0HlO'-lRit^t:::iil^^ 'immetatBBmmammmm.- in Proeediire' 'm , -the State- of "Ohio '• ' UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY / TRIAL EVIDENCE A Practical Treatise On the Law of Evidence and Related Subjects In Procedure in the State of Ohio BY REED METZLER Of the Columbus Bar Author of an Outline of Evidence CINCINNATI THE W. H. ANDERSON CO. LAW BOOK PUBLISHERS 1920 -T 19- Copyright, 1920 BY THE W. H. ANDERSON COMPANY CixciNXATi, Ohio. r 1<- sMth ^ PREFACE This treatise is an attempt to harmonize the reported eases in Ohio on the laAV of evidence in accordance with the modeni law on the subject. The order and arrangement oi' the book is hirgely the work of the author, but he dischiims any great originality in that respect. Indeed, with such modern writers of ability in the field as Thayer and Wigmore, originality would seem to be hardly possible. To the writings of both Thayer and Wigmore, the debt of the author is very great. In Wigmore 's Treatise, many of the rules of evidence expounded herein have been verified; in Thayer's Preliminary Treatise on the Law of Evidence was found an explanation of the laAv of presumptions which led the author to adopt the arrangement of that subject which is here presented. Accordingly, the indebtedness of the author to these two writers is hereby acknowledged. The works of most of the writers of reputation have been examined on one or more points in the law of evidence ; and some help has been derived from each. In the appendix will be found an outline of the law of evidence. This outline is a summary of the text of the book; or, in other words, the text is a commentary on the outline. It is hoped that this will be helpful to practicing lawyers, and especially so to law students, in reviewing the general prin- ciples, and also the statutory rules, of evidence as illustrated by the Ohio cases. The author has endeavored to compile a book which would be serviceable to the lawyers of Ohio ; this work is not, how- ever, submitted to the legal profession with confidence that it is without error, but only M'ith a hope that its mistakes are few. REED METZLER. Columbus, Ohio, September 1, 1920. ' TABLE OF CONTENTS CHAPTER I. Section JUDICIAL ADMISSIONS, Page 1 Issues made by denials 1 2. Admissions in pleadings 2 3. Admissions and denials 3 4. Material allegations. 3 5. Averments as to value 4 6. Judgment by default 5 7. Admissions generally binding 6 8. Parties not bound 7 9. Admissions in other cases 8 10. Admissions outside pleadings — Forms 9 11. Agreed statement of facts 10 12. Agreements as to certain facts 11 13. Oral admissions by party 11 14. Oral admissions by attorney 12 CHAPTER II. JUDICIAL NOTICE. 15. General principles 1-1 16. In subjects other than evidence 14 17. Matters of general and local government 16 18. Legislative proceedings 17 19. Public and general law 1" 20. Ordinances ^ ^ 21. Courts and their proceedings 20 22. Generally accepted public history 21 23. Geography 24. Facts of science and of art *. 23 25. Matters of common knowledge 24 CHAPTER III. PRESUMPTIONS. 2G. General principles 26 27. Presumption of innocence 28 28. Presumptions of capacity 29 2't. Relating to deeds and conveyances •^f' V Vi TABLE OF CONTENTS Section Page 30. Presumption of payment 31 31. Miscellaneous presumptions , 32 32. Effect of decisions 33 33. Omnia praesumuntur 34 34. Validity of official acts 35 35. Decision below sustained 36 £G. Seasoning of the court 37 37. Prima facie evidence 38 38. Performance of duty 39 30. Eegularity of transactions 40 40. Rule on burden of proof 41 41. Presumptions of fact 43 42. The presumption of continuance 45 43. Construction of writings 47 44. Conclusive presumptions 50 CHAPTER IV. THE BURDEN OF PROOF. 45. General rule 52 46. Denial in answer 52 47. New matter in answer 53 48. Kew matter in reply 55 49. Denial and new matter 55 60. Anticipating a defense 56 51. Nature of new matter 56 52. Proof of defenses to notes 58 53. Proof of performance 59 54. Proof of a single fact f»2 55. Open and close — General principles 63 56. Open and close — Illustrations ^4 57. Open and close — Error in ruling 65 58. Rebutting evidence 66 59. Proper rebuttal 68 CHAPTER V. TPIE SHIFTING BURDEN. 60. The burden of proof never shifts 69 61. The duty of rebutting shifts 71 62. Cases for tiie court 72 63. The charge T3 64. Error in the charge ~i 65. Illustrations of shifting '. . • 75 66. The effect of negative allegations 78 67. Clear evidence — General principles 80 68. Clear evidence to vary writings 82 C'). Clear evidence to establish a trust S3 TABLE OF CONTENTS Vll Section Page 70. Clear evidence to reform an instrument 81 71. Clear evidence to vary commercial paper 85 72. Clear evidence to affect official action. 86 73. Clear evidence to establisli lost instruments 86 74. Clear evidence in miscellaneous cases 87 75. Clear evidence in transactions not favored 87 CHAPTER VI. THE DEGREE OF PROOF. 76. Beyond a reasonable doubt 90 77. The charge in criminal cases 92 78. Defense of "not guilty" 94 79. Defense of alibi 95 80. Independent defenses 96 81. Defense of insanity • • • 97 82 Defense of self-defense 99 83. By a preponderance 99 84. Criminal and tortious acts 101 85. la the contest of wills 103 86. In negligence cases 105 87. In attachment 108 88. In injunction. 108 89. In special proceedings. 109 CHAPTER VII. COURT AND JURY. 90. Law and fact Ill 91. Credibility of witnesses 114 02. Classifying witnesses 1 1^ 93. Weight of evidence 117 04. Negative testimony 119 95. Statement of issues 1-1 00. Two issues l--^ 07. Summing up tlie evidence 124 98. Facts considered without evidence 126 99. Nonsuit — Scintilla rule 127 100. Nonsuit— Motion by one party !'-!> 101. Nonsuit— Motion by each party 130 102 Cases for the jury 130 103. Conclusive proof !•'- 104. In negligence cases 133 105. In will contests •• l'^''> Ylii TABLE OF CONTENTS CHAPTER VIII. Section ISSUE AND VARIANCE. Page 106. General principles 137 107. Immaterial variance 139 108. Material variance 140 109. Time for objection 141 110. Conforming pleading to proof 142 111. Inserting allegations 144 112. Defect waived 145 113. Objection before trial — Defect not waived 145 114. Failure of proof 146 115. Variance as to immaterial allegations 148 116. Rule applied to answers 149 117. Rule applied to replies 150 CHAPTER IX. RELEVANCY. 118. Direct and indirect evidence 152 119. Evidence on one issue 155 120. Order of evidence 156 121. Legal relevancy — Outline 158 122. Genuineness of document 158 123. Introducing a fact 159 124. Explaining a fact 159 125. Supporting an inference 160 126. Rebutting an inference 161 127. Proving identity 164 128. Preparation and subsequent conduct 165 129. Subsequent repairs 168 130. Remoteness 170 131. Similar occurrences 172 132. Other fires 174 133. Other offenses. 175 134. Financial ability 177 135. Custom or habit 178 CHAPTER X. CHARACTER. 136. General principles ISO 137. In libel and slander 181 138. In torts generally 182 139. In rape and seduction 183 140. In crimes generally 1S5 141. In defense of self-defense 187 142. Social standing 189 143. Reputation of third persons 189 TABLE" OF CONTENTS IX Secaon ^^Se 144. Reputation of things ^^^ 145. Province of court and jiu-y 1^1 CHAPTER XI. STATE OF MIND. 146. Knowledge — General principles. 193 147. Knowledge — Similar frauds and crimes 196 148. Knowledge — Similar accidents 198 149. Knowledge — ^Similar occurrences -00 150. Knowledge — Reputation -01 151. Motive — General principles 202 152 Motive — Other crimes -0^ 153. Intent — General principles 204 154. Criminal intent in general 206 155. Intent to kill 207 156. Malice in general -'° 157. Malice in prosecutions -09 158. Malice in libel and slander 210 159. Mental suffering 211 160. Defense of good faith 211 161. Defense of mtoxication -'■" CHAPTER XII. HEARSAY. 914. 162. General rule— Illustrations 21 fi 163. Written hearsay 164. Exceptions to the rule - ' 165. Words in issue " 166. Information acted upon - 167. Pedigree ^f 168. Custom and boundaries - 169. Statements against pecuniary interest '] 70. Dying declarations 171. Business entries " 172. Mathematical and statistical tables 226 173. Commercial publications 174. Former testimony— Bill of exceptions --' 175. Former testimony— Notes of stenographer 227 176. Former testimony- Witnesses CHAPTER XIII. ADMISSIONS. 231 177. General principles ^^^ 178. Illustrations— Oral. ' 179. Illustrations- Written X TABLE OF CONTENTS Section Page 180. Whole statement admissible 236 181. Acquiescence 237 182. Failure to offer evidence 239 183. Offer to compromise 241 184. Self-serving statements — Oral 242 185. Self-serving statements — Exceptions 244 186. Self-serving statements — Written 245 CHAPTER XIY. CONFESSIONS. 187. Preliminary examination 247 188. Involuntary confessions 249 189. Voluntary confessions — Principles 251 190. Confessions before the grand jury 253 191. Confessions of joint parties 254 192. Province of jury 255 193. Proof of the corpus delicti 256 CHAPTER XV. RES GESTAE. 194. General rule 259 195. Illustrations 260 196. Verbal acts 261 197. Time of declaration 263 198. In rape cases : 264 199. Expressions of pain 266 200. Self-serving declarations 267 201. Admissions of agents 268 202. Declarations of instructed agent 269 203. Declarations of employes 270 204. Declarations of carrier's agents 270 205. Declarations of spouse 271 206. Declarations of legal representatives , 272 207. Declarations of corporate agents 272 208. Declarations of public agents 274 209. Declarations of partners 275 210. Declarations of grantors 276 211. Declarations of owners 27S 212. Declarations of joint parties 280 213. Acts of conspirators — Examination 28? 214. Proof of acts— Principles 283 215'. Acts — In homicide cases 284 216. Acts — In crimes affecting property 285 217. Acts — In crimes affecting public 285 218. Acts — Under anti-trust law 286 219. Acts not within conspiracy rule 287 o TABLE OF CONTENTS XI CHAPTER XVI. Section OBJECTIONS AND EXCEPTIONS. Page •220. General principles -^^ 221. Error in admission — Principles -ilO 222 Admission — The record 20. 223 Admdission — Prejudice -'^- 224. Admission of indecisive evidence -03 225. Admission — Subsequent explanation -'•■•> 226. AJmiission — 'Facts not in issue -Ot> 227. Error in exclusion — Principles -'•'' 228. Exclusion of indecisive evidence -•'' £29. Exclusion of cumulative evidence -OS 220. Exclusion — 'Later admission -^^ 231. Exclusion^ — Invited error 209 232. Exclusion — Prejudice 300 233. Verdict on two issues 302 234. Offer and objection 302 235. Time for objection 304 236. Repeated rulings 306 237. Statement of expected proof 307 238. Motion to rule out 308 12263— AJSTDERSOjST—Bantcl 3 239. The motion must be specific 300 240. Instruction to disregard 310 241. Forms of instructions 312 CHAPTER XVII. REAL EVIDENCE. 242. Introductory • 314 243. General rule 314 244. Illustrations 314 245. View by the jury — Principles 316 246. View in appropriation cases 3U 247. View in criminal cases '' ' 248. View in ditcli cases 318 249. Physical examination 319 250. Photographs and diagrams 320 251. Experiments before jury 323 252. Experiments outside of court ^--^ CHAPTER XVIII. WITNESSES. 253. ]\Iodes of taking testimony 32.) 2.54. Testimony by affidavit •'-•_' 2.5i5. Testimony by deposition • ■ ' 25'6. Exceptions to depositions 32. 257. Power of notary taking dc;)oi,itiL;ns 3.50 Xii TABLE OF CONTENTS Section Page 25S. Number of witnesses 332 259. Testimony of accomplices 333 260. Either of two witnesses 336 261. Separation of witnesses 836 262. Limitation of number 337 CHAPTER XIX. COMPETENCY OF WITNESSES. 2i)3. General rule 339 204. Compeitency in criminal cases 340 265. Religious belief 342 266. Privileged communicatiions — ^Clergymen 342 267. Privileged communications — Physicians 343 268. Privileged communications — Attorneys 343 269. Of husband and wife — ^Civil cases 346 270. Of husband and wife — Criminal cases 348 CHAPTER XX. COMPETENCY OF PARTIES. 271. General rule 351 272. Objection to incompetency 352 273. Necessary parties 353 274. Parties not adverse to representative 354 275. Agents not parties 354 27'6. Heirs not parties 355 277. Other witnesses not parties 3o5 278. Party against executor 356 279. Party against guardian 357 280. Party against other representatives 358 281. Party against assignee 3o9 282. Assignor against representatives 860 283. First exception 360 284. Second exception 361 285. Third exception 361 286. Fourth exception 362 287. Fifth exception 363 288. Sixth exception 364 289. Seventh exception 365 290. Eighth exception 365 291. Ninth exception 366 292. Reason and spirit clause 367 293. Compelling a party to testify 367 CHAPTER XXI. EXAMINATION OF WITNESSES. 294. Direct — ^Leading questions 369 295. Impeachment of own witness 371 TABLE OF CONTENTS xHl Section Page 2t) 342. Physical condition — Medical experts 426 343. Experts on permanency of injuries 428" 344. Experts in malpractice cases 429 345. Cross-examination of medical experts 429 346. Physical condition — Non-experts 430 347. ^Mental capacity — General principles 431 348. Mental capacity — Non-experts 432 349. Mental capartty — Experts 434 3o0. Mentality — Weight of testimony 435 3.51. Damage to property 436 352. Value of real estate , 437 353. Value of personalty 438 354. 'Services of brokers 4.39 355. Domestic services 440 3o'6. Services of attorneys 441 357. Chemical experts 442 358. Steamboat experts 443 359. Railway experts 443 360. Appliances 444 361. Rate of speed , 446 362. Animals 448 363. Negligence 448 CHAPTER XXV. PRIVATE WRITINGS. 364. Primary evidence 451 365. Rule as to collateral matters 452 3G6. .Secondary evidence — General rule 453 367. Writings beyond jurisdiction 454 368. Abstracts of books 455 369. Lost or destroyed writings 455 370. Question of loss for the court 457 371. Notice to produce 457 372. Notice must be reasonable 458 373. Notice not always necessary 459 TABLE OF CONTENTS XV Section Page 374. OrJer to produce -IJO 375. Inspection and copy 401 376. Wlien ninstor to inspect 403 3?7. Copy of instrument 464 37S. Proof of, execution — When necessary 4G4 379. Witnesses to ph)ve execution 46.5 380. Exceptions — Ancient ciocunients, etc 407 381. Introduction of writings 4t)8 382. Form— Statute of frauds 470 3S3. Construction of writings 473 CHAPTER XXVI. ACCOUNT-BOOKS. 384. Common-law rule 474 38.1. Statutory rule 475 356. Original entries 4(7 357. Subjects of book-account 478 358. Parol to vary accounts 480 389. Book-accounts of otliers 480 390. Accounts not in books 482 391. Business entries 482 CHAPTER XXVII. PUBLIC WRITINGS— LEGISLATIVE AND EXECUTIVE. 392. General principles 485 393. Acts of the legislature 487 394. Foreign law 488 395. Federal records and documents 490 396. State records and documents 491 397. Articles of incorporation 493 398. County records and documents 493 399. Municipal records 495 400. Records of elections 497 401. Marriage certificates f'OO 402. Notarial certilicates 600 403. Piivate writings recorded 601 CHAPTER XXVIII. JUDICIAL WRITINGS. 404. Foreign records 604 405. Former adjudication 600 406. Former conviction ' 607 407. Correction of record 508 408. Impeachment of record 509 4f>!). Questioning jurisdiction 611 Xvi TABLE OF CONTENTS Section Page 410. Impeachment of verdict 513 411. Records of wills ■ 515 412. Trial-court records 516 413. AdjudJcations as evidence 518 414. Official papers &19 415. Records and papers of justice 520 CHAPTER XXIX. THE PAROL EVIDENCE RULE— RULE OF EXCLUSION. 416. General principles 521 417. Third persons not affected 523 418. Rule as to contracts in general 523 419. Rule as to land contracts 525 420. Rule as to insurance policies 527 421. Rule as to bonds 527 422. Rule as to wills 528 423. Rule as to commercial paper — Makers 529 424. Rule as to commercial paper — Indorsens 531 425. Rule as to receipts 53'2 42G. Rule as to bills of ladang 534 CHAPTER XXX. THE PAROL EVIDENCE RULE— EXCEPTIONS. 427. Introductory 536 428. Consideration in deed? 537 429. Consideration in notes 540 430. Express parol trusts 541 431. Implied trusts 643 432. Fraud and mistake 544 433. Conditional delivery 546 434. Subsequent contract 547 435. Incomplete writing — ^Contracts in general . 549 43'6. Incomplete writing — Transfers 550 437. Incomplete writing— 'Suretyship 550 438. Custom — General rule 551 439. Custom and the law 552 440. Notoriety of custom 554 441. Usages of trade ooo 442. Custom — Expert witnesses 557 443. Custom — Practice 557 444. Ambiguity 558 445. Surrounding circumstances — ^Contracts 559 446. Surroundling circumstances — Guaranties 561 447. Surrounding circumstances — Wills olil 448. Surrounding circumstances — Der^d.s 561 TABLE OF CONTENTS XVH Section ^^8® 449. Construction by parties ^^''-^ 450. Identification of parties ^^3 451. Relation of parties ^^ 452. Subject-matter — General rule ^^^ 453. Subject-matter— Contracts in general 565 454. Subject-matter— Wills o^^ 4o5. Subject-matter— Insurance policies 567 4o'6. Subject-matter — ^Land contracts 568 457. Subject-matter— The debt 568 TABLE OF CASES [References are to pages.] Abrazonine Co, v. Ceramic Co. (17 C. C. [N.S.] 2001, 7, 272. Accident Assn. v. Harrington (10 C. C. [N.S.] 134, 20 C. D. 612), 143. Acklin V. Parker (10 C. C. [ISr.S.] 243, 19 C. D. G25), 86. Adams v. Brig Pilgrim (10 W. L. J. 141, 1 0. D. P. 477), 533. Adams v. Brown (16 O. S. 75), 215, 376, 415. Adams v. Donovan (07 0. S. 83), S3. Adams v. State (25 O. S. 584), 201, 380. Adams v. State (20 0. S. 412), 111. Adams v. State (31 0. S. 462), 91. Adams v. State (14 O. D. 257), 24, 116, 446. Adams v. State (11 X. P. [X.S.] 11, 25 0. D. 77), 209. Advance Thresher Co. v. Hogan (74 O. S. 307), 49. Aidt V. State (2 C. C. IS, 1 C. D. ."""), 238, 444. Alve:in..n v. Lima (S 0. IX 430, 7 N. P. 92), 17, 20. Akron v. McC'omb (18 Oh. 229), 454. Akron v. Temple (16 C. C. [N.S.] 327), 452. Akron-Sclle Co. v. .Tost (16 C. C. [N.S.] 333), 473. Albatross (Stbt.) v. Wayne (16 Oh. 513, 4), 401, 555, 557. Alberts v. Moller (8 A. L. R. 488, G 0. D. P. 864), 162. Albright v. Payne (43 O. S. 8), 497. Aldrich v. Marcellus (3 C. C. 500, 2 C. D. 287), 395. Allen V. Davis (Tappan 60), 482. Allen v. Everly (24 O. S. 97), 51. Allen V. Lowe (10 C. D. 353, 19 C. C. 353), 299, 440. Allen V. Miller (11 0. S. 374, 8), 368. Allen V. Parish (3 Oh. 107), 156, 277, 281, 456, 457. Allen V. Smith (5 O. App. 284, 27 O. C. A. 203), 496. Allen V. State (10 0. S. 287), 117. 334, 381. Allen V. State (26 C. C. [N.S.] 254), 180, 187, 26.-). Alexander v. Jacoby (23 0. S. 358), ■437. Alexander v. Penn. Co. (48 0. S. 623), 490. Alliance v. Campbell (6 C. D. 762, 17 C. C. .'iito, 604), 427. Alliance Co. v. Valentine (9 C. C. 3S7, 6 C. D. .323), 210.. Allison V. Horning (22 O. S. 138), 161. Aim V. Andrews (6 C. D. 514, 9 C. C. 591, .594), 514. Alpin V. iMorton (21 0. S. 536), 138, 210, 291. Al.liiri" V. Iliilse (Wright 170), 559. Americas v. McDowell (16 C. C [N.S.] 573, 27 C. D. 594), 81, 398. Ames V. State (11 N. P. [N.S.] 385, 22 0. D. 92), 23. 3dZ XX TABLE OF CASES [References are to pages.] Ammon v. Johnson (2 C. D. 140, 3 C. C. 263), 386. Ancin v. Ksenick (17 C. C. [N.S.] 310), 147. Anderson v. Allen (19 C. C. [N.S.] 51), 310. Anderson v. Commissioners (12 O. S. 635), 494. Anderson v. Evans (3 W. L. M. 371, 2 0. D. R. 502), 515. Anderson v. Foresman (Wright 59S), 261. Anderson v. Fugman (22 C. C. [N.S.] 283), 84. Anderson v. Realty Co. (19 C. D. 267, 9 C. C. [N.S.] 473, 496), 272. Andrews v. Railway (8 C. D. 584, 19 C. C. 699), 126. Andrews v. State (15 C. C. [N.S.] 241, 23 C. D. 564), 191, 227, 323, 515. Andrews v. Watson (12 C. D. 686), 328, 4.53. Andrews v. Watson (12 C. D. 692), 115, 276. Andy v. State (2 0. App. 103, 19 C. C. [N.S.] 93, 26 C. D. 146), 315. Angeloff V. State (91 O. S. 361, 2), 183, 320. Arbuckle v. Spice Co. (11 C. D. 726, 21 C. C. 357), 462. Arbuckle v. Spice Co. (11 C. D. 743, 21 C. C. 347), 462. Archdeacon v. Gas Co. (76 O. S. 97), 6. Arduino, In re (9 N. P. [N.S.] 369, 20 O. D. 461), 16. Armstrong v. Clark (17 Oh. 495), 340. Armstrong v. Insurance Co. (4 O. App. 46, 22 C. C. [N.S.] 129), 60, 294, 417. Armstrong v. McCoy (8 Oh. 128), 456. Armstrong v. Siddall (12 C. D. 627), 122. Armstrong v. State (21 0. S. 357), 520. Armstrong v. Traction Co. (10 N. r. [N.S.] 581, 23 0. D. 215), 118. Aronson v. Chair Co. (21 C. C. [N.S.] 30), 559. Ash V. Marlow (20 Oh. 119), 112, 329, 376. Ashtabula v. Bartram (3 C. C. 640, 2 C. D. 372), 169, 199. Ashworth v. Carleton (12 O. S. 381), 292, 566. Assurance Co. v. Early (23 C. C. [N.S.] 418), 469. Atkins V. Ballauf (1 Dis. 382, 12 O. D. R. 684), 491. August V. Finnerty (10 C. C. [N.S.] 433, 20 C. D. 330), 384. Aungst V. Creque (72 O. S. 551), 530. Aufidenmoore v. Holzback (89 O. S. 381), :r:!. Austin V. Williams (2 Oh. 61), 557. Avery v. Stites (Wright 56), 563. Avery v. Vansiekle (35 0. S. 270), 406, 530. B Babcock v. May (4 Oh. 334), 532, 534. Babcock v. Camp (12 0. S. 11), 506. Backenstoe v. State (14 O. D. 580, 2 N. P. [N.S.] 178), 17, 487. Backenstoe v. State (19 C. C. 568, 10 C. D. 688), 335. Bacon v. Daniels (37 0. S. 279, 281), 143. Baggott V. Goodwin (17 O. S. 76), 460. Bahl v. Byal (90 O. S. 129), 410, 431, 432. Bailey v. Stoneman (41 O. S. 148), 531. TABLE OF CASES XXI [References are to pages.] Bailus V. State (16 C. C. 226. S C. D. 526, 537), 34, 207, 20S. Bain V. Wilson (10 0. S. 14), 122. Bainbiidge v. State (30 O. S. 264 K 198, 507. Baird v. Detrick (20 N. P. [N.S.I 209, 28 0. D. 110), 282. Baird v. Detrick (8 O. App. 198, 28 O. C. A. 257), 264, 291, 345, 397. Baird v. Howard (51 O. S. 57), 244, 303. Baird v. Telephone Co. (10 C. C. [X.S.] 163, 20 C. D. 107), 54, 75. Baker v. Brennan (12 C. D. 211. 22 C. C. 241 ) , 232, 281. Baker v. Jerome (50 O. S. 682), 353, 358, 359, 363. Baker v. Jordan (3 O. S. 4.38, 441), 551, 568. Baker v. Kellogg (29 0. S. 603), 353, 359. Baldwin V. Curth (9 C. D. 594, 17 C. C. 174, 8), 439. Baldwin v. Snowden (11 O. S. 203), 501, 545. Baldwin v. State (6 Oh. 15), 458, 517. Bank v. Baker (15 0. S. 68), 490, 552. Bank V. Bank (6 C. D. 452, 10 C. C. 233), 454. Bank v. Bank (7 0. App. 68, 28 C. D. 106. 27 O. C. A. 56), 221. Bank v. Buckingliam (12 O. S. 402, 406), 304. Bank v. Cereguti (21 C. C. [N.S.I 38, 25 C. 1). 393), 53. Bank v. Chandelier Co. (17 C. C. 443, 9 C. D. 807), 521, 522, 560 Bank v. Cole (83 O. S. 50, 15 C. C. [N.S.] 315), 501. Bank v. Cornell (41 0. S. 401), 354. Bank v. Craig (63 O. S. 374), 133. Bank v. Gam (3 C. C. fN.S.] 428, 13 C. D. 447), 561, 562. Bank v. Hardin (Wright 430). 50.i. Bunk V. Harding (5 Oh. 545), 505. Bank v. Hayes (64 0. S. 100), 130. Bank v. Iron Co. (13 N. P. [N.S.] 27, 22 O. D 6.33), 525. Bank v. Laidlaw (86 0. S. 91), 561. Bank v. Latimer (8 C. C. [N.S.] 563, 18 C. D. 649), 234. Bank v. Litt (5 O. App. 439, 26 C. C. [N.S.] 145, 30 C. D. 361), 59, 123. Bank v. Lloyd (18 0. S. 353), 4. Bank v. Nash (1 Handy 153, 12 O. D. R. 75), 108. Bank v. Patton Co. (13 C. C. [N.S.] 289, 22 C. T). 627), 418. Bank v. Slemmons (34 0. S. 142), 382. Bank v. Wallace (Iddinga 13), 454. Bank v. White (Wright 51), 519- 520. Bank v. Wickham (6 C. D. 790, 18 C. C. 685), 77. Banking Co. v. Gas Co. (19 C. C. [N.S.] 151), 530. Banning v. Banning (12 O. S. 437), 104, 294, .305. Banning v. Gotshall (62 O. S. 210), 360. Banta v. Martin (38 0. S. 534), 141. Barbour v. Miles (7 C. D. 682, 14 C. C. 628), 144, 163. Barger v. Railway (30 C. D. 61, 28 0. C. A. 92, 96), 463. Barnes v. Auto Co. (13 C. C. [N.S.] 571, 22 C. D. 233), 74, 105. Barnes v. State (15 C. C. 14, 8 C. D. 153), 113, 517. Barnett v. Ward (36 O. S. 107), 140. Barnhisel v. Bank (7 C. D. 533, 14 C. C. 124), .531. Barr v. Chapman (30 Bull. 264, 11 O. D. R. 862), 1.55, 164, 467, 516. Barr v. C;l()stcrniaii (2 C. C. 387, 1 C. D. 546), 490, 516. xxn TABLE OF CASES [References are to pages.] Barrett v. Allen (10 Oh. 426, 431), 559. Barrett v. Hart (42 O. S. 41), 404. Barton v. Morris (15 Oh. 408), 50^. Barton v. State (18 Oh. 221, 22.3), 207. Bassenhorst v. Wilby (45 O. S. 33.3), 112, .5.32. Baseett v. Avery (15 O. S. 200), 105. Bates V. State (10 C. D. 180, C. C. [N.S.] 273, 282), 234, .500. Baiim V. State (6 C. C. [N.S.] 515, 17 C. D. 569), 101, 254, 395, 300, 483. Baumgardner v. IMollenkopf (65 O. S. 612), 550. Baxter v. Leith (28 O. S. 84), 363, 477, 479. Baxter v. State (91 0. S. 167), 01, 207, 303. Bayes v. Zimmerman (10 W. L. J. 240, 1 O. D. R. 500), 20. Bayles v. Grossman (5 A. L. R. 13, 5 O. D. R. 354), 542. Bean v. Green (.33 O. S. 444), 144, 160. 208, 201, 300, 307, 346, 380, 388, 408. Beardsley v. Foot (14 O. S. 414), 232. Beatty v. Hatcher (13 O. S. 115, 9), • 58. Beaver v. Blind Asylum (19 O. S. 07, 108), 8. Beck v. Gage (21 C. C. [N.S.] 160), 243. Beckel v. Insurance Co. (15 N. P. [N.S.] 266), 130. Beckwith v. Telephone Co. (17 C. C. [N.S.] 527), 478. Beebe v. Scheidt (13 O. S. 406), 494. Beecher v. Dunlap (52 O. S. 64), 124, 302, 547. Beer v. Insurance Co. (39 O. S. 109), 532. Beeson v. Criss (7 O. App. 482, 27 0. C. A. 4.54, 20 C. D. 309), 448. Beetz V. Strobel (6 O. D. 143, 4 N. P. 166), 147. Behrens v. Behrens (47 0. S. 323), 27, 31, 104, 205. Bell V. Brewster (44 O. S. 690), 153, 164, 170, 201, 421, 422, 423, 467, 468. Bell v. McGiniiess (40 O. S. 204), 102. Bell v. Rinner (16 0. S. 45, 40), 392. Bell V. State (7 O. App. 185, 27 O. C. A. 3.53, 29 C. D. 48), 510. Bell V. Wilson (17 O. S. 640), 359. Benckenstein v. Schotfe (92 O. S. 29), 332. Bender v. Buehrer (8 C. C. 244, 4 C. D. .507), 318. Bender v. Hanna (16 C. C. [N.S.] 387), 134. Benedict v. State (44 O. S. 679), 303, 346, 403, 419. Benefit Assn. v. Harding (7 C. C. 438, 4 C. D. 668), 68, 399. Bennett v. Shaw (5 C. D. 480, 12 C. C. 574), 474, 475, 476. Bennett v. State (10 C. C. 84, 4 C. D. 129), 379. Benninger v. Hess (41 0. S. 64), 140, 275. Benson v. Stein (34 0. S. 294), 5, 7. Benster v. Powell (5 C. D. 206, II C. C. 401), 234. Bentley v. Dorcas (11 O. S. 398, 400), 2. Bcrdan v. Bour Co. (10 C. C. 127, 6 C. D. 1.54). 260. Beresford v. Stanley (9 0. D. 134, 6 N. P. 38), 105, 113, 136, 410. Bergin v. State (31 O. S. Ill), 97. Berman v. State (25 C. D. 386, 16 C. C. [NS.l 106), 176, 258. Bernhardt v. Bernhardt (7 C. C. [N.S.] 517, 18 C D. 686), 542. Berry v. Collins (9 C. C. 656, 6 C. D. 597), 159, 232. TABLE OF CASES XXlll [References are to pages.] Berry v. State (31 0. S. 219), 11:5, 167, 381, 300. Berwanger v. Bristol (3 N. P. 101, 3 O. D. 683), 417. Besiiden v. Hamilton Co. (7 C. C. 237, 4 C. D. 575), 316. Bethel v. Railway (15 C. C. 381, 8 C. D. 310), 24. Bethel v. Woodworth (11 O. S. 393), 532, 549. Bettman v. Hunt (12 Bull. 286), 358. Bevington v. State (2 0. S. 160), 468. Bickerstaflf v. Hingsley (1 O. App. 91, 10 C. C. [N.S.] 384), 387. Bigalow Fruit Co. v. Huxley (23 C. C. [X.S.] 479), 208. Bird V. Hueston (10 0. S. 418), 221, 532. Bird V. Young (56 O. S. 210, 23), 338. Bishop V. Gazette Co. (4 Bull. 1082, 7 0. D. R. 711), 15. Bissell V. Jaudon (16 0. S. 498), 31. Black V. Chester (12 0. S. 621), 482. Black V. Hill (32 0. S. 313), 294, 507. Blackburn v. Blackburn (8 Oh. 81), 294, 456, 457, 472. Blackburn v. State (23 O. S. 140^ 161, 236, 255, 256, 257. Blair v. State (5 C. C. 496, 3 C. D. 242), 267. Blakeslee v. Hughes, 50 O. S. 490), 41, 182. Bloom V. Brownell (12 O. D. 87), 531. Bluff V. State (10 O. S. 547), 196. Bly V. Smith (94 O. S. 110), 47. Blymyer v. Header (3 O. D. 52, 1 N. P. 355), 280. Blythe v. State (47 O. S. 234), 318. Board of Education v. Cosgrove (11 C. C. 163, 5 C. D. 343), 506. Board of Education v. Mills (38 O. S. 383), 292. Board of Missions v. Bevan (2 O. App. 182, 17 C. C. [N.S.] 275, 24 C. D. 318, 28 O. C. A. 217), 411, 433. Bobo V. WoU (IS O. S. 463, 465), 561. Bode V. Werner (4 C. C. [N.S.] 158, 16 C. D. 206), 59, 73, 131. Boepple V. ilellert (24 C. C. [X.S.] 409), 205. Boest V. Doran (2 C. L. R. 313, 4 O. D. R. 525), 471. Bogart V. Cox (4 C. C. 289, 2 C. D. 551), 364, 476, 477, 478. Boggs V. Haley (22 C. C. [N.S.] 63), 239. Boggs V. Taylor (26 0. S. 604), 473, 567. Bolen V. State (26 O. S. 371), 301. Bolsinger v. Halliday (4 0. App. 311, 22 C. C. [N.S.] 289), 88. Bolton V. Cleveland (35 0. S. 319), 17, 37, 109. Bomberger v. Turner (13 O. S. 263), 2. Bond V. State (23 0. S. 349), 10, 97. Bond Hill v. Atkinson (16 C. C. 470, 9 C. D. 185), 169, 279. Bonebrake v. Columbus (6 N. P. [N.S.] 41, 18 O. D. 367), 143. Bonnet v. Dickson (14 O. S. 434), 328. Boone v. Andrews (10 C. C. [N.S.] 377, 20 C. D. 166), 85, 541. Boone v. Cincinnati (13 O. D. 256), 558. Boswell V. Insurance Co. (26 C. O [N.S.] 385), 129. Boughman v. Boughman (69 O. S. 273), 84, 541. Boviard Co. v. Maitland (92 O. S' 201, 206), 122, 173. ; Bowden v. Hank (12 Bull. 184, 9 O, D. R. 333), 552. XXIV TABLE OF CASES [References are to pages.] Bowe V. Bowe (5 C. C. [N.S.] 233, 16 C. D. 409), 177, 445. Bowers v. State (29 O. S. 542), 184, 344. Bowman v. Hartman (6 C. C. [N.S.] 264, 17 C. D. 309), 298. Box Co. V. Paper Co. (4 C. C. [N.S.] 17, 16 C. D. 27), 546. Boyd V. Sell (Tappan 43), 120. Boyd V. State (81 0. S. 239, 242), 203. Boyer v. Boyer (14 C. C. [N.S.] 305, 23 C. D. 279), 77. Boyle V. State (6 C. C. 163, 3 C. D. 397), 176, 453. Boynton v. Strauss (18 C. C. [N.S ] 229), 84. Brachman v. Hall (1 Dis. 539, 12 O. D. R. 782), 424. Bradford Belting Co. v. Gibson (68 0. S. 442), 273. Bradford v. Watts (Wright 495), 509. Bradstreet v. Pross (11 Bull. 117, 9 0. D. R. 154), 308. Bradley v. Wacker (7 C. D. 565, 13 C. C. 530), 108. Brady v. Palmer (10 C. D. 27, 19 C. C. 687), 486, 489, 505. Brady v. Supply Co. (64 O. S. 267), 18. Bragg V. Colwell (19 O. S. 407), 422. Bramble v. Ward (40 O. S. 267), 55. Brandon v. Railway (8 C. D. 642, 17 C. C. 705), 66, 309, 389, 450. Breck v. State (4 C. C. 160, 2 C. D. 477), 91, 158, 372, 426. Breckenridge v. State (4 O. D. 380, 3 N. P. 313), 442. Brennen v. Cist (9 O. D. 18, 6 N. P. 1), 326. Brewing Co. v. Bauer (50 O. S. 560), 153, 155, 156, 170, 174, 200. Brewing Co. v. Betz (8 C. C. [N.S.] 64, 18 C. D. 484), 144. Brewing Co. v. Hardway (2 0. App. 171, 17 C. C. [N.S.] 475, 26 C. D. 443), 87, 4.5.5. Brewing Co. v. Opp (9 C. D. 516, 17 C. C. 465), 161, 410, 430. Brewing Co. v. Schultz (68 O. S. 407), 62. Brewing Co. v. Ulland (97 O. S. 210), 134. Brick Co. v. Chojnicki (14 C. C. [N.S.] 599, 23 C. D. 3i56), 163, 241. Brick Co. v. Foundry (7 A. L. R. 548, 6 0. D. R. 713), 547. Brick Co. v. Koblitz (22 C. C. [NS.] ,580), 132. Bridge v. State (20 C. C. [N.S.] 231), 80. Brink v. Stratton (176 N. Y. 150), 342. Brinker v. Schreiber (9 Bull. 294, 8 0. D. R. 759), 359, 363. Brinkman v. Lumber Co. (16 C. C [N.S.] 537), 106. Britton v. Granger (7 C. D. 182, 13 C. C. 281), 182. Broadrup v. Woodman (27 0. S. 553), 8, 542. Brock V. Milligan (10 Oh. 121), 342, 383. Brockmeier v. Buck (12 Bull. 213, 9 0. D. R. 353), 432. Brockway v. Warren (24 0. D. 311. 11 N. P. [N.S.] 228, 2.32), 4.57. Bronson v. Metcalf (4 W. L. G. 115, 1 Disney 21), 330. Brown v. Burdick (25 O. S. 260), 516. Brown v. DeLong (6 N. P. [N.S.] 510, 18 O. D. 474), 21. Brown v. Dusha (1 0. App. 232, 20 C. C. [N.S.] 310, 25 C. D. 437), 123. Brown v. Farr (19 C. C. [N.S.] 578, 25 C. D. 466), 145. TABLE OF CASES XXV [Rererences are to pages.] Brown v. Hunkin (2 C. L. R. 28, 4 O. D. R. 502), 383. Brown v. Mfg. Co. (26 C. C. [\.S.] 401), 144. Brown v. Mott (22 0. S. 140), 9. Brown v. State (IS O. S. 496), 3:5.1, 340. Brown v. State (26 O. S. 176), 203, 204. Brown v. State (13 C. C. [N.S.] 138), IBo, 102. Brown v. Willis (13 Oh. 26), 540. Brumbaugh v. Chapman (45 O. S. 368, 375), 538. Bruner v. Briggs (39 O. S. 478, 480), 219. Brunk v. Railroad (20 N. P. [N.S.] 3C0, 2S O. D. 320), 171. Buckingham v. Carter (2 Disney 41), 358. Buckingham v. Hanna (2 O. S. 551), 517. Bucklin V. State (20 Oh. 18, 23), 185, 186, 300, 391. Buddenburg v. Wearsch (20 C. C. [N.S.] 372), 127. Buggy Co. V. Parker (17 C. D. 115, 5 C. C. [N.S.] 383, 385), 565. Building Assn. v. Clark (43 0. S. 427), 2. Building Assn. v. Hayes (2 C. C. 225, 1 C. D. 456), 480. Building Assn. v. Lotze (11 Bull. 285, 9 0. D. R. 248), 232. Building Co. v. Klussman (2 C. C. [N.S.] 83, 15 C. D. 728), 200. Bullock V. Bullock (15 O. D. 783, 3 N. P. [N.S.] 190, 2), 85. Bumiller v. Walker (95 0. S. 344), 49. Bunner v. Ison (8 C. C. [N.S.] 260, 18 C. D. 459), 297, 464, 467. Burch V. State (5 O. D. 137, 7 N. P. 379), 299,442. Burckhardt v. Burokhardt (42 O. S. 474, 499), 154. Burdge v. State (53 O. S. 512), 113, 167, 249. Burke v. Cincinnati (8 N. P. 109, 10 O. D. 542), 487. Burke v. Railroad (96 O. S. 496), 128. Burke v. State (34 0. S. 79), 493. Rurnet v. Brush (6 Oh. 32), 501. Burnham v. Aver (3 0. D. R. 327), 421, 466. Burns v. Columbus (13 N. P. [N.S.] 508), 190. Burns v. State (75 O. S. 407), 96, 165, 191, 382, Burnside v. Dewstoe (15 Bull. 197, 9 0. D. R. .589), 330. Burr V. Shute (2 C. C. [N.S.] 343, 14 C. D. 62), 477. Burrage v. Beardsley (16 Oh. 438), 539. Burridge v. Bank (Wright 688), 243, 454. Burt V. State (23 O. S. 394), 265, 307, 398. Burton v. Granite Co. (5 0. App. 117, 25 C. C. [N.S.] 470, 27 C. D. 1.34), 131. Buschmeyer v. Machinery Co. (7 0. App. 202, 27 0. C. A. 337, 29 C. D. 207), 564. Business College v. Lloyd (60 O. S. 448), 131. Butt V. Worthington (12 C. D. 775, 11 C. C. [N.S.I 371), 356. Buttemiller v. Schmid (4 0. App. 100, 26 C. D. 50, 25 C. C. [N.S.] 1, 203), 100, 116. Byers v. Wackman (16 O. S. 440), 544. Byrd v. Blessing (11 O. S. 362), 127. Byrne v. Wood (9 Bull. 308, 8 O. D. R. 760), 20. XXVI TABLE OF CASES [References are to pages.] Cable V. Bowlus (21 C. C. 53, 11 C. D. 526), 202, 240. Caldwell v. Carthage (40 O. S. 453), 559. Calkins v. State (14 0. S. 222), 421". Calkins v. State (18 O. S. 366), 493. Calvin v. State (12 O. S. 60), 510. Campanario v. State (17 C. C. [N.S.] 388), 92. Campbell v. Campbell (2 C. D. 256, 3 C. C. 449, -453), 15. Campbell v. State (15 C. C. [N.S.] 574, 26 C. D. 171), 157. Canfield v. Film Exchange (14 C. C. [N.S.] 143, 23 C. D. 157), 418. Canter v. State (90 0. S. 1), 518. Canton v. Pryke (5 0. App. 364, 26 C. C. [N.S.] 465, 27 C. D. 536), 130. Carano v. State (3 C. C. [N.S.] 629, 14 C. D. 93, 100), 44. Carey v. State (70 O. S. 121, 126), 116, 379. Carl V. Pierce (20 C. C. 68, 10 C. D. 711), 179. Carmack v. State (13 C. C. [N.S.] 362, 22 C. D. 55), 80. Carpenter v. Denoon (29 0. S. 379), 516. Carpenter v. State (12 O. S. 457), 486. Carpenter v. Warner (38 O. S. 416), 75. Carr v. Dovlosky (17 C. C. [N.S.] 300), 232, 262. Carr v. State (11 C. D. 353, 21 C. C. 43), 99, 164, 189, 207. Carroll v. Olmstead (16 Oh. 251, 7), 156. Carson, In re (12 O. D. 565, 568), 50. Carter v. Day (59 O. S. 96), 538. Carter v. State (4 O. App. 193, 22 C. C. [N.S.] 154), 93, 418. Cartmell v. Wiirlitzer (18 0. D. 387, 5 N. P. [N.S.] 604), 108. Case V. Heffner (10 Oh. 180), 501. Case V. Wresler (4 O. S. 561, 2), 110. Cassidy v. Traction Co. (21 N. P. [N.S.] 125, 29 O. D. 6), 225, 496. Caasllly v. Cassilly (57 0. S. 582), 531, 545. Castings Co. v. Luscomb (6 C. D. 313, 19 C. C. 673), 100, 107, 445. Catholic Knights v. Connema (3 C. C. 130, 2 C. D. 74), 273. Cereal Co. v. Boltz (21 C. C. [N.S.] 532), 199, 291. Cessna v. Breen (22 Bull. 278), 526. Chaffee v. Garrett (6 Oh. 421), 540. Cliallen v. Cincinnati (40 O. S. 113), 10. Chamberlain v. Cleveland (34 O. S. 551), 497. Chamberlain v. Railroad (15 0. S. 225, 250), 138, 141, 541. Chambers v. Frazier (29 0. S. 362), 4. Chambers v. Meade (15 C. C. [N.S.] 352), 116. Chambers v. Wilcox (15 0. D. 629, 3 N. P. [N.S.] 269), 242, 278. Champion v. State (6 C. D. 777, 9 C. C. 627), 206, 209. Chapman v. Seely (4 C. D. 395, 8 C. C. 179), 303, 516, 517. Charch v. Charch (57 O. S. 561), 528, 561, 567. Chase v. Brundage (58 O. S. 517, 25), 81, 132. Cliase V. Washburn (1 O. S. 244, 252), 553. Chatfield & Woods Co. v. Eckert (2 O. L. R. 440, 71 O. S. 544), 125. Cheadle v. State (4 O. S. 477, 478), 78, 79, 80. TABLE OF CASES XXVll [References are to pages.] Cheesemnn v. Kyle (1") O. S. 151, 243. Cheney v. State (7 Oh. [Tt. 1] 222 1, 207. Chicko V. State (24 C. C. [X.S.I 5711), 311. Chillicothe v. Gas Co. (11 0. D. 2!, 8 N. P. 88), 17. Cliittenden v. Columbus (IG C. D. 531, 5 C. C. [X.S.] 84), 19. Choteau v. Raitt (20 Oh. 132, 146), 40, 458. Choteau v. Thompson (3 0. S. 424), 329. Church V. Crocker (7 C. C. 327, 4 C. D. 610), 125, 413. Church V. Tennington (10 C. D. 74, 18 C. C. 408), 521. Church Co. v. Shartel, Iddings(117), 545. Cincinnati v. Cameron (33 O. S. 336), 300, 419. Cincinnati, ex rel., v. Cincinnati (11 C. C. 309, 5 C. D. 372, 377), 25. Cincinnati v. Ferguson (12 0. D. 439, 482), 24. Cincinnati v. Frazer (9 C. D. 487, 18 C. C. 50), 106. Cincinnati v. Hamilton Co. (7 Oh. [Pt. 1] 88,95), 14. Cincinnati v. Henkel (3 0. App. 339, 21 C. C. [N.S.] 21), 241. Cincinnati v. Hosea (19 C. C. 744, 10 C. D. 618), 506. Cincinnati v Johnson (7 C. C. [N. S.] 167, 18 C. D. 377), 7. Cincinnati v. Lead Co. (44 O. S. 24.3), 11. Cincinnati v. McLaughlin (12 C. C. [N.S.] 220, 21 C. D. 503), 67. Cincinnati v. Osborne (27 C. D. 108, 24 C. C. [N.S.I 463), 266. Cincinnati v. Polster (96 O. S. 155), 109. CinciTinati v. Roettingcr (11 C. C, IX.S.] .501, 21 C. D. 252), 294, 296, 298. Cincinnati v. Wright (2 N. P. [X. S.] 53, 14 0. D. 600), 436. Cincinnati College v. LaPvue (22 O. S. 469), 110. Circleville v. Sohn (11 C. D. 193, 20 C. C. 368), 141, 199, 303, 309, 310, 311, 379. Circleville v. Throne (1 C. C. 359, 1 CD. 200), 274. Citizens' Ey. v. Bell (5 C. C. fX-S.] 321, 16 C. D. 691), 105. C lapp V. Banking Co. (50 O. S. 528, 540), 523, 564. Clark V. Boyd (2 Oh. 50), 299, 465, 466. Clark V. Irwin (9 Oh. 131), 9, 519. Clark V. Longworth (Wright ISO), 453. (lark V. ]\rcFarland (99 O. S. 100), 1.36. Clark V. Seminary (2 C. D. 87, 3 C. C. 152), 529, 558. Clark V. State (12 Oh. 483), 92, 98, 410, 426, 435. Clark V. Stitt (4 C. D. 51, 12 C. C. 759), 129. Clawson v. State (14 O. S. 234, 239), 282, 287, 288. (lay Co. V. Chojnicki (14 C. C. [N. S.] 599, 23 C. D. 356), 163. 241. Clayton v. Freet (10 0. S. 544), 82, 85. Cleveland v. Baker (25 C. C. [X.S.] 369, 4 O. App. 68), 202. Cleveland v. Beaumont (4 Bull. 345, 4 O. D. R. 444), 4!)6. Cleveland v. Payne (72 0. S. 347), 274. Cleveland City Ry. v. Conner (74 0. S. 225), 261. Cleveland Ry. v. Hunter (10 C. C. [N.S.I 561, 12 C. 1). 7(19), 174. XXVlll TABLE OF CASES [References are to pages.] Cline V. State (43 O. S. 332), 118, 212. Clinton v. State (33 O. S. 27), 342, 383. Clipper V. Logan (18 Oh. 375), 388, 443. Cloak Co. V. Credit Co. (17 C. C. [N. S.] 559, 5(10), 129, 131. Close V. Parker (11 C. C. [N.S.] 85, 20 C. D. 384), 100. Clutch V. Ebright (5 O. App. 440, 27 O. C. A. 251), 85. Coal & Iron Co. v. Tucker (48 0. S. 41, 60), 553, 557. Coal Co. V. Bank (6 C. C. [N.S.] 225, 17 C. D. 297), 298. Coal Co. V. Coal Co. (86 O. S. 140), 61. Coal Co. V. Davenport (37 O. S. 194), 279, 405. Coal Co. V. Estievenard (53 O. S. 43), 123. Coal Co. V. Hughes (9 C. C. [N.S.] 121, 19 C. D. 139), 556. Coal Co. V. Jones (20 C. D. 588, 11 C. C. [N.S.] 293, 295), 402, 448, 449. Coal Co. V. McFadden (90 O. S. 183)., 107. Coal Co. V. Mining Co. (40 O. S. 559), 562. Coal Co. V. Moherman (9 C. C. 544, 6 C. D. 437, 440), 321. Coal Co. V. Rivoux (88 O. S. 18), 63. Coal Co. V. Sunday Creek Co. (12 N. P. [N.S.] 641), 532. Coal Mining Co. v. Jones Co. (15 C. C. [N.S.] 369), 129, 130, 439. Coble V. State (31 O. S. 100, 102), 206, 382, 383, 384. Coblentz v. State (84 O. S. 235), 197. Cochran v. Almack (39 O. S. 314, 316), 354, 367. Cochran v. State (25 C. C. [N.S.] 430), 249, 454. Coffinberry v. Blakeslee (22 C. C. [N.S.] 34, 28 C. D. 462), 470, 489. Cogswell Co. V. Sibley (17 C. C. [N. S.] 3), 442. Cole V. Bank (83 O. S. 50), 568. Cole V. Bank (15 C. C. [N.S.] 315), 540, 568. Cole V. McClure (88 O. S. 1), 31, 82, 87, 104, 456. Coles V. State (3 C. C. [N.S.] 420, 13 C. D. 313), 91, 341. Collins V. Hope (20 Oh. 492), 528, 543. Collins V. Insurance Co. (17 0. S. 215), 529. Columbus V. Bidlingmeier (7 C. C. 136, 3 C. D. 698), 316. Commissioners v. English (19 C. C. . [N.S.] 566, 25 C. D. 246), 322. Commissioners v. Whisler (82 0. S. 234, 235), 52, 110. Compton Co. v. Stewart (25 C. C. [N. S.] 270, 27 C. D. 428), 13, 133. Conahan v. Purcell (6 Bull. 122, 8 0. D. R. 161), 32. Conett V. Squair (17 O. D. 65, 3 0. L. R. 558), 360, 365, 551. Conklin v. Hancock (67 O. S. 455), 539. Construction Co. v. Lakewood (17 C. C. [N.S.] 165), 4. Cook V. Prosser (7 C. D. 619, 14 C. C. 137), 39. Cook V. Slate Co. (36 O. S. 135), 227, 293, Cook V. State (3 W. L. G. 344, 3 O. D. R. 136, 7), 335. Coolidge V. Smith (5 N. P. [N.S.] 481, 18 0. D. 151), 544. Coombs V. Lane (4 O. S. 112), 28. Cooper V. West (3 Bull. 431, 7 O. D. R. 470) , 365. Corbett v. State (3 C. D. 79, 5 C. C. 155), 158, 285, 469. TABLE OF CASES XXIX [References are to pages.] Cordage Co. v. Cordage Co. (C C. C. 615, 3 C. D. 613), 286, 2<)4. Cordes v. State (4 N. F. 14, 6 O. D. 5), 214. Cornell v. Morrison (87 0. S. 215), 13, 133. Corry v. Campbell (25 0. S. 134, 40), 2, 56. Corry v. Gaynor (22 O. S. 5S4), 404. Corwin v. Cook (8 Bull. 4, 12 Bull. 157), 530. Cosgrove v. Schaefer (15 Bull. 8, 9 0. D. R. 550), 223. Costello V. Henkel (3!» Bull. !).">), 554. Coston V. Paige (0 0. S. 397), 53, 108, 307. Cottell V. State (5 C. D. 472, 12 C. C. 467, 472), 243,403. Cotton V. Ashley (7 C. D. 242, 13 C. C. 535, 538), 295, 363. Courtright v. Staggers (15 0. S. 511, 514), 242, 297, 298. Cowan V. Kinney (33 O. S. 422), 276, 390. Cowan V. Ladd (2 O. S. 322), 329. Crabtree v. State (30 0. S. 382), 201. Craig V. State (5 O. S. 605, 607), 391. Cram v. Spear (8 Oh. 494, 496), 364, 475, 476, 477, 478. Crary v. McCrory (9 N. P. [N.S.] 1, 20 O. D. 110), 455. Crawford v. Merrell (5 O. App. 146, 25 C. C. [N.S.] 537, 27 C. D. 104), 117, 131. Creamer v. Harris (90 0. S. 160), 48. Creed v. Bank (1 0. S.) 1), 30, 542. Creed v. Henkel (9 C. D. 861, 18 C. C. 883), 563. Crofton V. Board of Education (26 O. S.) 571), 8. Cromley v. State (19 C. C. [N.S.] 526, 26 C. D. 209), 93, 122. Crosby v. Crosby (10 C. C. [N.S.] 57, 20 C. D. 14), 31. Crosier v. McNeal (17 C. C. C44, G C. D. 748), 226. Cross V. Armstrong (44 O. S. 613, 622), 15. Crow V. Jordon (49 O. S. 655), 1C4, 314. Crowell V. Bank "(3 O. S. 406), 276, 329, 401, 402, 409. Crusen v. State (10 0. S. 258), 92, 333. CuUen V. Bimm (37 O. S. 236), 160. Cummings v. Kent (44 0. S. 92), 531. Cummings v. Bitter (33 Bull. 202), 547. D Dabbert v. Insurance Co. (2 C. S. C. R. 98), 260. Daley v. Brotherhood (7 N. P. [N. S.] 238, 19 O. D. 60), 271. Dallas V. Ferneau (25 0. S. 635, 638), 5. Dalrymple v. State (5 C. C. [N.S.] 185, 16 C. D. 562), 28, 36, 499. Dalrymple v. Wyker (60 O. S. 108), 541. Daniel v. Downing (26 0. S. 578), 501. Dannemiller v. Leonard (15 C. C. 686, 8 C. D. 73.-)), 218. Dannemiller v. Zimmerman (22 C- C. [N.S.] 545), 129. Darling v. Hippel (12 C. D. 754), 9. Daugherty v. O'Connell (12 Bull. 261), 323. Davenport v. Sovil (6 O. S. 459), 85, 545, 546. Davey v. Miller (37 Bull. 203), 145. Davider v. Railway (20 C. C. [N.S.] 165), 173, 260. Davidson v. Telephone Co. (5 O. App. 237, 26 C. C. [N.S.] 273, 27 C. D. 415), 179. XXX TABLE OF CASES [References are to pages.] Davis V. Coffield (6 W. L. J. 318, 1 O. D. R. 267), 539. Davis V. Davis (11 0. S. 386), 38, 511. Davis V. Gray (17 O. S. 330), 491. Davis V. Guarnieri (45 0. S. 470), 100, 138, 139, 171. Davis V. Herrick (.6 Oh. 55), 112. Davis V. Railway (15 N. P. [X.S.] 416, 24 0. D. 172), 133. Davis V. State (19 0. S. 217), 162. Davis V. State (25 0. S. 369), 207, 212. Davis V. State (63 0. S. 173), 93. Davis v. State (20 C. C. 430, 10 C. D. 738), 197,286, 481. Dawson v. State (5 O. App. 130, 25 C. C. [N.S.] 257, 27 C. D. 52), 215, 239. Dayton v. Hooglund (39 O. S. 671), 473, 560. Dean v. King (22 O. S. 118), 535. Dean v. Yates (22 0. S. 388), 146. DeCamp v. Archibald (50 O. S. 618), 165, 330J 379, 387. Degraw v. Lampert (17 C. C. [N.S.] 401), 132. DeHaven v. Coup (6 A. L. R. 593, 5 0. D. R. 562), 546. Delaware v. Construction Co. (21 C. C. [N.S.] 137), 124. Delaware Co. v. Andrews (18 O. S. 49), 147. Delfs V. Yeager (16 C. C. [N.S.] 433), 161. Deming v. Trustees (31 O. S. 41, 50), 522. DeMonte v. Rabst (14 O. D. 97), 190. DeMuth V. State (7 O. App. 245, 27 0. C. A. 585, 29 C. D. 20), 17. Denison University v. Manning (Id- dings 75), 437. Dennis v. Landreth (15 C. C. [N.S.] 159, 22 C. D. 678), 2. Dentoi? V. "\^Tiitney (31 0. S. 89), 546, 560. Derush v. Brown (8 Oh. 412), 281. DeSegond v. Culver (10 Oh. 188), 502. Deshler v. Sims (2 N. P. [N.S.] 385, 14 0. D. 532), 438, 494. Despatch Line v. Glenny (41 O. S. 166, 177), 328. Detwiler v. Toledo (6 C. D. 297, 13 C. C. 572), 225. Detwiler v. Toledo (6 C. D. 300, 13 C. C. 579), 412. DeVeaux v. Clemens (17 C. C. 33, 9 C. D. 647), 102, 228, 230, 370. Devere v. State (5 C. C. 509, 3 C. D. 249), 164, 178, 197, 298, 458, 461. Devereaux v. Thornton (4 Bull. 355, 4 0. D. R. 449), 323. Dew V. Reid (52 0. S. 519), 139, 330. Dewey v. Sloan (11 Bull. 102, 9 O. D. R. 151), 10. Dewitt V. Greenfield (5 Oh. 225), 211. Dick V. Hyer (94 O. S. 351), 346. Dick V. Railroad (38 O. S. 389), 128, 129. Dickey v. Beatty (14 O. S. 389), 294. Dickey v. Greenleaf (38 O. S. 593), IGl, 306. Dickson v. Kilgour (1 N. P. [N.S.] 17, 14 0. D. 59), 118. Dickson v. State (39 O. S. 73), 262, 298, 337, 399. Diegle v. State (14 C. C. [N.S.] 289, 23 C. D. 82), 285, 384. Diehl V. Stine (ICC. 515, 1 C. D. 287), 457. Dietz V. Cincinnati (25 C. C. [N.S.] 506, 28 C. D. 350), 199. Dilcher v. State (39 0. S. 130, 136), 394. TABLE OF CASES XXXI [References are to pages.] Dilcher v. State (42 0. S. 173), 193, •254, 2S1. Dille V. Lovell (37 O. S. 415), 64, 65. Dispatch Co. v. Sturj^es (7 C. C. [X. S.] 445, 18 C. D. 65), 224. Dittrick v. Andrews (7 O. App. 363, 28 0. C. A. 200, 29 C. D. 73), 37. Dittrick v. Keliey (20 N. P. [N.S.] 86, 27 0. D. 500), 499. Ditzler v. State (2 C. D. 702, 4 C. C. 551, 6), 283. Dixon V. Subdistrict (3 C. C. 517, 2 C. D. 298), 275, 497. Dock Co. V. McCafferty (5 C. D. 262, 11 C. C. 457), 473. Dock Co. V. Smith (25 C. C. [N.S.I 142), 557. Dock Co. V. Trapnell (23 C. C. [N. S.] 408), 259, 379,400, Dodd V. Groll (19 C. C, 718, 8 C. D. 334), 489, 504. Dodge V. Bank (30 0. S. 1), 205, 259, 552. Dokes V. Soards (8 O. D. E. 021, 9 Bull. 76), 243. Donald v. State (11 C. D. 483, 21 C. C. 124), 67, 121, 229, 283, 287, 288. Donaldson v. State (5 C. D. 98, 10 C. C. 613), 191. Doney v. Clark (55 O. S. 204), 366. Doolittle V. :\IcCullou';Ii (7 O. S. 299), 297. Doren v. Flominjr (6 C. C. [N.S.J 81, 17 C. D. 737), 129. Dougherty v. Schlotmari (1 C. S. C. v.. 292), 102, 2.33, 459. Dougliman v. Dougluiiati (21 O. S. 658), 302. Douglas V. Downciid (11 C. C. [N. S.] 390, 20 C. 1). 649), 295. Douglass V. Campbell (2 C. C. [N. S.] 62, 14 C. D. 241), .522. Douglass V. Plotkin (7 C. D. 159, 13 C. C. 461), 149. Dragoo v. Whisner (31 O. S. 102), 64. Dresback v. State (38 O. S. 365), 375. Driggs V. State (52 O. S. 37), 18, 503. Drott V. Riverside (2 C. D. 565, 4 C. C. 312), 497. Drucker v. Home City (12 C. C. [N. S.] 309, 21 C. D. 466), 100. Drummond v. Henderson (62 O. S. 136), 183. DuBois V. Schell (94 0. S. 93), 496. Duckwall V. Weaver (2 Oh. 13), 455, 466. Dudley v. Iron Co. (13 0. S. 168, 172), 292. Duhme Co. v. Hazen (6 C. C. [N.S.I 606, 17 C. D. 670), 299, 404, 440. Dukes V. Spangler (35 0. S. 119), 204, 276. Duncan v. Kiger (6 O. App. 57, 27 0. C. A. 422, 28 C. D. 299), 322. Dunlap V. Doutjiet (8 C. D. 259, 15 C. C. ir.l), 505. Dunlap V. Dunla|) (89 0. S. 28), 432, 434. Dunn V. Cronise (9 Oh. 82), 231, 394. Dunn V. State (45 0. S. 249), 265. Durance v. State (16 C. C. [X.S.] 20, 27 C. D. 287), 294, 372. Dutoit V. Doyle (16 0. S. 400), 15. Duttenliofcr v. State (34 O. S. 91, 95), 345. Duval V. Davey (32 O. S. 604), 181, 347. Duvall v. Fuhrman (2 C. D. 174, 3 C. C. 3051, 142, 178, 184. L'uvelmeyer \. Duvclnicycr (5 N. P. 89, 7 0. D. 420), 542. Dye v. Scott (35 0. S. 194), 114, 531. Dyer v. Ishara (4 C. C. 429, 2 C. D. 633), 178. Dvkeman v. .Tuhnson (!:3 O. S. 126), XXXll TABLE OF CASES [References are to pages.] E Earl V. Shoulder (6 Oh. 409), 8. Easterday v. Kilborn (Wright 345), 342. Eastman v. Wight (4 O. S. 156, 161), 503. Eaton V. Longworth (10 O. S. 20), 469. Edgar v. Richardson (33 O. S. 581, 592), 277, 518. Edwards v. Davis (30 Bull. 283, 11 0. D. R. 876), 103, 105, 135. Edwards v. Edwards (24 O. S. 402). 2, 348. Edwards v. Owen (15 Oh. 500), 198. Edwards v. Richards (Wright 596), 546. Edwards Mfg. Co. v. Perry (4 O. App. 390, 22 C. C. [N.S.] 422, 27 C. D. 579), 82. Eflfinger v. State (9 C. C. 376, 6 C. D. 417), 97, 101. Efiinger v. State (11 C. C. 389, 5 C. D. 408), 326. Egle V. Morrison (6 C. C. [KS.] 609, 17 C. T>. 497), 472. Eihlert v. Gommoll (3 C. C. [N.S.] 345, 13 C. D. 586), 150, 189, 209. Eisenstadt v. Lucke (25 C. C. [N. S.] 225), 172. Eldred v. Sexton (5 Oh. 215), 499. Electric Co. v. Deubler (7 C. C. 185, 3 C. D. 720), 290. Ellard V. Ferris (91 O. S. 3.39), 48. Ellen V. Thrasher (16 C. C. [N.S.] 469), 59. Elliott V, Platter (43 O. S. 198), 508. Ellis V. Insurance Co. (4 O. S. 628), 127, 128. Ellis V. Twiggs (17 C. C. [N.S.] 172), 410. Elstner v. Fife (32 0. S. 358, 368), 309. Elston V. Findlay (24 O. D. 465), 37. Ely V. Borck (7 0. App. 49, 27 O. C. A. 398, 29 C. D. 277), 141. Elyria v. Good (17 C. C. [N.S.]- 127), 199. Emery v. Bank (25 0. S. 360), 535. Emig V. Comrs. (1 N. P. 320, 3 0. D. 362), 110. Emison v. Railroad (12 C. D. 727), 217, 224, 484. Emmitt v. Lee (50 0. S. 662), 492. Emrie v. Gilbert (Wright 764), 452, 532. Engineering Co. v. Colechia (18 C. C. [N.S.J 316), 107. English V. Arnold (35 Bull. 315), 279. Ent V. Evans (1 C. S. C. R. 509, 13 0. D. R. 690), 553. Erie Co. v. Walker (22 Bull. 106, 10 O. D. R. 558), 272. Erwin v. Shaffer (9 0. S. 43), 32. Erwin v. State (29 O. S. 186, 191), 207, 208. Esch v. Elyria (7 C. C. [N.S.] 9, 17 C. D. 446), 19. Esley V. State (10 C. C. [N.S.] 16fl, 19 C. r>. .568), 176. Este V. Wilsliire (44 0. S. 636), 386. Euclid V. Bramley (20 C. C. [N.S.] 453), 19. Evans v. Lewis (30 O. S. 11), 205. Evans v. Reynolds (32 O. S. 163,5), 18, 41, 79, 296. Evans v. State (24 O. S. 458), 370, 518. Evans v. State, 6 N. P. 129, 9 O. D, 222, 224), 24. Evans v. Vauglin (2 O. App. 421, 20 C. C. [N.S.] 425, 26 C. D. 128), 418. Evans v. Wooster (28 O. C. A. 285, 30 C. D. 250), 19. Evants v. Strode (11 Oh. 480, 488), 50. TABLE OF CASES XXXUl [References are to pages.] Everett v. Waymire (30 0. S. 308), 3. Ewalt V. Ames (6 O. App. 374, 29 C. D. 133, 27 O. C. A. 465, 475), 345. Exporting Co. v. Bank (Wright 249), 550. Express Co. v. Backman (28 O. S. 144), 61. Faber's Estate (5 0. D. 575, 7 X. P. 561), 516. Fabian v. State (97 0. S. 184, 188). 315, 377, 443. Fagan v. Welsh (19 C. C. [N.R.] 177, 180), 74, 104. Falardeau v. Smith (13 C. C. [N.S.] 268, 21 C. D. 649), 458, 477. Fallis V. Griffith (Wright 303), 455. Fanning v. Insurance Co. (37 O. S. 344), 55, 150. Farley v. Lisey (55 0. S. 627), 352, 358. Farmer v. Cope (37 Bull. 132), 528. Farr v. Bicker (46 O. S. 265), 531, 541. Farrar v. State (2 O. S. 54, 56), 513, 514, 515. Farrell v. State (32 O. S. 456, 461), 211, 297. Farrer v. State (2 O. S. 54, 75), 155, 175, 196. Farrington v. State (10 Oh. 354), 217. Fastbinder v. State (42 O. S. 341), 90, 93, 129, 154. Fath Co. V. Bausmerth (15 C. C. [N. S.] 150, 23 C. D. .382), 10. Fatman v. Thompson (2 Dis. 482, 13 O. D. R. 295), 555,556. Feagles v. Tanner (20 C. C. 86, 11 C. D. 172), 83. Feagles v. Tanner (20 C. C. 94, 11 C. D. 176), 501. Feigley v. Whitaker (22 0. S. 606), 275. Foltrup V. Schloomer (13 C. C. [N. S.] 473, 23 C. D. 467), 345. Fenger v. Fenger (7 Bull. 304, 8 O. D. R. 407), 155. Ferguson v. Gilbert (16 0. S. 88), 52, 53, 76. Ferguson v. Powder Co. (6 C. D. 408, 9 C. C. 445), 144. Fewster v. Goddard (25 0. S. 276), 2, 53, 59, 65, 68. Fibre Co. v. Steel Co. (22 C. C. [N. S.] 521), 525. Fiedeldey v. Reis (12 Bull. 771, 9 O. D. R. 296), 56. Field Co. v. Cordage Co. (6 C. C. 615, 3 C. D. 613), 286, 204. Fields V. State (4 N. P. [N.S.] 401, 17 0. D. 16), 446. Findlay Bros. Co. v. Eiser (17 C. C. [N.S.] 406), 56. Finnegan v. Sullivan (4 C. D. 292, 18 C. C. 876), 236, 309, 399. Fire Association v. Appel (76 O. S. 1, 7), 60. Fisher v. Patterson (14 Oh. 418), 182. Fisher v. Tryon (15 C. C. 541, 8 C. D. 550, 564), 3, 7. Fitch v. Gottschalk (6 C. C. [N.S.] 239, 18 C. D. 811), 531. Fitzpatrick v. Forsythe (7 A. L. R. 412, 6 O. D. R. 682), 495. Flanders v. Blandy (45 O. S. 108, 113), 88. Fleming v. Donohoe (5 Oh. 255), 541. Flynn v. Wiltshire (19 C. C. [N.S.] 433), 139. Fogarty v. State (9 O. D. 477, 6 N. P. 248), 452. Folliard v. State (14 C. C. [N.S.] 205, 22 C. T>. 481), 486, 491. Foote v. Railway (21 C. C. 319, 11 C. D. 685), 437. XXXIV TABLE OF CASES ■ [References are to pages.] Forbis V. Shattler (2 C. S. C. R. 95, 13 O. D. R. 789), 472. Ford V. Obsorne (45 0. S. 1), 82, 83, 501. Ford V. State (11 C. C. [N.S.] 324, 20 C. D. 592), 296, 455. Fordyce v. Godman (20 0. S. 1), 487. Foreman v. Railroad (4 W. L. M. 159, 2 0. D. R. 611), 387. Forrest v. State (21 0. S. 641), 236, 264, 305. Forschner v. Mellick (16 C. C. [X. ' S.] 309), 131. Fosdick V. Van Horn (40 0. S. 459, 467), 275, 454. Foster v. Dugan (8 Oh. 87), 226. Foster V. Robinson (6 0. S. 90), 551, 556. Foster v. State (19 O. S. 415, 418 i, 23. Foster v. State (1 C. D. 261, 1 C. C. 467), 266. Fouts V. State (7 0. S. 471), 282, 283, 287. Fouts V. State (8 O. S. 98, 108), 24S, 250, 251, 252. Fowler v. Chichester (26 O. S. 9), 189. Fowler v. Delaplain (79 O. S. 279, 285), 417. Fox V. Jewell (91 0. S. 409), 116. Foxhever v. Red Cross (14 C. D. 56, 2 C. C. [N.S.] 394), 271, 355. Foy V. Railway (6 C. D. 396, 10 C. C. 151), 449. Frank v. Brewing Co. (5 O. L. R. 559, 53 Bull. 37), 128, 426. Frank v. Traction Co. (7 K P. [N. S.] 143, IS 0. D. 791), 144. Franklin v. Baker (48 O. S. 296), 41. Freeman v. Muth (3 Bull. 914, 7 0. D. R. 555), 545. Freeman v. Rawson (5 0. S. 1), 473, 545. French v. Carkin (30 C. D. 68), 355, 363. French v. Millard (2 0. S. 44), 115, 119, 122, 391. Friednour v. Friednour (8 N. P. 509, 9 0. D. 466), 455. Frost V. Joimson (8 Oh. 393), 241. Fugman v. Trostler (24 C. C. [N, S.] 521), 54, 116. Fuher V. Vilhvock (14 C. C. 389, 6 C. D. 373), 147. Fuller V. Coats (18 O. S. 343), 291. Fuller V. State (12 O. S. 433), 28, 90. Funk V. Amor (2 C. 'D. 541, 4 C. C. 271), 183, 201. Funk V. Amor (7 C. C. 419, 2 C. D. 541), 194. Furnace Co. v. Railway (22 O. S. 451), 307, 472. Furrer v. Railway (7 0. App. 491, 27 0. C. A. 410, 30 C. D. 200), 174, 496. G Gable v. Toledo (9 C. T>. 63, 16 C. C. 515), 201. Gager v. Prout (48 O. S. 89), 272. Gaines v. Trans. & Ins. Co. (28 O. S. 418), 61, 148. Galion v. Lauer (.55 0. S. 392), 177. Gandolfo v. State (11 0. S. 114), 186, 299. Gano V. Fisk (43 0. S. 462, 73), 88. Garrett v. Hanshue (53 O. S. 482), 10, 11, 12, 465, 466, 467. Garrison v. State (4 N. P. [N.S.] 277, 17 0. D. 159), 268. Gartner v. Corwine (57 O. S. 246), 148. Gas & Electric Co. v. Archdeacon (80 O. S. 27), 132. Gas Co. V. Johnston (76 0. S. 119, 123), 151. Gates V. Cleveland (18 C. C. [N.S ] 349), 19. TABLE OF CASES XXXV [References are to pages.] Gates V. Storage Co. (22 C. C. 724, 11 C. D. 721), 278. Gawn V. State (13 C. C. 116, 7 C. D. 19), 168. Gay V. Gay (26 O. S. 402), 244, 270. Gaylord v. Case (5 A. L. R. 494, 5 0. D. R. 413), 491. Gazette Co. v. Bishop (7 Bull. GO, 6 0. D. R. 1113), 64. Gazette Co. v. Grooms (21 Bull. 292, 10 0. D. R. 480), 303,348. Gee V. State (60 0. S. 485), 518. Geer v. State (16 C. C. [KS.] 151), 93. Geier Co. v. Reliance Co. (14 K. V. [KS.] 353, 26 O. D. 329), 21. Geiger v. State (70 O. S. 400), 237, 238. Geisse v. State (85 0. S. 457), 25. Gentile v. Railway (6 O. D. Ill, 4 N. P. 9), 297. Gerlaugh v. Riley (2 N. P. [N.S.] 107, 14 0. D. 557), 65. Gerwe v. Fireworks Co. (12 C. C. 420, 5 C. D. 616), 134. Gibbons v. Day Co. (25 C. C. [N.S.] 559, 28 C. D. 359), 84. Gibbs V. Fulton (2 Oh. 180), 505. Gibbs V. Girard (88 0. S. 34), 128. Gibson v. Farina Co. (2 Dis. 400, 13 O. D. R. 306), 464. Gibson v. Xorwalk (7 C. D. 6, 13 C. C. 428), 101. Gilchrist v. Transportation Co. (21 C. C. 10, 11 C. D. 350), 312, 458. Gill V. Pelkey (54 O. S. 348), 546. Gilligan v. Arcanum (5 C. C. [N.S.] 471, 16 C. D. 42), 130. Gilliland V. Sellers (2 O. S. 223), 20. Gillmore v. Fitzgerald (26 O. S. 171), 86, 456. Gilmore v. Cochran (16 C. C. [N.S.I 315), 82. Ginn v. Dolan (81 0. S. 121), 59, 69, 70, 74. Gittings V. Bakor (2 0. S. 21), 12. Class Co. V. Tillyer (10 C. D. 30G, 19 C. C. 635), 326. Gleason v. Williams (Tappaii 174), 392. Gobrecht v. Sicking (9 C. D. 851, IS C. C. 881), 270. Goins V. State (46 O. S. 457), 283, 284, 513, 514. Golden Rule v. Everding (20 C. C. 6;-^9, 11 C. D. 419), 33, 60, 140, 143. Golner v. State (19 C. C. [N.S.] 317), 344. Golner v. State (19 C. C. [N.S.] 571, 26 C. D. 654), 377. Gomien v. Weidemer (27 O. C. A. 177, 29 C. D. 1 ) , 136, 435. Goode, In re (3 0. L. R. 401, 16 O. D. 404), 331. Goode V. Patterson (40 O. S. 345), 235. Goodman, In re (1 0. D. 271, 7 N. P. 201), 332. Goodman v. Lynch (17 C. C. [N.S.] 31), 112. Goodrich v. Jenkins (6 Oh. 43), 512. Goyert v. Eicher (70 O. S. 30), 9. Graf V. Wirthweine (1 Handy 19, 12 O. D. R. 4), 568. Graham v. Burggraf (10 C. C. [N.S.] 594, 12 C. D. 747), 466, 502. Graham v. Davis (4 O. S. 362, 382), 66, 78. Graham v. Insurance Co. (75 O. S. 374), 60. Grain Co. v. Cincinnati (14 C. C. [N.S.] 85), 127. Grain Co. v. DeFranco (16 C. C. [N.S.] 182), 62.- Grain Co. v. Fronizer (25 C. C. [N.S.] 151), 82. Grand Lodge v. Bunkers (3 C. C. IX.S.] 256, 13 C. D. 487), 301, 402. XXXVl TABLE OF CASES [References are to pages.] Grant v. Railway (10 C. C. 362, 6 C. D. 516), 240. Gray v. State (4 Oh, 353), 315. Green v. Railway (5 C. C. [N.S.] 497, 16 C. D. 609), 293. Gregg V. Moore (14 C. C. [N.S.] 570, 23 C. D. 534), 433. Greve v. Traction Co. (15 N. P. [N.S.] 289), 121. Grever v. Taylor (53 O. S. 621), 405. Griffin V. Railway (21 C. C. 547, 11 C. D. 749), 149. Griffin V. State (14 0. S. 55), 185, 186, 187, 196. Griffith V. State (93 O. S. 294, 6), 507. Griffith V. Zipperwick (28 O. S. 388), 239. Grillo V. State (9 C. C. 394, 6 C. D. 90, 92), 166, 167, 315. Groff V. Hertenstein (12 C. C. [N.S.] 515, 21 C. D. 633), 205. Grossner v. State (18 C. C. [N.S.] 46), 19, 21. Grote V. Meyer (9 A. L. R. 623, 6 0. D. R. 1025), 540. Groves V. Groves (6.') O. S. 442), 525, Grunkemeyer v. Railway (19 C. C. [N.S.i 366, 3 0. App. 62, 25 C. D. 230), 43. Guckenberger v. Dexter (5 N. P. 429, 8 0. D. 530), 25. Gund V. Fixture Co. (14 C. C. [N.S.] 493, 22 C. D. 676), 302. Gunning v. Railway (14 0. D. 660), 568. Gurley v. Armentraut (6 C. C. [N.S.] 156, 17 C. D. 199), 158, 205, 424. Gypsum Co. v. Railway (7 0. App. 145, 27 O. C. A. 481, 28 C. D. 315), 517. Haas V. Kundtz (94 O. S. 238, 246), 114, 411, 413, 414. Haberty v. State (8 C. C. 262, 4 C. D. 462, 3), 238, 349. Hackman v. Cedar (5 C. D. 293, 13 C. C. 618), 66. Hadley v. Importing Co. (13 0. S. 502, 505), 550. Hadlow V. Beavis (42 Bull. 256), 529. Hafer, In re (65 0. S. 170), 332. Hafer, In re (21 C. C. 445, 12 C. D. 102), 368. Hafer v. Railroad (29 Bull. 68, 4 0. D. 487, 492), 22. Hagerty v. Huddleston (60 O. S. 149), 38, 494. Hall V. Aid Assn. (6 C. C. 137, 3 C. D. 384), 60. Hall V. Geyer (7 CD. 436, 14 C. C. 229), 278. Hall V. Hall (78 0. S. 415), 104. Hall V. Hall (15 O. D. 167, 2 O. L. R. 328), 105, 136. Halleck v. State (11 Oh. 400), 235, 478, 481. Halstead v. Insurance Co. (14 N. P. [N.S.] 113, 24 0. D. 296), 462. Halterman v. Hansard (4 O. App. 268, 22 C. C. [N.S.] 443), 34, 73. Hamilton v. State (34 O. S. 82, 86), 45, 176, 300, 382, 393. Hamilton v. Stone (13 C. C. [N.S.] 556, 23 C. D. 471), 510. Hammel v. Insurance Co. (4 C. C. [N.S.] 380, 14 C. D. 101), 527. Hammond v. State (78 O. S. 15, 23), 191, 282, 286, 456. Hanes v. Railroad (40 O. S. 95), 507. Hanley v. State (12 C. C. 584, 5 C. D. 488, 489), 41, 79. Hanna v. Crozier (16 C. C. [N.S.] 49), 418. TABLE OF CASES XXXVll [References are to pages.] Hanoff V. State (37 O. S. 178, 9), 377, 382. Hargraves v. Miller (16 Oh. 338), 100. Earlan v. Gunderson (20 C. C. [N.R.] 462, 3 0. App. 141, 26 C. D. 441), 295, 506. Harley v. Weber (1 C. D. 300, 2 C. C. ,57), 547. Harman v. Kelley (14 Oh. .502, 509), 39. Harper v. Ualzell (27 Bull. 274, 11 O. D. R. 531), 144. Harrington v. State (19 O. S. 264, 270), 126, 191, 192. Harris v. Carlisle (7 Oh. [Pt. 2] 144), 53. Harris v. Coppock (5 O. L. R. 267, 18 O. D. 266), 225, 559. Harris v. Insurance Co. (1 C. S. C. E. .361, 13 0. D. R. 599), 567. Harris v. Oil Co. (57 O. S. 118, 125), 7. Harris v. Railway (4 O. App. 108, 21 C. C. [N.S.] 209),) 412, 444. Harris v. State (20 C. C. [N.S.] 356, 24 C. D. 187), 372. Harris v. Wallace Co. (84 O. S. 104, 108), 150. Harrison v. Castner (11 O. S. 339, 346), 64, 178, 5.38. Harrison v. Neely (41 O. S. 334), 363. Harrison v. Ohmer (Iddings 132),) 481. Harrison v. Spitz (16 C. C. [X.S.] 493), 147. Harrison Co. v. Blacker (15 N. P. [N.R.] 377, .383), 43. Hart V. Jolinson (6 Oh. 87, 91), 298. Hart V. State (20 Oh. 49, .52), 454. Hartman v. Railway (7 O. App. 296, 28 0. C. A. 119, 30 C. D. 20), 160, 179. Harvey v. Gardner (41 O. S. 642), 30, 541, 542. Hastings v. Allen (14 Oh. 58), 118. Hathaway v. Farley (22 C. C. [N.S.] 462), 409, 414, 4.33. Hathaway v. Gordon (9 C. C. 8, 6 C. D. 39), 6. Haughton v. The Memphis (S W. L. J. 562, 1 0. D. R. 403), 226. Hauser v. Assel (21 C. C. 789, 12 C. D. 3.36), 239. Hauser v. Curran (8 O. D. 495, 5 N. P. 224), 546. Hauser v. Metzger (1 C. S. C. R. 104), 149. Haworth v. Gill (30 O. S. 627), 33. Hayes v. Smith (62 O. S. 101), 380, 448. Hayes v. State (14 C. C. [N.S.] 497, 25 C. D. 57), 194. Ilayman, In re (20 C. C. 667, 10 C. D. 815), 86. Hayner v. Cowden (27 O. S. 292), 177. Haynes v. Haynes (33 0. S. 598>, 103. Hays V. May (Wright 80), .531. Haywood v. Foster (16 Oh. 88), 403. Hazen v. Morrison (14 C. C. [N.S.] 483, 23 C. D. 512), 115. Hazen v. O'Connor (8 C. D. 87, 14 C. C. 529), 139. Hazzard v. Nottingham (Tappan 192), 505. Hazzard v. Wallace (5 C. C. [X.S.J 653, 17 C. D. 147), 142, 140. Heaton v. Eldridge (.")0 O. S. 87), 470. Heckler v. Transfer Co. (17 N. P. [N.S.] 294, 25 O. I). 171), 70. Hedrick v. firogg (S X. p. 24, 10 O. D. 402), 277. Heeney v. Kilbane (.".:i O. s. 4!)9), 138, 519, .520. IleflVon Co. V. Coleman (13 C. C. [N.S] 47, 22 C. J). 2:2), 294. lleinrichsdorf v. Sfon-^ol (12 N. P. [N.S.] 5.5, 22 0. 1). 007), .516. XXXVlll TABLE OF CASES [References are to pages.] Heintz v. Caldwell (9 C. D. 412, 16 C. C. aSO), 211, 207, 395. Heiplej^ V. Green (7 O. D. 497), 481. Heiselv. Ileisel (9 Bull. 110, 8 O. D. R. 6r)3), 547. Heller v. Beal (3 C. C. [N.S.] 268, 13 C. D. 540, 545), 240, 459. Heller v. Hawley (8 C. C. [N.S.] 265, 18 C. D. 678), 81. Helman v. Railway (58 0. S. 400), 279. Hendricks v. Fowler (16 C. C. 600, 9 C. D. 209), 178, 519, 520. Hendrickson v. Toledo (13 C. D. 256, 3 C. C. [N.S.] 3.>5), 37. Hengst V. Cincinnati (9 O. D. 730, 7 K P. 1), 19. Henkel v. Stahl (9 C. D. 397, 18 C. C. 831), 46, 145, 169. Henkle v. McClure (32 O. S. 202), 137, 171, 310. Henn v. Horn (56 O. S. 442), 210. Henning v. Bartz (1 C. C. [N.S.] 389, 15 C. D. 15), 188. Heptasophs v. Fife (16 C. C. [N.S.] 205, 206), 301. Herig v. Harvey (23 C. C. [N.S.] 338), 469. Hermann v. Rolin (8 0. App. 303, 28 0. C. A. 2S9, 30 C. D. 203), 235. Herrmann v. Bank (16 N. P. [N.S.] 47), 543. Hersliizer v. Florence (39 O. S. 516), 406. Hess V. Cliitz (8 O. App. 57, 28 O. C. A. 81, 29 C. D. 497), 354. Hess V. State (5 Oh. 5, 7), 154, 196, 425. Hesse V. Railroad (58 O. S. 167), 171. Hickman v. Insurance Co. (92 O. S. 87), 131. Hicks V. Cubbon (2 A. L. R. 121, 4 O. D. R. 408), 540. Hicks V. Hicks (9 C. C. [N.vS.] 413, 19 C. IX 628), 49, 279. Hicks V. Person (19 Oh. 426, 42), 421. Hicr V. Rtites (91 0. S. 127), 429. Hilbrant v. Simmons (18 C. C. 123, 9 C. D. 56t)), 211. Hildebrand v. Fogle (20 Oh. 147, 158), 565. Hill V. Supervisors (10 0. S. 621), 141, 147. Hillis V. Wylie (26 O. S. 574), 391. Hills V. Ludwig (46 0. S. 373), 67, 147, 278, 311. Hilsinger v. Trickett (K6 O. S. 286), 140, 141, 142, 147. Eiltabiddle v. State (35 0. S. 52), 29, 62, 75, 9.'). Himrod Co. v. Railroad (22 0. S. '^.51), 307, 472. Hinckley v. State (IS 0. D. 19, 4 O. L. R. 408), 23. Ilinkle V. Sage (67 O. S. 256, 62), 88. Hinz V. Ftate (15 C. C. [KS.] 88, 23 C. D. 2?C.), C2. Hirsch V. Cincinnati (21 C. C. [N.S.] ,561), 116, 187, 315, 342. Hirsch v. Hamilton Co. (12 O. D. 679), 532. Hixson v. Rabe (IS C. C. [N.S.] 569), 411, 414. Hobson v. Insurance Co. (2 O. D. <75, 2 N. P. 2LT>), 40. Hodges V. Taft (16 C. C. [N.S.] 1, 25 C. D. 27), 150. IToff V. Fisher (26 O. S. 7), 520. Hoffman v. Gordon (15 O. S. 211, 2181, 55, 1,39, 142. Hoffmaster v. TArvk (78 O. S. 11, 78. Hogg V. Zanesville j\Ifg. Co. (Wright 139), 2T3. Hohly V. Sl.coly (21 C. C. 484, 11 • C. D. 678), 321. TABLE OF CASES XXXIX [References are to pages.] Holland Co. v. Juengling (2 0. App. 20, 21 C. C. [N.S.] 593, 25 C. D. 398), 315, 416, 44S. Hollenbeck v. JIcMahon (28 O. S. 1), 113, 131. Hollister v. Judges (8 0. S. 201), 508. Hollister v. Reznor (9 0. S. 1, 8), 280, 301, 340. Holman v. Riddle (8 O. S. 384), 514. Holtsberry v. Bounds (9 C. C. [X.S.] 510, 19 C. D. 2.>7), 75. Holtz V. Dick (42 O. S. 23), 209, 346, 388, 424. Holzworth V. Koch (26 O. S. 33). 529, 540. Home & Dower Assn. v. Kirk (9 Bull. 48, 8 0. D. R. 592), 544. Home & Dower Assn. v. Reams (7 Bull. 8, 8 0. D. R. 272), 544. Hoop Co. V. Railway (20 N. T. [N.S.J 520, 28 O. D. 373), 135. Hoover v. Jennings (11 0. S. 624), 365. Hoover v. State (91 O. S. 41, 46), 163, 237, 395, 416. Hoover Co. v. Extinguisher Co. (19 C. C. [N.S.] 129), 559. Hoppe V. Parmalee (11 C. D. 24, 23 C. C. 303), 160,200, 310. Hornbeck v. State (35 O. S. 277), 1,59, 265, 293. Horner v. State (8 C. C. [N.S.] 4:i. 18 C. D 588), 21. Horning v. Poyer (IS C. C. 732, C. D. 370), 141, 478. Hosier v. Beard (54 0. S. 398, 407), 56. Hossler v. Trump (62 0. S. 139, 145), 126, 440. Hotel Co. V. Brough (26 C. C. [N.S.] 185), 101. Hotelling v. State (2 C. D. 366, 3 C. C. 630), 2.J7, 318. Hott V. McDonough (3 C. C. 177, 2 C. D. 100), 539. Hough V. Henk (S C. C. 354, 4 C. D. 69), 364, 476, 478. Houpt V. Houpt (5 Oh. 539), Hovekamp v. p:ishoff (4 O. D. 171, 3 N. P. 158), 546. Howard v. Brower (37 O. S. 402), 346. Howard v. Tiiomas (12 0. S. 201, 205),) 522, 523, 526, fi49. Howe v. Railway (10 C. D. 220, 18 C. C. 606), 145. Hoyt v. HcistiT (2 Bull. [Supp.] 5, 7 0. D. R. 420, 425), 361. Hubbard v. Sandusky (6 C. D. 786, 9 C. C. 638), 86. Ilubbell v. Ebrite (7 X. P. 220, 8 0. D. 116), 453. Hubbell V. Hubbell (22 O. S. 208), 352, 353, 354, 359. Hudson v. Yoiglit (9 C. D. 35, 15 C. C. 391), 151. Hudson v. Walcott (39 O. S. 618), 531, 564. Phieston v. Hueston (2 0. S. 488, 492), 272, 280, 281. Huff V. Austin (46 0. S. 386, 387), 42. Hughes V. Lehan (1 C. C. 9, 1 C. D. 5), 131, 465, 495, 519. Huglies V. State (9 C. C. [N.S.] 369, 19 C. D. 237), 68, 287, 370, 452. Ilulet V. Barnett (10 Oh. 459, 401), 513. Hull V. Hull (9 C. D. 19, 16 C. C. 688), 529, .566. Hulse V. State (35 0. S. 421), 125. Hummel v. State (17 O. S. 628), 117, 155, 300, 304, 307, 425. Humphrey, In re (7 C. D. 603, 14 C. C. 517), 368. Hunt V. Caldwell (11 C. D. 562, 22 C. C. 283), 397, 308. Hunt V. Daggett (2 Bull. 22, 7 O. D. R. 260), 298. Hunt V. State (5 C. C. [N.S.] 621, 17 C. D. 16), 92. xl TABLE OF CASES [References are to pages.] Huntington v. Eailway (8 O. L. R. 531), 581. Huntington v. Eogers (9 O. S. 511, 517), 144. Hupp V. Boring (8 C. C. 259, 4 C. D. 560), 337, 338. Hurd V. Eobinson (11 O. S. 232), 523, 558, 568. Hurley v; State (46 O. S. 320, 2), 369, 370, 371, 372. Hutcheson v. McNutt (1 Oh. 14, 25), 241. Hutchins v. Wick (1 C. L. R. 89, 4 O. D. R. 170), 465. Hutchinson v. Bank (3 0, S. 490, 493), 46, 245. Hutchinson v. State (18 C. D. 595, 8 C. C. [N.S]. 313, 23), 228, 283, 285, 483. Hutson V. Hartley (72 O. S. 262), 31, 43, 70, 104. Hyde v. Bank (32 Bull. 217), 540. Ice Co. V. Cinti. (6 0. App. 109, 28 0. C. A. 511, 30 C. D. 296), 86. Her V. Cromer (Wright 441), 181, 376. Illuminating Co. v. Hitchens (3 N. P. [N.S.] 57, 15 0. D. 522), 461. Ingersoll v. Herider (12 Oh. 527), 163, 179, 494. Inglebright v. Hammond (19 Oh. 337), 276, 308, 552. Ingraham v. Hart (11 Oh. 255), 489. Inman v. Jenkins (3 Oh. 271), 506. Insurance Co. v. Applegate (7 O. S. 292), 272. Insurance Co. v. Barnes (15 C. C. [N.S.] 407, 25 C. D. 380), 54. Insurance Co. v. Hock (8 C. C. 341, 4 C. D. 553), 195. Insurance Co. v. Bowersox (6 C. C. 1, 3 C. U. 321), 437, 453. Insurance Co. v. Boyle (21 O. S. 119), ,545, 558. Insurance Co. v. Burke (19 C. C. [N.S.] 289), 438. Insurance Co. v. Carnahan (10 C. D. 225, 19 C. C. 97), 396. Insurance Co. v. Cheever (36 O. S- 201), 126, 137, 262, 272. Insurance Co. v. Eshelman (30 O. S. 647), 403. Insurance Co. v. Fellows (1 Dis. 217, 12 0. D. R. 584), 527. Insurance Co. v. Harmer (2 O. S. 452), 403, 408, 409, 555. Insurance Co. v. Hillard (19 C. C. [N.S.] 78, 2 O. App. 223, 25 C. D. 131), 60. Insurance Co. v. Hook (62 O. S. 2.56), 527. Insurance Co. v. Howie (62 0. S. 204, 10), 89. Insurance Co. v. Howie (68 0. S. 614), 343. Insurance Co. v. Hoyer (66 O. S. 344), 548. Insurance Co. v. Ice Manufacturing Co. (28 0. C. A. 273, 30 C. D. 167), 321. Insurance Co. v. Insurance Co. (5 O. S. 450), 124. Insurance Co. v. Jones (35 O. S. 351), 78. Insurance Co. v. Kelly (24 O. S. 345), 2, 50, 57, 140, 296. Insurance Co. v. LaBoiteaux (5 O. D. R. 242, 4 A. L. R. 1), 69, 215, 430. Insurance Co. v. Maguire (19 C. C. 502, 10 C. D. 562), 234. Insurance Co. v. May (20 Oh. 211), 181, 202, 412. Insurance Co. v. Morrow (8 C. D. 419, 16 C. C. 351), 373, 565. Insurance Co. v. Packet Co. (7 O. D. 571, 6 N. P. 173), 232. TABLE OF CASES xli [References are to pages.] Insurance Co. v. Paver (16 Oh. 324), 64, 100, 101. Insurance Co. v. Romeis (8 C. D. 633, 15 C. C. 697), 68, 101, 113. Insurance Co. v. Rosch (3 C. C. [N.S.] 156, 13 C. D. 491), 44, 101. Insurance Co. v. Schmidt (40 O S. 112), 293, 417. Insurance Co. v. Sherwin-Williams Co. (23 C. C. [N.S.] 390), .',67. Insurance Co. v. Shillito (15 0. S. 559, 572)), 556. Insurance Co. v. Shotts (8 A. L. K. 321, 6 O. D. R. 813), 541. Insurance Co. v. Sickles (2 C. C. [N.S.] 222, 13 C. D. 594), 89. Insurance Co. v. Silberman (24 C. C. [N.S.] 511), 532. Insurance Co. v. Titus (82 O. S. 161), 60. Insurance Co. v. Tobin (32 0. S. 77, 90), 45, 170, 173, 271, 376, 383, 415, 443. Insurance Co. v. Tool Co. (96 O. S. 442), 85. Insurance Co. v. Walrath (9 C. D. 699, 17 C. C. 509), 567. Insurance Co. v. ^^^litman (75 O. S. 312), 87. Insurance Co. v. Wolf (11 C. D. 815, 21 C. C. 202), 550. Insurance Co. v. Wright (33 O. S. 533), 198, 393. Insurance Co. v. Zimmer (97 O. S. 14), 60. Institute v. Gibbons (3 Bull. 581, 7 O. D. R. 516), 501. Interstate Co. v. Bird (10 C. D. 211, 18 C. C. 488), 60. Interurban Co. v. Haines (8 C. C. [N.S.] 77, 18 C. D. 443), 264. Interurban Co. v. Haines (12 C. C [N.S.] 17, 21 C. D. 265), 370, 398. Iron Co. V. Harper (41 0. S. 100), 6. Iron Co. V. Keynes (56 O. S. 501), 561. Iron Co. V. Street (19 Oh. 300), 290. Iron & Steel Co. v. Wiegand (15 C. C. [N.S.] 417, 24 C. D. 556), 169. Irwin V. Scheuerer (6 C. D. 815, 10 C. C. 568), 517. Irwin V. Scheuerer (10 C. D. 827, 19 C. C. 650), 503. Ish V. Crane (13 0. S. 574), 10. Jacks V. Adamson (56 0. S. 397), 86, 509. Jacob V. Canine (7 0. App. 268, 27 0. C. A. 65, 28 C. D. 110), 14.3. Jackson v. Ely (57 O. S. 450), 362, 531. Jackson v. Foundry & Machine Co. 6 0. App. 171, 27 0. C. A. 81, 28 C. D. 126), 511. Jackson v. State (38 O. S. 585), 197. Jackson v. State (39 0. S. 37), 252. Jackson Co. v. Hathaway (7 C. C. [N.S.] 242, 17 C. D. 745), 106. James v. Bostwick (Wright 142), 532. James V. Hotel Co. (6 O. App. 162, 28 0. C. A. 446, 30 C. D. 259), 511. Jane Louisa v. Williams (5 W. L. J. 8, 1 0. D. R. 228), 458. Janes v. Hoehn (3 C. C. 433, 2 C. I). 245), 514. Jarmusch v. Steel Co. (3 C. C. [N.S.] 1, 13 C. D. 122), 1.50. Jarvis v. Jolinson (2 0. D. R. 372, 2 W. L. M. 389), 178. Jaspers v. MaUon (11 Bull. 166, t) O. IX R. 184), 11,5. .JcfTers V. State (10 C. D. 832, 20 C. C. 294), 94. Jenkins v. Railroad (2 Dinney 49, 3 (jiaz. 117), 123. xlii TABLE OF CASES [References are to pages.] Jennings, Ex parte (60 O. S. 319), 331, 386. Jennings v. Haynes (1 C. D. 13, 1 C. C. 22), 245, 26n, 310. Jessup V. Dennison (2 Dis. 150, 13 O. D. R. 93), 530. Jewelry Co. v. Hazen (6 C. C. [N.S.] 606, 17 C. D. 679), 299, 404, 440. Jolm V. Bridgman (27 0. S. 22), 42, 164, 210, 229, 340, 404, 406. John V. Jolin (Wright 584), 458. John V. State (5 C. C. [N.S.] 200, 16 C. D. 723), 238. John V. State (16 C. C. [N.S.] 316), 228, 395, 483. Johnson v. Connable (41 0. S. 178), 356. Johnson v. Corrington (3 Bull. 1139, 7 0. D. R. 572), 210. Johnson V. Dudley (4 0. D. 243, 3 N. P. 196), 33. Johnson v. Pierce (16 0. S. 472), 521, 566. Johnson v. Spiegel (4 C. C. 388, 2 C. D. 612), 126, 440. Johnson v. Stedman (3 Oh. 94), 451, 499. Johnston v. Haines (2 Oh. 55), 502. Jones V. Bank Co. (95 O. S. 253), 121, 124. Jones V. Columbus (15 O. D. 691, 2 0. L. R. 402), 250, 253. Jones V. Goode (7 C. C. [N.S.] 589, IS C. T). 475), 386. Jones V. Greaves (26 O. S. 2), 90, 100, 101, 102. Jones V. Lloyd (33 O. S. 572), 5G1. Jones V. Pickle (7 O. App. 33, 27 0. C. A. 413, 29 C. D. 364), 82, 434. Jones V. State (51 0. S. 331)), 34, 91, 94, 190, 318. Jones V. State (54 0. S. 1), 172, 372, 374. Jones V. State (20 C. C. [N.S.] 542), 233, 320. Jones V. Tiffimons (21 O. S. 596), 526. Jones Law Petition, In re (12 N. P. [N.-S.] 449), 110. Judge V. Benefit Assn. (10 C. C. [N.S.] 473, 20 C. D. 133), 40, 71, 74. Kahn v. Times Star (8 K P. 616, 10 0. D. 599), 41, 182. Kammann v. Kammann (6 0. App. 455, 26 C. C. [N.S.] 60, 29 C. D. 49), 136. Kandar v. Aetna Co. (10 C. C. [N.S.] 449, 20 C. D. 260), 60. Karb v. State (54 0. S. 383, 397), 144. Katafiasz v. Electric Co. (14 C. D. 127, 1 C. C. [N.S.] 129), 240, 372. Kathman v. Carlisle Co. (4 0. L. R. 135, 16 O. D. 765), 234. Kazer v. State (5 Oh. 280), 518. K. B. Co. V. Dixon (19 C. C. [N.S.] 196), 5. Keck V. Cincinnati (3 N. P. 253, 4 O. D. 324), 20. Keck V. Jcnney (1 Clev. L. R. 90, 4 O. D. R. 173), 4. Keefe v. Evenden (16 C. C. [X.S.] 516, 25 C. D. 68), 86. Keel V. Rudisell (13 C. C. 199, 7 C. D. 464), 70. Kceveny v. Ottman (26 Bull. 65, 11 0. D. R. 301), 67. Keiper v. Selfe (22 C. C. [X.S.] 507), 473. Kelch V. State (55 O. S. 146), 97, 98, 100. Kelley v. Few (18 Oh. 441), 551. Kelly V. Howell (41 0. S. 438), 135. Kelly V. Ingersoll (1 C. L. R. 210, 4 0. D. R. 284), 461. Kelly V. Wiseman (2 Disney 418), TABLE OF CASES xliii [References are to pages.] Kennedy v. Ankrim (Tappan 40), 482. Kennedy v. Dodge (10 C. D. 360, 10 C. C. 425), 364, 47r,, 476, 477, 47n. Kent V. Bierce (6 Oh. 336, 352), 20. Kent V. State (42 0. S. 426), 303, 304, 380, 383, 515. Keplinger v. Slierrick (Wright 103), 189. Kerr v. Lydecker (51 0. S. 240, 247), IS. Kerr v. Paul (37 Bull. 171), 525. Ketteman v. Metzger (3 C. C. [X.S.] 224, 13 C. T). 61), 117, 326, 435. Keys V. Gore (42 0. S. 211), 355. Kezartee v. Cartmell (31 O. S. 522), 508. Kilbourn v. Fury (26 0. S. 153), 277, 456, 502. Kilbreath v. Bates (38 0, S. 187, 195), 18. Kile ]\Ifg. Co. V. Peterson (16 C. C. [N.S.] 330), 449. Killits V. State (19 C. C. 740, 10 C. D. 722), 341, 368. King V. Barrett (11 0. S. 261), 344. King V. Herb (9 C. D. 797, IS C. C. 41), 133. King V. Kenny (4 Oh. 79, 83), 485, 494. King V. New London (8 N. P. [X.S.] 34, 19 0. D. 411), 518. . King V. Wicks (20 Oh. 87), 394. Kingsborough v. Tousley (56 O. S. 450), 48, 512. Kinney v. Christy (3 0. L. R. 385, 16 O. D. 795), 304. Kinsman v. Loomis (11 Oh. 475, 477), 39. Kirchner v. Smith (7 C. C. [N.S.] 22, 18 C. D. 45), 147. Kirk V. Mo wry (24 0. S. 581), 227. Kirk V. Stevenson (59 0. S. 556), 108. Kirkbride v. Railway (22 C. C. [X.S.] 495, 501), 119. Kittredge v. Cincinnati (6 C. C. [N.S.] 646, IS C. D. 100), 448. Kittredge v. Cincinnati (2 N. P. [X.S.] 6, 14 O. D. 504), 409. Klaustermeyer v. Trust Co. (89 O. S. 142), 39. Klein v. Thompson (19 0. S. 569), 208, 310. Kleyboltc v. BulTon (89 O. S. 61), 201. Kling V. Bordner (65 O. S. 86),- 471. Klunk V. Railway (74 O. S. 125), 70, 71, 74, 100. Knapp V. Harold (1 C. C. [X.S.I 469, 15 C. D. 213), 19.3. Knauber v. Wunder (6 A. L. R. 367, 5 0. D. R. 516), 59. Kneipper v. Richards (7 C. C. [X.S.] 581, 16 C. D. 245), 129, 300, 54!). Jolin V. John (Wright 584), 458. Knight V. State (54 0. S. 365), 170, 175, 20G, 291, 303. Knights V. Everding (20 C. C. 689, 11 C. D. 4191, 33, 60, 140, 143. Koch V. Meyers (7 O. App. 306, 29 O. C. A. 142, 30 C. D. 4.39), 136, 154. Kohl V. Hannaford (4 A. L. R. 372, 5 0. D. R. 306), 133. Kohn V. State (14 C. C. [X.S.] 31, 23 C. D. 417), 157, 291. Kohn V. State (12 C. C. [X.S.] 197, 22 C. D. 711), 2.50, 404, 418. Kolling V. Bennett (IS C. C. 425, 10 C. D. 81), 102. Koons V. State (36 O. S. 195), 410, 424, 425, 426, 4.34, 4.-)8. Kornfcld v. Kornfeld (10 C. C. [X.S.] 400), 306. Korn/ield v. Horn field (22 C. C. [X.S.] 363), 205. Kraig v. Hughes (11 O. 1). G62, 8 X. P. G80), 542. xliv TABLE OF CASES [References are to pages.] Kramer v. Blake (18 C. C. [N.S.] 77, 81), 447. Kratz V. Risch (13 N. P. [N.S.] 478), 561. Krause v. Morgan (53 O. S. 26), 142, 270. Krebs Co. v. Studor (11 Bull. 190, 9 0. D. R. 109), 506. Kroll V. Close (82 O. S. 190), 112. Kuester v. Yeoman (14 C. C. [N.S.] 264, 22 C. D. 476), 178. Kugler V. Wiseman (20 Oh. 361), 439, 478, 481. Kuhl V. Reichert (2 C. C. [N.S.] 42, 15 C. D. 693), 529. Kuhl Co. V. Mack (12 C. D. 177, 17 C. C. 663), 212. Kuhn V. Miller (Wright 127), 505. Kuhn V. Spice Co. (13 C. C. 547, 7 C. D. 289), 242. Kuhn V. Spice Co. (8 N. P. 686, 10 O. D. 292), 109. Kyser v. Cannon (29 0. S. 359), 54, 58. Laidlaw Co. v. Miller (12 C. C. [N.S.] 246, 21 C. D. .559), 449. Lamb v. Stewart (2 Oh. 230), 394. Lambert v. Mustard (18 0. S. 419), 508. Lambright v. State (9 C. C. [N.S.] 151, 19 C. D. 93), 182. Lamping v. Cole (5 W. L. M. 187, 2 O. D. R. 737), 560. Lampreclit v. Crane (5 O. D. 753, 4 Bull. 1107), 177. Lancken v. Piatt (20 C. C. [N.S.] 9), 82. Landman v. Sauerston (24 C. C. [N.S.] 478), 561. Langrueter v. Iroquois Co. (10 N. P. [N.S.] 81, 20 O. D. 292), 143. Lanman v. Piatt (2 W. L. J. 426, 1 O. D. R. 135), 518. Lapham v. Spink (24 C. C. [N.S.] 348), 269. Larimore v. Wells (29 0. S. 13), 32, 81, 143, 279. LarAvell v. Hanover Society (40 O. S. 274), 489. Larwill v. Kirby (14 Oh. li. 189. Lasance, In re (7 O. D. 246, 5 N. P, 20), 456. Laudt V. Parchmann (7 O. App. 164, 29 0. C. A. 63), 471. Laughlin v. State (18 Oh. 99, 103), 337. Lawrence v. McGregor (Wright 193), .534, 558. Layman v. Brown (12 O. D. R. 496, 1 Dis. 75, 77), 3. Leach v. Calder (12 0. D. 211), 402. Lebanon v. Schwartz (4 0. App. 173, 25 C. C. [N.S.] 273), 168, 169, 3!)3. Lebanon v. Warren Co. (9 Oh. 80), 277. LeBaron v. Skeels (24 C. C. [N.S.] 505), 84. Lee V. Benedict (23 C. C. [N.S.] 561), 473. Lee V. State (21 0. S. 151), 377, 381. Leedle v. Christie (15 C. C. [N.S.] 385, 24^ C. D. 572), 4, 53. Lefevre v. State (50 0. S. 584), 247, 248, 249. Legg V. Drake (1 0. S. 286), 367, 368, 374, 378, 379. Leggett V. State (15 Oh. 283), 260. Leisy v. Zuellig (7 C. C. 423, 6 C. D. 175), 56, 70, 74. Lcmmon v. Hutch ins (1 C. C. 388, 1 C. D. 217), 501. Leonard v. State, ex rel. (3 0. App. 313, 20 C. C. [N.S.] 340), 110, 363. Lewis V. Bank (12 Oh. 132, 148), 296. Lewis V. Gaylord (1 W. L. J. 487, 1 0. D. R. 73), 555. TABLE OF CASES xlv [References are to pages.] Lewis V. State, ex rel. (50 0. S. 37), 4!)4. Lewistown Co. v. Stone Co. (92 O. 5. 76), 122. Lieblang v. Railway (4 C. C. [N.S.] olfi, 16 C. D. 30), 2, 148. Lieblang v. State (IS C. C. [N.S.] 173), 422. Liggitt V. Wing (31 Bull. 85), 501. Light & Power Co. v. Bell (5 C. C. [X.S.] 321, 16 C. D. 691), 73. Liles V. Gaster (42 O. S. 631), 387. Lillie V. Bates (3 C. C. 94, 2 C. D. 54), 530. Lime Co. v. Smith (11 C. C. 213, 5 C. D. 79), 275. Limerick v. State (14 C. C. 207, 7 C. D. 664), 156, 158, 267, 282. Lindsey v. State (38 O. S. 507), 193, 197. Lindsey v. State (69 0. S. 215), 341. Lingafelter v. State (8 C. C. [N.S.] 537, 18 C. D. 800), 206. Lippert v. Page (13 C. C. [N.S.] 105, 22 C. D. 38), 291. List & Son Co. v. Chase (80 0. S. 42), 56. Lloyd V. Giddings (Wright 694), 503. Lockwood V. Wildman (13 Oh. 430), 225. Loeffner v. State (10 0. S. 598), 32, 97, 98. Logan V. Gray (Tappan 69), 500. Loney v. Hall (8 O. App. 154, 28 6. C. A. 14, 29 C. D. 453), 92, 131. Long V. Moler (5 0. S. 271), 539. Long V. Mulford (17 O. S. 484, 503), 8. Longworth v. Bank (6 Oh. .537), 562. Loomis V. Bank (1 Disney 285), 273. Lore V. Truman (10 O. S. 45), 507. Loudenback t-. Collins (4 O. S. 251, 259), 308. Lou, 38. Mustill V. Thornton (22 C. C. 60S, 12 C. D. 504), 371, 388. Myers v. Lucas (16 C. C. 545, 8 C. D. 431), 431. Myers v. Parker (6 O. S. 501), 527. Myers v. Standart (11 O, S. 29), 269. Myers v. State (46 O. S. 473, 402), 21. Myres v. Walker (9 O. S. 558), 360. N Xassr V. Upton (4 O. App. 202, 25 C. C. [N.S.] 193), 102. National Union v. Rothert (39 Bull. 143), 302. Nave V. Marshall (9 O. D. 415, 6 N. P. 488), 526. Navigation Co. v. Eagle (29 0. S. 238), 22, 157, 493. Nearing v. IL-iilway (0 C. D. 064, 9 C, C. 596), 503. TABLE OF CASES [References are to pages.] Neff V, Cincinnati (32 O. S. 215), 63, 64, 307. Negley v. Jeffers (28 O.- S. 90), 539, 548. Neifeld V. State (3 C. C. [X.S.] 551, 13 C. D. 246), 312, 452. Neil V. Cherry (3 W. L. M. 31, 2 O. D. R. 417), 360. Neil V. Trustees (31 0. S. 15), 532. Neilsen v. Taylor (16 C. C. [X.S.] 124), 276. Neininger v. State (50 O. S. 394), 528. Nelson v. Berea (21 C. C. 781, 12 C. D. 329), 19. Neville v. Hambo (!' Disney 517), 358. Newberger v. Finney (9 C. D. 720, 17 C. C. 215), 468, 486. Newburg v. Munshower (29 O. S. 617), 141. Newman v. Cinciniaati (18 Oli. 323, 334), 113, 131. Newton v. Taylor (32 O. S. 399), 543. Nichols V. State (8 O. S. 435, 439), 212. Nichols V. State (1 W. L. J. 394, 1 0. D. R. 55), 252. Nicholson v. Traction Co. (14 N. P. [N.S.] 177, 23 0. D. 151), 447. Nickels V. State (22 C. C. [X.S.I 236), 90, 95. Nicola V. Box Co. (13 O. D. 753, 1 N. P. [N.S.] 63), 532. Niemes v. Niemes (97 O. S. 14.5), 124, 432, 433. Nienaber v. Tarvin (9 0. J). 501, 7 N. P. 110), 490. Nieswonger v. Insurance Co. (Id- dings 154), 22. Ni.xon V. Chatfield (2 C. S. C. R. 76, 13 0. D. R. 778), 463. Nobil V. Railroad (16 C. C. [N.S.] 335), 119. Nolan V. Haberer (3 O. App. 45, 21 C. C. [N.S.] 57, 26 C. D. 59), 357. Noland v. State (19 Oh. 131), 117, 334. Nolte V. Hill (36 0. S. 186), 148, 554. Nolte V. Hill (2 Bull. 86, 7 0. D. R. 297), 312, 557. Norman v. Plumb (12 C. C. [N.S.] 483, 21 C. D. 605), 479. Norman v. Will (5 W. L. J. 508, 1 O. D. R. 261), 244. O'Brien v. Cleveland (1 C. L. R. 100, 4 O. D. R. 189), 495. O'Brien v. Hospital Association (96 0. S. 1), 453. Oehler v. Walsh (7 C. C. [N.S.] 572, 18 C. D. 446), 30. O'Harra v. Hunt (19 Oh. 460), 328. Oil Co. V. Innis (12 C. C. [N.S.] 223, 18 C. D. 778), 9 Oil Co. V. Kclley (6 C. D. 470, 9 C. C. 511), 24. Oil Co. V. ]\IcCrory (14 C. C. 304, 7 C. D. 344), 270, 417, 554, 555, 557. Oldliam V. Broom (28 0. S. 41), 551. Olinger v. JIcGuffey . (55 O. S. 061), 85, 564. Oliver, In re (9 N. P. [N.S.] 178, 20 0. D. 64), 357. Oliver v. IMoore (::3 O. S. 473), 7, 76. O'Meara v. State (17 O. S. 515), 29. Organ Co. v. Biggs (22 C. C. 392, 12 C. D. 497), r>?>, C.">. Orlinkowski v. Glowik (22 C. C. [N.S.] 206), 448. Ormsbee v. Machir (20 O. S. 295), 566. 0"Rourke v. Rapp (14 N. P. [N.S.] 23, 24 O. D. 528), 532. TABLE OF CASES li [References are to pages.] Osborn v. McClelland (43 0. S. 284, '. Parmlee v. Adolph (28 0. S. 10), 305), 81. Osseforth v. Traction Co (9 N. P. [N.S.] 360, 20 O. D. 285), 141. Ossman v. Schmitz (4 C. C. [N.S.] 502, 14 C. D. 709), 63, 525. Ott V. Railway (10 C. D. 85, 18 C. C. 395), 490. Otte V. State (19 C. D. 203, 9 C. C. [N.S.] 293, 306), 80. Ousley V. Witheron (7 C. D. 448, 13 C. C. 298), 103. Oviatt V. State (19 0. S. 573), 301. Packet Co. v. Britton (1 C. C. [N.S.] 33, 15 C. D. 153), 179. Packet Co. v. Fogarty (9 C. C. 418, 6 C. D. 375), 493. Paddock v. Adams (56 O. S. 242), 163, 356, 366, 542. Page V. Railroad (4 W. L. M. 644, 2 0. D. R. 716), 534. Page V. Zehring (6 Bull. 299, 8 0. D. R. 211), 364, 476, 478. Paint Co. v. Bank (9 C. C. [KS.l 150, 19 C. D. 485), 53. Paint Co. v. Swihart (16 C. C. [N.S.] 16, 27 C. D. 283), 160. Painter v. Painter (IS Dh. 247), 528, 558. Palmer v. Cowie (7 C. C. [N.S.] 46, 17 C. D. OIT), 448. Tahror v. Ilumiston (S7 0. S. 401^ 137, 557. Palmer v. Yarrington (1 0. S. 253), 300, 301. I'appalardo v. Pappalardo (6 O. App. 291, 28 0. C. A. 449, 30 C. D. 285), 500. Parker v. Blackwelder (7 C. C. 140, 3 C. D. 700), 515. Parker v. Dover (18 N. P. [N.S.] 465), 92, 341. Parker v. Miller (9 Oh. 108), 520. 123. Parsons v. Parsons (52 O. S. 470), 538. Patterson v. Lamson (45 O. S. 77), 526. Patterson v. State (96 0. S. 90), 285, 304, 507, 508. Patterson v. State (11 C. D. 602), 206. Patterson v. State (2 W. L. M. 333, 2 0. D. R. 304), 79. Patterson v. State (Iddings 130), 24. Patton V. State (6 0. S. 467), 282, 283, 287. Paulin V. Sparrow (91 0. S. 279), 512. Pavey v. Pavey (30 O. S. 600), 422. Pavey v. Vance (56 0. S. 162), 75. Peabody v. Kelly Co. (Iddings 159), 566. Peat V. Norwalk (5 C. C. [N.S.] 614, 16 C. D. 161), 107. Peck V. Beckwith (10 0. S. 497), 548. Peck V. Osborn (16 C. C. [X.S.] 592, 27 C. D. 626), 471. Pelton V. Bemis (44 O. S. 51, 58), 150. Pelton V. Platner (13 Oh. 209), 505. Peney v. Gilliland (Wright 38), 520. Pen Co. V. Juengling (2 0. App. 20, 21 C. C. [N.S.] 593, 25 C. D. 398), '315, 416, 448. Penn. Co. v. Files (65 O. S. 403), 171, 266, 427, 428. Penn. Co. v. Hickley (11 C. D. 379, 20 C. C. 668), 220. Penn. Co. v. Loft is (72 O. S. 288), 549. Penn. Co. v. IVlKann (54 O. S. 10), 191. Penn. Co. v. Muiioney (22 C. C. 469, 12 C. D. 366), 155, 162, 179, 297, 312, lii TABLE OF CASES [References are to pages.] Penn. Co. v. Miller (35 O. S. 541), 124. Penn. Co. v. Rathgeb (32 0. S. 66), 133, 134. Perm. Co. v. Rossman (13 C. C. Ill, 7 C. D. 119), 175. Penn. Co. v. Trainer (12 C. C. 66, 5 C. D. 519), 173, 228, 395, 483. Penn. Co. v. Yoder (15 C. D. 32, 1 C. C. [N.S.] 283), 61, 150. Pennywit v. Foote (27 O. S. 600) ^ 513. . Penquite v. Lawrence (11 O. S. 274), 119, 132. Pepper v. Sidwell (36 0. S. 454), 145. Perkins v. Commissioners (88 O. S. 495), 130. Perkins v. Mobley (4 O. S. 668), 391. Perkins v. State (3 C. D. 292, 5 C. C. 597), 428. Perry v. Mfg. Co. (18 N. P. [N.S.] 293, 26 0. D. 301), 177. Perry v. Q-Neil (78 0. S. 200), 54, 55, 76. Peters v. McWilliams (36 O. S. 155), 12. Petition, In re (7 O. App. 222, 27 0. C. A. 589, 28 C. D, 347), 499. Pfirman, In re (1 N. P. 127, 1 O. D. 177), 368. Phelps V. Schroder (26 O. S. 549), 76, 498. Phelps V. Smith (22 O. S. 189), 198. Phillips V. Elwell (14 O. S. 240), 375, 520. Phillips V. Insurance Co (13 C. C. 679, 6 C. D. 266), 380. Piano Co. v. Edgar (12 C. C. [N.S.] 37, 21 C. D. 295), 547. Piano Co. v. Piano Co. (85 O. S. 196), 49. Piano Co. v. Stewart (25 C. C. [N.S.] 270, 27 C. D. 428), 13, 133. Piatt V. Longworth (27 O. S. 159), 148. Piatt V. St. Clair (6 Oh. 227), 506. Pierce v. Andrews (7 C. D.. 105, 13 C. C. 513, 517), 116. Pierce v. White (22 Bull. 98, 10 O. D. R. 552), 13, 405. Pigman v. State (14 Oh. 555), 213. Piqua V. Morris (98 O. S. 42), 122. Piscopo V. Railway (19 C. C. [N.S.] 298), 13. Piso Co. V. Voight (6 0. D. 479, 4 N. P. 347), 24. Pitts V. Langdon (2 O. D. 481, 7 N. P. 304), 546. Place V. Taylor (22 0. S. 317), 38. Piatt V. Scribner (18 C. C. 452, 9 C. D. 771), 57, 149, 549. Plumb V. Robinson (13 O. S. 298), 544. Pollock V. Cohen (32 O. S. 514), 473, 547. Pollock V. Pollock (2 C. C. 143, 1 C. D. 410), 4. Poorman v. Crane (Wright 347), 505. Porter v. Wagner (36 O. S. 471), 507. Post V. Kinney (3 Bull. 118, 7 O. D. R. 4.39), 564. Potter V. Myers (31 O. S. 103), 510. Potter V. Potter (27 O. S. 84), 82, 84. Powell V. Benster (58 0. S. 735), 234. Powell V. Powell (78 O. S. 331), 3.52, 353, 355. Powell V. State (84 0. S. 165), 33, 81. Powers V. Armstrong (36 O. S. 357), 54, 149. Powers V. Boehme (17 C. C. [N.S.] 37), 125. TABLE OF CASES liii [References are to pages.] Powers V. Railway (33 0. S. 429), 216, 301, 312, 436. Powers V. Reed (19 O. S. 189), 498. Pratt V. State Cl9 0. S. 277), 168, 392. Premack v. State (11 C. C. [X.S.] 364, 20 C. D. 828), 91, 119. Prentice v. Toledo (11 C. C. [N.S.] 299, 20 C. D. 568), 109. Prescott V. Albrecht (21 C. C. [N.S.] 198), 371. Prescott V. Koblitz (25 C. C. [N.S.] 84), 172. Preston v. Bowers (13 O. S. 1), 215, 288, 293, 311. Price V. Coblitz (21 C. C. 732, 12 C. D. 34), 77, 293. Price V. Railroad (13 N. P. [N.S.] 65), 554. Price V. State (18 O. S. 418), 252. Printing Co. v. Green (52 O. S. 487), 509. Proctor V. Snodgrass (5 C. C. 547, 3 C. D. 268), 562, 565. Protective Assn. v. Roebling (18 N. P. [N.S.] 385, 26 0. D. 219), 387. P^TOvision Co. v. Blaha (18 C. C. [N.S.] 33), 121. Provision Co. v. Hague (20 C. C. [N.S.] 34), 322. Provision Co. v. Limmermaier (4 C. D. 240, 8 C. C. 701), 168, 311. Publishing Co. v. Maloney (50 O. S. 71, 79), 189. Publishing Co. v. Valentine (9 C. C. 387, 6 C. D. 323), 6, 189. Pugh V. Holliday (3 0. S. 284), 245. Pugh Printing Co. v. Supervisors (22 C. C. 584, 12 C. D. 477), 37. Pullan V. Cocliran (6 Bull. 390, 6 0. D. R. 1070), 556, 557. Pullman Co. v. Willett (7 C. C. [X.S.] 173, 17 C. D. 649), 218, 269, 452. Putnam Co. v. Auditor (1 0. S. 322), 8. Quarry Co. v. Clements (38 0. S. 587), 554, 560. R Raab's Estate, In re (16 0. S. 273), 357. Radcliffe v. Radcliffe (15 C. C. 284, 8 C. D. 278), 146. Rader v. Basch (18 C. C. [N.S.] 23), 2. Ragan v. Sherman, 17 C. C. [N.S.] 523, 24 C. D. 214), 77. Rahe, In re (12 0. D. 590), 215, 359, 403. Railway Co. v. Ackworth (6 C. D. 622, 10 C. C. 583), 106. Railroad v. Anderson (21 C. C. 288, 11 C. D. 765), 200. Railway v. Andrews (58 0. S. 426), 134. Railroad v. Bailey (11 O. S. 333), 412, 415, 444. Railroad v. Ball (5 O. S. 568), 436. Railway v. Ball (5 C. C. [N.S.] 321, 16 C. D. 691), 414, 429. Railway v. Bateman (16 C. C. 162, 8 C. D. 220), 140. Railway v. Beall (6 C. D. 250, 13 C. C. 605), 200. Railway v. Board (11 C. D. 406, 20 C. b. 681), 168. Railway v. Beckwith (12 C. D. 559), 121, 431. Railway v. Bixl.T (12 C. D. 653), 122. Railroad v. Boh-ii (76 O. S. 376), 317, 323, 338. Railway v. Boltz (16 C. C. [N.S.] 383), 378, 394, 447. liv TABLE OF CASES [References are to pages.] Railway v. Boswell (7 C. C. [N.S.] 413, 18 C. D. 694), 146. Eaihvay v. Botefuhr (20 C. D. 67, 10 C. C. [N.S.] 281), 179. Eailroad v. Brown (26 0. S. 223, 233), 5C3. Railroad v. Burkham (7 0. App. 434, 27 O. C. A. 366, 29 C. D. 176), 117. Railroad v. Burr (82 0. S. 129), 241. Railway v. Burroughs (6 O. D. 527, 5 N. P. 12), 115. Railway v. Butler (3 C. C. [KS.] 449, 13 C. D. 459), 240. Railroad v. Campbell (4 0. S. 583), 436. Railroad v. Campbell (36 O. S. 647), 271. Railroad v. Cavagna (0 C. C. 600, 3 C. D. 60S), 120. Railroad v. Cincinnati (16 Bull. 367, 9 0. D. R. 605), 562. Railroad v. Cleveland (15 C. C. [N.S.] 193, 23 C. D. 482), 8; Railway v. Cobb (35 0. S. 94), 219. Railway v. Collins (10 C. C. [N.S.] 486, 20 C. D. 110), 271. Railroad v. Commissioners (63 O. S. 23), 318. Railway v. Conner (6 C. C. [N.S.] 301, 17 C. D. 229), 29, 445. Itailway v. Cornwall (14 C. C. [X.S.] 209, 24 C. D. 124), 73, 106. Railroad v. Crawford (24 0. S. 631), 48, 105, 123, 133, 134. Railroad v. Criss (7 C. D. 632, 15 C. C. 398), 310. Railway v. Cronin (38 0. S. 122, 125), 459. Railroad v. Cunnington (39 0. S. '327), 246. Railroad v. Davider (17 C. C. [N.S.] 470), 146. Railroad v. Defiance (52 O. S. 262), 409. Railway v. DeOnzo (87 O. S. 109), 321, 322. Railroad v. Dodds (1 C. S. C. R. 47, 13 0. D. R. 407), 535. Railway v. Dooley (13 C. C. [N.S.] 225, 22 C. D. 655), 118, 200. Railway Co. v. Ellis (6 C. D. 304, 13 C. C. 704), 1.19, 173, 3^8. Railway v. Everett (8 C. D. 210, 15 C. C. 181), 412. Railway v. Everett (10 C. D. 493, 19 C. C= 205), 125, 414, 415, 439. Railroad v. Fieback (87 O. S. 254), 42. Railway v. Fleming (30 O. S. 480), 123, 133. Railroad v. Fredenbur (2 C. D. 15, 3 C. C. 2:), 175. Raihvr.y Co. v. Frye (SO 0. S. 289), 100. Railway v. Gaffney (65 O. S. 104, US), 1D9. Railway v. Gaffney (9 C. C. 32, 6 C. D. 94, 7), 173, 174, 316, 430. Railroad v. Gardner (45 0. S. 309), 436. Railway v. Gatens (18 C. C. [X.S.] 173), 427, 430. Railroad v. Gibson (41 O. S. 145), 147. Railroad v. Gilbert (14 C. D. 181, 2 C. C. [N.S.] 432), 306. Railway v. Godwin (12 C. D. 537), 168, 169, 309, 431. Railroad v. Gorsuch (8 C. C. [N.S.] 297, 18 C. D. 468), 309, 438. Railway v. Gulla (15 C. C. [N.S.] 540, 24 C. T>. 101), 29. Railway v. Hall (16 0. D. 62, 3 0. L. R. 364), 371. Railway v. Hamilton (3 C. C. 455, 2 C. D. 259), 109. TABLE OF CASES Iv [References are to pages.] Railway Co. v. Hart (6 C. D. 731, Railway v. Lott (6 C. D. 447, 10 10 C. C. 411), 75, 106. Railroad v. Hatch (6 C. C. 230, 3 C. D. 430), 24. Railway v. Helber (HI 0. S. 231), 7. Railway v. Herrick (49 0. S. 25), 218, 200, 2G2, 298. Railway v. Hobart (13 C. C. [N.S.] 592, 22 C. D. 154), 143, 322, 412, 427. Railroad v. Hoffliines (46 O. S. 643), 14, 16, 22. Railway v. Hudson (22 C. C. 586, 12 C. D. GOD, 10, 296, 323, 324. Railway v. Hunter (10 C. C. [N.S.] 504, 12 C. D. 769), 295, 447. C. C. 249), 440. Railroad Co. v. McClellan (69 O. S. 142), 73. Railway v. McKelvey (5 C. D. 561, 12 C. C. 426), 151, 1.59, 315. Railway v. McLean (1 C. C. 112, 1 C. D. 67, 69), 270. Railroad v. Mc^Millan (37 O. S. 554), 134. Eailroad Co. v. Mackey (53 0. S. 370, 383), 29. Eailway v. Mara (26 O. S. 18.'), 264. Railroad v. Marsh (63 O. S. 236), 134, 216, 407, 434. Railway v.. Isaacs (10 C. D. 49, 18 j Railway v. Mendenh,'.! (7 0. App. C. C. 177), 236. Railway v. James (18 C. C. [N.S.] 210, 1 0. App. 335), 174. Railway v. Janeski (4 C. D. 218, 12 C. C. 685), 122, 138. Railway v. Kelley (6 C. C. 155, 3 C. D. 393), 303. Railroad v. Kelly (10 C. C. 322, 6 C. D. 555), 174. Railway v. Kiner (2 O. App. 82, 17 C. C. [N.S.] 431, 25 C. D. 175), 410. Railroad v. Kistler (66 0. S. 326), 138, 139. Railway v. Klute (8 C. C. [N.S.] 409, 19 C. D. 702), 201. Railway v. LaTourette (2 C. C- 279, 1 C. D. 486), 534. Eailway v. Levy (8 C. C. [N.S.] 353, 18 C. D. 23), 106. Railway Co. v. Linn (77 O. S. 615), 100. 356, 27 0. C. A. 376), 133. Railway v. Mills (16 C. C. [N.S.] 62), 143. Railway v. Moore (33 O. S. 384, 391), 18. Railway v. Moreland (12 C. D. 612), 125, 370, 445, 449. Railroad v. Morey (47 O. S. 207), 418, 454. Railroad v. MoAvery (36 0. S. 418), 73. Railway v. Mulcahy (9 C. D. 82, 16 C. C. 204), 444. Railway v. Murphy (50 0. S. 135), 135. Railroad v. Nobil (85 0. S. 175), 112. Railroad v. Nolthenius (40 0. S. 376), 450. Railroad v. Parker (9 C. C. [N.S.] 28, 19 C. D. 1), 173, 177, 246, 260, 323. Railway v. Litz (6 C. 1). 285, 18 C. Railroad v. Terkins (22 C. C. 630, C. 646), 310. Railroad v. Lockwood (72 O. S. 586), 121, 138. 12 C. n. 676), 323. Railroad v. Pfau (9 Bull. 200, 8 O. D. R. 691), 496. Railway v. Longworth (30 O. S. , Railroad v. Picksley (24 O. S. 654), 108), 323. 123, 135. Ivi TABLE OF CASES [References are to pages.] Railway v. Pifer (20 C. C. [N.S.] 435), 117. Railroad v. Pontius (19 O. S. 221), 534. Railway v. Powell (22 C. C. [N.S.] 305), 105, 124. Railroad v. Pritschau (69 O. S. 438), 306. Railway v. Pritz (90 O. S. 419), 110. Railway v. Public Utilities Com'n. (02 0. S. 9), 110. Railroad v. Railroad (5 C. D. 643, 12 C. C. 367), 462, 495. Railway v. Railway (3 C. D. 493, 6 C. C. 362), 469. Railway v. Rawson (16 Bull. 423, 9 0. D. R. 709), 452. Railway v. Raid (4 N. P. 127, 6 0. D. 273), 502. Railway v. Reynolds (21 C. C. 402, 11 C. D. 701), 177, 290. Railway v. Riclierson (19 C. C. 385, 10 C. D. 326), 120. Railway v. Rigby (69 0. S. 184), 118. Railway v. Roebuck (22 C. C. 99, 12 C. D. 262), 267. Railway v. Rohner (6 C. D. 706, 9 C. C. 702), 120. Railway v. Roos (9 C. C. 201, 6 C. D. 33), 71, 74, 381. Railway v. Salt Co. (9 C. C. [N.S.] 114, 19 C. D. 110), 317. Railroad v. Schade (15 C. C. 424, 8 C. D. 316), 120. Railway v. Scliultz (43 0. S. 270, 281, 283), 402, 406, 407, 411, 418. Railway v. Seefred (19 C. C. [N.S.] 262), 140. Railroad v. Slieppard (56 O. S. 68), 226, 446. Raihvay v. Shook (9 C. D. 9, 16 C. C. 665), 428. Railway v. Sinning (6 C. D. 753, 17 C . C. 649) , 162. Railroad v. Smith (22 0. S. 227), 444. Railway v. Snell (54 O. S. 197), 135. Railway v. Snyder (24 O. S. 670), 118. Railway v. Snyder (21 C. C. [KS.] 504), 131. Railway v. Stanton (16 C. C. [N.S.] 397), 313. Railroad v. Steinfeld (42 O. S. 449), 545. Railways v. Stoltz (9 C. D. 638, 18 C. C. 93), 406, 440, 447. Railroad v. Suhrwiar (20 C. C. 558, 10 C. D. 715), 428. Railway v. Tehan (10 C. D. 457, 4 C. C. [N.S.] 145), 141, 145. Railway v. Terry (14 C. C. 536, 7 C. D. 597), 409. Railway v. Thompson (21 C. C. 778, 12 C. D. 326), 202. Railway v. Tucker (7 C. D. 169, 13 C. C. 411), 138. Railway v. Ullom (20 C. C. 512, 11 C. D. 321), 210, 400, 407. Railroad v. Van Horn (21 C. C. 337, 12 C. D. 106), 134, 173, 406, 446, 447. Railway v. Vogelson (3 C. C. [N.S.] 581, 13 C. D. 301), 237, 398. Railway v. Wadswortli (1 C. C. [N.S.] 483, 15 C. D. 370), 134. Railway v. Wales (11 C. C. 371, 5 C. D. 168), 06. Railroad v. Walker (45 0. S. 577, 582), 5. Railway v. Ward (2 C. C. [N.S.] 2.56, 15 C. D. 399), 39, 62, 179, 350. Railway v. Waterworth (11 C. D. 621, 21 C. C. 495), 296, 321, 347, 407. Railway v. Weingertner (93 0. S. 124), 135. Railroad v. Welsh (89 O. S. 81), 18, 49, 489, 490. TABLE OF CASES Ivii [References are to pages.] Railway v. Westenhiiber (12 C. D. 22, 22 C. C. 67), 138, 446. Railway v. Whidden (13 C. D. 85, 2 C. C. [N.S.] 544), 106, 411, 412. Railroad v. Whitacre (35 0. S. 627 ^ 160. Railway v. Williams (53 O. S. 268), 562. Railway v. Willing (5 C. C. [N.R.] 137, 14 C. D. 474, 477), 226. Railroad v. Wilson (31 0. S. 555, 560), 4, 22. Railway v. Workman (66 O. S. 500, 546), 469, 495. Railway v. Woulfe (15 C. C. [N.S.] 147, 24 C. D. 123), 40. Railway v. Yokes (12 C. C. 499, 5 C. D. 599), 266, 267,306. Railway v. Zepperlein (1 C. C. 36, 1 C. D. 22), 106. Railways v. Prus (7 0. App. 412, 28 0. C. A. 369, 29 C. D. 65), 383, 427, 428. Railways & Light Co. v. Poland (7 0. App. 397, 27 0. C. A. 105, 28 C. D. 198), 122, 171, 241, 428. Railroad Trainmen v. Daley (11 C. C. [X.S.] 464, 21 C. D. 391), 343. Ralston v. Kohl (30 O. S. 92), 149, 479. Ralston v. McBurney (6 0. App. 303, 27 O. C. A. 310, 29 C. D. 158), 470, 471. Rammelsburg v. Mitchell (29 0. «. 22, 52), 543. Randall v. Turner (17 O. S. 262), 8, 550. Rankin v. Hannan (38 O. S. 438), 13, 362, 393. Ransom v. Ilaberer (13 C. C. [N.S.] 511, 22 C. D. 592), 358, 366. Rapp V. Becker (4 C. C. [N.S.] 139, 16 C. D. 321), 125. Rason v. State (78 O. S. 449), 170. RatclifT V. Teters (27 O. S. 66), 497. Ratterman v. Phipps (3 K P. 69, 4 0. D. 453, 456), 50. Rauh, In re (65 O. S. 128), 331, 347, 367, 459. Raymond v. Trustees (7 O. App. 56, 28 O. C. A. 129, 29 C. D. 242), 109. Reber v. Machine Co. (12 0. S. 175, 179), 139. Reed v. McGrew (5 Oh. 376), 548. Reed v. State (15 Oh. 217), 196, 454, 493. Reed v. State (98 O. S. 279), 180, 184. Reep V. Lyman (6 C. C. [N.S.] 113, 17 C. D. 293), 530. Reese v. Mannen Co. (19 C. C. [N.S.] 194), 123. Reeves Bros. Co. v. Coehli (6 O, App. 32, 26 C. C. [N.S.] 372, 28 C. D. 397), 323. Reid V. Board of Education (6 N. P. [N.S.] 526, 16 O. D. 414), 15. Reid V. Mathers (14 C. C. [N.S.] 473, 23 C. D. 345), 506. Reid V. Sycks (27 0. S. 285, 288), 126, 539. Reiff V. Mulholland (65 0. S. 178), 3. Reighard v. State (22 C. C. 340, 12 C. D. 382), 317, 318. Reilly, In re (7 O. L. R. 334, 54 Bull. 382), 331. Keinhard v. City (49 O. S. 257, 66), 53. Reinhard v. Rcinhard (3 N. P. [N.S.] 2S0, 15 0. D. 741), 528. Reinhart, In re (9 0. D. 441, 6 N. P. 438), 180. Reis V Hellman (25 O. S. 180), 235. Reynolds v. Morris (7 0. S. 310), 137. Reynolds v. Morris (17 O. S. 510), Iviii TABLE OF CASES [References are to pages.] Reynolds v. Rogers (5 Oh. 160), 296. Reynolds v. Schweinefus (27 0. S. 311, 320), 36, 486. Reynolds v. Smitz (9 C. D. 484, 18 C. C. 84), 149. Reynolds v. Tucker (6 O. S. 516, 519), 181, 211, 299. Reynolds v. Walker (36 Bull. 167), 184, 383. Rhodes v. Baird (16 O. S. 573), 171. Rhodes v. Gunn (35 O. S. 387, 395), 30, 54, 58, 495. Rhodes v. Mooney (43 O. S. 421 ^ 7, 8. Rice, In re (IS N. P. [N.S.] 489), 568. Rice V. Lumley (10 0. S. 596), 33. Richard v. State, ex rel. (17 C. C. [N.S.] 51), 314. Richards v. Bunte (15 C. C. [N.S.] 401, 23 C. D. 37), 462. Richards v. Foulks (3 Oh. 66), 220. Richards v. Hale (1 C. C. [N.S.] 181, 14 C. D. 468), 527. Richards v. Parsons (7 O. App. 422, 29 O. C. A. 359, 31 C. D. 195), 84, 541. Richards v. Skiff (8 O. S. 586), 465, 512. Richardson v. Curtiss (33 O. S. 320), 123. Richardson v. Hughes (Wright 648), 281. Richardson v. Wingate (10 W. L. J. 145, 1 0. D. R. 478), 4S0, 482. Richmond v. Oil Co. (8 N. P. 22, S 0. D. 583), 273, 565. Richmond v. Patterson (3 Oh. 368), 486. Richter v. Loan Co. (7 C. C. [N.S.] 360, 17 C. D. 793), 1.30. Ridenour v. Mayo (29 O. S. 138, 145), 57, 58. Ridenour v. State (38 0. S. 272), 302. Rider v. Fritchey (49 O. S. 285, 291), 15. Rindskoff v. Doman (28 0. S. 516, 520), 50. Riolo V. St?,te (19 C. C. [N.S.] 248), 233, 377, 398. Riordan v. Denehy (9 N. P. [N.S.] 406, 20 0. D. 260), 467. Ritchy V. Martin (Wright 441), 279. Ritzman v. Campbell (93 O. S. 246), 488. Robbing v. Budd (2 Oh. 16), 507. Bobbins v. Klein (60 0. S. 199), 569. Robbins v. State (8 O. S. 131), 111, 221, 222. Roberts v. Briscoe (44 0. S. 596, 602), 352, 360, 362, 367. Roberts v. Briscoe (1 C. C. 577, 1 C. D. .323), 277, 280, 517. Roberts v. Mason (10 0. S. 277), 209. Roberts v. Remy (56 O. S. 249), 30, 361. Roberts v. Roberts (8 W. L. J. 372, 1 0. D. R. 368), 219. Robinson (In re (9 O. D. 763, 7 N. P. 105), .368. Robinson v. Bank (44 0. S. 441, 448), 531. Robinson v. Gary (28 O. S. 241), 106. r.obinson v. Harrison (9 O. D. 701, 7 N. P. 273), .326. Eobinson v. McConnell (10 C. D. 707, 19 C. C. 716), 331. Robinson v. Upton (12 C. C. [N.S.] 314, 21 C. D. 330), 53. Rodeff V. Railway (7 O. App. 73, 27 0. C. A. 571, 20 C. D. 105), 133. Rodgers v. Edmund (12 C. D. 201, 21 C. C. 675), 276. Rogers v. Dare (Wright 136), 344. TABLE OF CASES lix [References are to pages.] Rogers v. :Monroe (26 C. C. [N.S.l 193), 321, 412, 434. • Rogers v. State (14 C. C. [X.S.] ^ 177, 22 C. D. 3Sn), 190. Rogers v. \Yoodruff (23 0. S. 632), 553. Rolling Mill v. A. 10, 5 C. C. 19), 475. Sherlock v. Insurance Co. (7 O. D. R. 17, 1 Bull. 26), 229. Sherwin Co. v. Kananaugh (22 C. C. [N.S.] 97), 444. Sherwin-Williams Co. v. Insurance Co. (20 C. C fN.S.l 151), 21. Shillito V. Robbins (7 Bull. 74, S O. D. R. 313), 454. Shinew v. Bank (84 O. S. 297), 239. Shive V. [Merville (15 C. C. [X.S.] 535, 24 C. D. 193, 1 O. App. 33), 647. Shriedley v. State (-23 O. S. 130), 198, 396, 4S3. Shroyer v. Richmond (16 0. S. 455), 510. Shuey V. Fink (5 O. App. 359, 26 C. C. [X.S.] 106), 432. Sibila V. Bahney (34 O. S. 399), 140. Sieving v. Scidelmcycr (4 Bull. 213, 7 0. T). R. 609), 347. . Sigler V. Rogers (46 Bull. 190), 417, 483. Sigler V. Sl\a(Ter (9 C. C. [N.S.] 267, 19 C. D. 423), 509. Silver v. State (17 Oh. 365), 333, 402, 517. Silvus V. State (22 0. S. 90, 101), 28, 97, 99. Simmons v. Green (35 O. S. 104), 56. Simmons v. Publishing Co. (4 N. P. 89, 6 0. D. 100, 101), 523. Simmons v. Saving.s Society (2 Bull. 283, 5 0. D. R. 527), 125. Simmons v. State (7 O. [pt. IJ 116), 467. Simmons v. Sup])Iy Co. (21 C. C. 455, 11 C. D. 690), 549. ,"■ imon v. Mooney (22 C. C. 271, 12 C. D. 73), 367. Simper v. Carroll (12 C. C. [N.S.] 140, 21 C. D. 386), 202, 211. Simpson v. McCairrcy (13 Oh. 508, 522), 20!). SimjKson v. Simj)son (9 C. C. [N.S.] 137, 19 C. D. .503), 86. Sinclair v. Fear (4 O. D. 26, 2 N. P. 373), 240. Sinks V. Reese (19 O. S. 306), 497. Sinton v. Fzokicl (8 A. L. R. 424, 6 O. D. R. 845), .522, .560. Sipes V. Whitney (30 O. S. 69), 512. Ixii TABLE OF CASES [References are to pages.] Sites V. Haverstick (23 O. S. 626), [ Snow v. State (1 0. D. R. 426, 9 W. 123. L. J. 420), 194. Snurr v. State (4 C. C. 393, 2 C. D. 614), 176. Snyder v. Bank (22 C. C. 624, 12 C. D. 623), 84, 85. Snyder v. Ream (Iddings 167), 178, 433. Souther v. Stoeckle (3 Bull. 575, 7 0. D. R. 511), 260. Spangler v. Cleveland (43 O. S. 526), 37, 108. Spaulding v. Railway (10 C. D. 660, 20 C. C. 99), 396, 397, 399. Spears v. State (2 0. S. 583), 247, 248. Speer v. Bishop (24 0. S. 598), 142. Speller v. Brewing Co. (5 X. P. [N.S.] 561, 16 0. D. 520), 445. Spencer v. Brockway (1 Oh. 259), 512. Spengler v. Sonnenberg (88 O. S. 192), 87. Sperry v. Tcbbs (20 Bull. 181, 10 O. D. R. 318), 22, 164, 219, 422. Spice V. Steinruck, 14 0. S. 213), 143. Spier V. Corll (33 0. S. 236), 512, 513. Spitzig V. Engineering Co. (21 C. C. [N.S.] 348), 481. Spoors V. Coen (44 0. S. 497), 512. Spronk v. Steel Co. (10 C. D. 675, 19 C. C. 714), 55, 145. Squires v. Martin (5 C. C. [N.S.] 313, 14 C. D. 232), 239. Stall V, Cincinnati (16 O. S. 160), 84. Stambaugli v. Smith (23 0. S. 5", 595), 568. Stanberry v. Xelson (Wright 7'-' 23. Standart v. Slielton (1 W. L. j\r. 405, 2 O. D. R. 116), 63. Stange v. Cleveland (20 C. D. 186, 25 C. C. [N.S.] 599, 601.), 17. Skelton, In re (20 C. C. 704, 11 C. D. 372), 89. Slipman v. Telschow (4 C. C. [N.S.] 635, 14 C. D. 536), 456. Slutz v. Desenberg (2S O. S. 371, 378), 550. Smart v. Lodge (6 C. C. [N.S.] 15, 17 C. D. 273), 344. Smiley v. Dewey (17 Oh. 156), 114, 373, 478. Smith V. Bank (13 C. C. [N.S.] 122, 22 C. D. 342), 53. Smith V. Bartram (11 O. S. 690), 489. Smith V. Brown (12 O. D. 522), 420. Smith V. Curtiss (10 C. C. [N.S.] 149, 20 C. D. 29), 134. Smith V. Fuller (86 0. S. 57, 66), 39, 40. Smith V. Geis (13 C. C. [N.S.] 336, 22 C. D. 660), 526. Smith V. Johnson (3 X. P. [X.S.] 8, 16 0. T). 43, 5), 386, 391. Smith V. Machine Co. (26 O. S. 562, 565), 4, 18. Smith V. Xeff (5 X. P. 495, 5 O. D. 449), 86, 456. Smith V. Rauh (14 C. C. [X.S.] 33, 22 C. D. 515), 409. Smith V. Simper (8 C. D. 308, 15 C. C. 375), 68. Smith V. -State (2 O. S. 511), 324. Smith V. State (14 C. C. [N.S.] 257, 24 C. D. 661), IDl. Smith V. State (15 C. C. [X.S.] 223, 24 C. D. 526), 253, 294. Smith V. Turpni (20 O. S. 478, 492), 277. Smitt V. Aultman & Taylor Co. (25 C. C. [X.S.] 561, 28 C. D. 46), 522. Snell V. Banks Co. (16 C. C. [N.S.] 32, 27 C. D. 323), 5. TABLE OF CASES Ixiii [References are to pages.] Stanglein v. State (17 0. S. 453), 234, 500. Star Co. V. Milialovitcli Co. (9 N. r. [N.S.] 218, 7 0. L. R. 77), 204. Stark V. Cress (4 0. App. ^2, 22 C. C. IX.S.] 88), 104. Stark V. Stark (17 C. C. [X.S.] 398, 24 C. D. 135), 509. Starr v. Wright (20 0. S. 97), 539. State, ex rel.,. v. Akins (18 C. C. 349, 10 C. D. 121), 15. State, ex rel., v. Aldridge (66 0. S. 598), 494. State V. Allen (68 O. S. 516), 92. State V. Altoffer (3 0. D. 288, 2 N. P. 97), 190. State, ex rel., v. Arcliibakl (52 O. S. 1), 4. State V. Austin (71 O. S. 317, 321), 32, 46, 70, 97, 98. State V. Bair (50 Bull. 11), 238, 253, 281, 287. State V. Bates (4 N. P. [X.S.] 502, 17 0. D. 301), 349. State V. Bony (13 C. C. [N.S.] 200, 22 C. D. 2.')0), 486, 499. State V. Bone (25 C. C. [X.S.] 447, 27 C. D. 472), 3.50. State V. Born (85 0. S. 430), 416, 496. State V. Brown (20 X. P. [X.S.] 3:'5, 2;-! 0. 1). 213), 339. State, ex rel., v. Buchanan (Wright 2.3.-:), 11, 12, 217, 453. State V. Pudd (05 0. S. 1, 5), 325, 327. State V. Purkliardt (3 Bull. 845, 7 r. I). R. 537), 346. State V. Buttles (3 O. S. 309, 324), 17. State V. Campbell (SO O. S. 335), 221. State V. (•ai:.phcn (11 X. P. fX.S.] 673, £1 O. I). H.-)3), 221. State V. Cappeller (39 0. S. 455), 110. State V. Clark (10 Bull. 202, 16 Bull. 17S), 3.50. State V. Cinti. Tin, etc., Co. (66 O. S. 182), 75. State V. Coit (8 0. D. 62), 39. State V. Collingsworth (82 0. S. 154), 416. State V. Conser (5 C. C. [N.S.] 119, 14 C. D. 270), 499. State V. Cook (66 O.-S. 566, 70), 80. State V. Cook (Tappan [53], 85), 285. State, ex rel., v. Cost (22 Bull. 250, 10 0. D. R. 619), 368. State V. Courtright (66 O. S. 35), 92, 333. State V. Cox (87 0. S. 313), 341. State V. Cuppett (1 W. L. M. 329, 2 0. T). R. 78), 514. State, ex rel., v. Darby (17 Bull. 62, 9 O. T). R. 725), 414. State V. Davis (90 O. S. 100), 155 206. State, ex rel., v. Do:\ruth (96 O. S. 519, 526), 17. State V. Dickerson (77 O. S. 34), 23, 165, 175, 185, 186, 187, 20.3. State, ex rel., v. Donnewirth (21 0. S. 216), 38, 498. State V. Doty (94 O. S. 258), 253, 256, 284, 288. State V. Ehinger (67 0. S. 51), 442. State V. Finney (1 Bull. 30, 7 0. D. R. 22), 198. State, ex rel., v. Fosdick (15 N. P. [X.S.] 630), 110. State, ex rel., v. Freed (6 C. D. 5.50, 10 C. C. 2:^4), 25, 51. State V. Prit:^ (11 X. P. [X.-,.] 1.38), 23. State V. Gei;-rr (70 O. l\. 400), 310. , rtate V. o:i)"bs (9 X. P. [::.s.] 129, 20 O. D. 1) , 25 1. Ixiv TABLE OF CASES [References are to pages.] State, ex rel., v. Gibson (15 0. D. 73, 2 N. P. [N.S.] 221, 220), 15. State V. Grayson (18 Bull. 221, 10 O. D. R. 55), 215. State V. Griffith (18 N. P. [N.S.] 161), 390. State V. Gross (91 O. S. 161), 129. State V. Groves (80 O. S. 351, 359), 487. State V. Halm (8 K P. 101, 11 O. D. 311), 185. State V. Hall <3 N. P. 125, 4 O. D. 147, 148), 24, 165. State V. Hare (87 O. S. 204), 192, 335. State V. Harper (35 O. S. 78), 223. State V. Haugh (4 N. P. [N.S.] 79, 16 O. D. 477), 254. State, ex rel., v. Hawes (43 0. S. 16), 2. State, ex rol., v. Hills (94 0. S. 171), 124, 302. State V. Hinkelman (13 C. C. [N.S.] 321, 22 C. D. 1), 110, 316, 499. State V. Holden (20 N. P. [N.S.] 200, 28 0. D. 123), 334. State V. Hoover (17 N. P. [N.S.] 65, 24 0. D. 212), 254. State V. Huff man (86 0. S. 229, 243), 168, 230. State, ex rel., v. Hyman (21 C. C. 187, 11 C. D. 559), 175. State V. Ice Co. (4 N. P. [N.S.] 361, 16 0. D. 735), 250, 253. State V. Japan Co. (66 0. S. 182), 295, 492. State, ex rel., v. Jones (95 0. S. 357), 513. State, ex rel., v. Jones (22 C. C. 682, 11 C. D. 496), 487, 488. State, ex rel., v. Kiesewetter (45 O. S. 254), 17, 487. State V. Kindle (47 O. S. 358), 221, 222, 223. State V. Kirves (Tddings 9), 212. State V. Knapp (70 0. S. 3S0), 28, 248, 256, 257, 258. State V. Kollar (93 O. S. 89, 91), 299, 304. State V. Lasecki (90 O. S. 10), 263, 309. State V. Lawrence (74 O. S. 38), 177. State V. Lehr (97 0. S. 280), 334. State V. Lent (Tappan 105), 453. State V. Leuth (5 C. C. 94, 3 C. D. 48), 220, 251, 256, 257, 401. State, ex rel., v. Lewis (64 O. S. 216, 234), 3. State V. Linder (76 0. S. 463, 465), 122, 164, 175. State V. Lopa (96 O. S. 410, 412), 402, 419. State V. McCoy (52 O. S. 157), 117, 335. State V. IMcGinly (2 W. L. M. 594, 2 O. D. R. 398), 79. State V. Maranda (94 0. S. 364), 257, 258. State, ex rel., v. ISIarkley (9 C. C. [N.S.] 561, 20 C. D. 113), 386, 498, 499. State V. Miller (7 C. D. 552, 13 C. C. 67), 435. State, ex rel., v. Moffitt (5 Oh. 358), 488. State V. IMoore (8 0. D. 674, 34 Bull. 276), 222. State V. Morris (5 N. P. 232, 7 0. D. 84), 258. State V. IMorrow (90 O. S. 202), 341. State V. Mulford (12 0. D. 720), 18, 21. State V. IMurray (82 O. S. 305), 385. State V. Myers (8 O. D. 679, 7 N. P. 638), 99. State V. Nelson (52 O. S. 88, 102), 15. State V. Nevin (23 BulL 411), 203, 380. TABLE OF CASES Ixv [References are to pages.] State V. Xuttles (4 Bull. 063, 7 O. T). R. 686), 120. State V. Oil Co. (51 Bull. 563), 2S6, 287. State V. Orth (79 O. S. 130), 340. State, ex rel., v. Patterson (84 0. S. 80), 498. State V. Paj-ton (21 Bull. 337, 10 0. D. R. 826), 349. State V. Penn (34 Bull. 51), 102. State V. Pereles (12 O. D. 642), 157. State V. Perry (Wright 662), 274, 492. State, ex rel., v. Price (4 C. D. 2!)G, 8 C. C. 25), 487, 488. State, ex rel., v. Railway (11 C. C. [X.S.] 263, 20 C. D. 632), 36. State, ex rel., v. Register Co. (13 C. C. [N.S.] 73, 21 C. D. 637), 286. State V. Reineke (89 0. S. 390), 176. State V. Rhoads (29 0. S. 171), 407, 418. State V. Rhoads (81 O. S. 397), 254, 460, 463. State V. Rhodes (15 N. P. [N.S.] 117), 157. State V. Robinson (S3 O. S. 136, 143), 113, 117, 3.34, 335. State V. Roderick (77 O. S. 301, 300), 186, 1S8. State V. Ross (15 Bull. 238), 337. State V. Sappienza (84 O. 8. 63, 71), 79, 96, 97. State V. Sisson (0 N. P. [X.S.] 420, 20 O. D. 205), 514. State, ex rel., v. Smith (44 O. S. 348, 362), 4, 14, 17, 487. State V. Smith (7 N. P. 72, 9 O. D. 740), 349. State V. Snell (2 X. P. 5.5, 5 O. D. 670), 283. State, ex rel., v. Spcigel (22 C. C. [N.S.] 337, 344), 468. State V. Spring (Tappan 135), 106, 518. State V. Stout (49 O. S. 270), 192. State V. Summons (0 W. L. J. 407, 1 0. D. R. 416), 248. State, ex rel., v. Terminal Co. (1 C. C. [X.S.] 513, 14 C. D. 321), 444. State V. Tippie (89 0. S. 35), 212. State V. Turner (Wright 20, 28), 112, 153, 417. State V. Tuttle (67 O. S. 440), 116, 3.35. State V. Vancak (00 O. S. 211, 4), 99. State V. Vanderbilfc (37 0. S. 590, 631), 110. State V. Wallahan (Tappan 48), 458, 497, 527. State V. Wells (11 Oh. 261), 486, 492. State V. Wing (66 0. S. 407), 2.30. State V. Woodruff (Tappan 58), 425. State V. Woolard (12 X. P. [X.S.] 305, 22 0. D. 652), 100. Steamship Co. v. Chanfordi (22 C. C. [X.S.] 310), 119. Stearns v. Cox (17 Oh. 500), 210, 306. Steele v. Worthington (2 Oh. 182), 526. Steel Co. V. lanakis (03 O. S. 301. 303), 112. Steel Works v. Dewey (37 0. S. 242), 556. Steen v. Friend (11 C. D. 235, 20 C. C. 4.50), 8, 177, 238. Stephenson v. Leesburgli (33 O. S. 475), 3. Stornberger v. Hanna (42 O. S. 3051. 354. Stetson V. Bank (2 O. S. 167), 280, 203, 2!)5. Stetson V. Bank (12 O. S. 577, 5i7), 235, 280. Stevens Co. v. Blum (17 C. C. [X.S.] 115), 43, 105. Ixvi TABLE OF CASES [References are to pages.] Stevens v. Hartley (13 0. S. 525), 352, 356. Stevens v. Railway (20 C. C. 41, 11 C. D. 168), 534. Stevenson v. Morris (37 O. S. 10), 127, 268. Stewart v. Bridge Co. (8 C. D. 454, 15 C. C. 601), 128. Stewart v. Gordon (60 O. S. 170), 82, 84. Stewart v. Hoag (12 O. S. 623), 54. Stewart v. State (10 Oh. 302, 307), 166, 260, 376, 407, 418. Stewart v. State (1 O. S. 66), 208. Stewart v. State (22 0. S. 477), 191, Stewart v. Welch (41 O. S. 483, 497), 219. Stick V. State (13 C. D. 392, 3 C. C. [N.S.] 611), 94, 95, 97. Stites V. Hier (11 N. P. [N.S.] 161, 25 0. D. 88), 429. Stites V. Wiedner (.35 O. S. 5.55), 546. Stitt V. Wilson (Wright 505), 279. Stockstill V. Railroad (24 O. S. 83), 127, 128. Stockwell V. Coleman (10 O. S. 33), 505. Stockwell V. State (27 O. S. 563), 175. Stolz V. Selz (12 O. D. 664), 494. Stone V. Sanders (18 C. C. [N.S.] 445), 146. Stone V. Vance (6 Oh. 246), 532. Stone Co. v. Whigham (23 C. C. [N.S.] 529), .53, 65, 405. Stove Co. v. Railroad (23 C. C [N.S.] 260), 561. Stove Co. V. Reep (9 C. D. 467, 18 C. C. .58), 405. Stowe-Fuller Co. v. Dominick (20 C. C. [N.S.] 556), 144, 145. Strader v. Lloyd (1 W. L. J. 396, 1 O. P. R. 57), 491. Strader v. Mullane (17 0. S. 624), 102. Straub v. State (5 C. C. [N.S.] 520, 17 C. D. 50), 334, 335, 419. Straus v. Payne (1 W. L. J. 410, 1 O. D. R. 61), 454. Strauss v. Conneaut (3 C. C. [N.S.] 445, 13 C. D. 320), 20. Strauss v. Dashney (12 Bull. 182, 9 0. D. R. 329), 66. Straw V. Dye (2 W. L. M. 388, 2 0. D. R. 312), 328. Street Railway v. Findley (46 Bull. 217), 320. Street Railway v. Kelley (6 C. C. 155, 3 C. D. 393), 199. Stribley v. Welz (4 C. D. 520, 8 C. C. 571), 178, 262. Strick v. Kiss (5 0. App. 292, 26 C, C. [N.S.] 456, 27 C. D. 554), 434. Strong v. Schmidt (7 C. D. 233, 13 C. C. 302), 526. Studer v. State (9 C. C. [N.S.] 185, 19 C. D. 33), 291, 29.5. Stull v. Wilcox (2 O. S. 569), 369. Sucher v. Burger (13 N. P. [N.S.] 161, 22 O. D. 385), 319, 320, 343, Sullivan v. Fogarty (3 N. P. 79, 6 O. D. 130), 66. Sullivan v. Starkey (14 C. C. [N.S.] 281, 22 C. D. 485), 396, 422. Summers v. Thomas Co. (82 O. S. 338), 243. Summons v. State (5 O. S. 325), 229, 230. Supreme Conclave v. Fife (16 C. C. [N.S.] 205, 27 C. D. 638), 67. Sutcliffe V. State (18 Oh. 469), 516. Suydam v. Ins. Co. (18 Oh. 459), 87. Swing V. Rose (75 O. S. 355), 417. Swisher v. Swisher (Wright 755), 526. Szalkai v. State (96 0. S. 36), 99, 188. TABLE OF CASES Ixvii [References are to pages.] Tabler v. State (34 O. S. 127, 134), 28. Taddeo v. State (22 C. C. [N.S.J 281, 3), 238, 253. Tarbox v. State (38 O. S. 581, 584), 197. Tate V. State (76 O. S. 537), 341. Taylor v. Becker (0 Bull. 25, 8 O. D. R. 151), 546. Taylor v. Boggs (20 O. S. 516), 142, 220, 202, 529, 567. Taylor v. Brown (92 0. S. 287), 194. Taylor v. State (12 C. C. [N.S.I 486, 21 C. D. 602), 67, 99. Taylor v. Taylor (7 N. P. [N.S.] 297, 19 0. D. 829), 529, 563. Teare v. Cain (7 C. C. 375, 4 C. D. 643), 543. Telegraph Co. v. Griswold (37 O. S. 301), 76. Telegraph Co. v. Smith (64 O. S. 106), 206, 209. Telegraph Co. v. Sullivan (82 O. S. 14, 23), 76, 239. Telephone Co. v. Jackson (4 C. C. [N.S.] 386, If) C. D. 89), 162, 169, 215, 308, 370. Telephone Co. v. Telephone Co. (91 O. S. 398), 9. Telephone Co. v. Telephone Co. (7 N. P. [N.S.] 425, 19 0. D. 202), 159. Terry v. State (3 C. C. [N.S.] 593, 14 C. D. Ill), 294, 308. Thatcher v. Heisy (21 0. S. 668), 147. Thayer v. Luce (22 0. S. 62, 76), 294, 308, 470, 471, 564, 565. Thevenin v. Slocum (16 Oh. 519), 495, 520. Thomas v. Bank (1 C. L. R. 37, 4 O. D. R. 32), 22. Thomas v. Beebe (8 O. D. 231, 5 N. P. 32), 331, 368. Thomas v. Boyson (21 C. C. 302, 11 C. D. 773), 209. Thomas v. Ilargrave (Wright 595), 271. Thomas v. Matthews (94 O. S. 32), 60. Thomas v. Trust Co. (81 O. S. 432, 445), 532, 553, 554. Thompson, In re (16 N. P. [N.S.] 121), 87. Thompson v. Ackerman (12 C. D. 456, 21 C. C. 740), 215, 291, 388. Thompson v. Bank (13 C. C. [N.S.] 515,22 C. D. 131), 77. Thompson v. Jones (13 C. C. [N.S.] 493, 23 C. D. 182), 89. Thompson v. Pruden (9 C. D. 857, 18 C. C. 886), 532. Thompson v. Thompson (4 O. S. 333), 561. Thompson v. Thompson (13 O. S. 356), 231, 267, 281, 282. Thompson v. Thompson (18 O. S. 73), 356. Thompson v. Thompson (2 W. L. M. 84, 2 O. D. R. 214), 466. Thurman v. State (4 C. C. 141, 2 C. D. 466), 186, 188, 268, 299, 301, 373, 382. Thurston v. Ludwig (6 0. S. 1), 548. Tillyer v. Glass Co. (13 C. C. 99, 7 C. D. 209), 220, 269, 525, 532, 554, 557. Tims V. Tims (14 C. C. [N.S.] 273, 22 C. T). 506), 396. Tipton V. Ross (10 Oh. 273), 276. Tish V. Welkcr (5 O. D. 725, 7 N. P. 472), 322. Titus V. Kyle (10 0. S. 444), 530. Titus V. Lewis (33 O. S. 304), 2, 42, 53, 105. Todd V. Pub'g. Co. (9 C. C. [N.S.] 249, 19 C. D. 155), 141, 142. Toledo V. Libbie (19 C. C. 704, 8 C. D. 589), 19. Ixviii TABLE OF CASES [References are to pages.] Toledo V. Meinert (15 C. C. [N.S.] 545, 556), 119, 146, 311. Toledo V. Preston (50 0. S. 361), 50n. Toledo Ry. v. Rippon (8 C. C. [N.S.] 334, 18 C. D. 561), 105, 107. Toler V. State (16 0. S. 583), 165. Tolerton v. Robinson (13 C. C. [N.S.] 171, 23 C. D. 179), 357. Tompkins v. Starr (41 O. S. 305), 161. TopliflF V. Topliflf (8 C. C. 55, 4 C. D. 312), 506. Torpedo Co. v. Fislibum (61 O. S. 608), 408, 417, 442. Townsend v. Bank (2 O. S. 345), 473, 501. Townsend v. State (25 C. D. 408, 17 C. C. [N.S.] 380, 381), 121, 167. Townsend v. Townsend (25 O. S. 477), 503,506. Towsley v. Moore (30 0. S. 184 1, 54. Traction Co. v. Beebe (3 0. A pp. 213, 21 C. C. [N.S.] 513), 447. Traction Co. v. Blackson, 6 C. C. [N.S.] 233, 17 C. D. 191), 29. Traction Co. v. Burcli (4 0. L. R. 660, 17 O. D. 730), 410, 441. Traction Co. v. Dempsey (9 N. P. [N.S.] 65, 21 0. D. 694), 127, 317. Traction Co. v. Dorenkemper (13 C. C. [N.S.] 97, 22 C. D. 239), 151. Traction Co. v. Drown (7 C. C. [N.S.] 549, 18 C. D. 735), 447. Traction Co. v. Durack (78 O. S. 243), 129. Traction Co. v. Forrest (73 O. S. 1), 122. Traction Co. v. Hackett (6 0. A pp. 97, 28 0. C. A. 566, 30 C. D. 208), 373, 374, 449, 482, 484. Traction Co. v. Hanson (16 C. C. [N.S.] 296), 431. Traction Co. v. Harrison (24 C. C. [N.S.] 1), 120. Traction Co. v. Hart (2 O. App. 1, 19 C. C. [N.S.] 71, 25 C. D. 347), 121. Traction Co. v. Hatfield (1 0. App. 354, 17 C. C. [N.S.] 350, 24 C. D. 378), 394. Traction Co. v. Holzenkamp (74 O. S. 379), 27, 42, 73, 105. Traction Co. v. Hutchinson (23 C. C. [N.S.] 58), 317. Traction Co. v. Jamison (13 C. C. [N.S.] 110, 22 C. D. .336), 271. Traction Co. v. Jenkins (3 O. App. 161, 19 C. C. [N.S.] 602, 26 C. D. 30), 294. Traction Co. v. Jennings (7 N. P. [•N.S.] 462, 19 0. D. 338), 312. Traction Co. v. Kettler (11 C. C. [N.S.] 516, 21 C. D. 170), 468. Traction Co. v. Aloeller (17 O. 0. 22), 29. Traction Co. v. Murphy (6 O. App. 1, 28 0. C. A. 316, 30 C. D. 82), 107. Traction, etc., Co. v. Peterson (18 C. C. [N.S.] 242), 211. Traction Co. v. Riskey (22 C. C. [N.S.] .301), 427. Traction Co. v. Ruthman (22 C. D. 353, 13 C. C. [N.S.] 161), 107. Traction Co. v. Stephens (75 0. S. 171), 400, 441. Traction Co. v. Sterling (9 C. C. [N.S.] 200, 19 C. D. 227), 294. 455. Traction Co. v. Ward (6 C. I [N.S.] 385, 17 C. D. 761), 12" 312, 446. Traction Co. v. Wooley (6 N. 1' [N.S.] 444, 17 O. D. 19), 402. Tracy v. Coffey (8 C. C. [N.S.] 88, 18 C. D. 579), 53. TABLE OF CASES Ixix [References are to pages.] Transit Co. v. Dagenbach (11 C. D. 307), 44"), 446. Transit Co. v. Stephenson (12 C. D. 631), 292, 42S, 430. Treachvell v. Commissiojieis (11 O. S. 183, 189), 2. Tremper v. Barton (18 Oh. 418, 423), 30. Treon v. Brown (14 Oh. 482), 501. Treuhaft v. Dambach (16 C. C. [N.S.] 526, 25 C. D. 570), 172. Trimble v. Longworth (13 O. S. 431, 439), 513. Trone v. Assurance Co. (13 O. D. 298), 12. Trout V. iMarvin (14 C. D. 333, 2 C. C. [X.S.] 523), 202. Truman v. Lore (14 O. S. 144), 433. Trust Co., In re (1 O. App. 409, 17 C. C. [N.S.I 324, 24 C. D. 381), 529. Trust Co. V. Campbell (16 C. C. [N.S.] 348), 41, 245. Trustees v. Odlin (S 0. S. 293, 207), 138. Tucker v. Hendricks (2 C. C. [N.S.] 122, 15 C. D. 426), 405. Tudcr Co. V. Grecnwald (16 C. D. 556, 5 C. C. [N.S.] 37, 39), 204. Tullis V. State (39 O. S. 200), 381. Turner, In re (11 0. D. 251, 8 N. r. 241), 301, 331, 386. Turr.cr v. State (3 C. D. 263, 5 C. C. 537), 99, 188, 298, 398, Turnpike Co. v. Baily (37 O. R. 104), 319, 320. Turnpike Co. v. Cincinnati (10 C. D 288, 19 C. C. 607), 273. Turnpike Co. v. Coover (25 0. S. 558), 242. Turnpike Co. v. Coover (26 0. S. 520, 522), 388, 450. Turnpike Co. v. Hester (12 C. C. .350, 5 C. I). 090), 216, 311. Tuttle V. Burgett (53 0. S. 498), 522, 560. ' Tuttle V. Furi (22 C. C. [N.S.] 388, 390), 138, 146, 201, 305. u I'mbenhauer v. State (4 C. C. 378, 2 C. D. 606), 283. Umbenhour v. Umbcnhour (12 C. C. [N.S.] 289, 21 C. D. 317), 348. Union Express v. Graliam (26 O. S. 595), 61. Union Mill v. Packard (1 C. C. 76, 1 C. D. 46), 305. United Power Co. v. Matheny (81 O. S. 204), 261. Upthegrove v. State (37 O. S. 662, 663), 188, 218, 219. Utter V. Hudnell (7 A. L. R. 118, 6 O. D. R. 621), 569. Vail V. McMillan (17 O. S. 617), 526. Vairin v. Insurance Co. (10 Oh. 223, 224), 467. Van Arsdale v. Brown (18 C. C. 52, 9 C. D. 488), 546. Van Camp v. Chenot (20 C. C. 708, 10 C. D. 819), 151. Vance v. Park (8 C. D. 425, 15 C. C. 713), 543. Van Derveer v. Suti)liin (5 0. S. 293), 181, 210, 211. Vanimmons v. State (22 C. C. 451, 12 C. D. 345), 167. Van Ingen v. Peterson (12 C. C. [N.S.] 253, 21 C. T). .506), 69, 239. Van Zandt v. State (13 C. C. [N.S.] ■ 526), .304, .309. Vanzant v. Davics (6 O. S. 52, 54), 30. Varner v. Varnor (16 C. C. 386, 9 C. D. 273, 276), 23, 162, 321. Ixs TABLE OF CASES [References are to pages.] Voight Sons' Co. v. Lafkin (6 C. D. 124, 12 C. C. 751), 245. Volk V. Westerville (3 X. P. [N.S.] 241, 17 0. D. 776), 381. Volksblatt Co. v. Hoffmeister (62 O. S. 189, 198), 202. Voorhees Co. v. Supply Co. (12 C. C. [N.S.] 243, 21 C. D. 557), 305, 309, 532. Voss V. ISIurray (50 0. S. 19), 278. Vulgamore v. Vulgamore (7 O. App. 374, 27 0. C. A. 136, 28 C. D. 229), 33. w Wade V. State (2 C. C. [N.S.] 189, 15 C. D. 279), 222, 250, 251, 252, 253, 264. Wagers v. Dickey (17 Oli. 439), 229. Wagner v. Construction Co. (17 C. C. [N.S.] 134), 134. Wagner v. Ziegler (44 O. S. 59), 105, 135. Wainright v. Railway (11 C. D. 530), 23. Waite V. State (4 O. App. 451, 23 C. C. [N.S.] 455, 60), 335. Wald V. Bien (14 N. P. [N.S.] 145, and cases cited), 554. Waldschmidt v. Bowland (6 C. C. [N.S.] 99, 17 C. D. 782), 438. Wales V. Bates (3 W. L. J. 263, 1 0. D. R. 180), 531. Walker v. Devlin (2 O. S. 593), IIS, 263. Walker v. Scott (29 O. C. A. 89, 7 O. App. 335, 338), 503. Walker v. Stetson (14 O. S. 89), 112, 122. Wallace v. McMicken (2 Dis. 564, 13 0. D. R. 345), 7. Wallace v. Miner (6 Oh. 366), 28, 277. Walls V. Express Co. (19 N. P. [N.S.] 156, 28 O. D. 56), 61. Walrath v. Insurance Co. (9 C. D. 233, 16 C. C. 413), 527, 567. Walsh V. Barton (24 O. S. 28), 53, 465, 468, 472. Walsh V. Thomas (91 O. S. 210), 112. Walsh V. Walsh (18 C. C. [X.S.] 91), 415, 432. Walter v. Bowling Green (16 C. D. 756, 5 C. C. [iSr.S.] 516, 526), 214. Walters v. State (39 0. S. 215), 96. Waltha V. State (14 C. C. [N.S.] 145), 166. Walton V. Ensign (6 C. C. [N.S.] 300, 17 C. D. 505), 63, 316. Ward, In re (21 C. C. 753, 12 C. D. 44), 89. Ward V. Barrows (2 0. S. 241, 247), 28. Ward V. Railway (16 C. C. [N.S.] 594, 27 C. D. 627), 215, 311. Ward V. Steel Co. (17 N. P. [N.S.] 331, 26 0. D. 569), 463. Ware v. Slocum (26 C. C. [N.S.] 317, 27 CD. 348), 321. Wareham v. State (25 0. S. 601, 605), 315. Warner v. Lucas (10 Oh. G36), 385. Warner v. Railroad (31 O. S. 265), 466, 502. Warner v. Railroad (39 O. S. 70), 562. Warren v. Theater Co. (7 N. P. 538, 5 O. D. 559), 24. Wasmer v. Rawlins (iG Bull. 147), 226. Wass V. Trust Co. (15 O. D. 677), 136. Watson V. Brown (14 Oh. 473, 479), 155. Watson V. Lamb (75 0. S. 481), 566. Watts, In re (19 N. P. [N.S.] 225, 27 0. D. 87), 332. TABLE OF CASES Ixxi [References are to pages.] Watts V. Shewell (31 0. S, 331). 224, 225, 480. Waybriyht v. Bonncll (20 N. J'. [X.S.] 475, 2S O. D. 270), 80. Wayne v. The General Pike (16 Oh. 421), 534, 556, 557. Weaver v. Carnahan (37 O. S. 363), 5. Weaver v. Kinjr (12 C. C. [N.S.] 129, 21 C. D. inO), 511. Weaver v. Linncman (3 O. L. 1\. 424, 16 0. D. 340), 101. Weaver v. State (24 O. S. 584), 09. Webb V. State (29 O. S. 351), 66, 291, 384, 385, 399. Weber v. Lamp Co, (20 C. C. [N.S.] 279), 546. Webster v. Harris (16 Oh. 490), 502. Webster v. Paul (10 O. S. 531), 243, 558. Wehrmann v. Beech (7 C. C. [N.S.] 367, 18 C. D. 128), 361. Weitz v. Wenham (6 C. D. 563, 10 C. C. 348, 350), 12. Weingartner v. Railway (3 0. App. 12, 21 C. C. [N.S.] 494), 135. Welker v. Toledo (18 0. S. 452, 455), 51. ATellor Co. v. Gordon (7 C. C. [N.S.J 303, 14 C. D. 407), 77, 523. Weller v. State (10 C. D. 381, 19 C. C. 166), lis, 119, 377. Wells V. Martin (1 0. S. 386), 457. Welsh V. Childs (17 0. S. 319), 47. Werner v. Cincinnati (3 C. C. [N.S.] 276, 13 C. D. 475), 507. Wertz V. Eailroad (11 O. D. 804, .30 Bull. 280), 514. West v. Knoppenberger (4 C. C. [N.S.] 305, 16 C. D. 168), 103, 104, 412, 413, 434. Westenhaver v. Hoytville (8 C. C. [N.S.] 284, 18 C. D. .357), 109. Westerman v. Westerman (25 O. S. 500), 309, 346, 347. Westlake v. Westlake (34 0. S. 621), 267. Westwater v. Pool Co. (12 C. C. [N.S.] 3S2, 22 C. D. 121), 296, 523. Wetmore v. Mcll (1 0. S. 26), 262. Wettstein v. Bank (20 C. C. [N.S.] 201), 547. Weybriolit v. Fleming (40 O. S. 52), 118. Whalen v. State (12 C. C. 584, 5 C. D. 488), 349, 500. Wheeler v. State (34 0. S. 394), 46, 98, 161, 417, 519. Whelan v. Kinsley (26 O. S. 131), 132, 296, 490. ^^^litcomb V. State (14 Oh. 28"^, 285), 194. White V. Herndon (15 C. C. 290, 8 C. D. 292), 6. White V. Perrine (1 W. L. J. 397, 1 O. D. R. 58), 520. White V. Smythe (24 C. C. [N.S.] 225, 27 C. D. 489), 316. White V. Tucker (16 0. S. 468), 210, 404. Whiting- V. State (48 0. S. 220), 21, 117, 131, 334. Whitman v. Keith (IS 0. S. 134, 149), 297, 298. Whitman v. State (7 C. C. [N.S.] .334, 17 C. D. 735), 507. Whitney v. Denton (3 Bull. 870, 7 0. b. R. .547), 85. Whitney v. Roth (45 Bull. 374), 161. Wiborg v. Pfeifer (S N. P. 273, 11 O. 1). 428), 417. Wick v. Baldwin (51 O. S. 51), 385. Wicker v. Messinger (22 C. C. 712, 12 C. D. 425), 143. Wickham v. Coyner (12 C. C. [N.S.I 433, 20 C. f). 765), 45. Wilhelm v. Parker (9 C. 1). 724, 17 C. C. 234), 18, 488, 489. Williams, In re (25 C. C. [N.S.I 249, 5 O. A 1)1). 55, 27 C. D. 385), 37. Ixxii TABLE OF CASES [References are to pages.] Williams v. Barker (4 N. P. [N.S.] 596, 17 O. D. 679), 400. Williams v. Brown (28 O. S. 547 >, 411, 412, 441. Williams v. Burnet (Wright 53), 276. Williams v. Finlay (40 0. S. 342), 489. Williams v. Lederer (18 C. C. [N.S.] 515, 517), 146. Williams v. Lockoman (46 O. S. 416), 318. Williams v. Longley (3 C. C. 508, 2 C. D. 292), 353, 355, 362. Williams v. Mears (4 Gaz. 293, 2 Dis. 604), 277. Williams v. Salem (33 Bull. 148), 316. Williams v. Spriggs (6 0. S. 585), 19.5. Williams v. State (Wright 42), 383. Williams v. State (14 Oh. 222), 29, 95. Williams v. State (11 C. C. [N.S.] 4, 20 C. D. 342), 254, 340. Williams v. Stearns (59 O. S. 28, 36), 263, 269. Williams v. Swift (6 Bull. 722, 8 O. D. R. 258), 567. Williams v. Van Tuyl (2 O. S. 337), 543. Williams v. Williams (3 W. L. M. 258, 2 0. D. R. 478), 526, 537, 538. Williamson v. Carskadden (36 O. S. 664), 501. Williamson v. Hall (1 O. S. 190), 527. Willinger v. Bramsche (3 C. D. 731, 7 C. C. 208), 108. Willis V. Baker (75 O. S. 291), 83. Wilmot V. Lyon (7 C. D. 394, 11 C. C. 238), 25, 197, 268, 270. Wilson V. Bailey (1 Handy 177, 12 O. D. R. 88), 532, 564. Wilson V. Barkalow (11 O. S. 470), 153, 156, 158, 215, 293, 311. Wilson V. Brown (12 C. D. 719), 119. Wilson V. Giddings (28 O. S. 554), 20, 550. Wilson V. Goodin (Wriglit 219), 480. Wilson V. Wilson (17 0. S. 150), 40. Wilson V. Wilson (8 0. App. 258, 28 0. C. A. 309, 29 C. D. 393), 489. Winder v. Seholey (83 O. S. 204), 280, 543. Winthrop v. Grimes (Wright 330), 485. Wisby V. Bonte (19 O. S. 238, 247), 11. Wiswell V. Church (14 O. S. 31), 11. Wolcott V. Holland (17 C. D. 71, 5 C. C. [X.S.] 604, 610), 39. Wolf V. Menager (14 O. D. 128), 485, 515. Wolf V. Powner (30 .0. S. 472), 340, 353, 366. Wolverton v. State (16 Oh. 173), 234, 500. Wood V. Perry (Wright 240), 534. Woodbury v. Bollmeyer (20 C. C. [N.S.] 113), 59, 347. Wood Co. V. Shinnew (10 C. C. [N.S.] 554, 20 C. D. 1.58), 318. Woodruff V. Montgomery (11 C. C. [N.S.] 72, 20 C. D. 426), 239. Woods V. Altschul (12 C. D. 800, 22 C. C. 560), 331. Woodward v. Sloan (27 O. S. 592), 151. Woodworth, In re (6 O. D. 19, 29 Bull. 315), 330. Woolworth V. Brinker (11 0. S. 593, ■597), 510. Work V. Corrington (34 O. S. 64, 75), 15. Worman v. Teagarden (2 O. S. 380), 528, 561. Worth V. Wilson (Wright 162), 554. TABLE OF CASES Ixxiii [References are to pages.] Worthington v. Railway (9 C. C. [N.S.] 433, 19 C. D. 321), 268, 273. Wrede v. Richardson (77 O. S. 182), 492. Wrede v. Steinkamp (1 N. T. 192, 2 O. D. 198), 236. Wrentmore v. Wrentmore (17 C. C. [N.S.] 81), 509. Wright V. Gill (12 O. D. 12), 32. Wright V. Hull (83 0. S. 385), 31. 