THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW HINTS FOR FORENSIC PRACTICE: A MONOGRAPH ON CERTAIN RULES APPERTAINING TO THE SUBJECT OF JUDICIAL PROOF. BY THEODORE F. C. DEMAREST, Hi A.B., A.M., COLUMBIA : LL.B. : EDITOB OF N. Y. SURROGATE BEPOKTS. AUTHOR OF A TREATISE ON ELEVATED RAIL- ROAD LAW? A STUDY OF THE ABENDROTH CASE, ETC. " Reason is the life of the law, nay, the common law itself is nothing else but reason The law, which is perfection of reason." COKE, Inst. "To whomsoever, with other than a professional eye, it can have happened to take up a book on the subject of evidence, be the book what it may, it can scarcely have been long before he saw more or less reason to suspect that, in the formation of the mass of rules of which he found it composed, the share taken by that fac- ulty which, when applied to other subjects, goes by the name of reason must have been small indeed." BENTHAM, Introd. to Rationale of Jud. Evidence. "Medio tutissimus ibis." OVID, Metam. THE BANKS LAW PUBLISHING COMPANY, 21 MURRAY STREET, NEW YORK. 1906. Copyright 1905 BY THE BANKS LAW PUBLISHING COMPANY. INTRODUCTORY. "Objected to, as incompetent, irrelevant and immaterial." This particular objection, to the introduction of evidence, was taken twenty-seven times on the trial of the action reported in 129 N. Y., at page 252; twenty-two times in the case in 149 N. Y., 154; twenty-two times in 173 N. Y., 549; nine times in 128 N. Y., 571; and three times in 179 N. Y., 24. An echo from the Pacific coast is heard in 46 Cal., 397. In the celebrated action reported in 90 N. Y., 122, the distinguished counsel, who officiated at the trial, totally abstained from the use of this formula, and, in eighteen instances, expressed their opposition, to evidence offered, by the first two words ("objected to") of the foregoing quo- tation, a mode of objection which they may have considered equally expressive and effectual. Its resonant euphony, and an air of erudition, not altogether dissociated from obscurity, which pervades this tripartite specification, probably serve to recommend it to the advocate, who, 687411 11 INTRODUCTORY. though reasonably sure that he would rather dis- pense with particular, proposed evidence, is not prepared, on the spur of the moment, accurately to state the reasons why his preference should be gratified. In one case, counsel proved himself equal to the feat of doubling the galaxy, his rotund pro- test being, that evidence offered was " incompe- tent, irrelevant, immaterial, impertinent, inad- missible and improper." He might have added, "illegal, injurious and intolerable." The opinions of the Courts teem with admo- nitions, to counsel, of the desirability of being specific in their statements of the grounds upon which they oppose the introduction of evidence, on trials, and advising of the serious consequences likely to ensue from a deficiency in that respect. Is the triple, rhythmical alliteration, to which reference has been made, amenable to criticism, as lacking such requisite quality? Again, there are decisions of high authority, apparently holding that counsel may, under cer- tain circumstances, sit silent at the time when his opponent offers testimony or documents, without precluding himself from subsequently avoiding the effect of the evidence, if admitted and deemed, by him, to be harmful to his case. In what manner is this privilege, or possibility, to be reconciled with the admonitions mentioned, and with what is believed to be a more or less gen- INTRODUCTORY. Ill eral impression, that the best, if not the only avail- able, time to start opposition to the allowance of evidence is when the adverse counsel seeks its admission, if the ground of objection be then apparent? An effort to discover and explore the legal prin- ciples underlying these and allied queries was the occasion of setting down what is submitted to the reader in the following lines. TABLE OF CONTENTS. PAGB COPYRIGHT PAGE INTRODUCTORY i-iii TABLE OF CONTENTS v TABLE OF CASES, etc vii-x TABLE OF TREATISES, etc xi SECTION 1 . Of certain elementary terms . . 1-34 Evidence 1-10 Issue 10-12 Objection 12-15 Four plights of objections . . . 15-22 General objection sustained . 15, 16 General objection overruled . 16-18 Specific objection sustained . 18-20 Specific objection overruled . 21, 22 "Incompetent," "Irrelevant," "Im- material " : meanings . . . 23-34 Etymological indications . . . 23, 24 Lexicographic suggestions . . 24-26 Text-writers' definitions . . . 27-30 Judicial definitions 31-34 SECTION 2. Cases, adjudicating upon objections. 35-77 SECTION 3. Striking out, and disregarding evi- dence 78-105 SECTION 4. Motions to direct, and to set aside, verdicts .......... 106-115 INDEX 117-123 v TABLE OF CASES CITED IN THIS VOLUME. PAGE Acetta v. Zupa, 54 App. Div., 33, 34 58 Adams v. Burr, 13 Misc., 247, 249 63 Adams v. Lloyd, 3 H. & N., 351, 361 31 Am. Bank Note Co. v. N. Y. El. R. R. Co., 129 N. Y., 252 Asbestos Pulp Co. v. Gardner, 39 App. Div., 654 43 Atkins v. Elwell, 45 N. Y., 753, 756 32, 44 Bergmann v. Jones, 94 N. Y., 51, 58 65 Brown v. Third Ave. R. R. Co., 19 Misc., 504 50 Charlton v. Rose, 24 App. Div., 485, 487 42 Christensen v. Met. St. R'y Co., 137 Fed. Rep., 708. . 114 Cohn v. Mayer Brewing Co'., 38 App. Div., 5, 6 107 Cole v. Boardman, 63 N. H., 580 31 Cook v. New Durham, 64 N. H., 419, 420 2 David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed. Rep., 980 33 Dean v. ^tna Life Ins. Co., 2 Hun, 358, 368 97 Dedric v. Hopson, 62 Iowa, 562 33 Delaney v. Hilton, 50 N. Y. Superior, 341, 344 100 Dodge v. Cornelius, 168 N. Y., 245 21 Emery v. Baltz, 94 N. Y., 408, 414 4] vii Vlll TABLE OF CASES CITED. PAGE Fealey v. Bull, 163 N. Y., 397 109, 113 Fox v. Erbe, 100 App. Div., 343, 348 67 Frankel v. Wolf, 7 Misc., 190, 192 59 Gawtry v. Doane, 51 N. Y., 84, 89 81, 96 Glenville v. St. Louis R. Co., 51 Mo. App., 629, 631 .... 60 Groh's Sons v. Groh, 80 App. Div., 85, 94 69 Groh's Sons v. Groh, 177 N. Y., 8, 14 71 Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100 94 96, 97, 98, 100, 101, 103, 104 Hemmens v. Nelson, 138 N. Y., 517, 529 106, 108, 110 Hine v. N. Y. El. R. R. Co., 128 N. Y., 517 i Hine v. N. Y. El. R. R. Co., 149 N. Y., 154 i Holcombe v. Munson, 1 Silv., Ct. of App., 228, 233 .... 14 Horbach v. State, 43 Tex., 242 32 Hubbell v. United States, 15 Ct. of Claims, 546, 606. .. 3 Huber v. Ehlers, 76 App. Div., 602, 605 51 Jackson v. Jackson, 100 App. Div., 385, 388 61 James v. Ford, 30 State Rep., 667, 670 39 Jenks v. Thompson, 179 N. Y., 20, 24 i, 54 Jewel. Mer. Agency v. Jewel. Pub. Co., 84 Hun, 12, 19 . .91 Levy v. Campbell, 20 S. W. (Tex.), 196 32 Linkauf v. Lombard, 137 N. Y., 417, 426. .. .106, 108, 109 McCloskey v. Davis, 8 Ind. App., 190, 197 55 McDonald v. Met. St. R'y Co., 46 App. Div., 143, 146, 147 107 McDonald v. Met. St. R'y Co., 167 N. Y., 66 110 McKeon v. See, 51 N. Y., 300, 305. 14 TABLE OF CASES CITED. IX PAGE McLoghlin v. Nat. Mohawk Vail. Bank, 65 Hun, 342, 348 48 McLoghlin v. Nat. Mohawk Vail. Bank, 139 N. Y., 514, 522, 523 8, 49 MacKinstry v. Smith, 16 Misc., 351, 354 51 Marks v. King, 64 N. Y., 628, 629 84, 86, 88 Matter of Accounting of Morgan, 104 N. Y., 74, 86. .89, 102 Mead v. Bunn, 32 N. Y., 279 16 Mead v. Shea, 92 N. Y., 122, 127 46 Miller v. Montgomery, 78 N. Y., 282, 286 82 Muhlker v. N. Y. & H. R. R. Co., 173 N. Y., 549 i Neilson v. Mayor, etc., of N. Y., 1 Silv., Supr. Ct., 471, 484 101 New Orleans, etc., R. R. Co. v. Moye, 39 Miss., 374, 385 21 Ohio, etc., R. Co. v. Walker, 113 Ind., 196, 200. ... 13, 15, 60 Pangburn v. State, 56 S. W. (Tex.), 72 33 People v. Manning, 48 Cal., 334 33 Platner v. Platner, 78 N. Y., 90 31, 86, 188 Plum v. Met. St. R'y Co., 91 App. Div., 420, 422 103 Pohalski v. Ertheiler, 18 Misc., 33, 35 92 Pontius v. People, 82 N. Y., 339, 346 87 Porter v. Valentine, 18 Misc., 213, 215 14, 32, 33 Quin v. Lloyd, 41 N. Y., 349, 354 79, 102 Roberts v. Johnson, 37 N. Y. Superior, 157, 160 96 Rush v. French, 1 Ariz., 99, 125 13 Ryan v. Town of Bristol, 63 Conn., 26 32 Shaw v. Shaw, 1 Dem., 21, 24 98 X TABLE OF CASES CITED. PAGE Shea v. Mabry, 1 Lea (Tenn.), 319 32 Shelley's Case, 1 Coke Rep., 946 8 Slocovich v. Orient Mut. Ins. Co., 108 N. Y., 56, 64. ... 66 Stall v. Wilbur, 77 N. Y., 162 12 Sterrett v. Third Nat. Bank, 122 N. Y., 659, 662 14 Stouter v. Man. R'y Co., 127 N. Y., 661, 664. 14 Story v. N. Y. El. R. R. Co., 90 N. Y., 120 i Taylor v. N. Y. C., etc., R. R. Co., 63 App. Div., 586, 588 37 Tooley v. Bacon, 70 N. Y., 34 15, 16, 17, 18, 65 Tozer v. N. Y. C. & H. R. R. R. Co., 105 N. Y., 617, 659 64 Turner v. City of Newburgh, 109 N. Y., 301, 308 63 Tuttle v. Hannegan, 54 N. Y., 687 12 U. S. Vinegar Co. v. Schlegel, 143 N. Y., 537, 544 90 Voorman v. Voight, 46 Cal., 392, 397 i, 57 Voss v. State, 9 Ind. App., 294 56 Wallace v. Vacuum Oil Co., 128 N. Y., 579, 581 47 Ward v. Kilpatrick, 85 N. Y., 413 21, 22 Wilder v. Accident Association, 14 State Rep., 365, 367 38 Witherow v. Slayback, 158 N. Y., 649, 662 52 TABLE OF TREATISES, ETC., CITED IN THIS VOLUME. PAGE Abbott, Law Dictionary 24 Anderson, Law Dictionary 24 Bentham, Rationale of Judicial Evidence 2, 6 Best on Evidence 2, 4 Blackstone, Commentaries 3, 11 Bouvier, Law Dictionary 25 Bradner on Evidence 30 Burrill, Law Dictionary 25 Century Dictionary 23, 24 Cyclopedic Dictionary 24 Greenleaf, on Evidence 3, 30 Jones on Evidence 29 Murray, New English Dictionary 23 Reynolds, on Evidence 29 Solicitor's Journal 6 Stephen, Digest of the Law of Evidence 1, 5, 28 Stephen on Pleading 11 Taylor on Evidence 29 Wharton on Evidence 12, 28 Wigmore on Evidence 3, 4 Words and Phrases Judicially Defined 3 xi HINTS FOR FORENSIC PRACTICE, SECTION I. OP CERTAIN ELEMENTARY TERMS. A feature of the phrase, " incompetent, irrelevant Negative and immaterial," which attracts imme- character ^iatc attention, is the negative quality evidence of each of the three component words, mies. arising from the common presence of the initial, inseparable preposition of privation, a peculiarity which recalls a complaint of Mr. Justice Stephen, that "the great bulk of the law of evidence consists of negative rules declaring what, as the expression runs, is not evidence." 1 The particular subject, in hand, belongs to the practical side of the law of evidence, and its dis- cussion presupposes an apprehension of the nature and methods of what may be termed the Anglican system of adducing forensic proofs, and an appre- ciation of the true import of certain terms. 1 Dig. of Law of Ev., introd. f " CERTAIN ELEMENTARY TERMS. EVIDENCE. This term, as might be expected, est's deft- has been copiously and variously defined. The word evidence" (evidentia) " sig- nifies, in its original sense, the state of being evident, i. e., plain, apparent or notorious. But by an almost peculiar inflection of our lan- guage, it is applied to that which tends to render evident, or to generate proof." 1 " Evidence is a word of relation .... By the term .... seems in general to be understood Bentham's any matter of fact, the effect, tendency definition O r design of which, when presented to of evidence. . v j i the mind, is to produce a persuasion concerning the existence of some other matter of fact a persuasion either affirmative or disaffirm- ative, of its existence." This broad and liberal definition is quoted in Cook v. New Durham. 3 The proposition contained in the first clause of the foregoing quotation is emphasized by a recent writer, who says: " Evidence is always a relative term. It signifies a relation between two facts, the factum probandum, or proposition to be estab- lished, and the factum probans or material evidenc- ing the proposition. 4 ... No correct and sure 1 Best on Ev., 11. two facts to be considered: 1. 2 Benth., Rationale of Jud. Evi- The factum probandum, or say, the dence, bk. 1, ch. 1. principal fact the fact the exist- 3 64 N. H., 419, 420; 1887. ence of which is supposed or pro- 4 Con/. Bentham: " In every posed to be proved the fact evi- case, therefore, of circumstantial denced to the fact which is the evidence, there are always at least subject of proof; 2. the factum DEFINITIONS OF EVIDENCE. 3 comprehension of the nature of any evidential question can ever be had unless this double or relative aspect of it is distinctly pictured." 1 Blackstone defined evidence as "that which s demonstrates, makes clear or ascertains definition the truth of the very fact or point in of evidence. ..-i j .-i ,-, ,, . issue, either on one side or the other. According to a later writer, "the word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the definition J v * i . i - of evidence, truth of which is submitted to investiga- tion, is established or disproved. 7 ' 3 This definition has had great vogue. A number of judicial opinions, in which it has been cited or quoted, are mentioned in a recent encyclopedic work. 4 "Evidence, in its narrow and technical sense, is a machine for the discovery of truth, Federal i i i i court's fettered and restrained by municipal law definition anc j by } oca j regulations, which vary greatly in different countries." 5 This group of definitions will be concluded by wigmore's giving the learned and elaborate defini- e ' 101 tion of evidence, laid down by a text- evidence. writer already cited: "Any knowable fact probans the evidentiary fact the 2 3 Comm., 367. fact from the existence of which 3 Greenl. on Ev., 1. that of the factum probandum is 4 Words & Phrases Jud. defined, inferred" (Rationale of Jud. Ev., 2522; 1904. bk. 5, ch. 1). silubbell . U. S., 15 Court of 1 1 Wigmore on Ev., 5; 1904. Claims, 546, 606, Dissent.; 1879. 4 CERTAIN ELEMENTARY TERMS. or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal, for the purpose of producing a conviction, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked." 1 From the foregoing, it is clear that judicial judicial evidence, with which alone we have now evidence to do, is a species of a genus. It has a species. k een Described a s na tural evidence, re- strained or modified by rules of positive law, some of which are exclusionary and others investitive. 2 The same author indicates the character of the latter class of rules, thus: rules " in vesting natural evidence with an artificial weight, and even in some instances attributing the property of evi- dence to that which, abstractedly speaking, has no probative force, at all." 3 The relation of logic to judicial evidence is un- Reiation of doubted and intimate. The Anglican law logic to of evidence may be said to consist of an evidence, application of the unalterable principles of logic, with exceptions, from the ordinary results of applying the same, originating in a concern for the social safety or utility, and in considerations of feasibility of judicial administration, many of the latter being distinctively grounded in the regard 1 Wigmore on Ev., 3; 1904. 3 Ibid. 2 Best on Ev., 34. DEFINITIONS OF EVIDENCE. 5 of the Courts for the consecrated right of trial by jury. The exceptions so established are, undoubt- edly, in the main exclusory; wherefore, the chief task of the logician, entering the legal domain, is to appreciate, correlate and memorize the excep- tional exclusions. Mr. Justice Stephen, contemplating these ex- ceptions, exclaimed that he found him- self in "the position of a person who, of negative never having seen a cat, is instructed about them in this fashion : ' Lions are not cats, nor are tigers nor leopards, though you might be inclined to think they were/ Show me a cat, to begin with, and I at once understand what is meant by saying that a lion is not a cat, and why it is possible to call him one." 1 Accordingly, that jurist proposed an affirmative proposal to key to the mystery encompassing the identify na ture of judicial evidence, by submit- and ting that what may be judicially proved includes (only) 1st, all facts in issue, and 2d, all facts relevant to the issue. This would make relevancy to the issue, except in the extreme (1st) case mentioned, the sole criterion, indeed the synonym, of admissibility of evidence. But that proposal has been attacked by an criticism acu te writer, who insists that it is only of that by an arbitrary use of the word, "re- proposai. i evantj that the rules relating to rele- 1 Dig. of Law of Ev., introd. 6 CERTAIN ELEMENTARY TERMS. vancy can be brought within the same class as rules which determine what classes of fact tend to prove a matter in question; and points out that hear- say, being testimony reproducing " statements which, if the persons making them were called as witnesses, would be perfectly relevant," is ex- cluded because those statements "are wanting in the sanction and the tests which would apply to them if they were so made," the rule of exclusion here being a different one, and founded on a dif- ferent reason, and "the doubt and suspicion which attend them being a doubt and suspicion attaching to their accuracy." 1 The ultimate basis of our system of the ad- mtimate duction of judicial evidence, as has often basis of been remarked, is the recognized con- Anglican . . law of catenation of most of the events sub- evidence, mitted to human experience and observa- tion. Seldom does a fact stand without environ- ment, utterly isolated and solitary. The relation of causality, between two facts, is the one of principal significance to the logician and the stu- dent of the law of evidence. 2 Aristotle's dictum, de omni et de nullo, inevitably controls the processes, because that philosopher's discovery was of a universal law of mental operation; but the princi- ples of a deductive logic are not the sole guide of 1 Solicit. Jour., vol. 20, p. 906. cause is evidence evidentiary of 2 " Every chain of causality is a its effects (Benth., Rationale of Jud. chain of evidence. Every effect is Ev., bk. 5, ch. 1, n.). evidentiary of its causes: every LOGIC AND EVIDENCE. 7 the judge or the advocate, for the reason, already intimated, that positive, municipal law has super- imposed various, mainly exclusory, rules. The books are filled with reminders of the distinction between natural and judicial evidence, as also be- tween logical and legal relevancy, but the observa- tions there encountered are most frequently of a more or less vague and general character. An attempt will be made to illustrate the ap- niustration plication of the formal syllogism to forensic of the proof; which illustration will serve to in- anTthe' dicate and emphasize the legal differ- limitations, entiation of the ordinary logical process: of the j n an ac tion, brought by a depositor in syllogism, 1 . . . 1 in forensic a bank, against the latter, to recover a proof. balance, on account of the principal of his deposit, with interest thereon, the issue, raised by the pleadings, turned on the question whether there had been an agreement to pay interest. Plaintiff having produced evidence tending to show such an agreement, defendant introduced evidence tending to show an agreement that no interest was to be paid, whereupon plaintiff, in rebuttal, offered evidence that he had received in- terest on balances, on deposit in the other banks in the same locality; and sought to show an offer, made by one of those banks, to pay a specified rate of interest on all the money which he had, for deposit; also to show what was the prevailing rate of interest usually allowed by the local banks, 8 THE SYLLOGISM IN COURT. on their depositors' balances. Held, inadmissible, as "too remote," and tending to raise " collateral issues." One of the steps in plaintiff's progress toward the desired conclusion, at the trial, which the ap- pellate court condemned, may, it is believed, be exhibited, in its strictly logical aspect, thus: Major premiss: What all the local banks, other than defendant, agreed to do, is (probably) what defendant agreed to do. Minor premiss: All the local banks, other than defendant, agreed to pay interest. Conclusion: Therefore, defendant agreed to pay interest. 2 By the ruling of the highest Court, adverse to plaintiff's offer of evidence, the reasoning t analytically exhibited in the foregoing subversive syllogism, which was an instance of Bar- i logical. b ar(lj w&s, by no means, condemned. All that logic looks to is the legitimacy of the act of inferring the conclusion from the premisses. The invalidity of a conclusion, arising from fallacies (violations of the rules governing the process of inference}, is the same, in all reasoning, legal and 1 139 N. Y., 514, 523. in Richard Shelley, and never was 2 " Argument. That which origi- vested in Edward Shelley. nally vests in the heir, and was not "And therefore the use vested in the ancestor, vests in the heir by in Richard Shelley by purchase " purchase. (Report of argument of counsel, in "But this use originally vested Shelley's Case, 1 Coke Rep., 94 b; 1579, A. D.). LOGIC AND EVIDENCE. 9 non-legal. The Conclusion, in the foregoing syl- logism, was a valid deduction. But the law the Court took exception to the premisses. First, as to the major premiss. This proposi- Evidence- tion, to the extent of its validity, was one exceptions obtained by induction and generalization, subvert the / i . i l_ premisses from ordinary experience and observa- ofsyiio- tion. It did not appear, in evidence or gisms. utterance, but, rather, was subconsciously in the reasoner's mind. While, as the court ob- served, there might be "what is called moral evi- dence, of a more or less convincing" character, in its favor, it was rejected as being legally "too re- mote," i. e., too far removed from the legal standard of probability. The degree of probability, in other words, was not sufficiently high for juristic pur- poses. As soon as it was determined to reject this major proposition, the syllogism was doomed, and the minor premiss became unserviceable, be- cause two premisses are essential to every argu- ment. But Second. The minor premiss 1 was excluded for Evidenu- a further, independent reason, viz.: the ry facts settled repugnance of the courts to the are minor raising of collateral issues. Had this evi- premisses. dentiary fact been admitted, the court and jury would, thereupon and thereby, have entered upon the trial of as many subordinate issues, as there were local banks concerned in the proposed evidence. 