\ UNIVERSITY OF CALIFORNIA LOS ANGELES / SCHOOL OF LAW LIBRARY A DIGEST of the Law of Evidence By SIR JAMES FITZ JAMES STEPHEN, K. C. S. I. WITH ADDITIONAL TEXT, NOTES AND IL- LUSTRATIONS APPLICABLE IN THE WESTERN STATES. and with DIGEST PARAGRAPHS FROM ALL IMPORTANT DE- CISIONS ON THE LAW OF EVIDENCE Arizona, Arkansas, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington and Wyoming. By GEORGE S. BERRY, M.A., LL.B- Denver, Colorado: The W. H. Courtright Publishing Company 1918 T Copyright, 1918, By The W. H. Courtright Publishing Company. PUBLISHER'S NOTE. Complying with the request of the Bench and Bar of the Western States, we secured the services of the well known Law Editor, George S. Berry, of the Denver Bar, to edit a new edition of this foundational treatise on the most important branch of American Law. After checking up the Decisions we found it impossible to carry out our original plan without extending the work into several volumes, therefore we decided to have the work prepared especially for the Western States of the Union, except in rare instances where there were few or no decisions from Western States. In order that the work would be serviceable for ready reference in the trial of cases; and to expedite the trac- ing of decisions in the office it was found necessary to incorporate a complete digest of the exact point decided. This gives to the busy practitioner all of the important decisions from his own and adjoining States, in addition to the recognized rules, with applications and illustrations. The text was all prepared by Mr. Berry, assisted by able Law Editors. Every line receiving the attention of Mr. Berry before being assigned to its place in the treatise. Over two years of Mr. Berry's exclusive time was devoted to the preparation of the text. Trusting that the work will lessen and lighten the labors of the profession, we hereby submit the within to your exacting consideration. THE PUBLISHER. Denver, January, 1918. TABLE OF CONTENTS. PART I. RELEVANCY. CHAPTER I. PRELIMINARY. Art. 1. Definition of Terms 1 CHAPTER II. OF FACTS IN ISSUE AND RELEVANCY TO THE ISSUE. Art. 2. Facts in issue and facts relevant to the issue may be proved 21 Art. 3. Relevancy of Facts forming part of the same transaction as Facts in issue 29 Art. 4. Acts of Conspirators 41 Art. f.. Title 51 Art. 6. Customs 54 Art. 7 .Motive, Preparation, Subsequent Conduct, Explanatory Statements, etc 57 Art. 8. Statements Accompanying Acts, Complaints, Statements in Presence of a Person 80 Art. 9. Facts necessary to explain or introduce Rele- vant Facts 102 CHAPTER III. OCCURRENCES SIMILAR TO BUT UN- CONNECTED WITH THE FACTS IN ISSUE, IR- RELEVANT EXCEPT IN CERTAIN CASES. Art. 10. Similar but unconnected Facts 115 Ait. 11. Acts Showing Intention, Good Faith, etc. ...137 Art. 12. Facts Showing System 147 Art. 13. Existence of Course of Business When Deemed to be Relevant 154 CHAPTER IV. HEARSAY IRRELEVANT EXCEPT IN CERTAIN CASES. Art. 14. Hearsay and the Contents of Documents Irrelevant 158 SECTION I. HEARSAY, WHEN RELEVANT. Art. 15. Admissions Defined 168 Art. 16. Who May Make Admissions on Behalf of Others, and when 178 Ait 17. Admissions by Agents and Persons Jointly Interested with Parties .190 Ait. ix. Admissions by Strangers 205 Art. 19. Admission by Person Referred to by Party.. 206 Art. 20. Admissions Made Without Prejudice 207 Art. 21. Confessions Defined 209 Art. 22. Confession Caused by Inducement, Threat, or Promise, When Irrelevant in Criminal Proceeding 218 Art. 23. Confessions Made Upon oath. Etc 228 Ait. l'l. Confession .Made Under a Promise of Secrecv.231 Art. 25. Statements by Deceased Persons. When Deemed to be Relevant 23;; Ait J»; Dying Declaration as to Cause of Death... 233 Art. 27. Declarations Made in the Course of Busi- ness or Professional Duty 245 Ait. -*. Declarations Against Interest 161 TABLE OF CONTENTS. Art. 29. Declarations by Testators as to Contents of Will 269 Art. 30. Declarations as to Public and General Rights 274 Art. 31. Declarations as to Pedigree 282 Art. 31a. Statement of Mental Condition 297 Art. 32. Evidence Given in Former Proceeding When Relevant 306 SECTION II. STATEMENTS IN BOOKS, DOCUMENTS AND RECORDS, WHEN RELEVANT. Art. 33. Recitals of Public Pacts in Statutes and Proclamations 317 Art. 34. Relevancy of Entry in Public Record Made in Performance of Duty 319 Art. 35. Relevancy of Statements in Works of His- tory, Maps, Charts and Plans 338 Art. 36. Entries in Bankers' Books 345 Art. 37. Bankers Not Compellable to Produce Their Books 346 Art. 38. Judge's Powers as to Bankers' Books 346 Art. 39. Judgment 347 Art. 40. All Judgments Conclusive Proof of Their Legal Effect 347 Art. 41. Judgments Conclusive as Between Parties and Privies of Facts Forming Ground of Judgment 352 Art. 42. Statements in Judgment Irrelevant as Be- tween Strangers, except in Admiralty Cases 366 Art. 43. Effect of Judgment Not Pleaded as an Es- toppel 368 Art. 44. Judgments Generally Deemed to be Irrele- vant as Between Strangers 371 Art. 45. Judgments Conclusive in Favor of Judge... 383 Art. 4 6. Fraud, Collusion, or Want of Jurisdiction May Be Proved 384 Art. 47. Foreign Judgments 390 CHAPTER V. OPINIONS, WHEN RELEVANT AND WHEN NOT. Art. 48. Opinion Generally Irrelevant 393 Art. 49. Opinions of Experts on Points of Science or Art 411 Art. 50. Facts Bearing Upon Opinions of Experts. .. 429 Art. 51. Opinion as to Handwriting, When Deemed to be Relevant 433 Art. 52. Comparison of Handwritings 435 Art. 53. Opinion as to Existence of Marriage, When Relevant 439 Art. 54. Grounds of Opinion, When Deemed to be Relevant 442 CHAPTER VI. CHARACTER, WHEN DEEMED TO BE RELEVANT AND WHEN NOT. Art. 55. Character Generally Irrelevant 446 Art. 56. Evidence of Character in Criminal Cases.. 452 Art. 57. Character as Affecting Damages 468 TABLE OF CONTENTS. xiii PART II. ON PROOF. CHAPTER VII. FACTS PROVED OTHERWISE THAN BY EVIDENCE— JUDICIAL NOTICE. Art. 58. Of What Pacts the Court Takes Judicial Notice 472 Art. 59. As to Proof of Such Facts 500 Art. 60. Evidence Need Not Be Given of Facts Ad- mitted 502 CHAPTER VIII. OF ORAL EVIDENCE. Art. 61. Proof of Facts By Oral Evidence 507 Art. 62. Oral Evidence Must Be Direct 507 CHAPTER IX. OF DOCUMENTARY EVIDENCE: — PRI- MARY AND SECONDARY, AND ATTESTED DOCUMENTS- Art. 63. Proof of Contents of Documents 533 Art. 64. Primary Evidence 541 Art. 65. Proof of Documents by Primary Evidence. .543 Art. 66. Proof of Execution of Document Required by Law to be Attested '. 544 Art. 67. Cases in Which Attesting Witness Need Not Be Called 550 Art. 68. Proof When Attesting Witness Denies the Execution 558 Art. 69. Proof of Document Not Required by Law to be Attested 559 Art. 70. Secondary Evidence 561 Art. 71. Cases in Which Secondary Evidence Relat- ing to Documents May be Given 562 Art. 72. Rules as to Notice to Produce 584 CHAPTER X. PROOF OF PUBLIC DOCUMENTS. Art. 73. Proof of Public Documents 591 Art. 74. Production of Document Itself 594 Art. 75. Examined Copies 597 Art. 76. General Federal or State Records 600 Art. 77. Exemplifications 602 Art. 78. Copies Equivalent to Exemplifications 604 Art. 79. Certified Copies 805 Art. 80. Judicial Records and Public Documents of Other States 616 Art. 81. Officially Printed Copies 621 Art. 82. Legislative Acts of States and Territories. .. 623 Art. 83. State Papers, Proclamations, Legislative Journals and Public Documents 623 Art. 84. Foreign Laws, Acts of State, and Judgments. 624 CHAPTER XI. PRESUMPTIONS AS TO DOCUMENTS. Art. 85. Presumption as to Date of Document 626 Art. 86. Presumption as to Stamp of a Document .... 628 Art. 87. Presumption as to Seal and Delivery of Deeds 628 Art. 88. Presumptions as to Documents Thirty Years Old 630 Ait. 89. Presumption as to Alterations 633 TABLE OF CONTENTS. CHAPTER XII. OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE, AND OF THE MODIFICATION AND INTERPRETATION OF DOCUMENTARY BY ORAL EVIDENCE. Art. 90. Evidence of Terms of Contracts, Grants, and Other Dispositions of Property Required to a Documentary Form 637 Art. 91. What Evidence May be Given for the Inter- pretation of Documents 672 Art. 92. Cases to Which Articles 90 and 91 Do Not Apply 692 PART III. PRODUCTION AND EFFECT OF EVIDENCE. CHAPTER XIII. BURDEN OF PROOF. Art. 93. He Who Affirms Must Prove 696 Art. 94. Presumption of Innocence 704 Art. 95. On Whom the General Burden of Proof Lies. 708 Art. 96. Burden of Proof as to Particular Fact 713 Art. 97. Burden of Proving Fact to be Proved to Make Evidence Admissible 716 Art. 97a. Burden of Proof When Parties Stand in a Fiduciary Relation 718 CHAPTER XIV. ON PRESUMPTIONS AND ESTOPPELS. Art. 98. Presumption of Legitimacy 721 Art. 99. Presumption of Death from Seven Years' Absence ■ 725 Art. 100. Presumption of Lost Grant 731 Art. 101. Presumption of Regularity and of Deeds to Complete Title 733 Art. 102. Estoppel by Conduct 738 Art. 103. Estoppel of Tenant and Licensee 756 Art. 104. Estoppel of Acceptor of Bill of Exchange. . 765 Art. 105. Estoppel of Bailee, Agent and Licensee. ... 766 CHAPTER XV. OF THE COMPETENCY OF WITNESSES. Art. 106. Who May Testify 773 Art. 107. What Witnesses are Incompetent 774 Art. 108. Competency in Criminal Cases 784 Art. 109. Competency of Husband and Wife 789 Art. 110. Communications During Marriage 795 Art. 111. Judges and Advocates Privileged as to Cer- tain Questions 799 Art. 112. Evidence as to Affairs of State 802 Art. 113. Information as to Commission of Offenses. 803 Art. 114. Competency of Jurors 805 Art. 115. Professional Communications 807 Art. 116. Confidential Communications With Legal Advisers 815 Art. 117. Clergymen and Medical Men 815 Art. 118. Production of Title-Deeds of Witness Not a Party 821 Art. 119. Production of Documents Which Another Person, Having Possession, Could Refuse to Produce 822 Art. 120. Witness Not to be Compelled to Incrimin- ate Himself 823 Art. 121. Corroboration, When Required 834 Art. 122. Number of Witnesses 840 TABLE OF CONTENTS. XV CHAPTER XVI. OF TAKING ORAL EVIDENCE. AND OF THE EXAMINATION OF WITNESSES. Art. 123. Evidence to be Upon Oath, Except in Cer- tain Cases 845 Art. 124. Form of Oaths; By Whom They May be Administered 847 Art. 125. How Oral Evidence May Be Taken 849 Art. 126. Examination in Chief, Cross-Examination, and Re-Examination 852 Art. 127. To What Matters Cross-Examination and Re-Examination Must be Directed 857 Art. 128. Leading Questions 865 Art. 129. Questions Lawful in Cross-Examination .... 869 Art. 129a. Judge's Discretion as to Cross-Examination to Credit 877 Art 130. Exclusion of Evidence to Contradict An- swers to Questions Testing Veracity 878 Art. 131. Statements Inconsistent with Present Tes- timony May be Proved 880 Art. 132. Cross-Examination as to Previous State- ments in Writing 889 Art. 133. Impeaching: Credit of Witness 892 Art. 131. Offenses Against Women 917 Art. 135. What Matters May be Proved in Reference to Declarations Relevant Under Arts. 25-34 922 Art. 136 Refreshing Memory 923 Art. 137. Right of Adverse Party as to Writing Used to Refresh Memory 936 Art. 138. Giving, as Evidence, Document Called for and Produced on Notice 937 Art. 139. Using', as Evidence, a Document, Produc- tion of Which Was Refused on Notice. . . .938 CHAPTER XVII. OF DEPOSITIONS. Art. 140. Depositions Before Magistrates 939 Art. 141. Depositions Under 30 & 31 Vict. C. 35, s. 6.. 947 Art. 142. Depositions Under Merchants Shipping Act, 1854 949 CHAPTER XVIII. OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE. Ait. 143 953 INDEX 961 TABLE OF ABBREVIATIONS. A (t K Adolphus & Ellis' Reports App. Gas Appeal Cases Ariz Arizona Supreme Court Reports Ark Arkansas Supreme Court Reports Atk Atkyn's Reports r iv Common Pleas Division c. & J Crompton & Jervis's Reports [>. & B Dearsley & Bell's Crown Cases [ »ear„ or Dearsley & P Dearsley's Crown Cases De ' '.e. & J De Gex & Jones's Reports De ' ;. M. & G De Gex. Macnaughten, & Gordon I ip < ;. & S De Gex & Smale's Reports Den. C. C Denison's Crown Cases Doug Douglas's Reports I mi & War Driiry & Warren's Reports Ka East's Reports Bast, P. < - East's Pleas of the Crown E. & B Kllis & Blackburn's Reports I"s]> Espinasse's Reports EX Exchequer Reports Kx. I>iv Exchequer I >i vision F Federal Reporter F. & F Foster & Finlason's Reports '",eii. View Cr. Daw Stephen's General View of the Criminal Law Greenl. Ev Greenleaf on Evid< Hale, P. C Hale's Pleas of the Crown Hare Hare's Reports H. Bl H. Blackstone's Reports H. & C Hurlston & ("oltman's Reports H. & N Hurlston & Norman's Reports H. L.. C House of Lord's Cases TABLE OF ABBREVIATIONS. Ida Idaho Supreme Court Reports Ir. Cir. Rep Irish Circuit Reports Ir. Rep. Eq Irish Equity Reports Jac. & Wal Jacob & Walker's Reports Jebb, C. C Jebb's Criminal Cases (Ireland) Kan Kansas Supreme Court Reports Keen Keen's Reports, Chancery D~ Ed Law Edition, U. S. Supreme Court Reports Tj. & C Leigh & Cave's Crown Cases Leach Leach's Crown Cases L. J. Ch Law Journal, Chancery L. J. Eq Law Journal, Equity L. J. M. C Law Journal, Magistrate's Cases L. J. N. S Law Journal, New Series L. R. Ch. Ap Law Reports, Chancery Appeals L. R. C. C Law Reports, Crown Cases Reserved L. R. C. P Law Reports, Common Pleas L. R. Ex Law Reports, Exchequer L. R. Q. B Law Reports, Queen's Bench Madd Maddock's Reports Man. & R Manning & Ryland's Reports McNally Ev McNally's Rules of Evidence Mont. Montana Supreme Court Reports Moo. C. C Moody's Crown Cases M. & G Manning & Granger's Reports M. & K Mylne & Keen's Reports M. & M Moody & Malkin's Reports Moo. P. C Moore's Privy Council Reports Mo. & Ro Moody & Robinson's Reports M. & S Maule & Selwyn's Reports M. & W Meeson & Welsby's Reports Neb Nebraska Supreme Court Reports Nev Nevada Supreme Court Reports N. D North Dakota Supreme Court Reports N. M New Mexico Supreme Court Reports N. W Northwestern Reporter Pea. R Peake's Reports Phill Phillips' Reports Phi. Ev Phillips on Evidence, 10th Ed. Price Price's Reports P. D Probate Division P Pacific Reporter Q- B Queen's Bench Reports Q. B. D Queen's Bench Division Or Oregon Supreme Court Reports Okl Oklahoma Supreme Court Reports Okl. Cr Oklahoma Criminal Reports R. N. P Roscoe's Nisi Prius, 13th Ed. R. & R Russell & Ryan's Crown Cases Russ. on Crimes Russell on Crimes, 4th Ed. Selw. N. P Selwyn's Nisi Prius Simon Simon's Reports Simon (N. S.) Simon's Reports, New Series Sim. & Stu Simon & Stuart's Reports Smith, L. C Smith's Leading Cases, 7th Ed. Star Starkie's Reports Starkie Starkie on Evidence, 4th Ed. S. & T Swabey & Tristram's Reports S. T., or St. Trl State Trials Story's Eq. Jur Story on Equity Jurisprudence Swab. Ad Swabey's Admiralty Reports S. D South Dakota Supreme Court Reports S. W , Southwestern Reporter T. R Term Reports T. E Taylor on Evidence, 6th Ed. Tau Taunton's Reports TABLE OF ABBREVIATIONS. xix Tex Texas Supreme Court Reports Tex. App Texas Appeals Reports (Criminal) Tex. Cr. R Texas Criminal Reports Tex. Civ. App Texas Civil Appeals Reports U. S United States Supreme Court Reports Utah Utah Supreme Court Reports Ve Vesey's Reports Wash Washington Supreme Court Reports Wig. Ext. Ev Wigram on Extrinsic Evidence Wills' Circ. Ev Wills on Circumstantial Evidence Wigmore's Wigmore's Evidence Wyo Wyoming Supreme Court Reports INTRODUCTION. In the years 1870-1871 I drew what afterwards became the Indian Evidence Act (Act 1 of 1872). This Act began by re- pealing (with a few exceptions) the whole of the Law or Evi- dence then in force in India, and proceeded to re-enact it in the form of a code of 167 sections, which has been in opera- tion in India since September, 1872. I am informed that it is generally understood, and has required little judicial com- mentary or exposition. In the autumn of 1872, Lord Coleridge (then Attorney-Gen- eral) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August. 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed. It was drawn on the model of the Indian Evidence Act, and contained a complete system of law upon the subject of Evidence. The present work is founded upon this Bill, though it dif- fers from it in various respects. Lord Coleridge's Bill pro- posed a variety of amendments of the existing law. These are omitted in the present work, which is intended to repre- sent the existing law exactly as it stands. The Bill, of course, was in the ordinary form of an Act of Parliament. In the book I have allowed myself more freedom of expression, though I have spared no pains to make my statements pre- cise and complete. In December, 1875, at the request of the Council of Legal Education, I undertook the duties of Professor of Common Law, at the Inns of Court, and I chose the Law of Evidence for the subject of my first course of lectures. It appeared to me that the draft Bill which 1 had prepared for Lord Cole- ridge supplied the materials for such a statement of the law as would enable students to obtain a precise and systematic acquaintance with it in a moderate space of time, and with- out a degree of labor disproportionate to its importance in relation to other branches of the law. No such work, so fai- ns I know, exists; for all the existing books on the Law of Evidence are written on the usual model of English law- books, which, as a general rule, aim at being collections more or less complete of all the authorities upon a given subject. to which a judge would listen in an argument in court. Such works often become, under the hands of successive editors, tlie repositories of an extraordinary amount of research, but ili'-y seem to me to have the effect of making the attainment by direct study of a real knowledge of the law, or of any branch of it as a whole, almost Impossible. The enormous mass of detail -and illustration which they contain, and the habit into which their writers naturally fall, of introducing into them everything which has any sort of connection, how- ever remote, with the main subject, make these books us* for purposes of study, though they may increase their utility as works of reference. The fifth edition of Mr. Taylor's work on Evidence contains 1797 royal 8vo pages. To judge from the table of cases, it must refer to about 9000 judicial deci- sions, and it cites nearly 750 Acts of Parliament. The "Ros- coe's Digest of the Law of Evidence on the Trial of Actions INTRODUCTION. at Nisi Prius," contains 1556 closely printed pages. The table of cases cited consists of 77 pages, one of which con- tains the names of 152 cases, which would give a total of 11,704 cases referred to. There is, besides, a list of references to statutes which fills 21 pages more. "Best's Principles of the Law of Evidence," which disclaims the intention of add- ing to the number of practical works on the subject, and is said to be intended to examine the principles on which the rules of evidence are founded, contains 908 pages, and refers to about 1400 cases. When we remember that the Law of Evidence forms only one branch of the Law of Procedure, and that the Substantive Law which regulates rights and duties ought to be treated independently of it, it becomes obvious that if a lawyer is to have anything better than a familiarity with indexes, he must gain his knowledge in some other way than from existing books. No doubt such knowl- edge is to be gained. Experience gives by degrees, in favor- able cases, a comprehensive acquaintance with the principles of the law with which a practitioner is conversant. He gets to see that it is shorter and simpler than it looks, and to understand that the innumerable cases which at first sight appear to constitute the law, are really no more than illus- trations of a comparatively small number of princples; but those who have gained knowledge of this kind have usually no opportunity to impart it to others. Moreover, they acquire it very slowly, and with needless labor themselves, and though knowledge so acquired is often specially vivid and well remembered, it is often fragmentary, and the posses- sion of it not unfrequently renders those who have it scep- tical as to the possibility, and even as to the expediency, of producing anything more systematic and complete. The circumstances already mentioned led me to put into a systematic form such knowledge of the subject as I had acquired. This work is the result. The labor bestowed upon it has, I may say, been in an inverse ratio to its size. My object in it has been to separate the subject of evi- dence from other branches of the law with which it has commonly been mixed up; to reduce it into a compact, sys- tematic form, distributed according to the natural division of the subject-matter; and to compress into precise, definite rules, illustrated, when necessary, by examples, such cases and statutes as properly relate to the subject-matter so limited and arranged. I have attempted, in short, to make a digest of the law, which, if it were thought desirable, might be used in the preparation of a code, and which, at all events, will, I hope, be useful, not only to professional stu- dents, but to everv one who takes an intelligent interest in a part of the law of his country bearing directly on every kind of investigation into questions of fact, as well as on every branch of litigation. The Law of Evidence is composed of two elements, namely: first, an enormous number of cases, almost all of which have been decided in the course of the last one hundred or one hundred and fifty years, and which have already been col- lected and classified in various ways by a succession of text- writers, the most recent of whom I have already named; secondly, a comparatively small number of Acts of Parlia- ment which have been passed in the course of the last thirty or fortv years, and have effected a highly beneficial revolution in the law as it was when it attracted the denun- ciations of Bentham. Writers on the Law of Evidence usually refer to statutes by the hundred, but the Acts of Parliament which really relate to the subject are but few. A detailed account of this matter will be found at the end of the vol- ume, in Note XLIX. INTRODUCTION. xxiii The arrangement of the book is the same as that of the Indian Evidence Act, and is based upon the distinction be- tween relevancy and proof, that is, between the question, What facts may be proved? and the question. How must a fact be proved assuming that proof of it may be given? The neglect of this distinction, which is concealed by the ambig- uity of the word evidence (a word which sometimes means testimony and at other times relevancy) has thrown the whole subject into confusion, and has made what is really plain enough appear almost incomprehensible. In my Introduction to the Indian Evidence Act published in 1872, and in speeches made in the Indian Legislative Council. I entered fully upon this matter. It will be suffi- cient here to notice shortly the principle on which the ar- rangement of the subject is based, and the manner in which the book has been arranged in consequence. The great bulk of the Law of Evidence consists of nega- tive rules declaring what, as the expression runs, is not evidence. The doctrine that all facts in issue and relevant to the issue, and no others, may be proved, is the unexpressed principle which forms the center of and gives unity to all these express negative rules. To me these rules always ap- peared to form a hopeless mass of confusion, which might. be remembered by a great effort, but could not be understood as a whole, or reduced to system, until it occurred to me to ask the question. What Is this evidence which you tell me hearsay is not? The expression "hearsay is not evidence" seemed to assume that I knew by the light of nature what evidence was. but I perceived at last that that was just what I did not know. I found that I was in the position of a per- son who, having never seen a cat, is instructed about them in this fashion: "Lions are not cats in our sense of the word, nor are tigers nor leopards, though you might be in- clined to think they were." Show me a cat to begin with, and I at once understand both what is meant by saying that a lion is not a cat, and why it is possible to call him one. Tell me what evidence is. and I shall be able to understand why you say that this and that class of facts are not evidence. The question "What is evidence?" gradually disclosed the ambiguity of the word. To describe a matter of fact as "evi- dence" in the sense of testimony Is obviously nonsense. No one wants to ht- told that hearsay, whatever else it is, is not testimony. What then does the word mean? The only pos- sible answer is: It means that the one fact either is or else is not considered by the person using the expression to fur- nish a premise or part of a premise from which the existence of the other is a necessary or probable inference; in other words, that the one fact is or Is not relevant to the other. When the inquiry is pushed further, and the nature of rele- vancy has to be considered in itself, and apart from legal rules about it. we are led to inductive logic, which shows thai judicial evidence is only one case of the general problem of BCience, — namely, inferring the unknown from the known. As far as the logical theory of the matter is concerned, this Is an ultimate answer. The logical theory was cleared up by Mr. Mill. Bentham and some* other writers had more or less discussed the connection of logic with the rules of evidence. But I am not aware that it occurred to anv one before 1 published my "Introduction to the Indian Evidence •See, for example, that able and Interesting book "An Essay on Circumstantial Evidence." )>v the late Mr. Wills father of Mr. Alfred Wills. Q. c. chief Baron Gilbert's work on t lie Law of Evidence is founded on Locke's "Essay," much «« mv work is founded on Mill's "Logic " INTRODUCTION. Act" to point out in detail the very close resemblance which exists between Mr. Mill's theory and the existing state of the law. The law has been worked out by degrees by many genera- tions of judges who perceived more or less distinctly the principle on which it ought to be founded. The rules estab- lished by them no doubt treat as relevant some facts which cannot perhaps be said to be so. More frequently they treat as irrelevant facts which are really relevant, but exceptions excepted, all their rules are reducible to the principle that facts in issue or relevant to the issue, and no others, may be proved. The following outline of the contents of this work will show how I have applied this principle in arranging it. All law may be divided into Substantive Law, by which rights, duties, and liabilities are defined, and the Law of Procedure by which the Substantive Law is applied to par- ticular cases. The Law of Evidence is that part of the Law of Proce- dure which, with a view to ascertain individual rights and liabilities in particular cases, decides: I. What facts may, and what may not be proved in such cases: II. What, sort of evidence must be given of a fact which may be proved; III. By whom and in what manner the evidence must be produced by which any fact is to be proved. I. The facts which may be proved are facts in issue, or facts relevant to the issue. Facts in issue are those facts upon the existence of which the right or liability to be ascertained in the proceeding depends. Facts relevant to the issue are facts from the existence of which inferences as to the existence of the facts in issue may be drawn. A fact is relevant to another fact when the existence of the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of the existence of the other, or when the existence of the one, either alone or to- gether with other facts, renders the existence of the other highly probable, or improbable, according to the common course of events. Four classes of facts, which in common life would usually be regarded as falling within this definition of relevancy, are excluded from it by the Law of Evidence except in cer- tain cases: — 1. Facts similar to, but not specifically connected with, each other. (Res inter alios actoe.) 2. The fact that a person not called as a witness has as- serted the existence of any fact. (Hearsay.) 3. The fact that any person is of opinion that a fact exists. (Opinion.) 4. The fact that a person's character is such as to render conduct imputed to him probable or improbable. (Character.) To each of those four exclusive rules there are, however, important exceptions, which are defined by the Law of Evi- dence. II. As to the manner in which a fact in issue or relevant fact must be proved. Some facts need not be proved at all, because the Court will take judicial notice of them, if they are relevant to the issue. Every fact which requires proof must be proved either by oral or by documentary evidence. Every fact, except (speaking generally) the contents of a document, must be proved by oral evidence. Oral evidence INTRODUCTION. xxv must in every case be direct; that is to say, it must consist of an assertion by the person who gives it that he directly perceived the fact to the existence of which he testifies. Documentary evidence is either primary or secondary. Pri- mary evidence is the document itself produced in court for inspection. Secondary evidence varies according to the nature of the document. In the case of private documents a copy of the document, or an oral account of its contents is secondary evidence. In the case of some public documents, examined or certified copies, or exemplifications, must or may be pro- duced in the absence of the documents themselves. Whenever any public or private transaction has been re- duced to a documentary form, the .document in which it is recorded becomes exclusive evidence of that transaction, and its contents cannot, except in certain cases expressly defined, be varied by oral evidence, though secondary evidence may be given of the contents of the document. III. As to the person by whom, and the manner in which the proof of. a particular fact must be made. When a fact is to be proved, evidence must be given of it by the person upon whom the burden of proving it is im- posed, either by the nature of the issue or by any legal pre- sumption, unless the fact is one which the party is estopped from proving by his own representations, or by his conduct, or by his relation to the opposite party. The witnesses by whom a fact is to be proved must be competent. With very few exceptions, every one is now a competent witness in all cases. Competent witnesses, how- ever, are not in all cases compelled or even permitted to testify. The evidence must be given upon oath, or in certain ex- cepted cases without oath. The witnesses must be first ex- amined in chief, then cross-examined, and then re-examined. Their credit may be tested in certain ways, and the answers which they give to questions affecting their credit may be contradicted in certain cases and not in others. This brief statement will show what 1 regard as constitut- ing the Law of Evidence, properly so called. My view of it excludes many things which are often regarded as forming part of it. The principal subjects thus omitted are as follows: I regard the question, What may be proved under particular issues? (which many writers treat as part of the Law of Evidence) as belonging partly to the subject of pleading, and partly to each of the different branches into which the Sub- stantive Law may be divided. A is indicted for murder, and pleads Not Guilty. This plea puts in issue, among other things, the presence of any state of mind describable as malice aforethought, and all matters oi justification or extenuation. Starkie and Roscoe treat these subjects at full length, as supplying answers to the question, What can be proved under ;in issue of Not Guilty on an indictment for murder? Mr. Taylor does not go so far as this; but a great part of his book is based upon a similar principle of classification. Thus chapters i. and ii. of Part II. are rather a treatise on plead- ing than a treatise on evidence. Again, I have dealt very shortly with the whole subject of presumptions. My reason is that they also appear to me to belong to different branches of the Substantive Law, and to be unintelligible, except in connection with them. Take, for instance, the presumption that every one knows the law. The real meaning of this is that, speaking generally, ignor- ance of the law is not taken as an excuse for breaking it. This rule cannot be properly appreciated if it is treated as a part of the Law of Evidence. It belongs to the Criminnl xxvi INTRODUCTION. Law. In the same way numerous presumptions as to rights of property (in particular easements and incorporeal heredi- taments) belong not to the Law of Evidence but to the Law of Real Property. The only presumptions which, in my opinion, ought to find a place in the Law of Evidence, are those which relate to facts merely as facts, and apart from the particular rights Avhich they constitute. Thus the rule, that a man not heard of for seven years is presumed to be dead, might be equally applicable to a dispute as to the va- lidity of a marriage, an action of ejectment by a reversioner against a tenant pur auter vie, the admissibility of a declara- tion against interest, and many other subjects. After care- ful consideration, I have put a few presumptions of this kind into a chapter on the subject, and have passed over the rest as belonging to different branches of the Substantive Law. Practice, again, appears to me to differ in kind from the Law of Evidence. The rules which point out the manner in which the attendance of witnesses is to be procured, evidence is to be taken on commission, depositions are to be authenti- cated and forwarded to the proper officers, interrogatories are to be administered, etc., have little to do with the general principles which regulate the relevancy and proof of matters of fact. Their proper place would be found in codes of civil and criminal procedure. 1 have, however, noticed a few of the most important of these matters. A similar remark applies to a great mass of provisions as to the proof of certain particulars. Under the head of "Pub- lic Documents," Mr. Taylor gives among other things a list of all, or most, of the statutory provisions which render cer- tificates or certified copies admissible in particular cases. To take an illustration at random, section 1458 begins thus: "The registration of medical practitioners under the Medical Act of 1858, may be proved by a copy of the 'Medical Reg- ister' for the time being, purporting," etc. I do not wish for a moment to undervalue the practical utility of such information, or the industry displayed in collecting it; but such a provision as this appears to me to belong, not to the Law of Evidence, but to the law relating to medical men. It is matter rather for an index or schedule than for a legal treatise, intended to be studied, understood, and borne in mind in practice. On several other points the distinction between the Law of Evidence and other branches of the law is more difficult to trace. For instance, the law of estoppel, and the law relating to the interpretation of written instruments, both run into the Law of Evidence. I have tried to draw the line by dealing in the case of estoppels with estoppels in pais only, to the exclusion of estoppels by deed and by matter of record, which must be pleaded as such; and in regard to the law of written instruments by stating those rules only which seemed to me to bear directly on the question whether a document can be supplemented or explained by oral evi- dence. The result is no doubt to make the statement of the law much shorter than is usual. 1 hope, however, that competent judges will find that, as far as it goes, the statement is both full and correct. As to brevity, 1 may say, in the words of Lord Mansfield: — "The law does not consist of particular cases, but of general principles which are illustrated and explained by those cases."* Everv one will express somewhat differently the principles which he draws from a number of illustrations; and this is one source of that quality of our law which those who dis- like it describe as vagueness and uncertainty, and those who "K. v. Bembridge, 3 Doug. 332. INTRODUCTION. xxvii like it as elasticity. I dislike the quality in question, and I used to think that it would be an improvement if the law were once for all enacted in a distinct form by the Legis- lature, and were definitely altered from time to time as oc- casion required. For many years I did my utmost to get others to take the same view of the subject, but I am now convinced by experience that the unwillingness of the Leg- islature to undertake such an operation proceeds from a want of confidence in its power to deal with such subjects, which is neither unnatural nor unfounded. It would be as impos- sible to get in Parliament a really satisfactory discussion of a Bill codifying the Law of Evidence as to get a committee of the whole House to paint a picture. It would, I am equally well satisfied, be quite as difficult at present to get Parlia- ment to delegate its powers to persons capable of exercising them properly. In the meanwhile the Courts can decide only upon cases as they actually occur, and generations may pass before a doubt is set at rest by a judicial decision expressly in point. Hence, if anything considerable is to be done to- wards the reduction of the law to a system, it must, at present at least, be done by private writers. Legislation proper is under favorable conditions the best way of making the law, but if that is not to be had, indirect legislation, the influence on the law of judges and legal writers who deduce, from a mass of precedents, such prin- ciples and rules as appear to them to be suggested by the great bulk of the authorities, and to be in themselves rational and convenient, is very much better than none at all. It has, indeed, special advantages, which this is not the place to insist upon. I do not think the law can be in a less cred- itable condition than that of an enormous mass of isolated decisions, and statutes assuming unstated principles, — cases and statutes alike being accessible only by elaborate indexes. I insist upon this because I am well aware of the prejudice which exists against all attempts to state the law simply, and of the rooted belief which exists in the minds of many lawyers that all general propositions of law must be mis- leading, and delusive, and that law books are useless except as indexes. An ancient maxim says, "Omnis definitio in jure periculosa." Lord Coke wrote, '"It is ever good to rely upon the books at large; for many times compendia sunt dispendia, and melius est petere fontes quam sectari rivulos." Mr. Smith chose this expression as the motto of his "Leading Cases," and the sentiment which it embodies has exercised immense influence over our law. It has not perhaps been sufficiently observed that when Coke wrote, the "books at large," namely the "Year Books" and a very few more mod- ern reports, contained probably about as much matter as two, or at most three, years of the reports published by the Coun- cil of Law Reporting; and that the compendia (such books, say, as Fltzherbert's "Abridgment") were merely abridg- ments of the rases in the "Year Books" classified in the roughest possible manner, and much inferior both in extent and arrangement to such a book as Fisher's "Digest."* In our own days it appears to me that the true fontes are not to lie found in reported cases, but in the rules and prin- ciples which such cases imply, and that the cases themselves 'Since the beginning of 1865 the Council has published eighty-six volumes of Reports. The Year Books from 1307- 1635, 228 years, would till not more than twenty-five such volumes. There arc also ten volumes of Statutes since 1865 i. May 1876). There are now (Feb., 1877), at least ninetv- three volumes of Reports and eleven volumes of Statutes. I have not counted the exact number in existence in 1881, but the ninety-three volumes must have grown to 120 or more. xxviii INTRODUCTION. are the rivuli, the following- of which is a dispendium. My attempt in this work has been emphatically petere fontes, to reduce an important branch of the law to the form of a con- nected system of intelligible rules and principles. Should the undertaking be favorably received by the pro- fession and the public, I hope to apply the same process to some other branches of the law; for the more I study and practice it, the more firmly am I convinced of the excellence of its substance and the defects of its form. Our earlier writers, from Coke to Blackstone, fell into the error of as- serting the excellence of its substance in an exaggerated strain, whilst they showed much insensibility to defects, both of substance and form, which in their time were grievous and glaring. Bentham seems to me in many points to have fallen into the converse error. He was too keen and bitter a critic to recognize the substantial merits of the system which he attacked; and it is obvious to me that he had not that mastery of the law itself which is unattainable by mere theoretical study, even if the student is, as Bentham cer- tainly was, a man of talent, approaching closely to genius. During the last twenty-five years Bentham's influence has to some extent declined, — partly because some of his books are like exploded shells, buried under the ruins which they have made, and partly because under the influence of some of the most distinguished of living authors, great attention has been directed to legal history, and in particular to the study of Roman Law. It would be difficult to exaggerate the value of these studies, but their nature and use is liable to be misunderstood. The history of the Roman Law no doubt throws great light on the history of our own law; and the comparison of the two great bodies of law, under one or the other of which the laws of the civilized world may be clas- sified, cannot fail to be instructive; but the history of bygone institutions is valuable mainly because it enables us to under- stand, and so to improve existing institutions. It would be a complete mistake to suppose either that the Roman Law is in substance wiser than our own, or that in point of ar- rangement and method the Institutes and the Digest are anything but warnings. The pseudo-philosophy of the Insti- tutes and the confusion of the Digest, are, to my mind, in- finitely more objectionable than the absence of arrangement and of all general theories, good or bad, which distinguish the Law of England. However this mav be, I trust the present work will show that the law of England on the subject to which it refers is full of sagacity and practical experience, and is capable of being thrown into a form at once plain, short, and systematic. I wish, in conclusion, to direct attention to the manner in which I have dealt with such parts of the Statute Law as are embodied in this work. I have given, not the very words of the enactments referred to, but what I understand to be their effect, though in doing so I have deviated as little as possible from the actual words employed. I have done this in order to make it easier to study the subject as a whole. Every Act of Parliament which relates to the Law of Evi- dence assumes the existence of the unwritten law. It can- not, therefore, be fully understood, nor can its relation to other parts of the law be appreciated, till the unwritten law has been written down so that the provisions of particular statutes may take their places as parts of it. When this is done, the Statute Law itself admits of, and even requires, very great abridgment. In many cases the result of a num- ber of separate enactments may be stated in a line or two. For instance, the old Common Law as to the incompetency of certain classes of witnesses was removed by parts of six INTRODUCTION. xxix different Acts of Parliament, the net result of which is given in five short articles (106-110). So, too, the doctrine of incompetency for peculiar or de- fective religious belief has been removed by many different enactments, the effect of which is shown in one article (123). The various enactments relating to documentary evidence (see chapter x.) appear to me to become easy to follow and to appreciate when they are put in their proper places in a general scheme of the law, and arranged according to their subject-matter. By rejecting every part of an Act of Par- liament except the actual operative words which constitute its addition to the law, and by setting it, so to speak, in a definite statement of the unwritten law of which it assumes the existence, it is possible to combine brevity with substan- tial accuracy and fullness of statement to an extent which would surprise those who are acquainted with Acts of Par- liament only as they stand in the Statute Book.* At the same time I should warn anyone who may use this book for the purposes of actual practice in or out of court, that he would do well to refer to the very words of the statutes embodied in it. It is very possible that, in stating their effect instead of their actual words, I may have given in some particulars a mistaken view of their meaning. Such are the means by which I have endeavored to make a statement of the Law of Evidence which will enable not only students of law, but I hope any intelligent person who cares enough about the subject to study attentively what I have written, to obtain from it a knowledge of that subject at once comprehensive and exact, — a knowledge which would enable him to follow in an intelligent manner the proceed- ings of courts of justice, and which would enable him to study cases and use text-books of the common kind with readiness and ease. I do not say more than this. I have not attempted to follow the matter out into its minute ramifica- tions, and I have avoided reference to what, after all, are little more than matters of curiosity. I think, however, that anyone who makes himself thoroughly acquainted with the contents of this book, will know fully and accurately all the leading principles and rules of evidence which occur in actual practice. If I am entitled to generalize at all from my own expe- rience, I think that even those who are already well ac- quainted with the subject will find that they understand the relations of its different parts, and therefore the parts them- selves more completely than they otherwise would, by being enabled to take them in at one view, and to consider them in their relation to each other. ♦Twenty articles of this work represent all that is material in the ten Acts of Parliament, containing sixty-six sections, which have been passed on the subject to which it refers. For the detailed proof of this, See Note XLVIII. A DIGEST OF THE LAW OF EVIDENCE FOR THE WESTERN STATES PART I. RELEVANCY. CHAPTER I. Preliminary. Article 1.* Definition of Terms. In this book the following words and expres- sions are used in the following senses unless a different intention appears from the context. "Judge" includes all persons authorized to take evidence, either by law or by the consent of the parties. Montana. The term "judge," in § 547, Code Civ. Proc, undoubtedly refers to the judge of a court of justice, and the verb "act," as there used, refers to the exercise of judicial functions in an action or proceeding therein. — First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718, 722. Texas. A judge, technically speaking, may not be a rep- resentative of the state in prosecuting parties charged with crime; but he is, nevertheless, an officer of the state, charged with the high and responsible duty of seeing that *See note at end of Article. 2 DEFINITION OF TERMS the law is faithfully administered. — Cox v. State, 8 Tex. Cr. R. 254, 282. The terms "court" and "judge," as used in the statute relating to the regulation of appeals, are not intended to be used interchangeably. — Chickasha Milling Co. v. Crutcher (Tex. Civ. App.), 141 S. W. 355. "Fact" includes the fact that any mental con- dition of which any person is conscious exists. [This term, of course, is used also in its ordinary sig- nification of matters upon which testimony is given, or desired to be given, etc.] California. Collateral facts are such as are offered in evidence to establish the matters or facts in issue. — Gar- wood v. Garwood, 29 Cal. 514, 521. Kansas. A verification stating that "the facts therein set forth are true," is not meaningless on the ground that facts are always true, but the word will be held to mean "matters," to represent the thing asserted.— State v. Grin- stead, 10 Kan. App. 74, 61 P. 976. "Document" means any substance having any matter expressed or described upon it by marks capable of being read. Washington. Where a statute gives the right to a new trial in a criminal case when the jury has received "any evidence, paper, document, or book, not allowed by the court," etc., the word "evidence" means tangible evidence, as a book, paper, or document in evidence, while the words "paper, document or book" mean a paper, document or book not in evidence. — Doctor Jack v. Territory, 2 Wash. T. 101, 3 P. 832. "Evidence" means — (1) Statements made by witnesses in court under a legal sanction, in relation to matters of fact under inquiry; such statements are called oral evidence. DEFINITION OF TERMS 3 (2) Documents produced for the inspection of the court or judge; such documents are called documentary evidence. The word "evidence," in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. — 1 Greenl. Ev., § 1. Any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being of- fered before a legal tribunal for the purpose of producing a conviction, positive or negative, on the part of the trib- unal, 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 Wigmore Ev., § 1. California. Evidence is simply the means of proving a fact; that which tends to establish a fact. — People v. Bowers (Cal.), 18 P. 660, 665. Nebraska. The word "evidence," when used in an instruc- tion, is understood to include all the means employed at the trial to ascertain the truth respecting the matters in dispute.— Lamb v. State, 69 Neb. 212, 95 N. W. 1050. Washington. Evidence is the medium through which proof is established, though in language of statutes and otherwise "proof" is often used as a synonym with evi- dence.— State v. Poole, 64 Wash. 47, 116 P. 468. Best Evidence. (The rule that the best evidence must be produced which can be adduced in the nature of the case has ref- erence almost entirely to the production of relevant docu- ments themselves, rather than of copies and other sec- ondary evidence of their contents or existence. As some- times expressed, "primary" evidence is required when possible, in preference to "secondary" evidence. The term, "best evidence," is sometimes used as per- taining to a choice of witnesses, one, from superior knowl- edge or other reasons, being more likely to disclose the fact than another.] The rule, commonly called the best evidence rule, which requires the best evidence of which the case in its nature 4 DEFINITION OF TERMS is susceptible, does not demand the greatest amount of evidence which can possibly be given of any fact, but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party. Thus a title by deed must be proved by the production of the deed itself, for this is the best evidence of which the case is susceptible. — Manhattan Malting Co. v. Sweteland, 14 Mont. 269, 36 P. 269; Scott v. State, 3 Tex. App. 103. The subject of Best Evidence is treated at length in Ch. IX. Circumstantial Evidence. [Testimony as to character, physical capacity, habit, knowledge, design or plan, intent, motive, identity, oppor- tunity, etc., are all in the nature of circumstantial evi- dence, as pointing to the factum probandum.] ninstration. [The question was whether the roof of an ice house was set on fire by defendant's locomotive. No one saw a spark from the engine alight upon and set fire to the roof. The question whether the engine so set the fire was one to be determined by circumstantial evidence. — Liverpool & L. & G. Ins. Co. v. Southern Pac. Co., 125 Cal. 434, 58 P. 55.] [See illustrations under Arts. 9-13; 1 Wigmore Ev., § 38.] Circumstantial evidence is of two kinds, namely, cer- tain, or that from which the conclusion in question nec- essarily follows; and uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by process of reasoning. — 1 Greenl. Ev., § 13a; Liverpool & L. & G. Ins. Co. v. Southern Pac. Co., 125 Cal. 434, 58 P. 55, 58; People v. Morrow, 60 Cal. 143. Where a conviction is sought upon circumstantial evi- dence alone the defendant cannot be convicted unless the state has proven beyond a reasonable doubt, by facts and circumstances, all of which are consistent with each other and with his guilt, and inconsistent with any reasonable theory of innocence. — People v. Strong, 30 Cal. 151; Har- rison v. State, 6 Tex. App. 42. DEFINITION OF TERMS 5 California. Circumstantial evidence of a crime is proof by testimony of a chain of circumstances pointing suffi- ciently strong to the commission of the crime. Such evi- dence may consist of admissions by the defendant, plans laid for the commission of the crime, such as putting him- self in a position to commit it; in short, any acts, decla- rations or circumstances admitted in evidence tending to connect the defendant with the commission of the crime. —People v. Morrow, 60 Cal. 142. Idaho. Circumstantial evidence in criminal cases is the proof of such facts or circumstances connected with or surrounding the commission of the crime as tends to show the guilt or innocence of accused. — State v. Marren, 17 Ida. 766, 107 P. 993. Kansas. Circumstantial evidence is that which shows the existence of one fact by proof of the existence of others from which the first is to be inferred. — State v. Kornstett, 62 Kan. 221, 61 P. 805, 808. Texas. The distinction between circumstantial evidence and direct evidence is that in the first instance the facts apply directly to the factum probandum, while circumstan- tial evidence is proof of a minor fact, which, by indirection, logically and rationally demonstrates the factum proban- dum. This is illustrated by proof of recent possession of stolen property. In such a case, resting alone upon such inculpatory evidence, the eye of no witness saw the thief in the act of taking the property stolen. Bi\t the witness may testify directly to the fact of seeing the thief, re- cently after the crime, in possession of the stolen prop- erty, and, when his possession is challenged, either declin- ing to explain or giving an explanation which was false, from which circumstances of the possession, directly sworn to, and circumstances of a failure to explain or a false explanation, the factum of the taking is inferred or deduced by the process of reasoning. — Beason v. State, 43 Tex. Cr. R. 442. 67 S. W. 96, 98. In an action by an engineer for injuries, the company contended it did not know the condition of the track, which was caused by an unprecedented rainfall. Evidence of a station agent as to his instructions from the train 6 DEFINITION OF TERMS dispatcher, refusing the engineer's request to take a sid- ing, was admissible to show knowledge. — Galveston, H. & S. A. Ry. Co. v. Fitzpatrick (Tex. Civ. App.), 91 S. W. 355. Testimony of isolated circumstances, all links in the chain sought to be established by circumstantial evidence, is admissible.— Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45. Competent Evidence. [This term is used mostly as a synonym of "admissible."] Texas. 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. — Horbach v. State, 43 Tex. 242, 249. Conclusive Evidence. California. Conclusive or unanswerable evidence is that which the law does not permit to be contradicted and over- come by other evidence. — Moore v. Hopkins, 83 Cal. 270, 23 P. 318. Corroborative Evidence. California. Testimony of an accomplice against a defend- ant, charged with burglary, is corroborated sufficiently to connect defendant with the commission of the offense, as required by statute, by proof that, there being stolen gold and silver coin to the amount of $313, among which were four $20 gold pieces, an Australian sovereign and a $3 gold piece, defendant when arrested the following day, had in his possession four $20 gold pieces, an Australian sover- eign, which the person, whose premises were robbed, testified that he recognized, and a $3 gold piece. — People v. Melvane, 39 Cal. 614. If the wife, when plaintiff in an action for divorce, tes- tifies that she detected the husband in the act of adulter- ous intercourse, her testimony is sufficiently corroborated, as required by statute, if it appears that the other party to such adulterous intercourse was of a doubtful character for chastity, and that the husband was in the habit of associating with women of bad character, and that this woman had been the only female inmate of his house for a long time. — Evans v. Evans, 41 Cal. 103. DEFINITION OF TERMS 7 Montana. Statutory corroboration of an accomplice was made by other evidence which in itself, and without the aid of the testimony of the accomplice, tended to connect defendant with a murder. — State v. Calder, 23 Mont. 504, 59 P. 903. New Mexico. Corroborating evidence is such evidence as tends, in some degree, of its own strength and independ- ently, to support some essential allegation or issue raised by the pleadings testified to by the witness whose evidence is sought to be corroborated, which allegation or issue, if unsupported, would be fatal to the case; and such cor- roborating evidence must, of itself, without the aid of any other evidence, exhibit its corroborative character by pointing, with reasonable certainty, to the allegation or issue which it supports. And such evidence will not be material unless the evidence sought to be corroborated it- self supports the allegation or point in issue.— Gildersleve v. Atkinson, 6 N. M. 250, 27 P. 477. Oregon. What is meant by corroborating evidence of the testimony of one witness to perjury is evidence aliunde — evidence which tends to show the perjury independent of the defendant's contrary declarations out of court or oth- erwise.— State v. Buckley, 18 Or. 228, 27 P. 838. Texas. Statutory corroboration of perjury necessary to supplement the testimony of one witness may be by cir- cumstantial evidence, consisting of proof of independent facts which, together, tend to establish the main fact, that is, the falsity of the oath, and which, together, strongly corroborate the truth of a single witness who has testified to such falsity. — Hernandez v. State, 18 Tex. App. 134, 51 Am. Rep. 295. Cumulative Evidence. Kansas. The fact that the newly-discovered evidence may tend to prove the same issue upon which proof was offered on the trial does not necessarily make it cumulative, and whether or not it is cumulative is to be determined from its kind and character rather than from its effect. — Win- field Building & Loan Ass'n v. McMullen, 59 Kan. 493, 53 P. 481. 8 DEFINITION OF TERMS The question was whether a surety signed the bond upon which suit was brought, but which at the time of trial was lost. Testimony was offered as to its existence and execution, and after judgment for defendant the bond was found and urged as newly-discovered evidence. The bond was held not merely cumulative evidence. — Winfield Building & Loan Ass'n v. McMullen, 59 Kan. 493, 53 P. 481. Nevada. That only is cumulative evidence which is in addition to or corroborative of what has been given at the trial. To render evidence subject to this objection, on an application for new trial, it must be cumulative, not with respect to the main issue between the parties, but upon some collateral or subordinate fact bearing upon that issue. (Admissions of grantor of plaintiff that title to lot was in defendant's grantor held not cumulative, where no other testimony as to admissions had appeared at the trial.) — Gray v. Harrison, 1 Nev. 506. Demonstrative Evidence. [This is where the object which is the source of the evi- dence is directly presented to the senses of the tribunal. It is sometimes called "Real Evidence." The matter will be treated under Art. 62, infra.] Direct Evidence. [Direct evidence is a term commonly used to denote tes- timony of a witness asserting that he perceived with his senses the fact which is sought to be proved, — as the ex- ecution of an instrument, the beating or killing of one person by another, the presence of a person at a given place and time, etc. In this sense it is distinguished from circumstantial evidence, which seeks to prove an act or matter, by testimony, not that any person directly per- ceived the act or matter, but that he perceived other things which would render the main fact or matter probable. The expression, "Oral evidence must be direct," in Art. 62, infra, is used in another sense, namely, that the person testify- ing must speak of his own knowledge as to the matters about which he gives testimony, and not recite the hear- say statements of others.] California. Direct or positive evidence is when a witness DEFINITION OF TERMS 9 can be called to testify to the precise fact which is the subject of the issue on trial. — People v. Morrow, 60 Cal. 142, 144. Montana. The death of a person alleged to have been killed is directly proved by the identification of certain teeth and charred bones as those of an adult person, and the testimony of an accomplice, corroborated by circum- stantial evidence, which in itself tended to prove such identity.— State v. Calder, 23 Mont. 504, 59 P. 903. Texas. Direct evidence is where the testimony applies directly to the factum probandum. — Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 98. Hearsay Evidence. [Hearsay evidence is that which attempts to prove the event in question, not by the assertion of one who has personal knowledge of it, but by a transmission of his extra judicial assertion through the medium of a witness who knows not of the event, but of the former's narration in respect to it. The hearsay rule is subject to numerous exceptions, and both the rule and its exceptions form the subject matter of Chapter IV.] Illustration. [The question is, whether the husbana or the wife per- ished first, by murder and burning of the house in which they lived. The verdict of a coroner's jury, not purporting to con- tain a statement of any facts within the knowledge of the coroner, is mere hearsay and inadmissible. — Hollister v. <"..r- dero, 76 Cal. 649, 18 P. 855.] California. The exclusion of hearsay evidence is based upon the principle that every litigant who comes into a court of justice has a clear right to have the witness against him brought into court face to face, so that he may be tested by cross-examination as to every fact con- cerning which he has given evidence. It has been said that a person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to ex- plain any obscurities, to remove any ambiguities. He entrenches himself in his simple assertion that he was 10 DEFINITION OF TERMS told so and so, and leaves the burden upon his dead or absent author.— San Francisco Teaming Co. v. Gray, 11 Cal. App. 314, 104 P. 999. Oregon. Hearsay, in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness, himself, but rests, also, in part, on the veracity and competency of some other persons.— State v. Ah Lee, 18 Or. 540, 23 P. 424. Incompetent Evidence. [The word "incompetent" is frequently used in stating objections to evidence and has a meaning practically iden- tical with "inadmissible" and "irrelevant."] Texas. "If there be any material difference between 'in- competent' and 'not permissible under the rules of evi- dence,' it is not quite apparent to us." — Texas Brewing Co. v. Dickey (Tex. Civ. App.), 43 S. W. 577. Indirect Evidence. [This term is sometimes used in the sense of circum- stantial evidence, as contra-distinguished from direct evi- dence.] Negative Evidence. California. Ledger showing no entry of item sued on, ad- missible. — Ford v. Cunningham, 87 Cal. 209, 25 P. 403. Colorado. Testimony of postmaster that records of post- office did not show any registered letters in question to have been received, admissible. — Knapp v. Day, 4 Colo. App. 21, 34 P. 1008. An alibi may become material in a civil case, as on an issue as to whether a note made at a certain time and place was a forgery. — Brown v. Tourtelotte, 24 Colo. 214, 50 P. 195. Kansas. Testimony of a cashier and bookkeeper of bank that he had made all entries of money received at bank and had made examination of the books, and that they did not show a payment in question, admissible. — Woods v. Hamilton, 39 Kan. 69, 17 P. 335. A book containing a list of depositors is admissible to show that a person has no account. — State v. McCormick, 57 Kan. 440, 46 P. 777. DEFINITION OF TERMS 11 Montana. Where character is in issue, testimony of a witness, in a position to know what people say about a person, that he has neyer heard the character of such person questioned, is admissible. — Matusevitz v. Hughes, 26 Mont. 212, 68 P. 467. South Dakota. Account books of a commercial house, con- taining no credit or evidence of payment, some evidence of nonpayment of claim. — Union School Furniture Co. v. Mason, 3 S. D. 147, 52 N. W. 671. Texas. The fact that letters sent to certain persons at a certain town were returned was not admissible to show that the parties did not live in that neighborhood. — Daw- son v. State, 38 Tex. Cr. R. 50, 41 S. W. 599. In an action by an employe for injuries sustained by the breaking of a ladder while he was descending into a tank car, testimony of another employe that no ladder had ever broken with him in a tank car, is inadmissible. — Adams v. Gulf, C. & S. Ry. Co. (Tex. Civ. App.), 105 S. W. 526. Nor that no one had ever been before injured by a flying staple. — Bering Mfg. Co. v. Peterson (Tex. Civ. App.), 67 S. W. 133. That there was no record of a marriage license in the office of the county clerk did not show that no such license had never been issued. — Wiess v. Hall (Tex. Civ. App.), 135 S. W. 384. The custodian of an office, and not a stranger, is the proper person to prove that a record of conveyance does not exist. — Mounger v. Daugherty (Tex. Civ. App.), 138 S. W. 1070. Where the person who makes the statement that he did not hear or see the particular incident inquired about is so placed, and the circumstances surrounding him at the time as to his ability to hear and see are such that his failure to hear or see the incident may be inconsistent with the happening of the event, such person's negative testimony in opposition to affirmative statements is ad- missible. (Question as to announcement of means of exit from train.)— Ft. Worth & D. C. Ry. Co. v. Taylor, (Tex. Civ. App.), 153 S. W. 355. Washington. Negative testimony is competent and at times the only testimony by which an issue may be estab- 12 DEFINITION OP TERMS lished. — Schon v. Modern Woodmen of America, 51 Wash. 482, 99 P. 25. Presumptive Evidence. Kansas. Circumstantial or presumptive evidence is that which shows the existence of one fact by proof of the ex- istence of others from which the first may be Inferred. — State v. Kornstett, 62 Kan. 221, 61 P. 805, 808. Nebraska. Presumptive evidence consists in the proof of minor or other facts, incidental to or usually connected with the fact sought to be proved, which, taken together, inferentially establish or prove the fact in question to a reasonable degree of certainty. — Horbach v. Miller, 4 Neb. 31, 44. North Carolina. This term is also sometimes used in the sense of "prima facie" evidence. — State v. Mitchell, 119 N. C. 784, 25 S. E. 783. Prima Facie Evidence. California. Prima facie evidence is that which suffices for the proof of a particular fact until contradicted and overcome by other evidence. — Moore v. Hopkins, 83 Cal. 270, 23 P. 318. Kansas. The fact that soon after the passing of an engine a fire starts near a railway track in an enclosed field, cov- ered at the time with a growth of highly inflammable veg- etation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders, or was put to special exertion, and without further proof excluding other possible origins. — Kansas City, Ft. S. & M. R. Co. v. Perry, 65 Kan. 792, 70 P. 870. New Mexico. The words, "prima facie evidence of title," mean evidence sufficient to establish title unless some person shows a better title. — Bell v. Skillicorn, 6 N. M. 399, 28 P. 768. Oregon. Prima facie evidence is that degree of proof which, unexplained or uncontradicted, is alone sufficient to establish the truth of a legal principle asserted by a jjarty.— State v. Kline, 50 Or. 426, 93 P. 237. DEFINITION OP TERMS 13 Primary Evidence. [This term is sometimes used in the sense of prima facie evidence, as in Cross v. Baskett, 17 Or. 84, 21 P. 47, where it is stated that primary evidence is that which suffices for the proof of a particular fact until contradicted or overcome by other evidence; but in its ordinary signifi- cation it is used as synonymous with "Best Evidence," quid vide.] Secondary Evidence. [Secondary evidence is the correlative of "best" or "pri- mary" evidence, and in the usual acceptation of the term means the proving of the terms of a document by oral testimony as to its contents, when the document itself is not available. This subject is taken up at length in Chapter IX.] Evidence Wrongfully Obtained. California. The fact that an original judgment roll of a case tried in another county was illegally taken from the proper office does not affect its competency as evi- dence.— People v. Alden, 113 Cal. 264, 45 P. 327. Nebraska. When papers or letters are offered in evidence on the trial of a case which are pertinent to the issue they should be admitted; the court will not take notice how they were obtained, nor will it form a collateral issue to determine that question. — Sanford v. Sornborger, 26 Neb. 295, 41 N. W. 1102. United States. Proof that some letters offered in evidence were obtained by robbing the United States mail would not be relevant on a charge of conspiracy to defraud the United States.— Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114. Legislative Power to Change Rule of Evidence. There is no vested right in a rule of evidence. — Jones v. Hickey, 80 Kan. 109, 102 P. 247; Broadie v. Carson, 81 Kan. 467, 106 P. 294. (Statute declaring what should con- stitute a prima facie showing of legal service of notice of default in purchase of school lands.) Boise City Irri- gation & Land Co. v. Stewart, 10 Ida. 38, 77 P. 225. (Pro- viding that certain maps and plats should be accepted as evidence on the trial of actions to establish rights to the use of water.) Wheelock v. Myers, 64 Kan. 47, 67 P. 632; 14 DEFINITION OP TERMS Little Rock & Ft. S. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; Parke v. Williams, 7 Cal. 247. Nebraska. The legislature has no power to establish rules which, under pretense of regulating evidence, alto- gether prohibit a party from exhibiting his rights.— Larson v. Dickey, 39 Neb. 463, 58 N. W. 167. North Dakota. Statute requiring no proof of corporate existence unless such existence was denied under oath, applies to case where answer was filed before law went into effect.— First Meth. Episcopal Church v. Fadden, 8 N. D. 162, 77 N. W. 615. Oregon. The rule which imposes upon a defendant the burden of proof in a prosecution for a statutory crime does not violate any vested right which he possesses. — State v. Kline, 50 Or. 426, 93 P. 237. Texas. A statute removing the incompetency of a witness to testify, such as permitting a seduced woman to testify, relates to a mode of procedure only, in which no one can have a vested right, and applies to an act committed be- fore the statute went into effect. — Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764. A statute providing that after an instrument shall have been recorded for ten years it shall be admitted in evi- dence, whether or not proved or acknowledged in the manner required by statute, does not violate any consti- tutional right of those who acquired rights before the act took effect. — Ariola v. Newman, 51 Tex. Civ. App. 617, 113 S. W. 157; Harvey v. Gartin, 51 Tex. Civ. App. 577, 113 S. W. 166. Nor does it apply to suits begun prior thereto. — Sims v. Sealy, 53 Tex. Civ." App. 518, 116 S. W. 630. Proof. California. Proof is the establishment of a fact by evi- dence. — People v. Bowers (Cal.), 18 P. 660, 665. There is an obvious difference between the words "evi- dence" and "proof." The former, in legal acceptation, in- cludes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. The latter is the effect or result of evi- dence. — Schloss v. His Creditors, 31 Cal. 201. DEFINITION OF TERMS 15 "Conclusive Proof" means evidence upon the production of which, or a fact upon the proof of which, the judge is bound by law to regard some fact as proved, and to exclude evidence intended to disprove it. California. Conclusive evidence is defined by statute as that which the law does not permit to be contradicted. — Payne v. Ward, 23 Cal. App. 492, 138 P. 967. "A Presumption" means a rule of law that courts and judges shall draw a particular infer- ence from a particular fact, or from particular evidence, unless and until the truth of such infer- ence is disproved. Kansas. The presumption of innocence has the effect of evidence, in that it rebuts the evidence of guilt up to the point that the latter, notwithstanding the presumption, convinces the jury beyond a reasonable doubt of the truth of the charge; but yet it is only a presumption, and not evidence.— State v. Reilly. S5 Kan. 175, 116 P. 481. Nebraska. A presumption means a rule of law that courts and judges shall draw a particular inference from a par- ticular fact or from particular evidence, unless and until the truth of such inference be disproved. — First Nat. Bank of Elgin v. Adams, (Neb.), 118 N. W. 1055. New Mexico. An inference is nothing more than a per- missible deduction from the evidence, while a presumption is compulsory and cannot be disregarded by the jury. — Territory v. Lucero. 16 N. M. 652, 120 P. 304. Oklahoma. A presumption is a conclusion drawn from the proof of facts or circumstances, and stands as estab- lishing facts until overcome by contrary proof. — Johnson v. Territory, 5 Okla. 695, 50 P. 90. Oregon. A presumption may, under the wording of the statute, be defined as evidence. — Caraduc v. Schanen-Blair Co., 66 Or. 310, 133 P. 636. 16 DEFINITION OF TERMS A presumption is a species of evidence, to be weighed with other evidence by the jury.— Ward v. Queen City Fire Ins. Co., 69 Or. 347, 138 P. 1067. A presumption is by statute declared to be a deduction which the law expressly directs to be made from particu- lar facts. — Ward v. Queen City Fire Ins. Co., 69 Or. 347, 138 P. 1067. \ South Dakota. A presumption is not generally regarded as evidence to be placed in the balance and weighed, but only a rule of law as to which party shall first proceed and go forward with the evidence to prove the issue. — Rock Island Plow Co. v. Balderson, 26 S. D. 399, 128 N. W. 482. [The subject of presumptions is taken up at length in Ch. XIV. See, also, 4 Wigmore Ev., § 2490.] The expression, "facts in issue," means — (1) All facts which, by the form of the plead- ings in any action, are affirmed on one side and denied on the other; (2) In actions in which there are no pleadings, or in which the form of the pleadings is such that distinct issues are not joined between the parties, all facts from the establishment of which the ex- istence, nonexistence, nature, or extent of any right, liability, or disability asserted or denied in any such case would by law follow. A fact in issue is distinguished from a fact in contro- versy, in that the former must be a fact immediately found, according to the pleadings, while the latter is that on which the verdict is merely based. — Caperton v. Schmidt. 26 Cal. 479, 494; Glenn v. Savage, 14 Or. 567, 573, 13 P. 442, 446; Applegate v. Dowell, 15 Or. 513, 16 P. 651, 657. A fact or matter in issue is that upon which the plaintiff proceeds by his action, and which the defendant contro- verts in his pleadings. — Garwood v. Garwood, 29 Cal. 514, 521; Lillis v. Emigrant Ditch Co., 17 Nev. 337, 30 P. 1108, lTTO; Glenn v. Savage, 14 Or. 567, 13 P. 442, 446. DEFINITION OF TERMS 17 Texas. Facts in issue are those facts upon the truth or existence of which the right or liability to be ascertained in the proceeding depends. — San Antonio Traction Co. v. Higdon. (Tex. Civ. App.), 123 S. W. 732. The word "relevant" means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or nonexistence of the other. ["The modern system of evidence rests upon two axi- oms: 1. None but facts having rational probative value are admissible. 2. All facts having rational probative value are admissible, unless some specific rule forbids." — 1 Wigmore Ev., §§ 9, 10.] California. Upon a charge of abduction, that the girl pre- viously had been unchaste is irrelevant. — People v. De- mousset, 71 Cal. 611, 12 P. 788; People v. Dolan, 96 Cal. 315, 31 P. 107. Kansas. That a third person is beneficially interested in the proceeds of a note in suit is immaterial. — Stanley v. Penny, 75 Kan. 179, 88 P. 875. Nebraska. If the evidence relative to a material fact is conflicting any collateral fact or circumstance tending, in a reasonable degree, to establish the probability or Im- probability of the disputed fact is relevant and properly admitted, although it may not tend directly to prove any issue in the case. — Landifl & Schick v. Watts, 82 Neb. 359, 117 N. W. 705; Shepherd v. Lincoln Traction Co., 79 Neb. 834, 113 N. W. 627. Nevada. To ascertain whether evidence is relevant or not it is only necessary to determine whether it has a tendency to establish a legitimate case or defense relied on. — State v. Rhoades, 6 Nev. 352. Knowledge of the condition of a brush fence at the time of trial was not a fact from which the jury could infer 18 DEFINITION OF TERMS its condition 29 months before. — Ferraris v. Kyle, 19 Nev. 435, 14 P. 529. Texas. Evidence irrelevant to the avowed purpose for which it is offered is not admissible. — Leach v. Millard, 9 Tex. 551. The question being whether certain street lights shone on a place where plaintiff fell over an obstruction, the fact that they shone on the same place eighteen months after the accident is relevant. — Ware v. Shafer, (Tex. Civ. App.), 27 S. W. 764. As a general rule it is not the province of the court* to pass upon the sufficiency of evidence to prove a par- ticular issue. If testimony is offered which tends to prove such issue, it is admissible, and its sufficiency or proba- tive effect becomes a question for the jury to pass upon. —Hammond v. Hammond, 43 Tex. Civ. App. 284, 94 S. W. 1067. In an action for personal injuries, evidence that plain- tiff was prosecuting the suit on a pauper's affidavit and that his son-in-law had refused to go on his bond for costs, is irrelevant. — Hardin v. Ft. Worth & D. C. Ry. Co., 49 Tex. Civ. App. 184, 10S S. W. 490. Relevant testimony is that which directly touches upon the issue which the parties have made by their pleadings. — San Antonio Traction Co. v. Higdon, (Tex. Civ. App.), 123 S. W. 732. The meaning of "relevant," as applied to testimony, is that it directly touches upon the issues, though it be but a link in the chain of evidence. — San Antonio Traction Co. v. Higdon, (Tex. Civ. App.), 123 S. W. 732. To determine relevancy the pleadings must first be looked to to ascertain the issues. — San Antonio Traction Co. y. Higdon, (Tex. Civ. App.), 123 S. W. 732. Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis, a pertinent hypothesis being one which if sustained would logically influence the issue. Hence it is relevant to put in evidence any circum- stance which tends to make the proposition at issue more or less probable, and whatever is a condition either of the existence or nonexistence of a relevant hypothesis may be shown; but no circumstance is relevant which does not DEFINITION OF TERMS 19 make more or less probable tbe proposition at issue. — Belcber v. State, 71 Tex. Cr. R. 646, 161 S. W. 459; Lane v. State, 73 Tex. Cr. R. 266, 164 S. W. 378. NOTE I. (To Article 1.) The definitions are simply explanations of the senses in which the words defined are used in this work. They will be found, however, if read in connection with my "Introduction to the Indian Evidence Act," to explain the manner in which it is arranged. I use the word "presumption" in the sense of a presump- tion of law capable of being rebutted. A presumption of fact is simply an argument. A conclusive presumption I describe as conclusive proof. Hence the few presumptions of law which I have thought it necessary to notice are the only ones I have to deal with. In earlier editions of this work I gave the following definition of relevancy: "Facts, whether in issue or not, are relevant to each other when one is, or probably may be, or probably may have been — the cause of the other; the effect of the other; an effect of the same cause; a cause of the same effect; or when the one shows that the other must or cannot have occurred, or probably does or did exist, or not; or that any fact does or did exist, or not, which in the common course of events would either have caused or have been caused by the other; provided that such facts do not fall within the exclusive rules contained in Chapters III, IV, V, VI; or that they do fall within the exceptions to those rules contained in those chapters." This is taken (with some verbal alterations) from a pamphlet called "The Theory of Relevancy for the Purpose of Judicial Evidence, by George Clifford Whitworth, Bombay Civil Service. Bombay, 1875." The 7th section of the Indian Evidence Act is as follows: "Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant." The 11th section is as follows: "Facts not otherwise relevant are relevant; "(1) If they are inconsistent with any fact in Issue or relevant fact; 20 DEFINITION OP TERMS "(2) If by themselves, or in connection with other facts, they make the existence or nonexistence of any fact in issue, or relevant fact, highly probable or improbable." In my "Introduction to the Indian Evidence Act," I ex- amined at length the theory of judicial evidence, and tried to show that the theory of relevancy is only a particular case of the process of induction, and that it depends on the connection of events as cause and effect. This theory does not greatly differ from Bentham's, though he does not seem to me to have grasped it as distinctly as if he had lived to study Mr. Mill's Inductive Logic. My theory was expressed too widely in certain parts and not widely enough in others, and Mr. Whitworth's pamph- let appears to me to have corrected and completed it in a judicious manner. I accordingly embodied his definition of relevancy, with some variations and additions, in the text of the first edition. The necessity of limiting in some such way the terms erf the 11th section of the Indian Evidence Act may be inferred' from a judgment by Mr. Justice West (of the High Court of Bombay), in the case of R. v. Parbhudas and Others, printed in the "Law Journal," May 27, 1876. I have substituted the present definition for it, not because I think it is wrong, but because I think it gives rather the principle upon which the rule depends than a convenient practical rule. As to the coincidence of this theory with the English law I can only say that it will be found to supply a key which will explain all that is said on the subject of circumstantial evidence by the writers who have treated of that subject. Mr. Whitworth goes through the evidence given against the German, Muller, executed for murdering Mr. Briggs on the North London Railway, and shows how each item of it can be referred to one or the other of the heads of relevancy which he discusses. The theory of relevancy thus expressed would, I believe, suffice to solve every question which can arise upon the sub- ject, but the legal rules, based upon an unconscious appre- hension of the theory, exceed it at some points and fall short of it at others. FACTS IN ISSUE 21 CHAPTER II. OF FACTS IN ISSUE AND RELEVANT TO THE ISSUE. Article 2* facts in issue and facts relevant to the issue may be pboved. Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue, unless it is hereinafter declared to be deemed to be irrelevant, and of any fact hereinafter declared to be deemed to be relevant to the issue, whether it is or is not relevant thereto, (a) Provided that the judge may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the circumstances of the case. Illustrations. (a) A is indicted for the murder of B, and pleads not guilty. The following facts may be in issue: The fact that A killed B; the fact that at the time when A killed B he was prevented by disease from knowing right from wrong; the fact that A had received from B such provocation as would reduce his offense to manslaughter. — 1 * See Note at end of Article. 22 FACTS IN ISSUE The fact that A was at a distant place at the time of the murder would be relevant to the issue; the fact that A had a good character would be deemed to be relevant; the fact that C on his deathbed declared that C, and not A, murdered B, would be deemed not to be relevant. — 2 (b) [There being an issue as to whether a business was conducted by deceased for himself and in his own name, evi- dence showing that goods were sold to him in his own name, together with bills therefor, was admissible.] — 3 (c) [The question was, whether defendant bound himself to pay another's debt to plaintiff. The fact that plaintiff thereafter was trying to negotiate a settlement with the debtor is admissible.] — 4 (d) [The question was, whether a certain person was the owner of a shipment of cattle upon which a levy had been made. Evidence as to the persons paying the purchase price of the cattle is relevant.] — 5 (e) [The question was, whether deceased or defendant had been the aggressor during the day of the homicide, when it appeared that their conduct had been rough and irritating towards each other. Proof of bruises on the body of de- ceased, found upon exhumation soon after burial, is rele- vant.] — 6 (f) [The question was what the speed of an automobile was at the place of collision with a bicyclist. Testimony as to the speed at which it was going when 100 feet away, just prior to the accident, is relevant.] — 7 (g) [The question was, whether plaintiffs' ancestor ex- ecuted a certain deed. Whether he afterwards set up claim to the property, paid taxes or assessments, or did any other act asserting owner- ship, were relevant.] — 8 (a) [It is hard to perceive that any fact may be "deemed to be relevant," unless it has some logical tendency to prove another fact; but it is clear that facts may be "deemed to be irrelevant," as the expression is used in this and following articles, though, as a matter of fact, they are logically rele- vant, such as privileged communications and other matters excluded on the ground of policy.] 2 [The fact that A had a bad character would be deemed to be irrelevant. See Articles 56, 57.] 3 [Kelly v. Murphy, 70 Cal. 560, 12 P. 467.] 4 [Cross v. Kistler, 14 Colo. 571, 23 P. 903.] 5 [Paddock v. Sam Gosney Live Stock Com. Co., 48 Neb. 176, 66 N. W. 1121.] 6 [Billings v. State, 52 Ark. 303, 12 S. W. 574.] 7 [Olsen v. Levy, 8 Cal. App. 487, 97 P. 76.] 8 [Haight v. Vallet, 89 Cal. 245, 26 P. 897.] FACTS IN ISSUE 23 (h) [The question was, whether A committed a certain crime. Testimony as to footprints found in a cornfield, where it was alleged the crime occurred, was excluded, when it was not shown that the footprints were made by defend- ant, or corresponded with shoes worn by him, but merely that the footprints led in the direction of his home.] — 9 (i) [The question was, whether cattle of plaintiff were injured by rough handling of the railroad company. That other cattle in the same shipment were killed is admis- sible.]— 10 (j) [The question being whether a collision was severe enough to throw a brakeman some 25 feet from the rear platform into the car. That no other persons in the same coach were injured, and what effect the collision had on them are relevant.] — 11 (k) [The question was, whether a passenger was justified in going upon the platform of a train which was running down a grade at a claimed unusual rate of speed, with in- tention of jumping into sand at the side of the track, if nec- essary. Evidence as to the conduct of passengers remaining in the car, and whether any of them were injured is rele- vant.] — 12 RELEVANCY IN GENERAL. Evidence to prove collateral facts is irrelevant. — State v. Dunn, 53 Or. 304, 100 P. 258; Missouri, K. & T. Ry. Co. v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 601. Arkansas. In a prosecution for homicide evidence of a difficulty taking place at a picnic about two and a half years before, wherein defendant struck at deceased with a knife, was too remote to show malice. — Billings v. State, 52 Ark. 303, 12 S. W. 574. In a prosecution for attempt to kill by putting poison in liquor, where defendant denied she put any poison or compound in the beer or whiskey in question, testimony as to reputation as a "voodoo" doctor of a person who was alleged to have given certain magical tablets to de- fendant is inadmissible. — Emmons v. State, (Ark.), 160 S. W. 219. 9 [Kinnan v. State, 86 Neb. 234, 125 N. W. 594.] 10 [Ft. Worth & R. G. Ry. Co. v. Montgomery. (Tex. Olv. App.), 141 S. W. 813.] li [Guir. C. & s. P. Ry, <■■-. v. Dooley, (Tex. Civ. App). 131 S. W. 831.] 12 [Mitchell v. Southern Pac. Co., 87 Cal. 62, 25 P. 245.] 24 FACTS IN ISSUE California. Under the head of relevancy, the question is not as to the weight of the evidence, but whether.it tends at all to illustrate the issue. (Whether plaintiff in malic- ious prosecution threw a brickbat through a window at defendant who arrested her. That her husband had made threats against defendant erroneously excluded). — Lyon v. Hancock, 35 Cal. 376. Evidence of the pecuniary standing and ability of a person is competent on an issue as to whether he is in equity the owner of the land the title to which has been taken in his name. — Hobbs v. Duff, 43 Cal. 485. Evidence as to property pledged as collateral security for a note relevant in an action on the note. — First Nat. Bank v. Wolff, 79 Cal. 69, 21 P. 552. Where the subject of controversy arose over the break- ing of a wood dam through decayed timbers, evidence as to witness' familiarity with earth dams, and how such dams might break, is irrelevant. — Wiedekind v. Tuolumne County Water Co., 83 Cal. 198, 23 P. 311. A letter respecting a sale of land, sent by a vendor to his attorney, is inadmissible in an action to enforce a contract for a sale. — Niles v. Hancock, 140 Cal. 157, 73 P. 840. On charge of dynamiting a house, evidence as to obscene writings and letters of defendant, in no way relating to the crime is inadmissible.— People v. Martin, 13 Cal. App. 96, 108 P. 1034. Nor the fact that when arrested ten months after the crime she had in possession various poisons, none of which had any connection with the crime charged. —Id. Evidence will not be excluded because of its having lit- tle weight.— People v. Wong Chuey, 117 Cal. 624, 49 P. 833; People v. Cuff, 122 Cal. 589, 55 P. 407. The question whether or not deceased was an Anglo- Saxon is immaterial on a trial for his murder. — People v. Lopez, 21 Cal. App. 188, 131 P. 104. Colorado. In an action to cancel certain instruments al- leged to have been procured from plaintiff while under duress, testimony that immediately after the execution of the instruments plaintiff was confined to his bed because of a shock to his nervous system was admissible as tend- PACTS IN ISSUE 25 ing to show his mental condition immediately after the transaction.— McClelland v. Bullis, 34 Colo. 69, 81 P. 771. The question is, whether testator had been of sound mind and memory for several years prior to signing his will, and was not competent to care for or preserve his property. Letters written by him during that time are relevant.— Burnham v. Grant, 24 Colo. App. 131, 134 P. 254. Idaho. It is not error to admit evidence tending to estab- lish a material issue made by the pleadings. — Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 355. In an action to recover an alleged balance due on a promissory note, where plaintiff introduced a copy of an account as a statement of the account as it appeared on its books, showing a balance due as charged in the com- plaint, notes and receipts bearing on the correctness of the account and having some reference to a copy of the book account were admissible on the part of defendant. — Vollmer Clearwater Co. v. Rogers, 13 Idaho 564, 92 P. 579. Kansas. The defendant had sown and harvested the oats on land of which he had been in possession for several years. In replevin for certain shocks of oats, plaintiff could not introduce title papers to show that he was the owner of the land. — Caldwell v. Custard, 8 Kan. 303. It is not error for a trial court to refuse to admit proof of a fact which does not tend to prove or disprove any matter in controversy. — Neosho Valley Inv. Co. v. Han- nura, 63 Kan. 621, 66 P. 631. Nebraska. The competency of a collateral fact is not to be determined by the conclusiveness of the inference it may furnish with reference to a litigated fact, but by the proposition that, if it tends in a slight degree to eluci- date the inquiry or to reasonably assist in a determination probably founded on truth, it should be received. — Fitch v. Martin, 84 Neb. 745, 122 N. W. 50. Nevada. To ascertain whether evidence is relevant or not, it is only necessary to determine whether it has a tendency to establish a legitimate case or defense relied upon. — State v. Rhoades, 6 Nev. 352. New Mexico. Evidence of the defective condition of street car seven months prior by reason of which plain- 26 PACTS IN ISSUE tiff was injured not too remote. — Corcoran v. Albuquerque Traction Co., 15 N. M. 9, 103 P. 645. Oklahoma. Evidence offered by plaintiff wbich does not support any issue made by the pleadings should be ex- cluded. — Indian Land & Trust Co. v. Clement, 22 Okla. 40, 109 P. 1089. Oregon. On a trial for murder, the statement of a third person, alleged to have been made to his father a few hours after the murder, that he had come to see him (the father) for the last time, because he had killed de- ceased, is inadmissible. — State v. Fletcher, 24 Or. 295, 33 P. 575. Where it appeared that but two men besides the de- fendant lived at the same place and that both of them had retired before 12 o'clock, evidence that someone was seen to enter the house about that time was competent as tending to show when defendant reached home. — State v. McDaniel, 39 Or. 161, 65 P. 520. South Dakota. Photographs taken at points not material to the controversy are not admissible. — Whaley v. Vidal, 27 S. D. 642, 132 N. W. 248. Texas. A fact is admissible in evidence, though it would not prove the whole issue, but only lay the foundation for the introduction of other testimony pertinent to the issue. An order of a court to sell land may be proved as intro- ductory to the proof of an actual sale by virtue thereof. — Neill v. Keese, 5 Tex. 23. Any fact may be submitted to a jury, provided it can be established by competent means, and affords any fair inference or presumption as to the question in dispute. — Wells v. Fairbanks, 5 Tex. 582. The rule which requires the evidence to be strictly con- fined to the point at issue is not violated by evidence of facts which happened before and after the principal trans- action, yet which have a direct relation to the main sub- ject in controversy.— Horton v. Reynolds, 8 Tex. 284. To show domicile, a written application of defendant made, a few days before suit, for admission to a lodge, is admissible. — Robertson v. Ephraim, 18 Tex. 118. Evidence that a member of a banking firm, who is county treasurer, incorrectly keeps the county treasurer's books does not tend to prove that an employe of the FACTS IN ISSUE 27 firm incorrectly keeps its books. — Beeraan v. Jester, 62 Tex. 431. Where it appeared in evidence that the engineer of a train made no effort to stop it when he saw plaintiff on the track, 150 feet distant, his testimony that it would have been impossible for him to have stopped the train after he saw plaintiff is irrelevant. — Galveston, H. & S. A. Ry. Co. v. Duelm, 7 Tex. Civ. App. 669, 23 S. W. 596. A copy of a printed form of contracts usually made by defendant could be used in evidence in a suit for breach of contract, only when supplemented by proof that the contract in suit was upon a blank of that kind. — D. M. Osborne & Co. v. Ayers, (Tex. Civ. App.), 32 S. W. 73. Upon the question of the measure of damages sustained by widow and minor children for negligent killing of de- ceased, the fact that deceased was a member of the church and did not use profane language is too remote. — Lips- comb v. Houston & T. C. Ry. Co., 95 Tex. 5, 64 S. W. 923. Letters of a person not a party to the suit, sent to de- fendant, are inadmissible. — Taylor v. McFatter, (Tex. Civ. App.), 109 S. W. 395. Where the grade and quality of hay is in issue, testi- mony as to the grade and quality of other hay purchased from the same ricks is admissible. — Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S. W. 100. It is permissible to prove any fact that is relevant to the main fact, relevancy in such sense being determined by the fact that men would ordinarily infer the existence of the main fact from the existence of the other fact. — Dudley v. Strain, (Tex. Civ. App.), 130 S. W. 778. It is permissible to show in a murder trial the fact that after defendant had drawn his knife a bystander called upon deceased to run. that defendant would kill her. — Pettis v. State, 68 Tex. Cr. R. 221, 150 S. W. 794 . In a prosecution for incest, testimony of a witness that she had stopped visiting the home of defendant because she believed that one H. and defendant's wife were crim- inally intimate, is irrelevant, neither the wife nor H. being witnesses in the case. — Drake v. State, 68 Tex. Cr. R. 94, 151 S. W. 315. 28 FACTS IN ISSUE The meaning of the word "relevant," as applied to tes- timony, is that it directly touches upon the issue which the parties have made by their pleadings. — Wells Fargo & Co. Express v. Gentry, (Tex. Civ. App.), 154 S. W. 363. Utah. In a suit to recover for services in negotiating the sale of a mine, evidence that plaintiff's compensation in his regular employment was suspended during the nego- tiations is irrelevant. — Firman v. Bateman, 2 Utah 268. The fact that twenty-eight head of cattle other than defendant's of a herd of seventy were taken at the same time the cow, for the larceny of which defendant was arrested, was taken, and under the same conditions and circumstances, and in the same transaction, rendered the defendant's claim of mistake less probable, and tended to show guilty knowledge, and is admissible.- — State v. Gil- lies, 40 Utah 541, 123 P. 93. Washington. On a question of forgery of a note the fact that the maker had had criminal intercourse with the payee and her husband had discovered the relations and her testimony that the note had been given in remuner- ation, was relevant. — Crane v. Dexter, H. & Co., 5 Wash. 479, 32 P. 223. Action against personal representative on note of de- ceased, defense non-execution. Evidence of receipt by de- ceased several years prior of a large legacy irrelevant. — Taylor v. Gale, 14 Wash. 57, 44 P. 110. Where circumstantial evidence is relied on to connect a defendant with a crime, much must be left to the dis- cretion of the trial court in admitting it. It is not neces- sary that each circumstance, of itself, would to every per- son appear to connect the defendant with the offense. It is sufficient if such circumstance, considered in relation to other facts and circumstances in evidence, may fairly tend to such result.— People v. Glass, 158 Cal. 650, 112 P. 290; State v. Leroy, 61 Wash. 405, 112 P. 638. Wyoming. Evidence may be relevant and admissible though not sufficient in itself to establish the fact to which it relates. — Henderson v. Coleman, 19 Wyo. 183, 115 P. 439, 450. RELEVANCY OF PACTS 29 NOTE II. (To Article 2.) See 1 Ph. Ev., 493, etc.; Best, ss. Ill and 251; T. E., chap, ii, pt. ii. For instances of relevant evidence held to be insufficient for the purpose for which it was tendered on the ground of remoteness, see R. v. — , 2 C. and P., 459; and Mann v. Lang- ton, 3 A. and E., 699. Mr. Taylor (s. 867) adopts from Professor Greenleaf the statement that "the law excludes on public grounds evidence which is indecent or offensive to public morals, or injurious to the feelings of third persons." The authorities given for this are actions on wagers which the court refuesd to try, or in which they arrested judgment, because the wagers were in themselves impertinent and offensive, as, for instance, a wager as to the sex of the Chevalier D'Eon (Da Costa v. Jones, Cowp., 729). No action now lies upon a wager, and I fear that there is no authority for the proposition ad- vanced by Professor Greenleaf. I know of no case in which a fact in issue or relevant to an issue which the court is bound to try can be excluded merely because it would pain some one who is a stranger to the action. Indeed, in Da Costa v. Jones, Lord Mansfield said expressly, "Indecency of evidence is no objection to its being received where it is necessary to the decision of a civil or criminal right" (p. 734). (See article 129 and note xlvii.) Article 3. relevancy of facts forming part of the same transac- tion as the facts in issue. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong, or any- other subject of inquiry which may be in issue, (a) (a) [The illustrations and notes given under the first three paragraphs of this article show that this part of the article is intended to treat of acts and statements called forth by the happening of a main event, as a murder or accident, and narrative of it. The fact that the act or declaration pre- sented occurs contemporaneously with the transaction, or soon thereafter, does not, and cannot, make it a part of the transaction when, as in most cases, the transaction is com- pleted before such act is done or utterance made.] 30 RELEVANCY OF FACTS Every fact which is part of the same transac- tion as the facts in issue is deemed to be relevant to the facts in issue, (b) although it may not be actually in issue, and although if it were not part of the same transaction it might be excluded as hearsay, (c) Whether any particular fact is or is not part of the same transaction as the facts in issue is a question of law, upon which no principle has been stated by authority, and on which single judges have given different decisions. When a question as to the ownership of land depends on the application to it of a particular presumption capable of being rebutted, the fact that it does not apply to other neighboring pieces of land similarly situated is deemed to be relevant. (b) [It is only by a stretch of the imagination that the matters given as illustrative of the text of this paragraph can be considered as a part of the same transaction to which they are alleged to be attached. As a matter of fact the transaction is usually completed before the act or declara- tion sought to be admitted in evidence takes place. The text, therefore, is inaccurate when based upon the instances usually given. When a person who is stabbed states to the person who first arrives to his assistance, "I'm stabbed; I'm gone; Dan Hackett stabbed me," (Commonwealth v. Hackett, 2 Allen 136), it is apparent that the transaction was completed when the victim was stabbed and the assail- ant had fled.] (c) [It is the common fault of courts to speak of the spontaneous acts and exclamations evoked by the happening of a transaction as being a part of the "res gestae," or "things done." As pointed out by Wigmore (3 Ev. §§ 1795- 1797), and as can readily be perceived, this phrase is mis- placed when applied to the expressions given in the instances cited under this head, and if to be used at all should bd rather a catchword in the treatment of "verbal acts," which, with more correctness, may be considered a part of the tran- saction they accompany. (See infra, Article 8.) Therefore, the matters treated under the first three para- graphs of this article will be considered as under the head of "Spontaneous Exclamations," being an exception to the "Hearsay" rule.] RELEVANCY OF FACTS 31 Illustrations. (a) The question was. whether A murdered B by shooting him. The fact that a witness in the room with B, when he was shot saw a man with a gun in his hand pass a window opening into the room in which B was shot, and thereupon exclaimed, "There's butcher!" (a name by which A was known) was allowed to be proved by Lord Campbell, L. C. J.— 1. (b) The question was, whether A cut B's throat, or whether B cut it herself. A statement made by B when running out of the room in which her throat was cut, immediately after it had been cut, was not allowed to be proven by Cockburn, L. C. J. — 2. 1 R. v. Fowkes, Leicester Spring Assizes, 1856. Ex rela- tione O'Brien, Serjt. Since the last edition of this work was published I have referred to the report of this case in the "Times" for March 8, 1856, where the evidence of the wit- nesses on this point is thus given: "William Fowkes: 'My father got up the window, and opened it and shoved the shut- ter back. He waited there about three minutes. It was moon- light, the moon about the full. He closed the window, but not the shutter. My father was returning to the sofa when I heard a crash at the window. I turned to look and hooted, 'There's Butcher'. I saw his face at the window, but did not see him plain. He was standing still outside. I aren't able to tell who it was, not certainly. I could not tell his size. "While I was hooting, the gun went off. I hooted very loud. He was close to the shutter or thereabouts. It was only open about eight inches.' Lord Campbell: 'Did you see the face of the man?' Witness: 'Yes; it was moonlight at the time. I have a belief that it was the Butcher. I be- lieve it was. I now believe it from what I then saw. I heard the gun go off when he went away. We heard him run by the window through the garden towards the park.' " Upon cross-examination the witness said that he saw the face when he hooted, and heard the report at the same mo- ment. The report adds: "The statement of this witness was confirmed by Cooper, the policeman (who was in the room at the time), except that Cooper saw nothing when William Fowkes hooted. 'There's butcher at the window!' He stated he had not time to look before the gun went off. In this case the evidence as to W. Fowkes' statement could not be admissible on the ground that what he said was in the prisoner's presence, as the window was shut when he spoke. It is also obvious that the fact that he said at the time, 'There's butcher,' was far more likely to impress the jury than the fact that he thought it was not true that the person he saw was the butcher." 2 R. v. Bedingfield, Suffolk Assizes, 1879. The propriety of this decision was the subject of two pamphlets, one, by 32 RELEVANCY OF FACTS (c) The question was, whether A committed manslaughter on B by carelessly driving over him. A statement made by B as to the cause of his accident, as soon as he was picked up, was allowed to be proved by Park, J., Gurney, B., and Patteson, J., though it was not a dying declaration within article 26. — 3. (c a) [The question was as to the cause of death of a brakeman. Exclamations of the conductor to another brake- man a few seconds after the accident: "My God! Go back and see if you can find Leach. The bridge knocked him off," are admissible.] — 4. (c b) [The question is whether a boy riding upon the step of a street car was kicked off by the conductor. An exclamation, "The boy is off," made by someone, when the conductor, observing the boy riding upon the step, pulled the bell cord and started to open the door, was admis- sible.] — 5. (c c) [The question was whether a child was killed by the negligence of a railroad company at a crossing. State- ment made by the child's grandmother, immediately after the accident, that it was her fault, is admissible. ] — 6. (c d) [The question was, whether the broken leg of a horse was attributable to its getting caught in the lattices of a gate in its stall or it broke its leg while getting up and fell on the gate and broke it down in trying to get out of the stall. The statement of a night watchman at the stable, "I found that gate on top of the horse," in answer to a question made the next morning by the owner, was inadmissible.] — 7. (c e) [The question was, whether the door of an elevator shaft was left open by defendant's servants, or whether plaintiff opened it. Testimony that immediately after the accident witness heard groans or cries of pain down the shaft, and a little boy came running up to him from in front of the elevator door and said, "A man came up and pushed open the door and walked in." was relevant, as part of the res gestae.] — 8. W. Pitt Taylor, who denied, the other, by the Lord Chief Justice, who maintained it. 3 R. v. Poster, 6 .C. & P. 325. The judges (Park, J., Gur- ney, B., and Patteson, J.) who decided this case referred to Aveson v. Lord Kinnaird, 6 Ea. 193. 4 [Leach v. Oregon Short Line R. Co., 29 Utah 285, 81 P. 90.] 5 [Britton v. Washington Water Power Co., 59 Wash. 440, 110 P. 20.] 6 [Wheeler v. Oregon R. & Nav. Co., 16 Ida. 375, 102 P. 347.] 7 [Caldwell v. Nichol, 97 Ark. 420, 134 S. W. 622.] RELEVANCY OF FACTS 33 (d) The question is, whether A, the owner of one side of a river, owns the entire bed of it, or only half the bed, at a particular spot. The fact that he owns the entire bed a little lower down is deemed to be relevant. — 9. (e) The question is, whether a piece of land by the road- side belongs to the lord of the manor or to the owner of the adjacent land. The fact that the lord of the manor owned other parts of the slip of land by the side of the same road is deemed to be relevant. — 10. SPONTANEOUS EXCLAMATIONS. In General. "This general principle is based on the experience that, under certain experiences of physical shock, a stress of nervous excitement may be produced which stills the re- flective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when consider- ations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testi- mony as to those facts." — 3 Wigmore Ev., § 1747. Declarations, to be a part of res gestae, must be a spontaneous, unpremeditated explanation of the main fact. —City of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50; Pledger v. Chicago, B. & Q. R. Co., 69 Neb. 456, 95 N. W. 1057; City of Lexington v. Fleharty, 74 Neb. 626, 104 N. W. 1056; Leach v. Oregon Short Line R. Co., 29 Utah 285, 81 P. 90, 110 Am. St. Rep. 708. Colorado. Res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when narrating the events.— Graves v. People, 18 Colo. 170, 32 P. 63. 8 [Beal-DoyU- Dry Hoods Co. v. Cstrr, 86 Ark. 479, 108 S. W. 1053.] 9 Jones v. "Williams, 2 M. & W. 326. 10 Doe v. Kemp, 7 Bing. 382; 2 Bing. N. C. 102. 34 RELEVANCY OF FACTS Res gestae may be broadly defined as matter incidental to a main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of it, and without a knowledge of which the main fact might not be properly understood. The cir- cumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illus- trate its character. — Denver City Tramway Co. v. Brum- ley, 51 Colo. 251, 116 P. 1051. Nebraska. The term "res gestae" means things done in and about, and as a part of, the transaction out of which the litigation in hand grew and on which transaction said litigation is based.— Collins v. State, 46 Neb. 37, 64 N. W. 432; Phelps v. Bergers, 92 Neb. 851, 139 N. W. 632. Declarations, to be admissible as a part of the res gestae, must accompany and be so connected as to be a part of the fact or transaction in controversy and which tend to illustrate or explain it, such fact or transaction itself also being admissible in evidence. — Horst v. Lewis, 71 Neb. 365, 103 N. W. 460. Nevada.— Statement of prosecuting witness that she had been robbed, made immediately after the accident event, admissible. — State v. Ah Loi, 5 Nev. 101. Oklahoma. The question of admissibility of statements as part of the res gestae should, in a great measure, be left to the determination of the trial court.— Smith v. Chicago, R. I. & P. Ry. Co., 42 Okl. 577, 142 P. 398. South Dakota. Statements by plaintiff to her mother after her arrival home that she had hurt her foot by stepping into a hole in the sidewalk, and similar statements to her mother and a physician six months afterwards are in- admissible.— Fallon v. Rapid City, 17 S. D. 570, 97 N. W. 1009. Texas. Exclamation of a bystander immediately after the shooting that "Little Jack Kennedy shot him, and there he goes," not a part of res gestae. — Kennedy, ex parte, (Tex. Civ. App.), 57 S. W. 648. Statements made which are a part of the res gestae may be testified to by the person who made them. — Gulf, C. & S. F. Ry. Co. v. Hall, 34 Tex. Civ. App. 535, 80 S. W. 133. RELEVANCY OF FACTS 35 Statement by a locomotive engineer half an hour after he had run over and killed a man, and several miles from the point where it occurred, that "the damn fool made me mad because he would not get off the track," is inad- missible—International & G. N. R. Co. v. Munn, 46 Tex. Civ. App. 276, 102 S. W. 442. In order to be admissible as part of the res gestae it is not necessary that declarations be precisely concurrent in point of time with the principal transaction, but it should appear that they were evoked by the transaction and were without premeditation, that they sprang out of it, were voluntary and spontaneous, and made at a time so near as to preclude the idea of deliberate design. — Malone v. Texas & P. Ry. Co., 49 Tex. Civ. App. 398, 109 S. W. 430. The exclamations of a person libelled upon first hearing the article read are admissible as part of the res gestae. — Houston Chronicle Pub. Co. v. McDavid, (Tex. Civ. App.), 157 S. W. 224. Utah. The test of admissibility of a declaration as of the res gestae is whether it is the result of the trans- action talking through the declarant, or the declarant talking about the transaction. — Cromeenes v. San Pedro, L. A. & S. L. R. Co.. 37 Utah 475, 109 P. 10. Washington. The arrest of a defendant who ran into plaintiff and the fact that a bystander requested defend- ant to take plaintiff home in his automobile may be shown as res gestae.— Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876. Statements and Acts Admissible. Arkansas. Statements of a switchman, immediately after an accident, while he was under a car by which he had been knocked down, are admissible. — Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333, 3 S. W. 50. Declaration as to cause of accident made by one mor- tally wounded four or five minutes after the accident, admissible. — Kansas City Southern Ry. Co. v. Morris, 80 Ark. 528, 98 S. W. 363. Where plaintiff was injured by a jolt or shock of a car and exclaimed while alighting that he was "hurt, and hurt bad," this was in effect a description of his Injury 36 RELEVANCY OF FACTS or wound, and illustrative of the character and extent of his injury, and an undesigned incident of it. — St. Louis Southwestern Ry. Co. v. Jackson, 93 Ark. 119, 124 S. W. 241." California. Question, "Why didn't you tell me to stop?" addressed by engineer to fireman immediately after run- ning into plaintiff and in her presence, is admissible. — Zip- perlen v. Southern Pac. Co., 7 Cal. App. 206, 93 P. 1049. Colorado. Declarations of the conductor of a street car while assisting an injured woman to her feet, that it was not his fault, but that the motorman started too soon, are part of the res gestae. — Denver City Tramway Co. v. Brumley, 51 Colo. 251, 116 P. 1051. The statement of deceased made at the time he was discovered standing at a berth on a sleeping car, with his head between his hands, to the effect that the berth had fallen and struck him on the head is admissible. — Union Casualty & Surety Co. v. Mondy, 18 Colo. App. 395, 71 P. 677. Montana. On a trial for homicide, exclamations of by- standers on seeing accused returning to the place where he had had a difficulty with deceased, "There he comes with a gun," are admissible. — State v. Biggerstaff, 17 Mont. 510, 43 P. 709. Nebraska. Statements of woman fallen from car with both legs cut off, not more than two minutes after the accident, that the conductor had told her to get off at the next stop, admissible. — Missouri P. R. Co. v. Baier, 37 Neb. 235, 245, 55 N. W. 913. Where it becomes material to ascertain whether a woman was assaulted and the identity of the person who at- tacked her, evidence of her appearance at the time she was fleeing from her assailant and seeking shelter in a neighbor's house and her spontaneous declarations with regard to the transactions are admissible as part of the res gestae.— Sheibley v. Nelson, 84 Neb. 393, 121 N. W. 458. Nevada. Declarations made by a train agent in ejecting a passenger are admissible as part of the res gestae. — Forrester v. Southern Pac. Co., 36 Nev. 247, 134 P. 753. North Dakota. Statements of deceased while in the midst RELEVANCY OF FACTS 37 of intense suffering, to those who were trying to find means to give him relief, that it was caused by horse medicine which he had taken several hours before is rele- vant.— Puis v. Grand Lodge A. O. U. W., 13 N. D. 559, 102 N. W. 165. Oklahoma. Statement of deceased to witness who met him less than a minute after he had been shot and was walking fast from accused's house, that accused had treacherously shot him, admissible. — Price v. State, 1 Okl. Cr. 358, 98 P. 447. Oregon. Testimony as to what the master of a vessel said at the time or immediately after giving an order to his engineer to go full speed ahead is admissible in an action against a towboat company by which the vessel was being towed, for injuries to a bridge. — Multonomah County v. Willamette Towing Co., 49 Or. 204, 89 P. 389. Statement of an injured employee immediately after he was hurt is part of the res gestae. — Moulton v. St. Johns Lumber Co., 61 Or. 62, 120 P. 1057. Texas. Statements made at the time of an accident as to the defective condition of a pinch bar by which a servant was injured, admissible. — St. Louis Southwestern Ry. Co. of Texas v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 783. Plaintiff's statement, "I am hurt, my head is hurt," made five or six minutes after his injury as a passenger in a railroad collision, and while lying down next to the steps of the cars, admissible. — St. Louis Southwestern Ry. Co. of Texas v. Coats, (Tex. Civ. App.), 103 S. W. 662. Statement, on recovering consciousness, by one injured by negligence of railroad company, held relevant. — Paris & G. N. Ry. Co. v. Calvin, (Tex. Civ. App.), 103 S. W. 428. Statements made by a fireman fifteen or twenty seconds after being thrown out by a jar in coupling, admitted. — Galveston, H. & S. A. Ry. Co. v. Mitchell, 48 Tex. Civ. App. 381, 107 S. W. 374. Where the first person reaching one injured by a train did not arrive for some minutes after the accident during which time the injured person was suffering great pain and did not know hardly what he was doing, his state- ments made thereupon were admissible. — Missouri, K. & 38 RELEVANCY OP FACTS T. Ry. Co. of Texas v. Williams, 50 Tex. Civ. App. 134, 109 S. W. 1126; Blackshear v. Trinity & B. V. Ry. Co., (Tex. Civ. App.), 131 S. W. 854. Declarations of a person injured after he had become conscious thirty minutes after, admissible as res gestae. — Citizens' Ry. Co. v. Farley, (Tex. Civ. App.), 136 S. W. 94. When one who was stabbed was immediately taken across the street to a drug store, and exclaimed as it was found that his intestines were protruding, "That fellow took my life for nothing," such statement is a part of the res gestae.— Corbitt v. State, 72 Tex. Cr. R. 396, 163 S. W. 436. Washington. Evidence of plaintiff's acts and declara- tions at the time of the injury are admissible. — Piper v. City of Spokane, 22 Wash. 147, 60 P. 137. Declarations of the general superintendent of defendant examining the scene of a wreck three hours after it oc- curred, that if the company used any more such wheels he would not work for it, are admissible as res gestae. — Roberts v. Port Blakeley Mill Co., 30 Wash. 25, 70 P. 111. Statements made by a conductor as to the cause of an accident made two hours after its occurrence admissible, where he had been in the meantime away summoning as- sistance. — Walters v. Spokane International Ry. Co., 58 Wash. 293, 108 P. 593. Statements of a boy fallen from a car made immediate- ly on awakening to consciousness eight days after, that the conductor had kicked him off the car, are admissible. — Britton v. Washington Water Power Co., 59 Wash. 440, 110 P. 20. When something has occurred startling enough to pro- duce nervous excitement, spontaneous utterances of parties present are admissible as part of the res gestae. — Britton v. Washington Water Power Co., 59 Wash. 440, 110 P. 20. Exclamation by a captain of a vessel to some workmen doing repair work immediately after an accident to an- other workman caused by the carelessness of the former, admissible. — Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 P. 795. RELEVANCY OF FACTS 39 Statements and Acts Inadmissible. Statements, conversation and remarks made some time after an accident, inadmissible. — Silveira v. Iversen, 128 Cal. 187, 60 P. 687; Williams v. Southern Pac. Co., 133 Cal. 550, 65 P. 1100; Boone v. Oakland Transit Co., 139 Cal. 490, 73 P. 243; Luman v. Golden Ancient Channel Min. Co., 140 Cal. 700, 74 P. 307; Kimic v. San Jose-Los Gatos Interurban Ry. Co., 156 Cal. 379, 104 P. 986; Callahan v. Chicago, B. & Q. R. Co., 47 Mont. 401, 133 P. 687; Gebus v. Minneapolis, St. P. & S. S. M. Ry. Co., 22 N. D. 29, 132 N. W. 227; McCullough v. Oregon Short Line R. Co., 44 Utah 337, 140 P. 767; Gulf, T. & W. Ry. Co. v. Culver, (Tex. Civ. App.), 168 S. W. 514; Henry v. Seattle Electric Co., 55 Wash. 444, 104 P. 776. Arkansas. Statement of a brakeman bearing an injured child home, as to failure of engineer to keep lookout, in- admissible.— St. Louis, I. M. & S. Ry. Co. v. Kelley, 61 Ark. 52, 31 S. W. 884. California. Declarations made the following day after the crime not admissible as part of res gestae. — People v. Petruzo, 13 Cal. App. 569, 110 P. 324. Statements by plaintiff to a third person, in the absence of defendant, as to the cause of certain bruises on her arm, are no part of the res gestae. — Robinson v. Robin- son, 159 Cal. 203, 113 P. 155. Colorado. Statement made by engineer of train six months after the accident that there was a defective rail at the point of the accident, inadmissible. — Colorado Mid- land R. Co. v. McGarry, 41 Colo. 398, 92 P. 915. Declaration which is but a narrative of what occurred and not an incident of the event not admissible as res gestae.— Salas v. People, 51 Colo. 461, 118 P. 992. Kansas. Declarations made to persons arriving some three to five minutes after hearing cries, giving the name of the assailant, inadmissible. — State v. Pomeroy, 25 Kan. 349. A statement made after apparent delay, showing calcu- lation, and a reflective, thoughtful purpose to postpone the making of it until witnesses are present to attest the words spoken, removes the narrative into the category of a self-serving declaration, and renders it inadmissible. — 40 RELEVANCY OF FACTS Atchison, T. & S. F. Ry. Co. v. Logan, 65 Kan. 748, 70 P. 878. Statements by one having in his possession a bottle of wood alcohol, inviting a neighbor to drink, that the liquor was good and that he got it of a certain person, are not part of the res gestae of the transaction of pur- chasing the liquor, and are inadmissible in an action for negligence in selling the same. — Campbell v. Brown, 81 Kan. 480, 106 P. 37. Nebraska. A statement by defendant, or his servant, that he had served a certain mild drink to deceased, is inad- missible as a part of the res gestae, in an action for dam- ages for the wrongful killing of deceased by the sale to him of intoxicating liquors. — Young v. Beveridge, 81 Neb. 180, 115 N. W. 766. Oklahoma. Declarations of a party injured, made subse- quently to receiving the injuries, if wanting in spon- taniety and instinctiveness, are but the party talking about the facts and not the facts speaking through the party, and form no part of the res gestae. — Smith v. Chi- cago, R. I. & P. Ry. Co., 42 Okl. 577, 142 P. 398. Oregon. Statements made by an employee characteriz- ing his acts and constituting a part of them are com- petent against the employer, but not statements of a past transaction. (Statement of employee, operating a winch and derrick, made a few minutes after accident, that he could not hold the load and that the machinery was out of order, excluded.) — Fredenthal v. Brown & McCabe, 52 Or. 33, 95 P. 1114. Texas. In an action on account of fire set by defendant's employees, declarations made by them just after the fire was started, while it was still raging and one of the em- ployees was fighting to prevent its approach to a derrick were admissible; but statements as to the origin of the fire made by such employees several days thereafter in response to inquiries were no part of the res gestae.— Paraffine Oil Co. v. Berry, (Tex. Civ. App.), 93 S. W. 1089. Bystander's statement as to cause of ignition of oil escaping from an oil tank inadmissible. — Texas & N. O. R. Co. v. Bellar, 51 Tex. Civ. App. 154, 112 S. W. 323. Statements of another passenger as to the conduct of ACTS OF CONSPIRATORS 41 the conductor in insulting a fellow passenger made after the dispute was ended, inadmissible. — Texas & N. O. R. Co. v. Marshall, 57 Tex. Civ. App. 538, 122 S. W. 946. Testimony given at an inquest is not a part of the res gestae. — Texas Cent. R. Co. v. Dumas, (Tex. Civ. App.), 149 S. W. 543. Washington. Where deceased was found fallen from a car, and said that a loose step or hand-hold caused him to fall, statements of persons who thereafter inspected the car from which they presumed he had fallen were in- admissible as res gestae. — Riggs v. Northern Pac. Ry. Co., 60 Wash. 292, 111 P. 162. Article 4.* acts of conspirators. When two or more persons conspire together to commit any offense or actionable wrong, every- thing said, done, or written by any one of them in the execution or furtherance of their common purpose, is deemed to be so said, done, or written by every one, and is deemed to be a relevant fact as against each of them; but statements as to measures taken in the execution or furtherance of any such common purpose are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made. Evidence of acts or state- ments deemed to be relevant under this article may not be given until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of tne conspiracy to which they relate. * See Note at end of Article. 42 ACTS OF CONSPIRATORS Illustrations. (a) The question is, whether A and B conspired together to cause certain imported goods to be passed through the custom house on payment of too small an amount of duty. The fact that A made in a book a false entry, necessary to be made in that book in order to carry out the fraud, is deemed to be a relevant fact as against B. The fact that A made an entry on the counterfoil of his cheque book, showing that he had shared the proceeds of the fraud with B, is deemed not to be a relevant fact as against B. — 1 (b) The question is, whether A committed high treason by imagining the king's death; the overt act charged is that he presided over an organized political agitation calculated to produce a rebellion, and directed by a central committee through local committees. The facts that meetings were held, speeches delivered and papers circulated in different parts of the country, in a man- ner likely to produce rebellion by and by the direction of persons shown to have acted in concert with A, are deemed to be relevant facts as against A, though he was not present at those transactions, and took no part in them personally. An account given by one of the conspirators in a letter to a friend, of his own proceedings in the matter, not intended to further the common object, and not brought to A's notice, is deemed not to be relevant as against A. — 2 (c) [Prosecution for assault to kill. On proof that de- fendant and the wife of prosecuting witness had conspired to have illicit relations, evidence was admitted that the wife had, two days before the assault, tried to get her husband to go to defendant's office, and that 30 minutes after the shooting his wife, on hearing that he was not seriously in- jured, said, "If we had got you to his office the other evening we wouldn't have made any mistake."] — 3 DECLARATIONS OF CONSPIRATORS. In General. The declarations of one conspirator, the conspiracy be- ing established, made during the pendency of the crim- inal enterprise, with reference to the common object thereof, are competent against his co-conspirators, though defendant is absent. — People v. Sing Yow, 145 Cal. 1, 78 P. 235; Porter v. People, 31 Colo. 508, 74 P. 879; Van (1) R. v. Blake, 6 Q. B. 137-140. (2) R. v. Hardy, 24 S. T. passim, but see particularly 451-453. 3 [Burns v. State, 8 Okl. Cr. 554, 129 P. 657.] ACTS OF CONSPIRATORS 43 Wyk v. People, 45 Colo. 1, 99 P. 1009; State v. Corcoran, 7 Idaho 220, 61 P. 1034; State v. Winner, 17 Kan. 298; State v. De Wolfe, 29 Mont. 415, 74 P. 1084; O'Brien v. State, 69 Neb. 691, 96 N. W. 649; Territory v. Neatherlin, 13 N. M. 491, 85 P. 1044; Wells v. Territory, 14 Okl. 436, 78 P. 124; Hayes, ex parte, 6 Okl. Cr. 321, 118 P. 609; Sheppard v. Yocum, 10 Or. 402; State v. Ryan, 47 Or. 338, 82 P. 703; Brown v. Chenoworth, 51 Tex. 469; Wallace v. State, 48 Tex. Cr. R. 318, 87 S. W. 1041; Wilson v. State, (Tex. Cr. R.), 155 S. W. 242. Threats of another made several months before assault by defendant on prosecuting witness inadmissible, where no conspiracy is shown. — Bauer v. State, 3 Okl. Cr. 529, 107 P. 525; Milo v. State, 59 Tex. Cr. R. 196, 127 S. W. 1025. Arizona. Declarations after a shooting inadmissible. — Crowell v. State, 15 Ariz. 66, 136 P. 279. California. The existence of a conspiracy to rob being shown, knowledge of one that the victim had money must be imputed to the other. — People v. Stokes, 5 Cal. App. 205, 89 P. 997. Declarations of one conspiring with others to procure a will by the use of undue influence are admissible. — Strachan's Estate, In re, 166 Cal. 162, 135 P. 296. Declarations of woman as one of co-conspirators to pro- cure miscarriage of her own person are admissible against one accused of her death by illegal operation. — Solander v. People, 2 Colo. 48, 63. Kansas. Where there is evidence of a conspiracy to com- mit a crime, and of its subsequent commission, the state may, and in support and corroboration thereof, show any act or conduct of the alleged conspirators intermediate the conspiracy and the crime, which apparently recognizes the existence of the conspiracy, reasonably indicates preparation to commit the crime or preserve its fruits; and this, notwithstanding such special act of preparation was not the one discussed or agreed upon by the con- spirators, and is rendered actually fruitless and unavail- ing by the unexpected interference of third parties, and also involves the commission of another and distinct crime. — State v. Adams, 20 Kan. 320. 44 ACTS OF CONSPIRATORS Montana. Declarations of a co-conspirator to a witness, that the witness could steal horses enough to pay for a certain ranch and that defendant would handle them, were inadmissible against defendant where they were made before any conspiracy so to do was actually formed, though subsequently such an arrangement was made, de- fendant being included.— State v. Allen, 34 Mont. 403, 87 P. 177. North Dakota. The principle upon which the declara- tions of a co-conspirator not on trial are sometimes ad- missible in evidence against the conspirator who is on trial is that by the act of conspiring together the parties doing so have assumed as a body the attribute of in- dividuality as relates to the prosecution of the common design or purpose; hence what is done or said by any one in furtherance of that design is the act of all. Evidence of such statements is also admissible on the ground of agency.— State v. Moeller, 20 N. D.. 114, 126 N. W. 568. Oklahoma. It does not matter whether defendant was present or had knowledge of the words spoken or acts done.— Walker v. State, (Okl. Cr.), 127 P. 895. South Dakota. Where an agreement to commit larceny is entered into, all that occurred at the commission of the crime is admissible, though defendant is not present. — State v. Cline, 27 S. D. 573, 132 N. W. 160. Texas. Movements of alleged conspirators before a homi- cide and during the morning of the homicide, both before and immediately after its commission, may be shown. — Jenkins v. State, 45 Tex. Cr. R. 173, 75 S. W. 312. It being shown by other testimony that two persons were acting together in assault, testimony that one came up and began to curse and swear at the injured party, and threw chunks and sticks, is admissible as against the other.— Whittle v. State, (Tex. Cr. R.), 95 S. W. 1084. Purchase of ammunition by one of conspirators, shown.— Dobbs v. State, 54 Tex. Cr. R. 579, 113 S. W. 921. Where defendant and his father participated in a dif- ficulty with prosecutor, but no evidence of a conspiracy so to do was shown, the fact that the father thereafter tried to induce a witness to commit perjury is inadmis- sible against defendant. — Day v. State, 62 Tex. Cr. R. 413, 138 S. W. 127. ACTS OF CONSPIRATORS 45 What is said and done by any of the conspirators, pend- ing the conspiracy and in furtherance of the common de- sign is admissible against the one on trial, though said and done in his absence. — Serrato v. State, "74 Tex. Cr. R. 413, 171 S. W. 1133. If the crime committed is not in any way connected with the common purpose and design of the conspirators, but is an independent act of one of the parties, although he did it while engaged in the design, the others would not be legally responsible for such independent act; but if the crime was in furtherance of the common purpose and design, and the facts show that it was such an offense as might have been and should have been contemplated by the parties would be the result of the execution of the common design, and it was so executed, then all engaged in the unlawful purpose are equally guilty of the offense, although they, at the time, may have been engaged in some other part of the common purpose and design. — Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1133. Utah. When a witness has been engaged as a detective, it is not proper to put in evidence his statement to others as those of a co-conspirator and plotter with the defend- ants, made in furtherance of such plot or design. — State v. Kilburn, 16 Utah 187, 52 P. 277. Washington. Where there was evidence of a conspiracy to control the price of milk in a city, letters written by one within a few days after the agreement, and in fur- therance of the conspiracy were admissible. — State v. Erickson, 54 Wash. 472, 103 P. 796. Where there was evidence of a conspiracy between de- fendant and another to defraud by the sale of worthless mining stock, the co-conspirator acting as a trance medium, it is permissible for the prosecution to put in evidence two photographs of the latter one showing him in Oriental costume with the writing, " 'The great' wait- ing for a 'sod-buster' with sufficient sheckels to make it interesting," and the other showing the words, " 'The great' at work on a sucker." — State v. Craddick, 61 Wash. 425, 112 P. 491. If a conspiracy is in fact formed when a defendant actively participates in it, he adopts the previous acta and declarations of his fellow conspirators, and their 46 ACTS OF CONSPIRATORS declarations, although made before defendant joins the lawless association, are admissible in his trial. — State v. Caseday, 58 Wash. 429, 115 P. 287. Every act done in furtherance of the common purpose, whether before or after the property stolen was asported, is admissible.