. R. 
 
 Terry ??. Milwaukee, rtra^e. Co., 9 Rich. (S. C.) 495; Shaw v. 
 
 * Johnson v. Common Council, 16 State, 3 Sneed (Tf*nn.), 86 ; State 
 
 Ind. 227. Bank v. Watkins, 1 Eng. (Ark.) 123.
 
 SEC. 191.] JUDICIAL EVIDENCE. 619 
 
 notice of the value of their notes, although used as currency, 
 nor of the depreciation of the national currency.^ 
 
 But courts will take judicial notice of the kind of currency 
 in use, and that gold and silver coin is no longer used as 
 such, but has become an article of traffic and merchandise,* 
 and that contracts made at a particular time are made in 
 reference to the particular currency then in use ;^ also of the 
 genuineness and value of American coin, as dimes, eajjles, 
 etc.; and in a case where in an indictment the respondent 
 was charged with the larceny of a gold coin called an Ameri- 
 can eagle without stating its value, this was held sufficient.* 
 But the value of foreign coin or currency must be proved, 
 unless its value has been fixed Ijy congress.^ 
 
 Sec. 191, Instances of Matters of which Courts will not tzike Judicial 
 
 Notice. 
 
 Courts will not take judicial notice of foca/ customs, or the 
 
 meaning of devices used in a particular trade, and the same, if 
 
 relied upon, must be proved f but they will judicially notice 
 
 a general custom of merchants throughout the State,' or 
 
 one so universal and general that persons are presumed to 
 
 know of it \^ and of the law merchant ;^ and of commercial 
 
 usage as to days dies non, as Sundays and Christmas.^" Courts 
 
 will not generally take notice of historical facts," except 
 
 matters of public history affecting the whole State or people,^* 
 
 * Feemster v. Ringo, 5^ Monr. Smith (N. Y.), 1 ; Harsh v. North, 
 (Ky.) 336 ; Madawell v. Holmes, 40 40 Penn. St. 241 ; Humphreysville, 
 Ala. 391; but see State Bank v. etc., Co. v. Vt., etc., Co.< 33 Vt. 92; 
 Watkins, 1 Eng. (Ark.) 123, contra. Turner v. Fish, 28 Miss. 306 ; Sulli- 
 
 * U. S. V. American Gold Coin, 1 van v. Heuse, 2 Col. 424. 
 
 Woolw. (U. S.) 217; Lampton v. ' Smith v. Miller, 43 N. Y. 171; 
 
 Hazzard, 3 Monr. (Ky.) 149 ; Janes Bronson v. Windsor, 8 id. 182. 
 
 V. Overstreet, 4 id. 547. ^ McKinnon v. Bhss, 21 N. Y. 206 ; 
 
 3 Buford V. Tucker, 44 Ala. 89. Munn v. Burch, 25 111. 35 ; Gregory 
 
 ^ Daily v. State, 10 Ind. 536; U. v. Baugh, 4 Rand. (Va.) 611. 
 
 S. V. Bums, 5 McLean (U. S.), 23 ; » Jewell v. Centre, 25 Ala. 498. 
 
 U. S. V. King, 5 id. 208. '» Sassur v. Farmers' Bank, 4 Md. 
 
 * Kermott v. Ayer, 11 Mich. 181 ; 409. 
 
 McButt V. Hoge, 2 Hilt. (N. Y. C. " McKinnon v. Bliss, 21 N. Y. 206 ; 
 
 P-) 81. Gregorys. Baugh, 4Rand. (Va.) 611. 
 
 * Johnson v. Robertson, 31 Md. ^ Simontonu. Columbian Ins. Co., 
 416 ; Wheeler v. Webster, 1 E. D. 37 N. Y. 174 ; Payne v. Treadwell,
 
 620 EVIDENCE. [cilAr. XVI. 
 
 ;is of the existence of civil war in the countrv/ or of the 
 .sf|»;u':ition of cluMchcs of the .same (lenoiiiiiialioii, as the sepu- 
 lalioii of the Mcthocli.st church into two national bodies under 
 llu- name of the Methodist Church North, and Methodist 
 Church South f or that u certain college is a national 
 institution ;^ of the division of a State into towns ;* of 
 the i)olitical and social condition of the people of the country 
 over which their jurisdiction extends ;^ of who, from time, 
 to time, presides over the [)atent office, or other executive or 
 judicial department of the government, even though for a 
 temporary, rather than a permanent, purpose.^ As to the 
 history of a country ; the places where courts aie, or formerly 
 have been, held therein, and as to the times when said courts 
 were held, and when the change in the place or time of the 
 holding of courts was made.'' And that it has adopted town-| 
 ships, and whcn.^ Of who are pul)lic officers of the State, 
 executive or judicial, and of any changes therein ; the time; 
 when their term of office commenced, and when it ended;; 
 also of the genuineness of their signatures.^ As who is gov- 
 ernor,"* and of appointments made by him under the constitu- 
 tion and laws ;" of who are judges of sul)ordinate courts ;'- 
 of orders issued by competent military authority ; '^ of who 
 are justices of the peace in the county where the court is 
 held, and of the genuineness of their signatures ;'^ who are 
 elected sherifi's, time when their term of office commences, 
 
 16 Cal. 220 ; Rice v. Shook, 27 Ark. ' Robertson v. Teal, 9 Tex. 344 ; 
 
 137 ; Killebreur v. Murphy, 3 Hei.sk. Ross v. Austell, 2 Cal. 183. 
 
 (Term.) 340; CuylertJ.Terrlll, 1 Abb. * Rock Island t'. Steele, 31 111.543. 
 
 (U. S.) 169; Stokes v. Macken, 62 • People v. Johr, 22 Mich. 461; 
 
 Bar)). (N. Y.) 145 ; Wood v. Wilder, Heizer v. State, 12 Md. 330. 
 
 43 N. Y. 164 ; Ferdinand v. State, '" Wells v. Jackson, etc., Co., 47 
 
 39 Ala. 706. N. H. 235. 
 
 ' Swinnerton v. Columbia Ins. " States. Evans, 8 Humph. (Tenn.) 
 
 Co., UTite. 110. 
 
 * Humphrey v. Bumside, 4 Bush '* Kilpatrick ?'. Com., 31 Penn. 198. 
 (Ky.), 215. " New Oi-leans i). Templeton, 20 
 
 ' Oxford Rate, 8 E. & B. 184. La. Ann. 141 ; Lanfier v. Mester, 
 
 * State V. Powei*s, 25 Conn. 48; 18 id. 497; Taylor v. Graham, id. 
 King V. Kent, 29 Ala. 542. 656. 
 
 * Irwin V. Phillips, 5 Cal. 140. " Graham v. Anderson, 42 HI. 514 ; 
 
 * York & Maryland Line R. R. Co. Chambers V. People, 4 Scamm. (111.) 
 V. Winans, 17 How. (U. S.) 30. 351.
 
 SEC. 191.] JUDICIAL EVIDENCE. G21 
 
 and wheii it ends, and of the genuineness of their signa- 
 tures ;^ but not who are deputy officers, sheriifs or other- 
 wise.^ Who are the officers of the court, and, in a case 
 where the word "clerk " was omitted from iha jurat of an affi- 
 davit, it was held sufficient, as the court was bound to know 
 who was clerk, and whether his signature was genuine.^ But 
 not who are officers of other courts.* That a certain person 
 is an attorney.^ And of the genuineness of his signature 
 connected with professional acts done by him, but not in 
 cases in which he is himself a party .^ Also of what attor- 
 neys have appeared in a causc.'^ Who are executive and 
 judicial officers of the United States, elected or appointed 
 in pursuance of the constitution or laws of congress.^ Who 
 are registrars of a county.^ 
 
 Of general elections,^" ])ut not of elections in other States, 
 except where it is tixcd by act of congress.^^ And who are 
 elected to fill certain offices, when their term begins, when 
 it ends, and of all changes therein, whether by death, 
 resignation or otherwise, and of the genuineness of their 
 signature.^^ 
 
 Courts will take j udicial notice of notarial certificates as 
 proof of presentation and non-payment ;" so of foreign trea- 
 
 ' Rayland V. Wynn's Adm., 37 • York & Md. Line R. R. Co. v. 
 
 Ala S2 ; Alexander v. Burnham, IS Witians, 17 How. (U. S.) 30. 
 
 Wis. 199 ; Wetherbee v. Dunn, 32 ' Fancher v. De Montegre, 1 
 
 Cal. 106; Dyer v. Flint, 21 111. 80; Head. (Tenn.) 40. 
 
 Ingraham v. State, 27 Ala. 17. '" Rice v. Mead, 22 How. Pr. (N. 
 
 "Ward V. Henry, 19 Wis. 76; Y.)445; Davis v. Best, 2 Clarke 
 
 Joyce V Joyce, 5 Cal. 449 ; State (Iowa,), 96 ; State v. Minnick, 15 id. 
 
 Bank-B. Curran, 5 Eng. (Ark.) 142; 123. 
 
 Lund V. Patterson, Minor (Ala.), 14. " Taylor r. Renne, 35 Barb. (N. 
 
 » Mayor «. State, 2Sneed (Tenn.), Y.) 272; Dale v. Wilson, 16 Minn. 
 
 11 ; Dyer v. Loat, 57 111. 179; Thomp- 525. 
 
 son V Haskell, 21 id. 215; Bishop " Alexander ■». Buniham, 18 Wis. 
 
 V. State, 30 Ala. 34. 199 ; Wells u. Jackson, 47 N. H. 235 ; 
 
 * Norwell i\ McHenry, 1 Mann. ^.C7)a?Ye Peterson, 33 Ala. 74 ; State 
 (Mi;h.) 227. v. Williams, 5 Wis. 308; Heizer «. 
 
 * People V. Nevins, 1 Hill (N. Y.), State. 12 Ind. 330 ; Ragland v. Winn, 
 154. 1 Ala. 270 ; Templeton v. Morgan, 
 
 * Masterson v. Le Clare, 4 Minn. 16 La. Ann. 438 ; Ragland v. Winn's 
 163. Adra'r, 37 Ala. 32. 
 
 ' Symmes v. Mayor, 21 Ind. 443. " Pierce v. Indseth, 106 U. S. 546.
 
 C>-22 KVIDKNCE. [rilAl-. \VI. 
 
 tii'.s with our national government */ so of the charter of a rail- 
 road company printed with legislative documents l)y author- 
 ity of tiie State ;'^ so of what is meant by the words " Gift 
 enterprise."^ Courts will take judicial notice of the tiuie 
 when the sun rises and sets during dillerent days and 
 seasons ;* of the days of the week on which particular days of 
 the month fall ;* of what constitutes the twentieth judicial 
 day of the term of the court below ;" that a particular 
 date falls on Sunday ;" of its own judgment in a suit 
 Avhich is virtually a part of the same i-ecord ;" of the 
 expiration of a bank charter.^ The United States comls will 
 take judicial notice that the United States for revenue pur- 
 poses is divided into districts with certain geographical 
 boundaries/" and also of the public statutes of the several 
 States/'^ but State courts Mill not.^^ Courts will take judi- 
 cial notice of the official acts of an alderman /^ of the official 
 signatlue of its clerk /^ of the repeal of a section of an act 
 incorporating a town ;''^ of the suspension of a public statute/^ 
 State courts will not take judicial knowledge of bankruptcy 
 proceedings ;'' but they will take notice of the chancery dis- 
 trict in which a certain town in the State is situated /^ of 
 matters of public history, as of Fremont's public career in 
 
 • Lacroix v. Sarrazzin, 15 Fed. " Robards v. Morley, 80 Ind. 185 ; 
 Rep. 489. . Neese v. Farmers' In.s. Co., 55 Iowa, 
 
 "" Hall V. Brown, 58 N. H. 93. 604 ; Chapman v. Colby, 47 Mich. 
 
 But see Timlow v. Philadelphia, Ifj. 
 
 etc., R. R. Co., 99 Penn. St. 284. " Fox v. Com., 81 Penn. St. 511. 
 
 ' Lehman v. State, 81 Ind. 15. '♦ Buell v. State, 72 Ind. 523. But 
 
 * People 1'. Chee Keo, 61 Cal. 404. see Russell v. Sargent, 7 111. App. 
 
 * Philadelphia, etc., R. R. Co. v. 98, where it was held that an 
 Lehman, 56 Md. 209 ; Reed v. "Wil- appellate court will not take judi- 
 son, 41 N. J. L. 29. cial notice of what persona are 
 
 • Le\vis V. Wintrode, 76 Ind. 13. judg-es of the Circuit Court. 
 
 ■" Mf^Intosh V. Lee, 57 Iowa, 356. " Belmont v. Moi-rill, 69 Me. 314. 
 
 * Fai-rar v. Bates, 55 Tex. 193. '» East Tenn. Ii-on Manuf. Co. v. 
 
 • Terry v. Merchants', etc.. Bank, Cxaskoll, 2 Lea (Tenn.), 242. 
 
 66 Ga. 177. " Esta})rook Steel Pen Manuf. Co. 
 
 '" United States v. Jackson, 104 U. r. Ahem, 30 N. J. Eq. 341. 
 
 8. 41. " Alabama, etc.. Life Ins. Co. V. 
 
 " Edward v. Flanagan, 104 U. S. Cobb, 57 Ala. 547. 
 462.
 
 SEC. 191.] JUDICIAL EVIDENCE. 623 
 
 California in 1846 and '47 ;^ of the existence of a quasi pub- 
 lic corporation, as a railroad corporation f of the history of 
 the State and its topography and condition ;^ of the course 
 of seasons and of husbandry f of the course of business in 
 the country and of new processes of practical utility in facil- 
 itatinof trade :^ of the functions of town officers under the 
 statute,^ and of common epithets which are generally under- 
 stood, as "Beecher business," applied to a clergyman.^ 
 
 Of the resignation or coming in of public officers f and of 
 tlie duties imposed upon persons or officers by State or na- 
 tional law respecting particular matters.'' Of the jurisdic- 
 tion of courts of the State and of the United States, and of 
 the acts giving it.^" That the State and townships are polit- 
 ical bodies.^^ Of constitutions of other States and powers 
 thereby given to courts. ^^ That public streets in cities are 
 public highways. 13 That municipal corporations have the 
 power to improve streets.^* Of the navigability of the 
 streams of the State.^^ But not as to what streams ^ve, float- 
 able}^ Of the facilities for public travel between different 
 points, the great lines of public travel and their connec- 
 tions.^^ Also, of facts that are a part of the experience of 
 the day, as the usual length of time required for steam pas- 
 
 » De Cells v. United States, 13 Ct. " Le Grange -u. Chapman,ll Mich, 
 
 of Cl. 117. 499. 
 
 '^ Baltimore, etc., R. R. Co. v. *^ Butcher tj. Brownsville, 2 Kan. 
 
 Sherman, 30 Gratt. (Va.) 602. 70. 
 
 ^ Wilson V. State, 54 Ind. 553. " w'lttaker v. Eighth Av. R. R. 
 
 * Ross V. Boswell, 60 Ind. 235 ; as Co., 5 Rob. (N. Y.) 650. 
 
 when crops mature. Tomllnson v. " Murray v. Titcomb, 19 Ind. 135. 
 
 Greenfield, 31 Ark. 557. w Neaderhauser v. State, 28 Ind. 
 
 ^ Wlggin Ferry Co. v. Chicago, 257 ; Brown v. Scofield, 8 Barb. (N. 
 
 etc., R. R. Co., 5 Mo. Ajjp. 347. y.) 237. 
 
 « Ingles V. State, 61 Ind. 212. w ^^^^^ ^_ ^^en, 42 N. Y. 378 ; 
 
 ' Bailey v. Kalamazoo Publishing Rhodes v. Otis, 38 Ala. 578. 
 
 Co., 40 Mich. 251. n Manning v. Gasparie, 27 Ind. 
 
 * Ex parte Peterson, 33 Ala. 74 ; 399 . gmith v. N. Y. Central R. R. 
 State -w. Williams, 5 Wis. 308 ; Heizer Co., 43 Barb. (N. Y.) 225 ; Mayhee 
 V. State, 12 Ind. 330. -y. Camden & Amboy R. R. Co., 45 
 
 ^ Semple v. Hagar, 27 Cal. 163. N. Y. 514 ; Hines v. Cochran, 13 
 
 '* Meshke v. Van Daren, 16 Wis. ind. 175. 
 31^ ; Bretz V. Mayor, etc., of N. Y., 
 6 Rob. (N. Y.) 326.
 
 (324 EVllJENCE. [cilAr. XVI. 
 
 sage across the Atlantic.^ Of the coincidence of the days 
 of the week and month.* Of the terms of conrt in the 
 State, their comnicneement and closc.^ Of the area of an 
 established eouiily and the towns of which it is composed.* 
 And where in an indictment an offense is .stated to have been 
 eonnnitted in a certain town, without naming the county, it 
 is sutiicient, as the court will take jucheial notice of the county 
 in which the town is situated.^ But in England the rule is 
 otherwise.'* Of what lands arc held by the general govern- 
 ment in the State -J of the boundaries of the State, '^ and of 
 all agreements in reference thereto,* and of all chanijes 
 therein ;^° and of counties :" and of municipal corpora- 
 tions, when the boundaries are defined in the act creat- 
 ing them ;"^ but not where their boundary is purely a matter 
 of municipal regulation, or of record under general laws.'^ 
 
 Courts will not take judicial notice that gin and turpen- 
 tine are inflammable licjuids ;^^ but they will that coal oil is.^^ 
 So they will take judicial notice of the distance between the 
 principal cities of the country, and of the time ordinarily re- 
 quired for railway trains to run to and from them ;'^ but they 
 
 ' Oppenheim v. Wolf, 3 Sandf. « State v. Dunwall, 3 R. I. 480. 
 
 Ch. (N. Y.) 571 ; 49 N. Y. Legal ' Thomas v. Stigers, 5 Penn. St. 
 
 Obs. 259. 480. 
 
 >» State V. Hammett, 2 Eng. (Ark.) " People v. Snyder, 41 N. Y. 397. 
 
 492 ; Sprowl V. Lawrence, 33 Ala. " Ross v. Reddick, 2 111. 73 ; State 
 
 106; Seeman v. Owen, 31 id. 167; v. Tootle, 2 Harring. (Del.) 541,- 
 
 Mechanics' Bank 1J. Gibson, 7 Wend. Goodwin v. Appleton, 21 Me. 453; 
 
 (N. Y.) 460; Davis v. Petticolas, 34 Ham v. Ham, 39 Me. 263; State v. 
 
 Lex. 27. Jackson, id. 291. 
 
 ' Piigh V. State, 2 Head. (Tenn.) " Griffingv.Gibb, 2Black (U. S.), 
 
 227 ; Morgan v. State, 12 Ind. 448; 519 ; City Council of Montgomery f- 
 
 McGinness V. State, 24 id. 500 ; M. & W. Plank Road Co., 31 Ala. 
 
 Bethune v. Hale, 45 Ala. 522. 79 ; Ham v. Ham, 39 Me. 2f'.3 ; Chap- 
 
 * Board of Commissioners v. man v. Wilber, 6 Hill (N. Y.), 475; 
 Spittler, 13 Ind. 235; Kidder v. Bronson r. Gleason, 7 Barb. (N. Y.) 
 Blaisdell, 45 Me. 461. 472. 
 
 * Vandorwerker v. People, 5 " Brune -y. Thompson, 2 Gale & 
 Wend. (N. Y.) 530 ; State v. Reader, D. 1 10. 
 
 60 Iowa, 527. " Moseley v. Vt. Mut. Fire Ins. 
 
 * Anonymous, 1 Chitty, 31 ; Rex Co., 55 Vt. 142. 
 
 V. Bourn, Burr. 42 ; Brune V. Thomp- " State v. Hayes, 78 Mo. 307. . 
 son, 2 Ad. & El. 789. '• Pearce 'O. Langfit, 101 Penn. St. 
 
 * Lewis V. Harris, 31 Ala. 689. 507 ; 47 Am. Rep. 737.
 
 SEC. 191.] JUDICIAL EVIDENCE. 625 
 
 will not take judicial notice of the distance of a certain mining 
 location from the seat of government ; ^ but they will j udicially 
 notice that there are or are not tidal streams in the State, as the 
 fact may be,^ and which of thein are or are not tidal streams. 
 That a town in the State is in a certain county, and if such 
 is the fact, that it is the county seat.^ If it is provided in a 
 public statute that cities shall be divided into wards, the 
 courts of the State will take judicial notice that they are so 
 divided ; but where the statute merely provides that they 
 may be divided into wards, courts will not presume that they 
 have been so divided. Nor will the court presume that a 
 locality having the requisite number of inhabitants to enable 
 it to Ijecome a town under the provisions of a public statute, 
 has availed itself of such provision.'' Where an act is al- 
 leged in the pleadings to have been done in a certain town, the 
 court will take judicial notice of the county in which such 
 town is situated.^ The Supreme Court of Michigan has car- 
 ried the doctrine of judicial notice to an extreme point in a 
 recent case, and held that the court is bound to take judicial 
 notice that a box freight car standing still at a railway cross- 
 ing will not frighten horses of ordinary gentleness.'' This 
 case seems to trench sharply upon the province of the jury, 
 and if its doctrine is adopted, there would seem to be little 
 use for juries in the class of cases to which it applies. Again, 
 in our judgment, the doctrine is not sustained by human ex- 
 perience ; it certainly is not by my own, and seems not to 
 have been in the case before the court. Horses are intelli- 
 gent animals. When they approach a railway track they 
 know that there is danger to them there, and if they have 
 ever seen a train of cars, they understand that it is moved by 
 some dangerous agency, and when they see a car standing 
 on a track near a crossing, they seem to expect that this 
 
 ' Russell v. Hoyt, 4 Mont. 412. contra, Clayton v. May, 67 Ga. 769. 
 
 ^ Walker v. Allen, 72 Ala. 456. See also Hoffman v. State, 12 Tex. 
 
 ^ Carson v. Dalton, 59 Tex. 500. App. 406 ; Boston v. State, 5 Tex. 
 
 * Hopkins -y. Kansas, etc., R. R. App. 383. 
 
 Co., 79 Mo. 98 ; Temple v. State, 15 « Gilbert v. Flint, etc., R. R. Co., 
 Tex. App. 304 ; 49 Am. Rep. 200. 51 Mich. 488 ; 47 Am. Rep. 592. 
 
 * State v. Reader, 60 Iowa, 527 ; 
 
 40
 
 G26 EVIDENCE. [chap. XVI. 
 
 dangerous agency is there also, and they indicate this belief 
 by their conduct. I feci sure that there arc very few people 
 accustomed to the use of spirited, but perfectly gentle horses, 
 Avhose experience would sustain the court. The courts will 
 take judicial notice of what States joined the Confederacy ;^ 
 of the result of an election on the (piestion of the removal of 
 a county seat f of the different classes of notes and bills in 
 circulation as money, at a particular time ;^ of the disturbed 
 condition of business in war times ;* of the issue and depre- 
 ciation of Confederate money f that trains run on a railroad 
 are run and controlled by the owners of the road f of au- 
 thority given to a comity to subscribe for rdilroad stock ;^ of 
 public acts regulating the speed of railroad trains f of the 
 constitution of another State, so far as the jurisdiction of its 
 courts depends thereon.^ So courts will take judicial notice 
 of the manner in which Confederate money was forced upon 
 the people of the States under the Confederate government ; ^" 
 when the Kebellion was terminated ;" of previous financial 
 depressions;^^ of the commencement and duration of the 
 terms of the circuit court, ^^ and of previous proceedings before 
 it in a case on trial,'* but not of proceedings before it in some 
 other case,^^ nor of the rules of a lower court ;'*' but they will 
 take notice of the different terms of a lower court of a county 
 or district. ^^ and of their duration.^^ Courts will not take ju- 
 dicial notice of the charter of a savings bank,'^ nor of a rail- 
 
 ' Dauthitt V. Stinson, 63 Mo. 268. » Dodge v. Coffin, 15 Kan. 277. 
 
 ^ Andrews v. Knox County, 70 *" Keppel ■». Petersburg R.R. Co., 
 
 111. 65. Cha.se's Dec. (U. S. C. C.) 167. 
 
 ' Hart V. State, 55 Ind. 599 ; " Turnei- v. Patton, 49 Ala. 406. 
 Lumpkin v. Mun-ell, 46 Tex. 51. " Ashley v. Martin, 50 Ala. 537. 
 
 * Ff)scue V. Lyon, 55 Ala. 440. " Rodgers v. State, 50 Ala. 102. 
 
 ' Simmons v. Trumbo, 9 W. Va. " State v. Bowen, 16 Kan. 475 ; 
 
 358. Bank v. Bryant, 13 Bush (Ky.), 419. 
 
 " South, etc., R. R. Co. v. Pil- '" Banks v. Burnham, 61 Mo. 76. 
 green, 62 Ala. 305 ; Evansville, etc., " Cutler v. Caruthers, 48 Cal.178. 
 R. R. Co. V. Smith, 65 Ind. 92. " Dorman v. State, 56 Ind. 454. 
 
 ' Smith?). Tallapoosa Co., 2 Woods " Spencer v. Curtis, 57 Ind. 221. 
 (U. S. C. C), 574. " Mandere v. Bonsignore, 28 La. 
 
 * Horn V. Chicago, etc., R. R. Co., An. 415. 
 38 Wis. 463.
 
 SEC. 191.] JUDICIAL EVIDENCE. 627 
 
 roud company/ unless they are iu terms made public acts. A 
 court will take judicial notice of the accuracy and genuine- 
 ness of its own record.^ A State court will not take judicial 
 notice of proceedings in a federal court, ^ nor that any person 
 is an officer, unless he is elected or appointed under some 
 public statute ;■* but it will take judicial notice of government 
 surveys of land, and also of blocks and lots in towns and 
 cities.^ So that the termini of a turnpike road laid out under 
 a statute so requiring are within a certain county, and that a 
 road running from one terminus of such turnpike to the 
 other is also within the county.^ So courts will take judicial 
 notice of the source of the title to all lands within its juris- 
 diction, where they were all derived from the same source.''' 
 
 In Indiana it is held that the courts will take judicial notice 
 that during and since the civil war the adjutant-general has 
 made records of the muster-rolls of the regiments furnished 
 the United States, and a duly certified coj^y of such a roll is 
 competent evidence of the enlistment, etc., of a volunteer, in 
 an action by him to recover a bounty ; and such copy is 
 competent, although the adjutant-general certifying it is no 
 longer in office.^ 
 
 Evidence in the record that a town has assumed to act as 
 a village corporation, in the passage of ordinances, and the 
 bringing of suit in its corporate village name, and that an 
 offense had been charged as committed within the corporate 
 limits of the " village of" A., was held sufficient to warrant 
 the court in taking judicial notice of the change by said 
 town from its original organization to that under the general 
 law, without proof that all the requirements of the statute 
 had been complied with.^ 
 
 The Supreme Court will take judicial notice of the popula- 
 tion of a county according to the last census, in determining 
 
 * Perry v. New Orleans R. R. Co., ^ Gardner v. Eberhart, 82 111. 316. 
 55 Ala. 413. * Steinmetz v. Versailles, etc., T. 
 
 " Robinson v. Brown, 82 111. 279. Co., 57 Ind. 457. 
 ^ Haber v. Klauberg-, 3 Mo. App. '' Smith v. Stevens, 82 111. 554. 
 312. ' Monroe County Comm'rs V. 
 
 * Alford V. State, 8 Tex. App. May, 67 Ind. 562. 
 
 546. 9 Doyle v. Bradford, 90 IU. 416.
 
 g28 EVIDENCE. [chap. XVI. 
 
 in which class it is placed by the constitution, in order to 
 rogiihitc the fees of the clerks of the Circuit Court.^ 
 
 AVhcrc a public act cxi)rcssly recognizes and amends a 
 private act, courts will take judicial notice of the existence 
 and duties of an office provided in the latter.^ 
 
 Judicial notice is taken of the custom of nuitual credits 
 under Avhich l)usiucss houses furnish each other's clerks, or 
 customers, Avith goods, and charge them to each other.^ 
 
 Courts do not take judicial knowledge of the local customs 
 which, under" the United States statute, entitle prior posses- 
 sors to a right to use water for mining purposes, etc.; the 
 claimant must allege and prove the custom.^ 
 
 Sec. 192. Matters of Common Experience. 
 
 Courts will take judicial notice of all matters that are a 
 l)art of tlie experience and common knowledge of the day ^^ 
 as that certain provinces are in a foreign country, and that 
 they have governments and courts, and that their courts 
 proceed according to the usual course of the common law f 
 but not when the government has not recognized such Ibr- 
 clo-n province ;'' but it will take judicial notice of the exist- 
 ence of such province, whether it has been recognized by the 
 <rovernment under whose jurisdiction it acts or not.^ So of 
 Avars in which this government is engaged, whether domestic 
 or foreign f but not of wars in which foreign countries are en- 
 <Ta<red ;^" nor of articles of war unless published under author- 
 ity of the government ;^^ of the political divisions of the country 
 and the location of States f^ where the principal rivers of the 
 State lie, what sections they traverse, and what towns or cities 
 
 » Worcester Bank v. Cheney, 94 ' Grierson v. Eyrie, 9 Ves. 347. 
 l\\ 430. * Taylor v. Barclay, 2 Sim. 213. 
 
 ' Lavalle v. People, 6 111. App. ' Dolder v. Huntingfield, 11 Ves. 
 
 1.57. 292. 
 
 « Cameron v. Blackman, 39 Mich. " Rex v. De Berenger, 3 M. & S. 
 
 108. 67. 
 
 * Lewis V. McClure, 8 Or. 273. " Rex v. Withers, 5 T. R. 442. 
 
 ' Oppenheim v. Wolf, 3 Sandf. " Piice v Page, 24 Mo. 65 ; City 
 
 Ch. (N. Y.) 571. Council of Montgomery v. M. & W. 
 
 • Lazier v. Westcott, 26 N. Y. 146 ; Plank Road Co., 31 Ala. 79. 
 Cooke V. Wilson, 37 Eng. Law & Eq. 
 
 361.
 
 SEC. 193.] JUDICIAL EVIDENCE. 629 
 
 they lie in ;^ of the geographical position of falls on public 
 navigable rivers, and whether there are or not pilots ap- 
 pointed on it ;^ that other States have constitutions, and of 
 their provisions.^ 
 
 The United States courts will take notice of the situation 
 of a port in a foreign country, and what impediments, if any, 
 exist in its entrance, and whether vessels of a certain draft 
 can enter it.* 
 
 Sec. 193. statutes and Common Law of other States. 
 
 While courts will take judicial notice of all the public 
 statutes and laws of the State, yet they will not take judicial 
 notice of the statutes or common law of another State, but 
 any person relying upon such statute or common law of 
 another State must prove them, as any other fact is proved.^ 
 
 But where an action is brought upon the judgment of 
 another State, courts will take judicial notice of the laws of 
 such State, so far as relates to the judgment.^ 
 
 In the absence of allegations or proof to the contrary, 
 courts will presume that the laws of another State or country 
 are similar to those in the State in which the action is tried, 
 and if different, the party relying upon the distinction must 
 prove whtit the law really is in the State, the benefit of whose 
 laws he invokes.''' 
 
 ' City Council of Montg-omery v. « Paine v. Schenectady Ins. Co., 
 
 M. & W. Plank Road Co., a7ite. 11 R. I. 411. But see Hobbs v. Mem- 
 
 ^ Cash V. Clarke & Co., 7 Ind. phis, etc., R. R. Co., 9 Heisk. 
 
 227. (Tenn.) 873. 
 
 ^ Butcher v. Brownsville, 2 Kan. ' Bemis v. McKenzie, 13 Fla. 553 ; 
 
 70. Taylor v. Boardman, 25 Vt. 581 ; 
 
 * The Peterhoff, Blatchford's Stokes v. Macken, 62 Barb. (N. Y.) 
 Prize Cases, 463. 145 ; Anderson v. Anderson, 23 Tex. 
 
 * Chumasero v. Gilbert, 24 111. 639 ; Folk v. Folk, id. 653 ; Carey 
 293 ; Wood et al. v. O'Connor, 28 Vt. v. R. R. Co., 5 Clarke (Iowa), 357 ; 
 776 ; Rape v. Heaton, 9 Wis. 328 ; Fellows v. Menasha, 11 Wis. 558 ; 
 Charlotte v. Choteau, 25 Mo. 465 ; Rape v. Heaton, 9 Wis. 328 ; Simms 
 Stokes V. Macken, 61 Barb. (N. Y.) v. Express Co., 38 Ga. 129 ; Hoyt v. 
 145; Heathorn v. Shepherd, 1 McNill, 13 Minn. 390; Stevens v. 
 Blackf. (Ind.) 159; Anderson v. Boomer, 9 Humph. (Tenn.) 546; 
 Anderson, 25 Tex. 637 ; Candit v. Temple v. Hager, 27 Cal. 163 ; 
 Blackwell, 4 Green (N. J.), 193; Hammond v. Inloes, 4 Md. 138; 
 Brimhall v. Van Campen, 8 Minn. Palfrey v. Portland, etc., R. R. Co., 
 13 ; Bemis -». McKenzie, 13 Fla. 553. 4 Allen (Mass.), 55.
 
 (530 EVIDENCE. [chap. XVI. 
 
 But when the laws of the State in which the tnal is had 
 recognize official acts done under tlie laws of another State, 
 the courts of the Slate recognizing such acts will take judicial 
 uotice of the laws of such other State, so far as is necessary 
 to determine the validit\' of the acts alleged to be in cou- 
 fonnitv with them.' So when the statutes of another State 
 upon a particular matter have been made the subject of a 
 judicial decision in a State, the courts of such State will take 
 judicial notice of it, and if the statute has been repealed or 
 altered, proof of such repeal or alteration must be duly made.^ 
 But the [)resumption that other States have adopted the same 
 laws does not extend to laws imposing a penalty or forfeiture.^ 
 When laws are unwritten, they may ))e proved by parol ; 
 but when written as statute laws, they must be proved by 
 the production of the laws themselves.* 
 
 When the statute of another State hsis been incorporated 
 into an act of congress, it will be recognized without other 
 proof ;^ or when the laws of one State or nation are, or ever 
 have been, operative in another, as where a State has formerly 
 wholly or in part been under the jurisdiction and laws of 
 another State, the laws then in existence need not be proved. 
 So, too, where the State has formerly been under the jurisdic- 
 tion of a foreign government. Thus, where a State has 
 formerly been under Spanish or Mexican government, the 
 courts of such States will judicially notice the laws of such 
 o-overnments in force at that time, so far as necessary in the 
 action pending before it.^ So courts will take judicial notice 
 of all public l)odies incorporated by the State,"' or of all acts 
 of incorporation made public by statute.^ 
 
 ' Cai-penter v. Dexter, 8 Wall. 8 Minn. 13 ; Woodward v. O'Connor, 
 
 (U. S.) 513. 28 Vt. 77G. 
 
 " Graham v. Williams, 21 La. " Flannigan v. Washington Ins. 
 
 Ann. .594. Co., 7 PcMin. St. SOfi ; United States 
 
 = Hull t). Augustine, 23 Wis. 383 ; v. Turner, 11 How. (U. S.) 663; 
 
 Campion v. Kille, 2 McCarter (N. United States v. Phila. & N. 0., id. 
 
 J.), 476; Cutter v. Wright, 22 N. 684. 
 
 y. 472; Billingsby v. Dean, 11 Ind. * Doe v. Eslaner, 11 Ala. 1028 ; 
 
 331. Choteau v. Pierre, 9 Mo. 3 ; Ott v. 
 
 * Taylor v. Runyan, 9 Iowa, 522; Soulard, id. 581. 
 
 Stevens v. Boomer, 9 Humph. ' Jones v. Fales, 4 Mass. 245. 
 
 (Tenn.) 546 ; Crosby v. Huston, 1 ® Russell v. Branham, 8 Blackf. 
 
 Tex. 203 ; Brimhall v. Van Campen, (Ind.) 277.
 
 SEC. 193. j JUDICIAL EVIDENCE. 631 
 
 The common law of all the States is presumed to be the 
 same, and if different, it must be proved by the evidence of 
 some person familiar with it.^ Or the court may act upon 
 its own knowledge of the law of another State, and if it errs 
 as to its knowledge thereof, the judgment will be reversed.* 
 But the United States courts are presumed to know the 
 laws of the several States, and will take judicial notice 
 thereof.^ 
 
 In the case of isolated and peculiar nations not holding 
 diplomatic relations with this country, parol evidence will 
 be received as to its laws, but such evidence will only be 
 allowed as conclusive when it is so direct and positive as to 
 leave no doubt or ambiguity.* State courts will take judicial 
 notice of all public acts of congress, and pamphlets issued 
 by government containing them may be read ;^ and of laws 
 relating specially to the State in which thet rial is had f 
 and of all treaties made with f()reig;n oovernments, and of 
 the power of the president under the same, but not whether 
 the powers under it have been exercised.' So of the survey 
 of lands in the State under acts of congress, and the dedication 
 of portions of them to certain purposes.^ Whether courts 
 will take judicial notice of acts of congress relating only to 
 the District of Columbia quere.^ And when a transac- 
 tion otherwise lawful is unlawful by reason of provisions 
 in acts of congress, the court will dismiss the action, even 
 
 ' Warner v. Lusk, 16 Mo. 102 ; mand v. Nirat, 1 C. & P. 578 ; Bird 
 
 Nuimo V. Davis, 7 Tex. 26 ; Bemis v. State, 21 Gratt. (Va.) 800 ; Adm'r 
 
 V. McKenzie, 13 Fla. 553 ; Stokes v. v. Chubb, 16 Gratt. 284 ; Wright v. 
 
 Macken, 62 Barb. (N. Y.) 145. Hawkins, '-8 Tex. 452 ; Buchanan v. 
 
 ^ State V. Delesdinier, 7 Tex. 26. Whitman, 36 Ind. 257. 
 
 ' Jasper v. Porter, 2 McLean (U. ® Papin v. Ryan, 32 Miss. 21. 
 S.), 579 ; Merrill v. Dawson, Hunt ' Dale v. Wilson, 16 Minn. 525; 
 (U. S.), 563; Jones v. Hays, 4 Mc- Carson v. Smith, 5 id. 78; Mont- 
 Lean (U. S.), 521 ; Wadsworth v. gomery v. Duley, 3 Wis. 709. 
 Spafford, 2 id. 168. * Dickenson v. Bruden, 30 111. 
 
 * Wilcox V. Phillips, Wallace, Jr. 279 ; Atwater v. Schenck, 8 Wis. 160. 
 
 (U. S.) 47. " Adm'r 17. Chubb, 16 Gratt. (Va.) 
 
 " Hammond v. Inloes, 4 Md. 138 ; 284, yes ; Wright v. Paton, 10 
 
 White V. Guirons, Minor (Ala.), 331 ; Johns. (N. Y.) 300, no. 
 Temple v. Hagar, 27 Cal. 163 ; Anon- 
 ymous, Buller's N. P. 222 ; Bur-
 
 g32 EVIDENCE. [chap. XVL 
 
 tliouo-h the point is not raised by the defense.^ So, too, 
 courts will take judicial notice of the laying out and survcy- 
 ino- of lands under acts of congress, and of the method of 
 their boundaries and descriptions ;'^ and of the geographical 
 divisions of the State when necessary to the detenniuation 
 of a question.^ Courts are bound to known the rules of the 
 Court of Chancery ;* so its own rules f but not the rules of- 
 another court f nor of a scale of fees adopted by it under 
 the provisions of a statute.'' 
 
 Nor of the rules and regulations adopted by any public 
 board or body, whether national or State, but such regulations, 
 if relied upon, must be proved.^ Nor of the rules or regu- 
 lations of any church or society.^ Nor of the custToms or 
 regulations of any particular trade. ^"^ Courts will take judicial 
 notice of the time when State and national laws go into 
 effect." So of their repeal, or any changes therein. '■* All acts 
 found among the public laws, bearing the governor's sig- 
 nature, are presumed to have been constitutionally passed.^' 
 
 All acts of the legislature are presumed to have been con- 
 stitutionally passed, and so far as extrinsic evidence is con- 
 cerned, this presinnption is conclusive.^'* 
 
 But in Illinois it is held that the contrary may be proved 
 by the production of a duly certified copy of the legislative 
 
 * Kessel V Albertis, 56 Barb. (N. ' Pilkington v. Cooke, 17 L. J. 
 Y.) 362. 141. 
 
 ' Buchanan v. Whiteman, 36 Ind. * Hensley v. Tarpey, 7 Cal. 288 ; 
 
 25 ; Atwater v. Schenck, 9 Wis. 160 ; Palmer v. Aldridge, 16 Barb. (N. 
 
 Dickenson v. Breeden, 30 111. 279. Y.) 131. 
 
 ' Hinckley v. Beckwith, 23 Wis. » Young v. Ransom, 31 Barb. (N. 
 
 328 ; Fancher v. De Montague, 1 Y.) 49. 
 
 Head. (Tenn.) 41 ; Mossman v. For- «• Dulch &Co. v. Mooney, 12 Cal. 
 
 rest, 27 Ind. 333 ; Commissioners v. 534. 
 
 Spetter, 13Ind.235;Winnepisseogee " State v. Bailey, 16 Ind. 46; 
 
 Lake Co. v. Young, 40 N. H. 420 ; Heuston v. Cincinnati, etc., R. R. 
 
 King V. Kent, 29 Ala. 542 ; Martin Co., id. 275 ; Berliner v. Waterloo, 
 
 V. Martin, 51 Me. 366 ; Gilbert v. 14 Wis. 378 ; Attorney-General v. 
 
 Moline, 19 Iowa, 319 ; Rock Island Foote, 11 id. 14. 
 
 V. Steele, 31 111. 543. " State v. O'Connor, 13 La. An. 
 
 ♦ Carter v. Pratt, 9 Md. 67. 486. 
 
 " Cherry v. Baker, 17 Md. 75; " 111. Cent. R. R. Co. v. Wren, 43 
 
 Pugh V. Robinson, 1 Tenn. 118. HI. 77 ; Bedard v. Hall, 44 id. 91. 
 
 • Scott V. Scott, 17 Md. 78 ; Van " People v. Mahany, 13 Mich. 
 Sandan v. Turner, L. J. (U. S.) 154. 481.
 
 SEC. 194.J JUDICIAL EVIDENCE. 633 
 
 jouriiiil, but not by reference to the original journal, as the 
 courts do not talie judicial notice of such journals or of their 
 genuineness.^ So courts take judicial notice of the maritime 
 law.^ Courts will not take notice of the rates of interest in 
 another country or State, nor in the absence of proof will they 
 presume that interest is allowed upon a contract, note or 
 other obligation, made in such country or State.-"* 
 
 The laws of a foreign country, or of another State, may 
 be proved by the testimony of any person who knows them, 
 whether statutory or common law, and the person by whom 
 such proof is made need not be a lawyer, but he must be 
 able to satisfy the court that he is in a position to know 
 them, d,nd the court must be satisfied that he cloes.'^ The 
 j udgments of a court of a foreign country, properly authenti- 
 cated by the clerk of the court in which they were rendered, 
 and duly certified by the secretary of State, and of the 
 governor of the province with the provincial seal, will be 
 treated as evidence.^ 
 
 Sec. 194. As to Judicial Records. 
 
 Courts will take judicial notice of their own records and 
 of their genuineness,^ and of the records in a case on trial.' 
 But they will not in one case take judicial notice of the 
 lecord in another case pending in the same court.^ Nor 
 that other suits are pending in the same court involving the 
 same questions.^ Nor of the pendency of actions in the 
 federal courts to settle the same questions.^" Nor will they take 
 judicial notice of anything outside the record. Hence when 
 the record does not show that a declaration was filed in the 
 cause, it will not be presumed that one was filecl.^^ Nor will 
 
 ' Grab v. Cushman, 45 111. 119 ; " Lazier v. Wescott, 26 N. Y. 146. 
 Coleman v. Dobbins, 9 Ind. 156. * State v. Postlethwaite, 14 Iowa, 
 
 ^ Chandler v. Graves, 2 H. Black- 446 ; State v. Schilling, id. 455. 
 stone, 606. ' Pag-gett v. Curtis, 15 La. Ann. 
 
 ^ Ingram v. Drinkard, 14 Tex. 551. 
 351 ; Cooke v. Crawford, 1 id. 9 ; * People v. De La Guerre, 24 CaL 
 
 Cavender v. Guild, 4 Cal. 250; 73. 
 Ramsay v. McCawley, 2 Tex. 189. * Lake Merud Water Co. V. 
 
 * American Life Insurance Trust Cowles, 31 Cal. 215. 
 Co. V. Rosenagle, Weekly Notes of " Vassault v. Seitz, 31 Cal. 225. 
 Cases (Penn), vol. 1, p. 419. " Dart v. Lowe, 5 Ind. 131.
 
 (J34 EVIDENCE. [CIIAP. XVI. 
 
 they take judicial notice that a nolle pros, or conviction was cu- 
 torod l)y them in an action in another county.^ 
 
 United States courts will take judicial notice that a dis- 
 charge in bankruptcy has been regularly obtained.^ Courts 
 will not take judicial notice of the genuineness of the sig- 
 natures of the parties in a cause.^ 
 
 Sec. 195. Miscellaneous Matters noticed without Proof. 
 
 Courts will not take judicial notice of the place of intersec- 
 tion of a street in a city with a railroad track •/ nor of the 
 meaninir of "CO. D." f nor that kerosene oil is a refined coal 
 oil or aK'lincd earth oil.*' But under the rule that courts will 
 take judicial notice of matters well established in the arts and 
 sciences, there seems to be no. good reason why they should 
 not judicially know what everybody else knows, that kerosene, 
 an article so extensively used, is a retined coal or earth oil. 
 But there seems to be no fixed rule upon which courts act in 
 determining these questions, but they seem to act according 
 to their peculiar caprices. Thus, in most of the States it is 
 held that courts will take judicial notice that lager beer is a 
 malt liquor and is intoxicating,"^ but in others, although they 
 take judicial notice that whiskey is intoxicating,** yet they will 
 not take judicial notice that malt liquors are,^ and yet the one 
 fact is as irenerally known and as well established as the other. 
 The United States courts take judicial notice of the character, 
 construction and use of a manuflictured article which has 
 been in use for many years, such as an ice-cream freezer, 
 etc.^" So it has been held that courts will take judicial 
 notice of the art of photography, the mechanical and chem- 
 
 > state V. Edwards, 19 Wis. 674. * Bennett v. North British, etc., 
 
 * Lathrop v. Stewart, 5 McLean Ins. Co., 8 Daly (N. Y. C. P.), 471. 
 (U. S.), 107. 'State t). Gazette, 11 R. 1.592; 
 
 3 Alderson v. Bell, 9 Cal. 315. Adler v. State, 55 Ala. 16 ; Watson 
 
 * Pennsylvania Co. v. France, 13 v. State, 55 id. 158. 
 
 111. App. 91; People v. Callahan, " Schlicht v. State, 56 Ind. 173; 
 
 23 How. (N. Y.) 58. But see Brady Carman -u. State, 18 Ind. .')4. 
 
 V. Pope, 59 Cal. 52, and quere. ' Shaw v. State, 55 In.l. 188 ; Peo- 
 
 » McNichols V. Pacific Express, 12 pie v. Hait, 24 How. Pr. (N. Y.) 289. 
 
 Mo. App. 401. But contra see *' Brown v. Piper, 91 U. S. 37. 
 State V. Intoxicating Liquors, 73 
 Me. 278.
 
 SEC. 195.] JUDICIAL EVIDENCE. 635 
 
 ical process employed, the scientific principles on which they 
 are based, and their results.^ So, too, they would doubtless 
 take judicial notice that opium, arsenic, prussic acid, etc., are 
 deadly poisons, but the knowledge of these facts is no more 
 general than that kerosene is a coal oil, or that malt liquors 
 are intoxicating. Courts will not take judicial notice of 
 facts not in themselves of judicial cognizance, as that Daniel 
 Webster does not reside in the State of New York,^ but will 
 take judicial notice that " beer " is a malt and intoxicating 
 liquor, '^ and the same is true as to " ale," * " strong beer," ^ 
 " lager beer," ^ or any species of liquors which connnon 
 experience has demonstrated are intoxicating. The courts 
 will not take judicial notice of the value of an attorney's 
 services in a case tried before it f nor what is a ftiir and 
 reasonable or usual commission on acceptances f nor of 
 the ordinary abbreviation of jjroper names.^ But, contra, 
 see where it was held that a note signed " Christ. A."" 
 Avould be treated as a note signed " Christopher A. ; '* 
 but will of ordinary abbreviation of common words, as 
 that "adm'r" stands for " administrator ; "'° but not that 
 "John Smith" and "Hon. John Smith" are the same 
 person ;'i but identity of name \^ prima fade evidence of 
 identity of person ,^^ and a certificate of birth, death or mar- 
 riage from the proper ofiice is admissible as evidence, with- 
 out proof that the person named in the certificate is the same 
 in reference to whom the certificate is to be used as evidence. 
 The identity of name \s prima facie proof of identity of per- 
 
 ' Luke V. Calhoun Co., 52 Ala. ' Pearson v. Dari-ington, 32 Ala. 
 
 115. 227. 
 
 ^ Wheeler v. Webster, 1 E. D. « Seymour v. Morrow, 11 Barb. 
 
 Smith (N. Y. C. P.), 1 ; Wilkie v. (N. Y.) 80. 
 
 Bolster, 3 id. 327. ' Weaver v. McElhenon, 13 Mo. 
 
 3 Briffitt V. State, 58 Wis. 39 ; 89 ; Stephens v. State, 11 Ga. 225 ; 
 
 46 Am. Rep. 64 ; People v. Whilock, Russell v. Martin, 15 Tex. 238. 
 
 3 Parker's Cr. (N. Y.) 9. '° Moseley's Adm'r v. Masten, 37 
 
 * Nervin v. Lader, 3 Den. (N.Y.) Ala. 216. 
 
 437. u Ellsworth v. Moore, 5 Clarke 
 
 ' Comm's V. Taylor, 21 N. Y. 173. ^j^^.^^^ 436. 
 
 « Rau V. People, 63 N.Y. 277 ; a Q^tt v. Watson, 18 Mo. 274. 
 State V. Gazette, 11 R. I. 592 ; Com. 
 v. Anthes, 12 Gray (Mass.), 29.
 
 G.'jii 
 
 EVIOKNCE. [chap. XVI. 
 
 soil, and if not so in fact, the opposite party must prove it.^ 
 lint courts outside the State in wliich a place is located will not 
 take judicial notice that it is outside the State, as that "New 
 York " isnotin the State where the trial is had f orthat "New 
 Orleans" is in the State of Louisiana ;^ or that " St. Louis" 
 is ill the State of Missouri ;* or that a note payable at "New 
 Orleans, La.," is payable in New Orleans, State of Louisiana ;^ 
 nor that " Dul)lin " is in Ireland.*' But the courts of England 
 do judicially know that " Geelong, Colony of Victoria," is a 
 place outside of England.^ Forms of attestation in other 
 States must be proved.^ Quantities of land contained in 
 certain courses and distances must be shown.^ Courts will 
 not take judicial notice that a woman past 49 years of age 
 is past child-bearing.^" Courts will not recognize a private 
 seal, whether of an officer or a private person." They will 
 take notice of the seasons, and of the time when certain 
 agricultural products mature, and when the season of har- 
 vesting arrives,^* but not of the vicissitudes incident 
 thereto.'^ So of the ordinary course of transactions of 
 human life, and whatever ought generally to be known, as 
 the peculiar nature of lotteries and how they are generally 
 carried on.^'' But this is so only when the lotteries exist 
 })y virtue of State laws. The age of a person, if material, 
 must be proved.^^ On the trial of an issue directed by a 
 court of e(piity, the judge before whom the trial is had will 
 take judicial notice of the terms of the order. ^^ So of the 
 day of the week on which a certain day of the month was ;'''' 
 that a child born two months after marriage, when the hus- 
 
 ' Hubbard v. Lees, L. R. 1 Exchq. '" Overhill's Trusts, Inre, 17 Eng. 
 
 255. Law. & Eq. 323. 
 
 » Bradshaw v. Mayfield, 18 Tex. " Beach v. Workman, 20 N. H. 
 
 21. 379; Barrett Nav. Co. v. Shower, 8 
 
 ^ Riggins V. CoUier, 6 Mo. 568. Dowl. (C. P.) 173 ; 111. Cent. R. R. 
 
 * Ellis V. Park, 8 Tex. 205. Oo. v. Johnson, 40 111. 35. 
 
 ' RusseU V. Martin, 15 Tex. 238. " Floyd v. Ricks, 14 Ark. 286. 
 
 • Kearney v. King, 1 Chit. 28. " Dixon v. Nichols, 39 111. 372. 
 
 ' Cooke V. Wilson, 1 C. B. (N. S.) " BouUemet v. State, 28 Ala. 83. 
 153. '^ Stephenson v. State, 28 Ind. 27. 
 
 ' Tiigg V. Conway, 1 Hemp. '* Wood v. Thompson, 1 C. & M. 
 (Tenn.) 538. 171. 
 
 » Tison V. Smith, 8 Tex. 147. " Hanson v. Shackleton, 4 Dowl. 
 
 (P. C.) 48.
 
 SEC. 196.] JUDICIAL EVIDENCE. 637 
 
 band had not access to the mother before marriage, is not 
 his child ;^ on what day tlie king died f of the general law 
 of bankers, and that they have a lien on the securities of 
 their customers for advances made or services rendered ;' 
 that rain falls.* Courts will not take judicial notice of what 
 is meant by the words " whaling voyage " in a policy of in- 
 surance,^ but it will of the meaning of words in certain usual 
 and common combinations.^ 
 
 Sec. 196. Rule when Statutes are relied on as Ground of Action or 
 
 Defense. 
 If a party relies upon a statute either as a ground of action 
 or defense, he must, notwithstanding the fact that it is a 
 public statute of which the court takes judicial notice, set 
 forth in his declaration, or in his pleadings, such facts as 
 bring him clearly Avithin the provisions of the statute, or if 
 in defense, where no special plea is required, show such facts 
 as bring his case within the statute, and if there are any 
 exceptions or provisos in the act, he must show negatively 
 that the matter pleaded is not within the provisos or excep- 
 tions,'' unless the proviso or exception is in a subsequent sub- 
 stantive clause or statute, and is not connected with the enact- 
 ing clause by any word of reference, in which case it is a mat- 
 ter of defense for the other party, and need not be negatived 
 in the pleadings.^ Where the enacting clause of a statute 
 makes an exception to the general provisions of the act, a 
 party pleading the provisions of the statute must negative 
 the ex*ception, but when the exception is contained in a 
 proviso, and not in the enacting clause, the party pleading 
 the statute need not negative the exception. It is for the 
 other party to set it up in avoidance of the other provisions of 
 the statute.^ A pleading setting forth the cause of action 
 
 ' Rex V. Luffe, 8 East, 202. Ins. Co., 28 N. Y. 153 ; Downs v. 
 
 ^ Henry t). Cole, 2 Ld. Raym. 811. Sprag'ue, 2 Keyes, 57. 
 
 ' Bamett v. Brandon, 6 M. & G. ' Gill v. Scrivens, 7 Durnford & 
 
 630. E. 27. 
 
 * Fay V. Prentifce, 14 L. J. (N. S.) « Rex v. Jukes, 8 D. & E. 542; 
 298. Rex v. Hall, 1 id. 320; Steele v. 
 
 * Child V. Sun Mutual Ins. Co., Smith, 1 B. & Aid. 94. 
 
 3 Sandf. (N. Y.) 26. ' Muller's Case, 4 Ct. of Claims 
 
 * Bap. Church v. Brooklyn Fire (U. S.), 61; McGlone v. Prosser, 21
 
 638 EVIDENCE. [chap. XVI. 
 
 or defense in the language of the statute relied on, is suffi- 
 cient,' and he need set forth no more facts or circumstances 
 than are necessary to support the pleading under the statute.^ 
 
 There is still another matter which should be borne in 
 mind, and, that is, that where a statute gives a remedy where 
 none existed at connnoii law, or where it makes an act law- 
 ful which is not so regarded at common law, the party must 
 state in his pleadings, and show upon the trial such a state 
 of facts as l)rings his case clearly within the provisions of the 
 statute as well as all the amendments thereto. But where 
 the statute is only declaratory of a connnon-law right, and 
 in aid thereof, unless it in some way varies the standing or 
 rights of parties in court, the statute, or any circumstances 
 bringing the party within the provisions thereof, need not 
 be stated in the pleadings, but otherwise when the statute 
 gives any rights additional to the common-law right, or varies 
 or changes the status of the i)arties.^ 
 
 In actions brought upon a general or public statute, the 
 declaration should state such facts as bring the case within 
 the statute, and should state that the act complained of is 
 contrary to the statute in such cases made and provided ;* 
 ])ut if the facts and circumstances set forth in the pleading 
 are sufficient to show that the act charged is in point of fact 
 contrary to the statute relied on, the omission of the words 
 " contrary to the form of the statute,"' will not be treated as a 
 defect.^ It is the substance, and not the form of the plead- 
 ing, that controls,^ and the statute need not be set forth or 
 named in the pleadings, as the courts are bound to take 
 judicial notice of the statute, and whether the facts set forth 
 in the pleadings are sufficient to sustain an action or defense 
 under it.' 
 
 If the action or defense is predicated upon the statute of 
 
 Wis. 273 ; Lynch v. People, 16 Mich. 280; Hastings v. Cunningham, 39 
 
 472. Cal. 137. 
 
 * Gunter v. Dale Co., 44 Ala. 639. •• Lee v. Clarke, 2 East, 332. 
 
 * Hewitt V. Harvey, 46 Mo. 368. * Hewett v. Harvey, 46 Mo. 368. 
 ' Note 2 to Dupa v. Mayo, 1 Wm. « State v. Dehlinger, 46 Mo. 106. 
 
 Saunders, 276 ; ErlingeruBouceau, '' McHarry v. Eastman, 7 Rob. 
 
 51 lU. 94 ; Ryan v. State, 32 Tex. (N. Y.) 137.
 
 SEC. 196.] JUDICIAL EVIDENCE. 639 
 
 another State, the statute relied upon must be set forth with 
 distinctness, so that the court can say upon inspection of the 
 plea what the eflect of the law is, and a pleading that simply 
 avers that by the laws of the State where the contract was 
 made, certain results would ensue, is not an averment sufficient 
 to support any proof as to what the fact is.^ 
 
 In all actions brought upon a private statute, the act must 
 be recited, and such facts stated as disclose a right of action 
 inider it, and no more of the act will be noticed by the court 
 than is set forth in the declaration ; and the same is equally 
 true as to the pleadings where the statute is relied upon in 
 defense to an action.^ 
 
 In all cases where the statute is set forth either in the 
 declaration or pleadings, great care should be observed to 
 set it forth correctly, as in the case of a misrecilal of a 
 general statute advantage may be taken of it either by general 
 demurrer, motion in arrest, or l)y writ of error, if the erroris 
 in any wise material, and the defect is not cured by verdict. 
 But it seems that the misrecital must be of matter which 
 goes to the ground of the action, or the defect will be cured 
 by verdict.^ 
 
 Ill the case of a material misrecital of a public act, the 
 court cannot give judgment even with the consent of the 
 parties, for the reason that the courts are bound to take 
 notice of allpublic acts, and to know that the statute is not 
 as set forth in the pleadings.* 
 
 So, too, care should be taken never to recite a public statute 
 when its recital is unnecessary, for if it is recited, and in- 
 correctly set forth, the misrecital is fatal if in a material 
 matter f for if a party undertakes to set forth a statute in 
 his pleading, a misrecital is fatal. 
 
 * Hoyt V. McNeil, 13 Minn. 390 ; See also State v. Jarrett, 17 Mo. 
 Roots V. Merriweather, 8 Bush 309, where it was held that where a 
 (Ky.), 397. bill in equity contradicts the pro- 
 
 * Kirk V. Nowell, 1 D. & E. 125 ; visions of a public statute, the court 
 Hewett V. Harvey, 46 Mo. 106 ; will take judicial notice thereof, al- 
 Gunter -w. Dale Co., 44 Mo. 639. though the question is not raised 
 
 ^ Rex V. Marsack, 6 D. & E. 776. upon trial. 
 
 * Love v. "Walton, Cro. Eliz. 245. * Boyce v. Whittaker, Doug. 97.
 
 640 EVIDENCE. [chap. XVI. 
 
 But if the misrecital is immaterial or only a trifling variance, 
 the rule is othervvi&e,' as if a party refers to the wrong 
 section of a public act in his pleading, which is evidently a 
 clerical error, it is wholly innnaterial, as the court is Ijound 
 to take judicial notice of the statutes, and hence is bound 
 to know whether the facts set forth are a ground of action 
 or defense undef any jjart of the statute; l)ut if tlie party re- 
 cites the portion of the statute in his plea, the rule would be 
 otherwise.^ 
 
 In all cases where the action or defense is predicated upon 
 a private act, so much of the act as is relied on must );c ac- 
 curately set forth in the pleadings, and it is generally better to 
 set it forth in lime verba, and if there is a misrecital of the 
 act, advantage must be taken of it by pleading nul tiel record, 
 or by demurrer, as the court can take judicial notice of no 
 more of the act than is recited in the i)leadings.^ Nul tiel 
 record should not be pleaded when the defect is in reference 
 to such matters as the court judicially notices, but only of 
 such defects as go to the matter or substance of the act : all 
 other defects should be taken advantage of by demurrer.^ 
 
 Public acts need not be proved, as the courts are bound 
 to know their provisions ; but if nul tiel record be pleaded 
 private acts nmst be proved by an exemplified copy of the, 
 act,* or by the production of a printed copy theieof, printed 
 by the State printer/' When a private act is duly certified 
 under the seal of the State, it cannot be impeached by the 
 legislative jom-nals.''' And it is not competent for the court 
 in an ordinary civil suit inter partes to permit any inquiry 
 to be made into the correctness of the Revised Statutes duly 
 certified and deposited in the office of the secretary of State, 
 and that such statutes, so certified, import absolute verity, as 
 the records of the legislature.® 
 
 * Goodwin v. West, Cro. Car. 522 ; Moulson v. Redshaw, 1 Saund. 193, 
 Anonymous, 2 Venti-is, 215. where the jiractice in reference to 
 
 ' McHarvy v. Eastman, 7 Robt. pleading private acts is thoroughly 
 
 (N. Y.) 137. discussed. 
 
 » Spring V. Eve, 2 Mod. 241 ; Piatt ' Anonymous, 2 Salk. 566. 
 V. Hill, 1 T/1. R.aymond, :382. <= Rex v. Shaw, 12 East, 497. 
 
 * Rex i: Wilde, 1 Lev. 296 ; Boyce ' Rex v. Arundel, Hob. 110. 
 V. Whittaker, Doug. 97. See also * Eld v. Gorham, 20 Conn. 8.
 
 SEC. 196. j JUDICIAL EVIDENCE. G41 
 
 Public acts, being general laws, are presumed to be known 
 to every person, as well to the jury as to the court, and need 
 not be proved ; but private acts must be proved by a duly 
 exemplified copy,i or by a copy printed by the king's printer 
 and under authority.^ And this extends to laws of a foreign 
 country when they are found in the statutes of that country, 
 accompanied with proof of their official publication f and 
 the laws of another State.* But the book must be authenti- 
 cated under the seal of the secretary of State. ^ 
 
 ' 1 Phillips on Ev. 364 ; 1 Starkie ' Zimmennan v. Helsler, 32 Md. 
 on Ev. 163. 274. 
 
 * Rex V. Shaw, 12 East, 479. * Babcockv. Babcock, 46 Mo. 243. 
 
 ' O'Keefe v. United States, 5 a. 
 of Claims, 674. 
 
 41
 
 CHAPTER XVII. 
 
 BURDEN OF PROOF. 
 
 SECTION. 
 
 197. General Objects of Evidence. 
 
 198. Frauds. 
 
 199. Exceptions to Rule. 
 
 200. Presumption of Innocence. 
 
 201. Burden in Case of Lost Notes. 
 
 202. Who is to Begin. 
 
 203. "Who Begins in action to Recover Lands. 
 
 204. Right to Reply. 
 
 Sec. 197. General Object of Evidence. 
 