1 N. B. This was the evidentiary fact. 10 CERTAIN ELEMENTARY TERMS. The Conclusion of the syllogism was the fact in The -Fact issue; unless it be better to consider it as in issue" serving as the major premiss of a syl- logism, later in logical order, the conclu- sion of which would be, that defendant llogism ' was indebted to plaintiff in a specified sum, as asserted and denied, respectively, in the pleadings (the " issue"). The reasoning, in forensic contests, as in human M . thought and action generally, proceeds r - ordinarily in enthymenies syllogisms acter of -, r , i wherein one of the premisses is - pressed, and a series of which forms what the logicians term a sorites. The mind, in its eager pursuit of the desired, ultimate con- clusion, hurries from premiss to conclusion, and from the latter to a new premiss, and thence to a later conclusion, unconscious of the obedience ren- dered by it, subject to the possibility of a be- trayal into fallacy, to Aristotle's law. In these legal arguments, specifically juristic rules are con- tinually intervening, to thwart the progress along strict logical lines, by demolishing premisses. ISSUE. Blackstone has already been quoted, as IMI referring to the "fact or point in issue," (of fact); its and Mr. Justice Stephen, as proposing to relation to res trict (or extend) all admissions of evi- dence to (1) facts in issue, and (2) facts relevant to the issue. In pausing, a moment, to consider this legal term, it is proposed to ignore the common- PLEADINGS AND ISSUE. 11 rambling narratives of chancery, and keep in ex- clusive view the^ultra-refined system of pleading, which grew up in the common-law courts, the gen- eral aim whereof was, to ensure "the orderly pres- entation, upon the record, of the contentions of the respective parties, in relation to the subject- matter of the controversy." 1 This aim was promoted by a series of " plead- ings" (only one of which was, possibly, i \ / 1 1 i* i * & plea) , following the issuance and service law of the original writ, and commencing with plaintiff's declaration, to which defend- ant might interpose his plea, which might be suc- ceeded, in alternation, by the replication, rejoinder, rebutter and surrebutter. The net result of this scheme purported to be "to compel the pleaders so to manage their alternative allegations as, at length, to arrive at some specific point or matter affirmed on one side and denied on the other." 3 This point attained, the parties were said to be "at issue" ad exitum. 4 The "issue," then, was literally the exitus, exit issue, the or emergence of the contending parties, object of from the field of preparatory altercation, img ' and entrance upon the stage of trial. Relevancy to the The formation of an issue was the end of issue. a jj common-law pleading. The word, "issue" (referring, now, to issues of fact, as dis- 1 Steph. on PL, 2. 3 Steph. on PI., 59. 2 3 Blacks. Comm., 310. */Vrf..- 3 Blacks. Comm., 314. 12 CERTAIN ELEMENTARY TERMS. tinguished from those of law) came to denote the fact, in regard to which the parties, through the sifting process of the pleadings, at length reached the respective attitudes of affirmation and denial. This circumstance may explain the language of Mr. Justice Stephen, where he speaks of " facts relevant to the issue," and, in the next sentence, of a fact " relevant to another fact." * It will be remembered, here, that a "fact in issue" is a conclusion: to prove which The "issue", reached by conclusion is the function of evidentiary pleading, is f acts g ee Tuttle v. Hannegan, 2 and Stall v. Wilbur, 3 where the Court says, of a complaint, that "the pernicious practice was fol- lowed, of setting forth evidence, instead of facts to be established by evidence": which raises a doubt as to the propriety of Stephen's proposed rule, making the "fact in issue" admissible in evidence. "An issue is never raised as to an evidential NO issue fact; the only issues the law knows are iden- those which affirm or deny conclusions from one or more evidential facts." 4 OBJECTION. What is an objection to evidence? objections To define an objection is a matter of no to evidence; difficulty, it being the formal, oral state- ment made by counsel, at trial, of his opposition to the introduction of a document of- fered, or the allowance of an answer, by a witness, 1 Dig. of Law of Ev., introd. 3 77 id., on p. 162. 2 54 N. Y., on p. 687. 4 Wharton on Ev., 3d ed., 26. OBJECTIONS TO EVIDENCE CLASSIFIED. 13 to a question put, by his opponent. Objections have been divided into general and specific. A general objection is where counsel, when evi- oenerai dence is offered, or called for, says: "I objection, object," l either without more, or with ad- ditions which the law condemns for a lack of pre- cision, and which, therefore, fail to prevent the objection from being relegated to the " general" class. A specific objection is one in taking which coun- speciflc sel indicates, with satisfactory definite- objection, ness, one or more grounds of his opposi- tion to the introduction of the proposed evidence. It may be safely stated, that a general objection General i s a P* ^ ^ e harmful to the objector. "A objection prudent practitioner will hardly risk any usually un- pom t O n a general objection." 2 More- advisable. " over, where counsel volunteers a general objection, he may always be compelled to make the objection specific, at the demand of his opponent, or by the Court on its own motion. Certain of the settled principles, believed to govern objections to evidence, may be noted here: The purpose of requiring an objection to be TWO pur- specific is (1) to aid the trial judge, and poses of (2) inform the opposing counsel, requiring u It fe of i mporta nce, that the points gpeciflcness. . 111 i 1111 intended to be taken on appeal should i See 113 Ind., 200. 2 Rush v. French, 1 Ariz., 99, 125. 14 CERTAIN ELEMENTARY TERMS. be taken on the trial. It is important that the Notice to judge should know what he is called upon judge and to decide, and what is the theory of the objector. It is important, also, that the other side understand the objection and its point." 1 "If a party calls upon the trial court to make a Foundation ruling in his favor, he must specify, with tor allegation reasonable clearness, the point that he desires considered and decided, in order to predicate error upon an exception to the ruling against him." 2 "The object of the rule requiring objections to prevention evidence to be made specific, and to point of surprise. ou ^ the precise defect existing therein, is to prevent surprise, and enable the party offering it to obviate such difficulties as are merely formal, and can be cured by reforming the question, or which by further proof can be removed, and the question rendered competent." 3 "It is an ancient and sound rule, that, when the objection to objection is to the mode of proving a fact, mode of and not to proof of the fact itself, it must be distinctly placed upon that ground, so that the opposite party may obviate the ob- jection by proving the fact in a legal manner." 4 i McKeon v. See, 51 X. Y., 300, 3 Holcombe v. Munson, 1 Silv. Ct. 305. of App., 228, 233. 2Sterrett. Third Xat. Bank, 122 4 Porter v. Valentine, 18 Misc., N. Y., 659, 662; Stouter v. Man. 213, 215. R'y Co., 127 id., 661, 664. FOUR PLIGHTS OF OBJECTIONS. 15 "There is reason for requiring the particular ob- objection, as jections to be stated with reasonable cer- aid to court, tainty, for, in the hurry of a trial, it can- not be expected that particular objections will occur to the judge, although, if stated, he would readily perceive their force. Counsel, who are presumed to have studied the case, ought to be able to state the particular objections, and, if none are stated, it is fair to assume that none exist, since an objection that cannot be particularly stated is not worth the making." l Four distinct cases may be presented, on a trial, Foursepar- VIZ ' : wnere a general objection is (a) sus- ate plights tained, or (b) overruled; and where a specific objection is (c) sustained, or (d) overruled. The judicial rules be- lieved to prevail in these several cases, will be successively enumerated. The first three of those rules are taken from one Opinion, 2 and given hi the Court's own language. Though all the re- marks of the court, quoted from that Opinion, were not called for by the questions before it, the rules therein stated, may, in view of numerous judicial citations, be considered authoritative. In commenting on the four rules, in succession, the party, proposing the evidence objected to, will, for brevity, be styled the interrogator. i Ohio, etc., R. Co. v. Walker, 113 2 70 N. Y., 34. Ind., 196, 200. 16 GENERAL OBJECTION; EFFECT. (a) General objection sustained. "Where evi- oenerai dence is excluded upon a mere general objection objection, the ruling will be upheld, if sustained. any g roun( j j n f ac t existed for the ex- Effect. i . ! elusion. Comment. Here, the interrogator appeals. An First rule appellant having the burden of showing considered, error in a ruling of which he complains, 2 it is obvious that, under this rule, the interrogator, in order to secure a reversal of the exclusion, must be able successfully to challenge his opponent to point out a single one of all the exclusionary rules, relating either to the form or to the substance of evidence, which justified the trial court's action. Failing in this, the interrogator will be held to have waived precision in his opponent's objection, and to have understood the ruling to be based on the ground or grounds of exclusion declared valid, on the appeal. The words, "in fact," in the language of the court, should not be understood as implying any contrast to the law, they being, doubtless, in the nature of an unnecessary intensive. (b) General objection overruled. "Where there General ^ s a general objection to evidence, and it objection is overruled, and the evidence is received, -overruled. fa Q ruling will not be held erroneous, un- less there be some ground which could not have been obviated if it had been specified, or un- i Tooley v. Bacon, 70 N. Y., 34. 2 Mead v. Bunn, 32 N. Y., 279. GENERAL OBJECTION OVERRULED. 17 less the evidence in its essential nature be incom- petent." 1 Comment. Here, the objector appeals. It may second conduce to clearness, in remarking upon rule this rule, to throw it into a form more considered. near j y resembling that of the preceding one, thus: Where evidence is received over a mere general objection, the ruling will be upheld, if the interrogator could have obviated a specific ob- jection, in case such had been made; which, pre- sumably, he could not have done if the evidence was so objectionable as to merit the description of being "in its essential nature incompetent." It is impossible to discuss, fully, the relations of this hypothesis to this presumption, before settling the meaning of "incompetent," a point not yet reached, in the study. The best that can be done, at pres- ent, is to submit the following description of the situation of the parties in the appellate court: The objector is attempting to secure a reversal of the admission of evidence, and has the onus of showing that error was committed below. He may say, either: 1st, "True, I only objected generally, but that was sufficient, because the evidence was in its essential nature incompetent meaning absolutely and incurably inadmissible and such evidence should have been excluded upon a mere stop- word;" or, 2d, "I do not contend that the evidence was in its essential nature incompetent, but there 1 Tooley v. Bacon, ubi supra. 2 18 SPECIFIC OBJECTION; EFFECT. were one or more less radical grounds for its ex- clusion, and, if I had specified such ground or grounds, on the trial, my opponent could not have obviated the difficulty. Hence, error." (c) Specific objection sustained. Where evidence is excluded upon an objection, the grounds Specific J ' objection whereof are specified, the ruling must be sus tained upon that ground, unless the Effect. evidence excluded was in no aspect of the case competent, or could not be made so." l Comment. Here, the interrogator appeals. The Third rule objector has succeeded, below, in shutting considered. ou t evidence, on a particular specification of the ground of its asserted inadmissibility. The essence of the rule is contained in the words, "upon that ground," occurring therein. That is, the task of appellant is, in general, merely to subvert that ground of exclusion. Maybe, the trial court ought to have shut out the evidence, but if not on that ground, he will secure a reversal of the exclusion. It remains to consider the two exceptions. If, in the words of the court, 1st, "the evidence excluded was in no aspect of the case competent," or, 2d, "could not be made so," the exclusion will be sustained, i. e., appellant will fail, though the ob- jector specified amiss. Manifestly, the appealing interrogator has the onus, not only of subverting his opponent's specification, but also of negativing the two exceptions. That is to say, after showing 1 Tooley v. Bacon, ubi supra. SPECIFIC OBJECTION SUSTAINED. 19 that the ground, upon which the evidence was ex- cluded, is not tenable, he must go further, and show that he is not concluded by the residue of the rule. That residue containing the word " com- petent," it is, here also, true that it is impossible to discuss the rule fully, at present. The following observations, however, may be made: The word, "or," connecting what have been above designated the two exceptions, should, almost certainly, be read "and," because the appellant has to meet both. Thus reconstructed, the latter portion of the rule imposes on the appellant the task of show- ing it to be untrue that the evidence which he offered "was in no aspect of the case competent;" or else, assuming that the evidence was of that character, of showing that he could have made it competent, if his opponent had apprised him of the defect by a different, and correct, specification. At this point, it must be confessed, a region of A difficulty obscurity is entered, because of a doubt stated. ag Q fa e meaning of "in no aspect of the case competent." Is evidence, so characterized, identical with evidence "in its essential nature in- competent" ? Apparently not, for it is incon- ceivable that evidence of the latter description should "be made" competent. Hence, probably, the meaning of the former phrase is, "for no pur- pose admissible, when offered." Such an inter- pretation leaves room for an operation of the hy- pothesis, that the evidence is capable of being 20 SPECIFIC OBJECTION; EFFECT. made competent. Upon this assumption, a situa- tion contemplated by the latter portion of this rule might occur as follows: A party attempting to discredit his adversary's illustration witness by proving contradictory state- under aid men ts made, by the latter, out of court, rule. without first laying a foundation by in- terrogating the witness sought to be discredited, concerning such statements, is met by an objection to the proposed evidence, as hearsay. The evi- dence is excluded. Ordinarily, the interrogator, on appeal, should secure a reversal of the exclu- sion ; for, if the objector had made the right specifi- cation, the interrogator could have recalled the witness sought to be discredited, for cross-, or further cross-examination. But, suppose that wit- ness departs this life between his examination and the attempt to impeach him. In such case, the interrogator could not lay such foundation could not make the impeaching evidence admissible and the appellant must fail, i. e., the ruling of the trial court will be sustained. This illustration is offered for what it may be worth. If evidence "in its essential nature incompetent" Evidence -in exc i u( jed, on a trial, under objection, its essential ' i i' nature in- an erroneous specification of ground, by competent" ^g objector, oueht on principle to be as compared M.I- 1 with that -in free from peril to him as a mere general no aspect of objection, which, as has been seen, would the case J . ' competent." DC SUIIlCient. SPECIFIC OBJECTION OVERRULED. 21 (d) Specific objection overruled. Where a specific objection is overruled, and the evidence Specific J objection is received, the rule appears to be, that overruled, ^g objector must stand on his specifica- Effect. i MI i tion, and will not secure a reversal of the admission of the evidence, on appeal, if he assigned amiss. 1 Comment. Here, the objector appeals. This rule, Fourth if correctly stated, appears to be a mere rule branch of the rule, that a party cannot considered. . , , . n j take an objection in an appellate court, which he did not take below. "It is a general rule, that a question will not be considered, that is raised for the first time in this court." 2 In Ward v. Kilpatrick, infra, which was an ac- case tion to foreclose a mechanic's lien, an supposed ex p er t witness was called, for plaintiff, to justify j i j i. j. , enunciation said asked, on his direct examination, of whether certain frames, as set in the house, made a part of the latter, and whether the house would be finished without them. To which, defendant objected "as immaterial, and that the mechanic's lien-law does not authorize any lien upon mirror-frames or hat-stands." Objection overruled, and evidence received. On defendant's appeal, he urged that "the evidence of a custom or usage" had "been objected to," and was "clearly inadmissible. . . . The evidence was incom- i See Ward v. Kilpatrick, 85 N. Y., 2 Dodge v. Cornelius, 168 N. Y., 4! 3. p. 245; see, also, 39 Miss., 385. 22 SPECIFIC OBJECTION; EFFECT. petent, and should have been excluded." The Court of Appeals refused to sustain defendant's exception, saying: "A witness, who was a cabinet-maker, and had done that kind of work in the construction of houses, was asked if these frames, as set in the house, made a part of the house, and if the house would be completely finished without them. The objection made was, not that the opinion of the witness upon the point was incompetent, but merely that the evidence was immaterial, which conceded its competency, and that the act of 1875 did not authorize a hen upon mirror-frames or hat-stands. The objections taken furnished no valid reason for rejecting the evidence, and it is unnecessary to debate the one now urged, which was not even suggested upon the trial." 1 It may be proper to infer that, if the evidence supposed objected to, in the case cited, had been exception "in its essential nature incompetent," the 40 highest Court would have reversed the fourth role. , . . < i T admission of the evidence. In other words, it is suggested that the fourth rule is sub- ject to an exception, as follows: Where evidence totally and incurably inadmissible is received over objection, a specific but untenable ground for which is stated, the error in the specification will not be fatal to the objector; the admission will be re- versed. i 85 N. Y., 416. DERIVATION OF CERTAIN TERMS. 23 The next branch of this study will be to inquire of into the meanings of the three words, a k ove q uo ted as frequently used in de- irrelevant," scribing the ground of objection to evi- "immate- dence, (1) as indicated by etymology, (2) as given in the law-glossaries, (3) as stated in text-books, and (4) as announced in, or inferable from, Opinions of the Courts. (1) Etymological Indications. Incompetent. " Competent" is the present par- incompe- ticiple of the verb " compete," used, how- tent." ever, in its neuter and now obsolete sense, Meaning from of "to fall together;" the latter portion Etymology. o f the word being derived from the latin verb peto, having the same root as the aorist of the greek TTITTTO). Whence, "competent" signifies fall- ing together, coinciding, fitting, admissible. 1 Irrelevant. "Relevant" is from the verb rele- -irreievant." vare, to lift again, and so to relieve, help, assist: whence "relevant," by successive shades of meaning, comes to signify to the pur- pose, germane (to a controversy), applicable. 2 Immaterial. "Material" is derived from the "immate- latin materia, matter; and the grades of rial." id. meanm g are (i) no t spiritual, (2) per- taining to the matter, not to the form, of a proposi- tion, (3) having such relation (to a controversy) i See Murray's New Eng. Diet. 2 See Century Diet. 24 CERTAIN ELEMENTARY TERMS. that it ought to influence the determination, (4) significant. 1 From this, it appears that etymology furnishes Results of the following equivalents: Incompetent = etymology, inadmissible ; irrelevant = inapplicable ; im- material = insignificant. (2) Lexicographic Suggestions. Anderson: COMPETENT proper or admissible, as Anderson, evidence. RELEVANT as applied to tes- Dennitions. timony, that which directly touches upon the issue made by the pleadings, so as to " assist" in getting at the truth of it. MATERIAL of the substance, essential, important. Abbott: INCOMPETENT as applied to evidence: Abbott, not proper to be received; inadmissible, Id - as distinguished from that which the court should admit. IRRELEVANT not material to an issue. MATERIAL important; as applied to evi- dence, much the same as relevant. Matters are pronounced material or immaterial to an issue, with the meaning that they are relevant or irrel- evant. Cyclopedic: COMPETENCY in the law of evi- cyciopedic. dence, that quality of evidence which Id - renders it proper to be given on the trial of a cause, if it be relevant to the issues. INCOM- PETENCY of evidence: not proper to be received. 