— State v. Pettit, 77 Wash. 67, 137 P. 335. After Completion of Main Act. After the purpose of a conspiracy has been accom- plished, and the joint enterprise completed, acts, declara- tions, conduct or appearance of one of the co-conspirators is not admissible as against the other. — Benton v. State, 78 Ark. 284, 94 S. W. 688; Barkly v. Copeland, 80 Cal. 483, 25 P. 405; People v. Aleck, 61 Cal. 137; People v. Opie, 123 Cal. 294, 55 P. 989; State v. Wells, 33 Mont. 291, 83 P. 476; Stratton v. Oldfield, 41 Neb. 702, 60 N. W. 82; State v. Tice, 30 Or. 457, 48 P. 367; State v. Aiken, 41 Or. 294, 69 P. 683; Mcllvaine v. First Nat. Bank, 33 S. D. 389, 146 N. W. 574; Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1093. Admissions of one taking part in a conspiracy are in- admissible after the consummation thereof, except as to the one making such admission. — State v. Merchants' Bank, 81 Neb. 704, 116 N. W. 667; Burns v. State, 8 Okl. Cr. 554, 129 P. 657; Ball v. Danton, 64 Or. 184, 129 P. 1032. After the unlawful agreement ends, evidence of declara- tions thereafter made by either of the parties, is inad- missible except where such act or declaration relates to a subsisting interest in property fraudulently acquired pursuant to the conspiracy. — State v. Stevenson, 26 Mont. 332, 67 P. 1001; State v. Smith, 55 Or. 408, 106 P. 797. A conspiracy to steal and sell hogs, or other property, for the benefit of all engaged in the illegal enterprise is pending until the sale has been made and proceeds divided.— People v. Opie, 123 Cal. 294, 55 P. 989; O'Brien v. State, 69 Neb. 691, 96 N. W. 649; Small v. State, (Tex. Cr. R), 40 S. W. 790. Arkansas. After a conspiracy to kill has terminated by the killing, it is not competent as against defendant to show by a witness that he had stamped out imprints at ACTS OF CONSPIRATORS 47 the direction of a conspirator. — Routt v. State, 107 Ark. 634, 155 S. W. 513. California. Declaration of a co-conspirator, made while shooting was going on, and he had fled to a place of safety, that, "I knew he (deceased) was going to get it," is inadmissible against his fellow conspirator, as such declaration was not in aid or execution of the conspiracy or in furtherance of its objects. — People v. Smith, 151 Cal. 619, 91 P. 511. Colorado. Acts and declarations, and flight of a co-con- spirator, after the transaction, inadmissible. — Smith v. People, 38 Colo. 509, 88 P. 453. Idaho. Where a conspiracy existed between defendant and his wife for the purpose generally of procuring girls to have sexual intercourse with defendant, a statement or declaration made by the wife subsequent to the com- mission of a specific act, and during the existence of the common design, is admissible. — State v. Hammock, 18 Idaho 620, 110 P. 169. Nevada. The declaration of a co-conspirator that the other was a "big boob, or he never would have been caught," was inadmissible against the other, when made after the parties charged were under arrest and the con- spiracy was at an end. — State v. Smith, 33 Nev. 438, 117 P. 19. The declaration of a co-conspirator with one charged with larceny of gold amalgam that he had made thou- sands and thousands of dollars for defendant was inad- missible, where it did not appear that declarant was not referring to legitimate transactions. — State v. Smith, 33 Nev. 438, 117 P. 19. Oregon. Notwithstanding a conspiracy to commit mur- der has terminated, evidence of the appearance of one of the conspirators soon after the homicide and probably before he had opportunity to change his apparel, is ad- missible against the other. — State v. Aiken, 41 Or. 294, 69 P. 683. Acts and statements of a co-conspirator while attempt- ing to sell the stolen meat are admissible. — State v. Gar- rett, 71 Or. 298, 141 P. 1123. Texas. A conspiracy to steal corn being in evidence, a statement by an alleged accomplice, when the sheriff and 48 ACTS OF CONSPIRATORS another were hunting for the corn, that "they had to go and move the corn, and if ever you tell it, we will have to kill the one that tells," is admissible. — Barber v. State, (Tex. Cr. R.), 69 S. W. 515. The state can prove the possession of the fruits of a crime by any of the parties, even after the conspiracy has terminated.— Bink v. State, 48 Tex. Cr. R. 598, 89 S. W. 1075. Where evidence connected two with conspiracy to cut a fence, testimony that after the act was completed one of the conspirators was seen to throw away a pair of wire nippers was admissible on the trial of the other. — Hender- son v. State, 50 Tex. Cr. R. 266, 96 S. W. 37. Where it was part of a conspiracy to murder that, after the killing, a co-conspirator should return to the body and place a knife there, so as to show that what defendant did was done in self-defense, it would be in the nature of concealing the crime, and the acts and declarations of the co-conspirator while so engaged would be admissible.— Eggleston v. State, 59 Tex. Cr. R. 542, 128 S. W. 1105. The state may prove the finding of a bank book in the house where defendant and co-conspirators were living, showing the deposit of a large amount of money by one of such conspirators shortly after the robbery of the bank in question. — Bowen v. State, 60 Tex. Cr. R. 595, 133 S. W. 256. A conspiracy being shown between defendant and his brother, evidence is admissible that a few days before the killing defendant's brother, upon being asked what the trouble was between defendant and deceased, replied, "It ain't going to leak out from us; it may leak out after a while, but it will never come from us." — Cameron v. State, 69 Tex. Cr. R. 439, 153 S. W. 867. Acts and declarations of one conspirator in furtherance of the common design are admissible against another con- spirator pending the conspiracy and until its final termi- nation. This proposition includes anything that was in the contemplation of the conspiracy, such as dividing the spoils, or any of those matters that may be subsequent to, but included in the scope of the conspiracy. — Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1133. ACTS OF CONSPIRATORS 49 Utah. Statements after the object of the conspiracy is accomplished are inadmissible in the absence of the other conspirator.— State v. Gillies, 40 Utah 541, 123 P. 93. Washington. Where there was evidence not only of a conspiracy to commit a crime but also to fabricate a de- fense, a letter written by one of the defendants while they were in jail before the trial, tending to fabricate a de- fense, was admissible against the others. — State v. Dilley, 44 Wash. 207, 87 P. 133. Narrative By Co-conspirator. Narratives by a co-conspirator of events concerning an accomplished crime are not admissible against a defend- ant on trial, unless made in his presence. — People v. Dresser, 117 Cal. App. 688, 117 P. 688; State v. Beebe, 66 Wash. 463, 118 P. 920; State v. Nist, 66 Wash. 55, 118 P. 920. Declarations of one conspirator are admissible as against the others in pursuance of the common object, and not a narrative of past transactions.— Harrington v. Butte & B. Min. Co., 19 Mont. 411, 48 P. 758; Farley v. Peebles, 50 Neb. 723, 70 N. W. 231; Lockhart v. Washing- ton Gold & Silver Mining Co., 16 N. M. 223, 117 P. 833; Muller v. Flavin, 13 S. D. 595, 83 N. W. 687; Hughes v. Waples-Platter Grocer Co., 25 Tex. Civ. App. 212, 60 S. W. 981. Evidence of Fact of Conspiracy. Declarations of alleged conspirators are not admissible to prove the fact of conspiracy. — State v. Merchants' Bank, M Neb. 704, 116 N. W. 667; Osmun v. Winters. 30 Or. 177, 46 P. 780. Proof of acts and declarations of conspirators compe- tent to establish conspiracy. — State v. Ryan. 47 Or. 338, 82 IV 70S. The order of proof is within the discretion of (he trial court, and it is not essential that proof of the existence of a conspiracy be first made, in order that evidence may be received of acts of one associated with the accused in the common design.— Easter v. State, 96 Ark. 629, 132 S. W. 924; Joyce v. State. SS Neb. 599, 130 \. \\\ 291; State v. Caseday, 5S Or. 429. 115 P. 287. Arkansas. All that is necessary to render declarations of a co-conspirator admissible is for the state to make a 50 ACTS OF CONSPIRATORS prima facie showing of the existence of such conspiracy at the time the alleged statements were made. — Cumnock v. State, 87 Ark. 34, 112 S. W. 147; Easter v. State, 96 Ark. 629, 132 S. W. 924. California. Testimony of the acts and declarations of an alleged conspirator before proof of the conspiracy is made is permissible. — People v. Carson, 155 Cal. 164, 99 P. 970. Oklahoma. Slight evidence that persons were acting to- gether or concerned in the offense charged is all that is required, in order to admit the declarations of one as evidence against the other. — Sturgis v. State, 2 Okl. Cr. 362, 102 P. 57. Slight evidence of collusion is all the law requires to admit the acts and declarations of a conspirator in evi- dence against his co-conspirator. — Hayes, ex parte, 6 Okl. Cr. 321, 118 P. 609. Texas. It is not necessary that a conspiracy must be first established before evidence of the acts or declarations of co-conspirators made in the absence of defendant could be introduced against him, but such evidence may be in- troduced in the first instance, the prosecution undertaking to show a conspiracy, the evidence being excluded if no conspiracy is shown. — Bowen v. State, 47 Tex. Cr. R. 137, 82 S. W. 520. Evidence of a conspiracy is necessary in order to admit acts or declarations of an alleged conspirator. — Ripley v. State, (Tex. Cr. R.), 100 S. W. 943. A conspiracy can be proved by circumstances, as well as by positive evidence. — Ripley v. State, (Tex. Cr. R.), 100 S. W. 943. The better practice is to first establish a conspiracy before permitting the declarations of the conspirators in the absence of each other to be admissible; but if the conspiracy be proved subsequently, it is immaterial that the declarations were admitted first. — Proctor v. State, 54 Tex. Cr. R. 254, 112 S. W. 770. Utah. A conspiracy may not be established by the acts and declarations of only one of the alleged conspirators. —State v. Inlow, 44 Utah 485, 141 P. 530. Washington. The court must determine in the first in- stance whether there is sufficient prima facie evidence of a conspiracy to justify the submission to the jury of the TITLE 51 acts and declarations of an alleged conspirator as evidence against his fellows.— State v. Dilley, 44 Wash. 207, 87 P. 133. Whether proof of conspiracy shall be first made is in the discretion of court. — State v. Wappenstein, 67 Wash. 502, 121 P. 989. NOTE III. (To Article 4.) On this subject see also 1 Ph. Ev. 157-164; T. E. ss. 527- 532; Best, s. 508; 3 Russ. on Crimes, by Greaves, 161-167. (See, too, The Queen's Case, 2 Br. & Bing. 809-310.) [2 Wig- more Ev., § 1079.] The principle is substantially the same as that of prin- cipal and accessory, or principal and agent. When various persons conspire to commit an offense each makes the rest his agents to carry the plan into execution. (See, too, Arti- cle 17, Note XII.) Article 5.* TITLE. When the existence of any right of property, or of any right over property is in question, every fact which constitutes the title of the person claiming the right, or which shows that he or any person through whom he claims was in pos- session of the property, and every fact which con- stitutes an exercise of the right, or which shows that its exercise was disputed, or which is in- consistent with its existence or renders its ex- istence improbable, is deemed to be relevant, (a) (a) [For declarations of persons in possession of property as verbal acts, see infra. Article 8. For evidence of reputation to prove boundaries, etc., see infra, Article 30.] * See Note at end of Article. 52 TITLE Illustrations. (a) The question is, whether A has a right of fishery in a river. An ancient inquisitio post mortem finding the existence of a right of fishery in A's ancestors, licenses to fish granted by his ancestors, and the fact that the licensees fished under them, are deemed to be relevant. — 1 (b) The question is, whether A owns land. The fact that A's ancestors granted leases of it is deemed to be relevant. — 2 (c) The question is, whether there is a public right of way over A's land. The facts that persons were in the habit of using the way, that they were turned back, that the road was stopped up, that the road was repaired at the public expense, and A's title deeds showing that for a length of time, reaching be- yond the time when the road was said to have been used, no one had power to dedicate it to the public, are all deemed to be relevant. — 3 California. In an action against a sheriff for carrying away plaintiff's property as another's, plaintiff may intro- duce evidence showing acts of ownership on his part, tending to prove his possession of the property. — Fitch v. Brockmon, 3 Cal. 348. Declarations made by an owner of property who had parted with title by the execution of a deed which was not placed on record, made at the time of and subse- quent to the execution of another instrument, as to the character of the subsequent instrument, whether deed or mortgage, are admissible. — Bell v. Pleasant, 145 Cal. 410, 78 P. 957. Nebraska. The question being whether stock attached belonged to plaintiff or the one in whose name they were shipped, the fact that plaintiff furnished the money with which the stock were paid for before shipment is admis- sible.— Paddock v. Sam Gosney Live Stock Commission Co., 48 Neb. 176, 66 N. W. 1121. 1 Rogers v. Allen, 1 Camp. 309. 2 Doe v. Pulman, 3 Q. B. 622, 623, 626 (citing Duke of Bed- ford v. Lopes). The document produced to show the lease was a counterpart signed by the lessee. See post, Article 64. 3 Common practice. As to the title deeds, Brough v. Lord Scarsdale, Derby Summer Assizes, 1865. TITLE 53 Texas. Acts of ownership are competent to show the actor's claim of title under a conveyance whose execu- tion is in issue.— Rankin v. Busby, (Tex. Civ. App.), 25 S. W. 678. Field notes reciting that the survey was made at a cer- tain person's request are competent on the issue of such person's ownership of the land surveyed. — Rankin v. Busby, (Tex. Civ. App.), 25 S. W. 678. On an issue as to the ownership of a stock of merchan- dise, a check executed by plaintiff to the former owner, reciting that it was "in full for stock of goods," is admis- sible.— Kean v. Zundelowitz, 9 Tex. Civ. App. 350, 29 S. W. 930. The fact that a certain grantor of defendant had been claiming the land in controversy is admissible. — Rice v. Melott, 32 Tex. Civ. App. 426, 74 S. W. 935. NOTE IV. (To Article 5.) The principle is fully explained and illustrated in Mal- colmson v. O'Dea, 10 H. L. C. 593. See particularly the re- ply to the questions put by the House of Lords to the Judges, delivered by Willes, J., 611-622. See also 1 Ph. Ev. 234-239; T. E. ss. 593-601; Best, s. 499. Mr. Phillips and Mr. Taylor treat this principle as an ex- ception to the rule excluding hearsay. They regard the state- ments contained in the title deeds as written statements made by persons not called as witnesses. I think the deeds must be regarded as constituting the transactions which they effect; and in the case supposed in the text those transac- tions are actually in issue. When it is asserted that land belongs to A, what is meant is, that A is entitled to it by a series of transactions of which his title deeds are by law the exclusive evidence (see Article 40). The existence of the deeds is thus the very fact which is to be proved. Mr. Best treats the case as one of "derivative evidence," an expression which does not appear to me felicitous. 54 CUSTOMS Article 6. When the existence of any custom is in ques- tion, every fact is deemed to be relevant which shows how, in particular instances, the custom was understood and acted upon by the parties then interested. [Where the doing of an act by a person is in issue, evidence of habit, custom or usage is rele- vant to show whether or not he did the act in question.] (a) Illustrations. (a) The question is, whether, by the custom of borough- English, as prevailing in the manor of C, A is heir to B. The fact that other persons, being tenants of the manor, inherited from ancestors standing in the same or similar re- lations to them as that in which A stood to B, is deemed to be relevant. — 1 (b) The question was, whether, by the custom of the country, a tenant-farmer, not prohibited by his lease from so doing, might pick and sell surface flints, minerals being reserved by his lease. The fact that, under similar provi- sions in neighboring farms, flints were taken and sold, is deemed to be relevant. — 2 RELEVANCY OF CUSTOM OR HABIT. Colorado. Custom of water consumers in a district to- di- vide the year into a season of direct irrigation, from April 15 to September 15, and a season of storage, from Sep- tember 15 to April 15, being contrary to statute, binds neither water officials nor consumers in other districts of the same division, so as to prevent the latter from obtain- ing water for direct irrigation when needed. — Comstock (a) [See 1 Wigmore Ev., §§ 92-99.] 1 Muggleton v. Barnett, 1 H. & N. 282. For a late case of evidence of a custom of trade, see Ex parte Powell, in re Matthews, L. R. 1 Ch. D. 501. 2 Tucker v. Linger, 21 Ch. D. 18; and see Article 10. CUSTOMS 55 v. Larimer & Weld Reservoir Co., 58 Colo. 186, 145 P. 700. Kansas. Testimony of those in the ice business as to the percentage of loss by melting, etc., of ice when properly handled and managed, is competent for the purpose of determining what amount of ice was originally in an ice house. — Sexton v. Lamb, 27 Kan. 429. Habit of carefully approaching a railroad crossing admis- sible to show care on occasion of accident. — Missouri Pac. R. Co. v. Moffatt, 60 Kan. 113, 55 P. 837. Montana. Evidence of deceased having made a practice of jumping on a train while in motion affords no infer- ence that he did so on the day he was killed. — Mulville v. Ins. Co., 19 Mont. 95, 47 P. 650. Nebraska. Action for injuries to child by stepping into hot ashes. Continual deposit of ashes in same place was allowed to be shown. — Lincoln V. P. & B. Co. v. Buckner, 39 Neb. 742, 57 N. W. 749. To show that a judgment was properly indexed on the day of filing transcript, the uniform custom of the clerk was received. — Gate City Abstract Co. v. Post, 55 Neb. 742, 76 N. W. 471. North Dakota. Evidence of custom at a certain place relative to receiving grain at elevators and accounting therefor by issuance of tickets, is relevant to explain and account for the fact that tickets were not issued, nor demanded by plaintiff, for each load of grain when de- livered. — Cochrane v. National Elevator Co., 20 N. D. 169, 127 N. W. 725. South Dakota. Deposit of telegraph message in office of operator raises a presumption that it was received by the addressee. — Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942. Texas. Custom of other railroads in making flying switphes inadmissible to prove manner of making the fly- ing switch in question. — Weatherford M. W. & N. Co. v. Duncan, 88 Tex. 611, 32 S. W. 878. Duties of brakeman on other roads not admissible to show duties on a particular road. — McCray v. Galveston, H. & S. A. Ry. Co., 89 Tex. 168, 34 S. W. 95. In an action for damages on account of delay in trans- porting cattle to a destination in time for the early Mon- 56 CUSTOMS day morning market, evidence is admissible showing that the market was generally better early in the morning than later in the day. — Texas & P. Ry. Co. v. Slaughter, 37 Tex. Civ. App. 624, 84 S. W. 1085. In a suit between a factor and his principals, where evidence was admitted going fully into the dealing of the principals with the factor, evidence to prove their custom in dealing with agents in other states was inadmissible. — Couturie v. Roensch, (Tex. Civ. App.), 134 S. W. 413. Utah. A usage or custom cannot be given in evidence to relieve a party from his express agreement, or to change a contract certain in its terms, yet it may aid in interpret- ing the intentions of the parties to a contract, the real character of which is to be ascertained, not alone from express stipulations, but also from general implications and presumptions arising from the nature and character of the employment.- — Anderson v. Daly Mining Co., 16 Utah 28, 50 P. 815. Proof of mailing a notice raises a presumption, from the usual course of business through the mails, that the notice was received. — Brown v. Fraternal A. Assoc, 18 Utah 265, 55 P. 63. EVIDENCE TO PROVE CUSTOM OR HABIT. Arkansas. Testimony of one whom plaintiff succeeded as sales manager that he had been employed by the year and had worked for defendant for seven years, is relevant as tending to show the custom of the company in the em- ployment of persons to fill that position. — Arkadelphia Lumber Co. v. Asman, 85 Ark. 568, 107 S. W. 1171. California. Proof of specific acts of intoxication is not evidence of a habit. — Cosgrove v. Pitman, 103 Cal. 268, 273, 37 P. 232. Colorado. Judicial notice cannot be taken of the usages and customs of mining districts. — Sullivan v. Hense, 2 Colo. 424, 433. The rule or custom of a mining district as to the length of claims located in the district may be proved by the record of such claims. — Sullivan v. Hense, 2 Colo. 424. Evidence that dealers in like goods had been accus- tomed to pay ten per cent, commission to hackdrivers bringing them tourist business, is insufficient to establish MOTIVE, PREPARATION, ETC. 57 a custom to pay such commission on a sale of approxi- mately $4,500, where such other sales had always been for comparatively small amounts. — Heistand v. Bateman, 41 Colo. 20, 91 P. 1111. Texas. Evidence of authority of certain servants of other railroads is inadmissible to show that a certain serv- ant of defendant had a certain authority. — Texas & P. R. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058. A custom or usage of trade can be established by specific instances, provided they are sufficiently numer- ous to indicate a fairly regular course of business, where they occur under similar circumstances. — Broussard v. South Texas Rice Co., (Tex. Civ. App.), 120 S. W. 587. Custom must be shown by direct testimony and not by opinion or reputation. — Standard Paint Co. v. San An- tonio Hardware Co., (Tex. Civ. App.), 136 S. W. 1150. Article 7. motive, preparation, sursequent conduct, explanatory statements, etc. When there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say — any fact which supplies a motive (a) for such an act, or which constitutes preparation for it, (b) [or discloses an intention or design]. any subsequent conduct of such person appar- ently influenced by the doing of the act, and any act done in consequence of it by or by the author- ity of that person, (c) a Illustrations (a), r(ab), (ac), (ad), (ae), (af) ;md (ag),] b Illustration (b). c Illustrations (c), (d) and (e). [Defendant not compellable to testify against himself, see infra. Article 120.] 58 MOTIVE, PREPARATION, ETC. Illustrations. (a) The question is, whether A murdered B. The facts that, at the instigation of A, B murdered C twenty-five years before B's murder, and that A at or before that time used expressions showing malice against C, are deemed to be relevant as showing a motive on A's part to murder B. — 1 (a b) [The question is, whether A burned a certain building. The fact that A had excessive insurance upon the build- ing is relevant, as showing that A had a motive to destroy it.]— 2. (a c) [The question is, whether defendant affixed his sig- nature to a certain note. Evidence tending to show that the note was given in re- newal of another note signed by defendant with others is relevant to show motive.] — 3 (a d) [The question is, whether A or another shot deceased in a fight. Evidence that A and deceased had recently been opposing candidates for office at an election, wherein deceased won, is relevant on the question of motive.] — 4 (a e) [The question is, whether A procured the murder of his wife. The fear that his wife was about to become cognizant of the fact that 20 years before he had made way with a for- mer wife and absconded from a distant state, is relevant on the issue of motive to conspire to secure her death.] — 5 (a f) [The question is, whether A committed incest. Evi- dence of prior and subsequent intercourse between the par- ties is relevant as proof of emotion or motive.] — 6 (a g) [The question is, whether accused killed his sister- in-law. The fact that he had procured large insurance upon her life is relevant to show motive.] — 7 (b) The question is, whether A committed a crime. The fact that A procured the instruments with which the crime was committed is deemed to be relevant. — 8 (c) A is accused of a crime. The facts that, either before, or at the time of, or after the alleged crime, A caused circumstances to exist tending 1 R. v. Clewes, i C. & P. 221. 2 [State v. Cohn, 9 Nev. 179; Commonwealth v. McCarthy, 119 Mass. 354.] 3 [German-American Bank v. Stickle, 59 Neb. 321, 80 N. W. 910.] 4 [Johnson v. State, (Tex. C. R.), 149 S. W. 165.] 5 [State v. Kent (Panacoast), 5 N. D. 516, 67 N. W. 1052.] 6 [Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 87.] 7 [Van Wyk v. People, 45 Colo. 1, 99 P. 1009.] 8 R. v. Palmer, (passim). MOTIVE, PREPARATION, ETC. 59 to give to the facts of the case an appearance favorable to himself, or that he destroyed or concealed things or papers, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence, are deemed to be relevant. — 9 (d) The question is, whether A committed a crime. The facts that, after the commission of the alleged crime, he absconded [or concealed himself], or was in possession, of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, and the manner in which he con- ducted himself when statements on the subject were made in his presence and hearing, are deemed to be relevant. — 10 (e) The question is, whether A suffered damage in a rail- way accident. The fact that A conspired with B, C and D to suborn false witnesses in support of his case is deemed to be relevant (11), as conduct subsequent to a fact in issue tending to show that it had not happened. MOTIVE. In General. Evidence of motive or absence of motive in prosecutions for murder is admissible, but proof of motive is not indis- pensable.— Scott v. State, 109 Ark. 391, 159 S. W. 1095; People v. Durrant, 116 Cal. 179, 48 P. 75; People v. Pre- sold, 154 Cal. 363, 97 P. 871; People v. Knapp, 16 Cal. App. 682, 117 P. 792; People v. Sainz, 62 Cal. 242, 121 P. 922; Millican v. State, 63 Tex. Cr. R. 440, 140 S. W. 1136. A person may testify to his motive when that is in issue. — Bowers v. Atchison, T. & S. F. Ry. Co., 82 Kan. 95, 107 P. 777; Thoresen v. St. Paul & Tacoma Lumber Co., 73 Wash. 99, 131 P. 645. Arkansas. "The jury were sitting in judgment upon an act which in point of law was to be essentially charac- terized by the motive of the heart which prompted it. These in the order of Providence are hidden and beyond the reach of human law, until developed by acts of com- mission or of omission which present them to its judg- ment in determining the quality of the act brought in (9) R. v. Patch, Wills, Circ. Ev. 230; R. v. Palmer ub. sup. (passim). (10) Common practice. (11) Moriarty v. London, Chatham & Dover Ry. Co., L. R. 5 Q. B. 314; compare Gery v. Redman, L. R. 1 Q. B. D. 161. 60 MOTIVE, PREPARATION, ETC. question. Every act, then, of either class, which in the range of probability could cast a ray of light upon the motive which produced the homicide in question, was legitimately within the range of the investigation, although occurring at an antecedent time or at another place." — Austin v. State, 14 Ark. 560. The fact that an indictment had been found against defendant for assaulting deceased is admissible to show motive.— Ford v. State, 96 Ark. 582, 132 S. W. 995. California. Prisoner is entitled to have the fact of absence of apparent motive for the perpetration of a crime weighed by the jury. — People v. Ah Fung, 17 Cal. 377. "The conduct of defendant towards the woman with whom he had lived as his wife and for whose murder he was on trial, was not irrelevant. Resulting as it seems to have done, at times, in quarrels and alienations between them of such a character as to drive the woman from her house, they were in themselves circumstances, in con- nection with the circumstances of the homicide, for the consideration of the jury. They tended to show the state of the defendant's feelings towards the woman and his treatment of her, and, in some degree to show a motive for taking her life." — People v. Kern, 61 Cal. 244. Proof of motive is never indispensable to a conviction. —People v. Durrant, 116 Cal. 179, 48 P. 75. Bribery. The bribing of other members of council ad- mitted to show motive. — People v. Glass, 158 Cal. 650, 112 P. 281, 295. Where evidence of collateral facts tends to prove the commission of a distinct, substantive offense, it is never- theless admissible, if it has a direct tendency, in view of the surrounding circumstances, to prove the motive or in- tent or other material fact. — People v. Cook, 148 Cal. 341, 83 P. 43; People v. Grow, 16 Cal. App. 147, 116 P. 369. Evidence that defendant was a member of a union en- gaged in maintaining a strike declared against works at which prosecuting witness was employed as strikebreaker, admissible.— People v. Grow, 16 Cal. App. 147, 116 P. 369. In a prosecution for murder of a non-union worker, evi- dence of the existence of a strike by a labor union of MOTIVE, PREPARATION, ETC. 61 which accused was a member is admissible. — People v. O'Bryan, 165 Cal. 55, 130 P. 1042. Idaho. In a prosecution instigated by a mother for rape of her daughter, evidence of quarrels between the mother and defendant is admissible. — State v. Johnson, 26 Ida. 609, 144 P. 784. Kansas. In quo warranto to remove a county attorney charged with violating his duty in respect to the enforce- ment of the prohibitory liquor law, evidence that the saloons were run openly and publicly in the defendant's county is relevant, as bearing upon his motives. — State v. Trinkle, 70 Kan. 396, 78 P. 854. In an action by a wife against her father-in-law for alienation of affections, she may, in order to show motive, testify that defendant had made improper advances to her which she repelled.— White v. White, 76 Kan. 82, 90 P. 1087. Montana. Evidence as to the amount of money deceased had deposited in a bank is admissible to show motive, where it appears that accused had probable knowledge of it.— State v. Lucey, 24 Mont. 295. 61 P. 994. It is not necessary for the state to prove a motive. The presence or absence of it4B not conclusive, but is to be considered as any other evidentiary fact bearing upon the ultimate question of the guilt or innocence of the de- fendant, and is more or less significant in the light of the facts of the particular case. — State v. Vanella, 40 Mont. 326, 106 P. 364. Nebraska. In a prosecution for abortion, the fact of de- fendant's recent intercourse with the woman is admis- sible as showing an intent rendering the deed more probable.— Dixon v. State, 46 Neb. 298, 64 N. W. 962. The fact that plaintiff might have earned satisfactory wages at the time he, as alleged, engaged to serve de- fendant for his board and lodging,, is admissible to show motive. — Blomgren v. Anderson, 48 Neb. 240, 67 N. W. 186. Nevada. In an action for divorce, the husband's cruelty after the suit was begun is admissible to throw light on his previous acts. — Gardner v. Gardner, 23 Nev. 207, 45 P. 139. 62 MOTIVE, PREPARATION, ETC. North Dakota. A motive to commit a crime that might be all powerful with one man might be of little or no force with another, depending upon temperament and nat- ural or acquired tendencies, and particularly upon the predisposition to commit the crime. — State v. Kent, 5 N. D. 516, 67 N. W. 1052. Oklahoma. "Motive to commit crime, if shown, may in many cases be sufficient alone, almost, to induce a belief in guilt. Upon the other hand, where no motive for the commission of a crime can be shown it is almost impos- sible to convince the mind of guilt. Men do not ordi- narily commit grave crimes, unless there is in their minds a motive strong enough to overcome the natural repug- nance against crime, and the fear of punishment which usually follows detection. This view of this question is so universally recognized as being true that it has be- come incorporated into the law, and in almost all cases where the guilt of a defendant depends upon the facts and circumstances in proof in the case the court instructs the jury to consider the motive or lack of motive which the proof shows may or may not exist in the mind of a defendant on trial charged with crime." — Son v. Territory, 5 Okl. 526, 49 P. 923. Oregon. Decedent's daughter may testify that accused a few months before the homicide had made an attempt to criminally assault her. — State v. Wilkins, 72 Or. 77, 142 P. 589. Texas. In a suit for slander by charging incest, evidence of intercourse of the parties a few months before is admis- sible.— Wood v. State, 32 Tex. Cr. R. 476, 478, 24 S. W. 284. In a prosecution for murder evidence is admissible of illicit relations between deceased and a sister of defend- ant— Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271. Arson. Insurance policy and assignment to defendant admissible, after foundation laid showing defendant, as agent of insurer, had building insured. — Arnold v. State, (Tex. Cr. R.), 168 S. W. 122. In prosecution for murder of wife, state may rebut hus- band's defense of deceased's improper relations with his wife by proof of her good reputation. — Eads v. State, (Tex. Cr. R.), 176 S. W. 574. MOTIVE, PREPARATION, ETC. 63 Washington. In an action to recover commission on the sale of goods, evidence of defendant's profits admitted to show what was a reasonable commission. — Wheeler v. F. A. Buck & Co., 23 Wash. 679, 63 P. 566. Wyoming. Prosecution for murder. Defendant's assault on decedent's father shortly before is relevant to show motive.— Horn v. State, 12 Wyo. 80, 73 P. 705. Desire for Money. The possession of money by the deceased may be shown as a motive for the desire to kill.— Keffer v. State, 12 Wyo. 49, 73 P. 556; Spates v. State, 62 Tex. Cr. R. 532, 138 S.-W. 393. California. In a prosecution for the murder of a brother- in-law, where the want of money was alleged as the motive, letters showing that accused needed money are ad- missible in evidence. — People v. Soeder, 150 Cal. 12, 87 P. 1016. Colorado. In a prosecution for murder, the fact that de- fendant and his wife had obtained large insurance on the life of deceased, and false statements of the wife to ob- tain it, may be shown. — Van Wyk v. People, 45 Colo. 1, 99 P. 1009. Nebraska. Where the charge was murder in a robbery, the state may show that deceased and his wife had a con- siderable sum of money which they had put away for safe keeping, though defendant was not present at the time.— Shumway v. State, 82 Neb. 152, 117 N. W. 407. The fact that money was in possession of the deceased on the afternoon he was murdered may be shown, although none ef it was traced into the possession of accused. — Fouse v. State, 83 Neb. 258, 119 N. W. 478. Texas. In the prosecution for a murder in an attempt at uxorcide by putting arsenic in coffee, the defendant's placing of insurance on the life of his wife, and his mania for insurance, as evidenced by insurance on horse and against accident, is admissible. — Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996. The fact that one accused of murder of one in possession of money was without funds before the homicide, and was spending money freely thereafter is admissible. — McCue v. State, (Tex. Cr. R.), 170 S. W. 280. 64 MOTIVE, PREPARATION, ETC. Wyoming. In a prosecution for murder by a husband, evidence of the amount of property the wife had at the time of their marriage one year before is admissible. — Jenkins v. State, 22 Wyo. 34, 134 P. 260. Activities of Deceased Against Accused. The fact that decedent had testified or was about to testify against defendant in a suit or prosecution, or was or had been engaged in a prosecution or suit against him, or others connected with him, is admissible. — Dunn v. State, 2 Ark. 229; Spivey v. State, 114 Ark. 267, 169 S. W. 949; State v. Geddes, 22 Mont. 68, 55 P. 919; State v. Finch, 54 Or. 482, 103 P. 505; Barkman v. State, 41 Tex. Cr. R. 105, 52 S. W. 73; Porch v. State, 50 Tex. Cr. R. 335, 99 S. W. 102; Canon v. State, 59 Tex. Cr. R. 398, 128 S. W. 141; Mitchell v. State, 65 Tex. Cr. R. 545, 144 S. W. 1006; Foster v. State, 68 Tex. Cr. R. 38, 150 S. W. 936. Oklahoma. The fact that deceased had been trying to implicate defendant in certain robberies, admitted. — Son v. Territory, 5 Okl. 526, 49 P. 923. Tbe motive of defendant in a homicide case may be shown by admitting in evidence the part that deceased had taken in disbarment proceedings against defendant for conduct unbecoming an attorney. — State v. Finch, 54 Or. 482, 103 P. 505. Texas. In a trial for murder, the fact that deceased had testified against accused at an inquest held over the death of a certain person, admitted. — Barkman v. State, 41 Tex. Cr. R. 105, 52 S. W. 73. It is permissible for the state to show as a motive for murder, that deceased had testified against defendant's brother at a trial for larceny of hogs. — Harrison v. State, (Tex. Cr. R.), 132 S. W. 783. Statement by third person of result of election of de- ceased, defendant's opponent, to an office, so that de- fendant knew it.— Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304. Utah. Murder. An officer's statement to accused, that deceased would be a witness against him for burglary, admissible.— State v. Inlow, 44 Utah 485, 141 P. 530. Situation of Accused. California. In a prosecution with intent to kill a jailer the fact that defendant was in jail on a charge of burglary MOTIVE, PREPARATION, ETC. 65 is admissible to show motive. — People v. Valliere, 123 Cal. 576, 56 P. 433. Murder of policeman. That accused was a fugitive from justice, for having killed an uncle in Greece, ad- mitted.— People v. Prantikos, 164 Cal. 113, 127 P. 1029. Colorado. Assault with intent to murder. Evidence of other assaults when sheriff and his posse were trying to arrest defendants about an hour later, admitted. — War- ford v. People, 43 Colo. 107, 96 P. 556. Utah. In a prosecution for the murder of one of a posse, defendant's prior commission of a robbery for which the posse was pursuing him is admissible. — State v. Morgan, 22 Utah 162, 61 P. 527. Washington. Possession of a burglar's jimmy may be shown in a prosecution for the murder of an officer. — State v. Ness, 71 Wash. 339, 128 P. 664. Threats and Quarrels. In prosecutions for murder and prosecutions or suits for other deeds of violence, evidence of former altercations and bad feeling of defendant with deceased or other per- son are admissible, together with threats and expressions of ill will.— Atkins v. State, 16 Ark. 568, 581; People v. Chaves, 122 Cal. 134, 54 P. 596; People v. Wilson, 23 Cal. App. 513, 138 P. 971: Satham v. Muffle, 23 N. D. 63, 135 N. W. 797; Fifer v. State, 64 Tex. Cr. R. 203, 141 S. W. 989; Gradington v. State, 69 Tex. Cr. R. 595, 155 S. W. 210; Cor- hitt v. State, 72 Tex. Cr. R. 396, 163 S. W. 436; Gant v. State, 78 Tex. Cr. R. 279, 165 S. W. 142; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939; Hill v. State, (Tex. Cr. R.), 168 S. W. 864. Arkansas. In a prosecution for the murder of a para- mour, violence of accused against their child not long be- fore the murder is admissible. — Edmonds v. State, 34 Ark. 720, 730. Colorado. In a prosecution for the murder of a sister- in-law, evidence of ill treatment of deceased by accused is admissible. — Van Wyk v. People. 45 Colo. 1, 99 P. 1009. In a prosecution for assault and battery, previous direc- tions of defendant to have the prosecuting witness as- saulted is admissible on the question of motive. — Rice v. People, 55 Colo. 506, 136 P. 74. 66 MOTIVE, PREPARATION, ETC. North Dakota. Evidence of former altercations with one of the defendants is admissible on the question of malice in an assault and battery. — Satham v. Muffle, 23 N. D. 63, 135 N. W. 797. Oregon. Threats to shoot a witness just after the af- fray, on account of which defendant is charged, is admis- sible to show malice. — State v. Garland, 5 Or. 216. Threats of defendant against deceased, and use of dan- gerous weapon, admitted. — State v. Erickson, 57 Or. 262, 310 P. 785. Texas. The details of former quarrels are not admis- sible.— Holley v. State, 39 Tex. Cr. R. 301, 46 S. W. 39. Relations of Parties. In rape and kindred crimes, evidence of the relations of the parties and of similar acts before and after the act charged is admissible. — Pleasant v. State, 15 Ark. 624, 643; People v. Edwards, (Cal.), 73 P. 416; State v. Bow- ser, 21 Mont. 133, 53 P. 179; State v. Peres, 27 Mont. 358, 71 P. 162; State v. Way, 5 Neb. 283; United States v. Griego, 11 N. M. 392, 72 P. 20; State V. Robinson, 32 Or. 43, 48 P. 357; Richardson v. State, 34 Tex. 142; Rogers v. State, 40 Tex. Cr. R. 355, 50 S. W. 338; Duncan v. State, 40 Tex. Cr. R. 591, 51 S. W. 372; Smith v. State, (Tex. Cr. R.), 73 S. W. 401; United States v. Musser, 4 Utah 153, 7 P. 389; State v. Neel, 23 Utah 541, 65 P. 494. Utah. In a prosecution for polygamous marriage, evi- dence is admissible of the relations of defendant to the women in question prior to the time of the statute and of the indictment. — United States v. Smith, 5 Utah 232, 14 P. 291; United States v. Peay, 5 Utah 263, 14 P. 342; United States v. Groesbeck, 4 Utah 487, 11 P. 542. Where the offense consists of illicit intercourse between the sexes, or in the case of incest, adultery or seduction, courts have relaxed the rule that the commission of other offenses cannot be shown, and hold that previous acts of improper familiarity between the parties, occurring prior to the alleged offense, are admissible as explaining the acts and as having a tendency to render it more probable that the act charged in the information was committed. — State v. Hilberg, 22 Utah 27, 61 P. 215. MOTIVE, PREPARATION, ETC. 67 Meretricious Relations. In prosecutions for murder, evidence of improper rela- tions of accused with deceased, or with husband or wife of deceased, is admissible to show motive: California: People v. Botkin, 9 Cal. App. 244, 98 P. 861 (improper relations between defendant and husband of deceased) ; People v. Brown, 130 Cal. 591, 62 P. 1072 (de- fendant's relations with wife of deceased). Kansas: State v. Reed, 53 Kan. 767, 37 P? 174 (same). Oklahoma: Miller v. State, 9 Okl. Cr. 255, 131 P. 717. Texas: Millner v. State, 72 Tex. Cr. R. 45, 162 S. W. 348 (relations with wife of deceased shown by letters of wife to accused). » In prosecutions for murder of husband, wife, rival, or paramour, improper relations of accused may be evidenced to show motive: Nebraska: St. Louis v. State, 8 Neb. 405, 411, 1 N. W. 371 (intimacy with another woman both before and after murder of wife). Nevada: State v. Larkin, 11 Nev. 314, 328 (relations of accused and deceased with a certain woman shown). Oklahoma: Miller v. State, 9 Okl. Cr. 255, 131 P. 717 murder of girl by married man; illicit relations with her, and attempt at abortion, shown) ; Brown v. State, 9 Okl. Cr. 382, 132 P. 359 (murder of husband; illicit relations with other men). Texas: Rice v. State. 54 Tex. Cr. R. 149, 112 S. W. 299 (murder of wife; improper relations with woman two years before); Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996 (deceased killed by arsenic in coffee intended for wife of accused: latter's correspondence with various women admitted); Millner v. State, (Tex. Cr. R.), 169 S. W. 899 (accomplice to murder of husband; her prior illicit relations admissible). Repetition of Defamatory Words. In suits for libel and slander, repetition of the defam- atory words, or utterances of similar import, even after suit begun, are admissible to show malice. — Chamberlin v. Vance, 51 Cal. 75, 84; Harris v. Zanone. 93 Cal. 59, 28 P. 845; Hearne v. De Young. 119 Cal. 670, 52 P. 150; Bee Pub. Co. v. Shields. 68 Neb. 750, 94 N. W. 1029; Adams v. State, 62 Tex. Cr. R. 426, 138 S. W. 117. 68 MOTIVE. PREPARATION, ETC. California. A repetition of the libel complained of after the commencement of the action, and a plea of truth with an attempt to substantiate such charge, are inadmissible. — Westerfield v. Scripps, 119 Cal. 607, 51 P. 958. In a suit for libel and slander statements of defendant at a different time than that charged and making a charge of a different nature is inadmissible. — Stern v. Loewen- thal, 77 Cal.«840, 19 P. 579. Evidence of Other Crimes. Evidence of other crimes may be admissible, to estab- lish motive.— People v. Kizer, 22 Cal. App. 10, 133 P. 516; State v. Bowen, 43 Utah iy, 134 P. 623. California. Letters showing motive to obtain money by murder admissible, though they were of such a character as to prejudice accused. — People v. Soeder, 150 Cal. 12, 87 P. 1016. Oklahoma. Testimony which tends to establish intent or malice upon the part of defendant, is admissible in evidence when of substantive value, even though such tes- timony may disclose the commission of other separate and distinct offenses. — Dykes v. State, 11 Okl. Cr. 602, 150 P. 84. Knowledge Necessary to Motive. Oklahoma. "A motive cannot operate to influence until the facts which create the motive exist. The facts upon which a motive is based cannot operate upon the mind until they are known by the party against whom the motive is assigned. If one person should contemplate and undertake a great wrong against another, — such a wrong as would induce in the mind of the person at whom it was directed a motive to kill, — and yet such contemplated wrong was unknown to the party, it cannot be justly said that a motive to kill could exist, because the party wronged had no knowledge of the facts which would be necessary to create the motive." — Son v. Territory, 5 Okl. 526, 49 P. 923. In order to establish a motive for the commission of a crime, it is essential that the facts upon which the motive is assigned shall be within the knowledge of the party accused. (Not shown that defendant knew that deceased was attempting to fasten responsibility for express rob- MOTIVE, PREPARATION, ETC. 69 beries upon him and others.) — Son v. Territory, 5 Okl. 526, 49 P. 923. Texas. Where an accused defends a homicide on the ground of an insult to his wife he must show that he knew of such insult. — Young v. State, 59 Tex. Cr. R. 137, 127 S. W. 1058; (see Kirklin v. State, 73 Tex. Cr. R. 251, 164 S. W. 1016). ACTS SHOWING INTENTION OR DESIGN. In General. Colorado. Subsequent conduct is relevant to show the intent with which a man left his wife. — Johnson v. John- son, 22 Colo. 20, 43 P. 130. Texas. The mental condition of a person at any time prior or subsequent to the execution of an instrument by him is relevant as bearing upon his mental condition at that time. — Williams v. Sapieha, (Tex. Civ. App.), 62 S. W. 72. On the issue of mental disability of a party at the time of the execution of a deed his entire mental history is admissible as bearing upon his mental condition at the time of its execution. — Williams v. Sapieha, (Tex. Civ. App.), 62 S. W. 72. Acts of a party are admissible as evidence of the party's intention to establish a domicile. — International & G. N. Ry. Co. v. Anderson County, (Tex. Civ. App.), 174 S. W. 305. Threats By Person Killed. In cases of homicide, where it is in issue whether or not accused or deceased was the aggressor, evidence of threats by deceased, whether communicated to defendant or not, are relevant, as evidencing a plan which may have been carried out : Arizona: Nelson v. State, 16 Ariz. 165, 141 P. 704 (that deceased was armed and had threatened accused). Arkansas: Jackson v. State, 103 Ark. 21, 145 S. W. 559 (uncommunicated threats inadmissible except to show who was the aggressor) ; Carter v. State, 108 Ark. 124, 156 S. W. 443 (uncommunicated threats just prior to the encoun- ter). Colorado: Warfortt v. People, 41 Colo. 203. 92 P. 24 (threats communicated or uncommunicated). Oklahoma: Foster v. State, 8 Okl. Cr. 139, 126 P. 835 70 MOTIVE, PREPARATION, ETC. (prior threats and hostile demonstrations by deceased and associates, whether communicated or not) ; Rogers v. State, 8 Okl. Cr. 226, 127 P. 365 (uncommunicated threats admissible). Texas: McMillan v. State, 66 Tex. Cr. R. 288, 146 S. W. 1190, (that a certain question was getting warm, that a good many persons, naming accused, were getting raw, and that there would likely be trouble over the matter) ; Bankston v. State, 76 Tex. Cr. R. 504, 175 S. W. 1068; Howe v. State, (Tex. Cr. R.), 177 S. W. 497; Hammons v. State, (Tex. Cr. R.), 177 S. W. 493. Oklahoma. Threats, either communicated or uncommun- icated, are neither relevant nor material in the trial of a person charged with homicide, unless some evidence is first introduced tending to show that at the time of the homicide the accused acted on his apparent or necessary self-defense.— Foster v. State, 11 Okl. Cr. 25, 141 P. 449. Oregon. Threats made indirectly are admissible. (That deceased proposed to witness to raise a posse for the pur- pose of hanging defendant and others.) — State v. Tarter, 26 Or. 38, 37 P. 53. Threats are admissible, though they have not been com- municated to defendant, when the evidence leaves the question in doubt as to whether the defendant or deceased was the aggressor.— State v. Tarter, 26 Or. 38, 37 P. 53. Previous threats of deceased against accused, or pre- vious unfriendly acts towards him, are permitted to be shown for the purpose of establishing a reasonable ground for belief or apprehension by accused that he was in dan- ger of death or great bodily harm at the time of the homi- cide.— State v. Porter, 32 Or. 135, 49 P. 964. Texas. Where deceased has made threats, his declara- tions of pacific intent, not communicated to accused, are inadmissible.— Johnson v. State, 67 Tex. Cr. R. 1, 148 S. W. 328. Washington. Proof of an overt act of attack on the part of deceased, and that defendant's life was in apparent imminent danger therefrom, is a prerequisite to the ad- mission of threats, or of the dangerous character of de- ceased.— State v. Cushing, 17 Wash. 544, 50 P. 712. PREPARATION. California. On a trial of accused of attempting to poison MOTIVE, PREPARATION, ETC. 71 his rival by means of strychnine, it may be shown that when arrested he was in possession of chloroform. — People v. Cuff, 122 Cal. 589, 55 P. 407. In a prosecution for robbery, the fact that defendants had registered at a hotel under assumed names is rele- vant.— People v. Kelly, 146 Cal. 119, 79 P. 846. Idaho. Evidence which tends to show preparation and plan for the commission of the crime charged is admissible as tending to show intent and purpose to commit the act, and the animus of the person, and its weight and credit are entirely for the jury. (Practicing at shooting.) — State v. Marren, 17 Ida. 766, 107 P. 993. Kansas. — Possession of burglars' tools is admissible on the question of preparation. — State v. Wayne, 62 Kan. 636, 64 P. 68. Oklahoma. Where a person is on trial, any fact is ad- missible in evidence which tends to prove preparation on his part to commit the crime with which he is charged. (Testimony as to previous occupation, in prosecution for bootlegging.)— Terry v. State, 7 Okl. Cr. 430, 122 P. 559. In a prosecution for the murder of one with whom de- fendant had had illicit relations, the fact that accused had "read up" on medical works was admissible to show that he intended to manufacture a defense that death was caused by a weak heart stimulated by strychnine. — Mil- ler v. State, 9 Okl. Cr. 255, 131 P. 717. Oregon.. In a prosecution for larceny the fact that de- fendant obtained powder with which to start the fire by breaking the lock of a powder house and entering therein does not render such act inadmissible.— State v. Roberts, 15 Or. 187, 13 P. 896. Texas. Evidence that a week before the homicide ac- cused had bought the knife used in the affray, is admis- sible.— Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 484. That accused had purchased shells like those used in the homicide, admissible. — Jones v. State, (Tex. Cr. R.), 163 S. W. 81. SUBSEQUENT CONDUCT. In General. The fact that accused resisted or threatened to resist arrest may be shown. — People v. Flannelly, 128 Cal. 83, 72 MOTIVE, PREPARATION, ETC. 60 P. 670; Mitchell v. State, 52 Tex. Cr. R. 37, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 460, 160 S. W. 361; Walker v. State, (Tex. Cr. R.), 169 S. W. 1156. California. The flight of an accomplice by breaking away from an officer while they were both being conveyed to jail, after the criminal enterprise had ended, and not in furtherance of its object, cannot be admissible in evidence against the other. — People v. Stanley, 47 Cal. 113. Flight on the part of a person accused of crime is a cir- cumstance for the jury to consider in determining the question of his guilt or innocence, but it does not give rise to a legal presumption of guilt. — People v. Wong Ah Ngow, 54 Cal. 151. In determining whether plaintiffs' ancestor executed a deed claimed to have been forged, it is proper to consider the subsequent conduct of the alleged grantor during his lifetime, whether he after the date of the deed set up any claim to the property, paid taxes, etc. — Haight v. Vallet, 89 Cal. 245, 26 P. 897. The fact that when one in the possession of stolen goods, which he claimed were his, was released by the officer, he failed to return and claim the goods is admissible. — People v. Ashmead, 118 Cal. 508, 50 P. 681. Colorado. The demeanor of an accused during the trial is admissible.— Boykin v. People, 22 Colo. 496, 45 P. 419. Kansas. Whenever a fact is shown which tends to prove a crime upon a defendant, and any explanation of such fact is in the nature of the case peculiarly within his knowledge and reach, a failure to offer such an ex- planation must tend to create a belief that none exists. — State v. Grebe, 17 Kan. 458. The demeanor of one charged with crime, at or near the time of its commission or of his arrest, may always be shown; and the testimony of the officer who sub- poenaed and took defendant before the coroner's jury, that "he was very nervous and showed a great deal of fear," was admissible. — State v. Baldwin, 36 Kan. 10, 12 P. 318. Nebraska. On a trial for bastardy, the fact that defend- ant offered to procure medical aid to get rid of the child is relevant. — Golzmeyer v. Peterson, (Neb.), 94 N. W. 974. MOTIVE, PREPARATION, ETC. 73 Nevada. Conflicting statements of defendant as to how possession of goods was obtained, admissible. — State v. En, 10 Nev. 277. New Mexico. The flight of defendant may be shown, but it does not raise a presumption of law that accused is guilty.— Territory v. Lucero, 16 N. M. 689, 120 P. 304. North Dakota. An attempt to commit suicide does not raise against defendant any presumption of guilt. — State v. Coudotte, 7 N. D. 109, 72 N. W. 913. Oregon. In a prosecution for embezzlement the fact that accused made false entries of accounts may be shown. — State v. Reinhart, 26 Or. 466, 38 P. 822. Texas. The fact of defendant's readiness to deliver up a hog that had been stolen is relevant. — Smith v. State, 42 Tex. 444. The fact that defendant's attorney attempted to suborn witnesses may not be shown, where there is no proof that such act was authorized by defendant. — Luttrell v. State, 40 Tex. Cr. R. 651, 51 S. W. 930. Where a person is in custody for a crime, his silence cannot be used against him as a confession of the truth of the statements made in his presence. (Refusal to look on body of one murdered, inadmissible.)— Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534. The frightened appearance of defendant after tho crime may be shown. — Bollen v. State, 48 Tex. Cr. R. 70, 86 S. W. 1025. The fact that accused voluntarily returned from another state where he was found with the missing horses is ad- missible.— Serop v. State. (Tex. Cr. R.), 154 S. W. 557. Repair of Appliance Causing Injury. The fact that after the happening of an accident repairs were made, or other changes made in the conditions sur- rounding the locus in quo, is inadmissible to show negli- gence: California: Limburg v. GJenwood Light Co., 127 Cal. 598, 60 P. 176 (repairing defective appliances); Saffenfield v. Main St. & A. P. R. Co., 91 Cal. 48, 27 P. 590 (substitut- ing new appliance on cars). Colorado: Anson v. Evans, 19 Colo. 505, 19 P. 479 (sub- sequent warning to employees). 74 MOTIVE, PREPARATION, ETC. Oklahoma: City of Wynnewood v. Cox, 31 Okl. 563, 122 P. 528 (installation of additional lightning arresters). Texas: Missouri P. R. Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608 (subsequent lighting of railroad crossing where accident occurred) ; Gulf, C. & S. F. R. Co. v. Compton, 75 Tex. 667, 13 S. W. 667 (subsequent precautions). Washington: Christensen v. U. T. Line, 6 Wash. 75, 32 P. 1018 (discharge of employee causing injury) ; Bell v. Washington Cedar-Shingle Co., 8 Wash. 27, 35 P. 405 (changing machinery). In an action for injuries sustained through defect in a sidewalk, the fact that subsequent repairs were made is inadmissible. — Giffen v. Lewiston, 6 Ida. 231, 55 P. 545; Carter v. Seattle, 21 Wash. 585, 59 P. 500. Arkansas. The repair of an appliance whereby an em- ployee is injured is incompetent to show negligence in furnishing him with a defective appliance. — St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205, 151 S. W. 257. California. In a libel suit, the fact that the reporter re- sponsible for the libel was discharged is inadmissible. — Turner v. Hearst, 115 Cal. 394, 47 P. 129. Subsequent precautions after a boiler explosion may be shown. — Kohn v. Triest-Rosenberg Co., 139 Cal. 340, 73 P. 165. Colorado. The subsequent construction of a new bridge in a different manner from that of the one through which a train broke, amounted to an admission that the former one was improperly constructed.— Kansas Pac. R. Co. v. Miller, 2 Colo. 442, 468. Plaintiff was allowed to prove that, subsequent to the accident, defendant posted notices at its works warning all employees at work on its lines and circuits to quit such work at 4 o'clock, and not to continue the same with- out notifying the officers at the works. Held, that the admission of this evidence was erroneous. — Colorado Electric Co. v. Lubbers, 11 Colo. 505, 19 P. 479. Kansas. In an action on account of damages sustained through sparks from defendant's engine, a subsequent change of smokestack may be shown. — St. Joseph & D. C. R. Co. v. Chase, 11 Kan. 47, 56. MOTIVE, PREPARATION, ETC. 75 The subsequent removal of a track near a coal shed where an accident occurred may be shown. — Atchison, T. & S. F. R. Co. v. Retford, 18 Kan. 245. The fact that a defective sidewalk was taken up by a city after the happening of an accident caused thereby, and another substituted therefor, is a circumstance which, in connection with other circumstances, may properly be considered as tending to show that the walk removed was defective; but it is no evidence that the city author- ities had knowledge that the walk was defective at or before the time of the accident.— City of Emporia v. Schmidling, 33 Kan. 485, 6 P. 893. Injury to engineer by a culvert being washed out. Sub- sequent enlargement of the culvert was an admission that the culvert had previously been too small. — St. Louis & S. F. R. Co. v. Weaver, 35 Kan. 412, 432, 11 P. 408. Repairs, or making place safe after injury, may be shown.— Howard v. Osage City, 89 Kan. 205, 132 P. 187. Montana. The fact that a sidewalk has been repaired since an accident is admissible only to show the condition of the sidewalk at the time of the accident, and not to show negligence. — Pullen v. City of Butte, 45 Mont. 46, 121 P. 878. The fact of subsequent repairs is admissible to show defendant's control over the place where the injury was received. — Tipton v. Topeka Ry. Co., 89 Kan. 451, 132 P. 189. Oregon. The fact of repairs upon a barbed wire fence causing an injury may be shown to prove ownership. — Siglin v. Coos Bay R. & E. R. & Nav. Co., 35 Or. 79, 56 P. 1011. Evidence that guards had been subsequently placed over the machinery where plaintiff was injured is inad- missible to show negligence of employer. — Love v. Cham- bers Lumber Co., 64 Or. 129, 129 P. 492. But where jury have viewed the place, evidence of sub- sequent repairs is admissible to show them the condition of a machine at the time of injury. — Marien v. M. J. Walsh & Co., 64 Or. 583, 131 P. 505. Flight or Escape. In prosecutions for crime, particulars concerning the escape or flight of accused may be shown: 76 MOTIVE, PREPARATION, ETC. California: People v. Winthrop, 118 Cal. 85, 50 P. 390 (hiding, taking an assumed name, and carrying around newspaper accounts of the crime) ; People v. Schafer, 161 Cal. 573, 119 P. 920 (efforts to get another to assist in escape). Idaho: State v. Davis, 6 Ida. 159, 53 P. 678 (circumstances connected with flight). Kansas: State v. Stewart, 65 Kan. 371, 69 P. 335 (flight, concealment, disguise, denial of identity, and change of name). Montana: State v. Lucey, 24 Mont. 295, 61 P. 994 (ef- forts to apprehend accused); State v. Paisley, 36 Mont. 237, 92 P. 566 (concealment) ; State v. Rodgers, 40 Mont. 248, 106 P. 3 (efforts to get away from officers at police station). Nebraska: McVey v. State, 55 Neb. 777, 76 N. W. 438 (unsuccessful search by police). Oregon: State v. Meyers, 59 Or. 537, 117 P. 818 (flight and concealment). South Dakota: State v. Cherrington, 34 S. D. 562, 149 N. W. 421 (forfeiture of bond). Texas: Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769 (attempted flight before indictment) ; McDonough v. State, 47 Tex. Cr. R. 227, 84 S. W. 594 (concealment of name and identity) ; Love v. State, 68 Tex. Cr. R. 228, 150 S. W. 920 (search and rewards); Arnold v. State, (Tex. Cr. R.), 168 S. W. 122 (indictment and order of forfeiture of bond); Grimes v. State, (Tex. Cr. R.), 178 S. W. 523 (flight and inability of officers to find him for three years, though circulars sent out) ; Holt v. State, 39 Tex. Cr. R. 282, 45 S. W. 1016, 46 S. W. 829 (arrest of co-conspirator in act of going to Arizona where stolen money was to be divided); Hawkins v. State, 58 Tex. Cr. R. 407, 126 S. W. 268 (running away from prosecutor next day after procur- ing money on false pretenses) ; Gotcher v. State, (Tex. Cr. R.), 148 S. W. 574 (flight and search). Flight or attempt to leave jurisdiction may be shown as indicating a consciousness of guilt. — Burris v. State, 38 Ark. 221; People v. Lee Dick Lung, 129 Cal. 491, 62 P. 71; State v. Baird, 13 Ida. 29, 88 P. 233; State v. Thomas, 58 Kan. 805, 51 P. 228; George v. State, 61 Neb. 669, 85 N. W. 840; Pittman v. State, 8 Okl. Cr. 58, 126 P. 696; MOTIVE, PREPARATION, ETC. 77 State v. Osborne, 54 Or. 289, 103 P. 62; Evans v. State, (Tex. Cr. R.), 76 S. W. 467; Perry v. State, 69 Tex. Cr. R. 644, 155 S. W. 263; State v. Pettit, 74 Wash. 510, 133 P. 1014. In prosecutions for crime, escape or attempts to escape of accused, and search for him may be shown. — People v. Strong, 46 Cal. 302; People v. Stanley, 47 Cal. 113; People v. Crowley, 13 Cal. App. 322, 109 P. 493; Kennedy v. State, 71 Neb. 765, 99 N. W. 645; Russell v. State, 38 Tex. Cr. R. 590, 44 S. W. 159; Taylor v. State, 49 Tex. Cr. R. 7, 90 S. W. 647; Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108; State v. Morgan, 22 Utah 162, 61 P. 527; State v. Leroy, 112 Wash. 635, 112 P. 635 (escape and re- capture). Flight to escape arrest for other crimes is inadmis- sible.— People v. Vidal, 121 Cal. 221, 53 P. 508; Damron v. State, 58 Tex. Cr. R. 255, 125 S. W. 396. The fact of refusal to escape or voluntary surrender is inadmissible. — People v. Montgomery, 53 Cal. 576; Peo- ple v. Shaw, 111 Cal. 171, 43 P. 593; Lewis v. State, 4 Kan. 309. Arkansas. That defendant tried to escape identification may be shown. — Flanagin v. State, 25 Ark. 92. California. Flight from the scene of the crime cannot be explained by the defendant until the prosecution has proved it as tending to establish guilt. — People v. Clark. 84 Cal. 573, 24 Pac. 313. The fact that accused was booked at the police station under an assumed name is admissible. — People v. Kelly, 146 Cal. 119, 79 P. 846. Before evidence of flight of one accused of crime is admissible it must be shown that he knew he was charged with crime, or had a conscious realization of guilt. — People v. Sainz, 162 Cal. 242, 121 P. 922; People v. Brecker, 20 Cal. App. 205, 127 P. 666. Idaho. Evidence of flight of an accused is admissible for the purpose of showing who did the act, but not to de- termine the grade of the offense. — People v. Ah Choy, 1 Idaho 320. Evidence of flight la admissible to determine the degree of homicide— State v. Lyons, 7 Idaho 530, 64 P. 236. 78 MOTIVE, PREPARATION, ETC. Any evidence tending to show reasons for flight of de- fendant accused of crime admissible. — State v. Baird, 13 Idaho 29, 88 P. 233. Kansas. Prosecution for larceny, printed post cards de- scribing horse stolen and offering reward for horse also describing defendant, mailed by sheriff not admissible to show search for defendant, and his flight. — State v. Wood- ruff, 47 Kan. 151, 27 P. 842. Montana. Evidence of efforts made to apprehend defend 1 ant after discovery of crime admissible to show his flight and concealment, from which guilt might be inferred. — State v. Lucey, 24 Mont. 295, 61 P. 994. North Dakota. A presumption of guilt arises from flight. This presumption will have more or less force according to the facts and circumstances attending it. But the flight, with its attendant facts and circumstances, can always go to the jury under the instructions of the court as to how its effect should be weighed. — State v. Kent, 5 N. D. 516, 67 N. W. 1052. Oregon. Whether accused attempted flight is to be de- termined by the movements of defendant and not of a posse — State v. Hogg, 64 Or. 57, 129 P. 115. Obstruction of Evidence. The fact that a party to a suit failed to produce evi- dence, or attempted to influence or repress testimony, is admissible against him: Arkansas: Maxey v. State, 76 Ark. 276, 88 S. W. 1009 (assault on witness the day before trial). California: Leese v. Clark, 29 Cal. 664 (refusal to pro- duce a deed, though a copy proffered); People v. Dole, 122 Cal. 486, 51 P. 945 (failure to produce evidence) ; Peo- ple v. Burke, (Cal. App.), 122 P. 435 (manufactured testi- mony); People v. Bird, 21 Cal. App. 76, 132 P. 1061 (at- tempt to prove false alibi). Idaho: State v. Marren, 17 Ida. 766, 107 P7"99lT"( fabrica- tion or procuration of false testimony). Montana: State v. Mahoney, 24 Mont. 281, 61 P. 647 (stifling evidence). Nebraska: Blair v. State, 72 Neb. 501, 101 N W. 17 (same); Woodruff v. State, 72 Neb. 815, 101 N. W. 1114 (stifling prosecution). MOTIVE, PREPARATION, ETC. 79 New Mexico: State v. Ancheta, 20 N. M. 19, 145 P. 1086 (attempt to bribe witness). North Dakota: State v. Rosum, 8 N. D. 548, 80 N. W. 480 (intimidation of witness). Oregon: Schreyer v. Turner Flouring Mills Co., 29 Or. 1, 43 P. 719 (not producing documents). Texas: Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S. W. 975 (failure to produce evidence) ; Weatherford, M. W. & N. R. Co. v. Duncan, 88 Tex. 611, 32 S. W. 878 (em- ployees of defendant, subpoenaed by plaintiff, absent) ; Clark v. State, (Tex. Cr. R.), 43 S. W. 522 (defendant's brother procuring state's witness to leave country, with his knowledge); Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261 (attempt to bribe witness). Utah: Mclntyre v. Ajax Mining Co., 17 Utah 213, 53 P. 1124 (failure to produce evidence). Washington: State v. Constantine, 4S Wash. 218, 93 P. 317 (fraud in presentation of case, suppressing or attempt- ing to suppress evidence). California. An unsuccessful attempt to prove an alibi is not, as a matter of law, a circumstance of "great weight" against the prisoner. — People v. Malaspina, 57 Cal. 628. Oklahoma. Evidence of attempt to bribe witness to tes- tify in defendant's behalf must be shown to have been instigated by defendant to be relevant. — Bruner v. United States, 21 Okl. 410, 96 P. 597. Texas. Absence of two eye witnesses to accident may be accounted for by showing that plaintiff had subpoenaed them, and that they were in employ of defendant. — Weath- erford, M. W. & N. Ry. Co. v. Duncan, 88 Tex. 611, 32 S. W. 87S. The fact that attempts have been made to influence witnesses is admissible, but it must be shown that de- fendant authorized such attempts. — Ezell v. State, (Tex. Cr. R.), 71 S. W. 283. The fact that witnesses were induced to leave the state cannot be shown, in the absence of evidence that defend- ant was connected with the scheme. — Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 887. 80 STATEMENTS ACCOMPANYING ACTS Article 8.* statements accompanying acts, complaints, statements in presence of a person. Whenever any act may be proved, statements accompanying and explaining that act made by or to the person doing it may be proved if they are necessary to understand it. (a) In criminal cases the conduct of the person against whom the offense is said to have been committed, and in particular the fact that he made a complaint soon after the offense to per- sons to whom he would naturally complain, are deemed to be relevant; but the terms of the complaint itself seem to be deemed to be ir- relevant, (b) When a person's conduct is in issue or is or is deemed to be relevant to the issue, statements made in his presence and hearing by which his conduct is likely to have been affected, are deemed to be relevant, (c) Illustrations. (a) The question is, whether A committed an act of bank- ruptcy by departing- the realm with intent to defraud his creditors. Letters written during: his absence from the realm, indi- cating; such an intention, are deemed to be relevant facts. — 1 (a) Illustrations (a), (b), [(b a), (b b), (b c), <1> d) ami (b e). Other statements made by sucb persons are relevant or not, according to the rules as to statements hereinafter contained. See Ch. IV, infra; 3 Wigmore Ev., §§ 1745-1765.] (b) Illustration (c). (c) R. v. Edmunds, G C. & P. 161; Neil v. Jakle, 2 C. & K. 709. Illustration (d). • See Note at end of Article. STATEMENTS ACCOMPANYING ACTS (b) The question is, whether A was sane. The fact that he acted upon a letter received by him is part of the facts in issue. The contents of the letter so acted upon are deemed to be relevant, as statements accompanying and explaining such conduct. — 2 (b a) [The question is, whether a certain instrument is a deed or a will. Statements of the person executing the instrument, made to the scrivener, to the effect that he did not desire to make a will, but preferred to convey the property to his wife in such a manner that he could retain control of it during his lifetime, is relevant.] — 3 (b b) [The question is, whether a valid levy on sheep was made by a deputy sheriff. His statement, upon delivering plaintiff a written notice of the alleged levy, that the sheriff would probably never come after the sheep, is relevant.] — 4 (b c) [The question is, did defendant have probable cause for instituting a criminal charge against plaintiff. Information communicated to defendant by a child 11 years old, who claimed to have seen the plaintiff commit the offense, there appearing no reason to doubt the truth of her state- ment, is relevant.] — 5 (b d) [The question is, whether plaintiff's cattle were in- jured by rough handling during transit. Plaintiff's complaint to the conductor, calling attention to the fact that the cattle were being roughly handled, made during the time the cattle were in possession of the conductor and in the course of transportation, and at the time they were being roughly handled, is relevant.] — 6 (b e) [The question is, whether plaintiff had produced a purchaser ready and willing to take the property of defend- ant upon the terms proposed by him. Conversations and agreement between plaintiff and the prospective purchaser are admissible to show performance of plaintiff's contract.] — 7 (I) f) [The question is. whether plaintiffs had acquired a prescriptive right to the use of water from a stream. i Kawson v. Haigh. 2 Bing. 99; Uateman v. Bailey. •"> T 512. (See supra, Article ::.) 2 Wright v. I'...- ,i. Tatham, 7 a & E. 324, 325 (per i>. 474, 7s x w 962.] 5 [Dwain v. Descalso, tie, cal 115, r, P. M3.] 6 (.Missouri. K. & T. Ry. Co. v. Ross & Phelan, (Tex. Civ. A-pp.), 12:! S. \V. 231.] 7 [Leonard v. Roberts, 20 Colo. B8, 3-0 ;\ 880; Good v. Smith, i I < >r. :.7*. 7»; P. 36 I. ] 82 STATEMENTS ACCOMPANYING ACTS Declarations of plaintiffs at the time they were using the water, that they claimed a right to its use, are relevant.] — 8 (b g) [The question is, was plaintiff the owner of the con- tents of a saloon and fixtures attached by defendant as the property of a former owner. Declarations of the latter, made after plaintiff had gone into possession, that he had sold out to plaintiff, are irrele- vant.] — 9 (c) The question is, whether A was ravished. The fact that, shortly after the alleged rape, she made a complaint relating to the crime, and the circumstances under which it was made, are deemed to be relevant, but not (it seems) the terms of the complaint itself. — 10 The fact that, without making a complaint, she said that she had been ravished, is not deemed to be relevant as con- duct under this article, though it might be deemed to be rele- vant (e. g.) as a dying declaration, under Article 26. (d) [The question is, whether insured was the sole and un- conditional owner of the property insured. Statements of a third person, made in the presence of the insured and unobjected to by him, that the declarant owned an interest therein, is relevant.] — 11 STATEMENTS ACCOMPANYING ACTS (VERBAL ACTS). In General. Declarations of plaintiff in a breach of promise suit with regard to the conduct of defendant with respect to his agreement to marry her are inadmissible. — Seibrandt v. Sorg, (Cal.), 65 P. 318; Cooper v. Bower, 78 Kan. 156, 96 P. 59. Arkansas. The acts and declarations of a gratuitous bailee, contemporaneous with the loss of the thing bailed, are competent to exonerate him from the imputation of fraud. — Gracie v. Robinson, 14 Ark. 438. Declarations of decedent, that defendant had executed a note in his favor, inadmissible. — Caffey v. Allison, (Ark.), 154 S. W. 202. 8 [Evans Ditch Co. v. Lakeside Ditch Co., 13 Cal. App. 119, 108 P. 1027.] 9 [Lumm v. Howells, 27 Utah 80, 74 P. 432.] 10 R. V. Walker, 2 M. & R. 212, see Note V, accompany- ing this article. 11 [Simonds v. Firemen's Fund Ins. Co., (Tex. Civ. App.), 35 S. W. 300.] STATEMENTS ACCOMPANYING ACTS 83 California. A witness may testify as to the declarations of a party made to him while such party was engaged in the performance of an act, and illustrating the object and intent of its performance, although such party has since died.— Tait v. Hall, 71 Cal. 149, 12 P. 391. Proof of information conveyed to a person relating to the subject-matter of a letter subsequently written by him is admissible to show the meaning and intent of words used therein.— Dennie v. Clark, 3 Cal. App. 760, 87 P. 59 Colorado. In an action by a wife for enticing away her husband, declarations of the husband, having reference to his separation or contemplated separation from his wife, are admissible for the purpose of showing what caused such separation. — Williams v. Williams, 20 Colo. 51, 37 P. 614. Statements sent in by an insurance agent to his com- pany made during the transaction of business for which his sureties were bound, and also his admission of indebt- edness made to the company's resident secretary, are ad- missible against his sureties. — Thompson v. Commercial Union Assur. Co., 20 Colo. App. 331, 78 P. 1073. Kansas. Declarations as to title and ownership of land, by one in possession of the same, who is not a party to the action, which are not against his interest, do not accompany the execution of a conveyance or any act of possession, nor relate to the extent of his possession and have no legitimate connection with, or tendency to qualify, any act which is the subject of inquiry, but are mainly narratives of past occurrences, do not constitute a part of the res gestae and are not receivable in evidence. (That the land, though deeded in defendant's name, was really declarant's). — Crawford v. Crawford, 60 Kan. 126, 55 P. 842. Declarations of defendant, made several months before his property was attached, that he intended to return from New Mexico and had not abandoned his residence In Kansas, are admissible in his behalf. — Bigelow v. Bear, 64 Kan. 887, 68 P. 73. Statements of a person actually occupying the office of president of a bank and transacting its business, that the bank did not hold a certain note, upon making an investi- 84 STATEMENTS ACCOMPANYING ACTS gation therefor, were verbal acts and admissible against the bank.— Olson v. Houston Nat. Bank, 78 Kan. 592, 96 P. 853. Directions by a depositor as to credit to be given, rele- vant. — Fidelity & Deposit Co. of Maryland v. State Bank, 91 Kan. 740, 139 P. 370. Montana. "We think the res gestae extended over the en- tire time between July, 1885, when the contract (for adop- tion as daughter) was alleged to have been made, to the death of the deceased. The conduct of the parties to- wards each other during that entire time is part of the transaction, and whatever either party did or said during the time which sheds light upon the matter and aids in dis- closing the relations the parties sustained and understood that they sustained towards each other must be construed as part of the res gestae." — Burns v. Smith, 21 Mont. 251, 53 P. 742. Letters making demand for delivery of goods are admis- sible to show demand. — Sandeen v. Russell Lumber Co., 45 Mont. 273, 122 P. 913. Nebraska. Declarations of parties made at a meeting of a school district where a resolution for compromise of a claim against the district was adopted, tending to show that they were intimidated and for that reason left the meeting and refrained from voting on the resolution, are properly receivable as part of the res gestae.— Gering v. School Dist. No. 28, 76 Neb. 219, 107 N. W. 250. Nevada. Declarations made by a train agent and the con- ductor at the time plaintiff was ejected are admissible as part of the res gestae. — Forrester v. Southern Pac. Co., 36 Nev. 247, 134 P. 753. Oregon. A letter from one of the parties to another con- cerning the goods in question, being a part of and ex- planatory of the transaction, is admissible. — Frame v. Oregon Liquor Co., 48 Or. 272, 85 P. 1009. Declarations of one having owned and in possession of property are admissible to show that he had never con- sciously parted with title to it. — Butts v. Purdy, 63 Or. 150, 125 P. 313. The declarations of the president of a corporation to the payee of a note, that he had authority to execute it, STATEMENTS ACCOMPANYING ACTS 85 are admissible as res gestae, not to prove authority, but to show that he actually affixed his signature thereto. — Markham v. Loveland, 69 Or. 451, 138 P. 483. South Dakota. Letter written by plaintiff, making demand for the $400 involved in the case, admissible. — Ede v. Ward, 32 S. D. 351, 143 N. W. 269. Texas. The question being as to a parol sale of sheep, letters of defendant to a third person, tending to show a valid sale of the sheep to defendant, are admis- sible. — Downey v. Taylor, (Tex. Civ. App.), 48 S. W. 541. Declarations of a landowner as to the purpose in laying out a square are admissible on the question as to whether it was dedicated as a public square. — Scott v. Rockwall County, (Tex. Civ. App.), 49 S. W. 932. The acts and declarations of one presenting a note for payment constitute a part of the res gestae. — Bolt v. State Savings Bank, (Tex. Civ. App.), 145 S. W. 707. Declarations of a wife on the day her husband died, tending to show her knowledge of a deed by him to her, but retained in his possession, admitted to show her knowl- edge of the existence of the deed prior to her husband's death.— Stevens v. Haile, (Tex. Civ. App.), 162 S. W. 1025. Declarations of a husband upon leaving premises used as a homestead, that they would return as soon as the condition of her health would permit, are admissible upon the question of abandonment of the homestead. — Parker v. Schrimsher, (Tex. Civ. App.), 172 S. W. 165. Declarations of a person running an automobile that "as long as he had purchased the car he would like to run it," are admissible to show ownership.— Olds Motor Works v. Churchill, (Tex. Civ. App.), 175 S. W. 785. Wyoming. Declarations of a defendant during flight ad- missible as verbal acts constituting a part of the trans- action. (That he was going to leave the country; that they were making it pretty hot for him in Brown's Park.) —Johnson v. State, 8 Wyo. 494, 58 P. 761. Explanatory of Nature of Instrument or Transaction. California. Oral declarations made by a person at and about the time he signed orders upon which his wife drew deposits from a bank are admissible on the question as 86 STATEMENTS ACCOMPANYING ACTS to a gift of such deposits. — Sprague v. Walton, 145 Cal. 228, 78 P. 645. Intent to make gift inter vivos may be shown by decla- rations before or after. — Ruiz v. Dow, 113 Cal. 490, 45 P. 867. Colorado. Declarations of the grantor in a deed made ten days after its execution are not res gestae. — Chappell v. John, 45 Colo. 45, 99 P. 44. Kansas. Where a parent executes a series of deeds to several of his children, seemingly in pursuance of a gen- eral plan, evidence of what he said at the time of the delivery of one of them, tending to show a purpose to dis- criminate against a part of his children in the disposition of his property, is competent evidence that all the deeds of the series, including even those of an earlier date, were intended as preferential gifts.— Plowman v. Nicholson, 81 Kan. 210, 106 P. 279. Declarations of a grantor after a deed had been signed and acknowledged, but before it was delivered by record- ing, throwing light upon the question as to whether the deed was a preferential gift or an advancement to a son, are relevant.— Martin v. Shumway, 89 Kan. 892, 132 P. 993. North Dakota. Declarations of a grantor to a notary made at the drawing up of a deed to his son, as to why the deed was given, are inadmissible. — Johnston v. Spoonheim, 9 N. D. 191, 123 N. W. 830. Oregon. Grantor's declarations to a notary at the time a conveyance was executed, in respect to the subject- matter, are admissible.— Robson v. Hamilton, 41 Or. 239, 69 P. 651. Texas. Acts or words of a grantor, even though retain- ing possession of the deed, showing that he intended title should pass to the grantee, are admissible upon the ques- tion of delivery. — Chew v. Jackson, (Tex. Civ. App.), 102 S. W. 427. Declarations made after the execution of a contract of sale that certain property bought was not included in the instrument are inadmissible. — Syler v. Culp, (Tex. Civ. App.), 138 S. W. 175. Making or Performance of Contracts. Kansas. Statements by the president of a company whose name was signed to negotiable paper, made after its ma- STATEMENTS ACCOMPANYING ACTS 87 turity, to a surety thereon, requesting him to protect it, are admissible upon the question as to who was the prin- cipal debtor. — Water Power Co. v. Brown, 23 Kan. 676. Directions by a depositor as to how a certain deposit shall be credited, when a part of the transaction ac- companying it, may be shown by the banker. — Washbon v. State Bank of Holton, 86 Kan. 468, 121 P. 515. North Dakota. Where the only controverted point related to the matter of payment for wheat, delivered by plaintiff to defendant's elevator, it was proper to prove by plain- tiff that defendant's agent assigned as a reason for re- fusing to pay him, that the wheat had never been de- livered. — Benjamin v. Northwestern Elevator Co., 6 N. D. 254, 69 N. W. 296. Letters written long after a contract was entered into, giving the writer's version of the transaction, inadmis- sible.— Mulroy v. Jacobson, 24 N. D. 354, 139 N. W. 697. Oklahoma. Letters forming part of a transaction to se- cure life insurance are admissible. — Keel v. New York Life Ins. Co., 20 Okl. 195, 94 P. 177. Oregon. Conversation between plaintiff's attorney with president of defendant corporation as to his authority to sign a certain note for the corporation, made during nego- tiations for its signature, are admissible as part of the proof that the note was thus signed. — Markham v. Love- land. 69 Or. 451, 138 P. 483. * South Dakota. Declarations of insured made while a policy was in his hands as to reasons why it was not de- livered to insured, admissible. — Wheaton v. Liverpool & London & Globe Ins. Co., 20 S. D. 62, 104 N. W. 850. Texas. Testimony as to original entries made in a memo- randum book by an agent of a payee of a note, showing receipt by him of the balance due on the note, are ad- missible upon the question as to the circumstances of pay- ment.— Henry v. Bounds, (Tex. Civ. Apj). i. 46 S. w. 126. Declaration of grantee in a deed upon being presented with the instrument for acceptance that he would not accept the deed is admissible upon the question of accept- ance.— Smith v. T. M. Richardson Lumber Co., 92 Tex. 448. 49 S. W. 574. What was aald by the parties who delivered and who received trees when they were shipped, concerning the 88 STATEMENTS ACCOMPANYING ACTS same and their transportation, is admissible. — Pacific Ex- press Co. v. Needham, (Tex. Civ. App.), 94 S. W. 1070. Acts and declarations of one presenting a note for pay- ment, as to its owner, are admissible. — Bolt v. State Sav- ings Bank, (Tex. Civ. App.), 145 S. W. 707. Plaintiff sent to another bank before maturity an un- indorsed note for collection. Its declaration in the trans- mitting letter, that "We purchased this note on your recommendation, dated April 9, 1909," was admissible in proof of plaintiff's claim of ownership before maturity. — National State Bank v. Ricketts, (Tex. Civ. App.), 152 S. W. 646. Persons in Possession of Land. Declarations of a person in possession of land are ad- missible to show the character and extent of the holding: Arkansas: Seawell v. Young, 77 Ark. 309, 91 S. W. 544 (claim of sole ownership; admissible on behalf of heirs of declarant) ; Davis v. Epstein, 77 Ark. 221, 92 S. W. 19 (that he had dedicated a water front to the public). California: Stockton Sav. Bank v. Staples, 98 Cal. 189, 32 P. 936 (claim of sole ownership) ; Bush & Mallett Co. v. Helbing, 134 Cal. 616, 66 P. 967 (grantor remaining in possession after conveyance to wife, deed unrecorded, ad- missible to show fraud). Kansas: Hubbard v. Cheney, 76 Kan. 222, 91 P. 793 (pur- chase and ownershp) ; Butts v. Butts, 84 Kan. 475, 114 P. 1048 (admissible, not as assertion of title, but to explain possession and character of ownership). Oklahoma: Meyer v. United States, 5 Okl. 173, 48 P. 186 (character and purpose of holding). South Dakota: Murphy v. Dafoe, 18 S. D. 42, 99 N. W. 86 (that he was acting as agent). Texas: Gunn v. Wynne, (Tex. Civ. App.), 43 S. W. 290 (intended to stay until he died). Arkansas: The declarations of one in possession of land that she had never delivered a deed to a certain party are inadmissible. — King v. Slater, 96 Ark. 589, 133 S. W. 173. Acts and declarations of an owner of land tending to show that he recognized the claim of an adjoining land owner to certain land the former was in possession of are STATEMENTS ACCOMPANYING ACTS 89 admissible on the question as to whether such holding was adverse.— Butler v. Hines, 101 Ark. 409, 142 S. W. 509. California. The declarations of a person while engaged in the performance or an act, and illustrating the object and intent of its performance, are admissible. (Declara- tions of an owner of land while he was having it surveyed, that he was not going to have a road on the west line of the land he was surveying.) — Tait v. Hall, 71 Cal. 149, 12 P. 391. Declarations of a grantor of land made to his grantee before parting with title, that he had a prescriptive right to a ditch to convey water over the lands of another, are admissible. — Burris v. Rodrigues, 22 Cal. App. 645, 135 P. 1105. Colorado. That declarant claimed to be the owner of a priority to the use of water and was exercising rights thereunder, relevant to negative abandonment. — Central Trust Co. v. Culver, 35 Colo. 93, 83 P. 1064. Idaho. Declarations of a grantor as to the stakes of an adjoining claim admissible, if made before he parted with the property. — Bismark Mountain Gold Min. Co. v. North Sunbeam Gold Co., 14 Ida. 516, 95 P. 14. Kansas. Declarations of a deceased tenant in possession, in assertion of his title to the tract are admissible to prove the fact of an adverse claim of title against his co- tenant.— Rand v. Huff, 59 Kan. 777, 53 P. 483. Declarations of persons in possession of property made after their execution of a deed to the same, that they were not leasing but owned the property, inadmissible. — Brough- an v. Broughan, 62 Kan. 724, 64 P. 608. Declarations by a husband while he and his wife were in possession of land under a deed to both jointly, ex- planatory of the possession and rights claimed in the land, are admissible upon the question as to whether the inclusion of the wife's name therein was merely to secure her for a loan to make up the purchase price, making the deed merely a mortgage as to her. — Hubbard v. Cheney, 71 Kan. 222, 91 P. 793. In an action where there is an issue of adverse posses- sion of land, the declarations of the occupant importing title in himself, which give color to his possession, are admissible as verbal parts of his act of occupation. — 90 STATEMENTS ACCOMPANYING ACTS Liebheit v. Enright, 77 Kan. 321, 94 P. 203; Rand v. Huff, 59 Kan. 777, 53 P. 483. Texas. Declarations of persons in possession of land that they held as tenants cannot be used to show possession of the landlord for the purpose of showing his adverse possession.— Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265. Not competent when they relate to a previous posses- sion. — Campbell v. San Antonio Machine & Supply Co., (Tex. Civ. App.), 133 S. W. 750. Declarations made by a party while in the actual pos- session of property, asserting title in himself are admis- sible in evidence as part of the res gestae, explanatory of the possession, but this declaration cannot be extended to include declarations as to the history and source of such title.— Lester v. Huston, (Tex. Civ. App.), 167 S. W. 321. Persons in Possession of Personal Property. Declarations of one in possession of personal property, explanatory of possession, are admissible: Kansas: Stone v. Bird, 16 Kan. 488 (claim as owner); Wiggins v. Foster, 8 Kan. App. 579, 55 P. 350 (disparage- ment of title, or explanatory of possession) ; Kimball v. Edwards, 91 Kan. 298, 137 P. 948 (ownership of certifi- cate of stock). Montana: Chan v. Slater, 33 Mont. 155, 82 P. 657 (claim of ownership, after title transferred to wife). North Dakota: Wipperman Merc. Co. v. Robbins, 23 N. D. 208, 135 N. W. 785 (ownership of car of poultry). Texas: First Nat. Bank v. Howard, (Tex. Civ. App.), 174 S. W. 719 (by bailee, as to who was bailor); Wofford v. Lane, (Tex. Civ. App.), 167 S. W. 180 (that he had given mules to wife). Declarations of a herder in charge of sheep trespassing upon lands of another, that they belonged to a certain person, are inadmissible. — Surbaugh v. Butterfield, 44 Utah 446, 140 P. 757; Contra, Henderson v. Coleman, 19 Wyo. 183, 115 P. 439. Kansas. Declarations of a party accompanying some principal fact which they serve to qualify or explain are a part of the res gestae. (Statements of ownership and claim to a horse, while in possession.) — Stone v. Bird, 16 Kan. 488. STATEMENTS ACCOMPANYING ACTS 91 Nevada. Declaration of person in possession of personal property that it belonged to him, and its being marked in his name, furnished some evidence in proof of his title. — Hanson v. Chiatovich, 13 Nev. 395. North Dakota. Declarations of defendant in attachment proceedings as to the ownership of personal property levied upon, while in possession thereof, are admissible to prove his interest therein. — Wipperman Mercantile Co. v. Robbins, 23 N. D. 208, 135- N. W. 785. Oklahoma. Acts and declarations of the possessor of per- sonal property concerning the same are admissible, to determine the nature of such possession, though not made in the presence of the one claiming ownership in the property. — Ragan v. Citizens' State Bank, (Okl.), 131 P. 1093. Texas. Declarations of one in possession of a store and goods, explanatory of the same, stating for whom he was holding, are admissible as res gestae. — Hunter v. Pen- land, (Tex. Civ. App.), 32 S. W. 421. Utah. Statements by a debtor that he had sold his grain to plaintiff, not made at the time of the sale, or during negotiations for the sale, are inadmissible to show title in plaintiff as against one levying on the grain before such vendor had parted with possession. — White v. Pease. 15 Utah 70, 49 P. 416. Showing Knowledge or Mental Condition. California. Declarations of a section foreman, in direct- ing a trestle foreman to repair a certain trestle, that "that trestle is going down and will kill the whole outfit of you," are admissible to show knowledge of the com- pany through its agent of defects in the trestle. — Bunfly v. Sierra Lumber Co.. 149 Cal. 622, 87 P. 622. Declarations of a decedent with reference to making a disposition of his property, made some time before the execution of a deed, are admissible to show his mental capacity, but not to show undue influence or fraud. — Lamb v. Wilke, 19 Cal. App. 286, 125 P. 757. Colorado. Declarations of voters as to domicile made at the time of voting, tending to impeach their qualifica- tions as electors, are admissible. — Sharp v. Mclntire, 23 Colo. 99, 46 P. 115. 92 STATEMENTS ACCOMPANYING ACTS Declarations of testatrix, made at the time of drawing a line through the signature of her will, are admissible to show the intent of the act. — Glass v. Scott, 14 Colo. App. 377, 60 P. 186. Texas. Declarations of the grantor at the time of the execution of a deed are admissible to prove fraud and undue influence as a part of the res gestae. — Rankin v. Rankin, (Tex. Civ. App.), 151 S. W. 527. Wyoming. In an action for malicious prosecution of plaintiff for cutting and removing the hay grown upon certain land, testimony as to what plaintiff had stated in the presence of defendant and the register and receiver of the land office as to his claim to the land, and the re- plies of the register and receiver respectively, are admis- sible to show defendant's knowledge that plaintiff had claimed the land as part of his homestead and that the register and receiver recognized such claim. — Boyer v. Bugher, 19 Wyo. 463, 120 P. 171. RAPE. Fact of Complaint Admissible. In prosecutions for rape, the fact that the victim made immediate complaint is relevant. — Pleasant v. State, 15 Ark. 624; People v. Figueroa, 134 Cal. 159, 66 P. 202; State v. Daugherty, 63 Kan. 473, 65 P. 695; State v. Sargent, 32 Or. 110, 49 P. 889; Pefferling v. State, 40 Tex. 486; Ulmer v. State, 71 Tex. Cr. R. 579. 160 S. W. 1188. The state may show as corroboration of the prosecu- trix's testimony, that she made complaint soon after com- mission of the outrage. — Trimble v. Territory, 8 Ariz. 273, 71 P. 932; People v. Barney, 114 Cal. 554, 47 P. 41; Welsh v. State, 60 Neb. 101, 82 N. W. 368. The fact that prosecutrix made complaint is not neces- sary to be shown in order to corroborate her testimony, when she is under the age of consent, and willingness is im- material. — Levy v. Territory, 13 Ariz. 425, 115 P. 415; Peo- ple v. Lee, 119 Cal. 84, 51 P. 22; People v. Wilmot, 139 Cal. 103, 72 P. 838; People v. Jacobs, 16 Cal. App. 478, 117 P. 615; State v. Birchard, 35 Or. 484, 59 P. 468. The rule that unless the prosecuting witness testifies the fact of her complaint is hearsay and inadmissible does not apply where the child is of too tender an age to tes- STATEMENTS ACCOMPANYING ACTS 93 tify.— People v. Figueroa, 134 Cal. 159, 66 P. 202; People v. Bianchino, (Cal. App.), 91 P. 112. Either the prosecutrix or the persons to whom she made complaint may testify as to that fact. — People v. Wilmot, 139 Cal. 103, 72 P. 838; People v. Scalamiero, 143 Cal. 343, 76 P. 1098; State v. Fowler, 13 Ida. 317, 89 P. 757; Oleson v. State, 11 Neb. 276, 9 N. W. 38; Welsh v. State, 60 Neb. 101, 82 N. W. 368; Harmon v. Territory, 9 Okl. 313, 60 P. 115; State v. Ogden, 39 Or. 195, 65 P. 449. The rule permitting the fact of timely complaint to be introduced in evidence applies to the crime against nature. —People v. Swist, 136 Cal. 520, 69 P. 223. Also to assault with intent to rape. — State v. Imlay, 22 Utah 156, 61 P. 557. California. The mother may testify that the child made complaint and that she made an examination, and may state the result of the examination. — People v. Baldwin, 117 Cal. 244, 49 P. 186. A complaint communicated in the form of mere idle gossip is inadmissible. — People v. Wilmot, 139 Cal. 103, 72 P. 83&. Corroboration by showing fact of complaint is not neces- sary to sustain a verdict. — People v. Horn, 25 Cal. App. 583, 144 P. 641. Idaho. In a prosecution for rape the state may prove by prosecutrix and other witnesses that she made complaint soon after the commission of the alleged act, and show when, where and to whom, and under what circumstances she made complaint, and her appearance, demeanor and physical condition at the time she made complaint; but the details of the conversations had, and the name of the person accused by her may not be given by the witness. — State v. Fowler, 13 Ida. 317, 89 P. 757. Kansas. Testimony of complaints of the injured person concerning the alleged offense upon her is admitted upon the theory that, if she made no complaint of such an out- rage, her silence might be construed as evidence that it had not occurred. — State v. Hoskinson, 78 Kan. 183, 96 P. 138. Nebraska. Where prosecutrix does not testify, through imbecility, etc., the fact of complaint is inadmissible. — State v. Meyers, 46 Neb. 152, 64 N. W. 697. 94 STATEMENTS ACCOMPANYING ACTS The jury may be told that, if they found that prosecu- trix made timely complaint, they might consider that fact in connection with other facts and circumstances estab- lished by the evidence in ascertaining whether the woman had been corroborated. — Henderson v. State, 85 Neb. 444, 123 N. W. 459. Utah. In a prosecution for rape the prosecutrix may, upon her examination in chief, testify to the fact that she made complaint, and to whom and when and where such com- plaint was made, but not the particulars thereof. — State v. Neel, 21 Utah 151, 60 P. 510. Washington. Prosecutrix, when testifying to the fact that she made complaint, may state the name of the person to whom such complaint was made. — State v. Gay, 82 Wash. 423, 144 P. 711. Details of Complaint. The fact that the prosecuting witness made complaint at first opportunity is admissible, but not the details of what she said.— Lee v. State, 66 Ark. 286, 50 S. W. 517; Williams v. State, 66 Ark. 264, 50 S. W. 517; People v. Stewart, 97 Cal. 238, 32 P. 8; People v. Lambert, 120 Cal. 170, 52 P. 307; People v. Wilmot, 139 Cal. 103, 72 P. 838; People v. Scalamiero, 143 Cal. 343, 76 P. 1098; State v. Harness, 10 Ida. 18, 76 P. 7S8; Oleson v. State, 11 Neb. 276. 9 N. W. 38; Mathews v. State. 19 Neb. 330. 27 N. W. 234; Henderson v. State, 85 Neb. 444, 123 N. W. 459; Har- mon v. Territory, 5 Okl. 268, 49 P. 55; State v. Hunter, 18 Wash. 670, 52 P. 647. Details of the complaint may be admitted, if the'y were so recent as to be in the nature of spontaneous exclama- tions.— Rogers v. State, 65 Tex. Cr. R. 105, 143 S. W. 631; Valdez v. State, 71 Tex. Cr. R. 487, 160 S. W. 341; Douglass v. State, 73 Tex. Cr. R. 385, 165 S. W. 933; State v. Neel, 21 Utah 151, 60 P. 510; State v. Imlay, 22 Utah 156, 61 P. 551. The details of her complaint are admissible when brought out on cross-examination or impeachment of tes- timony as to any complaint having been made. — Sexton v. State, 91 Ark. 589, 121 S. W. 1075; Territory v. Mal- donado, 9 N. M. 629, 58 P. 350; State v. Werner, 16 N. D. 83, 112 N. W. 60; State v. Apley, 25 N. D. 298, 141 N. Wl 740; State v. Neel, 21 Utah 151, 60 P. 510. STATEMENTS ACCOMPANYING ACTS 95 The state may not show whom the prosecutrix named in making her complaint. — People v. Wilmot, 139 Cal. 103, 72 P. 838; State v. Daugherty, 63 Kan. 473, 65 P. 695; State v. Whitman, 72 Or. 415, 143 P. 1121; Contra, Hamer v. State, 104 Ark. 606, 150 S. W. 142. Arkansas. Testimony of an officer that the woman de- scribed the person committing the offense, in consequence of which he arrested defendant, is inadmissible. — Davis v. State, 63 Ark. 470, 39 S. W. 356. California. Details of the woman's complaint are admis- sible, to rehabilitate the witness. — People v. Graham, 21 Cal. 261. New Mexico. When details of the woman's complaints to others have been elicited on cross-examination, they may be more fully developed on redirect examination. — State v. Ellison, 19 N. M. 428, 144 P. 10. Utah. Prosecutrix may testify to whom she made her complaint, and where. — State v. Neel, 21 Utah 151, 60 P. 510. Condition and Appearance. Her appearance, condition and demeanor immediately after the assault, admissible. — State v. Neil, 13 Ida. 539, 90 P. 860; State v. Sargent, 32 Or. 110, 49 P. 889. Physical condition next morning, admissible. — Jacobs v. State, 66 Tex. Cr. It. 146, 146 S. W. 558. Texas. Evidence of mental condition of prosecutrix soon after, admissible.— Kearse v. State, (Tex. Cr. R.), 88 S. W. 363. • Delay In Making Complaint. Complaints must be shown to have been made at the first opportune time, in order to render them admissible, unless excused by circumstances: Arizona: Trimble v. Territory, 8 Ariz. 273, 71 P. 932 (excused by intimidation and lack of opportunity). Montana: State v. Peres. 27 Mont. 35S, 71 P. 162 (rule does not apply where female was under age of consent). Texas: Adams v. State. 52 Tex. Cr. R. 13, 105 S. W. 197 (little girl, complaint day after, admissible); Ortiz v. State, 68 Tex. Cr. R. 608, 151 S. W. 1059 (day after, made in sufficient time, when prevented by force); Roberson v. State, (Tex. Cr. R.), 49 S. W. 398 (on first opportunity, to mother); Duckett v. State, 68 Tex. Cr. R. 331, 150 S. W. 96 STATEMENTS ACCOMPANYING ACTS 1177 (complaint to teacher at recess and to parents at night, admissible). Too long a delay, unexcused, renders the fact of com- plaint inadmissible: California: People v. Lambert, 120 Cal. 170, 52 P. 307; People v. Corey, 8 Cal. App. 720, 97 P. 907 (three weeks after) ; People v. Gonzalez, 6 Cal. App. 255, 91 P. 1013 (six weeks after). Texas: Thompson v. State, 33 Tex. Cr. R. 472, 26 S. W. 987 (delay of a year); Cowles v. State, 51 Tex. Cr. R. 498, 102 S. W. 1128. Washington: State v. Griffin, 43 Wash. 591, 86 P. 951 (months after). Delay in making complaint may be explained by evi- dence of threats or other prevention. — Salazar v. State, 55 Tex. Cr. R. 307, 116 S. W. 819; Pettus v. State, 58 Tex. Cr. R. 546, 126 S. W. 868. The fact that delay occurred in making complaint bears upon the weight and not the admissibility of the testi- mony.— Trimble v. Territory, 8 Ariz. 281, 71 P. 932; State v. Peres, 27 Mont. 358, 71 P. 162; Roberson v. State, (Tex. Cr. R.), 49 S. W. 398. California. "The complaint by the victim of rape which the law permits to be introduced in evidence is one which follows so closely upon the occurrence as to be practically the first opportunity available to tell one in whom she has confidence. It is the fact of complaint immediately that is supposed to show that she was an unwilling vic- tim; it being presumed that an innocent woman, so as- saulted and outraged, will complain of the injury at the earliest practicable moment." — People v. Gonzales, 6 Cal. App. 255, 91 P. 1013. Where prosecutrix did not make complaint for two months, and then only when she was arrested, defendant is entitled to prove what induced her to disclose her charge to the officers. — People v. Costa, 24 Cal. App. 739, 142 P. 508. Colorado. Complaint made from one to seven days there- after by letter, recounting a series of disgraceful acts, extending over several years, inadmissible. — Bigcraft v. People, 30 Colo. 298, 70 P. "417. STATEMENTS ACCOMPANYING ACTS 97 North Dakota. Declarations by prosecutrix under the age of consent, made more than a year after the alleged of- fense, and elicited involuntarily by questions of a com- mittee of school officials investigating her moral conduct, are inadmissible.— State v. Mackey, 31 N. D. 200, 153 N. W. 982. Utah. The fact that the prosecutrix complained of the outrage immediately, or delayed making such a complaint a considerable time, bears upon the credibility of her testimony.— State v. Halford, 17 Utah 475, 54 P. 819. STATEMENTS MADE IN PERSON'S PRESENCE. Statements made in the presence of a party who does not contradict or deny them, though he has opportunity to do so without intimidation or interruption, are admis- sible.— Humphries v. McCraw, 9 Ark. 91; Hight v. Klin- gensmith, 75 Ark. 218, 87 S. W. 138; Pepper's Estate, In re, 158 Cal. 619, 112 P. 62; Rick's Estate, In re, 160 Cal. 467, 117 P. 539; Musfelt v. State, 64 Neb. 445, 90 S. W. 237; Stowell v. Hall, 56 Or. 256, 108 P. 182; Humphrey v. State, 47 Tex. Cr. R. 262, 83 S. W. 187; Nowlin v. State, (Tex. Cr. R.), 175 S. W. 1070. Arkansas. Where at the time defendant was arrested he was aroused at his home and staggered around the room as if drunk, it was improper to admit evidence of his grandmother's remarks unreplied to as to where defend- ant had thrown his pistol and what he said at the time he threw it away, in the absence of proof that he heard the remarks.— Bloomer v. State, 75 Ark. 297, 87 S. W. 438. California. The doctrine of acquiescence does not apply to proceedings on trials of controversies, because it is not the right or duty of a party to interrupt the order of proceedings in such cases by denials or contradictions, and his silence cannot, therefore, be deemed an admis- sion.— Wilkins v. Stidger, 22 Cal. 231. While a statement made in the presence of accused is not admissible as being itself evidence of any fact nar- rated in such statement, it is admissible, primarily, for the purpose of showing that the accused acquiesced in the statement either by express assent or silence, or by such conduct as fairly implied assent. — People v. Mallon, 103 Cal. 513, 37 P. 512. That defendants made no claim to certain water rights 98 STATEMENTS ACCOMPANYING ACTS in a conversation relating thereto is relevant. — Williams v. Harter, 121 Cal. 47, 53 P. 405. Statement by plaintiff, at the time he was counting out money, made in the presence of defendant who remained silent, that he was loaning defendant the money, is ad- missible.— Tibbet v. Sue, 125 Cal. 544, 58 P. 160. Failure to deny accusation of murder, admissible. — People v. Amaya, 134 Cal. 531, 66 P. 794. That defendant made no claim to a ditch running across his land when plaintiff inquired as to its ownership is admissible. — Bashore v. Mooney, 4 Cal. App. 276, 87 P. 553. Declarations made by a testatrix in the presence of her daughter, showing an attempt by the latter to unduly in- fluence the mother against a son, and not denied or ob- jected to by the daughter, are admissible. — Snowball's Estate, In re, 157 Cal. 301, 107 P. 598. Colorado. The fact of failure to answer a letter sent by a third person is inadmissible. — Lee-Clark-Andreesen Hard- ware Co. v. Yankee, 9 Colo. App. 443, 48 P. 1050. Kansas. Declarations of a party in his own favor, though made to the opposing party, are not per se evidence for himself and are not admissible when the opposing party at the time they were made by words or conduct denied their truth. — Backus v. Clark, 1 Kan. 303. New Mexico. The correspondence between the president and the secretary and the treasurer of a corporation and a person having contemporary business transactions with it, in relation to such transactions, is admissible on the question of acquiescence on the part of the corporation in the statement of the nature and terms of the transac- tions which are the subject of the correspondence made by the other party to them in his letters to such officers. — Eagle Mining & Imp. Co. v. Hamilton, 14 N. M. 271, 91 P. 718. North Dakota. Statement by seller impeaching the good faith of the sale, made in the presence of the buyer and a creditor of the seller, is admissible against the buyer when he did not contradict the statement. — O. S. Paulson Mercantile Co. v. Seaver, 8 N. D. 215, 77 N. W. 1001. Oregon. Statements inadmissible, where the party to be charged was twelve feet away, but around the corner of STATEMENTS ACCOMPANYING ACTS 99 a vault, and it did not appear that he heard. — Josephi v. Furnish, 27 Or. 260, 41 P. 424. "Defendant could not be bound by his silence in court. He was not a party to that cause, and had no control or management of the case from the standpoint of either plaintiff or defendant; and it was not only not his duty to speak in refutation of what was then being given in evi- dence, but it was his duty in deference to the court and the rules governing its proceedings when in progress of a trial, not to speak in interruption thereof." — Caseday v. Lindstrom, 44 Or. 309, 75 P. 222. A party to a suit is not bound by, or held to admit as true, every statement made by his witnesses during the trial of a cause, because he does not deny or contradict them at the time. — Patty v. Salem Flouring Mills Co., 53 Or. 350, 96 P. 1106. Declarations made by third persons in the presence of a party who had an opportunity, without intimidation or interruption, to contradict or explain their statements, are admissible.— Stowell v. Hall, 56 Or. 256, 108 P. 182. South Dakota. The silence of a party against whom dam- aging facts are called out in evidence is not equivalent to an admission of their truthfulness, but is ground of un- favorable presumption against him. — Enos v. St. Paul Fire & Marine Ins. Co., 4 S. D. 639, 57 N. W. 919. Texas. To render admissible as admissions conversation between others in a party's presence, it must be made to appear with reasonable certainty that he not only heard but understood the conversation. — Cabiness v. Holland, (Tex. Civ. App.), 30 S. W. 63. That defendant, when accused of killing deceased, stood mute, is relevant. — Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761. "That negro killed that woman," uttered by a bystander when a grave was being dug for deceased, is not admis- sible against accused who said nothing in reply, but dropped his head, got up and walked around the grave, where it appears that all the party were negroes, and there being nothing which particularized defendant so as to require him to respond.— Hanna v. State, 46 Tex. Cr. R. 5, 79 S. W. 544. 100 STATEMENTS ACCOMPANYING ACTS Failure of one of the subscribing witnesses to a will to furnish any information about it to appraisers of the estate in question, when inquiries were made by them about the papers left by decedent, is admissible on the question as to whether such will was a forgery, where it appears that the will was in such person's possession at the time.— Dolan v. Meehan, (Tex. Civ. App.), 80 S. W. 99. Resolution of the board of directors of a bank" to whose rights a firm consisting of defendant and others had suc- ceeded, admissible to show the partnership, where defend- ant was present and voted, making no objection thereto. — Hoskins v. Velasco Nat. Bank, 48 Tex. Civ. App. 246, 107 S. W. 598. The mere silence of one. when facts are asserted in his presence, is no ground for presuming his acquiescence, unless the conversation was addressed to him under such circumstances as to call for a reply. — Bass v. Tolbert, 51 Tex. Civ. App. 437, 112 S. W. 1077. Utah. Hanging his head and looking on ground when de- ceased's father made an exclamation over the body. — State v. Mortensen, 26 Utah 312, 73 P. 562. Washington. Where plaintiff and one riding with her were both injured by an accident at a street car crossing, a statement by the companion of the driver, made just after recovering consciousness as to the cause of the ac- cident, is inadmissible as an admission by acquiescence, where plaintiff had been working to bring her back to con- sciousness, and was herself seriously injured and hyster- ical.— McCord v. Seattle Electric Co., 46 Wash. 145, 89 P. 491. NOTE V. (To Article 8.) The items of evidence included in this article are often referred to by the phrase "res gestae," which seems to have come into use on account of its convenient obscurity. The doctrine of "res gestae" was much discussed in the case of Doe v. Tatham (p. 79, &c). In the course of the argument Bosanquet, J., observed, "How do you translate res gestae? gestae, by whom?" Parke, B., afterwards observed, "The acts by whomsoever done are res gestae if relevant to the STATEMENTS ACCOMPANYING ACTS 101 matter in issue. But the question is what are relevant?" (7 A. & E. 353.) In delivering his opinion to the House of Lords, the same Judge laid down the rule thus: "Where any facts are proper evidence upon an issue [i. e. when they are in issue, or relevant to the issue] all oral or written declara- tions which can explain such facts may be received in evi- dence." (Same case, 4 Bing. N. C. 548.) The question asked by Baron Parke goes to the root of the whole subject, and I have tried to answer it at length in the text, and to give it the prominence in the statement of the law which its Im- portance deserves. — 1 Besides the cases cited in the illustrations, see cases as to statements accompanying acts collected in 1 Ph. Ev. 152- 157, and T. E. ss. 521, 528. (3 Wigmore Ev. §§ 1745-1765.) I have stated, in accordance with R. v. "Walker, 2 M. & R. 212, that the particulars of a complaint are not admissible; but I have heard Willes, J., rule that they were on several occasions, vouching Parke, B., as his authority. R. v. Walker was decided by Parke, B., in 1839. Though he excluded the statement, he said, "The sense of the thing certainly Is that the jury should in the first instance know the nature of the complaint made by the prosecutrix, and all that she then said. But for reasons which I never could understand, the usage has obtained that the prosecutrix's counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner's conduct towards her, leav- ing the prisoner's counsel to bring before the jury the par- ticulars of that complaint by cross-examination." Baron Bramwell has been in the habit, of late years, of ad- mitting the complaint itself. The practice is certainly in ac- cordance with common sense. 1 (Res gestae are the circumstances, facts and declara- tions which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. Carter v. Bu- channan, 3 Ga. 513.) 102 FACTS NECESSARY TO EXPLAIN Article 9. facts necessary to explain or introduce relevant facts. Facts necessary to be known to explain or in- troduce a fact in issue or relevant or deemed to be relevant to the issue, or which support or re- but an inference suggested by any such fact, or which establish the identity of any thing or per- son whose identity is in issue or is or is deemed to be relevant to the issue, or which fix the time or place at which any such fact happened, or which show that any document produced is genu- ine or otherwise, or which show the relation of the parties by whom any such fact was tran- sacted, or which afforded an opportunity for its occurrence or transaction, or which are neces- sary to be known in order to show the relevancy of other facts, are deemed to be relevant in so far as they are necessary for those purposes re- spectively. Illustrations. (a) The question is, whether a writing published by A of B is libellous or not. The position and relations of the parties at the time when the libel was published may be deemed to be relevant facts, as introductory to the facts in issue. The particulars of a dispute between A and B about a matter unconnected with the alleged libel are not deemed to be relevant under this article, though the fact that there was a dispute may be deemed to be relevant if it affected the relations between A and B. — 1 (b) The question is, whether A wrote an anonymous letter, threatening B, and requiring B to meet the writer at a cer- tain time and place to satisfy his demands. The fact that A met B at that time and place is deemed to be relevant, as conduct subsequent to and affected by a fact in issue. 1 Common practice. FACTS NECESSARY TO EXPLAIN 103 The fact that A had a reason, unconnected with the letter, for being at that time at that place, is deemed to be rele- vant, as rebutting the inference suggested by his presence. — 2 (c) A is tried for a riot, and is proved to have marched at the head of a mob. The cries of the mob are deemed to be relevant, as explanatory of the nature of the transac- tion. — 3 (d) The question is, whether a deed was forged. It pur- ports to be made in the reign of Philip and Mary, and enum- erates King Philip's titles. The fact that at the alleged date of the deed, Acts of State and other records were drawn with a different set of titles, is deemed to be relevant. — 4 (e) The question is, whether A poisoned B. Habits of B known to A, which would afford A an opportunity to admin- ister the poison, are deemed to be relevant facts. — 5 (f) The question is, whether A made a will under undue influence. His way of life and relations with the persons said to have influenced him unduly, are deemed to be relevant facts. — 6 (g) [The question is, whether a certain amount was due for material furnished in the construction of a building. Tes- timony showing the mode in which the books of the material- man were kept and that they were correct, is relevant.] — 7 (h) [The question is, whether the clerk of deceased took an assignment of a mortgage from deceased and foreclosed it for his own use, or whether it was the property of the widow. The fact that about the same time the clerk was her agent for collecting rents is admissible as introductory to the clerk's accounts showing charges against her for the no- tary's fee for acknowledging said assignment, paying record- ing fee and taxes on the mortgage, and also the expenses of the foreclosure proceeding.] — 8 (i) [The question is, whether A embezzled his employer's funds. Evidence tending to show that A had been living in a man- ner not justified by his income, is relevant. A may show the amounts of money received by him and the amount of expense incurred, as conducing to rebut the 2 R. v. Barnard, 19 St. Tri. 815, &c. 3 R. v. Lord George Gordon, 21 St. Tri. 520. 4 Lady Ivy's Case, 10 St. Tri. 615. 5 R. v. Donellan, Wills, Circ. Ev. 192; and see my "Gen- eral View of the Criminal Law," p. 338, &c. 6 Boyse v. Rossborough, 6 H. L. C. 42-58. 7 [West Coast Lumber Co. v. Newkirk, 80 Cal. 275, 22 P. 231.] 8 [Hunt v. Swyney. (Cal.), 33 P. 854.] 104 FACTS NECESSARY TO EXPLAIN inference of his appropriating his employer's money.] — 9 (j) [The question is, whether a real estate mortgage was cumulative merely, or was an entire substitution for an exist- ing chattel mortgage. Testimony as to the value of the land upon which the real estate mortgage was made is relevant, as showing the prob- able sufficiency of the real estate security for the amount due.] — 10 . (k) [The question is, whether defendant had made an un- conditional promise to pay the plaintiff a debt due to the latter from their common debtor, L. The fact that after such alleged promise plaintiff had been trying to negotiate a settlement with L is relevant.] — 11 (1) [The question is, whether A is the one to whom a bounty warrant was issued. His son may testify to that part of his father's diary showing that he took part in the war for the participation in which the bounty warrant was is- sued.] — 12 (m) [The question is, whether intervenor was the owner of the note sued on by plaintiff, or was the owner of a simi- lar one. The receipt of a justice of the peace, with whom he had left his note for collection, is admissible for the purpose of proving its identity.] — 13 (n) [Upon a trial for murder, where it appears that the injuries were inflicted by a certain kind of instrument or weapon, evidence tMat the defendant had such weapon in his possession before the killing is admissible.] — 14 (o) [Upon the question as to whether the defendant was the father of a child, evidence that other persons had connec- tion with prosecutrix at or near the time of gestation is admissible.] — 15 (p) [The question is, whether certain notes were to be paid by the application of purchase money due from plaintiff to defendant on a conveyance of land. The business relations of the parties and the circumstances surrounding them at the time are relevant.] — 16 (q) [The question is, whether money received by plain- tiff by the compromise of a will contest was deposited in a bank or with plaintiff's cousins individually. 9 [Largent v. Beard, (Tex. Cr. App.), 56 S. W. 620.] 10 [Cortelyou v. McCarthy, 37 Neb. 742, 56 N. W. 620.] 11 [Cross v. Kistler, 14 Colo. 571, 23 P. 903.] 12 [Minor v. Lumpkin, (Tex. Civ. App.), 29 S. W. 799.] 13 [Hall v. Stancell, 3 Tex. 400.] 14 [Morgan v. Territory, 16 Okl. 530, 85 P. 718.] 15 [Stoppert v. Nierle, 45 Neb. 105, 63 N. W. 382.] 16 [Holman v. Raynesford, 3 Kan. App. 676, 44 P. 910.] FACTS NECESSARY TO EXPLAIN 105 Evidence that one of the cousins advised plaintiff to con- test the will, that the money when received was divided be- tween plaintiff's two cousins, and that they personally kept an account with plaintiff and remitted various amounts to him on demand from time to time, is relevant.] — 17 (r) [The question is, whether accused had such defect of mind as not to know the nature of the act with which he was charged. Testimony of his mother that she had another son, just two years older than defendant, who lived to be 8 years old, and was, all his life, an imbecile, is relevant.] — 18 (s) [A company was organized in Texas for the purpose of invading Mexico and killed a deputy sheriff to prevent his informing against them. A red flag with the words, "The Liberal Party, Mexico, Land and Liberty," emblazoned thereon, and a bugle found at the camp, were admissible to show the nature of the en- terprise.] — 19 (t) [The question is, whether defendants executed a cer- tain promissory note, assigned by the payee, plaintiff. A printed notice, bearing a photograph of the payee, and offering a reward for his apprehension because of his con- nection with swindling a bank, is irrelevant.] — 20 FACTS NECESSARY TO EXPLAIN OR INTRODUCE. California. Where execution of a note and a receipt ap- pear to have been one transaction the receipt and oral testimony to connect it with the note are admissible to prove the receipt to have been the only consideration. — Talmadge v. Stretch, 65 Cal. XX, 4 P. 15. Colorado. The question being whether plaintiff had been employed to find a purchaser for certain premises, or a lessee, evidence that defendant, after the employment of plaintiff, had refused to lease to a third person, was irrele- vant.— Donley v. Bailey, 48 Colo. 373, 110 P. 65. * Kansas. Where the rights of all the parties to certain real estate are derived from several deeds of trust made to one W. T., and these deeds refe^to a certain will of one I. T., and also to a certain Record of a court in Ken- 17 [Chamberlain v. Chamberlain Banking House, (Neb.), 93 N. W. 1021.1 18 [Shaeffer v. State, 61 Ark. 241, 32 S. W. 679.] 19 [Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1133.] 20 [Sanford v. Craig, 52 Neb. 483, 72 N. W. 864.] 106 FACTS NECESSARY TO EXPLAIN tucky where said will was probated, as showing the na- ture and character of the trust created by said deeds, it was proper to allow said will and record to be intro- duced in evidence, although the will had never been pro- bated.— Collier v. Blake, 14 Kan. 250. Texas. A fact is admissible in evidence, though it would not prove the matter in issue, where it is a necessary ingredient in such proof and constitutes an indispensable link in the chain of evidence. — Neill v. Keese, 5 Tex. 23. A deposition, inadmissible because the deponent's knowl- edge was derived from, a letter and statement thereto at- tached and made a part thereof, may be read as explan- atory of the letter and statement which were relevant. — Missouri Pac. Ry. Co. v. Gernan, 84 Tex. 141, 19 S. W. 461. The question being, whether accused killed his step- son without justifiable cause, testimony that his wife, at the time of the homicide, said to him, "You have killed my darling boy," to which the defendant replied, "God damn your darling boy," is admissible, his expression showing his animus, and hers being necessary for a full understanding of his declaration. — Jennings v. State, 42 Tex. Cr. R. 78, 57 S. W. 642. When a part of a conversation is introduced by one party, such other parts of the same conversation as ex- plain the part admitted are admissible, for the purpose of enabling the jury to understand the meaning of the entire conversation. — International & G. N. R. Co. v. True, 23 Tex. Civ. App. 523, 57 S. W. 977. Washington. Upon the issue as to whether the assignee of a lease had reassigned, it is permissible to show what the assignee did with the lease and premises described therein.— Tibbals v. Iffland, 10 Wash. 451, 39 P. 102. SUPPORTING INFERENCE SUGGESTED BY FACTS. Colorado. In a suit for commission on the sale of cer- tain property, defendant denied the making of any con- tract of employment. In support of this testimony he could show that, prior to the time of the alleged contract, he had given an option on the property which did not expire for several months, to parties who were able and willing to buy at the price named. — Dexter v. Collins, 21 Colo. 455, 42 P. 664. FACTS NECESSARL TO EXPLAIN 107 In an action to cancel certain instruments alleged to have been procured from plaintiff while under duress, tes- timony that immediately after the execution of the instru- ments plaintiff was confined to his bed because of a shock to his nervous system was admissible as tending to show his mental condition immediately after the transaction. — McClelland v. Bullis, 34 Colo. 69, 81 P. 771. REBUTTING INFERENCE. Rebuttal by defendant of testimony that his confession was voluntary, see Art. 21. California. As a circumstance tending to show that de- fendant was the person committing a robbery, evidence was admitted that certain boot marks of peculiar char- acteristics were found the day after at the place of the robbery, and were traced for about eight miles to a gate leading to a corral at his home. Defendant is permitted to prove that on the third day after the robbery, at a place more distant than defendant's residence, but within three days' travel, two men other than defendants were seen, and that a boot worn by one of them left marks pre- cisely similar to those found on the trail. — People v. Myers, 70 Cal. 582, 12 P. 719. Where a mortgagor sought to enjoin the enforcement of a deficiency judgment taken by default, a conversation between the mortgagor and a third person in the absence was admissible, where it explained plaintiff's failure to appear.— Herd v. Tuohy, 133 Cal. 55, 65 P. 139. To rebut a claim of contributory negligence in jump- ing from a car, evidence that others who remained on the car were injured is relevant. — Fogel v. San Fran- cisco & S. M. Ry. Co., (Cal.), 42 P. 565. Idaho. Where evidence of the flight of accused is given, he may submit evidence tending to explain his flight. — State v. Baird, 13 Ida. 29, 88 P. 233. Montana. The fact that defendant's house was malic- iously burned a few days before he killed deceased, is not admissible, where it does not appear that defendant par- ticipated in the burning. — State v. Gay, 18 Mont. 51, 44 P. 411. Oregon. In rebuttal of a presumption of insolvency, a de- 108 FACTS NECESSARY TO EXPLAIN fendant may introduce assessment books showing prop- erty assessed to him as reputed owner. — Beekman v. Ham- lin, 23 Or. 313, 31 P. 707. Where evidence of similar offenses is introduced to show motive and fraudulent intent, defendant may explain the transactions referred to. — State v. Germain, 54 Or. 395, 103 P. 521. Texas. The fact that in defendant's gun and in the body of deceased three sizes of shot were found being relevant to the guilt of defendant, he may show that mixed shot were in common use in that vicinity, as tending to rebut the inference of guilt. — Cooper v. State, 23 Tex. 343. Where tax books are introduced in evidence as an ad- mission of plaintiff's valuation of his property claimed to be damaged by defendant, he may show in rebuttal that the assessor set the valuation.— Bayer v. St. Louis, S. F. & T. R. Co., 97 Tex. 107, 76 S. W. 441. Evidence that plaintiff suing for personal injuries, and her father, were too poor to employ a physician is rele- vant to explain the fact, developed on cross-examination, that no physician had been employed. — Pecos & N. T. Ry. Co. v. Williams, 34 Tex. Civ. App. 100, 78 S. W. 5. Where defendant has introduced evidence of threats by deceased as indicating who was the aggressor, the state may rebut by showing a changed state of mind to- wards defendant on the part of deceased. — State v. Howe, (Tex. Cr. R.), 177 S. W. 497. ESTABLISHING IDENTITY. Presumption of identity of person from identity of name, see Driver v. Lanier, 66 Ark. 126, 49 S. W. 816; Lee v. Murphy, 119 Cal. 364, 51 P. 549; Woolsey v. Williams, 128 Cal. 552, 61 P. 670; Rupert v. Penner, 35 Neb. 587, 53 N. W. 598. California. When, as a circumstance to show that de- fendant was present at the scene of the crime, boot- marks of peculiar characteristics were traced from the scene to near the residence of defendant, evidence that a man other than defendant was seen in the vicinity wearing a boot which left precisely similar marks was erroneously excluded. — People v. Myers, 70 Cal. 582, 12 P. 719. PACTS NECESSARY TO EXPLAIN 109 Measurements of footprints in the vicinity of the body of the victim, made two weeks after the commission of the murder, is admissible. — People v. McCurdy, 68 Cal. 576, 10 P. 207. Acts of defendant on coming to the house of witness a few days before a murder, carrying a sack similar to one found in a thicket near the scene of the murder, admitted to identify the murderer. — People v. Ebanks, 117 Cal. 435, 49 P. 1049. Evidence of comparison of footprints found near the scene of crime with the measurements and appearance of shoes worn by defendant is relevant to identify the cul- prit.— People v. Rowell, 133 Cal. 39, 65 P. 127. Kansas. That a team, wagon and horses going over a certain route the day after a horse was stolen corres- ponded with those of defendant, as did a led horse with the one stolen, was admissible to identify defendant as the thief.— State v. Folwell, 14 Kan. 105. Photograph of a deceased, proven to be a good likeness, is admissible for purpose of comparison with child in court, to prove paternity. — Shorten v. Judd, 56 Kan. 43, 42 P. 337. Where an offense is committed in the darkness, a wit- ness who did not distinguish the features but did hear the voice of the one who committed the offense, may testify that the defendant was the offender, and that he recog- nized him by his voice. — State v. Herbert, 63 Kan. 516, 66 P. 235. Montana. Testimony as to the similarity of laundry marks on clothing left by deceased in his trunk to those found on clothing in a valise which deceased took away with him and which was in the possession of accused after the homicide, admitted to identify accused as the murderer. — State v. Lucey, 24 Mont. 295, 61 P. 994. A photograph is admissible to identify a person. — State v. Jones, 48 Mont. 445, 139 P. 441. Where a photograph was properly admiBsible to iden- tify accused, the fact that it bore evidence that it was taken while he was an inmate of a prison in another state is not sufficient to exclude it. — State v. Jones, 48 Mont. 445, 139 P. 441. Nebraska. In a prosecution for arson, evidence describ- 110 FACTS NECESSARY TO EXPLAIN ing the shoes worn by the accused and footprints found near the place where the crime was committed is com- petent for the purpose of identification.— Heidelbaugh v. State, 79 Neb. 499, 113 N. W. 145. The wreck which it was alleged the prisoner caused by displacing the fixtures of a railway track occurred on a Thursday. The evidence against him was largely circum- stantial. It was competent for the state to show that the prisoner was possessed of a superstitious belief that Thursday was a lucky day for him and that anything he attempted upon that day would succeed, — as this evidence tended to identify the prisoner as the man who displaced the fixtures of the railroad track. — Davis v. State, 51 Neb. 301, 70 N. W. 984. Oklahoma. Evidence which tends to identify the person committing an offense is admissible, though it shows the commission of another and distinct offense. — Dykes v. State, 11 Okl. Cr. 602, 150 P. 84. Oregon. Declarations of a person since deceased as to his past life and history are admissible to identify him as the person whose past life and history was as thus described.— Young v. State, 36 Or. 417, 59 P. 812. Texas. Evidence that the wadding in one of the barrels of defendant's gun was similar to wadding found in the yard of the victim of a homicide after the murder is ad- missible. — Simms v. State, 10 Tex. App. 131. Upon an issue as to whether a deceased person had been the husband of a certain widow, testimony is admis- sible that the brother of the widow had administered on the estate of a person of the same name as deceased. — Red River Cattle Co. v. Wallace, (Tex. Civ. App.), 33 S. W. 301. Declarations of a person who is now dead, or from the circumstances such an inference can be drawn, are ad- missible to prove his identity. — Morgan v. Butler, 23 Tex. Civ. App. 470, 56 S. W. 689. Statements of a person as to his birthplace, family con- nections, etc., are admissible to establish identity of de- clarant with the person whose birthplace and family con- nections were as those recited. — Nehring v. McMurrian, 94 Tex. 45, 57 S. W. 943. FACTS NECESSARY TO EXPLAIN 111 A witness may describe tracks made near the scene of the burglary, for the purpose of comparison with those known to be made by accused. — Boyman v. State, 59 Tex. Cr. R. 23, 126 S. W. 1142. See Cordes v. State, 54 Tex. Cr. R. 204, 112 S. W. 943. In a prosecution for burglary, where it appeared in evi- dence that within about a mile from the scene of bur- glary were found tin cans marked Van Camp's Pork and Beans, a bottle marked Jersey Cream Whiskey and stumps of cigarettes, the state may show by the sheriff whether defendant while in jail ate Van Camp's Pork and Beans, drank Jersey Cream Whiskey, or smoked cigarettes.— Bowen v. State, 60 Tex. Cr. R. 595, 133 S. W. 256. Recognition of the voice of accused is a means of prov- ing identity.— Collins v. State, (Tex. Cr. R.), 178 S. W. 345. Utah. Where it was alleged by accused that another per- son had committed the murder in question, the fact that such person did not have blood on his clothing a few hours afterwards is relevant, where it appears that the person committing the murder must have been besmeared with blood.— People v. Thiede, 11 Utah 241, 39 P. 837. Identification of a person by sound of voice must be based upon previous knowledge of such voice. — State v. Knras, 43 Utah 506, 136 P. 788. Washington. It being necessary to show that one accused of burglary was in the vicinity of the house entered a short time before the crime, evidence is admissible that on the day before a safe was blown open in a store about ten miles away, and that certain articles taken therefrom were found on defendant when he was arrested, though such testimony tends to show that accused committed another crime than the one for which he was being tried. —State v. Leroy, 61 Wash. 405, 112 P. 635. Wyoming. Murder. Defendant's assault shortly before on the decedent's father admissible to show identity. — Horn v. State, 12 Wyo. 80, 73 P. 705. 