73, 77, 467. Wright V, Merchant (5 W. L. U. 194, 2 O. D. R. 742), 540. Wroe V. State (20 O. S. 460), 21, 187, 223, 224, 304, 382. Wuest V. Railway (5 C. C. [N.S.] 619, 17 C. D. 365), 125. Wylie V. King (18 C. C. [N.S.] 304), 68. Wymond Co. v. Thompson (8 N. P. 347, 11 O. D. 487), 173, 225. Yager v. Greiss (1 C. D. 296, 1 C. C. 531), 3^6. Youmans v. Caldwell (4 O, S. 71), 506, 568, Younce v. Flory (77 O. S. 71), 528. Young V. Buckingham (5 Oh. 485), 516. Young V. Clark (13 C. C. [N.S.] 284, 22 C. D. 374), 108. Young V. Langdon (12 Bull. 246, 9 0. D. R. 367), 352. Young V. State (23 0. S. 577), 9. Young V. State (16 C. D. 747, 6 C. C. [N.S.] 53, 56), 249, 303. Youngs V. Heffner (36 0. S. 232), 33. Youngstown v. Moore (30 O. S. 133), 274. Zackman v. Dick (15 C. C. [N.S.] 593, 24 C. D. 450), 529. Zeltner v. State (13 C. C. [X.S.; 417, 22 C. D. 102), 167, 175, 187, 299, 376. Zieverink v. Kemper (50 O. S. 208), 468. Zimmerman v. Grotenkemper (6 O. D. R. 832, 8 A. L. Rec. 364), 327. Zuekerman v. State (24 C. C. [N.S.] 404), 197. CHAPTER I. JUDICIAL ADMISSIONS. 1. Issues made by denials. 2. Admissions in i)lcadings. 3. Admissions and denials. 4. Material allegations. 5. Averments as to value. 6. Judgment by default. 7. Admissions generally binding. 8. Parties not bound. 9. Admissions in other cases. 10. Admissions outside pleadings — Forms. 11. Agreed statement of facts. 12. Agreements as to certain facts. 13. Oral admissions by party. 14. Oral admissions by attorney. 1. ISSUES MADE BY DENIALS. (a) In civil actions, courts do not hear evidence until it has been determined what ultimate facts are in issue. An issue of fact arises (1) upon a material allegation in the petition denied by the answer, (2) upon a set-off, counterclaim, or new matter presented in the , answer and denied by the reply, (3) upon material new matter in the reply, which is to be considered as controverted by the adverse party without further pleading. See Section 11378, General Code. (b) In order to put plaintiff upon proof of a material aver- ment in his petition, the defendant must in some form deny its truth. "Where the answer to such averment states merely that defendant does not admit, the plaintiff can not be required to offer evidence in regard to it. And when an answer calls for proof because defendant can not state whether or not a matter is true, it is not a proper denial. The code requires a denial ; and a call for proof can not be regarded, in form or substance, as the denial contemplated by the code. And an averment in a reply that the pleader can not admit or deny the allegations 1 metzler'.s trial k\\ — 1 §2 METZLER'S OHIO TRIAL EVIDENCE 2 of the answer, but demands proof thereof, is no traverse of the facts so alleged. And the defendant in such case will not be called on to adduce evidence of the truth of his averments. Boniberger v. Turner, 13 0. S. 263. Bentley v. Dorcas, 11 0. S. 398, 409. Building Assn. v. Clark, 43 0. S. 427. (c) A want of belief is sufficient to authorize a denial of an allegation ; and it is not improper to accompany the denial with a statement that the party making it has no knowledge or in- formation on which to form a belief. But a denial for want of knowledge, where it refers to a public record, is insufficient to put the opposite party on his proof. Treadwell v. Commissioners, 11 0. S. 183, 189. Dennis v. Landretli, 15 C. C. (X.S.) 1.19, 22 C. D. 678. Cf. Lieblang v. Kailway, 4 C. C. (X.S.) 516, 16 C. D. 30. 2. ADMISSIONS IN PLEADINGS. (a) In a pleading, facts may be judicially admitted in two ways: (1) by admitting specifically, and (2) by failure to deny. For the purposes of an action, every material allegation of a petition not controverted by the answer, and every material allegation of new matter in an answer not controverted by the reply, shall be taken as true. New matter alleged in a reply shall be deemed controverted by the adverse party as upon a denial or avoidance, as the case may require. See Section 11329, General Code. State, ex rel., v. Hawcs, 43 0. S. 16. Titus V. LeAvis, 33 0. S. 304. FewRter v. Goddard, 25 0. S. 276. Edwards v. Edwards, 24 0. S. 402. Rader v. Baseli, IS C. C. (X.S.) 23. (b) But when the legal effect of the allegations in an answer is a mere denial of the averments in the i^etition, such allega- tions can not be regarded as new matter, which will be taken as true unless controverted by reply. In other words, facts stated in an answer which could have been given in evidence under a denial of the averments in the petition, do not constitute new matter requiring a reply. Insurance Co. v. Kelly, 24 0. S. 345. Corry v. Campbell, 25 O. S. 134. 3 JUDICIAL ADMISSIONS §4 3. ADMISSIONS AND DENIALS. (a) If a party admits certain facts, but denies all other alle- gations in his opponent 's pleading, the denial applies only to the allegations not included in the admissions. And if a party selects one averment and denies that only, he admits all other material averments. Stephenson v. Leesburgh, 33 0. S. 475. Everett v. Waymire, 30 0. S. 308. Layman v. Brown, 12 0. D. R. 406, 1 Dis. 7"), 77. (b) A general denial of the allegations of a petition is un- availing when it is inconsistent with the express admissions of the answer. In order to determine the effect of any of the allegations of a pleading, all the allegations should be considered. Reiff V. Mulhollajid, 65 0. S. 178. (c) When a conceded material fact in a pleading is inconsis- tent with a general allegation in the same pleading, such con- ceded fact must prevail. As both can not be true, the general allegation will be disregarded. It is a rule that a pleading containing inconsistent statements should be construed against the pleader. State, ex rel., v. Lewis, 64 O. S. 216, 234. Mechanics' Assn. v. O'Comier, 29 0. S. 651, 654, (d) Where an averment of a petition is admitted by one defendant and denied by another, there is no issue on that point between the plaintiff and the one, but there is an issue between the plaintiff and the other. So wliere one defendant is alleged to have dug a hole in a street and left it unlighted, and another defendant is alleged to have negligently driven plaintiff into the hole, the latter defendant who has admitted the averment that there was no light to warn him, is entitled to its benefit, although the other defendant has shown that there was a light. Fisher v. Tryon, 15 C. C. 541, 8 C. D. 556, 564. 4. MATERIAL ALLEGATIONS. (a) The allegations of a pleading that are to be taken as true, if not denied, are material allegations of fact; that is, §5 METZLER'S OHIO TRIAL EVIDENCE 4 these which could not be stricken out of the pleading without leaving il insufficient. Railroad v. Wilson, 31 0. S. 555, 560. Section 11330, General Code. (b) There are at least four kinds of allegations which need not be denied: — (1) An averment of legal conclusions. This tenders an im- material issue, and is not to be taben as true though the adverse party fails to deny it. ■ Railroad v. Wilson, 31 0. S. 55.5, 560. Cf. Bank v. Lloyd, 18 0. S. 353. State, ex rcl., v. ArcIiibaM, 52 O. S. 1. (2) Neither presumptions of law nor matters of which judi- cial notice is taben, need be stated in a pleading. Section 11331, General Code. State, ex rol., v. Smith, 44 0. S. 348, 302. (3) A copy of a writing attaclied to a pleading but not made a part thereof. Leedle v. Christie, 15 C. C. (X.S.I 3S5. 24 C. D. 572. See also McEwing v. James, 36 0. S. 152, 153. Construction Co. v. Lakewood, 17 C. C. (N.S.) 165. (4) Averments r.s to vabae or the amount of damage. Section 11329, General Code. 5. AVERMENTS AS TO VALUE. (a) In an action the cause whereof is not founded on con- tract, express or implied, the verification of the petition does net prima facie embrace or determine the amount of the re- covery ; and it is error to enter judgment thereon without evi- dence of amount or value. The verification of the pleading does not apply to the amount claimed except in actions founded on contract, express or implied, for the payment of money only. Pollock V. Pollock, 2 C. C. 143, 1 C. D. 410. Keck V. JenTiev, 1 Clcv. L. R. 90, 4 0. D. R. 173. Section 11357, General Code. See Smith v. Machine Co., 26 O. S. 562. Chambers v. Frazier, 29 0. S. 362. (b) B;it in an action on an account, the allegation of the amount due is a material allegation, and not an allegation of 5 JUDICIAL ADMISSIONS § 6 value or damage which need not be denied ; and if not denied by the answer, judgment may be rendered for the amount with- out proof of value. And in an action on an implied contract for money only, as for money had and received, judgment may be rendered without proof of the amount. Dallas V. Fernoau, 25 0. S. 635, 638. Railroad v. Walker, 45 0. S. 577, 582. K. B. Co. V. Dixon, 19 C. C. (X.S.) 196. 6. JUDGMENT BY DEFAULT. (a) "Wlien all or a part of one or more of the causes of action set out in a pleading are not put in issue by answer, or otherwise, judgment may be taken, as upon a default, for so much of the demand as is not in issue, on any or all of the causes alleged, without prejudice to the rights of the pleader as to that portion of his demand which is disputed. Section 11592, General Code. (!:) Vv'here a defendant admits the amount of his indebted- ness to the plaintiff and pleads a set-off, and issue is joined on the set-off, a judgment rendered upon the pleadln;;s, on the motion of the plaintiff, for the amount admitted to be due, less the amount of the set-off, is not erroneous. Beneon v. Stein, 34 0. S. 294. (c) Where the defendant in an action for the price of goods sold sets up in his answer and as his only defense that the goods were sold by sample and were inferior to the sample to a .specified amount, the court is authorized to render judgment for the amount .so admitted to be due, and continue the cause as to the counterclaim or amount in dispute. Moore v. Woodside, 26 0. S. 537. (d) But where plaintiff sues to recover the value of services rendered, and the defendant admits the rendition of the serv- ices, but denies the value to be as great as claimed, and avers that it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial to determine the further value of such services. Weaver v. Camalian, 37 0. S. 363. Roos V. .Sykes, 14 X. P. (X.S.) 367. Snell V. Banks Co., 16 C. C. (X.S.) 32, 27 C. D. 323. § 7 METZLER'S OHIO TRIAL EVIDENCE 6 (e) Where a cause of action is on an entire demand and the whole of the claim is disputed, judgment should not be ren- dered for a.j)art of the claim. And where the plaintiff sets up two causes of action, and several defenses denominated counter- claims are set up to the second cause of action, it is error for the court to render judgment on the first cause of action if the answer is a complete defense to both causes of action. The real nature and character of a pleading should govern. White V. Herndon, 15 C. C. 290, 8 C. D. 292. Hathaway v. Gordon, 9 C. C. 8, 6 C. D. 39. 7. ADMISSIONS GENERALLY BINDING. (a) It is a well-settled rule that parties are bound by their written admissions made in the progress of a cause as a sub- stitute for evidence of any material fact, and can not at pleasure repudiate them by amendment. Amendments to pleadings sought to be made out of rule should be allowed only in furtherance of justice. Archdeacon v. Gas Co., 76 0. S. 97. Iron Co. V. Harper, 41 0. S. 100, 105. (b) After a case has been pending for such time that it would be too late to commence another action, the defendant should not be permitted to retract an admission by amend- ment for the purpose of interposing the defense of the bar of the statute. Even if amendment should be permitted, it would leave in force the admission of the original answer. Archdeacon v. Gas Co., 76 0. S. 97, 105. (c) Part of an answer of a corporation containing among other things an admission of its incorporation, was stricken out on plaintiff's motion, which left in a denial of everything not therein admitted. It was held that plaintiff might read in evi- dence to the jury such admission in the original answer. Iron Co. V. Harper, 41 O. S. 100. (d) An answer filed in a libel suit was a plea of justifica- tion as broad as the libel itself and was on file for a year, and permission was then given to withdraw it. The withdrawal did not destroy its competency as evidence of a republication of the libel and as tending to prove malice. Puhlishing Co. v. Valentine, 9 C. C. 387, 6 C. D. 323. 7 JUDICIAL ADMISSIONS § 8 (e) Admissions of a receiver in a pleading and of an at- torney in an affidavit in support of a motion are admissible in the same cause if within the scope of their authority ; and the authority of the attorney is to be presumed from his appearance as such in the case, until the contrary affirmatively appears. Abrazonine Co. v. Ceramic Co., 17 C. C. (X.S.) 209. (f) The pleading of a party is not admissible in evidence on the trial to prove its allegations; but the pleading of one party may be introduced by his adversary to prove admissions or to impeach statements made on the trial. Railway v. Helber, 91 0. S. 231. (g) An averment in the nature of an admission is not con- elusive during the trial, Avhen it is obviously a mistake and there is no element of estoppel in the admission. But after judgment, the allegations of a party in his pleadings in the case are to be taken as conclusive against him. A judgment can not be affected by an assertion that an admission in a pleading was made under a mistake. Rhodes v. Mooney, 43 0. S. 421, 426. Bates, Pleading and Practice, p. 563. Fisher v. Tryon, 8 C. D. 556, 15 C. C. 548. Benson v. Stein, 34 0. S. 204, 299. Wallace v. McMicken, 2 Dis. 564, 13 0. D. Pv. 345. (h) If a fact is admitted by the pleadings and no evidence is offered to disprove the fact, it is error for the court, when special findings are requested, to state the fact contrary to the admission. And an admission in the pleadings must pre- vail over a finding to the contrary by the jury. Oliver v. Moore, 23 0. S. 473. Harris v. Oil Co., 57 0. S. IIS, 125. Cincinnati v. Johnson, 7 C. C. (X.S.) 167, 18 C. D. 377. 8. PARTIES NOT BOUND. (a) The answer of a guardian of an infant, or of a person of unsound mind, or of an attorney for a person in prison, shall deny all the material allegations of the petition pre- §9 IViETZLERS OHIO TRIAL EVIDENCE 8 judicial to such defendant. Neither an express admission in the answer nor a failure to deny will avail plaintiff. Section 11322, General Code. Long V. Miilford, 17 O. S. 484, od". Randall v. Turner, 17 0. S. -C-. (b) Officers can not bind tliemselves .or tiie public by an admission in their ans\, er that a mistake was made ni a bid not apparent on its face, as this would be a plain violation of the statute. And where the auditor has not the power to fix the sum for which the county is to be chary'eable, he can not, by any admission in a proceedin<>- by mandamus, bind the county in reference to the amount of liability. . Beaver v. Elind Asylr.m, 19 0. S. 07, inq. Putnam Co. v. Auditor, 1 0. S. 322. 9. ADMISSIONS IN OTHER CASES. (a) An express admission of a fact in the pleadings in one action may be admitted in evidence in another action on the same subject against the party making it. An admission that the defendant holds the title of land in trust to ])ay cer- tain debts of the grantor and to support his wife and child as far as necessary, was held to be admissible to prove the trust, notwithstanding the admission was made in an answer in a former case brought by other parties. Earl V. Shoulder, 6 Oh. 400. Railroad v. Cleveland, 15 C. C. (X.S.) lOH, 23 C. D. 4S2. Broadrup v. Woodman, 27 0. S. 5.53. See Maloney v. IMaloney, 4 C. D. 25.^, 12 C. C. 700. Steen v. Friend, 11 C. D. 235, 20 C. C. 4.50. (b) However, an admission contained in the pleadings of a part.v does not estop him from asserting the truth in a sub- sequent action, if such admission was not material to the mat- ters adjudicated in the former suit. An admission is not con- clusive when it is obviously a mistake and the other side has not been misled. Crofton V. Board of Edneation, 2fi 0. S. 571. Rhodes v. Mooney, 43 O. S. 421. 426. (c) A pleading verified as required by statute shall not be used against a party in a criminal prpsecution or action, or 9 JUDICIAL ADMISSIONS § 10 proceeding for a penalty or forfeiture, as proof of a fact ad- mitted or alleged in such pleading. But a plea of guilty in a criminal prosecution is admissible against the party in a civil action, though not conclusive. Such plea stands like any other confession of a party and may be controverted. See Section 11359, General Code. Clark V. Irviii, 9 Oh. 131. 10. ADMISSIONS OUTSIDE PLEADIMGS— FORMS. (a) Aside from the admissions of the pleadings, there are four methods of dispensing Avith evidence by judicial admis- sions : (1) by an agreed case, (2) by an agreed statement of facts, (3) by an agreement as to certain facts, and (4) by oral admission in open court. The first and second dispense with all evidence; the other two dispense with evidence as to cer- tain facts. All are written stipulations except the last. (b) The principal distinction between an agreed case and the other three methods, is that it dispenses with both plead- ings and evidence ; whereas the others dispense with evidence only. Another distinction is that when an agreed ease is re- viewed on error, the case, the submission, and the judgment will constitute the record ; whereas the other agreements must, in order to be reviewed, be made a part of the record. Phillips, Code Pleading, Section 514. Sections 11472 et scq.. General Code. Brown v. Mott, 22 O. S. 149. (c) An agreed statement of facts, although in writing and signed by counsel of all parties, and filed, does not become a part of the record unless it is brought upon the record by a bill of exceptions ; or unless the facts as agreed upon are stated in the journal entry as the court's finding of facts. Goyert v. Eicher, 70 0. S. 30. Telephone Co. v. Telephone Co., 91 0. S. 398. Young V. State, 23 0. S. 577. Oil Co. V. Inn is, 12 C. C. (X.S.) 223, 18 C. D. 778. Darling v. Ilippel, 12 C. D. 754. (d) The rule is similar in regard to agreements as to cer- tain facts and oral admissions made during the trial. It is not proper for the court to enter upon the journal that a § 11 METZLER'S OHIO TRIAL EVIDENCE 10 party has admitted certain facts. The admission should be made a part of the bill of exceptions. Challen v. Cincinnati, 40 0. S. 113. Cf. Fath Co. V. Bausmerth, 15 C. C. (N.S.) 150, 23 C. D. 382. (e) It is not error for the court, while charging the jury, to repeat to them the statement of a witness, and to inform them, where such is the fact, that counsel on both sides ad- mit the truth of the statement. The fact that such admission was made by counsel Avill be presumed where the contrary is not shown by the record. Bond V. State, 23 0. S. 340. Eailvvay v. Hudson, 22 C. C. 586, 12 C. D. 661. 11. AGREED STATEMENT OF FACTS. (a) It has long been the practice in this state for counsel to agree upon the facts, reduce the agreement to w^riting, and file it in the case, instead of going to the trouble and expense of taking proof by deposition or otherwise. And when such agreement is reduced to writing and signed by the parties or their counsel, and when the case has been submitted upon such agreed statement of facts, the statement can not be withdrawn or the agreement retracted by either party except by leave of court on cause shown. Tsh V. Crane, 13 0. S. 574. 579. (b) In ease an agreed statement has been made and filed by mistake or misapi')rehension of the existing state of facts by one of the parties, he may consistently with fair practice and upon notice to the adverse party or his counsel, apply to tlie court for leave to withdraw from the files such agreed statement, or such part tliereof as is, in fact, untrue. And upon the merits of such motion being sustained by proof satis- factory to the court, it is not doubted the court may grant such relief as the party should show himself justly entitled to. Tne same rule would appl}^ to an agreement as to certain facts. Tsh V. Crane, 13 0. S. 574, 580. Dewey v. Sloan, 11 Bull. 102, 9 0. D. R. 151. See Garrett v. Ilanshue, 53 O. S. 482, 496. (c) After a case is reserved to the supreme court upon issues joined and an agreed statement of facts, no change of 11 jUuICiAL ADU.ISSIONS § 13 the pleadings making new issues and requiring further evi- dence Avill be allowed, unless it is made clear that without it the rights of a party will be sacrificed or plain injustice done. Wicwell V. Church, 14 0. S. 31. 12. AGREEMENTS AS TO CERTAIN FACTS. (a) An agreement as to evidence relates only to certain facts, from which Avith other evidence the ultimate facts are to be found. When such an agreement is accompanied by other admitted facts, the agreement as to evidence must be construed in connection with, and in the light of the other admitted facts of the case. Cincinnati v. Lead Co., 44 0. S. 243. Wisby V. Bonte, 19 0. S. 238, 247. (b) The attorneys of record placed upon an abstract of title, over their signatures, the following agreement: "It is hereby agreed that the Avithin abstract shows the true condi- tion of the title to the lands therein abstracted."' It was held that this is sufficient to authorize such abstract to be intro- duced in evidence on the trial. It was not necessary that the agreement should state that the abstract may be used as evi- dence on the trial. The truth of the abstract having been admitted, the plaintiff had a right to use it as evidence with- out further agreement. Garrett v. Hanshne. 53 0. S. 482, 496. (c) In an early case, it was held that a written agreement of counsel made for use on a rule to show cause, is not the admission of the party for any other purpose; it is, like the admission of a demurrer, to be used only in the particular matter in which it is filed. State, ex rel., v. Buchanan, Wright 233. 13. ORAL ADMISSIONS BY PARTY. (a) A party may admit that the issue joined is against him, and suffer judgment without an investigation of the facts. But a declaration by a party that he had admitted what was necessary to sustain the case, or that he would ad- § 14 METZLER'S OHIO TRIAL EVIDENCE 12 mit what was necessary, is not an admission of any particular facts, and does not dispense with their proof. Ciftings V. Baker, 2 0. S. 21, 23. Statu, ex rel., v. JJuchaiian, \^■right 2CG. (b) And an offer to confess judgment is not deemed an admission of the cause of action or of the amount to which the ]ilaintiff is entitled. An offer to confess judgment for a cer- tain sum does not entitle the other party to a judgment for at least that sum. F^oe Sertinn lloDS, Oeneral Code. Wi'itz V. V/eiiliam, G t. D. 53:1. K) C. C. Z^S. .".30. (c) The parties can not make a binding agreement requir- ing a controversy to be tried in court contrary to the estab- lished rules of judicial proceedings. No agreement would be valid that would require the court to change the rules of evidenr-p. The ^'ourts will not permit the parties to establish' by agrccr^ent ru'es of evidence v.iiich are wholly at war with the funrr — c^^tpl p: •]r-;^es of evidence. r;ft;.-fr5 v. yif'-or, 2 '^ '^' 21, 2^. Troiie V. Assurance Co.. ]3 0. I\ 20^.. (d) Where the parties to a judgment consent in open cfuirt at the time the judgment is rendered, that one or more of the defendants may be certified as sureties, it is sufficient without other evidence to authorize the entry of a certificate of such suretyship. PeVrs V. MeWilUnms, 3'i 0. R. 155. 14. ORAL ADMISSIOMS BY ATTORNEY. (a) Am attornev of record has power to do on behalf of liis client all acts, in or out of court, necessary or incidental to the prosecution, defense, or management of .the action, which affect only the remedy and not the right; and this in- cludes the power to waive objections to evidence and to enter into stipulations for the admission of facts on the trial, CTrrett v. TTanshne, .5.3 0. S. 4S2. (b) AYhen an admission is made bv counsel during trial, iinp meaninsr and effect of such admission is to be determined f'^om tV.e Ip.nguage used, in connection %vith all the circum- 13 JUDICIAL ADMISSIONS § 14 stances under -which it is made, including the other evidence adduced by the party. Pierce v. White. 22 Bull. 9S, 10 0. D. E. 5.j2. Cf. Rankin v. ilanuan, 38 fe. 4uS, 4-tU. (c) When the statements in a ])etition are ambiguous as to whether a former action was dismissed by the i)laintifi: or by the court without prejudice, the admissions of the attorney made in his brief and oral argument in the reviewing court may furnish an interpretation of the language of the petition. Piscopo V. Railway, 19 C. C. (X.S.) 29S. (d) If the attorney for plaintiff in making the ojieniiig statement of his case to the jury, admits or states facts, the existence of which absolutely precludes a recovery by him, the court may close the trial at once and giv.e judgment against him. "When such an admission is made and the defend- ant moves to arrest the cause, the defendant admits, for the purposes of the motion, the facts stated by the plaintiff, and thus there is in substance and effect an agreed statement of facts. However, opportunity should be given to the plaintiff to modify or explain or add to the statement so made. Cornell v. Morrison, 87 0. S. 215. Compton Co. v. Stewart, 25 C. C. (N.S.) 270, 27 C. D. 428. CHAPTER 11. JUDICIAL NOTICE. J."). General principles. 10. In subjects other tlian evidence. 17. Matters of general and local government. 18. Legislative proceedings. 19. Public and general law. 20. Ordinances. 21. Courts and their proceedings. 22. Generally accepted public history. 23. Geography. 24. Facts of science and of art. 2.5. Matters of common knowledge. 15. GENERAL PRINCIPLES. (a) Courts may take judicial notice of many facts ; and when facts are noticed, they need not be proved. And every noticeable fact is within common knowledge or easily ascer- tained and verified. The doctrine applies to evidential as well as to ultimate facts. And the ultimate facts which may b3 judicially noticed need not be stated in a pleading. See Thayer, Pre. Treat. Ev., Ch. 7. See Section 11331. General Code. State, ex rel., v. Smith, 44 0. S. 348, 362. (b) The law of judicial notice is not, strictly speaking, a part of the law of evidence. Even when a question of notice affects the evidence in a case, it is not strictly a question of evidence, but one of dispensing with evidence. And in such cases, courts will judicially notice only such facts, or conclu- sions from facts, as are not the proper subject of evidence. Matters that can be put in issue in the pleadings and be satis- factorily established by witnesses, will not generally be judici- ally noticed. Cincinnati v. Hamilton Co., 7 Oh. (Pt. 1), 88, 05. Pailroad v. HoflFhinos, 40 0. S. 643, 651. 16. IN SUBJECTS OTHER THAN EVIDENCE. (a) The doctrine of judicial notice applies to subjects of law other than evidence. In construing a statute, the court 14 15 JUDICIAL NOTICE § 16 ■will take judicial notice of the history of the subject-matter to which the act relates, and of all relevant facts which are matters of common knowledge. And the court will assume that the legislature knew such history and facts, and had them in mind when it passed the act. Reid V. Board of Education, 6 X. P. (X.S.) 52fi, 16 0. D. 414. See also Cross v. Armstrong, 44 O. S. 613, 622. (b) In construing a statute relating to practice, the court informed itself as to the practice by inquiring among judges and lawyers, in order to apply the rule that a uniform and general practice of courts shows the correct construction of a statute. Campbell v. Campbell, 2 C. T). 256. n C. C. 440. ir,?,. See Dutoit v. Doyle, 16 O. S. 400, 407. (c) "WTien the practice in a department in interpreting a statute is uniform, and the meaning of the statute upon exam- ination is found to ])e doubtful or obscure, the court will accept the interpretation by the department as the true one. f^'tate, ex rel., v. Akins, 18 C. C. 34n, 10 C. D. 121. Work V. Corrington, 34 0. S. 64, 75. (d) A court can not take testimony to determine the oper- ation of a statute and thereby declare it unconstitutional. AVhile a statute must stand or fall by its operation rather than by its mere form, yet in passing upon the constitutionality of a statute, a court can judge of its operation only through facts of which it can take judicial notice. State V. Xelson. 52 0. S. SS, 102. See also State, e.x rel., v. Gibson, 15 0. D. 73. 2 X. P. (X.S.) 221, 221). (e) On demurrer a court took judicial notice that the governor of the state exercises quasi-judicial functions when hearing charges against a subordinate ofificer. Bishop V. Gazette Co., 4 Bull. 1082, 7 0. T). B. 711. (f) "Where a petition Avas attacked on the ground that it was insufficient for want of an averment tliat a street railroad company was incorporated since the adoption of the constitu- tion of 1851, the supreme court took judicial notice that no statute existed prior to 1851, Avhich authorized the incorpora- tion of street railroad companies. Rider v. Fritohny, 40 0. S. 2S5, 201. § 17 METZLER'S OHIO TT.IAL EVICEKCE 16 (g) In construing a building contract the supreme court took judicial notice that few, if any, buildings are completed without changes which either increase or diminish the amount of material, as it is a matter of common knowledge. Mills-Carleton Co. v. PTnberty. S4 O. S. 81. 87. (h) There are many cases cited in the following pages of this chapter which might be treated here. In a number of these cases, the judicial-notice rule will be found, upon exam- ination, to involve no evidential matter. As related to evi- dence, however, the subject of judicial notice will be treated under the following heads : Matters of General and Local Government, Legislative Proceedings. Public and General Law. Ordinances. Courts and Their Proceedings. Generally Accepted Public History. Geography. Facts of Science and of Art. Matters of Common Kno\vledge. 17. MATTERS OF GENERAL AND LOCAL GOVERNMENT. (a) There are certain executive documents, such as official proclamations, treaties with foreign powers, and other public documents issued by the executive or legislative department, which courts will notice judicially. Since courts take judicial notice of the provisions of treaties entered into Avith our gov- ernment, evidence in the form of printed copies is superfluous. r.ailroad v. noffhines, 4fi 0. S. fi43. 651. Tn rf Ardiiinn. H X. P. (X.R.) :\'.]9. 20 0. D. -IV.. (b) The courts of this state are required by statute to take judicial notice of a municipal corporation, when it is organized by the election of its officers. And all courts shall take judicial notice of the classification of municipal corpora- tions, and their advancement, reduction and surrender of 17 JUDICIAL NOTICE § 19 powers. But, under the former municipal code, the courts ■would not take notice that a city was of a certain grade or class. Sections 3515 and 3525, General Code. Massa v. State, 3 C. C. fl, 2 C. D. 6. Akerman v. Lima, S 0. D. 430, 7 X. P. 't-J. Bolton V. Cleveland, 35 0. S. 319, 321. (c) The court of appeals in Cuyahoga county took judi- cial notice that the city of Cleveland had by a vote of its people adopted a charter. And a court will take notice of the time of the elections when members of council are elected, and when the terms of retiring members expire. ^--tanire v. Cleveland. 26 C. D. 186. 25 C. C. (X.S.) 590. 601. Chillicotbe v. Gas Co., 11 0. D. 24, S X. P. SS. (d) The courts take judicial notice of the statutory law of the state and of the population of its cities; and it is within the knowledge of the court that a particular city has no police court. Di'Mutli V. State, 7 0. App. 245, 27 0. C. A. 585, 20 C. D. 20. Tee also State, ex rel., v. De:\hitli, 96 O. S. 510, 526. IS. LEGISLATIVE PROCEEDINGS. (a) It seems to be well settled that courts will take judi- cial notice of all that is necessary to the authentication of a statute. An American court is supposed to be judicially ac- quainted with the rules, practice, and prerogatives of the Federal and state legislatures to which it is subject. So a court will take judicial notice of the journals of the legislature. State, ex rel., v. Smith, 44 0. S. 348, 361. rtate V. Buttles. 3 0. S. .'^09. 324. Backenstoe v. State, 14 0. D. 580, 2 X'. P. (X\S.) 178. (b) But where a bill is duly passed and is not copied upon the journal of either house, nor signed by the presiding officer of either house, nor enrolled as a law, nor filed regularly in the office of the secretary of state, nor regularly published with other laws of the general assembly, it does not purport to be a law, and it will not be judicially noficed. State V. Kiesewetter, 45 O. S. 254, 256. 19. PUBLIC AND GENERAL LAW. (a) It is well settled that the courts are Ijound to take judicial notice of i)iiblic and general statutes; but a private or § 20 METZLER'S OHIO TRIAL EVIDENCE 18 special statute must be specially pleaded. In pleading a pri- vate statute or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage. Eailway v. Moore, 33 0. S. 384, 391. State V. Mulford, 12 0. D. 655. See Section 11340, General Code. (b) A court could properly take judicial notice of the act of the state legislature granting to the United States jurisdic- tion at the Soldiers' Home at Dayton; and that by such act the general assembly recognized the establishment and exist- ence of that institution. Driffffs V. State, 52 0. S. 37, 55. oo (c) Our state courts will take judicial notice of all Fed- eral laws. But notice can not be taken of the statutes of a foreign country or of the laws of another state ; when relied on, they must be proved by competent evidence like any other fact material to the case. Railroad v. Welsh, SO 0. S. 81. Evans v. Reynolds, 32 0. S. 163. Kerr v. Lydecker, 51 0. S. 240, 247. Wilhelm v. Parker, 9 C. D. 724, 17 C. C. 234. (d) A corporation charter granted before the constitution of 1851 will be judicially noticed when by its terms it is re- quired to be taken and received in all courts and by all judges, magistrates, and all other public officers, as a public act. KilLn'ath v. Rates, 38 0. S. 187, lO.l (e) In suits brought by corporations of our own state, the court will, when there is a general denial, take judicial notice of their capacity to sue ; while those claiming to be foreign corporations must prove their corporate character under the general issue. Smith V. Machine Co.. 26 0. S. 562, 565. See Rrady v. Supply Co., 64 O. S. 267. 20. ORDINANCES. (a) The city courts and the mayor of a village will take judicial notice of the ordinances of their respective municipal 19 JUDICIAL NOTICE § 20 corporations. But courts other than municipal tribunals will not take judicial notice of municipal ordinances. Toledo V Libbie, 19 C. C. 704, S C. T). "jSO. Gates V. Cleveland, IS C. C. (X..S.) 349. Chittenden v. Columbus, 16 C. D. 531, 5 C. C. (X.S.) S4. Euclid V. Bramley, 20 C. C. (X.S.) 453. (b) If a court holds an ordinance invalid, it will not take judicial notice of the existence of a preceding ordinance relat- ing to the same matter, Avhich was repealed by the ordinance declared invalid and Avhich would be revived by the holding that the second ordinance is invalid when the petition makes no reference to the existence of another ordinance. Ilengst V. Cincinnati, 9 0. D. 730. 7 X. P. 1. (c) If it is sought to have the validity of an ordinance, or the sufficiency of the affidavit under the ordinance deter- mined, the ordinance should in some way be brought into the record. For this purpose, a reviewing court will not take judicial notice of the ordinance. Xelson V. Berea, 21 C. C. 7S1, 12 C. T). 320. Evans v. \V0. See Bank Co. v. Cereguti, 21 C. C. (N.S.) 38, 25 C. D. 303. Cf. Smith V. Bank, 13 C. C. (N.S.) 122, 22 C. D. 842. (c) Where an action is brought for damages oti account of false arrest and imprisonment, the burden is on the arrest- ing officer to show that such a state of facts existed as justi- fied him in making the arrest. Tracy v. Coffey, 8 C. C. (X.S.) 88, 18 C. D. 579. See also Reinhard v. City, 49 0. S. 257, 66. § 47 METZLER'S OHIO TRIAL EVIDENCE 54 (d) In an action by a servant against the master for dis- charging him before the expiration of his term of service, the master must aver and prove that the discharge was for reason- able cause. It is error to charge that the burden of proof rests upon the servant to show that the discharge was with- out any just cause. Baird v. Telephone Co., 10 C. C. (X.S.) 163, 20 C. D. 107. (e) In an action for an agent's commissions, the defense of dual agency can not be shown under a general denial, but must be specially pleaded ; and when so pleaded, the burden of proof is on the defendant to establish it. Fugman v. Trostler, 24 C. C. (X.S.) 521. (f) An allegation in the answer of an insurance company that certain statements made by the insured were Avillfully false, with a denial thereof in the reply, imposes upon the de- fendant the burden of proving such falsity. Insurance Co. v. Barnes, 1.5 C. C. (N.S.) 407, 25 C. D. 380. (g) It is a general rule that a defendant must insist on the statute of limitation as a bar by demurrer or answer in order to obtain the benefit of the statute. A general denial Avill not raise the question. But this rule does not apply in ejectment. Towsley v. Moore, 30 0. S. 184. Kelly V. Wiseman, 2 Disney 418. Kyser v. Cannon, 29 0. S. 359. Rhodes v. Gunn, 35 0. S. 387, 91. (h) In an action under the code for the recovery of real estate, the legal title of which is in the plaintiff, a defense grounded on an equitable title and right of possession under it in the defendant, is new matter and must be pleaded. Powers V. Armstrong. 36 0. S. 357. Stewart v. Hoag, 12 0. S. 623. (i) Release as a defense does not negative a plaintiff's cause of action, but it is a bar to a judgment; and for this reason the burden of proof to establish the release is upon the defendant. Perrv v. O'Neil, 78 0. S. 200, 25. 55 THE BURDEN OF PROOF §49 48. NEW MATTER IN REPLY. (a) If the defendant sets up in his answer new matter as an estoppel, and the plaintiff relies on a record of a former adjudication of the same matter, he should plead and prove the former judgment. Fanning v. Insurance Co., 37 0. ?>. .'?44. (b) Where in an action for personal injuries, the defend- ant pleads payment and release, and the plaintiff's reply does not deny the payment, but avers that the release was fradu- lently obtained, the burden is on the plaintiff to sustain this new matter in avoidance. Spronk v. Addvston Co., 10 C. D. 675, 19 C. C. 714. But see Perry v. O'Xeil, 78 0. S. 200. (c) When the answer of a surety sets up that an exten- sion of time was given to the principal without the consent of the surety, he must make this appear by a preponderance of evidence. When the creditor admits that the extension was without the knowledge or consent of the surety, and relies upon a subsequent promise of the surety to pay if the prin- cipal does not, the burden of proof is upon the creditor. Bramhle v. Ward, 40 0. S. 267. Schmidt v. Cordes, 2 C. S. C. R. 294, 13 0. D. R. 911. 49. DENIAL AND NEW MATTER. (a) It is a general rule that when a defendant makes a denial and at the same time pleads new matter, the plaintiff has the burden of proof on the issue raised by the denial ; and the defendant assumes the burden on the new matter if it is denied. The same principle applies when the plaintiff pleads both in the reply. Plaintiff's denial places the burden of proof on the defendant to prove every material allegation denied; and new matter alleged in a reply will be deemed controverted by the adverse party as upon a denial or avoid- ance as the case may require. Section 11378, Ceneral Code. Section 11329, General Code. § 51 METZLER'S OHIO TRIAL EVIDENCE 56 50. ANTICIPATING A DEFENSE. (a) In some cases the burden of proof of the issue may be either on the plaintiff or on tlie defendant, depending on the form of the pleadings. For instance, in an action on a note for necessaries furnished to an insane person, the plaintiff may declare on the note generally without disclosing the incapacity of the defendant. Then it is a complete bar to plead the defendant's incapacity at the time of the making of the note; and this the defendant must prove if averred and denied. However, the plaintiff may take another course. He may anticipate the defense by alleging that the defendant was insane when the note was executed, but that it was given for necessaries. If this latter allegation is denied, it is incum- bent on the plaintiff to prove it. Hosier v. Beard, 54 0. S. 398, 407. 51. NATURE OF NEW MATTER. (a) Facts stated in an answer which could have been given in evidence under a denial of the averments in the peti- tion, do not constitute new matter. In other words, whenever the legal effect of the allegations in an answer is a mere denial of the averments in the petition, such allegations can not be regarded as new matter. Corry v. Campbell, 2.5 0. S. 134, 40. Insurance Co. v. Kelly, 24 0. S. 345. (b) In an action to recover damages for the breach of a contract, averments in the answer setting up a different con- tract are immaterial, except as they operate to deny the mak- ing of the one sued on ; and they do not constitute new matter. The burden remains on the plaintiff to prove the contract as alleged in the petition. Simmons v. Green, 35 0. S. 104. Fiedeldey v. Reis, 12 Bull. 771, 9 0. D. R. 296. List & Son Co. v. Chase, 80 0. S. 42. Leisy v. Zuellig, 7 C. C. 423, 6 C. D. 175. Findlay Bros. Co. v. Eiser, 17 C. C. (N.S.) 406. (c) Where the petition states a cause of action for money had and received, and the defendant in his answer admits the 57 THE BURDEN OF PROOF § 51 receipt of the amount, but alleges that the sum was received in advance upon a contract which the plaintiff has violated, the burden of jn-oof is upon the plaintiff. The statements in the answer can not be i-egarded as matter in confession and avoidance, but rather as a statement of facts showing the allegations of the petition to be untrue. McXutt V. Kauffman, 26 0. S. 127, 30. See Schmalstig v. Taft, 19 N. P. (N.S.) 51.3, 27 O. D. 313 (d) When, by way of answer to a petition in the short form on an account for services rendered, the defendant, in addition to pleading the general denial, further alleges that the services performed by the plaintiff Avere rendered and performed by him under an express contract, the terms of %vhich preclude the recovery of compensation therefor, such averments do not constitute an affirmative defense of new matter, but is merely a denial. But if the defense admits the services under a special contract and pleads payment, it is in legal effect an affirmative defense, the burden of maintaining which is on the defendant. Dykeman v. Johnson, 83 0. S. 126. Sanns v. Xeal, 52 0. S. 56. (e) In an action on a contract, where the answer avers that the secretary of the company had no authority to make the contract sued on, the answer must be regarded as a denial and not as new matter. Insurance Co. v. Kelly, 24 0. S. 345, 58. (f) In an action on a contract, consideration must be averred and proved by the plaintiff. And if the answer de- tails facts that show a want of consideration, it is not new matter; and the burden of proof remains on the plaintiff. Piatt V. Scribner, 9 C. T). 771, 18 C. C. 452. (g) An answer denying that the defendant committed an act charged in the petition, and alleging that it w^as com- mitted by a third person, is not a plea in confession and avoidance, but merely a special denial. nolTman v. Oorrlon. 15 0. S. 211, 5. Cf. Ridenour v. Mayo, 29 0. S. 138. §52 METZUER'S OHIO TRIAL EVIDENCE 58 (h) In an action for the recovery of damages for the alleged wrongful seizure and conversion of goods to which the plaintiff claimed title, the defendant answered simply alleging fraud in the assignment under which the plaintiff claimed. This did not admit that the plaintiff ever had title to the goods, and was, in effect, only a special denial of the title alleged in the petition. This state of pleading gave the affirm- ative of the issue to the plaintiff. Beatty v. Hatcher, 1.3 O. S. 115. 9. (i) Where a petition is filed to recover real property, and the answer denies the title alleged in the ])etition, other de- fenses in the answer setting up title in the defendant are not material, as the questions thus sought to be presented properly arise on the trial under the general denial of title in the plaintiff. Rhodes V. Gimn, 35 O. S. 387. Kyser v. Cannon, 29 0. S. 359. (j) It is true as a general rule that matters which may be given in evidence under the general issue should not be specially pleaded. There is an exception, however, when by pleading the facts in the answer an issue is tendered which is much narrower than the general issue ; and the issue thus tendered involves all the facts which are in dispute between the parties. The prime object in pleading is to narrow the controversy by joining issue only upon such material facts as are really in dispute. Therefore, an answer that the de- fendants who are sued as an association were and are a cor- poration, and that the contract sued on is a corporate one, may, though provable under a general denial, be regarded as setting up new matter in defense, and not as stating mere evidence disproving the allegations of the petition. Ridenour v. Mayo, 29 O. S. 138, 145. 52. PROOF OF DEFENSES TO NOTES. (a) Where in a suit upon a promissory note, the defense is that the note was given or obtained without valuable con- sideration, the plaintiff has the affirmative of the issue, and 59 THE BURDEN OF PROOF § 53 the burden of proof rests upon him. The same rule applies Avhere the answer allo«res that the defendant did not deliver the note. Ginn v. Dolan, 81 0. S. 121. Bode V. Werner, 16 C. D. 206, 4 C. C. (X.S.) 158. Woodbury v. Bollmeyer, 20 C. C. (X.S.) 113. Cf. Ellen V. Thrasher, 16 C. C. (X.S.) 469. (b) Where the defendant, in an action on a note, denies that the plaintiff became the owner in good faith before due, but on the contrary was aware of infirmity in the note, and that defenses would be interposed thereto, and testimony is offered in support of these allegations, the burden of proof is cast upon the plaintiff to establish his title, if he has not already done so, by affirmative proof. Bank v. Litt, 5 0. App. 439, 26 C. C. (X.S.) 145, 30 C. D. 361. (c) But a plea of failure of consideration or a plea of pay- ment presents a case very different from the defense of no consideration. These defenses confess and avoid. They are affirmative defenses; and the burden is upon the defendant from the beginning to the end. Ginn v. Dolan, 81 0. S. 121, 9. (d) In an action on a promissory note where the petition alleges that there is a specified amount due thereon from the defendant to the plaintiff, an answer alleging payment of the note in full is an answer setting up new matter in confession and avoidance. And if payment is denied by the plaintiff, the flcfendant has the burden of proof. FowRter v. Goddard, 25 0. S. 276. Knauber v. W'liiuler, 6 A. L. R. 367, 5 0. D. R. 516. 53. PROOF OF PERFORMANCE. (a) Where a plaintiff seeks to recover damages for breach of contract, the burden of proof is on him to show either sub< ptantial performance or tender of performance of the condi- tions on his part to be performed. In pleading the perform- ance of conditions precedent in a contract, it is sufficient to ^53 METZLER'S OHIO TRIAL EVIDENCE 60 state that the party duly performed all the conditions on his part. If this is denied, the party pleading has the burden of proof. Thomas v. Matthews, 94 0. S. 32. See Moody v. Insurance Co., 52 0. S. 12, 17. Section 11339, General Code. (b) The condition of insurance policies as to arbitration or appraisement in the event of disagreement is a condition precedent ; and to entitle the insured to maintain an action to recover under the policy, the burden lies upon him to show that he has performed, offered to perform, or has a legal excuse for non-performance. Graham v. Insurance Co.. 75 0. S. 374. Fire Association v. Appel, 76 0. S. 1, 7. Insurance Co. v. Titus, 82 0. S. IGl. Kandar v. Aetna Co., 10 C. C. (X.S.) 449, 20 C. D. 260. (c) The conditions precedent, performance of which the plaintiff is required to plead in an action on such a policy, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, such as giv- ing notice and making proof of the loss, furnishing the cer- tificate of the magistrate when required by the policy, and, it may be, other acts of like nature. Moody V. Insurance Co., 52 0. S. 12. Armstrong v. Insurance Co., 22 C. C. (X.S.) 129, 4 0. App. 46. See Insurance Co. v. Hillard, 19 C. C. (X.S.) 7S. 2 0. App. 223, 25 C. D. 131. (d) But conditions in a policy which provide that it shall become void, or inoperative, or the insurer relieved wholly or partially from liability upon the happening of some event, or the doing or omission to do some act, are matters of defense; and to be available they must be pleaded, and their breach alleged and proved. Moody V. Insurance Co., 52 0. S. 12. Interstate Co. v. Bird, 10 C. D. 211, 18 C. C. 488. Knights V. Everding, 11 CD. 419, 20 C. C. 689. Hall V. Aid Assn., 6 C. C. 137, 3 C. D. 384. Mumaw v. Insurance Co., 97 O S. 1. Insurance Co. v. Zimmer, 97 O. S. 14. 61 THE BURDEN OF PROOF S 06 (e) In an action upon a policy of life insurance contain- ing a proviso that it should be null and void in case the insured should under any circumstances die by his OM^n hand, issue was joined as to whether his death was within the pro- viso ; and it was held on the trial that the burden was upon the company to show that the death was within the proviso. Schultz V. Tnstirance Co., 40 O. ?. 217. (f) This principle applies to other contracts. When a common carrier claims immunity for the loss of goods on the ground that such immunity is secured by a special agreement, the burden of proof is on the carrier to show that the loss occurred Avithin the terms of the agreement, and also that the loss occurred without fault on his part. Union Express v. Graham, 2G 0. ?. 505. U. S. Express v. Backman, 2S 0. S. 144. Penn. Co. V. Yoder, 15 C. D. 32, 1 C. C. (X.S.) 233. See also Gaines v. Trans. Co., 28 0. S. 418. Cf. Walls V. Express Co., 19 N. P. (N.S.) 156, 28 0. D. 50. (g") And the burden rests upon a defendant lessee to show that it was prevented from mining and removing the minimum tonnage by a cause beyond its control, Avithin the meaning of the saving clause in the lease, in order to relieve itself from liability for the specified minimum royalty. Coal Co. V. Coal Co., 86 0. S. 140. (h) However, the burden of proof is upon the plaintiff to establi.sh performance ; and the burden is not changed by the fact that the answer, in addition to a denial of performance by the plaintiff, specifically enumerates several particulars in V l:ieh such failure to perform consists. The answer contains uo new matter, Mehurin v. Stono, 37 0. S. 49. (i) "Where, in an action brought by the obligee in a bond, the allegation of j)erformance in plaintiff's petition is con- troverted by the answer of the surety, wlio alleges and pleads specific breaches of said contract, the burden is on the plain- tiff to establish on the trial by a preponderance of the evi- dence the facts showing such performance. It is error for the court in such case to instruct the jury that the burden is on § 54 METZLER'S OHIO TRIAL EVIDENCE 62 the defendant, the surety, to show and prove that such viola- tion and non-performance by plaintiff, was without his, the surety's consent. Brewing Co. v. Schnltz, 68 0. S. 407. 54. PROOF OF A SINGLE FACT. (a) The burden of proof of the case is to be distinguished from the burden of proving some single fact. The burden of proving any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the burden of proving that fact shall lie on some particular person. (See Railway v. Eoos, 6 C. D. 33, 9 C. C. 201, 5.) It is otherwise provided by law in the rules relating to presumptions and legal prima facie cases. For example, if a party charged with rape relies on incapacity as a defense, under this rule he must prove it, notwithstanding the real burden of proof is on the state. But if it appears on the trial that the accused is under fourteen years of age, the burden is on the state to prove capacity to commit the crime, as there is a presumption of law to the contrary, Hiltabiddle v. State, 35 0. S. 52. See Railway v. Ward, 2 C. C. (X.S.) 256, 15 C. D. 399. (b) If a party Avishes the court or jury not to accept as true an inference naturally arising from evidence adduced, the burden is upon him to make an explanation, modification or denial by cross-examination or otherwise. And where a reasonable inference is drawn by the trial-court and it is not modified or rebutted by the adverse party, and he remains silent when confronted by such evidence, a reviewing court should sustain the trial-court. See Hinz v. State, 15 C. C. (X.S.) 88, 23 C. D. 296. (c) When a witness testifies that he mailed a letter, in the absence of any inquiry as to the mode in which he mailed it, the presumption is that he mailed it in accordance with the regulations of the post-ot^ce department. Grain Co. v. DeFranco, 16 C. C. (N.S.) 182. (d) Where the evidence shows that certain persons are brothers and sisters of another, it will be presumed, in the 63 THE BURDEN OF PROOF § 55 absence of evidence to the contrary, that they were brothers and sisters of the full-blood and legitimate. Ossman v. Sclimitz. 4 C. C. (X.S.) 502, 14 C. D. 700. (e) AYhere the defendant admitted that he owned the team and wagon, from tlie negligent management of wliieh the plaintiff claimed to have suffered injury, it was held error 1o take the case from the jury on the ground that no evidence of agency had been introduced. Walton V. Ensign, 6 C. C. (X.S.) 300. 17 C. D. 505. Cf. Coal Co. V. Rivoiix, 88 O. S. 18. 55. OPEN AND CLOSE— GENERAL PRINCIPLES. (a) Section 11447 of the General Code (R. S. Sec. 5190), which prescribes the order of conducting trials, provides that the party whp would be defeated if no evidence were offered on either side, first must produce his evidence ; and the ad- verse party must then jiroduce his evidence. Since the party Avho affirms would be defeated if no evidence were offered on either side, it is necessary that he open and close — open by making out a case for the jury, and close with a preponder- ance of the evidence in his favor. (b) As a general rule, the party holding the burden of proof should open and close the evidence and the argument. In determining which party should begin, it is not so much the form of the issue that is to be considered as the substance and effect of it. The judge should consider what is the sub- stantial fact to be made out, and on whom it lies to make it out. ivrontgomery v. Swindler, 32 0. S. 224. Xeff V. Cincinnati, 32 0. S. 215, 9. (c) Where there are several issues, if the plaintiff holds the affirmative of any one, or if any evidence material to his case is required of him, he should begin. But when l)y the pleadings, it is apparent that no evidence is required from the [)laintiff, the defendant should begin. :\rontgomcry v. Swindler, 32 0. S. 224. Xefr V. Cinfintiati. .32 O. S. 215, 9. Standart v. Shcltoii, 1 W. L. M. 40.5, 2 0. D. R. 116. §56 METZLER'S OHIO TRIAL EVIDENCE 64 (d) In special proceedinfrs for which there is no special statutory provision, the subject must necessarily be governed by the rules of the common law, or in analogy to the corres- ponding provision of the code. In either case, the result will be the same ; for there is no substantial difference in this re- spect between the practice prescribed by the code and that of the common law. Neff V. Cincinnati, 32 0. S. 215, 0. Insurance Co. v. Paver, 16 Oh. 324, 30. 56. OPEN AND CLOSE— ILLUSTRATIONS. (a) In an action to recover damages for assault and bat- tery, where an issue was joined on an answer justifying the alleged trespass, it was held that the right to begin and close was in the plaintiff. In actions for unliquidated damages, with pleas in justification whicli are put in issue by the reply, both reason and weight of authority is that the plaintiff should open and close. This rule applies in a libel case, Dillo V. Lovell. 37 0. S. 415, 7. Dragoo v. Whisner. 31 0. S. 192. Gazette Co. v. Bishop, 7 Bull. 60, 6 0. D. E. 1113. (b) In an action for the recovery of real estate, the de- fendant having set up the statute of limitation in bar of a claim for rents and profits, claimed the right to open and close the argument, which was refused. The plaintiff had opened the testimony, without objection, and had given evi- dence to show the value of the rents and profits, a matter in issue; and the court properly allowed him to open and close the argument. Harrison v. Castner, 11 0. S. 330, 47. (c) But where an answer admits the averments of the petition and sets up new matter as a defense, which consti- tutes the only issue, the defendant is entitled to open and close. So where the defendant in his answer to the petition on a note pleads the defense of payment, and this is the only issue, he is entitled to open and close. Hence, if the plaintiff is allowed to open, and the defendant then gives evidence tending to prove payment, and the plaintiff rebuts this by 65 THE BURDEN OF PROOF § 57 proving alleged admissions by the defendant, a refusal of defendant's evidence to rebnt the evidence of admissions is prejudicial error. Organ Co. v. Bigrrs. 22 C. C. 3fl2. 12 C. D. 497. Fewster v. Goddard, 25 0. S. 276. Stone Co. v. Whigham, 23 C. C. (N.S.) 529. Gerlaugh v. Riley, 2 X. P. (X.S.) 107. U 0. D. 557. 57. OPEN AND CLOSE— ERROR IN RULING. (a) In determining the right to open and close upon a complicated state of pleading, a liberal discretion is allowed to the court trying the cause ; and this discretion will not be revieAved except upon a ])]ain case of error; and in a case tried to the court, it is not error to give the open and close of the argument to the side not having the burden of proof. The court may hear that side first as to Avhich there is a doubt. Montgomery v. Swindler. 32 0. S. 224. Rolling Mill v. Packard. 1 C. C. 76, 1 C. D. 46. (b) The general rules must be so often applied or re- laxed according to circumstances apparent only to the trial- couit. that a strict uniformity would in some instances prove injurious to the interests of justice. Therefore, a discretion is confided to the trial-court, which should not be exercised with arbitrary strictness or indulgence. Tlunyan v. Price, 15 0. S. 1, 5. (c) A judgment will not be reversed for error in deciding the right to open and close, unless the error is prejudicial and the record shows affirmatively that there were no s{)ecial rea- sons for directing the order of trial. The presumption is in favor of the correctness of the ruling of the court belov.\ Dille V. Lovell, 37 0. S. 415. Minzey v. :Mar(y. 6 C. C. (X.S.) 593. 15 C. D. 593. Loudenback v. Lowry, 4 C. C. 65, 2 C. D. 422. (d) Opening a case to let in further evidence for plaintif after he has rested, and while a motion to direct a verdict for- the defendant is pending, is a |)roper exercise of the court's discretion. And it is not an abu.se of discretion to allow the .MKIZI. Kit's IIMAI i;V. 3 § 58 METZLER'S OHIO TRIAL EVIDENCE 66 plaintiff to be recalled for further cross-examination after his evidence is all before the jury and he has rested his case. Hackman v. Cedar, 5 C. D. 293, 13 C. C. 61S. Brandon v. Railway, 8 C. D. 642, 17 C. C. 705. 58. REBUTTING EVIDENCE. (a) When all the evidence in chief has been adduced, the parties will then be confined to rebutting evidence, unless the court for good reasons in furtherance of justice permits them to offer evidence in their original cases. But the judgment Avill not be reversed for permitting evidence in the original case to be offered under such circumstances, unless it appears affirmatively that good reasons in furtherance of justice were not shown. Section 11447, General Code. Morris v. Faiirot, 21 0. S. 155. Sullivan v. Fogarty, 3 X. P. 79, 6 0. D. 130. (b) In the trial of a cause, the allowing of evidence in chief to be introduced out of its order rests in the sound dis- cretion of the court. A case will not be reversed for such departure, unless it prevented the party from having a fair trial. And it is not the rule that any departure from the regular order is to be regarded as erroneous unless the record shows sufficient reason for the departure; for the presumption is in favor of the correctness of the ruling of the court below. Webb V. State. 29 0. S. 351. 6. Schaal v. Ileck, 8 C. D. .590. 17 C. C. 3S. (c) As a general rule, the party upon whom the affirma- tive of an issue devolves is bound to give all his evidence in support of the issue in the first instance ; and he can give only such evidence in reply as tends to answer the new matter introduced by his adversary. Any relaxation of this rule is but an appeal to the sound discretion of the court in which the issue is tried. However, a court would not ordinarily be justified in closing a case, until all the evidence offered in good faith, and necessary to the ends of justice, had been lieard. Graham v. Davi?. 4 0. S. 362, 81. Mehurin v. Stone. 37 0. S. 49. 59. Railway v. Wales, 11 C. C. 371. 5 C. D. 168. Ptrauss V. Dashnev, 12 Bull. 182, 9 0. D. R. 329. 67 THE BURDEN OF PROOF § 58 (d) The trial-court should not reopen a case for such evi- dence when a party, without fault on his part, by reason of the discharge of Avitnesses. or otherwise, would be cut off from an answer to the new testimony, which he might have made if it had been regularly given. Yet, if the record fails to show that the party was deprived of the right to answer, such action is not in legal view prejudicial. Donald v. State. 11 CD. 483, 21 C. C. 124. (e) A reasonable time to recall witnesses and make answer to the new evidence should be allowed. It is not an abuse of discretion to permit the admission of evidence out of order, when the court at the time states to opposing counsel that he may offer evidence to meet it. Taylor v. State, 12 C. C. (N.S.) 4SG, 21 C. D. 602. Cincinnati v. McLaughlin, 12 C. C. (N.S.) 220, 21 C. D. 503. (f) When both sides have rested and one of the parties has left with the assurance that no more evidence would be introduced by the other side, it is not an abuse of discretion to refuse to receive additional and material evidence there- after offered by the party giving such assurance. Supreme Conclave v. Fife, 16 C. C. (N.S.) 205, 27 C. D. 638. (g) And where evidence, if admissible at all, is evidence in chief, and the party omits to offer it then, and without explanation of the omission offers it in rebuttal, and it is then rejected by the trial-court, the supreme court will not pass upon its competency. Hills V. Ludwig, 46 0. S. 373. (h) Further evidence may be admitted in the discretion of the court in the interest of justice after the cause has been finally submitted, and the jury are deliberating on their ver- dict. Tn such a case, it is error to refuse to hear new evidence discovered by chance which is not cumulative, and which is proffered as a new defense. Koevenv v. Ottman, 26 Bull. 65, 11 O. D. T5. 301. Miller V. McLean, 11 C. C. (N.S.) 424, 21 C. D. 64. (i) And even in criminal cases, it is within the discretion of the court to grant permission to the prosecution to intro- §59 METZLER'S OHIO TRIAL EVIDENCE 68 duce additional evidence in chief after the close of the defense, and after requests for instructions to the jury have been passed on. Hughes V. State, 9 C. C. (X.S.) 369, 19 C. D. 237. 59. PROPER REBUTTAL. (a) Where a plaintiff holding an unfiled chattel mortgage brings an action in replevin against a defendant holding a later, but duly filed, chattel mortgage, and the answer is simply a denial, the plaintiff need not show in chief that the latter mortgage is not superior to his, but may prove this in rebuttal. Smith V. Simper, S C. D. 308, 15 C. C. 375. (b) In an action on an insurance policy, where the answer sets up an appraisement as fixing the amount of the loss, and the reply attacks the appraisement, the court may allow the evidence to follow the order of the issues; but it is not error for the court to require the plaintiff to put in all his evidence on this issue with his other evidence. Insurance Co. v. Romeis, S C. D. 633, 15 C. C. 697. (c) Evidence of facts which are first introduced in a sase by way of rebutting evidence, may be rebutted by other proper evidence. So, if new facts are brought out in the plaintiff's rebutting evidence, the defendant has the right to surrebut. Morris v. Faurot, 21 0. S. 155. Benefit Assn., v. Harding, 7 C. C. 438, 4 C. D. G6S. See also Fewster v. Goddard, 25 0. S. 276. (d) In a triangular case which results from the raising of an issue between defendants, a defendant oft'ering evidence in reply to the defense of a co-defendant, should be ])ermitted to adduce his evidence, because this evidence woukl be a part of the case in rebuttal of the regular defense and not a part of the plaintiff's case in chief. Wylie V. King, 18 C. C. (X.S.) 304. CHAPTER V. THE SHIFTING BURDEN. 60. The burden of proof never shifts. 61. The duty of rebutting shifts. 62. Cases for the court. 63. The charge. 64. Error in the charge. 65. Illustrations of shifting. 66. The effect of negative allegations. 67. Clear evidence — Geneial principles. 68. Clear evidence to vary writings. 69. Clear evidence to establish a trust. 70. Clear evidence to reform an instrument. 71. Clear evidence to vary commercial paper. 72. Clear evidence to affect official action. 73. Clear evidence to establish lost instruments. 74. Clear evidence in miscellaneous cases. 75. Clear evidence in transactions not favored. eO. THE BURDEN OF PROOF NEVER SHIFTS. (a) The burden that rests on a party to establish the material averments of his cause of action by a preponderance of all the evidence, never shifts. The party that maintains the affirmative of an issne carries the burden of proof throujzh the Avhole case, although he may be aided by such a rebuttable ])resumption of law, or such facts, as would prima facie sup- port his contention. Ginn v. Dolan, 81 0. S. 121, 7. Insurance Co. v. LaBoiteaux, 4 A. L. E. 1, 5 0. T). P.. 242. Van Ingen v. Peterson, 12 C. C. (N.S.) 253, 21 C. D. rm. (b) In an action brought on a contract which was daimcd to be absolute, but which was denied by the answer, the evi- dence introduced by the defendant tended to show a condi- tional contract; and it was hold that the burden of proof did not shift; and that the court erred in charging the jury 69 § 60 METZLER'S OHIO TRIAL EVIDENCE 70 that the burden of proof was upon the defendant to prove that the contract was a conditional one. Leisy v. Zuellig, 7 C. C. 423, 6 C. D. 175. (c) In an action against the bailees of a team of horses for causing the death of one of the horses and injuring the other by negligently driving them, the burden of proof is on the bailor to prove negligence ; and it is not shifted by show- ing that the horses were sound when delivered to the bailees, McDonald v. Miser, 2 C. C. (N.S.) 313, 15 €. D. 753. Cf. Heckler v. Transfer Co., 17 X. P. (X.S.) 294, 25 0. D. 171. (d) Where, in a suit upon a promissory note, the defense is that the note was given or obtained without a valuable con- sideration, the plaintiff has the affirmative of the issue ; and the burden of proof rests upon him at every stage of the case to show a consideration for the note by a preponderance of the evidence. This burden never shifts. Ginn v. Dohin, SI 0. S. 121. 7. (e) Where a note shows on its face that it is barred by the statute, and a payment indorsed thereon is relied upon by the plaintiff to bring it within the exception, the plaintiff has the burden of proving that it was, in fact, made, when the defendant denies the payment. And the introduction of such note in evidence does not shift the burden of proof. Keel V. Pvudisell, 13 C. C. 190, 7 C. D. 404. Schmith v. Conlton, 22 C. C. (X.S.) 174. (f) In an action for damages for a personal injury, the burden of proving by a preponderance of evidence the partic- ular negligence alleged is at all times upon the plaintiff; and while proof of facts sufficient to create a prima facie presump- tion of negligence against the defendant, casts upon him the burden of producing evidence of equal M^eight, in order to control or destroy such presumption, yet proof of such facts does not impose upon the defendant the burden of establishing affirmatively by a preponderance of evidence that he was not negligent. Klunk V. Pvailway, 74 0. S. 125. See also Ilutson v. Hartley, 72 O. S. 262. State V. Austin, 71 0. S. 317 71 THE SHIFTING BURDEN §61 61. THE DUTY OF REBUTTING SHIFTS. (a) The term "burden of proof" is used in different senses. Sometimes it is used to signify the burden of making or meet- ing a prima facie ease, and sometimes the burden of produc- ing a preponderance of evidence. During the progress of a trial it often happens that a party gives evidence tending to establish his allegation, sufficient it may be to establish it prima facie ; and it is sometimes said that the burden of proof is then shifted. All that is meant by this is that there is a necessity of evidence to answer the prima facie case, or it will prevail ; but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial. In other words, the duty of introducing evidence to meet a prima facie case shifts back and forth ; but the burden of proof at all times rests upon him who affirms. KluTik V. Railway, 74 0. S. 125, 1.34 and 136. See Judge v. Benefit Assn.. 20 C. T). 133, 10 C. C. (X.R.) 473, S3. McDonald v. Miser, 1.5 C. D. 7.53, 2 C. C. (X.S.) 313, S. (b) This use of the term "burden of proof" in different senses has been the cause of much confusion. The term should be used exclusively to signify the burden on the party holding the affirmative to make proof by a preponderance of the evi- dence ; and no part of the term should be used when speaking of the duty or necessity of adducing evidence to rebut a prima facie case. It would be much better to adopt some terra that would mark the distinction, such, for instance, as the duty or necessity of rebutting, or some similar short expression. Ac- cordingly, it would add to clearness, if the rule quoted in Railway v. Roos were stated as follows : The burden of proof never shifts; but the duty of adducing evidence is shifted by presumptions of law, by presumptions of fact of the stronger kind, and by evidence strong enough to establish a prima facie case. See Railway v. Roos, 9 C. C 201, :5; fi C. T) .33. 5. (c) The party holding the burden of proof has also the duty of beginning tlie evidence. This party tries to produce § 62 METZLER'S OHIO TRIAL EVIDENCE 72 affirmative conviction by establishing a prima facie case. The adverse party tries to prevent this either by reducing the pro- bative force of such prima facie case or by establishing one of his own. If a prima facie case is made by the first party, the burden of proof remains Avith him ; but the duty of adduc- ing evidence is obviously shifted to the adverse party. This is the duty of rebutting a prima facie case. Now, if the adverse party in his turn destroys such prima facie case by making one on his side, then, of course, this duty of adducing rebutting evidence is shifted back to the first party. See ]\rcDonald v. Miser, 15 C. D. 753, 2 C. C. (X.S.) 313, 8. (d) However, when all the evidence is before the jury, the court in its charge is not required, upon this or that as- sumption and in respect to this or that item of proof, to instruct the jury how this duty or burden may have been changed from one side to the other. There might be no end to such as;sumptions : and confusion rather than a more clear apprehension of the just weight of all the evidence would be created in the minds of the jury. Mears v. Mears, 15 0. S. 90, 100. 62. CASES FOR THE COURT. (a) The duty of adducing rebutting evidence is of con- siderable importance in civil jury cases. It is a well-known fact that if the party holding the affirmative fails to adduce a scintilla of evidence upon every material allegation, the court may dispose of the case as matter of law ; but when he adduces the required amount of evidence, then the case is one for the jury. And this case continues to be one for the jury until the other party makes a prima facie case that is not met by some evidence tending to rebut it. And every prima facie case, whether made by the mass of evidence or by a presumption, that is not met by some evidence tending to rebut it, makes a case for the judge. The failure of a party to answer a prima facie case is an admission, implied from silence; it is therefore incumbent upon such party, if he desires to refute, change, or modify the implied admission, to present evidence which Avill have that effect. If he fails to adduce some such evidence, the judge 73 THE SHIFTING CURDEN § 63 may, as matter of law, decide in favor of the adverse party. It seems, however, that a clear case must be made in favor of the party holding the affirmative, to authorize the judge to direct a verdict in his favor. (See cases in chapter on "Court and Jury.'"! (b) In civil cases, when a presumption arises affecting the whole issue, it is, in the absence of rebutiing evidence, so far controlling that the court may dismiss the petition or direct a verdict. And when a prima facie case in favor of a i)arty is made out, he may rest his case ; and if no evidence is offered to the contrary, he is entitled to a directed verdict. Wright V. Pliill, S3 0. S. 385, 07. Ecde V. Werner, 4 C. C. (X.S.) 15S, 16 C. D. 206. (c) In an action to recover damages for personal injury, if the proof of the cause of the injury raises a presumption of negligence (res ipsa loquitur), and there is not a scintilla of evidence to overcome that presumption, it is the duty of the court to direct a verdict for the plaintiff. ITalterman v. Hansard, 4 0. App. 268, 22 C. C. (X.S.) 443. Sec also Railroad v. Mowery, 36 0. S. 418. Traction Co. v. Holzenkamp, 74 0. S. 379. Light & Power Co. v. Bell, 5 C, C. (N.S.) 321, 16 C. D. 691. (d) And where the testimony of the plaintiff raises a clear presumption of negligence on his part which contributed directly to his injury, and no testimony or tangible evidence is offered by him tending to rebut that presumption, it is the duty of the trial court to direct a verdict on motion of the defendant at the conclusion of plaintiff's evidence. Railroad Co. v. :McClellan, 69 0. S. 142. Railway v. Cornwall, 14 C. C. (N.S.) 209, 24 C. D. 124. 63. THE CHARGE. (a) Since it is for the jury to decide whether a prima facie case has been destroyed by the evidence introduced to rebut it (Newnam v. Cincinnati, 18 Oh. 323, 334), there is need of considering the preponderance rule especially with reference to the charge. The court must make it plain to the jury that the party holding the affirmative is the only party § 64 METZLER'S OHIO TRIAL EVIDENCE 74 ■who is required to produce a preponderance of evidence to secure the verdict ; and that his opponent need do no more than counter-balance the presumption or prima facie case against him. Giiin V. Dolaii, SI 0. S. 121, 127. Fagan v. WeWi, 10 C. C. (N.S.) 177, 180. (b) So when a prima facie case is made against the party holding the burden of proof, either by the mass of evidence or by a presumption, he must overcome such prima facie case "by a preponderance of the evidence. But when either kind of prima facie case is made by the party holding the burden of proof, his opponent is not required to overcome it by a preponderance of the evidence. It is necessary for the oppo- nent to adduce evidence only of equal weight in order to de- stroy the effect of the prima facie case. In other words, evidence of equal weight prevents a preponderance on the other side. See Klunk v. Railway, 74 0. S. 125. Barnes v. Auto Co., 22 C. D. 233, 13 C. C. (N.S.) 571, 5. Contra, Railway v. Rocs, 6 C. D. 33, 9 C. C. 201. 64. ERROR IN THE CHARGE. (a) A party is entitled to have the issues of fact in a case determined by a jury properly instructed as to the bur- den of proof. A misdirection of the jury in this respect is error for which the judgment will be reversed at the instance of the party prejudiced thereby. The error generally consists in requiring the preponderance of the party not having the burden of proof. McNutt V. Kaufman, 2G 0. S. 127. Leisv V. Zuellig, 7 C. C. 423. 6 C. T). 175. McDonald v. Miser, 15 C. D. 753, 2 C. C. (X.S.) 313, 20. (b) A judgment will be reversed where the charge im- properly places the burden of proof: especially "where the evidence is close and conflicting, and not so clear and conclu- sive as to enable the reviewing c»urt to say that prejudice did not result therefrom. Judge V. Benefit Assn.. 10 C. C. (N.S.) 473, 20 C. D. 133. Schnial^tig V. Taft, 20 O. C. A. 519. Vo THE SHIFTING BURDEN §65 (c) "Where the whole evidence adduced on the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the charge with a view to determine whether under all the circumstances substantial justice has been done ; and if it has, the judgment will not be reversed. Baird v. Telephone Co., 10 C. C. (XS.) 163, 20 C. D. 107. Railway Co. v. Hart, 6 C. D. 731, 10 C. C. 411. Minzey v. Marcy, 6 C. C. (N.S.) 593, 15 C. D. 593. But see McNutt v. Kaufman, 26 0. S. 127. 65. ILLUSTRATIONS OF SHIFTING. (a) In an action by the state for the recovery of canal lands, the state must first prove by competent evidence that the lands in question were formerly part of the canal system of the state; and then the burden shifts to the defendant to show that he has in some lawful manner acquired title from the state. State V. Cinti. Tin, etc. Co., 66 0. S. 182. (b) In an action on the bond of a justice of the peace for neglecting to issue an execution as required by law, the amount of the judgment is prima facie the measure of dam- ages, and the burden of showing facts in mitigation of damages rests on the defendant. Carpenter v. Warner, 38 0. S. 416. (c) Where a landowner and those from whom he derived title have used for more than twenty-one years without let or hindrance a right-of-way over and across adjoining lands to a public highway, and such use has been limited to a well- defined course, the burden of shoAving that such use was per- missive is cast upon the owner of the servient estate. TToltsherry v. Bounds, C. C. (N.S.) 510, 19 C. D. 257. See also Pavey v. Vance, 56 O. S. 162. (d) If it appears on the trial of one charged with rape that he is a boy under fourteen years of age. the presumption is that he is incapable of committing the act : and the burden is on the state to prove capacity to commit it. Hiltabiddle v. State, 35 0. S. 52. § 65 METZLER'S OHIO TRIAL EVIDENCE 76 (e) In an action against a telegraph company for damages resulting from an inaccuracy in the transmission of a mes- sage, when the inaccuracy is shown, the burden is upon the company to show that it was not due to its fault. W. U. Telegraph Co. v. Sullivan, 82 0. S. 14. Telegraph Co. v. Griswold, 37 0. S. 301. (f) When in an action for damages, the plaintiff admits the receipt of a sum of money, and acknowledges liis signature to a release which is delivered to the defendant, the defense of release has been prima facie established in favor of the de- fendant ; and the burden is npon the plaintiff to prove fraud in the execution of the release. In other Avords, if the execu- tion and delivery of a release are admitted, the burden of proving it void is upon the releasor. Perry v. O'Xeil & Co., 78 0. S. 200, 25. (g) In an action by a creditor for the purpose of subject- ing property in the hands of a donee to the payment of his claim, when it has been made to appear that tlie debt was contracted by the donor prior to the making of the gift, the burden cf showing the solvency of the debtor at the time of making the gift rests upon the defendant. Oliver V. Moore, 23 0. S. 473. Maclaren v. Stone, 9 C. D. 794, 18 C. C. 83!. (h) A transfer of property made by a debtor upon a secret trust is prima facie fraudulent as against creditors; and, as against them, the burden of proof is on the party claiming under it to show adequacy of consideration and good faith in the transaction. Ferguson v. Gilbert, 16 0. S. 8S. (i) Poll-books duly certified and returned are prima facie evidence of the truth of their f'ontents; but this may be re- butted by proof that they are fraudulent and fictitious to such an extent as to render them wholly unreliable. Where a poll-book is thus impeached, the burden of ntlierwise prov- ing legal votes is thrown upon the party claiming them. Phelps V. Schroder, 26 0. S. 549. 77 THE SHIFTING BURDEN ^; G-J (j) In an action by the grantor in a deed to reform the instrument npon the ground that the grantee fraudulently concealed and misstated the contents of tlie deed to the grantor, when it appears that relations of trust and confidence existed betAveen the parties, the grantee must show that no undue advantage was taken of the grajitoi- in tlie execution of the deed. If the grantee makes this proof, the grantor must prove fraud by clear and convincing evidence. McAdams v. McAdams, SO 0. S. 2.?'?. See Mechling v. Buettger, 20 X. P. (X.S.) 27S. 2S O. D. ITS. (k) When incapacity on the part of the grantor to exe- cute a deed is charged, and the conveyance is itself reasonable and proper, it m.akes a prima facie case-, and the burden is on the one assailing the transaction to show incapacity at the time the deed was executed. Boyer v. Boyer, 14 C. C. (N.R.) 30.5, 23 C. D. 279. (1) A promissory note is prima facie a promise to pay and not a payment; and if a party eontends that a note was given in payment, the burden is on liini to prove it. And where a document bears on its face sufficient evidence to raise a pre- sumption that it has been paid or that the claim is barred by the statute of limitation, the presumption must be rebutted in order to sustain a claim thereunder. Wright V. Hull, 83 0. S. 3S5. Price V. Coblitz, 21 C. C. 732. 12 C. D. 34. Waller Co. v. Gordon, 7 C. C. (N.S.) 303, 14 C. D. 407. (m) Every holder of commercial paper is deemed prima facie to be a holder in due course: but when it is shown that the title of any person who negotiated the instrument was defective, the burden is om the holder to jirove thnt he. or some person under whom he claims, acquired the title as a holder in due course. Section 8164, General Code. Thompson v. Bnrk, 13 C. C. (N.S.) 515, 22 C. D. mi. Bank V. Wickhni fi C. D. 790, IS C. C. fiS.->. Ragan v. Sherman. !7 C. C. (N.S.) 523, 24 C. 1). 214. (n) As the presumption is that the holder of negotiable pajier is the owner of it, so when payment is made to a person ^ 66 METZLER'S OHIO TRIAL EVIDENCC 78 not having possession of the securities properly indorsed, the burden of showing that such person was authorized to receive jiayment for the creditor rests upon the party who makes the claim of payment. Tloffmaster v. Black, 78 0. S. 1. Jjiit see Insurance Co. v. Jones. ;;.5 0. S. 3.51. (o) In an action against a common carrier, the plaintiff first proves the delivery of the goods to the carrier, and that they were not received by the plaintiff. This entitles the plaintiff to recover. The carrier must then prove that the loss arose from one of the exceptions provided for by the contract, and that the servants of the carrier w^ere in the due exercise of care. This proof made out prima facie would entitle the carrier to a verdict. The plaintiff' then nuiy prove any fact or omission of duty establishing negligence. If this fact be a specific one, upon which the witnesses of the carrier were not examined, it is the right of the defendant to rclmt such testimony. Dissenting opinion of Judge Swan in Graham v. Davis, 4 0. S. 362, 382. 66. THE EFFECT OF NEGATIVE ALLEGATIONS. (a) It is a general rule that a party must prove every disputed material fact that is essential to his own case. If the assertion of a negative is an essential part of his case, he must prove it. So where the ground of an action rests upon a nega- tive allegation, or where a statute contains negative matter which enters into a description of the offense, or where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, some evidence must be given to sustain the negative allegation, Cheadle v. State, 4 O. S. 477, 478. Moody V. State, 17 0. S. 110, 11. (b) The general rule is subject to an established excep- tion w^here the subject-matter of the negative averment lies peculiarly within the knowledge of the opponent, can be readily and easily proved by him, and can not, without great inconvenience, be proved by the party making the averment. The rule does not depend upon a mere balancing of difificul- 79 THE SHIFTING BURDEN § Gu ties; and it is never ajiplied unless the evidence is practically beyond the reach of the ])arty, and clearly within the power of his opponent. (This exception is a rule providing that a prima facie case may be made without proof of negative alle- gations under certain conditions.) The adjudged cases have, for the most part, confined this exception to civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons except those duly licensed therefor, and have applied it to the averment alleging the want of such qualification. The exception had its origin in prosecutions under the English game laws, but has since been extended to prosecutions for selling liquor, exercising trades without license, and«like cases. Cheadle v. St.^.te, 4 0. S. 477, 478, 480. See also Moody v. State, 17 0. S. 110. (c) Upon an indictment for voting at an election without being a citizen of the United States, it is sufficient for the prosecution to prove that the defendant is a foreigner by birth, and that he deposited a vote, without showing that he voted for any person or for any office. If he had become a naturalized citizen or the vote was blank, he must show it; for the state can not prove a negative. Patterson v. State, 2 W. L. M. 333, 2 0. D. R. 304. State V. McGinly, 2 W. L. :\r. 504. 2 0. D. R. 398. (d) In a recent criminal case, the exception is stated to the effect that where the subject-matter of a negative aver- ment in an indictment relates to the defendant jiersonally, oi- lies peculiarly within his knowledge, the averment will be taken as true, unless disproved by him. So in a prosecution for bigamy, the state is not bound to prove that the defend- ant and his first wife were not divorced, as the evidence is peculiarly within defendant's knowledge, and not within the possession of the state. State V. Sappienza, 84 0. S. 63. 71. Hanley v. State, 12 C. C. 584, 5 C. B. 488. 9. Cf. Evans v. Reynolds, 32 0. S. 103, 5. (e) In a proceeding in contempt against a party who had refused to comply with a money decree for alimony, whon it § G7 METZLER'S OHIO TRIAL EVIDENCE 80 was shown that the defendant had not obej^ed the order of court, it was said that a prima facie case had been made that he was in contempt ; that the burden was upon him to show that it was not in his power to obey the order; and that this was not an unreasonable requirement, for the defendant's financial condition and ability to pay were peculiarly within his own knowledge, and could not be known with the same certainty to the complainant. State V. Cook, 66 0. S. 566, 70. (f) On an indictment for procuring an abortion, it was held that, in order to convict, it was incumbent on the state to prove that the act was not necessary to preserve the life of the motlier, but not to prove the negative allegation as to the advice of physicians. Mondy V. Ptofp, 17 0. S. no. Bridge v. State, 20 C. C. (X.S.) 231. (g") On the trial of an information for selling spirituous liquors not inspected, the state is bound to give some evidence in support of the negative averment. P>iit in a prosecution for violation of a local-option ];iw mal'ing tlie sale of intoxi- cating liquors unlawful, it is not necessary that the complaint allege that the sale was not within the exceptions mentioned in the statute; nor is it necessary to prove it. Such matter is defense and must be established as such. Cheadle v. State. 4 0. S. 477. Carniaek v. State, 1.3 C. C. (X.S.) 362, 22 C. D. 55. Otte V. State, 19 C. I). 203, 9 C. C. (X.S.) 293, 306. 67. CLEAR EVIDENCE— GENERAL FRITxlCIPLES. (a) In its practical application, a presumption may be strong or very weak according to the circumstances of the particular case. This may also be said of prima facie cases. So that the amount of evidence reciiiicd to iel)ut a presump- tion or a prima facie case is not ai^^•a^'s the same. In fact, there is a great difference in them in tliis respect. The pre- sumption of ownership of a note arising from possession is not strong, but open to be blown away by the slightest breath of 81 THE SHIFTING BURDEN §67 suspicion ; while the presumption that a child begotten in lawful wedlock is legitimate, is a strong presumption requir- ing clear, certain and conclusive evidence to overcome it. Larimore v. Wells, 20 0. S. 13, S. Osborn v. McClelland, 43 0. S. 2S4, 30.5. Powell V. State, 84 0. S. 165. (b) The strong presumptions and prima facie cases ac- count for most of the rules requiring clear and convincing proof. The presumption involved is usually the one in favor of official action, such as the official certificate of acknowl- edgment of a deed or other instrument ; or it may be the pre- sumption raised, or rather the prima facie case made, by a writing apparently regular. The same degree of proof is also required to establish some transactions not favored by law ; the reason, no doubt, is that inasmuch as they are not favored, there is a kind of presumption against them. In all such cases, it seems that the presumption is so great, or the prima facie case so strong, that clear and convincing evidence is required to meet or overcome it. If this theory is correct, this rule is only the duty of rebutting appliof. Mitrhell V. ■Rynn. ?, 0. f5. ^77. WiHis V. Bnkt-r. 7.1 O. S. 2!)1. See also Mr-Adams v. ^fcAdanis. SO (). S. 2:!2. (e) Before restrictive covenants can be enforced against a purchaser whose deed does not contain such restrictions, it must clearl}' appear by the evidence, that there was such a general plan of uniform restrictions upon all the lots in the allotment ; that the deeds for lots in such allotment nniformly contained such restrictions; and that the purchaser had knowl- edge of such general plan of uniform restrictions at the time he ])urchased his lot. Adams v. Donovan, 07 O. S. 83. 69. CLEAR EVIDENCE TO ESTABLISH A TRUST. (a) When it is sought to establish an express trust in the case of a conveyance by deed absolute on its face, it is re- quisite that the evidence should be clear, certain, and con- clusive in ])ro()f. iiol oiil\' of tlic existence of the ti'ust at the time of the conveyance, but also of its terms and conditions. §70 METZLER'S OHIO TRIAL EVIDENCE 84 The conveyance being absolute on its face, carries with it prima facie the power of sale and conveyance. Miller v. Stokely, 5 0. S. 194. Stall V. Cincinnati, 16 0. S. 169. Boughman v. Bouglunan, 69 0. S. 273. Russell V. Bluer, 64 0. S. 1. Richards v. Parsons, 7 O. App. 422, 29 O. C. A. 359, 31 C. D. 195. (b) A deed absolute in its terms, and in consideration of natural love and affection, is repugnant to the existence of a trust; and if, in opposition to the terms of such a deed, an express trust coupled with an interest could be set up and proved by circumstantial evidence, predicated on a supposed concealment or fraud after the lapse of thirty years, it is essential that the evidence be so certain and conclusive as to exclude every rational hypothesis to the contrary, with the certainty of a positive written declaration of the trust. Miller v. Stokely, 5 0. S. 194. See LeBaron v. Skeels, 24 C. C. (X.S.) 505. 70. CLEAR EVIDENCE TO REFORM AN INSTRUMENT. (a) When the reformation of a written instrument is sought on the ground of mistake, the presumption is so strongly in favor of the instrument that the alleged mistake must be clearly made out by proofs entirely satisfactory; and nothing short of a clear and convincing state of fact showing the mistake, will warrant the court to interfere with and reform the instrument. Potter V. Potter. 27 0. S. 84. .5. Stewart v. Gordon. 60 0. S. 170. Snvder v. Bank. 22 C. C. 624, 12 C. D. 623. Gibbons V. Day Co., 25 C. C. (N.S.) 559, 28 C. D. 359. Anderson v. Fugman, 22 C. C. (N.S.) 283. Boynton v. Strauss, 18 C. C. (N.S.) 229. (b) If an insurance policy written by one who is an agent, within the meaning of Section 9586 of the General Code, is delivered and accepted, which by mutual mistake of the parties insufficiently describes the place in which the property is located, the court will, when the mistake is shown by clear 85 THE SHIFTING BURDEN §71 and convincing proof, reform the policy so as to state the contract actually made. Insurance Co. v. Tool Co.. 06 0. S. 442. (c) The presumption being that a contract as reduced to writing embodies the real intention of tiie parties, courts ought not to proceed on the ground of mistake without very clear and satisfactory proof of its existence. And when a sealed contract made seventeen years before has been in liti- gation for several years without a suggestion of incorrectness, the proof must be clear almost to demonstration. Davenport v. Sovil, 6 0. S. 459. Clayton v. Freet, 10 O. S. 544. Whitney v. Denton, 3 Bull. 870, 7 0. D. R. 547. 71. CLEAR EVIDENCE TO VARY COMMERCIAL PAPER. (a) A defense by an indorser that the note was paid, and that his indorsement was made at plaintiff's 'request as a memorandum and not for the purpose of passing title, re- quires clear and convincing proof. dinger v. McCxuffey, 55 0. S. 661. See also Morris v. Faurot, 21 0. S. 13.3. Snyder v. Bank, 22 C. C. 024, 12 C. D. 023. (b) When usury is pleaded as a defense to a written in- strument in contradiction to its terms, the burden is on the party asserting the defense to support it by clear and satis- factory evidence. But in an action upon a promissory note, where the usurious payments of interest are set up and asked to be applied as credits upon the principal, such defense may be established by a preponderance of the evidence. Boone v. .'Andrews. 10 C. C. (X.S.) 377, 20 C. D. 166. Clutch V. Ebright, 5 O. App. 440, 27 O. C. A. 251. (c) Where a decedent at the time of his death holds a note signed by his son or daughter, evidence must be clear and convincing in order to establish that the money for which the note was given, is a gift by way of advancement. Medill V. Fitzgerald. S C. D. 120, 15 C. C. 415. Bullock V. Bullock, 15 0. D. 7S.3, 3 X. P. (N.S.) 190, 2. § 73 METZLER'S OHIO TRIAL EVIDENCE 86 72. CLEAR EVIDENCE TO AFFECT OFFICIAL ACTION. (a) The power of a court of record to enter nunc pro tune the evidence of judicial action previously taken, should be exercised only upon evidence which shows clearly and con- vincingly that such former action was, in fact, taken. Jacks V. Adamson, 56 0. S. 397. (b) Where the record or deed of adoption of a child states that it was duly and legally done, in order to invalidate the adoption, it must be affirmatively shown by clear proof that the adoption was irregular in some essential particular. Simpson V. Simpson. C. C. (X.S.) 137, 19 C. D. 503. (c) In an action to set aside a judgment on the ground that the defendant was not served with summons, the want of service must be clearly shown. And where the evidence to contradict the return of residence service is not clear and con- vincing, it is- error to set aside the judgment for want of service. Koefe V. Evenden, Ifi C. C. (N.S.) 516, 25 C. D. 68. Mayer v. Groves, 18 C. C. (N.S.) 38. (d) In order to establish a mistake of a city council in the proceedings preliminary to the making of an improvement, or to show an abuse of discretion in deciding who is the low- est responsible bidder, the ])roof must be clear and satis- factory, and evidence of misconduct and unfaithfulness in office, to warrant the removal of a notary public, should be clear and satisfactory. Acklin V. Tarkor, 10 C. C. (N.S.) 243, 19 C. D. 625. Hubbard v. Sandusky. C. D. 786. 9 C. C. 638. Cf. Ice Co. V. Cinti., 6 0. App. 109, 28 O. C. A. 511, 30 C. D. 296. In re Hayman, 20 C. C. 667, 10 C. D. 815. 73. CLEAR EVIDENCE TO ESTABLISH LOST INSTRU- MENTS. (a) Where parol evidence is relied on to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the sup- posed deed, and so much of its contents as will enable the court to determine the character of the instrument. Gillmore v. Fitzgerald, 26 0. S. 171. Smith V. Xeff, 5 N. P. 495, 5 0. D. 449. 87 THE SHIFTING BURDEN §75 (b) Where a will has been lost or destroj'ed before the death of the testator, the law presumes that he revoked it ; and in order to overcome this presumption and establish such a will, the evidence of its execution and of its contents must be clear, stronof, positive, free from bias, and convincing be- yond a reasonable doubt. Cole V. McClure, 88 0. S. 1. Brewing Co. v. Hard way, 2 0. A pp. 171, 17 C. C. (N.S.) 475, 26 C. D. 443. See In re Will of Thompson, 16 N. P. (X.S.) 121, 74. CLEAR EVIDENCE IN MISCELLANEOUS CASES. (a) And in order to establish the relation of insurer and insured in parol as existing before the delivery of the policy, the plaintifP must do so by full and clear proof, as the con- tract is prima facie incomplete. Insurance Co. v. Whitman, 75 0. S. 312. See also Suydam v. Ins. Co., 18 Oh. 459. (b) To enforce performance of a contract to sell real estate signed by an agent, it must be shown that he was authorized to make the identical contract sued on. And if the agent's authority rests in parol, the proof must be clear and convincing not only of such parol authority, but also that it was such as to permit the inclusion of all the material terms of the contract. Spengler v. Sonnenberg, 88 0. S. 192. (c) One who. having a right, induces another to act on the belief that the right will not be asserted, Avill not after- wards be allowed to exercise it; nevertheless, the burden is upon the party who relies upon the estoppel, to prove clearly and unequivocally every fact essential to the estoppel. Kroll V. Close, 82 0. S. 190, 194. 75. CLEAR EVIDENCE IN TRANSACTIONS NOT FAVORED, (a) Gifts causa mortis have the nature of a legacy; and the policy of our law does not favor them while there is pro- vision by the statute of wills and the law of descents for the transmission of all property rights. 0\ir statutes should not §75 METZLER'S OHIO TRIAL EVIDENCE 88 be defeated by such gifts, unless in a very clear case. To establish a gift causa mortis, the common law requires clear and unmistakable proof, not only of an intention to give, but also of an actual gift perfected by as complete a delivery as the nature of the property will admit of. Gano V. Fisk, 43 0. S. 462, 73. (b) Gifts inter vivos, like gifts causa mortis, are watched with caution by the courts. And to support them, clear and convincing evidence is required in order that the rights of creditors may not be prejudiced, that the donor may not be circumvented by fraud, that he may be protected from undue influence, and that efficacy may not be given to donations made under legal incapacity. While the evidence must be clear and convincing, there is no rule requiring it to be direct and positive. Flanders v. Blandy, 45 0. S. lOS. 113. Miller v. McLean, 11 C. C. (N.S.) 489, 21 C. D. 64. (c) In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obliga- tion to pay for the services will be implied. The contract may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence. But to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof; as to all other issues in the. case, the rule of preponderance applies. Hinkle v. Sage, 07 0. S. 250. Bolsinger v. Halliday, 4 0. App. 311, 22 C. C. (N.S.) 289. (d) Cases of this kind are odious and are not favored by the courts, because they are a great temptation to perjury, and afford opportunity for fraud against the estates of de- ceased persons by disappointed or avaricious relatives. Hinkle V. Sage, 67 0. S. 256, 62. (e) When the circumstances of the case raise suspicions in regard to the alleged contract, it requires clear and con- vincing evidence of an express contract. But when there are 89 THE SHIFTING BURDEN § 75 no such circumstances, and justice requires the finding of an implied contract, the courts are apt to so find. Estate of Ward, 21 C. C. 75.3, 12 C. D. 44. Estate of Ski-lton, 20 C. C. 704, 11 C. D. 372. See Waybright v. BonncU. 20 N. P. (X.S.) 47.1, 28 O. D. 270. (f) Where the circumstances do not show some reason for the making of a gift or performing service for a relative without charge, such an intention will not be inferred simply from the relationship. And where there is no blood relation- ship between the parties, payment may be enforced by a pre- ponderance of the evidence. Thompson v. .Tones. 13 C. C. (X.S.) 403, 23 C. D. 182. Rudy V. Rudy, 14 C. C. (N.S.) 545, 23 C. D. 35!). See also Scattergood v. Ingram, SO 0. S. 76. (g) And where the party Avho is alleged to have made an express contract is a living person, is the defendant in the case and is competent to testify, it is sufficient, in order to entitle the plaintiff to recover, that the contract, whether in writing or in j)arol, be established by the preponderance of the evidence. Merrick v. Ditzlcr, 91 0. S. 256. (h) The statute provides that in order to constitute a defense, it must be clearly proved" that the answers to inter- rogatories in an application for insurance were wilfully false. Although the statute provides that it must be clearly proved, it is not error to use words with substantially the same meaning. Insurance Co. v. Howie, 62 0. S. 204, 10. Insurance Co. v. Sickles, 2 C. C. (N.S.) 222, 13 C. D. 594. CHAPTER VI. THE DEGREE OF PROOF. 76. Beyond a reasonable doubt. 77. The charge in criminal cases. 78. Defense of "not art of the offense and must be proved beyond a reasonable doubt. Jones V. State, .51 0. S. 331. Coles V. State, 13 C. T>. 313, 3 C. C. (X.S.) 420. (f) "Where evidence of other offenses of a similar character is competent to prove intent, and the aecu.sed has not theretofore been convicted of such offenses, the burden is upon the state to prove that the accused is guilty of such other offenses by the same degree of proof as is required in all criminal cases. Baxter v. State, 91 0. S. 167. (g) The amendment to the Constitution of 1012, relating to the failure of a defendant in a criminal prosecution to take the stand and testify, in no way lessens the proof required before a conviction can be had, nor does it change the well- §77 METZLER'S OHIO TRIAL EVIDENCE 92 settled rule of procedure that before a defendant can be called upon to produce his defense the state must prove every essential element of the crime charged. Tarker v. Dover, 18 N. P. (N.S.) 465. (h) Before a court can find a person guilty of contempt, the charge must be proved beyond a reasonable doubt. Con- tempt proceedings are quasi-criminal in their nature, and all the presumptions are in favor of the innocence of ihe persons charged. Hunt V. State, 5 C. C. (X.S.) 621, 17 C. D. IG. Moulders' Union v." C.reenwakl, 16 0. D. 678, 4 X. P. (X.S.) 161, 82. See Loney v. Hall, 8 0. App. 154, 28 O. C. A. 14, 29 C. D. 453. (i) In order to warrant a conviction under an indictm.ent for perjury, there should be at least one witness to the corpus delicti, or the falsity of the matter assigned as perjury, and that the testimony of such witness be coj^roborated either by another witness or by circumstantial evidencij sufficiently strong to satisfy the jury beyond a rccisonable doubt of the guilt of the accused. State V. Courtright, 66 0. S. 35. (j) The corroborative evidence need not be of sufficient force to equal the positive testimony of another witness, or such as would require a jury to convict iu a case in which a single witness is sufficient ; but it must be such as gives a clear preponderance to the evidence in favor of the state, and establishes the falsity of the oath beyond a reasonable doubt. Crusen v. State, 10 0. S. 258. 77. THE CHARGE IN CRIMINAL CASES. (a) One on trial for a crime is not denied the benefit of a reasonable doubt by the instruction to the jury that there should be a verdict of guilty, if a full and candid considera- tion of the evidence produces a conviction of guilt, and satis- fies the mind to a reasonable certainty; but that there should be an acquital if the evidence establishes only strong prob- abilities of guilt. State V. Allen, 68 0. S. 516. See also Clark v. State, 12 Oh. 483, 05. Campanario v. State, 17 C. C. (N.S.) 388. 93 THE DEGREE OF PROOF § ^J (b) In defining reasonable doubt, it is not error to charge the jury that if they Avould act upon such evidence in the most important affairs of their lives, then it is safe to say tliat they have been convinced beyond a reasonable doubt. Geer v. State, 16 C. C. (X.S.) lol. (c) "Where reliance for conviction is placed on circumstan- tial evidence, the jury should be instructed that the facts and circumstances upon whirh the theory of guilt is based should be shown beyond a reasonable doubt, and when taken to- gether must be so convincing as to be irreconcilable with the claim of innocence and admit of no other hypothesis than the guilt of the accused. Carter v. State, 4 0. App. 103. 22 C. C. (X.S.) 154. Fastbinder v. State, 42 0. S. 341, 5. Moore v. State, 2 0. S. 500, 7. (d) The proper charge to a jury in a criminal case is that the jury and not that each juror should be convinced beyond a reasonable doubt of the guilt of the accused before finding him guilty. To charge the jury that each juror must be con- vinced would seem to invite an acquittal or at least a dis- agreement, and woidd therefore be misleading. Tf the ac- cused is in doubt as to whether the verdict is that of each juror, his remedy is to have the jury polled. Davis V. State, 63 0. S. 173, 4. Cf. McGuire v. State, 3 C. C. 551, 2 C. D. 318. Geer v. State, 16 C. C. (X.S.) 151. (e) An instruction to a jury that a reasonable doubt is a r ^"bt that you as jurors can give a reason for, is inaccurate j^iid misleading; and the fault is not cured by prefacing the statement Avith the instruction that by a reasonable doubt is meant not a cajitious or whimsical doubt. Morgan v. State, 49 0. S. 371. Cf. Cromley v. State, 19 C. C. (X.S.) 526, ■>() C. 1). 200. (f) A charge to the jnry in a crimiiuil case is erroneous which directly or inferentially assumes that doubts as to the guilt of the defendant are prima facie unreasonable, and by which the jurors are cautioned and directed not to respect §78 METZLER'S OHIO TRIAL EVIDENCE 94 such doubts until an ineffectual effort has been made by them to divest their minds of the same. Rose V. State, 7 C. D. 226, 13 C. C. 342. 78. DEFENSE OF "NOT GUILTY." (a) The general rule placing the burden of proof upon the prosecution is clearly applicable in every case where the defendant by pleading "not guilty" alone, and without quali- fication, stands upon a negative allegation, and does not rely upon any facts which are separate and distinct from, or in- dependent of, the original transaction set forth in the indict- ment. By such a plea, the prisoner restricts himself to deny- ing and disproving the facts involved in the original transac- tion, including, of course, all the accompanying circumstances. Stick V. State, 3 C. C. (N.S.) 611, 13 C. D. 392, 5. (b) In a prosecution for murder where the defendant denied that he entertained a purpose to kill anyone, or that he even intended to fire the gun, and gave evidence tending to prove that the homicide was accidental, it was said that this was not an affirmative defense analogous to a plea of confes- sion and avoidance; that the effect of such evidence was simply to controvert an inference of an intent to kill, which may have arisen from the evidence introduced by the state. Jones V. State, 51 0. S. 331, 41. (c) "Where an accused person denies that he committed the crime charged, and claims that by reason of drunkenness he was physically incapable of committing such an offense, and offers testimony to that effect, it is error to charge the jury that the burden is upon the accused to show such want of capacity to commit the crime, inasmuch as such a charge imposes upon him the burden of proving that he did not com- mit the crime, which is contrary to fundamental principles of law. Jeffers v. State, 10 C. D. 832, 20 C. C. 294. (d) In a prosecution for the forgery of a promissory note, when the defendant admits the making of the signature, the burden is not on him to prove that he had authority. In 95 THE DEGREE OF PROOF § 79 such case, the burden remains on the state to prove that the making of the signature Avas without authority, before a con- viction can be had. This is not an independent affirmative defense; it simply controverts the truth of a material aver- ment of the indictment. Romans v. State, 51 0. S. 528, 30. (e) In a prosecution for the violation of the local option law, it is error to charge the jury that the record of the town- ship trustees makes a prima facie case that the sale is pro- hibited, and that it then devolves upon the defendant to show by a preponderance of the evidence that the election was illegal. The burden is upon the state to show beyond a rea- sonable doubt that the election was held in conformity to the statute. Stick V. State, 13 C. D. 392, 3 C. C. (N.S.) 611. (f) If it appear on the trial of one charged with rape that he is a boy under fourteen years of age, the burden is on the state to prove capacity to commit the crime; and if the court enumerate certain facts which are of no determin- ate value, and say to the jury that if they are proved, the burden is on the accused to show want of capacity, it is error. Hiltabiddle v. State, 35 0. S. 52. See Williams v. State, 14 Oh. 222. (g) But where the statute provides that the keeping of intoxicating liquors in dry territory in any place except a drug-store or private residence, shall be prima facie evidence that such liquors are kept for unlawful sale, furnishing or giving away, a conviction wall be sustained upon evidence of this fact alone. The court said that the burden of proof M-as changed by the statute; but it seems that there was only a prima facie case for the defendant to answer. Xiekels V. State, 22 C. C. (X.S.) 236. 79. DEFENSE OF ALIBI. (a) Where the evidence tends to prove the commission by the defendant of the crime charged in the indictment at a particular time and place, and the defendant offers evidence § 80 METZLER'S OHIO TRIAL EVIDENCE 96 tending to show that at such time he was at another place, it is error for the court to charge the jury that testimony tend- ing to show such alibi is not to be considered, unless it estab- lishes the fact by a preponderance of evidence ; for an alibi need not be proved by a preponderance of evidence. Walters v. State, 30 0. S. 215. Burns v. State, 75 0. S. 407. (b) The burden of proof is not changed when the defend- ant undertakes to prove an alibi. If by reason of the evi- dence in relation to such alibi, the jury should entertain reasonable doubt as to the defendant's guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proved. Walters v. State, 39 0. S. 215. Burns v. State, 75 0. S. 407. (c) A defense of an alibi is as proper and legitimate, if proved, as any other; and the evidence bearing upon it should be carefully considered. The jury must consider all the evi- dence in the case, including that relating to the alibi, and determine from the whole evidence whether it was shown beyond reasonable doubt that the defendant had committed the crime with which he was charged. Burns v. State, 75 0. S. 407. Walters v. State, 39 0. S. 215, 7. (d) In such a case, it is error for the court to charge the jury that an alibi is a defense set up by the defendant, which can only be satisfactorily maintained by proof which renders it impossible that he could have committed the act. Gawn V. State, 7 C. D. 19. 13 C. C. IIR. 80. INDEPENDENT DEFENSES. (a) The principle that the burden of proof is on the state in criminal cases has reference to the establishment of the corpus delicti, and the defendant's complicity. When the de- fendant relies upon distinct substantive matter for exemption or immunity, the burden of proving such matter is on the defendant. State V. Sappienza, 84 0. S. 63, 70. 97 THE DEGREE OF PROOF § 81 (b) The accused must prove the independent exculpatory- facts upon which he relies. When a party claims to control the legal effect of facts by the alleged existence of other facts, the burden is on him to show a preponderance of evidence in favor of the existence of the latter. In such cases, the com- mission of the act is admitted and then justified or excused by necessity or irresponsibility. Such defenses are in the nature of confession and avoidance. Sihnis V. Stato, 22 0. S. 90, 101. ' Stick V. State, 3 C. C. (X.S.) 611, 13 C. D. 302, 5. Effinger v. State, 9 C. C. 376, 6 C. D. 417. (c) Where, in the trial of an indictment for robbery, it is proved beyond a reasonable doubt that the defendant was present at the time and place of the crime and participated in the acts which constituted the robbery, and the defense inter- poses a plea of duress, the burden is not on the state to dis- prove such plea ; but is on the defendant to maintain his plea by a preponderance of the evidence. State V. Sajpienza, 84 0. S. 63. 81. DEFENSE OF INSANITY. (a) The burden of proof to establish the defense of in- sanity in a criminal case rests upon the defendant ; but a bare preponderance of the evidence is sufficient. It is not neces- sary to establish the defense beyond a reasonable doubt. Bond V. State, 23 0. S. 349. State V. Austin, 71 0. S. 317. LoefTner v. State, 10 0. S. 508. Sharkey v. State, 2 C. D. 443, 4 C. C. 101. (b) In a trial for niurd(M\ wliere tlie accused sets up his insanity as a defense, the rule is the same. He is bound to establish it by a preponderance of the evidence ; and he should be held to no higher degree of proof. Kcloh V. State, 55 0. S. 146. Bergin v. State, 31 0. S. 111. State V. Austin, 71 0. S. 317. (c) The proof should be deemed to preponderate in favor of this, as of any other disputed fact, whenever its existence metzlek'.s tki.\i. ev. § 81 METZLER'S OHIO TRIAL EVIDENCE 98 is made probable upon a full and fair consideration of all the evidence adduced for and against it. Kelch V. State, 55 0. S. 14G. Sliarkey v. State, 2 C. D. 443, 4 C. C. 101. Contra, Clark v. State, 12 Oh. 4S3, 95. (d) It is error to instruct the jury that the evidence in- troduced to establish insanity is not sufficient if it merely shows it to have been probable; that the proof must be such as to overcome the legal presumption of sanity ; and that it must satisfy you that he is insane. This charge requires of the defendant more than a preponderance of the evidence to maintain this defense. And a charge cautioning the jury not to suffer an ingenious counterfeit to protect guilt is mislead- ing and prejudicial, if there is no evidence of simulation. Kelch V. State, 55 0. S. 146. Contra, Clark v. State, 12 Oh. 4S3, 95. Sharkey v. State, 2 C. D. 443, 4 C. C. 101. (e) Proof of prior insanity of the accused does not shift the burden of proof, but all along it rests with the defendant ; and he must show by a prei)onderance of the evidence that, at the time of the commission of the offense, he was then so far mentally deranged as not to be accountable for his act. State V. Austin, 71 0. S. 317. Wheeler v. State, 34 O. S. 394, 6. Contra, Clark v. State, 12 Oh. 483, 95. (f) In the trial of an indictment for murder, the defense of insanity under the plea of not guilty does not change the nature of the issue so as to give the afifirmative to the defend- ant, and entitle him to the opening and closing argument to the jury. Loeffner v. State, 10 0. S. 598. (g) In a proceeding under Sections 1360S-9 of the General Code (Section 7240 R.S.), to ascertain whether a person under indictment for a crime, is or is not sane at the time of trial, the accused has the affirmative ; and the burden is upon him to show by a preponderance of the evidence that he is not 99 THE DEGREE OF PROOF § 83 sane. But on application for the appointment of a (). App. 292, 2li C. C. (X.S.) 456, 27 C. D. 559. Fagan v. Welsh, 19 C. C. (N.S.) 177, ISO. Cf. Thayer, Prelim. Treat., p. 339. 105 THE DEGREE OF PROOF § 86 (i) And where the testimony introduced does not tend to prove the issue on the part of the i)laintiffs showing incapac- ity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiff's testimony, to direct the jury to find a verdict sus- taining the will. Wagner v. Ziegler, 44 0. ?. 59. Edwards v. Davis, 30 Bull. 283, 11 0. D. R. 876. Cf. Beresford v. Stanley, 9 0. D. 134, 6 X. P. 38. Hall V. Hall, 15 0. D. 167, 2 O. L. R. 328. 86. IN NEGLIGENCE CASES. (a) A party performing a lawful act is not responsible for injury arising therefrom, unless it is occasioned by his own negligence, carelessness, or wantonness. The burden of proof is upon the party claiming that the injury was done, to show that it was occasioned by negligence, carelessness, or wantonness ; and he must prove the reality and nature of the injur Titus V. Lewis, 33 0. S. 304. Railway v. Powell. 22 C. C. (X.S.) 2S0. (b) There is no presumption of negligence as against either party, except such as arises upon the facts proved. In- deed, the presumption is that neither party was guilty of negligence, and such presumption must prevail until overcome by proof. Each party starts in the trial with the presumption that he is free from negligence; and each, therefore, primarily assumes the burden of proving the negligence of the other. ■Railroad v. Crawford. 24 0. S. 631, 6. Schwcinfurth v. Railway Co., 60 0. S. 215, 23. Toledo Ry. v. Rippon, 8 C. C. (X.S.) 3.34, IS C. D. 561. Cf. Stevens Co. v. Blum, 17 C. C. (N.S.) 115. (c) However, when the doctrine of res ipsa loquitur ap- plies, the negligent act makes a j)rima facie case of negligence against the defendant; and in such cases tlie burden is on him to rebut the prima facie case made against him. Cinti. Trac. Co. v. Tlolzenknmp. 74 0. S. 370. Citizens Ry. v. Bell, 5 C. C. (X.S.) .321, 16 C. 1). 601. Barnes v. Auto Co., 13 C. C. (X.S.) 571, 22 C. D. 233. § 86 METZLER'S OHIO TRIAL EVIDENCE 106 (d) It is the general rule that the burden of proof is upon the defendant to make out the affirmative defense of contributory negligence ; and it is error to require the plain- tiff to prove its absence. This rule applies in actions for wrongful death as well as other negligence cases. Railway v. Hart, 6 C. D. 731, 10 C. C. 411. Jackson Co. v. Hathaway, 7 C. C. (N.S.) 242, 17 C. D. 745. Brinkman v. Lumber Co., 16 C. C. (N.S.) 537. (e) However, when the circumstances require of plaintiff the exercise of due care to avoid the injury, and his own testi- mony in support of his cause of action raises a presumption of contributory negligence, the burden rests upon the plaintiff to remove that presumption. But when, in such case, the plain- tiff's testimony does not disclose any want of due care on his part, the burden is on the defendant to show such contribu- tory negligence as will defeat a recovery. Eailroad v. Whitacre, 35 0. S. 627. Railway v. Levy, 8 C. C. (N.S.) 353, 18 C. D. 23. Railway v. Whidden, 13 C. D. S5, 2 C. C. (X.S.) 544. Cincinnati v. Frazer, 9 C. D. 487, 18 C. C. 50. Railway v. Cornwall, 14 C. C. (iST.S.) 209, 24 C. D. 124. Railway v. Zepperlcin, 1 C. C. 36, 1 C. D. 22. (f) When the case is such as requires due care on the part of the plaintiff, it is the duty of the court to determine whether there was any evidence raising the presumption of contributory ne/gligence ; and if his evidence raises such a presumption, it is the duty of the court to instruct the jury that the burden rests upon the plaintiff to remove such pre- sumption and show that he was exercising ordinary care be- fore he can recover. Railway Co. v. Ackworth, 6 C. D. 622, 10 C. C. 5S3. Railway Co. v. Whidden, 13 C. D. So, 2 C. C. (X.S.) 544. Cincinnati v. Frazer, 9 C. D. 487, IS C. C. 50. (g") A charge of the court in a negligence case so given to the jury that they may reasonably regard it as confining them, upon the question of contributory negligence, to the evidence given only on the part of the defendant, is mislead- ing and erroneous. Robinson v. Gary, 28 0. S. 241. 107 THE DEGREE OF PROOF § 86 (h) In a ease where the pleadings and evidence require a determination as to whether the plaintiff himself exercised due care, a charge of court is erroneous which directs the jury to find for the plaintiff in the event his evidence out- weighs that of the defendant, if they are not at the same time told that before weighing the evidence for the plaintiff they should separate out, without regard to its source, such evidence as tends to prove the essential facts of plaintiff's case from that which tends otherwise. Traction Co. v. Ruthman, 22 C. D. 353, 13 C. C. (N.S.) 161. (i) The action of negligence may be maintained if, upon the whole evidence, the negligence of the defendant is estab- lished by a preponderance of evidence, and contributory negli- gence of the plaintiff is not shown by the same weight of evidence. Schweinfurth v. Railway, 60 0. S. 215. Toledo Ry. v. Rippon, 8 C. C. (N.S.) 3.34, 18 C. D. 561. Peat V. Norwalk, 5 C. C. (N.S.) 614, 16 C. D. 161. See Traction Co. v. Murhpy, 6 0. App. I, 28 O. C. A. 316, 30 C. D. 82. (j) It is not error to charge as to the burden of proof of contributory negligence when made an issue by the pleadings, even though the evidence tends to prove that the injury was due AvhoUy to plaintiff's negligence. And where such issue is not raised by the pleadings, but is raised by the evidence, the burden of proof is determined by the same rules as if raised by the pleadings. Eiipineoring Co. v. Colochia, 18 C. C. (XS.) 316. Coal Co. V. McFadden, 00 0. S. 183. (k) In a negligence case, it is error to charge the jury that the plaintiff may recover Avhen he shows by a preponder- ance of the evidence that the defendant's negligence was the probable cause of the injury. The probabilities arising upon the evidence might warrant the jury in finding that the alleged negligence caused the injury: bnt to find that it probably caused the injury would not be sufTicient. Castings Co. v. Lnscomb, 6 C. D. 313. 10 C. C. 673. § 88 METZLER'S OHIO TRIAL EVIDENCE 108 87. IN ATTACHMENT. (a) The ground for an attachment stated in the affidavit, if denied by the defendant, must be sustained by the plaintiff to the satisfaction of the court. By the denial, the burden of proof is thrown upon the plaintiff. Coston V. Paige, 9 0. S. 397. Seville v. Wagner, 46 0. S. 52. Bradley v. Wacker, 7 C. D. 565, 13 C. C. 530. Cartmell v. Wurlitzer, 18 0. D. 387, 5 N. P. (N.S.) 604. (b) Where, in an action in attachment, an affidavit by the defendant in support of a motion to discharge denies the truth of the allegation contained in the affidavit upon which the attachment was issued, the burden is upon the plaintiff to show by a preponderance of the evidence that his allegation in that behalf is true. Young V. Clark, 13 C. C. (N.S.) 284, 22 C. D. 374. Willinger v. Bramsc-he, 3 C. 1). 731, 7 C. C. 208. But see Lyon v. Pbares, 4 0. L. Pv. 600, 17 0. D. 792. (c) "Where the averment in an affidavit for attachment before a justice of the peace that the property about to be attached is not exempt from execution is traversed by the affidavit of defendant, and it is shown circumstantially by such affidavit that the property is exempt, the burden is on the plaintiff to maintain the truth of the statement by other evidence; and where no such additional evidence is offered, the attachment should be discharged. But the burden of showing that a particular piece of property, a part of the property attached, .should be discharged, is upon the party applying. Kirk V. Stevenson, 59 0. S. 556. Bank v. Nash, 1 Handy 153, 12 0. D. P. 75. 88. IN INJUNCTION. (a) The burden of establishing a right to a perpetual in- junction claimed by a party to an action is upon .such party. A court will grant a perpetual injunction only when a party shows a clear right thereto. Spangler v. Cleveland, 43 0. S. 526. 109 THE DEGREE OF PROOF § 89 (b) "Where the essential statements of the petition on Mhich a temporary injuHction ^vas obtained, are denied by the answer, and a motion" is made to dissolve the injunction, the burden of proof to maintain such injunction is on the plaintiff. Railway v. Hamilton, 3 C. C. 4.)5. 2 C. D. 250. (c) But on a motion to dissolve a preliminary injunction on the ground that the allegations of the petition are untrue. the burden is on the defendant to j)rove thai iacr ; but such full and positive proof is not requisite as would be necessary upon a final hearing of the case. Kuhn V. Spice Co., 8 X. P. 686, 10 0. D. 292. (d) Where a party seeks to enjoin the collection of an assessment by a city council on the ground that the improve- ment was not recommended by the board of city improve- ments, he must show such fact by averment and proof. Bolton V. Cleveland, 35 0. ?. 310. Cincinnati v. Polster, 96 O. S. 155. (e) In an action to enjoin an assessment levied by a city council on the ground that the procedure was irregular, or that the assessments are excessive, or that a statutory require- ment has been omitted, the plaintiff has the burden of estab- lishing such fact by a preponderance of evidence. It is not incumbent upon the city to show affirmatively the regularity of the proceeding, nor the fairness of the assessments. Westenhaver v. novtville, 8 C. C. (X.^.) 284, 18 C. D. 357. Prentice v. T<.lodu, 11 C. C. (X.S.) 2!)9, 20 C. D. 568. Close V. Parker, 11 C. C. (X.S.) 85. 20 C. D. 384. Raymond v. Trustees, 7 O. App. 56, 28 O. C. A. 129, 29 C. D. 242. 89. IN SPECIAL PROCEEDINGS. (a) Tt is the general rule that on applications in special proceedings, the burden of proof is on the one ai)plying. So on application for bail by one charged with murder in the first degree, the burden is on the applicant to show that the proof against him is not evident, nor the presumption of guilt strong. State V. Woolard, 12 X. P. (X.S.) 395, 22 O. D. 652. § 89 METZLERS OHIO TRIAL EVIDENCE 110 (b) In a i)roceeding to recover property of a decedent, the burden of proof is upon the applicant to make proof by a preponderance of the evidence. So also, a signer that asks to have his name stricken from a petition to prohibit the sale of intoxicating liquors in a residence district, on the ground of fraud or misrepresentation, must establish such fact by a preponderance of evidence. Leonard v. State, ex rel., 3 O. App. 31.3, 20 C. C. (X.S.) 340. In re Jones Law Petition, 12 X. P. (X..S.) 44'.). (c) In a ditch proceeding, the burden of proof is on the petitioners to show that the proposed ditch will be conducive to the public health, convenience, and welfare. And upon an appeal from the decision of the county commissioners to the probate court by the owners of property to be taken for the ditch, the burden continues to be on the petitioners. The fact that one party is made plaintiff and another defendant in a case by virtue of the statute has nothing to do with the ques- tion of burden of proof; in other words, the burden of proof is not governed by the style of the case. Commissioners v. Whisler, 82 0. S. 234. 6. Sever v. Commissioners, 21 0. D. 670, 13 N. P. (N.S.) 585, 592. Emig V. Com'rs., 1 X. P. 320, 3 0. D. 302. (d) In a proceeding by mandamus to compel an officer to do an act which, it is claimed, the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must be shown. But when the defendant justifies, the burden is on him to show justification ; and he is entitled to the open and close. Cinti. College v. LaRue, 22 0. S. 469. State V. Cappeller, 39 0. S. 455. Case V. Wrcsler, 4 0. S. 561, 2. State V. Yanderbilt, 37 0. S. 590, 631. See State, ex rel., v. Fosdick, 15 N. P. (X.S.) 630. (e) Justification is also a defense in a proceeding before the public utilities commission, when the applicants seek to com- pel a railroad to continue an interurban service which was voluntarily established and long maintained, and the railway company justifies its plan to discontinue such service. Railwav v. Public Utilities Com'n., 92 0. S. 9. CHAPTER VII. COURT AND JURY. 90. Law and fact. 91. Credibility ol' witne.-^ses. 9"2. Classifying witnesses. 93. Weight of evidence. 94. Negative testimony. 9o. Statement of issues. 96. Two issues. 97. Summing up the evidence. 98. Facts considered without evidence. 