 The object of evidence is to estal)lish the issues between 
 the parties, unci to this end three general rules must be ob- 
 served : 1st, tJie evid'iucQ must he confined to the issue ; 2d, only 
 the substance of the issue need be proved, and 3d, that tJie bur- 
 den of jivoof lies upon the party asserting an affirmative fact, 
 unless it is supported by some adequate presumption.^ This 
 nnist, however, be understood as applymg to a material and 
 substantial issue, and is a rule which rests upon the broad 
 ground of protection to the rights of parties, and has for its 
 base that sound public policy which courts ever regard with 
 strict exactness. Mere convenience either of parties or 
 courts is not generally allowed to weigh against actual 
 rischts, and the better reason for the rule would seem to be, 
 that when a person, by an allegation in his declaration or 
 plea, asserts that which, if true, shows a legal right in him 
 to recover damages of another, or which shows a legal and 
 valid excuse against an apparent legal claim, public policy 
 
 ' Pussey V. Wright, 31 Penn. St. v. Colmes, 2 Miss. 121 ; Thompson 
 
 387 ; Costigan v. Mohawk, etc., R. v. Lee. 8 Cal. 275 ; Nash v. Hall, 4 
 
 R. Co., 2 Den. (N Y.) 609 ; Powers Ind. 444 ; Stevenson v. Maroney, 29 
 
 V. Russell, 13 Pick. (Mass.) 69 ; Kyle 111. 582.
 
 SEC. 197.] BURDEN OF PROOF. 643 
 
 and the protection of the rights of parties require that 
 the party making such an allegation should take the burden 
 of its support, otherwise the rights of parties would be in 
 constant jeopardy by their being compelled to disprove 
 issues without foundation or validity. It is true that there 
 is said to be a distinction between the burden of proof and 
 the weight of evidence ; but this distinction is often theo- 
 retical rather than practical, and involves so much nicety 
 in its adjustment and determination as to be of compara- 
 tively little value in the protection of the rights of parties. 
 The burden of proof generally rests constantly upon the 
 party upon whom it rests in the first instance, but the weight 
 of evidence is said to depend upon its value and apparent 
 strength in proving or disproving the issue. In fact, the 
 two are so closely and intimately blended, that the distinc- 
 tion is not easily seen. A party having the burden of proof 
 does not maintain the issue, except the proof be such, and 
 its strength and value of that character, which convinces a 
 court or jury of his right to recover. Failing in that, the 
 task he took upon himself has not been performed, and the 
 opposite party is entitled to a verdict. It is true that courts 
 in their discretion will sometimes set aside verdicts as being 
 against the weight of evidence, but all reasonable intend- 
 ments are to be made in support of the verdict, and it is 
 only in cases where the verdict is so apparently opposed to 
 the weight of evidence as not to be in any sense fairly sup- 
 ported by it that any relief can be had ; so that strictly the 
 artificial distinction between the burden of proof and weight 
 of the evidence is generally of but little practical value, and, 
 in fact, it may be said that really there is no distinction. It 
 is difficult to understand how such a distinction can exist in 
 view of the fact that the party who takes the burden of 
 proof is bound to maintain the issue by a fair preponderance 
 of proof, and this certainly means that the weight of evidence 
 shall be with him. Indeed, it is a well-settled rule of law 
 that in a case where the testimony is so evenly balanced as 
 not to admit of a conclusion being drawn from it, the verdict 
 must be against the party upon whom the burden of proving 
 the issue rests.
 
 644 EVIDENCE. [chap. XVII. 
 
 The real test by which to determine upon whom the bur- 
 den of pioof lies is to be found by ascertaining which party 
 would be entitled to a verdict if no proof was offered on 
 either side, for the burden lies upon him against whom the 
 verdict should be given in such a case :' and Avhen the bur- 
 den lies ui)on a party, he is bound to prove each and every 
 circumstance essential to charge the other party in the same 
 manner as if the whole issue rested upon him, whether plain- 
 till* or defendant f and the issue must be supported by him 
 by a fair balance of evidence, so that a conclusion can fairly 
 be drawn in his favor by the jury, or the verdict must be for 
 the other party. 
 
 If the burden of i)roof lies upon the plaintitf or defendant, 
 it cannot b(! changed and thrown upon another by the form 
 of pleading.^ Indeed, it is never the /o?'m, but the substan- 
 tive allegations, of the pleadings that determine the burden 
 of proof,^ and while in civil actions the burden of proof may 
 be shifted in certain cases, yet in criminal cases this never 
 occurs except when the respondent attempts to justify his 
 crime.^ 
 
 As illustrative of the rule, if A. sues B. in an action for 
 personal injuries received by him by reason of some act neg- 
 ligently done by B., the burden is upon A. to prove all the 
 facts essential to show that B. was really guilty of negligence 
 as charged by A. in his declaration ; and B. is not required 
 to put in negative proof nnless these facts are legally estab- 
 lished, that is, esta])lished by full proof of negligence, such as 
 would render him liable for the results charged. When the 
 proof of A. is all hi, in those States in which a nonsuit is 
 permissible without the consent of the parties, the remedy is 
 to move for a nonsuit on the ground that the evidence fails 
 to support the declaration ; but in those States where the 
 courts, by statute, are not permitted to nonsuit the plaintiff, 
 
 ' Veiths V. Ha^ge. 8 Iowa, 163 ; ' State v. Melton, 3 Mo. 417. 
 
 Kent V. White, 27 Ind. 390 ; Ford v. * Loring v. Steinman, 1 Met. 
 
 Simmons, 13 La. Ann. 397. (Mass.) 204. 
 
 " Spaulding- v. Harvey, 7 Ind. ^ Com. v. Dana, 2 Met. (Mass.) 
 
 429 ; Henderson v. State, 14 Texas, 329 ; Com. v. KimbaU, 24 Pick. 
 
 403 ; Brandon v. Cabiness, 10 Ala. (Mass.) 336. 
 155.
 
 SEC. 197.J BURDEN OF PROOF. 645 
 
 the remedy should be sought by moviug for a verdict lor 
 the defeudant upon the ground that the evidence is not sufS- 
 cient to sustain the declaration. In a Massachusetts case/ 
 the court expressly held that it was incumbent upon him 
 who takes the affirmative of an issue, whether under a decla- 
 ration or plea, to maintain the issue raised by him by compe- 
 tent proof ; and where the burden lies upon one party of 
 l^roving an issue, he cannot change it or throw it upon the 
 other party by any system of pleading.^ Thus, in an action 
 for the non-performance of a contract, the burden is upon 
 the plaintiff to prove the non-performance by full proof, and 
 failing in that, the defendant is entitled to a verdict.'' So 
 where a breach of the performance of a contract is alleged 
 by a declaration or plea, the party setting it up is charged 
 with the burden of proving it.* 
 
 A defendant setting u[) matter in mitigation of damages, 
 takes the burden of establishing fully the mitigating circum- 
 stances relied on f so where matter in justification is plead,® 
 or matter in avoidance,''^ or in bar. 
 
 Where a defendant, in an action on a promissory note by 
 an indorser, denies that the note has been indorsed to the 
 plaintiff before maturity, and therefore claims the benefit 
 of any equities attaching in his favor against the payee, he 
 takes the burden of proving the allegation, and the plaintiff 
 is not bound to show when the indorsement was in fact made, 
 the law, in the absence of proof, presuming that it was made 
 before maturity.^ The same is also true when the defendant 
 sets up in his plea that the payee of the note is not the 
 owner of the same, but has indorsed it to another who is the 
 real owner f so where want of consideration is alleofed, the 
 burden rests upon the defendant to esta))lish it, the law pre- 
 
 ' Loring v. Steinman, 1 Met. '' Gray v. Gardner, 17 Mass. 188 ; 
 
 (Mass.) 204. Brown v. Woodbury, 5 Ind. 254 ; 
 
 ^ State V. Melton, 8 Mo. 417. Attleborough v. Middleborough, 10 
 
 ' McGregory v. Prescott, 5 Cush. Pick. (Mass.) 378 ; Jewett v. Davis, 
 
 (Mass.) 67. 6 N. H. 518. 
 
 " Edmonds v. Edmonds, 1 Ala. « Hopkins v. Kent, 17 Md. 113 ; 
 
 401- Davis V. Bartlett, 12 Ohio St. 534. 
 
 ' Murrell v. Whiting, 32 Ala. 54. » Vanbuskirk v. Levy, 3 Met. 
 
 ' Winans v. Winans, 19 N. J. 220. (Ky.) 133.
 
 64(3 
 
 EVIDENCE. 
 
 [( H.Vr. XVII. 
 
 suiniiiir, wliorc ;i oonsidenitit)!! is exprctjsed therein, that it 
 Willi ijfiveii for ;i full and valid consideration, until the con- 
 trarv is i>roved ;^ so where the consideration is claimed to 
 I)e illegal* or usurious ;'* and this must he hy strict })roof, 
 and evidence is not admissihle to prove that the party mak- 
 ing the loan is a usurer ;* so where a note is sued upon, pur- 
 porting to be signed hy an agent, the burden of proof is on 
 the defendant to show wunt of authority.^ 
 
 When the holder of a note seeks to avoid want of i)rotest 
 and notice to the indorser, the burden is on him to establish 
 the waiver of notice or other legal excuse or a promise to 
 pay with full knowledge of his non-liability f so the burden 
 of establishing payment of a note or ijcrformance of an ad- 
 mitted contract is on the defendant.'' 
 
 An alteration in a note, mortgage or other written contract 
 or evidence of indel)tedness nuist be explained by the pei-son 
 l>enetited by the alteration, as the law presumes, in the absence 
 of proof to the contrary, that the original contract without 
 alteration expresses the real intention of the parties.^ 
 
 If a party sets up matter in avoidance^ or justification, '^ or 
 special matters in defense, the burden rests upon him to 
 establish the facts requisite to support his plea,'^ as want of 
 
 • Gilbert v. Duncan, 29 N. J. L. 
 521 ; Quimby v. Morrill, 47 Me. 470 ; 
 Thomas v. Quick, 5 Blackf. (Ind.) 
 334 ; Towsey v. Shook, 3 id. 267. 
 
 * Brig-ham v. Potter, 14 Gray 
 
 Edmonds v. Edmonds, 1 Ala. 401 ; 
 Irwin V. Gernon, 18 La. Ann. 228 ; 
 McLendon v. Hamblin, 34 Ala. 46 ; 
 Buzzell V. Snell, 2.') N. H. 474. 
 •* Van Horn v. Bell, 11 Iowa, 465 ; 
 
 (Mass.), 522; Trustees v. Hill, 12 Hill v. Cooley, 46 Pcnn. St. 256; 
 
 Iowa, 462 ; Solomon v. Dreschler, 4 Smith v. United States, 2 "Wall. (U. 
 
 Minn. 278 ; Dykers ?). Townsend, 24 S.) 219. 
 
 N. Y. 57 ; Craig v Proctor, 6 R. I. « Brown v. Woodbury, 5 Ind. 254 ; 
 
 547; Kidder w.Norris, 18 N.H. 532. Attleborough v. Middleborough, 10 
 
 ' Ives V. Farmers' Bank, 2 Allen Pick. (Mass.) 378 ; Gray v. Gardner, 
 
 (Mass.), 236; Engler v. Ellis, 16 17 Mass. 188. 
 
 1 
 
 Ind. 475 ; Hale v. Hazleton, 21 Wis. 
 320. 
 
 * Jackson i\ Smith, 7 Cow. (N. 
 Y.) 717. 
 
 ^ Thompson v. Abbott, 11 Iowa, 
 193. 
 
 * Ballin v. Betske, 11 Iowa, 204. 
 
 '" Winans V. Winans, 19 N. J. Eq. 
 220 ; Ti-eadwell v. Joseph, 1 Sum. 
 (U. S.) 390. 
 
 " Great Western R. R. Co. V. 
 Bacon, 30 111. 347 ; Vail v. McKernan, 
 21 Ind. 421 ; Pack v. Chapman, 16 
 La. An. 397 ; The Short Staple, 1 
 
 ' Caulfieldi). Sanders, 17 Cal. 469; Gall. (U. S.) 104; The Argo, 1 id. 
 McKinney v. Slack. 15 N. J. L. 220 ; 150.
 
 SEC. 197.] BURDEN OF TROOF. 647 
 
 consideration where a consideration is expressed in or implied 
 from the contract/ usury^ and other similar defenses. But 
 the rule is otherwise as to pleas of the Statute of Frauds, lim- 
 itations and defenses of that character,^ and the plaintiff is 
 bound to show facts which avoid the effect of the plea. 
 
 It may be said that in all cases the onus probandi rests 
 upon the party who is obliged to free himself from liability 
 by proving a fact, when the knowledge of that fact is sup- 
 posed to be more within his reach than that of his adversary.* 
 Where a party is seeking a recover}^ upon the ground that 
 the defendant did not discharge a statutory duty, the burden 
 is upon him to show that such duty was not discharged. 
 Thus, where a statute provides that a railway company 
 is required to ring the bell or blow the whistle of the 
 locomotive within a certain distance of a highway crossing, a 
 party seeking a recovery for an injury at a crossing upon 
 the ground that this duty was not discharged, must show 
 that neither the whistle was blown nor the bell rung as re- 
 quired by the statute ; and if it is only shown that the 
 whistle was not blown, no recovery can be had, because the 
 company had its election to blow the whistle or ring the 
 bell, and in the absence of proof to the contrary, if it is only 
 shown that the whistle was not blown, it Avill be presumed 
 that the bell was rung.^ 
 
 In assumpsit, account or actions of book account to recover 
 a balance due upon accounts, the burden rests upon the 
 plaintiff to establish the accuracy of his accounts, and the 
 fact that the articles charged were delivered to the defend- 
 ant. In some of the States, the books of account are held 
 to he prima facie evidence of the sale, delivery, etc., but in 
 others, if the person making the charge is still living, he 
 must be produced as a witness, or the fact of delivery estab- 
 lished by other evidence.^ In the case of merchants' accounts, 
 
 ' Pack V. Chapman, 16 La. An. ° Cathcart v. Hannibal, etc., R. 
 
 366. R. Co. (Mo. S. C, 1885), 11 West- 
 
 « Hale V. Haselton, 21 Wis. 820. ern Rep. 401. 
 
 ^ Taylor v. Spears, 6 Ark. 381. " See ante, p. 
 
 * Forde v. Simmons, 13 La. An. 
 397.
 
 648 EVIDENCE. [CIIAP, XVH. 
 
 if a statement has been sent to the defendant, and he did not 
 object thereto within a reasonable time, it is presumed to be 
 correct ;^ and such also is held to be the rule as to accounts 
 current, or accounts in the ordinary course of business.* If 
 accounts have been settled and a balance agreed upon, if a 
 mistake is claimed to have been made, the burden of proof 
 is on the party seeking to open the account f but Avhen 
 a party claims that accounts have been liquidated, the 
 l)urden is u})on him to establish it. Thus where to a 
 plea of the Statute of Limitations the plaintiff replied that 
 the accounts were merchants' accounts, and the defendant re- 
 joined that the accounts were not open and curient, but 
 were liquidated more than six years before the action was 
 brou<dit, the plaintiff traversed this plea. It was held that 
 the burden of proof was upon the defendant to show that 
 the accounts were liquidated and closed. ** 
 
 If a party seeks to recover of another u[)on a contract 
 made by another in his name as agent, the burden is upon 
 him to establish the agency. Thus where a person sold 
 goods to another whom he alleged to be the agent of a quar- 
 termaster, and the allegation was traversed, it was held that 
 the burden was u[)on the plaintiff not only to establish the 
 agency, but also the ai)pointment of the quartermaster.^ The 
 fact of agency may be established hy proof that a cer- 
 tain person acted as such for the defendant with the defend- 
 ant's knowledge, or under such circumstances that he may 
 be presumed to have known of it.^ But where the defense 
 to an action is that the contract wiis made by the defendant 
 as agent, the burden is upon him not only to establish that 
 fact, but also that he was, iu fact, agent for the person against 
 
 ' Bainhridge v. Wilcocka, Bald. Missouri, 15 Mo. 143 ; Freeland v. 
 
 (U. S. C. C.) 536 ; White v. Mason, Heron, 7 Cranch, 147. 
 
 3 Cranch (U. S. C. C), 250 ; Hop- ' Mills v. Johnston, 23 Tex. 308. 
 
 kirk V. Page, 2 Brook. (U. S. C. C.) * M'Lellan v. Crofton, 6 Me. 308. 
 
 20 ; Barry v. Barry, 3 Cranch (U. * Calkins v. United States, 1 Ct. 
 
 S. C. C), 120; Wig-gins v. Burk- of CI. 382. See also Beals V. Mer- 
 
 ham. 10 Wall. (U. S.) 129. riam, 11 Met. (Mass.) 470. 
 
 " Webbe v. Chambers, 3 Ii-ed. " State v. Foster, 23 N. H. 348. 
 (N. C.) L. 374 ; Sheppard v. Bank of
 
 SEC. 197.] BURDEN OF PROOF. 649 
 
 whom he claims the liabiUty exists, and that he had full 
 authority to make the contract for him.^ 
 
 Where an original entry of an account was altered, it was 
 held that the alteration must l)e explained or it would be 
 presumed to be in accordance with the facts at the time of 
 entry f but if the alteration is not apparent, the person 
 claiming the benefit of it must prove it fully ;^ so where a 
 mortgage was altered, it was held in the absence of proof to 
 the contrary that the burden was on the mortgagee to explain 
 the alteration, and that in the absence of proof to show that 
 the alteration was in accordance with the contract, it would 
 be presumed that the contract was as it existed before the 
 alteration was made ;* and as to whether a material alteration 
 requiring explanation has really been made since the delivery 
 of the contract, the court may determine.^ Where an official 
 document, which has always remained in the custody of the 
 officer entitled to its charge, is altered, it will be presumed, 
 until the contrary appears, that the alteration was rightly 
 made.^ Where, previous to the inspection by the jury of a 
 locality where a crime has been committed, a change has been 
 made, it is incumbent upon the prosecution to show that the 
 change does not injuriously aflect the respondent.^ When a 
 party who has formerly resided for a long time in one locality 
 goes to reside in another for such a time as raises a reasonable 
 presumption of actual residence, the burden is upon him to 
 show that his domicile is still at the place in which he has 
 formerly resided.^ 
 
 Where a lien has once attached in favor of a vendor, it is 
 incumbent upon a purchaser who claims that the lien has 
 been quieted or lost to maintain the fact.^ When a person 
 
 ' Oawter 'o. Baker.. 23 Ind. 63 ; ' Devoy n. New York, 35 Barb. 
 
 Wheeler v. Reed, 36 111. 81. (N. Y.) 264. 
 
 " Shiels n. West, 17 Cal. 324. ' State v. Knapp, 45 N. H. 148. 
 
 ' Davis V. Jenny, 1 Met. (Mass.) * Atler v. Waddell, 20 La. Ann. 
 
 221. 246. See Hart v. Horn, 4 Kan. 232, 
 
 * Van Horn n. Bell, 11 Iowa, 465. where it is held that/aci and intent 
 
 * Wood t). Steel, 6 Wall. (U. S.) 80; must concur to work a change of 
 Ives v. Farmers' Bank, 2 Allen domicile. See also Clarke v. Terri- 
 <Mass.), 236. tory, 1 Wash. Ter. 82. 
 
 * Hays V. Horine, 12 Iowa, 61.
 
 650 EVIDENCE. [chap. XVII. 
 
 seeks to recover of a carrier for injuries received by his or 
 its neglect, the hiw presumes that he was a passenger for 
 hire, and the burden of establishing the contraiy is on the 
 carrier;' so in an action against a carrier of goods it is not 
 incumbent on the plaintiff to show negligence on the part of 
 the carrier, but the burden is on the carrier to show that the 
 goods were not delivered by reason of the intervention of a 
 legal excuse.^ The rule is that it is only incumbent upon the 
 plaintiff to show a delivery of the goods to the carrier and 
 their loss, or if the claim is for damages done to them, the 
 fact that they are damaged and the amount of the injury, 
 and the onus is then imposed upon the carrier of showing 
 that the loss or damage resulted from some of the perils 
 from which they are exempted imder their contract of ship- 
 ment f l)ut in actions against common carriers of passengers, 
 the mere fact that a passenger was injured while on his 
 journey is not sufficient to throw the onu.H of proving due 
 care on the carrier. The Ijurden is on the party injured to 
 make out that degree of negligence and want of care on the 
 part of the carrier essential to charge him with liability, and 
 he carniot rest his case until such proof is made ; as, failing 
 in that, the carrier is entitled to a verdict without the intro- 
 duction of anj- proof whatever.^ 
 
 Sec. 198. Fraud. 
 
 In all cases where fraud is charged as substantive matter, 
 whether in a declaration or plea, the party alleging it must 
 make it out by a clear preponderance of evidence.^ Thus 
 where fraud is charged in the administration of a trust, the 
 party relying upon it takes the burden of cstal)lishing the 
 fraud, and the evidence must be such as to overcome the 
 
 ' Buffit 7). Troy, etc., R. R. Co., Tarbox v. Eastern Steamboat Co., 
 
 36 Barb. (N. Y.) 420. 50 Me. 339. 
 
 " Tarbox v. Eastern Steamboat * Mitchell v. Western, etc., Rail- 
 Co., 50 Me. 339. road Co., 30 Ga. 22. 
 
 ^ Shaw V. Gardner, 12 Gray " Beatty ^. Fischel, 100 Mass. 448 ; 
 
 (Mass.), 488 ; Steamer Niagara v. Kline v. Horine, 47 111. 430; Hager 
 
 Cordes, 21 How. (U. 8.) 70; 111. R. v. Thomson, 1 Black (U. S.), 80; 
 
 R. Co. X). Cowles, 32 111. 116 ; Hum- Oaks v. Harrison, 24 Iowa, 179 ; 
 
 phreys t). Switzer, 11 La. Ann. 320; Winslow v. Gilbert, 50 Me. 90; 
 
 Blaisdell v. Cowell, 15 Me. 370.
 
 SEC. 198.] BURDEN OF PROOF. 651 
 
 presumption of a correct administration of the trust which 
 the law raises in favor of the trustee ;^ so, too, where fraud 
 is charged in a contract, all the elements necessary to estab- 
 lish the fraud must be made out by the party allegino- it f 
 as where false representations in the sale of property are 
 relied on, it must not only be proved that the representa- 
 tions were false, but that they were made with a fraudulent 
 intent and in respect to a material matter f mere expressions 
 of opinion by the vendor of property, real or personal, 
 whether relating to its quality or quantity, even though such 
 representations are erroneous and untrue, are not sufficient 
 in the absence of improper motive to establish fraud either 
 in support of an action at law or for relief in equity. The 
 representations, in order to be actionable or relievable in 
 equity, must have been in reference to a substantive matter, 
 must have been relied on by the purchaser and made under 
 such circumstances as to show a fraudulent purpose on the 
 part of the vendor, and the burden of establishing all these 
 facts is upon him who would avail himself of them ;* as that 
 the facts claimed to be false were peculiarly within the 
 vendor's knowledge f or that he made the representations 
 as matter of knowledge and not of belief, the fraud consist- 
 ing in setting up his mere belief as knowledge f so in an 
 action where the material question is, whether a party selling 
 property with ceitain defects under such circumstances that 
 fraud is predicted of the act, it is incumbent on the party 
 alleging the fraud to prove that the other did not disclose 
 the defects -^ and indeed in all cases where the presumptions 
 are with the defendant, the burden is on the plaintiff to fully 
 
 ' Bibb V- Pope, 43 Ala. 190. ' Sinerking- 1?. Litzler, 31 Ind. 13 ; 
 
 "" Smith U.Webb, 64 N. C. 541. Paddock v. Fletcher, 42 Vt 389; 
 
 ^ Taylor ?). Sco\alle, 54 Barb. (N. Morgan v. Skidmore, 55 Barb. (N. 
 
 Y.)34. Y.) 263; Bradbury v. Bordin, 35 
 
 * Moore v. Barre, 11 Iowa, 198; Conn. 577; Fackler -u. Ford, McMa- 
 
 Drake v. Latham, 50 111. 270 ; Curry hon (Kan.), 21. 
 
 •p. Keyser, 80 Ind. 214 ; Putney v. " Cabot v. Christie, 42 Vt. 121 ; 
 
 Handy, 99 Mass. 5 ; Wheeler v. Ran- Paddock v. Fletcher, id. 389. 
 
 dall, 48 111. 182 ; Marshall v. Gi-ay, ' Flemming v. Slocum, 18 Johns,, 
 
 39 How. Pr. (N. Y.) 172; Hag-ee v. (N. Y.) 403„ 
 Grossman, 31 Ind. 223.
 
 (552 EVIDENCE. [chap. XVII. 
 
 overcome them. Thus, in all ciiscs where fnuul is {illogcd 
 and relied on, the oiim is on the plaintill" to prove it fully 
 and l)y strict proof, even though it involves negative proof, 
 because fraud is never presumed, but rather the opposite ;^ 
 so where an action is brought for official misconduct or ueg- 
 lect, the presumption l)eing that all officers discharge their 
 duty, it is incumbent on the plaintiff to overcome this pre- 
 sumption by full proof and to take the burden of proof, 
 whether the issue is affirmative or negative ; as where a 
 sheritf is charged with neglect in the service of process^ or 
 in the levy of an execution, it is always incumbent on the 
 plaintiff to establish the neglect by showing tliat the officer 
 did not discharge his duty ;•' and so in a multitude of instances 
 too numerous for special mention here, and, indeed, in all 
 instances where the right of action or the validity of the defense 
 depends upon proving that a certain act was not done, the 
 party alleging it, whether plaintiff or defendant, takes the 
 onus of proof. As illustrative of this, where a levy of an 
 execution is sought to be avoided upon the ground that the 
 sheriff has failed to give the notice required l)y law, the law 
 raising a presumption in favor of the sherilfthnt he has per- 
 formed his duty in a legal manner, the burden is upon the 
 party attacking the levy, not only to overcome this [)resump- 
 tion by strict proof, but to overcome l)y a fair preponder- 
 ance of evidence all proof interposed tending to establish 
 the presumption and to show that the notice was not given :* 
 so in settlement cases where a i)auper is sought to be charged 
 upon another town or county, it is always incumbent upon 
 the town or county seeking to charge the other with the 
 pauper's support to show that the pauper has no settlement 
 in it f so in actions for malicious prosecutions, want of 
 probable cause must be fully made out by the plaintiff;^ so 
 
 » Norris' Peake on Ev., p. 7. Y.) 345 ; Topper v. Taylor, 6 S. & 
 
 » Buler V. Bullitt, 3 Marsh. (Ky.) R. (Penn.) 173. 
 
 280. * Wilmington v. Burlington, 4 
 
 " Davis V. Johnson, 3 Munf. (Va.) Pick. (Mass.) 174. 
 
 81 . ® Lane v. Crombie, 12 Pick. (Mass. ) 
 
 * Hartwell v. Root, 19 Johns. (N. 177 ; Purcell v, McNamara, 9 East, 
 
 361.
 
 SEC. 19a] BURDEN OF PROOF. 653 
 
 ill criminal proceedings, Avhile the burden is upon the State 
 of establishing not only affirmative, but also negative mat- 
 ter, such as the absence of provocation, or that the act was 
 not done in self-defense, in trials for murder ; yet, as to all 
 matters not connected with the body of the offense charged, 
 and which are in defense purely, the burden is on the re- 
 spondent. In a Vermont case,^ the court very ably dis- 
 cussed the rule applicable to trials for murder as to the bur- 
 den of proof in cases where there were any really excul- 
 patory circumstances, and held that in all such cases the 
 burden is upon the State to make out all the elements neces- 
 sary to establish the principal offense, even to the extent of 
 overcoming the force of such exculpatory circumstances.^ 
 
 The presumption of innocence must be fully overcome by 
 the prosecution in all criminal cases.^ 
 
 Sec. 199. Exceptions to Rule. 
 
 The party holding the affirmative of the issue, as a general 
 rule, takes the onus of proof, but there are numerous excep- 
 tions to this rule, and it may be stated as a general proposi- 
 tion that in all instances where the right of action depends 
 ■upon a negative averment, the party making it is charged with 
 the burden of proving it. This is in ol)edience to the rule 
 that the burden of proof is upon him who raises an issue 
 which would be defeated if no proof was offered.'* The rule 
 operates no hardship, for the reason that a party whose right 
 of action depends upon proof that a person has not done an 
 act which he was legally bound to do, and the neglect to do 
 which creates a legal liability in his favor, is ])resumed to be 
 prepared with proof that the act has not been done, and with- 
 out such proof the bringing of an action is wholly unwar. 
 ranted. There are a multitude of instances, however, where 
 only slight proof of the affirmative of the issue is necessary 
 to throw the burden of proving the negative upon the de- 
 fendant. These are instances where the law jiresumes the 
 affirmative of the issue. Thus, in an action on a promissory 
 
 * State V. Patterson, 45 Vt. 308. ' United States v. Gooding, 12 
 
 • State V. Lipscomb, 52 Mo. 32 ; Wheat. (U. S.) 460. 
 
 State V. Murphy, 33 Iowa, 270. * Kent v. White. 27 Ind. 390.
 
 fi54 KVIDKNCE. [CIIA1». XVII. 
 
 note, the nunc production of Ihc note, where its execution is 
 not denied, is i^ufficient to establish the phiintifr's right of • 
 action, the hiw presuminir non-pavnient from the fact of pos- 
 session ; and if the defendant sets up payni'^nt, the burden 
 is upon him, and this is the ease in all actions upon written 
 evidence of indebtedness where the amount is liquidated. 
 But in actions upon book debt, the rule is dillcrent. In such 
 cases, unless a settlement has heen had, and the amount due 
 liquidated under the hands of the parties, the plaintiff is not 
 only comperied to prove his account, l)ut, also, that it has 
 not been paid ; so in an action upon a bond, the mere pro- 
 duction of the bond is not sufficient ; the })laintifF is also bound 
 to prove that the defendant has not complied with its provis- 
 ions, and if there are any precedent acts to l)e performed b}' 
 him, that he has on his part fully performed, before the bur- 
 den is shifted to the defendant. There are exceptions to the 
 general rule that he who takes the affirmative of an issue 
 takes the burden of proof, as where the declaration or plea 
 sets up negative matter, essential to the issue, which is 
 peculiarly within the knowledge of the other party. In such 
 cases the allegations are taken as true unless denied by the 
 other party.^ Thus, in actions for a penalty for selling arti- 
 cles without a license, the fact that the party has a license 
 being peculiarly within the knowledge of the defendant aud 
 susceptible of easy proof by him, the burden is upon him to 
 show that he has complied with the law, and has a license to 
 sell.* Indeed, it may be given as the general rule that in all 
 cases where the nature of the allegations is such as to show 
 that the defendant is peculiarly j^ossessed of the knowledge to 
 disprove the issue, the law 2y}'esumes the truth of the negative 
 allegations, and the burden is upon the defendant to dispi^ove 
 them. But the rule never attaches except in instances where 
 the law presumes the truth of the allegation until the contrary 
 is shown.^ 
 
 ' state V. Crowell, 15 Me. 171 ; ' Genig v. State, 1 McCord (S. 
 
 Hjiskill V. Com., 3 B. Monr. (Ky.) C), 573; Com. v. Kimball, 7 Met. 
 
 342 ; Schleising-er v. Hexter, 34 N. (Mass.) 304 ; Sheldon v. Clark, 1 
 
 Y. Superior Ct. 499; Ryan v. Johns. (N.Y.) 513 ; Smith v. JeflFries, 
 
 Valandingham, 25 HI. 128. 9 Price, 257. 
 
 • Wheat V State, 6 Mo. 455.
 
 SEC. 199.] BURDEN OF PROOF. 655 
 
 In an indictment for keeping a feriy without a license, it 
 was held that the burden is upon the defendant to show that 
 he had a license, and that the prosecution were not obliged 
 to introduce any evidence upon that point ;^ but in cases 
 where the knowledge is equally accessible to both parties, so that 
 it cannot be said to be peculiarly in the defendant, the rule 
 is otherwise. Thus, it has been held that where licenses 
 granted were a matter of record in a public office, and must 
 be there recorded in order to have vr.Iidity, the State is bound 
 to show that no Hcense was granted to the defendant. 
 Where a person makes a will ivMie under guardianship as 
 non compos mentis, the burdoii io upon the executor to show 
 both that the testator had such mental capacity and freedom 
 of will and action as are requisite to make a legal and valid 
 will f but where the insanity of the testator is set up in 
 avoidance of the will, the party alleging it must prove it, as 
 the law presumes the opposite.^ 
 
 In an action for a breach of covenant in not supplying tim- 
 ber according to the terms of the contract, where the de- 
 fense was that the plaintiff did not furnish money, it was held 
 that the onus j)robandi was upon the defendant, but that a 
 verdict ought not to be rendered against the defendant if 
 the proof was such that the jury had reasonable doubts as to 
 the facts ;^ so in an action by an assignee under insolvent or 
 bankrupt laws, to recover the value of property transferred 
 by the bankrupt to one of his creditors, it is incuml^ent on 
 the plaintiff to prove that the defendant had reasonable 
 grounds to believe that the bankrupt was insolvent when the 
 transfer was made.^ Merely alleging a fact, without produc- 
 ing any evidence to support it, can in no case throw the bur- 
 den upon another party of disproving it f as an allegation 
 that a note sued upon is without consideration.'^ 
 
 * Wheat V. State, 6 Mo. 455. ■» Hollister v. Bender, 1 Hill (N. 
 
 ' Breed v. Pratt, 18 Pick. (Mass.) Y.), 150. 
 
 115. ^ Butler u. Breck, 7 Met. (Mass.) 
 
 ' Barton v. Scott, 3 Rand. (Va.) 164. 
 
 399 ; Phelps v. Hartwell, 1 Mass. ' Kyler v. Calmes, 1 How. (Miss.) 
 
 71 ; Hubbard v. Hubbard, 6 Mass. 121. 
 
 ^^ '^- ' Kyler v. Calmes, ante.
 
 g56 EVIDENCE. [CIIAP. XVII. 
 
 The date yf the assignment of a note is prima facie evi- 
 dence of the time when it was assigned.* Where a party 
 has once acquired a domicile in a town, and is there taxed, 
 in a suit for tlie same, the burden is ui)on him to show that 
 ho had roidly abandoned his domicile there, before the tax is 
 assessed ;^ so in an action between two towns for the supjjort 
 of a married woman who is a pauper, the burden is on the 
 pUiintiti" town to show that she has a settlement in the 
 defendant town, and if the defendant town seeks to avoid 
 liability upon the ground that her husband had a settlement 
 in some other town, the burden of proving this is on the 
 defendant, the rule being that a person seeking to avoid 
 lial)ility ])y setting uj) new matter takes the burden of proof 
 iis to such matter ;^ so where, in an action between two towns 
 for the settlement of a pauper, the defendant admits that 
 the pauper once had a residence in it, l)ut claims that he has 
 since gained a residence in the plaintiff town, the burden is 
 on the defendant to establish the issue •* so in a case where 
 the seizin of the party at a given time is admitted or proved, 
 the legal presumption is that it continues, and one who sets 
 up a disseizin takes the burden of proof of overcoming the 
 presumption and establishing a disseizin hy full proof? 
 
 Where, in an action of ejectment, the plaintiff claims to 
 recover by reason of the breach of a condition subsequent, he 
 is bound to prove the breach, even though a negative.^ 
 Where either party claims under a document signed by a 
 public agent, the signature must be proved, whether denied 
 or not.' So, in a qui tarn action against a clerk for issuing a 
 license to marry a female underage, the plaintiff" is not bound 
 to prove that consent was not given ; the record of the fact 
 being prima facie evidence of it, and in the custody of the 
 clerk, he is bound to produce it if he justifies under it f 
 
 ' Byrdv. Tucker, 3 Pike (Ark.), ' Brown v. King, 5 Met. (Mass.) 
 
 451. 173- 
 
 " Kilbum V. Bennett, 3 Met. " O'Brien v. Doe, 6 Ala. 787. 
 
 (Ma.ss.) 199. ' Yo-nee-gus-kee v. Coleman, 3 
 
 ' Randolph v. Easton, 23 Pick. Hawks (N. C), 174. 
 
 (Mass.) 242. " Blaun v. Beal, 5 Ala. 357. 
 
 * KilVmrn v. Bennett, 3 Met. 
 (Mass.) 199.
 
 SEC. 200.] BURDEN OF PROOF. 657 
 
 SO in a qui tarn action against a minister for marrying a minor 
 the burden of proving the parents' consent is on him.^ In a 
 trial for a criminal offense, the prosecution is bound to prove 
 actual guilt even to the extent of negativing facts that would 
 exclude it. Thus in a New York case^ it was held that 
 proof by the State that a murder had been committed, and 
 that the house in which the body was found was set on fire, 
 under circumstances that warranted a suspicion that it was 
 fired by the perpetrator, was not enough to show that the 
 respondent migld have l)een at the scene of the fire to change 
 the onus of proof upon the respondent to account for his 
 presence, but that it must show that he was in fact there. 
 
 Sec. 200. Presumption of Innocence, Etc. 
 
 The law presumes every person to be innocent until they are 
 proved to be guilty of a crime, and this presumption is so 
 strong that the prosecution must, before it rests its case, 
 make out the person's guilt by such evidence as leaves no 
 reasonable doubt, or he will be entitled to an acquittal with- 
 out the introduction of any rebutting proof ;^ and where the 
 evidence is circumstantial, the rule is that the jury, in order 
 to convict the prisoner, must find the circumstances clearly 
 proved as facts, and when they are so found, they must be 
 of such force and character as clearly and unequivocally im- 
 ply the prisoner's guilt, and not consistent with any reason- 
 able hypothesis of his innocence. If they can be reasonably 
 reconciled with any hypothesis of his innocence, he is entitled 
 to the Ijenefit of that hypothesis, and it would be error for 
 a jury to convict.^ Indeed, so strong is this presumption 
 of innocence and honesty of purpose on the part of every 
 member of society, it is held that in a civil action where the 
 facts of a case present a double aspect, one consistent with 
 fair dealing and the other involving dishonesty of purpose, 
 the courts will, unless the weight of evidence is decidedly in 
 
 ^ Medlock v. Brown, 4 Mo. 379. <• United States v. Douglass, 2 
 
 ' People V. Bodine, 1 Denio (N. Blatchf. (U. S.) 207; Og-letree v. 
 
 ^•]' ^^1- State, 28 Ala. 693 ; State v. New- 
 
 ' United States v. Gooding-, 12 man, 7 id. 69 ; Com. v. Kimball, 24 
 
 Wheat. (U. S.) 460. Pick. (Mass.) 366 ; Com. v. Dana, 2 
 
 42 
 
 Met. (Mass.) 329.
 
 658 EVIDENCE. [CIIAP. XVII. 
 
 favor of the hypothesis of dishonesty, strike the balance in 
 favor of innocence and honesty of pnrpose.^ The rule does 
 not go to the extent of excluding ciny doul^t as to the prisoner's 
 guilt, but is confined to reasonable doubts — such doubts as 
 lead a juror to hesitate al)out convicting the prisoner, as do not 
 leave the mind satisfied that a verdict of guilty should be 
 rendered, and such as would lead a reasonable man to hesitate 
 about acting against it in the ordinary relations of life. It 
 is not a question whether the jury must believe in his guilt, 
 but whether, while the mind inclines to the prisoner's guilt, 
 there is yet such a doubt remaining in his mind as leads him 
 to hesitate about convicting him ; whether there is any 
 reasonable h3^pothesis in view of all the evidence consistent 
 with the prisoner's innocence. If so, the prisoner is entitled 
 to the benefit of the doubt, as the prosecution has failed to 
 maintain the issue raised by it by full [)roof, which requires 
 it to sliow the prisoner's connection with the crime beyond a 
 reasonaljle doubt. 
 
 Sec. 201. Burden in Case of Lost Notes, Etc. 
 
 As to the burden of proof in the case of lost notes or 
 evidences of indebtedness, the rule is, that where the instru- 
 ment is admitted once to have existed, the creditor is merely 
 bound to prove its loss, and the burden is upon the defendant 
 to prove payment or satisfaction of the claim.^ 
 
 But the loss must be clearly proved, otherwise all the pre- 
 sumptions as to its contents will be against the holder.^ 
 
 In the case of an instrument mutilated or destroyed by a 
 person who is a party to it, everything which can be, will be 
 presumed against him when it is offered in evidence, and the 
 burden will be upon him to explain the mutilation or de- 
 
 ' Greenwood v. Lowe, 7 La. Ann. that such a note once existed, a le- 
 
 197. gal consideration is presumed, and 
 
 ' Bell V. Young, 1 Grant (Penn.), the holder will not be compelled to 
 
 175 ; so in Mcllroy v. Cochran, 3 substantiate the orig^inal transaction 
 
 Litt. (Ky.) 454, it was held that or show its non-payment, 
 
 where the loss of a note is alleged ' Little v. Marsh, 2 Ired. (N. C.) 
 
 and it is admitted by the defendant 331.
 
 SEC. 202.J BURDEN OF PROOF. 659 
 
 struction, and the exact legal character and effect of the in- 
 strument originally.^ 
 
 Sec. 202. Who is to Begin. 
 
 It frequently becomes an important question whether, 
 under the pleadings, the plaintiti' or the defendant shall 
 open the facts and evidence to the jury. The right to 
 begin often confers a great advantage upon a party, and is 
 a right which is generally claimed, as where evidence is an- 
 ticipated on the opposite side which will give a right to reply 
 generally on the whole case ; or in some instances it may be 
 a disadvantage, as where the party relies upon the witnesses 
 of his opponent, or upon the difficulty of the proofs incum- 
 bent upon him. 
 
 As a rule, the right to begin de]Dends upon the nature of 
 the issue and the rules relating to the burden of proof at 
 the opening of the trial, but the real test is not on which 
 side the affirmative rests, but which side will he entitled to a 
 verdict if no evidence is given,^ which is really nothing more 
 than a new way of stating the rule that the party upon 
 whom the liurden of proof lies must begin, because until 
 this question is settled it cannot be determined who would 
 be entitled to the verdict if no proof was given. In deter- 
 mining this question, however, regard is to be had to the 
 eflect and substance of the issue, rather than to its gram- 
 matical form.^ Thus, in an action for the breach of a con- 
 tract by executing it in an unworkmanlike manner, and the 
 defendant pleads that it was executed in a workmanlike 
 manner, the plaintiff must begin, because if no evidence 
 was given the verdict must be against him, because the law 
 will not assume that the work was bad.* So is an action by 
 an iudorser agamst an acceptor; if the defendant pleads that 
 the bill was for the drawer's accommodation, and that the 
 plaintiff did not give any consideration to the drawer, to 
 
 * Kent V. Bottoms, 3 Jones (N. * Leete v. Gresham Ins. Co., 15 
 C), 78 ; Haleyburton v. Kershaw, Jur. 1161. 
 
 3 Des. (S. C.) 105 ; Henderson v. ' Amos v. Hughes, 1 M. & R. 464; 
 Hake, 1 D. & B. (N. C.) 119. Lamand v. Leggett, 7 C. & P. 615. 
 
 * Amos V. Hughes, ante.
 
 660 EVIDENCE. [CIIAP. XVIT. 
 
 wliiih the plaintiff replies that it avus indorsed to him hy the 
 drawer for a irood consideration. As a consideration is pre- 
 sumed, the defendant must begin by proving the want of it, 
 or some suspicions circumstances to throw the proof on the 
 phiintilf.' In a declaration U[)on a policy of life insurance, 
 the plaint i If averred that the deceased had led a temperate 
 life, which was denied by the plea. It was held that the 
 onus probandt, and therefore the right to begin, was with the 
 plaintiff, as he wju; bound to give some evidence that the life 
 was insurable ; though it was contended that intemperance 
 was not to l)e presumed. ^ And the same rule has been 
 adopted where the issue was raised on a plea respecting the 
 health of the insured :'^ although in the last case the plea, 
 alleging a specific complaint, ended Avitli a vcrilication. 
 Where an issue on the sanity of a person was directed by 
 chancery, the court presumed that the person ordered to be 
 plaintiff was to begin.^ 
 
 So, irenerally if the affirmative of the issue lies on the de- 
 fendant, and the plaintilF does not seek to recover imascer- 
 taiiied damages, the defendant's counsel ])egins (after the 
 pleadings have been opened by the plaintiff), and ha-s the 
 o-eneral reply. ^ Thus, where the defendant, a constable, 
 beiiiir sued in tresspass pleaded a justification without the 
 general issue, it was held that his counsel, admitting a de- 
 mand of a copy and perusal of the warrant and the damages 
 claimed, was entitled to begiu.^ To trespass quare clausum 
 the defendant i)leaded a right to a watercourse and entry to 
 remove obstructions, the plaintiff traversed the right. It 
 was held that the judge might proi)erly allow the defendant 
 to begin, unless the plaintiff undertook to jjrove substantial 
 damage.'' So where a defendant in replevin pleads property 
 
 ' Mills V. Barber, 1 M. & W. 425 ; * Cotton v. James, M. & M. 275 ; 
 
 Lews V. Parker, 4 A.d. & E. 838. Jackson v. Hesketh, 2 Stark. 518 ; 
 
 "^ Huckman v. Fernie, 3 M. & W. Peai-son v. Cole.^, 1 M. & R. 206. 
 
 .')0.") ; Rawlins V. Desborough, 2 M. ' BuiTell v. Nicholson, 1 M. & R. 
 
 & R. 70. 305. 
 
 ' Geech v. Ingall, 14 M. & W. 95 ; ' Chapman v. Rawson, 8 Q. B. 
 
 Ashby V. Bates, 15 M. & W. 589. 673. 
 
 * Frank v. Frank, 2 M. & R. 314.
 
 SEC. 202.] BURDEN OF PROOF. C61 
 
 ill ;i third i)ersoii and not in the plaintiff, to which the plain- 
 tiff replies that the property is not in such third person, but 
 in himself, the defendant is entitled to begin. ^ And where, 
 to an action of covenant for repayment of money, the defend- 
 ant pleaded that the deed was given to secure money lost by 
 gambling, it was held that the defendant was entitled to begin.^ 
 
 But where by order of court the defendant is under an 
 obligation to admit the plaintiff'' s case, this does not neces- 
 sarily deprive the plaintiff of his right to begin.^ Nor does 
 the admission by the defendant's counsel of all the facts, the 
 proof of which are on the plaintiff, give the defendant the 
 right to begin, lohere the admission of these facts miglit have 
 been made in pleadincj.^ 
 
 In many cases where damages, and not the decision of a 
 mere right, have been the object of an action, defendants so 
 used to plead as to take an affirmative issue on themselves, 
 and therel)y attempt to exclude the plaintiff's right to a 
 general reply. The judges, however, came to a resolution 
 that "inactions for libel, slander and injuries to the person, 
 the plaintiff shall begin, although the affirmative issue is on 
 the defendant." The resolution, however, is not to be taken 
 as confined to those actions, or introducing a new practice, 
 but as a declaratory of a principle applicable to other ac- 
 tions.^ The general rule, therefore, as laid down in this 
 case is, that loherever the record sltows that sojnething, even 
 damages only, is to be proved by the plaintiff, he ought to 
 begin, wiiether the action be in contract or tort. Where the 
 ilamages are of ascertained amount or must be nominal, then 
 the defendant may begin if the pleading will admit of it.^ 
 Thus, in the case last cited, in covenant for dismissing a 
 clerk, the defendant pleaded misconduct, and plaintiff re- 
 plied de injuria, etc. It was held that plaintiff ought to 
 begin. So in an action on a promissory note, to which de- 
 fendant pleads inter cdia, payment into court, and issue is 
 
 ' Colstone v. Hiscolbs, 1 M. & R. * Pontifex v. Jolly, 9 C. & P. 202 ; 
 
 301. Price v. Seaward, C. & M. 23. 
 
 » Hill -«. Pox, 1 F. & P. 136. " Mercer t>. Whall, 5 Q. B. 447, 
 
 ^ Thwaites v. Sainsbury, 5 C. & 462 
 
 ^- 69. 6 Mercer v. Whall, ante.
 
 662 EVIDENCE. [chap. XVII. 
 
 joined as to damages ultra, the plaintiff is to begin, though 
 other issues lie on the defendant.^ On a note by the defend- 
 ant, to which she pleads covertuic when she made it, on 
 which issue is joined, the defendant is to begin, although the 
 plaintiff seeks to recover interest not mentioned on the 
 uote.^ In trespass, where the defendant pleaded a custom 
 to divert water, which was traversed by the plaintiff, the 
 defendant was allowed to begin, though the plaintiff's coun- 
 sel asserted his intention to ask for heavy damages.^ In the 
 case last cited Tindal, C. J., said: "The plaintiff might 
 have traversed the custom and new assigned excess, and then 
 would have had a right to begin." 
 
 The plaintilf need not in any action prove the amount of 
 damage he alleges he has sustained, unless the defendant 
 either deny or state that he does not admit the same. Hence, 
 where the defense contains no such denial or statement, and 
 is affirmative only, the defendant will be entitled to begin.* 
 "Where the affirmative of any one material issue is on the 
 plaintiff, and he undertakes to give evidence upon it, he has 
 a right to Ijcgin as to all ;^ and it seems that judgment by 
 default as to jjart has the same effect, though the defendant 
 pleads affirmatively as to the residue.^ But Avhere, to au 
 action on a bill and on an account stated, the defendant 
 pleaded payment to the first and non-assumpsit to the second 
 count, it was held that the plaintiff had no right to begin 
 unless his counsel undertook to give some evidence of the 
 account stated besides the Ijill.'^ The plaintiff in replevin 
 has the same right as in other actions, though both parties 
 are actors.® 
 
 ' Booth V. Millns, 15 M. & W. 669. ^ Rawlins v. Desborongh, 2 M. & 
 
 » Cannam v. Farmer, 3 Exch. 698. R. 328 ; Collier v. Clark, 5 Q. B. 467. 
 
 ^ Bastard v. Smith, 2 M. & R. 129. " Wood v. Pringle, 1 M. & R. 277. 
 
 * Lacon v. Higgins, 3 Stark. 178 ; ^ Smart v. Raynor, 6 C. & P. 721 ; 
 
 Mon-is V. Lotan, 1 M. & R. 233 ; Mills v. Oddy, 6 id. 728 ; overruling 
 
 Bonfield v. Smith, 2 M. & R. 519 ; Homan v. Thompson, 6 id. 717 ; 
 
 3 C. & P. 463; Woodgate v. Potts, 2 Frith v. McIntjT-e, 7 C. & P. 44 ; 
 
 C. & K. 258 ; Tindall v. Basket, 2 Oakeley v. Ooddeen, 2 F. & F. 656. 
 
 F. & F. 644, and 1 Taylor Evid., '^ Curtis ?5. Wheeler, M. & M. 493. 
 5 355.
 
 SEC. 203.] BURDEN OF PROOF. 663 
 
 Sec. 203. Who is to Begin an Action for Recovery of Land. 
 
 In ejectment the defendant may, in some cases, by admit- 
 ting a title in tlie plaintiff, entitle himself to begin, and the 
 same principles apply to an action for the recovery of land 
 by a remedy substituted for ejectment, notwithstanding the 
 use of pleadings therein. Thus, where the plaintiff claims 
 as heir-at-law, and the defendant as devisee, it is a settled 
 rule that the defendant, by admitting the plaintiff's pedigree 
 and the dying seised, may entitle himself to begin and to 
 reply.^ And the same principle applies, although one of the 
 plaintiffs had, since the death of the testator, become assignee 
 of an outstanding term in part of the land ; for "the real 
 question in dispute is the validity of the will."^ For the 
 same reason, where the plaintiff claimed as heir of C. and as 
 devisee and heir of R., who was C.'s heir, and the defendant 
 claimed as devisee of C, the defendant's counsel was per- 
 mitted to begin on admitting that plaintiff was heir of C. 
 and of R., and entitled to recover, unless defendant proved 
 C.'s will.^ Where the plaintiff claims as devisee of A., and 
 the defendant as devisee under a subsequent will of A., the 
 defendant cannot, by admitting the seisin of A. and the 
 prima facie title of the plaintiff, entitle himself to begin.* 
 Generally, in order to entitle the defendant to begin by ad- 
 mitting the plaintiff's case, he must admit the whole without 
 qualification.^ Therefore, where the plaintiff claims as the 
 heir of A., and defendant under a conveyance by A. in his 
 lifetime, the latter cannot deprive the plaintiff of the right 
 to begin by only admitting the heirship of the plaintiff and 
 seisin of A. unless defeated by the conveyance,^ for it is part 
 of the plaintiff's case that A. died seized. So where each 
 party claimed as heir, and defendant admitted that plaintiff 
 was entitled as heir if defendant was not legitimate ; held, 
 that he could not by so doing obtain a right to begin.' 
 
 ' Revett V. Braham, 4 T. R. 497 ; * WoUaston v. Barnes, overrul- 
 
 Fenn v. Johnson : Adam's Eject. (2d ing Corbett v. Corbett, 3 Camp. 368. 
 ed.) 256, and Mercer v. Whall, 5 Q. " Pill v. Wilson, 1 M. & R. 232. 
 B. 464. « Tucker v. Tucker, M. & M. 536. 
 
 " Smith V. Smart, 1 M. & R. 476. '' Warren v. Bray, M. & M. 166. 
 
 ' WoUaston u.Barnes,! M.&R. 386.
 
 664 EVIDENCE. "[chap. XVIL 
 
 An erroneous ruling of the court as to who is to begin, 
 will not nccessaril}' entitle the party to a new trial,^ but if 
 the error is clear and an undue advantage may have been 
 given to the successful party, it is ground for a new trial.'^ 
 
 Sec. 204. Right to Reply. 
 
 Generally, the party who begins has the right to the gene- 
 ral reply if the other party calls witnesses. If the defend- 
 ant introduces evidence to impeach the plaintiff's case, and 
 also sets up an entirely new case which the plaintift' contro- 
 verts by evidence, the defendant in his reply is confined to 
 the new case set up by him.^ Unless the defendant gives 
 new evidence the plaintiff is not entitled to reply, there 
 being no facts upon which his counsel can comment. 
 
 ' Bradford v. Freeman, 5 Exch. ^ Ashley v. Bates, 13 M. & W. 
 274. 589 ; Bather v. Brayne, 5 C. B. 655. 
 
 ^ Starkie's ed. 384.
 
 CHAPTER XVIII. 
 
 PRIMA FACIE EVIDENCE. 
 SECTION. 
 
 205. General Rule as to. Illustrations. 
 20f). As to Receipts, etc. 
 
 Sec. 205. General Rule as to. Illustrations. 
 
 WliJle it is ti'iic that a person seeking a recovery of another 
 in an action at hiw is charged with the burden of provino- the 
 issue in his favor, 3et Avhenever the hiw interposes an}^ pre- 
 sumptions in his favor, it often happens that he is only called 
 upon to make J) riiua facie proof. Therefore it is material 
 to know what, in law, is regarded as pt^ima facie evidence, 
 so that its production by a party puts the other party in a 
 position that he must rebut it, to prevent a recovery against 
 him. Prima facie may be said to be such evidence as in law 
 is regarded as sufficient to entitle a party to a recoveiy nntil 
 it is fairly overcome by rebutting proof.^ Thus, in an action 
 upon a promissory note, unless a plea or notice denying its ex- 
 ecution by the defendant is filed, the plaintiff is only required, 
 in the first instance, to produce the note on trial, and the law 
 presuming from its possession l)y him that it is still an out- 
 standing obligation upon the makers and indorsers, its pro- 
 duction makes, for the plaiutifi", a prima facie case, and the 
 burden is imposed upon the defendant to overcome the efiect 
 oi \)l)\s, prima facie case, or the plaintiff will be entitled to a 
 judgment for the amount apparently due upon it.^ 
 
 So, in an action of trover, possession of a chattel is prima 
 facie evidence of title, and imposes npon the plaintiff the 
 onus of proving title in the chattel in himself, or that he has 
 a right to its possession as against the defendant, and he must 
 do this by such proof as fully overcomes the presumption of 
 property in him who has possession.^ 
 
 ' Kelly v. Jackson, 6 Pet. (U. S.) " Pinkham v. Gear, 3 N. H. 484 | 
 
 €22. Finch v. Alston, 2 S. & P. (Ala.) 83 ; 
 
 * Conway -y. Williams, 2 Hun (N. Drummond v. Hopper, 4 Harr. 
 
 Y.), 642. (Del.) 327 ; Trougott -y. Byers, 5
 
 666 EVIDENCE. [chap. XVIII. 
 
 This presumption of title to personal property in him who 
 has possession is so strong that it is held that all species of 
 personal property found among the ellects of a deceased per- 
 son belong to his heirs, and that if any person claims to be 
 the owner thereof he nmst make out his title by clear and 
 unmistakable proof of ownership in him, and beyond a 
 doubt ;' but possession of personal property by the consent 
 of the true owner does not raise a legal presumption of title 
 against the owner, but only against others f and where prop- 
 erty is found in the possession of several, the law refers the 
 possession to him who has the true title, and this is the rule 
 both as to real and i)ersonal estate f so prior possession of 
 land is pr una facie evidence of a title in fee, and is good until 
 a l)etter title is proved ;'' but such title may be overcome by 
 one Avho has a Ijetter title thereto, and when a better title is 
 estal)lished, the possession of the premises, if short of the 
 statutory period, will be presumed to be in subordination to 
 the title of the real owner, as adverse possession is never pre- 
 sumed by the law. But the onus of establishing the real title 
 is upon him who sets it up ;^ but when title is claimed by 
 adverse possession without color of title, the onus, as against 
 one having a clear documentary title, is on him who sets up 
 the possessory title f and all presumptions will be against 
 him, and he will be required to make out his possessory title 
 by strict proof ;' but as against every person, except one 
 
 Cow. (N. Y.) 480 ; Goochvin v. Garr, " Allen v. Harper, 59 Me. 371 ; 
 
 8 Cal. G15 ; Entreken v. Brown, 32 Baldwin v. Buffalo, 3.5 N. Y. 375 ; 
 
 Penn. St. 3H4 ; Vining- v. Baker, 53 Rowland v. Updike, 28 N. J. 101 ; 
 
 Me. 44 ; Fish v. Skut, 21 Barb. (N. Brandt v. Ogden, 1 Johns. (N. Y.) 
 
 Y.) 333. 156 ; Edmonston v. Shelton, 4 Jones 
 
 ' Succession of Alexander, 18 La. (N. C), 451 ; Austin v. Bailey, 37 
 
 Ann. 337. Vt. 219 ; McCall v. Pryor, 17 Ala. 
 
 * Magee?'.Scott.9Cush (Mass.)148. .533 ; Russell v. Mai-ks, 3 Met. (Ky.) 
 
 ' Maples V. Maples, Rice (S. C), 57 ; Rochell v. Holmes, 2 Bay (S. 
 
 300 ; Lenoir v Rainey, 15 Ala. 667 ; C), 487. 
 
 Governor v. Campbell, 17 id. 566 ; * Rowland v. Updike, 28 N. J. 
 
 Miller v. Fraley, 23 Ark. 735. 101 ; Stewart v. Cheatham, 3 Yerg. 
 
 ' Herbert v. Herbert, Breese, (Tenn.) 60 ; Clifton v. Lilly, 12 Tex. 
 
 278 ; Hawkins ^5. County Commis- 130. 
 
 sioners, 2 Allen (Mass.), 251 ; Wai-d ' Edmonston v. Shelton, 4 Jones 
 
 D. Mcintosh, 12 Ohio St. 231 ; Hunt (N. C), 451 ; Baldwin v. Buffalo, 35 
 
 V. Titter, 15 Ind. 318. N. Y. 375.
 
 SEC. 204. j PRIMA FACIE EVIDENCE. 667 
 
 having a clear documentary title, possession is sufficient, and 
 all presumptions will be made in its t'avor.^ 
 
 It must Ije understood that a presumption of title from 
 possession never arises except when the possession is perfectly 
 consistent with an unqualified ownership. When it is shown 
 that it was taken in subordination to the title of another, and 
 that only a qualified interest or estate less than an absolute 
 title was claimed, a grant will not be presumed.^ Where 
 the death of a party becomes a material issue, a grant of let- 
 ters of administration is prima fade sufficient evidence of 
 his death ;^ so proof that he was missing at a particular 
 time, and the circulation of a report and general belief that 
 he was dead, \% prima fade evidence of his death ;* or that 
 he has been absent and not heard from for seven years.^ The 
 record of the discharge of an insolvent or bankrupt debtor 
 \s> prima fade evidence of notice to all his creditors f ac* an 
 entry in a day-book is prima fade evidence of the price and 
 delivery of the goods charged there ;' so an entry in a log- 
 book is prima fade evidence of the truth of every particular 
 of such entry f so an acknowledgment of the payment of 
 the purchase-money in a deed \s prima fade evidence of the 
 fact ;^ so a receipt is prima fade evidence of all it purports to 
 be, and no more;^" therefore a receipt for so much money for 
 property delivero^l is woi pnma fade evidence thtit it is in 
 
 ' Nixon v. Carce, 28 Miss. 414; 538; Tilley -?>. Tilley, 2 Bland (Md.), 
 
 Clifton V. Lilly, 12 Tex. 130 ; Wen- 436 ; Primm v. Stewart, 7 Tex. 178 ; 
 
 dell -w. Blaiichaa-d. 2 N. H. 486. Spurr ■». TaimbuU, 1 A. K. Marsh. 
 
 '' Colvin V. WarfonI, 20 Md. 357. (Ky.) 278 ; Winship v. Connor, 42 
 
 ' French t>. Frazer, 7 J. J. Mareh. N. H. 841 ; Stinchfield v. Emerson, 
 
 (Ky.) 425. 52 Me. 465 ; Hulett v. Hulett, 40 Vt. 
 
 * Jackson v Etz, 5 Cow. (N. Y.) 384. 
 
 314. « Jay v. Slack, 4 N. J. L. 77. 
 
 ^ "Whiteside's Appeal, 23 Penn. ' Ducoigni v. Schneppl, 1 Yeates 
 
 St. 114 ; Bradley v. Bradley, 4 (Penn.), 347 ; McCoul v. Lekamp, 2 
 
 Whart. (Penn.) 173 ; Eagle v. Em- Wheat. (U. S.) 111. 
 
 mett, 4 Bradf. (N. Y.) 117 ; Osbom ' Douglass v. Eyre, Gilpin, 146. 
 
 V. Allen, 26 N. J. 388 ; Newman v. ' Thallhimer v. Brinkerhoff, 6 
 
 Jenkins, 10 Pick. (Mass.) 515 ; Ste- Cow. (N. Y.) 90 ; Gully v. Grubhs, 
 
 vens v. McNamara, 36 Me. 176; 1 J. J. Marsh. (Ky.) 387. 
 
 Crawford v. Elliott, 1 Houst. (Del.) '" McDowell v. Lemaitre, 2 N. & 
 
 465 •, Smith v. Knowlton, 11 N. H. M. 320. 
 191 ; Caper v. Thurmond, 1 Ga.
 
 ^(38 EVIDENCE. [chap. XVIII. 
 
 full tor all such property previously delivered ;^ so is a bill 
 of hiding;'^ or :i certificate of preemption has been held to be 
 ^rima facie evidence of title as against any other certiticate 
 or survey.'' The record of a recovery in an ejectment suit 
 i^pnmafacie evidence of title to the premises involved in 
 the action ;* a decree in admiralty restoring the libeled 
 property to the claimant is prima facie evidence of title 
 thereto-'^ u judgment on an original attachment in another 
 State is prnft/acve evidence of the debt, even though ob- 
 tained without notice f so is a judgment against a party not 
 brought into cc)urt ;'^ so is a sentence in a foreign court of 
 admiralty unless it contains enough to rebut such presump- 
 tion f so, where an act of the legislature directs that the 
 certihctite of a \)\M\c officer shall be evidence, a paper pro- 
 duced with his name will lJe^;?•^y/^rt/«c^e evidence unless it is 
 proved not to have been signed by him f so Avliere books 
 of account or papers contain distinct settlements made at 
 dilierent times, the last settlement is j;n'm«/«ae evidence of 
 the fact that it embraces all the others ;i" so a receipt ac- 
 knowledo-ing payment of a subsecpieiit quarter's rent is 
 treated '^^ prima facie evidence that all the prior rent is 
 paid;" the return of an officer upon a warrant is regarded as 
 prima facie evidence of an arrest against both the grand 
 juror and officer ;^^ so the date of a writ or other process is 
 prima facie evidence of the true time when it was issued ;^^ 
 but the date of a deed or contract is only prima facie evi- 
 dence of the time wh(;n it was executed as between the par- 
 ties thereto.'* The return of a sheriff is ^?7ma/ac^e evidence 
 
 ' Reed i). Phillips, 6 111. 39. * Johnson v. Ludlow, 1 Caines' 
 
 " Benjamin v. Sinclair, 1 Bailey Cas. (N. Y.) 30. 
 
 (S. C), 174. * Prather xi. Johnson, 3 H. & J. 
 
 ' Rector v. Welch, 1 Mo. 334. (Md.) 487. 
 
 ♦ Chirac v. Reinecker, 2 Pet. (U. '" Dorsey v. Kollock, Coxe, 35. 
 S.) 622. " Brewer xi. Knapp, 1 Pick. 
 
 » Thompson v. Stewart, 3 Conn. (Mass.) 332. 
 
 171. " Allen v. Gray, 11 Conn. 95. 
 
 • Miller v. Pennington, 2 Stew. " Society for Prop, of The Gospel 
 399. V. Whitcombe, 2 N. H. 227. 
 
 ' Taylor v. Pettibone. 16 Johns. " Baker v. Blackljurn, 5 Ala. 517. 
 <N. Y.) 66.
 