112 PACTS NECESSARY TO EXPLAIN FIXING TIME AND PLACE. California. Evidence of witnesses who testified as to the location of the body of one killed when found and the distance which they measured from that point to the boundary of S. county, is admissible to fix the venue in that county, such distance being within the 500 feet from such county required to fix the venue therein. — People v. Cipola, 155 Cal. 224, 100 P. 252. Colorado. Testimony of a volunteer of the government weather bureau who kept records of the maximum and minimum temperature at a place twenty miles distant from the cabin where a person was found dead from a bullet wound, was admissible to show the probability that ink found not frozen therein was placed there after the murder.— Van Wyk v. People, 45 Colo. 1, 99 P. 1009. Texas. A witness may, in order to fix the time when he had seen defendants together, testify that he first heard of a burglary one morning, and that the night before he had seen defendants together at a place named. — Cas- tenara v. State, 70 Tex. Cr. R. 436, 156 S. W. 1180. RELATION OF PARTIES. California. As a circumstance closely connected in point of time with the parties and with the taking of a watch by accused from prosecuting witness, the fact that a few minutes after they were together a witness noticed ac- cused carrying the cane of prosecuting witness after com- ing away from the latter is admissible as showing the rela- tion of the parties.— People v. Taylor, 136 Cal. 19, 69 P. 292. Evidence of previous or subsequent intercourse between mother and alleged father are competent to show prob- ability of parentage. — Gird's Estate, In re, 157 Cal. 499, 108 P. 505. Nebraska. The circumstances of the parties to the suit, and the position in which they stood when the matter in controversy occurred are proper subjects of evidence. — Blomgren v. Anderson, 4S Neb. 240, 67 N. W. 186. Respective positions of decedent and the engine by which he was injured, shortly after the accident, were ad- missible as res gestae. — Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 1, 78 N. W. 359. FACTS NECESSARY TO EXPLAIN 113 Suit upon a note alleged to have been given by de- ceased. A defense was that deceased, at the date of the note, was then in no business wherein or by reason where- of he could require so large a sum of money. Plaintiff was allowed to prove that some years before deceased had owed her considerable money, and to produce a series of checks payable to him, which had been charged to plain- tiff's account in the bank, the last one of which checks was dated the day before the note. — Gandy v. Bissell's Estate, 3 Neb. (Unof.) 47, 90 N. W. 883. Oregon. One suing for the consideration of a deed exe- cuted by him may, by way of explanation or introduction, show that it was executed to remedy a defective convey- ance executed by his guardian, and introduce a record of the proceedings in the probate court to that end, though they were void. — Stinson v. Porter, 12 Or. 444, 8 P. 454. Texas. Upon the issue as to whether a deed was forged by a certain person, testimony that he and the person named as grantee were often seen together in the land office is admissible. — Stone v. Moore, (Tex. Civ. App.), 48 S. W. 1097. Evidence that a few weeks before the killing, deceased and accused, as partners, had quarreled over the books, is admissible. — Corbitt v. State, 72 Tex. Cr. R. 396, 163 S. \V. 436. Washington. Where fraud is alleged in the procurement of a note or of forgery in its execution, a very large lati- tude is allowed in admitting testimony to show the rela- tions of the parties. — Crane v. Dexter, H. & Co., 5 Wash. 479, 32 P. 223. Upon the question as to whether ;i mortgagor deposited the proceeds of the sale of mortgaged sheep, pelts and wool with a hank conducted by the holder of a first mort- gage and his brother, as partners, who wrongfully per- mitted the mortgagor to divert the money to other pur- poses than the satisfaction of defendant's mortgage, where- by plaintiff lost his security, evidence is admissible, as showing the relation of parties, that the mortgagor depos- ited money other than such proceeds, receiving credit in a single running account, and checks drawn by the mort- gagor in favor of plaintiff, defendant and other parties. 114 FACTS NECESSARY TO EXPLAIN were relevant. — Presby v. Melgard, 48 Wash. 689, 94 P. 641. OPPORTUNITY. Arkansas. As showing that defendant could not have been the murderer of one who was killed at 11 o'clock at night, evidence is relevant that accused was at his own home seven miles away at a late hour on the same night. — Kinnemer v. State, 66 Ark. 206, 49 S. W. 815. California. The opportunity to commit an offense can have no weight apart from other circumstances, unless it excludes all real opportunity for its commission, and, standing alone, is insufficient to sustain a conviction. — People v. Tarbox, 115 Cal. 57, 46 P. 896. In a murder trial, where it was claimed that deceased was killed by a mob which took him from the custody of defendants as officers of the law, it was proper to intro- duce evidence showing that the community in which the homicide occurred was sparsely settled and to show the whereabouts of a number of persons at the time. — Peo- ple v. Van Horn, 119 Cal. 323. 51 P. 538. Texas. Where it was in evidence that prior to an alleged offense defendant was in a wagon some distance in the rear of three wagons in a long lane, and overtook the other wagons in the lane after the commission of the of- fense, he was entitled to offer the result of experiments showing that he could not have committed the offense and afterwards overtaken the wagons. — Clark v. State, 38 Tex. Cr. R. 30, 40 S. W. 992. FACTS NECESSARY TO SHOW RELEVANCY OF OTHER FACTS. California. On a plea of insanity evidence is admissible of insanity or mental unsoundness of accused's near rela- tives.— People v. Smith, 31 Cal. 466; State v. Fetter, 25 Iowa 67. Where a witness was called for the purpose of proving threats by the deceased made in a conversation with wit- ness, what the witness said in the course of such conver- sation is admissible, in order to show the true meaning and significant of what deceased said. — People v. Phelan, 123 Cal. 551, 56 P. 424. Nebraska. A witness may testify as to the means em- ployed to identify the property which he was instructed SIMILAR BUT UNCONNECTED FACTS 115 to seize to be used as evidence in a criminal case. — Rus- sell v. State, 66 Neb. 497, 92 N. W. 751. Texas. An order of court for the sale of land is admis- sible as laying the foundation for proof of a legal and valid sale thereunder. — Neill v. Keese, 5 Tex. 23. CHAPTER III. OCCURRENCES SIMILAR TO BUT UNCONNECTED WITH THE FACTS IN ISSUE, IRRELEVANT EXCEPT IN CERTAIN CASES. Article 10.* similar but unconnected facts. A fact which renders the existence or non-ex- istence of any fact in issue probable by reason of its general resemblance thereto and not by reason of its being connected therewith in any of the ways specified in Articles 3-9, both inclusive, is deemed not to be relevant to such fact except in the cases specially excepted in this chapter. niustracions. (a) The question is, whether A committed a crime. The fact that he formerly committed another crime of the same sort, and had a tendency to commit such crimes, is irrelevant. — 1 (b) The question is, whether A, a brewer, sold good beer to B, a publican. The fact that A sold good beer to C, D, and E, other publlaans, is irrelevant — 2 (unless it is shown that the beer sold to all is of the same brewing). — 3 (c) [The question is, whether A committed larceny under a conspiracy to steal horses to be sold by him. 1 R. v. Cole. 1 Phi. Ev. 508 (said to have been decided by all the judges in Mich. Term, 1810). 2 Holcombe v. Hewson, 2 Camp. 391. 3 See Illustrations to Article 3. * See Note at end of Article. 116 SIMILAR BUT "UNCONNECTED FACTS Evidence of stealing iher horses by co-conspirators and disposal of them by defendant is relevant.] — 4 (d) [The question is, whether A made and uttered a fic- titious order for the payment of money. The fact that he wrote a check under an assumed name is irrelevant.] — 5 (e) [The question is, whether a certain fire was caused by sparks from defendant's engine. The fact that other engines of defendant had been the cause of fires near the track is relevant.] — 6 (f) The question is, what is the value of services of one not in the real estate brokerage business who assists in the sale of property. The customary commissions of persons in such business is relevant.] — 7 (g) [On a question as to the profits of a business for the year 1906, the matter of the profit or loss of 1905 is im- material.] — 8 (h) [The question is, whether defendant had satisfied a note by paying plaintiff's expenses on a trip to Europe, or whether plaintiff accompanied defendant on the trip as a guest. Evidence that on other occasions defendant had invited plaintiff to visit her and had paid her hotel bills and travel- ing expenses is relevant.] — 9 (i) [The question is, whether A was negligent on a cer- tain occasion. The fact that he had been negligent on other occasions is irrelevant.] — 10 (j) [The question is, whether cotton seed meal sold by defendant to plaintiff to be fed to cattle was unwholesome, whereby his cattle were injured. Evidence that the cattle of other parties eating meal sold by defendant from the same pile or car were injured, is rele- vant.] — 11 (k) [The question is, whether defendant had sold a note to plaintiff at a great discount. 4 [State v. Allen, 34 Mont. 403, 87 P. 177.] 5 [People v. Arlington, 123 Cal. 356, 55 P. 1003.] 6 [Steele v. Pacific Coast Ry. Co., 74 Cal. 373, 15 P. 851.] 7 [Fleming v. Wells, 45 Colo. 255, 101 P. 66; Geiger v. Kiser, 47 Colo. 297, 107 P. 267.] 8 [Hatzfeld v. Walsh, 55 Tex. Civ. App. 573, 120 S. W. 525.] 9 [Zane v. De Onativia, 139 Cal. 328, 73 P. 856.] 10 [Mulville v. Pacific Mut. Life Ins. Co., 19 Mont. 95, 47 P. 651.] 11 [Houston Cotton Oil Co. v. Trammell, (Tex. Civ. App.), 72 S. W. 244.] SIMILAR BUT UNCONNECTED FACTS 117 Evidence that at about the same time defendant had sold other notes at a great discount is admissible.] — 12 (1) [The question is, as to the character of a storm at a certain place. Testimony of a witness who was 15 or 16 miles seaward at the time, as to its character there, is relevant.] — 13 (m) [The question is, whether the fire which destroyed plaintiff's property was set out by an engine of defendant. The fact that other fires had been set by engines of defend- ant in the vicinity of the fire complained of, is relevant.] — 14 (n) [The question is, whether defendant's list of society people was copied from that of plaintiff. The fact that in 2,800 identical names 39 errors in com- plainant's book appeared in defendant's, is relevant.] — 15 (o) [The question is, whether copyrighted head notes to legal opinions had been infringed. Similarities in language used in 400 instances out of 13,300, of such a nature as to indicate that the editors of the second work could not have used it without making an unfair use of the copyrighted matter in such cases, admitted to show a systematic use of the copyrighted work.] — 16 (p) [The question is, what was the prevailing rainfall at a certain place during a certain period. Records of the nearest weather bureau, located at consid- erable distance from such place, are relevant.] — 17 (q) [The question is, whether the burning of a lot of cord- wood was incendiary. The fact that witness, one of the owners, had taken ex- traordinary precautions because of ten other fires that had occurred in the same locality within a few months, between 6 and 7 o'clock in the evening, was admissible.] — 18 (r) The question is, whether plaintiff's land was inundated by water backing up from defendant's dam at flood time. The fact that others had maintained dams in the stream at the same place, which did not cause water to back up on land now occupied by plaintiff, is irrelevant, where it is not shown that such dams were of the same kind or height, or that they were in the stream at flood time.] — 19 12 [Turner v. Luning, 105 Cal. 124, 38 P. 687.] 13 [Astoria & C. R. R. Co. v. Kern, 44 Or. 538, 76 P. 14.] 14 [Podey v. Northern Pac. Ry. Co., 21 Ida. 713, 123 P. 836.] 15 [List Pub. Co. v. Keller, 14 C. C. A. 213, 30 Fed. 772.] 16 [West Pub. Co. v. Lawyers' Co-op. Pub. Co., 25 C. C. A. 648, 79 Fed. 756.] 17 [Peterson v. Arland, 79 Wash. 679, 141 P. 63.] 18 [State v. McMahon, 17 Nev. 365, 30 P. 1000.] 19 [Crossen v. Gandy, 42 Or. 282, 70 P. 906.] 118 SIMILAR BUT UNCONNECTED FACTS (s) [The question is, whether plaintiff's bookkeeper failed to give credit to defendants for their alleged payment of a note. The fact that he had mistakenly omitted to credit a witness with payment on a certain account is irrelevant.] — 20 (t) [The question is, whether a grain elevator and ap- proach thereto were reasonably safe for teams with loaded wagons to be driven up the approach and into the elevator and unloaded. The fact that notwithstanding many thousands of loads of grain had been received and unloaded during the five years previous to the happening of this accident not a similar acci- dent of a similar kind had ever before occurred, is relevant.] —21 (u) [The question is, whether plaintiff, having, as result of injuries, a form of insanity known as melancholia, was in- capacitated from work thereby. Testimony of the superintendent of an insane asylum that most of the patients therein were incapacitated to do work, is irrelevant.] — 22 (v) [The question is, did defendant agree to pay plaintiffs, as commissions for sale of land, 5 per cent of the proceeds of the sale of certain land at $17 per acre, or all over and above the proceeds of a sale at $17 per acre. Evidence of defendant's dealings with other real estate agents and the price at which he listed the land to them is irrelevant.] — 23 (w) [The question being, what was the actual cost of la- bor and material required to take down a wall and replace it in the condition required by a contract, a bid by certain parties to rebuild the wall was irrelevant.] — 24 .SIMILAR BUT UNCONNECTED OCCURRENCES. In General. Where one is on trial charged with attempting to bribe a member of the city council, it is error to admit evidence of an attempt to bribe another official to do an act which he thought would tend to promote the same scheme. — People v. Sharp, 107 N. Y. 427, 14 N. E. 319, cited with approval in: People v. Glass, 158 Cal. 650, 112 P. 287; also People v. Hurley, 126 Cal. 351, 58 P. 814. 20 [McCown v. Wilson, 91 Ark. 153, 122 S. W. 478.] 21 [Field v. Davis, 27 Kan. 400.] 22 [Western Union Tel. Co. v. Tweed, (Tex. Civ. App.), 138 S. W. 1155.] 23 [J. B. Lloyd & Son v. Kerley, (Tex. Civ. App.), 106 S. W. 696.] 24 [Hulst v. Benevolent Hall Ass'n, 9 S. D. 144, 68 N. W. 200.] SIMILAR BUT UNCONNECTED FACTS 119 California. In an action to recover loss sustained by the burning of a building alleged to have been caused by the negligence of the defendant, evidence on his part tending to show that other buildings in the same town were soon after set on fire by incendiaries is irrelevant. — Drake v. Foster, 52 Cal. 225. Evidence that defendant's driver, who was in charge of a team which injured plaintiff, was a good, first-class driver, careful in handling horses, and that during the four years he had been in the employ of defendant he had never been guilty of any mismanagement or careless- ness in the conduct or care of the team, is inadmissible. — Towle v. Pacific Imp. Co., 98 Cal. 342, 33 P. 207. The question being as to whether a hall was lighted at the time plaintiff called to take an elevator, evidence as to whether it was lighted on other days of the same month at the same time of day was inadmissible. — Muller v. Hale, 138 Cal. 163, 71 P. 81. Upon the question whether defendants have the right to change the location of a ditch carrying water to their premises over plaintiff's land, the fact that they had changed the location of their ditch on the land of another is irrelevant.— Vestal v. Young, 147 Cal. 721, 82 P. 383. Where defendant had only one quality of wheat for sale, evidence of warranties of wheat in sales to other parties is relevant upon the issue of a warranty to plaintiff. — Moody v. Peirano, 4 Cal. App. 411, 88 P. 380. Defendant sued on account of delay in accepting grapes at his winery may show the congested condition and lack of facilities at the winery for accepting grapes, and that other sellers were delayed by reason thereof. — Leonhart v. California Wine Ass'n, 5 Cal. App. 19, 89 P. 847. Testimony as to a crop of sweet potatoes gathered sev- eral years before from the same land which was over- flowed is admissible for the purpose of showing that the land was peculiarly adapted for the cultivation of the crop mentioned. — Dennis v. Crocker-Huffman Land & Water Co., 6 Cal. App. 58, 91 P. 425. Evidence of the condition of other buildings after an earthquake has no tendency to show whether another neighboring building fell from an earthquake before a fire 120 SIMILAR BUT UNCONNECTED FACTS started therein. — Davis v. Connecticut Fire Ins. Co., 158 Cal. 766, 112 P. 549. Colorado. On an issue that a ticket sold by defendant to plaintiff was not good over that portion of road on which plaintiff was attempting to ride, evidence that defendant had sold a similar ticket to another about same time, on which he rode without objection, irrelevant. — Oppenheimer v. Denver & R. G. R. Co., 9 Colo. 320, 12 P. 217. Dissimilarity in different signatures of another person have no tendency to show that there was a variance be- tween signatures of deceased. — Brown v. Tourtelotte, 24 Colo. 204, 50 P. 195. To show the condition of a bath tub by which plaintiff was injured, the condition of all bath tubs of defendant is admissible to show want of care and inspection. — Daniels v. Stock, 23 Colo. App. 529, 130 P. 1031. Kansas. Passenger ejected from train for not procuring ticket before entering, in accordance with alleged rule of carrier. Evidence by plaintiff that the rule was not en- forced and that other persons had paid fare to the con- ductor, admissible. — Brown v. Kansas City, Ft. S. & G. R. Co., 38 Kan. 634, 16 P. 942. Montana. The fact that a stove purchased by plaintiff from defendant is worthless cannot be proved by showing that a stove purchased by another person from defendant, bearing the same trade mark, was worthless. — Lander v. Sheehan, 32 Mont. 25, 79 P. 406. Nevada. Where the overturning of lumber from a car and the consequent injury to plaintiff arose from a defective track, testimony regarding lumber slipping from the car because of insecure loading was inadmissible. — Flodin v. Verdi Lumber Co., 37 Nev. 294, 142 P. 531. North Dakota. Other contracts claimed to be in violation of the statute set up as a defense are Inadmissible. — Sucker State Drill Co. v. Wirtz Bros., 17 N. D. 313, 115 N. W. 844. Oregon. Proof of particular instances in which street cars were operated at a given speed is not relevant to show the speed of a car at the time of an accident. — Wade v. City & Suburban R. Co., 36 Or. 311, 59 P. 875. Texas. Contract between a third person and plaintiffs' SIMILAR BUT UNCONNECTED FACTS 121 landlords, by which water was to be furnished the latter, is immaterial in an action by plaintiffs against their land- lords for breach of contract to furnish water. — Stockton v. Brown, (Tex. Civ. App.), 106 S. W. 427. Evidence of payment of city taxes is no evidence of payment of state and county taxes. — State v. Quillen, (Tex. Civ. App.), 115 S. W. 660. Deeds containing restrictions against the use of prop- erty in other neighboring blocks are admissible as tend- ing to show such restriction in the block in question. — Lowrance v. Woods, 54 Tex. Civ. App. 233, 118 S. W. 551. The fact that fire broke out in cotton loaded on a barge is no evidence that fire was concealed in plaintiff's cotton when it was shipped— S. Samuels & Co. v. Texas & N. O. R. Co., (Tex. Civ. App.), 150 S. W. 291. Evidence that similar work done for other parties was inefficient is inadmissible to show the quality of work done. for defendant. — Randle v. Barden, (Tex. Civ. App.), 164 S. W. 1063. Utah. The mere fact that a person has made certain statements one day to a particular person is not evidence from which it may be inferred that he in fact made the same or similar statements to another person at another time and place. — Ogden Valley Trout & Resort Co. v. Lewis, 41 Utah 183, 125 P. 687. Washington. In an action for damages for ejection from a street car on account of alleged non-payment of fare, the fact that plaintiff had been put off a railroad car for non-payment of fare is irrelevant. — Sprenger v. Ta- coma Traction Co., 15 Wash. 660, 47 P. 17. That other fires occurring in the vicinity of plaintiff's lodging had been caused by an open burner which de- fendant maintained at its mill, admitted. — S. Yamamoto v. Puget Sound Lumber Co., 84 Wash. 411, 146 P. 861. Similarity of Conditions. See "Experiments," infra, this article. California. The character of land upon an adjoining prop- erty has no bearing on the question as to the amount of cream fifty cows would produce, it not being shown that the quality of land on the two ranches was the same. — Converse v. Ferguson, 166 Cal. 1, 134 P. 977. Colorado. Testimony to show payment by defendant to 122 SIMILAR BUT UNCONNECTED FACTS a third person for cattle killed by its trains is inadmis- sible, where there is no proof that they were killed by the same train that killed plaintiff's. — Chicago, R. I. & P. Ry. Co. v. Rhodes, 21 Colo. App. 229, 121 P. 769. Idaho. In determining whether a safe warranted to be fireproof is in fact fireproof, evidence may be received showing that safes made by the same company, of like kind and material and method of construction, had passed through fires and withstood the effects of heat without material injury to their contents, but comparison cannot be made with safes made by other manufacturers, of dif- ferent kind and material and constructed upon different plans and theories. — Barnett v. Hogan, 18 Ida. 104, 108 P. 743. Montana. The fact that silt was not deposited on an- other ranch above plaintiff's is not material to show that plaintiff's meadow was not injured by the acts of defend- ants in handling the waters of a creek, where it is . not shown that the conditions at the two ranches were the same.— Wallace v. Weaver, 47 Mont. 437, 133 P. 1099. Oklahoma. Sales of good hominy to other persons are inadmissible to show the quality of hominy sold to plain- tiff.— T. S. Reed Grocery Co. v. Miller, 36 Okl. 134, 128 P. 271. The report of a factory inspector as to another machine of different style and make from that at which deceased was killed is inadmissible to show the condition of the latter. — Jones v. Oklahoma Planing Mill & Mfg. Co., (Okl.), 147 P. 999. South Dakota. What other artesian wells in the same neighborhood might flow, where there is no showing as to the character of the water-bearing rock, would have no tendency to show that the well in question, with a scant flow, was defectively constructed. — Norbeck & Nicholson Co. v. Mallock, 26 S. D. 54, 127 N. W. 471. Before one article can be used as a standard from which to determine the capacity of a second article, there should be proof of the capacity of the article which is used as the standard. — Fairbanks, Morse & Co. v. Heihn, 29 S. D. 215, 136 N. W. 107. Texas. When it is sought to prove what was made on other lands in order to determine by comparison the SIMILAR BUT UNCONNECTED FACTS 123 character of crop made by a party, such Inquiry should be limited to crops on substantially the same character of lands under the same conditions and character of cul- tivation. — Erp v. Raywood Canal & Milling Co., (Tex. Civ. App.), 130 S. W. 897. The question being whether a certain traction engine would develop a certain horse power, and was defective in material and workmanship, evidence that another trac- tion engine, operated in a field about two miles distant would pull twelve disc plows, while the one in contro- versy was pulling only six, is inadmissible, when it ap- pears that the other engine was of a much greater horse power, was operated by another person, was of a different make, and it was not shown that the soil and other condi- tions were similar. — Southern Gas & Gasoline Engine Co. v. Adams & Peters, (Tex. Civ. App.), 169 S. W. 1143. Washington. In an action for the death of a horse by alleged excessive driving, in a double team with a heavy buggy and four passengers, evidence as to the time con- sumed in driving the same distance with one horse in a light rig is inadmissible. — Welch v. Fransioli, 46 Wash. 530, 90 P. 644. Other Offenses. Proof of an offense dstinct from and wholly disconnected with the particular crime charged is inadmissible. — Peo- ple v. Vidal, 121 Cal. 221, 53 P. 558; People v. Hurley, 126 Cal. 351, 58 P. 814; People v. King, 23 Cal. App. 259, 137 P. 1076; State v. Kirby, 62 Kan. 436, 63 P. 752; Morgan v. State, 56 Neb. 696, 77 N. W. 64; Tippens v. State, (Tex. Cr. R.), 43 S. W. 1000; Lucas v. State, 50 Tex. Cr. R. 219, 95 S. W. 1055; Currington v. State, 72 Tex. Cr. R. 143, 161 S. W. 478; State v. Shockley, 29 Utah 25, 80 P. 865; State v. Strodemier, 40 Wash. 608, 82 P. 915; State v. Hazzard, 75 Wash. 5, 134 P. 514. California. Evidence of the commission of a different of- fense cannot be admitted in proof of the offense for which the defendant is on trial, and all evidence of collateral facts which are incapable of offering a reasonable pre- sumption as to the principal fact in dispute are also ex- cluded.— People v. Glass, 158 Cal. 650, 112 P. 287. Evidence of a different offense may not be given against a person charged with a particular crime, but where the 124 SIMILAR BUT UNCONNECTED FACTS facts concerning the other offense tend to prove the de- fendant guilty of the offense for which he is being tried the rule does not apply. That such evidence tends to prove defendant guilty of another crime does not render it irrelevant if relevant to the charge for which he is on trial.— People v. Glass, 158 Cal. 650, 112 P. 281. Nebraska. On a charge of obtaining goods by false pre- tenses, similar acts in two other cases entirely distinct and separate, are irrelevant. — Cowan v. State, 22 Neb. 519, 35 N. W. 405. Oklahoma. Charge of gaming. Evidence that defendant maintained a gambling house and place where intoxicating liquor was sold, inadmissible. — Baldwin v. State, 11 Okl. Cr. 228, 144 P. 634. As to assaults and adultery, not connected with present charge of carrying concealed weapons, evidence is inad- missible.— Appleby v. State, 11 Okl. Cr. 284, 146 P. 228. Oregon. Where three persons were killed in immediate succession by defendant in one affair, the circumstances and conditions attending the death of any one or more of the individuals killed constitute a part of the res gestae attending the death of any other, and it was proper to admit on the trial for the murder of one the clothing of the others, for the purpose of locating and determining the direction of the gunshot wounds upon their persons, and thereby fixing if possible the direction from which the accused was firing when the other was killed. — State v. Porter, 32 Or. 135, 49 P. 964. Texas. Prosecution for forged utterance. That defend- ant had embezzled other funds of employer, inadmissible. —Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680. The fact that defendant burglarized the store of wit- ness on one night does not tend to prove that he bur- glarized another store of witness in another town on the next night.— McAnally v. State, (Tex. Cr. R.), 73 S. W. 404. Whether defendant had been arrested for swindling and was under bond to answer such charge is immaterial in an action for deceit. — Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98. Proof of extraneous crimes which does not go to show intent, identity or system, or which is not part of the SIMILAR BUT UNCONNECTED FACTS 125 res gestae, is not admissible, if it could only show that the defendant was a criminal generally. — Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 930. Where defendant, arrested for burglary of a box car, claimed that a pair of pants found at his house had been bought by him, evidence that they were obtained by the burglary of another car on a different occasion is admis- sible.— Nowlin v. State, (Tex. Cr. R.), 175 S. W. 1070. Washington. It is not competent to show the commission of another distinct crime by defendant, for the purpose of proving that he is guilty of the crime charged. — State v. Craddick, 61 Wash. 425, 112 P. 491. Other Offenses (Showing Motive or Preparation). Where proof of another offense shows motive or prepa- ration for the offense in question, evidence as to such of- fense is admissible.— Howard v. State, 72 Ark. 586, 82 S. W. 196; People v. Ebanks, 117 Cal. 652, 49 P. 1049; Peo- ple v. Wood, 145 Cal. 659, 79 P. 367; State v. Lancaster, 10 Ida. 410, 78 P. 1081; State v. Franklin, 60 Kan. 798, 77 P. 588; Harmon v. Territory, 15 Okl. 147, 79 P. 765; State v. Robinson, 32 Or. 43, 48 P. 357; State v. Stevens, 16 S. D. 309, 92 N. W. 420; West v. State, 44 Tex. Cr. R. 417, 71 S. W. 967. Arkansas. In a prosecution for murder committed dur- ing a robbery, the fact of a general plan to rob others was admissible. — Ford v. State, 34 Ark. 649. Other Offenses (Showing Commission of Offense Charged). Evidence of other offenses is admissible when it tends to prove the commission of the offense charged, or is con- nected with it as part of the same transaction: Arkansas: Davis v. State, (Ark.), 174 S. W. 567 (other burglaries the same night admitted). California: People v. McGilver, 67 Cal. 55, 7 P. 49 (ar- rest of accused while breaking into another store, and that burglar's tools were found on him) ; People v. Smith, 106 Cal. 73, 39 P. 40 (murder of another person at the same time as deceased) ; People v. Rial, 23 Cal. App. 713, 139 P. 661 (same schemes of obtaining money for fake bet- ting on horse races). Oklahoma: Cross v. State, 11 Okl. Cr. 117, 143 P. 202 (lar- ceny of horses; fact that accused stole them to enable him to depart from the country with a woman other than his 126 SIMILAR BUT UNCONNECTED FACTS wife); State v. Rule, 11 Okl. Cr. 117, 144 P. 807 (filing other false claims with intent to defraud the state). Texas: Hewitt v. State, (Tex. Cr. R. ), 167 S. W. 40 (in- ducing girl to leave the state for purposes of prostitution; fact that accused obtained money from her father to hunt for her, when he knew where she was, admitted) ; Gray v. State, (Tex. Cr. R.), 178 S. W. 337 (abortions on other women, to disprove innocence). Arizona. Extortion by threatening to accuse another of larceny of cow. Fact that defendant stole the cow and compelled prosecuting witness at the point of a gun to kill it admissible as all involved in one transaction. — Lee v. State, 16 Ariz. 291, 145 P. 244. Arkansas. In a prosecution for larceny of a steer, evi- dence to show intent is admissible, that defendant killed and butchered a hog of another at about the same time and near the same place as the steer was, and that both animals were loaded into the same wagon and taken away for sale.— Autrey v. State, 113 Ark. 347, 168 S. W. 556. On a trial for burglary, evidence of acts of defendants during the same night and of nitroglycerine, skeleton keys and other implements admitted, as tending to establish their occupation and purpose. — Davis v. State, (Ark.), 174 S. W. 567. Idaho. Evidence of the common purpose to commit like crimes on other girls and the commission of such offenses by the defendant held admissible under the circumtsances of this case, as incidents in the commission of the common criminal design. — State v. Hammock, 18 Idaho 424, 110 P. 169. New Mexico. Larceny of other cattle composing a herd which accused drove into town for sale, admitted. — State v. Graves, 21 N. M. 556, 157 P. 160; State v. Pino, 21 N. M. 660, 158 P. 131. Texas. That other hides than those of the animals al- leged to have been stolen were found buried in accused's field is admissible. — Watters v. State, (Tex. Cr. R.), 94 S. W. 1038. Washington. Evidence relevant to the crime charged is not inadmissible because it may tend to show the com- mission of another and independent crime. (Evidence of the property taken from H. admissible in prosecution for SIMILAR BUT UNCONNECTED FACTS 127 robbing S., where both were robbed at the same time.) — State v. Conroy, 82 Wash. 417, 144 P. 538. Other Accidents. Colorado. That other persons had tripped on a certain pipe inadmissible to show negligence. — Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 P. 922. Evidence to show that other accidents had occurred from defective sidewalks, inadmissible, unless occurring under substantially the same conditions as to persons and walk. — Griffith v. City & County of Denver, 55 Colo. 37, 132 P. 57. Kansas. In an action against a city to recover damages for injuries received from a fall on a defective sidewalk, it is competent for the plaintiff to show that, while the walk was in the same condition, similar accidents had oc- curred at the same place. — City of Topeka v. Sherwood, 39 Kan. 690, 18 P. 933. Action for injury from negligence. Evidence that others had been injured in same manner, relevant. — Missouri Pac. Ry. Co. v. Neiswanger, 41 Kan. 621, 21 P. 584. Montana. Evidence that other persons had tripped over an irregularity in the sidewalk is relevant, both as show- ing dangerous character and bearing on question of notice.— Pullen v. City of Butte, 45 Mont. 46, 121 P. 878. Oregon. Other accidents inadmissible unless closely con- nected with the accident complained of.— Galvin v. Brown & McCabe. 53 Or. 598, 101 P. 671. Texas. Evidence as to the overflow of other lands not shown to be similarly located nor of the same topography as those overflowed by defendant's embankment, is in- admissible.— Gulf, C. & S. F. Ry. Co. v. Caldwell, (Tex. Civ. App.), 102 S. W. 461. Utah. Other rock falling from roof of tunnel at different times admissible to show character of ground and notice to defendant.— Sargent v. Union Fuel Co., 37 Utah 392, 108 P. 928. Washington. Evidence that the steer running at large which injured plaintiff remained in neighborhood for about ten days thereafter and attacked other persons, and was a "range steer," which steers are generally wild and vic- ious, is relevant.— Harris v. Carstens Packing Co., 43 Wash. 647, 86 P. 1125, 6 L. R. A. (N. S.), 1164. 128 SIMILAR BUT UNCONNECTED FACTS Other Fires. Evidence that engines of defendant had set fires, or had dropped or emitted fire, at other times before or after the occurrence of the fire in question, is relevant; California: Steele v. Pacific Coast Ry. Co., 74 Cal. 373, 15 P. 851. Kansas: Barker v. Missouri Pac. R. Co., 89 Kan. 573, 132 P. 156. Oklahoma: St. Louis & S. F. R. Co. v. Shannon, 25 Okl. 754, 108 P. 401 (engines practically identical in construc- tion); Missouri, O. & G. Ry. Co. v. Gentry, 31 Okl. 579, 122 P. 537 (same). Texas: Freeman v. Nathan, (Tex. Civ. App.), 149 S. W. 248 (other engines emitting sparks). Proof of other fires set by other engines of defendant is inadmissible, where the engine that set the fire is fully identified.— Bradley v. Chicago, B. & Q. R. Co., 90 Neb. 28, 132 N. W. 725; Mussbaum & Scharff v. Trinity & Brazos Valley Ry. Co., (Tex. Civ. App.), 149 S. W. 1083. Arkansas. The fact that other fires had been caused by ignition from a pile of burning refuse of defendant is ad- missible. — Chicago Mill & Lumber Co. v. Ross, 99 Ark. 139, 139 S. W. 632. Idaho. Fact of other fires admissible, where the engines were in as good condition as the one charged with set- ting the fire. — Osburn v. Oregon R. & Nav. Co., 15 Ida. 478, 98 P. 627. Kansas. Proof that other engines of the same company passed over the same road at the same place all the sea- son without causing any fires at or near the place where an engine caused fires by the emission of sparks, under the same conditions of wind, weather, etc., is some proof of negligence on the part of the railroad company with regard to the particular engine which caused the fires. — Atchison, T. & S. F. Ry. Co. v. Stanford, 12 Kan. 354. In an action against a railway company for damages by fire alleged to have been caused by the operation of the road, proof of other fires along the right of way occur- ring at or near the same time under similar conditions is competent as a circumstance tending to show, not only that the railway company was negligent in the operation of its road, but also as tending to show that the fire com- SIMILAR BUT UNCONNECTED PACTS 129 plained of was caused in the manner alleged. — Tuttle v. Missouri Pac. Ry. Co., 86 Kan. 28, 119 P. 370. Nevada. Evidence of other fires occurring in the vicinity within a few weeks previous to the burning charged, and at nearly the same hour of the evening, is admissible as showing that the fire charged was of incendiary origin. — State v. McMahon, 17 Nev. 365, 30 P. 1000. Texas. Proof that a witness had seen fires at other times near the train whose engine was alleged to have caused the fire is inadmissible. — D. H. Fleming & Son v. Pullem (Tex. Civ. App.), 97 S. W. 109. Showing Negligence. The fact that a person to whom negligence is imputed has been guilty of negligent acts on a similar or other occasion is irrelevant: Arkansas: Little R. & M. R. Co. v. Harrell, 58 Ark. 454, 24 S. W. 883 (prior negligent acts of defendant's em- ployee). Idaho: Rumpel v. Oregon Short Line & U. N. Ry. Co., 4 Ida. 13, 35 P. 700 (railroad blockading streets at other times) ; Denbeigh v. Oregon-Washington R. & Nav. Co., 23 Ida. 663, 132 P. 112 (negligence on similar occasions). Montana: Mulville v. Pacific Mut. Life Ins. Co., 19 Mont. 95, 47 P. 651 (practice of deceased in jumping off trains). Texas: Missouri, K. & T. R. Co. v. Johnson, 92 Tex. 380, 48 S. W. 568 (that engineer slept at post and had fre- quently ran by stations) ; Sabine Valley Telephone Co. v. Oliver, 46 Tex. Civ. App. 428, 102 S. W. 925 (failure to de- liver message; other negligent acts admissible). Similar acts of negligence, or habitual negligence not admissible to show contributory negligence of servant. — Southern Kans. R. Co. v. Robbins, 43 Kan. 145, 23 P. 113; Missouri, K. & T. Ry. Co. v. Johnson, 92 Tex. 382, 48 S. W. 568; Id. v. Parrott, 43 Tex. Civ. App. 325, 96 S. W. 950. Arkansas. Evidence of methods of construction of tres- tles by other railroad companies, inadmissible to disprove negligence in construction of the one by the breaking of which an employee was killed. — Jonesboro, L. C. & E. R. Co. v. Minson, 102 Ark. 581, 145 S. W. 215. California. The question being whether plaintiff careless- ly jumped from train while in motion, defendant may 130 SIMILAR BUT UNCONNECTED FACTS show that plaintiff had frequently done the same thing and had been warned of danger. — Craven v. Central Pac. R. Co., 72 Cal. 345, 13 P. 878. Plaintiff injured by alleged faulty breaking of shears for cutting iron may show that other shears had broken, but not that such breaking was caused by faulty construc- tion.— Pacheco v. Judson Mfg. Co., 113 Cal. 541, 45 P. 833. Kansas. Evidence of the practice and usage of others in climbing the ladder of a box car when a train is in motion, such as deceased fell from, is not admissible to prove due care on his part at the time of the accident. — Southern Kan. R. Co. v. Robbins, 43 Kan. 145, 23 P. 113. Texas. When the question is as to whether or not a person has been negligent in .doing or in failing to do a partic- ular act, evidence is not admissible to show that he has been guilty of a similar act of negligence, or even habit- ually negligent upon a similar occasion. (Habitual vio- lation of railway company's rules, inadmissible.) — Mis- souri, K. & T. Ry. Co. v. Parrott, 43 Tex. Civ. App. 325, 96 S. W. 950. Other acts of alleged negligence of a telephone com- pany are immaterial in an action for failure to deliver a call to plaintiff. — Sabine Valley Telephone Co. v. Oliver, 46 Tex. Civ. App. 428, 102 S. W. 925. Washington. The fact that defendant was reputed to be a man of sobriety was not admissible to disprove his in- toxication in a specific instance. — Carter v. Seattle, 19 Wash. 597, 53 P. 1102. Evidence of prior negligent acts of the principal him- self are admissible on the issue of want of ordinary care. (Employee suing for injuries sustained by rock torn loose by explosion.) — Allard v. Northwestern Contract Co., 64 Wash. 14, 116 P. 457. SHOWING VALUE. The value of land cannot be shown by proof of inde- pendent sales: Kansas: Kansas City O., L. & T. Ry. Co. v. Weidenmann, 77 Kan. 300, 94 P. 146 (specific or exceptional sale). Nebraska: Union Pac. R. Co. v. Stanwood, 71 Neb. 150, 98 N. W. 656 (independent sales). Oregon: Willamet Falls Canal & Lock Co. v. Kelly, 3 Or. 99 (sheriff's sale); Oregon R. & Nav. Co. v. Eastlack, 54 SIMILAR BUT UNCONNECTED FACTS 131 Or. 196, 102 P. 1011 (price paid by plaintiff in condemna- tions proceedings for other property). Contra: Loloff v. Sterling, 31 Colo. 102, 71 P. 1113. Arkansas. A tax assessment book is admissible to show the value of personal property, and entitled to such credit as the jury gives it. — White v. Beal & Fletcher Grocer Co., 65 Ark. 278, 45 S. W. 1060. The original cost of a building is not evidence of its value at a subsequent time. — Garland County v. Hot Spring County, 68 Ark. 83, 56 S. W. 636. California. Where farm implements have been used, the cost of replacing them with new implements furnishes no measure of their value. — Slade's Estate, In re, 122 Cal. 434, 55 P. 158. Testimony of neighboring farmers growing sweet pota- toes on land similarly situated and of same soil and con- ditions as plaintiff's before its overflowing, as to number of sacks grown the same year, admissible. — Dennis v. Crocker-Huffman Land & Water Co., 6 Cal. App. 58, 91 P. 425. Price paid is incompetent to show market value. — Mattern v. Alderson, 18 Cal. App. 590, 123 P. 972. In determining the value of a newspaper route, the net sum earned therefrom with approximate uniformity and the sum actually paid therefor are relevant in determin- ing its value. — Otten v. Spreckels, 24 Cal. App. 251, 141 P. 224. 228. Colorado. Records of the office of the county treasurer of a county in which property is located, showing the value at which the property was assessed to plaintiff, are inadmissible in an action for conversion of the prop- erty.— Carper v. Risdon, 19 Colo. App. 530, 76 P. 744. Assessment roll inadmissible to prove value. — Ft. Collins Devel. Ry. Co. v. France, 41 Colo. 512, 92 P. 953; Hil dreth v. City of Longmont, 47 Colo. 79, 105 P. 107. Assessor's testimony as to value for taxation inadmis- sible.— Denver & Rio G. R. Co. v. Heckman, 45 Colo. 470, 101 P. 976. Kansas. The amount of damages to a growing crop can not be estimated by the value of the crop when gathered in the fall.— Hays v. Crist, 4 Kan. 350. Montana. Offers for similar lands in the locality irrele- 132 SIMILAR BUT UNCONNECTED FACTS vant on the question of value. — Yellowstone Park R. Co. v. Bridger Coal Co., 34 Mont. 545, 87 P. 963. Amount paid for property subsequently is inadmissible. — Myers v. Bender, 46 Mont. 497, 129 P. 330. Nebraska. In a suit for the reasonable value of plumb- ing material, the price which other plumbers at such place and time charged for such material, irrelevant. — Thompson v. Gaffey, 52 Neb. 317, 72 N. W. 314. In proving value of land at a particular time, a witness cannot show what he was authorized to bid for the land at that time, though authorized to bid for a party finan- cially responsible.— First Nat. Bank v. HacKett, 2 Neb. (Unof.) 512, 89 N. W. 412. The amount of rent fixed in a lease of premises two years before is inadmissible to prove the rental value. — Raapke & Katz Co. v. Schmoeller & Mueller Piano Co., 82 Neb. 716, 118 N. W. 652. Nevada. The value of stock in a ditch company cannot be shown by its value in connection with a certain ranch. — Bowker v. Goodwin, 7 Nev. 135. New Mexico. Testimony as to cost admissible. — Melini v. Freige, 15 N. M. 455, 110 P. 503. Oklahoma. Evidence of what others received for the same services in the same locality is evidence of the rea- sonable value of plaintiff's services. — Anthony v. Nourse, 34 Okl. 795, 127 P. 491. Oregon. What property was sold for twelve or fifteen years before is inadmissible. — Oregon R. & Nav. Co. v. Eastlack, 54 Or. 196, 102 P. 1011. The taking of an option to purchase property at a speci- fied price is not evidence of the real or market value of such property.— Shebley v. Quatman, 66 Or. 441, 134 P. 68. Price paid over two years before inadmissible. — City of Portland v. Tigard, 64 Or. 404, 129 P. 755. South Dakota. The value of a piano is not to be esti- mated by the price at which a piano of the same kind and make was offered some two years before. — Bailey v. Walton, 24 S. D. 118, 123 N. W. 701. Evidence of the market price of wheat in another town thirteen miles distant on the same line of railway is com- petent where it is shown that the market price was prac- SIMILAR BUT UNCONNECTED FACTS 133 tically the same at both stations. — Catlett v. Stokes, 33 S. D. 278, 145 N. W. 554. Selling price of apples in their injured condition, admis- sible.— Dunlap v. Great Northern Ry. Co., 34 S. D. 320, 148 N. W. 529. Texas. The question being the value of grass destroyed, the rental per annum paid for the grass land is inadmis- sible. — International & G. N. Ry. Co. v. Searight, 8 Tex. Civ. App. 593, 28 S. W. 39. Where the earning capacity of one injured is in issue, testimony as to what he received for his labor at different times and places, and from different employers, is ad- missible. — San Antonio Foundry Co. v. Drish, 38 Tex. Civ. App. 214, 85 S. W. 440. In a suit by a broker to recover commissions on the sale of stock, what the buyer paid for other shares of the same stock after such sale is inadmissible. — Ross v. Mos- kowitz-, 100 Tex. 434, 95 S. W. 86. Price paid inadmissible. — Texarkana & Ft. S. Ry. Co. v. Neches Iron Works, 57 Tex. Civ. App. 249, 122 S. W. 64. Value of land is not to be measured by the value of land about twenty miles away, not shown to be substan- tially identical in class, conditions and surroundings. — Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S. W. 68. In an action for loss of crops, evidence of the amount and value of crops raised on similar land thirty miles away is admissible. — Erie City Iron Works v. Noble, (Tex. Civ. App.), 124 S. W. 172. Amount handed in as value for taxation inadmissible. —Gulf, C. & S. F. Ry. Co. v. Koch, (Tex. Civ. App.), 144 S. W. 1035. Price at sheriff's sale inadmissible. — Edwards v. Mayes, (Tex. Civ. App.). 136 S. W. 510. Price paid is no evidence of market value. — Wichita Falls & W. Ry. Co. of Texas v. Wyrick, (Tex. Civ. App.), 147 S. W. 730; St. Louis & S. F. R. Co. v. Blocker, (Tex. Civ. App.), 138 S. W. 156. Washington. In a suit by a fisherman for failure to fur- nish return transportation from Alaska whereby he was prevented from engaging in the business of fishing in Puget Sound during the month of. September, evidence tending to show the average earnings of fishermen there 134 SIMILAR BUT UNCONNECTED FACTS engaged during that month is admissible. — Johnson v. San Juan Fish & Packing Co., 31 Wash. 238, 71 P. 787. In case of dispute as to contract price evidence of value is admissible. — Peyser v. Western Dry Goods Co., 53 Wash. 633, 102 P. 750. Evidence of price paid not very recently inadmissible. — Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041. Price paid is no evidence of value.— Abrahamson v. Cummings, 65 Wash. 35. 117 P. 709. Similar or Dissimilar Effects On Other Persons or Things. California. In an action for injuries received while rid- ing on defendant's car which was overturned, evidence of the action of other passengers as to means taken to pre- vent injury relevant. — Mitchell v. Southern Pac. R. Co., 87 Cal. 62, 25 P. 246. To rebut claim of contributory negligence in jumping from car, evidence that others who remained on car were injured relevant. — Fogel v. San Francisco & S. M. Ry. Co., (Cal.), 42 P. 565. Where the extent of plaintiff's injuries by an explosion of powder was in issue, he may show that the explosion resulted in the death of two bystanders occupying a posi- tion near him.— Rathbun v. White, 157 Cal. 248, 107 P. 309. Colorado. Fact that similar accident had never happened before immaterial, and has no tendency to show absence of negligence. — Denver City Tramway Co. v. Hills, 50 Colo. 328, 116 P. 125. Nebraska. The plaintiff having introduced evidence that other wells in the neighborhood of the source of pollution complained of were likewise affected, held that evidence on behalf of the defendant to show that other wells sit- uated at a great distance from such source were also like- wise affected, was admissible, as tending to show that the pollution of wells was general, affecting the whole region and not caused by defendant's plant. — Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925. Texas. In an action by an employee for injuries sus- tained by the breaking of a ladder while he was descend- ing into a tank car, testimony of another employee that no ladder had ever broken with him in a tank car is SIMILAR BUT UNCONNECTED FACTS 135 inadmissible.— Adams v. Gulf, C. & S. Ry. Co., (Tex. Civ. App.), 105 S. W. 526. That no one had ever been before injured by a flying staple, inadmissible.— Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S. W. 133. Custom, Habit or Course of Business. Texas. Evidence of defendant's dealings with other real estate agents and the price at which he listed land to them is inadmissible to show the nature of the listing of the property to plaintiffs.— J. B. Lloyd & Son v. Kerley, (Tex. Civ. App.), 106 S. W. 696. Washington. In an action for damages from the bite of a ferocious dog, evidence descriptive of previous actions of the dog are relevant. — Robinson v. Marino, 3 Wash. 434, 28 P. 752. Action for injuries received by employee while riding on pass; whether pass was gratuity or part wages. Evidence of custom to furnish other like employees with transpor- tation and that manager stated it was part of his wages relevant. — Harris v. Puget Sound Elec. Ry., 52 Wash. 289, 100 p. 838. Neighboring Conditions. Oregon. Action for injuries caused by the giving way of a railroad bridge. Evidence of the bad condition of other portions of the same bridge is relevant to show that the claim of defendant that the portion which gave way was well constructed was not well founded. — Leonard v. Southern Pac. R. Co., 21 Or. 555, 28 P. 887. Washington. Intoxicated passenger injured while alight- ing from car. and prevented by employees of carrier from alighting at another place. Condition of street at such other place held inadmissible. — Sullivan v. Seattle Elec. Co., 51 Wash. 71, 97 P. 1109. Experiments. California. Experiments by jurors in a murder case, to see at what distance powder marks would be carried by liiing from ;i gun similar to that carried by defendant, necessitate a reversal, when such distance was an im- portant issue in the case. — People v. Conkling, 111 Cal. 616, 44 P. 314. Colorado. On an issue as to whether certain cement sold was of good quality, evidence of tests made with cement 136 SIMILAR BUT UNCONNECTED PACTS out of the same stock was admissible. — Hindry v. McPhee, 11 Colo. App. 398, 53 P. 389. Kansas. Tests made to ascertain whether the noise of trains coming toward a cut would be deadened by the cut and the surroundings, to a man on the highway, admissible. —Johnson v. Chicago, R. I. & P. R. Co., 80 Kan. 456, 103 P. 90. Evidence of experiments offered as illustration of a fact in issue, which experiments are taken under widely differing conditions from the facts sought to be illus- trated, are not admissible. — Wingfield v. McClintock, 85 Kan. 207, 113 P. 394. Oregon. Experiments may be performed before the jury to illustrate the cause of an accident, if conditions are the same.— Leonard v. Southern Pac. Co., 21 Or. 555, 28 P. 887. Texas. Evidence as to tests cannot be introduced in the absence of proof that the conditions were similar. — Missouri, K. & T. Ry. Co. v. Dunbar, 49 Tex. Civ. App. 12, 108 S. W. 500. Utah. Testimony as to the distance children could be seen on a railroad bridge is admissible when given by those who have made the experiment. — Young v. Clark, 16 Utah 42, 50 P. 832. Washington. Experiments made out of court are compe- tent evidence in a proper case, but they must be made under substantially the same conditions as existed at the time of the transaction in question. — Lasityr v. City of Olympia, 61 Wash. 651, 112 P. 752. Where plaintiff was injured by the explosion of a blast- ing powder furnished him by his employer without warn- ing him of its highly explosive and dangerous character, testimony of experiments upon a quite different powder was inadmissible. — Nelson v. Sibley Contracting Co., 66 Wash. 471, 119 P. 829. In an action for the death of a man run over by a car after he had fallen in a fit or intoxicated, it was error to reject evidence of an experiment made under substan- tially similar conditions, with a dummy placed near the track, for the purpose of ascertaining the greatest dis- tance at which such object could have been seen by the motorman of the approaching car. — Amsbary v. Gray's Harbor Ry. & Light Co., 78 Wash. 379, 139 P. 46. ACTS SHOWING INTENTION 137 Article 11.* acts showing intention, good faith, etc. When there is a question whether a person said or did something, the fact that he said or did something of the same sort on a different occa- sion may be proved if it shows the existence on the occasion in question of any intention, knowl- edge, good or bad faith, malice, or other state of mind, or of any state of body or bodily feeling, the existence of which is in issue or is or is deemed to be relevant to the issue; but such acts or words may not be proved merely in order to show that the person so acting or speaking was likely on the occasion in question to act in a simi- lar manner. Where proceedings are taken against any per- son for having received goods, knowing them to be stolen, or for having in his possession stolen property, the fact that there was found in the possession of such person other property stolen within the preceding period of twelve months, is deemed to be relevant to the question whether he knew the property to be stolen which forms the subject of the proceeding taken against him. If, in the case of such proceedings as aforesaid, evidence has been given that the stolen property has been found in the possession of the person proceeded against, the fact that such person has within five years immediately preceding been con- victed of any offense involving fraud or dishon- esty, is deemed to be relevant for the purpose of * See Note at end of Article 12. 138 ACTS SHOWING INTENTION proving that the person accused knew the prop- erty which was proved to be in his possession to have been stolen, and may be proved at any stage of the proceedings: provided that not less than seven days' notice in writing has been given to the person accused that proof is intended to be given of such previous conviction, (a) Illustrations. (a) A is charged with receiving two pieces of silk from B, knowing them to have been stolen by him from C. The facts that A received from B many other articles stolen by him from C in the course of several months, and that A pledged all of them, are deemed to be relevant to the fact that A knew that the two pieces of silk were stolen by B from C. — 1 (b) A is charged with uttering, on the 12th December, 1854, a counterfeit crown piece, knowing it to be counterfeit. The facts that A uttered another counterfeit crown piece on the 11th December, 1854, and a counterfeit shilling on the 4th January, 1855, are deemed to be relevant to show A's knowledge that the crown piece uttered on the 12th was counterfeit. — 2 (c) A is charged with attempting to obtain money by false pretenses, by trying to pledge to B a worthless ring as a diamond ring. The facts that two days before, A tried, on two separate occasions, to obtain money from C and D, respectively, by a similar assertion as to the same, or a similar ring, and that on another occasion on the same day he obtained a sum of money from E by pledging as a gold chain a chain which was only gilt, are deemed to be relevant, as showing his knowl- edge of the quality of the ring. — 3 (d) A is charged with obtaining money from B by falsely pretending that Z had authorized him to do so. The fact that on a different occasion A obtained money from C by a similar false pretense is deemed to be irrele- (a) [This provision is new, and peculiar to the English statute.] 1 Dunn's Case, 1 Moo. C. C. 146. 2 R. v. Forster, Dear. 456; and see R. v. Weeks, L. & C. 18. 3 R. v. Francis, L. R. 2 C. C. R. 128. The case of R. v. Cooper, L. R. 1 Q. B. D. (C. C. R.) 19, is similar to R. v. Francis, and perhaps stronger. ACTS SHOWING INTENTION 139 vant — 4 — as A's knowledge that he had no authority from Z on the second occasion had no connection with his knowl- edge that he had no authority from Z on the first occasion. (e) A sues B for damage done by a dog of B's, which B knew to be ferocious. The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are deemed to be relevant. — 5 (f) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the payee had been a real person, is deemed to be relevant, as showing that A knew that the payee was a fictitious person. — 6 (g) A sues B for a malicious libel. Defamatory state- ments made by B regarding A for ten years before those in respect of which the action is brought are deemed to be rele- vant to show malice. — 7 (h) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be sol- vent, C was to A's knowledge supposed to be solvent by his neighbors and by persons dealing with him, is deemed to be relevant, as showing that A made the representation in good faith.— 8 (i) A is sued by B for the price of work done by B, by the order of C, a contractor, upon a house of which A Is owner. A's defense is that B's contract was with Q, The fact that A paid C for the work in question is deemed to be relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A. — 9. (j) A is accused of stealing property which he had found, and the question is. whether he meant to steal it when he took possession of it. The fact that public notice of the loss of the property had been given in the place where A was. and in such a manner that A knew or probably might have known of it. is deemed 4 R. v. Holt, Bell, ('. < '. 280; and see R. v. Francis, ub. sup. p. 130. 5 See cases collected in Roscoe's Nisi Prius, 731*. B Gibson v. Hunter, :.' H. Bl. 288. 7 Barrett v. Long, 3 H. L. C. 395, 111. 8 Sheen v. Uumpstead. J 11. & C. 193. 9 (Jerish v. t'hartier, 1 C. B. 13. 140 ACTS SHOWING INTENTION to be relevant, as showing that A did not, when he took pos- session of it, in good faith believe that the real owner of the property could not be found. — 10 (k) The question is, whether A is entitled to damages from B, the seducer of A's wife. The fact that A's wife wrote affectionate letters to A be- fore the adultery was committed, is deemed to be relevant, as showing the terms on which they lived and the damage which A sustained. — 11 (1) The question is, whether A's death was caused by poison. Statements made by A before his illness as to his state of health, and during his illness as to his symptoms, are deemed to be relevant facts. — 12 (m) The question is, what was the state of A's health at the time when an insurance on her life was effected by B. Statements made by A as to the state of her health at or near the time in question are deemed to be relevant facts. — 13 (n) The question is, whether A, the captain of a ship, knew that a port was blockaded. The fact that the blockade was notified in the Gazette is deemed to be relevant. — 14 (o) [The question is, as to the intent with which defend- ant sent the prosecuting witness to a house of prostitution. Evidence of previous attempts to send girls to the same house for purposes of prostitution was admissible.] — 15 (p) [Accused is charged with receiving one stolen pool ball. Evidence may be received that he also had received four other stolen pool balls, to show intent.] — 16 (q) [The question is, whether defendant had agreed to pay for material furnished a third person during certain months. Bills for material furnished the third person by plaintiff during the months immediately preceding said months in which the bills in controversy accrued are admissible, as 10 This illustration is adapted from Preston's Case, 2 Den. C. C. 353; but the misdirection given in that case is set right. As to the relevancy of the fact, see, in particular, Lord Campbell's remark on p. 359. 11 Trelawney v. Coleman, 1 B. & A. 90. (If written before her misconduct, and not open to the suspicion of collusion. 1 Greenl. Ev., § 102.) 12 bt. v. Palmer. See my "Gen. View of Crim. Law," pp. 3G3, 377 (evidence of Dr. Savage and Mr. Stephens). 13 Aveson v. Lord Kinnaird, 6 Ea. 188. 14 Harratt v. Wise, 9 B. & C. 712. 15 (People v. Grubb, 24 Cal. App. 604, 141 P. 1051.] 10 [Henderson v. State, (Tex. Cr. R.), 172 S. W. 793.] ACTS SHOWING INTENTION 141 tending to show that defendant had made the alleged agree- ment.] — 17 (r) [The question is, whether one making certain state- ments and representations knew they were false. Evidence of similar false representations made by him to others is admissible.] — 18 (s) [The question is, whether the owner of a dog which had bitten a child knew of its savageness. The fact that it had previously bitten two children and that its owner had been warned of its vicious propensities and been told of its biting a child is relevant.] — 19 (t) [The question is, whether defendant made and uttered a -fictitious order for the payment of money. The fact that he had on former occasions gone under as- sumed names, and been arrested, is not admissible to show intent, system and guilty knowledge.] — 20 SHOWING INTENTION. Where a crime is committed in a systematic manner, it is competent to prove other similar transactions, oc- curring at different times and places, to show intent or motive of accused. — Setzer v. State, (Ark.), 161 S. W. 190; Jaynes v. People, 44 Colo. 535, 99 P. 325; State v. O'Neil, 24 Ida. 582, 135 P. 60; Territory v. West, 14 N. M. 546, 99 P. 343. Similar misrepresentations made to others are admis- sible.— McCauley v. Custer, 93 Kan. 27, 143 P. 489; Loftus v. Sturgis (Tex. Civ. App.), 167 S. W. 14. For the purpose of showing the guilty intent of the ac- cused in a prosecution for obtaining goods by fraudulent representations it may be shown that he was engaged in other similar frauds, provided the transactions are so connected as to time and so similar in their other rela- tions that the same motive may reasonably be imputed to them all: Colorado: Housch v. People, 24 Colo. 262, 50 P. 1036 (obtaining sheep by similar representations) ; but see Mahler v. Beishline, 46 Colo. 603, 105 P. 874, where testi- 17 [Grand Forks Lumber Co. v. Tourtelot, 7 N. D. 587, 75 N. W. 901.] 18 [Ogden Valley Trout & Resort Co. v. Lewis, 41 Utah 183, 125 P. 687.] 19 [Halm v. Madison, 65 "Wash. 588, 118 P. 755.] 20 [People v. Arlington, 123 Cal. 356. 55 P. 1003.] 142 ACTS SHOWING INTENTION ruony of other members of a religious community of which defendant was the head as to their experience and attempts to obtain their property was held irrelevant in an action where plaintiff claimed to have been deluded by false pretenses of defendant to supernatural power to treat certain maladies by which she was afflicted, and in- duced to surrender her property and put it it in the hands of defendant. Kansas: McCauley v. Custer, 93 Kan. 27, 143 P. 489 (similar fraudulent representations to induce contracts). Nevada: Swinney v. Patterson, 25 Nev. 411, 62 P. 1 (similar fraudulent representations for the purpose of obtaining notes). South Dakota: First Nat. Bank v. Harvey, 29 S. D. 284, 137 N. W. 365 (fraud in inducing the execution of a note; similar frauds practiced by the payee upon other parties, admissible). Washington: But in an action on account of fraudulent representations in the purchase of town lots, evidence of another who had purchased of defendant a few weeks prior to the purchase by plaintiff, and who claimed to have been defrauded in much the same way, excluded. — McKay v. Russell, 3 Wash. 378, 28 P. 908. Arkansas. In a prosecution for stealing horses, the lar- ceny at the same time of a saddle and bridle from third parties, which were placed on the horses stolen, inadmis- sible to show intent. — Endaily v. State, 39 Ark. 278. Evidence that defendant had taken other females to houses of prostitution is admissible to show intent. — Boyle v. State, 110 Ark. 318, 161 S. W. 1049. California. In a prosecution for having counterfeit coin with intent to pass it, the sale of counterfeit coin to a confederate is admissible on the question of intent. — People v. Farrell, 30 Cal. 316. In a prosecution for the larceny of a horse, the fact that other horses disappearing at the same time were found in possession of accused is relevant. — People v. Lopez, 59 Cal. 362. Other forged notes admissible to show intent. — People v. Baird, 105 Cal. 126, 38 P. 633. On a charge of shooting an officer, the fact that defend- ACTS SHOWING INTENTION 143 ant had shot others just before his arrest is relevant. — People v. Wilson, 117 Cal. 688, 49 P. 988. Prosecution under statute for administering drugs, etc., intended to produce miscarriage. Admission of defend- ant that he had given same medicine to others admissible to show motive and intent. — People v. Richardson, 161 Cal. 552, 120 P. 24. Conspiracy to defraud plaintiff by false representations. Evidence of similar transactions between defendant and others is relevant. — People v. Cory, 26 Cal. App. 735, 148 P. 532. Where the doing of an act is proved, evidence of like offenses may be received to repel any inference of acci- dent or mistake, or to negative an innocent state of mind existing at the time. — People v. Byrnes, 27 Cal. App. 428, 148 P. 944. Colorado. For the purpose of showing intent in alleged larceny of sheep by means of fraud, similar transactions with another person at the same time are admissible. — Housh v. People, 24 Colo. 262, 50 P. 1036. Testimony of other members of a religious sect as to their experience and attempts to obtain their property are inadmissible in an action to recover property conveyed to the head of such sect by fraudulent representations. — Mahler v. Beishline, 46 Colo. 603, 105 P. 874. Charge of homicide in attempt to commit highway rob- bery. To show intent of prisoner to commit a robbery evidence of several robberies committed by him shortly before and shortly after the homicide was admissible. — Hillen v. People. 59 Colo. 280, 149 P. 250. Idaho. In an action for damages for assault and battery, evidence of the intoxication of defendant and of assaults on other persons before and after the attack on plaintiff is admissible. ! larshbarger v. Murphv. 22 Idaho 261, 125 P. 180. Kansas. Where fraud and intention not to carry out a contract is charged, it is proper to show that the same party made similar but not identical contracts with other grantees which were not carried out. — People's Bank of Minneapolis v. Reed, 86 Kan. 245, 120 P. 339. Nebraska. The fact that defendant bad Bfl fires to ad- jacent buildings on the name night, is relevant in a prose- 144 ACTS SHOWING INTENTION ■cution for arson.— Knights v. State, 58 Neb. 225, 78 N. W. 508. To prove fraudulent intent in the issuance of a forged dfe£d, evidence of the execution of a forged deed to the sAme land a short time before is admissible. — Burlingim v. State, 61 Neb. 276, 85 N. W. 77. On a charge of larceny of a horse while using it as bailee for hire, evidence that defendant while using the torse had borrowed money upon fraudulent pretenses in- admissible.— Davis v. State, 54 Neb. 177, 74 N. W. 599. INevada. To prove intent of accused at the time of entry into the dwelling house of A., the fact that accused and other defendants agreed to commit a robbery on the per- son of A., but did not do so because they discovered that he had nothing to be taken, is admissible.— State v. Cowell, 12 Nev. 337. Oregon. Where evidence of similar offenses is intro- duced to show motive and intent defendant may explain the transactions. — State v. Germain, 54 Or. 395, 103 P. 521. Texas. Where defendant refused to accept an order for steel bars on the ground that plaintiff's agent had fraud- ulently inserted in the contract the word "feet" instead iof "inches," evidence of other purchases showing similar acts on the part of the agent is admissible as showing intent. — Compagnie Des Metaux Unital v. Victoria Mfg. vCfc., (Tex. Civ. App.), 107 S. W. 651. Contracts made between a corporation and persons pur- chasing land of it, wherein the corporation agreed to furnish water for such land, are not admissible to show that such an agreement should have been inserted in a contract for the sale of similar land to another person. — Judson v. Bell, (Tex. Civ. App.), 153 S. W. 169. Proof of other offenses is not admissible to show sys- tem, intent or identity, unless some of these matters are in issue. (Other burglaries on independent dates inadmis- sible.)— Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 939. When extraneous crimes are res gestae of the offense on trial, or tend to show the intent with which the person on trial acted when such intent is an issue in the case, or which tend to connect the defendant with the offense ACTS SHOWING INTENTION 145 for which he is on trial, evidence of them is admissible. — Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1133. Utah. In a prosecution for larceny of a cow, where it appears that its hide was found in defendant's barn, the fact that other hides were found therein at the same time is irrelevant to prove intent, where it was not shown that such hides or the animals from which they had been taken were stolen, or wrongfully obtained, or that defend- ant's taking or receiving them had anything to do or was in any wise connected with, or was a part of, the trans- action of the charged larceny. — State v. Bowen, 43 Utah 111, 134 P. 623. Washington. On a prosecution for larceny of a horse, the larceny by defendant of another horse turned on the range with the former, is inadmissible. — State v. Gott- freedson, 24 Wash. 398, 64 P. 523. On a charge of burglary, burglaries of adjacent houses on the same night are relevant. — State v. Norris, 27 Wash. 453, 67 P. 983. Evidence is admissible to show that at the time defend- ant sold stock to plaintiff at par, representing that to be its value, he was selling or offering for sale the very same stock for fifty-five per cent of the price paid by plaintiff.— Gilluly v. Hosford, 45 Wash. 594, 88 P. 1027. SHOWING KNOWLEDGE. In a prosecution for forgery, evidence of other forgeries of similar instruments about the same time Is admissible, to show guilty knowledge and intent. — People v. McGlade, 139 Cal. 66. 72 P. 600; Davis v. State, 58 Neb. 465, 78 N. \V. 930; Taylor v. State, 47 Tex. Cr. R. 101, 81 S. W. 933. California. That defendant knew of his dog biting an- other child and had paid the doctor's bill for attending its injuries, is relevant to show knowledge of its vicious propensity.— O'Rourke v. Finch. 9 Cal. App. 324, 99 P. 392. In a prosecution for fraudulently presenting a false claim of loss by fire to an insurance company, where de- fendant claimed that he was unfamiliar with the prepara- tion of claims of loss, evidence is relevant that on other occasions and under different names, defendant had suf- fered losses by fire, and that, on those occasions he had 146 ACTS SHOWING INTENTION prepared proofs of loss. — People v. Panagoit, 25 Cal. App. 158, 143 P. 70. Idaho. Where guilty knowledge is required to be proven, evidence of the commission of other similar offenses by the accused is admissible. (False report of condition of savings bank.)— State v. O'Neil, 24 Ida. 582, 135 P. 60. Kansas. In a prosecution for larceny, the fact that on defendant's premises were found many other stolen articles in places carefully arranged for concealment of such articles is relevant to show guilty knowledge. — Lewis v. State, 4 Kan. 306. Nebraska. Receipt of other stolen property from one of the parties charged, closely related in point of time, ad- missible to show scienter. — Goldsberry v. State, 66 Neb. 312, 92 N. W. 906. Washington. Evidence that other persons had fallen on a crosswalk about or within a short time of the day when plaintiff was injured is admissible as tending to prove notice.— Piper v. City of Spokane, 22 Wash. 147, 60 P. 138; see also Falldin v. City of Seattle, 57 Wash. 307, 106 P. 914. That the defendant had used the same means, of padded books, to defraud other contractors with whom he had contracts to furnish sand, is admissible. — Ryan v. Dowell, 86 Wash. 76, 149 P. 343. (But see State v. Bokien, 14 Wash. 403, 44 P. 889, where other previous drawings of check on no funds held inadmissible to show knowledge on occasion in question.) SHOWING MENTAL CONDITION. Where incest or seduction is charged, prior or subse- quent acts of sexual intercourse between the parties may be proved.— People v. Patterson, 102 Cal. 239, 36 P. 436; Vickers v. State, (Tex. Cr. R.), 169 S. W. 669; State v. Tilden, 79 Wash. 472, 140 P. 680. In sexual crimes, with consent, similar acts, whether prior or subsequent to the date of the specific act charged, are, if not too remote, admissible to show the disposition of defendant towards the prosecutrix. — State v. Vinn, 50 Mont. 27, 144 P. 773; Flowers v. State, 10 Okl. Cr 494, 138 P. 1041; Williamson v. State, 72 Tex. Cr. R. 618, 163 S. W. 435; Cowser v. State, 70 Tex. Cr. R. 265, 157 S. W. 758. FACTS SHOWING SYSTEM 147 In prosecutions for statutory rape evidence of similar acts of intercourse admissible. — State v. Keeler, (Mont.), 156 P. 1080; Miller v. State, (Tex. Cr. R.), 185 S. W. 29. Intercourse with prosecutrix at times subsequent to the offense charged is admissible to show predisposition of the parties to have intercourse. — People v. Parrish, 25 Cal. App. 314, 143 P. 546; Hudson v. State, 97 Neb. 47, 149 N. W. 104. California. That a horse had upon one occasion kicked up when struck with a whip or accidentally with a fork is not sufficient to show that he was vicious. — Haneman v. Western Meat Co., 8 Cal. App. 698, 97 P. 695. SHOWING MALICE. California. In an action of slander, words substantially the same as those declared on, spoken by the defendant after the commencement of the action, are admissible on the question of malice. — Chamberlain v. Vance, 51 Cal. 75. Article 12.* facts showing system. When there is a question whether an act was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was con- cerned, is deemed to be relevant. Illustrations. (a) A is accused of Betting lire to his house in order to obtain money for which it is insured. The facts that A had \>v<\ iously lived in two other houses successively, each of which he insured, in each of which a fire occurred, and that after each of those fires A received payment from ■> different insurance office, are deemed to be relevant, as tending to show that the fires were not acci- dental. — 1 1 U. v. Clay, I I-'. & F. 1102. * See Note at end of Article. 148 FACTS SHOWING SYSTEM (b) A is employed to pay the wages of B's laborers, and it is A's duty to make entries in a book showing the amounts paid by him. He makes an entry showing that on a particu- lar occasion he paid more than he really did pay. The question is, whether this false entry was accidental or intentional. The fact that for a period of two years A made other simi- lar false entries in the same book, the false entry being in each case in favor of A, is deemed to be relevant. — 2 (c) The question is, whether the administration of poison to A, by Z, his wife, in September, 1848, was accidental or intentional. The facts that B, C and D (A's three sons), had the same poison administered to them in December, 1848, March, 1849, and April, 1849, and that the meals of all four were pre- pared by Z, are deemed to be relevant, though Z was indicted separately for murdering A, B and C, and attempting to mur- der D. — 3 (d) A promises to lend money to B on the security of a policy of insurance which B agrees to effect in an insurance company of his choosing. B pays the first premium to the company, but A refuses to lend the money except upon terms which he intends B to reject, and which B rejects accord- ingly. The fact that A and the insurance company have been engaged in similar transactions is deemed to be relevant to the question whether the receipt of the money by the com- pany was fraudulent. — 4 (e) [The question is, whether plaintiff's agent, fraudu- lently and without defendant's knowledge, inserted in an order for steel bars the word "feet," instead of "inches." The fact that the same agent had done similar acts is rele- vant to show fraudulent intent.] — 5 (f) [The question is, whether a person had conveyed cer- tain property with intent to hinder, delay or defraud cred- itors. The fact that he had made other conveyances shortly be- fore for insufficient consideration, is relevant.] — 6 (g) [The question is, whether plaintiff's work was ineffi- cient and his charges excessive. 2 R. v. Richardson, 2 P. & F. 1102. 3 R. v. Geering, 18 L. J. M. 215; cf. R. v. Garner, 3 F. & F. 681. 4 Blake v. Albion Life Assurance Society, L. R. 4 C. P. D. 94. 5 [Compagnie Des Metaux Unital v. Victoria Mfg. Co., (Tex. Civ. App.), 107 S. W. 651.] 6 [First State Bank v. Knox, (Tex. Civ. App.), 173 S. W. 894.] FACTS SHOWING SYSTEM 149 Evidence that similar work done by him for others was inefficient and the charges excessive, is inadmissible, as tend- ing to show a general course of dealing similar to the facts alleged by defendant.] — 7 (h) [The question is, whether defendant, acting as agent for the sale of certain stock for plaintiff, concealed the actual consideration received. Evidence of similar representations to other stockholders similarly situated is relevant.] — 8 SHOWING SYSTEM. To show system and negative mistake, other similar acts of the party are admissible: Arizona: Qualey v. Territory, 8 Ariz. 45, 68 P. 546 (falsi- fication of books; alteration of other parts of books not embraced in indictment). California: People v. Bidleman, 104 Cal. 609, 38 P. 502 (other money received by defendant and not accounted for) ; People v. McGlade, 139 Cal. 66, 72 P. 600 (other for- geries of similar instruments at about the same time). Oklahoma: Beberstein v. Territory, 8 Okl. 467, 58 P. 641 (other larcenies admitted, where they were part of the same plan and closely connected). Oregon: State v. Savage, 30 Or. 191, 60 P. 610 (larceny from express company; former plan to rob a train). Texas: Holt v. State, 39 Tex. 282, 46 S. W. 829 (other larcenies). Wyoming: Edelhoff v. State, 5 Wyo. 19, 36 P. 627 (em- bezzelment of money received for rents; retention of other money similarly received). In prosecutions for illegal sales of liquor, facts and cir- cumstances of other sales are admitted in corroboration of and to throw light on the offense charged and to show system, plan, knowledge and intent: Arizona: Cluff v. State, 16 Ariz. 179, 142 P. 644. North Dakota: State v. McKone, — N. D. — , 154 N. W. 256 (recent and frequent large importations). Texas: Cole v. State, 72 Tex. Cr. R. 209, 162 S. W. 880; Perryman v. State, (Tex. Cr. R.), 173 S. W. 1195. Arkansas. Fraudulent contemporaneous purchases from others are inadmissible to show another purchase fraud- 7 [Randle v. Barden, (Tex. Civ. App.), 161 S. W". 1063.] 8 [Barbar v. Martin. 67 Neb. 445, 93 N. W. 722.) 150 FACTS SHOWING SYSTEM ulent, where it is not shown that there was a common fraudulent purpose in all such purchases. — White v. Beal & Fletcher Grocer Co., 65 Ark. 278, 45 S. W. 1060. Colorado. In an action of deceit in the sale part of a tract of land, plaintiff may prove similar misrepresenta- tion made to parties who bought other parts of the same tract. — Mayo v. Wahlgreen, 9 Colo. App. 506, 50 P. 40. In a prosecution for obtaining money by the confidence game, by selling an interest in a business which did not exist, evidence of transactions with other parties which tended to establish a fraudulent scheme to cheat and de- fraud the prosecuting witness is admissible, when such dealings are sufficiently connected in point of time to authorize the inference that the transaction under con- sideration was in pursuance of the same general purpose. —Elliott v. People, 56 Colo. 236, 138 P. 39. Kansas. Evidence of the practice and usage of others in climbing the ladder of a box car when a train is in motion, such as deceased fell from, is not admissible to prove due care on his part at the time of the accident. — Southern Kansas Ry. Co. v. Robbins, 43 Kan. 145, 23 P. 113. When it is alleged that a contract to supply water for irrigation and to purchase for the grantee certain land was fraudulent, and not carried out by the grantor, it is competent to show that the same party made similar but not identical contracts with other grantees which were not carried out, as tending to show system, motive or intent. — People's Bank of Minneapolis v. Reid, 86 Kan. ■ 245, 120 P. 339. Nebraska. In an action by a bona fide purchaser of a negotiable instrument for value before maturity without notice, where the defense is fraud in the procurement of the paper, evidence of similar frauds committed by the agent of the payee about the same time is inadmissible. — Hunt v. Van Burg, 75 Neb. 304, 106 N. W. 329. Nevada. That similar fraudulent representations were made by the payee of certain notes given by others in the purchase of goods may be shown as a defense to a note alleged to have been obtained by fraudulent representa- tions of the same payee. — Swinney v. Patterson, 25 Nev. 411, 62 P. 1. Oklahoma. If the person against whom fraud is alleged FACTS SHOWING SYSTEM 151 should be proven to have been guilty of it in any number of instances, still, if the particular act sought to be avoided be not shown to be tainted with fraud, it cannot be af- fected with other frauds, unless in some way it be con- nected with it or form part of them. — Price v. Winnebago Nat. Bank, 14 Okl. 268, 79 P. 105. Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a sys- tematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the de- fendant with the commission of the offense charged. (Other raised vouchers for state printing.) — State v. Rule, 11 Okl. Cr. 237, 144 P. 807. Texas. Upon an issue of forgery of the name of the maker on a note, the fact that the same party had forged the name of the maker on another note is inadmissible. — Kingsbury v. Waco State Bank, 30 Tex. Civ. App. 387, 70 S. W. 551. In an action to recover property by fraudulent and de- ceitful acts, the fact that one of the defendants had been arrested for swindling and was under bond to answer such charge is irrelevant. — Witliff v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98. An isolated instance of a fictitious claim for damages for personal injury is irrelevant to show that plaintiff's claim in the present case was fictitious, no plan or sys- tem of plaintiff in maintaining fictitious claims being shown.— Ft. Worth Belt Ry. Co. v. Cobell, (Tex. Civ. App.), 161 S. W. 1083. In support of allegations of fraud and misrepresenta- tions made by defendant in regard to weekly amounts re- ceived by him from his shows, similar misrepresentations made to other parties before and after the time such representations were made to plaintiffs are admissible. — Loftus v. Sturgis, (Tex. Civ. App.). 167 S. W. 14. Washington. In a suit to recover money paid upon a real estate contract, procured by alleged fraudulent represen- tations, evidence of fraudulent representations made by defendant to another in the sale of lots in the same town a few weeks prior to the purchase by plaintiff is irrele- vant.— McKay v. Russell, 3 Wash. 37S. 28 P. 908. 152 FACTS SHOWING SYSTEM Prosecution for stealing cattle. Fact of defendant's possession of other cattle not shown to have been stolen, inadmissible. — State v. Humason, 5 Wash. 499, 32 P. 111. Where plaintiff claimed fraud in the sale of a mine, evidence of misrepresentations regarding the existence and character of the mine and value of ores, made to per- sons other than plaintiff, where the purpose of defendants was to sell the mine to any one that could be induced to purchase it, and it was all one continuous scheme or transaction, is admissible. — Oudin v. Crossman, 15 Wash, 519, 46 P. 1047. In an action to set aside a quit claim deed as obtained by fraud, fraudulent representations made by defendant to other persons owning delinquency certificates on the same land, which defendant bought, are relevant. — Stock v. Nolte, 29 Wash. 188, 69 P. 753. The question being whether defendant's indorsement of a note was procured by a fraudulent trick, evidence that at about the same time the indorsements of other per- sons were obtained by the same parties who obtained defendant's indorsement, by the perpetration of a similar trick, is admissible even against a bona fide holder. — Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 P. 1119. False representations made by defendant to the pur- chaser of half of a tract of land sold to one person may be shown in an action of fraud and deceit in the sale of the remainder to another person. — Carnahan v. Moore, 70 Wash. 623, 127 P. 195. In a prosecution for grafting by obtaining campaign contributions on promises of immunity from prosecution for gambling, testimony that other gamblers had con- tributed under the same solicitations is admissible. — State v. Shea, 78 Wash. 342, 139 P. 203. . NOTE VI. (To Articles 10, 11, 12.) Article 10 is equivalent to the maxim. "Res inter alios acta alteri nocere non debet," which is explained and commented on in Best, ss. 506-510 (though I should scarcely adopt his explanation of it), and by Broom ("Maxims," 954-968). The application of the maxim to the Law of Evidence is obscure, because it does not show how unconnected transactions FACTS SHOWING SYSTEM 153 should be supposed to be relevant to each other. The mean- ing of the rule must be inferred from the exceptions to it stated in Articles 11 and 12, which show that it means, you are not to draw inferences from one transaction to another which is not specifically connected with it merely because the two resemble each other. They must be linked together by the chain of cause and effect in some assignable way before you can draw your inference. In its literal sense the maxim also fails, because it is not true that a man cannot be affected by transactions to which he is not a party. Illustrations to the contrary are obvious and innumerable; bankruptcy, marriage, indeed every tran- saction of life, would supply them. The exceptions to the rule given in Articles 11 and 12 are generalized from the cases referred to in the illustrations. It is important to observe that though the rule Is expressed shortly, and is sparingly illustrated, it is of very much greater importance and more frequent application than the exceptions. It is indeed one of the most characteristic and distinctive parts of the English Law of Evidence, for this is the rule which prevents a man charged with a particular of- fense from having either to submit to imputations which in many cases would be fatal to him, or else to defend every action of his whole life in order to explain his conduct on the particular occasion. A statement of the Law of Evidence which did not give due prominence to the four great exclu- sive rules of evidence, of which this is one would neither represent the existing law fairly nor in my judgment im- prove it. The exceptions to the rule apply more frequently to crim- inal than to civil proceedings, and in criminal cases the courts are always disinclined to run the risk of prejudicing the pris- oner by permitting matters to be proved which tend to show in general that he is a bad man, and so likely to commit a crime. In each of the cases by which Article 12 is illustrated, the evidence admitted went to prove the true character of facts which, standing alone, might naturally have been ac- counted for on the supposition of accident — a supposition which was rebutted by the repetition of similar occurrences. In the case of R. v. Gray (Illustration a) there were many other circumstances which would have been sufficient to prove the prisoner's guilt, apart from the previous fires. That part of the evidence, indeed, seemed to have little influence on the jury. Gainer's Case (Illustration c, note) was an ex- traordinary one, and its result was in every way unsatisfac- tory. Some account of this case will be found in the evidence given by me before the Commission on Capital Punishments which sat in 1866. 154 EXISTENCE OF COURSE OF BUSINESS Article 13.* existence of course of business when deemed to be relevant. When there is a question whether a particular act was done, the existence of any course of office or business, according to which it naturally would have been done, is a relevant fact. When there is a question whether a particular person held a particular public office, the fact that he acted in that office is deemed to be relevant, (a) When the question is whether one person acted as agent for another on a particular occasion, the fact that he so acted on other occasions is deemed to be relevant. Illustrations. (a) The question is, whether a letter was sent on a given day. The postmark upon it is deemed to be a relevant fact. — 1 (b) The question is, whether a particular letter was dis- patched. The facts that all letters put in a certain place were, in the common course of business, carried to the post, and that that particular letter was put in that place, are deemed to be relevant. — 2 (c) The question is, whether a particular letter reached A. The facts that it was posted in due course, properly ad- dressed, and was not returned through the dead letter office, are deemed to be relevant. — 3 (a) 1 Ph. Ev. 449; R. N. P. 46; T. E., § 139. Briggs v. Hewey, 130 Mass. 187. 1 R. v. Canning, 19 S. T. 370. 2 Hetherington v. Kemp, 4 Camp. 193; and see Skilbeck v. Garbett, 7 Q. B. 846; and Trotter v. Maclean, L. R. 13 Ch. Div. 574. (Lothrop v. Greenfield, &c. Ins. Co., 2 Allen (Mass.), 82.) 3 Warren v. Warren, 1 C. M. & R. 250; Woodcock v. Houlds- worth, 16 M. & W. 124. Many cases on this subject are col- lected in Roscoe's Nisi Prius, pp. 374, 375. * See Note at end of Article. EXISTENCE OF COURSE OF BUSINESS 155 (d) The facts stated in Illustration (d) to the last article are deemed to be relevant to the question whether A was agent to the company. — 4 (e) [The question is, whether there was unnecessary delay in a shipment of cattle over a certain line. Evidence as to the customary length of time consumed by freight trains from the point of shipment to point of destina- tion is admissible.] — 5 COURSE OF BUSINESS. Where a letter was properly stamped and mailed and never returned, the presumption is that it was received. — Planters' Mut. Ins. Ass'n v. Green, 72 Ark. 305, 80 S. W. 151; Merchants' Exch. Co. v. Sanders, 74 Ark. 16, 84 S. W, 786; Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510; Southern Engine & Boiler Works v. Vaughn, 98 Ark. 388, 135 S. W. 913; St. Vincent Inst, for the Insane v. Davis, 129 Cal. 20, 61 P. 477 (statutory); Smith v. Col- lis, 42 Mont. 350, 112 P. 1070; McAuley v. Casualty Co. of America, 39 Mont. 185, 102 P. 586; National Masonic Ace. Ass'n v. Burr, 57 Neb. 437, 77 N. W. 1098; Williams v. Culver, 39 Or. 337, 64 P. 763 (statutory); Lawver v. Globe Mut. Ins. Co., 25 S. D. 549, 127 N. W. 615; Pink Front Bank- rupt Store v. G. A. Mistrot & Co., 40 Tex. Civ. App. 375, 90 S. W. 75; Opet v. Danzer, Goodhart & Snyder, (Tex. Civ. App.), 93 S. W. 527; State Division, Lone Star Ins. Union v. Blassengame, (Tex. Civ. App.), 162 S. W. 6; Ault v. Interstate Sav. & Loan Ass'n, 15 S. W. 627, 43 P. 13. It must be shown that the letter was addressed and properly deposited, postage prepaid. — Fountain City Drill Co. v. Lindquist. 22 S. D. 7, 114 N. W. 1098; Trezevant & Cochran v. R. II. Powell & Co., (Tex. Civ. App.), 130 S. W. 234. The presumption of receipt is rebuttable. — Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510; City of Omaha v. Yancey, 91 Neb. 261, 135 N. \V. L044; Reeves & Co. v. Mar- tin, 20 Okl. 558, 94 P. 1058. 4 Blake v. Albion Life Assurance Society, i>. u. i C. P. D. 94. 5 [Texas & P. Ry. Co. v. Crowley, (Tex, Civ. App.), 86 S. W. 342.) 156 EXISTENCE OF COURSE OF BUSINESS A similar presumption of delivery results from the in- trusting to a telegraph company for transmission of a message properly addressed to that which follows from the posting of a letter for transmission by the United States mail.— Perry v. Bank, 53 Neb. 89, 73 N. W. 538; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942. United States. Evidence of a letter, containing notice, having been put into the postoffice, directed to the en- dorser, at his place of residence, is sufficient proof of the notice to be left to the jury, and it is unnecessary to give notice to the defendant fo produce the letter before evidence can be admitted. — Lindenberger v. Beall, 19 U. S. (6 Wheat.) 104, 5 L. Ed. 216. California. As evidence that a business was conducted by W. ostensibly for himself and in his name, 'and not for or in the name of another, testimony of witnesses that they sold goods to W. in his own name was relevant, together with their bills for such goods to show that they were charged to W. individually and not to defendant. — Kelly v. Murphy, 70 Cal. 560, 12 P. 467. The fact that a telegraph message was duly sent is ad- missible in evidence, and tends to show that it was re- ceived.— Eppinger v. Scott, 112 Cal. 369, 44 P. 723. That a train was due at a certain place at a certain time is relevant to prove that it was there at that time. — People v. Wong Chuey, 117 Cal. 624, 49 P. 833. Colorado. A promissory note payable at a certain bank is shown to have been presented at the bank on the day of its maturity. It will be presumed, the contrary not ap- pearing, that the presentment was made during business hours.— Archuleta v. Johnston, 53 Colo. 393, 127 P. 134. Illinois. In a suit for the payr: rut of an alleged debt, evi- dence that a party was promi:': in payment of his debts is admissible. — Orr v. Jason, 1 111. App. 439. Montana. An established UFi^e 'or custom among men engaged in the same employment is admissible to disprove the doing of an act in a negligent manner, where the act of the party charged was not negligent in itself. — Pros- ser v. Montana Cent. Ry. Co., 17 Mont. 372, 43 P. 81. The presumption that a clerk of court did his duty and properly dated a summons is disputable.— Gehlert v. Quinn, 35 Mont. 451, 90 P. 168. EXISTENCE OF COURSE OF BUSINESS 157 Nebraska. A public officer may give evidence of the uni- form course of business in his office, for the purpose of showing the performance of a specific official act, which it was his duty to perform, but concerning which he has no independent recollection. (To show that a judgment was indexed, in the office of the district court, on the day the transcript thereof was filed.) — Gate City Abstract Co. v. Post, 55 Neb. 742, 76 N. W. 471. Texas. Evidence that a member of a banking firm, who is county treasurer, incorrectly keeps the county treas- urer's books, does not tend to prove that an employee of the firm incorrectly keeps its books. — Beeman v. Jester, 62 Tex. 431. Evidence of the habit or custom or performing a duty is of value as tending to show that the duty was performed on the occasion in question.— Cane Hill Cold Storage & Orchard Co. v. San Antonio & A. P. Ry. Co., (Tex. Civ. App.), 95 S. W. 751. The fact that a benefit certificate was mailed at Sher- man, Tex., on the 17th of June, addressed to the insured at San Antonio, Tex., raises a presumption that it was re- ceived by the insured before the death of the insured in San Antonio on June 19th. — Eatman v. Eatman, (Tex. Civ. App.), 135 S. W. 165. Utah. A notice properly addressed and stamped and de- livered into the mails is presumed to have been received. —Brown v. Fraternal A. Ass'n, 18 Utah 265, 55 P. 63. ACTIONS AS AGENT. Colorado. The authority of an alleged agent cannot be shown by proving similar transactions between the agent and other parties. — Murphy v. Gumaer, 12 Colo. App. 472, 486, 55 P. 951. Nebraska. The existence of an agency, and the nature and scope of his powers, may be proved by the course of dealing between the persons alleged to sustain the rela- tion of principal and agent, and between the latter with the consent of the former, and third persons. — Standley v. Clay, Robinson & Co., 68 Neb. 332, 94 N. W. 140. Oregon. An agency need not be proved by direct evi- dence, but may be shown by circumstances and the course of the dealing. — Co-operative Copper & Gold Mining Co. v. Law, 65 Or. 250, 132 P. 521. 158 HEARSAY Texas. Upon the question as to whether a person was the agent of defendant to reserve berths, the fact is ad- missible that he had made similar reservations with the approval of the company's agents in charge of the sleep- ing cars. — Pullman Palace Car Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 624. NOTE VII. (To Article 13.) As to presumptions arising from the course of office or business, see Best, s. 403; 1 Ph. Ev. 480-484; T. E., s. 147. [1 Wigmore Ev., §§ 92-95.] The presumption, "Omnia esse rite acta," also applies. See Broom's "Maxims," 942; Best, ss. 353-365; T. E. s. 124, &c; 1 Ph. Ev. 480; and Star. 757, 763. CHAPTER IV. HEARSAY IRRELEVANT EXCEPT IN CERTAIN CASES Article 14.* hearsay and the contents of documents irrelevant. (a) The fact that a statement was made by a person not called as a witness, and (b) the fact that a statement is contained or recorded in any book, document, or record what- ever, proof of which is not admissible on other grounds, are respectively deemed to be irrelevant to the truth of the matter stated, except (as regards (a)) in the cases contained in the first section of this chapter; (a) and except (as regards (b) ) in the cases con- tained in the second section of this chapter. (a) It is important to observe the distinction between the principles which regulate the admissibility of the statements contained in a document and those which regulate the man- ner in which they must be proved. On this subject see the whole of Part II. * See note at end of Article. HEARSAY 159 Illustrations. (a) A declaration by a deceased attesting witness to a deed that he had forged it, is deemed to be irrelevant to the ques- tion of its validity. — 1 (b) The question is, whether A was born at a certain time and place. The fact that a public body for a public purpose stated that he was born at that time and place is deemed to be irrelevant, the circumstances not being such as to bring the case within the provisions of Article 34. — £ (c) [The question is, whether plaintiff had destroyed her own property by fire. Testimony as to a conversation of plaintiff with a third person as to the fire, and told by the latter to witness, is hearsay.] — 3 HEARSAY IN GENERAL. "The Hearsay rule, as accepted in our jurisprudence, signifies a rule rejecting assertions offered testimonially, which have not been in some way subjected to the test of cross-examination." — 2 Wigmore Ev., § 1362. Testimony as to statements of a third person not made in the presence of the party are inadmissible. — Lee-Clark- Andreesen Hardware Co. v. Yankee, 9 Colo. App. 443, 48 P. 1050; Taylor v. Stockwell, 22 Wyo. 492, 145 P. 743. Letters, books and other writings, not coming under some exception as official writings and the like, and, of course, statements as to their contents derived from others is inadmissible as hearsay: Arizona: Matko v. Daley, 10 Ariz. 175* 85 P. 721 (receipts on the payrolls of n mining company, purporting to be signed by two certain persons, Inadmissible to show that such persons had worked for the company i. California: Bailey v. Kreutzmann, 141 Cal. 519, 75 P. 104 (recitals as to the contents of medical works); Donel- lan's Estate, In re, 164 Cal. 14, 127 P. 166 (statements of contents of letter made to witness). Montana: Stagg & Conrad v. St. Jean, 29 Mont. 288, 74 P. 740 (catalogue issued by manufacturers of hot-air plant. to show its heating capacity); Columbian State Bank v. l Stobart v. Dryden, 1 M. & W. 615. J Sturla v. Freccla, L. K. 5 App. Cas. 623. 8 [Chtinn v. London & Lancashire Fire Ins. Co., 115 Ark. 555. 172 S. W. 837.] 160 HEARSAY Erb, 50 Mont. 442, 147 P. 617 (copy of memorandum made by another). North Dakota: Knight v. Willard, 26 N. D. 140, 143 N. W. 346 (letter from chemist as to result of analysis made by assistant). Texas: Home Investment Co. v. Strange, (Tex. Civ. App.), 152 S. W. 510 (letters between parties having no connec- tion with the suit) ; Ft. Worth & D. C. Ry. Co. v. Southern Kansas Ry. Co., (Tex. Civ. App.), 151 S. W. 850 (contents of letter not itself admissible). Offers of sale or purchase of the same or similar land in the neighborhood, or of an article, are not admissible to fix the value.— Loloff v. Sterling, 31 Colo. 102, 71 P. 1113; Helena Power Transmission Co. v. McLean, 38 Mont. 388, 99 P. 1061; Stewart v. James, 1 Neb. (unof.) 507, 95 N. W. 778; State v. Nevada Cent. R. Co., 28 Nev. 186, 81 P. 99; Truckee River General Electric Co. v. Durham, 38 Nev. 311, 149 P. 61; Jonesboro, L. C. & E. R. Co. v. Ashabranner, 117 Ark. 317, 174 S. W. 548; Chicago, M. & St. P. R. Co. v. Alexander, 47 Wash. 131, 91 P. 626; Chicago, M..& P. S. R. Co. v. True, 62 Wash. 646, 114 P. 515; North Coast R. Co. v. Newman, 66 Wash. 374, 119 P. 823. Arkansas. A witness cannot testify as to the contents of a document merely from having heard it read. — Hooper v. Chism, 13 Ark. 496. Statements of a father after giving possession of land to his son that the land still belonged to him, and that he had merely let the latter have it during the father's lifetime are hearsay. — Strickland v. Strickland, 103 Ark. 183, 146 S. W. 501. Statements made by an injured person to his attending physician, as to how an accident happened and what caused it, are not admissible.- — St. Louis, I. M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S. W. 494. Statements of pain and suffering merely by way of narrative are purely hearsay and inadmissible. — Prescott & N. W. R. Co. v. Thomas, (Ark.), 167 S. W. 487. Statements by plaintiff's ancestor as to the. value of a certain piece of land are inadmissible. — St. Louis, I. M. & S. Ry. Co. v. Brundidge, 115 Ark. 606, 171 S. W. 859. In a prosecution for larceny it is not hearsay evidence HEARSAY 161 for defendant to prove that the owner of the alleged stolen article told a third party that defendant might take the property, and that this party communicated to defend- ant what the owner had said. — Little v. State, (Ark.), 178 S. W. 374. What others saw and told witness about a place alleged to be dangerous, is no evidence of its dangerous character. — Harrelson v. Eureka Springs Elec. Co., (Ark.), 181 S. W. 922. California. A witness cannot testify as to the contents of a document merely from having heard it read. — Russell v. Brosseau, 65 Cal. 605, 4 P. 643; Guinasso, In re, 13 Cal. App. 518, 110 P. 335. A witness may testify as to his age, though his only source of knowledge is what his relatives have told him. — Morrell v. Morgan, 65 Cal. 575, 4 P. 580. A witness who can neither read nor write cannot tes- tify to the contents of a written instrument. — Russell v. Brosseau, 65 Cal. 605, 4 P. 643. A certificate of discharge of defendant from the United States army for disability, which also certifies his char- acter to be good, is inadmissible. — People v. Eckman, 72 Cal. 582, 14 P. 359. The verdict of a coroner's jury as to the time and man- ner of the death of a man and his wife, who were mur- dered on the same occasion, is hearsay, none of the facts being within the personal knowledge of the coroner or any juror.— Holllster v. Cordero, 76 Cal. 649, 18 P. 855. A witness cannot testify that the game of faro was be- ing played when it appears that he only knew that it was such game from what he was told by others and did not know the game himself. — People v. Gosset, 93 Cal. 641, 29 P. 246. Certificates of one who assayed ore from a mine are not competent to prove the value of a mine. — People v. Whalen, 154 Cal. 472, 98 P. 194. The exclusion of hearsay evidence is based on the fact that every litigant who comes into a court of justice has a clear right to have the witnesses against him brought into court face to face, so that he may be tested by cross- examination as to every fact concerning which he has 162 HEARSAY given evidence. — San Francisco Teaming Co. v. Gray, 11 Cal. App. 314, 104 P. 999. Witness having never read a letter he cannot testify to its contents. — In re Donnellan's Estate, 164 Cal. 14, 127 P. 166. Colorado. Where a written instrument has been de- stroyed, a witness may testify as to its contents from hav- ing heard it read. — Breen v. Richardson, 6 Colo. 605. Statements made in a conversation between third per- sons are not admissible in evidence against a party who was not present. — Lee-Clark-Andreesen Hardware Co. v. Yankee, 9 Colo. App. 443, 48 P. 1050. Evidence by a purchaser of property claimed to have been sold in fraud of creditors as to what someone had told him about an attachment of the same is inadmissible. —Kaufman v. Burchinell, 15 Colo. App. 520, 63 P. 786. Testimony of a physician that prior to the time deceased made application for membership in defendant society he attended deceased as a physician and that he was then suffering from a certain disease, is not objectionable as hearsay. — Head Camp, Pacific Jurisdiction, Woodmen of the World v. Loeher, 17 Colo. App. 247, 68 P. 136. A bystander may testify to a telephone conversation be- tween the parties so far as he heard it.— Kent v. Cobb, 24 Colo. App. 264, 133 P. 424. The testimony of a witness that one K. told her that a certain T. asked him to negotiate a settlement of a claim is hearsay.— Pulton Inv. Co. v. Smith, 27 Colo. App. 279, 149 P. 444. Kansas. Declarations of a party, in his own favor, made to the opposite party are admissible only for the purpose of showing that at the time such declarations were made the opposing party, by words or conduct, admitted their truth.— Backus v. Clark, 1 Kan. 303. The contents of books or pay rolls cannot be shown by one who never kept the same and has no recollection of the facts independently of them. — Paola Gas Co. v. Paola Glass Co., 56 Kan. 614, 44 P. 621. Testimony that one in the employ of defendant was en- deavoring to improperly influence the witness cannot be HEARSAY 163 proved by a conversation at which defendant was not present. — McGuirk v. Johnson, 63 Kan. 884, 65 P. 654. Witnesses receiving for examination the stomach of a man killed by drinking wood alcohol, together with re- maining liquor, may not testify that they were informed by the persons delivering the same as to whence it had come.— Campbell v. Brown, 85 Kan. 527, 117 P. 1010. Declarations of a physician, consulted by a patient, are not admissible to show physical condition. — Johnson v. Powell, 87 Kan. 142, 123 P. 881. Montana. Where it was sought to introduce secondary evidence of letters alleged to have been destroyed, witness cannot testify that another told him they had been de- stroyed.— Colbert's Estate, In re, 51 Mont. 455, 153 P. 1022. Nebraska. Hearsay testimony which is incompetent is not made admissible by reason of the death of the person who made the statement sought to be proved. — Shold v. Van Treeck, 88 Neb. 80, 128 N. W. 1134. Statements by plaintiff's daughter as to the fact of plaintiff's having used her arm contrary to instructions of defendant are hearsay. — Blakeslee v. Van DerSlice, 94 Neb. 153, 142 N. W. 799. Nevada. Defendant may not have witness give in evidence a conversation between her and witness as to her physical condition on a certain day, it being hearsay. — Kennedy v. Kennedy, 27 Nev. 152, 74 P. 7. Oklahoma. A witness may testify as to his or her own age.— Stevens v. Elliott, 30 Okl. 41, 118 P. 407. Statements of plaintiff's minor son that the property in question belonged to plaintiff's husband are hearsay. — Rauh v. Morris, 40 Okl. 288, 137 P. 1174. A person may not testify as to the age of his brother from what his folks have told him, when the question at issue is not one of pedigree. — Freeman v. First Nat. Bank of Boynton, 44 Okl. 146, 143 P. 1165. A section foreman cannot be permitted to testify that certain parties had told him that defendant's engine had set out the fire which burned plaintiff's meadow. — St. Louis & S. F. R. Co. v. Murray, (Okl.), 150 P. 884. Oregon. Testimony of a deputy sheriff that he did not himself turn over certain property to a trustee in bank- 164 HEARSAY ruptcy, but that the records of his office showed that it was, is inadmissible as hearsay. — Goodnough Mercantile Co. v. Galloway, 48 Or. 239, 84 P. 1049. Common rumor, cards and newspaper items are inad- missible to prove a partnership. — Gettins v. Hennessey, 60 Or. 566, 120 P. 369. An affidavit of plaintiff to the effect that he had in his possession the affidavits of three men that certain assess- ment work had not been done is hearsay. — Anderson v. Robinson, 63 Or. 228, 127 P. 546. Pictures and statement in a newspaper, purporting to represent the graduating class of a college, are inadmis- sible in an action by one represented therein to compel the college to award a diploma to him. — Tate v. Northern Pac. College, 70 Or. 160, 140 P. 743. South Dakota. The "talk and conversation of the fam- ily," that the son was the owner of certain personal prop- perty is inadmissible as hearsay. — Stevens v. William Deering & Co., 6 S. D. 200, 60 N. W. 739. Texas. A witness cannot testify as to the contents of a document merely from having heard it read. — Mutual Life Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294. Hearsay evidence is not admissible to corroborate wit- nesses. — Newton v. Alexander, (Tex. Civ. App.), 44 S. W. 416. Telegraphic correspondence between employees of a company is hearsay.— Pecos & N. T. Ry. v. Evans & Co., 42 Tex. Civ. App. 60, 93 S. W. 1024. It is error to permit a witness to testify that a party was, by others, identified as the same party witness had subsequently seen.— Ripley v. State, 51 Tex. Cr. R. 126, 100 S. W. 943. Letters of a third person to defendant are inadmissible. —Taylor v. McFatter, (Tex. Civ. App.), 109 S. W. 395. Statements of a person to witness as to the description of land in a lost deed are inadmissible. — Rice v. Talia- ferro, (Tex. Civ. App.), 156 S. W. 242. Testimony of the sender of a telegram, that the oper- ator had called him up by telephone and stated that he had followed the sender's directions in transmitting the HEARSAY 165 message, is hearsay. — Western Union Telegraph Co. v. Ray, (Tex. Civ. App.), 147 S. W. 1194. Statement of a witness at an inquest is hearsay when attempted to be used at the trial of an action for the death. —Texas Cent. R. Co. v. Dumas, (Tex. Civ. App.), 149 S. W. 543. Death may be proved by hearsay, after the lapse of long time.— McDoel v. Jordan, (Tex. Civ. App.), 151 S. W. 1178. Ex parte affidavits are inadmissible. — Magee v. Paul, (Tex. Civ. App.), 159 S. W. 325; Rude v. Richards, (Tex. Civ. App.), 159 S. W. 386. Letters from commission merchants are not admissible to show market value. — Houston Packing Co. v. Griffith, (Tex. Civ. App.), 164 S. W. 431. What a physician told plaintiff with reference to the advisability of an operation, and what would be the re- sult if he did not have it performed, is inadmissible. — Texas Power & Light Co. v. Burger, (Tex. Civ. App.), 166 S. W. 680. Testimony that a surveyor told parties he was survey- ing for, that a certain mound was a corner, is hearsay. — McSpadden v. Vannerson, (Tex. Civ. App.), 169 S. W. 1079. Utah. IJ is not proper to ask a witness to state a con- versation between third parties in the absence of re- spondent, where it is sought to bind respondent by the conversation.— Van Pelt v. Park, 18 Utah 141, 55 P. 381. Declarations of third persons are inadmissible as hear- say, when it does not appear that they were a part of the res gestae, or were made in the presence of the party sought to be charged, and acquiesced in by him. — Jensen v McCormick. 20 Utah 355, 58 P. 834. Declarations of the herder of trespassing sheep and cat- tle that they belonged to defendant for whom he was work- ing, were not admissible as showing the nature of his pos- session, as they did not show possession in him but In another.— Surbaugh v. Butterfield, 44 Utah 446, 140 P. 757. Washington. Witnesses cannot testify as to what an al- leged agent told them his principal concluded to do in re- spect to a certain matter. — Gregory v. Loose, 19 Wash. 599. 54 P. 33. 166 HEARSAY A letter written by plaintiff's counsel to defendant after the latter's refusal to accept certain goods, setting out plaintiff's view of the transaction, is inadmissible. — Moritz v. Herskovitz, 46 Wash. 192, 89 P. 560. An offer of a price for property made in good faith and rejected by the owner is competent evidence of value. — German-American State Bank v. Spokane-Columbia River R. & Nav. Co., 49 Wash. 359, 95 P. 261. A witness may testify that his mother was a full-blooded Indian and that his father was a Portuguese. — State v. Rackich, 66 Wash. 390, 119 P. 843. A witness may testify as to the ages of the other mem- bers of his family.— State v. Rackich, 66 Wash. 390, 119 P. 843. Wyoming. One who has no personal knowledge of the amount of earnings of plaintiff at a place where he was employed cannot testify as to amounts so earned by read- ing from pay rolls which he did not prepare. — Acme Cement Plaster Co. v. Westman, 20 Wyo. 143, 122 P. 89. REPUTATION. Rumors, reputation and the like, unless coming under one of the exceptions treated in Chapter IV, are ordi- narily inadmissible as hearsay. California: Shepherd v. Turner, 129 Cal. 530, # 62 P. 106 (general repute as a highway). Idaho: Miller v. Village of Mullan, 17 Ida. 28, 104 P. 660 (rumors as to condition of sidewalk). Kansas: Blue v. Peter, 40 Kan. 701, 20 P. 442 (rumors that certain persons who had been resident electors had moved away). Nebraska: Hinckley v. Jewett, 86 Neb. 464, 125 N. W. 1086 (general understanding in the community as to con- tract to marry). Oregon: Gettins v. Hennessey, 60 Or. 566, 120 P. 369 (rumors as to members of a partnership) ; Spande v. Western Life Ins. Co., 61 Or. 220, 117 P. 973 (understand- ing of witness that another was held out as agent). Texas: McLane v. Elder, (Tex. Civ. App.), 23 S. W. 757 (reputation of insanity) ; First Nat. Bank v. McGinty, 29 Tex. Civ. App. 539, 69 S. W. 495 (same); Home Circle Soc. No. 1 v. Shelton, (Tex. Civ. App.), 81 S. W. 84 (repu- tation of health of insured at time of application) ; Knox HEARSAY 167 v. Robbins, (Tex. Civ. App.), 151 S. W. 1134 (reputation of insanity). Montana. Evidence as to the general reputation of a wife as being the owner of certain sheep is hearsay. — Finch v. Kent, 24 Mont. 268, 61 P. 653. Texas. General reputation that a certain person was a white woman is admissible. — Stewart v. Profit, (Tex. Civ. App.), 146 S. W. 563. Testimony of witnesses as to the result of inquiries about the death or whereabouts of a certain person, made in the county where he once lived, is inadmissible. — Wells v. Margraves, (Tex. Civ. App.), 164 S. W. 881. note vm. (To Article 14.) The unsatisfactory character of the definitions usually given of hearsay is well known. See Best, s. 495; T. E. ss. 507-510. [2 Wigmore Ev., § 1360 et seq.] The definition given by Mr. Phillips sufficiently exemplifies it: "When a wit- ness, in the course of stating what has come under the cog- nizance of his own senses concerning a matter in dispute, states the language of others which he has heard, or pro- duces papers which he identifies as being written by particu- lar individuals, he offers what is called hearsay evidence. This matter may sometimes be the very matter in dispute," &c. (1 Ph. Ev. 143). If this definition is correct, the maxim, "Hearsay is no evidence," can only be saved from the charge of falsehood by exceptions which make nonsense of it. By attaching to it the meaning given in the text, it becomes both intelligible and true. There is no real difference be- tween the fact that a man was heard to say this or that, and any other fact. "Words spoken may convey a threat, supply the motive for a crime, constitute a contract, amount to slander, &c, &c, and if relevant or in issue, on these or other grounds, they must be proved, like other facts, by the oath of someone who heard them. The important point to remember about them is that bare assertion must not, gen- erally speaking, be regarded as relevant to the truth of the matter asesrted. The doctrine of hearsay evidence was fully discussed by many of the judges in the case of Doe d. Wright v. Tatham on the different occasions when that case came before the court (see 7 A. & E. 313-408; 4 Bing. N. C. 489-573). The question was, whether letters addressed to a deceased tes- tator, implying that the writers thought him sane, but not acted upon by him, could be regarded as relevant to his san- ity, Which was the point in issue. The case sets the strin- gency of the rule against hearsay in a light which is forcibly illustrated by a passage in the judgment of Baron Parke (7 A. & E. 385-388), to the following effect: He treats the letters 168 ADMISSIONS DEFINED as "statements of the writers, not on oath, of the truth of the matter in question, with this addition, that they have acted upon the statements on the faith of their being true by their sending the letters to the testator." He then goes through a variety of illustrations which had been suggested in argument, and shows that in no case ought such state- ments to be regarded as relevant to the truth of the matter stated, even when the circumstances were such as to give the strongest possible guarantee that such statements ex- pressed the honest opinions of the persons who made them. Amongst others he mentions the following: "The conduct of the family or relations of a testator taking the same pre- cautions in his absence as if he were a lunatic — his election in his absence to some high and responsible office; the corm duct of a physician who permitted a will to be executed by a sick testator; the conduct of a deceased captain on a question of seaworthiness, who, after examining every part of a vessel, embarked in it with his family; all these, when deliberately considered, are, with reference to the matter in issue in each case, mere instances of hearsay evidence — mere statements, not on oath, but implied in or vouched by the actual conduct of persons by whose acts the litigant parties are not to be bound." All these matters are therefore to be treated as irrelevant to the questions at issue. These observations make the rule quite distinct, but the reason suggested for it in the concluding words of the pas- sage extracted appears to be weak. That passage implies that hearsay is excluded because no one "ought to be bound by the act of a stranger." That no one shall have power to make a contract for another or commit a crime for which that other is to be responsible without his authority is obviously reasonable, but it is not so plain why A's conduct should not furnish good grounds for inference as to B's conduct, though it was not authorized by B. The importance of shortening proceedings, the importance of compelling people to procure the best evidence they can, and the importance of excluding opportunities of fraud, are considerations which probably justify the rule excluding hearsay; but Baron Parke's illus- trations of its operation clearly prove that in some cases it excludes the proof of matter which, but for it, would be re- garded not only as relevant to particular facts, but as good grounds for believing in their existence. SECTION I. HEARSAY, WHEN RELEVANT. Article 15.* admissions defined. An admission is a statement oral or written, * See Note at end of Article. ADMISSIONS DEFINED 169 suggesting any inference as to any fact in issue or relevant or deemed to be relevant to any such fact, made by or on behalf of any party to any proceeding. Every admission is (subject to the rules hereinafter stated) deemed to be a relevant fact as against the person by or on whose behalf it is made, but not in his favor unless it is or is deemed to be relevant for some other reason. ADMISSIONS IN GENERAL. Arkansas. In an action by a passenger for injuries, the fact that doctors rendered bills to plaintiff and that he acquiesced in the amounts tends to establish that he was indebted to such doctors, and the amounts. — St. Louis, I. M. & S. Ry. Co. v. Hydrick, 109 Ark. 231, 160 S. W. 196. Admissions are evidence against a party, but he cannot annul or explain them away by counter declarations. — Hazen v. Henry, 6 Ark. 86; Nutter v. O'Donnell, 6 Colo. 253. California. The fact that admissions were made through an interpreter does not affect their admissibility. — Kelly v. Ning Yung Benev. Ass'n, 2 Cal. App. 460, 84 P. 321. That injury resulted from plaintiff's own fault, admis- sible.— Rudd v. Byrnes, 156 Cal. 636, 105 P. 957. Statements by the sole executor and beneficiary under a will are admissible. — Ricks Est., In re, 160 Cal. 467, 117 P. 539. Declarations against the validity of a will made by a residuary legatee charged with procuring its execution by undue influence, are admissible. — Purcell's Est., In re, 164 Cal. 300, 128 P. 932. Statement as to going about fifteen miles an hour and failure to blow a horn, admissible. — Scragg v. Sallee. 24 Cal. App. 133, 140 P. 706. Colorado. Defendant's failure to reply to a letter written by a third person, Btating that defendant had agreed to assume the debts of a firm, is not relevant. — Lee-Clark- Andreesen Hardware Co. v. Yankee, 9 Colo. App. 443, 48 P. 1050. 170 ADMISSIONS DEFINED Evidence of admissions tending to impeach plaintiff's claim that the note sued on belonged to a trust fund, is admissible. — Bottom v. Barton, 12 Colo. App. 53, 54 P. 1031. In order to render his account books admissible to show admissions against the party making them, it is only necessary that they be shown to be his books, kept in the regular course of business and that the entries were made by himself or an agent authorized to make them. — ■ Zang v. Wyant, 25 Colo. 551, 56 P. 565. The fact that defendant had settled for cattle killed by its train at the same time is admissible. — Chicago, R. I. & P. Ry. Co. v. Rhodes, 21 Colo. App. 229, 121 P. 769. Idaho. Proofs of death furnished by beneficiary admis- sible when offered by insurer. — Raiscot v. Royal Neighbors of America, 18 Idaho 85, 108 P. 1048. Kansas. The declarations of a party to the record are as against him admissible in evidence. — Greer v. Higgins, 8 Kan. 519. Montana. The fact that a lease and option to purchase a placer claim was made, amounts to a declaration by all parties thereto that the lessors owned the claim, and that the lessee did not.— Kift v. Mason, 42 Mont. 232, 112 P. 392. The fact that insured had violated his contract by en- gaging in a prohibited undertaking may be shown by the introduction of proofs of death. — Schwanekamp v. Modern Woodmen of America, 44 Mont. 526, 120 P. 806. Nebraska. In an action for the price of a machine state- ments of one of the plaintiffs as to the work it would do, its quality, and the nature of plaintiff's obligation in refer- ence to it, are admissible.— Carlson & Hanson v. Holm, 2 Neb. (unof.) 38, 95 N. W. 1125. Admissions made to third persons may be shown. — Al- len v. Hall, 64 Neb. 256, 89 N. W. 803. Statements of a party to a suit, to a third person, may be received in evidence against him, and are not open to the objection that they are hearsay evidence. — Allen v. Hall, 64 Neb. 256, 89 N. W. 803. Nevada. Every prior statement of a party to an accident exhibiting any inconsistency with his present claim or theory upon which he presumes to maintain his case is ADMISSIONS DEFINED . 171 admissible as tending to throw doubt upon it regardless of whether, at the time he was speaking, he made the utter- ances in his own favor, or against his own interest. — Peterson v. Pittsburg Silver Peak Gold Mining Co., 37 Nev. 117, 140 P. 519. New Mexico. Statements of ownership of property, made in a bond to release the same from attachment, are admis- sible. — Southern Car Mfg. & Supply Co. v. Wagner, 14 N. M. 195, 89 P. 259. North Dakota. The fact that a person pleaded guilty of assault before a justice, is admissible on a subsequent trial for the same offense although there were defects In the complaint before the justice. — Satham v. Muffle, 23 N. D. 63, 135 N. W. 797. An admission contained in defendant's answer in a for- mer suit of the amount owing by him to plaintiff, and a tender of such sum, though afterwards withdrawn, is com- petent testimony in plaintiff's behalf. — Horton v. Emerson, 30 N. D. 258, 152 N. W. 529. Oklahoma. A statement signed by the parties in settle- ment of items of account is admissible. — Miller v. Camp- bell Commission Co., 13 Okl. 75, 74 P. 507. Assessment lists handed in by taxpayer are admissible on the question of value of horses.— BartlesvUJe Inter- urban Ry. Co. v. Quaid, (Okl.), 151 P. 891. Oregon. In an action for loss of a money packaeg by an express company, a circular notice of defendant differing a reward for return of the package is competent evidence as an admission that defendant was liable for loss of the money. — Bennett v. Northern Pac. Exp. Co., 12 Or. 49, 6 P. 171. It may be shown as an admission of liability for negli- gence that defendant has settled with others in the same position as plaintiff. — Weiss v. Kohlhagen, 58 Or. 144, 113 P. 46. Admission of one of defendants that he was a member of the firm for which plaintiff was working is admissible as tending to establish the relation of master and serv- ant.— Dibert v. Giebisch, 74 Or. 64, 144 P. 1184. South Dakota. Statements of defendant made prior to a purchase of land by plaintiff, that he had no interest there- 172 ADMISSIONS DEFINED in are admissible. — Bliss v. Waterbury, 33 S. D. 214, 145 N. W. 435. Statements of plaintiff that if he had retained hold of the automobile wheel while going over a crossing the accident would not have happened. — Hauff & Stormo v. South Dakota Cent. Ry. Co., 34 S. D. 183, 147 N. W. 986. Texas. Evidence of admissions of a shortage made by a county treasurer after his term of office had expired is admissible against him, but not against his sureties, in an action upon his bond. — McParlane v. Howell, 16 Tex. Civ. App. 246, 43 S. W. 315. Original assessment lists admissible against the party making them. — Jones v. Cummins, 17 Tex. Civ. App. 661, 43 S. W. 854. Statements as to the location of a corner of a survey made by defendant before he had acquired an interest therein are inadmissible.— Bell v. Preston, 19 Tex. Civ. App. 375, 47 S. W. 375. A folder put out by a railroad company tending to show that it had an agent in a certain county admissible to refute claim that it had no such agent. — Southern Pac. Co. v. Allen, 48 Tex. Civ. App. 66, 106 S. W. 441. Evidence given by a party on a former trial may be used as an admission. — Littler v. Dielmann, 48 Tex. Civ. App. 392, 106 S. W. 1137. A folder published by defendant railroad companies ad- mitted in evidence as tending to show that they belonged to the same system. — Pecos & N. T. Ry. Co. v. Cox, (Tex. Civ. App.), 150 S. W. 265. Attorneys, assigned a one-half interest in a negligence case, may show, as an admission of negligence, that de- fendant had made a compromise with their assignor. — St. Louis, S. F. & T. Ry. Co. v. Thomas, (Tex. Civ. App.), 107 S. W. 784. Substitution of a different kind of a cattle guard at another crossing after plaintiff's mule was injured, ad- missible.— Stephenville N. & St. Ry. Co. v. Schrank, (Tex. Civ. App.), 175 S. W. 471. Utah. The admissions of a sole legatee may be shown against him.— Miller's Estate, In re, 31 Utah 415, 88 P. 338. Washington. Declarations of a party to the record against ADMISSIONS DEFINED 173 himself are admissible as independent evidence in chief. —Hart v. Pratt, 19 Wash. 560, 53 P. 711. JUDICIAL ADMISSIONS. In General. A plea of guilty on a criminal prosecution is admissible in another action involving the same facts, but is not conclusive. — Wesnieski v. Vanek, 5 Neb. (Unof.) 512, 99 N. W. 258; Meyers v. Dillon, 39 Or. 581, 65 P. 867. California. A stipulation admitting the truth of certain facts "upon the trial of the above entitled action" is ad- missible upon a new trial after reversal on appeal. — Nathan v. Dierssen, 146 Cal. 63, 79 P. 739. A verified statement of a claim against an estate may be used as an admission. — Pollitz v. Wickersham, 150 Cal. 238, 88 P. 911. Colorado. Matters of fact knowingly and intentionally admitted in the pleadings cannot afterwards be contra- dicted in the same case. The admission concludes the party, even though the jury find contrary to what is so confessed. (Amount admitted due, and offer to pay same.)— Harvey v. Denver & Rio G. R. Co., 56 Colo. 570, 139 P. 1098. Kansas. The general admission of a fact made by an at- torney in his opening address may be used as an admis- sion upon a second trial. — Missouri & K. Telephone Co. v. Vandevort, 67 Kan. 269, 72 P. 771. Nebraska. A plea of guilty entered by a defendant in a criminal case may be used against him in another action involving the same facts, as an admission on his part that he committed the acts charged in the criminal action, but such admission is not conclusive and may be contro- verted in the second action.— Wesnieski v. Vanek, 5 Neb. (Unof.) 512, 99 N. W. 258. Nevada. Admission by attorney in presence of plaintiffs, in a previous criminal prosecution, that certain lumber belonged to defendants, admissible. — Mirodias v. Southern Pac. Co., 38 Nev. 119, 145 P. 912. Oklahoma. Solemn or judicial admissions, made for the express purpose of dispensing with the proof of some fact at the trial, in the form of express stipulations, on being filed and becoming part of the record are generally con- clusive of all the facts involved, and may be given in evi- 174 ADMISSIONS DEFINED dence on any subsequent trial of the same cause. (Agreed statements of facts.) — Consolidated Steel & Wire Co. v. Burnham, 8 Okl. 514, 58 P. 654. A statement as to what an absent witness will testify, when set out in a motion for continuance, may be used in evidence, where to prevent continuance, the opposite party admits that the opposite party would so testify. — Grimes v. Wilson, 30 Okl. 322, 120 P. 294. An affidavit in replevin may be used in another action as an admission of the property therein described. — Stiller v. Atchison, T. & S. F. Ry. Co., 34 Okl. 45, 124 P. 595. Texas. The deposit of money by defendant in a justice court is an admission of indebtedness to that amount that may be used as evidence against him on appeal. — Low v. Griffin, (Tex. Civ. App.), 41 S. W. 73. That defendant pleaded guilty to a charge of assault and battery before a justice of the peace is admissible on a subsequent trial for damages. — Sumner v. Kinney, (Tex. Civ. App.), 136 S. W. 1192. The fact that a person alleged to be a partner In the pleadings of an action suffered a default therein may be used as an admission that he was such partner. — Miller v. Laughlin, (Tex. Civ. App.), 147 S. W. 711. Admissions In Pleadings. Admissions made in pleadings will bind the party in the suit in which they are filed, though they have been stricken out, amended or withdrawn. — Barton v. Laws, 4 Colo. App. 212, 35 P. 284; Shurtliff v. Extension Ditch Co., 14 Ida. 416, 94 P. 574; Reemsnyder v. Reemsnyder, 75 Kan. 565, 89 P. 1014; Arkansas City v. Payne, 80 Kan. 353, 102 P. 781; Elliff v. Oregon R. & Nav. Co., 53 Or. 66, 99 P. 76; Sayre v. Mohney, 35 Or. 141, 56 P. 526. Contra, Miles v. Woodward, 115 Cal. 308, 46 P. 1076; Ruddock Co. v. Johnson, 135 Cal. xix, 67 P. 680. Statements made in a pleading in another action are admissible against the one who made them. — Valley Plant- ing Co. v. Wise, 93 Ark. 1, 123 S. W. 768; Every v. Rains, 84 Kan. 560, 115 P. 114; Myers v. First Presbyterian Church, 11 Okl. 544, 69 P. 874; Feldman v. McGuire, 34 Or. 309, 55 P. 872; Johnson v. Hawthorne Ditch Co., 32 S. D. 499, 143 N. W. 959. ADMISSIONS DEFINED 175 Admissions made in an abandoned pleading are not conclusive. — Barton v. Laws, 4 Colo. App. 212, 35 P. 284; Bowes v. Cannon, 50 Colo. 262, 116 P. 336; Johnson v. Sheridan Lumber Co., 51 Or. 35, 93 P. 470. Kansas. While an abandoned pleading no longer serves to define the issues, it has some evidentiary force in the nature of an admission on the part of the pleader, and should be received in evidence for what it is worth. — Watt v. Missouri, K. & T. Ry. Co., 82 Kan. 458, 108 P. 811. Nebraska. Admissions made by a litigant in his pleading in a suit are competent evidence against those who subse- quently come into the suit as his successors in interest to the matter in litigation. — Miller v. Nicodemus, 58 Neb. 352, 78 N. W. 61S. Oklahoma. Admissions in pleading as to execution of a contract in an action dismissed without prejudice cannot be contradicted when offered in a subsequent action. — Myers v. First Presbyterian Church, 11 Okl. 544, 69 P. 874. Oregon. A complaint by a landlord in a suit against a sublessee is admissible in a suit by the lessee to recover a deposit given as security for payment of rent. — Meagher v. Eiler's Music House, 77 Or. 70, 150 P. 266. South Dakota. When an original complaint or answer contains an admission of a material fact which a party desires to establish on a trial, it may be received in evi- dence as are other written declarations and admissions. — II C. Behjrens Lumber Co. v. Lager, 26 S. D. 160, 128 NT, W. 698. It is immaterial whether the court in which it was filed had jurisdiction. — Redwater Land & Canal Co. v. Reed, 2(i S. D. 466, 128 X. W. 702. Texas. An abandoned pleading may be used as an admis- sion, though not verified. — Ft. Worth & D. C. Ry. Co. v. Wright, 27 Trx Civ. App. 19S, 64 S. W. 1001. An original and abandoned petition alleging that plain- tiff's injury was the result of the overcrowded condition of a hand car is admissible as an admission of the falsity of the claim set up in an amended petition seeking to re- cover upon the ground of negligence of the brakeman to observe and obey a signal to stop the car. — Galloway v. San Antonio & G. Ry. Co., (Tex. Civ. App.), 78 S. W. 32. Statements in pleadings are admissible in evidence 176 ADMISSIONS DEFINED against the party filing them without regard to whether the pleading was verified. — Wilkins v. Clawson, 50 Tex. Civ. App. 82, 110 S. W. 103. Statements made in abandoned pleadings are admissible. —Houston, E. & W. T. Ry. Co. v. DeWalt, 96 Tex. 134', 70 S. W. 531; Lantry-Sharpe Contr. Co. v. McCracken, (Tex. Civ. App.), 134 S. W. 363. (Contradictory decisions on this point cited.) Washington. Where defendants did not deny an allega- tion in an amended complaint denying a former marriage •of plaintiff's deceased husband, they could not introduce the original complaint admitting such fact. — Goldwater v. Burnside, 22 Wash. 215, 60 P. 409. EXPLANATION OF ADMISSIONS. Arkansas. Whenever an admission of a party is given in evidence against him, whatever was said by him at the time that would in any way qualify or explain it is also admissible. — Adkins v. Hershy, 14 Ark. 442. South Dakota. The party against whom is offered an ad- mission made in a former pleading may show that the declaration or admission was inserted through inadver- tence by his own mistake, or by the mistake of his attor- ney. — H. C. Behrens Lumber Co. v. Lager, 26 S. D. 160, 128 N. W. 698. Texas. Where plaintiff introduces evidence tending to show admissions of defendant as to promise to pay for lumber delivered to another, defendant may explain the facts and circumstances under which he made them, which might tend to show that he did not intend to be bound thereby. — Bartley v. Comer, (Tex. Civ. App.), 89 S. W. 82. It is always competent for the party against whom the pleading is offered to show that the statement was in- advertently made, or was not authorized by him, or made under a mistake of fact. — Wilkins v. Clawson, 50 Tex. Civ. App. 82, 110 S. W. 103. Washington. To counteract an admission made in a veri- fied pleading the party against whom it is offered may show that it was inserted by mistake. — Goldwater v. Burn- side, 22 Wash. 215, 60 P. 409. When evidence is admitted showing that one suing for personal injuries stated the accident was his own fault. ADMISSIONS DEFINED 177 he may introduce evidence of contradictory statements made by him. — Conover v. Neher-Ross Co., 38 Wash. 172, 80 P. 281. PROOF AND EFFECT. Nevada. Admissions are not conclusive as to the effect of what declarant stated. — Peterson v. Pittsburg Silver Peak Gold Min. Co., 37 Nev. 117, 140 P. 519. New Mexico. The admission by a party to a suit of a material fact, which in and of itself is sufficient to defeat or authorize a recovery, affords substantial evidence suf- ficient to support a verdict based thereon in the appellate court. (Admission that payments had been made in ex- cess of amount authorized by contract.) — Lyons v. Kit- chell, 18 N. M. 82, 134 P. 213. North Dakota. Unless admissions are contractual they are not usually conclusive, but are open to rebuttal or ex- planation, or they may be controlled by higher evidence. —Oakland v. Nelson, 28 N. D. 456, 149 N. W. 337. NOTE IX. (To Article 15.) This definition is intended to exclude admissions by plead- ing, admissions which, if so pleaded, amount to estoppels, and admissions made for the purposes of a cause by the par- ties or their solicitors. These subjects are usually treated of by writers on evidence; but they appear to me to belong to other departments of the law. The subject, including the matter which I omit, is treated at length in 1 Ph. Ev. 308- 401, and T. E. ss. 653-788. (1 Greenl. Ev., § 169 et seq.) A vast variety of cases upon admissions of every sort may be found by referring to Roscoe, N. P. (Index, under the word Admissions.) It may perhaps be well to observe that when an admission is contained in a document, or series of docu- ments, or when it forms part of a discourse or conversation, so much and no more of the document, series of documents, discourse or conversation, must be proved as is necessary for the full understanding of the admission, but the judge or jury may of course attach degrees of credit to different parts of the matter proved. This rule is elaborately dis- cussed and Illustrated by Mr. Taylor, ss. 655-665. It has Lost much of the importance which attached to it when par- tics to actions could not be witnesses, but could be compelled to make admissions by bills of discovery. The ingenuity of equity draughtsmen was under that system greatly exer- cised in drawing answers in such a form that it was impos- sible to read part of them without reading the whole, and 178 WHO MAY MAKE ADMISSIONS the ingenuity of the court was at least as much exercised in countermining their ingenious devices. The power of administering interrogatories, and of examining the parties directly, has made great changes in these matters. Article 16.