1 See Century Diet. DICTIONARY DEFINITIONS. 25 RELEVANT in the law of evidence: having rela- tion; applicable; applicable to the issue. IRREL- EVANT that which does not support the issue, and which, of course, must be excluded. MATERIAL that which is essential or important. IMMATE- RIAL Not material; not essential or important. Bouvier: COMPETENT evidence: that which the Bouvier. very nature of the thing to be proven re- 1(L quires. RELEVANCY applicability to the issue; that quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue. MATERIALITY capability of properly influencing the result of the trial. Burrill: COMPETENCY capability; admissibility. Burrm. RELEVANT in the law of evidence: hav- M - ing relation; applicable; applicable to the issue. IMMATERIAL not material; not essential or important. It cannot be denied, that whatever light has been thrown upon the three words, "in- competent," " irrelevant" and "imma- teiia!, " by the inquiry into their deriva- tions, and consultation of the law-diction- aries, leaves a decided impression that they differ but little from one another, in meaning, and, which is of special moment, that the idea run- ning through all three is not much more definite than a characterization of evidence, offered, as un- suitable, improper, inadmissible. of definitions, etc. 26 CERTAIN ELEMENTARY TERMS. Were such impression correct and indubitable, the result would be, to relegate an objection, in- volving the use of one or more of the three words, by way of an attempt at specification of ground, to the class of general objections, with the several dangers, and contingent immunities, to the re- spective parties, of which a view has been obtained in the foregoing mention of certain rules of prac- tice. It will be noticed that one of the law-lexicons, -immate- cited, expressly asserts the substantial iiai," not equivalence, in legal content, of imma- essentially . .. , . a word of tenality and irrelevancy; but a close relation, scrutiny may be deemed to disclose at least a linguistic difference between "immaterial," on the one hand, and each of the two remaining words, on the other, in this, that "immaterial" appears to be less clearly a word of relation. That which coincides with (i. e., is competent), and that which assists (i. e., is relevant), call insistently for the coincident object, and for that to which the assistance is rendered, respectively; whereas "im- material" may be regarded as a simple assertion of non-significance or vacuity. In such expres- sions, however, as "material to," which occur in legal phraseology, a notion of relativity crops out, even in this adjective; and so, it may be, an ambiguity arises, which may explain diver- gences hi the expressions contained in judicial Opinions. DEFINITIONS BY COURTS, ETC. 27 It is next in order, to attempt to ascertain Definitions whether the suggested impressions of similarity, and of a common generality, treatises and court in the three words, is confirmed or modi- opinions. fi ec j by intimations contained in the legal treatises, and in the judicial opinions upon which the former are founded. It is possible that the judicial expressions and decisions will exhibit a tendency to fix a technical import on one or an- other of the words, irrespective of etymological considerations, and even inconsistent with the pronouncements of the lexicographers; authorita- tively establishing differences among them, and according a specific quality to one or more of the trio. In view of the nature of judicial decisions, the Availability opinions of the courts will not be expected of judicial ^0 prove a field fruitful in formal defini- tions of words. Rather, will information, as to the verbal meanings, be obtained by inference from adjudications upon the quality and suffi- ciency of objections taken by advocates in particu- lar cases. In other words, the search, in the Re- ports of decided cases, is most likely to result in learning whether an actual objection, taken in a particular cause, and involving the use of one or more of the three words, was held to be general, or specific, as distinguished from discovering a pro- crustean definition of any one. 28 CERTAIN ELEMENTARY TERMS. (3) Text-writers' Definitions: Stephen, who proposed to identify relevancy, Stephen, and admissibility, suggested the following on relevancy, definition of "relevant": "A fact is rel- evant to another fact, when the existence of one can be shown to be the cause, or one of the causes, or the effect or one of the effects, of the existence of the other, or when the existence of the one, either alone or together with other facts, renders the existence of the other highly probable or im- probable, according to the common course of events." l The assertion may be ventured, that the average ^k trial-advocate would not, invariably or definition readily, entwine his apprehension about red- the ramifications of this definition, when called upon instantly to decide whether or not to trust to the word "irrelevant," as a specification of the ground of an objection; nor would he need to, if relevancy and admissibility were synonymous, for, in such event, "irrelevant" would clearly cease to possess a specific import. The definition of "relevant," above-quoted, has been asserted to have been taken from an earlier Indian pamphlet, and to have been abandoned by the writer to whom it is generally attributed. According to Wharton, "relevancy is that which conduces to the proof of a pertinent hy- pothesis;" the hypothesis, referred to, be- 1 Dig. of Law of Ev., introd. TEXTUAL DEFINITIONS. 29 ing one which, "if sustained, would logically in- fluence the issue. . . . Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable." * "In view of the complexity of human affairs, and jones, the infinite variety which questions of fact on relevancy, assume in courts of justice, it is obvious that no definition of the term, relevancy, can be very satisfactory, or afford any very practical aid." The relation, expressed by the words "logically chamber- probative tendency," which one fact sus- layne, tains to another, is termed relevancy. on relevancy, Q f ^ th(J ^ f um i s he S nO test." 3 "The only practical rules that can be formulated, Reynolds, as to the relevancy of those facts from on relevancy, the existence of which a fact in issue may be probably inferred, are mere enumerations, on the one hand, of certain classes of facts which have been ascertained by experience to be capable of supporting an inference, as to other facts, suffi- ciently probable to be the foundation of a legal judgment, and, on the other hand, of certain other classes of facts from which no inference could be drawn carrying with it such a high degree of probability as would justify any court in making it the basis of its decision." 4 iEv., 3d. ed., 20, 21. 3 Taylor on Ev., Chamberlayne's 2 Jones on Ev., 136. Notes, 2. 4 Reynolds on Ev., 6. 30 CERTAIN ELEMENTARY TERMS. "As to relevancy, there is a distinction between Bradner, logical relevancy and legal relevancy, on relevancy. . s . There is a point, on the ques- tion of relevancy, where it depends entirely upon the discretion of the judge, namely, in cases where the question is a close one as to whether certain facts are too remote, although connected with the fact in issue. Upon such questions, no exact rule can be formulated." 1 The writers of treatises seem generally, on ex- oreenieaf.on animation, not to have deemed it feasible, competency. or worth the while, to propound formal definitions of competency of evidence. Greenleaf appears to be exceptional, in this respect; he stat- ing that, "by competent evidence is meant that which the very nature of the thing to be proved requires, as the fit and appropriate proof in the particular case." This might perhaps be con- sidered as good a definition of evidence, as it is of competency. It is re-stated, verbatim, by a later author. 3 No formal definition of "material," as applied to evidence, has been encountered in any of Paucity of i-ii i textual the text-books which have been con- dennition* of suited. Its near relative, "relevant," on the other hand, is almost universally de- fined, and frequently discussed at length, hi those works. 1 Bradner on Ev., introd., ix. 3 Bradner on Ev., 13. 2 Ev., 16th ed., 2. JUDICIAL DEFINITIONS OF TERMS. 31 (4) Judicial Definitions: In 1858, the English Court of Exchequer, dis- cussnl g a litigated point, remarked: "Am- biguity has arisen from the word, rele- relevancy." vanC y^ being used in different senses, whereas, if it always had the same meaning, the obscurity which surrounds this question would be removed." J In Platner v. Platner, 2 the Court of Appeals said: " The meaning of the word, relevant, as applied judicial to testimony, is that it directly touches definition of upon the issue which the parties have -relevancy." ma( j e by their pleadings, so as to assist in getting at the truth of it. It comes from the French reliever" (sic.), " which means to assist. Whatever testimony was offered, which would as- sist in knowing which party spoke the truth of the issue, was relevant; and when to admit it did not override other formal rules of evidence, it ought to have been taken. . . . Was the testimony irrelevant? By which is meant, in this case, that the connection between the fact which it proves and the fact in issue is too remote and conjec- tural." In Cole v. Boardman, 3 it was said: " Legal relevancy includes logical relevancy, and id. requires a higher standard of evidentiary force. A fact logically relevant may be rejected if, i Adams v. Lloyd, 3 H. & N., 351, * 78 N. Y., 90. 361. 3 63N. H., 580. 32 CERTAIN ELEMENTARY TERMS. in the opinion of the judge and under the circum- stances of the case, it be considered essentially mis- leading or too remote." In Levy v. Campbell, 1 it was said: "Relevancy, as that term is used by writers, on id, the law of evidence, omitting metaphysi- cal distinctions, is that which conduces to prove a pertinent theory in a case, or one which influences or controls the case." In Atkins v. Elwell, 2 it was said: "Although, in strictness, the epithet of incom- id of petent, applied .... to a paper "incompe- .... may indicate that .... it was objectionable in its form or mode of authentication, rather than for what it contained, yet the common and different use of the phrase has worn off the sharpness of this meaning." Greenleafs definition of "competent evidence" judicial is quoted, verbatim, in Porter v. Valen- definitions of tine, 3 Shea v. Mabry, 4 and Horbach v. " State. 5 In Ryan v. Town of Bristol, 6 it was said: "The real grievance of which the defendant com- id. plains is, that there was no competent evi- dence before the jury upon the question of con- tributory negligence, and that the court ought to have so told the jury and in effect directed a ver- i 20 S. W. (Tex.), 196. 4 1 Lea, 319. M5 N. Y., 753. 5 43 Tex., 242. S 18 Misc., 213. 6 63 Conn., 26. JUDICIAL DEFINITIONS OF TERMS. 33 diet on this point. By competent evidence here we understand the defendant to mean relevant evidence." In Dedric v. Hopson, 1 it was said: "The word, incompetency, is .... used M of to express the thought that certain evi- incompe- dence cannot be lawfully received, or that a witness cannot lawfully testify. It would be quite properly used to express the idea that a witness could not be required to testify concerning certain facts." In Porter v. Valentine, 2 it was said: "Evidence offered in a cause, or a question pro- id. of pounded, is material when it is relevant material." an( j g Oes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case." In David Bradley Mfg. Co. v. Eagle Mfg. Co., 3 it was said: "Materiality means the property of substantial id. importance or influence, especially as dis- tinguished from formal requirement." In Pangburn v. State, 4 it was said: "Materiality, with reference to evidence, does id. not have the same signification as rel- evancy." In Peo. v. Manning, 5 it was said: 62 Iowa, 562. 4 56 S. W. (Tex.), 72. 218 Misc., 213. *48Cal., 335. s 57 Fed. Rep. 980. 3 34 CERTAIN ELEMENTARY TERMS. "There is a wide distinction between imma- Difference terial and incompetent evidence. It may between k e ma t e rial. and tend to prove the issue, "immaterial" . andincom- but uicompetent for that purpose under the rules of law. On the other hand, it may be competent evidence in a proper case, but immaterial to any issue before the court." The meaning of the second sentence is obscure. From the foregoing definitions, gathered from inferences treatises and judicial Opinions, it may be from permissible to make the following infer- ences: " Competent" means admissible, judicial and " incompetent," inadmissible; where- definitions. ore ^ an objection to evidence, as incom- petent, is absolutely general, i. e. y affords no in- timation of the ground of the objection to the admission. "Relevant" and "material" agree, in referring to matter of substance, as distinguished from technicalities of form or procedure; in other words, relevant or material evidence is such as possesses an inherent capacity or tendency to aid in establishing or disproving the fact in issue. An objection to evidence, as irrelevant, or as imma- terial, would, therefore, seem to be specific. Whether these tentative deductions will prove to be supported by actual adjudications, is next to be ascertained. SECTION II. CASES, ADJUDICATING ON OBJECTIONS. The decisions, now to be cited, passing on ob- orderof jections, taken to evidence, which in- citation volved the use of one or more of the three of cases. worc j s under examination, will be referred to, in an order of succession dependent on the number of those words which were used by the objector, or were discussed by the court; begin- ning with decisions in which only one of the words was concerned. Incompetent, etc. In an action brought to re- incompetent, cover damages for injuries suffered by a passenger, through defendant's negligence in starting a train with a sudden jerk, while plain- tiff was alighting from a train, a witness for plain- tiff, who had been sitting with the latter in the smoking-car, when a dispute occurred there, about fare, between plaintiff and the conductor, was asked, on his direct examination, to repeat a con- versation which occurred after that dispute, and was had between witness and the conductor, hi 35 36 CASES, ADJUDICATING ON OBJECTIONS. another car into which witness had gone. To this, defendant objected, as " incompetent, inadmissible, and that anything the conductor said to witness in the car next to the smoking-car was not compe- tent." The objection was overruled, and the testi- mony received, which was to the effect that the conductor asked witness whether he was going to get off at Clyde (the station at which plaintiff afterwards alighted), and then said: "You want to be ready to get off. I will get even with those fel- lows." On defendant's appeal, the court reversed the admission of the evidence, observed that the serious question in the case was whether the decla- ration of the conductor was part of the res gestce, held, that it was not, and said: "The plaintiff insists that that ground of in- competency was not raised at the trial .... In this he is clearly mistaken. The objection was taken that the evidence was incompetent, and that raised then, and presents here, every ground of in- competency which could not have been obviated at the trial, had special attention been called to it. The fact that they" (the declarations) "were not a part of the res gestce, if that be true, was a reason why they should be held to be incompetent, and when one makes an objection which is based upon a right ground, the fact that he does not give every reason why his objection is well taken is of no im- portance, provided that the ground for the incom- petency could not have been obviated, and there- OBJECTION: IMMATERIAL. 37 fore it was not necessary that the reason why the incompetency existed should have been more par- ticularly stated, if, indeed, we can assume that that was not done, which, I think, cannot be fairly assumed from the record." l Remark. This decision, it is submitted, was an application of rule "(b)." The admission of the evidence, by the trial court, was erroneous because a declaration, not a part of the res gestce, was, in its essential nature, incompetent. " Incompetent " was, therefore, in reality, treated as a general ob- jection. But the closing words of the passage quoted from the Opinion probably render the ref- erence to the principle embodied in rule "(b)" obiter, indicating, as they do, that the objector's allusion to "the car next to the smoking-car" gave his objection a specific character, and that the specification was accurate, as pointing to the ap- plicability of the rule of res gestce. " Inadmissible " evidently went for nothing, as an attempt at specifi- cation. Immaterial. In an action on an accident pol- immateriai. icy, it appeared that, in an application- blank, which had been filled out by defendant's agent, a response, purporting to have been made by plaintiff, to one of the printed questions, was to the effect that the latter was, at the time, in the service of one W. The defendant, in its Answer i Taylor v. N. Y. C., etc., R. R. Co., 63 App. Div., 586, 588. 38 CASES, ADJUDICATING ON OBJECTIONS. to the Complaint, alleged that this statement was untrue; which, if substantiated by evidence, would have been a defence. On the trial, plaintiff was permitted to testify, over defendant's objection that the evidence was "immaterial," that he, plain- tiff, did not so state, to the agent who filled out the blank. On defendant's appeal, the Supreme Court, at General Term, sustained the admission of the evidence, saying: "It was competent to prove by parol the actual transaction between the insured and defendant's agent. The question was perhaps objectionable in form, but the defendant's objection went to the materiality of the evidence sought to be elicited, and it is now too late for him to insist that the question and answer were incompetent without further explanation by the plaintiff." 1 Remark. This decision clearly intimates that "immaterial" relates to substance, as distinguished from form, and applies the rule, that one who ob- jects to a fact being proved at all, and is overruled, cannot, on appeal, urge a defect in the mode of proof. It may perhaps be improper to attempt to draw any certain inference, as to whether the ap- pellate court considered the objection which was taken general or specific; unless it be a correct statement of doctrine, to say that an objection go- ing to the substance of evidence is always deemed specific. In such event, the decision was an ap- i Wilder v. Accident Assoc'n, 14 State Rep., 365, 367. OBJECTION: IMMATERIAL. 39 plication of rule "(d); v objector specified amiss, on the trial, and hence was remediless, on the ap- peal. Immaterial. In an action for negligence, the immaterial, plaintiff was allowed to testify, over de- fendant's objection to the evidence as " imma- terial/' why he was not positive who accompanied him on his return home, after the accident. On defendant's appeal, the N. Y. Common Pleas, at General Term, sustained the admission of the evi- dence, saying : "The objection was to the materiality of the evidence, but it appears that the testimony was elicited to explain plaintiff's statement, on cross- examination, that he could not identify the person accompanying him home, and, in that connection, it cannot be said to have been immaterial, and the objection to its materiality conceded the compe- tency of the evidence." Remark. It is supposed that this decision may be paraphrased thus: The evidence in question had a bearing on the issue, and defendant's con- tention to the contrary was properly overruled. No inference, as to the general, or the specific, char- acter of the objection appears to be deducible. The final clause of the quotation from the Opinion seems to be equivalent to saying, that, when one objects to evidence solely on the ground that it i James v. Ford, 30 State Rep., 667, 670. 40 CASES, ADJUDICATING ON OBJECTIONS. is foreign to the case, he admits that there is no other objection to its admission. Immaterial. In an action brought against the immaterial, sureties on the bond of an INSURANCE agent, to recover a balance of the amount of a DEFALCATION, defendants' Answer to the Complaint contained no effectual denial, but set up, as a de- fence, certain events, to be mentioned, which were alleged to have occurred before any default on the part of the agent. On the trial, defendants offered to prove that, after a part of the agent's misappro- priation of funds had occurred, they had notified plaintiff of their desire to withdraw from the bond, and that plaintiff, in order to induce them to re- main, had promised to take certain precautions, such as requiring the agent to account monthly, etc., which promise had not been kept; whereby the balance of indebtedness, for which the action was brought, had accrued. Plaintiff's objection to this evidence, as " immaterial," was sustained, and the evidence excluded. On defendants' appeal, the court reversed the exclusion, saying: "The offer involved a defence for the sureties, to some extent, and in some amount, unless certain technical criticisms justify its rejection. It is said, no such defence was pleaded. It was pleaded as occurring before any default, and if such objection had been made, an amendment of the Answer might justly have been allowed, asserting that it occurred OBJECTION: IMMATERIAL. 