 SEC. 204.] PRIMA FACIE EVIDENCE. 669 
 
 of wliat was done hy him in a controversy between strangers 
 to the suit in which it was made ;^ so the return of a sheriff 
 on the back of an attachment is prima facie evidence of the 
 property, so as to bind it on execution for the payment of 
 the debt ;^ so an execution book l^ept by the clerk in prima 
 facie evidence of the truth of all entries made in it, but it 
 may be impeached by extrinsic evidence ;^ an order drawn 
 upon one for money for value received is prima facie evi- 
 dence that the drawer has received the money or its equiva- 
 lent ;^ so an order payable out of a specific fund h prima fa- 
 cie evidence of debt f so where an order is given by A. to 
 B. on C. for certain property, B.'s receipt upon the order for 
 the property is prima facie evidence in an action by C. 
 against A., of the delivery of the property.^ 
 
 The fact that a testator is under guardianship as a iion 
 co7npos at the time of the execution of a will is prima facie 
 evidence that the testator had not the requisite mental capac- 
 ity to make it.' The production of a contract or deed bear- 
 ing the same name with the party in the suit is prima facie 
 evidence of identity f but otherwise if the name is not 
 strictly identical f and where a party claims an interest in 
 an estate, something more than identity of name is required.^* 
 
 The invoice of a cargo is, against the general principles of 
 evidence, uniformly admitted ixa prima facie evidence of the 
 value of the cargo, but of nothing more.^^ The registry of a 
 vessel in a certain name is not even prima facie evidence 
 that such person was the owner of the vessel. ^^ A register's 
 deed, purporting to be a conveyance of land sold for taxes, is 
 
 ' Gray v. Gray, 3 Litt. 465. (Ky.) 202 ; Cooper v. Parton, 1 Dur. 
 
 " Huyerv. Osborne, 1 Bay, 319. (Ky.) 92; Gitt v. Watson, 18 Mo. 
 
 ' Taylor v. Dundas, 1 Wash. (U. 274. 
 
 S.) 92. ^ Ellsworth v. Moore, 5 Iowa, 
 
 * Child V. Moore, 6 N. H. 33. 486 ; Burford v. McCue, 53 Penn. 
 " Curie V. Beers, 3 J. J. Marsh. St. 427. 
 
 (Ky.) 170. '» Maers v. Bunker, 29 N. H. 420. 
 
 ® Rawson v. Adams, 17 Johns. ^* Graham v. Penn. Ins. Co., 
 
 (N. Y.) 130. Wash. C. C. (U. S.) 113= 
 
 ' Stone V. Damon, 12 Mass. 488. ^'^ Sharp v. U. S. Ins. Co., 14 
 
 * Jackson v. King, 5 Cow. (N. Johns. (N. Y.) 201 ; Leonard v. 
 Y.) 237 ; Brown v. Metz, 33 111. 339 ; Huntington, 15 id. 303. 
 
 Cates V. Loftus, 3 A. K. Marsh.
 
 ^70 EVIDENCE. [chap. XVIII. 
 
 prima fade evidence that liis proceedings were regular. 
 Proof that a person had resided in a place is prima fade 
 evidence that such place is still his residence.* Proof of the 
 execution and registry of a mortgage deed is prima fade 
 evidence of title in the mortgagee without the production of 
 the note which it was given to secure.^ The return of a 
 constable on a writ is prima fade evidence of the facts con- 
 tained in it, but may be rebutted.'* The fact that a vessel 
 was seaworthy when a policy attached is j^dma fade evi- 
 dence that it continued so during the time of the risk.^ The 
 agreement of adjoining owners upon a dividing line is ^;rma 
 fade evidence that it is the true line.^ 
 
 Sec. 206. As to Receipts, Etc. 
 
 A receipt for money, and expressed to be in full of all 
 demands, is, however, on\y jvima fade evidence of payment, 
 and may be contradicted, varied or explained. They are not 
 subject to the rule which excludes parol evidence to contra- 
 diet or vary a written instrument.' But all presumptions 
 are in favor of the receipt, and the party attacking it must 
 clearly show that its legal effect is not as expressed to be on 
 the fiice of it ; and when the evidence is contradictory, and 
 the evidence on the one side is entitled to as much weight 
 as that on the other, the receipt will stand.^ Thus, a receipt 
 may be shown to have been fraudulently obtained,^ to have 
 
 ' Bodly V. Hood, 2 A. K. Marsh. S.)164; Middlesex u Thomas, 20 N. 
 
 (Ky.) 244. J. 39 ; Pati's Case, 4 Ct. of Claims 
 
 » Prother v. Palmer, 4 Pike (U. S.), 523 ; Joslyn v. Capron, 64 
 
 (Ark.), 456. Barb. (N. Y.) 599 ; Driver v. Huds- 
 
 ' Davis V. Mills, 18 Pick. (Mass.) peth, 16 Ala. 348 ; Brook v. Quinn, 
 
 394 13 Md. 379 ; Rourke v. Story, 4 E. 
 
 ♦ Perryman v. The State, 8 Mo. D. Smith (N. Y. C. P.), 54; Mt. 
 208. Olivet Cemetery Co. v. Shubert, 2 
 
 'Martin v. Fishing Ins. Co., 20 Head. (Tenn.) 116; Gibson v. Han- 
 Pick. (Mass.) 389. na, 12 Mo. 162 ; Smith V. Ballou. 1 
 
 • Sparhawk v. Bullard, 1 Met. R. I. 496. 
 
 (Ma-ss.) 95. * Borden v. Hope, ante; Levi v. 
 
 ' Hill V. Robinson, 3 Jones (N. C), Carrick, 13 Iowa, 344. 
 
 &01 ; Borden v. Hope, 21 La. Ann. ' Clark v. Devereaux, 1 S. C. 172 ; 
 
 581 ; Batdorf v. Albert, 59 Penn. St. Russell v. Church, 65 Penn. St. 9 ; 
 
 59 ; Dolan v. Frieberg, 4 W. Va. 101 ; The Galloway C. Morris, 2 Abb. (U. 
 
 The GaUoway C. Morris, 2 Abb. (U. S.) 164.
 
 SEC. 205.] PRIMA FACIE EVIDENCE. 671 
 
 been given under ii mistake/ or in full, when a part only 
 of the debt was received, and that even when no fraud was 
 practiced, no mistake made, and the party giving it was 
 laboring under no error or fraud whatever ;^ or when it is 
 clearly apparent that it does not embrace the intention of 
 the parties, the real intention may be shown f or when the 
 meaning is doulitful, the real intention of the parties may 
 be shown ;* or when it was obtained imder such circumstances 
 that a court of equity would relieve the party against its 
 eifect f but, where there is no fraud, mistake, or evident 
 misconception of rights, and the demand covered by the suit 
 is unliquidated, a receipt, is conclusive, and a bar to all 
 actions which it in its terms, or by fair interpretation, covers.^ 
 Neither are admissions made in a receijJt conclusive upon 
 the party giving it. Thus, where a member of a religious 
 society gave a receipt for money paid him, and therein stated 
 that he had "withdrawn himself" from the society, it was 
 held that this did not estop him from maintaining a Ijill 
 in equity setting up his wrongful exclusion from the society, 
 and demanding an accounting and payment to him of his share 
 of the assets.'^ Shipping receipts, expressed to l)e in full on 
 account to date, are held to be open to contradiction by parol 
 proof.^ A receipt may be shown to be Avithout consideration 
 and consequently void.^ Thus, where A., who had taken from 
 B. a contract to do a certain piece of work, but who, after 
 doing a part of it, had been prevented by B. from completing 
 
 ' Russell V. Church, 65 Penn. St. (N. Y.) 630 ; Illinois Central R. R. 
 
 9 ; Joslyn v. Capron, 64 Barb. (N. Co. v. Welch, 52 111. 183 ; Bonell v. 
 
 Y.) 599 ; Dodd v. Mason, 39 Ga. 605 ; Chamberlain, 26 Conn. 487 ; Hol- 
 
 Walker v. Christian, 14 Gratt. (Va.) brook v. Blodgett, 5 Vt. 520; Beers 
 
 2j1 ; Elwell v. Leslie, 6 N. J. Eq. v. Broome, 4 Conn. 467 ; Goddard 
 
 349. V. Cutts, 2 Fairfax (Me.), 440. 
 
 ^ Ryan v. Ward, 48 N. Y. 204 ; ' Nachtrieb v. Harmony Settle- 
 Hope V. Johnson, 11 Rich. (S. C.) ment, 3 Wall. Jr. (U. S.) 66. 
 135 ; Jones v. Ricketts, 7 Md. 108. * Dolan v. Frieberg-, 4 W. Va. 
 
 ' Grumley v. Webb, 44 Mo. 444. 101. 
 
 * Walker v. Christian, 14 Gratt. ° Seymour v. Minturn, 17 Johns. 
 <Va.) 291; Learned v. Bellows, 8 (N.Y.)169; Jackson t). Stackhouse, 
 Vt. 79. 1 Cow. (N. Y.) 122; Sigourney v. 
 
 • Fuller V. Crittenden, 9 Conn. Sibley, 21 Pick. (Mass.) 101 ; 
 401. Stamper v. Hayes, 25 Ga. 546. 
 
 ' Nelson v. Blanchfield, 54 Barb.
 
 672 EVIDENCE. [chap. XVIII. 
 
 the balance, upon the receipt from B. of the amount due for 
 the work ah-eady done, gave him a recci^jt " in full satisfac- 
 tion of the work already done under the contract, which is 
 herelty canceled,'' it was held that A. was not thereby pre- 
 cluded I'rom recovering of B, the damages sustained by him 
 by reason of the breach of the contract, for the reason that 
 he had only been paid what wjis due him for work done, and 
 consequently there was no consideration for the release of 
 damages for the breach of the contract ;' but, if there is any 
 consideration, however slight, the exact value of which can- 
 not be measured, the receipt will be operative, and a bar to 
 all claims which it purports to dischaige. Thus, a i-eceipt 
 in which it is stated that the person giving it has received a 
 horse, in full of all tlemands to date, or any other property, 
 the value of which is not expressed in the receipt, will 
 operate as a discharge of all demands properly embraced 
 Avithin the provisions of the receipt, even though it is ap- 
 parent that the value of the property received is very much 
 less than the demand or demands discharged. So a receipt 
 may be shown to have been obtained by duress.^ But a 
 receipt under seal operates as a release of all demands fairly 
 embraced within its terms, and cannot be attacked except 
 upon the ground of fraud ; and parol evidence is not admissible 
 to defeat, alter or vary its effect, at common law, and the ques- 
 tion of fraud is for the jury, and not for the court to deter- 
 mine.^ Such a receipt operates as a release, and being in 
 the nature of an executed contract under seal, if there are 
 any elements of mistake or misconception in it, the remedy 
 is in a court of ecpiity either for a reformation of the con- 
 tract, or to set it aside. So a receipt given in full for unliq- 
 uidated claims or damages, as damages for personal injuries 
 received, if free from fraud, is in the nature of a release, and 
 is a ])ar to any action upon the original claim." 
 
 ' Foersch v. Blackwell, 14 Barb. id. 403 ; Coon -v. Knapp, 3 N. Y. 
 
 (N. Y.) 607. 375. 
 
 » Illinois Central R, R. Co. v. * Coon v. Knapp, 3 N. Y. 375 ; 
 
 Welch, 52 111. ]S3. Brown v. Cambridge, 3 Allen 
 
 ^ Eastman v. Wright, 6 Pick. (Mass.), 474. 
 (Mass.) 316 ; Loring v, Brackett, 3
 
 SEC. 205.J PRIMA FACIE EVIDENCE. 673 
 
 The seal of the general land office, and the signature of 
 the commissioner thereof, ^rima facie prove themselves.^ 
 Kecitals of title in an old deed, where possession accompa- 
 nied the deed, are prima facie evidence against any person 
 claiming title under the grantor previous to such deed.^ The 
 possession of checks, orders or drafts by the corporation or 
 person on whom they are drawn is prima facie evidence 
 that they have been paid.^ A settlement Ijetween two par- 
 ties IS, prima facie evidence of a settlement of all demands, 
 but may be rebutted, and is no bar to a recovery for any 
 matters not embraced therein.^ An indorsement on a note 
 is prima facie evidence of payment of the amount desig- 
 nated.^ A receipt in full of all demands \s prima facie evi- 
 dence of payment of all notes, accounts and claims existing 
 at the time of the receipt.^ The acceptance, by a municipal 
 corporation, of work which it was authorized to contract for, 
 Ss> prima facie evidence that the work is completed.'^ Proof 
 of an entry upon another's premises \s prima facie sufficient 
 to support an action of trespass, and throws the onus upon 
 the defendant of proving that his entry was lawful." 
 
 Every person is presumed to know the contents of all 
 papers to which he himself subscribes, or authorizes another 
 to sign his name, whether he can read or write, and the pro- 
 duction of an instrument thus signed m prima facie evidence 
 of all it contains,^ and that he knew the legal effect 
 thereof ; '" but such evidence may be rebutted by proof of 
 fraud or of undue advantage." 
 
 ' Harris v. Doe, 4 Blackf. (Ind.) ' New Orleans v. Halpin, 17 La. 
 
 369. Ann. 185. 
 
 * James v. Letzler, 8 W. & S. * Belverman v. State, 16 Texas, 
 (Penn.) 192. 130. 
 
 ' Union Canal Co. v. Lloyd, 4 W. * Harris v. Story, 2 E. D. Smith 
 
 & S. 393. (N. Y. C. P.), 363 ; Bank v. Kim- 
 
 * Nichols V. Scott, 12 Vt. 47. ball, 10 Cush. (Mass.) 373 ; Clem. v. 
 " Graves v. Moor, 7 Monr. (Ky.) N. & L. R. R, Co., 9 Ind. 488. 
 
 341. " Mears v. Graham, 8 Blackf. 
 
 ' Marston v. Wilxjox, 3 111. 270. (Ind.) 144. 
 
 " Harris v. Story, ante. 
 
 43
 
 CHAPTER XIX. 
 
 DOCUMENTARY EVIDENCE. 
 
 SECTION. 
 
 207. Classes of. 
 
 208. Legislative Journals. 
 
 209. Foreign Statutes. 
 
 210. Private Statutes. 
 
 211. Common Law of a State or Country. 
 
 212. Church Registers, Etc. 
 
 213. Ship Registers. 
 
 214. Patents for Inventions. 
 
 215. Patents for Lands. 
 
 216. Copies. 
 
 217. Instances in which Certified Copies, etc., have been Held 
 
 Admissible. 
 
 218. Certificates by Executive Officers. 
 
 219. Certificates by Clerks. 
 
 220. Certificates by Judicial Officers. 
 
 221. Notarial Certificates. 
 
 222. Marine Protests and Surveys. 
 
 223. Consular Certificates. 
 
 224. Certificates l)y Appraisers, Inspectors, Etc. 
 -225. Certificates by Land Officers. 
 
 226. Surveys of Land. 
 
 227. United States Departmental Records. 
 
 228. Land Office Records and Papers. 
 
 229. Custom-house Records. 
 
 230. State Land Office Papers. 
 
 231. State Gi-ants. 
 
 232. State Records. 
 
 233. Verdicts. 
 
 234. Judgments. 
 
 235. Proof of Foreign Judgments, Etc 
 336. Between what Parties Admissible. 
 
 237. Judgment Conclusive of Fact Recorded.' 
 
 238. Not Conclusive on Immaterial Averments. 
 
 239. Effect of Judgment. 
 
 240. Distinction Between Judgments of Courts. of Exclusive and 
 
 Concurrent Jurisdiction. 
 
 241. Judgments In Rem. 
 
 242. What Parties Bound by a Judgment. 
 
 243. Proceedings Between Strangers. 
 
 244. Rule with Reference to Real and Nominal Parties.
 
 SEC. 208.] DOCUMENTARY EVIDENCE. 675 
 
 SECTION. 
 
 245. Rule as to Judgment in Ejectment. 
 
 246. "When the Parties are the Same, but not Suing in the Same 
 
 Right. 
 
 247. How far a Judgment Concludes a Party. 
 
 248. Eftect of Foreign Judgments. 
 
 249. Instances in which Foreign Judgment may be Avoided. 
 
 Sec. 207. Classes of. 
 
 Writings may be divided into two classes, private and 
 public. The former are those which are the property and 
 in the custody of individuals or corporations, and the lat- 
 ter are those which are the property and under the control 
 of some department of the government, as legislative jour- 
 nals, records of courts, statutes, proclamations, ordinances, 
 etc., and other writings of a similar character. The mode 
 of proving the contents of these documents when they be- 
 come material, is of considerable importance to the practi- 
 tioner, and the object of this chapter is to furnish that 
 information. 
 
 Sec. 208. Legislative Journals. 
 
 Where it becomes material to establish what was done by 
 a legislative body at a particular session res[)ecting a certain 
 matter, it ma}^ be done by producing the journals them- 
 selves, where this can be done, or the production of a printed 
 cop3^ thereof published by authority of the State, ^ or by a 
 copy thereof duly certified by the Secretary of State. 
 These journals being the record of the doings of a legislative 
 body, import absolute verity, and cannot be impeached 
 except by the legislature itself? Thus where the journals 
 
 'Root 1). King, 7 Cow. (N. Y.) lative body were printed by author- 
 
 613. The court should inspect these ity. Root v. King, 7 Cow. (N. Y.) 
 
 journals as it would any other rec- 613. But a printed copy of public 
 
 ord. Coleman t). Dobbins, 8 Ind. documents proved to have been 
 
 156 ; Albertson v. Robinson, 1 Dall. transmitted to a legislative body, 
 
 (Penn.) 9. Journals of Congress, and printed by the printers to such 
 
 printed, have been admitted with- body, are admissible without other 
 
 out other proof of their authenticity, authentication. Radcliffe v. United 
 
 Com. ■». Dedougchamps, Whai t. Dig. States Ins. Co., 7 Johns. (N. Y.) 50. 
 
 280. But generally proof is required * McCullough v. State, 11 Ind. 424. 
 that the printed journals of a legis-
 
 676 EVIDENCE. fCHAT. XIX. 
 
 show only that an ortlcr was reported, it was held that parol 
 evidence was not aihnis^sible to show that it was passed by 
 that body.' But in Mississippi it is held that such journals 
 do not import absolute verity, and are not eoncln.sive of the 
 tacts stated in tlieni.^^ Indeed it is heUl that they are ad- 
 missible to overturn even the statute roll f but in this case 
 it was held that where there is a discrepancy between the 
 manuscri[)t and the printed minutes of the proceedings of 
 the legislature, the maiui.s(.-rii)t will prevail. The journal 
 of a legislative body is admissible to show that a l)ill which 
 has been certified by the presiding officer of a legislative 
 body as duly passed was not in tiict passed, thus overthrow- 
 ing the j^rzma /acite and presumptive effect of such certifi- 
 cate,* or even when certified In' the presiding officers and 
 .signt'd by the governor.^ Says Mr. Phillips :« "These are 
 the docuinents peculiarly appropriated to the purpose of 
 preserving the memory of such proceedings, which do not 
 appear capable of other authentic or satisfactory proof." 
 These journals have been admitted where limitations upon 
 peerages have been recited therein, without other proof of 
 their authenticity," and generally the journals of cither branch 
 of a legislative body are admissible to prove what was done 
 by that body in reference to a particular matter, where it is 
 the duty of the officers thereof to keep a faithful record 
 
 ' Covington v. Ludlow, 1 Met. v. Supervisors, 8 N. Y. 318 ; Jones 
 
 (Ky.) 295. V. Hutchinson, 43 Ala. 721. See, 
 
 » Gi-een v. Welter, 32 Miss. 650. however, holding- that the validity 
 
 ' Chicot County v. Davies, 40 of an invalid statute duly certified 
 
 Ark. 206. See also State v. McClel- by the presiding officers of a legis- 
 
 latid (Neh.), 25 N. W. Rep. 77. lative lx)dy cannot be impeached by 
 
 ♦ Stat'^ 7). McClelland, ara^^. the journals: Pacific R. R Co. v. 
 
 ' Spangler v. Jacoby, 14 111. 297 ; The Governoi-, 23 Mo. 353. See also 
 
 People V. Mahoney, 13 Mich. 482 ; Fouke v. Fleming, 13 Md. 392; 
 
 State-?). Hastings, 24 Minn. 78 ; Cole- Clare D. State, 5 Iowa, 50H ; Green 
 
 man v. DoT)bins, 8 Ind. 156 ; South- v. Welter, 32 Miss. 651 ; Evans v. 
 
 warkBank?). Com.,26Penn. St.446; Bracom, 30 Ind. 514; People V. 
 
 People V. Stame, 35 111. 121 ; People Devlin, 33 N. Y. 269 ; Pangborn v. 
 
 V. Purdy, 2 Hill (N. Y.), 31 ; Berry Young, 33 N. J. L. 29. 
 
 V. Baltimore, &c., R. R. Co., 41 Md. " 2 Phillii)s' Ev. 276. 
 
 446. 0]iinions of Justices, 35 N. H. ' Lord Duffreiu's Case. 4 C. & F. 
 
 579; 52 id. 522; 45 id. 607. People 468.
 
 SEC. 209. j DOCUMENTARY EVIDENCE. 677 
 
 thereof.^ Proclamation issued by the President of the 
 United States, or tlie governor of a State, published by 
 authority, reciting a certain condition is things, is evidence 
 that such condition of things existed,^ as of the surrender 
 and capitulation of an island,^ or indeed of any matter 
 which is peculiarly within the knowledge of the government. 
 Thus the date of the declaration of war may be proved by 
 the declaration of the ambassador transmitted by him to the 
 Secretary of State and printed , by authority of the govern- 
 ment.* But the fact that a ratification of a blockade of a 
 certain port has been printed by authority does not raise a 
 presumption that a certain person knew of the blockade, 
 but such knowledge must be proved as a fact.^ In England, 
 the public acts of the government published in the Gazette, 
 may be proved by the Gazette.^ But in this country we 
 have no official journals of the government, and puljlic acts 
 published by the government printer l)y authority occupy the 
 same position as evidence as their publication in the Gazette 
 does in England. Such publications, however, are not evi- 
 dence of private titles or interests or of any matter which 
 has no reference to government concerns.^ 
 
 Sec. 209. Foreign Statutes. 
 
 The statute law of another State or country must be 
 produced, but the connnon or unwritten law may be proved 
 by parol/ otherwise they will be presumed to be the same 
 as those of the former.^ 
 
 ' R. V. Franklin, 17 How. St. Tr. « Robinson v. Clifford, 2 Wash. 
 
 636. (U. S. C. C.) 1 ; United States v. 
 
 " R. V. Holt, 5 T. R. 443 ; Picton's Ortega, 4 id. 53. Foreign laws and 
 
 Case, 30 How. St. Tr. 493 ; Judd's regulations, unless shown to be in 
 
 Case, 8 St. Tr. 212. writing, may be proved by parol, 
 
 ' Picton's Case, ante. especially those relating to such. 
 
 * Thelluson 1). Colling, 4 Esp. 266. Livingston v. Marine Ins. Co., 6 
 ■ " Harratt v. Wise, 9 B. & C. 712. Cranch (U.S.), 274 ; Kenny v. Clark- 
 
 • R. V. Holt, 5 T. R. 442 ; Kir- son. 1 Johns. (N. Y.) 385 ; McRae v. 
 wan V. Cockburn, 5 Esp. 283 ; Gra- Mattson, 13 Pick. (Mass. ) 53. 
 
 Tiam V. Hope, Peake, 142 ; Munn v. ' Davis v. Rogers, 14 Ind. 424 ; 
 Baker, 2 Starkie, 255. Hemphill v. Bank, 14 Miss. 44. 
 
 '' R. V. Holt, ante; Kii-man v. 
 Cockburn, 2 Esp. 233.
 
 G78 EVIDENCE. [CIIAP. XIX. 
 
 The United States and circuit courts will take judicial 
 notice of the statutes, laws and usages of the several States 
 without requirhig the same proof as of foreign laws.' 
 
 Statutes purporting to lie puhlisiicd by authority of a 
 State are adniissil)le to [)rovc what the statute law of such 
 State is upon a given matter,^ and the burden of discredit- 
 ing them is u[)()n the ' party against whom they arc offered.' 
 Printed statutes, purporting to be printed In' authority of a 
 State or country, are, however, only jwima facie proof, and 
 may be discredited by a copy of the statute duly certilied 
 by the secretary of State, nnder the seal of the State ; and 
 in some of the States an exemplified cop}' of the statute 
 must l)e produced.* In other States, even the printed stat- 
 ute of a foreign country may l)e used in evidence if a Avit- 
 ness is produced who swears that he received them from the 
 king's printer,^ or where it is shown that they have been 
 sanctioned l)y the executive and judicial officers of such 
 country.^ But generally, in all of the States, a copy of the 
 statutes of a State purporting to be printed " by authority" 
 of the State arc received as evidence, and if they are inaccu- 
 rate the otlicr party must show it. A statute and the pre- 
 aml)le is only conclusive as to the law if any facts are 
 recited therein, as if the preamble states " whereas, the 
 inhal)itants of Windsor county are now in a state of insur- 
 
 ' Owings V. Hull, 9 Pet. (U. S.) H. 448; Kean v. Rice, 12 S. & R. 
 
 COT; Hinde v. Vattier, 5 Pet. (U. (Penn.) 203; Allen v. Watson, 2 
 
 y.) 398. ■ Hill (S. C), 319; Martin v. Payne, 
 
 » Blight V. White, 8 Mo. 421; 11 Tex. 292; Ellis y. Wiley, 17 Tex. 
 
 Toulandon v. Lachenmeyer, 6 Abb. 134 ; State v. Abbey, 29 Vt. 60. 
 
 Pr. (N. Y.) N. S. 215 ; State v. » Emery v. Bean, 26 N. H. 152. 
 
 State, 1 D. Chip. (Vt.) 303 ; Mullen ^ Packai-d v. Hill, 2 Wend. (N. 
 
 V. Morris, 2 Penn. St. 85; Cox v. Y.) 411. But under the law of 1868 
 
 Robins, 2 S. & P. (Ala.) 91 Bark- the authorized printed statutes of 
 
 man v. Hopkins, 11 Ai'k. 1.57; Cam- another State may now be used, 
 
 panet ■?). Jernegan, 5 Blackf. (Ind.) Persee, &c.. Paper Works v. Wil- 
 
 375; Vaughan v. Griffiths, 10 Ind. lett, 19 Abb. Pr. (N. Y.) N. S. 215; 
 
 353; Thomas v Davis, 7 B. Mon. State v. .Jackson. 2 Dev. L. (N. C.) 
 
 (Ky.) 227; Owen v. Bagle, 15 Me. 563; Wilson v. Leuzier, 11 Gratt. 
 
 147; Merrifield v. Robbins, 8 Gray (Va.) 477. 
 
 (Mass.), 150 ; Braughan v. Graham, " .Jones v. Maffit, 5 S. & R. (Penn.). 
 
 2 Miss. 220 ; Stewart v. Swanzy, 23 523. 
 
 Miss. 502 ; Lord v. Staples, 23 N. ' Owen v. Bagle, 15 Me. 147.
 
 SEC. 209.] DOCUMENTARY EVIDENCE. 679 
 
 rectioii, etc.," the statute is not conclusive as to the fact, 
 and evidence is admissible to show that no such condition 
 existed ; and the same rule prevails as to any recital of 
 facts, ^ and as to any statute, whether foreign or domestic. 
 
 The facts recited in the preamlile of a private statute may 
 be evidence between the State and the applicant or party for 
 whose benefit the act passed. But as between the applicant 
 and another individual, whose rights are aflected, the facts 
 recited ought not to be evidence.^ In the case last cited, 
 the court, in their opinion in this case, observe : " We well 
 know that such applications are frequently made ex jMvte, and 
 if the}^ are not entirely so, b*ut the party affected appears and 
 resists the statute, it is very questionable whether the facts 
 recited ouoht to be evidence in a future contest. The leofis- 
 lature, in all its inquiring forms by connnittees, make no 
 issue, and in tbeir discretion may or may not coerce the 
 attendance of witnesses or the production of records, and are 
 frequently not bound by the rules of evidence applicable to 
 an issue properly formed, the trial of which is an exercise of 
 judicial power. Once adopt the prhiciple that such facts 
 are conclusive or even prima facie evidence against private 
 rights, and many individual controversies may be prejudged 
 and drawn from the functions of the judiciary into the vor- 
 tex of legislative usurpation. The appropriate functions of 
 the legislature are to make laws to operate on future inci- 
 dents, and not the decision of or forestalling rights accrued 
 or vested under previous laws. Hence such a preamble as 
 the present ought, in such a controversy, to be taken to 
 answer the purpose for which it was intended ; that is, an 
 apology for the passage of the act, and the reason why the 
 legislature so acted. Such a preamble is evidence that the 
 facts were so represented to the legislature, and not that they 
 really existed." Nor will an act, private in its nature, be 
 admissible in evidence as against strangers, although it con- 
 tain a clause declaring " that it shall be deemed and taken 
 to be a public act, and shall be judicially taken notice of 
 
 ^ R. vi. Greene, 6 Ad. & El. 548. ° Elmendorf v. Carmichael, 3 Litt. 
 
 (Ky.) 472, 480.
 
 680 EVIDENCE. [chap. XIX. 
 
 without ])cing specially pleaded." Such a clause relates 
 merely to the forms of pleading, and does not vary the 
 nature and operation of the act.^ In a New York case,^ the 
 court held that a statute passed to contirm certain official 
 acts of a justice of the peace, statini;^ that he became a tavern 
 keeper on a particular day, was not evidence of that fact as 
 a<yainst a stranger. The legislature has no jurisdiction to 
 determine facts touching the rights of individuals. So of 
 various other defenses, founded upon statutes — as, for 
 instance, the statute of limitations, which the defendant can- 
 not avail himself of under the general issue.^ 
 
 Sec. 210. Private Statutes. 
 
 Except whore otherwise provided by statute, private acts 
 of the legislature, as charters of private corporations, etc., 
 must be proved, which may be done either by a copy of the 
 act duly certified by the secretary of State, or in most of the 
 States by the printed statutes of the State ;^ but of all public 
 statutes of the State in which the court is held, or which are 
 declared to be so in the act itself, the court will take judicial 
 notice, and no proof in reference thereto is required, and in 
 some of the States it is provided by statute that all private 
 acts printed in the pul)lic statutes or by authority of the State 
 shall be received as evidence thereof.^ 
 
 Sec. 211. Common Law of a State or Country. 
 
 The unwritten law of another State or country, when re- 
 quired to l)e proved as a fact in a case, cannot generally be 
 proved by the printed reports of the decisions of its courts, 
 but must be proved by witnesses learned in the law of the 
 State.^ But in some of the States by statute," such reports 
 
 ' Brett V. Beales, 1 M. & M. 421, S.) 317 ; Baring- v. Harmon, 13 Me. 
 
 425. 361. 
 
 * Parmelee v. Thompson, 7 Hill ' Baring- v. Harmon, 13 Me. 361 ; 
 (N. Y.), 77. Walker v. Armstrong, 2 Kan. 198. 
 
 ^ Levi V. Gadsbury, 3 Cranch (U. * Gardner v. Lewis, 7 Gill (Md.), 
 
 S. C. C), 180. 377. 
 
 * Bank v. Wallaston, 3 How. (Del.) ^ Lockwood v. Crawford, 18 Conn. 
 90 ; Leland v. Wilkinson, 6 Pet. (U. 361 ; Penobscot. &c., R. R. Co. v. 
 
 Bartlett, 12 Gray (Mass.), 244.
 
 SEC. 212.] DOCUMENTARY EVIDENCE. 681 
 
 m-G made admissible. In the appellate courts, such reports 
 are always accepted as evidence of what the courts of another 
 State have held upon certain questions. 
 
 Sec. 212. Church Registers, Etc. 
 
 Ecgisters kept by (jfficiuls who are required by law to reo-. 
 ister particular transactions occurring in their presence, or 
 who make such memoranda as are incident to the course of 
 public business transacted by them, are sometimes admissible 
 m evidence to establish facts stated therein, ulthoiigh no 
 statutory provision that such registers shall be evidence of 
 the facts contained therein exists, credibility being given 
 thereto because they are made under the sanction of an offi- 
 cial oath or under the duty and responsibility attaching to 
 their official position. To entitle a book to the character of 
 an official register it is not always necessary that it should be 
 required to be kept by an express statute, nor even that the 
 nature of the office should render the book indispensable. 
 It is sufficient if it is directed to be kept l)y the proper offi- 
 cer.' Thus, in the case last cited the book of accounts kept 
 by the alcalde was held admissible as a register of the acts 
 of that officer and belonging to the office. So parish and 
 parochial registers are evidence that the facts contained 
 therein, iv/n'c/i are by law required to be recorded., occured on 
 the day named therein, as that a marriage between certain 
 parties occured at the time stated in such register.- So the 
 records of Ijirths and deaths kept by a religious society, when 
 proved, are evidence of the time of the birth of a child or the 
 death of a person.-^ But when the original is not of a public 
 nature a sworn copy must be produced. A register book of 
 baptisms is not evidence unless it was made at the time of 
 the fact, or so near thereto as to preclude all idea of collu- 
 sion or misrecollections, and ]jy the minister or his clerk 
 who witnessed the ceremony.* Nor generally are such reg- 
 
 ' Kyburg is. Perkins, 6 Cal. 674. ' Stoever v. "Whitman's Lessee, 6 
 
 ^ Wollaston v. Barnes, 1 M. & M. Binn. (Penn.) 416. 
 386 ; Miner v. Boucham, 15 Johns. * Warren v. Bray, 8 B. & C. 813. 
 (N. Y.) 226; Milford v. Worcester, 
 7 Mass. 48.
 
 682 EVIDENCE. [chap. XIX. 
 
 istcrs evidence of any fact not required to be recorded in 
 them, or which wjis not witnessed by the person muking the 
 eutry.^ Thus, an entry in a baptismal register is evidence of 
 the date of baptism, but it is not evidence of the date of 
 birth, even though it is stated therein.^ But such a register, 
 used for the purpose of proving the place of baptism, may 
 also form a part of a chain of evidence to prove the birth 
 of the person baptized within a certain parish, as where it is 
 shown by evidence dehors the register that the child was 
 very j^ouug when baptized, although the register is silent 
 upon that point.^ And in all cases evidence dehors the reg- 
 ister is necessary to identify the parties.^ In an English 
 case,^ in which an issue out of chancery as to whether a cer- 
 tain person was a legitimate child, a l)aptismal register, in 
 Avhich such person was described as "illegitimate," was ad- 
 mitted by Alderson, B., as affording some evidence of the 
 fact. An entrance in a register which does not purport to 
 be of a fact of which the person making it had knowledge, 
 is not admissible as an entry of baptism in which the party 
 is "said to be born in 1795.''*^ 
 
 A bishop's register is, in England, evidence of lacts stated 
 in it.''^ But a register of burials kept by the Wesleyan 
 Chapel has been there repudiated as incompetent." A regis- 
 ter of the ])irths of dissenter's children, kept at a public 
 library, is not evidence.^ 
 
 A sworn copy, from the register l)ook, of the ])urials in 
 Christ Church, Philadelphia, has been received in evidence 
 to show the fact of the death of a person and the time.^" 
 
 In Louibiana, the register of baptisms and births is evi- 
 
 ' Birt V. Barlow, Dang. 170. " Cope v. Cope, 1 M. & R. 269. 
 
 ^ Wihen v. Law, 3 Stark. 63 ; " Duins v. Donovan, 3 Hagg. Ecc. 
 
 Duins V. Donovan, 3 Hagg. Ecc. 301. 
 
 301 ; Burghart v. Angenstine, 6 C. ' Arnold v. The Bishop of Bath, 
 
 & P. 690 ; R. V. North Petherton, 5 5 Bing. 316 ; 2 M. & P. 559. 
 
 B. & C. 508 ; R. v. Clapham, 4 C. & * Whittnck v. Waters, 4 C. & P. 
 P. 29. 375. 
 
 ' R. V. North Petherton, 5 B. & 'Ex parte Taylor, IJ. & W. 463. 
 
 C. 508. '0 Lewis ^). Marshall, 5 Pet. (U. S.) 
 * Birt V. Barlow, ante; Draycott 470, 475, 476. 
 
 V. Draycott, 12 Vin. Abr. 89.
 
 SEC. 212.] DOCUMENTARY EVIDENCE. 683 
 
 dence, and it seems, when shown to exist, precludes parol 
 testinlon3^^ An alteration in such baptismal register, by 
 erasing the word " natural," and writing over it the word 
 "legitimate," has no effect in preventing the registry from 
 being used to establish the period of birth, though the alter- 
 ation be not accounted for. Otherwise, however, if the 
 document were offered to establish the legitimacy of the 
 person named. ^ A register of burials is also evidence there ; 
 and where a register of baptisms proved that a child was 
 christened by the name of " Francisco Antonio," and a reg- 
 ister of burials attested the interment of a person named 
 " Francisco," and no question was raised in the inferior court 
 on the point of variance, held, that on appeal the appellate 
 court must consider the one whose death was attempted to 
 be proved to be the person whose death, according to the 
 pleadings, it was important to establish.^ 
 
 In Pennsylvania, a copy of the register of marriages, bap- 
 tisms and liurials, kept in a parish in the island of Barba- 
 does, certified to be a true copy Ijy the rector of the parish, 
 and proved by the oath of a witness, taken before the 
 deputy secretary of the island and notary public (his hand- 
 writing and office being proved), has been received as good 
 evidence of pedigree.^ And a copy of a register of birth 
 and deaths of the people called Quakers, kept in England, 
 proved to be a true one before the lord mayor of London, 
 has also been allowed as evidence in Pennsylvania to prove 
 the death of a person.^ By a statute in that State, the 
 register kept by au}^ religious society of births, marriages 
 and deaths is declared good evidence. The act is silent as 
 to the mode of proof, and therefore the common-law mode, 
 which is by a sworn copy, or the production of the original, 
 must be resorted to. A certified copy, under the seal of the 
 corporation or religious society, is not admissible.^ 
 
 ' Duplessis V. Kennedy, 6 La. * Kingston v. Lesley, 10 S. & R. 
 281, 242 ; Fletcher v. Cavalier, 4 (Penn.) 383. 
 Mill. (La.) 267. * Hyam v. Edwards, 1 Ball. 
 
 ' Fletcher fj. C&vidier, supra. (Penn.) 2. 
 
 ' Cells V. Oriol, 6 La. 403. " Stoever v. "Whitman, 6 Binn. 
 
 (Penn.) 416.
 
 684 EVIDENCE. [chap. XIX. 
 
 Ill Maine, a book was produced by a town clerk, which 
 had been received by him from his predecessor in office jis 
 an official record ; it purported to contain a record ot" births 
 and marriages in such town, l)ut contained no title or attes- 
 tation of its character, nor any certificate showing by whom 
 the entries in it were made ; and held, that it was proper 
 prima facie evidence to prove the age of a person named 
 in it.^ A copy from the records of the town is there admis- 
 sible.2 
 
 In New York, sworn copies of such registers, Avhcn the 
 original is of a public nature, have been held admissible.^ 
 
 In North Carolina, a registry of births, marriages and 
 burials, kept pursuant to the statute, is legal evidence of 
 marriages, liirths, etc., especially on questions of pedigree ; 
 and the court lay it down as a general rule that a l)ook kept 
 by public authority is necessarily evidence of the facts re- 
 corded in it.* 
 
 In a New York casc,^ a sworn copy of the records of the 
 town of Stonington, Connecticut, was held admissible in 
 New York, on a question of pedigree. In Ohio, where the 
 defendant, on a trial in ejectment, ottered the deposition of 
 the town clerk of New Milford, Connecticut, to prove the 
 correctness of a copy of the records of that town, showing 
 the time of the defendant's birth, the court held that it 
 must be further shown that the record copied was kept 
 under the authority of law ; that a sworn copy of a private 
 paper is nothing without proof of the original being exe- 
 cuted, and until it was proven that the paper copied l)y the 
 clerk in this case as a record was legally entitled to that 
 character it was inadmissible.^ 
 
 - Summer v. Sebec, 3 Me. 223. * Jaycock v. Gilliam, 3 Murph. 
 
 See Martin v. Gunby, 2 H. & J. (N. C.) 47, 52. 
 
 (Me.) 248. ^ Miner 1). Boneham, ante. 
 
 * Wedgwood's Case, 8 Me. 7.5. * Richmond v. Patterson, 3 Ham. 
 
 ' Bog-ert «. King, 5 Cow. (N. Y.) (Ohio) 368. 
 237 ; Miner v. Boneham, 15 Johns. 
 (N. Y.) 226. 
 
 i
 
 SEC. 213.] DOCUMENTARY EVIDENCE. 685 
 
 Sec. 213. Ship Registers. 
 
 The effect of the registers of ships is of a different nature 
 from that of parish registers. To give them the effect of 
 proving the facts stated in them, would enable parties to 
 make evidence for themselves ; the entry not being of any 
 transaction of which the public officer who makes the entry 
 is conusant. The entry, therefore, or the absence of it, is a 
 fact to be proved, and does not furnish evidence of any other 
 fact. Thus, the register or certificate is not j)nma facie evi- 
 dence of title in favor of the owner ;^ nor against him, unless 
 proved to have been made with his consent, or to have been 
 recognized by hini.^ But the register and certificate of reg- 
 ister are conclusive evidence of want of title against those 
 who are not named in the register.^ A British register de- 
 scriljino; a vessel to be British built is not evidence of that 
 fact." The States severally have no right to require the 
 owners of steamers navigating their internal waters to file 
 at a seaport the name of the boat and owners, their residences 
 and respective interests, under oath, under penalty of a for- 
 feiture.^ The same principle applies to steam lighters and 
 tow-boats employed in the lower and inner bay of Mobile." 
 But the statue of the State requiring the mortgage of a ves- 
 sel to be acknowledged and recorded in a particular manner 
 is valid, so that a failure to record the mortgage renders it 
 void as against creditors.'^ The register is not a document 
 required b}^ the law of nations as expressive of a ship's 
 national character,** but is of local or municipal regulation, 
 
 * Flower v. Young, 3 Camp. 241 ; Martin, 4 Camp. 90 ; Robertson v. 
 
 Pirie v. Anderson, 4 Taunt. 652. French, 4 East, 136 ; Hubbard v. 
 
 " Tinkler v. Walpole, 14 East, 226. Johnstone, 3 Taunt. 177 ; Thomas v. 
 
 See also Eraser t\ Hopkins, 2 Taunt. Foyle, 5 Esp. 88. 
 
 5 ; Cooper v. South, 4 id. 802 ; Curl- * Reusse v. Myers, 9 Camp. 475. 
 
 ing V. Robertson, 7 M. & G. 336 ; " Sinnot v. Davenport, 22 How. 
 
 Young V. Brander, 8 East, 10 ; Jen- (U. S.) 227. 
 
 nings V. Griffiths, Ry. & M. 42 ; Cox ' Foster v. Davenport, 22 How. 
 
 V. Reid, id. 199 ; M'lver v. Hiunble, (U. S.) 244. 
 
 16 East, 169. ' iEtna Ins. Co. v. Aldrich, 26 N. 
 
 " Camden v. Anderson, 5 T. R. Y. 92. 
 
 709 ; explained in Tinkler v. Wal- '* Cheminant v. Pearson, 4 Taunt, 
 
 pole, 14 East, 226 ; Marsh v. Robin- 367. 
 son, 4 Esp. 98, And see Teed v.
 
 086 EVIDENCE. [chap. XIX. 
 
 and the object of it has been said to be to show the character 
 of the vessel, and entitle her to the advantages secured by 
 law to the vessels of our own countr}-.^ Transfers of ships, 
 it seems, in England, are declared void unless certain form- 
 alities prescribed by the registry acts are pursued. But 
 there is no corresponding provision in the act of congress.^ 
 The effect and competency of the register of a vessel as evi- 
 dence has been considered in several cases in the courts of 
 this country. Our laws recognize the possibility of the reg- 
 ister's existing in one name Avhile the ownership is in another. 
 The ownership and character of a vessel are matters in pais. 
 The register is not an exclusive test of either. Hence on an 
 indictment for piracy, the character of the vessel plun- 
 dered may be shown without any effort to produce her certi- 
 ficate of registry.^ In an action to recover back a premium 
 of insurance on the ground that the plaintiff had no interest 
 in the vessel at the time of insurance, the register, which 
 was in the name of other persons, was held not even prima 
 fade evidence to prove that the plaintiff was not owner.* 
 So where a person purchased a vessel, and took immediate 
 possession, but it was agreed that no l^ill of sale was to be 
 executed till the purchase-money was all paid, held that the 
 vendor was not liable for repairs made to the vessel by direc- 
 tion of the master on the credit of the purchaser, and this 
 though the register still stood in the name of the vendor. 
 That circumstance, the court say, did not in any manner de- 
 termine the ownership.^ And so, in Massachusetts, where the 
 register was relied on by underwriters in an action on a policy 
 of insurance for the purpose of showing that two of the in- 
 sured had no legal or insurable interest in the vessel.^ In 
 Connecticut, however, though the register of a vessel is not 
 conclusive of ownership, yet where a person by such a reg- 
 
 ' Shai-p 7). United Ins. Co., 14 ^ United States v. Furlong, 5 
 
 Johns. (N. Y.) 204. Wheat. (U. S.) 184, 199. 
 
 " Colson?). Bonzey, 6Me. 474, 477. "Sharp v. United Ins. Co., 14 
 
 See also Bixby v. Franklin Ins. Co., Johns. (N. Y.) 201. 
 
 8 Pick. (Mass.) 86, 88, 89; Birbeck ^ Leonard ?;. Huntington,15 Johns. 
 
 i\ Tucker, 2 Hall (N. Y.), 121 ; Ring (N. Y.) 298. 
 
 v. Franklin, 2 id. 1 ; Wendover v. ^ Bixby v. Franklin Ins. Co., 8 
 
 Hogeboom, 7 Johns. (N. Y.) 308. Pick. (Mass.) 86.
 
 SEC. 213.] DOCUMENTARY EVIDENCE. 687 
 
 ister made on his own oath appears to be the unconditional 
 owner ; lield, by four judges against three, that it must be 
 considered as a declaration to the world that he is owner, 
 and he becomes liable, of course, for necessary disbursements 
 in repairs and supplies procured by the master during the 
 voyage.^ Tlie register cannot be rendered evidence of owner- 
 ship in favor of the person who procured it to be made, 
 though it may be against him.^ In an action against owners 
 of a vessel for a violation of a contract made l)y the plaintiffs 
 for the transportation and delivery of goods with the master, 
 a cop3^ of the register, which purported to have heen made 
 on the oath of all the defendants that they were the owners, 
 was held good evidence of their Ijeing such, and this on proof 
 merely that the copy was a copy of the record in the custom- 
 house, though the witness could not say whether the record 
 was the original or a copy.^ It is jjrima facie evidence in 
 these and simihir cases, but is not conclusive.* The register 
 is used as evidence in showing a fultillment of warranty as 
 to the character of property in actions upon policies of insur- 
 ance.^ And in such cases it has been said that proof that 
 there was a register is ])^'i^na facie evidence of its beiug on 
 board during the voyage.^ The register may be proved by 
 a sworn cop}.^ A copy certified by the collector in whose 
 office it is recorded is not evidenct. He is not authorized to 
 certify, nor intrusted to give out copies-.^ A copy produced 
 from the treasury department of the United States, where 
 the original is required to be tiled after a vessel is condemned, 
 certified by the register of the department, whose official 
 character was attested by the secretary under the seal of the 
 department, has been held competent evidence in the case of 
 
 ' Starr v. Knox, 2 Conn. 215. low v. Union Ins. Co. 3 S. & R. 
 
 ^ Ligon -M. Orleans Nav. Co., 7 (Penn.) 133. 
 
 Mart. (La.) 682. ' Coolidge v. New York Firemen 
 
 ' Hacker v. Young, 6 N. H. 95. Ins. Co., 14 Johns. (N. Y.) 308, 315 ; 
 
 * Colson V. Bonzey, 6 Me. 474; United States?;. Johns, 4 Dall. (U. S.) 
 
 Cox -». Reid, 1 C. & P. 602 ; Hussey 415 ; Hacker v. Young, 6 N. H. 95. 
 
 v. Allen, 6 Mass. 163. " Coolidge v. New York Firemen 
 
 ^ Catlett V. Pacific Ins. Co.. 1 Ins. Co., 14 Johns. (N. Y.) 308. See 
 
 "Wend. (N. Y.) 561. United States v. Johns, 4 Dall. (U. 
 
 « 1 Wend. (N. Y.) 578. See Lud- S.) 415 ; Woods -u. Courter, 1 id. 141.
 
 688 EVIDENCE. [chap. XIX. 
 
 a condemned vessel.^ It seems that a deputy collector's cer- 
 tificate of eniollnicnt is conclusive of the facts certified.* 
 The commission of a vessel or person granted by a foreign 
 government may be proved by the conunission itself under 
 the seal of such government.^ The seal, in general, proves 
 itself, l)ut otherwise as to the seal of a new government un- 
 acknowledged ])y the United States. The fact that the i)er- 
 son or vessel was in the employ of such imacknowledged gov- 
 ernment may be shown Avithout proving the seal.'' Where 
 the commission has been lost, its previous existence on board 
 may be shoAvn b}' parol evidence.^ The log-book of certain 
 vessels is, in the United States, made evidence l)y act of con- 
 gress of the fact of desertion by a seaman. It is, however, 
 never conclusive, but only ^9?7';?irt facie evidence, and may 
 be rebutted.^ The log-book, in general, ought not to be ad- 
 mitted to establish any facts save such as are contemplated 
 by the act of congress.'^ It is in no sense, per se, evidence, 
 except in certain cases provided by statute. It does not 
 import legal verity, and in ever^'' other case is mere hearsay 
 not under oath. It may be used against persons, however, 
 to whom it should be brought home as having a concern in 
 writing or directing what should be contained therein, to 
 contradict their statements or their defense. But it cannot 
 be I'eceived as evidence for such persons, or others, except by 
 force of a statute rendering it so.^ On an indictment of 
 several seamen for a revolt and confining the master, they 
 defended on the ground (among others) that the master was 
 insane. To rebut this, the prosecutor offered the log-book, 
 kept by the master during the period of his alleged derauge- 
 
 ' Catlett V. Pacific Ins. Co., 1 ^ Jones v. The Brig Phcenix, 1 
 
 Wend. (N. Y.) 561. Pet. Aclm. Dec. 201 ; Malone v. The 
 
 * Hinckley v. Bridgham, 46 Me. Mary, id. 140 ; Thompson v. The 
 450. Ship Philadelphia, id. 210; Doug- 
 
 ' The Estrella, 4 Wheat. (U. S.) las v. Eyre, 1 Gilp. (U. S. C. C.) 147, 
 298. 152, 153, 154; Oi-ne v. TowTisend, 4 
 
 * United States v. Palmer, 3 Mason, 541. 
 
 Wheat. (U. S.) 634, 635. ' Jones v. The Brig Phoenix, 
 
 ' The Estrella, 4 Wheat. (U. S.) sn-pra. 
 
 298 ; Rundle ?). Beaumont, 4 Bing. ® Per Story, J., in United States 
 
 537. V. Gilbert, 2 Sum. (U. S.) 77, 78.
 
 SEC. 215-] DOCUMENTARY EVIDENCE. 689 
 
 ment, in which, as he said, he made entries every nio-ht : 
 held, that it was inadniissi))lc.^ An entry in the log-book is 
 indispensable evidence of the fact of desertion, when a for- 
 feiture of wages is insisted, on ; it is necessary, in order to 
 show that no consent was given, and no release was intended 
 by receiving the delinquent again on board, as well as to ascer- 
 tain the fact of desertion generally with greater accuracy.^ 
 
 Sec. 214. Patents for Inventions. 
 
 A duly certified copy of a patent issued by the authority 
 of the government, proves itself, if in due form and pi-operly 
 executed and certified by the proper officer under the seal 
 of his department, and a second or duplicate patent is of as 
 high authority as evidence as the original,^ and the authority 
 even of an "acting commissioner" cannot be questioned in 
 a proceeding to which he in not a partv.^ 
 
 Sec. 215. Patents for Lands. 
 
 A copy of an old land patent which has been for many 
 years recorded in the proper office, is admissible as evidence 
 of title, although it does not appear that it was proved or 
 acknowledged, or that the person signing it, signed it as 
 governor.^ Thus in the case last cited a copy of a patent 
 signed "Samuel Matthers," dated 1658, and recorded in the 
 county court, together with an assignment of it, which as- 
 signment was acknowledged and admitted to record, was 
 held evidence of title in Virginia, although it did not appear 
 that the patent was proved or acknowledged, or that it was 
 signed l)y Matthers, as governor. A complainant alleged in 
 his bill the grant l)y letters patent of the estate claimed in 1705, 
 and afterward, on the introduction of the letters patent by 
 the defendant, objection was made because they did not bear 
 the governor's signature. It was held that the letters patent 
 
 ' United States v. Sharp, 1 Pet. Peck v. Farrington, 9 "Wend. (N. 
 
 (U. S. C. C.) 118, 119. Y.) 44 ; Da\'is v. Gray, 17 Ohio St. 
 
 ' Malone v. The Mary, 1 Peters' 330. 
 
 Adm. Decis. 140 ; Phoebe v. Dig- ^ Woodworth v. Hall, 1 W. & M. 
 
 num, 1 Wash. C. C. Rep. 48 ; Doug- (U. S. C. C.) 389. 
 
 las tj. Eyre, Gilp. (U. S. C. C.) 147. ' Lee v. Lappscott, 2 Wash. (Va.) 
 
 ^ Hines v Greenlee, 3 Ala. 73 ; 276. 
 
 44
 
 f)90 EVIDENCE. [cHAr. XIX. 
 
 Avcrc valid without the governor's signature, l)ccausc, as the 
 royal grants were made by record, and not by deed, and the 
 letters patent were mere transcripts of the record, the great 
 seal affixed to the transcript was evidence of the grant to the 
 public' A certificate of purchase from one of the United 
 States land offices, is evidence of an equitable interest in 
 the purchaser.^ The admission of a patent to be read in evi- 
 dence was olijected to because the letter C, used as a Roman 
 numeral, was interlined ; Init it was admitted, on the pre- 
 sumption that the interlineation was made before issuing the 
 patent ; and the admission was held not to be error.^ As- 
 signments of land certificates, left in the general land office 
 ► to procure a patent, are not adraissilde in evidence as " copies 
 of records," etc., until constituted and recognized as records 
 l)y the issuing of the patent.* An entr}', in the )30oks of 
 the land office, that the balance of the purchase-money was 
 paid by the person "to whom the patent had issued," is 
 evidence that a patent did issue, although the patent is not 
 produced.^ A patent issued on a military land warrant, 
 under the law of a State, is held to he. prima fade evidence 
 that every prerequisite of the law has been complied with.^ 
 A copy of the final certificate of lands, granted to a paten- 
 tee by the United States, and of an assignment indorsed 
 thereon by the patentee, certified .l)y a justice of the peace, 
 who is certified to l)e such by the register of the land office, 
 is not admissible in evidenced Nor is a patent from a State, 
 of lands sold as swamp or ovei-flowed lands, j^irima fade evi- 
 dence as aiiamst a claimant under the government that such 
 lands are swamp and overflowed.'' A patent for United 
 States land, which appears to have been signed by the 
 president, countersigned by the commissioner of the general 
 land office, and verified by the seal of that office, is admis- 
 
 » Bogardus v. Trinity Church, 4 " Willis v. Bucher, 3 Wash. (U. S.) 
 
 Sandf. Ch. (N. Y.) 633. 369. 
 
 * Kay V. Watson, 17 Ohio, 27. ° Bouldin v. Massie, 7 Wheat. (U 
 ^ Stevens 7). Martin, 18 Penn. St. S.) 122. 
 
 ^Qj ' Scott V. Hancock, 3 Stew. & P. 
 
 ♦ Short V. Wade, 25 Tex. 510. (Ala.) 44. 
 
 « Keeran v. Allen, 33 Cal. 542.
 
 SEC. 216.] DOCUMENTARY EVIDENCE. 691 
 
 sible as evidence, without proof of its execution.^ But a 
 surveyor's having admitted an entry, or made a survey, or a 
 patent having issued, in a certain name, is no proof that 
 there is a person bearing that name.'^ Nor is the report of a 
 surveyor, unaided Ijy a certificate of survey or patent, suffi- 
 cient to prove the land, described as belonging to a certain 
 person, to have been in tact surveyed for him, and included 
 in his patent.^ The time when a certificate was returned to 
 the land oftice is matter of fact, determinable by the jury. 
 Thus a i^etition to the judges of the land office by one A., 
 with certain alterations made therein in the handwritinsf of a 
 clerk of that office, since dead, stating when the certificate 
 was returned, was not admitted in evidence to prove at what 
 time it was returned, or to prove that it was returned before 
 a certain period, as the party against whom the testimony is 
 intended to operate did not derive any interest in the land 
 under A.* In an action of ejectment by A. against B., a pat- 
 ent certificate to A.'s legal representatives, without other 
 evidence, cannot be received in evidence, and such certificate 
 is no evidence of title in A.^ Upon issue joined whether A. 
 could have procured a title from the United States to a cer- 
 tain tract of land located by him by virtue of a New Madrid 
 certificate, it was held that a patent and certificate of survey 
 to B. for the same tract is not admissible.^ 
 
 Sec. 216. Copies. 
 
 In most cases, where by statute certain instruments are 
 required to be recorded in a certain manner, a copy thereof, 
 duly certified by the proper recording officer, is admissible 
 in evidence where the contents of the instrument becomes 
 material ; but although an instrument has been in fact re- 
 corded, yet unless it belonged to the class entitled by stat- 
 ute to be recorded its contents cannot be proved by copy,' 
 
 ' Bowser v. Warren, 4 Blackf. * Hammond v. Wai-field, 2 H. & 
 (Ind.)522. J. (Md.) 151. 
 
 ' Finlay v. Humble, 2 A. K. Mar. ^ Mating-ly v. Hayden, 1 Mo. 439 
 (Ky.) 569. 6 Qveen v. M'Girk, 1 Mo 498. 
 
 ' Rice V. Welch, 1 Litt. (Ky.) 74. ' Childress v. Cutter, 16 Mo. 24 ; 
 
 N. Y. Dry Docks v Hicks, 5 Mc-
 
 692 
 
 EVIDENCE. 
 
 [chap. xix» 
 
 although it is lield in some of the cases that with other proof 
 of the execution of the instrument a certified copy thereof 
 may be evidence.' There are lour chisscs of co[)ies, to wit : 
 1st. Exemplifications ; 2d. Ofiice copies ; 3d. Examined 
 copies ; and 4th. Certified copies. 
 
 ExeinpUfmd copies are those which are ceitified under the 
 great seal (State or national), and those which are certified 
 under the seal of the court in which the record may he })re- 
 served. But even an exemi)lified co])y i> not admissible in 
 evidence, unless the instrument is one which is required to 
 be kept or recorded in the department ol" the government in 
 which it is deposited. Thus an exemplified copy of private 
 deeds is not admissil)le, and the same is true of any private 
 document or instrument.^ But an exemplification of any 
 instrumemt. produced from the projjcr custody, is evidence. 
 Thus, an exemplified copy of a conmiission from the gov- 
 ernment has been held to be evidence, although the seal has 
 been lost.^ 
 
 When the right to read an official copy is claimed under 
 a statute declaring such copy evidence, it must appear that 
 all foimalities prescriljed by the statute have been strictly 
 pursued.* 
 
 Indeed, it is held that an exemplified or certified copy of 
 a sealed instrument, need not rejiroduce the seal. Indicat- 
 ing that there was a seal, by the lettei-s " L. S." or the like, 
 is enouofh,^ 
 
 Lean (U. S.), Ill ; Miles v. Knatt, 
 12 G. & J. (Md.) 442; Rashin v. 
 Shields, 11 Ga. 536 ; Thomas v. 
 Grand Gulf Bank, 17 Miss. 201 ; 
 James v. Gordon, 1 Wash. (U. S. C. 
 C.) 323 ; Berry ij. Matthews, 13 Md. 
 537. 
 
 ' Webster v. Harris, 1 6 Ohio, 490 ; 
 Carroll d. Norwood, 1 H. & J. (Md.) 
 167; Parnell v. Knox, 16 Ala. 364 ; 
 Mitchell V. Mitchell, 3 S. & P. (Ala.) 
 81. 
 
 ' BuUer's N. P. 227. 
 
 ^ Beverley v. Craven, 2 M. & K. 
 140. 
 
 * Smith V. United States, 5 Pet. 
 (U. S.) 292 ; Cray ton v. Munger, 11 
 Tex. 234 ; Buthsr v. Dunnagan, 19 
 Tex. 559 ; McDuffie v. (Jreenway, 
 24 id. 625; Dixon r. Thatcher, 14 
 Ark. 141 ; Smith v. Brannan, 13 Cal. 
 107 ; Brown v. Cady, 11 Mich. 536 ; 
 Maxwell v. Light, 1 Call. (Va.) 117. 
 
 " Holbrook v. Nichol, 36 111. IHl ; 
 State V. Bailey, 7 Iowa, 390 ; Red- 
 den V. Overton, 4 Bibb (Ky.), 406. 
 Compare Falcott v. Delaware Ins. 
 Co., 2 Wash. (U. S.) 449.
 
 SEC. 216.] DOCUMENTARY EVIDENCE. 693 
 
 A copy of ail iiistrumeut, within the purview of the stamp 
 act, made previous to the act, may be used in evidence with- 
 out being stamped.^ 
 
 The certificate of a copy from an official record, must be 
 b}^ the officer having the record in charge, and authorized to 
 certify. A copy certified by a stranger or by an officer 
 wholly unauthorized, cannot be received.^ 
 
 It seems, however, that to certify copies is within the or- 
 dinary powers of a duly appointed deputy of the officer 
 named by law to keep the charge of a record ; and a copy 
 certified by a deputy acting for his principal, is good.^ 
 
 The certificate which is allowed to be read in evidence in 
 lieu of the production of papers which have been recorded 
 or deposited in a public office, is a cevlificale to a copy of the 
 instrument. A certificate by the officer that certain facts 
 appear by the records or papers on file in his office cannot 
 be received under statutes authorizing the use of certified 
 oopies.^ 
 
 An office copy is a copy made by an officer having the 
 custody of the document in the same court ; and in the same 
 cause such a cop}" has all the force of the original.^ Thus, 
 an office copy of depositions in chancery are evidence in that 
 court, but they would not be adnnssible in a court of law, 
 without examination,^ except in the trial of an issue out of 
 chancery ;' and it is by no means certain that such copies 
 are admissible, even in that case." To illustrate the rule 
 
 ' Montgomery v. Black, 4 H. & 15 Me. 147 ; Maguire v. Sayward, 
 
 M. (Md.) 391. 22 id. 230 ; English v. Sprague, 33 
 
 " Schnei-tzell v. Young, 3 Har. & id. 440 ; Frute v. McDonald, 27 
 
 M. (Md.) 502 ; Woods v. Banks, 14 Miss. 610 ; Drake v. Merrill, 2 Jones 
 
 N. H. 101 ; State v. Clark, 24 N. J L. (N. C.) 368; Barry v. Rhea, 1 
 
 L. 516; Devling v. "Williamson, 9 Overt. (Tenn.) 345; Davis ■«. Loftin, 
 
 "Watts (Penn.), 311 ; Hockenbury v. 6 Tex. 489; Struthers v. Reese, 4 
 
 Carlisle, 1 W. & S. (Penn.) 282. Penn. St. 129. 
 
 ' Hague V. Porter, 45 111. 318 ; ^ Lucas v. Fulford, 2 Burr. 1179. 
 
 Greason v. Davis, 9 Iowa, 219 ; ® Buller's N. P. 229. 
 
 MooreuFarrow, 3 A. K. Mar. (Ky.) ' Highfield v. Peake, M. & M. 
 
 41 ; Triplett v. Gill, 7 J. J. Mar. 109. 
 
 <Ky.)438; Rives t). Rives, 4 id. 533. * Burnaud i). Nerat, 1 C. & P. 
 
 * Draughan v. The Tombeckhee, 578. 
 3 Stew. (Ala.) 54 ; Olven v. Boyle,
 
 69 t EVIDENCE. [chap. XIX. 
 
 that office copies are only adniissiblc in the same court and 
 in the same cause, it may be said that when a sherifl' is sued 
 for a false return, an office copy of the writ and return, 
 although in the same coint. is not admissible, for the reason 
 that the cause is a dillrrcnt ono.^ But in such cases the 
 copies should be conijjared with the original by a person 
 Avho can swear to their accuracy. 
 
 An examined copy is a copy of a document of a public 
 nature, which is required to be kept, made !)>• some person 
 who can swear to its accuracy, or which has l)cen compared 
 with the oi'iginal, word for word and line by line, by the 
 witness Avho swears to its accuracy. What are public docu- 
 ments in the sense that an examined copy thereof is admis- 
 sible does not clearly appear, and has never been accurately 
 defined, l»ut the term to include all documents in which, 
 the community at large is interested, and which it is desira- 
 ble not to remove from their place of deposit.^ The term 
 would clearly include all records of any court whatsoever, 
 and all registers of births, deaths and marriages ; . registers 
 having reference to shipping and navigation, to trade and to 
 the public health. The rule api:)lies equally to such pui)lic 
 registers kept abroad, as there is a presumption that the 
 foreign authority in whose custody they are would not allow 
 their removal to another country.^ 
 
 An examined copy of a record or other document must 
 be proved by a witness who has examined it line for line 
 with the original, or who has examined the copy while an- 
 other person read the original.'' And it is not necessary for 
 the persons examining to exchange papers and read them 
 alteniately.® The copy must not contain abbreviations 
 which do not occur in the original.'' Where an examined 
 coi)y is put in evidence some account should be given of the 
 original record ; thus, it ought to be shown that the record 
 from which the copy was taken was seen in the hands of the 
 
 ' Pitcher v. King, 1 C. & K. 655. " Rdd ii. Margison, 1 Camp. 469. 
 