99. Xonsuit — Scintilla rule. 100. Xonsuit — Motion by one party. 101. Nonsuit — Motion by each party. 102. Cases for the jury. 103. Conclusive proof. 104. In negligence cases. 105. In will contests. 90. LAW AND FACT. (a) A trial is a judicial examination of the i.ssues, whether of law or of fact, in an action or proceeding. Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds: (1) Issues of law; and (2) Issues of fact. Section 11376-7, General Code. (b) In all jury trials, it is the peculiar province of the jury to determine the questions of fact, and that of the court to determine the questions of law presented and to instruct the jury thereon. The judges of courts are selected with a view to their knowledge of the law, and the jurors with a view to their practical good sense on matters of fact. Robhins V. State, 8 0. S. 131, 167. Adams v. State, 29 0. S. 412. (c) In the trial of criminal causes as well as civil causes, it is the duty of the jury to receive the law as dotcrminod hy 111 § 90 METZLER'J OHIO TRIAL EVIDENCE 112 the court ; and no juror can rightfully disregard the law as declared in the instructions of the court to the jury. Robbins v. State, 8 0. S. 131. JMontgomery v. State, 11 Oh. 424. 427. Contra, State v. Turner, Wright 20. (d) The reading of law-books and decisions as a part of the argument with a view of showing the jury what the law is, may be disallowed; for the jury is not the judge of the law, even in criminal cases. However, it is not per se prejudicial error. McGuire v. State, 3 C. C. 5ol, 2 C. D. 318. Goodman v. Lynch, 17 C. C. (N.S.) 31. (e) An interrogatory to a jury should call for a special finding upon a question of fact; and one that calls for a con- clusion of law and also a finding of fact should not be sub- mitted. When submitting an interrogatory, it is not proper for the court to explain to the jury the legal effect of an ansAver thereto. Steel Co. V. Tanakis, n3 0. S. 300, 303. Walsh V. Thomas, 91 0. S. 210. (f) And the trial-judge is not authorized to consider thr facts in evidence, even when disposing of a motion for judg ment notwithstanding the verdict, or when determining whether there is an irreconcilable conflict between a general and a special verdict. Eailroad v. Xobil. 85 O. S. 175. McCoy V. Jones, f.l 0. S. 110. Mercer Co. v. Deitscli, 04 0. S. 1. (g) In mixed questions of law and fact, such as questions of reasonableness, probable cause, and due diligence, the ques- tion is one of law for the court when the material facts arc ascertained or admitted, and it can not properly be submitted to the jury as a question of fact. But where the facts are contested, it is for the decision of the jury under instructions by the court upon the law arising on the various hypothetical statements of facts claimed to be proved. Bassenhorst v. Wilby, 45 0. S. 333. Kroll V. Close, 82 6. S. 190. Ash V. Marlow, 20 Oh. 119. Walker v. Stetson, 14 0. S. 89. Davis V. Herrickj 6 Oh. 55. 113 COURT AND JURY § 90 (h) It is the general rule in jury eases that the tendency of evidential facts is a question for the court ; but the Aveight, sufficiency, and effect of such facts is especially the province of the jury. As to ultimate facts, the general rule is that the finding of such facts is the i)rovince of the jury; to apply the law to such facts is the province of the court. Tlollenbeck v. ^rf^rnlion. 2S 0. S. 1. Xewnam v. Cincinnati, IS Oil. 323. Beresford v. Stanley. G X. P. 38. 0. D. 134, 13S. State V. Robinson, S3 0. S. 13G, 143. (i) "Whether the evidence is material or tends to establish a fact is a question of law ; whether it does establish it, is a question of fact. So where the trial-court stated to the jury that there was testimony in the case tending to support or corroborate a witness, but its weight was left to the jury, the court did not err. Eerry v. State, 31 0. S. 219, 230. Barnes v. State, 15 C. C. 14, 8 C. J). 153. (j) The questions relating to the competency and admis- sibility of the evidence are matters properly within the prov- ince of the court. By its control over the admissibility of evidence, the court is required to exclude all that is incom- petent, and the jury are relied upon to ascertain the truth from the evidence which the law submits to them for their consideration. Mead v. McGra\v, 19 0. S. 55, G2. (k) The general rule is that all matters preliminary to the admission of evidence should be determined by the court. But when the court is in doubt about the matter, it may sub- mit the questions arising upon the jjroof to the jury under instructions to make no use of the evidence, unless satisfied by the preliminary proof that it is competent. Biirdge v. State, 53 0. S. 512, 517. (1) "W'here a question properly triable by the court is submitted to the jury, there is no error to the prejudice of the complaining party, as he had two tribunals instead of one Avhen the court passed upon the question by overruling the motion for a new trial. Insurance Co. v. Romeis, 8 C. D. 633, 15 C. C. 097. §91 METZLER'S OHIO TRIAL EVIDENCE 114 (m) And where an instruction as to the law, which is open to criticism, has been given by a trial-court to a jury, and the record discloses that the instruction could not have resulted in prejudice to the complaining party, it is error for a reviewing court to reverse the judgment of the trial-court upon that ground. Ha. 434. 27 0. C. A. 36(). 29 C. I). 17(1. (b) "Wlien evidence is offered to trace stolen property but one or more links are wanting, it is jjroper for the court to refuse to instruct the jury thnt the proof is insufficient and must be disregarded. The court should not give its opinion on the weight of evidence. Ilummol V. State, 17 0. S. 62S, 633. ^93 METZLER'S OHIO TRIAL EVIDENCE 118 (c) And a remark in the charge to the jury that the testi- mony of the plaintiff is not very clear and specific is errone- ous for the double reason that it is a comment upon the weight of the testimony, and also an intimation of opinion on the part of the court that there may have been some concealment by the plaintiff. Dickson v. Kilgonr, 1 X. P. (X.S.) 17. 14 0. T>. 59. (d) Where a fact material to the issue, concerning the existence of which there is a conflict in the evidence, is as- sumed by the court in the charge to the jury to be fully established, the province of the jury is invaded, and preju- dicial error is shown. nine V. State, 4.3 0. S. .3.32. Weybright v. Fleming. 40 O. S. .52. Weller v. State, 10 C. D. .381, 19 C. C. 166. (e) A special charge to the jury which is based on the assumption that a material fact exists in the case, but which fact is in dispute between the parties, is properly refused. And it is error to assume the existence of a fact, and, on that assumption, take from the jury evidence which otherwise would be competent. Railway v. Rigby, G9 0. S. 184. ~ Armstrong v. Traction Co.. 10 X. P. (X.S.| .-)81, 23 0. D. 21.5. Railway v. Dooley, 13 C. C. (N.S.) 22.5, 22 C. D. 6.5.5. Hastings v. Allen, 14 Oh. 58. (f) The court should refuse to give instructions which require the court to assume or imply the existence of material facts in issue in the case, although such facts are clearly proved by the evidence submitted to the jury. And when there is no uncertainty in the proof of a fact, it is error to assume uncertainty. Railway v. Snyder. 24 0. S. 670. Walker v. Devlin, 2 0. S. .5!>3. (g) It is error to charge the jury that any given fact in issue has been proved, even though the oral testimony in sup- 119 COURT AND JURY §94 port of that fact is -wholly uncontradicted, unless it amounts to an admission by the opposite party. Steamship Co. v. Chanfordi, 22 C. C. (N.S.) 310. Cf. Weller v. State, 10 C. D. 3S1, 19 C. C. 1C6. Miller v. Southworth, 10 C. C. 572, 5 C. D. lOl. Cf. Penquito v. Lawrence, 11 0. S. 274. (h) "Where an issue has been made by the pleadings ■which has not been waived, and evidence on the subject, but not conclusive in law, has been submitted, the failure of a party to contradict the evidence produced is not an admission of the fact; for the jury may not believe the evidence. And a charge- to the jury that such fact is uncontroverted and has been, established is prejudicial error. Toledo V. Meinert, 15 C. C. (X.S.) 545, 556. French v. IMillard, 2 0. S. 44. Nobil V. Railroad, 16 C. C (N.S.) 335. Kirkbride v. Railway, 22 C. C. (N.S.) 495, 501. (i) In an action for board, lodging, and washing, it is therefore error to charge that there is one witness who testi- fies as to value that they are worth four dollars a week; that, in the absence of other testimony, you are bound to consider four dollars a week as the value of the services. Wilson V. Brown, 12 C. D. 719. (j) It is an invasion of the province of the jury for the court to recite to the jury the substance of the evidence for the state and give the details of the circumstances surround- ing the commission of the alleged offense, and instruct them that those facts are shown by the uncontradicted evidence in the case. Where a defendant enters a plea of not guilty, he puts in issue all the material facts, including the corpus delicti. Morgan v. State, 48 O. S. 371. Preniack v. State, 11 C. C. (N.S.) 364, 20 C. D. 828. 94. NEGATIVE TESTIMONY. (a) The general rule is that positive testimony is of greater Aveight than negative testimony. But the rule should never come in conflict witli the general rule that llie weight of the evidence sliould ))c left to Ilic jiiv;-. The (luestion of §94 METZLER'S OHIO TRIAL EVIDENCE 120 the weight to be given to negative testimony often arises in railroad and other accident cases where it is claimed that signals were not given. In such cases, the question is purely for the jury. Railway v. Richerson. 1!) C. C. 3S.-). 10 C. D. 32i;, ?/.V). Railway v. Rohnor, 6 C. D. 706, 9 C. C. 702. (b) Where a witness testifies simply that he did not hear a signal given, and the fact is that at the time he was not giving particular attention to the subject and can go no fur- ther than to say that he did not hear it, that is negative testimony. Railway v. Richerson, 19 C. C. 3S5, 10 C. D. 326, 329. Cf. Boyd V. Sell, Tappan 43. (c) The testimony of a witness who was near enough to hear and see, that he was paying particular attention and that lie looked and listened for a train, and that the bell was not rung nor the whistle sounded, is not negative testimony ; it is as much positive or affirmative testimony as that of a witness who testifies that a signal was given. Railway v. Richerson, 19 C. C. 3So, 10 C. D. 32ii. Railroad v. Scliade, 15 C. C. 424, 8 C. D. 316. (d) Where the testimony was of this character, the court properly refused to charge the jury that where all the wit- nesses are unimpeached, they must give the greater weight to the testimony of those who speak positively. Railway v. Richerson. 19 C. C. 3So, 10 C. D. 326. (e) The following form of charge was approved: "If you find the witnesses of equal credibility and had equal oppor- tunities to hear, then I charge you that the affirmative testi- mony of the witness who says that he heard the gong sounded is of greater value than the testimony of other witnesses." Traction Co. v. Harrison. 24 C. C. (N.S.) 1. (f) Negative testimony on questions of notoriety is en- titled to full weight, provided the opposing witnesses have equal advantages of information. And affidavits on a motion for change of venue to show prejudice against the accused do ]-.ot preponderate over those showing its absence on the theory y?! COURT AND JURY §95 that the hitter are negative; for as far as based on fact, both, are equally positive. ]\IcArthur v. Phoebus, 2 Oh. 415, 426. Townsend v. State, 25 C. D. 408, 17 C. C. (X.S.) 380, 381. 05. STATEMENT OF ISSUES. (a) In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require ; and it is the duty of the court to distinguish between and call the attention of the jury to the material allegations of fact which are admitted and those which are denied. It is not sufficient to read the pleadings to the jury. Railroad v. Loekwood, 72 0. ?. 5S6. See Jones v. Bank Co., 05 O. S. 253, 200. (b) It is improper to refer the jury to the pleadings and neglect to state the issues, especially when there are several issues. And when the issues are correctly stated, it is not necessary to read the pleadings or send them to the jury. Provision Co. v. Blaha, 18 C. C. (N.S.) 33. Railway v. Beckwitli, 12 C. D. 559. Greve v. Traction Co., 15 X. P. (X.S.) 280. (c) In instructing a jury on the vital issues of a ease about to be submitted to them for determination, it is not prejudicial error to so group or summarize the issues that the jury may intelligently understand them. Traction Co. v. Hart, 2 0. A pp. 1, 19 C. C. (X.S.) 71, 25 C. D. 347. (d) Tlie object of a charge is to bring into view the issues in the case and other aspects developed at the trial, and to show the jury by a proper statement of the law how the evi- dence should be applied; when that is done, in legal view, the charge is complete. "When an instruction has been once clearly stated, it is right not to repeat it in varied form of expression; and 1o avoid confusion in the minds of the jury, it is generally Avise to refuse to do so. Donald V. State, 11 C. P. 483, 21 C. C. 124. (e) Where from a consideration of 1h(^ whole charge of the court, it is seen Ihat tlic JMi'v has been given a compre- §95 METZLER'S OHIO TRIAL EVIDENCE 122 hensive and intelligible instruction concerning the issues and the application of technical terms used, the fact that a par- ticular term is also used in a special charge, or in other parts of the general charge, without such explanation, should not be held to be erroneous. Piqua V. Morris, 98 0. S. 42. (f) The charge of the court to the jury should be founded upon and be applicable to the issues and the evidence in the case. And the rule that the court ought to adapt its charge to the issues made by the pleadings and the evidence, forbids the introduction of instructions upon an issue not so raised. For example, the court should not charge the jury on the subject of the last clear chance when that issue is not pre- sented in the pleadings or by the evidence. Lytle V. Boyer, 33 0. S. 506. Traction Co. v. Forrest, 73 0. S. 1. Armstrong v. Siddall, 12 C. D. 627. Railway v. Janeski, 4 C. D. 218, 12 C. C. 685. Cromley v. State, 19 C. C. (X.S.) 526, 26 C. D. 209. State V. Linder, 76 O. S. 463. Railways & Light Co. v. Poland, 7 0. Ai)p. 3(17, 27 0. C. A. lO.i, 28 C. D. 198. (g) Where no evidence is offered upon an issue joined by the pleadings in the case, the trial-court is not required to charge the jury upon such issue ; but, on the contrary, the jury should be directed not to consider it. Lewistown Co. v. Stone Co., 92 0. S. 76. Boviard Co. v. Maitland, 92 0. S. 201, 206. (h) Where, upon a trial before a jury, a charge pertinent to the evidence is asked, it is error for the court to annex to such charge a material qualitication based upon a state of facts purely conjectural, and as to w^hich it affirmatively ap- pears that no evidence has been given to the jury. And if prejudicial, it calls for a reversal. Bain v. Wilson, 10 O. S. 14. Walker v. Stetson, 14 0. S. 89. French v. Millard, 2 0. S. 44. Railway v. Bixler, 12 C. D. 653. 123 COURT AND JURY §96 (i) A charge to tlie jury should be a plain, distinct, and unambiguous statement of the law as applicable to the ease made before the jury by the proof, and not mere abstract legal rules. A refusal to give a charge embracing a mere ab- stract question of law, having no application to the issue and facts of the case on trial, is no ground for reversing a judgment. Parmlee v. Adolph,-28 0. S. 10. Railway v. Firming, 30 O. S. 480. Coal Co. V. Esticvenard. 53 0. S. 4.^ Eailroad v. Picksley, 24 0. S. 654. Bank v. Litt, 5 0. App. 439, 26 C. C. (X.S.) 14.5, 30 C. D. 361. (j) If a single fact would be decisive of the rights of the parties, the court may charge that if the jury finds that this particular fact has been proved, they should return a verdict for the party in whose favor such fact is established, Richardson v. Curtiss, 33 0. S. 329. (k) A party is not entitled to have the jury instructed to render a verdict in his favor upon a hypothetical statement of the facts of the case, if the statement omits material facts upon which testimony has been offered, and where the finding of the omitted facts against the party would change the re- sult of the case. Eailroad v. Crawford, 24 0. S. 631. Jenkins v. Railroad, 2 Disney 49, 3 Gaz. 117. 96. TWO ISSUES. (a) Where two issues are presented in the pleadings and there is a verdict finding the issues for the defendant, and such finding on either issue entitles him to a general judg- ment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instruc- tions of the court to the jury relatincr exclusively to one of the issues. MMllistpr V. TTartzell, 60 0. S. 60. Sites V. Ilaverstick, 23 O. S. 626. Brown v. Dusha, I 0. App. 232, 20 C. C. (X.S.) 310, 25 C. D. 437. Reese v. Mannen Co., 19 C. C. (X.S.) 194. §97 METZLER'S OHIO TRIAL EVIDENCE 124 (b) The reason for the foregoing rule is that the jury- might have based its verdict on the issue in which there was no error. In order to avoid this situation, it is suggested that the record be made to show on what issue the jury decides the case by answers to interrogatories submitted to it. Beecher v. Dnnlap, 52 0. S. 64, 65. State, ex rcl.. v. Hills, 94 0. S. 171. Niemes v. Nienies, 97 0. S. 14.5, 149. (c) However, where a verdict for the plaintiff might have been rendered upon either of two causes of action, but it does not appear upon which, a refusal to give a proper instruction on behalf of the defendant as to either cause of action will entitle him to a new trial. Penn. Co. v. Miller, .35 0. S. 541. Contra, Railway v. Powell, 22 C. C. (X.S.) 305. (d) If two or more defenses have been introduced, each of which is sufficient, it is error for the court to instruct the jury that they must find that all of such defenses have been estab- lished by a preponderance of the evidence. Jones V. Bank Co., 95 0. S. 253, 260. 97. SUMMING UP THE EVIDENCE. (a) The court in charging the jury may properly recite what is claimed by the parties to be proved, where this is fairly done for the purpose of a proper explanation of the law applicable to the case. But the statement of the evidence by the court argumentatively, so as to give the jury the manifest conclusion of the court as to the fact submitted to their deter- mination, is uniformly condemned as improper. Mimms v. State, 16 0. S. 221. Insurance Co. v. Insurance Co., 5 0. S. 450, 482. Delaware v. Construction Co., 21 C. C. (X.S.) 137. (b) The fact that juries are alert to catch the least note from the presiding judge as to his view of the dominant ques- tions in the case, renders it of first importance where the judge undertakes to state the testimony in his charge, that he state it correctly ; a substantia'! variation in his statement as 125 COURT AND JURY §97 to the testimony relating to a controlling issue is ground for reversal. Wuest V. Railway, 5 C. C. (X.S.) G19. 17 C. D. 3G5. Church V. Crocker, 7 C. C. 327, 4 C. D. 619. (c) In the trial of a jury case, the judge is not required to sum up the evidence. It is not imi)roper to do so, providing it is fairly done, and all the material evidence on both sides fairly presented. But it is improper and erroneous for the judge to single out isolated parts of the testimony, and in- struct as to the law arising on the facts which such testimony tends to prove, or to give undue prominence to some portions of the testimony, and entirely pass over other portions equally important or give the same but slight attention. Morgan v. State. 4S 0. S. 371. Railway v. Morehnul, 12 C. D. 012. Rapp V. Becker, 4 C. C. (X.S.) 139, IG C. D. 321. (d) The court should not give special prominence to par- ticular circumstances of a case. But recalling the jury and emphasizing certain parts of the charge previously given is not reversible if the circumstances of the trial warrant it. Railroad v. Everett, 10 C. D. 493, 19 C. C. 205, 215. Chatfield & Woods Co. v. Eekert, 2 0. L. R. 440, 71 0. S, 544. Powers V. Boehme, 17 C. C. (N.S.) 37. (e) Section 11452 of the General Code authorizes the trial. judge on request of the jury, to state his recollection as to the testimony upon a disputed i)oint. And in a criminal case, it is not error for the court to comply with such a request from the jury. IIoAvever, if the witness is fair, he had better be a:Ij\. ed to restate his evidence. Section 11452, General Code. Ilulse V. State, 35 0. S. 421. Simmons v. Savings Society, 2 I'.uil. 2S3, 5 0. D. R. 527. (f) Instructions advising the jury of the object for which particular items of evidence arc admitted, and cautioning them against being misled by their improi)cr use, are cer- tainly proper, and are often called for by the circumstances of the case. But the instructions ought to be so given as not to withdraw the evidence from the consideration of the jury, §98 METZLER'S OHIO TRIAL EVIDENCE 126 nor restrain them from giving it such weight as they believe it deserves. Harrington v. State, 19 0. S. 264, 270. See Reid v. Sycks, 27 0. S. 285, 288. 98. FACTS CONSIDERED WITHOUT EVIDENCE. (a) It is the general rule that facts of which no evidence is offered and no presumption arises are legally outside of the case, and can not be brought before the jury under any pre- tense whatever. If a juror possesses personal knowledge of a fact pertinent to the issue, he must be sworn as a witness before any benefit can be derived to either party by the knowledge thus possessed. Insurance Co. v. Cheever, 36 0. S. 201, 210. Railroad v. Cavagna, 6 C. C. 606, 3 C. D. 608. Andrews v. Railway, 8 C. D. 584, 19 C. C. 699. (b) While the jurors can not act in any case upon particu- lar facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently, they must, judge of the weight and force of that evidence by their own general knowl- edge of the subject of the inquiry. Hossler v. Trump, 62 0. S. 139, 145. (c) When, upon the trial of the general issue, in an action upon a quantum meruit for services of a domestic character, the plaintiff offers evidence showing the facts from which the promise to pay may properly be inferred, and also showing the nature and extent of the services rendered, the case should be submitted to the jury, although no witness expresses an opinion as to the value of the services. Hossler v. Trump, 62 0. S. 139. Mclntyre v. Garlick, 4 C. D. 429, 8 C. C. 416. Contra, Johnson v. Spiegel, 4 C. C. 388, 2 C. D. 612. (d) While it would be eminently proper in a personal injury case to charge the jury that in the absence of evidence as to the earnings of the plaintiff, the jury may use their com- mon knowledge as to what persons similarly employed are 127 COURT AND JURY §99 accustomed to earn, yet a refusal to give such a charge does not constitute error. Jurors need not be instructed in what they are presumed to know. Traction Co. v. Ward, 6 C. C. (X.S.) 3S5, 17 C. D. 761. (e) In fixing the vahie of property in a condemnation suit, the jury in considering the evidence before them may also appl}^ their own sound judgment as to value ; and where it does not appear that the jury acted on any wrong basis or with partiality or bias, their verdict will not be set aside ex- cept for prejudicial error. Grain Co. v. Cincinnati, 14 C. C. (N.S.) 85. (f) However, it is not error to refuse to give a special charge which in effect tells the jury that the impressions from viewing the premises was evidence and better evidence than the testimony of witnesses whose testimony may be in con- flict therewith as to physical features and general facts relat- ing to the land. Traction Co. v. Dempsey. 9 N. P. (X.S.) 65, 21 0. D. 694. (g) Where the witnesses describe a horse and place a value on it, the court may charge the jury that if from the other evidence they would place a different value on it, they may so decide on their own judgment. Buddenburg v. Wearsch, 20 C. C. (X.S.) 372. (h) In an action for malicious tort, the jury may in its discretion allow a reasonable attorney's fee to plaintiff, but without evidence. Neither party may prove the value of such services. Stevenson v. Morris, 37 O. S. 10. 99. NONSUIT— SCINTILLA RULE. (a) The trial-court has the power in a proper ease to take the evidence from the jury and order a peremptory nonsuit. But the judgment entered has not the effect of a nonsuit at common law ; it is a decision of the case upon the merits, and the judgment is final. Ellis V. Insurance Co., 4 0. S. 628. Stockstm V. Railroad. 24 0. S. 83. Byrd v. Blessing, 11 0. S. 302. ^99 METZLER'S OHIO TRIAL EVIDENCE 128 (b) When the party having the burden of proof has rested and has failed to introduce evidence tending to prove all facts essential to a right to recover, the court may, upon motion, arrest the case from the consideration of the jury and direct a verdict for the adverse party. Ruffner v. Railroad, 6 A. L. R. 6So. 5 0. D. P.. 569. See Burke v. Railroad, 06 O. S. 496, 504. (c) Not many years ago there was a tendency in the courts of this state to abrogate the scintilla rule ; but in May, 1913, the supreme court held that it is a denial of the right of trial by jury, and therefore, reversible error, to direct a verdict against objection, if there is some evidence tending to prove every essential fact; that the right of trial by jury, being guaranteed to all our citizens by the constitution of the state, can not be invaded or violated by either legislative act or judicial order, Gibbs v. Girard, 88 0. S. 34. (d) A motion to arrest the evidence from the jury and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court ; but if there is evidence tending to prove each material fact put in issue and indispensable to a recovery, it should be submitted to the jury under proper instructions. The court can not pass upon the weight and sufficiency of the evidence. Dick V. Railroad, 3S 0. S. 380. Stockstill V. Railroad, 24 O. S. 83. Ellis V. Insurance Co., 4 0. S. 628. (e) For the purpose of a motion to direct a verdict for defendant, it is said that everything is admitted which the evidence tends to prove; and this involves and includes any and every conclusion which a jury might fairly and reason- ably deduce from the evidence. That construction of the evi- dence must be adopted which is most favorable to the plaintiff. Stewart v. Bridge Co., 8 C. D. 454, 15 C. C. 601. Frank v. Brewing Co., 5 0. L. R. 559, 53 Bull. 37. (f) A party is entitled to the opinion of the jury upon the iV:cts tending to prove his case if there is some evidence tend- 129 COURT AND JURY § 100 ing to prove each of the material averments of the petition, even though the showing is so slight that the court would feel called upon to set aside a verdict rendered upon such insuffi- cient evidence. Clark V. Stitt, 4 G. D. 51, 12 C. C. 759. Dick V. Railroad, 38 0. S. 3S9, 393. (g) Where the court directs a verdict, there is not an opportunity for a retrial of the case ; whereas, when a verdict is rendered, if the court finds that it should be set aside on account of the weight of the evidence, the party is entitled to a new trial, upon which it is possible that he will produce sufficient evidence to entitle him to a verdict. Cloak Co. V. Credit Co., 17 C. C. (X.S.) 559, 5G0. (h) The fact that a trial-court in arresting a cause from the jury based its action on wrong grounds is immaterial where other grounds existed which warranted such action. But a court is not authorized to direct a verdict for de- fendant on the ground that plaintiff has not proved any dam- ages, when by a ruling of the court the plaintiff has been, deprived of evidence necessary to make out his case. Boswell V. Insurance Co.. 26 C. C. (N.S.) 3S.i. Kneipper v. Richards, 7 C. C. (X.S.) 5S1, 16 C. D. 245. (i) In criminal cases, a question for the jury must be left to the jury. Unless there is entire failure of proof as to an essential element of the crime, the court is not authorized to direct a verdict for the defendant. State V. Gross, 91 0. S. 161. Cf. Fastbinder v. State, 42 0. S. 341. State V. Nuttles, 4 Bull. 963, 7 0. D. R. 686. 100. NONSUIT— MOTION BY ONE PARTY. (a) A defendant who elects to proceed with his evidence after the overruling of his motion for nonsuit, waives his ex- ception. If he does not desire to stand oi his exception, he may introduce his evidence and then renew his motion at the close of all the evidence. Doren v. Fleming, 6 C. C. (N.S.) 81. 17 C. T). 737. Mining Co. v. Jones Co., 15 C. C. (X.S.) .369. Dannemiller v. Zimmerman, 22 C. C. (X.S.) 54.>. Traction Co. v. Dnrack, 78 0. S. 243. metzleb's tbial ev. — 5 §102 METZLER'S OHIO TRIAL EVIDENCE 130 (b) Upon renewal of such a motion at the close of all the evidence, any deficiency in the evidence for the plaintiff which has been corrected by that offered for the defendant inures to the benefit of the plaintiff. Mining Co. v. Jones Co., 15 C. C. (X.S.) 369. 101. NONSUIT— MOTION BY EACH PARTY. (a) "When, on the trial of an action to a jury, a motion for a directed verdict is made by the defendant at the close of plaintiff's evidence, and the plaintiff joins in said motion, asking for a directed verdict in favor of the plaintiff, such motion by the plaintiff is not a submission of the cause to the court, and it is error for the court to sustain the same and to direct a verdict in plaintiff's favor, unless the defend- ant has declined to offer any evidence and has rested his case. A motion by the plaintiff for a directed verdict acts as a sub- mission of the entire case, only when it is made at the close of all the evidence. Canton v. Pryke, 5 O. App. 304, -20 C. C. (X.S.i -Ifi.-), 27 C. D. .130. (b) Where at the close of all the evidence, each party moves for a directed verdict in his favor, the parties thereby clothe the court with the functions of a jury. Bank v. Hayes, 64 0. S. 100. Beckel v. Insurance Co., 15 X. P. (X.S.) 266. Richter v. Loan Co., 7 C. C. (X.S.) 360, 17 C. D. 793. (c) And where the party whose request is denied does not thereupon request to go to the jury upon the facts, the ver- dict so rendered should not be set aside by a reviewing court unless clearly against the weight of the evidence. And if the party whose motion is denied asks the court to submit the cause to the jury, it is prejudicial error for the court to refuse. Bank v. Hayes, 64 0. S. 100. Gilligan v. Arcanum, 5 C. C. (X.S.) 471, 16 C. D. 42. Perkins v. Commissioners, 88 O. S. 495. 102. CASES FOR THE JURY. (a) Where there is evidence upon both sides, which is conflicting, it is error to direct a verdict for either party, 131 COURT AND JURY § 102 although tlie court would grant a new trial on the weight of the evidence. Hollenbeck v. McMahon, 28 0. S. 1. CloaK Co. V. Credit Co., 17 C. C. (N.S.) 559. Mendenhull v. Haven, 9 C. D. 609, 19 C. C. 6So. (b) And where the plaintiff has made a prima facie case, and the defendant has rebutted it, the court has no authority to direct the jury to find a verdict for the defendant. Such a case must be reversed, although the reviewing court may be satisfied that the defendant was, in fact, entitled to a verdict. NewTiam v. Cincinnati, IS Oh. 32.3, 334. Hughes V. Lehan, 1 C. C. 9, 1 C. D. 5. (c) "Where facts necessary to the determination of an issue are in dispute, it is error to direct a verdict; and this rule applies when there is such a conflict in the evidence as to material facts that different minds may arrive at different conclusions. And where on error, the evidence is of this char- acter, a reviewing court will not set aside the verdict of the jury, but its finding will be accepted as conclusive. And the judgment of a trial-judge who has passed upon the suflficieney and weight of such evidence will not be disturbed. Business College v. Lloyd, 60 0. S. 448. Burton v. Granite Co., 5 0. .\pi). 117, 25 C. C. (X.S.) 470, 27 C. D. 134. Crawford v. Merrell, .5 0. App. 146, 25 C. C. (N.S.) 537, 27 C. I). 104. Whiting V. State, 48 0. S. 220. Loney v. Hall, 8 0. App. 1.14, 28 0. C. A. 14, 2!) C. 1). 453. (d) And where there is no substantial conflict in the testi- mony, but the unconfiicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to that issue, it is the duty of the court to submit it to the jury. Hickman v. Tn.surancc Co., 92 0. S. 87. (e) It is for the jury to say whether a party has sustained his burden of proof; and it is error for the court to direct a verdict for one having the burden of proof, though his uncon- tradicted evidence makes a prima facie case. "Railway v. Rnydor, 21 C. C. (X.S.) 504. Forsfhn.-r v. Mellick, 16 C. C. (X.S.) 309. Cf. Bode V. Werner, 4 C. C. (X.S.) 158. 16 C. D. 206. §103 METZLER'S OHIO TRIAL EVIDENCE 132 (f) It is error to instruct the jury to tind on any point in favor of a party holding the burden of proof as to such point, unless the same is admitted by the opposing party in such wise as to dispense witli proof, or unless the law attaches to such evidence as is produced the quality of being conclusive. Degraw v. Lampert, 17 C. C. (X.S.) 401. See Brick Co. v. Koblitz, 22 C. C. (N.S.) 5S0. (g) But a direction to the jury to return a verdict for the jilaintiff is not erroneous in a case where the plaintiff is en- titled to recover on the pleadings, and his evidence also tended to establish his right to recover, and there was no testimony offered tending to disprove his case. Whelan v. Kinsley, 26 0. S. 131. 103. CONCLUSIVE PROOF. (a) Though issues joined in a case are triable to a jury, when the facts are conclusively determined in a manner not affected by material error, the application of the law to such facts is a function of the court ; and its exercise, when prop- erly invoked, becomes a dutj^ But when the evidence is not conclusive, it is error for the court to take the question from the jury. Gas & Electric Co. v. Archdeacon. SO O. S. 27. Pcnquite v. Lawrence, 11 0. S. 274. See Chase v. Brum] age, 58 0. S. 517. (b) And this is true at whatever stage of the progress of a case or in whatever manner the material facts may be thus established, whether it is by the statements of counsel for the purpose of the trial, or by the failure of the party upon whom the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support, or by the concurrent testimony of all the witnesses, or by an agreed statement of facts, or by a special verdict, or by the answer of the jury to interrogatories. Gas & Electric Co. v. Archdeacon. SO 0. S. 27, .*?8. (c) The court may direct a verdict for the defendant where there is no conflict in the evidence as to a material fact, and no inference can be drawn except that which is lo3 COURT AND JURY §104 favorable to the defendant. And where the evidence of the defendant is exelnsively documentary, raises a question of law only, and shows that the verdict must be for the defendant, the court has power to direct such a verdict. rioots V. Kilbroth, 18 Bull. 5S, 10 O. D. T^. 20. Kohl V. Hannaford, 4 A. L. R. 372, 5 0. D. R. 306. (d) When the controlling facts are conceded on the trial, it is not error for the court to direct the jury to bring in a verdict in accordance with such facts; and a right verdict based on wrong reasons will not be set aside if on the con- ceded facts it was clearly right. Rank v. Craig, 63 0. S. 374. King V. Herb, 9 C. D. 7!)7, IS C. C. 41. (e) A defendant is entitled to have the cause withdraAvn from the jury, and a dismissal of the petition entered, when counsel for the plaintiff in his opening statement to the jury fails to state facts which support the essential averments of the petition, and he is unable to add to the facts which he has presented. But directing a verdict for the defendant on plain- tiff's opening statement is reversible error where no oppor- tunity is given to plaintiff to modify, explain, or add to his statement. Cornell v. Morrison, 87 0. S. 215. Rodeff V. Railway, 7 0. App. 73, 27 0. C. A. 571, 2!) C. D. 105. See Davis v. Railway. 15 X. P. (X.S.) 416, 24 0. 1). 172. Piano Co. v. Stewart, 25 C. C. (X.S.) 270, 27 C. D. 428. 104. IN NEGLIGENCE CASES. (a) In an action for alleged negligence, the question of negligence on the part of the defendant or of contributory negligence on the part of the plaintiff is a mixed question of law and fact to be decided by the jury under proper instruc- tions from the court. Railroad v. Crawford, 24 0. S. 631. Railway v. Fleming, 30 0. S. 480. Pennsylvania Co. v. Rathgeb, 32 0. S. GO. Railway v. Mendenhall, 7 O. App. 356, 27 O. C. A. 376. (b) But if all the material facts touching the alleged neir- ligence are undisputed, or are found by the jury, and admit §104 METZLER'S OHIO TRIAL EVIDENCE 134 of no rational inference but that of negligence, the question of negligence becomes a matter of law merely, and the court should so charge the jury. T^ailroad v. Crawford, 24 0. S. 631. Pennsylvania Co. v. Rathgeb, 32 0. S. GG. (c) If, however, the testimony is conflicting and the facts uncertain, or the proper inferences to be drawn therefrom doubtful, it would be error for the court to withdraw the case from the jury or direct them to return a particular verdict. Railroad v. Crawford, 24 0. S. 631. Railway v. Wadsworth, 1 C. C. (X.S.) 483, lo C. D. 37G. (d) A motion to direct a verdict for the defendant in a negligence case involves the scintilla rule. Therefore, if there is any evidence, hoM^ever slight, tending to prove each of the material allegations necessary for the plaintiff to recover, the court can not properly direct the verdict for the defendant under that rule. Railroad v. Van Horn, 21 C. C. 337, 12 C. D. 106. Railway v. Andrews, oS 0. S. 426. Railway v. Marsh, 63 0. S. 236. Bender v. Hanna, 16 C. C. (N.S.) 387. Gerwe v. Fireworks Co., 12 C. C. 420, 5 C. D. 616. (e) But it is not error for the trial-court to direct a ver- dict for the defendant where the plaintiff offers no evidence tending to prove either that the defendant was negligent in the particulars averred in the petition, or that the negligent acts complained of were the proximate cause of the injury. Brewing Co. v. Ulland, 97 0. S. 210. (f) To establish negligence, there should be either direct proof of the facts constituting such negligence, or proof of facts from which negligence may be reasonably inferred. In the absence of direct evidence, an allegation of negligence is not sustained by proof of circumstances from which the infer- ence that the injuries were caused by such negligence is not a more natural inference than any other. Railway v. TNlarsli, 63 O. S. 236. Railway v. Andrews, 58 0. S. 426. Wagner v. Construction Co., 17 C. C. (X.S.) 134. Smith V. Curtiss, 10 C. C. (X.S.) 140, 20 C. D. 29. Railroad v. INIcMillan, 37 0. S. 554. 135 COURT AND JURY §105 (g) In an action against a railway company for damages sustained by fire, which it is alleged was started by sparks from one of the defendant's locomotives, a motion for a directed verdict for the defendant lies, when the circum- stances, shown to have existed at the time, fail to afford a basis for a fair and reasonable inference as to the cause of the fire, but rests wholly on guess and conjecture. Hoop Co. V. Railway, 20 X. P. (X.S.) 529. 28 0. D. .373. (h) Where the evidence of the plaintiff shows actionable negligence on the part of the defendant, and the question of contributory negligence depends on a variety of circumstances, from which different minds may reasonably arrive at differ- ent conclusions as to whether there was negligence, the ques- tions should be submitted to the jury under proper instructions. Eailroad v. Picksley, 24 0. S. 654. Railway v. Murphy, 50 0. S. 135. Railway v. Sncll, 54 0. S. 197. Kelly V. Howell, 41 0. S. 438. Weingartner v. Railway, 3 0. App. 12, 21 C. C. (X.S.) 494. Railway v. Weingertmr, 93 0. S. 124. 105. IN WILL CONTESTS. (a) In the trial of a contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will, the trial-court may direct the jury to find a verdict sustaining the will. Where no evidence was proffered as to whether a properly executed will was or was not road to the testator and explained to him at the time of its execution, but it ap- pears that his mental condition was such as to leave no doubt of his capacity to make an intelligible and discreet disposition of his property, and it is in evidence that when the will was republished by the addition of codicils it was read and ex- plained to him paragraph by paragraph, it is not error to direct a verdict for the defendants. Waprner v. Ziejrler, 44 0. S. 59. Morris v. Osborne, 27 0. C. A. IHl, 29 C. T>. 2S0. Edwards v. Davis, 30 Bull. 2S3. II O. D. R. S7f.. (b) In a will contest, the jury and not the trial-judge is required to weigh the evidence and determine whether or not §105 METZLER'S OHIO TRIAL EVIDENCE 136 the contestant has offered sufficient evidence to overcome the prima facie case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to jn^ove each material fact in issue, it is exercising the province of tlie jury for the court to ignore the evidence and direct a verdict for defendants. This case has been affirmed by the supreme court of the state, which holds that the scintilla rule of evidence is to be applied in will contests as in the ordinary jury trial of a civil action. McFarland v. Clark, 2S 0. C. A. -217, 21) C. D. -I'.H. Clark V. McFarlanJ, 91) (). S. — . (c) Prior to the decision of the supreme court, it had been held that where a motion is interposed at the close of the evidence for the contestants in a will case, to direct a verdict for the contestees, the trial-judge is not bound by the scintilla rule; but would determine whether the evidence which had been offered was sufficient to countervail the prima facie case made by the order of probate. This rule is contrary to the rule in civil cases generally. Gomien v. Weidemer, 27 0. C. A. 177, 29 C. D. 1. Kamniunn v. Kanimann, 6 0. App. 433, 2(i C. C. (X.S.) 60, 29 C. D. 349. Schneider v. Reitelbach, 17.X. P. (X.f^.) 124, 25 O. D. 107. Hall V. Hall. 13 (). D. 1C7, 2 0. L. R. 32S. Beresford v. Stanley, 9 0. D. 134, 6 N. P. 3S. (d) On the trial of an action to contest the validity of a will, when it appears on the face of the will that it was not signed at the end thereof as required by statute, it is not error for the trial-judge to direct a verdict that the writing is not a valid will. Sears v. Sears, 77 0. S. 104. (e) "Where it is evident from the testimony that the will was not read either to or by the testator, that it was not acknowledged by him, and that he had no knowledge of what it contained, it can not be said that such will was executed by the testator in such a manner as to comply with the re- quirements of the statute; and the verdict of a jury sustain- ing such will is not sustained by the evidence and Avill be set aside.- Koch V. Meyers, 7 0. App. 300, 29 O. C. A. 142, 30 C. D. 439. See Wass v. Trust Co., 15 0. D. 677. CHAPTER VIII. ISSUE AND VARIANCE. 106. General principles. 107. Immaterial variance. 108. Material variance. 109. Time for objection. 110. Conforming pleading to proof. 111. Inserting allegations. 112. Defect waived. 113. Objection before trial — Defect not waived. 114. Failure of proof. 11.5. Variance as to immaterial allegations. 116. Rule applied to answers. 117. Rule applied to replies. 106. GENERAL PRINCIPLES. (a) The law has established well-defined rules determin- ing the admissibility of evidence, one of which is that the evi- dence offered must correspond with the allegations and be confined to the point in issue. The allegations and proof must substantially agree. Insurance Co. v. Cheever, 36 0. S. 201, 210. Palmer v. llumistoii, 87 0. S. 401. Reynolds v. Morris, 7 0. S. 310, 315. Henkle v. McClure, 32 0. S. 202. (b) Therefore, a party may object if the evidence offered by the other side is not confined to the issue. However, when a pleading is only indefinite, the courts are liberal in admit- ting evidence to prove the allegations. Objections to evidence in such cases are not favored for the reason that the adverse party might have required the pleading to be made definite and certain by a motion for that purpose. See Section 11336, General Code. Bates Pleading, p. 540. (c) The sufficiency of pleadings under the code as to cer- tainty, precision, definiteness, and consistency of allegations, 137 '§106 M^TZU^R'S OHIO TRIAL EVIDENCE 138 and in respect to all defects of allegations except omission of a fact necessary to the action or defense, must be objected to by motion to make definite and certain; and if the parties proceed to trial, the objection is waived. Trustees v. Odlin, 8 0. S. 293, 297. Tuttle V. Furi, 22 C. C. (N.S.) 388, 390. (d) "Where a defendant by way of defense to a note, pleads in general terms that it is wholly without consideration and void, and the plaintiff joins issue without requiring the answer to be made definite by a statement of the facts on ■which the defense is based, any evidence is admissible on the trial which tends to impeach or sustain the consideration. Chamberlain v. Railroad, 15 0. S. 225, 250. (e) AA^here a petition for personal injuries sets forth that plaintiff has been put to great expense for nursing and medi- cines, but does not set forth the amount thereof separately, evidence of the value of medical services is admissible, if there was no motion to make such petition definite and cer- tain in this particular. ■Railway v. Westenluibor, 12 C. D. 22, 22 C. C. 67. Railway v. Tuclcer, 7 C. D. 169, 13 C. C. 411. (f) Where the defendant is charged with a tort on a cer- tain day, and at other times between certain named dates, and the defeiulant did not file a motion to make definite, evidence of any such toit between the dates named may be considered as a ground for recovery, Alpin V. TiIortoTi. 21 0. R. 536. See Heeney v. Kilbane, 59 0. S. 499. (g") The general rule is that no act of negligence can be proved unless it is alleged in the petition. However, the alle- gation that the defendant negligently committed the particu- lar act which led to the injury, furnishes the predicate for the proof of all such incidental facts and circumstances, both of omission and commission as fairly tend to establish the negli- gence of the primary fact complained of. Railroad v. Lockwood, 72 0. S. 586. Davis V. Guarnieri, 45 0. S. 470, 485. Railway v. Janeski, 4 C. D. 218, 12 C. C. 685. Cf. Railroad v. Kistler, 66 O. S. 326, .333. 139 ISSUE AND VARIANCE §107 (h) In will contests, the issue having been prescribed by statute, the general rule does not apply; and any competent evidence tending to prove that the instrument is not the valid Avill of the testator is admissible, although the specific ground of contest to v/hich the evidence relates is not alleged in the petition. Dew V. Reid 52 0. S. 519. (i) When the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, and a motion is made to require such plead- ing to be made definite and certain, it is error to overrule such motion. Railroad v, Kistler, 66 0. S. 326. Cf. Hazen v. O'Connor, 8 C. D. 87, 14 C. C. 529. (j) But the rule confining evidence to the issue does not require that the pleadings should contain a statement of such facts as are properly mere evidence of a fact in issue. A party is not required to state the character of the evidence on v^hich he will rely to support his averments. ReVr V. Maohino Co., 12 0. S. 175, 170. Railway v. Gaffney, 65 0. S. 104, 118. Davis V. Guarnieri, 45 0. S. 470. 107. IMMATERIAL VARIANCE. (a) When the variance between the allegation in a plead- ing and the proof is not material, the court may direct the fact to be found according to the evidence, nnd order an im- mediate amendment without costs. Sec Section 11557, General Code. (b) The evident object of the code is to vest in the court a discretion to try the case upon the evidence outside of the pleadings where it can ))e (lone without surprise or injury; and if objection is made, to allow the })leadings to be con- formed to the evidence at once and without terms. nofTman v. Gordon. 15 0. S. :>11, 218. Flynn v. Wiltshire, 19 C. C. (N.S.) 433. (c) When the variance between the allegations of the pleading and tlie jjroof is not material, the fact that the plead- § 108 WETZLER'S OHIO TRIAL EVIDENCE 140 ing was not amended to conform to the proof will not consti- tute ground for the reversal of the judgment on error. Sibila V. Bahney, 34 0. S. 399. Insurance Co. v. Kelly, 24 0. S. 345. Benninger v. Hess, 41 0. S. 64, 68. Railway v. Bateman, 16 C. C. 162, 8 C. D. 220. Barnett v. Ward, 36 0. S. 107. 108. MATERIAL VARIANCE. (a) No variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually mis- led the adverse party to his i)rejudiee in maintaining his action or defense upon the merits. When it is alleged that a party has been so misled, that fact must be proved to the sat- isfaction of the court. It also must be shown in what respect he has been misled. Thereupon, the court may order the pleading to be amended upon such terms as are just. Section 11556. General Code. Railway v. Seefred, 19 C. C. (N.S.) 262. (b) Where the admission of evidence not in accordance with the pleadings is objected to, the court may allow an amendment to the pleadings ; but if the opposite party makes a showing that he has been taken by surprise, or will be pre- judiced by the amendment, he is entitled to time in which to make his pleadings and prepare for trial. Kniphts V. Everding. 20 C. C. 680, 11 C. D. 419. See also Barnett v. Ward, 36 0. S. 107, 112. (c) If the plaintiff offers evidence to support a ground of recovery substantially different from that set up in the peti- tion, and the same is objected to on that ground, proper prac- tice requires that such evidence shall be excluded until the plaintiff has amended his pleading and an issue is made up respecting the new matter in the amendment. nilsinger v. Trickett, 86 0. S. 286. '&^ (d) Where the evidence objected to will make a material variance, it is not error for the court to reject the evidence. The party whose evidence is excluded should apply for leave 141 ISSUE AND VARIANCE § 109 to amend: and this application had better be made, even when the adverse party would not be misled by the variance. Xetvburg v. Mimshower, 29 0. S. 617. Hiisinger v. Trickett, 86 0. S. 2S6. Hill V. Supervisors, 10 0. S. 621. (e) Even if tbe evidence is admitted without objection, it is safer to amend, for the trial-court may confine the jury to the issue as made by the i)leadinfi:s. However, this is not the rule when the variance is slight or immaterial. ^rchurin v. Stone, 37 0. S. 49, 58. IJanta v. Martin, 38 0. S. 534. Todd V. Pub'g. Co., 9 C. C. (X.S'.) 249, 19 C. D. 155. Osseforth v. Traction Co., 9 N. P. (N.S.) 360, 20 0. D. 285. Ely V. Borck, 7 0. App. 49, 27 0. C. A. 39S, 29 C. D. 277. (f) "While it may be necessary for the record to show an amendment to a petition which is wanting in a material aver- ment, in order to support a verdict thereon, when the record consists solely of pleadings, rulings thereon, record of the fact of a trial, verdict and judgment : yet, where there is a bill of exceptions showing all the evidence and proceednigs, such amendment as a general rule is unnecessary where the evi- dence and proceedings sustain the verdict; in such case au amendment will be implied on error. Railway v. Tehan, 16 C. D. 457, 4 C. C. (N.S.) 145. 109. TIME FOR OBJECTION. (a) Evidence that will make a material variance should be objected to by the adverse party when it is offered, or at least before the close of the evidence ; and if no such objection is made, the exception can not be saved by asking the court to charge the jury that they can not consider such evidence. Chamberlain v. Railroad, 15 0. S. 225, 250. Horning v. Poy.-r, 6 C. I). 370, 18 C. C. 732. Circleville v. Sohn, 11 C. D. 193, 20 C. C. 368. (b) An objection on the ground of variance between the proof and the pleading should be taken on the trial. Where this has not been done, it is too late on error to make the ob- jection. For M'hen a party suffers evidence to go to the jury- without objection, it would be manifestly unjust to the ad- § no iv:etzler'S ohio trial evidence 142 verse party to reverse the judgnieiit on account of the vari- ance, even though no amendment was asked or made. Spoer V. Bishop, 24 0. S. 508. lIofTman v. Gordon, 15 0. S. 211, 218. Scheinesohn v. Lemonek, 84 0. S. 424, 431. (c) When immaterial evidence has been admitted in be- half of one party without objection, similar evidence then becomes admissible on the part of the adverse party. And where plaintiff is allowed against objection to introduce evi- dence on the subject of negligence on the theory that his })etition makes a case of negligence, he should not be heard to object to the evidence of defendant in rebuttal, even if on a proper construction of the pleadings, such issue is not made. McLaughlin v. State, 20 C. C. (X.S.) 492. Duvall V. Fuhrnian, 2 C. D. 174, 3 C. C. 305. Krause v. Morgan, 53 0. S. 26. ■o"^ (d) Where the plaintiff introduces evidence on a point not in issue without objection, and the defendant in rebuttal does the same without objection, and the court instructs the jury that the evidence should be considered in determining the issue, which is excepted to by the plaintiff, there is no preju- dicial error. Taylor v. Boggs, 20 0. S. 516. Cf. Todd V. Pub'g. Co., <) ('. ('. (\.S.) 240, 10 C. D. 155. 110. CONFORMING PLEADING TO PROOF. (a) The statute provides that before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, when the amendment does not substantially change the claim or defense, by conforming the pleading to the facts proved. Section 11363, General Code. Hazzard v. Wallace, 5 C. C. (N.S.) 653, 17 C. D. 147. See Hilsinger v. Trickett, 86 0. S. 286. (b) Where the original petition contained averments mak- ing a case of malicious prosecution, the plaintiff may be allowed to amend after the argument by striking out the 143 ISSUE AND VARIANCE §110 averment of ''want of probable cause," and alleging that sucli arrest was made "illegally and with force." Spice V. Steinruck, 14 0. S. 213. See Langrueter v. Iroquois Co., 10 X. P. (X.S.) 81, 20 O. D. 292. (c) When there is no averment in a case justifying puni- tive damages, but the facts of the case as shown by the evi- dence call for such damages, the trial-judge may charge the jury on the subject, and may, even after verdict, order that the petition be so amended as to conform to the facts proved. Jacob V. Canine, 7 0. App. 268. 27 0. C. A. 6.-5, 28 C. D. 110. (d) A petition may be amended to conform to the facts as found by the jury in special findings after the expiration of the three days within w'hich a motion for new trial may be filed. And a reviewing court will, in the absence of evidence to the contrary, assume that the court was justified by the evidence in permitting the amendment. Wicker v. Messinger, 22 C. C. 712, 12 C. D. 425. (e) But it is an abuse of discretion to grant leave after close of all the evidence to amend the petition so as to insert additional elements of damage to conform to the evidence admitted against objection. It is not error to let the evidence stand, if the charge confines recovery to the injuries specified in the original petition. Eaihvay v TTobart, 13 C. C. (X.S.) 502, 22 C. D. 1.'54. Cf. Railway v. Mills, 16 C. C. (X.S.) G2. (f) Where testimony not in accordance with the plead- ings is admitted without objection, the court may allow the pleadings to be amended to conform to the proof. Where parties choose to try their case U})on a supposed issue and the case is fairly tried, it is too late to urge in a court of error that the issue tried was not made by the pleadings. Knights V. Everding, 20 C. C. G89, 11 C. D. 410. Bacon v. Daniels, 37 0. S. 279, 281. Lariniore v. Wells, 29 0. S. 13, 17. Minzey v. T^farcy, 6 C. C. (X.S.) 593, 15 C. D. 593, .507. Accident Assn. v. Harrington, 10 C. C. (X.S.) 134, 20 C. D. 612. Bonebrake v. Columbus, 6 X. P. (X.S.) 41, 18 0. 1). 3()7. (g) Where a party cross-examines a witness as to facts not in issue, and the case is submitted to tlie jury without § 111 METZLER'S OHIO TRIAL EVIDENCE 144 objection, the court may after verdict permit an amendment to conform the petition to the facts proved under Section 11363 of the General Code. Barbour v. Miles, 7 C. D. 682, 14 C. C. 628. (h) An amendment of the petition to conform to the evi- dence is available only when the evidence is stronger than the petition. Where the petition is much stronger than the evi- dence, so that an amendment of the petition so as to conform to the evidence, would so weaken the petition that it would not be sufficient to sustain the judgment, there is a failure of proof. The facts proved must necessarily show a good cause of action. Karb v. State, 54 0. S. 383, 307. Ferguson v. Powd(^r Co., 6 C. D. 408, 9 C. C. 445. See Megrue v. Lennox, 50 0. S. 470. Cf. Brown v. Mfg. Co., 20 C. C. (X.S.) 401. 111. INSERTING ALLEGATIONS. (a) The statute provides that before or after judgment in furtherance of justice and on such terms as it deems proper, the court may amend any pleading by inserting other allega- tions material to the case. See Section 11363, C.eneral Coile. Bean v. Green, 33 0. S. 444, 453. Bates Pleading, pp. 459, 540. (b) The court may allow an amendment of the petition after verdict and before judgment is entered, even though the petition in its original form did not state a cause of action, when the evidence shows that a good petition could be filed. Stowo-Fuller Co. v. Doi-i"i-k. 20 C. C. (X.S.) ",<]. Frank v. Traction Co., 7 X. P. (X.S.) 143, IS 0. D. 791. Huntington v. Rogers, 0. S. 511, 517. Harper v. Dalzell. 27 Bull. 274, 11 0. D. R. 531. (c) An amendment to a petition does not state a new and different cause of action, where, in both the amended and the original petition the object sought is recovery of damages for the same personal injuries, and the variation is only as to the I)recise manner in vl^.i:-]! the injuries were inflicted. Brewing Co. v. Betz, 8 C. C. (X.S.) 64, IS C. D. 484. 145 ISSUE AND VARIANCE §113 112. DEFECT WAIVED. (a) A petition which omits or defectively states a material allegation is cured where evidence is admitted at the trial without objection to prove such alletration. and a verdict on an issue involving such allegation is returned. T?aihvaT v. Tohnn. 1(5 C. T). 457. 4 C. C. (X.S.) 145. . Middleton v. Westeny, 4 C. D. 650, 7 C. C. 39,^. (b) In an action against an administrator, the objection that the petition does not aver that the claim was presented for allowance, is waived where the defendant joins issue and goes to trial on the validity of the claim without objection. Pepper V. Pidwell. .^fi O. S. 454. (c) Where the plaintiff did not allege ownership or that the claim is due and unpaid, and the case was tried upon the theory that these allegations were made, and no demurrer Avas filed to the petition, the judgment Avill not be disturbed by a reviewing court for failure to make these allegations. Hnwe V. T^ailway. 10 C. D. 220, 18 C. C. 606. Brown v. Fiirr. 1!) C. C. (X.S.) 578, 25 C. D. 466. Davey v. Miller, 37 Bull. 203. (d) Although a petition in a personal injury case is faulty in not alleging that the defendant had knowledge of the defects in certain machinery which are alleged to have caused the injury, if, without objection, evidence is intro- duced on this subject and the case is tried as though the peti- tion contained the proper allegations, the defect in the petition is cured. r-hihcr V. nini<;, 19 C. C. fX.?.) 414. ' towe-Fuller Co. v. Dominick, 20 C. C. (N.R.) 556. ,'- pronk V. Steel Co., 10 C. D. 675, 19 C. C. 714. Cf. Ilenkel v. Stahl, 9 C. D. 397, IS C. C. 831. 113. OBJECTION BEFORE TRIAL — DEFECT NOT WAIVED. ^a") A party may properly object to the introduction of anv evidence to support a fatally defective pleading. To set out facts making only a part of a cause of action Avill not justify the admission of evidence to establish an entire or § 114 METZLER'S OHIO TRIAL EVIDENCE 146 good cause of action. And failure to demur does not forfeit the right. The objection, however, should be presented be- fore the introduction of any evidence. Radcliff V. Pvarlnliff. 15 C. C. 284, 8 C. D. 278. Toledo V. .Meiii.Tt. lo C. C. (X.S.) 545, 548. See Railroad v. Davider, 17 C. C. (N.S.) 470. (b) Objections to any evidence under the pleading, no objection having been made before, are not favored ; and the most liberal construction will be then adopted to sustain the pleading if possible. And the objection will not be sustained unless there is an entire omission of material facts or total failure to state a cause of action. Bates Pleading, p. 458. (c) An objection of this character does not operate as an objection to evidence thereafter received in support of an uncertain allegation which might have been made certain by motion, where tlie petition states a cause of action, even though it is inartistically drawn, Tuttlc V. Furi, 22 C. C. (X.S.) 388. (d) Objection to a counterclaim not connected with the subject of the action may be taken at the trial by objecting to the introduction of any evidence under it, even though no demurrer was filed to it. If no objection is raised to the evi- dence, the parties acquiesce in the judgment, and it will not be reversible. Williams v. Lederer, 18 C. C. (X.S.) 515, 517. 114. FAILURE OF PROOF. (a) When the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance, but a failure of proof. Section 11558, General Code. Dean v. Yates, 22 0. S. 388. Stone V. Sanders. IS C. C. (X.S.) 445. Railway v. Boswell, 7 C C. (X.S.) 413, 18 C. D. 694. Ilazzard v. Wallace. 5 C. C. (X.S.) 653, 17 C. D. 147. 147 ISSUE AND VARIANCE §114 (b) From the cases on failure of proof, the following? con- clusions are undoubtedly warranted: 1. Tt is error to admit over objection evidence substan- tially different from the allegations of the petition. Thatcher v. Heisy, 21 0. S. 668. Hilsinger v. Trickett. S6 0. S. 2S6. Harrison v. Spitz, 16 C. C. (X.S.) 493. 2. Such evidence should be excluded until the plaintiff has amended his petition and an issue is made up. Ililsinger v. Trickett, 86 0. S. 2^6. Hill V. Supervisors, 10 0. S. 621. Fuher v. Villwock, 14 C. C. 389, 6 C. D. 373. Cf. Ancin v. Ksenick, 17 C. C. (X.S.) 310. 3. When the evidence relates to a cause of action substan- tially different from the one pleaded, the petition may not be aided by the averments of the answer. nilsinfrer v. Trickett, 86 0. S. 286. Cf. Beetz v. Strobel, 6 0. D. 143, 4 X. P. ICG. 4. "WTiere the petition sets up one cause of action, and the evidence shows another, it is not an abuse of discretion to refuse leave to amend on any terms. And the dismissal of such petition will not be a bar to another action on a petition stating the facts correctly. Fuher V. Vilhvock. 14 C. C. 380, 6 C. T). 373. See Harrison v. Spitz, 16 C. C. (X.S.) 493. 5. If the amended petition sets up the same cause of action as the original petition, the statute ceased to run at the filing of the original petition. Kirchner v. Smith. 7 C. C. (X.S.) 22, IS C. D. 45. Ilailroad v. Gibson, 41 0. S. 145. G. But if the amended petition sets up a new cause of action already barred by the statute, its filing does not relate back to the original petition. Dflaware Co. v. .Andrews, IS O. S. 49. Hills V. Ludwig, 46 0. S. 373. See Bates Pleading, pp. 2045-2048. (c) AYherc an essential fact is in issue, the fact that it was assumed on one side and not denied by the otlici-. (luri;"jr the trial, does not take llic i)lace of pi-oof. pari iculai-Iy wli," •» §115 METZLER'S OHIO TRIAL EVIDENCE 148 the trial-judge directed attention to this defect in the proof by sustaining an objection to a question on the ground that such proof was lacking. Lieblang v. Railway. 4 C. C. (N.S.) Hlfi, 16 C. D. 30. 115. VARIANCE AS TO IMMATERIAL ALLEGATIONS. (a) The material allegations or those which could not be stricken out Avithout leaving the pleading insufficient, must be proved. The substance of the issue must be proved as alleged; and all immaterial averments may be disregarded. Gaines v. Tnsiiranop Co.. 2S 0. S. 418. Section 11330, General Code. Piatt V. Longworth, 27 0. S. 159, 200. (b) To constitute a variance between the allegations and the proofs, the difference must be as to the substantial ele- ments of the case, and not as to the legal conclusions from the facts drawn by the pleader. Piatt V. Longworth, 27 0. S. 159. (c) In an action on a verbal contract, where the petition specially alleges all the material ])rovisions thereof, and as grounds for a recovery avers breaches of them, it is only nec- essary to prove as alleged such of said allegations as will entitle the plaintiff to a recovery. A failure of proof or a variance not prejudicial to the defendant, as to other provi- sions of the contract not essential to a recovery is not such a variance as M'ill defeat the plaintiff's action. Gaines v. Insurance Co.. 28 0. S. 418. See also Nolte v. Hill, 36 0. S. 186, 189. (d) "WTiere, in an action for damages for breach of a Avarranty in the sale of chattel property, the petition also alleges that the defendant knew the warranty to be false, the plaintiff may, upon proof of the warranty and its breach, re- cover his damages, though he fails to prove the defendant's knowledge of the falsity of the warranty. Gartner v. Corwine, 57 0. S. 246. (o) Where an item of account on which suit is brought is rot proved on the trial to the full extent claimed in the peti- 149 ISSUE AND VARIANCE §116 tion, but the variance between the allegations and the proof is not such as to mislead the defendant in regard to the nature and character of the claim in controversy, such variance will not prevent a recovery, if the facts proved show a good cause of action. Ralston v. Kohl, 30 0. S. 92. (f) "Where one purchases property represented to be a certain size and extent, which representations prove to be un- true, such purchaser may have a recovery on a petition charg- ing actual fraud, although the representations may have been innocently made. Douglass V. Plotkin, 7 C. D. 159, 13 C. C. 461. See Reynolds v. Smitz, 9 C. D. 4S4, IS C. C. 84. (g) The fact that a petition sets forth acts which consti- tute negligent conduct and denominates them as wilful con- duct, and alleges that the injury of which plaintiff complains was intentionally committed, while the evidence shows that it was not committed intentionally but negligently, does nqt con- stitute such a variance between the pleading and proof as to be prejudicial to the defendant. Griffin v. Railway, 21 C. C. 547, 11 CD. 749. 116. RULE APPLIED TO ANSWERS. (a) It is a general rule that a defendant who makes a general denial must adduce evidence that disproves, or is in- consistent with the allegations of the petition. When the defendant relies on evidence of some fact occurring afterward, which avoids or discharges the cause of action alleged in the petition, such as payment or satisfaction, he will not be per- mitted to introduce his evidence under a general denial. In other words, an answer by way of denial raises an issue only on the facts stated in the petition ; if the defendant desires to introduce a new issue, he must plead the new matter. Hence, a defendant who can not truthfully deny the facts alleged in the petition, but is able to show new matter in avoidance, should set up the new matter on which he relies; otherwise his evidence will be excluded. Powers V. Armstrong, 36 0. S. 357. Piatt V. Schribner, 18 C. C. 452, 9 C. D. 771. Hauaer v. Metzger, 1 C. S. C. R. 164. §117 METZLER'S OHIO TRIAL EVIDENCE 150 (b) However, when a defense in order to be available should be pleaded in the answer but this is not done, and evi- dence is introduced on the subject without objection and sub- mitted to the jury, the absence of such defense from the answer is immaterial. Eihlert v. Gommoll, 13 C. D. 586, 3 C. C. (N".S.) 345. Penn. Co. v. Yoder, 15 C. D. 32, 1 C. C. (N.S.) 283. Harris v. Wallace Co., 84 0. S. 104, 108. (c) And where the trial is conducted as if the answer con- tained a general denial, the court may allow the defendant to amend under Section 11363 of the General Code, after trial by inserting a general denial if justice requires it. Hodges V. Taft, IG C. C. (X.S.) 1, 25 C. D. 27. (d) "Where a case is tried upon the theory that the an- swer presents an issue which in reality is averred as a mere conclusion of law, a court will consider the pleadings as pre- senting that issue, and allow amendments according to the proof. Schnitzer v. Cole, 16 C. D. 387, 4 C. C. (X.S.) 319. Cf. Pelton V. Bemis, 44 0. S. 51, 58. (e) Where an answer fails from a technical point of view to set up novation, but the case was tried on that theory, and there was evidence supporting such a theory, it is not revers- ible error for the court in its charge to the jury to construe the answer as setting up such a defense. Jarmuscli v. Steel Co., 3 C. C. (N.S.) 1, 13 C. D. 122. 117. RULE APPLIED TO REPLIES. (a) As the reply to new matter in the answer may contain new matter not inconsistent with the petition, such new mat- ter is not admissible under a mere denial. So if an answer sets up new matter, and the plaintiff relies on a former adju dieation thereof, his reply must plead the former judgment. It is not admissible under a denial. Fanning v. Insurance Co., 37 O. S. 344. (b) If no reply is filed to an answer of new matter con- stituting a defense, but the cause is tried without objection as though such allegations had been denied, a demand for judg- 151 ISSUE AND VARIANCE §117 ment on the pleadings after each party has introduced his evidence is too late. Lovell V. Wentworth, 39 0. S. 614. Moorman v. Fox, 9 0. D. 63S, 7 X. P. 45. Hudson V. Voight, 9 C. D. 35, 15 C. C. 391. (c) Where the defense is not denied by the reply, and the case proceeds as if it were denied, and without objection until the question is raised in the supreme court, the judgment will not be reversed because there was no denial in the reply. Woodward v. Sloan, 27 0. S. 592. Van Camp v. Chenot, 20 C. C. 708, 10 C. D. 819. (d) Failure to file a reply to an allegation of contributory negligence pleaded in the answer does not entitle the defend- ant to a judgment on the pleadings, Avhen his demand therefor was not made until after both parties had submitted their evidence, and the case had been tried as though the allegation of new matter in the answer had been denied. Traction Co. v. Dorenkemper, 13 C. C. (N.S.) 97, 22 C. D. 239. Gas Co. V. Johnston, 76 0. S. 119, 123. (e) It is not reversible error to permit the filing of a reply when testimony in rebuttal is being introduced, where the case has been tried without objection as if reply had been filed before the trial. Railway v. McKelvey, 5 C. D. 561, 12 C. C. 426. (f) But where an answer of new matter sets up a good defense and no reply is filed thereto, it is error to permit plaintiff against objection to prove that the allegations of such defense are untrue where the defendant has not opened the door by offering evidence. Maxwell v. Griftner, 11 C. C. 210, 5 C. D. 323. CHAPTER IX. RELEVANCY. lis. Direct and indirect evidence. 119. Evidence on one issue. 120. Order of evidence. 121. Legal relevancy — Outline. 122. Genuineness of document. 123. Introducing a fact. 124. Explaining a fact. 125. Supporting an inference. 126. Rebutting an inference. 127. Proving identity. 128. Preparation and subsequent conduct. 129. Subsequent repairs. 130. Remoteness. 131. Similar occurrences. 132. Other fires. 133. Other offenses. 134. Financial ability. 135. Custom or habit. 118. DIRECT AND INDIRECT EVIDENCE. (a) Best, in his work on the ''Law of Evidence," stated in substance, that when the truth in regard to a question of alleged fact can not be ascertained by means of inspection, as when there is presented to the senses a visible object, there are but two ways of arriving at the truth: (1) by evidence, affirma- tive or negative, of the alleged fact itself; and (2) by evi- dence of facts collateral to such alleged fact, but so related to it that the truth may be reasonably inferred. Such collateral facts are evidential facts ; the fact sought to be proved is the ultimate fact. (b) Then all evidence, except that obtained by inspection, is in its nature either direct or indirect. Evidence is direct when the alleged ultimate fact itself is affirmed or contro- verted. Evidence is indirect, or circumstantial, when there is adduced evidence of facts collateral to the ultimate fact, but 152 153 RELEVANCY §118 SO related thereto as to tend by inference to establish or dis- prove it. The first test of the admissibility of indirect evidence is that the evidential facts must be probative of, or logically relevant to, some fact in issue. See T?rpwiTi£r Co. v. Banor. HO 0. R. 560. Wilson V. Barkalow, 11 ( ». S. 470. 474. Bill V. Brewster, 44 O. S. fiDO. 6!)7. (c) In adducing either direct or indirect evidence, the facts proved are attested in the same manner; and with one kind as well as the other, belief rests upon our faith in human veracity. The principal distinction is that direct evidence proves or disproves the ultimate fact if the evidence itself is true; Avhereas, circumstantial evidence, though true, does not of itself establish or disprove the ultimate fact, but affords only an inference of its existence or non-existence. See Cal. Code of Civ. Proc Sec?. 1831 and 1R32. (d) The collateral facts adduced may or maj^ not satis- factorily prove the ultimate fact. As to the conclusion, opin- ion will be divided when more than one inference may be drawn. But when every inference points to the truth of the ultimate fact, and no collateral fact can be explained on any other supposition, the proof will be satisfactory — indeed, al- most conclusive. Indirect evidence, then, proves the ultimate fact when it excludes every other possible inference; and the nearer such evidence approaches this degree of conclusiveness, the more satisfactory is the proof. (e) Circumstantial evidence is often the most convincing. It is difficult to fabricate the connected links in a chain of circumstances so as to preserve the semblance of truth ; but it is very easy, where perjury is intended, to fabricate positive facts. When the circumstances detailed are real and natural, they Avill correspond with each other; when they are incon- sistent with each other or irreconcilable Avith admitted facts, there results a plain and almost certain inference that artifice has been resorted to, and that the tale is not true. State V. Turner, Wright 20. 28. (f) It can hardly be deemed necessary to go into any course of reasoning to prove that circumstantial evidence is §118 METZLER'S OHIO TRIAL EVIDENCE 154 allowed to prevail, even to the convicting of an offender. It is essential to the well-being, if not to the very existence, of civil society that it should be understood that the secrecy with which crimes are committed will not insure impunity to the offender. Such evidence is allowable because it is, in its own nature, capable of producing the highest degree of moral cer- tainty. Crimes of any magnitude are rarely committed with- out affording vestiges by which the offender may be traced; and very often the means he adopts for his security turn out to be the most cogent arguments of his guilt. Hess V. State, 5 0. S. 5, 9. (g) However, where a criminal charge is to be proved by circumstantial evidence, the evidence ought to be not only consistent with the prisoner's guilt, but inconsistent with any other rational conclusion. A careful judge will always in- struct the jury that where the circumstances are reconcilable upon the theory of the innocence of the accused, they are bound to so treat them ; and that it is only when the facts and circumstances are irreconcilable Avith his innocence that he can be convicted. In instructing the jury and in defining circumstantial evidence, it is not error for the trial-judge to use illustrations drawn from common experience or based Upon familiar events in every-day life. Fastbinder v. State, 42 0. S. 341, 345. Moore v. State, 2 O. S. 500, 507. Murray v. State, 23 C. C. (X.S.) 508. (h) Under proper instructions juries are allowed in civil cases to act upon probable and inferential, as well as direct and positive evidence ; they may look to all the facts and cir- cumstances of the case, so as to enable them to make the most probable estimate which the nature of the case will permit. A wide range of inquiry is usually permitted where the issues relate to subjects which must be largely determined upon cir- cumstantial evidence, such as fraud. Burckhardt v. Burckliardt, 42 0. S. 474. 400. Koch V. Meyers, 7 O. App. 306. 20 O. C. A. 142, 30 C. D. 430. (i) When circumstantial evidence is relied upon to prove a fact, the circumstances most be proved and not be inferred. The law requires that the circumstances sliall be proved by 155 RELEVANCY S 119 direct evidence; it ioi-bids the building of inference upon inference. One inference can not be drawn from another inference. Farrer v. Rtato. 2 0. R. 54, 72. Feiiger v. Fenger, 7 Bull. :5()4, 8 0. D. R. 407. Barr v. Cliapinan, 30 Bull. 264, 11 0. D. R. 862. (j) Adultery may be inferred from occupancy of the same room at night. But a couple coming from a house early in the liiorning, and asking the Avitness to say nothing, does not raise the inference that they had stayed in the same room so that adultery could be presumed : for presumptions of fact from other presumptions of fact are not allowed. Fenger v. Fenger, 7 Rull. 304, 8 0. D. "R. 407. 119. EVIDENCE ON ONE ISSUE. (a) It is no objection to a particular item of evidence, that, unsustained by other proof, it is insufficient to entitle a party to recover. If it has a tendency to support the issue, it is relevant. It is not essential to the admissibility of evidence that it prove the entire issue. Watson V. Brown. 14. Oli. 473. 470. Hummel v. State, 17 0. S. 028. Meek v. Pemi. Co., 38 O. S. 632. (b) There is no rule of evidence which requires that what is offered should be relevant to every issue in the case, it may be relevant to one, and irrelevant to another. If admissible for any purpose, it should be allowed to go to the jury under proper instructions. Brewing Co. v. Bauer, 50 O. S. .'SfiO. .'i64. Penn. Co. v. Mahoney, 22 C. C. 460, 12 C. D. 366. State V. Davis, 00 0. S. 100. (c) It is not necessary that evidence offered be directly relevant to the principal issue made by the pleadings. The rule of relevancy is satisfied if the evidence is relevant to the incidental issues made by the proof. It is sometimes objected that this i)res('nts new and collateral issues of which the ad- verse party has no notice. In a certain sense every item of evidence material 1o the main issue introduces a new issue; '^ 120 WETZLER-S OHIO TRIAL EVIDENCE 156 that is, it calls for a reply. In no other sense does it make a new issue. Brewing Co. v. Bauer, 50 0. S. 560, 567. (d) It is probably the general experience in our trial- courts that at the opening of the trial the parties are confined rather strictly to the issues of fact made by the pleadings; but that as the trial proceeds, other issues arise upon the evi- dence which are sometimes called questions of fact to distin- guish them from the issues of fact made by the pleadings. During the closing stages of the trial, the evidence is often very largely directed to such questions of fact. 12G. ORDER OF EVIDEMCE. (a) Evidence relating to different points of fact may be so blended in the same transaction as to authorize giving it in mass. It is not essential that the facts to be proved should be introduced in any given order; but the party before the close of his case must be prepared to show each link in the chain of his evidence. Allen V. Parish, .3 Oli. 107. Carroll v. Olmstead, 16 Oh. 251, 7. Moran v. State, 11 C. C. 464, 5 C. D. 234. (b) In Ohio, the practice is to permit a party to intro- duce all the evidence he can produce that is pertinent to the issue on trial. The order of its introduction is determined by the court in the exercise of a sound discretion. Courts do not generally interfere with the order, but leave the counsel man- aging a cause pursue their own order in its production. Shahan v. Swan, 48 0. S. 25, 33. Limerick v. State, 14 C. C. 207, 7 C. D. 664. Wilson V. Barkalow, 11 0. S. 470, 3. (c) In proving a lost deed, the natural order is to prove the execution and loss before proving its contents. But it is often impossible to observe such a rule ; for the evidence on two or more points may be so blended in the same transaction as to be inseparable. It may then be offered in r-iass. Allen V. Parish, 3 Oh. 107, 8. 157 RELEVANCY § 120 (d) Upon the trial of an action to enforce the specific performance of a parol contract to convey land, or an interest therein, it is not error to admit parol evidence of the terms of the contract before proof of its part performance has been made. Shahan v. Swan, 4S 0. S. 25. (e) In the trial of a bastardy case, failure to read, before complainant rests, the transcript of the evidence given by the complainant before the magistrate, does not constitute pre- judicial error where the reading of the transcript occurred before the defendant was placed on the witness-stand. Campbell v. State, l.j C. C. (N.S.) 574, 26 C. D. 171. (f) However, evidence offered out of order is sometimes excluded. "Where a condition precedent to the right of incor- poration is prescribed by law, it is not error to reject as evi- dencethe certificate of incorporation in form as prescribed by the statute, when the issue is nul tiel corporation and there is no evidence tending to shoAV that the condition had been fulfilled. Navigation Co. v. Eagle, 29 0. S. 238, (g) As a general rule, the corpus delicti must be proved before any evidence is offered as to the guilt of the accused. But in a prosecution for arson a judgment of guilty will not be reversed because of failure to establish the corpus delicti before evidence tending to incriminate the defendant was introduced, where the burning of the property was not dis- 1 ■'-'>''', and the same evidence that established criminal agency ; 'so bore upon the question of the guilt of the accused. State V. Pereles, 12 0. D. 642. Kohn V. State, 14 C. C. (X.S.) 31, 23 C. D. 417. (h) Where the corpus delicti in bribery can not be directly established, except by gradual building up by proof of a gen- eral conspiracy tending to establish it. the court may permit such proof of the conspiracy in the order of its alleged steps as tending to prove the corpus delicti. State V. Rhodes, 15 X. P. fX.S.) 117. §122 METZLER'S OHIO TRIAL EVIDENCE 158 (i) Sometimes evidence is admitted on the promise of a party to show its connection later. But the rule should be limited to cases where the objection to the evidence relates merely to its relevancy to the issue, and not extended to cases where the objection is its legal incompetency to prove the fact, such as an objection to a hearsay statement. In the one case there is a fact proved which subsequent developments may show to be relevant to the issue; but in the other, there has been no legal proof of the fact itself, and when made relevant, it would still be incompetent. Wilson V. Barkalow, 11 0. P. 470, 3. Limerick v. State, 14 C. C. 207, 7 C. D. 664, 7. 121. LEGAL RELEVANCY— OUTLINE. (a) All relevant facts which are not excluded by any rule are admissible for any of the following purposes in so far as they aid in determining the issues: (1) To show that any document is genuine or otherwise. (2) To introduce or explain a fact in issue or relevant thereto. (3) To support an inference suggested by any such fact. (4) To rebut an inference suggested by any such fact. (5) To prove or disprove the identity of a person when in issue or relevant thereto. See Stephen's Digest of Evidence, Art. 9. 122. GENUINENESS OF DOCUMENT. (a) In a criminal prosecution for forging a will, the truth or falsity of matters recited therein may be shown as bearing upon the question of the genuineness of the instrument. And where these recitals are of the feelings of the claimed testate, her acts and declarations occurring shortly before and after the date of the alleged forgery may be introduced to show that her feelings were not those recited in the alleged will. Corbett v. State, 3 C. D. 7P, 5 C. C. 155. Cf. Breck v. State, 2 C. D. 477. 4 C. C. 160. Gurlev v. Armentraut, 6 C. C. (X.S.) 156, 17 C. D. 199. 159 RELEVANCY § 124 123. INTRODUCING A FACT. (a) In an action against a railroad company for the value of property destroyed by fire, not only questions leading up to show that such property had a market value are competent, but also questions which show what that value is. Railway v. McKelvey, 12 C. C. 426, 5 C. D. 561. (b) In an action to determine the validity of a contract between two telephone companies, evidence of the condition of the telephone business within the field in which the com- panies were operating is admissible for the purpose of shoAV- ing the tendency and effect of the agreement. Telephone Co. v. Telephone Co., 7 N. P. (N.S.) 425, 19 O. D. 202. (c) On trial for injury by a defective bridge giving way, the history of its prior repair and the ordinary construction of such bridges is admissible. Railway Co. v. Ellis, 6 C. D. 304, 13 C. C. 704. 124. EXPLAINING A FACT. (a) On the trial of an indictment for assault with intent to commit a rape, evidence of the manner in which the woman was conducting herself, her physical condition as to injuries and the condition of her wearing apparel when found shortly after the alleged commission of the offense, is admissible. Hornbeck v. State. 35 O. R. 277. (b) In an action against a decedent's estate to recover for the value of services rendered under employment as house- keeper for the deceased in his lifetime, it was held competent for the plaintiff to show the condition of the house and prem- ises where she rendered her services during her employment for the purpose of aiding the jury in determining the value of such services. Berrv v. Collins, C. C. 656. 6 C. 11. 507. Cf. Shailcr V. Corcoran, 11 C. D. 590, 21 C. C. 630. (c) Where a letter of a vendor contained a statement that the commodity sold was not merchantable, whicli statement was corrected in a subse(|uent letter, also properly in evidence, it was held that the reception of evidence offered by the seller § 125 METZLER'S OHIO TRIAL EVIDENCE 160 to show on what information the first letter was written af- forded no ground for reversal of the judgment, Cullen V. Bimm, 37 0. S. 236. (d) Where defendant, on cross-examination of plaintiff's witness, shows the general nature of the business in which he is engaged, it is competent for plaintiff, on re-examination to inquire into the particulars of his business so far as it reflects upon the issues. Bean v. Green, 33 0. S. 444. 125. SUPPORTING AN INFERENCE. (a) It is competent to prove that a dog had acquired a habit of attacking sheep in support of a disputed allegation that he attacked and injured sheep on a particular occasion. Rumbaugh v. McCormick, 80 0. S. 211, 217. Cf. Hartman v. Railway, 7 0. App. 296, 28 0. C. A. 119, 30 C. D. 20. (b) In an action to recover for injuries by collision with a train at a crossing, where the evidence tends to show that plaintiff did not exercise proper care, it is competent for him to show that there was no signboard, in order to support his contention that he used due care, even though the want of such signboard is not alleged as a ground of recovery. Railroad v. Whitacre, 35 0. S. 627. (c) Where a contract of guaranty is made on considera- tion to extend time, it is error to exclude the creditor's testi- mony that he made no demand until after the expiration of the extended time, as tending to prove that he agreed to and did extend the time. Paint Co. V. Swihart, 16 C. C. (N.S.) 16, 27 C. D. 283. (d) In an action for injuries to an infant employe, evi- dence that other factories employed children of the age of plaintiff is" competent for the defense, when plaintiff alleges that defendant was negligent in employing one of tender years; for it shows that defendant exercised the care ordi- narily exercised by others under the same conditions. Hoppe V. Parmalee, 11 CD. 24, 20 C. C. 303. 161 RELEVANCY § 126 (e) "Where the evidence is conflicting, whether S had agreed to give his sister T a home for life if she would act as his housekeeper, or only so long as they could agree, S may show as tending to support his claim, that T was of a dis- agreeable temper, and that none of her relatives could live with her, and that he kncAv these facts, Tompkins v. Starr. 41 O. S. .105. (f) In an action to recover the amount due on a contract for work, evidence of the value of such work is not admissible in chief. But when an issue arises upon the proofs different from that made by the pleadings, in which the only conten- tion is as to the price agreed upon, the plaintiff may prove that the work was worth more than he claimed the contract price to be, Allison V. Horning, 22 0. S. 138. Dickey v. Greenleaf, 3S 0. S. 593. Schmidt V. Turner, 5 C. C. (X.S.) 492, 17 C. D. 327. (g-) In a will contest, evidence of the faithfulness of a beneficiary to the testator is competent, because it has a bear- ing upon the question of the reasonableness of the will as executed, Moore v. Caldwell, 6 C. C. (N.S.) 4^4, 17 C. D. 449. Cf. Delfs V. Yeager, 16 C. C. (N.S.) 433. (h) When the defense of the accused is insanity, an adju- dication of insanity made four years before is admissible. And when the defense in a murder case is that the deceased took his own life, it may be shown that six years before he was melancholy and threatened to commit suicide. But in a will contest, where there is no evidence of testator's insanity, tiio insanity of testator's father can not be shown, Wheeler v. State, 34 0. S. 304. Blackburn v. State, 23 O. S. 146. Cf. Brewing Co. v. Opp, 9 C. D. 516, 17 C. C. 465. Whitney v. Both, 45 Bull. 374. 126. REBUTTING AN INFERENCE. (a) Evidence that it was the custom of a railroad com- pany to give warning of the approach of trains or engines at a point where employes were obliged to cross in attending to ■K/rjTT-zr k-r's t«i\i ttv ft §126 METZLER'G OHIO TRIAL EVIDENCE 162 their duties, is competent to rebut a possible inference of con- tributory negligence ; such custom might come to have the force of a rule of the company requiring such warning. Penn. Co. v. Mahoncy, 22 C. C. 469, 12 C. D. 366. (b) In an action by a subcontractor as payee of an order by the contractor on the owner, which it is claimed the owner accepted verbally, the owner may show that he only owed the contractor a lesser sum, for this tends to rebut consideration and disprove acceptance. Alberts v. Moller, 8 A. L. "R. 48S, 6 0. D. R. 864. (c) When the defendant undertakes to show that the insu- lator it is using is the best in the market, plaintiff may rebut such evidence by comparing the insulator used with others in use; and the opinion of an expert Avitness for the plaintiff that a particular make of insulator used by the defendant is not a safe one, is competent. Telephone Co. v. Jackson, 4 C. C. (X.S.) 386, 16 C. D. 89. (d) Undue influence by a son, to whom a large share of the estate was devised by his father, being charged, the plain- tiff may show that a former will had given this son a much smaller share. To rebut this, the son may show that before this his mother had made a will leaving him nothing, and that his father knew of this and presumably intended to repair the injustice. Varner v. Varner, 9 C. D. 273, 16 C. C. 386. (e) If a witness as to the value of land is asked on cross- examination as to particular sales in the vicinity at a very low figure, he may on redirect examination be asked if he knows as to other particular sales at a high figure. Eailway v. Sinning, 6 C. D. 753, 17 C. C. 649. (f) On the separate trial of one of two jointly indicted for burglary, the state may give evidence tending to show that the one not on trial was present and participated in the crime, and that the two were consorting and consulting before the crime. But if such evidence is given, the accused has the right to show that such other could not have participated, as by showing an alibi as to him. Davis V. Ptatp, 19 O. R. 217. ]63 RELEVANCY §126 (g) Where the defendant's machine is viewed by the jury and fonnd in order, and the defendant's evidence is that it has not been changed or repaired since the injury, the plain- tiff may show in rebuttal that it was defective at a date long after the injury. Barbour v. ^filps, 7 C. T). 6S2. 14 C. C. 62fi. (h) Where evidence is given showing that the deceased was conscious for a while after the shot was fired, the state may show in rebuttal that the wound would cause immediate unconsciousness, though evidence to the same effect wn^^ C. T^. 1.^0. (g-) The accused may prove an alibi ; that is, show that he was elsewhere when the crime was committed. But the de- fendant's attempt to prove an alibi in a criminal case is no admission of the body of the crime charged ; nor does his failure to prove the alibi necessarily afford any presumption that he Avas present at the time and place, when and where the crime is alleged to have been committed. r.iirn.s V. Ptate. 75 O. S. 407. Toler V. State, IG 0. S. 583. (h) In a libel case, if the publication is ambiguous as to Avho is intended, a witness who knows the parties and circum- stances may give his opinion as to who is meant. And when defendant claims that plaintiff was guilt}' of provocation by a prior publication, the defendant has a right to ask what per- sons made the publication ; and an answer that plaintiff was not one of them is not proper. The persons should be named, as an answer might enable defendant to connect plaintiff therewith. McLaufrlilin v. Eussell, 17 0!i. 475. DeCamp v. Archibald, 50 O. S. CIS, 620. 128. PREPARATION AND GUCSECUE>:T COXD'CCT. (a) When there is a question whether any act was done by any person, the following facts are deemed to be relevant : Any fact which constitutes preparation for it, or- any subse- quent conduct of such jjcrson apparently inHuenced by the §128 METZLER'S OHIO TRIAL EVIDENCE 166 doing of the act, and any act done in consequence of it by or by the authority of that person. Stephen's Dicrest, Art. 7. (b) In criminal cases, it is competent for the state to prove conduct, and statements of the accused which he would not probably have made if innocent, and which, therefore, have a tendency to give rise to the inference that he had a guilty connection therewith. Grillo V. State, 9 C. C. 394, 6 C. D. 90, 92. Moore v. State, 2 O. S. 500. (c) If the circumstances manifest an extraordinary state of mind or the presence of uncommon ideas in such a manner as probably relate to the consciousness of guilt, or where they are such a part of the history or conduct of the accused as may connect itself with the subject, or become important in connection with other facts and circumstances, they are proper matters of evidence. ]\roore V. state, 2 0. S. 500. (d) In a murder case it is competent for the defendant to prove that the deceased and others had agreed to go to the house where the defendant boarded, for the purpose of quar- reling with him, and that they had approached him with that intent at the time the affray commenced which resulted in the homicide ; and to prove the conversation of the parties, in relation to such agreement, though the defendant had not been informed of the intent of the parties in approaching him. Stewart v. State, 19 Oh. 302. Cf. Waltha v. State, U C. C. (X.S.) 145. (e) On a trial for murder, it is competent for the state to prove that the defendant made threats against the property of a person other than the deceased, where the evidence shows that such property was then in the possession of the deceased, and shortly after the murder was found in the possession of the defendant. Mimms v. State, 16 0. S. 221 (see pages 230-231). (f) The defendant being charged with killing a woman by strangling, it is proper to show that after the killing and be- fore the body was found, he described how he could kill a 167 RELEVANCY § 128 person by strangling. This kind of evidence is admissible as a part of defendant's conduct -svhich shows the workings of his mind. That it might have been produced by thought of the homicide and consciousness of guilt, is suflScient to admit it as evidence. Moore v. State, 2 0. S. 500. (g) It is competent for the state to prove that the defend- ant fled from the place where the crime was committed soon after its commission or discovery ; and also w^hat took place in his capture, as that he resisted arrest. Grille V. State, 9 C. C. 394, 6 C. D. 90. Zeltner v. State, 13 C. C. (N.S.) 417, 22 C. D. 102. (h) Testimony is competent which tends to show that a party has been guilty of using money designed for an im- proper purpose in connection with the trial ; and it is discre- tionary with the court, in furtherance of justice, to admit such evidence at any stage of the trial. Berry v. State, 31 0. S. 219, 230. Cf. Townsend v. State, 23 C. D. 40S, 17 C. C. (X.S.) 380, 385. (i) Evidence that a person charged with receiving stolen goods made an attempt by an offer of money, to dissuade an officer from searching the premises where the property was concealed, may be competent as tending to show that the accused was guilty ; but it alone is not sufficient to constitute the offense. Vanimmons v. State, 22 C. C. 451, 12 C. D. 345. (j) Where a party is indicted for the forgery of a note, evidence that the defendant after being charged with the forgery, voluntarily and without consideration released a judgment he had taken on the note, is competent on the ques- tion of his guilt, Burdge v. State, 53 0. S. 512. (k) Indirect evidence that tends to show a conspiracy on the part of the defendant and others to fabricate a defense to an indictment for bribery is competent in chief. The fact that such evidence is of a circumstantial nature and not direct does §129 METZLER'S OHIO TRIAL EVIDENCE 168 not render it incompetent, v.liere it otherwise conforms to the established rules of evidence in cases of conspiracy. State V. Huffman, 86 0. S. 220. (1) In a prosecution for rape, evidence that the defend- ant's brother made offers to compound the crime is not com- petent on the part of the state, unless in connection with evidence of authority to make the offer, or of some knowledge thereof by the defendant. Pratt V. State, 19 0. S. 277. (m) If, after the commission of an offense, threats are made by the defendant against the prosecuting attorney, evi- dence of such alleged threats are not admissible, unless it appears that thev are of such character as to manifest a con- sciousness of guilt. Gawn V. State, 13 C. C. 116, 7 C. D. 19. 129. SUBSEQUENT REPAIRS. (a) Subsequent repairs and alterations by the defendant to prevent recurrence of similar injuries are not admissions of negligence and are incompetent evidence to show such fact. Cleveland Co. v. Limmermaier, 8 C. C. 701, 4 C. D. 240. Cf. Railway v. Godwin, 12 C. D. 537. Lebanon v. Schwartz, 4 0. App. 173, 25 C. C. (X.S.) 273. (b) The evidence is incompetent because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, and has no legiti- mate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a pre- judice ? gainst the defendant. Cleveland Co. v. Limmermaier, 8 C. C. 701, 4 C. D. 240, 241. (c) In an action for personal injuries received in a wreck caused by a stone which was jarred from a flat car wuthout standards to prevent the stone from falling off, the admission of evidence of repairs to or changes in cars made after the accident is incompetent, and if admitted constitutes prejudi- cial error. Railway v. Beard, 11 C. D. 406, 20 C. C. 681. 169 RELEVANCY § 129 (d) Evidence showing that the defendant immediately after an accident made a repair of the defective sidewalk where the accident occurred, is not competent testimony to show that the defendant knew, prior to the accident, that the defect existed. Root V. Monroeville, 4 C. D. 53. 16 C. C. 617. (e) But when a witness for the defendant testifies that shortly after the accident he examined the walk and fouiul it in good repair, he may be asked on cross-examination v, hether or not some days after the accident he repaired the walk. Bond Hill v. Atkinson, 16 C. C. 470, C. D. 1S.5. (f) And evidence that defendant soon after the injury to plaintiff repaired the safety api)liance which was alleged to have been the cause of the accident, is competent as tending to prove an admission by the defendant that it was his duty to maintain the appliance. Ashtabula v. Hartram, ,3 C. C. 640, 2 C. D. 372. Cf. Lebanon v. Schwartz, 4 0. App. 173, 2.^) C. C. (N.S.) 273. (g) Evidence of a change in order to be competent must relate to a period within a reasonable time. And the question as to just what is a reasonable time is one for the judge, and must be determined before the jury will be entitled to con- sider such evidence. Tvailway v. Godwin, 12 C. D. 537. (h) Evidence that the defendant made certain changes shortly after an accident is competent where the only pur- pose of the questions asked is to ascertain the condition or situatioi: of things at the time of the alleged accident, that is, whether the appliance was safe or dangerous. Telephone Co. v. .Tackson. 16 r, J). 89, 4 C. C. (KS.) 386. Railway v. Codwin, 12 C. D. 537. Iron &. Steel Co. v. Wir-and, 15 C. C. (N.S.) 417, 24 C. D. 556. Lebanon v. Schwartz, 4 O. App. 173, 25 C. C. (X.S.) 273. (i) Testimony tending to show the defective condition of a machine several months after an accident is inadmissible, when it is not shown that it was in substantially the same condition then as when the accident occurred. Henkel v. Stahl, IS C. C 831, ft C. D. 397. Railway v. Godwin, 12 C. D. 537. §130 METZLER'S OHIO TRIAL EVIDENCE 170 130. REMOTENESS. (a) If the evidential fact tends to prove a fact in issue, the evidence is relevant ; and it is admissible if not excluded by some other rule. In other words, no irrelevant fact is admissible ; but every relevant or probative fact is admissible unless excluded by some other rule of evidence. (b) The spirit of the law of evidence permits a resort to every reasonable source of information upon a disputed ques- tion of fact arising in a ease. Unless excluded by some posi- tive exception, everything relative [relevant] to the issue is regarded as admissible ; and this is extended to every hypo- thesis pertinent to the issue. Bell V. "Brewster, 44 0. S. 690, 697. (c) However, there are some positive exceptions. The rule confining evidence to the point in issue excludes all evi- dence of collateral facts which are incapable of affording any reasonable inference as to the principal matter or fact in dispute. The evidential fact must not be too remote. This is the first rule of exclusion. Brewing Co. v. Bauer, .^O 0. S. 560, 564. (d) Facts entirely collateral to the issue are not admis- sible in evidence. The reason for this rule is that such evi- dence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it. Knight V. State. 54 0. S. 365. .379. Insurance Co. v. Tohin, 32 O. S. 77, 90. McDermott v. State, 13 0. S. 332, 335. (e) Where the circumstances are so remote, or where it is apparent for other reasons that they can cast no light on the subject, the court must reject proof of them, although they consist of the conduct of the party himself. Moore v. State, 2 0. S. 500. 506. Selzer v. Coal Co., 12 C. D. 7S7. (f) Even for the purpose of corroborating the testimony of wntnesses, an inquiry into facts entirely collateral, leading 171 RELEVANCY §130 to a controversy over matters altogether foreign to the case before tlie court, can not be permitted. Henkle v. IMcChire, 32 0. S. 202. (g) Tn an action for damages for breach of contract, evi- dence as to probable future profits is incompetent to be given in chief by the plaintiff, as furnishing a basis for the assess- ment of the damages by the jury, because such evidence is uncertain and speculative in its nature and in a great degree conjectural. Rhodes v. Baird, 16 0. S. 573. (h) In an action to recover damages for personal injury, no recovery can be had for future pain and suffering except such as the evidence shows are reasonably certain to result from the injury. Evidence that pain and suffering "may" or "might" result is not competent. Evidence that such re- sults will probably follow is competent ; but to justify a re- covery therefor the jury must find from all the evidence that reasonable certainty of results exists, and the jury should be so charged. Railway v. Poland, 7 0. App. 3fi:. -27 0. C. A. 10,5, 28 C. D. 198. Pennsylvania Co. v. Files, Co 0. S. 403. (i) On the trial of an action by an administrator to re- cover for injuries which have proved fatal, it is not compe- tent to call witnesses to testify that the deceased was in the line of promotion when the injuries were received. It would introduce speculative considerations into the assessment of damages. nossc V. Railroad, 58 0. P. 167. (j) In an action for the benefit of husband and children for wrongfully causing the death of the wife and mother, evi- dence of his second marriage to one who rendered like serv- ices and contributed in like manner as the first wife to the support of the family and the accumulation of property, is not admissible in mitigation of damages. The rule is the same w^here the deceased was insured. Davis V. Giiarnieri, 45 O. S. 470. Cf. Brunk v. Railroad, 20 K. P. (N.R.) 360, 28 O. D. .320. (k) A declaration by the Avife of the accused to the wit- ness that she would send hor husband to the penitentiary if § 131 METZLER'S OHIO TRIAL EVIDENCE 172 others did not, is irrelevant ; the belief of the wife of the accused as to his guilt is immaterial. On the trial of issues joined by the plea of not guilty, it is error to admit evidence, tlie only effect of which is to show that others believe the accused guilty. Jones V. State, 54 0. S. 1. (1) In an action for damages for breach of a contract for the sale of real estate, it is error to admit evidence as to what the property brought when offered at public auction at a later date and upon different terms. The measure of damages in such a case is the difference between the contract price and the market price at the time of the breach. Eisenstadt v. Lucke, 25 C. C. (X.S.) 225. (in) In an action for damages for the breach of a contract for insurance which provides that the rate shall be the aver- age rate paid for a like risk by others in the same business in the same city, evidence by the officers of an inspection bureau as to the rate which it had placed upon the property is not competent to prove that the insurance tendered under the contract w^as at the rate provided therein. Prescott V. Koblitz, 25 C. C. (N.S.) 84. (n) The procurement of indemnity against loss from the enforcement of a threatened claim is not an admission of liability on such claim. Nor does the fact that an employer carries workmen's insu^nce tend to show a lack of care on his part. Such evidence is not admissible. Treuhaft v. Dambach, 16 C C. (N.S.) 526, 25 C. D. 570. Rupp V. Shaffer, 21 C. C. 643, 12 C. D. 154. (o) On examination of the matters which are ordinarily excluded as being too remote, it will be found that they occa- sionally become so involved in the issues of a case or the questions of fact raised by the evidence that they are ad- missible as evidence. Therefore, it is probably impossible to say of any matter that it is alw^ays excluded. 131. SIMILAR OCCURRENCES. (a) In an action to recover insurance on a boat lost by an unknown peril, the plaintiff can not in chief prove specific 173 RELEVANCY § 131 instances of the loss of other boats from unknown causes of leaking on the same waters. Such evidence would create col- lateral issues. Insurance Co. v. Tobin, 32 0. S. 77. (b) AVhere it was in issue whether barrels leaked because of defective material, bad inspection and poor workmanship, it was held irrelevant to prove that other barrels made by the same cooper during the same season, through the same process and out of timber cut from the same forest, were tight. Neither defects nor absence of defects in an article may be proved by showing defects or absence of defects in similar articles; and such evidence is inadmissible. Wymond Co. v, Thompson, 8 X. P. 347. 11 0. D. 487. Manufacturing Co. v. Maitland, 92 0. S. 201, 205. (c) On trial for injury to a locomotive engineer by a bridge giving way in a freshet, evidence that a liighway bridge not far away was ten feet lower than the track and yet was not injured by the freshet is irrelevant and tends to raise collateral issues. Railway v. Ellis, 13 C. C. 704, 6 C. D. 304. (d) In an action to recover for injuries received in a colli- sion at a railroad crossing, it is error to permit the plaintiff to prove that other persons had been injured by passing trains at the same crossing before the injury to plaintiff. And evi- dence tending to show that decedent was a careful man under such circumstances, or was guilty of negligence at the same crossing on previous occasions is incompetent ; but evidence that he was familiar with the crossing is competent. Railway v. GafTney, 9 C. C. 32, 6 C. D. 94, 7. RailwaV V. Parker, 9 C. C. (X.S.) 28, 19 C. D. 1. Penn. Co. v. Trainer, 12 C. C. CG, .5 C. D. .IIO. Railroad v. Van Horn, 21 C C. 337, 12 C. D. 106. Cf. Davider v. Railway, 20 C. C. (X.S.) 165. (e) It is conceded that when evidence of similar acci- dents is offered simply to illustrate a physical fact before or after the occurrence under investigation, nnd the conditions are the same, such evidence is admissible ; but when the pru- § 132 METZLER'S OHIO TRIAL EVIDENCE 174 dence of another person ■who had met ^vith a like accident would be much involved, such evidence is generally excluded. Eailway v. GafTney, 9 C. C. 32, 6 C. D. 04, 97. Cf. Brewing Co. v. Bauer, 50 O. S. 560. (f) When the issue raised is whether the car which caused the accident was being operated at a high and dangerous rate of speed, evidence that other cars were run at such rate of speed is not admissible. But it has been held that where there is a question as to the time in which the electric car which struck plaintiff could have been stopped, testimony is admissible to show the time within which other cars had been stopped. Furrer v. Railway, 7 0. App. 491, 27 0. C. A. 410, 30 C. D. 200. Cleve. Ry. v. Hunter, 10 C. C. (N.S.) 564, 12 C. D. 769. 132. OTHER FIRES. (a) In an action to recover for property destroyed by fire started by a passing locomotive, the proof is subject to con- siderable latitude. It is competent to show that the fire started in the grass along the track soon after the passage of a locomotive ; and that about that time and immediately after- ward, other fires occurred in that neighborhood. Railroad v. Kelly, 10 C. C. 322, 6 C. D. 555. Railway v. James, IS C. C. (N.S.) 210, 1 O. App. 335. (b) Unless the identification of the particular locomotive throwing the sparks is certain, witnesses are not confined in their testimony to any particular locomotive, but may show that the engines of the railroad company generally emitted sparks as they passed along about the time of the fire ; and the witness would not be confined to a day or two, but would be allowed to testify as to a reasonable time; and a month preceding the fire would not exceed the limit. Martz V. Railroad, 12 C. C. 144, 5 C. D. 451. Railroad v. Kelly, 10 C C. 322, 6 C. D. 555. (c) But it is error to permit evidence to go to the jury which tends to show that at different times and places engines of the company, other than the one which it is claimed com- municated the fire, emitted sparks which were carried long 175 RELEVANCY § 133 distances by the wind, such evidence being of too remote a character : and because of its remoteness it is incompetent and inadmissible. Penn-svlvania Co. v. "Rossman. 13 C. C. Ill, 7 C. D. 110. See Railroad v. Fredi'iihur, 2 C. I), lo, 3 C. C. 23. 133. OTHER OFFENSES. (a) It is the general rule that proof of one offense is not competent to jn-ove that the party committed another distinct and unrelated offense. Such facts are regarded as collateral. Knight V. state, 54 0. S. 365. 379. Stockwell V. State. 27 O. S. 503. See State v. Diekerson, 77 0. S. 34. (b) In a trial for homicide, evidence that the defendant on a former occasion attempted to shoot another person is not competent, and it is not error to exclude such evidence. Zeltner v. State, 13 C. C. (N".S.) 417, 22 C. T). 102. (c) On an indictment charging the prisoner with poison- ing A in December, it is error to permit evidence in chief to show that he poisoned B in August previous, where there was no intimation that the prisoner used the poison while ignorant of its character. Farrer v. State. 2 0. S. 54, 73. (d) "Where a member of a municipal department is charged with the violation of a rule of the department requiring mem- bers promptly to pay their debts, and the specification charges the failure to pay a certain claim, evidence that such member has failed to pay other debts is incompetent. State, ex rel., v. Hyman, 21 C. C. 1^7. 11 C. T>. 5.50. (e) In a trial for an illegal sale of intoxicating liquor, prior sales could not be shown by the state ; and the defend- ant should not be allowed to show that at other times he refused to sell or give away such liquor as a beverage to the same or other persons. State V. Lind.T. 7fi O. S. 463. (f) 0^^ t:!P trial of a criminal case, it is error to jiorjnit the state to jirove l;y cross-examination of a witness called by § 133 METZLER'S OHIO TRIAL EVIDENCE 176 tlie defendant, that the accused stands indicted for other offenses. Hamilton v. State, 34 0. S. 82. (g) But where a prisoner on trial for arson testified in answer to questions by his own counsel as to a number of other fires by himself, the door is opened to the state to show the fact of other fires in buildings occupied by him which he had not admitted or explained. Berman v. State, 23 C. D. 3S6, If, C. C. (X.S.) lOO. 111. (h) Where the defendant is charged with rape committed on November 20, and evidence to that effect is given at the trial, it is error to admit eviden^ce against the objection of the accused that he also committed rape on the same person on the 20th day of October of the same year. Snurr v. State. 4 C. C. 303, 2 C. D. 614. Rason v. State, 78 0. S. 449. (i) But in sexual crimes with consent, including incest, other and similar adulterous or licentious acts or conduct by the defendant toward the prosecutrix, whether prior or after the date charged, are, if not too remote, admissible for the purpose of showing the adulterous or incestuous disposition of the defendant, and the illicit and continuous sexual relations existing between them. State V. Eeineke, 80 0. S. 300. (j) Frequent acts of sexual intercourse between a teacher and his pupil at times other than that charged — even acts outside the county and after his term as teacher has expired --may be given in evidence to throw light on the relations of the parties, if the acts are continuous and consecutive with the act charged. Esley V. State, 10 C. C. (X.S.) 160, 10 C. D. .^,68. (li) Wliere defendant is charged with having carnally known a female person under sixteen with her consent, evi- dence of similar prior acts within the two months preceding the date charged, is admissible to shoAv their relation and intimacy, and as corroborative of her testimony as to the act charged. ToYd V. State, 81 0. S. 239. 177 RELEVANCY § 134 (1) But it Avas held in the same kind of a case that con- febbions or admissions of the accused of acts of sexual inter- course with the prosecutrix more than two years after the time of the alleged commission of the offense for which he is being tried, and after ])rosecutrix had attained the age of six- teen years, are not competent to be given in evidence against him as tending to prove the crime charged in the indictment. State V. Lawrence, 74 0. S. 38. 134. FINANCIAL ABILITY. (a) Financial ability of either party is generally inadmis- sible ; this is especially true in regard to plaintiff. In an action for causing death, evidence of the poverty of the widow and children of the decedent is incompetent. The fact that the home of the decedent was mortgaged is incompetent where offered in derogation of his earning capacity. Railroad v. Eernolds. 21 C. C. 402. 11 C. D. 701. railway v. Parker, 9 C. C. (X.S.) 2S, 10 C. D. 1. See Bowe v. Bowe, 5 C. C. (X.S.) 233, 16 C. D. 409. Galion v. Lauer, 55 0. S. 302. (b) But in an action where punitive damages may be alloAved, evidence of the defendant's pecuniary ability is ad- missible. And it has been held to be a general rule that it is not misconduct justifying a new trial for a jury, while delib- erating upon a case, to discuss the defendant's ability to pay the amount of its verdict. ITayner v. Cowden, 27 0. S. 292. Berry v. IMfg. Co., 18 X. P. (X.S.) 203, 20 O. D. 301. (c) In an action for libel or slander, the wealth of the defendant may be shown for the purpose of increasing the compensatory damages and as bearing upon exemplary or punitive damages. This evidence should be offered by plain- tiff in chief; but if this is not done, it is not error to allow cross-examination of defendant on the subject. Steen v. Friend, 20 C. C. 459. 11 CD. 235. Lamprecht v. Crane, 5 O. D. 753, 4 Bull. 1107. (d) In an action for assault and battery, evidence regard- ing the amount of property and wealth of the defendant as it bears upon his ability to respond in damages is admissible, § 135 METZLER'S OHIO TRIAL EVIDENCE ITS where the blow was struck with ill will or under circum- stances of insult. Hendricks v. Fowler, IG C. C. 600, 9 C. D. 200. (e) In a breach of promise case, the value of defendant's estate may be shown, not because the action is for punitive damages, but because the plaintiff's loss by the breach is greater in proportion. Stribley v. Welz, 8 C. C. 571, 4 C. D. 520. .Tiuvis V. -lolni^oii, 2 O. J). It. :?7-2. 2 W. L. ^^f. 3S9. Duvall V. Fuhrnian, 3 C. C. 30r>, 2 C. D. 174. (f) In an action to recover the value of professional serv- ices on a quantum meruit, evidence of the pecuniary condition of the defendant and that he was a very wealthy man. is not competent, at least unless it is shown that the usual price varies with the ability to pay. Saffin V. Thomas, 4 C. D. 43S, S C. C. 253. (g) Testimony that a son of the testator was heavily in debt at the time the will was executed is competent to show the purpose of the testator to protect the estate against cred- itors of the son by giving it all to his son's wife and their children. Kuester v. Yeoman, 14 C. T. (X.S.) 2fi4. 22 C. D. 476. Cf. Snyder v. Ream, Iddings, 16S. (h) On the question of whether a deed from father to son was an advancement or for a consideration still due, the rela- tion of the parties and the circumstances of the father are relevant. Harrison v. Castner, 11 0. R. 330. 346. (i) Evidence of the financial condition of a party is rel- evant when the question is whether he promised to pay a barred debt. The experience of men has shown that it is more probable that a man of ample means would do this, than one who M'as not financially able to do so. Dyer v. Isham. 4 C. C. 420, 2 C. D. 633. Contra, Devere v. State, 3 C. D. 240, 5 C. C. 500, 518. 135. CUSTOM OR HABIT. (a) Evidence of habit (of persons) is considered as too remote, when the habit is irregular. In the absence of some 179 RELEVANCY § 135 necessity for tlie introduction of such evidence to meet an exigenc3% it ^vill be rejected. But habit may involve invari- able regularity of action, which would nuike it somewhat like a fixed rule. In such eases it is admissible. Haitman v. "Railway. 7 0. App. 206, 28 O. C. A. 110. .^0 C. D. 20. Penn. Co. v. Mahoiiy. 22 C. V. 4(in, 12 C. D. 360. Ingersoll v. Herider, 12 Oh. .■)27. (b) Evidence that it was the custom of a railway con- ductor to give warning to the trainmen assisting him in the making up of a train in the yards, is admissible upon the (question whether, knowing the custom, the conductor exer- cised ordinary care ; and also upon the question whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence. Railway v. Botefuhr, 20 C. D. 67, 10 C. C. (X.S.) 23 1. Cf. Schwartz v. Railway, 11 C. C. (X.S.) 65, 20 C. D. 394. (c) In an action for personal injuries resulting from one train running into another, evidence need not be confined to the rules of the company governing the duties of the train crew of the aj^proaching train, but evidence of a custom which is followed by trainmen under such circumstances is admis- sible, Carl V. Pierce, 20 C. C. 6S, 10 C. "D. 711. (d) Evidence of a custom of slackening the speed of elec- tric cars in approaching a })articular street crossing is ad- missible in a trial involving a collision at that crossing, as bearing upon tlie question of contributory negligence on the part of the one injured. Railway v. Ward. 2 C. C. (N.S.) 2.-)6. I.') C. D. 399. (e) "SVliere an employe making repairs at the top of a telephone ])ole and supporting himself in jiart by tiic aid of a guy-wire, wliicli was claimed to be defective, fell by the breaking of the guy-wire, and was killed, evidence of a cus- tom, usage, habit or general practice of employes to use the guy-wire as a support, known to tlif employer, or which by the exercise of i idinar-y cai-e should have been known by it, is competent. Davifl!=on V T.lcplione Co., .5 O. Ai-p. 2:!7. 26 C. C. (X.??.) 273, 27 C» D. 415. Of. Packet Co, V. I5iitti.n, 1 C. C. (X.S.) ."IJ, 15 ( . J). 153. CHAPTER X. CHARACTER. 136. General principles. 137. In libel and slander. 138. In torts generally. 139. In rape and .seduction. 140. In crimes generally. 141. In defense of self-defense. 142. Social standing. 143. Reputation of third persons. 144. Reputation of things. 145. Province of court and jury. 136. GENERAL PRINCIPLES. (a) In civil cases where character is not a part of the issue, the general rule is that character of a party or of any person not a witness is not admissible. (b) Upon the trial of an action brought by a Avoman to recover damages for an indecent assault, it is not competent for the defendant to show that at the time of such alleged assault, the reputation of the plaintiff for chastity was bad. And he can not show as a part of his defense that he was a man of good reputation, Sayen v. Ryan, 9 C. C. 631, 6 C. D. 732. Cf. Reed v. State, 9S 0. S. 279. Cf. Allen V. State, 26 C. C. (N.S.) 254. (c) On an application to revoke a preacher's license to marry on the ground that he is not a member nor an ordained minister of the church, evidence of his conduct or moral char- acter before he was connected with the sect for which he is preaching, is not relevant. In re Reinhart, 9 0. D. 441, 6 X. P. 43S. (d) "Whenever character is a part of the issue, as in libel and slander, it is admissible in evidence ; and when good character is an element of damage, bad character may be shown in mitigation of damages. 180 181 CHARACTER § 137 (e) When the reputation of a party is in issue, it should be proved by witnesses who were acquainted with him and liis reputation at tiie time, or before the time, of the occurrence; and it can not be proved by one who never heard of him before, but might have heard evil reports of him after the occurrence. Insurance Co. v. ]\ray, 20 Oh. 212, 225. 137. IN LIBEL AND SLANDER. (a) In actions for slander, a general reputation of want of good character in the very particular or trait in which it has been assailed, is admissible in mitigation of damages ; for the damages which plaintiff has sustained must depend largely upon the estimation in which he was previously held. A per- son of bad reputation is not entitled to the same damages as one whose character is above suspicion. Duval V. Davey, 32 0. S. 604, 612. Her V. Cromer, Wright, 441. (b) Where the slanderous words set out in the petition charged the plaintiff, a female, with a want of chastity, it is competent under the general issue, in mitigation of damages, to show that plaintiff's general reputation for chastity at and prior to the speaking of the words was bad. The inquiry as to reputation need not be confined to general bad character. Duval V. Davey, 32 0. S. 604, 610. Cf. Van Derveer v. Sutpliin, 5 0. S. 203. (c) In an action of slander by a husband, it is competent for the defendant, under the general issue, in mitigation of damages, to prove that the wife and an unmarried man had lived together alone in one house, where a knowledge of such mode of living had come to the defendant before speaking the words. Reynolds v. Tucker, 6 0. S. 516. (d) In an action by a woman for slander where the alleged defamatory words impute to her a want of chastity, specific acts of sexual intercourse by her can not be given in evideiu'e for any purpose, under the issue made by a general denial. §138 METZLER'S OHIO TRIAL EVIDENCE 182 The direct tendency of such evidence is to prove a justifica- tion ; and that can not be proved, unless it is specially pleaded. Duval V. Davey, 32 0. S. 604. Cf. Fisher v. Patterson, 14 Oli. 418. (e) But under an indictment charging that the accused uttered a false ajid malicious slander of a female of good repute, evidence of specific acts of illicit carnal intercourse by her which came to his knowledge immediately before the speaking of the words is admissible to disprove the charge. Lambright v. State, C. C. (X.S.) 151, 10 C. D. 03. (f) Where in libel the defense is justification, it is error to permit the plaintiff over the defendant's objection, to give in chief evidence of his good character. The law presumes the plaintiff's character to be good. Blakeslee v. TTujrhes. 50 0. S. 400. Cf. Kahn v. Times-Star, 8 K. P. 61G, 10 0. D. 599. (g) And where in an action of slander a witness had testified that the plaintiff, a woman, had a good reputation, the adverse party was not permitted to show on cross-exami- nation of the witness that the plaintiff had been in the habit of associating with lewd and immoral men and women. Facts not admissible in chief as a defense can not be introduced on cross-examination under the guise of impeaching the witness. Duval V. Davey, 32 O. S. G04, 13. 138. IN TORTS GENERALLY. (a) In an action for false imprisonment, the person who caused the arrest may show the bad character of the person arrested. Such evidence tends to show probable cause: as a person of bad character is more likely to commit a crime than a person of good character. Britton v. Granger, 7 C. D. 182. 13 C. C. 281. (b) In an action against a justice for unlawfully commit- ting the plaintiff to jail, where injury to reputation is alleged as one of the grounds of recovery, it is competent for the defendant to prove that plaintiff was at fTie time the cause of action arose of bad repute for honesty, if the effect of the evi- 183 CHARACTER § 139 dence is limited to defeating or reducing a recovery on that particular ground. Drummond v. TTonderson, 62 O. S. 136. (c) In an action for malicious prosecution, evidence of the plaintiff's good reputation and of defendant's knowledge of such reputation may be introduced for the purpose of show- ing want of probable cause. Funk V. Amor, 4 C. C. 271, 2 C. D. 541. 139. IN RAPE AND SEDUCTION. (a) On a trial for rape, the character of the prosecutrix for chastity can not be impeached by evidence of particular acts of unchastity, but only by general evidence of her repu- tation in that respect. Nor can she be interrogated as to pre- vious criminal intercourse with persons other than the ac- cused himself; nor is such evidence of other instances admissible. McCombs V. State, 8 0. S. 643. McDermott v. State, 13 0. S. 332, 333. (b) In such a prosecution it is not competent for the accused to prove that the prosecutrix on the day that the offense was perpetrated, had agreed with a third person to have sexual intercourse with him at other times and places. McDermott v. State, 13 0. S. 332. (c) In a prosecution for rape, where the state has given evidence tending to prove that the prosecuting witness had contracted a venereal disease from the defendant by reason of his alleged forcible sexual intercourse with her, evidence that she had sexual intercourse Avith others than the defendant about the time of the alleged rape is admissible to show that the prosecuting witness might have contracted the disease from some person other than the defendant ; but evidence that she tried to have sexual intercourse with other men or boys during that period is inadmissible for any purpose. An^eloff V. State, 01 O. S. 361, 2. (d) Where a criminal statute against seduction extends its protection to all females under the age of eighteen years §139 METZLER'3 OHIO TRIAL EVIDENCE 184 who are of good repute for chastity, it is not competent for the defendant to prove specific acts of illicit carnal inter- course by the prosecutrix with other persons ; and he must attack her character, if at all, by proof of her reputation. Bowers v. State, 29 0. S. 542. (e) It is competent for the defendant in such case to give in evidence previous acts of carnal intercourse by the prose- cutrix with himself, not to impeach her character for chastity, but to show that the criminal act charged was not committed under a promise of marriage. Bowers v. State, 29 0. S. 542. (f) Where the defendant offers no evidence as to the reputation of the prosecuting witness, the state may not prove her reputation for virtue. Before the state can introduce, in rebuttal, evidence of her general reputation for chastity in cases of this character, the defendant must offer some evi- dence assailing the general reputation of such witness. Reed v. State, 98 0. S. 279. Cf. Sayen v. Ryan, 9 C. C. 631, 6 C. D. 732. (g) In a suit for breach of promise, the defendant at- tempted to show by cross-examination of plaintiff (which was not objected to), that plaintiff had been guilty of unchaste acts since the suit was brought. The plaintiff was allowed in rebuttal to prove her good character; and this rebuttal was held proper. Duvall V. Fuhrman, 3 C. C. 305, 2 C. D. 174. Cf. Reynolds v. Walker, 36 Bull. 167. (h) Where in the course of an inquiry into the general character of the prosecutrix for chastity, some of the wit- nesses for the accused spoke of specific reports of sexual inter- course between her and another individual, no objection hav- ing been made to proof of such specific reports, it is not competent for the state by way of rebuttal to prove that there was no such improper intercourse. The issue in such cases is not whether the reputation for unchastity was deserved, but whether it was generally accredited. McDermott v. State, 13 0. S. 332. 