* who may make admissions on behalf of others, and' WHEN. Admissions may be made on behalf of the real party to any proceeding — By any nominal party to that proceeding; (2 Wigmore Ev., § 1076.) By any person who, though not a party to the proceeding, has a substantial interest in the event ; (2 Wigmore Ev., § 1076.) By any one who is privy in law, in blood, or in estate to any party to the proceeding on behalf of that party. (2 Wigmore Ev., § 1076.) A statement made by a party to a proceeding may be an admission whenever it is made, unless it is made by a person suing or sued in a repre- sentative character only, in which case [it seems] it must be made while the person making it sus- tains that character. (2 Wigmore Ev., § 1076.) A statement made by a person interested in a proceeding, or by a privy to any party thereto, is not an admission unless it is made during the con- tinuance of the interest which entitles him to make it (and only as affecting his interest). * See Note at end of Article. WHO MAY MAKE ADMISSIONS 179 Illustrations. (a) The assignee of a bond sues the obligor in the name of the obligee. An admission on the part of the obligee that the money due has been paid is deemed to be relevant on behalf of the defendant. — 1 (b) An admission by the assignee of the bond in the last illustration would also be deemed to be relevant on behalf of the defendant. (c) A statement made by a person before he becomes the assignee of a bankrupt is not deemed to be relevant as an admission by him in a proceeding by him as such assignee. — 2 (d) Statements made by a person as to a bill of which he had been the holder are deemed not to be relevant as against the holder, if they are made after he has negotiated the bill.— 3 PARTIES OF RECORD. The declarations of a party to the record are as agains'. him admissible in evidence. — Greer v. Higgihs, 8 Kan. 519; Carlson & Hanson v. Holm, 2 Neb. (Unof.) 38, 95 N. W. 1125; Anderson v. Adams, 43 Or. 621, 74 P. 215; Hart v. Pratt, 19 Wash. 560, 53 P. 711. Colorado. Sec. 7284 of the Revised Statutes, providing for the cross-examination of an adverse party, has not the effect to deprive a party of the advantage of prior admis- sions by an adversary. — Grand Lodge A. O. U. W. v. Tay- lor. 24 Colo. App. 106, 131 P. 783. The testimony of one of several joint plaintiffs, given in the first trial of a cause, may be read for the defendant at the second trial as an admission against interest, even though the party so testifying is present in court at such trial.— Grand Lodge A. O. U. W. v. Taylor, 24 Colo. App. 106, 131 P. 783. Texas. Statements of a person, before acquisition of land by him, that the corner of the tract was at a certain point, are inadmissible against him after he had acquired an in- 1 See Moriarty v. L,. C. & D. Co., L. R. 5 Q. B. 320.' 2 Fenwick v. Thornton, M. & M. 51 (by Lord Tenterden). In Smith v. Morgan, 2 M. & R. 257, Tindal, C. J., decided ex- actly the reverse. Dodge v. Freedman's Savings, &c. Co., 93 U. S. 379, and cases cited; but see Hunt v. Haven, 56 N. H. 87. 3 Pocock v. Billing, 2 Bing. 269. 180 WHO MAY MAKE ADMISSIONS terest therein. — Bell v. Preston, 19 Tex. Civ. App. 375, 47 S. W. 375. The admissions of a party while testifying in a former suit are admissible against him. (As to sales of liquor to plaintiff's husband.) — Birkman v. Fahrenthold, 52 Tex. Civ. App. 335, 114 S. W. 428. NOMINAL PARTIES. Texas. The admissions of an assignor, made a mere for- mal party to a suit, are inadmissible to bind the assignee. —Hall v. Clountz, 26 Tex. Civ. App. 348, 63 S. W. 941. PARTIES INTERESTED. See Art. 17. Admissions by a person having a joint interest in prop- erty are admissible, whether or not he is a party of record. — Kilburn v. Ritchie, 2 Cal. 145; Hardy v. De Leon, 5 Tex. 211; Tuttle v. Turner, 28 Tex. 759. Idaho. It was not error for the court to permit the wit- ness to testify to declarations made to him by one of the defendants. — Rosnagle v. Armstrong, 17 Idaho 246, 105 P. 216. Kansas. In an action for damages for negligently causing death, brought by an administrator for the benefit of the next of kin, statements of the latter that deceased had not been of any pecuniary assistance to them are admis- sible.— Atchison, T. & S. F. Ry. Co. v. Ryan, 62 Kan. 682, 64 P. 603. In an action against one who asserts that he is only a nominal party, and that another is the real party in in- terest, the former cannot be heard to complain if on the trial the court permits the admissions of such real party in interest relating to the subject in controversy to be given in evidence. — Brown v. Brown, 62 Kan. 666, 64 P. 599. South Dakota. Where the transfer of a note was fraud- ulent and for the purpose of cutting off the defense of the maker of the note against such fraud and circumven- tion, the original payee is still deemed to.be the owner thereof, and statements made by him are competent and proper evidence to go to the jury on the question of fraud- ulent intent in the inception of the note sued on. — First Nat. Bank v. Harvey, 29 S. D. 284, 137 N. W. 365. Washington. Declarations of one who was to share in WHO MAY MAKE ADMISSIONS 181 the commission with plaintiff in a real estate deal, are ad- missible in an action for such commissions. — Kinnane v. Conroy, 52 Wash. 651, 101 P. 223. PRIVIES IN LAW. Nebraska. Admissions made by a litigant in his plead- ing are competent evidence against those who subsequent- ly come into the suit as his successors in interest. — Mil- ler v. Nicodemus, 58 Neb. 352, 78 N. W. 618. PRIVIES IN ESTATE. A tenant in possession cannot by his admissions injure the title of his landlord. — Westenfelder v. Green, 24 Or. 448, 34 P. 23; Hurley v. Lockett, 72 Tex. 261, 121 S. W. 212. Texas. Statements of a tenant adverse to the title of his landlord are inadmissible. — Warren v. Fredericks, 76 Tex. 647, 13 S. W. 643. Admissions of lessor as to leasing the property and de- livering possession are admissible as against one who claimed under him.— Edwards v. Old Settlers Ass'n, (Tex. Civ. App.), 166 S. W. 423. Grantor Before Conveyance. Declarations made by an owner, or one in possession of property, as to rights of others therein, are admissible. — Costello v. Graham, 9 Ariz. 257, 80 P. 336; Daly v. Joss- lyn, 7 Ida. 657, 65 P. 442; Phillips v. Coburn, 28 Mont. 45, 72 P. 291; Mam v. Stephens, (Tex. Civ. App.), 93 S. W. 158. Idaho. Declarations of a grantor, made before the execu- tion of a deed to one of his children, touching his feelings towards his children, or his intended disposition of his property, are not admissible to impeach the deed. — Kelly v. Perrault, 5 Ida. 221, 48 P. 45. Declarations made by a grantor prior to the execution of a deed, and inconsistent with its execution, are not admissible.— Turner v. Gumbert, 19 Ida. 339, 114 P. 33. South Dakota. The complaint in an action by plaintiff's grantor against one H.. to recover for water used by H., in which plaintiff's grantor stated the amount of water used by surh grantor, aro admissible as against interest. — ' Redwater Land & Canal Co. v. Reed, 26 S. D. 466, 128 N. W. 702. Texas. Declarations of a grantor made before the execu- tion of an instrument are not competent to prove fraud or duress, but if made at the time the instrument was 182 WHO MAY MAKE ADMISSIONS executed, are admissible as part of the res gestae. — Rankin v. Rankin, 105 Tex. 451, 151 S. W. 527. Declarations or admissions in disparagement of title, made before the execution of a deed, though admissible against the grantee, are not admissible as against an in- nocent purchaser. — Raynor v. Posey, (Tex. Civ. App.), 173 S. W. 246. Grantor After Conveyance. Evidence of declarations of an owner of land, made after he had conveyed his title, are inadmissible as against his grantee. — Packard v. Johnson, (Cal.), 4 P. 632; Taylor v. Central Pac. R. Co., 67 Cal. 615, 8 P. 436; Banning v. Marleau, 121 Cal. 240, 53 P. 692; Henderson v. Hart, 122 Cal. 332, 54 P. 1110; Bollinger v. Bollinger, 154 Cal. 695, 99 P. 196; Vote v. Carrick, 13 Colo. App. 388, 58 P. 333; Meyer v. Munro, 9 Ida. 46, 71 P. 969; Consolidated Tank Line Co. v. Pien, 44 Neb. 887, 62 N. W. 1112; O. S. Paulson Merc. Co. v. Seaver, 8 N. D. 215, 77 N. W. 1001; Woods v. Faurot, 14 Okl. 171, 77 P. 346; Krewson v. Pur- dom, 11 Or. 266, 3 P. 822;. Smith v. Gillum, 80 Tex. 120, 15 S. W. 794; Smith v. Dunman, 9 Tex. Civ. App. 319, 29 S. W. 432; Phillips v. Sherman, (Tex. Civ. App.), 39 S. W. 187 (statements as to deeding in trust) ; Mam v. Stephens, (Tex. Civ. App.), 93 S. W. 158; Brown v. Yoakum, (Tex. Civ. App.), 170 S. W. 803. Declarations or admissions of a grantor, made after he has parted with the title, are not competent to defeat such title, where there is no evidence of fraud or con- spiracy against creditors. — Smith v. Wilson, 5 Kan. App. 379, 48 P. 436; Zobel v. Rauersachs, 55 Neb. 20, 75 N. W. 43; Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308; Smith v. James, (Tex. Civ. App.), 42 S. W. 792; Snow v. Rich, 22 Utah 123, 61 P. 336. The declarations of a vendor, made after the sale and not being a part of the transaction, are not admissible in evidence as against the vendee: Nevada: Perley v. Forman, 7 Nev. 309 (that vendee was informed of plaintiff's rights in the property). Texas: Copp v. Swift, (Tex. Civ. App.), 26 S. W. 438 (as to his intention in attaching personal property to free- hold). WHO MAY MAKE ADMISSIONS 183 Declarations of a grantor showing fraud in the convey- ance are admissible to show a sale fraudulent as to creditors: California: Canning v. Marleau, 133 Cal. 485, 65 P. 964 (transfer colorable, with no change of possession). Montana: Pincus v. Reynolds, 19 Mont. 564, 49 P. 145 (admissible even if the grantee was not present; on the principle of declarations of conspirators). Oregon: Walker v. Harold, 44 Or. 205, 74 P. 705 (after execution of deed; statements in a petition to cancel a mortgage). Texas: Thompson v. Rosenstein, (Tex. Civ. App.), 67 S. W. 439 (declarations showing fraud). Arizona. Declarations of a grantor as to the purpose of a deed, made after its execution, are inadmissible. — Miller v. Miller, 7 Ariz. 316, 64 P. 415. Arkansas. Statements of a grantor that he had delivered a deed are admissible. — Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244. That the grantee had no interest therein, inadmissible. —Foster v. Beidler, 79 Ark. 418, 96 S. W. 175. Declarations of an owner of property made after execu- tion of a deed, tending to impeach the instrument, are inadmissible.— Hargus v. Hayes, 8-3 Ark. 186, 103 S. W. 163. California. Statements made by a grantor after execu- tion of deed, that it was made in trust, are inadmissible. — Bollinger v. Bollinger, 154 Cal. 695, 99 P. 196. Declarations, acts and conduct of a grantor after the execution of a deed, while it was held by a depository, are admissible as to whether there had been a delivery of such deed.— Williams v. Kidd, 170 Cal. 631. 151 P. 1. Colorado. Declarations of a grantor, made after a con- veyance, as to his purpose in transferring the property to prevent creditors from attaching, are inadmissible, where the grantee had no notice of his fraudulent purpose. — Jefferson County Bank v. Hummel. 11 Colo. App. 337, 53 P. 286. Idaho. Statements in a mortgage of an upper tract of land as to water rights mortgaged therewith are not ad- missible to show the extent of water rights intended to be conveyed in a prior mortgage of a lower tract to another party.— Josslyn v. Daly, 15 Ida. 137, 96 P. 568. 184 WHO MAY MAKE ADMISSIONS Kansas. Declarations of a vendor of cattle, made several months after a transfer of them to his wife, as to his purpose in making the transfer, are inadmissible. — Smith v. Wilson, 5 Kan. App. 379, 48 P. 436. Oklahoma. Declarations of a mortgagor after the execu- tion of the instrument, impeaching it, or showing that it was without consideration, or that he did not have a legal right to mortgage, are inadmissible. — First Nat. Bank of Enid v. Yoeman, 17 Okl. 613, 90 P. 412. Oregon. The default or confession of a debtor, made a party in a suit to set aside his conveyance as in fraud of creditors, cannot bind his vendee. — Ball v. Danton, 64 Or. 184, 129 P. 1032. Grantor In Possession After Conveyance. Declarations of a grantor, made after conveyance, but while he holds possession, are admissible to show fraud: Nevada: Gregory v. Frothingham, 1 Nev. 253 (that he held the land as part owner). Texas: Cooper v. Friedman, 23 Tex. Civ. App. 585, 57 S. W. 581 (that sale was simulated for the purpose of keeping his creditors from seizing it). California. Declaration of a grantor in possession after a conveyance, but only as manager, that the property was still his, is inadmissible. — Scholle v. Finnell, 167 Cal. 90, 138 P. 746. Kansas. Declarations of one who, after a deed of land by himself and wife to his brother, treated the land as his own, and received rent for it, that he still owned the land which he had deeded to his brother to defraud his wife, are admissible.— Watts v. Myers, 93 Kan. 824, 145 P. 827. Vendor of Personal Property Before Transfer. Declarations of one in possession of personal property, in disparagement of his title, or explanatory of the char- acter of his possession, are admissible: California: Visher v. Webster, 8 Cal. 109 (showing sale made to defraud). Kansas: Wiggins v. Foster, 8 Kan. App. 579, 55 P. 350. Nebraska: Cunningham v. Fuller, 35 Neb. 58, 52 N. W. 836; Benton v. Sikyta, 84 Neb. 808, 122 N. W. 61 (of payee of note, tending to impeach validity, admissible against a person not an innocent holder). WHO MAY MAKE ADMISSIONS 185 Oklahoma: Frick v. Reynolds, 6 Okl. 638, 52 P. 391 (to same effect) ; Rauh v. Morris, 40 Okl. 288, 137 P. 1174 (in- tention to defeat creditors, made before or at time of alleged fraudulent sale). South Dakota: M. Rumely Co. v. Anderson, 35 S. D. 114, 150 N. W. 939 (assignor of note while in possession after maturity). Wyoming: Toms v. Whitmore, 6 Wyo. 220, 44 P. 56 (on question of fraud). Contra, Deasey v. Thurman, 1 Ida. 775; O'Brien v. Hil- burn, 22 Tex. 616. California. Declarations of a vendor of personal prop- erty, while in possession before a sale, are admissible. — Smith v. Goethe, 159 Cal. 628, 115 P. 223. Utah. Declarations in disparagement of title made before an assignment are admissible. — McCormick v. Sadler, 14 Utah 463, 47 P. 667. Vendor of Personal Property After Transfer. Evidence of admissions of a vendor or mortgagor of personal property made after a sale or mortgage thereof, are not admissible as against his vendee or mortgagee. — Banning v. Marleau, 121 Cal. 240, 53 P. 692; Henderson v. Hart, 122 Cal. 332, 54 P. 1110; Vote v. Carrick, 13 Colo. App. 388, 58 P. 333; Meyer v. Munro, 9 Ida. 46, 71 P. 969; Scheble v. Jordan, 30 Kan. 353, 1 P. 121; Williams v. Eikenbury, 25 Neb. 721, 41 N. W. 770; Lewis v. Wilcox. 6 Nev. 217; Woods v. Faurot, 14 Okl. 171, 77 P. 346; Aldous v. Olverson, 17 S. D. 190, 95 N. W. 917; Boaz v. Schneider, 69 Tex. 128, 6 S. W. 402; Crawford v. Hord, 40 Tex. Civ. App. 352, 89 S. W. 1097; Toms v. Whitmore, 6 Wyo. 220, 44 P. 56. The declarations of an assignor of property for the benefit of creditors made after assignment are not admis- sible for the purpose of impairing the title of the assignee. —Brock v. Schradsky, 6 Colo. App. 402, 41 P. 512; Carle- ton v. Baldwin, 27 Tex. 572; Hairgrove v. Millington, 8 Kan. 480. Arkansas. A drawer's statements after acceptance of his draft and payment to his account, inadmissible. — Cox Wholesale Grocery Co. v. National Bank, 107 Ark. 601, 156 S. W. 187'. 186 WHO MAY MAKE ADMISSIONS Declarations of a vendor of chattels after parting with possession, showing fraud, and that he claimed to still be the owner, are inadmissible. — Collin County Grain Co. v. Andrews, 110 Ark. 597, 162 S. W. 1098. Kansas. Subsequent statements of a grantor are admis- sible to show whether a deed was made as a gift or an advancement— Martin v. Shumway, 89 Kan. 892, 132 P. 993. Montana. Declarations of a vendor of personal property, while still in possession, after the sale, are admissible to show a fraudulent sale. — Gallick v. Bordeaux, 22 Mont. 470, 56 P. 961. Nebraska. The purchaser of a note is unaffected by the statements of one who has parted with title and posses- sion.— Zobel v. Bauersachs, 55 Neb. 20, 75 N. W. 43. Declarations of a vendor of personal property, made after delivery of possession, are admissible, where fraud as to creditors is charged. — Armagast v. Rising, 54 Neb. 763, 75 N. W. 534; Kyd v. Cook, 56 Neb. 71, 76 N. W. 524. Declarations of intent to place property out of reach of creditors, made in presence of vendee after taking pos- session, but before payment of consideration, admissible. —Bender v. Kingman, 62 Neb. 469, 87 N. W. 142. Texas. Declarations of a vendor, made after a sale, and without the presence or knowledge of the vendee, are in- admissible to defeat the vendee's title. — Smith v. Jamea, (Tex. Civ. App.), 42 S. W. 792; Sanger v. Jesse French Piano & Organ Co., 21 Tex. Civ. App. 523, 52 S. W. 621. The declarations of an assignor of property subsequent to the assignment that tend to defeat the assignment are not admissible in evidence, though the assignor has since died.— Crawford v. Hord, 40 Tex. Civ. App. 352, 89 S. W. 1097. DECLARATIONS OF ANCESTOR OR DECEDENT. Declarations of a decedent that certain property be- longed to another are admissible against his administra- tor. — Byrne v. Reed, 75 Cal. 277, 17 P. 201; Bush v. Barron, 78 Tex. 5, 14 S. W. 238. Statements against interest, made by ancestor or de- ceased, are admissible against heirs or personal represen- tatives.— Ruedas v. O'Shea, (Tex. Civ. App.), 127 S. W. 891; Corbett v. Weaver, 59 Wash. 248, 109 P. 803. WHO MAY MAKE ADMISSIONS 187 Arkansas. A statement of a deceased employee as to the cause of his injuries are inadmissible to bind his widow and children. — Kansas City Southern Ry. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83. California. Statements of a grantor as to why she exe- cuted a deed are admissible against her representatives.— Broaddus v. Monroe, 13 Cal. App. 464, 110 P. 158. Testator's declarations subsequent to making a will, not admissible to establish a trust as to property held by a residuary legatee. — Francoeur v. Beatty, 170 Cal. 740, 151 P. 123. Kansas. Statements by decedent as to what she proposed to do for plaintiff by will is relevant to prove contract to compensate plaintiff for services by adequate provision in her will.— Bonebrake v. Tauer, 67 Kan. 827, 72 P. 521. Montana. Declarations of an intestate, made after con- veyance, pointing out property transferred, are admissible against his administrator. — Collins v. McKay, 36 Mont. 123, 92 P. 295. Oregon. Admissions of an intestate showing his own il- legitimacy are admissible as against those claiming under him.— State v. McDonald, 55 Or. 419, 104 P. 967. Texas. Declarations of ancestor as to purpose in laying out a square admissible to show a dedication of a public square. — Scott v. Rockwell County, (Tex. Civ. App.), 49 S. W. 932. DECLARATIONS OF INSURED. Declarations of an insured showing that he contem- plated suicide are inadmissible. — Jenkin v. Pacific Mut. Life Ins. Co., 131 Cal. 121, 63 P. 180; Klein v. Knights and Ladies of Security, 87 Wash. 179, 151 P. 241. Arizona. Statements of an insured made in an affidavit when registered as a voter are inadmissible to contradict his statements of age in application for insurance. — Logia Suprema de LaAlianza Hispano-Americano v. De Aguirre. 14 Ariz. 390, 129 P. 503. California. Declarations of insured after date of policy admissible to charge beneficiary where the insured had reserved the right to change beneficiary. — McEwen v. New York Life Ins. Co., 23 Cal. App. 694, 139 P. 242. Kansas. Declarations of an insured after his application 188 WHO MAY MAKE ADMISSIONS are admissible to impeach its truthfulness. — Washington Life Ins. Co. v. Haney, 10 Kan. 525. Nebraska. Statements of an insured tending to show his idea of his standing with the association are admissible against the beneficiary. — Ogden v. Sovereign Camp, Wood- men of the World, 78 Neb. 804, 111 N. W. 797. Washington. Declarations of an insured in a mutual bene- fit association are admissible against the beneficiary. — Armstrong v. Modern Woodmen of America, (Wash.), 160 P. 949. TRUSTEES, GUARDIANS AND ADMINISTRATORS. The acts and declarations of a trustee or administrator, while not engaged in the business of the trust, are inad- missible: Arkansas: Fargason v. Edrington, 49 Ark. 207, 4 S. W. 763 (by trustee in trust deed, before he became trustee, affecting the title of the property) ; Prater v. Frazier, 11 Ark. 249 (by administrator, made during life of intestate). Colorado: Belknap Sav. Bank v. Lamar Land & Canal Co., 28 Colo. 236, 64 P. 212 (by trustee, charged with being faithless to his trust). Nebraska: Reed v. Beardsley, 6 Neb. 493 (as to consid- eration of deed, made to vendee by naked trustee holding legal title merely for convenience of transfer). Texas: Gilbert v. Odum, 69 Tex. 470, 7 S. W. 510 (by ad- ministrator, in form of affidavit in county court in progress of administration, that he had become satisfied that one- half of certain property set out and claimed by the estate was the property of another). Admissions by guardians against the interests of their wards, whether made in courf proceedings, pleadings or otherwise, are incompetent to bind ninors or incompe- tents: California: Hayden v. Collinr 1 CaV App. 259, 81 P. 1120 (conversations between defenda.:: r.irl guardian of incom- petent, who was suing in ejectment, as to agreement be- tween defendant and the incompetent as to the property) ; Kidwell v. Ketler, 146 Cal. 12, 79 P. 514 (admissions in pleadings). Colorado: Hutchinson v. Laughlin, 15 Colo. 492, 25 P. 317 (admissions in pleading) ; Fetta v. Vandevier, 3 Colo. WHO MAY MAKE ADMISSIONS 189 App. 419, 34 P. 168, affirmed in Vandevier v. Fetta, 20 Colo. 368, 38 P. 466 (failure of guardian to object to Incompe- tent testimony) ; Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (plea of infancy by guardian ad litem, in suit to enforce contract). North Dakota: Stevens v. Continental Casualty Co., 12 N. D. 463, 97 N. W. 862 (statements of cause of death of parent of minors suing by guardian on insurance policy). Oregon: Westenfelder v. Green, 24 Or. 448, 34 P. 23 (by guardian, holding lands under appointment as guardian, that he holds the lands for certain third persons). Texas: Phillips v. Herndon, 78 Tex. 378, 14 S. W. 510 (acts and declarations of grandfather of minors, before he became their guardian). The declarations of an executor or administrator before his appointment are not admissible against him in his representative capacity: Oregon: Williams v. Culver, 39 Or. 337, 64 P. 763 (as to payment of a note to decedent). Texas: Lindsey v. White, (Tex. Civ. App.), 61 S. W. 438 (as to insanity of testatrix). Oklahoma. In an action by an infant through his guar- dian, the admissions of the guardian as to the value of the property for destruction of which recovery is sought is inadmissible. — Missouri O. & G. Ry. Co. v. Gentry, 31 Okl. 579, 122 P. 537. Oregon. Declarations of the receiver of a bank as to the receipt by the bank of a draft prior to his appoint- ment are inadmissible. — First Nat. Bank v. Linn County Nat. Bank, 30 Or. 296, 47 P. 614. NOTE X. j (To Article 16.) As to admissions by parties, see Morlarty v. L. C. & D. Railway, L. R. 5 Q. B. 320, per Blackburn, J.; Alner v. George, 1 Camp. 392; Bauerman v. Radenius, 7 T. R. 663. As to admissions by parties interested, see Spargo v. Brown, 9 B. & C. 938. [2 Wigmore Ev„ § 1048 et seq.] See also on the subject of this article, 1 Ph. Ev. 362-363, 369, 398. and T. E. ss. 669-671, 685, 687, 719; Roscoe, N. P. 71. As to admissions by privies, see 1 Ph. Ev. 394-397 and T. E. (from Greenleaf) s. 712. [2 Wigmore Ev., §§ 1077-1087.] 190 ADMISSIONS BY AGENTS Article 17.* admissions by agents and persons jointly interested with parties. Admissions may be made by agents authorized to make them either expressly or by the conduct of their principals; but a statement made by an agent is not an admission merely because if made by the principal himself it would have been one. (a) A report made by an agent to a principal is not an admission which can be proved by a third per- son. — b. Partners and joint contractors are each other's agents for the purpose of making admissions against each other in relation to partnership transactions or joint contracts. Barristers and solicitors are the agents of their clients for the purpose of making admis- sions whilst engaged in the actual management of the cause, either in court or in correspondence relating thereto; but statements made by a bar- rister or solicitor on other occasions are not ad- missions merely because they would be admissions if made by the client himself. The fact that two persons have a common in- terest in the same subject matter does not entitle them to make admissions respecting it as against each other. a [2 Wigmore Ev., § 1078; 3 Id., § 1797.] b Re Devala Co., 22 Ch. Div. 593. c 9 Geo. IV, c. 14, s. 1. The first set of words in paren- thesis was added by 19 and 20 Vict., c. 97, s. 13; the second set by s. 14 of the same Act. The language is slightly al- tered. ADMISSIONS BY AGENTS 191 In cases in which actions founded on a simple contract have been barred by the Statutes of Lim- itations no joint contractor nor his personal rep- resentative loses the benefit of such statute, by reason only of any written acknowledgment or promise made or signed by [or by the agent duly authorized to make such acknowledgment or promise of] any other or others of them [or by reason only of payment of any principal, interest, or other money, by any other or others of them.] (c) A principal, as such, is not the agent of his surety for the purpose of making admissions as to the matters for which the surety gives se- curity. Illustrations. (a) The question is, whether a parcel, for the loss of which a railway company is sued, was stolen by one of their serv- ants. Statements made by the station master to a police officer, suggesting that the parcel had been stolen by a porter, are deemed to be relevant, as against the railway, as admis- sions by an agent. — 1 In i l'h. Ev. 420, and T. E. s. 804. See, too, Joy, sections 111., iv., v. [1 Wigmore Ev . § 851.] 232 CONFESSIONS MADE UNDER A PROMISE nishing accused with intoxicating liquors, and then plying him with questions, it is inadmissible. — McNutt v. State, 68 Neb. 207, 94 N. W. 243. California. In a criminal case words uttered by defend- ant while sleeping are not admissible against him. — Peo- ple v. Robinson, 19 Cal. 41. Nebraska. Confession of a suspected party induced by deceit of a detective in the guise of a friend is admissible. — Heldt v. State, 20 Neb. 492, 30 N. W. 626. Texas. The fact that defendant was intoxicated at the time of a confession affects its weight, but not its admis- sibility.— White v. State, 32 Tex. Cr. R. 623, 25 S. W. 784. A confession secured by a detective through gaining the confidence of accused by boasting of his own prowess as a criminal and murderer, is admissible. — Spencer v. State, 48 Tex. Cr. R. 580, 90 S. W. 638. CAUTION OR WARNING. In the absence of statute, a confession made by one in custody, not induced by threats, promises or inducements held out, is admissible, though defendant is not warned. — Greenwood v. State, 107 Ark. 568, 156 S. W. 427; Dewein v. State, 114 Ark. 472, 170 S. W. 582; State v. Mircovich, 35 Nev. 485, 130 P. 765. Colorado. A caution is not necessary. — Reagan v. Peo- ple, 49 Colo. 316, 112 P. 785. Montana. Sufficient caution and warning, on the facts. — State v. Berberick, 38 Mont. 423, 100 P. 209. Oklahoma. Where a confession was voluntary, it is im- material that accused was in jail under arrest and had not been warned. — Anderson v. State, 8 Okl. Cr. App. 90, 126 P. 840. Texas. By statute, a warning must be given when accused is in custody.— Henry v. State, 38 Tex. Cr. R. 306, 42 S. W. 559; Robertson v. State, 54 Tex. Cr. R. 21, 111 S. W. 741; Gaston v. State, 55 Tex. Cr. R. 270, 116 S. W. 582; Burton v. State, 62 Tex. Cr. R. 402, 137 S. W. 1145; Over- street v. State, (Tex. Cr. R.), 150 S. W. 899; Brown v. State, 71 Tex. Cr. R. 45, 158 S. W. 533; Fowler v. State, 71 Tex. Cr. R. 1, 158 S. W. 1117; Chism v. State, 71 Tex. Cr. R. 389, 159 S. W. 1185; Hill v. State, 72 Tex. Cr. R. 109, 161 S. W. 118. STATEMENTS BY DECEASED PERSONS 233 Article 25. statements by deceased persons when deemed to be relevant. Statements, written or verbal, of facts in issue or relevant, or deemed to be relevant to the issue are deemed to be relevant, if the person who made the statement is dead, in the cases, and on the conditions, specified in Articles 26-31, both inclu- sive. In each of those articles the word "declara- tion" means such a statement as is herein men- tioned, and the word "declarant" means a dead person by whom such a statement was made in his lifetime, (a) Article 26*. dying declaration as to cause of death. A declaration made by the declarant as to the cause of his death, or as to any of the circum- stances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. Such a declaration is not irrelevant merely be- cause it was intended to be made as a deposition before a magistrate, but is irregular. a. [Dying declarations are an exception to the hearsay rule. See 2 Wigmore Ev„ § 1430 et seq.] * See Note at end of Article. 234 DYING DECLARATION Illustrations. (a) The question is, whether A has murdered B. B makes a statement to the effect that A murdered him. B at the time of making the statement has no hope of re- covery, though his doctor had such hopes, and B lives ten days after making the statement. The statement is deemed to be relevant. — 1 B, at the time of making the statement (which is written down), says something, which is taken down thus: "I make the above statement with the fear of death before me, and with no hope of recovery." B, on the statement being read over, corrects this to "with no hope at present of my recov- ery." B dies thirteen hours afterwards. The statement is deemed to be irrelevant. — 2 (b) The question is, whether A administered drugs to a woman with intent to procure abortion. The woman makes a statement which would have been admissible had A been on his trial for murder. The statement is deemed to be ir- relevant. — 3 (c) The question is, whether A murdered B. A dying dec- laration by C that he (C) murdered B is deemed to be irrele- vant. — 4 (d) The question is, whether A murdered B. B makes a statement before a magistrate on oath, and makes her mark to it, and the magistrate signs it, but not in the presence of A, so that her statement was not a deposi- tion within the statute then in force. B, at the time when the statement was made, was in a dying state, and had no hope of recovery. The statement is deemed to be relevant. — 5 GROUNDS OF ADMISSIBILITY. In General. Constitutional provision that in all criminal prosecutions the accused shall be confronted with the witnesses, refers to living witnesses, and not to dying declarations. — Peo- ple v. Glenn, 10 Cal. 32; Addington v. State, 8 Okl. Cr. 1 R. v. Mosley, 1 Moo. 97. [2 Wigmore Ev., § 1439.] Peo- ple v. Chin Mook Saw, 51 Cal. 597. 2 R. v. Jenkins, L,. R. 1 C. C. R. 187. 3 R. v. Hind, Bell, 253, following R. v. Hutchinson, 2 B. & C. 608, n., quoted in a note to R. v. Mead. [2 Wigmore Ev., § 1432; Wright v. State, 41 Tex. 246.] 4 Gray's Case, Ir. Cir. Rep. 76; State v. Bohan, 15 Kan. 418; Radford v. State, 33 Tex. Cr. 520, 27 S. W. 143. 5 R. v. Woodcock, 1 East, P. C. 356. In this case, Eyre, C. B., is said to have left to the jury the question, whether the deceased was not in fact under the apprehension of death. 1 Leach, 504. The case was decided in 1789. It is now settled that the question is for the judge. [2 Wigmore Ev., § 1449.] DYING DECLARATION 235 703, 130 P. 311; State v. Saunders, 14 Or. 300, 12 P. 441; Burrell v. State, 18 Tex. 713; Payne v. State, 45 Tex. Cr. R. 564, 78 S. W. 934; State v. Baldwin, 15 Wash. 15, 45 P. 650. Arkansas. Statement after hope was gone as to who killed him is admissible, where declarant had opportunity to see and know who did the shooting. — King v. State, 110 Ark. 595, 162 S. W. 1087. California. It need not be shown that deceased intended his statement to be a dying declaration. — People v. Yokum, 118 Cal. 437, 50 P. 686. Colorado. A dying declaration is only admissible where the death of the declarant is the subject of the charge of the homicide on trial, and the circumstances of the death are the subject of the declaration. — Mora v. Peo- ple, 19 Colo. 255, 35 P. 179. Kansas. The admission of testimony of deceased given at a preliminary examination does not render incompetent evidence of dying declarations.— State v. Wilson, 24 Kan. 189. A dying declaration is hearsay and is taken out of the rule excluding such evidence because of reasons of neces- sity, and because it is supposed that a realization on the part of the declarant of the certain and speedy approach of death affords as powerful incentive to tell the truth as does the sanction of an oath. — State v. Knoll, 69 Kan. 767, 77 P. 580. Oklahoma. Where deceased knew he was to die, his declaration is admissible. — Hawkins v. State, 11 Okl. Cr. 73, 142 P. 1093. Oregon. That there was other evidence of the killing does not necessarily preclude the admission of such decla- rations.— State v. Saunders, 14 Or. 300, 12 P. 441. Texas. Dying declarations can only be admissible where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the declarations. — Craven v. State, 40 Tex. Cr. R. 78, 90 S. W. 316. A dying declaration is admissible, though there are eye witnesses to the killing. — Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763. 236 DYING DECLARATION Washington. If the dying declaration adds a link in the chain of evidence, and makes it possible to identify the defendant, it is admissible. — State v. Mayo, 42 Wash. 540, 85 P. 251. Consciousness of Imminent Death. In order to render a dying declaration admissible the declarant must, at the time of making the same, be con- scious of impending death, and without hope of recovery; and this may be shown not only by what the injured per- son said, but by his condition and the nature and extent of his wounds. (Mortal wound; stated that she believed she was going to die). — Brennan v. People, 37 Colo. 256, 86 P. 79. Arkansas: Glover v. State, 116 Ark. 588, 172 S. W. 876 (spinal cord severed, and physician in a manner told her she was dying, and she appeared to realize she could not recover). California: People v. Vukojevich, 25 Cal. App. 459, 143 P. 1058 (pulmonary artery severed, and statement made to friend immediately after stabbing, and died one or two minutes later) ; People v. Level, 27 Cal. App. 257, 149 P. 772 (wound necessarily fatal; stated three times that he was dying) ; People v. Lee, 17 Cal. 76 (said he was going to die, and sent for a priest). Oregon: State v. Gray, 43 Or. 446, 74 P. 927 (informed by his physician that he could not recover, and signed a statement); State v. Thompson, 49 Or. 46, 88 P. 583 (told that his only possible chance was in operation, though he would not probably come out of the operation, and died while the anaesthetic was being administered). Texas: Cook v. State, 22 Tex. App. 511, 3 S. W. 749 (be- lief in impending death, and sent for clergyman) ; Chris- tian v. State, 72 Tex. Cr. R. 100, 161 S. W. 101 (telling person as he was being helped into an ambulance after receiving the fatal shot, to take his gun, as he never would have further use for it). Washington: State v. Mayo, 42 Wash. 540, 85 P. 251 (Information by doctor, and stated that he realized he was going to die). The declarant need not state his belief in the near ap- proach of death, when his condition of mind is evident DYING DECLARATION 237 from his conduct and surrounding circumstances. — People v. Sanchez, 24 Cal. 17; Zipperian v. People, 33 Colo. 134, 79 P. 1018; Collins v. State, 46 Neb. 37, 64 N. W. 432; State v. Fuller, 52 Or. 42, 96 P. 456; State v. Ju Nun, 53 Or. 1, 97 P. 96; Morgan v. State, 54 Tex. Cr. R. 542, 113 S. W. 934. Conscious of approaching death. — State v. Roberts, 28 Nev. 350, 82 P. 100; Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 725; Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763; State v. Power, 24 Wash. 34, 63 P. 1112. Without hope of recovery.— State v. Knoll, 69 Kan. 767, 77 P. 580; People v. Tracy, 1 Utah 743. Arkansas. Where his physician told deceased that he could not live, and he expressed his concurrence, It is sufficient foundation for the admission of his dying decla- ration.— McDaniels v. State, 113 Ark. 598, 167 S. W. 96. California. An undoubting belief existing in the mind of declarant at the time the declarations were made, that the finger of death is upon him, is indispensable to that sanction which the law enacts, and if it shall appear, In any mode, that there was a hope of recovery, however faint it may have been, still lingering in his breast, that sanction is not afforded, and the statement cannot be re- ceived. — People v. Sanchez, 24 Cal. 26. Proof of sense of death impending need not appear from the declaration itself. — People v. Yokum, 118 Cal. 437, 50 P. 686. Idaho. Declarant need not be informed by physician that he was about to die, if other circumstances show that it was impending and he believed it. — State v. Yee Wee, 7 Ida. 188, 61 P. 588. Oklahoma. Where a woman's throat was cut so that the windpipe was severed, and she lived only a few minutes after being cut, she will be presumed to have realized that death was near, so as to admit her motions in answer to questions.— Poling v. State, (Old. Cr.), 151 P. 895. Proof that deceased died within four hours after he was shot, that his wound was necessarily fatal, that he stated when he was shot that "he has killed me," and that he expressed no hope of recovery, is sufficient foundation to 238 DYING DECLARATION admit a statement as a dying declaration. — Carter v. State, (Okl.), 154 P. 337. Texas. The statement by deceased, made a short time before death, when he was rational, and knew he was going to die, and had no hope of recovery, is admissible. — Corbitt v. State, 72 Tex. Cr. R. 396, 163 S. W. 436. Hope or Expectation of Recovery. . Any hope of recovery, however slight, though death occur very soon, renders the statement inadmissible. — People v. Hodgdon, 55 Cal. 72; Rokes v. People, 2 Neb. 157; Ledbetter v. State, 23 Tex. Cr. R. 247, 5 S. W. 226. California. "Believing that I am near death, and realiz- ing that I may not recover," shows that deceased had not abandoned all hope, though she dies within an hour. — People v. Hodgdon, 55 Cal. 72. A declaration is not admissible, though deceased has a necessarily fatal wound, where he said that the doctor had not told him he had no chance, and he had not given up hope.— People v. Smith, 164 Cal. 451, 129 P. 785. Idaho. Repeated statements in a declaration, that the declarant does not know whether he will get well, render it inadmissible. — State v. Fong Loon, (Ida.), 158 P. 233. Kansas. Subsequent hope of recovery does not affect the admissibility of a dying declaration. — State v. Reed, 53 Kan. 767, 37 P. 174. Statements made by deceased that he had to die of the whipping he had' received from defendant, and that any hour, any day, he might die, do not sufficiently show a sense of impending death. — State v. Knoll, 69 Kan. 767, 77 P. 580. Information by Physician. Idaho. When death was imminent and deceased believed he was going to die, his declaration is admissible, though he had not been informed by a physician that he was about to die.— State v. Yee Wee, 7 Ida. 188, 61 P. 588. TIME INTERVENING BEFORE DEATH. A declaration made when deceased thought he was go- ing to die is admissible though death did not occur until some time thereafter: DYING DECLARATION 239 California: People v. Vernon, 35 Cal. 49 (nine or ten hours thereafter) ; People v. Cord, 157 Cal. 562, 108 P. 511 (death not occurring for two weeks, within which time deceased had recovered sufficiently to go out riding and walk up stairs with assistance, and physicians thought he would recover). Nebraska: Fitzgerald v. State, 11 Neb. 577, 10 N. W. 495 (two weeks after, and the day before his death he expressed hope of recovery) ; State v. Hennessy, 29 Nev. 320, 90 P. 221 (two days). Texas: Fulcher v. State, 28 Tex. App. 465, 13 S. W. 750 (a month and a half, no change in condition of mind being apparent); Francis v. State, (Tex. Cr. R.), 170 S. W. 779 (two days thereafter, state of mind being presumed to continue). Washington: State v. Webster, 21 Wash. 63, 57 P. 361 (two days); State v. Lewis, 8 Wash. 532, 141 P. 1025. RATIFICATION OF PRIOR DECLARATION. Reiteration of the statement when conscious of death renders it admissible, though when it was first made declarant thought he would pull through.— People v. Mammilato, 168 Cal. 207, 142 P. 58; Bryant v. State, 35 Tex. Cr. R. 394. 33 S. W. 978. SUBJECT MATTER AND RELEVANCY. California. Where there was evidence connecting defend- ant with a conspiracy to murder, the dying declarations of the victim as to who did the shooting are admissible against defendant separately tried, though another was stated herein as having done the act. — People v. Moran, 144 Cal. 48, 77 P. 777. Kansas. Dying declarations are restricted to the act of killing and the circumstances immediately attending the act, and statements relating to former and distinct trans- actions not immediately connected with the killing, can not be received. (That he and defendant were friendly and had no difficulty in the afternoon, etc.) — State v. O'Shea. 60 Kan. 772, 57 P. 970. Nevada. Identification of the men who shot him and pushed him off the cars, is admissible as a dying declara- tion.— State v. Roberts, 28 Nev. 350, 82 P. 100. 240 DYING DECLARATION Texas. Telling his wife about his financial affairs, and that he had made ample provision for her, is no part of a dying declaration, though it be admissible to show con- sciousness of impending death. — Hays v. State, 73 Tex. Cr. R. 58, 164 S. W. 841. Utah. "Dr. C. performed an operation on me (admissible), for the purpose of performing an abortion" (inadmissible). —State v. Carrington, 15 Utah 480, 50 P. 526. Washington. A statement as to prior threats of defend- ant is no part of a dying declaration. — State v. Moody, 18 Wash. 165, 51 P. 356. Wyoming. Declarations of deceased that he and defend- ant had had frequent quarrels, and that defendant had in effect challenged him to fight with pistols a few days before, are not admissible as part of a dying declaration. —Foley v. State, 11 Wyo. 464, 72 P. 627. Conclusions and Opinions. Declarations consisting of conclusions, opinions and be- liefs, which would not be received if declarant were a wit- ness, are not admissible: California: People v. Cyty, 11 Cal. App. 702, 106 P. 257 (that he had expected no trouble with defendant). Kansas: State v. O'Shea, 60 Kan. 772, 57 P. 970 (that defendant knew declarant carried $300, etc.). Oklahoma: Mulkey v. State, 5 Okl. Cr. 75, 113 P. 532 ("He foully murdered me without warning"). Texas: Williams v.. State, 40 Tex. Cr. R. 497, 51 S. W. 220 ("When they came in, I treated them perfectly gen- tlemanly. They added insult after insult") ; Bateson v. State, 46 Tex. Cr. R. 34, 80 S. W. 88 ("They murdered me without cause"); Sorrell v. State, (Tex. Cr. R.), 169 S. W. 299 ("I was shot down like John Ross"). Arkansas. A mere expression of opinion by the dying man is not admissible as a dying declaration, and it is im- material whether the fact that the declaration is mere opinion appears from the statement itself or from other undisputed evidence showing that it was impossible for the declarant to have known the facts stated. (Physical impossibility for declarant to have seen who shot him.) — Jones v. State, 52 Ark. 347, 12 S. W. 704. DYING DECLARATION 241 California. "V. has killed me," uttered by deceased im- mediately after being stabbed through the pulmonary artery, death occurring two minutes afterwards, is not an expression of opinion. — People v. Vukojevich, 25 Cal. App. 459, 143 P. 1058. Colorado. Declaration of deceased that he had been "murdered" is the expression of a mere opinion, and is in- admissible to establish the degree of the homicide. — Jamison v. State, 52 Colo. 11, 119 P. 474. Montana. That the shooting was without provocation, that there was not any trouble between deceased and de- fendant and that deceased was not armed at the time of the shooting, are not matters of opinion. — State v. Crean, 43 Mont. 47, 114 P. 603. Oregon. "He shot me down like a dog," admissible. — State v. Saunders, 14 Or. 304, 12 P. 441. Texas. Statement of wife that her husband poisoned her by administering strychnine through a syringe; admissible. —Rice v. State, 49 Tex. Cr. R. 569, 94 S. W. 1024. MANNER AND FORM OF DECLARATION. Both written and oral dying declarations are admisible. —Dick v. State, 10 Okl. Cr. 497, 139 P. 322; State v. Car- rington, 15 Utah 480, 50 P. 526. The fact that a written declaration was admitted in evidence does not preclude the admission of oral declara- tions made at other times. — Zipperian v. People, 33 Colo. 134, 79 P. 1018; Morris v. State, 6 Okl. Cr. 29, 115 P. 1030. Formal parts prepared out of the presence of declarant, but the whole declaration read over to him and signed by him, admissible.— State v. Wilmbusse, 8 Ida. 608, 70 P. 849; Updike v. State, 9 Okl. Cr. 124, 130 P. 1107; State v. Baldwin, 15 Wash. 15, 45 P. 650. Colorado. The fact that a justice of the peace who re- duced a dying declaration to writing filed it as a criminal complaint does not preclude its admissibility. — Zipperian v. People, 33 Colo. 134, 79 P. 1018. Kansas. Although a memorandum of a dying declaration was made, witnesses may testify as to it, without produc- ing the memorandum. — State v. Wilson, 23 Kan. 189. Oklahoma. When several complete statements are made at different times of material facts concerning the cause 242 DYING DECLARATION and circumstances of the homicide, one of which was re- duced to writing, the prosecution is not restricted to the writing, but may offer the oral declarations. — Dick v. State, 10 Okl. Cr. 497, 139 P. 322. Texas. Although a dying declaration was committed to writing, oral proof was admissible, where the writing was lost and could not be found after careful search. — Rodri- guez v. State, (Tex. Cr. R.), 186 S. W. 335. Utah. When a declaration has been reduced to writing and signed by decedent, parol evidence is inadmissible to prove such declaration unless the loss or absence of the writing is accounted for. — People v. Tracy, 1 Utah 343. The fact that a writing to which the dying declaration had been committed was not signed does not render it inadmissible.— State v. Carrington, 15 Utah 480, 50 P. 526. QUESTIONS, AND MANNER OF COMMUNICATING. California. Leading questions to declarant are permis- sible, and he may even be urged to make statement, though his credibility be impeached. — People v. Sanchez, 24 Cal. 17. Kansas. Written by another and partly brought out by questions, the answers to which were communicated by signs, and read and signed by declarant, admissible. — State v. Morrison, 64 Kan. 669, 68 P. 48. Nevada. Narrative in form and questions not included in the writing.— State v. Williams, 28 Nev. 395, 82 P. 353. Texas. Questions allowable, when not suggesting answer. —Phillips v. State, 50 Tex. Cr. R. 481, 98 S. W. 868. A dying declaration is admissible, though declarant's name was signed by another and was made in response to questions. — Burgess v. State, (Tex. Cr. R.), 181 S. W. 465. Replies by nods as to who hit her admissible, the physi- cian having told her that she was about to die. — Thomp- son v. State, (Tex. Cr. R.), 187 S. W. 204. PROSECUTIONS IN WHICH DECLARATIONS ARE ADMISSIBLE. Dying declarations are not admissible when the crime charged is the homicide of any other person than the declarant, even though such other and declarant were killed in the same attack (and were husband and wife). — DYING DECLARATION 243 State v. Bohan, 15 Kan. 407; State v. Fitzhugh, 2 Or. 227; Krebs v. State, 3 Tex. App. 34S; Radford v. State, 33 Tex. Cr. R. 520, 27 S. W. 143. PERSONS AS TO WHOM DECLARATIONS ARE ADMISSIBLE. Dying declarations are admissible on behalf of the ac- cused as well as for the prosecution. — People v. Southern, 120 Cal. 645, 53 P. 214; State v. Saunders, 14 Or. 304, 12 P. 441. COMPETENCY OF DECLARANT. Dying declarations cannot be rejected on account of the religious belief of the declarant. — People v. Sanford, 4"3 Cal. 29, 34; People v. Chin Mook Sow, 51 Cal. 597; State v. Ah Lee, 8 Or. 214. California. It is not to be .presumed that because de- clarant was an adherent of a heathenish religion a dying declaration by him would not be under the same degree of solemnity as one given by a person charged with re- ligious convictions of a more rational and civilized order. —People v. Lim Foon, 29 Cal. App. 270, 155 P. 477. Idaho. Before a dying declaration is admitted in evidence the competency of the declarant must be shown. — State v. Wilmbusse, 8 Ida. 608, 70 P. 849. That the declarant was incompetent two days after- wards is no proof that he was not competent when the declaration was made. — State v. Wilmbusse, 8 Ida. 608, 70 P. 849. Washington. The fact that deceased had been convicted for cattle stealing does not render his dying declaration inadmissible. — State v. Baldwin. 15 Wash. 15, 45 P. 650. PRELIMINARY INQUIRY. Whether a sufficient foundation has been laid to admit a statement as a dying declaration is a question for the court.— People v. Cord, 157 Cal. 562, 108 P. 511; Harris v. People, 55 Colo. 407, 135 P. 785; Johnson v. State, 88 Neb. 328, 129 X \V. 281: Bilton v. Territory, 1 Old. Cr. 566, 99 P. 163; State v. Fuller, 52 Or. 42, 96 P. (56. Arkansas. The question whether a declaration was made in extremis may be submitted to the jury. — Tolliver v. State, 113 Ark. 142. 167 S. W. 703. 244 DYING DECLARATION Colorado. Question for court, as to consciousness of ap- proaching death. — Brennan v. People, 37 Colo. 256, 86 P. 79. Montana. Whether the jury shall be excused during the preliminary inquiry is a matter within the sound discre- tion of the court.— State v. Crean, 43 Mont. 47, 114 P. 603. Nevada. Whether a dying declaration is admissible is a question for the court, with the jury withdrawn. — State v. Scott, 37 Nev. 412, 142 P. 1053. CONTRADICTION OR IMPEACHMENT. Dying declarations may be impeached by showing that the deceased made other statements inconsistent there- with, in relation to the cause and circumstances of the homicide. — People v. Lawrence, 21 Cal. 368; Salas v. People, 51 Colo. 461, 118 P. 992; State v. Shaffer, 23 Or. 555, 32 P. 545; State v. Fuller, 52 Or. 42, 96 P. 546; Mc- Corquodale v. State, (Tex. Cr. R.), 98 S. W. 879; State v. Mayo, 42 Wash. 540, 85 P. 251. Oklahoma. A dying declaration may be contradicted by proof of contrary statements, or otherwise. — Morris v. State, 6 Okl. Cr. 29, 115 P. 1030. Where other and different declarations are made con- temporaneously or subsequently to the written statement, the defense may show that such statements are incon- sistent with or contrary to the written one. — Addington v. State, 8 Okl. Cr. 703, 130 P. 711. Should different declarations of deceased be incon- sistent or contradictory, the defense may show that fact. —Dick v. State, 10 Okl. Cr. 497, 139 P. 322. Oregon. No foundation need be laid for the impeachment of a dying declaration. — State v. Fuller, 52 Or. 42, 96 P. 456. Texas. Where defendant introduced testimony tending to show that deceased refused to make a statement or dying declaration, the sister of deceased may testify as to a state- ment he made to her. — Mansell v. State, (Tex. Cr. R.), 182 S. W. 1137. PROOF AND WEIGHT OF DECLARATION. The weight and credit to be given to a dying declaration is for the jury.— State v. Byrd, 41 Mont. 585, 111 P. 487; DECLARATIONS, BUSINESS, ETC. 245 Johnson v. State, 88 Neb. 328, 129 N. W. 281; Bilton v. Territory, 1 Okl. Cr. 566, 99 P. 163; State v. Fuller, 52 Or. 42, 96 P. 456. A dying declaration is not entitled to the same weight as testimony given under oath. — State v. Scott, 34 Nev. 412, 142 P. 1053; State v. Valentia, 19 N. M. 113, 140 P. 1119. Texas. It is sufficient if the substance of the declaration be given. — Roberts v. State, 5 Tex. App. 141. NOTE XVII. (To Article 26.) As to dying declarations, see [2 Wigmore Ev., §§ 1431-1452] 1 Ph. Ev. 239-252; T. E. ss. 644-652; Best, s. 505; Starkie, 32 & 38; 3 Russ. Cri. 250-272 (perhaps the fullest collection of the cases on the subject); Roscoe, Crim. Ev. 31-32. R. v. Baker, 2 Mo. & Ro. 53, is a curious case on this subject. A and B were both poisoned by eating the same cake. C was tried for poisoning A. B's dying declaration that she made the cake in C's presence, and put nothing bad in it, was ad- mitted as against C, on the ground that the whole formed one transaction. Article 27.* declarations made ix the course of business or profes- sional duty. A declaration is deemed to be relevant when it was made by the declarant in the ordinary course of business, or in the discharge of professional duty, at or near the time when the matter stated occurred, (a) and of his own knowledge. Such declarations are deemed to be irrelevant except so far as they relate to the matter which the declarant stated in the ordinary course of his business or duty, (b) * See note at end of Article. a Doe v. Turford, 3 B. & Ad. 8'JO. [2 Wigmore Ev., § 1550.] c [2 Wigmore Ev., § 1537 et seq.] 246 DECLARATIONS, BUSINESS, ETC. Illustrations. (a) The question is, whether A delivered certain beer to B. The fact that a deceased drayman of A's, on the evening of the delivery, made an entry to that effect in a book kept for the purpose, in the ordinary course of business, is deemed to be relevant. — 1 (b) The question is, what were the contents of a letter not produced after notice. A copy entered immediately after the letter was written, in a book kept for that purpose, by a deceased clerk, is deemed to be relevant.— 2 (c) The question is, whether A was arrested at Paddlng- ton, or in South Molton street. A certificate annexed to the writ by a deceased sheriff's officer, and returned by him to the sheriff, is deemed to be relevant so far as it relates to the fact of the arrest; but irrelevant so far as it relates to the place where the arrest took place. — 3 (d) The course of business was for A, a workman In a coal pit, to tell B, the foreman, what coals were sold, and for B (who could not write) to get C to make entries in a book accordingly. The entries (A and B being dead) are deemed to be irrele- vant, because B, for whom they were made, did not know them to be true. — 4 (e) The question is, what is A's age. A statement by the incumbent in a register of baptisms that he was baptized on a given day is deemed to be relevant. A statement in the same register that he was born on a given day is deemed to be irrelevant, because it was not the incumbent's duty to make it. — 5 ENTRIES IN COURSE OF BUSINESS OR PROFES- SIONAL DUTY. Admissibility In General. Entries in books made in the ordinary course of busi- ness at or near the time of the transaction to which they relate, upon proof of the handwriting of the person who made such entries, in case of his death or absence from the jurisdiction, are admissible. — Pacific Mut. Life Ins. Co. v. O'Neil, 36 Okl. 792, 130 P. 270; Raski v. Wise, 56 1 Price v. Torrington, 1 S. L. C. 328, 7th ed. 2 Pritt v. Fairclough, 3 Camp. 305. 3 Chambers v. Bernasconi, 1 C. M. & R. 347; see, too, Smith v. Blakey, L. R. 2 Q. B. 326. * 4 Brain v. Preece, 11 M. & W. 773. 5 R. v. Clapham, 4 C. & P. 29. DECLARATIONS, BUSINESS, ETC. 247 Or. 72, 107 P. 984; Pioneer Sand & Gravel Co. v. Interna- tional Contract Co., 70 Wash. 123, 126 P. 84. The admissibility of books of account is to be deter- mined from their appearance and character, the employ- ment and education of the one who kept them, the man- ner in which other and similar accounts were entered in the book, and the circumstances of the case. — Holden v. Spier, 65 Kan. 412, 70 P. 348; Lewis v. England, 14 Wyo. 128, 82 P. 869. Arkansas. Record of the number of the various kinds of logs removed by defendant from certain land was inad- missible when it was not shown by whom it was made, that it was made at or near the time the timber was cut and in the regular course of business, and that the party who made it cannot be produced. — Chicago Mill & Lumber Co. v. Osceola Land Co., 94 Ark. 183, 126 S. W. 380. California. A blacksmith's books are admissible, accom- panied by his proof as to the manner of keeping, and reputation of keeping correct accounts by persons who have had dealings with him. — Landis v. Turner, 14 Cal. 573. Plaintiff's books containing credits are admissible to fix amounts to be deducted from amount of salary claimed by him, but not to determine the amount of such salary. — Bushnell v. Simpson, 119 Cal. 658, 51 P. 1080. Books containing entries showing that goods were shipped to one party and charged to another are inad- missible, where the manager directing the entry was not called. — Butler v. Estrella Raisin Vineyard Co., 124 Cal. 239, 56 P. 1040. An entry in plaintiff's account book of a transaction not connected with his business does not affect its admis- sibility as to those matters properly entered. (Entry of a loan.)— Yick Wo v. Underhill, 5 Cal. App. 519, 90 P. 967. Shop books were admitted by the courts as exceptions to the general rule excluding hearsay evidence in order to prevent a total failure of justice. — San Francisco Team- ing Co. v. Gray, 11 Cal. App. 314, 104 P. 999. Book of account properly authenticated by preliminary proof are admissible in evidence, but the proper founda- tion must be laid. (Requisites of such preliminary proof stated.)— Chan Kin Sing v. Gordon, 171 Cal. 28, 151 P. 657. 248 DECLARATIONS, BUSINESS, ETC. Colorado. It seems that statutes providing for prelim- inary testimony for the introduction of books of account do not change the common law rules not inconsistent therewith. — Davie v. Lloyd, 38 Colo. 250, 88 P. 446. The account book of an attorney charging a person named with the attorney's fee for defending a third per- son under a criminal charge, is not admissible to estab- lish the amount of the fee or the value of the services, where there is no independent competent evidence to show the attorney's employment by such third person, and that fact is in issue. — Young v. United States Bank & Trust Co., 27 Colo. App. 331, 148 P. 919. Kansas. Account books proved to be books of original entry are original evidence. — Anthony v. Stinson, 4 Kan. 211. Nebraska. There must appear by the book itself to be a continuous dealing with persons generally, or several items of charges at different times to the adverse party. —Anderson v. Beeman, 52 Neb. 387, 72 N. W. 361; Atkins v. Seeley, 54 Neb. 688, 74 N. W. 1100. The statute must be complied with in order to render books of account admissible. — Atkins v. Seeley, 54 Neb. 688, 74 N. W. 1100. New Mexico. Under a statute admitting books of account where the party kept no clerk, or where the clerk was dead or inaccessible, the fact that a physician's wife from time to time made entries in such books from his dicta- tion did not constitute her a clerk so as to render the books inadmissible. — Radcliffe v. Chavez, 15 N. M. 258, 110 P. 699. Oklahoma. Contractor's books of original entries are ad- missible to prove work done and material furnished. — First Nat. Bldg. Co. v. Vandenberg, 29 Okl. 583, 119 P. 224. Books of account consisting of entries made at or near the time of the transaction, from memoranda not com- piled or preserved in book form, nor otherwise in respect to convenience similarly available, such as reports of salesmen, are admissible. — Navarre v. Honea, 41 Okl. 480, 139 P. 310. Oregon. Books of a merchant are secondary evidence of what is written therein, and are admissible to prove an DECLARATIONS, BUSINESS, ETC. 249 account only when demanded by necessity, such as the death or absence of the clerk who kept the account. — Raski v. Wise, 56 Or. 72, 107 P. 984. South Dakota. Books of an executor showing no payment of mortgage are admissible in a suit by his successor to foreclose a mortgage.— Mead v. Mead, 28 S. D. 131, 132 N. W. 701. Texas. Books containing weights of cattle received and sold by a commission house, the items being transferred in the regular course of business, from slips of paper upon which the actual weigher had indorsed such weights, were admissible, the weigher not being available. — Atchison, T. & S. F. Ry. Co. v. Williams, 38 Tex. Civ. App. 405, 86 S. W. 38. To authorize the admission of book accounts in evi- dence, it must be proved: (1) That the book or books contain original entries of transactions pertinent to the business in question. (2) It must appear that the entries were made in the regular course of business at or near to the time the transactions were had. (3) That the entries must be such as to indicate what the charge is for; that is, what the transaction was. (4) That the entries were made by one who was authorized to do so, and that he did the acts so recorded himself, or that he made the record upon information derived from one who was authorized to do so. (5) That the transactions were regularly entered, and that the books were regularly kept. —Stark v. Burkitt, 103 Tex. 437, 129 S. W. 343. Washington. A man's book is not testimony in his own behalf touching the receipts of money by him, though it be a book of original entries containing the accounts and the credits of moneys paid thereon. — Schlottfeldt v. Bull, 18 Wash. 64, 50 P. 590. Personal Knowledge of Maker. Washington. Books containing amount of lumber scaled, transferred by plaintiff from items put upon boards and pieces of paper by his employees and handed to him, in- admissible. — Tingley v. Fairhaven Land Co., 9 Wash. 34, 36 P. 1098. Books of account of an electric company purporting to show the number of nightly performances at a theater 250 DECLARATIONS, BUSINESS, ETC. during each month, the entries being at the end of each month compiled from newspaper statements and from the reports of the company's collectors, are inadmissible to show the amount of light furnished. — Union Elec. Co. v. Seattle Theatre Co., 18 Wash. 213, 51 P. 367. Subject Matter. Books containing but one entry, and that simply a memorandum of the transaction, are inadmissible. — Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Metzger v. Burnett, 5 Kan. App. 374, 48 P. 599; Ryan v. Dunphy, 4 Mont. 356, 5 P. 324. The entries must relate to matters in the regular course of business, and cannot be used to prove items that are not properly the subject of book accounts: Texas: Tobler v. Austin, (Tex. Civ. App.), 71 S. W. 407 (memorandum as to when a certain contract was exe- cuted); Bouldin v. Atlantic Rice Mills Co., (Tex. Civ. App.), 86 S. W. 795 (quality, condition and grade of de- fendant's goods, sold by plaintiffs on defendant's account) ; Luttrell v. Parry, (Tex. Civ. App.), 129 S. W. 865 (terms of special contract to make plans and specifications) ; Callen v. Collins, (Tex. Civ. App.), 135 S. W. 651 (mem- orandum of amount of timber scaled, entered in scale book). California. An entry by an attorney stating an agreed fee to be one-half of amount recovered is inadmissible as being merely a memorandum of a special contract. — Batcheller v. Whittier, 12 Cal. App. 262, 107 P. 141. Colorado. Inventory of stock of goods called off by ex- pert and written down by another, both witnesses testify- ing, is admissible. — Burchinell v. Koon, 8 Colo. App. 463, 46 P. 932. Nebraska. Hotel registers, without proof that the names thereon are true entries of the guests, that they were paying guests, or of the duration of their visits, are in- admissible to prove the extent of business of*such hotel. — Wittenburg v. Mollyneaux, 55 Neb. 429, 75 N. W. 835. Oklahoma. It is not error to exclude entries in books of account where such entries do not relate to the trans- action which is the subject of inquiry. — Drumm-Flato Com- mission Co. v. Edmisson, 17 Okl. 344, 87 P. 311. DECLARATIONS. BUSINESS, ETC. 251 Texas. Relay copies of a message taken from the records at different points on its passage inadmissible. — Buchanan v. Western Union Tel. Co., (Tex. Civ. App.), 100 S. W. 974. Utah. Field books of a mining company, showing places where work was done, etc., kept solely for the company's own purposes and in the administration of its internal affairs, are inadmissible in a suit by a stranger for tres- pass in taking ore. — Eureka Hill Min. Co. v. Bullion Beck & Champion Co., 32 Utah 236, 90 P. 157. Wyoming. Entries by deceased upon a calendar at the end of certain months, as "S. paid for a month," and "S. paid to this day in full," not specifying any amounts, and not shown to have been kept in the usual course of busi- ness, are inadmissible. — Hay v. Peterson, 6 Wyo. 419, 45 P. 1073. Cash Entries. California. Entry of cash loaned by a restaurant keeper, a transaction not connected with his business, is inadmis- sible.— Yick Wo v. Underhill, 5 Cal. App. 519, 90 P. 967. Oregon. Charges against defendant for cash advanced to third persons, not shown to have been money loaned to defendant or furnished to others on his request, are in- admissible. — Harmon v. Decker, 41 Or. 587, 68 P. 11. Washington. A timekeeper and bookkeeper suing for cash advanced and for services rendered may introduce in evidence books of defendant showing money advanced by him, though the entries were made by himself, where the books were made in the regular course of business and the items of advances were interspersed with other items pertaining to the business. — Robertson v. O'Neill. 67 Wash. 121, 120 P. 884. Wyoming. Debtor's books of accounts admissible to show payment to creditors.— Hay v. Peterson, 6 Wyo. 419, 45 P. 1073. Where cash entries are made as a part of the regular course of business transacted, they should be admitted. — Lewis v. England, 14 Wyo. 128, 82 P. 869. Time Books and Memoranda. "Where an entry is made by one person in the regular course of business, recording an oral or written report, 252 DECLARATIONS, BUSINESS, ETC. made to him by one or more persons in the regular course of business, of a transaction lying in the personal knowl- edge of the latter, there is no objection to receiving that entry under the present exception, providing the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case out- weigh the probable utility of doing so." — 2 Wigmore Ev., § 1530. Books made up from reports of salesmen in the form of written memoranda, not compiled, or preserved in book form nor otherwise available are admissible. — Navarre v. Honea, 41 Okl. 480, 139 P. 310; Weinberg v. Garren, (Tex. Civ. App.), 155 S. W. 1013; Cascade Lumber Co. v. Aetna Indemnity Co., 56 Wash. 503, 106 P. 158. California. Note of time of reception of message by tele- graph company is evidence to prove time of reception. — Union Constr. Co. v. Western Union Tel. Co., 163 Cal. 298, 125 P. 242. Colorado. Entries in a vest-pocket memorandum book and diary in the handwriting of a deceased found among his papers, no other record of such account being found, nor any other memorandum showing business transac- tions, are admissible on behalf of his estate, under the rules of the common law, though not admissible under the provisions of the statute. — Davie v. Lloyd, 38 Colo. 250, 88 P. 446. North Dakota. Stubs in a pad, detached ends of which were given to defendant by employees of plaintiff, were admissible to show overpayment of wheat delivered by defendant. — Farmers' Co-Op. Elevator Co. v. Medhus, 36 N. D. 251, 152 N. W. 352. Texas. Telephone call tickets, containing original entries by the operator, shown to have been properly kept, and properly identified, are admirable, unaccompanied by the testimony of the operator who made the entries. — Southwestern Tel. & Tel. Co. v. Pearson, (Tex. Civ. App.), 137 S. W. 733. Utah. Mere order slips or shop books, on which simply the orders for goods are entered as the orders are re- ceived, are not admissible to prove an account. — Ogden DECLARATIONS, BUSINESS, ETC. 253 Packing & Prov. Co. v. Tooele Meat & Storage Co., 41 Utah 92, 124 P. 333. While order slips are not admissible as books of orig- inal entry, yet when goods are put up and checked off from such slips, they are admissible. — Ogden Packing & Prov. Co. v. Tooele Meat & Storage Co., 41 Utah 92, 124 P. 333. Wyoming. Slips of paper on which were written daily charges by employees under the direction of the propri- etor, who was illiterate, are admissible. — Lewis v. Eng- land, 14 Wyo. 128, 82 P. 869. Day Books. The fact that charges were made in the first instance upon slips of paper, and the same day transferred to a daybook, does not take away from such daybook its character as a book of original entry. — Plummer v. Struby- Estabrooke Merc. Co., 23 Colo. 190, 47 P. 294; Rice v. Hodge, 26 Kan. 164; Ladd v. Sears, 9 Or. 244. The same, as to entries made on a slate. — Landis v. Turner, 14 Cal. 573. Arkansas. Journal and ledger books to which were tran- scribed each day items from books kept' by salesmen who are dead, may, when such original books have been de- stroyed by fire, be admitted in evidence, if supported by testimony of bookkeepers who transcribed such items. — Stanley v. Wilkerson, 63 Ark. 556, 39 S. W. 1043. California. The fact that the charges were made on a slate and then transferred to the book offered does not destroy the character of the book as being of original entry. — Landis v. Turner, 14 Cal. 573. Colorado. A day book, to which charges were copied daily from slips of paper, is a book of original entry. — Plummer v. Struby-Estabrooke Merc. Co., 23 Colo. 190, 47 P. 294. New Mexico. A cash book showing gross receipts is ad- missible, though including amounts paid on bills owed. — Di Palma v. Weinman, 16 N. M. 302, 121 P. 38. Ledgers. A ledger to which items of account have been trans- ferred is not admissible as a book of original entry: 254 DECLARATIONS, BUSINESS, ETC. California: San Francisco Teaming Co. v. Gray, 11 Cal. App. 314, 104 P. 999. Colorado: Jones v. Henshall, 3 Colo. App. 448, 34 P. 254. Oregon: Durkheimer v. Heilner, 24 Or. 270, 34 P. 475. Texas: Pohl v. Bradford & Rowe Bros., (Tex. Civ. App.), 25 S. W. 984 (where original books of entry are accessible). Nebraska. A "loose leaf" ledger, containing many orig- inal successive charges against defendant and others, is admissible. — Armstrong Clothing Co. v. Boggs, 90 Neb. 499, 133 N. W. 1122. Bank Books. California. Pass books in the handwriting of the bank cashier, and issued in the usual course of business are admissible in a suit by the administratrix of a depositor to recover alleged deposits of deceased. — Nicholson v. Randall Banking Co., 130 Cal. 533, 62 P. 930. Colorado. A daily balance book of a bank is admissible to show amounts to credit of depositors, though these were made up of entries from daily deposit slips. — Zang v. Wyant, 25 Colo. 551, 56 P. 565. Kansas. A book containing a list of depositors is ad- missible to show that a person has no account. — State v. McCormick, 57 Kan. 440, 46 P. 777. Oklahoma. A bank pass book showing deposits and the original checks drawn on the deposit are admissible to show the account. — Security State Bank v. Pussell, 36 Old. 527, 129 P. 746. South Dakota. Entries in bank books are admissible to show who purchased drafts. — Schmidt v. Scanlan, 32 S. D. 608, 144 N. W. 128. Washington. Bank books are admissible to show the state of an account. — Chase & Baker Co. v. Olmsted, (Wash.), 160 P. 952. Sundry Books and Records. California. A nurse's chart or memorandum of the pulse and symptoms of testatrix during her last illness and at the time of the execution of her will, not evidence of the facts stated therein.— Flint's Estate, In re, 100 Cal. 399, 34 P. 803; Everts' Estate, In re, 163 Cal. 449, 125 P. 1058. Nebraska. Books and records of a lodge of a fraternal DECLARATIONS, BUSINESS, ETC. 255 beneficial association are receivable in evidence against the members of the lodge and their privies. — Union Pacific Lodge No. 17, A. O. U. W. v. Bankers' Surety Co., 79 Neb. 801, 113 N. W. 263. South Dakota. Books kept by a postmaster in T. to record "Advices Received and Money Orders Drawn," are admissible to show that a money order issued by a post- office in H. was cashed at T— State v. Hall, 16 S. D. 6, 91 N. W. 325. Texas. The minutes of a Masonic lodge, more than thirty years old, are admissible to show that a certain person was present at the lodge as a visitor from another lodge. —Howard v. Russell, 75 Tex. 171, 12 S. W. 525. Completeness of Account. California. Summaries of the contents of books covering transactions of years, and millions of dollars in value, made by an expert, are admissible to show shortages and defalcations. — San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 P. 410. Charges must be specific, and lumped accounts, such as "Bal. $357.46," are inadmissible. — Chandler v. Robinett, 21 Cal. App. 333, 131 P. 981. Oregon. Entries from pass book, which were apparently summaries from ledger, excluded. — Harman v. Decker, 41 Or. 587, 68 P. 11. Time of Making Entries. Arkansas. A showing must be made that the entries made in the book offered were contemporaneous with the facts recorded. — St. Louis, I. M. & S. Ry. Co. v. Murphy, 60 Ark. 333, 30 S. W. 419; Atkinson v. Burt, 65 Ark. 316, 46 S. W. 986, 53 S. W. 404. California. Three days' delay in transferring from slate to permanent book is not unreasonable. — Landis v. Tur- ner, 14 Cal. 573. A so-called "work book." whose items were transferred from memoranda furnished to plaintiff's bookkeeper by oral statements of teamsters as to work done during the day, is inadmissible. — San Francisco Teaming Co. v. Gray. 11 Cal. App. 814, 104 P. 999. Colorado. Entries made a week or two after the trans- action exclude the book from evidence. — Lovelock v. Gregg, 14 Colo. 53, 23 P. 86. 256 DECLARATIONS, BUSNIESS, ETC. Oklahoma. Entries made from scale tickets of cattle, delivered to plaintiff's bookkeeper by defendant's em- ployee at the stockyards in Kansas City some days after the delivery of the cattle to the agejit of defendant in Oklahoma, are inadmissible. — Drumm-Plato Commission Co. v. Edmisson, 17 Okl. 344, 87 P. 311. Washington. An account book is inadmissible where the items were apparently all made at the same time. — Golds- worthy v. Oliver, (Wash.), 160 P. 4. Alterations and Mutilations. California. Alterations and suspicious circumstances ap- pearing on face of books must be explained by disinter- ested testimony. — Caldwell v. McDermit, 17 Cal. 465. Colorado. Where entries in a book were made a week or more after the transactions, and the book was muti- lated by cutting out the leaves on which the account was kept, they are inadmissible. — Lovelock v. Gregg, 10 Colo. 53, 14 P. 52. North Dakota. It is no objection to the introduction of a stub book that it had been mutilated, where all of the original entries were intact and only blanks and spoiled sheets were detached. — Farmers' Co-Op. Elevator Co. v. Medhus, 36 N. D. 251, 152 N. W. 352. Authentication. By statute it must appear by the oath of the person making them that the entries are correct, and were made at or near the time of the transaction, and proof of such person's handwriting, in case of his death or absence from the county. — Missouri, K. & T. Ry. Co. v. Walker, 27 Okl. 849, 113 P. 907; Muscogee Electric Traction Co. v. Mclntire, 37 Okl. 684, 133 P. 213; Jackson v. Moore, 39 Okl. 234, 134 P. 1114; St. Louis & S. F. R. Co. v. Zick- afoose, 39 Okl. 302, 135 P. 406. A book account cannot be admitted in evidence until the proper foundation is laid.— Watrous v. Cunningham, 71 Cal. 30, 11 P. 811; Norberg v. Plummer, 58 Neb. 410, 78 N. W. 708. The rule excluding the testimony of parties as against executor, etc., has reference to matters at issue, and not to auxiliary matters such as preliminary foundation for the admission of parties' books. — Bagley v. Eaton, 10 DECLARATIONS, BUSINESS, ETC. 257 Cal. 126; Landis v. Turner, 14 Cal. 573; Roche v. Ware, 71 Cal. 375, 12 P. 284; Haines v. Christie, 28 Colo. 502, 66 P. 883. Arkansas. Before allowing entries in a book to be read, there must be a showing that the book was correctly kept and that the entries were contemporaneous with the facts recorded.— Atkinson v. Burt, 65 Ark. 316, 53 S. W. 404. A gin book made up from slips of paper containing notations each day by the man who ran the gin, showing the number of bales ginned that day, is inadmissible as a book of original entries, in the absence of a showing that the deposition of such gin man could not be obtained, nor that of one of the parties who made entries in the book, though another person who made some of the entries was a witness. — Hall Bros. Co. v. Johnson, 111 Ark. 593, 164 S. W. 278. California. The assignee of a book account is a compe- tent witness to prove loss of book of original entry, as preliminary to the introduction of secondary evidence. — Caulfield v. Sanders, 17 Cal. 569. Proof of loss of book of original entry was not sufficient to let in secondary evidence of its contents, because the proof did not show who had possession of the book or any bona fide search for it. — Caulfield v. Sanders, 17 Cal. 569. A wife is not competent to give the preliminary proof necessary to admit account books of her husband, where he is within the jurisdiction. — Roche v. Ware, 71 Cal. 375, 12 P. 284. Plaintiff suing an estate for professional services ren- dered deceased may not, under the statute relating to a party's testifying on a claim against deceased, testify that the items contained in his account book offered in evidence were entered at or about the time the trans- actions took place, and that these items were true and correct, though he may testify that he kept such books at the time stated, and that the book introduced in evi- dence was the one kept by him; but those who have dealt and settled with him from his books of account may testify that he keeps fair and honest books, or the correctness of the entries may be shown by the testi- 258 DECLARATIONS, BUSINESS, ETC. mony of any one who is able of his own knowledge to testify as to the fact. — Colburn v. Parrett, 27 Cal. App. 541. 150 P. 786. In order to lay the foundation for the admission of account books, it must be shown that the books in ques- tion are books of account kept in the regular course of business; that the business is of a character in which it is proper or customary to keep such books; that the en- tries were either original entries or the first permanent entries of the transaction; that they were made at the time, or within reasonable proximity to the time, of the respective transactions; and that the persons making them bad personal knowledge of the transactions, or obtained such knowledge from a report regularly made to him by some other person employed in the business whose duty it was to make the same in the regular course of business.— Chan Kiu Sing v. Gordon, 171 Cal. 28, 151 P. 657. Colorado. The statutory inhibition against a party testi- fying on a claim against a deceased does not extend to the books of accounts between the party and deceased. — Haines v. Christie, 28 Colo. 502, 66 P. 883. But a physician in a proceeding to establish a claim against an estate for professional services rendered de- cedent is not qualified to testify at all as to such books. — Temple v. Magruder, 36 Colo. 502, 85 P. 832. Kansas. Books containing depositors of a bank, and iden- tified by the cashier are admissible to show that a person had no account, although no other proof was offered that it was correct. — State v. McCormick, 57 Kan. 440, 46 P. 777. Contemporaneous entries made by another in an ac- count book at the dictation of plaintiff, who could neither read nor write, when verified by each as to correct report and entry of items respectively, are admissible. — Mery- wethers v. Youmans, 81 Kan. 309, 105 P. 545. Montana. Books of account showing amounts expended for men and teams, handed to defendant by one who made them, and who was not called on to identify them, nor his absence accounted for, are not admissible, in the DECLARATIONS, BUSINESS, ETC. 259 absence of proof that they had been kept in the usual course of business, that the entries had been made con- temporaneously with the transactions, or that they had been honestly and correctly kept. — Meredith v. Bitter Root Irr. Co., 49 Mont. 204, 141 P. 643. Nebraska. Books which are otherwise unobjectionable may be introduced without calling the party or clerk who made them, where sufficient reason is given for not pro- ducing him.— Volker v. First Nat. Bank, 26 Neb. 602, 42 N. W. 732. An admission by a deceased that an account kept in a certain book is correct, is not sufficient to warrant the admission of a copy of the account in another book. — Fitch v. Martin, 74 Neb. 538, 104 N. W. 1072. New Mexico. Books of account may not be admitted in evidence unless the one who made them is produced or his absence accounted for. — Price v. Garland, 3 N. M. 505, 6 P. 472. Books of original entry cannot be used as evidence until the statute regulating their admission is first complied with.— Byerts v. Robinson, 9 N. M. 427, 54 P. 932. The statute governing the introduction of books of account supplemented, but did not supersede, the rule of the common law on the subject, and the conditions Im- posed by it do not apply to books kept by a clerk, if such clerk is produced as a witness and testifies that he made the entries as bookkeeper in the regular course of busi- ness and substantially at the time of the transactions recorded.— McKenzie v. King, 14 N. M. 375, 93 P. 703. Oklahoma. Entries must be verified by the bookkeeper who kept them, if aiive and accessible. — First Nat. Bldg. Co. v. Vandenberg. 29 Okl. 583, 119 P. 224. Oregon. The books of a merchant are secondary evidence of what is written therein, and are admissible to prove an account only when demanded by necessity, by proving the death or absence of the one who made them. — Raski v. Wise, 56 Or. 72, 107 P. 984. Texas. Books used by an agent in taking orders for trees are inadmissible, in the absence of proof of when he made the entries or that they were correctly made. — Missouri, 260 DECLARATIONS, BUSINESS, ETC. K. & T. Ry. Co. v. Morrison, 42 Tex. Civ. App. 598, 94 S. W. 173. To authorize the introduction of book accounts in evi- dence, it must be proved that the book or books contain original entries of the transactions pertinent to the busi- ness in question; that the entries were made in the regu- lar course of business at or near to the time the trans- actions were had; that the entries are such as to indi- cate what the charge is for; that the entries were made by one who was authorized to do so, and that he did the acts so recorded himself, or made the record upon in- formation derived from one who was authorized to do so; and that the transactions were regularly entered and the books correctly kept.— Stark v. Burkitt, 103 Tex. 437, 129 S. W. 343. When shop books to which, as books of original entry, have been transferred entries on slips of work done, made by workmen, are not available, through the absence of the bookkeeper who entered them, such time slips may not be used to prove the accounts to which they relate, in the absence of testimony by those who made them that the entries so made were correct and contemporaneous, or by such testimony of the foreman, if he had also signed the slips. — Randle v. Barden, (Tex. Civ. App.), 164 S. W. 1063. Parties to Whom Available. A party's account books may be used in evidence in favor of his adversary: Colorado: Plummer v. Struby-Estabrooke Merc. Co., 23 Colo. 190, 47 P. 294; Kipp v. Miller, 47 Colo. 598, 108 P. 164 (though not books of original entry). Kansas: Beyle v. Reed, 31 Kan. 113, 1 P. 264. Nebraska: Globe Sav. Bank v. Nat. Bank of Com., 64 Neb. 413, 89 N. W. 1030. Washington. Books of decedent are admissible, though made by plaintiff as his bookkeeper and timekeeper, suing for services, where they were made in the usual course of business and decedent examined and checked the books, and the items shown were interspersed with others. — Robertson v. O'Neill, 67 Wash. 121, 120 P. 884. DECLARATIONS AGAINST INTEREST 261 NOTE XVIII. (To Article 27.) 1 Ph. Ev. 280-300; T. E. ss. 630-643; Best, 501; R. N. P. 63; and see note to Price v. Lord Torrington, 2 S. L. C. 328. [2 Wigmore Ev., §§ 1517-1561 and notes.] The last case on the subject is Massey v. Allen, L. R. 13 Ch. Div. 558. Article 28.* declarations against interest. A declaration is deemed to be relevant if the declarant had peculiar means of knowing the mat- ter stated, if he had no interest to misrepresent it, and if it was opposed to his pecuniary or pro- prietary interest, (a) The whole of any such dec- laration, and of any other statement referred to in it, is deemed to be relevant, although matters may be stated which were not against the pecuni- ary or proprietary interest of the declarant; but statements, not referred to in, or necessary to ex- plain such declarations, are not deemed to be rele- vant merely because they were made at the same time or recorded in the same place, (b) A declaration may be against the pecuniary in- terest of the person who makes it, if part of it charges him with a liability, though other parts of the book or document in which it occurs may discharge him from such liability in whole or in part, and [it seems] though there may be no proof other than the statement itself either of such liability or of its discharge in whole or in part.(c) a These are almost the exact words of Bayley, J., in Gleadow v. Atkin, 1 C. & M. 423. b Illustrations fa), (b) and (c). c Illustrations (d) and (e). [The admission of declarations * See Note at end of Article. 262 DECLARATIONS AGAINST INTEREST A statement made by a declarant holding a lim- ited interest in any property and opposed to such interest is deemed to be relevant only as against those who claim under him, and not as against the reversioner, (d) An endorsement or memorandum of a payment made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment was made, is not sufficient proof of such payment to take the case out of the operation of the Statutes of Limitation ; (e) but any such declaration made in any other form by or by the direction of the person to whom the payment was made is, when such person is dead, sufficient proof for the purpose af oresaid. (f ) Any endorsement or memorandum to the effect above mentioned made upon any bond or other specialty by a deceased person, is regarded as a declaration against the proprietary interest of the declarant for the purpose above mentioned, if it is shown to have been made at the time when it purports to have been made;(g) but it is un- certain whether the date of such endorsement or against interest is an exception to the hearsay rule and is predicated on the fact of unavailability of evidence from an- other source, through death or otherwise. See 2 Wigmore Ev., § 1456 et seq.] d" Illustration (g); see Lord Campbell's judgment in case quoted, p. 177. e 9 Geo. IV, c. 14, s. 3. [Many states have by statute dealt with the subject of creditors' indorsement of payment. 2 Wigmore Ev., § 1466.] f Bradley v. James, 13 C. B. 822. g 3 & 4 Will. IV, c. 42, which is the Statute of Limitations relating to Specialties, has no provision similar to 9 Geo. IV, c. 14, s. 3. Hence, in this case the ordinary rule is unal- tered. DECLARATIONS AGAINST INTEREST 263 memorandum may be presumed to be correct without independent evidence, (h) Statements of relevant facts opposed to any other than the pecuniary or proprietary interest of the declarant are not deemed to be relevant as such.(i) Illustrations. (a) The question Is, whether a person was born on a par- ticular day. An entry in the book of a deceased man-midwife in these words is deemed to be relevant. — 1 "W. Powden, Junr.'s wife, Filius circa hor. 3 post merid. natus H. W. Fowden, Junr., Ap. 22, Alius natus, Wife, £1 6s. Id., Pd. 25 Oct., 1768." (b) The question is, whether a certain custom exists in a part of a parish. The following entries in the parish books, signed by de- ceased church wardens, are deemed to be relevant: "It is our ancient custom thus to proportion church-lay. The chapelry of Haworth pay one-fifth, &c." Followed by — "Received of Haworth, who this year disputed this our an- cient custom, but after we had sued him, paid it accordingly — £8, and £1 for costs." — 2 [A credit by the assessors of A's tax for a given year is evidence against the town. Boston v. Weymouth, 4 Cush. (Mass.) 538. But the oral declarations of a deceased collector that a tax had been paid were held irrelevant, in Framingham v. Barnard, 1 Met. (Mass.) 524, the court observing that Iligham v. Ridgway went no far- ther than to admit written declarations or entries.] h See the question discussed in 1 Ph. Ev. 302-305, and T. E. ss. 625-629, and see Article 85. [The authorities in this country would seem to confirm the doctrine of Lord Ellen- borough in Rose v. Bryant, 2 Camp. 321, that such endorse- ments cannot be admitted unless they are proved to have been written at a time when they must have been against the endorser's interest. Roseboom v. Billington, 17 Johns. (N. Y.) 182; ("lap v. Ingersol, 2 Fairf. (Me.) 83; Coffin v. Bucknam, 3 id. 82; Beatty v. Clement, 12 La. An. 471; Adams v. Seitzenger, 1 S. & R. (Pa.) 243.] i Illustration (h). 1 Higham v. Ridgway, 2 Smith, L. C. 318, 7th ed. [Thomp- son v. Stevens, 2 Nott & McCord (S. C), 493.] 2 Stead v. Heaton, 4 T. R. 669. 264 DECLARATIONS AGAINST INTEREST (c) The question is, whether a gate on certain land, the property of which is in dispute, was repaired by A. An account by a deceased steward, in which he charges A with the expense of repairing the gate, is deemed to be irrelevant, though it would have been deemed to be relevant if it had appeared that A admitted the charge. — 3 (d) The question is, whether A received rent for certain land. A deceased steward's account, charging himself with the receipt of such rent for A, is deemed to be relevant, although the balance of the whole account is in favor of the stew- ard. — 4 (e) The question is, whether certain repairs were done at A's expense. A bill for doing them, receipted by a deceased carpenter, is deemed to be relevant — 5 — irrelevant — 6 — there being no other evidence either that the repairs were done or that the money was paid. (f) The question is, whether A (deceased) gained a settle- ment in the parish of B by renting a tenement. A statement made by A, while in possession of a house, that he had paid rent for it, is deemed to be relevant, because it reduces the interest which would otherwise be inferred from the fact of A's possession. — 7 (g) The question is, whether there is a right of common over a certain field. A statement by A, a deceased tenant for a term of the land in question, that he had no such right, is deemed to be rele- vant as against his successors in the term, but not as against the owner of the field. — 8 (h) The question is, whether A was lawfully married to B. A statement by a deceased clergyman that he performed the marriage under circumstances which would have rendered him liable to a criminal prosecution, is not deemed to be rele- vant as a statement against interest. — 9 3 Doe v. Beviss, 7 C. B. 456. 4 Williams v. Graves, 8 C. & P. 592. 5 R. v. Heyford, note to Higham v. Ridgway, 2 S. L. C. 333, 7th ed. 6 Doe v. Vowles, 1 Mo. & Ro. 261. In Taylor v. Witham, L. R. 3 Ch. Div. 605, Jessel, M. R., followed R. v. Heyford, and dissented from Doe v. Vowles. Hunt v. Evans, 49 Tex. 311. 7 R. v. Exeter, L. R. 4 Q. B. 341. 8 Papendick v. Bridgewater, 5 E. & B. 166. 9 Sussex Peerage Case, 11 C. & F. 108. DECLARATIONS AGAINST INTEREST 265 STATEMENTS AGAINST INTEREST. In General. Declarations against proprietary interest are admissible: California: Harp v. Harp, 136 Cal. 421, 69 P. 28 (by grantee in absolute deed, that it was intended merely for security) ; Tench v. McMeekan, 17 Cal. App. 14, 118 P. 476 (by defendant's grantor, that he held the property in trust). Colorado: Allen v. Shires, 47 Colo. 433, 107 P. 1070 (by grantor, gift of deed to defendant, and that he was the owner of the premises). Nebraska: Harrison v. Harrison, 80 Neb. 103, 113 N. W. 1042. (By father, that a farm was bought for the son who lived with him, and that the son was to have it after his death.) Texas: Lord v. New York Life Ins. Co., 95 Tex. 216, 66 S. W. 290 (by insured, that he had given a certain policy to his sister); Schauer v. VonSchauer, (Tex. Civ. App.), 138 S. W. 145 (by a father, gift and delivery of note). Declarations of a person injured, tending to show that the accident was his own fault, are admissible as against him or his heirs: Kansas: Walker v. Brantner, 59 Kan. 117, 52 P. 80 (en- gineer, that his injuries were due to his negligence). Texas: Smith v. International & G. N. R. Co., 34 Tex. Civ. App. 209, 78 S. W. 556 (a few hours after being hurt, that he was asleep on the track when struck by the train). Declarations against interest cannot be annulled or ex- plained away by counter declarations. — Nutter v. O'Don- nell, 6 Colo. 253; Harrison v. Harrison, 80 Neb. 103, 113 N. W. 1042. California. Declarations of a party to a boundary agree- ment, that the boundary was provisional and subject to future agreement, are not against interest, and are inad- missible.— Thaxter v. Inglis, 121 Cal. 593, 54 P. 86. Declarations of a decedent against his interest in re- spect to his real property, are admissible. (That declar- ant held certain property in trust for the original grantor.) —Tench v. McMeekan, 17 Cal. App. 14, 118 P. 476. Colorado. A book in which was entered fees collected by the clerk of a district court is admissible to charge him 266 DECLARATIONS AGAINST INTEREST and his sureties, though it was not a book required by law to be kept.— Cooper v. People, 28 Colo. 87, 63 P. 314. Declarations of a deceased wife that she had given a deed of certain property to defendant are admissible as against her surviving husband. — Allen v. Shires, 47 Colo. 433, 107 P. 1070. Kansas. Declarations of a deceased that there was no contract fixing the amount which plaintiff should be paid for the care of decedent, for the value of which he was suing, are admissible. — Wright v. Stage, 83 Kan. 445, 111 P. 467. Declarations made by a person since deceased against his pecuniary or proprietary interest, concerning facts within his knowledge, which are material and rele- vant to the issue, are admissible, though not a part of the res gestae, and the declarant was not a party nor in privity with a party to the action. (In action for contri- bution between sureties, the question being whether a note was given in payment of or in renewal of former note, declaration of deceased owner of the notes, that "The notes are paid, so far as I am concerned," admissible.) — Mentzer v. Burlingame, 85 Kan. 641, 118 P. 698. The admission of the evidence rests upon the improb- ability that one will admit that which it is for his pecuniary interest to deny. — Mentzer v. Burlingame, 85 Kan. 641, 118 P. 698. Montana. Declarations of a locator of a mining claim, made after patent, that plaintiff was the owner of a three- eighths interest, and the fact that he joined with plaintiff in the execution of two leases thereon, are admissible. — Delmoe v. Long, 35 Mont. 38, 88 P. 778. Nebraska. Declarations as to financial condition of the declarant, when they imply insolvency, are against in- terest and admissible.— Quinby v. Ayers, 1 Neb. (Unof.) 70, 95 N. W. 464. Letter by city clerk acknowledging receipt of claim for damages sent at or near the time he received the claim is admissible to show date of filing claim. — South Omaha v. Wrzensinski, 66 Neb. 790, 92 N. W. 1045. Texas. Declarations of a former owner after parting with DECLARATIONS AGAINST INTEREST 267 his interest are inadmissible. — Wilson v. Simpson, 68 Tex. 306, 4 S. W. 839. Declarations of one in charge of personal property that plaintiff had sold it to him are not admissible to disprove ownership of plaintiff suing a third person for conversion of the goods. — Slocum v. Putnam, (Tex. Civ. App.), 25 S. W. 52. Declarations of a wife as to having parted with her community interest in certain property are admissible as against interest. — Shelburn v. Crocklin, (Tex. Civ. App.), 42 S. W. 329. Declarations of stockholders of a school association that a lost deed to certain land conveyed to the association contained in the granting clause the expression "to be used for school purposes only," are inadmissible, as they were not holders of the title, and there was nothing to show what their interest was, for which only they could be bound in any event.— Long v. Moore, 19 Tex. Civ. App. 363, 48 S. W. 43. Declarations of deceased that he had given an insur- ance policy on his life to his sister, admissible to prove both the gift and the delivery. — Lord v. New York Life Ins. Co., 95 Tex. 216, 66 S. W. 290. Recital in a deed of the receipt of purchase money is inadmissible to prove payment of the purchase money as against those claiming under a prior deed. — Ryle v. Davidson, 102 Tex. 227, 115 S. W. 28. Declarations of deceased as to gift of note to son ad- missible to prove delivery. — Schauer v. VonSchauer, (Tex. Civ. App.), 138 S. W. 145. Utah. Declarations that deceased had deeded a mining claim to another and had received pay for the same is an admission against interest. — Scott v. Crouch, 24 Utah 377, 67 P. 1068. Declarations, whether verbal or written, made by a per- son as to facts presumably within his own knowledge, are an exception to the hearsay rule, and admissible in evidence, if relevant to the matter of inquiry, when it appears that the declarant is dead, that the declaration was at the time it was made against a pecuniary or pro- prietary interest of the declarant, that it was fact in rela- 268 DECLARATIONS AGAINST INTEREST tion to a matter of which he was personally cognizant, and that he had no probable motive to falsify or misstate the fact declared, which is generally shown by proof that it was made ante litem motam. — Smith v. Hanson, 34 Utah 171, 96 P. 1087. A declaration of a person since deceased is properly admitted, though the declarant is in privity with the party litigant offering the declaration, and where it is received, not as an admission of one identified in interest with a party litigant, but as direct evidence of the fact declared. —Smith v. Hanson, 34 Utah 171, 96 P. 1087. Declarations of a deceased that he had not started a suit against his daughter to recover property conveyed to her, and was not going to, nor had he any knowledge of any such suit being started are not against a pecuniary or proprietary interest. — Smith v. Hanson, 34 Utah 171, 96 P. 1087. Washington. Books kept by a banking firm cannot be introduced to show payments made on account of certain notes, so as to prevent the bar of the statute of limita- tions from attaching.— Schlottfeldt v. Bull, 18 Wash. 64, 50 P. 590. Indorsements of Payment. Arkansas. Indorsement of part payment made on a note must be shown to have been made before the bar of the statute attached. — Ruddell v. Folsom, 14 Ark. 213. Minnesota. It must be made to appear de hors the in- dorsement that the indorsement was made at a time when it was against the interest of the holder to make it. —Young v. Perkins, 29 Minn. 173, 12 N. W. 515. "The exception (to the Hearsay rule) presupposes, like most of the others, first, a necessity for resorting to hear- say, i. e. the death of the declarant, or some other condition rendering him unavailable for testimony in court; and, sec- ondly, a Circumstantial Guarantee of Trustworthiness — in this instance, the circumstance that the fact stated, being j:ga inst the declarant's interest, is not likely to have been stated untruthfully." 2 Wigmore Ev., § 1455. NOTE XIX. (To Article 28.) The best statement of the law upon this subject will be found in Higham v. Ridgway, an* the note thereto, 2 S. L.. DECLARATION BY TESTATORS 269 C. 318. See also [2 Wigmore Ev., § 1455 et seq.]; 1 Ph. Ev. 252-280; T. E. ss. 602-629; Best, s. 500; R. N. P. 584. A class of cases exists which I have not put into the form of an article, partly because their occurrence since the com- mutation of tithes must be very rare, and partly because I find a great difficulty in understanding the place which the rule established by them ought to occupy in a systematic statement of the law. They are cases which lay down the rule that statements as to the receipts of tithes and moduses made by deceased rectors and other ecclesiastical corpora- tions sole are admissible in favor of their successors. There is no doubt as to the rule. (See, in particular, Short v. Lee, 2 Jac. & Wal. 464; and Young v. Clare Hall, 17 Q. B. 537). The difficulty is to see why it was ever regarded as an excep- tion. It falls directly within the principle stated in the text, and would appear to be an obvious illustration of it; but in many cases it has been declared to be anomalous, inasmuch as it enables a predecessor in title to make evidence in favor of his successor. This suggests that Article 28 ought to be limited by a proviso that a declaration against interest is not relevant if it was made by a predecessor in title of the per- son who seeks to prove it, unless it is a declaration by an ecclesiastical corporation sole, or a member of an eccles- iastical corporation aggregate (see Short v. Lee), as to the receipt of a tithe or modus. Some countenance for such a proviso may be found In the terms in which Bayley, J., states the rule in Gleadow v. At- kin, and in the circumstance that when it first obtained cur- rency the parties to an action were not competent witnesses. But the rule as to the indorsement of notes, bonds, &c, is distinctly opposed to such a view. Article 29. declarations by testators as to contents of will. The declarations of a deceased testator as to his testamentary intentions, and as to the con- tents of his will, are deemed to be relevant when his will has been lost, and when there is a question as to what were its contents ; and when the question is whether an existing will is genuine or was improperly obtained; and when the question is whether any and which of more existing documents than one constitutes his will. 270 DECLARATION BY TESTATORS In all these cases it is immaterial whether the declarations were made before or after the mak- ing or loss of the will, (a) [3 Wigmore Ev., §1734 et seq.] STATEMENTS OF TESTATOR. Contents of Will. Kansas. In a proceeding to probate a will, statements and conduct of the testator at and about the time of making a will which had been lost, spoliated or destroyed after his death, as well as his declarations as to its con- tents and his purpose in making bequests are admissible. — Schnee v. Schnee, 61 Kan. 643, 60 P. 738. Nebraska. Testimony of contents of a will, through knowl- edge derived by hearing it read by testator and not by inspection, is in effect only testimony as to the testator's declarations.— Clark v. Turner, 50 Neb. 290, 69 N. W. 843. The declarations of a testator are admissible only to corroborate other evidence as to the contents of a lost will.— Clark v. Turner, 50 Neb. 290, 69 N. W. 843; Williams v. Miles, 68 Neb. 463, 94 N. W. 705. Texas. Declarations of a testator are admissible to show contents of will. — Buchanan v. Rollings, (Tex. Civ. App.), 112 S. W. 785. Destruction or Revocation of Will. Declarations as to the revocation of a will, made long after the act was done, are inadmissible. — Glass v. Scott, 14 Colo. App. 377, 60 P. 186; Caeman v. Van Harke, 33 Kan. 333, 6 P. 620; McElroy v. Phink, 97 Tex. 147, 76 S. W. 753. Declarations after the execution of a will, if made within a reasonable time prior to death, are admissible to show that the will had not been revoked: a Sugden v. St. Leonards, L. R. 1 P. D. (C. A.) 154. In questions between the heir and the legatee or devisor such statements would probably be relevant, as admissions by a privy in law, estate, or blood. Gould v. Lakes, L. R. 6 P. D. 1; Doe v. Palmer, 16 Q. B. 747. The decision in this case at p. 757, followed by Quick v. Quick, 3 Sw. & Tr. 442 is over- ruled by Sugden v. St. Leonards. DECLARATION BY TESTATORS 271 Oregon: Miller's Will, In re. 49 Or. 452, 90 P. 1002 (that her will had been deposited with a third person and was still there within a few days of her death, and express- ing affection for the devisees). Texas: Buchanan v. Rollings. (Tex. Civ. App.), 122 S. W. 962. Colorado. Declarations at the time of revocation by draw- ing a line through the signature of testator are admis- sible, but not declarations long after the act was done. — Glass v. Scott, 14 Colo. App. 377, 60 P. 186. Declarations of testatrix made at the time of drawing a line through the signature of her will, are admissible to show the intent of the act. — Glass v. Scott, 14 Colo. App. 377, 60 P. 186. Declarations as to revocation of former will, made at the time of making subsequent will, admissible. — Whit- ney v. Hanington, 36 Colo. 407, 85 P. 84. Nebraska. Declarations of a testator, extending to a short time before his death, that his will had not been revoked, are admissible.— Clark v. Turner, 52 Neb. 190, 69 N. W. 843. Oregon. Declarations of testator that he had destroyed his will are admissible in an action to establish, a lost will, as well as declarations that he adhered to will. — McCoy's Will. In re. 49 Or. 579. 90 P. 1105. Texas. Declarations of a testator are receivable to strengthen the proof of the execution of the will and to rebut the presumption of revocation. — Tynan v. Paschal, 27 Tex. 286, 300. Verbal declarations to prove revocation are admissible, when made shortly before testator's death. (That she had sent for and gotten her will, and had destroyed it.) — UcKlroy v. Phink, 97 Tex. 147. 76 S. W. 753. Showing Undue Influence. California. Declarations of testatrix after the execution of her will, fxpr^ssing her dissatisfaction with the will and a desire to execute a new one. are inadmissible to show undue influence. — Calkins. In re, 112 Cal. 296, 44 P. 577. Statements by a testatrix several months after the execution of a will that she did not make a will and did 272 DECLARATION BY TESTATORS not know what was in the will, that she was sorry her daughter Lizzie was not in the will the same as the others and that she did not feel safe if she should make another will, are inadmissible to show undue influence. — Kauf- man's Estate, In re, 117 Cal. 288, 49 P. 192. Declarations of a testator regarding the statements or acts of those by whose influence it was alleged he was in- duced to make the will, are inadmissible on the question of undue influence, the soundness of testator's mind not being in question. — Donovan's Estate, In re, 140 Cal. 390, 73 P. 1081. Declarations, when forming no part of res gestae of testamentary act, are inadmissible for or against the genuineness or validity of the instrument, except as to determination of sanity or undue influence. — Thomas' Es- tate, In re, 155 Cal. 488, 101 P. 798. Idaho. The declarations of a testator, made after the execution of a will, showing his dissatisfaction therewith and his intention to execute a new will, are not admis- sible to show that the will was executed under duress or undue influence. — Gwin v. Gwin, 5 Ida. 271, 48 P. 295. Kansas. While declarations of a testator are not admis- sible as mere impeachment of the validity of the will, they are admissible as evidence of the testator's state of mind; and where the question is one of undue influence declarations of testator before and after the execution of the will, showing unfriendly feeling and relations with one of the principal devisees, are admissible. — Mooney v. Olsen, 22 Kan. 78. Nebraska. Statements of a testator made after the execu- tion of the will are not admissible to show coercion or undue influence at the time of executing the will, and such statements can only be used for the purpose of showing his state of mind after the making of the will, and, if there was independent proof of coercion, to show that the action of making the will was influenced by such coercion. — Davidson v. Davidson, 2 Neb. (Unof.) 90, 96 N. W. 409. Texas. Declarations of a testator as to circumstances inducing or attending the execution of a will are inad- missible. — Kennedy v. Upshaw, 64 Tex. 411, 417. DECLARATION BY TESTATORS 273 Statements made after a will wa.s executed expressive of the dissatisfaction of the testatrix with it are admis- sible, not to prove actual fraud or improper influence connected with its execution, but to establish the influ- ence and effect of the external acts, if any, upon the mind of the testatrix herself. — Campbell v. Barrera, (Tex. Civ. App.), 32 S. W. 724. EXISTENCE OR NON-EXISTENCE OF WILL. Arkansas. Declarations of deceased as to not having made a will, uttered about a year after the date of an instrument claimed to be a will, are not competent to prove the will a forgery. — Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33. Nebraska. Declarations of a testator alone are sufficient to prove the existence of a lost will. — Williams v. Miles, 68 Neb. 463, 94 N. W. 705. Texas. The conduct and declarations of a testator be- fore and after the making of a will, are admissible, where the issue is upon the sanity of the testator, but not where it is upon the execution of the instrument. (Three days after date of an alleged codicil, that he had made no change in the disposition of his property and intended making none, inadmissible). — Kennedy v. Upshaw, 64 Tex. 411, 417. Declarations at time of executing a will that he "already had Adams and Henry fixed," are not admissible to estab- lish the execution of a prior will. — Maris v. Adams, (Tex. Civ. App.), 166 S. W. 475. TESTATOR'S INTENTION. California. Declarations of testator, showing his affec- tions, are admissible if made within reasonable time of the execution of his will. — McDevitt's Estate, In re, 95 Cal. 11, 30 P. 101. Declarations of a testator that he intended to remem- ber a certain Mrs. H. for the kindness she had shown him are not admissible in a prosecution for perjury of one of the attesting witnesses of a forged will in favor of said Mrs. H.— People v. Rodley, 131 Cal. 240, 63 P. 351. Texas. When the issue is want of capacity of the testa- tor to make a will, it is permissible to prove his or her 274 DECLARATIONS AS TO PUBLIC declarations made antecedent to the time of making the will, either showing an intention to make such disposition of the property as was finally made, or to prove the con- trary. (That testatrix intended to leave all her property to her husband.)— Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621. Article 30.* declarations as to public and general rights. Declarations are deemed to be relevant (sub- ject to the third condition mentioned in the next article) when they relate to the existence of any public or general right or custom, or matter of public or general interest. But declarations as to particular facts from which the existence of any such public or general right or custom or mat- ter of public or general interest may be inferred, are deemed to be irrelevant. A right is public if it is common to all Her Majesty's subjects (or all the citizens of a State), and declarations as to public rights are relevant, whoever made them. A right or custom is general if it is common to any considerable number of persons, as the inhabitants of a parish, or the tenants of a manor. Declarations as to general rights are deemed to be relevant only when they were made by persons who are shown, to the satisfaction of the judge, or who appear from the circumstances of their statement, to have had competent means of knowledge, (a) Such declarations may be made in any form and manner. * See Note at end of Article. DECLARATIONS AS TO PUBLIC 275 a ["The principle that the witness must appear to have been in a position to obtain adequate knowledge finds an ap- plication to the present Exception (to the Hearsay rule). The reputation, to be admissible, must obviously have been formed among- a class of persons who were in a position to have sound sources of information." 2 Wigmore Ev., § 1591.] Illustrations. (a) The question is, whether a road is public. A statement by A (deceased) that it is public is deemed to be relevant. — 1 A statement by A (deceased) that he planted a willow (still standing) to show where the boundary of the road had been when he was a boy is deemed to be irrelevant. — 2 (b) The following are instances of the manner in which declarations as to matters of public and general interest may be made: They may be made in Maps prepared by or by the direction of persons interested in the matter. — 3 Copies of Court Rolls. — 4 Deeds and leases between private persons. — 5 Verdicts, judgments, decrees and orders of courts, and sim- ilar bodies — 6 — if final. — 7 DECLARATIONS AS TO PUBLIC AND GENERAL RIGHTS. In General. "What is offered must be in effect a reputation, not the mere assertion of an individual. This follows from the nature of the foregoing principle (of trustworthiness through ob- servation and discussion by the whole community), and is the thought running through the language of all the judges." 2 Wigmore Ev., 8 1584. California. "We think the terms ('facts of general notoriety and interest') stand for facts of a public nature, either at home or abroad, not existing in the memory of 1 Crease v. Barrett, per Parke, B., 1 C. M. & R. 929. 2 K. v. Bliss, 7 A. & E3. 550. 3 Implied in Hammond v. Bradstreet, 10 Ex. 390, and Pipe v. Fulcher, 1 10. ft E. 111. In each of these cases the map was rejected as not properly qualified. 4 Crease v. Barrett, i < '. M. & u 928. 5 Plaxton v. Dare, 10 B. & C. 17. 6 Duke ot Newcastle v. Broxtowe, l B. & Ad. -73. 7 Pirn v. Curell, t; Mi & W. 234, 266. 276 DECLARATIONS AS TO PUBLIC men as contradistinguis) 'd from facts of a private nature existing within the knowledge of living men, and as to which they may be examined as witnesses." — Gallagher v. Market Street R. Co., 67 Cal. 15, 6 P. 869. An old map, generally well known and accepted as such, is admissible in connection with certain deeds introduced, in which reference was made to the said map for descrip- tion.— Taylor v. McGonigle, 120 Cal. 123, 52 P. 159. A public highway cannot be proved by showing that it was generally reputed to be a highway. — Shepherd v. Turner, 129 Cal. 530, 62 P. 106. The use and extent of use made of a road may be ad- missible to show that it had become a public highway by dedication.— Shepherd v. Turner, 129 Cal. 530, 62 P. 106. Massachusetts. Declarations as to "public and general rights" must be declarations of the public or general rights, and not of the particular exercise of it. — Inhabit- ants of Enfield v. Woods, 212 Mass. 547, 99 N. E. 331. On an issue whether a town acquired title to a tract of land for a common by adverse possession which began with a parol gift, a witness is allowed to testify that he had heard his grandmother and the rest of the "old peo- ple" state that a certain person gave the land to the town for a common. — Inhabitants of Enfield v. Woods, 212 Mass. 547, 99 N. E. 331. Declarations or Reputation as to Boundaries. When boundaries are public ones they may in cases of necessity be established by hearsay and reputation. — Muller v. Southern Pac. Ry. Co., 83 Cal. 240, 23 P. 266; Stetson v. Freeman, 35 Kan. 523, 11 P. 431. Reputation must exist before controversy arises. — Id. California. Reputation as to the boundaries of parishes and towns is only received where such boundary is of remote antiquity. — Vanderslice v. Hanks, 3 Cal. 27, 45. Where the boundary line of a county can be proved by reputation, the proof must be confined to the declarations of persons having knowledge, and who are since de- ceased. — Lay v. Neville, 25 Cal. 546. The boundary line of a county cannot be proved by evi- dence showing where it is reputed to run, among persons living near the line, except where it is an ancient boun- DECLARATIONS AS TO PUBLIC 277 dary and depends upon prescription, or cannot be proved except by parol. — Lay v. Neville, 25 Cal. 545. The location of the boundary line between two counties is a matter of common interest, and may be proved by reputation. — People v. Velarde, 59 Cal. 457. Reputation is admissible to establish a boundary line of general or public interest. — Muller v. Southern Pac. Ry. Co., 83 Cal. 240, 23 P. 265. Florida. Reputation or hearsay, taken in connection with other evidence, is entitled to respect in cases of boundary when the lapse of time is so great as to render it difficult, if not impossible, to prove the boundary by the existence of the primitive landmarks or other evidence than that of hearsay. — Daggett v. Willey, 6 Fla. 511. Kansas. Reputation to prove public boundaries admis- sible.— Stetson v. Freeman, 35 Kan. 523, 11 P. 431. Oregon. Reputation admissible to prove ancient boun- dary. — Goddard v. Parker, 10 Or. 102. Reputation as to boundaries must have reference to a time ante litem motam. — Stroud v. Springfield, 28 Tex. 649. Texas. When the location of a county boundary is a ma- terial fact to be determined, evidence of general reputation is admissible in criminal as well as in civil cases. — Cox v. State, 41 Tex. 4. Evidence of general reputation as to boundary lines of a survey is admissible, but the reputation must have been formed before controversy begun. — Clark v. Hills, 67 Tex. 152, 2 S. W. 356. Evidence as to general reputation as to boundary lines of a survey are admissible where the boundaries are ancient and their locality seems to have been a matter of sufficient interest in the neighborhood to have been the subject of observation and conversation among the people. —Clark v. Hills, 67 Tex. 152, 2 S. W. 356. Reputation as to corners of a survey admissible. — Mat- thews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61. Common repute as to the location of any line of a sur- vey is admissible in aid of the search for the original corners. (Testimony that there was pointed out to a wit- ness a certain stake as corner, and such had at that time 278 DECLARATIONS AS TO PUBLIC 'and since been reputed to be corner of the survey.) — Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61. Evidence of the general reputation and recognition of the location of a boundary line of a survey is admissible. — Goodson v. Fitzgerald, 40 Tex. Civ. App. 619, 90 S. W. 898. Declarations of a deceased surveyor as to the location of a corner of a survey, admissible. — Simpson v. De Ramirez, 50 Tex. Civ. App. 25, 110 S. W. 149. Reputation beginning forty years after fines and corners were located, and which appears to have originated from a survey made by a surveyor who is not shown to have had any knowledge as to the location of the survey, is inadmissible. — State v. Dayton Lumber Co., (Tex. Civ. App.), 159 S. W. 391. Washington. Hearsay evidence is admissible both upon questions of boundary affecting public rights and also in the case of disputes as to boundaries between private owners. — Inmon v. Pearson, 47 Wash. 402, 92 P. 279. REPUTATION OR DECLARATIONS AS TO PRIVATE BOUNDARIES. California. According to the authorities in the majority of the American states, it is not necessary that the hearsay, to entitle it to be received, should be general, or relate to boundaries in which the public or numerous persons are interested. It may be limited to particular facts embracing the declarations of a single individual, provided such individual had, from his situation, the means of knowledge and was disinterested in the matter, and may relate only to the boundary of a private estate. (Declarations of a deceased surveyor allowed as to the boundary line of a grant.) — Morton v. Folger, 15 Cal. 275, 279. Texas. Declarations of deceased parties as to private boundary lines, admissible. — Stroud v. Springfield, 28 Tex. 666; Hurt v. Evans, 49 Tex. 316; Tucker v. Smith, 68 Tex. 478, 3 S. W. 671.. Common reputation or understanding in the neighbor- hood is admissible with regard to ancient boundaries, but it must be general and concurrent, and must have been formed before the commencement of tbe controversy in DECLARATIONS AS TO PUBLIC 279 which it is used as evidence. — Stroud v. Springfield, 28 Tex. 666. Reputation admissible to show boundaries of private land.— Clark v. Hills. 67 Tex. 152, 2 S. W. 356. The declaration of one in possession when pointing out his boundaries to which he claimed, at a time when there was nothing making it to his interest to misrepresent the facts, is admissible, the declarant being dead. — Goodson v. Fitzgerald, 40 Tex. Civ. App. 619. 90 S. W. 898. Declarations of a remote vendor at the time of his con- veyance as to the boundary in dispute, admissible. — Bollinger v. McMinn. 47 Tex. Civ. App. 89, 104 S. W. 1079. Admissible to prove location of private boundaries. — Thacker v. Wilson, (Tex. Civ. App.), 122 S. W. 938. Recitals in a deed sixty years old of prior conveyances which would show a good title in the grantor of the later deed are admissible on behalf of defendants claiming under such grantor when the records where the early deeds would likely be found had been burned and no copies could be found. — Houston Oil Co. v. Drumwright, (Tex. Civ. App.), 162 S. W. 1011. Washington. In the United States hearsay evidence is ad- missible both upon questions of boundary affecting public rights and also in the case of disputes as to boundaries between private landowners. — Inmon v. Pearson. 47 Wash. 402, 92 P. 279. DECLARATIONS OR REPUTATION AS TO TITLE OR OWNERSHIP. Arkansas. Reputation as to ownership inadmissible. — Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. Declarations as to title are not competent. — Waldroop v. Ruddell, 96 Ark. 171, 131 S. r duty to make the statement (by officers or those having a public duty). The existence of the duty, and not the source of its creation, is the sanc- tioning circumstance, Not all, nor the greater part, of an officer's conceded duties are expressly laid upon him by writ- ten law. They may arise from the oral and casual directions of a superior, or from the functions necessarily inherent In the office. Whore the nature of the office fairly requires or renders appropriate the making and recording of a specific .statement, that statement is to be regarded as made under . .ili.ja.1 duty." 3 Wigmore Ev., § 1633. a Sturla v. Freccia, L. R. 5 App. Ga. 623; see especially p. 633-634 and 643-644. T. E. (from Greenleaf) ss. 1429, 1432. See also Queen's Proctor v. Fry, L. R. 4 P. D. 230. [3 Wig- more Ev., § 1639 et seq.] 320 RELEVANCY OF ENTRY IN PUBLIC RECORD Entries in public or official books or records, made in the performance of his duty by a public officer of the state, or by any other person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated: Idaho: Black Canyon Irr. Dlst. v. Marple, 19 Ida. 176, 112 P. 766 (order calling special meeting of county com- missioners entered in minutes by clerk). Kansas: Williams v. Hill, 16 Kan. 23 (record copy of deed). Nevada: Reno Brewing Co. v. Packard, 31 Nev. 433, 103 P. 415 (U. S. patent to land). Oregon: Stanley v. Smith, 15 Or. 505, 16 P. 174 (duly recorded conveyance). California. To entitle a book to the character of an official register it is not necessary that it be required by an express statute to be kept, nor that the nature of the office should render the book indispensable. It is sufficient that it is directed by the proper officer to be kept. (Book of accounts kept in the office of an alcade admissible as a register of the acts of that officer.) — Kyburg v. Perkins, 6 Cal. 675. Copy of a vessel register of the registry or transfer of a vessel, showing that plaintiffs were part owners of the vessel, is not admissible, in the absence of proof of authority to make the entry. — Moynihan v. Drobaz, 124 Cal. 212, 56 P. 1026. Entries necessary to the conduct of the office are ad- missible, though not required by law.— Hesser v. Rowley, 139 Cal. 410, 73 P. 156. Idaho. By statute, entries in public or official books or records, made in the performance of his duty by a public officer of this state or by any other person in the per- formance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (Order calling special meeting of board of county commissioners, entered on minute book.) — Black Canyon Irr. Dist. v. Marple, 19 Ida. 176, 112 P. 766. Kansas. Official statements in official records, or, in the absence of the books, immediate copies, duly verified, are evidence. — Cooper v. Armstrong, 4 Kan. 30. RELEVANCY OF ENTRY IN PUBLIC RECORD 321 To fix the time of issuance of a tax deed with reference to the time of the assignment of the certificate of sale, a book of tax sale certificate stubs, purporting to show the dates of issuance, found In the county treasurer's vault, without further identification was not admissible. —Noble v. Douglass, 56 Kan. 92, 42 P. 328. Any book essential or even convenient for the purposes required by statute will suffice. (Tax receipt stub book.) —Hudson v. Herman, 81 Kan. 627, 107 P. 35. Oregon. An officer of a city fire department may testify that a fire bell did not ring before a certain hour on a given night, basing his knowledge on an automatic regis- ter in use by the department. — State v. McDaniel, 39 Or. 161, 65 P. 520. Records which come within the designation of "official registers" are competent evidence of the facts properly recorded therein, although they relate to matters not within the personal knowledge of the officer making them (Register of death.)— State v. McDonald, 55 Or. 419, 104 P. 967. Texas. Entries in the record book of the state controller are admissible in evidence, though written in pencil. — Franklin v. Tiernan, 56 Tex. 618. Washington. Commitment papers in an ex parte proceed- ing under statute, received to show that plaintiff was in- sane at the time.— Roberts v. Pacific Tel. & Tel. Co., (Wash.), 160 P. 965. Official registers are admissible In evidence of any facts required to be recorded in them, or which occur in the presence of the registering officer. — Armstrong v. Modern Woodmen of America, (Wash.), 160 P. 946. United States. Such writings are admissible in evidence on account of their public nature, though their authen- ticity be not confirmed by the usual tests of truth, namely, the swearing and cross-examination of the persons who prepared them. They are entitled to this extraordinary degree of confidence partly because they are required by law to be kept, partly because their contents are of public interest and notoriety, but principally because they are made under the sanction of an oath of office, or at least under that of official duty, by accredited agents appointed 322 RELEVANCY OF ENTRY IN PUBLIC RECORD for that purpose. Moreover, as the facts stated in them are entries of a public nature, it would often be difficult to prove them by means of sworn witnesses. — Gaines v. Relf, 12 How. (U. S.) 472, 570. Documents Filed. Arkansas. Poll books and certificates of election officers returned to county clerk, admissible. — Patton v. Coates, 41 Ark. Ill, 130; Merritt v. Hinton, 55 Ark. 12, 17 S. W. 270. North Dakota. Contract for sale of bank stock. Officers' report to comptroller of currency incompetent to show actual value of shares. — Patterson v. Plummer, 10 N. D. 95, 86 N. W. 111. Texas. Petition to legislature to issue headright bounty and donation certificate, on file in general land office, ad- missible.— Bailie v. Western Livestock Ass'n, 55 Tex. Civ. App. 473, 119 S. W. 325. Reports and Maps of Surveys. Reports and maps of surveys by officials are admissible: Kansas: Dent v. Simpson, 81 Kan. 217, 105 P. 542 (re- port of survey, by county surveyor). Texas: Myers v. Moody, (Tex. Civ. App.), 122 S. W. 920 (sketches and plats made from maps in general land office); Finberg v. Gilbert, (Tex. Civ. App.), 124 S. W. 979 (maps, and sketches therefrom, in use in general land office). Wyoming: Bd. Com'rs Sheridan County v. Patrick, 18 Wyo. 130, 107 P. 748 (field notes and plat of survey show- ing highway, on record in county recorder's office). Arizona. A map made by order of a military governor, defining the limits of water privileges, is inadmissible. — Dalton v. Rentaria, 2 Ariz. 275, 15 P. 37. California. Where a deed refers to a certain map duly recorded for description, no other map is admissible. — Caldwell v. Center, 30 Cal. 539. A map recorded in the recorder's office in pencil, is not recorded within the spirit and meaning of the re- cording act.— Caldwell v. Center, 30 Cal. 539. It is not necessary that the map of an "addition" in the county recorder's office be acknowledged. — Colton Land & Water Co. v. Swartz, 99 Cal. 278, 33 P. 878. RELEVANCY OF ENTRY IN PUBLIC RECORD 323 Portion of a map of a military reservation in records of war department, admissible. — Galvin v. Palmer, 113 Cal. 46, 45 P. 172. A map prepared by draughtsmen who have died, and used by surveyors for many years, is admissible. — Morcom v. Baiersky, (Cal. App.), 117 P. 560. Kansas. Map of land taken in condemnation proceedings, made by county surveyor, admitted. — Chicago, K. & N. R. Co. v. Davidson, 49 Kan. 589, 31 P. 131. Texas. Certified copies of maps from the general land office are admissible. — Houston v. Blythe, 60 Tex. 506. Sketches made from field notes on file in the land office are not admissible to show location of property. — Texas & P. Ry. Co. v. Thompson, 65 Tex. 186. A county map is admissible as an archive of the land office, although it was compiled four years after the filing of the suit. — Thatcher v. Matthews, (Tex. Civ. App.), 183 S. W. 810. Wyoming. Field notes and map from county records are admissible, though unsigned and unauthenticated, and it is not shown how they came into the clerk's office. — Bd. of Com'rs of Sheridan County v. Patrick, 18 Wyo. 130, 107 P. 748. Assessor's Books. Arkansas. In an action for fraudulently representing the solvency of another, tax books received in evidence to show that a person listed had no property not exempt. — Winter v. Baudel, 30 Ark. 362, 371. Tax assessment book not admissible as a basis for assessing value of right of way, being made for a different purpose, and not a fair criterion of market value. — Texas & St. L. R. Co. v. Eddy, 42 Ark. 527. Assessor's books competent to show value of personal property. — White v. Beal & Fletcher Grocer Co., 65 Ark. 278, 45 S. W. 1060. Tax schedule of cattle made by defendant's agent at his request relevant as an admission. — Beckwith v. Tal- bot, 2 Colo. 639, 651. Nevada. Assessor's books showing defendant's sworn valuation to assessor admissible to contradict him. — Vir- ginia & T. R. Co. v. Henry, 8 Nev. 165, 174. 