41 also after default. ... If the offer was very general, the objection to it was of the same char- acter, merely that it was immaterial, and as we can see in it the elements of a possible defence, we think it ought not to be construed too rigidly for the purpose of justifying its rejection." l Remark. Here, " immaterial" is expressly stated to be a general objection; and, on that basis, as the evidence was excluded on the trial, the decision would fall under rule "(a)." And it might have been expected that the trial court would have been sustained, since a ground, pointed out by the ap- pellate court, existed for the exclusion, namely : the proposed evidence was not within the pleadings. But the ruling below was not upheld, because the application of the principle embodied in rule "(a)" was considered, under the particular circumstances, to be too technical. The following view of the gist of this decision may be permissible: Notwith- standing the judicial remark, that the objection was general, the case really turned on the distinction, between objections to form and objections to sub- stance. Plaintiff's objection, that the evidence of- fered had no bearing on the issue, though correct as the Answer to the Complaint stood, would not have been good, if the trial court had allowed an amendment of the Answer; and this the Court might have done, if the objection had been ex- plicitly taken, that the evidence offered was not in support of the allegations of that pleading. i Emery ?'. Baltz, 94 N. Y., 408, 414. 42 CASES, ADJUDICATING ON OBJECTIONS. Incompetent and immaterial. On the trial of an incompetent ac tion brought to recover a balance and alleged to be due on a contract for immaterial. . building a house, it becoming apparent that plaintiffs would be unable to prove full per- formance of the contract, they were permitted, over defendant's objection that the same was " immaterial and incompetent," to give evidence tending to show a substantial performance, and a waiver as to what was left undone. At the close of the evidence, the trial court, on plaintiffs' mo- tion, permitted the pleadings to be conformed to the proof; which permission defendant, on his ap- peal, alleged as error, contending that such a motion cannot be granted where objection to the admission of evidence is promptly taken on the ground that it does not tend to support the allegations of the pleading. But the trial court was sustained, on the appeal, the court saying: "This is the rule correctly stated; but it does not assist the defendant for the reason that no objection was made by him, that the evidence was inadmissible upon the ground that it did not tend to support the allegations of the pleadings. There is no case that holds that the pleadings may not be conformed to the proof where the sole objection to the evidence is, that it is incompetent and im- material. . . . The objection interposed, as 'incompetent and immaterial/ is insufficient to raise the question." 1 i Charlton r. Rose, 24 App. Div., 485, 487. OBJECTION: INCOMPETENT AND IMMATERIAL. 43 Remark. Intimation, that "incompetent and immaterial" is a general objection. Incompetent and immaterial. "There are several incompetent exceptions to testimony, urged on be- and half of the appellant. The difficulty immaterial. with fa^ criticisms lies in the fact that the objections urged were not sufficiently specific. To illustrate: In one instance, a witness on behalf of the plaintiff was inquired of, concern- ing an offer which purported to be made by the - company, evidently in writing. The ob- jections tendered were that the proffered testimony was incompetent and immaterial. It was both competent and material. Had the objections stated that the instructions were in writing, and that the question involved a conclusion, they would have been available, and the trial judge would then have sustained the objections, and the vice in the ques- tion could have been eradicated." l Remark. Intimation, that "incompetent and immaterial" is a general objection. Application of rule "(b)." Incompetent and immaterial. A copy of a "pro- test," made by the master of a vessel, was Incompetent . . . and received in evidence, over an objection immaterial. ^ na ^ ft W as "immaterial and incompe- tent." The witness who produced the paper testi- 1 Asbestos Pulp Co. r. Gardner, 39 App. Div., 654. 44 CASES, ADJUDICATING ON OBJECTIONS. fied that he had searched for the original, and could not find it, and that the copy was correct. On ap- peal, the court sustained the admission, saying: "The first objection made by the plaintiffs was 'to the reading of the protest, as incompetent and immaterial.' It is now sought to sustain this ob- jection on the ground that the paper read was a copy and not the original. Such does not appear to have been the explicit objection at the circuit. We think that idea was not conveyed to the mind of the court. ... To make the alleged defect in the paper itself available on review, the atten- tion of the court and of the opponents should have been drawn with more exactness to the specific ground of objection now taken. Had this point, that this was but a copy, been plainly presented, it might have been, if indeed it was not, avoided by preliminary proof of loss or destruction of the original. By the objection, that the reading of the protest was incompetent, was, doubtless, un- derstood that, though, as a general rule, the dec- larations of a party made out of court may be proven against him, still a 'protest' was not such a declaration as came within that rule. But it was a proper mode of showing a declaration of the plaintiffs. ... It spoke of matters material to the pending issue, and it furnished a proper mode of establishing those matters against the plain- tiffs." ' i Atkins v. Elwell, 45 N. Y., 753, 756. OBJECTION: INCOMPETENT AND IMMATERIAL. 45 Remark. It is to be inferred, that " incompetent and immaterial" is a general objection. The case seems to be an application of rule "(b)." The evidence was not in its essential nature incom- petent; and the objection, urged on the appeal, that the paper was not the best evidence, might perhaps have been obviated if it had been taken at the trial. Finally, there is ground for consider- ing the entire ruling, as to evidence, obiter. Incompetent and immaterial. In an action upon incompetent contract, plaintiff offered evidence tend- and ing directly to contradict testimony which immaterial, jj ^ a witness for defendant, had given, "upon the vital issue in the case;" which was ad- mitted over defendant's objection thereto, as "im- material and incompetent." On defendant's ap- peal, the court sustained the admission of the evidence, saying: "We think that this was not only material, but also competent. . . . The acts and declara- tions of a witness, which are inconsistent with his testimony, may be given in evidence against him; this evidence was, therefore, competent, and the defendant was not entitled to have it excluded upon the grounds stated by him. The rule, that a party seeking to avail himself of an exception to the ad- mission of improper evidence on a trial must point out the particular ground of his objection, is a salutary one, and its application here is proper and 46 CASES, ADJUDICATING OX OBJECTIONS. just. If the objection had been taken, that H. had not been previously interrogated in regard to this transaction, it could easily have been obviated by calling him upon the stand, and thus laying the foundation for his contradiction. A party ought not to be allowed to remain silent and conceal the real objections which he may have to the ad- missibility of evidence, and then, after misleading his adversary by frivolous objections, for the first time reveal his complaint in the appellate court." Remark. Inference, that " incompetent and im- material" is a general objection, and, particularly, that it is bad where the real objection is, not to the substance of evidence, but that a necessary pre- liminary to its introduction has not been observed. " Incompetent " seems to have been considered too general, and " immaterial" inaccurate. Incompetent and immaterial. In an action for incompetent negligence, plaintiff's physician was called and as a witness in his behalf, and asked, on immaterial. y g Direct examination i " Assuming the man's age to be .... years, and judging from that, and from the whole history of his case, and what you have learned of it in all ways, would you say that it is your opinion that the trouble of the heart is likely to improve?" An objection to this evidence, as " immaterial and incompetent," was overruled, and the evidence was admitted. Mead v. Shea, 92 N. Y., 122, 127. OBJECTION: INCOMPETENT AND IMMATERIAL. 47 The admission was sustained on appeal, the court saying: "The objection does not specify the grounds for excluding the question, or in what respects the evidence called for by the question is improper, and it is, in effect, general in its nature. ... It may be conceded that it would suffice, if the ques- tion was altogether an improper one, or the evi- dence called for in its nature quite inadmissible. But we cannot say that. . . . . The objec- tionable feature in the question consisted in calling for an opinion based upon witness' knowledge de- rived from outside sources .... and the question allowed witness to state possible conse- quences, and such as were speculative and not reasonably certain. . . . Had the objection stated these grounds, counsel might have changed the form of his question." 1 Remark. Intimation, that " incompetent and immaterial" is a general objection. Application of rule "(b)." Incompetent, immaterial, etc. In an action against incompetent a Dan k, the chief controversy was, whether immaterial, interest was to be allowed on certain de- posits of money made in the bank by plaintiff's testator. Plaintiffs having given evi- dence tending to prove an agreement to pay in- terest, defendant gave counter-evidence tending to i Wallace v. Vacuum Oil Co., 128 N. Y., 579-581. 48 CASES, ADJUDICATING ON OBJECTIONS. show a subsequent arrangement dispensing with interest. In rebuttal, plaintiffs were permitted to prove, over defendant's objection that the evi- dence was " improper, incompetent and imma- terial," the value of the use of money in the vicinity; also that testator had money in other local banks, which paid interest, and that one of those banks had offered him a specified rate of interest, for any money he might have, to deposit. On the primary appeal, the Supreme Court, at General Term, sus- tained the admission of this evidence, saying: "It is relevant to put in evidence any circum- stance which tends to make the proposition at issue either more or less improbable. The authorities cited seem to uphold the doctrine, that evidence of circumstances which tend to make a proposition at issue between the parties improbable is admissible to aid the court in correctly determining such issue." * But, on the further appeal, the highest Court reversed the admission of the evidence, saying: "The testator's transactions with the other banks had no relation whatever with his transactions with the defendant. . . . While this evidence may be what is called moral evidence, more or less con- vincing, we are satisfied that it was illegal. . . . Evidence must legitimately tend to prove the issue between the parties. In 1 Greenl. Ev., 52, it is said: 'This rule excludes all evidence of collateral McLoghlin v. Nat. Mohawk Vail. Bank, 65 Hun, 342-348. OBJECTION: INCOMPETENT, IRRELEVANT, ETC. 49 facts, or those which are incapable of affording any reasonable presumption or inference as to the prin- cipal fact or matter in dispute.' . . . Such evidence is too remote, inconclusive and uncertain in its bearing; and .... many illustrations might be put, showing that facts which constitute moral evidence, quite convincing, may yet be ir- relevant, when tested by legal rules." Remark. The words " improper" and " incom- petent," used by the objector, seem to have played no part in the ultimate decision. On the other hand, " immaterial" appears to have been treated as equivalent to " irrelevant," and to have been held specific, and correct as a statement of the ground of objection. Hence, on the ultimate ap- peal, the objector stood successfully on an objec- tion taken at the trial. Application of rule "(d)." Incompetent, irrelevant and immaterial. In an ac- tion brought to recover for personal in- incompetent, . . . . . . . ,, , irrelevant juries, plaintiff s physician was called as ^d a witness in her behalf, and asked, on his ial ' direct examination: "In your opinion, is she likely to recover?" An objection to this, as "in- competent, irrelevant and immaterial," was over- ruled, and the evidence admitted. On defendant's appeal, the Supreme Court, at the Appellate Term, sustained the admission, and, in response to a con- tention of objector, that the evidence called for 1 Same case, on ultimate appeal, 139 N. Y., 514, 522. 4 50 CASES, ADJUDICATING ON OBJECTIONS. was "improperly allowed because it was not based on personal observation, because its scope was not limited, and it did not appear that everything upon which it was based had been presented in evidence, and that it was speculative, conjectural and elimi- nated the element" (sic) "of reasonable certainty, and that it allowed an opinion based in part upon facts outside of the evidence," said: "None of these grounds of objection was taken at the trial, when, if it had been, it could have been obviated by other inquiry of the witness. . . . Such objection does not specify the grounds for excluding the question, or in what respects the evidence called for by the question is improper, and it is, in effect, general in its character. " * Remark. Inference, that adding "irrelevant" to "incompetent and immaterial" does not give the objection a specific character. Incompetent, irrelevant and immaterial. In an action brought by an attorney, to recover ^irrZTanr ^ OT professional services rendered, a paper and offered by the plaintiff was admitted, over immaterial, defendant's objection that it was "in- competent, irrelevant and immaterial," On de- fendant's appeal, the Supreme Court, at the Ap- pellate Term, sustained the admission saying: "This objection did not raise the question, now i Brown v. Third Av. R. R. Co., Vacuum Oil Co., 128 N. Y., su- 19 Misc., 504; citing Wallace v. pro. OBJECTION: INCOMPETENT, IRRELEVANT, ETC. 51 argued, that it was not duly executed, not a bind- ing or valid agreement, and that defendant was not a party to it." l Remark. Inference, that "incompetent, irrel- evant and immaterial" is a general objection. Incompetent, irrelevant and immaterial. A copy of the record of a court, other than the Incompetent, . irrelevant court in which the trial was in progress, 411(1 was received in evidence, over an objec- tion that it was " incompetent, irrelevant and immaterial." On appeal, the admission of the evidence was sustained, the court saying that the objection was insufficient to raise the question whether the clerk's certificate, attached to the paper, complied with statutory requirements. 2 Remark. Inference, that " incompetent, irrele- vant and immaterial" is a general objection, and particularly, that it is bad as a statement of the basis of opposition to evidence, based on the ground of form. Incompetent, irrelevant and immaterial. In an action brought against the directors of a Incompetent, . /! /-i irrelevant corporation, based on a failure to file its and annual report, to recover the amount of a immaterial. * i 111* promissory note, made payable to plain- tiff's order and indorsed by the corporation, which 1 MacKinstry v. Smith, 16 Misc., 2 Huber v. Ehlera, 76 App. Div., 351, 354; citing Wallace v. Vacuum 602, 605. Oil Co., 128 N. Y., supra. 52 CASES, ADJUDICATING ON OBJECTIONS. note was given in settlement of a contract between plaintiff and the maker of the note, for work to be done by the former for the latter, it appeared, on the trial, that this contract had been turned over by the maker of the note, one of the parties to the contract, to the corporation; and it became proper for the plaintiff to show that the corporation had entered into an engagement to relieve the maker of the note from liability to make payments accru- ing under the contract. The maker of the note was called as a witness for plaintiff, and was asked, on his direct examination: "Did the company agree to relieve you from the payments which you were to make?" To this defendants objected, as "im- material, irrelevant and incompetent because it is not the best evidence." The objection was sus- tained, and the evidence excluded. On plaintiff's appeal, the court declined to reverse the exclusion, saying: "This was objected to as immaterial, irrelevant and incompetent because it is not the best evi- dence. There was no evidence that the agreement was in writing. The proper objection to the ques- tion was that it called for a conclusion as to the nature of the agreement. As the error in this rul- ing was at best technical, the plaintiff is not in a position to urge his exception. The information sought for was relevant under a proper form of question." * i Witherow v. Slayback, 158 N. Y., 649, 662. OBJECTION: INCOMPETENT, IRRELEVANT, ETC. 53 Remark. The feature of this decision, which first attracts notice, is that the ruling of the trial court, excluding the evidence, was held to be erroneous, and yet that ruling was upheld, because the error was technical. The only possible reason why the exclusion of the evidence was error, is that the ob- jection was sufficient. There is a clear intimation that so much of the objection as referred to "the best evidence" was bad. Hence "immaterial/' or "irrelevant," or both of those words, must have been deemed sufficient. Those words do not seem to have been distinguished, in the decision; and the gist of the intimation, on the subject of the quality of the objection, is believed to be, that "irrelevant" was specific and (technically) accu- rate the evidence was irrelevant, but would have been "relevant under a proper form of question." Inasmuch, however, as plaintiff secured a new trial on other grounds, these remarks, about evidence and the objection thereto, were, doubtless, obiter. Incompetent, irrelevant and immaterial. In an action brought by an employee of a con- incompetent, irrelevant tractor, against his master, to recover for and injuries suffered in falling from a scaffold, immaterial. .. i j M> ji i a witness tor plaintiff, after evidence given, tending to qualify him as an expert, was asked, on his direct examination: (1) whether a scaffold, de- scribed in the question, was a safe and suitable one for a man of a specified weight; (2) what the cus- 54 CASES, ADJUDICATING ON OBJECTIONS. torn was, in New York, with regard to building scaffolds for men to work upon; and (3) what the custom was as to the building of scaffolds, in New York, by contractors, for carpenters to work upon. Each time, the defendant objected to the evidence, as "incompetent, irrelevant and immaterial;" and the objection was sustained, and the evidence ex- cluded. On plaintiff's appeal, the court reversed the exclusion, saying: "That the trial court erred in rejecting much of this evidence, there can be no doubt. It was not objected to or rejected because of the incom- petency of the witnesses. If that had been the objection, it would have been a fair matter for the trial judge to determine, whether the witnesses had the requisite knowledge or qualifications to give an opinion, or state facts as experts, and would not be a subject for review, unless against the evidence, or without support hi the facts appearing in the case. But the rules determining the subjects upon which experts may testify are questions of law. The latter is the character of the rulings in this case, as the only objection was that the evidence was incompetent, irrelevant and immaterial, and it was rejected upon that ground. Obviously, the evidence offered was competent, relevant and ma- terial." 1 Remark. Inference, that " incompetent, irrel- evant and immaterial" is not a good objection to i Jenks v. Thompson, 179 N. Y., 20, 24. OBJECTION: INCOMPETENT, IRRELEVANT, ETC. 55 the competency of a witness, to give testimony. The last sentence, quoted from the Opinion, is not, it is supposed, to be taken as implying that "com- petent," "relevant" and "material" have, each, a separate and distinct meaning, and that the evi- dence in question was possessed of each of the qualities expressed by these adjectives, but merely as asserting that the evidence was wholly unob- jectionable. Hence no objection could have pre- vailed, and no inference can be drawn from this decision, as to whether "incompetent, irrelevant and immaterial" is a general or a specific objection. Incompetent, irrelevant and immaterial. "To ob- ject to the introduction of evidence, be- Incompetent, . . . irrelevant cause irrelevant, incompetent and im- and material, presents no question for review immaterial. i i j_i j -j. f on appeal, unless the evidence on its face appears to be incompetent." a Remark. This quotation from an Opinion of a court of Indiana is almost identical with rule "(b)," for the Report of the case shows that this objection was overruled at the trial, and the ex- ception held bad, on appeal. The closing reference, to evidence on its face appearing to be incompe- tent, is supposed to be equivalent to a reference to "evidence in its essential nature incompetent," i. e., that which is manifestly and incurably inad- missible. i McCloskey v. Davis, 8 Ind. App., 190, 197. 