 " Lynch v. Gierke, 3 Salk. 154. ^ Gyles v. Hill, 1 Camp. 471, n.;. 
 
 ^ Lanesborough's Claim, 1 H. L. Rolf v. Dart, 2 Taunt. 52. 
 
 C. 510, n. ; Abbott v. Abbott, 29 ' R. v. Christian, C. & M. 388. 
 L. J., P. M. & A. 57.
 
 SEC. 216.] DOCUMENTARY EVIDENCE. 695 
 
 proper officer, or was in the proper place for the custody of 
 such records.^ 
 
 In this country, as a rule, where a document is in the 
 custody of an officer, who is required to keep it, a certified 
 copy thereof made by him is admissible,^ and this obviates 
 to a large extent the necessity for examined copies, although 
 in some of the States such certified copies are not received.^ 
 
 A copy of a policy of insurance, proved to have been 
 compared with the original register on the books of the in- 
 surance company, and notice given to produce the original 
 cannot be read in evidence, the register in the hands of the 
 company should l)e exhibited, after proving the existence of 
 the original policy.* Nor can a copy be received in evidence 
 unless the witness producing it makes oath that he compared 
 the copy with the original.^ And generally a sworn copy is 
 not evidence, if objected to.^ A copy of articles of agree- 
 ment, the authenticity of the original having been often 
 acknowledged by the adverse party, may l)e admitted in 
 evidence on proof of its being a true copy.'^ Sworn copies 
 of a marriage contract, executed in the presence of the lieu- 
 tenant-governor and Spanish commandant of upper Louisiana, 
 with the certificate of the commandant that it was a copy 
 of the original deposited among the archives of said territory, 
 have been held not good evidence of the marriage." Proof that 
 a paper, ofiered as evidence in a cause, is a true copy of the 
 original admitted to be lost, was held to be sufficient to au- 
 thorize its going to the jury.^ When a record has become 
 illegible by lapse of time, the testimony of a witness who 
 had examined and copiedit while legible, is properly received 
 
 ' Adamthwaite D. Synge, 1 Stark. ' Catlin v. Underbill, 4 McLean, 
 
 183 ; 4 Camp. 372. 199. 
 
 " Oakes v. Hill, 7 Pick. (Mass.) * Fitzgibbon v. Kinney, 3 Harr. 
 
 442 ; United States v. Perchman, 7 (Del.) 317. 
 
 Pet. (U. S.) 51; United States v. ' Stevenson v. Dunlap, 7 T. B. 
 
 Johns, 4 Ball. (U. S.) 412. Men. (Ky.) 134. 
 
 ' Hathaway v. Goodrich, 5 Vt. * Chouteau v. Chevalier, 1 Mo. 
 
 65 ; Stephen v. Clements, 2 N. H. 343. 
 
 390. ^ BuUit V. Overfield, 2 Mo. 4. 
 
 * United States v. Shearman, Pet. 
 (U. S. C. C.) 98,
 
 090 KVIDKNCE. [CIIAI". \IX. 
 
 to supply the defect.* An cxiuniiu'tl copy of ;ui instrument 
 Avhicli it is the duty of a public otticer to record and give 
 copies of, may be received in evidence, in any proper case, 
 Avitliout proof of the original.^ Certitied copies are those 
 which are certitied to he accurate by some oHiccr who has 
 the cnstod}- of the original, or of the records thereof, and 
 are only admissible, as a /itle, ichere (he oriyi\ud docunienl is 
 required by law to be recorded or kept in the office over tvhich the 
 jierson cei'tifyinr/ the copy presides. In some of the States, even 
 where by law a document is rcipiired to be recorded in a 
 certain othce, a certified co[)y thereof is held not to be ad- 
 missible in evidence unless the statute makes it so, or a 
 foundation is first laid for the admission of secondary evi- 
 dence. But as in most of the States the rule is otherwise, 
 and as the matter is one with which the practitioner in a 
 given State is presumed to Ije familiar, it will not be practi- 
 cable to refer to the cases or the instances in which this ex- 
 ception to the general rule is held. 
 
 An official copy duly exemplified or certified, and within 
 the limits authorized by a statute, is received an prima facie 
 evidence of its contents, and of all the circumstances neces- 
 sary to authorize the copy to be used without collateral 
 proof.^ And the person who made or examined the copy is 
 not excluded from the privilege of using it in evidence.'* 
 Statutes enabling a \ydrty to use official copies of writings in 
 evidence, do not impair the efiect of. the originals if they can 
 be produced.* Nor are they exclusive of the common-law 
 rules allowing the execution and contents of deeds to be 
 proved by secondary evidence.^ 
 
 ' Little V. Downing, 37 N. H. 355. * Dobbsi). Justice, &c., 17 Ga. 624; 
 
 ' Farrar v. Fessenden, 39 N. H. Goodwyn v. Gootlwyn, 25 id. 203 ; 
 
 268. Vose i\ Manley, 10 Me. 331 ; Day v. 
 
 ' Warner v. Hardy, 6 Md. 525 ; Mooi-e, 13 (rray (Mass.), 522 ; King 
 
 McCauley v. State, 21 id. 556 ; Bryan v. Kenney, 4 Ohio, 83 ; Sheehan v. 
 
 1). Wear, 4 Mo. 106 ; Snyder t). Bow- Davis, 17 Ohio St. 157; Miller t), 
 
 man, 4 Watts (Pa.), 133. Hale, 26 Penn. St. 432. 
 
 * Lyndet). Judd, 3 Day (Conn.), " Loftin v. Nalty, 24 Tex. 565; 
 
 499 ; Ratcliffe v. Trimble, 12 B. Mon. United States v. Lamb, 12 Pet. (U. 
 
 (Ky.) 32. S.) 1.
 
 SEC. 217.] DOCUMENTARY EVIDENCE. 
 
 697 
 
 Sec. 217. Instances in which Certified Copies, etc., have been Held 
 
 Admissible. 
 
 The certificate of the secretuiy of state of the geuenil 
 government under his seal of office, that a particular^rsou 
 had been recognized by the department of state as a foreign 
 minister, has been received as full evidence of his officFal 
 standing,^ on an indictment for arresting the person so 
 accredited contrary to an act of congress. So on an iu<lict- 
 ment for an assault and l)atteiy upon an attache and secre- 
 tary to the legation of Spain, the certificate of the secretary 
 of state was held the highest and the best evidence of the 
 official character of the complainant.^ In the latter case the 
 certificate was dated after the assault, and stated that Mr. 
 Feronda, charge d'afiaires of Sjjain, had introduced the com- 
 plainant as a gentleman attached to the legation, and per- 
 forming the duties of secretary of legation.^ 
 
 But the certificate of an American consul, residing in a 
 foreign country, attesting the official character of a person 
 there, is not evidence, because it is not within the raiii>e of 
 consular duties.* But under the statute of New York, the 
 acknowledgment of a power of attorney purporting to have 
 been taken before a consul of the United States, resident in 
 a foreign country, certified by him in the proper form and 
 authenticated by his official seal, is sufficient proof of the 
 execution of the power without any evidence aliunde of the 
 genuineness of the signature or seal.^ 
 
 Where the official character of a notary al)road is sought 
 to be proved, a certificate inider the national seal of the for- 
 eign country, attesting that the person certifying the instru- 
 ment is a notary by regular appointment, would be evidence.® 
 The notary's certificate under seal proves itself.''^ 
 
 In New Hampshire, it has been held that the certificate of 
 
 ' United States v. Banner, 1 Bald. Syndics, 4 Mart. (La.) 283 ; Church 
 
 (U. S. C. C.) 234. V. Hubl)art, 2 Cranch (U. S), 23G. 
 
 ' United States v. Liddle, 2 Wash. * St. John v Creel, 5 Hill, .573. 
 
 <U. S. C. C.) 205. ^ Las Caggas v. Larionda's Syn- 
 
 •' United States v. Ortega, 4 Wash, dies, ante. 
 
 (U. S. C. C.) 531. ' Bank v. Gray, 2 Hill (N. Y.), 
 
 * Stein V. Stein's Curator, 9 La. 227. 
 277, 281 ; Las Caggas v. Larionda's
 
 098 KVIDKNCE. [chap. XIX. 
 
 tlie coiuily rk-rk in New York. iiutl.T the >c:il of the county, 
 is C()nii)ctcnt evidence to show lluit :in iiulivi(hi:il, who h:id 
 acted us mugi.stnite in taking a deposition in the hitter State, 
 was, in fact, a justice of the jieace. The (k-cision goes upon 
 the wround that the evidence of the due appointment of jus- 
 tices in New York is found in the clerk's ottice of the respect- 
 ive counties, and that the clerk of the county in which the 
 justice resides is the proper certifying officer to tlie.se facts.^ 
 
 The certiticate of an officer, by way of attesting an inde- 
 pendent fact, and not to authenticate copies, etc., is hardly 
 ever admissible, unless rendered so by positive statutory 
 enactment. Accordingly, the certiticate of the secretary of 
 North Carolina, that a grant had not been recorded in his 
 office, ^vas held in Tennes.sec to l^e no evidence. The busi- 
 ness of a keeper of records, say the court, is not to certify the 
 official order of papers from which official facts are inferred. 
 The general scope and substance of the certificate might 
 more properly furnish matter for a deposition.^ On the 
 .same principle, the certificate of a clerk, containing a histor- 
 i mI account of the proceedings of a court, has been held 
 inatlmissil)le ; he .should certify a copy.^ So too of certifi- 
 cates to prove the loss of papers, which, it is said, must be 
 shown in the ordinary way of proving other facts.'' 
 
 In New York, it is provided by statute that when any 
 officer, to whom the legal custody of any document or paper 
 shall belong, shall certify under his official seal that he has 
 made diligent examination in his office for such paper, and 
 that it cannot be found, such certificate shall ))e ])resumptive 
 evidence of the facts so certified in all ( au.ses, matters and 
 proceedings, in the same manner and with the like effect !is 
 if such officer had personally testified to the same, and copies 
 of all papers filed with the county clerk are by statute ren- 
 dered evidence in all courts, when certified by him, in like 
 
 Dunlap V. Waldo, 6 N. H. 450. " Robinson v. Cliffcnl, 1 Wash. 
 
 » Ayei-s V. Stewart, 1 Overt. (U. S. C. C.) 1 ; Wil«:ox v. Ray, 1 
 
 (Tenn.) 221. Hayw. (N. C.) 410. Thoufrh this is 
 
 ' Barry 15. Rhea, 1 Overt. (Tenn.) otherwise in Pennsylvania. See 
 
 845 ; Wilcox V. Ray, 1 Hayw. (N. Rnggles v. Alexander, 2 Rawle 
 
 C.) 410. ' (Penn.), 232.
 
 SEC. 217.] DOCUMENTARY EVIDENCE. 699 
 
 manner as if the originals were produced ; and under the 
 statute a certified copy of an oath of office so filed is ad- 
 missible in evidence in a suit by the officer for his services.^ 
 In relation to chattel mortgages, the clerk's certificate is 
 rendered evidence of the filing; but the mortgage must be 
 produced and provetl by common-law evidence ; the certifi- 
 cate of the town clerk is not evidence that the paper certified 
 as such is a copy.^ The agent selling under does not require 
 an exact copy.^ The general principle as to certificates of 
 an independent fact seems to have been acted on in Vermont 
 in a case where the defendant, in ejectment, in establishing 
 a vendue title arising out of the collection of special taxes, 
 produced a certificate from the clerk stating at what sum the 
 committee's account of their expenditure of tax, prior to the 
 sale, was allowed ; and it was held not admissible, and that 
 a certified transcript of the record of the account kept by the 
 clerk, and of the allowance upon the same, was the only legi- 
 timate evidence.* So, in North Carolina, where the clerk 
 was authorized by statute to certify the record of certain 
 bonds, and he cei'tified that " the following, and none other, 
 were the Ijonds," etc. ; held, that what the clerk had attested 
 as a record was admissible, but that which ho certified, not 
 as a record, but a fact, viz., that no other bonds were given, 
 was not evidence, because he did not do it officially.^ In 
 Ohio, where, in making title under a judgment and execu- 
 tion, tlie execution, as certified by the clerk, varied from the 
 judgment ; held, that though the fact of such execution hav- 
 ing issued on the judgment produced, might be shown, not- 
 withstanding the variance, yet it could not be established by 
 the clerk's certificate. His certificate is good so far as it 
 relates to matter of record, or copies of papers filed in his 
 
 Devoy v. Mayor, &c., of New ^ Coit v. Wells, 2 Vt. 318. 
 
 York, 35 Barb. (N. Y.) 264. " Governor v. McAffee, 2 Dev. (N. 
 
 " Bissell V. Pearce, 28 N. Y. 252. C.) 15. This doctrine prevails in 
 
 See also Fellows v. Hyring, 23 How. Massachusetts (Oakes v. Hill, 14 
 
 Pr. (N. Y.) 230. Pick. [Mass.] 442); and in New 
 
 ^ Dane v. Mallory, 16 Barb. (N. York ("Wolfe v. Washburn, 6 Cow. 
 
 Y.) 46. [N. Y.] 261, 265.)
 
 700 EVIDHXCE. [chap. MX. 
 
 office. But he cannot tertify independent iticts within his 
 knowledge ; to prove such things ht' should he sworn.' 
 
 In general, where an olliecr is not required hy luw to cer- 
 titV his doings, and he does so, his eertitieate is not evidence.^ 
 Both of the Ciises cited in the last note were instances of certifi- 
 cates upon process by Av ay of return, when no such return was 
 authorized. In those cases where the law makes it the duty 
 of an otHcer to make a return, and holds him responsible for 
 its truth, it is generally evidence. Where an officer is author- 
 ized l)y statute to certify, and his certhicato is rendered evi- 
 dence, the statute is not to l)e so construed as to authorize him 
 to certify to Avhathe nuist necessarily derive from mere hear- 
 sa}', unless the legislature have so expressly enacted.^ Under 
 this rule, in North Carolina, where the certificate of an ad- 
 jutant-general is made evidence by statute of certain delin- 
 quencies in not makini:: returns, it was held that it was not 
 
 . . . . 
 
 evidence of such delinquencies as consisted in neglecting to 
 make returns to other officers, but only of such as related to 
 returns to be made to himself, l)ecause as to the former he 
 could have no official knowledge, and must rely entirely upon 
 hearsay.* Upon the same principle, a law of congress, au- 
 thorizing transcripts of treasury accounts to ])e received as 
 evidence, was held to extend to such accounts only as arose 
 through the direct official dealings of the department, and an 
 account for moneys received l)y a deputy commissary, from 
 a deputy quartermaster, to the use of the United States, is 
 not within the provision. •' An accoimt stated at the treas- 
 ury department," say the court, " which does not arise in 
 the ordinary mode of doing business in that department, can 
 derive no additional validity from being certified under the 
 act of congress. Such a statement can only be regarded as 
 establishing items for moneys disljursed through the ordi- 
 nary channels of the department, where the transactions are 
 shown by the books. In these cases, the officers may well 
 
 ' Bank of the United States v. (U.S.) 406; Stewart v. Allison, 6 
 
 Whit.-. 1 Wright (Ohio), 51, 52. S. & R. (Penn.) 324, 329. 
 
 " Hathaway v. Goodrich, 5 Vt. 65 ; * Governor i\ .Jeffreys, 1 Hawk.s 
 
 Stephen v. Clements, 2 N. H. 390. (N. C), 207. See Govei-nor v. Bell, 
 
 ' See Johnson v. Hooker, 1 Dall. 3 Murph. (N. C.) 331.
 
 SEC. 217.] DOCUMENTARY EVIDENCE. 701 
 
 certify, for they must have officiul knowledge of the facts 
 certified. But where moneys come into the hands of an 
 individual, us is the case under consideration, the books of 
 the treasury do not exhibit the facts, nor can they be offi- 
 cially known to the officers of the department. In this case, 
 therefore, the claim must be established, not by the treasury 
 statement, but l)y the evidence on which that statement was 
 made."^ And wheie an officer's certificate is made evidence, 
 by statute, of certain facts, he cannot extend its effects to 
 others by incorporating them witli those to which he is au- 
 thorized to certify. Accordingly, in Nortli Carolina, under 
 the statute above referred to, in an action brought to recover 
 a penalty imposed upon a militia officer for delinquency in 
 not making a return, it was held that the adjutant-general's 
 certificate could not reach beyond the fact of the delinquenc;;y\ 
 and though he had also certified that the defendant was an 
 officer, yet the court decided that the certificate was no evi- 
 dence of this, but that it must l)e proved independently.^ So, 
 though the certificate of the inspector of ashes, in the city of 
 New York, was made presumptive evidence by statute of 
 the facts contained in it, yet it was held that this must be 
 understood in reference to those facts to which the statute 
 has authorized him to certify, viz., the fact of inspection, 
 the quality, weight, tare, crustings, scrapings, etc. These 
 he may certify, but not as to the title. In respect to the 
 latter, he has no power to certify, and his certificate will not 
 be regarded as evidence on questions relating to it.^ In such 
 cases, the certificate is not to be rejected altogether, but such 
 parts as are pertinent and official may be read. Thus, in an 
 action on a bond, a certificate of an officer was introduced, 
 which, by the local law, was competent evidence of pay- 
 ment, but which also stated that a tender had been made to 
 the plaintift' in the suit in the presence of H. and R., and 
 that he had refused to receive it ; M'Kean, C. J., delivering 
 the opinion, said : " We certainly should not permit Mr. S. 
 
 » United States v. Buford, 3 Pet. ' Williams v. Merle, 11 Wend. (N. 
 (U. S.) 12, 29. Y.) 80, 82. 
 
 =* Governor v. Bell, 3 Murpli. (N. 
 C.) 331.
 
 702 EVIDENCE. [cnAP. XIX. 
 
 (the curtityiiii; officer), it' he were here present, to ."swear that 
 he \va.s told that jjiieh jjersons were present at the tender ; 
 bnt the (jnestion is, whether, having ecrtitied what he onght 
 not to certify, the avIioIc ought to he rejected. We think it 
 ought not. Thi' papers sIjouKI be admitted to i)rovc that 
 payment was made agreeably to the act of assembly, at the 
 time mentioned. All the rest may be struck out ; or indeed, 
 only so much as goes to that point be read and admitted to 
 be proved," He accordingly read to the jury .so much as 
 related to the recei[)t, and suppressed the rest.' Ccrtiticates 
 are to be confined, in their operation and effect, to the special 
 pur[)oses contemplated b}- the law authorizing them. Thus, 
 in New Jer-sey, a certificate of surveyors of highways, and 
 in the New York phrase, "fence viewers," adjudging where 
 the parties therein mentioned should set their partition fence, 
 ■were held not admissible evidence on the question of title. The 
 order of the surveyors is intended by statute for fixing the 
 place of a temporary partition fence until the place shall be 
 legally settled, and to enable the party making the fence to 
 recover from the other his just proportion of the expense.* 
 The certificate must be by the proper officer. The certifi- 
 cate of the register of the treasury department of the general 
 government, under his hand, was offered to show that certain 
 receipts, copies whereof were annexed, were on file in his 
 office. This was accompanied l)y the certificate of the secre- 
 tary of the tretisury, mider the seal of the department, that 
 the person signing the same was register ; yet it Avas held 
 not evidence, for although the register might have the cus- 
 tody of the papers, yet he is not authorized by law to certify 
 thcm.^ The certificate should, in general, be ]>y the officer 
 Avho has at the time the legal custody of the evidence. Thus, 
 to prove certain passengei-s, imported by the defendants into 
 Pennsylvania, to be convicts, and to have undergone punish- 
 ment in' the Spiel-House of Hamburgh, in Germany, a writ- 
 ten report was returned Avith a commission issued in the 
 
 ' Johnson v. Hocker, 1 Dall. ' Corlis v. Little, 12 N. J. Bq. 229. 
 (Penn.) 406. See Wolfe v. Wash- ' Bleecker v. Bond, 3 Wash. (U. 
 burn, 6 Cow. (N. Y.) 265. S. C. C.) 529.
 
 SEC. 217.1 DOCUMENTARY EVIDENCE. 703 
 
 cause, containing a list of the convicts in the Spiel-House, 
 which report appeared to have l)een signed Ijy the late direc- 
 tors of the Spiel-House. The court held the paper as not 
 competent evidence. "It is not," said they, "an official 
 paper certified l)y the proper officers, who at the time had 
 the custody of the Spiel-House or of the books. They style 
 themselves late directors." ^ • 
 
 All certificates, receipts, accounts stated, or other papers 
 framed by private persons, stand upon the footing of mere 
 naked hearsay, and they are never allowed to possess any 
 intrinsic force as evidence against third persons, and cannot 
 be received to aficct the rights of a party.^ So the certificate 
 of an attorney, to prove that a judgment had been obtained 
 on certain notes, is held inadmissible.^ 
 
 Certain receipts of public officers have made an exception. 
 In Louisiana, the receipt of the receiver of pul)lic moneys 
 for o-overnment lands has often been held sufficient to show 
 that the title is out of the government.* Where land has 
 been sold for taxes, a receipt of the treasurer for the surplus 
 bond required of the purchaser by the act of assembly, is 
 evidence, in favor of the purchaser, of the fact that such 
 bond had been executed and delivered.^ Payment for land, 
 made to the officers of the land office, may be proved in that 
 State l:)y the officer's receipt. On the same principle, it has 
 been usual to admit the receipts or certificates of deputy 
 surveyors for their fees and expenses of surve}'. But a cer- 
 tificate of the latter kind, given after the deputy had ceased 
 to hold the office, attesting the fact of his having received 
 the fees, etc., at a previous time, and not at the time the 
 money was paid, is not evidence to aftect third persons.^ 
 
 In respect to foreign certificates, they have occasionally 
 been admitted, as well as rejected, upon grounds from which 
 
 ' Jones V. Ross, 2 Dall. (Penn.) * Newport v. Cooper, 10 La. 
 
 143. 155; Goddard v. Glodinger, 5 
 
 «Paull'«.Mackey,3"Watts(Penn.), Watts (Penn.), 209; Cluggage v. 
 
 110; English v. Hannah, 4 id. 424; Swan, 4 Binn. (Penn.) 150. 
 
 Cutbush V. Gilbert, 4 S. & R. ' Fag-er v. Campbell, 5 Watts 
 
 (Penn.) 551, 555, 556. (Penn.), 287. 
 
 ' Tuthill V. Dav-is, 20 Johns. (N. ^ Clug-g-ag-e v. Swan, 4 Binn. 
 
 Y.) 285. (Penn.) 150.
 
 704 EVIDENCE. [ciIAr. XIX. 
 
 it is difficult to deduce any rules of a very ger.eral iiutuie. 
 Whore it i.s probublc that the officer of another country 
 would not make a deposition, his certificate has been received. 
 Thus, to prove that the governor of the island of St. Thomas 
 refused a captain's petition for leave to take away the cargo 
 of a vessel, the governor's certificate, given at the time of 
 the petition, was otiered ; it was not under seal, but was 
 proved to be in his handwriting, and the court admitted it, 
 saying : " The certificate is of an official act, given at the 
 time, by which it appears the captain petitioned for 
 leave to take away the cargo, which the governor 
 refused. We know no way ])y which that fact could be })e(. 
 ter proved than by this certificate, unless the deposition of 
 the governor had been taken, which it is not to be supi)osed 
 he would have consented to give. This is very different from , 
 evidence of matters not official, in which latter case such 
 certificate could not be admitted." ^ In another case, the 
 certificate of the collector of Havana was offered ; it was 
 under his official seal, and stated the arrival of a certain 
 ship at that place for the purpose of watering ; that, -to 
 effect this oljject, the captain was obliged to present himself 
 to the inteudent-general of the royal armies and treasury, l)y 
 whom the ship's cargo was decreed to be sold, on account of 
 the scarcity, at that place, of the articles of which it con- 
 sisted. It appeared that the collector was authorized to 
 ofrant such a certificate, by a local law of Cuba, and indeed 
 that he alone could do so ; but the court denied that it was 
 evidence. "We admit," say they, "it is an authentic in- 
 strument ; but still it is only an ex parte certificate of a fact, 
 Avhich the officer Avas authorized to certify ; but is not 
 the l)est evidence which the case admits of, because the 
 deposition of the officer might have been taken ; and it was 
 important for the defendant to have had the privilege of 
 cross-examining, particularly for the purpose of eliciting the 
 true cause of the order of sale." ^ AVasiiington, J., added, 
 that although it appeared that the Spanish verb, which in 
 
 ■ UiiitRfl States V. Mitchell, 3 ^ Wood v. Pleasants, 3 Wash. (U. 
 Wash. (U. S. C. C.) 9.5, 96. S. C. C.) 201, 203.
 
 SEC. 217.] DOCUMENTARY EVIDENCE. 705 
 
 this certificate was translated "decreed," means also '-ordered, 
 resolved, determined," and does not necessarily imply that 
 it was in writing ; yet that the decrees of every civilized 
 country, in respect to the sale or disposition of property, 
 ouglit to be presumed written until the contrary appears. 
 If, he said, it had appeared that the decree was not in writ- 
 ing, evidence of its purport, taken in a proper manner, 
 might be received ; or if it had appeared that the officer 
 who gave the certificate would not be permitted, by the 
 government of Havana, to give a deposition, inferior evi- 
 dence, in that case, might be received. 
 
 Where the statute allows certain facts to he proved by 
 the certificate of an officer, the certificate must comply with 
 the requirements of the statute in form and substance.^ When 
 the certificate is made according to law, as required in the 
 organization of banking associations, and acknowledged and 
 recorded, it becomes evidence of the organization.^ So the 
 certificate of the organization of a transportation company 
 is conclusive evidence of the matters therein stated pursuant 
 to the requirements of the statute.^ No greater eliect, how- 
 ever, will be given to the certificate than what the statute 
 evidently contemplated; thus, the inspector's certificate under 
 section 34 of the plank-road act showing the completion of 
 the road, does not estop the State from inquiring into the 
 manner in which the road has been constructed.* Such com- 
 panies were organized by the filing of articles of association 
 and were allowed to erect toll-gates and collect tolls when 
 they had completed a certain number of consecutive miles 
 of the road, as shown by the inspector's certificate duly filed; 
 this certificate properly drawn was made the evidence of the 
 fact certified and conclusive between the road and individu- 
 als.^ So where a village corporation was authorized to issue 
 its bonds and negotiate them for a railroad corporation after 
 a certain amount of its capital stock, $500 000, should be sub- 
 
 ' Rogers v. Jackson, 19 Wend. * People v. Fishkill & B. Plank 
 
 (N. y.) 383. Road Co., 27 Barb. (N. Y.) 445. 
 
 * Burrows v. Smith, ION. Y. 550. * The Hammondsport, &c.. Plank 
 
 ' Western Trans. Co. v. Scheu, 19 Road Co. v. Brundage, 13 How. Pr. 
 
 N. Y. 408. (N. Y.) 448. 
 
 45
 
 706 EVIDENCE. [chap. XIX. 
 
 scribed, such su])scriptioii to be certified by coinnii.>5.sioners 
 and their certificate tiled ; it avus held in favor of a bonajide 
 holder of one of the bonds thus negotiated, that the certifi- 
 cate thus made was conclusive of the fact certified.^ So the 
 appointment of trustees of a concealed, absconding or non- 
 resident de))tor is held conclusive evidence under the statute 
 of tlie regularity of previous proceedings.* 
 
 Where public officers are authorized by law to certify to 
 certain fixcts, their certiticates to those facts are competent 
 evidence thereof.^ Thus, the certificate of a public officer, 
 of acts done in the execution of his duty, is not to be im- 
 peached by the evidence of a single witness ;^ ])ut extra offi- 
 cial certificates, made by an officer, are not admissible in evi- 
 dence.^ But a certificate of a public officer can only authen- 
 ticate copies. It cannot prove a fact as the non-appearance 
 of a certain name on the records.^ An officer of one State 
 has no power to certify to the official character of a person 
 who holds his appointment under another State.'' The certi- 
 ficate of the register of births and deaths for the parish of 
 Orleans is held to be a legal document, creating of itself a 
 ^rima facie presumption of the death of a party.^ Where 
 an act of the legislature directs that the certificate of a pub- 
 lic officer shall be evidence, a paper produced with his name 
 will he prima facie evidence, imless the name is proved not 
 to have been signed by him.^ But an official certificate is 
 evidence only so far as the matter certified comes within the 
 official duty or cognizance of the officer,^" and the mere state- 
 ment of a fact in writing, by a person not acting in any offi- 
 cial capacity, is not a certificate, and the calling it by that 
 name cannot alter its character or clothe it with official so- 
 
 * Bank of Rome v. Village of " Martin v. Anderson, 21 Ga. 301. 
 Rome, 19 N. Y. 20. ' O'Bannon v. Paremour, 24 Ga. 
 
 ■" Wood V. Chapin, 13 N. Y. 509. 489. 
 
 ^ Levy V. Burley, 2 Sumn. (U. S.) " Succession of Jones, 12 La. Ann. 
 
 335 ; Guno v. Jamis, 6 Mo. 330. 397. 
 
 * Brown v. Galloway, Pet. (U. S. * Prather v. Johnson, 3 H. & J. 
 C. C.)291. (Md.)487. 
 
 * "Woods V. Nabors, 1 Stew. (Ala.) '" Newman v. Doe, 5 Miss. 522. 
 172.
 
 SEC. 217.] DOCUMENTARY EVIDENCE. 707 
 
 lemuity.^ The certificate of an officer, when by law evidence 
 for others, is competent evidence for himself, provided he 
 was, at the time of making it, competent to act officially iu 
 the matter to which it relates.^ The certificate of a gov- 
 ernor of a foreign island, registered in the admiralty by 
 Martinique, relative to an order issued by him, is held evi- 
 dence to go to a jury f so the official certificate of the secre- 
 tary of the government of Florida during the dominion of 
 Spain over the territory, after evidence that no originals 
 could be found in the proper office, was held sufficient evi- 
 dence of the copies of the petition and decree of the gov- 
 ernor, no proof having been given to impair or contradict 
 the force of the same.* The certificate of the governor of 
 St. Thomas (the signature being proved), without a seal, 
 given at the time the captain petitioned for leave to depart 
 with his cargo, that such petition was refused, was held to 
 be an official act, by a person who, it is probable, would not 
 give a deposition, and is different from matters not official, 
 and might be read in evidence.^ 
 
 The certificate of the secretary of an incorporated com- 
 pany, bearing its seal, aflbrds jprima facie evidence of the 
 facts therein stated. The court is bound to presume, from 
 such certificate, that legal notice was given to the stockholders 
 of the company of a meeting of which they were entitled to 
 be notified.^ So the certificate of a commissioner for Louis- 
 iana of the official capacity of the clerk of a county court in 
 another State, affords prhna facie presumption of the legal 
 authority of the clerk to do what he is shown to have done, 
 to wit, to receive the acknowledgment of a deed.'^ A secre- 
 tary of a banking corporation is not a certifying officer, and 
 therefore his copies must be sworn to.** So the certificate of 
 the clerk of a religious society that a person had ceased to 
 
 » Runk V. Ten Eyck, 24 N. J. L. * United States v. Mitchell, 3 
 
 756. Wash. (U. S.) 95. 
 
 ' McKnight v. Lewis, 5 Barb. (N. * New Orleans, &c., R. R. Co. v. 
 
 Y.) 681. Lea, 12 La. Ann. 388. 
 
 ' Bingham v. Cabot, 3 Dall. 19. '' Tucker v. Burris, 12 La. Ann. 
 
 * United States v. Acosta, 1 How. 871. 
 
 <U. S.) 24. * Hallowell, &c.. Bank v. Ham- 
 lin, 14 Mass. 178.
 
 708 EVIDENCE. [chap. XIX. 
 
 be a member of such society is not legal evidence ot the fact.^ 
 So in an action to recover tor work done in l)uikling a high- 
 way, in which it is material to prove that the work was done 
 in good faith, a certiticate delivered by the chairman of the 
 county commissioners to the plaintifl", that the highway had 
 been graded and worked to their acceptance, is incompetent.* 
 An imsworn certiticate by an engineer, to a paper purport- 
 ing to l)e a copy of estimates made by his predecessor in 
 otiice, of the nuinl^er of feet in certain railroad bridges, is 
 not admissil)le in an action upon the contract to recover the 
 price for building such bridges.^ In New Hampshire, a sur- 
 veyor's return of his doings, upon a warrant for the collec- 
 tion of highway taxes, is held not to be competent evidence 
 to be ottered to a jury to prove the facts stated in his return, 
 the statute not making his warrant a returnal)l(! process.* 
 But the certiticate of the proper recording officer is compe- 
 tent evidence of the fact that an instrument to which it is 
 attached has been recorded as therein certified.^ A collector 
 of taxes is a public officer to whose official acts credit should 
 be given ; his dui)licate, and an entry made therein by him 
 of the payment of a tax, is good evidence of the fact of pay- 
 ment, independent of the oath of the collector himself.® So 
 a certificate of one who officiated as mid-wife at the birth 
 of one whose minority is in issue, is relevant ; and if the 
 parties agree to waive the oath and cross-examination, it is 
 also competent evidence, when connected with other evi- 
 dence to the same point.' In South Carolina, the sufficiency 
 of the security furnished by a guardian apjjointed out of the 
 State mu->t be proved by the examination of witnesses ; and 
 the certificate of the officer by whom the guardian was ap- 
 pointed is not sufficient.^ In Virginia, an auditor's certifi- 
 cate of forfeiture of land for non-payment of taxes, being a 
 
 ^ Oakest'. Hill, 14 Pick. (Mass.) « Lewisburg- v. Augusta, 2 W. & 
 
 442. S. (Penn.) 65. 
 
 " Reed TJ.Scituate, 7 Allen (Mass.), ' Beates v. Retallick, 23 Penn. 
 
 141. St. 288. 
 
 = Langford v. Sanger, 35 Mo. 133. " Exp. Copeland, Rice Ch. (S. 
 
 * Davis V. Clements, 2 N. H. 390. C.) 69. 
 
 * FergTison v. Clifford. 37 N. H. 
 86.
 
 SEC. 218.] DOCUMENTARY EVIDENCE. 709 
 
 paper which he is authorized hy law to make, and being 
 made in tlie custonuiiy form, proves itseU".^ A genealogical 
 table, certified under the seal of a foreign officer, is not evi- 
 dence.^ A letter from the land commissioner, stating that 
 certain entries are good, and others bad, is not evidence of 
 anything, except the commissioner's private opinion, and is 
 inadmissible.^ So a letter of the State auditor in reference 
 to matters of Ijanking, etc., is not of itself evidence ; that 
 officer is required to keep a seal, and his official writings, 
 etc., can only l)e properly authenticated by the use of it.* 
 In Indiana, imder a statute which provided that the sworn 
 certificate of a corporation clerk to an extract of the records, 
 should be admissible, it was held that the statute referred 
 only to the admissibility of the copy, not to its effect when 
 admitted, and, therefore, if any unsworn certificate be ad- 
 mitted without ol)jection, it is as effective as if sworn to.^ 
 The indorsement and signature of the treasurer being; ex- 
 pressly authorized and required on county warrants, by 
 statute, such writing is competent evidence of the fact stated 
 or certified in such indorsements.^ A certificate of puljlica- 
 tion, signed by the editor only, is not proof of publication.' 
 
 Sec. 218. Certificates by Iixecutive Officers. 
 
 A certificate of the secretary of State, stating the prac- 
 tice in his office with regard to the time of affixino; the seal 
 of the State to warrants, is no evidence to show the time at 
 which such seal was annexed f nor is the certificate of the 
 register of the treasury department, under his hand, that 
 certain receipts, of which copies are annexed, are on file in 
 his office, with a certificate of the secretary of the treasury, 
 under the seal of that department, that he is the register, 
 evidence. It must appear, not only that the officer who 
 
 * Usher v. Pride, 15 Gratt. (Va.) ^ Smith v. Indiana, &c., Railway 
 190. Co., 12 Ind. 61. 
 
 " Banert v. Day, 3 Wash. (U. S.) « Clark v. Polk County, 19 Iowa, 
 
 243. 248. 
 
 * Jeanes v. Lawler, 33 Ala. 340. ' Hay v. M'Kinney, 7 J. J. Mar. 
 
 * Morg-an County Bank ■«. People, (Ky.) 441. 
 
 21 111. 304. ' Brown v. Galloway, Pet. (U. S. 
 
 C. C.) 291.
 
 710 EVIDENCE. [chap. XIX. 
 
 fives the certificate has tlie custody of the papers, but that 
 he is authorized b}' law to certify them, and the register is 
 not so authorized. A sworn copy sliould he produced.^ 
 And although the auditor's report of a balauce due from a 
 person accountable for public money is a guid^ to the comp- 
 troller as to the amount to be sued for, it is not evidence, 
 for the court, of the debt.^ The seal of the treasury- depart- 
 ment of the United States, and the signature of the secretary, 
 are sufficient evidence to anthenticate the official acts of the 
 secretary in a State court.^ The certificate of the secretary of 
 State that a certificate, required by the statute relative to 
 the formation of corporations, has not been filed in his office, 
 is not evidence of that fact ;* but a certificate of incori)oration 
 from the office of the secretary of State is admissible, al- 
 though the original date has been erased by the secretary, 
 and the true date inserted.® In a suit on a promissory note 
 given in consideration of the assignment of a patent right, 
 the defendant ofiered the certificate of the commissioner of 
 patents, under his seal of office, stating that no such patent 
 had been issued, and it was held that such evidence was in- 
 admissible.^ A certificate of a secretary of State, that a cer- 
 tain grant is not recorded in his office, is not admissible 
 evidence in an action of trespass to try title to the land men- 
 tioned in the grant." A letter of the postmaster-general was 
 read without objection to prove defaults in executing a con- 
 tract ; but a certificate of the postmaster-general to rebut 
 this, being objected to, was held not competent.^ Nor is a 
 note of the secretary of State appended to an act of the gen- 
 eral assembly, as published in pamphlet form, stating that 
 the act was published in certain papers at a given date, is 
 not evidence of the fact.^ On a motion by a principal 
 
 ' Bleecker v. Bond, 3 Wash. .529. • Stoner v. Ellis, 6 Ind. 152. 
 
 " United States v. Patterson, Gilp. ' Ayres v. Stewart, 1 Overt. 
 
 44. (Tenn.) 221. 
 
 ' "White V. St. Guirons, Minor " Wilkinson v. Jewett, 7 Leigh 
 
 (Ala.), 331. (Va.), 115. 
 
 * Cross V. Pinckneyville Mill Co., * Allen v. Dunham, 1 Greene 
 
 17 111. .54. (Iowa), 89. 
 
 '' Johnston v. Ewing, &c., Univer- 
 sity, 35 111. 518.
 
 SEC. 219.] DOCUMENTARY EVIDENCE. 711 
 
 sheriff against his deputy, for a failure to account for a part 
 of the revenue, the auditor's certificate of the amount of taxes 
 is admissible evidence.^ So the certificate of the treasurer 
 is admissible evidence to prove the indebtedness of the col- 
 lector of the State tax, although the clerk of the county com- 
 missioners gave testimony that it did not appear from their 
 books that any tax was levied during the years that the col- 
 lector was charged with taxes on the books of the treasury.^ 
 A constable's return of his service of an order of notice issued 
 by a city council, under an ordinance of the city, is compe- 
 tent evidence, supported by his testimony that he has no 
 doubt of its truth, although he has no recollection of the fact 
 of service.^ But the certificate of a sheriff, who has sold 
 land for taxes, of his having posted a certain advertisement 
 at a certain time and place, is inadmissible.* 
 
 Sec. 219. Certificates by Clerks. 
 
 The certificate of a county clerk, showing that a certain 
 person was not a justice of the peace at the date of an ac- 
 knowledgment, purporting to have been taken by him, is 
 competent, but not conclusive evidence of such fact,^ So 
 the certificate of a town clerk that a claim for medical serv- 
 ices rendered to a pauper had been presented to the board 
 of trustees, and was by the board declared to be correct, and 
 recommended to be paid, was held to be admissible evidence, 
 but not decided to be sufficient.® A certificate of the clerk 
 of the court is insufficient to impeach his record entry. ^ So 
 if full proof is demanded to support a claim against an estate, 
 the certificate of the clerk of the county court, stating that a 
 note for the simi claimed, in fiivor of the claimant and against 
 the deceased, was deposited in his office, and the ex parte 
 deposition of his successor, that no such note could be found 
 in the office after diligent search, are not sufficient to estab- 
 
 ' Johnson v. Thompson, 4 Bibb * Wells v. Burbank, 17 N. H. 
 (Ky.), 294. 393. 
 
 " Crane v. State, 1 Md. 27. ' Ross v. Hole, 27 111. 104. 
 
 = Hildredth v. Lowell, 11 Gray ' Fayette County v. Chitwood, 8 
 (Mass.), 345. Ind. 504. 
 
 ' Holmes v. Budd, 11 Iowa, 186.
 
 712 EVIDENCE. [CIIAP. XIX. 
 
 lish it.^ But the certificate of the clerk of the court of errors 
 is evidence of tlie reversal of a judgineut/'' and the certificate 
 of the clerk of the circuit is sufliciciit evidence that a cause 
 was not tried at the circuit.^ A certificate that certain p(!r- 
 sons were appointed inspectors of elections, found in the 
 town clerk's oftice, proved to be in the handwriting of a 
 former town clerk, and signed by the clerk, supervisor, and 
 a justice of the town, and filed by a former town clerk, is 
 admissible evidence.^ But the certificate of a town clerk, 
 that a person has not conveyed land, is not evidence of that 
 fact.^ The certificate of a town clerk, on a deed, of the time 
 when it was received into his office, pursuant to the statute, 
 is only 7;;7>««/«67e evidence of the facts recited in the cer- 
 tificate, and may be contradicted Ijy parol proof.^ 
 
 Sec. 220. Certificates by Judicial OflScers. 
 
 The certificate of a magistrate of the acknowledgment of 
 a deed is suflScient to admit in evidence, though it is not un- 
 der seal ;'^ and the same is true as to a certificate of a magis- 
 trate that an oath required by law was taken, although the 
 oath as certified varies in form from that prescribed by law." 
 The certificate of a judge of probate is not admissible to 
 show who are the heirs of a deceased person.^ The official 
 certificate, or the testimony of the officer who administered 
 the oath required by law to road viewers, is more authentic 
 than the mere statement in the report of such viewers that 
 they had been duly sworn.'" In an action upon a jail bond, 
 the certificate of the justices of the quorum, that the execu- 
 tion creditor was notified according to law, is conclusive evi- 
 dence of that fact.'' The certificate of a judge of })rol)ate, or 
 of the clerk of the county court, is not competent evidence 
 
 » Young V. Mackall, 4 Mrl. 362. ' Fellows v. Pedrick, 4 Wash. (U. 
 
 * Hoy V. Couoh, 6 Miss. 188. S.) 477. 
 
 ^ Wright V. Mungy, 6 Johns. (N * Rose ti. Kennedy, 1 Cranch (U. 
 
 Y.) 286. S. C. C), 29 
 
 * People V. Cook, 14 Barb. (N. » Gi-eenwood v. Spiller, 3 Dl. (2 
 Y.)2.J9. Scam.) .^02. 
 
 ' Hill V. Bellows, 15 Vt. 727. " DollarhideiJ. Muscatine County, 
 
 ' Bartlett v. Boyd, 32 Vt. 256. 1 G7-.>one (Iowa). 158. 
 
 " Black V. Ballard, 13 Me. 230.
 
 SEC. 221.] DOCUMENTARY EVIDENCE. 713 
 
 to show that a person is a public administrator. Those offi- 
 cers can only certify to the correctness of copies of records 
 of their several courts, showing their appointment.^ A cer- 
 tificate by a surrogate, of facts known to him by inspection 
 of his office records, is not evidence. Where the certificate 
 is made as to an official act, it seems that it is admissible, al- 
 though made after the close of tiie officer's term of office.^ 
 Thus in trespass for selling property by virtue of an execu- 
 tion, the certificate of the justice of the peace who rendered 
 the judgment and issued the execution was held evidence, 
 as well for himself as for the plaintift' in the execution, though 
 such certificate was granted after the expiration of the office 
 of the justice.^ 
 
 Sec. 221. Notarial Certificates. 
 
 A notarial copy of a lost note was permitted to go to the 
 jury as a presumption, in connection with the testimony 
 of a witness, that the paper shown to the notary was the 
 same which had been in the witness's possession and acknow- 
 ledged by one of the defendants.* A copy of the manifest 
 of the cargo taken in at Havana, and certified without a 
 seal by a notary, with a certificate, signed by three notaries, 
 that full faith and credit ought to be given to the acts of 
 their associate, was not permitted to be read in evidence, 
 because it did not appear that the notary had charge of these 
 papers, and authority to authenticate them.^ A notarial 
 seal, a]3plied as required by the law of the place where it is 
 affixed, proves itself, and is sufficient evidence of the official 
 character of the notary using it.^ In a chancery attachment 
 against a British bankrupt, a notarial copy of the commis- 
 sioner's proceedings, is evidence.' The characters " N. P." 
 following the name of a person signing the certificate of an 
 
 ' Littleton v. Christy, 11 Mo. 390. ' Talcott v. Delaware Ins. Co., 2 
 
 • " Armstrong v. Boylan, 4 N. J. "Wash. 449. 
 
 L. 76. ' Orr v. Lacy, 4 McLean, 243. 
 
 ' Maynard v. Thompson, 8 Wend. ' Wilson v. Stewart, 1 Cranch (U. 
 
 <N. Y.) 393. S. C. C), 128. 
 
 * Peabody v. Denton, 2 Gall. (U. 
 S.) 351.
 
 714 EVIDENCE. [CIIAP. XlX. 
 
 oath, clearly iiulicate the office of notary pul)li« .' In liitliaiia, 
 the certificate of a notary, authoiized by the laws of his own 
 Stale to administer oaths, is Ijy statute made prcsMni])tive evi- 
 dence.^ In Kentucky, a notarial certificate of a man hcing a 
 citizen of the United States, such as is usually oljtained by per- 
 sons iroing al)road, is not evidence of his having made prepa- 
 rations to leave the country.^ And in an action to recover 
 the consideration paid for a Tnited States treasury note which 
 has l)een refused i)ayment, the notarial protest is not evidence 
 of the reasojis for such refusal by the treasurer ;* and gene- 
 rally, notarial certificates of facts happening in the State, 
 have not been admitted as evidence, unless they relate ta 
 bills of exchange or i)rotests in relation to ships and vessels ; 
 and in the latter case they are never considered as evidence, 
 except in contradiction to evidence given in regidar form by 
 the party making the protest.^ The record of a deceased 
 notary is admissible for the consideration of the jury, in 
 order to prove a notice, although the entry is doubtful as to 
 the meaning. But a clerk of the notary cannot be allowed 
 to explain what the notary meant by the entry. "^ Thus, the 
 notarial eertitieate of a deceased notary, purporting on its 
 face to be made out and signed several months after the pro- 
 test of the note, is admissible in evidence, even though it be 
 proved that such notarial certificate was the only record ever 
 kept by the notary of his acts in the premises.'' Where a 
 notary public protested a note for non-})ayment, having at 
 the time no interest therein, and he afterward became the 
 holder of the note, it Avas held, in an action on the note 
 after his decease, by his executor, against an indorser, that 
 the certificate of the notary Avas competent evidence for the 
 plaintiff." 
 
 ' Rowley v. Berrian, 12 111. 198. ' Wolsh v. Barrett, 15 Ma.«is. .380. 
 
 ' Andrews v. Ohio, &c., R. R. Co., * Duncan v. Watson, 10 Mi.ss. 121. 
 
 14 Ind. 169. ' Booth v. Watson, 13 Miss. 29.'5. 
 
 = Foster v. Davis, 1 Litt. (Ky.) 71. * McKnight v. Le^vis, 5 Barb. (N. 
 
 * Moore v. Worthington, 2 Duv. Y.) 681. 
 (Ky.) 307.
 
 Sec. 222.] DOCUMENTARY EVIDENCE. 715 
 
 Sec. 222. Marine Protests and Surveys, 
 
 The protest of one of the sailors of a captured vessel, 
 made after his return to the United States at the first port, 
 and left with the brokers of the insurers to fix the period 
 from which the loss was to be paid, may be given in evi- 
 dence for that purpose, but it is not evidence of any fact 
 contained in it.^ So the protest of some of the crew, taken 
 abroad, may be read to invalidate their evidence under a 
 commission.^ But the protest of the master of a vessel is a 
 mere narration of the bad weather he has met with, and can- 
 not be received as evidence for himself or his owners,^ But 
 the captain's certificate, that wages were due, though the 
 vessel was in port, not earning freight, is sufficient evidence 
 thereof, though the articles were not produced.* The pro- 
 test of a master of a vessel is not evidence, jjer se ; it can 
 only be used, in a court governed hy the rules of the com- 
 mon law, to impeach the testimony of the master himself, or 
 as incidentally corroborative of the log-book.^ An alleged 
 copy of a survey not made by order of a court of admiralty, 
 there being no evidence that the surveyors acted under the 
 sanction of an oath, is not admissible in evidence, although 
 stamped l^y the American consul of the port of surve}.^ 
 But the certificate of a marine surveyor and inspector, made 
 in the course of his business, is competent evidence of the 
 seaworthiness of a vessel at that time, if supported by his 
 oath that he examined the vessel, and that he has no doubt 
 that the facts stated in it are true, although he has no indepen- 
 dent recollection of those facts.'' A surveyor's report, how- 
 ever, upon a damaged vessel, stating his opinion concerning 
 the repairs necessary to be made, and an estimate of their 
 cost, is not admissible in evidence in an action against the 
 insurers, where the only evidence to corroborate such report 
 
 ' Ruan V. Gardner, 1 Wash. (U. ^ Straffin v. Newell, T. P. 
 
 S.) 145. Charlt. (Ga.) 172 ; Lamalere'W. Caze, 
 
 * Winthrop v. Union Ins. Co., 2 1 Wash. (U. S.) 413; Hempstead v. 
 Wash. 7. Bird, 1 Day (Conn.), 89. 
 
 ^ The May Queen, 1 Newb. Adm. * Stephenson v. Piscataqua Fire, 
 464. &c., Ins. Co., 54 Me. 55. 
 
 * Minors v. The Mary, Bee, 119. '' Perkins v. Augusta, Ins., &c. 
 
 Co., 10 Gray (Mass.), 312.
 
 71»J EVIDENCE. [CIIAI'. XIX. 
 
 is the testimony of the surveyor hiiiisclf tliat the condition 
 of tlie ship appeared fully in the report.' A i)rotest is not 
 evidence to show that u captain is not chargeable with the 
 loss of cargo.^ 
 
 Sec. 223. Con.snlar Certificates. 
 
 The certiticate of the American consul at a foreign port, 
 luider his seal of office, that the .«^hii)'s papers were lodged 
 with him, agreeably to the requisitions of the embargo law, 
 is jjood evidence of that fact, but not of other facts stated in 
 it.^ Indeed, the rule may be said to be invaria))le, that the 
 certiticate of any officer, is only good as evidence, as to such 
 matters and facts as he is by law required to keep a record 
 or give a certiticate of. His certificate is not evidence of acts 
 which are not official nor within his personal knowledge, but 
 such a certificate is competent to remit a penally due the 
 United States.* An American consul at a Ibreign port is 
 without authority to make an authenticated copy of a draft 
 drawn here, by the owner of a ship, upon the consignees of 
 such ship at such foreign port,^ and his certificate of the 
 death of an individual abroad is not sufficient proof of that 
 fact.« 
 
 Sec. 224. Certificates by Appraisers, Inspectors, Etc. 
 
 Where personal property was leased to the defendant, a 
 wu'itten appraisal of the Avhole of it by persons appointed to 
 appraise a portion of it, is not admissible evidence in an 
 action against him, though it was agreed between the par- 
 ties that the whole should be appraised ;' but when such a 
 certificate is admissible as evidence of a fact stated in it, the 
 person making it cannot contradict it. Thus, it has been 
 held not competent for a surveyor of lumljer, whose survey 
 has been returned and recorded as provided in the statute 
 
 ' Howard v. Orient, &c., Ins. Co., " BrowTi v. The Independent 
 
 2 Robt. (N. Y.) .^39. Crabbe (U. S.), 54. 
 
 " Cunning'ham v. Butler, 2 Hayw. * Williams v. Crescent, &c. Ins., 
 
 (N. C.) 392. Co.. 1.5 La. Ann. 651. 
 
 • United States v. Mitchell, 2 ' Morton v. Barrett, 19 Me. 109. 
 
 "Wash. (U. S.) 478. ^ Great Pond Co. v. Buzzell, 39 
 
 Me. 173.
 
 SEC. 225. j DOCUMENTARY EVIDENCE. 717 
 
 regulating the survey of lumber, to show, by his testimony, 
 that the lumber surveyed by him was of a different quality 
 from that stated in his survej^^ 
 
 Inventories of the estates of persons deceased are admissi- 
 ble as ^nima facie evidence, for or against strangers, for 
 many purposes ; being made by persons appomted under 
 authority of law, to investigate a matter of fact of general 
 interest, under oath, and to make a return or report upon 
 the subject, to be preserved of record.^ 
 
 The ofhcial certificate or stamp of a government inspector, 
 is not conclusive evidence that the article stamped is of the 
 quality denoted l:>y the stamp ; it may be shown to be of a 
 different quality.^ But when the statute declares that the 
 certificate of a certain officer shall be evidence of certain 
 facts, parol evidence is inadmissible, both under the statute 
 and on general principles.^ 
 
 When, from the omission of the signature or any other 
 cause, the authenticity of an alleged certificate of a certain 
 officer is not manifest and clear, it becomes a question of 
 fact to be found like any other.^ 
 
 Sec. 225. Certificates by Land Officers. 
 
 A certificate from the laud office of the United States is 
 to be taken as genuine, and Avhat it purports to l)e, until 
 the contrary appears.^ But the certificate of a land officer 
 cannot be evidence of any fact unless expressly made so by 
 statute of the State or of congress.'' The certificate of the 
 register of the United States land office is competent evi- 
 dence to show title in land, and needs no authentication.* 
 And the same is true as to a certificate of the surveyor-gene- 
 ral o-oins to show that a wrong name was inserted in a State 
 grant.^ Indeed the official certificate of the register of a 
 
 » Whitman v. Freese, 23 Me. 212. ' " Brink v. Spaulding-, 41 Vt. 96. 
 
 » Seavey 'o. Seavey, 37 N. H. 125. • Cox v. Jones, 1 Stew. (Ala.) 379. 
 
 ^ Clintsman 'o. Northrop, 8 Cow. ' Mayo v. Johnson, 4 Ark. 613. 
 
 (N. Y.) 45. * Floyd v. Ricks, 14 Ark. 286. 
 
 " Hammondsport & Bath Plank " Brooking v. Deai-mond, 27 Ga. 
 Road Co. V. Brundage, 13 How. 58. 
 Pr. (N. Y.) 448.
 
 718 EMDENCE. [CHAI'. XIX. 
 
 land office to any act on record in his office is competent evi- 
 dence of that iiict.^ And the certificate of a register and 
 receiver of any land office in the United States to any fact 
 or matter of record in liis office, is competent evidence to 
 prove such fact.^ The recorder's certificate is competent 
 evidence to show who entered land in dispute.^ A certifi- 
 cate of a reo-ister of deeds that he had examined the records 
 of his office and found on record a plat of a part of a certain 
 city, and that there was no other plat on file or of record 
 relating to said city that he could find, is inadmissible. In 
 o-eneral, a certificate of mere matter of fact not coupled with 
 any matter of law is not receivable in evidence." If, how- 
 ever, lands are stricken oft" to the conmionwealth for non- 
 payment of taxes, and redeemed by their payment within 
 the time limited by law, the register's receipt is competent 
 to prove the redemption.^ In an action to enforce a judicial 
 mortgage, the certificate of the recorder that the judgment 
 has been recorded in his office, has the same eftect as evidence 
 when drawn up on a duly certified copy of the judgment as 
 it would have on a separate and distinct paper ; but the re- 
 corder's certificate is only prima facie evidence of the facts 
 stated in it, and if untrue may be contradicted by proof.® 
 In an action for damages occasioned by a mill-dam, to land 
 held under the pre-emption law, the certificate of the regis- 
 ter of the land office in which the land lies is admissible to 
 prove the filing of the declaratory statement upon the land 
 in question ; ' Ijut the certificate of the register of the land 
 office that a map is a correct representation of a part of a 
 township, is not sufficient to make it evidence under a stat- 
 ute making copies of records evidence ; it should certify that 
 it is a true copy of the original, and that the original is of 
 record in the office.^ A certificate of the right of pre- 
 emption is prima facie evidence of the title against a New 
 
 * Ross V. Reddick, 2 111. 73. « Taylor v. Pearce, 15 La. Ann. 
 » Delanney v. Burnett, 9 111. 454. 564. 
 
 ' York V. Sheldon, 18 Iowa, 569. '' Dorman v. Ames, 12 Minn. 451. 
 
 * Bemis v. Becker, 1 Kan. 226. * Doe v. King, 4 Miss. (3 How.) 
 » Taylor v. Steele, 1 A. K. Marsh. 125. 
 
 (Ky.) 315.
 
 SEC. 226.] DOCUMENTARY EVIDENCE. 719 
 
 Madrid certificate and survey/ and a certificate of the sec- 
 retary of the land ofiice, autlienticating an entry which he is 
 not authorized by statute to authenticate, is not admissible 
 in evidence.^ So a certificate of the secretary of the land 
 office that he had searched for a certain warrant and could 
 not find it, is admissible in evidence.^ That there has been 
 a conveyance between two parties or that a deed purporting 
 to convey has been filed at his office, cannot be proved by 
 the certificate of the commissioner of the general land office.^ 
 
 Sec. 226. Surveys of Laiid. 
 
 A copy of a warrant of survey, under the surveyor-gen- 
 eral's hand, and containing his directions to the deputy 
 sherifi" to make the survey, is admissible in evidence,^ and the 
 official certificate of survey, returned by a legal sworn sur- 
 veyor, in Virginia, cannot be invalidated by a particular fact, 
 tending to show an impossibility that the survey could have 
 been made in the time intervening between the date of the 
 entry and the date of the certificate of survey.^ But the fact 
 that a copy of a certificate of survey was delivered by the 
 Spanish authorities of New Orleans, in 1803, to a person ap- 
 plying for documentary proofs of title to the land, does not 
 prevent the authenticity of the certificate from being im- 
 peached.'' The certificate of a county surveyor is no evi- 
 dence of possession, except where the route of a watercourse 
 making the boundary of a tract of land is so changed as to 
 leave the tract or part of it on the opposite side from that on 
 which it was at the time of the survey, and the surveyor is 
 called on to make an accurate survey of the part of the tract 
 cut off".^ The certificate of the deputy surveyor of the county 
 where land lies, is prima facie evidence that a survey was 
 made at the time it purports to have been made.^ A sur- 
 
 * Rector v. "Welch, 1 Mo. 334. ^ Pollard v. Dwight, 4 Cranch (U. 
 
 * Garwood v. Dennis, 4 Binn. S.), 421. 
 
 (Penn.) 314. •> United States v. King, 3 How. 
 
 ' Weidman v. Kohr, 4 S. & R. (U. S.) 773. 
 
 (Penn.) 174. « Dillon v. Mattox, 21 Ga. 113. 
 
 * Smith wick v. Andrews, 24 Tex. « Hoy v. M'Murry, 1 Litt. (Ky.) 
 488. 364. 
 
 * Hewes v. M'Dowell, 1 Dall. (U. 
 S.)5.
 
 720 EVIDENCE. [CIIAP. XIX, 
 
 veyor's report is evidence of tiie present existence of objects 
 found upon the land ; but it may be impeached or falsified 
 by other evidence. A coincidence between the objects men- 
 tioned in a grant or deed, and those reported by the sur- 
 veyor, may be satisfactory evidence of the boundary of the 
 land in dispute.^ Where a surveyor's report is to be sub- 
 stantive evidence, in a suit in ejectment, all the defendants 
 who are of full ajfc ought to have notice of the time of mak- 
 ing it ; and a temporary absence of one defendant will not 
 excuse the want of notice.^ A surveyor's certificate, on the 
 recital of its contents in a patent, cannot be contradicted by 
 parol evidence ; evidence, even by the surveyor himself, to 
 show that the survey was never made, or was made at a dif- 
 ferent time, is inadmissible.^ Notes or memoranda of a sur- 
 veyor who is dead, indorsed on his certificate of survey, are, 
 on proof of his handwriting, coni[)ctent evidence to show the 
 original running of the land to which they relate, but not to 
 elongate, or shorten, or in any manner to affect the position 
 of the land as described in the grant.* Where, in a suit for 
 the recovery of lands, a survey of the i)remises was ordered, 
 and the surveyor's certificate was objected to as not identi- 
 fying the lands surveyed with those sued for, it was held 
 that a general description in the certificate of the bounds of 
 the whole, which Avas specific enough to enable witnesses to 
 identify the land, was sufficient to make the certificate ad- 
 missible in evidence.^ A survey in which there is a clerical 
 error is good evidence. So, also, is a deed, signed by a part 
 of the grantors, and not recorded f but a co[)y of a survey, 
 not returned nor verified by the surveyor, cannot be read in 
 evidence ;'' nor is a plat of a survey, found among the 
 papers of an assistant, not signed nor returned by the deputy 
 surveyor.^ A survey is admissible though it does not recite 
 
 ' Heffington v. White, 1 Bibb ' Spears v. Burton, 31 Miss. 547. 
 
 (Ky.), 115. « Brown v. Long, 1 Yeates 
 
 "^ Ewing V. Savary, 3 Bibb (Ky.), (Pcnii.), 162. 
 
 235. ' Davis v. White, 3 Yeates 
 
 * Cain V. Flynn, 4 Dana (Ky.), (Penn.), 587. 
 
 499. 8 M'Kenzie v. Crow, 4 Yeates 
 
 * Suavely o. M'Pherson, 5 H. & J. (Penn.), 428. 
 (Md.) 150.
 
 SEC. 227.] DOCUMENTARY EVIDENCE. 721 
 
 the authority by which it is made ;^ and the field-notes of a 
 deputy surveyor, showing a survey for A. at a particular 
 time ; a warrant in B.'s name calling for A., as adjoining ; 
 and an old draft of a survey, found in the surveyor's office, 
 indorsed in his handwriting, were admitted in evidence to- 
 support a title. ^ A return of survey into the surveyor-gen- 
 eral's office, and a lapse of twenty years afterward without 
 any attempt made during that time to take exception or 
 objection to it, is conclusive evidence that it was regularly 
 made.^ 
 
 Sec. 227. United States Departmental Records. 
 
 The acts of congress, making transcripts from the depart- 
 ments at Washington evidence against public debtors, though 
 in derogation of the common law, are valid, and the tran- 
 scripts j;?/'W/ia /a^e proof ; but the mode prescribed by law 
 for authenticating them must be strictly pursued.* Certified 
 transcripts of the accounts kept at the treasury department, 
 are made evidence of the facts entered and the balance due, 
 in actions between the government and its officers and their 
 sureties.^ The provision of an act of congress, declaring 
 that all copies of bonds, contracts or other papers, relating 
 to or connected with the settlement of any account between 
 the United States and an individual, when certified bj^ the 
 register to be true copies of the originals on file, and authen- 
 ticated under the seal of the treasury department, shall have 
 equal validity and be entitled to equal credit with the origi- 
 nals, is not restricted to cases where suits are commenced 
 under the authority given by section 1 of the act. but 
 applies to all cases where the evidence is required.^ The 
 third auditor is not authorized to authenticate copies of 
 
 ' Sproul V. Plumstead, 4 Binn. ' Walton v. United States, 9 
 
 (Penn.) 189. ' Wheat. (U. S.) 651 ; Bruce v. United 
 
 * Boyle V. Johnston, 6 Binn. States, 17 How. (U. S.) 437 ; United 
 
 (Penn.) 125. States v. Patterson, Gilp. (U. S. C. 
 
 = Nieman v. Ward, 1 Watts & C.) 44 ; Postmaster-Gen. v. Rice, id. 
 
 S. (Penn.) 68. 554. 
 
 ' United States v. Han-ill, 1 Mc- ' United States v. Lent, 1 Paine 
 
 All. (U. S. C. C.) 243 ; Gilman v. (U. S. C. C), 417. 
 Riopelle, 18 Michi 145 ; Crowell v. 
 Hopkinton, 45 N. H. 9. 
 
 46
 
 722 EVIDEXCE. [ciLVr. XIX. 
 
 bonds :uk1 other papers. His power, under the statute, ex- 
 tends only to •' transcripts ironi the books and proceedings of 
 the treasury in regard to the accounts of the war depai-tuient." 
 Copies of bonds must still be certified by the register, and 
 authenticated under the seal of the department.^ 
 
 Sec. 228. Land Office Records and Papers. 
 