324 RELEVANCY OF ENTRY IN PUBLIC RECORD Oregon. Where plaintiff claimed defendant's insolvency as excuse for failure to issue execution for more than twenty years, defendant could in rebuttal of presumption of insolvency introduce assessment rolls showing property assessed to him as reputed owner. — Beekman v. Hamlin, 23 Or. 313, 31 P. 707. Texas. Assessment books may be introduced as an ad- mission of a party's valuation of his property. — Boyer v. St. Louis, S. F. & T. R. Co., 97 Tex. 107, 76 S. W. 441. Washington. Assessment rolls unauthenticated cannot be admitted in a suit against a treasurer who used such rolls and received money upon them. — City of Seattle v. Parker, 13 Wash. 450, 43 P. 369. Entries in Books and On Documents of Officials. California. Entry of grant of land made in books of alcade's grants admissible. — Downer v. Smith, 24 Cal. 114. A book regularly kept by a sheriff containing mem- oranda of receipt of writs of attachment, dates of returns and proceedings thereon, though not required by statute, are admissible as entries in the regular course of business. — Hesser v. Rowley, 139 Cal. 410, 73 P. 156. Nebraska. The village records of the bond given by a licensed saloonkeeper, kept by the clerk of the village and identified by him as such are competent prima facie evidence of the execution and delivery of the bond. — Pilkins v. Haus, 87 Neb. 7, 126 N. W. 864. North Dakota. Record of weight of car of flax, taken by a subordinate of the state weighmaster's department of another state, in accordance with a system in vogue in the department and in pursuance of statute, is admissible. — Miller v. Northern Pac. Ry. Co., 18 N. D. 19, 118 N. W. 344. City treasurer's report of data copied by him from his books admissible. — City of Dickinson v. White, 25 N. D. 523, 143 S. W. 754. County treasurer's books kept by a deputy showing true condition of cash belonging to the county admissible in action to compel restitution of county funds paid by treasurer on private indebtedness. — Northern Trust Co. v. First Nat. Bank, 33 N. D. 1, 156 N. W. 212. RELEVANCY OF ENTRY IN PUBLIC RECORD 325 South Dakota. Postmaster's entries in a book regularly kept showing advices received and money orders drawn admissible, though no statute or postal regulation re- quired it— State v. Hall, 16 S. D. 6, 91 N. W. 325. Items of fees received by a register of deeds entered with other matters in a "reception book," instead of in a fee book, as required by law, inadmissible. — Putnam v. Custer County, 25 S. D. 542, 127 N. W. 641. Texas. Indorsement on land grant on file in general land office, that dues had been paid, admissible. — Davidson v. Ryle, 103 Tex. 209, 124 S. W. 616. Copy of memorandum on file in land office showing various steps as to issuance of certificate, admissible. — Allen v. Clearman, (Tex. Civ. App.), 128 S. W. 1140. In a suit to recover costs wrongfully collected by a tax collector, official stubs of tax receipts found in such collector's office, prepared under his supervision, showing the amount of costs collected, are admissible. — Typer & Knudson v. Tom, (Tex. Civ. App.), 132 S. W. 850. Registers of Births, Marriages and Deaths. The admission in evidence of registers of births, mar- riages and deaths is in most jurisdictions regulated by statute. — See 3 Wigmore Ev., § 1644. Oregon. A registry of birth, marriage, death or burial, kept pursuant to law, is evidence of the main fact and its date, and of any other facts which the law directed the officer to ascertain and record.— State v. McDonald, 55 Or. 419, 104 P. 967. Inquests of Lunacy or Death. An inquisition of lunacy, having for its object the ques- tion of commitment, is inadmissible to prove insanity. — Dewey v. Allgire, 37 Neb. 6, 9, 55 N. W. 276; Pfiueger v. State, 46 Neb. 493, 64 N. W. 1094; Maass v. Phillips. 10 Okl. 302, 61 P. 1057. The verdict of a coroner's Jury, that one whose life was insured committed suicide, Is not admissible to estab- lish that fact as a defense to an action on the policy. — Germania Life Ins. Co. v. Ross-Lewin, 24 Colo. 43, 51 P. 488; Cox v. Royal Tribe of Joseph, 42 Or. 365, 71 P. 73; Chambers v. Modern Woodmen of America, 18 S. D. 173, 99 N. W. 1107. 326 RELEVANCY OF ENTRY IN PUBLIC RECORD Records of Weather Bureau. The records of the United States weather bureau are admissible to show the state of the weather at a certain time and place: Oregon: Scott v. Astoria R. Co., 43 Or. 26, 72 P. 594 (records of daily rainfall made by witness and his prede- cessor) ; Willis v. Lance, 28 Or. 371, 43 P. 487 (agent of weather bureau testifying to velocity of wind from record made by automatic register). Washington: Anderson v. Hilker, 38 Wash. 632, 80 P. 848 (good or bad state of weather during a certain period). Census. Texas. An original census roll is not admissible to show that the persons therein named were alive at the time, to show what persons constitute the same family, and their ages, or any other matter necessary to show pedigree and heirship. — Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 665. Washington. The Federal census is competent evidence to prove the population of a county.- — State v. Neal, 25 Wash. 264, 65 P. 188. Certificates, Licenses and Receipts. Arkansas. A certificate of officers of a levee district as to canvass of an election and the record thereof by the board of directors, being records authorized in the line of their duties, are evidence of the facts therein stated.— Jonesboro, L. C. & E. R. Co. v. Board of Directors of St. Francis Levee Dist., 80 Ark. 316, 97 S. W. 281. Kansas. The certificate of protest of a check is compe- tent evidence of due presentment, and of demand and refusal to pay. — State v. McCormick, 57 Kan. 440, 46 P. 777. Nebraska. Court stenographer's certificate of transcript of notes taken at former trial admissible under statute making competent in evidence duly certified copies of records belonging to any public office. — Spillman v. Flynn, 19 Neb. 342, 27 N. W. 224. Nevada. A certificate of the vice-consul-general of the United States at London, under his official seal, is prima facie evidence of the execution of the deed. — Evans v. Lee, 11 Nev. 194. RELEVANCY OF ENTRY IN PUBLIC RECORD 327 North Dakota. Receipts are competent to prove a city- treasurer's shortage. — City of Dickinson v. White, 25 N. D. 523, 143 N. W. 754. Oregon. Certificate of marriage prescribed by statute to be given by the person solemnizing the marriage to each of the parties, admissible though not constituted evi- dence by direct act.— State v. Isenhart, 32 Or. 170, 52 P. 569. South Dakota. A duplicate receipt is inadmissible. — State v. Flagstad, 25 S. D. 337, 126 N. W. 585. Texas. It is only when an act is done by a constable in the performance of some official duty imposed on him by law that his return is sufficient or admissible evidence of his act. (Constable's certificate of serving duplicate of recorded mechanic's lien statement, inadmissible.) — Pool v. Wedemeyer, 56 Tex. 289, 299. Certified copies of maps from the general land office are admissible.— Houston v. Blythe, 60 Tex. 506. A certificate of registry of a cow purporting to have been made by the secretary of a certain association, re- ceived by a purchaser from the seller of the animal, is inadmissible to show the fact of such registry, without proof of its genuineness.— Austin & N. W. R. Co. v. Saun- ders, (Tex. Civ. App.), 26 S. W. 128. Where an original marriage license and return thereon Is offered as evidence to prove marriage in a prosecution for bigamy, it must appear that it is the original license properly authenticated. — Harris v. State, (Tex. Civ. App.), 161 S. W. 125. Utah. Certificate of the record of another state, with the name of the clerk signed by his deputy is admissible. — Steinke v. Graves, 16 Utah 293, 52 P. 386. Washington. A marriage license in which, by the laws of the state where issued, the age of the parties is re- quired to be inserted after special inquiry by the recorder, is admissible to show age of one of the applicants. — Armstrong v. Modern Woodmen of America, (Wash.), 160 P. 946. Legislative Journals. Arkansas. Senate journal admissible to show the terms of a report made by the state debt board to the legisla- 328 RELEVANCY OF ENTRY IN PUBLIC RECORD ture, the original report being lost. — Woodruff v. State, 61 Ark. 157, 32 S. W. 102. Colorado. Legislative journals, when printed and certi- fied, are by statute made prima facie evidence of the orig- inal records. — Rio Grande Sampling Co. v. Catlin, 40 Colo. 450, 94 P. 323. Records of Proceedings of Public Board or Municipality. Arizona. Minute entry of board of county supervisors ad- missible to show employment of sheriff to serve certain subpoenas. — Yavapai County v. O'Neill, 3 Ariz. 363, 29 P. 430. California. Record of proceedings of board of county supervisors is evidence of their acts. — People v. Bircham, 12 Cal. 50. Colorado. The official records of a city, properly attested and identified, are competent in behalf of the city upon the question of the passage of one of its ordinances. — City of Greeley v. Hamman, 17 Colo. 30, 28 P. 460. Idaho. The clerk of the county commissioners being re- quired to enter on the records an order calling a special meeting, the record is admissible after the loss of the original order. — Black Canyon Irr. Dist. v. Marple, 19 Ida. 176, 112 P. 766. PUBLIC DOCUMENTS. Oklahoma. Printed copy of final rolls of citizens and freedmen of the Five Civilized Tribes, prepared by the commission and approved by the Secretary of the In- terior, and printed under authority of Congress, admis- sible.— Lawless v. Raddis, 36 Okl. 616, 129 P. 711. South Dakota. Pamphlets issued under direction of Con- gress relative to drainage investigations and printed by the government admissible as a public document. — Yankton-Clay County Drainage Ditch, In re, 30 S. D. 79, 137 N. W. 608. Texas. Certified copies of classification of rates, etc., of railroad commission, admissible by statute. — Quanah, A. & P. Ry. Co. v. Drummond, (Tex. Civ. App.), 147 S. W. 728. RELEVANCY OF ENTRY IN PUBLIC RECORD 329 CORPORATE BOOKS AND RECORDS. California. Entries In stock book of corporation only presumptive evidence that a person therein named was a stockholder.— Mudgett v. Horrell, 33 Cal. 25. Minutes showing resolution reciting salary of president competent as an admission by the directors. — Smith v. Woodville, 66 Cal. 398, 5 P. 688. Records of business transaction of corporations for profit, required by statute to be kept are admissible In suits between strangers. — Hurwitz v. Gross, 5 Cal. App. 614, 91 P. 109. Minutes of corporation only prima facie evidence of its acts. — Hughes Mfg. & Lumber Co. v. Wilcox, 13 Cal. App. 22, 108 P. 871. Colorado. Stock books of a corporation are admissible to show who are stockholders. — Zang v. Wyant, 25 Colo. 551, 56 P. 565. Montana. Minutes of stockholders' meetings admissible when properly identified, but minutes consisting of sepa- rate sheets of paper pinner to the leaves of a record book, not sufficient. — McConnell v. Combination, 30 Mont. 239, 76 P. 194. Nebraska. Draft sold by a bank to one accused of bur- glary of the bank thereafter, admissible on identification by the cashier.— Morrison v. State, 88 Neb. 682, 130 N. W. 293. Washington. Corporation's books admissible to prove that entire capital stock had been subscribed. — State v. Superior Court, 44 Wash. 108, 87 P. 40. REGISTERS OF CONVEYANCES. Admissibility In General. In all the states there are statutes providing for the re- cording of certain Instruments, of conveyance and others, and declaring that such records, or, more usually certified copies of such records, shall be admitted in evidence, where the original Is lost or destroyed or beyond the power of the party to produce. [2 Wigmore Ev„ § 1225; 3 Id. § 1651.] "In every jurisdiction where the inquiry came before the courts, the conclusion was reached that the register was In- admissible on common-law principles as evidence of the exe- cution and contents of the recorded deed. In only a few of the earlier states was this result expressly provided for by 330 RELEVANCY OF ENTRY IN PUBLIC RECORD statute. But as time went on, and other States were formed, express statutory declarations became common; and now in almost every jurisdiction such provisions exist. For judicial rulings, then, the field. is now restricted chiefly to two classes of questions, — the kind of document thus provable and the regularity of the recording under the statutory require- ments." 3 Wigmore Ev., § 1651. California. Record of mining locations made by custom in recorder's office admissible. — Pralus v. Pacific Gold Co., 35 Cal. 30. Absence of the original must, by statute, be accounted for, before books of a recorder's office are admissible. — Brown v. Griffith, 70 Cal. 14, 11 P. 500. The absence of the original must first be accounted for. —Grant v. Oliver, 91 Cal. 158, 27 P. 596. The record of an instrument required by law to be re- corded is admissible without accounting for the original. —Adams v. Hopkins, 144 Cal. 19, 77 P. 712. Colorado. A married woman's deed acknowledged and certified according to statute is admissible in evidence. — Knight v. Lawrence, 19 Colo. 425, 36 P. 242. Where no statute provides for proof of execution of a deed to land in Colorado by acknowledgment taken with- out the state neither the deed itself nor its record is admissible.— Trowbridge v. Addoms, 23 Colo. 518, 48 P. 535. Kansas. The record in the office of the register of deeds of a patent is admissible in evidence without proof that the original is lost or destroyed, or not under the control of the party desiring to use it. — Bernstein v. Smith, 10 Kan. 60. Nebraska. The record of a deed may be shown without inquiry as to the original whenever the evidence as a whole fairly indicates that the original is not in the pos- session or under the control of the party offering such proof.— Staunchfield v. Jeutter, 4 Neb. (Unof.) 847, 96 N. W. 642. New Mexico. Record copy of lost deed, made more than thirty years before, admissible to show that original was in existence at the time and that it was executed by the party whose name is signed to it, though it would be inadmissible as an official record because statute not RELEVANCY OF ENTRY IN PUBLIC RECORD 331 complied with. — Union Land & Grazing Co. v. Arce, 21 N. IE. 115, 152 P. 1143. Oklahoma. An officer's certificate of the grantor's acknowledgment of the execution of a deed filed for record is a sufficient compliance with a requirement of attesta- tion by witnesses to the grantor's signature by mark. — Campbell v. Harsh, 31 Okl. 436, 122 P. 127. The records of a register of deeds, or certified copies thereof, may be received in evidence to prove an in- strument authorized to be recorded, when the original is not in the possession or under the control of the party desiring to use the same. — Dyal v. Norton, (Okl.), 150 P. 703. Oregon. By statute, the record of a duly recorded con- veyance may be read in evidence in any court of the state.— Stanley v. State, 15 Or. 508, 16 P. 174. South Dakota. The statute not requiring the register of deeds to keep a record of the persons to whom deeds were delivered after recording, a book containing such record is inadmissible when offered for such purpose through his successor. — Davis v. Davis, 24 S. D. 474, 124 N. W. 715. A sheriff's deed properly acknowledged and recorded is admissible in evidence, without further proof of execution. —Bliss v. Waterbury, 27 S. D. 429. 131 N. W. 731. Texas. Where it is proposed to prove the contents of a record, the record books of original entries are the best or primary evidence, though copies are in general admis- sible, on account of the inconvenience of producing in court the originals.— Peck v. Clark, 18 Tex. 239. Books of registry of deeds being but copies of originals, are inadmissible, except by statute, without accounting for non-production of the originals. — Peck v. Clark, 18 Tex. 239. The original record book is the best evidence of what it contains.— Falls Land & Cattle Co. v. Chisholm, 71 Tex. 523, 9 S. W. 479. Record of a deed or contract of sale, though unproved, filed and recorded in the handwriting of a deceased county clerk, admissible to show sale and conveyance. — Veatch v. Gray, 41 Tex. Civ. App. 145, 91 S. W. 324. 332 RELEVANCY OF ENTRY IN PUBLIC RECORD Mutilated records are admissible, if there is enough to show the execution of the instrument. — Ryle v. Davidson, (Tex. Civ. App.), 116 S. W. 823. Affidavit on record that affiant once had in his posses- sion a certain deed conveying a land certificate, and that the deed was lost, inadmissible. — White v. McCullough, 56 Tex. Civ. App. 383, 120 S. W. 1093. A duly certified copy of a deed recorded more than thirty years before the trial, is admissible in evidence, though the deed was alleged to have been a forgery. — Rudolph v. Tinsley, (Tex. Civ. App.), 143 S. W. 209. The statute of Texas which authorizes the introduction in evidence of a certified copy of a deed applies only to deeds properly recorded in Texas and not to copies of deeds recorded in other states conveying lands in Texas. — William M. Rice Institute v. Freeman, (Tex. Civ. App.), 145 S. W. 6S8. Only of such documents as are required or permitted by law to be filed in a public office, so as to constitute them archives or records, can certified copies be received in evidence. (Certified copy of contract of reinsurance of surety company acting as surety for an insurance com- pany, filed with insurance commissioner, inadmissible.) — Southwestern Surety Ins. Co. v. Anderson, (Tex.), 155 S. W. 1176. CERTIFICATES OF ACKNOWLEDGMENT. A valid acknowledgment permits a deed to be intro- duced in evidence, without further proof: California: Landers v. Bolton. 26 Cal. 393, 405. Colorado: Knight v. Lawrence, 19 Colo. 425, 36 P. 242 (married woman's deed). Nebraska: Buck v. Gage, 27 Neb. 306, 43 N. W. 110 (date on certificate of acknowledgment, earlier than that on deed, governs, and carries the execution to the later date, and admits) ; Linton v. Cooper, 53 Neb. 400, 73 N. W. 731); Brown v. Collins, (Neb.), 96 N. W. 173. Washington: Gardner v. Port Blakely M. Co., 8 Wash. 1, 35 P. 402 (original, properly acknowledged, admissible, though record fails to show any acknowledgment). A certificate of acknowledgment made by an officer au- thorized to take acknowledgments is only prima facie evi- RELEVANCY OF ENTRY IN PUBLIC RECORD 333 dence of the execution of the instrument, and, while it is entitled to a strong presumption in favor of its truth, it may be impeached by parol testimony: Arkansas: Petty v. Grisard, 45 Ark. 117. California: Le Mesnager v. Hamilton, 101 Cal. 532, 35 P. 1054 (married woman's purported acknowledgment; never appeared before notary). Kansas: People's Gas Co. v. Fletcher, 81 Kan. 76, 105 P. 34 (wife's acknowledgment; • her denial of acknowledg- ment). Texas: Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796 (wife in fact never appeared before notary). California. The certificate of a notary public or U. S. consul of an acknowledgment of a deed is prima facie evidence of official character. — Mott v. Smith, 16 Cal. 534, 552. Colorado. A conveyance is valid between the parties without acknowledgment. — Holladay v. Dailey, 1 Colo. 460. Acknowledgments taken before notaries out of the state held sufficient.— Quimby v. Boyd, 8 Colo. 194, 6 P. 462. Nebraska. The date on certificate of acknowledgment prevails over a later date named as the date of execution in the deed, and entitles the deed to be admitted. — Buck v. Gage, 27 Neb. 306, 43 N. W. 110. Oklahoma. The fact that the acknowledgment is dated earlier than the deed does not render the deed inadmis- sible where the conflict in dates is apparently a clerical error. — Mosier v. Momsen, 13 Okl. 41, 74 P. 905. Oregon. The record of a deed duly acknowledged is admissible to show delivery. — Series v. Series, 35 Or. 289, 67 P. 634. Texas. The signature of the notary taking an acknowl- edgment is necessary in order to authenticate an instru- ment so as to make it admissible in evidence. — Andrews v. Marshall, 26 Tex. 212. Proper Acknowledgment and Registration. California. Certificate of notary to acknowledgment of deed made thirteen years after its execution permits the deed to be read in evidence and recorded. — Clark v. Troy, 20 Cal. 219, 223. 334 RELEVANCY OF ENTRY IN PUBLIC RECORD Colorado. A copy of the record of a deed not properly acknowledged is Inadmissible. — Trowbridge v. Addoms, 23 Colo. 518, 48 P. 535. Idaho. The certificate of acknowledgment to an instru- ment made by the officer constitutes his official statement and declaration, made at the time of the act, as to the truth and accuracy thereof, and is more likely to be true and correct than the memory of such person in years afterward.— First Nat. Bank V. Glenn, 10 Ida. 224, 77 P. 623. Kansas. The acknowledgment of a deed is prima facie evidence of its execution, and a deed properly acknowl- edged may be given in evidence without further proof, although its execution is denied under oath in the answer. — Wilkins v. Moore, 20 Kan. 538. Nebraska. The function of an acknowledgment is two- fold — to authorize the deed to be given in evidence with- out further proof of its execution, and to entitle it to be recorded. The acknowledgment is not part of the deed itself.— Burbank v. Ellis, 7 Neb. 156. A valid acknowledgment permits a conveyance to be re- ceived in evidence without further proof, but one not acknowledged may be received, if its execution and de- livery be otherwise proved. — Linton v. Cooper, 53 Neb. 400, 73 N. W. 731. Nevada. A deed made prior to the act of November 5, 1861, concerning conveyances, but acknowledged as pro- vided therein, is admissible in evidence, such acknowledg- ment being competent prima facie proof of its execution. — Sharon v. Davidson, 4 Nev. 416. North Dakota. The registry acts changed the common law rule as to proof of execution of duly acknowledged instruments. — Grandin v. Emmons, 10 N. D. 223, 86 N. W. 723. A written assignment of a real estate mortgage, the execution of which is acknowledged before a notary pub- lic of another state, is entitled to be read in evidence under the provisions of section 5696, Rev. Codes, without further proof, when the certificate of acknowledgment attached thereto is authenticated by the signature and official seal of such notary. It is not necessary to have attached RELEVANCY OF ENTRY IN PUBLIC RECORD 335 thereto the certificate of an officer of higher rank to the official character and signature of such notary. — Grandin v. Emmons, 10 N. D. 223, 86 N. W. 723. Copy of a deed of assignment for the benefit of cred- itors, certified to be a copy by a court commissioner of a circuit court of Wisconsin, and containing no original acknowledgment by the grantor therein named, is not entitled to record in the office of the register of deeds in the county in this state wherein the lands are situated which are claimed to be conveyed by such assignment. — Goss v. Herman, 20 N. D. 295, 127 N. W. 78. Oklahoma. The acknowledgment of a deed is prima facie evidence of its execution, and a deed properly acknowledged may be given In evidence without further proof, although its execution is denied under oath. — Dyal v. Norton, (Okl.), 150 P. 703. Oregon. Offer of deed in evidence is sufficient to carry the notary's certificate with it. — Laurent v. Lanning, 32 Or. 11, 51 P. 80. Texas. Under statute providing that after a deed has been recorded for ten years informalities in acknowledg- ment shall be no objection to its admission in evidence, such a deed need not be acknowledged at all in order for it or its record to be admissible. — Bledsoe v. Haney, 37 Tex. Civ. App. 285, 122 S. W. 455. Utah. Statute making deeds recorded before a certain date admissible, regardless of defects, applies to suit brought before the act went into effect, but tried there- after.— Tate v. Rose, 35 Utah 229, 99 P. 1003. Washington. The proper acknowledgment of a deed en- titles the original, or a certified copy of the record there- of to be read in evidence without further proof of execu- tion.— Gardner v. Port Blakeley Mill Co.. S Wash. 1, 35 P. 402; Garneau v. Port Blakeley Mill Co., 8 Wash. 467, 36 P. 463. Wyoming. A certificate of acknowledgment is to receive a liberal construction, and, where an omission, such as the year in which it was acknowledged, can be supplied by reasonable and fair construction of the whole instru- ment, the certificate will be sufficient. — Boswell v. First Nat. Bank, 16 Wyo. 161, 92 P. 624. 336 RELEVANCY OF ENTRY IN PUBLIC RECORD Defective Acknowledgments. Where the instrument is not entitled to record by rea- son of not being properly acknowledged or otherwise, or is not properly recorded, the record or a copy thereof is not admissible: Arkansas: Trammel v. Thurmond, 17 Ark. 203~ Worsham v. Freeman, 34 Ark. 55 (absence of notary's seal). California: Hastings v. Vaughn, 5 Cal. 315 (no seal); Emeric v. Alvarado, 90 Cal. 444, 27 P. 356 (failure of acknowledging officer to show authority or venue). Kansas: Meskimen v. Day, 35 Kan. 46, 10 P. 14 (absence of seal). South Dakota: Price & Baker Co. v. Madison, 17 S. D. 247, 95 N. W. 933 (no acknowledgment). Texas: Fordtran v. Perry, (Tex. Civ. App.), 60 S. W. 1000 (same). See 3 Wigmore Ev., § 1651. California. An alleged duplicate of an instrument with no acknowledgment shown thereon is inadmissible under the statute relating to the admission of instruments con- veying real property. — Fresno Canal & Irr. Co. v. Dun- bar, 80 Cal. 530, 22 P. 275. Colorado. A defective acknowledgment is no proof of execution, and unless the execution is otherwise proven, the deed is inadmissible. — McGinnis v. Egbert, 8 Colo. 41, 5 P. 652. An acknowledgment unauthorized by law prohibits the admission of a deed in evidence. — Trowbridge v. Addoms, 23 Colo. 518, 48 P. 535. Oklahoma. The evidence to impeach a certificate of acknowledgment should be clear, cogent and convincing, and such as produces a conviction amounting to a moral certainty that the certificate is false. — Dyal v. Norton, (Okl.), 150 P. 703. CHURCH REGISTERS. Kansas. A church register of baptisms and burials is not admissible to prove the identity of the child baptized with a child buried six years thereafter, without further proof of the identity, the names being substantially different. — Meconce v. Mower, 37 Kan. 298, 15 P. 155. RELEVANCY OF ENTRY IN PUBLIC RECORD 337 New Mexico. A certificate of baptism made by a priest is inadmissible to prove the age of the person baptized. — Berry v. Hull, 6 N. M. 643, 30 P. 936. Texas. A church registry is admissible to show who was the person mentioned in a certain entry therein, though her name was not stated in full. — Overall v. Armstrong, (Tex. Civ. App.), 25 S. W. 440. UNAUTHORIZED ACTS AND RECORDS. Colorado. Reports of committees appointed by the court in pursuance of statute, to examine the books of the treas- urer, are inadmissible to prove the facts recited. — McClure v. La Plata County, 19 Colo. 122, 34 P. 763. A memorandum made in a book by a water commis- sioner from reports of his deputies as to the amount of water in a stream and the amount defendant was entitled to divert is inadmissible, the statute not requiring him to keep such book. — Big Thompson & Platte River Ditch Co. v. Mayne, 36 Colo. 355, 91 P. 44. Kansas. Verified report of examination made quarterly of county treasurer's office made by probate judge and two examiners appointed to assist him, under statute, inad- missible. — State v. Krause, 58 Kan. 651, 50 P. 882. Nebraska. Certificate of death, signed by physician, not under oath, required by ordinance to be deposited with secretary of board of health as prerequisite to obtaining burial permit, inadmissible. — Sovereign Camp of Wood- men of the World v. Grandon, 64 Neb. 39, 89 N. W. 448. South Dakota. Monthly summary of fees received by a register of deeds, made up from a book containing the separate items, inadmissible. — Putnam v. Custer County, 25 S. D. 542, 127 N. W. 641. Where there is no statutory authority for the making of a record by a public officer, a record is incompetent and inadmissible. (Filing of affidavit of publication of no- tice of maturity of tax sale certificate.) — McKinnon v, Fuller, 33 S. D. 582, 146 N. W. 910. 338 STATEMENTS IN HISTORIES, MAPS, ETC. Article 35. relevancy of statements in works of history, maps, charts and plans. Statements as to matters of general public his- tory made in accredited historical books are deemed to be relevant when the occurrence of any- such matter is in issue or is or is deemed to be relevant to the issue; but statements in such works as to private rights or customs are deemed to be irrelevant. 3 [Submitted] Statements of facts in issue or rel- evant or deemed to be relevant to the issue made in published maps or charts generally offered for public sale as to matters of public notoriety, such as the relative position of towns and countries, and such as are usually represented or stated in such maps or charts, are themselves deemed to be relevant facts; 1 but such statements are irrele- vant if they relate to matters of private concern, 1 In R. v. Orton, maps of Australia were given in evidence to show the situation of various places at which the defend- ant said he had lived. (Maps, plans and charts are frequent- ly used, by way of illustration or explanation of collateral matters, and, if ancient, as evidence. 1 Greenl. Ev., § 145, n. The proposed extension of the law to maps offered for public sale, such as the public and judges resort to for information, seems unobjectionable). Entries in books of account made by a clerk are admissible against the principal. Willin's Ins. Co. v. Frothingham, 122 Mass. 391; Anderson v. Edwards, 123 Mass. 273; though not conclusive, Holmes v. Hunt, 122 Mass. 505. See also Parker v. Nickerson, 137 Mass. 487; Fol- som v. Grant, 136 Mass. 494; Floyd v. Tewksbury, 129 Mass. 362. 3 See cases in 2 Ph. Ev. 155-156; (1 Greenl. Ev., § 6 and notes). STATEMENTS IN HISTORIES, MAPS, ETC. 339 or matters not likely to be accurately stated in such documents. 2 LEARNED TREATISES. In General. "More than one reason has been advanced for prohibiting the use of learned treatises in evidence; but the only legiti- mate one, and the one generally pointed out and relied upon in judicial opinion, is that such an offer of evidence purports to employ testimonially a statement made out of court by a person not subjected to cross-examination, i. e., purports to violate the fundamental doctrine of the Hearsay rule." 3 Wigmore Ev., § 1690. Several states have passed statutes declaring historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, to be prima facie evidence of facts of general notoriety and interest. (3 Wigmore Ev., § 1693.) Nebraska. "Catechism of a Locomotive," admitted. — Sioux City & P. R. Co. v. Finlayson, 16 Neb. 587, 20 N. W. 860. Texas. Books on parliamentary rules inadmissible to show whether proceedings in a convention were taken according to parliamentary law. — Cranfill v. Hayden, 22 Tex. Civ. App. 656, 55 S. W. 805. Historical Works. Oregon. A historical work not admissible to show the unwritten law as to marriage customs in China. — State v. Moy Looke, 7 Or. 54. Utah. Works of history, church records and journals are admissible to show the meaning of "sealed" or "sealing ordinance" as constituting a marriage within the Mormon church.— Hilton v. Roylance, 25 Utah 129, 69 P. 660. Medical Works. Medical works are not admissible in evidence to prove facts or opinions therein expressed: 2 E. g., a line in a tithe commutation map purporting to denote the boundaries of A's property is irrelevant in a ques- tion between A ;uid B as to the position of the boundaries. Wilberforce v. Hearfield, L. R. 5 Ch. Div. 709, and see Ham- mond v. , 10 Ex. 390. 340 STATEMENTS IN HISTORIES, MAPS, ETC. California: People v. Wheeler, 60 Cal. 582 (district at- torney reading to jury) ; People v. Bowers, 1 Cal. App. 501, 82 P. 553 (attorney for plaintiff asking "Is this a cor- rect statement, Dr.?" and proceeding to read); Fisher v. Southern Pac. R. Co., 89 Cal. 399, 26 P. 894 (on cross- examination, reading statement from medical works and asking witness if he agrees with them, for the purpose of sustaining counsel's theory of the case, and not merely to involve witness in contradictions) ; Lilley v. Parkinson, 91 Cal. 655, 27 P. 1091 (same). Colorado: Denver City Tramway Co. v. Gawley, 23 Colo. App. 332, 129 P. 258. South Dakota: Brady v. Shirley, 14 S. D. 447, 85 N. W. 1002 (book on veterinary science). Texas: Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1002 (counsel attempting to read to jury book on insanity) ; Fowler v. Lewis, 25 Tex. Supp. 380 (treatise on horses); Boehringer v. A. B. Richards Medicine Co., 9 Tex. Civ. App. 284, 29 S. W. 508 (U. S. Dispensatory). On cross-examination to test knowledge of witness or involve in contradiction, medical works may be read. — Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Clukey v. Seattle Elec. Co., 27 Wash. 70, 67 P. 379. California. "Facts of general notoriety and interest," under the statute, are facts of a public nature, either at home or abroad, not existing in the memory of men as contradistinguished from facts of a private nature exist- ing within the knowledge of living men, and as to which they may be examined as witnesses. (Medical work not admitted in evidence.) — Gallagher v. Market St. R. Co., 67 Cal. 16, 6 P. 869. Medical treatises are not admissible in evidence, whether proved to be standard works or not, except to discredit a witness who bases his testimony upon them, and a physician may not be asked to name the circum- stances of the cases he had read where violence accom- panied hysterical mania, as the examination would be in effect the introduction of medical works in evidence. — People v. Goldenson, 76 Cal. 328, 19 P. 161. STATEMENTS IN HISTORIES, MAPS, ETC. 341 Idaho. Where an expert has referred to a particular medical work to sustain his opinion, such work, but no other, may be admitted to contradict him. — Osborn v. Cary, 28 Ida. 89, 152 P. 473. Kansas. Physician who has given his own opinion may state that it was formed from the study of books and men, though a book itself is not admissible. — State v. Baldwin, 36 Kan. 1, 12 P. 318. Nebraska. Text-books on surgery, though of standard authority, are not competent evidence, except as to mat- ters of general notoriety and interest, under the Code. — Van Skike v. Potter, 53 Neb. 28, 73 N. W. 295. Texas. "Do not all the authorities lay it down as a rule that operations for injuries of this kind should not be per- formed during the period of reaction from shock?" inad- missible, when asked on cross-examination of a witness who had not referred to any book. — Galveston, H. & S. A. Ry. Co. v. Hanway, (Tex. Civ. App.), 57 S. W. 695. Medical works are not admissible in evidence to prove the opinions therein, either directly or by quoting from them and asking an expert witness if he agrees with the doctrines there laid down, and, if not, in what respect he differs.— Gulf, C. & S. F. Ry. Co. v. Farmer, (Tex. Civ. App.) ( 108 S. W. 729. PRIVATE MAPS. California. A private survey is no evidence of the facts it purports to contain. — Rose v. Davis, 11 Cal. 133. Ancient map admitted, surveyor and draughtsman be- ing dead. — Morcom v. Baiersky, (Cal. App.), 117 P. 560. Montana. Private plat admissible to aid in identifying property.— Drew v. City of Butte, 44 Mont. 124, 119 P. 279. Texas. Report and plat of surveyors, made in suit to which intervenors were not parties, inadmissible against them.— Jordan v. Young, (Tex. Civ. App.), 56 S. W. 762. Plat of land admitted, made by a surveyor from field notes, in deed of clerk of probate court partitioning land. — Unknown Heirs of Criswell v. Robbins, (Tex. Civ. App.), 152 S. W. 210. Market Reports. Standard price lists and market reports, shown to be in general circulation and relied on by the commercial 342 STATEMENTS IN HISTORIES, MAPS, ETC. world and by those engaged in trade, are admissible as evidence of market value of articles of trade: Arkansas: St. Louis & S. P. R. Co. v. Pearce, 82 Ark. 353, 101 S. W. 760 (in trade journal printed and published at place where the stock was sold). California: Vogt v. Cope, 66 Cal. 31, 4 P. 915 (it must be shown how they were obtained). Kansas: Ray v. Missouri, K. & T. Ry. Co., 90 Kan. 244, 133 P. 847 (to show loss in price from delay in trans- portation). Texas: Houston & T. C. Ry. Co. v. Williams, (Tex. Civ. App.), 31 S. W. 556 (may be used as witness's only source of information) ; St. Louis, I. M. & S. R. Co. v. Gunter, 39 Tex. Civ. App. 129, 86 S. W. 938 (market reports in Live Stock Reporter) ; Bullard v. Stewart, 46 Tex. Civ. App. 49, 102 S. W. 174 (Daily Live Stock Reporter, printed at place of purchase of mules) ; St. Louis & S. F. R. Co. v. May, 53 Tex. Civ. App. 257, 115 S. W. 900 (to show that a market existed) ; Houston Packing Co. v. Griffith, (Tex. Civ. App.), 144 S. W. 1139 (persons who derived knowledge from market quotations may testify as to knowledge so obtained). Colorado. In the absence of better evidence the prices published in a commercial journal are admissible as evi- dence of prices current, but where such evidence is ad- missible the sources of information, or the mode in which such prices are ascertained, must first be shown to ren- der it competent.— Willard v. Mellor, 19 Colo. 534, 36 P. 148. Nebraska. Market reports are evidence of value. — Chi- cago, B. & Q. R. Co. v. Todd, 74 Neb. 712, 105 N. W. 83, Texas. Knowledge of prices gained by market reports admissible. — Galveston, H. & S. A. Ry. Co. v. Karrer, (Tex. Civ. App.), 109 S. W. 440. MORTALITY TABLES. Mortality tables are admissible to show the probable duration of life of one killed by an accident, or so injured that his earning capacity is permanently impaired: Arkansas: Arkansas M. R. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550 (though plaintiff was not an insurable risk). California: Keast v. Santa Ysabel G. M. Co., 136 Cal. STATEMENTS IN HISTORIES, MAPS, ETC. 343 256, 68 P. 771 (without preliminary proof of authentica- tion and standard quality) ; Cusick v. Boyne, 1 Cal. App. 643, 82 P. 985. Colorado: Rio Grande Southern R. Co. v. Nichols, 52 Colo. 300, 123 P. 318. Montana: Gilman v. Dart Hardware Co., 42 Mont. 96, 111 P. 550. Nebraska: City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41 (Carlisle Tables) ; Friend v. Ingersoll, 39 Neb. 717, 58 N. W. 281 (same); Acken v. Tinglehoff, 83 Neb. 296, 119 N. W. 456; Broz v. Omaha Maternity and Gen- eral Hospital Ass'n, 96 Neb. 648, 148 N. W. 575. Oklahoma: City of Shawnee v. Slankard, 29 Okl. 133, 116 P. 803. South Dakota: Whaley v. Vidal, 27 S. D. 642, 132 N. W. 248. Texas: Gulf, C. & S. F. Ry. Co. v. Stewart, (Tex. Civ. App.), 164 S. W. 1059. In an action for damages for personal injuries, where such injuries resulted in the death of the party injured, or are shown to be permanent, the Carlisle table of ex- pectancy of life is competent and admissible in evidence, as bearing on and tending to prove the expectancy of life, but not conclusive of the question, and is to be received and considered by the jury as any other evidence, and subject to the same rules as to weight and sufficiency as other testimony; and its statements as to expected duration of life may be varied, strengthened, weakened, or entirely destroyed, by other competent evidence on the question of the expected continuance of life of the injured party, such as testimony pertaining to the health of the party at the time of the injury. — City of Friend v. Ingersoll. (Neb.), 58 N. W. 281; San Bois Coal Co. v. Resetz, 43 Okl. 384, 143 P. 46. Arkansas. Mortality tables shown to be in general use by life insurance companies doing business in the state are admissible to prove probable expectancy or duration of life, though not authenticated. — St. Louis, I. M. & S. Ry. Co. v. Trotter, 101 Ark. 183, 142 S. W. 189. Nebraska. Evidence of the probable duration of life as shown by mortality tables is modified by proof of ill 344 STATEMENTS IN HISTORIES, MAPS, ETC. health or hazardous occupation. — Broz v. Omaha Maternity & General Hospital Ass'n, 96 Neb. 648, 148 N. W. 575. In an action for injuries not resulting in death, where plaintiff's earning capacity is permanently impaired, ap- proved mortality tables are admissible to show the ex- pected duration of life. — Jones v. Great Western R. Co., 97 Neb. 306, 149 N. W. 813; Henry v. City of Lincoln, 97 Neb. 865, 151 N. W. 933. Oklahoma. Mortality tables are admissible, though they do not apply to a man of decedent's occupation. (Shot firer in a mine.) — San Bois Coal Co. v. Resetz, 43 Okl. 384, 143 P. 46. MERCANTILE REPORTS. Texas. Rules of a Master Car Builders' Ass'n admissible to show financial standing of a bank, where they were made by publisher's agents for its own subscribers, of whom plaintiff was not one. — Baker v. Asche, 80 Tex. 356, 16 S. W. 36. Reports of a mercantile agency are not admissible to prove a person a member of a partnership, unless the data upon which the reports were based were furnished by the party to be charged or by someone with his acquiescence. —Frank v. J. S. Brown Hdwe. Co., 10 Tex. Civ. App. 430, 31 S. W. 64. SUNDRY TABLES AND DOCUMENTS. Texas. Rules of a Master Car Builders' Ass'n admissible to show proper construction of a contract. — Leas v. Con- tinental Fruit Express, 45 Tex. Civ. App. 162, 99 S. W. 859. Railway time tables contained in a "Railway and Hotel Guide," recognized by railway and hotel men as being authentic, are admissible to show schedule of a certain train upon which plaintiff would have gone if she had received a telegram in time. — Western Union Tel. Co. v. Gilliland, (Tex. Civ. App.), 130 S. W. 212. Washington. U. S. tide tables prepared for use of nav- igators in Puget Sound, admissible.— Cherry Point Fish Co. v. Nelson, 25 Wash. 558, 66 P. 55. Printed rules of -the police department delivered to policemen, are competent evidence, though not certified, ENTRIES IN BANKERS' BOOKS 345 as to the right of the board to suspend the officer, and binding upon the board. — Bringgold v. City of Spokane, 27 Wash. 202, 67 P. 612. Article 36. entries in bankers' books. A copy of any entry in a banker's book must in all legal proceedings be received as prima facie evidence of such entry, and of the matters, tran- sactions and accounts therein recorded [even in favor of a party to a cause producing a copy of an entry in the book of his own bank 3 ]. Such copies may be given in evidence only on the condition stated in Article 71. (f ) The expression, "bankers' books," includes ledgers, day books, cash books, account books and all other books used in the ordinary business of the bank. The word "bank" is restricted to banks which have duly made a return to the Commissioners of Inland Revenue, Savings banks certified under the Act relating to savings banks, and Postoffice savings banks. The fact that any bank has duly made a return to the Commissioners of Inland Revenue may be proved in any legal proceeding by the production of a copy of its return, verified by the affidavit of a partner or officer of the bank, or by the produc- tion of a copy of a newspaper purporting to con- tain a copy of such return published by the Com- missioners of Inland Revenue. 3 Harding v. Williams, L. R. 14 Ch. Div. 197. 346 JUDGE'S POWERS AS TO BANKERS' BOOKS The fact that any such savings bank is certified under the Act relating to savings banks may be proved by an office or examined copy of its cer- tificate. The fact that any such bank is a post- office savings bank may be proved by a certificate purporting to be under the hand of Her Majesty's Postmaster General or one of the Secretaries of the Postoffice. 1 Article 37. bankers not compellable to produce theik books. A bank or officer of a bank is not in any legal proceeding to which the bank is not a party, com- pellable to produce any banker's book, or to ap- pear as a witness to prove the matters, transac- tions and accounts therein recorded unless by or- der of a Judge of the High Court made for special cause [or by a County Court Judge in respect of actions in his own court.] 2 Article 38. judge's powers as to bankers' books. On the application of any party to a legal pro- ceeding, a Court or Judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the pur- poses of such proceedings. Such order may be made either with or without summoning 3 the bank, or any other party, and must be served on the bank three clear days [exclusive of Sundays and Bank holidays] before it is to be obeyed, un- less the Court otherwise directs. 1 42 & 43 Vict., c. 2. 2 42 & 43 Vict., c. 11. 3 "With or without summoning" are the words of the stat- ute, which seems an odd expression. JUDGMENTS 347 Article 39.* "judgment." The word "judgment" in Articles 40-47 means any final judgment, order, or decree of any court. The provisions of Articles 40-45, both inclusive, are all subject to the provisions of Article 46. Article 40. am. judgments conclusive proof of their legax effect. All judgments whatever are conclusive proof as against all persons of the existence of that state of things which they actually effect when the existence of the state of things so effected is a fact in issue or is or is deemed to be relevant to the issue. The existence of the judgment ef- fecting it may be proved in the manner prescribed in Part II. Illustrations. (a) The question is, whether A has been damaged by the negligence of his servant B in injuring C's horse. A judgment in an action, in which C recovered damages against A, is conclusive proof as against B, that C did re- cover damages against A in that action. — 1 (b) The question is. whether A, a ship owner, is entitled to recover as for a loss by capture against B an underwriter. A judgment of a competent French prize court condemning the ship and cargo as prize, is conclusive proof that the ship and cargo were lost to A by capture. — 2 (c) The question is, whether A can recover damages from B for a malicious prosecution. The judgment of a court by which A was acquitted Is con- clusive proof that A was acquitted by that court. — 3 * See Note at end of Article 47. 348 JUDGMENTS (d) A, as executor to B, sues C for a debt due from C to B. The grant of probate to A is conclusive proof as against C, that A is B's executor. — 4 (e) A is deprived of his living by the sentence of an ec- clesiastical court. The sentence is conclusive proof of the fact of deprivation in all cases. — 5 (f) A and B are divorced a vinculo matrimonii by a sen- tence of the divorce court. The sentence is conclusive proof of the divorce In all cases. — 6 (g) [R was adjudged disqualified from holding office be- cause not a citizen, in a contest brought by D. R could not, in an action for usurpation, introduce evidence that his mother was married to a citizen while he was yet a minor.] — 7 LEGAL EFFECT OF JUDGMENT. A judgment is always admissible as proof of its ren- dition or existence when that fact is relevant. — Pico v. Webster, 14 Cal. 202, 73 Am. Dec. 647; McCamant v. Roberts, 66 Tex. 260, 1 S. W. 260. Arkansas. A determination in a bill of review that plain- tiffs, as attorneys for defendants, were not negligent in not finding out that a copy of a judgment offered in evidence in a certain suit in which plaintiffs represented defendants was void as being rendered in vacation, is conclusive of the question of negligence in an action for services. — Boynton v. Brown & Mathes, 103 Ark. 513, 145 S. W. 242. California. Letters of administration upon the estate of a person who is not dead are void. — Stevenson v. Superior Court, 62 Cal. 60. A judgment against a stockholder in a suit by a cor- poration to enforce his liability for unpaid stock is con- clusive as to such liability in an action by a creditor of 1 Green v. New River Company, 4 T. R. 590. 2 Involved in Geyer v. Aguilar, 7 T. R. 681. 3 Leggatt v. Tollervey, 14 Ex. 301; and see Caddy v. Bar- low, 1 Man. & Ry. 277. 4 Allen v. Dundas, 37 R. 125-130. In this case the will to which probate had been obtained was forged. 5 Judgment of Lord Holt in Philips v. Bury, 2 T. R. 3 46, 351. 6 Assumed in Needham v. Bremner, L. R. 1 C. P. 582. 7 [People v. Rodgers, 118 Cal. 393, 46 P. 740.] JUDGMENTS 349 the corporation.— Welch v. Sargent, 127 Cal. 72, 59 P. 319. A judgment exonerating an agent from negligence may be availed of by the principal. — Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875. On an issue as to whether defendant in replevin had taken the property under a writ of attachment, the judg- ment roll in the attachment suit is admissible in evidence though plaintiff was not a party thereto and the judgment did not conclude him. — Watrous v. Cunningham, 71 Cal. 30, 11 P. 811. A decree annulling a marriage is a judicial determina- tion of the status of the parties thereto. — Eickhoff's Es- tate, In re, 101 Cal. 600, 36 P. 11. A judgment in an action by a corporation for unpaid balance on a subscription to stock is conclusive in an action by creditors of the corporation to enforce such stockholder's liability.— Welch v. Sargent, 127 Cal. 72, 59 P. 319. The pleadings and final judgment in an action claimed to have been maliciously brought establish the fact of final judgment only, and not the want of probable cause. — McKenna v. Heinlen, 128 Cal. 17, 60 P. 668. A decree in ejectment, where defendants were found to be the owners and the deed under which plaintiff claimed to be in effect a mortgage, is conclusive as to the fact of mortgage in a suit to foreclose. — Meeker v. Sinis- ter, 4 Cal. App. 294, 87 P. 1102. Kansas. Final judgment in attachment, followed by sale and sheriff's deed, is sufficient to divest the title of the debtor, and not open to attack by one who had ob- tained no lien until after the confirmation of the sale. — Harrison v. Shaffer, 60 Kan. 176, 55 P. 881. A decree in habeas corpus, where the direct issue was, whether a certain adoption was illegal, declaring that the applicant was the mother of the child, is conclusive as to its motherhood, where the decree could be sustained only on the theory that applicant was its mother. — Bleak- ley v. Bleakley, 72 Kan. 462, 89 P. 906. Nebraska. The finding and judgment of a court granting a woman a decree of divorce on the ground of extreme cruelty, are not competent evidence to prove that she was 350 JUDGMENTS justified in living apart from him, in an action brought by a third person against the husband for boarding and lodging the wife.— Belknap v. Stewart, 38 Neb. 304, 56 N. W. 881. A judgment in favor of a county against its clerk for fees improperly retained by him as such officer may be introduced in evidence in an action for libel brought by such clerk against a resident taxpayer of the county, for the purpose of proving the fact of such shortage. — Sheibley v. Fales, 81 Neb. 795, 116 N. W. 1035. The decree in a suit by an owner of land in an irriga- tion district to enjoin collection of taxes and to cancel bonds issued by the district, determining the validity of the bonds, is conclusive, and estops another landowner from raising the same question. — Orcutt v. McGinley, 96 Neb. 619, 14S N. W. 586. New Mexico. Where, in quo warranto, defendant was adjudged to have no title to an office, the judgment is con- clusive in an action brought by the rightful holder for the fees received by defendant while he was unlawfully in the incumbency of the office.— Sandoval v. Allbright, 14 N. M. 345, 93 P. 717. North Dakota. A judgment regularly entered by a court of competent jurisdiction, in the absence of fraud or collusion, is conclusive evidence of the debt and amount in an action to try title by the judgment creditor against an alleged fraudulent grantee of the debtor. — Salemonson v. Thompson, 13 N. D. 182, 101 N. W. 320. Oregon. In an action for false representations as to land conveyed by a third party to plaintiffs, the judgment roll in a former action is competent evidence that the third party had no title, though the present defendants were not parties.— Cobb v. Peters, 68 Or. 14, 136 P. 656. A decree setting aside a deed between defendants as fraudulently given is not competent to prove a want of consideration as between defendants, who made no claims therein adverse to each other. — Crow v. Crow, 70 Or. 534, 139 P. 851. Texas. Judgments are always admissible to show that a certain judgment was pronounced, even as against strangers.— McCamant v. Roberts, 66 Tex. 260, 1 S. W. 260. JUDGMENTS 351 One who purchases property subject to a landlord's lien for rent of the premises upon which it was situated cannot dispute the amount of the judgment recovered by the landlord upon which a distress warrant was issued. — Lehman v. Stone, (Tex. App.), 16 S. W. 784. Where plaintiff bought machinery worthless for the purpose for which it was sold, and sued to recover cash paid as part of the purchase price, and to recover a sum represented by the amount of a judgment recovered against him by an innocent purchaser of notes given for the balance of the purchase price, it is no objection to the introduction of the judgment in evidence that defend- ant was not a party to it. — Southern Gas & Gasoline En- gine Co. v. Peveto, (Tex. Civ. App.), 150 S. W. 279. Utah. A judgment rendered by a court having jurisdic- tion of subject matter and of the parties is, in the absence of a plea and proof that it was obtained by fraud or col- lusion, conclusive as to the relation of debtor and creditor, and the amount of the indebtedness, not only as between the parties, but also as to third parties. (Action to sub- ject property of a corporation selling out to another to payment of plaintiff's judgment.) — Cooper v. Utah Light & R. Co., 35 Utah 578, 102 P. 202. A judgment is conclusive as to the relation of debtor and creditor and the amount of indebtedness, not only be- tween the parties but also as to third persons, in a subse- quent suit where such relation and indebtedness are called in question. — Welch v. Utah Ass'n of Credit Men, 40 Utah 519, 121 P. 974. Washington. Final judgment for defendant in an attach- ment suit was conclusive evidence that the attachment was wrongful, in a suit for damages on account thereof. — McGill v. W. P. Fuller & Co., 4* Wash. 615, 88 P. 1038. A purchaser of land suing the vendor for false repre- sentations as to title may offer in evidence a judgment in a suit brought against him for breach of contract by a contractor to whom he had a contract for a building thereon, to show the fact that a judgment had been ren- dered and for what purpose the suit was brought, but not to show the grounds upon which recovery was had. — Curtley v. Security Savings Society. If, Wash. 50, 89 P. 180. 352 JUDGMENTS Article 41. judgments conclusive as between parties and privies of facts forming ground of judgment. Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based ; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved, (a) Illustrations. (a) The question ;s, whether C, a pauper, is settled in par- ish A or parish B. D is the mother and E the father of C. D, E and several or their children were removed from A to B before the ques- tion as to C's settlement arose, by an order unappealed against, which order described D as the wife of E. The statement in the order that D was the wife of E is conclusive as between A and B. — 1 (b) A and B each claim administration to the goods of C, deceased. Administration is granted to B, the judgment declaring that, as far as appears by the evidence, B has proved himself next of kin. Afterwards there is a suit between A and B for the distri- bution of the effects of C. The declaration in the first suit is in the second suit conclusive proof as against A that B is nearer of kin to C than A. — 2 (c) A company sues A for unpaid premium and calls. A special case being stated in the Court of Common Pleas, A obtains judgment on the ground that he never was a share- holder. a R. v. Hutchins, L. R. 5 Q. B. D. 353, supplies a recent illustration of this principle. 1 R. v. Hartington Middle Quarter, 4 E. & B. 780; and see Flitters v. Allfrey, L. R. 10 C. P. 29; and contrast Dover v. Child, L. R. 1 Ex. Div. 172. 2 Barrs v. Jackson, 1 Phill. 582, 587, 588; Sears v. Dacey, 122 Mass. 388; but see Mass. Gen'l Hospital v. Fairbanks, 129 Mass. 78. As to judgment of nonsuit, see Homer v. Brown, 16 How. 354. JUDGMENTS 353 The company being wound up in the Court of Chancery, A applies for the repayment of the sum he had paid for pre- mium and calls. The decision that he never was a share- holder is conclusive as between him and the company that he never was a shareholder, and he is therefore entitled to re- cover the sums he paid. — 3 (d) A obtains a decree of judicial separation from her hus- hand B, on the ground of cruelty and desertion, proved by her own evidence. Afterwards B sues A for dissolution of marriage on the ground of adultery, in which suit neither B nor A can give evidence. A charges B with cruelty and desertion. The de- cree in the first suit is deemed to be irrelevant in the sec- ond. — 4 (e) [A, having a contract of employment for one year at $1,500, was wrongfully discharged, and after being idle two months, brought suit and recovered damages for wages ac- crued. Later he brought action for wages accrued after the institution of the first suit. The judgment in the first action is a bar to the recov- ery.] — 5 (f) [The holder of an overdue note, secured by second mortgage, was made party to a suit to foreclose, brought by a prior mortgagee, and failed to enforce his rights to share in the proceeds of sale or for a deficiency judgment. He could not thereafter maintain a suit on the note.] — 6 (g) [A wife obtained a divorce on the ground of an assault upon her, and afterwards he was prosecuted for the same assault. The judgment in the divorce case was inadmissible upon the criminal trial.] — 7 (h) [In a proceeding to condemn land of plaintiff for an irrigating canal and reservoir he was awarded damages for land taken, and also an additional sum for damages to land not taken. He could not thereafter in another suit recover for injuries to his land arising from leakage from such canal and reser- voir, where negligence or unskillful construction was not shown.] — 8 (i) [A sheriff acting under an attachment writ levied upon part of a stock of goods, and took and retained possession of the whole stock, and afterwards levied upon other portions of the stock under other attachments. Thereafter the own- 3 Bank of Hindustan, &c, Alison's Case, L. R. 9 Ch. App. 24. 4 Stoate v. Stoate, 2 Sw. & Tr. 223. 5 [Kahn v. Kahn, L' i Neb. 709, 40 N. W. 135.] 6 [Brown v. Willis, 67 Cal. 235, 7 P. 682.] 7 [Dunagain v. State, 38 Tex. Cr. R. 614, 14 S. W. 148.] 8 [Denver City Irr. & Water Co. v. Mlddaugh, 12 Colo. 434. 21 P. 565.] 354 JUDGMENTS ers of the goods brought suit for damages for conversion of goods taken under the first attachment, and for breaking up their business, recovering judgment therefor. This judgment was held a bar to further suits for dam- ages arising from the taking of goods under the other at- tachments.] — 9 (j) [In a personal injury case the plaintiff had assigned a one-third interest in the cause of action to his attorneys. The judgment bound them, though they failed to become parties.] — 10 CONCLUSIVENESS IN GENERAL. A judgment rendered by a court having jurisdiction of the parties and of the subject matter, as between such parties conclusively settles all questions litigated, unless subsequently reversed or modified. — Union Pac. Ry. Co. v. McCarty, 8 Kan. 125; Dillon v. Chicago, K. & N. R. R. Co., 58 Neb. 472, 78 N. W. 927; Davis v. Davis, 24 S. D. 474, 124 N. W. 715; Pratt v. Ratliff, 100 Okl. 168, 61 P. 523; Love v. McGill, 41 Tex. Civ. App. 471, 9 S. W. 246; Jensen v. Montgomery, 29 Utah 89, 80 P. 504; Bond v. Chapman, 34 Wash. 606, 76 P. 97; Hawkins v. Reber, 81 Wash. 79, 142 P. 432. California. A record is not conclusive as to the truth of any allegations which were not material and traversable; but as to things material and traversable it is conclusive and final. And, as to questions thus essential and thus determined, the judgment is, as a plea in bar or as evi- dence, conclusive between the same parties, upon the same matter everywhere. — Wixson v. Devine, 67 Cal. 341, 7 P. 776. A judgment for defendant as to its right to divert flood waters of a stream does not conclude plaintiff from main- taining an action to prevent defendant from diverting the natural flow of the stream or of its tributaries. — San Joaquin & King's River Canal & Irr. Co. v. Fresno Flume & Irr. Co., 169 Cal. 174, 146 P. 426. In the absence of fraud, a judgment, though wrong, is a bar to a subsequent action. — Rauer v. Rynd, 27 Cal. App. 556, 150 P. 780. 9 [Burdge v. Kelchner, 66 Kan. 642, 72 P. 232.] 10 [Hughes-Buie Co. v. Mendoza, (Tex. Civ. App.), 156 S W. 328.] JUDGMENTS 355 Kansas. A judgment is conclusive only so far as it de- termines matters put in issue or admitted by the plead- ings.— New v. Smith, 86 Kan. 1, 119 P. 380. Oklahoma. To constitute a good plea of res judicata, it must appear that the parties or their privies and the subject matter must be the same, the issues must be the same and relate to the same subject matter, and the capacities of the persons must be the same in reference to the issues between them. — Alfrey v. Colbert, 44 Okl. 246, 144 P. 179. A judgment which is not binding upon a party is not pleadable as res judicata by him. — De Watteville v. Sims, 44 Okl. 708, 146 P. 224. NATURE OF ESTOPPEL BY JUDGMENT. New Mexico. A judgment or decree set up as a bar by the pleadings or relied on as evidence by way of estoppel must be made by a court of competent jurisdiction upon the same subject matter between the same parties, for the same purpose. — Board Trustees Sevilleta De La Joya Grant v. Board Trustees Belen Land Grant, 20 N. M. 145, 146 P. 959. Oklahoma. The essence of estoppel by judgment is that there has been a judicial determination of a fact, and the question is, has there been such determination, and not, upon what evidence or by what means was it reached. — McDuffie v. Geiser Mfg. Co., 41 Okl. 488, 138 P. 1029. A judgment will not ordinarily support a plea of res judicata until it has been entered. — De Watteville v. Sims, 44 Okl. 708, 146 P. 224. NATURE OF ACTION. An action on the quantum meruit is not barred by a judgment in an action brought to recover on an express contract.— Horton v. Emerson, 30 N. D. 258, 152 N. W. 529; Hawkins v. Reber, 81 Wash. 79, 142 P. 432; Mallory v. City of Olympia, 83 Wash. 499, 145 P. 627. Texas. Judgment in favor of a bank in a suit on a con- tract, where it was held that its receiver had no power to execute it, is no bar to an action on quantum meruit. — Henrietta Nat. Bank v. Barrett, (Tex. Civ. App), 25 S. W. 456. 356 JUDGMENTS NATURE OF DECISION. Where a defendant is dismissed from an action before judgment the effect of the dismissal is the same as if he had never been a party and he is not bound by the judgment, the effect of the dismissal is the same as if P. 278; Holt Mfg. Co. v. Collins, 154 Cal. 265, 97 P. 516; Fred Krug Brewing Co. v. Healey, 71 Neb. 662, 101 N. W. 729; Coughanour v. Hutchinson, 41 Or. 419, 69 P. 68; Hart v. Meredith, 27 Tex. Civ. App. 271, 65 S. W. 507. A former judgment in order to be a bar must have been a decision of the merits of the cause. — Cooper v. McCoy, 116 Ark. 501, 173 S. W. 412; Spence v. Hull, 75 Or. 267, 146 P. 95. A judgment on the merits is only conclusive between the parties when the question to be determined in the sec- ond action is the same question judicially settled in the first, and such judgment does not operate as an estoppel with respect to matters which could not have been proper- ly litigated under the issues. — Ramsbottom v. Bailey, 124 Cal. 259, 56 P. 1036; Water Supply & Storage Co. v. Lari- mer & Weld Irr. Co., 25 Colo. 87, 53 P. 386; Cassell v. Morrow, 13 S. D. 109, 82 N. W. 418; Pitts v. Oliver, 13 S. D. 561, 83 N. W. 591; Walraven v. Farmers' & Merchants' Nat. Bank, (Tex. Civ. App.), 53 S. W. 1028; Harding v. Atlantic Trust Co., 26 Wash. 536, 67 P. 222. Colorado. A judgment of nonsuit, or mere dismissal, is no bar to another action for the same cause. — Hallack v. Loft, 19 Colo. 74, 34 P. 568. Kansas. Judgments vacating attachments sued out by creditors will not prevent a re-examination of the same subject matter in an action of replevin for the same goods taken by a sheriff under execution by such creditors. — Miami County Nat. Bank v. Barkalow, 53 Kan. 68, 35 P. 796. A judgment by default based on actual notice to de- fendant is as conclusive against him upon every matter admitted by the default as if he had personally appeared and contested plaintiff's right. — Garrett Biblical Institute v. Minard, 82 Kan. 338, 108 P. 80. A judgment of dismissal upon settlement, with consent of plaintiff, is a bar to further action on the claim. — JUDGMENTS 357 Robinson v. Chicago, R. I. & P. R. Co., 96 Kan. 137, 150 P. 636. Nebraska. In an action of replevin where judgment is rendered in favor of defendant solely upon the ground that plaintiff's petition does not state a cause of action, such judgment is not a bar to a subsequent proceedings to establish plaintiff's right of property or right of pos- session or to establish any lien he may have upon the property. — Pennington County Bank v. Bauman, 85 Neb. 226, 122 N. W. 845. A judgment upon a verdict directed by the court on motion of defendant is conclusive. — Reams v. Sinclair, 97 Neb. 542, 150 N. W. 826. Oklahoma. A mere memorandum opinion of a court is not a judgment sufficient to support a plea of res judicata. -De Watteville v. Sims, 44 Okl. 708, 146 P. 224. A judgment on demurrer unappealed from is conclusive of the matters and things confessed by the demurrer. — Corrugated Culvert Co. v. Simpson Tp., (Okl.), 151 P. 854. SCOPE OF INQUIRY. California. For the purpose of determining whether the issues involved in a former suit constitute a bar to a sec- ond action, reference will be had to a comparison of the records of the two cases. — Ahlers v. Smiley, 11 Cal. App. 343, 104 P. 997. Nevada. Where the pleadings do not upon their face show the issue tried and determined between the parties, the same may be shown by extrinsic evidence. — Gulling v. Washoe County Bank, 29 Nev. 257, 89 P. 25. Oklahoma. The inquiry of res adjudicata is not limited to the mere formal judgment. It extends to the plead- ings, the verdict and the findings. — McDuffle v. Geiser Mfg. Co., 41 Okl. 488, 138 P. 1029. MATTERS CONCLUDED. Arizona. Appellant unsuccessfully contested the appoint- ment of an administrator on the ground that his deceased brother was a non-resident and owned no property in the territory. In an action against the administrator for specific performance of a contract for the sale of land appellant could not object to the jurisdiction of the court 358 JUDGMENTS on the ground of non-residence. — Scarry's Estate, In re, 1,5 Ariz. 246, 137 P. 868. Arkansas. A judgment against a charitable association does not necessarily conclude the question as to whether its property is subject to execution. — Woman's Christian Nat. Library Ass'n v. Fordyce, 73 Ark. 625, 86 S. W. 417. Kansas. The fact that others were parties defendant to the record, and bound by the judgment, does not make the same less conclusive. (Suit to recover personal prop- erty alleged to have been transferred to defendant in fraud of creditors barred by judgment in former action affirming validity of transfer of real estate in the same transaction, in which defendant's wife was made a party. —Peterson v. Warner, 6 Kan. App. 298, 50 P. 1091. A judgment affirming validity of transfer of property by a debtor is conclusive upon the parties thereto in re- spect to all the property covered by that entire trans- action, although but part thereof was the subject matter of the former action. (Real estate, together with personal property transferred at one time). — Peterson v. Warner, 6 Kan. App. 298, 50 P. 1091. Montana. A decree determining the priority of rights to the water of a stream is conclusive as to the right to take water from a lake tributary thereto, though the exist- ence of the lake was not then known to the parties. — Ryan v. Quinlan, 45 Mont. 521, 124 P. 512. Nebraska. A plea of res judicata in tax cases is limited to the taxes for the years actually litigated. — Chicago, B. & Q. Ry. Co. v. Cass County, 72 Neb. 489, 101 N. W. 11. New Mexico. A judgment for rents and profits during the pendency of an ejectment action is not a bar to a further suit for rents and profits covering a period anterior to that covered by the former recovery. — Neher v. Armijo, 11 N. M. 67, 66 P. 517. Texas. An action for false representations in the sale of cigars may be maintained although the seller has recov- ered judgment in an action for their price. — McCord- Collins Commerce Co. v. Levi, 21 Tex. Civ. App. 109, 50 S. W. 606. Judgment upon a vendor's lien note or a debt se- cured by mortgage does not bar a subsequent suit to fore- JUDGMENTS 359 close the lien. — Middleton v. Nibling, (Tex. Civ. App.), 142 S. W. 968. Washington. Judgment adverse to plaintiff upon an al- leged contract arising out of a bid by it for land offered at public sale by a county bars a subsequent action for specific performance of the contract on the ground of bad faith of officers in not striking off the land to plaintiff. — McPherson Bros. Co. v. Okanogan County, 61 Wash. 239, 112 P. 267. Matters Actually Litigated and Determined. Arkansas. To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must ap- pear that the particular matter sought to be concluded was raised and determined in the prior suit. — Fogel v. Butler, 96 Ark. 87, 131 S. W. 211. California. Where the amount paid by defendant to plain- tiff for a release from damages for injuries is not con- sidered in a subsequent judgment for said injuries, de- fendant is not estopped to recover the sum so paid. — Southern Pac. Co. v. Edmunds, 168 Cal. 415, 143 P. 597. Kansas. A judgment which may have resulted from a determination of either one of two or more separate issues does not constitute an adjudication as to either, where it is not shown upon which it was in fact based. (Action for rent by owner of tax deed. Judgment for defendant, but not stating whether tax deed was void or occupancy was such as created obligation on defendant's part to payment, does not bar action for ejectment by owner of tax deed.) — Routh v. Bd. Com'rs Finney County, 84 Kan. 25, 113 P. 397. Nebraska. Where plaintiff's title to premises was quieted as against a certain deed adjudged never to have been legally delivered to defendants, the latter are not con- cluded from asserting title or rights under other contracts. — Wetherell v. Adams. 80 Neb. 589, 116 N. W. 861. Nevada. In a suit for foreclosure the holder of a legal title and a subsequent mortgagee answered the complaint but did not serve answers nor set up cross bills against each other. The issue as to the right of such mortgagee as against the title holder having been actually tried by 360 JUDGMENTS consent, a judgment on such issue is conclusive. — Gulling v, Washoe County Bank, 29 Nev. 257, 89 P. 25. Texas. Every point which has been expressly or by necessary implication placed in issue, which must have been necessarily decided in order to support the judgment, is conclusive. (It being decided in a divorce action that certain lots were the separate property of the wife, the hus- band could not thereafter maintain an equitable action to enforce an equitable lien for one-half the amount expended upon improvements thereon out of community funds.) — Shook v. Shook, (Tex. Civ. App.), 145 S. W. 699. Washington. Notwithstanding the fact that certain ques- tions might have been tried in the former case, if it affirmatively appears that they were not tried, the doc- trine of res judicata will not apply.— International Devel. Co. v. Clemans, 66 Wash. 620, 120 P. 79. Matters Which Might Have Been Litigated. A judgment is conclusive not only upon matters which were actually litigated, but also upon those which might have been, if within the scope of the issues. — Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973; Allen v. Allen, 159 Cal. 197, 113 P. 160; Smith v. Cowell, 41 Colo. 178, 92 P. 20; Triska v. Miller, 86 Neb. 503, 125 N. W. 1070; Rich- ardson v. Trout, (Tex. Civ. App.), 135 S. W. 677; Olsen v. Title Trust Co., 58 Wash. 599, 109 P. 49; State v. Superior Court, 62 Wash. 556, 114 P. 427. The rule that matters which might have been litigated are concluded by the judgment does not apply to a case where the matter relied on was not incidental to the de- termination, but was a distinct and separate cause of action which the record shows was left undetermined: California: Coats v. Coats, 160 Cal. 671, 118 P. 441 (de- cree of annulment of marriage, without determining prop- erty rights, no bar to suit therefor) ; Jacoby v. Peck, 23 Cal. App. 363, 138 P. 104 (judgment for installments of debt not a bar to action for later installments, though they might have been included in the judgment by sup- plementary complaint). Colorado: Johnson v. Johnson, 20 Colo. 143, 36 P. 898 (action and cross-complaint for divorce, both parties ask- ing for determination of title to certain property. Decree JUDGMENTS 361 granting divorce, leaving question of property undeter- mined held not to bar husband from action to establish a resulting trust in wife, upon same facts as set up in divorce action). California. One who has failed in an action determining the title and right to possession of certain property can not in another suit claim under a deed which he might have set up in the former action. — Nemo v. Farrington, 7 Cal. App. 443, 94 P. 874. Motion to quash service of summons on foreign cor- poration on the ground that the person upon whom process was served was not the proper agent upon whom to make service. In a suit in the foreign state upon the judgment thereafter rendered, defendant could not set up any other grounds whereby the summons in the former suit snould have been quashed. — Suisun Lumber Co. v. Fairfield School Dist, 19 Cal. App. 587, 127 P. 349. Colorado. A judgment between parties is conclusive not only as to the matters which were in fact determined, but as to all other matters which might have been liti- gated as incidental or essentially connected with the sub- ject matter of the litigation, whether the same were or were not, as a matter of fact, considered. — Bushnell v. Larimer & Weld Irr. Co., 56 Colo. 92, 136 P. 1017. Oklahoma. A regular judgment, whilst it remains in force, is conclusive as to every matter that might have been given in evidence in the action in which it was rendered, except matters growing out of separate and individual causes of action which might have been pleaded in offset. (Reasonableness of telephone rates.) — Pioneer Tel. & Tel. Co. v. State, 40 Okl. 417, 138 P. 1033. A judgment of a court of competent jurisdiction de- livered upon the merits of a cause is final and con- clusive between the parties in a subsequent action upon the same cause, not only as to all matters actually liti- gated and determined in the former action, but also as to every ground of recovery or defense which might have been presented and determined therein. (Decree direct- ing cancellation of two deeds from incompetent bars action on another deed to same land to same party from 362 JUDGMENTS incompetent which might have been set up in same action.)— Alfrey v. Colbert, 44 Okl. 246, 144 P. 179. South Dakota. In the absence of proof that a particular issue was actually tried and determined in arriving at a former judgment, it is conclusive only as to those facts without existence and proof of which it could not have been rendered. (Judgment in suit by mortgagee to quiet title against the mortgagor, where the mortgagee in his reply set up the statute of limitations, does not estop him from pleading the statute in a suit to foreclose, where it does not appear from the judgment that the statute was considered.)— Kaufmann v. Barton, 23 S. D. 442, 122 N. W. 416. Texas. A former judgment Is only conclusive of such matters as were essential to be determined before the judgment could be rendered. (Judgment for title and pos- session not conclusive as to right to lien securing a pur- chase money note.) — Manning v. Green, 56 Tex. Civ. App. 579, 121 S. W. 721. In order for a suit to be res judicata as to the mat- ter involved in a subsequent suit, it must appear that the very point in issue was adjudicated in the former suit, or could have been adjudicated under the pleadings. — Mid- dleton v. Nibling, (Tex. Civ. App.), 142 S. W. 968. Washington. In an action between the same parties a judgment therein is res judicata as to all points in issue and also all points which might have been raised and adjudicated.— Olson v. Title Trust Co., 58 Wash. 599, 109 P. 49; Hawkins v. Reber, 81 Wash. 79, 142 P. 432. A judgment is conclusive of the questions there pre- sented or which might have been presented. — Merz v. Mehner, 67 Wash. 135, 120 P. 893. Judgment in a suit upon a contract for building a struc- ture bars a subsequent action for damages on account of delay, negligence and other matters arising out of the contract.— Perlus v. Silver, 71 Wash. 338, 128 P. 661. Matters Which Could Not Have Been Litigated. California. One holding land by adverse possession could not have had his title determined in probate proceedings for the distribution of the estate of which such land had formed a part, and is not barred by the judgment in such JUDGMENTS 363 proceedings from maintaining an action to quiet title. — Bath v. Valdez, 70 Cal. 350, 11 P. 724. Kansas. A decree of divorce obtained by a husband in another state is valid as to the status of the parties, but is not a bar to an action by the wife to enforce her claim to alimony out of property in this state and for custody of the children. — Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779. Montana. The recovery of salary during the time of wrongful removal from office could not have been liti- gated in mandamus to compel restoration to office, and judgment in such proceeding is no bar to an action to recover such salary. — Bailey v. Edwards, 47 Mont. 363, 133 P. 1095. Nebraska. A judgment in replevin determines the right of possession at the time of the commencement of the suit, and is not inconsistent with the right of the defeated party to assert a right of possession under changed con- ditions. — Bennington County Bank v. Bauman, 85 Neb. 226, 122 N. W. 848. Matters Determined By General Finding. Nebraska. A party may not present issues for determina- tion, and avoid the effect of an estoppel by withholding proof thereof, so that when a plaintiff alleges several facts, the proof of any one of which entitles him to judgment and there is a general finding against him, it will be con- clusively presumed that each fact so averred was deter- mined against him.— Slater v. Skirving, 51 Neb. 108, 70 N. W. 493. Different Cause of Action. Nebraska. A right, question or fact distinctly put in issue and directly determined by a court of competent jurisdic- tion as a ground of recovery cannot be disputed in a subsequent suit between the same parties or their privies, even though the second suit is for a different cause of action.— Chicago, B. & Q. R. Co. v. Cass County, 72 Neb. 489, 101 N. W. 11. 117 Am. St. R. S06. Defenses Neglected. Arkansas. It being the duty of an administrator to set ui) conversion of funds by widow as defense to award of 364 JUDGMENTS dower on final settlement, he cannot set up such defense in an action brought by her for failure to pay the amount awarded.— Briggs v. Manning, 80 Ark. 304, 97 S. W. 289. California. Motion to quash service of summons upon foreign corporation on the ground that the person upon whom process was served was not the proper agent upon whom to make service. In a suit in the foreign state upon the judgment thereafter rendered, defendant could not set up any other grounds whereby the summons in the for- mer suit. should have been quashed. — Suisun Lumber Co. v. Fairfield School Dist., 19 Cal. App. 587, 127 P. 349. Nebraska. If one has a defense which he neglects to make, it is at his peril, and this is as true as to adverse interests between co-defendants as between plaintiff and defendant, where rights of defendants are involved in the determination of the controversy. — Orcutt v. McGinley, 96 Neb. 619, 148 N. W. 586. An owner of land in an irrigation district brought suit to enjoin the collection of taxes and to cancel its bonds, making the bondholders and the district defendants. The district, not contesting the validity of the bonds, was estopped from so doing as against the bondholders in an- other suit.— Orcutt v. McGinley, 96 Neb. 619, 148 N. W. 586. Utah. Suit by policemen wrongfully discharged for salary due for a certain period. The city having failed to set up in a suit for salary during a prior period that plaintiffs had immediately on discharge obtained employment else- where was estopped from setting the fact up in the subse- quent action.— Everill v. Swan, 20 Utah 56, 57 P. 716. Judgment on Part of Cause of Action. Kansas. Judgment for defendants in an action for one month's rent of leased property after the property had burned down bars a later action for conversion of part of the leased property, for failure to insure, and for negli- gence of defendants causing the fire. — Whittaker v. Haw- ley 30 Kan. 317. Where a creditor splits up a running account which con- stitut.es a single cause of action and recovers upon a part of the same, such adjudication constitutes a complete bar to a recovery on the remaining portion of the account. — JUDGMENTS 365 Bolen Coal Co. v. Whittaker Brick Co., 52 Kan. 747, 35 P. 810. A judgment that defendant was surety on one of a series of notes to secure one entire debt, and was released by a material alteration in the contract, is conclusive in an action upon the other notes. — Peru Plow & Wheel Co. v. Ward, 6 Kan. App. 289, 51 P. 805. Oregon. A decision in a different action between the same parties for breach of contract is res judicata in a subse- quent action for a different breach in which issues re- lated to that decided were raised. — Krebs Hop Co. v. Livesley, 55 Or. 227, 104 P. 3. Utah. A judgment that plaintiff was entitled to and held an office as policeman, and to a certain installment of salary, is conclusive in an action to recover a subsequent installment.— Everill v. Swan, 20 Utah 56, 57 P. 716. Washington. A contract provided for the conveyance to plaintiff of different tracts of land, and on failure to per- form plaintiff brought suit for specific performance as to certain lands. The judgment therein was a bar to an- other suit to compel the specific performance as to other lands described in the contract. — Collins v. Gleason, 47 Wash. 62, 91 P. 566. Judgment in a suit upon a contract for building a struc- ture bars a subsequent action for damages on account of delay, negligence and oth'er matters arising out of the con- tract.— Perlus v. Silver, 71 Wash. 338, 128 P. 661. Grounds of Judgment. Arizona. A right, question or fact distinctly put in issue and directly determined by a court of competent juris- diction as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies even if the second suit is for a different cause of action. (Suit for rent for a certain year. Defense of failure to furnish water inadmissible, the question having been de- termined adversely to defendants in a suit for the prior year's rent.)— Stevens v. Wadleigh, 6 Ariz. 351, 57 P. 622. Kansas. A thing contained in the findings or the verdict, but not included in or confirmed by the judgment, cannot be considered as an adjudication or used in evidence un- less some other ground can be found for its use than 366 JUDGMENTS merely that it is contained in such finding or verdict. — Mitchell v. Insley, 33 Kan. 654, 7 P. 201. Nebraska. The question whether a certain bridge is not "part of the continuous line of road," is a question of law and not a question of fact upon which an estoppel can be predicated. — Chicago, B. & Q. R. Co. v. Cass County, 72 Neb: 489, 101 N. W. 11. If the liability of property to taxation depends upon the existence of a specific fact, and that fact is necessarily determined in one litigation, it cannot be controverted by the same parties in subsequent litigation. — Chicago, B. & Q. R. Co. v. Cass County, 72 Neb. 489, 101 N. W. 11. Questions For Court. Oklahoma. When a former judgment is set up as a bar or estoppel, the question whether there is such an identity of the parties and of the subject matter or cause of action as will support the plea of res judicata is a question of law for the court, when it is determinable from an inspec- tion of the record.— Alfrey v. Colbert, 44 Okl. 246, 144 P. 179. Article 42. statements in judgments irrelevant as between stran- gers, except in admiralty cases. Statements contained in judgments as to the facts upon which the judgment is based are deemed to be irrelevant as between strangers, or as between a party, or privy, and a stranger, ex- cept (a) in the case of judgment of Courts of Ad- miralty condemning a ship as prize. In such cases the judgment is conclusive proof as against all persons of the fact on which the condemnation proceeded, where such fact is plainly stated upon the face of the sentence. a This exception is treated by Lord Eldon as an objection- able anomaly in Lothian v. Henderson, 3 B. & P. 545. See, too, Castrique v. Imrie, L. R. 4 E. & I. App. 434, 435. JUDGMENTS 367 Illustrations. (a) The question between A and B is, whether certain lands in Kent had been disgavelled. A special verdict on a feigned issue between C and D (strangers to A and B) find- ing that in the 2d Bdw. VI. a disgavelling Act was passed in words set out in the verdict is deemed to be irrelevant. — 1 (b) The question is, whether A committed bigamy by mar- rying B during the lifetime of her former husband, C. A decree in a suit of jactitation of marriage, forbidding C to claim to be the husband of A, on the ground that he was not her husband, is deemed to be irrelevant. — 2 (c) The question is, whether A, a ship owner, has broken a warranty to B an underwriter, that the cargo of the ship whose freight was insured by A was neutral property. The sentence of a French prize court condemning ship and cargo, on the ground that the cargo was enemy's property, is conclusive proof in favor of B that the cargo was enemy's property (though on the facts the court thought it was not.] —3 (d) [The question is, whether A and B are the heirs of C. A decree of a court in Alaska, distributing the estate of C in that territory to A and B, reciting that they were the heirs of C, is irrelevant.] — 4 STATEMENTS IN JUDGMENTS. California. One having been rightfully elected to an office, but refused admission thereto by the incumbent on account of claimant's election being contested by an oppon- ent, is not estopped from claiming the salary during the time of his ouster by the fact that the salary was paid to the incumbent in accordance with a writ of mandamus. — People ex rel. Dorsey v. Smith, 28 Cal. 21. One claiming property may go behind a decree fore- closing a mechanic's lien, to which action he was not a party, and show that no lien in fact existed. — Horn v. Jones, 28 Cal. 1!»4. Montana. An owner is not barred from disputing with his contractor the question whether certain painting was done in accordance with contract, by the fact that a sub- contractor recovered judgment against the principal con- tractor for the same work. — Wagner v. St. Peter's Hos- pital, 32 Mont. 206, 79 P. 1054. 1 Doe v. Brydges, 6 M. & G. 282. 2 Duchess of Kington's Case, 2 S. L. C. 760. 3 Geyer v. Aguilar, 7 T. R. 681. 4 [Mace v. Duffy, 39 Wash. 597, 81 P. 1053.] 368 JUDGMENTS Nebraska. A judgment, as between strangers to it, is only proof of its own existence, and does not establish any of the facts on which it is based. — Citizens' State Bank v. Porter, 4 Neb. (Unof.) 73, 93 N. W. 391. North Dakota. A county obtained judgment against a surety on its defaulting treasurer's bond. In a suit by the surety against a bank to recover county money de- posited in the treasurer's own name, the judgment as to default was not conclusive against the bank, but had to be proved. — Northern Trust Co. v. First Nat. Bank, 25 N. D. 74, 140 N. W. 705. Texas. A judgment in an action against the unknown heirs of one E. to remove a cloud from title, cannot be used evidentially to prove the death of said E. — McCamant v. Roberts, 66 Tex. 260, 1 S. W. 260. A judgment in an election contest, that a county seat was rightfully removed, is no bar to an action to enjoin an issue of bonds to effect such removal. — Kilgore v. Jack- son, 55 Tex. Civ. App. 99, 118 S. W. 819. Utah. Where the purpose of certain actions was to re- cover dower, and to be awarded a widow's share in an estate, and the relation of plaintiff as a legal wife, while a material issue, was only incidental to the issues, the judgments therein are not admissible to establish the marriage relation, in another action to recover dower, brought against different parties. — Hilton v. Snyder, 37 Utah 384, 108 P. 698. Article 43. effect of judgment not pleaded as an estoppel. If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter which was or might have been decided in the action in which it was given is in issue or is or is deemed to be relevant to the issue in any subsequent proceed- ing. JUDGMENTS 369 Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel. Illustrations. (a) A sues B for deepening the channel of a stream, whereby the flow of water to A's mill was diminished. A verdict recovered by B in a previous action for substan- tially the same cause, and which might have been pleaded as an estoppel, is deemed to be relevant, but not conclusive in B's favor. — 1 (b) A sues B for breaking and entering A's land, and building thereon a wall and a cornice. B pleads that the land was his, and obtains a verdict in his favor on that plea. Afterwards B's devisee sues A's wife (who on the trial ad- mitted that she claimed through A) for pulling down the wall and cornice. As the first judgment could not be pleaded as an estoppel (the wife's right not appearing on the plead- ings), it is conclusive in B's favor that the land was his. — 2 NECESSITY OF PLEADING JUDGMENT. The defense of former adjudication, to be available, must be pleaded. — McNeil's Estate, In re, 155 Cal. 333, 100 P. 1086; Schudel v. Helbing, 26 Cal. App. 410, 147 P. 89; Brown v. Campbell, 110 Cal. 644, 43 P. 12; McLean v. Baldwin. 136 Cal. 565, 69 P. 259; Boston & Colo. Smelting Co. v. Reed, 23 Colo. 523, 48 P. 515; Josephi v. Mady Cloth- ing Co., 13 Mont. 195, 33 P. 1; Gregory v. Kenyon, 34 Neb. 640, 52 N. W. 685; Kitchin Bros. Hotel Co. v. Hammond, 30 Neb. 618, 46 N. W. 920; Davis v. Chamberlain, 51 Or. 304, 98 P. 154; Murray v. Murray, 6 Or. 26; Bays v. Trul- son, 25 Or. 109, 35 P. 26; Interstate Nat. Bank v. Clax- ton, 45 Tex. Civ. App. 303, 77 S. W. 14; Pye v. Wyatt, (Tex. Civ. App.). 151 S. W. 1086; State v. St. Louis, S. W. Ry. Co., (Tex. Civ. App), 165 S. W. 491; Mullinax v. Barrett, (Tex. Civ. App.), 173 S. W. 1181. 1 Vooght v. Winch, 2 B. & A. 662; and see Feversham v. Emerson, 11 Ex. 391. 2 Whitaker v. Jackson, 2 H. & C. 926. This had previously been doubted. See 2 Ph. Ev. 24, n. 4. 370 JUDGMENTS Arkansas. The defense of res judicata cannot be raised by demurrer, but only by answer. — Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105. California. In an action of ejectment where defendant simply denied the allegation of the complaint, he could not introduce in evidence a copy of the record of a for- mer recovery. — Piercy v. Sabin, 10 Cal. 22. Former recovery may be set up to a defense of defend- ant, plaintiff having no opportunity to plead it, a replica- tion not being required. — Wixson v. Devine, 67 Cal. 341, 7 P. 776. The rule that a judgment must be pleaded in order to render it available as an estoppel does not require its setting out in a complaint. — Ahlers v. Smiley, 11 Cal. App. 343, 104 P. 997. In a suit for personal injuries, a judgment for damages to plaintiff's automobile received in the same accident, in order to be available as a defense, must be pleaded. — Schermerhorn v. Los Angeles Pac. R. Co., 18 Cal. App. 454, 123 P. 351. Colorado. Plaintiff, suing her landlord for damages for wrongful attempts to evict her, may introduce the judg- ment in a prior suit between her and defendant, wherein she was adjudged to be entitled to the premises, although the judgment was not pleaded. — Gray v. Linton, 38 Colo. 175, 88 P. 749. Nebraska. Where a former judgment is relied on as an estoppel it must be pleaded. — Gregory v. Kenyon, 34 Neb. 640, 52 N. W. 685. New Mexico. In order to avail himself of the defense of res judicata in a suit in equity, the defendant should plead and prove facts sufficient to establish a former adjudication of the issue by judgment decree, or final order of a. court of competent jurisdiction. — Ortiz v. First Nat. Bank. 12 N. M. 519, 78 P. 529. North Dakota. When there is no request by defendant for a reply, a former judgment may be proved, though not pleaded.— Kain v. Garnaas, 27 N. D. 292, 145 N. W. 825. Oregon. An estoppel by record, to become available as a cause of action or defense must be pleaded. — Bays v. Trul- son, 25 Or. 109, 35 P. 26. JUDGMENTS 371 Washington. A former judgment not having been entered when an answer was filed In an action, defendants are not estopped from introducing such judgment in evidence by the fact that they had not pleaded it, especially where plaintiffs pleaded it in a supplemental reply. — Collins v. Gleason, 47 Wash. 62, 91 P. 566. Article 44. judgments generally deemed to be irrelevant as between strangers. Judgments are not deemed to be relevant as rendering probable facts which may be inferred from their existence, but which they neither state nor decide — as between strangers; as between parties and privies in suits where the issue is different even though they relate to the same occurrence or subject matter; or in favor of strangers against parties or priv- ies. But a judgment is deemed to be relevant as be- tween strangers : (1) if it is an admission, or (2) if it relates to a matter of public or general interest, so as to be a statement under Article 30. Illustrations. (a) The quest ion is, whether A has sustained loss by the negligence of B his servant, who has injured C's horse. A judgment recovered by C against A for the Injury, though conclusive as against B, as to the fact that C recov- ered a sum <. Prior Mortgagee. Washington. A prior mortgage filed and indexed before the creation of a right to mechanics' lien is not bound thereby or by the sale made thereunder.— A. H. Averil! Machinery Co. v. Allbritton, 51 Wash. 30, 97 P. 1082. JUDGMENTS 381 Prior Grantee or Contractor. A judgment against a grantor of land rendered subse- quent to a conveyance of his interest does not bind the grantee. — Roulston v. Hall, 66 Ark. 305, 50 S. W. 690; Adams v. Hopkins, 144 Cal. 19, 77 P. 712; State v. Cough- ran, 19 S. D. 71, 103 N. W. 31; Ellis v. LeBow, 96 Tex. 532, 74 S. W. 528. Ordinarily a judgment in an action commenced subse- quently to a purchase of real estate is not binding upon the purchasers not parties thereto. — De Watteville v. Sims, 44 Okl. 708, 144 P. 224; Wilson v. Clemens, (Tex. Civ. App.), 170 S. W. 855. Arkansas. Where defendant in attachment had already sold to another the lumber attached, the latter is not bound by the judgment, not being a party. — Biederman v. Parker, 105 Ark. 86, 150 S. W. 397. Idaho. A party in possession of land under contract to purchase is not in privity with the party who contracted to sell, in the sense that he will be bound by the judgment affecting such property, where the action was commenced subsequent to entering into such contract.— Schuler v. Ford, 10 Ida. 739, 80 P. 219. Subsequent Grantee. Grantees taking land after the institution of a suit re- garding the same brought against their grantor are bound by the judgment. — Provident Loan Trust Co. v. Marks, 6 Kan. App. 34. 49 P. 625; Henry v. Thomas, (Tex. Civ. App.). 74 S. W. 599. A decree quieting title against a person binds his sub- sequent grantee. — Shepperd v. Coeur d'Alene Lumber Co., 16 Ida. 293, 101 P. 591; Hungate v. Hetzer, 83 Kan. 265, 111 P. 283. Idaho. One holding a tax certificate is made defendant in a suit to quiet title. The judgment binds one to whom he afterwards transfers his certificate. — Smith v. Kessler, 22 Ida. 589, 127 P. 172. Trustee and Beneficiary. A judgment against the trustee in a trust deed in a suit to quiet title, binds the beneficiaries. — Sherman v. Good- 382 JUDGMENTS win, 15 Ariz. 47, 185 P. 710; WatMffS v. Bryant, 91 Cal. 492, 27 P. 775. Contra: Webster v. Kautz, 22 Colo. App. Ill, 123 P. 139. A mortgagee or beneficiary under a trust deed, who has not been made a party to a suit involving the property is not bound by the judgment. — Williams v. Cooper, 124 Cal. 666, 57 P. 577; Fleming v. Prudential Ins. Co., 19 Colo. App. 126, 73 P. 752; Goff v. Byers' Bros. & Co., 70 Neb. 1, 96 N. W. 1037. Landlord and Tenant. A landowner who is not a party to, has no notice of and does not defend an action of ejectment against his tenant, is not bound by a judgment in the action adverse to the tenant.— Eldred v. Johnson, 75 Ark. 1, 86 S. W. 670; Dit- linger v. Miller, 81 Kan. 9, 105 P. 20; Hart v. Meredith, 27 Tex. Civ. App. 271, 65 S. W. 507. California. But if the landlord assumes his defense and puts his title in issue, the judgment binds him the same as though he was made a party on the record. — Russell v. Mallon, 38 Cal. 259. Holder of Note Secured by Trust Deed. A judgment in a suit to quiet title against an original holder of a note secured by trust deed does not bind one to whom the note had been previously transferred. — Web- ster v. Kautz, 22 Colo. App. Ill, 123 P. 139. Nor is the assignee of a note secured by mortgage not made a party, bound by the judgment in an action to can- cel the mortgage. — Aetna Indemnity Co. v. Altadena Min. & Inv. Co., 11 Cal. App. 26, 104 P. 470. Colorado. A judgment in a suit to quiet title against an original holder of a note secured by trust deed does not bind one to whom the note had previously been transferred. —Webster v. Kautz, 22 Colo. App. Ill, 123 P. 139. Administrator and Heir. Nebraska. A judgment dismissing an administrator's action to quiet title is not a bar to a subsequent action by the heir against the defendant in the administration suit to quiet title to the same property. — Eayrs v. Nason, 54 Neb. 143, 74 N. W. 408. 383 JUDGMENTS Corporation and Stockholders. A corporation brought suit on behalf of the corporation to annul a sale of corporate property to one of its directors, the corporation being made a defendant. Judgment for defendants was a bar to a subsequent suit by another stockholder to effect the same end.— Hearst v. Putnam Min. Co., 28 Utah 184, 77 P. 753. Article 45. judgments con< i.isivk i.\ favor of judge. When any action is brought against any person for anything done by him in a judicial capacity, the judgment delivered, and the proceedings an- tecedent thereto, are conclusive proof of the facts therein stated, whether they are or are not neces- sary to give the defendant jurisdiction, if, assum- ing them to be true, they show that he had juris- diction. Illustration. A sues B (a justice of the peace) for taking from him a vessel and 500 lbs. of gunpowder thereon. B produces a con- viction before himself of A for having gunpowder in a boat on the Thames (against 2 Geo. Ill, c. 28). The conviction is conclusive proof for B that the thing called a boat was a boat. — 1 A recital in a judgment for contempt that at the time of the issuance and service of a writ of habeas corpus the person named in the writ was in custody and control of the petitioner is conclusive in a habeas corpus proceed- ing brought by petition ir Sternes, ex parte, 77 Cal. 156, 19 P. 275. 1 Brittain v. Kinnaird, 1 K. A R 183 384 JUDGMENTS Article 46. fraud, collusion, or want of jurisdiction may be proved. Whenever any judgment is offered as evidence under any of the articles hereinbefore contained, the party against whom it is so offered may prove that the Court which gave it had no jurisdiction, or that it has been reversed, or, if he is a stran- ger (a) to it, that it was obtained by any fraud or collusion, to which neither he nor any person to whom he is privy was a party, (b) JURISDICTION OF COURT. A decree of a court of general jurisdiction is unimpeach- able in a collateral proceeding, where the court has juris- diction of the parties and subject-matter. — Clarke v. Asher, 53 Colo. 313, 125 P. 538; Claypool v. O'Neill, 65 Or. 511, 133 P. 349. A judgment rendered without jurisdiction is void and may be impeached in a collateral as well as in a direct pro- ceeding. — Grimmet v. Askew, 48 Ark. 151, 2 S. W. 707; McDonald v. Ft. Smith & W. R. Co., 105 Ark. 5, 150 S. W. 135; Klumpke v. Henley, 24 Cal. App. 35, 140 P. 313; Em- pire Ranch & Cattle Co. v. Farmer, 24 Colo. App. 45, 131 P. 799; Gibson v. Austin, 23 Colo. App. 220, 128 P. 859; Larimer v. Knoyle, 43 Kan. 344, 23 P. 489; Johnson v. Par- rotte, 46 Neb. 51, 64 N. W. 363; First State Bank of Add- ington v. Latimer, (Okl.), 149 P. 1099; Jefferson v. Galla- gher, (Okl.), 150 P. 1071; Furgeson v. Jones, 17 Or. 204, 20 P. 842; Withers v. Patterson, 27 Tex. 491, 86 Am. Dec. 643; Hall v. Jahns & Lofton, (Tex. Civ. App.), 165 S. W. 67. The presumption is that a court of general jurisdiction is regular and the burden of proving the contrary is upon the one attacking it. — Bagley v. City and County of San Francisco, 19 Cal. App. 255, 125 P. 931; Empire Ranch & a [Vose v. Morton, 4 Cush. (Mass.) 27.] b Cases collected in T. E. ss. 1524-1525, s. 1530. See, too, 2 Ph. Ev. 35, and Ochsenbein v. Papelier, L. R. 8 Ch. 695. JUDGMENTS 385 Cattle Co. v. Coleman, 23 Colo. App. 351, 129 P. 533; Ross v. Newsom, 25 Colo. App. 393, 138 P. 1015; Kavanah v. Hamilton, 53 Colo. 157, 125 P. 512; Hughes v. Webster, 52 Colo. 475, 122 P. 789; Shane v. Peoples, 25 N. D. 188, 141 N. W. 737; Hocker v. Johnson, 38 Okl. 60, 131 P. 1094; Carter v. Frahm, 31 S. D. 379. 141 N. W. 370; Wilkins v. Simmons, (Tex. Civ. App.), 151 S. W. 1145; Gibson v. Oppenheimer, (Tex. Civ. App.), 154 S. W. 694; Lester v. Gatewood, (Tex. Civ. App.), 166 S. W. 389; McHugh v. Conner, 68 Wash. 229, 122 P. 1018; Kline Bros. & Co. v. North Coast Fire Ins. Co., 80 Wash. 609, 142 P. 7. A judgment may be attacked, even in a collateral pro- ceeding, if the court rendering it had no jurisdiction either of the person or subject-matter. — Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707; Hahn v. Kelly, 34 Cal. 391; Clayton v. Clayton, 4 Colo. 410; Johnson v. Parrotte, 46 Neb. 51, 64 N. W. 363; Furgeson v. Jones, 17 Or. 204, 20 P. 842; Fitzhugh v. Custer, 4 Tex. 391, 51 Am. Dec. 728. Where no jurisdiction is acquired over the person, the judgment is void, even on collateral attack. — Pray v. Jenkins, 47 Kan. 599, 28 P. 716; Enerwold v. Olsen, 39 Neb. 59, 57 N. W. 765; Parker v. Spencer, 61 Tex. 155. Contra: Borden v. State, 11 Ark. 519; Brown v. Tucker, 7 Colo. 30, 1 P. 221. A judgment may be shown to be void for want of juris- diction, not only by the record but by extrinsic evidence. — Larimer v. Knoyle, 43 Kan. 344, 23 P. 489; Jefferson v. Gallagher, (Okl.), 150 P. 1071. A void judgment may be attacked collaterally. — Riley v. Lemieux, 24 Colo. App. 184, 132 P. 699; Long v. Tighe, 36 Nev. 129, 133 P. 60; Waterman Lumber Supply Co. v. Robins, (Tex. Civ. App.), 159 S. W. 360; Evans, In re, 42 Utah 282. 130 P. 217. A recital in a judgment that a defendant was duly served is conclusive on collateral attack. — McDonald v. Ft. Smith & W. R. Co., 105 Ark. 5, 150 S. W. 135; Continental Gin Co. v. De Bord, 34 Okl. 66, 123 P. 159; Rice v. Woolery, 38 Okl. 199, 132 P. 817; Hopkins v. Cain, 105 Tex. 591, 143 S. W. 1145; Hollingsworth v. Wm. Cameron & Co., (Tex. Civ. App.), 160 S. W. 644. 386 JUDGMENTS Mere irregularities in the proceedings do not vitiate a judgment.— Shirran v. Dallas, 21 Cal. App. 405, 132 P. 454; Frey v. Superior Court, 22 Cal. App. 421, 134 P. 733; Cellu- lose Package Mfg. Co. v. Calhoun, 166 Cal. 513, 137 P. 238; Brown v. Whetstone, 25 Colo. App. 371, 138 P. 61; Pin- nacle Gold Min. Co. v. Popst, 54 Colo. 451, 131 P. 413; Daly v. Lahontan Mines Co., (Nev.), 151 P. 514; St. Anthony & Dakota Elev. Co. v. Martineau, 30 N. D. 425, 153 N. W. 416; Coblentz v. Cochran, 44 Okl. 158, 143 PJ 658; Lester v. Gatewood, (Tex. Civ. App.), 166 S. W. 389; Holt v. City of Cheyenne, 22 Wyo. 212, 137 P. 876. A domestic judgment rendered in a court of general juris- diction cannot be collaterally attacked unless the want of jurisdiction is apparent from the record. — Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 342; Davis' Estate, In re, 151 Cal. 318, 86 P. 183; Ballerino v. Superior Court, 2 Cal. App. 759, 84 P. 225; Hughes v. Cummings, 7 Colo. 138, 2 P. 289; Great West Min. Co. v. Woodmas of Alston Min. Co., 14 Colo. 90, 23 P. 908; Mitchell v. Insley, 33 Kan. 654, 7 P. 201; Gillilan v. Murphy, 49 Neb. 779, 69 N. W. 98; Union Trust Co. v. Atchison, 8 N. M. 159, 42 P. 89; Letney v. Marshall, 79 Tex. 513, 15 S. W. 586; Oliver v. Bordner, (Tex. Civ. App.), 145 S. W. 656; Hoagland v. Hoagland, 19 Utah 103, 57 P. 20. Contra: Ewing v. Mallison, 65 Kan. 484, 70 P. 369. A judgment is not open to collateral attack on the ground that it was obtained by fraud. — Morrill v. Morrill, 20 Or. 96, 25 P. 362; Murchison v. White, 54 Tex. 78. The recitals in the judgment showing service may be contradicted by facts shown by the original summons and return.— Boyle v. Oro Plata Min. & Mill. Co., 14 Ariz!. 484, 131 P. 155; Kavanagh v. Hamilton, 53 Colo. 157, 125 P. 512; Munson v. Pawnee Cattle Co., 53 Colo. 337, 126 P. 275. Arkansas. The certified copy of a decree alone is suffi- cient evidence that such a decree has been made. — Den- ton v. Roddy, 34 Ark. 642. California. Where there is no service of summons upon defendant the judgment is void and the defense of want of jurisdiction may be interposed in an action on the judg- JUDGMENTS 387 ment.— Hill v. City Cab & Transfer Co., 79 Cal. 188, 21 P. 728. Colorado. The right to attack a judgment for jurisdic- tional infirmity or for fraud is not confined to the com- plaint. It extends as well to the answer and replication. — Hallack v. Loft, 19 Colo. 74, 34 P. 568. When a domestic judgment of a court of general juris- diction is offered in evidence in another suit, it cannot be attacked collaterally unless the record proper shows that it is void for want of jurisdiction. — Kavanagh v. Ham- ilton, 53 Colo. 157, 125 P. 512. Kansas. Judgment based upon a false return of sum- mons may be impeached. — Martin v. Gray. 19 Kan. 458. A judgment resting upon the unauthorized appearance of an attorney is void. — Reynolds v. Fleming, 30 Kan. 106. In a habeas corpus case the entry of a judgment in the district court, entered in the ordinary way on the journals of that court and in all things apparently regular, cannot be overthrown by parol testimony that such entry was ordered and directed by one who had ceased to be a judge of that court, and while assuming to act outside of that district.— Watson, In re, 30 Kan. 753. Recitals in a judgment as to service on defendant are conclusive until the judgment is vacated or reversed in direct proceedings, and evidence to controvert them is not admitted in collateral proceedings, as in an action to try title.— Miller v. Miller, 89 Kan. 151. 130 P. 6S1. Nebraska. The facts showing jurisdiction must be stated in the judgment. — Vandervort v. Finnell, 96 Neb. 515, 148 N. W. 332. Oregon. A decree rendered without jurisdiction does not estop anyone. — Furgeson v. Jones, 17 Or. 204, 20 P. 842. Judgment cannot be attacked aliunde the record by parties or privies. — Morrill v. Morrill, 20 Or. 96, 25 P. 362. Texas. The presumption is in favor of the judgment of a court of general jurisdiction, unless the record shows that the court exceeded its jurisdiction. — Hill & Jahna v. Lofton, (Tex. Civ. App.), 165 S. W. 67. A personal judgment rendered against a non-resident upon service of citation, or nonresident notice, served upon 388 JUDGMENTS him without the state, is void. — San Bernardo Townsite Co. v. Hocker, (Tex. Civ. App.), 176 S. W. 644. The whole record will be examined to see if jurisdiction attached. — San Bernardo Townsite Co. v. Hocker, (Tex. Civ. App.), 176 S. W. 644. Washington. Recitals in a judgment, as to matters like service or appearance of defendant, are prima facie evi- dence of the facts therein stated.— Kline Bros. & Co. v. North Coast Fire Ins. Co., 80 Wash. 609, 142 P. 7. FRAUD AND COLLUSION. A judgment may be impeached for fraud by a stranger to the record. — Hackett v. Manlove, 14 Cal. 85; Hallack v. Loft, 19 Colo. 74, 34 P. 568; Murchison v. White, 54 Tex. 78; Whiteselle v. Texas Loan Agency, (Tex. Civ. App.), 27 S. W. 309; Bonner v. Ogilvie, 24 Tex. 237, 58 S. W. 1027. A judgment obtained by fraud is conclusive unless set aside in a direct proceeding. — People v. Perris Irr. Dist., 132 Cal. 289, 64 P. 399; Davis' Estate, In re, 151 Cal. 318, 86 P. 183; Simpson v. Kimberlin, 12 Kan. 579; Irwin v. Bexan County, 26 Tex. Civ. App. 527, 63 S. W. 550; Bud- long v. Budlong, 32 Wash. 672, 73 P. 783. A party to a judgment cannot impeach it or set it aside in a collateral proceeding on the ground that it was ob- tained by perjured testimony. — Bleakley v. Barclay, 75 Kan. 462, 89 P. 906; Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033; Word v. Schow, 29 Tex. Civ. App. 120, 68 S. W. 192; McDougall v. Walling, 21 Wash. 478, 58 P. 669. Colorado. In an action upon a judgment, a defense that it was procured through fraud is a collateral attack and cannot be maintained. — Harter v. Shull, 17 Colo. App. 162, 67 P. 911. Judgments may be attacked for fraud by answer or cross- complaint.— Relender v. Riggs, 20 Colo. App. 423, 79 P. 328. Kansas. The judgment of a court having jurisdiction of the parties and of the subject-matter cannot be attacked collaterally for fraud in obtaining it. — Morris v. Solder, 74 Kan. 892, 88 P. 69. Nebraska. A judgment obtained by collusion between a corporation and one of its stockholders may be set aside JUDGMENTS 389 by the others.— Gund v. Ballard, 73 Neb. 547, 103 N. W. 309. Texas. Fraud must be shown by extrinsic evidence, to be weighed by the court or jury trying the case, and would not constitute an objection to the introduction of the judg- ment in evidence.— Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882. As between parties and privies a judgment obtained by fraud is not absolutely void, but voidable. — Young v. Bank of Miami, (Tex. Civ. App.), 150 S. W. 1102. NOTE XXIII. (To Articles 39-47.) The law relating to the relevancy of judgments of Courts of Justice to the existence of the matters which they assert is made to appear extremely complicated by the manner in which it is usually dealt with. The method commonly em- ployed is to mix up the question of the effect of judgments of various kinds with that of their admissibility, subjects which appear to belong to different branches of the law. Thus the subject, as commonly treated, introduces into the Law of Evidence an attempt to distinguish between judg- ments in rem, and judgments in personam or inter partes (terms adapted from, but not belonging to, Roman law, and never clearly defined in reference to our own or any other .system); also the question of the effect of the pleas of autre- fois acquit, and autrefois convict, which clearly belong not to evidence, but to criminal procedure; the question of estop- pels, whioh belongs rather to the law of pleading than to thai "t" evidence; and the question of the effect given to the judgments of foreign Courts of Justice, which would seem more properly to belong to private International law These and other matters are treated of at great length In 2 Ph. Ev., 1-7M, ;in.l T. !•:. ss. 1480-1534, and in the note to the Duchess of Kingston's Case, In 2 S. I-. C. 777-880. Best (ss. 588-595) treats the matter more concisely. The text is confined to as complete a statement as I could make of the principles which regulate the relevancy of judg- ments considered as declarations proving the facts which they assert, whatever may be the effect or the use to be made of those facts when proved. Thus the leading principle Btated in Article 10 is equally true of all judgments alike. Every judgment, whether it be in rem or inter partes, must and does prove what it actually effects, though the effects of different sorts of judgments differ as widely as the effects of different sorts of deeds. 390 JUDGMENTS There has been much controversy as to the extent to which effect ought to be given to the judgments of foreign courts in this country, and as to the cases in which the courts will refuse to act upon them; but as a mere question of evidence, they do not differ from English judgments. The cases on foreign judgments are collected in the note to the Duchess of Kingston's Case, 2 S. L. C. 813-845. There is a convenient list of the cases in R. N. P. 201-203. The cases of Godard v. Gray, L.. R. 6 Q. B. 139, and Castrique v. Imrie, L. E. 4 R. & I. A. 414, are the latest leading cases on the subject. Article 47. foreign judgments. The provisions of Articles 40-46 apply to such of the judgments of Courts of foreign countries as can by law be enforced in this country, and so far as they can be so enforced, (a) FOREIGN JUDGMENTS. Full Faith and Credit. In determining the faith and credit to be given to the proceedings of the courts of a sister state under the fed- eral constitution and acts of congress, the question of the jurisdiction of the court of the sister state is always open to inquiry.— Thum v. Pyke, 8 Ida. 11, 66 P. 157; Chicago, R. I. & P. Ry. Co. v. Campbell, 5 Kan. App. 423, 49 P. 321; Commonwealth Mut. Fire Ins. Co. v. Hayden, 61 Neb. 454, 85 N. W. 443; Conant v. Deep Creek & Curlew Val. Irr. Co., 23 Utah 627, 66 P. 188. It was not the purpose of Const. U. S., art. 4, § 1, de- claring that full faith and credit shall be given to the judgments of a sister state, to give to such judgments a more conclusive effect when sought to be enforced in an- other state than they would be entitled to in the state a The cases on this subject are collected in the note on' the Duchess of Kingston's Case, 2 S. L. C. 813-845. A list of the cases will be found in R. N. P. 221-223. The last leading cases on the subject are Godard v. Gray, L>. R. 6 Q. B. 139, and Castrique v. Imrie, L. R. 4 E. & I. App. 414. See, too, Schisby v. Westenholz, L. R. 6 Q. B. 155, and Rousillon v. Rousillon, L. R. 14 Ch. Div. 370. JUDGMENTS 391 where rendered.— Culp, In re, 2 Cal. App. 70, 83 P. 89; Babcock v. Marshall, 21 Tex. Civ. App. 145, 50 S. W. 728. Kansas. A judgment rendered by a court of another state may be pleaded as a bar to an action for the same cause in this state, though pending before the foreign judgment was rendered. — Union Pac. Ry. Co. v. Baker, 5 Kan. App. 253, 47 P. 563. Giving to the proceedings of a sister state the same faith and credit that are given to like proceedings by the courts of such sister state is a compliance with the pro- visions of the federal constitution and the act of congress requiring each state to give full credit to the judgments and judicial proceedings of the sister state. — Chicago, R. I. & P. Ry. Co. v. Campbell, 5 Kan. App. 423, 49 P. 321. Nebraska. A judgment rendered by a court of one state is entitled to full faith and credit in the courts of another state only to the extent that the jurisdiction appears or may be presumed. — Commonwealth Mut. Fire Ins. Co. v. Hayden, 61 Neb. 454, 85 N. W. 443. Oklahoma. It is no defense that the court of the sister state erred in its judgment. — Blumle v. Kramer, 14 Okl. 366, 79 P. 215. Want of Jurisdiction. The court of a foreign state is presumed to have juris- diction.— Cummings v. O'Brien, 122 Cal. 204, 54 P. 742; Hunter's Adm'r v. Ferguson's Adm'r, 13 Kan. 462; Wester- velt v. Jones, 5 Kan. App. 35, 47 P. 332. California. Jurisdiction of court of another state pre- sumed though no service shown. — Eickhoff's Estate, In re, 101 Cal. 600, 36 P. 11. It may be shown that no summons had been served in an action resulting in a judgment in another state. — Greenzweig v. Sterlinger, 103 Cal. 278, 37 P. 398. Texas. The burden is on the defendant to show want of jurisdiction of the court of a sister state, when it is offered against him. — Russell v. Butler, (Tex. Civ. App.), 47 S. W. 406. Wyoming. A judgment of a sister state may be impeached for want of jurisdiction. — Bank of Chadron v. Anderson, 6 Wyo. 518, 48 P. 197. 392 JUDGMENTS Fraud. Kansas. The defendant in an action brought in this state upon a judgment rendered in a sister state, may defend on the ground that he was induced to submit himself to the jurisdiction of the court of the sister state by fraud on the part of the plaintiff. — Abercrombie v. Abercrombie, 64 Kan. 29, 67 P. 539. Nebraska. Where judgment was taken in another state by fraud, such fraud can be shown as a defense to an action brought on such judgment in this state. — Keeler v. Elston, 22 Neb. 310, 34 N. W. 891. Texas. Fraud in the procurement of the foreign judg- ment may be shown. (Agreement to dismiss after settle- ment, and judgment taken after defendant had departed the state.) — Babcock v. Marshall, 21 Tex. Civ. App. 145, 50 S. W. 728. Wyoming. Fraud in procuring a judgment in a sister state may be interposed to an action thereon if it could have been a defense to an action upon the judgment in the state where rendered. — Bank of Chadron v. Anderson, 6 Wyo. 518, 48 P. 197. OPINIONS 393 CHAPTER V.* OPINIONS, WHEN RELEVANT AND WHEN NOT. Article 48. opinion generally irrelevant. The fact that any person is of opinion that a fact in issue, or "relevant or deemed to be relevant to the issue, does or does not exist is deemed to be irrelevant to the existence of such fact, except in the cases specified in this chapter. Illustrations. (a) The question is, whether A, a deceased testator, was sane or not when he made his will. His friends' opinions as to his sanity, as expressed by the letters which they ad- dressed to him in his lifetime, are deemed to be irrelevant. — 1 (b) [In an action for malicious prosecution, the question is, whether defendant related to his counsel, before insti- tuting the criminal prosecution, all the facts and circum- stances within his knowledge. A question put to defendant by his counsel, whether before the complaint was filed he detailed to his attorney all of the facts and circumstances so far as he knew or was able to learn at the time with reference to the matter, is properly excluded aa culling for a conclusion, the duty to infer which was the duty of the Jury.] — 2 (c) [A divorced husband brought habeas corpus to recover possession of a son in the custody of his former wife. Persons acquainted with the parties will not be allowed to testify as to which of the parents they consider the bet- ter qualified to have custody of the child.] — 3 (d) [The question is, whether or not it was the Intention of the grantor of conveyances to his granddaughters, abso- 1 Wright v. Doe d. Tatham, 7 A. & E. 313. 2 [Jensen v. Halstead, 61 Neb. 249, 85 N. W. 78.] 3 [State v. Ciroux, 19 Mont. 149, 47 P. 798.] •See Note at end of Chapter. 394 OPINIONS lute on their face, that they should be considered as advance- ments. Testimony of witnesses as to what they understood was the purpose and intention of the grantor in executing the deeds is inadmissible.] — 4 • (e) [The assured in a life policy was born out of wedlock. Testimony of a sister of his mother that a man named was his father is irrelevant as being mere opinion.] — 5 OPINIONS, WHEN RELEVANT. Nature of Opinion Evidence. "The later and changed theory (of opinions given in evi- dence), is that wherever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is^ superfluous, and thus an expert's opinion is received because and whenever his skill is greater than the jury's, while a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the infer- ence. The old objection is a matter of testimonial qualifica- tions, requiring personal observation; the modern one rests on considerations of policy as to the superfluity of the testi- mony. In the old sense, 'opinion' — more correctly, 'mere opinion,' — is a guess, a belief without good grounds; in the modern sense, 'opinion' is an inference from observed and communicable data." — 3 Wigmore Ev., sec. 1917. Montana. That a flat car is placed in front of a road en- gine by railroads to expedite the use of such engine in place of a switch engine, is a question of fact which may be testified to by railroad employes from their personal knowledge and observation, and such evidence is not opin- ion evidence. — Prosser v. Montana Cent. R. Co., 17 Mont. 372, 43 P. 81. In determining boundaries of conflicting mining claims, evidence as to whether or not a surveyor found the boun- daries without assistance, the condition of the monuments, whether readily found, or could be traced from one to an- other, are matters of fact and not opinions. — Bramlett v. Flick, 23 Mont. 95, 57 P. 869. 4 [McKnight v. Reed, 30 Tex. Civ. App. 204, 71 S. W. 318.] 5 [Mutual Life Ins. Co. v. Good, 25 Colo. App. 204, 136 P. 821.] OPINIONS 395 Nevada. As to which of two channels the water of a creek would flow in if unobstructed, may be testified to by per- sons from personal observation, and is not opinion evi- dence.— Winter v. Fulstone, 20 Nev. 260, 21 P. 201. Where, because they are unknown, it is impossible to apply fixed natural laws to a solution of the problem, courts must resort to the best means available of determ- ining, if possible, the truth of the case. Hence expert tes- timony may be considered, as well as facts established by the testimony of other witnesses, but a non-expert witness may not be permitted to testify directly to the ultimate facts in the case. — McLeod v. Miller & Lux, (Nev.), 153 P. 566. North Dakota. A witness should not be permitted to tes- tify as to his "understanding" of the terms of a contract to which he was not a party. — Mulroy v. Jacobson, 24 N. IX 354, 139 N. W. 697 Oregon. Opinions of witnesses are only allowable when from the nature of the case the facts cannot be stated or described in such a manner as to enable those whose duty it is to draw inferences and conclusions therefrom to form an accurate judgment respecting them, and no better evi- dence than such opinions is obtainable.— First Nat. Bank v. Fire Ass'n, 33 Or. 172, 53 P. 8; State v. Barrett, 33 Or. 194, 54 P. 807. Where negligence is alleged in the operation of cars up and down an incline, by permitting the signal system to get out of repair, and in the manner of moving cars, the testimony of the person operating the cars that they might have been operated in another and safer manner is evidence of facts, not inferences. — Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 102 P. 1016. Texas. As an exception to the rule excluding the con- clusions and opinions of a witness, common observers may testify as to the results of their observation, made at the time, in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to the jury. (Witness may state that a lady whom he saw alight from the running board of a street car 396 OPINIONS fell because she must have slipped.) — McCabe v. San An- tonio Traction Co., 39 Tex. Civ. App. 614, 88 S. W. 387. An opinion or conclusion involving both a question of law and of fact is inadmissible. — Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808; Houston, etc., R. Co. v. Haw- kins & Nance, (Tex. Civ. App.), 167 S. W. 190. An opinion may be admissible in evidence, but not a mere suspicion. — Galveston, H. & S. A. Ry. Co. v. Roemer, (Tex. Civ. App.), 173 S. W. 229. Wyoming. Where all the circumstances can be fully and adequately described, and are such that their effect can be estimated by all men, without special knowledge or train- ing, opinions of witnesses are not admissible. — Carney Coal Co. v. Benedict, 22 Wyo. 362, 140 P. 1013. Grounds for Admission. California. When the question to be determined is the result of the common experience of all men of ordinary education, or inference from certain facts, the conclusion or inference must be drawn by the jury; and the opinion of the witness cannot be received. — Parkin v. Grayson- Owen Co., 157 Cal. 41, 106 P. 210. Colorado. It is not true, as a legal proposition, that no one but an expert can give an opinion to a jury. From necessity of the case, testimony must occasionally be a compound of fact and opinion.— Hanna v. Barker, 6 Colo. 303. While the general rule is that the opinion of a witness is inadmissible except when the inquiry involves a ques- tion of skill or science, and the witness possesses a pe- culiar knowledge of the subject, acquired by study or ex- perience, there are well recognized exceptions to the rule, and among these exceptions are instances which involve a description or estimate of magnitude, size, dimension, velocity, value, etc., and when, from the nature of the subject under investigation, it i£ difficult or impossible to state with sufficient exactness, or in detail, the facts, with their surroundings, in such a manner as to produce upon the minds of the jury the impression that a personal obser- vation has produced upon the mind of the witness. In such cases it is permissible for the witness, who has had OPINIONS 397 the benefit of personal examination, to supplement the statement of facts detailed by him with his opinion or conclusion. (Estimates as to the extent the carrying capacity of a ditch was diminished by reason of inter- ference with the flow of water therein, caused by the change of its channel and obstructions placed therein by defendant, admitted.)— Denver, T. & Ft. W. Ry. Co. v. Pulaski Irr. Ditch Co., 19 Colo. 367, 35 P. 910. Opinions which are the result of experience and observa- tion, are admissible. — Askew v. People, 23 Colo. 446, 48 P. 524. Kansas. An exception to the rule that a witness may not give his individual opinion arises whenever the question at issue is outside of the knowledge and experience of ordinary jurors, or where it so partakes of the nature of science or trade as to require special and peculiar knowl- edge or skill in order to arrive at a correct conclusion, the opinions of experts are admissible. Another excep- tion, founded on necessity, under which the opinions of ordinary witnesses are received, arises where the facts which are made up of a great variety of circumstances, and a combination of appearances which, from the in- firmity of language, cannot be properly described, may be shown by a witness who has observed them, and, where the observation is such as to justify it, they may state the conclusion of their own minds. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the conditions or appearances of persons and things.- State v. Baldwin, 36 Kan. 1, 12 P. 318. Witnesses who are not experts may give their opinion upon stating the facts on which their opinion is based. — Atchison. T. & S F. U. Co. v. Miller, 39 Kan. 419, 18 P. 486. When opinion evidence is the best obtainable, it may be received. — Missouri & Kansas Tel. Co. v. Vandevort, 67 Kan. 269, 72 P. 771. Nebraska. Where the facts necessary to form an opinion can be placed before the jury, it is improper to allow the witness to testify except to such facts. — Read v. Valley Land & Cattle Co., 66 Neb. 423, 92 N. W. 622. 400 OPINIONS The opinions of those who are acquainted with the acts and conduct of a person whose mental soundness is in question are admissible, on the question of his sanity: California: Keithley's Estate, In re, 134 Cal. 9, 66 P. 5 (whether testator appeared rational). Kansas: Grimshaw v. Kent, 67 Kan. 463, 73 P. 92 (as to mental capacity of deceased at the time of entering into a contract). Nevada: State v. Lewis, 20 Nev. 345, 22 P. 241 (belief of witness as to sanity or insanity of accused, admitted). North Dakota: State v. Barry, 11 N. D. 428, 92 N. W. 809 (lay opinion of mental soundness admissible, when based on observed facts). Oklahoma: Queenan v. Territory, 11 Okl. 261, 71 P. 218 (witness may be asked whether certain acts, conduct and appearance testified to by him to have been shown by de- fendant impressed him as being rational or irrational). Utah: Christensen's Estate, In re, 17 Utah 412, 53 P. 1003 (opinion as to sanity or insanity). Washington: Higgins v. Nethery, 30 Wash. 239, 70 P. 489 (mental condition of testator at about the time will was made). Arkansas. Before the opinion of a non-expert witness on the subject of insanity or mental capacity can be made admissible, it must appear that such intimate and close relations have existed between the party alleged to be under disability and the witness as to fairly lead to the conclusion that his opinion will be justified from his op- portunities for observing the party. — Schuman v. State, 106 Ark. 362, 153 S. W. 611; Rogers v. Cunningham, (Ark.), 178 S. W. 413; Dewein v. State, (Ark.), 179 S. W. 346. ' California. One who is acquainted with a person may tes- tify as to his appearance at a given time, with reference to his being rational or irrational. — Holland v. Zollner, 102 Cal. 633, 36 P. 930. One who has known another for three months, seen him at least twice a day, heard him converse with others and observed his actions and conduct, may give his opinion as to such person's sanity. — People v. Vaughn, 14 Cal. App. 201, 111 P. 620. OPINIONS 401 Colorado. A witness may be permitted to give his opinion upon the question of a person's sanity, after stating facts upon which he bases it/ — Denver & Rio G. R. Co. v. Scott, 34 Colo. 99, 81 P. 763. Idaho. A non-expert may be as able as an expert to make clear mental comparisons between the acts and conduct of a man who was at a given time sane, sound, and per- fectly competent, and his acts at a time when he was laboring under mental disabilities. — Weber v. Delia Mount. Min. Co., 14 Ida. 404, 94 P. 441. Kansas. Persons knowing one whose sanity is in ques- tion may give their opinion as to his sanity or mental condition after relating the facts which they observed. — Baughman v. Baughman, 32 Kan. 538, 4 P. 1003. Nebraska.' A non-expert witness may, after detailing the facts and circumstances upon which he bases his opinion, give his opinion upon the question of sanity, but he is not permitted to express his opinion without disclosing the facts upon which it is based.— Shellenberger v. State, 97 Neb. 498, 150 N. W. 643. Nevada. Acquaintanceship of four months seeing a per- son every day, during such time observing his manner of speech and seeing him the day before and conversing with him the day after the commission of the crime of which he was accused, renders one competent to testify as to such person's sanity. — State v. Lewis, 20 Nev. 333, 22 P. 241. New Mexico. A non-expert cannot testify as to whether a person was insane or not. — Territory v. Padilla, 8 N. M. 570, 46 P. 346. Texas. One who shows an acquaintance with the person whose mental capacity is in Question, and a familiarity wi»h his general conduct, may testify that in his opinion such person is of sound mind without specifying the facts upon which he bases his belief. — Thornton v. McReynolds, (Tex. Civ. App.), 156 S. W. 1144. Value and Amount of Damages. California. The respective value of land with and without underground waters, supplying springs thereupon may be shown by a witness who has seen the land or knows its 400 OPINIONS The opinions of those who are acquainted with the acts and conduct of a person whose mental soundness is in question are admissible, on the question of his sanity: California: Keithley's Estate, In re, 134 Cal. 9, 66 P. 5 (whether testator appeared rational). Kansas: Grimshaw v. Kent, 67 Kan. 463, 73 P. 92 (as to mental capacity of deceased at the time of entering into a contract). Nevada: State v. Lewis, 20 Nev. 345, 22 P. 241 (belief of witness as to sanity or insanity of accused, admitted). North Dakota: State v. Barry, 11 N. D. 428, 92 N. W. 809 (lay opinion of mental soundness admissible, when based on observed facts). Oklahoma: Queenan v. Territory, 11 Okl. 261, 71 P. 218 (witness may be asked whether certain acts, conduct and appearance testified to by him to have been shown by de- fendant impressed him as being rational or irrational). Utah: Christensen's Estate, In re, 17 Utah 412, 53 P. 1003 (opinion as to sanity or insanity). Washington: Higgins v. Nethery, 30 Wash. 239, 70 P. 489 (mental condition of testator at about the time will was made). Arkansas. Before the opinion of a non-expert witness on the subject of insanity or mental capacity can be made admissible, it must appear that such intimate and close relations have existed between the party alleged to be under disability and the witness as to fairly lead to the conclusion that his opinion will be justified from his op- portunities for observing the party. — Schuman v. State, 106 Ark. 362, 153 S. W. 611; Rogers v. Cunningham, (Ark.), 178 S. W. 413; Dewein v. State, (Ark.), 179 S. W. 346. California. One who is acquainted with a person may tes- tify as to his appearance at a given time, with reference to his being rational or irrational. — Holland v. Zollner, 102 Cal. 633, 36 P. 930. One who has known another for three months, seen him at least twice a day, heard him converse with others and observed his actions and conduct, may give his opinion as to such person's sanity. — People v. Vaughn, 14 Cal. App. 201, 111 P. 620. OPINIONS 401 Colorado. A witness may be permitted to give his opinion upon the question of a person's sanity, after stating facts upon which he bases it. — Denver & Rio G. R. Co. v. Scott, 34 Colo. 99, 81 P. 763. Idaho. A non-expert may be as able as an expert to make clear mental comparisons between the acts and conduct of a man who was at a given time sane, sound, and per- fectly competent, and his acts at a time when he was laboring under mental disabilities. — Weber v. Delia Mount. Min. Co., 14 Ida. 404, 94 P. 441. Kansas. Persons knowing one whose sanity is in ques- tion may give their opinion as to his sanity or mental condition after relating the facts which they observed. — Baughman v. Baughman, 32 Kan. 538, 4 P. 1003. Nebraska.. A non-expert witness may, after detailing the facts and circumstances upon which he bases his opinion, give his opinion upon the question of sanity, but he is not permitted to express his opinion without disclosing the facts upon which it is based. — Shellenberger v. State, 97 Neb. 498, 150 N. W. 643. Nevada. Acquaintanceship of four months seeing a per- son every day, during such time observing his manner of speech and seeing him the day before and conversing with him the day after the commission of the crime of which he was accused, renders one competent to testify as to such person's sanity. — State v. Lewis, 20 Nev. 333, 22 P. 241. New Mexico. A non-expert cannot testify as to whether a person was insane or not. — Territory v. Padilla, 8 N. M. 570, 46 P. 346. Texas. One who shows an acquaintance with the person whose mental capacity is in question, and a familiarity w'.h his general conduct, may testify that in his opinion such person is of sound mind without specifying the facts upon which he bases his belief. — Thornton v. McReynolds, (Tex. Civ. App.), 156 S. W. 1144. Value and Amount of Damages. California. The respective value of land with and without underground waters, supplying springs thereupon may be shown by a witness who has seen the land or knows its 402 OPINIONS character and condition, or the market value of lands in the vicinity if such values have been established. — De Freitas v. Town of Suisun City, 170 Cal. 263, 149 P. 553. Colorado. In an action for damages to real property by the construction of a railroad, questions asked witness as to the value of the property or its rental value before the construction of the railroad, and its value afterwards, do not invade the province of the jury by calling for opinions as to the damages suffered. — Ft. Collins Dev. Ry. Co. v. France, 41 Colo. 512, 518, 92 P. 953. Kansas. In arriving at the compensation for a right of way, witnesses resident in the neighborhood, and familiar with the property, may testify as to its value, though not basing their opinions on sales of the same or similar prop- erty.— Kansas City & S. W. R. Co. v. Ehret, 41 Kan. 22, 20 P. 538; Kansas City & S. R. R. Co. v. Baird, 41 Kan. 69, 21 P. 227. Farmers who have orchards in the vicinity are compe- tent to testify as to the value of plaintiff's trees destroyed by fire.— Latham v. Brown, 48 Kan. 190, 29 P. 400. Amount of his damages to broom corn cannot be testified to by plaintiff. — Atchison, T. & S. F. R. Co. v. Wilkinson, 55 Kan. 83, 39 P. 1043. Montana. Witnesses in estimating the value of land may consider the uses to which it may be put. — Sweeney v. Montana Cent. Ry. Co., 25 Mont. 543, 65 P. 912. It is competent for an expert witness to base his opin- ion, as to value, upon a description of the article iri con- troversy. The admissibility of such opinion rests upon the same basis as an opinion given in answer to a hypo- thetical question incorporating a statement of facts, and this is unaffected by the exhibition of a similar article for comparison.— Sullivan v. Girson, 31 Mont. 274, 102 P. 320. On an issue of value of pasturage for sheep, one who has herded sheep for many years and familiar with the lands in question, was competent to give an opinion as to the value of the pasturage on such lands during a season — Herrin v. Sieben, 46 Mont. 226, 127 P. 323. OPINIONS 403 Nebraska. Plaintiff not permitted to testify to the amount of damage caused to her dress and other articles destroyed in transit.