56 CASES, ADJUDICATING ON OBJECTIONS. Incompetent, irrelevant and immaterial. " Objec- tions to evidence, that it is irrelevant, in- Incompeteiit, . . irrelevant competent and immaterial, are generally and too general, indefinite and uncertain to immaterial. . . . , i . , , < , present any question in this court. Remark. The Report of this case shows that the trial court admitted evidence over the objec- tion indicated, and this ruling was held, on appeal, not to be erroneous, the evidence being proper for a particular purpose, mentioned. Application of rule"(b)." Incompetent, irrelevant and immaterial. In an ac- tion brought, by the vendors against the Incompetent, ' * irrelevant vendee and his guarantor, to recover a and balance of the stipulated price of goods sold and delivered, the defence was de- fect in quality, and failure to deliver in proper packages. On the trial, one of the plaintiffs, called as a witness in plaintiffs' behalf, was asked, on his direct examination, whether the vendee assigned any reason for not paying the full amount, and, if so, what reason. The other plaintiff, in like manner, was asked whether, at any time after the contract was made, and the goods were delivered, any offer was made, on the part of defendants or either of them, to return the goods, or any part thereof. An objection to this evidence, as " irrel- evant, incompetent and immaterial," made on the 1 Voss v. State, 9 Ind. App., 294. OBJECTION: INCOMPETENT, IRRELEVANT, ETC. 57 part of the defendants, was overruled, and the evidence admitted. On defendants' appeal, the Supreme Court sustained the admission saying: "The objections were general, against their ad- missibility for any purpose whatever. It is clear enough that, had the vendee been the sole defend- ant in the action, the evidence objected to would have been admissible as against him. If, as to his co-defendant, a different rule would obtain, by reason of the latter being a guarantor only, a ques- tion not necessary to consider, the objection should have been limited accordingly, or an instruction asked." 1 Remark. Inference, that " incompetent, irrele- vant and immaterial" is a general objection, and of no more efficiency than " inadmissible," or "im- proper." Incompetent, irrelevant and immaterial. In an action brought by a physician, to recover Incompetent, / i !_ 1_ At irrelevant for professional services, in which the and Answer of defendant denied that plain- tiff was duly qualified, registered and au- thorized to practice medicine in the county, after proof that plaintiff was a regular physician, de- fendant offered in evidence a volume purporting to be a register of physicians, to substantiate her denial. To this plaintiff objected, as "incompe- tent, irrelevant and immaterial;" whereupon the i Voorman v. Voight, 46 Gal., 392, 397. 58 CASES, ADJUDICATING ON OBJECTIONS. evidence was excluded. On defendant's appeal, this ruling was reversed, the court saying: "The exclusion of the record was error. The objection was that it was incompetent, immaterial and irrelevant. No specific ground for the objec- tion was given. The record was offered as, and stated to be, a public register of physicians and surgeons of Kings County, and this was not ques- tioned. If the plaintiff had desired to raise a ques- tion as to its being a public record, his objection should have been specific, and the defendant then would have been called upon to prove the authen- ticity of the volume by showing the source of its production, and that it was kept by authority. No such objection having been made, we must as- sume it to have been waived." l Remark. "Incompetent, irrelevant and imma- terial" is a general objection. The decision is an application of a corollary of rule "(a)." The rul- ing of the trial court, excluding the evidence upon a mere general objection, was not upheld, on ap- peal, because no "ground in fact existed for the exclusion." Incompetent, irrelevant, immaterial, etc. In an action to recover commissions for effect- incompetent, . irrelevant, ing a sale of chattels, the purchaser hav- i, j n g been called as a witness for defendant, and testified that plaintiff was not the i Acetta v. Zupa, 54 App. Div., 33, 34. OBJECTION: INCOMPETENT, IRRELEVANT, ETC. 59 procuring cause of the sale, a witness for plaintiff was allowed to testify to a statement made by the purchaser, out of court, inconsistent with his testi- mony, over defendant's objection to the evidence, as "incompetent, irrelevant and immaterial, and that it was not in the presence of defendant." On defendant's appeal, the General Term of the New York Common Pleas sustained the admission of the evidence, saying: "The objection was made upon the general grounds of incompetency, irrelevancy and im- materiality, the specific ground stated being that it was not in the presence of defendant. This latter ground presented no proper objection, and the general grounds advanced did not call for the exclusion of the evidence. It was properly ad- mitted for the purpose of contradiction, and the technical objection of incompetency, etc., cannot be considered as raising the question of its proper foundation where such objection could have been obviated by proof upon the trial." l Remark. Inference, that "incompetent, irrele- vant and immaterial" is a general objection. The condemnation of this portion of the objection was an application of rule "(b)"; and that of the re- mainder of the objection, an application of rule "(d)." i Frankel v. Wolf, 7 Misc., 190, 192. 60 CASES, ADJUDICATING ON OBJECTIONS. Incompetent. Irrelevant. Immaterial. "It may incompetent m man y cases suffice to object to evidence irrelevant, as irrelevant, because the irrelevancy of immaterial. fa e evidence is- self -apparent, but it is in no case a sufficient specification, to say that the evidence is incompetent, because the reason for the claim of incompetency can always be fully stated. The general terms of objection, immaterial and impertinent, are mere epithets, and, in their ap- plication to evidence, have no legal meaning." 1 Remark. Inferences, that (1) "incompetent" is general, (2) "irrelevant" is specific, and (3) "im- material" is unmeaning. Incompetent. Irrelevant and immaterial. "It is not enough to state that the evidence is Incompetent; irrelevant incompetent, or that it is immaterial and and irrelevant. This much is implied in the immaterial. / < i , -r, mere fact of objecting. . . . It is no answer to the proposition asserted by the author- ities" (i. e., that objections, to be of any avail, must be reasonably specific), "to say that the evi- dence itself may reveal the objection, for this may be said of all incompetent and irrelevant evidence, when carefully scrutinized." Remark. Inference, that "incompetent," uttered alone, equally with "immaterial and irrelevant," is a general objection. 1 Glenville v. St. Louis R. Co., 51 2 Ohio, etc., R. Co. v. Walker, Mo. App., 629, 631. 113 Ind., 196, 200. OBJECTION: IRRELEVANT, IMMATERIAL, ETC. 61 Irrelevant, immaterial, etc. In an action for an irrelevant accounting as to partnership transactions, immaterial, brought by the personal representative of a deceased partner, plaintiff offered in evidence certain letters written by her testator, and letters written by testator's attorney, to de- fendant, asking for information concerning the assets and liabilities of the firm, and containing propositions with a view to an adjustment and a settlement; to most of which letters there had been no reply. The letters were received in evidence, over defendant's objection that they were " irrel- evant, immaterial and declarations in plaintiff's own favor." On defendant's appeal, the court sus- tained the admission of the evidence, saying: "Some of these letters to which no reply was made may be subject to the objection that they contain declarations in favor of the plaintiff; but it is to be borne in mind that this is an equity suit, in which a reversal should not be had for an error in the admission of evidence unless it was manifestly prejudicial. The plaintiff had a right to show that he endeavored to adjust the matter before bringing the action, as this would have a material bearing upon the question of costs. We are of opinion that, although the reception of some of the letters, without limiting their bearing, may have been erroneous, it does not constitute substantial error or require a reversal." l 1 Jackson ?;. Jackson, 100 App. Div., 385, 388. 62 CASES, ADJUDICATING ON OBJECTIONS. Remark. Here, apparently, " irrelevant" and "immaterial" went for nothing. The rest of the objection was specific and accurate; and the de- cision sustaining the admission of evidence over a good objection is valuable as an illustration of the rule that, in equitable actions, less strictness is observed, in condemning the admission of objec- tionable evidence, than in those tried with a jury. No ground of objection stated. In an action NO ground brought to recover damages for injuries of objection suffered by plaintiff, through falling in stated. fa e gt ree t O f a c ity, in consequence of de- fendant's negligence, physicians, called for plain- tiff, were permitted to testify as to the cause of plaintiff's ill-health, defendant opposing the in- troduction of the evidence by using the words " ob- jected to." On defendant's appeal, the court sus- tained the admission of the evidence, saying: " These objections were general, and failed to specify any grounds. This court has held, that, where the objection to evidence is general, and it is overruled, and the evidence is received, the rul- ing will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent. . . . But the questions addressed to the physicians, calling for their opinions as to whether the physical condi- tion in which they found the plaintiff to be, upon OBJECTION: GROUND NOT STATED. 63 their examination of her, could have resulted from a fall, were not objectionable and infringed upon no rules of evidence." J Remark. Application of rule "(b)." No ground of objection stated. "In no instance NO round was ^^ e g roun d of objection to evidence of objection offered stated, which omission renders stated. ^e exception valueless for purposes of re- view, the evidence admitted being intrinsically competent." 2 Remark. This passage from an Opinion has been quoted because of its use of the expression "evi- dence intrinsically competent," which is supposed to be equivalent to "evidence not in its essential nature incompetent." No ground of objection stated. In an action to NO ground recover damages for injury suffered at a of objection railroad crossing, two physicians, called stated. ag w itnesses for plaintiff, were asked, on their direct examinations, to testify as to future consequences of the injury. Fourteen times de- fendant's counsel interposed the words, "objected to," and, in each instance, the evidence was re- ceived. On defendant's appeal, the court re- versed a judgment for plaintiff, on the ground of error in the admission of the evidence; and plain- tiff's motion for a re-argument, based on the alleged 1 Turner v. City of Newburgh, 2 Adams v. Burr, 13 Misc., 247, 109 N. Y., 301, 308. 249. 64 CASES, ADJUDICATING ON OBJECTIONS. insufficiency of the objections, was denied, the court saying: "In deciding upon the appeal in this case, it did not escape our attention that the objections to the admission of the evidence, which we held to be incompetent, were general. That point was dis- cussed in consultation, but we consider that the evidence was in its nature inadmissible, as it re- lated to speculative and conjectural possible future consequences which might be apprehended from the injury, and how long after the injury such con- sequences might be developed. The course of the examination shows that the ground of the objec- tions could not have been misunderstood, and if it had been specified in the objections, could not have been obviated." l Remark. Application of rule "(b)." The pas- sage quoted is valuable as indicating, with satis- factory clearness, that the words, "in its essential nature incompetent," in that rule, are the equiva- lent of the words, "in its nature inadmissible;" whence an inference that incompetency, predicated of evidence, without qualification, is nothing more nor less than inadmissibility. No ground of objection stated. In an action for NO ground ^el, plaintiff, testifying in his own behalf, of objection was allowed to give evidence tending to stated. snow the amount of damage caused to his i Tozer v. N. Y. C. & H. R. R. R. Co., 105 N. Y., 617, 659. OBJECTION: WRONG SPECIFICATION. 65 business, over objections, by defendant, which are stated, in the record, thus: " Defendant's counsel objects." On defendant's appeal, the admission of the evidence was sustained, the court saying: "The objections of the defendant's counsel, to the questions put, were general in their character, and stated no specific ground upon which the testi- mony should be excluded. The counsel for the appellant claims that the proof of special damages was not admissible under the pleadings because it was not properly pleaded. Had this point been" taken on the trial, and the objection held to be valid, the judge had the power to allow an amend- ment of the pleadings upon such terms as would be proper and just, and, had he done so, the ob- jection might have been obviated. The rule is well established, that, where there is a general ob- jection to evidence, and it is overruled, and the evidence is received, the ruling will not be held erroneous, unless there be some grounds which could not have been obviated, or unless the evi- dence in its essential nature be incompetent." a Remark. Follows Tooley v. Bacon, supra. 2 Ap- plies rule "(b)." Wrong specification. In an action brought to recover on a policy of marine insurance, wng j n which an issue was raised as to the specification. value of the vessel concerned, an expert i Bergmann v. Jones, 94 N. Y., 2 70 N. Y. 34. 51, 58. 5 66 CASES, ADJUDICATING ON OBJECTIONS. witness was called, for plaintiff, and permitted, on his direct examination, to testify as to the value, over defendant's objection "that the witness had no personal knowledge of the vessel." On de- fendant's appeal, the admission of the evidence was sustained, the court saying: "It was not a sufficient objection to the com- petency of this witness, that he had no personal knowledge of the ship. An expert is qualified to give evidence as to things which he has never seen. He may base an opinion upon facts proved by other witnesses, or upon facts assumed and embraced within the case. . . . There was no objection that the witness did not have sufficient facts be- fore him, upon which to base his opinion as to the value of the ship. The sole objection was, that he did not have personal knowledge of the vessel. It seems to have been assumed that the character, condition and quality of the vessel were sufficiently proved, and that all the conditions existed, which would qualify the witness to give an opinion as to value, except that of personal knowledge ; and that, as we have seen, was not necessary. If the de- fendant had requested that the facts appearing in the evidence should be assumed, and stated in a hypothetical question, it is fair to assume that his request would have been complied with." 1 Remark. Application of rule "(d)." i Slocovich v. Orient Mut. Ins. Co., 108 N. Y., 56, 64. OBJECTION: IMMATERIAL, IRRELEVANT, ETC. 67 Immaterial. Irrelevant. In an equitable action, immaterial, brought to set aside transfers of personal irrelevant, property, the court, on appeal, referred to certain evidence admitted on the trial as follows : "It may be, that some of this testimony was im- material upon the issue, but the bulk of it was not only material and relevant, but important as bear- ing upon the issue litigated. So far as it was im- material or irrelevant to the issue, it did not work harm to the defendants. . . .. There is noth- ing, therefore, in the rulings upon the admissibility of evidence upon the trial which calls for reversal of the judgment." ' Remark. Possible inference, that "material" and "relevant," also "immaterial" and "irrele- vant," as applied to evidence, are, severally, sub- stantial synonyms. Also, a reminder that, in equitable actions, an inference of prejudice from the allowance of immaterial evidence is not readily indulged. Immaterial. Irrelevant. Incompetent. In an ac- immateriai. ^loii brought by a business corporation, irrelevant, successor to a brewing firm, a family af- t- fair, against the personal representatives of a deceased member of the firm and of the family, to recover moneys alleged to have been received by said decedent, for the account of the firm, and not accounted for, and moneys alleged to have been i Fox v. Erbe, 100 App. Div., 343, 348. 68 CASES, ADJUDICATING ON OBJECTIONS. obtained by him, from the firm, by false repre-, sentations (one of the two defendants having died pendente lite, and before trial), the Answer to the Complaint contained, besides a general denial, al- legations purporting to be by way of defence, which, however, were not germane to the real issue, but related to transactions between F., an attorney, and the surviving defendant, individually, and to acts of the plaintiff corporation in paying salaries to its officers. As tending to sustain those irrele- vant allegations of the Answer, defendant was per- mitted to introduce evidence of an agreement be- tween F. and said surviving defendant, who was a stockholder, under which the former purchased, for $150,000, the stock and bonds of the latter, of the par value of $550,000; also evidence to the ef- fect that F., who had been elected president of the corporation, received a salary of $15,000, a year, afterwards increased to $25,000, and that his brother-in-law received $5,200, a year, as vice- president, etc. To this evidence plaintiff objected, as " immaterial." The trial court overruled the objection, saying: "It may have no bearing at all, but I think it proper to allow it in the case for what it may hereafter be worth." A verdict and a judg- ment having been rendered in favor of defendant, the Appellate Division, on defendant's appeal, sus- tained the admission of the evidence because the objections to the improper evidence were regarded as insufficient, saying: OBJECTION: IMMATERIAL, IRRELEVANT, ETC. 69 "The basis of the objection was, that it was im- material to any issue presented by the pleadings. The plaintiff, however, nowhere claimed, upon the trial, that it was prejudiced by the introduction of such testimony. Its sole complaint was that it was immaterial as bearing upon any issue. Upon this appeal, it is argued, that it was not only im- material, but incompetent, improper and preju- dicial. It was the duty of counsel to call the court's attention to the ground of objection. Had the court's attention been called thereto, doubtless it would have excluded it, or it might have been withdrawn. The question as now sought to be presented was not raised. When the objection was made that the testimony was immaterial, it was conceded to be competent." Remark. A noticeable feature of this Opinion is, the intimation that, where counsel objects to evi- dence as " immaterial," and is overruled, and after- wards urges, on appeal, that the evidence was "in- competent, improper and prejudicial," he makes a new contention, i. e., one which he did not bring to the attention of the court below. It might have been supposed that a presumption of prejudice arises from the allowance of immaterial evidence over an objection to it, taken on the ground of its immateriality; and it is difficult to see how urging incompetency and impropriety involved a change of base. i Groh's Sons v. Groh, 80 App. Div., 85, 94. 70 CASES, ADJUDICATING ON OBJECTIONS. On the further appeal, the highest Court re- versed the admission of the evidence, declaring the objection taken on the trial sufficient, and saying: "The judgment was affirmed because the objec- tions to the improper evidence were regarded as insufficient. We entertain a different view. When evidence is immaterial, and is objected to on that specific ground, the objection is well taken, because it points out the precise ground upon which the evidence should be excluded, and that is all the objector is required to do. It frequently happens that evidence which is immaterial is also incom- petent and irrelevant, and in that event it may properly be objected to on all or either of these grounds. It is equally true, that evidence may be incompetent but neither immaterial nor irrelevant, or vice-versa, hi which case the objection may and should be urged upon the precise ground that pro- vokes it. And the reason of the rule is plain. If evidence is admissible upon one ground, and is ob- jected to upon another ground, the trial court is not advised of the true reason for its rejection, and the objector is held to have waived it. In the case at bar, some of the evidence objected to was im- material, irrelevant and incompetent. It might have been objected to on all or each of these grounds. It was objected to only as being im- material. It was, however, so utterly and clearly immaterial, as to point out clearly its incompe- OBJECTION: IMMATERIAL 71 tency as well as its irrelevancy. The objection having been taken upon a ground that was proper and precise, and being obviously suggestive of the other two grounds upon which the evidence might have been excluded, we think the cases cited by the learned Appellate Division in support of the con- clusion that the objections herein were not properly taken have no application." l Remark. The observations which will be made on this decision of the highest Court will be com- prised under two heads: First, as to what was held. It is necessary to assume a meaning of " material," and of " imma- terial." Accordingly, the latter term will be as- sumed to mean, as applied to evidence, that which has no bearing on the issue. Such an objection manifestly goes to the substance. Here, then, it is squarely held, that, when proposed evidence is " immaterial," an objection employing (only) that word is specific, and well taken. Does this decision imply, or even leave room for an inference that, if evidence that is material were objected to as " immaterial," the objection would not be specific? It is believed not. If evidence really material were objected to as immaterial, the objection would not be well taken, but its specific character would not be altered. An illustration will de- monstrate this. Suppose that evidence is objected to on the ground that it does not come within the i Id., 177 N. Y., 8, 14. 