 A transcript from tht,- Ijooks or papers ou tile in the 
 o-eneral land oflice, or to the Indian bureau of the depart- 
 ment of the interior, if properly certified, under the seal of 
 the department, I)y the -'acting commissioner," is admissible 
 in evidence.^ So the surveyor-general's certificate that a 
 copy of a decree of confirmation, by the United States 
 board of land conunissioners, is a correct co[)y thereof, " as 
 the same is on file," etc., is sufiicient to admit the copy iu 
 evidence in a suit in ejectment.^ A certified copy of a pat- 
 ent for lands issued by the United States is admissible in 
 evidence on connnon-law ))rinciples. Acts of ])ublic oflicers 
 in the execution of the laws, who are required to make and 
 keep public records of their surveys, sales and conveyances, 
 may be showu by the public records kept and made accord- 
 ino- to law, or by copies thereof, duly certified by the proper 
 ofiicer under the seal of his office* 
 
 So sworn copies of affidavits on file in the office of the 
 reo-ister of a land office, respecting a pre-cxemption right, 
 are admissible as evidence in cases in which the originals, 
 could they be procured, would be evidence.* A letter of 
 the commissioner of the land office, affecting the title to 
 lands, entered from the United States government, may bo 
 proved by an authenticated copy.*' The exemplification of a 
 patent certified by the commissioner of the general land 
 office, is admissible in evidence without proof of the loss of 
 the original.'' 
 
 ' United States v. Griffith. 2 ' Lane v. Bommelmann, 17 111. 95. 
 
 Cranch (U. S. C. C), 366 ; Wickliff ' Smith v. Mosier, 5 Bla(;kf. (Ind.) 
 
 V. Hill. 3 Litt. (Ky.) 380. 51. 
 
 » Stephens v. Westwood, 25 Ala. " Dav-is v. Freeland, 32 Miss. 645. 
 
 71(5 ' Barton v. Murrain, 27 Mo. 235. 
 
 ' Young- 1). Emerson, 18 Cal. 416 ; 
 Clark V. Hammerle, 36 Mo. 620.
 
 SEC. 230.] DOCUMENTARY EVIDENCE. 723 
 
 The report of the surveyor-general to the commissiouer of 
 the general land ofhce, detailing the history of his operations 
 in making a survey, is inadmissible in evidence to prove the 
 location of the land surveyed.^ So an exemplification of any 
 record or paper required l)y law to be filed in the land office, 
 is, as evidence, of equal authority with the original.^ 
 
 Sec. 229. Custom-house Records. 
 
 A copy of a manifest, recorded at a custom-house, and 
 examined, is good evidence.^ So a copy of a clearance at 
 another port in the United States, properly certified by the 
 deputy collector under seal as :. true copy of the original, is 
 competent evidence to establish the date of the clearance, 
 when accompanied by testimony that the person certifying 
 ■was at the time acting deputy collector, that his signature 
 was genuine, that the seal was the custom-house seal, and 
 that the original had been on file in the custom-house of the 
 port for which the vessel cleared, but could not be found 
 after due search.* 
 
 The enrollment of a steamboat is a record, of which the 
 collector of customs is the custodian, under the acts of con- 
 gress, and a copy thereof, duly certified by the collector, is 
 competent evidence ; as is also such a copy of the act of sale 
 recorded under the act of congress of 1850.^ A copy of 
 any enrollment, certified to be such by the collector, is not 
 admissible evidence, he not being authorized to grant copies 
 generally.^ 
 
 Sec. 230. State Land Office Papers. 
 
 A paper, purporting to be "a certified extract from the 
 general draft of certain districts, as framed and approved by 
 the surveyor-general, remaining in his office," under the seal 
 of the office, is not evidence ; it being only an extract, and 
 
 ' Clark V. Hammerle, 36 Mo. 620. ' United States v. Johns, 4 Dall. 
 
 " Lee V. Getty, 26 111. 76 ; Harris (U. S.) 412. 
 
 D. Dove, 4 Blackf. (Ind.)369; Smith * "White v. Kearney, 2 La. Ann. 
 
 V. Hosier, 5 id. 51 ; Stephenson v. 639. 
 
 Doe, 8 id. 508 ; Harden v. Ho-yo- * Sampson v. Noble, 14 La. Ann. 
 
 po-nubby, 27 Miss. 567. 347. 
 
 • Dyer v. Snow, 47 Me. 254.
 
 724 EVIDENCE. [chap. XIX» 
 
 not being a copy of an office paper ;^ nor can an affidavit 
 made in connection with a wari-ant of survey, and certified 
 as an office paper in the land office, be given in evidence ;* 
 nor is the certificate of the register of the huid office, ap- 
 pended to a transcript from tiie books of his office, that the 
 same is a true copy, of itself testimony belbre the jury ; the 
 scope of the certificate being merely to make the copies of 
 the entries evidence.^ But generally, duly authenticated 
 copies from the State land office are admissible.'' A deed of 
 a grantee of the State cannot be considered as belonging to 
 the archives of the State, so as to be proved by a copy made 
 by the land agent.^ A copy of a certificate of entry by a 
 register will not he received in evidence where it appeai-s 
 that the original is on the files in the general land office f 
 and where a certified co[)y of the original certificate and sur- 
 vey from the land office were offered in evidence to give color 
 to title, the copy was rejected l)ccause the certificate was not 
 accompanied by evidence of its having been recommended as 
 genuine.' A Idpotica especial (a security in the nature of a 
 mortgage) and its transfer, arc not papers pertaining to the 
 records of the general land office, nor archives of the office, 
 and therefore copies of them certified hy the commissioner 
 of the land office are inadmissible in evidence.^ 
 
 Sec. 231. state Grants. 
 
 Certified copies of the surveyor-general's grants are inad- 
 missible, unless a sufficient basis be laid for their introduc- 
 tion.^ In Xoilh Carolina, patents or grants from the State, 
 being recorded in the office of the secretary of State, copies 
 
 ' Griffith V. Tunckhouser, Pet. 4 Penn. St. 303 ; Houston v. Pen-y, 
 
 (U. S. C. C.) 418. • 3 Tex. 390; Mason v. McLanglilin, 
 
 ' Lanning v. Dolph, 4 Wash. 624. 16 Tex. 24 ; Dikes v. Miller, 25 Tex. 
 
 ^ .Johnson v. Mays, 8 Ark. 386. Supp. 281 ; Pollard v. Lively, 4 
 
 * Franklin v. Woodland, 14 La. Gratt. (Va.) 73; Ward u Moorey, 1 
 
 Ann. 188 ; Finley v. Woodruff, 8 Wash. T. 122. 
 
 Ark. 328 ; Sessions v. Reynolds, 1.5 ^ Hammatt v. Emerson, 27 Me. 
 
 Miss. 130 ; Wray v. Ho-ya-pa- 308. 
 
 nubby, 18 Miss. 452 ; Hai-per v. * Doe v. M'Caleb, 3 Miss. 756. 
 
 Farmers, &c., Bank, 7 W. & S. ' Ryan v. Jackson, 11 Tex. 391. 
 
 (Penn.) 204 ; Oliphant v. Ferren, 1 ' Mapes v. Leal, 27 Tex. 345. 
 
 Watts (Penn.), 57 ; Grant v. Levan, * Hensley v. Tarpey, 7 Cal. 288.
 
 SEC. 232. J DOCUMENTARY EVIDENCE. 725 
 
 of tliem, obtained from that office, may be given in evidence 
 without accounting for the originals, by all persons except 
 the patentees or grantees themselves, or those claiming under 
 them, who would be entitled to the possession of the orio-- 
 inals.^ A copy of a grant from the register's office, and one 
 from the office of the secretary of State, are both secondary 
 ovidence ; and where secondary evidence is admissible, it is 
 no objection to the copy from the register's office that one 
 from the office of the secretary would be better evidence.^ 
 Generally, it may be said that a copy of a grant is not ad- 
 missible in evidence, without first accounting for the non- 
 jDroduction of the original.^ Office copies of grants, certified 
 by the secretary of State and surveyor-general or other dep- 
 uties, are made admissible in evidence, in South Carolina, by 
 statute.* Where the commissioner of the general land office 
 gave a certified copy of a grant, under which the plaintiff 
 claimed, and annexed to it what purported to be a release bv 
 the original grantee to the government, of the genuineness 
 of which release there was no proof, it was held that the 
 plaintiff was not bound to read such release with the rest of 
 the document.^ 
 
 Sec. 232. State Records. 
 
 A certificate from the executive department is admissible 
 in evidence if it gives substantially the contents, or a part 
 of the contents, of the thing to which it relates. It is not 
 necessary that it should give a copy of the thing to which it 
 relates.^ A transcript from the books of the treasurer of 
 the State is competent evidence to show that a State tax has 
 been paid.' In Ohio, by statute, certified copies of the files 
 of the auditor of State are made evidence, but it is held that 
 
 * Candler v. Lunsford, 4 D. & B. Bay (S. C), 487 ; Gourdine v. Ba- 
 X. (N. C.) 407. rino, Harp. (S. C.) 221 ; S. P. Lin- 
 
 ' Osborne v. Ballew, 7 Ired. L. ning v. Crawford, 2 Bailey (S. C), 
 
 (N C.) 415. 296. 
 
 ^ Malcolmson v. M'Kee, 1 Brev. ' Dikes v. Miller, 11 Tex. 98. 
 
 (S. C.) 168. * Henderson v. Hackney, 16 Ga. 
 
 * Maxwell v. Cai-lile, 1 McCord 521. 
 
 (S. C), 534 ; Rochell v. Holmes, 2 ' Hodg-don v. Wight, 36 Me. 326.
 
 726 EVIDENCE. [chap. XIX, 
 
 this {luthorizcs their admission only when the originals would 
 be evidence.^ 
 
 In an action by a sulj-oontractor against a contractor, to 
 recover for work done on the public works, sworn copies of 
 estimates from the office of the resident engineer arc compe- 
 tent evidence.^ So a certified copy of a contract for con- 
 structing a section of the Pennsylvania canal, from the audi- 
 tor's office, is admissible without the subscribing witnesses.^ 
 A certified copy of the executive minutes, is not evidence of 
 a witness's pardon. The pardon or a certified copy is neces- 
 sary." 
 
 Sec. 233. Verdicts. 
 
 A verdict upon which no judgment has been rendered is 
 not admissil)le in evidence,^ nor is one which has been set 
 aside for any cause.^ Of course verdicts are only binding 
 upon parties and their privies.' but as between them, after 
 judgment thereon, they are conclusive in any suljsequentsuit 
 involving the same subject-matter.^ By special agreement 
 between the parties to several suits involving the same ques- 
 tions, a verdict in one action may conclude all, as when 
 several miderwriters against whom separate actions were 
 brouo-ht for the same loss, agreed to abide by the verdict in 
 one, it was held that the verdict in that action was admissi- 
 ble as evidence in the others.^ 
 
 Sec. 234. Judgments. 
 
 The proceedings of a court of record can only be proved 
 by the record itself, certified by the clerk under the seal of 
 the court.^" But when there is not a plea of nul tiel record, 
 
 ' State V. Wells, 11 Ohio, 261. ' Davis v. Wood, 1 Wheat. (U. S.) 
 
 ' Lyon V. McCadden, 15 Ohio, 551. 6. 
 
 * McCoy V. Lightner, 2 Watts ^ Preston v. Hanney, 2 H. & M. 
 (Penn.), 347. (Va.) 55. 
 
 * Cox V. Cox, 26 Penn. St. 875. ' Patton v. Caldwell, 1 Dall. (U. 
 " Donaldson v. Jude, 2 Bibb. S.) 419. 
 
 (Ky.) 57 ; Hinckle v. Carruth, " Kelly v. Morray, L. R., 1 C. P. 
 Tread. (S. C.) 471 ; United States v. 158 ; Comyns' Dig-., Record (A) (B); 
 Addison, 6 Wall. (U. S.) 291. Kemp v. Neville, 10 C. B., N. S. 523. 
 
 ° Mahoney v. Ashton, 4 H. & M. 
 (Md.) 295.
 
 SEC. 234.] DOCUMENTARY EVIDENCE. 727 
 
 but the record becomes material to prove some allegation in 
 the pleadings, or upon some collateral issue, it may be proved 
 either by the production of the record when complete, Ijy 
 an exemplification or by an examined or other authenticated 
 copy. In England, formerly, records of judgments of the 
 superior courts at Westminster, etc., were not complete 
 until entered on parchment and enroUetl ;^ and a copy of 
 a judgment in paper, signed by the master, was not evidence 
 of the judgment, for it had not yet become permanent;^ 
 though sucjh entry was sufficient to warrant execution. In 
 one case,^ the issue roll, not under the seal of the court, with 
 a nolle jji'os. entered thereon against a co-defendant, was held 
 insufficient proof of the nolle pros. It would seem that a 
 regular entry on record was necessar}' . Bui ivhere the plead- 
 ings did not allege any matter of record, but only averred the 
 pendency of a judicial proceeding before the record is made 
 up — as that a trial was had — the fact might be proved by 
 the production of the nisi prius record, or indictment, which 
 are the official minutes ; and, in some cases, perhaps, by mere 
 oral evidence.* 
 
 It has been held that the minute-book of the clerk of the 
 peace is not enough to prove that an indictment Avas pre- 
 ferred ; nor is the original indictment itself, though indorsed 
 as a true Ijill f yet in both these cases, the allegation of the 
 indictment was only introductory to the gist of the proceed- 
 ing, which was a conspiracy to keep back a witness in one 
 case, and an action on an agreement, after indictment found, 
 in the other. Nor is the minute-book in which the proceed- 
 ings at sessions are entered, and from which the record is 
 made up, evidence of the names of the justices in attendance 
 at the trial of it.^ Where the record alleges an adjournment 
 by A. and others, parol evidence may be given as to the jus- 
 tices actually present. The minutes of proceedings are evi- 
 
 ' B. N. P. 228 ; Glynn v. Thorpe, R. v. Browne, M. & M. 315 ; R. v. 
 
 1 B. & A. 153. Newman, 2 Den. C. C. 390. 
 
 2 -Q N, p_ 228. ' R- V. Smith, 8 B. & C. 341 ; Por- 
 
 ' Fagan v. Dawson, 4 M. & G. ter v. Cooper, 1 C. M. & R. 388. 
 
 711. « R. V. Bellamy, Ry. & M. 171. 
 
 * Pitton V. Walter, 1 Stra. 162;
 
 728 EVIDKNCE. [CIIAI'. XIX. 
 
 deuce of them on a trial V)L'tbre the same court .sitting under 
 the same commission.^ An allegation that an appeal came 
 on to be heard at the sessions must he proved by the pro- 
 duction of the record regularly made up in parchment f but 
 where (as is usually the cnsc) no record l)ut the minute-book 
 is kept by the sessions, such book was admitted in evidence.' 
 In an action upon a judgment, any variance between the 
 judgment described in the declaration from that of the rec- 
 ord will exclude the record from l:»eing received as evi- 
 dence.* In a Missouri case, the declaration alleged that the 
 plaintiff recovered his debt, $1,000, and his damages, 
 $32.19, and his costs, and averred that his costs amounted 
 to $13.90, and concluded with a j;;-o lU 2Kdet recordum. 
 The plea was mil tiel record. A record was offered in evi- 
 dence, showing the amount of the debt and damages, with- 
 out showing the amount of the costs. Below the certificate 
 of the clerk and the seal of the court was a taxation of 
 costs, amounting to the sums averred in the declaration. 
 The record was rejected on the ground of variance. The 
 same record, when offered in evidence for the recovery of 
 the debt and damages, without costs, was also rejected.^ 
 Thus, where the declaration described a judgment recovered 
 
 at , in the county of Kichmond, in the State of New 
 
 York, by and before the supreme court of judicature for 
 said county and State, the exemplification produced was a 
 judgment rendered by the supreme court of judicature of 
 the people of the State of New York, at the city of Albany, 
 it was held that the record offered in evidence was not ad- 
 missible under the plea of nul tiel record. " 
 
 Where the i)lainti(r was enjoined from collecting the 
 amount of a judgment recovered by him, and execution was 
 afterward issued thereon, under which land of the defend- 
 ant was sold in an action by the purchaser to recover posses- 
 sion, the record of the judgment is admissible in evidence 
 
 ' R. V. Tooke, cited 8 B. & C. 343; * Suydam v. Aldrich, 3 McLean 
 
 R. V. Newman, sujtra. (U.S.). 383. 
 
 * R. 7). Ward, 6 C. & P. 366 ; Ac- ' Wash v. Foster, 3 Mo. 205. 
 cord. Giles v. Siney, ivfra. * Pearsall v. Phelps, 3 Ala. 525. 
 
 * R. V. Yeoveley, 8 Ad. & El. 806.
 
 SEC. 234. j DOCUMENTARY EVIDENCE. 729 
 
 without first producing tlie sheriff's deed, the decree dis- 
 solving the injunction and the injunction bond.^ If an 
 entry of record does not show Avhen it was made, a judg- 
 ment nunc jpro tunc, ascertaining the date, cannot be contra- 
 dicted by showing the dates of preceding and succeeding 
 entries.^ Judgments and the proceedings in the causes in 
 whicli they were rendered can only be proved by the pro- 
 duction of the record itself, or hy a certified or examined 
 copy, by the clerk of the court. They arc not sufficiently 
 verified by the oath of a witness that he Avas at one time 
 clerk of the court, and that certain papers exhibited to him 
 as records of the court, were issued and filed by him when 
 he was clerk of the court, and are in his handwritino- and 
 that of his deputies, and he believes they are the records of 
 the court ; and of another witness, that he received the 
 records from the clerk of the court as the records of the 
 suits to which they relate.^ Where the records have been 
 destroyed except the judgment-book, parol evidence of the 
 l^leadings, etc., is not admissible without a certified copy 
 of the judgment.^ When all the necessary papers to consti- 
 tute the judgment-roll in a foreclosure action existed, but 
 were never attached together in the form of a roll, it was 
 held that they were admissible in evidence in support of a 
 title to propei'ty acquired under a sale thereof as directed 
 by the judgment therein.^ Evidence is admissible to show 
 the particular day on which a judgment was rendered, when 
 the record is of a term generally, and the particular day 
 becomes material to the rights of parties.^ A transcript of 
 the record of a replevin suit without the date of the writ, 
 is conclusive evidence of the right of property of the plain- 
 tiff, at the date of judgment onl}-.^ 
 
 The plaintiff, in an action on a judgment, offered in evi- 
 dence a writ and declaration returnable to a justice of the 
 peace, with regular service indorsed thereon, and the follow- 
 ing minutes in the handwriting of the justice, viz. : " Court 
 
 * Bumpass v. Webb, 3 Ala. 109. ' Sharp v. Lumley, 34 Cal. 611. 
 
 ^ Eslava v. Elliott, 5 Ala. 264. * Young- iJ. Renyon, 2 Day (Conn.), 
 
 * Lyon V. Boiling, 14 Ala. 753. 252. 
 
 '' Nims V. Johnson, 7 Cal. 110. ' Sexton v. Brock, 15 Ark. 345.
 
 730 EVIDENCE. [ciIAr. XIX. 
 
 Ibes paid. Plea, general issue, non assumj^sit, and issue. 
 Continued 26th September, 1836. Damages, .$.5.75. Court 
 50 cts. Attendance, $1" (and other items of a bill of costs, 
 amounting to $4.23) ; and also an execution counting on a 
 judgment between the parties to the writ, recovered bef(fre 
 the same justice, for the same sums of del)t and costs, and 
 sio-ned by the justice, with a return of non est inventus 
 thereon. It appeared that the justice died in Jul}^ 1837. 
 It was held that these writings did hot constitute or show a 
 record of a judgment rendered ; and that, there being no 
 proof of a record once existing and lost, they were not ad- 
 missible as a legal substitute for such proof.^ In Maine, in 
 a suit upon a judgment recovered before a justice of the 
 peace, the plaintilf is bound to establish the existence of the 
 record ; and for that purpose it is not sufficient to introduce 
 a book alleged to contain the record, without some proof of 
 its authenticity.^ In Indiana, a judgment of a justice of the 
 peace should be signed, in order to be admissible in evi- 
 dence.^ In Missouri, it may be proved by parol that the 
 transcript of a judgment, obtained before a justice of the 
 peace, was filed in the county court, and that the county 
 court allowed the amount of the judgment so filed. The 
 records of the county court reciting the transcri[)t may he 
 read without producing the transcript.^ A record imports 
 absolute verity, and must be tried by itself. It must be com- 
 plete and perfect in itself without reference to extraneous 
 circumstances. If deficient or imperfect, it cannot be assisted 
 or aided l)y evidence deJiors the same. So, where a record 
 of a judgment against lands for taxes unpaid, does not state 
 in what year or in what term it was rendered, the sheriff's 
 deed must fall for want of a foundation to rest upon.** But 
 in all cases the question as to the jurisdiction of the court 
 
 ' Davidson v. Murphy, 13 Conn. Douglass v. McKenire, 19 Conn. 
 
 213. 489 ; Galloway v. McKeiten, 5 Ired. 
 
 " Wenthworth v. Keizer, 33 Me. L. (N. C.) 12; Farley v. Budd, 14 
 
 367. Iowa, 289; Daws d. McMichael, 6 
 
 = Ringle v. Weston, 23 Ind. 588. Paige Ch. (N. Y.), 139; Willard v. 
 
 ♦ Huston V. Becknell, 4 Mo. 39. Whitney, 49 Me. 235. 
 
 ' Young V. Thompson, 14 111. 380 ;
 
 SEC. 235.] DOCUMENTARY EVIDENCE. 731 
 
 rendering it, may be inquired into, and if it has no jurisdic- 
 tion, the judgment is a nullity, and therefore of no value as 
 evidence.^ A copy of the case, made by the presiding jus- 
 tice of the court of common pleas, and transferred to the su- 
 perior court, being the case upon which the judgment in the 
 last named court was rendered, and the foundation of the 
 final judgment, is proper evidence to show what matters were 
 litigated and decided in the suit.^ Where a record of a prior 
 judgment is competent evidence in a cause, irregularity or 
 error in that judgment cannot be objected to or inquired into 
 on the trial. ^ A record of conviction is not invalid because 
 the judge who signed it received his appointment after the 
 conviction took place.* The judgment-roll in a partition suit 
 is admissible in evidence, in an action in ejectment, to show 
 title in the plaintiff, although it was not signed and docketed 
 until after the connnencement of the action.^ Where the 
 date of a judgment is prior to those of the trial and verdict, 
 it will be considered a mere clerical error, and be no objec- 
 tion to the admission of the judgment in evidence, in an ac- 
 tion ao;ainst the sheriff for takinoj insufficient sureties on the 
 writ of replevin. A record of a judgment recited that the 
 court entered judgment for, etc. It was held that this was 
 as good as if it recited that it was adjudged by the court, 
 etc., as it prima facie showed a judgment, which was enough, 
 until the record was impeached.' 
 
 Sec. 235. Proof of Foreign Judgments, Etc. 
 
 A judgment duly verified by a seal proved to be that of a 
 foreign court will be presumed to be regular and agreeable 
 to the laws of the State or country where it was rendered, 
 until the contrary is shown. The proper method of proving 
 it is by an exemplified copy, although it may be proved by 
 
 * Custis 1). Georgetown, &c., T. ^ Stevens -?). People, 1 Hill (N. Y.), 
 
 Co., 2 Cranch (U. S. C. C), 81 ; Lin- 261. 
 
 coin V. Lamer, 2 McLean (U. S. C. * Lynch v. Rome Gas Light Co., 
 
 C), 473 ; Wistervelt v. Lewis, 2 id. 42 Barb. (N. Y.) .591. 
 473. « Myers v. Clark, 3 W. & S. 
 
 ' Brackett v. Hoitt, 20 N. H. 257. (Penn.) 535. 
 
 ' Stothoff V. Dunham, 19 N. J. L. ' Vilas v. Reynolds, 6 Wis. 214. 
 181.
 
 732 EVIDENCE. [chap. XIX. 
 
 uii examined copy, or by a certified copy, although in the 
 hitter case the certificate must be authenticated,' either by 
 the certificate of the judge of the court, or l)y a witness who 
 saw the clerk affix the seal of the court thereto, and attest 
 the copy with his own name.^ If the court has no seal, the 
 fact may be sliown.^ If the copy is authenticated l)y the 
 judge of the court, his handwriting must be proved,^ which 
 it has been held may be done by the certificate of a notary 
 public.^ The seal of the court, if it has one, 7nusl he affixed 
 to the record itself, and it is not sufficient that it is annexed 
 to the certificate of the judge of the court authenticating 
 the attestation of the clerk w^ho certifies the record.^ When 
 the record is under seal, it is evidence that the court render- 
 ing the judgment is a court of record.' If the final record 
 in a cause has been made up, the original papers are not 
 admissil)le as evidence.^ But until the record has l)een made 
 up, the writ, and all original papers on file in the clerk's 
 office, are admissible in the same court.^ The records of the 
 same court prove themselves.^*' But upon a plea of nul tiel 
 record there must be an inspection of the record, and a copy 
 will not be allowed." In Maine, it is held that either the 
 records of inferior courts of that State, or duly authenti- 
 cated copies thereof, or the original pa[)ers, are admissible 
 as evidence. ^^ The whole record should be produced, although 
 only a part of it need be used.^^ The records of one county 
 court brought into another court by the county clerk of that 
 county, are admissible without further proof of their genuine- 
 ness, but not if they find their Avay into another county and 
 
 » Church V. Hubbart, 2 Cianch ' Peck v. Sand, 2 Ga. 1. 
 
 (U. S.), 238. " Prescott v. Fishei-, 22 111. 390 ; 
 
 " Buttrick v. Allen, 8 Mass. 273. Harrison v. Kramer, 3 Iowa, 343 ; 
 
 ^ Packard V. Hill, 7 Cow. (N. Y.) Kendall v. Talbot, 1 A. K. Mar. 
 
 434. (Ky.) 24; Wallace v. Beauchamp, 
 
 * Henry v. Adley, 1 Camp. 63. 1.5 Tex. 303. 
 
 ' Yeaton v. Fry, 5 Cranch (U. S.), " Burke v. Trig-g, 2 Wash. (U. S.) 
 
 335. 215. 
 
 * Turner v. Waddington, 3 Wash. '^ State v. Bartlett, 47 Me. 396. 
 (U. S.) 126. » Carrick v. Armstrong, 2 Cold. 
 
 ' Smith V. Redden, 5 Harr. (Del.) (Tenn.) 265 ; Walker v. Doane, 108 
 321. 111. 286; Thomas v. Stewart, 92 
 
 * Brown v. Isbell, 11 Ala. 1009. Ind. 246.
 
 SEC. 236.] DOCUMENTARY EVIDENCE. 73S 
 
 are brought into court by some other person. Judicial 
 proceedings before a justice of the peace, in North Carohna, 
 are held not to prove themselves, like records, Ijut parol 
 evidence may be introduced to show that they are void.^ 
 Summary and early records of the court are admissible in 
 evidence.'^ And generally, the pendency of a suit in a court 
 of record can only be proved by record evidence.^ The cir- 
 cuit coui't of the United States is not a foreign tribunal, so 
 as to require its judgments to be proven as facts, but its 
 judgments under its seal are admissible in evidence, the seal 
 proving itself like the seal of a State court.* 
 
 Sec. 236. Between what Parties Admissible. 
 
 A judgment is only conclusive upon the parties thereto, 
 and their privies ; that is, between the parties and those 
 united with them in interest. By privily is meant mutual 
 or successive relationship to the same rights of property, 
 whether it grows out of a contract, the operation of law, or 
 kinship. 
 
 There are five kinds of privies ; privies of blood, such as 
 the heir to the ancestor ; privies in representation, as execu- 
 tors or administrators to the deceased ; privies in estate 
 between donor and donee, lessor and lessee ; privies in 
 respect of contract ; and privies on account of estate and 
 contract together. Thus a receiver may be called the privy 
 of the plaintiff by representation.^ The representatives of 
 parties to a suit are bound by the judgment f so are the 
 heirs of such parties ;'' but not where the heirs inherited 
 after suit brought and before decree.^ The proceedings sub- 
 sequent to the death of the party are void unless his heirs 
 are brought in.^ 
 
 * Can-oil V. M'Gee, 3 Ired. L. « Biii-hans v. Van Zandt, 13 N. Y. 
 (N. C.) 13. 523. 
 
 " Boal V. King, Wright (Ohio), '' Wood v. Byington, 2 Barb. Ch. 
 
 223. (N. Y.) 387. 
 
 ' Smiley v. Dewey, 17 Ohio, 156. « Requa v. Holmes, 16 N. Y. 193. 
 
 * Williams v. Wilkes, 14 Penn. " Washington Ins. Co. v. Slee, 2 
 St. 228. Paige Ch. (N. Y.) 365; Kelly v. 
 
 ^ Tinkham v. Borst, 24 How. Pr. Hooper, 3 Yerg. (Tenn.) 395; 9- 
 (N. Y.) 246 ; see also Goddard v. Wend. (N. Y.) 649. 
 Benson, 15 Abb. Pr. (N. Y.) 191.
 
 734 EVIDENCE. [chap. XIX. 
 
 There is at common law no privity ])et\veen an executor 
 and the administrator de bonis non cam testamenlo annexo, 
 and a judgment recovered hy the former will not bar a suit 
 1)rought by the latter ;" and where the administrator recov- 
 ers a judgment and dies, the succeeding administrator may 
 bring a new action.* Nor is there any privity between an 
 executor or administrator and the heir or devisee of the land, 
 and a judgment against the former is not evidence against 
 the latter to charge the real estate.^ 
 
 A decree for the specific execution of a covenant real in 
 a suit commenced by the covenantee, and afterward revived 
 in favor of his heirs, is no bar to a suit Ijrought by the 
 administrator of the covenantee to recover damages for the 
 ]>reach of such covenant, if he was not naade a party to the 
 suit. The covenantor has no means of relieving himself 
 from the double burden of executinoj the ao:reemeut and 
 paying damages for the breach, in such case, save by resort- 
 ing to a court of equity.* 
 
 It follows, as a necessary and invariable rule, that a judg- 
 ment is not admissible to establish or defeat the essential 
 rights of others than the parties indicated.^ Either party to 
 the record, however, may use it to establish a material fact 
 in another suit between them f but, unless the judgment is 
 directly between the same parties, or constitutes a part of the 
 res gestm out of which the action in which it is sought to use 
 it grew,'' it is not admissible. Thus, in an action of slander 
 against a husband, a judgment in a former suit between the 
 
 ' Grout V. Chamberlin, 4 Mass. Mason v. Peter, supra, and see a 
 
 611. note to that case by the reporter. 
 
 ' Pastal V. Wards, Latch, 140 ; See Goddard v. Benson, 15 Abb. 
 
 Barnhurst v. Yelverton, Yelv. 83; Pr. (N. Y.) 191. 
 
 Gates V. Gough, id. 33 ; Allen v. * Combs v. Tarlton, 2 Dana (N. 
 
 Irwin, 1 S. & R. (Penn.) 549. Y.), 474. 
 
 ' Mason v. Peters, 1 Munf. (Va.) * Jackson v. Vedder, 3 Johns. (N. 
 
 437; Deneale v. Archer, 8 Pet. Y.) 8; Simson v. Kennedy, Harj). 
 
 (U.S.) 528; Osgood v. Manhattan (S. C.) 370; Fowler v. Collins, 2 
 
 Co., 3 Cow. (N. Y.) 612 ; Neal Root (Conn.), 231 ; Banks v. Sharp, 
 
 V. M'Combs, 2 Yerg. (Tenn.) 10. 6 J. J. Mar. (Ky.) 180. 
 
 "Whether there is any privity be- ° James v. Buzzard, 1 Hempst. 
 
 tween an executor or administrator (Tenn.) 240. 
 
 and a legatee of personals— quere. ' Wells v. Shipp, 1 Miss. 353.
 
 SEC. 236.] DOCUMENTARY EVIDENCE 735 
 
 plaintiff and the husband and his wife for the same slander, 
 it was held not to be admissible ;^ and the reason is, because 
 neither the parties to, nor the ground of, the action are the 
 same.^ Tlie rule is that a record of one suit cannot be read 
 in another as evidence, unless both parties, or those under 
 whom they claim, were parties to both suits, upon the 
 ground that a document cannot be used against a party who 
 could not have availed himself of it, had it been made in his 
 fiivor.^ Thus a suit by A. against B., on the death of A,, 
 was revived by C. and D., his brothers and heirs ; and it was 
 held that the record of a former suit by C. against B., in 
 which the same identical point was in controversy, was not 
 admissible in evidence, A. not claiming title under C* A 
 judgment against the principal is not conclusive upon a 
 surety who was not made a party to the suit.^ Where, for 
 the reasons stated, a judgment cannot be used against a party, 
 it cannot be used in his favor.^ The fact that an appeal is 
 pending from a judgment, or a motion for a new trial, does 
 not defeat its force or admissibility as evidence ; iintil act- 
 ually reversed, it is conclusive against the parties? There are 
 instances in which a record is admissible against a party to 
 it, in favor of one who is not, to show his acts ; as, that his 
 possession of a tract of land extended to a particular bound- 
 ary.^ So records may be admitted in suits not between the 
 same parties or privies, where, upon the facts of the trial 
 and the recoveries in such records, the interests of others hang 
 as incidents or consequences. In such instances the produc- 
 , tion of such a record is proof that the suit was brought and 
 
 * Magauran v. Patterson, 6 S. & ^ Paynes -w. Coles, 1 Munf. (Va.) 
 
 R. (Penn.) 278. That the parties 373. 
 
 must be the same, see Strutt v. Bov- * Chapman v. Chapman, 1 Munf. 
 
 ington, 5 Esp. 56 ; Morse v. Wil- (Va.) 398. 
 
 liams, C. & M. 615 ; Blakemore v. ^ Clark v. Montgomery, 23 Barb. 
 
 Glanmorgan Canal Co., 2 C. M. & (N. Y.)464 ; Thomas v. Hubbell, 15 
 
 R. 133 ; Smith v. Webber, 1 Ad. & N. Y. 405. 
 
 El. 118. ^ Chites v. Conley, 2 Dana (Ky.), 
 
 " Killingsworth v. Bradford, 2 21. 
 
 Overt. (Tenn.) 204 ; Paynes V. Coles, ^ Chase v. Jefferson, 1 Houst. 
 
 1 Munf. (Va.) 373 ; Chapman v. (Del.) 257. 
 
 Chapman, 1 Munf. (Va.) 398. * Smith v. Shackleford, 9 Dana 
 
 (Ky.), 452.
 
 736 EVIDENCE. [chap. XIX. 
 
 the recovery had as therein set forth, but the consequences 
 to others rcsulthig from those facts apparent from the face 
 of the record, are to l)e established by appropriate evidence 
 of such other facts as may be necessary to sustain the action 
 or defense.' 
 Sec. 237. Judgment Conclusive of Fact Recorded 
 
 Judgments and verdicts in the superior courts are always 
 of record. Tliey have, therefore, the character which be- 
 longs to all records, that they are not to ])e contradicted by 
 evidence. If a verdict finding several issues is produced iii 
 evidence the opposite party will not be allowed to show that 
 no evidence was offered on one of the issues, and that the 
 verdict as to that issue was indorsed on the postea by a mis- 
 take.^ On an indictment for assisting the escape of a convict 
 out of prison, if the record of the conviction is produced 
 by the proper officer, evidence is not admissible to dispute 
 the statement in the record, or to show that it never was 
 filed among the other records of the county; even though 
 the indictment refers to it with a prout patet, as remaining 
 among those records.^ 
 
 Sec. 238. Not Conclusive on Immaterial Averments. 
 
 A record will not be conclusive as to the truth of allega- 
 tions which were not material nor traversable.* Thus a party 
 will not be estopped from averring, in an action of debt on a 
 bond, that the bond was made at A., though in a former ac- 
 tion on the same bond he averred it to have been made at 
 B. ;^ nor in the case of a conviction for a felony, where the 
 jury has given a general verdict, the record will not be con- 
 clusive that the offense was committed on the day mentioned 
 in the indictment, /br the time is not of the substance of the 
 charge ; and therefore a party interested to dispute a forfeit- 
 ure (which in the case of real property relates to the time of 
 the offense) may show that the offense was committed on a 
 different day from that alleged in the record.^ 
 
 ' Key V. Dent, 14 Md. 86. " Com. Dig., tit. Estoppel, E., 6. 
 
 » Reed v. Jackson, 1 East, 35.'). " Ive's Case, 3 Inst. 230 ; Gilb. 
 
 =■ R. V. Shaw, R. & R. Cr. C. 526. Ev. 230. See Co. Lit. 352 b.; and 
 
 * Co. Lit. 352 b., or on a fact not Att. Gen. v. King, 5 Pri. 195. 
 in issue.
 
 SEC. 239.] DOCUMENTARY EVIDENCE. 737 
 
 The record of a judgment or verdict not being liable to 
 contradiction as to the truth of its contents, the question as 
 to its admissibility 6v effect in evidence must depend on the 
 inferences attempted to be drawn from it. These inferences 
 are sometimes necessary and conclusive, and sometimes op- 
 tional with juries. Where a judgment is produced merely 
 for the purpose of showing that such a proceeding actually 
 took place (as, upon an indictment for perjury at a trial, with 
 a view of showing that the trial actually took place), ^ the 
 record is conclusive of the fact that the proceeding did take 
 place. 
 
 Sec. 239. Effect of Judgment. 
 
 The legal consequences arising from the simple fact of a 
 judgment having been pronounced by a court of competent 
 jurisdiction are very numerous. In some cases, a judgment 
 constitutes part of a title ; in others, it is used merely to 
 show a suit determined, or to let in evidence of what was 
 sworn upon a trial, or to justify proceedings in execution 
 of the judgment, or to entitle a partner to contribution, 
 or for some other purpose to which it is properly appli- 
 cable as a judgment. So a judgment may be used to prove 
 the fact that a party had by process of law been compelled 
 to pay damages to a certain amount f but not to prove the 
 circumstances under which they were paid.^ The celebrated 
 judgment of De Grey, C. J., expressing the unanimous 
 opinion of all the judges, in The Dutchess of Kingston Case,* 
 gives such a clear and comprehensive view of the general 
 principles applicable to the subject in hand that it will be 
 desirable to give a portion of it here. He said : " What has 
 been said at the bar is certainly true, as a general principle, 
 that a transaction between two parties, in judicial proceed- 
 ings, ought not to be binding upon a third ; for it would be 
 unjust to bind any person who could not be admitted to 
 make a defense, or to examine witnesses, or to appeal from a 
 
 ' See R. V. lies, Ca. temp. Hardw. ^ Green v. New River Company, 
 
 118 ; R. V. Page, 2 Esp. 649 n. See 4 T. R. 590. 
 
 also B. N. P. 243 ; R. v. Gordon, « See by Cresswell, J., 6 M. & G. 
 
 Car. & M. 410. 165. 
 
 * 20 How. St. Tr. 578. 
 
 47
 
 738 EVIDENCE. [chap. XIX. 
 
 a jiKlgiiient he might tliink erroneous ; and therefore the de- 
 positions of witnesses in another cause in })roof of a fact, the 
 verdict of a jury tinding the fact, and the judgnieut of the 
 court ui)on I'ucts found, although evidence against the parties 
 and all claiming under them, arc not, in general, to be used 
 to the prejudice of ^trangers.^ There are some exce[)tions to 
 to this general rule, founded upon particular reasons, hut not 
 being applicable to the present subject it is unnecessary to 
 .state them. From the variety of cases relative to judgments 
 being given in evidence in civil suits, it may be stated : First, 
 that a judgment of a court of concurrent jurisdiction, directly 
 upon the point, is, as a plea, a l)ar, or, Jis evidence, conclu- 
 sive, between the sa7ne parties, upon the same matter directly 
 in question in another court. Secondly, that the judgment 
 of a court of exclusive jurisdiction, directly upon the point, 
 is conclusive upon the same matter, between the same parties, 
 coming incidenlallij in question in another court for a different 
 purpose. But neither the judgment of a concurrent or ex- 
 clusive jurisdiction is evidence of any matter which came 
 collaterally in question, though within their jurisdiction, nor 
 of any matter incidentally cognizable, nor of any matter to 
 be inferred by argument from the judgment." 
 
 * This principle is universally ac- Rand. (Va.) 86 ; Neal v. McComb, 
 
 knowledged. See Burrill v. West, 2 Yerg. (Tenn.) 10, 12; Blount v. 
 
 2 N. H. 190 ; "Wood v. Davis, 7 Darrach, 14 S. & R. (Penn.) 184, 186, 
 
 Cranch (U. S.), 271 ; Davis v. Wood, note ; Este v. Strong, 2 Hamm. 
 
 1 Wheat. (U. S.) 6 ; Paynes v. (Ohio) 401 ; Fisk ?>. Weston, 5 Me. 
 Coales, 1 Munf. (Va.) 373 ; Turpin 410 ; Cowles v. Harts, 3 Conn. 516 ; 
 V. Thomas, 3 H. & M. (Va.) 139 ; James v. Stookey, 1 Wash. (U. S. C. 
 Jackson v. Vedder, 3 Johns. (N. Y. C.) 530 ; Chapman v. Chapman, 1 
 8 ; Case v. Reeves, 14 id. 79 ; Ryer Munf. (Va.) 398 ; Fraziei- v. Frazier, 
 V. Atwater, 4 Day (Conn.), 431; 2 Leigh (Va.), 642, 6.^0 ; Munford 
 Killinsworth v. Bradford, 2 Overt, v Overseers, 2 Rand. (Va.) 313. 318 ; 
 (Tenn.) 204; Wood i;. Stephen, 1 S. Floyd v. Mintsey, 5 Rich. (S. C.) 
 & R. (Penn.) 175 ; Estep v. Hutch- 361 ; Riggins v. Brown, 12 Geo. 271 ; 
 man, 14 id. 435 ; Tabor v. Perrott, Pei-sons v. Jones, id. 371 ; Michan 
 
 2 Gall. (U. S.) 565; Twambly v. v. Wyatt, 21 Ala. 813; Fallon v. 
 Henley, 4 Mass. 441 ; Respublica v. Murray, 16 Miss. 168 ; Duncan v. 
 Davis, 3 Yeates (Penn.), 128 ; John- Helms, 8 Gratt. (Va.) 68. See also 
 son V. Bourn, 1 Wa.sh. (U. S.) 187 ; Rapelye v. Prince, 4 Hill (N. Y.), 
 Stevelie v. Read. 3 Wash. (U. S. C. 119 ; Alexander v. Taylor, 4 Denio 
 C.) 247; Cleaton v. ChambUsa, 6 (N. Y.), 302.
 
 SEC. 241.] DOCUMENTARY EVIDENCE. 739 
 
 Sec. 240. Distinction Between Judgments of Courts of Exclusive and 
 Concurrent Jurisdiction. 
 
 A much more couclusive effect is attributed to the judg- 
 ments of courts of exclusive jurisdiction than to the judg- 
 ments of courts wliich have only concurrent jurisdiction. 
 With regard to iJie jMrties between whom tliey are to be 
 used, and tlie matter to which tliey relate, these two classes 
 of judgments are put upon the same footing, and subject to 
 the same limitation and restriction ; the matter must be the 
 same, \\\e, jpaHies also the same. But in one important par- 
 ticular they differ, that is, with reference to the occasion and 
 the manner in which it is proposed to use them. It is only 
 upon a matter directly in question that the judgment of a 
 court of concurrent jurisdiction is conclusive — while the 
 judgment of a court of exclusive jurisdiction is conclusive, 
 not only when the matter comes in question directl}^ but also 
 when it comes incidentally in question. This difference in 
 the effect of the judgments arises from the difference in the 
 constitution of the courts which pronounce them. When a 
 matter, over which some other court is allowed to have ex- 
 clusive jurisdiction, comes in question — whether directly or 
 incidentally — and the judgment of such a court is offered in 
 evidence as proof of the matter, it must necessarily be con- 
 clusive ; implicit credit must be given to a court so consti- 
 tuted, while its judgment is unreversed and in full force ; for 
 the court in which the particular matter is to be proved has 
 no authority to examine into the merits of the judgment, and 
 must take the matter as judicially and conclusively decided. 
 
 Sec. 241. Judgments In Rem. 
 
 There is another class of judgments which are technically 
 termed judgments in rem ; and these are conclusive, not only 
 as against parties and privies, l)ut also as against strangers. 
 A judgment in rem may perhaps be defined to be the judg- 
 ment of a court of exclusive or at least peculiar jurisdiction, 
 declaratory either of the nature and condition of some par- 
 ticular thino;, or of the condition and status of some particu- 
 lar person. This definition is by no means put forward as a 
 perfect one. Mr. Smith defined a judgment in rem to be
 
 740 EVIDENCE. [chap. XIX. 
 
 " an adjutlication (as its name indeed denotes) upon the 
 sfanis of some particular sul)ject-matter, by a tribunal having 
 competent authority Ibr that purpose."* And he takes ex- 
 ception to the inference to be drawn from some dicta, that 
 such a jndgment must be one of a court of exdatiive jurisdic- 
 tion. "The universal effect," he says, "of a judgment in 
 rem depends, it is submitted, on this principle, viz., that it is 
 a solenm declaration, proceeding from an accredited quarter, 
 concerning the Mains of the thing adjudicated upon ; lohich 
 very declaration ojperales accordingly ujpon Oie thing adjudi- 
 cated upon, and ipso facto renders it such as it is thereby 
 declared to be." And he afterward says : "And it is sub- 
 mitted, that this nmst be Lord Coke's meaning where he 
 states in 1 Inst. 352 b. that * where the record of the estoppel 
 doth run to the di.sal)ilitie or legitimation of the person, there 
 all strangers shall take ijencfit of that record, as oullarvrie, ex- 
 cmnmengement, profession, attainder ofprmmunire, (&c.,felonie, 
 <&c., hastardie, 7nulier tie, and shall conclude the i)arties, thongh 
 they be strangers to the record.^ In all these cases, it will be 
 observed, the record operates upon the status of the individ- 
 ual." But it is also to be observed, that in all these cases, 
 the judgment is that of a court of exclusive, or at least, pe- 
 culiar jurisdiction. 
 
 The term "judgment in rein^' is, perhaps, in strictness, 
 objectionable when applied to the status of a jyerson. The 
 term itself is probably derived from the civil law, where ac- 
 tions were classed as actiones in personam and actiones in 
 rem; the former including actions upon contract or for in- 
 juries (" ex contractu vel ex malejicio'') ; the latter referring 
 to actions in which some particular thing was the subject- 
 matter of the controversy (" cum movet alicui de aliqua re 
 controversial'''')?' The distinctive difference between these 
 actions and our " personal and real actions," is known to 
 evei-y laAvyer. Under the Roman law, therefore, a judgment 
 in rem, generally, was " ut rem ipsam restituat {possesso7') 
 cum fructihus. ' ' ^ 
 
 ' 2 Smith's Lead. Ca. 439. ' Inst. lib. 4, tit. 17, § 2. 
 
 ' Inst. lib. 4, tit. 16, § 1.
 
 SEC. 242.] DOCUMENTARY EVIDENCE. 741 
 
 A judgment in rem in our kw may properly l)c so termed 
 when it is the sentence of a court declaring the nature or 
 quality of a particular thing ; e. g., the decision of the court 
 of admiralty declaring a vessel to be lawful prize; or a 
 judgment of condemnation for forfeiture, under the excise 
 laws by the court of exchequer. Where, however, the 
 judgment declares the condition or status of a j^erson, it 
 would seem to be more properly termed a judgment quasi 
 in rem. 
 
 Sec 242. What Parties Bound by a Judgment. 
 
 A judgment is conclusive between the same parties, between 
 all claiming under the parties ; and it is only just that if the 
 parties to a suit are to be bound by a judgment, all claim- 
 ing under them ought likewise to be bound. It was re- 
 solved l3y Holt, C. J., and the other judges of the court, 
 that no record of a conviction or verdict can be given in evi- 
 dence, l)ut such whereof the benefit may l>e mutual : that is, 
 Buch as might have been given in evidence, either for the 
 plaintiff or the defendant.^ Gilbert, C. B., lays it down, 
 *' that nobody can take benefit by a verdict wdio had not 
 been prejudiced by it, had it gone contrary."^ 
 
 1 R. v. Warden, Holt, 134 ; B. N. (N. C), 34 ; Kazer v. State, 5 Hamm. 
 
 P. 233. It is a rule of estopi>els, (Ohio), 280 ; Maybee v. Avery, 18 
 
 that they must be reciprocal. Co. Johns. (N. Y) 352, 354. In Hurst's 
 
 Lit. 352; Com. Dig., tit. Estoppel; Lessee v. M'Neil (1 Wash. C. C. 
 
 Gaunt V. Wainman, 3 N. C. 69 ; 70, 75), the defendant's counsel 
 
 Marchant v. Errington, 6 id. 79. offered to read the recoi-d of a 
 
 * Gib. Ev. 28 ; B. N. P. 232 ; trial between the lessor of the plain- 
 Ward V. Wilkinson, 4 B. & A. 412. tiff and one Pemberton ; it does not 
 The case of Whateley v. Menheim, appear what the precise object of 
 3 Esp. 608— where a verdict on an this evidence was, nor in what rela- 
 issue directed by the court of ex- lion Pemberton stood to the matter 
 chequer to try a question of part- in disijute ; but per Washington J., 
 nership, was used by a stranger — "Such evidence is inadmissible. If 
 does not appear consistent with there be a point completely settled 
 principle. Lansing v. Montgomery, and at rest, it is this : that a verdict 
 2 Johns. (N. Y.) 382 ; Paynes v. between different jiersons cannot be 
 Coales, 1 Munf. (Va.) 373 ; Worces- given in e^-idence in a suit of one of 
 ter •». Green, 2 Pick. (Mass) 425; the parties against a stranger. It 
 Hyer 1). Atwater, 4Day (Conn.), 431; is true that in that case, Hurst, 
 Case u Reeve, 14 Johns. (N. Y.) 79, against whom the verdict is offered, 
 83 ; M'Kellar v. Bowell, 4 Hawks had an opportunity of cross-examin-
 
 742 
 
 EVIDENCE. 
 
 [chap, xrx. 
 
 It seems obviously unjust that proceedings should l)e evi- 
 dence ctfjaiiitit a stranger, ina^juiuch as he had no opportunity 
 of caUing witnesses, or of cross-examining those on the other 
 side, or of appealing against the judgment.' 
 
 On a bill in chancery against the executors of A., seeking 
 to cluuire the estate with a debt due from the firm of A. & 
 B., and stating the insolvency of B., the surviving partner ; 
 held, that a judgment at law against B., as surviving part- 
 ner, in favor of the complainant, was no evidence of the 
 existence of a debt from the firm, as against the executors, 
 for there was no privity between B. and the executors ; and 
 the latter had no opportunity of being heard in the suit 
 against B. The judgment, however, was allowed to be evi- 
 
 ing ; yet it cannot be offered against 
 Hurst, unless he might have offered 
 it had it been in his favor. This is 
 the settled rule. Non constat that 
 the evidence necessary or supposed 
 necessary by Hurst, in that case, 
 was the same as in this. He might 
 have been unsuccessful there, for 
 many reasons which do not now 
 exist — the absence of witnesses or 
 the like." And though in the sec- 
 ond suit one of the plaintiffs and all 
 the defendants are the same as in 
 the first, yet if' they are new plain- 
 tiffs in the second suit, against whom 
 the judgment in the first suit could 
 not have been used had it been ad- 
 verse, it shall not be admitted in their 
 favor. Baring v. Fanning, 1 Paine 
 (U. 8.), .540 ; Chapman v. Chapman, 
 1 Mnnf. (Va.) 398. And it makes 
 no difference that the new parties, 
 as assignees of a chose in action, 
 are endeavoring, together with the 
 assignor, to enforce the same right 
 that was established in the foi-mer 
 suit in favor of the assignor. Thus, 
 where C. shipped on board a vessel 
 belonging to the defendants, a cargo 
 of merchandise, consigned to the 
 latter, who were mer(;hants at New 
 York, to be sold for the account of 
 
 C, and on its arrival C. assigned 
 the cargo and its proceeds to B., M. 
 and R. ; held, that on a bill tiled by 
 C., B., M. and R. against the de- 
 fendants, praying an account of the 
 proceeds of the shipment, &c., a 
 decree in a cause between C. and 
 the defendants, in which a large 
 balance was established against the 
 latter, could not be given in evi- 
 dence by the i:)laintiffs. Baring v. 
 Fanning, supra. 
 
 * The rule stated in the text has 
 been recognized in many cases. 
 Paynes v. Coales, 1 Munf. (Va.) 373 ; 
 Jackson v. Vedder, 3 Johns. (N. 
 Y.)8; Case v. Reeves, 14 id. 79; 
 Twambly v. Henley, 4 Mass. 441, 
 442 ; Wood v. Stephen, 1 S. & R. 
 (Penn.) 17.5; Johnson v. Bourn, 1. 
 Wash. (U. S.) 187 ; Cowles v. Harts, 
 3 Conn. 516 ; White v. Madison, 26 
 N.' Y. 117 ; Mersereau v. Pearsall, 
 19 N. Y. 108. And it is no less 
 applicable to criminal than civil 
 cases. Accordingly, where two 
 were indicted separately for the 
 same arson, one con\'icted and judg- 
 ment passed, held that the record 
 was not admissible evidence against 
 the other. Krzer v. The State, 5 
 Hamm. (Ohio) 280.
 
 SEC. 242.J DOCUMENTARY EVIDENCE. 743 
 
 deuce so far as to prove the fact that the complainant had 
 sued B. and recovered.^ 
 
 In a Pennsylvania case, when defendants, on being sued, 
 plead in al)atenient the non-joinder of others as partners, 
 and succeed, the record cannot be nsed in a suljsequent suit, 
 in which such others are joined, to charge them as liable with 
 the rest. Against those who pleaded, the record is evidence 
 that all who were alleged to be partners are so in fact ; l)ut 
 the others must be proved partners in the ordinary way.^ 
 
 A record is evidence against one who might have been a 
 party to it, for he cannot complain of the want of those 
 advantages which he has voluntarily renounced.^ 
 
 An agreement between several persons, liable upon the 
 same instrument to be bound by a verdict against one, may 
 so far connect the rest Avitli the proceeding as to render the 
 verdict admissible in an action against them. Thus a special 
 verdict, given in another action on the same policy of insur- 
 ance, but against a different underwriter, has been received, 
 where it was shown that all the underwriters had agreed to 
 be bound by one verdict ; for under the agreement they 
 were each entitled to interfere on the former trial and cross- 
 examine witnesses. It was held, however, not conclusive.* 
 
 But a person is not to be in any measure affected by a 
 decision between others, merely because he was present at 
 the trial and cross-examined the witnesses. He must, like a 
 party, have had a full, fair ?a\<i j^revious opportunity to meet 
 the question in controversy.^ 
 
 By the civil law, the case of principal and surety is not 
 within the rule of res inter alios acta, and if the creditor 
 recovers against the principal, he may use the judgment to 
 conclude the surety.^ But this is upon reasons and princi- 
 ples peculiar to that system, which in fact regards the prin- 
 cipal and surety as the same party, and allows the latter " to 
 
 ' Sturges V. Beach, 1 Conn. 507. ' Turpin v. Thomas, 2 H. & M. 
 
 " Witner v. Schlatter, 2 Rawle (Va.) 139, 147. 
 
 (Penn.), 359. ' 1 Evans' Poth. 5G2; Kip v. Brig- 
 
 « Bac'. Ab. Ev. F. 616 ; 1 Starkie's ham, 6 Johns. (N. Y.) 159 ; Laralde 
 
 Ev. 195. ■?'• Derbigny, 1 Miller (La.), 85; 
 
 * Patton V. Caldwell, 1 Dall. (U. Munfordi). Overseer's, 2 Rand. (Va.) 
 
 S.) 419. 313.
 
 744 EVIDENCE. [chap. XIX. 
 
 appeal iiguiiist the judgment, or to ibriu an oppo.sition to it, 
 it' it is the lust resort.' 
 
 At connnon law a dilicrent doctrine prevails ; accordingly, 
 where the sureties of ti guardian were prosecuted to subject 
 them upon the guardian l)ond for the default of their prin- 
 cipal, the record of recovery against the guardian was held, 
 in North Carolina, not admissible for the plaintilf.^ A judg- 
 ment aijainst a debtor on a bill for account is not evidence 
 against a guarantor having no notice of the suit.^ 
 
 So in Pcimsylvania, the record of a verdict and judgment 
 in an action on a recognizance for good behavior, against 
 the principal, was held not admissible to })rove that he had 
 broken his recognizance in an action against the surety.* 
 
 But in Virginia a wider range has been apparantly given 
 to the judgment against the principal ; and it seems there 
 to be allowed i\^ prima facie evidence againt:t the surety on 
 all points established by it.^ And the same rule prevails 
 in Ohio ; and if the sureties have notice of the suit 
 against the principal, and an opportunity to defend, the 
 judgment will be conclusive.^ 
 
 So. in covenant upon a general warranty in a deed of land, 
 a judgment b}- a person claiming title against the vendee, of 
 which the vendor had no notice, was held competent evi- 
 dence to prove an eviction, l)ut not to establish that such 
 eviction was by title paramount.'' 
 
 * 1 Evans' Poth. 562; McKellei*'?). quent suit upon the recognizance 
 Bowell, 4 Hawks (N. C), 34; Mun- against the sheriff and sureties 
 ford V. Overseers, ante. jointly, but not conclusive. 
 
 " M'Kellar v. Bowell, Hawks, (N. " Munford v. Overseers, 2 Rand. 
 C.) 34; Mecklenburgh v. Clark, (Va.) 313 ; Baker ?;. Preston, 1 Gil- 
 id. 43. mer (Va.), 335 ; Jacobs v. Hill, 2 
 
 ^ Jackson v. Gi-iswold, 4 Hill (U. Leigh (Va.), 393 ; Braxton v. Wins- 
 
 S.), 522. low, 1 Wash. (Va.) 31. 
 
 * Respublica v. Davis, 3 Yeates * State v. Colei-ick, 3 Hamm. 
 (Penn.), 128. In Carmack v. Com- (Ohio), 487. 
 
 monweath, 5Binn. (Penn.) 184, how- ' Booker ■«. Bell, 3 Bibb (Ky.), 
 
 ever, it was decided that a judg- 175 ; Prewitt v. Kenton, id. 280 ; 
 
 meut in an action against the sheriff Radcliff v. Ship, Hardin (Ky.), 292 ; 
 
 alone, of which his sureties had no Somerville's Ex'rs v. Hamilton, 4 
 
 notice, w!if>, prhna facie evidence of Wheat. (U. S.) 230. 
 the amount of damages, in a subse-
 
 SEC. 242.] DOCUMENTARY EVIDENCE. 745 
 
 So, ill actions by the vendee of personal property against 
 tiie vendor, upon a warranty of title, a judgment obtained 
 for the property against the vendee by a third person claim- 
 ing to be the rightful owner, in a suit of which the vendor 
 had no notice, cannot be given in evidence to prove that the 
 latter had not title.^ 
 
 And where the assignee sued the assignor of a chose in 
 action, it was held that a verdict and judgment in favor of the 
 maker, at the snit of the assignee, in which the jury found 
 that the demand assigned had been paid previous to the 
 assignment, could not be given in evidence to prove the 
 fact thus found, iniless the assignor had due notice of the 
 first action, and an opportunity to meet the defense there 
 set up. But where it is necessary that the assignee, in the 
 exercise of due diligence, should prosecute the maker to- 
 judgment and execution, the judgment would be evidence 
 to prove the fact of such diligence.^ 
 
 So, where the indorsee of a note sued the maker, and 
 failed because the consideration was usurious, it was held that 
 the verdict and judgment were not evidence for the indorsee, 
 in an action against the indorser (who was also the original 
 payee), in order to establish the usury. "The record is 
 proof of the proceedings and judgment, and nothing more." ^ 
 
 The same doctrine prevails in actions for indemnity ; as 
 where A. sued B., on a promise by the latter to save him 
 harmless for selling certain goods as a constabla under an 
 execution against C. ; it was held, that a judgment against A. 
 for selling the goods obtained by D. in a suit of which B. had 
 no notice, was not evidence of C.'s want of title : though it 
 might be received to prove that D. had asserted his right to 
 the goods, and that what A. had paid, he was compelled to 
 pay by legal process.'* 
 
 ' Stephens-?j.Jaok,3Yerg-. (Tenn.) Coventry v. Barton, 17 Johns. (N. 
 
 •403; Sanders V. Hamilton, 2 Hay w. Y.) 142; Sanders v. Hamilton, 2 
 
 (Tenn.) 226; Jacob v. Pierce. 2 Hay w. (Tenn.) 282 ; Stone t). Hook- 
 
 Rawle (Penn.), 204. er, 9 Cow. (N. Y.) 154. There are 
 
 « Maupin v. Compton, 3 Bibb other authorities which seem to 
 
 (Ky.), 214. favor the admissibility of the judg- 
 
 ^ Copp 7). M'Doug-all, 9 Mass. 1. ment, under such circumstances as 
 
 '* Burrill -y. West, 2 N. H. 190; jjrma/ade evidence upon all points. 
 
 I
 
 74G EVIDENCE. [CIIAP. XIX. 
 
 "Where, however, ti party h:is a right of recovery over, 
 secured to liiin either l^y operiilioii of law or express con- 
 tract, and he has given the person so responsible due notice 
 of the suit, the judgment, if obtained without fraud or col- 
 lusion, will be conclusive evidence for him against such per- 
 son upt)n every fact estal)lishcd by it. The latter, then, 
 cannot be viewed in the light of a mere stranger, but has the 
 same means of controverting the adverse claim, as though he 
 were the nominal and real party on the record.^ 
 
 Sec. 243. Proceedings between Strangers. 
 
 Proceedings l)etween persons who are strangers to the suit 
 are considered res inter alios actce ; and they are not admis- 
 sible, even though they are oflcred not for the purpose of 
 "binding a party to the suit, but merely as evidence of some 
 collateral fact. Thus, in an action of ejectment, where it 
 became material to show that a private act of parliament 
 had l)een passed in the reign of Edward the Sixth, which 
 act could not be found after due search, it was proposed to 
 giVe in evidence a special verdict in the reign of Charles 
 the Second, wherein the jury found that such an act had 
 been passed, and its provisions were set Ibrth in Jicec verba; 
 but there being nothing to connect the parties to the eject- 
 ment with the i)arties to the suit in which the special verdict 
 was given, it was held not to be admissible. 
 
 Sec. 244. Rule with reference to Real and Nominal Parties. 
 
 But in the same manner as admissions may be used against 
 the real i)arties to a suit, though they are not the nominal par- 
 ties to the record, it has been held that verdicts and judgments 
 are receivable in evidence against the parties on whose account 
 
 Train v. Gould, 5 Pick. (Mass.) 380 ; as laid down in Bunill v. West, 
 
 Bond V. Wav.l, 1 N. & M'C. (S. C.) snpra. 
 
 201 ; Leather v. Poultney, 4 Binn. ' Leather v. Poultney, 4 Binn. 
 
 (Penn.) 352, 3.56 ; State v. Colerick, (Ponn.) 352, 35fi ; Hamilton v. Cutts, 
 
 3 Hamm. (Ohio), 487 ; Tyler v. Ul- 4 Mass. 349, 353 ; Bender v. From- 
 
 mer, 12 Ma.ss. 163, 166, per Parker, berger, 4 Dall. (Penn.) 436 ; Witmer 
 
 C. J. But we believe the doctrine, v. Sclilatter, 2 Rawle (Penn.), 204. 
 with its proper qualifications, to be
 
 SEC. 245.1 DOCUMENTARY EVIDENCE. 747 
 
 the suits in which the judgments were obtained were insti- 
 tuted or defended. 
 
 Upon this principle, the equitable assignee of a chose in 
 action has been estopped by a verdict and judgment thereon, 
 in the same manner as if he were a party to the record, the 
 suit having been prosecuted in the name of another for his 
 benefit, and at his request and expense.^ Where the same 
 person was, in fact, a party to the former suit, having been 
 sued l)y a wrong name, the mere misnomer is not sufficient 
 to prevent the admission of the record in evidence ; the parol 
 proof will be received to show that notice in the former suit 
 was served upon the party in the latter, though the name 
 was different, and that he appeared in such suit and attended 
 the taking of depositions therein.^ The former judgment is 
 not admissible unless rendered in an action between the same 
 parties.^ 
 
 Sec. 245. Rule as to Judgment in Ejectment. 
 