185 CHARACTER § 140 (i) However, it is competent for the state upon cross- examination to ascertain from the witnesses their means of knowing her general reputation, and everything which reflects upon the nature and general prevalence of the reputation imputed to her; but for the sole purpose of showing that in fact no such general reputation M'as prevalent in the com- munity. McDermott v. State, 13 0. S, 332, 335, 140. IN CRIMES GENERALLY. (a) Evidence of a prisoner's good character was formerly held to be admissible, in favorem vitae, in all cases of treason and felony; but this reason is now no longer given, the true question being whether the character is in issue. There is no distinction between evidence of facts and evidence of char- acter. The latter is equally laid before the jury as the former, as being relevant to the question of guilty or not guilty. State V. Dickerson, 77 0. S. 34, 54. (b) Upon the trial of a criminal cause, the prosecution can not offer evidence to impeach the general character of the accused until he has put it in issue by calling witnesses to prove his good character. Griffin v. State, 14 0. S. 55, 63. (c) While it is competent, in the trial of one charged with having burglars' tools in his possession with burglarious in- tent, to prove the occupation of the accused as bearing upon the intent with which he was carrying the tools, it is error to admit hearsay evidence as to the reputation of himself and his associates ; as reputation is not in issue until the accused introduces the subject. Brown v. State, 13 C. C. (N.S.) 138. Cf. State V. Hahn, 8 N. P. 101, 11 0. D. 311. (d) The term "general character" is used to signify what would perhaps be more definitely expressed by "general repu- tation." The term "character," when more strictly applied, refers to the inherent qualities of a prrson rather than to any opinion that may be formed or expressed of him by others. Bucklin v. State, 20 Oh. 18, 23. §140 METZLER-S OHIO TRIAL EVIDENCE 186 (e) Reputation to be available as evidence must be com- mon or general reputation, the crystallized estimate which people in general have formed of the individual in the com- munity where he has lived. State V. Ro.Ierick. 77 O. S. 301. 300. Griffin v. State, 14 0. S. oS, . 773. (g) In an action against a telegraph company by the owner of a farm for the wrongful cutting of shade trees growing along a highway Avhich passes through it, an oral license from a tenant not authorized to give it, if acted upon in good faith, and the instructions of the company to its servants with respect to the manner of trimming trees along its line, if given in good faith, are competent to defeat or mitigate the recovery of exemplary, but not compensatory, damages. Telegraph Co. v. Smith, 64 O. S. 106. Cf. Cliampion v. State, 6 C. D. 777, 9 C. C. 627. 157. MALICE IN PROSECUTIONS. (a) Where malice is an essential ingredient of a tort or an offense, such as malicious prosecution or malicious destruc- tion of prop -'ty, evidence that the defendant act^-d on legal advice is admissible to show absence of malice. Eihlert v. Gummoll, 3 C. C. (N.S.) 345, 13 C. D. 586. Adams v. State, 11 N. P. (N.S.) 11, 25 O. D. 77. § 158 METZLER'S OHIO TRIAL EVIDENCE 210 (b) Probable cause does not depend on the actual state of the case, but on the honest and reasonable belief of the party prosecuting. And the advice of a magistrate on a full state- ment of facts may "be proved in order to show good faith, rebut malice and mitigate damages. White V. Tucker, 16 0. S. 468. (c) In order to show probable cause, the defendant is not confined to the transactions of plaintiff alone, but evi- dence of the acts of associates of the plaintiff tending to give defendant a belief of the plaintiff's guilt, is relevant. Johnson V. Corrinpton, 3 Bull. 1130, 7 0. D. R. 572. John V. Bridgman, 27 0. S. 22, 42. 158. MALICE IN LIBEL AND SLANDER. (a) In a suit for defamation, evidence of actionable words or distinct libels not declared on, is competent to show malice ; but they can not be made the foundation for a recovery of damages. They can aft'ect the damages only by showing the degree of the malice in the publication of the words or libel declared on. Falsity of the libel may also be shown for the same purpose. Van Derveer v. Sutphin, 5 0. S. 293. Alliance Co. v. Valontine, 9 C. C. 387, 6 C. D. 323. (b) In an action of slander, the plaintiff may give evi- dence of the speaking of other words or the speaking of the same words after the action is brought, to prove the mali- cious intent with which the slanderous words stated in the declaration were uttered by the defendant. Stearns v. Crx, 17 Oh. .5flO. Alpin V. Morton, 21 O. S. 536. (c) When, at the trial of an action for libel, the plain- tiff has given evidence tending to show a right to recover punitive damages, evidence by the defendant as to his feel- ings toward plaintiff, and his motives in the publication, is competent as bearing upon the question of such damages, ITenn v. Horn, 56 O. R. 442. See Section 6319-4, General Code. 211 STATE OF MIND §160 (d) In an action of slander, it is competent for the defendant under the general issue, in mitigation of damages and to rebut malice, to prove facts connected with the speaking of the words Avhich werp from their nature calculated to induce belief on his part ; provided such proof does not establish a justification. Reynolds v. Tucker, 6 0. S. 516, 518. Dewitt V. Greenfield, 5 Oh. 225, 226. (e) In a libel ease under the general issue, defendant may show a common report in circulation prior to the publication that the plaintiff was guilty, but only to rebut the presumption of malice; and for the same 'purpose particular facts or circum- stances calculated to mislead the defendant are competent whether the evidence tends to prove the charge or not. Van Derveer v. Sutphin. 5 0. S. 20.3. Hilbrant v. Simmons, 18 C. C. 123, 9 C. D. 566. See Section 6319-4, General Code. 159. MENTAL SUFFERING. (a) One bitten by dogs may testify as to meiital suf- fering through fear of hydrojiliobia and lockjaw ; and an in- struction to the jury tliat recovery may be had on this ac- count does not cure the error in excluding the evidence. Heintz v. Caldwell, 9 C. D. 412, 16 C. C. 630. (b) In an action for false arrest, the plaintiff may testify as to the effect of the arrest upon his mental and nervous condition. And, in an action for wrongful ejectment from a street-car, the plaintiff may testify as to what effect the act had upon his feelings. His sense of humiliation is material to the issue. Simper v. Carroll. 12 C. C. (N.S.) 140, 21 C. T). 386. Traction, etc., Co. v. Peterson, 18 C. C. (N.S.) 242. 160. DEFENSE OF GOOD FAITH. (a) Where a person does an act apparently criminal, but in fact under circumstances that tend to show a want of guilty intention, the, .excusing circumstances may be given 'n evidence to show his good faith wliere that is material, or that he was ignorant of the facts that would malce Ills acts criminal. Farrcll v. Stato, 32 0. S. 456. §161 METZLER'S OHIO TRIAL EVIDENCE 212 (b) In a trial for abortion, evidence was introduced to show that a second physician was called to administer the anaesthetic ; that on finding the foetus to be alive and that a miscarriage Avas not necessary to preserve the woman's life, the physician immediaiely desisted and directed that she be restored to consciousness. This was held proper to show absence of criminal intent. State V. Tippie, 89 O. S. 35. (c) "While a custom among contractors of helping them- selves to each other's material when a small quantity is needed to complete a job, is unreasonable and not binding as a rule of property, it is competent for the purpose of tending to prove a lack of criminal intent in taking such material. Kuhl Co. V. Mack, 12 C. D. 177, 17 C. C. 663. IGl. DEFENSE OF INTOXICATION. (a) Intoxication is no defense to a prosecution for crime; but in some cases evidence of intoxication is admissible to show^ that no crime has been committed, or to show the degree or grade of crime. It is only allowed to rebut guilty knowledge, deliberation and premeditation or an intent requiring nice dis- crimination, and shouUl go no further. Cline V. State. 43 0. S. 3.32. Nichols V. State, 8 O. S. 435, 439. (b) Drunkenness not amounting to insanity is of little weight in second degree murder, unless it is so great as to show incapacity to form a purpose or intention so to act. or unless it caused or was connected with a sudden quarrel. Davis V. State, 25 0. S. 369, 373. (c) In L prosecution for maliciously shooting wi!h intent to wound, evidence that the defendant was so much intoxi- cated that he could not form or have such intent is admissible. In a capital case, w^here the defense was that the homicide was committed while the accused Avas suffering from delirium tremens, it was held that evidence of a general reputation of the prisoner zs being a drunkard is not admissible. Cline V. State, 43 0. S. 332. State V. Kirves, Iddings, 9. 213 STATE OF MIND §161 (d) In a proseention for perjury in reference to a past transaction, the accused may show that at the time of such transaction he was greath' intoxicated as tending to show that his testimony' was not knowingly false. Lytle V. state, 31 0. S. 106. (e) Drunkenness of the accused at the time of passing a counterfeit bill is a circumstance proper to be submitted to the jury, and should have its just weight iu determining whether the accused knew the bill to be counterfeit. Pigman v. State, 14 Oh. 555. CHAPTER XII. HEARSAY, 162. General rule — Illustrations. 163. Written hearsay. 164. Exceptions to the rule. 165. Words in issue. 166. Information acted upon. 167. Pedigree. 168. Custom and boundaries. 169. Statements against pecuniary interest. 170. Dying declarations. 171. Business entries. 172. Mathematical and statistical tables. 173. Commercial publications. 174. Former testimony — Bill of exceptions. 175. Former testimony — Notes of stenographer. 170. Former testimony — Witnesses. 162. GENERAL RULE— ILLUSTRATIONS. (a) Hearsay is the evidence of those who relate, not what they know themselves, but what they have heard from others. Such mere recitals or assertions, whether oral or written, can not he received in evidence for the reason that the party mak- ing them is not on oath, and because the party against whom they operate has no opportunity of cross-examination. Walter v. Bowling Green, 16 C. D. 756, 5 C. C. (N.S.) 516, 526. (b) Information acquired by a police offtcer from a third person as to the amount of nitro-glycerine transported over a certain street by the defendant, in violation of a municipal ordi- nance, is hearsay evidence and inadmissible, and statements of a driver of a milk-wagon to the arresting officers as to who OAvned the wagon, when repeated in court by the officers, was held to be hearsay. Walter v. Bo^v^iT^^ Green. 5 C. C. (N.S.) 516, 16 C. D. 756. ( -rdes V. State, 4 N. P. 14, 6 O. D. 5. 214 215 HEARSAY §162 (c) A doctor can not testify that a hypodermic injection ■was given because he directed a nurse to frive it and was told that it had been given. And a witness will not be allowed to state what a doctor told him about medicines he had admin- istered, because it is hearsay. Ward V. Railway. 16 C. C. (X.S.) 504. 27 C. D. 627. Insurance Co. v. LeBoiteaux, 5 0. D. R. 242, 4 A. L. Rec. 1. Cf. Dawson v. State, 5 O. App. 130. (d) On the trial of one charged with murder, an exculpa- tory declaration of the deceased, which is neither a dying declaration nor part of the res gestae, is not competent evi- dence for the accused. State V. Grayson, 18 Bull. 221, 10 0. D. R. 55. (e) In a proceeding to set off the yearly allowance to a widow, a statement of the deceased as to the amount of his income can not be admitted, because it is not a statement in the ordinary course of business, nor is it a statement against his pecuniary interest. In re Ralic, 12 0. D. 590. (f ) In an action for enticing away a wife, it is error to allow the husband to testify to statements of the wife relating to the words and acts of the defendant, as they are mere hearsay. But he may testify to her declarations shortly before the entic- ing, whether before or after the marriage, to show the state of her affection tOAvard him. Preston v. Bowers, 13 0. S. 1. Cf. Wilson V. Barkalow, 11 0. S. 470, 473. (g") Evidence of a witness that he had heard or understood that a statement was a fact is hearsay. But it is not hearsay for a witness to state that he had heard of a certain transaction, Avhen the object of the question is to assist him in fixing a date. Adams v. Brown, 16 0. S. 75. Thompson v. Ackerman, 21 C. C. 740, 12 C. D. 456. Telephone Co. v. Jackson, 4 C. C. (N.S.) 386, 16 C. D. 89. (h) It is not error to admit the statement of a witness that, "a police officer told him where he obtained licpior in dry terri- tory," if no disclosure is made as to the j)erson who sold it. Lynch v. State, 12 C C. (N.S.) 330, 21 C. D. 352. §163 METZLER'S OHIO TRIAL EVIDENCE 216 (i) Where a witness states that at the time he saw a cer- tain device he did not know what it was, but irnv knows that it was a signal torpedo, such statement will not be taken from the jury as hearsay; because such after-acquired knowledge is not necessarily hearsay. A witness should testify accord- ing to his present knowledge and not according to that of a previous time. Railroad v. Marsh, 63 0. S. 236, 40. (j) Where a witness is asked a question in the ordinary form, it calls for the personal knowledge of such wntness; and if the adverse party does not ask any preliminary questions to ascertain whether the answer would be hearsay, the court can not assume that the witness could not answer from knowledge. Turnpike Co. v. Hester. 5 C. D. 600, 12 C. C. 350. (k) A question asked on cross-examination of the witness, by the defendant, as to Avhat a third person told him. wnll not authorize the other party, on a re-examination, to inquire ■what the third person in the same conversation said the de- fendant himself had told him ; such evidence is hearsay. McCraeken v. West, 17 Oh. 16. 163. WRITTEN HEARSAY. (a) A report of an accident made up by agents of a rail- way company from statements of persons who witnessed it, is incompetent against the company, as it is not a part of the res gestae but mere hearsay. And the fact that the statute requires such reports to be made to the commissioner of railways, does not render them competent against the company. Pxaihvay v. Ullom. 20 C. C. ."12. 11 CD. 321. Cf. E.K parte Schoepf, 74 O. S. 1. (b) In a case to appropriate land Avhere there w^as a coal mine and also a private railway, the account-books of the company operating the mine and raihvay were held not ad- missible to show the value of the land where the coal company was not a party to the case, and no special ground is laid for the evidence. Powers V. Railway, 33 0. S. 429. 217 HEARSAY § 165 (c) In order to prove that the makers of forged notes were fietitions persons, a letter of the cashier to whom they were sent for collection, stating that the makers' residence should have been furnished, and the notarial protest certify- ing that the parties could not he found were admitted in evi- dence. It was held tliat these were mere declarations of third persons, which it was error to admit. Farrington v. State, 10 Oli. 354. (d) Tn an action for loss of grain in transit, the testimony of a witness who has no knowledge of the weight of the grain except Avhat was contained in the certificates of weight, is inadmissible to prove the quantity of grain shipped. And newspaper statements and the understanding of a witness from such sources are not evidence as to who are directors of a bank. Emison v. Railroad. 12 C. D. 727. State, ex rel., v. Bucliaiian, Wiiglit 233. 164. EXCEPTION'S TO THE RULE. (a) The hearsay rule is simple; but the exceptions to the rule, which are many, are not so simple. They include such subjects as dying declarations, business entries, and proof of former testimony, any one of which is much more complicated than the principal rule it.self. The remainder of the chapter will treat of tliese exceptions. 165. WORDS IN ISSUE. (a) "When it is material to know whether a person made a certain remark or statement at a particular time, such as the slanderous words in libel and slander, evidence is admissible to show that it was made; and it is not regarded as hearsay. Therefore, the contradictory statements of witnesses and the admissions and confessions of parties are not hearsay. Ad- missions and confessions may be regarded as exceptions to the hearsay rule, as they are evidence of the facts stated in them ; contradictory statements are not ordinarily regarded as exceptions, as they are not admitted to prove the issue, but merely to discredit the witness. § 166 METZLER'S OHIO TRIAL EVIDENCE 218 (b) A bystander may testify to the part of a telephone conversation heard by him, where such conversation is in other respects competent evidence in the case, such as one of the terms of an oral contract. Dannemiller v. Leonard, 15 C. C. 686, 8 C. D. 735. (c) Where a witness, in testifying as to a conversation had by telephone, makes a positive statement as to who it was with whom he conversed, and he is not cross-examined as to the identity of the person at the other end of the Avire, the conversation is admissible, notwithstanding the uncer- tainty which may exist as to the identity of tlie other party speaking. Pullman Co. v. Willett, 7 C. C. (X.S.I 173, 17 C D. 649 166. INFORMATION ACTED UPON. (a) When the question is whether a person acted pru- dently, wisely or in good faith, the information on which he acted, whether true or false, is original and not hearsay evi- dence. Upthegrove v. State, .37 0. S. 662, 663. (b) If a person is run down while on the track waiting for a train that is on time, a statement to him when starting from home that the train was fifteen minutes late is compe- tent, not as shoAving that it was late, but to rebut an inference of negligence by showing that he acted on such information and was misled. Railway v. Herrick, 4n 0. S. 25. (c) Where a cross-examination is directed to showing that the witness arrested the prisoner recklessly and without reli- able information, it is competent on re-examination to ask for the description he had received of the criminal from a witness of the crime in order to explain the cross-examination. Moran v. State, 11 C. C. 464, 5 C. D. 234. (d) Upon the same principle it is considered that evidence of general reputation, reputed ownership, public rumor, gen- eral notoriety, and the like, though composed of the speech of third persons not under oath, is original evidence and not 219 HEARSAY §167 hearsay. (See Index under Malice, Probable Cause, Character, etc.) UpthegrovL- v. State, 37 0. S. 662, 663. 167. PEDIGREE. (a) The law resorts to hearsay evidence in cases of pedi- gree upon the ground of the interest in the declarations of the person from whom the descent is made out, and their con- sequent interest in knowing the connections of the family. The rule of admission is, therefore, restricted to the declara- tions of deceased persons who were related by blood or mar- riage to the person, and therefore interested in the succession in question. :McCiino V. Larkin. 25 C. C. (X.S.) 118, 26 C. T>. 357. See Sperry v. Tebbs, 20 Bull. 181, 10 0. D. R. 318. (b) The law of evidence necessarily permits hearsay as to pedigree; and general reputation that a man and woman had lived and cohabited in a community as man and Avife has been held sufficient to establish the fact of marriage, but the weight to be given to such evidence varies with the circum- stances of each case. Stewart v. Welch, 41 0. S. 483, 497. (c) In all civil actions, when the rights to succession of an estate depends on the existence, of a marriage, it may be proved by reputation, and also by the declarations and con- duct of the parties. Brnner v. Bripfrs. 30 O. S. 478. 480. Cf. Railway v. Cobb, 35 O. S. 94. (d) Tn an action to recover an estate of dower or of cur- tesy, the marriage may be shown by proof of living together as husband and wife for a series of years, always recognizing each other as such, and being so treated and reputed in the community. Bniner v. Brijips, 30 O. S. 478. Roberts v. Roberts, 8 W. L. J. 372, 1 O. I). It. 368. (e) In divorce and alimony, proof of cohaliitation and reputation oi" I he iiiari-iag(! of the ])aiiii'.s is coiiipctciit cvi- §168 METZLER'S OHIO TRIAL EVIDENCE 220 dence to prove such marriage, and. within the discretion of the court, may be sufficient therefor. Section 11989, General Code. (f) But the rule admitting reputation as to family his- tory, does not extend to allow hearsay as to specific facts of sickness or peculiarities of individuals of the family. State V. Lentil, 5 C. C. 94, 3 C. D. 48. 168. CUSTOM AND BOUNDARIES. (a) Declarations of deceased persons in regard to reputa- tion on matters of public or general interest are admitted, notwithstanding the hearsay rule. Declarations in regard to an ancient custom is an example of this exception to the hear- say rule. The rule is often applied to private boundary disputes. (b) Custom is a species of hearsay testimony, and in its most extended sense means a rule of action which extends back beyond the recollection of living witnesses; and is in this sense put upon the same basis as hearsay testimony in regard to other ancient matters that have their beginning beyond the recollection of living witnesses; but custom, as applied to con- tracts, is not of this extended and ancient character. Tillyer v. Glass Co., 7 C. D. 209. 13 C. C. 99. (c) AYhen corners are lost they may be proved by reputa- tion. Witnesses may be examined to show that a corner once existed ; that it has been destroyed, and that it corresponded with the call of the entry or survey. But they can not be allowed to substitute one corner for another, or to contradict the evidence w-hich is of record. McCoy V. Galloway, 3 Oh. 282. (d) But where a testator devised all of his "home farm" to his widow, it was held, in an action by the residuary de- visees to recover land M'hich the defendants claimed under the devise as part of the home farm, that hearsay or neighbor- hood reputation can not be resorted to in determining the ex- tent or boundaries of the home farm. Tavlor v. Bojjgs, 20 O. S. 516. 221 HEARSAY §170 169. STATEMENTS AGAINST PECUNIARY INTEREST. (a) To authorize the admission of the declarations of a deceased person aofainst third persons not claiming under him, on the ground that they Avere made against his pecuniary in- terest, it should appear that he has i)eculiar means of knowl- edge of the subject-matter of the declarations. There should be a presumption of actual knowledge arising from his imme- diate connection with the transaction or from a duty to know the fact. A mere inference from evidence that he might have known or very probably would have known, will not suffice. Bird V. Hueston. 10 0. S. 418. Cf. State V. Campbell. 11 X. P. (N.S.) 673, 21 0. D. 853. See also State v. Campbell, 86 O. S. 33:). (b) Plaintiff sued the defendant as administrator for work and labor and offered the declarations of a former adminis- trator who had died before the trial, by which declarations the indebtedness of the estate to plaintiff was admitted. It was held that the declarations were not admissible, although the declarant was the son of the decedent and managed the estate of deceased until his own death. Bird V. Hueston, 10 0. S. 418. (c) Where plaintiff sued defendant on his indorsement for the amount of a forged draft, and it is shown that the forger held an official position which gave him an opportunity to commit the forgery as it was carried out, and that the forger Avas arrested and soon thereafter died, a witness was per- mitted to relate a statement made by the forger after his ar- rest, in which he stated the details of the forgery. It was held that the evidence was properly admitted under this rule. Ban!: v. Bank. 7 0. App. 68, 28 C. D. 106, 27 0. C. A. 56. 170. DYING DECLARATIONS. (a) Evidence of dying declarations are not excluded by the constitutional provision that the accused shall he allowed to meet the witnesses face to face. It is well settled that dying doflarations fall within the exceptions to the hearsay rule. Robbins V. State, 8 O. S. 131. Sta^ V. Kindle, 47 0. S. 358, 361. §170 METZLER'S OHIO TRIAL EVIDENCE 222 ("b) It is essential to the admissibility of dying declara- tions as evidence that it should be made to appear to the court by preliminary evidence not only that they were made in articulo mortis, but also made under a sense of impending death, which excluded from the mind of the dying person all hope or expectation of recovery. Eobbins v. State, 8 0. S. 131. State V. Kindle, 47 0. S. 358, 365. Martin v. State, 9 C. D. 621, 17 C. C. 406. (c) Declarations made by a person shortly after an as- sault which caused his death, are not competent where it does not appear that at the time of making the declarations he knew or believed that he was about to die. Wade V. State, 2 C. C. (X.S.) 189, 15 C. D. 279. State V. Moore, 8 O. D. 674, 34 Bull. 276. (d) It must be determined by the court by preliminary evidence that the statement is a competent dying declaration. And it is the right of the judge to hear this evidence in the absence of the jury ; and it is his duty to do so on the appli- cation of the defendant. Where the court upon such hearing in the absence of the jury holds that the declarations are ad- missible, the same or similar evidence must be submitted to the jury. Montgomery v. State, 11 Oh. 424. Martin v. State, 9 C. D. 621, 17 C. C. 406. (te) Upon the submission to the jury of alleged dying declarations, it is the right of the defendant to cross-examine the witnesses, to show if he can that there were no such dying declarations made, or for any reason they are not credible ; and the defendant may offer evidence upon these points in his defense. Martin v. State, 9 C. D. 621, 17 C. C. 406. State V. Kindle, 47 0. S. 358, 361. (f) Upon a trial for murder, it is not error to admit in evidence a competent dying declaration in a written statement by the injured person, where such declaration was at the time reduced to writing at the instance of the declarant, or with his consent, and was approved and signed by him, and con- 223 HEARSAY ^ 170 tained statements of the circumstances of tlie unlawful act wliieli is the subject of the cliarge. State V. Kindle, 47 0. S. 35S. Cf. Martin v. State, 9 C. D. 621, 17 C. C. 406. (g) If a former declaration is referred to as true in a dying declaration, it becomes a part thereof as if repeated at length. And a witness may state their substance, although he may not be able to give the precise words. Montgomery v. State, 11 Oh. 424. 425. (h) The general rule of evidence is that dying declara- tions are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. State V. Harper, 35 0. S. 78. (i) Under the general rule,, it was formerly held that dying declarations were not admissible in a trial for abortion ; but now^, by statute, the dying declaration of the woman who dies in consequence of the miscarriage or attempted miscar- riage, is admissible against the accused. State V. Harper, 35 0. S. 78, Section 12412-1, General Code. (j) In a civil action under the statute for wrongfully causing death, dying declarations of the deceased are not ad- missible, although defendant admits killing the deceased, and the evidence tends to show facts sufficient to justify a charge of homicide. Cosgrove v. Schaefer, 15 Bull. 8, 0. D. R. 550. (k) In making a dying declaration, the declarant, in speaking of the fatal wound, said it was done Avithout any provocation on his part. This declaration was not incompe- tent as being mere matter of opinion. Wroe V. state, 20 O. S. 460. Cf. Runyon v. Price, 15 O. S. 1. (1) Where dying declarations are })r()V('. Cf. Douglas V. bownend, 11 C. C. (N.S.) 300, 20 C. D. 640. 225. ADMISSION— SUBSEQUENT EXPLANATION. (a) When the effect of improper and pi-ojudicial evidence is cured by subsequent explanation, it can luit thereafter be regarded as prejudicial. So the erroneous admi.ssion of oral §226 METZLER'S OHIO TRIAL EVIDENCE 296 evidence of a written agency is not prejudicial if it is in proof that the principal ratified the act. Railway v. Watcrworth, 11 C. D. 621, 21 C. C. 405. Searles v. State, 6 C. C. 331, 3 C. D. 478. (b) The testimony of a brakeman that he did not know of any rule of the railroad company requiring him to ride at a certain place on the train, can not be regarded as prejudi- cial error where it appears that the book containing the rule was subsequently placed before the jury. Railway v. Hudson, 22 C. C. 586, 12 C. D. 661. 226. ADMISSION— FACTS NOT IN ISSUE. (a) The fact that a party was examined on a matter not at issue, or that the adverse party offered evidence of matters he was not bound to prove, will not avail on error unless pre- judicial. Minzey v. Marcy Co., 6 C. C. (X.S.) 503, 15 C. D. 593. Westwater v. Pool Co., 12 C. C. (N.S.) 3S2. Reynolds v. Rogers, 5 Oh. 169. (b) A judgment will not be reversed on error for the erroneous admission of evidence, where it appears from the record that the fact which the evidence tended to prove was admitted by the party seeking the reversal ; and that the evi- dence was, therefore, in no way prejudicial to him. Evans v. Reynolds, 32 O. S. 163. Ford V. State, 20 C. D. 502, 11 V. C. (N.S.) 324, 328. Wlielan v. Kinsley, 26 0. S. 131. 136. Insurance Co. v. Kelly, 24 O. S. 345, 361. (c) And where there was no dispute about a matter, and it was testified to by another witness, the admission of incom- petent evidence on the point can not be regarded as preju- dicial. Railway v. Waterworth, 21 C. C. 495, 11 C. D. 621. (d) In almost every trial there are necessary facts which the parties treat as admitted without formal proof. To make the absence of express proof in such cases ground for error after verdict and judgment would be unfair and attended with great inconvenience. Lewis V. Bank. 12 Oli. 132, 148. Cincinnati v. Roettinger, 21 C. D. 2.52, 11 C. C. (N.S.) 501, 2. 297 OBJECTIONS AND EXCEPTIONS §228 227. ERROR IN EXCLUSION— PRINCIPLES. (a) It is error to exclude proper evidence of only slight weight or to take it from the jury after it has been intro- duced, if exception is taken. But a judgment will not be re- versed for such error, if the record shows that the plaintiff in error could not have been prejudiced thereby. Penn. Co. v. :\rahonev, 12 C. D. 366. 22 C. C. 460. Farrell v. State, 32 0. S. 4.56, 461. Whitman v. Keith, 18 0. S. 134. (b) It is error to exclude statements of a witness which are contradictory to his previous testimony on the ground that they were mere opinions, when such statements carry with them an affirmance of facts. And where mental sufferinsr is a proper element of damage, and evidence on that subject is excluded by the trial-judge, an instruction to the jury that recovery may be had on this account does not cure the error in excluding the evidence. Heintz v. Calchvell, 9 C. B. 412, 16 C. C. 630. (c) It is error for the trial-court to reject evidence be- cause no reference was made to it in the preliminary state- ment to the jury. A party is not limited in his evidence by such statement. Evidence that is relevant and competent should be admitted, whether reference to it is made or not. McFarland v. Clark, 8 0. App. 326, 28 O. C. A. 217, 29 C. D. 449. (d) The giving of a wrong reason by a trial-judge for the exclusion of evidence is not ground for reversal of the re- sulting judgment, where the exclusion itself is proper. Bnnner v. Tson, 8 C. C. (X.S.) 260, IS C. D. 4r)9. Ludlow V. Park, 4 Oh. .5, 44. Courtri<»ht v. Staggers, 15 0. S. 511, 514. (e) When evidence of a payment has been improperly ex- cluded by the trial-court, and the deferulant in error shows to the reviewing court that he has remitted from his judgment the amount of such payment and interest, tbe judgment will not be reversed for such error. Doolittle V. McCullough, 7 0. S. 299. 228. EXCLUSION OF INDECISIVE EVIDENCE. (a) No prejudice arises to a party from the exclusion of his evidence, when his case is proved without it. So where, §229 METZLER'S OHIO TRIAL EVIDENCE 298 in an action to recover for negligence, the jury returned a verdict in a small amount for plaintiff, the exclusion of plain- tiff's testimony tending to show defendant's negligence was not prejudicial. Gentile v. Railway, 0. D. Ill, 4 X. P. 9. (b) And where in an action against a railway company for wrongful death it appears that decedent was guilty of negligence which would bar his recovery, the exclusion of material and proper evidence as to the negligence of the rail- way company can not be regarded as prejudicial. McCarty v. Railway, 11 C. D. 220. 20 C. C. Z?,Ck .-4.'). Cf. Courtright v. Staggers, 15 0. S. 511, 514. (c) And when proper evidence is excluded which could have been of no benefit to the ]iarty offering it, as Avhen the evidence does not tend to prove the party's case, or relates to a fact not necessary to the case, it is not prejudicial error. TTinit V. Dao-jrett, 2 Rull. 22. 7 O. D. R. 260. Sliadle V. Illuniinatin.u Co., 12 C. D. .37. 22 C. ( '. 40. Coal Co. V. Bank, 6 C. C. (X.S.) 22.1. 17 C. 1). 207. Bowman v. Hartman, 6 C. C. (N.S.) 264, 17 C. D. 300. (d) ^\'hen the trial-court excluded proper evidence, a re- viewing court will not distnrb the verdict where all the evi- dence and all the proceedings are before it in the record, and it appears that the jury would have been manifestly nnjusti- fied in giving any appreciable Aveight to the rejected evidence had it been admitted. Devero v. State, .1 C. D. 240, 5 C. C. 500. Cf. Hart V. .Jo!in.son. 6 Oli. S7. 01. Cincinnati v. Roettinger, 11 C. C. (X.S.) 501. 21 C. D. 252. Bigalow Fniit Co. v. Thixley, 23 C. C. (N.S.) 470. 229. EXCLUSION OF CUMULATIVE EVIDENCE. (a) It is a general rule that if the excluded evidence is merely cumulative there is no prejudicial error ; but evidence of an excluded witness can not be said to be cumulative be- cause the same as that of other witnesses, if the credibility of such other witnesses is attacked by cross-examination or other- wise. Whitman v. Keith, IR 0. S. 134. 149. Dickson v. State, 30 0. S. 73, 77. 299 OBJECTIONS AND EXCEPTIONS. ^231 (b) So also, if a competent fact is proved by an interested A\ itness it is error to exclude corroboration by a disinterested M-itness. The former proof does not render the error imma- terial. Turner v. Rtato, 5 C. C. 537, 3 C. D. 263. Cf. Railway v. Ilorriok, 49 O. S. 25, 28. 230. EXCLUSION— LATER ADMISSION. (a) If it appears from the record that the evidence in- tended to be elicited by the excluded question w^as in fact afterward received, so that no prejudice was done, the excep- tion can not be sustained. Gandolfo v. Ptato, 11 0. S. 114. Allen V. Lowo. 10 C. D. 3.-)3. 10 C. C. 353. Zeltner v. State, 13 C. C. (N.S.) 417. 22 C. D. 102. (b) Where on trial to a jury a party offers competent evidence which, upon objection is excluded, but afterward the same witness being upon the stand, the subject is without ob- jection fully inquired into, and the questions which had been held incompetent are fully answered, the error will be deemed cured. ATank v. Bnindajje, -68 O. S. 80. Tlnirnian v. State, 2 C. D. 400. 4 C. C. 141. Cf. Burch V. State, 5 0. D. 137. 7 X. P. 379. (c) However, the error of excluding competent evidence is not cured by the consent of the adverse party afterward while the same witness is under cross-examination, to go into the inquiry proposed by the rejected evidence. In such case, it woidd go to the jury with the stamp of judicial disapproval. Reynolfls v. Tucker, 0. S. 510. 519. 231. EXCLUSION— INVITED ERROR. (a) Where a party causes proper evidence to be ex- cluded, he can not afterward say that no such evidence was submitted. A party can not be permitted, either intention- ally or unintentionally to lead a court into the commission of an error, and then procure a reversal of the judgment for an error for which he was actively responsible. Duhme Co. v. TTazen, 6 C. C. (X.S.) 000, 17 C D. 079. State V. Kollar, 03 O. S. 89, 91. (b) Where in a suit for recovery of the value of services, the defendant causes proper evidence of value to be excluded, §232 METZLER'S OHIO TRIAL EVIDENCE 300 he can not afterward say that no evidence as to value has been submitted to the jury. Diilinie Co. v. TTazcn, C. C. (X.R.) 606, 17 C. D. 679. Clark V. Boltz, 10 C. C. (N.S.) 1, 19 C. D. mr>. (c) And where plaintiff sues for damages for breach of contract, and all his evidence of the contract and its breach has been improperly excluded upon the objection of the de- fendant, and upon motion of defendant a verdict was directed in his favor, the defendant will not be heard to say that there was no evidence of damages and that the court properly directed the verdict. Kneipper v. Richards, 7 C. C. (X.S.) 581, 16 C. D. 245. 232. EXCLUSION— PREJUDICE. (a) In order to justify the reversal of a judgment on the ground that the court below refused to permit certain evi- dence to be given, it is incumbent on the party complaining to show affirmatively that he was entitled to offer such evi- dence for some purpose stated in or manifest from the record. And the record must show that the fact to be proved was so material that the rejection of the evidence was prejudicial. Hamilton v. State, 34 0. S. 82. Bean V. Green, 33 0. S. 444. Hummel v. State, 17 0. S. 628. Palmer v. Yarrington, 1 0. S. 253. (b) Where the record does not disclose what reply the witness would have made had he been permitted to answer, a reviewing court will not presume that the answer would have been material or favorable to the plaintiff in error, or that the sustaining of the objection to the question was prejudicial, or that the rejection of the answer was improper. Miller V. Donahue, 11 C. C. (N.S.) 436, 21 C. D. 38. (c) The conviction of an accused will not be reversed for refusing him leave to show by preliminary proof that his con- fession was obtained by improper inducements, unless the facts constituting the alleged inducements, as proposed to be proved are set out in the record. Ifufcr V. State, 25 0. S. 464. (d) "Where a prisoner was examined as a witness and his counsel asked him with what intent he made the assault charged, but without showing what answer was expected and 301 OBJECTIONS AND EXCEPTIONG i^ 232 the court refused to permit the question to he answered, it was held that there was no prejudicial error. Bolen V. State, 26 0. S. 371. Cf. Oviatt V. State, 19 O. S. 573. (e) "When the bill of exceptions shows that the court ruled out certain letters, but the evidence rejected is not made part of the bill, there is no way of determining whether they were properly or improperly rejected. Palmer v. Yarrington, 1 0. S. 253, 261. Heptasophs v. Fife, 16 C. C. (N.S.) 205, 206. (f) The refusal of the trial-court to permit an oflficer of an insurance company to testify as to the time when he signed a policy can not be considered on error, where the statement in the record does not disclose any definite time that the wit- ness would say was the date of signing. Grand Lodge v. Bunkers, 3 C. C. (N.S.) 256, 13 C. D. 4S7. (g) AThere a witness whose deposition is being taken be- fore a notary public refuses to answer a question, the mate- riality or admissibility of which it is necessary to determine in order to commit him for contempt, it is essential that counsel fully set out what he expected to prove by the inquiry. In re Turner, 8 N. P. 241, 11 0. D. 251. (h) "Where it is stated in the record that for tlie ])urpose of proving a series of specified facts, most of which were in- admissible as evidence, a number of witnesses Avere asked a series of specified questions without showing what was ex- pected to be proved in reply to any particular one, a judg- ment Avill not be reversed on exceptions for ruling out the questions ; for it can not be told which one, if any, of them, was excluded to the prejudice of the party excepting. Powers V. Railway, 33 O. S. 429. (i) "Where an admission is sought to be proved ;nul the court sustains an objection to its competency, but not to the competency of the witness, it is necessary that tlio substance of the admission should appear in tlic bill of exceptions. TTollistor v. Peznor, 9 0. S. 1. Thurman v. State, 2 C. D. 466, 4 C. C. 141. § 234 METZLER'S OHIO TRIAL EVIDENCE 302 233. VERDICT ON TWO ISSUES. (a) Where there are two aspects under which the claim of plaintiff might be established, and the jury found in his favor, the judgment will not be reversed for error in admitting or excluding evidence on one issue exclusively ; but it will be affirmed unless the errors complained of are of such a char- acter as to vitiate the verdict as to both issues. Gund V. Fixture Co., 14 C. C. (N.S.) 493, 22 C. D. 07(i. (b) When distinct issues arising on several defenses are submitted to a jury, and there is a general verdict for the de- fendant, the erroneous admission or rejection of evidence on one of the defenses does not of itself render the judgment entered upon the verdict erroneous. The verdict may have been given on one or all of the other defenses. Beecher v. Dunlap, 52 O. S. 64. See State, ex rel., v. Hills, 94 0. S. 171. National Union v. Rothert, 39 Bull. 143. (c) Where the accused is acquitted on two defective counts, but is convicted on a valid count, the admission of im- proper evidence under the defective counts will not be ground for a new trial, unless it appears from the record that the evi- dence was incompetent under the valid count and also pre- judicial to the accused. Ridenour v. State, 38 0. S. 272. (d) Where a person is indicted for breaking and enter- ing a car with intent to steal and for the larceny of goods, and he is acquitted of the breaking and entering and con- victed of the larceny only, the judgment will not be reversed because of the admission of evidence to prove the breaking and entering. Manson v. State, 24 0. S. 590. 234. OFFER AND OBJECTION. (a) Evidence that is competent in part and incompetent in part, but offered as a whole, may be excluded. A judgment will not be reversed for the exclusion of evidence, unless 303 OBJECTIONS AND EXCEPTIONS §234 every material part of the evidence was competent for the purpose stated by the party offering it. Kent V. state, 42 0. S. 426. Benedict v. State, 44 0. S. 67n, 687. (b) And Avhere evidence was admitted against a general objection, the judgment will not be reversed on the ground that the evidence was incompetent, unless no material part of such evidence was admissible for any purpose. Kent V. State, 42 0. S. 426. Railway v. Kolley, 6 C. C. 155, 3 C. D. 393. Cliapman v. Seely, 4 C. D. 305, 8 C. C. 179. (c) But when evidence is received and admitted over a party's objection, and such evidence is altogether incompetent and irrelevant, it is prejudicial error; and it is immaterial whether or not he gave the proper reason for his objection. Young V. State, 16 C. D. 747, 6 C. C. (N.S.) 53, 56. (d) Even when no ground of objection is stated, it is error to admit improper evidence, such as a ])rivileged com- munication, when objection is made to the question and a motion is made to rule out the answ^er, and exception is taken to both rulings. Gazette Co. v. Grooms, 21 Bull. 292, 10 O. D. R. 489. (e) When evidence is admitted for one purpose only, it is the duty of the court to limit it to that consideration in its charge or otherwise ; and on failure of the court in this re- spect the party affected thereby should ask the court to cau- tion the jury to limit its effect to the purpose for which it is lawfully applicable. A late case states that it is the duty of the trial-court to instruct the jury at the time such evidence is received. Knight V. state, 54 O. S. 305, 381. Circleville v. Sohn, 11 C. D. 193, 20 C. C. 368. Baird v. Howard, 51 O. S. 57, 68. Baxter v. State, 91 O. S. 167. (f) A failure of the trial-judge to instruct the jury on the purpose for which certain evidence may be considered is reversible error, even though such instruction was not asked for, when objection was made to the evidence upon- the ground that it was not restricted to its proper purpose. Lebanon v. ^c•^^v:^^t/., 4 O. .Xpp. 173, 25 C. C. (N.S.) 273. §235 METZLER'S OHIO TRIAL EVIDENCE 304 (g) Whenever the introduction of evidence is objected to, counsel should be specific in stating the ground of his objec- tion [except when the ground is obvious]. And when a spe- cific objection is made, this, on error, is a waiver of all other objections. Van Zandt v. State, 13 C. C. (X.S.) 526. Kent V. State, 42 0. S. 426, 430. (h) "Where evidence offered is competent for one purpose and objection is made on another ground, and the party ob- jecting made no request that the evidence be limited to the proper purpose, he can not in a court of error complain that the trial-court erred in not limiting such evidence. Patterson v. State, 06 0. S. TO. (i) An objection to admitted testimony as to value on the ground of incompetency is not sufficient to sustain the claim on review that the witness had not qualified as an expert on values. Kinney v. Christy, 3 0. L. E. 385, 16 0. D. 715. 235. TIME FOR OBJECTION. (a) The general rule is that to lay the foundation for re- view% the party objecting to the decision must except at the time it is made. Where objection is made at the time, all grounds of exception may be obviated by the action of the other party or by the consideration of the court. But if the parties acquiesce in the decision by proceeding in the trial without objection, they are regarded as Avaiving the right to except. Section 11560. General Tofle. Bank v. Buckin<:!'an!. 12 O. S. 402, 406. State V. Kollar, 03 0. S. R9. 91. (b) If no objection Avas made to the introduction of oral evidence of the contents of an instrument, it is not error in the court to refuse to exclude such evidence after the cause has been argued to the jury. The objection should have been made at the time the questions were asked. Hummel v. State, 17 0. S. 628. Wroe V. State, 20 0. S. 460, 471. 305 OBJECTIONS AND EXCEPTIONS §235 (c) If a witness is called to prove self-serving statements of defendant in a conversation, the failure of the adverse party to object to the first question does not open the door for the proof of more incompetent evidence of the same kind, to the admission of which objection is made, even thougrh all the statements were made in the same conversation. Forrest v. State, 21 0. S. 641. (d) It is not correct practice to postpone an objection to a question until it develops what the answer will be and then move to strike out the answer. An objection to a question is too late after the answer is not what is expected. Voorlicrs Co. v. Supply Co., 12 C. C. (N.S.) 243. Union Mill v. Packard, 1 C. C. 76, 1 C. D. 46. (e) Where, after a question is answered on direct examin- ation, the witness proceeds to give other evidence without interruption of counsel eonductino' the examination, such counsel will not be heard to object after he finds that the vol- unteer statement of the witness is not likely to benefit him. Banning v. Banning, 12 0. S. 437, 444. (f) But an objection to a witness made when he is offered as a witness and before he is sworn is premature if the Avitness is competent to testify on any matter in issue. The objector must wait to see what is proposed to be proved. Murdock v. IVTcXeely, 1 C. B. 9, 1 C. C. 16. Meier v. Herancourt, 11 A. L. R. 46, 6 0. D. E. 1164. (g) An objection to the introduction of any evidence on the ground that the petition does not state a cause of action does- not operate as an objection to evidence thereafter re- ceived in support of an allegation w^hich might have been eliminated from the petition by motion. Specific objection should be made to evidence when it is offered. Tuttle V. Furi, 22 C. C. (N.S.) 388. (h) When objection is made to a preliminary (iiiestio-\ such as whether there was a conversation on a certain subject, the court may overrule the objection even though tlie subject is incompetent. If any part of the conversation is tlien called for, an objection to it should be sustained. iloran v. State, 5 C. D. 234, 11 C. C. 464. §236 METZLER'S OHIO TRIAL EVIDENCE 306 236. REPEATED RULINGS. (a) The repetition of a question is properly refused after it has been answered. And when an objection is made and it is overruled and the evidence admitted, a rule is thereby established ; and it is not necessary for counsel to continue to object to the same class of evidence. In such eases, some courts assert that it is impertinent in eoansel to continue ob- jecting after the court has ruled. Railway v. Gilbert. 14 C. D. 181, 2 C. C. (X.S.) 432. Railway v. Yokes, 5 C, D. 599, 12 C. C. 499, 502. (b) When an objection is made and sustained, and the evidence is excluded, a rule is thereby established ; and it is the duty of the trial-judge to prevent the repetition of the in- competent question to which objection has been sustained. Railway v. Pritschau, 69 0. S. 438, (c) A statement by the court that counsel has persistently asked improper questions, accompanied by a caution to the jury to disregard such questions and to draw no inference as to what the answer would have been, had the witness been permitted to answer them, cures any error because of the mis- conduct of counsel, Kornfeld v. Kornfeld, 16 C. C. (N.S.) 400. (d) There are times Avhen evidence must be offered even after a ruling against it. When evidence is offered and prop- erly rejected at the time, and subsequent developments in the case render it admissible, the ruling will not be erroneous unless the evidence is offered again. Dickey v. Greenleaf, 38 0. S. 593, 599. (e) If evidence is offered that is admissible for one pur- pose and it is rejected because offered by counsel for another purpose, it ought not to be rejected when offered on the cor- rect ground, because of the former mistake or misapprehen- sion as to the true principle of its admission. Stearns v. Cox, 17 Oh. 590. 307 OBJECTIONS AND EXCEPTIONS §237 237. STATEMENT OF EXPECTED PROOF. (a) When a question is asked of a witness which is ob- jected to, and the objection is sustained, the ruling will not be reviewed on error, unless the exception taken shows what it was proposed to prove. The rule is the same in both civil and criminal cases. Xeff V. Cincinnati. .32 0. S. 215. Bean v. Green, .33 O. S. 444. Hummel v. State, 17 0. S. 62S. (b) When an exception is taken to the ruling of a court in rejecting evidence, it is not necessary that the evidence should be set out in the bill of exceptions; it is sufficient if the bill states the facts which such evidence tends to prove. But it is not sufficient to bring up merely the excluded question and proposed answer without sufficient other evidence to show their connection or relevancy. Himrod Co. v. Eailroad, 22 0. S. 451. Coston V. Paige, 9 0. S. 307, 399. (c) The rule requiring a statement of the expected proof when evidence is excluded applies in all direct examiuations of witnesses. The rule must be observed in offering evidence in rebuttal as well as in chief. Shadle v. Illimiinatinfr Co., 12 C. D. 37, 22 C. C. 49. ^kleeker v. Browning, 9 C. D. 108, 17 C. C. 54S. (d) But if the question is asked on cross-examination, the pi-oposed proof need not be stated. The rule does not apply to strict cross-examination. But Avhere the question indicates that the matter proposed to be proved is not proper cross- examination, the rule applies; and the examiner must disclose what he proposes to prove by the question. Martin v. Eldon, 32 0. S. 282. Bean v. Green, 33 0. S. 444, 448. (e) The rule does not apply where a witness on cross- examination is asked if he has not made statements inconsist- ent with his testimony in chief, the purpose and object of the in(|iiiry being sufficiently manifest without sucli disclosure. The witness being adverse, counsel cmild not Ix' pi-esumoH to know what his answer would be. Burt V. state, 23 0. S. 394. §238 METZLER'S OHIO TRIAL EVIDENCE 308 238. MOTION TO RULE OUT. (a) A reviewing court will not determine whether admit- ted evidence is competent when no proper means was exer- cised at the trial, by motion or otherwise, to have it taken from the jury. A motion to strike out, though a common form, is regarded as indefinite and improper. Telephone Co. v. Jackson. 16 C. D. SO. 4 C. C. (N.S.) 386. Terry v. State. 3 C. C. (N.S.) 503, 14 C. D. 111. (b) Where an incompetent witness is called to testify in a case, it is not error to permit his testimony to go to the jury, unless the record shows that the opposite party objected to his testifying or asked the court to rule out the evidence. Inglebright v. Hammond, 19 Oh. 337. (c) Failure of a defendant to ask the court to instruct the jury to disregard evidence which was properly admitted as against a co-defendant who was subsequently dropped from the case, waives any error of the court in neglecting to so in- struct the jury. Morton v. Murry, 20 C. C. (N.S.) 481. (d) If evidence is admitted subject to objection or the further consideration of the court, and it afterward develops that such evidence is irrelevant or incompetent, the party de- siring to object to such evidence must, before the case is closed, call the attention of the trial-judge to such evidence and ask that it be ruled out. Tliayer v. Luce, 22 O. S. fi2. Bradstreet v. Prons, 11 liull. 117. 0. D. R. 154. Railroad v. Ellis, 6 C. D. 304. 13 C. C. 704. Meier v. Hcrancourt. II A. L. R. 40. 0. D. R. llf.4. (e) It is not proper practice for a party to move that cer- tain testimony be ruled out on the ground that his evidence in reply to it will show^ that the testimony is worthless. The evidence in reply should be offered to the jury the same as other evidence, and not to the court on a motion to rule out. Loudenback v. Collins, 4 0. S. 251, 259. 309 OBJECTIONS AND EXCEPTION? §239 239. THE MOTION MUST BE SPECIFIC. (a) If it is desired that evidence already given should be ruled out, the party should point out what that evidence is, not by referring to it in general terms, but by stating the mat- ter to which objection is taken so that it can be ascertained with reasonable certainty. A motion to rule evidence from the jury embracing competent as well as incompetent evidence should be overruled. Cincinnati v. Cameron, 33 0. S. 336. Van Zandt v. State, 13 C. C. (N.S.) 526. Morris v. Faurot, 21 0. S. 155. (b) "Where a motion is made to exclude the entire testi- mony of a witness, part only of which is incompetent, without specifying any particular part of the testimony objected to, or disclosing the ground of objection, it is not error in the court to overrule the motion. Westerman v. Westerman, 25 0. S. 500. Elstner v. Fife, 32 O. S. 358, 368. Finnegan v. Sullivan, 18 C. C. 876, 4 C. D. 292. (c) "WTiere the question put to a witness is competent, or not objected to by counsel, and the witness answers, a part of which answ'er is competent and a part incompetent, a general objection to the whole answer is properly overruled, even though there be some objectionable matter in the answer. To save the objector's rights he should clearly indicate the part of the answer to w'hich he objects and move its exclusion. If the court overrules such motion, he should then save his exception. State V. Lasecki, 90 0. S. 10. Voorliees Co. v. Supply Co., 12 C. C. (X.S.) 243, 21 C. D. 557. Cireleville v. Sohn, 11 C. D. 193, 20 C. C. 368. Railway v. Godwin, 12 C. D. 537. (d) Where a witness volunteers a statement not respon- sive to the question, a motion to rule out such testimony should be sustained. But a motion to take from the jury an entire answer as unresponsive is properly overruled, where a part of the answer is directly responsive and the remainder is not prejudicial. Brandon v. Railway, 17 C C. 705, 8 C. D. 642. Railway v. Gorsuch, 8 C. C. (N.S.) 297, 18 C. D. 468. ^240 METZLER'S OHIO TRIAL EVIDENCE 310 (e) When a proper question is put to a witness and it is objected to before it is answered, the court will overrule the objection. For this reason, when the question is proper and the answer is improper, the party affected thereby should move that the answer be taken from the jury ; and on failure to do so, he can not afterward raise the question, Jennings v. Haynes, 1 C. D. 13, 1 C. C. 22. Anderson v. Allen, 19 C. C. (N.S.) 51. Circleville v. Sohn, 20 C. C. 368, 11 C. D. 103^ 106. 240. INSTRUCTION TO DISREGARD. (a) If incompetent evidence is admitted, it is error for the court to leave it with the jury when requested to rule it out. The court should upon request rule the evidence from the jury Avith instructions to disregard it entirely. The effect of in- competent evidence once admitted can not be done away with, except by such a charge to the jury as will enforce this rule. State V. Geiger, 70 0. S. 400. Ilcnkle Y. McCliire, 32 0. S. 202. (b) The improper admission of evidence is not regarded as constituting prejudicial error where the court subsequently excludes the evidence and directs the jury to disregard it. And it is not material whether the evidence is excluded on motion of the party aft'ected or by the court sua sponte. Mimms v. State, 16 0. S. 221. Klein v. Thompson, 19 0. S. 509, 571. Hoppe V. Parmalee, 11 C. D. 24, 20 C. C. 303. Railway v. Litz, 6 C. D. 285, 18 C. C. 646. (c) Unless it is evident that the jury failed to follow the instructions given to disregard the evidence, or it otherwise appears that prejudice resulted therefrom to the party com- plaining, the judgment will not be reversed on account of the error committed in admitting such evidence. Railroad v. Criss, 7 C. D. 632, 15 C. C. 398. Martin v. State, 9 C. D. 621, 17 C. C. 406. McGuire v. State, 3 C. C. 551, 2 C. D. 318. (d) The admission of incompetent evidence in a criminal case over the objection of the accused is cured by proper in- structions unless they were disregarded. And such evidence 311 OBJECTrONS AND EXCEPTIONS §240 may be withdrawn fi-om the jury at any time before the case is finally submitted. Chicko V. State, 24 C. C. (X.S.) 570. (e) Admission of evidence in a case on the promise of the party to make it relevant by other evidence, which was not done, may be cured by directing the jury to disregard it wholly, unless prejudice is manifest. Such testimony is often prejudicial, as it must have some effect, notwithstanding the charge of the court to disregard it and the efforts of the jurors to obey. Martin v. State, 9 C. D. 621, 17 C. C. 40G. ^Yilson V. Barkalow, 11 0. S. 470, 473. See Preston v. Bowers, 13 O. S. 1, 13. (f) Where evidence is admitted and on motion is ruled out, but the grounds of the motion and the reason of the court for sustaining the same do not appear, there is no error in the ruling of the court if the evidence was introduced out of its order; for this is a matter within the discretion of the court. Circleville v. Solin, 11 C. D. 193. 20 C. C. 36S. Cf. Hills V. Liulwig, 40 O. S. 373. (g) A charge to the jury to disregard certain incompe- tent evidence cures error in admitting it, although the instruc- tion is based on the ground that it had become immaterial and not on the ground of incompetency. Trovision Co. v. Limmermaier. 4 C. D. 240, 8 (". C. 701. (h) AYhen a question is asked which seems to call for hear- say, objection may be made on that ground ; and the court should permit the objecting party to make a preliminary ex- amination of the witness as to his source of knowledge. And if his knowledge is hearsay, his testimony should be excluded. But if hearsay is not discovered until the cross-examination, it should be withdrawn from the jury. Turnpike Co. v. Hester, 12 C. C. 350, 5 C. D. 600. Toledo V. Meinert, 15 C, C. (X.S.) 545. Ward V. Railway, 16 C. C. (N.S.) 504, 27 C. D. 627. (1) If a question is ruled out on the objection of a party, he can not complain if the court rules out similar evidence already let in on his side against objection. When a ruling is §241 METZLER'S OHIO TRIAL EVIDENCE 312 made at the instance of a party, he can not complain when the court withdraws his evidence admitted contrary to such rul- ing; for the same principle is applicable to both sides of the case. Powers V. Railway, 33 0. S. 429. (j) Where the court ordered the jury to disregard five questions and answers in a deposition and some of them were competent, but only one exception was taken to the ruling on all, it was held that the exclusion was not ground of reversal. Miller V. Glcason, 10 C. D. 20, IS C. C. 374. (k) Where an answer of a witness is proper evidence in a case but not directly responsive to the question, the court may in its discretion refuse to take the answer from the jury if opportunity is given to cross-examine. Neifeld V. state, 3 C. C. (N.S.) 551, 13 C. D. 246. Cf. Nolle V. Hill, 2 Bull. 86, 7 0. D. R. 297. (1) Where evidence was ruled out by the trial-court, and a reviewing court holds that it was improperly ruled out, the latter court can not consider what weight the jury would have given such evidence as set out in the bill of exceptions, but it must reverse. Penn. Co. v. Mahoney, 22 C. C. 469, 12 C. D. 366, 378. 241. FORMS OF INSTRUCTIONS. (a) When the court states that a document offered in evidence is ruled out, and directs the jury not to consider "any testimony out of the case — that document or anything that relates to it," the jury is fully cautioned with regard to it ; and the court has done all that it can fairly be asked to do. Traction Co. v. Jennings, 7 N. P. (N.S.) 462, 19 O. D. 338. See Gilchrist v. Transportation Co., 21 C. C. 19, 11 C. D. 350. (b) Where the plaintiff in a personal injury case was permitted over the objection of the defendant to testify that he was a married man and had one child, it was held that the error was cured by the trial-judge's instruction that "no damage should be allowed because the plaintiff is married or has a family." Traction Co. v. Ward, 6 C. C. (N.S.) 385, 17 C. D. 761. 313 OBJECTIONS AND EXCEPTIONS §241 (c) Where evidence had been introduced concerninfr an injury not averred in the petition, and counsel for plaintiff subsequently asked the court to instruct the jury to disregard any claim made upon account of that particular injury, the court said to the jury: "Very well grentlemen, counsel for plaintiff requests that the testimony regarding plaintiff's deaf- ness be ^vithdrawn from your consideration." It was held that this was a suificient charge to disregard. Railway v. Stanton, 16 C. C. (N.S.) 397. CHAPTER XVII. REAL EVIDENCE. 242. Introductory. 243. General rule. 244. Illustrations. 245. View by the jury — Principles. 246. View in appropriation cases. 247. View in criminal ca-e-. 248. View in ditch cases. 249. Physical examination. 250. Photographs and diagrams. 251. Experiments before jury. 252. Experiments outside of court. 242. INTRODUCTORY. (a) There are three kinds or forms of evidence: (1) real evidence; (2) oral evidence: and (3) written evidence. These three subjects will be treated in the order named. 243. GENERAL RULE. (a) When the existence or observable qualities of a mate- rial object are in issue, or are relevant thereto, the court may allow the jury to inspect the object ; or if it can not be pro- duced, it may be shown by maps, models or pictures. This is Avhat is usually called real evidence, sometimes autoptic prefer- ence ; it includes all inspections except those of documents and other M^ritings. 244. ILLUSTRATIONS. (a) In a proceeding in bastardy, the bastard child may be exhibited to the jury as evidence of alleged paternity, and in corroboration of the testimony of the prosecutrix. But where a child tAvo years old is exhibited to the jury to show resem- blance to the defendant, a reviewing court will be reluctant to reverse on the weight of the evidence. Crow V. Jordon, 49 0. S. 655. Richard v. State, ex rel., 17 C. C. (N.S.) 51. 314 315 REAL EVIDENCE §244 (b) lu the record of a conviction for selling liquor to a minor, absence of proof that the accused knew of the minority is met by the fact tliat the jury saw him. Under the old law on competency of witnesses on account of color, the court de- cided the degree of color by inspection. Lowther v. State, 18 C. C. (N.S.) 192. Cf. Grille V. State, 9 C. C. 394, 6 C. D. 90. Gray v. State, 4 Oh. 353. (e) Where there was a dispute as to whether a string in evidence was or was not part of a wax-end. the jury was* allowed to decide it Ify inspection. And a knife was exhibited in a case as the instrument of the homicide. Martin v. State, 16 Oh. 364, 370. Wareham v. State. 25 0. S. 601, 605. Cf. Hirsch V. Cincinnati, 21 C. C. (N.S.) 561, 4. (d) The fact that between the first and second trials of a defendant who is charged with murder, the blade of the knife with which it is claimed that defendant stabbed the deceased was scraped for the purpose of obtaining a chemical analysis of the substance by which such blade w^as discolored, does not render such knife inadmissible in evidence at the second trial because of its changed condition if such change and its cause is described in full. Fabian v. State. 07 O S. 184, 1S8. (e) It is not error in a homicide case to exhibit to the jury the mutilated heart of the deceased as showing the char- acter of the incision therein as bearing on the cause of death. And a piece of scalp torn from the head by an accident, which had been preserved in alcohol, was shown to the jury; and it was held not prejudicial. Andv V. State, 2 O. App. 103, 19 C. C. (X.S.) 93, 26 C. D. 146. Holland Co. v. Juenpling, 2 O. App. 20, 21 C. C. (N.S.) 593, 25 C. D. 398. (f) In an action to recover for property destroyed by fire by a passing locomotive, sparks picked up along the track may be given in evidence if proved to have come from the engine in question. Railway v. McKelvey, 5 C. D. 561, 12 C. C. 426. §245 METZLER'S OHIO TRIAL EVIDENCE 316 (g) A plaster cast of a defective sidewalk was erroneously admitted in evidence where it was taken fourteen months after the accident, and there was no evidence of its correct- ness or that the sidewalk was then in the same condition. Williams V. Salem, 33 Bull. 148. (Ii) The introduction of a section of a wagon pole, the breaking of which led to the accident, constitutes evidence of negligence, when an examination of the part exhibited shows that it had been for a long time in bad condition. Walton V. Ensign, 6 C. C. (N.S.) 300, 17 C. D. 505. (i) The mere fact that exhibits offered in evidence are of considerable bulk or weight does not excuse a failure to attach them to the bill of exceptions or to properly mark them for identification on review on the weight of the evidence. State V. Hinkleman. 13 C. C. (X.S.) .321. 22 C. D. 1. Mulligan v. Railway, 8 C. D. 722, 16 C. C. 9. 245. VIEW BY THE JURY— PRINCIPLES. (a) The view^ by the jury of the property which is the subject of litigation, or of the place where a material fact occurred, which may be ordered in a civil action under Sec- tion 11448 of the General Code, is solely for the purpose of enabling them to apply the evidence offered upon the trial. Macliador v. Williams, 54 0. S. 344. Raihvav v. Gaffney, 9 C. C. 32, 6 C. D. 04. White V. Smythe, 24 C. C. (N.S.) 225, 27 C. D. 489. (b) So in an action for damages to abutting property on account of a change of grade of a street, a view is not for pur- poses of evidence, but solely to apply the evidence. Columbus V. Eidlingmeier, 7 C. C 136, 3 C. D. 698. Besuden v. Hamilton Co., 7 C. C. 237, 4 C. D. 575. (c) A justice may, in a proper case, send a jury to view premises, but the jury should not be sent if the premises are not in substantially the same condition as when the cause of action arose. Sell V. Ernsberger, 8 G. C. 499, 4 C. D. 100. 317 REAL EVIDENCE §247 246. VIEW IN APPROPRIATION CASES. (a) In an appropriation case the rule is the same. The impressions made on the minds of the jurors by a view of the premises are not of themselves evidence in the cause, and it is not error to refuse a charge that the impressions from a view is evidence, and better evidence than the testimony of wit- nesses which is in conflict therewith. Railroad v. Bolen. 76 O. S. 376. Traction Co. v. Dempsey, 9 N. P. (N.S.) 65, 21 O. D. 694. , (b) Where a jury in an appropriation case views the premises in question, and attorneys and representatives of both parties call to their attention, on such view, certain facts pertinent to the case, a verdict based on such facts will not be allowed to stand. Railway v. Salt Co., 9 C. C. (N.S.) 114, 19 C. D. 110. (c) Where all parties acquiesce in a court's instructions that the view of the premises is evidence in an appropriation case, it is impossible to include all the evidence in a bill of exceptions ; and a reviewing court can not, therefore, pass upon the weight of the evidence. Traction Co. v. Hutchinson, 23 C. C. (N.S.) 58. 247. VIEW IN CRIMINAL CASES. (a) The view of the premises where a crime has been com- mitted, provided for by Section 13658 of the General Code, is not for the purpose of giving evidence to the jury, i^:t is to enable them to understand and apply the evidence given in open court. However, where at the view, a juror asked questions in regard to the premises, it will not justify a reversal, when it does not appear that any answer was made. Reighard v. State, 22 C. C. 340, 12 C. D. 382. (b) Whether the view be a part of the criminal, trial or not, the defendant may waive his privilege to accompany the jury; fnd it is not error to permit the jury to view the prem- ises in the absence of the defendant if he waives the right or §248 METZLER'S OHIO TRIAL EVIDENCE 318 refuses to attend. The record should show that he was pres- ent or had the privilege of being present. Reighard v. State, 22 C. C. 340, 12 C. D. 382. Blythe v. State, 47 O. S. 234. Martin v. State, 9 C. D. 621, 17 C. C. 406. Cf. Hotelling v. State, 2 C. D. 366, 3 C. C. 630. (c) Where, upon a view of the place where the crime was committed, counsel for the accused and the prosecuting attor- ney caused measurements to be made and objects to be placed as nearly as possible in the relative positions they occupied when the crime was committed, and made experiments illus- trative of the manner in which it may have been done, the accused being present and at liberty to communicate freely with his counsel, indicates no objection to such proceedings, he should be deemed to have authorized the same. Jones V. state, 51 0. S. 331. Cf. Bender v. Buehrer, 8 C. C. 244, 4 C. D. 507. (d) On change of venue of a criminal ease, the trial-court is authorized by Section 13658 of the General Code, to send the jury to the county in which the crime was committed to view the locus criminis. Jones V. state, 51 0. S. 331. 248. VIEW IN DITCH CASES. (a) On an appeal to the probate court from the order and finding of a joint board of county commissioners determining that a proposed ditch is necessary and will be conducive to the public health, convenience and welfare, the jury, in exam- ining and determining the matter appealed from, may, under Section 6474 of the General Code, consider in evidence facts made known to them personally from an actual view of the premises. Williams v. Loekoman, 46 0. S. 416. Railroad v. Commissioners, 63 O. S. 23. Miller V. Weber, 1 C. C. 130, 1 C. D. 77. (b) It is not error for a probate court in a ditch improve- ment proceeding to refuse to send the jury back for a second view of the proposed outlet at the request of the land-owners not satisfied with the first view. Wood Co. V. Shinnew, 10 C. C. (N.S.) 554, 20 C. D. 158. 319 REAL EVIDENCE §249 (c) Under Section 6630 of the General Code, there are two legal sources of information to the jury upon which they may predicate their finding and verdict as to whether the ditch will be conducive to the public health ; one is the exam- ination made by them and the other is the testimony given on the further trial after the view. Miller v. Weber, 1 C. C. 130, 1 C. D. 77, 81. 249. PHYSICAL EXAMINATION. (a) It is within the discretion of a trial-judge to require an adverse party to submit to physical examination ; and the physician making such examination can not claim privilege, but may be required to testify as to the condition of said party. Sucher v. Burger, 13 N. P. (N.S.) 161, 22 0. D. 385. (b) In an action to recover for personal injuries, caused by the negligence of the defendant, the court has power to require the plaintiff to submit his person to an examination by physicians or surgeons, when necessary to ascertain the nature and extent of the injury. On the refusal of the plain- tiff to comply with such order, when properly made, the court may dismiss the action, or refuse to allow the plaintiff to give evidence to establish the injury. Turnpike Co. v. Baily, 37 O. S. 104. (c) The refusal of the court to order such an examination of the plaintiff will not be presumed to have been made on the ground of a want of power in the court to make the order; but, in the absence of any showing to the contrary, on the ground that, under the circumstances, the order ought not to have been granted. Turnpike Co. v. Baily, 37 0. S. 104. (d) The application for such order ought to be so made, as not unnecessarily to prolong the trial, or to prejudice the plaintiff in proving his case. Hence, where the application is not made until after the close of the plaintiff's pvidenee in chief and the commencement of the introduction of the de- fendant's evidence, and no reason is shown for the delay in §250 METZLER'S OHIO TRIAL EVIDENCE 320 making the application, it may be refused on that ground. It would be unjust to the plaintiff to require him to furnish such evidence against himself after his case is closed, and to which evidence he could not reply except by a successful appeal to the discretion of the court. Turnpike Co. v. Baily, 37 0. S. 104, 108. (e) It is not error in such a case for the court to refuse to charge the jury that the refusal of the plaintiff at any time after the close of the testimony on his behalf to allow an ex- amination of his person touching the injury by any competent physician and surgeon, affords a presumption against the claim of the plaintiff as to the character and extent of the injury. Turnpike Co. v. Baily, 37 0. S. 104. (f) In an action to recover damages for a personal injury, there is no valid objection to the exhibition of the injured part of plaintiff's body to the surgeon called to testify on be- half of plaintiff and in the presence of the jury ; and this is the rule, although there is no external and visible injury. Street Railway v. Findley, 46 Bull. 217. (g) "Where the defense of physical incapacity of the plain- tiff is asserted in an action for breach of promise to marry, it is within the discretion of the trial-judge to require the plain- tiff to submit to a physical examination. Sucher v. Burger, 13 N. P. (N.S.) 161, 22 0. D. 385. (h) A court can not order a physical examination of an accused; but when the defendant, while confined in jail, sub- mits without objection to a physical examination on behalf of the state, evidence of the result of such examination may be admitted in evidence. Jones V. state, 20 C. C. (N.S.) 542, 4. Angeloff V. State, 91 O. S. 361, 3. 250. PHOTOGRAPHS AND DIAGRAMS. (a) A photograph may be admitted in evidence when it appears to have been accurately taken, and is proved to be a correct representation of the subject in controversy or of some 321 REAL EVIDENCE §250 subject incident to it, which subject can not be produced, and the photograph is of such a nature as to throw light upon the disputed point. Railway v. DeOnzo, 87 0. S. 100. Varner' v. Varner, 16 C. C. 386, 9 C. D. 273, 276. (b) A photograph of premises where an accident occurred which appears to be substantially correct and which is used by witnes.ses on both sides in describing such premises in the presence of the jury, and introduced in evidence and submit- ted to the jury as an exhibit, must be regarded as evidence, and not merely upon the footing of a view of premises by a jury ; and it must be made a part of the bill of exceptions. Hohly V. Sheely, 11 CD. 678, 21 C. C. 484. Cf. Eailroad v." Waterworth, 11 C. D. 621, 21 C. C. 495. Coal Co. V. Moherman, 9 C. C. 544, 6 C. D. 437, 440. (c) In an action upon a policy of insurance against loss by lightning where the issue is whether the building was de- stroyed by lightning or by a windstorm, it is not reversible error for the trial-court to exclude photographs which repre- sent collapsed buildings situated many squares away from the property involved in the ease on trial, especially if the record does not show that such buildings were in the path of this particular windstorm. Insurance Co. v. Ice Manufacturing Co., 28 0. C. A. 273, 30 C. D. 167. (d) A photograph of a testator, taken at or near the time his will was executed, may be a useful and competent item of evidence in an action to set aside the will ; but it is not preju- dicial error to sustain an objection to the introduction of such a photograph which was taken eight or nine years prior to the execution of the will or codicil which is under attack. Eogers v. Monroe, 26 C. C. (NS.) 193. Cf. Varner v. Varner, 16 C. C. 386, 9 C. D. 273. Hohly V. Sheely, 21 C. C. 484, 11 CD. 678, 83. (e) A photograph of the testator is competent in a will case, where evidence has been introduced as to his slovenly appearance which is denied by the defense; and the authen- ticity of the photograph has been established and also the fact that \: resemblod the testator as he appeared at about the time of the execution of the will. Ware v. Rlocum, 26 C C (N.S.) 317, 27 C D. 348. METZLEU'S TRIAL EV. — 11 ^250 METZLER'S OHIO TRIAL EVIDENCE 322 (f) When a bill of exceptions contains the film of a mov- ing picture which was reproduced in the trial-court, a review- ing court has power to order a reproduction of the same be- fore it, by 1 competent expert, this course being a method of unfolding the exhibit so as to make it visible to the review- ing court. Duncan v. Kiger, 6 0. App. 57, 27 0. C. A. 422, 28 C. D. 299. (g) Photographs by the Roentgen or X-ray process are admissible to show the nature of an injury. But they should be properly identified as those taken of the plaintiff before they can be admitted as evidence. Railway v. Hobart, 13 C. C. (N.S.) 592, 22 C. D. 154. Tish V. Welker, 5 O. D. 725, 7 N. P. 472. (h) Exhibits of X-ray pictures which were offered in evi- dence and as to which a witness was examined and cross-ex- amined, and which were shown to the jury and referred to by counsel on both sides as being in evidence, will be regarded by a reviewing court the same as if formally offered in evidence, although not marked as exhibits in the case. But absence of the exhibits would probably prevent a reviewing court from considering the question of the weight of the evidence. Commissioners v. English, 19 C. C. (N.S.) 566, 25 C. D. 246. (1) A picture of a device need not be accurate or exact. If it shows some matter directly bearing upon the subject under investigation and will aid the jury, it may be admitted with an explanation of how it differs from that which is being investigated. Provision Co. v. Hague, 20 C. C. (N.S.) 34. (j) In a personal injury case, the plaintiff may, in order to show that he had skill as an acrobat before his injury, in- troduce pictures or diagrams which are proven to correctly represent his feats and are such as will aid the jury to under- stand the testimony describing such feats. Railway v. DeOnzo, 87 0. S. 109. (k) In an appropriation proceeding, the land-owner may show that the land sought to be appropriated ha-s been sub- divided into lots for sale, and is more valuable than if sold by 323 REAL EVIDENCE §251 the acre, or for other purposes ; and in that connection an un- recorded plat or diagram showing the manner in which the tract has been divided and how such subdivision is affected by the appropriation is admissible, not as a valid town plat, but as a scheme or plan for sale affecting the value of the property. Railway v. Longwortli, 30 0. S. 108. Railroad v. Perkins, 22 C. C. 630. 12 C. D. 676. See Daugherty v. O'Connell, 12 Bull. 261. 251. EXPERIMENTS BEFORE JURY. (a) "Where, by consent of both parties, the jury is sent to the place of accident to witness experiments by running a train over the crossing under conditions practically the same as at the time of the accident, the information so obtained is evidence; and a charge to that effect is proper. The experi- ments were necessarily of the same probative character as if made in open court. Schweinfurth v. Railway, 60 0. S. 215. Cf. Railway v. Hudson, 22 C. C. 586, 12 C. D. 661. (b) The refusal of the court to allow such an experiment to be made in the presence of the jury, but without the con- sent of both parties, is not error. Railway v. Parker, 9 C. C. (N.S.) 28, 19 C. D. 1. Schweinfurth v. Railway, 60 0. S. 215, 229. Railroad v. Bolen, 76 0. S. 376, 391. (c) It is competent for the parties by agreement to exhibit to the jury, when viewing premises, the operation of the ma- chinery by which the injury was occasioned. And in an ac- tion by an employe on account of injuries received, it is com- petent to offer in evidence for illustrative purposes a model substantially representing the main parts of the machine in which he was injured. Devereaux v. Thornton, 4 Bull. 355, 4 O. D. R. 449. Reeves Bros. Co. v. Cochli, 6 0. App. 32, 26 C. C. (N.S.) 372, 28 C. D. 397. (d) It is competent to admit a dictograpli in evidence with an explanation of the scientific principles upon which it operates and a demonstration of the instrument ir. operation, notwithstanding the one so used is not the identical instru- ment used in the detection of the defendant. Andrews v. State, 15 C. C. (N.S.) 241, 23 C. D. 564. §252 METZLER'S OHIO TRIAL EVIDENCE 324 (e) As to what is a sufficient bill of exceptions for review- on the weight of evidence, when illustrations and demonstra- tions by models of machinery were made before the jury, see the case cited below, which was remanded by the supreme court to the circuit court with directions to consider the bill. (75 0. S. 608.) Rubber Co. v. McCKirg, 6 C. C. (N.S.) 556, 17 C. D. 493. 252. EXPERIMENTS OUTSIDE OF COURT. (a) A person shot at through a window having testified to identifying his assailant by the pistol flash, and other wit- nesses having testified to experiments at the same window with pistol flashes to show the possibility of such identifica- tion, the prisoner is entitled to show similar experiments with different results, made in another place but like circumstances. Smith V. State, 2 0. S. 511. (b) In an action for personal injuries, evidence in the nature of the results of an experiment with the same kind of a train at the same place and with a similar crew, is not demonstrative or controlling evidence, particularly where the conditions are not exactly the same. Railway v. Hudson, 22 C. C. 586, 12 C. D. 661. Cf. Schweinfurth v. Railway, 60 0. S. 215. CHAPTER XVIII. WITNESSES. 25o. Modes of taking testimony. 254. Tes-timony by aflidavit. "255. Testimony by deposition. 2o6. Exceptions to depositions. 257. Power of notary taking depositions. 258. Xumber of witnesses. 259. Testimony of accomplices. 260. Either of two witnesses. 261. Separation of witnesses. 2G2. Limitation of number. 253. MODES OF TAKING TESTIMONY. (a) The testimony of witnesses maj' be taken (1) by affi- davit, (2) by deposition, or (3) by oral examination. An affidavit is a written declaration under oatli made -without notice to the adverse party ; a deposition is a written declara- tion under oath, made upon notice to the adverse party ; and oral testimony is that delivered from the lips of the witness. Sections 11521 and 11522, General Co:;o. (b) The general and most satisfactory mode of presenting evidence, not documentary, is by the testimony of witnesses who appear in court so that an opportunity is afforded for cross-examination, and some helpful inferences may be drawn fiom the a]ipearance and manner of the witness; a less satis- factory mode is by deposition where there is opportunity for cross-examination, although the witnesses do not ajij^ear in court; and the least satisfactory mode is by affidavit where there is neither the appearance of witnesses nor an oppor- tunity for cross-examination. State V. Budd, 65 0. S. 1, 5. C54. TESTIMONY BY AFFIDAVIT. (a) An affidavit may be used lo vorify a i)loa(liiig. to jjrove the service of the summons, notice, or other process in 325 §254 METZLER'S OHIO TRIAL EVIDENCE 326 an action ; or to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or npon motion, and in any other case permitted by laM\ An affidavit must contain a full statement of evidential facts, from which the court may draw its own conclusion. Section 11523, General Code. Brennen v. Cist, 9 0. D. 18, 6 X. P. 1. (b) Affidavits may be used only in matters incidental, and not for the purpose of trying issues which the parties are entitled to have submitted to a jury. In jury cases, the issues can not be tried upon affidavits even with the consent of the parties. Robinson v. Harrison, C 0. D. 701, 7 X. P. 273. (c) Where an alleged settlement and payment of a judg- ment sought to be reversed on error is denied, an issue is made which can not be properly tried on affidavits. Such issue sheuld be made by jiroper pleadings, and trial should be had upon evidence. Glass Co. V. Tillyer, 10 C. D. 300, 1!) C. C. 635. (d) Proceedings in contempt are not provisional remedies, but are special proceedings. The statute contemplates a trial on such evidence as is competent in ordinary trials before the court ; and affidavits can not be used. Effinger v. State, 11 C. C. 389, 5 C. D. 408. (e) The affidavit of a witness to the execution of a will made in connection with the admission of the will to probate, is not competent in a suit to break the will, where it does not appear that the witness is prevented by death or otherwise from being present. The statute provides that a certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead or have become incompetent since the probate, shall be admitted in evidence on the trial. Kettemann v. Metzger, 3 C. C. (X.S.) 224, 13 C. I). 61. Section 12084, General Code. (f) Although the statute permits the use of affidavits upon the hearing of a motion to dissolve an injunction before 327 WITNESSES §255 a judge of the common pleas court sitting in chambers, the oral testimony of Avitnesses is competent upon a hearing of that character. State V. Budd, Go 0. S. 1. 255. TESTIMONY BY DEPOSITION. (a) A deposition may be taken at any time after service of summons upon the defendant in the action, but it can be used on the trial only in the cases prescribed in Section 11525 of the General Code; and the deposition of any witness, whether a party to the action or not, may be so taken. See Section llo26. General Code. In re Rauh, 65 O. S. 128. Meader v. Toot, 11 C. C. 81, 5 C. D. 61. (b) The deposition of a witness may be used only when it is made to appear to the satisfaction of the court that he does not reside in, or is absent from, the county where the action or proceeding is pending, or, by change of venue, is sent for trial; or that he is dead, or from age, infirmity, or imprison- ment, is unable to attend court; or that the testimony is re- quired voon a motion, or where the oral examination of the witness is not required. Section 11525, General Code. (c) If specific objection is made, a mere professional state- ment of counsel had better not be taken to prove that a resi- dent witness, whose deposition is offered, is sick and unable to attend; but if such proof is allowed, an objection to the ad- mission of the deposition does not go to the statement of counsel, and the mode of proof is therefore waived. Murdock v. McXeely, 1 C. C. 16, 1 C. D. 0. (d) Testimony taken in an action or ju-oceeding. on tlie order of a court, by a referee, master commissioner, or special master commissioner, subscribed by the witness, and reported to the court by the officer, may be used as a deposition taken in the case. Section 11527, Gon9, 4 C. D. nOO, 1. §262 METZLER'S OHIO TRIAL EVIDENCE 338 (c) The trial-court may exercise a reasonable discretion in the limitation of the number of witnesses who may be called in proof of a fact, even though that fact may determine the issue. A trial sometimes becomes a contest as to which side can overwhelm the other with the larger number of wit- nesses. A court of justice that has no power to regulate such exhibitions is hardly worthy of the name. Hupp V. Boring, 8 C. C. 259, 4 C. D. 560, 1. (d) It is M^ithin the discretion of the trial-court to limit the number of witnesses to six on a side as to the mental condition of a person, and refuse to hear cumulative testi- mony on the same facts and questions by thirteen other persons. (For the limitation on number of witnesses on character, see Character in Index.) Bird V. Young, 56 O. S. 210, 23. (e) In a case for the appropriation of property in the probate court, if more than three witnesses are examined by either party on the same point in the same case, the judge may tax the costs of such additional witnesses to the party calling them. This statutory provision is intended as a dis- couragement to the calling of a multiplicity of witnesses^ Section 11056, General Code. Kailroad v. Bolen, 76 O. S. 376, 93, CHAPTER XIX. COMPETENCY OF WITNESSES. 2(1.'}. (General rule. 2()4. Competency in criminal cases. 265. Religious belief. 266. Privileged communications — Clergymen. 267. Privileged communications — Physicians. 268. Privileged communications — Attorneys. 269. Of husband and wife — Civil cases. 270. Of husband and wife — Criminal cases. 263. GENERAL RULE. (a) All persons are competent witnesses except those of unsound mind, and children under ten years of age who ap- pear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of re- lating them truly. Section 11493, General Code. (b) A person affected with insanity is admissible as a witness, if it appears to the court, upon examining him and competent witnesses, that he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue. State V. Brown, 2S O. D. 21.3, 20 N. P. (X.S.) .3S.>, .308. (c) A person who has been committed to a hospital for the insane on the ground of insanity, is competent to testify as to facts witnessed by him while confined in the hospital, such as a fatal assault by a guard upon another inmate, if such witness has the understanding required by the preceding rule. State v. Brown, 20 N. P. (N.S.) 385, 28 0. D. 213. (d) An objection to the competency of a witness on the ground of his mental incapacity does not require that the 339 ^264 METZLER'S OHIO TRIAL EVIDENCE 340 court stop the trial at that point and immediately institute an inquisition as to the mental capacity of the witness. Williams V. state, 11 C. C. (N.S.) 4, 20 C. D. 342. (e) "When at the time the action was brought, a witness M^ould have been incompetent, but an amendatory law in force at the time of the trial makes him competent, the law in force at the time of the trial governs the question. Nor is such law so applied liable to the objection of being retroactive within the prohibition of the constitution. John V. Bridgman, 27 0. S. 22. (f) The exclusion of a witness can not be assigned for error unless the record shows on what ground he was re- jected. But where a witness offered is improperly rejected by the court, as incompetent to testify in the case, it will be held by a reviewing court that the party offering the witness has been prejudiced by his exclusion, though the facts he was expected to prove are not shown by the record. It seems, however, that the court may require a statement of what is expected to be proved by the witness. Armstrong v. Clark, 17 Oh. 495. Wolf V. Powner, 30 O. S. 472. Hollister v. Reznor, 9 0. S. 1, 8. 264. COMPETENCY IN CRIMINAL CASES. (a) No person shall be disqualified as a witness in a crim- inal prosecution by reason of his interest in the event thereof, as a party or otherwise, or by reason of his conviction of crime. But such interest or conviction * * * may be shown for the purpose of affecting the credibility of such witness. (See exceptions for husband and wife in criminal cases in Privileged Communications.) See Section 13659, General Code. (b) The fact that an accomplice has committed perjury on a former examination touching the same subject-matter, even where he admits the fact upon his present examination, affects only his credit, and does not render him incompetent, or necessarily render his testimony incredible. Brown v. State, IS O. S. 496. Mitchell V. State, 21 C. C. 24, II C. D. 446, 452. 341 COMPETENCY OF WITNESSES § 2G4 (c) On the trial of indictments, complaints, and the pro- ceedings against a person charged with an offense, such per- son at his own request shall be a compcti'iit \.itnco.s. No person shall be compelled in any criminal case to be a wit- ness against himself; but his failure to testify may be con- sidered by the court and jury, and may be the subject of comment by counsel. Section 13661, General Code. Section 10, Art. 1, Constitution, Jan. 1, 1913. See State v. Morrow, 90 0. S. 202. See Parker v. Dover, 18 N. P. (N.S.) 465. (d) The former law was a part of Sec. 13661 of the Gen- eral Code, and was as follows: "The neglect or refusal of such person to testify shall not create a presumption against him, nor shall reference be made to nor comment made upon such neglect or refusal." See Tate v. State, 76 O. S. 537. (e) An action to remove a prosecuting attorney from office is not a criminal prosecution ; it is, however, essentially penal, and the prosecuting attorney will, at his own request, but not otherwise, be a competent witness. Killits V. State, 19 C. C. 740, 10 C. D. 722. (f) It is not a violation of the constitutional provision that no person shall be compelled in a criminal case to be a witness against himself, for the trial-judge to require the accused, over the objection of his counsel, to stand up for better identification by the prosecuting witness. Coles V. State, 3 C. C. (X.S.) 420. 13 C. D. 313. Cf. Lindsey v. State, 69 O. S. 215, 223, (g) "Where an accused states that he was required against his will to take an oath and give testimony in his case be- fore the grand jury, he must aver how he was compelled to lake the oath or that he refused to take it, or that he claimed the privilege of refusing to testify, or what he testified to, or that his testimony was material on a fact necessary to be proved by the state, or that there was no testimony other than his own before the jury sufficient to justify the indict- ment. Lindsey v. State, 60 0. S. 215. Cf. State V. Co.x, 87 0. S. 313. §266 METZLER'S OHIO TRIAL EVIDENCE 342 (h) In a prosecution for being a known gambler, papers, race-horse slips and telegrams found at the time of arrest lying on defendant's desk are competent against him; and it is not a violation of the constitutional provision that ac- cused can not be compelled to be a witness against himself. Hirscli V. Cincinnati, 21 C. C. (N.S.) 561. 265. RELIGIOUS BELIEF. (a) Section 7 of the Bill of Rights declares that no per- son shall be incompetent to be a vv^itness on account of his religious belief; but nothing in this section may be construed to dispense with oaths and affirmations. (b) No one is rendered incompetent to be a witness on account of religious belief; nevertheless, every one offered as a witness in a court must take an oath or affirmation be- fore giving testimony. And an examination into his relig- ious belief may be made for the purpose of affecting his credibility. Clintdii V. State, 33 O. S. 27. Swan's Treatise, 117. Section 11520, General Code. Cf. Brink v. Stratton, 176 K. Y. 150. (c) A person who believes in the existence of a Supreme Being, Avho will, either in this life or tiic life to come, inflict punishment for false swearing, may be sworn as a witness. It was held under the Constitution of 1802 that it was not necessary that the witness believe in a future state of re- wards and punishment, if he considered an oath binding on his conscience. Clinton v. State, 3.3 0. S. 27. Brock V. Milii.iian, 10 Oh. 121. Easterday v. Kilborn, Wright 345. 266. PRIVILEGED COMMUNICATIONS— CLERGYMEN. (a) A clergyman or priest [shall not testify] concerning a confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs. Section 11494, General Code. 343 COMPETENCY Or WITNESSES § 2G8 267. PRIVILEGED COMMUNICATIONS PHYSICIANS. (a) A physician [shall not testify] concerning a communi- cation made to him by his patient in that relation, or his advice to his patient. But the physician may testify by ex- press consent of the patient; and if the patient voluntarily testifies, the physician may be compelled to testify on the same subject. Section 11494, General Code. (b) The statement of a physician to his patient in that relation that he is afflicted with a certain disease is advice within the meaning of this section. Railroad Trainmen v. Daley, 11 C. C. (N.S.) 464, 21 C. D. 391. (c) A communication by a patient to a physician may be not only by word of mouth, but also by exhibiting the body for his opinion, examination or diagnosis. There can be a waiver only by express consent of the patient or by his voluntarily testifying as to the matter. Ausdenmoore v. Holzback, 89 O. S. 381. (d) It is not competent to prove by a physician the com- .munications made to him by his patient in that relation; but such physician may testify as to facts which are within his knowledge independent of such communications. He may testify as to the condition and state of health of his patient, as well as the treatment by him prescribed for his patient. Insurance Co. v. Howie, 68 0. S. 614. (e) When the trial-judge has required a party to submit to a physical examination, the physician making such exami- nation cannot claim the privilege, but may be required to testify as to the condition of such party. Sucher v. Burger, 13 N. P. (N.S.) 161, 22 0. D. 385. 268. PRIVILEGED COMMUNICATIONS— ATTORNEYS. (a) An attorney [shall not testify! concerning a com- munication made to him by his client in that relation, or his advice to his client. But the attorney may testify by express R 268 METZLER'S OHIO TRIAL EVIDENCE 344: consent of the client; and if the client voluntarily testifies, the attorney may be compelled to testify on the same subject. Sfction 114!)4, Gt'noral Code. McKdvey V. McKelvey, 23 C. D. Il7, 14 C. C. (N.S.) 331, 332. (b) This section is applicable only where the communica- tion is of such a character that it would not have been made except for the relation of attorney and client. Smart v. Lodge, 6 C. C. (N.S.) 15, 17 CD. 273. (c) Communications made by a client to his attorney with a view to professional advice or assistance are privileged; and courts will not require nor permit them to be divulged by the attorney without the consent of his client. But if a party offers himself as a witness and gives evidence generally in the case, he thereby loses this privilege and consents to the examination of his attorney touching such communica- tions as are pertinent to the issue. At whatever stage of the trial a party offers himself as a witness, he may on cross- examination be interrogated as to such communications; and they may be proved by the attorney either as evidence in chief or for the purpose of impeachment. King V. Barrett, 11 O. S. 261. (d) In a criminal case for seduction, the defendant can- not, without the consent of the prosecuting witness, prove by her attorney admissions made by her in consultation con- cerning a civil action pending between her and the defend- ant. The admissions so made are privileged notwithstanding the fact that her mother was present at the consultation. Bowers v. State, 20 f). S. 542. (e) A lawyer is not privileged from testifying in a case against his client as to a conference between him and his client, in which the future wrong-doing of his client Avas discussed; nor as to facts affecting the client, but derived from outside sources. Cxolner v. State, 10 C. C. (N.S.) 317. Tvogers v. Dare, Wriglit 136. (f) AYhere the accused in a criminal trial becomes a wit- ness in his own behalf, he cannot be compelled on cross- 345 COMPETENCY OF WITNESSES §268 examination to disclose the confidential communications be- tween himself and his attorney; nor can such disclosures be required of the attorney Avithout the consent of the accused. It is the privilege of the accused to have such communica- tions protected from compulsory disclosure, and it is not waived by his becoming a witness. Section 11494 (Par. 1) does not apply to criminal cases. Duttenhofer v. State, 34 0. S. 91, 95. (g) "Where a report of an accident was made to a com- pany's claim agent by the conductor and motorman, which report was made for the information of the claim agent and for use of counsel in case of suit, and such report was turned over to such counsel, it is a privileged communication. Ex parte Schoepf, 74 0. S. 1. (h) An attorney who drew the will of a decedent, but who performed no other services, is not debarred from testi- fying as to conversations occurring between them not in con- nection with the drawing of the will. Foltrup V. Schloemcr, 13 C. C. (X.S.) 473, 23 C. D. 467. (i) And where a testator procures his attorney as a sub- scribing witness to his will, he thereby expressly consents that such attorney may testify as fully as any other subscribing witness, and thereby waives the exemption in the provisions of this statute. Baird v. Detrick, 8 O. App. 198, 28 O. C. A. 257. (j) If a testator who is an eminent lawyer prepares his own will and goes to attorneys to have it executed, it is said that the relation between the testator and such attorneys is not that of attorney and client; and accordingly, information which is given by the testator to such attorneys is not privi- leged. Ewalt V. Ames, 6 0. App. 374, 29 C. D. 133, 27 O. C. A. 465, 475. (k) The statements of one accused of crime made to one whose regular employment is practicing law before justices of the peace, and whose aid and counsel are sought as such attorney or counselor, such statements being made in answer to the inquiries of such adviser as to what the facts con- R 269 METZLER'S OHIO TRIAL EVIDENCE 346 cerning the alleged offense were, are privileged communica- tions although the witness had not been admitted to practice in the courts of record of the state. Benedict v. State, 44 O. S. 679. Contra, State v. Buikliardt, 3 Bull. 845, 7 0. D. R. 537. 269. OF HUSBAND AND WIFE— CIVIL CASES. (a) Husband or wife [shall not testify] concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness. The rule shall be the same if the marital relation has -ceased to exist. Section 11494, General Code (Par. 3). (b) A husband or wife cannot testify as to the contents of a written paper handed by one to the other, and examined and signed in the presence of each other during coverture, unless it is done in the known presence or hearing of a third person competent to be a witness. Dick V. Hyer, 94 0. S. 351. (c) Under this statute, husband and wife are competent witnesses for or against each other in civil cases, except as to the communications and acts therein specified. A married woman called as a witness may testify to all matters within her knowledge, except as stated in the statute, Westerman v. Westerman, 25 O. S. 500. Howard v. Brower, 37 O. S. 402. Bean v. Green, 33 O. S. 444. (d) Where a wife was living with her parents separate from her husband, and the question was whether she was there by the wrong of the hu.sband or the ])a rents, letters written by her during such separation, in which she ad- dresses him as her dear husband, are competent to show the condition of her feelings toward him. The letters could not be regarded as a communication within the object or purpose of the statute. Holtz V. Dick, 42 O. S. 23, 27. 347 COMPETENCY OF WITNESSES §269 (e) Evidence that a third person was present, and known to be present, at the time of making such communications or doing such acts, is for the court and not for the jury ; and, on error, will be presumed to have been given to the court unless the contrary appears. Westernian v. Westerman, 25 0. S. 500. (f) The reason for the exclusion ceases when the husband and wife show that the communication is not of a confiden- tial nature by making it in the known presence of a third person competent to be a witness, although such person is not living at the time of the trial. And the husband or wife who is called to prove a communication or act is competent to testify to the known presence of a third person. Sessions v. Trevitt, 39 0. S. 259, 267. Morgan v. Bartlette, 3 C. C. 431, 2 C. D. 244. Sieving v. Seidelmeyer, 4 Bull. 213, 7 0. D. R. 609. McCague v. Miller, 36 0. S. 595. (g') The testimony of a wife that her husband turned over his wages to her, though made when no third person competent to be a witness was present, cannot be prejudicial to the adverse party where there was no dispute about the matter, and the husband testified to the same effect. Railway v. Waterwortli, 21 C. C. 495, 11 CD. 621. (h) In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefor, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be a witness was present. Woodbury v. Bollmeyer, 20 C. C. (N.S.) 113. (i) Where words defamatory of the character of a mar- ried woman are published in the presence and hearing of her husband, he is a competent witness to prove the speaking of the words in an action of slander brought by the husband and wife. Duval V. Davey, 32 0. S. 604. Cf. Schutter v. Williauis, 1 W. L. J. 319, 1 O. D. K. 47. §270 METZLER'S OHIO TRIAL EVIDENCE 348 (j) In an action against a married woman and others at a time when her husband Avas incompetent to testify for or against her, he was nevertheless a competent witness for a co-defendant, if the case was one in which separate judg- ment might be rendered. Edwards v. Edwards, 24 0. ,S. 402. (k) Declarations of a wife in her dreams and not in the known presence of a third person competent to be a witness are not admissible to show injury to feelings by a libel. And it will be presumed on error that it happened at night and that no third person was present. Gazette Co. v. Grooms, 21 Bull. 292, 10 0. D. R. 489. (1) Where the question is whether there was a common- law marriage, either party is a competent witness to prove the agreement. After the matrimonial status is fixed by cohabitation, the parties come under the rule excluding cer- tain communications and acts. Umbenhour v. Umbenlioiir, 12 C. C. (N.S.) 289, 21 C. T>. 317. (m) The parties in an action for divorce or alimony, not- withstanding their marital relation, shall be competent to testify in such actions and proceedings to the same extent that any other witness might. See Section 11988, General Code. 270. OF HUSBAND AND WIFE— CRIMINAL CASES. (a) Husband and wife shall be competent witnesses to testify in behalf of each other in all criminal prosecutions, and to testify against each other in all actions, prosecutions, and proceedings for failure to provide for, neglect of, or cruelty to, their child or children under sixteen years of age. Such * * * relationship may be shown for the purpose of affecting the credibility of such witness. Husband or wife shall not testify concerning a communi- cation made by one to the other, or act done by either in the presence of each other during coverture, unless the com- munication was made or act done in the known presence or -.' aring of a third person competent to be a witness, or 349 -COMPETENCY OF WITNESSES §270 [unless] in case of personal injury by either the husband or wife to the other, or [unless] in case of the failure to pro- vide for, or the neglect or the cruelty of either to their children under sixteen years of age. The rule shall be the same if the marital relation has ceased to exist; but the presence or Avhereabouts of the hus- band or wife shall not be construed to be an act under this section. Section 13659, General Code. State V. Orth, 79 0. S. 130, chan'ged by amendmetit. (b) The wife of one accused of a crime may testify in favor of her husband and prove an alibi, even though no one else was present. And in the trial of a husband upon the charge of having committed a robbery upon his wife, the latter is a competent witness for the state, and may testify to every- thing which occurred at the time and place of the alleged robbery. State v. Payton, 21 Bull. 337, 10 O. D. R. 826. State V. Smith, 7 N. P. 72, n 0. D. 749. (c) When the husband or wife of a person on trial for crime, is called as a witness by and in behalf of such person, such witness occupies the same position that any other com- petent witness does, and may be cross-examined by the prose- cuting attorney in the same manner as might be done, if he or she was not the husband or wife of the person on trial, except only as to confidential communications or acts as pointed out in the statute. And if the direct examination violates the statutory provision and no objection is made, tlie cross-examination may go to further particulars. Haberty v. State, 8 C. C. 202, 4 C. D. 4G2, 3. (d) Letters from husband to wife strongly tending to prove marriage relation between them, when produced by a third party at tlie trial of tlic liusband for l)igamy, to which third person they had been given by the wife, will not be privileged under the statute, but are competent evidence against the husband. Wlialon V. state, 12 C. C. 584, 5 C. T). 4^,8. Cf. State V. Bates, 4 N. P. (N.S.) 502, 17 0. D. 301. §270 METZLER'S OHIO TRIAL EVIDENCE 350 (e) Letters written by one accused of incest upon his daughter, addressed to his wife and properly in the posses- sion of a third person, who produces them with nothing to show that they had ever been delivered to the wife, and the only part prejudicial to the accused being addressed to the daughter, are properly admitted in evidence on behalf of the state. Lowther v. State, 2 C. D. 685, 4 C. C. 522, (f) The wife is a competent witness to testify to the non- access of her recreant husband in a criminal case against the putative father of her illegitimate child, for failure to pro- vide said child with necessary and proper food, clothing and shelter, under the provision of Section 12970 of the General Code. State V. Bone, 25 C. C. (N.S.) 447, 27 C. D. 472. is) Upon indictment of a husband for perjury and after divorce, the wife may testify against her husband as to facts, independent of the coverture, and not acquired in conjugal confidence, nor by reason of the marital relation. State V. Clark, 10 Bull. 202, 16 Bull. 178. (h) Where the woman with whom the defendant was living as his wife at the time of the murder of which he is accused, is shown to have been previously married to an- other man who was still living and from whom she had not been divorced, it is competent for the state to call her as a witness against the defendant. Lynch v. State, 5 0. App. 16, 23 C. C. (N.S.) 230, 27 C. D. 189. CHAPTER XX. COMPETENCY OF PARTIES. 271. General rule. 272. Objection to incompetency. 273. Necess«iry parties. 274. Parties not adverse to representative. 275. Agents not parties. 276. Heirs not parties. 277. Other witnesses not parties. 278. Party against executor. 279. Party against guardian. 280. Party against otlier representatives. 281. Party against assignee. 282. Assignor against representatives. 283. First exception. 284. Second exception. 285. Third exception. 286. Fourth exception. 287. Fifth exception. 288. Sixth exception. 289. Seventh exception. 290. Eighth exception. 291. Ninth exception. 292. Reason and spirit clause. 293. Compelling a party to testify. 271. GENERAL RULE. (a) A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, frrantee, assignee, devisee, or legatee of a deceased person. Section 11495 (par. 1), General Code. (b) This section is in the nature of a statute against frauds and perjuries. The testimony of tlie i)arty to the action, though generally admissil)lo. is excluded wiien it re- lates to transactions between liiiii jiikI a deceased person, against whose estate he asserts a claim. It was considered 351 §272 METZLER'S OHIO TRIAL EVIDENCE 352 that there would be a temptation, in such a case, to fraud and perjury, against which protection should be given by excluding the testimony. Stevens v. Hartley, 13 0. S. 525, 531. Roberts v. Briscoe, 44 0. S. 506, 601. (c) In the practical application of this rule of exclusion, it is scarcely necessary to say that it has nothing to do with the question of competency or admissibility of the testimony, but relates solely to the competency of the party as a wit- ness. And equality of the parties to the suit is the object rather than the weighing in delicate scales the degree of interest the witness may have, leaving that to be considered as affecting his credibility. Hubbell V. Ilubbell, 22 O. S. 208, 221. Powell V. Powell, 78 0. S. 331, 335. Pvoberts v. Briscoe, 44 0. S. 506, 600. 272. OBJECTION TO INCOMPETENCY. (a) When a party is called to give testimony not permit- ted by any of the exceptions, an objection by the adverse party to the proposed testimony on the ground that it is incompetent is sufficient ; it is not necessary to object to the witness as incompetent. Farley v. Lisey, 55 0. S. 627. (b) Where testimony of a party is heard subject to a general objection to his competency because the adverse party is the executor of a deceased person, and it does not appear whether the events testified to occurred before or after the death of the testator, and the executor makes no motion to strike out the testimony, but presents counter-evi- dence, without further insisting on his objection, it will be presumed that the party is a competent witness upon the matters as to which he testified. Meier v. Herancourt, 8 Bull. 20, 6 0. D. R. 1164. (c) Judgment against an administrator will not be re- versed for error in permitting the adverse party to testify, no objection having been made to such testimony at the time, and there being enough to support the judgment without it. Young V. Langdon, 12 Bull. 246, 9 0. D. R. 367. 353 COMPETENCY OF PARTIES §273 273. NECESSARY PARTIES. (a) A party designed to be excluded from testifying by this section must be a real and not a mere formal and un- necessary party. He must be adverse in interest and not merely in his nominal status. And his incompetency as a witness arises not simply from standing in the position of a party, but because being opposite in interest, the adverse party is a guardian, or belongs to one of the classes named in the statutes. Baker v. Jerome, 50 O. S. 6S2, 89. Wolf V. Powner. 30 O. S. 472, 476. Baker v. Kellogg, 20 0. S. 663. (b) Both the party disqualified and the adverse party referred to must be parties to the record, and adversely interested in the determination of the issues of fact, and they must be so related to the action and the issues at the time of trial; but it matters not whether they stand upon the same side or opposite sides of the record. Hubbell V. Hubbell, 22 0. S. 208, 221. Powell V. Powell, 78 0. S. 331, 337. (c) A person not a necessary party cannot be excluded by the convenient process of making him a party, although the plaintiff claims under a former deceased owner. But if a person is a necessary party, although not in fact made a party, it is possible that the reason and spirit clause would exclude his testimony. Mathews v. Mackey, 18 C. C. (N.S.) 413. Ryan v. O'Connor, 41 0. S. 36S, 71. (d) Where a grantee holding the legal title to lands in trust for the grantor, and without the knowledge of the grantor conveys the lands to another upon the same trust, in an action by the grantor against the heirs of the second grantee to enforce the trust upon wliieh he took the legal title, it was held that the first grantee was not a necessary party; and lliat the first grantee Avas a competent witness for the first grantor against the heirs of the second grantee to establish the trust in the property. Ryan v. O'Connor, 41 0. S. 368. See VVilllam.s v. Longley, 3 C. C. 508, 2 C. I). 292. §275 METZLER'S OHIO TRIAL EVIDENCE 35^ (e) The provisions of this and related sections do not pre- vent a married woman from testifying as to a contract between herself and one who has since died, if the husband of such married woman, with her consent, has brought an action for the services of his wife, where such services were performed in furtherance of her husband's business, and in connection with her domestic duties. In such a case, the wife is not a necessary party. Hess V. Clutz, 8 O. App. 57, 28 O. C. A. 81, 29 C. D. 497. 274. PARTIES NOT ADVERSE TO REPRESENTATIVE. (a) Where a mortgagor died insolvent and no relief is sought against his estate, the sole question being between the several purchasers, as to Avhose land shall be first charged, either party claiming under his conveyance from the de- ceased mortgagor is a competent witness against the other. Sternberger v. Hanna, 42 0. S. 305. (b) Death of the agent who made a contract does not exclude the other party's evidence as to the contract. This section relates only to the death of principals; and the omis- sion of agents, a more numerous class, was evidently inten- tional. And to construe the reason and spirit clause as adding them would be judicial legislation. Bank v. Cornoll, 41 O. S. 401. Cochran v. Almack, 39 O. S. 314. (c) And where there are two parties, plaintiffs or de- fendants, claiming several interests under the same title or alleged state of facts, and the adverse party is a competent witness as against one of them, and incompetent as against the other, and the case is one in which separate judgments may be rendered, the testimony of such party may be re- ceived in evidence, but can be used and considered only as against the party as to whom the witness was competent. Hubbell V. Hubbell, 22 0. S. 208. 275, AGENTS NOT PARTIES. (a) An agent of a vendor who makes a sale of goods for l.is principal, is not rendered incompetent to testify as a 355 COMPETENCY OF PARTIES §277 witness to the circumstances of the transaction because of the decease of the vendee. Shaub V. Smith, 50 0. S. 648. (b) In an action by a corporation against an executor or administrator, the general manager of the corporation is not disqualified to testify to facts occurring before the death of such decedent. And the members of a fraternal order, which is a party to a case, are competent to testify against the adverse party who claims as an heir. Milling Co. v. Bunn, 75 O. S. 270. Cf. French v. Carkin, 30 C. D. 68. Foxhever v. Ked Cross, 14 C. D. 56, 2 C. C. (N.S.) 394. 276. HEIRS NOT PARTIES. (a) On the trial of an action on a promissory note brought by the administratrix of the estate of the payee against the administratrix of the estate of the maker thereof, the chil- dren of the payee, not being parties, are competent witnesses to testify against the defendant as to conversations had with the maker during his lifetime concerning his liability on the note and the consideration for the same, although such chil- dren are legatees or devisees under the will of said payee. Powell V. Powell, 78 0. S. 331. Cf. Rowland v. Griffiths, 3 Bull. 590, 6 0. D. R. 619. (b) In an action to recover real property, in which the plaintiffs relied upon a deed claimed to have been made to their father, since deceased, where the question was whether the deed had in fact been executed and delivered, the widow of the decedent, not being a party, is a competent Avitness to prove such execution and delivery, notwithstanding the rea- son and spirit clause ; and the fact that her right to dower in the premises may depend on the validity of the deed will make no difference. Keys V. Gore, 42 0. S. 211. Cf. Williams v. Longley, 3 C. C. 508, 2 C. D. 292. 277. OTHER WITNESSES NOT PARTIES. (a) Tn an action to marshal liens where the debtor and one of the creditors charged the other creditor Avilh usury. §278 METZLER's OHIO vr^iAL EV!~E^;c:: 356 it was held on appeal that the debtor, not being a party, could testify against the creditor charged with usury though the defense was made by the administrator of such creditor. Johnson v. Connable, 41 O. S. 178. (b) A grantor is not disqualified to be a witness in a con- test to reform a deed between the heirs of the grantee and his wife who claims that the deed was in trust for her. He is not a party and has no adverse interest. Thompson v. Thompson, 18 0. S. 73. (c) Where one of the four makers of a note, claiming to be a surety, having paid the balance due after the death of two of such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were sureties, the other remaining maker, not being a party to the action, is not incompetent under this section to testify as to the relation existing between the deceased and the plaintiff. Butt V. Worthington, 12 C. D. 775, 11 C. C. (N.S.) 371. 278. PARTY AGAINST EXECUTOR. (a) In an action brought by an executor to enforce a trust in land deeded by a father to his son, the son is incompetent to testify to matters which occurred before the death of his father. Paddock v. Adams, 56 0. S. 242. (b) It was held that where an executor as residuary legatee gave a bond conditioned to pay all the debts, the plaintiff in an action on the bond cannot testify to trans- actions wath the testator. The reason of the rule applies as where an executor is a party. Stevens v. Hartley, 13 0. S. 525. (c) It is not competent for a plaintiff, who is disqualified from testifying in the case by reason of the decease of the defendant, to offer in evidence against the executor the an- swer to a letter written by the decedent concerning the subject-matter of the suit, where the original letter is not 357 COMPETENCY OF PARTIES §^79 in court and the answer contains a self-serving declaration, and would, if received in evidence, be in effect permitting the plaintiff to testify. Tokrton v. Robinson, 13 C. C. (X.S.) 171, 23 C. D. 17!). (d) It has been held that on exceptions to an adminis- trator's account, the administrator may testify for eitlier party. But where an heir excepts to the account of an ad- ministrator who dies before the matter is heard and his executor files a similar account, the heir is incompetent to testify to facts which occurred before the death of the ad- ministrator. In re Raab's Estate, 16 0. S. 273. In re Runyan, 7 O. D. 236, 4 X. P. 335. 279. PARTY AGAINST GUARDIAN. (a) One who was injured through the negligence of em- ployes of an insane OAvner of a business is not competent to testify against the guardian of said insane owner in an action for damages on account of such injuries, where the appoint- ment of a guardian w^as not made until after the injury, though the insanity "existed before and dofondant had no knowledge of the facts of the case. Nolan V. Ilaberer, 3 O. App. 45, 21 C. C. (X.S.) 57, 26 C. D. 59. (b) A party to a suit is incompetent to testify as a Avit- ness when the opposite party is the guardian of an imbecile. The word ''insane" will include "imbecile," although tli'^ section as now amended leaves but the latter word. And such guardian in an accounting before the ])robate court is an incompetent witness to prove an alleged claim for services rendered by said guardian to and for said vard prior to the date of his appointment as guardian. Ross V. Todd, 2 C. D. 385, 4 C. C. 1. See McXicol v. Johnson, 20 O. R. 85. In TO Olivfr. X. P. (X.S.) 17S, 20 O. D. 64. (c) Where an action is l)rou<^lil by an infaiii Jlii'oi" 'i Ms next friend for recovery of damages on account of i>crs(iMal injuries, the infant is the party plaintiff and is not conipctctit § 280 METZLER'S OHIO TRIAL EVIDENCE 358 to testify where inbecility on the part of the defendant has intervened. Ransom v. Haberer, 13 C. C. (N.S.) 511, 22 C. D. 592. (d) Where the plaintiff in an action on a joint and several note is the guardian of an insane person, the maker of the note who is in default for answer, is not a competent witness for his co-defendant to facts in reference to a usurious agree- ment between the makers and payee of the note, which occurred prior to the appointment of such guardian. Baker v. Jerome, 50 0, S. 682. 280. PARTY AGAINST OTHER REPRESENTATIVES. (a) In an action by one executor or administrator against another, the parties are. adverse within the purview of this section, and neither is competent to testify against the other to any matter not within one of the exceptions contained in the section. Farley v. Lisey, 55 0. S. 627. Buckingliara v. Carter, 2 Disney 41. (b) AVhere a party to an action, being a non-resident of the county wherein the action is pending, causes his deposi- tion in the case to be taken and filed, and afterward and before trial the opposite party dies, and his personal repre- sentative is substituted in his place, such deposition is inad- missible in evidence on the trial, to the same extent as the oral testimony of the surviving party would be, if offered on the trial. St. Clair v. Orr, 16 O. S. 220. Neville v. Hamho, 1 Disney 517. Bettman v. Hunt, 12 Biiii. 286. (c) Parties defendant who are financially interested in the construction of a will, and whose rights will be affected by the decision of the court, are not competent to appear as witnesses against trustees of the estate. Miller v. Miller, 15 C. C. (X.S.) 481, 24 C. D. 43. (d) In an action for specific performance against the heirs of the vendor, and against his grantee who took the legal 359 COMPETENCY OF PARTIES § 281 estate with notice, it ^vas held that the i)hiintiffs were incom- petent to testify to facts occurring before the death of the grantor. Mosher v. Butler, 31 O. S. 188. (e) "Where A deeded land to B and he deeded it to his wife D through a trustee, and A's heirs sued D's heirs, claim- ing the deed was in trust for them, it was held that plain- tiffs and such heirs of A as were made defendants, but were identical in interest with plaintiffs, are not competent wit- nesses against D's heirs. Hubbell V. Hubbell, 22 0. S. 208. (f) But on application to reduce the year's allowance of a widow, a creditor may testify against the widow, although slie is administratrix of the estate; because when she appears to resist the effort to reduce the allowance, she does so as a creditor of the estate protecting her own claim and not as administratrix. In re Rahe, 12 0. D. 590. (g) And in an action by an administrator upon a promis- sory note made by two parties defendant, one of whom was surety, who alone sets up a defense, the principal is a com- petent witness for the surety. But w'here both signers of a note are makers, the rule is different. Bell V. Wilson, 17 0. S. 640. Baker v. Kellogg, 29 0. S. 603. Brinker v. Sebreiber, 9 Bull. 294, 8 0. D. R. 759. Baker v. Jerome, 50 0. S. 682. 281. PARTY AGAINST ASSIGNEE. (a) A person who, if a party, would be restricted in his evidence under Sec. 11495, when the ])r()|)ei-ty or thing is sold or transferred by an executor, administrator, guardian, trustee, heir, devisee or legatee, shall he restricted in the same manner in any action or i)roceeding concerning such property or thing. Section 11404 (par. 5), General Code. §283 METZLER'S OHIO TRIAL EVIDENCE 360 282. ASSIGNOR AGAINST REPRESENTATIVES. (a) A person who assigns liis claim or interest shall not testify concerning any matter in respect to which he would not, if a party, be permitted to testify. See Section 11494 (par. 4), Gfncral CoJ.e. See Myrea v. Walker, 9 0. S. 5.38 (old law). (b) In an action on a negotiable instrument by a trustee in bankruptcy against the administrator of decedent's es- tate, the bankrupt is not a competent witness for plaintiff to show a relation existing between him and decedent other than that appearing on the face of the instrument. Conett V. Squair, 3 0. L. R. 55S, 17 0. D. C"). (c) But in an action by the indorsee of a promissory note against the maker, the executor of the maker may compel the payee and assignor of the note to testify to facts that occurred prior to the death of the testator. The interest of an estate may urgently require that an executor or adminis- trator should waive wdiat belongs to him as a privilege. Roberts v. Briscoe, 44 0. S. 596, 602. Xeil V. Cherry, 3 W. L. M. 31, 2 0. D. R. 417. (d) In an action between executors or administrators of different estates, a person who has been the predecessor of one of the parties is not, on that account, incompetent as a witness against the adverse party, to testify to facts which occurred before the death of the latter's testator or intestate. Such a case is not within the reason or spirit of the provision of Section 11494 of the General Code which excludes the testimony of an assignor of a claim in certain cases. Banning v. Gotshall, 62 0. S. 210. 