72 CASES, ADJUDICATING ON OBJECTIONS. pleadings, and a proper construction of the plead- ings leads to the conclusion that the objector is mistaken. Obviously, the objection is specific, notwithstanding the error in the contention. A specific objection is one which points out the precise ground upon which it is contended that the evi- dence ought to be excluded. So that we have, at length, an explicit and authoritative decision that " immaterial," as an objection to the admis- sion of evidence, is always specific. Second, as to other intimations, to be gathered from this Opinion. The statement, that it fre- quently happens, that evidence which is imma- terial is also incompetent and irrelevant, properly implies that such is not invariably the case; i. e., there is evidence which is immaterial and yet can- not be said to be both incompetent and irrelevant. But whether this last proposition involves a doc- trine that there may be evidence which is imma- terial but not irrelevant, quceref Again, it is said, that evidence may be incompetent, but neither immaterial nor irrelevant, or vice-versa. It is diffi- cult to determine what the converse proposition, indicated in this alternative is. The most man- ageable interpretation of the entire expression is, that (1) evidence may be inadmissible, for some rea- son, which, nevertheless, is not essentially foreign to the issue, and (2) evidence may be essentially foreign to the issue, and yet not open to objection as violating any technical or formal rules affecting CONCLUSIONS, RELATIVE TO OBJECTIONS. 73 its admissibility. A condition of this interpreta- tion is a concession of the substantial identity of materiality and relevancy. It is further said: "some of the evidence objected to was so utterly and clearly immaterial as to point out clearly its incompetency as well as its irrelevancy." This would appear to imply that, if the immateriality had not been so extreme and patent, neither its incompetency nor its irrelevancy might have been clearly pointed out; but whether this involves a doctrine, that immaterial evidence is ever relevant, is uncertain. The embarrassment experienced, in endeavoring to reach satisfactory conclusions as to the real import of these judicial intimations, is due the circumstance that the Opinion contains no definition of either of the words, incompetent, irrelevant and immaterial, and no unmistakable indications of the respective contents of those ad- jectives. Finally, in the assertion, that some of the evidence, of which it is said that it was im- material, irrelevant and incompetent, ''might have been objected to on all or each of these grounds," is contained a caution perhaps not imperative to counsel, not to use all three of the words, in ob- jecting, unless he means them all. It remains to gather the results of the foregoing conclusions examination of cases adjudicating upon relative to particular objections, and those of the objections. preliminary study, and attempt to express them in the form of practical conclusions upon the 74 CONCLUSIONS, RELATIVE TO OBJECTIONS. subject of the mode of objecting to evidence, in- cluding a question as to the propriety or advisa- bility of employing the formula, "incompetent, irrelevant and immaterial." CONCLUSIONS : The following propositions are submitted, as inferable from the weight of authority: 1. All possible objections to evidence, under our system, are divisible into two radicallv Two classes . . of distinguishable classes: viz.: First, those objections. wn ich assert an inherent lack, in the pro- posed evidence, of a legal bearing on the issue; Second, those which assert that the admission of the evidence would violate one or more of the numerous rules (some substantial, and some formal) which have been adopted, restricting admissibility on other than such logical grounds. 2. " Incompetent," as an objection to evidence, incompetent ^ s Droa clly general, means neither more a* an nor less than " inadmissible " or "im- objection. p r0 p er) anc j j s co-extensive with both of the aforementioned classes of objections; but con- tains no intimation as to which class it operates under, in any given case, and none as to which of the many possible items, if any, under the second class is intended. CONCLUSIONS, RELATIVE TO OBJECTIONS. 75 3. "Immaterial, as an objection, is identical with " irrelevant"; each belonging exclusively Immaterial . * or irrelevant, to the former of the two aforementioned * &n classes of objections. Each term, when employed in objecting to evidence, marks the objection as specific. 4. Where the real contention is, that proposed id. evidence has no bearing on the issue, " immaterial " (alone), or " irrelevant" (alone), is a good, and the only proper univerbal, objection: and to use both words would be simply tautologi- cal. 5. It is never of any avail to say " incompetent," "incompe- ^ objecting; to do so is merely equiva- tenfis lent to saying: "I object." And this nugatory. Yiolda, whether " uicompetent " is used alone, or in connection with other descriptive terms, or with explanations. 6. Material (or relevant) evidence is that, be- tween which and the fact in issue, there Essence of materiality is a relation of cause and effect, or of or concomitance according to the course of relevancy. , . m i_ general experience, lo object to pro- posed evidence, as irrelevant (or immaterial), is to assert that no legally recognizable relation of cause and effect, or of concomitance, exists be- tween the evidentiary- and the issue-fact; or that too many intermediary causes and effects render the evidence "too remote"; or that the concomi- 76 CONCLUSIONS, RELATIVE TO OBJECTIONS. tance is too infrequent to justify a legal infer- ence. 7. The expression " incompetent, irrelevant and "incompe- immaterial" should not be uttered, as tent - stating an objection, both for the reason iatA above given (5), and because to use that immaterial" expression is to combine a general and a objectionable. gpecific objection. 8. Whenever there is no contention, that pro- posed evidence has no bearing on the issue, no one word (unless "hearsay" be an exception) is avail- able; but the objector should particularize the ex- elusory rule which he considers would be violated by the admission: in doing which there is no com- pulsion to employ technical language, and no dan- ger in being inartistic, diffuse or even repetitious in elaboration. 9. "Incompetent, irrelevant and immaterial" is id. neither a general nor a specific objection. It is a combination of the two kinds; and the cases seemingly to the effect that it is general, are ex- plainable as referring to attempts to indicate, by this phrase, a ground of objection coming within the second of the two classes suggested in proposi- tion "1," supra; "incompetent" properly covering both classes, and the two other attributives not being within the second class. 10. It is suggested: Never say "incompetent", Multifarious- for it is useless; never say "irrelevant and ne88 - immaterial", for it is repetitious. CONCLUSIONS, RELATIVE TO OBJECTIONS. 77 11. The objections most likely, when overruled, Most ^ ground a good exception, have no available stereotyped or technical form. The cri- objections. ^eiion o f availability is, that, in a manner however informal and diffuse, they indicate clearly the exclusory rule sought to be enforced. SECTION III. STRIKING OUT AND DISREGARDING EVIDENCE. Under this head, a reference will be made to General decisions which, at first sight, might be description cons id ere( ^ paradoxical, holding, as they of the _ . . ' contents of seem to do, that objectionable evidence this section, can be eliminated at the instance of a party who offered no opposition to its introduction when it was offered, though a ground of objection to such introduction was, at that time, discernible. The cases first to be cited will be such as appear to be hi accord with a familiar, general rule. In an action brought by an administrator, to Necessity recover for services rendered by the in- for objecting testate, to defendant, the latter was ex- where . ' ground is ammed without any objection, on the part apparent. o f plaintiff, as to matters involving per- sonal communications with the decedent. There- after, the referee struck out this testimony, on the ground that defendant was incompetent so to tes- tify, under a familiar statute. On defendant's ap- peal, the court reversed this action of the referee, saying: "Any and every objection which could be taken 78 MOTION TO STRIKE OUT EVIDENCE. 79 to his testifying, or to his testimony, was apparent on the face of the proceedings; and yet, at a sub- sequent hearing, the referee struck out the testi- mony, on the alleged ground that the defendant was incompetent to testify. This will not do. A party against whom a witness is called, and examined, cannot lie by, and speculate on the chances, first learn what the witness testifies, and then, when he finds the testimony unsatisfactory, object either to the competency of the witness or to the form or substance of the testimony. It is not the case, which sometimes occurs, where, on cross-examina- tion, or in a subsequent stage of the trial, the in- competency of evidence appears, though appar- ently competent when given, e. g., oral proof of an agreement, which on cross-examination appears to have been in writing." l Remark. This passage from an Opinion appears to lay down the rule that, where there is any ground of objection to evidence which is apparent when the evidence is offered, a party interested in ex- cluding it must object, then and there, at his peril. On the trial of an action brought against an indorser of a promissory note, the only Motion to . * ' strikeout material issue presented was, whether no- evidence not tice of presentment to the makers, for completed. 111 i i payment, had been properly served on the defendant. The statute, in force, made a no- i Quin v. Lloyd, 41 N. Y., 349, 354; Dec., 1869. 80 MOTION TO STRIKE OUT EVIDENCE. tary's certificate of the presentment, by him, for payment, and of protest for non-payment, pre- sumptive evidence of the facts stated therein, unless defendant (indorser) annexed to his plea an affidavit denying receipt of notice of non-payment. Defendant had served an affidavit of such denial on plaintiff's attorney, but had not annexed it to his Answer to the Complaint. Plaintiffs opened their case by offering a notary's certificate, stating that the note was presented to the maker, for payment (which was refused), and that thereupon he, the said notary, did protest the same; which certificate was received, over defendant's objection that his An- swer was an affidavit, within the meaning of the statute, and, if not, that an affidavit (which did not refer to the Answer) had been served, and issue had been joined, and noticed for trial by both parties. The notary having been afterwards called, as a witness for plaintiffs, and having testified that the presentment was made, not by him but by his clerk, defendant moved "to strike out of the evi- dence the said certificate, on the ground that the note in question was not presented by said notary, and the certificate was therefore false"; which mo- tion was denied. On defendant's appeal, the court sustained the denial of this motion, saying: "It is claimed .... that the sworn An- swer of the defendant was an affidavit within the meaning of the statute. This claim is not well founded. . . . The court did not, therefore, MOTION TO DISREGARD EVIDENCE. 81 err in receiving the certificate in evidence at the time it was offered. Afterward, it appeared that the notary did not in person present the note for payment, but that it was done by his clerk. Hence the certificate was void, and could with propriety have been stricken out upon the motion of the de- fendant. But where evidence has been properly received, I do not understand that the party against whom it has been introduced has the absolute right to have it stricken out when its effect has been destroyed by other evidence. His proper course is to protect himself against the effect by a proper charge from the court. In this case the defendant should have requested the court to charge the jury that the certificate was no evidence to be consid- ered by them upon the question of presentment of the note, and if this had been refused he would have had a good exception. But the certificate was entirely ignored in the charge to the jury. And, on the question of presentment, the court put the case to the jury upon the other evidence. Hence no error was committed in refusing to strike out the certificate upon the motion of the defendant." 1 Remark. This decision is supposed to state the doctrine that, where, on a trial by jury, evidence, properly received, is afterwards discovered to be illegal (1) the court has a discretion to grant or refuse a motion to strike it out, and (2) the party, against whom it is offered, in order to secure a i Gawtiy v. Doane, 51 N. Y., 84, 89; Sept., 1872. 6 82 NECESSITY OF TIMELY OBJECTION. good exception, must move for a direction, to the jury, to disregard it. To the unskilled mind it may be a difficult problem to distinguish between the effect of striking out evidence, and directing the jury to disregard it. Manifestly, the former expedient is the only one available in trials by the Court. The closing sentences in the quotation from the Opinion seem, however, to impress the statement of the general doctrine with the char- acter of an obiter dictum, as it was, apparently, deemed necessary or proper to point out the way in which the case was given to the jury, as a ground for sustaining the trial court's refusal to strike out the evidence. "A party may .... waive the objection to incompetent evidence by Timely . . . objection omitting to make any objection. . . . generally Usually the objection must be made when the incompetent evidence is offered. . . But if the objection be not made at the time, and the omission be shown to have been from mistake or inadvertence, the trial court may permit it to be made at any time before the close of the trial, by motion to strike out the incompetent evidence. . . . . When the objection is not made at the time the evidence is offered or given, it is in the discretion of the trial judge to permit it to be made at a later stage of the trial." 1 i Miller v. Montgomery, 78 N. Y., 282, 286; Sept., 1-879. STRIKING OUT, AND DISREGARDING EVIDENCE. 83 Remark. This quotation, it will be observed, makes no reference to a motion for a direction, to a jury, to disregard evidence, as distinguished from a motion to strike out; and the intimation is that the discretionary power of the court, to grant a motion to strike out, is properly exercised only where the omission to interpose a timely objection to the admission of the evidence arose from mis- take or inadvertence. In an action brought against defendant as Distinction indorser of a promissory note, dated between April 4th, 1870, for $2,000, made by B., '"aTd ' payable in thirty days, to the order of disregarding defendant, purporting to have been in- lce ' dorsed by him, and alleged to have been duly transferred to plaintiff, the defence was, that the indorsement was a forgery. On the trial, it appeared that B. had procured a prior note, dated March 28th, 1870, for the same amount, made by him, and having thereon defendant's name as in- dorser, to be discounted at a bank which had given to B. drafts for the amount; that, the note last mentioned falling due, B. offered to the bank the first mentioned note to be discounted in renewal of the due note, which the bank declined; that thereupon B. made a third note, for the same amount, dated April 4th, 1870, payable, in fifteen days, to the order of plaintiff, who indorsed the same; which last mentioned note the bank dis- 84 STRIKING OUT, AND DISREGARDING EVIDENCE. counted, B. turning over the note in suit to plain- tiff as security. This fifteen-day note was paid by plaintiff at maturity: whence the action. Plain- tiff was permitted to introduce the bank-drafts in evidence, over an objection by defendant's coun- sel, to the same, as " irrelevant, incompetent and immaterial, and on the ground that there is no proof that they went into Mr. King's hands." On defendant's appeal, the court sustained the ad- mission, holding that the evidence was competent as part of the res gestce, and also as laying the foundation for other evidence which might con- nect defendant with the transaction, and as show- ing that the note which formed the consideration of the alleged indorsement had a valid inception; also that the objection of lack of " proof that they went into" (defendant's) " hands" went to the order of proof simply, which was in the discretion of the Court. After the drafts were admitted, defendant moved "to strike out the drafts and all evidence in regard thereto," which motion the trial court denied. On the appeal, the Court of Appeals held that "this did not constitute a ground for a legal exception; that, the evidence having been properly received, it could be retained at the discretion of the court, and the remedy of the party was to ask the Court to instruct the jury to dis- regard it." ' Remark. This case has been given on account of i Marks v. King, 64 N. Y., 628, 629; Feb., 1876. STRIKING OUT, AND DISREGARDING EVIDENCE. 85 the pointed distinction made by it between a motion, in a jury cause, to strike out evidence, and a motion for instructions, to the jury, to disregard it. Some of the facts are incorrectly stated in the memorandum of the case; 1 a circumstance which renders the report unintelligible. In addition to this defect in the report, the head-note is incorrect, in including evidence admitted " without objection/' as that question was not presented. The quotation of that head-note, in the Opinions in subsequent cases, as a statement of what was decided, has tended to create confusion in the law. The printed head-note reads as follows: " Evidence admitted upon a trial by jury, either without an objection or properly under objection, which for any rea- son should not be considered by the jury, is not necessarily to be stricken out on motion, but may be retained in the dis- cretion of the court; the remedy of the party is to ask for instructions to the jury that they disregard it." 2 In an action on an indictment for assault, the district attorney offered certain promis- Motion for i i i * instruction, sorv notes and a book of accounts in evi- to jury, to dence, and, no objection being made, they tvideTIe were received and read. The complain- when the ant and other witnesses were then called, omy remedy. an( j gaye testimony tending to show that the notes were forgeries, and entries from the book were also read for the same purpose. 1 Id. 2 The italics are not in the origi- nal. 86 STRIKING OUT, AND DISREGARDING EVIDENCE. Afterwards defendant's counsel moved that the court direct the jury to disregard all the evidence tending to establish the forgery of the notes; which motion was denied. On appeal, the denial of this motion was affirmed, the court saying: "The notes and book were offered and received in evidence without objection from the defendant's counsel. The evidence of the complainant, to the effect that the notes were forgeries, .... had been given without objection, and the witness had been cross-examined in regard thereto. . . . After such acquiescence .... it is too late to ask that the objectionable matter be stricken out. If any objection to it could fairly be made, it was as apparent when the evidence was offered as after it was in, and by not objecting to it when offered, the defendant took the risk of having the court, hi its discretion, refuse to exclude it. In Marks v. King, 64 N. Y., 628, it was held that evidence admitted upon a trial by jury, either without an objection, or properly under objection, which for any reason should not be considered by the jury, is not necessarily to be stricken out on motion, but may be retained in the discretion of the court. And it was also held that the remedy of the party is to ask for instructions to the jury to disregard it. This decision was followed in Platner v. Platner, 78 N. Y., 90, and the question now before us is directly within both cases. The attention of the trial court was not again called MOTION TO STRIKE OUT EVIDENCE. 