 Upon the ground that the lessor of the plaintiff and the 
 tenant are substantially the real parties to an ejectment, a 
 judgment in ejectment is admissible evidence in an action /or 
 mesne j)roJits, and this, whether the action Ije brought by the 
 nominal plaintiff, or by the lessor of the plaintiff, and whether 
 the judgment be upon verdict or by default ; but the judg- 
 ment is not conclusive, unless pleaded by way of estoppel.* 
 It seems to be settled also, that a judgment recovered by the 
 defendant against the same lessor of the plaintiff in a former 
 
 • Rogers v. Haines, 3 Me. 362. Lessee v. Dunning, 4 Dall. (Penn.) 
 ^ Stevelie v. Reid, 2 Wash. (U. S. 120. This was upon the ground that 
 
 C. C.) 274. Contra, Allen v. Hall, the parties were really, though not 
 
 1 Marsh. (Ky.) 526. nominally, the same in both suits. 
 
 ^ Mersereau v. Pearsall, 19 N. Y. See Rogers ?'. Haines, 6 Greenl. 362, 
 
 108. cited ante, note, 255. The omission 
 
 * Doe V. Huddart, 2 C. M. & R. to strike out the name of the casual 
 316. And see Lewes v. Preece, 1 ejector, and insert that of the real 
 Tyrw. 410 ; B. N. P. 87, 232 ; Doe v. defendant, is amendable after ver- 
 Harlow, 12 Ad. & El. 42, n. In eject- diet ; and if the real defendant enters 
 ment between A. & B., the record of into the common rule, proceeds to 
 a former judgment in an action of trial, &c., the judgment will be as 
 trespass between B. and the cestui conclusive against him as if the issue 
 que trust of A., has been held ad- had been corrected. Bailey ■». Fair- 
 missible in Pennsylvania. Calhoun's play, 6 Binn. (Penn.) 405.
 
 748 EVIDENCE. [chap. XIX. 
 
 ejectment, is iidmissible in evidence on the trial of a second 
 ejectment by the same lessor of the plaintiif.^ A judgment is 
 in no case conclusive, unless pleaded by way of estoppel. It 
 could not be pleaded in ejectment, because the defendant is 
 bound by the terms of the consent rule to plead not guilty ; 
 but if the parties are the same, it is evidence to go to the 
 jury. A record in replevin, between a tenant and the bailiff 
 of his landlord making cognizance under him, has been held 
 to be admissible evidence in a subsequent action between the 
 tenant and the landlord himself? 
 
 Sec. 246. When the Parties are the Same, biit not Suing in the Same 
 
 Right. 
 
 Though the individual be the same in the two suits, yd if 
 he stood in a different relation or character on the two occa- 
 sions, he will not be affected by a verdict or judgment in the 
 first suit. This doctrine has been established in regard to 
 estoppels. A woman is not estopped, after coverture, by an 
 admission on record by her husband and herself during cover- 
 ture ; and an heir, claiming as heir of his father, is not estop- 
 ped by an estoppel upon him as heir to his mother.^ A party 
 suing as executor in an action of debt upon a bond will not 
 be estopped by having been barred in an action upon the 
 same bond when he sued as administrator ; l)ut he may show 
 that the letters of administration have been since repealed." 
 The general rule does not apply to a case where the plaintiff 
 uses a record in a former suit against the defendant, whom 
 he is suing for negligence as his servant or agent, not to prove 
 the fact of the injury or negligence (for the record is not 
 admissible for that purpose), but merely to prove the amount 
 of damages which he has l)ecn (lompelled by law to pay to 
 another person (the })laiutilf in the former recorded suit).^ In 
 debt by A. against B. and C, on a joint and several bond, the 
 condition of which, after reciting that C. had been appointed 
 
 ' strode v. Seaton, 2 C, M. & R. ^ Com. Di^., tit. Estoppel, C. 
 731. See B. N. P. 232 ; 4 Bac. Al)., * Robinson's Case, 5 Coke, 32 b. 
 tit. Evidence, F. See also Wi-ight ' Green v. New River Company, 
 
 V. Tatham, 1 Ad. & El. 19. 4 T. R. .590. See also Pritchard V. 
 
 » Hancock v. Welsh, 1 Stark. 347. Hitchcock, 6 M. & G. 164.
 
 SEC. 247.] DOCUMENTARY EVIDENCE. 749 
 
 collector of taxes, and that A. had agreed to become his 
 surety, was that B. and C. should indemnify A. from all 
 costs and charges which he should incur in consequence of 
 his becoming such surety ; the declaration alleged that C. had 
 made default in not paying over a sum of money to the 
 receiver-general, and assigned for breach, that by reason of 
 such default A. had been compelled to pay £500 to the 
 receiver-general ; it was held that the mere production of a 
 judgment signed against A., under a judge! s order, for £500, 
 at the suit of the receiver- general, was not evidence of the 
 amount of damage sustained by A. in consequence of his 
 suretyship.' On questions of public or general interest, such 
 as questions of right of way and the like, verdicts and de- 
 crees in suits in which the same right was in litigation, are 
 admissible in evidence, although such suits were between 
 diflerent parties ; such evidence being in the nature of evi- 
 dence of reputation. 
 
 Sec. 247. How far a Judgment Concludes a Party. 
 
 A judgment concludes the parties only as to the grounds 
 covered by it and the facts necessary to uphold it. They will 
 not be allowed to prove what is inconsistent with its recti- 
 tude and justice, for while it stands unreversed, it is final as 
 to the points decided ; not so, however, with respect to 
 mattei-s which the judgment itself shows were not in ques- 
 tion ; and hence, where the cause has gone off upon some 
 defect which precluded an inquiry into the merits, the judg- 
 ment is usually no bar to a second action. So the reversal 
 of a judgment proves nothing but its own correctness ; it 
 operates no farther than to nullify what has been done ; and 
 in other respects the parties are generally left by it in the 
 same situation, as to their rights and remedies touching the 
 matter in controversy, as if no such judgment had ever ex- 
 feted. Therefore, where a decree of the supreme court of 
 probate reversed that of the inferior court decreeing distri- 
 bution, such reversal was held no bar to a bill in chancery 
 for the same matter.^ And upon the same principle the dis- 
 
 ' King V. Norman, 4 C. B. 884. * Harvey v. Richards, 2 Gall. (U. 
 
 S.) 210.
 
 750 EVIDENCE. [chap. XIX. 
 
 mission of a bill in chancery is not always conclusive as to 
 the complainant's right in a court of law, although the bill 
 may have been filed for the same matter ; for if the com- 
 plainant seeks in a court of equity to enforce a strictly legal 
 title when his remedy is at law, the dismission of the bill 
 amounts merely to a declaration that he has no equity ; but 
 it casts no reflection upon his legal title, it decides nothing 
 in relation to it and consequently can conclude nothing.' 
 And though a decree in express terms professes to affirm a 
 particular fact, yet if such fact was innnaterial in the case, 
 the decree will not conclude the parties in relation to it.^ 
 
 Where the cause and ol)ject of both actions arc the same, 
 a judgment in the prior bars the subsequent suit. Where 
 the cause or oljject of the actions are difterent, though the 
 point in dispute is the same in both, the prior judgment is 
 no bar to the subsequent action, but the verdict is matter of 
 evidence to prove such point. But although a prior judg- 
 ment may be no bar, strictly and technically speaking, where 
 the cause or object of both actions are not identical, it does 
 not follow that cither party in the second action can be al- 
 lowed to contradict what was expressly adjudicated in the 
 first.^ In a case before the United States supreme court,* the 
 facts were that Lee sold Hopkins an estate, called " Hill and 
 Dale," then under certain incumljrances, which Lee agreed 
 to remove ; and Hopkins was to pay therefor $1,800, partly 
 in military lauds and partly in some other way, as soon as 
 the incumbrances were removed. Hopkins filed a bill in 
 chancery against Lee, stating that Lee had omitted to pay 
 the incumbrances, and that he, Hopkins, had been compelled 
 to pay them. Upon hearing the bill, the court found th:it 
 Hopkins had satisfied the incumbrances, but with the funds 
 of Lee, advanced for that purpose, and thereupon decreed 
 that Hopkins should pay Lee the overplus remaining in his 
 
 ^ Lessee of Wright v. Deklyne, 1 138 ; Coit v. Tracy, 8 Conn. 268 ; 
 
 Pet. (U. S. C. C.) 198 ; Pleasants v. People v. Johnson, 37 Barb. (N. 
 
 Clements, 2 Leigh (Va.), 474,483. Y.) 502. 
 
 See Burchet v. Faulkner, 1 Dana ^ Betts v. Stai-r, 5 Conn. 550. 
 
 (Ky.), 99, 100; Lancaster v. Laire, * Hopkins v. Lee, 6 Wheat. (U. 
 
 id. 109. S.) 109. 
 
 ' Hotchkiss V. Nichols, 2 Day, 
 
 H
 
 SEC. 247. j DOCUMENTARY EVIDENCE. 751 
 
 hiiuds after pajdiig off the incumbrances. Lee then brought 
 an action of covenant against Hopkins for not conveying 
 the miUtary lands agreeable to covenant ; to which Hopl?;ins 
 pleaded that Lee had never discharged tlie incuml)rances on 
 the estate of Hill and Dale. -Said the court: "No lawyer 
 can suppose that, let the judgment or decree on the bill in 
 chancery have been either way, it could have been pleaded 
 in l)ar to the last action of covenant l)rought by Lee against 
 Hopkins. The object of the bill in chancery was to get re- 
 funded money, which the purchaser of an estate alleged that 
 he had been obliged to expend, to free the estate from incum- 
 brances which the seller was l)ound to remove. The object 
 of the action at law was to recover damages for not convey- 
 ing the militar}^ lands, which were to be taken in part pay- 
 ment. Nothing could have been more distinct than tlie object 
 of the two suits ; they were not for the same matter, cause 
 and thing, and let the issue of the bill in chancery have Ijeen 
 as it might, the decree could not have been pleaded in bar 
 of the action at law. But bij roay of evidence, the decree 
 in chancery was held conclusive to prove that Lee had dis- 
 churofed the incumbrances on the estate, that being the mat- 
 ter directly adjudicated upon in the suit in chancery." And 
 where a mortgagee In-ought ejectment to recover the mort- 
 gaged premises, and the mortgagor, on the trial, offered evi- 
 dence to prove that the note which the mortgage was intended 
 to secure was usurious and void ; to which the mortgagee 
 objected, on the ground that the mortgagor was estopped to 
 show the alleged fact, by reason of a former judgment ; tlie 
 record of that judgment was produced, and it appeared fiom 
 it that the mortgagee had sued the mortgagor on the note, 
 that the latter had pleaded non-assumpsit therein vrith notice 
 of the usury, and that a verdict and judgment were rendered 
 for the mortgagor. It was conceded that the sole question 
 litigated in the former suit was the same sought to be again 
 controverted in the last. The judge thereupon sustained 
 the objection, holding the first judgment conclusive in rela- 
 tion to the usury ; and the supreme court afterward, on 
 motion for a new trial, affirmed the decision.^ So, though 
 
 * Betts V. Starr, ante.
 
 752 EVIDENCE. [CIIAP. XIX, 
 
 nothing can certainly be more distinct than the object of 
 an ejectment in Enghuid, and the action of trc-ipaas on the 
 case for mesne profits, yet the judgment in ejectment is 
 conchisive against tlie defendant ujjon the rigJ it of possession^ 
 at the time of the demise laicKin the dcchiration. 
 
 Indeed the principal will bo found to run througii nearly 
 all the American cases, that the judgment of a court of com- 
 petent jurisdiction directly upon a particular point is, as 
 between the parties, conclusive in relation to such point, 
 though the purpose and subject-matter of the two suits be 
 different ; and hence that a judgment may not only be 
 evidence but conclusive evidence, and still be no bar to a second 
 action.^ A former suit is a bar only to such claims or mat- 
 ters as might have been litigated under the pleadings and 
 issue as made.^ It is not a l)ar as to matters which might 
 have arisen incidentally or collaterally, such as a payment 
 made on a demand.^ Nor as to an allegation in the com- 
 plaint in such former action, the truth of which was not in- 
 volved in the judgment rendered.^ Nor will a judgment by 
 default on one of two notes, given upon an illegal contract, 
 preclude the defendant from interposing his defense to an 
 action on the second note.^ But where the principal ques- 
 tion, upon which the plaintiff's right of recovery de- 
 pends, has been determined in a former action, such 
 former adjudication will be held conclusive in a new ac- 
 tion on one of several securities springing out of the same 
 transaction.^ As between the parties and privies a judgment 
 is conclusive as to every question upon which the right of 
 the plaintiff to recover, or the validity of a defense in another 
 suit is found to depend, and upon the determination of which 
 
 * Betts V. Starr, 5 Conn. 550; Y.) 168; Bates v. Stanton, 1 Duer 
 Wright V. Deklyne, 1 Pet. (U. S. C. (N. Y.), 79. 
 
 C.) 198 ; Starkie V. Woodward, 1 N. ' Smith v. Weeks, 26 Barb. (N. 
 
 & M'Cord (S. C.) 329 ; Canaan v. Y.) 463. 
 
 Greenwoods Turnp. Co., 1 Conn. 1 ; * Sweet v. Tuttle, 14 N. Y. 465. 
 
 Cistt). Zeigler, 16S. &R. (Penn.)282; * Hughes v. Alexander, 5 Duer 
 
 Gardner v. Buckbee, 3 Cow. (N. Y.) (N. Y.), 488. 
 
 120 ; Wright v. Bntlor, 4 Woiid. (N. « Birkhead v. Brown, 5 Sandf. (N. 
 
 Y.) 284. Y. 134.) 
 
 * Burdick V. Post, 12 Barb. (N.
 
 SEC. 247.] DOCUMENTARY EVIDENCE. 753 
 
 it appears from the record or is shown by extrinsic proof 
 tliat the judgment was in reality founded. If a defense be 
 interposed and prevail, the fact or facts on which it is based 
 become re.s- adjudicata ; thus a defense of usury estal^lished 
 renders the usurious security void for any future use or 
 purpose.^ 
 
 The rule as to the conclusiveness of judgments has found 
 its way into every system of jurisprudence, not only from its 
 obvious fitness and propriety, but because without it an end 
 could never be put to litigation. It is, therefore, not con- 
 fined in England or in this country to judgments in the same 
 courts, or to decisions of courts of concurrent jurisdiction.^ 
 It has been applied to decrees of the orphan's court of Penn- 
 sylvania,^ to a discharge under the insolvent laws ;^ to a de- 
 cision of the court of probates, though admitted to be erro- 
 neous f to a decree of the county court upon a complaint 
 pursuant to the statute, by which decree it was found the 
 duty of a town to repair certain bridges f to a decision of 
 a court of common pleas, upon a complaint made pursuant 
 to the statute, for overflowing lands ;? to a decree of the 
 county court, awarding money to a claimant, arising from 
 the sale of lands by the sherifl* though the decree was made 
 upon a mistaken notion of law, and though the case admitted 
 of no remedy by writ of error f to record of the for- 
 feiture of a recognizance, where debt was brought upon such 
 recognizance f to decrees of a court of equity ; to sentences 
 of courts of admiralty and of ecclesiastical trilnmals, and in 
 short to every court which has proper cognizance of the 
 
 ' Central City Bank v. Dana, 32 Jackson v. Robinson, 4 Wend. (N. 
 
 Barb. (N. Y.) 296. Y.) 436. 
 
 "^ Hopkins v. Lee, 6 Wheat. (U. ® Canaan v. Greenwoods T. Co., 
 
 S.) 109, 114. 1 Conn. 1. 
 
 ' President of the Orphan's Court ' Adams v. Pearson, 7 Pick. 
 
 V. Goff, 14 S. & R. (Penn.) 181 ; (Mass ) 341 ; Gay v. Welles, id. 217. 
 
 M'Pherson v. Cunliff, 11 id. 422. ^ Gratz v. The Lancaster Bank, 
 
 * M'Kinney v. Crawford, 8 S. & 17 S. & R. (Penn.) 278. 
 
 R. (Penn.) 351; Sheets iJ. Hawk, 14 ' Shriver v. Commonwealth, 2 
 id. 173. Rawle (Penn.), 206. 
 
 * Brown v. Lanman, 1 Conn. 467 ; 
 
 48
 
 754 EVIDENCE. [chap. XIX. 
 
 subject-matter, so fiir as they profess to decide the particular 
 matter in dispute.^ 
 
 Sec. 248. Effect of Foreign Judgments. 
 
 In Eiighiiid, the rule .seeins to be that, when a foreign 
 judgment is made the foundation of an action, it is conclu- 
 sive as to the merits.^ But when it comes incidentally in 
 question that it is only j;nma/«a«e evidence.^ But in our 
 courts directly the reverse of this rule generally obtains, and 
 a foreign judgment, when made the foundation of an action, 
 is no more than jmma facial evidence, and it may be im- 
 peached by showing that it was irregularly ol)tained, or, 
 indeed, upon almost any ground which would have been a 
 defense to the original suit.* In some cases it has been held 
 that if the defendant produces proof which is sufficient to raise 
 a presumption that the plaiutitt^'s original claim was ground- 
 less, the latter will l)e put to prove his claim de novo the same 
 !is though no judgment had Imen rendered.^ But the better 
 opinion seems to be, that if the foreign court had jurisdic- 
 tion of the subject-matter of the action and the parties, as 
 if the defendant was personally served with notice of the 
 suit in a legal manner, the judgment will he conclusive, and 
 especially is this the case where the defendant appeared and 
 answered the suit.^ 
 
 In Ohio, an action was brought on a justice's judgment of a 
 neighl)oring State, and Collet, J., delivering the opinion, 
 said : " Thisj udgment, although not within the act of Congress, 
 is within the provision of the constitution. It is a judicial pro- 
 ceeding, to which full faith and credit is to be given. A 
 
 » Hopkins v. Lee, 6 Wheat. (U. Johns. (N. Y.) 157; Robinson v. 
 
 S.) 109. Prescott, 4 N. H. 450 ; Hall v. Wil- 
 
 " Gold V. Canham, 2 Swanst. 325 ; liams, 6 Pick. (Mass.) 232 ; Gulick 
 Tarleton v. Tarlton, 4 M. & S. 21 ; v. Loders, 2 N. J. Eq. 68; Winches- 
 Phillips V. Hunter, 2 H. BL 410; tei-i). Evans, Cooke (Tenn.). 420. 
 Herbert v. Cook, Wils. 36 n. * King v. Gilder, 1 D. Chip. (Vt.) 
 
 » Houlditch V. Donegal, 2 CI. & 59. 
 
 F. 478. * Taylor v. Bryden, 8 Johns. (N. 
 
 * Barney v. Patterson, 6 H. & J. Y.) 173 ; Cincinnati. &c., R. R. Co. 
 
 (Md.) 182 ; Hoxie v. Wright, 2 Vt. v. Wynne, 16 Ind. 385 ; Sandford V. 
 
 267 ; Benton v. Burgot, 10 S. &. R. Sandford, 28 Conn. 6. 
 (Penn.) 240; Smith v. Lewis, 3
 
 SEC. 248.] DOCUMENTARY EVIDENCE. 755 
 
 State or nation is bound, and has the exclusive riffht to ad- 
 minister justice witliiu its territories to parties there contend- 
 ing. When the parties have had an opportunity of Ijeiug 
 heard, and a definitive decree has been pronounced, a regard 
 to this right and duty of every State and nation, and to just- 
 ice, requires that the justice of the sentence should not be 
 re-examined ])y the tribunals of another State or nation, un- 
 less it is shown that the sentence was obtained by fraud.^ 
 The courts in England had not uniformly regarded this 
 principle of the law of nations, therefore it was, it is prob- 
 able, that this was introduced into our constitution."^ It is 
 further said, that whether the court rendering the judgment 
 is a court of record or not, if it had jurisdiction, its decision 
 is conclusive, and, until it is reversed, the parties cannot 
 a<rain litio-ate the same matter, unless there was fraud in olj- 
 taining it.^ 
 
 And all the American cases agree, that where a foreign 
 judgment comes incidentally in question, it is conclusive.* 
 As where it is used as the foundation of a title derived under 
 it f or to show that the subject-matter of the action has once 
 passed in rem judicatem f or introduced by a guarantor, as 
 a defense, in order to sho\v that his principal was not lial)le.'' 
 or is relied upon by the garnishee in a foreign attachment, 
 for the purpose of protecting himself against the claims of 
 his oiiginal creditors f or by the underwriter, in a policy of 
 
 * Vat. b. 2, c. 7, § 84. ° Smith v. Lems, 3 Johns. (N. Y.) 
 
 "^ Silver Lake Bank v. Harding, 157. 
 
 5 Hamm. (Ohio) 545. ' Griswold v. Pitcairn, 2 Conn. 
 ^ See also Poorman v. Crane, 1 85. 
 
 Wright (Ohio), 347 ; Goodrich v. * Taylor v. Phelps, 1 H. & G. 
 
 Jenkins, id. 348 ; Silver Lake Bank (Md.) 492; see also Holmes v. 
 
 V. Harding, id. 430; Kuhn v. Mil- Remsen, 4 Johns. Ch. 460; S. C, 
 
 ler, id. 127. 20 Johns. 229 ; Bissell v. Briggs, 
 
 ' Barney v. Patterson's Lessee, 9 Mass. 462 ; Flower v. Parker, 
 
 6 H. & J. (Md.) 182, 202, 203; 3 Mas. (U. S.) 247; Perkins v. 
 Smith V. Lewis, 3 Johns. (N. Y.) Parker, 1 Mass. 117; note to An- 
 168, 169 ; James v. Allen, 1 Dall. drews v. Herriot, 4 Cow. (N. Y.) 
 (Penn.), 188 ; Andrews v. Herriot, 4 521 ; Scott v. Coleman, 5 Litt. 
 Cow. (N. Y.) 520, 521. (Ky.) 349, 350 ; Moore v. Spackman, 
 
 ^ Barney v. Patterson's Lessee, 6 12 S. & R. (Penn.) 287. 
 H. & J. (Md.) 182, 202, 203 ; Thomp- 
 son V. Tolmie, 2 Pet. (U. S.) 157.
 
 750 EVIDENCE. [chap. XIX. 
 
 iusiiniiice, to show a breach of warranty on the part of the 
 insnred, in an action upon the policy ;^ or by a party to justify 
 himself for acts done in virtue of it ;^ but all the cases agree 
 that a jiiclguient rendered without jurisdiction is void, and 
 to be treated as a nullity, whether it conies in question di- 
 rectly or collaterally.^ 
 
 A judgment of the supreme court or a circuit court of the 
 United States, when offered in evidence in a State court, is 
 not to be treated in rei>;ard to its effect as a forciy:n, but as a 
 domestic judgment.'* 
 
 By the constitution of the United States, it is declared 
 that " full faith and credit shall bo given in each State to the 
 public acts, records, and judicial proceedings of every other 
 State." And congress is authorized by general laws to pre- 
 scribe the manner in which such acts, records and proceed- 
 ings shall he proved, and the effect thereof. In pursuance 
 of this authority, congress, after providing for the mode of 
 proof, has declared that "the said records and judicial pro- 
 ceedings, authenticated as aforesaid, shall have such faith 
 and credit given to them in every court within the United 
 States as they have by law or usage in the courts of the State 
 from whence the said records are or shall be taken." By a 
 supplementary statute, the provisions of the original act are 
 extended to the records and judicial proceedings of the re- 
 spective territories of the United States, and the countries 
 subject to the jurisdiction of the United States. 
 
 There has been some diversity of opinion with respect to 
 the interpretation of this clause of the constitution, particu- 
 larly as to the words in the latter l)ranch of the section, 
 " and the effect thereof." Some judges have thought that 
 the word "thereof" has reference to the proof or authenti- 
 
 ' Croudson v. Leonard, 4 Cranch well, 1 Mass. 103 ; CoUett v. Keith, 
 
 (U. S.), 434. 2 East, 261 ; Thompson v. Tolmie, 2 
 
 » Bissell'U. Bi-iggs, 9 Mass. 462; id. 157. 
 
 Rapelje v. Emery, 2 Dall. (Penn.) * See Barney v. Patterson, 6 H. 
 
 231 ; Hoxie v. Wright, 2 Vt. 269. & J. (Md.) 182, 203 ; St. Albans v. 
 
 » Elliot V. Piersoll, 1 Pet. (U. S.) Bush, 4 Vt. 58 ; Pepoon v. Jenkins, 
 
 328 ; Fisher v>. Harnden, 1 Paine 2 Johns. Cas. (N. Y.) 119 ; Reed v. 
 
 (U. S.), 55 ; Holmes v. Boughton, 10 Ross, 1 Baldw. (U. S. C. C.) 86. 
 Wend. (N. Y.) 75 ; Walker d. Max-
 
 SEC. 248.] DOCUMENTARY EVIDENCE. 757 
 
 cation, so as to read ' ' and to prescribe the effect of such 
 proof or authentication." Others have thouglit that it re- 
 ferred to the antecedent words, " acts, records and proceed- 
 ings," so as to read " and to prescribe the effect of such acts, 
 records and proceedings." ^ Tliose who were of opinion that 
 the preceding section of the clause made judgments in one 
 State conclusive in all others, naturally adopted the former 
 opinion ; for otherwise, the power to declare the effect would 
 be either wholly senseless or congress would possess the 
 power to repeal or vary the full faith and credit given by 
 that section. Those who were of opinion that such judg- 
 ments were not conclusive, but only pi wia facie evidence, 
 as naturally embraced the other opinion, and supposed that 
 until congress should by law declare what the eilect of such 
 judgment should be. they remained only prima facie evi- 
 dence.^ 
 
 The former seems the interpretation generally adopted ; 
 but it is not practically of much importance which construc- 
 tion prevails, since each admits of the competency of con- 
 gress to declare the effect of judgments when duly authenti- 
 cated, which has been done. It may be stated, as a principle 
 now uniformly received and sanctioned throughout the Uni- 
 ted States, that the judgment of one of the Slate courts is 
 of the same dignity in every other State as in the one where 
 it was pronounced ; and hence, if in the courts of the State 
 where the judgment was pronounced, it is conclusive in its 
 operation as evidence, or otherwise, it must l)e equally so 
 and to the same extent in all the courts throughout the 
 Union.^ 
 
 > Bissell V. Brigg-s, 9 Mass. 462, Thatcher, G id. 129; Hoxie-w. Wrig-ht, 
 
 467 ; Winchester v. Evans, Cooke 2 Vt. 263 ; Buford v. Buford, 4 
 
 (Tenn.), 420; Hitchcock v. Aicken, Munf. (Va.) 241; Borden v. Fitch, 
 
 1 Cai. (N. Y.) 460 ; Green v. Sar- 1T> Johns. (N. Y.) 121 ; Andrews v. 
 
 mientclPet. (U.S. C.C.) 74; Field Montg-omery, 19 id. 162; Fields 
 
 V. Gibbs, id. 155; Commonwealth Gibbs, 1 Pet. (U. S. C. C.) 155; 
 
 V. Green, 17 Mass. 515. Commonwealth v. Green, 14 Mass. 
 
 2 3 Story's Const. 181. 515 ; Gibbons v. Living-ston, 6 N. J. 
 
 « Mills V. Duryee, 7 Cranch (U. L. 236 ; Newell v. Newton, 10 Pick. 
 
 S.), 481 ; Clark v. Carrington, 7 (Mass.) 470 ; Hall v. Williams 6 id. 
 
 id. 308 ; Hampton v. M'Connell, 3 232 ; Spencer v. Brockway, 1 Ham. 
 
 li^heat. (U. S.) 234 ; Mayhew v. (Ohio), 259 ; Benton v. Burgot, 10
 
 758 
 
 EVIDENCE. 
 
 [ciiAr. XIX. 
 
 All the casea uljovc cited will be found to agree that the 
 judgment of a neighboring State may be wholly impeached 
 by showing that the court rendering it had not jurisdiction; 
 and it makes no ditlerenee whether the judgment comes in 
 question directly or incidentally.' And if the judgment is 
 inconclusive in the State where it was rendered, or if it is 
 inquirable into there during a particular period and on cer- 
 tain conditions, it will be open to investigation to the same 
 extent everywhere else. This is an obvious deduction from 
 the foregoing position with regard to the effect of such judg- 
 ments generally. It is, moreover, directly sanctioned by 
 several well-considered cases,^ 
 
 Some of the authorities have a vague way of impeaching 
 such judgments by showing that they were fraudulently 
 obtained.^ Possibly this may mean fraud in acquiring juris- 
 diction ; as where jurisdiction has professedly been oljtained 
 
 S. &, R. (Penn.) 240 ; Mitchell v. 
 Osgood, 4 Me. 124 ; Wheeler -w. Ray- 
 mond, 8 Cow. (N. Y.) 311 ; Shun- 
 way V. Stilwell, 6 Wend. (N. Y.) 
 447 ; Starbuck v. Murray, 5 id. 148; 
 Holbrook v. Murray, 5 id. 161 ; 
 Rogers v. Coleman, Hard. (Ky.) 
 413 ; Scott V. Coleman, 5 Litt. (Ky.) 
 849; Evans v. Tatem, 9 S. & R. 
 (Penn.) 259, 260 ; Kean v. Rice, 12 
 id. 203 ; Gilman v. Houseley, 5 Mar- 
 tin's La. Rep., N. S. 6G1 ; Mackee 
 11. Cairnesv 2 id. 599 ; Clark v. Day, 
 2 Leigh (Va.), 172 ; Hayman v. Mil- 
 ler, 1 Bailey (S. C), 242 ; Holt v. 
 Alloway, 2 Blackf. (Ind.) 108 ; Gu- 
 lick V. Loder, 1 Green, 68 ; Earth- 
 man V. Jones, 2 Yerg. (Tenn.) 484. 
 See also, Jacobs v. Hull, 12 Mass. 
 25 ; Wade v. Wade, Cam. & Norw. 
 486 ; Betts v. Death, Addis. (Penn.) 
 265 ; Curtis v. Gibbs, 1 Penn 399 ; 
 Smith t). Rhoades, 1 Day (Conn.), 
 168 ; Wernwag v. Pawling. 5 G. & 
 J. (Md.) 500; Bradshaw v. Heath, 
 13 Wend. (N. Y.) 407; McRae v. 
 Mattoon, 13 Pick. (Mass.) 53; Tip- 
 ton V. Marytield, 10 La. 189 ; Hin- 
 
 ton V. Townes, 1 Hill (N. Y.), 439 ; 
 Adams v. Rowe, 14 Me. 89 ; Good- 
 ]'ich V. Jenkins, 1 Wi-ight (Ohio), 
 348; Hunt v. Lyle, 8 Yerg. (Tenn.) 
 142 ; 6 id. 412. 
 
 ' See Elliot v. Piersol, 1 Pet. (U. 
 S.) 328, 340; Thompson v. Tolmie, 
 2 id. 157 ; Holmes v. Boughton, 10 
 Wend. (N. Y.) 75 ; Bradshaw v. 
 Heath, 13 id. 407 ; Walker v. Max- 
 well, 1 Mass. 103 ; Fisher v. Harn- 
 don, 1 Paine (U. S. C. C), 55. 
 
 * Green v. Sarmiento, 1 Pet. (U. 
 S. C. C ) 74 ; Baugh v. Baugh, 4 
 Bibb (Ky.), 556; Curtis V. Gibbs, 
 N. J. Eq. 399 ; Rogers v. Coleman, 
 
 1 Hardin (Ky.), 420; Armstrong ?>. 
 Carson, 2 Dall. (Penn.) 302; 1 Sto- 
 ry's Com. on the Const. 183 ; Wern- 
 wag V. Pawling, 5 H. & J. (Md.) 
 500. 
 
 ' See Andrews v. Montgomery, 
 19 Johns. (N. Y.) 162 ; Borden v. 
 Fitch, 15 id. 121 ; Holt v. Alloway, 
 
 2 Blackf. (Ind.) 108 ; Silver Lake 
 Bank v. Harding, 5 Ham. (Ohio), 
 545.
 
 SEC. 248.] DOCUMENTARY EVIDENCE. 759 
 
 against a non-resident by attaching his property, and the 
 property attached was merely nominal, as a chip or the like, 
 or did not belong to the defendant. In such case the judg- 
 ment might ])e void, even by the local law;^ or it may relate 
 to instances where jurisdiction has been exercised in fraud 
 of the sovereignty which had the rightful and exclusive 
 jurisdiction.^ It is clear that wherever the point has been 
 started, courts, in examining these judgments, have gene- 
 rally felt themseves restricted to inquiries respecting the 
 effect to which they w^ould be entitled in a collateral suit in 
 the State wdiere they were pronounced.^ In Massachusetts, it 
 has been directly determined that in an action on the judg- 
 ment upon another estate, the defendant cannot be allowed 
 to show that it was obtained by fraud and misrepresenta- 
 tion.* 
 
 Some discussion has arisen as to what kind of judgments 
 were included within the constitution and the law of con- 
 gress. In Massachusetts, it has been settled that they eni- 
 l)raced only civil judgments, and does not extend to judg- 
 ments in criminal proceedings. Hence, a conviction of an 
 individual in New York of an infamous offense was held, in 
 the former State, not to disqualify him from being a wit- 
 ness;^ but in North Carolina a difierent doctrine is maintained. 
 There it has been held that a judgment of conviction in a 
 neiffhborins State of an infamous crime is within the con- 
 
 ^ Beech v. Abbott, 6 Vt. 592; fore it. This court confines itself 
 
 Rogers v. Coleman, Hardin (Ky.), within that narrow limit of inquiry, 
 
 4J8_ incidental, from necessity, to all 
 
 "^ Borden v. Fitch, 15 Johns. (N. courts which are called on to en- 
 
 Y.) 121; Jackson v. Jackson, 1 id. force and carry into effect the judg- 
 
 424 ; Harding v. Alden, 9 Me. 140. ment of some other court. That 
 
 3 In Moren v. Killibrew, 2 Yerg. limit is an inquiry into the jurisdic- 
 
 (Tenn.), 379, Whyte, J., delivering tion of the court rendering the 
 
 the opinion in a case which involved judgment." 
 
 the extent to which such inquiry ' McRea v. Mattoon, 13 Pick, 
 
 might go, said :"I<lisclaim all power (Mass.) 53; Smith v. Lewis, 3 
 
 over that court or its proceedings, Johns. (N. Y.) 517. 
 
 whether it hath rendered a correct, ^Commonwealths. Green, 17 
 
 a regular or an erroneous judg- Mass. 515. 
 ment upon the subject-matter be-
 
 760 EVIDEXCE. [chap. XIX. 
 
 stitiition iind act of congress, and i-ondoi-s the person con- 
 victed incompetent.' 
 
 In New Hampshire, it is lu-ld that a judgment of a justice 
 of the peace of tuiother Slate cannot be autlienticated ac- 
 cording to the hiw of congress ; and it is, therefore, regarded 
 as standing upon the same footing with a foreign judgment, 
 leaving the whole merits open lor reinvestigation.^ 
 
 In Massachusetts, the conrts are not disposed to extend 
 the constitution and hiw of congress any further than the 
 decisions of tlie Federal court necessarily recpiire, and have 
 accordingly held with New IIani})shire in respect to the 
 judgments of justices of the peace. Their language on this 
 subject is as follows: "Certainly we think the judicial pro- 
 ceedings referred to in the constitution were supposed, by 
 the congress which passed the act providing the manner 
 of authenticating records, to have related to proceedings 
 of courts of general jurisdiction, and not those which are 
 merely of municipal authority; for it is required that the 
 copy of the record shall be certified l)y the clerk of the court, 
 and that there shall be also the certificate of the judge, chief 
 justice or the presiding magistrate, that the attestation is in 
 due form. This is founded ui)on the supposition that the 
 court, whose proceedings are to be thus authenticated, is so 
 constituted as to admit of such ofiicers ; and the act has 
 wisely left the records of magistrates who may be vested 
 with limited judicial authority, varying in its objects and 
 extent in every State, to be governed ])y the laws of the 
 State into which they may be introduced for the purpose of 
 l)eing carried into effect. Being left unprovided for by the 
 constitution or laws of the United States, they stand upon 
 no better footing than foreign judgments, being not more 
 thiin 2)rwia facie evidence of debt, and liable to be defeated 
 in their operation, under the plea of nil debet, as other foreign 
 judgments are.'' ^ In Connecticut, a justice's judgment ren- 
 dered in " those States where justices of the peace hold 
 
 ' State V. Candler, 3 Hawks (N. ' Warren v. Flagg, 2 Pick. (Mass. ) 
 
 C), 393. 448. Whether this is the law in 
 
 " Robinson v. Prescott, 4 N. H. Indiana, quere. See Cone V. Cot- 
 
 450 ; Mahurin v. Bickford, 6 id. 567. ton, 2 Blackf. (Ind.) 82.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 7G1 
 
 courts of record," has beou held within the act of consfress, 
 and not re-examinable when properly authenticated.^ In 
 Vermont the same doctrine prevailed formerly as in New 
 Hampshire and Massachusetts, viz., that the justices' judg- 
 ments of neighboring States generally, were not contem- 
 plated by the act of congress and the constitution, and con- 
 sequently were re-examinable upon the merits when sued 
 upon like foreign judgments.^ But more recently it has 
 been held otherwise in regard to the judgment of a justice, 
 "where the law requires him to keep records."^ In Ken- 
 tucky, it seems that a judgment of an Indiana justice of the 
 peace is within the constitution and the act of congress,^ 
 
 In Ohio, the doctrine is, that the mode of certifying the 
 judgments of justices of the peace has not been provided 
 for by the act of congress ; Ijut when duly proved in the 
 common-law mode they are within the provisions of the 
 constitution, entitled to " full faith and credit," and not sub- 
 ject to re-examination.^ So also, it seems, in New York.^ 
 A decree of the court of chancery has been held within 
 the constitution and act of congress.'^ 
 
 Sec. 249. Instances in which Foreign Judgment may be Avoided. 
 
 A foreign judgment may always be avoided ui)on any 
 ground upon which a domestic judgment could be avoided, 
 and where upon its face it does not appear to l)e tinal and 
 conclusive as an estoppel in the country in which it was 
 
 ^ Bissell V. Edwards, 5 Day ' Barbour v. Watts, 1 Marsh. 
 
 (Conn.), 363. (Ky.) 292, 293 ; Tarlton v. Briscoe, 
 
 " King V. Van Gilder, 1 D. Chip. 1 id. 67. So also, in Louisiana, 
 
 ,(Vt.) 59. Scott V. Blanchard, 8 Mart. (La.) 
 
 ' Starkweather v. Loomis, 2 Vt. 303. In Tennessee, Hunt v. Lyle, 8 
 
 573; Blodget t). Jordan, 6 id. 580. Yerg. (Tenn.) 142; 6 id. 412. In 
 
 * Scott V. Cleveland, 3 Mon. South Carolina, Miller v. Miller, 1 
 (Ky.) 87. Bailey (S. C), 242. In New York, a 
 
 ^ Silver Lake Bank v. Harding, regular decree of divorce, by the 
 
 5 Ham. (Ohio), 545 ; Kuhn v. Mil- superior court of Connecticut, has 
 
 ler, id. 127. been viewed as standing upon the 
 
 * Thomas v. Robinson, 3 "Wend, same footing. Bradshaw xi. Heath. 
 (N. Y.) 263; Sheldon v. Hopkins, 7 13 Wend. (N. Y.) 407. In Maine, 
 id. 435 ; Stockwell v. Coleman, 10 Harding v. Alden, 9 Me. 149. 
 Ohio St. 33.
 
 762 EVIDENCE. [CIIAP. XIX. 
 
 rendered it will not be ;in estoppel in a foreign jurisdiction.* 
 So a foreign judgment may be impeached upon an error of law 
 apparent upon its face, whether it was set up as a ground 
 of action, or in defense thereto.^ But the error of law must 
 be very c'lear.^ So too they may be avoided if founded 
 upon fraud, or rendered by a court which did not have 
 jurisdiction,* or if the defendant was not served with process 
 in the original action.'' Thus, where the sunnnons in the 
 case was served by nailing it up on the door of the court- 
 house, it was held that although this might have been a 
 legal service in the jurisdiction in which the judgment was 
 rendered, it was not sufficient to give validity to the judg- 
 ment outside that jurisdiction. A contrary doctrine would 
 not only be inconsistent with every principle of justice, but 
 would be exceedingly dangerous. In a case before cited, ^ it 
 was attempted to maintain the judgment by the local law of 
 the island of Tobago, where it was rendered, which, in terms, 
 authorized proceedings of a similar nature against persons 
 absent frain the island. Lord Ellenborough, who deliv- 
 ered the opinion,'' said : " Absent from the island must be 
 taken only to apply to persons who had been present there, 
 and were subject to the jurisdiction of the court out of which 
 the process issued ; and as nothing of that sort was in proof 
 here to show that the defendant Avas subject to the jurisdic- 
 tion at the time of commencing the suit, there is no founda- 
 tion for raising an assumpsit upon the judgment so obtained." 
 The proposition that a judgment pronounced without juris- 
 diction is void, and can be no evidence whatever, is univer- 
 
 ' Plummer v. Woodbume, 4 B. & 67 ; Mees v. Thulluson, 20 Eng-. L. 
 
 C. 636 ; Smith v. NichoUs, 5 New & Eq. 465 ; Frankland v. MacGusty, 
 
 Cases, 222 ; Obiohui v. Bligh, 8 1 Knapp, 274 ; Ferguson v. Mahon, 
 
 Bing. 351. 11 Ad. & EL, 179 ; Houlditch v. 
 
 " Mouelli V. Rossi, 2 B. & Ad. Donegal, 8 Bligh, 338 ; and the 
 
 757 ; Buchanan v. Rucker, 1 Camp, defendant may show that he was 
 
 67. not served, Redus v. Burnett, 59 
 
 ^ Alivan v. Puraival, 1 C. M. & Tex. 376 ; Lampton's Succession, 
 
 R. 293; Amot v. Redfem, 2 C. & 35 La An. 418; Mitchell ?;. Fen-iss, 
 
 P. 88 ; Becquet v. McCarthy, 2 B. & 5 Del. 34. 
 Ad. 957. ^ Buchanan v. Rucker, ante. 
 
 * Price V. Deerhurst, 8 Sim. 279. ■" 9 East, 192. 
 
 * Buchanan v. Rucker, 1 Camp.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 763 
 
 sally acknowledged, not only in respect to foreign judgments, 
 but to judgments as among the neighboring States, as well as 
 to domestic judgments. And it makes no difference whether 
 the judgment is sought to be enforced directly by action, or 
 whether it comes incidentally in question. The application 
 of this doctrine to foreign judgments, and to judgments in 
 the several States Avill be found recognized in nearly all the 
 cases. So far as the general principle is concerned, there is 
 no difficulty : but the point of embarrassment usually lies in 
 determining whether the court had jurisdiction in fact, and 
 in ascertaining how far that jurisdiction extended in the par- 
 ticular instance. This will lead to the inquiry, among others, 
 was the court ^roj)erlj constituted? Such inquiry is always 
 allowable when a foreign judgment, or the judgment of a 
 neighboring State comes in question ; ^ but to what length is 
 not very clearly defined. In a Pennsylvania^ case an objection 
 was raised as to the jurisdiction of a court, acting at St. 
 Domingo, which was said not to have been derived from the 
 proper authority ; and it was held sufficient that the court 
 was one de facto, deriving its authority from those in whom 
 the power of the country was for the time being vested ; and, 
 therefore, it was held to have the j urisdiction of a legitimate 
 court.^ If the origin of the foreign court does not appear, 
 it seems that it will be presumed legitimate ; but Avhere 
 the source of its authority is stated, the tribunal before 
 which its judgment is produced will examine it ; and if it be 
 contrary to the usual mode of constituting courts, it shifts 
 the onus prohandi upon the party who would sustain the 
 judgment, and it will then be for him to establish that the 
 foreign court was properly organized.* Another important 
 inquiry is, has the foreign court, or the court of the neighbor- 
 ing State, as the case may be, complied with the local law, so 
 as to have enabled it to acquire jurisdiction over what it has 
 
 * Rose v. Himely, 4 Ci-anch (U. S.), ^ Bank of Nortli America v. Mc- 
 
 241 ; Cherriot v. Foussat, 3 Binn. Call, 4 Binn. (Penn.) 371. 
 
 (Penn.) 220; Moren v. Killibrew, 2 = Ingram r. Cocke, 1 Overt. (Tenn.) 
 
 Yerg. (Tenn.) 376, 379, 380; The 22. See per Best, C. J., Yrisarri 7j. 
 
 Nueva Anna and Liebre, 6 Wheat. Clement, 2 C. & P. 223. 
 
 (U. S.) 193. * Snell v. Faussatt, 1 Wash. (U. 
 
 l\. C. C.) 271.
 
 704 EVIDENCE. [cilAr. XIX. 
 
 assumed to decide? That this iinjuiry is admissible, results 
 necessarily tVoiii the legal truism, that a jiulgment void where 
 it is rendered is void everywhere. It has indeed been said, 
 in a general way, in reterenee to admiralty proceedings, that 
 a foreign court, so far as its jurisdiction depends upon nmnici- 
 pal rules, nuist judge whether it has jurisdiction or not, and 
 that such decision must be respected.^ But if, by our obliga- 
 tion to respect decisions of this character, it is intended to 
 attirm that we are to regard them as conclusive, the doctrine 
 carried out and applied to foreign courts deriving their juris- 
 diction under local regulations, which obviously lead to an 
 iil>surdity not to l)c countenanced ; for every court either 
 expressly or by implication passes upon the question of its 
 own jurisdiction whenever it renders judgment; and to say 
 that because it has so passed upon it, there shall be no fur- 
 ther examination into the point, w^ould be paying to foreign 
 judgments a more deferential regard than is allowed even to 
 domestic judgments.^ The court held a Missouri judgment, 
 rendered upon attachment, void, because, among other things, 
 the return of the officer to the attachment did not comply 
 with the local statute.^ A foreign judgment is conclusive, so 
 far as to preclude a retrial upon the merits.* But the defend- 
 ant may show that the foreign court had not jurisdiction of 
 the subject-matter of the suit, or that the defendant was 
 not served with process, or that the judgment was fraudu- 
 lently ol)tained.^ It may also be shown that the judgment 
 was afterward reversed or vacated ])y the court rendering 
 it, even where that was done after issue joined upon it in this 
 State.® A question not unfrequently arises under this 
 
 ^ Rose V. Himely, 4 Cranch (U. 157 ; Fisher v. Hamden, 1 Paine 
 
 S.), 276; Cherriot v. Foussat, 3 (U. S.), 155. 
 
 Binn. (Penn.) 255. * Lozier v. "Westcott, 26 N. Y. 146. 
 
 ' Earthman v. Jones, 4 Yerg. ^ Henderson v. Henderson, 6 C. 
 
 (Tenn.) 484. B. 288 ; Ferguson w. Mahen, 11 Ad. 
 
 * Earthman v. Jones, 4 Yerg. & El. 179. 
 
 (Tenn.) 484. See also Cone v. Cotton, « Kinsey v. Ford, 38 Barb. (N. 
 
 2 Blackf. (Ind.) 82 ; Buchanan v. Y.) 195. In Jarvis v. Sewell, 40 
 
 Rucker, 9 East, 192 ; Moren v. Killi- Barb. (N. Y.) 449, the mode of prov- 
 
 brew, 2 Yerg. (Tenn.) 376 ; Elliot ing a judgment or decree of the 
 
 11. Piersol, 1 Pet. (U. S.) 340, 341 ; privy council in England, which is 
 
 Thompson v. Tolmie, 2 Pet. (U. S.) not a court of record, and has neither
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 765 
 
 branch of the inquiry : What is the presumption where a 
 foreign judgment, or the judgment of a neighboring State, 
 is introduced, respecting its jurisdiction, as depending upon 
 its compliance or non-comphance with the local law ? In 
 an English case/ a suit was instituted in England to recover 
 damages awarded by the vice-admiralty of the island of 
 Malta ; and it was held that the decree, in order to be evi- 
 dence of indebtedness, must show expressly, and not by mere 
 inference, that the defendant was brought within the juris- 
 diction of the vice-admiralty court, and that the court 
 where the suit was pending would not presume it." So also, 
 in a New Hampshire case,^ where debt was brought, in New 
 Hampshire, upon a judgment of the common pleas of Rhode 
 Island, it was held, that inasmuch as it did not appear by 
 the record that the defendant had personal notice of the suit, 
 or appeared to the action in the court where the judgment 
 was pronounced, the judgment must be regarded as obtained 
 without jurisdiction ; for these facts would not be presumed. 
 In a New York case,^ the plaintiff, Mary Bradshaw, brought 
 ejectment, in New York, for dower, and in answer to proof 
 on the part of the defendant, that the plaintifi' jDrevious to 
 the marriage in virtue of which she claimed dower, was a 
 married woman, and that her first husband was still alive — 
 the plaintiff produced a record of the supei-ior court of 
 Connecticut, containing a sentence of divorce, on her peti- 
 tion, from her first husband. The petition, as stated in the 
 record, alleged that the first husband had deserted the peti- 
 tioner, and had ever since been to parts unknown. No 
 appearance on the part of the husband w^as shown by the 
 record, nor did it state that he was served with process, or 
 had notice of the proceeding ; but, on the contrary, the 
 adjudication was alleged to have been made on hearing "the 
 plea and evidence produced by the plaintiff." The defend- 
 ant proved that the first husband, at the time of the presen- 
 
 clerk nor seal, is considered and ^ Thurber v. Blackburn, 1 N. H. 
 
 passed upon, in an action upon a 242. 
 
 bond for costs given on appeal from ' Bradshaw V. Heath, 13 Wend, 
 
 a Canada judgment. (N. Y.) 407. 
 ' Umbragio v. Bligh, 8 Bing. 335.
 
 766 EVIDENCE. [chap. XIX. 
 
 tatioii of tlio petition, iiiitl of the granting of the divorce, 
 Avus an inhabitant of the State of Xew York ; and the court 
 held, that although the record of a court of competent juris- 
 diction of another State, granting a divorce, is conclusive, 
 and entitled to full faith and credit, yet it is so, only as to 
 matters clearly and distinctly stated in it, and not as to those 
 which are merely infcral)le by argument from the judgment ; 
 that in the particular case, the record of divorce was no evi- 
 dence of the j urisdiction of the court over the person of the 
 defendant in those proceedings, because uo fact was stated 
 giving jurisdiction ; and if jurisdiction was inferable at all, 
 it was only so by argument from the judgment ; and conse- 
 quently that the presumption, under the circumstances, was 
 against the validity of the decree.^ lu a Kentucky case,^ the 
 rule on this subject with regard to the ordinary judgments of 
 neighboring States, is laid down as follows: "That when 
 the judgment or decree of a sister State is produced, ren- 
 dered by one of its tribunals, we must presume that tribunal 
 had jurisdiction and authority," and the o/iK-sof impeaching it 
 is thus thrown on him against whom it is urged. The pre- 
 sumption as to jurisdiction may be overcome by proof of 
 extrinsic matters which show that the court did not in fact 
 have jurisdiction.^ A distinction is taken between judg- 
 ments of courts of limited and sjiecial jurisdiction, and those 
 of general jurisdiction. But what is a court of limited and 
 special jurisdiction, as contradistinguished from a court of 
 general jurisdiction, and in what way is the tribunal before 
 which a judgment of a foreign court is produced to deter- 
 mine whether such court belongs to the one or the other of 
 these classes ? These and other i)oints suggest themselves, 
 when the mind is brought to bear u})on the subject, and 
 without attempting any thing like a solution of them, we 
 shall content ourselves with using the terms mentioned as 
 they are used in the books. In respect to courts of gen- 
 eral jurisdiction, then the rule is, that they are presumed to 
 
 * Harding v. Alden, 9 Me. 140; " Scott v. Coleman, 5 Litt. (Ky.) 
 
 Harrison v. Harrison, 19 Ala. 499 ; 350. 
 
 Hull V. Hull, 2 Strobh. Eq. (S. C.) ' O'Rourke v. Chicago, &c., R. R. 
 
 174. Co., 55 Iowa, 332.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 767 
 
 have had jurisdiction until the contrary clearly appears.^ 
 This rule has been applied, in New York, to the judgments 
 of courts of common pleas and county courts of neighborino- 
 States. Thus, in an early case,^ debt was brought on a com- 
 mon plea judgment of Massachusetts ; the defendant plead 
 that at the time of the commencement of the suit in which 
 the judgment was obtained, and ever since, he had been, and 
 still was, a resident in Schenectady, in the State of New 
 York. To this there was a general demurrer, which tlie 
 court sustained, on the ground that the defendant had not 
 expressly negatived the idea that he appeared to the suit, 
 and thus conferred jurisdiction. " Every presumption," says 
 Sutherland, J., "is in favor of the jurisdiction of the court. 
 The record is prima facie evidence of it ; and will be held 
 conclusive, until clearly and explicitly disproved."^ 
 
 But in respect to courts of limited and special jurisdiction^ 
 the rule is different ; nothing is presumed in their favor so 
 far as it respects jurisdiction ; and the party seeking to avail 
 himself of their judgments, must show affirmatively that the}" 
 had jurisdiction.* Accordingly, in New York, where an 
 action was brought on a justice's judgment of a neighboring 
 State, it was held that it could not be sustained until the 
 statute creating and organizing the court was produced and 
 proved, that it might be seen whether the justice had juris- 
 diction or not ; for the courts of one State will not take 
 judicial notice of the statutes of another.^ 
 
 Now, by statute of New York, a transcript from the 
 docket of ^ justice of an adjoining State is made presump- 
 
 * See Mills v. Martin, 19 Johns, has been acted on in Connecticut. 
 
 (N. Y.) 33; Thomas v. Robinson, 3 Smith v. Rhoades, 1 Day (Conn.), 
 
 Wend. (N. Y.) 267 ; 12 N. Y. 156. 168. See also Pringh v. Woolworth, 
 
 ' Shumway v. Stillman, 4 Cow. 90 N. Y. 502. 
 
 <N. Y.) 292. ■• Mills vi. Martin, 19 Johns. (N. 
 
 ' Harrod v. Barretto, 1 Hall (N. Y.) 33 ; Peacock v. Bell, 1 Saund. 
 
 Y.), 155. In Wheeler v. Raymond, 73; Kempe v. Kennedy, 5 Cranch 
 
 8 Cow. (N. Y.) 311, the court seem (U. S.), 173 ; 1 Pet. (U. S. C. C.) 
 
 to have held similarly in respect to 30 ; Wheeler v. Raymond, 8 Cow. 
 
 proceedings of a county court of (N. Y.) 311. 
 
 Vermont, commenced under a stat- ' Thomas v. Robinson, 3 Wend, 
 
 ute of that state relating to foreign (N. Y.) 267 ; Sheldon v. Hopkins, 7 
 
 attachments. The same doctrine id. 435.
 
 768 EVIDENCE. [chap. XIX. 
 
 tivo evidence of the facts stated in such transcript, when 
 authenticated in the mode prescribed in the act. The tran- 
 script, however, is liable to be controverted by evidence in 
 all its parts relative to the validity of the judgment. lu 
 Indiana, it appeared that a scire facicii^ had been issued by a 
 justice of the peace of Ohio, and on a return of the writ " not 
 found." judgment passed for the plaintiff, upon which action 
 was biought in the former State ; and it was held, that the 
 judgment having l)een rendered without service of the writ 
 or the return of two nihils, would not, on common law prin- 
 ciples support the action ; and that if the judgment was 
 authorized by a statute of Ohio on the return of " not found," 
 such statute must be shown by the party setting up the judg- 
 ment.^ And in regard to this class of jurisdictions it is ob- 
 servable generally, that where a statute prescribes a waw 
 proceeding, either unknown to the common law or contrary 
 thereto, the statute, so far, at least, as those parts of it essen- 
 tial to jurisdiction are concerned, must be not only proved, but 
 shown to have been strictly pursued, or the proceeding will 
 be held a nullity.^ The same has been said with regard to 
 summary proceedings and extraordinary powers, exercised 
 by any court under a special statute.^ 
 
 A still further inquiry may arise, when a foreign judg- 
 ment, or the judgment of a neighboring State, is produced, 
 viz. : What measure of jurisdiction could the sovereign power 
 of tlie place where the judgraent was rendered, confer upon its 
 courts? Considered in an international point of view, juris- 
 diction, to be rightfully obtained, must be founfled either 
 upon the person of the defendant being within the territory 
 of the sovereign where the court sits, or his property being 
 within such territory ; for otherwise, there can be no sover- 
 eignty exerted, upon the known maxim, extra territorium jus 
 dicenti impunenon paretur} Even, therefore, should the leg- 
 
 * Cone V. Cotton, 2 Blackf. (Ind.) Keith, 2 East, 221 ; Walker v. Max- 
 
 S2. well, 1 Mass. 103. 
 
 "^ Earthman v. Jones, 2 Yerg. ■• Story's Confl. of Laws, 450 ; 3 
 
 (Tenn.) 493. Dig. Lib. 2, tit. 1, ch. 20 ; 1 Boul- 
 
 ^ Thatcher v. Powell, 5 Wheat, lenois' Pr. Gen. 1, 2, pp. 2, 3 ; Vat- 
 
 (U. S.) 119 ; Holmes v. Broughton, tel, b. 2, ch. 8, § 84. 
 10 Wend. (N. Y.) 75; Collet v.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 769^ 
 
 istature of a nation or of a neighboring State express!}^ grant- 
 jurisdiction to its courts over persons or property not within 
 its territory, sucli grant would be treated elsewhere as a mere 
 attempt at usurpation, and all judicial proceedings in virtue 
 of it, held utterly void for every purpose.^ 
 
 A person, however, though a citizen of another State or 
 country, when he comes within the territory of a particular 
 sovereignty, contracts a sort of temporary allegiance to it, and 
 may justly be subjected to its process, and bound personally 
 by the judgment of its courts. And whether jurisdiction: 
 is founded upon the person being within the territory, or the 
 j)roj)erti) being there, the judgment will be deemed valid, so 
 far as that jurisdiction could legitimately extend ; l)ut no 
 farther. Thus, a very common course, in many of the 
 United States, and in many other countries, is to proceed 
 against non-residents by an arrest or attachment of their 
 property within the territory. Judgment obtained upon 
 process of this kind will generally l)ind the property so 
 arrested or attached ; for to that extent the court has or can 
 have jurisdiction. But such judgment will not be regarded 
 bv nei<iiiborinff States or other nations as evidence of indebt- 
 edness or as operative in any measure in personam ; and for 
 this very obvious reason, viz., that except so far as the prop- 
 erty attached is concerned, there is and can be no jurisdic- 
 tion, no i)Ower of adjudication.^ 
 
 1 See Buchanan v. Rucker, ante ; the local law, and sought to be used 
 also, Picquet v. Swan, 5 Mas. (U. in another, quere. Se.^ Harding v. 
 S.) 3?> ; Story's Confi. of Laws. 450, Alden, 9 Me. 140 ; 13radbhaw v. 
 4.^1 ;Kilburn^;.Woodworth, 5 Johns. Heath. 13 Wend. (N. Y.) 407. Iix 
 (N. Y.) 37; Robinson v. Ward, Harding v. Alden, a7ite, the su- 
 8 id. 86 ; Boi-den v. Fitch, lo id. 121 ; preme court of Maine seemed f* 
 Hall P. Williams, 6 Pick. (Mass.) think that it did not, so far as the 
 232 ; Flower v. Parker, 3 Mas. (U. mere question of conjugal rights 
 S.) 2f)l; Bartlettu Knight, 1 Mass. was concerned, they being the 
 401 ; Miller v. Miller, 1 Bailey (S. subject of a suit in the nature of a. 
 C), 242 ; Earthman v. Jones, 2 Yerg. proceeding in rem ; but otherwise,. 
 (Tenn.) 484; Moren v. Killibrew, if the decree was sought to be en- 
 id. 37(3 ; Rogers v. Coleman, Har- forced as to alimony, 
 din (Ky.), 413; St. Albans v. Bush. " Picquet v. Swan, ante; Story's. 
 4 Vt. 58. Whether the doctrine ap- Confl. of Laws, 461 ; Kilburn v. 
 plies to decrees of divorce obtained Woodworth, 5 Johns. (N. Y.) 37 ;: 
 in one State strictly according to Pawling v. Bird, 13 id. 192 ; Sar- 
 
 49
 
 770 EVIDENCE. [chap. XIX. 
 
 "Where the summons is served upon a non-resident by 
 publication, if tlie deJendunt has property in the State, tlie 
 judgment is limited in its effect to such property in the State, 
 where the judgment is obtained.^ Without service of pro- 
 cess the judgment is of no validity out of the State.^ 
 
 So as to judgments or decrees in other cases, obtained 
 against persons resident abroad without notice to them, and 
 an opportunity allbrded of defending.' And in order that 
 the judgment under these circumstances may be rendered 
 binding upon the defendant in jjersonam, the notice must be 
 personally sewed upon him. This will be found sustained 
 by all the cases ; and where notice was given by publication 
 in the newspapers, as is frequently done in certain chancery 
 proceedings in several of the States, to bring in some of the 
 parties who were al)sent, it was held, that a decree, pursuant 
 to notice of that character, as against such absent defend- 
 ants, was no evidence of indebtness.'* The notice must, 
 moreover, be served upon the defendant while he is within 
 the jurisdiction of the sovereignty under which the court 
 acts ; for no sovereign has a just right to issue such notice to 
 
 geant on Attachments, 112, 113, 114, 5 Paige (N. Y.), 299, 30.5; Arm- 
 
 et seq. ; M'Clenachan v. M'Carty, 1 strong v. Harshaw, 1 Dev. (N. C.) 
 
 Dall. (Penn.) 375; Phelps v. Hoi- 188. 
 
 ker, id. 264 ; Robinson v. Ward, 8 ' Force v. Gower, 23 How. Pr. 
 
 Johns. (N. Y.) 86 ; Borden v. Fitch, (N. Y.) 294. 
 
 15 id. 121 ; Hall v. Williams, 6 Pick. "" Oakley v. Aspinwall, 4 N. Y. 
 
 (Mass.) 232 ; Betts v. Death, Addin. 521. 
 
 (Penn.) 265 ; Fenton v. Garlick, 8 ^ Bellows v. Ingham, 2 Vt. 576, 
 
 Johns. (N. Y.) 194, 197; Flower «. 577 ; Woodward ?> Tremere, 6 Pick. 
 
 Parker, 3 Mas. (U. S.) 251 ; Wilson (Mass.) 354 ; Newell, v. Newton, 10 
 
 V. Graham, 4 Wash. (U. S. C. C.)'53, id. 472 ; Bartlett v. Knight, 1 Mass. 
 
 57 ; Bissell v. Briggs, 9 Mass. 462 ; 401 ; Cone v. Cotton, 2 Blackf. (Ind.) 
 
 Kihbe -y. Kibbe, Kirby (Conn.), 119 ; 82 ; Moren r.' Killibrew, 2 Yerg. 
 
 Dennison v. Hyde, 6 Conn. 508 ; (Tenn.) 376 ; Thurber v. Black- 
 
 Aldrich V. Kinney, 4 id. 380, 387 ; bourne, 1 N. H. 242 ; Bradshaw v. 
 
 Earthman v Jones, 2 Yerg. (Tenn.) Heath, 13 Wend. (N. Y.) 407 ; Hart 
 
 484 ; Hoxie v. Wright, 2 Vt. 263 ; v. Lodwick, 8 La. 164 ; Spencer v. 
 
 Rogers v. Coleman, Hardin (Ky.), Sloo, id. 290. 
 
 413; Newton v. Newell, 10 Pick. * Miller -o. Miller, 1 Bailey (S. C), 
 
 (Mass.) 470; Starbuck-y. Murray, 5 242. See Moren v. Killibrew, 2 
 
 Wend. (N. Y.) 148; Holbrook v. Yerg. (Tenn.) 376 ; Cone tJ. Cotton, 
 
 Murray, id. 161 ; Bradshaw v. 2 Blackf. (Ind.) 82. 
 
 Heath, id. 407 ; Bates v. Delavan,
 
 SEC. 249.] 
 
 DOCUMENTARY EVIDENCE. 
 
 771 
 
 the citizen of another State or countiy, and thereby draw the 
 party from his own proper forum ad alium examen} But if 
 the party, in any of these instances, chooses to appear and 
 contest the merits, thereby Avaiviug his personal immunity, 
 and submitting to the jurisdiction of the court, the judo-ment 
 would then doubtless bind him personally, and be entitled to 
 the same measure of respect with the judgment of a neio-h- 
 boring State or a foreign country,, as the case may be, ob- 
 tained in the ordinary mode.^ However, it has been held 
 otherwise in cases of foreign attachments, where the defend- 
 ant has merely appeared to protect his property.^ 
 
 ' Picquet v. Swan, supra; Dunn 
 -v. Dunn, 4 Paige, 425 ; Fen- 
 ton V. Garlick, 8 Johns. 194, 197 ; 
 Flower v. Parker, 3 Mas. (U. S.) 
 251 ; Wilson v. Graham, 4 Wash. 
 (U. S. C. C.) 53 ; Woodward y. Tre- 
 mere, 6 Pick. (Mass.) 354 ; Harrod 
 V. Barretto, 1 Hall (N. Y.), 155; 
 Kilbum V. Woodworth, 5 Johns. (N. 
 Y.) 161; Arnold v. Toutelott, 13 
 Pick. (Mass.) 172 ; Adam v. Rowe, 
 11 Me. 98. 
 