283. FIRST EXCEPTION. (a) [A party may testify to] the facts which occurred after the appointment of the guardian or trustee of an in- sane person, and in the other cases, after the time the de cedent, grantor, assignor, or testator died. Section 11495 (par. 1), General Code. 361 COMPETENCY v.." PARTIES §285 284. SECOND EXCEPTION. (a) When the action or i)roeeedin^ relates to a contract made through an agent by a person since deceased, and the agent is comiietent to testify as a witness, a party may testify on the same subject. • Section 11495 (par 2) Ccncral Code. (b) When the foregoing paragraph was somewhat differ- ent, it was said that the opposite party could call the agent, and then he himself could testify; that when all who know of a transaction are living and present to testify, the evi- dence of such transaction should not be lost because some one, who never was a competent witness to such matter, is dead. Iloyt V. Ileister, 2 Bull. (Supp.) 5, 7 O. D. R. 420, 425. Cf. Wclirmann v. rieecli, 7 C. C. (X.S.) 3(17, IS C. D. 12S. (c) In an action coming within the second exception, when the agent through whom it is claimed a contract was made by a person since deceased is himself a party, his testi- mony is subject to the same tests of competency that are applicable to the testimony of o'ther parties w^ho sustain the same relation to the issues; and where as a party, he is ad- verse in interest to one who claims or defends as devisee, he is not competent to testify as a witness against the devisee, either to his own agency, or to the alleged contract; nor, in such case, are other parties having a like adverse interest competent to testify to such matters, as against the devisee. Roberts v. Remy, 56 0. S. 240. 285. THIRD EXCEPTION. (a) If a party, or one having a direct interest, testifies to transactions or conversations with another party, the latter may testify as to the same transactions or conversations. Section 11405 (par. .3), General Code. (b) An administrator may testify against the adverse party. And where an adniini.strator in his own Ix-lialt" testi- fies to a certain conversation and an agreement hit wcimi his intestate and the o])i)()si1(' pafty. whieh was inateiial to Ihc §286 METZLER'S OHIO TRIAL EVIDENCE 362 issue, tlie other party may testify as to the same transaction and conversation, under the third exception to this section. Doughman v. Dougliman, 21 O. S. 658. Rankin v. Ihmnan, 38 O. S. 438. > (c) It is obvious that the interest of the testator's estate should be the paramount idea of the executor ; and the law contemplates that if he has knowledge that can be made to inure to the benefit of the estate, he will be ready to bear witness, though in so doing he must waive the privilege of excluding the opposite party from testifyiiig and open the door to his admission. Roberts v. Briscoe, 44 O. S. 596, 603. (d) In an action brought to recover a money judgment against the administrator of an estate, the widow of the intestate, or his heirs at law, are not necessary or proper parties thereto. And if on the application of the widow she is made a party defendant, and files an answer, setting up defenses to a judgment against the estate, and on behalf of the administrator testifies to transactions occurring before the death of the intestate, she is not a party to the action in such sense as Avould entitle the plaintiff to testify to the same transaction under the third clause of this section. Williams v. Longley, 3 C. C. 50S, 2 C. D. 202. 286. FOURTH EXCEPTION. (a) If a party offers evidence of conversations or admis- sions of the opposite party, tlie latter may testify concerning the same conversations or admissions. Section 11495 (par. 4), General Code. (b) Conversations and admissions concerning which a party may testify under the provisions of the fourth excep- tion are those orally made by him. This exception does not authorize him to testify concerning a written statement in the nature of a settlement between the parties that may be adduced against him on the trial. Jackson v. Ely, 57 O. S. 450. 363 COMPETENCY OF PARTIES §287 (c) III a proceeding to recover the concealed property of an estate, it i.s error to treat the defendant as a party to a civil action and therefore incompetent as a witness. Even if the section ajiplies, the defendant should be allowed to testify under exceptions three and four. Leonard v. State, ex rcl., 20 C. C. (N.S.) 340, 3 0. App. 313. Cf. Cotton V. Ashley, 7 C. D. 242, 13 C. C. 535, 538. 287. FIFTH EXCEPTION. (a) In an action or proceeding by or against a partner or joint contractor, the adverse party shall not testify to trans- actions with, or admissions by, a partner or joint contractor since deceased, unless they were made in the presence of the surviving partner or joint contractor. This rule applies Avith- out regard to the character in which the parties sue or are sued. Section 11495 (par. 5), General Code. See Baxter v. Leitli, 2S I). S. 84, decided under a former statute. (b) Under the fifth exception, in an action upon a promis- sory note, Avhen the survivor of two joint ])ayees and the administrator of the other are plaintiffs, an adverse party may testify to admissions made or acts done by either paj^ee in the presence of the survivor. TTarrison v. Neely, 41 0. S. 334. (c) The fifth exception renders inadmissible the evidence of the i)resident of a corj^oration as to a transaction between himself on behalf of such corporation and a deceased partner on ))elialf of the firm, which is the adverse party to such litigation. French v. Crrkin, 30 C. D. 68. Cf. Milling Co. v. Bunn, 75 O. S. 270. (d) But where a surviving partner brought an action on a note made to his firm against two makers as individuals and not as partners, and one of them is in default foi- an- swer and makes no defense, he is a ((niiitcfciif witness for the other as to transactions with the deceased partner. ■Rrinker v. Schreiber, Bull. 204. R O. D. B. 7r.O. Cf. Baker v. Jerome, 50 0. S. 082. §288 METZLER'S OHIO TRIAL EVIDENCE 364 288. SIXTH EXCEPTION. (a) If the claim or defense is founded on a book account, a party may testify that the hook is his account-book, that it is a boolc of original entries, that the entries therein were made by himself, a person since deceased, or a disinterested person, not a resident of the county. The book shall then be competent evidence; and [such book] may be admitted in. evidence in any case, without regard to the parties, upon like j)roof by any competent witness. Section 11405 (par. 6), General Code. See Chap. XXVI herein. (b) A book account to be admissible under this section must be a book of original entries made concurrently with the transactions by a person having knowledge thereof, and be corroborated by his testimony, if living and accessible. Kennedy v. Dodge, 10 C. D. 360, 19 C. C. 425. (c) Entries made but once a year for the whole year for services at so much a week for ten years are not admissible after the debtor's death, because not contemporaneous and not itemized; but the error is cured by proof that the debtor often saw the entries and assented to them. Bogart V. Cox, 4 C. C. 289, 2 C. D. 551. (d) A book of plaintiff's account of work done for de- ceased, with her evidence that it was such book and that the entries were made by her father as she gave him the items, and the father's evidence to the same effect, was held not competent in an actiou against an executor. McGowan v. Mock, 2G Bull. 265. (e) This section which permits a party to offer his books in an action on a book account does not apply in an action for money lent where the entry is for a huge sum. Such a transaction is not the proper subject of a book-account. Page V. Zehring, 6 Bull. 200, 8 0. D. E. 211. ITough V. Henk, 8 C. C. 3r,4, 4 C. D. 69. See Cram v. Spear, 8 Oh. 494. 365 COMPETENCY OF PARTIES §290 289. SEVENTH EXCEPTION. (a) If after testifying orally, a i>arty dies, the evidence may be i)rovcd by either party on a furtlier trial of the case, "whereupon the opposite party may testify to the same matters. Section 114!)5 (par. 7), General Code. Hoover V. Jennings, 11 0. S. G24 (old law). (b) This paragraph refers to a further trial of the same case. The testimony of an incompetent Avitness does not be- come competent upon the introduction of testimony of the defendant's intestate taken in a former action between the parties. And the former testimony of a deceased party can- not be introduced by the adverse i)arty and then contra- dicted, "when the introduction is for the uurpose of qualify- ing his own incompetent witness. Conett V. Squair, 3 0. L. R. .lOS, 17 O. 1). d"). (c) After trial at which both plaintiff and defendant testi- fied, a new trial was granted; then defendant died and his administrator was substituted as defendant. At the next trial the plaintiff, in order that he himself might testify under exception seven, first offered the testimony of defend- ant given at the first trial. The testimony was admitted, and plaintiff was allowed to testify. Matthews v. Heider, 22 0. D. 399. 290. EIGHTH EXCEPTION. (a) If a party dies and his deposition be offered in evi- dence, the opposite party may testify as to all competent matters therein. Reotion 1140.5 (par. 8), General Code. Hoover v, Jennings, 11 0. S. 624 (old law). (b) "Where a party's deposition is taken and he dies, and his executor refuses to off'er the d('i)ositi(m in cvidcnci'. thus excluding the adverse party as a witness, it is not misconduct for the attorney of such adverse partv to comment upnii it, if no reference is made to the contents of the deposition. Cof.riPr V. West, 3 Bull. 431, 7 O. T). K. 470. §291 METZUER'S OHIO TRIAL EVIDENCE 366 291. NINTH EXCEPTION. (a) Nothing in this section shall apply to actions for causing death, or actions or proceedings involving the valid- ity of a deed, will, or codicil. Section 11495 (par. 9), General Code. Wolf V. Powner, 30 0. S. 472 (old law). Mosher v. Butler, 31 0. S. 188 (old law). (b) An infant plaintiff in an action by his next friend for personal injuries, where defendant lias become insane, is not rendered competent as a witness by the exception to the statute which provides that nothing therein contained shall apply to actions for causing death. This exception was created to enable a defendant to testify in a case brought against him for causing the death of a person, where the administrator of the deceased is the adverse party. Ranson v. Haberer, 13 C. C. (X.S.) 511, 22 C. D. 592. (c) In an action brought against a trustee under a will to rescind a conveyance to a testator on the ground of fraud, the adverse parties are not incompetent to testify. Murdock V. McNeely, 1 C. C. 16, 1 C. D. 9. Cf. McNicoI V. Johnson, 29 0. S. 85 (old law). (d) An action by an administrator against a grantee to re- cover the value of lands conveyed by his decedent in fraud of creditors, which land the said grantee has conveyed to an innocent purchaser, is an action involving the validity of a deed, and the grantee is competent to testify generally. Doney v. Clark, 55 0. S. 294. (e) An action to enforce a trust is not an action involving the validity of a deed within the purview of this clause. The object of the suit is not to invalidate the deed, but to ascer- tain the nature of the estate it conveyed, give it effect ac- cording to the intention of the parties, and enforce their rights as determined by the application of the law to it. in the light of the circumstances under which it was made. Paddock v. Adams, 56 0. S. 242, 248. 367 COMPETENCY OF PARTIES §293 252. REASON AND SPIRIT CLAUSE. (a) And -when, a case is plainly within the reason and spirit of the next three preceding sections (11493 to 11-495 of tlie General Tode), tliough not Avithin the strict letter, their principles sliall be applied. Section 11405 (par. 9), General Code. (b) It -vvonld be difficult to say what is the scope of this clause in advance of cases as they arise. If a case is pro- vided for by the terms of either of the sections, no occasion can arise for invoking the spirit and reason of the statute to supply the omission of its letter or terms. Cocliran v. Ahnack, 39 0. S. 314, 316. See Milling Co. v. Bunn, 75 0. S. 270, 276. (c) The sections under consideration are in pari materia. They are sections of a revised code upon one subject, and are to be construed as a single statute; and treated as a single statute, it is to be so construed that all its provision.s may be harmonized if possible. Roberts v. Briscoe, 44 0. S. 596, 600. 253. COMPELLING A PARTY TO TESTIFY. (a) At the instance of the adverse party, a party may be examined as if under cross-examination either orally or by deposition, like any other witness. If the party be a cor- poration, any or all the officers thereof may be so examined at the instance of the adverse party. The party calling for such examination shall not thereby be concluded but may rebut it by counter-testimony. Section 11497, General Code. In re Rauli, 65 O. S. 128. (b) The effect of the statute is to antliorize a i>arty to call the adverse party and cross-examine him; and the right of counsel for the party thus called, in e:amining him. i>^ only what it would be if he had boon cross-c\aniinc7. Rcfresiiing memory. 2!)8. Cross-examination — Tlie riglit. 20!) Cross-e.xaminat ion — Illustrations. 300. Cross-examination of ainused. 301. Cross-examination — Error. 302. Limits of cross-examination. 303. Bias and prejudice. 304 Disparaging questions. 305. Collateral evidence binding. 306. Answer as to conviction. 307. Privilege against incrimination. 308. Refusing to answer. 300. Reexamination. 310. Recalling witnesses. 294. DIRECT— LEADING QUESTIONS. (a) As a g:eneral rule, a party will not be allowed to ask his own witness a leading question; that is, one that sug- gests to the witness tiie answer desired. But where a wit- ness is unwilling, or hostile to the party calling him, or stands in a situation which makci him necessarily adverse to such party, his examination in chief may be allowed to assume soniething of tlie form and character of cross-exami- nation, at least to the extent of permitting leading questions. Stull V. Wilcox, 2 0. S. ofiO. Hurley V. State, 40 O. S. :520, 22. (b) The allowing or refusing of leading questions in the direct examination must very largely be subject to the con- trol of the trial-court in the exercise of a sound discretion. And the mere fact that leading questions were imj)roperly 369 § 294: METZLER'S OHIO TRIAL EVIDENCE 370 allowed, although allowed as of right, is not reversible error when in no way prejudicial. Evans v. State, 24 0. S. 458. DeVeaux v. Ck'iiiens, 9 C. D. 647, 17 C. C. 33. Railway v. Moreland, 12 C. D. 612. (c) After having exhausted the memory of a witness as to a conversation, his attention may be drawn to a particular subject of that conversation ; but it is error to permit a ques- tion suggesting to him the several statements desired and secure his assent thereto. Hughes V. state, 9 C. C. (X.S.) 309, 19 C. D. 237. Cf. Railway v. Moreland, 12 C. D. 612. (d) And if a witness under the embarrassment of an ex- amination forgets facts Avithin his knowledge, ample oppor- tunity should be afforded for eliciting the facts fully. It is not improper for a party to ask his own witness if he had heard of a certain transaction, Avhen the object of the ques- tion is to refresh the memory of the Avitness, and assist him in fixing a date. Hurley v. State, 46 0. S. 320. 23. Teleplione Co. v. .Tacksoii. 4 C. C. (X.S.) 3Sfi, 16 C. D. 89. (e) Leading questions may be put to a witness called to contradict a former Avitness Avho has stated that such and such expressions Avere used or certain things Avere said. In such cases, it is the usual practice to ask Avhether those par- ticular expressions Avere used or those things Avere said, Avith- out putting the question in a general form by asking Avhat Avas said. The general form might bring out much irrelevant matter. But leading questions are improper Avhcn a Avitness is being impeached by shoAving contradictory statements. Tnterurban Co. v. ILiiiics, 21 C. D. -IC-,. 12 C. C. (X.S.) 17, 21. (f) Ordinarily, the cross-examination must Avait until the direct examination is closed ; but where there is a question as to the competency of a Avitness or A\'hether the matter is privileged, such as the evidence of a physician, or a laAA-yer, or priest, or Avhether a conversation occurred betAveen hus- band and Avife in the presence of third parties, cross-exam i- 371 EXAMINATION OF WITNESSES §295 nation is permitted before the testimony of siu-li witness upon tlie real question is admitted. Moore v. Caldwell, 17 C. D. 440, 6 C. C. (N.S.) 4S;4, 402. 295. IMPEACHMENT OF OWN WITNESS. (a) A party who calls a witness and is taken by surprise by his unexpected and unfavorable testimony, may inter- rogate him in respect to declarations and statements previ- ously made by him which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony, or explain his ai)parent incon- sistency; and for such purpose his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses. HurU-y v. State, 40 O. S. 320. Railway v. Hall, 10 O. D. 02, .3 O. L. K. .104. Prcscott V. All.rcclit, 21 ('. C. iX.S.) lOS. (b) A party Avill not be permitted to ask his own witness if he has not made certain statements out of court, unless such witness has testified to facts inconsistent therewith, and the party has been surprised by such testimony. A party calling a witness who does iu)t ai)pear to have any interest in the controversy Avill not be permitted to cross-examine him upon the mere assumption that he is adverse. ruMish V. WciisH, 8 C. D. 141, If) C. r. 133. (c) If tlie hostility of plaintiff's Avitness develops on his cross-examination, it is competent for i)laintiff on re-exami- nation of the witness to prove by him tluit lie nuule contra- dictory statements before the trial. Such examinations afford valuable aid in proving the conscience of a Avitness, in re- freshing his recollections, and in giving him an opportunity of correcting his testimony and explaining liis apparent in- consistency. And such evidence nuiy be admissible as sub- stantive evidence of facts in issue. ::iistill V. TlioriitoM, 22 C. C. OOS, 12 C. I). ;V.M. §296 METZLER'S OHIO TRIAL EVIDENCE 372 (d) ^Yliere a witness for plaintiff testified on cross-exami- nation to additional facts damaging to plaintiff's case, the plaintiff Avas not permitted to show by other witnesses that the witness had omitted to state those facts when called upon outside of court to state all that he knew about the case, because a party may not impeach his own witness. Katafiasz v. Electric Co., 1 C. C. (X.S.) 129, 14 C. D. 127. (e) A party is not bound by the unfavorable testimony of his own witness, but may prove his case by other evidence. He is not precluded from proving any fact relevant to the issue by any competent evidence, though it be a direct con- tradiction of the testimony of a former witness called by him. Hurley v. State, 4G 0. S. 320, 2. 296. FORTIFYING OWN WITNESS. (a) When a Avitness makes a statement on direct exami- nation, the narration of an independent circumstance to fortify his own statement is improi)er and should be ex- cluded. A witness may fortify his statement only Avhen his recollection is tested on cross-examination. Harris v. State, 20 C. C. (N.S.) .l.-fi. 24 C. D. 187. r.reck V. State, 4 C. f. KJit, 2 V. 1). 477. Durance v. State, 16 C. C. (N.S.) 20, 27 C. D. 287. Cf. Jones V. State, 54 O. S. 1. (b) "Where in a prosecution for a sale of liquor to a minor, the bartender has testified unequivocally that the owner was absent at the time of the sale, it is proper to exclude a fur- ther question as to any particular reason for knowing that the owner was not present. Harris v. State, 20 C. G. (X.S.) 356, 24 C. D. 1R7. (c) After a banker as an expert had testified on direct examination that the signature to an alleged will was forged, he was asked if he would pay a check so signed; and he answered he would not. It was held that the question was improper. Breck v. State, 4 C. C. 160, 2 C. D. 477. 373 EXAMINATION OF WITNESSES §297 (d) It is improper for counsel of accused to ask his own ■witness in chief what his opinion Avould be as to the sanity of defendant if he should hear tliat he had comniitted murder. Tliurman v. State, 2 C. D. 46G, 4 C. C. 141. (e) If a witness testifies that he saw and recognized the accused at a certain time and place, he can not be corrobo- rated by the testimony of one who says that the former wit- ness told him of the recognition, Kose V. state, 7 C. D. 2m, 13 C. C. 342. 297. REFRESHING MEMORY. (a) A witness may refresh and assist his memory by the use of a written instrument, or memorandum, or entry in a book, whether the same be admissible in evidence or not, or be an original or a copy, or made by the witness or a third person. But after thus refreshing his memory, he must speak to the facts from his own recollection ; for if he can then only testify to inferences, or to his belief or opinion drawn from the instrument or memorandum, and not from his recollection thus refreshed, his testimony can not be received. (See Index for Entries in Course of Business.) Swan's Treatise, page 120. .See Traction Co. v. Hackett, fi 0. App. 07, 2S! O. C. A. 506, 30 C. D. 208. (b) A witness may refresh his memory from a copy of items of original entries made by himself in a book which has been lost, where it appears that the copy was written l)y tlie attorney as the items were read off to him by the witness from the original entries, and was afterward compared by the at- torney reading the copy and the witness the original, and found by them to correspond. INlearl v. McGraw, 10 0. S. .'>5. Cf. Smiley v. Dewey, 17 Oii. 1.16. (c) An employe of an insurance company may testify as to notices sent by him to the assured of the maturity of pre- mium notes, and also as to the form of notice in general use by his company at that time after refreshing his memory from the books. Insurance Co. v. Morrow, 8 C. D. 410. 10 C. C. S.ll. §298 METZLER'S OHIO TRIAL EVIDENCE 374 (d) But Avhcie a statement of facts alleged to have oc- curred a year previously is entered in a memorandum book, and the person making the entry brings suit involving the truth of the matters so stated, and while the suit is pending, the book becoming worn, he copies the statement into an- other book, but is unable, except as aided by the writing, to testify to material matters therein, he should not be permitted, if objection is made, to use such copy while testifying as a witness in the cause. Where the original memorandum Is used, it must appear that the person who prepared it made i^ at a time when he had a distinct recollection of the facts, and ante litem motam ; and undoubtedly the latter condition is equally indispensable where the memorandum produced is a copy. Lovell V. Wentworth. 30 O. R. 614, 7. Cf. Traction Co. v. Hiukett. U O. App. 07, 2S O. C. A. 506, 30 C. D. 208. (e) A father produced a memorandum of the dates of the birth of his children, which had been made by himself from memory a few months before the trial, and Avas permitted to testify that it appeared that the prosecutrix was born on a certain date. It was held that the recollection of a witness can not be corroborated in that wa5^ Jonos V. State, 54 0. S. 1, 9. 298. CROSS-EXAMINATION— THE RIGHT. (a) The term "cross-examination" imports a leading and searching inquiry of the witness for further disclosures. And inasmuch as it has for its object the disclosure of not merely the extent and degree of accuracy of the witness's knowdedge, as well as the means of his knowledge, but also his motives, inclinations, powers of memory, and relative situation in re- spect to the parties, and the subject-matter of the investiga- tion, it becomes an important test of the credibility of the Avitness. Legg V. Drake, 1 0. S. 286, 92. (b) The importance of the right of full cross-examination of an adverse witness can scarcely be over-estimated. As a test of the accuracy, truthfulness, and credibility of testimony, 375 EXAMINATION OF WITNESSES ^^ 299 it is invaluable. It is the clear riglit of a party cross-examin- ing a Avitness to elicit suppressed facts which weaken or qualify the case of the party examining in chief, or support the case of the cross-examining party. ^ra^tin v. Eldcn. 32 O. S. 2S2. 287. (c) Where a witness in his examination in chief testifies to the existence of a material fact, which, when established, is conclusive between the parties, questions which call upon the witness to reaffirm, qualify or deny his statements in chief as to the existence of such fact, are within the just limits of a cross-examination, and it is error to exclude tliem. A witness may be cross-examined as to his examination in chief in all its bearings, and as to whatever goes to explain or modify Avhat he has stated in his examination in chief. The right to cross-examine extends, in any view, to all matters connected with the res gestae. Phillips V. Elwell, 14 0. S. 240. :\Iartin v. Elden, 32 O. S. 282. 299. CROSS-EXAMINATION— ILLUSTRATIONS. (a) On the issue whether poison was administered through the negligence of a physician, or intentionally by the accused, after the state had shown in rebuttal by a druggist that the physician was skillful and careful, the accused may cross- examine as to the extent and character of the druggist's deal- ings from which the opinion is formed. (For similar cases, see Character in Index.) Drcsback v. State, 38 0. P. 365. (b) If one of several defendants jointly indicted for a felony is tried separately, and the prosecuting witness testi- fies in chief that the offense was committed by several per- sons acting together, and testifies to the identity of the de- fendant, it is proper for the defense on cross-examination to inquire .as to the identity of the others; and it is error for the court to refuse to permit it. Morpan v. State, 48 O. S. 371. See UeCarnp v. Arcliibald, ;">() O. S. 618, 621. § 299 METZLER'S OHIO TRIAL EVIDENCE 376 (c) In a trial for homicile, a witness oiiered by defendant to prove a quarrel with the deceased may be asked on cross- examination whether anything occurred there in deceased's conduct, language or manner to arouse anybody. Zeltner v. Ptate, 13 C. C. (X.S.) 417, 22 C. D. 102. (d) It is competent to ask a witness on cross-examination how he was employed during the time of the transaction he has detailed in his examination in chief. This would tend to show whether the wdtness was situated so that he was able to note all that passed, whether his attention was directed solely to the parties, or whether he was engaged in anything else that occupied a part of his attention; it might tend to cast light upon the distinctness of his recollection. Stewart v. State, in Oli. 302. 304. (e) In an action on a claim against an administrator, a witness testified on behalf of the plaintiff that the claim was returned with a letter in which the claim was rejected, and the defendant was not allowed to cross-examine the witness as to the letter, nor to introduce the letter in evidence. It was held that the action of the court was erroneous. Yager v. Greiss, 1 C. D. 200. 1 C. C. r>31. (f) In an action of slander it is error to exclude defend- ant's cross-question as to whether the slanderous words were not hypothetical. And where a witness has testified that the plaintiff in an action for malicious prosecution tried to throw suspicion on a person, by saying that he must have burned certain w^heat, and that everybody said so, the witness may, on cross-examination, be asked what reasons were given by persons at the time for such suspicions. Tier V. Cromer, Wriiiht 441. Ash V. Marlow, 20 Oh. 11!'. (g) But it is not competent on cross-examination of a wit- ness called to prove that a certain contract was within the legitimate business of an express company, to ask the witness if he had ever heard of such a contract being made by such a company, when the witness had only testified of his knowledge and not of his information. Adams v. Brown, 16 O. S. 75. Cf. Insurance Co. v. Tobin, 32 O. S. 77, 89. 377 EXAMINATION OF WITNESSES §301 300. CROSS-EXAMINATION OF ACCUSED. (a) "Where upon a trial of an indictment the defendant offers himself as a witness and testifies in his own behalf, he thereby subjects himself to the same rules, and may be called on to submit to the same tests as to his credibility as may be legrally apjilied to other witnesses. The cross-examination is limited only by the sound discretion of the court. ITanoff V. Ptate, 37 0. S. 17S. Golner v. State, 19 C. C. (N.S.) 571, 26 C. D. fio4. (b) The accused havin<; given evidence in his own behalf, may be questioned on cross-examination as to a different story told by him to the police officers after his arrest, for the pur- pose of discrediting his testimony. Eiolo V. Stato, 10 C. C. (N.S.) 248. (c) In a prosecution for manslaughter by shooting, where the defense was that the shooting Avas accidental, and the ac- cused testified, he may be cross-examined as to his ownership and use of firearms and of incidents connected therewith, as it tends to show familiarity with firearms. Woller V. stato, 10 C. D. 381, 10 C. C. 16fi. (d) And where an aceomjilice testifies as a AVitness, a lib- eral and full cross-examination, for the purpose of testing the truth of his statements, should be permitted; and it is error to restrict such cross-examination within unreasonable limits. Lop v. Stato, 21 0. S. 151. 301. CROSS-EXAMINATION ERROR. (a) Reviewing courts Avill not reverse a judgment of a trial-court because of a limitation of cross-examination of a witness, unless it clearly appears that there has been an abuse of discretion therein resulting in manifest prejudice to the complaining party. Fabian v. State, 07 0. S. 184. (b) "Where, during the cross-examination of a witness, the adverse counsel interrupts by asking questions which the court allows to be answered, it is not error, as it is wilhiii the §302 METZLER'S OHIO TRIAL EVIDENCE 378 discretion of the trial-court to alloAv such interruptions, al- though the action of the adverse counsel is somewhat irregu- lar. And it is not reversible error for counsel to make a remark, such as "avc don't claim that," during the cross- examination of his witness. Scliaal V. TTeck, 8 C. D. .190, 17 C. C. 3S. (c) Where a witness on his examination in chief testifies to important facts in favor of the party calling him, prejudice to the adverse party should be presumed to arise from the denial of the right to a fair and proper cross-examination. The denial of such right is error, for which a judgment may be reversed by a reviewing court, though the cross-examiner does not disclose the answers which he expects to elicit by such cross-examination. The rule requiring such disclosures is not, ordinarily, applicable to what is strictly cross-examination. IMartin v. Elden, 32 O. S. 2S2, 80. Morgan v. State, 48 O. S. 371, 4. Railway v. Boltz, 16 C. C. (K.S.) 383, 6. 302. LIMITS OF CROSS-EXAMINATION. (a) The right of cross-examination is not to be limited by the particular facts disclosed in the examination in chief, but may he- extended to whatever the party calling the witness is required to prove. Thus a witness of the plaintiff may be cross-examined by the defendant touching all matters which it is competent for the plaintiff to prove under the issue in order to entitle him to recover. And, on the other hand, the plaintiff may cross-examine the defendant's witnesses as to all matters which the defendant may prove under the issue in order to sustain his defense. But when the cross-examination is extended to topics disconnected with the particular facts disclosed in the direct examination, leading questions to the witness may be proper or improper according to circum- stances, and the control of this must rest within the discretion of the court. Legg V. Drake. 1 O. S. 286, 292. (b) The fact that the party calling a witness did not ex- amine him as to a usage or custom which is material to the 379 EXAMINATION OF WITNESSES §302 case on trial, does not preclnde the otlier party from cross- examining him as to the existence of such usage or custom. Dock Co. V. Trapnell, 23 C. C. (N.S.) 40S. (c) The extent to which cross-examination may be con- ducted is usually a matter of discretion on the part of the trial-court. Where tiie questions i-ejccted are mainly rcju'ti- tions of questions which had been put in another form and answered, Ihere is no abuse of discretion. And a ]')arty can not object to the range taken in cross-examining a witness on an immaterial matter, -when the witness was first offered and examined on the same matter by the objecting party. Carey v. State. 70 O. S. 121, 12G. Minz'ey V. :\lai(y Co., 6 C. C. (X.S.) o\r^. l.i C. 1). f)!):?. (d) A witness may be cross-examined as to all matters pertinent to the issue on trial, even though he is interested to testify against the party calling him; except that a party can not, before the time of opening his own case, introduce his distinct grounds of defense or avoidance by the cross-examina- tion of the witnesses of his adversary. A defendant has no right to go into the distinct matter of his defense before the plaintiff has rested. And to allow a party defendant to do so in the cross-examination of the plaintiff" 's witnesses would be giving him an undue advantage. Lofr,!? V. Drako. 1 0. R. 2Sfi, 292. BoniK-tt V. State. 10 C. C. 84. 4 C. 1). 12!). Circleville v. Solin, 20 C. C. 3GS, 11 C. 1). V.)?,. (e) Since it is incumbent u])()ii the defendant to .show contributory negligence, it is error to i)ermit counsel for the defendant to cross-examine i)laintiff"s witness in such a manner as to tend to establish such negligence; but in a case where the court arrested the case from the jury, the error was with- out prejudice. Scott V. Wingenberg, 26 C. C. (N.S.) 1. 20 C. D. 479. (f) In an action on an insurance policy, the defendant company can not introduce its defense on the cross-exam iiui- tion of plaintiff's witnesses; and. of course, it can not intro- duce a defense which mi^ilit have been set n|> in llie answer §303 METZLER-S OHIO TRIAL EVIDENCE 380 but was not — a defense, in this case, that the building was burned by plaintiff to obtain money on the policy of insurance, riiillips V. Insurance Co.. 13 C. C. 670, 6 C. J). 203. (g) IToAvever, a jilaintiff may be allowed, in the discretion of tlie court, to introduce evidence in chief on cross-examina- tion of the defendant's witnesses. And where that discretion is not abused to Ihe substantial pi'ejudice of the objecting party, its exercise affords no ground for error. Bean'v. Green, 33 O. S. 444. 50. (h) When the court permits evidence in chief to be given on the part of the state, on cross-examination of the witnesses of the defendant, the judgment will not be reversed on that ground unless it ajipears that there was such an abuse of discretion as to have deprived the defendant of a fair trial. Adams V. Ptate, 2.) O. S. 5S4, 6. 303. BIAS AND PREJUDICE. (a) A witness may be interrogated on cross-examination concerning facts which affect his credibility by showing bias in favor of the party who called him as a witness, or by show- ing prejudice against the adverse party. Hayes v. Sniitli, 02 O. S. 101. Pvailway v. Ward, 2 C. C. (X.S.) 2.-)0. ].") ('. D. 3!)n. (b) If a witness is cross-examined as to bias or prejudice in respect to the parties, and he denies the facts inquired about, the cross-examining party may prove them by other witnesses. Every man who comes into the witness-box must come prepared to show that he gives his evidence from pure motives ; and any fact that shows the contrary is admissible against him for the purpose of affecting his credit as a wit- ness and for that purpose alone. Hayes v. Smith. 62 0. S. 161. Kent V. State, 42 O. S. 420. Cf. State V. Nevin, 23 Bull. 411. See Section 13659, General Code. (c) After a witness for the state has admitted his com- plicity with the defendant, it is error for the court to refuse 381 EXAMINATION OF WITNESSES § 304 to permit the witness to be asked on (.Toss-examiiiatioa whether he did not expect that his own discharge from further prosecution depended upon the conviction of the defendant. A liberal and full cross-examination should be permitted for the purpose of testing the truth of his statements. Allen V. State, 10 0. S. 287. Lee V. State, 21 O. S. 151. (d) A person jointly indicted with accused was called by the state and gave evidence tending to i)rove the guilt of the defendant, which evidence was in conflict with fonnci- state- ments of the Avitness, It Avas held that the defendant may- show, by cross-examination of such witness, that he iiad been offered money and propertj^ and immnnity from punishment, if he Avould testify as he finally testified on behalf of the state. The fact that the offer was made by one having no authority to make it goes to the weight and not to the com- petency of the evidence. Tullis V. State, 30 (). S. 200. (e) The per diem which the prosecution has agreed to pay its witnesses in addition to th(* fees which they will receive under the statutes, is a proper subject of cross-examination; and a party has been allowed to ask a witness who was in the employ of the adverse party how much he was paid for his work. Volk V. Wostorvillc, .3 X. V. fX.S.) 241. 17 O. D. 77(5. Railway v. Rons, !) C. C. 201, (i C. I). :{.{, (i. See Berry v. State, 31 O. S. 21!). 2:50. 04. DISPARAGING QUESTIONS. (a) The limits to which a witness may be cross-examined on matters not relevant to the issue for the |)U!'|>oso of judg- ing of his character and credit from his own voliiulary ;nl- missions, rvst in the sound discretion of Ihe coiifl ; ;ind ex- (dtision of sn<'h evidence is not ground t'oi- fe\-ers;d. Sn<'h (piestions may be allowed when there is reason to believe it will tend to the ends of justice; but they ought to be ex- cluded when a disparaging course of examination seems unjust §304 METZLER'S OHIO TRIAL EVIDENCE 382 to the witness, and luiealled for by the circumstances of the case. Wroc V. State, 20 0. S. 460. Hanofif V. State, 37 0. S. 178. Bank v. Slenimons, 34 (). S. 142. Shelby v. Clagett, 46 (). S. 549. (b) A witness may be asked on cross-examination if he had not been once arrested for an assault with intent to kill, or if he had not plead guilty to assault and battery, or how many times he had been under arrest, or if he had been con- fined in the penitentiary. Hanoff V. State, 37 0. S. 178, 9. Wroe V. State, 20 0. S. 460. Coble V. State, 31 O. S. 100, 1. Cf. Smith V. Johnson, 16 O. D. 43, 3 N. P. (N.S.) 8, 10. Burns V. State, 75 O. S. 407, 11. (c) On the trial of a criminal case, the state may cross- examine a witness for the defendant by asking him if indict- ments are pending against him, but may not ask him if he Avas indicted jointly with the defendant. Until the defendant offers evidence of his general character, the prosecution is not permitted to offer testimony on that subject. (For similar cases, see Character in Index.) Hamilton v. State, 34 0. S. 82, 86. (d) The court has discretion to refuse a disparaging ques- tion of a bank director who is sued on a loan from the bank, as to whether he did not owe the bank more than the law and his oath allowed. And the rejection of the question is not ground for reversal. Bank v. Sleramons, 34 0. S. 142. (e) Where the plaintiff, a woman, is suing a municipal corporation for personal injuries, the trial-court may sustain an objection to a question on cross-examination as to whether she had ever given birth to a bastard. And a question by the prosecutor to the accused while testifying, asking whether his wife had not kept an assignation house, is improper. The ex- tent of such cross-examinations rests in the sound discretion of the court. Shelby v. Clagett, 46 0. S. 549. Thurman v. State, 4 C. C. 141, 2 C. D. 466. 383 EXAMINATION OF WITNESSES § 305 (f) AVhere there are other causes of action with one for breach of promise, and the latter was not accompanied by seduction, a cross-examination of plaintiff as to her conduct and chastity after the breach may be competent as reflecting on her credibility. Reynolds v. Walker, 3G Bull. 167. 305. COLLATERAL EVIDENCE BINDING. (a) A witness can not be cross-examined as to any fact which is collateral and not material to the issue, merely for the purpose of contradicting him. Where a witness has been cross-examined as to matters which are merely collateral and immaterial to the issue, and such as have no tendenc}^ to show bias or interest in favor of or against a party, his answer is, in general, conclusive upon the party making the inquiry, ajid he can not be contradicted. Clinton v. State, 33 0. S. 27. Kent V. State, 42 0. S. 426. Williams v. State, Wrifrht 42. Cohle V. State, 31 0. S. 100, 102. Railways v. Prus, 7 O. App. 412, 28 0. C. A. .3(5!), 20 O. 1). (m. (b) Collateral facts not competent on direct examination may be inquired into on cross-examination in order to ascer- tain the ground of the witness's judgment and to test the cor- rectness of his testimony. If such evidence should be called out on cross-examination, the party calling for it would be bound by the answers given, and no collateral issues could arise on its admission. Insurance Co. v. Tohiii, 32 O. S. 77. W. Brown v. Il.iiikin. 2 C. L. R. 2S. 4 (). IX R. MVl. (c) A witness may be cross-exaiuincd as to liis religious belief and as to his recent declarations in relation tliereto ; but the subject is collateral aiul is not material to the issue, and the answers elicited from the witness will not serve as a foundation to call witnesses to contradii't liiin. Clinton V. State. 33 O. S. 27. Brock V. MillifiUM, 10 (»li. 121, t!. §306 METZLER'S OHIO TRIAL EVIDENCE 384 3C6. ANSWER AS TO CONVICTION. (a) If a witness denies his conviction of an infamous crime, such as, under the old hiw, rendered a convict incom- petent as a witness, the conviction may be shown for the pur- pose of affecting his credibility as a witness. But evidence can not be given to jirove an infamous crime against a w^it- ness, of which he has not been convicted. Coble V. State, 31 0. P. 100. .August V, FiniK'ity, 10 C. C. (IN.S.) 433, 20 C. D, 330. Section ]36o!). General Code. Webb V. State, 29 0. S. 351. (b) At common law, conviction of an infamous crime, such as forgery, perjury, subornation of perjury, and offenses af- fecting the administration of justice, rendered the person in- famous and wholly unworthy of credit. Now, by statute, the competency of the person as a witness is restored, but his con- viction may still be shown to affect his credibility. The effect of such conviction is to impeach the character of the witness as a man of truth. Webb V. state. 20 0. S. 351, S. Coble V. State, 31 0. S. 100, 102. (c) Where the character of the witness is attaclied by shoAving his indictment and conviction upon a charge of fel- ony wholly disconnected from the issue on trial, the trial court is not bound to permit counsel to go into details Avith reference to the crime so charged or specifically into the his- tory of the witness's past life where the same is wholly imma- terial and collateral, Diegle V. State, 14 C. C. (KS.) 289, 23 C. D. 82. (d) Where for the purpose of discrediting a witness, a record is offered of conviction of an offense which is not made a crime nr misdemeanor under anv statute of the state, and was in violation of a city ordinance only, it is not error to sustain an objection to its admission in evidence. August V. Finnerty, 10 C. C. (N.S.) 433, 20 C. D. 330. Coble V. State, 31 0. S. 100. (e) Where the question as to whether the witness is guilty of infamous crimes becomes the legitimate subject of 385 EXAMINATION OF WITNESSES §307 inquiry on the trial, liis reputation for trutli may ho proved to rebut the imputation of guilt which the evidence makes against him. Webb. V. State, 29 0. S. 351. (f) Where a ^vitness on cross-examination admits his con- viction and confinement in a penitentiary for a crime involv- ing moral tui"])itude. it is comi)etent for the ]^arty who called him to establisli his good character for trutli by adducing evi- dence of his general reputatioii in that respect. Wick V. BaUlwiii, 51 (). S. 51. 307. PRIVILEGE AGAINST INCRIMINATION. (a) A witness is not bound to answer any question that ■will directly or indirectly incriminate himself. This privilege comes from the constitutional provision that no person shall be compelled, in any criminal case, to be a witness against himself. Warner v. Lucas, 10 Oh. 336. McGorray v. Sutter, 80 0. S. 400, 411. (b) But it would be a departure from the principle to hold that the witness may use the immunity to prevent the discovery of the truth or to shield himself from mere embar- rassment or humiliation. Therefore the witness may be re- quired to answer, if by an,/ inquiry which does not invade his immunity it is made to appear to the trial-judge that his answer would not have a tendency to incriminate him. McGorray v. Sutter, 80 0. f!. 400, 411. Cf. In re Lowe, IG 0. D. 2.i4, 3 N. P. (N.S.) 041. (c) When a witness refuses to answer a question on the ground that his answer will tend to incriminate him, his claim of privilege is properly allowed by the court if from the cir- cumstances of the case and the nature of the question it ap- pears there is reasonable ground to api)rehend tnat bis an- swer would have that effect. State V. Murray, 82 0. S. 305. In ro Lowe, 3 N. P. (N.S.) 041, ]« O. 1). 2.-.4. (d) The privilege of a witness to refuse to answer a ques- tion on the ground that it will tend to incriminate him. can § 308 METZLER'S OHIO TRIAL EVIDENCE 386 not be interposed solely by counsel, especially where the wit- ness swears that to answer will not tend to incriminate him. Ammon v. Johnson, 2 C. D. 149, 3 C. C. 263. (e) Wliile the law does not permit the questioninp: of a legal voter as to how he voted, and an illegal voter might de- cline to answer, yet where he does not claim his privilege, but voluntarily discloses that he did vote, he may be compelled in an election contest to tell for whom he voted. State, ex rel., v. Markley, 9 C. C. (N.S.) 561, 20 C. D. 113. (f) It has been held in a case involving fraud that when a party testifies in his own behalf, although the testimony is in the form of an affidavit, the adverse party has a right to examine him as to anything relative to the charge, even though it might tend to incriminate him. Este V. Wilshire, 44 0. S. 636. (g) A witness may not refuse to answer a question perti- nent to the issue on the ground that the answer will tend to disgrace him, when it will not tend to incriminate and the witness so testifies. .\t7imon V. Johnson, 2 C. D. 149, 3 C. C. 263. 308. REFUSING TO ANSWER. (a) A witness whose deposition is being taken before an officer may refuse to testify to facts not relevant to the issues, if the disclosure of such irrelevant facts would be injurious to the business of the witness; and, if imprisoned by the officer for such refusal, he may be discharged. Ex parte Jennings, 60 0. S. 319. Ex parte Turner. 11 0. D. 2.51, 8 N. P. 241. (b) In an action to enjoin an illegal combination and for damages, the plaintiff, when called for examination before a notary, is not at liberty to refuse to answer questions on the ground that it calls for a trade secret and is therefore priv- ileged. But M'here such questions are irrelevant, the refusal of the witness to answer them must be sustained. Jones V. Goocle, 7 G. C. (N.S.) 589, 18 C. D. 475. 387 EXAMINATION OF WITNESSES § 309 (c) While an officer before -whom a deposition is being taken, may punish as for contempt any person who refuses to obey an order to answer a question or to produce a document, he can not do so unless it is lawfully ordered ; and where such question or document is not pertinent to tiie issues, or is not material or necessary to make out the case of the party eallino; for it, or is incompetent or privileged, the witness can not law- fully be ordered to answer such question or to produce such document. And the witness may make objection to an incom- petent question ; it need not come from a party. Ex parte Schoepf, 74 O. S. 1, 12. (d) But where the question propounded involves no ques- tion of privilege on the ])art of the witness, it is his duty to answer. And Avhere tlie Avitness testifies to matters pertinent to the issues, he is not liable to an action by the party against whom he has testified. DeCamp v. Arcliibald, 50 O. S. 618. Bickerstaff v. Hingsley, 1 O. A pp. 91, 19 C. C. (N.S.) 384. Liles V. Gaster, 42 0. S. 6:51. (e) Where an interested party avails himself of his right to testify in his own behalf, justice to the adverse party re- quires a full and thorough cross-examination. And where, by his misconduct in eontemi)t of court and in violation of the rights of his adversary, he refuses to answer, he should for- feit his right to have his testimony considered or his case heard until he submits to testify. But where a witness does not refuse to answer any questions, he can not be sent to jail for contempt on mere suspicion of untruthful statements. Foreman v. Railroad, 4 W. L. M. 159, 2 (). I). K. 611. Protective Assn. v. Roebling, 18 N. P. (N.S.) 385, 26 O. 1). 21!i. 309. RE-EXAMINATION. (a) A Avitness who has been fully examined in chief and cross-examined, may be re-examined to explain the sense and meaning of any expression userl in cross-examination .- l)nt lie can not be examined concerning new matter not refcM-ivnl to in the cross-examination, as to Avhich he miglit have Ix'cn exam- ined in chief. Any relaxation of the rule is bnt ;in exercise of discretion and not reviewable. And tlic mere i-cpelition on § 309 METZLER'S OHIO TRIAL EVIDENCE 388 re-examination of questions asked and answers given on cross- examination can not be prejudicial. Holtz V. Dick, 42 0. S. 23. See Section 11447 (sub. 4), General Code. Thompson v. Ackernian, 12 C. D. 456, 21 C. C. 740. (b) Where defendant on cross-examination of plaintiff's witness shows the general nature of the business in which he is engaged, it is competent for plaintiff on re-examination to inquire into the particulars of his business so far as it reflects upon the issues. Bean v. Green, 33 0. S. 444. (c) In a collision case between steamboats, plaintiff intro- duced a witness to show that defendant's pilot was not skill- ful. Defendant then asked on cross-examination if the witness ever knew of any accident to happen while this pilot was at the wheel, to which he answered in the negative. This fairly opens the door for the plaintiff to ask the redirect question if the pilot ever steered alone, and if so, whether he got into any danger. Clipper V. Logan, 18 Oh. 375. (d) Where a witness proves an unwilling witness for plaintiff and makes a statement about a transaction on cross- examination which is different from the statement made in chief, it is competent for plaintiff on re-examination of the witness to prove by him that he had made contradictory state- ments before the trial and that his testimony on cross-examina- tion is not true ; and a paper signed by the witness tending to prove the latter is admissible. Mustill V. Thornton, 22 C. C. 608, 12 C. D. 504. (e) But where a witness on cross-examination admits that he lias taken an active interest in the case in favor of the party calling him, he can not be permitted on re-examination in explanation of his conduct, to give his opinion of the merits of the case by stating that his reason for taking such interest in the case was that he considered the plaintiff "a very much injured and very badly abused girl." Turnpike Co. v. Coover, 26 0. S. 520, 522. 389 EXAMINATION OF WITNESSES § 31C 310. RECALLING WITNESSES. (a) To permit a witness to be recalled and agrain testify is discretionary with the trial-court, and its action will not be disturbed unless such discretion is abused. It is common prac- tice for counsel,' and permitted by the courts, to recall wit- nesses at almost any stagre of the case, for the purpose of cross-examination, particularly where it is desired to contra- dict a statement of the witness by the evidence of others. Eailway v. Thompson, 21 C. C. 778, 12 C. D. .326. Brandon v. Railway, 17 C. C. 705, 8 C. D. 042. CHAPTER XXII. IMPEACHMENT. 311. Reputation for truth — Rule. 312. Reputation — Facts provable. 313. Reputation at time of trial. 314. Who may be impeached. 315. Contradictory statements — Rule. 316. Contradiction in opinions. ST 7. Contradiction in former testimony. 318. Contradictory written statements. Si 9. Failure to siiealv. S20. Order of evidence. 321. Rehabilitation. 311. REPUTATION FOR TRUTH— RULE. (a) The character or reputation of a witness for truth and veracity may be impeached by the adverse party ; and where a witness is called for that purpose, such impeaching witness can only speak of the general reputation of the witness in the community, and can not give his own opinion of his character. Buclclin V. State, 20 Oh. 18. Mallory v. Smith, Tappan 108. (b) It is not error to exclude the testimony of a witness called to discredit another for truth when it shows that he is testifying from his personal knowledge, and not from the general reputation of the person whose testimony is sought to be discredited, as when the impeaching witness answers that the reputation of the witness is bad with him. Cowan V. Kinney, 33 0. S. 422. See State v. Griffith, 18 N. P. (N.S.) 161. (c) In impeaching the credit of a witness, the inquiry into his general reputation or character should be restricted to his reputation for truth and veracity, and can not be made in .100 391 irvlPEACHMENT §312 general terms, involving his entire moral character and estima- tion in society. Craig V. State, 5 0. S. 605. Perkins v. Mobley, 4 0. S. 668. Cf. Smith V. Johnson, 3 K P. (N.S.) S, 10 O. D. 43. 5. (d) As to the charge of general bad reputation, if untrue, every person in the neighborhood can give specific evidence rebutting it. If not able to state affirmatively that the person is well spoken of in the neiglil)orhood. the witness can state that he knows of no such general bad reputation ; which goes directly to rebut the allegation of its existence. Bucklin v. State, 20 Ob. IS, 24. 312. REPUTATION^FACTS PROVABLE. (a) Any form of words may be adopted by which to as- certain whether the im]ieaciiing witness has sufficient knowl- edge of the ]iublic estimation for truth in which tlic witnes.? proposed to be impeached, is held. In general the proper form of the question is : Have you the means of knowing th« general reputation of A P>, the witness, for truth? Oi-, this preliminary question may be: Are you acquainted with A B, and do you know what is his general reputation for truth? Craig V. State, 5 0. S. CO."), GOT. (b) It is not error to ask, Are you acquainted with A's reputation for truth and voracity; if so, wliat is it? By tho word "reputation"' so used, Avill be intended tlie general re- pute of the witness sought to be impeached. French v. Millarrl, 2 0. S. 44. (c) Where a witness acquainted with the reputation of another for truth and veracity, testifies that such reputation is bad, he may be allowed to further testify that from such reputation he Avoukl not believe the witness sought t<. I)c im- peached under oath. The object of such testimony is to en- able the jury to ascertain the ti-uc cliariictcr of sndi reputa- tion as the impeaching Avitness understands it. and thcirhy determine the extent to which it ought lo discredit the wit- ness. mUh V. Wvlio, 26 0. S. 574. ^ 313 METZLER'S OHIO TRIAL EVIDENCE 392 (d) For the purpose of impeaching the credibility of a competent witness, it is not admissible to prove by other wit- nesses that such witness is not ])ossessed of ordinary intelli- gence. Hence, the deposition of a witness can not be attacked by calling other witnesses to show the weakness of intellect of such witness. Bell V. Einner, 16 0. S. 45. (e) If it be conceded that the credibility of a witness is to be graded in proportion to his strength of intellect, the tribunal before which he testifies can better estimate his capacity and the weight to which his testimony is entitled by his manner, and by his statements on cross-examination, than can ordinarily be done by the testimony and conflicting opin- ions of other witnesses as to the extent of his mental powers, or the degree of his intelligence. Bell V. Einner, 16 0. S. 45, 49. (f) A Avitness called to impeach, who swears that another witness is not of as good character for truth as men in gen- eral, may be cross-examined as to how he formed such opin- ion; he may be asked who gave the witness a bad character, and particular facts may be inquired about for the purpose of supporting the character of the witness sought to be im- peached. Cloason v. Williams, Tappan 174. 313. REPUTATION AT TIME OF TRIAL. (a) Tn a prosecution for rape, it is competent to impeach the prosecutrix, who has been examined as a witness therein, by proving her reputation for truth to be bad at the time of the examination; and it is error in the court to limit such evi- dence to her character as it existed at and before the time of the commission of the alleged crime. But it is not error to apply the latter limit to her reputation for chastity. Pratt V. state, 19 O. S. 277. (b) But wliere a convict who has been in tlie penitentiary two years, is taken therefrom to testify as a witness and does so testify, it is competent for the adverse party to prove that 393 IMPEACHMENT §315 liis reputation for truth and veracity was bad at the time of and ])revious to his conviction, at the place uhere he then re- sided. There is certainly no presumption tliat a man's reputa- tion for truth would improve during his confinoment ; on the contrary, the former state of things is presumed to continue. Hamilton V. State, 34 0. S. 82, 85. 314. WHO MAY BE IMPEACHED. (a) A witness called in rebuttal may be impeached. "Where plaintiff examines a witness in chief, but iu)t as to anything disputed by defendant, and after the close of defendant's evi- dence the same witness is called in rebuttal and contradicts the testimony of the defendant, the defendant then has a right to prove the bad reputation of the witness for truth and veracity. Marts V. State, 26 0. S. 162. (b) Where an affidavit for continuance on the ground of inability to procure the testimony of an absent witness con- tains a statement of what is expected to be proved by the wit- ness, and such statement is given in evidence on the trial as the testimony of the witness, its credibility may be attacked in the same manner as that of a deposition, by impeaching the veracity of the witness. Insurance Co. v. Wright, 33 0. S. 533. (c) "Where the evidence taken before a master Avas by mutual consent to be read on the trial without any right re- served to contradict it, it was said that neither party made the testimony read bv the other his own, so as to estoj) himself from contradicting or imi)eaching it. Rankin v. Ilannan, 3S 0, S. 438, 440. 315. CONTRADICTORY STATEMENTS RULE. (a) Declarations made l)y a witness jjrcvious to his oxain- ination which are contrary to his statements when examined, are admissible to discredit his testimony, hut not to exclude him as a witness. But before a witness can be contradicted by proving statements out of court at variance with his testi- [§316 METZLER'S OHIO TRIAL EVIDENCE 394 mony, he must be first inquired of, upon cross-examination, as to such statements, and the time, place and person involved in the supposed contradiction. Lamb v. Stewart, 2 Oh. 230. Dunn V. Cronise, 9 Oh. 82. King V. Wicks, 20 Oh. 87. (b) It is not enough to ask him the general question, whether he has ever said so and so, nor Avhether he has al- ways told the same story ; because it may frequently happeu that, upon the general question, he may not remember whether he has so said; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said. King V. Wicks, 20 Oh. 87, 00. ISIoniofville v. Weihl, G C. D. ISS, ];5 C. C. 680. (c) The testimony of a Avitness was taken by deposition and the foundation was laid for his impeacliment by contra- dictory statements. The impeaching witness at the trial was not confined to the matters brought to the attention of the other witness in his deposition, and thus many statements claimed to have been made were put in evidence wliich the witness had no opportunity to explain. This was clearly error. Railway v. Boltz, 10 C. C (N.S.), 393. (d) Conduct inconsistent with the testimony of a witness may be shown as well as former statements thus inconsistent. Where the foundation is laid for contradicting a witness, by conduct or statement out of court inconsistent with his testi- mony upon a material matter, and such conduct or statement is susceptible of different meanings, one of which would be inconsistent with the truth of such testimony, it is admissible in evidence, leaving the jury to determine which is the true meaning; and to exclude such evidence is error. Dilcher v. State, 39 0. S. 130, 136. Traction Co. v. Hatfield, 1 0. App. 354, 17 C. C. (N.S.) 350, 24 C. D. 378. 316. CONTRADICTION IN OPINIONS. (a) A party offered to prove statements of a witness which M-ere inconsistent with his testimony, and they were 395 IMPEACHMENT §317 objected to on the ground that they -were mere expressions of opinion, and the trial court excluded them. Tlie reviewing court held that as the former statements carried with tliem an affirmance of facts material to the issue and inconsistent with his testimony, they were admissible. Heintz v. Caldwell, C. D. 412. 16 C. C. 630. (b) Where the attending physician is asked as to the prob- ability of the Avounds on deceased's bod3- having been self- inflicted, and he answered, "It is very possible they could be," it was held proper for the state to show that tlie witness had made contradictory statements at other times, when both opin- ions of the physician were based upon his personal knowledge gathered from frequent examinations. Hoover v. State, 01 O. S. 41, 45. S17. CONTRADICTION IN FORMER TESTIMONY. (a) \yhen the ground has been properly laid for impeach- ing a witness, it is not error to ])ermit the stenographer who took his testimony before the grand .iury to state, after re- freshing his memory from his notes, tliat cei-tain questions were there asked the Avitness and answers given by him. .Tolm V. state, 16 C. C. (X.8.) 316. (b) And where it is claimed that a witness who testified at a former trial or before the grand jury has changed his testimony, the official stenographer who took his former testi- mony may read his notes in evidence to the jury as impeach- ing such witness, if he remembers and can testify that they were correctly taken, and tliat the notes contain all the evi- dence of the Avitness on the subject, although at the time he is called to testify he has no independent recollection of his testimony. Baum V. State, 6 C. C. '(N.S.) SIT), 17 C. D. n6n. I'onn. Co. V. Trainer, 12 C. C. 60, .5 C. I), f)!!). (c) A Witness Avho is not a party to the suit may not be contradicted by statements made in a deposition given by him in another suit in which the parties were not the same, and in reference to which deposition no inquiry was made of the witness. Aklrich V. :Marcellu8, 3 C. C. .'300, 2 C. D. 287. §318 METZLER'S OHIO TRIAL EVIDENCE 396 318. CONTRADICTORY WRITTEN STATEMENTS. (a) A written statement which the witness admits he signed and which is in conflict with his oral testimony is ad- missible, but it is error to let in parts of it as to which he was not examined; and the written statement may be admitted in evidence as part of the cross-examination. Insurance Co. v. Carnalian, 10 C. D. 225, 19 C. C. 97. Spaulding v. Railway, 10 C. D. 6G0, 20 C. C. 99. (b) A written statement in conflict with the witness's tes- timony, signed in his name, may be admitted for the purpose of impeachment, even though he denies the signature, if an- other witness testifies that the former did sign. And if the witness is a party, for the additional reason that it is a decla- ration against interest. iTisurance Co. v. Carnalian, 10 C. D. 225, 19 C. C. 97 Sullivan v. Starkcy, 14 C. C. (N.S.) 281, 22 C. D. 4S5. (c) A witness testified in behalf of the state that goods were received and bought of him by the defendant who knew that they Avere stolen; and, on cross-examination, he denied that he liad any knowledge whatever of a letter shown to him, and purporting to have been Avritten by him to the defendant, which stated that he knew nothing against the accused relat- ing to the transaction. It was held that, for the purpose of impeaching the witness, the letter might be given in evidence by the defendant, on making prima facie proof that it was written at the dictation of the witness, and w^as in fact sent by him to the defendant. Shriedley v. State, 23 0. S. 130. (d) It is error in a will content to exclude testimony tend- ing to show that a witness to such will had made contradic- tory statements at different times touching his knowledge that the paper writing signed by him as such Avitness was sub- scribed and acknowledged by the testator as his will. Tims v.Tinis, 14 C. C. (N.S.) 273, 22 C. D. 50r,. (e) But where a subscribing witness had died before the trial, and his testimony taken at the probate was read in evi- dence, the contestors offered in evidence his declarations re- 397 IMPEACHMENT §319 speeting the capacity of the alleged testator. It -vvas held that before such statements can be given in evidence to impeacli a witness, he must be interrogated as to the same; and the fact that the opportunity for such examination has been cut off by the death of the witness does not form an exception to the general rule. The want of such examination goes to the competency of the evidence; and wliere there Avas no oppor- tunity for the witness to explain the supposed declarations, nor for tlie party calling him to examine him in reference thereto, this mode of impeachment can not be resorted to. Eunyan v. Price, 15 0. S. 1. Baird v. Detrick, 8 0. App. 108, 28 O C. A. 257. Cf. Roush V. Wensel, 8 C. D. 141, 15 C. C. 133. 319. FAILURE TO SPEAK. (a) "Whenever on a former occasion it was the duty of a witness to speak, his silence or his failure to state the whole truth concerning a material matter may be shown for the pur- pose of impeaching his testimonv on the witness stand. And if he testifies under suspicious circumstances to facts which he should have stated before, this tends strongly to impeach his testimony. But such witness may properly be asked or per- mitted to explain the omission to state the facts licfore. Spaiilding v. Railway, 10 C. D. 000, 20 C. C. 00. Hunt V. Caldwell, 22 C. C. 283, 11 CD. 502. (b) The mere fact that the witness on the stand admits having made the former statement wliidi is silent as to cer- tain material facts, does not relieve such statement of its character as impeaching evidence. And it is not the duty of the trial-judge to determine, as a matter of fact, wlu^tlier under all the circumstances such statement tends to impeach or does impeach his testimony on the witness-stand. Th;it question may properly be determined by the jury. Spaul.ling V. Railway, 10 C. D. 000, 20 C. C. 00. (c) Where an employe who has been injured in an acci- dent fails to mention one of the aHe^n-d causes at the time his statement is taken following the accident. (Iniil)t is cast §320 METZLER'S OHIO TRIAL EVIDENCE 398 upon his testimony as to sucli alleged cause, when made long after in court in support of a claim for damages. Railway v. Vogelson, 3 C. C. (N.S.) 581, 13 C. D. 301. Cf. Hunt V. Caldwell, 11 C. D. 562, 22 C. C. 283. (d) A witness for the state, having testified to a crimi- nating statement by the accused, can be asked if he testified before the coroner, and if he had not failed to disclose this statement of the accused when examined at the coroner's in- quest; and it is error to exclude it. Turner v. State, 3 C. D. 263, 5 C. C. 537. Cf. Riolo V. State, 19 C. C. (N.S.) 248. 320. ORDER OF EVIDENCE. (a) A party should not be allowed to call a party as a witness, supposed to be adverse, in anticipation of his being called by the other side, and elicit from him admissions, other- wise incompetent, with a view of laying ground for his im- peachment. Roush V. Wensel, 8 C. D. 141, 15 C. C. 133. Cf. Moore V. Caldwell, 6 C. C. (N.S.) 484, 17 C. D. 440, 5!). (b) A question which leads an impeaching Avitness to an- swer by using the same words which a former witness has denied using, is incompetent; and permitting such a question to be answered constitutes error. Interurban Co. v. Haines, 12 C. C. (N.S.) 17, 21 C. D. 265. Cf. Americus v. :\lcUowell, 16 C. C. (N.S.) 573, 27 C. D. 504. (c) On cross-examination of a witness as to prior state- ments inconsistent with his testimony-in-ehief, it is not necessary for the cross-examiner to state Avhat he expects to prove by the question, as the purpose and object of the inquiry is sufficiently manifest without such disclosure. Burt V. State, 23 0. S. 394. (d) It is proper to permit a witness, who has made state- ments out of court at variance with his testimony given in the trial, to explain or give his reasons for making the con- tradictory statements; such conflict in statement goes only to 399 IMPEACHMENT §321 affect his credibility, and does not render him incompetent or necessarily render his testimony incredible. Baum V. State. G C. C. (N.S.) 515, 17 C. D. 569. Spaulding v. Railway, 10 C. D. 600, 20 C. C. '.Ml. (e) A party desiring to offer independent evidence with the view of impeaching the testimony of a witness of his ad- versary, can not do so during his cross-examination of such witness, but must wait until the time arrives for him to offer his own evidence. Benefit Ass'n v. Harding, 7 C. C. 438, 4 C. D. 608. (f) "Witnesses called to impeach another witness by prov- ing a conversation denied by him, may be cross-examined as to further statements made by him in the same conversation. Finnegan v. Sullivan, 4 C. D. 292, 18 C. C. 876. (g") The re-examination of the witness as to his contra- dictory statements must wait until the impeaching evidence is introduced. Thus, a witness who testified that defendant struck the fatal blow having denied on cross-examination a prior declaration that it was not defendant who struck the blow, can not be asked by the state what he did say in the conversation until after testimony is offered to contradict him. Dickson v. State, 39 0. S. 73. (h) A witness called to impeach another by showing statements inconsistent with those testified to, may himself, the proper foundation being laid therefor, be contradicted by showing statements made by him out of court inconsistent with those testified to by him in contradiction of such other witness. Berry v. State, 31 0. S. 219. 321. REHABILITATION. (a) The impeachment of the credit of a witness by show- hig that he has made statements at other times contradictory of his testimony given on the trial, has the same effect as his contradictory statements made during his examiiuition. It does not lay the foundation for sustaining him l»y proof of his reputation for truth. Webb V. State, 29 O. S. 351, 7. §321 METZLER'S OHIO TRIAL EVIDENCE 400 (b) A witness impeached by contradictory statements can not be sustained by showing that he had made consistent statements. Where a witness is shown to have made state- ments contradictory to those made by him on the trial, it is error to permit an attempt to rehabilitate the impeached wit- ness by proving that he had made prior statements similar to those made on the trial; because it Avould not prove the truthfulness of the witness, nor the reliability of his recollec- tion, nor that there was no inconsistency between the two statements. Traction Co. v. Stephens, 75 0. S. 171, 182. CHAPTER XXIII. FACTS AND OPINIONS. 322. General principles. S2a. Conclusions excluded. ;i24. Belief of a party. '.'.2i'). Intent of a ]>arty. ;i2(i. Oi)iiii()ns of non-experts. 327. Opinions of experts — Principles. o2iS. Ivxperts — Preliminary exaniina/tion. ;^2i). Experts — Province of jury. 330. Hypothetical (piestion.^ — Facts. .3;>1. Hy])otiietical questions — Assumptions. 332. Ex])erts — Examination li'Mi. Experts — Impcacliment. ','34. Hearsay opinion excluded. 335. Vital issues for jury. 33(5. Exceptions to rule. 322. GENERAL PRINCIPLES. (a) The general rule is that a witness may only testify to those facts which he knows of his own knowledge — those which are derived through his own senses or perce])tions — and not to inferences or conchisions deducible from facts known to himself and not disclo.sed to the court and jury. AVhen the statement of a witness is a matter of mere argument and opinion upon a point when he could state the facts, it is not proper evidence. All)atross (Ptht.) v. Wayne. Ifi Oh. 513, 4. See Crowell v. I'.ank, 3 O. S. 40(). State V. Lcutli, 5 C. C. !)4, 3 C. D. 48. (b) A witness may state his impression. This rule results from the fact that a witness can not l)e required to depose positively, when liis i-ecollectioti is not disliiicf and certain. But the impression of a witness, 1o he adniissihlc as evidence, must be. not the residt of a process of reason and .jndgment, but simply facts impressed on his inenioi'v, and of wliieli his 401 §323 METZLER'S OHIO TRIAL EVIDENCE 402 recollection is not sufficiently distinct to arise to positive assurance. Crowoll V. IJaiik, 3 0. S. 406. Cf. State V. Lopa, 96 O. S. 410, 412. (c) When a witness expresses his belief that a thing hap- pened, and it appears to the court after examining him, if necessary, that he is stating an impression founded upon per- ception, and not upon information or deduction, his answer should be admitted, unless the court, in its discretion, thinks the impression is too faint to have any value. And where a defendant is convicted on the belief or slight impression of a witness, the judgment will be reversed. Leach v. Calder, 12 0. D. 211. Crowell V. Bank, 3 0. S. 406, 412. Silver v. State, 17 Oh. 36.5, 371. 323. CONCLUSIONS EXCLUDED. (a) "Where it is practicable for the witnesses to place palpa- bly before the jury the facts supporting their opinions, and where the matter is not susceptible of expert testimony, they should be restricted in their testimony to the facts; and the jurors should be left to form their own opinions from these facts, unaided by the mere opinions of the witnesses. Railroad v. Sclmltz, 43 O. S. 270, P2. Coal Co. V. Jones, 11 C. C. (N.S.) 203, 20 C. D. .5SS. Traction Co. v. Woolcy. N. 1'. iX.S.) 444. 17 O. D. 10. (b) The testimony of a witness consisting of the narra- tion of a conversation of a party is always to be received with great caution. And to allow a witness, after the nar- ration of a conversation, to state his conclusions or under- standing from the conversation, as to the meaning or under- standing of the parties to the conversation, would be a- most dangerous relaxation of the rules of evidence. Crowell V. Bank, 3 0. S. 406 and 412. Grand Lodjre v. Bunkers, 13 C. 1). 4S7. 3 C. ('. (N.S.) 2.)6. (c) The rule applies to a witness who took part in the conversation. In narrating a conversation held between him- self and another. ;) ^\ itness can not be permitted to testify 403 FACTS AND OPINIONS §323 Avhat he meant by the questions asked by himself; his mean- ing must be gathered from the import of the hinguage with- out the aid of a subsequent explanation of his own meaning. Haywood v. Foster, 16 Oli. SS. (d) The opinion of a witness, based upon his knowledge of the manner in which a family lived, as to the probable an- nual expense of maintaining their house, is not e-ompetent. The general rule is that opinions can not be received in evi- dence : and this ease does not come within any of the excep- tions. In re Ealie, 12 O. D. 5!)0. (e) A witness having exhausted his knowledge of the facts concerning the condition of a room soon after the com- mitting of murder therein, and having described the extent to which the floor was covered with blood, should not be allowed to answer the question whether he could have gone to bed without getting his feet bloody. Cottell V. state, 5 C. D. 472, 12 C. C. 4(17. 470. (f) The opinions of witnesses engaged in the business of insurance as to the materiality of Ihe fact that the building insured had shortly before been on (ire, and the effect it would have had upon the mind of a prudent underwriter, if communicated, are not admissible in evidence. And a life insurance company's officers can not testify that a policy would not have been issued had they known the state of the health of the insured. These questions pertain to matters of common and ordinary knowledge, and the jury must decide them. Insurance Co. v. Harmer, 2 0. S. 452. liisii ranee Co. v. Kshelnian, 30 O. S. 647. (g) Tiie statements of a woman after the date of an alleged operation to i)r()ciir(' an abortion n]u)U her. to the effect that she was still pregnant, arc not admissible as expressions of bodily feelings; l)nt such statements relate ratln-r to the opinion of the woman concei-ning her condition and should l)e cxclndetl. Benedict v. State. 44 O. S. 670, 6S7. §324 METZLER'S OHIO TRIAL EVIDENCE 404 (h) It is prejudicial error to admit a statement of a con- clusion by a witness who has stated no facts from which the conclusion can be drawn, the jury being quite as competent as the witness to draw a conclusion from the facts. But the statement of a conclusion may be rendered harmless where the answer put the jury in the possession of the facts upon which the witness based his opinion. Kolin V. State, 12 C. C. (X.S.) 107. 22 C. D. 711. Jewelry Co. v. Hazen, G C. C. (N.S.) 60G, 17 C. D. 679. 324. BELIEF OF A PARTY. (a) The general rule requiring a witness to confine him- self to facts excludes the inferences, conclusions and beliefs of a party. However, there are some exceptions to this rule. Exceptions often occur Avhen the question is whether a person acted with prudence, in good faith or without malice; when these questions arise, the belief of such person may become proper evidence. (b) Where the defendant is examined as a witness on the trial of an action for malicious prosecution, he may be allowed to testify that at the time he commenced the prosecution com- plained of, he believed that the plaintiff was guilty of the charge made against him ; or he may testify that he had no malice against plaintiff, but caused his arrest in good faith. Wliite V. Tucker. 16 O. S. 468. Sclnvart/, v. Fridriek. 16 C. C. (X.S.) 200. Cf. John V. Bridgman, 27 O. S. 22, 4.3. (c) Under a chattel mortgage authorizing the mortgagee to take possession of the mortgaged goods whenever he deems himself in danger of losing any part of his debt by delay, he may take possession whenever, in good faith and on facts arising sinee making the mortgage, he deems himself in dan- ger. And the mortgagee, if a Avitness, may testify as to whether or not he did deem himself in danger of losing any part of his claim. Barrett v. Hart, 42 0. S. 41. (d) In an action for damages for injury from defective machinery, the employe may testify that he relied on a prom- 405 FACTS AND OPINIONS 5 325 ise by the employer to have the defect repaired, and that the effect of the promise was to keep him at work until the in- jury: for a party may testify to his own belief in and his reliance on a promise. stove Co. V. Reep, n C. 1). 4(i7, IS C. C. 5S. (e) "Whether a buyer's deceit as to his pecuniary con- dition at one purchase on credit constitutes fraud on the same seller at a later sale is a question of fact. And in such case the seller may testify that he still relied on the prior state- ment. G rover v. Taylor, 53 O. S. 621. (f) In an action upon a written instrument, to which the defendant alleges that his signature was secured by duress by threats to have his son arrested, the effect of the threats upon the defendant was a question of fact; and it was com- petent for him to testify that he would not have signed it if the threats had not been made. Stone Co. v. ^Miigham, 23 C. C. (X.S.) 520. 325. INTENT OF A PARTY. (a) Another exception is the intent of a party. AYhen a person admits the doing of an act, and its validity turns on the intent with which the act was done, it is proper to a.sk the witness what his intention was in doinir tin" act. So when the holder of a promissory note made an alteration on the note, he may testify that he made it innocently and without any fraudulent intent on his part. Tiickor V. Hendricks. 2 C. C. (X.S.) 122, M C. D. 42(1. (b) Whenever the intent with which an act is done be- comes the subject of inquiry, the person performing the act, if competent to testify to the act itself, is competent to testify as to the intent; for instance, lluit a conveyance was in good faith and without intent to (lefrand ei-edifors, oi- that the delivery by grantor of a deed for record was for the grantee's nse. Coal Co. V. Davenport, 37 S. 104. Rollin-,' Mill V. rackanl, 1 C. ( '. 7(i, 1 C. I). 40. Pierce v. Wliite. 22 I'.iill. OS, 10 (). I). R. 552. Mitchell V. Ityan, 3 O. S. 377, 385. 5 326 METZLER'S OHIO TRIAL EVIDENCE 406 (c) But a party may not always testify as to his intent in doing an act. Where the facts proved against a party are equivalent to an illegal intent, or when by the rules of law a certain intention is evidenced by the act itself, he can not, when testifying in his own behalf, be asked as to his intent. This is the rule, because his opinion would most likely be self- serving and a wrong characterizing of his own conduct, and would substitute the opinion of an interested witness for that of the jury. Sop Sclnvartz v. Fridrick, 16 C. C. (X.S.1 200. 201. Cf. .Tolin V. Bridpman. 27 O. S. 22. 4:1. (d) Where a married Avoman acquires the title to prop- erty by purchase and executes her promissory note therefor, an implication arises, in the absence of proof of a different understanding, that she thereby intended to charge her sepa- rate estate with its payment. And in such case, the wife wnll not be permitted to testify that she had no intention to charge her separate estate with the payment of such note. Avery v. Vansickle. .S.i O. S. 270. See Hershizer v. Florence, 30 O. S. 516. 326. OPINIONS OF NON-EXPERTS. (a) In matters within the common observation and ex- perience of men, non-experts may. in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinion from such facts. where such opinions involve conclusions material to the sub- ject of inquiry. Tn such cases, the witnesses are required, so far as may be, to state the primary facts which support their opinions. Eailroarl v. Sclnilt?;, 43 0. S. 270. 82. Railways v. Stoltz, C. D. 638, 18 C. C. 93. Railway v. Van Horn, 21 C. C. 337. 12 C. D. 106. Railway v. Ullom, 20 C. C. .'>12. 11 C. D. 321. (b) For a witness to undertake to place before a jury all the facts and symptoms from which he had formed the opinion that a person was angry, drunk, sick, in love, or in- sane, would be to abandon himself to a hopeless attempt at mimicry and undignified descriptions and imitations, as ludi- 407 FACTS AND OPINIONS § ^20 erous as they Avould be vain and unprofitable. "Where the faets can not be made palpable to the jnrors so that their means of forming' ojiinions are ]">raetieally eqnal to tliose of the "witnesses, opinions of snoli Avitnesses may be received, accompanied by such facts supporting- them as they may be able to place intelligently before the jury. Railway v. Sduilfz, 4?, O S. 270, 2S1, 2^r, (c) A non-expert -witness should not be permitted to an- swer questions concerning whicli he has no more knowledge and has had no more exjierience than men of ordinary infor- mation and intelligence. T'nless a witness first qualifies him- self by showing- that he has some knowledge on the subject, it is error to allow him to testify over the objection of the other side as to the identity of a person. Seizor V. Coal Co., 12 C. D. 787. Eaihvay v. Ullom, 20 C. C. 512, 11 C. D. 321. Railroad v. Marsh, 63 0. S. 236. (d) In a trial for murder, it is competent for the defend- ant to ask a Avitness who had seen the conflict Avhether or not there was time enough for him to escape and get out of the way, before the deceased rushed on him. The fact here sought to be proved could not well be proved to a jury by a statement of facts. The time occupied by the deceased, in passing from where he stood to the defendant, a distance of only a^few feet, could hardly be stated with any accuracy of measurement. The rapidity of his motion could not be calcu- lated, so as to convey any very definite idea of his velocity. A variety of circumstances that could only be perceived, but not detailed, would constitute the aggregate from which the opinion could be formed. Stewart v. State, 19 Oli. 302, 307. Cf. State V. Rhoads, 29 O. S. 171. (e) Tn answer to a question as to how much lime a switchman has in coupling cars, it is competent for a wit- ness to state that the operation requires such (piickness of movement that his time and attention would be occupied m the performance of this duty; and he would not have tune to look out for any defect about the car. Railroad v. Waterworth, 21 C. C 405. 11 C D. 121. §327 METZLER'S OHIO TRIAL EVIDENCE 4C3 (f) When intoxicating liquors are sold by the drink un- der a fictitious name, a person Avho has drunk of the liquor so sold may, as a Avituess, be asked his opinion as to its true name and quality, and may be pressed for an answer if he denies being a judge. Bean v. Green, 33 0. S. 444. 327. OPINIONS OF EXPERTS— PRINCIPLES. (a) In everything pertaining to the ordinary and common knowledge of mankind, jurors are supposed to be competent and, indeed, peculiarly qualified to determine the experienced connection between cause and effect, and to draw the proper conclusion from the facts before them. But they are selected with no view to their knowledge of particular services, trades, and professions, requiring a course of previous study and preparation. As questions connected with these will very often arise, and as the law deprives the jury of no reliable means for ascertaining the truth, it allows them to be aided, in making the proper application, by the opinions of wit- nesses possessing peculiar skill in those particular depart- ments. But this is only permitted where the nature of the question at issue is such that the jury are incompetent to draw their own conclusions from the facts, without the aid of persons whose skill or knoAvledge is superior to their own, and such as inexperienced persons are unlikely to prove capable of forming a correct judgment upon, without such assistance. Insurance Co. v. Harmer, 2 O. S. 452, 456. (b) Opinion evidence is not competent where the matter inquired about is one within the common knowledge of men of ordinary information, and it is practicable to place before the jury all the primary facts upon which a conclusion is to be based; but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven. Torpedo Co. v. Fislibnrn, 61 O. S. 608. 409 . FACTS AND OPINIONS § 328 (c) The general rule and the exception are aKke appli- cable to every possible class of cases; and wlietlier the one or the other shall be applied — whether the jury shall be left to make the proper deduction from each fact proved, or may be aided by the opinions of experts — must, in every ease, de- pend upon the nature of the question involved. If the con- nection between the fact and its experienced consequences belongs to the ordinary information of men, the general rule must govern ; but where the nature of the inquiry involves a question of science or art, or of professional or mechanical skill, the opinions of witnesses skilled in tlic ])articular busi- ness to which the question relates are admissible. Insurance Co. v. ITarnior, 2 O. S. 452, 45G. Crowell V. Bank, 3 0. S. 40G. 328. EXPERTS— PRELIMINARY EXAMINATION. (a) The question Avhether expert testimony is competent is not always clear. If in the judgment of the court the opinion of one experienced in the particular calling would aid the jury in dealing with the facts of the case, it is proper to admit it. To a certain extent the calling of experts is dis- cretionary with the court : and it rests largely in its discretion when the case is tried to the court. A judgment will not be reversed for admitting immaterial expert testimony when it was not prejudicial. TJailwav v. Terry, 14 C. C .53(5, 7 C. D. 597. Kittrc.i-rc V. CiTu iniiati, 2 X. P. (X.S.) 6, 14 0. D. 504. Railroad v. Defiance, 52 0. S. 262. (b) The witness should first qualify as an expert by stating his means of knowledge which enables him to form a correct opinion; and it is for the court, in its discretion, to decide whether the witness is a competent expert. And the ruling is not reversible, unless founded on some error of law, some serious mistake or an abuse of discretion. Even though the preliminary examinjitioii of a Avitness does nut (pialify him as an expert, it is not reversible if all of his testimony in chief, together with that brought out on cross-exami!iatioTi, has the effect of qualifying him. Dock Co. V. Trapnell, 23 C C. (N.S.) 408. McCrack<.n v. West, 17 Oli. 10, 2.3. Hathaway v. Farley, 22 C C. (X.R.) 4fi2. § 330 METZLER'S OHIO TRIAL EVIDENCE 410 329. EXPERTS— PROVINCE OF JURY. (a) It is proper on the examination of an expert, even on his examination in chief, to require him to state the reasons for his opinion, so that the jury will be enabled to estimate the value of his testimony, and the adverse party will have an opportunity to cross-examine as to the opinion, I^rarshall v. Thomas, 21 C. J), 3fi3, 12 C. C. (X.S.) 3.53, 358. Koons V. State, 36 O. S. 1!)5, -191). McCracken v. West, 17 0!i. 16, 23. Clark V. State, 12 Oh. 483. (b) The jury are the sole judges of the weight to be given expert testimony. A jury may properly accept the testimony of the decedent's own physician as to the cause of his death, as against the testimony of the physician of the defendant company supported by a medical expert. There is an increasing loss of confidence in expert testimony, espe- cially opinions on hypothetical questions. Railway v. Kiner, 2 0. App. 82, 17 C. C. (X.S.) 431, 2.5 C. D. 175. Bahl V. Byal, 90 0. S. 129, 138. Beresford V. Stanley, 6 N. P. 38, 9 0. D. 134, 141. Cf. Brewing Co. v. Opp, 9 C. D. 516, 17 C. C. 465, 70. (c) It is improper for the trial-court to suggest to the jury that expert witnesses might, through inattention, fail to comprehend the true meaning of long hypothetical questions. To ascribe inatteii'ion to them, even by way of suggestion, may well mislead the jury into speculation concerning the unreliability of expert testimony even within the sphere of its conceded value, Ellis V. Twiggs, 17 C. C. (X.S.) 172. Cf. Traction Co. v. Biireh, 4 0. L. B. 660, 17 0. D. 739. 330. HYPOTHETICAL QUESTIONS— FACTS. (a) Witnesses shown to be learned, skilled or experienced in a particular art, science, trade or business, may, in a proper case, give their opinions upon a given state of facts j)ut in the form of a hypothetical question. It is not neces- sary that such a question be based on conceded facts or be 411 FACTS AND OPINIONS § 330 stated in the laii: the same state of facts, knowledge of which he had acquired in the same manner. Hoover V. Stato, 01 O. S. 41, 4(3. (b) But tlie testimony of an expert witness, in Avliieh he gives an opinion concerning a state of facts given in a hypothetical question, can not he impeached by testimony that lie had at anotlier time exjiressed an opinion as to the actual transaction wliich was different from his expert opin- ion on the state of facts as contained in the question. Hoover v. State, 91 O. S. 41, 46. 334. HEARSAY OPINION EXCLUDED. (a) The questions of fact in a case should be determined by the jury; and the conclusions of others, not witnesses, as to such facts are incompetent as evidence. Whether a pugi- listic encounter is a prize-tight or a boxing exhibition is a question for the jury; and it is not proper to admit in evi- dence on that question the rules adopted by associations for conducting such contests. Seville v. State, 49 0. S. 117. (b) The official report or opinion of a state visitor of workshops and factories as to the safety of the shafting in which the accident occurred, based upon an inspection made after the accident, is not proper evidence in the trial of an action for damages on account of injuries received in such shafting. Pen Co. V. Juengling, 2 O. App. 20, 21 C. C. (N.S.) .593, 2.5 C. D. .398. (c) An ordinance defining what are the business and closely built-up portions of a municipality is not competent as evidence in a prosecution for manslaughter in running an automobile at a greater rate of speed than is permitted by statute. State V. Born, 85 0. S. 430. Cf. State V. Collingsworth, 82 O. S. 154. (d) A coroner's inquest is not evidence against the de- fendant on his trial for murder, because its admission would violate that clause of the bill of rights which entitles the accused to meet the witnesses face to face. And in a suit on a life-insurance policy, the coroner's inquest and testi- 417 FACTS AND OPINIONS § 335 mony taken by the coroner offered by the company to show suicide is properly rejected. State V. Turner, Wriglit, 20. Wheeler v. State, 34 0. S. 304. SOS. Insurance Co. v. Schmidt, 40 O. S. 112. (e) An antopsy paper signed by the physicians Avho made a post mortem examination is not admissible as substantive evidence, Avhere the signatories had not been placed under oath and the privilege of cross-examination was not accorded; but such a paper may be used for the purpose of refreshing the memory of the Avitnesses. The same rule seems to apply to the return of the appraisers in a replevin suit. Armstrong v. Insurance Co., 4 O. App. 46, 22 C. C. (X.S.) 129. Wiborg V. Pfeifer^ S N. P. 273, 11 0. D. 428. Berwanger v. Bristol, 3 N. P. 1(51, 3 0. D. G83. Cf. Sigler v. Sogers, 46 Bull. 190. 335. VITAL ISSUES FOR JURY. (a) A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to deter- mine from the evidence is incompetent. Witnesses, if prop- erly qualified, may testify as to facts of such evidential value as would assist the. jury in arriving at its conclusions upon the determinative questions of the case. If the vital issues involved could be decided upon the mere o]>inions of wit- nesses, however expert, juries might be dispensed with alto- gether. Fowler v. Delaplain, 79 O. R. 279, 285. Torpedo Co., v. Fishburn, 61 0. S. 608. Oil Co. V. McCrory, 7 C. D. 344, 14 C. C. 304. (b) Where an issue is joined between tlic j)arties as to whether a policy of insurance Avas held by the defendants as members of a co-partnership, it is error for the court to i)cr- mit the defendants to state their mere opinions. Swing V. Rose, 75 0. S. 355. (c) Where the chief question was whether an original debtor was relea.sed by the cancellation of the note evidi'iu-ing the indebtedness and the execution of a new note to take its place, the intention of the parties to treat the original (l<'l)tor as released is not shown by testimony which amounts to a §335 METZLER'S OHIO TRIAL EVIDENCE 418 mere statement of the opinion of the witness as to the effect of the transaction. Bank v. Patton Co., 13 C. C. (X.S.) 280. 22 C. D. 627. (d) A witness should not be asked if he did work as agent of the defendant. lie must state the terms of his con- tract. And it is proper to exclude the answer of the payee of a note as to whether he authorized an attorney, wdio after- wards absconded, to collect the note. These questions are for the court and jury. Railroad v. Morey, 47 0. S. 207, 212. Evans v. Vaughn, 2 O. App. 421, 20 C. C. (N.S.) 425, 26 C. D. 128. (e) It is not competent for a defendant, who is sued for breach of a contract which he admits, to be asked by his own counsel mIiv he broke his contract, for that would permit him to give conclusions instead of the facts which he relied on as a justification. Hanna v. Crozier, 16 C. C. (X.S.) 40. (f) Where one of tbe issues in an action is whether a fence is sufficient to turn stock, it is error to permit wit- nesses, who show no other qualification than that they had seen the fence, to give to the jury their opinions as to the sufficiency of the fence to turn stock. Railroad v. Sclniltz, 43 0. S, 270. (g) Where tbe cause or origin b£ a Ere is the subject of inquiry, it is prejudicial error to permit witnesses to state the conclusions they have reached from things they have seen and the facts they have related ; but the witnesses having related the facts, the jury should be allowed to draw their own conclusions. Carter v. State, 4 0. App. 103, 22 C. C. (N.S.) 154. Canficld v. Film Exchange, 14 C. C. (N.S.) 143, 23 C. D. 157. Kohn V. State, 12 C. C. (N.S.) 197, 22 C. D. 711. (h) Tn a criminal prosecution where the defendant seeks to justify on the ground of self-defense, it is not competent to give in evidence the opinion of a witness as to the exist- ence of danger to life, or of great bodily harm, or that such danger might have been reasonably apprehended by the defendant. » State V. Rhoads, 29 0. S. 171. Cf. Stewart v. State, 19 Oh. 302. 419 FACTS AND OPINIONS §336 (i) "Whether a pugilistic encounter is a prize-fight or a Taoxing exhibition is not a question \ipon which expert testi- jnony is admissible on a trial of an indictment for engaging in a prize-fight. The question must be decided by the jury iipon the evidence of what actually took place, and not upon the opinions of pugilists and others experienced in such combats. Seville v. State, 40 0. S. 117. 336. EXCEPTIONS TO RULE. (a) But testimony of a witness on her examination in chief, in a criminal ])rosecution against her father for incest, that the latter had sexual intercourse with her, is not incom- petent as a mere conclusion ; it is simply permitting the wit- ness to testify to an act by giving it the ordinary name, and its admission as evidence is not prejudicial, especially when the witness was, on cross-examination, required to relate in full all the facts and circumstances. Straub v. State, 5 C. C. (X.S.) 529, 17 C. D. 50. Cf. Benedict v. State, 44 0. S. G79, 687. (b) Where it is material to show what the accused was doing at a particular time, a person in an adjoining room may testify to the nature of the sound which came from the room where accused was at the time; this testimony would not be the expression of an opinion or an impression, but a description of a sound. State V. Lopa, 96 0. S. 410, 412. (c) And in actions for libel, where the libel is ambigu- ous, witnesses who know the parties and circumstances may be called to state their opinions and judgment as to the per- son intended, without disclosing their reasons, leaving it lo the defendant to inquire into the reasons which support their conclusions. If this were not the rule, slanderers could escape punishment. McLiuijrlilin V. r^nssoll, 17 Oh. 47.-.. SI. Cf. Mengert v. I'ubV Co., 27 C. D. 2!)!), l(i C. C. (N.S.) 34, 36. CHAPTER XXIV. OPINION EVIDENCE. S37. Handwriting — General principles. ^.38. Standards of handwriting 339. Com])arison with standards. S40. Acquaintance with writing. 341. Handwriting witnesses. 342. Physical condition — ]\Iedical experts, 343. E.\'perts on jiermanency of injuries. 344. Experts in malpractice cases. 345. Cross-e.xamiiiation of medical experts. 34G. riiysical condition — Non-experts. 347 Mental ca])acity — General principles. 348. Menial capacity — Non-experts. 349. Mental capacity — Experts. 350. ]\Ientality — Weight of testimony. 351. l)amai;e to property. 352. Value of real estate. 353. Value of personalty. 354. Services of brokers. 355. Domestic services. 356. Services of attorneys. 357. Chemical experts. 358. Steamboat experts. 359. Railway experts. 360. Appliances. 361. Rate of speed. S62. Animals. 363. Negligence. 337. HANDWRITING— GENERAL PRINCIPLES. (a) The old rule was that the witness called upon to testify to handwriting must be acquainted with the hand- writing of the individual whose signature was to be proved. He must have seen him write, must have corresponded with him or must be acquainted with his handwriting from having seen writing admitted to be his. In no case could the fact be proved by comparison of hands. But in truth, all evi- dence of handwriting is derived from comparison, except 420 421 OPINION EVIDENCE §338 where the witness saw the signature made. The witness judges of the handwriting by comparing it in his mind with what he has previously seen or known of the handwriting of the individual. Hicks V. Person. 10 Oli. 42fi, 41. Burnliam v. Avit, 3 O. D. R. 3-27. (b) It has long been a well-settled rule that where the genuineness of liandwriting is involved, well-attested stand- ards of the hand of the person whose writing is in question may be introduced for the purpose of comparison with that which is disputed; and that this comparison may bo made not only by persons who have seen the party write or have acquired a knowledge of his hand by corresponding or trans- acting business Avith him, but also by experts. Bell V. Brewster, 44 0. S. 600, fiOG. 338. STANDARDS OF HANDWRITING. (a) It is proper to admit the testimony of experts as to the handwriting of a disputed ])ai)er l)y comparing it Avith other pajiers proved by direct evidence on the trial to have been Avritten by the person claimed to be the writer of the disputed paper, although such experts have no previous knowledge of the handwriting of the party. Calkins v. State, 14 0. S. 222. (b) Where signatures of a party arc already in the case and before the court and are admitted to be genuine, experts may be called to give their opinion whether another signa- ture is genuine, upon comparing the admitted signatures with the signature in controversy; or the comparison may bo made by the jury without the aid of experts. TTifks V. Person, 10 Oh. 426, 42. (c) Standards of comparison to be used by exports upon the trial of an issue as to the genuineness of a signature, when not papers already in tlie case or adniitled in he genuine, arc not admissible; for tliat pui-p(ts<'. unless Ihey are clearly proved by witnesses wlio ti'stify 0!i. '>, 7. Cf. State V. \\ooilruir, Tappati 58. 341. HANDWRITING WITNESSES. (a) It is improper to admit as evidence of handwriting the mere opinion and belief of a witness, without his first stating his means of acquiring a knowledge of such hand- Avriting. And all the facts upon which an expert forms jiis opinion should be before the court and jury, to the end that they should determine, as far as they may be able to do so, wheth^ the opinion given is well founded, and so that the opposing counsel may have an opportunity to cross-examine as to such facts. :^Icrraeken v. West, 17 Oli. 16, 23. Koons V. State, 36 0. S. 11).'), 19!). (b) The genuineness of a writing was in controversy in a cause, and an expert, called as a witness, stated in connec- tion with his opinion, wlii<'li opinion was material ii|inn the matters so in controvci-sy. certain facts upon which the opinion was founded, and the court afterward excluded from §342 METZLER'S OHIO TRIAL EVIDENCE 426 the consideration of the jury such facts, but refused to ex- clude the opinion. It was held that this was error. Koons V. State, 36 0. S. 195. (c) An expert witness on handwriting should be confined to matters apparent on the face of the writing. He can not be permitted by argument or inference to draw conclusions as to matters not appearing on the face of the writing; and the value of his opinion will depend upon the clearness Avith which he demonstrates its correctness. Marshall v. Tliomas, 12 C. C. (?s\S.) 353, 21 C. T). .363. (d) Where some experts as to genuineness of a signature j)ointed out the facts on which their opinions were based and others did not, a refusal to charge that the facts have greater weight than the oi)inions is not error, for this would be tell- ing the jury what evidence was the best. Breck v. State, 4 C. C. ](i(h 2 C. 1). 477. 342. PHYSICAL CONDITION— MEDICAL EXPERTS. (a) Medical expert testimony need not be based entirely upon personal experience. Knowledge gained from reading books of science, and experiments upon lower animals, and scientific investigation made along similar lines, are a suffi- cient predicate for such expert testimony. But in a homicide case it was held prror to admit the opinion of a physician that the contents of the vial was poison, when his only knowledge thereof is that he tried it on a cat and it died. Frank v. Brewing Co.. 5 O. L. B. 5.59, 53 Bull. 37. Bose V. State, 7 C. D. 226, 13 C. C. 342, .353. « (b) A physician should state the reasons for his opinion, and the facts on which it is based ; and if not sustained by them, it is entitled to little weight. Like the opinions of neighbors and acquaintances, it should be regarded as of little weight if not well sustained by reasons and facts that admit of no misconstructions, and supported by authority of acknowledged credit. Clark V. State, 12 Oli. 483, 491. 427 OPINION EVIDENCE §342 (c) All export can not be allowed to give an opiuion based upon statements made to him by parties out of court and not under oath. His opinion, to be admissible, must be founded either on his own personal knowledge of the facts, or else upon a hypothetical question ; hence the opinion of a physician called in consultation with the attending physician can not be received, if based upon declarations as to symp- toms made to him by such physician, or by the wife or nurse of the patient. But a physician's testimony in regard to the injuries or physical condition of his patient is not to be excluded because part of the examination of the patient con- sisted in questioning him. Allianeo v. Caniplu'll. C. 0. 70)2, 17 C. C. 505, 604. Traction Co. v. Riskoy, 22 C. C. (N.S.) 301. (d) A physician who makes an examination of one who has received ph^'sical injuries, for the sole purpose of en- abling him to testify as an expert in an action to recover damages for such injuries, can not testify to statements made by the party as to his condition ; and an opinion given by the physician must not be based in any substantial degree on statements of the injured party as to subjective symptoms. In general, a physician when testifying as an expert should be able to state to the jury, before giving his opinion, that such opinion is based upon his examination of the person, without being affected in any substantial degree by the re- lating to him by the person of subjective symptoms. Railways v. Pruis, 7 O. App. 412, 2S 0. C. A. SC)!!. 20 C. D. 05. Penn. Co. v. Files, 65 O. S. 403. Railway v. Hobart, 13 C. C. (N.S.) 592, 22 C. T>. 154. (e) In a personal injury case, an expert may be asked hypothetically whether the injuries could be attributed to an accident of the kind shown if supplemented by other evi- dence tending to exclude all other causes or by evidence showing a causal relation between the accident and the IT juries. Railway v. Galons, 18 C. C. (N.S.) 173. (f) A physician can not be allowed to express his opinion so as to imply his belief in the existence of material facts § 343 METZLER'S OHIO TRIAL EVIDENCE 428 outside of his profession and not within his own knowledge, and Avhieh are not subjects of mere opinion. Thus, a physi- cian testifying to the results of his examination of a male and female can not say that because he knew the former had gonorrhea he was therefore of opinion that the symp- toms of the latter were of the same disease, for it implies carnal connection between the two. Moore v. State. 17 0. S. 521, 520. • (g") A medical expert can not be asked whether a brake- man's death was caused by slipping off the train, or by being knocked off by contact with a bridge. And a doctor who made the post mortem examination and describes the Avounds can not be asked by the state as to the probable relative posi- tions of the parties when the fatal blow was struck. This is mere opinion based upon the facts proven, and the jury can draw the inference as well as the witness. rtailway v. Sliook, C. D. 0, Ifi C. C. fifio. Perkins v. State, 3 C. D. 21)2, 5. C. C. 507. 343. EXPERTS ON PERMANENCY OF INJURIES. (a) In an action to recover damages for personal injuries, no recovery can be had for future pain and suffering except such as the evidence shows to be reasonably certain to result from the injuries sustained. Evidence that pain and suffering will probably follow is competent ; but evidence that such results may or might follow is not competent. Railways v. Poland, 7 0. App. .S97, 27 0. C. A. 105, 2S C. D. 108. Railways v. Pnis, 7 O. App. 412, 28 O. C. A. 369, 20 C. D. 65. I'enn. Co. v. Files, 65 O. S. 403. (b) The expert opinion of a physician in an action for personal injuries, as to the probable result or the permanency of injuries received, is competent and need not be confined simply to showing that such results followed more often than otherwise. It is also competent to show that certain injuries are always permanent, or, if sometimes permanent o'^d some- times not, that also may be shown ; all are proper matters for the jury. So the testimony of a physician that such an in- jury might produce very disastrous effects, is not improper. Transit Co. v. Stephenson, 12 C. D. 631. Cf. Railroad v. Suhrwiar, 20 C. C. 558, 10 C. D. 713. 429 OPINION EVIDENCE §345 (c) A practicing physician, familiar with the nature, ex- tent and condi-tion of the injury in question, in its early stages or history, being asked as to the extent of the injury, or if he could at the time of trial determine as to whether or not the injury would be permanent, answers that ho could form an opinion, may give it as his opinion that such injury is or is not permanent. Railway v. Bell, 5 C. C. (X.S.) 321, IG C. D. G91. 344. EXPERTS IN MALPRACTICE CASES. (a) In cases where malpractice is charged, the jury must be largely guided by the testimony of expert Avitnesses ; and they can not disregard the testimony of such Avitnesses to the same extent as experts in other classes of cases. And there must be proof by the testimony of experts of some specitic act of unskillfulness or negligence, from the nature of which the injury to the patient may be inferred. Moelilnian v. Ransolioff, 17 X. P. (X.S.) 241, 26 0. 1). 541. Smith V. Brown, 12 0. D. 522. (b) In an action for damages on account of failure on the part of the defendant physician to exercise due skill and care in the treatment of the plaintiff, it is not error to admit the testimony of a physician of recognized professional stand- ing as to Avhat constitutes the ordinary and proper, usual and approved method of treatment of wounds. Stitos V. Hier, 11 X. P. (X.S.) IGl, 25 0. D. 88. Hior V. Stites, 91 0. S. 127. (c) Where the defense in libel is that the defendants had reason to believe to be true their charge against plaintiff of malpractice in an obstetrical case and did so believe, defend- ants may be permitted to prove that they believed the charge, true and that the belief was well grounded by showing by expert testimony that in such cases it was necessary to lake certain precautions to avoid blood-poison. Mauk V. Brundagc, 68 0. S. 89, 95. 345. CROSS-EXAMINATION OF MEDICAL EXPERTS. (a) A (juestion 1o a niedi<'al cxpcrl nii .toss cNnniinaf io-i ■whether the physician in charge of tk^ case would not kiiou- §346 METZLER'S OHIO TRIAL EVIDENCE 430 more about the condition of the patient than a physician an- swering a hypothetical question, is properly excluded ; as it involves investigating the relative skill of the witnesses and would be mere opinion. Brewing Co. v.- Opp, 9 C. D. 51G, 17 C. C. 465, 470. (b) In a personal injury case against a corporation, it is proper to ask a physician testifying as an expert for the defendant, if he has not frequently acted as an expert for defendant corporations. This does not transcend the limits of reasonable cross-examination. Railway v. Gatens, 18 C. C. (N.S.) 173. (c) Though the attending physician's declarations to others as to the medicines he gave are hearsay, yet a consult- ing physician having testified that he recommended continu- ing the treatment of the other physician, may be asked what that treatment was, in order to test him as an expert. Insurance Co. v. LaBoiteaux, 5 0. D. R. 242, 4 A. L. R. 1. 346. PHYSICAL CONDITION— NON-EXPERTS. (a) A non-professional witness who has had opportuni- ties to observe a sick or injured person may give in evidence his opinion of the condition of such person, in respect to his being weak and helpless or not, and of the degree of suffer- ing which ho endured, provided such opinion is founded on his own observation of the person to whom his evidence relates, and is limited to the time that the person was under the observation of the witness. Shelby V. Clagett, 40 O. S. 540. Railway v. Gaffney, fi C. D. 94, C. C. 32. Transit Co. v. Stephenson. 12 C. D. 631. (b) The tones of voice, the expressions of the face, and the movements of the limbs, which are the natural language of pain, so readily and clearly understood by those about the sufferer, can not be reproduced so as to impress the jury as they did the wntness ; neither can those appearances that accompany and establish the fact of weakness and helpless- ness. Shelby V. Clagett, 46 0. S. 549, 552. 4:11 OPINION EVIDENCE § 3-47 (c) It is competent for a non-professional witness to testify as to the general state of health of a party, althougii it would be incompetent for such witness to go into detail and determine the technical disease with which the party ■was afflicted. lie may give an opinion as to apparent suffer- ing and pain complained of by the person while under liis observation, but may not state the cause or character of the disease or of the pain. :\ronroeville v. Weilil, 13 C. C. 689, 6 C. D. 188. Railway v. Beckwitb, 12 C. D. 559. (d) A non-expert witness may answer a question as to the condition of a person injured, as to the suffering and pain and as to strength and ability to work ; and he may testify that plaintiff was not able to work at all. The party's own testimony as Avell as that of other non-expert witnesses is admissible, when the question is whether the party was suffering from sickness disabling him from work. Railway v. Godwin, 12 C. D. 537. :\lyers v. Lucas, 16 C. C. 545, 8 C. D. 431. Moon V. Middletown, 7 C. D. 579, 14 C. C. 498, 502. (e) While a daughter of plaintiff may testify that since the accident her mother had done no ironing, washing or sweeping, and may testify as to her mother's apparent phys- ical condition, yet it is error to alloAV her to give her opinion as to why the mother did not work, as that she was too nervous. Traction Co. v. Hanson, 16 C. C. (N.S.) 296. 347. MENTAL CAPACITY-GENERAL PRINCIPLES. (a) In a proceeding to contest a will, it is not competent for a witness to give an opinion as to whether the testator had capacity to make a will. But the physical and mental conditions from which it may be determined l)y the court and jury whether he had such capacity are facts which may be shown by evidence of manifestations of such conditions. Bahl V. Byal, 00 O. S. 129. (b) A witness can not be asked his opinion as to the capacity of a testator to make a will. l)ecause su<'h inquiry § 348 METZLER'S OHIO TRIAL EVIDENCE 432 involves a question of law and fact; and to the extent that capacity is involved in the issue it is the very question to be determined by the jury. It also assumes that the witness knows the degree of capacity which the law requires for the performance of the act of executing a will. Run van v. Price, M O. S. 1. Moore v. Caldwell, C. (. (X.R.) 4S4. 17 C. D. 440. Sliuey V. Fink, 5 0. App. 351), 26 C. C. (N.S ) 106. Cf. Walbli V. Walsh, IS C. C. (N.S.i ill. (c) Asking the subscribing witness to state whether or not the testator had capacity to form a purpose and intention of disposing of his i)roperty by will, is not contrary to the rule of Riinyan v. Price, for it does not invade the province of the jury to ask as to the condition of his mind. Diinlap V. Dunlap, SO 0. S. 2R. (d) It is competent for the physician of a testator to ex- l)ress an opinion as to tiie actual condition "of the patient's mind, founded on his study and observation of the testator while in professional attendance on him at tiie time and prior to the date of the Avill, and whether he was cai)able of com- prehending large and complicated business propositions or the distribution of a large estate. Balil V. Byal, 90 O. S. l-2n. Cf. P.roekrneier v. Buck, 12 Bull. 21. '5, (). 0. R. :}5:5. 348. MENTAL CAPACITY— NON-EXPERTS. (a) It is the established law of Ohio that in an action in contest of the validity of a will, a lay witness, although not a subscribing witness, who has theretofore given testimony upon which an opinion can reasonably be based, may give his opinion as to the soundness or unsoundness of the mind of the testator. Kiemos v. Niemos, fl7 O. S. 145. (b) In such an action, it is competent for a lay witness, so qualified, to give his opinion as to the capacity of the testator to understand im[)ortant business matters, although the absence of such capacity need not necessarily disqualify a testator from making a valid disposition of his property. 433 OPINION EVIDENCE §348 Such testimony is cDiupeteiit as ri'tUH-titi (). S. ], 14. Striek v. Kiss, o O. Aj)]). 2!)2, 20 C. C. (X.S.) 4r)fi, 27 C. 1). 554. Kogers v. Monroe, 20 C. C. (X.S.) l!i3. Cf. Railroad v. Marsli, 03 O. S. 236. Cf. Dunlap v. Dunlap, 80 0. S. 28, 32. (g) Where a witness is called by the defendant in a will contest to give his opinion in chief as to the mental capacity of the testator, no right exists in favor of the plaintiff to cross-examine him upon the facts and grounds upon which his opinion is based, until after the conclusion of the exami- nation in chief. Moore V. Caldwell. C. C. (N.S.) 484. 17 C. ]). 440. (h) Where Avitnesses have detailed in their testimony the conversations they had with a party when it is alleged he executed a release, and what he did and how he acted, they should be permitted to give their opinions as to his mental condition on the occasion when it is said he signed the release. Jones V. Pickle, 7 O. App. 33, 27 0. C. A. 413, 29 C. D. 364. 349. MENTAL CAPACITY— EXPERTS. (a) A hypothetical question propounded to an expert by the contestant in an action to set aside a will, which indicates what contestant claims to be the physical and mental condi- tion of testator at the time of making of his alleged will, and that as a consequence of such condition he was of unsound mind, which indicia of lack of testamentary capacity are con- troverted in the case, is competent Avhere there is evidence tending to establish the facts assumed in the question. West V. Knoppenberger, 4 C. C. (N.S.) 305, 10 C. D. 108. (b) Where the defense of insanity is relied upon in the trial of an indictment for murder in the first degree, the opinion of a medical exj)ert upon a hypothetical case is ir- relevant, if the case assumes material facts which no evidence tends to establish, as that an ugly feeling existed, and that the accused wished to have control of deceased's property. Sliarkcv v. State. 4 C. C. 101. 2 C. I). 443. 435 OPINION EVIDENCE §350 (c) On a trial for murder, Avliere insanity was set up as a defense, a i)liysician having stated, on examination in chief, that, in his opinion, the prisoner Avas insane, in order to test the accuracy and value of that opinion, he may be asked, on cross-examination, Avhether, in his opinion, the accused knew riglit from wrong— that it would be wrong for him to com- mit murder, rape, arson, or burglary. Clark V. State, 12 Oh. 483. 350. MENTALITY— WEIGHT OF TESTIMONY. (a) The testimony of non-expert witnesses acquainted with the testator, giving opinions as to the mental capacity of a testator to make a will in connection with the facts upon which their opinions are based, is competent notwithstanding their testimony discloses little opportunity to observe or little knowledge of the facts, and their inability to state facts shedding much light on testator's condition. T'iid(>r such circumstances the question is as to the weight rather than the competency of the testimony. Kettemaim v. :M('tzgor, 3 C. C. (X.S.) 224, 13 C. D. (11. Clark V. State, 12 OIi. 483. See Clomien v, Weidemer, 27 O. C. A. 177, 2!) C. 1). 1. (b) A delusion on the part of a testator does not con- stitute mental incapacity, unless it is an insane delusion ; and in determining whether a testator was suffering from such a delusion at the time he made his will, the testimony offered on the subject should be considered by the jury, that of ex- I)erts not being allowed to outweigh absolutely that of lay- men who had known the testator for years, and had business transactions with him, and frequently met and conversed with him. Moore v. Caldwoll. 6 C. C. (N.S.) 484, 17 C. O. 44!). Clark V. State, 12 Oh. 483, 490. (c) It is not error to charge the jury to receive expert evidence of insanity, in a homicide case, with caution, where the charge ai)pIios to l)otli sides, ;iii(l the cli.ii-jn'tcr of the evidence furnished good reasons for the caution. State V. Miller, 7 C. I). .^).-.2, 13 C C (i7. § 351 METZLER'S OHIO TRIAL EVIDENCE 436 351. DAMAGE TO PROPERTY. (a) In an action for damages to real property, testimony is admissible to show the exact character of the injury suf- fered. If the injury is permanent or irreparable, the measure of damages is the difference in values of the property before and after the injury. If the injury is susceptible of repair for an amount less than its loss in value, the measure of damages is the reasonable cost of repair plus damages for loss of use. Cincinnati v. Wright, 2 N. P. (N.S.) 53, 14 0. D. 600. (b) A question asking what injury a ditch would do to certain land, to which the witness answered "None," is not improper as calling for an opinion as to amount, but rather as asking for a description of the manner or a statement of the nature of the injury to the land. Miller V. Weber, 1 C. C. 130, 1 C. D. 77. (c) In an action to recover damages to abutting property by building a railroad in a street, witnesses should not be permitted to testify how much less was received as rent than before the track was laid in front of it, nor to give their opinion as to the "difference in value of the property with the track in the street and if it was some other place." Eaihvay v. Gardner. 45 O. S. SOn. Cf. Powers v. Railway, 33 0. S. 42!). (d) The opinion of a witness as to the amount of dam- ages which a land-owner will sustain by the appropriation of a portion of his land for the purpose of constructing a rail- road over it, is not admissible as evidence. But a witness may be allowed to give his opinion as to the value of the land affected, or the value of the land before and after. Railroad v. Ball, 5 0. S. 56S. Railroad v. Campbell, 4 O. S. 5S3. Railroad v. Gardner, 4.5 O. S. 309. Powers V. Railway, 33 0. S. 429. (e) A person who is present during the trial of a case r'-d has heard witnesses describe the manner in which a water-power mill was injured by the erection of a dam across 437 OPINION EVIDENCE §352 a stream of water below it, is not competent to give liis ojiinion of tlie damages sustained by the party injured. Shepherd v. Willis, 10 Oh. 142. (f) The rule in regard to personalty is the same. In an action on an attachment bond, it is error to admit in evidence the opinions of witnesses as to the amount of h)ss or damage sustained by dei)rociation in the market value of a stock of goods, caused by the seizure and detention thereof under the order of attachment. Alexander v. Jacoby, 23 0. S. 3.")S. 352. VALUE OF REAL ESTATE. (a) Where a witness is an expert, not only as to the value of the land, but as to the purposes for which it may be used, he may be questioned as to both ; and he may give in chief intrinsic characteristics of the property that make it of special value. The refusal to allow such testimony is prejudicial, and is not cured by a cross-examination render- ing the objection to his testimony no longer available, or by allowing other witnesses to testify to the same facts. Foote V. Railway, 21 C. C. 310, 11 C D. fiS.^. (b) In an action for the loss of a mill destroyed by fire, a witness who was well aeqainted with the property and knew its cost, although Tiot an expert, was properly permit- ted to testify as to its value. Insurance Co. v. Bowersox. P. f. C. 1. 3 C. D. 321. Denison University v. Manninj:. Iddinf^s. 71 (c) Where valuable fruit-trees stand on hind appropri- ated, their value may be shown l)y proving the value of the land with and without the trees thereon. And to prove the value of a well thereon, the cost of the same may l)e shown. As there is no market value for such improvements, it is proper to ascertain their value separate fi-oni the hiiul. Foote V. Railway, 21 C. C. 310. 11 C. I). fiS-l. (d) The amount paid by the owner of real jjroperty does not fix its jiresent value, nor is its present vnlue sliown by evidence as to its value one vear Ix'fore : l)nt both have a R 353 METZLER'S OHIO TRIAL EVIDENCE 438 bearing on its present value, and are admissible in evidence. The proper test of the value is the general selling price in the neighborhood. Railroad v. Gorsucb, S C. C (K.S.) 297, 18 C. T>. 46S. (e) In fixing the market value of property and its en- hancement in value from street improvement, greater weight attaches to the opinions of experts who base their judgments upon actual sales, than to the opinions of residents who have purchased property in the neighborhood for permanent homes and give little consideration to its market value as it may be affected from time to time by various causes. Waldsclimidt V. Bowland, 6 C. C. (N.S.) 99, 17 C. D. 782. (f) On cross-examination of a witness as to value of real property, sales in the neighborhood may be inquired about to test knowledge; but it is error to incorporate into the questions an assumption that such sales at prices named have occurred. The prejudice may be avoided if the witness knows of such sales and testifies thereto. Morison v. Cleveland, 17 C. C. (N.S.) 427. (g-) Questions calling for mental processes of reasoning of a witness in an action to determine the proper tax of property, for the purpose of ascertaining how he arrived at a certain valuation are incompetent. But he may be exam- ined as to the value of the different parts making up the tract. Doshler v. Simms. 2 X. P. (N.S.) 385, 14 0. D. 532. 353. VALUE OF PERSONALTY. (a) In an action on a fire insurance policy covering household goods, the owner and his wife may give their opinions as to the value of their property; and evidence of its cost is some evidence of its actual value. An owner may always give his opinion of the value of his own property. Insurance Co. v. Burke, 19 C. C. (N.S.) 289. (b) A witness who has been a farmer for ten years and has made one purchase of grooving wheat in that time, may testify as to the value of growing wheat. It might not be a 439 OPINION Evidence §354 very great aid to the jui-y ; but ho had some knowledge not possessed by men wlio knew nothing of farming and who had never made such a purchase. Baldwin v. Curth, 9 C. D. 594. 17 C. C. 174. S. (c) It is not necessary that a dealer in coal for twelve years, who has been called to testify as to the price of coal during a specified period while he was in the business, should further qualify as an expert. Coal Mining Co. v. Jones Co., 15 C. C. (N.S.) 300. (d) Where defendant in the autumn employed plaintiffs to complete houses begun under a rescinded contract made in the spring, promising to pay the additional cost caused by rise of jnices, it is not error to allow plaintiffs to ask a wit- ness generally the difference in prices between spring and fall, Avithout asking as to the particular year, preparatory to asking as to the year in question. The witness may also be asked the difference by way of percentum for that year, in- stead of the difference in dollars and cents. Kugler V. Wiseman, 20 Oh. 361. 