— Jameson v. Kent, 42 Neb. 412, 60 N. W. 879. Nevada. Witnesses may be allowed to give their opinions on questions of value, for the reason that the subject may not have fallen under the observation of the jury, and the inquiry is allowed, to prevent a failure of justice. — Alt v. California Fig Syrup Co., 19 Nev\ 118, 7 P. 174. North Dakota. Owner of furniture destroyed by fire may testify as to what it was worth. — Seckerson v. Sinclair, 24 N. D. 625, 140 N. W. 239. Texas. It is error to permit a witness to testify as to the value of property he has never seen, unless shown to be qualified to so testify. — Lenhelet v. Piper, (Tex. Civ. App.), 133 S. W. 480. A witness may testify as to the market value of cattle at a certain place, although he was never there. — San Antonio & A. P. Ry. Co. v. Miller, (Tex. Civ. App.), 137 S. W. 1194. Depreciation in market value of cattle caused by delay and rough handling during transportation may be testified to by competent witness. — St. Louis, B. & M. Ry. Co. v. Wood Bros., (Tex. Civ. App), 147 S. W. 283. Utah. The rule governing the competency of opinions is not so strictly applied to questions of value. — Salt Lake Inv. Co. v. Oregon Short Line R. Co., (Utah), 148 P. 439. Foreign Law. Arkansas. The law and practice of another state may be proven by depositions of persons skilled in the laws and familiar with the practice of such state. — Barkman v. Hopkins. 11 Ark. 157. California. Under § 1902 C. C. P., it is sufficient if a witness be skilled in the law of a foreign country. One whose duty it was, as a public officer, to become familiar with the laws of the country may testify as to what the provisions of the law are. — Faber's Estate, In re, 168 Cal. 491, 143 P. 7::7. Kansas. An attorney-at-law, practicing in a foreign state and admitted to practice in all the courts of that state, is 404 OPINIONS a competent witness to testify as to its laws. — Brenner v. Luth, 28 Kan. 581. It is admissible to prove the law of another state by persons learned therein. — Palmer v. Hudson River State Hospital, 10 Kan. App. 98, 61 P. 506. A lawyer, familiar with the statutes and decisions of another state, is competent to testify as to whether a chattel mortgage witnessed in a certain way is valid under the law of such state. — Woods County Union Bank v. Shore, 87 Kan. 140, 123 P. 880. Nebraska. The law of a sister state, when invoked in the determination of an action, and, so far at least as it is not statutory, is the proper subject of expert testimony. — Barber v. Hildebrand, 42 Neb. 400, 60 N. W. 594. Texas. Though parol evidence is not admissible to estab- lish the fact that certain paper evidences of title were sufficient to vest title under the laws of a former gov- ernment, yet when such testimony is given by one fami- liar with such laws, who was himself an alcalde who, in an official capacity, administered the law, it might be valuable as evidencing the previous contemporaneous con- struction of such law. — State v. DeLeon, 64 Tex. 553. Washington. A person learned in the law of a foreign state or country may give evidence as to what the law of that state or country is, but when the text of the law of a sister state is before the court, lawyers should "not be allowed to testify as to what the consensus of opinion of the bench and bar of such other state might be as to its construction. Its construction should be ascertained, if possible, from the courts of such state, otherwise the trial court should construe it. — Clark v. Eltinge, 38 Wash. 376, 80 P. 556. Opinion of Ownership. Ownership of personal property is a fact to which a wit- ness may testify. — Benson v. Files, 70 Ark. 423, 68 S. W. 493; Olson v. O'Connor, 9 N. D. 504, 84 N. W. 359; Ft. Smith & W. R. Co. v. Winston, 40 Okl. 173, 136 P. 1075; Hess v. South Dakota Cent. Ry. Co., 30 S. D. 538, 139 N. W. 334. OPINIONS 405 California. A husband may not testify that money which was used tor the payment of certain land was the separate property of the wife. — Eaton v. Locey, 22 Cal. App. 762, 136 P. 534. Kansas. A witness is not competent to testify whether he had ever parted with his interest in a farm. — Work v. Work, 90 Kan. 683, 136 P. 236. North Dakota. A question as to whether a bank exercised ownership over certain notes called for a conclusion and was inadmissible. — Red River Valley Nat. Bank v. Mon- son. 11 N. D. 423, 92 N. W. 807. Oklahoma. Ownership of personal property may be testi- fied to as a fact by a witness having requisite knowledge of the circumstances. — Jantzen v. Emanuel German Bap- tist Church, 27 Okl. 473, 112 P. 1127. South Dakota. Plaintiff may testify that property levied on belonged to her and not to the judgment debtor. — Hawley v. Bond. 20 S. D. 215. 105 N. W. 464. Testimony of a witness that he was the owner all the time of land that he had put in his wife's name, is inad- missible.— Kjolseth v. Kjolseth, 27 S. D. 80, 129 N. W. 752. Texas. A witness cannot testify as to who owned certain wood when seized on levy. — Cullers v. Gray, (Tex. Civ. Appi. 57 S. W. 305. Plaintiff may testify that she owned certain notes, where the whole issue of the case did not depend upon BDCta ownership. -O'Farrell v. O'Farrell. 56 Tex. Civ. App. 51. 119 S. W. S99. Sundry Topics. Arkansas. One fully Qualified from experience, may testify that he could toll from the sound of a railroad train that no effort was made to stop, although his view of the train was partially obscured.— St. Louis, I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S. W. 224. California. Witnesses may testify to their expression of belief that defendant was the person they had seen, though not positively and beyond a doubt identifying him. — Peo- ple v. Rolfe, 61 Cal. 540. The question being the state of health of plaintiff during the time he claimed benefits, witnesses who knew, met 406 OPINIONS and talked with him may state his physical appearance and apparent state of health. — Robinson v. Exempt Fire Co., 103 Cal. 1, 36 P. 955. One who has been engaged for fifteen years cultivating an orchard and attending to its water supply, may state that for certain seasons there was not enough water for proper irrigation of the orchard. — Thayer v. Tyler, 169 Cal. 671, 147 P. 979. Colorado. In an action for the value of an animal killed at a railroad crossing, a witness familiar with the sur- roundings was properly permitted to state how far on the track from the crossing he could see an animal in the high- way approaching it. — Rio Grande Western R. Co. v. Boyd, 44 Colo. 119, 96 P. 781. Idaho. The assistance of chemistry and the testimony of expert witnesses are not necessary to show the existence of blood, owing to the familiarity of all persons competent to testify as witnesses with its appearance; and it is only in cases where it is necessary to distinguish between the blood of a human being and that of the inferior animals that such expert evidence is necessary. — State v. Rice^ 7 Ida. 792, 66 P. 87. Kansas. Family resemblance is not a proper subject for expert or opinion evidence. — Shorten v. Judd, 56 Kan. 43, 42 P. 338. The effect of sickness upon the mental capacity may be shown by medical experts, but not that one is inca- pacitated to make a conveyance.— Coblentz v. Putifer, 87 Kan. 719, 125 P. 30. Nebraska. Questions of identity, handwriting, quantity, form, size, age, strength, heat, cold, sickness and health, pain and suffering and concerning various mental and moral aspects of humanity, such as disposition and temper, anger, fear, excitement, intoxication, veracity, general character, and other conditions and things, both moral and physical are subjects of opinions of non-expert witnesses derived from observation when, from the nature of the subject under investigation, no better evidence can be obtained.— McKennan v. Omaha & C. B. St. R. Co., 95 Neb. 643, 149 P. 826. OPINIONS 407 North Dakota. A witness may testify as to the results of what he saw, such evidence being a statement of facts. •N fZ Mnjpuis "A uosJ9>i09S— O^B B 3° 1° 8 » 8 P UB 9Sjno 0) D. 625, i40 N. W. 239. Oregon. Witnesses, except upon grounds of skill and science, are not allowed to give their opinions as evidence when they have no personal knowledge of the facts of the case.— Farmers' & T. Nat. Bank v. Woodell, 38 Or. 294, 61 P. 837. The likelihood of a wind arising being material, a wit- ness who has lived in the country many years, and familiar with climatic conditions, may testify that at that particular season a wind usually arose on the evening of a hot, sultry day, such as that under consideration. — Lieuallen v. Mos- grove, 37 Or. 446, 61 P. 1022. Texas. Witnesses may give their opinion of the age of a person, where the age is in issue. — Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; Simpson v. State, 45 Tex. Cr. R. 320, 77 S. W. 819. It does not require an expert, as commonly understood by the term, to testify whether certain liquor is whiskey. —Johnson v. State, (Tex. Cr. R.), 55 S. W. 818. Whether one was guilty of negligence in the operation of complicated machinery, is admissible. — Gammel-States- man Pub. Co. v. Monfort, (Tex. Civ. App.), 81 S. W. 1029. The substance of a conversation between others may be testified to by a witness although he cannot give the pre- cise words or details, but only his impression of it. — Leland v. Chamberlin, 56 Tex. Civ. App. 256, 120 S. W. 1040. Custom must be shown by direct testimony and not by opinion or reputation. — Standard Paint Co. v. San Antonio Hardware Co., (Tex. Civ. App.), 136 S. W. 1150. An opinion as to what cattle would weigh at destination, after shipment, may be given by a witness qualified from experience in shipping cattle. — Houston Packing Co. v. Dunn, (Tex. Civ. App.), 176 S. W. 634. Opinion of witness is relevant as to the probable yield of crops had they been properly irrigated. — Lone Star Canal Co. v. Brousaard, (Tex. Civ. App.), 176 S. W. 649. 408 OPINIONS Whether, judging from the tracks, horses were running or walking, is admissible. — Taylor v. State, (Tex. Cr. R.), 180 S. W. 242. Utah. Where the question of agency is directly involved, the witness' conclusion that he is the agent, is objection- able, but he may state facts and circumstances concerning himself and the alleged principal, calculated to indicate agency. — McCornick v. Queen of Sheba G. M. & M. Co., 23 Utah 71, 63 P. 820. Witness was detailed to replace a workman who had just been injured and was informed by him how the injury occurred. As to whether or not he appeared to realize danger, witness stated in testifying, that he appeared to realize no danger, and looked at witness in a disgusted way, as much as to say that witness knew nothing about it. This statement was held unobjectionable as a conclu- sion.— Fritz v. Western Union Tel. Co., 25 Utah 263, 71 P. 209. Good or bad health; a weak or strong voice; or a change in apparent bodily condition, may be testified to by non- experts. — Johnson v. Union Pac. R. Co., 35 Utah 285, 100 P. 390. Wyoming. That it would take an experienced man to tell by sounding whether a projecting portion of a coal vein would be likely to fall, is admissible. — Carney Coal Co. v. Benedict, 22 Wyo. 362, 140 P. 1013. Sources of Knowledge. Nevada. If a non-expert witness has had sufficient obser- vation to enable him to form a belief upon the question he is a competent witness. — State v. Lewis, 20 Nev. 333, 22 P. 241. Oklahoma. Testimony identifying the voice or handwrit- ing of another is necessarily a matter of opinion, but should not be received unless the witness first states facts which qualify him to form and express a reasonably re- liable opinion.— Blackburn v. State, 7 Okl. Cr. 578, 124 P. 1111. Oregon. An opinion as to value cannot be based exclu- sively on what the witness has been told that the article OPINIONS 409 had been sold for. — Oregon R. & N. Co. v. Eastlack, 54 Or. 196, 102 P. 1011. A witness whose only knowledge is derived from an ex- amination of the tracks made by it on the pavement, can- not state an opinion as to the speed of the automobile making such tracks. — Everart v. Fischer, 75 Or. 316, 147 P. 189. Texas. An opinion of a non-expert witness which does not rest upon facts stated by him, or is not acquired through the use of his senses, is not admissible. The witness may state the facts, but is not required to do so, so long as he shows that he had means and opportunity for knowledge. — Guerra v. San Antonio Sewer Pipe Co., (Tex. Civ. App.), 163 S. W. 669. Ultimate Issues of Case. It is error for an expert or other witness to give an opinion on the ultimate fact to be determined by the jury: California: Rawles v. Los Angeles Gas & Elec. Corp'n. 23 Cal. App. 455, 138 P. 369 (testimony of a remark made by a third person that "This is gross carelessness on the part of this party that dug this hole," inadmissible). Colorado: Smuggler Union Min. Co. v. Broderick, 25 Colo. 16, 53 P. 169 (as to safety of a stope in a mine). Kansas: Martin v. City of Columbus, 93 Kan. 79, 143 P. 421 (that a sidewalk crossing was not in proper condition, or what repairs were needed to make it safe); Healer v. Inkman, 94 Kan. 594, 146 P. 1172 (whether a wall was left safe ) . Nebraska: Central City v. Morquis, 75 Neb. 233, 106 N. W. 221 (whether crossing a bridge with a traction engine without taking certain precautions was proper) ; Gross v. Omaha & C. B. St. R. Co., 96 Neb. 390, 147 N. W. 1121 (whether a motorman had time or opportunity to stop a car). North Dakota: Tetrault v. O'Connor, 8 N. D. 15, 76 N. W. 225 (as to who was in possession, that being the matter in issue). Texas: Long v. Smith, (Tex. Civ. App.), 162 S. W. 25 (whether a dead mother's parents or the father living 410 OPINIONS with his mother were the most suitable parties to retain custody of the child). Washington: Anderson v. Seattle Park Co., 79 Wash. 575, 140 P. 698 (that a smooth concrete surface when wet would constitute a dangerous footing). California. Witness not permitted to give opinion in an- swer to an inquiry embracing whole merits of case. (That witness was working for a certain person, the question of employment being in itself in controversy.) — Winslow v. Glendale Light & Power Co., 164 Cal. 688, 130 Pa. 427. Colorado. Plaintiff's testimony that defendants, husband and wife, were co-partners, and the wife assumed respon- sibility over, and acted as manager of, the business, is in- admissible.— Kent v. Cobb, 24 Colo. App. 264, 133 P. 424. Kansas. A witness may testify that a machine is unsafe, where its mechanism is so complicated that the grounds of the opinion cannot be fully exhibited to the jury. — Wells v. Swift & Co., 90 Kan. 168, 133 P. 732. Montana. Where an expert testified to defects in the concrete work on a building, it was improper to ask him who, in his opinion, was to blame for such defects. — Piper v. Murray, 43 Mont. 230, 115 P. 669. Nebraska. It is error to permit an expert to give an opin- ion on the ultimate fact to be determined by the jury (whether it was necessary for deceased employe killed by accident, to do what he did do.) — Chicago, R. I. & P. Ry. Co. v. Holmes, 68 Neb. 826, 94 N. W. 1007. Nevada. Witnesses cannot be permitted to draw infer- ences and conclusions as to the danger or safety of a saw. — Konig v. Nevada-California-Oregon Ry., 36 Nev. 181, 135 P. 141. A non-expert witness may not be permitted to testify directly to the ultimate facts in the case.— McLeod v. Miller & Lux, (Nev.), 153 P. 566. Oklahoma. An opinion as to the amount of damages plaintiff sustained by his injuries, is inadmissible. — Chi- cago, R. I. & P. R. Co. v. Teese, 42 Okl. 188, 140 P. 1166. Texas. Testimony of a motorman that a street car could not be stopped in time to avoid an accident, is inadmis-' OPINIONS 411 sible. — El Paso Elec. Ry. Co. v. Davidson, (Tex. Civ. App.), 161 S. W. 937. Utah. An expert opinion may be founded on the case, as proved by other witnesses, but experts cannot give their opinions as to the general merits of the case, but only opinions upon the facts proved. — Mangum v. Bullion Beck & C. Min. Co., 15 Utah 534, 50 P. 834. Plaintiff's testimony as an expert as to what precautions should be taken by the city to properly guard an excava- tion into which his automobile was driven, is inadmissible. —Sweet v. Salt Lake City, 43 Utah 306, 134 P. 1167. Washington. Opinion of witness that a contract made with a railroad by an advance agent of a show was merged in a contract made by the traveling manager, is irrelevant. — Auditorium Theatre Co. v. Oregon-Washing- ton R. & Nav. Co., 77 Wash. 277, 137 P. 489. Wyoming. A witness may state his persuasion or belief as to an ultimate fact, when such persuasion or belief is founded on facts within his own knowledge, or comes under his personal observation. — Union Pacific Ry. Co. v. Gilland, 4 Wyo. 395, 34 P. 953. Article 49. opinions of experts on points of science or art. When there is a question as to any point of science or art, the opinions upon that point of per- sons specially skilled in any such matter are deemed to be relevant facts. Such persons are hereinafter called experts. The words "science or art" include all subjects on which a course of special study or experience is necessary to the formation of an opinion, (a) and amongst others the examination of handwrit- ing. a 1 S. L. C. 555, 7th ed. (note to Carter v. Boehm), 28 Vic, c. 18, s. 18. (3 Wigmore Ev., § 1933 et seq.) 412 OPINIONS When there is a question as to a foreign law the opinions of experts who in their profession are acquainted with such law are the only admis- sible evidence thereof, though such experts may- produce to the Court books which they declare to be works of authority upon the foreign law in question, which books the Court, having received all necessary explanations from the expert, may construe for itself, (b) It is the duty of the judge to decide, subject to the opinion of the Court above, whether the skill of any person in the matter on which evidence of his opinion is offered is sufficient to entitle him to be considered as an expert, (c) The opinion of an expert as to the existence of the facts on which his opinion is to be given is ir- relevant, unless he perceived them himself, (d) Illustrations. (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are deemed to be relevant. — 1 (b) The question is, whether A, at the time of doing a cer- tain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the questions whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which b Baron de Bode's Case, 8 Q. B. 250-267; Di Sora v. Phil- lips, 10 H. L. 624; Castrique v. Imrie, L. R. 4 E. & I. App. 434; see, too, Picton's Case, 30 S. T. 510-511. (3 Wigmore Ev., §§ 1952-1955.) c Bristow v. Sequeville, 6 Kx. 275; Rowley v. I.,. & N. W. Railway, L. R. 8 Ex. 221; In the Goods of Bonelli, L. R. 1 P. D. 69. d 1 Ph. 507; T. E. s. 1278. OPINIONS 413 they do, or of knowing that what they do is either wrong or contrary to law, are deemed to be relevant. — 2 (c) The question is, whether a certain document was writ- ten by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are deemed to be relevant. — 3 (d) The opinions of experts on the questions, whether in illustration (a) A's death was in fact attended by certain symptoms; whether in illustration (b) the symptoms from which they infer that A was of unsound mind existed; whether in illustration (c) either or both of the documents were written by A, are deemed to be irrelevant. (e) [The question is, whether it was necessary and con- venient for defendant to sound a whistle at stated hours to notify its employes in the shops to commence and quit work. The opinions of master mechanics as to whether it was thus necessary is irrelevant.] — 4 (f) [Plaintiff sued for injuries received while hauling trucks with a horse furnished by his employer, the horse be- coming unmanageable. Testimony of expert witnesses that in their opinion the horse was not a safe one for the work is inadmissible, as this was the ultimate question to be determined by the jury.] — 5 (g) [The question is, whether the keeping of cows in con- nection with a hotel is unprofitable. The opinion of a person as an expert on the subject is in- admissible, it being a matter of general knowledge.] — 6 (h) [The question is, in an action for damages for death, alleged to have been caused by defendant's train breaking through a trestle, what would be the effect of the unsound- ness of any of the timbers supporting the trestle. The opinion of an expert as to the effect is irrelevant.] — 7 (i) [The question is, whether vibrations caused by running trains over a liigh trestle will loosen the nails with which it is put together. The opinion of an expert upon this matter is relevant.] — 8 1 R. v. Palmer (passim). See my "Gen. View of Crim. Law," 357. 2 R. v. Dove (passim). Gen. View Crim. Law, 391. 3 28 Vict., c. 18, s. 8. 4 [Powell v. Nevada, C. & O. Ry., 28 Nev. 40, 78 P. 978.] 5 [Marks v. Columbia County Lumber Co., 77 Or. 22, 149 P. 1041] 6 [Smith v. Stevens, 33 Colo. 427, 81 P. 35.] 7 [Bowen v. Sierra Lumber Co., 3 Cal. App., 312, 84 P. 1010.] 8 [Id] 414 OPINIONS OPINIONS OF EXPERTS. Qualification as Expert. California. Questions as to the rate of speed at which cars or other vehicles may travel, strictly speaking, do not constitute a subject of expert testimony, nor come within the provisions of § 870, subdivision 9, C. C. P.; but where it appears that a witness has experience in ob- serving and noting speed at which vehicles have been drawn, his testimony, not to qualify him as an expert, but to show that he had been in the habit of making observa- tions of the speed at which racing horses traveled and tending to show that he was better able to form a more reasonable judgment as to the rate of speed of the car in question than he otherwise would have been, was prop- erly admitted. — Kramm v. Stockton Elec. R. Co., 22 Cal. App. 737, 136 P. 523. Texas. In the absence of an attack upon the professional reputation, skill, and ability of an expert witness, testi- mony that he was, or bore the reputation of being, com- petent and skillful in his profession, is inadmissible. — Missouri, K. & T. Ry. Co. v. Burk, (Tex. Civ. App.), 162 S. W. 457. Grounds for Admission. Arkansas. The opinions of experts are admissible on the ground that they are presumed to have acquired more skill and knowledge, and are more capable of forming a correct opinion than inexperienced persons. — American Bauxite Co. v. Dunn, (Ark.), 178 S. W. 934. California. Matters not coming within the common knowl- edge and experience of men may be testified to by wit- nesses experienced or having special knowledge thereof, because such witnesses would be assumed to be nearer correct in their conclusions than men of no more than or- dinary experience. — People v. Lovren, 119 Cal. 88, 51 P. 22. Where the question is such that it cannot be assumed that an ordinary person has such knowledge or experience as would qualify him to determine it intelligently, expert evidence is necessary. — People v. Camp, 26 Cal. App. 385, 147 P. 95. OPINIONS 415 Witnesses .skilled in any science, art, trade, or occupa- tion may be permitted to give their opinions as experts, as such witnesses are supposed, from their experience and study, to have peculiar knowledge upon the subjects which jurors generally have not. — Vallejo & N. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 P. 238; People v. Camp, 26 Cal. App. 385, 147 P. 95. Where the question is such that it cannot be assumed that an ordinary person has such knowledge or experience as would qualify him to determine it intelligently, expert evidence is necessary.— People v. Camp, 26 Cal. App. 385, 147 P. 95. Colorado. A question of science, skill, and experience, is proper for the opinion of experts, based, if necessary, upon a hypothetical question properly framed. — Colorado Mid. Ry. Co. v. O'Brien, 16 Colo. 219, 27 P. 701. An expert is one who has superior knowledge of a sub- ject and is therefore able to afford the tribunal having the matter under consideration a special assistance, and his knowledge may have been acquired by professional, scien- tific, or technical training or by practical experience in some field of human activity conferring on him a special knowledge not shared by man in general. — Bradford v. Peo- ple, 22 Colo. 157, 43 P. 1013. Idaho. It is only where there is a doubt as to whether the blood is that of a human being or that of some inferior animal that the aid of expert witnesses is necessary. — State v. Rice, 7 Idaho 762, 66 P. 87. Kansas. Expert evidence is admissible in proof of matters not clearly falling within the range of common experience or observation.— State v. Walke, 69 Kan. 183, 76 P. 408. If a witness has acquired peculiar knowledge or skill, by experience, observation, or practice, on a subject with which the mass of mankind is not supposed to be ac- quainted, he may give his opinion on it. — Warfield v. Mor- gan, 86 Kan. 524, 121 P. 489; State v. Nordmark, 84 Kan. 628, 114 P. 1068. The purpose of expert testimony is to advise the jury concerning a matter which may not be determined by the concrete facts of the case, or from such facts in connec- 416 OPINIONS tion with their own knowledge in common with the rest of mankind.— Coblentz v. Putifer, 87 Kan. 719, 125 P. 30. Montana. As a general proposition there are two classes of cases in which expert testimony is admissible. Those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If, in such cases, the jury with all the facts before them can form a conclu- sion thereon, it is their sole province to do so. To the other class belong those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scien- tific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. — Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 113 P. 467. Section 7887, Rev. Code, means that an expert witness may give his opinion upon, or about, a question of science, art, or trade. — Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 113 P. 467. Nebraska. If there is any element of science, or skill, in a matter under investigation, it is not reversible error to admit expert testimony thereon, even though the element of science is slight.— Clawson v. State, 96 Neb. 499, 148 N. W. 524. New Mexico. The ground upon which expert evidence is admissible is that the witness has peculiar knowledge or experience not common to the world. — Miera v. Territory, 13 N. M. 192, 81 P. 586. North Dakota. Expert testimony is admissible in many cases because the subject of the litigation relates to or involves matters which human kind in general are incom- petent to form or offer opinions on, and it becomes neces- sary to call upon those who have made a special study of the subject under consideration. — Hintz v. Wagner, 25 N. D. 110, 140 N. W. 729. OPINIONS 417 Oklahoma. An expert witness is one whose possession of special knowledge renders his opinion admissible upon a state of facts within his specialty, without regard to the manner in which the facts are established, and without requiring that they should have come, in whole or in part, under the personal observation of the witness. On the other hand, the sole ground upon which a witness may give an opinion as to matters of ordinary knowledge, is that they not only came within his personal observation, but that they come into proof so blended with the opinion to which they give rise that it is receivable in proof as a substitute for a specification of the host of circumstances that called it forth. Every business or employment which requires peculiar knowledge or experience and which has a certain class of persons devoted to its pursuit, is included in the term "art or trade"; and any person who, by study and experience, has acquired this peculiar knowledge or practical skill may be allowed to give in evidence his opin- ions upon matters of technical knowledge and skill. — Miller v. State, 9 Okl. Cr. 255, 131 P. 717. Witnesses having special knowledge of matters in issue of which an ordinary person would know nothing, should be allowed to give their opinions. — Great Western Coal & Coke Co. v. Malone, 39 Okl. 693, 136 P. 403. When conditions are such that the jury cannot under- stand just what the facts are, or in cases where they may be materially enlightened as to what facts existed, experts should be allowed to testify. — Henry v. Morris & Co., 42 Okl. 13, 140 P. 413. Oregon. Expert testimony is employed where a question of science, art, or trade, is involved, and the person as- severating is specially skilled therein; it is not sufficient to warrant its introduction that the witness may know more of the subject of inquiry, and may better comprehend and understand it, than the jury, but the Inquiry must relate to some one of the subjects wherein skill imparts a su- perior knowledge, which persons of average intelligence may not be presumed to possess. — Nutt v. Southern Pacific Co., 25 Or. 291, 35 P. 653; First Nat. Bank v. Fire Ass'n, 33 Or. 172, 53 P. 8. 418 OPINIONS Opinions of witnesses are only allowable on the ground of necessity, because the facts cannot be presented or depicted precisely as they appear to the witness, and it is impracticable, from the nature of the subject, for him to relate the facts without supplementing their description with his conclusions.— State v. Barrett, 33 Or. 194, 54 P. 807. Opinion of experts respecting a subject-matter about which persons of common knowledge, having no particular training or special study, such as the jury, are capable of forming accurate opinions and deducing correct conclu- sions, is not admissible. — Farmers* & T. Nat. Bank v. Woodell, 38 Or. 294, 61 P. 837. Common and ordinary methods of procedure may be parts of common knowledge, yet, in some instances, there may be a scientific side to the question and matters may arise involving technical knowledge outside the domain of the average jury. In such cases it is permissible to permit skilled witnesses to express opinions to aid the jury in arriving at a correct decision, but caution must be exercised to prevent such witnesses from trenching upon the province of the jury, and from expressing opinions upon abstract questions of science having no proper rela- tion to the facts in controversy.— Netter v. Edmunson, 71 Or. 604, 143 P. 636. South Dakota. The ground upon which expert testimony is permitted is that in a great variety of cases where the subjects under investigation are wholly unfamiliar to the court and jury there would be no adequate mode of arriv- ing at any satisfactory conclusion, if expert testimony were rejected.— Thompson v. Reed, 29 S. D. 85, 135 N. W. 679. Utah. Where the subject-matter of the inquiry is of such a character as to lie within the common experience of men moving in the ordinary walks of life, opinions of experts are inadmissible. — Fritz v. Western Union Tel. Co., 25 Utah 263, 71 P. 209. Washington. If a witness is shown to have peculiar skill and knowledge concerning the subject of the inquiry gained by observation, personal experience, or study, not pos- sessed by men in the common walks of life, he is an expert OPINIONS 419 and competent to give an opinion. — State v. Smails, 63 Wash. 172, 115 P. 82. Medical and Surgical Matters. Arkansas. Physicians may base opinions upon what may be termed the clinical history of the case, as well as excla- mations of the injured party, and other verbal indications of pain and inability of the party to handle himself, where there are no outward indications of injury. — Biddle v. Riley, 118 Ark. 206, 176 S. W. 134; Prescott & N. W. Ry. Co. v. Thomas, 114 Ark. 56, 167 S. W. 486. But a physician cannot give his opinion of his patient's bodily condition from a history of his case related to the physician by the patient. — St. Louis, I. M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S. W. 494. California. To show the position of a wound and the course of the bullet causing same, a physician who had ex- amined the body may state the course of the bullet from the time of its entrance into the body to where it struck a bone and its course was changed. — People v. Fossetti, 7 Cal. App. 629, 95 P. 384. Experts may testify as to the means which might have been employed in producing wounds upon a human body. —People v. Sampo, 17 Cal. App. 135, 118 P. 957. Colorado. What is or is not proper practice in examina- tion and treatment, or the usual practice and treatment of a patient by a physician, is a question for experts, and can be established only by their testimony. — McGraw v. Kerr. 23 Colo. App. 163, 128 P. 870. . Kansas. A medical expert witness is not confined wholly to his personal experience in the treatment of men, but his opinions formed in part from the reading of works prepared by persons of acknowledged ability may be given in evidence, so he may refresh his recollection by refer- ence to standard authorities; but the judgment or opinion which he gives must be his own, and not merely that of the author.— State v. Baldwin, 36 Kan. 1, 12 P. 318. That a woman was quick with child may be shown from the result of an examination after her death. — State v. Hatch, 83 Kan. 613, 112 P. 149. 420 OPINIONS It is proper to take opinions of experts as to the effect sickness would have upon the mental capacity of a per- son, but opinions as to capacity of such person to make a conveyance of property is incompetent. — Coblentz v. Puti- fer, 87 Kan. 719, 125 P. 30. To prove that a certain compound was administered to a person, witnesses may testify that the compound was of the same odor as that submitted to them for compari- son.— State v. Buck, 88 Kan. 114, 127 ?. 631. Montana. Where a physician gives his opinion that by means of a surgical operation injury to a person could be cured, he may not be asked if he had offered to perform such operation without charge. — Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 P. 673. Nebraska. An expert medical witness may examine a plaintiff suing for malpractice and state what ligaments will need to be severed in removing a bone in his hand, also whether there was any method of cure without re- moving the bone. — Johnson v. Winston, 68 Neb. 425, 94 N. W. 607. Oregon. A physician having examined a wound and de- scribed it to the jury may state what effect it would have on the mental condition of the person receiving it, and the question need not be propounded in hypothetical form. —State v. Megorden, 49 Or. 259, 88 P. 306. Texas. A graduated chemist of several years' experience who made an analysis of the stomach of deceased, may testify as to how much strychnine sulphate would pro- duce death, and as to the amount thereof he found by means of the investigation. — Hand v. State, (Tex. Cr. R.), 179 S. W. 1155. A physician may give his opinion whether or not the weapon described would be a deadly weapon in the hands of a person the size of defendant by striking another in the temple while he was asleep. — Wilganowski v. State, (Tex. Cr. R.), 180 S. W. 692. An expert in giving an opinion as to sanity may take into consideration the acts, conduct and demeanor of de- OPINIONS 421 fendant during the trial on a criminal charge. — Mikeska v. State, (Tex. Cr. R.), 182 S. W. 1127. Washington. A physician may testify as to the general effect of a drug upon the mental faculties, but cannot give an opinion as to its effect on the veracity of one addicted to its use.— State v. Robinson, 12 Wash. 491, 41 P. 884. A physician who has examined a party may testify as an expert basing his opinion on the result of the exam- ination as well as upon subjective symptoms including in- voluntary expressions of present pain and suffering, but statements made to the physician by such party and such of his acts as were within control of his will power should be excluded. — Myhra v. Chicago, M. & P. S. Ry. Co., 62 Wash. 1, 112 P. 939. A physician who examined the wound on deceased after death was properly allowed to state how far deceased could have walked after receiving the wound. — State v. Drum- mond, 70 Wash. 260, 126 P. 541. Sundry Matters. Arizona. A person long familiar with the conduct of mares and colts is competent to express an opinion as to whether a colt belonged to a certain mare which it had been following. — Miller v. Territory, 9 Ariz. 123, 80 P. 321. From experience and observation derived from shoot- ing large animals, a person may give his opinion as to whether a wound upon a human being was made by the entrance or exit of a bullet. — Spence v. Territory, 13 Ariz. 20, 108 P. 227. Arkansas. A witness who had been cashier of banks for many years could testify as to the custom of the banking business in other states as to discounting negotiable paper, on an issue whether such paper was purchased in due course and good faith. — Holland Banking Co. v. Booth, (Ark.), 180 S. W. 978. California. Whether a crack in machinery could not have been discovered by the exercise of ordinary care and pre- caution, is not permissible as expert testimony. — Pacheco v. Judson Mfg. Co., 113 Cal. 541, 5 P. 833. 422 OPINIONS Where, as tending to show unsoundness of mind, evi- dence is introduced to show the absurdity of some of the ideas of the alleged incompetent, expert evidence may be received tending to show that such ideas are not chimeri- cal.— People v. Goldsworthy, 130 Cal. 600, 62 P. 1074. One experienced in cultivating an orchard may testify as to the sufficiency of water for its irrigation. — Thayer v. Tyler, 169 Cal. 671, 147 P. 979. An expert in such matters may testify as to the re- spective values of land with and without underground waters supplying springs on the land. — De Freitas v. Sui- sun, 170 Cal. 263, 149 P. 553. Kansas. Farmers who reside within the vicinity of a par- ticular farm, who know its capabilities, and who can tes- tify that they know its value, may. give their opinions in evidence with respect to its value; and such opinions are competent evidence, although such farmers may not know of any sale of any farm in that vicinity.— Kansas City & S. W. R. Co. v. Ehret, 41 Kan. 22, 20 P. 538. On an issue as to the value of farm land taken for right- of-way, farmers living in the neighborhood having knowl- edge of the property for years, its location advantages, character of soil and its market value as compared with nearby lands, may testify as to the damages. — Chicago, K. & W. R. Co. v. Cosper, 42 Kan. 561, 22 P. 634. But though such witnesses reside in the vicinity and are acquainted with the property, yet cannot testify to its mar- ket value, they cannot give an opinion as to the deprecia- tion in value by the taking of the right-of-way. — Ottawa, O. C. & C. G. R. Co. v. Fisher, 42 Kan. 675, 22 P. 713. A witness may identify a drug or compound by compari- son of the odor.— State v. Buck, 88 Kan. 114, 127 P. 631. Oklahoma. What range a bullet will take after coming in contact with, or entering the human body, is not a prop- er subject for expert evidence; nor is the position of the body when the wound was received, based upon the range of the bullet after it entered the body. — Price v. United States, 2 Okl. Cr. 449, 101 P. 1036. OPINIONS 423 Opinion evidence of race is admissible. — Cole v. Dis- trict Board, 32 Okl. 692, 123 P. 426. Whether or not one was guilty of negligence in the operation of complicated machinery may be testified to by an expert.— Burk v. Hobart M. & E. Co., (Okl.), 150 P. 458. Texas. The opinions and explanations of men familiar with, and experts in, the operating and handling compli- cated machinery are admissible as to whether or not one was guilty of negligence in the operation of such ma- chinery. — Gammel-Statesman Pub. Co. v. Monfort, (Tex. Civ. App.), 81 S. W. 1029. Long continued familiarity with and experience in the use of dynamite as an explosive will qualify a witness to testify as to the effect an explosion would have upon a human being near the scene of explosion. — Houston E. & W. T. Ry. Co. v. Cavanaugh, (Tex. Civ. App.), 173 S. W. 619. Texas. Whether horses that made the tracks were walk- ing or running, may be shown by a witness accustomed to riding horses in practically every way, from an examina- tion of the tracks.— Taylor v. State, (Tex. Cr. It.), 180 S. W. 242. Utah. That letters were written on the same typewriter may be shown by expert testimony from comparison. The machine may also be identified by the writing. — State v. Freshwater, 30 Utah 442, 85 P. 447. Hypothetical Questions. Arizona. There must be evidence tending to prove the material facts assumed in a hypothetical question before an answer thereto may be permitted. — Mayhew v. Brislin, 13 Ariz. 102, 108 P. 253. Arkansas. A hypothetical question, the answer to which is intended to discredit the opinion of another, should em- brace all the undisputed facts upon which such opinion was based.— Williams v. Fulkes, 103 Ark. 196, 146 S. W. 480. A hypothetical question should include undisputed facts or circumstances disclosed by the adverse party's evidence 424 OPINIONS bearing upon the matter in issue. — Bell v. State, (Ark.), 180 S. W. 186. Hypothetical questions must fairly reflect the evidence, otherwise the opinion can have no probative force. The hypothetical case must embrace undisputed facts that are essential to the issue. All facts which the evidence tends to prove may be assumed as proved. The opinion may be based upon the whole or any part of the evidence, and upon facts which the party claims the evidence shows. — Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250; Bell v. State, (Ark.), 180 S. W. 186. Colorado. A hypothetical question must be based upon the hypothesis of the truth of all the evidence, or on a hypothesis especially framed of certain facts assumed to have been proved. — Gottlieb v. Hartman, 3 Colo. 53. In propounding hypothetical questions to experts, coun- sel are not confined to facts admitted or absolutely proved, but may assume for the purposes of the question any state- ment of facts which the evidence tends to establish. — Jordan v. People, 19 Colo. 417, 36 P. 218. A hypothetical question assuming facts not established by evidence, and which no evidence tends to establish, must be excluded.— Butler v. Phillips, 38 Colo. 378, 393, 88 P. 480; Burnham v. Grant, 24 Colo. App. 131, 134 P. 254. Idaho. A hypothetical question must be based on facts admitted or established by the evidence, or both. — McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478. On cross-examination of an expert witness, a hypotheti- cal question, if based on some evidence in the case which would justify it, may be answered. — Trull v. Modern Wood- men, 12 Idaho 318, 85 P. 1081. Kansas. An expert cannot give his opinion when the facts are controverted, but a hypothetical question should be put to him.— Tefft v. Wilcox, 6 Kan. 46. The question should not be so framed as to permit the witness to roam through the evidence for himself, and gather the facts as he may consider them to be proved, and OPINIONS 425 then state his conclusions concerning them. — Western Union Tel. Co. v. Morris, 67 Kan. 410, 73 P. 108. Where an expert opinion has been based upon a hypo- thetical question, some of the facts therein assumed may be omitted from a second hypothetical question in cross- examination.— State v. Buck, 88 Kan. 114, 127 P. 631. Montana. It is only a person skilled in the particular science, art, or trade concerning which the investigation is had who can be permitted to give an opinion founded upon facts learned from other sources than his own obser- vation. Such person may hear facts detailed by other witnesses and express an opinion thereon; or the ques- tion may be put to him in hypothetical form, founded upon facts thus detailed.— State v. Peel, 23 Mont. 358, 59 P. 169; Trogdon v. Hanson Sheep Co., 49 Mont. 1, 139 P. 792. North Dakota. A hypothetical question should include the essential facts disclosed by the evidence. — Seckerson v. Sinclair, 24 N. D. 625, 140 N. W. 239. Texas. Counsel have the right to embody in their hypo- thetical questions the facts which in their judgment the evidence proves, and are not compelled to embrace therein the facts that the opposing litigant contends to be those established by the evidence. — Order of United Commercial Travelers of America v. Roth, (Tex. Civ. App.), 159 S. W. 17«. Utah. A hypothetical question should include the material facts in evidence, and should not assume facts which have not been proved, or do not, in truth, exist. — Nichols v. Oregon Short Line, 25 Utah 240, 70 P. 996. Facts Forming Basis of Opinion. California. Where a witness bases his opinion entirely upon incompetent and inadmissible matters or shows that such matters are the chief elements in the calculations, which lead him to such conclusions, it should be rejected. (Opinion of value of land for reservoir purposes based upon cost of proposed water works and probable income and profit from the works.) — San Diego Land & Town Co. v. Neale. 88 Cal. 50. 25 P. P77. 426 OPINIONS Where the opinion of an expert is asked upon facts not detailed in the question itself, but the witness is referred to the testimony of another for such facts, it should appear that the witness had heard the testimony. — Howland v. Oakland, etc., Ry. Co., 115 Cal. 487, 47 P. 255. Expert opinions cannot be based upon incompetent evi- dence. — James' Estate, In re, 124 Cal. 653, 57 P. 578. Colorado. An expert is not permitted to form his opinion about the evidence, and thereon base his statement. An opinion cannot be based upon the reading of a part of a stenographer's notes of the testimony of plaintiff. — Fair- banks, Morse & Co. v. Weeber, 15 Colo. App. 268, 62 P. 368. Kansas. An opinion as to the truth of a matter cannot be based upon the hearing of the testimony of a witness given upon another trial. — Wright v. Wright, 58 Kan. 525, 50 P. 444. A physician testifying as an expert, should not be al- lowed to base his opinion of the condition of the patient to any extent upon the statements of third parties, nor on what the family of the patient may have said. — Chicago, R. I. & O. Ry. Co. v. Sheldon, 6 Kan. App. 347, 51 P. 808. An expert may give his opinion based either upon facts testified to by others, or upon hypothetical questions, or, if a physician, upon an examination, but a physician cannot testify to conclusions arrived at from the history of the case given him by the patient or others, not based par- tially upon what he has been told of the case, and partially upon information obtained by an examination. A physician may testify to the condition of the patient as he found him, whether suffering from pain, and to utterances or exclamations of pain, and he may also give the patient's statement as to the location of the pain causing such ex- clamations. — Federal Betterment Co. v. Reeves, 73 Kan. 107, 84 P. 560. It was not error to reject the opinion of a physician as to the probability of plaintiff being ruptured by the acci- dent, who had heard the testimony of plaintiff as to the manner of his alleged injury, but who had not examined him.— City of Ottawa v. Green, 72 Kan. 214, 83 P. 616. OPINIONS 427 A question asking for an opinion, based upon a given hypothesis, or upon personal knowledge or both, is on« that a properly qualified witness may answer. — State v. Hatch, 83 Kan. 613, 112 P. 149; State v. Buck, 88 Kan. 114, 127 P. 631. Expert testimony may be based on the testimony of an- other witness whom the expert heard testify. — Mampe v. Kunkel, 95 Kan. 602, 148 P. 741. Nebraska. Where it affirmatively appears that some of the facts upon which a witness bases his opinion are un- known to him, it is not error to reject the opinion. — Fitch v. Martin, 84 Neb. 745, 122 N. W. 50. North Dakota. One who gives an opinion as to the mental capacity of another must show facts which are sufficient upon which to found a rational basis for the opinion. — State v. Barry, 11 N. D. 428, 92 N. W. 809; Dowd v. Mc- Ginnity, 30 N. D. 308, 152 N. W. 524. A medical expert cannot base his opinion upon the pa- tient's history of the case. — Hintz v. Wagner, 25 N. D. 110, 140 N. W. 729. Oregon. A surveyor's opinion as to the result of a sur- vey unsupported by details of the survey, both as to data upon which it was based and the manner of reaching the result, is not competent. — Gallagher v. Kelliher, 58 Or. 557, 114 P. 943. An expert witness may hase his opinion on testimony which he heard another witness give. — Latourette v. Miller, 67 Or. 141, 135 P. 327. Utah. An expert cannot base his opinion merely upon testimony heard by him, when there is a conflict in such testimony, yet, when the facts are within his own knowl- edge, and related by him, his opinion based wholly upon personal examination and knowledge, is admissible with- out having facts hypothetically stated. — Wells v. Davis, 22 Utah 322, 62 P. 3. Where opinions of experts are admitted they must be based upon something more tangible than mere conjec- ture, regardless of the character of the witness. — Neesley v. Southern Pac. Co., 35 Utah 259, 99 P. 1067. 428 OPINIONS Scope of Examination. California. An expert witness should not be examined as to specific facts in his examination in chief. — De Freitas v. Suisun, 170 Cal. 263, 149 P. 553. Nebraska. An expert witness called solely for the purpose of showing the nature and extent of an injury to plaintiff at the time it occurred, may not be called to testify as to his treatment of the plaintiff after the injury. — Svetkovic v. Union Pac. R. Co., (Neb.), 145 N. W. 990. South Dakota. After an expert has expressed his opin- ion as to the value of a defective piece of machinery and stated that in his opinion the defect could be repaired, he may be asked how much time or expense it would take to make the repairs. — Aultman Co. v. Ferguson, 8 S. D. 458, 66 N. W. 1081. Testing Knowledge. Kansas. Where an expert expressed an opinion that the writing submitted to him was genuine, and on cross-exam- ination gave his opinion that other writings submitted were also genuine, evidence that such other writings were spurious was held inadmissible. — Gaunt v. Harkness, 53 Kan. 405, 36 P. 739; Underwood v. Quantic, 85 Kan. Ill, 116 P. 361. Wyoming. The extent of the cross-examination of an ex- pert witness with reference to collateral matters, in order to test his knowledge, is within the discretion of the court. —Hollywood v. State, 19 Wyo. 493, 120 P. 471. Preliminary Question of Competency. Whether the witness has sufficient qualifications to tes- tify as an expert is a question largely in the discretion of the court.— Gila Valley, G. & N. Ry. Co. v. Lyon, 9 Ariz. 218, 80 P. 337; Ft. Smith & Van B. B. Dist. v. Scott, 103 Ark. 405, 147 S. W. 440; Howland v. Oakland Consol. St. Ry. Co., 110 Cal. 513, 42 P. 983; Rimmer v. Wilson, 42 Colo. 180, 93 P. 1110; Carscallen v. Coeur d'Alene & St. J. Trans. Co., 15 Idaho 444, 98 P. 622; Broquet v. Tripp, 36 Kan. 700, 14 P. 227; Watson v. Colusa-Parrot M. & S. Co., 31 Mont. 513, 79 P. 14; Meyers & Cox v. Western Union Tel. Co., (Neb.), 153 N. W. 558; State v. Lewis, 20 Nev. 333, OPINIONS 429 22 P. 241; Lynch v. Grayson, 5 N. M. 487, 25 P. 992; White- head v. Jefferson, (Okl.), 151 P. 681; Farmers' & T. Nat, Bank v. Woodell, 38 Or. 294, 61 P. 837; Hovey v. Sanders, (Tex. Civ. App.), 174 S. W. 1025; State v. Webb, 18 Utah 441, 56 P. 159; Czarecki v. Seattle & S. F. Ry. Co., 30 Wash. 288, 70 P. 750. Article 50. facts bearing upon opinions of experts. Facts, not otherwise relevant, are deemed to be relevant if they support or are inconsistent with the opinions of experts, when such opinions are deemed to be relevant. Illustrations. (a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is deemed to be rele- vant. — 1 (b) The question is, whether an obstruction to a harbor is caused by a certain bank. An expert gives his opinion that it Is not. The fact that other harbors similarly situated In other re- spects, but where there were no such banks — 2 — began to be obstructed at about the same time, is deemed to be relevant. 1 R. v. Palmer, printed trial, p. 124, &c. In this case (tried in 1856) evidence was given of the symptoms attending the deaths of Agnes Senet, poisoned by strychnine in 1845; Mrs. Serjeantson Smith, similarly poisoned in 1848, and Mrs. Dove, murdered by the same poison subsequently to the death of Cook, for whose murder Palmer was tried. 2 Folkes v. Chadd, 3 Doug. 157. 430 OPINIONS FACTS BEARING UPON OPINIONS OF EXPERTS. In General. Arkansas. Where a witness has made an estimate as to the market value of real estate, such valuation may be supported by evidence of its advantageous location for certain kinds of business or its desirability as choice resi- dence property. Evidence tending to rebut any facts which might appear to be derogatory to the estimated valuation, is admissible, but collateral issues should not be allowed to spring up and multiply. — Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792. California. Where an expert has given his opinion that the condition of a person might have been the result of certain acts constituting the crime charged, the exclusion of evidence tending to show that the condition of such person might have resulted from other causes, is error. —People v. Knight, (Cal.), 43 P. 6. Montana. An expert may base his opinion upon an as- sumed state of facts. It may be based upon testimony of another which the expert has heard. — Trogdon v. Hanson Sheep Co., 49 Mont. 1, 139 P. 792. North Dakota. Where an expert witness has given his opinion as to the cause of the physical condition of a party, it is reversible error to exclude evidence tending to show that the condition of the party might have been due to other causes. — State v. Apley, 25 N. D. 298, 141 N. W. 740. Oregon. Where an opinion is substantiated by a scientific work, such authority may be read in evidence to contra- dict the opinion.— Scott v. Astoria R. Co., 43 Or. 26, 72 P. 594. Texas. After an expert witness had testified that cinders escaping from a locomotive would fall to the ground with- in a certain distance, evidence that cinders had been known to be carried farther, is admissible.- — Missouri, K. & T. Ry. Co. v. Patterson, (Tex. Civ. App.), 164 S. W. 442. An opinion given by a medical expert relative to pains and suffering must be shown to have been founded on evidence in the case.- — Gulf, C. & S. P. Ry. Co. v. Loyd, (Tex. Civ. App.), 175 S. W. 721. OPINIONS 431 Upon an issue as to the value of cattle at a certain mar- ket at a given time, the printed reports of sales of such cattle at the market in question, during such time and upon which an expert based his opinion as to value, may be read in evidence. — Western Union Tel. Co. v. Gorman & W., (Tex. Civ. App.), 174 S. W. 925. Utah. Where a question asked an expert witness is based on facts in evidence the form of which is open to criticism, it is not prejudicial error to permit it to be answered, the subject being proper for expert opinions. — Mangum v. Bullion Beck & C. Min. Co., 15 Utah 534, 50 P. 834. Washington. Where an expert has given his opinion that the condition of a person might have been the result of certain acts constituting the crime charged, the exclusion of evidence tending to show that the condition of such per- son might have resulted from other causes, is error. — State v. Beaudin, 76 Wash. 306, 136 P. 137. Cross-Exa mi nation. California. One who has given an expert opinion as to the value of land, may properly testify on cross-examina- tion to matters which would influence him from the stand- point of a contemplating buyer in determining the value of land of the character of that under consideration. — Southern Pac. It. Co. v. San Francisco Sav. Union, 146 Cal. 290, 79 P. 961. Montana. After a witness has given his opinion as to the sanity of a person he may be asked on cross-examina- tion, Avhat he meant by insanity and unsoundness of mind. —Stat.' \ Peel, 2:\ Mont. 358, 59 P. 169. Nebraska. Where an expert gives an opinion as to the rental value of the property in question, he may be cross- mined concerning his knowledge, but may not give his opinion of rental values in the vicinity of such prop- erty. — Raapke & Katz Co. v. Schmoeller & M. Piano Cc 82 Neb. 716, 118 N. W. 652. Texas. To test the skill and knowledge of a medical ex- pert, after he has stated that he examined a person and from such examination was of the opinion that he was in normal condition, he may be asked if an injury might not 432 OPINIONS remain unnoticed for some time and then develop into serious injury. — Houston & T. C. Ry. Co. v. Fox, (Tex. Civ. App.), 156 S. W. 922. Wyoming. The extent of cross-examination with reference to collateral matters, in order to test the knowledge of an expert witness, is within the discretion of the court. An expert may be recalled to contradict opinions of experts in behalf of the adverse party. — Hollywood v. State, 19 Wyo. 493, 120 P. 471. Reading Scientific Works on Cross-Examination or in Contradiction. The general rule that books upon scientific subjects are not admissible in evidence except after an expert witness has referred to a particular work to sustain his opinion it may then be used to contradict him, is generally rec- ognized, but it is well established that the accuracy of the opinion may be tested on cross-examination by read- ing extracts from standard authorities and asking the witness whether he agrees or disagrees with them. A distinction must be made between the cross-examination for the purpose of showing his lack of reading and train- ing, and an attempt to overcome his evidence, or to sus- tain the theory of the party conducting the cross-examina- tion by reading the authorities to the jury. — Gallagher v. Market St. R. Co., 67 Cal. 13, 6 P. 869; McFadden v. Rail- way Co., 87 Cal. 469, 25 P. 681; Fisher v. Southern Pac. R. Co., 89 Cal. 399, 26 P. 294; Douglas v. Berlin D. W. & L. Co., 169 Cal. 28. 145 P. 535; Denver Tram. Co. v. Gawley, 23 Colo. App. 332, 129 P. 258; Osborn v. Carey, 28 Idaho 89, 152 P. 473; State v. Bowers, 97 Kan. 33, 154 P. 259; Hutchinson v. State. 19 Neb. 262, 27 N. W. 113; State v. Moeller, 20 N. D. 114, 126 N. W. 568; State v. Brunette. 28 N. D. 539, 150 N. W. 271; Kersten v. Great Nor. Ry. Co., 28 N. D. 3, 147 N. W. 787; Beadle v. Paine, 46 Or. 421, SO P. 903; Gulf, C. & S. F. R. Co. v. Farmer. 102 Tex. 235, 115 S. W. 260; Gulf, C. & S. F. R. Co. v. Dooley, (Tex. Civ. App.), 131 S. W. 831; Clukey v. Seattle Elec. Co., 27 Wash. 70, 67 P. 379. California. Where medical treatises have been referred to by an expert, to sustain his expressed opinion, they may OPINIONS 433 be used to contradict or discredit such opinion. — Gallagher v. Market St. R. Co., 67 Cal. 13, 6 P. 869. Article 51. opinion as to handwriting, when deemed to be relevant. When there is a question as to the person by whom any document was written or signed, the opinion of any person acquainted with the hand- writing of the supposed writer that it was or was not written or signed by him, is deemed to be a relevant fact. A person is deemed to be acquainted with the handwriting of another person when he has at any time seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. (a) Illustration. The question is, whether a given letter is in the handwrit- ing 'if A, a merchant in Calcutta. B is a merchant in London, who has written letters ad- ■i ■ is B's broker, to whom B habitually submitted the letter purporting to !><• written by A for the purpose of advising with him thereon. The opinions of B, C and D an the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write. — 1 The opinion of E, who saw A write once twenty years ago, is also relevant. — 2 a See Illustration [3 Wigmore Ev., § 1991 et seq.] 1 Doe v. Suckermore, 5 A. & E. 705 (Coleridge, J.); 730 (Patteson, J.); 739-740 (Denman, C. J.). 2 R. v. Home Tooke, 25 S. T. 71-72. 434 OPINIONS OPINION AS TO HANDWRITING. Qualifications of Witness. Arkansas. A witness who has read a letter admitted to have been written by an individual may testify that, in his opinion, the writing submitted to him was written by the same person.— Redd v. State, 65 Ark. 475, 47 S. W. 119. One engaged in the mercantile business, and who had studied penmanship and was familiar with the signature of a person, was competent to testify as to its genuineness by comparison.— McNeil v. State, 117 Ark. 8, 173 S. W. 826. California. Where a witness states that he is familiar with an individual's handwriting; that he is of the opinion that papers submitted were written by such person, but that witness did not see him write them and would not swear that it was his handwriting, it is sufficient to admit such papers in evidence as written by such person. — Peo- ple v. Bidleman, 104 Cal. 608, 38 P. 502. Colorado. A witness who has had reasonable means and opportunity to become acquainted with the signature of an individual, may give his opinion as to its genuineness. — Salazar v. Taylor, 18 Colo. 538, 33 P. 369. One who has seen an individual write may give evidence as to the genuineness of his signature. — People v. Gordon, 13 Colo. App. 678, 110 P. 469. Oklahoma. A witness testifying to the genuineness of handwriting must show familiarity with the handwriting of the person in question before he can testify from per- sonal knowledge. — Archer v. United States, 9 Old. 569, 60 P. 268. Oregon. A witness may testify from his own knowledge as to the genuineness of handwriting when familiar with with it, or by comparison with writing admittedly genu- ine, but not unless admitted to be genuine by the adverse party, and such testimony is competent as to the genuine- ness of a signature by mark. — State v. Tice, 30 Or. 457, 48 P. 367. South Dakota. If one has seen a person write, he is com- petent to give an opinion as to whether or not the sig- OPINIONS 435 nature purporting to be his is in fact his signature. — State v. Hall, 16 S. D. 6, 91 N. W. 325. Texas. Sheriff, not being an expert, cannot testify by comparison of handwriting, where he did not know the genuine handwriting of the person. — Jordt v. State, 50 Tex. Cr. R. 2, 95 S. W. 514. A witness who states that he knows the handwriting of a party in general, had frequently seen him write, and had made a careful examination of his purported signa- ture, may give an opinion as to its genuineness, although the signature was not in court. — Robertson v. Talmadge, (Tex. Civ. App.), 174 S. W. 627. Utah. A witness familiar with the handwriting of another may give his opinion as to the genuineness of a writing in question.— Tucker v. Kellogg, 8 Utah 11, 28 P. 870. One who never saw another write or is not an expert cannot testify to the genuineness of such person's hand- writing.— State v. McBride, 30 Utah 422, 85 P. 440. A witness who has seen a party write but once may testify as to the genuineness of such person's handwriting. —State v. Freshwater, 30 Utah 422, 85 P. 447. Washington. A witness who has personal knowledge of the handwriting of another may testify as to his belief or his opinion as to the genuineness of his signature. — Poncin v. Furth, 15 Wash. 201, 46 P. 241; State v. Miller, 80 Wash. 75, 141 P. 293; O'Brien v. McKelvey, 59 Wash. 115, 109 P. 337. Article 52. comparison of handwritings. Comparison of a disputed handwriting with any- writing proved to the satisfaction of the judge to be genuine is permitted to be made by wit- nesses, and such writings, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuine- 436 OPINIONS ness or otherwise of the writing in dispute. This paragraph applies to all courts of judicature, crim- inal or civil, and to all persons having by law, or by consent of parties, authority to hear, receive and examine evidence, (a) COMPARISON BY EXPERTS. In many jurisdictions expert comparison of handwrit- ings is admissible to prove the genuineness of a writing. (3 Wigmore Ev., § 2008.) The opinions of experts, but not of lay witnesses, are generally admitted to show the genuineness or otherwise of handwriting, by comparison with other specimens, the competency of which specimens to serve as standards of comparison depending upon their authenticity, the rules in the different, or even in the same, jurisdictions not being in harmony, and usually attempted to be regulated by statute. (3 Wigmore Ev., § 2004 et seq.) Idaho: B,ane v. Guinn, 7 Ida. 439, 63 P. 634 (only such papers as are admitted in evidence in the case, for other purposes, and such as are admitted to be genuine.) Kansas: Gilmore v. Swisher, 59 Kan. 176, 52 P. 426 (letters not admitted as genuine cannot be used as standard of comparison). Montana: Davis v. Fredericks, 3 Mont. 262 (witness is incompetent to testify whose only knowledge of handwrit- ing is by comparison with others acknowledged to be gen- uine). Oklahoma: Archer v. United States, 9 Okl. 569, 60 P. 268 (the writing used as a standard must be proved genuine by direct and positive evidence, and cannot itself be proved by comparison). Oregon: State v. Tice, 30 Or. 457, 48 P. 367 (by statute, writings admitted or treated as genuine by the party against whom the evidence is offered may be used for comparison). a 17 & 18 Vict., c. 125, s. 27; 28 Vict., c. 18, s. 8. [3 Wig- more Ev., § 1997.] I OPINIONS 437 Texas: Jester v. Steiner, 86 Tex. 415, 420, 25 S. W. 411 (signature not admitted to be genuine, nor otherwise sat- isfactorily proved, cannot be used as standard). Utah: Tucker v. Kellogg, 8 Utah 11, 28 P. 870 (checks admitted to contain genuine signatures). Washington: Moore v. Palmer, 14 Wash. 134, 44 P. 142 (bank checks whose genuineness was in no way disputed or denied, admissible for purpose of comparison with alleged forged signature). Colorado. An expert on handwriting may give his opin- ion as to the genuineness of crosses, in lieu of a signature, alleged to have been made by one who was unable to write his name. — Ausmus v. People, 47 Colo. 167, 107 P. 204. Texas. An opinion as to the genuineness of a signature based upon personal knowledge of the signer's handwriting, cannot be discredited by submitting several signatures of another person, with whose handwriting witness did not profess to be familiar, and, after witness has given his opinion that the signatures so submitted were made by the same person, evidence of the maker of such signatures that one of them is a forgery, is inadmissible. — Cowboy State Bank & T. Co. v. Roy, (Tex. Civ. App.), 174 S. W. 647. Utah. Opinions of experts as to the genuineness of hand- writing are admissible when founded upon comparison with writing admitted to be genuine. — State v. Webb, 18 Utah 441, 56 P. 159. Standard of Comparison. California. An opinion as to the genuineness of a signa- ture cannot be based upon comparison with another sig- nature not shown to be genuine. — Spottiswood v. Weir, 80 Cal. 448, 22 P. 289. When the genuineness of a writing is established it may be used as a standard of comparison. — People v. Driggs, 14 Cal. App. 507, 112 P. 577. Kansas. Writings used as a standard for comparison must be admittedly genuine or proven so. This rule applies to cross-examination as well as direct. — Ort v. Fowler, 31 Kan. 478, 2 P. 580; Holmberg v. Johnson, 45 Kan. 197, 25 P. 575; Gaunt v. Harkness, 53 Kan. 405, 36 P. 739. 438 OPINIONS Oklahoma. The writing used as a standard of comparison must be admittedly genuine or undoubtedly proven by direct or positive evidence, and not by comparison. — Archer v. United States, 9 Okl. 569, 60 P. 268. Oregon. Writings admitted to be or treated as genuine may be used as a standard for comparison, although such writings are inadmissible in evidence for any other pur- pose. — Munkers v. Farmers' Ins. Co., 30 Or. 211, 46 P. 850; State v. Branton, 49 Or. 86, 87 P. 535. South Dakota. A signature prepared for the special pur- pose of comparison is inadmissible as a standard of com- parison. The writing must be admittedly genuine or shown to be so.— Greenwald v. Ford, 21 S. D. 28, 109 N. W. 516. Texas. The genuineness of disputed handwriting may not be determined by comparing it with other purported hand- writing, unless such other handwriting is admittedly genu- ine, or has been so established by clear and undisputed proof. — Eborn v. Zimpelman, 47 Tex. 503; Cowboy State Bank & T. Co. v. Roy, (Tex. Civ. App.), 174 S. W. 647. And such other writing may not be proven to be genu- ine merely by the opinion of witnesses derivable from their general knowledge of the handwriting of the person whose signature it purports to be. — Kennedy v. Upshaw, 64 Tex. 420. The standard of comparison must be so firmly estab- lished as genuine as to admit of no collateral issue to arise.— Hanley v. Gandy, 28 Tex. 211; Smyth v. Caswell, 67 Tex. 573, 4 S. W. 851. A signature cannot be proved by comparison when the signature itself is not before the court. — Mugge v. Adams, 76 Tex. 448, 13 S. W. 330; Robertson v. Talmadge, (Tex. Civ. App.), 174 S. W. 627. Utah. Handwriting may be proved by comparison with that which is admitted to be genuine. — Durnell v. Sowden, 5 Utah 216, 14 P. 334; Tucker v. Kellogg, 8 Utah 11, 38 P. 870. The standard of comparison must be conclusively shown to be genuine before it can be used for such purpose. — State v. McBride, 30 Utah 422, 85 P. 440. OPINIONS 439 Washington. Handwriting admitted or proved to be gen- uine may be used as a standard for comparison witb handwriting claimed to be spurious. — State v. Cottrell, 56 Wash. 543, 106 P. 179; O'Brien v. McKelvey, 59 Wash. 115, 109 P. 337. Abticle 53. opinion as to existence of mabriage, when relevant. When there is a question whether two persons are or are not married, the facts that they co- habited and were treated by others as man and wife are deemed to be relevant facts, and to raise a presumption that they were lawfully married, and that any act necessary to the validity of any form of marriage which may have passed be- tween them was done; (a) but such facts are not sufficient to prove a marriage in a prosecution for bigamy or in proceedings for a divorce, or in a petition for damages against an adulterer, (b) EXISTENCE OF MARRIAGE. There is a strong presumption in favor of the validity of a marriage where the parties have lived and cohabited together, whether the marriage was regular or irregular, and whatever the form of the proofs. — Darling v. Kent. 82 Ark. 76, 100 S. W. 747; McKibbon v. McKibbon. 139 Oai. lis. 73 P. 148; Wilcox v. Wilcox, 171 Cal. 770. 155 P. a [The questions treated under this subject are not prop- fi'ly matters . in R. v. Thornhill, s c. & lv. Lord Abinger acted upon this rule in a trial for perjury. 504 FACTS ADMITTED tent, does not preclude the prosecution from proving such intent. — Commonwealth v. McCarthy, 119 Mass. 354. Montana. In an action on the official bond of a city treasurer for failure to account for a definite sum, where defendants by their answer admitted receiving such sum as the property of the city, the exclusion of evidence that the predecessor of the treasurer turned over to him cer- tain funds belonging to the city, was not error. — City of Great Falls v. Hanks, 21 Mont. 83, 52 P. 785. In an action against a municipality to recover the cost of repairing a sewer which had become a nuisance, and had been repaired by plaintiff, where the defendant's coun- sel admitted that the only issue was whether or not the expense incurred by plaintiff was necessary, the exclusion of evidence as to the reasonableness of plaintiff's charge was not error. — Murray v. City of Butte, 35 Mont. 161, 88 P. 789. Nebraska. Proof of admitted facts is immaterial, but not necessarily prejudicial. — Wittenberg v. Mollyneaux, 60 Neb. 583, 83 N. W. 842. New York. The admission by defendant or his counsel in open court during trial, of facts of importance obviates the necessity of evidence to prove such facts. — People v. Walker, 198 N. Y. 329, 91 N. E. 806. Oklahoma. Points admitted in a pleading are unnecessary to be proved.— Fish v. Sims, 42 Okl. 535, 141 P. 980. South Carolina. An agreement to exclude competent and material evidence in a criminal prosecution is contrary to public policy and void. — Spartanburg v. Parris, 85 S. C. 227, 67 S. E. 246. Texas. When the admission is a judicial confession, or one made in open court, there must be evidence introduced of the confessed crime, but where the good character of a defendant is admitted by the prosecution, it is not error to reject evidence upon that issue. — Beard v. State, 44 Tex. Cr. R. 402, 71 S. W. 960; Wilson v. State, (Tex. Cr. R.), 72 S. W. 862. FACTS ADMITTED 505 Defendant by agreeing that the law under which he was being prosecuted was in full force and effect, waived the necessity for proof of that fact on the part of the prose- cution.— Starnes v. State, 52 Tex. Cr. R. 403, 107 S. W. 550. An allegation of employment in plaintiff's petition not controverted need not be proved. — Williams v. Phelps, (Tex. Civ. App.), 171 S. W. 1100. Utah. The admission by a party to an instrument that he executed same is sufficient proof of execution. — Comp. Laws 1907, § 3405. Washington. Where the answer of the defendant admitted that plaintiff was the owner of certain property, it was proper to reject plaintiff's offer to put the deed in evidence to show title in him. — Schwede v. Hemrich, 29 Wash. 124, 69 P. 643. Where the execution of a document is admitted by the pleadings of a party, his adversary may introduce it in evidence without proof of execution. — Kauffman v. Baillie, 46 Wash. 248, 89 P. 548. ADMISSIONS AT TRIAL. California. In a prosecution for murder, admission of evidence of the pursuit and capture of defendant, was proper, although defendant had admitted the facts. — Peo- ple v. Fredericks, 106 Cal. 554, 39 P. 944. In an action to recover the value of goods alleged to have been sold and delivered, that the defendant may have been estopped from denying the sale, did not dispense with proof of the sale and delivery. — Napa Valley P. Co. v. San Francisco Relief & R. C. F., 16 Cal. App. 461, 118 P. 469. Indiana. Where, in a prosecution for murder, the defend- ant admitted that decedent died from a wound inflicted by him, it was not error to exclude or admit further evidence of the fact.— Trogdon v. State, 133 Ind. 1, 32 N. E. 7: Iowa. In a prosecution for murder where it was admitted that defendant killed decedent, the plea of not guilty put in issue every allegation of the indictment, and it was nee- 506 FACTS ADMITTED essary to prove the killing by competent evidence. — State v. Winter, 72 Iowa 627, 34 N. W. 475. Texas. Where the prosecutrix in a prosecution for rape has admitted having blamed her pregnancy upon the de- fendant and also upon another, the exclusion of further evidence as to her contradictory statements was not error. —Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364. Washington. In an action by an injured servant against the master where plaintiff admitted that he heard the warn- ing of danger, the exclusion of evidence that it was cus- tomary to give warning, was not error. — Johnson v. Ander- son, 61 Wash. 100, 111 P. 1063. ORAL EVIDENCE 507 CHAPTER VIII. OF ORAL EVIDENCE. Abticle 61. proof of facts by oral evidence. All facts may be proved by oral evidence sub- ject to the provisions as to the proof of docu- ments contained in Chapters IX, X, XI and XII. ORAL EVIDENCE. See Article 62, infra. Arkansas. A justice of the peace may testify to his offi- cial capacity to perform a marriage ceremony without pro- ducing his commission. — Tanner v. State, 116 Ark. 452, 173 S. W. 200. Colorado. A witness may testify that he is an officer of a corporation without the production of the records. — Sto- vell v. Alert Gold Min. Co., 38 Colo. 80, 87 P. 1071. Oklahoma. On an issue as to the number of ties bought, witness may testify as to his best recollection, independent of the entries in the books, without offering the books or showing their loss. — McCants v. Thompson, 27 Okl. 706, 115 P. 600. Article 62.* ukai, evidence mist be direct. Oral evidence must in all cases whatever be di- rect ; that is to say — If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it; •See note at end of article. 508 ORAL EVIDENCE If it refers to a fact alleged to have been heard, it must be the evidence of a witness who says he heard it; If it refers to a fact alleged to have been per- ceived by any other sense or in any other man- ner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion, or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. TESTIMONY AS TO FACTS SEEN. In General. California. One who can neither read nor write cannot tes- tify to the contents of a written instrument alleged to have been lost. — Russell v. Brosseau, 65 Cal. 605, 4 P. 643. Montana. The condition of a place at which an accident occurred may be shown by a witness who examined it the morning after the accident. — Hollingsworth v. Davis-Daly Estates Copper Co., 38 Mont. 143, 99 P. 142. Nebraska. Any person who has examined a record may be permitted to testify that a particular fact does not ap- pear therein. — Gutta Percha & Rubber Mfg. Co. v. Ogalalla, 40 Neb. 775, 59 N. W. 513; Smith v. First Nat. Bank, 45 Neb. 444, 63 N. W. 796. Oklahoma. Witness cannot testify to the grade of a pro- duct after its shipment to a distant point where he did not grade it before shipment. — Smoot & Abbott v. Moody & Co., 34 Okl. 522, 125 P. 1134. Texas. The contents of a written instrument cannot be established by statements of a third party made to the wit- ness. — Mutual Life Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294. A witness long experienced in handling and shipping cattle may testify as to their condition and class after ORAL EVIDENCE 509 reaching the market, although he did not see them the day of their arrival, but saw them before they were sold. — Trout & Newberry v. Gulf C. & S. F. Ry. Co., (Tex. Civ. App.), Ill S. W. 220. A witness who has opportunity to observe a fact, but does not do so cannot testify to such fact. — Beesing v. State, (Tex. Cr. R.), 180 S. W. 256. Utah. Where the rotten condition of a ladder was alleged to have been the cause of plaintiff's injuries, a witness to whom it was pointed out four days after the accident could properly testify to its condition, the ladder having been fully identified. — Reese v. Morgan Silver Min. Co., 17 Utah 489, 54 P. 759. Diagrams, Maps and Plans. California. Map of addition of town admitted to locate place of accident. — Foley v. Northern California Power Co., 165 Cal. 103, 130 P. 1183. Nebraska. A correct plan or drawing of an excavation and the surrounding locality where an accident occurred is ad- missible. — Village of Culbertson v. Holliday, 52 Neb. 229, 69 N. W. 853. North Dakota. Diagram of a cut where an accident oc- curred not admitted, no foundation being laid. — Anderson v. Minneapolis, St. P. & S. S. M. Ry. Co., 18 N. D. 462, 123 N. W. 281. Washington. Maps are admissible as illustrative of testi- mony of witnesses in condemnation proceedings. — Portland & S. Ry. Co. v. Clarke County, 48 Wash. 509, 93 P. 1083. Photographs. Photographs, duly verified, are admissible in evidence as aids to the jury in arriving at an understanding of the evidence or of the situation or condition or location of objects or premises, material and relevant to the issues: North Dakota: Higgs v. Minneapolis, St. P. & S. S. M. Ry. Co., 16 N. D. 446, 114 N. W. 722 (photographs of right- of-way of railroad where it is claimed a fire originated). 510 ORAL EVIDENCE Oklahoma: St. Louis & S. F. R. Co. v. Dale, 36 Okl. 114, 128 P. 137 (action for loss of crops by inundation; photo- graphs of the topography affected, including the lands cul- tivated by plaintiff, the length and extent of the ditches made by defendant, and the timber and other permanent things, admitted). The weight to be given to photographs material to the issues is not of conclusive effect as a matter of law, but depends upon the skill, accuracy and manner in which taken, and they are to be considered under the same tests as other evidence. — Higgs v. Minneapolis, St. P. & S. S. M. Ry. Co., 16 N. D. 446, 114 N. W. 722; St. Louis & S. F. R. Co. v. Dale, 36 Okl. 114, 128 P. 137. That photographs were taken some time after the acci- dent is immaterial, where the topography shown has not materially changed. — Sherlock v. Minneapolis, St. P. & S. S. M. Ry. Co., 24 N. D. 40, 138 N. W. 976; St. Louis & S. F. R. Co. v. Dale, 36 Okl. 114, 128 P. 137. The practice of admitting photographs and models in evidence in all proper cases should be encouraged. — Stone v. Northern Pac. Ry. Co., 29 N. D. 480, 151 N. W. 36; Kelly v. City of Spokane, 83 Wash. 55, 145 P. 57. Arkansas. Photographs proved to be correct, like dia- grams, are admissible as evidence to aid the court or jury to understand the evidence, and witnesses to explain their testimony. — Kansas City Southern Ry. Co. v. Morris, 80 Ark. 528, 98 S. W. 363. California. A photograph is used like any other chart for illustrative purposes. — Kimball v. Northern Elec. Co., 159 Cal. 225, 113 P. 156. Enlarged photographs of the scene of an accident are admissible, although the maker is not called to prove their accuracy. — Diller v. Northern Calif. Power Co., 162 Cal. 531, 123 P. 359. Colorado. The fact that a photograph was not taken by a professional photographer does not render it inadmissible in evidence. If it is otherwise competent it is only neces- sary to show that it is a correct likeness of the objects ORAL EVIDENCE 511 which it purports to represent, in order to warrant its ad- mission in evidence, and this may be shown by any com- petent witness.— Mow v. People, 31 Colo. 351, 72 P. 1069. If a photograph is inaccurate or taken in a way to make it misleading, the testimony is practically of no value. — Hayes' Estate, In re, 55 Colo. 340, 135 P. 449. The preliminary question as to whether a photograph is a fair and accurate representation of the objects which it purports to portray is a matter largely within the discre- tion of the trial court. — Hayes' Estate, In re, 55 Colo. 340, 135 P. 449. Kansas. The admission of photographs in evidence is in the discretion of the court, and if they tend to confuse the jury they should be rejected. — Boddington v. Kansas City, 95 Kan. 189, 148 P. 252. North Dakota. The fact that photographs offered in evi- dence were taken some time after the accident is imma- terial where the topography shown has not materially changed. — Sherlock v. Minneapolis, St. P. & S. S. M. Ry. Co., 24 N. D. 40, 138 N. W. 976. Photographs showing locality near place of accident at crossing, made where conditions not substantially changed, admitted.— Sherlock v. Minneapolis, St. P. & S. S. M. Ry. Co., 24 N. D. 40, 138 N. W. 976. It was not error to deny admission in evidence of the pho- tograph of a portion only of a crossing where an accident occurred, taken from some distance to the side of the main line track, and giving perhaps a misleading view of the situation.— Stone v. Northern Pac. Ry. Co., 29 N. D. 480, 151 N. W. 36. Oklahoma. Photographs showing the location and char- acter of wounds are admissible. — Smith v. Territory, 11 Okl. 669, 69 P. 805. Where photographs are proven to be a true and correct representation of whatever they purport to reproduce, they are admissible and competent as evidence, as an appro- priate aid to the jury in elucidating the evidence; and this rule applies to persons, places and things. (Photographs 512 ORAL EVIDENCE of deceased taken after the body had been removed from the scene of the homicide to the residence of his uncle, admitted).— Smith v. Territory, 11 Okl. 669, 69 P. 805. The fact that photographs were taken at a time one and two years after the date of respective injuries, to land by flooding, does not render them incompetent, where of- fered only for the purpose of showing the topography of the affected country and other permanent conditions, as distinguished from those of a transient or temporary char- acter.— St. Louis & S. F. R. Co. v. Dale, 36 Okl. 114, 128 P. 137. Oregon. Photographs of the scene of a wreck, taken the next morning after an accident and before conditions ma- terially changed, admissible. — Maynard v. Oregon R. & Nav. Co., 46 Or. 15, 78 P. 983. Photograph copy of an instrument admissible in evidence is admissible when shown to be correct and proper founda- tion laid. — Parker v. C. A. Smith Lumber & Mfg. Co., 70 Or. 41, 138 P. 1061. Texas. Photographs of the place where an accident oc- curred, properly identified as representing the scene, are admissible. — Thompson v. Galveston, H. & S. H. Ry. Co., 48 Tex. Civ. App. 284, 106 S. W. 910. Photographs of plaintiff taken before the accident are admissible. — Galveston, H. & S. A. Ry. Co. v. Harper, 53 Tex. Civ. App. 614, 114 S. W. 1168. Photographic tracings showing weakness of pulse and microscopic photographs of excretions admissible. — Mis- souri, K. & T. Ry. Co. v. Heacker, (Tex. Civ. App.), 168 S. W. 26. Where photographic tracings are shown to be scien- tifically and correctly taken, they are admissible. — Mis- souri, K. & T. Ry. Co. v. Heacker, (Tex. Civ. App.), 168 S. W. 26. A photograph of the place where an accident occurred at a railroad crossing is admissible, although it showed a flat car there when a box car was shown by the proof to have been there at the time of the accident, more fully ORAL EVIDENCE 513 obstructing the view. — Hovey v. Sanders, (Tex. Civ. App.), 174 S. W. 1025. Utah. Photographs of wreck taken an hour after the acci- dent, admissible. — Johnson v. Union Pac. R. Co., 35 Utah 285, 100 P. 390. Washington. On the issue of forgery of a note where there are present some 500 concededly genuine signatures as well as the one in question, photographs of the disputed signature and of some of the genuine ones were properly excluded, although where the genuine signatures cannot be brought into court a photograph taken with proper care may be admitted. Where such photos show want of prop- er care in taking they are properly rejected. — Crane v. Dexter Horton & Co., 5 Wash. 479, 32 P. 223. Photographs of a car after a collision admissible to show force of impact and probable injury to passengers. —Taylor v. Spokane, P. & S. Ry. Co., 72 Wash. 378, 130 P. 506. Sciagraphs (X-Ray). Proof of the accuracy and correctness of an X-ray photo- graph is required before it can be admitted in evidence. — Prescott & N. W. R. Co. v. Pranks, 111 Ark. 83. 163 S. W. 180; Miller v. Dumon, 24 Wash. 648, 64 P. 804. Arkansas. An X-ray photograph is admissible, though it is not infallible, and might possibly be misleading. — Miller v. Minturn. 73 Ark. 183, 83 S. W. 918. "It is now a recognized fact that by the aid of proper apparatus a picture of the human body may be obtained that will more or less define the skeleton and show any injuries that may have resulted to the bones, or any for- eign substance that may be lodged in the body. There- fore, X-ray photographs are admissible in evidence when proof of their accuracy and correctness is produced." (Showing dislocation of plaintiff's hip.) — Prescott & N. W. R. Co. v. Franks, 111 Ark. 83, 163 S. W. 180. California. Familiarity of physicians examined with ref- erence to X-ray photographs of an injury should be shown but such familiarity may be implied from their other tes- 514 ORAL EVIDENCE timony. — Kimball v. Northern Electric Co., 159 Cal. 225, 113 P. 156. Montana. An X-ray photograph is competent evidence to prove a condition which can be shown by a presentation of that sort. (Condition of bone in plaintiff's leg.) — Stokes v. Long, (Mont), 159 P. 28. Nebraska. An X-ray sciagraph showing a calcareous de- posit in the tissues of an injured foot, is admissible. — City of Geneva v. Burnett, 65 Neb. 464, 91 N. W. 275. Texas. An X-ray photograph showing the condition of plaintiff's injured bones, is admissible. — Houston & T. C. R. Co. v. Shepard, 54 Tex. Civ. App. 596, 118 S. W. 596. Washington. Photographs taken by common processes are generally held admissible as evidence, and there would seem to be no reason for making a distinction between an X-ray and a common photograph; that is, either is admis- sible as evidence when verified by proof that it is a true representation of an object which is the subject of inquiry. —Miller v. Dumon, 24 Wash. 648, 64 P. 804. Testimony of a physician who made X-ray photographs of plaintiff's injured neck, in explaining the photographs and showing the bones which were exhibited thereby and in explaining what bones were named in the evidence, is admissible, where a sufficient predicate is laid for the introduction of the photographs. — Pecos & N. T. Ry. Co. v. Winkler, (Tex. Civ. App.), 179 S. W. 691. TESTIMONY AS TO FACTS HEARD. In General. Arkansas. A workman, unable to distinguish the words, although he recognizes the voice to be that of his fore- man, cannot testify to what the foreman said, where the words were repeated to him by another workman in the absence of the foreman. — Western Coal & Min. Co. v. Corkille, 96 Ark. 387, 131 S. W. 963. California. Where a witness, after testifying that one per- son gave a sum of money to another for use of witness, was asked how he knew that to be a fact, replied that ORAL EVIDENCE 515 the person to whom the money was given told him so, the answer, over objection, was allowed to stand. — Byrne v. Reed, 75 Cal. 277, 17 P. 201. Where it is alleged that the attending physician ordered that no one be allowed to see the patient, a witness who could not say positively that he heard the physician give any orders to that effect, and did not remember receiving such order from any one, could not testify as to the giving of such order.— Wickes' Estate, In re, 139 Cal. 195, 72 P. 902. Articles in a newspaper with which defendant had no connection, purporting to state what he said, are no evi- dence of what he did or did not say. — Carpenter v. Ashley, 148 Cal. 422, 83 P. 444. Colorado. A child cannot testify that defendant sought to poison the minds of plaintiff's children against him by repeating what it had been told by its mother in the ab- sence of both parties to the suit. — Gilpin v. Gilpin, 12 Colo. 504, 21 P. 612. Idaho. The testimony of a third party as to a conversation between others should be received with great caution, and a person's memory of his own utterances will be regarded as more authentic than that of a listener. — Flynn v. Flynn, 17 Ida. 147, 104 P. 1030. Nevada. A witness cannot testify as to an alleged con- fession, portions of which were not understood by him because made in a foreign language.— State v. Buster, 23 Nev. 346, 47 P. 194. Utah. A witness cannot testify as to what his wife told him one of the parties told her as to the ownership of property in controversy. — Bolitho v. East, 45 Utah 181, 143 P. 584. Telephone Conversations. Colorado. A telephone conversation between the parties, and upon the subject-matter of the litigation, having been testified to by one of the parties, may also be testified to by a bystander, so far as he heard it. — Kent v. Cobb, 24 Colo. App. 264, 133 P. 424. 516 ORAL EVIDENCE Kansas. After the death of the speaker, what he said to witness over a telephone may he testified to. — Washbon v. State Bank, 86 Kan. 468, 121 P. 515. Nebraska. Where two persons talking over a telephone cannot hear each other distinctly and the conversation is repeated to each of them by an intermediate operator, the conversation may be testified to by such persons, the op- erator being considered as the agent of both parties. — Oskamp v. Gadsden, 35 Neb. 7, 52 N. W. 718. Oklahoma. A telephone conversation may be repeated in evidence where such conversation is otherwise admissible, though the witness did not identify positively the person with whom he had the conversation.— Heckman v. Davis, (Okl.), 155 P. 1170. Oregon. A witness may testify to a telephone conversa- tion heard by him by "cutting in" where he recognizes the voice of the speaker.— De Lore v. Smith, 67 Or. 304, 136 P. 13. Texas. A witness may testify to a conversation had over a telephone. — Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608. A witness may testify that plaintiff received an offer of employment, where the witness received such offer over a telephone from the person making the same, and for the benefit of plaintiff. — St. Louis Southwestern Ry. Co. v. Kennedy, (Tex. Civ. App.), 96 S. W. 653. A witness cannot testify as to what a person at the other end of a telephone conversation said to a third person with whom the conversation was held and who communi- cated it to witness. — Texas & P. Ry. Co. v. Felker, 44 Tex. Civ. App. 420, 99 S. W. 439. Defendant's agent cannot testify to what a subagent telephoned him in regard to the absence of an alleged material witness. — Galveston H. & S. A. Ry. Co. v. Rein- hart, (Tex. Civ. App.), 182 S. W. 436. Interpreter as Medium. California. A witness cannot testify as to what he heard a person say when he did not understand the language ORAL EVIDENCE 517 used, but it was translated to him by another.— People v. Ah Yute, 56 Cal. 119; People v. John, 137 Cal. 220, 69 P. 1063; People v. Jan John, 144 Cal. 284, 77 P. 950; People v. Petruzo, 13 Cal. App. 569, 110 P. 324. Where two persons who speak different languages are unable to understand each other and select an interpreter, he will be considered as the agent of each and statements made by one to the other are not hearsay, but competent as admissions. — Kelly v. Ning Yung Benev. Ass'n, 2 Cal. App. 460, 84 P. 321. Colorado. Where a conversation is held through an inter- preter, a witness can only testify as to that part thereof as he, himself, understood without the aid of the inter- preter.— Sharp v. Mclntire, 23 Colo. 99, 46 P. 115. Montana. Admissions made to an interpreter who trans- lated same to witness, cannot be testified to by such wit- ness.— Territory v. Big Knot, 6 Mont. 242, 11 P. 670. Nebraska. A conversation conducted through an inter- preter where neither party understands the language spoken by the other, may be testified to by such parties. — Oskamp v. Gadsden, 35 Neb. 7, 52 N. W. 718. Where a conversation between parties is conducted through an interpreter, persons who heard and understood what the interpreter said in translating the conversation may testify thereto. — Oskamp v. Gadsden, 35 Neb. 7, 52 N. W. 718. Texas. A witness cannot testify as to what another per- son said when he did not understand the language spoken, but only knew what it was alleged to be from translation by an interpreter. — Cervantes v. State, 52 Tex. Cr. It. 82, 105 S. W. 499. SOURCE OF KNOWLEDGE OF WITNESS. California. To show that a business was carried on by a person in his own name, testimony of parties that they sold goods to him in his own name, is competent. — Kelly v. Murphy, 70 Cal. 560, 12 P. 467. After the death of the father, a child may testify as to the amount of the father's earnings, his conduct, the man- 518 ORAL EVIDENCE ner in which he spent his money, and his treatment of his children other than witness. — Salmon v. Rathjens, 152 Cal. 290, 92 P. 733. Upon an issue as to plaintiff's capacity and ability as a workman to perform the usual work of his trade before and after an accident to him, a witness of the same trade who had worked with plaintiff before and after the acci- dent, is competent to testify; and upon such issue, an adult son of plaintiff is qualified to testify even though he be not a workman at the same trade. — Majors v. Connor, 162 Cal. 131, 121 P. 371. Kansas. Upon an issue as to the relative value of ear and shelled corn for seeding purposes, witness may testify why shelled corn is of less value, and may state the reasons farmers give for rejecting shelled corn for such purpose. —Missouri Pac. R. Co. v. Nevin, 31 Kan. 385, 2 P. 795. Whether a particular train on a railroad is a regular one or an extra, may be shown by a person who has lived sev- eral months near a railroad crossing, and that his business requires him to cross the track frequently, and that he is able to tell the time the regular trains pass the crossing. — Missouri Pac. R. Co. v. Stevens, 35 Kan. 622, 12 P. 25. A witness whose knowledge was obtained from the books of a bank, and who supervised the keeping thereof, may testify that a person alleged to have passed a worthless check, had no account subject to check at the bank. — State v. McCormick, 57 Kan. 440, 46 P. 777. The weight of coal at its final destination, after reship- ment, cannot be testified to by the purchaser, basing his testimony on information received from the consignee. — Wilkes v. Clark Coal & G. Co., 95 Kan. 493, 148 P. 768. Montana. Witness testified that upon a certain occasion he spoke certain words in an ordinary and natural tone of voice — the tone one would use under similar circum- stances. Held, unobjectionable. — Knuckey v. Butte Elec. Ry. Co., 45 Mont. 106, 122 P. 280. Oklahoma. A witness who had never been in the employ of a railroad, was not connected with the execution of the ORAL EVIDENCE 519 waybill, or had no knowledge of the weight of the car when delivered to the carrier, could not testify as to its weight when received by the carrier. — St. Louis, I. M. & S. Ry. Co. v. Carlile, 35 Okl. 118, 128 P. 690. Oregon. Where owners of land have platted the same and shown roads thereon, and engaged a real estate firm to sell the lands, members of such firm may testify as to the owner's intention to dedicate such roads to the use of the public— Spencer v. Peterson, 41 Or. 257, 68 P. 519. Texas. Testimony as to the number of sheep in a flock by one who was present when others counted them and put down the numbers called out by them was original evi- dence. — Gresham v. Harcourt, 33 Tex. Civ. App. 196, 75 S. W. 808. A husband may testify as to the performance of certain work about his place by his wife, though he may have been absent at times when she was performing such work. —Gulf C. & S. F. R. Co. v. Booth, (Tex. Civ. App.), 97 S. W. 128. The value of live stock being in issue, reports taken from a daily paper, shown to have been regularly made and correctly kept, are sufficient without the testimony of the editor that he had personal knowledge of the several sales reported. — Bullard v. Stewart, 46 Tex. Civ. App. 49, 102 S. W. 174. A witness may testify as to the schedule of trains, where he has gained his knowledge from perusal of the official time card furnished the public by the railroad. — Western Union Tel Co. v. O'Fiel, 47 Tex. Civ. App. 40, 104 S. W. 406. Whether or not a person can hear remarks addressed to him, may be shown by the testimony of one so sit- uated as to be able to observe the actions of the person addressed. — El Paso Elect. Ry. Co. v. Boer, (Tex. Civ. App.), 108 S. W. 199. It appearing that a telephone operator at the central office would know when anything was wrong with the telephone at a subscriber's house, her statement that a telephone was damaged by lightning, was admissible as a 520 ORAL EVIDENCE statement of fact. — Southern Tel. & Tel. Co. v. Evans, 54 Tex. Civ. App. 63, 116 S. W. 418. Evidence of a city engineer as to the width of a street is not objectionable on the ground that he was not present at the time of the original survey. — International & G. N. R. Co. v. Morin, 53 Tex. Civ. App. 531, 116 S. W. 656. A daughter testifying as to medicine given her mother, who did not see the doctor, did not remember what kind of medicine the mother took, did not know the quantity, and did not know how she learned that too much had been taken, but supposed that she learned it from some member of the family, is an incompetent witness. — Missouri, Kan- sas & Texas Ry. Co. v. Williams, (Tex. Civ. App.), 133 S. W. 499. Where abuse of wife is charged against the husband, a witness who has never been at the home of the parties and only knew husband in a business way, is incompetent to testify on the issue. — Streight v. State, 62 Tex. Civ. App. 453, 138 S. W. 742. A witness cannot testify as to the value of a tract of land known to him before, but not seen by him after a railroad had been built across it. — Wichita Falls & W. Ry. Co. v. Wyrick, (Tex. Civ. App.), 147 S. W. 730. Where a witness had opportunity to observe certain facts relative to another person, but in fact did not observe the facts testified to, his evidence was incompetent. — Beesing v. State, (Tex. Cr. R.), 180 S. W. 256. Washington. Witness cannot testify as to matters ap- pearing in memoranda made by him from data furnished by his employes, of which he had no personal knowledge. — Tingley v. Fairhaven Land Co., 9 Wash. 34, 36 P. 1098. IDENTIFICATION. California. Action of the court in ordering accused to stand up during the trial for identification by a witness is not in violation of the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself. — People v. Goldenson, 76 Cal. 328, 19 P. 161. ORAL EVIDENCE 521 Montana. A witness may identify a person with whom he is shown to be familiar, by the sound of his voice without seeing him.— State v. Vanella, 40 Mont. 326, 106 P. 364. Texas. One who seeks to identify a copy of a written in- strument must know of his own knowledge that it is in fact, a copy. — Walker v. Dickey, 44 Tex. Civ. App. 110, 98 S. W. 658. OPINION OF WITNESS. Arkansas. A witness cannot testify as to the cause of an accident from knowledge obtained from what the plaintiff told him three days after the accident by which plaintiff was injured. — Little Rock & H. S. W. Ry. Co. v. Cross, 78 Ark. 220, 93 S. W. 981. California. A witness cannot testify that the acts testified to by another witness constituted the playing or dealing the game of faro.— People v. Gosset, 93 Cal. 641, 29 P. 246. An opinion of a witness is not admissible when formed from the conclusion of another person. — People v. Kerr, 15 Cal. App. 273, 114 P. 584. What others told witness about the products of a country cannot be testified to by him to show its productiveness. — Vallejo & N. R. Co. v. Reed Orchard Co., 169 Cal. 545, 147 P. 238. Colorado. A witness cannot testify as to the physical con- dition of a party, where his opinion is not based upon his own observations, but the declarations of others. — St. Kevin Min. Co. v. Isaacs, 18 Colo. 400, 32 P. 822. Where a witness testifies that he knows the value of a thing and states the value, but does not give reasons upon which his opinion is based, the evidence is not objection- able, where an opportunity is afforded for cross-examina- tion, though not availed of. — Wilson v. Harnette, 32 Colo. 172, 75 P. 395. That the publication of a murder in the newspapers was upon a certain date, may be shown by employes of the papers and their examination of the newspaper flies. — Byram v. People, 49 Colo. 533, 113 P. 528. 522 ORAL EVIDENCE Kansas. The condition of a long account between a bank and one of its customers cannot be shown by oral testi- mony of the cashier, in the absence of some showing that he is the bookkeeper, or that books are kept under his supervision, or that he has knowledge of such books. — Mann v. Second Nat. Bank, 34 Kan. 746, 10 P. 150. To establish the fact that witness relied upon what he had heard concerning the responsibility of a firm, he may testify as to what others had said as to the financial re- sponsibility of one of the members of the firm. — Mills v. Riggle, 83 Kan. 703, 112 P. 617. Where defendants seek to show good faith in the bring- ing of a prior suit against the plaintiff in the instant case, they may testify as to what was told them by their client before bringing such suit, where the rule of privileged communications is waived, and such client testified to such matters.— Matthews v. McNeill, 98 Kan. 5, 157 P. 387. Montana. In arriving at the compensation for a right-of- way, witnesses resident in the neighborhood, and familiar with the property, may testify as to its value, though not basing their opinions on sales of the same or similar prop- erty.— Montana Ry. Co. v. Warren, 6 Mont. 275, 12 P. 641; affirmed 137 U. S. 348, 11 S. Ct. 96, 34 L. Ed. 681. Where the value of a ring was in controversy and it had not been produced on notice, oral evidence was admissible to describe it, and this description, illustrated with an- other ring was proper basis for the opinion of an expert as to its value.— Sullivan v. Girson, 39 Mont. 274, 102 P. 320. Where cattle were divided into several herds, the whole number of cattle being at issue, the testimony of a wit- ness as to the total number was allowed to stand, although he had personal knowledge of the number in some of the herds only.— Ettien v. Drum, 39 Mont. 34, 150 P. 151. Nebraska. A witness who knows nothing of the character or condition of goods cannot testify as to their value. — Smith v. First Nat. Bank, 45 Neb. 444, 63 N. W. 796. Where the issue is the value of a stock of general mer- chandise, one who knows nothing of the condition of the ORAL EVIDENCE 523 stock or its market value is incompetent to testify on that point.— Crocker v. Steidl, 82 Neb. 850, 118 N. W. 1083. South Dakota. After a witness has admitted that he does not know what the usual wages were at a given time and place, he cannot testify what they were. — McCarthy v. Fell, 24 S. D. 74, 123 N. W. 497. A witness cannot state his opinion based upon informa- tion received from others without independent knowledge of facts to base the same upon. — Dunlap v. Great Northern Ry. Co., (S. D.), 148 N. W. 529. Texas. A witness may testify as to the market at a given place from having read the market reports. That he had the same information from other sources does not render the testimony incompetent. — Southern Kansas Ry. Co. v. Bennett, 46 Tex. Civ. App. 379, 103 S. W. 1115; Houston Packing Co. v. Griffith, (Tex. Civ. App.), 144 S. W. 1139; Galveston, H. & S. A. Ry. Co. v. Karrer, (Tex. Civ. App.), 109* S. W. 440. But he cannot testify from information based merely upon private advices sent out by a commission company. —Texas & P. Ry. Co. v. Slator, (Tex. Civ. App.), 102 S. W. 156. That a spark arrester used on locomotives is in gen- eral use throughout the country cannot be testified to by a witness who bases his conclusion upon information de- rived by him from reading railway journals. — Morgan & Bros. v. Missouri, K. & T. Ry. Co., 50 Tex. Civ. App. 420, 110 S. W. 978. A witness cannot testify to the opinion of another per- son which was stated to him, although he is, himself of the same opinion. — Milino Nat. Bank v. Cobbs, 53 Tex. Civ. App. 1, 115 S. W. 345. The number of cattle in a herd cannot be estimated by one who has not seen them for nearly two years. — Gibbens v. Roundtree, (Tex. Civ. App.), 117 S. W. 168. A witness cannot testify as to the value of certain ani- mals at a given time and place, where his only knowledge thereof was what he had been told by one seeking to pur- 524 ORAL EVIDENCE chase such animals. — Gulf C. & S. F. Ry. Co. v. Gillespie & Carlton, 54 Tex. Civ. App. 593, 118 S. W. 628. Where it appears that the opinion of a witness is based upon his own information, as well as that obtained from others, he is competent to testify, but not if the opinion is based entirely upon the knowledge obtained from others. —Ft. Worth & D. C. Ry. Co. v. Arthur, (Tex. Civ. App.), 124 S. W. 213; Houston & T. C. R. Co. v. Tisdale, (Tex. Civ. App.), 109 S. W. 413. A witness need not state the facts upon which his opinion rests, but he must have personal means and opportunity for knowledge thereof, otherwise his opinion is inadmis- sible. — Guerra v. San Antonio Sewer Pipe Co., (Tex. Civ. App.), 163 S. W. 669. The value of materials used in a building cannot be tes- tified to by an expert, who gains his information as to the materials from another to whom he had submitted speci- fications. — Heldenfels v. School Trustees, Dist. No. 7, (Tex. Civ. App.) (> 182 S. W. 386. "CONCLUSIONS" OR "IMPRESSIONS." California. The impressions of a witness as to the intent of another cannot be testified to, but he may state the declarations of the party made to him while such party was engaged in the performance of an act and illustrating the object and intent of its performance. — Tait v. Hall, 71 Cal. 149, 12 P. 391. Kansas. Witnesses are not ordinarily permitted to state in general language their conclusions "that a wife did not want to sign a mortgage on her homestead," and that "she was forced to sign the mortgage," and other expressions of similar import. In all cases they should state the facts, recipe the declarations of the parties present and partici- patlng in the transactions, describe the acts of the parties in interest, and let the jury arrive at their own conclusions. — Gabbey v. Forgeus, 38 Kan. 62, 15 P. 866. TESTIMONY AS TO INTENT AND KNOWLEDGE. The intent of a person in doing an act may be testified to by him.— Fanning v. Green, 156 Cal. 279, 104 P. 308; ORAL EVIDENCE 525 Fleet v. Tichenor, 156 Cal. 343, 104 P. 458; Mahon v. Ran- kin, 54 Or. 412, 102 P. 608. Arkansas. On a prosecution for larceny a witness may tes- tify that the owner of the alleged stolen article told him that the defendant might take it, and that the witness communicated this to the defendant. — Little v. State, (Ark.), 178 S. W. 374. California. Testimony after the act as to intent in mak- ing a conveyance is admissible. — Fagan v. Lentz, 56 Cal. 681, 105 P. 951; Fulkerson v. Stiles, 156 Cal. 703, 105 P. 966. Colorado. On an issue as to whether a transfer of a stock of goods was fraudulent, the parties to the transfer may be asked, and may testify, as to whether the transfer was intended to hinder, delay and defraud creditors. — Brown Bros. & Co. v. Potter, 13 Colo. App. 512, 58 P. 785. Kansas. A party to an agreement cannot testify as to what he had in mind in the preliminary negotiations nor state his unexpressed intent. — Cornelius v. Atchison, T. & S. F. Ry. Co., (Kan.), 87 P. 751. While the circumstances attending the act of a party are competent evidence of the condition or state of his mind in doing it, his own testimony as to his motive, pur- pose and intent is also competent. — Eckerd v. Weve, 85 Kan. 752, 18 P. 870. Where malice is charged in discriminating on account of race or color, the person charged with making the discrim- ination may testify to the state of his mind during the transaction complained of. — Williams v. Chicago, R. I. & P. Ry. Co., 90 Kan. 478, 135 P. 671. Montana. Plaintiff may testify as to his intent with refer- ence to the manner of living he proposed to furnish defend- ant in case she should return to him. — Bordeaux v. Bor- deaux, 43 Mont. 102, 115 P. 25. Nebraska. Where a person's acts are ambiguous, and their effect depends upon the intention with which they were done, he may testify as to his reason for doing them. —Hackney v. Raymond Bros. Clarke Co., 68 Neb. 624, 94 N. W. 822; McCormick Harvesting Mach. Co., 4 Neb. (Unof.) 587, 95 N. W. 627. 526 ORAL EVIDENCE Texas. A servant may testify that he did not know of the danger in performing the work in which he was injured in the way he did. — Texas & N. O. R. Co. v. Plummer, 57 Tex. Civ. App. 563, 122 S. W. 942. PHYSICAL EXAMINATIONS. Examination Compulsory. Arkansas. The court has the power to require a plaintiff to submit to an examination of his person to ascertain if, in the opinion of medical experts, his injury is permanent. — St. Louis Southwestern Ry. Co. v. Dobbins, 60 Ark. 481, 30 S. W. 887. The court may require a plaintiff to submit to an exam- ination of his person to ascertain the nature and extent of the injuries of which he complains. — St. Louis, I. M. & S. R. Co. v. Carter, 93 Ark. 589, 126 S. W. 99. California. The court has the power to order the plaintiff suing for damages for personal injuries to submit to a physical examination by two reputable physicians, her own physicians being permitted to be present. — Johnston v. Southern Pac. Co., 150 Cal. 535, 89 P. 348. Colorado. In actions for personal injuries, whenever it fairly appears that the ends of justice require the disclosure or more certain ascertainment of important facts which can only be disclosed by the physical examination of plain- tiff's person, and the examination may be made without injury to plaintiff's life or health, or the infliction of seri- ous pain, such examination should be applied for and made before trial and should be ordered and had under the direc- tion and control of the trial court. — Western Glass M. Co. v. Schoeninger, 42 Colo. 357, 94 P. 342; Denver City Tram- way Co. v. Roberts, 43 Colo. 522, 96 P. 186. Kansas. On the trial of an action for damages for personal injuries of a permanent as well as temporary character to the plaintiff's eyes, where the plaintiff himself testified concerning his injuries, and no physician or surgeon or medical expert was examined as a witness in the case, the plaintiff may be required by the court, upon a proper ap- ORAL EVIDENCE 527 plication being made therefor by the defendant, to submit his eyes to a reasonable and proper examination by some competent expert, for the purpose of ascertaining the nature, extent, and permanency of his injuries; the court exercising in all such cases a sound judicial discretion. — Atchison, T. & S. F. R. Co. v. Thul, 29 Kan. 333. In an action to recover damages for personal injuries, the trial court has power to require the injured party to submit the unexposed portion of his person to a private examination by physicians and surgeons appointed by the court, when, in the exercise of a sound judgment, it appears to the court that the necessity of the case demands such an examination. — City of Ottawa v. Gilliland, 63 Kan. 165, 65 P. 252. Nebraska. Where, during the trial of an action against a surgeon for damages for malpractice, the plaintiff volun- tarily submits a portion of her body to the inspection of the court and jury, it is error for the court to refuse to permit an examination, by a limited number of reputable surgeons of defendant's selection and school, of that por- tion of the body so exhibited. — Booth v. Andrus, 91 Neb. 810, 137 N. W. 884. In an action for damages for personal injuries, the court has power to order plaintiff to undergo a physical examina- tion, where the circumstances make it necessary and no substantial injury will result. — State v. Troup, 98 Neb. 333, 152 N. W. 748. Nevada. Trial courts have the right to exercise the power of ordering the plaintiff in personal injury cases to submit to a physical examination to ascertain the extent of his injuries, and such power is vested in the sound discretion of the trial judge, and, if he grants or denies an examina- tion, such action on his part will not be reversed unless it discloses a gross abuse of discretion. (Refusal to re- quire plaintiff to submit to an examination of his entire body was not an abuse of discretion, where plaintiff had already submitted to two examinations by physicians of defendant, and plaintiff consented at the trial to have an 528 ORAL EVIDENCE examination of the parts injured.) — Murphy v. Southern Pac. Co., 31 Nev. 120, 101 P. 322. North Dakota. In an action to recover damages for per- sonal injuries alleged to be permanent, the trial court has power to require the injured party to submit her person to an examination of physicians or surgeons designated b> defendant, when, in the exercise of a sound judgment, it appears to the court that the necessity of the case demands such an examination. — Brown v. Chicago, M. & St. P. Ry. Co., 12 N. D. 61, 95 N. W. 153. To permit plaintiff and a physician of her selection after examination of her person, to testify that her injury was permanent, and to deny the defendant the privilege of hav- ing the alleged injuries examined by competent surgeons to enable them to see from what, if any, injuries she suf- fered, their nature, extent, and probable duration, was an abuse of discretion and reversible error. — Brown v. Chi- cago, M. & St. P. Ry. Co., 12 N. D. 61, 95 N. W. 153. Texas. Where plaintiff voluntarily exposed his leg show- ing no apparent marks of injury on its surface, he may be compelled to submit to an examination, but he will not be required to submit to an operation or examination which requires him to be under the influence of an anaes- thetic. — Chicago, R. I. & P. Ry. Co. v. Pemberton, (Tex. Civ. App.), 170 S. W. 108. Washington. A plaintiff suing for injuries to his person may be compelled to submit to a physical examination by experts, on penalty of having his case dismissed. — Lane v. Spokane Falls & N Ry. Co., 21 Wash. 119, 57 P. 367. A physical examination of the injuries alleged to have been suffered by plaintiff will be required to be made in proper cases by impartial physicians, but the plaintiff will not be compelled to submit to an examination by physicians selected by defendant.— Just v. Littlefield, 87 Wash. 299, 151 P. 780. Examination Not Compulsory. The courts, in the absence of a constitutional or statu- tory provision so authorizing, cannot order a plaintiff in an ORAL EVIDENCE 529 action for damages to his person to submit in advance of or during the trial of the cause to an examination of his person by physicians to be appointed by the court. — May v. Northern Pac. Ry. Co., 32 Mont. 522, 81 P. 328; Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388; Austin & N. W. R. Co. v. Cluck, 97 Tex. 172, 77 S. W. 403. Oklahoma. The courts have no power to order a plaintiff in an action for an injury to the person to submit to a sur- gical examination in advance of or during the trial of the cause.— City of Kingfisher v. Altizer, 13 Okl. 121, 74 P. 107. Texas. The court has no power to appoint surgical ex- perts and order an examination by them of a plaintiff who is seeking to recover for physical injuries, and compel him against his consent to submit to such an examination for the purpose of using the testimony of the surgeons as to facts ascertained and opinions formed by them from the examination as to the nature and extent of plaintiff's injuries. — Galveston, H. & S. A. Ry. Co. v. Sherwood, (Tex. Civ. App.), 67 S. W. 776. Where a party has not voluntarily exhibited his person to the jury, a court has no power to compel him to do so. —Austin & N. W. Ry. Co. v. Cluck, 97 Tex. 172, 77 S. W. 403. A court has no power to compel a party against his con- sent to submit to a physical examination by physicians, and the failure of such party, upon the request of his ad- versary, to submit to a physical examination by physicians to be appointed by the court, is simply a matter to be con- sidered by the jury. — International & G. N. R. Co. v. Butcher, (Tex. Civ. App.), 81 S. W. 819. Where a party has once exhibited his person to the jury to show the extent of his injuries, and physicians of his own selection have testified as to the results of an exam- ination by them, he may be required during the course of the trial to re-exhibit them, and to permit an examination of the injured portion of his person by a physician of de- fendant who had already made an examination shortly after the accident. — Houston & T. C. R. Co. v. Anglin, 99 Tex. 349, 89 S. W. 966. 530 ORAL EVIDENCE The court does not have the power to appoint physicians and surgeons to make an examination of the injuries of the plaintiff, and compel the plaintiff to submit to such an examination. — Taylor v. White, (Tex. Civ. App.), 113 S. W. 554; Missouri, K. & T. Ry. Co. v. Rogers, 55 Tex. Civ. App. 93, 117 S. W. 939. REAL EVIDENCE (DEMONSTRATIVE EVIDENCE). In prosecutions for crime, material objects connected therewith are admissible as exhibits: Arizona: Rain v. State, 5 Ariz. 125, 137 P. 550 (burglary; goods stolen). Arkansas: Starchman v. State, 62 Ark. 538, 36 S. W. 940 (drills and punches found in defendant's house, and fitting holes in safe which was blown open). California: People v. Hope, 62 Cal. 291 (burglary; tools found in excavation over vault, and also those in defend- ant's trunk) ; People v. Sullivan, 129 Cal. 557, 62 P. 101 (murder; weapon with which crime was committed); Peo- ple v. Westlake, 134 Cal. 505, 66 P. 731 (homicide; two shirts and two pairs of cuffs owned by deceased and found in possession of accused). Idaho: State v. Allen, 23 Ida. 772, 131 P. 1112 (murder; revolver holster testified to be that of defendant). Nebraska: Savary v. State, 62 Neb. 166, 87 N. W. 34 (murder; skull of deceased and photograph used in ex- planation of cause of death). New Mexico: Territory v. Lobato, 17 N. M. 666, 134 P. 222 (murder; portion of skull of deceased, showing char- acter of one of the wounds). North Dakota: State v. Shonberg, 24 N. D. 532, 140 N. W. 105 (larceny; feeder slats and chains not admitted when not shown to be connected with the crime). Oregon: State v. Russell, 64 Or. 247, 129 P. 1051 (incest; child exhibited to show resemblance) ; State v. Spanos, 66 Or. 118, 134 P. 6 (homicide; shirt and other articles found in place where crime was committed); State v. Pender, 72 Or. 94, 142 P. 615 (murder; revolver with which crime ORAL EVIDENCE 531 was said to have been committed and a package and news- papers which were taken to place of murder). South Dakota: State v. Shields, 13 S. D. 464, 83 N. W. 559 (watch and chain). Texas: Roberson v. State, (Tex. Cr. R.), 49 S. W. 398 (rape; prosecutrix testifying in injured condition). Utah: State v. Inlow, 44 Utah 485, 141 P. 530 (homicide; blood-stained coat worn by wife of accused on evening of murder, the evidence tending to show conspiracy between them). Washington: State v. Cushing, 14 Wash. 527, 45 P. 145 (murder; clothing worn by deceased at the time, and gun with which shooting was committed). In suits for personal injuries the plaintiff may exhibit his injured limb to the jury. — City of Crete v. Hendricks, (Neb.), 90 N. W. 215; Van Horn v. Simpson, 35 S. D. 640, 153 N. W. 883; Texas Traction Co. v. Scoggins, (Tex. Civ. App.), 175 S. W. 1128. In personal injury cases, exhibits of the person and other material objects connected with and illustrative of the in- jury are admissible: Colorado: Colorado Midland Ry. Co. v. McHarry, 41 Colo. 398, 92 P. 915 (injuries to passenger by derailment of train; rotten pieces of wood, purporting to be parts of the ties at the place of accident). Oklahoma: Continental Casualty Co. v. Wynne, 36 Okl. 325, 129 P. 16 (personal injury; injured parts exhibited); Wat- son v. Taylor, 35 Okl. 768, 131 P. 922 (civil action for rape; child said to be the result of the crime, exhibited). Texas: Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. App.), 171 S. W. 309 (personal injury; shoes worn by plaintiff when injury occurred admitted, when shown to be in the same condition). NOTE XXVII. (To Article 62.) Owing to the ambiguity of the word "evidence," which is sometimes used to signify the effect of a fact when proved, 532 ORAL EVIDENCE and sometimes to signify the testimony by which a fact is proved, the expression "hearsay is no evidence" has many meanings. Its common and most important meaning is the one given in Article 14, which might be otherwise expressed by saying that the connection between events, and reports that they have happened, is generally so remote that it is expedient to regard the existence of the reports as irrelevant to the occurrence of the events, except in excepted cases. Article 62 expresses the same thing from a different point of view, and is subject to no exceptions whatever. It asserts that whatever may be the relation of a fact to be proved to the fact in issue, it must, if proved by oral evidence, be proved by direct evidence. For instance, if it were to be proved under Article 31 that A, who died fifty years ago, said- that he had heard from his father B, who died 100 years ago, that A's grandfather C had told B that D, C's elder brother, died without issue, A's statement must be proved by someone who, with his own ears, heard him make it. If (as in the case of verbal slander) the speaking of the words was the very point in issue, they must be proved in precisely the same way. Cases in which evidence is given of character and general opinion may perhaps seem to be exceptions to this rule, but they are not so. When a man swears that another has a good character, he means that he has heard many people, though he does not particularly recollect what people, speak well of him, though he does not recollect all that they said. DOCUMENTS 533 CHAPTER IX. OF DOCUMENTARY EVIDENCE— PRIMARY AND SEC- ONDARY, AND ATTESTED DOCUMENTS. Article 63. proof of content's of documents. The contents of documents may be proved either by primary or by secondary evidence. PRIMARY OR "BEST" EVIDENCE. See Article 65, infra. Necessity of Producing Best Evidence. Secondary evidence must always be received with cau- tion, and then not until every means is shown to have been exhausted in the effort to procure that which is superior: California: Norris v. Russell, 5 Cal. 249 (officer who sold property at tax sale merely testified that he preserved no copy of notice of sale and knew of none; but the printing office, as well as the various fiscal offices connected with the county administration, should have been searched). Colorado: Hartford Fire Ins. Co. v. Smith, 3 Colo. 422 (contents of a letter not admitted, where objection to ex- clude was not met by offer to explain the absence of the letter) ; Crane v. Andrews, 6 Colo. 353 (usages of banks as to numbering and making indorsements on all drafts sent to them erroneously admitted to prove acceptance of a draft apparently not accepted on its face, when neither the person who claimed to have accepted the draft nor the one to whom it was made payable was produced nor their absence accounted for). Idaho. The question being whether certain land was bought with a wile's money, which she claimed to have borrowed from her father, letters from the father, checks, drafts, and the books of the bank, were the best evidence, and ought to have been produced. — Chaney v. Gauld Co., 28 Ida. 76, 152 P. 468. 534 DOCUMENTS Kansas. Record copy of a deed admitted when the ori- ginal is not in possession or control of the party desiring to use it.— Williams v. Hill, 16 Kan. 23. Montana. Error to exclude defendant's offer of cancelled checks which he had given in payment for the cattle in question, as this was the best evidence. — Cuerth v. Arbo- gast, 48 Mont. 209, 136 P. 383. Oklahoma. The best evidence the nature of the cause will permit of shall be required if possible to be had; but, if not possible, then the best evidence that can be had shall be allowed. (Value of insured goods proved by parol where books had been lost or stolen.) — Commercial Union Assur. Co. v. Wolfe, 41 Okl. 342, 137 P. 704. The best evidence the nature of the case will admit of shall always be required, if possible to be had; but when the best evidence is not available, and its absence is prop- erly accounted for, secondary evidence is admissible. (Parol evidence to establish a written contract setting out conditions upon which notes in suit had been executed, improperly admitted, in the absence of showing that the primary evidence was not available). — Farmers' Nat. Bank v. Hartoon, (Okl.), 159 P. 844. Texas. Where an original telegram, which was primary evidence, was outside of the jurisdiction of the court, a copy received by plaintiff and pleaded by him as part of the contract sued on, is admissible as secondary evidence. — Spaulding v. Smith, (Tex. Civ. App.), 169 S. W. 627. Nature of Evidence Produced. California. The production of a record is not necessary to prove an arrest, for an arrest does not necessarily imply that there was a record. — People v. Manning, 48 Cal. 335. Kansas. The plaintiff and defendant entered into a parol contract, whereby plaintiff was to furnish the money and the defendant to conduct a certain business for the plain- tiff in the defendant's name. In an action by the plaintiff against the defendant upon such contract, the plaintiff may show by his own parol testimony what the arrangement was between the plaintiff and the defendant with regard DOCUMENTS 535 to the money, and is not required to show the same by some other kind of evidence. — Beyle v. Reid, 31 Kan. 113, 1. P. 264. The evidence of a father and mother, cognizant of their child's birth, is primary evidence of its date, or the age of the child, although there is a written record thereof in the family Bible.— State v. Woods, 49 Kan. 237, 30 P. 520. Texas. Oral evidence to show that a certain horse was registered is admissible, without producing the record. — National State Bank v. Ricketts, (Tex. Civ. App.), 152 S. W. 646. In a proceeding to enjoin the keeping of a bawdy house, ownership of the property can be shown by the tax asses- sor's rolls, the introduction of deeds thereto not being nec- essary. — Campbell v. Peacock, (Tex. Civ. App.), 176 S. W. 774. Matters Collateral To Issue. Oklahoma. Where plaintiff's ownership of land was not one of the issues in the case, it was not error to permit him to give oral testimony that he owned the land at the time he deeded it to defendant. (Action for purchase price of land.)— Newcomer v. Sheppard, (Okl.), 152 P. 66. Oregon. Where a party has gone into possession under an assignment, parol evidence thereof is admissible to show the relation and understanding of the parties. — Hotel Marion Co. v. Waters, 77 Or. 426, 150 P. 865. Texas. Oral testimony is admissible as to a conveyance collateral to the issues. — Larrabee v. Porter. (Tex. Civ. App.), 166 S. W. 395. Washington. A party may testify as to a statement made by him in a conversation regarding the length of time a bond had to run, without producing the bond, when the object of the testimony was to show his understanding as to its terms.— Seattle Land Co. v. Day, 2 Wash. St. 451, 27 P. 74. Plaintiff suing for commission earned on the sale of real estate is not required to prove defendant's ownership by production of deeds. — Litchfield v. Bowen, 90 Wash. 286, 155 P. 1053. 536 DOCUMENTS. Matters Required To Be In Writing. Arkansas. Where proof of publication of a certain list is required to be by certificate, a matter of record, proof thereof cannot be made by the oral testimony of the pub- lisher on the stand. — Martin v. Allard, 55 Ark. 218, 17 S. W. 878. California. Evidence of a private surveyor as to a survey made by him is by statute inadmissible except to explain or rebut an official survey made by the county surveyor. —Vines v. Whitten, 4 Cal. 230. Kansas. A book of accounts of the treasurer of a school district which was not made an official record as provided by statute is inadmissible to show the state of his accounts. — Hinton v. Nemaha & Jackson Counties School District No. 2, 12 Kan. 573. Matters Not Required To Be In Writing. California. Residence of a defendant in a judgment ren- dered in a justice's court may be testified to by parol. — Jolley v. Foltz, 34 Cal. 321. Oklahoma. The question being whether 30 per cent, of the number of qualified electors in a school district partici- pated in an election, oral testimony is admissible to show the total number of voters in the district, the evidence not being restricted to the registry list, since the law re- quiring registration does not apply to such elections. — McCreary v. Lee, 45 Okl. 201, 145 P. 777. Oregon. The opinion of a supervising architect ordering suspension of work, not being required to be in writing, parol evidence of the fact and terms of suspension of the work is admissible, though letters authorizing such sus- pension were in existence. — Leiter v. Dwyer Plumbing & Heating Co., 66 Or. 474, 133 P. 1180. Texas. Comptroller's instructions to sheriff authorizing employment of counsel to prosecute suits on delinquent tax lists may be proved by parol. — Houston & T. Ry. Co. v. State, 39 Tex. 148. Utah. The fact that commissioners, appointed by the parties interested to supervise certain dams, kept a record DOCUMENTS 537 of their proceedings, which they were not required to do, does not exclude oral testimony as to such proceedings. — Peay v. City of Salt Lake City, 11 Utah 331, 40 P. 206. Matters Covered By Writings. California. Testimony of plaintiff as to his filings on gov- ernment land is inadmissible, no record evidence being offered.— Lincoln v. Sibeck, 27 Cal. App. 61, 148 P. 967. Nebraska. Where a witness has a document before him, testimony as to its contents is inadmissible. — Corn Ex- change Bank v. Ochlare Orchards Co., 97 Neb. 536, 150 N. W. 651. Oklahoma. Where a contract of agency for the sale of automobiles was reduced to writing, the writing is the best evidence. — Ford Motor Co. v. Livesay, (Okl), 160 P. 901. South Dakota. Books of a bank are the best evidence as to whether new deposits were made or old deposits were increased after a certain named time, in preference to the cashier's testimony. — Farmers' State Bank v. Empey, (S. D.), 150 N. W. 936. Texas. Testimony as to authority in writing to draw for a certain amount is inadmissible. — Tinsley v. Penniman, 83 Tex. 54, 18 S. W. 718. Testimony of a buyer of coal sued for the price, as to a shortage of weights, was inadmissible, where there was no attempt to account for the records of weights made by weighers at the mine and at destination. — Richard Cocke & Co. v. Big Muddy Coal & Iron Co., (Tex. Civ. App.), 155 S. W. 1019. Matters Not Covered By Writings. Washington. Where no record was made of orders of the county commissioners, other evidence thereof is admis- sible.— Roberson v. King County, 20 Wash, 259, 55 P. 52. Matters Treated In Account Books. North Dakota. Where a litigant sues upon a book account and the books are shown to be in his possession, a state- ment by the plaintiff that there is owing to him on such 538 DOCUMENTS account a certain sum of money does not constitute com- petent evidence. — Kaye v. Taylor, 28 N. D. 293, 148 N. W. 629. The neglect of a litigant to produce competent evidence which is in his possession, does not justify a court in per- mitting the introduction of that which is secondary and incompetent, and if such court has inadvertently admitted the same over objection, he can later correct the error by excluding the same from the consideration of the jury. (Books of account not produced.) — Kaye v. Taylor, 28 N. D. 293, 148 N. W. 629. Books of account are the best evidence of the contents of the entries made therein. (Testimony of an officer of plaintiff as to value and delivery of goods shown in books inadmissible). — Dr. R. D. Eaton Chemical Co. v. Doherty, 31 N. D. 175, 153 N. W. 966. Oklahoma. A member of the plaintiff firm may testify that the charges contained in the bill of particulars were correct, and that he did the work for which claim was made, though plaintiff's books of account were not offered in evidence.— Whitcomb v. Oiler, 41 Okl. 331, 137 P. 709. Information Derived From Writings. California. Information derived by a, witness from a min- ute book of a corporation, is inadmissible. — Spangenberg v. Nesbitt, 22 Cal. App. 274, 134 P. 343. Texas. The certificate of the clerk of a court that a judg- ment has been properly indexed is not evidence of the fact. —Glasscock v. Stringer, 11 Tex. Civ. App. 514, 32 S. W. 920. A tax collector cannot testify as to what is shown by the tax rolls, as the rolls, or a certified copy thereof, fur- nish the best evidence. — Sullivan v. Fant, (Tex. Civ. App.), 160 S. W. 612. Washington. Secondary evidence of the contents of a let- ter is not admissible, unless the original is accounted for. —J. I. Case Threshing Machine Co. v. Wiley, 89 Wash. 301, 154 P. 437. DOCUMENTS 539 Judgments and Judicial Records. Colorado. Parol evidence is not admissible to prove the amount of a judgment or the cause of action upon which it was recovered. The record, or a transcript thereof, must be produced. — Watson v. Hahn, 1 Colo. 385. Nevada. Suit on a note which defendant claimed was given in consideration of certain timber sold by vendors to defendant, and which was lost through the result of a prior suit to determine ownership of the timber. Oral testimony as to the former suit and judgment inadmissible. — Davis v. Notware, 13 Nev. 421. Oregon. The existence of a judgment or execution under which plaintiff claims title cannot be proven by parol. — Bowick v. Miller, 21 Or. 25, 26 P. 861. Washington. Notice of petition to vacate a town plat, not required by law to be made a part of the record, may be proved by parol. — Fouts v. City of New Whatcom, 14 Wash. 49, 44 P. 111. Corporate Existence and Proceedings. California. Where a corporation is not compelled to ap- point agents by deed or resolution, parol evidence that a person was authorized to act as its agent is admissible.