 ' Picquet v. Swan, 5 Mas. (U. S.) 
 43 ; Flower v. Parker, 3 id. 251 ; 
 Hall V. Williams, 6 Pick. (Mass.) 
 237 ; Shumway v. Stillman, 6 Wend. 
 (N. Y.) 447 ; Starbuck v. Muri-Ay, 
 5 id. 148 ; Hoxie v. Wright, 2 Vt. 
 262 ; Bellows v. Ingham, id. 575 ; 
 Mayhew v. Thatcher, 6 Wheat, (U. 
 S.) 129 ; Wheeler v. Raymond. 8 
 Cow. (N. Y.)311 ; Price v. Higgins, 
 1 Litt. (Ky.) 276 ; Moore v. Spack- 
 man, 12 S. & R. (Penn.) 287. 
 
 ' Bissel V. Briggs, 9 Mass. 469 ; 
 Pawling V. Bird, 13 Johns. (N. Y.) 
 207. But in Starbuck v. Murray, 5 
 Wend. (N.Y.) 159, Marcy, J. ; deliv- 
 ering the opinion, after referring to 
 the above case of Bissell v. Briggs, 
 lays down the law as follows : "The 
 court would not, in such a case, I 
 concede, have jurisdiction over the 
 defendant's person for any other 
 
 but the direct objects of the pro- 
 ceedings ; and so far as those were 
 concerned, he would l)e subjected to 
 the authority of the court. If a citizen 
 of one State should go into another 
 to claim property seized on attach- 
 ment, and subject the attaching cre- 
 ditors to costs and expenses, which 
 in the due course of the proceed- 
 ings, should be adjudged to them 
 by a court of competent authority, 
 will it be pretended that he could 
 resist the payment of these costs on 
 the ground that he was not subject 
 to the jurisdiction of the court ? 
 For all the fair and direct objects 
 of the suit, he was within its juris- 
 diction. So if the iiroceedings were 
 not in rem, but the property of the 
 defendant was attached to compel 
 him to appear and answer to pro- 
 ceedings 171 personam, and he did in 
 fact appear and litigate the cause 
 with the plaintiff, he could not be 
 heard to question the jurisdiction of 
 the court over his person. I do not 
 think Chief Justice Parsons intend- 
 ed to say more than this, that when 
 a court had the jurisdiction of a de- 
 fendant for one purpose, it could 
 not legally bind him by a judgment 
 or sentence in a distinct and different 
 manner." See Moore -«. Spackman, 
 12 S. & R. (Penn.) 287.
 
 772 
 
 EVIDENCE. 
 
 [ciIAr. XIX. 
 
 It" the party, by an act of lawless violence on the part of 
 a few citizens of a particnlar State, is seized and brought 
 within its jurisdiction from another State, it has been held 
 that he may, nevertheless, be subjected to the jurisdiction 
 of the courts of the State into which he is so brought.^ 
 
 Whore the record of a foreign judgment states that the 
 defendant a[)[)cari'd by attorney, this will ho prima facte evi- 
 dence of the fact, and the attornc}- will be presumed to liavc 
 been regularly constituted.^ 
 
 Ill an English case, the validity of judgments rendered 
 again-it persons, who were non-residents, and had no actual 
 notice of the suit, and did not a[)i)ear and answer tlu; same, 
 came before the court of conunon pleas of England, upon 
 a Scottish judgment rendered against a Scottisii absentee, 
 ui)on due attachment of his heritable property in Scotland, 
 and due i)r()clamari()n by what is there technically called 
 honuiu/, and a judgment by default for non-appearance. An 
 action of debt was In-ought on the judgment, and the (jues- 
 tioii was, whether it was void or not. It was held, that it 
 was vtilid. This was partly the result of the articles of 
 union between Scotland and England, and partly of the 
 
 • state V. Smith, 1 Bailey (S. C), 
 2S3 ; Id. 290, note a. 
 
 * Malony v. Gibbons, 2 Camp. 
 502. See Robinson v. Eaton, 1 T. 
 R 62; Tipton v. Mayfield, 10 La. 
 189. So, with resjiect to judgments 
 as among- the neighboring States. 
 Field V. Gibbs, 1 Pet. (U.S.C.C ) 155; 
 Hall V. Williams, ti Pick. (Mass.) 232; 
 Aldrieh v. Kirmey, 4 Conn. 380 ; 
 Starbuc.k v. Murray, 5 Wend. (N. 
 Y ) 148 ; Hoxiew Wright, 2 Vt. 263 ; 
 Shumway v. Stillman, 6 Wend. (N. 
 Y.) 447. But as we have already 
 seen, some diversity of opinion 
 exists, whether this statement of 
 apiiearance in the record of a neigh- 
 boring State may be contradicted. 
 In Field V. Gibbs, 1 Pet. (U. S. C. C.) 
 155, it was held it could not, on the 
 general principle forbidding the im- 
 peachment of records. So also, in 
 
 Vermont, Hoxie ik Wright, 2 Vt. 
 263, 268 ; and in Massachusetts, to 
 a qualified extent only, however. 
 Hj^U V. Williams, 6 Pick. (Mass.) 
 232. But in New York and Con- 
 necticut, the direct contrary has 
 been held ; and in the former State 
 the broad ground is taken that every 
 fact stated in the i-ecord upon which 
 jurisdiction depends, may be contro- 
 verted. Starbuck?).Muri"ay, 5 Wend. 
 148 ; Aldrich v. Kinney, 4 Conn. 380; 
 Barber v. Winslow, .12 Wend. (N. 
 Y ) 102 ; Shumway v. Stillman, 6 id. 
 447 ; Bradshaw v. Heath, 13 Wend. 
 (N. Y.) 407, 418. If the defendant 
 ajipears and plaads, though his ap- 
 pearance be entered informally on 
 the record, the judgment %vill bind 
 him. Bank of Middleto-mi v. Hunt- 
 ington, 13 Abb. Pr. (N. Y.) 402.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 773 
 
 recognition of such practice, as valid, by a British act of 
 parUament ; and partly also of the fact that the judgment 
 was against a Scottish subject. Best, J., who delivered the 
 opinion of the court, said : '-A natural born subject of any 
 country, quitting that country, but leaving property under 
 the protection of its laws, even during his absence, owes 
 obedience to those laws, particularly when those laws enforce 
 a moral ol)ligation. The deceased, before he left his native 
 country, acknowledged under his hand, that he owed the 
 debts ; he was under a moral obligation to discharge those 
 debts as soon as he could." After adverting to the case of 
 Buchanan v. Rucker, and some others, he added : ''To be 
 sure, if attachments, issued against persons who were never 
 within the jurisdiction of the court issuing them, could be 
 supported and couHrmed in the country in which the person 
 attached resided, the legislature of any country might au- 
 thorize their courts to decide on the right of parties who 
 owed no allegiance to the government of such country, and 
 were under no obligation to attend its courts, or obey its 
 laws. We confine our judgment to a case whei*e the party 
 owed allegiance to the country in which the judgment was 
 so given against him, from being ])orn in it, and by the laws 
 of which country his property was, at the time those judg- 
 ments were given, protected. The del)ts were contracted in 
 the country in which the judgments were given, whilst tbe 
 debtor resided in it." ^ 
 
 Thus far, to avoid mmecessary prolixity, we have treated 
 of foreign judgments and judgments as among the neighbor- 
 ing States of the Union, without discriminating veiy par- 
 ticularly, except in a few instances, between the two classes; 
 for, in regard to the matters relating to jurisdiction which we 
 have noticed, there is seldom a discernible shade of diifereuce 
 between them. The latter class, however, owing to the 
 provisions of the act of congress and the constitution, before 
 referred to, may, perhaps, with respect to some other par- 
 ticulars under this head, claim a distinct and separate con- 
 sideration. 
 
 ' Douglass V. Forrest, 4 Bing. 686. L. ti Eq. 465 ; Gould v Webb, 82 
 See also Meeus ■«. Thelluson, 20 Eng. Eng. C. L. 932 ; 76 id. 787.
 
 771 EVIDExNCE. [cHAr. XIX. 
 
 Where the legislature of a State has undertaken to confer 
 upon its courts the power of exercising jurisdiction over the 
 persons of the citizens of other States, who have in no sense 
 subjected themselves to its authority, nor been within its ter- 
 ritory, we have seen that all judgments rendered in pursu- 
 ance of such regulations will be held utterly void. The 
 legislature, the principal, having no jurisdiction, can confer 
 none u})on its agents, the courts.^ But, in respect to its own 
 resident citizens, it is undoubtedly competent for the legis- 
 lature to prescribe such mode of judicial i)roceeding as it 
 may deem i)roper ; to direct the manner of serving process, 
 the notice which shall be given to defendants, and to de- 
 clare the eil'ect of a judgment rendered in i)ursuance of such 
 notice.'^ Should a State, then, adopt absurd or unjust pro- 
 visions in this respect, and give full jurisdiction to its courts 
 over resident citizens without requiring any thing more than 
 a constructive notice to them ; should it allow, for instiuice, 
 the rendition of a judgment, after service of process upon 
 the property of the defendant, or by publication of notice 
 in the newspapers, or by affixing the same against the door 
 of a c()in-t-h()usc or church, and declare such judgment final 
 and conclusive, what would be its eflect in a neighboring 
 State ? If it were a st\\ct\y Joreign judgment, it might, per- 
 haps, be treated as a nullity, provided there was clearly no 
 appearance, and no opportunity of defending ; but such is 
 not the case. It is now settled, by as strong and unbroken 
 a current of authority as can be brought to bear in favor of 
 any position, that the several States in this respect are not 
 foreign to each other ; that the effect to which the " acts, 
 records and judicial proceedings'' of one State are entitled 
 in the courts of a neighboring State, does not depend upon 
 volition or comity as among the respective members of the 
 Union, but is defined and peremptorily enforced by the 
 paramount sovereignty of the Federal government. Many 
 of the decisions seem at a first glanc^e to maintain the doc- 
 trine that judgments obtained without personal notice to the 
 
 ' Per Catron, J., Earthman v. bott, 6 Vt. 591. See also, Douglas 
 Jones, 2 Yerg-. (Tenn.)484. v. Forrest, 4 Bing. 686, per Best, 
 
 " Per Williams, J., Beech v. Ab- C. J.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 775 
 
 defendant, and without any opportunity afforded him of 
 contesting the plaintifl*'s chiim, would not come within the 
 general rule, but constitute an exception to the provisions of 
 the constitution and the act of congress.^ But on examina- 
 tion it will be seen that these authorities all relate to cases 
 where the person against whom the judgment was pronounced 
 was a resident citizen of another State when the suit was 
 commenced, and had contracted no allegiance to the sove- 
 reignty where the court sat, nor given it any power over 
 him. They proceeded upon the total absence of jurisdiction 
 in the court not only, but the sovereignty under which 
 the court acted and the absolute imposibility of acquiring 
 jurisdiction without the party's consent in such cases. The 
 question, therefore, as to judgments rendered in accordance 
 with the local law by a State court against its resident citi- 
 zens, over whom it has exclusive sovereignty, did not arise 
 and was not discussed.^ In a New Hampshire case. Bell, 
 J., delivering the opinion of the court, lays down a position 
 which, if correct, would indiscriminately exempt all judg- 
 ments of other States from the operation of the act of con- 
 gress and the constitution, provided they were obtained 
 without personal notice to the defendant and an opportunity 
 afforded him of defending. "The words records and judicial 
 proceedings,^^ he says, " are words of definite meaning at 
 common law, and by settled legal rules in the construction 
 of statutes they are to have the same meaning attached to 
 them when used in this statute. The common law never 
 recognized judicial proceedings as foreign judgments, unless 
 rendered by a court of record upon personal notice given to 
 the defendant, or his appearance to the action. Without 
 
 * Aldrich v. Kinney, 4 Conn. 380 ; drews v. Montgomery, 19 Johns. (N 
 
 Kibbe V. Kibbe, Kirby (Conn.), 119 ; Y.) 162 ; Bartlett v. Knight, 1 Mass 
 
 Robinson ?). Ward, 8 Johns. (N. Y.) 401; Jacobs v. Hull, 12 id. 25 
 
 86 ; Fenton v. Garlick, id. 194 ; Bissell v. Briggs, 9 id. 462 ; Hall u 
 
 Kilburn v. Woodworth, 5 id. 37 ; Williams, 6 Pick. (Mass.) 232 
 
 Borden v. Fitch, 15 id. 121 ; Pawl- Woodward v. Tremere, id. 354 
 
 ing ?). Bird, 13 id. 192 ; Starbuck v. Dennison v. Hyde, 6 Conn. 508 
 
 Murray, 5 Wend. (N. Y.) 148; Hoi- Rogers v. Coleman, Hardin (Ky.), 
 
 brook V. Mun*ay, id. 161 ; Shumway 413. 
 
 V. Stillman, 6 id. 447 ; Wheeler v. * Thurber v. Blackboume, 1 N. 
 
 Raymond, 8 Cow. (N. Y.) 311 ; An- H. 242.
 
 770 EVIDENCE. [chap. XIX. 
 
 these I'ociuisites, sui'li foroi*;!! jiRl<;mcnt is ii more nullity, and 
 does not iitlbrd even jjji/iui Jioie evidence of u deht.' The 
 judicial proceedings or judgments contemplated hy the act 
 of 1790, were, therefore, not judgincnta rendered without 
 notice to the defendant or ap[)carancc to the action, but 
 judgments which were recognized and enforced at common 
 law as foreign judgments. Judgments of the courts of 
 record of one Slate, rendcr<>(l without notice or apijcarance 
 of the defendant, when sued in the courts of another Slate, 
 are therefore not affected by the statute of 1790, hut ixiuain, 
 as at connnon law, mere nullities, unless within the jurisdic- 
 tion where they were rendered.^ A similar doctrine has been 
 acted upon in Indiana. Thus, in an action on a Kentucky 
 judgment^ the defendant i)leaded that the judgment was ob- 
 tained against him on a recognizance of special bail without 
 iuiy notice having l)een served on him, and without any ca. 
 sa. having been issued against his princi})al. To this plea 
 there was a general demurrer, which was overruled and 
 judgment given for the defendant, l)ccansc no ca. *•«. luul 
 gone. The court, after observing that the judgment of a 
 neighboring State may be impeached for fraud, or for want 
 of jurisdiction, say : "The cause under consideration does 
 not belong to either of those classes of cases. On the one 
 hand, it is a case to which, for the want of personal notice, 
 the act of congress giving to the judgment of one State when 
 sued u[)on in another, the same conclusive effect as it has 
 where rendered, does not properly apply. That act is 1)ased 
 upon the principle that the merits of a cause once fairly and 
 fully tried and determined in one State should not be subject 
 to the subsequent investigations and decisions of the coiu'ts 
 of other States ; but a judgment rendered, like the one in 
 question, in the absence of the defendant, and without any 
 personal notice to him of the suit, cannot be said to have 
 been thus fairly obtained, and consequentl}' does not come 
 within the principle of the act of congress. On the other 
 
 ' Fisher v. Lane, 3 Wilson, 303 ; ' Holt v. AUoway, 2Blackf. (Lad.) 
 Buchanan v. Rucker, 9 East, 192. 108. 
 
 ' And see Hall v Williams, 10 
 Me. 278.
 
 SEC. 249.] DOCUMENTARY EVIDENCE. 777 
 
 hand, although the defeudaiit hud no personal notice of 
 the original suit, yet it does not appear but that he was a 
 resident of tiie State of Kentucky when the action was com- 
 menced, and that the judgment was recovered in conformity 
 with the laws of that State, we would not, it is conceived, be 
 warranted in determining that the court had no j urisdiction. 
 We are, therefore, of opinion, that according to the facts on 
 record, the judgment in this case must be viewed not as con- 
 clusive, for the want of personal notice ; not as absolutely 
 void, since the defendant must be presumed a resident of 
 Kentucky when the suit was commenced, and amenable to 
 its laws ; but we must consider it as a. foreign judgment and 
 j)rima facie evidence of the debt. It is^er se a cause of ac- 
 tion, and may be declared on as in the present case without 
 setting forth the original demand. Its justice, however, is 
 subject to be impeached ; and it may be shown to have been 
 unduly or irregularly obtained.^ Notwithstanding some re- 
 spectable opinions to the contrary, it may be said that in 
 order to give the constitution and act of congress their legit- 
 imate effect, both princi})al and authority require that the 
 judgment of a neighlwring State should be treated in all re- 
 spects as though the court before which it is l)reught were 
 sitting and acting under the laws of the State where it was 
 rendered.^ If it would be couclueive there, it should be held 
 equally so in every other State. An exception to the gen- 
 erality of this proposition might very properly be allowed 
 where the local law, in virtue of which the court rendering 
 the judgment proceeded, infringed upon the sovereignty of 
 other States with regard to their own citizens ; but thus 
 qualified, it will be found to he fully sustained.^ 
 
 * See Cone v. Cotton, 2 Blackf. Allison v. Chapman, 19 Fed. Rep. 
 
 (Ind.) 82 ; Elliott v. Ray, id. 31. 488 ; Clark v. Child, 136 Mass. 844. 
 
 '^ Hinton v. Townes, 1 Hill (N. Judgments of other States have no 
 
 Y.), 439; Hunt v. Lyle, 8 Yerg. extra territorial force as judgTiients. 
 
 (Tenn. ) 142. Elizabeth Savings Inst. v. Gerber, 
 
 " Glenn i;. WilUams, 60 Md. 98 ; 34 N. J. Eq. 130.
 
 INDEX. 
 
 A. 
 
 ABANDONMENT. 
 
 of contract may be shown by parol, 88. 
 of right never presumed, 195. 
 
 ACCEPTANCE. 
 
 of gift presumed, when, 238 
 
 of bequest, 238. 
 
 of conveyance, 238. 
 
 of devise, 238. 
 
 by creditors of debtor's assignment, 238. 
 
 of work done under contract, eflfect of, 673. 
 
 ACCOUNTS. 
 
 presumptions as to, 190. 
 alteration of, rules as to, 649. 
 
 ACCOUNT-BOOKS. 
 
 admissibility of, generally, 390. 
 
 what must be shown to admit, 392. 
 
 rule when better evidence exists, 392. 
 
 rule in different states, 393. 
 
 eflfect of alterations, etc., 398. 
 
 of what they are not evidence, 398. 
 
 what are proper subjects of charge in, 400. 
 
 time of making entries, 404-412. 
 
 presumptions as to entries in, 190. 
 
 presumptions as to balance struck in, 190. 
 
 when they show no appearance of settlement, presumption, 191. 
 
 ACTS. 
 
 of parties cannot be shown to vary contract, 38 
 
 ADMISSIONS. 
 
 of parties as to matters embraced in wiitten instruments, eflfect of, 
 
 10, 11. 
 of loss of paper dispenses with notice to produce, 28. 
 of party cannot be shown to vary wi-iting, 38 n. \ 
 
 in writing, eflfect of, 71. 
 
 of parties admissible against them, 481-503. 
 fact that party is dead does not make them admissible, 482, n. 3. 
 declarations of thii^ person not admissible, although person making 
 is sick or abroad, 483, n.
 
 780 INDEX. 
 
 ADMISSIONS— Cow^mttCfi. 
 
 declarations of person that he has authority, not evidence, 483, n. 
 letters written by party not evidence for him, 487. 
 registry of vessel procured by party not evidence for him 487. 
 survey made by direction of an owner is not evidence for him, 
 
 though ancient, 487. 
 by partners, 487. 
 
 written, not admissible for the party making, 488. 
 inventory made by administrator after suit brought, not evidence for 
 
 him, 488. 
 officer's return not admissible for him, when, 488. 
 statements of party's agent not admissible for him, 489. 
 of party in his favor, admitted, fatal, although court directed jury 
 
 not to regard them, 489. 
 when, of party are admissible in his favor, 489-493. 
 officer's return admissible for him, when, 489^90. 
 certiticate of a justice of a judgment, etc., 490. 
 indorsement of part jjayment on note, 490. 
 
 of party affording any presumptions against him, admissible, 494 
 illustration, 494. 
 
 as to notice of acceptance of guaranty, 495. 
 as to correctness of account, 495. 
 
 made by party as witness in another suit, 495, 496. ■ 
 
 admission of purchaser of lands as to obstruction of water of stream, 1 
 
 495. 
 false reason for conduct, effect of, 496. 
 of marriage, 496. 
 of amount of account, 496. 
 of notice, 496. 
 as to loan, 496. 
 
 opinion not admissible as, 497. 
 conversation by third persons in presence of party, not denied, not 
 
 sufficient as, unless, 497. 
 statements made in presence of party, to which he made no reply, 
 
 effect of, 497, 498. 
 from silence, 499. 
 admissions by one legatee after will is made not admissible against 
 
 others, 499, 500. 
 by one of two or more persons engaged in unlawful act, 500. 
 by principal not admissible against surety, 500. 
 by one partner, 500. 
 
 by husband as to cause of abandoning his wife, 500. 
 made after suit brought, 500. 
 by grantor after parting with title, 500, 501. 
 may be shown to be untrue, 501. 
 made with a view to a compromise, 501. 
 instances of, not admissible, 501. 
 unsworn pleadings, 502. 
 as to failure of title, 502. 
 in undelivered instrument, 502. 
 
 \
 
 INDEX. 781 
 
 ADMISSIONS— Co7i^mtte^. 
 
 recitals in paper executed by third person, 502, 503. 
 
 must be taken together, 503-512. 
 
 different pai'ts of, not entitled to same credit, 505. 
 
 weight to be given to, 512. 
 
 where and how may be discredited, 514. 
 
 by parties to negotiable instruments, 516-521. 
 
 by nominal plaintiff, 516. 
 
 by an indorser, 521. 
 
 by a former owner, 522. 
 
 by persons acting together illegally, 526. 
 
 by co-plaintiffs, 527. 
 
 by co-defendants, 527. 
 
 by one of two or more persons united in interest, 528. 
 
 by husband and wife, 529. 
 
 by attorneys, 534. 
 
 by an agent, 536-555. 
 
 by guardians, 563. 
 
 by nominal parties, 563. 
 
 by executors, 563. 
 
 by assignor of chose in action, 564, n. 1. 
 
 by privies, 560. 
 
 in cases of personalty, 569. 
 
 by principal not admissible against surety, 573. 
 
 by way of compromise, 576. 
 
 how should, be weighed, 578. 
 
 implied from conduct, 580. 
 
 from acquiescence, 584. 
 
 conclusive, when, 589. 
 
 effect of pleading general issue, 592. 
 
 omitting to traverse a plea, 598. 
 
 new assignment, 599. 
 
 acted uj)on by othei-s to their prejudice, 601-608. 
 
 under oath, 608. 
 
 by deed, 608. 
 
 by corporate officers, 609-613. 
 
 ADMINISTRATION. 
 
 letter of, contents not provable by parol, 9. 
 
 AGENCY. 
 
 cannot be established by general reputation, 250. 
 presumi^tions as to, 191. 
 
 AGENT. 
 
 appointment of, may be proved by parol, though made in writing, 5. 
 extent of powers of, established how, 5. 
 wife presumed to be, of husband in his absence, when, 223. 
 principal presumed to have adopted advantageous act of, 238. 
 entries made by, in due course of business, admissible against prin- 
 cipal, 348. 
 entries by, in favor of, as well as against principal, admissible, 349.
 
 J 
 
 782 INDEX. 
 
 AGBNT—Cimtinued. 
 
 deceased, entnea made by, effect of, 350. , 
 
 adiuissions of, admissible, when, 536-555. 
 
 kiiowledg-e of, or notice to, affects principal, when, 555. 
 
 AGREEMENT. 
 
 made by counsel in cause, presumed to have been made by consent of 
 client, 227. 
 
 ALMANAC. 
 
 entries in, to prove pedigree, 271. 
 
 ALTERATION. M 
 
 of contract may be shown by parol, 88. ^ 
 
 in entries in account-books, effect of, 398. 
 
 of written contract, party benefited by, must explain, 646, 649. 
 in accounts, effect of, 649. 
 mortgage, 649. 
 
 burden to explain, on whom, 649. 
 as to materiality of, for court, 649. 
 of official document, presumption as to, 649. 
 of premises inspected by jury, 649. 
 
 MBIGUITIES. 
 
 in contract raised by extrinsic proof, 46. 
 
 patent, rules as to, 50, 52. 
 
 as to subject-matter of the writing, 51. 
 
 AMBIGUITY. 
 
 in contract may be explained by parol, when, 37-48. 
 
 ANCIENT BOOK. 
 
 evidence, when, 282, 284. 
 ANCIENT DOCUMENTS. 
 
 admissible to support ancient possessions, 277. 
 
 what are, 277. 
 
 presumptions as to, 277. 
 
 pui"porting to be part of transactions, effect of, 278. 
 
 admissible to establish modem rights, 278. 
 
 illustrations, 278, 279. 
 
 old maps annexed to a deed, effect of, 279. 
 
 old maps not connected with deed, 279. 
 
 when old deeds, leases, etc., are admissible, 280, n. 2. 
 
 proof of i^ossession under, necessary, 280, 281. 
 
 possession, even for a short time, sufficient, 281, 282. 
 
 custody of, important element, 283-287. 
 
 lands of indivnduals, bounded on to^vn lines, etc., rale, 284, n. 3. 
 
 position of parties, presumed to be as stated in, 301. 
 
 ANCIENT POSSESSION. 
 
 may be proved by hearsay, 277-287. 
 ancient documents, proof of, 278. 
 
 APPEAL BOND. 
 
 interlineation in, rule as to, 231.
 
 INDEX. 783 
 
 APPORTIONMENT. 
 
 of rent, agreement for, cannot be shown by parol, 111. 
 
 APPRAISERS. 
 
 certificates of, 716. 
 
 ASSIGNMENTS. 
 
 parol evidence as admissible to explain, when, 107. 
 
 ASSIGNOR. 
 
 of chose in action, not bound by judgment against assignee, when, 
 745. 
 
 ASSIGNEE. 
 
 equitable, bound by judgment against third person, when, 747. 
 
 ASSUMPSIT. 
 
 in actions of, againslT carrier for non-delivery of writings, notice to 
 produce, not necessary, 28. 
 
 ATTESTED INSTRUMENTS. 
 
 due execution of, must be proved when, 3, n. 2. 
 how proved, 3, n. 2. 
 
 ATTORNEY. 
 
 notice to produce paper may be served on, 31. 
 
 agreement of, in cause, presumed to have been made by consent of 
 client, 227. 
 
 AUCTIONEER'S MEMORANDUM, 
 original must be preduced unless, 2. 
 
 B. 
 BANK. 
 
 entries in books of, admissible when, 375-379. 
 admissible to prove notice, payment, etc., 375, n. 2. 
 JSee Metropolitan Bank v. Smith, 376. 
 memoranda made by messenger of, admi^ible, when, 375, n. 1. 
 entries made by teller, when not admissible, 375. 
 entries made by third persons, 375. 
 entries made by cashier, 376, n. 2. 
 books of, to prove payment to parties on checks, 377. 
 
 BANKER'S LEDGER. 
 
 evidence, when, 353. 
 
 BEST AND SECONDARY. 
 
 evidence. See Primary Evidence. 
 
 BILLS OF EXCHANGE. 
 
 parol evidence admissible to show that, drawn on officer of corpora- 
 tion individually and accepted by him as treasurer, was intended 
 to bind corporation, 46. 
 
 interlineation in, rule as to, 230. 
 
 notice, etc., may be proved by entry in books of bank or of a notary 
 made in due course of business, 374, n.
 
 784 INDEX. 
 
 BILLS OF EXCHANGE— Co?ifMmed. 
 
 memoranda made by bank messenger, 374. 
 
 entry in bank-book, when not admissible to prove notice, etc., 375. 
 
 entries made in books by third i)ersons, 375. 
 
 pass-books of, 377. 
 
 books of, how must be proved, 378. 
 
 BILL IN EQUITY. 
 
 dismissal of, not conclusive as to party's rights at law, 749. 
 
 BILL OF LADING. 
 
 how far explainable by parol, 76. 
 
 nature of, 108. 
 
 how far explainable by parol, 108. 
 
 signed by deceased master of vessel, effect of, 351. 
 
 'prhna facie evidence of, all it purports to be, 668. 
 
 BILLS OF SALE. 
 
 contents of, cannot be proved by parol, 9. 
 
 cannot be contradicted or explained by parol, when, 64. 
 
 when may be, 64. 
 
 of vessel may be shown to have been intended only as collateral 
 
 security, 95. 
 cannot be shown as merely collateral, when, 109. 
 
 BIRTH. 
 
 memoranda made by parent admissible to prove date of, 272. 
 
 BONDS. 
 
 in action for conversion of, notice to produce not necessary to let in 
 secondary proof, 27. 
 
 BOOKS. 
 
 entries in private, 332-338. See Entries. 
 
 BOOK OF ACCOUNTS, 
 what is original, 391. 
 how must be supplemented, 391. 
 rule as to, in New York and Georgia, 392. 
 rule as to, in Texas, etc, 392, n. 3. 
 when better evidence exists, rule, 392. 
 rule as to, in different states, 393-398. 
 alterations in, effect of, 398. 
 e\'idence of, what, 398. 
 
 what are proper subjects of charge in, 400-403. 
 time of making changes in, 404-412. 
 
 BOOKS OF CORPORATION. 
 
 general rules as to admission of, 374. 
 
 entries in, when admissible, 374. See Corporations. 
 
 BOUGHT AND SOLD NOTES. 
 
 what is primary evidence of, 12.
 
 INDEX. 785 
 
 BOUNDARIES. 
 
 private, hearsay admissible to establish, when, 305-307. 
 declarations of deceased surveyors, 307-310. 
 of persons shown to be in a situation to know, 310-312. 
 when not admissible, 312-315. 
 declarations of owners, 315-320. 
 illustrations, 315-320. 
 
 traditionary evidence to establish, 305-320. 
 when admissible, 305-312. 
 
 person need not have been owner of the land, 305, 307. 
 general rule as to this class of evidence, 305, 306. 
 person making declaration must be dead, 305. 
 declarations of deceased surveyors, 307-310. 
 See Blythe v. Sutherland, 308. 
 Bonnett v. Devebaugh, 309 
 Caufman v. Presbyterian Cong., 309, 310. 
 declarations of persons shown to have been in a situation to know, 
 310-312. 
 
 See Hall v. Gittings, 311. 
 
 Harris v. Powell, 311, 312 
 when such evidence is not admissible, 312-315. 
 when may be proved by reputation, 312. 
 
 See Conn v. Penn, 312-315. 
 when declarations made by owners are admissible, 315-320. 
 
 See Young v. Evarts, 317, n. 5. 
 declarations of former owners after their decease, 316. 
 
 BRIDGES. 
 
 presci'iptive liability to repair, established by hearsay, 256. 
 
 BURDEN OF PROOF. 
 
 real test for determining upon whom it rests, 644-647. 
 
 form of pleadings does not change, 644. 
 
 in actions for personal injuries, 644. 
 
 matter in mitigation, 645. 
 
 where indorsement of note before maturity is denied, 645. 
 
 when defendant denies that plaintiff owns the note sued on* 645. 
 
 when want of consideration is set up, 645. 
 
 where consideration is claimed to be illegal, 646. 
 
 usury, 646. 
 
 when authority of agent to sign note is denied, 645. 
 
 when waiver of notice and protest is i-elied on, 646. 
 
 payment, 646. 
 
 performance of admitted contract, 646. 
 
 where matter is set up in avoidance, 646. 
 
 where matter is in justification, 646. 
 
 in case of special defenses, 646. 
 
 when statute of frauds, limitationSj etc., is set up, 641 
 
 in assumpsit, 647. 
 
 account, 647. 
 
 book account, 647. 
 
 50
 
 786 INDEX. 
 
 BURDEN OF FROOF—Cojitinued. 
 
 stated account, mistake alleged, rule as to, 648. ' 
 
 action upon contract made by reputed agent, rule, 648. 
 where lien has attached, 649. 
 
 in actions against carrier for injury to person, 650. 
 action against carrier for loss of goods, 650. 
 official misconduct, 652. 
 settlement of pauper, 652. 
 upon whom lies, 642-650. 
 illustrations, 644-650. 
 
 distinction between, and weight of evidence, 643. 
 where fraud is alleged, 650. 
 in action for malicious prosecution, 652. 
 in criminal prosecutions, 658. 
 
 instances in which law presumes affiimation of the issue, rule, 653. 
 note, action on, production of note, effect of, 653. 
 as to disseizin, 656. 
 
 in ejectment for breach of condition, 656. 
 
 in qui tarn against a clerk for issuing maniage license to minor with- 
 out consent, 656. 
 party holding afhrmative of the issue, takes, 647, 653. 
 exceptions to the rule, 653-657. 
 
 rests upon state to prove persons guilty of a crime, 657. 
 innocence presumed, 657. 
 in case of lost notes, 658. 
 as to instrument mutilated or destroyed, 660. 
 to establish want of consideration of note, 660. 
 in action on a note, 665. 
 in trover, 665. 
 of establishing title, 666. 
 as to possessory title, 666. 
 
 c. 
 
 CARRIERS. 
 
 presumption when goods are lost by, 192. 
 
 in actions against, for not delivering writings, notice to produce not 
 
 necessary, 28. 
 in actions against, for negligence, 650. 
 proof required to be made by plaintiff, in action against, 650. 
 
 CERTIFICATE. 
 
 official, blanks in note explainable by parol, 53, n, 2. 
 See Clements v. Taylor, 53, n. 2. 
 
 CERTIFIED COPY. 
 
 what is, 696. 
 
 instances in which, held admissible, 697-709. 
 
 priTna facie evidence of contents, 696. 
 
 who may certify, 697-709. 
 
 by executive officers, 709. 
 
 by clerks, 711.
 
 INDEX. 787 
 
 CERTIFIED COVY— Continued. 
 by judicial officers, 712. 
 by notaries, 713. 
 consular certificates, 716. 
 by appraisere, 716. 
 inspectors, 716. 
 surveyors, 716. 
 government inspectors, 717. 
 by land officers, 717. 
 
 CHARACTER. 
 
 presumptions as to, 193. 
 
 bad, presumed to continue, 225. 
 
 CHECK. 
 
 giving of, raises presumption that drawer has funds to meet it, 226. 
 books of bank, admissible to prove payment of, 377. 
 possession of, by bank on which drawn, effect of, 673. 
 
 CHILDREN. 
 
 affection for by parents will be proved to continue, 225. 
 
 CHURCH REGISTERS, 
 evidence when, 681. 
 effect of, as proof, 681-684. 
 to prove marriage, etc., 683. 
 of what facts, evidence, 681-684. 
 
 CLEARANCE. 
 
 copy of, certified by deputy collector, evidence when, 723 
 
 CLERK; 
 
 entries made by deceased, 349. 
 
 must be made in usual course of business, 349. 
 
 books must be properly kept, 349. 
 
 matters must be proper subject of book charge, 349. 
 
 what are proper subjects of book charge, 349. 
 
 entries made by, in due course of business, admissible, when, 348. 
 
 See Wilcox v. Silver Plate Co., 348. 
 entries by, in favor of, as well as against employer, admissible, 349. 
 
 CLERKS OF COURTS. 
 
 certified copies made by, 711. 
 
 CLERK'S MINUTES. 
 
 of testimony of witness, not original evidence of, 4. , 
 
 COHABITATION. 
 
 marriage may be proved by evidence of, 268. 
 
 COLLECTOR. 
 
 of taxes acting as, evidence of official character, 304. 
 general hearsay admissible to prove that person was, 304. 
 
 COLLATERAL MATTERS. 
 
 matter collateral to written contract, rules as to, 4. 
 what are, 4.
 
 788 INDEX. 
 
 COLLATERAL UATTBRS—Coidmued. 
 extra work under written contract, 4. 
 cannot be shown by parol when, 76, 77. 
 may be proved by parol, 74-77. 
 instances of, 74-77. 
 
 may be proved by parol, when, 99-101. 
 judg'ment not conclusive upon, 738. 
 
 COLLECTOR OF TAXES. 
 
 entries made by deceased, effect of, 351. 
 
 COMMON CARRIERS. 
 
 presumption from jiroof of delivery to, and non-delivery by, 192. 
 of passengers, presumption of negligence arises, when, 192. 
 
 COMMON LAW. 
 
 of another state, how proved. 680. 
 of foreign country, 686. 
 
 CONCLUSIVE PRESUMPTIONS. 
 
 what are, 170. 
 
 instances of, 170. 
 
 of a grant, 170. 
 
 that every person above fourteen years knows what the law is, 170. 
 
 that person intends probable consequences of his acts, 171. 
 
 as to records of court, 171. 
 
 after twenty years, that all parties to the record had notice, 171. 
 
 that principal has knowledge of facts acquired by him during his 
 agency, 171. 
 
 that all persons are legitimate, unless, 171. 
 
 that child under seven years is incapable of committing a crime, 171. 
 
 that male child under fourteen is incapable of committing a rape, 171. 
 
 that female under ten is incapable of consent to sexual relations, 172. 
 
 after thirty years that executors, etc., observed all requisite form- 
 alities in selling land, 172. 
 
 after thirty years, as to execution of ancient wills, deeds, etc., 172. 
 
 what must be shown as to custody of papers to raise presumption as 
 to genuineness, etc., 172. 
 
 possible exceptions, 172, 173. 
 
 estoppels as, 173. 
 
 CONDITION SUBSEQUENT. 
 
 party relying on, must prove breach of, even though it involves 
 proof of a negative, 656. 
 
 CONSIDERATION. 
 
 of contract may be shown by parol, when, 74. 
 
 want of, may be shown, 74. 
 
 failure of, 83, 84. 
 
 of sealed instrument, rule as to, 81-83. 
 
 when none is stated in instrument, rule, 82. 
 
 when purports to be " for divers good considerations," etc., 82. 
 
 love and affection, 82, 83. 
 
 of deed may be shown not to have been in fact paid, 83.
 
 INDEX. 789 
 
 CONSPIRACY. 
 
 how may be proved, 236. 
 
 CONSPIRATORS. 
 
 declaration of one, evidence against co-conspirator, when admissible, 
 
 475. 
 when not, 479. 
 writings in possession of, before and after apprehension, 479. 
 
 CONSTABLE'S RETURN. 
 
 effect of, as evidence, 670. 
 
 CONSULAR CERTIFICATE. 
 effect of, 716. 
 
 CONTINUANCE OF FACT. 
 
 presumptions as to, 180-184, 224, 225. 
 
 CONTRACT. 
 
 written, must be proved how, 2. 
 
 latent ambiguity in, may be explained by parol, 37-48. 
 
 illustrations, 37-48. 
 
 written, all verbal agreements, etc., merged in, 37. 
 
 parol evidence not admissible to contradict, 37-46. 
 
 imperfect, rules as to, 51. 
 
 blanks in, 51, 52. 
 
 parol evidence to apply, 51-52. 
 
 explained by parol, when, 53. 
 
 parol evidence not admissible to alter effect of written, 55. 
 
 time of payment under, cannot be shown, when, 55. 
 
 that different quality of goods was intended cannot be shown by 
 
 parol, £5. 
 apparent deficiencies in, may be supplied by parol, 56-68. 
 illustrations, 58-68. 
 not pui'porting to be complete, parol evidence admissible to add 
 
 terms to, 56. 
 illustration, n. 2, p. 56. 
 
 independent, may be shown by parol, 56-68. 
 exception, when within statute of frauds, 56. 
 when written projiosal is not accepted, rule, 56. 
 fraud in, may be shown by parol, 77-81. 
 
 cannot be shown that parties agreed it should be a sham, 78, n, 
 signed by persons who cannot read, rule, 78. 
 execution of, obtained by fi-aud, 78, n. 
 omission or interpolation of material parts, 78. 
 illegality in, may be shown, 79. 
 
 may be shown party had not capacity to execute, 80. 
 collateral, maybe shown, when, 99-101. 
 several writings may be looked at to ascertain intention of parties, 
 
 when, 101-106. 
 equity will reform for mistakes in, when, 83-88. 
 will i-escind, when, 86. 
 alteration of, may be shown by parol, 88.
 
 790 INDEX. 
 
 CONTRA CT— Continued. 
 
 of hiring-, may be explained by usage, when, 156, 157. 
 
 made through interpreter, party bound by admissions of the latter, 
 
 499. 
 date of, not conclusive, 668, 669. 
 beai'ing name of party in suit, presumption, 669. 
 
 CONVEYANCE. 
 
 presumed, when, 199-202. 
 due formalities presumed, 199. 
 authority to make, presumed, when, 199. 
 
 COPIES. 
 
 not admissible when original can be produced, 2. 
 
 of contract, 2. 
 
 auctioneer's memorandum, 2. 
 
 of telegrams, 2, also n. 3. 
 
 special cases in which rule as to production of originals applies, 3. 
 
 of contents of what books admissible, 7, 8. 
 
 of written contracts, etc., not admissible, unless, 11. 
 
 ground for admission of, must be laid, 12. 
 
 of manuscript, 12. 
 
 letteii^ress, 12. 
 
 taken by copying machine, 12. 
 
 of books of corporations, rule as to, 386-389. 
 
 of letters, 32, 7i. 4. 
 
 of ancient copies, 32. 
 
 of entries by deceased clerks, 32. 
 
 of judgments, 32. 
 
 of executions, 32. 
 
 of wills, 32. 
 
 of anrdent books, 32, 
 
 of writs, 32. 
 
 of bonds, 32. 
 
 of specialties, 32. 
 
 of contracts, 32. 
 
 of deeds, 33. 
 
 of patents, 33. 
 
 of what documents, are admissible, 691. 
 
 kinds of, 33, 692. 
 
 exemplified, what are, 692. 
 
 office, what are, 693. 
 
 examined, what are, 694. 
 
 certified, what are, 696. 
 
 CO-PLAINTIFFS. 
 
 admisaions by one or more of, 527. 
 
 COPYING MACHINE. 
 
 copies taken by, not admissible unless, 12 
 
 CORPORATIONS. 
 
 books of, out of state, how contents of, may be proved, 15, n. 5.
 
 INDEX. 791 
 
 CORPORATION. 
 
 once organized, presumed to continue its existence, 225. 
 as to who are officers of, cannot be shown by general reputation, 250. 
 custom of, hearsay, 256. 
 entries in books of, when admissible, 374. 
 general rules as to admission of, 374. 
 books of,- evidence of its acts, when, 379, n. 4. 
 to prove organization, 378. 
 acceptance of charter, 380. 
 who are stockholders, 380, 382. 
 what was done at meeting of, 380. 
 who were elected officers of, 380. 
 may be impeached, 380. 
 may be used in favor of, when, 380-389. 
 when lost, etc., rule, 380, n. 9. 
 
 need not be produced to prove authority of officers, 381, n. 
 to prove by-laws of corporation, 381, n. 
 to prove appointment of officers, when, 381. 
 made 'prima facie evidence by statute in some states, 382. 
 evidence of legality of its proceedings, when, 382. 
 not to prove usage, unless, 382. 
 of municipal, 383. 
 copies of entries in books of, not generally admissible, 386. 
 
 See Ridgway v. Farmers' Bank, 387. 
 when examined copies of, may be used, 387. 
 certified copies of books of, not admissible, unless, 388. 
 rule in Massachusetts as to copies of books of religious, 388. 
 receipt-books of, 388. 
 
 books of, admissible between, and stockholders, 376. 
 not in actions between strangers unless, 376. 
 evidence of its proceedings, when, 379. 
 minutes of, 379, n. 4. 
 
 evidence in actions against it to prove organization, 379. 
 to show who are stockholders, 380. 
 to prove a call and amount, 380. 
 as to what resolutions were passed, 380. 
 who were elected officers, 380. 
 when admissible for the corporation, 380-389. 
 how acceptance of charter should be proved, 380. 
 how acceptance when books are lost, 380, n. 9. 
 not necessary to prove powers of officers, 381, n. 
 or appointment of officers of, 381, n. 
 by-laws of, may be proved by the books, when, 381, n. 
 entries in books of, stand in same relation as entries in tradesman's, 
 383. 
 
 COUNTIES. 
 
 boundaries of, established by hearsay, 256. 
 
 COUNTY COMMISSIONER. 
 
 general hearsay admissible to prove that person was, 305.
 
 792 INDEX. 
 
 COURSE OF TRADE. 
 
 presumptions arising from, 222. 
 
 COURT. 
 
 question of fraudulent intent in desti-oying' papers for court, 17. 
 presumption tiiat records of, are correct, conclusive, 171. 
 presumptions as to jurisdiction of, 205. 
 
 judgments of, conclusive when distinction between judgment of 
 coui'ts of concuiTent and exclusive jurisdiction, 739. 
 
 COVENANT. 
 
 action of, burden of proof in, G55. 
 
 COVERTURE. 
 
 may be shown to avoid contract, when, 80. 
 
 CRIMINAL PROSECUTION. 
 
 where burden of proof rests, 652, 657. 
 
 CUSTOM. 
 
 when admissible to affect rights of tenant, 122. 
 when not, 123. 
 
 CUSTOMS. 
 
 not public, hearsay to establish, 259. 
 how must be proved, 287, n. 6 ; 288, 290. 
 
 See King v. Antrobus, 287. 
 general reputation to prove, 303. 
 or usage, how must be proved, 287, n. 6. 
 reputation not admissible to prove, 287. 
 
 See Bishop of Meath v. Belfield, 288. 
 
 CUSTOM OF THE COUNTRY. 
 
 as to claims of an out-going tenant, admissible, 122. 
 
 CUSTOMARY RIGHTS. 
 
 attaching to leases, may be shown when, 122. 
 
 CUSTOM-HOUSE BOOKS. 
 
 contents of, hnw proved, 8, 9. , 
 
 CUSTOM-HOUSE RECORDS. 
 
 examined copy of, evidence, 723. 
 
 D. 
 
 DAMAGES. 
 
 presumptions as to, 194. 
 
 when more than nominal, are claimed, rule, 194. 
 
 done by cattle of two or more persons, rule, 194. 
 
 DATE. \ 
 
 of process 'prima facie evidence of time when issued, 668. | 
 
 DEATH. 
 
 presumption of, how raised, 184-186. 
 rule under civil and Scotch law, 182, 183. 
 
 by lapse of less than seven years, when, 184. \
 
 INDEX. 793 
 
 DEATH— Contimted. 
 
 of person must be shown before declarations of, are admissible, 329. 
 presumption of, from grant of administration, 667. 
 party shown to be missing, as evidence of, 667. 
 by proof of absence for seven years, 667 
 
 DEED. 
 
 title by, must be proved how, 3. 
 
 execution of, must be proved when, 3, ?i. 2. 
 
 not written evidence of the contract, rule as to, 10. 
 
 contract which led up to making of, may be shown by parol, 10, n. 
 
 agreements collateral to, may be shown by parol, when, 57, n. 2. 
 
 frauds in execution of, may be shown, 78, n.; 79, 86. 
 
 evidence going to show, was never duly executed, 80. 
 
 may be shown party had not capacity to execute, 80. 
 
 that it was delivered in escrow, 80. 
 
 absolute on its face, may be shown to have been intended as mort- 
 gage only, when, 95-99. 
 
 alteration in, effect of, 231, 232, also n. 
 
 presumptions as to due execution of, 240. 
 
 as to delivery of, 241. 
 
 as to seal, 241. 
 
 not executed according to law are not evidence, however old they 
 may be, 280, n. 2. 
 
 thirty years old prove themselves, when, 277-282. 
 
 possession under, dispenses with proof of execution, 280, also n. 2 ; 
 281, 282. 
 
 proof of execution, how may be made, 280, ?/. 2. 
 
 loss of, must be shown before copy can be used, 380, n. 2. 
 
 receipt for purchase-money in, effect of, 667. 
 
 date of, not conclusive, 668. 
 
 recitals in old, evidence of title, 673. 
 
 more than thirty years old, prove themselves, when, 772. 
 
 DECEASED PERSON. 
 
 declarations of, to establish private boundaries, 305-320. 
 entries made by, to what extent evidence, 350. 
 
 DECIET. 
 
 in procuring contract may be shown by parol, 63, 64. 
 
 DECLARATION. 
 
 of deceased persons to establish public rights, etc., 262. 
 
 grounds on which admitted, 262, 263. 
 
 lis mota, 262-264. 
 
 of deceased collectors, when paying money over to landlord, effect 
 of, 352. 
 
 of testator, in suit by executor, 352. 
 
 of former owner of land, 352. 
 
 of former owner in bill in equity, when not admissible against gran- 
 tee, 353. 
 
 of tenants, not admissible against reversioners, 353.
 
 794 INDEX. 
 
 DECLARATION— Continued. 
 
 or entry made by disinterested deceased person/353. 
 
 entry of service of notice by deceased clerk, 353. 
 
 entries made by deceased solicitor, 353. 
 
 receipts signed by deceased clerk, 353. 
 
 oral, 353. 
 
 of third pei-sons not admissible as evidence of fact, 483, 
 
 of jiarty to prove acceptance of order, 486. 
 
 as to legitimacy. iSce Legitimacy. 
 
 DECLARATIONS OF DECEASED PERSONS. 
 
 when admissible, 328. 
 
 presumjition upon which admission of, is predicated, 328. 
 
 verbal or wntten, admissible, 329. 
 
 conditions precedent to admission of, 329-332. 
 
 See Abel v. French, 330, n. 4. 
 death of, must be shown, 329. 
 interest of, 330, 331. 
 entries in private books, 332. 
 conditions precedent, 338-342. 
 against interest, general rule as to, 328. 
 kinds of, admissible, 329. 
 conditions precedent to admission of, 329-331. 
 
 DECREES. 
 
 old, when admissible to establish public rights, 295-297. 
 in admiralty, effect of, as proof of title, 668. 
 
 DECREE IN EQUITY. 
 
 effect of, on legal rights of parties, 750. 
 
 DE FACTO OFFICERS, 
 who are, 211, 212. 
 acts of, binding when and upon whom, 211. 
 
 DEMAND. 
 
 note payable on, parol proof not admissible to show agreement in- 
 consistent with, 53. 
 
 DEMAND AND NOTICE. 
 
 waiver of, may be sho^vn by parol, when, 76. 
 
 DEPARTMENTAL RECORDS, 
 how proved, 721. 
 
 DEPOSIT. 
 
 books of bank admissible to prove amount and character of, 377. 
 
 DEPOSITION. 
 
 of witness, not admissible unless, 4. 
 
 in perpetuum, when admissible, 4. 
 
 used in another cause, evidence when, 738. 
 
 DISCHARGE. 
 
 of contract, may be shovra by parol, 89 
 
 I
 
 INDEX. 795 
 
 DISHONOR. 
 
 of bill, entry of by deceased notary, 354. 
 
 DISHONOR OF BILL. 
 
 notice of, may be proved by parol without notice to produce notice of, 
 when, 27. 
 
 DISMISSAL. 
 
 of bill in equity, not conclusive as to party's rights at law, 750. 
 
 DISPUTABLE PRESUMPTIONS. 
 
 what are, 177. 
 
 DOCUMENTS. 
 
 required by law to be kept in certain custody, secondary evidence of, 
 
 admissible, when, 18, n. 3. 
 more than thirty years old, prove themselves, when, 277, n. 1 ; 278, 
 
 280, 11. 2 ; 281, 282-287. 
 ancient, 278, n 1. 
 
 from what source should come, 278, n. 1. 
 as proof of boundaries, 278, n. 1. 
 ancient leases, as evidence, 278. 
 rule as to, 283. 
 
 genuineness may be proved, how, 283-287. 
 old, admissible to establish public rights, 291. 
 manorial, 292. 
 
 DOCUMENTARY EVIDENCE. 
 
 classes of, 675. 
 
 legislative journals, 675. 
 
 foreign statutes, 677. 
 
 private statutes, 680. 
 
 common law of a state or country, 680. 
 
 church registers, etc., 681. 
 
 ship registers, 685. 
 
 patents for inventions, 689. 
 
 patents for lands, 689. 
 
 copies, 691. 
 
 instances in which certified copies, etc., have been held admissible, 697. 
 
 certificates by executive officers, 709. 
 
 certificates by clerks, 711. 
 
 certificates by judicial officers, 712. 
 
 notarial certificates, 713. 
 
 marine protests and surveys, 715. 
 
 consular certificates, 716. 
 
 certificates by appraisers, inspectors, etc., 716. 
 
 certificates by land officers, 717. 
 
 surveys of lands, 719. 
 
 United States departmental records, 721. 
 
 land office records and papers, 722. 
 
 custom-house records, 723. 
 
 state land office papers, 723. 
 
 state grants, 724.
 
 796 INDEX. 
 
 DOCUMENTARY EVIDENCE— Ctwiiniied. 
 state records, 725. 
 verdicts, 726. 
 judgments, 726. 
 
 proof of foreign judgments, etc., 731. 
 between what parties admissible, 733. 
 judgment conclusive of fact recorded, 736. 
 not conclusive on immaterial averments, 736. 
 effect of judgment, 737. 
 
 DOMICIL. 
 
 burden of proof to show change of, 656. 
 
 DRAFTS. _ 
 
 possession of, by pereon or corporation on whom drawn, 673. I 
 
 DUPLICATES. 
 
 contracts, etc., executed in each, is an original, 10. 
 of writing is original, when, 20. 
 
 DUCES TECUM. 
 
 subpoena on third person necessary when, 31. 
 
 DURESS. 
 
 in procuring contract, may be shown by parol, 77. "^ 
 
 DUTY. y 
 
 persons presumed to perform, 229. 
 
 DYING DECLARATIONS, 
 when admissible, 321-325. 
 to what matters, 325. 
 must be complete, 325. 
 what should control as to admission of, 326. 
 
 E. 
 
 EJECTMENT. 
 
 recovery in, prima facie evidence of title, 668. 
 judgment in, eflFect of, 747, also n. 4. 
 
 ENTRIES. 
 
 in account-books, presumptions as to, 190. 
 
 in private books, 332-338. 
 
 person making must be dead, 338-342, 350 
 
 illustrations, 332-342. 
 
 may be used as evidence of collateral and independent matter, 342-345. 
 
 illustrations, 342-345. 
 
 made by persons in office, 345-348. 
 
 rules as to same, 345-348. 
 
 made by agents, clerks, etc., 348-356. 
 
 admissible on e\ndence of all facts stated in them, 350. 
 
 illustrations, 350-356. 
 
 by deceased shopmen or servants, 354. 
 
 made in course of office, 355.
 
 INDEX. 797 
 
 ENTRIES— Cmti?med. 
 
 made by person living, although out of jurisdiction, not admissible, 
 
 D51. 
 death of party making, will be presumed, when, 351. 
 made by bank messengers, 374. 
 
 ENTRIES BY DECEASED PERSONS. 
 
 condition precedent to admission of, 338-342. 
 
 as evidence of independent and collateral matters, 342-345. 
 
 when admissible, 332-356. 
 
 AS'ee Whitmarsh v. Genge, 332. 
 
 Respublica v, Davis, 333. 
 
 State Bank v. Johnson, 333. 
 
 Pendleton v. Bank of Ky., 333. 
 as affecting sureties, 333-335. 
 exceptions, 335, 336. 
 illustrations, 336, 337. 
 
 ENTRY. 
 
 upon lands, presumed to be with lawful intent, 228. 
 
 effect of, 673. 
 
 in day-book, effect of, 667. 
 
 EQUITABLE ESTOPPELS. 
 
 /See Estoppels. 
 
 EQUITY. 
 
 will reform instrument, when, 83. 
 
 will rescind, when, 86. 
 
 will not relieve, against false representations, unless, 651. 
 
 burden upon party alleging, to establish, 651. 
 
 ESTOPPELS. 
 
 as presumptions, 173-176. 
 
 upon whom binding, 173. 
 
 estoppel against estoppel, rule, 174. 
 
 in pais, 175. 
 
 equitable, 175. 
 
 ESTOPPELS IN PAIS. 
 
 what are, 175. 
 
 what must be shown to establish, 176. 
 ESCROW. 
 
 deed may be shown to have been delivered in, 80, 81. 
 EVIDENCE. 
 
 primary, what is, 1. 
 
 best and secondary, 1-34. 
 
 of written contracts, 2-34. 
 
 auctioneer's memorandum, 2. 
 
 telegrams, 2, re. 3. 
 
 of title by deed, 3. 
 
 rules of, as to production of original of writings, 3.
 
 798 INDEX. 
 
 BYIDENCE— Continued. 
 of payment, 3. 
 
 copies admissible, when, 11, 12. 
 secondary, admissible, when, 12-15. 
 
 principles upon which it depends as to written instruments, 36. 
 general objects of, 642. 
 prima facie, what is, 665. 
 
 /See Primary Evidence— Secondaby Evidbncb— Parol Evidbncb — 
 Hearsay Evidence— Witness' Admissions. 
 
 EXAMINED COPY, 
 what is, 33, 694. 
 
 EXCISE BOOKS. 
 
 contents of, how proved, 8. 
 
 EXCLAMATIONS OF PAIN. 
 
 part of res gestae, when, 416, 417, n. 4. 
 
 EXECUTORS. 
 
 contents of, not provable by parol, 9. 
 
 after certain periods, are conclusively presumed to have complied 
 
 with the law, 172. 
 license to sell, etc., should be proved, 172. 
 
 EXECUTION. 
 
 in levy of, officer presumed to have taken all necessary steps, 652. 
 
 EXECUTIVE OFFICERS. 
 
 certilied copies made by, 709. 
 
 EXEMPLIFIED COPY, 
 what is, 33, 692. 
 
 EXPERTS. 
 
 evidence of, admissible to explain contracts, when, 39, n. 
 
 EXTRA WORK. 
 
 under written contract, rules as to recovery for, 4. 
 
 when may be recovered for, without producing written contract, 4, 5. 
 
 EXTRINSIC PROOF. 
 
 to raise ambiguity in contract, 46. 
 illustrations, 46, 47. 
 
 F. 
 
 FALSE REPRESENTATIONS. 
 
 upon sale of property, what party alleging must show, 651. 
 mere expressions of opinion do not constitute, 651. 
 receivable in equity only, when relate substantive matter, 651. 
 
 FAMILY BIBLE. 
 
 entries in, admissible to prove pedigree, etc., when, 271. 
 ground of admissibility of, 271. 
 handwriting of, need not be proved, 271.
 
 INDEX. 799 
 
 15'EIIIIY. 
 
 light of, may be established by hearsay, 256. 
 
 FORMER OWNER. 
 
 of note, admissions by, 522. 
 
 FOREIGN CORPORATIONS. 
 
 books of account of state, contents may be proved, how, 15, n. 5. 
 copy of books of, annexed to depositors, 15, n. 5. 
 
 FOREIGN JUDGMENTS. 
 
 how proved, 731-733. 
 
 effect of, 7.54-761. 
 
 may be impeached, how, 761, 
 
 conclusive, when, 754. 
 
 conclusive when comes incidentally in question, 755. 
 
 illustrations, 755, 756. 
 
 rendered without jurisdiction, void, 756. 
 
 judgment of United States courts not, 756. 
 
 constitutional provision as to judgments of courts of the several states, 
 756. 
 
 decisions in various states as to effect of, 757. 
 
 judgments of other states generally regarded as conclusive, 757. 
 
 judgments of other states may be impeached, how, 758, 759, 761-777. 
 
 rules as to justice's judgments, 760, 761, 767. 
 
 when rendered without personal notice, effect of, 762. 
 
 illustrations, 762. 
 
 jurisdiction of court always open to inquiry, 763. 
 
 presumptions as to jurisdiction, 763. 
 
 compliance with local law, open to inquiry, 763, 764, 765-767. 
 
 instances, 764, 765-767. 
 
 reversal of, may be shown, 764. 
 
 presumptions as to courts of limited and special jurisdiction, 767. 
 
 statutes conferring special jurisdiction must be proved, 768. 
 
 summary proceedings, etc., 768. 
 
 what measure of jurisdiction the legislature could confer, open to in- 
 quiry, 768. 
 
 judgment obtained in foreign jurisdiction upon non-resident by attach- 
 ment of property, effect of, 769. 
 
 judgment obtained by arrest, 769. 
 
 decrees of divorce, 761, n. 7 ; 769, n. 1. 
 
 judgment obtained by publication of notice, 770. 
 
 judgment obtained without personal notice, llQ-lll. 
 
 party appearing, effect of, 771. 
 
 personal notice obtained by violence or fraud, 772. 
 
 appearance of party by attorney, 772. 
 
 FOREIGN STATUTES. 
 
 how proved, 677. 
 FRAUD. 
 
 in destruction of paper, effect of, 13, 14. 
 
 in procuring contract, may be shown by parol, 63, 64, 65.
 
 800 INDEX. 
 
 FRAVD—Coritinued. 
 
 in sale of land, may be shown either as ground of, or defense to ac- 
 tion, 65. 
 may be shown by parol, 77, 112, n. 3. 
 presumptions as to, 194. 
 will not be presumed, 229. 
 exceptions to rule, 234, 235. 
 burden of proving rests on i)arty alleging, 650. 
 what must be shown to establish, 651. 
 is never presumed, 652. 
 
 G. 
 
 GENERAL BELIEF. 
 
 admissible, when, 248, 249. 
 
 GENERAL ISSUE. 
 
 effect of pleading, 592. 
 
 what is admitted by, 592-598. 
 
 in suit by administrators, 592. « 
 
 in suit by corporation, 592. a 
 
 in suit by guardian, 592. 
 
 as to residence, 592. 
 
 in wi'it of entry, 592. -J 
 
 in dower, 592. ^ 
 
 non es pit in replevin, 593. 
 
 in assumpsit, 593. 
 
 non est factum, 593. 
 
 GENERAL REPUTATION. 
 
 not admissible to establish partnership, 250. 
 
 not admissible to establish agency, 250. 
 
 not admissible to establish who are officers of corporation, 250. 
 
 GIFT. 
 
 will not be presumed, 226. 
 
 GRANT. , 
 
 presumption of, after prescriptive period, conclusive, 170. I 
 
 presumed, when, 196-199. 
 
 GUARANTY. 
 
 parol evidence to show whether, is continuing, 46. 
 
 i 
 
 H. 
 
 HEARSAY. 
 
 general rule excluding, 246. 
 
 reason for rule, 247. 
 
 what is, 248. • 
 
 insolvency cannot be proved by, 248, n. 1. 
 
 fact that no other testimony can be had does not changfe rale, 246. 
 
 exceptions fo tho rule. 250. 
 
 understanding of witness not competent, 248. 
 
 notoriety in certain respects sometimes is, 248. 
 
 1
 
 INDEX. 801 
 
 HEARSAY— Continued. 
 general belief, 249. 
 
 value of property cannot be established by, 249. 
 letters written by party, 249. 
 as to what deceased pei-son said, 249. 
 
 as to what one partner told another as to price paid for goods, 249, 
 general reputation to establish partnership, 249. 
 admissible to prove public rights, 252-264. 
 instances in which such evidence has been rejected, 260. 
 admissible to prove historical facts, 262. 
 rights of public or general interest, 262. 
 
 ground on which declarations of deceased persons are admissible. 
 262, 263. 
 
 inadmissible to prove particular facts, unless, 289. 
 
 to prove pedigree and relationship, 265. 
 
 from what source should come, 266. 
 
 rule in this country, 267. 
 
 to prove marriage, 268. 
 
 to prove when child was born, 268. 
 
 not admissible to prove illegitimacy, when, 268. 
 
 to prove to whom a person was married, 268. 
 
 to prove what children a family had, 268 
 
 to prove whether they were legitimate or not, 268. 
 
 how pedigi-ee may be proved by, 265. 
 
 from what source evidence should come, 265. 
 
 rule in this country, 267. 
 
 old documents as proof of, 269. 
 
 inscriptions on tombstones, 269. 
 
 sjiecial verdicts, 269. 
 
 statement of pedigree in old wills, 269. 
 
 statement of pedigree in old bill in chancery, 269. 
 
 records of births, deaths and marriages kept by town, 269. 
 
 ex parte affidavits, 265. 
 
 depositions of deceased vdtness, 265. 
 
 inscriptions upon rings, 266. 
 
 charts hung up in family mansion, 266 
 
 coat of armor, 266. 
 
 mural inscriptions, 266. 
 
 entries in family bible, 271. 
 
 entries in almanac, 271. 
 
 entries in prayer-book, 271. 
 
 marriage certificate, 272. 
 
 pedigree hung up in family mansion, 272. 
 
 other methods of proving, 272. 
 
 declarations of what pei-sons are admissible upon question of, 275, 276. 
 
 essential elements of, 275. 
 
 essential elements of deceased persons, 273. 
 
 general reputation, 274. 
 
 to prove ancient possessions, 277-287. 
 
 as to private title, 287-291. 
 
 51
 
 802 INDEX. 
 
 HEARSAY — Continued. 
 
 perambulations, 291. 
 
 not admissible as to private title, 287-291. 
 
 to prove custom, 287, n. 6. 
 
 not admissible to prove particular fact unless, 289. 
 
 what not admissible to show that road is public, 290. 
 
 general, admissible to show incorporation of town, 303. 
 
 admissible to establish private boundaries, when, 305. 
 
 illustrations, 305-307. 
 
 declarations of deceased surveyors, 307-310. 
 
 declarations of deceased persons in a situation to know, 310-312. 
 
 when not admissible, 312-315. 
 
 declarations of owners, 315-320. 
 
 illustrations, 315, 320. 
 
 dying- declarations, 321. 
 
 old answers in suits, 260. See Poblic Rights. 
 HONESTY. 
 
 will be presumed, 228, 229. j 
 
 HUSBAND. rj 
 
 borrowing money on security of wife's property, presumptions as i| 
 
 to, 244. -i 
 
 I. 
 