354. SERVICES OF BROKERS. (a) On the question of the value of services in the sale of corporate bonds, brokers and others having superior knowledge of such business are competent witnesses. And they may be cross-examined as to the value of such services under a special contract for a sale of a portion of the bonds ; and their inability to determine would go to the weight and not to the competency of their evidence. Railroad v. Everett, 10 C. D. 493, 19 C. C. 205. (b) Where a person seeks as compensation not customary commissions, but the reasonable value, cross-examination of experts should not be restricted to Avhal was usually paid : but the difficulty of the task, the time and .skill re(|uired, and the value of the results achieved may all be considered. Railway v. Everett, 10 C. D. 493, 19 C. C. 20.-5. (c) Tn a suit for the recovery of the value of services in effecting a lease, the oijinion of the jinrty performing the K 355 METZLER-S OHIO TRIAL EVIDENCE 440 services is competrii-t. And independent of opinions as to value, the testimony of witnesses giving the facts touching the character and extent of tlie services and the time con- sumed in their performance is evidence of tlieir value. Jewelry Co. v. Hazen, 6 C. C. (N.S.) 606, 17 C D. 070. (d) Where services in acquiring real estate are to be J^endered at such price as on completion the employer in his opinion shall consider reasonable, and the employer does not exercise this right at completion nor on request thereafter, but waits until he is sued and is on the witness-stand, it is proper to rule out his opinion and alloV the reasonable value. Railway v. Lott, 6 C. D. 447, 10 C. C. 249. 355. DOMESTIC SERVICES. (a) The value of services as a domestic and nurse may be asked of a married woman who, as a housekeeper and neighbor, knows the character of the work and answers from experience, but she should first be qualified by asking her if she knows what is usually paid for such services. The state- ment of a witness as to what was charged by another for similar services should be excluded. Allen V. Lowe, 19 C. C. 353, 10 C. D. 353. (b) When upon the trial of the general issue, in an ac- tion upon a quantum meruit for services of a domestic char- acter, the plaintiff offers evidence showing the facts from which a promise to pay may properly be inferred, and also showing the nature and extent of the services rendered, the case should be submitted to the jury, although no witness expresses an opinion as to the value of the services. Even if opinion evidence on the subject should be adduced, the jury would not be bound by it. Hossler v. Trump, 62 0. S. 130. Mclntire v. Garlick, 4 C. D. -l-2!). S C. C. 416. Contra, Johnson v. Spiegel, 4 C. C. 388, 2 C. D. 012. (c) Upon the trial of an action to recover damages for wrongful death, it is error to permit the plaintiff, the parent of the deceased, to give his opinion as to the value of his 441 OPINION EVIDENCE §356 child's services to him and his family at the time of her death and thereafter, that being for the determination of the jury upon facts given in evidence. Traction Co. v. Stephens, 75 0. S. 171. 356. SERVICES OF ATTORNEYS. (a) Upon the trial of an issue of fact, where the value of ])rofessional services claimed to have been rendered for the defendant by an attorney is in controversy, it is com- petent for other attorneys, called as witnesses, to give their opinion as to the value of such services; and such opinion may be given in reply to a question stating the amount and character of such services hypothetically. Williams v. Brown. 28 0. S. 547. (b) But if such hypothetical statement materially exag- gerates the services rendered, and is unwarranted by any testimony in the case, an opinion as to the value of such sup- posed services is at least irrelevant, and an objection to it should be sustained. Williams v. Brown, 28 0. S. 547. SafBn V. Thomas, 8 C. C. 253, 4 C. D. 438. (c) Where it is not shown that such Avitness has any per- sonal knowledge of the case in which the services are claimed to have been rendered, or of the amount and character of such services, the party calling him as a witness has no riirlit to ask him, "From what you know of this case, what do you think would be a fair amount for \ho attorney's service?" And where such question is objected to by the opposite party, it is error to allow it to be answered by an expression of the opinion of the witness. Williams v. Brown, 28 0. S. 547. (d) A verdict fixing the compensation to be paid for the services of an attorney will not be set aside because of the great length of the hypotlietical question submitted to expert witnesses called as to value, whore tlie question was made no longer than was necessary to iiicorporatt' ii1l tlic facts relating to tlie employment and the amount ami character of the work performed. Traction Co. v. Burch, 4 O. L. B. f.fiO, 17 O. T^. 739. § 357 METZLER'S OHIO TRIAL EVIDENCE 442 357. CHEMICAL EXPERTS. (a) On the trial of one charged with selling oleomar- garine containing coloring matter, it is not error to permit a chemist experienced in the analysis of food products to testify that the article sold resembles, is a substitute for or imitation of butter. State V. Ehinger, 67 0. S. 51. (b) In the trial of an action for the negligent discharge of a nitro-glycerine torpedo in an oil-well, it is competent for a witness who, by experience in such work, has made him- self familiar with the character and explosive qualities of that article, and the effect of the explosion of it in forcing out gas, and the dangers incident to the contact of such gas with the atmosphere and with fire, to testify as an expert in regard to the proper time to explode such torpedo in a M^ell. Torpedo Co., v. Fishburn, 61 0. S. 608. (c) In an action for nuisance, the presence or absence of gases may be shown by the tests of chemical experts. In an action for the price of manufactured goods sold on warranty, evidence of laboratory tests of the goods delivered is ad- missible. ^IcClun^ V. Coke Co., 31 Bull. 9, 1 0. D. 247. Cogswell Co. V. Sibley, 17 C. C. (N.S.) 3. (d) In a prosecution for the pollution of a stream, chemi- cal analysis of the water after the date laid in the informa- tion, with proof that the sewage conditions were the same, is the best chemical evidence; and its exclusion is error, which is not cured by admitting an analysis by the same witness prior to the information. Burch V. State, 5 0. D. 137, 7 X. P. 379. (e) An analysis of a portion of the impure food on which a prosecution is based may be ordered by the court. The court should select the expert, and the analysis should be in the presence of both parties. It should be refused the de- fendant if the analysis will destroy all of the substance for evidentiary purposes, or if his motive is merely to find out the state's case, or is out of curiosity, or is vexatious. Breckenridf^e v. State, 4 O. D. 3P0. 3 N". P. 313. ^^^ OPINION EVIDENCE §359 (f) After a homicide by stabbing, the accused Avas ar- rested and a knife was found in his pocket. A substance scraped from the blade of the knife was chcmicallv analyzed by experts, who testified that it was blood. Fabian v. State, 97 0. S. 184, 188. 358. STEAMBOAT EXPERTS. (a) One conversant with steamboats, as master, engineer and builder, having examined a boat injured by eolHsion. may state, in connection with the facts, his opinion as to the direction from which the boat was struck at the moment of contact. Any such person having examined the injured boat may describe her condition, and say whether, in his opinion, she is Avorth repairing. .Clipper (Steamboat) v. Logan, 18 Oh. 373. (b) An expert may give his opinion that a steamboat navigated with due care might suddenly spring a leak and sink without apparent or known cause ; and that boats carry- ing cotton usually leak and require pumping, as tending to show how the words "tight and sound" in a policy were understood by the parties. Insurance Co. v. ToLin, 32 0. S. 77. (c) When the actual effect of a known agency is un- known, and the oi)inion of one familiar, by actual observa- tion, Avith the matter under consideration, is the best testi- mony the subject-matter to be investigated affords, the opin- ion of such person may be received as testimony; hence, it is competent to receive as testimony the opinion of skilled river navigators, familiar with the subject, as to the effect the wave-swells made by a larger steamboat would have upon a smaller and heavily laden one, wliile passing. Insurance Co. v. Tobin, 32 0. S. 78. 359. RAILWAY EXPERTS. (a) The opinions of men experienced in tlie running and movement of trains \\li() have knowledge of the duties of those employed in such work, may be . Castings Co. v. Luscombe, 6 C. D. POl, C. C. 0^0, C.^X r,o\ve V. P.owe, 5 C. C. (X.S.) 233, 1(5 C D. 4;n. Cf. Railway v. Mon-lan.I, 12 C. D. 012. (f) One who has for ten years rniiili" (•.ir-liuildiiig hh business and given special attention to f;ir-wli('cls and tlicii- construction, is competent to give an opinion of the value o^' § 361 METZLER'S OHIO TRIAL EVIDENCE 446 the hammer-test as a means of discovering defects. And testimony to the effect that a break in a car-wheel was an old break is not rendered incompetent because the appear- ance of the iron was not described. Railroad v. Sliejipard, M] 0. S. OS. Traction Co. v. Ward, 6 C. C. (X.S.) 385, 17 C. D. 761. (g) Expert evidence may properly be admitted in a criminal trial, where the charge is gambling by means of a game known as craps or policy. Experts may be permitted to testify as to what constitutes the games of policy and craps and explain the same to the jury, as jurors are not presumed to know or be acquainted with the different games of chance. Fields V. State, 4 N. P. (X.S.; 4(il, 17 O. D. IG. Adams v. State, 14 0. D. 257. 361. RATE OF SPEED. (a) Witnesses having no special knoAvledge or experi- ence in the running or management of cars or trains, but having the ordinary, average familiarity with them, who state that they are qualified to give an opinion as to speed, are competent to express an opinion as to the rate of speed of a street-car or train, in an action for personal injuries or wrongful death where the speed of the train or car is ma- terial. Railway v. Van Horn, 21 C. C. 337, 12 C. D. 106. Transit Co. v. Dagenbach, 11 C. D. 307. Railroad v. Stoltz, 9 C. D. 638, 18 C. C. 93. Railroad v. Westenhuber, 22 C. C. 67, 12 C. D. 22. (b) The opinion as to the speed of a train simply involves the ordinary ideas of time, space and motion. It is a com- mon occurrence for witnesses to testify as to the rate at M'hich a man is moving, or at which a horse is moving; and a moving train is simply one of another class of moving ob- jects, and is a matter within the common observation and ex- perience of men. While a non-expert may not be so accurate as an expert in estimating speed, yet his knowledge of speed may enable him to give testimony which will be an aid in determining whether under all the circumstances of the case 447 OPINION EVIDENCE §361 the speed was excessive. The evidence of the expert who has had daih' opportunities to observe the speed of trains might be of greater weight than that of .the ordinary witness; but that goes only to the weight of tlio testimony, and not to the competency of the witnesses. Railway v. Van TTorn, 21 C. C. 337, 12 C. D. lOfi. Railroad v. Stoltz, I) C. D. 638, IS C. C. 93. Traction Co. v. Beebe, 3 O. App. 213, 21 C. C. (X.S.) 'AS. Cf. Nicholson v. Traction Co., U X. P. (N.S.) 177, 23 ft. I), l.-.l. (c) It does not require an expert to determine, when riding in a car, whether the speed has been slackened; and the testimony of passengers upon an electric car that just prior to an accident the car was running at its usual speed, and that there was no slackening of speed until the collision occurred, is competent. But where the opinion of a witness as to rate of speed is based on results of a collision, his evi- dence should be excluded. Railway v. TTnntor, 10 C. C. (X.S.) 564, 12 C. D. 760. Railway v. Boltz, 16 C. C. (N.S.) 383. (d) An opinion as to the speed at which an electric car is being run is competent when expressed by one who re- sides where he sees such cars in operation daily, and often rides upon them, notwithstanding he has had no experience in their operation. Such an opinion should be allowed to go to the jury for what it is worth. Traction Co. v. Dro\\T], 7 C. C. (X.S.) 540, IS C. D. 735. (e) "Where the driver of an automobile testifies that he has had seven or eight years' experience and knew \ho s|)(mm1 at which he was going, it is error to exclude his ojtinion although he did not look at his speedometer. Kramer v. Elake, 18 C. C. (N.S.) 77, 81. (f) Where the plaintiff has alleged thai llic autoniobilc which collided witli liis own was being driven at a rui-ious. unlawful and reckless rate of speed, contrary to the hiws of the state, and that the driver had no conti-ol over said ma chine at the time of the collision, it is prejudicial error to sustain an objection to tlic lesliiiiony of an ex|)erl. wlio, if § 363 METZLER'S OHIO TRIAL EVIDENCE 448 permitted, would have testified that in liis opinion the defend- ant driver did not have his machine under control. Beeson v. Crisa, 7 App. 482, 27 O. C. A. 454, 29 C. D. 300. 362. ANIMALS. (a) In an action for rescission of a contract for the pur- chase of a horse for failure of warranty, it is not error to permit one who has had long experience with horses to testify, although not a veterinarian. And it is competent to prove by one acquainted with the habits and disposition of horses that a stallion is liable to jump over fences or break out of pasture. Palmer v. Cowie, 7 C. C. (X.S.) 46, 17 C. D. 617. Kittredge v. Cincinnati, C. C. (N.S.) 046, IS C. D. 100. (b) If a non-expert witness has stated the facts within his knowledge and has been allowed without objection to give his opinion that a dog was of a quiet disposition, he may be cross-examined as to the facts on which his opinion is based and as to his want of knowledge of facts ; but he can not be asked his opinion on facts not within his knowledge. Hayes v. Smith, 62 0. S. 161. 363. NEGLIGENCE. (a) Whether this or that act amounts to negligence is ordinarily a matter of judgment and common experience rather than of science or skill, and the opinions of experts are inadmissible in evidence concerning the same. An expert may be asked whether certain things were ])roperly or skill- fully done, but not whether a person was guilty of want of ordinary care or of negligence in doing of such things. Coal Co. V. Jones, 20 C. D. 5RS, 11 C. C. (X.S.) 203. 205. Cf. Orlinkowski v. Glouik, 22 C. C. (X.S.) 206. Pen Co. V. Juengling, 2 0. App. 20, 21 C. C. (X.S.) 503, 25 C. D. 308. (b) "Where it is practicable to place plainly before the jury the facts and circumstances surrounding a claimed de- fect in the roof of a coal mine, it is error to permit an expert to testify, that if the fire-boss had gone through the entry before the men went to Avork and used ordinary care in the 449 OPINION EVIDENCE § 363 inspection of the roof, he would have discovered the fact that the roof was dangerous and liable to fall. Coal Co. V. Jones, 11 C. C. (N.S.) 293, 20 C. D. 5SS. Cf. Railway v. Morcland, 12 C. D. 612. (c) In an action to recover damages for a personal in- jury claimed to have resulted from the negligence of the de- fendant railway, it is proper to exclude the opinion of a non- expert witness that there was an opportunity to check the car ; and his opinion that the plaintiff might have been saved from injury should be excluded, as that is a question for the jury. Foy V. Railway, 6 C. D. 30fi. 10 C. C. 151. (d) Since a witness can not give his opinion as to the cause of an accident, as that ])laintiff, in his opinion, stepped from the car Avhile it was in motion, a Avritten memorandum made by such witness in which he states his opinion as to the cause of the accident in words to that effect should be ex- cluded. Traction Co. v. Hackett. 0. A pp. 97, 2S 0. C. A. 5fiG. 30 C. B. 208. (e) It is proper to exclude the opinion of an expert wit- ness as to whether certain cog-wheels were exposed, where the jury had viewed the premises and had before them the evidence with reference to said gearing. The question was one for the jury. Laidlaw Co. v. Miller, 12 C. C. (X.S.) 246, 21 C T). r..-0. (f) It is improper to i)ermit an expert witness to give his opinion as to whether it was safe to operate an ordinary foot-brake which had been worn smooth through use, so that the foot was apt to slip off, there being nothing complicated about the brake, and the question being the ultimate fact for the jury to find from all the evidence in the case. Kile Mfg. Co. V. Peterson, 16 C. C. (X.S.) 3:J0. (g) A witness having stated the facts and situation as to a method of loading and unloading ears, can not state whether it was a convenient (tr inconvenient iiifthod, oi- how §363 METZLER'S OHIO TRIAL EVIDENCE 450 inconvenient, when this was the question for the jury to determine. Brandon v. Railway, 8 C. D. 642, 17 C. C. 705. (h) In an action for injury from an excavation in a road or street, opinions that the place was dangerous are incom- petent. But if on cross-examination the witness testifies that the condition, as defendant claimed it to be, was not danger- ous, it is not error on re-examination to get his opinion that, as claimed by plaintiff, it was dangerous. Turnpike Co. v. Coover, 26 0. S. 520. Railroad v. Nolthenius, 40 0. S. 376. CHAPTER XXV. PRIVATE WRITINGS. 364. Primary evidence. ."ifif). Rule as to collateral matters. S(>G. Secondary evidence — General rule. .'{fi7. Writinjis beyond jurisdiction. 368. Abstracts of books. 30!). Lost or destroyed writings. 370. Question of loss for the court. 371. Notice to produce. ?72. Notice must be reasonable. 373 Notice not always nccessarj'. 374. Order to produce. 375. Inspection and copy. 37f). When master to inspect. 377. Copj' of instrument. 378. Proof of execution — When necessary. 379. Witnesses to prove e.xecution. 380. Exceptions— Ancient documents, etc. 3S1. Introduction of writings. 382. Form— Statute of frauds. 383. Construction of writings. 364. PRIMARY EVIDENCE. (a) It is a rule that a party offering to prove any matter which is in writing is bound to produce the writing when it is the best evidence of the matter sought to be proved. The Avriting would be primary evidence, and all inferior evidence would be secondary. The purpose of the rule is to prevent the introduction of evidence when the court is satisfied that better evidence is in the possession or uiuler the control of the party, and he has not given a sufficient excuse for his failure to produce it. Sasser v. State. 13 Oh. 453, 484. Jolinson v. Steadnian, 3 Oh. !)4, O?. (b) Where a person has admitted that he Avas the autluu- of a libel ill a certain newspaper, any other newspaper of the same impression may be read to tlie jury, and it is .lot 451 § 365 METZLER'S OHIO TRIAL EVIDENCE 452 secondary evidence. Any newspaper of an edition is pri- mary evidence of the contents of any other paper printed in that edition. And a telegram as given to the receiver may be properly admitted in evidence; it is not necessary to secure the original written by the sender. IMcLauglilin v. Russell, 17 Oli. 475. riillnmn Co. *v. Willctt, 17 C. D. 049, 7 C. C. (N.S.) 173, 175. (c) In section 6399 of the General Code it is provided that a trust may be shown to exist without proving or pro- ducing an article of agreement, and that the character of the trust may be established by proof of its general reputation as such. The provision admitting general reputation as proof of the character of the trust was held to be unconstitutional and void. Hnmmond v. State, 7S O. S. 15. Hughes V. State, 9 C. C. (N.S.) 369, 19 C. D. 237. 365. RULE AS TO COLLATERAL MATTERS. (a) But where the fact to be proved is collateral to the writing, oral evidence may be admitted. The existence of a writing, but not its contents, may be proved by parol. And where a question in regard to a contract does not call for its terms, but for what was done under it, the evidence should be admitted. Fogarty v. State, 0. D. 477, 6 N. P. 248. Keifelci V. State, 3 C. C. (N.S.) 551, 13 C. D. 246. Akron v. Temple, 16 C. C. (N.S.) 327. (b) A witness may testify that he sold shares of stock and delivered the certificates without producing the certifi- cates for inspection. The existence and transfer of a writing may be proved without jDroducing it. Railway v. Rawson, 16 Bull. 423. 9 O. "\ Tl. 709. Emrie v. Gilbert, Wright, 764, 765. (c) The contents of a writing that could have been pro- duced can not be proved while cross-examining the witness of the adverse party. But where there is no dispute about the contents, a strict cross-examination of a witness as to a 453 PRIVATE WRITINGS § 366 M'riting is not to be narrowed because it calls for the con- tents. State V. Lent, Tappan, 105. Boyle V. State, 6 C. C. 1G3, 3 C. i). 397. (d) A corporation organized not for profit may show by its charter, constitution and by-laws, or by oral evidence not inconsistent therewith, that it is organized solely for the pur- pose of administering a public charity, the foundation of which is derived from private donations. O'Brien v. Hospital Association, 96 0. S. 1. (e) Though the record is the best evidence of a matter of record, such as the fact that a person is an officer of a bank, yet the admission of the fact by the defendant is com- petent evidence against him. State V. Buchanan, Wright, 233. 366. SECONDARY EVIDENCE— GENERAL RULE. (a) Secondary evidence of the contents of a Meriting is not admissible until its absence is accounted for. Where the defense to an action on a policy of insurance is the non-pay- ment of an assessment, the defendant can not prove the assessment orally until after the foundation is laid for sec- ondary evidence. Clark V. Longworth, Wright, 189. Insurance Co. v. Bowersox, C. C. 1, 3 C. D. 321. (b) Parol evidence of the contents of a notice of sale is not admissible unless it appears that the notice is not avail- able. And it is not com])etent to offer parol evidence that a sale of licpior was made on a certain prescription. The writ- ten prescription must be produced if within the power of the party. Andrews v. Watson, 12 C. D. 686. McBean v. Sears, 8 N. P. ISf). 11 O. D. 2^9. Ilubbell V. Ebrite, 7 N. P. 220, 8 0. D. IIG. (c) "When a written proposition is made by one jiarty whicli is accepted by the other party in pai-ol after an oral modification of some of its terms, such written i)roposi1i()n i; § 367 METZLER'S OHIO TRIAL EVIDENCE 454 the best evidence of so much of the resulting contract as it contains; and the entire contract can not be proved by oral evidence. Railroad v. Morey, 47 O. S. 207. (d) In a prosecution for forgery, the defendant is entitled to have the alleged forged instrument produced, or its non- production satisfactorily accounted for, before secondary evi- dence of its contents is admissible. Cochran v. State, 25 C. C. (N.S.) 430. Hart V. State, 20 Oh. 49, 52. See Koons v. State, 36 0. S. 195. (e) But a party may prove the instructions to an agent of a corporation by parol evidence, in the absence of proof that they were in v^^riting ; and it is error to exclude the evidence on the assumption that the instructions v^^ere written. Akron v. McComh, 18 Oh. 229. Bank v. Bank, 6 C. D. 452, 10 C. C. 233, 237. Cf. Straus v. Payne, 1 W. L. J. 410, 1 O. D. R. 61. 367. WRITINGS BEYOND JURISDICTION. (a) It is the general rule that secondary evidence is ad- missible when the original is beyond the jurisdiction of the court. But this rule does not apply in an action on a bond or note where the answer puts in issue its execution ; and it is in such case error to admit a copy in evidence. The origi- nal must be produced. Fosdick V. Van Horn 40 0. S. 459. Reed v. State, 15 Oh. 217. Shillito V. Bobbins, 7 Bull. 74. 8 O. IX R. 313. Burridge v. Bank, Wright, 688. (b) Secondary evidence is admissible to prove that books of account do not contain certain entries, when the books are beyond the jurisdiction of the court. And when it is neces- sary to prove the results of an examination of many books of account, and the examination can not be conveniently r/ade in court, the results may be proved by persons who made the examination. Fosdick V. Van Horn, 40 0. S. 459, 467. Cf. Bank v. Wallace, Iddings, 13. 455 PRIVATE WRITINGS § 369 368. ABSTRACTS OF BOOKS. (a) "Where books and documents are multifarious and voluminous, abstracts and schedules which have been pre- pared therefrom by an expert accountant may be admitted in evidence ; but in such case the books and documents must either be first offered in evidence or be in the custody of the court so that the party against whom such abstracts and schedules are offered may have an opportunity from their examination to verify their correctness. Ford V. State, 11 C. C. (X.S.) 324, 20 C. D. 592. 369. LOST OR DESTROYED WRITINGS. (a) When the original of a Avriting is lost and proper search has been made for it, secondary evidence is admissible. The same rule applies to a destroyed instrument ; and the mutilated parts of a paper in evidence may be proved in the same manner. Fallis V. Griffitli. Wrijjht 303. See Duckwall v. Weaver, 2 Oh. 13. (b) Proof of the loss of a permit obtained from the mayor for moving a building upon or across a street is competent, both for the purpose of showing the contents of the permit, and that the oAvner was not trespassing in the use Avhich he was making of the street. Traction Co. v. Sterling, C. C. (X.S.) 200. 10 C. D. 227. (c) The contents of a lost or destroyed will may be proved by competent parol testimony ; and the scrivener who wrote the will is a competent witness. But the evidence must be clear and convincing; and the testimony of one wlio speaks from memory thirty years after having having seen the will is not sufficient. Crary v. McCrory, N. P. (X.S.) 1, 20 O. D. 110. Brewing Co. v. Hardway, 2 0. App. 171, 17 C. C. (X.S.) 475, 26 C. D. 443, Cf. Fricdiiour v. Friednour, 8 N. P. 509, 9 O. D. 406. (d) On the probate of a lost or destroyed ■•vill, the evi- dence of its execution and its contents must be clear, strong, positive, free from bias, ;iiid convincing beyoiul a ivasoiuible J§ 369 METZLER'S OHIO TRIAL EVIDENCE 456 doubt. A copy of tho will made by the attorney of the tes- tator has been admitted for the purpose of proving the eon- tents. Cole V. McClure, 88 O. S. 1. In re Lasance, 7 O. D. 24(i, 5 X. P. 20. (e) Where parol evidence is relied on to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the sup- posed deed and so much of its contents as will enable the court to determine the character of the instrument. Cillmoro v. Fitzfrorald. 2fi O. S. 171. Smith V. KviW 5 (). 1). 44<», 5 N. P. 4!tr). Slipnian v. Telschow, 4 C. C. (N.IS.) G:!."), 14 ('. 1). 530. (f) But proof of a sale on execution and an order for a deed will lay the foundation for evidence that a deed was made ; and less proof will then be necessary than in the case of a lost private deed, and the due execution of the lost deed will be presumed. Armstrong v. McCoy, 8 Oli. 128. (g) When an old, unrecorded deed is lost and the sub- scribing witnesses are dead, the usual rules of authenticating deeds must be dispensed with ; and evidence of such collateral facts as will furnish a fair presumption of the execution and contents of the lost deed must be admitted. Allen V. Parish, 3 Oli. 107, 124. Blackburn v. Blackburn, 8 Oli. SI, 83. (h) Copies of deeds made by disinterested persons of good character, and under circumstances that create no im- putation of fraud, may be admitted. When there is evidence that a deed was made, a copy made in a ])0()k by the notary, now dead, and which is corroborated by a strong chain of circumstances, is admissible as secondary evidence of the lost deed. Allen V. Parish, 3 Oh. 107, 126. See Kilbourn v. Fury, 20 U. S. 153, 101. (i) Tf the proposition is to prove a parol grant of real property, it would be within the statute of frauds; but where 457 PRIVATE WRITINGS §371 it is proposed to prove that a grant was made in writing, and in conformity with the law regulating the conveyance of real estate, it is otherwise ; and secondary evidence will be re- ceived. When i^arol evidence is admitted for the purpose, it is to prove a conveyance in writing, and not a parol convey- ance. Blackburn v. Blackburn, S Oh. 81, S3. (j) If defendant's title is by a deed twenty-six years old, which is claimed to have been made under a lost and un- recorded power of attorney, the existence of such power may be proved by inferences and admissions, if this is the best evidence to be had. If it shows clearly the existence and the execution, the contents need not be shown with certainty. Diehl V. Stine. 1 C. C. 515, 1 C. D. 287. Cf. Brockway v. Warren, 24 O. D. 311, 11 X. P. (X.S.) 228, 232. 370. QUESTION OF LOSS FOR THE COURT. (a) The fact of loss is to be proved to the reasonable satisfaction of the court ; and this may, but need not always, require the affidavit of every person who had access to the paper. The ruling in each case must depend on the circum- stances; no general rule on the subject can be laid down. Wells V. :\rartiii, 1 0. S. 386. (b) In ejectment the facts of existence and loss of a deed are preliminary and addressed to the court ; the case is then submitted to the jury ui)on the contents, execution, acknowl- edgment, and delivery. The evidence must be such as pro- duces conviction. BlackhTirn v. Blackburn, 8 Oh. 81. See Allen v. Parish, 3 Oh, 107, 108. 371. NOTICE TO PRODUCE. (a) Secondary evidence will be admitted when the origi- nal is in the possession of the adverse ])arty, and he fails to produce the same after notice. Upon failure of a party after '§372 METZLER'S OHIO TRIAL EVIDENCE 458 notice to produce the original copy of a Avriting, the dupli- cate copy will be admitted. Baldwin v. State, 6 Oh. 15. John V. John, Wright, 584. The Jane Louisa v. Williams, 5 'W. L. J. 8, 1 O. D. R. 228. 8ee also Section 115r>2, General Code. (b) An impression copy of a statement, the original of which was sent to the opposite party in the case, is not com- petent as evidence when no notice has been served upon such other party to produce the original; and the fact that the original was in the hands of a third person will not excuse a failure to serve such notice. Fulardenu v. Smith. 13 C. C. (^LS.) 2f>8, 21 C. D. 649. (c) In an action upon a policy of insurance, where notice was served ujion the underwriters to ju'oduce the original proofs of loss at the trial and they failed to do so. secondary evidence of the contents thereof was held to be competent. Gilclirist V. Transportation Co., 21 C. C. 10. 11 C. D. .-^-lO. (d) Tn an early case, it was held that notice was not necessary in criminal cases: and if the accused would with- hold a ]iaper from the i:)rosecutor and compel him to give parol evidence of its contents, the evidence stands in place of tlie writing, and the accused should iiot afterwards be allowed to make use of the writing in his defense. State V. Walla^'an. Tappan. PO. Kooiis V. State. HU O. S. !!).'>. Cf. Devere v. State, 3 C. D. 249, 5 C. C. 509, 372. NOTICE MUST BE REASONABLE. (a) A notice to produce a paper should be served before the trial. A notice served during the trial is not reasonable when it is not shown that the party ever had the paper; and the admission of a copy in such a case is error. Choteau v. Raitt, 20 Oh. 132. (b) A party claiming that the notice did not give suf- ficient time to produce the writing, will not be granted a new trial because of oral evidence of its contents, unless he shows 459 PRIVATE WRITINGS §374 prejudice; and this may be done by producing the writing on motion for a new trial. Dougherty v. Schlotman, 1 C. S. C. R. 299, 13 0. D. R. 557. 373. NOTICE NOT ALWAYS NECESSARY. (a) There are three well-established exceptions to this rule, and in which notice to produce is not necessary: (1) where the instrument to be produced and that to be proved are duplicate originals; (2) where the instrument to be proved is itself a notice, such as notice to quit, or notice of the dis- honor of a bill of exchange; (3) where from the nature of the action the defendant has notice that the plaintiff intends to charge him Avith possession of the instrument. Railway v. Cronin, 38 C. S. 122, 125. Heller V. BeaK 3 C. C. (N.S.) 268, 13 C. D. 540, 545. (b) The written notice to vacate premises required before beginning an action in forcible entrj^ and detainer may be proved by parol without giving notice to produce ; and where demand for it is made in open court, the failure of defendant to produce it would he some evidence that the notice, if pro- duced, would be against his contention. Heller v. Beal, 3 C. C. (X.S.) 268, 13 CD. 540. (c) In an action under the mechanic's lien law by a material man against the owner, where the plaintiff's case is founded on the notice he served upon the owner, a formal notice to produce is unnecessary, and secondary evidence is admissible. Railway v. Cronin, 38 0. S. 122. 374. ORDER TO PRODUCE. (a) The production of private writings is provided for by statute. "When in possession of a third party, produ tion is secured by a subpoena duces tecum. Tlie statute provides that the subpoena may direct the person it names to bring with him any book, writing, or- other thing under his control, which he may be compelled to produce as evidence. Spo Sec. 11503, General Code. In re Rauh, 65 0. S. 128. §374 METZLER'S OHIO TRIAL EVIDENCE 460 (b) Upon motion, and reasonable notice thereof, the court, in which an action is pending, may order the parties to produce books and writings in their possession or power which contain evidence pertinent to the issue, in cases and under circumstances where tliey might heretofore have been comi)elled to produce them by the ordinary rules of chancery. If the plaintiff fails to comply with such order on motion, the court may give judgment for the defendant as in case of non-suit; if a defendant fails to comply with such order, on motion the court may give judgment against him by default. Section 11551, General Code. (c) The rule in chancery is that a party is entitled to a discovery of such facts or documents in his adversary's pos- session or under his control as are material and necessary to make out liis own case; but not to a discovery of the manner in which the adverse party's case is to be established, nor to evidence which relates exclusively to the adverse party's case. This rule applies also to section 11503 of the General Code, which provides for the subpoena duces tecum. Ex parte Schoepf, 74 O. S. 1. (d) Reports of an accident were made by a conductor and motorman for the use of the claim agent and the attor- ney of the railway company in case of suit against it, and remained in the custody of either the claim agent or the attorney. It was held that production of the reports could not be enforced. Ex parte Schoepf, 74 O. S. 1. Cf. State V. Rhoads, 81 0. S. 397. (e) Where plaintiff moves the court to compel the de- fendant to produce at the trial a writing claimed to be under his control as to which the pleadings contain no admission, and the defendant denies its existence and his control of it, it is error to decide for the plaintiff on the affidavits and render judgment as by default ; the motion should be over- ruled, leaving the plaintiff to proceed under the rules in respect to proof of the contents of lost writings by second- ary evidence. Baggott V. Goodwin, 17 0. S. 76. 461 PRIVATE WRITINGS § 375 (f) This section does not authorize a court to order the adverse party to deliver documents to a notary taking the deposition of such adverse party, Lut refers to their produc- tion at the trial either before the court or a master or referee. Kelly V. Ingorsoll, 1 C. L. R. 210, 4 0. D. E. 284. (g) The production of books and papers can not be com- pelled, Avhere it is manifest to the court that if they would tend in any way to be useful in the prosecution of the case in hand, they must tend to subject the party to whom they belong to penalties and punishment. Illuminating Co. v. Ilitcliens, 3 X. P. (X.S.) 57, 15 O. D. 522. Cf. Devere v. State, 3 C. D. 249, 5 C. C. 509. 375. INSPECTION AND COPY. (a) Either party, or his attorney, in writing, may demand of the adverse party an inspection and cop}^ or permission to take a copy, of a book, paper or document in his posses- sion, or under his control, containing evidence relating to the merits of the action or defense, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it. If compliance with the demand with- in four days be refused, on motion and notice to the adverse party, the court or judge may order the adverse party to give the other, within the time specified, an inspection and copy, or permission to take a copy, of such 'book, paper or docu- ment. On failure to comply with such order, the court may exclude the paper or document if offered in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as such party, by affidavit, alleges it to be. This section shall not prevent a party from compelling another to produce any book, paper or document when he is examined as a witness. Section 11552, General Code. (b) Under this section, when the demand for inspection is general in its nature, the court has power to modify or make such an order as will serve the purpose for whif'h th^* evidence is sought. And such order may he made even thou<'-'» plaintiff is a member of a rival firm, but will !;(> s!) fi-am(^d § 375 METZLER'S OHIO TRIAL EVIDENCE 462 as to confine snch examination to matters relevant to the issue. The demand is not limited to cases triable to a jury; and the fact that production may be compelled by subpoena duces tecum is not a defense. Arbuckle v. Spice Co., 11 C. D. 743, 21 C. C. 347. (c) In making- an order for inspection of the books, pa- pers and documents of a corporation, it is not proper to require that they be removed to a place distant from the place where they are ordinarily and properly kept. And there should be a finding by the court that said books and documents contain evidence pertinent to the issue. Richards v. Bunte, 15 C. C. (N.S.) 401, 23 C. D. 37. (d) A court has the right independent of statute to pun- ish a party for disobedience of an order directing him to allow the adverse party an inspection of certain books and documents. And the adverse party may object to the ad- mission of written evidence on the ground that a request for inspection had not been complied wuth; but this objection may be waived. Arbuckle v. Spice Co., 11 CD. 726, 21 C. C. 3.17. Halstead v. Insurance Co., 14 N. P. (N.S.) 113, 24 O. D. 296. (e) Where an order of court has been made granting a right to inspect books and papers, and a dispute arises as to the right to inspect any particular book or paper, that matter should be brought before the court granting the order by the party objecting to the inspection. Arbuckle v. Spice Co., 11 CD. 726, 21 C. C 357. (f) Where part of the records of a corporation is offered in evidence, the rest being sealed up, a cross-examination as to the sealed part is properly refused when opposing counsel state they have no relevancy. To entitle to cross-examine on such part, the proper demand should be made under sections 11552-3 of the General Code. Railway v. Railway, 5 C D. 643, 12 C C 367. is) ^ person charged with a crime is not entitled to in- spect a copy of a written interview with one who later was a witness before the grand jury, nor entitled to inspect the 463 PRIVATE WRITINGS § 876 minutes of the evidence taken before the grand jury ; and it is error for the court to oi'der the prosecutor to deliver either of such copies to the defendant or his counsel for inspection. State V. Rhoads, 81 0. S. ^i'T. (h) In a suit by oi ^ jjartnor against another to set aside a fraudulent sale, it was held on a motion by the plaintiff for the inspection of the books that the evidence to support the motion need not amount to proof of the plaintiff's case; and tliat a showing of a probable want of correctness in the statements of defendant would be sufficient to sustain the motion. Kixon V. Chatfield, 2 C. S. C. E. 76, 13 0. D. R. 778. (i) Where defendant pleads a release given by plaintiff's intestate in his lifetime, plaintiff may by motion require the defendant to permit an inspection thereof. Such release can not be said to be a confidential communication nor relate exclusively to defendant's case. Ward V. Steel Co., 17 N. P. (N.S.) 331, 26 0. D. 569. (j) The fact that a demand was made to produce certain books and papers containing evidence relating to the merits of the action and defense, does not estop the party demand- ing production from objecting to their introduction. The object of the production of books and papers is that the party demanding them may have an opportunity of inspecting them. Barger v. Railway, 30 C. D. 61, 28 0. C. A. 92, 96. 376. WHEN MASTER TO INSPECT. (a) If the party in possession of any such book, paper, writing or document alleges that it or a part thereof is of mere private interest, or of such character that it ought not to be produced, or an inspection or copy allowed or taken, on motion of either party, the court may direct a private examination of it by a master. If he finds that such book, paper, writing or document contains matter pertinent to tlie case, and proper to be produced, inspected or copied, he shall report it to the court, or a copy of such part as he finds nertinent to the case and proper to bo j^-oduced, insi)oeted § 378 METZLER'S OHIO TRIAL EVIDENCE 464 or copied. The book, paper, writing or document, or part thereof, so reported, shall be admitted in evidence on the trial, unless for proper cause the court excludes it. Section IIS.IS, General Code. C77. COPY OF INSTRUMENT. (d) Either party, or his attorne.y, if required, shall de- liver to the other party, or his attorney, a copy of any in- strument of Avriting whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant refuses to furnish the copy required, the party so refusing shall not be permitted to give the origi- nal in evidence at the trial. This section does not apply to a paper, a copy of which, as required by law, is filed with a pleading. Section 11554, General Code. (b) An instrument which is an evidence of indebtedness and should be filed with the petition, is not an instrument a copy of Avhich may be demanded under this section. And if the original is accepted without demand for a copy and is held for several Aveeks, the object of the statute is satisfied, and a copy can not be thereafter demanded. The question of waiver is one for the court. Jlarks V. Fordyce, 2 A. L. R. 302, 5 0. D. R. 81. Cf. Gibson V. Tarina Co., 2 Dis. 499, 13 0. D. R. 306. 378. PROOF CF EXECUTION— WHEN NECESSARY. (a) In general, all private writings produced in evidence must be proved to be geiuiine. A j^aiier writing is not ad- missible in evidence Avhere its execution is denied, and no evidence is offered tending to shov/ that it was ever in fact signed. P.imTier v. Ison, 8 C. C. (X.S.) SCO, IS C. D. 450. Fchaupp V. Jones, 8 X. V. 151, 10 O. !>. 507. (b) A deed purporting to have been executed by the president of a corporation, if objected to. can not be given in evidence without proof of its execution. The signature 465 PRIVATE WRITINGS § 379 of the president of the corporation to such a deed does not prove itself, nor is it proven by the seal of the corporation. \Yalsh V. Barton, 24 O. S. 28, 41. Cf. Hughes V. Lehan, 1 C. C . !), 1 C. D. 5. (c) At any time before the trial, either party may exhibit to the other, or to his attorney, any paper or document ma- terial to the action, and request an admission in writing of its genuineness. If the adverse party, or his attorney, fails to give such admission, -within four days after the request, and the party exhibiting the paper or document be afterward put to expense to prove its genuineness, if that be finally proved or admitted on the trial, such expense, to be ascer- tained at the trial, shall be paid by the party refusing to make the admission, unless it appears to the satisfaction of the court that there were good reasons for the refusal. Section 11550, General Code. 379. WITNESSES TO PROVE EXECUTION. (a) The execution of a deed or other written instrument, other than a will, may be proved b}' either one or more of the subscribing witnesses, the officer before w^hom the instru- ment was acknowledged, or the party who signed and ex- ecuted the same. Garrett v. Ilanshue, 53 O. S. 482. (b) "When other and better evidence can not be obtained, it is then permissible to resort to the proof of a person's handwriting. So where the attesting witness is dead or be- yond the reach of the process of the court, his handwriting may be proved. And absence of such witness may be shown by testimony ; it is not necessary that a subpoena be issued. So w'here the assignment of a judgment is attested by a wit- ness who is a non-resident, it is not necessary to take the deposition of the subscribing witness, as other evidence is ad- missible. Clark V. Boyd, 2 Oh. 56. Biclianls v. Skiff, 8 0. S. 586. Ilutchirib V. Wick, 1 C. L. R. 89, 4 O. D. R. ITO. (c) "Wlien the subscribing witness is dead or uusent, the courts have usuallv admitted proof of the handwriting of the § 379 METZLER'S OHIO TRIAL EVIDENCE 466 obligor ; but it does not follow that this proof must be re- quired in addition to proof of the liandwriting of the witness, nor is the exclusion of proof of the handwriting of the wit- ness a necessary consequence of admitting the one where tlie other can not be obtained. Under proper circumstances, both modes of proof may be admissible, and either may be suf- ficient. Clark V. Boyd, 2 Oh. 56, 60. Graham v. IBurggraf, 10 C. C. (N.S.) 594, 12 C. D. 747. (d) Where a contract signed by a person since deceased is attested by a witness, such witness must be called or his absence accounted for, before the testimony of other wit- nesses can be received to prove that the maker's signature is genuine or was admitted by him to be genuine. The testi- mony of the subscribing witness is better evidence than the signer's admission or testimony as to his handwriting. Warner v. Tvailroad, 31 0. S. 2G5. Garrett v. Hanshue, 53 0. S. 482, 402. (e) If a subscribing witness denies his signature, other witnesses may be called to prove the signature of the witness. And this is not impeaching the credit of one's own witness. And where the handwriting of a deceased subscribing wit- ness has been proved, his declarations as to the incompetency of the signer are not competent to impeach the execution, though impeachment of the character of the witness may be permitted. Duckwall V. Weaver, 2 Oh. 13, 14. Cf. Thompson v. Thompson, 2 W. L. M. 84, 2 0. D. R. 214. Runyon v. Price, 13 0. S. 1. 8. (f) If execution of the instrument is not directly in issue, but comes incidentally in question, its execution may be proved by any competent evidence without calling the sub- scribing witnesses. Such witnesses need not be called when the action is not on the instrument, but it is offered to prove a debt for money had and received. Greenleaf on Evidence, Sees. 573, 576. Burnham v. Aver, 3 0. D. R. 327. is) ^ person w^hose name is forged- may testify to the forgery on the prosecution therefor without calling the sub- 467 PRIVATE WRITINGS §380 scribing witness; for subscribing witnesses are called first only because mutually agreed upon, and the reason does not exist here. Simmons v. State, 7 0. (pt. 1) 116. (h) If there is no subscribing witness, execution may be proved by the testimony of the signer of the instrument or of a person who saw the writing executed. If neither can be secured as a witness, then evidence of the handwriting of the signer is admissible as secondary evidence. Garrett v. Hansliue, 53 0. S. 482. Vairin v. Insurance Co., 10 Oh. 223, 224. 380. EXCEPTIONS— ANCIENT DOCUMENTS, ETC. (a) An ancient writing may be admitted in evidence with- out direct proof of execution when it appears and })urports to be of the age of at least thirty years, and is shown to have come from the proper custody ; that is, the place where papers of its kind are usually deposited. This exception rests upon a conceded necessity and applies not only to instruments of a formal character, such as wills, bonds and other deeds, but also to receipts, letters, entries, and all other ancient Avritings. Banner v. Ison, 18 C. D. 450, 8 C. C. (N.S.) 260, 263. Bell V. Brewster, 44 0. S. 600, 604. Wright V. Hull, 83 0. S. 385, 306. Barr v. Chapman, 30 Bull. 264, 11 0. D. II 862. (b) A paper which is offered as evidence of indebtednesc, and the execution of which is put in issue by the answer of the defendant, is not admissible as an ancient document prov- ing itself, but must be accompanied by evidence that it came from the proper custody and evidence of its antiquity, al- though it may purport to be more than thirty years old. Wright V. Hull, 83 0. S. 385. Bunner v. Ison, 8 C. C. (N.S.) 260, 18 C. D. 450. (c) A letter purporting to have been written over thirty years ago is an ancient document, and where produced from the family papers of the addressee, it is presumed to liave been written by the j)urported writer, and if both are dead, is admissible without further authentication. Boll V. Brewster. 44 0. S. 600. Riordan v. Deiicliy, X. P. (N.S.) IcC. ; ) :>. '^. -260. §381 METZLER'S OHIO TRIAL EVIDENCE 468 (d) And the same rule applies to what purports to be the signature of a soldier to a receipt for his wages on a pay- roll of a military company in the war of 1812, which is pro- duced from the archives of the war department of the na- tional government. Bell V. Brewster, 44 0. S. 090. (e) Proof of execution is not required where by statute a certified copy is made prima facie evidence of it, and such a copy is offered in evidence. If a certified copy of the record of a deed or of an official bond is produced and offered, it will be prima facie evidence of the execution of the instru- ment. The cases do not seem to agree as to the effect of ad- mitting the record itself. Walsh V. Barton, 24 0. S. 28, 41. Kewbergor v. Finney, 9 C. D. 720, 17 C. C. 215. See Shehan v. Davis, 17 O. S. 571, 580. (f) If the instrument is produced by the adverse party who claims an interest under it, its genuineness need not be proved ; for by claiming an interest under it, he admits its due execution. , Swan's Treatise, p. 140. Greenleaf on Evidence, Sec. 571. 381. INTRODUCTION OF WRITINGS. (a) When an instrument in writing is produced by a party at the trial as evidence, and witnesses are examined in relation to it without objection to its admissibility from the other side, it is not error for the court to regard it as evi- dence, although not formally offered and read by the party producing it. But statements by counsel without objection, as to facts contained in a document not offered in evidence, is not the proper way to introduce evidence. Bevington v. State, 2 0. S. 160. State, ex rel. v. Speigel, 22 C. C. (KS.) 337, 344. Traction Co. v. Kettler, 11 C. C. (N.S.) 516, 21 C. D. 170. (b) A former judgment that is referred to in the evi- dence may be considered as in evidence, though not formally offered, when counsel on both sides make admissions as to the facts shown by such judgment. Zieverink v. Kemper, 50 0. S. 208. 469 PRIVATE WRITINGS §381 (c) The relevant portions of a record are competent evi- dence "without offering the whole record. And where a wit- ness testifies that he read only part of a letter to one inter- ested in the subject-matter, another part not read does not become evidence. Railway v. Railway, 3 C. D. 403, C. C. 362. Corbett v. State, 5 C. C. 155, 3 C. D. 79. (d) Statements in an affidavit introduced as evidence of a fact does not make the affidavit competent to prove another fact, to prove which it is incompetent as evidence. And when an ai¥idavit is introduced by the plaintiff as an admission of agency, it can not be used by defendant as evidence of other statements made in the affidavit. Assurance Co. v. Early, 23 C. C. (X.S.) 418. Herig v. Harvey, 23 C. C. (N.S.) 338. (e) The idmission of a document in evidence merely to prove a date is prejudicial error, if it tends to divert the jury from the real issue. And it is error to send to the jury a book of rules to be used by them in their deliberations, when only a few of the rules have been offered in evidence. Moravec v. Buckley, 11 Bull 225. n O. D R. 226. Railway v. Workman, 06 0. S. 509, 546. (f) But in an action on a bond, which refers in its recitals to a previous contract of sale as having been made on a par- ticular day. the contract, the execution of which is admitted, is competent, although it is dated a few days prior to the day stated in the bond. Serviss v. Ptockstill, 30 0. S. 418. (g") If, when part of public documents are offered in evi- dence, the adverse party insists that the ciitii-e documents shall be regarded as in evidence, and this is agreed to, it is not error to permit the whole to be read in evidence though portions may be irrelevant. Serviss v. Stoekstill, 30 0. S. 418. (h) And where part of a writing is proved by one party, tlie other party may introduce all other parts which explain, ()ualifv or rel)ut the statements proved by tlie part of the Avriting first introduced. Fnton V. T.onjiwortli. 10 O. S. 20. § 382 METZLER'S OHIO TRIAL EVIDENCE 170 382. FORM— STATUTE OF FRAUDS. (a) An agreement which is within the statute of frauds will not be enforced in this state, unless the agreement, or some memorandum or note thereof, is in writing and signed by the party to be charged or by some person authorized by him to sign it, even though the agreement was made in an- other state or country where it was competent to prove the same by parol evidence. TTeaton v. Eldridge, 50 0. S. 87 (b) The memorandum, wliich is merely the evidence of the contract, may be made and signed after the completion of the agreement; and even a letter from the party to be charged, reciting the terms of the agreement, is sufficient to satisfy the requirements of the statute. But it can not be said that the letter would constitute the agreement, for the agreement was complete when the minds of the parties met with respect to its terms. The letter would only furnish the necessary evidence to jn-ove the agreement. Heaton v. Eldridpe, 5G O. S. 87, 101. Ealston v McBurney, G App 303, 27 O. C, A. 310, 29 C. D. 158. (c) Several writings, though made at different times, may be construed together for the purpose of ascertaining the terms of a contract required by the statute of frauds to be in "writing and signed b}' the party to be charged therewith. If some only of such writings are so signed, reference must be specifically made therein to those which are not so signed; but if each of the writings is so signed, such reference to the others need not be made, if, by inspection and comparison, it appears that they severally relate to or form part of the same transaction. Thayer v. Luce, 22 0. S. 62. Coffinberry v Blakeslee, 22 C. C. (N.S ) 34, 2S C D. 462. (d) The memorandum in writing which is required by the statute of frauds is a memorandum of the agreement between the parties ; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clear- ness and certainty that they may be understood from the 471 PRIVATE WRITINGS § 382 memorandum itself or some other writing to which it refers, without the necessity of resorting to parol evidence. Klin-: v. Bordncr, 65 O. S. 86. Laudt V. Parchman, 7 O. App. 164, 29 O. C. A. 63. (e) An instrument of writing in the usual form of a deed of conveyance, but not delivered as such, may nevertheless be delivered as an executory contract or as partial evidence of a contract to sell and convey the lands therein described; and if signed and so delivered by the vendor, and accepted by the vendee, it is sufificient, in an action thereon against the vendor, to take the case out of the operation of the statute of frauds. And assent of the vendee to the terms of the contract and the authority of his agent may be shown by parol evi- dence. Thayer v. Luce, 22 O. S. 62. (f) And a will devising real estate, executed and delivered to the devisee in pursuance of a parol agreement by which the testator for a valuable consideration agreed to devise that real estate to the devisee, can not be revoked by a subsequent will so as to escape the obligation, but may be enforced as a contract. Palston V. AIcBurney, G O. App. 303, 27 O. C. A. 310, 20 C. D. loS. (g) And a receipt for a sum of money, which recites that it is to apply upon the purchase price of property at a certain number on a named street, is sufficient to take the contract out of the operation of the statute of frauds. Peck V. Osborn. 16 C C. (NS ) 592, 27 C. D. 626. Cf. Boest V, Doran, 2 C. L R 313, 4 O. D. R 525. (h) But a duplicate receipt for earnest money that has been paid, which has been signed by the intended purchaser and retained by the owner, and which expresses no contract for ])urchase except by implication, and fixes no terms what- ever in regard to a sale beyond the mere naming of a price and identifying the property, and which was not intended by the parties to embody such terms or to operate as a contract, is not a sufficient contract, under the statute of frauds, to bind the purchaser. Laudt V. Parclimann, 7 O. App. 164, 20 O. C. A. 63. § 382 METZLER'S OHIO TRIAL EVIDENCE 472 (i) A written contract for the sale of real estate made and signed by an agent in his own name and without disclosing his agency or the name of his principal, satisfies the require- ments of the statute of frauds, and is binding on, and may be enforced by, the principal. Egle V. Morrison, 6 C. C. (N.S.) 609, 17 C. D. 497. (j) And where the name of an agent, with whom a eon- tract for the purchase of real estate was made, appears in the written memorandum of the agreement signed by the pur- chaser, who is the party to be charged, the statute of frauds is satisfied, although the names of the principals are not dis- closed tlierein. Walsh V. Barton, 24 O. S. 28. (k) The written authority of an agent to make a par- ticular contract with a third person therein named, which is signed by the principal, may be delivered to such third person by the agent. And if assented to by such third person, the contract is complete and complies with the statute of frauds. Furnace Co. v. 'Raihvay, 22 0. S. 451. Forbis v. Sliattlei, 2 C S. C. R. !)5, 13 0. D. R. 789. (1) A contract required by the statute of frauds to be in writing is sufficient if signed by one of the parties to be charged and accepted by the other. The bringing of a suit for specific performance by the party whose name has not been subscribed to the contract establishes its acceptance by him. Egle V. Morrison, 6 C. C. (N.S.) 609, 17 C. D. 497. (m) The statute of frauds requiring that some memoran- dum or note in writing of certain agreements be made, does not forbid the use of secondary evidence to prove the con- tents of such written agreement. It is true that an agreement within the statute could not be proved by shoAving an oral agreement; but when the ground is laid for secondary evi- dence, oral evidence may be introduced to show that there had existed an agreement in writing. Blackburn v. Blackburn, 8 Oh. 81, 83. 473 PRIVATE WRITINGS § 383 383. CONSTRUCTION OF WRITINGS. (a) It is the duty of the court to give construction to all written instruments; and it is the duty of the jury to take the construction from the court absolutely if there are no words to be construed, as words of art, or j)hrases used in commerce, and no surrounding circumstances to be ascer- tained, or conditionally, wlien those words or circumstances are necessarily referred to them. IMonnett v. Monnett. 40 O. S. 30, .-^T. Dock Co. V. McCafferty, 5 C. D. 262, 11 C. C. 457. Pollock V. Colicn, 32 (). S. 514. Bofrps V. Taylor, 2(1 (). S. (;()4. Dayton v. Hooghinfl, 3!) O. S. 671. (b) Interpretation of a written contract is for the court. And where an issue is made on the question whether certain items are provided for in a written contract, it is error for the court to instruct the jury to determine that fact from an inspection of the contract. In construing a verbal contract, the jury first decides upon its terms. Kt'ipcr V. 'Sclfo, 22 C. C. (N.R.) 507. Akron-Selle to. v. .lost, 16 C". ('. (N.S.) .333. Lcc V. Benedict, 23 C. C. (N.S.) 561. (c) If it appears upon the face of a mortgage that it is void, or the same is fairly to be inferred from its provisions, it is the duty of the court so to declare without submitting the matter to the jury as a question of fact. And when the notice to an indorser is in writing and undisputed, its suf- ficiency is a question of law to be determined by the court. Freeman v. Rawson, 5 0. S. 1. Townsend v. Bank, 2 0. S. 345. CHAPTER XXVI. ACCOUNT-BOOKS. 384. Common-law rule. 385. Statutory rule. 386. Original entries. 387. Subjects of bootc-afcojint. 388. Parol to vary accounts. 389 Book-accounts of others. 390. Accounts not in books. 391. Business entries. 384. COMMON-LAW RULE. (a) It is a general nile of evidence that a party will not be allowed to introduce in evidence written statements made by himself, as such statements are ordinarily self-serving; but a book account is an exception to this rule. However, some preliminary proof is necessary to make an account-book com- petent evidence. If a party brings an action on an account, his own testi- mony is the highest and best evidence that can be offered of the facts set forth in the petition, or the testimony of the wit- ness who had the transaction with the adverse party, or who performed the work, or who delivered the material, as the case may be. The fact that the transactions were recorded in a book is merely corroborative. If the transactions were re- corded at the time, and if the person who recorded them testifies that he recorded them, and that they were truthfully recorded, the book may be received in evidence, not independ- ently of the testimony of the witness, but in connection with his testimony. Bennett v. Shaw, 5 C. D. 480, 12 C. C. 574. 576. (b) The general common-law rule requires that the entries shall be contemporaneous with the facts to which they relate, and shall be made by parties having personal knowledge of the facts, and be corroborated by their testimony, if living 474 475 ACCOUNT-BOOKS § 385 and accessible, or by proof of their handwriting if dead, or insane, or beyond the reach of the process or commission of the court. Kennedy v. Dod^re, 10 C. D. SfiO, 10 C. C. 125, 433. Cf. Cram v. Sjjear, 8 Oh. 4!)4, 400. (c) The books of original entry are competent evidence for the plaintiff when the entries therein are verified by the evidence of the person Avho made them. And a i)arty will not be excused from making the proof necessary in his case, because he would have to do so by a witness who had been called by the adverse party, on the assumption that, if called to verify the account, the wntness would testify falsely. Bennett v. Shaw, 12 C. C. 574, 5 C. T>. 480. (d) A book account sued on, with the oath of plaintiff as to its correctness, may be attacked by asking plaintiff on cross-examination whether he had not made many mistakes in his accounts within the past tAvo years which he Avas com- pelled to rectify, and by evidence of his customers that he kept incorrect accounts, and that the reputation of his books among them was bad. Sheridan v. Tenner, 3 C. D. 10, 5 C. C. 19. 385. STATUTORY RULE. (a) The present statute provides that a party shall not testify where the adverse party is a guardian or trustee, executor or administrator, etc. ; but by the sixth paragraph of exceptions to this statute, a book account is made an excep- tion in words as follows: "If the claim or defense is founded on a book account, a party may testify that the book is his account-book, that it is a book of original entries, that the entries therein Avere made l)y himself, a person since deceased, or a disinterested person not a resident of the county. The book shall then be competent evidence, and may be admitted in evidence in any case, without regard to the parties, upon like proof by any competent witness." See Section 114ft.'), Ceneral Code. See Section 271 el seq. herein. § 385 METZLER'S OHIO TRIAL EVIDENCE 476 (b) Therefore, the statutory rule is that where a party sues on an account, his account-book is competent evidence against the debtor, or his. legal representative, Avhen it is testified by the party, or by any competent witness, that the book is the account-book of the party, tliat it is a book of original entries, that the entries therein were made by him- self, or by a person since deceased, or by a disinterested per- son not a resident of the county. Bennett v. Shaw, 5 C. "D. 4S0. 12 C. C. r,:4, 577. (c) In order to make an account-book competent evidence under this section of the statute, it must be shown not only that the book is one of original entries, but also that the entries Avere made concurrently with the transactions, that the items of the account are proper subjects of a book ac- count, and that the book fulfills all the requirements of an account-book at common law. Kennedy v. Dodge, 10 C. "D. Hfin, 10 C. C. 425. Bo-art V. Cox, 4 C. C. 28!), 2 C. T). ry'y]. Page V. Zehring, 6 Bull. 2!)n, S O. T>. 11. 211. (d) An entry of a large sum of money as a loan, such as $450.00 by a laborer to his employer, is not the proper sub- ject of a book account; and in an action against the employ- er's administrator by the lender, not on the item as an ac- count, but for money lent, he can not introduce such entry in evidence under the statute; and the lender is excluded as a witness by reason of the fact that the adverse party is an administrator. Page V. Zehring, 6 Bull. 200, 8 0. D. "R. 211. See Cram v. Spear, 8 Oh. 404. Hough V. Ilenk, 8 C. C. 354, 4 C. D. 00. (e) In an action against the administrator of the estate of a deceased person on an account for boarding the decedent, the plaintiff testified that a book then produced by him was his book of original entries; that the entries therein were made by himself, and at the time they purported to have been made. The account in the book showed entries of credit of cash and groceries entered during each year from the com- mencement of the account, under the heading of the months. 477 ACCOUNT-BOOKS § 386 Lilt not giving the date; and after the expiration of each j'ear, ■without any date, there Avere charges for boarding for the number of Aveeks in the preceding year, some for less than fifty-two Aveeks, and a balance "svas struck for such years, but this balance was not carried forward to the next year. It Avas held that such account-book was not competent evidence under the foregoing statute. Bojrart v. Cox, 4 C. C. 2S0, 2 C. [). ,nol. See lIcGowan v. Mock, 26 Bull. 265. 386. ORIGINAL ENTRIES. (a) The book of original entries must be produced. Where the testimony fails to show that an account-book offered in evidence is a book of original entries, it is not error to exclude the book. An impression book in which are copied bills for lumber drawn off from a yard-book is not competent evidence as a book of original entries and should be excluded, when identified only by the person keeping this book, but who took no part in keeping the yard-book. Cram v. Spear, 8 Oli. 494. Baxter v. Leitli, 28 0. S. 84. Falardean v. Smith Co., 13 C. C. (X.S.) 208, 21 C. D. 649. (b) A book account should be proved by the day-book, and not by the ledger into which the account has been tran- scribed from the day-book. It is usual, however, to require the production of tlie ledger even when the original entries are made in a day-book. Kennefly v. Dod^re^ 10 C. "D. 360, 10 C C. 425, 4.3.'5. Cram v. Si)ear, 8 Oh. 404. (c) The ledger is competent evidence of an account when the day-book has been destroyed or lost, and it is shown that the entries in the day-book were correctly transcribed to the ledger. There should be testimony by the person who made the entries in the day-book or by one having knowledge of the transactions and of the correctness of the original entries, Kennedy v. Dodpe, 10 C. D. .-^fiO. 10 C. C. 425. Burr V. Sliute, 2 C. C. (N.S.) 343, 14 C, ]). 62. (d) After proof by the plaintiff of the loss of his account- book of original entries, it was held not to be error to allow § 387 METZLER'S OHfO TRIAL EVIDENCE 478 a witness to testify that he had compared tlie bill of particu- lars with the entries in such account-book and that he found them to correspond, and then to permit the plaintiff to testify to the correctness of tlie charges in the account in the lost book. Smiley v. I")(>\voy, 17 <^>li. l')*!. (f. Mend v. :\Ic(;ra\v, 1!) O. S. 55. (e) The entries should be made concurrently with the transactions. Entries made but once a year for the whole year for services at so much a week for ten years is not ad- missible because not contemporaneous and not itemized ; but the error is cured by proof that the debtor often saw and assented to the entries. Bogart V. Cox, 4 C. C. 2S9, 2 C. D. 551. (f) Where a party proved by a third person that a book is his book of accounts, and there was no testimony as to Avho made the entries, but the witness testified that the plaintifi' and defendant had compared their books and found no differ- ence as far as was noticed by the witness, who was then engaged about his own duties posting other books, it is not error to exclude the book, as the circumstances were not suf- ficient to justify an inference that the correctness of the account had been admitted. Kiigler V. Wiseman, 20 Oh. 301. Cf. Hallock V. State, 11 Oli. AOQ. Beokwith v. Telephone Co., 17 C. C. (N.S.) 527. 387. SUBJECTS OF BOOK-ACCOUNT. (a) The law alloAvs a party to swear to his book accounts ; but this means only the usual and proper books of account. Money is not the proper subject of book account, especially sums of considerable amount; though small sums passing be- tween the parties in the course of business can be charged on account, and be proved in the same manner as the other items of account. Cram v. Spear, 8 Oh. 404. nongh V. Henk, 8 C. C. 354, 4 C. D. 60. Page V. Zehring, 6 Bull. 299, 8 O. D. R. 211. Horning v. Poyer, 18 C. C. 732, G C. D. 370. 479 ACCOUNT-BOOKS § 387 (b) Where a note has been given for a loan of money and payments have been made, these payments should appear upon the note. Such payments are not the proper subject-matter of a book account, and such account is not admissible in de- fense to an action upon the note. Kennedy v. Dodge, 10 C. D. 300, 10 C C. 425. (c) Where a petition on an account in tlie short form is filed, and it is alleged that the cash items therein were made the subject of such account with the assent or by the agree- ment of the debtor, it is not open to objection by demurrer or motion, on the ground that said cash items are not the proper subject of a book account. McKemy v. Goodall, 1 C. C. 23, 1 C. Tj 14. (d) The objection that cash items alone can not, without special authority, be the subject of a book account, is not well taken where the action is on a contract, and there is an aver- ment in the petition that the indebtedness arose "for money laid out and expended and commissions in the purchase and sale of goods by the plaintiff for the defendant at his re- quest. ' ' Norman v. Plumb, 12 C. C. (N.8.) 4S3, 21 C. "D. 60.5. Cf. McKemy v. Goodall, 1 C. C. 23, 1 C. D. 14. Mc'C'rea v. Sprinkler Co... Tddings 103. (e) Where goods are delivered on a special contract, the dealings can not be the subject of book account; and the book is not admissible to prove the alleged contract or its execu- tion. But where the special contract is wrongfully terminated, the rule seems to be that suit may be brought on an account, Baxter v. Leith, 28 0. S. S4, 90. Ralston v. Kohl, 30 O. S. 92. (f) And an action may be brought on account where there is a special contract, if the contract had been fully performed, or if additions or modifications have been sanctioned by the adverse party. In such a case, indebitatus assumpsit would lie, or the plaintiff may elect to plead specially. Cincinnati v. Cameron, 33 O. S. 330, 35G. ^ 389 METZLER'S OHIO TRIAL EVIDENCE 480 (g) The memoranda on the stub of a cheek-book are not a book account which a party may swear to. The same rule applies to the stubs in a party's note-book. Such stubs are not competent as a book account or to prove the purpose and effect of the promissory notes given. Wilson V. Goodin, Wright 210. Watts V. Shewell, 31 0. S :?:]1, 335. Mill Co. V. Hazen, 20 C C. 287, 11 C. D. 54. 388. PAROL TO VARY ACCOUNTS. (a) If the plaintiff sues two persons .jointly on an account for goods, he may offer in evidence his books to show that the goods were charged to both, although defendants had no knowledge of the entry. But if there is but one debtor charged, the plaintiff will not be allowed to testify that there are two, for this would be contradicting his accounts. McGee v. Orcran Co., 2 C. L. R. 219, 4 0. D, "R. 481. Richardson v. Wingate, 10 W. L. J. 115. 1 0. D. R. 478. Cf. Bldg. Assn. v. Hayes, 2 C. C. 225. 1 C. J). 450. (b) Where a sworn statement of an account is filed to give notice of a mechanic's lien, and the affidavit states that the annexed account is a true and correct itemized statement of the amounts and values of the labor performed and materials furnished at the times therein mentioned, and the last date therein mentioned is more than four months before the filing of the affidavit, the creditor will not be allowed to show by parol that the statement of the account is incomplete. Macklin v. Gas Engine Co., 13 C. C. (N.S.) 94, 22 C. D. 16 389. BOOK-ACCOUNTS OF OTHERS. (a) Where the question was whether or not defendant gave plaintiff a note on settlement of accounts, and the evi- dence of two witnesses was adduced to show that the account- books of defendant had been adjusted with the plaintiff, Avho then admitted the correctness of the account, the book was allowed to go to the jury as evidence of the extent and nature of the admission. The account-book, whether kept by plain- tiff or another, whether within or beyond his control, was the 481 ACCOUNT-BOOKS § 389 best evidence of its own contents, and better than the recol- lection of any person. Halleck v. State, 11 Oh. 400. Cf. Kugler v. Wiseman, 20 Oh. 3G1. (b) On the trial of an officer of a city and a member of a firm for presenting a false claim to the city, whereby $249 was collected by defendants from the city and only $49 was paid to the firm, the books of account of the firm are ad- missible to show that the bill was only $49, when it is shown that there was a conspiracy between the defendants to per- petrate the fraud, even though the other members of the firm had no knowledge of the plan. Davis V. State. 20 C. C. 430, 10 C. D. 738. (c) The cash-book of a firm is admissible to prove that a man as trustee for his wife had paid his wife's debt to the partnership ; and he will be entitled to credit for the amount as trustee. The fact that the husband had been a member of the firm, and had since died, does not change the rule. The cash-book is admissible under the statute. Miller v. McLean, 21 C. D. 64, 11 C. C. (KS.) 424. (d) If a firm has been dissolved and one member has taken over all the assets and assumed all the liabilities of the partnership, the account-books of the firm are admissible in favor of such member; or, if he made the entry, he may re- fresh his memory from the book and testify without offering the book in evidence. Miller v. Sands. 23 C. C. (N.S.) 483. See Spitzi;: v. Ki.irinoeriiii,' Co., 21 C. C. (N.S.) 34S. (e) Where entries arc made by a landlord in a })ass-book in the possession of the tenant, containing an account for rent, and the book is returned to the tenant, it will he presumed that the tenant had knowledge of the entries; and, in the absence of proof to the contrary, he is boniul thereby. The transaction between landlord and tenant may be such as to authorize the tenant to keep an ordinary book at5count. Heipley v. Green, 7 0. D. 497. Harrison v. Ohmer, Lldini's 132. § 391 METZLER'S OHIO TRIAL EVIDENCE 482 390. ACCOUNTS NOT IN BOOKS. (a) Under an early statute, an account was required to be kept in a book. A tally on a board, or a slate, or loose sheets of paper was held not to be a book account. In a ease where an account on a single piece of paper was offered in evidence, it was shown that it was a page of an account-book torn out by mistake or accident, and the page was then admitted as part of the book. Kennedy v. Ankrim, Tappan 40. Eichardson v. Winjiate, 10 W. L. J. 145, 1 O. D. R. 478. Allen V. Davis, Tappan HO. See Black v. Chesser, 12 O. S. 021. (b) But sales slips, even if they are not a book account, may be admitted as original entries made in the usual course of business. Sales slips are admissible when they are posted by carrying forward the total from one slip to another, so that the aggregate upon the final slip embraces the amount of all items on all the slips, and no otlier account is kept of the transactions. But a balance on the first slip obtained from a prior slip since destroyed is not admissible. O'Brien v. Westgate Co., 22 C. C. (N.S.) 261. 391. BUSINESS ENTRIES. (a) Where an entry was made in an account-book of origi- nal entries, or in the usual course of business, and the witness testifies that the entry was made by him at a time when the event recited therein was fresh in his mind and is correct, such entry is admissible, even though the witness, after read- ing it, testifies that he has no recollection of the facts therein stated. Traction Co. v. Hr.ckett. 6 O. App. 07, 28 O. C. A. 566, 30 C. D. 208. See Section 171 herein. (b) Where a witness truly made the entries in a freight- book of a railroad company, on the day the entries purport to have been made, in the regular course of business, including an entry of a particular shipment in question, the freight- book is admissible in evidence, Avith the oath of the witness showing these facts, although, at the time of testifying, he 483 ACCOUNT-BOOKS § 391 has no recollection of the particular shipment, or of anything of the date of its entry, and although his memory is not re- freshed by the book, and he knows nothing of the matter except as he sees it in the book, iloots V. State, 21 O. S. 653. (c) And where, in transferring goods from one car to an- other, "check-slips" were made in the regular course of busi- ness, showing the number of the cars and the descriptive marks of the goods, such "check-slips'' are admissible in evi- dence, with the testimony of the witness shoAving that they were truly made by him. and that the goods were marked and shipped as thereby indicated, the witness then having no other recollection of the transaction in question. Rhriedley v. State, 23 O. S. 130. (d) An appraisement is admissible as proof of its contents in an action several years after it was made, when one of the appraisers testifies that he is unable to state from memory the values of the assets of the estate, but knows that such values as set down in the appraisement were correct. Siffler V. Eosers, 46 Bull. 190. (e) The official stenographer's shorthand report of the former testimony of a witness who has changed his testimony may be used for impeaching purposes. The stenographer may refresh his memory from his written notes, or he may read his notes in evidence if he testifies that they were correctly taken and contain all the evidence on the subject, although he has no independent recollection of the testimony. If a stenographic report is read in evidence, a transcript thereof should be deemed to be in evidence, with the privilege to the opposite party of examining it and cross-examining upon it. .Tolm V. State, IG C. C. (N.S.) 316. IViin. Co. V. Trainer, 5 C. D. 51!), 12 C. C. 06. Baum V. State, 6 C. C. (N.S.) 515, 17 C. D. 569. Hutchinson v. State, 8 C. C. ^N.S.) 313, IS C D. 595. (f) But where it was not shown that a certificate of weight, from which a witness was testifying, was an exact copy of items from a book of original entries or had been §391 METZLER'S OHIO TRIAL EVIDENCE 484 given in the regular course of business by one authorized to do so, the witness then having no independent recollection of the weights, the certificate was not allowed to go to the jury. Emison v. Railroad, 12 C. D. 727. (g) And where the memory of a witness as to an event had failed, and a memorandum made by him soon af.er the event and relating thereto was offered as substantive evi- dence, his testimony having been that it was made by him, but that he had little or no recollection of the event, the writing was not admitted for the reason that it was not shown to have been practically coincident with the event, and because the writing was one which was procured in view of possible litigation. Traction Co. v. Hackett, G O. App 97, 28 0. C. A. 566, 30 C. D. 2GS. CHAPTER XXVII. PUBLIC WRITINGS-LEGISLATIVE AND EXECUTIVE, 392. General principles. IVJS. Acts of tlie legislature. 3!)4. Foreign law. 31)5. Federal records and documents. 3!)G. State records and documents. o!)7. Articles of incorporation. 3!)8. County records and documents. 3!t!). Municipal records. 400. Records of elections. 401. Marriage certificates. 402. Notarial certificates. 403. Private writings recorded. 392. GENERAL PRINCIPLES. (a) Courts will not compel the production of the original records of any public officer; but when produced, courts never reject them as secondary. Indeed, it is a general rule which admits of no single exception, that originals are good evidence when copies would be admitted. King V. Kenny, 4 Oli. 79, 83. Wolf V. Menager, 14 0. D. 128. (b) A public record of private writings may be proved by production. Where certified copies of such records are made evidence by statute, as in the case of the records of private writings in the office of the county recorder, the original records may be admitted instead of certified copies. The existence of a record and its contents can not be more satisfactorily established by the secondary evidence of a copy than by the production of the record itself. Wintlirop v. HrimcR, Wright, 3^10. Sl.eelian v. Davis, 17 O. S. 571, HSO. 485 §392 METZLER'S OHIO TRIAL EVIDENCE 486 (c) A statute making certified copies of certain public documents evidence in all courts and places in this state authorizes the admission of a copy only when the original Avould be competent. If the original would be incompetent, the copy would also be. State V. Wells. 11 Oli. 261. (d) A certified transcript of the record of an official bond is conclusive evidence of such record, and prima facie evi- dence of the execution and existence of such bond. But if the original bond is offered in evidence, proof of its execu- tion must be made. See Section 4, General Code. Nevvberger v. Finney. 17 C. C. •213. 9 C. D. 720. (e) If the law does not require a board to keep a writing or record of certain acts, parol evidence of such acts is ad- missible although minutes are regularly kept by a clerk. Carpenter v. State, 12 O. S. 4'u . Reynolds v. Scliweinefus, 27 O. S. oil. 320. (f) Sworn copies of public records from another state are not evidence until it is shown that the records themselves are kept under authority of law. A deposition of the clerk of a town in such state that the copy was correct was re- jected with the copy. Richmond v. Patterson, 3 Oh. 368. See also General Code, Section 15331 (R. S. U. S, Sec. 006). (g) The admission of documentary evidence does not vio- late the constitutional provision giving to an accused person the right to confront the witnesses. This right is confined to oral evidence, and does not apply to public records or other instruments in writing. State V. Berry, 13 C. C. (X.S.) 206, 22 C. D. 250. Folliard v. State, 14 C. C. (N.S.) 205, 22 C. D. 481. (h) Upon a plea of nul tiel record, the technical rules of the common law as to variance between the allegations and the proof are not in their strictness applicable under the civil code. Bradv V. Palmer, 10 C. D. 27, 19 C. C. 687. 487 PUBLIC WRITINGS § 393 393. ACTS OF THE LEGISLATURE. (a) The session laws published by the state are the com- petent and prima facie evidence of the correctness and au- thenticity of the laws as therein printed. But where there is a variance or repugnancy in terms between the printed copy of a statute and the original enrolled act, the latter controls. State V. Groves. SO 0. S. 351, 350. Cf. State. e.\ lel.. v. Price, 4 C. D. 200. S C. C. 25. (b) When a bill was passed, but was not copied on the journals, nor signed by the presiding officers, nor enrolled, nor filed with the secretary of state, nor published, it was held that a copy deposited in the state library in accordance with the statute is not admissible as evidence of the contents of such bill. State, ex rel., v. Kiesewetter, 45 0. S. 254. Cf. Burke v. Cincinnati, 8 N. P. 109, 10 0. D. 542. (c) Where the journals show that a bill was passed, and there is nothing in them to show that it was not read three times, the presumption is that it was so read; and this pre- sumption can not be rebutted by proof. Miller V. state. 3 0. S. 475, 484. See state, ex rel., v. Jones, 22 C. C. (;S2, H C. D. 49r,. (d) When the question is whether certain claims were allowed by a two-thirds vote of the members of the legisla- ture as required by the constitution, the legislative journals must furnish the appropriate evidence. Fordvce v. Goclman, 20 0. S. 1. Cf. Backenstoe v. State, 2 X. P. (X.S.) ITS, 1 1 O. D. 5S0. (e) *A law shown by the journals to have been passed by the proper majorities and duly signed by the i)residing officers can not be impeached by parol evidence that some of the concurring members had been seated on a contest of election by less than a constitutional quorum. St;itp. ex ml., V. Smitli. 44 O. S. .148. (f) P)Ut a duly enrolled bill may be impeached on the ground that it lias not received a con.stitutional majority of §394 METZLER'S OHIO TRIAL EVIDENCE 488 the members-elect of both branches of the general assembly; and upon this question the legislative journals must provide the appropriate as well as the conclusive evidence. Ritzman v. Campbell, 93 O. S. 240. (g) In Beyer v, Burress, 67 0. S. 500, the court inspected the legislative journals and declared an act invalid because, after the bill had regularly passed both branches of the legislature, a motion to reconsider was carried in the house and no further action was taken. Ritzman v. Campbell, 03 0. S. 24G. 200. (h) The rule does not authorize an inspection of the jour- nals to prove that a discrepancy exists between the bill as enrolled and as shown by the journals. In such cases, a duly enrolled bill is conclusive upon the courts as to its contents.. Ritzman v. Campbell. 0.3 0. P. 240. See State, ex rel., v. Jones. 22 C. C. (:S2. 11 C. D. 40G. Cf. State, e.x rel.. v. Price, 4 C. D. 290, 8 C. C. 2.5. (i) The legislature elected a man as judge, but his name was not recorded in the house journal the same as in the senate journal. It was held tliat members of the legislature could not contradict the journals. State, ex rol., v. Moffitt. 5 Oh. 338. 394. FOREIGN LAW. (a) The acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, territory, or country affixed thereto. See Section 15330. G. C. (R. S. U. S. Sec. 90.5). (b) Printed copies of written law enacted by another state, a territory of the United States or foreign government, proved or purporting to have been published by its authority, or proved to be commonly admitted as evidence of the exist- ing law in the courts or tribunals thereof respectively, will be admitted by the courts and ot^cers of this state on all occasions as presumptive evidence of such law. See Section 11498, General Code. ^Yilhelm v. Parker, 9 C. D. 724, 17 C. C. 234. 489 PUBLIC WRITINGS §394: (c) Notwithstanding the Ohio statute, the statute of an- other state, limiting the jurisdiction of a court of that state, was proved hy the testimony of a person learned in the law who testified as an expert. Brady v. Palmor. 10 C. D. 27. 10 C. C. fiS7. See also Ingraliam v. Hart, 11 Oli. 255. (d) The printed statutes of another state purporting to be i)ublished by its authority may be received to show that embezzlement is made a crime by the laws of that state. Ex parte Sheldon, 34 0. S. 319. (e) The laws of another state where they come in ques- tion in the courts of this state, must be pleaded and proved as matters of fact. If the law under which a right arises is not pleaded and ])roved, it is said that it will be presumed that the law of the forum controls the rights of the parties. Williams V. Finlay. 40 0. S. 342. r.ailroad v. Welsh, S!) O. S. 81 \\ iison V. Wilson, 8 0. App. 258, 28 O. C. A. 309, 29 C. D. 393. (f) The laws of a si.ster state conferring power upon its couits, when the scope of tliat ])0wer is put in issue, becomes a fact in issue; and it must be sustained by proof like any other fact. Wilhelm V. Parker, 9 C. D. 724, 17 C. C. 234. See Dodd v. Groll, 8 C. D. 334, 19 C. C. 718. (g) The statutes of another state and also any peculiar construction which the courts of such state may have placed upon them, when they come in question here, must be proved by evidence as matters of fact. If such a statute is intro- duced without evidence of peculiar construction, the settled construction of similar statutes will be applied. Larwell v. TTanover Society, 40 0. S. 274. Smith V. r.aitiuiii, 11 O. S. {>':(). (h) "Where it is sliown that llie statutes of another state are the same as those in Ohio, it will be presumed in the absence of evidence on llic sMbiect that the decisions uiuler the statutes are the same as in Ohio. Coffinberrv v. Plakeslee, 22 C. C. (X.S.) 34. §395 METZLER'S OHIO TRIAL EVIDENCE 490 (i) The existence, construction and legal effect of for- eign statutes are rather matters of fact than of law ; and Avhen they have received an authoritative construction where they were enacted, no inquiry into its correctness is allow- able. Hank V. Baker, 15 0. S. 6R. (j) The statute of limitations of another state as a de- fense must be proved like other matters of fact; and where the record is silent on the point, it will not be presumed that evidence was offered to prove it. Whelnn v. Kinsley, 20 0. S. ]?,]. J'>arr v. Closternian, 2 C. C. 387, 1 C. D. 540. (k) The common or unwritten law of such other state, territory or foreign government may be provetl as facts by ])arol evidence. Books of reported cases adjudicated in its courts may also be admitted as presumptive evidence of such law. See Section 11400 of tlie General Code. (1) Where, on the trial of an issue respecting the law of another state, the decisions of the courts of that state are given in evidence to the jury, it is the province of the jury to determine whether or not such decisions have been made; l)ut it is the duty of the court to construe and deduce from them the rules of law which they establish. Alexander v. Penn. Co., 48 0. S. 023. Ott V. Railway, 10 C. D. 85. 18 C. C. 3!I5. See Railroad v. Welsh, 89 O. S. 81. Xienaber v. Tarvin, 9 O. D. 501, 7 X. P. 110. 395. FEDERAL RECORDS AND DOCUMENTS. (a) Copies of books, maps, records, papers or documents on file or deposited in any of the executive departments of the United States government, authenticated under the seal of such department, shall be competent evidence and have like force and effect as the originals. See Section 11500, General Code. (b) A paper duly certified by the commissioner of pat- ents to be "a true copy from the record of that office of the 491 PUBLIC WRITINGS §396 specifications" of a patent Avithout an authenticated copy of the patent itself, is not competent evidence. Letters patent afford the best evidence of what is covered by them. Davis V. Gray, 17 0. S. 330. Cf. Strader v. Lloyd, 1 W. L. J. 30(i, 1 (). I). Yl. :.7. (c) A certificate of the commissioner of patents of the correctness of a copy or translation from a French volume in the patent office, is inadmissible to prove the existence of an invention prior to plaintiff's. The book itself or a duly proved translation is the only way its contents can be shown. Gaylord v. Case, 5 A. L. R. 404, 5 0. D. E. 413. (d) A condition in a contract provided that it should be void if a certain device is not patentable in England, which was required to be shown by satisfactory documentary evi- dence. It was held that this means not merely written evi- dence, but that kind which proves the fact ; that certificates of experts that the device was not patentable is not such evidence. Atkins V. Ballauf, 1 Dis. 382, 12 0. D. K. 684. (e) An entry made by the registrar of a land office in the tract-book that certain tracts are school lands, is prima facie evidence that they were duly selected and approved as such. Coombs V. Lane, 4 0. S. 112. (f) The state courts having no power to compel the pro- duction of the records of the Internal Revenue Department ; exemplified copies are of necessity the best evidence and are competent, Folliard V. State, 14 C. C. (N.S.) 20.-5, 22 C. D. 481. 396. STATE RECORDS AND DOCUMENTS. (a) Copies of papers, books and records on file or depos- ited by virtue of law in certain state executive offices and county offices, when properly certified, are competent evidence and have like force and effect as the originals. See Section 11500, General Code. § 396 METZLER'S OHIO TRIAL EVIDENCE 492 (b) An entry in a record kept in the governor's office, as required by law, to record the ])resentation of bills, is suf- ficient to prove a presentation. Parol evidence to contradict such an entry is not admissible. And. evidence will not be received to show that no official proceedings w^ere had or taken by the governor for ten days after presentation of a bill. W'rede v. Tlichardson, 77 0. S. 1R2. (c) The statute which made evidence the certified copies of the files of the auditor of state, authorizes the admission of such copies only when the originals would be competent. And these originals would not be competent if there is better evidence in the office of the county auditor. State V. Wolls, H Oh. 261. (d) In an action by the state for the recovery of canal lands, it is proper for the state to introduce in evidence the specifications and rules for the construction of canals so as to show the dimensions of the canals and banks; but an epitome of the same prepared by the canal commission is not competent evidence. An officer was not allowed to testify as to what appeared on the books, because the books are the best evidence of w^hat they contain. State V. Japan Co., 6G 0. S. 1R2. State V. Perry, Wriglit, 662. (e) Leases of surplus canal water and connecting lands, which were deposited with the board of public works and recorded in a book provided for that purpose, were provable by copies certified by the president of the board. Emmitt v. Lee, 50 0. S. 662. (f) Sworn copies of estimates of public works from the register in the office of the resident engineer are competent evidence, where it is provided by contract that such engineer shall make estimates of work done, upon which payments shall be made. The register was made up from reports by assistants ; but it was held that it was a record and was made up like all records. Lyon V. McCadden, 15 Oh. 551. 493 PUBLIC WRITINGS § "^93 (g) A certified copy of the record of a birth or doatli registered under the statutes relating to vital statistics, -when properly certified by the state registrar to be a tru" copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated. See Section 231, General Code. 397. ARTICLES CF INCORPORATIOM. (a) On the trial of an issue of nul tiel corporation, a certificate of incorporation may be rejected as evidence, un- less the corporation shows fulfillment of conditions precedent required by the law under which it was formed. Navigation Co. v. Eagle, 20 0. S. 238. (b) "When one of the issues is whether the defendant is a corporation, the affidavit to the answer purportnig to be made by the superintendent of the defendant, "a corpora- tion," is not the best evidence. Packet Co. v. Fogarty, C. C. 418. 6 C. D. 3".". (c) In a prosecution for an offense against a railroad company, its corporate character is sufficiently shown by proof that it Avas at the time a corporation de facto, or by proof that it assumed and notoriously exercised the franchise of a corporation, Burke v. State, 34 0. S. 79, Murpiiy V. State, 36 0. S. 628, Calkins v. State, 18 0. S. 306. (d) On an indictment for having in possession fake and counterfeit bills on a foreign bank with intent to barter, the state is not bound to prove it to be an incorporated bank by the production of its charter. The existence of the bank may be shown by reputation. Sasser v. State, 13 Oh. 4.'i3. See Reed v. State, 15 Oh. 217. 398. COUNTY RECORDS AND DOCUMENTS. (a) The county commissioners are entitled to the custody of their own records and can not be comi)elIed to produce the originals in court; but when presented they are as good evi- ^ 398 METZLER'S OHIO TRIAL EVIDENCE 494 denco as copies authenticated in the most ample forms of law. And \vhere the proceedings of the commissioners in laying out a road ^vere not recorded as required by law, the minutes of the board, the original report of the reviewers and the plat were admitted in evidence. King V. Kenny, 4 Oh. 79, S3. (b) The record of the county commissioners establishing a road is only prima facie evidence; it may be impeached by showing that no notice had been given and that the petition for the road was not signed by the number of freeholders required by statute. But evidence to show an agreement to vacate the road entered into between the commissioners and a landowaier wnll not be admitted. Anderson v. Commissioners, 12 O. S. 635. Corry v. Gaynor, 22 0. S. 584. See Stolz v. Selz, 12 O. D. 664. See Beebe v. Scheidt, 13 O. S. 406. (c) Where, after a lapse of nearly a quarter of a century, the question was whether a road had been vacated, the court said it will be presumed that the record Avas made and lost, and that the vacation was provable without the record. Ingersoll v. Herider, 12 Oh. 527, 542. (d) The minutes of a taxing board are not conclusive, and the real facts may be shown by parol unless otherwise provided by statute. Neither is the tax duplicate conclusive as to the verity of its ow^n record. Parol evidence will be received to correct errors on the duplicate. State, ex rel.. v. Aldridge, 66 0. S. 508. Lewis V. State, e.x rel., 59 0. S. 37. Desliler v. Sims, 14 0. D. 532. (e) The record of a board of equalization is not conclu- sive, but is only prima facie evidence in an action under section 12075 of the General Code by a taxpayer challenging the legality of a tax or assessment. Hagerty v. Hnddleston, 60 O. S. 149. (f) A record of a tax sale and entries on the tax dupli- cate in the office of the county auditor may be proved by 495 PUBLIC WRITINGS § 399 s-svorn copies. The books of the auditor are admissible to prove entries in a tax sale, even though the entries are not entirely regular. And matters not required to be of record may be proved by oral evidence. Sheldon v. Coates, 10 Oh. 278. Thevenin v. Slociim, 16 Oh. 51!t. (g-) Where the statute does not make a tax deed prima facie evidence, the destruction of the auditor's records will not create a presumption of its validity nor excuse the fail- ure to produce other attainable evidence. And a tax deed does not prove itself, and is not admissible in evidence with- out proof of its execution and its connection with the land in suit. Rhodes v. Gunn, 35 0. S. 387. Cf. Fitzpatriek v. Forsythe, 7 A. L. R. 412, 6 O. D. R. 682. Hughes V. Lehan, 1 C. C. 9, 1 C. D. 5. 399. MUNICIPAL RECORDS. (a) The printed copies of the by-laws or ordinances of a corporation, published under its authority, and transcripts of any by-laws, resolutions, or ordinances, or of any act or pro- ceeding of a municipal corporation, recorded in any book, or entered on any minutes or journal kept under the direc- tion of such corporation, and certified by its clerk, shall be received in evidence through the state, for any purpose for which the original books, ordinances, minutes, or journals would be received. Section 4235, General Code. (b) A transcript of a duly recorded ordinance, certified by the city clerk, is sufficient proof that it was duly passed. This can not be proved by parol evidence. The certificate of the clerk of the due publication of the ordinance is also sufficient. Railroad v. Railroad, 5 C. D. 643, 12 C. C. 367. Railway v. Workman, 66 0. S. 509. O'Brien v. Cleveland, 1 C. L. R. 100. 4 0. T). R. 189. (c) Statutory provision for the maintenance and control of a free public hospital by a city, willi autlioj-ity in tlio director § 399 METZLER'S OHiO TRIAL EVIDENCE 496 of public safety to provide rules and regulations for its gov- ernment, and a rule requiring the receiving physician to make a written report of each ease with his diagnosis, renders such a report a public document or record, and therefore admissible in evidence. Cassidy v. Traction Co., 21 N. V. (NS.) 125, 20 0. D. 6. (d) In an action to recover for an injury alleged to have been caused by cars moving on a railroad track, proof that the company was moving its cars in violation of a city ordi- nance at the time the injury was intlicted, is competent evi- dence to show negligence. And proof of such ordinance is competent as reflecting on the degree of care required of the injured party to avoid the injury; for he had the right to act on the assumption that tlie company Avould conform to the requirements of the ordinance. This case (88 0. S. 632) holds that such violation is not sufficient per se to create a liability. But 'in later cases it has been held that a violation of an ordi- nance or statute passed for the protection of the public is negligence iier se. Meek v. Ponn. Co., .?S 0. R. (i32. 637. Allen V. Sniitli, .1 O. Apj) 284, 27 0. C. A. 203. DiiBois V. Sdiell. 04 0. S. 93. Cf State V. Born, 85 O. S. 430. (e) Where the issue raised is as to whether the car which caused the accident was being operated at a high and danger- ous rate of speed, in excess of tlie rate pi'escribed in a city ordinance, it is not error to refuse to admit in evidence an ordinance regulating, the speed of cars within the municipal limits, when there is no evidence offered to shoAv the rate of speed at the time of the accident. Furrer v. Railway, 7 O. App. 491, 27 0. C. A. 410, 30 C. D. 200. (f) A book of levels from the city engineer's office is not admissible to prove a grade established by ordinance. And t"he city engineer may not testify to the districting of the city for sewer purposes ; such facts should be proved by the ordinances. Tvailroad v. Pfau, Bull. 200. 8 0. D. P. 601. Cleveland v. Beaumont, 4 Bull. 345, 4 0. D. B. 444. 497 PUBLIC WRITINGS §400 (g) But an action to enjoin the collection of a street as- sessment because council did not undertake to determine the amount of special benefits conferred, parol evidence can b-i introduced to show that the authorities did not act on the proper basis. Chamberlain v. Cleveland, 34 O. P. 5ol. (h) And if the records of a village council or school board do not show a contract of employment made at a regular meeting, it is competent for the person contracting to prove that a resolution had been adopted, but omitted from the minutes. Drott V. Riverside. 2 C. D. .'fio. 4 C. C. 312. Dixon V. Subdis^trict. 3 C. C. 517, 2 C. D. 29S. (i) A book containing entries of township matters does not prove itself as a township record, but must be identified as such. And if such record is silent as to an official act or the date thereof, parol evidence is admissible to prove the fact. state V. Wallahan, Tappan, 80. Ratcliff V. Teters, 27 0. S. 66. Albright V. Payne, 43 0. S. 8. (j) A copy of a bond of a township officer certified by the clerk of the township shall be admitted in any court in this state as evidence the same as the original bond. e~ee Section 330G, General Code. 400. RECORDS OF ELECTIONS. (a) In the trial of a contested election, the rule which requires the production of the best evidence applies in re- spect to the contents of poll-books, tally-sheets and the num- ber and contents of ballots cast at the election, in cases where these are attainable. Sinks V. Eeese, 19 0. S. 300. (b) Poll-books, tally-sheets and returns .substantially com- plying with the statute, can not be excluded if formal mis- takes and omissions are supplied by evidence. The record § 400 METZLER'S OHIO TRIAL EVIDENCE 498 can not be impeached on the ground that the vote in some of the townships can not be judicially ascertained, if no illegality is found. Towers V. Reed, 10 O. S. 181). (c) Poll-books duly certified and returned are prima facie evidence of the truth of their contents, but this presumption will be rebutted by proof that they are fraudulent and ficti- tious to such an extent as to render them wholly unreliable. AVhere a poll-book is thus impeached, the burden of other- wise proving legal votes is thrown upon the party claiming them. riielpn V. Scliroder, 2(i 0. S. 540. (d) The original tally sheet of a municipal election, duly certified by the officers thereof, is, on a proceeding in quo w^arranto, prima facie evidence of the election to the office of mayor of the person for whom it shows a majority of the ballots cast for said oifice was given. State, ex rel., v. Donnewirth, 21 0. S. 216. (e) In cases of fraud, accident, mistake, misapprehension or negligence, where duties of a ministerial character in refer- ence to ballots cast are omitted by the judges of elections, oral evidence is admissible to show the true character of the ballots as to w-hich there is doubt, and to identify with cer- tainty the poll-books and tally-sheets. State, ex rel., v. :\rarkh'y. C. C. (X.S.) .-)lil, 20 C. D. li:J. (f) Where certain marked ballots were rejected at the count and locked in a box which was delivered to the town- ship clerk, where they remained untampered with, it was error to exclude such ballots on trial of a contest ; and after excluding them, it was error to reject parol evidence as to how they had been marked. State, ex rel., v. Patterson.. 84 (). S. SO. Cf. State, ex rel., v. Donnewirth, 21 0. S. 216. (g") Where ballots have been destroyed by the judges of election, oral testimony is admissible in a contest of the elec- 499 PUBLIC WRITINGS §400 tioii to sliow how these ballots came to be destroyed, and for ■whom they were counted, aud how they were marked. State, ex rc'l., v. ;Mnrkloy, C. C. (X.S.) nc.l. 20 C. D. 11:1. Williams v. Barker, 4 N. P. (N.S.) 5%, 17 O. D. 079. State V. fon-er. 5 C. C. (X.S.) 11!). 14 C. 1). 27(1. Dittric-k V. Kelley, 20 N. P. (N.S.) 86, 27 O. D. 500. (h) The fact that an election was held under a local- option law and the result thereof, may be established by a certifieate as to the result of such election; and it is not a violation of the constitutioiuU i)rovision givin ('. C. (N.S.) IS."), 1(1 C. 1). rMl. Lynch V. State, 12 C. ('. iX.S.) 330, 21 C. D. 352. State V. Hinkelnian, Ki C. C. (N.S.) 321. 22 C. D. 1. (i) In case of conflicting certificates of election under a local-option law which were signed by the same officers, parol evidence is admissible to impeach the accuracy of the tally- sheets and to explain errors. The court may go behind the face of the returns, and inquire into the facts and correct mistakes. Smith V. Pauh, 14 C. C. (N.S.) 33, 22 C. D. r,15. (j) The official registers of electors of the district are eom- l)etent as evidence in a local-option contest, and are sufficient to make i)rima facie evidence of residence within the district for the requisite statutory period. In re Petition, 7 O. App. 222, 27 0. C. A. 580, 2R C. D. 347. Dittriek V. Kelley, 27 O. D. 500, 20 N. P. (N.S.) 86, 88. (k) A constable justifying his acts as such may show by general reputation that he was a de facto officer without pro- ducing a certificate of election. And the same rule was followed in case of a tax collector, .lolinson V Stedman, 3 Oh. 04. Kldrcd V. Sexton, 7, Oli. 215. §402 METZLER'S OHIO TRIAL EVIDENCE 500 401. MARRIAGE CERTIFICATES. (a) A -writing purporting to be a marriage certificate, signed by the minister who solemnized the marriage, but not dated, nor recorded, nor exemplified in any way, nor entitled to be admitted as an ancient document, is not admissible in a criminal prosecution. Whalen v. State, 12 C. C. 5S4, 5 C. T>. 4S8. (b) A marriage may be proved by a person present at the ceremony, for the record is not the only evidence and would not identify the parties. And on an indictment for bigamy, the admissions of the defendant as to the prior mar- riage may be given in evidence to prove the fact of such marriage; and it is not necessary to produce the record. Wolverton v. State, 10 Oh. 173, ITfi. Pappalardo v. Pappalardo, 6 O. App. 201, 28 0. C. A. 449, 30 C. D. 285. Logan V. Gray, Tappaii, 6!). Stanglein v. State, 17 0. S. 4.-)3. Cf. Whalen v. State, 12 C. C. 584, 5 C. D. 488. Bates V. State, 19 C. D. 189, 9 C. C. (N.S.) 273, 282. (c) A transcript of the record of a marriage in a foreign country is not competent prima facie evidence of the mar- riage therein recorded, without proof of the laws of such foreign country requiring that such record be made and kept. Stanglein v. State, 17 0. S. 4.'53. (d) In divorce proceedings, proof of cohabitation and reputation of the marriage of the parties is competent evi- dence to prove such marriage ; and may be, within the dis- cretion of the court, sufficient evidence. This rule applies to the marriage sought to be dissolved, and not to a former mar- riage assigned as a ground for the divorce. See Section 11989, General Code. Houpt V. Iloupt, 5 Oil. 539. 402. NOTARIAL CERTIFICATES. (a) A regular statutory certificate of the acknowledg- ment of a mortgage is, in the absence of fraud, conclusive evidence cf the facts therein stated. The grantors can not 501 PUBLIC WRITINGS § 403 impeach the acknowledgment as against the grantee for a defect of which he has no knowledge. Baldwin V. Snowdon. 11 O. S. 20.*?. Leininon v. Hiitflim.-,. 1 L'. L. ;JSS, 1 I. I). 217. Institute v. Gibbons, 3 Bull. 5S1, 7 0. D. R. ,11 il. (b) However, a grantor may, even as against an innocent party, show that he never signed the mortgage or that he never in fact apj)eai'ed before the officer and acknowledged the execntion of the mortgage, though it purports to have been duly acknowledged. But tlie proof must be clear a-id convincing. Williamson v. Carskadden. 30 0. S. f)fi4. Feagk-s v. Tanner, 20 C. C. Oh. 7>^r,. Pelton V. Platner, 13 Oh. 209. StockwcU V. Coleman, 10 0. S. 33. (g") A transcript from a common pleas court in Pennsyl- vania contained a proceeding upon a certiorari and brought into that court a proceeding before a justice; it Avas held that a transcript from an appellate court is not proper evidence of proceedings in the court below. Gibbs V. Fulton, 2 Oh. 180. §405 METZLER'S OHIO TRIAL EVIDENCE 506 405. FORMER ADJUDICATION. (a) In the trial of a civil action where the defense of res judicata is interposed, it is proper to admit as evidence so much of the record of the former trial as will aid in deter- mining the issue. When it is claimed that the record is lost, the judgment may not be proved by oral evidence unless the loss is satisfactorily proved, Reid V. Mathers, 14 C. C. (X.S.) 473, 23 C. D. 345. Inman v. Jenkins, 3 Oli. 271. (b) The controlling question is whether the issues are the same in both cases. And where the pleadings and the record in the former case do not show what issue was made, it is competent to show by oral evidence what was the sub- ject-matter of the controversy. And in such cases, the ques- tion is one for the jury. Board of Education v. Coagrove, 11 C. C. 163, 5 C. D. 343. Topliff V. Topliff, 8 C. C. 55, 4 C. D. 312. ]\Iahaffy v. Rogers, 10 C. C. 24, 6 C. D. 88. See Babcock v. Camp, 12 0. S. 11. Youmans v. Caldwell, 4 0. S. 71. (c) The opinion of the court may be resorted to in order to show that it intended to adjudicate a matter. And evi- dence is admissible to show that the trial judge so instructed the jury as to exclude a certain matter, and a juror may testify as to what claims were allowed by a jury under a plea of payment. Topliff V. Topliff, 4 C. D. 312, 8 C. C. 55. Cf. Harlan v. Gnndorson, 3 0. App. 141, 20 C. C. (N.S.) 462, 26 C. D. 441. Krel.s Co. v. Studor, 11 Bull. 190, 9 0. D. R. 199. Piatt V. St. Clair, 6 Oli. 227. (d) But Avhen the pleadings shoAV clearly the issues, or the record of the former adjudication is explicit and ])lain, it is error to admit oral evidence to explain it or to show that questions not in issue were considered. Topliff V. Topliff, 8 C. C. 55, 4 C. D. 312. Cincinnati v. Hosea, 19 C. C. 744, 10 C. D. 618. (e) Where a judgment is relied upon as an estoppel, the question is not what the court might have decided in the 507 JUDICIAL WRITINGS §406 former action, but Avliat it did in fact decide as shown by the judgment. A judgment is conclusive by way of estoppel only as to facts without the proof or the admission of which it could not have been rendered. Porter V. \Va,;:nor. 3r> O. S. 471. Lore V. Truman, 10 O. S. 4."). (f) If the record of a judgment offered in evidence to support a plea in estoppel shows no issue except oiie under ^vhich neither of the contracts sued on was confessed or ad- missible under the issue in the former case, the record is not proper evidence. And evidence dehors the record to show that they were in fact admitted, would contradict the record and is not admissible. Hanes v. Railroad, 40 0. S. 05. (g) When a party claims a former adjudication to be an estoppel, such judgment should be pleaded. But where the same is not pleaded when it can be, it is still admissible ; how- ever, it is not evidence conclusive of an estoppel, and oral evidence may be given to show the truth. Meiss V. Gill, 44 0. S. 253. Werner v. Cincinnati, 3 C. C. (N.S.) 276, 13 C. D. 475. 406. FORMER CONVICTION. (a) In a criminal case, a plea of former conviction or acquittal presents an issue of fact ; and the record of such former conviction or acquittal or a transcript thereof is com- petent evidence in support of such plea. Oral evidence of the fact is not admissible. Whitman v. State, 7 C. C. (N.S.) 334, 17 C. D. 735. Robbins v. Rudd, 2 Oh. Ifi. Griffith V. State, 93 O. S. 294, 6. (b) The identity of the offense must be proved by the defendant, and it may be proved by oral evidence. The state may also show in rebuttal that in the former prosecution it elected to rely on a different transaction from that relied on in the second case, and "vvhere the record is silent as to the election it may be proved by parol. "Hainbridpe v. State, 30 0. S. 264. See Patterson v. State, 96 0. S. 90, 98. Section 13630, General Code. §407 METZLER'S OHIO TRIAL EVIDENCE 508 (c) Where in a prosecution for bastardy, the accused pleaded a former prosecution on the same charge and a settle- ment thereof with the complainant, the plea may be defeated by showing that such settlement was obtained by the fraud of the accused. Kezartee v. Cartmell, 31 O. S. 522. (d) Upon the trial of an accused for larceny, where the state relies for conviction upon proof of a criminal plan to commit several larcenies, and offers evidence of such criminal plan, the fact that the accused at a former trial had been acquitted of another larceny does not preclude the state from proving that such plan embraced such other larceny, although the evidence offered at such second trial was substantially the same as that produced by the state on the former trial which resulted in a verdict of acquittal. Nor can the record of such former acquittal be offered by the accused either as a bar to the offense charged in the second indictment or as an adjudi- cation of fact that the accused Avas innocent of the former larceny, and that the criminal plan did not embrace it. Patterson v. State, OG O. S. 00. 407. CORRECTION OF RECORD. (a) Every court has power to direct the clerk to correct not only clerical errors, but also such errors as may arise from any fraudulent or improper alteration or mutilation of its files or records. And in order to make such correction, the court may hear evidence and act on the proof. TTollister v. fudges, 8 0. S. 201. (b) On the hearing of a motion to vacate or modify a judgment or order on the ground that it was entered by mis- take, parol evidence is admissible. The papers in the case, the minutes of the court, the recollection of the judge and of others who heard the decision are competent evidence. IMiirpl^v V. Rwadner, 34 0. S. 672. Lambert v. Mustard. 18 0. S. 419. Elliott V. Platter, 43 0. S. inS. (c) On a motion for an order nunc pro tunc, the court should resort to all competent sources of information, in- 509 JUDICIAL WRITINGS § 408 eluding the oral evidence of. witnesses who have personal knowledge of the former judicial action ; and the proof should shovv- clearly and convincingly that such former action was in fact taken. Jacks V. Adamson, 56 0. R. 307. Cf. Stark V. Stark, 17 C. C. (X.S.) 308, 24 C. D. 135. (d) Where action has been taken by a court which can only be evidenced by the record, and the clerk has neglected to make the entry, it is proper to sui)ply the evidence by a nunc pro tunc entry: but the court is without power to create evidence by a subsequent order that certain action was taken which never did in fact occur. Bradford v. Watts. Wrijriit. 405. Trinting Co. v. Green, 52 O. S. 487. Toledo V. Preston, 50 0. S. 361. (e) A court has power after the term, by a nunc pro tunc entry, or otherwise, to amend and modify its judgments or decrees, or the entries thereof, so as to correct clerical errors and make the entries conform to the judgments and "decrees actually rendered. Wrentmore v. Wrentmore, 17 C. C. (X.S.) 81. (f) An order of court authorizing a sale of land made after the repeal of the statute, and when the court was with- out power, is void; and it can not ])e made valid by entering it as of a preceding term before the repeal of the statute. And when such an order or judgment is attacked, its defects can not be supplied by parol evidence. Ludlow V. .Tohnston, 3 Oh. .""3. (g) Where the docket of a justice of the peace shows that judgment was rendered ten days after the return of the ver- dict by the jury, parol evidence is not admissible to show that the judgment in fact was rendered immediately upon the return of the verdict. Sigler V. SliMffer. C. C. fX.S.) 207. 10 C. D. 423. 408. IMPEACHMENT OF RECORD. (a) The legal effect of a judgment can not be varied by evidence of extrinsic facts occurring before its rendition. An §408 METZLER'S OHIO TRIAL EVIDENCE 510 agreement to stay execution made at such time, but not entered upon the record, should not form an exception. Woolwortli V. Brisker, 11 0. S. 593, 597. See Sargent v. Sargent, 11 6. D. 218, 8 N. P. 238. (b) An entry was placed on the journal appointing a special term of court, and it was agreed by the parties that the entry was invalid. It was held that it was not error to refuse to suffer the record to be invalidated by such an agree- ment. And where parties consented to an entry during the term, they will afterward be estopped from showing that the journal entry is untrue. Merchant v. North, 10 0. S. 251. Potter V. Myers, 31 O. S. 103. (c) In an action on a recognizance forfeited in the court of common pleas, it was held that oral evidence is not ad- missible to contradict the record of forfeiture, and that it can not be impeached by the sureties for fraud. Calvin v. State, 12 0. S. GO. (d) The probate courts of this state are, in the fullest sense, courts of record ; they belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered. Shroyer v. Richmond, 16 O. S. 455. Bell V. State, 7 O. App. 185, 27 O. C. A. 3.53, 29 C. D. 48. See Hamilton v. Stone, 13 C. C. (N.S.) 556, 23 C. D. 471. (e) Hence, an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, can not be col- laterally impeached. The record showing nothing to the con- trary, it will be conclusively presumed, in all collateral pro- ceedings, that such order was made upon full proof of all the facts necessary to authorize it. Shroyer v. Richmond, 16 0. S. 455. (f) And where all the records of the probate court were destroyed by fire subsequent to the probate of a will and the settlement of an estate, there being no direct evidence that the widow was cited to elect or made any election to take 511 JUDICIAL WRITINGS §409 under the will, a court Avill presume that the required citation was issued and "that the widow elected to take the more valu- able estate. Weaver v. Kin?, 12 C. C. (X.S.) 120, 21 C. D. 199. See Davis v. Davis, 11 O. S. 380. (g) An equivocal or ambiguous entrj^' appearing upon the docket or journal of a court may, however, be explained by parol evidence. In an action for malicious prosecution resulting from the arrest of plaintiff, caused by defendant, in the mu- nicipal court of Cincinnati, on the charge of defrauding an innkeeper, evidence was introduced by the testimony of the deputy clerk of the municipal court, who produced and identi- fied the judge's and clerk's dockets of the municipal court, each of which showed the notation as to said case: "Dis- missed for .want of prosecution. Costs of warrant." The trial-court refused to permit the plaintiff to answer the ques- tion: "Were you actually dismissed from that court?" It was held that it was error in the trial-court to refuse to permit the plaintiff' to testify as to the fact of his dismissal, con- sidering the equivocal or ambiguous entry found in the journal. James v. Hotel Co., 6 O. App. 162, 28 0. C. A. 446, 30 C. D. 259. (h) And in a suit on a judgment, oral evidence is admis- sible to show that the plaintiff in the record of the judgment is identical with the plaintiff in such suit. And where, from the oral evidence, it appears that in the record of the judg- ment the plaintiff therein was by mistake described as a cor- poration, when in fact the plaintiff was a partnership, or its assignee, seeking to recover on the judgment, such evidence should not be excluded. Jackson v. Foundry & Machine Co., 6 0. App. 171, 27 O. C. A. 81, 28 C. D. 126. 409. QUESTIONING JURISDICTION. (a) When it does not otherwise affirmatively appear from the record, it will be presumed that a court of general juris- diction regularly acquired and lawfully exercised its juris- diction over the parties. And the record of an inferior court §409 METZLER'S OHIO TRIAL EVIDENCE 512 imports absolute verity when it shows on its face that juris- diction was obtained. Paulin V. Sparrow, 01 0. S. 279. Kingsborough v. Tousley, 56 0. S. 4.50, 4.55. McCurdy v. Baughman, 43 0. S. 78. (b) Therefore, if the language of a finding imports that the notice required by law had been regularly given, evidence will not be received to contradict this finding of the court. Where jurisdiction is shown or must be presumed, the judg- ment or order of the court can not be collaterally impeached. Tuchards v. Skiff, 8 0. S. 586. (c) But before jurisdiction can be affirmed to exist, it must be made to appear that the law has given the tribunal power to entertain the complaint against the person or thing sought to be charged or affected ; that such complaint has actually been preferred ; and that such person or thing has been properly brought before the tribunal to answer the charge. Sheldon v. Newton, 3 0. S. 494. Spoors V. Coen, 44 O. S. 497. (d) The jurisdiction of a court entering a judgment may be inquired into, when such judgment is made the foundation of an action. And it is competent to plead and prove in de- fense, though it be in contradiction of the record, that the defendant was not served with process, nor jurisdiction of his person otherwise obtained by the court rendering the judg- ment. Spier V. Corll, 33 0. S. 236. Kingsborough v. Tousley, 50 0. S. 4.50. (e) A judgment of another state, which is duly authenti- cated as a judgment of a court of record of such state, ia entitled to full faith and credit if it appears that such court had jurisdiction over the subject-matter and the person, and that it is valid and conclusive in the courts of that state. Sipes V. ^Vhitney, 30 0. S. 69. Spencer v. Brockway, 1 Oh. 259. Goodrich v. Jenkins, 6 Oh. 43. 513 JUDICIAL WRITINGS §410 (f) But the record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction ; and if it is shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. Neither the constitutional pro- vision requiring full faith and credit nor the federal statute prevents an inquiry into the jurisdiction. Pennywit v. Foote, 27 0. S. COO. Spier V. Corll, 33 0. S. 23(;. Marks v. Fordyce, 2 A. L. R. 3112, r^ O. D. R. 81. (g) In a proceeding invoking the original jurisdiction of the supreme court to prohibit the enforcement of a judgment rendered by the court of appeals, upon the ground that that court had no jurisdiction of the cause, the supreme court acts as a reviewing court and is bound by the authenticated record of the court of appeals as to the date of the rendition of the decision or judgment by that court. State, ex re!., v. Jones, 95 O. S. 357. (h) The distinction between cases where the validity of the record of a court of general jurisdiction is drawn in question collaterally, and those in which such record is directly im- peached by writ of error or bill of review, is broad and well defined. In the one case, jurisdiction is pi-esumed prima facie, unless the record disproves it ; while in the other, if it is de- nied, its existence must be proved by the record itself. Trimble v. Longwortli, 13 O. S. 431, 439. 410. IMPEACHMENT OF VERDICT. (a) The testimony of jurors will not be received to im- peach their verdict by showing misconduct on the part of other jurors. To permit jurors to impeach the behavior of their fellow-jurors would open the door to every species of insinuation, would detract from that relation of confidence ■which should be established among the members of the jury, and would endanger the stability of verdicts and the security of judgments. Ilulet V. Barnett, 10 Oh. 459, 461*. Farrer v. State, 2 0. S. 54. Murray v. State, 23 C. C. (N.S.) 508. Coins V. State, 40 0. S. 457, 472. §410 METZLER'S OHIO TRIAL EVIDENCE 514 ^ r (b) Affidavits of jurors stating tliat they misunderstood the charge of the court or that the jury adopted the average method of arriving at the amount of their verdict, will not be received on motion to set aside the verdict. And it is not proper to permit a verdict to be questioned by the affidavits and testimony of jurors as to w^hat consideration they gave certain arguments of counsel. Holman v. Eiddle, 8 0. R. 3S4. Jani's V. Hoehn, 3 C. C. 433, 2 C. D. 245. State V. Sisson, 9 N. P. (N.S.) 420, 20 0. D. 20.'5. (c) In a criminal case there were offered the affidavits of two jurors to the effect that the degree of homicide was determined by lot, and the trial court held them incompetent. In the opinion it is said that a case like this strains the prin- ciple to its utmost tension, and suggests a doubt whether there may not be found a carefully guarded exception to a rule, tlie universal application of which may present a spec- tacle so discreditable to our jury system. Coins V. State, 46 0. S. 4o7. 472. See also Farrar v. State, 2 0. S. 54, 56. (d) But affidavits of jurors as to the conduct of a fellow- jaror on view of premises are admissible, as that would not be invading the jury-room. And a juror's affidavit is ad- missible to sustain a verdict upon a motion for a new trial on the ground of a juror's misconduct or his disqualification. Aim V. Andrews, 6 C. D. 514, C. C. 501. 504. State V. Cuppett, 1 W. L. M. 320, 2 O. D. R. 78. (e) Such affidavits are also admissible to show that the verdict as received and entered of record does not embody the true findings of the jury, by reason of a mistake in draw- ing it or of a mistake made in oj^en court when it was received. Wertz V. -Railroad. 11 O. D. 804, 30 Bull. 280. (f) And the affidavits of jurors may be admitted when a foundation is laid therefor. So where, on a motion for a new trial, other testimony is given tending to show that the jurors in their retirement had a newspaper containing a part of the 515 JUDICIAL WRITINGS § 411 charge, affidavits of jurors may be received to sliow \vhat the paper was, if their possession and use of it do not involve a charge of improper motives on the part of the jurors. Farrer v. State, 2* 0. S. 54. (g) TVhere a juror in a criminal case makes no statement with respect to the matter on trial until the jury retires, and then makes to his fellow-jurors a statement of matters alleged to be within his own knowledge, contradicting in an impor- tant particular the testimony of one of the defendant's wit- nesses, and the defendant is convicted, ground is atforded by such misconduct for a new trial Avhere the fact is properly made to appear; but the affidavits of jurors Avill not b.e re- garded for the purpose of setting aside tlie verdict until mis- conduct of the jury is shown aliunde. Kent V. state, 42 0. S. 42fi. (h) Since affidavits of jurors can not be received to im- peach their verdict without other evidence aliunde, the affi- davit of an attorney setting up what a juror told him can not be admitted, as it does not constitute a showing aliunde. Misconduct on the part of a jury can not be based on the unsupported afSdavit of one who obtained his information from a member of the jury. Parker v. Blackwelder, 7 C. C. 140, 3 C. T>. 