- — Carey v. Philadelphia & C. Petroleum Co., 33 Cal. 694. Idaho. In a suit on a note, plaintiff may show by its cashier that it is a de facto corporation, its articles not being necessary to be produced. — First Nat. Bank v. Walker. 27 Ida. 199, 148 P. 46. North Dakota. Records of the meetings of the directors of a corporation, together with its by-laws, are the best evi- dence of the authority conferred upon its officers. — Grant County State Bank v. Northwestern Land Co., 28 N. D. 479, 150 N. W. 736. Washington. The acts of trustees of a corporation con- ferring authority upon certain officers to perform legiti- mate functions, and the acts of the officers so authorized, may be shown by parol as well as by the minutes of the secretary. — Starwich v. Washington Cut Glass Co., 64 Wash. 42, 116 P. 459. 540 DOCUMENTS Payment of Money. California. Receipts executed by a third party, acknowl- edging the payment of money, are but secondary evidence, as the party executing them is a competent witness to prove their payments, or any other person who saw the payments made. — Ford v. Smith, 5 Cal. 314. Texas. Payment of taxes may be testified to by any per- son who knows as a fact that they were paid. — Sullivan v. Fant, (Tex. Civ. App.), 160 S. W. 612. Washington. Payment of a license fee by a Corporation may be proved by parol. — William A. Eastman & Co. v. Watson, 72 Wash. 522, 130 P. 1144. Testimony of One Having Actual Knowledge of the Facts Recorded. Idaho. A mining partnership may be proved by satisfac- tory parol evidence. — Mayhew v. Burke, 2 Ida. 1056, 29 P. 106. Oregon. A memorandum is but secondary evidence of the facts of which it speaks, the primary evidence being the knowledge of the witness, and the memorandum is not admissible either as an auxiliary or as an aid to the mind in speaking from it, when the witness cannot speak from a knowledge of the facts, or from present recollection thereof. — Manchester Assur. Co. v. Oregon R. & Nav. Co., 46 Or. 162, 79 P. 60. Texas. Information by the conductor of a train on which horses were shipped as to when it was due at a certain destination is admissible as against an objection that it was not the best evidence. — Missouri Pac. Ry. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749. The form and contents of orders for goods given by a tenant, to be charged to the landlord, are not better evi- dence of the fact that they were given by the tenant and that supplies were furnished thereon than the testimony of a witness having knowledge of the fact. — Neblett v. Barron, (Tex. Civ. App.), 160 S. W. 1167. DOCUMENTS 541 An ex-manager of defendants may testify that on behalf of his employers he sent to purchasers letters of confirm- ation of sales made by plaintiff.— E. R. & D. C. Kolp v. Brazer, (Tex. Civ. App.), 161 S. W. 899. Article 64. primary evidence. Primary evidence means the document itself produced for the inspection of the Court, accom- panied by the production of an attesting witness in cases in which an attesting witness must be called under the provisions of articles 66 and 67 ; or an admission of its contents proved to have been made by a person whose admissions are rele- vant under articles 15-20. (a) Where a document is executed in several parts, each part is primary evidence of the document : Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. (b) Where a number of documents are all made by printing, lithography, or photography, or any other process of such a nature as in itself to se- cure uniformity in the copies, each is primary evidence of the contents of the rest ; (c) but where (a) Slatterie v. Pooley, 6 M. & W. 664. (b) Roe d. West v. DaviB, T Ba. 362. (c) R. v. Watson, 2 Star. 129. This case was decided long before the invention of photography; but the judgments de- livered by the Court (Ellenborough, C. J., and Abbott, Bay- ley, and Holroyd, JJ.) established the principle stated in the text. 542 DOCUMENTS they are all copies of a common original, no one of them is primary evidence of the contents of the original, (d) PRIMARY EVIDENCE. Where different impressions of a Avriting are produced by placing carbon paper between the sheets of paper and writing upon the exposed surface, the different sheets are duplicate originals, which, if otherwise competent, may be introduced in evidence, without accounting for the nonproduction of the others. — Engles v. Blocker, (Ark.), 192 S. W. 193; Wilkes v. S. V. Clark Coal & Grain Co.,- 95 Kan. 493, 148 P. 768; Matson v. Glen Lumber Co., (Okl.), 163 P. 128. Arkansas. Where an instrument is executed in duplicate, each party receiving one of the copies, both are originals. —Jones v. Hoard, 59 Ark. 42, 26 S. W. 193. Kansas. Carbon impressions made at the same time are originals and either is admissible in evidence. — Wilkes v. Clark Coal & G. Co., 95 Kan. 493, 148 P. 768. Montana. The copy of a telegram sent in reply to another delivered to a telegraph company for transmission is the original for the purposes of evidence, the one delivered to the addressee being but a copy. — Bond v. Hurd, 31 Mont. 314, 78 P. 582. New Mexico. Where a number of copies are printed from the same type at the same time and by the same process, they are all originals, and each is primary evidence of the contents of the rest.— State v. Ogden, 20 N. M. 636, 151 P. 758. (d) Noden v. Murray, 3 Camp. 224. (A duplicate notarial instrument, made from the copy in the book, is an original. Geralopulo v. Wieler, 10 C. B. 712. Whether a broker's entries in his book, or the bought and sold notes which he issues, are the proper primary evidence, is not agreed. Sievewright v. Archibald, 17 Q. B. 115, holds the former to be, while Durell v. Evans, 1 H. & C. 174, holds that the latter are.) DOCUMENTS. 543 Texas. Carbon copy of letter retained by writer not ad- missible without accounting for the nonproduction of the original. — McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604. Carbon copies of letters alleged to show a contract by correspondence are not admissible as primary evidence. — Walsh v. Methodist Epis. Church, (Tex. Civ. App.), 173 S. W. 241. Utah. The different numbers or impressions of a writing produced by placing carbon paper between the sheets of paper and writing upon the exposed surface are duplicate originals and either may be introduced in evidence with- out accounting for the nonproduction of the other. — De- Michele v. London & Lancashire Fire Ins. Co., 40 Utah 312, 120 P. 846. Washington. At a former trial a witness had testified that a photograph had been taken of the scene of a wreck, that she never saw it, but was shown a newspaper clip- ping of a picture that purported to be a scene of the wreck and said that it was a reasonably correct representation. At the instant trial she could not be produced as a witness, but it was stipulated that her testimony at the former trial might be read. While it was being read it appeared that the clipping which the witness had identified was not with the testimony, but was in the files of the appellate court. Another clipping was offered in evidence and was rejected, it not having been shown that it was cut from the same edition of the newspaper from which the other had been, and not to be an exact duplicate thereof. — Pantages v. Seattle Elec. Co., 63 Wash. 159, 114 P. 1044. Article 65. l-Kticii in DOCUMENTS OT 1'i:i\i\i:y i:\ idknce. The contents of documents must, except in the cases mentioned in article 71, be proved by pri- mary evidence; and in the cases mentioned in article 66 by calling an attesting witness. See Article 63. supra. 544 DOCUMENTS Article 66.* proof of execution of document required by law to be attested. If a document is required by law to be attested, it may not be used as evidence (except in the cases mentioned or referred to in the next arti- cle) if there be an attesting witness alive, sane, and subject to the process of the Court, until one attesting witness at least has been called for the purpose of proving its execution. If it is shown that no such attesting witness is alive or can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwrit- ing of that person. The rule extends to cases in which — the document has been burnt (a) or can- celled; (b) the subscribing witness is blind ; (c) the person by whom the document was executed is prepared to testify to his own execution of it, (d) the person seeking to prove the document is prepared to prove an admission of its execution by the person who executed it, even if he is a (a) Gillies v. Smither, 2 Star. R. 528. (b) Breton v. Cope, Pea. R. 43. (c) Cronk v. Frith, 9 C. & P. 197. (d) R. v. Harringworth, 4 M. & S. 353. ♦See note at end of article 67. DOCUMENTS 545 party to the cause, (e) unless such admission be made for the purpose of, or has reference to, the cause. PROOF OF EXECUTION BY ATTESTING WITNESSES. That part of the common law rule which prefers proof of the signature of the attesting witness to that of the maker has not been universally accepted, whether the document be one that requires attestation, or in fact is attested, though not required to be. Some courts have maintained the admissibility of proof of the maker's hand- writing directly upon its appearing that the testimony of the witness cannot be had. — White v. Holliday, 20 Tex. 679; Mapes v. Leal, 27 Tex. 345; Lapowski v. Taylor, 13 Tex. Civ. App. 624, 35 S. W. 934; Boswell v. First Nat. Bank, 16 Wyo. 161, 92 P. 624. North Dakota. The execution of a chattel mortgage being put in issue, plaintiff, to prove the same, testified himself to the execution thereof by the mortgagor; but he did not call the subscribing witnesses, or prove that they were dead or resided out of the state, or that any effort had been made to secure their testimony. Held, under the common law rule relating to proof of instruments to which there are subscribing witnesses, and our statutes applicable to such a case, the plaintiff has failed to prove the execu- tion of the chattel mortgage by the best evidence. — Bryn- jolfson v. Northwestern Elevator Co., 6 N. D. 450, 71 N. W. 555. Wyoming. By the strict rule of the common law, the pri- mary or best evidence to prove the execution of a deed or other private writing having a subscribing witness is generally the testimony of such witness, if available, or, if not, then proof of his handwriting if that be feasible. If neither the testimony of the attesting witness nor proof of his handwriting be attainable, then it is competent to (e) Call v. Dunning, 4 Ea. 53. See, too, Whyman v. Garth, 8 Ex. 803; Randall v. Lynch, 2 Camp. 357. 546 DOCUMENTS prove the signature of the grantor or maker of the instru- ment, and that will be sufficient. — Boswe.ll v. First Nat. Bank, 16 Wyo. 161, 92 P. 624. NECESSITY OF TESTIMONY OF ATTESTING WITNESS. As to wills, the procedure of showing execution by at- testing witnesses is regulated by statute. See 2 Wigmore Ev., § 1304. Arkansas. An attesting witness is unnecessary, when the deed has been acknowledged by the grantor. — Cocke v. Brogan, 5 Ark. 693. The testimony of a subscribing witness must be had if obtainable to prove the execution of an instrument. — Brock v. Saxton, 5 Ark. 708; Hutchinson v. Kelly, 10 Ark. 178. California. The execution of an instrument must be proved by the testimony of the subscribing witness, if pos- sible.— Stevens v. Irwin, 12 Cal. 306. Nevada. The execution of an instrument must be proved by the testimony of a subscribing witness, if possible. The admission of the adverse party that he executed the instru- ment does not dispense with this proof. — Kalmes v. Ger- rish, 7 Nev. 31. Oregon. The statute requires proof of the execution of an instrument by calling a subscribing witness if there be one living within the state. If dead or out of the state or in- capable of testifying, proof of his handwriting is sufficient, and such statute is mandatory. — Hannan v. Greenfield, 36 Or. 97, 58 P. 888. Texas. The execution of an instrument must be proved by the testimony of the subscribing witness, if possible. — Craddock v. Merrill, 2 Tex. 494; Grainer v. Cotton, 49 Tex. 101; International & G. N. Ry. Co. v. McRae, 82 Tex. 614, 18 S. W. 672; Harris v. Hoskins, 2 Tex. Civ. App. 486, 22 S. W. 251; Smith v. Dunman, 9 Tex. Civ. App. 319, 29 S. W. 432; Lewis v. Bell, (Tex. Civ. App.), 40 S. W. 747. A grantor who is not interested in the event of the suit may testify in proof of the execution of the instrument without accounting for the attesting witness. — White v. Holliday, 20 Tex. 679. DOCUMENTS 547 The admission of the adverse party that he executed the instrument does not dispense with the testimony of the subscribing witnesses. — Wiggins v. Fleishel, 50 Tex. 57. UNAVAILABILITY OF ATTESTING WITNESSES. As to what shall be considered a sufficient cause of un- availability of attesting witnesses so as to permit the proof of execution otherwise, statutes have frequently leg- islated, especially as to wills. (2 Wigmore Ev., § 1310.) The testimony of an attesting witness who is beyond the jurisdiction of the court is universally regarded as un- available, and proof of that fact lets in secondary evidence of the execution of the document: Arkansas: Wilson v. Royston, 2 Ark. 315; Tatum v. Mohr, 21 Ark. 349. California: Stevens v. Irwin, 12 Cal. 306; McGarrity v. Byington, 12 Cal. 426. Nebraska: Buchanan v. Wise, 34 Neb. 695, 52 N. W. 163; Jewell v. Chamberlain, 41 Neb. 254, 59 N. W. 784. Texas: Lapowski v. Taylor, 13 Tex. Civ. App. 624, 35 S. W. 934; Frazier v. Moore, 11 Tex. 755. Oregon. To prove the execution of an instrument the sub- scribing witness must be called, if possible; if he cannot be had, proof of his handwriting and that of the party is sufficient. — Hannan v. Greenfield, 36 Or. 97, 58 P. 888. Texas. Where the attesting witness is a nonresident, sec- ondary evidence of the execution of the instrument may be received.— Lapowski v. Taylor, 13 Tex. Civ. App. 624, 35 S. W. 934. Wyoming. The fact of execution and attestation of an in- strument abroad gives rise to the presumption that proof of the handwriting of the attesting witness is not attain- able within the jurisdiction, so that in such event it is not incumbent upon the party offering the instrument to show otherwise that diligent and unsuccessful search had been made for proof of such handwriting.— Boswell v. First Nat. Bank, 16 Wyo. 161, 92 P. 624. 548 DOCUMENTS An attesting witness who is not within the jurisdiction of the court is universally regarded as unavailable, and proof of that fact lets in secondary evidence of the con- tents of the instrument; and it is equally well settled that, where the execution and attestation occurred out of the jurisdiction, it is to be presumed, at least in the absence of contrary evidence, that the subscribing witness is out of the jurisdiction at the time of trial. — Boswell v. First Nat. Bank, 16 Wyo. 161, 92 P. 624. PROOF OF EXECUTION. Where the attesting witness is beyond the jurisdiction of the court, his handwriting must be proved to entitle the document to be admitted in evidence. — Wilson v. Roys- ton, 2 Ark. 315; Nicks v. Rector, 4 Ark. 251; Brock v. Saxton, 5 Ark. 708; Tatum v. Mohr, 21 Ark. 349; Delony v. Delony, 24 Ark. 7; Stevens v. Irwin, 12 Cal. 306; McGar- rity v. Byington, 12 Cal. 426. California. Where a deed attested by witnesses is lost, those appearing to be attesting witnesses by a copy there- of should be called if available. — Smith v. Brannan, 13 Cal. 107, 115. To make a copy of an unrecorded deed evidence, the loss of the original being shown, the testimony of the sub- scribing witnesses to the deed, if such there be, should be had, at least to the fact of the execution of the paper, unless they are shown to be without the jurisdiction of the court. — Smith v. Brannan, 13 Cal. 107. When the subscribing witness to a written instrument is beyond the jurisdiction of the court, such instrument is admissible in evidence upon proof of the signature of the grantor or obligor, without proving the handwriting of the subscribing witness, unless the instrument is one which the law requires to be attested by witnesses, in which case proof of the handwriting of both parties and subscribing witnesses might be necessary.— Landers v. Bolton, 26 Cal. 393. Where a conveyance not acknowledged is offered in evi- dence, and it was proved that it was executed by the DOCUMENTS 549 grantor and witnessed by subscribing witnesses out of the state, and there is no evidence to show that the subscrib- ing witnesses were ever in the state, a sufficient presump- tion is raised that the subscribing witnesses are not with- in the jurisdiction of the court to let in secondary evidence of its execution by the grantor. — Landers v. Bolton, 26 Cal. 393. If the evidence of the attesting witness is unavailable, proof of the handwriting of the maker, or proof of execu- tion by him is sufficient. — Landers v. Bolton, 26 Cal. 395; McMinn v. O'Connor, 27 Cal. 238; McMinn v. Whelan, 27 Cal. 300. Nebraska. Where the subscribing witness is beyond the jurisdiction of the court, the execution of an instrument may be proved by others. — Buchanan v. Wise, 34 Neb. 695, 52 N. W. 163; Jewell v. Chamberlain, 41 Neb. 254, 59 N. W. 784. Oklahoma. Instruments executed, acknowledged and at- tested according to law may be read in evidence without further proof of execution.— Comp. Laws (1909), § 1209. Oregon. Where the attesting witness cannot be produced his handwriting as well as that of the party must be proved.— Hannan v. Greenfield, 36 Or. 103, 58 P. 888; Columbia Valley Trust Co. v. Smith, 56 Or. 6, 107 P. 465; Marks v. Wilson, 72 Or. 5, 143 P. 906. Texas. Where a subscribing witness is incompetent to act as such, he is also incompetent to prove the execution of the deed.— Hardin v. Sparks, 70 Tex. 429, 7 S. W. 769. Where an original deed had been on file three days before trial and no objection had been made, due execution of such deed as altered will be presumed under Sayles' Civ. St., Art. 2257.— House v. Robertson, (Tex. Civ. App.), 34 S. W. 640. Proof of the execution of letters by the writer is a pre- requisite to their admission. — Quanah, A. & S. Ry. Co. v. Drummond, (Tex. Civ. App.), 147 S. W. 728. 550 DOCUMENTS Article 67.* cases in which attesting witness need not be called. In the following cases, and in the case men- tioned in article 88, but in no others, a person seeking to prove the execution of a document re- quired by law to be attested is not bound to call for that purpose either the party who executed the deed or any attesting witness, or to prove the handwriting of any such party or attesting wit- ness — (1) When he is entitled to give secondary evi- dence of the contents of the document under ar- ticle 71 (a) ; (a) (2) When his opponent produces it when called upon and claims an interest under it in reference to the subject-matter of the suit; (b) (3) When the person against whom the doc- ument is sought to be proved is a public officer bound by law to procure its due execution, and who has dealt with it as a document duly exe- cuted, (c) (a) Cooper v. Tamswell, 8 Tau. 450; Poole v. Warren, 8 A. & E. 588. (b) Pearce v. Hooper, 3 Tau. 60; Rearden v. Minter, 5 M. & G. 204. As to the sort of interest necessary to bring a case within this exception, see Collins v. Bayntun, 1 Q. B. 118; Jackson v. Kingsley, 17 Johns. 158; McGregor v. Wait, 10 Gray 72. (c) Plumer v. Brisco, 11 Q. B. 46. Bailey v. Bidwell, 13 M. & W. 73, would perhaps justify a slight enlargement of the exception, but the circumstances of the case were very peculiar. Mr. Taylor (ss. 1650-1651) considers it doubtful whether the rule extends to instruments executed by corpo- *See note at end of article. DOCUMENTS 551 (4) [When the instrument is only incidentally in issue.] (5) [Under numerous statutory enactments, deeds acknowledged as provided by law are ad- missible without further proof of execution.] (d) WHEN ATTESTING WITNESS NOT CALLED. Instruments Collaterally Involved. Colorado. When the validity of an instrument is not in issue, it may be introduced in evidence and the execution proved by any competent evidence. The attesting witness need not be called. (Forcible entry and detainer to re- cover possession on apparent title derived through trus- tee's deed, answer not attacking validity of deed. Whether certificate of acknowledgment was sufficient to prove exe- cution, immaterial.) — Smith v. Soper, 12 Colo. App. 264, 55 P. 195. Dakota. When an instrument is used collaterally, sec- ondary evidence is admissible, and it is not necessary to call the subscribing witnesses. (Prosecution for false pretenses by assignment of fictitious mortgage and note. Mortgage admissible without production of subscribing witnesses.)— Territory v. Ely, 6 Dak. 128, 50 N. W. 623. Texas. Conveyances not forming the basis of the action, but merely proof of collateral matters, may be proved by parol. (Action by children of first wife against second wife of deceased father for rights under mutual wills of their father and mother. Testimony of a daughter that her mother gave a one-half interest in certain lands to witness' uncle for his half interest in other lands, admis- sible.)— Larrabee v. Porter, (Tex. Civ. App.), 166 S. W. 395. rations, or to deeds enrolled under the provisions of any Act of Parliament, but his authorities hardly seem to support his view; at all events, as to deeds by corporations. Scott v. Waithman, 3 Starkie, N. P. 168. (d) [3 Wigmore Ev., § 1676.] 552 DOCUMENTS ACKNOWLEDGMENT OF INSTRUMENTS. Purpose and Effect. California. The purpose of a certificate of acknowledg- ment is to entitle the deed to be recorded, and to be ad- mitted in evidence without further proof of execution. — Pogarty v. Finlay, 10 Cal. 239. The acknowledgment of a deed is an admission by the grantor that it is his act and deed. — Blaisdell v. Leach, 101 Cal. 405, 35 P. 1019. Idaho. A proper acknowledgment is as good a witness to a signature by mark as if the person taking the acknowl- edgment had written his name at the. foot of the document as a witness to a signature by mark. — -First Nat. Bank v. Glenn, 10 Ida. 224, 77 P. 623. The person whose name appears on an instrument, by his own acknowledgment properly taken, admits such name and the execution of the instrument as his own name and act, and such admission is legal evidence of the fact.— First Nat. Bank v. Glenn, 10 Ida. 224, 77 P. 623. Kansas. The certificate of acknowledgment is prima facie evidence of due execution. — Wright v. Bacheller, 16 Kan. 259; Wilkins v. Moore, 20 Kan. 538. Nebraska. The office of an acknowledgment is to entitle an instrument to record and to permit its admission in evidence without further proof of execution. — Burbank v. Ellis, 7 Neb. 156; Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 489; Linton v. Cooper, 53 Neb. 400, 73 N. W. 731. As Proof of Execution. Arizona. An instrument executed, acknowledged and at- tested according to law may be read in evidence without further proof of execution. — Epperson v. Crozier, 10 Ariz. 30 85 P. 482. California. Private writings, except wills, may be ac- knowledged or proved and certified, and the certificate of acknowledgment is prima facie evidence of execution. — Fogarty v. Finlay, 10 Cal. 239; Landers v. Bolton, 26 Cal. 393; Wetherbee v. Dunn, 32 Cal. 106; Wedel v. Hennan, DOCUMENTS 553 59 Cal. 507; Anthony v. Chapman, 65 Cal. 73, 2 P. 889; Moore v. Hopkins, 83 Cal. 270, 23 P. 318; Eltzroth v. Ryan, 89 Cal. 135, 26 P. 647; Purser v. Eagle Lake Land & Irr. Co., Ill Cal. 139, 43 P. 523; McGorray v. Robinson, 135 Cal. 312, 67 P. 279; Adams v. Hopkins, 144 Cal. 19, 77 PI 712. Instruments acknowledged or proved and certified ac- cording to law, may, together with the certificate of ac- knowledgment or proof, be read in evidence without further proof. Also the original record or a certified copy thereof. — Landers v. Bolton, 26 Cal. 393; Murray v. Tulare I. Co., 120 Cal. 311, 49 P. 563; McGorray v. Robinson, 135 Cal. 312, 67 P. 279; McDougall v. McDougall, 135 Cal. 316, 67 P. 778. Colorado. The acknowledgment of an instrument is a means of proving its execution. — Holladay v. Dailey, 1 Colo. 460; Owers v. Olathe Silver Min. Co., 6 Colo. App. 1, 39 P. 980. A properly acknowledged deed may be read in evidence without, in the first instance, additional proof of execution. —Knight v. Lawrence, 19 Colo. 425, 36 P. 242. Instruments acknowledged or proved in accordance with law of the state, or the local laws of a mining district, may be read in evidence without additional proof of execution. —McAllister v. People, 28 Colo. 156, 63 P. 308. Kansas. Instruments executed, acknowledged and at- tested according to law may be read in evidence without further proof of execution. — Simpson v. Mundee, 3 Kan. 172; Bernstein v. Smith, 10 Kan. 60; Williams v. Hall, 16 Kan. 23; Wright v. Bacheller. 16 Kan. 259; Wilkins v. Moore, 20 Kan. 538; Stratton v. Hawks, 43 Kan. 538, 23 P. 591; Andrews v. Reed, 57 Kan. 912, 48 P. 29. A properly acknowledged deed may be read in evidence without further proof of execution. — Wilkins v. Moore, 20 Kan. 538. Montana. The modern statutes relating to acknowledg- ment of instruments have changed the common law method of proof of execution.— First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718. 554 DOCUMENTS Nebraska. Instruments executed, acknowledged and at- tested according to law are admissible in evidence without further proof of execution. — Burbank v. Ellis, 7 Neb. 156; First Nat. Bank v. Ridpath, 47 Neb. 96, 66 N. W. 37; Hor- bach v. Tyrrell, 48 Neb. 514, 67 N. W. 485; Thams v. Sharp, 49 Neb. 237, 68 N. W. 474; Dorsey v. Conrad, 49 Neb. 443, 68 N. W. 645; Linton v. Cooper, 53 Neb. 400, 73 N. W. 731; McKenzie v. Beaumont, 70 Neb. 179, 97 N. W. 225. North Dakota. Instruments executed, acknowledged and attested according to law may be read in evidence without further proof of execution.— Brynjolfson v. Northwestern Elevator Co., 6 N. D. 450, 71 N. W. 555; Grandin v. Em- mons, 10 N. D. 223, 86 N. W. 723. Oklahoma. A properly acknowledged deed may be read in evidence without further proof of execution, though the execution be denied under oath. — Dyal v. Norton, (Okl.), 150 P. 703. The acknowledgment to a deed is sufficient attestation of the signature of a witness signing by mark. — Campbell v. Harsh, 31 Okl. 436, 122 P. 127; Hilsmeyer v. Blake, 34 Okl. 477, 125 P. 1129; Dyal v. Norton, (Okl.), 150 P. 703. Oregon. Instruments executed, acknowledged and attested according to law may be read in evidence without further proof of execution. — Watson v. Dundee M. & T. Inv. Co., 12 Or. 480, 8 P. 548; Stanley v. Smith, 15 Or. 508, 16 P. 174. South Dakota. Instruments executed, acknowledged and attested according to law may be read in evidence without further proof of execution. — State v. Serenson, 7 S. D. 277, 64 N. W. 130; Northwestern Loan & B. Co. v. Jonasen, 11 S. D. 566, 79 N. W. 840; Connor v. Corson, 13 S. D. 550, 83 N. W. 588; Bliss v. Waterbury, 27 S. D. 429, 131 N. W. 731. Utah. Instruments executed, acknowledged and attested according to law are admissible in evidence without further proof of execution. Private writings, when acknowledged, are prima facie proof of due execution. — Bullion-B. & C. M. Co. v. Eureka Hill M. Co., 5 Utah 3, 11 P. 515. DOCUMENTS 555 Washington. A certified copy of a mortgage from the rec- ords of the county auditor's office is admissible in evidence without further proof of execution than the acknowledg- ment thereon. — Howard v. Gemming, 10 Wash. 30, 38 P. 766. An original instrument with a certificate of acknowledg- ment in due form is prima facie proof of execution. — Blewett v. Bash, 22 Wash. 536, 61 P. 770. Wyoming. Instruments executed, acknowledged and at- tested according to law are admissible in evidence without further proof of execution. — Boswell v. First Nat. Bank, 16 Wyo. 161, 92 P. 624. Imperfections In, or Lack of, Acknowledgment. Documents which are required to be acknowledged, to which no acknowledgment is appended, or so defectively acknowledged as to amount to a nullity, require proof of execution before being admissible in evidence. In such cases the common law rule generally prevails as to the mode of proof: California: Fogarty v. Finlay, 10 Cal. 239; Landers v. Bolton, 26 Cal. 393; Fresno Canal & Irr. Co. v. Dunbar, 80 Cal. 530, 22 P. 275. Colorado: McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Trow- bridge v. Addoms, 23 Colo. 518, 48 P. 535; Milwaukee G. M. Co. v. Tomkins-Christy, 26 Colo. App. 155, 141 P. 527; Owers v. Olathe Silver Min. Co., 6 Colo. App. 1, 39 P. 980. Kansas: Rullman v. Barr, 54 Kan. 643, 39 P. 179. Nebraska: Kittle v. St. John, 10 Neb. 605, 7 N. W. 271; Linton v. Cooper, 53 Neb. 400, 73 N. W. 771. Nevada: Kalmes v. Gerrish, 7 Nev. 31. North Dakota: Brynjolfson v. Northwestern Elev. Co., 6 N. D. 450, 71 N. W. 555. Texas: McLane v. Canales, (Tex. Civ. App.), 25 S. W. 29. Arizona. A bill of sale of cattle is admissible in evidence in a suit for conversion, though not acknowledged as re- quired by statute. — Epperson v. Crozier, 10 Ariz. 30, 85 P. 482. 556 DOCUMENTS California. An unacknowledged instrument or one defec- tively executed or acknowledged must be proved according to the ordinary rules of law applicable. — Fogarty v. Fin- lay, 10 Cal. 239; Landers v. Bolton, 26 Cal. 393; Fresno Canal & Irr. Co. v. Dunbar, 80 Cal. 530, 22 P. 275. A certificate of acknowledgment is only prima facie evi- dence of the execution of the writing, and may be contro- verted by the testimony of the party executing the docu- ment.— Moore v. Hopkins, 83 Cal. 270, 23 P. 318; Le Mes- nager v. Hamilton, 101 Cal. 532, 35 P. 1054. Colorado. Further proof of the execution of a deed, be- fore it will be admissible in evidence, is required, where the acknowledgment is not properly authenticated. — Mc- Ginnis v. Egbert, 8 Colo. 41, 5 P. 652. The execution of an unacknowledged deed must be proved according to the rules of the common law. — Owers v. Olathe Silver Min. Co., 6 Colo. .App. 1, 39 P. 980. It is not error to admit a defectively acknowledged deed in evidence over the objection that it is not properly ac- knowledged, where there is no objection on the ground that its execution was not otherwise proved. — Lambert v. Murray, 52 Colo. 156, 120 P. 415. Kansas. A deed, the certificate of acknowledgment to which is without a seal, is not entitled to record and hence the record of such an instrument is inadmissible in evi- dence.— Meskimen v. Day, 35 Kan. 46, 10 P. 14. But where the original instrument is put in evidence without special exception to the acknowledgment, it is competent. — Rullman v. Barr, 54 Kan. 643, 39 P. 179. A certificate of acknowledgment is only prima facie evi- dence of the execution of the instrument, and may be im- peached by parol. — People's Gas Co. v. Fletcher, 81 Kan. 76, 105 P. 34. Montana. The fact that a notary taking an acknowledg- ment was a nephew and attorney of a person interested in its procurement does not invalidate it. — First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718. DOCUMENTS 557 Nebraska. An unacknowledged instrument must be proved by the rules of the common law. — Kittle v. St. John, 10 Neb. 605, 7 N. W. 271; Linton v. Cooper, 53 Neb. 400, 73 N. W. 771. An unacknowledged instrument cannot be admitted as evidence until its execution is proven. — Linton v. Cooper, 53 Neb. 400, 73 N. W. 731. The omission of the acknowledgment to an instrument renders it invalid, and the omission cannot be supplied by parol.— Solt v. Anderson, 71 Neb. 826, 99 N. W. 678. Oklahoma. A palpable clerical error in the acknowledg- ment of a deed will not disqualify the instrument as evi- dence.— Mosier v. Momsen, 13 Okl. 41, 74 P. 905. Washington. A deed properly acknowledged is admissible in evidence, though the record thereof fails to show any acknowledgment.— Gardner v. Port Blakely Mill Co., 8 Wash. 1, 35 P. 402. NOTE XXVIII. (To Articles 66 and 67.) This is probably the most ancient, and is, as far as it extends, the most inflexible of all the rules of evidence. The following characteristic observations by Lord- Ellenborough occur in R. v. Harringworth, 4 M. & S. 353: "The rule, therefore, is universal that you must first call the subscribing witness; and it is not to be varied in each particular case by trying whether, in its application, it may not be productive of some inconvenience, for then there would be no such thing as a general rule. A lawyer who is well stored with these rules would be no better than any other man that is without them, if by mere force of specu- lative reasoning it might be shown that the application of such and such a rule would be productive of such and such an inconvenience, and therefore ought not to prevail; but if any general rule ought to prevail, this is certainly one that is as fixed, formal, and universal as any that can be stated in a court of justice." In Whyman v. Garth, 8 Ex. 807, Pollock, C. B., said, "The parties are supposed to have agreed inter se that the deed shall not be given in evidence without his [the attesting wit- ness] being called to depose to the circumstances attending its execution." 558 DOCUMENTS In very ancient times, when the jury were witnesses as to matter of fact, the attesting witnesses to deeds (if a deed came in question) would seem to have been summoned with, and to have acted as a sort of assessors to, the jury. See as to this, Bracton, fo. 38a; Portescue de Laudibus, ch. xxxii, with Selden's note; and cases collected from the Year-books in Brooke's Abridgment, tit. Testmoignes. For the present rule, and the exceptions to it, see 1 Ph. Ev. 242-261; T. E. ss. 1637-1642; R. N. P. 147-150; Best, ss. 220, &c; [2 Wigmore Ev., §§ 1285-1321.] The old rule which applied to all attested documents was restricted to those required to be attested by law, by 17 & 18 Vict. c. 125, s. 26, and 28 & 29 Vict. c. 18, ss. 1 & 7. Article 68. proof when attesting witness denies the execution. If the attesting witness denies or does not rec- ollect the execution of the document, its execution may be proved by other evidence, (a) ATTESTING WITNESS DENYING EXECUTION. Montana. If the subscribing witness to a private writing denies or does not recollect the execution of the document, the execution thereof may be proved by other evidence. —Code (1907), § 7945. Nebraska. Where the subscribing witness denies or does not recall the execution of an instrument, the execution may be proved by others. — C. C. P., § 343; Buchanan v. Wise, 34 Neb. 695, 52 N. W. 163; Jewell v. Chamberlain, 41 Neb. 254, 59 N. W. 784. Utah. Where the subscribing witness denies or has for- gotten, the execution of a written instrument may be proved by other evidence. — Comp. Laws (1907), § 3404. (a) "Where an attesting witness has denied all knowledge of the matter, the case stands as if there were no attesting witness." Talbot v. Hodson, 7 Tau. 251, 254; [2 Wigmore Ev., § 1317.] DOCUMENTS 559 Article 69. proof of document not required by law to re attested. An attested document not required by law to be attested may in all cases whatever, civil or criminal, be proved as if it was unattested, (a) PROOF OF WRITTEN INSTRUMENTS. Arkansas. The execution of a deed may be proved either by the testimony of the subscribing witness, or by an ac- knowledgment properly taken. — Cocke v. Brogan, 5 Ark. 69'3; Dixon v. Thatcher, 14 Ark. 141; McNeill v. Arnold, 17 Ark. 154; Hecht v. Caughron, 46 Ark. 132. The proof of the handwriting of the maker of an instru- ment is preferred to proof of that of the attesting witness who signed by mark. — Delony v. Delony, 24 Ark. 7. An instrument must be acknowledged, filed and recorded before it is admissible in evidence without proof of exe- cution. — Wilson v. Spring, 38 Ark. 181; Watson v. Billings, 38 Ark. 278; Dorr v. School District, 40 Ark. 237; Griesler v. McKennon, 44 Ark. 517. California. Conveyances of real estate, if acknowledged as required by law, are admissible in evidence without further proof; but, if not so acknowledged, must be proved according to the ordinary rules of law applicable to the subject.— Landers v. Bolton, 26 Cal. 393. Kansas. Where the execution of a deed is proved, it is then immaterial whether the deed was acknowledged or not and such unacknowledged deed possesses title equally with one duly acknowledged. — Missouri Pac. Ry. Co. v. Houseman, 41 Kan. 300, 21 P. 284. (a) 17 & 18 Vict. c. 125, s. 26; 28 & 29 Vict. c. 18, ss. 1, 7. [By the common law, such documents must be proved in the same way as those which the law requires to be attested. Such is, no doubt, the rule, in the absence of statutory con- trol, in this country. For authentication of documents, by age, contents, official custody, and by purporting official seal or signature, see 4 Wigmore Ev., §§ 2139-2169.] 560 DOCUMENTS An unacknowledged instrument must be proved by the rules of the common law. — Gray v. Ulrich, 8 Kan. 112; Rullman v. Barr, 54 Kan. 643, 39 P. 179; Missouri Pac. R. Co. v. Houseman, 41 Kan. 300, 21 P. 284. North Dakota. In many states there are statutory provi- sions providing for the manner of proof of the execution of written instruments. Perhaps it is not entirely clear whether such provisions relate to the proof of the instru- ment upon the trial of cases, or is strictly confined to the mode of proving the execution for the purpose of acknowl- edgment. While the language generally used in such pro- visions seems to strongly favor the latter construction, yet the question is, undoubtedly still an open one. — Bryn- jolfson v. Northwestern Elev. Co., 6 N. D. 450, 71 N. W. 555. Texas. Where the attesting witness is unavailable or be- yond the jurisdiction of the court, his handwriting must . be proved to entitle a document to be admitted as evidence. — Craddock v. Merrill, 2 Tex. 494; Frazier v. Moore, 11 Tex. 755, Gainer v. Cotton, 49 Tex. 101; International & G. N. Ry. Co. v. McRae, 82 Tex. 614, 18 S. W. 672; Harris v. Hos- kins, 2 Tex. Civ. App. 486, 22 S. W. 251; Smith v. Dunman, 9 Tex. Civ. App. 319, 29 S. W. 432. An unacknowledged instrument must be proved by the rules of the common law. — McLane v. Canales, (Tex. Civ. App.), 25 S. W. 29. Where the attesting witness is unavailable, the hand- writing of the witness, or of the party, or the testimony of the party may be admitted to prove the execution of the instrument. — Mapes v. Leal, 27 Tex. 345. It must be shown that letters purporting to be those from a certain party were in fact written or signed by him.— Denning, ex parte, 50 Tex. Cr. R. 629, 100 S. W. 401. Washington. If either party, before trial, allow the other an inspection of the writing, and deliver him a copy with notice that he intends to read the same in evidence at the trial, it may be so read without proof of genuineness or execution, unless the execution thereof is denied on oath before the trial.— R. & B. Codes and Stats. (1910), § 1263; Beebe v. Redward, 35 Wash. 615, 77 P. 1052. DOCUMENTS 561 The fact that a document was not found in the land offices in Oregon where it properly belonged, but in the general land office at Washington, did not discredit it as evidence, and a duly certified copy was properly admitted in evidence. — Sylvester v. State, 46 Wash. 585, 91 P. 15. Article 70. secondary evidence. Secondary evidence means — (1) Examined copies, exemplifications, office copies, and certified copies : (a) (2) Other copies made from the original and proved to be correct: (3) Counterparts of documents as against the parties who did not execute them: (b) (4) Oral accounts of the contents of a docu- ment given by some person who has himself seen it. SECONDARY EVIDENCE. Arkansas. Where an alleged lost instrument would take the agreement out of the statute of frauds, parol evidence of its contents is admissible. — Southern Cotton Oil Co. v. Coleman, (Ark.), 170 S. W. 992. California. Letter press copies are the best evidence of the contents of letters next to the originals themselves. — Ford v. Cunningham, 87 Cal. 209, 25 P. 403. After proper notice to produce a letter and default by a party, a longhand copy shown to be such is admissible though not a facsimile. — Grant v. Dreyfus, (Cal.), 52 P. 1074. (a) See chapter X. [2 Wigmore Ev., § 1177, et seq.] (b) Munn v. Godbold, 3 Bing. 292. 562 DOCUMENTS The contents of a lost deed may be testified to from the recollection of the witness. — King v. Samuel, 7 Cal. App. 55, 93 P. 391. Colorado. Unless authorized by law, the contents of the journal of a charter convention are inadmissible in evi- dence. — People ex rel Bottom v. Lindsley, 37 Colo. 476, 86 P. 352. Idaho. Where the board of county commissioners took proper action but mislaid or lost the documents and papers forming the basis of such action, and full and complete record was not made, oral testimony is admissible to show the entire proceedings. — Sims v. Milwaukee Land Co., 20 Ida. 513, 119 P. 37. Kansas. Where the original of a writing cannot be pro- duced, a copy thereof made some two years after the time the original was executed by one who knew the contents of the original is admissible as secondary evidence. — Wal- ter v. Calhoun, 88 Kan. 801, 129 P. 1176. Texas. If the instrument itself is not admissible, oral proof of its contents cannot be received. — Burton v. State, 51 Tex. Cr. R. 196, 101 S. W. 226; Harris v. State, 72 Tex. Cr. R. 117, 161 S. W. 125. Article 71. cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the con- tents of a document in the following cases — (a) When the original is shown or appears to be in the possession or power of the adverse party. and when, after the notice mentioned in article 72, he does not produce it; (a) (a) R. v. Watson, 2 T. R. 201. Entick v. Carrington, 19 S. T. 1073, is cited by Mr. Phillips as an authority for this proposition. I do not think it supports it, but it shows the necessity for the rule, as at common law no power existed to compel the production of documents. DOCUMENTS 563 (b) When the original is shown or appears to be in the possession or power of a stranger not legally bound to produce it, and who refuses to produce it after being served with a subpoena duces tecum, or after having been sworn as a witness and asked for the document and having admitted that it is in court; (b) (c) When the original has been destroyed or lost, and proper search has been made for it; (c) (d) When the original is of such a nature as not to be easily movable, (d) or. is in a country from which it is not permitted to be removed ; (e) (e) When the original is a public docu- ment; (f) (/) [When the document is required or au- thorized by law to be registered and the record or a certified copy thereof is made evidence by statute.] (g) (g) When the original is a document for the proof of which special provision is made by any (b) Miles v. Oddy, 6 C. & P. 732; Marston v. Dowries, 1 A. A K 31; [2 Wigmore Ev., §§ 1211-1213.] (c) 1 Ph. Ev. s. 452; 2 Ph. Ev. 281; T. E. (from Greehleaf) s. 399; [2 Wigmore Ev., §§ 1193-1198]; R. v. Haworth, 4 C. & P. 254. (d> Mortimer v. McCallan, 6 M. & W. 67, 68 (this was the case of a libel written on a wall); Bruce v. Nicolopulo, 11 Ex. 133 (the case of a placard posted on a wall); [2 Wigmore By., §§ 1215-1217]. (e) Alivon v. Furnival, 1 C. M. & R. 277, 291-292. (Or be- yond the jurisdiction of the court. Burton v. Driggs, 20 Wall. (U. S.) 125.) (f) See chapter X; [2 Wigmore Ev., §§ 1218-1222]. (g) [Ibid.; 3 Wigmore Ev., § 1651. The original of the learned author's text read as follows: "(f) When the docu- ment Is an entry in a banker's book proof of which is ad- missible under article 3G."] 564 DOCUMENTS Act of Parliament [or legislative body], or any law in force for the time being; (h) or (h) When the originals consist of numerous documents which cannot conveniently be exam- ined in court and the fact to be proved is the gen- eral result of the whole collection: provided that that result is capable of being ascertained by cal- culation, (i) Subject to the provisions hereinafter contained any secondary evidence of a document is admis- sible, (j) [In cases (/) and (g), proof must, when made by copies of the record, be made by copies duly authenticated by the proper officer, and in the manner prescribed by statute, (k) In case (g) evidence may be given as to the general result of the documents by any person (h) [See chapter X; 3 Wigmore Ev., § 1651.] (i) Roberts v. Doxen, Peake, 116; Meyer v. Sefton, 2 Star. 276; [2 Wigmore Ev., § 1230]. The books, etc., should in such case be ready to be produced if required. Johnson v. Kershaw, 1 De G. & S. 264. (j) If a counterpart is known to exist, it is the safest course to produce or account for it. Munn v. Godbold, 3 Bing. 297; R. v. Castleton, 7 T. R. 236. (k) [The original text of the learned author in this para- graph read as follows: "In case (f) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit;" citing 42 & 43 Vict., c. 11, ss. 3, 5.] DOCUMENTS 565 who has examined them, and who is skilled in the examination of such documents.] Questions as to the existence of facts rendering secondary evidence of the contents of documents admissible are to be decided by the judge, (1) un- less in deciding such a question the judge would in effect decide the matter in issue, (m) ACCOUNTING FOR ORIGINAL. Arkansas. Instruments not forming the basis of the action, but merely proof of collateral matters, may be proved by parol. (Action against railroad company for injuries to passenger by falling into a hole on another's land. Cer- tified copy of a deed showing width of company's right-of- way admissible without showing original unobtainable). — St. Louis & S. F. Ry. Co. v. Caldwell, 93 Ark. 286, 124 S. W. 1034. California. Until the original is accounted for, the record of an instrument is inadmissible to prove its execution and contents.— Brown v. Griffith, 70 Cal. 14, 11 P. 500. The original instrument must be accounted for before secondary evidence of the contents is admissible. — Fresno Canal & Irr. Co. v. Dunbar, 80 Cal. 530, 22 P. 275. Kansas. A subpoena on a party for a document not in his possession or control will not let in secondary evidence of its contents. — Jobes v. Lows, 63 Kan. 886, 66 P. 627. Utah. A carbon copy of an instrument is a duplicate ori- ginal and admissible in evidence without accounting for other copies. — De Michele v. London & L. Fire Ins. Co., 40 Utah 312, 120 P. 846. (1) Stowe v. querner, L. R. 5 Exch. 155; [ante, art. 49]. (m) [Statutes providing for the admission of secondary evidence of divers documents, laws, records, etc., are treated under article X.] 566 DOCUMENTS ORIGINAL IN POSSESSION OF ADVERSE PARTY. Rules as to detention of document and notice to produce are treated in the next article. — [Ed. note.] "The reason for the excuse (for not producing the ori- ginal) is clear; if the opponent detains the document then it is not available for the proponent, and as the funda- mental notion of the general rule is that production is not required when it is not feasible, the rule here falls away and the non-production is excused."- — 2 Wigmore Ev., § 1199. Arizona. Where a letter written by defendant in a crim- inal prosecution to his wife is in her possession, she cannot be compelled to produce it and the contents may be estab- lished by secondary evidence. — De Leon v. Territory, 9 Ariz. 161, 80 P. 348. California. Where the adverse party has a duplicate copy of an alleged destroyed instrument sued on, he cannot ob- ject to secondary evidence of its contents, and other du- plicates need not be accounted for. — Nicholson v. Tarpey, 70 Cal. 608, 12 P. 778. A party to an action, when made a witness by the ad- verse party will be required to testify as to his possession or control of writings containing evidence deemed material, and the judge may order him to produce such writings. — Moorehouse v. Moorehouse, 136 Cal. 332, 68 P. 976. Nebraska. Where a document is traced to the hands of the adverse party who admits its loss, no further search need be shown to admit secondary evidence of its contents. — Barmby v. Plummer, 29 Neb. 64, 45 N. W. 277. New Mexico. Where an original document is in the pos- session of the adverse party, a copy thereof may be intro- duced in evidence. — Beall v. Territory, 1 N. M. 507. Muniments of title, prior to that immediately into the party having use for such at a trial, are presumptively in the possession of the persons to whom made, and such presumption of fact stands prima facie as a sufficient show- ing justifying the use of the record of such title papers, under Comp. Laws 1897, § 3965, allowing the use of the rec- ord where the original is not in the hands of the party wishing to use it. — Tagliaferri v. Grande, 16 N. M. 486, 120 P. 730. DOCUMENTS 567 Oregon. Proof that a letter was mailed to the adverse party and notice given him to produce lets in secondary evidence of its contents. — Sugar Pine Door & L. Co. v. Garrett, 28 Or. 168, 42 P. 129; State v. Hanscom, 28 Or. 427, 43 P. 167; Duggan v. City of Emporia, 58 Or. 86, 113 P. 436. Texas. When a written instrument is shown to be in the possession of the adverse party who declines to produce it after notice, secondary evidence of its contents is admis- sible.— Bunker v. State, (Tex. Cr. R.), 177 S. W. 108. Where a writing is in the possession of counsel for the adverse party, and is not produced on demand, secondary evidence as to the contents may be received. — Denman v. James, (Tex. Civ. App.), 180 S. W. 1157. Washington. Secondary evidence of the contents of a document in the possession of a defendant in a criminal prosecution is admissible, in the first instance. — State v. McCauley, 17 Wash. 88, 49 P. 221. When an original document is traced to the hands of the adverse party, secondary evidence of its contents is admissible after proper notice to produce and failure there- in.— Nunn v. Jordan, 31 Wash. 506, 72 P. 124; Keenan v. Lauritzen Malt Co., 57 Wash. 367, 106 P. 1122; Hanson v. Columbia & P. S. R. Co., 75 Wash. 342, 134 P. 1058. ORIGINAL IN HANDS OF STRANGER. California. A person in the employ of a telegraph com- pany, having charge of its messages, served with a sub- poena duces tecum to produce all messages from a num- ber of persons to many others between certain specified dates, cannot be compelled to do so. — Jaynes, ex parte, 70 Cal. 638, 12 P ; 117. Kansas. Secondary evidence of the contents of a docu- ment is admissible where the original is in possession of one who refuses to produce it because it may incriminate him.— State v. Gurnee, 14 Kan. 111. New Mexico. Where a document is presumed to be in the custody of another, secondary evidence of its contents is 568 DOCUMENTS admissible under § 3965, C. L. 1897.— Tagliaferri v. Grande, 16 N. M. 486, 120 P. 730. Washington. A demand to produce an instrument cannot be made of a witness not a party to the suit for the first time when the witness is on the stand.— Hull v. Seattle, Renton, etc., R. Co., 60 Wash. 162, 110 P. 804. ORIGINAL OUT OF JURISDICTION. The fact that a document is in the possession of a third person out of the state is sufficient to let in secondary evidence, though no effort has been made to secure the production of the instrument: Arkansas: Ritter v. State, 70 Ark. 472, 69 S. W. 262 (let- ters of remittance held outside state). California: Gordon v. Searing, 8 Cal. 49 (deed or grant traced to possession of party outside state); Zellerbach v. Allenberg, 99 Cal. 57, 33 P. 786 (letter beyond territory of state). South Dakota: Hagaman v. Gillis, 9 S. D. 61, 68 N. W. 192 (instrument last known to have been in possession of a third person in another state). Texas: Clifton v. Lilley, 12 Tex. 130 (one last having pos- session lived in another state) ; Veck v. Holt, 71 Tex. 715, 9 S. W. 743 (holder of original bill of sale living in an- other state, no demand necessary) ; Frost v. Wolf, 77 Tex. 455, 14 S. W. 440 (original deed, in accordance with prac- tice in Louisiana, being executed on notary's books, could not be produced as being a record of another state). The mere fact that the instrument is shown to be in the possession of a party then outside the state is not of itself sufficient to sustain parol proof of its contents, but some effort should be made to obtain the writing before parol proof of its contents is offered. — Lon- doner v. Stewart, 3 Colo. 47; Shaw v. Mason, 10 Kan. 184, 189. Arkansas. Secondary evidence of the contents of a doc- ument is admissible where it appears that the original is beyond the jurisdiction of a subpoena duces tecum and DOCUMENTS 569 the party relying upon it is not entitled to its possession. — Bozeman v. Browning, 31 Ark. 364; Ritter v. State, 70 Ark. 472, 69 S. W. 262. California. Where a document is out of the jurisdiction of the court in the possession of one not a party to the suit, secondary evidence is admissible to prove its con- tents. — Gordon v. Searing, 8 Cal. 49; Zellerbach v. Allen- berg, 99 Cal. 57, 33 P. 786. Under the statute a document beyond the jurisdiction of the court is considered as lost, and secondary evidence of its contents is admissible. — Gordon v. Searing, 8 Cal. 49; Zellerbach v. Allenberg, 99 Cal. 57, 33 P. 786. Where it appears that letters had been mailed by wit- ness to another in a foreign country, that witness had not seen them since, and that in the due course of mail he had received replies thereto, and he had preserved no copies, oral evidence of their contents is admissible. — Zellerbach v. Allenberg, 99 Cal. 57, 33 P. 786. Colorado. If books and papers necessary as evidence in one state be in possession of a person in another, sec- ondary evidence, without further showing, may be given to prove the contents of such papers, and notice to pro- duce them is unnecessary. — Owers v. Olathe Silver Min. Co., 6 Colo. App. 1, 39 P. 980. Kansas. The admission in evidence on the application of the plaintiff, of a record copy of a deed of conveyance, when it is admitted that the deed itself is in the posses- sion and under the control of the plaintiff, is error, al- though the plaintiff may at the same time be absent from the state and in New York, and have the deed in his pos- session at that place. — West v. Cameron, 39 Kan. 736, 18 P. 894. Nevada. Where the original document is out of the juris- diction of the court and beyond the power of the party to procure it, he may introduce secondary evidence of its contents. — Evans v. Lee, 11 Nev. 194. New Mexico. That the original document is in the pos- session of one who is without the jurisdiction of the court, 570 DOCUMENTS is not sufficient to let in secondary evidence of its con- tents.— Kirchner v. Laughlin, 6 N. M. 300, 28 P. 505. Oklahoma. Secondary evidence of the contents of a writ- ing is not admissible when it is in the possession of a person living in another state, unless first shown that the instrument is beyond the control of the person wishing to use it. — Pringey v. Guss, 16 Okl. 82, 86 P. 292. South Dakota. Where a document is out of the jurisdic- tion of the court in the possession of one not a party to the suit, secondary evidence is admissible to prove its contents.— Hagaman v. Gillis, 9 S. D. 61, 68 N. W. 192. Texas. Where it appears that a document is without the jurisdiction of the court, its contents may be shown by secondary evidence. — Smith v. Nat. Bank, 82 Tex. 368, 17 S. W. 779. Where a document is beyond the jurisdiction of the court in the possession of one not a party to the suit, sec- ondary evidence is admissible to prove its contents. — Mc- Bride v. Willis, 82 Tex. 141, 18 S. W. 205; Sayles v. Brad- ley, etc., Co., 92 Tex. 406, 49 S. W. 209; Missouri P. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88; Spaulding v. Smith, (Tex. Civ. App.), 169 S. W. 627. Where an original statement of a debtor to Bradstreet's was in another county, and tbe superintendent refused to attach it to his deposition, secondary evidence of its con- tents is admissible. — Sayles v. Bradley & M. Co., 92 Tex. 406, 49 S. W. 209. Refusal of railway agent to attach waybill to deposition taken in another state, justifies secondary proof of its contents. — Missouri, K. & T. R. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88. Where the original document is without the jurisdiction of the court, secondary evidence is admissible. — Spaulding v. Smith, (Tex. Civ. App.), 169 S. W. 627. Utah. Where a writing is shown to be in the custody of a party not within the state, secondary evidence of its contents is admissible without showing its loss or de- struction. — Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah 339, 47 P. 311. DOCUMENTS 571 Where a document is shown to be without the jurisdic- tion of the court, secondary evidence of its contents is ad- missible. — Johnson v. Union Pacific R. Co., 35 Utah 285, 100 P. 390. Washington. Where a document is out of the jurisdiction of the court in the possession of one not a party to the suit, secondary evidence is admissible to prove its con- tents.— Sayward v. Gardner, 5 Wash. 247, 31 P. 761, 33 P. 389. Wyoming. Proof that a document is beyond the jurisdic- tion of the court lets in secondary evidence of its con- tents.— Cornish v. Territory, 3 Wyo. 95, 3 P. 793. Where letter was never within jurisdiction of court, its contents may be shown by parol. — Cornish v. Territory, 3 Wyo. 95, 3 P. 793. DESTRUCTION OR LOSS, AND SEARCH. Arizona. Less proof of search for an unimportant docu- ment alleged to be lost or destroyed, but a bona fide and unsuccessful search in probable places must be shown. — Rush v. French, 1 Ariz. 99, 25 P. 816. Arkansas. After a long lapse of time the execution of an alleged lost deed may be shown by secondary evidence where the attesting witness is dead. — Trammell v. Thur- mond, 17 Ark. 263. California. It is not a matter of course to allow secondary evidence of the contents of an instrument in suit upon proof of its destruction. If the destruction was the result of an accident, or was without the agency or consent of the owner, such evidence is generally admissible. But if the destruction was voluntarily and deliberately made, by the owner, or with his assent, the admissibility of the evidence will depend upon the cause, or motive of the party in effecting or assenting to its destruction. — Bagley v. McMickle. 9 Cal. 430. A letter that is beyond the territory of the state is "lost," so as to admit secondary proof of its contents. — Zeller- bach v. Allenberg, 99 Cal. 57, 33 P. 786. 572 DOCUMENTS The loss or destruction of the original instrument must be shown before secondary evidence of the contents is ad- missible.— Dahler v. All Persons, 163 Cal. 160, 124 P. 995. Colorado. To show in general terms that a writing is lost without showing search or inquiry is not sufficient to let in secondary evidence of its contents. — Lyon v. Wash- burn, 3 Colo. 201. Where a witness testifies that he destroyed a writing and there is no intimation of fraud, he may testify as to its contents from having heard it read. — Breen v. Rich- ardson, 6 Colo. 605. The execution of a lost or destroyed instrument may be proved by other competent evidence. — Owers v. Olathe Silver Min. Co., 6 Colo. App. 1, 39 P. 980. Where the minutes of a convention are lost, a partial transcript containing everything that the minutes con- tained on the question in issue, is admissible in evidence. —Palmer v. Ruland, 28 Colo. 65, 62 P. 841. Idaho. Secondary evidence of the contents of an instru- ment is not admissible unless it appears that the original is lost or destroyed.— C. C. P. (1908), § 5998. A document required by law to be recorded may be proved by the record, where it appears that the original is lost.— Black Canyon Irr. Dist. v. Marple, 19 Ida. 176, 112 P. 766. Where an original document upon which proceedings were based is lost or destroyed, its contents may be estab- lished by secondary evidence. — Black Canyon Irr. Dist. v. Marple, 19 Ida. 176, 112 P. 766; Sims v. Milwaukee Land Co., 20 Ida. 513, 119 P. 37. Kansas. Public records are admissible to prove the con- tents of documents recorded therein where the originals cannot be produced by the party wishing to use the evi- dence. — Meskimen v. Day, 35 Kan. 46, 10 P. 14; Gildehaus v. Whiting, 39 Kan. 706, 18 P. 916; Rullman v. Barr, 54 Kan. 643, 39 P. 179. Where the documentary evidence is of such a nature as it would not be likely to have been preserved, slight proof DOCUMENTS 573 of loss is sufficient to let in secondary evidence. — Atchison, T. & S. F. Ry. Co. v. Palmore, 68 Kan. 545, 75 P. 509. Where a party testifies that a writing is not in existence, notice to produce it is useless and secondary evidence of its contents is admissible after tracing the writing to such party. — Bertenshaw v. Laney, 77 Kan. 497, 94 P. 805. Letter press copies of waybills tending to show the des- tination of the cars may be introduced in evidence when it appears that the originals are lost. — Barker v. Kansas City, M. & O. Ry. Co., 88 Kan. 767, 129 P. 1151. Montana. Proof of the contents of the rules of a mining district cannot be received until shown that the original is lost or destroyed. — Campbell v. Rankin, 2 Mont. 363. Nebraska. Before secondary evidence of the contents of a document is admissible a reasonable search for the ori- ginal must be shown. — Barmby v. Plummer, 29 Neb. 64, 45 N. W. 277. Oklahoma. A reasonable search must be made in the places in which a document would be likely to be found before secondary evidence of its contents can be received. —Richardson v. Fellner, 9 Okl. 513, 60 P. 270. South Dakota. The record of a sheriff's bond in the office of the register of deeds is admissible when the original cannot be found. — Connor v. Corson, 13 S. D. 550, 83 N. W. 588. Texas. Where the original ancient instrument is lost, a certified copy may be introduced upon the same proof that would have made the original admissible. — Holmes v. Coryell, 58 Tex. 687; Galveston, H. & S. A. Ry. Co. v. Stealey, 66 Tex. 468, 1 S. W. 186. That a party lost his case in an action to establish title to land, may be shown, in a subsequent controversy over the title, by secondary evidence where the original records are destroyed. — Martin v. Reed, (Tex. Civ. App.), 160 S. W. 1094. The evidence of a witness on the stand as to inability to produce the original deed is equivalent to the statutory 574 DOCUMENTS affidavit, and is sufficient to authorize the introduction of a certified copy. — Hill & Jahns v. Lofton, (Tex. Civ. App.), 165 S. W. 67. Where the defendant did not contend that he did not issue the contract, and it appearing that same was lost, parol evidence was proper to prove its contend. — San Antonio & A. P. Ry. Co. v. Grady, (Tex. Civ. App.), 171 S. W. 1019. Utah. Where the contents of a writing are not directly involved, parol evidence of its contents is admissible without showing its loss. — Johnson v. Union Pacific R. Co., 35 Utah 285, 100 P. 390. Diligence. It must appear that a reasonable effort has been made without success to procure the original document before secondary evidence of its contents may be given. Simply that it is out of the jurisdiction of the court is not suffi- cient. — Londoner v. Stewart, 3 Colo. 47; Kirchner v. Laughlin, 6 N. M. 300, 28 P. 505; Daly v. Bernstein, 6 N. M. 380, 28 P. 764; Barnes v. Lynch, 9 Okl. 156, 59 P. 995; Richardson v. Fellner, 9 Okl. 513, 60 P. 270; Wiseman v. Northern Pac. R. Co., 20 Or. 425, 26 P. 272; Sperry v. Wesco, 26 Or. 483, 38 P. 623. Arizona. Diligence to be exerted in searching for an al- leged lost instrument depends to some extent upon the nature of the instrument, less proof being required of an unimportant document, but bona fide and unsuccessful search in probable places must be shown. — Rush v. French, 1 Ariz. 99, 25 P. 816. Arkansas. Where it appears that a further search might produce an alleged lost instrument, secondary evidence of its contents is inadmissible. — Wilburn v. State, 60 Ark. 141, 29 S. W. 149. California. A document will be considered lost when it cannot be found after diligent search. Reasonable dili- gence in making the search requires exploration of all DOCUMENTS 575 possible places the instrument might be. — King v. Sam- uel, 7 Cal. App. 55, 93 P. 391. Colorado. To show in general terms that a writing is lost without showing search or inquiry is not sufficient to admit secondary evidence of the contents. — Lyon v. Washburn, 3 Colo. 201. Diligence to be exerted in searching for an alleged lost instrument depends to some extent upon the nature of the instrument, less proof being required of an unimportant document, but bona fide and unsuccessful search in prob- able places must be shown. — Wells v. Adams, 7 Colo. 26, 1. P. 698. Kansas. If a search for an alleged lost instrument is made by a third person such person must be called to testify as to the search. — Guthrie v. Merrill, 4 Kan. 188; Johnson v. Mathews, 5 Kan. 123; Douglas v. Wolf, 6 Kan. 91. Reasonable effort without success must appear to have been exercised to produce the original before secondary evidence may be given of the contents. That it is with- out the jurisdiction of the court is not sufficient. — Shaw v. Mason, 10 Kan. 184; Deitz v. Regnier, 27 Kan. 94. Proof that an alleged lost deed was traced to the regis- ter's office without proof of a search of that office was in- sufficient to let in secondary evidence of its contents. — Lee v. Bermingham, 30 Kan. 312, 1 P. 73. That witness inquired of the custodian of an alleged lost document and that the latter told him that it could not be found, will not let in secondary evidence of its contents. —Lee v. Bermingham, 30 Kan. 312, 1 P. 73. To admit secondary evidence of a deed alleged to have been lost, the party offering it must have shown that he had in good faith and with reasonable diligence made a search for the same, using such sources of information and means of discovery as were reasonably accessible to him. — Rullman v. Barr, 54 Kan. 643, 39 P. 179. Nebraska. A reasonable search for the original writing must be shown to admit secondary evidence of its contents, 576 DOCUMENTS but where it is traced to the hands of the adverse party who admits its loss, no further search need be shown. — Barmby v. Plummer, 29 Neb. 64, 45 N. W. 277. New Mexico. Secondary evidence of the contents of an alleged lost instrument is inadmissible until it appears that diligence has been exercised to find the original. — Kirch- ner v. Laughlin, 6 N. M. 300, 28 P. 505; Daly v. Bernstein, 6 N. M. 380, 28 P. 764. Oklahoma. Where a document is traced to the hands of the adverse party who admits its loss, no further search need be shown to admit secondary evidence of its contents. —Cochran v. Bank of Tuttle, 31 Okl. 171, 120 P. 652; Richardson v. Fellner, 9 Okl. 513, 60 P. 270. Oregon. The party alleging the loss of a writing should show that he has, in good faith, exhausted in a reasonable degree all sources of information and means of discovery which the nature of the case would naturally suggest to procure the original, before secondary evidence of the contents should be admitted. — Sperry v. Wesco, 26 Or. 483, 38 P. 623. The testimony of a witness that he believes the ori- ginal writing cannot be found, but that no effort has been made to find it is not sufficient to let in secondary evi- dence.— Jones v. Teller, 65 Or. 328, 133 P. 354. Utah. Where it appears that the party wishing to prove the contents of a deed has left the same with a person residing in the city where the trial is had, and has made no effort to produce it, secondary evidence of the con- tents is inadmissible. — Wilson v. Wright, 8 Utah 215, 30 P. 754. ORIGINAL NOT MOVABLE. Arkansas. Where the United States postal recusations prohibit taking the original record to court, one who has personal knowledge of facts recorded therein may testify thereto.— Josephs v. Briant, 115 Ark. 538, 172 S. W. 1002. Texas. Where a document of public nature would itself be evidence if produced, and which could not be removed without inconvenience to the public interests, its contents DOCUMENTS 577 may be proved by secondary evidence. — Smithers v. Law- rence, 100 Tex. 77, 93 S. W. 1064; Texas & P. Ry. Co. v. Graham & Price, (Tex. Civ. App.), 174 S. W. 297. ORIGINAL A PUBLIC DOCUMENT. California. Where the original document is in the custody of a public officer secondary evidence of its contents is admissible.— Dyer v. Hudson, 65 Cal. 372, 4 P. 235. Idaho. When the original instrument is in the custody of a public officer, secondary evidence of the contents is ad- missible.— C. C. P. (1908), § 5998. Texas. Where the document is of such a nature that its removal would inconvenience public interests, the contents may be proved by secondary evidence. — Smithers v. Law- rence, 100 Tex. 77, 93 S. W. 1064; Texas & P. Ry. Co. v. Graham & Price, (Tex. Civ. App.), 174 S. W. 297. Washington. Where a contract upon which an action was based was written on the back of a public document which could not be removed, secondary evidence of the contract was held admissible. — Sayward v. Gardner, 5 Wash. 247, 31 P. 761. ORIGINAL RECORDS OF INSTRUMENTS. California. The record of an instrument is evidence only under the same circumstances that a certified copy would be. The original must be accounted for before the record is admissible to prove the execution and contents. — Brown v. Griffith, 70 Cal. 14, 11 P. 500. Official county records of a release of mortgage, properly executed and acknowledged, may be received in evidence without accounting for the original. — Adams v. Hopkins, 144 Cal. 19, 77 P. 712. To admit the record of a deed in evidence the deed must have been properly indexed. — Central Pacific Ry. Co. v. Droge, 171 Cal. 32, 151 P. 663. Colorado. The record of a judgment or a transcript thereof is admissible in evidence to show the fact of its recovery. — Watson v. Hahn, 1 Colo. 385. 578 DOCUMENTS That a statute makes a certified copy evidence of mat- ters of record, does not disqualify the original as evidence. —McAllister v. People, 28 Colo. 156, 63 P. 308. That the statute makes certified copies of a record or document admissible in evidence does not exclude the original. — Grimes v. Greenblatt, 47 Colo. 495, 107 P. 1111; Empire Ranch & C. Co. v. Lanning, 49 Colo. 458, 113 P. 491; Knowles v. Martin, 20 Colo. 393, 38 P. 467. Idaho. Where the law requires the record of an order to be kept, such record, after the loss of the original docu- ment, is admissible in evidence to prove the contents of the original order. — Black Canyon Irr. Dist. v. Marple, 19 Ida. 176, 112 P. 766. Kansas. When the instrument is such that the law au- thorizes its record, and it is without the possession or con- trol of the party wishing to introduce it in evidence, the record thereof is admissible. — Meskimen v. Day, 35 Kan. 46, 10 P. 14; Rullman v. Barr, 54 Kan. 643, 39 P. 179. Under a statute making the record of a properly exe- cuted deed competent evidence, the record of a deed lack- ing the notary's seal is inadmissible. — Meskimen v. Day, 35 Kan. 46, 10 P. 14. The record or a duly certified copy thereof of a properly executed, acknowledged and recorded instrument is admis- sible in evidence without proof of the execution of the original, when it is unavailable. — Bernstein v. Smith, 10 Kan. 60; Williams v. Hall, 16 Kan. 23; Bergman v. Bullitt, 43 Kan. 709, 23 P. 938; Stratton v. Hawks, 43 Kan. 538, 23 P. 591. Under the provisions of a statute validating instruments recorded prior to its passage, and making the record there- of competent evidence when the original is shown to have been lost or beyond the party's control, the absence from such record of a certificate of acknowledgment to the in- strument does not render such record inadmissible. — Gilde- haus v. Whiting, 39 Kan. 706, 18 P. 916. A party desiring to use the record of any instrument properly recorded — i. e., eligible to record — is only required to show that the original is not in his possession or con- DOCUMENTS 579 trol, and this may sometimes be presumed from the exis- tence of other facts. — Sax v. Wilkerson, 6 Kan. App. 203, 51 P. 299. Under the statute the record of an instrument entitled to record over ten years old is admissible in evidence without accounting for the original. — Van Hall v. Rea, 85 Kan. 675, 118 P. 693. An instrument which has been recorded ten years is admissible under the statute although defectively acknowl- edged.— Masonic Bldg. Ass'n v. Gordon, 88 Kan. 266, 128 P. 394. Montana. Where the law requires a record of any instru- ment, the record itself is the best evidence of the facts stated in the instrument. — Flick v. Gold Hill & L. M. Min. Co., 8 Mont. 298, 20 P. 807. The provisions of the law making recorded instruments competent evidence without other proof of execution do not embrace instruments not required by law to be re- corded.— Flick v. Gold Hill & L. M. Min. Co., 8 Mont. 298, 20 P. 807. The statute making the record, or a certified copy thereof, competent evidence of the contents of documents required by law to be recorded, does not extend to outside or extrinsic facts, although in the record, which are not required by law to be recorded. — Flick v. Gold Hill & L. M. Min. Co., 8 Mont. 298, 20 P. 807. Deeds or conveyances are not required by law to be re- corded, hence the original must be accounted for before secondary evidence of the contents is admissible. — Man- hattan Malting Co. v. Swetland. 14 Mont. 269, 36 P. 84. Nebraska. The record of a duly executed, acknowledged and attested instrument, or a transcript thereof, is admis- sible in evidence when the original is unobtainable. — Bur- bank v. Ellis, 7 Neb. 156; First Nat. Bank v. Ridpath, 47 Neb. 96, 66 N. W. 37; Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485; Thams v. Sharp. 49 Neb. 237. 68 N. W. 474; Linton v. Cooper, 53 Neb. 400, 73 N. W. 731; McKenzie v. Beaumont, 70 Neb. 179, 97 N. W. 225. 580 DOCUMENTS Nevada. Instruments executed, acknowledged, attested and recorded according to law may be proved by the ori- ginal or a certified copy of the record without further proof of execution. — Reno Brewing Co. v. Packard, 31 Nev. 433, 103 P. 415. The record of a United States patent for lands is admis- sible in evidence. — Reno Brewing Co. v. Packard, 31 Nev. 433, 103 P. 415. New Mexico. The record of an instrument entitled to be recorded is admissible in evidence when the original is not in the hands or under control of the party desiring to use the same.— Tagliaferri v. Grande, 16 N. M. 486, 120 P. 730. The record of a deed recorded over thirty years is ad- missible in evidence although the deed was defectively acknowledged. — Union Land & G. Co. v. Arce, 21 N. M. 115, 152 P. 1143. Oklahoma. All that is necessary to authorize the admis- sion in evidence of the records of the register of deeds as to any instrument authorized by law to be recorded is to produce enough evidence to satisfy the trial court of the fact that the original is not in the possession or under the control of the party offering the record. (Records ad- mitted upon evidence merely by defendant that he did not have possession of the originals, no cross-examination be- ing made, and the court being evidently satisfied that the originals were not in his possession or under his control.) — Dyal v. Norton, (Old.), 150 P. 703. Oregon. The record of a conveyance, duly recorded, or a transcript thereof duly certified may be read in evidence without further proof of execution. — Stanley v. Smith, 15 Or. 505, 16 P. 174; Series v. Series, 35 Or. 289, 57 P. 634. The record of a deed is competent evidence under Hill's Code, § 3028.— Stanley v. Smith, 15 Or. 505, 16 P. 174. South Dakota. Under § 1213 Political Code, a book in which is recorded .the ordinances of a city is admissible in evidence to prove the provisions of an ordinance. — Whaley v. Vidal, 27 S. D. 627, 132 N. W. 242. DOCUMENTS 581 Texas. Instruments permitted to be recorded or required by law to be recorded, which have been or may be recorded after having been proved as provided by law, are admis- sible in evidence without first proving the execution. — Andrews v. Marshall, 26 Tex. 212; Ballard v. Perry, 48 Tex. 347; Hancock v. Tram Lumber Co., 65 Tex. 225; Thomp- son v. Johnson, 24 Tex. Civ. App. 246, 58 S. W. 1030; Logan's Heirs v. Logan, 31 Tex. Civ. App. 295, 72 S. W. 416. One of the objects of the recording acts is to perpet- uate the proof of the execution of the instrument. — New- som v. Langford, (Tex. Civ. App.), 174 S. W. 1036. The record of a conveyance takes the place of proof of its execution. — Hancock v. Tram Lumber Co., 65 Tex. 225; Denman v. James, (Tex. Civ. App.), 180 S. W. 1157. Washington. Gen. Stat., § 209, making certified copies of records of instruments prima facie evidence, does not pre- vent the original instrument from being offered in evi- dence.— Garneau v. Port Blakely Mill Co., 8 Wash. 467, 36 P. 463; Smith v. Veysey, 30 Wash. 18, 70 P. 94. CERTIFIED COPIES. [See Article 79.] GENERAL RESULTS OF NUMEROUS DOCUMENTS. Arizona. Secondary evidence is admissible of the result of an examination of many documents where the examina- tion cannot be conveniently made by the court. — Schu- macher v. Pina County, 7 Ariz. 269, 64 P. 490. California. Where the books of account of a partnership appeared to have been so improperly kept by defendant, that they disclosed little of the partnership affairs, and it was stipulated in an action for dissolution and accounting that experts should make new books from the old ones, the new books, so made were competent evidence. — Rob- erts v. Eldred, 73 Cal. -394, 15 P. 16. Where books of account and records are voluminous covering transactions of many years, a schedule thereof made by an expert is competent evidence. — San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 P. 410. 582 DOCUMENTS The general result of an examination of numerous books and accounts may be testified to by a witness who has ex- amined them for the purpose, when the same could not be examined by the court without great loss of time. — People v. Doyle, 122 Cal. 486, 55 P. 581. That the negative could only be proven by the intro- duction of voluminous records is sufficient to admit parol testimony of the custodian to the effect that no document such as in question appears among such records. — Pacific Paving Co. v. Gallett, 137 Cal. 174, 69 P. 985. Colorado. Where books, records, papers, and entries are voluminous, intricate, or of such a character as to render it difficult for the court or jury to arrive at a correct con- clusion concerning their contents, resort may be had to the aid of an expert bookkeeper to examine and explain the meaning of entries and the true state of the accounts, when the originals are in the court subject to inspection. —Brown v. First Nat. Bank, 49 Colo. 393, 113 P. 483; Le Master v. People. 54 Colo. 416, 131 P. 269. Idaho. Where the original documents consist of numer- ous accounts or other documents which cannot be exam- ined without great loss of time, and the evidence sought from them is only the general result of the whole, sec- ondary evidence of the contents may be received. — C. C P. (1908), § 5998. Kansas. Where book entries, vouchers, or accounts are voluminous or complicated, the testimony of a competent witness, who made an examination and summary thereof may be received. — Hames y. Goodlander, 73 Kan. 183, 84 P. 986; Bourquin v. Missouri Pac. Ry. Co., 8S Kan. 183, 127 P. 770. Where the evidence consists of a large number of docu- ments and book entries the substance may be testified to by one who is familiar with the documents and entries altho he may not have made the entries himself. — Darling v. Atchison, T. & S. F. Ry. Co., 76 Kan. 893, 93 P. 612. Oregon. Where books, papers and records are numerous, an expert who has examined them may testify to the re- DOCUMENTS 583 suit of his examination and investigation. — Salem Light & T. Co. v. Anson, 41 Or. 562, 69 P. 675. Texas. Where, as an excuse for the nonproduction of a document to be used as evidence, it is stated that the evi- dence required is voluminous and would take much time to find it, secondary evidence may be introduced. — Kolp v. Brazer, (Tex. Civ. App.), 161 S. W. 899. PRELIMINARY QUESTIONS. Arkansas. It is an abuse of discretion for a judge to admit secondary evidence of a document where the alleged cus- todian thereof testifies that he has been unable to find it, but by further search might find it. — Wilburn v. State, 60 Ark. 141, 29 S. W. 149. California. The sufficiency of the proof of loss or destruc- tion of the original document to let in secondary evidence of the contents, is for the trial judge to decide. — California Nat. Bank v. Weldon, 14 Cal. App. 765, 113 P. 334. Montana. Whether or not sufficient testimony has been heard to permit the introduction of secondary evidence of the contents of a written instrument rests in the sound discretion of the judge. — Kleinschmidt v. Dunphy, 1 Mont. 118. Nebraska. The sufficiency of the foundation for the ad- mission of secondary evidence of the contents of a writing is for the decision of the trial judge. — Bishop v. Lincoln B. B. Club, 98 Neb. 558, 153 N. W. 5S6. Texas. It is for the court to determine whether the pre- liminary testimony is sufficient to authorize the admission of secondary evidence of its contents. — Thompson v. John- son, 24 Tex. Civ. App. 246, 58 S. W. 1030. Utah. The sufficiency of the proof of loss or destruction of the original document to let in secondary evidence of its contents, is for the trial judge to determine. — Walker Bros. v. Skliris, 34 Utah 353, 9S P. 114. 584 DOCUMENTS Article 72.* rules as to notice to produce. Secondary evidence of the contents of the docu- ments referred to in article 71 (a), may not be given unless the party proposing to give such sec- ondary evidence has, if the original is in the possession or under the control of the adverse party, given him such no- tice as the Court regards as reasonably sufficient to enable it to be procured ; (a) or has, if the original is in the possession of a stranger to the action, served him with a subpoena duces tecum requiring its production ; (b) if a stranger so served does not produce the document, and has no lawful justification for re- fusing or omitting to do so, his omission does not entitle the party who served him with the sub- poena to give secondary evidence of the contents of the document, (c) Such notice is not required in order to render secondary evidence admissible in any of the fol- lowing cases — (a) Dwyer v. Collins, 7 Ex. 648; [2 Wigmore Ev., § 1202.] (b) Newton v. Chaplin, 10 C. B. 56-69; [2 Wigmore Ev., §§ 1211-1213.] (c) R. v. Llanfaethly, 2 E. & B. 940. [This case seems to have been obiter, Earl, J., distinctly saying that the notice to produce had not been served upon the right person. How- ever this may be, we think that in this country the court would either compel the witness to produce (he not being justified in withholding it), or allow secondary evidence. Bull v. Loveland, 10 Pick. (Mass.) 14.] ♦See note at end of article. DOCUMENTS 585 (1) When the document to be proved is itself a notice; (2) When the action is founded upon the as- sumption that the document is in the possession or power of the adverse party and requires its production; (d) (3) When it appears or is proved that the ad- verse party has obtained possession of the ori- ginal from a person subpoenaed to produce it; (e) (4) When the adverse party or his agent has the original in court, (f) NOTICE TO PRODUCE. Arkansas. Proof of evasion of service of notice to pro- duce a document, will dispense with actual service of the notice. — Bright v. Pennywit, 21 Ark. 130. Oklahoma. Where a party is properly notified to produce a document shown to be in his possession and fails to do so, secondary evidence of its contents is admissible. — Harloe v. Lambie, 132 Cal. 133, 64 P. 88. Where a complaint alleges a contract by correspond- ence part of which is alleged to be in defendant's posses- sion and that plaintiff can only state the terms generally because of having no copy, there is sufficient notice to produce and in default, secondary evidence is admissible. —Atchison, T. & S. F. Ry. Co. v. Kinkaid, 30 Okl. 699, 120 P. 963. Oregon. After proof that a letter was mailed to the ad- verse party and that he has been properly notified to pro- (d)) Haw v. Hall, 14 Ea. 247. In an action on a bond, no notice to produce the bond is required. See other illustra- tions in 2 Ph. Ev. 373; T. E. s. 422; [2 Wigmore Ev., § 1205.] (e) Leeds v. Cook, 4 Esp. 256. (f) Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v. Collins, 7 Ex. 639; [Brandt v. Klein, 17 Johns. (N. Y.) 335; Rhoades v. Selin, 4 Wash. C. Ct. 718; Dana v. Boyd, 2 J. J. Marsh, (Ky.) 587; Brown v. Isbell. 11 Ala. 1009.] 586 DOCUMENTS duce the same, secondary evidence of its contents is ad- missible upon his failure to produce it. — Sugar Pine Door & L. Co. v. Garrett, 28 Or. 168, 42 P. 129. Where a writing is in the possession of the adverse party notice to produce and reasonable time is necessary before secondary evidence of its contents is admissible. —State v. Hanscom, 28 Or. 427, 43 P. 167; Duggan v. City of Emporia, 58 Or. 86, 113 P. 436. Texas. Where the original is shown to be in the hands of the adverse party who refuses to produce it on notice, secondary evidence may be received of its contents. — King v. Cisco Compress Co., 35 Tex. Civ. App. 653, 81 S. W. 114; Bunker v. State, (Tex. Cr. R.), 177 S. W. 108. Utah. When a writing is traced into the hands of a party not within the state, secondary evidence of its contents may be given without notice to produce.- — Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah 339, 47 P. 311. The contents of letters may be proved by the party who wrote them after notice to produce has been disregarded. —State v. Freshwater, 30 Utah 442, 85 P. 447. The class of a railway ticket upon which a passenger was riding may be shown by parol evidence after surren- der of the ticket to the conductor and default of the rail- way company to produce the original after proper notice. — McCollum v. Southern Pac. Ry. Co., 31 Utah 494, 88 P. 663; Fitzgerald v. Southern Pac. Ry. Co., 31 Utah 510, 88 P. 669. Washington. Where the original writing is traced to the adverse party, secondary evidence of its contents is ad- missible after proper notice to produce and failure therein. — Nunn v. Jordan. 31 Wash. 506, 72 P. 124; Keenan v. Lau- ritzen Malt Co., 57 Wash. 367, 106 P. 1122; Hanson v. Columbia & P. S. R. Co., 75 Wash. 342, 134 P. 1058. WHEN NOTICE TO PRODUCE NOT REQUIRED. Where a document is traced to the hands of the adverse party who admits its loss, secondary evidence of its con- tents is admissible, without giving notice to produce. — DOCUMENTS 587 Barmby v. Plummer, 29 Neb. 64, 45 N. W. 277; Richardson v. Fellner, 9 Okl. 513, 60 P. 270; Cochran v. Bank of Tut- tle, 31 Okl. 171, 120 P. 652. Arizona. Where a letter written to his wife by a defend- ant in a criminal prosecution is in her possession she can- not be compelled to produce the same for use as evidence, and the contents may be established by secondary evi- dence.— De Leon v. Territory, 9 Ariz. 161, 80 P. 348. California. Where the adverse party has a duplicate of an alleged destroyed instrument sued on, no notice to pro- duce is necessary. — Nicholson v. Tarpey, 70 Cal. 608, 12 P. 778. Colorado. Notice to produce a writing is unnecessary where it appears that it is beyond the jurisdiction of the court.— Owers v. Olathe Silver Min. Co., 6 Colo. App. 1, 39 P. 980. Kansas. Where a party testifies that the writing is not in existence notice to produce is unnecessary. — Brentshaw v. Laney, 77 Kan. 497, 94 P. 805. Nebraska. Where a party to an action desires to give evidence aliunde of the existence or contents of a private writing which has been delivered to the adverse party, the better practice is to serve a timely notice upon such party or his attorney to produce the writing at the trial; but such notice may be dispensed with upon proof that such party has said that such writing has been lost or destroyed. —Barmby v. Plummer, 29 Neb. 64, 45 N. W. 277. Oklahoma. Where the original document is traced to the hands of the adverse party, notice to produce the same is unnecessary.— Cochran v. Bank of Tuttle, 31 Okl. 171, 120 P. 652. Where a petition alleges a contract, consisting of letters and telegrams, between plaintiff and defendant, and that one of the writings is a telegram sent by plaintiff, and now in the possession of defendant, and that plaintiff has no copy of it, and cannot state definitely its contents, the averments of the petition were sufficient notice to defend- ant, in possession of the writing, to permit secondary evi- 588 DOCUMENTS dence of its contents. — Atchison, T. & S. F. Ry. Co. v. Kinkaid, 30 Okl. 699, 120 P. 963. Oregon. A notice to produce a document is unnecessary where it has been wrongfully obtained or withheld by the adverse party. — Code, § 712; Duggan v. City of Emporia, 58 Or. 86, 113 P. 436. Texas. Where the instrument which a party desires to use as evidence has been wrongfully obtained by the ad- verse party, secondary evidence may be introduced to prove its contents without notice to produce. — Prieto v. Hunt, (Tex. Civ. App.), 167 S. W. 4. Utah. Where a writing is traced into the hands of a party without the state no notice to produce is neecssary to admit secondary evidence of its contents. — Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah 339, 47 P. 311. In an action against a railroad for injuries caused by the derailment of a train, a letter to a section foreman defin- ing the speed limit over the track, may be testified to by parol without producing the letter or notice to produce. —Johnson v. Union Pacific R. Co., 35 Utah 285, 100 P. 390. In Possession of Accused Defendant. Arizona. Where a document is in the possession of the wife of a defendant in a criminal prosecution, no notice to produce is necessary to let in secondary evidence of its contents. — De Leon v. Territory, 9 Ariz. 161, 80 P. 348. Kansas. That a document was made in duplicate and one copy lost, the other in the possession of the defendant in a criminal prosecution, is sufficient to warrant the intro- duction of secondary evidence of its contents, as the court has no power to compel the accused to produce evidence against himself. — State v. Gurnee, 14 Kan. 111. Oklahoma. Where a writing is in the possession of a defendant in a criminal prosecution, secondary evidence of its contents is admissible. — Grayson v. State, (Okl. Cr.), 154 P. 334. Oregon. A defendant in a criminal prosecution cannot be compelled to produce a writing to be used as evidence against him and no notice to produce such a document is DOCUMENTS 589 necessary to let in secondary evidence. — State v. Hanscom, 28 Or. 427, 43 P. 167. Texas. A defendant in a criminal prosecution cannot be compelled to produce a written instrument to be used as evidence against him. — Meredith v. State, (Tex. Cr. R.), 164 S. W. 1018. Washington. A defendant in a criminal prosecution can- not be compelled to produce a writing to be used as evi- dence against him, and no notice to produce such a doc- ument is necessary to let in secondary evidence of its contents.— State v. McCauley, 17 Wash. 88, 49 P. 221. When Writing Itself Is Notice. Oregon. A notice to produce a writing is not necessery where it itself is notice.— Code, § 712; Duggan v. City of Emporia, 58 Or. 86, 113 P. 436. Action Presuming Possession of Adverse Party. Oklahoma. Where the p#per is of such a nature that the party must know that it is indispensable to his adversary, no notice to produce other than such as is given by the pleadings is necessary, but notice must be taken and the document produced at the trial. — Atchison, T. & S. F. Ry. Co. v. Kinkaid, 30 Okl. 699, 120 P. 963. Oregon. No notice need be given to produce a document which is the subject of an indictment in order to admit secondary evidence of its contents. — State v. Hanscom, 28 Or. 427, 43 P. 167. Texas. Where the adverse party must necessarily know that he is charged with possession of the writing, notice to produce the instrument is unnecessary. — Reliance Lum- ber Co. v. Western Union Tel. Co., 58 Tex. 394. NOTE xxiz. (To Article 72.) For these rules in greater detail, see [2 Wigmore Ev., § 1202 et seq.], 1 Ph. Ev. 452-453, and 2 Ph. Ev. 272-289: T. E. ss. 419-426; R. N. P. 8 & 9. The principle of all the rules is fully explained in the cases cited in the footnotes, more particularly in Dwyer v. 590 DOCUMENTS Collins, 7 Ex. 639. In that case it is held that the object of notice to produce is "to enable the party to have the doc- ument in court, and if he does not, to enable his opponent to give parol evidence * * * to exclude the argument that the opponent has not taken all reasonable means to procure the original, which he must do before he can be per- mitted to make use of secondary evidence" (pp. 647-648). DOCUMENTS 591 CHAPTER X. PROOF OF PUBLIC DOCUMENTS. Article 73. proof of public documents. When a statement made in any public docu- ment, register, or record, judicial or otherwise, or in any pleading or deposition kept therewith is in issue, or is relevant to the issue in any pro- ceeding, the fact that that statement is contained in that document, may be proved in any of the ways mentioned in this chapter, (a) PROOF OF JUDICIAL RECORDS. California. An alleged opinion by the trial judge in a case, unsigned or unauthenticated is inadmissible in evidence in connection with the judgment roll of the case. — Wixson v. Devine, 67 Cal. 341, 7 P. 776. A judgment must be proved by the record of its entry, or, after proof of its destruction, by parol. — Von Vetsera, ex parte, 7 Cal. App. 136, 93 P. 1036. Colorado. The record of a judgment or a transcript there- of is the best evidence to show the fact of its recovery and the amount. — Watson v. Hahn, 1 Colo. 385. A clerk's statements as to the amount of costs in case are the best evidence of the amount thereof, and a certi- fied copy thereof is admissible in evidence. — Thalheimer v. Crow, 13 Colo. 397, 22 P. 779. A properly authenticated record of proceedings in a jus- tice court is admissible in evidence to establish the judg- ment.— Baur v. Beall, 14 Colo. 383, 23 P. 345. The record of a judgment containing a recital that money was deposited with the clerk of court to be applied (b) See articles 36 and 90. 592 DOCUMENTS in satisfaction thereof, is admissible in evidence in an action against the clerk for failure to turn over to his suc- cessor moneys deposited with him. — McCune v. People, 8 Colo. App. 430, 46 P. 1083. The record or a certified copy thereof of a decree is ad- missible to prove the existence or rendition of a judg- ment, but when offered to prove an estoppel or the adju- dication of a certain fact it must be accompanied by the judgment roll.— Bovee v. Boyle, 25 Colo. App. 165, 136 P. 467; King v. Foster, 26 Colo. App. 120, 140 P. 930; Empire Ranch & C. Co. v. Lumelius, 24 Colo. App. 49, 131 P. 796; Ross v. Newsom, 25 Colo. App. 393, 138 P. 1015; Empire Ranch & C. Co. v. Weldon, 26 Colo. App. Ill, 141 P. 138. For the purpose of proving the existence and contents of a judgment, or the mere rendition thereof, the record en- try, or an authenticated copy, is sufficient. — Terry v. Gib- son, 23 Colo. App. 273, 12S P. 1127. Kansas. Certified copies of the acts and proceedings had before a probate judge while in fact acting as a subordi- nate officer of the district court in other than probate matters cannot be certified to by his successor as probate judge. The legal custodian must make the certificate. — Bowersock v. Adams, 55 Kan. 681, 41 P. 971. The records of the probate court are admissible in evi- dence on appeal to the district court, to show the facts relative to a claim filed in the probate court. — Jordan v. Bevans, 10 Kan. App. 428, 61 P. 985. A certificate of a probate judge that no administrator had ever been appointed for a decedent in the county, or that there was no administration on his behalf, is not competent evidence under par. 4820, Gen. Stat. 1901. — Chicago, R. I. & P. Ry. Co. v. Vance, 64 Kan. 686, 68 P. 606. A certified copy of the appointment of a guardian in an- other county is admissible to prove the fact, but it may also be proved by other evidence. — Black v. Morris, 90 Kan 64, .132 P. 1185. Montana. A conviction must be proved by the record of the judgment.— State v. Howard, 30 Mont. 518, 77 P. 50. DOCUMENTS 593 Oklahoma. A certified copy of a judgment entry is ad- missible to prove the rendition and contents of the judg- ment, but when it is relied upon as an estoppel, or to es- tablish any particular fact, a complete and duly authenti- cated copy of the entire proceedings is necessary. — Oliver v. Gimbel, 38 Okl. 50, 132 P. 144. Oregon. The record of the cause in which perjury is al- leged to have been committed must be introduced in evi- dence.— State v. Kalyton, 29 Or. 375, 45 P. 756. Texas. A record required by law to be kept is the best evidence, although certified copies are made admissible by statute; the records of district courts, not certified copies thereof, are the best evidence. — Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957. A copy of an indictment having no certificate is inad- missible without proof that it is an examined copy. — John- son v. State, (Tex. Cr. R.), 149 S. W. 165. An original supersedeas bond filed in another county is admissible in evidence without proof of execution, where the execution is not denied by affidavit. — Garrett v. Gris- ham, (Tex. Civ. App.), 156 S. W. 505. To prove an order of court it must be first shown that there was such an order and that the same was entered on the minutes. Proof cannot be made extraneous of the record. — Tourtelot v. Booker, (Tex. Civ. App.), 160 S. W. 293. Where it is necessary to prove that a prosecution had been begun, and a warrant issued, the complaint itself and warrant, or properly certified copies are essential. The contents cannot be proved by parol. — Baskins v. State, (Tex. Cr. R.), 171 S. W. 723. Washington. The clerk of the court being the proper cus- todian of the record, his certificate to a certified copy of the record of a former judgment is sufficient, without the judge's certificate that he is such custodian. — Bignold v. Carr. 21 Wash. 413, 64 P. 519. A transcript of a justice's docket showing the proceed- ings complained of in a suit for malicious prosecution, is 594 DOCUMENTS competent evidence. — Kerstetter v. Thomas, 36 Wash. 620, 79 P. 290. Wyoming. In the absence from the certificate to an al- leged certified copy of the record of a case tried before a justice of the peace, of a showing that the person signing it was a justice of the peace at the time of signing same, or that he was the custodian of the record, such alleged certified copy is inadmissible in evidence. — Stamper v. Gay, 3 Wyo. 322, 23 P. 69. Article 74. production of document itself. The contents of any public document whatever may be proved by producing the document itself for inspection from proper custody, and identify- ing it as being what it professes to be. PRODUCTION OF DOCUMENT ITSELF. The original files in another suit pending in a different court are admissible to show the proceedings. — Foster v. State, 8 Okl. Cr. R. 139, 126 P. 835; Garrett v. Grisham, (Tex. Civ. App.), 156 S. W. 505; Baskins v. State, (Tex. Cr. R.), 171 S. W. 723. Arkansas. The statute making certified copies admissible in evidence does not exclude the original document as such.— Winn v. Whitehouse, 96 Ark. 42, 131 S. W. 70. A judgment of a justice of the peace of a sister state must be proved by the production of the original minutes, or by oath of a witness who has compared the copy pro- duced in evidence with the original. — Blackwell v. Glass, 43 Ark. 209; Albright v. Mickey, (Ark.), 137 S. W. 568. To warrant the introduction in evidence of an original complaint in another suit, it must be accompanied by a showing of permission to withdraw the pleading from the files.— Missouri & N. A. R. R. Co. v. Johnson, (Ark.), 171 S. W. 478. DOCUMENTS 595 California. A statute which makes duplicate assessment rolls evidence, applies to the originals after the enact- ment of a subsequent statute dispenses with the keeping of duplicate rolls. — Lake County v. Sulphur Bank Q. M. Co., 66 Cal. 17, 4 P. 876. The statute making copies competent evidence does not exclude the introduction of the original.— People v. Allen, 113 Cal. 264, 45 P. 327. An original judgment roll of a case tried in another county is competent evidence without proof of authority for its removal. Whether or not removed without author- ity is of no consequence to a defendant in a criminal prose- cution.— People v. Allen, 113 Cal. 264, 45 P. 327. Colorado. The official records of a city containing the ordinances and minutes of the proceedings of the city council of such city, properly attested and identified, are competent evidence to show the passage of an ordinance. —City of Greeley v. Hamman, 17 Colo. 30, 28 P. 460. If a county court permits one of its record books to be taken into another court, the objection that the original and not a certified copy is produced is untenable. — Mc- Allister v. People, 28 Colo. 156, 63 P. 308. Statute making certified copies competent evidence does not disqualify the original. — McAllister v. People, 28 Colo. 156, 63 P. 308; Grimes v. Greenblatt, 47 Colo. 495, 107 P. 1111; Empire Ranch & C. Co. v. Lanning, 49 Colo. 458, 113 P. 491. The original record of a matter heard before a justice of the peace is admissible in evidence. — Grimes v. Green- blatt, 47 Colo. 495, 107 P. 1111. To prove the mere rendition of a judgment, the decree itself is admissible, but when offered to prove an estoppel it must be accompanied by the judgment roll. — Bovee v. Boyle, 25 Colo. App. 165, 136 P. 467; King v. Foster, 26 Colo. App. 120, 140 P. 930; Empire Ranch & C. Co. v. Lumelius, 24 Colo. App. 49, 131 P. 796; Empire Ranch & C. Co. v. Weldon, 26 Colo. App. Ill, 141 P. 138. 596 DOCUMENTS Idaho. Original pleadings, records and files of inferior courts are admissible as evidence and the proof is not re- stricted to copies. — Keenan v. Washington Liquor Co., 8 Ida. 383, 69 P. 112. Kansas. Original statements made for taxation purposes are required by law to be kept, and are competent evi- dence. — Bowersock v. Adams, 55 Kan. 681, 41 P. 971. To show the amount of taxes levied, a tax roll prepared by the county clerk and placed in the hands of the county treasurer for collection, is competent evidence. — Smith v. Scully, 66 Kan. 139, 71 P. 249. A volume of public records is not discredited as evidence because it contains an original paper instead of a copy thereof.— Scott v. Williams, 74 Kan. 448, 87 P. 550. Montana. The statute making certified copies admissible in evidence does not exclude the original document. — McKinstry v. Clark, 4 Mont. 370, 1 P. 759; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 P. 153. Nevada. Where the original document is produced from the proper custodian it need not be certified by him before being admissible in evidence, simply because copies are required by statute to be certified. — State v. Nevada Cent. R. Co., 26 Nev. 357, 68 P. 294. North Dakota. Statutory provisions making certified copies admissible in evidence do not exclude the introduc- tion of the original document. — Harmening v. Howland, 25 N. D. 38, 141 N. W. 131. Texas. The statute making a certified copy admissible in evidence does not exclude the introduction of the original instrument. — Garrett v. Grisham, (Tex. Civ. App.), 156 S. W. 505; Kimmons v. Abraham, (Tex. Civ. App.), 158 S. W. 256. Utah. Exemplifications of the record of a United States patent, may be obtained for use as evidence, and it is error to admit the original.— Bullion-B. & C. Min. Co. v. Eureka Hill Min. Co., 5 Utah 3, 11 P. 515. Washington. The statute making certified copies com- petent evidence does not exclude the original document. DOCUMENTS 597 — Garneau v. Port Blakeley Mill Co., 8 Wash. 467, 36 P. 463; Smith v. Veysey, 30 Wash. 18, 70 P. 94. The fact that an original paper was found in the Gen- eral Land Office instead of the local office where it prop- erly belonged, does not discredit it as evidence. — Sylvester v. State, 46 Wash. 585, 91 P. 15. The recording of a document not required by law to be recorded does not exclude the original as evidence. — Rich- ards v. Bussell, 70 Wash. 554, 127 P. 198. Article 75.* examined copies. The contents of any public document whatever may in all cases be proved by an examined copy. An examined copy is a copy proved by oral evidence to have been examined with the original and to correspond therewith. The examination may be made either by one person reading both the original and the copy, or by two persons, one reading the original and the other the copy, and it is not necessary (except in peerage cases (a) ), that each should alternately read both, (b) EXAMINED COPIES. "Every copy, except the sort mentioned post, § 1280, par. 2 (where the witness to the accuracy of the copy is not himself the transcriber, but testifies from recollection of contents of original), is in strictness an 'examined' copy, in the sense that the original and the copy have been ex- amined or compared together by the witness, either in (a) Slane Peerage Case, 5 C. & F. 42. (b) 2 Ph. Ev. 200, 231; T. E. ss. 1379, 1389; R. N. P. 113; [2 Wigmore Ev., § 1273.] •See note at end of article. 598 DOCUMENTS his own act of transcription or by taking some one else's transcription and comparing it with the original, ante, § 1265. But the term 'examined copy' has by tradition come to be associated with a copy made by a private per- son not the official custodian of the instrument. Thus the terms 'examined' or 'sworn' are used for copies sworn to upon the stand as correct, in distinction from 'certified' or 'attested' or 'office' copies, i. e., copies made in the public office by the official custodian, where the document is an official one." — 2 Wigmore Ev., § 1273. California. A copy of an alleged lost document, shown to be a correct copy by a witness who compared it with the original is admissible in evidence. — Dyer v. Hudson, 65 Cal. 372, 4 P. 235. New Jersey. The third kind of authenticated copy (be- sides "exemplified" and "office" copies) is an examined or sworn copy, which is proved by producing a witness who has compared the copy with the original record, word for word, or who has examined the copy while another person read the original. These are the various methods of prov- ing judicial records by a copy. — West Jersey Traction Co. v. Board of Public Works, 57 N. J. L. 313, 30 Atl. 581. New York. "The copy answer of the plaintiff Pearl Kel- logg to a bill in chancery, filed against him by the de- fendant, was rightfully excluded as evidence. As a copy of the answer on file it was to be proved as other trans- cripts, that is, by a witness who had compared the copy line for line with the original, or who had examined the copy while another person read the original. Had the trial been in the same court, and in the same cause, the office copy of the answer served by the solicitor of the plaintiff would have been competent evidence. " — Kellogg v. Kellogg, 6 Barb. 116, 130. Oklahoma. A witness cannot testify that a paper purport- ing to be a copy of an alleged lost document is a true copy thereof, unless such testimony is supported by the evidence of the person who made the alleged copy. — Kasenberg v. Hartshorn, 30 Okl. 417, 120 P. 956. DOCUMENTS 599 Texas. A judgment of a court of a sister state may be proved by a witness who has compared the copy offered in evidence with the original on file in such court. — Har- vey v. Cummings, 68 Tex. 599, 5 S. W. 513; Tourtelot v. Booker, (Tex. Civ. App.), 160 S. W. 293. Where a document of public nature would itself be evi- dence if produced, and which could not be removed with- out inconvenience to the public interests, its contents may be proved by an examined copy verified by some person. — Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064; Texas & P. Ry. Co. v. Graham & Price, (Tex. Civ. App.), 174 S. W. 297. It being the duty of the Commissioner of the General Land Office to keep his records open for the inspection of the public, it is to be presumed that a record pointed out by him as the record of the classification of lands in cer- tain counties is the record he declares it to be, and copies of such records are admissible in evidence when sup- ported by the testimony of a witness that he made and examined them from the books pointed out by the com- missioner as being such records. — Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064. A deed recorded in another state may be proved by an examined copy.— Frost v. Wolf, 77 Tex. 455, 14 S. W. 440. As a circumstance tending to show the execution and contents of an alleged lost deed, examined copies of the record of such deed recorded in another state are admis- sible.— Rice Institute v. Freeman, (Tex. Civ. App.), 145 S. W. 688. If ;i law requires the keeping of a record, and the gen- uineness thereof is proved, an examined copy is admissible in evidence. — Guerra v. San Antonio Sewer Pipe Co., — (Tex. Civ. App.), 163 S. W. 669. NOTE XXX. (To Article 75.) Mr. Phillips (ii. 196) says, that upon a plea of nul tiel record, the original record must be produced if it is in the same court. 600 DOCUMENTS Mr. Taylor (s. 1379) says, that upon prosecutions for per- jury assigned upon any judicial document the original must be produced. The authorities given seem to me hardly to bear out either of these statements. They show that the production of the original in such cases is the usual course, but not, I think, that it is necessary. The case of Lady Dartmouth v. Roberts, 16 Ea. 334, is too wide for the propo- sition for which it is cited. The matter, however, is of little practical importance. Article 76. [general federal or state records.] [Copies of books, records, papers, or docu- uments in any of the executive departments of public offices of the Federal government, authen- ticated under the seals of such departments or offices, respectively, and certified by the proper officers thereof shall be admitted in evidence equally with the originals thereof, (a) Statutes in every jurisdiction have been passed attempting to regulate and admit in evidence certified copies of public documents in state of- fices.] (b) GENERAL FEDERAL OR STATE RECORDS. Arizona. Where the statute makes certain transcripts competent evidence, it is error to exclude a proper trans- cript accompanied by other authenticated papers explana- tory of the issues involved which come from the proper governmental department of the United States. — United States v. Drachman, 5 Ariz. 13, 43 P. 222. a [Rev. Stat. U. S. §§ 882-898; 3 Wigmore Ev., § 1680, p. 2134.] b [See Wigmore Ev., § 1680.] DOCUMENTS 601 California. A copy of a map filed in the office of the reg- ister of the land office, certified to by him is admissible in evidence.— Goodwin v. McCabe, 75 Cal. 584, 17 P. 705. The result of the United States census may be shown by the certified copy of the superintendent of the census. —People v. Williams, 64 Cal. 87, 29 P. 939. A properly certified copy of the record of a patent is admissible in evidence. — Preston v. Hirsch, 5 Cal. App. 485, 90 P. 965. Kansas. A certified copy of a paper deposited in the land office may be received in evidence in same manner and with like effect as original. — Stinson v. Geer, 42 Kan. 520, 22 P. 586. Montana. A copy of a declaratory statement, certified by the receiver of the land office, without a seal or verification under oath,, is properly excluded under C. C. P. 1872, § 542.— Chambers v. Jones, 17 Mont. 156, 42 P. 758. A copy of a paper certified to by one as "acting commis- sioner" of the land office, otherwise properly authenticated, is sufficient. — Murray v. Polglase, 17 Mont. 455, 43 P. 505. Texas. Certified copies of the entries in the books of the internal revenue collector are admissible in evidence to show the issuance of a license to sell intoxicating liquor. — Columbo v. State, (Tex. Cr. R.), 145 S. W. 910. A letter which was received by the Land Commissioner in pursuit of his official duties is properly a part of his records, and a certified copy thereof is admissible in evidence. — Robertson v. Brothers, (Tex. Civ. App.), 139 S. W. 657; Robertson v. Talmadge, (Tex. Civ. App.), 174 S. W. 627. A certified copy of the findings, opinion, argument, and judgment of the Interstate Commerce Commission is ad- missible in evidence. — Pecos & N. T. Ry. Co. v. Porter, (Tex. Civ. App.), 156 S. W. 267. The facts recited in an ex parte affidavit filed in the Land Office, made for the purpose of securing the issuance of a duplicate land certificate cannot be shown by a cer- 602 DOCUMENTS tified copy.— Magee v. Paul, (Tex. Civ. App.), 159 S. W. 325. Where the original document is properly archived in the county clerk's office, or in the General Land Office, a cer- tified copy is admissible. — Sullivan v. Fant, (Tex. Civ. App.), 160 S. W. 612; Robertson v. Talmadge, (Tex. Civ. App.), 174 S. W. 627. Washington. Where a contract upon which the action was based was written on the back of a document required to be filed in the General Land Office and whence it could not be removed, a certified copy of the contract made by the custodian of such document was admissible in evi- dence.— Sayward v. Gardner, 5 Wash. 247, 31 P. 761, 33 P. 389. The fact that an original paper was found in the General Land Office instead of the local office where it properly be- longed, does not discredit it as evidence, and a duly cer- tified copy of such instrument is admissible in evidence. —Sylvester v. State, 46 Wash. 585, 91 P. 15. A certified copy of a marriage license is admissible to show age, it being the duty of the officer to determine and record such fact. — Armstrong v. Modern Woodmen of America, (Wash.), 160 P. 946. Article 77.* exemplifications. An exemplification is a copy of a record set out either under the Great Seal or under the Seal of a Court. A copy made by an officer of the Court, bound by law to make it, is equivalent to an exemplifi- cation, though it is sometimes called an office copy. An exemplification is equivalent to the 6riginkl document exemplified. •See note at end of article. DOCUMENTS 603 EXEMPLIFICATIONS. Arkansas. An exemplification of the record of the same court is not sufficient to sustain the issue under a plea of nul tiel record. The original must be produced. — Adams v. State, 11 Ark. 466. Where an original deed is lost, and the subscribing wit- ness dead, after a long lapse of time an exemplification of an unauthorized record may be admitted in evidence as tending to show the execution of the original. — Tram- mell v. Thurmond, 17 Ark. 263. Kansas. An exemplification of an original document filed in the department of the interior, and certified to by the commissioner of the General Land Office to be a literal copy, is admissible in evidence with like effect as the original, when attested by the officer having custody of the original. — Rierson v. St. Louis & S. F. Ry. Co., 59 Kan. 32, 51 P. 901. New Jersey. "There is a difference in the methods by which judicial records and by which public records are provable. Judicial records are provable by exemplified copies. An exemplified copy at common law was obtained by removing the record into the court of chancery by certiorari. The great seal was attached to a copy, which was transmitted by a mittimus to the court in which it was to be used as evidence. In this country, says Prof. Greenleaf, the great seal usually, if not always, being kept by the secretary of state, a different course prevails; and an exemplified copy under the seal of the court is usually admitted, even upon a plea of nul tiel record, as sufficient evidence." — West Jersey Traction Co. v. Board of Public Works, 57 N. J. L. 313, 30 Atl. 581. Texas. Exemplifications of the records of another state not authenticated as required by law, are inadmissible in evidence. — Newsom v. Langford, (Tex. Civ. App.), 174 S. W. 1036. ULah. The laws of the United States require all patents i the Gel i oilice to be recorded in that office, and the commissioner is required to furnish ex- emplifications thereof when required by interested parties; 604 DOCUMENTS and such exemplifications, authenticated by the seal of and certificate of the commissioner, are made evidence equally with the originals thereof. — Bullion, Beck & Cham- pion Min. Co. v. Eureka Hill M. Co., 5 Utah 3, 11 P. 515. Article 78.* copies equivalent to exemplifications. A copy made by an officer of the Court, who is authorized to make it by a rule of Court, but not required by law to make it, is regarded as equiv- alent to an exemplification in the same Cause and Court, but in other Causes or Courts it is not ad- missible unless it can be proved as an examined copy. COPIES EQUIVALENT TO EXEMPLIFICATIONS. New Jersey. In addition to copies exemplified by the great seal, or seal of a court, there were certified copies made by the officer in custody of the judicial records, and known as "office copies." These were admissible only in the same cause and in the same court. — West Jersey Traction Co. v. Board of Public Works, 57 N. J. L. 313, 30 Atl. 581. NOTE XXXI. (To Articles 77 and 78.) The learning as to exemplifications and office-copies will be found in the following authorities: [2 Wigmore Ev., § 1273]; Gilbert's Law of Evidence, 11-20; Buller, Nisi Prius, 228, and following; Starkie, 256-266 (fully and very conveni- ently); 2 Ph. Ev. 196-200; T. E. ss. 1380-1384; R. N. P. 112- 115. The second paragraph of article 77 is founded on Apple- ton v. Braybrook, 6 M. & S. 39. As to exemplifications not under the Great Seal, it is re- markable that the Judicature Acts give no Seal to the Su- preme Court, or the High Court, or any of its divisions. ♦See note at end of article. DOCUMENTS 605 Article 79. certified copies. It is provided by many statutes that various certificates, official and public documents, docu- ments and proceedings of corporations, and of joint-stock and other companies, and certified copies of documents, bye-laws, entries in registers and other books, shall be receivable in evidence of certain particulars in Courts of Justice, pro- vided they are respectively authenticated in the manner prescribed by such statutes, (a) Whenever, by virtue of any such provision, any such certificate or certified copy as aforesaid is receivable in proof of any particular in any Court of Justice, it is admissible as evidence if it pur- ports to be authenticated in the manner pre- scribed by law without proof of any stamp, seal, or signature required for its authentication or of the official character of the person who appears to have signed it. (b) (a) 8 & 9 Vict. c. 113, preamble. Many such statutes are In T. E. s. 14 40 and following sections. See, too, K. N. 1'. LI 4-115. [3 Wigmore Ev., § 1677 et seq.]. (b) 8 & 9 Vict. c. 113, s. 1. I believe the above to be the 1 of the provision, but the language is greatly condensed. Some words ;it the end of the section are regarded as un- meaning by several text writers. See, e. g., R. N. P. 116; 2 I'll i:v. 241; T. B. s. 7, note 1. Mr. Taylor says that the concluding words of the section were introduced into the Act while passing through the House of Commons. He adds, th.-y appear to have been copied from 1 & 2 Vict. c. 94, s. 13, is.e art. 76) "by some honorable member who did not know distinctly what he was about." They certainly add nothing to the sense. 606 DOCUMENTS Whenever any book or other document is of such a public nature as to be admissible in evi- dence on its mere production from the proper cus- tody, and no statute exists which renders its con- tents provable by means of a copy, any copy thereof or extract therefrom is admissible in proof of its contents, (c) provided it purport to be signed and certified as a true copy or extract by the officer to whosccustody the original is en- trusted. Every such officer must furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words, (d) CERTIFIED COPIES. Proof By Certified Copies. California. Authenticated copy of the record is prima facie evidence of the due execution of the original deed. —Anthony v. Chapman, 65 Cal. 73, 2 P. 889. Where the original document is in the custody of a pub- lic officer, a certified copy is admissible to prove the con- tents.— Dyer v. Hudson, 65 Cal. 372, 4 P. 235. A certified copy of the record of a deed may be read in evidence when the original is not in the possession or under the control of the person offering the copy, and is prima facie evidence of the execution of the original. — Bennett v. Green. 74 Cal. 425, 16 P. 231; Green v. Green, 103 Cal. 108, 37 P. 188. Colorado. Matters of record may be proven by certified copies.— McAllister v. People, 28 Colo. 156, 63 P. 308; Em- : i !| (c) The words "provided it be proved to be an examined copy or extract, or," occur in the Act, but are here omitted, because their effect is given in article 75. (d) 14 & 15 Vict. c. 99, s. 14. . DOCUMENTS 607 pire Ranch & C. Co. v. Lumelius, 24 Colo. App. 49, 131 P. 796. Kansas. A certified copy of an instrument executed and delivered to defendant and filed for record by him, may be given in evidence with same effect as the original, as it will be presumed that the latter is in the possession or under the control of defendant.— Eby v. Winters, 51 Kan. 777, 33 P. 471. Where original statements made for taxation purposes would be competent evidence, but are not in possession or control of the party, certified copies are admissible. — Bowersock v. Adams, 55 Kan. 681, 41 P. 971. Montana. The original record of a properly acknowledged and recorded instrument, or a certified copy of such rec- ord may be read in evidence with the same effect as the original.— First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718; Capell v. Fagan, 30 Mont. 507, 77 P. 55. New Mexico. In a prosecution for larceny it is only nec- essary to introduce a certified copy of a recorded brand where the evidence of ownership depends upon the brand. —Gale & Farr v. Salas, 11 N. M. 211, 66 P. 520; State v. Analla, 18 N. M. 294, 136 P. 600. Texas. Copies of maps from the General Land Office are admissible in evidence when properly certified. — Houston v. Blythe, 60 Tex. 506. Where a document of public nature would itself be evidence if produced, and which could not be removed without inconvenience to the public interests, its contents may be proved by a certified copy. — Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064; Texas & P. Ry. Co. v. Graham & Price, (Tex. Civ. App.), 174 S. W. 297. Public documents and records may be proved by cer- tified copies.— Robertson v. Brothers. (Tex. Civ. App.), 139 S. W. 657; Rudolph v. Tinsley, (Tex. Civ. App.), 143 S. W. 209; Columbo v. State, (Tex. Cr. R.), 145 S. W. 910; Whitaker v. Browning, (Tex. Civ. App.). 155 S. W. 1197; Sullivan v. Fant. (Tex. Civ. App.), 160 S. W. 612; Robert- son v. Talmadge. (Tex. Civ. App.), 174 S. W. 627. 608 DOCUMENTS . Where the original document is properly archived in the county clerk's office, a certified copy is admissible in evidence. — Sullivan v. Fant, (Tex. Civ. App.), 160 S. W. 612; Robertson v. Talmadge, (Tex. Civ. App.), 174 S. W. 627. Utah. The record or a certified copy thereof of a duly executed instrument may be read in evidence when the original is beyond the control of the party offering such record or copy. — Comp. Laws (1907), § 3409; Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah 339, 47 P. 311. Washington. Any writing recorded or filed for record ac- cording to law may be proved by a certified copy of the record to all intents and purposes as the original. — R. & B. Codes and Stats., (1910), § 1260. A certified copy of a mortgage from the records of the county auditor's office is admissible in evidence, without further proof of execution than the acknowledgment there- on.— Howard v. Gemming, 10 Wash. 30, 38 P. 766. A certified copy of the record of a deed properly authen- ticated by the custodian is admissible in evidence without proving the genuineness of the original. — Ball. Ann. Codes & Stat., § 6046; Chrast v. O'Connor, 41 Wash. 360, 83 P. 238. An instrument lawfully recorded in Alaska may be ad- mitted in evidence to show the admissions of the party executing the same. — Pearce v. Greek Boys' Min. Co., 48 Wash. 38, 92 P. 773. Authority to Register, File and Certify. Arkansas. Before a certified copy of records of instru- ment of another state is admissible, it must be shown that the statutes of such state authorized registration. — McNeill v. Arnold, 17 Ark. 154. Idaho. Where the law requires a record of a document to be made, a certified copy of the record is admissible in evidence. — Black Canyon Irr. Dist. v. Marple, 19 Ida. 176, 112 P. 766. Montana. The statute makes a certified copy or the rec- ord of an instrument required by law to be recorded ad- missible in evidence with like effect and in like manner DOCUMENTS 609 as the original.— McKinstry v. Clark, 4 Mont. 370, 1 P. 759; Flick v. Gold Hill & L. M. Min. Co., 8 Mont. 298, 20 P. 807 To prove the lawful incorporation of a company in an- other state, it must be shown that the laws of such state authorized its incorporation. A certified copy of the rec- ord of incorporation only does not go far enough. — Mil- waukee Gold Ex. Co. v. Gordon, 37 Mont. 209, 95 P. 995. New Jersey. A paper certified by the secretary of state, under his seal, to be a true copy of a description of routes of a trolley line, filed in his office, is not evidence. — West Jersey Traction Co. v. Board of Public Works, 57 N. J. L. 313, 30 Atl. 581. A paper purporting to be a certified copy of a public document, although certified by the officer in whose cus- tody it is placed, whether under seal or not, is not receiv- able in evidence unless such certification be enjoined or permitted by statute. — West Jersey Traction Co. v. Board of Public Works, 57 N. J. L. 313, 30 Atl. 581. North Dakota. Certified copies of parish records from Norway of recorded births, marriages and deaths, tending to establish respondents to be heirs of deceased, held in- admissible for want of proof, as a foundation for their ad- mission, of the foreign law requiring such registration as an official duty. — Peterson's Estate, In re, 22 N. D. 4S0, 134 N. W. 751. Certified copies of parish records from Norway of re- corded births, deaths and marriages, purported to be cer- tified by the pastors as keepers of the records, authenti- cated under seal by district judges as to genuineness of the pastor's signatures and that the records were kept pursuant to requirements of law, and reauthenticated by higher church officials, and all certified under seal of office as to verity of signatures, faith and credit to be given, and as made under lawful authority in turn by the Ameri- can consul residing in Kristiana. Norway, held, insuffi- cient to warrant the reception in evidence of such docu- ments so certified, without further proof that the foreign law was not in writing. — Peterson's Estate, In re. 22 N. D. 480, 134 N. W. 751. 610 DOCUMENTS South Dakota. A certified copy of a record, or a certif- icate of the contents thereof is inadmissible in evidence in the absence of statutory authority for the making of the record of such certificate. — Davis v. Davis, 24 S. D. 474, 124 N. W. 715; State v. Flagstad, 25 S. D. 337, 126 N. W. 585; Murray v. Johnson, 28 S. D. 571, 134 N. W. 206; McKinnon v. Puller, 33 S. D. 582, 146 N. W. 910. Texas. It is only such documents as are required or per- mitted by law to be filed in a public office so as to con- stitute them archives or records, that may be proved by copies, certified under the authority of such office. — Hern- don v. Casiano, 7 Tex. 322; State v. Cardinas, 47 Tex. 250; Hatchett v. Connor, 30 Tex. 110; Lott v. King, 79 Tex. 292, 15 S. W. 231; Southwestern Surety Ins. Co. v. Anderson, (Tex.), 155 S. W. 1176. The statute authorizing the introduction in evidence of a certified copy of the record of a deed applies only to deeds properly recorded within the state, not to those re- corded in other states conveying lands in Texas. — William- son v. Work, 33 Tex. Civ. App. 369, 77 S. W. 266; Rice In- stitute v. Freeman, (Tex. Civ. App.), 145 S. W. 688. A copy of an alleged birth record unaccompanied by proof of any law requiring the keeping thereof, or of the genuineness of the original record, or that it is certified by the proper person, is inadmissible in evidence. — Guerra v. San Antonio Sewer Pipe Co., (Tex. Civ. App.), 163 S. W. 669. If a law requiring the keeping of a record, and the genu- ineness thereof is proved, a certified copy of such record is admissible provided the genuineness of the signature of the certifying officer is properly authenticated. — Guerra v. San Antonio Sewer Pipe Co., (Tex. Civ. App.), 163 S. W. 669. Officers Authorized To Certify. Kansas. The county clerk and not the county treasurer is the legal custodian of redemption notices required to be given before the execution of a tax deed, hence a certified copy made by the latter is inadmissible in evidence. — Berg- man v. Bullitt, 43 Kan. 709, 23 P. 938. DOCUMENTS 611 Manner of Certifying. Arkansas. An alleged transcript of a public document not certified to be correct by the proper custodian is not ad- missible in evidence. — Winn v. Whitehouse, 96 Ark. 42, 131 S. W. 70. Kansas. Where the official character of a letter is ap- parent upon its face, the certification of a copy need not state that it is official in order that it may be introduced in evidence.— Darcy v. McCarthy, 35 Kan. 722, 12 P. 104. The certificate should show that alleged copies of papers filed in public offices are copies of the originals and not of transcripts to entitle certified copies to admission as evidence. — Drumm v. Cessnum, 58 Kan. 331, 49 P. 78. Oregon. The requirement of a statute that copies used as evidence shall be compared by the certifying officer and certified to be correct, is satisfied when such officer on the witness stand testifies that he had compared the alleged copies with the originals. — Oregon R. & N. Co. v. Coolidge, 59 Or. 5, 116 P. 93. Texas. A copy of an indictment having no certificate is inadmissible in evidence in the absence of proof that it is an examined copy. — Johnson v. State, (Tex. Cr. R.), 149 S. W. 165. Accounting For Original. California. A certified copy of the resolutions of a board of directors of a corporation is admissible without proof of the loss of the records. — Purser v. Eagle Lake Land & Irr. Co., Ill Cal. 139, 43 P. 523. Kansas. Certified copies of the records of conveyances are admissible in evidence where the original cannot be produced. — Bernstein v. Smith. 10 Kan. 60; Meskimen v. Day. 35 Kan. 46, 10 P. 14; Gildehaus v. Whiting, 39 Kan. 706, 18 P. 916; Rullman v. Barr, 54 Kan. 643. 39 P. 179; Van Hali v. Rea, 85 Kan. 675, 118 P. 693; Masonic Bldg. Ass'n v. Gordon, 88 Kan. 266, 128 P. 394. The certified record of a patent is admissible without proof that the original is lost, destroyed or beyond con- trol of party offering it. — Bernstein v. Smith, 10 Kan. 60. A certified copy of the register made up from birth cer- 612 DOCUMENTS tificates furnished by physicians and midwives in com- pliance with the law, is admissible in evidence with the same effect as the original without accounting for the ori- ginal.— State v. Miller, 90 Kan. 230, 133 P. 878. Montana. A certified copy of the record of a location no- tice is admissible in evidence without accounting for the original. — McKinstry v. Clark, 4 Mont. 370, 1 P. 759; Gar- field M. & M. Co. v. Hammer, 6 Mont. 53, 8 P. 153. Where the statute makes a certified copy evidence, the copy is admissible without accounting for the original. —McKinstry v. Clark, 4 Mont. 370, 1 P. 759; Garfield M. & M. Co. v. Hammer, 6 Mont, 53, 8 P. 153. Nebraska. A certified transcript of the record of a deed duly recorded may be read in evidence with like force and effect as the original when the latter is unavailable. — Thams v. Sharp, 49 Neb. 237, 68 N. W. 474. Oklahoma. Certified copies of deeds may be received in evidence to prove an instrument authorized to be recorded, when the original is not in the possession or under the control of the party desiring to use the same. — Dyal v. Norton, (Okl.), 150 P. 703. Certificate of Particular Facts. California. A certificate by the secretary of state that articles of incorporation were issued on a certain date, is not equivalent to a certified copy of the articles to prove the issuance thereof.— Wall v. Mines, 130 Cal. 27, 62 P. 386. Oklahoma. Certificates of county Officers purporting to show the contents of their records, are not competent evi- dence, unless authorized by statute. — Marlow v. School District, 29 Okl. 304, 116 P. 797. Texas. Though the certificate of the Commissioner of the General Land Office of his conclusions from his records is not admissible in evidence, he may certify to such facts as directly and not circumstantially appear from such papers, documents or records, including the statement that the records upon which a certain classification appears were those in his office during certain years. — Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064. DOCUMENTS 613 A certificate of facts alleged to appear in public records is not admissible to show the contents of such records. — Sullivan v. Fant, (Tex. Civ. App.), 160 S. W. 612. Registers and Documents Certified. Arizona. The records of the war department at Washing- ton concerning the contract in suit, may be shown by a properly authenticated transcript thereof. — United States v. Drachman, 5 Ariz. 13, 43 P. 222. A certified copy of a recorded location notice may be read in evidence with like effect as if the original had been produced.— Score v. Griffin, 9 Ariz. 295, 80 P. 331. Arkansas. A certified copy of the record of a conveyance is admissible in evidence without proof of the execution. —Sibley v. England, 90 Ark. 424, 119 S. W. 820. A patent may be proved by the original itself or by a certified copy of the record under the seal of the Patent Office and certified by the Commissioner of Patents or his chief assistant.— Ensign & Co. v. Coffelt, 102 Ark. 568, 145 S. W. 231. California. Certified copies of the record of instruments acknowledged or proved and certified according to law may be read in evidence without further proof. — Landers v. Bolton, 26 Cal. 393; Murray v. Tulare I. Co., 120 Cal. 311, 49 P. 563; McGorray v. Robinson, 135 Cal. 312, 67 P. 279; McDougall v. McDougall, 135 Cal. 316, 67 P. 778. Certified copies of the records of deeds are admissible in evidence.— Bennett v. Green, 74 Cal. 425, 16 P. 231; Green v. Green, 103 Cal. 108, 37 P. 186; Adams v. Hopkins, 144 Cal. 19, 77 P. 712; Central Pac. Ry. Co. v. Droge, 171 Cal. 32, 151 P. 663; Preston v. Hirsch, 5 Cal. App. 485, 90 P. 965. Documents filed in the office of the register of the land office may be proved by certified copies. — Goodwin v. McCabe, 75 Cal. 584, 17 P. 705. Kansas. Original statements made for taxation purposes are required by law to be kept, and where the same are not in the possession or control of the party desiring to in- troduce them in evidence, certified copies thereof are ad- missible. — Bowersock v. Adams, 55 Kan. 681, 41 P. 971. 614 DOCUMENTS Montana. Certified copies of records of certificates of in- corporation and of location certificates are admissible. — Garfield M. & M. Co. v. Hammer. 6 Mont. 53, 8 P. 153. North Dakota. A certified copy of the records of the Uni- ted States collector of internal revenue is admissible in evidence.