 IDENTITY. 
 
 of name raises presumption of identity of person, 195. 
 
 ILLEGALITY. ? 
 
 of contract may be shown by parol, 77, 152, n. 3. ',\ 
 
 IMMOVABLES. ^ 
 
 what are, admitting parol, contents of, 7. ^ 
 
 rules as to, 7, n. 2. 
 
 INCIDENTAL RIGHTS. ■ 
 
 presumed to attach to ownership of lands, 239. jj 
 
 INDENTURE. ~ -^ 
 
 duplicate is original, when, 20. "'j 
 
 INDEPENDENT CONTRACT. B 
 
 may be shown by parol, 56-68. jj 
 
 what is, 57-68. "j 
 
 must not relate to same subject-matter, 57. ^ 
 
 rule when writing is merely intended as memorandum, 58-68. 
 collateral to deed, may be shown, when, 57, n. 2. 
 
 INDORSER. 
 
 admissions by, 521. 
 
 of note not bound by judgment against indorsee, unless, 745. 
 
 INDORSEMENT. 
 
 in blank, parol evidence admissible to annex qualifications to, when, 
 
 76, TO. 2. 
 of payment on note, effect of, 673.
 
 INDEX. 803 
 
 INFANCY. 
 
 of one of parties to contract may be shown, 80. 
 
 INFANT. 
 
 presumption that male is incapable of committing rape, conclusive 
 
 when, 171. 
 presumption that female under ten is incapable of consenting to 
 
 sexual intercourse, 171. 
 residing with parent, presimaed not to be emancipated, although of 
 
 age, 181. 
 must prove that he has attained majority, 182. 
 
 INNOCENCE. 
 
 presumption as to, 226, 229. 
 
 IN PERPETUAM. 
 
 deposition taken, only admissible when witness is shown to be dead, 4. 
 
 IN REM. 
 
 judgments in, eflfect of, 739-741. 
 what are judgments, 739, 740. 
 
 INSANITY. 
 
 once shown to exist will be presumed to continue, 225. 
 
 INSOLVENCY. 
 
 cannot be proved by hearsay, 248, n. 1. 
 may be by general reputation, 248, n. 1. 
 
 INSOLVENT DEBTOR. 
 
 record of discharge of, priincb facie evidence of notice to all the 
 creditors, 667. 
 
 INSPECTORS. 
 
 certificates of, 716, 717. 
 
 INSTRUMENT. 
 
 mutilated or destroyed, 658. 
 
 INTEREST. 
 
 persons presumed to act in accordance with, 236. 
 illustrations. 236, 237, 238. 
 
 INTERLINEATION. 
 
 in wi"iting will be presumed to have been made before execution, 
 
 236, also n. 3. 
 exceptions, 230-234. 
 
 INTERPRETER. 
 
 admissions made by, binding on person for whom he acts, 499. 
 
 INTOXICATED. 
 
 evidence admissible to show that party executing contract was, 80. 
 
 ISSUE. 
 
 person will not be presumed to have died without, 225. 
 party holding affirmative of, takes burden of proof, 653. 
 exceptions to the rule, 654.
 
 804 INDEX. 
 
 INVOICE. 
 
 of cargo evidence of value of, only, 669. 
 
 J. 
 
 JUDGE'S MINUTES. 
 
 of testimony of witness, not original evidence of, 4. 
 
 JUDGMENTS. 
 
 payment of, may always be proved by parol, 5. 
 
 cannot be impeached by parol, 106. 
 
 date cannot be contradicted, 106, w. 4. 
 
 hour of rendition of, may be shown, when, 106. 
 
 parties to, may be identified by parol, 106. 
 
 mistakes in, may be shown when, 106. 
 
 old, when admissible to establish public rights, 295-299. 
 
 when action is brought on, of anothei- state, how far courts will take 
 judicial notice of laws of, 629. 
 
 without notice, evidence of the debt when, 668. 
 
 how proved, 726, 727-731. 
 
 variance between, described, and the record effect of, 728. 
 
 when record of, is lost or destroyed, 729. 
 
 effect of plea of nul tiel record, 727, 728. 
 
 upon whom conclusive, 733. 
 
 only binding upon parties and their privies, 733. 
 
 instance in which not binding in other suits, 734, 735. 
 
 conclusive of facts recorded, 736. 
 
 not conclusive as to immaterial averment, 736. 
 
 effect of, 737. 
 
 general rules as to admissibility of, 738. 
 
 of court of concurrent jurisdiction, 738. 
 
 of court of exclusive jurisdiction, 738. 
 
 distinction between, of courts of exclusive and concurrent jurisdic- 
 tion, 739. 
 
 effect of, on collateral matters, 738. 
 
 in rem, effect of, 739. 
 
 what parties are bound by, 741-747. 
 
 illustrations, 142-141. 
 
 against principal, not evidence against surety, 744. 
 
 contrary rule under civil law, 743. 
 
 misnomer does not prevent conclusiveness of judgment against party, 
 when, 747. 
 
 in ejectment, effect of, 747. 
 
 rule as to effect of, between real and nominal parties, 746. 
 
 misnomer of party to judgment does not prevent use of, as evi- 
 dence against him, when, 747. 
 
 rule when parties are same, but they do not sue in the same right, 748. 
 
 Illustrations, 748, 749. 
 
 how far, concludes, 749. 
 
 reversal of, effect of, 749. 
 
 rule as to, when causes of action are the same, 750. m
 
 INDEX. 805 
 
 JUDGMENTS— CoTiiJTittecZ. 
 
 rule as to, when not, 750-752. 
 
 /See Hopkins v. Lee, 750. 
 bar to subsequent suit, when, 752. 
 by default, effect of, 752. 
 upon one of several securities growing out of the same transaction, 
 
 752. 
 conclusive between parties and privies, 752. 
 
 upon defense of usury, concludes any action upon same security, 753. 
 conclusive if court had jurisdiction, 753. 
 instances of, 753. 
 foreign, effect of, 754-761. 
 foreign, may be avoided, when, 761-777. 
 
 JUDGMENT-ROLLS. 
 
 secondard evidence of, admissible, when, 18, n. 3. 
 
 JUDGMENT-ROLL. 
 
 separate papers admissible, when, 729. 
 
 JUDICIAL EVIDENCE. 
 
 of what courts will take judicial notice, 614. 
 
 public statutes, 614. 
 
 private statutes, 618. 
 
 instances of matters of which courts will take judicial notice, 619-628. 
 
 matters of common experience, 628. 
 
 statute and common law of other states, 629. 
 
 JUDICIAL NOTICE. 
 
 of what, courts will take, 614. . 
 
 instances of, 619-628. 
 
 of customs, 619. 
 
 of the law merchant, 619. 
 
 commercial usages, 619. 
 
 of public history, when, 619, 622. 
 
 of the division of the state into tovnis, 620. 
 
 of who presides over executive departments of the government, 620. 
 
 of who are public officers of the state, and of changes therein, 620. 
 
 of who are judges of subordinate courts, 620. 
 
 of orders issued by competent military authority, 620. 
 
 "who are sheriffs, etc., 620. 
 
 who is clerk of the court, 621. 
 
 that a person is an attorney, and of the genuineness of his signature, 
 
 621. 
 of notarial certificates, 621. 
 of treaties with foreign countries, 621. 
 what is meant by "gift enterprise," 622. 
 of time when sun rises and sets, 622. 
 
 of days of week on which particular day of the month falls, 622. 
 that a particular date falls on Sunday, 622. 
 of its own judgment, when, 622. 
 the expiration of a bank charter, 622.
 
 806 INDEX. 
 
 JUDICIAL NOTICE— Conti7iued. 
 revenue districts, 622. 
 what official acts, etc., 622. 
 
 the repeal or suspension of a part of a public statute, 622. 
 the existence of a quasi public corporation, 623. 
 the history of the state, 623. 
 the topography of the state, 623. 
 the course of husbandry, 623, 
 the functions imposed by statutes on officers, 623. 
 common epithets, 623. 
 resignation, etc., of public officers, 623. 
 the jurisdiction of courts, state and national, 623. 
 the constitutions of other states, 623. 
 that public streets are public highways, 623. 
 navigability of streams, 623. 
 facilities for public travel, 623. 
 the great lines of public travel, 623. 
 the length of time required to cross the Atlantic, 624. 
 the terms of court in the state, 624. 
 the area of counties, 624. 
 what lands ai-e held by govei-nment, 624. 
 state boundaries, 624. 
 county boundaries, 624. 
 changes therein, 624. 
 what county a certain town is in, 624. 
 the courts will not take, of private statutes, 618. 
 numerous instances of matters of which, the courts will take, 624- 
 
 629, 634-637. 
 courts will take, of mattei-s of common experience, 628. 
 that certain provinces are in foreign country, 628. 
 whether government has recognized a foreign province or not, 628. 
 of wars in which the govei-nment is engaged, 628. 
 not of wars between foreign powers, 628. 
 not of articles of war, unless, 628. 
 of political divisions of the country, 628. 
 of the location of states, 628. 
 where principal rivers of the state are, etc., 628. 
 of geographical position of falls on public rivers, 629. 
 whether pilots are appointed for, 628. 
 that other states have constitutions, and of their conditions, 629. 
 
 JUDICIAL OFFICERS. 
 certified copies by, 712. 
 
 JUDICIAL RECORDS. 
 
 cannot be impeached by parol, 106. 
 
 of what, courts will take judicial notice, 633. 
 
 JURISDICTION. 
 
 of courts, presumptions as to, 205. 
 
 distinction between courts of concurrent and exclusive, 789.
 
 INDEX. 807 
 
 JUSTICE'S JUDGMENT. 
 
 what amounts to evidence of, 729, 730. 
 
 JUSTICE OF PEACE. 
 
 general hearsay admissible to prove that person was, 304. 
 
 L. 
 
 LAND. 
 
 fraud in sale of, may be proved by parol, 65. 
 
 contract for sale of, cannot be added to by parol, 66. 
 
 presumptions arising fi-om possession of, 177. 
 
 iEustrations, 177, 178, 179. 
 
 as to fee-simple, 178. 
 
 officers chai'ged with duties as to public, are presumed to have dis- 
 charged them, 226. 
 
 ownership of lands, raises presumption that usual privileges attach, 
 239. 
 
 LAND OFFICERS. 
 
 certificates of, 717. 
 
 LAND OFFICE RECORDS, 
 of state, how proved, 723. 
 of United States, 722. 
 
 LARCENY. 
 
 in trial for, of papers, notice to produce,'not necessary, 27. 
 
 LATENT AMBIGUITY. 
 
 in contract, may be explained by parol, 37. . 
 illustrations, 38-48. 
 
 LAW. 
 
 violation of, will not be presumed, 229. 
 
 LEASE. 
 
 occupancy of tenant under, may be proved by parol, 6. 
 
 terms of, must be proved by lease itself, 6. 
 
 warranty that premises are tenantable cannot be shown by parol, 93. 
 
 agreement and repairs, 93. 
 
 agreement to make up deficiencies in furniture, 94. 
 
 parol evidence not admissible to explain term of, 110-124. 
 
 to apply to subject-matter, 112, 113. 
 
 not to show that other premises were included, 110. 
 
 to aflTect amount of rent, 110, 111. 
 
 to show that landlord represented premises to be tenantable, 
 110, n.U. 
 
 that assignee of, agreed to pay accnied rent, 110, n. 11. 
 
 that rent was to be apportioned. 111. . 
 
 that rent was to be paid at a different time from that named in, 
 111. 
 
 to show that lease was to commence at a later date, 111. 
 
 that tenant was to pay taxes, 111. 
 
 that other privileges were to be given. 111. 
 
 that landlord agreed to repair, 112, n. 1.
 
 808 INDEX. 
 
 LEASE — Continued. 
 
 when parol evidence is admissible to effect, 112-124. 
 wben language of, is illegible, i-ule, 115. 
 what may be resorted to in construction of, 115-124. 
 surrounding circumstances may be shown to show what is covered 
 by, when, 115, IIG. 
 
 See Shore v. Wilson, 116. 
 ambiguity in, created by proof, rule, 117-121. 
 may be shown to have been made for benefit of another, 121. 
 customary rights may be shown, 122. 
 more than thirty years old prove themselves, 281. 
 execution of, how may be proved, 281. 
 corresponding with one referred to in pleadings, 281. 
 
 LEGISLATIVE JOURNAL. 
 
 contents of, how proved, 7. 
 how used as proof, 675. 
 efTect of, 675-677. 
 
 LEGITIMACY. 
 
 presumption of, conclusive, when, 171. 
 
 declarations of deceased person as to his own, admissible, 275. 
 declarations of mother as to non-access of husband not admissible, 275. 
 declarations of husband as to legitimacy of his wife, 276. 
 declarations of wife as to her husband's family, 276. 
 
 LETTERS. 
 
 contents of, not provable by parol, 9. 
 
 notice to produce, not necessary, when, 27, n. 1. 
 
 written by party not admissible for him, 487. 
 
 written by agent, 489. 
 
 admissible against party, as admissions, 492. 
 
 LETTERPRESS COPIES. 
 
 not admissible unless, 12, n. 3. 
 
 LEVY. 
 
 of execution presumed, when, 227. 
 
 LIBEL. 
 
 written on wall proved, how, 8. 
 
 in actions for, plaintiff only required in first instance to prove speak- 
 ing of the words, 193. 
 
 LICENSE. 
 
 person having, must show compliance with the law, 654, 655. 
 
 LIEN. 
 
 once attached, rule as to, 649. 
 
 LIFE INSURANCE. 
 
 in action upon policy of, burden of proof, 660. 
 
 LIS MOTA. 
 
 applied, when, 262-264.
 
 INDEX. 809 
 
 LOG-BOOK. 
 
 entry in, effect of, 667. 
 
 LOSS OF PAPERS. 
 
 must be shown to admit secondary evidence of, 13. 
 by fraud of party, eflect of, 13, 14. 
 voluntarily destroyed, effect of, 13. 
 
 LOST NOTE. 
 
 burden of proof, 658. 
 
 contents of, may be proved by parol, when, 12-15. 
 
 voluntarily destroyed, 13. 
 
 fraudulently destroyed, 13, 14. 
 
 loss established how, 15-18. 
 
 rule when former existence of, is admitted, 658. 
 
 LUNA.TIC. 
 
 evidence admissible that party to contract was, 80. 
 
 M. 
 
 MAIL. 
 
 presumption as to delivery of letters sent by, 222, 223. 
 
 MALICIOUS PROSECUTION. 
 
 burden of proving want of probable cause upon the plaintiff, 652. 
 
 MANIFEST. 
 
 examined copy of, evidence, 723. 
 
 MANORIAL CUSTOMS. 
 
 hearsay to establish, 256. 
 
 MANUSCRIPT. 
 
 printed copy of, not admissible in place of, unless, 12< 
 
 MAPS. 
 
 must be produced, 9. 
 
 old, annexed to deed, 279, 282. 
 
 relating- to private boundaries, 293. 
 
 to establish, ete., public rights, 293, 294. 
 
 annexed to deed admissible, 294. 
 
 admissible, when, 293-295. 
 
 MARRIAGE. 
 
 may be proved by evidence of cohabition, 268. 
 
 declarations of parents admissible to prove legitimacy of children, 268. 
 
 shown once to have existed, will be presumed to continue, 180. 
 
 MARRIAGE CERTIFICATE, 
 to prove pedigree, 272. 
 
 MARINE PROTESTS AND SURVEYS, 
 rules as to, 715. 
 
 MEMORANDA. 
 
 not generally admissible, 357. 
 
 witness may use, to refresh his memory, 357, n. 1.
 
 810 INDEX. 
 
 MEUORANDh.— Continued. 
 "check slips," 357, n. 1. 
 
 certificate of examination by physician for life insurance, 357, n. 1. 
 private, in pass-book, 357, n. 1. 
 newspaper account of what person said, 357, n. 1. 
 written, made by officer in course of duty, 358, n. 2. 
 made in pencil on official register, 358, n. 1. 
 books kept by officials, when, 358, 7i. 1. 
 entries on bill of lading, when, 358, n. 1. 
 by bank messengers, notaries, etc., 358, also n. 1. 
 made in books kept by deceased sheriff, 358. 
 made by deputy surveyors, 358. 
 made by living person, may be used by him to refresh his memory, 
 
 358, 359, 71. 1 ; 361, n. 2. 
 witness may refer to account-books, cash-books, letters, etc., 360. 
 copy of, may be used, when, 360, 361-366. 
 instances of, 360, 361. 
 what must generally be shown to entitle witness to use, 360, n. 3 ; 
 
 361, 71. 2. 
 rule as to use of, by witness, in New York, 361. 
 need not have been made by witness, 364, n. 
 when may be used, though witness has no independent recollection 
 
 of, 364, 71. 2 ; 368-370. 
 generally, should be made by witness, 366, 367. 
 
 ^ee Gilchrist v. Brooklyn, etc., Ass'n, 366, n. 2. 
 exceptions, 366. - 
 
 may be used when contents of, are not admissible, 367. * 
 
 stenographer's notes, 367. '\ 
 
 itself, only admissible when, 371. 
 how may be used as evidence, 357-366. 
 should be made by witness, 366. 
 
 may be used to refresh memory, although its contents are not admis- 
 sible, 367. 
 independent recollections not essential, 368. 
 when opposite party is entitled to see, 370. 
 itself, only admissible, when, 371. 
 in which person can have no interest to falsify, 372. 
 minutes of testimony of deceased person, 372. 
 
 MEMORANDUM. 
 
 by auctioneers, original must be produced, 2. 
 of agreement may be explained, etc., by parol, when, 58-68. 
 is evidence of contract as far as it goes, but does not exclude parol 
 proof, when, 64, 65. 
 
 MESSAGES. See Telegrams. 
 
 MINING CUSTOM. 
 
 hearsay to establish, 256. 
 
 MINOR. 
 
 presumed to be under control of parent, 226.
 
 INDEX. 811 
 
 MINUTE-BO©K. 
 
 of clerk not admissible, when, 727. 
 
 MORTGAGES. 
 
 contents of, not provable by parol, 9. 
 
 assignment of, may be shown to have been intended merely as secu- 
 rity, 95. 
 
 extinguished by conveyance of equity of redemption to mortgagee, 
 when, 237, 238. 
 
 alteration in, effect of, 649. 
 
 evidence of title in mortgagee, when, 670. 
 
 MORTGAGEE. 
 
 conveyance of equity of redemption to, extinguishes mortgage, when, 
 237, 238. 
 
 MUNICIPAL CORPORATIONS. 
 
 records and books of, admissible, 383, 384-389. 
 evidence to show assessment. 384. 
 evidence as to property of, 384. 
 books of, admissible for or against it, 383-389. 
 See Denning v. Rome, 384. 
 tax-books of, 384. 
 books admissible to establish title to property of, 384, 385. 
 
 to justify acts of officers, 385. 
 
 erroneous record of, may be amended, how, 386. 
 
 must come from proper custody, 386. 
 evidence of acts of officers, 385. 
 ancient books of, 385. 
 town records, 385. 
 proprietor's book, 385. 
 of appointment of officers, 386. 
 charters of, public acts, 618. 
 by-laws of, not, 618. 
 formed under general law, rule, 618. 
 acceptance of charter by, 618. 
 
 MURAL INSCRIPTIONS, 
 to prove pedigree, 266. 
 
 N. 
 
 NEGLIGENCE. 
 
 presumptions as to, 192. 
 
 in service of process, burden of proof on whom, 652. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 admissions by parties to, 516-521. 
 admissions by indorser, 521. 
 admissions by a former owner, 522. 
 
 NOMINAL PARTY. 
 
 effect of judgment against, upon real party, 746, 747.
 
 812 INDEX. 
 
 NOMINAL PLAINTIFF. 
 admissions by, 51(5, 503. 
 
 NONSUIT. 
 
 party becoming, effect of notice on, to i^roduce paper, 31. 
 
 NOTARIES. 
 
 certificates of, 713. 
 
 NOTARY PUBLIC. 
 
 entries made by, 348, n. 2 ; 354, 374. 
 
 NOTE. 
 
 payable on demand, parol proof not admissible to show agreement to 
 
 pay at particular time, 53. 
 date of assignment of, itrima facie evidence of time of, 656. 
 lost, burden of proof, 658. 
 
 NOTICE. 
 
 served in writing, may be proved by parol, when, 5, 6, n. 1. 
 
 contents of written, cannot be shown by parol, 6, n. 1. 
 
 to adverse party to produce paper necessary, when, 23. 
 
 how should be given, 24. 
 
 sufficiency of, 24. 
 
 on whom may be served, 24-26, 30, 31. 
 
 what should contain, 25, 26. 
 
 when unnecessary, 26, 28. 
 
 effect of, 28-31. 
 
 to produce a notice not necessary, 27, n. 2. 
 
 to produce letters not necessary, when, 27, n. 1. 
 
 to produce paper, does not necessarily make it admissible, 28. 
 
 dispenses with proof of execution of paper, when, 28. 
 
 what must be shown to let in secondary evidence of contents of paper 
 
 under, 30. 
 party refusing to produce paper, effect of, on his i-ight to use, 30. 
 presumption of, to parties to suit, conclusive, when, 171. 
 record of discharge of insolvent debtor, prima facie proof of notice to 
 
 all the creditors, 667. 
 
 NOTICE TO QUIT. 
 
 given in writing, may be proved by parol without notice to pro- 
 duce, 27. 
 
 0. 
 
 OFFICE COPY. 
 
 what is, 33, 693. 
 
 OFFICERS. 
 
 appointment of, presumed when, 15, n. 2. 
 
 presumptions as to regularity of appointment of, 206-212. 
 
 acting as, evidence of official character, 304. 
 
 general reputation admissible to prove that a person is an, 304. 
 
 instances of, 304. 
 
 ^ee Porter v. Luther, 304.
 
 INDEX. 8 IS 
 
 OFFICIAL ACTS. 
 
 presumptions as to, 202-205. 
 
 presumptions arising' from, 202-205. 
 
 as proof of, official (capacity, 202-205. 
 
 rules as to eifect of, to prove election or appointment, 211. 
 
 OFFICIAL CHARACTER, 
 may be proved by parol, 6. 
 how proved, H. 
 
 OFFICIAL MISCONDUCT, 
 never presumed, 652. 
 
 OFFICIAL SALES. 
 
 presumptions as to, 212, 213. 
 
 OMNIA PRiESUMUNTUR RECTE ESSE ACTA, 
 rules as to, 202, 226-228, 242, 243. 
 
 OPINION. 
 
 not sufficient as an admission, 497. 
 
 mere expression of, does not amount to false representation, 651. 
 
 ORDERS. 
 
 decrees, etc., as evidence of public right, 299. 
 
 ORIGINALS. 
 
 of contracts, etc., must be produced, when, 1-14. 
 
 what, must be produced, 3. 
 
 special cases to which rule as to, applies, 3. 
 
 P. 
 
 PAPERS. 
 
 beyond jurisdiction, contents may be proved by copy or parol, 14, n. 5. 
 
 when production of, is physically impossible, 14. 
 
 in hands of opposite party, 14. 
 
 in possession, person, 15. 
 
 when presumption of facts which writing could be used to sustain, 15. 
 
 when question arises on voir dire, 15. 
 
 when papers are voluminous, and general results only desirable, 15. 
 
 must be shown to have once existed, 15. 
 
 burden of showing loss of, on party seeking to use, 18, n. 3. 
 
 execution of lost, must be proved, 16. 
 
 genuineness of, must be established, 16. 
 
 loss of, 16, 17. 
 
 attested, how execution of, should be proved, 16, n. 2. 
 
 fraudulent intent in destruction of, determined by the court, 17, n. 1. 
 
 motive of party in destroying, controls, 17. 
 
 when loss or destruction of, is probable, rule, 18. 
 
 what search for, is sufficient, 18. 
 
 rule as to records, judgment-rolls, etc., 18, n. 3. 
 
 search for, what must be made, 18-23. 
 
 in custody of party or third person, rule as to, 18, n. 4. 
 
 executed in duplicate, each part original, when, 20.
 
 814 INDEX. 
 
 PAPERS— Co?i«i«?icd. 
 
 in possession of, adverse party, rule as to, 23-26. 
 notice to produce necessary, when, 23. iSee Notiob. 
 not made evidence by notice to produce, 28. 
 notice to produce, not necessary, when, 26-28. 
 effect of notice to produce, 28. 
 in waiver for, notice to produce, unnecessary, 27. 
 contents of, how may be proved when lost or party refuses to pro- 
 duce, 31-34. 
 
 PAROCHIAL RIGHTS. 
 
 hearsay to establish, 256. 
 
 PAROL EVIDENCE. 
 
 as to contents of written instruments, admissible, when, 3. 
 
 of payment, admissible, though evidence by writing, 3. 
 
 when written communications attended by verbal one, 3. 
 
 of demand, admissible, although also made in writing, 3. 
 
 to show what witness testified to on former trial, 4. , 
 
 of payment of contracts, 5. ■ 
 
 of payment of judgments, 5. 
 
 of appointment of agent, 5. 
 
 of birth, 5. 
 
 of marriage, 5. 
 
 of death, 5. 
 
 rule when writing is merely narrative of extrinsic matters, 5. 
 
 receipt given for money paid, does not exclude, 5. 
 
 to show official character of person taking acknowledgment of deed, 
 
 etc., G. 
 to show time of arrival of railway trains run on schedule time, 6. 
 to show notice when written notice was given, Q, n.l. 
 ground on which rule rests, 6, n. 1. 
 of facts in registry books, 5. 
 of collateral facts recorded, 5, n. 5. 
 
 partnership under written article may be proved by, 6. 
 of occupancy of tenant under lease when lease is in writing, 6. 
 not, to prove duration or terms of tenancy, 6. 
 nor under whom tenant occupied, 6. 
 admissible to show port of destination of a ship, 6. 
 to prove inscriptions on immovable things, 7. 
 as on tombstones, 7. 
 walls, 7. 
 boards, etc., 7. 
 surveyor's marks on trees, 7. 
 what books, etc., are treated as immovables, 7. 
 not admissible to prove contents of warrants, 9. 
 executions, 9. 
 returns on executions, 9. 
 bills of sale, 9. 
 subsciiptions to stock, 9 
 letters of administration, 9.
 
 INDEX. 815 
 
 PAROL BYIDBNCB— Continued. 
 
 maps, 9. 
 
 records, 9. 
 
 deeds, 9. 
 
 letters, 9. 
 
 telegi'ams, 9. 
 
 receipts, 9. 
 
 mortg-ages, 9. 
 
 of contract between parties to deed, 10, n. 
 
 copies of writings treated as, when, 11. 
 
 of contents of winting may be given, when, 12-15. 
 
 what must be shown to admit, 15-18. 
 
 general rule as to, when offered to explain writings, 36. 
 
 statute of frauds excludes, when, 36. 
 
 verbal agreement different from written, cannot be sho^\T^, 38. 
 
 usage admissible to show meaning of word in, when, 38-46. See 
 WoKDS AND Phrases. 
 
 admissions of jiarties not admissible to vary writing, 38. * 
 
 questions to be solved when offered to explain writings, 37. 
 
 not admissible to show different contract was intended, 37, 38, n. 
 
 admissible to show meaning of word in contract, when, 38. 
 
 acts of parties, not admissible to vary writing, 38. 
 
 admissible to identify and apply contract to subject-matter, when, 42. 
 
 illustrations, 42, 7i. 2. 
 
 to identify the parties to, 43. 
 
 to show that payee of note is not real party in interest, 43. 
 
 to show to whom credit was given under written contract, 43. 
 
 to show that party signing note was agent, 43. 
 
 to show that money deposited by guardian, certificate in his name, 
 belonged to his ward, 44. 
 
 to show who was intended to be bound under bill signed by "A. B. 
 Captain," 43. 
 
 that paper signed ''J. H., President," was for benefit of corpora- 
 tion, 43. 
 
 to explain meaning of writing when deficient in punctuation, 44, 7i. 6. 
 
 that Elias and Eli, mean the same person, 44. 
 
 admissible to explain contract, when, 44, 45. 
 
 not admissible when words have well defined meaning, 45. 
 
 rule as to, when meaning of words is not perspicuous, 45. 
 
 to show whether guaranty is continuing, 46. 
 
 to show whether bill accepted by officer of corporation addressed to 
 him individually was intended to bind corporation, 46. 
 
 when ambiguity is raised by extrinsic proof, 46, 
 
 to explain ambiguities in wills, 47, 48, 49. 
 
 by surrounding circumstances to explain will, when, 49. 
 
 when ambiguity is patent, 50, 52. 
 
 blanks left in, 50. 
 
 when legatees are designated by initials, 50. 
 
 as to ambiguity in contract, raised by extrinsic proof, court should 
 construe, 50.
 
 81G INDEX. 
 
 PAROL EVIDENCE— CoH^wmec?. 
 
 to fill blanks in contracts or \vritinf,''s, HI, 53, n. 2. 
 to explain imperfect contracts, when, 51. 
 to apply writing to subject-matter, 51. 
 to show what lease was intended to embrace, when, 52. 
 to show what was intended to pass by contract, when, 52. 
 not admissible to fill blanks in official certificate, 53, n. 2, 
 to alter legal effect of written contract, 55. 
 to show time of payment for goods sold, 55. 
 to show that different quality of goods were intended, 55. 
 to show different time for performance of contract from that 
 named, 55. 
 
 wi'itings cannot be explained by, when, 53-55. 
 
 illustrations, 53-55. 
 
 not to show warranty in respect to matters as to which contract is 
 silent, 54. 
 
 not admissible to show that absolute sale was intended to be con- 
 • ditional, 55. 
 
 rule when contract is not complete, 56. 
 
 rule as to indejiendent contracts, 56-68. 
 
 to supply apparent deficiencies in contract, 56-68. 
 
 admissible to supi^ly iapparent defects in contracts when, 58-68. 
 
 admissible to general rule as to incomplete contracts, 59. 
 
 to show time of delivery of goods sold admissible, when, 59. 
 
 to show parol agreement to overcome presumption, when, etc., 60-68. 
 
 admissible to show fraud in i^rocuring contract, 63. 
 
 not admissible to show warranty, when, 64. 
 
 to vary terms of sale, 64. 
 
 improperly admitted must give way to the written contract, 65. 
 
 when writing is apparently complete, not admissible, 65-67, 
 See Fitch v. Woodruff Iron Works, 65. 
 
 not admissible to show contemporaneous agreement inconsistent with 
 written contract, 68. 
 
 illustrations, 68. 
 
 may be used to explain receipts, 68-70. 
 
 not to explain receipts when, 69-72. 
 
 admissible to explain and apply writing, when, 72. 
 
 of surrounding circumstances, admissible when, 72-74. 
 
 of independent and collateral facts, 73. 
 
 to prove collateral matters, 74-77. 
 
 of interpretation parties put upon the contract, 73, also n. 2. 
 
 to prove collateral matters, 14-11. 
 
 illustrations, 75-77. 
 
 to show consideration or want of, in writing when, 74. 
 
 to apply contract to subject-matter, 73, n. 3 ; 75. 
 
 to show reservation of growing crop by grantor, 75. 
 
 to show that articles not fixtures were included in sale of premises, 75. 
 
 to show that grantor is to pay for improvements, 77. 
 
 of waiver of demand and notice may be shown, when, 76. 
 
 of special contractt l)y jiayee of note on indorsement, not admissible, 76.
 
 INDEX. 817 
 
 PAROL EVIDENCE— Co7ifi7mecZ. 
 
 of agreement that indorsers should not be liable, 77. 
 
 to show fraud, 77. 
 
 illegality, 77. 
 
 duress, 77. 
 
 to show that party to contract was an infant, 80. 
 
 to show that party to contract was intoxicated, 80. 
 
 a feme covert, 80. 
 
 a lunatic, 80. 
 
 that deed was delivered in escrow, 80. 
 
 that surety signed with agreement that other should also sign, 81. 
 
 failure of consideration, 81 . 
 
 to secure reformation of contract, 83-88. 
 
 admissible to show mistake in writing, when, 83-88. 
 
 to show ground for rescission of contract, 86. 
 
 to show abandonment of contract, 88. 
 
 to show substitution of new terms in contract, 88. 
 
 to show discharge of contract, 88, 90. 
 
 enlargement of time for performance of, 89. 
 
 illustrations, 89. 
 
 not admissible to show warranty, when, 90-95. 
 
 to show that writing apparently absolute, is not so, 95-99. 
 
 may be given of contract relating to collateral matter, as inducement 
 
 to obtain the execution of contract, 99-101. 
 illustrations, 99-101. 
 
 judicial i-ecords cannot be impeached by, 106. 
 admissible to explain assignments, when, 107. 
 bills of lading, 108. 
 bills of sale, 109. 
 leases, 110-124. 
 of customary rights, 122. 
 of custom and usage of the country, 122. 
 of usage, 124-167. See Usage. 
 
 PARTIES. 
 
 what, are bound by judgment, 741, n. 2. 
 
 illustrations, 142-141. 
 
 judgment against, as partners not admissible to establish partnersliip, 
 
 when, 742, 743. 
 rule as to effect of judgment in reference to real and nominal, 746. 
 when parties are same, but do not sue in the same right, 748. 
 
 PARTNERSHIP. 
 
 under written articles may be proved by parol, when, 6. 
 cannot be established by general reputation, 250. 
 
 PARTY. 
 
 failing to produce paper under notice, precluded from using as evi- 
 dence, when, 30. 
 notice to produce papers, may be served on third person, when, 31. 
 -f^ notice to produce paper in hands of third person sufficient, when, 31. 
 
 52
 
 818 INDEX. 
 
 PART Y — CoHt inued . 
 
 putting- papei- out of his possession after notice to produce, 31. 
 
 effect of nonsuit on notice to proiluce, 31. 
 
 when subpoena, duces tecum vn third person is necessary,,31. 
 
 silence of, operates as implieil admission, when, 498-501. 
 
 must have heard the statement, 498. 
 
 must have known the truth, 499. 
 
 bound to deny statements made in his presence when they naturally 
 
 call for a reply, 499. 
 admissions by, after his interest ceased, 501. 
 
 PASS-BOOKS. 
 
 of bank, admissible when and for what, 377. 
 
 PATENT. 
 
 from state, presumption as to seal, etc., 241. 
 
 PATENT AMBIGUITY. 
 
 what \fif rules as to, 50, 52. 
 
 PATENTS. 
 
 for inventions, how proved, 689. 
 for lands, 689. 
 
 PAUPER. 
 
 town seeking to settle upon another, takes burden of proof, 652, 656. 
 
 PAYMENT. 
 
 parol evidence of, admissible, although written evidence exists, 3, 5. 
 
 of judgments, may be proved by parol, 5. 
 
 of contracts, 5. 
 
 not presumed, except, 213. 
 
 who bound to establish fact of, 213. 
 
 pecuniary condition of parties does not alone raise presumption 
 
 of, 213. 
 presumption from lapse of twenty years, 213-220. 
 force of presumption, 214. 
 how may be rebutted, 214, 215, n. 9 ; 220. 
 presumption as to, when debt is payable by installments, 215. 
 effect of disability of the debtor, upon the presumption, 215. 
 when presumption of, arises from lapse of less than twenty years, 
 
 216-220. 
 presumptions as to, 213-220. 
 raises presumption of debt, 226. 
 
 PEDIGREE. 
 
 how may be proved, 265. 
 
 evidence should come from undoubted source, 266. 
 
 rule in this country, 267. 
 
 old documents admissible to prove, 269. 
 
 inscriptions on tombstones, 269. 
 
 findings of a special verdict between other members of the family, 269. 
 
 statement of, in an old bill in equity, 269. 
 
 statements in old wills, 269.
 
 INDEX. 819 
 
 PEDIGREE— Co?iit?med. 
 
 records of births, marriages, etc., kept by the town, 269. 
 
 ex parte affidavits taken abroad, 265. 
 
 depositions of deceased witness, 265. 
 
 inscriptions upon rings, 266. 
 
 charts of, hung up in family mansion, 266. 
 
 coat of armor, 266. 
 
 mural inscriptions, 266. 
 
 such evidence open to impeachment, 270. 
 
 entries in family bible, 271. 
 
 entries in almanac, 271. 
 
 entries in prayer-book, 271. 
 
 marriage certificate, 272. 
 
 pedigree hung up in family mansion, 272. 
 
 other methods of jiroving, 272. 
 
 declarations of deceased persons to prove, 273, 274. 
 
 general repvitation as proof of, 274. 
 
 hearsay, of what persons admissible to prove, 275-276« 
 
 essential elements of, 275. 
 
 PERAMBULATIONS. 
 
 admissible, when, 291. 
 
 PERSONAL PROPERTY. 
 
 transfer of, may be shown to be conditional, 95, 96. 
 
 POSSESSION. 
 
 of lands, presumptions arising from, 177. 
 
 in ejectment, presum^jtion, 178. 
 
 must be actual, 178, n. 2. 
 
 length of determines value of, 179. 
 
 of personal property, evidence of title, 666. 
 
 of lands, rule, 666. 
 
 adverse, rule, 666. 
 
 no presumption from, when, 667. 
 
 of property, evidence of title, 666. 
 
 POSSESSORY TITLE. 
 
 burden of establishing, upon party claiming, 666. 
 
 PRAYER-BOOK. 
 
 entries in, to jirove pedigree, 271. 
 
 PRESUMPTION. 
 
 non-production of papers under notice, what is, 29, n. 2 ; 30. 
 
 as to time of payment, delivery, etc., may be overcome by proof of 
 
 parol agi-eement, when, 59-68. 
 kinds of, 169. 
 of law, what are, 169. 
 conclusive, what are, 170. 
 after lapse of certain period that executors, etc., have conformed to 
 
 the law, 172. 
 estoppels as, 173.
 
 S20 INDEX. 
 
 PRESUMPTION— Cb?j<i»M€d. 
 disputable, 177. 
 
 arising- from i)ossession of lands, 177-179. 
 as to title to personal projjerty from ijossession, 179. 
 as to continuance of fact, 180-184, 224, 225. 
 illustrations, 180-184. 
 
 as to pei-sons remaining of same opinion, 182. 
 as to death. 18l\ 184. 
 of death, how raised, 184-186. 
 as to survivorship, 186-189. 
 as to shi})s not heard from, 189. 
 as to accounts, 190. 
 as to ag-ency, 191. 
 as to cari'iei-s, 192. 
 negligence, 192. 
 character, 193. 
 fraud, 194. 
 damages, 194. 
 identity. 195. 
 abandonment, 195. 
 of a grant, 196-199. 
 of a conveyance, 199-202. 
 as to official acts, 202-205. 
 as to jurisdiction of courts, 205. 
 as to regularity of appointment of officers, 206-212. 
 as to official sales, 212. 
 payment. 213-220. 
 title, 220-22-2. 
 miscellaneous, 222-245. 
 illustrations, 222-245. 
 arising from incidents of property, 239. 
 arising fi-om dictates of prudence and discretion, 240. 
 as to laws of another state or country, 629. 
 that contract without alterations expresses intention of parties, 646, 
 
 649. 
 as to alterations of official documents, 649. 
 as to correct administration of trust, 651. 
 as to title to personal property, 666. 
 rule when possession is with consent of owner, 666. 
 rule when possession is in several persons, 666. 
 never arises as to title from possession, unless, 667. 
 certificate of, effect of, 668. 
 from execution of papers, 673. 
 
 that person in jui-ed hy carrier was passenger for hire, 649, 650. 
 that officer discharges his duty, 652. 
 of innocence must he overcome, S^3. 
 that seizin of property continues, 656. 
 in case of possessory title. 666, 667. 
 of death from grant of administration, 667. 
 prima facie evidence of title, 668.
 
 INDEX. 821 
 
 PRESUMPTION OF CONVEYANCE, 
 when and from what raised, 199-201. 
 
 PRESUMPTION OF GRANT. 
 
 rules as to, 196-199. 
 of conveyance, 199. 
 
 See Beauland v. Hurst, 200, n. 3. 
 
 PRESUMPTIONS OF LAW. 
 
 what are, 169. 
 
 PRIMA FACIE. 
 
 evidence, what is, 665. 
 effect of, 665-670. 
 illustrations, 665-670. 
 receipts, 670-673. 
 
 PRIMARY EVIDENCE, 
 what is, 1-34. 
 
 party bound to produce, 1-34. 
 written contracts, 1,2. 
 memorandum of auctioneer, 2. 
 non-production of, when excused, 2. 
 telegraphic message, 2. 
 rules as to, in reference to merely collateral matters, 4. 
 
 PRINCIPAL. 
 
 presumption that was possessed of knowledge of agent, conclusive 
 when, 171. 
 
 PRIVATE BOUNDARIES. 
 
 hearsay admissible to establish, when, 305-307. 
 
 PRIVATE STATUTES, 
 must be proved, 618. 
 
 by-laws of municipal corporations are, 618. 
 charters of private corporations are, 618. 
 what are, 618. 
 municipal charters not, 618. 
 municipal by-laws are, 618. 
 preamble to, evidence of facts recited in, 679. 
 must be proved, 680. 
 
 PRIVIES. 
 
 who are, 733. 
 
 by blood, 733. 
 
 by representation, 733. 
 
 by estate, 733. 
 
 by contract, 733. 
 
 by contract and estate, 733. 
 
 PRIVILIGES. 
 
 other than those named in lease, cannot be shown to have been 
 given. 111.
 
 822 INDEX. 
 
 PRIVITY. 
 
 none between executor and administrator, de bonis non, 734. 
 none between executor or administrator, and heir or devisee of land, 
 734. 
 
 PROMISSORY NOTES. 
 
 interlineation in, i-ule as to, 230. 
 
 PROPERTY. 
 
 shown to have belonged to a person before his death, presumption as 
 to, 182. 
 
 "PROTEST WAIVED." 
 
 indorsed on note by payee does not preclude proof that note was 
 forged, when, 73, n. 1. 
 
 PUBLIC RIGHTS. 
 
 hearsay admissible to establish, 252-264. 
 
 meaning of terms "public " and " general," 252. 
 
 distinction as to, 252. 
 
 ground upon which admitted, 252. 
 
 meaning of terms public and general, 252, 253. 
 
 distinction between, 253. 
 
 illustrations, 253, 254. 
 
 when independent proof is not rsquired, 255. 
 
 illustrations, 255, 256. 
 
 instances in which this class of evidence has been admitted upon the- 
 
 gi'ound that public or general interests were invalid, 256-260. 
 instances in which such evidence has been rejected, 260-266 
 when independent proof is not required, 255 
 application of the rule, 256. 
 
 instances in which such evidence has been rejected, 260. 
 competent knowledge, necessary, 255. 
 
 rule when the quality of the hearsay raises inference that it was de- 
 rived from persons having knowledge, 255. 
 unsigned documents, 255. 
 hearsay has been admitted to establish rights of common, 258. 
 
 parochial rights, 256. 
 
 manorial custom, 256. 
 
 mining custom, 256. 
 
 the limits of a town, 256. 
 
 the custom of a corporation, 256. 
 
 boundaries between counties, parishes, etc., 256. 
 
 boundaries between old and new land, 256. 
 
 a claim of toll, 256. 
 
 whether road is public or private, 256. 
 
 presumptive liability to repair sea walls, 256. 
 
 to repair bridges 256. 
 
 claim of highway, 256. 
 old verdicts, judgments, decrees, etc., as evidence of, 295-299, 
 a right of ferry, 256. 
 ■whether land is public landing place, 257. 
 
 I 
 
 i 
 
 1
 
 INDEX. ^^^ 
 
 PUBLIC RlG'RT8—Co7itinued. 
 jurisdiction of court, etc., 257. 
 rights by immemorial custom, 257. 
 old maps admissible, when, 257. 
 paper signed at public meeting declaring a road not to be a public 
 
 way, 258. 
 reputation admissible, when tradition is not, 258. 
 reputation to prove existence of a manor, 259. 
 
 PUBLIC STATUTES. 
 
 courts will take judicial notice of, 614. 
 list for determining what are, 616. 
 
 PUNCTUATION. 
 
 writing deficient in, may be explained by parol, when, 44, n. 6. 
 
 Q. 
 
 QUI TAM. 
 
 action, burden of proof in, 656, 657. 
 
 R. 
 
 RAILWAY TRAINS. 
 
 , run on schedule time, time when due at station may be shown by 
 
 parol, 6. 
 
 RAPE 
 
 presumption that certain infants are incapable of committing, 171. 
 
 REASONABLE DOUBT, 
 what is, 657, 659. 
 
 RECEIPT. 
 
 given for money paid, does not exclude parol proof of payment, 5. 
 contents of, not provable by parol, 9. 
 may be explained by parol, when, 68. 
 under seal, rule as to, 69, n., also n. 1. 
 when not, 69-72. 
 
 eflfect of, 69. ^ e nn 
 
 given to sheriff for property attached, not open to parol proot, 70. 
 recital of value of property, is not conclusive, 71. 
 used collaterally, rule, 71. 
 how far conclusive as to title, 71. 
 
 for one purpose, cannot be shown to be for another, 72. 
 
 given by deceased creditor, effect of, 351. 
 
 prima facie evidence of all it purports to be, 667. 
 
 open to rebuttal, when, 670-673. 
 
 presumptions as to, 670. 
 
 may be shown to have been obtained by fraud, 670. 
 
 duress, 672. 
 
 mistakes in, 671. 
 
 in full, may be shown not to be, 671. 
 
 prima facie, eflFect of, 673. 
 
 under seal, effect of, 672.
 
 824 " INDEX. 
 
 RECEIPT— Continued. 
 
 for unliquidated damages, conclusive, 672. 
 
 in full for property value of, which is not fixed, 672. 
 
 in full, eftect of, 673. 
 
 RECITALS. 
 
 in old deeds, evidence of title, when, 073. 
 
 RECORD. 
 
 of collateral facts, not orij^inul evidence, 5, also n. 5. 
 
 of payment of judgment, does not exclude parol evidence of, 5. 
 
 contents of, not provable by parol, 9. 
 
 admissions of parties to, how far dispenses with wi'iting, 10, 11. 
 
 of writings, but evidence, when, 10. 
 
 of meetings of corporations not required by law to be recorded, 10. 
 
 admission of parties to, effect of, 10, 11. 
 
 REFORMATION OF INSTRUMENT, 
 when equity will direct, 83-88. 
 what must be shown, 83-88. 
 parol evidence admissible, 83-88. 
 
 REGISTER'S DEED. 
 
 effect of, 669. 
 
 REGISTRY-BOOK. 
 
 facts recorded in, may be proved by parol, when, 5, n. 5. 
 
 REGISTRY OF VESSEL. 
 
 jirocured by party, not evidence for him, 487. 
 
 RELATIONSHIP. 
 
 evidence to prove, ^ee Pedigree. 
 RELEASE. 
 
 technical, from all demands, effect of, 72. 
 presumptions arising from, 241. 
 
 RENT. 
 
 evidence that more or less than named in lease was to be paid, not 
 
 admissible, 110, 111. 
 cannot be shown to be payable at time other than named in lease. 111. 
 receij^t for subsequent quarter, effect of, 668. 
 
 REPAIRS. 
 
 parol proof that landlord agreed to make, not admissible, when, 112, 
 n.l. 
 REPUTATION. 
 
 admissible to establish public rights, 258-264. 
 
 admissible when tradition is not, 258. 
 
 to prove existence of a manor, 258. 
 
 from whom receivable, 259, 260. 
 
 when receivable, 262. 
 
 Us mota, 262-264. 
 
 not admissible to establish an usage, 287. 
 
 See Bishop of Meath v. Belfield, 288.
 
 INDEX. 825 
 
 REPUTATION— Confi?me(i. 
 
 admissible to prove or disprove a public right, 288, 289. 
 
 hearsay inadmissible to establish particular fact, unless, 289. 
 
 illustrations, 289, 290. 
 
 what is essence of, 289. 
 
 to prove existence of road, what is not proper evidence, 290. 
 
 by perambulations, 291. 
 
 by old documents, 291. ^ 
 
 by declarations of deceased persons, 291. 
 
 depositions in old suits, 292. 
 
 manorial documents, 292. 
 
 maps, when, 293-295. 
 
 verdicts, 295. 
 
 as auxilliary evidence, 303. 
 
 to prove custom, 303. 
 
 incorporation of town, 303. 
 
 that a certain person holds a certain office, 304. 
 admissible to prove historical facts, when, 262. 
 rights of public or general interest, 262. 
 
 to show whether a certain building is part of a certain parish, 290. 
 ground upon which received to estabhsh public right, 298-300. 
 position of parties as stated in ancient document, 301. 
 proof of modern exercise of right, 302-305. 
 need not be evidence of facts to admit, 302, 303. 
 statements of opinion of deceased person, rule as to, 303. 
 general, admissible to show incorporation of a town, 303, 304. 
 old records, 302. 
 to show that a man holds an office, 304. 
 
 /See Porter v. Luther, 304. 
 
 RES GEST^. 
 
 what is, 413. 
 
 illustrations, 413-416. 
 
 general rule as to, 413-416. 
 
 expression of bodily or mental feelings as, 417. 
 
 statements made by applicant for life insurance, 420. 
 
 bodily suffering or mental anguish, 416. 
 
 statements made before jirincipal fact, 421. 
 
 illustrations of rule relating to, 423-436, 470. 
 
 how far acts and sayings of parties to wi-itten contract at time of 
 
 making, are part of, 436, 490. 
 declarations as to possession of lands, 444-452. 
 spontaniety of acts, essential, what is, 452. 
 acts before and after principal fact, 460. 
 declarations of conspirators, 475. 
 declarations of conspirators when not part of, 479. 
 writings in possession of, before or after apprehension, 479. 
 exclamations of pain, 417, n. 4. 
 complaints of suffering, 417, n. 4. 
 Admissions accompanying a transaction, 483.
 
 826 INDEX. 
 
 RETURNS. 
 
 on execution cannot be proved by parol, 9. 
 of officer on warrant, eflfect of, 668. 
 
 REVERSIONER. 
 
 not affected by admissions, etc., of tenant for life, 499. 
 
 RIGHT TO BEGIN. 
 
 rule for detennining, 659. 
 
 substance of issue controls, 659. 
 
 when defendant has, 660-662. 
 
 in real actions, 663. 
 
 rules as to, 659-662. 
 
 in action for recovery of land, 663, 
 
 to reply, 664. 
 
 CONTRACT. 
 
 breach of, will not be presumed, 659. 
 
 rule when by pleadings, affirmative of the issue is on the defend- 
 ant, 660. 
 when the affirmative of the issue is on the defendant, 660. 
 illustrations, 660-662. 
 
 when the recovery of unascertained damages is not sought, 660. 
 eflfect of order of court compelling admission, 661. 
 admission of fact by plaintiff does not change rule, unless, 661. 
 rule generally adopted, 661. 
 
 when damages are ascertained or nominal, 661, 662. 
 illustrations, 661, 662. 
 
 RIGHT TO REPLY. 
 
 rule as to, 664. 
 
 RINGS. 
 
 inscriptions upon, to prove pedigree, 266. 
 
 ROAD. 
 
 whether public or not, hearsay, 256. 
 
 . S. 
 SALE. 
 
 by written contract, warranty cannot be proved by parol, 54. 
 
 illustration, 54. 
 
 SEAL. 
 
 receipts under, effect of, 672. 
 
 of general land officer proves itself, 673. 
 
 SCHOOL DISTRICT. ' 
 
 record of meetings of, not primary evidence, unless, 10. 
 
 secondary evidence of, admissible, when, 18, n. 3. 
 
 of courts, conclusively presumed to be correct, 171. 
 
 of judgment, only evidence of, when, 727, 729. 
 
 certified copy of, 726. 
 
 minute-book of clerk, 727. 
 
 imports absolute verity, 730. See Judicial Rscobds. 
 
 1
 
 INDEX. 827 
 
 SEARCH. 
 
 for papers, what must be made to let in secondary proof of contents 
 
 of, 18-23. 
 must be made where, 18. 
 object of, 19. 
 sufficiency of, 18. 
 
 instances of, 19, n.; 20, n. 1 ; 23, n. 
 rule when there are several places for deposit, 19. 
 
 SEA WALLS. 
 
 prescriptive liability to repair, established by hearsay, 256. 
 
 SECONDARY EVIDENCE, 
 what is, 1, 11. 1 ; 12-15. 
 admissible when, 12-15. 
 civil law, rule as to, 13. 
 loss of papers must be shown, 13. 
 
 what party must show to let in, of contents of vmting, 12-35. 
 no degrees of, 31. 
 
 what, is admissible to prove contents of writing, 31. 
 when duplicates of paper exist, 20. See Papers— Noticb. 
 proof of loss or destruction of document, 16, 17. 
 proof of what sufficient to establish, 18-23 and notes, 
 what degree of diligence must be used in search, 18-23. 
 of instrument in hands of adverse party, 23-26. 
 of instrument in hands of third person, 31. 
 loss or destruction probable, slight evidence sufficient, 18. 
 indentures, 20. 
 
 notice to produce, on whom served, 24-26, 30, 31. 
 nature of notice, 24-26. 
 what, to prove contents of wi-iting, 31-34. 
 copies may be used, '^l, 32. 
 need not be shown that no copy exists, 31. 
 copies of letters, 32, n. 4. 
 
 ancient copies, 32. 
 
 entries by deceased clerk, 32. 
 
 judgments, 32. 
 
 executions, 32. 
 
 wills, 32. 
 
 account-books, 32. 
 
 wi-its, 32. 
 
 bonds, 32. 
 
 specialties, 32. 
 
 contracts, 32. 
 
 deeds, 33. 
 
 patents, 33. 
 
 parts of mutilated instruments, 33. 
 
 SERVICE. . 
 
 persons having entered upon, under contract, presumption aa to, 180. 
 
 SETTLEMENT. 
 
 of accounts, eftect of lost, 668, 673.
 
 828 INDEX. 
 
 SHERIFF. 
 
 will be presumed to have discharged his duty, 227, 228. 
 
 SHERIFF'S RETURN. 
 
 effect of, as evidence, 668, 669. 
 
 SHIPS. 
 
 not heard fi-om, presumption as to, 189. 
 
 SHIP'S REGISTERS. 
 
 as evidence, rules as to, G85-689. 
 
 SHOP-BOOKS. See Account-Books. 
 
 SIGNATURE. 
 
 of public agent must be proved, when, 656. 
 
 SILENCE. 
 
 of i^arty operates as implied admission, when, 497-501. 
 of tenant for life, effect of, on remainderman, 499. 
 
 STATE GRANTS, 
 how proved, 724. 
 
 STATE RECORDS. 
 how proved, 725. 
 
 STATUTES. 
 
 of other states, how proved, 629, 633. 
 
 when action is brought on judgment of another state, rule, 629. 
 
 presumption as to, 629. 
 
 rule when relied on as ground of action or defense, 637. 
 
 STATUTE OF FRAUDS. 
 
 excludes proof of parol contracts, when, 86. 
 contract written, cannot be shown by parol, 56. 
 
 STATUTE OF LIMITATIONS. 
 
 presumption of payment arising under, conclusive, 170. 
 indorsement of payment on note, not necessarily admissible to take 
 
 note out of, 484, 485. 
 credit on book, 484. 
 
 STEAMBOAT. 
 
 enrollment of, certified by collector of port, evidence, when, 723. 
 
 STOCK. 
 
 certificate of, may be shown to have been transferred only as security 
 for a loan, 95. 
 
 STRANGERS. 
 
 to judgment, not bound by, 741, 746. 
 
 when suit brought or defended at request of, rule, 747. 
 
 SUBSCRIPTIONS TO STOCK. 
 
 contents of, cannot be proved by parol, 9. 
 
 SUBP(ENA. 
 
 duces temm on third person, necessary to act in secondary proof of 
 paper, when, 31.
 
 INDEX. 829 
 
 SUBSTITUTION. 
 
 of new provisions in contract in place of old, may be shown by parol, 
 wben, 88. 
 
 SURETY. 
 
 not bound by judgment against principal, 744. 
 rule in some states where surety has notice, 744. 
 
 SURROUNDING CIRCUMSTANCES. 
 
 may be shown when, to show intent of parties, 72. 
 general rule as to, 72. 
 
 SURVEYOR. 
 
 certificates of, presum,ed to be correct, 226. 
 
 declarations of deceased, to establish private boundaries, 307-310 
 
 certificates of, 716, 719-721. 
 
 SURVEYOR'S MARKS. 
 
 on trees, may be proved by parol, 7. 
 
 SURVIVORSHIP. 
 
 presumption as to, 186-189. 
 
 T. 
 
 TECHNICAL PHRASE. 
 
 in writing, parol evidence admissible to explain, 40, n. 1. 
 
 TELEGRAMS. 
 
 copies of, not admissible, unless, 2, also n. 3. 
 contents of, not provable by parol, 9. 
 what is primary evidence of, 12. 
 
 TENANCY. 
 
 terms of, of must be proved by lease itself, 6. 
 under whom exists, how proved, 6. 
 
 TENANT. 
 
 under written lease, duration of term, etc., must be proved by lease 
 
 itself, 6. 
 
 TENANTABLE. 
 
 evidence that landlord represented premises to be, not admissible, 
 
 when, 110, n. 11. 
 
 TENANT FOR LIFE. 
 
 silence of, does not operate as admission against reversioner, 499. 
 
 TESTATOR. 
 
 declarations of, intention oy, explainable by parol, when, 48. 
 under guardianship, effect of, as evidence of incapacity, 669. 
 
 TESTIMONY. 
 
 minutes of, of deceased person, when and how admissible, 372. 
 
 THIRD PERSON. 
 
 in privity with party having custody of paper, may be served with 
 notice to produce, 31.
 
 830 INDEX. 
 
 TITLE. 
 
 by deed must be proved, how, 3. 
 
 to property receipted for to sheriff, how far receiptor ia precluded 
 from questioning, 71, 72. 
 
 receipt for purchase-money with warranty, effect of, 72. 
 
 to property cannot be established by hearsay, 250. 
 
 presumptions as to, 220. 
 
 hearsay not admissible to establish, 250. 
 
 assessment of property to a jierson does not establish title to it, 250. 
 
 possessory, burden of, establishing, 666. 
 
 possession of property, evidence of, 666. 
 
 real, must be proved, 666. 
 
 judgment against vendee of property, not conclusive upon vendor as 
 to, when, 744. 
 
 against person indemnified against loss for selling property, not con- 
 clusive as to liability of person indemnifying, when, 745, also n. 4. 
 
 rule when party has remedy over, 746. 
 
 TOLLS. 
 
 claim to, may be established by hearsay, 256. 
 
 TOMBSTONES. 
 
 inscriptions on, may be proved by parol, 7. 
 inscriptions on, to prove pedigree, 269. 
 
 TOWN. 
 
 limits of, may be established by hearsay, 256. 
 
 TRADITION. 
 
 admissible to prove historical facts, when, 262. 
 rights of public or general interest, 262. 
 
 TRADITIONARY EVIDENCE. 
 
 to establish private boundaries,, 308-320. 
 
 TREES. 
 
 surveyor's marks on, may be proved by parol, 1. 
 
 TROVER. 
 
 demand for goods made in writing may be proved by parol, when, 3. 
 in actions of, for writings, notice to produce not necessary, 27. 
 
 TRUST. 
 
 fraud in administration of, upon whom burden of proving rests, 650. 
 correct administration of, presumed, 651. 
 
 u. 
 
 USAGE. 
 
 meaning acquired by word by, may be shown, when, 338. 
 
 admissible to explain receipt, 70. 
 
 parol evidence of, admissible, when, 124-126. 
 
 qualities of a binding usage. 126. 
 
 how must be proved, 128. 129-138. 
 
 must be established by proof of instances, 136-138. 
 
 one witness not generally enough to establish, 128, 129.
 
 INDEX. 83 X 
 
 'USAGE~Co?itinued. 
 
 whether established or not, question for jury, 129, n. 
 
 general, how established, 138-140. 
 
 illustrations, 140-142. 
 
 mere conflict of evidence as to, does not defeat, 142-144. 
 
 local, effect of, 144-1.51. 
 
 illustrations, 144-151. 
 
 what are valid, 151. 
 
 illustrations, 151-155. 
 
 as means of construing words and phrases, 155-163. 
 
 numerous illustrations, 156-166. 
 
 not admissible to explain meaning of words, when. 160-163. 
 
 may add incidents to contract, when, 163. 
 
 illustrations, 163-167. 
 
 rule when ambiguity is created by parol, 167. 
 
 V. 
 
 VERBAL. 
 
 communication as to matter may be proved, although written one 
 exists, when, 3. 
 
 VERBAL AGREEMENT. 
 
 different from written, cannot be shown, 38, n. 
 VENDOR. 
 
 of property not bound by judgment against vendee affecting title, 745. 
 VERDICTS. 
 
 in which the same right was in litigation admissible to estabUsh pub- 
 lic right, 295, 296. 
 
 /See Reed v. Jackson, 295. 
 when evidence, 726. 
 
 against one, admissible against others, when, 743. 
 VESSEL. 
 
 seaworthy, when policy attached presumed to remain so, 180. 
 registry not evidence of ownership of, 669. 
 
 VOLUNTARY DESTRUCTION. 
 
 of paper, contents may be proved, when, 13. 
 
 w. 
 
 WAIVER. 
 
 of demand and notice by parol, may be shown, when, 76. 
 
 of terms of contract may be shown by parol, 88. 
 WALLS. 
 
 notices and inscription on, may be proved by parol, 7. 
 WAR. 
 
 state of, shown once to exist presumed to continue, 181. 
 WARRANTS. 
 
 contents of, cannot be proved by parol, 9.
 
 832 INDEX. 
 
 WARRANTY. 
 
 on sale of property by written contract, cannot be shown by parol, 
 
 when, 54. 
 of goods sold by written contract, cannot be s^hown by parol, when, 64. 
 parol evidence not admissible to show, when, 90-95. 
 when may be proved by parol, 91, 92, 94, 95. 
 See Chapin v. Dobson, 91. 
 
 WIFE. 
 
 present aiding husband in commission of crime, presumption as to, 226. ^ 
 
 WILLS. 
 
 ambiguities in, explainable by parol, 48. 
 
 illustrations, 48. 
 
 declaration of intention by testator admissible, when, 48. 
 
 parol evidence, how far admissible to apply and explain, 49, 51. 
 
 how court should construe, 49. 
 
 patent ambiguities in, not explainable by parol, 50. 
 
 blanks left in, 50. 
 
 when legatees are designated by initials, 50. 
 
 more than thirty years old, prove themselves, when, 172. 
 
 attestation of last sheet of, presumption arising from, 241. 
 
 death of witnesses to, presumption, 241. 
 
 old, admissible to prove pedigree, 274. 
 
 made by person under guardianship, executor must show capacity 
 
 of testator to make, 055. 
 when insanity is set up to avoid, rule, 655. 
 
 WITNESS. 
 
 to attested instruments, must be produced, when, 3, n. 2. 
 
 testimony of, on former trial, may be proved by parol, although 
 
 written minutes of, exist, 4. 
 testimony of, taken in perpetutim, admissible, when, 4. 
 deposition of, admissible, when, 4, also 7i. 2. 
 cannot be cross-examined as to contents of paper, unless, 30. 
 may refresh his recollection by memoranda, 357-366. 
 should be made by, 366. 
 fact that contents of memorandum are not admissible, does not change 
 
 rule, 3G7. 
 need have no independent recollection of, 368. 
 when, has no interest to falsify, 372. 
 
 WORDS. 
 
 meaning acquired by, by usage may be shown, when, 38, 39-4b. 
 
 usage admissible to explain meaning of, 155-160. 
 
 fur, 156. 
 
 weeks, 156. 
 
 day, 156. 
 
 thousand, 156. 
 
 level, 156. 
 
 inhabitant, 156. 
 
 roots, 156.
 
 INDEX. 833 
 
 WORDS— Continued. 
 building, 156. 
 grain, 157. 
 team, 157. 
 privilege, 156. 
 bale, 156. 
 
 WORDS AND PHRASES. 
 
 parol evidence admissible to explain meaning of " good merchantable 
 
 shipping hay," 39. 
 "good custom cowhide boots," 39. 
 "a farm," 39. 
 " deepen a ditch," 39. 
 "damages of the river," 39. 
 "day's work," 39. 
 
 "currency," 39. ! 
 
 " on margin," 39. 
 "his wool," 40. 
 "my wool," 40. 
 "winter strained oil," 40. 
 "dollars," 41. 
 
 principle upon which such evidence is admissible, 39-46. 
 "per perch," 41. 
 "mess pork,"- 156. 
 "across the country," 156. 
 "coppered ship," 158. 
 "British weight," 159. 
 "immediate delivery," 159. 
 other instances, 159. 
 
 "WRITINGS. 
 
 executed in duplicate, each is an original, when, 10. 
 required to be recorded, record best evidence, when, 10. 
 copies of, not admissible, unless, 11, 12. 
 
 parol testimony to explain, rule as to, 36. iSee Papers— Written- 
 Instrdments. 
 
 WRITTEN INSTRUMENTS. 
 
 effect of, admissions of party as to, 11. 
 
 execution of, may be proved, how, 11. 
 
 of all kinds, more than thirty years old, prove themselves, 172. 
 
 exceptions, 172, 173. See Papers. 
 
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