700. Andrews v. State, 1.5 C. C. (X.S.) 241, 23 C. D. 564. 411. RECORDS OF WILLS. (a) A copy of a recorded will, with a copy of the order of probate annexed thereto, certified by the judge of probate under seal of his court, will be as effectual in all cases as the original would be. if produced and establlslied by proof. In fact, the original without the record of probate Avould not be evidence in a case involving land, but is admissible to show error in the record of the will. See Section 10520, General Code. See also Sections 10530, 10535, 10536, General Code. Anderson v. Kvans, 3 W. L. M. 371, 2 O. I). 11. .502. Wolf V. Menawr, 14 0. D. 128. §412 METZLER'S OHIO TRIAL EVIDENCE 516 (b) A copy of the probate and record of a will duly certified by the probate judge is conclusive evidence of the validity of the will on the trial of a collateral issue between a stranger and a devisee respecting the ^property devised ; and it is admissible as evidence although a proceeding to con- test it is pending at the time. Brown v. Burdick, 25 0. S. 260. (c) When a copy of a foreign will is admitted to record in this state, and a copy of such record is recorded in another county, the latter record is competent evidence in an action commenced before the record was made to recover property devised by the will. Carpenter v. Denoon, 21) O. S. .370. tSee Section 10335, General Code. (d) If an authenticated copy of the record of a will shows that the will Avas executed and proved according to the laws of another state, evidence contradicting the record should not be admitted. The record should have the same effect here that it has where made. In the case of a foreign will, if the original can not be produced, an authenticated copy wdll be admitted. Barr v. Closterman, 2 C. C. 387, 1 C. D. 546. See Faber's Estate, 5 O. D. 575, 7 N. P. 561. Section 15330, General Code (R. S. U. S. 905). 412. TRIAL-COURT RECORDS. (a) Where no complete record has been made, the jour- nal and docket entries, and all the files and papers properly connected with a case, are admissible in evidence. And if the original papers are lost, parol evidence may be admitted. Morgan v. Burnet, 18 Oh. 535. Sutcliffe V. State, 18 Oh. 469. Chapman v. Seely, 4 C. D. 395, 8 C. C. 179. Young V. Buckingham, 5 Oh. 485. Barr v. Chapman, 30 Bull. 264, 11 0. D. R. 862. (b) On a trial touching the right to land, decrees in chancery between other parties concerning the same land are admissible in evidence to show the character of possession. 517 JUDICIAL WRITINGS § 412 And that a defendant Avas a licensed tavern-kcepef may be proved by the entry of a license granted to defendant and entered on the journal of the common jileas court. Euckingham v. Hanna. 2 S. 551. Ealdwin v. State, 6 Oli. 15. (c) By virtue of the provisions of section 11^59 of the General Code, a party answering interrogatories annexed to a pleading may introduce his own answers in evidence so far as they are responsive to the questions propounded, and contain competent testimony on the issues joined. Gypsum Co. v. Raihray, 7 0. App. 145, 27 0. C. A. 481, 2". C. D. V.r,. (d) An entrj^ on the appearance docket stating the names of persons accepted as sureties on a bond is admissible if tlio bond is lost. But where a petition in a former case is lost, a summary on the appearance docket Avill be rejected as improper secondary evidence of the contents of the petition. Chapman v. Reely, 4 C. D. 305, 8 C. C. 170. Roberts v. Briscoe, 1 C. C. 577, 1 C. D. 323. (e) And "where a record and a decree of court had been destroyed by fire, an abstract thereof is not competent in any other case without proof of correctness by oi^.e who m.ade or compared it. Irwin V. Scliouorrr. C. D. 815, 10 C. C. 508. See Middleton v. Westeny, 7 C. C. 303, 4 C. I). 050. (f) Where defendant is charged v>ith perjurj', and the .state has proved by records the pendency of the case in which the perjury was committed, and proved the trial of the case by oral evidence without objection, the state lu^ed not offer journal entries to show the trial and the disposition of the case. When an answer contained the false s-i'-earing, and it has been lost, a sworn copy certified by the clerk is ad- missible, •Barnes v. State, 8 C. D. 153, 15 C. C. 14. Silver v. State, 17 0. S. 3(15, 300. (g) Where marriage was proved and Hie presnmplioM ( f a continued marriage relation was relied on, it was proved §413 METZLER'S OHIO TRIAL EVIDENCE 518 in rebuttal that the wife had made admissions that she had procured a divorce. In this there was no error, as the wife had refused to disclose where the record could be obtained. Edgar V. Pvicliardson, .33 0. S. 5S1, 502. Cf. State V. Spring, Tappan, 167. 413. ADJUDICATIONS AS EVIDENCE. (a) As a general rule, an adjudication in one case is not admissible in evidence in another case. In the trial of a guardian for embezzlement, a court's orders and judgment on exceptions to his inventory and accounts as guardian are not admissible. Shelley v. State, 10 C. C. (X.S.) 164. (b) And where two persons are indicted separately for the same arson and one is convicted and judgment passed, the record is not admissible evidence against the other when on trial. Kazer v. State. ."> Oh. '2S0. C(. King V. xXew London. S N. P. vN.S.) 34, 10 0. D. 411. Cf. Evans v. State, 2t O. S. 458. (c) On a criminal trial for failure to support an illegiti- mate child, the record of a bastardy proceeding wherein the defendant was adjudged its reputed father is not competent evidence, as a preponderance is sufficient in such a proceeding. Gee V. State, 60 0. S. 48.'i. Cf. Lanman v. Piatt, 2 W. L. J. 426, 1 0. D. R. 135. (d) The tender of a plea of guilty of assault and battery by the accused upon arraignment under an indictment charg- ing shooting with intent to wound and shooting with intent to kill, which tender is rejected by the state, is not a proper subject of record on the journal of the court. And an entry on the journal reciting the tender of such a plea and its re- jection by the state is inadmissible in evidence upon the trial of the accused under the indictment. Canter v. State, 00 0. S. 1. (e) But a plea of guilty in a criminal case is admissible in a civil action for damages for the same offense. But neither 519 JUDICIAL WRITINGS §414: the plea nor tlie judp^ment fouudcd iipon it is conclusive in the civil action. Clark V. Irwin, Oh. 131. Heeney v. Kilbane, 5!) O S. 499. Mihalovitch v. Bartlett, 12 C. C. (N.S.) 160. (f) In an action for damages for assault and battery, the docket of the justice before whom the prosecution there- for was had, showing the affidavit and the plea of guilty, will be admitted, not as absolute proof of guilt, but only as evidence subject to explanation. Hendricks v. Fowler, 9 C. D. 200, 16 C. C. 597. (g) Where a plea of guilty is offered in evidence in a civil action, the affidavit or a copy thereof should be offered and shown that it was read to defendant and that he entered a plea of guilty. It is error to permit the magistrate to testify to the plea without showing the charge if the affidavit or a copy can be produced. Heeney v Kilbane, 59 0. S. 499. (h) And on an issue of insanity as a defense to crime, an adjudication of insanity by the probate court four years be- fore trial is admissible. The adjudication determines the status; and such an inquest is analogous to proceedings in rem. ^^^leelpr V. state, 34 O. S. 394. 414. OFFICIAL PAPERS. (a) Original executions are received as evidence of their contents; but they must be shown to be originals. Papers in another case in anotlicr court do not prove themselves. Ex- emplified copies under seal are also admissible. Bank v. White. Wright, 51, 52. Iluglies V. Lohaii, 1 C. C. 9, 1 C. 1). 5. (b) An official return duly made upon jn-ocess by a sworn officer in relation to facts which it is his legal duty to state in it, is, as between the j^arties and ])iivies to tlie suit, con- elusive of tlie facts therein stated until set aside l)y due jirocess of law: but as to all otlier ])ersons, sui-li i-ctuni is §415 METZLER'S OHIO TRIAL EVIDENCE 520 prima facie evidence of such facts, and is subject to be dis- proved whenever it is offered in evidence. Phillips V. Ehvcll, 14 0. S. 240. Root V. Railroad, 4.-) O. S. 222. 231. See also Clafflin Co. v. Evans, .55 O. S. 183. Kalb V. Wise, 5 N. P. 5, 5 0. D. 533. (c) A notice of sale may be proved by the production of a newspaper containing an advertisement of the notice, ac- companied by proof of publication for the required length of time. And a notice of attachment may be proved in the same M'ay. Thevenin v. Slocum, 16 Oh. 519. Parker v. Miller, i) Oh. 108, 114. (d) But the clerk of a court has no authority to certify under seal an^' matter not of record nor on file; such facts, though connected with his official duties, must be proved as other facts are proved. Bank v. White, Wright, 51. 415. RECORDS AND PAPERS OF JUSTICE. (a) A transcript of the docket of a justice is competent evidence of the proceedings in a justice court; but it is not competent evidence of facts not required by statute to be entered on the docket. An entry showing the date of the return of the warrant is not competent to prove when the arrest was made. Peney v. fiilliland. Wripht, 3S. White V. Perrine. 1 W. L. J. .307, 1 O. D. R. 58. Armstrong v. State. 21 0. S. 357. (b) "Where a pica of guilty before a justice of the peace is offered in evidence, the affidavit or a copy thereof should be produced if it can bo. The docket of the justice showing the affidavit and tlie plea will be admitted; but the justice should not be permitted to testify to the plea without showing the charge. lleeiiey v. Kilbane, 50 O. S. 400. Hendricks v. FoMler. 9 C. D. 200, Ifi C. C. 597. (c) "Where the written examination taken before the justice in a bastardy proceeding is lost, its contents may be proved by parol, and the complainant is a competent witness for such purpose. Hoff V. Fishor. 2G 0. S. 7. CHAPTER XXIX. THE PAROL EVIDENCE RULE —RULE OF EXCLUSION. 4lG. fieneral principles. 417. Third person.s not affected. 418. Rule as to contracts in general. 419. Rule as to land contracts. 420. Rule as to insurance policie.'i. 421. Rule as to bonds. 422. Rule as to wills. 423. Rule as to commercial paper— Makers. 424. Rule as to commercial paper — Indorsera. 425. Rule as to receipts. 426. Rule as to bills of lading-. 416. GENERAL PRINCIPLES. (a) The general rule is that parol evidence is not ad- missible to varj^ the terms of a written contract. And this rule is the same in equity as at law, unless the equitable powers of the court are invoked upon some ground warrant- ing it in going back of written contracts. Serviss v. Rtockstill, .30 O. S. 41 S. Monnett v. Monnctt, 46 O. S. 30. '' Church V. Pennington, 10 C. D. 74, 18 C. C. 408. Bank v. Ciiandelier Co., 9 C. D. .807, 17 C. C. 443. (b) "Where the words of a written instrument are free from ambiguity, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or as to the subject-matter to which it relates, such instrument is always to be construed according to the strict, plain and common meaning of the words themselves; and extraneous evidence is utterly inadmissible. .Tolmson v. Pierce, 16 O. S. 472, 477. (c) The rule which admits parol evidence of surround- ing circumstances does not authorize the varying of the plain 521 §416 METZLER'S OHIO TRIAL EVIDENCE 522 terms of a Avritton eoiitraet, luiless it be shown that the con- tract was made tlirough mistake, fraud, surprise or accident. Smitt V. Aultnian & Taylor Co.. 2.1 C. C. (X.S.) 5G1, 28 C. D. 4G. Doming V. Tnistoes, 31 0. S. 41, 50. Sinton V. E/ekiel, 8 ,A. L. R. 424, 6 O. D. R. '845. (d) The oral declarations of a party to a written instru- ment, made before or at the time of its execution, of an in- tention or purpose not therein expressed, or |and] different from that to be derived from its terms, are inadmissible in an action on the instrument wiiere its reformation is not sought. Parol evidence is no more admissible to contradict or vary a contract implied from a written instrument than it is to con- tradict or vary its express terms. ■ Tuttle V. Bur!.;ctt. 53 (). S. 4'.)S. ff. Blink V. Cliaiidclie)- ( o.. 17 V. C. 443, 9 C. D. 807. Douglass V. Campbell, 2 C. C. (X.S.) 62, 14 C. D. 241. (e) "What has been stated to be the general rule as to the exclusion of parol evidence may be regarded as an exception to a rule still more general. Witnesses are generally legiti- mate means and instruments of evidence. Oral evidence may be used indifferently as original and independent evidence of a fact, eitlier concurrently Avith, or in opposition to, written evidence, with certain exceptions; and written evidence, how- ever superior it may be, and frequently is, in effect, to mere oral evidence, does not in any case, of its own authority, unaided by an express rule of law, ex- clude such evidence. But when written instruments are appointed, either by the immediate authority of law, or by compact of parties, to 1)e the jiermanent repositories and testimonies of truth, it is a matter both of principle and of policy to exclude any inferior evidence from being used, either as a substitute for such instruments, or to contradict or alter them. Howard v. Thomas, 12 0. S. 201, 205. (f) Where the parties have executed a writing, they have agreed that, in the event of any misunderstanding, the writ- ing shall be referred to as proof of their act and intention, and that thev would not subject themselves to any stipula- 523 THE PAROL EVIDENCE RULE §418 tions beyond their contract; because if the}- meant to be bound by any such, then- miglit have added tlieni to their con- tract. For this reason, a contract is presumed to contain all the stipulations. Howard V. Thomas, 12 0. S. 201, 205. AVestwater v. Pool Co., 12 C. C. (X.S.) 382, 22 C. D. 121. Weller Co. v. Gordon, 14 C. D. 407, 7 C. C. (N.S.) 303, 307. 417. THIRD PERSONS NOT AFFECTED. (a) The rule applies only to controversies between the parties to the instrument and their privies. In a suit between third persons, strangers to the instrument, or between a party to the instrument and a stranger, parol evidence is admissible. Clapp V. Banking Co., oO 0. S. 528. (b) A note signed by two individuals can be proved orally to be their partnership debt by a creditor of one of them, wlio claims a priority in the distribution of the assets of such one. Clapp V. Banking Co., .50 O. S. 528, 540. (c) The foregoing rule does not apply against a person who acts in reliance on the writing and did not know of its parol limitations. Parol evidence should not be admitted when it would be prejudicial to interests already acquired by third persons on the faith of the instrument as it stood. Lumber Co. v. Holler, 84 0. S. 201, 200. Simnion.s v. Pul.lisliing Co., 4 N. P. 89, 6 0. I). 100, 101. See Miller v. Sullivan, 20 0. S. 630. (d) A mortgage duly recorded is not invalid as to third persons from a want of certainty in the description of the debt intended to be secured. As between the parties, parol evidence may be admitted to apply the mortgage to its proper subject-m-atter ; but it can not be permitted that third per- sons who have relied on the record should be misled or deceived. Hurd V. Robinson, 11 O. S. 232. 418. RULE AS TO CONTRACTS IN GENERAL. (a) Whenever a right is vested, or created, or extinguished by contract or otherwise, and writing is employed for that ^418 METZLER'S OHIO TRIAL EVIDENCE 524 jiurpose, parol evidence is not admissible to alter or contra- dict the legal and common-sense construction of the instru- ment. Therefore, a written instrument, in so far as it trans- fers a right or is intended to be evidence of a right, can not be contradicted by extrinsic facts. Shehy v. Cunningham, SI 0. S. 280. 203. (b) In an action based upon a written contract, it is in- competent for the parties to testify as to what was their understanding of it. especially so when the testimony would clearly contradict the plain terms of the contract. Van Arsdale v. Bl-OAvn, IS C. C. .'2, 9 C. D. 488. Denton v. Whitney, 31 0. S. SO. (c) In an action on a written contract which provides that it covers all agreements and understandings, either ver- bal or written, evidence tending to show a verbal warranty made by an agent before the signing of the contract will not be admitted. Weber v. Lamp Co., 20 C. C. (X.S.) 270. (d) Parol evidence is not admi.ssible to add an express warranty to a written contract of sale, which is complete without it. But this does not exclude an implied warranty. Hauser v. Curran, 8 O. D. 405, 5 X. P. 224. (e) A contract for goods was contained in several letters, one of which stated the time for shipment, and it was held that parol evidence could not be admitted to show that a different time for shipment was agreed upon orally. Box Co. V. Paper Co., 4 C. C. (X.S.) 17, 10 C. D. 27. (f) In a suit on a written contract for the stipulated price for an exclusive patent right in certain territory, the seller, who had but a limited title, can not show by parol that the buyer understood the extent of the title and contracted in reference to it. Edwards v. Richards, W^right, 596. ig) Where a contract to sell glass specifies the grade, the seller can not show how he made his glass and that the buyer 525 THE PAROL EVIDENCE RULE §419 knew it, and knew that his glass of this grade was not of the same quality as other glass. Tillyer v. Glass Co., 13 C. C 90, 7 C. D. 20!), 214. (h) "Where a settlement of ciaims for rent was made hy the lessee giving the lessor a note and a conveyance, and the terms of the settlement were evidenced by a contract in Avrit- ing. and an action was brought on the note, evidence of a parol agreement made at the same time will not be admitted. Fibre Co. v. Steel Co., 22 C. C. (X.R.) o21. (i) "When the authority conferred on an agent is by an instrument in writing and is special, parol evidence is inad- missible to vary its terms. And authority to contract debts may not be contradicted by evidence of a contemporaneous oral agreement that the signers should not be liable, where it was not communicated to plaintiff who extended credit in reliance upon the writing. Pollock V. Cohen, 32 0. S. 514. Bank v. Iron Co., 13 X. 1'. (X.S.) 27, 22 O. D. 633. Lumber Co. v. Heller, 84 0. S. 201. 419. RULE AS TO LAND CONTRACTS. (a) A deed can not be varied by parol in so far as it is intended to pass a right. The consideration clause of a deed can not be contradicted so as to affect in any way the pur- pose of the deed, that is, its operation as a conveyance. Sbehv V. Cnnnincjbam, 81 O. R. 280, 203. 'c (b) AYhere the consideration expressed in a deed is a valuable one, the title comes by purchase ; and it is not com- petent to show by parol that in fact the title came by deed of gift, and there'by change the line of descent. Groves v. Groves, fi-l 0. R. 442. Ossnian v. Sclimitz, 14 C. D. 709, 4 C. C. (N.S.) 502. Kerr v. Paul, 37 Bull. 171. (c) Parol evidence to show that the consideration was: not money and that the deed was a gift, is incompotent be- cause the effect would be to contradict tlio deed as to the kind of consideration therein recited, and would defeat the § 419 METZLCR'S OHIO TRIAL CYIDENCE 526 statute of frauds by making a title to real estate to rest in parol. Williams v. Williams, ;5 W. L. M. 2.18, 2 0. 1). Fv. 478. (d) Where a father paid the purchase price of land and had the deed, which stated a valuable consideration, made by the seller directly to a daughter as a gift, it was held that the consideration clause of the deed could not be varied by parol so as to change the operation and effect of the deed. Patterson v. Lamson, 45 O. S. 77. See Nave v. Marshall, 0. D. 415, 6 X. P. 488. (e) But a consideration different from the one recited in a deed, or a consideration in addition to that recited, may be shown by parol if it does not contradict the deed. Steele v. Worthinston, 2 Oh. 182. Vail V. McMillan, 17 0. S. 617. Swisher v. Swisher, Wright, 755. See Section 428 herein. (f) Parol evidence is not admissible to show that, at the time of the delivery of a warranty deed regular in form, the grantor reserved the right of possession for a time or a right to cut trees. Jones V. Timmons, 21 O. S. 506. Cessna v. Breen, 22 Bull. 278. (g) Where a tenant signed a written lease on considera- tion of the landlord's oral promise to repair the roof, and sued the landlord for breach of this contract, it was held that such promise could not be proved. Howard v. Thomas, 12 0. S. 201. (h) An oral agreement made at or before executing a lease that at the end of the year a rebate should be allowed from the rent, can not be shown. Strong V. Schmidt, 7 C. D. 233, 13 C. C. 302. (i) In an action for commission by a real estate agent under a written contract broad enough to cover any sale, parol evidence is inadmissible to show a contemporaneous agreement to except a sale to a certain prospective purchaser. Smith V. Geis, 13 C. C. (N.S.) 336, 22 C. D. 666. 527 THE PAROL EVIDENCE RULE §421 420. RULE AS TO INSURANCE POLICIES. . (a) A policy of insurance, like any other written con- tract, must be construed by its own terms. Statements made by the agent who solicited a policy, prior to and contempo- raneous with the issue of the policy, are inadmissible to vary its terms in any respect. In the absence of proof of fraud or mistake, such statements are merged in the instrument. Insurance Co. v. Hook, 62 O. S. 256. Richards v. Hale, 1 C. C. (N.S.) 181, 14 C. D. 468. Walrath v. Insurance Co., 9 C. D. 233, 16 C. C 413. (b) In an action on a policy requiring modifications or notices to be in writing, parol evidence of conversations be- tween the parties on any such subject wHl be excluded. But in a case framed to correct an omission on the ground of fraud or mistake, such evidence is admissible. Insurance Co. v. Fellowes, 1 Dis. 217, 12 0. D. R. 584. Insurance Co. v. Hook, 62 O. S. 256. Hammel v. Insurance Co., 4 C. C. (N.S.) 380, 14 C. D. 101. 421. RULE AS TO BONDS. (a) The contract of a surety on u bond is within the statute of frauds and is to be strictly construed ; and no parol evidence is admissible to add to, vary or contradict it in any of its terms. Williamson v. Hall, 1 O. R. 100. Myers v. Parker, 6 O. S. 501. (b) When an executor's bond uescribed the testator by an incorrect name, parol evidence to make the bond appli- cable to the estate of the testator in his correct name was excluded. McGovnoy v. State, 20 Oli. 03. (c) But a misrecital in an 'i. junction l)ond as to the amount of a judgment enjoined may be corrected where tbc bond contains a plain reference to the judgment. That is certain which can be made certain. Williamson v. Hall, 1 O. S. 100. See State v. Wallahati, Tappan, 4!^. §422 METZLER'S OHIO TRIAL EVIDENCE 528 (d) And .a bond which by mistake fails to express the actual agreement and intention of the parties, such as a mis- take in a name, may be reformed upon parol evidence like other written instruments. Neininger v. State, 50 0. S. 394. 422. RULE AS TO WILLS. (a) Wills are to be construed from the written language of the instrument ; and parol evidence can not be admitted to contradict or explain the contents of a will. Collins V. Hope, 20 Oh. 402. Painter v. Painter, 18 Oil. 247. Charch v. Cliarch, 57 0. S. 561. (b) In construing a will, grammatical accuracy need not be observed ; and it should be read with a view to the situ- ation and circumstances of the testator, in reference to the subjects of his dispositions, and the objects -of his bounty. With these collateral aids to a correct interpretation, the will must speak for itself, and the intention of the testator be gathered from what appears on its face. To allow its lan- guage to be varied or contradicted, or omissions to be sup- plied, or apparent ambiguities to be removed by parol evidence, would in effect repeal the law requiring it to be in Avriting, and introduce all the uncertainty, fraud and per- jury which the statute was designed to prevent. \Yorman v. Tea.Gfarrlen, 2 0. S. 380. Reinhard v. Reinhard. 3 X. P. (X.S.) 280, 15 0. D. 741. (c) From the familiar rule that a court of equity will not reform a will, it results that when a testator clearly ex- presses the intention that his property shall pass to his chil- dren equally, subject to charges against them in his book of advancements, parol evidence is not competent to show that an advancement charged by him in such book was not made. Younce v. Flory, 77 0. R. 71. Painter v. Painter, 18 Oh. 247. Farmer v. Cope, 37 Bull. 132. (d) Patent ambiguities in a will must be solved by con- struction and not by evidence. Hence, neither the instruc- ^29 THE PAROL EVIDENCE RULE §423 tions of a testator to the scrivener to alter a former will nor its provisions are admissible to explain the provisions of a later will. The instructions to the scrivener as to the testa- tor's intention are wholly incompetent. Clark V. Seminary, 2 C. D. 87, 3 C. C. '['rZ. Zacknian v. Dick, 15 C. C. (N.S.) 593, 24 C. D. 450. See Taylor v. Taylor, 7 K. P. (N.S.) 297, 19 0. D. 829. (e) Declarations of a testator can not be given in evi- dence to show an intention on his part to devise certain real estate to particular persons; nor declarations that he had given certain notes to his wife, even though the notes are transferred to her ''in case of death," and the will alludes to gifts to her. Taylor v. Bogjrs, 20 0. S. 516. Hull V. Hull, 9 C. D. 19, 16 C. C. 688. Hadlow V. Beavis, 42 Bull. 256, (f) Declarations as to testamentary intentions by a testa- tor in advanced age and in a feeble condition, made during the last sickness and shortly after the execution of the will, are admissible to show the mental condition of the testator at the time the will was executed, but not to show an inten- tion other than that expressed in the will. Kuhl V. Reicliert, 2 C. C. (X.S.) 42, lo C. D. 693. 423. RULE AS TO COMMERCIAL PAPER— MAKERS. (a) Parol evidence is not admissible to contradict the terms of a note or to attach to it parol conditions. And where an agent acting within the scope of his agency signs a note as agent only, no principal being named, parol evi- dence is not admissible to sbow that he did not intend to make himself lia])]e, even though the payee knew of the agency.. Holzworth V. Kocli. 26 O. S. ?,?,. Collins V. Insurance Co., 17 O. S. 215. See Section 8125, General Code. Cf. In re Trust Co., 1 O. App. 409, 17 C. C. (N.S.) 324, 24 C. I). 381. (b) Where a married woman exociiles lict- note for prop- erty purchased, she will not be permitted to tcsfify that she §423 METZLER'S OHIO TRIAL EVIDENCE 530 had no intention to charge her separate estate, for that would be contradicting the note. Avery v. Vansickle, Sfj 0. S. 270, 276. Cf. Corwin v. Cook, 8 Bull. 4, 12 Bull. 157. (c) Where no fraud or mistake in the execution of a note is averred by the makers, they will not be permitted to set up an intention on their part not to bind themselves indi- vidually, but only in their re[)resentative capacity, when such intention is different from the legal import of the writing on its face. Titus V. Kyle, 10 0. R. 444. Banking Co. v. Gas Co., 1!) C. C. (N.S.) 151. Cf. Aungst V. Creque, 72 O. S. 5.51. (d) A partner sold his interest to a third person, receiv- ing his co-partner's iu)te in payment; and it was held that the maker could not show an oral agreement that the buyer who had not signed the note was alone liable on it. Lillie V. Batos, 3 C. C. 04, 2 C. J). .54. (e) Parol evidence is not admissible to show that at the time of taking a promissory note by a bank for the payment of a loan secured by sureties, the cashier agreed that he would secuie certain bonds as collateral for the i)ayment of the note, and tluit the liability of the sureties should be sub- ordinate to such collateral. Martin v. Bank, 11 C. C. (X.S ) 0.3, 20 C. T>. .30R. (f) But where a note has been given the wrong date, parol evidence is admissible to show the true date. And the same rule would api)ly in a suit for reformation of a note which incorrectly states the (bites when payments are due. However, if an inspection of the note estal)lishes the mistake clearly, no other evidence would be needed. Jessup V. Dennison, 2 Dis. 150, l.T O. D B. 03. Keep V. Lyman, C. V. (N.S.) 113, 17 C. D. 2!t3. (g) The legal effect of accepting or of drawing a bill of exchange can not be varied by parol. To this rule, usage has 531 THE PAROL EVIDENCE RULE §424 established an apparent exception in the instances where a bill is drawn or accepted by the cashier of a bank. Robinson v. Bank, 44 0. S. 441, 448. Cunimings v. Kent, 44 O. S. 92. Bamhisfel v. Bank, 7 C. D. 533, 14 C. C. 124. (h) Parol evidence is not admissible to show that a draft was merely drawn to assign a claim of the drawer against the drawee ; for a bill imports a contract that it will be paid or the drawer will pay it after demand and notice. Cummings v. Kent, 44 0. S. 92. 424. RULE AS TO COMMERCIAL PAPER— INDORSERS. (a) The legal effect of an indorsement in blank (in this ease a note) when made for value in the usual course of busi- ness for the purpose of transferring the paper or giving it credit, can not be varied by parol. But such indorsement may be reformed if the proof is clear and convincing. Farr v. Bicker, 40 0. S. 205. Contra, Bailey v. Stonenian, 41 O. S. 148. (b) When a note is made payable to a person as agent and is indorsed in the same way, he can not be heard to ex- plain that the indorsee knew of the agency and the name of the principal. (As to officers of banks and corporations, see Sec. 8147 of the General Code.) Barnhisol v. Bank. 7 C. D. 5.33, 14 C. C. 124. (c) Where a note with security was transferred and the note was indorsed waiving protest, a parol agreement to look to the security can not be shown as against his indorse- ment. Rhanl v. ^fcCauley, 34 Bull. 278. (d) But parol evidence is admissible to prove that the indorser, as between himself and the indorsee, waived demand and notice at the time of indorsing a note in blank. Such waiver may also be shown by the circumstances. Dye V. Scott, 35 O. R. 104. Ifudson V. Wolcott, 30 O. S. 018. See McManifzal v. Brown. 45 O. S. 409. Hays V. May, \Vrij,Mit, 80. §425 METZLER'S OHIO TRIAL EVIDENCE 532 (e) Thougli a party maj^ in some cases show by parol that he was not to be held upon his indorsement, still his simple understanding of the matter is not admissible. The understanding of one party can not affect the other. Bassenhorst v. ^Mlby, 45 O. S. 333, 336. (f) A guarantor of payment can not show by parol an understanding that he should be liable only as guarantor of collectibility. Neil V. Trustees, 31 0. S. 15. 425. RULE AS TO RECEIPTS. (a) A receipt for property or money may be explained by parol evidence. The transaction attending a settlement when a receipt in full was given may be shown ; and if there was a mistake in the amount, the receipt is not conclusive. Stone V. Vance, G Oli. 24G. Babcock V. May, 4 Oh. 334, 346. Emrie v. Gilbert, Wright, 7G4. (b) A receipt in full is conclusive if given with a knowl- edge of all the circumstances, and when the signer can not complain that there was any mistake, misrepresentation, • fraud or undue influence to render it invalid. Hirsch v. TTamilton Co., 12 0. D. 670. Emrie v. Gilbert, Wrif^Iit, 7G4. See Bird v. Iliieston, 10 0. S. 4 IS, 430. Miller v. Sullivan, 2G O. S. 639. (c) A paper purporting to be a receipt, but containing a complete contract between the parties to it, can not be ex- plained by parol evidence unless it is ambiguous. Stone V. Vnneo. G Oh. 24 G. Bird V. lIiK'^ton, 10 O. S. 4 IS. 430. Wilson V. Bailey, 1 Handy, 177, 12 O. 1). B. 88. Cf. Bethel v. Woodwortli, 11 0. S. 393. (d) On settlement of all royalties under a lease, the par- ties signed a writing, which was a contract as well as a re- ceipt ; and it was held that it could not be shown that certain matters relating to royalties were not settled, for the writing in so far as it was a contract could not be varied by parol. Seeman v. Mining Co.. 12 C. D. 206. 22 C. C. 311. Coal Co. V. Sunday Creek Co., 12 N. P. (N.S.) 641. 533 THE PAROL EVIDENCE RULE §425 (e) An employe entered into a writint? releasing his em- ployer from a claim for an injury, and it was held that, in the absence of fraud and mistake, the employe could not show that he signed such release upon a collateral promise of per- manent employment at certain wages. r.looni V. Brownell, 12 0. D. 87. See Huntington v. Railway, 8 0. L. R. 531. (f) A writing which acknowledges payment in full with cash and notes, is not a mere receipt ; and it is not proper to admit testimony as to a separate agreement, whereby the creditor was to have the right, if the notes were not paid, to surrender them and proceed on his original claim. Fitch V. Gottschalk, 6 C. C. (N.S.) 239, IS C. D. 811. (g) A writing stated, "I have this day settled with E, and he has paid me all he ow^ed me up to this date, and I have no claims or demands against him of any kind." This is not a mere receipt, but contains an agreement that the parties have come to a settlement in full and agreed npon the balance. And evidence to prove that certain matters of account w^ere not included is not admissible. Jackson v. Ely, 57 O. S. 450. Seeman v. Mining Co., 22 C. C. 311, 12 C. D. 206. (h) A writing which is a release of all interest in an estate and an agreement not to contest the will is a contract ; and it can not be contradicted by parol evidence that the consideration is not correctly stated in the contract. Cassilly v. Cassilly, 57 0. S. 582. Cf. Wales V. Bates, 3 W. L. J. 263, 1 O. D. R. 180. (i) A release can not be contradicted or explained by parol evidence because it extinguishes a pre-existing right. But no receipt can have the effect of destroying, per se, any subsisting right. It is only evidence of a fact. The payment of the money discharges or extinguishes the debt ; a receipt for the payment does not pay the debt, it is only evidence that it has been paid. Not so of a written release ; it is not only evi- dence of the extinguishment, but is the extinguisher itself. Shehy v. Cunningham, 81 S. 280, 204. §426 METZLER'S OHIO TRIAL EVIDENCE 534 426. RULE AS TO BILLS OF LADING. (a) Parol evidence is not admissible to prove a contract to freight different from that expressed in the bill of lading. An nnderstanding varying the provisions of the bill is not admissible. BalKook V. May, 4 Oh. 334. Lawri'iicc v. McGregor, Wriglit, 103. (b) A bill of lading must be interpreted and its meaning gathered from the instrument itself without resort to any parol evidence, unless some of its terms have, by the usages and course of trade, acquired a particular signitication. \Yayno v. T1)o Gon'l Piko. 10 Oli. 422. 42."). (c)" If the meaning of the contract in a bill of lading is that the goods shall be carried by boat by the most direct route, a parol agreement that the vessel could touch at a place out of the regular course may not be shown. Babcock V. May, 4 Oh. 334. (d) In the absence of fraud and mistake, a bill of lading signed by the receiving agent of a carrier, containing no re- striction upon its common-law liability, delivered to the con- signor contemporaneously with the receipt of the goods and acquiesced in by him, becT)mes the contract of shipment whether signed by consignor or not, and its terms can not be contradicted by parol. Railway v. LaTourotto. 2 C. C. 270. 1 C. D. 4R6. Stevens V. Railway. 20 C. C. 41, 11 C. I). 168. Railroad v. Pontius, 10 O. S. 221. (e) But a bill of lading is a contract including a receipt; and in so far as it is a receipt as well as in its recital of fact, it may be contradicted by parol evidence. Page V. Eailroad, 4 W. L. M. 644, 2 0. D. R. 716. Dean v. King, 22 O. S. 118. Jkit see Section 8093-22, General Code. (f) A statement in a bill of lading that the goods were received in good order may be contradicted, and the goods shown to have been damaged before delivery to the carrier. Wood V. Perry. Wright. 240. But see Section 8003-22, General Code. 535 THE PAROL EVIDENCE RULE §426 (g) All agent of boat owners has no authority to issue bills of lading for freight not on board; and the owners are not bound thereby, nor are they estopped by such careless- ness to show the facts, even though the shipper was misled. Dean v. Kinp. 22 O. S. llS. But sfc b^octiou i^!t'.i;{ 22, Ci'iicral Code. (h) But after signing a bill of lading, a common carrier can not relieve himself from liability on the ground that the goods were never received by liim, except by the clearest proof. Railroad v. Dodds, 1 C. S. C. "R. 47. 13 O. D. V.. 407. But si'e Section 81MI3-22, Genera! (ode. (i) If the goods were never shipped, but were listed in the bill of lading fraudulently after it had been signed by an agejit of the carrier, it is a nullity; and such facts may be proved in defense. Adams v. Brirr Pilgrim, 10 W. L. J. 141, 1 O. D. Tt. 477. (j) The question whether the consignor and vendor re- served the jus disponendi is one of intention to be gathered from all the facts and circumstances of the transaction; the terms of the bill are to be taken as admissions of the con- signor and are entitled to great weight, but are not conclu- sive. Emory v. Bank. 2.5 0. S. 3fiO. (k) A bill of lading is as to the consignee a mere ad- mission or declaration of the consignor as to his purpose in shipi)ing and is not a contract; such admission may therefore be rebutted by the circumstances of the transaction, Emery v. Bank, 25 0. S. 360, 366. CHAPTER XXX THE PAROL EVIDENCE RULE— EXCEPTIONS. 427. Introductory. 428. Consideration in deeds. 429. Coni^ideration in notes. 430. E.xpress parol trusts. 431. Implied trusts. 432. Fraud and mistake. 433. Conditional delivery. 434. Subsequent contract. 435 Incomplete writing — Contracts in general. 436. Incomplete wiitiiig — Transfers. 437. Incomplete writing— .Suretyship. 438 Custom — General rule. 439. Custom and the law. 440. Notoriety of custom. 441. Usages of trade. 442. Custom — Expert witnesses. 443. Custom — Practice. 444. Ambiguity. 445. Surrounding circumstances — Contracts. 446. Surrounding circumstances — duaranties. 447. Surrounding circumstances— Wills. 44S. Surrounding circumstances — Deeds. 449. Construction by parties. 450. Identification of parties. 451. Relation of jiarties. 452. Subject-matter — General rule. 453. Subject-matter — Contracts in general. 454. Subject-matter— Wills 455. Subject-matter — Insurance policies. 456. Subject-matter — Land contracts. 457. Subject-matter — The debt. 427. INTRODUCTORY. (a) The exceptions to the general rule stated in the pre- ceding chapter .show that the rule is not without exceptions. The principal exceptions may be briefly stated as follows: Oral or extrinsic evidence is admissible to show the existence of 536 537 THE PAROL EVIDENCE RULE §428 fraud, duress, illoprality, mistake, or want of capacity; to show the existence of a separate agfreemeiit, Avhen the writing is not complete; to prove a condition precedent to the attaching of the instrument ; and to prove a subsequent enforceable agreement to rescind or modify. In the construction of con- tracts, oral evidence is admissible to rebut a disputable pre- sumjition ; to show what things are customarily treated as incidental to the principal thing, that is. custom and usage; to aid the court in discovering intention in case of latent ambiguity; and to inform the court as to the parties and the condition of the subject-matter. 428. CONSIDERATION IN DEEDS. (a) Tn beginning the examination of the cases on the sub- ject of consideration, it will add to clearness to call attention to the fact that this subject of consideration is not what is ordinarily called an exception to the general rule; it is, how- ever, as important as any of the exceptions and shows the limits of the general rule, which, for jiresent purposes, may be stated briefly as follows: A written instrument, in so far as it transfers a right or is intended to be evidence of a right, can not be contradicted by extraneous facts. (b) In stating the general rule as to a deed, it may be said that a party is not permitted to contradict his deed in so far as it is intended to pass a right or to be the evidence of a con- tract. This rule prevents the nse of parol evidence to change a deed of purchase to a deed of gift. Sholiy V. CunninprTiam. PI 0. S. 289, 203. (c) But a deed is not conclusive evidence of everything it contains. When the consideration clause in a deed comes in question collaterally and not for any purpose of affecting the deed as a conveyance, parol evidence is admissible. Shehy v. Cunniii<,'bam, 81 0. S. 2Sn. -in.-). See Williams v. Williams, 3 W. L. M. 2.58, 2 0. D. R. 478. See Section 410(o) herein. (d) In an action for the distribution of a decedent's estate coming by inheritance, parol evidence is admissible to show that a deed which upon its face . expresses a valuable §428 METZLER'S OHIO TRIAL EVIDENCE 538 consideration was in fact a gift for natural love and affection as an advancement. Slieliy V. Cunninfrham, 10 C. C. (N.S.) 311, 20 C. T). 212. Slieliy V. Cunningliam, 81 0. S. 280. Sec Parsons v. l*ar.sons, 52 0. S. 470. Williams V. Williams, 3 \V. L. M. 258, 2 0. 1). R. 478. (e) A deed reciting a pecuniary consideration may be shown by parol to be one of several partition deeds without other consideration than the mutual releases. The line of descent is not broken by partition of an estate ; and the title of a parcener in his share is the same as it had been as an undivided interest. Carter v. Day. .^0 O. ?;. nfi. (f) Where a father made a deed to his absent daughter and placed it on record, the question arose after her death vi'hether she had accepted the deed; and as bearing on that question, the court admitted evidence to show that the deed was a gift, notwithstanding the consideration expressed was valuable. :Mitchen V. Eyan. 3 O. S. 377. (g) Where grantee's deed which recited a valuable con- sideration w'as offered in evidence against him to show what he paid for land, it was held that grantee might offer evi- dence that the true consideration was love and affection. The land conveyed by the deed was not in controversy. Harrison v. Castner, 11 O. S. 330. (h) As a rule a deed does not execute any of the stipu- lations of the vendee as to the consideration to be paid for property. The obligation to pay purchase money is not merged into the deed. The covenant to convey is performed by the conveyance ; but the covenants relating to other things are not thus performed. Brumbaugh v. Chapman, 45 0. S. 368, 375. (i) A written agreement for the sale of land is not merged into the deed as to the promise of vendee in regard to the consideration, even when it provides that he has as- 539 THE PAROL EVIDENCE RULE §428 sumed to pay an existing lien as a part of the purchase money. Such written agreement is competent evidence, and if it is lost, its terms may be proved by parol. Conklin v. Hancock. 67 0. S. 455. Reid V. Sycks. 27 O. S. 285. (j) But in a case where the agreement to pay off the incumbrance was verbal, it was held that it could not be shown, as that Avould contradict the covenant. Hott V. :\rcDonoiigh. 3 C. C. 177, 2 C. T). 100. See honcard.sley, 16 Oh. 438. (n) And where a nominal consideration is stated in a deed passing property from debtor to creditor, it is not eon- §429 METZLER'S OHIO TRIAL EVIDENCE 540 elusive in an action to set aside the deed on the ground of fraud ; and parol evidence is admissible to show other con- siderations. The same rule applies to a bill of sale. Cole V. Bank, 15 C. C. (N.S.) 315, 344. Grote V. Meyer, 9 A. L. R. 623, 6 O. D. R. 1025. Hicks V. Cubbon, 2 A. L. R. 121, 4 O. D. R. 408. Contra, 14 Bull. 167, 32 Bull. 100. (o) The conclusion is that the consideration clause in a deed of conveyance is conclusive for the purpose of giving effect to the operative words of the deed, but for every other purpose it is open to explanation by parol proof, and is prima facie evidence only of the amount, kind and receipt of the consideration. Shehy v. Cunningham, 81 0. S. 289. 429. CONSIDERATION IN NOTES. (a) Parol evidence is admissible to show the considera- tion of a note ; and, as against one not a bona tide holder, to show that the consideration in whole 'or in part has failed. Holzworth V. Koch, 26 0. S. 33. Hyde v. Bank, 32 Bull. 217. Chaffee v. Garrett, 6 Oh. 421. (b) Where A executed a note to B which was to be assigned to C on his paying a sum of money and doing certain work, it was held in a suit on the note by C that A could show his non-performance. Brown v. Willis, 13 Oh. 26. (c) Parol evidence is admissible to show that the con- sideration for a note was an advancement made by the payee to the wife of the maker, and that it was understood that the note was given as a receipt. But the proof must be clear and convincing. Martin v. Scutkler, 14 O. T). 283. Wright V. Merciiant, 5 W. L. M. 194, 2 O. D. R. 742. Medill V. Fitzgerald, 8 C. D. 129, 15 C. C. 415. (d) Where parties to a loan agree upon a rate of interest greater than is allowed by statute, and execute a note for a 541 THE PAROL EVIDENCE RULE §430 rate within the statute, parol evidence is admissible to show the fact ; but the proof must be clear and satisfactory. Insurance Co. v. Shotts, 8 A. L. R. 321, G O. D. R. 813. Boone v. Andrews, ]0 C. C. (X.S.) 377, 20 C. D. 106. Contra, 2 Handy, 94, 3 Bull. 939. (e) It is said that an indorser may show against his in- dorsee or one with notice that his indorsement was without consideration; for this is no more than may be done by a maker, drawer or acceptor under like circumstances. Farr v. Ricker, 4G 0. S. 2G5, 267. (f) Under a general averment of want of consideration, any evidence which tends to impeach or sustain the consider- ation is admissible. But if the evidence offered shows only that there was no benefit to the promisor, and does not exclude the possibility of detriment or loss to the promisee, it is not sufficient. Chamberlain v. Railway, If) O. S. 225. Dalrymple v. Wyker, 60 O. S. 108. 430. EXPRESS PAROL TRUSTS. (a) An express trust engrafted on an absolute deed may be shown by ])arol evidence. But equity requires that the evidence shall clearly and convincingly show that contempo- raneously with the execution of the deed the terms of the trust were declared and the beneficiaries designated. Fleming v. Donolioo, 5 Oli. 2.")."). Russell V. I'.ru.T, 64 (). S. 1. llarvcy v. rjardncr, 41 (). S. 642. 1 .)u;.'lirtian v. Boii^^iuiian, 6!) (). S. 273. Richards v. Parsons, 7 O. App. 422. 29 O. C. A. 3.59. (b) In this state, notwithstanding the statute of frauds, it is competent to establish by parol evidence that a deed of conveyance absolute in form was executed upon the consider- ation that the property conveyed was to be held in trust for the grantor and reconveyed on demand. Mathews v. Leaman, 24 0. S. 615. Ryan v. O'Connor, 41 O. S. 36.S. §430 METZLER'S OHIO TRIAL EVIDENCE 542 (c) Declarations of a grantor made when he transferred land to his sons are admissible to prove that it was in trust for the use and benefit of their wives, but subsequent declara- tions are not. Harvey v. Gardner, 41 (). S. 642. Cf. Paddock v. Adams, .Ifi O. S. 242. (d) When a person purchases property with his own funds and places the title in the name of a stranger, the legal presumption is that he made such purchase for his own use, and that the property is held in trust fo.' him. But the pre- sumption may be rebutted. Creed v. Bank, 1 0. S. 1. Kraig v. Hughes, 11 O. 1). 002, 8 N. P. 680. Duvelnieyer v. Duvelmeyer, 5 K. P. 89, 7 0. Y). 426. (e) But where the conveyance is made by a man to a member of his own family, the presumption is that the prop- erty is intended as a gift or advancement. The presumption may be rebutted; and each case has to be determined from all the facts and circumstances. Creed v. Bank, 1 0. S. 1. Cf. IMiller V. Stokely, 5 0. S. Ifl4. Bernhardt v. Bernhardt, 7 C. C. (N.S.) .-)17, IS C. IX (iStt. (f) A conveyance for a recited valuable consideration to one who is a stranger to grantor may be shown by parol to be voluntary, and a trust will arise unless there is evidence of a gift. But where the deed is absolute and is in consider- ation of natural love .and affection, it is said that a resulting trust can not be shown against it. Bayles v. Grossman, 5 A. L. P. 13, 5 0. D. R. 354. Miller V. Stokely, 5 O. S. 194. (g) The answer of a party in a former suit and signed by him is admissible to prove that a deed is a deed of trust, when the deed and the land conveyed by it are in contro- versy in the case before the court. Broadnip v. Woodman, 27 0. S. m^. (h) Parol evidence is admissible to show that an abso- lute bequest was on the legatee's promise to hold it in trust 543 THE PAROL EVIDENCE RULE § 431 for others; but the proof must be clear, convincing and con- elusive. Vance v. Park, S C. D. 425, 15 C. C. 713. Collins V. Hope, 20 Oli. 403. (i) And the contemporaneous declarations of the testator, that the bequest Avas made for the benefit of a third person upon the promise of the legatee to hold it in trust, are ad- missible ; so also are the subsequent declarations of the legatee. Winder v. Scholey, 83 O. S. 204. (j) A trust in a bank deposit may be proved by parol. Where "B for H" deposited money in a bank, and stated that he desired to make a deposit for his brother, and kept the bank-book in a box to which the brother had access, it was held that B was a trustee of the fund for H. Herrmann v. Bank, 16 N. P. (N.S.) 47. 431. IMPLIED TRUSTS. (a) When a trust arises by operation of law, it may be proved by parol. Where A furnished to B money to be in- vested in land, which is so invested, B taking the title in himself, the title thus acquired is held in trust for A. And upon the death of B, without the execution of the trust, the title Avill descend to his heirs incumbered with the trust estate. Xewton V. Taylor, 32 O. S. 399. Williams V. Van Tiiyl, 2 0. S. 337. (b) An implied or constructive trust may be established from the acts of a party who has obtained money upon the faith of his agreement to buy lands in the name of his wife, and having bought them, takes the title to himself. Newton v. Taylor. 32 O. P. 309. (c) Parol evidence may be introduced to show that land bought in the names of members of a firm was purchased with the funds of the partnership and for its use and owner- ship. Tcare v. fain, 7 C C. 375, 4 C. D. 643. See Rammelsburg v. Mitchell, 29 O. S. 22, 52. §432 METZLER'S OHIO TRIAL EVIDENCE 544 (d) Parol evidence is admissible to show that the grantee of property in fact holds it in trust for charitable uses, but the proof must be conclusive. If the grantee is a Catholic archbishop, the canons and decrees of his church as to church property are competent to show the nature of the trust. Mannix v. Purcell, 46 0. S. 102. (e) A resulting trust arising from the payment of one half of the purchase money may be established by parol evi- dence. Equity wull only recognize a trust as resulting to a contributor of a part of the purchase money when the amount is a definitely ascertainable aliquot part. Byers v. Wackmnn, Ifi R. 440. RcvTiolds V. Morris, 17 O. S. 510. Coolidge V. Sniitli, 5 X. P. (X.S.) 481, 18 O. D. ini. (f) A wife had paid half of the consideration for real estate and had secured the remainder by executing a mort- gage on the property purchased; the deed had been executed to her husband without her consent ; it was held that an equitable estate pro tanto became vested in her by resulting trust. McGovern v. Knox, 21 0. R. 547. {g) In an action for the redemption of land sold for taxes, parol evidence is admissible to show that the legal title, though held by another at the time of the tax sale, was held in trust. Plumb V. Robinson, 13 0. S. 298. 432. FRAUD AND MISTAKE. (a) Prior negotiations are excluded only on the issue of a contract and its terms, and not where the issue is whether money was obtained by fraudulent representations ; to prove which all that took place between the parties may be intro- duced in evidence to explain th(^ conduct of the parties. Home & Dower Ass'n v. Kirk, 9 Bull. 48, 8 0. D. R. 592. Home & Dower Ass'n v. Reams, 7 Bull. 8, 8 O. D. R. 272. (b) In an action to reform a substituted contxact for fraud and mistake, the original writing may be given in evi- 545 THE PAROL EVIDENCE RULE §432 dence, and also the subsequent acts done, or procured to be done, by the party charged with the fraud, and which tend to prove the fraud or mistake. Railroad v. Steinfeld, 42 0. S. 449. (c) Where an insurance policy by mistake names an agent as the insured, evidence of the conversation of the parties in relation to the object of the policy and the interest to be insured is admissible with a view to a reformation of the policy. Insurance Co. v. Boyle, 21 0. S. 119. (d) Parol evidence is admissible that an agent soliciting subscriptions for a railroad falsely stated that he had seen the plans of the road, and that such plans contained culverts and bridges at the farm of defendant, in reliance on which defendant signed an agreement. Freeman v. Mutli, 3 Bull. 014, 7 0. D. R. 555. (e) But one who is negligent in signing a contract or who reposes too much confidence in the promisee and is led to sign without carefully considering its terms, will not be permitted to introduce evidence to vax'y the contract in an action at law. Cassilly v. Cassilly, 57 0. S. 5S2. Church Co. v. Shartel. Iddings. 117. Cf. Baldwin v. Snowden, 11 0. S. 203. (f) "Where a reservation of a power of sale by a mort- gagor is not on the face of a chattel mortgage, but is merely understood and agreed by the parties, the chattel mortgage is fraudulent and void ; and these facts may be shown by parol evidence. The conduct of the parties in relation to the subject- matter of the mortgage may be admitted. Freeman v. Bawson, 5 0. S. 1. (g) Where the description in a mortgage does not em- brace the land intended to be mortgaged, but embraces other land which the mortgagor does not own, parol evidence is competent to establish such mistake. Davenport v. Sovil, O. S. 4.59. §433 METZLER'S OHIO TRIAL EVIDENCE 546 (h) Parol evidence of a mistake in the rtturn of an ap- praisement, and also in the deed whereby a tract of land neither sold nor paid for is included, may be received in a snit to correct the mistake. Gill V. Pelkey, 54 0. S. 348. Stites V. Wiedner, 35 ^0. S. 555. (i) Where a grantee had agreed as part of the considera- tion not to use the property for a saloon, but by mistake and fraud did not execute such agreement when the deed passed, it is provable by parol. Taylor v. Becker, 6 Bull. 25, 8 0. D. K. 151. (j) The presumption being that the contract as reduced to writing embodies the real intention of the parties, courts should not proceed on the ground of mistake without very clear and satisfactory proof of its existence. Davenport v. Sovil. C, O. R. 450. Pitts V. Langdon, 2 0. D. 4Sl. 7 N. P. 304. Heinrichsdorf v. Stengel, 12 N. P. (X.S.) 55, 22 O. D. 667. 433. CONDITIONAL DELIVERY. (a) Parol evidence is admissible in an action between the parties to show that a written instrument, executed and de- livered and absolute on its face, was conditional and was not to take effect until another event should take place. Metzper v. Pxoherts, 5 C. C. (X.S.) 344, 16 C. D. 675, 676. DeHavon v. Coup, 6 A. L. S. 593. 5 0. D. R. 562. (b) In an action to collect rent, evidence is admissible for the purpose of showing that a contemporaneous parol agreement was made at .the time the written lease was ex- ecuted by which the lease was only to be used in organizing a corporation and afterward transferring the same to it, and under no circumstances to be a valid lease between the orig- inal parties. ■ Metz£rer v. Roberts, 5 C. C. (X.S.) 344, 16 C. D. 675. (c) Evidence is admissible that a contract for the sale of real estate was handed over on an oral agreem.ent that it should not be binding until some future step was taken. Hovekamp v. Elshoff. 4 0. D. 171, 3 N. P. 158. 547 THE PAROL EVIDENCE RULE §434 (d) Parol evidence may be admitted, under Section 8121 of the General Code, to show that the delivery of a note was conditional and that the note was not to become operative except upon the happening of a certain event. And the rule is not changed when the note is secured by chattel mortgage. Shive V. Merville, 15 C. C. (X.S.) 535, 24 C. D. 193, 1 0. App. 33. Piano Co. v. Edgar, 12 C. C. (N.S.) 37, 21 C. D. 295. See Heisel v. Heisel, 9 Bull. 110, 8 O. D. R. 653. (e) A note was executed by two officers of a corporation, and handed by them to the agent of the payee to secure the signature of the secretary. It was held that parol evidence was admissible to show that the note was not to be consid- ered as delivered until the signature of the secretary was obtained. Brick Co. v. Foundry, 7 A. L. R. 548, G 0. D. R. 713. (f) But it is not proper to admit evidence of a parol agreement made at the execution and delivery of a note, by which it was to become null and void, unless within a given time the makers were able to realize a given sum of money from the property purchased and for which the note was given. Beecher v. Dunlap, 52 0. S. 64. Cunimings v. Ritter, 33 Bull. 202. Harley v. Weber, 1 C. D. 3G0, 2 C. C. .i7. (g) And a verbal agreement made contemporaneously with the execution of a promissory note that it may be dis- charged in some other way than by the payment of money, while it remains executory, is no defense to an action on the note, but when fully executed it operates as payment or accord and satisfaction. Wettstein v. Bank, 20 C. C. (N.S.) 201. 434. SUBSEQUENT CONTRACT. (a) Subsequent to the execution of a written contract, it is competent for the parties by a new contract, although not in writing, either to abandon, waive or annul the prior con- tract, or vary or qualify the terms of it in any manner. And where the verbal contract only changes or modifies some of the terms of the original contract, it is to be proved by the §434 . METZLER'S OHIO TRIAL EVIDENCE 548 verbal agreement taken in connection with the written con- tract. Thurston v. LiKhvijr, 6 O. S. 1, 5. See Insurance Co. v. Hover, 66 (). S. 344. (b) A \erbal agreement, to be effectual as a waiver, vari- ation, or change in the stipulations of a prior written con- tract between the parties, must rest ujion some new and distinct legal consideration, or must liave been so far exe- cuted or acted upon by the parties that a refusal to carry it out would operate as a fraud upon one of the parties. Tliurston v. Ludvvig, 6 0. S. 1. (c) Where the original contract is in writing as required by the statute of frauds, it may be varied as to the time of payment, or wholly waived or discharged as to such pay- ment by a subsequent parol contract founded on a new con- sideration. Xegley v. Jeffers, 28 0. S. 00, 100. Reed v. McGrew, 5 Oh. 376. (d) Where land has been sold and conveyed and by written contract the grantee is not to pay a balance due until certain incumbrances are removed, and there is made a subsequent verbal agreement between the parties by the terms of which the vendee, for a valuable consideration re- ceived, agreed to waive his right to insist on the performance of such conditions precedent, and agreed to take the property subject to the incumbrances and pay the balance due, is not a contract within the statute of frauds and may be proved by parol. Negley v. Jeffers, 28 0. S. 90. Cf. J\icKenzie v. Biichamann, 5 0. App. 270, 25 C. C. (N.S.) 529, 27 C. D. 303. (e) If the payee of a note enters into a contract with the maker to forbear suit for a given time, in consideration of the payment of a sum of money or the execution of a note for such sum of money, it is a valid agreement; and it may be set up by the maker when an action is brought before expiration of the extended time. McComb V. Kittredge, 14 Oh. 348. Peck V. Beckwith, 10 0. S. 497. 549 THE PAROL EVIDENCE RULE §435 435. INCOMPLETE W R I T I N G— C O N T R A C T S IN GENERAL. (a) The parol evidence rule does not apply where ex- press reference is made to a parol contract in the writing, or where the writing does not purport to be a complete expres- sion of the contract, or evidently appears to express only some part of it, and that which is sought to be proved does not contradict its terms; or the verbal transaction may be a different one, collateral to the one in writing. ]\ronnett v. Monneft, 4f) 0. S. 30, 37. Piatt V. Sciibner. ]8 C. C. 4ryl, !) C. D. 771. ]\Iiller V. Florer, 15 0. S. 148, irv2. Howard v. Thomas, 12 0. S. 201, 20G. (b) Two persons brought an action upon a verbal con- tract, and each had theretofore signed similar written con- tracts, both of which were really collateral to and were not intended to cover the subject of the verbal contract, and it was held that the verbal contract could be proved without violating the parol evidence rule. Bethel v. Woodworth, 11 0. S. 393. (c) Where a petition in an action for breach of contract does not allege a complete written agreement as a basis of the action, but an ambiguous memorandum agreement is at- tached to The petition, it is error to exclude evidence that the parties did agree upon a contract which was fully under- stood between them. Kneipper v. Richards, 7 C. C. (X.S.) 581, 10 C. T). 215. (d) Where a railroad company issues and sells a coupon ticket with coupons attached good over a connecting line, it is competent to prove by parol evidence, aside from the ticket sold, the contract made between the carrier and the passenger, Pennsylvania Co. v. Loftis, 72 0. S. 288. (e) Where oil lands were sold, a reservation of the oil was shown by parol evidence because the dealings of the parties showed that they did not look upon the deed as containing the whole contract. Simmons v. Supply Co., 21 C. C. 4ryr>, 11 CD. 090. §437 METZLER'S OHIO TRIAL EVIDENCE 550 (f) An advertisement of a sale of personalty may be limited by an oral declaration of the vendor made before sale, and the proposal may thus be partly oral and partly Avritten. Iladley v. Importing Co., 13 0. S. 502, 505. 436. INCOMPLETE WRITING— TRANSFERS. (a) Parol evidence is admissible to show that a deed is a mortgage, notwithstanding the deed appears absolute on its face. Any material inadequacy of consideration, the prior pecuniary relations of the parties and other circumstances tending to show their intention and the true character of the transaction will be admitted. Exporting Co. v. Banl<, Wriglit, 240. Slutz V. Desenberg, 28 0. S. 371. 378. See Wilson v. Giddings, 28 0. S. 554. (b) A written assignment of a chose in action, uncon- ditional on its face, in part execution of a contract not in- tended by the parties to be expressed in the assignment, is not conclusive evidence that the transfer was absolute ; but the contract under which it was executed may be shown by other evidence, ■Randall v. Turner, 17 0. S. 262. See Mollenkopf v. Baumgardner, 21 C. C. .501, 11 CD. 655. Baumgardner v. Mollenkopf, 65 O. S. 612. (c) An absolute assignment of a fire insurance policy may be proved by parol evidence to have been given and accepted as collateral security for a debt. Insurance Co. v. Wolf, 11 CD. 815, 21 C C 202. 437. INCOMPLETE WRITING— SURETYSHIP. (a) The contract between principal and surety is not necessarily contained in or evidenced by the contract with the creditor, but may be, and usually is, collateral ; and it may be proved by any competent evidence. JMcKee v. Hamilton, 33 0. S. 7. 551 THE PAROL EVIDENCE RULE §438 (b) lu an action for contribution, and in the absence of any contract in writing fixing such relation and liability be- tween accommodation parties to a note, parol evidence is admissible to show the real nature of the transaction. Oldham v. Broom, 28 0. S. 41. (c) As between accommodation makers of a promissory note, the presumption is that they are co-sureties, and as such liable to each other to contribute ; but this presumption may be rebutted by parol evidence showing that the one last signing did so as the surety for the prior makers, and not as a co-surety Avith the prior surety. Oldham v. Broom. •2S 0. R. 41. Cf. Conett V. Squair, 17 O. D. 65, 3 O. L. R. 558. (d) Declarations of a party claiming to be a surety, made to the principal debtor at the time he executes and delivers the instrument, as to the terms and conditions on which he becomes liable, are, in connection with other testi- mony, admissible as part of the res gestae, tending to show an agreement, express or implied, as to the extent of such liability. Oldham v. Broom, 28 0. S. 41. (e) A draAver of a bill being sued by the payee may show a parol agreement made prior to the bill that he and the paj^ee were joint sureties for another drawer, and that he has paid his half and thus defeat the action. Kelley v. Few, 18 Oh. 441. 438. CUSTOM— GENERAL RULE. (a) Parol evidence of a usage or custom is admissible to annex incidents, as it is termed; that is, to show what things are customarily treated as incidental to tlie ])riiu'ipal thing to which the instrument relates. This evidence is admitted on the principle that the parties did not intend to express in writing the whole of their contract, but only to make it with reference to the known and established customs relating to tlie subject-matter. Baker v. Jordan, 3 O. R. 438, 441. Fester v. Pvohiii.s(ni, G O. S. 90, 97. § 439 METZLER'S OHIO TRIAL EVIDENCE 552 (b) Usage or custom can not create a contract or liability where none otherwise exists. A usage or custom can only be used to explain or aid in the interpretation of a contract or liability existing independently of it. It can not be permitted to contradict or vary the legal import thereof. Tliomas v. Trust Co., 81 0. S. 432. Rubber Co. v. Supply Co., 12 C. C. (N.S.) 24.3, 21 C. D. 557. Tillyer v. Glass Co., 7 C. D. 20i). 13 C. C. Hfl. >:icola V. Box Co.. 13 0. D. 753, 1 N. P. (N.S.) 63. (c) In determining whether the insured has given notice of loss to the company as required by the policy, evidence of a local custom to give notice to the local agent is not ad- missible because it would contradict the policy. Insurance Co. v. Silberman, 24 C. C. (N.S.) 511. (d) And where a policy provides that the assured shall not keep gunpowder or petroleum without permission, and in an action on the policy the insurer relies on a breach of the condition, evidence is not admissible to show a custom among dealers to keep for sale such articles in limited quan- tities. Beer v. Insurance Co., 39 O. S. 100. 439. CUSTOM AND THE LAW. (a) If the law of the case is clear 'and definite, then custom can not be introduced to change the law governing the contract. After any phrase or term (such as f. o. b.) has been repeatedly adjudicated by the courts, it no longer needs explanation. Tillyer v. Gla.ss Co., 13 C. C. 00, 7 C. D. 200, 214. (b) But if some terms of an instrument are technical or foreign, the testimony of persons acquainted with such terms will be admitted. But no custom should set aside the well- defined meaning of common words. James v. Bostwick, Wright. 142. Thompson v. Pruden. C. D. 8j7, IS C. C. 8S6. O'Rourke v. Rapp, 14 N. P. (N.S.) 23, 24 0. D. 528. McDonald v. Page, Wright, 121. 553 THE PAROL EVIDENCE RULE §439 (c) A custom is not admissible eitlier to contradict or alter the legal import of a contract, or to change the title to property contrary to an established rule of law. Chase v. Washburn. 1 0. S. 244. iryl. Inglebriglit v. Haumioiui, 1!) Oh. 337. (d) When the words of a contract are construed in law to be words of condition or description, a custom which con- strues them as importing a warranty will not be recqived in evidence. . Rojiers v. Woodruff, 23 0. S. 632. -"e"- (e) A custom which would relieve a purchaser from the obligations imposed upon him by the doctrine of caveat emptor is contrary to law. A custom of the trade in a city in regard to sales by brokers or commission merchants is not admissible if contrary to law. Tliomas v. Trust Co., 81 0. S. 432. ];nt V. Evans, 1 C. S. C. R. 50!). 13 <). 1). ]{. C'.W. Rolling Mill v. Addy, 6 A. L. R. 764, 5 O. D. R. 588, (f) Evidence of usage of other banks organized under the same law to discount at greater than the legal interest is not admissible to make a transaction valid. No usage can abrogate a statute or change laws relating to negotiable paper. Bank v. Baker, 15 0. S. 68. Dodge V. Bank, 30 O. S. 1. 8. Bowden v. Bank, 12 Bull. 184, 9 0. D. R. 333. (g) A usage which is not according to law can not be set up to control the law, even if it were universal ; such as a usage giving to a miner a right to throw refuse where it would wash down stream on another's land. Coal & Iron Co. v. Tucker, 49, 0. S. 41, 60. (h) The meaning of a measure as fixed by law can not be varied by parol ; thus evidence to explain the value of a dollar is incompetent. And when blocks furnished under a contract are to be paid for by the square yard it can not be shown to mean as laid in the street with strips between the courses, even though the contractor had beoTi informed by §440 METZLER'S OHIO TRIAL EVIDENCE 554 an officer of the city that this had been and -would be the practice. Worth V. Wilson, Wriplit. 102. Maloiic V. Cincinnati, 3 Bull. 57S, 7 O. D. R. 513. (i) But a purchase of a pile of loose rock at so much per cubic yard may be shown by usage to mean a cubic yard as regularly laid in a wall, and that the number of cubic feet in the pile should be divided, not by twenty-seven, but by thirty-three, to ascertain the cubic yards to be paid for. Costello V. Henkol, 30 Bull. 05. Cf. Quarry Co. v. Clements, 38 O. S. 587. (j) And a written contract to lay brick at so much per thousand may be interpreted by a local custom to estimate the number by measurement in the walls on a uniform rule based on the average size of brick, with additions for extra Mork and wastage. Lowe V. Lelmian, 15 0. S. 179. (k) A custom must not be unjust, oppressive or in con- flict with an established rule of public policy. A court will not consider a usage Avhicli is unreasonable in its operation and is contrary to public policy. Thomas v. Trust Co., SI 0. S. 432, 445. Price V. R:n1n);ul, ]:l X. P. (N.S.) Go. Nolte V. Hill, 36 0. S. 186. 440. NOTORIETY OF CUSTOM. (a) It is the general rule that a custom to affect the rights of a ])ers()n must be shoAvn to be long continued with- out interruption, acquiesced in, reasonable and certain, so that the presumption arises that it was known to the parties. But custom as applied to contracts is not an exception to h'^arsay nor of an ancient character. Thomas v. Trust Co., 81 0. S. 432, 445. Oil Co. V. McCrory, 14 C. C. 304, 7 C. D. 34^. Wald V. Bien, 14 N, P. (N.S.) 145, and cases cited. Tillyer v. Glass Co., 7 C. D. 209. 13 C. C. 99. (b) In an action upon a policy of insurance, evidence of a local custom among insurers not communicated to the in- DOO THE PAROL EVIDENCE RULE §441 siircd nor of such notoriety as to afford presumption of knowledge on his part is not admissible. Insurance Co. v. Harmer, 2 0. S. 452. (c) And a practice which is unknown to those generally engaged in the trade can not be sustained as a usage. It can not control the terms of a contract because those making the contract can not be presumed to contract in reference to a thing of which they -were ignorant. The Albatross v. Wayne, 16 Oh. 513, 517. (d) A purchaser of goods residing at Cincinnati is not entitled to the benefit of a custom there Avhich requires the seller to pay the freight, unless it is shown that the seller had knowledge of the custom. Mill Co. V. Hazen, 11 CD. rA, 20 C. C. 2S7. (e) In an action for work and labor, if defendant relies on a usage of his establishment to pay in something else than money, he must prove plaintiff's knowledge of such usage at the time of commencing the work. Lewis V. Gaylord, 1 W. L. J. 487, 1 0. IX- K. 7.1. • (f) But a custom may be so general and universal and so commonly known and acted upon as to shut out the right to plead ignorance of its existence, though only of recent date. Oil Co. V. ]\IcCroiy, 14 C. C. 304. 7 C. T). 344.' Fatman v. Tliomi)son. 2 D:>. 4S2. 13 O. D. R. 2!>.-). (g) If the jurj' find a local usage to have been certain, uniform, and generally aeciuiesced in at the place where the parties to the contract resided and contracted, they may in- terpret the contract by it, although the usage was only of seven years' standing, and was not actually known to the plaintiff. Lowe V. Lehman, 1.") 0. S. 170. 441. USAGES OF TRADE. (a) AVhenever a usage of any particular trade or place is proven to exist, the law implies on the part of those who ^441 METZLER'S OHIO TRIAL EVIDENCE 556 contract upon a matter to Avliicli such custom or usage has reference, a promise in conformity with such usage, provided there is no express stipulation to the contrary. Fatman v. Thompson, 2 Dis. 482, 13 0. T). R. 2f).-). Pullan V. Cochran, 6 Bull. 390, 6 O. D. R. 1070. (b) Where some terms of a bill of lading have, by the course of trade and usage, acquired a particular signification, the persons engaged in such trade will be presumed to have used the terms in that sense. Wayne v. The General Pike, 16 Oh. 421. (c) In an action on an insurance policy, evidence is ad- missible to show the custom of trades. Underwriters are bound to know the usages of the particular trade as to which they contract. Insurance Co. v. Shillito, 1.5 0. S. o-lO, 572. (d) A general usage of the place that a tenant of a farm for a year shall gather the away-going crop will annex such right as an incident to the lease if the lease contains noth- ing to negative it. Foster v. Robinson, 6 0. S. 90. (e) A usage in the sales of a certain kind of tobacco in a city that it is M^arranted to remain sound for four months, or be subject to rebate of price, is valid and becomes part of the contract. Fatman v. Thompson, 2 Dis. 482, 13 0. D. R. 29.'). (f) A contract to deliver ore on the landing at C may be shown by a settled and well-known usage to mean that the quantity is taken from the pile there and put on the buyer's boats, and that no other kind of delivery is per- mitted or practicable. Steel Works v. Dewey, 37 0. S. 242. (g) "Where a contract for the sale of coal in place pro- vides that royalty shall be paid upon all "merchantable coal" mined, parol evidence is admissible to show that in the locality where the coal was mined the phrase meant "lump coak" Coal Co. V. Hughes, 9 C. C. (KS.) 121, 19 C. D. 139. 557 THE PAROL EVIDENCE RULE §443 (h) Parol evidence of a custom among contractors for dredging ship channels as to the burden of expense assumed by sub-contractors, is admissible to explain the surrounding facts and circumstances. Dock Co. V. Smith, 25 C. C. (X.S.) 142. (i) Evidence of a particular custom is sometimes ad- mitted to show that the mode in which a contract has been performed is the one customarily followed by others engaged in the same trade. Coal & Iron Co. v. Tucker, 48 0. S. 41, CO. 442. CUSTOM— EXPERT WITNESSES. (a) Only witnesses who are experienced in the trade can testify to the custom existing in that trade ; and their testi- mony is not to be given as a matter of opinion, but as a matter of fact ; and by a matter of fact is not meant that individual instances can be testified to. Tillyer v. Glass Co., 13 C. C. 99, 7 C. D. 209. See Nolte v. Hill, 2 Bull. S6. 7 O. D. R. 297. Austin V. Williams, 2 Oh. 61. (b) A witness may be asked if he knows of any custom of trade in delivering goods at one place which is different from the usage of other places. The Albatross v. Wayne, 10 Oh. 513. 443. CUSTOM— PRACTICE. (a) A special custom or usage in any particular trade- business or profession in order to be available as a ground of action or defense must be specially pleaded, and must be proved by a preponderance of the evidence. When the usage relates to the meaning of a word, it need not be pleaded. Palmer v. Humiston, 87 0. S. 401. Pullan V. Cochran, fl Bull. 3!10, il O. I). K. 1070. Oil Co. V. McCrory, 14 C. C. 304, 7 C. P. 341. Lowe V. Lehman, 15 0. S. 179. (b) But a usage that might become very injurious in practice should not be allowed to be established without clear and satisfactory proof of its actual existence and general acquiescence by the public. Wayne v. The General Pike, 16 0. S. 421. §444 METZLER'S OHIO TRIAL EVIDENCE 558 444. AMBIGUiTY. (a) In the case of a patent ambiguity, that is, one ap- ]iearing on the face of the instrument, a reference to matters dehors the instrument is forbidden as a general rule. It must, if possible, be removed by construction. Hxird V. Robinson, 11 0. R. 232. 23o. Clark V. Seminary. 2 C. D. 87, 3 C. V. l.")2. Boone v. Cincinnati, 13 O. D. 2.")(!. (b) But when an ambiguity arises from extrinsic matters, or when the object or extent of the instrument can not be determined from the language used, parol evidence is admis- sible to remove that ambiguity and ascertain the object upon which it was designed to operate. Insurance Co. v. Boyle, 21 0. S. 119, 12S. Hurd V. Robinson, 11 O. S. 232, 2.3o. Painter v. Painter, IS Oh. 247, 20.5. (c) An ambiguity arises where words apply equally to different things, and one and not the other must have been intended. It is not an ambiguity where by the language either was intended. Webster v. Paul. 10 0. S. .531. .534. (d) A deed of lot fourteen on the "village plat" may be shown by parol not to mean the recorded plat of the village, but a new and unrecorded plat of additional lands subdivided by the proprietors. Fitzgerald v. Paihvay. 1 Bull. 226. 7 0. D. "R. 173. (e) Upon a like principle stands the case of a contract to do a thing when there are two usual w^ays to do it. The party upon whom performance devolves may adopt either. If a contract to ship hogs is silent as to route, the shipper may select the route; and parol evidence is not admissible to show^ that one of the routes was agreed on. Webster v. Paul, 10 0. S. .531, 535. Cf. Lawrence v. McGregor, Wright, 103. (f) Parol evidence of declarations and conduct may be received when there is a latent ambiguity in a deed as to lines and corners, or where, in the application of the descrip- 559 THE PAROL EVIDENCE RULE §445 tioP in the deed to the land, the monuments require identifi- cation. But evidence of intention can not control a call or contradict the deed. :NrcAfferty v. Conover. 7 0. S. 90. See Alshire v. Hulse, Wright, 170. Harris v. Coppock, 5 0. L. R. 207, IS O. D. -iCiC. (g) A village claimed that the starting point of a survey ^vas on an old line and cut down plaintiff's hedge and in- cluded in the road a part of his land and he sued for dam- ages. It Avas held that parol evidence was competent to show which of two lines was treated as the line by the resurvey of the road. Caldwell v. Carthage. 40 0. S. 453. (h) When a printed order-form provides that orders will be filled at the earliest possible date, writing on the order "Ship at once — Rush" indicates a special agreement as to shipment and creates ambiguity; and what was said when the ambiguous words were written may be shown. Aronson v. Chair Co., 21 C. C. (X.S.) 30. (i) Parol evidence is admissible to explain away a latent ambiguity m a note given payable in goods, "at a fair whole- sale factory price," as to whether the parties intended the value of such goods to be estimated under the cash or trade standard as fixed by a particular factory. Barrett v. Allen, 10 Oh. 426. 431. (j) In a written contract to install a complete automatic sprinkler system to be completed in accordance with the re- quirements of the Ohio Inspection Bureau, the word "com- plete" is ambiguous, and parol evidence is admissible. Hoover Co. v. Extinguisher Co., 19 C. C. (X.S.) 129. 445. SURROUNDING CIRCUMSTANCES— CONTRACTS. (a) "Where the language of a contract is of doubtful im- port, it is proper to ascertain the circumstances which sur- rounded the parties, and the object intended to be accom- §445 METZUER'S OHIO TRIAL EVIDENCE 560 plislied, in order to give proper construction to its words and to determine its legal effect. Hosier v. Parry, 60 0. S. 388. Monnett v. *^Ionnett, 4G 0. S. 30. Masters v. Freeman, 17 0. S. 323. Cf. Bank v. Chandelier Co., 9 C. D. 807, 17 C. C. 443. (b) But the oral declarations of a party to a written instrument, made before or at the time of its execution, of an intention or purpose not therein expressed, or [and] different from that to be derived from its terms, are not within the rule which permits extrinsic evidence of the situation of the parties or of the surrounding circumstances when the instru- ment was executed, and are inadmissible in an action on the instrument where its reformation is not sought. Tuttle V. Burs-ett. ."3 O. S. 4 OS. Cf. Bank v. Chandelier Co., 17 C. C. 443, 9 C. D. 807. Sinton v. EzekicI, S A. L. R. 424, tl (). 1). K. S4"). (c) Where a written contract is doubtful in meaning, the facts of the transaction may be admitted to show that words prima facie relating to a past transaction in fact relate to the future. But v>'hen a contract plainly relates to the future, parol evidence to show a different understanding is not ad- missible. Lamping v. Cole, 5 W. L. '^L 187, 2 0. D. E. 737. Denton v. Wliitney. 31 O. S. SO. (d) Where a contract of sale is made by correspondence, the court may look not only to the language, but also to the subject-matter and surrounding circumstances, to determine whether there was a warranty as to quality. Dayton v. Hooglund, 39 0. S. 671. (e) In an action on a written contract for stone at four dol- lars and fifty cents "per perch," no uniform usage of the number of feet in a perch being shown and no statutory pro- vision fixing the standard, the verbal negotiations of the par- ties for the stone at eighteen cents per cubic foot, which the attorney of his own motion converted into perch of twenty-five feet each, are admissible. Quarry Co. v. Clements, 38 0. S. 587. 561 THE PAROL EVIDENCE RULE §448 446. SURROUNDING CIRCUMSTANCES— GUARANTIES. (a) In construing a guaranty, the language used is to be understood in its plain and ordinary sense as read in the light of the surrounding circumstances, the situation of the parties, and the object of the guaranty; and that construc- tion should be given which most nearly conforms to the intention of the parties. Morgan v. Eoyer, 3n 0. S. 324. Iron Co. V. Keynes, oft O. S. 501. Bank V. Garn/s C. C. (X.S.) 428, 13 C. D. 447. Bank v. Laidlaw, SO 0. S. 91. (b) An unlimited guaranty in the absence of words show- ing that it Avas intended to be continuing is equivocal; and the surrounding circumstances may be proved to enable the court to understand the terms employed and arrive at the mutual intention. Bank v. Cole. 83 0. S. 50, U C. C. (N.S.) 315. Landman v. Sauerston, 24 C. C. (N.S.) 478. 447. SURROUNDING CIRCUMSTANCES— WILLS. (a) In construing a will, it should be read with a view to the situation and circumstances of the testator in refer- ence to the subjects of his dispositions and the objects of his bounty. But such, circumstances can affect its construction only when it appears that they were known to the testator at the time of its execution. Worman v. Teagarden, 2 0. S. 380, Charch v. Cliarch, 57 0. S. nfil. Thompson v. Tliompson, 4 O. S. 333. Jones V. Lloyd, 33 0. S. 572. 448. SURROUNDING CIRCUMSTANCES— DEEDS. (a) The real meaning intended to be expressed by the language of a deed must be sought for; and in case of doubt, it may be read in the light of the circumstances surrounding the parties at the time of execution. Bobo V. Wolf, 18 0. S. 403. 405. Stove Co. V. Railroad, 23 C. C. (N.S.) 260. Kratz V. Risch, 13 N. P. (N.S.) 478. § 449 METZLER'S OHIO TRIAL EVIDENCE 562 (b) A grant passes everything within the ordinary mean- ing of its words, unless the entire instrument read in the light of the relation of the parties to the subject-matter clearly shows a more limited sense. And the circumstances may be considered in determining the nature of an easement reserved by deed. Coal Co. V. Mining Co., 40 0. S. 559. Longworth v. Bank, 6 Oh. 537. Lyon V. Fels, 8 N. P. 450, 11 0. D. 706. 449. CONSTRUCTION BY PARTIES. (a) Where the language of a contract is of doubtful im- port, it is proper to ascertain the construction which the acts of the parties show they gave to their agreement, in order to give proper construction to its words and to determine its legal effect. IMosier v. Parry, fiO 0. S. 388. (b) In such cases, the conduct of the parties and their course of dealing throw great light on the contract and on the intention of the parties ; and evidence of such facts, may be considered. Proctor V. Pnodgrass. 3 C. D. 2m, 5 C. C. 547. Malone v. CinL-innati, 3 Bull. 578, 7 O. D. R. 513, 515. (c) Subsequent transactions under or in pursuance of the contract, or with the contract in view, may be looked to for the pur])ose of discerning the interpretation the parties have put upon its doubtful provisions. Bank v. Garn. 3 C. C. (N.S.) 428. 13 C. D. 447. (d) Where the terms of a grant of a right-of-way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described in the grant, Warner v. Railroad, 39 0. S. 70. Railway v. Williams, 53 O. vS. 268. Railroad v. Cincinnati, 16 Bull. 367, 9 0. D. R. 695. (e) Where a deed is not clear as to the length of a pas- sageway, the construction placed upon the deed for many 563 THE PAROL EVIDENCE RULE §450 years by the adjoining owners wlio derived title from the same source will be adopted. Creed v. ITenkel, C. D. SGI, IS C. C. SS3. 450. IDENTIFICATION OF PARTIES. (a) Parol evidence is sometimes admitted to identify the parties to a written instrument. Thus where a receiver of a railroad accepted a bid to furnish coal, and ordered the superintendent of the road to sign a contract for it, evidence was admitted to show an intention to contract with the receiver. Mining Co. v. Railroad, 10 Bull. 42, 9 0. D. R. 1.".. (b) The introduction of parol evidence to prove the de- livery and acceptance of a written offer to contract, and to identify the person to whom the offer was made and thus establish the mutuality of engagements between the parties, is proper. Railroad v. Brown, 21) (). S. 223. 2.'!;]. (c) If a dispute arises as to the identity of any person named in a will, extrinsic facts may be resorted to in so far as they can be made ancillary to the right interpretation of the testator's words, but for no other purpose. Townsend v. Townsend, 2.1 0. S. 477. See Taylor v. Taylor, 7 X. P. (N.S.i 297. 19 O. 1). 829. (d) Where a bequest is given to a charitable institution and its name .is not correct, extrinsic evidence will be received to identify the corporation. TklcCormick v. Dunker, 3 C. C. (N.S.) (iOS, 14 C. D. 553. (e) Where there is a conveyance of land to a person by name and there are two persons of the same name, extrinsic evidence is admissible to show which was intended. Avery v. Rtitos, Wright, 56. (f) Where a board of county commissioners consented in wi'iting to the construction of a street railway in a street in front of county property, parol evidence was admitted to show that their signatures were made while sitting as a board. Xearing v. Railway. C C. T). 004, 9 C. C. .-)9r,. §451 METZLER'S OHIO TRIAL EVIDENCE 564 451. RELATION OF PARTIES. (a) Evidence may be introduced tending to show the relations of the parties just prior to and at the time of enter- ing into a contract, and also the conversations of the parties, for the purpose of enabling the court to ascertain the intentions of the parties in executing the contract. Therefore, where a note is signed by the persons individually, it may be shown by parol to be a partnership liability. Buschmeyer v. ]\Iachinery Co., 7 0. App. 202, 27 O. C. A. 337, 29 C. D. 207. Clapp V. Banking Co.,' 50 0. S. 528, 540, Magruder v. McCandlis, 5 W. L. G. ISS, 3 0. D. R. 269. (b) In order to show the relation of parties, an indorser may show that his indorsement was not made in the course of trade to transfer title. The declarations of the parties at the time may be admitted to show that it was agreed that his indorsement should be erased. Hudson V. Walcott, 39 0. S. 618. (c) An indorsement in blank may be shown by parol to have been made not to transfer title, but as a receipt of pay- ment ; as where after maturity a stranger to a note, at the maker's request, pays it to the holders, who then indorse it as proof of payment. This is showing that there is no con- tractual relation, and the proof must be clear and convincing. Morris v. Faurot, 21 0. S. 155. Olinger v. McGuffey, 55 0. S. 661. (d) Where a written contract is made by plaintiff's agent, the plaintiff may establish the agency by parol evidence, even if the agent has contracted in his own name without disclos- ing his agency or the name of his principal. Thayer v. Luce, 22 0. S. 62. (e) But parol evidence is not admissible to change the legal effect of a written contract with an agent in which he appears as principal, so as to make it binding on the prin- cipal, even where the principal is known to the other party. The party is bound to look to the agent. Post V. Kinney, 3 Bull. 118, 7 0. D. R. 439. Cf. Wilson V. Bailey, 1 Handy, 177, 12 0. D. R. 88. 565 THE PAROL EVIDENCE RULE §453 (f) In an action on an alleged stated account, the defend- ant may prove that there was one item withdrawn for future settlement by agreement, and also that the account was acquiesced in by one who had no authority to do so. Richmond v. Oil Co., S X. P. 22, 8 0. D. 583. (g) "When a loan was made by an insurance company on condition that the borroAver take out life insurance, parol evi- dence that the profits on the policy have amounted to enough to pay off the loan does not vary the writings but shows payment. Insurance Co. v. Morrow, 8 C. D. 410. Ifi C. C. 3ol. (h) On the trial of an issue under the statute of frauds, the assent of the plaintiff to the terms of the contract may be shown by parol evidence, when the signature of the de- fendant only is required. Thayer v. Luce, 22 0. S. 62, 76. 452. SUBJECT-MATTER— GENERAL RULE. (a) Extrinsic parol evidence is admissible to give effect to a written instrument by applying it to its proper subject- matter by proving the circumstances under which it was made, whenever without the aid of such evidence the applica- tion of the contract to its proper subject-matter could not be made. Hildebrand v. Fogle, 20 Oh. 147, loS. Buggy Co. V. Parker, 17 C. D. 115, 5 C. C. (N.S.) 383, 38.-). (b) To enable the court to ascertain the subject-matter where there is doubt, parol evidence of circumstances and of conversations preceding the making of the contract, which neither alter nor add to it, are admissible. • Motor Vehicle Co. v. Price, 23 C. C. (N. S.) 403. 453. SUBJECT-MATTER— CONTRACTS IN GENERAL. (a) In construing a written contract to superintend the erection of buildings, ])rior conversations and a plat which had been used by the parties may be admitted to identify the buildings and improvements. Proctor V. Snodgrasa, o C. C. 547, 3 C. D. 268. §454 METZLER'S OHIO TRIAL EVIDENCE 566 (b) In an action to recover damages for alleged failure of the vendor to deliver hogs according to the terms of a Avritten contract in which the snbject of the sale is desig- nated as "ray hogs," the plaintiff may introduce parol evi- dence to show that the defendant did not deliver all of his hogs. Watson V. Lamb, 75 0. S. 481. (c) But a written contract of sale of one hundrad mer- chantable fat hogs in which the weight is stipulated, is not a sale of specific chattels; and parol evidence will not be admitted to show that the hogs then owned by the seller formed a part of the one hundred. Johnson v. Pierce, 16 0. S. 472. Cf. Peabody v. Kelly Co., Iddings, ITi!). (d) And in an action on a written contract of sale of eight thousand bushels of corn, it was held that the contract can not be construed as a sale of a specific lot of corn of about that amount ; and that parol evidence is not admissible to show that the plaintiffs then owned a greater quantity of corn than eight thousand bushels in cribs on a certain farm, and that the con- tract was for the sale of an undivided part of the entire lot. Ormsbee v. Machir, 20 0. S. 295. 454. SUBJECT-MATTER— WILLS. (a) In construing a Avill, parol evidence of extrinsic cir- cumstances is admissible for the purpose of applying the descriptions to their appropriate subject. The descriptions may be apparently plain, and yet the whole Avill may, in view of the circumstances, show them to be false in part. The false part will then be rejected and effect be given to the devise. Asliworth V. Carleton, 12 0. S. 381. Townsend v. Townsend. 25 0. S. 477. Cf. Hull V. Hull, 9 C. D. 19, 16 C. C. G8S. (b) The testator having used the phrase "my two farms," extrinsic evidence may be introduced to show the situation of the land and the manner in which it had been used and 567 THE PAROL EVIDENCE RULE §455 treated, in order to ascertain whether a disconnected piece of Avoodland Avas in fact a part of one of the "two farms" so as to pass under the devise. Black V. Hill, 32 0. S. 313. (c) Words in a devise applicable to one thing as its name, and to another as its description, may be aided by parol evi- dence of testator's habit of using the words. And in order to determine how much was included in the "home farm," its situation and use may be shown, but not neighborhood reputation. Bopgs V. Taylor. 20 0. S. 604. Taylor v. Boggs, 20 0. S. 516. (d) A devise of testator's interest in his aunt's estate, -Vshere her estate was for life, may be shown by parol to mean the remainder after his aunt's life-estate had ended. Williams v. Swift. 6 Bull. 722, S 0. T). "R. 2.)8. (e) But parol evidence can not be admitted where the language is applicable to any subject. Where the executor is directed to collect all life insurance held by testator, this does not include beneficial certificates payable to testator's wife, if there is other insurance. Charch v. Charcli, 57 0. S. 5G1. 455. SUBJECT-MATTER— INSURANCE POLICIES. (a) ^Miere an insurance policy is doubtful in meaning, parol evidence is admissible to show the nature and qualities of the subject-matter, the situation and relation of the parties, and all the circumstances in order to aid the court in apply- ing the language to the subject-matter. Insurance Co. v. Sherwin-Williams Co., 23 C. C. (X.S.) 390. Roots V. Insurance Co., 1 Dis. 138, 12 0. D. R. 535. Harris v. Insurance Co., 1 C. S. C. R. 361, 13 O. D. R. 5!)9. (b) A verbal promise that the policy shall cover certain personal property on the farm of another, which promise led up to and was used to induce the making of the contract, may be shown when the policy does not definitely express the same. Walrath v. Tnsurnnco Co.. C. D. 233. 16 C. C. 413. Insurance Co. v. Walratli. !l C D. 600, 17 C. C. 500. §457 METZLER'S OHIO TRIAL EVIDENCE 568 456. SUBJECT-MATTER— LAND CONTRACTS. (a) A grant of "all right, title, interest, or claim to any land descended to me from A or B" is sufficient; and parol evidence is admissible to identify the land, but not to prove an intention contrary to the terms of the deed. Barton v. Morris, ]."> Oh. 408. See Stanibaugli v. Smith, 23 0. S. r)S4, aO."). (b) Extrinsic evidence has been held admissible to iden- tify land conveyed as a tract known as the east half of the southwest division of a section, although such testimony shows that the land so conveyed was less in quantity than the mathematical half of the division. Pchlief V. Hart. 29 0. S. 150. (c) In the sale of real estate or a lease for years without a reservation of a growing crop, parol evidence may be intro- duced to show that the crop was growing at the time, and was treated as personalty and not intended to be conveyed. Baker v. Jordan, 3 0. S. 438. ■ Youmans v. Caldwell, 4 0. S. 71. (d) "Where a city by ordinance granted a right to lay a track in a street, and the name of the street has been changed, this may be shown by parol. Gunning v. Railway, 14 0. D. 660. (e) In construing a contract for the sale of realty, parol evidence may be admitted to explain or aid the description and to identify the property. The same rule applies to a chattel mortgage. Graf V. Wirthweine, 1 Handy, 19, 12 0. D. R. 4. In re Rice, 18 N. P. (X-S.) 480. 457. SUBJECT-MATTER— THE DEBT. (a) A mortgage duly executed, acknowledged and re- corded is not invalid from a want of certainty in the descrip- tion of the debt intended to be secured; it may be shown as between the parties themselves. Hurd V, Robinson, 11 0. S. 232. Cole V. Bank. 1.5 C. C. (N.S.) 315. Cole V. Bank, S3 0. S. 50. 569 THE PAROL EVIDENCE RULE §457 (b) Parol evidence was admitted to show that a note and mortgage, absolute in form, were given to secure unpaid bal- ances on a future running account. Utter V. Hudnell, 7 A. L. R. 118, 6 0. D. R. C21. (c) Where the maker of a note gives the payee an order on a third person who holds a fund of the maker requiring him to pay the note out of it, without describing the note or its amount or payee, the order may be made certain as against other claimants by parol evidence showing that the note was the only one held by the payee. Robbins v. Klein, 60 0. S. 199. APPENDIX AN OUTLINE OF EVIDENCE JUDICIAL ADMISSIONS lu civil actions, courts do not hear evidence until it has been determined what ultimate facts are in issue. An issue of fact arises (1) upon a material allegation in the petition denied by the answer, (2) upon a set-off, counterclaim, or new matter presented in the answer and denied by the reply, (3) upon material new matter in the reply, which is to be considered as controverted by the adverse party as upon a denial or avoidance, as the case may require, without further pleading. In a pleading, facts may be judicially admitted in two ways : (1) by admitting specifically, and (2) b}^ failure to deny. The allegations of a pleading that are to be taken as true, if not denied, are material allegations of fact ; that is, those which could not be stricken out of the pleading without leaving it insufficient. Aside from the admissions of the pleadings, there are four methods of dispensing with evidence by judicial admis- sions: (1) by an agreed case, (2) by an agreed state- ment of facts, (3) by an agreement as to certain facts, and (4) by oral admission in open court. JUDICIAL NOTICE Judicial notice is the recognition of well-known facts •\\nth- out proof. The court may resort to any proper source of information, and is not bound by tlie rules of evi- dence. Courts take judicial notice of — Matters of notoriety, such as (1) Public History and Geog- raphy ; (2) Facts of Science and of Art, and (3) Matters of Common Knowledge. 571 572 APPENDIX Courts also take judicial notice of — Matters of government, such as (1) Courts and their Pro- ceedings; (2) General Law and Ordinances; and (3) Legislative Proceedings. PRESUMPTIONS A disputable presumption attaches to a given state of facts the value of a legal prima facie case; that is, one suffi- cient to establish. The principal presumptions are as follows: (1) The presumption of innocence. (2) Presumptions relating to capacity of children to commit crimes. (3) The presumption of sanity. (4) The presumption of legitimacy. (5) The presumption of death from absence of seven years. The maxim, "omnia praesumuntur, " means that regularity makes prima facie proof. The presumptions in favor of (1) Performance of Duty; (2) Regularity of Transactions, and (3) Validity of Official Acts come from this maxim; but these presumptions are seldom laid down as a legal prima facie case. The statements of these maxims are often the reasoning of the court on its conclusion that the evidence was sufficient to submit to the jury, or that the evidence supports the verdict or judgment. Rules relating to the construction of writings are frequently stated in the form of presumptions. In such cases, the effect of the ruling is not to attach a legal prima facie significance to evidence of facts, but to give presumptively a certain meaning to the words of a contract or instru- ment in writing. The rule on the burden of proof is sometimes put in the form of a presumption in favor of the one denying. A presumption of fact is a conclusion drawn from circumstan- tial evidence. Presumptions of fact and logical inferences are identical ; and they must be submitted to the jury, which should be permitted to arrive at its own conclusion. The presumption of continuance is one of fact, which is fre- quently stated, and is almost as well known as any pre- AN OUTLINE OF EVIDENCE 573 sumption of law. It is a general principle that when a condition of things is once shown to exist, there is a pre- sumption that it continues thereafter until the contrary- is shown. But the condition of anything raises no presumption that its prior condition was the same ; and evidence of condition at any time is not admissible to show prior condition. When a mere logical inference is stated as a presumption, it usually signifies that the evidential fact from which the inference arose was relevant and could not be excluded on the ground of irrelevancy. Conclusive presumptions of law are not evidence, but a part of the substantive law. The principal conclusive pre- sumptions are: (1) that a child under seven is incapable of crime; (2) that every person knows the law. Other examples of conclusive presumptions are to be found in the law of estoppel and in the statutes of limitation. THE BURDEN OF PROOF The general rule is that the burden of proof rests on the party holding the affirmative; this means that a denial of allegations places the burden on the one alleging. But where a party pleads new matter in confession and avoid- ance, he assumes the burden as to such new matter. When the legal effect of the allegations in an answer is a mere denial of the averments in the petition, such allega- tions can not be regarded as new matter. However, when facts admissible under a denial are pleaded for the pur- pose of narrowing the general issue, they may be regarded as new matter. The burden of proving any particular fact generally lies on that person who wishes the court to believe in its exist- ence ; and if a party wishes the court or jury not to accept as true an inference naturally arising from evidence ad- duced, the burden is upon him to make correction by cross-examination or otherwise. The party who affirms should open and close the evidence; and he must open by making out a case for tlie jury, and close with a preponderance of the evidence in his favor. 574 APPENDIX When all the evidence in chief has been adduced, the parties will then be confined to rebutting evidence, unless the court for good reasons in furtherance of justice permits them to offer evidence in their original cases. THE SHIFTING BURDEN The burden of proof never shifts ; but the duty of adducing evidence is shifted by presumptions of law, by presump- tions of fact of the stronger kind, and by evidence strong enough to establish a prima facie case. The party holding the affirmative is the only party who is required to produce a preponderance of evidence to secure the verdict. His opponent need do no more than counter- balance the presumption or prima facie case against him ; because evidence of equal weight prevents a preponder- ance on the other side. "Where the subject-matter of a negative averment relates to the adverse party personally, and lies peculiarly within his knowledge, the averment will be taken as true, unless disproved by him. This is a rule providing that a prima facie case may be made without proof of negative allega- tions under certain conditions. The strong presumptions and prima facie cases account for most of the rules requiring clear and convincing proof. Such proof is required (1) to impeach the record of offi- cial action; (2) to establish lost instruments; (3) to vary writings formally executed, as to reform an instrument, or to engraft a trust on a deed absolute. The same degree of proof is also required to establish some transactions not favored by law ; such as gifts, and contracts between members of a family for domestic services. THE DEGREE OF PROOF The presumption of innocence is so strong that it can be overcome only by full proof, such as will exclude all reasonable doubt of the guilt of the accused. Every essential element in the charge must be proved beyond a reasonable doubt. AN OUTLINE OF EVIDENCE 575 By the plea of "not guilty" alone, the prisoner restricts him- self to denying and disproving the facts involved in the original transaction, including all the accompanying cir- cumstances. This allows such defenses as alibi and want of capacity or criminal intent. And these defenses need not be proved by a preponderance. When the accused claims to control the legal effect of facts by the alleged existence of other facts, the burden is upon him to show a preponderance of evidence in favor of the existence of the latter. Such defenses are in the nature of confession and avoidance, and include (1) In- sanity; (2) Self-defense, and (3) Duress. On the trial of civil actions the issue is determined in accord- ance with the preponderance or weight of the evidence. The rule is that he who affirms must prove ; and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail. The proof should be deemed to preponderate in favor of any disputed fact, whenever its existence is made probable upon a full and fair consideration of all the evidence adduced for and against it. The issue in civil actions need not be proved beyond a reason- able doubt, even in cases wherein the claim or defense is based on facts which amount to an indictable offense. On the trial of a will contest, the burden of proof is upon the contesting party ; the order of probate is prima facie evidence of the due attestation, execution, and validity of the will or codicil. In negligence cases the burden of proof is upon the party claiming that the injury was done, to show that it was occasioned by negligence, carelessness, or wantonness ; and he must prove the reality and nature of the injury. The action of negligence may be maintained if, upon the whole evidence, the negligence of the defendant is estab- lished by a preponderance of evidence, and contributory negligence of the plaintiff is not shown by the same weight of evidence. it is the general rule that oji applications in special proceed- ings, the burden of proof is on the one applying. 576 APPENDIX COURT AND JURY A trial is a judicial examination of the issues, whether of law or of fact, in an action or proceeding. Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds: (1) Issues of law; and (2) Issues of fact. Issues of fact in actions for the recovery of money or specific real or personal property are for the jury, except when the judge decides that there is not a scintilla of evidence. In all equity cases, and when a jury is waived, the questions of fact are for the court. All issues of law, and the facts preliminary to the admission of evidence are also for the court. The passing upon the credibility of witnesses is exclusively within the province of the jury. Even the maxim, "falsus in uno, f alsus in omnibus, " is to be applied by the jurors according to their own judgment. The weight and the sufficiency of the evidence are matters to be determined by the jury from the quality of the evi- dence. Both the credibility of witnesses and their number should be considered. The jury is not required to decide for the party having the greater number of witnesses ; it may believe the fewer witnesses on the other side. Jurors can not act upon particular facts resting in their pri- vate knowledge, but should be governed by the evidence ; they may, however, judge of the weight and force of that evidence by their own general knowledge of the subject of the inquiry. It is not the province of the court to classify witnesses, such as detectives, abandoned women and relatives, and give to the jury what the experience of the courts may be in respect to a class; but their credibility should be left to the jury. The rule does not apply to accomplices. The general rule is that positive testimony is of greater weight than negative testimony. But the rule should never come in conflict with the general rule that the weight of the evidence should be left to the jury. The question of the weight to be given to negative testimony often arises AN OUTLINE OF EVIDENCE 577 in railroad and other accident cases Avliere it is claimed that signals were not given. The court in the charge should separate and definitelr state to the jury the issues of fact made in the pleadings. It is not sufficient to read the pleadings to the jury. A cliarge to the jury should be a plain and unambiguous state- ment of the law as applicable to the case made before the jury by the proof, and not mere abstract legal rules. The court in charging the jury may properly recite what is claimed by the parties to be proved, where this is fairly, and not argumentatively, done. Instructions advising the jury of the object for which particu- lar items of evidence are admitted, and cautioning them against being misled by their improper use, are often necessary. When the evidence is such that more than one inference may be drawn, or that several minds may reasonably arrive at different conclusions, the case should be submitted to the jury. "When the facts are conclusively determined, it is a function of the court to apply the law to such facts. And the facts may be so determined: (1) by statements of counsel for the purpose of tlie trial, as in the opening statement to the jury; (2) by failure to produce a scintilla of evi- dence; (3) by the concurrent testimony of all the wit- nesses; (4) by an agreed statement of facts; (5) by a special verdict; or (6) by the answer of the jury to in- terrogatories. In mixed questions of law and fact, such as questions of reasonableness, probable cause, negligence and due dili- gence, the question is one of law for the court when the material facts are ascertained or admitted. But where the facts are contested, it is for the decision of the jury under instructions. The general rule in jury eases may be recapitulnted asfolloAvs: The tendency of evidential facts is for the court ; The weight and credibility of evidential facts are for the jur}' ; The finding of ultimate facts is for the jury; To apply the law to ultimate facts is for the court. 578 APPENDIX ISSUE AND VARIANCE Evidence should correspond to the allegations of the pleading, but where the pleading is only indefinite, the courts are liberal in admitting evidence to prove its allegations, be- cause it might have been made definite by motion. And when there is a variance, that is, a disagreement between a material allegation and the evidence, and it does not mislead the opposite party to his prejudice, the court may direct the fact to be found according to the evidence, and order an immediate amendment without costs. Evidence that will make a material variance, and prejudice the adverse party, should be objected to by him when it is offered. It is error to admit over objection evidence substantially dif- ferent from the allegations of the petition. Such evidence should be excluded until the plaintiff has amended his petition and an issue is made up. When the court is satisfied that the variance is prejudicial, it may order amendment upon such terms as are just. Before or after judgment in furtherance of justice and on such terms as it deems proper, the court may amend any pleading by inserting other allegations material to the case. A party may properly object to the introduction of any evi- dence to support a fatally defective pleading. And failure to demur does not forfeit the right. The objection should be presented before the introduction of any evidence. Where evidence is admitted at the trial without objection, the court may allow an amendment by inserting a material allegation, or when the amendment would not substan- tially change the claim or defense, by conforming the pleading to the facts proved. Failure of proof is not a variance. When the allegation of the claim or defense, to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance, but a failure of proof. AN OUTLINE OF EVIDENCE 579 The material allegations or those which could not be stricken out without leaving the pleading insufficient, must be proved. The substance of the issue must be proved as alleged ; and all immaterial averments may be disregarded. A failure of proof or a variance not prejudicial to the de- fendant, as to allegations not essential to a recovery is not such a variance as will defeat the plaintiff's action. It is a general rule that a defendant who makes a^ general denial must adduce evidence that disproves, or is incon- sistent with the allegations of the petition. A defendant who can not truthfully deny the facts alleged in the petition, but is able to show new matter in avoidance, should set up the new matter on which he relies; if he fails, and objection is made to his evidence, it will be excluded. RELEVANCY All evidence, except that obtained by inspection, is either direct or indirect. Evidence is direct when the alleged fact itself is affirmed or controverted. Evidence is indirect, or circumstantial, when there is adduced evi- dence of facts collateral to the alleged fact, but so related thereto as to tend by inference to establish or disprove it. Such collateral facts are evidential facts ; the fact sought to be proved is the ultimate fact. When circumstantial evidence is relied upon to prove a fact, the circumstances must be proved by direct evidence ; they can not be inferred. The first test of the admissibility of indirect evidence is that the evidential facts must be probative of, or logically relevant to, some fact in issue. After issues have arisen on the evidence, the rule of relevancy is satisfied if the evidence is relevant to the incidental issues made by the proof. All relevant facts which are not excluded by any rule are admissible for any of the following purposes in so far as they aid in determining the issues: (1) To show that any document is genuine or other- wise. (2) To introduce or explain a fact in issue or relevant thereto. 580 APPENDIX (3) To support an inference suggested by any such fact. (4) To rebut an inference suggested by any sueh fact. (5) To prove or disprove the identity of a person when in issue or relevant thereto. If the evidential fact tends to prove a fact in issue, the evi- dence is relevant ; and it is admissible if not excluded by some other rule. In other words, no irrelevant fact is admissible ; but every relevant or probative fact is ad- missible unless excluded by some other rule of evidence. There are, however, some positive rules of exclusion. The rule confining evidence to the point in issue excludes all evidence of collateral facts which are incapable of afford- ing any reasonable inference as to the principal matter or fact in dispute. The evidential fact must not be too remote. This is the first rule of exclusion. Facts entirelv collateral to the issue are not admissible in evidence. The reason for this rule is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them ; and moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it. CHARACTER In civil cases where character is not a part of the issue, the general rule is that character of a party, or of any person not a witness, is not admissible. Evidence of bad character is admissible as a part of the issue in mitigation of damages in the following cases: (1) in libel or slander, the bad character of plaintiff as to the trait assailed; (2) in an action for breach of promise, the bad character of plaintiff for chastity; (3) in an action for seduction, the bad character of the person seduced. When evidence of bad character has been introduced, evidence of good character becomes admissible. On principle, when character is a part of the issue, it may be proved; and when good character is an element of damage, as in false imprisonment and malicious prosecu- AN OUTLINE OF EVIDENCE 581 tion, bad character may be shoAvn in mitigation of dam- ages. So also evidence is admissible to sIioav reputed character in several cases. (1) The reputed character of a person that v\"as under arrest, and who is plaintiff in an action for mali- cious prosecution, is admissible to show probable cause. This rule applies in similar cases when reasonable grounds for arrest are involved. (2) The reputed character of the deceased as a dan- gerous man, known to the accused, is admitted on behalf of the accused, when he is charged with homicide and he pleads self-defense. Rule applies in assault and battery. (3) The reputed character of an employe for incom- petency is admissible to charge the employer with knowledge. (4) The reputation of other third persons sometimes becomes relevant, as the reputation of associates, or of physicians prescribing liquors, or of per- sons frequenting a place. There are three cases in which such evidence is admitted for the purpose of showing the probabilitj^ that a person would do an act. (1) In criminal cases, the prosecution may show the defer dant's bad character, but only after the ac- cused has offered evidence of his good character. This rule does not exclude his character as a witness. (2) The character of complainant for chastity in a case of rape is admissible against her as affecting the probability of her consent. (3) The character of deceased in a homicide charge is admissible in favor of the accused, where the issue of self-defense is made. [Probably no case in Ohio on this rule.] The court may limit to ten the number of witnesses that may be examined as to reputation on the trial of certain crim- inal eases, unless the payment of the fees of those in ex- cess of ten is provided for by the party calling them. 582 APPENDIX KNOWLEDGE When knowledge of a party at a certain time is a material fact, the acts and conduct of such party which tend to show knowledge at that time, and circumstances such as would have given him notice, are relevant, even though such facts are not in issue. Such evidence has been admitted to show (1) that one had notice of bankruptcy proceedings; (2) that accused had knowledge that a note was counterfeit; (3) that defend- ant knew his statements were false ; (4) that party took a check with notice; (5) that city had notice of a defect in a sidewalk. Where scienter is a necessary element, and evidence of similar crimes tends to show knowledge, such crimes may be shown. It has been shown (1) that accused had in his possession similar counterfeits; (2) that he had passed a similar counterfeit ; (3) that the same persons had been engaged in a similar conspiracy; (4) that defendant had knowingly received and sold stolen goods at a former time. Similar frauds are also admissible, such as that defendant made false representations to others. Similar accidents or occurrences are admissible to show de- fendant's knowledge of defects. Knowledge may be shown by evidence of reputation (see Character) . Reputation of houses may also be put in evidence to show knowledge, as that they are public resorts or gambling places. MOTIVE It is a general rule that the motive with which a lawful act is done is not relevant. But when there is a question whether an illegal act was done by any person, any fact which supplies a motive for such an act is relevant. The commission of a prior crime may be shown for the pur- pose of furnishing a motive for the commission of the crime charged if such prior crime is so related to the latter as to have a logical connection therewith, and rea- sonably to disclose a motive. AN OUTLINE OF EVIDENCE 583 INTENT When the intent of a part}' is a part of the matter in issue, evidence may be given of his acts and conduct not in issue, if they tend to establish his intent in doing the act in question. For example, the intent to deliver a deed, to abandon an easement or to revoke a will. Where the guilt of a person depends upon whether the act was done with intent, or with specific intent, such as as- sault with intent to do other violence, collateral facts in which he bore a part and which tend to establish such intent are admissible in evidence. Other similar acts and offenses tending to show intent are admissible. Other false receipts and other solicitations of bribes have been admitted for the purpose. Other similar offenses must be proved by the state beyond a reasonable doubt. MALICE Indirect evidence, such as previous threats, which tend to show malice, when it is material, is admissible. In tort actions which involve fraud, malice, insult or reck- lessness, the defendant may show all facts which tend to rebut malice and mitigate damages. Where malice is an essential ingredient of a tort or an offense, such as malicious prosecution or malicious destruction of property, evidence that the defendant acted on legal advice is admissible to show absence of malice. In libel and slander, falsity and other similar offenses are admissible to show malice ; and defendant may prove, in rebuttal, facts which misled him and caused his belief. MENTAL SUFFERING When mental suffering is material to tho issue, as in a suit for dog-bites or false arrest, the plaintiff may testify as to the effect upon his mental or nervous system. GOOD FAITH Where a person does an act apparently criminal, the excusing circumstances may be given in evidence to show his good faith where that is material, or that he was ignorant of the facts that would make his acts criminal 584 APPENDIX Intoxication is no defense to a prosecution for crime. It is only allowed to rebut guilty knowledge, deliheration and premeditation or an intent requiring nice discrimination, and should go no further. THE HEARSAY RULE Hearsay is the evidence of those who relate, not what they know themselves, but Avhat they have heard from others. Such mere recitals or assertions, whether oral or written, can not be received in evidence. Evidence of a witness that he had heard or understood that a statement Avas a fact is hearsay. But it is not hearsay for a witness to state that he had heard of a certain trans- action, when the object of the question is to aid the memory. The Hearsay Rule is said to be satisfied, and is not applicable to (1) testimony by deposition, and (2) testimony at a former trial. Statements or Avords that are evidence of other facts, and not evidence of a fact mentioned therein are not hearsay, such as the words of a party that show his intent. And when the question is Avhether a person acted prudently, wisely or in good faith^ as in making an arrest, the information on which he acted, whether true or false, is original and not hearsay evidence. Upon the same principle, it is considered that evidence of general reputation, reputed ownership, public rumor, gen- eral notoriety, and the like, though composed of the speech of third persons not under oath, is not hearsay. Statements or words material as a part of the issue, as the words used in slander or libel, and the statements con- stituting a contract or false representations are not hear- say. And all statements or words that are a part of the res gestae, sometimes termed "verbal acts," are excluded from the hearsay rule. AN OUTLINE OF EVIDENCE 585 EXCEPTIONS TO THE HEARSAY RULE. Declarations of deceased persons about family history are excepted ; but -when made post litem motam are inad- missible. The rule of admission is restricted to the dec- larations of deceased persons who were related by blood or marriage to the persoii, and therefore interested in the succession in question. Declarations of deceased persons in regard to reputation on matters of public or general ijiterest are admitted, not- withstanding the hearsay rule. Declarations in regard to an ancient custom is an example. The rule is often ap- plied to private boundary disputes. Declarations of a deceased person against third persons not claiming under him, are admitted on the ground that they were made against his pecuniary interest, and it should appear that he has peculiar means of knowledge of the subject-matter of the declarations. Statistical and mathematical tables, such as almanacs and mortality tables and regular commercial publications, are not hearsay. An entry made in a professional capacity or in the usual course of business at the time of the transaction by a person legitimately connected therewith, and not a party to the suit, but who is shown to have had means of knowledge and no interest in misstating the facts, is admissible in evidence. Dying declarations on circumstances of death in abortion and in homicide cases, fall within the exceptions to hearsay. They may be oral, in writing, or by signs. It should be made to appear to the court by preliminary evi- dence not only that they were made in articulo mortis, but also made under a sense of impending death, w^hich excluded from the mind of the dying person all hope or expectation of recovery. Admissions and confessions may be regarded as exceptions to the hearsay rule, because they are evidence of facts stated in them. They are introduced to prove the issue, and not merely to discredit the witness. 586 APPENDIX ADMISSIONS The admissions of a party against his interest are admitted on the ground that the matter declared is probably true. The interest must be subsisting at the time of the admis- sion. Constraint will not avoid, but fraud and imposition will. A party is not estopped from denying the truth of his own statements, unless they were made in bad faith or to the prejudice of the adverse party. If the admission was calculated to and did in fact mislead the other party, who, acted in good faith and with reasonable diligence, it will estop the party making it, although made in good faith. The whole statement is admissible. If a party's admission is testified to by a witness, such party may cross-examine the witness as to other parts, or he may call another wit- ness and show the whole conversation. But the party can not rebut admissions by showing later statements to others. Admissions may be oral, and may be made in a foreign lan- guage, or through an interpreter. Admissions may be in writing. Signed statements or even writings of third persons, Avhen admitted to be correct, may be competent as admissions. The admission must have been made by a real and necessary party, or one identified with him. The statement of a third person to whom a party has referred for information in regard to a matter is competent as an admission of such party. The acts and admissions of a grantor respecting his title, which would be admissible against him, are admissible against his grantee. But the rule does not apply to acts, etc., before the commencement of grantor's title, or after he has parted with his title. "Where there is a joint relationship existing between two or more parties-defendant in the same action, an admission made by one, concerning the subject-matter in dispute, is admissible as against his co-defendants. AN OUTLINE OF EVtDENCE 587 But -when there are several parties-defendant whose interests are not joint, but merely common, such as co-heirs, the admissions of one are not competent against the others. (See acts and admissions of agents, partners, and co-conspira- tors in the subject of Res Gestae.) Admissions may be implied from the acquiescence of a party. But to have the effect of an admission, the acquiescence must exhibit some act of the mind and amount to volun- tary demeanor or conduct of the party — direct declara- tions of that kind which naturally call for contradiction — or some assertion made to the party with respect to his right which, by his silence, he acquiesces in. And the party should be allowed to explain his silence. The ordinar}^ inference where a party fails to offer proof of what he ought to prove, if it exists, is that the evidence w^ould have been unfavorable to him, and therefore he withheld it. And the party in this case may explain his omission to call a witness. Admissions made in treating for settlement are not admissible. The fact that an offer to compromise the matters in dis- pute between the parties was made, is incompetent, either as indirect evidence or as an admission. However, accord and satisfaction may be shown. An offer to confess judgment is not to be deemed an admission of the cause of action, nor of the amount to which the plaintiff is entitled ; and it can not be given in evidence or mentioned on the trial. It is a general rule of evidence that the declarations of a party are admissible in evidence against liim l)ut not in his favor, as such are considered solf-serving. For instance, a written statement made by a party after an event will not be admitted to substantiate his own testi- mony. Admission without objection of part of a self-serving declara- tion, does not open the door for the other parts. However, the declarations of a party are admissible in his favor for the purpose of showing the state of his mind when that is material, as in repelling an imputation of fraud. 