87 to the subject, nor was any request made for in- structions in regard to it." l Remark. The tenor of this Opinion seems to imply that, in a case tried with a jury, a motion for instructions to the jury to disregard evidence, under the circumstances referred to, is the only remedy of a party who seeks to avoid the effect of evidence which has been admitted. In an action on a promissory note, made by The same, defendants, payable to plaintiff or bearer, one of the defendants, being called as a witness on the part of defendants, was asked, on his direct examination, to state a conversation about the note, had between witness and plaintiff's husband, since deceased; whereupon the following colloquy occurred, as shown by the Case on Appeal: Plaintiff's counsel: " Objected to, as hearsay, irrelevant and improper, and on the grounds that it is not shown that Stephen Platner" (plaintiff's deceased husband) "had any authority to act for the plaintiff, and also is a violation of Section 399." The Court: "I will hear the proof, and if the necessary proof of his authority isn't made out, I will take care of it." At the close of the evidence on this subject, plaintiff moved to strike out the testimony as to this conversation; which motion was denied. On 1 Pontius v. People, 82 N. Y., are not in the original. See p. 85,. 339, 346; Oct., 1880. The italics supra. 88 MOTION TO DISREGARD EVIDENCE. plaintiff's appeal, the Court of Appeals upheld the trial court, in this denial, saying: "The testimony was allowed on the notion that knowledge and acquiescence would be brought home to the plaintiff. It may be conceded that this was not done. It may be conceded, also, that, when the motion to strike out was made, the de- fendants had made an end of their evidence as to the .... note. The motion to strike out was then made. It was not renewed, nor the mat- ter again noticed. It should have been. 'Evi- dence admitted either without objection, or prop- erly on objection, which for any reason should not be considered by the jury, or affect the result, is not necessarily stricken out, but may be retained in the discretion of the court, the remedy of the party being to ask for instructions to the jury to disre- gard it.' There was no request to instruct the jury to disregard the evidence, and no exception to the charge of the judge in respect to it, and the weight to be given to it. See Opinion of ALLEN, J., in Marks v. King, 64 N. Y., 628." > Remark. Here it is squarely held that, in a jury cause, a motion to strike out evidence is not avail- able as a substitute for a motion for instructions, to the jury, to disregard it. The quotation, in the Opinion, of the erroneous head-note of Marks v. King did no harm, as, in both cases, there was an objection taken to the evidence, when offered. i Platner v. Plainer, 78 N. Y., 90, 101. STRIKING OUT INCOMPETENT EVIDENCE. 89 "It is entirely clear that a party who has sat speculative bv > during the reception of incompetent silence evidence without properly objecting there- condemned. to> and hag tnug taken nig c h ance of ad- vantage to be derived therefrom, has not, when he finds such evidence prejudicial, a legal right to require the same to be stricken out. But even if the referee or surrogate could, in their discretion, strike out any of the testimony, no request was made that either should do so." a Remark. This dictum clearly condemns the prac- tice of speculative silence, where evidence is offered, and refers exclusively to a motion to strike out ; this being the only possible motion, as there was no jury. In an action brought by an Illinois corporation, to recover an unpaid subscription to Motion to . . strikeout stock, the only substantial question was uncompleted as ^ o plaintiff's existence as a corpora- tion. To prove this, plaintiff offered cer- tain papers from the office of the Secretary of State, of Illinois, but there was no proof that, by the law of Illinois, these papers established plain- tiff's corporate character. To this evidence de- fendant made specific and elaborate objections, which were overruled. On defendant's appeal from a judgment which was rendered in plaintiff's favor, the Court refused to reverse, saying: "The documents from the office of the Secretary 1 Matter of Accounting of Morgan, 104 N. Y., 74, 86; Jan'y, 1887. 90 SPECULATIVE SILENCE. of State of Illinois were received in evidence against the defendant's objection and exception. In order to give them proper effect, they should have been supplemented by proof of the law of that State, but they were competent as part of the chain of proof on the issue. When the plaintiff failed to follow them up by proof of the law which gave them efficacy, a motion to strike out was the de- fendant's remedy, and no such motion was made. When evidence tending to prove a material fact in issue is received under objection, and which re- quires proof of other facts to make it complete, which have not been supplied, its presence in the record is no ground for reversal, in the absence of a motion subsequently to strike it out. The fail- ure of the plaintiff, to supplement the documentary evidence with proof of the law, should have been raised by such a motion, as the ruling admitting the papers was correct when made." l Remark. Decision, that when certain links, only, in the chain of proper proof are admitted, at the instance of a party, his opponent's only remedy, for a failure to complete the proof, is a motion to strike out. "It will not do to take a general objection which is not good, or speculate upon what a witness may testify to, and then, if not agreeable to the one against whom the U. S. Vinegar Co. v. Schlegel, 143 N. Y., 537, 544; Nov., 1894. STRIKING OUT, AND DISREGARDING EVIDENCE. 91 testimony is given, move to strike out such testi- mony, or, upon appeal, seek to destroy the effect thereof, by presenting specific objections which would have been good had they been presented at the time the testimony was given." 1 Remark. Condemnation of speculative silence, or generality of objection, when evidence is offered. No reference to motion for instructions, to jury, to disregard. "In most cases, an abstract consideration of the Motion to several evidential facts would not suffice "ndtor' ^ snow their relevancy or materiality to instruction the alleged ultimate fact. Segregated, to disregard. the evidential facts rarely, if ever, appear to be relevant or material. Aggregated, their rel- evancy or materiality may be irrefragable. Logi- cally, therefore, no error is to be predicated by the admission of competent evidence, the irrelevancy or immateriality of which is not apparent at the time. If the rule were otherwise, it would be diffi- cult to conceive a case, where error could be avoided, except at the risk of a denial of redress. It was incumbent upon the plaintiff's counsel, therefore, when the prejudicial character of the testimony objected to was apparent, from the defendant's subsequent failure to connect the plaintiff with the facts in evidence therefrom, to ask the trial court to strike such testimony out, and 2 to instruct the 1 Jewel. Mer. Agency v. Jewel Pub. 2 Italics, not in the original. Co., 84 Hun, 12, 19; Jan'y, 1895. 92 AVOIDING IRRELEVANT EVIDENCE. jury to disregard it. An exception to an adverse ruling upon such a request, and not otherwise, would have enabled us to consider the effect of the admission of such testimony"; citing U. S. Vinegar Co. v. Schlegel, supra. 1 Remark. Apparent intimation that, under the circumstances referred to, the party, seeking to avoid the effect of evidence admitted, should move, both to strike out, and for an instruction, to the jury, to disregard. Thus far, the cases cited in this section have not contained any explicit statement of doctrine, that a party can safely sit silent when evidence is of- fered by his adversary, and afterwards, by suitable motion, avoid its effect, as a matter of right. It remains to ascertain whether such a doctrine is contained in any cases, and if it be, how those cases are to be reconciled with the principles hereto- fore enunciated. In an action brought by a passenger, to recover irrelevant damages for having been ejected from evidence defendant's train, it appeared, on the without trial, that plaintiff purchased, at Buffalo, objection, a ticket good, by its terms, for a con- tinuous passage from that city to Albany, and then for a like passage, from the latter place to New York; that, on his journey eastward, he left the i Pohalski v. Ertheiler, 18 Misc., 33, 35. AVOIDING IRRELEVANT EVIDENCE. 93 train at Utica, where, on his leaving the sleeping- car, its conductor, as plaintiff testified, tore off the N. Y. Central coupon, and returned to him the stub and the H. R. R. coupon, though that con- ductor testified that he found the former coupon in plaintiff's berth, after the train had left Utica; that, next day, plaintiff took a train eastward, and, being unable to produce the Central coupon, was ejected at St. Johnsville, afterwards, however, pay- ing the fare to Albany, under protest, and, return- big to the train, before leaving St. Johnsville, pro- ceeded to Albany; that there plaintiff met the conductor of the sleeping-car, who stated that he had found the Central coupon, whereupon the con- ductor of the Utica train refunded the fare from Utica to Albany, after doing which, he addressed plaintiff in slanderous language. These remarks of the conductor were given in evidence by plaintiff, without objection from defendant; but defendant's counsel subsequently requested the court to charge the jury that (if they believed plaintiff's testimony hi regard thereto) the company was not liable therefor. This request was refused. On defen- dant's appeal, the Court of Appeals sustained de- fendant's exception to this refusal, saying: "The fact that the statement referred to in the request was made without objection by the de- fendant did not render the refusal proper. It is said with plausibility by MULLEN, J.," (below) "that the evidence 'was conceded by both parties 94 AVOIDING IRRELEVANT EVIDENCE. to be competent, as evidenced by the one by offer- ing, by the other by not objecting to it. To in- struct a jury that such evidence is not to be taken into consideration is to exclude it from the case. This the court had no right to do/ The remark is specious and unsound. It does not follow that the omission to object to testimony is a concession that it is competent. Counsel may deem certain evidence offered entirely irrelevant and imma- terial, and therefore harmless, and for that reason raise no objection to its introduction, and thus avoid an exception, assuming, as the learned judge, after making the remark above quoted, immedi- ately added, that fr being in, it was the duty of the court and jury to give it whatever effect it ought to have in the case.' On the application of that principle, to the evidence referred to, the learned judge was asked to instruct the jury that it ought to have no effect whatever. This it was his duty to do, if the testimony was irrelevant, and such as could legally have no influence whatever on their verdict." The Opinion then refutes the proposi- tion that the evidence was competent as part of the res gestce; the remarks made by the conductor, at Albany, having been made several hours after the ejection at St. Johnsville, and being said not to be within the scope of the conductor's authority. 1 Remark. This decision holds clearly that, in a jury cause, where evidence manifestly irrelevant, i Hamilton v. N. Y. C. R. R.Co., 51 N. Y., 100, 106; Sept., 1872. HAMILTON CASE, AS A PRECEDENT. 95 i. e., such as " ought to have no effect whatever" on the case, is offered, the opposing party can safely sit silent, and afterwards move, as a matter of right, for a direction to the jury to disregard it. The Hamilton case has been cited, followed and, apparently, extended beyond its original scope, in later decisions. In an action brought by a passenger to recover for injuries suffered by reason of the sud- Hamilton ... case den starting of an omnibus, operated by followed, defendants, while she was alighting there- from, plaintiff, being asked, on her direct examina- tion, to state if she recollected whether the driver made any remark to her at the time when she en- tered the vehicle, responded, without any objec- tion by defendants, not only that she did so recol- lect, but that he swore at her, for not hurrying, and started before she had fully entered, causing her to fall to the floor. Afterwards, plaintiff's coun- sel, evidently apprehending that the anticipated verdict might be imperilled by this (irrelevant) testimony, moved to strike it out, and for an in- struction, to the jury, to disregard it; which motion was granted, against defendants' objection and exception. On defendants' appeal from a judg- ment in plaintiff's favor, the General Term of the N. Y. Superior Court affirmed the judgment, re- fusing to sustain defendants' exception, and say- ing: 96 HAMILTON CASE, AS A PRECEDENT. "Defendants' counsel not only permitted this irrelevant matter to be given in evidence, when it would have been quite easy to stop the witness in her narration of it, but to remain in the case. It was, therefore, fully competent for the court, at a later stage, on motion of plaintiff's counsel, and against the objection and exception of defendants' counsel, who claimed that the moral effect of the testimony could not be removed in that way, to strike out the said testimony, and to instruct the jury to disregard it. Indeed, the instruction to disregard it was the only relief to which the defen- dants would have been entitled, had they seen fit to make the motion"; citing Gawtry v. Doane, supra, and Hamilton v. N. Y. C. R. R. Co., supra. 1 Remark. This case is singular, in the circum- stance that defendants tried to secure a reversal of the action of the trial court in granting plaintiff's motion to strike out, and direct a disregard of, irrelevant evidence introduced by plaintiff. The decision is cited here, as recognizing the authority of the Hamilton case. In an action brought to recover the amount of id. two policies of insurance issued by de- fendant on the life of plaintiff's husband, evidence was given by plaintiff, without objection, of decla- rations made by defendant's general agent, tending to show the existence of an agreement whereby de- Roberts v. Johnson, 37 N. Y. Superior, 157, 160; Feb., 1874. HAMILTON CASE, AS A PRECEDENT. 97 fendant waived a lapse of the policies caused by failure to pay premiums. After all the evidence was taken, defendant moved for a non-suit on the ground, among others, that it was not proved that the conditions of the policy, as to payment of premiums, had been waived; which motion was denied. On defendant's appeal, the General Term said: " Those declarations were not competent evidence of the existence of an agreement, made six weeks before the time when they were made, against the defendant, the principal of the agent making them. And the omission to object to them when they were offered did not deprive the defendant of the right to insist upon their incompetency at the close of the evidence, or any other time during the progress of the trial. This was substantially held in the case of Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100. But the objection actually taken did not present this point for the decision of the court. It simply presented the objection that the agent was not authorized to waive or extend the time of payment of the premium. Whether the proof, given to show that an agreement had been made, for the extension, was competent proof for that purpose, was not mentioned nor suggested." * Remark. This Opinion contains an obiter dictum; recognizing the doctrine of the Hamilton case the possibility of avoiding the effect of evidence, i Dean v. ^Etna Life Ins. Co., 2 Hun, 358, 368. 98 HAMILTON CASE, AS A PRECEDENT. after omitting to object to its introduction ex- tending it from irrelevant evidence, to any which is "in its essential nature incompetent." Irrelevant evidence is, it is submitted, a class of evidence, in its essential nature incompetent (inadmissible). In a special proceeding instituted to procure the M. revocation of probate of a will, a witness for contestant testified to declarations of decedent tending to impeach the will. The Surrogate re- fused to revoke probate, saying, in his Opinion: "Very little of the testimony given by this wit- ness was competent. The court would have been bound, under the rules of evidence, to exclude the bulk of it, if objection had been made, as it ought to have been made, to its admission. For in view of the fact that the mental capacity of the decedent, though technically put in issue by the pleadings, was not practically questioned at the trial, and that, aside from her declarations, there was really no proof of the fact of undue influence, those dec- larations, tending to impeach the integrity of her will, and to ascribe its contents to the improper interference of her children, were not admissible in evidence for any purpose. They were proved, however, without objection, and will accordingly be considered by the court, although they might, per- haps, be safely disregarded in view of the decision in Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 106." ' i Shaw v. Shaw, 1 Dem., 21, 24; June, 1882. HAMILTON CASE, AS A PRECEDENT. 99 Remark. This case contains a guarded dictum, to the effect that the Hamilton case may be ex- tended to a case of evidence essentially incompe- tent, though not distinctly irrelevant. In an action brought to recover damages for injuries sustained by plaintiff, through the fall of an elevator, by reason of the breaking of a chain, in a building owned by defendants, on an allegation of their negligence, in which the court directed a verdict for defendants, plaintiff proved, without objection, that B., the head-engineer, who had charge of ^all the machinery and elevators in the building, addressing D., who was manager of the building, but had nothing to do with the construc- tion or management of the elevator, had said: "Now, D., I knew that chain from the first day was not strong enough for the car;" also that B. had said: "that is the chain I had been repeatedly at Mr. D., about being too light for its work." On plaintiff's appeal, the General Term of the N. Y. Superior Court reversed the judgment rendered in favor of the defendants, on the ground that plain- tiff was entitled to go to the jury on certain ques- tions mentioned. But one of the prevailing Opin- ions contains the following expressions: "Although this testimony was received without objection, yet I am of the opinion that it was not evidence of the fact that B. had given the defen- dants or their superintendent notice of the fact that 100 HAMILTON CASE, AS A PRECEDENT. the chain was too light for its work. Neither was it admissible as part of the res gestce. And the omission to object to this testimony was not a con- cession that it was competent. 'Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100. . . . Notice to D. was not notice to defendants." a Remark. Follows, in an obiter dictum, the Ham- ilton case. In an action brought to recover a balance al- M. leged to be due upon a competitive con- tract, for goods to be sold and delivered, in which the defense was that the contract was awarded to plaintiff, not the lowest bidder, by collusion be- tween him and officers of defendant, after defen- dant had given evidence sufficient to justify a ver- dict in its favor, plaintiff put in evidence, without objection, a certificate of audit made by the clerk of the board of apportionment, and an award signed by two members of the board, though the law al- lowed an award to be made only by the concurrent vote of all the members of the board. The trial court charged the jury to give no weight or impor- tance to the award or audit ; to which charge plain- tiff excepted. On plaintiff's appeal from a judg- ment rendered in favor of defendant, the General Term of the Supreme Court sustained the charge, holding that the award was illegal, and the certifi- i Delaney v. Hilton, 50 N. Y. Superior, 341, 344; June, 1883. HAMILTON CASE, AS A PRECEDENT. 101 cate "was not evidence in the case," and, further, saying: "The court was right in the charge which was given to the jury, directing them to give no weight or importance to the award or audit, which were read in evidence. For where improper evidence is received during the progress of a trial, even with- out objection as this was, it is still the duty of the court, in the submission of the case to the jury, to direct them to disregard it. Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100." l Remark. This decision extends the benefit of the Hamilton-case doctrine to evidence, which was not objectionable on the specific ground of irrele- vancy, and to a party who sought no relief from its effect. In an action brought by a passenger against a carrier, a street railroad company, to re- Hamilton , . . . case cover damages for personal injuries result- m g from defendant's negligence in start- ing its car before plaintiff had reached a seat, thereby, as alleged, permanently maiming her, the Complaint set forth that the defendant "wrong- fully and negligently started said car;" and the evidence, on the part of plaintiff, which was ad- mitted without objection, was sufficient to warrant the jury in finding that, while plaintiff was in the act of gaining a place of safety in the car, the latter i Neilson v. Mayor, etc., of N. Y., 1 Silv., Supreme Ct., 471, 484. 