588 APPENDIX CONFESSIONS Confessions are declarations against interest by the accused concerning his participation in a crime. They are judicial or extrajudicial ; and it must first be shown that an extrajudicial confession was voluntary ; for no man should be required to give incriminating evidence against himself. Confessions made through the influence of hopes or fears, in- duced by promises of temporal benefit or threats of dis- advantage, are involuntary and wholly inadmissible. "When induced by threats or promises made by one having authority over the prosecution, they are presumed to be involuntary. "When extorted by duress, they can not be regarded as voluntarv ; but fraud and deceit will not make a confession involuntary, unless they have a tendency to make him swerve from the truth. At a preliminary hearing, from which the jury may be ex- cluded, the judge should determine how the confession was produced. But the judge may, if the evidence is conflicting, submit the question to the jury with instruc- tions to disregard the evidence if they fi.nd the confession to be involuntary. The burden of showing that a confession was involuntary rests on the accused, who may cross-examine the witness and call other witnesses. The accused is entitled to have the Avhole confession given to the jury, the exculpatory as well as the inculpatory parts. Its weight is for the jury. Confessions are evidence against the person who confesses, and not against accomplices. "When a confession has been reduced to Avriting, both the oral and the written confessions mav go to the jury. And the trial-court may, in its discretion, send a Avritten confes- sion to the jury-room. Before an extrajudicial confession is admissible, tliere must be some evidence outside of the confession tending to establish the corpus delicti. This means the body or sub- stance of the crime, included in which are usuallv two AN OUTLINE OF EVIDENCE 589 elements: (1) the act, and (2) the criminal agency of the act. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged. If the accused is convicted by judicial confession, that is, in open court, the judge will examine the -witnesses, deter- mine the degree of the crime, and pronounce sentence accordingly. RES GESTAE Every fact that is so connected with a fact in issue as to form part of the same transaction or occurrence, though not in issue, is admissible in evidence if it tends to prove or dis- prove any fact in issue. And a party introducing part of a transaction or occurrence will not be heard to object to other material facts occur- ring at the same time. "When a person does any act that is material to be understood, as when he changes his residence or goes upon a journey, his declarations made at the time and expressive of its character, motive or object, are regarded as verbal acts, indicating a present purpose and intention, and are there- fore admitted in evidence. But self-serving declarations are exchided. Exclamations become a part of the res gestae when tliey are involuntary and involve no intellectual process. The admissibility of exclamations is determined by the causal, logical or psychological relation of such exclamations with the primary facts in controversy. This applies equally to participants, by-standers and persons incompetent to be witnesses. "When a party has been injured, a physician called for treat- ment may testify what the patient said to him about his condition. This would be a verbal act. But if the physi- cian was called to prepare liini as nn expert witness, the statements to him would be self-servincr. Exclamations of the sick may be testified to by non-expert witnesses. 590 APPENDIX In a prosecution for rape or for assault with intent to commit rape, the substance of what the prosecutrix said or the declarations made by her immediately after the offense may be given in evidence in the first instance to corroborate her testimony. But such evidence is not admissible in chief to prove the commission of the offense. ADMISSIONS OF AGENTS The universal rule is that the declarations of an agent are only admissible against the principal when made in per- forming the business of the principal, or professing to act for the principal in the doing of some act within the apparent scope of his authority. It is because the declaration of an agent is a verbal act and part of the res gestae, that it is admissible; and whenever what he did is admitted in evidence, then it is competent to prove what he said about the act while he was doing it. The statements of mere employes who are charged with specific duties, such as a doorkeeper or a driver, can not be offered in evidence to bind the employer, when it appears that such employes had no such control or authorit}^ as would make their admissions competent. The admissions or conversations of the agents of a corpora- tion, when engaged in the precise business intrusted to them, are admissible. Where the act of the partner is within the scope of the part- nership, a declaration made by him at the time of the transaction is competent to show that the act was done in behalf of the partnership. The acts and declarations of a conspirator may, after prima facie proof of conspiracy, be given in evidence to charge his fellow-conspirator ; but the acts and declarations ad- mitted must be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of the common object. AN OUTLINE OF EVIDENCE 591 OBJECTIONS AND EXCEPTIONS When an objection is made to the introduction of evidence, the court must decide whether it is admissible or not ; if either of the parties upon hearing the decision is not satisfied, he may except. When it is desired to submit to a reviewing court exceptions to rulings on evidence, they must be made a part of the record by means of a bill of exceptions. No exception will be regarded unless it is material and prej- udicial to the substantial rights of the party excepting; and such party must not be responsible for such error. A party can not be permitted, either intentionally or unin- tentionally, to lead a court into the commission of an error, and then procure a reversal of the judgment for an error for which he was actively responsible. When improper evidence is admitted, exception must be taken for review, and the record must show the evidence or its tendency. The admission of improper but indecisive evidence is not prej- udicial, especially when substantial justice has been done. The fact that a party was examined on a matter not at issue, or that the adverse party offered evidence of matters he was not bound to prove, will not avail on error unless prejudicial. When the effect of improper and prejudicial evidence is cured by subsequent explanation, it can not thereafter be re- garded as prejudicial. If proper evidence of a party is excluded, exception must be taken for review, and a statement of expected proof must be made. The exclusion of proper but indecisive evidence is not preju- dicial. It is not error to exclude evidence that is merely cumulative ; but it is prejudicial error to exclude corroborative evi- dence when it is needed to support an interested witness or one whose credibility has been attacked. If the evidence intended to be elicited by the excluded ques- tion was in fact afterward received, so that no preju- dice was done, the exception can not be sustained. 592 APPENDIX TWELVE PRACTICAL RULES In the trial-court, it will be helpful to keep iu mind the fol- lowing practical rules : (1) In making objection, be prompt. An objection to a question is too late after the answer is not what is expected. (2) In making objection, be specific. When evidence is introduced, i^art of which is inadmissible, ob- ject to the inadmissible part only. And when evidence is offered, do not offer inadmissible evidence with evidence that is admissible. (3) When the introduction of evidence is objected to, counsel should be specific in stating the ground of his objection (except Avhen the ground is obvious). And when a specific objection is made, this, on error, is a waiver of all other objections. (4) AYhen evidence is offered generally, and it is admissible for one i:)urpose only, it is sufficient to object to the evidence on the ground that it is not restricted to its proper purpose. (5) When evidence is admitted for one purpose only without objection, the adverse party should ask the court to instruct the jury to limit its effect to its proper purpose. (6) When evidence is offered for a particular pur- pose, and it is objected to for that purpose, and the court admits it generally, the court should be asked to say to the jury that the evidence is not proof of the particular fact for Avhich it is offered. I No authority in Ohio.] (7) When evidence is admitted against objection, and it is altogether improper, it is prejudicial error; and it is immaterial whether or not the objecting party stated the right or wrong reason, or stated any reason at all for his objection. (8) When a question is asked of a wntness on direct examination which is objected to, and the objec- tion is sustained, the ruling will not be reviewed AN OUTLINE OF EVIDENCE 593 on error, unless the exception taken shows \vhat it was proposed to prove. (9) When evidence is offered and properly rejected at the time, and subsequent developments in the case render it admissible, the ruling will rot be erroneous unless the evidence is offered again. (10) If it is desired that evidence already admitted should be ruled out, the party should, before the case is closed, point out the evidence specifically and move that it be taken from the jury. This rule is applied to evidence admitted condition- ally ; and also to answers wholly or partly inad- missible, in Avhich ease, the motion should be promptly made. (11) A motion to rule evidence from the jury em- bracing admissible as well as inadmissible evi- dence should be overruled ; if it is not, the party affected thereby should except to the exclusion of the admissible evidence, which should be clearly indicated. (12) When issues arise on several defenses, the plain- tiff should submit interrogatories to the jury to ascertain upon what issue the verdict is baged, if a general verdict should be found for the defendant. REAL EVIDENCE There are three kinds or forms of evidence: (1) Real Evidence; (2) Oral Evidence, and (3) Written Evidence. These three subjects will be treated in the order named. When the existence or observable qualities of a material object are in issue, or are relevant thereto, the court may allow the jury to inspect the object. This is what is usually called real evidence, sometimes autoptic proference ; it in- cludes all inspections except those of documents and other writings. In civil actions, the view by the jury of the property which is the subject of litigation, or of the place where a material fact occurred, is solely for the purpose of enabling them 594 APPENDIX to apply the evidence offered upon the trial. This is also the rule in appropriation and in criminal cases. In criminal cases, the accused has a right to be present at the view, but this is a right which he may waive. In ditch cases, on appeal to the probate court from the order and finding of a joint board of county commissioners, the jury may consider in evidence facts made known to them personally from an actual view of the premises. The trial-judge may, on application at a reasonable time, re- quire a party to submit to physical examination ; and the physician making it can not claim privilege, but may be required to testify. This rule applies to a plaintiff asking damages for personal injuries ; and if he refuses to comply with a proper order, the judge may dismiss the action or exclude his evidence. The rule is also applied to an action for breach of promise, where the defense is physical incapacity of plaintiff. In a criminal case, the court may not require such an exami- nation of accused; but he may submit without objection. A photograph may be admitted in evidence when it appears to have been accurately taken, and is proved to be a correct representation of the subject in controversy or of some subject incident to it, which subject can not be pro- duced, and the photograph is of such a nature as to throw light upon the disputed point. Photographs have been admitted — (1) Of a testator in a will case ; (2) Of an acrobat to show his skill ; (3) Of premises where an accident occurred; (4) Film photographs of a moving picture ; and (5) X-ray photographs to show the nature of an injury. A picture of a device need not be accurate or exact. If it shows some matter directly bearing upon the subject under investigation and will aid the jury, it may be admitted with an explanation of how it differs from that which is being investigated. AN OUTLINE OF EVIDENCE 595 Experiments made outside of court and not in the presence of the jurj% are sometimes explained by witnesses. Experiments are allowed before the jury outside of court by agreement of parties. Models of machinery for illustrative purposes are received in evidence. Appliances, such as a dictograph, may be admitted in evidence, with an explanation and a demonstration of its operation. The mere, fact that exhibits offered in evidence are of con- siderable bulk or weight does not excuse a failure to attach them to the bill of exceptions or to properly mark them for identification on review on the weight of the evidence. ORAL EVIDENCE Competency of Witnesses All persons are competent witnesses except those of unsound mind and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly. A person affected with insanity is competent under the fore- going rule, if it appears that he is able to apprehend the obligation of an oath. 'e* No person shall be disqualified as a witness in a criminal prosecution by reason of his interest, as a party or other- wise, or by reason of his conviction of crime. But such interest or conviction may be shown for the purpose of affecting credibility. In criminal proceedings, an accused person is a competent witness at his own request. No person shall be compelled in any criminal case to be a witness against himself; but his failure to testify may be considered by the court and jury, and may be the subject of comment by counsel. Religious Belief No one is rendered incompetent to be a witness on account of religious belief; nevertheless, every one offered as a witness in a court must take an oath or affirmation. 596 APPENDIX A person may be sworn as a witness if he believes in the existence of a Supreme Being, who will, either in this life or the life to come, inflict punishment for false swearing. An examination into his religious belief may be made for the purpose of affecting his credibility. Privileged Communications A clergyman or priest may not testify as to a confession made to him in his professional character, in the course of dis- cipline enjoined by the church to which he belongs. A physician may not testify as to a communication made to him by his patient in that relation, or his advice to his patient, except by express consent of patient, or when patient voluntarily testifies on the subject. An attorney may not testify as to a communication made to him by his client in that relation, or his advice to his client, except by express consent of client, or when client voluntarily testifies on the subject. This rule does not apply to criminal cases ; and disclosures can not be re- quired of the attorney without the consent of the accused. Husband or wife may not durinr^ the marital relation or afterward, testify concerning communications made by one to the other, or an act done by either in the presence of the other, during coverture, unless made or done in the known presence or hearing of a competent third person, although such person is not living at the time of trial. In criminal cases, the foregoing is the general rule unless: (1) in case of personal injury by one to the other, or (2) in case of failure to provide for, or the neglect or the cruelty of either to- their children under sixteen. But the presence or whereabouts of either shall not be an act. Husband and wife are competent to testify in behalf of each other in all criminal prosecutions; and to testify against each other in case of failure to provide for, n^^'lect of, or cruelty to. their child under sixteen. Such rplationship may be shown for the purpose of affecting credibility. The parties in an action for divorce or alimony, are competent to testify to the same extent that any other witness might. Competency of Party A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, AN OUTLINE OF EVIDENCE 597 or of a child of a deceased person or is an executor or administrator, or claims or defends as heir, oi'antee, as- signee, devisee, or legatee of a deceased person. The party designed 'to be excluded from testifying by this section must be a real and not a mere formal and unneces- sary party. Both the party disqualified and the adverse party referred to must be parties to the record, and ad- versely interested in the determination of the issues of fact. A person, who, if a party, would be restricted in his evidence under the foregoing rule, shall, where the property is sold or transferred by the trustee or successor of the deceased, be restricted in the same manner. A person who assigns his claim or interest shall not testify concerning any matter in respect to which he would not, if a party, be permitted to testify. Exceptions. A party may testify — (1) To facts occurring subsequent to appointment of trustee, or to death of predecessor in interest ; or (2) To contract made with an agent, when the agent is competent to testify ; or (3) Where a party or one having a direct interest testifies to transactions or conversations with an- other party, the latter may testify as to the same ; or (4) Where a party offers evidence of [oral] eonversa- sations or admissions of the opposite party, the latter may testify concerning the same conversa- tions or admissions ; or (5) To transactions with a partner or joint contrac- tor since deceased, when made in the presence of the surviving partner or joint contractor; or (6) When the claim or defense is founded on a book account ; or (7) Where a party, after testifying orally, dies, and the evidence is proved by their party on a further trial of the case ; or (8) Where a party dies and his deposition is offered in evidence : or (9) In aetions for r-nusing death ; rr r;9S APPENDIX (10) In actions or proceedings involving the validity of a deed, will or codicil. And when a case is plainly within the reason and spirit of the next three preceding sections (11493 to 11495 of the General Code), though not within the strict letter, their principles are to be applied. At the instance of the adverse party, a party may be examined as if under cross-examination either orally or by deposi- tion, like any other witness. If the party be a corporation, any or all the officers thereof may be so examined at the instance of the adverse party. The party calling for such examination shall not thereby be concluded but may rebut it by counter-testimony. Modes of Taking Testimony The testimony of witnesses may be taken (1) by affidavit; (2) by deposition, or (3) by oral examination. An affidavit is a written declaration under oath made without notice to the adverse party; a deposition is a written declaration under oath, made upon notice to the adverse party; and oral evidence is that delivered from the lips of the witness. An affidavit may be used to verify a pleading, to prove the service of the summons, notice, or other process in an action ; or to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon motion, and ' in any other case permitted by law. A deposition may be taken at any time after service of sum- mons ; and the deposition of any witness, whether a party to the action or not, may be so taken. Testimony taken by a referee or master in regular form, may be used as a deposition. A deposition may be read in any stage of the action or pro- ceeding or in any other action or proceeding upon the same matter between the same parties, subject, however, to such exceptions as are taken thereto under the provi- sions of the statutes. A deposition may be used in any civil action or proceeding: (1) when the witness does not reside in, or is absent AN OUTLINE OF EVIDENCE 599 from, the county; (2) when the witness is dead, or from age, infirmit}' or imprisonment is unable to attend court; (3) when the testimony is required on a motion; or (4) when oral examination of the Avitness is not required. In criminal cases, the court may grant a commission to take the deposition of a material witness for either side (1) when he resides out of the state, or (2) residing mthin the state, is sick or infirm or about to leave the state or is confined in prison. Number of Witnesses The general rule is that the testimony of one credible witness is sufficient to prove any fact, except in cases of treason, insurrection, perjury, seduction, divorce and alimony. In prosecutions for treason, misprision of treason, or insurrec- tion, the law requires two credible witnesses to the same overt act. In actions for seduction (see G. C. Sec. 13671) and for perjury, the evidence of one witness must be supported by other evidence. A divorce or a judgment for alimony will not be granted upon the testimony or admissions of a party unsupported by other evidence. The testimony of an accomplice should also be corroborated by other evidence or circumstances rather than convict upon his unsupported testimony. This applies only to an accomplice who testifies for the prosecution. Separation of Witnesses It is a good practice to have the witnesses examined separately. Where the witnesses in a cause have been ordered by the court at the request of a party to withdraw, and one of them remains in violation of the order and hears the testimony of the other witnesses, it rests in the discretion of the court whether he shall afterwards be permitted to testify in the case. He may be excluded ; but disobedience is usually punished as a contempt. Limitation of Number The court in its discretion may impose reasonable limits upon the introduction of cumulative evidence. 600 APPENDIX Evidence is cumulative which merely multiplies witnesses to such facts as have already been investigated, or only adds other circumstances of the same g'^eneral character. A reasonable limitation of the number of witnesses that may be called in proof of a fact, or of a single issue, is within, the disctetion of the trial-court. Former Testimony Testimony at a former trial, of a deceased witness, and of witnesses beyond the jurisdiction of the court, insane, etc., may be introduced in certain cases : A bill of exceptions certified by the trial-judge may be read in evidence by either party on a further trial of the case. When no bill of exceptions was taken, the evidence taken by an official stenographer may be read in evidence by either party on a further trial of the case as prima facie evidence. If no stenographic notes were taken, the evidence may be proved by witnesses who were present at the former trial. Testimony so offered shall be open to all objections. (See G. C. Sec. 11496.) The foregoing section does not apply to criminal cases (66 0. S. 407, 419). See Summons v. State, 5 0. S. 325. Facts Provable All facts necessary to be proved in any case may be proved by oral evidence, except — (1) Those facts of which a public record is required to be kept ; and (2) ThosQ matters which are required to be reduced to writing ; and (3) The terms of any agreement which has been re- duced to writing. However, this rule does not forbid the use of secondary evi- dence in a proper case to prove the contents of a writing; and it is not a violation of the statute of frauds. AN OUTLINE OF EVIDENCE 601 Direct-Examination Direct-examination. (By party calling the witness.) Leading questions, those that suggest the answer desired, are not allowed except to bring out introductory matter, or where party's witness appears hostile or unwilling, or when he omits a fact from want of recollection. Leading questions may be put to a witness called to contra- dict that certain things Avere said. But leading questions are improper when a witness is being impeached by showing contradictory statements. When a witness makes a statement on direct examination, the narration of an independent circumstance to fortify his own statement is improper and should be excluded. A witness may fortify his statement only when his recol- lection is tested on cross-examination. A witness may refresh his memory from a writing made at or near the time when the act or transaction happened, when he, by referring to the writing, is enabled to actually recollect the facts. Cross-Examination Cross-examination. (By adverse party.) This term imports a leading and searching inquiry of the witness for further disclosures; it has become an important test of credibility. It is limited to facts stated in the direct, and connected there- with, and may be extended to whatever the party calling the witness is required to prove. But a party should not introduce his own case when cross- examining the witnesses of his adversarj'-. A defendant has no right to go into the distinct matter of his defense before the plaintifiP has rested. The denial of the right to a fair and proper cross-examination is reversible error, thongh the cross-examiner does not disclose the answers which he expects to elicit. Disparaging- Questions A witness may be asked on cross-examination any question which tends to test his accuracy or credibility, or to im- pair his frf'dit, by showing his bad character. g02 APPENDIX A witness may be interrogated on cross-examination concern- ing facts which affect his credibility by showing bias in favor of the party who called him as a witness, or by show- ing prejudice against the adverse party. The. criminal record of a witness may be shown on cross-ex- amination to affect credibility. And his reputation for truth may be proved to rebut the imputation. The court may prohibit an oppressive or unreasonable cross- examination on these and other collateral facts. The limits of such cross-examinations rest in the sound dis- cretion of the court. When such questions are collateral and immaterial, and rele- vant only to test credibility, the answers can not be con- tradicted, except — (1) When he is asked if he has been convicted of an infamous crime, and he does not admit it, and (2) When he is questioned with a view of showing bias, interest, or enmity toward the party, and he denies it. Privilege Against Incrimination And a witness may refuse to answer and will not be punished for contempt, when the answer will tend to incriminate him ; but the witness is not the judge of the effect of an answer. Impeachment of Witnesses A party may not impeach his own witness ; but a witness may- be impeached by the adverse party in two ways : (1) By proof that his general reputation for truth is such as to render him unworthy of belief, but not by proof of specific acts. (2) By proof of prior contradictory statements made outside of court. The time and place must be stated, and the person present named, and the witness must first be given an opportunity to explain, affirm, or deny. The statements must not be collateral and immaterial to the issue. AN OUTLINE OF EVIDENCE 603 A witness mar be rehabilitated — By explaining away discrediting facts; and When character is attacked, by evidence of good char- acter. When impeachment is by evidence of prior incon- sistent statements, the witness may be reha- bilated by proof that the alleged inconsistent statements never were made ; but not by showing that prior consistent statements were made. Re-Direct Examination This is ordinarily limited to new matter brought out on cross- examination and to explanations. A witness can not be examined concerning new matter not referred to in the cross-examination, as to which he might have been exam- ined in chief. Any relaxation of the rule is but an exer- cise of discretion and not reviewable. After examination of a witness by both sides is once concluded, he may not be recalled without leave of court. It is com- mon practice for counsel, and permitted by the courts, to recall witnesses at almost any stage of the case, for the purpose of cross-examination, particularly where it is desired to contradict a statement of the witness. Facts and Opinions The general rule is that a witness may only testify to those facts which he knows of his own knowledge — those which are derived through his own senses or perceptions — and not to inferences or conclusions. A witness may state his impression. A witness can not be required to depose positively, when his recollection is not distinct and certain. But the impression of a witness, to be admi.ssible as evidence, must not be the result of a process of reason and judgment. Opinions of Non-Experts In matters within the common observation and experience of men, non-exports may, in cases where it is not prac- ticable to place before the jury all the primary facts upon 504 APPENDIX which they are founded, state their opinion from such facts, where such opinions involve conclusions material to the subject of inquiry. In such cases, the witnesses should qualify by showing that they have some knowledge on the subject, and should, so far as may be, state the primary" facts which support their opinions. But when the matter is one within the common knowledge of men of ordinary information, and the jury is just as competent as the witness to form an opinion from the facts that can be described, the jury must be allowed to draw its own conclusions. Opinions of Experts And the opinion of a witness vrho is an expert is received where the nature of the inquiry involves a question of science or art, of trade or business, or of professional or mechanical skill, and is such that the jurors are incom- petent to draAv their own conclusions from the facts, with- out the aid of persons whose skill or knowledge is superior to their own. The witness should first qualify as an expert by stating his means of knowledge which enables him to form a correct opinion ; and it is for the court, in its discretion, to decide whether the witness is a competent expert. It is proper on the examination of an expert, even on his examination in chief, to require him to state the reasons for his opinion. The opinion of an expert may be based upon facts within his personal knowledge, or upon facts stated to him hypo- thetieally while on the stand. In the latter case, the question must be based on facts wliich the evidence tends to prove. However, in cross-examining an expert witness, questions may be put Avhich are based upon some other hypothesis which the cross-examiner hopes to establish by evidence. Full latitude should be allowed in the cross-examination of opinion witnesses in order to ascertain the basis, and test the soundness, of their opinions. AN OUTLINE OF EVIDENCE 605 Opinions on the precise issue of fact which the juiy is sworn to determine are incompetent. Witnesses may testify as to facts of such evidential value as would assist the jury in arriving at its conclusions upon the determinative ques- tions of the case. It is proper to admit the testimony of experts as to the hand- Avriting of a disputed paper by comparing it with other papers proved to have been w^ritten by the person claimed to be the writer of the disputed paper, although such experts have no previous knowledge of the handwriting of the party. A non-expert must qualify by showing an acquaintance with the handwriting. A medical expert may give his opinion on questions of mental capacity and physical condition; and a non-expert may do the same to a very limited extent. Opinion evidence is also received when it is material to know: (1) The value of, or damage to, property; (2) The value of professional or domestic services; (3) The chemical analysis of anything, such as water or blood; (4) The mode of construction or operation of machin- ery or appliances ; (5) The rate of speed of trains or automobiles; or (6) The disposition and habits of animals. PRIVATE WRITINGS Primary Evidence It is a rule that a party offering to prove any matter which is in writing is bound to produce the writing when it is the best evidence of the matter sought to be proved. The writing would be primary evidence, and all inferior evidence w^ould be secondary. The purpose of the rule is to prevent tlie introduction of evidence when the court is satisfied tliat l)etter evidence is in the possession or under the control of the party, and he has not given a sufficient excuse for his failure to produce it. 606 APPENDIX But where the fact to be proved is collateral to the writing, oral evidence may be admitted. The existence and trans- fer of a writing, but not its contents, may be proved without producing it. And where a question in regard to a contract does not call for its terms, but for what was done under it, the evidence should be admitted. Secondary Evidence Secondary evidence of the contents of a writing is admissible when the absence of the original is accounted for in one of the following ways: (1) It is the general rule that secondary evidence is admissible when the original is beyond the juris- diction of the court. (2) The results of an examination of many books of account, may be proved by qualified persons if the examination can not be conveniently made in court. (3) Secondary evidence is admissible when the origi- nal is a record in the custody of a public officer; and (4) When the original is a record or a writing, of which a certified copy is expressly made evidence by statute ; and also (5) When the original is of such a nature that it can not conveniently be produced in court, such as inscriptions. (6) When the original of a writing is lost and proper search has been made for it, secondary evidence is admissible. The same rule applies to a de- stroyed instrument; and the mutilated parts of a paper in evidence may be proved in the same manner. (7) Secondary evidence will be admitted when the original is in the possession of the adverse party, and he fails to produce the same after notice. AN OUTLINE OF EVIDENCE 607 Notice to Produce A notice to produce a pai)er must be reasonable and should be served before the trial. There are three well-established exceptions to this rule, and in which notice to produce is not necessary: (1) Where the instrument to be produced and that to be proved are duplicate originals; (2) Where the instrument to be proved is itself a notice, such as notice to quit, or notice of the dis- honor of a bill of exchange; (3) AVhere from the nature of the action the defend- ant has notice that the plaintiff intends to charge him with possession of the instrument. Order to Produce The production of private writings may be secured by a sub- poena duces tecum. The subpoena may direct the person it names to bring with him any book, writing, or other thing under his control, which he may be compelled to produce as evidence. When books and writings pertinent to the issue are in the possession or power of the parties — (1) The court may, on motion and reasonable notice, order the parties to produce them, if material and necessary to the case of the one filing the motion ; or (2) Demand may be made of the adverse party for an inspection and copy of a book, paper, or docu- ment containing evidence in the action or de- fense, with which the adverse party must comply within four days ; (3) If the party in possession alleges that the Avriting, or a part thereof, is of mere private interest, or is of such nature that neither of above demands should be allowed, the court may, on motion of either party, direct a private examination by a master. A party may be required to deliver to the other party a copy of an instrument which he intends to offer in evidence, or of any whereon the action or defense is founded, ex- cept one filed with a pleading as recpiired by law. 608 APPENDIX Proof of Execution Execution of a private writing must first be proved, if not admitted. Before trial, a party may exhibit to the adverse party any writing material to the action and request a written ad- mission of its genuineness ; and if he fails to give it within four days, cost of proof may be taxed against him. When the adverse parly denies execution of an attested writ- ing, other than a will, the following is the best evidence : The testimony of the signer of the instrument ; or The testimony of at least one of the witnesses ; or When acknowledged, the testimony of the certifying officer. When the adverse party denies execution of an unattested writing, the following is the best evidence: The testimony of the signer of the instrument; or The testimony' of a person who saw the writing exe- cuted. In the case of both attested and unattested writings, the evidence of the handwriting and any other relevant evidence would be secondary. If execution of the instrument is not directly in issue, but comes incidentally in question, its execution may be proved by any competent evidence without calling the subscrib- ing witnesses. No other evidence of execution need be given — ■ If the adverse party has admitted its execution; or If it is produced from his custody and recognized by him as genuine ; or If it is more than thirty years old, and is produced from the proper custody, that is, the place where papers of its kind are usually deposited ; or When the original is recorded pursuant to law, and a certified copy is expressly made evidence by statute. AN OUTLINE OF EVIDENCE 609 Statute of Frauds In regard to agreements within the statute of frauds, the following rules should be kept in mind: (1) They should contain the essential terms of the agreement. (2) They must be signed by one of the parties to be charged and may be accepted by the other party. (3) The form is not material ; it may even be a letter, or it may be contained in a number of writings. (4) The statute does not forbid the use of secondary evidence. When the ground is laid for it, the contents of the writing may be sho^vn by oral evidence ; but an oral agreement may not be shown. Account Books The general common-law rule requires that the entries shall be contemporaneous with the facts to which they relate, and shall be made by parties having personal knowledge of the facts, and be corroborated by their testimony, if living and accessible, or by proof of their handwriting if dead, or insane, or beyond the reach of the process or commission of the court. If the claim or defense is founded on a book-account, the party's book-account is competent evidence against the debtor, or his legal representative, when it is testified by the party, or by any competent witness, that the book is the account-book of the party, that it is a book of original entries, that the entries therein were made by himself, or by a person since deceased, or by a disinterested person not a resident of the county. The book of original entries must be produced. A book- account should be proved by the day-book. However, the ledger is competent evidence of an account when the day-book has been destroyed or lost, and it is shown that the entries in the day-book were correctly transcribed to the ledger. Money is not the proper subject of book-account, especially sums of considerable amount; though small sums passing between the parties in the course of business may be charged on account. glO APPENDIX Sales slips may be admitted as original entries made in the usual course of business. They are admissible when they are posted by carrying forward the total from one slip to another, and no other account is kept of the trans- actions. PUBLIC WRITINGS Foreign judicial records are proved by the attestation of the clerk and the seal of the court annexed, together with a certificate of the judge that the said attestation is in due form. The acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, territory, or country affixed thereto. Official publications of foreign statutory law are admitted as presumptive evidence of such law. Foreign common law may be proved as facts by parol evidence ; and the re- ported decisions may also be admitted as presumptive evidence. The session laws published b}^ this state are prima facie evi- dence of the correctness and authenticity of the laws as therein printed. The original enrolled act is the best evidence. The printed copies of the by-laws or ordinances of a corpora- tion, published under its authority, and transcripts certi- fied by its clerk, shall be received in evidence the same as originals. Copies of papers, books and records on file or deposited by virtue of law in most executive and county offices of this state, when properly certified, are competent evidence and have like force and effect as the originals. In proving a judicial record, as where the defense of former conviction or res judicata is interposed, it is proper to admit the record of the former trial or a certified tran- script thereof. Where no complete record has been made, the journal and docket entries, and all the files and papers properly con- nected with a case, are admissible in evidence. AN OUTLINE OF EVIDENCE Ql^ And if the original papers are lost, parol evidence may be admitted; but an abstract thereof is not competent with- out proof of its correctness. Original papers are received as evidence of their contents ; but they must be shown to be originals. Exemplified copies under seal are also admissible. A copy of the record of instruments of writing duly certified by the county recorder are received as prima facie evi- dence of the existence of such instrument, and as conclu- sive evidence of the existence of such record. A transcript or certified copy is not competent evidence of facts not required by statute to be recorded. And mat- ters not required to be of record may be proved by oral evidence. Courts will not compel the production of the original records of any public officer; but when produced, courts never re- ject them as secondary. Originals are good evidence when copies would be admitted. "When originals are offered, they must be identified. "Where part of a writing is proved by one party, the other party may introduce all other parts which explain, qualify or rebut the statements proved by the part of the writing first introduced. A duly enrolled bill may be impeached by the journals by showing that it had not received a constitutional majority. A road record may be impeached by showing that no notice had been given, and that the petition was not signed by the number of freeholders required by statute. The minutes of a taxing board are not conclusive, and the real facts may be shown by parol unless otherwise pro- vided by statute. And parol evidence will be received to correct errors on the duplicate. Records of elections, certificates and ballots may be impeached for fraud. Mistakes may be corrected and omissions sup- plied by oral evidence. A regular statutory certificate of acknowledgment of a mort- gage may be impeached for fraud. A grantor may, even as against an innocent party, show that he never signed or acknowledged the mortgage. Q12 APPENDIX The legal effect of a judgment can not be varied by evidence of extrinsic facts occurring before its rendition. If the language imports that the notice required by law had been regularly given, evidence will not be received to con- tradict it. However, when a judgment is made the foundation of an action, it can be shown that the defendant was not served with process, though it be in contradiction of the record. The court has power to correct not only clerical errors, but also such errors as may arise from any fraudulent or improper alteration of its files or records, and also to enter judgment nunc pro tunc. And in order to make such correction, the court may hear evidence and act on the proof. And an ambiguous entry may be explained by parol evidence. And such evidence is admissible to identify the parties. The testimony of jurors will not be received to impeach their verdict by showing misconduct of other jurors in the jury-room until such misconduct is shown aliunde. Affidavits of jurors stating that they misunderstood the charge, or that the jury adopted the average method of arriving at the amount of their verdict, or determined the degree of homicide by lot, will not be received on motion to set aside the verdict. PAROL EVIDENCE General Rule Parol evidence is not admissible to contradict or vary the plain terms of a written agreement or the contract implied from the instrument. The rule applies only to controversies between the parties to the instrument and their privies. Strangers to the instru- ment are not bound by the rule. Whenever a right is vested, or created, or extinguished by written contract, parol evidence is not admissible to alter or contradict the legal and common-sense construction of the instrument. AN OUTLINE OF EVIDENCE 613 A release can uot be contradicted or explained by parol evi- dence because it extinguishes a pre-existing right. But no receipt can have the effect of destro^'ing any subsisting right. It is only evidence of a fact. A receipt for prop- erty or money may be explained by parol evidence. A deed can not be varied by parol in so far as it is intended to pass a riglit. The consideration clause of a deed can not be contradicted so as to affect in any way the purpose of the deed, that is, its operation as a conveyance. This rule prevents the use of parol evidence to change a deed of purchase to a deed of gift. Exceptions The principal exceptions may be briefl}- stated as follows : Fraud and Mistake ; Conditional Delivery ; Subsequent Contract ; Incomplete Writing and Custom ; Ambiguity ; Surrounding Circumstances; Relation and Identity of Parties; and the Subject-matter. These will be outlined in the order named. Oral or extrinsic evidence is admissible to show the existence of fraud, duress, illegality, mistake, or want of capacity. In an action for fraud or mistake, the acts done, or pro- cured to be done by the parties, and which tend to prove the fraud or mistake, are admissible. Parol evidence is admissible in an action between the parties to show that a written instrument, executed and delivered and absolute on its face, was conditional and was not to take effect until another event should take place. This is a condition precedent. The rule Avould not be applied in case of condition subsequent. Subsequent to the execution of a written contract, it is com- petent for the parties by a parol contract, founded on a new consideration, either to abandon, Avaive oi- nuniil the prior contract, or vary or qualify the terms of it in any manner. This may be sliowii l)y j);iro]. The parol evidence rule does not apply (1) where express reference is made to a ])arf)l contract in the writiii-^'; or (2) where the writing does not purport 1o lie ;i (•()iiii)Ii"tc 614 APPENDIX expression of the contract, or evidently appears to express only some part of it; or (3) where the verbal transaction may be a different one, collateral to the one in writing. The proposed evidence should not contradict the terms of the writing. An express trust engrafted on an absolute deed may be shown by parol evidence. Parol evidence is admissible to show that a deed is a mort- gage, notwithstanding the deed appears absolute on its face. An absolute assignment may be proved by parol evidence to have been given and accepted as security for a debt. The contract between principal and surety is not necessarily contained in or evidenced by the contract with the credi- tor, but may be, and usually is, collateral ; and it may be proved by any competent evidence. Parol evidence of a usage or custom is admissible to annex incidents, as it is termed ; that is, to show what things are customarily treated as incidental to the principal thing to which the instrument relates. The law implies a promise in conformity with a usage on the subject of a contract, when there is no express stipula- tion to the contrary. A usage or custom can only be used to explain or aid in the interpretation of a contract or liability existing independ- ently of it. A custom is not admissible either to contradict or alter the legal import of a contract, or to change the title to prop- erty contrary to law. A custom must not be unjust, unreasonable, oppressive or in conflict with an established rule of public policy. A custom should be long continued without interruption, so that it may be presumed that it was known to the parties. But it may be of recent date if well known. Only witnesses who are experienced in the trade can testify to the custom existing in that trade ; and their testimony is not to be given as a matter of opinion. In the case of a patent ambiguity, that is. one appearing on the face of the instrument, a reference to matters dehors AN OUTLINE OF EVIDENCE 615 the instrument is forbidden as a general rule. It must, if possiljle, be removed by construction. But when an ambiguity arises from extrinsic matters, or when the object or extent of the instrument can not be deter- mined from the language used, parol evidenve is admis- sible to remove that ambiguity and ascertain the object upon which it was designed to operate. An ambiguity arises where words apply equally to different things, and one and not the other must have been intended. It is not an ambiguity where by the language either was intended. Upon a like principle stands the case of a contract to do a thing when there are two usual ways to do it. The party upon whom performance devolves may adopt either. Where the language of a contract is of doubtful import, it is proper to ascertain the circumstances which surrounded the parties, and the object intended to be accomplished, in order to give proper construction to its words and to determine its legal effect. The real meaning intended to be expressed by the language of a deed must be sought for ; and in case of doubt, it may be read in the light of the circumstances surround- ing the parties at the time of execution. Subsequent transactions under or in pursuance of the contract, or with the contract in view, may be looked to for the purpose of discerning the interpretation the parties have put upon its doubtful provisions. Evidence may be introduced tending to show the relations of the parties just prior to and at the time of entering into a contract. Parol evidence is sometimes admitted to identify the parties to a written instrument. Extrinsic parol evidence is admissible to give effect to a writ- ten instrument by applying it to its proper subject-matter. To enable the court to ascertain the subject-matter \vliere there is doubt, parol evidence, which neither alters nor adds to it, is admissible. GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] A Abortion — Dying declarations in, 170(i). Facts sliowing absence of intent, 160(b). Facts state must prove, 66(f). Negative allegations, 66(f). Opinion of woman as to ber condition, 323(g). ^Yoman an accomplice, 25!) (h). Abstract of Title- Admission written on, 12(b). Accessory — Evidence admissible against principal, 212(g). Accident — Causes of, opinion. 363(c).(d). . Condition of tracks at time of, 105 (d). Defective condition of macbine after, 120 (i). Macbine operated long time witbout, 148 (i). Question of signals. 04. Similar, wben condition same, 131(e). Station used long time witbout, 148(j). Accomplices — Cross-examination of, full and liberal, 30()(d). Evidence admissible against principal, 212(g). Feigned, 259(b). Testimony of, 250. corroboration of. 250(a). court advising jury, 250(b). court aiding, corroboration. 250(d). degree of corroboration, 250(e) et seq. feigned accomplice, 250(b). in criminal miscarriage, 250(b). in sexual crimes, 250 (li)- jury disobeying riile, 250(c). witness for prosecution, 250 (i). witness of accused, 250(i). 617 618 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Accord and Satisfaction — Good as a defense, when, 183(d). Mutual promises to perform, evidence, 183(d). Account — Allegation of amount due, 5(b). Evidence of amount due, 5(b). Immaterial allegation in, 115(e). Account-books — Account must be legal, 385(c) et seq. Accounts not in books, 390. Accounts on sheets of paper, 390 Admissible as an admission, 380(a). Admission of correctness. 3S6(e).(f), 389(a). Amount due, evidence. 5(b). - As an admission. 170(b). As an exception to hearsay, 171(c). Between landlord and tenant, 389(e). Cash entered by agreement, 387(c). Cash entries allowed, when, 387(c),(d). Common-law rule, 384. Entries contemporaneous, 384(b). 3Sfi(e). Entries in a pass-book, 380(e). Entries of sums of money, 385(d), 387. Goods on wliose credit. 388(a). Identified as original entries. 386 (a). Loss of day-book. 3Sfi(c).(d). Of creditor to show jiaynient of wife's debt, 389(c). Of firm after dissolution. 380 (d). Of firm showing fraud of member. 380(b). Of third party, hearsay. Ifi3(b). Of tliird persons admitted, when. 380. Original entries in, 380. Parol evidence to vary, 388. Party contradicting, 388(a). Party cross-examined as to mistakes. 384(d). Party may testify to, 385(a). Proof by day-book, 386 (b). Proof by ledger, when, 386(c). Proof of handwriting, 384(b). Sales slips admissible, when, 300(b). Secondary evidence of, 367(b), 368. Showing bad reputation of, 384(d). Special contract, dealings on account, 387(e),(f). Statutorv rule, 385. GENERAL INDEX 619 [Numbers are to sections; letters are to paragraphs.] Account-books — Continued. Stub of check-book as account, 387(g). To show fraud in transaction, 217(b). Verified by witness, 3S4(c). Witness called by adverse party, 384(c). Accused — As a witness, privilefjed communications, 268(f). Attempting to bribe an officer, 128(i). Attempt to poison another, 133(c). Attempt to shoot another, 133(b). Brother of, oflFering to compound crime. 128(1). Burden to show exculpatory facts, 80(b). Burden to show facts exempting, 80(a). Character of, 140(b). Character of deceased, 141(f). Commission of other offenses. 133 fa). Conduct of, remoteness, 130(e). Cross-examination, 300a. as to a different story, 300(b). to show familiarity with firearms, 300(c). Declarations of otliers. 200. Defense of "not guilty," 78 (a). Denying intent, effect of, 78(b). Failed to pay other debts. 133(d). Failure to testify, 264(c),(d). Flight of, 128(g). Guilty of other fires, 133(g). Guilty of other rapes. 133(h). Indicted for other offenses, 133(f). Introduces subject of character, 140(c). Made prior illegal sales, 133(e). :Must prove defenses, when, S0(b). Occupation of, 140(c). Opinion of wife as to guilt, 130(k). Papers on desk at time of arrest, 264(h). Physical examination of, 249(h). Presence of, at view, 247(c). Recognition of, corroboration, 200(g). Refused to make other sales, 133 (o). Resisting arrest, 128(g). Talking ahotit way to kill, 128(f). Threats of, against prosecutor, 128 (m). Witness against himself, error, 264(c),(g). Witness at his own request. 264(c),(c). 620 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Action — Length of time as a bar to, 44(e). Acts — Of conspirators, 213. Of party, presumption, 40(e),(f). Acts (Legislative) — Enrolled bill conclusive, 393(h). How proved, 303. Impeachment of, 393(e) et seq. Read three times, 393(c). Administrator — Admission of, as to claim, 206(c). Admits capacity, when, 181 (m). Presumption of payment by, 38(d). Admissibility— (See Evidence.) Decided by court, 90(j). Preliminary proof, jury, 90 (k). Admissions — (See Judicial Admissiotis.) Account-book as, 179(b). Amount of insurance, value, 178(f). As hearsay, 16.5(a). As to former marriage, 178 (m). Attempt to prove alibi not an, 127(g). By acquiescence — administrator admits capacity, 181 (m). by accused and accomplice, 181(g). by accused after in custody, 181(h),(i). by accused to third persons, 181(f). explanation of silence, 182(g). failure to speak, 181(c). general rule, 181(a). grounds for divorce as, 181(e). judgment by default as, 181(d). on charge of insane persons, 181 (j). received with caution, 181(1)) testimony that he never denied it, 181 (k). where knowledge is uncertain, 1*^1(1). By failure to offer evidence, 182. GENERAL INDEX 021 [Numbers are to sections; letters are to paragraphs.] Admissions — Continued. By obtaining government license, I7n(d). By prisoners, 178 (i). By silence, 181. By written contract of partners, 171) (f). By writing not stamped, 179(e). Construed with judicial admissions, 12(a). Coroner's finding as, 179(a). Cross-examination as to other. 180(b). Estoppel by, 177(c). Evidence in writing, signed, 179(c). Falsity of reason for. 178 (n). Former testimony of party, 178(a). General rule, 177 (a). In foreign language, 178(h). Inventory of estate as, 206(b). Mode of testifying to, 178 (k). Of administrator, 206(c). Of agents, verbal act, 201, 202(d). Of co-heir against another. 212 (j). Of corporate agents, 207. Of directors, 207(a). Of fraud against creditors, 178(1). Of ini)ired pei-son since deceased, 211(d). Of joint paj-tics. 212. Of mutual affection, 178(d). Of owners in common, 212 (i). Of partners, 209. Of policyholders. 205(b),(c). Of principal against surety, 212(c),(d). Of public agents, 208. Of residence by card, 178(b). Of stockholders. 207(a). Of value of services, I78c. Proved by any one. 177(b). Eebuttal by later declarations, 180(d). Rebuttal of, 178 (n). Rebuttal of admission by wife. 180c. Stated in charge. 92(f). Through interpreter. 178 fg). To physicians named liv court, 178 fj). Truth of reason for. I7«(n». Value of property, 178(f). Vahie of services. 178(c),(e). Wliole conversatiiiu admissible. 180. Whole of written one admissible, when, 183(e). Work done gratis, 178(e). 622 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Adultery — Between teacher and pupil, evidence, 133 (j). Inferred from facts, 118 (j). Other sexual acts as evidence, 133 (i). Advancement — Evidence to rebut presumption of, 126(1). Evidence when note is given, 71(c). Presumption of, 29(a). Relations of parties considered, 134(h). Adverse Claimant — In possession — admission of title in another, 210(i),(j). offer to buy, effect of, 210 (i). Affection — Admission of mutual, 178(d). Declarations admitted to show, 162(f). Affidavits — Admitted for one purpose, 381(d). Not used in contempt proceedings, 2.')4(d). Not used in jury trials, 254(b). Not used on issue of payment, 254(c). Of subscribing witness to will, 254(e). On motion to dissolve injunction, 254(f). Stating evidential facts, 254. To show prejudice, 94(f). Used in incidental matters, 254(b). Uses of, 254(a). Affirmative — Side has open and close, 55(a). Age— And capacity for crime, 28(a). Agency — Burden on defense of dual, 47(e). Declarations of agent, 201(c). Holding out as agent, 201(c). Issue of, opinion, 335(d). Ratification of, proof, 201(d). Reasonable inference of, 54(e). Statements at time of act, res gestae, 196(g). Verbal contract of, 74(b). GENERAL INDEX 62:? [Numbers are to sections; letters are to paragraphs.] Agent — (ISee Ad7)iissio}is and Declarations.) Acts and declarations of son, 209(e). Admission of without authority, 207(c). Admissions bind principal wlien, 201 (a), (b). Business ontrips of, 171(b). Contract of, for realty, 382(i),(j). Declarations of instructed, 202(a). Declarations of, to prove agency, 201(c). Defense of no authority, 51(e). Instructions to, primary evidence, 366(e). Real estate, services, 354(c),(d). Written authority of, contract, 382 (k). Written authority, parol evidence, 418 (i). Age of Consent — Presumption in regard to, 28(d). Agreed Case — No pleading and evidence, 10(b). Eecord on review, 10(b). Agreed Statement — By mistake, 11(b). Dispenses with evidence, 10(a), (b). Facts — determined by, 103(b). in supreme court, 11(c). part of record, 10(b), (c). Retraction of, 11(a). Agreement — Changing rules of evidence, 13(c). Essential terms, statute of frauds 382(d). Signed by one of parties, 3S2(1). To certify as surety, 13(d). W^ritten, statute of frauds, 382. Aiders and Abettors — Evidence admissible against principal, 212(g). Alibi- Attempt to prove, admission, 127 (g). Error in charge, 70(d). Of another, 126(f). Preponderance rule, 70(a). To prove identity 127 (g). 624 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Allegations — Admitted by one party, 3(d). Amount due on account, 5(1)). As to value, denial, 4(b), 5(a). Charge as to, 95(a) .' Conclusion of law, 116(d). Denied by one party, 3(d). Effect of, determined how, 3(b). Essential to recovery, 115(c). Evidence different from, 114(b). Immaterial, illustrations of, 115. Inconsistent, effect of, 3(c). Inserting material, by amendment. 111. before or after judgment, 111. Material, denial of, 4(a). ]\Iaterial, must be proved, 115(a). Must agree Avith proof, l()G(a). Must be denit'd v. ben, 4(a). Needing no dciiir.l. 4(bi. Need not prove imuiateri;;]. 115(b). Of negligence, 106(g). Of ownership wanting, A\nivcr, 112(c). Proved under indefinite pleading, 106(b). Wanting, defect cured, 112 (d). Almanacs — To show time of sunrise, etc., 172(a). Ambiguity — In writings, 444. Amendment — Adding elements of damage, 110(e). After immaterial variance, 107. After material variance, lOS(a). After verdict, 110(c).(g). And statute of limitation, 114(b). Asking for punitive damages, 110(c). By inserting material allegations. 111. before or after judgment, 111. Changing malicious prosecution, 110(b). Conforming pleading to facts, 110. Evidence admitted without objection, 108(e). General rules for, 114(b). In furtherance of justice, 110(a). Ko substantial change, 110(a). GENERAL INDEX 625 [Numbers are to sections; letters are to paragraphs.] Amendment — Continued. Of allegations substantially, 114(b). Of defoetive petition after verdict. 111(b). Of defertive petition, record, 108(f). Of petition available, when, 110(h). On failure of proof, 114(b). On showing by adverse party, 108(b). Presumption in favor of, 110(d). States a new cause of action, when. 111(c). Time of, after argument, 110(b). Time of, after motion for new trial, 110(d). Time of, at close of evidence, 110(e). Time of, before or after judgment. 110(a). To conform to special findings, 110(d). To plead limitations, 7(b). When evidence excluded, 108(d). When variance is great, 108(c). Amount — Claimed on contract, 5(a). Due on account, 5(b). Answer — Defective, no objection, llG(c). Denial necessary to new matter. 2(h). Evidence admissible under indefinite, 106(d). Issue made by denial in, 1(a). On defective novation, no objection, 116(e). Proof of, by sworn copy, 412(f). Without denial, no objection, 116(c). Appliance — Comparing one with others, 126(c). Operation of, expert, 360(a). Applicant — In special ])n)(eedings, burden, S9(a),(b). Appraisement — Admitted to prove contents when, 391(d); Appropriation — Limitation of witnesses, 262(e), View of premises, 98(f), 246. Arithmetic — Noticed as a stud^-, 25(e). 626 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Arrest — In good faith, 324(b). Justification, burden of proof, 47(c). Resistance, 128 (g). Arson — Employment of principal, res gestae, 216(a). Order of evidence, 120 (g). Kecord in co-defendant's case, 413(b). Art- Judicial notice of facts of, 24. Assault — With intent to rape, 154(b). With intent to rob, 154(f). Assault and Battery — Character of plaintiff', 141(a). Preponderance rule in, S4(d). Wealth of defendant, evidence, 134(d). • Assessments — Burden on svxit to enjoin, S9(fl),(e). Parol evidence to sliow irregularity, 399(g). . Presumption of regularity of. 36(c). Secondary evidence of. 366 ( a ) . Assignment — Between co-plaintiffs, adversary, 186(a). Incomplete contract, parol, 436(b),(c). Associates — Character of immoral women, 143(b). Attachment — Burden of proof, S7(a).(b). Burden to show exemption, 87(c). Attorney — Admission for person in prison. 8(a). Admissions in argument, 14(c). Admissions in opening statement. 14(d). Authority during trial. 14(a). Authority presumed from appearance. 7(e). GENERAL INDEX 627 [Numbers are to sections; letters are to paragraphs.] Attorney — Continued. Fee of, without evidence, 98(h). Power to waive objections, 14(a). Value of services, 356. expert opinion, 356 (a). hypothetical questions, 35(5. opinion based on personal knowledge, 356(c). Attorney and Client — Privileged communications — accused as a witness, 268(f). as to future wrong-doing, 268(e). attorney as a subscribing witness, 268(i),(j). • attorneys knowledge outside relation, 268(h). client as a witness, 268(a),(c). client may waive privilege, 268(a),(c). counselor not admitted to practice, 268 (k). report of accident for attorney, 268(g). third person present, 268(d). waiver of privilege, 268 ( a), (c). Auction — Price of property at, l.'iO(l). Auditor of County — Judicial admission of, 8(b). Proceedings of, 37(b). Auditor of State — Certified copies of files, 396(c). Authority — Issue of, (ij)inion, 3.35(d). Automobile — Speed of, opinion. 361(e),(f), Autopsy — Report of, not evidence, when, 334(e). Autoptic Preference — Dcfiiiil ion of, 243(a). Averments — (See Allegations.) 528 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] B Bank — Writings of, in behalf of itself, 186(d). Bank Notes- Knowledge of forgery, 146(f). Bankruptcy — Notice of proceedings in, 146(b). Barrels — • (Similar manufacture of, 131(b). Bastard — Hhovra to jury to identify father, 127(d), 244(a). Bastardy — Examination lost, parol, 415(c). Order of evidence, 120(e). Belief— Of a party — arrest in good faith, 324(b). creditor relied on statement, 324(e). employe relied on promise, 324 ( d ) . in malicious prosecution, 324(b). party affected by threats, 324(f). question of prudence or good faith, 324(a). taking possession in good faith, 324(c). Bigamy- Negative allegations, proof of, 66(d). Prima facie evidence as to former marriage, 66(d). Bill of Exceptions — Agreed facts, 10(c),(d). Bastard child, 244(a). Experiments, 251(a). Models, 251(e). Moving picture, 250(f). Photograph. 250(b). Proving former testimony, 174(a). Real evidence, 244(a). Showing ordinance, 20(d). View of premises, 246(c). X-ray, 250(h). GENERAL INDEX 629 [Numbers are to sections; letters are to paragraphs.] Bill of Exchange — Declarations by holder, 211(g). Parol evidence excluded, 423(g). Bill of Lading— As a receipt, parol to vary, 426(e). Jus disponendi, evidence, 426 (j). Meaning gathered from instrument, 426(b). Meaning of terms, usage, 441(b). Parol evidence excluded, when, 426. Parol to vary, consignee, 426 (k). Blasting — Evidence of negligence, 126(i). Blood- Chemical analysis of, 357(f). Bloodhound — Judicial notice of use of, 25(b). May identify burglar, 127(e). Board — Consent of, in writing, as board, 450(f). Member as agent of, 208. (e),(f). Boats — Specific instances of sinking, 131(a). Bond (Negotiable) — Execution denied, primary evi(h»nce, 367(a). ■ ISale at premium noticed, 25(f). Bond (Official)— Execution, where proved by certified copy, 380(e). Presumption of regularity of approval, 36(d). Bond (Surety) — Evidence to correct mistake, 421(d). Parol evidence excluded. 421. Referred to contract, evidence, 381(f). Referring to judgment, correction, 421(c). 630 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Books — Abstracts of, secondary evidence, .368. Copy and inspection, 375. Entries in, principal and surety, 212(e). Examination by master, 376. Inspection and copy, 375. Inspection refused, 375(d). objection to evidence, 375(d). punishment, 375 ( d ) . Order to produce, 374(b) et seq. at trial or hearing, 3i74(f). when criminating, 374(g). Partner inspecting partnership, 37.5(h). Part offered in evidence. 375(f). Sent to jury, small part in evidence, 381(e). Boundary — Proof by witness, 403(h). Reputation as to, 168(a),(d). Vendor pointing out, res gestae, 196(f). Boycott — Effect of, res gestae, 196(h). Brake Appliance — Operation of, expert, 360(b). Stopping of car, expert, 360(c). Brakeman — Duties of, opinion, 359(c). Breach of Promise — Declarations of purpose, 196(b),(e). Physical examination in, 249(g). Preparing for marriage, 196(b). Procuring bedding, 196(b). Receiving attentions, 196(b). Unchaste acts of plaintiff, rebuttal, 139(g). Wealth of defendant as evidence, 134(e). Bribery — Attempt to bribe an officer, 128 (i). Declarations taken by dictograph, 217(a). Order of evidence, 120(h). Similar offenses to prove intent, 154(c). GENERAL INDEX 631 [Numbers are to sections; letters are to paragraphs.] Brick- Laid by thousand, custom, 439 (j). Bridge — Comparing near-by bridge witli, 131(c). Prior repair of defective, 123(0). Brokers — Value of services, experts, evidence, 354(a),(b). Brother — Presumption that he is of full blood, 54(d). Building Contract — Judicial notice in construinfr. l<>(g)- Building Material — Value of, spring and fall, 353(d). Buildings — Photographs of, 2.')0. Burden of Proof- Accused denying intent, 78(b). Act done by another, defense, 51(g). Agent without authority as a defense. 51(e). As to arbitration of loss, 53(b). As to conditions precedent, 53(c). As to conditions subsequent, 53(d). Breach by plaintifT as a defense, 51(c). * Burden never shifts, 61(b), 78. "Burden of proof," use of, 61(b). Charge as to shifting "burden," 63(a),(b). Charge to jury on, 63(a). when case is close, 64(b). Contract difl'erent from that sued on, 51(b). Contract precluding recovery as a defense, 51(d). Defense containing no new matter, 51 (a), (j). Defense denying title in plaintiff and claiming it, 51 (i). Defense mere denial, 51(a),(j). Defense of alibi, effect of, 79(a) ,(b) ,(c) . Defense of drunkenness, 78(c). Defense of insanity by preponderance, 81 (a) ,(b) ,(c) . Denial and new matter in same pleading, 49(a). Denial of delivery, .')2(a). 532 ■ GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Burden of Proof — Continued. Denial of ownership in good faith befoic due, 52(b). Denial or equivalent as defense, 40(a), 51(a),(j). Dual agency as a defense, 47(e). Error in charge, effect of, 64. Extension of time, defense, 48(c). Failure of accused to testify, 76(g). Failure of consideration as a defense, 52(c). False statements as a defense, 47(f). Forger admitting signing, effect of, 7S(d). Former adjudication as a defense, 48(a). Fraud in assignment as defense, ol(h). Fraud in obtaining a release, 48(b). Illustrations of shifting "burden," 65. In attachment, 87. In criminal cases, 76(a). In injunction, S8(a),(b). In liquor cases, 78 (g). In local option case, 78 (e). In mandamus, 89(d). In negligence cases, 86(a),(b). In special proceedings, 89(a) ,(b) ,(e) . Instructing jury on shifting "burden," 61(d). In will contest, 85(c),(d). Justification in making arrest, 47(c). Justification of discharge of servant, 47(d). Negative allegations, adversary, 66(b), (d). Negative allegations, description, 66(a). Negative allegations, essential, 66(a). Negligence, 40(e) ,(f) ,(g) . No new matter in-defense, 51(a),(j). Of contributory negligence, 86(d),(e). Of defense of duress, 80 ( c ) . Of some single fact, 54(a). On answer narrowing issue. 51 (j). On defendant, when, 47(a). On denial and averment of specific breaches, 53(h), (i). On denial of performance, 5.'^(h). On issue narrower than general issue, 51 (j). On plaintiff, Avhen, 46(a).(b). Open and close and sliifting "burden," 61(c). Payment and release as a defense, 48(b). Payment as a defense, 47(b), 52(c), (d). Plea of "not guilty," effect of, 78(a). Presumption as to burden, 40(a). Presumption of innocence, 27(a). GENERAL INDEX 633 [Numbers are to sections; letters are to paragraphs.] Burden of Proof — L'ontiinied. Prior insanity does not shift, Sl(e).. Question whether party has sustained, 102(e). Kelease as a defense, 47 (i I, 4S(b). Rests on party holding afhrniative, 45(a). Right of possession as a defense, 47(h). Self-defense by a preponderance, S2(a),(b). Shifting "burden," 60(a), 61. act in fraud of creditors, 6r)(gMh). capacity of grantor, 65 (k). conditional contract, 60(b). contempt of court, 66(e). continuance of marriage relation, 66(d). fraud by grantee, 65(j). holder of note is owner, 6.>(n). holding in due course, 65 (m). illegal vote, 66(c). inaccuracy in telegram, 65(e). in clear evidence rule, 67(b). loss of goods by carrier, 65 (o). measure of damages, 65(b). negligence, 60(c),(f). note a promise to pay, 65(1). payment, 60(e) . poll-books evidence of contents, 65(i). presumption of incapacity, 65(d). signature to release, 65 ( f ) . title to canal lands, 65(a). title to right-of-way, 65(c). want of consideration, 60(d). Special contract and payment, defense, 51(d). Statute of limitation, defense, 47(g). Statutory rule, 45(a). Substantial performance, 53(a). Tender of performance, 53(a). To prove capacity to commit rape, 78(f). To rebut an inference, 54(b). To show confession involuntary, 187(e). To show corpus delicti, 80(a). To show defendant's capacity, 80(a). To show excuse for breaking stipulation, 53(g). To show facts to exempt accused, 80(a). To show immunity for loss of goods. 53(f). To show insanity at time of trial, 81(g). To show insanity is on applicant, when, 81(g). To show performance, 53(a),(h). 634 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Burden of Proof — Continued. To show suicide of insured, 53(e). To show testamentary capacity, 85(g). Want of consideration, defense, 51(f), 52(a). When answer contains new matter, 47(a). When defense is anticipated, 50(a). When reply contains new matter, 48(a). When writing is made part of application, 46(b). Will lost, spoliated or destroyed, 85(e),(f). Burglar — Identified by bloodliound, 127(e). Business — Evidence explaining nature of, 124(d). Business Entries — By agents, 171(b). By port-warden, 171 (k). Field-notes of surveyor, 171(f),(g). General rule, 171(a), 391(a). Hospital records, 171(h). Illustrative cases, 391(b) et seq. In a memorandum book, 171 (i). Made in usual course of business, 171(a),(d). On stub of check-.book, 171 (j). Reports of gaugers, 171(e). Eequirements not fulfilled, 391(f),(g). c Canals — Epitome of specifications not evidence, 396(d). Leases of water, certified copies, 396(e). Specifications admissible, when, 396(d). Capacity — In rape, burden of proof to show, 78(f). Presumption of — for crime, 28(a). for negligence, 28(c). Carrier— Burden of proof to show immunity for loss, 53(f). Declaration of agent of, 204. Evidence of loss of goods by, 65 (o). GENERAL INDEX 635 [Numbers are to sections; letters are to paragraphs.] Cars — Life-guards on, experts, 360(d). Speed of other cars, 131(f). Stopping ear, distance, 360(c). Time to stop, 131(f). Car-wheels — Break, opinion as to time of, 360(f). Value of hammer-test, opinion, 360(f). Case — Rebutj;al in a triangular case, 59(d). Cause — Withdrawn from jury on opening statement, 103(e). Caveat emptor — Custom changing rule of, 439(e). Character — After alleged oflfense, 140 (m). As of what time, 136(e). Association with lewd persons, 137(g). Charge on weight of such evidence, 145 (c) et seq. Creating reasonable douht, 145(d). Cross-examination of witness as to woman's, 137(g). 'Element of damage, 136(d). General, definition of, 140(d),(e). General, excludes particular acts, 140(g). Good character to rebut evidence of bad, 143(c). In action for indecent assault, 136(b). In defense of self-defense, 141. In doubtful cases, 145(b). In libel case, 137(f). In malicious prosecution, 138(c). In slander, 137. Kot what persons have said, 140(li). Of accused, issue, 140(a),(b). Of applicant for preacher's license, 130(c). Of associates, immoral women, 143(b). Of customers, common prostitutes, 143(d). Of deceased, issue raised, how, 141(f). Of female of good repute, 139(d). specific acts, 139(e). Of husband, unlawful marviage license, 143(a). 636 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Character — Continued, Of known gamblers, thieves, etc., 140 { n ) . Of known pickpockets, watch-stufTers, etc., 140 (n). Of parties, general rule, 136(a). Of physician prescribing liquor, 143(e). Of plaintiff' for chastity, slander, 137(b). Of plaintiff in false imprisonment, 13S(a),(b). * Of prosecutrix attacked, 1.39(f). Of prosecutrix in rape, 139(a). Of third persons, 143. Particular quality or trait, 140(f), Part of the issue, 136(d). Presumption in favor of good, 145(f). Presumption that plaintiff's is good, 40(b). Rebuttal of evidence of good, 140(1). Rebutting good, by showing bad local, 140(1). Repute in false imprisonment, 138 (b). Weight of evidence, 145. Weight of, in cases of great crimes, 145(e). Witnesses, cross-examination on similar traits, 140(j),(k) Witnesses, limit of number, 145(g),(h). Witnesses may have heard nothing about, 140(h). Witnesses, praecipe for, 145(h). Charge — Abandoned women, testimony of. 92(b). Abstract legal rules in, 95 ( i ) . Accomplices, testimony of, 92(e),(f). Admission stated in, 92(f). Annexing material qualifications to, 95(h). Applicable to issues and evidence, 95(f). As to burden to prove contributory negligence, 86(f), As to evidence showing compromise, lS3(e). As to failure to contradict evidence, 93 (h),(i) , ( j) . As to positive testimony, 94(d),(e). As to presumption of negligence, 40(h). Cautioning against improper use of evidence, 97(f). Circumstantial evidence of crimes, 118(g). Cures error in exclusion, when, 159(a), Curing error in admission, 223(f). Definition of, 95(i) . Detectives, testimony of, 92(c). Emphasizmg certain facts, 97(d). Error in, duty of reviewing court, 64(c). Error in one of two issues, 96(a). GENERAL INDEX 637 [Numbers are to sections; letters are to paragraphs.] Charge — Continued. Error must be prejudicial, 90(m). Grouping and summarizing the issues, 95 (c). Hypothetical statement of facts in, 95 (k). In favor of party holding burden, 10-2(f),(g). Instructions to disregard, 240. form of, 241. Object of, 95(d). Omitting material facts, 95 (k). On admission of parties during trial, 10(e). On a single issue, 95 (j). On burden, evidence close, 64(b). On burden of proof, 63 ( a ) . On credibility of witnesses, 91 (i). On defense of alibi, 79. On falsus in uno, 91(c). On intent to kill, 155(d). On natural consequences of act, 155(d). On preponderance rule, insanity, 81 (d). On presumption of fact, 41(a). On question not at issue, 95'(f). On reasonaible doubt, 77. On shifting '-'burden," 63(a), (b). On tendency of evidence, 90(i). On weight of character evidence, 145(c) et seq. Prejudicial error on burden of proof, 64 (a) ,(b) ,(e) . Presvmiption of innocence, 27(b). Refusal to, as to either of two causes, 96 (c). Relatives, testimony of, 92(d). Repetition of a part of, 95(d). Requiring preponderance of wrong party, 64(a). Statements indicating opinion, 91(e). vStating object of evidence, 97(f). Stating sul)stance of evidence. 9:3 (j). huinming up evidence, 97(a),(b). , Teclinieal terms exjilained in, 95(e). Testimony of accomplices, 259. To disregard evidence, 240. form of, 241. To jury on sliifting '-Ijurdcn," 61 (d). That fact is fully proved, 93(g). That proof is insufTioient, 93(b). That testimf)ny is not clear, 93(c). Undue prominence to facts, 97(c). 638 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Chattel Mortgage- Mortgagee taking possession, 324(c). Parol evidence to identify property, 456(e), Power of sale reserved, 432(f). Check-book — Entry on stub of, 171 (j). Chemical Tests — As evidence, 357. Child— Clear evidence to invalidate the adoption of, 72(b). Presumption as to capacity of, 28(a) ,(b) ,(c) . Presumption of legitimacy, 31(b). Presumption, one under seven, 44(a). Value of services, opinion, 355(c). Christian Science — Judicial notice of, 24(c). Cincinnati — Some history judicially noticed, 25(f). Circumstantial Evidence — (See Indirect Evidence.) And reasonable-doubt rule, 76(d). Charge in criminal cases, 118(g). Most convincing, when, 118(e). City- Commercial relations of cities noticed, 23(b). Councilman can not testify to intent of, 208(e). Declarations of agent of, 208 (b) et seq. Defects in streets reported by police, 208(d). In a certain county judicially noticed, 23(e). Map of Toledo judicially noticed, 23(c). Over four miles from a to\vnship, judicially noticed, 23(f). City Engineer — Declarations of, 208(b). Records of, admissibility, 399(f). Testimony of, as to city records, 399(f). GENERAL INDEX QdQ [Numbers are to sections; letters are to paragraphs.] Civil Action — Plea of guilty admissible in, 9(c). Claim — Amendment changing, 110. Material allegation wanting, defect waived, 112(c). Procuring indemnity on, 130(n). Clear and Convincing Evidence — And preponderance rule, 67(b). And strong presumptions, 67(b). In transactions not favored, 75. Not required, when, 67(c). On error, reviewing evidence, 67(d). Rule disregarded, 67(d). Shifting "burden" rule involved, 67(b). To attach restriction, 68(e). To change note to advancement, 71(c). To establish a trust, 69(a),(b). To invalidate adoption of child, 72(b). To make nunc pro tunc entry, 72(a). To prove agency, when, 74 (b). To prove contract for services, when, 75(e) et seq. To prove estoppel, 74(c). To prove false application for insurance, 75(h). To prove gifts causa mortis, 75(a). To prove gifts inter vivos, 75(b). To prove lost deed, 73(a). To prove lost will, 73(b). To prove verbal insurance, 74 ( a ) . To reform an instrument, 70. To show misconduct of notary, 72(d). To show mistake of council, 72(d). To show want of service of summons, 72(c). To vary deed and acknowledgment, 68(e). To vary deed of trust, GS(b). To vary deed, luidue influence, 68(d). To vary note, 71(a) et seq. To vary release, 68(b). To vary writings generally, 68(a), 71(b). Clergymen — Communications privileged, 266(a). Clerk of Court— Certifvin" fiicts imt nf rciord IHfd). 540 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Coal- Parol defining merchantable, 441 (g). Value, expert, 353(c). Cohabitation — Reputation to prove, 167 (b) ,(d) ,(e) . Co-heirs — Admission of one, effect on others, 212 (j). Commercial Publications — To prove notice, 173(a). To prove partnership, IZS-lb). Commissioner — To take depositions, officer, 257 (j). Common Knowledge — Matters of, judicially noticed, 15(a), 25. Common Report — Malice in libel rebutted by, 158(e). Competency — Admission en promise. 120 (i). Decided by court, 90(j). Compromise — Evidence showing, charge, 183(e). Offer to, incompetent, 183. Condition — Shown by prior accidents, 148(b) et seq. Condition Precedent — Order of evidence, 120(f). Conduct — After an act, 128. Agreement to provoke quarrel, 128(d). Indicating guilty connection, 128 (b). Manifesting consciousness of guilt, 128(e). Of accused, too remote, 130(e). Seeking a quarrel, 128(d). GENERAL INDEX 641 [Numbers are to sections; letters are to paragraphs.] Conductors — As expert witnesses, 359(b). Confessions — Answers of accused to charges by others, 189 (j). As hearsay, 1 65 ( a ) . As to embezzlement, indefinite, 187 (i). Before coroner, accused properly cautioned, 189 (c). Before coroner, corpus delicti. 193(c). Burden of proof to show involuntary, 187 (e). Charge as to irrelevant matter, 192(f). Charge on exculpatory part, 192(d). Covering other crimes, 192(f). Credibility, 192(c). Evidence against confessor only, 191(a). Evidence of corpus delicti, 193(a). Example of voluntary, 189(b),(e). Exculpatory parts admissible, 192(b). province of jury, 192(b). Extorted by duress, involuntary, 188(e). Extrajudicial, in homicide cases, 193(b),(d). Facts corroborating, corpus delicti, 193(e). Falsehood in obtaining, 189(g). Fraud in obtaining, effect, 189 (g). Induced by hojie or fear, 187(a), 18S(a). In open court, in homicide cases, 193(b). Involuntary, degree of influence, 188(b). Involuntary, not admissible, 187 (c), 188(a). Involuntary, why excluded, 188(f). Irrelevant matter of, exclusion, 189 (k). Made before the grand jury, 190(a). admitting guilty knowledge, 190(b). Made in open court, 189(h). after proper advice, 189(f). without being cautioned, 189(f). Mental state of accused, 187(c),(d). Must be vohuitary, 187(a). ]\lust relate to charge, 187 (i). Obtained l)y officer, presumption, lS7(b). Obtained by prosecutor, lS8(d), lS9(d). duty of court, 188 (d). Of aiders and abettors, 191. Of arson and corpus delicti, 193(f). Of principal, effect on accomplice, 191(c). Of principal, effect on procurer, 191(b). 642 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Confessions — Continued. Of procurer, effect on principal, 191(a). Preliminary inquiry, 187. evidence on, 187(g). excluding jury, 187 (j). open and close, 187(f). record on, 187 (f ). submitting evidence to jury, 187 (li). Sending signed one to jury-room, 192i(g). Similar to admission, 188(c). To magistrate privately, 189 (i). Under promises of immunity, 188(a). Voluntary, question' for judge, 187(a),(c). Voluntary, satisfactory proof, 189(a). ^Yeight of, for jury, 192(a), (b). When both oral and vpritten, 192(e). Whole confession admissible, 192(a). Consciousness — Evidence to rebut, 126(h). Consideration — Evidence on indefinite allegation, 106(d). Evidence to rebut, 126(b). "Shifting" of burden of proof, 60(d). Conspiracy — Averments of, in indictment, 214(b). Conspirator showing alibi as to another, 126(f). Degree of proof, 213(f). Indirect evidence admissible to prove, 12S(k). Not shown by ill feeling of parties, 219(e),(g). Ofl'ense planned, 214(e). Order of evidence, 120(h). Paying money to confederate, 215(b). Preliminary inquiry by judge, 213(c),(d). Prima facie proof, 213(c),(d). Several larcencies, former acquittal, 216(b). Shown by consorting and consulting, 126(f). Similar conspiracies as evidence, 147 (j). To burn a building, res gestae, 216(a). To fabricate a defense, 12'8(k). To pass counterfeit, evidence, 216(c). To present false claim to officers, 217(b). Weight of evidence of, error, 213(d),(e). GENERAL INDEX 643 [Numbers are to sections; letters are to paragraphs.] Conspirators — Acts and declarations, mob, 215(e). Acts and declarations, res gestae, 213, 219 ( a), (c). Acts during pendency of enterprise, 214(a). Acts in furtherance of common object, 214(a). Acts of associate in murder, 215(a). Acts of, in absence of defendant, 214(b). Declarations admissible against himself, 219(d). Declarations of, in forgery, 216(d). Declarations of, personal intention, 219(b). Declarations of, taken by dictograph, 217(a). Indictment, averments of, 214(b). Indictment of, joint, 214(a),(b). Must be connected with offense, 219(e),(f). Narrative of past occurrence, 219(0). Offense planned by, 214(c). Prima facie proof, 213(c), (d). Constable — Proof of official position, 400 (k). Construction — By parties, 449. Consumption — Curable disease, not noticed, 24(c). Contempt — Affidavits not used, 254(d). Judicial notice of facts in, 21 (d). Of court on mere suspicion, 308(e). Prima facie evidence of, 66(e). Reasonable doubt, rule in, 76(h). Witness refusing to answer, 308(c). Continuance — Presumption of, 42. Contract — Agent's, for realty, 382(i),(j). Allegations of value, 5(a). Amount claimed, 5(a). Between principal and surety, parol, 437. Building, parol to identify property, 453(a). By agent, relation of parties, 451(d) et scq. 644 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Contract — Continued. By telephone, 165(b). Clear evidence to prove verbal insurance, 74(a). Clear evidence to reform, 70(c). "Complete" system, ambiguity, 444(j). Conclusions as to breach, 33.5(e). Construction by parties, 449. Construction of, court and jury, 383. Deed as one of sale, 382 ( e ) . Essential terms, statute of frauds, 382 (d). In restraint of trade, conduct and dealings, 218(b),(c). Intent as to term of contract, 153(e). In writing, verbal warranty, 418(c), (d). Of buyer, verbal, 195(b). Parol evidence excluded, 418. Party presumed to know law, 44 ( d ) . Presumption of regularity in letting, 36(b). "Shifting" of burden as to conditional, 60(b). Signed 'by one of parties, 382(1). Surrounding circumstances, parol. 445. Tendency and effect shown, how, 123(b). Time of, as housekeeper, 125(e). Time of shipment,, ambiguity, 444(h). Value of work admitted, when, 125(f). Will as one of sale, 382(f). With relation for services, proof of, 75(c) et seq. Written, statute of frauds, 382. Contribution — Nature of transaction, parol, 4.37(b),(c). Conversations — Between buyer and seller, 195(b). Between co-parties, adversaries, 184(a). Understanding of, 323(b),(c). Conveyance — Intent of grantor, 32(5 (b). Presumption of, by trustee, 38 (b). Corners — Reputation to prove lost, 168(c). Coroner — Finding of, an admission when, 179(a). Inquest of, not evidence when, 334(d). GENERAL INDEX 645 [Numbers are to sections; letters are to paragraphs.] Corporation — Admissions of officers, 207 (a) ,{b) ,(c) . Admissions of stockholders, 207 ( a ) . Authority for agent's admission, 207(c). Certificate of incorporation, conditions, 397(a). Charter noticed, when, 19(d). Compelling officers to testify, 293(a). Declarations of agents, 207. Declarations of transfer agent, 207(e). Judicially noticed, when, 19(e). Manager of, competency of, 275(b). Manager's letter as an admission, 207(b). Officer's admission as to position, 365 (e). President disqualified to testify, when, 287 (c). Proof of incorporation — by affidavit to answer, 397(b). by certificate of incorporation, 397(a). by reputation, 397(c),(d). Purpose of, shoAvn by oral evidence, 365(d). Records in behalf of itself, 186(b). Corpus Delicti — Burden of proof to show, 80(a). Definition of, 193(a). In arson, 19S(f). In homicide cases, 19'3(b),(d). Issue by "not guilty," 93 (j). Council — Clear evidence to show mistake of, 72(d). Contract with, parol evidence, 399(h). Mem'ber as agent of board, 208(e). Presumption of validity of acts of, 35(b), (c). Count — Error in admitting evidence, acquittal, 233(d). Error in ruling on defective, 233(c). Counterclaim — Not connected with actiDii, ()l)je(tion to, 113(d). Counterfeit — Intoxication as a defense to passing, Kil (e). C ounterf citing — Acts of associate, 216(c). 646 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] County — Notice that it is within state, 23(d), Court — Applies law to facts, 90(h). Bound by judicial admissions, 7(h). Determines admissibility, 90(j). Determines competency, 90(j). Determines questions of law, 90(b). Discretion of, in open and close, 57(a),(b). Falsus in uno, charge, 91(c). Judges of common pleas noticed, 21(b). Jury receives law from, 90(c). Law and fact mixed, 90(g). Municipal, notice ordinances, 20(a). Notice of its own records, 21(e),(g). Notice of members of supreme, 21(a). Notice of ordinances on review, 20(a) ,(e) ,(f). Notice of records of trial-court, 21(e),(f). Notice of repealed ordinances, 20(b). Notice of rules of another court, 21 (c). Notice of sessions of supreme, 21(a). Notice of term of common pleas, 21(b),(c). Of general jurisdiction, presumption, 409(a). Of inferior jurisdiction, record, 409(a). Open and close when case is heard by, 57(a). Reasonable-doubt rule on error, 76(c). Reasonable inference on error, 54(b). Tendency of evidential facts is for, 90(h). To consider facts, when, 90(f). Craps — Experts on game of, 360(g). Credibility — Charge to jury, 91 (i). False testimony, effect of, 91 (b). Falsus in uno, effect of, 91(c). Impeachment, effect of, 91(c). Of witnesses, province of jury, 91(a). Two contradictory witnesses, 91(h). Without impeachment, 91(d). Creditors — Act in fraud of, 6o(g),(h). Admission of fraud against, 178(1). Intent to defraud, rebuttal, 153(f). GENERAL INDEX 647 [Numbers are to sections; letters are to paragraphs.] Crimes — Burden of proof, 76(a). Commission of other crimes, 133. Conviction of infamous, credibility, 306. evidence in rebuttal, 306(e),(f). Defense of good faith, 160(a). Directing a verdict, 99 (i). Disclosing motive for another crime, 152(b). Door opened for other, 133(g). Indirect evidence, llS(f). Negative allegations, effect of, 60 (d). Offer to compound, 128(1). Reasonable-doubt rule, 76(a). Rebuttal must repel, disprove, etc., 126 (m). Sexual crimes with consent, 133(i) et seq. Showing intent, burden of proof, 154(h). Showing intent, degree of proof, 154(h). Showing intent, reasonable-doubt, 76(f). Crops — Usage as to away-going, 441(d). Cross-examination — As to employment of witness, 299(d). As to identity of joint offenders, 299(b). As to letter, 299(e). As to pending indictments, 304(c). As to pleading guilty to assault, 304(b). As to quarrelsome nature, 299(c). As to repair of sidewalk, 129(e). As to skill of physician, 299(a). As to slanderous words, 299(f); As to term in penitentiary, 304(b). Bias in favor of a party, 303(a),(b). Character, 304 (c) . Collateral evidence generally binding, 305. Conviction of crime, 306. evidence in rebuttal, 306(e),(f). Defendant's, on contributory negligence, 302(e). Denied, statement of expected proof, 301(c). Denial of right, error, 301(c). Disparaging questions, 304^ Door opened for immaterial matter, 302(c). Employe of party, salary, 303(e). Illustration of, 299. 648 GENERAL INDEX ■ [Numbers are to sections; letters are to paragraphs.] Cross-examination — Continued. Impeachment, contradictory statements, 315 et seq. Impeachment, reputation, 311 et seq. Inquiry for further disclosures, 298 (a) . Interest or bias not bindinff, 305(a). Interruptions by counsel, error, 301(b). Limits of, error, 301. Limits of, general rules, 208(c), 302(a). Of accomplice, 300(d). Of accused, 300(a). as to a different story, 300(b). to show familiarity with firearms, 300(c). Of defendant's witnesses, order, 302(g). Of favorable witness, 302(d). Of medical experts, 345. Of witness as to arrests, 304(b). Of witness expecting immunity, 303(c),(d). Of witnesses of accused, order, 302(h). Of witness offered money to testify, o03(d),(e). On defenses by defendant, 302(d). On matters not relevant, discretion, 304(a). On preliminary questions, 294(f). Prejudice against a party, 303 (a), (b). Privilege against incrimination, 307. Recalling for, 310(a). Religious belief, 305(c). Same questions in another form, 302(c). Test of credibility. 208. To elicit suppressed facts, 298(b). To test credibility, discretion, 304(a). Violation of city ordinance, 306(d). Crossing — Constructing disputed, res gestae, 195(f). Custom of slackening speed at, 135(d). Similar accidents at railway, 148(g),(h). Cubic Yard — Of loose rock, usage, 439 (i). Custom — Altering legal import of contract, 439-(c),(d). • Contrary to law, 439. Defining common words, 439(b). Definition of ancient, 16S(b). GENERAL INDEX 649 [Numbers are to sections; letters are to paragraphs.] Custom — C\)iitimK'tl. Exception to hearsay rule, 16S(a). Expert witnesses, 442. Knowledge of, 440. Local custom not noticed, 22(c). May be a fi.xed rule, 13o(a),(c). Must not contradict, 43S(b). , M)toriety of, 440. Of giving warning admissible, when, 135(b). Of slackening speed at crossing, 135(d). Of using guy-wire as support, 135(e). Performance according to, 441 (i). Pleading of, 443. Proof required, 443. Question of fact, 442(a). Reasonableness of, 430 (k). To explain a contract, 43S(b). To rebut negligence, 126(a). To show duties of employes, 135(c). To show non-use of highway, 126 (j). D Damages — Act done under verbal license, 156(g). Amendment asking for punitive, 110(c). Breach of contract for insurance, 130 (m). Breach of contract for realty, 1.30(1). Good faith in libel to mitigate, 158(c). Measure of, 65(b) . Opinion of, property, 351. Probable future profits as, 130(g). Slander, good faith to mitigate, 158(d). Death— I'resumption of, after seven years, 31(c). Presumption of, from disappearance, 41(d) Debt^ Ability of defendant to pay, barred, 1.34(1), Debtor — Examination of, admission, 170(c). 650 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Declarations — Error in admitting, charge, 198(f), In aibsence of adverse party, 200. Of agent defending in own name, 202(d). Of baggage-man, 204(a). Of carrier's agent, 204. Of conductor of train, 204(c). Of conspirators, 213. Of corporate agents, 207. Of depositor to prove trust, 430 (j). Of doorkeeper of rink, 203(b). Of driver, 203(c). Of employes, 203 ( a), (c). Of grantors, 210. Of grantor to prove trust, 430(c). Of husband as agent, 205(b),(c). Of joint parties, 212. Of legal representatives, 206. Of legatee to prove trust, 430 (i). Of man sent to inspect goods, 202(c). Of member of council, 208(e). Of members of school board, 208(f). Of motorman, 204(d). Of owner of land, dower, 212(f). Of owners of personalty, 211. Of parties, 184(a). Of partners, 209. Of person referred to, 202(b). Of policyholder, 205(b),(c). Of public agents, 208. Of receiver, 206 { a ) . Of son as agent of father, 209(e). Of spouse as agent, 205. Of steamboat captain, 204(b). Of subordinate lodge, 207(d). Of testator, 153(g). Of testator to prove trust, 430 (i). Of victim of rape, 198. Of victim of sodomy, 198(f). Of wife as agent, 205(a). Dedication — Declarations of grantor, 210(f). GENERAL INDEX 651 [Numbers are to sections; letters are to paragraphs.] Deeds — Absolute, may be shown to be a trust, 09 ( a ) , ( b ) . Acknowledgment conclusive, wlien, 40'2(a),(b). Acknowledgment, denial of, 68 (e). Agreement not mcrgi'd into, consideration, 428 (li) et seq. As a contract, statute of frauds, 382(e). Attaching restrictions to, 68(e). Clear evidence to vary trust, 68(b). Consideration, collateral question, 428(c). Consideration dispute^, fraud, 428(1). Consideration disputed, fraud of creditors, 428(m),(n). Consideration, operative words of deed, 42S(()). Consideration, parol evidence, 419. Consideration, parol to show advancement, 428(d). Consideration, parol to show gift, 42S(f). Consideration, parol to show mutual releases, 428 (e). Construction of, 448. Destruction of record, secondary evidence, 403(f). Execution, when proved by certified copy, 380(e). From son to father, presumption, 29(b). Intent in delivering, 325(b). Intent to deliver, 153(b). Lines and corners, parol, 444(f),(g). Lost or destroyed, 73(a). clear proof, 369(e) et seq. .copy as evidence, 369(h). loss, question for court, 370(b). secondary evidence, 369 (i). Of gift, 419(c), (d). Of lot fourteen, ambiguity, 444(d). Of master, record destroyed, 403(g). Of right-of-way, construction, 449(d), (e). Order of evidence in proving lost, 120(c). Parol as to consideration, 428. Parol evidence excluded, 419. Parol evidence, general rule, 428(b). Parol evidence to identify land, 456. Parol that consideration was love, 428(g). Parol to engraft a trust, 430. Parol to identify grantee, 450(e). Parol to show grantee a trustee, 431(d). Parol to show it to be a mortgage, 436(a). Parol to show it to be voluntary, 430(f). Presumption as to date, 29(d). Presumption of acceptance, 29(d). Proof of execution, 378(b). G52 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Deeds — Continued. Quantity of land, parol, 403(h). Reservation of oil, parol, 435(e). Reservations in parol, 419(f). Title by purchase, 419(b). To member of family, presumption, 29(a). To stranger, presvmiption, 29(a). Undue influence, proof, 68(d). Vendee assuming lien, 428 (i) et seq. Vendee assuming unexpired lease, 42S(k). Written admission as to trust, 430(g). Defendant — Declarations of others, 200. Failure to testify, 264(c),(d). lias bui'den of proof, when, 47(a). Recognition of, corroboration, 200(g). Witness against himself, error, 2r)4(c),(g). Witness at his own request, 264(c),(e). Defenses — Act done by third person, 51(g). Agent without authority, 51(e). Amendment changing, 110. Anticipated, burden of proof, 50(a). Breach by plaintiff, 51(c). Conspiracy to fabricate, 128 (k). Containing no new matter, 51(a),(j). Contract different from that sued on, 51(b). Contract precluding recovery, 51(d). Denial or equivalent, 46(a), 51(a),(j). Denying title in plaintiff, 51 (i). Effect of "not guilty," 78(a). Error in ruling on one, 233(b). Fraud in assignment of title, 51(h). In confession and avoidance, 80(b). Mere denial, 51(a),(j). Of drunkenness and burden, 78(c). Of duress, preponderance, 80(c). Of insanity, burden of proof, 81(a),(b). Preponderance rule in two or more, 96(d). Special contract and payment, 51(d). Tried as if pleaded, objection, 116(b). Want of consideration, 51(f). GENERAL INDEX 653 [Numbers are to sections; letters are to paragraphs.] Delivery — Contract silent as to route, ambiguity, 444(e). On condition, parol, 433. Demurrer — To evidence, involves aLLUi^stexon, 99(d),(e). Denials — Admission in game pleading, 5(a). And neAV matter in same pleading, 49(a). Burden of proof when issue is narrowed, 51 (j). Calling for proof not proper, 1(b). Improper denials, 1(b). Inconsistent with admissions, 3(b). In reply, new matter, 117(a). Issues made by, 1(b). Necessary to material allegations only, 4(a). Necessary to new matter in answer, 2(b). New matter in reply, 1(a), 2(a). Of attached writing, 4(b). Of legal conclusion not necessary, 4(b). Want of belief sufficient, 1(c). \Yant of knowledge instead of, 1(c). Depositions — Commissioner to take, 257(j). Exceptions to, 256. answer not responsive', 256(f). competency of witness, waiver, 256(c). ^ filed when, 256 ( a ) . filed with papers, 256(a). heard, when, 256(b). in writing, 256(a) . Incompetent after death of adverse party, 2S0(b). In criminal cases, 255(h). May be read, when, 255(e). May be used when, 255(b). Not introduced in evidence, use of, 250 (g). Of plaintiff, action f(jr personal injuries, 255(f). Power of notary public, 257. Showing that witness is sick, 255(c). lubscribed testimony used as, 255(d), (g). Til5(a). Or custom may be fixed rule, 135(a),(c). Handwriting — Acquaintance with, 340. . Circumstantial evidence to prove standards, 338(e). Comparison of, to prove identity, 127(b). Comparison used in many cases, 339. Cross-examination of witness denying, 338(f). Forgery, standards, 339(d),(e). Husband proving wife's, 340(a). Identity, on issue of, 339(b). Marks on registration lists, 339(c). Non-expert witnesses, 340(a). Old rule, 337(a). On bank-paper, 340(b),(c). Proof of standards, 33S(b),(c). Qualifying witnesses, 341(a). Standards of comparison, 338. Standards sent to jury-room, 338 (g). Weight of evidence, 341(c),(d). Witnesses, 341. Hearsay — Accident reports, 163(a). Account-books of third party, 163(b). Admissions as, 165(a). Admitted without exception, 221(a). Admitting after objection, 223(d). After-acquired knowledge. 162(i). Agent's statement, 162(b). Ancient custom an exception, 168(a). Rook -account as, 171(c). Business entries an exception, 171. Cashier's letter, 163(c). Certificate of w.'iglit, 163 (d). Commercial publications, exccpfion. 173. Confessions as, 165(a). Contract by telephone, 165(b). Contradictory statements, 165(a). Deceased's exculpatory statement, 162(d). Deceased's statement as to iiiconie, l(i2(e). G72 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Hearsay — Continued. Definition of, 162(a). Description of criminal, ir)()(c). Doctor's statement, 162(c). Dying declarations, an exception, 170. Exceptions to rule, 164(a). Exclusion, reason for, 162(a). Former testimony, exception, 174 et seq. Information acted upon, arrest, 166. Information from third person, 162(b). In introducing evidence, 162(g). In refreshing recollection, 162(g). Letter of cashier, 163(c). Limit of rule, 162(g) et seq. Matliematical tables, exception, 172. Newspaper statements, 16.3(d). Notary's statement in protest, 163(c). Nurse's statement, 162(c). On cross-examination, 162 (k). Pedigree an excej)ti()n, 1()7. Police-officer's statement. 162(h). Preliminary examination on, 162 (j), 240(h). Reason for exclusion, 162(a). Reports of accidents, 163(a). Report that train was late, 166(b). Right of adverse party to prevent, 162 (j). Rule, exceptions to, 164(a). Rule limited, 162(g) et seq. Slanderous words ndmissil)]e. 16.5(a). Statements again^t pecuniary interest, 169. Statements of an agent, 162 (hi. Statistical tables, exception, 172. Telephone conversation, 16o(b). Third person's stalement. 162(1)). To rebut inference of negligence. Ifi6(b). Wife's statement ti) husband, 162(f). Witness had heard, 162(g). Words in issue not hearsay, 16.5(a). Highway — Custom t(i shnw the non-use of. 126(j). History — Current bistory not noticed, 22(c). Matters long since transacted are noticed, 22(a), (b). GENERAL INDEX 673 [Numbers are to sections; letters are to paragraphs.] Homicide — Accused's declarations afterward, 197(d). Acts and declarations of conspirators, 215. Coroner's inquest not evidence, 334(d). Corpus delicti in, 193(b),(d). Declarations of deceased afterward, 197(g). Defense of delirium tremens, evidence, ]Gl(c). Threats just before attack, res gestae, 196(6). Horses — Condition of, experts, 302(3). Ilahits of, experts, 362(a). Motive in injuring, 152(c). Record of speed of, 172(c). Value of, juror's knowledge of, 98 (g). Horse Stealing- — Trior stealing of money, intent, 154(g), Hospital — Itcports lequired by rules, evidence, 399(c), House — Condition of house in suit for services, 124 (b), Housekeeper — Admission of value of services, 178(c), May .-ihow condition of liouse, 124(b). ()|)ini(Jii (in \nlu<' nf .services, 355(b). Time of contract, 125(e). \alue of services, witness, 355(a). House of 111 Fame — I'roving rciiiitiitiuii of, i-tr(a),(b) Husband — Character of, unlawful marriage license, 143(a), 574 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Husband and Wife- Privileged communications — act may not be prejudicial, 269(g). applies to certain acts, 269 ( a ) . as to common-law marriage, 269 ( 1 ) . competent when third person present, 269(a). conversation of, binding others, 200(d) et seq. criminal cases, exceptions, 270(a). cruelty to children, 270(a). failure to provide, 270 ( a ) . husband's robbery of wife, 270(b) . husband's testimony for co-defendant, 269(j). husband's testimony on presence of another, 269(f). husband's testimony to slander of wife, 269 (i). in action for divorce, 269 (m). letters in possession of third person, 270(d),(e). perjury of husband, wife a witness, 270(g). personal injuries by one to other, 270(a). third person present, question for court, 269(e). third person present since deceased, 269(f). trial for crime, cross-examination of spouse, 270(c). whereabouts of either, 270(a). widow against co-maker of husband, 269(h). wife may testify, exceptions, 269(c). wife may testify to husband's alibi, 270(b). wife's declaration in dreams, 270 (k). wife's letters to husband, 269(d). wife's testimony as to non-access of husband, 270(f). wife's testimony on presence of another, 269(f). woman not wife as a witness, 270(h). written papers from one to other, 269(b). Hypothetical Questions — Assuming facts, 331. Based on best evidence, 330(b). Based on immaterial evidence, 331(f). Based on supported facts, 330(c). Charge as to value of testimony, 331(c) et seq. Error in assuming facts, 331. General rule, 330(a). Irregular form, error, 331(g). Not necessary, when, 330(e). Opinion from testimony, 330(f). Proving facts by preponderance, 331(h). Re-examining witness to lay ground for, 330(d). GENERAL INDEX 675 [Numbers are to sections; letters are to paragraphs.] Hypothetical Questions — Continued. Value of testimony, charge, 331(c) et 6eq. \Yeight of testimony, 331(e) et seq. When witness knows no facts, 330(e). I Identity — And alibi, 127(g). Comparison of writing to prove, 127(b). ^ Concurrence of characteristics, 127(a). Memory of personal appearance, 127 (a). Of burglar shown by bloodhound, 127(e). Of father of bastard, how proved, 127(d). Of person meant by libel, 127(h). Of person, non-expert witness, 326(c). Of persons who published libel, 127(h). Of person talking over telephone, 165(c). Of person writing letter, 127(c). Proved by accounting for others, 127(f). Same name, 127(a). Illegitimacy — Proof by record, when, 413(c). t Impeachment — By conduct, failure to speak, 319. By inconsistent conduct, 315(d). By showing reputation for truth, 311 et seq. By stenographic notes, 175(c). Calling adverse party to lay foundation, 320(a). Contradictory statements, 315. as hearsay, 165(a). by subscri])ing witness, 318(d),(e). confining impeachment within foundation, 315(c). cross-examination as to, 320(c). cross-examination of impeaching witness. 320(f). explanation of, 320(d). expressions of opinion, 316(a). impeaching witness may be impeached, 320(h). in deposition, 317(c). in former testimony, 317. in letter, 318(c). in writing, 318 ( a), (b). laying foundation, 315(a). 676 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Impeachment — Continued. Contradictory statements, 315. leading questions, 320 (bj. opinions based on knowledge, 316(b). opinion with facts, 316(a). order of evidence, 320. questions in laying foundation, 315(b). re-examination as to, 320(g). rehabilitation of witness, 321. stenograjiher proving, 317(a),(b). time for impeaching evidence, 320(e). witness, rehabilitation, 321. Credibility, effect on, 91(c). Cross-examination of impeaching witness, 312(f). For intellectual weakness, 3 ] 2 ( d ) , ( e ) . Leading questions in denying statements, 294(e). Of dying declarations, 170(1). Of own witness not allowed, 295. Of testimony taken before a master, 31-1 (c). Of witness called in rebuttal, 31-l(a). Of witness making affidavit, 314(b). Rehabilitation, 321. Want of ordinary intelligence, 312(d), (e). Implied Contract — Evidence of amount d>ie, 5(b). Impressions — Witness may state, 322(b).(c). Incest — Other sexual crimes as evidence, 133 (i). Incrimination — Asked for l:)y counsel, 307 ( d ) . Privilege against, 307. Privilege against, by party, 307(f). Privilege allowed by judge, 307(b),(c). Privilege not claimed, 308(e). Indecent Assault — Character of defendant, 136(b). Character of plaintiff, 136(b). Indemnity — Procuring, on threatened claim, 130 (n). GENERAL INDEX 677 [Numbers are to sections; letters are to paragraphs.] Indorsement — Not to transfer title, 451(b),(c). Parol evidence excluded, 424. Relation of parties, 451(b),(c). Waiving protest, parol to vary, 424 ( e ) . Infants — Evidence to prove ■want of care in hiring, r25(d). Inference — Burden of proof to rebut, 54(b). Drawn from inference, 118 (j). Evidence supporting, 125. Presumptions not always based on, 2(5 (c). Rebutting, 126. Sustaining reasonable inferences, 54(b). Injunction — Burden of proof, 88(a),(b). Burden on motion to dissolve, 89(c). Burden on suit to enjoin assessments, S9(d),(e). Evidence on motion to dissolve, 254(f). Injuries — Opinion on permanency of, 343(b),(c). Innocence — Charge on presumption of, 27(b). Evidence to overcome presumption of, 7fi(a), Presumption of, 27. Presumption of, and burden of proof, 27(a). Presumption of, and of continuance, 42(a). Presumption of, not based on inference, 2(5(c),(d). Insane Person — Judicial admissions of, 8(a). Insanity — As a defense to murder, burden Sub&tantiating own statement, 186(c), (e). Taking deposition of adverse party, 2^3(e),(f). Testimony of, generally admissible, 271(b). To the record, exclusion, 273(b). Partnership — Act of partner in scope, 209(a),(c). Acts of partner after dissolution, 209 (d). Admission of, by writing, 179(f). Admission of, in testimony, 178(a). Commercial publications to prove, 173(b). Common report to prove, 209(g). 704 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Partnership — Continued. Declarations of one as to title, 211(b). Declarations of one that he is a partner, 209(f),{h). Declarations of ostensible partner, 209(b). Deed in firm name, 209(g). Evidence to prove, 209(g). Issue of, opinions, 335(b). Of son and father, 209(e). Partner binding himself by acts, 209(f),(h). Partner inspecting books of, 375 ( h ) . Presumption of continuance of, 42(c). Relation of parties, 451 (a). Passenger — Declarations after injury, 197(e). Patent Office — Records of, how proved, 395 ( b ) , ( c ) . Patient — Declaration of, not binding on physician, 200(h). Statements of, to physician, 199(a) et seq. Pavement — Measure of, parol 'to explain, 439(h). Payment — Burden of proof on defense of, 47(b), 4S(b). Excluding evidence of, 227(e). Made by profits of policy, 451(g). Open and close on defense of, 56(c). Presumption after 20 years, 30(a). Presumption of, as to note, 30(b),(c). Presumption of passing title, 43(j). Shifting of burden of proof as to, 60(e). Pecuniary Ability — (See Financial Ahilitij.) Pedigree — General rulr, 167(a). Perch — Meaning of, p:irnl, 445(e). GENERAL INDEX 705 [Numbers are to sections; letters are to paragraphs.] Performance — As to arbitration of loss, burden, 53(b). As to conditions precedent, burden, 53(c). As to conditions subsequent, burden, 53(d). Burden of proof to show, 53(a),(h). In the customary mode, 441 (i). Of specific breaches, burden, 53(h),(i). To show exciise for breaking stipulation, 53(g). To show immunity for loss, 53(f). To show suicide of insured, burden, 53(e). Two modes of, ambiguity, 444(e). Perjury — Corroboration of one witness, 25S(c),(d). Declarations of principal involving accused, 212(h). Intoxication as a defense, 161(d). Number of witnesses, 76 (i). Proof of former trial, 412(f). Proof required, 76(i),(j). Permit — Loss, secondary evidence, 369(b). Personal Property — Opinion as to damage to, 351 (f) . OwTier may give opinion of value, 353(a). Petition — Amendment of defective, after verdict, 111(b). Defect in, waived, 112. Defective, cured, when, 112. Dismissed on opening statement, 103(e). Local option, amendment of, 89(b). Not to be aided by answer, when, 114(b). Objection to defective, waived, when, 112(b). Record and amendment of defective, 108(f). Stronger than evidence, effect of, 110(h). Writing made part of, burden, 46(b). Photographs — Acrobat, picture of, 250(j). Accuracy of, 250. Collapsed buildings, 250(c). Film of moving picture, 250(f). General rule, 250(a). 706 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Photographs — Continued. Picture, explanation of, 250(1). Premises, accident, 250(b). Roentgen ray, 250(g),(h). Testator (old picture), 250(d). Will case, testator, 250(e). X-Rav, 250(g),(h). Photography — Judicial notice, 24(a). Physical Condition — Opinion of non-expert, 346. Physical Examination — Accused submitting to, 249(h). Application, time of, 249(d),(e). As a privileged communication, 267(e), In breach of promise case, 249(g). In presence of jury, 249(f). Judge may order, 249. Judge may refuse, 249(c),(d). Of accused, 249(h). Physician not privileged, 249(a). Plaintiff, refusal of, 249(b). Physician — Admission to one named by court, 178 (j). As a medical expert, .342 et seq. Character of one prescribing liquor. 143 (e). Xot privileged, when. 249(a). Privileged communicatinns, 267. does not cover independent knowledge of physician, 267(d) includes physical examination of patient, 267(c). patient may waive privilege, 267 ( a), (c). physical examination by order of court, 267(e). Testifying to declarations of patient, 199(a) et seq. Plaintiff- lias Inirdi 11 if proof, when, 46(a), (b). Plaster Cast — Inspected by jury, 244(g). Plat^ Or plan of land division, 250 (k). GENERAL INDEX 707 [Numbers are to sections; letters are to paragraphs.] Plea — Of guiUy as evidence, 9(c). Of "not guilty," issue made by, 76(c). Pleadings — Evidence under indefinite, lOG(b). Indefiniteness objected to, lOG(c). Introduced by adversary, 7(f). Motion to indefinite pleading, error, 10(3 (i). Xeed not state evidence, 106 (j). Xot admission in action for penalty, 9(c). Xot admission in criminal action, 9(c). Objection to evidence on defective, 113. Objectiort to evidence on indefinite petition, 113(c). Objection to indefiniteness, 106(c). Reading to jury, 95(a),(b). Rebutting proof on defective, 109(c). Policemen — Defects in streets reported by, 208(d). Presumption as to acts of, 40(c). Policy — Experts on game of, 360(g). Meaning of "policy" as a game, 25(c). Poll books — rriiiia facie evidence of contents, 65(i). Port-warden — Entry of, as to condition of goods, 171 (k). Positive Testimony — Approvfd cliarge, 94(e). Definition of, 94(c). Weight of, 94(a). Post Mortem Examination — Rc'port of, not admlseililo. wlion, 334(e). Poverty — (See Financial Ability.) Of disinherited son, 134(g). Of pl-uiitin" too remote. 134(a). 708 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Power of Attorney — Lost and unrecorded, secondary evidence, 369 (j). Praecipe — For character witness, 145(h). Prejudice — Affidavits to show, 94(f). Presumed from illegal evidence, 223(c). Presumed from incompetent evidence, 223(b). Presumed from misleading evidence, 223(a), Preliminary Statement — Exclusion of evidence, for not mentioning in, 227(c). Premises — Photographs of, 250. Preparation — For an act, 128. Preponderance — Charge, requiring it of wrong party, 64(a). Claim based on criminal acts, 84(a) ,(b) ,(g) . Clear and convincing evidence and, 67(b). Court deals with probabilities, 83(b),(c). Defense based on criminal acts, 84(a) ,(b) ,(g) . Defense based on fraud, 84(c). Defense of duress, proof by, 80(c). Defense of insanity by, 81(a),(b),(c),(d). Defenses in confession and avoidance, 80(b). "Fair preponderance" in charge, 83(e),(f). In action of slander, 84(e). In action to recover gambling losses, 84(f). In assault and battery, 84(d). In civil action for selling liquors, 84(f). In two or more defenses, 96(d). In will contests, 83 ( h ) . Meaning of, 83(a),(b). No degrees of, 83(e),(f). Required for rebuttal, when, 63(a),(b). Rule applies to contract for services, when, 75(f),(g). Rule in civil actions, 83(a). "Satisfied by," in charge, 83(d). Verification of pleading, eflfect, 83(a). Where alibi is shown, 79(a). GENERAL INDEX 709 [Numbers are to sections; letters are to paragraphs.] Prescription — Ground laid for secondary evidence, 366(b). Present Condition — Relevancy of, to show past condition, 42(g). Present Possession — Relevancy of, to show past possession, 42(g), Presumptions — Against negligence, 40(g),(h). Age and capacity for crime, 28(a). And the burden of proof, 40(a). Arises on facts, 26(d). As to acts of military officer, 37(d). As to acts of police officer, 40(c). As to age of consent, 28 (d). As to alteration of note, 39(b). As to child over fourteen, 28 (c). As to child under fourteen, 2S(a) ,(b),(c) . As to child under seven, 28 ( a ) , 44 ( a ) . As to date of execution of deed, 29(d). As to drawing of will, 43(g). As to how a letter was mailed, 54 (c). As to negligence, 86 ( b ) . As to negligence, charge, 40(h). As to offer to pay note, 39(d). As to regular marriage, 39(c). As to revocation of will, 29. of law or fact, 29(f). As to tenant holding over, 43 (k). As to two securities, 43(h). Charge to jury on one of fact, 41(a). Clear evidence and strong, 67(b). Conclusive defined, 44(a). Conflict of, 42(a). Directing verdict on, 62(b). Distinguishing kinds of, 41(a),(b). Effect of rulings on, 32(a). Estoppel as, 44(e). Evidence, effect on, 26(e). Evidence required to rebut, 63(a),(b). Facts, arise on, 26(d). Facts, not always warranted Ijy, 26(d). Failure to answer, effect of, 62(b). 710 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Presumptions — Continued. Founded on experience, 26(b). From destruction of will, 29(e). of law or fact,* 29(f). From present condition, 42(g). From present possession, 42(g). From seven years' absence, 31(c). Inference, not always based on, 26(c). In construction of writings, effect of, 43(a),(b). In description of subject-matter, 43(e). In favor of a road record, 35(f). In favor of good character, charge, 145(f). In favor of governor's findings, 35(e). In favor of married woman, 27(c). In favor of the law of forum, 43(1). In negotiable instruments law, 31(d). Innocence, not based on inference, 26(c),(d). In statutes of limitation, 44(e). Legal, defined, 26(a). Legality of acts, 40(e),(f). Logical inference, 41(a). May be strong or weak, 67(a). Meaning evidence sustains verdict, 41(d). Meaning prima facie proof, 32(a), 35(a), 36(a). Meaning that evidence was sufficient, 32(a). Need not be alleged, 4(b). Of ademption of legacy, 43 ( f ) . Of advancement, 29(a). Of capacity, 28. Of capacity in negligence, 28(c). Of capacity in rape, 28 (b). Of continuance and relevancy, 42 (a) ,(b) ,(h) . Of continuance of insanity, 42(e).(f). Of continuance of partnership, 42(c). Of continuance of reputation, 42(d). Of continuance of seaworthiness, 42(b). Of conveyance by trustee, 38 ( b ) . Of death after seven years, 31(c). Of death from disappearance, 41(d). Of fact as' a presumption, 41(c). Of fact, defined, 41(a). Of gift, 29(a), (b). Of incapacity, 65(d). Of incapacity for crime, 28(a). Of innocence, 27. Of innocence, burden, 27(a). GENERAL INDEX 711 [Numbers are to sections; letters are to paragraphs.] Presumptions — C'ontinued. Of innocence, charge on, 27(b). Of innocence, doubtful cases, 27(b). Of innocence, evidence to overcome, 76 (a). Of insanity from previous insanity, 42(f). Of intent, 32(c). Of jurisdiction, 43(c),(d). Of knowledge of law, 44. Of legitimacy, 31(b), 66(a). Of loan when note is given, 43(1). Of negligence, 32(b). Of negligence from defect, 31(d). Of negligence unanswered, 62(d). Of ownership of note as weak, 67(a). Of passing title from payment, 43 (j). Of payment after 20 years, 30(a). Of payment by administrator, 38(d). Of payment in taking up note, 30(c). Of payment of note in hands of maker, 30(b). Of payment used for '-relevant," 41(c). Of performance of duty, 38(a)'. Of probable cause for action, 40(d). Of receipt of letter by mail, 38(e). Of regularity in letting a contract, 36(b). Of regularity of acts of officers, 34(a). Of regularity of an election, 36(b). Of regularity of approval of bond, 36(d). Of regularity of assessments, 36(f). Of regularity of election of widow, 36(e). Of regularity of transactions, 30(a). Of sanity, effect of, 31(a). Of trust, 29(a), (b). Of validity of acts of council, 35(b),(c). Of validity of official acts, 34(a). as one of law, 34(d) . effect of, 34(b). one of fact, 34 ( c ) . Of validity of local-opticm election, 35(c). Of valid will from order of probate, 31(d). Omnia praesunumtur, 33(a). Party presumed to know law, 44(d). Possession of stolen goods as, 41(b). Prima facie effect of, 26(a),(e). Res ipsa loquitur, 32(1)). .Statutory prima facie case, (-ffect of, 31(d). That a man supported his wife, 38(c). 712 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Presumptions — Continued. That board of improvements reported, 35(d). That brother is legitimate, 54(d). That brother is of full blood, 54(d). That deed Avas accepted. 29(d). That every person knows the law, 44(b). meaning of, 44(c). not a universal rule, 44(b). That gift was accepted, 29(c). That one obeyed orders of superior, 3S(f). That plaintiff's character is good, 40(b). That trustee intended to do his duty, 38(g). Used to mean relevant, 41(e). Priest — Communications privileged, 266(a). Prima Facie Proof — Burden of proof, shifting of, 61 (a) ,(b) ,(c). Case for court when unanswered, 62 (a*. Charge to jury on shifting "burden," 61(d). Directing burden on, 62 (a) ,(b) ,(c) . Directing verdict on, 62(a),(b),(c). Evidence required to rebut, 63(a),(b). Failure to answer, effect of, 62(a),(b). In contempt case, 66(e). In criminal cases, 78. In liquor eases, 78 (g). May be strong or weak, 67 ( a ) . Necessity of evidence to answer, 61(a). Of election to office, 37(a). Of negligence unanswered, 62 ( c) , ( d) . Order of probate, 85 (b). Presumption, disputable, 26(a), (e). Presumption may mean proof, 32(a), 35(a), 36(a). Proceedings of auditor, 37(b). Proof of official acts, 37(a). Question for jury when rebutted, 102(b). Rebuttal of, question for jury, 63(a). Record of board of equalization, 37(b). Regularity makes such proof, 33(a). Shifts one burden, 61 (a) ,(b),(c). Statutory, effect of, 31(d). Tax deed is, when, 37(c). GENERAL INDEX 713 [Numbers are to sections; letters are to paragraphs.] Principal — Declaration of, against surety, 212(e) ,(d). Declarations of, involving accused, 212(h). Entries of, in book, surety, 212(e). Prisoner — Admission by, 178 (i). Privileged Communications — Attorneys, 268. Clergymen, 266. Husband and wife, civil, 269. Husband and wife, criminal, 270. Physicians, 267. Prize Fight — Acts and declarations of principals, 217(c). Association rules not admissible, 334(a). Question for jury, opinion, 335 (i). Probable Cause — Acts of plaintiff's associates to show, 157(c). Process — Official return as evidence, 414(b). Prohibition — Entry in court of appeals binding on supreme, 409(g). Promissory Notes — Alteration of, presumption as to, 39(b). Clear evidence to vary, 71(a), (b),(c). Conditional delivery shown by parol, 433(d) et seq. Consideration, parol evidence, 429(a), (b). Declaration by holder, gift, 211(e). Declaration in will by holder, loan, 211(f). Declaration of holder, advancement, 211(f). Evidence in suit to reform, 423(f). Execution denied, primary evidence, 367(a). Failure of consideration, defense, 52(c). Failure of consideration, parol, 429 ( a), (b). Given as a receipt, parol. 429 (o). Guarantor of payment, parol, 424(f). YJ4 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Promissory Notes — Continued. Heirs of payee, competency, 276(a). Holder is owner, 65 (n). Holding in due course, 65 ( m ) . Indefinite answer as to defense, 106(d). Indorsement without consideration, 429(e). Intent of party altering, 325(a). Intent when signing, 325(d). Intention of makers, parol, 423(c). Is promise to pay, 65(1). Maker not party, competency, 287(d). No delivery as a defense, 52(a). One not signing, liability, 423(d). Order for payment of, parol, 457(c). Ownership in good faith, denial, 52(b). Parol evidence excluded, 423. Parol to show subsequent agreement, 434(e). Parol to show true date, 423(f). Parol to show usury, 429(d). Payable in goods, price, parol, 444 (i). Payment as a defense, 52(c),(d). Presumption as to oflTer to pay, 39 ( d ) . Presumption as to payment, 30(b),(c). Presumption of loan from, 43(i). Presumption of ownership is weak, 67(a). Principal not party, competency, 279(d). Signed by one as agent, parol, 423(a). Signed by two persons, partners, 417(b). Sureties not parties, competency, 280(g). Taking with notici, proof of, 146(j),(k). Verbal agreement as to payment, 433(g). Verbal agreement as to security, 423(e). Waiving demand and notice verbally, 424(d). Want of consideration, defense, 52(a). Want of consideration, evidence to show, 429(f). Woman's intention in signing, parol, 423(b). Proof- Amendment conforming pleading to, 110. Lacking, judge calls attention to, 114(c). Must agree with allegations, 106(a). Of facts noticed not necessary, 15(a). Proofs of Loss — Notice to produce originals, 371(c). GENERAL INDEX 715 [Numbers are to sections; letters are to paragraphs.] Property — Alt ion to recover, burden, 89 (b). [Malicious destruction of, malice, 157(a). Threats against, 128 (e). Proposal — Writing to be produced, 366(c). Prosecution — Re-opening case for evidence, 58 (i). Prosecutor — Obtaining a confession, 188 (d), 189(d). duty of court, 188 (d). Threatened by accused, 128 (m). Prostitutes — Character of, 143(d). Protest — Certificate of, admissible, when, 402(c),(d). Statement of notary in, 163(c). Public Contract — Mistake in bid, 8(b) . Public Documents — Judicially noticed, 17(a). , Public Officers — Judicial admission of, 8(b). Punitive Damages — Ability of defendant to pay, 134(b). Purpose — Of admitting evidence, 2.34(e) et seq. Ofl'i-ring <'vidence for a wrong, 236(e). Ollering evidence on correct ground, 236 |e). 716 GENERAL INDEX [Numbers are to sections; letters are to paragraphs.] Quantum meruit — Wealth of defendant considered, when, 134(f) Quarrel — Agreement to provoke, 128(d). Seeking, guilty conduct, 128(d). Sudden, 195(a). Questions — Instructing jury on repeating, 236(c). Repeating, after ruled out, 236(a),(d). Eepeating, made admissible later, 236 ( d ) . R Railroad — Books of, competent as an admission, lS6(f). Books of, in behalf of itself, lS6(f). Crossing, no sign-board at, 125(b). Declaration of baggage-man, 204(a). Declaration of conductor, 204(c). Declaration of passenger after injury, 107(e). Ejection of passenger, malice, 195(h),(i). Entries in books, etc., 391(b),(c). Passenger ticket, parol evidence, 435 ( d ) . Ees gestae to show intent of passenger, 196(d). Rap( Acts of husband of prosecutrix, 205 ( d ) . Burden of proof to show capacity, 78(f). Character and specific acts, 139(b). Character of prosecutrix, 139(a). Conduct of prosecutrix with other men, 139(c). Declarations of prosecutrix afterward, 198(a). cross-examination on, 198(e). error, charge, 198(f). prosecutrix incompetent, 198(f). several days after, 19S(c),(d). Declarations to corroborate prosecutrix, 198 (a) Explaining condition of woman, 124(a). General reputation of prosecutrix, 139 (i). Guilty of other rapes, 133(h). GENERAL INDEX TIT [Numbers are to sections; letters are to paragraphs.] Kape — Continued. Presumption as to character of prosecutrix, 139(f). Presumption of capacity, 28(b). Reports about prosecutrix, 139(h). Reputation of prosecutrix, 313(a). Sexual crimes with consent, 133 (i) et seq. Statements of husband of victim, 20.5 (d). Testin" witness' knowledge of reputation, 139 (i). Real Estate — Conditional delivery of contract, parol, 433(c). Custom to change title of, 439(c). Damages for breach of contract for, 130(1). Expert on value of, 352. Measure of damages to, 351(a). Open and close in action to recover, 56(b). Opinion as to damage by condemning part, 351(d). Opinion as to damage caused by dam, 351(e). Opinion as to difference in value, 351(e). Opinion as to injury, 351(b). Present value and value one year ago, 352(d). Right of possession, burden, 47(b). Rise in value of, noticed, 25(f). Title to, former decrees, 412(b). Value, amoimt paid, 352(d). Value, weight of testimony, 352(e). Heal Evidence — Bastard shown to jury, 127(d). Bill of exceptions, 244(i). bastard child, 244(a). experiments, 251(a). models, 251 (e). moving picture, 250(f). photograph, 250(b). view of premises, 240 (c). X-ray photograph, 250(h). Cinders (sparks), 244(f). Definition of, 243(a). Diagrams, 250(j),(k). Experiments, 251 ct seq. Knife as weapon, 244 (c ),(