102 HAMILTON CASE, AS A PRECEDENT. was "suddenly started with a violent jerk." De- fendant requested the court to charge the jury, that "so far as the consideration of negligence . . . . is concerned, the question of the violent jerk is of no importance." This request was re- fused; and, on defendant's appeal, the refusal was sustained, the court saying: "The theory of the defendant is, that this con- stituted error because the Complaint did not allege, in words, that the defendant started its car with a violent jerk. . . . The pleadings fairly ap- prised the defendant of the nature of the plaintiff's claim for damages; .... and evidence that the car was started with a jerk, while yet the plain- tiff was in a position where she was exposed to the danger of being thrown down was material to the issue. The rule is supported by authority, that a party who has sat by, during the reception of in- competent evidence without properly objecting thereto, and has thus taken his chance of advan- tage to be derived therefrom, has not, when he finds such evidence prejudicial, a legal right to require the same to be stricken out (Matter of Morgan, 104 N. Y., 74, 86) ; nor has he a right to be relieved from its effect where such evidence is material (2 Rums. Prac., 2d ed., 351, 352, citing Quin v. Lloyd, 41 N. Y., 349). The defendant made no effort to exclude any of the evidence as to the violent jerk of the car; on cross-examination, the evidence was rather emphasized in response to de- HAMILTON CASE EXPOUNDED. 103 fendant's questions, and we are clearly of opinion that the court did not err in refusing to charge de- fendant's request. Of course, where the evidence admitted is irrelevant, the party calling attention to it is entitled to an instruction that it should be disregarded by the jury (Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100, 107). But the rule is dif- ferent where the evidence is material to the issue, though it might be incompetent if objected to, as we have already pointed out." 1 Remark. This very recent decision contains a most valuable exposition of the Hamilton case, and shows how far, and in what manner, the latter is to be reconciled with the general duty to object to obJBctionable evidence when it is offered. It is supposed that the true rule, at least in the State of New York, as indicated by this Opinion, is as fol- lows: In general, the only available time to start opposition to evidence is when it is offered ; there is an exception as to evidence purely irrelevant (i. e., immaterial), and not otherwise without the pale. As to such evidence, which, by definition, ought to have no effect whatever on the case, it appears that, on a jury trial, counsel can safely, if he choose so to do, insist on maintaining a strict logical position, i. e., allow it to be introduced without opposition, and afterwards secure, as matter of right, an in- struction, to the jury, to give it its logical effect no effect whatever; though why he should omit to Plum v. Met. St. R.Co., 91 App. Div., 420, 422. 104 CONCLUSIONS AS TO AVOIDING EVIDENCE. exercise the power to object to irrelevancy at the outset, may not be considered plain. The tendency, exhibited by some of the cases, to extend this doc- trine to improper evidence, generally, is believed not to be warranted by the Hamilton precedent, and to be unintelligible, as tending to subvert the entire body of practice rules, relative to taking ob- jections to the introduction of evidence. The re- sult of the foregoing examination, therefore, is as follows : CONCLUSIONS : In non-jury causes: The only possible method of seeking to avoid the effect of evidence, once admitted, is a motion to strike out. The granting or denial of such a motion being in the discretion of the trial court, the safer, as, evidently, also, the fairer, course is to object to the admission. In jury causes: It is difficult rationally to distinguish the plight of evidence, which the jury are instructed to dis- regard, from that of evidence which is stricken out. One feels an almost irresistible impulse to accord assent to the assertion of MULLEN, J. (quoted in 51 N. Y., 106), that "to instruct a jury, that" (such) "evidence is not to be taken into considera- tion, is to exclude it from the case." But the line of demarcation between a motion to strike out, and one for an instruction to disre- CONCLUSIONS AS TO AVOIDING EVIDENCE. 105 gard, is finally established ; and all that can be said is, that the distinction exhibits one of those pro- found depths of the law, at which the lay-mind gazes with surprise, or aghast, while the profes- sional succumbs to the fiat of authority. No ar- gument, in favor of making both motions, in any one case, is apparent. It is submitted, as the true rule, that a legal right to the granting of a motion for instructions, to a jury, to disregard evidence which has been admitted without objection, exists only in the case of irrelevant, which is the same as immaterial, evidence. SECTION IV. MOTIONS TO DIRECT, AND TO SET ASIDE, VERDICTS. In Linkhauf v. Lombard, 1 it was said: "The rule should be regarded as settled, under all the authorities, as well by the decisions of the Courts of this State as by those of England, that, where there is no evidence upon an issue before the jury, or the weight of the evidence is so decidedly preponderating in favor of one side, that a verdict contrary to it would be set aside, it is the duty of the trial judge to nonsuit, or to direct a verdict, as the case may require." The decision in this case reversed a judgment for plaintiff entered on a verdict, for error of the trial court in refusing to dismiss the complaint, or, subsequently, to direct a verdict for the defen- dants. In Hemmens v. Nelson, 2 it was said: "The most that can possibly be said is, that there was a scintilla of evidence on the question of malice which, under the doctrine of some older cases, was sufficient to carry the question to the 137 N. Y., 417, 426; 1893. 2 133 jj. Y., 517, 529; 1893. 106 MOTION TO DIRECT, ETC., VERDICT. 107 jury. But this court is now firmly committed to the more modern and reasonable rule, that, where there is no evidence upon an issue before the jury or the weight of evidence is so decidedly prepon- derating in favor of one side, that a verdict con- trary to it would be set aside, it is the duty of the trial judge to nonsuit, or to direct a verdict, as the case may require." The decision in this case affirmed a judgment for defendant entered upon a verdict directed by the court. In Cohn v. Mayer Brewing Co., 1 it was said: " Where the weight of evidence is so decidedly preponderating in favor of one party that a verdict contrary to that preponderance would be set aside on motion, a trial judge should nonsuit, or direct a verdict, as the case may require." The decision in this case affirmed a judgment entered upon a dismissal of the complaint by di- rection of the trial court, the Opinion citing the Linkhauf and Hemmens decisions (supra), and others. In McDonald v. Met. St. R'y Co., 2 it was said: "It is undoubtedly true that, where there is a conflict of evidence, the court may properly sub- mit the case to the jury if it sees fit, even though the testimony may decidedly preponderate on one 138 App. Div., 5, 6; 1899. 2 46 App. Div., 143, 146, 147; 1899. 108 MOTION TO DIRECT, ETC., VERDICT. side or the other, so that a verdict would be set aside as against the weight of the evidence, but it is equally true that the court will not be required to take such action although it is advisable to send the case to the jury, except where there is a great preponderance of testimony. But if the court does not see fit to take that course, and has itself disposed of the case, the question then to be de- termined is, whether, upon the evidence, a verdict in favor of the person against whom the judgment has been rendered could be sustained. If not, the action of the court will be approved. This has been the undoubted rule in this State for many years. . . . . It is said, in the case of Linkhauf v. Lombard, that the rule was to be regarded as settled, as well by the decisions of the courts of this State as by the courts of England, that, where there is no evidence upon any issue before the jury, or the weight of evidence is so preponderating in favor of one side that a verdict contrary to it would be set aside, it is the duty of the trial justice to direct a nonsuit. What was said in that case was accepted in a subsequent decision of the court, 1 where the Opinion was delivered by the only jus- tice who dissented in the case of Linkhauf v. Lombard. In the absence of some decision of that Court, we do not think we should be at liberty to depart from the rule there laid down." The decision in this case affirmed a judgment 1 Hemmens v. Nelson. MOTION TO DIRECT, ETC., VERDICT. 109 for defendant entered upon a verdict rendered by direction of the trial court. In Fealey v. Bull, 1 the appeal was from a judg- ment affirming one in favor of plaintiff, entered on a verdict rendered on the third trial of the action. The Court of Appeals affirmed the judgment ap- pealed from, the point of the decision, as stated in the head-note, being that, where the Appellate Di- vision has reversed a judgment based upon a ver- dict held to be against the weight of evidence, and grants a new trial, and, on a subsequent trial, the evidence is substantially the same, the refusal of the trial court, to non-suit, presents no error re- viewable by the highest Court, where the evidence is sufficient to support a verdict either way. In its Opinion, the Court referred to the decisions of the Appellate Division in the Cohn and McDonald cases (supra}, and explained the Linkhauf and Hemmens cases (supra), as follows: "In Linkhauf v. Lombard, it is said that 'the rule should be regarded as settled, under all the authorities, as well by the decisions of the courts of this State as by those of England, that, where there is no evidence upon an issue before the jury, or the weight of the evidence is so decidedly preponder- ating in favor of one side, that a verdict contrary to it would be set aside, it is the duty of the trial judge to nonsuit, or to direct a verdict, as the case 1 163 N. Y., 397; 1900. 110 MOTION TO DIRECT, ETC., VERDICT. may require.' A statement substantially similar is to be found in Hemmens v. Nelson. Taken by themselves, these declarations apparently afford some justification for the rule asserted in the cases cited from the Appellate Division. But to excerpt a single sentence from a judicial opinion and con- strue and interpret it apart from the context of the Opinion in which it is found, and without regard to the subject-matter under discussion, is not only unreasonable, but at times leads to erroneous con- clusions." And the Opinion then proceeds to con- fine the effect of the Linkhauf and Hemmens de- cisions to the facts presented to the court, in those cases, respectively, and concludes that, "where the right to a verdict depends on the credibility to be accorded witnesses, and the testimony is not in- credible nor insufficient as a matter of law, the question of fact is for the jury to determine." The McDonald case (supra) reached the highest Court in 1901, and its Opinion therein is next re- ferred to. In McDonald v. Met. St. R'y Co., 1 the appeal from the judgment of the Appellate Division (su- pra) was allowed "upon the ground of an existing conflict in the decisions of different departments of the Appellate Division, as to when a verdict may be directed where there is an issue of fact, and because in this case an erroneous principle 1 167 N. Y., 66 (1901). MOTION TO DIRECT, ETC., VERDICT. Ill was asserted, which, if allowed to pass unconnected, would be likely to introduce confusion into the body of the law (p. 68)." The Court reversed the judgment below, holding that the trial court erred in directing a verdict, and finally settled the dis- tinction between the power of a trial court to direct, and to set aside, a verdict, saying: "The rule that a verdict may be directed when- ever the proof is such that a decision to the contrary might be set aside as against the weight of evidence would be both uncertain and delusive. There is no standard by which to determine when a verdict may be thus set aside. It depends upon the dis- cretion of the court. The result of setting aside a verdict, and the result of directing one, are widely different, and should not be controlled by the same conditions or circumstances. In one case there is a re-trial. In the other the judgment is final. One rests in discretion; the other upon legal right. One involves a mere matter of remedy or procedure. The other determines substantive and substantial rights. Such a rule would have no just principle upon which to rest. ... So long as a ques- tion of fact exists, it is for the jury and not for the court. If the evidence is insufficient, or if that which has been introduced is conclusively an- swered, so that, as a matter of law, no question of credibility or issue of fact remains, then the ques- tion being one of law, it is the duty of the Court to determine it." 112 MOTION TO DIRECT, ETC., VERDICT. The Opinion cites the decision of the Fealey case (supra), as disclosing that the reversal in the Link- hauf case was upon the ground that the proof amounted at most to a mere surmise, and that, in the Hemmens case, the principle, that, if there is any evidence upon a question of fact, it should be submitted to the jury, was asserted. Therefore, since 1901, it has been, and presum- ably will continue to be, true that a trial judge should not nonsuit, or direct a verdict, on the ground that the weight of evidence is so decidedly preponderating hi favor of one party that a verdict contrary to that preponderance would be set aside on motion; and that his power and duty, to give such a direction are confined to cases where "no question of fact exists." But, as stated in the Fealey Opinion, the hy- pothesis "that there is no evidence to go to a jury" does "not mean literally none, but that there is none that ought reasonably to satisfy a jury, that the fact sought to be proved is established." The doctrine of a "scintilla of evidence" is adverted to. A mere scintilla is not, now, sufficient to carry a case to the jury, and the judge, not the jury, is to say that the evidence has only the dimensions and vitality of a spark. That doctrine is explained as covering two classes of cases: one, where "the proof has been a mere matter of inference"; and the other, cases of direct evidence, such as where the testimony of a witness is "in such contradiction of matters of MOTION TO DIRECT, ETC., VERDICT. 113 common knowledge, or the laws of nature, as to be incredible as a matter of law." 1 Meanwhile, the former rule continues, it appears, to prevail in the Federal Courts. In a recent case, in the Eighth Circuit, it was held, that a passenger in a street car, who, on account of sud- den illness, put her head through a window above a screen covering the lower half of the aperture, and was struck by a trolley pole, she being obliged to stand up, or kneel, on the seat, in order to assume the position mentioned, was guilty of contributory negligence, as matter of law. The Court said: "While the questions of neg- ligence and contributory negligence are ordinarily questions of fact, to be passed upon by a jury, yet if it clearly appears from the undisputed facts, judged in the light of that common knowl- edge and experience of which courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, or where the evidence is of such conclusive char- acter that the court would be compelled to set aside a verdict returned in opposition to it, 2 it may with- draw the case from the consideration of a jury. In North Penn. R. R. v. Commercial Bank, 3 the Supreme Court said: 'It would be an idle pro- ceeding to submit the evidence to the jury when i 163 N. Y., p. 402. 3 123 U. S., 727; 8 Sup. Ct. R., 2 The italics are not in the original. 226; 31 L. Ed., 287. 8 114 CONCLUSION, AS TO DIRECTING, ETC., VERDICT. they could justly find only in one way.' While the plaintiff's sudden illness placed her in a very uncomfortable and distressing position, yet that fact would not authorize her to disregard unmis- takable warnings of danger. She must have known that the heavy screens which barred the windows were placed there for no other purpose than to prevent passengers from extending their arms or heads out of the windows, as the meshes in the screen were too large to serve any other purpose. To disregard this plain warning was, we think, such contributory negligence upon her part as will necessarily preclude a recovery in this case." CONCLUSION : In conclusion : the practical rule is at length defi- nitely settled, in New York, that it is not within the province of the court to prevent a verdict because of the court's apprehension of the pre- ponderance of evidence, though it may set aside a verdict, and grant a new jury trial, upon con- siderations in that regard. But a reconciliation of the doctrine, that it is for the court to deter- mine that, though there is evidence, to go to the jury, there is none that ought reasonably to sat- Christensen v. Met. St. R'y, 137 U. S., 615; Nor. Pac. R'y v. Free- Fed. Rep., 708; U. S. C. C. A., man, 174 U. S., 379; N. W. R. R. April, 1905: citing R. R. Co. v. v. Davis, 53 Fed. Rep., 61; Mo. Pac. Husen, 95 U. S., 465; Schofield v. R'y v. Moseley, 57 Fed. Rep., 921. Chicago, M. & St. P. R. R., 114 CONCLUSION, AS TO DIRECTING, ETC., VERDICT. 115 isfy that body that the fact sought to be proved is established, instead of giving them a chance of a vote, with the unqualified insistence on a preser- vation of the sacred right of trial by jury inviolate forever is a problem that will remain inscruta- ble as long as the dictum de omni and the present constitution of the human mind shall survive. THE END. INDEX. PAOB ABBOTT, definition of evidentiary terms by, 24 ALLITERATIVE objection to evidence i, 76 ANDERSON, definition of evidentiary terms by, 24 ANGLICAN law of evidence, nature of, 4 ARISTOTLE, dictum of; its relation to judicial evidence 6 BENTHAM, definition of evidence by, 2 BEST, definition of evidence by, 2 BLACKSTONE, definition of evidence by, 3 BOUVIER, definition of evidentiary terms by, 25 BRADNER, definition of relevancy, by, 30 117 118 INDEX. PAGE BURRILL, definition of evidentiary terms by, 25 CASES, adjudicating on objections to evidence 35-73 CHAMBERLAYNE, definition of relevancy by, 29 CLASSES of objections to evidence; two in number 74 COMPETENT evidence, meaning of, 34 COSTS, evidence, as bearing on award of, 61 DECISIONS on particular objections to evidence 35-73 DEFINITIONS: competency of evidence 24, 30 competent (evidence) 23, 24, 25, 32 evidence 2, 3 immaterial (evidence) 25, 34, 75 incompetency of evidence 32, 33 incompetent (evidence) 24, 34, 74 irrelevant (evidence) 24, 25, 75 material (evidence) 23, 24, 25, 33, 75 materiality of evidence 33 objection to evidence 12 general 13 specific 13 relevancy of evidence 28, 29, 30, 31, 32 relevant (evidence) 23, 24, 25 INDEX. 119 PAGE DICTUM of Aristotle, universality of, 6 ENTHYMEME, employment of, in reasoning 10 ETYMOLOGY of certain evidentiary attributives 23 EVIDENCE, a word of relation 2 denned 2, 3 when deemed wanting 112 EVIDENTIARY fact is a minor premiss of syllogism 9 distinguished from "fact in issue" 12 EXCEPTION, what objections favorable to valid, 77 FACT in issue, and evidentiary fact; relation 12 FEDERAL COURT: definition of evidence by, 3 rule in, as to directing verdict 113 GENERAL objection defined 13 usually unadvisable 13 GREENLEAF, definition of competency by, 30 : evidence by, 3 120 INDEX. PAGE GROUND of objection; omission to state, 63 HAMILTON case, analysis of rule established by, 96, 101 HEARSAY evidence defined ,.. 6 as an explicit term of objection to evidence 76 IMMATERIAL evidence, distinguished from incompetent, 34 INADMISSIBILITY and incompetency of evidence, compared 17, 19 INCOMPETENT evidence, meaning of, 74 INSTRUCTION to jury, to disregard evidence 85, 88 IRRELEVANT evidence, synonymous with immaterial, 105 ISSUE, definition of, 11 etymology of, 11 JONES, definition of relevancy by, 29 JUDICIAL definitions of evidentiary terms 31 LOGIC, rules of; relation to evidentiary rules 7 INDEX. 121 PAGB MATERIAL, as applied to an objection; is it always specific. . . 7 evidence, meaning of, 23, 30 evidence, substantially synonymous with relevant, 75 MOTION for direction of verdict 106-115 for instructions to jury, to disregard evidence, rule governing, 104 to set aside verdict 106-115 to strike out evidence, in general discretionary . . 83 NONSUIT, when proper 107 OBJECTION to evidence denned 12 general, defined 13 effect of overruling, 16 sustaining, 16 generally hazardous 13 specific, defined 13 effect of overruling, 21 sustaining, 18 purposes of requiring, .... 13, 14 two grand classes of, 74 PLEA one of the common-law pleadings 11 PLEADINGS at common-law, enumeration of, 11 purpose of, 11 PROBABILITY of inference, effect of, on admissibility of evidence 9 122 INDEX. PAGE PROTEST, marine, status of, as evidence 43, 44 REBUTTER, one of the common-law pleadings 11 REJOINDER, one of the common-law pleadings 11 RELEVANCY, legal, and logical, compared 31 REPLICATION, one of the common-law pleadings 11 REYNOLDS, definition of relevancy by, 29 SCINTILLA of evidence, doctrine of, 106, 112 SORITES, employment of, in reasoning 10 SPECIFIC objection defined 13 SPECIFICATION of objection, effect of wrong, 65 SPECULATION on forthcoming evidence, condemned 90 STEPHEN, criticism by, of negative character of evidentiary rules 1 , 5 definition of relevancy by, 28 INDEX. 123 PAGE STRIKING OUT evidence, distinguished from instruction to dis- regard, 83 SURPRISE, prevention of, a purpose of requiring specific ob- jection 14 SURREBUTTER, one of the common-law pleadings 11 SURREJOINDER, one of the common-law pleadings 11 SYLLOGISM, logical, employment of, in forensic proof 7 TIMELY objection to evidence; whether indispensable.. .78, 92 UNITING motions to strike out, and for direction to disre- gard, evidence 91 VERDICT, motion to direct, 106 set aside, 106 WAIVER of objection to evidence 82 WHARTON, definition of relevancy by, 28 WIGMORE, definition of evidence by, 3 LAW LIBRARY UNIVERSITY OF r^ LOS ANGELES 000683430 3