— State v. McKone, (N. D.), 154 N. W. 256. Oklahoma. A certified transcript from the office of the collector of internal revenue is admissible in evidence to prove the issuance of a license to sell intoxicating liquors. —Hargrove v. State, 8 Okl. Cr. 487, 129 P. 74. A certified copy of the record of the internal revenue collector is admissible in evidence to prove payment of the tax required of dealers in liquors. — Blunk v. State, 10 Okl. Cr. 203, 135 P. 946. Texas. A certified copy of the record of a deed is admis- sible as a circumstance tending to prove that it was duly executed. — Burleson v. Collins, (Tex. Civ. App.), 29 S. W. 688; Logan v. Logan, 31 Tex. Civ. App. 295, 72 S. W. 416; Moody v. Ogden, 31 Tex. Civ. App. 395, 72 S. W. 253. A certified copy of the record of any instrument affect- ing title to lands is admissible in evidence when proper predicate is laid; Art. 3700, R. S. — Whitaker v. Browning, (Tex. Civ. App.), 155 S. W. 1197. A certified copy of the record of a deed which has been recorded more than 30 years is admissible in evidence as would the original have been. — Rudolph v. Tinsley, (Tex. Civ. App.), 143 S. W. 209. Copies of transcribed records of conveyances are admis- sible in evidence with like effect as certified copies of the original record. — Wacaser v. Rockland Savings bank, (Tex. Civ. App.), 172 S. W. 737. A certified copy of the record of the Railroad Commis- sion is admissible in evidence. — Missouri, K. & T. Ry. Co. v. Empire Express Co., (Tex. Civ. App.), 173 S. W. 222. Utah. Properly authenticated copies of the record of a United States patent to lands are admissible in evidence. —Tate v. Rose, 35 Utah 240, 99 P. 1003. Washington. A county clerk's certified copy of a con- stable's bond is admissible in evidence. — State v. Yourex, 30 Wash. 611, 71 P. 203. DOCUMENTS 615 In an action for malicious prosecution, the proceedings complained of may be proved by a transcript of the jus- tice's docket.— Kerstetter v. Thomas, 36 Wash. 620, 79 P. 290. The admission of a party contained in a document may be proved by a certified copy thereof taken from the proper records. — Pearce v. Greek Boys' Min. Co., 48 Wash. 38, 92 P. 773. Wyoming. A copy of an ordinance certified by the clerk under the seal of the town is admissible in evidence with- out further proof.— Meldrum v. State, 23 Wyo. 12, 146 P. 596. Imperfections In Acknowledgment or Record. Arkansas. Certified copy of the record of a bill of sale in Louisiana is inadmissible unless proved to have been properly acknowledged and recorded. — Dixon v. Thatcher, 14 Ark. 141. Certified copy of the record of a deed purporting to be under seal is admissible, though a copy of the seal was not in the record.— Sibly v. England, 90 Ark. 424, 119 S. W. 820. California. Under a statute making certified copies of properly acknowledged instruments competent evidence, an unacknowledged instrument is inadmissible.— Fresno Canal & Irr. Co. v. Dunbar, 80 Cal. 530, 22 P. 275. Colorado. A certified copy of the record of a bond and lease not acknowledged is inadmissible in evidence with- out proof of execution. — Milwaukee G. M. Co. v. Tomkins- Christy Hardware Co., 26 Colo. App. 155, 141 P. 527. Texas. Where a deed has been recorded for over ten years without claim adverse or inconsistent to the one evidenced by the instrument having been asserted, a cer- tified copy of the document is admissible over the objec- tion that it appears to have been acknowledged before an unauthorized person.— Sullivan v. Fant, (Tex. Civ. App). 160 S. W. 612. 616 DOCUMENTS Article 80. [judicial records and public documents of other states.] [The records and judicial proceedings of the courts of any state or territory or of any country subject to the jurisdiction of the United States, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate, that the said attestation is in due form. And the said rec- ords and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from which they are taken, (a) All records and exemplifications of books, which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not apper- taining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the governor or sec- retary of state, the chancellor or keeper of the a [Rev. Stat. U. S. § 905; U. S. Comp. St. Ann. 1916, § 1519, with numerous annotations.] DOCUMENTS 617 great seal, of the state, or territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothono- tary of the said court, who shall certify, under his hand and seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or country aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory, or country, as aforesaid, from which they are taken.] (b) JUDICIAL RECORDS OF OTHER STATES. California. C. C. P., § 1906, applies to the certification of a copy of a judicial record of a foreign country. — Wicker- sham v. Johnson, 104 Cal. 407, 38 P. 89. Colorado. A certificate of the judge alone to the trans- cript of proceedings in a court of another state is not suf- ficiently authenticated to be admissible in evidence in Colorado.— Henry Inv. Co. v. Semonian, 45 Colo. 260, 100 P. 425. b [Rev. Satt. U. S. § 906; U. S. Comp. St. Ann. 1916, § 1520. Tli is method of proving judicial records and documents does riot prevent their proof by any other means which may be provided by statutes in the respective states. See 3 Wigr- more Ev., §§ 1652, 1680, 1681.] 618 DOCUMENTS Kansas. Judicial proceedings had in a sister state are provable by certified copies. — Friend v. Miller, 52 Kan. 139, 34 P. 397; Metzger v. Burnett, 5 Kan. App. 374, 48 P. 599. A properly certified copy of the record of judicial pro- ceedings had in another state is admissible to show that such proceedings have been had. — Friend v. Miller, 52 Kan. 139, 34 P. 397; Metzger v. Burnett, 5 Kan. App. 374, 48 P. 599. The record of a judgment rendered by a court of an- other state is not admissible in evidence for the purpose of proving the determination of a fact involved in the trial of a case in a district court of this state, when such record shows that such judgment was rendered without jurisdic- tion of one of the necessary parties. — Looney v. Reeves, 5 Kan. App. 279, 48 P. 606. A copy of a judicial record of another state must be authenticated as required by the federal statutes or ac- cording to the provisions of § 371, C. C. P. Certification according to the provisions of § 372 is not sufficient. — Ayres v. Deering & Co., 76 Kan. 149, 90 P. 794. The record of a judgment rendered by a justice of the peace in another state must be certified according to the laws of Kansas to make it admissible in evidence in that state. — Missouri, K. & T. Ry. Co. v. Hindman, 83 Kan. 35, 110 P. 102. Montana. Whether a record is or is not entitled to full faith and credit is a question for the trial judge. — Adams v. Stenehjim, 50 Mont. 232, 146 P. 469. Nebraska. Judicial records of another state proved in the manner regulated by statute, are admissible without further proof that the court is a court of record. — Brown v. Collins, 2 Neb. (Unof.), 149, 96 N. W. 173. North Dakota. A judgment of a justice of the peace of a sister state cannot be proved by an authenticated copy of the judgment, and when a transcript of such judgment has been filed in the office of the clerk of the district court in the county where rendered, a certified copy of the rec- ords of such court is inadmissible to prove the judgment. — Strecker v. Railson, 16 N. D. 68, 111 N. W. 612. DOCUMENTS 619 Neither the act of Congress (Rev. St., § 905; U. S. Comp. St., 1901, p. 677), nor Rev. Code N. D., 1905, § 7292, relating to the authentication of copies of judicial records of other states, applies to the records of courts of limited jurisdiction.— Strecker v. Railson, 16 N. D. 68, 111 N. W. 612. Oklahoma. A transcript of a judgment rendered in a court of record in another state is admissible in evidence though it does not show that it was signed by the presiding judge, if otherwise duly authenticated. — Dean v. Stone, 2 Okl. 13, 35 P. 578. Oregon. Unless it affirmatively appears that the court of another state is composed of more than one judge, a trans- cript of a judgment of such court is admissible in evidence though it does not show that the judge certifying to the same was the sole, chief or presiding judge. — Keyes v. Mooney, 13 Or. 179, 9 P. 400. Texas. Records and judicial proceedings of the courts of a sister state may be proved or admitted in evidence in any other court when properly authenticated. — Tourtelot v. Booker, (Tex. Civ. App.), 160 S. W. 293. When the laws under which a judgment is rendered in a sister state are proved and the judgment is in conform- ity therewith, it is sufficient to establish the judgment. — Tourtelot v. Booker, (Tex. Civ. App.), 160 S. W. 293. Washington. In certifying the record of a judgment of another state it is not necessary that the clerk should cer- tify that he is the custodian of the record.— Carpenter v. Ritchie, 2 Wash. 512, 28 P. 380. An objection to the introduction in evidence of a cer- tified copy of the record of a judgment rendered in another state, that the judge did not certify that the attestation was in due form, will not be sustained. — Carpenter v. Ritchie, 2 Wash. 512, 28 P. 380. A certified copy of the record of a judgment of another state is sufficiently authenticated if the seal of the court is attached to the clerk's certificate, it need not be attached to the record itself, nor need it show that the judgment entry in the journal was signed by the judge; and it is 620 DOCUMENTS not necessary that the clerk should certify that he is the custodian of the record. — Carpenter v. Ritchie, 2 Wash. 512, 28 P. 380. The sufficiency of the authentication of a foreign judg- ment record is a question for the trial judge. — Clark v. Eltinge, 38 Wash. 376, 80 P. 556. MISCELLANEOUS RECORDS OF OTHER STATES. Kansas. A plat on file or recorded in another state cannot be proved by a certified copy alone, but must be identified by the proper custodian and the copy proved by his oath. — Munkres v. McCaskill, 64 Kan. 516, 68 P. 42. North Dakota. Before certified copies of a foreign non- judicial official records are admissible, proof of the foreign law making them official records and imposing the duty of their keeping must be made. Such proof is made in the same manner as the proof of any other fact in issue. — Peterson's Estate, In re, 22 N. D. 480, 134 N. W. 751. Oregon. Under the Oregon statutes the certification of a copy of a foreign record is to be made in accordance with the law of the place of the record. — State v. McDonald, 55 Or. 419, 104 P. 967. A foreign document not certified according to the pro- visions of the statute (L. O. L., § 766) is not admissible in evidence.— State v. Hassing, 60 Or. 81, 118 P. 195. Texas. Where an original writing is an archive of a for- eign government and there are no means of testing its genuineness, or the verity of the proffered testimonio by any record or other evidence within the jurisdiction, some extrinsic evidence of the execution or genuineness of the instrument is required before it can be introduced in evi- dence. — State v. Cardinas, 47 Tex. 291; Sullivan v. Fant, (Tex. Civ. App.), 160 S. W. 612. Certified copies of the records of another state are not admissible in evidence, where there is no proof given as to the effect of such records in the state where they are made.— Newsom v. Langford, (Tex. Civ. App.), 174 S. W. 1036. DOCUMENTS 621 Utah. Record of the court of another state, showing ap- pointment of a receiver, held duly authenticated. — Steinke v. Graves, 16 Utah 293, 52 P. 386. Washington. Public records of other states, other than courts, must be certified according to the federal statutes to be admissible as evidence in the courts of the state of Washington.— James v. James, 35 Wash. 650, 77 P. 1080. Article 81. [officially printed copies.] [The authorized printed copies of the Revised Statutes of the United States, edition of 1878, shall be legal evidence of the laws therein con- tained, in all the courts of the United States, and of the several States and Territories, but shall not preclude reference to nor control, in case of any discrepancy, the effect of any original act as passed by Congress since the first day of Decem- ber, 1873. Also the authorized bound copies of the acts of each Congress shall be legal evidence of the laws therein contained, in all courts of the United States and of the several states there- in.(a) The law of other jurisdictions is, in most, if not all, of the states, admitted in evidence under statutes to the usual effect that printed copies of statutes, codes, or other written law of other states or territories or foreign governments, pur- porting or proven to have been published by the authority thereof, or proved to be commonly ad- (a) [Rev. St. U. S. 1878, pp. 1090-1092, ch. 333, sees. 2, 8; U. S. Comp. St. Ann. 1916, j§ 1523, 1525.] 622 DOCUMENTS mitted in the tribunals of such jurisdiction shall be admissible to prove such law. (b) Legislative enactments of the several states provide for the admission in evidence of their own written laws contained in officially printed volumes, as well as of municipal ordinances and other documents.] (c) OFFICIALLY PRINTED COPIES. Idaho. Foreign documents published by authority of other states or governments and shown to be commonly admitted in evidence in the tribunals of such states or govern- ments, are admissible in evidence in Idaho under § 5969, Rev. Code.— Moore v. Pooley, 17 Ida. 57, 104 P. 898. Books printed or published under the authority of a state or terrtitory or foreign country, purporting to con- tain the statutes or other written law of such state, etc., or proved to be commonly admitted in the tribunals of such state, etc., as evidence of the written law thereof, are admissible in Idaho as evidence of such laws. — Rev. Code, § 5969; Moore v. Pooley, 17 Ida. 57, 104 P. 898. Oklahoma. Printed copies of the final rolls of Citizens and Freedmen of the Five Civilized Tribes prepared by the Commissioner and approved by the Secretary of the Interior under the authority of Congress are admissible in evidence.— Lawless v. Raddis, 36 Okl. 616, 129 P. 711. Oregon. Books printed and published under the author- ity of a sister state, purporting to contain the statutes of such state are admissible as proof of such laws. — State v. Savage, 36 Or. 191, 60 P. 610; State v. McDonald, 55 Or. 519, 104 P. 967. (b) 3 Wigmore Ev., § 1684.] (c) [Id.] DOCUMENTS 623 Article 82. [legislative acts of states and territories.] [The acts of the legislature of any State or Territory or of any country subject to the juris- diction of the United States, shall be authenti- cated by having the seals of such State or Terri- tory, or country, affixed thereto, but this provision does not preclude any other method of proof al- lowed by state law, or admitted by the court, where the same may be offered in evidence.] (a) LEGISLATIVE ACTS. Oregon. Publications purporting to contain the laws of foreign countries or sister states, published by authority of such countries or states are admissible in evidence to establish such laws.— State v. Savage. 36 Or. 191, 60 P. 610; State v. McDonald, 55 Or. 519, 104 P. 967. Article 83. [state papers, proclamations, legislative JOURNALS, ami PUHMC DOCUMEN I S. | [The officially printed copies of proclamations, State Papers, legislative journals and miscellan- eous public documents are admissible in evi- dence, (a) By the U. S. Revised Statutes it is provided that extracts from the Journals of the Senate, or (a) [Rev. St. U. S. 1878, § 905; U. S. Comp. St. Ann. 1916. § 1519, with numerous annotations; 3 Wigmore Ev., §§ 1680, 1681.] (a) [3 Wigmore Ev., J 1684.] 624 DOCUMENTS of the House of Representatives, and of the Exe- ecutive Journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the Senate or by the clerk of the House of Rep- resentatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court.] (b) PROOF OF OFFICIAL DOCUMENTS. "In general, then, where an official printer is appointed, his printed copies of official documents are admissible. It is not necessary that the printer should be an officer in the strictest sense, nor that he should be exclusively concerned with offi- cial work; it is enough that he is appointed by the executive to print official documents. As for authentication of his copies, it is enough that the copy offered purports to be printed by authority of the government; its genuineness is assumed without further evidence. Such seems to be the general prin- ciples of the common law." — 3 Wigmore Ev., § 1684. Article 84. [foreign laws, acts of state, and judgments.] [Foreign laws, acts of state and judicial records may be authenticated by an exemplification of a copy under the great seal of the state, or by a copy proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer properly authorized by law to give the copy, which certificate must itself also be authenticated, (a) (b) [Rev. St. U. S. 1878, § 895; U. S. Comp St. Ann. 1916, 1508.] (a) [2 Wigmore Ev., § 1271.] DOCUMENTS 625 In some states, by statute, foreign written law may be proved orally, usually with provision that the court may in its discretion require that testi- mony as to such law from the expert witness be accompanied by a copy of the statute in ques- tion, (b) The unwritten or common law of any state or territory is provable by parol evidence.] (c) FOREIGN LAWS. North Dakota. Foreign unwritten or common law may be established by oral testimony; but where such oral tes- timony does not establish the foreign law to exist as un- written or common law, and negative the existence of a written statute, the proof of the foreign law is insuffi- cient to admit certified copies of foreign official, but non- judicial, records. — Peterson's Estate, In re, 22 N. D. 480, 134 N. W. 751. A foreign law, relied upon as a basis of testimony as to registration of births, marriages and deaths, must be proven as a fact, and when the foreign law exists as a statute or in writing, oral testimony thereof is inadmis- sible under both the common law and the statute of North Dakota (section 7291). — Peterson's Estate, In re, 22 N. D. 480, 134 N. W. 751. (b) [1 Wigmore Ev., § 564; 2 Id., § 1271.] (c) [2 Wigmore Ev., § 1271] 626 DOCUMENTS CHAPTER XL PRESUMPTIONS AS TO DOCUMENTS, Article 85. presumption as to date of a document. When any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date, and if more documents than one bear date on the same day, they are pre- sumed to have been executed in the order neces- sary to effect the object for which they were exe- cuted, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practiced, and would, if practiced, injure any per- son, or defeat the objects of any law. (a) Illustrations. (a) An instrument admitting a debt, and dated before the act of bankruptcy, is produced by a bankrupt's assignees, to prove the petitioning creditor's debt. Further evidence of the date of the transaction is required in order to guard against collusion between the assignees and the bankrupt, to the prejudice of creditors whose claims date from the interval between the act of bankruptcy and the adjudication. l (b) In a petition for damages on the ground of adultery letters are produced between the husband and wife, dated before the alleged adultery, and showing that they were then on affectionate terms. Further evidence of the date is re- quired to prevent collusion, to the prejudice of the person petitioned against. 2 (a) 1 Ph. Ev. 482-483; T. E. s. 137; Best, s. 403; [4 Wig- more Ev., § 2520; Mott v. Richtmyer, 57 N. T. 49.] lAnderson v. Weston, 6 Bing. N. C. 302; Sinclair v. Bag- gallay, M. & W. 318. sHoulston v. Smith, 2 C. & P. 24. DOCUMENTS 627 DATE AND PLACE OF EXECUTION. A deed is presumed to have been executed on the day of its date.— Rohr v. Alexander, 57 Kan. 381, 46 P. 699; Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308; Kauff- man v. Baillie, 46 Wash. 248, 89 P. 548. Illinois. The law presumes that a note was executed on the day it bears date, and such presumption prevails until overcome by proof. — Knisely v. Sampson, 100 111. 573. Massachusetts. The date of a deed is prima facie evi- dence of the date of its execution. — Smith v. Porter, 10 Gray 66. <% New York. The general presumption is that an instru- ment was made at its date. — Livingston v. Arnouz, 56 N. Y. 507. The presumption is that an affidavit was signed on the date it purports to have been sworn to. — People v Warden of City Prison, 135 N. Y. S. 841. Oregon. In the absence of evidence to the contrary a promissory note will be presumed to have been executed where pretended to be dated. — Casner v. Hoskins, 64 Or. 254, 130 P. 55. Wisconsin. It is presumed that a deed duly executed was executed on the day it bears date. — McFarlane v. Louden, 99 Wis. 620, 75 N. W. 394. DATE OF DELIVERY. California. A deed will be presumed to have been deliv- ered on the day of its date. — Eaton v. Wilkins, 163 Cal. 742, 127 P. 71. Indiana. When a deed is found in the hands of the gran- tee, with regular evidence of its execution, it is presumed to be delivered at the time it bears date. — Scobey v. Walker. 114 Ind. 254, 15 N. E. 674. New York. A deed is presumed to have been delivered at the time of its date— People v. Snyder, 41 N. Y. 397. Texas. A deed is presumed to have been delivered at the time of its date. — Wadsworth v. Vinyard, (Tex. Civ. App.), 131 S. W. 1171. 628 DOCUMENTS Article 86. presumption as to stamp of a document. When any document is not produced after due notice to produce, and after being called for, it is presumed to have been duly stamped, (a) unless it be shown to have remained unstamped for some time after its execution, (b) PRESUMPTIONS AS TO STAMPS. Pennsylvania. The prima facie presumption arising from the execution of the note, the full amount of stamps affixed, their actual cancellation, and the initials of the defendant on a part of the stamps, would prevent the court from taking from the jury the fact of an authorized cancellation of the smaller stamps. — Rees v. Jackson, 64 Pa. St. 486, 3 Am. Rep. 608. Texas. A federal statute providing that no instrument not having a required stamp shall be admitted as evidence does not apply to state courts. — Thomas v. State, 40 Tex. Cr. R. 562, 51 S. W. 242. Article 87. presumption as to sealing and delivery of deeds. When any document purporting to be and stamped as a deed, appears or is proved to be or to have been signed and duly attested, it is pre- sumed to have been sealed and delivered, although no impression of a seal appears thereon, (a) (a) Closmadeuc v. Carrel, 18 C. B. 44. In this case the growth of the rule is traced, and other cases are referred to, in the judgment of Cresswell, J. (b) Marine Investment Company v. Haviside, L.. R. 5 E. & I. App. 624. (a) Hall v. Bainbridge, 12 Q. B. 699-710; Re Sandilands, L. R. 6 C. P. 411. DOCUMENTS 629 PRESUMPTION AS TO SEAL. Nevada. The recording of the seal to a deed is not abso- lutely essential. If the original instrument cannot be pro- duced, and the record thereof is offered in evidence, the existence of the seal will be presumed from the statement in the deed that the grantor did set his hand and affix his seal thereto, and from the attestation clause that it was signed, sealed, and delivered in the presence of witnesses. — Flowery Mining Co. v. North Bonanza M. Co., 16 Nev. 302. PRESUMPTIONS AS TO DELIVERY. Arkansas. The registration of a deed raises a presump- tion of delivery to and acceptance by the grantee. — Gra- ham v. Suddeth, 97 Ark. 283, 133 S. W. 1033. California. Evidence is admissible that, although plaintiff has possession of a deed which was handed him by the grantor, there was in reality no delivery intended. — Black v. Sharkey, 104 Cal. 279, 37 P. 939. Kansas. An instrument shown to have been long in the possession of the party producing it will be presumed to have been executed and delivered on the date it bears. — Rohr v. Alexander, 57 Kan. 381, 46 P. 699. Where a deed properly executed is found among the papers of a deceased grantee proper delivery will be pre- sumed.— Fish v. Poorman, 85 Kan. 237, 116 P. 898. It will be presumed that a deed was not delivered prior to the acknowledgment.— Kitchener v. Jehlik, 85 Kan. 684, 118 P. 1058. North Dakota. An instrument shown to have been long in the possession of the party producing it will be pre- sumed to have been executed and delivered on the date it bears.— Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308. Oregon. The delivery of a deed will be presumed from circumstances.— Series v. Series, 35 Or. 289, 57 P. 634. South Dakota. Where a deed is found in the possession of the grantor it will be presumed that it was never deliv- ered, and the same presumption arises where the Instru- ment is found in the possession of the scrivener, he being considered as much the agent of one party as the other. — Cassidy v. Holland, 27 S. D. 287, 130 N. W. 771. 630 DOCUMENTS Texas. Possession of a deed by the grantee raises a pre- sumption of due delivery thereof to him. — Tuttle v. Tur- ner, 28 Tex. 759; Wadsworth v. Vinyard, (Tex. Civ. App.), 131 S. W. 1171. Washington. An instrument shown to have been long in the possession of a party producing it at the trial will be presumed to have been executed and delivered to him on the date it bears.— Kauffman v. Baillie, 46 Wash. 248, 89 P. 548. When a deed properly executed and acknowledged passes into the custody and control of the grantee and is recorded, a strong presumption of delivery is raised. — Anderson v. Woolley, 61 Wash. 236, 112 P. 271; Jackson v. Lamar, 58 Wash. 383, 108 P. 946. PRESUMPTION AS TO EXECUTION. Arkansas. When a letter is received in the course of mail, and purports to be in answer to a letter that was pre- viously duly addressed and mailed, the presumption arises that such letter is the genuine instrument of the purported writer and is sufficiently authenticated to go to the jury." — Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394. Article 8S. PRESUMPTIONS AS TO DOCUMENTS THIRTY YEARS OLD. Where any document purporting or proved to be thirty years old is produced from any custody which the judge in the particular case considers proper, it is presumed that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested ; and the attestation or execution need not be proved, DOCUMENTS 631 even if the attesting witness is alive and in court. Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circum- stances of the particular case are such as to ren- der such an origin probable, (a) ANCIENT DEEDS. Presumption As To Execution. An instrument shown to have been long in the posses- sion of the party producing it will be presumed to have been executed on the date it bears. — Rohr v. Alexander, 57 Kan. 381, 46 P. 699; Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308. Texas. An instrument thirty years old produced from natural or proper custody will be presumed to have been properly executed. — Mackey v. Armstrong, 84 Tex. 159, 19 S. W. 463; Flores v. Hovel. (Tex. Civ. App.), 125 S. W. 606. Authority To Execute. Texas. Whero a conveyance would be evidence as an ancient document without proof of execution, the power under which it purports to have been executed will be presumed. — Watrous v. McGrew, 16 Tex. 513; Veremendi v. Hutchins. 48 Tex. 552; Garner v. Lasker, 71 Tex. 431, 9 S. W. 332; Hensel v. Kegans, 79 Tex. 347, 15 S. W. 275! After a lapse of thirty years the authority of a person to execute a deed under a power from another, or in a fiduciary capacity, will be presumed. — Tucker v. Murphy, 66 Tex. 355, 1 S. W. 76; Williams v. Hardie, (Tex. Civ. App.), 21 S. W. 267. (a) 2 Ph. Ev, 245-248; Starkle, 621-526; T. B. s. 74 and S3. 593-601; Best, s. 220; [3 Wigmore Ev., § 2137 et seq.]; Floyd v. Tewksbury, 129 Mass. 362. 632 DOCUMENTS A deed over thirty years old purporting to have been executed under the authority of a power of attorney, raises the presumption that the authority existed where such deed comes from proper custody. — O'Donnell v. Johns & Co.. 76 Tex. 362, 13 S. W. 376. The authority of a private person to execute a deed under a power will be presumed after thirty years, but where the authority must emanate from a court whose proceedings are required by law to be a matter of record, the presumption will not arise. — Tucker v. Murphy, 66 Tex. 359, 1 S. W. 76; French v. McGinnis, 10 Tex. Civ. App. 7, 29 S. W. 656; Spencer v. Levy, (Tex. Civ. App.), 173 S. W. 550. Where a deed purports to have been executed by virtue of a power of attorney forty years old, but under which no claim appears to have been asserted for twenty-five years, it will be presumed that the power to execute it did not exist, or that for some other reason no title passed. —Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064; Emory v. Bailey, (Tex. Civ. App.), 181 S. W. 831. The authority to execute a deed may be presumed where the instrument is over thirty years old and recites that the grantor had power to execute. — Skov v. Coffin, (Tex. Civ. App.), 137 S. W. 450. One who signs the name of another to a letter which is more than thirty years old when offered in evidence, will be presumed to have had authority to so sign the name of the other. — Robertson v. Brothers, (Tex. Civ. App.), 139 S. W. 657. Authority to execute an ancient document will be pre- sumed after thirty years, although the instrument is not recorded until more than forty years subsequent to its exe- cution. — Askew v. Cantwell, (Tex. Civ. App.), 146 S. W. 720. Where a deed over thirty years old is put in evidence it will be presumed that the terms of the authority under which it purports to have been executed were complied with. — Wacaser v. Rockland Savings Bank, (Tex. Civ. App.), 172 S. W. 737. DOCUMENTS 633 Delivery. An instrument shown to have been long in the posses- sion of the party producing it will be presumed to have been delivered to him on the date it bears. — Rohr v. Alexander, 57 Kan. 381, 46 P. 699; Leonard v. Fleming, 13 N. D. 629, 102 N. W. 308. Proper Custody. Texas. A deed thirty-three years old will be presumed to come from proper custody, though not recorded. — Ardom v. Cobb, (Tex. Civ. App.), 136 S. W. 271. Possession. It is generally, though not always, held in the jurisdic- tions of the United States that possession of the property in question is not necessary as an absolute requirement to admit an ancient deed in evidence without proof of execution. — Peay v. Capps, 27 Ark. 60; Stroud v. Spring- field, 28 Tex. 649; Johnson v. Timmons, 50 Tex. 521; Holmes v. Coryell, 58 Tex. 680; 3 Wigmore Ev., § 2141. Alterations. Texas. Where erasures and alterations appear on an an- cient instrument, the presumption is that they were made contemporaneously with the execution of the instrument. —Rodriguez v. Hayes, 76 Tex. 225, 13 S. W. 296. Presumption As To Delivery. Oregon. A deed which has been recorded over thirty years will be presumed to have been delivered. — Stephenson v. Van Blokland, 60 Or. 247, 118 P. 1026. Article 89. presl'ml'tio.n ah to alterations. No person producing any document which upon its face appears to have been altered in a mate- rial part can claim under it the enforcement of any right created by it, unless the alteration was 634 DOCUMENTS made before the completion of the document or with the consent of the party to be charged under it or his representative in interest. This rule extends to cases in which the altera- tion was made by a stranger, whilst the document was in the custody of the person producing it, but without his knowledge or leave, (a) Alterations and interlineations appearing on the face of a deed are, in the absence of all evi- dence relating to them, presumed to have been made before the deed was completed, (b) Alterations and interlineations appearing on the face of a will are, in the absence of all evidence relating to them, presumed to have been made after the execution of the will, (c) There is no presumption as to the time when alterations and interlineations, appearing on the face of writings not under seal, were made (d) except that it is presumed that they were so made that the making would not constitute an of- fense, (e) An alteration is said to be material when, if it had been made with the consent of the party (a) Pigot's Case, 11 Rep. 47; Davidson v. Cooper, 11 M. & W. 778; 13 M. & W. 343; Aldous v. Cornwell, L. R. 3 Q. B. 573. This qualifies one of the resolutions in Pigot's Case. The judgment reviews a great number of authorities on the subject. (b) Doe v. Catomore, 16 Q. B. 745; Wikoff's Appeal, 15 Pa. St. 281; Burnham v. Ayer, 35 N. H. 351. (c) Simmons v. Rudall, 1 Sim. N. S. 136. (d) Knight v. Clements, 8 A. & E. 215; [4 Wigmore Ev., § 2525]; Simpson v. Stackhouse, 9 Barr. 186; Clark v. Eck- stein, 22 Pa. St. 507. (e) R. v. Gordon, Dearsley & P. 592; (1 Greenl. Ev., § 564, n. 3). DOCUMENTS 635 charged, it would have affected his interest or varied his obligations in any way whatever. An alteration which in no way affects the rights of the parties or the legal effect of the instrument, is immaterial, (f) PRESUMPTION AS TO ALTERATION. Leaving unfilled blanks in a written instrument raises a presumption of authority to fill same after delivery. — Montgomery v. Dresher, 90 Neb. 632, 134 N. W. 251; Porter v. Hardy, 10 N. D. 551, 88 N. W. 458. Arkansas. That a writing appears on its face to have been altered raises no presumption as to its validity. — Klein v. German Nat. Bank, 69 Ark. 140, 61 S. W. 572; Hatfield School Dist. v. Knight, 112 Ark. 83, 164 S. W. 1137. Nebraska. A note on its face showing no indication of having been altered will be presumed to be unaltered. — Ohio Nat. Bank v. Gill Bros., 85 Neb. 718, 124 N. W. 152. TIME OF ALTERATION. Colorado. Any alteration of a written instrument is pre- sumed to have been made before or at the time of execu- tion in the absence of evidence upon the question. — Cheney v. Barber, 1 Colo. 256. Idaho. Under section C030, Rev. St. Idaho, a party offering in evidence a promissory note showing upon its face that it has been altered is required, before the same can be received, to show that such alteration was made before it came to his hands. — Mulkey v. Long, 5 Ida. 213, 47 P. 949. Where an instrument appears to have been alteerd it will be presumed that the alteration was made before execution and delivery. -Exchange State Bank v. Taber, 26 Idaho 72:!. 145 P. IO'io. Nebraska. When an altered note has been received in evidence either with or without testimony explanatory of < '"> Th i" '"■ the resbll of many ettsee referred to iii T. B. ss. n; 1 n-1620; see also the judgments in Davidson v. Cooper and Aidous v. < '. unwell, referred to above. 636 DOCUMENTS such change, it then becomes the province of the court, or jury, if tried by jury, to decide from the evidence, as a question of fact, whether such alteration was made be- fore or after the execution of the note; and it is error for the court to exclude testimony offered, which is competent upon such question. — Courcamp v. Weber, 39 Neb. 533, 58 N. W. 187. Alterations appearing on the face of an instrument are presumed to have been made before the same was signed and delivered. — Dorsey v. Conrad, 49 Neb. 443, 68 N. W. 645; Colby v. Foxworthy, 80 Neb. 239, 114 N. W. 174; Mus- ser v. Musser, 92 Neb. 387, 138 N. W. 599. Washington. There is a presumption that an instrument in writing was in the same condition when signed that it was when offered in evidence, and such presumption is not changed by the fact that the instrument showed upon its face that the original draft thereof had been changed. — Wolferman v. Bell, 6 Wash. 84, 32 P. 1017; Yakima Nat. Bank v. Knipe, 6 Wash. 348, 33 P. 834. "It would be profitless in this case to undertake to re- view the authorities, for they are numerous and irrecon- cilable; some courts holding that an alteration of the face of a writing raises no presumption either way, but that the question is one for the jury. Other courts have held that the alteration raises the presumption that it was made before delivery; others that in such cases the pre- sumption attaches that the change was made after deliv- ery, and that it must be explained before it is received in evidence; still others that it raises such a presumption only when it is suspicious." — Wolferman v. Bell, 6 Wash. 84, 32 P. 1017. Presumption that interlineations and erasures were made before execution does not apply to the erasure of the name of one of the signers.— Blewett v. Bash, 22 Wash. 536, 61 P. 770. In the absence of evidence to the contrary, erasures ap- pearing on the face of a deed executed by a public officer will be presumed to have been made before execution. — Baylis v. Kerrick, 64 Wash. 410, 116 P. 1082. DOCUMENTARY EVIDENCE 637 CHAPTER XII. OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE, AND OF THE MODIFICATION AND IN- TERPRETATION OF DOCUMENTARY BY ORAL EVI- DENCE. Article 90.* evidence of terms ok contracts, grants, and other dispo- sitions of froperty reduced to a documentary form. When any judgment of any Court or any other judicial or official proceeding, or any contract or grant, or any other disposition of property, has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding, or of the terms of such contract, grant, or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evi- dence is admissible under the provisions herein- before contained, (a) Nor may the contents of any such document be contradicted, altered, added to, or varied by oral evidence, (b) Provided that any of the following matters may be proved — (a) Illustrations (a) and (b); (1 Greenl. Ev., §§ 275, 276, 281). (b) Gorman's Case, 124 Mass. 190; Fay v. Gray, 124 Mass. 590; but see McCormick v. Cheevers, 124 Mass. 262. •See note at end of article. 638 DOCUMENTARY EVIDENCE (1) Fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, (c) want or failure of consideration, or mistake in fact or law, (d) or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or or- der relating thereto, (e) (2) The existence of any separate oral agree- ment as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them, (f ) (3) The existence of any separate oral agree- ment, constituting a condition precedent to the (c) Reffell v. Reffell, L. R. 1 P. & D. 139. Mr. Starkie extends this to mistakes in some other formal particulars. 3 Star. Ev. 787-788. That instrument was influenced by fraud or misrepresentation may be proven. Montgomery v. Pick- ering, 116 Mass. 227; Cushing v. Rice, 46 Me. 303; Lull v. Cass, 43 N. H. 62; Wharton v. Douglass, 76 Pa. St. 273; Wade v. Saunders, 70 N. C. 270. Same is true of wills. Lewis v. Mason, 109 Mass. 169. Or was obtained by duress, Hibbard v. Mills, 46 Vt. 243; Davis v. Luster, 64 Mo. 43; or was for illegal purposes, Totten v. U. S., 92 U. S. 105; Pratt v. Lang- don, 97 Mass. 97; or that parties were incapacitated, Staples v. Wellington, 58 Me. 453. (d) As to mistakes of fact, see Milmine v. Burnham, 76 111. 362; Mays v. Dwight, 82 Pa. St. 462. For mistakes of law see Gebb v. Rose, 40 Md. 387; Galtra v. Sanasach, 53 111. 456; Thurmond v. Clark, 47 Ga. 500. (e) Illustration (c); [4 Wigmore Ev., § 2473, et seq.] (f) Illustrations, (d) and (e) ; [4 Wigmore Ev., § 2435 et seq.]. DOCUMENTARY EVIDENCE 639 attaching of any obligation under any such con- tract, grant, or disposition of property, (g) (4) The existence of any distinct subsequent oral agreement to rescind or modify any such con- tract, grant or disposition of property, provided that such agreement is not invalid under the Statute of Frauds, or otherwise, (h) (5) Any usage or custom by which incidents not expressly mentioned in any contract are an- nexed to contracts of that description ; unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract, (i) Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not in- tended to have legal effect as a contract, or other disposition of property, (j) Oral evidence of the existence of a legal rela- tion is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on. (k) (g) Illustrations (f) and (g); [4 Wigmore Ev., § 2435]. (h) Illustration (h); [4 Wigmore Ev., § 2441]. (i) Wlgglesworth v. Dallison, and note thereto, S. L. C. 598-628; [4 Wigmore Ev., §§ 2440, 2465]. (j) Illustration (i). [4 Wigmore Ev., § 2439]. (k) Illustration (k). 640 DOCUMENTARY EVIDENCE The fact that a person holds a public office need not be proved by the production of his written or sealed appointment thereto, if he is shown to have acted on it. (1) Illustrations. (a) A policy of insurance is effected on goods "in ships from Surinam to London." The goods are shipped in a par- ticular ship, which is lost. The fact that that particular ship was orally excepted from the policy cannot be proved.i (b) An estate called Gotton Farm is conveyed by a deed which describes it as consisting of the particulars described in the first division of a schedule and delineated in a plan on the margin of the schedule. Evidence cannot be given to show that a close not men- tioned in the schedule or delineated in the plan was always treated as part of Gotton Farm, and was intended to be con- veyed by the deed. 2 (c) A institutes a suit against B for the specific perform- ance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would en- title him to have the contract reformed.3 (d) A lets land to B, and they agree that a lease shall be given by A to B.- Before the lease is given, B tells A that he will not sign it unless A promises to destroy the rabbits. A does promise. The lease is afterwards granted, and reserves sporting rights to A, but does not mention the destruction of the rabbits. B may prove A's verbal agreement as to the rabbits. 4 (e) A & B agree verbally that B shall take up an accep- tance of A's, and that thereupon A and B shall make a written agreement for the sale of certain furniture by A to B. B does not take up the acceptance. A may prove the verbal agreement that he should do so. 5 (1) See authorities collected in 1 Ph. Ev. 449-450; T. E. s. 139. lWeston v. Eames, 1 Tau. 115. 2Barton v. Dawes, 10 C. B. 261-265. 3Story's Equity Jurisprudence, chap. v. ss. 153-162. 4Morgan v. Griffiths, L. R. 6 Ex. 70; and see Angell v. Duke, L. R. 10 Q. B. 174. 5Lindley v. Lacey, 17 C. B. n. s. 578. DOCUMENTARY EVIDENCE 641 (f) A & B enter into a written agreement for the sale of an interest in a patent, and at the same time agree verbally that the agreement shall not come into force unless C ap- proves of it. C does not approve. The party interested may show this. s (g) A, a farmer, agrees in writing to transfer to B, another farmer, a farm which A holds of C. It is verbally agreed that the agreement is to be conditional on C's consent. B sues A for not transferring the farm. A may prove the condition as to C's consent and the fact that he does not consent. 7 (h) A agrees in writing to sell B 14 lots of freehold land and make a good title to each of them. Afterwards B con- sents to take one lot though the title is bad. Apart from the Statute of Frauds this agreement might be proved. 8 (i) A sells B a horse, and verbally warrants him quiet in harness. A also gives B a paper in these words: "Bought of A a horse for £7 2s. 6d." B may prove the verbal warranty.9 (j) The question is, whether A gained a settlement by oc- cupying and paying rent for a tenement. The facts of occu- pation and payment of rent may be proved by oral evidence, although the contract is in writing.io PAROL EVIDENCE RULE. In General. It is a general rule that the terms of an instrument can- not be altered or modified by parol evidence, though other evidence may be admitted to complete the same or show its meaning: Arizona: Fidelity Title G. Co. v. Ruby, 16 Ariz. 75, 141 P. 117. Arkansas: Hanger v. Evins & Shinn, 38 Ark. 334; De- laney v. Jackson, 95 Ark. 131, 128 S. W. 859; Frazier v. State Bank, 101 Ark. 135, 141 S. W. 941; Barker v. Lack, 120 Ark. 323, 179 S. W. 493. California: Chapman v. Polack, 70 Cal. 487, 11 P. 764; Schroeder v. Schmidt, 74 Cal. 459, 16 P. 243; Hewitt v. BPyxn v. Campbell, 6 E. & B. 370. 7Wallis v. Llttell, 11 C. B. n. s. 369. t-Goss v. Lord Nugent, 5 B. & Ad. 58, 65. oAllen v. Prink, 4 M. & W. 140. ioR. v. Hull, 7 B. & C. 611. 642 DOCUMENTARY EVIDENCE San Jacinto & P. V. Irr. Dist, 124 Cal. 186, 56 P. 893; Moore v. Trott, 156 Cal. 353, 104 P. 578; In re Los Angeles Trust Co., 158 Cal. 603, 112 P. 56. Colorado: Andrews v. People, 33 Colo. 193, 79 P. 1031; Brown v. Holloway's Estate, 47 Colo. 461, 108 P. 25. Idaho: Whitney v. Dewey, 10 Ida. 633, 80 P. 1117; Allen v. Kitchen, 16 Ida. 133, 100 P. 1052; Newmyer v. Roush, 21 Ida. 106, 120 P. 464. Kansas: Maffet v. Schaar, 89 Kan. 403, 131 P. 589; Hart v. Haynes, 96 Kan. 262, 150 P. 530. Montana: Sanford v. Edwards, 19 Mont. 56, 47 P. 212; Montana Ore Pur. Co. v. Maher, 32 Mont. 480, 81 P. 13; Piper v. Murray, 43 Mont. 230, 115 P. 669. Nebraska: Minneapolis Thresher Mach. Co. v. Otis, 78 Neb. 233, 110 N. W. 550. Nevada: Gage v. Phillips, 21 Nev. 150, 26 P. 60; Burns v. Loftus, 32 Nev. 55, 104 P. 246. New Mexico: Locke v. Murdock, 20 N. M. 540, 151 P. 298. North Dakota: Bank v. Lang, 2 N. D. 66, 49 N. W. 414; Deering & Co. v. Russell, 5 N. D. 319, 65 N. W. 691. Oklahoma: Smith & Co. v. Thesmann, 20 Okl. 133, 93 P. 977; American Trust Co. v. Chitty, 36 Okl. 479, 129 P. 51. Oregon: Hilgar v. Miller, 42 Or. 552, 72 P. 319; Hillyard v. Hewitt, 61 Or. 58, 120 P. 750; Smith v. Bayer, 46 Or. 143, 79 P. 497; Beard v. Royal Neighbors, 60 Or. 41, 118 P. 171. South Dakota: Koester v. Northwestern Port Huron Co., 24 S. D. 546, 124 N. W. 740; Barnes v. Hill City Lumber Co., 34 S. D. 158, 147 N. W. 775. Texas: Laufer v. Powell, 30 Tex. Civ. App. 604, 71 S. W. 550; Murray Co. v. Putman, (Tex. Civ. App.), 130 S. W. 631; Barnes v. Bryce, (Tex. Civ. App.), 140 S. W. 240; First Nat. Bank v. Powell, (Tex. Civ. App.), 149 S. W. 1096; Central Bank & T. Co. v. Ford, (Tex. Civ. App.), 152 S. W. 700; Benton v. Kuykendall, (Tex. Civ. App.), 160 S. W. 438. Utah: Haskins v. Dern, 19 Utah 89, 56 P. 953; Andrus v. Blizzard, 23 Utah 233, 63 P. 888. DOCUMENTARY EVIDENCE 643 Washington: Passow & Sons v. Kirkwood Dist. Co., 54 Wash. 196, 103 P. 34; Spokane Canal Co. v. Coffman, 61 Wash. 357, 112 P. 383. Wyoming: Stickney v. Hughes, 13 Wyo. 257, 79 P. 922. California. Parol evidence is not admissible to show that a deed or mortgage delivered to the grantee was to take effect only upon condition. — Mowry v. Heney, 86 Cal. 471, 25 P. 17. The rule excluding parol evidence tending to vary or contradict a written contract applies only in actions be- tween the parties thereto or their privies. — Massie v. Chatom, 163 Cal. 772, 127 P. 56. North Dakota. Parol evidence is not admissible to show that a deed or mortgage delivered to the grantee was to take effect only upon condition. — First Nat. Bank v. Prior, 10 N. D. 146, 86 N. W. 362; Sargent v. Cooley, 12 N. D. 1, 94 N. W. 576. Texas. Parol evidence is inadmissible to vary the implied contract of indorsement of negotiable paper. — Heiden- heimer v. Blumenkron. 56 Tex. 308; First Nat. Bank v. Powell, (Tex. Civ. App.), 149 S. W. 1096. MATTERS PROVABLE BY PAROL. In General. California. An alleged record offered in evidence may be shown by parol not to be a record. — Dyer v. Brogan, 70 Cal. 136. 11 P. 589. A new parol contract superseding the written one may be shown.— Pearsall v. Henry, 153 Cal. 314, 95 P. 154. Oklahoma. Parol evidence is always admissible to show that the purported contract was not in fact the contract made and entered into by the parties. — Colonial Jewelry Co. v. Jones, 36 Okl. 788, 127 P. 405; American Trust Co. v. Chitty, 36 Okl. 479, 129 P. 51. South Dakota. Unless the plaintiff seeks a reformation of the instrument sued on, he must rely upon it as exe- cuted, as its terms cannot be varied by parol where no reformation is sought.- Castle v. Gleason, 31 S. D. 590, 141 N. W. 516. 644 DOCUMENTARY EVIDENCE Texas. Where an agreed judgment in an action between guardian and ward does not show on its face that it is void, parol evidence is admissible to prove that the ward was not properly represented. — Pearce v. Heyman, (Tex. Civ. App.), 158 S. W. 242. A map which is a land office archive may be shown by parol evidence to be incorrect. — Stevens v. Crosby, (Tex. Civ. App.), 166 S. W. 62. Utah. While a written award cannot be varied by parol evidence, yet the testimony of arbitrators is admissible to show what actually took place during the proceedings in which it was awarded. — Jensen v. Deep Creek Farm & L. S. Co., 27 Utah 66, 74 P. 427. Washington. In a suit between the original parties to a written instrument where the rights of third parties have not intervened, it may be shown by parol evidence that a clause in the instrument was agreed to be nonenforceable. —Young v. Stampfler, 27 Wash. 350, 67 P. 561; Naden v. Christopher, 62 Wash. 413, 113 P. 1116. Writing Incomplete. California. Unless the writing be one which, by legal construction, shows upon its face it was intended to ex- press the whole contract between the parties, parol evi- dence may be admitted to show what the agreement really was.— Krenzberger v. Wingfield, 96 Cal. 251, 31 P. 109; Sivers v. Sivers, 97 Cal. 518, 32 P. 571; Luitweiler Pump- ing Eng. Co. v. Ukiah Water & Imp. Co., 16 Cal. App. 198, 116 P. 707. Kansas. Where a written agreement is incomplete, and it is obvious that it does not embrace the entire contract of the parties, oral testimony may be received to supple- ment and explain what is written. — Shepard v. Haas, 14 Kan. 443; St. L. & W. Ry. Co. v. Maddox, 18 Kan. 546; Peters v. McVey, 59 Kan. 775, 52 P. 896; Millich v. Armour, 60 Kan. 229, 56 P. 1; Heskett v. Border Queen Mill & E. Co., 81 Kan. 356, 105 P. 432; Evans v. McElfresh, 85 Kan. 389, 116 P. 612. Nevada. Where the written contract is evidently incom- plete, parol evidence is admissible to supply the deficien- DOCUMENTARY EVIDENCE 645 cies. — Herring-Hall-Marvin Safe Co. v. Balliet, 38 Nev. 164, 145 P. 941. North Dakota. An application for insurance in which the amount of the policy was left blank to be filled later by agreement of the parties could be explained by parol, where the blank was filled without the knowledge of the applicant.— Mulroy v. Jacobson, 24 N. D. 354, 139 N. W. 697. Texas. Where the writing which is incomplete in itself, but refers to a special contract, the latter may be shown by parol. — State Mutual Life Ins. Co. v. Ballard, (Tex. Civ. App.), 122 S. W. 267. Fraud. Arkansas. The execution of a deed may be shown by parol evidence to have been induced by false representa- tions.— Harrell v. Hill, 19 Ark. 102; Brown v. Le May, 101 Ark. 95, 141 S. W. 759. California. Where an instrument is sought to be avoided for fraud or mistake, parol evidence is admissible to show what the grantor intended to do or convey. — Jersey Farm Co. v. Atlantic Realty Co., 164 Cal. 412, 129 P. 593. Fraud in the procuring of the execution of a written in- strument may be shown by oral testimony. — Maxson v. Llewelyn, 122 Cal. 199, 54 P. 734; Providence Jewelry Co. v. Nagel, 157 Cal. 497, 108 P. 312. Idaho. On direct attack corporate records may be shown to be false by parol evidence. — Just v. Idaho Canal & Imp. Co., 16 Ida. 639, 102 P. 381. Kansas. The rule that parol testimony cannot be used to vary the terms of a written instrument has no application to an issue of fraud in the making or procuring of the contract —Hart v. Haynes, 96 Kan. 262, 150 P. 530. Montana. Fraud in procuring the execution of a written instrument may be shown by oral testimony. — Sathre v. Rolfe, 31 Mont. 85, 77 P. 431; Hillman v. Luzon Cafe Co., 49 Mont. 180, 142 P. 641. Nebraska. Where parol evidence of deceit and fraud would destroy the effect of a writing, it is admissible. — Minneapolis Thresh. Mach. Co. v. Otis, 78 Neb. 233, 110 N. W. 550. 646 DOCUMENTARY EVIDENCE Oklahoma. Fraud in procuring the execution of a written instrument may be shown by oral testimony in avoidance of the same.— Smith & Co. v. Thesmann, 20 Okl. 133, 93 P. 977; Shuler v. Hall, 42 Okl. 325, 141 P. 280. South Dakota. Under the statute (§ 1256) misrepresenta- tions which induced a party to execute a written instru- ment may be shown by oral proof in avoidance of its terms. — Rochford v. Barrett, 22 S. D. 83, 115 N. W. 522; South Dakota Cent. Ry. Co. v. Smith, 22 S. D. 210, 116 N. W. 1120; Rectenbaugh v. Northwestern Port Huron Co., 22 S. D. 410, 118 N. W. 697; DePue v. Mcintosh, 26 S. D. 42, 127 N. W. 532; Sioux Remedy Co. v. Lindgren, 27 S. D. 123, 130 N. W. 49. Texas. In equity, fraud, accident or mistake may be shown by parol evidence to have entered into the making of a written instrument in avoidance of its terms. — Belcher v. Mulhall, 57 Tex. 17; Murray Co. v. Putman, (Tex. Civ. App.), 130 S. W. 631; Benton v. Kuykendall, (Tex. Civ. App.), 160 S. W. 438. To show that a conveyance was not made with fraudu- lent intent, oral testimony is admissible to prove that the land was originally conveyed to the grantor upon a con- dition resting in parol; that such condition had not been performed, and that the re-conveyance was made to, carry out the parol agreement to reconvey upon failure to per- form such condition. — Paris Grocery Co. v. Burks, 56 Tex. Civ. App. 223, 120 S. W. 552. Fraud may be shown by parol evidence to impeach the present validity of an indorsement of negotiable paper. — First Nat. Bank v. Powell, (Tex. Civ. App.), 149 S. W. 1096. Fraud inducing the execution of a written instrument may be shown by parol evidence. — United States Gypsum Co. v. Shields, (Tex. Civ. App.), 106 S. W. 726; Kirby v. Thurmond, (Tex. Civ. App.), 152 S. W. 1099; Common- wealth Bonding & C. Co. v. Bomar, (Tex. Civ. App.), 169 S. W. 1060; Le Master v. Hailey, (Tex. Civ. App.), 176 S. W. 818. Washington. That the execution of a written instrument was induced by fraud may be shown by oral testimony. DOCUMENTARY EVIDENCE 647 —O'Connor v. Lighthizer, 34 Wash. 152, 75 P. 643; Lilien- thal v. Herren, 42 Wash. 209, 84 P. 829; Boynton v. John- son, 68 Wash. 370, 123 P. 522. Mistake. Arkansas. A mutual mistake in the writing may be shown by parol evidence. — Kansas City Southern Ry. Co. v. Smithson, 113 Ark. 305, 168 S. W. 555. North Dakota. Where it appears that a mistake in a writ- ten instrument was mutual, parol evidence is admissible to show the same. — Deering & Co. v. Russell, 5 N. D. 319, 65 N. W. 691. Oklahoma. It may be shown by parol that a wrong name was inserted in a lease, as lessor, by mistake, and who the real party in interest is. — Conger v. Olds, 1 Okl. 232, 32 P. 337. Oregon. An alleged mistake in a deed must be reformed in equity, it cannot be done by oral testimony when the instrument is offered in evidence in an action of ejectment. — Holcomb v. Mooney, 13 Or. 503, 11 P. 274. Bad Faith. Colorado. Parol evidence varying the terms of a written instrument is admissible to show bad faith. — Whitehead v. Linn, 45 Colo. 427, 102 P. 286. Illegality. Utah. Parol evidence is admissible to prove that a deed is void on the ground of public policy. — Bell's Estate, In re, 29 Utah 1, 80 P. 615. Wyoming. Parol evidence is admissible to show that a contract is illegal on the ground of public policy. — Stick- ney v. Hughes, 12 Wyo. 397, 75 P. 945. Consideration. Generally the actual consideration for a writing may be shown by parol evidence: Arkansas: Keathley v. Keathley, 115 Ark. 605, 170 S. W. 564; Mewes v. Home Bank, 116 Ark. 155, 172 S. W. 853; Kilpatrick v. Rowan, 119 Ark. 175, 177 S. W. 893. 648 DOCUMENTARY EVIDENCE California: Field v. Austin, 131 Cal. 379, 63 P. 692; Treat v. Treat, 170 Cal. 329, 150 P. 53. Colorado: Welch v. Brown, 46 Colo. 129, 103 P. 296; Equitable Surety Co. v. Connors, 27 Colo. App. 213, 147 P. 438. Idaho: Boise Valley Const. Co. v. Kroeger, 17 Ida. 384, 105 P. 1070. Kansas: Miller v. Edgerton, 38 Kan. 36, 15 P. 894; Milich v. Armour Packing Co., 60 Kan. 229, 56 P. 1. Montana: Noyes v. Young, 32 Mont. 228, 79 P. 1063. Nebraska: Harman v. Fisher, 90 Neb. 688, 134 N. W. 246; Swanson v. Union Pac. R. Co., 98 Neb. 373, 152 N. W. 744. Nevada: Burns v. Loftus, 32 Nev. 55, 104 P. 246. North Dakota: First State Bank v. Kelly, 30 N. D. 84, 152 N. W. 125. Oklahoma: Perry v. Jones, (Okl.), 150 P. 168. Oregon: Barbre v. Goodale, 28 Or. 465, 43 P. 378; United States Fidelity & G. Co. v. Martin, 77 Or. 369, 149 P. 1023. South Dakota: Miller v. Kennedy, 12 S. D. 478, 81 N. W. 906. Texas: Detering v. Boyles, (Tex. Civ. App.), 155 S. W. 984; Ramsey v. Bird, (Tex. Civ. App.), 170 S. W. 1075. Utah: Miller v. Livingston, 22 Utah 174, 61 P. 569; Hall v. McNally, 23 Utah 606, 65 P. 724. Washington: Don Yook v. Washington Mill Co., 16 Wash. 459, 47 P. 964; Harbican v. Skinner, 83 Wash. 596, 145 P. 582. Arkansas. Whenever in a deed the consideration, or an admission of its receipt, is stated merely as a fact, that part of the deed is received as a receipt would be, and the statement is subject to be varied, modified, and ex- plained; but if the stated consideration is in the nature of a contract, that is, if by it a right is vested, created or extinguished, the terms of the contract thereby evidenced may not be varied by parol proof. — Wallace v. Meeks, 99 Ark. 350, 138 S. W. 638. California. The same rule prevails in California. — Hen- drick v. Crowley, 31 Cal. 472. DOCUMENTARY EVIDENCE 649 Nevada. It may be shown by parol evidence that the con- sideration for a deed was different from that expressed therein.— Lake v. Lake, 18 Nev. 361, 4 P. 711. Oklahoma. Parol evidence is admissible to show that the consideration for a written contract is illegal, or that the contract was made in furtherance of objects forbidden by law.— Howard v. Farrar, 28 Okl. 490, 114 P. 695. Oregon. Where a deed recites a consideration as having been received, it cannot be disputed by oral testimony. — Finlayson v. Finlayson, 17 Or. 347, 21 P. 57. Washington. Where a contract for the sale of lands fixes the consideration, such stipulated terms cannot be varied by parol evidence. — Spokane Canal Co. v. Coffman, 61 Wash. 357, 112 P. 383. Want or Failure of Consideration. Arizona. Between original parties to the writing, want of consideration for a note may be shown by parol. — Fidelity Title G. Co. v. Ruby, 16 Ariz. 75, 141 P. 117. Arkansas. Want or failure or illegality of the considera- tion for a writing may be shown by parol evidence. — Mar- tin v. Tucker, 35 Ark. 279; Taylor v. Purcell, 60 Ark. 606, 31 S. W. 567; Hencke v. Standiford, 66 Ark. 535, 52 S. W. 1; Little v. Arkansas Nat. Bank, 105 Ark. 281, 152 S. W. 281. California. A different or another consideration for a written instrument cannot be shown, but want of consid- eration may be shown by parol. — Pearsall v. Henry, 153 Cal. 314, 95 P. 154; Stanton v. Weldy, 19 Cal. App. 374, 126 P. 175. Colorado. Parol evidence is inadmissible to show that there was no consideration for a release and accord and satisfaction of unliquidated damages. — Harvey v. Denver & R. G. R. Co.. 44 Colo. 258, 99 P. 31. Kansas. Want or failure of consideration for a note may be shown by parol evidence. — Aultman Threshing & E. Co. v. Knoll. 71 Kan. 109, 79 P. 1074. That the execution of a written instrument was induced by fraud may be shown by oral testimony. — State Life 650 DOCUMENTARY EVIDENCE Ins. Co. v. Johnson, 73 Kan. 567, 85 P. 597; Maffet v. Schaar, 89 Kan. 403, 131 P. 589. Nebraska. Want of or illegal consideration for a con- tract may be shown by parol evidence. — Luce v. Foster, 42 Neb. 818, 60 N. W. 1027. Texas. Want of consideration for a writing may be shown by parol evidence. — Central Bank & T. Co. v. Ford, (Tex. Civ. App.), 152 S. W. 700. Washington. Failure of consideration for a written in- strument may be shown by parol evidence. — Johnson County Sav. Bank v. Rapp, 47 Wash. 30, 91 P. 382; Preas v. Vollintine, 53 Wash. 137, 101 P. 706; Wolff v. Love, 78 Wash. 561, 139 P. 597. Delivery. Colorado. The rule that a writing cannot be contradicted, varied or altered by proof of an oral contemporaneous agreement is not infringed by proof of such an agreement, accompanied by satisfactory evidence that the written in- strument was either never delivered, or delivered on a condition which had not been performed, or delivered un- der circumstances which show that the paper, if it be of commercial character, was never intended to be the prom- issory note of the party who executed it. — Denver Brew- ing Co. v. Barets, 9 Colo. App. 341, 48 P. 834; Mosier v. Kershow, 16 Colo. App. 453, 66 P. 449. Parol evidence is admissible to show nondelivery of a negotiable instrument. — Norman v. McCarthj'-, 56 Colo. 290, 138 P. 28. Idaho. Parol evidence is admissible to show delivery. — Whitney v. Dewey, 10 Ida. 633, 80 P. 1117. North Dakota. Parol evidence is admissible to show that a written instrument was never delivered. — Sargent v. Cooley, 12 N. D. 1, 94 N. W. 576. Oregon. It may be shown by parol evidence that an al- leged written instrument offered to prove ah agreement was never delivered for that purpose. — Branson v. Ore- gonian Ry. Co., 11 Or. 161, 2 P. 86. South Dakota. The nondelivery of a written Instrument may be shown by parol evidence. — Koester v. Northwest- ern Port Huron Co., 24 S. D. 546, 124 N. W. 740. DOCUMENTARY EVIDENCE 651 Acceptance. Arkansas. The acceptance of a note by mistake may be shown by parol evidence where it is sought to rescind the contract.— Frazer v. State Bank, 101 Ark. 135, 141 S. W. 941. In avoidance of a note given for premiums on an in- surance policy, it may be shown by parol that the in- sured refused to accept the policy although same was left with him.— Gray v. Blackwood, 112 Ark. 332, 165 S. W. 958. Alterations or Additions. Arkansas. Unauthorized changes or additions to a written contract may be shown by parol to have been made after its execution. — Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586, 94 S. W. 713; Main v. Oliver, 88 Ark. 383, 114 S. W. 917; Brooks Medicine Co. v. Jeffries, 94 Ark. 575, 127 S. W. 960; Keatley v. Holland Banking Co., 112 Ark. 608, 166 S. W. 953. Washington. The alteration of a written contract after its execution may be shown by oral testimony. — Price v. Stanbra, 45 Wash. 143, 88 P. 115. Incapacity To Contract. Arizona. Incapacity to contract because of intoxication may be shown by proof of the condition of the party on days previous to the transaction. — Cole v. Bean, 1 Ariz. 377. 25 P. 538. Effect of Instrument. Nebraska. Though there be no reservation in a deed, the purpose for which it was given may be shown by parol evi- dence, and the entire transaction may be gone into in order to determine the effect of the conveyance. — Collingwood v. Bank, 15 Neb. 121, 17 N. W. 359; Donisthorpe v. Fre- mont, E. & M. V. R. Co., 30 Neb. 142, 46 N. W. 240. Abandonment of Contract. Washington. Parties to a written contract may. by mutual oral agreement, abandon it. — Lamar v. Anderson, 71 Wash. 314. 128 P. 672. 652 DOCUMENTARY EVIDENCE SEPARATE ORAL AGREEMENT. Arkansas. A separate, independent verbal agreement, re- lating to a matter not embraced in the written contract, may be proved by parol testimony. — Ramsay v. Capshaw, 71 Ark. 408, 75 S. W. 479; Burgie v. Bailey, 91 Ark. 383, 121 S. W. 266; Cox v. Smith, 99 Ark. 218, 138 S. W. 978. Parol evidence is admissible to add to a written con- tract some term or provision, where the writing, on ac- count of fraud or mistake, does not contain all of the contract. — Brooks Medicine Co. v. Jeffries, 94 Ark. 575, 127 S. W. 960; Cox v. Smith, 99 Ark. 218, 138 S. W. 978. A collateral parol agreement not contradicting or vary- ing the written contract may be established. — Trumbull v. Harris, 102 Ark. 669, 145 S. W. 547. California. It is competent to prove by oral testimony that growing crops were excepted from the operation of a deed to the land.— Vulicevich v. Skinner, 77 Cal. 240, 19 P. 424. Where the writing is silent as to time of payment, it may be established by parol evidence. — Sivers v. Sivers, 97 Cal. 518, 32 P. 571; Savings Bank v. Asbury, 117 Cal. 96, 48 P. 1081; Wolters v. King, 119 Cal. 172, 51 P. 35. Where a bill of sale covered all the tangible property of a business, it may be shown by parol evidence that the intangible property was also included in the transaction. That the parties intended to, but did not reduce this to writing, was immaterial. — Webber v. Smith, 24 Cal. App. 51, 140 P. 37. Colorado. Where a writing signed by one of the parties only does not purport to be a complete contract, or it is apparent that it is not, and relates to matters not neces- sary to be in writing, parol evidence is permissible to es- tablish so much of the contract as is not reduced to writ- ing.— Mulford v. Torrey Exp. Co., 45 Colo. 81, 100 P. 596. Kansas. Where the written contract is evidently incom- plete, parol testimony is admissible to disclose the whole transaction.— St. L. L. & W. Ry. Co. v. Maddox, 18 Kan. 546; Royer v. Western Silo Co., 92 Kan. 333, 140 P. 872. DOCUMENTARY EVIDENCE 653 It is competent to prove by oral testimony that growing crops were excepted from the operation of a deed to the land.— Mabry v. Harp, 53 Kan. 398, 36 P. 743. An original parol agreement defining the rights of the parties under a written instrument, may be proved. — Trice v. Yoeman, 8 Kan. App. 537, 54 P. 288. That a set-off was to be allowed on a note may be shown by parol evidence, where its allowance was a part of the consideration for the note. — Owensboro Wagon Co. v. Wilson & Co., 79 Kan. 633, 101 P. 4. Whether oral evidence may be allowed to supplement a contractual writing, by supplying a term not therein re- ferred to, depends upon whether the instrument was in- tended to cover that feature of the transaction; hence where an action is brought for the value of services ren- dered under a contract which does not mention the com- pensation therefor, an agreement may be shown that the services were to be rendered gratuitously. See cases cited.— Clark v. Townsend, 96 Kan. 650, 153 P. 555. Montana. Parol evidence may be received of an independ- ent oral agreement not inconsistent with the written con- tract, and in respect of which the latter does not speak, provided such oral agreement is based on some collateral matter and must have operated as an inducement to the complaining party to enter into the agreement, whereas in the absence of it he would not have done so. — Arming- ton v. Stelle, 27 Mont. 13, 69 P. 115; Kelly v. Ellis, 39 Mont. 597, 104 P. 873. Where the written contract necessarily implies that it does not contain the entire agreement, the omitted portion may be established by oral testimony. So where the writ- ten guarantee that a machine would do first class work, "up to claims" and no claims were mentioned, the oral claims were provable by parol. — Hillman v. Luzon Cafe Co., 49 Mont. 180, 142 P. 641. Nebraska. Evidence of a parol agreement either prior to or contemporaneous with the written instrument is admis- sible, when the parol agreement is, as to some matters, collateral to the written contract, or if the parol agree- ment constituted an inducement for the execution of the 654 DOCUMENTARY EVIDENCE writing.— Norman v. Waite, 30 Neb. 302, 46 N. W. 639; Wehnes v. Roberts, 92 Neb. 696, 139 N. W. 212. Where the parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms a part of the considera- tion for a written contract, and where the party executed the written contract upon the faith of the parol contract or representations, the latter may be proved. — Barnett v. Pratt, 37 Neb. 352, 55 N. W. 1050. Parol evidence tending to establish a separate agreement between the parties to a written contract, as to matters upon which such contract is silent, which does not tend to vary or contradict the terms of the writing, is admis- sible.— Huffman v. Ellis, 64 Neb. 623, 90 N. W. 552. If a written memorandum confirmatory of a previous oral agreement does not purport to recite the whole of the lat- ter, oral testimony is admissible to supply omitted cove- nants not inconsistent with the writing. — DeLaval Sepa- rator Co. v. Jelinek, 77 Neb. 192, 109 N. W. 169. That growing crops were excepted from the operation of a deed to the land may be proved by parol. — Cooper v. Kennedy, 86 Neb. 122, 124 N. W. 1131. New Mexico. Oral testimony of a distinct, valid, parol agreement prior to or contemporaneous with the written contract is admissible where it does not vary or contra- dict the writing, and the latter is silent on the subject. Thus where the writing provided for the sale of a busi- ness, the parol agreement of the seller not to engage in such business for a certain time could be proved. See cases cited.— Locke v. Murdoch, 20 N. M. 540, 151 P. 298. North Dakota. If the written contract, construed in view of the circumstances in which, and the purpose for which, it was executed, shows that it was not meant to contain the whole bargain, then parol evidence is admissible to prove a term upon which the writing is silent not incon- sistent with what is written. So, in an action on a writ- ten contract for failure to feed and care for stock, oral proof of the default of the plaintiff to provide buildings in which the stock could be housed, is admissible. — Putnam v. Prouty, 24 N. D. 517, 140 N. W. 93. DOCUMENTARY EVIDENCE 655 Oklahoma. Where, from the writing it is doubtful whether the parties contracted in a representative capacity or as individuals, oral testimony is competent as between the original parties for the purpose of showing their true in- tent in the execution of the instrument. — Janes v. Citi- zens' Bank. 9 Okl. 546, 60 P. 290; Farmers* & M. Bank v. Hoyt, 29 Okl. 772, 120 P. 264; Weagant v. Camden, 37 Okl. 508, 132 P. 487; Cohee v. Turner & Wiggins, 37 Okl. 778, 132 P. 1082. It is competent to prove by oral testimony that growing crops were excepted from the operation of a deed to the land.— Grabow v. McCracken. 23 Okl. 612, 102 P. 84. Though a bill of lading be a complete contract to trans- port freight to the destination, a parol agreement provid- ing for what shall be done with it after reaching the des- tination may be shown by parol. — Atchison, T. & S. F. Ry. Co. v. McCluskey, 30 Okl. 711. 120 P. 985. Where the written contract fails to specify the time within which it is to be performed, the law requires that it be within a reasonable time, and parol evidence is inadmissible to show that the time was otherwise fixed. — Fisher v. Gossett, 36 Okl. 261, 128 P. 293. Oregon. Where the contract is not one required by the statute of frauds to be in writing, the rule that the terms of the writing cannot be varied by parol is not violated by admitting parol evidence to establish the parts of the contract not contained in the writing. — American Contract Co. v. Bullen Bridge Co., 29 Or. 549, 46 P. 138; Williams v. Mt. Hood Ry. & P. Co., 57 Or. 251, 110 P. 490. So where the contract of sale of an automobile was silent on the subject, it could be shown by parol that the pur- chaser was to be instructed how to operate it. — Holmboe v. Morgan. 69 Or. 395, 138 P. 10S4. Where land is conveyed subject to a mortgage the pay- ment of which is not stated in the deed to have been as- sumed by grantee, oral testimony is admissible to estab- lish the fact that the grantor orally promised to pay the grantee the amount of the incumbrance. — Schroeder v. Tillman, 73 Or. 538, 144 P. 751. 656 DOCUMENTARY EVIDENCE South Dakota. Parol evidence is admissible, as between the original parties, when something on the face of the writing creates a doubt as to the parties obligated, and the . recitals of the instrument' are such that the court cannot by inspection determine the question as a matter of law.— Osborne & Co. v. Stringham, 4 S. D. 593, 57 N. W. 766; National Cash Register Co. v. Pfister, 5 S. D. 143, 58 N. W. 270; Miller v. Way, 5 S. D. 468, 59 N. W. 467. Where the parol contemporaneous agreement was the inducing and moving cause of the written contract, or where the parol agreement forms a part of the consider- ation for a written contract, and where the party executed the written contract upon the faith of the parol contract or representations, the latter may be proved. — De Rue v. Mcintosh, 26 S. D. 42, 127 N. W. 532. It is competent to prove by oral testimony that growing crops Were excepted from the operation of a deed to the lands.— Bjornson v. Rostad, 30 S. D. 40, 137 N. W. 567. Texas. When the original contract was complete in itself and was entirely verbal, and a part only thereof is subse- quently reduced to writing, parol testimony as to such part is admissible. — San Jacinto Rice Co. v. Lockett Co., (Tex. Civ. App.), 145 S. W. 1046; American Rio Grande L. & I. Co. v. Mercedes Plantation Co., (Tex. Civ. App.), 155 S. W. 286. Any separate oral agreement as to any matter on which the writing is silent, not inconsistent with its terms, may be shown by parol evidence, if, from the circumstances of the case, the court infers that the parties did not intend the writing to be complete within itself, but shows that some material thing was left out. So where a contract for excavation provided that the earth taken out should be transported elsewhere as designated by the other party, it may be shown that such party orally agreed to furnish cars for the transportation. — -Magnolia Warehouse & S. Co. v. Davis & Blackwell, (Tex. Civ. App.), 153 S. W. 670. If the parol agreement set up relates to a matter beyond the scope of the written contract, it may be proved; and so it has been held that the delivery of a note on condi- DOCUMENTARY EVIDENCE 657 tion, may be shown. — Watson v. Rice, (Tex. Civ. App.), 166 S. W. 106. Utah. Where a note was transferred with an endorsement which it had been agreed should be erased, parol evidence was held admissible to prove such agreement, where the indorsee took the note with knowledge thereof. — Gregg v. Groesbeck. 11 Utah 310, 40 P. 202. Washington. Where a bill of sale of a business is com- plete within itself, that an item was included though not mentioned, may be shown by parol when not inconsistent with the writing. — Welever v. Advance Shingle Co., 34 Wash. 331, 75 P. 863; Potlatch Lumber Co. v. North Coast Prod. Co., 78 Wash. 533, 139 P. 496. Where the whole agreement is not reduced to writing, parol evidence of a collateral contemporaneous agreement covering the omitted part, to be admissible, must not be inconsistent with, or repugnant to the plain intention of the parties, as expressed in or legally implied by the writ- ten instrument.— Smith Sand & G. Co. v. Corbin, 81 Wash. 494, 142 P. 1163 (See cases cited) ; Kleeb v. Mclnturff, 62 Wash. 508, 114 P. 184. Under this rule where the writing specifies no time of performance the legal implication that it shall be a rea- sonable time cannot be varied by parol. — Smith Sand & G. Co. v. Corbin, 81 Wash. 494, 142 P. 1163. Wyoming. Where a bill of sale purports to cover all ani- mals of a certain brand, parol evidence is admissible to show that at the time of the transaction the seller told the purchaser that there were some animals carrying the brand that did not belong to him. — Hecht v. Johnson, 3 Wyo. 277, 21 P. 1080. Constituting Condition Precedent. Arizona. It may be shown that it was orally agreed that a promissory note was intended to be binding only upon the happening of a designated contingency. — Fidelity Title G. Co. v. Ruby, 16 Ariz. 75. 141 P. 117. Arkansas. Parol evidence is admissible to show the con- ditions upon which written instruments are delivered, or 658 DOCUMENTARY EVIDENCE that they are not to take effect until certain contingencies have happened.— Kelly v. Carter, 55 Ark. 112, 17 S. W. 706; State v. Wallis, 57 Ark. 64, 20 S. W. 811; Graham v. Rem- mel, 76 Ark. 140, 88 S. W. 899; Worthen v. Stewart, 116 Ark. 294, 172 S. W. 855; Deming Inv. Co. v. Echols, (Arkv), 183 S. W. 165. An unambiguous conveyance, complete within itself, signed and delivered, cannot be shown by parol to be con- ditional.— Lower v. Hickman, 80 Ark. 505, 97 S. W. 681; Johnson v. Hughes, 83 Ark. 105, 103 S. W. 184; Collins v. So. Brick Co., 92 Ark. 504, 123 S. W. 652; American Sales Book Co. v. Whitaker, 100 Ark. 360, 140 S. W. 132; Good- rum v. Merchants' & P. Bank, 102 Ark. 326, 144 S. W. 198. California. It is competent to show a parol agreement that a note should become binding only upon the per- formance of a condition precedent, and that the condi- tion has been performed. — Howard v. Stratton, 64 Cal. 487, 2 P. 263. Where a deed is lawfully delivered to the grantee it cannot be shown by parol that it was to become effective only upon the happening of a contingency. — Mowry v. Henry, 86 Cal. 471, 25 P. 17; Bias v. Reed, 169 Cal. 33, 145 P. 516. A contemporaneous oral agreement which would con- vert an absolute written instrument into a contingent one cannot be shown. — Lompoc Valley Bank v. Stephenson, 156 Cal. 350. 104 P. 449. Where a certificate of purchase of public lands is as- signed in writing, parol evidence that the assignment was conditional is inadmissible. — Albert v. Albert, 12 Cal. App. 268, 107 P. 156. Colorado. Parol evidence is admissible to show that lia- liability under a written instrument was to attach upon condition,— Bourke v. Van Keuren, 20 Colo. 95, 36 P. 882; Norman v. McCarthy, 56 Colo. 290, 138 P. 28; Sayre v. Leonard, 57 Colo. 116, 140 P. 196; Denver Brewing Co. v. Barets, 9 Colo. App. 341, 48 P. 834; George v. Williams, 27 Colo. App. 400, 149 P. 837. Oral testimony is admissible to show the condition upon which a written agreement was to become effective, if DOCUMENTARY EVIDENCE 659 at all. So in an action on a note it may be shown that the note was only given in order that it might be pledged as collateral until the happening of a contingency and that such contingency had occurred. — Divine v. Western Slope F. G. A., 27 Colo. App. 368, 149 P. 841, and cases cited. Kansas. That a promissory note was delivered condi- tionally may be shown by parol. — White v. Smith, 79 Kan. 96, 98 P. 766. The existence of a parol agreement that a written in- strument should become effective only upon the happen- ing of some future event may be shown. — Bartholomew v. Fell, 92 Kan. 64, 139 P. 1016. Montana. Where it was agreed in writing that collateral had been deposited to secure the payment of a note, and that default in payment authorized the payee to dispose of the collateral, a parol agreement that the collateral should be exhausted before suit upon the note, could not be shown.— Fisher v. Briscoe, 10 Mont. 124, 25 P. 30. Parol evidence of an agreement that the acceptance of a bill of exchange should not be a waiver of a counterclaim which the acceptor held against the drawer, is admissible. — Bohn Manufacturing Co. v. Harrison, 13 Mont. 293, 34 P. 313; Bennett v. Tillmon, 18 Mont. 28, 44 P. 80. Nebraska. A contemporaneous parol agreement that a written instrument shall not be binding under certain con- tingencies may be shown by parol. — Norman v. Waite, 30 Neb. 302. 46 N. W. 639; Davis v. Sterns, 85 Neb. 121, 122 N. W. 672; First Nat. Bank v. Burney, 91 Neb. 269, 136 N. W. 37: Musser v. Musser, 92 Neb. 387, 138 N. W. 599; Exchange Bank v. Clay Center State Bank, 91 Neb. 835, 137 N. W. 845. Parol evidence, the effect of which would be to change a grant in a deed from a full and complete conveyance to one upon which was imposed a servitude, is inadmis- sible.— Mattison v. Chicago, R. I. & P. R. Co., 42 Neb. 545, 60 N. W. 925. North Dakota. It may be established by parol that a writing was delivered conditionally, to take effect only 660 DOCUMENTARY EVIDENCE upon the happening of a certain event, and that the con- dition upon which it was to become operative never oc- curred.— First State Bank v. Kelly, 30 N. D. 84, 152 N. W. 125. Oklahoma. Parol evidence is admissible to prove that the attaching of the obligation of a written instrument was upon condition, and that its obligation never commenced. — Humphrey v. Timken Carriage Co., 12 Okl. 413, 75 P. 528; Gamble v. Riley, 39 Okl. 363, 135 P. 390; Jones v. Citi- zens' State Bank, 39 Okl. 393, 135 P. 373; Adams v. Thur- mond, (Okl.), 149 P. 1141. A parol agreement that the payment of a note shall de- pend upon the happening of a certain event is to be dis- tinguished from such an agreement that it shall not be payable in any event. In the former case such agreement may be proved, but in the latter it cannot.— Colbert v. First Nat. Bank, 38 Okl. 391, 133 P. 206; Adams v. Thur- mond, (Okl.), 149 P. 1141. Oregon. Where a lease of certain premises complete within itself has been properly executed and delivered, it cannot be shown by parol evidence that the execution of the lease was conditioned upon the alteration of a fence so that the tenants' light would not be obscured thereby. —Stoddard v. Nelson, 17 Or. 417, 21 P. 456. Parol evidence is admissible to show the true relations subsisting between the parties to a promissory note where contribution is sought, and that the liability is conditional. —Montgomery v. Page, 29 Or. 320, 44 P. 689. South Dakota. The signing and delivery of a written instrument may be shown by parol to have been condi- tional. — McCormick Harv. Mach. Co. v. Faulkner, 7 S. D. 363, 64 N. W. 163; Manufacturers' Furnishing Co. v. Kre- mer, 7 S. D. 463, 64 N. W. 528. Texas. It cannot be shown by parol that the performance of an absolute and unconditional contract for the sale of land depended upon the approval of the title by a cer- tain attorney.— Whitaker v. Willis, (Tex. Civ. App.), 146 S. W. 1004. DOCUMENTARY EVIDENCE 661 It may be shown by parol testimony that it was agreed that an ordinary promissory note should be payable only upon a contingency. — Watson v. Rice, (Tex. Civ. App.), 149 S. W. 106. But where a note is payable on demand its terms can not be so varied.— Key v. Hickman, (Tex. Civ. App.), 149 S. W. 275. That a bond was signed conditionally may be shown by parol. — Francis v. Cornelius, (Tex. Civ. App.), 173 S. W. 947. A parol agreement that a written instrument should be binding only upon the happening of some future event may be shown by oral testimony, but not where the instru- ment is a deed or trust deed delivered to the grantee. — Far- rar v. Holt, (Tex. Civ. App.), 178 S. W. 618. Utah. It is competent to show a parol agreement that a note should become binding only upon the performance of a condition precedent, and that the condition has been performed.— Clark v. Ducheneau, 26 Utah 97, 72 P. 331; Martineau v. Hanson, (Utah), 155 P. 432. Washington. It is competent to show by parol evidence that a note was to become a binding agreement only upon the happening of a certain contingency, and that such con- tingency has not happened. — Ewell v. Turney, 39 Wash. 615, 81 P. 1047; Seattle Nat. Bank v. Becker, 74 Wash. 431, 133 P. 613; Gwinn v. Ford, 85 Wash. 571, 148 P. 891. That a deed was to become effective only upon a con- dition, cannot be shown by parol. — Sylvester v. State, 46 Wash. 585, 91 P. 15. The contract of accommodation parties to a note rests in parol and may be shown. — Handsaker v. Pedersen, 71 Wash. 218, 128 P. 230. Wyoming. It may be shown by parol that a note was executed and delivered upon condition that it should not be negotiated. — Holdsworth v. Blyth & Fargo Co., 23 Wyo. 52, 146 P. 603. SUBSEQUENT PAROL AGREEMENT. Arkansas. Proof of a subsequent parol agreement chang- ing the terms of a prior written contract is admissible. — 662 DOCUMENTARY EVIDENCE Von Berg v. Goodman, 85 Ark. 605, 109 S. W. 1006; Brickey v. Continental Gin Co., 113 Ark. 15, 166 S. W. 744. California. A subsequent parol agreement may be es- tablished intended to abrogate, and in lieu of the prior written instrument.— Pearsall v. Henry, 153 Cal. 314, 95 P. 154. A subsequent unexecuted parol agreement inconsistent with the terms of the written contract cannot be engrafted upon the latter. — Broads v. Mead, 159 Cal. 765, 116 P. 46. Where a clause in a contract prescribing a method of procedure appears to have been disregarded by the parties, a subsequent parol agreement to follow another method may be shown by oral testimony.— Reed v. McDon- ald, 22 Cal. App. 701, 136 P. 506. A subsequent oral agreement to waive a condition of a written contract may be shown by parol. — Seals v. Davis, 25 Cal. App. 68, 142 P. 905. Colorado. Parol evidence is admissible to establish a sub- sequent oral modification of a written contract. — Hatch v. Fritz, 48 Colo. 530, 111 P. 74; Drescher v. Fulham, 11 Colo. App. 62, 52 P. 685. Montana. Any modification of a written contract, unless executed, must be in writing. An oral unexecuted modifi- cation cannot be shown. — Curtis v. Freeman & Parham, 49 Mont. 140, 140 P. 511. Nebraska. A written contract may be orally proved to have been modified or annulled by a subsequent parol agreement. — Fitzgerald v. Fitzgerald & Mallory Const. Co., 41 Neb. 374, 59 N. W. 838. Nevada. An executed oral agreement made subsequent to the written mortgage providing for the delivery of the mortgaged property to the mortgagee may be shown where the mortgage is silent on the subject.— Douglass v. Thomp- son, 35 Nev. 196, 127 P. 561. North Dakota. An explicit contract with dependent cove- nants to convey lands on one part and to pay on the other, cannot be varied by evidence that it was subsequently modified by parol. — McCulloch v. Bauer, 24 N. D. 109, 139 N. W. 318. DOCUMENTARY EVIDENCE 663 Oklahoma. Parol evidence is admissible to show that the time of payment has been extended by a subsequent oral agreement.— Roe v. Fleming, 32 Okl. 259, 122 P. 496. A written contract of lease of a machine may be shown to have been cancelled by proof that subsequently the lessor told the lessee to return the machine if unsatisfac- tory.— Finola Mfg. Co. v. Paulsen. (Okl.), 151 P. 195. Oregon. Parol evidence is admissible to show that the time of performance of a written contract, within the statute of frauds, has been enlarged by a subsequent oral agreement. — Condon Nat. Bank v. Rogers, 60 Or. 189, 118 P. 846; Scott v. Hubbard, 67 Or. 498, 136 P. 653. A written agreement, except when prohibited by posi- tive law, may be modified or annulled by a subsequent valid oral agreement, which may be shown by parol evi- dence— City Messenger & D. Co. v. Postal Tel. Co., 74 Or. 433, 145 P. 657. A subsequent oral agreement by an indorser to attend to the collection of the note endorsed may be proved by parol.— Moll v. Roth Co., 77 Or. 593, 152 P. 235. Texas. A subsequent parol agreement abrogating the written contract may be shown. — Bradshaw v. Davis, 12 Tex. 354; Lone Star Canal Co. v. Broussard, (Tex. Civ. App.). 176 S. W. 649. Where an action is based upon a written contract and a subsequent oral one, proof of the latter is competent. — Barnard & Moran v. Williams. (Tex. Civ. App.), 166 S. W. 910. A written contract authorizing a broker only to sell lands may be shown to have been modified by parol agree- ment authorizing him to exchange. — Williams v. Phelps, (Tex. Civ. App.), 171 S. W. 1100. Utah. A written contract may be shown to have been varied by a separate subsequent parol agreement. — Pod- lech v. Phelan, 13 Utah 333, 44 P. 838. A written partnership agreement, as between the part- ners may be subsequently modified by parol. — Morgan v. Child, Cole & Co., (Utah), 155 P. 451. 664 DOCUMENTARY EVIDENCE Washington. Where the written insurance policy covering a vessel restricted her to certain waters, subsequent parol permission may be shown to have been given her to go outside the limits without invalidating the insurance. — Norris v. China Traders' Ins. Co., 52 Wash. 554, 100 P. 1025. A subsequent parol agreement fixing the time of com- mencement of the term of a lease may be shown by parol, where the exact date is not fixed by the writing. — Man- veil v. Weaver, 53 Wash. 408, 102 P. 36. Where the written contract fixes no time for perform- ance, the law implies a reasonable time, and evidence of what would be a reasonable time is admissible, but proof of a subsequent verbal agreement to extend the time in- definitely, is inadmissible. — Smith Sand & G. Co. v. Cor- bin, 89 Wash. 43, 154 P. 150. Wyoming. A subsequent parol agreement on good con- sideration may be shown by parol to have been entered into by the parties, where the original writing is ap- parently incomplete. — George v. Emery, 18 Wyo. 352, 107 P. 1. CUSTOM OR USAGE. Arkansas. It is not permissible to prove a custom or usage tending to vary the terms of the written agreement. — Runyan v. Runyan, 101 Ark. 353, 142 S. W. 519; Paepcke- Leicht Lumber Co. v. Talley, 106 Ark. 400, 153 S. W. 833. It was held permissible to show a general custom of a carrier to deliver freight in carloads by spotting the cars on a spur track, though the bill of lading only called for delivery at the station. — Arkansas Midland R. Co. v. Pre- mier Cotton Mills, 109 Ark. 218, 158 S. W. 148. California. Where the method of procedure rests in gen- eral usage and is not provided for in the written contract it may be proved. — Gonyer v. Williams, 168 Cal. 452, 143 P. 736. Proof of custom or usage will not be allowed to vary the terms of a writing. — Holloway v. McNear, 81 Cal. 154, 22 P. 514; Fish v. Correll, 4 Cal. App. 521, 88 P. 489. DOCUMENTARY EVIDENCE 665 Where the written contract is silent upon the subject, parol evidence of the existence of a custom or usage bear- ing upon the omitted part is admissible. — Puritas Laundry Co. v. Green, 15 Cal. App. t>54, 115 P. 660; Corey v. Struve, 16 Cal. App. 310, 116 P. 975. Colorado. Evidence of custom may be resorted to for the purpose of ascertaining the meaning and intent of the parties to a contract where the terms employed are gen- eral.— Heistand v. Bateman, 41 Colo. 20, 91 P. 1111. It is not allowable to prove a custom or usage which will vary the written terms. — First Nat. Bank v. Londonderry Min. Co., 50 Colo. 85, 114 P. 313. Kansas. Testimony may be introduced tending to prove ^a customary method of procedure under a written contract which is silent or ambiguous on the subject. — Smythe v. Parsons, 37 Kan. 79, 14 P. 444. Proof of custom cannot be the means of annexing new terms to a contract. — McSherry v. Blanchfield, 68 Kan. 310, 75 P. 121; Eckhardt v. Taylor, 90 Kan. 698, 136 P. 218; Atkinson v. Kirkpatrick, 90 Kan. 515, 135 P. 579. Montana. Where a writing is silent custom may be proved as to time of payment. — Hayes v. Union Merc. Co., 27 Mont. 264, 70 P. 975. Nebraska. Proof of custom is not admissible where the terms of a written contract are definite. — American B. & L. Ass'n v. Mordock, 39 Neb. 413, 58 N. W. 107. Oklahoma. Where a written instrument is silent on the subject, parol evidence of custom or usage is admissible. —Moore v. Coughlin, 36 Okl. 252, 128 P. 257. Oregon. Proof of custom or usage is not admissible to give an interpretation to a contract inconsistent with its language, but when the writing is silent the custom may be proved. — McClusky v. Klosterman, 20 Or. 108, 25 P. 366; Savage v. Salem Mills Co., 48 Or. 1, 85 P. 69. The terms of a written instrument cannot be varied by proof of custom or usage. — Manerud v. City of Eugene, 62 Or. 196, 124 P. 662; Barnard v. Bunker & Houser, 68 Or. 240, 137 P. 227. 666 DOCUMENTARY EVIDENCE Texas. Where a contract for the transportation of freight provided for its delivery at a certain city, evidence that it was the general custom of carriers to deliver freight of that character at the stockyards in a suburb of such city was admissible. — Houston & T. C. R. Co. v. Hill, (Tex. Civ App.), 128 S. W. 445. When consistent with the terms of a writing, a custom or usage that presumably entered into the contemplation of the contracting parties may be shown. — Standard Paint Co. v. San Antonio Hardware Co., (Tex. Civ. App.), 136 S. W. 1150; Bowles v. Driver, (Tex. Civ. App.), 112 S. W. 440. Proof of a custom that would vary the terms of a writ- ten contract is not admissible. — Rhome Milling Co. v. Cunningham, (Tex. Civ. App.), 171 S. W. 1081. Utah. Parol proof is sometimes competent to annex to a contract a usage, when such usage does not conflict with the express terms of the contract. — Sharp v. Clark, 13 Utah 510, 45 P. 566. Washington. Proof of a custom cannot contradict a writ- ten contract, but may be admitted to explain its meaning. — Bardwell v. Ziegler, 3 Wash. 34, 28 P. 360. LEGAL EFFECT NOT INTENDED. Idaho. Where the writing is a mere informal memoran- dum, manifestly incomplete on its face, not intended to exhibit the whole agreement, but merely to define some of its terms, parol evidence may supply the deficiencies. — Jarrett v. Prosser, 23 Ida. 382, 130 P. 376. Nebraska. Where a memorandum is in terms a confirma- tion of a previous oral agreement, such agreement may be shown by parol. — De Laval Separator Co. v. Jelinek, 77 Neb. 192, 109 N. W. 169. Oregon. Where the agreement rested in parol, that its terms were discussed in letters and telegrams did not ex- clude proof of the agreement by parol evidence. — Mahon v. Rankin, 54 Or. 328, 103 P. 53. A writing drawn up for some other purpose than a final and complete repository of the agreement is not the sub- DOCUMENTARY EVIDENCE 667 ject of the rule excluding parol evidence varying or con- tradicting a written instrument. — Bouchet v. Oregon Motor Car Co., 78 Or. 230, 152 P. 888. Texas. Where a part of the transaction has been em- bodied in a writing intended not to be complete, parol evidence may supply the deficiencies. — Swope v. Liberty County Bank. 52 Tex. Civ. App. 281, 113 S. W. 976. Utah. A mere memorandum of a contract intended to be, but not reduced to writing is not exclusive evidence of such contemplated agreement. — Halverson v. Walker, 38 Utah 264, 112 P. 804. Washington. Where a memorandum agreement shows only the preliminaries of the contract, and is not intended to be complete, the whole transaction may be explained by parol evidence. — Roebling's Sons Co. v. Washington Alaska Bank, 56 Wash. 102, 105 P. 174. TO EXPLAIN LEGAL RELATION. Arizona. Parol evidence is inadmissible to show that a party is liable on a negotiable instrument who does not appear to be so from the instrument itself. — Richards v. Warnekros, 14 Ariz. 488, 131 P. 154. California. Where a bond given in connection with a mortgage, was on its fact the personal obligation of the parties signing it. extrinsic evidence of their official char- acter or of their intentions is inadmissible for the purpose of showing it to be the bond of a corporation. — Richardson v. Scott River \V. & M. Co., 22 Cal. 150. Parol evidence is not admissible on behalf of a third party to prove who are the real parties to a written con- tract.— Ellis v. Crawford, 39 Cal. 523. Parol evidence is not admissible to contradict a deed by showing that the trustee and not the cestui que trust was intended as the beneficiary. — Young America Eng. Co. v. City of Sacramento. 47 Cal. 594. Parol evidence is admissible to show that a writing was signed by an agent of a third party whose name did not appear in the instrument. — Otten v. Spreckles, 24 Cal. App. 251. 141 P. 224. 668 DOCUMENTARY EVIDENCE Colorado. A contract executed by individuals may be shown by parol testimony to be the contract of a corpora- tion and that it is bound thereby. — Williams v. Uncom- pahgre Canal Co., 13 Colo. 469, 22 P. 806. Proof of a parol contract to purchase lands is not ex- cluded by the execution of a deed intended to carry out the contract, and it may be shown by parol evidence that the actual purchaser of the lands was other than the grantee named in the deed. — Davis v. Hopkins, 18 Colo. 153, 32 P. 70. Kansas. Parol testimony is admissible to show that one or both of the contracting parties to a written contract were agents of other persons, and acted as such in mak- ing the contract, so as to give the benefits thereof to, or to charge thereby, an unnamed principal. — Nutt v. Humph- rey, 32 Kan. 100, 3 P. 787. The existence of facts upon which the authority of the officer to execute a deed to a person other than the pur- chaser at a judicial sale, may be shown by parol evidence where the recitals of the instrument do not disclose the facts.— Austin v. Ballard, 84 Kan. 619, 114 P. 1084. Parol testimony is admissible to show that a note is the obligation of a corporation and not of the parties exe- cuting it. — Western Grocery Co. v. Lackman, 75 Kan. 34, 88 P. 527. Nevada. Where there is anything on the face of a note or bill of exchange showing that the party signing it was acting for another, and not for himself, parol testimony may be introduced to bind the principal. — Gillig, Mott & Co. v. Bigler Road Co., 2 Nev. 214. Oklahoma. Parol evidence is admissible to show that the principal is the real party in interest, in a suit by him on a written contract executed by another as his agent, though the agency is not disclosed by the writing. — Ran- kin v. Blaine County Bank, 20 Okl. 68, 93 P. 536. Oregon. It may be shown by parol testimony that a party who executed a written agreement was acting as agent for another in so doing, but the agent does not thus escape liability.— Barbre v. Goodale, 28 Or. 465, 43 P. 378. DOCUMENTARY EVIDENCE 669 Where a written contract purports to be the contract of one, it may be shown by parol that others are also parties to it.— Riddle State Bank v. Link, 78 Or. 498, 153 P. 1192. Such evidence is not excluded by the statute of frauds. — Flegel v. Dowling, 54 Or. 40, 102 P. 178. South Dakota. Evidence, in the absence of fraud, is in- admissible to vary, change or qualify the terms of a writ- ten contract appearing upon its face to be executed by a party as principal, by showing that such party was act- ing as agent of other parties to the contract, as between the parties to the contract. — Black Hills Nat. Bank v. Kellogg, 4 S. D. 312, 56 N. W. 1071. Texas. In a written contract not negotiable it can be shown by parol evidence that, although signed in the name of the agent only, it was executed in the business of the principal, and with intent to bind him. — Butler v. Mer- chant, (Tex. Civ. App.), 27 S. W. 193. That a house standing upon a lot which was conveyed by deed was the property of a stranger to the deed, and that it was not intended to be conveyed, may be shown by oral testimony. — Clayton v. Phillipp, (Tex. Civ. App.), 159 S. W. 117. Washington. It may be shown by parol testimony that a written contract, executed by a party in his own name, was executed in a representative capacity. — Brewster v. Baxter, 2 Wash. 135, 3 P. 844. The legal relations of parties to a suit may be proved by parol testimony, notwithstanding a written contract does not disclose the relationship. — Hull v. Seattle, R. & S. Ry. Co., 60 Wash. 162, 110 P. 804. Wyoming. Where a written authority is given for a cer- tain purpose, it is proper to show by extrinsic evidence that a different authority from another principal was given by parol. — Lonabaugh v. Morrow, 11 Wyo. 17, 70 P. 724. TITLE TO OFFICE. The title of a person who has assumed to act as a de facto officer cannot be attacked by parol and where the matter is not directly in issue. — James v. State, 41 Ark. 670 DOCUMENTARY EVIDENCE 451; Tanner v. State, 116 Ark. 452, 173 S. W. 200; Delphi School Dist. v. Murray, 53 Cal. 29; Willis v. Sproule, 13 Kan. 257; State v. Nield, 4 Kan. App. 626, 45 P. 623; Bree- den v. Martens, 21 S. D. 357, 112 N. W. 960; Biencourt v. Parker, 27 Tex. 558; Stooksberry v. Swann, 12 Tex. Civ. App. 66, 34 S. W. 369. COLLATERAL MATTERS. California. In a prosecution for arson, that the property destroyed carried insurance, and the aggregate amount thereof, may be proved by parol without the production of the insurance policy. — People v. Goldsworthy, 130 Cal. 600, 62 P. 1074. Utah. Parol evidence may be given of the contents of a writing collateral to the issue. — Johnson v. Union Pacific R. Co., 35 Utah 285, 100 P. 390. NOTE XXXII. (To Article 90.) The distinction between this and the following article is, that article 90 defines the cases in which documents are ex- clusive evidence of the transactions which they embody, while article 91 deals with the interpretation of documents by oral evidence. The two subjects are so closely connected together, that they are not usually treated as distinct; but they are so in fact. A and B make a contract of' marine insurance on goods, and reduce it to writing. They verbally agree that the goods are not to be shipped in a particular ship, though the contract makes no such reservation. They leave unnoticed a condition usually understood in the busi- ness of insurance and they make use of a technical expres- sion, the meaning of which is not commonly known. The law does not permit oral evidence to be given of the excep- tion as to the particular ship. It does permit oral evidence to be given to annex the condition; and thus far it decides that for one purpose the document shall, and that for an- other it shall not, be regarded as exclusive evidence of the terms of the actual agreement between the parties. It also allows the technical term to be explained, and in doing so it interprets the meaning of the document itself. The two operations are obviously different, and their proper perform- ance depends upon different principles. The first depends upon the principle that the object of reducing transactions to a written form is to take security against bad faith or bad memory, for which reason a writing is presumed as a DOCUMENTARY EVIDENCE 671 general rule to embody the final and considered determina- tion of the parties to it. The second depends on a considera- tion of the imperfections of language, and of the inadequate manner in which people adjust their words to the facts to which they apply. The rules themselves are not, I think, difficult either to state, to understand, or to remember; but they are by no means easy to apply, inasmuch as from the nature of the case an enormous number of transactions fall close on one side or the other of most of them. Hence the exposition of these rules, and the abridgment of all the illustrations of them which have occurred in practice, occupy a very large space in the different text writers. They will be found in 2 Ph. Ev. 332-424; T. E. ss. 1031-1110; Star. 648-731; Best (very shortly and imperfectly), ss. 226-229; R N. P. (an immense list of cases) 17-35. As to paragraph (4), which is founded on the case of Goss v. Lord Nugent, it is to be observed that the paragraph is purposely so drawn as not to touch the question of the effect of the Statute of Frauds. It was held in effect in Goss v. Lord Nugent that if by reason of the Statute of Frauds the substituted contract could not be enforced, it would not have the effect of waiving part of the original contract; but It seems the better opinion that a verbal rescission of a con- tract good under the Statute of Frauds would be good. See Noble v. Ward, L. R. 2 Ex. 135, and Pollock on Contracts, 411, note (6). A contract by deed can be released only by deed, and this case also would fall within the proviso to paragraph (4). The cases given in the illustrations will be found to mark Sufficiently the various rules stated. As to paragraph (5) a Uction of cases will be found in the notes to Wigglesworth v. Dallison, 1 S. L. C. 598-628, but the con- sideration of them appears to belong rather to mercantile law than to the Law of Evidence. For instance, the question what Btipulations are consistent with, and what are contra- dictory to, the contract formed by subscribing a bill of ex- change, or (lie contract between an insurer and an under- writer, are not questions of the Law of Evidence. 672 DOCUMENTARY EVIDENCE Article 91.* what evidence may be given for the interpretation of documents. (1) Putting a construction upon a document means ascertaining the meaning of the signs or words made upon it, and their relation to facts. (2) In order to ascertain the meaning of the signs and words made upon a document, oral evi- dence may be given of the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local, and. provincial expres- sions, of abbreviations, and of common words which, from the context, appear to have been used in a peculiar sense; (a) but evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used, (b) (3) If the words of a document are so defec- tive or ambiguous as to be unmeaning, no evi- dence can be given to show what the author of the document intended to say. (c) (4) In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may probably have been intended to refer, (d) or which identifies (a) Illustrations (a), (b), (c). (b) Illustration (d); [4 Wigmore Ev„ § 2462]; Keller v. Webb, 125 Mass. 88. (c) Illustrations (e) and (f); [4 Wigmore Ev. ( § 2462]. (d) See all the illustrations; [4 Wigmore Ev., §§ 2461-2467.] *See note at end of article. DOCUMENTARY EVIDENCE 673 any person or thing mentioned in it. (e) Such facts are hereinafter called the circumstances of the case, (f ) (5) If the words of a document have a proper legal meaning, and also a less proper meaning, they must be deemed to have their proper legal meaning, unless such a construction would be un- meaning in reference to the circumstances of the case, in which case they may be interpreted ac- cording to their less proper meaning, (g) (6) If the document has one distinct meaning in reference to the circumstances of the case, it must be construed accordingly, and evidence to show that the author intended to express some other meaning is not admissible, (h) (7) If the document applies in part but not with accuracy to the circumstances of the case, the Court may draw inferences from those cir- cumstances as to the meaning of the document, whether there is more than one, or only one thing or person to whom or to which the inaccurate de- scription may apply. In such cases no evidence can be given of statements made by the author of the document as to his intentions in reference to the matter to which the document relates, though evidence may be given as to his circumstances, (e) Illustration (g). (f) As to proving facts showing the knowledge of the writer, and for an instance of a document which is not admis- sible for that purpose, see Adie v. Clark, L. R. 3 Ch. Div. 134, 142. (g) Illustration (h). (h) Illustration (i); [4 Wigmore Ev„ § 2462]. 674 DOCUMENTARY EVIDENCE and as to his habitual use of language or names for particular persons or things, (i) (8) If the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given both of the cir- cumstances of the case and of statements made by any party to the document as to his intentions in reference to the matter to which the document relates, (j) (9) If the document is of such a nature that the Court will presume that it was executed with any other than its apparent intention, evidence may be given to show that it was in fact executed with its apparent intention, (k) Illustrations. (a) A lease contains a covenant as to "ten thousand" rab- bits. Oral evidence to show that a thousand meant, in rela- tion to rabbits, 1200, is admissible.i (b) A sells to B "1170 bales of gambier." Oral evidence is admissible to show that a "bale" of gambier is a package compressed, and weighing 2 cwt.2 (c) A, a sculptor, leaves to B "all the marble in the yard, the tools in the shop, bankers, mod tools for carving." Evi- dence to show whether "mod" meant models, moulds, or mod- elling-tools, and to show what bankers are, may be given. (d) Evidence may not be given to show that the word "boats," in a policy of insurance, means "boats not slung on the outside of the ship on the quarter."3 (e) A leaves an estate to K, L, M, etc., by a will dated before 1838. Eight years afterwards A declares that by these letters he meant particular persons. Evidence of this declaration is not admissible. Proof that A was in the habit (i) Illustrations (k), (1), (m); [4 Wigmore Ev., § 2466]. (j) Illustrations (n), (o); [4 Wigmore Ev., § 2462]. (k) Illustration (p); [4 Wigmore Ev., § 2466 et seq.]. iSmith v. Wilson, 3 B. & Ad. 728. 2Gorrissen v. Perrin, 2 C. B. n. s. 681. 3Blackett v. Royal Exchange Co., 2 C. & J. 244. DOCUMENTARY EVIDENCE 675 of calling a particular person M would have been admis- sible. 4 (f) A leaves a legacy to . Evidence to show how the blank was intended to be filled is not admissible.5 (g) Property was conveyed in trust in 1704 for the sup- port of "Godly preachers of Christ's holy Gospel." Evidence may be given to show what class of ministers were at the time known by that name.6 (h) A leaves property to his "children." If he has both legitimate and illegitimate children the whole of the prop- erty will go to the legitimate children. If he has only ille- gitimate children, the property may go to them, if he can- not have intended to give it to unborn legitimate children.7 (i) A testator leaves all his estates in the county of Lim- erick and city of Limerick to A. He had no estates in the county of Limerick, but he had estates in the county of Clare, of which the will did not dispose. Evidence cannot be given to show that the words "of Clare" had been erased from the draft by mistake, and so omitted from the will as executed.8 (j) A leaves a legacy to "Mrs. and Miss Bowden." No such persons were living at the time when the legacy was made, but Mrs. Washburne, whose maiden name had been Bowden, was living, and had a daughter, and the testatrix used to call them Bowden. Evidence of these facts was admitted.9 (k) A devises land to John Hiscocks, the eldest son of John Hiscocks. John Hiscocks had two sons, Simon, his eldest, and John, his second son, who, however, was the eldest son by a second marriage. The circumstances of the family, but not the testator's declarations of intention, may be proved in order to show which of the two was intended. io (1) A devises property to Elizabeth, the natural daughter of B. B has a natural son John, and a legitimate daughter Elizabeth. The court may infer from the circumstances under which the natural child was born, and from the tes- tator's relationship to the putative father, that he meant to provide for John.u (m) A leaves a legacy to his niece, Elizabeth Stringer. At the date of the will he had no such niece, but he had a great- great-niece named Elizabeth Jane Stringer. The court may ■iciayton v. Lord Nugent, 1 :s M. & W. 200; see 205-206. sBaylis v. A. <;., L' Atk. 239. •'.Shore v. Wilson, 9 C. & F. 365, 565-566. 7Wig. Ext. Ev., pp. 18, lit, and note of cases. * .Miller v. Travels. 8 Bing. 244. "1,ee v. Pain, 4 Hare. 961-263. lODoe v. Hiscocks, 5 M. & W. 363. llRyall v. Hannam, 10 Beav. 536. 676 DOCUMENTARY EVIDENCE infer from these circumstances that Elizabeth Jane Stringer was intended; but they may not refer to instructions given by the testator to his solicitor, showing that the legacy was meant for a niece, Elizabeth Stringer, who had died before the date of the will, and that it was put into the will by a mistake on the part of the solicitor.12 (n) A devises one house to George Gord, the son of George Gord, another to George Gord the son of John Gord, and a third to George Gord the son of Gord. Evidence both of circumstances and of the testator's statements of intention may be given to show which of the two George Gords he meant. 13 (o) A appointed "Percival of Brighton, Esquire, the father," one of his executors. Evidence of surrounding cir- cumstances may be given to show who was meant, and (probably) evidence of statements of intention. 14 (p) A leaves two legacies of the same amount to B, as- signing the same motive for each legacy, one being given in his will, the other in a codicil. The court presumes that they are not meant to be cumulative, but the legatee may show, either by proof of surrounding circumstances, or of declarations by the testator, that they were.is INTERPRETATION OF DOCUMENTS. If a contract is not all in writing and the written por- tion is vague, oral testimony is admissible to determine what the contract is.— Peters v. McVey, 59 Kan. 775, 52 P. 896. MEANING OF WORDS OR TERMS. Arkansas. The meaning of the term "wholesale cost" is not free from obscurity, and is to some extent ambiguous, making it necessary to look to the surrounding circum- stances to determine what the parties really meant — Finn v. Culberhouse, 105 Ark. 197, 150 S. W. 698. i2Stringer v. Gardiner, 27 Beav. 35; 4 De G. & J. 468. i3Doe v. Needs, 2 M. & W. 129. i4ln the goods of De Rosaz, L. R. 2 P. D. 66 i5Per Leach, V. C., in Hurst v. Leach, 5 Madd. 351, 360-361. The rule in this case was vindicated, and a number of other cases, both before and after it, were elaborately cons.dered by Lord St. Leonards, when chancellor of Ireland, in Hall v. Hill, 1 Dru. & War. 94, 111-133. See, too, Jenner v. Hinch, L. R. 5 Prob. Div. 106. DOCUMENTARY EVIDENCE 677 Extrinsic evidence is generally admissible in the inter- pretation of wills, not to show what the testator meant as distinguished from what his words express, but for the purpose of showing the meaning of the words used. —Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176. California. When the court cannot arrive at a just deter- mination of the meaning of the language and arbitrary or trade signs used in the writing, parol evidence is ad- missible to aid the court in construing the contract. — Berry v. Kowalsky, 95 Cal. 134, 30 P. 202. The subject-matter may be explained: As "Morrell Ranch," includes more than one ranch. — Morrell v. San Tomas D. & P. Co., 13 Cal. App. 305, 109 P. 632; "Winter months" may mean three different periods of the year. — Whitney v. Aronson, 21 Cal. App. 9, 130 P. 700; "Ready for occupancy," relating to the completion of a building. —Morse v. Tochterman. 21 Cal. App. 726, 132 P. 1055. Colorado. When a term or phrase read in connection with the context creates an ambiguity it may be explained by oral testimony: As "heart of yellow pine." — San Miguel Consol. G. M. Co. v. Stubbs, 39 Colo. 359, 90 P. 842; that property "in yard" was covered by an insurance policy. — Messenger v. German-American Ins. Co., 47 Colo. 448, 107 P. 643. Kansas. Where a term used in a writing appears to have a meaning in connection with the business different from t lie ordinary meaning, evidence of the meaning given by usage of the trade or business, is admissible. — Seymour v. Armstrong. 62 Kan. 720, 64 P. 612; McGrath v. Crouse, 6 Kan App. 507, 50 P. 969; As "Outcault service de luxe." — OUtcaull Advertising Co. v. Waltner Merc. Co., 96 Kan. 6S9, 153 P. 518. The word "taxes" has two well recognized meanings, one inclusive and the other exclusive of special assess- ments for local improvements. Where the word is used in a written instrument, which meaning is intended, must be determined from th<> writing.— Chicago G. W. Ry. Co. v. Kansas City Northwestern R. Co.. 75 Kan. 167, 88 P. 10S5. Oklahoma. In an action on a written contract providing for the drilling of a well to a certain depth or to "the 678 DOCUMENTARY EVIDENCE Mississippi lime" parol evidence was held admissible to explain what was meant by the term. — Barricklow v. Boice, (Old.), 150 P. 1094. Oregon. When the meaning of the words used in a writ- ing are doubtful or ambiguous, or of technical import as applied to the subject-matter, extrinsic proof is admissible to ascertain the intention of the parties, and even to show that ordinarily unambiguous terms were not used in their usual signification, when this assumption is justified by the context. — McClusky v. Klosterman, 20 Or. 108, 25 P. 366. The expression "merchantable lumber mill run" may be explained by parol evidence de hors the contract. — Barnes v. Leidigh, 46 Or. 43, 79 P. 51. South Dakota. Where a contract for digging a well pro- vided for a flowing well but did not specify the amount of water to be discharged from the well, parol evidence was held admissible to determine what meaning the parties intended to give the term. — De Rue v. Mcintosh, 26 S. D. 42, 127 N. W. 532. The words "accepted mortgage" when used in a con- tract may be explained by oral testimony. — Smith v. John- son, 30 S. D. 200, 138 N. W. 18. Texas. Where the writing as a whole presents uncer- tainty regarding particular matters, parol evidence is ad- missible to show the sense and meaning in which the lan- guage employed by the parties was used. — Generes v. Se- curity Life Ins. Co.. (Tex. Civ. App.), 163 S. W. 386; First State Bank v. Power, (Tex. Civ. App.), 166 S. W. 382. Utah. Where the use of the premises by the lessee was restricted by the lease "for lodge purpose" or "lodge use," it was held permissible to prove a local usage or cus- tom prevalent among lodges and fraternal organizations to occasionally use lodge rooms for dancing and other social entertainments for members and their friends. — O'Neill v. Ogden Aerie, No. 118, 32 Utah 162, 89 P. 464. Washington. The terms "busy season" and "dull season," may be explained by parol. — Schultz v. Simmons Fur Co., 46 Wash. 555, 90 P. 917; "My entire catch of fish."— Perks DOCUMENTARY EVIDENCE 679 v. Elmore, 59 Wash. 584, 110 P. 381; "Workmanlike man- ner" when applied to constructive work. — Armstrong v. Wheeler, 86 Wash. 251, 150 P. 5. Literal Meaning. Utah. The ordinary meaning of certain language used in a writing must, in some instances be enlarged, and in others restricted, so as to make the contract when consid- ered as a whole conform to the real and manifest inten- tion of the parties, notwithstanding the literal meaning of a word, phrase, or clause, when considered by itself, would be given a different meaning. — Hilton v. Thatcher, 31 Utah 370, S8 P. 20; Daly v. Old, 35 Utah 74, 99 P. 460. Terms of Science, Art, and Trade. Arkansas. It may be shown by parol evidence that words or terms were used in a writing in a technical sense, and the true meaning thus disclosed. — Taylor v. Union Saw Mill Co., 105 Ark. 518, 152 S. W. 150. California. It is not necessary, that the contract should expressly indicate a local, technical, or peculiar significa- tion, but it may be shown by parol evidence that the lan- guage is so used, and when so used its meaning may be explained.— Higgins v. California P. Co., 120 Cal. 631, 52 P. 1080. The meaning of technical or trade terms may be ex- plained by parol evidence: As "bayo," a variety of beans -Gardiner v. McDonogh, 147 Cal. 313, SI P. 964; "Slightly processed," a condition of fruit. — Scudders-Gale Grocery Co. v. Gregory Fruit Co., 9 Cal. App. 553, 99 P. 97S. Kansas. The meaning of language used by persons en- gaged In a particular business and understood by such persons but unintelligible to ordinary persons may be explained by parol evidence. — Western Union Tel. Co. v. Collins. 45 Kan. 88, 25 P. 187. Montana. Where the terms used in a writing have a technical or peculiar signification, parol testimony may explain their meaning. — Newell v. Nicholson, 17 Mont. 43 P. 180; Cambers v. Lowry, 21 Mont 17s. 5 I P. 816. 680 DOCUMENTARY EVIDENCE Oregon. If in a contract technical words or terms of art or local phrases not in common use are introduced, or if it is uncertain what person or what thing is referred to, oral evidence may be introduced to explain the lan- guage used, but when the writing contains no technical terms, the construction becomes a matter of law for the court.— Henry v. Harker, 61 Or. 276, 122 P. 298. Texas. Parol evidence is admissible to aid in the inter- pretation of a contract in accordance with the recognized meaning of any word or term therein as used in any art, science, or the trade or particular business out of which it arises. — Southern Gas & G. Eng. Co. v. Adams & Peters, (Tex. Civ. App.), 169 S. W. 1143. Defective and Unmeaning Expressions. Arkansas. Sometimes evidence aliunde is admissible to aid the description of property in tax proceedings, but not where the description is incorrect and misleading and the designation of the property cannot be made to fit its cor- rect location. — Boswell v. Jordan. 112 Ark. 159, 165 S. W. 295. Kansas. Where the description in a tax deed is so indef- inite that the lands cannot be identified, it is void and can- not be aided by parol evidence. — Townsend v. Mallory, 94 Kan. 297, 146 P. 318. North Dakota. Where an uncertainty exists arising from defective, obscure, or insensible language used, as to the intention of the parties to the writing, the ambiguity can- not be explained by parol evidence, but where the doubt is not as to the intention, but as to the object to which the intention applies, such evidence is admissible to dispel the doubt.— Harney v. Wirtz, 30 N. D. 292, 152 N. W. 803. Legal Meaning and Effect. California. A writing should not be so construed as to lead to an absurdity, or as to render it invalid, where by giving to the words used a less legal meaning it is sus- ceptible of a construction that will render it valid, or will result in effectuating the manifest intention of the parties. — Belden v. Farmers' & M. Bank, 16 Cal. App. 452, 118 P. 449. DOCUMENTARY EVIDENCE 681 Texas. Where an ambiguity appears in a writing, it is permissible to show by oral testimony what legal effect the parties intended the instrument should have, even though such effect be different from that which would be given it by the court, unaided by such testimony. — Rig- gins v. Post, (Tex. Civ. App.), 172 S. W. 210. AMBIGUITIES. California. "About" and "more or less," when found in writings, introduce no ambiguity unless otherwise ap- parent from the context. — Peterson v. Chaix, 5 Cal. App. 525, 90 P. 948. Kansas. Where, by giving the language of a writing its ordinary meaning, it is found ambiguous and susceptible of two meanings, all the circumstances under which it was made should be considered in determining which meaning was intended.— Chanute Brick & T. Co. v. Gas Belt Fuel Co., 82 Kan. 752, 109 P. 398. Montana. Where a contract is ambiguous, its true mean- ing may be disclosed by evidence aliunde. — Butte Water Co. v. City of Butte. 48 Mont. 386, 138 P. 195. Utah. If the terms of a contract are ambiguous or un- certain, parol evidence is admissible to disclose the true intention of the parties. — Burt v. Stringfellow, 45 Utah 207. 143 P. 234. Washington. The terms "busy season" and "dull season" are ambiguous to those unacquainted with the fur trade and oral testimony is proper to explain them when used in a written contract with reference to that trade. — Scultz v. Simmons Fur Co., 46 Wash. 555, 90 P. 917. Patent Ambiguity. California. A patent ambiguity in the description of an intended assessment district may not be removed by parol evidence. — Walker v. City of Los Angeles, 23 Cal. App. 634. 139 P. 89. Kansas. Where an ambiguity in the description of prop- erty devised by will can be eliminated by consideration of matters appearing on the face of the instrument, leav- ing a description which although not absolutely certain 682 DOCUMENTARY EVIDENCE in itself points out how the property can be ascertained, parol evidence is proper to aid the construction. — Cum- mins v. Riordon, 84 Kan. 791, 115 P. 568. Oklahoma.' Where there is anything on the face of a written instrument which suggests a doubt or ambiguity, parol testimony is competent as between the original parties, for the purpose of showing their true intent. — Cohee v. Turner & W., 37 Old. 778, 132 P. 1032; Weagant v. Camden, 37 Okl. 508, 132 P. 487. Texas. If a writing does not evidence a contract without the aid of parol evidence, it cannot be enforced, since a patent ambiguity cannot be aided by oral evidence. — Morris v. Bank, 67 Tex. 602, 4 S. W. 246; State v. Racine Sattley Co., (Tex. Civ. App.), 134 S. W. 400. Latent Ambiguity. Arkansas. Where the contract contains words of latent amTTiguity, or where technical terms are used, or terms which, by custom or usage, are used in a sense other than the ordinary meaning of the words, oral testimony is ad- missible to explain the meaning of the terms or words used.— Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258; Paep- cke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S. W. 833; Davis v. Martin Stave Co., 113 Ark. 325, 168 S. W. 553; Wilkes v. Stacy, 113 Ark. 556, 169 S. W. 796. Nebraska. A latent ambiguity may be explained by parol evidence.— Myers v. Persson, 94 Neb. 467, 143 N. W. 447. New Mexico. A latent ambiguity in a deed is subject to explanation by parol evidence, and all the circumstances attending the parties at the date of the transaction may be properly considered. — Gentile v. Crossan, 7 N. M. 589, 38 P. 247. Texas. When the uncertainty does not appear upon the face of a deed, but arises from extraneous facts, parol evi- dence is admissible to explain or remove it. — Young v. Gharis, (Tex. Civ. App), 170 S. W. 796. Washington. Where there is no ambiguity in the deed itself, but arises outside of it, parol evidence is admissible to explain it; hence where the words "lot 6" were em- ployed it was held proper to show that it was the inten- DOCUMENTARY EVIDENCE 683 tion to convey a piece of land adjoining lot 6, and which it was supposed was embraced in the description "lot 6." —Newman v. Buzard, 24 Wash. 225, 64 P. 139. Unambiguous Expressions. Arkansas. The court can neither eliminate nor supply nor rearrange the words and sentences in an unambiguous contract, but must construe it as the parties have made it.— Clouston v. Maingault, 105 Ark. 213, 150 S. W. 858. A deed conveying "all the pine and oak timber ten inches and up" cannot be varied by parol testimony to show that it did not include so-called old field pine, that is, pine growing on land that has once been farmed. — Herin v. Union Saw Mill Co., 105 Ark. 455, 151 S. W. 1007. California. Words introducing no ambiguity cannot be varied by parol: As "passenger elevator" and "freight elevator." in an insurance policy. — Wilmarth v. Pacific Mut. Lite Ins. Co., 168 Cal. 536, 143 P. 780; "About" and "more or less."— Peterson v. Chaix, 5 Cal. App. 525, 90 P. 948; "Grade."— Hill v. Clark, 7 Cal. App. 609, 95 P. 382. Kansas. Where the document is plain and distinct in its terms, it cannot be varied by parol. — Barrett v. Kansas & T. Coal Co., 70 Kan. 649, 79 P. 150. Texas. Parol evidence is not admissible to show that the parties to a contract used language in a sense different from its ordinary meaning. — Morrison v. Hazzard, 99 Tex. 583, 92 S. W. 33; Bergman Prod. Co. v. Brown, (Tex. Civ. App.), 156 S. W. 1102; O'Connor v. Camp, (Tex. Civ. App.), 158 S. W. 203. Washington. If a term in a writing is equivocal or tech- nical, oral proof may be resorted to to define it, but "one half" is a quantitative term and cannot be shown to mean other than one of two equal parts into which anything may be divided. — Owen v. Henderson. 16 WaBh. 39, :'.7 P. 215; Robinson v. Taylor, 68 Wash. 351, 123 P. 444. Two Consistent Interpretations. Arizona. A writing which is susceptible of two consistent interpretations may be explained by oral testimony.— Prin- gle v. King. 9 Ariz. 76. 78 P. 367. 684 DOCUMENTARY EVIDENCE California. Parol evidence is admissible to explain the terms of a writing the language of which is susceptible of either one of two interpretations, each of which would in no manner or degree do violence to the usual and ordi- nary import of the language used. — Higgin's v. California Petroleum Co., 120 Cal. 629, 52 P. 1080; Millet v. Taylor, 26 Cal. App. 161, 146 P. 42. Where a legatee was designated as the "The Woman's Christian Temperance Union of Los Angeles" and no such corporation existed, but there were corporations named "The Los Angeles Woman's Christian Temperance Union" and "The Woman's Christian Temperance Union of South- ern California" and subsequently another incorporated named "The Woman's Christian Temperance Union Fed- eration of Los Angeles," each of which claimed the legacy, parol testimony of the scrivener who drew the will as to what the testator told him at the time with respect to who the legatee was, was admissible under section 1340 Civil Code.— Little's Estate, In re, 170 Cal. 52, 148 P. 194. Colorado. Where a deed contains two descriptions of the land conveyed, parol evidence is admissible to show that one of them applies to land owned by the grantor, and he will be held to have conveyed that parcel. — Derham V. Hill, 57 Colo. 345, 142 P. 181. Parol evidence is admissible to show that two different descriptions of land conveyed by deed applied to the same property, and that it was as well known by one as by the other— Sullivan v. Collins, 20 Colo. 528, 39 P. 334; State Savings & T. Co. v. Matz, 26 Colo. App. 511, 143 P. 1039. Kansas. Where a tax deed described the land as in mower's Addition," and it appears that there is more Ih n one such addition, oral testimony is admissible to show that to only one of them would the description apply, and Hie deed is good. — Knote v. Caldwell, 43 Kan. 464, 23 P. 6.5. N.w i,!t.xico. Where a writing is susceptible of more than one in erpretation, parol evidence of the circumstances under which it was executed is admissible in aid of its construction, though the result of such evidence may be DOCUMENTARY EVIDENCE 685 to contradict the usual meaning of the terms and phrases used in the writing.— Schwentker v. Hubbs, 21 N. M. 188, 153 P. 68. Oklahoma. Where it is doubtful whether the signers of a writing intended to obligate themselves individually or the corporation which they represented, oral testimony is admissible to disclose their object. — Denman v. Bren- namen, (Okl.), 149 P. 1105. Utah. Whenever the terms of a written instrument are susceptible of more than one interpretation, or a latent ambiguity arises, or the extent and object of the instru- ment cannot be ascertained from the language employed, parol evidence is admissible to show the sense which the contracting parties, attached to the terms or language em- ployed; and for this purpose the acts and conversations of the parties, at or about and subsequent to the time of the transaction, relating to the subject-matter, constitute proper evidence. — Brown v. Markland, 16 Utah 360, 52 P. 597; Fayter v. North, 30 Utah 156, 83 P. 742. RELATION OF WORDS TO FACTS. Arkansas. The statements made by a party at the time of the execution of the contract may be testified to in order to explain an indefinite term used in the writing. — Arkansas Retail Credit Men's Ass'n v. Lester, (Ark.), 126 S. W. 712. A latent ambiguity in the description of land conveyed by deed may be explained by parol evidence. — Scott v. Dunckel Box & L. Co., 106 Ark. 83, 152 S. W. 1025. California. Parol evidence is admissible to show all the facts and circumstances attending the transaction and to identify the subject-matter, where the writing is ambig- uous.— Preble v. Abrahams, 88 Cal. 245, 26 P. 99; First Nat. Bank v. Ruddock Co., 158 Cal. 334, 111 P. 86; Whit- ney v. Aronson, 21 Cal. App. 9, 130 P. 700. It is only in cases where, upon the face of the instru- ment itself, there is a doubt as to the intention of the con- tracting parties that oral testimony is admissible to dispel that doubt.— Harrison v. McCormick, 89 Cal. 327, 26 P. 830; United Iron Works v. Outer Harbor Dock & W. Co., 168 686 DOCUMENTARY EVIDENCE Cal. 81, 141 P. 917; Morse v. Tochterman, 21 Cal. App. 726, 132 P. 1055. Colorado. Though mere declarations of parties as to the meaning or application of the descriptive part of a deed may not be admissible to explain ambiguous or doubtful words therein contained, nevertheless collateral facts and circumstances, established by parol evidence, are often admissible for that purpose.— Cullacott v. Mining Co., 8 Colo. 179, 6 P. 211; Kretschmer v. Hard, 18 Colo. 223, 32 P. 418. Parol evidence is admissible for the purpose of showing that a description used in a conveyance was commonly understood in the vicinity, and that it clearly designates the property, hence it may be shown that both of two different descriptions apply to the same property and that it is as well known by one as by the other. — Sullivan v. Collins, 20 Colo. 528, 39 P. 334; State Savings & T. Co. v. Matz, 26 Colo. App. 511, 143 P. 1039. Where in a deed two descriptions intended to apply to the same land are not reconcilable, evidence of extrinsic facts may be admitted to show the intention of the parties. — Derham v. Hill, 57 Colo. 345, 142 P. 181. Where the writing on its face is uncertain, parol evi- dence is admissible to show the real intent of the parties. —New England Elect. Co. v. Shook, 27 Colo. App. 30, 145 P. 1002. EXTRINSIC FACTS AND CIRCUMSTANCES. Nebraska. Where a scrivener made a mistake in draw- ing a will, evidence of it may be given and that it was induced by an oversight of the testator.— Pemberton v. Perrin, 94 Neb. 718, 144 N. W. 164. Oregon. Though mere declarations of parties as to the meaning or application of the descriptive part of a deed may not be admissible to explain ambiguous or doubtful words therein contained, nevertheless collateral facts and circumstances, established by parol evidence, are often admissible for that purpose. — Hicklin v. McClear, 18 Or. 126, 22 P. 1057. DOCUMENTARY EVIDENCE 687 South Dakota. Resort may be had to conversations show- ing the intent and understanding of the parties, together with surrounding circumstances existing at the time the identity. — Dorr v. School Dist., 40 Ark. 237; Fordyce Lum- contract was entered into to explain the intent of the parties where it is not clear and cannot be ascertained with reasonable certainty by a construction of the lan- guage used.— Miller v. Way, 5 S. D. 468, 59 N. W. 467; Small v. Elliott, 12 S. D. 570, 82 N. W. 92; Grimsrud Shoe Co. v. Jackson. 22 S. D. 114, 115 N. W. 656; Smith v. Johnson, 30 S. D. 200, 138 N. W. 18; Korte v. O'Neill, 34 S. D. 241, 148 N. W. 12. Utah. Circumstances surrounding the execution of an ambiguous contract may be shown in order to arrive at the intent of the parties. — Halverson v. Walker, 38 Utah 264, 112 P. 804. When necessary, it may properly be inferred from the express provisions of a written contract that there were other provisions to which they would apply not contained in the writing, and evidence aliunde is admissible to define them.— Burt v. Stringfellow, 45 Utah 207, 143 P. 234. Washington. Parol testimony is admissible to show the circumstances under which a deed was made, to define technical terms, or to explain latent ambiguities. — String- felder v. Hall, 21 Wash. 371, 58 P. 250; Brown v. City of Bremerton, 69 Wash. 474, 125 P. 785. IDENTIFICATION OF SUBJECT-MATTER. Arkansas. Resort may be had to extrinsic evidence in order to fit a description to the land conveyed, but the descriptive words in the deed must furnish the key to the ber Co. v. Wallace, 85 Ark. 1, 107 S. W. 160; Paragould v. Lawson, 88 Ark. 478. 115 S. W. 379; Colonial & United States Mortgage Co. v. Lee, 95 Ark. 253, 129 S. W. 84. Idaho. Oral testimony is admissible for the purpose of identifying the subject-matter of a written contract where the same is indefinite. — Sprongbcrg v. First Nat. Bank. 15 Ida. 671, 99 P. 712; Barnett v. Hagan. 18 Ida. 104, 108 P. 743. 688 DOCUMENTARY EVIDENCE Kansas. Parol evidence is admissible to show all the facts and circumstances attending the transaction and to identify the subject-matter, where the writing is ambiguous. — Hollis v. Burgess, 37 Kan. 487, 15 P. 536. Where the description of the property conveyed by deed is so indefinite that it cannot be located precisely, parol evidence is properly admitted to show what property was intended to be conveyed by the deed. See cases cited. — Riley v. Foster, 95 Kan. 213, 148 P. 246. Texas. Where the description of land conveyed by deed is imperfect, parol testimony may be resorted to for the purpose of identifying the land conveyed. — Willson v. Baker, 71 Tex. 748, 9 S. W. 867; Wilkerson v. Ward, (Tex. Civ. App.), 137 S. W. 158. Where a deed does not identify with certainty the land conveyed, it may be identified by parol. — Brown v. Foster Lumber Co., (Tex. Civ. App.), 178 S. W. 787. LAWFUL OR UNLAWFUL CONSTRUCTION. Oregon. Where a contract is fairly open to two construc- tions, by one of which it would be lawful, and the other unlawful, the former must be adopted. — North Pacific Lumber Co. v. Spore, 44 Or. 462, 75 P. 890; Keady v. Uni- ted Rys. Co., 57 Or. 325, 108 P. 197. Intention of Party. Arizona. Resort cannot be had to extrinsic evidence to show the intention of a testator. — La Tourette v. La Tou- rette, 15 Ariz. 200, 137 P. 426. Arkansas. Parol testimony whether or not a legacy or devise was intended to forgive a debt from the legatee or devisee is admissible. — Bromley v. Atwood, 79 Ark. 357, 96 S. W. 356. Extrinsic evidence is not admissible to prove an inten- tion of a testator in regard to the disposition of his prop- erty not expressed in the will, but such evidence is proper for the purpose of identifying the beneficiary, where there is uncertainty or ambiguity in the designation. — McDon- ald v. Shaw, 81 Ark. 235, 98 S. W. 952; Duensing v. Duen- sing, 112 Ark. 362, 165 S. W. 956. DOCUMENTARY EVIDENCE 689 While evidence may be received to explain any ambig- uity in the designation of a beneficiary under a will, yet neither the scrivener or anyone else can be permitted to testify that the testator meant or intended any disposi- tion of his property not expressed in the will. — Longer v. Beakley, 106 Ark. 219, 153 S. W. 811; Wilson v. Storthz. 117 Ark. 418, 175 S. W. 45. California. Where a deed is deposited in escrow with written instructions as to its delivery, such writing does not exclude parol testimony as to the intentions of the grantor.— Ruiz v. Dow, 113 Cal. 490, 45 P. 867. Nebraska. Where a testator bequeathed property to his nephew, giving his name and place of residence, parol evi- dence was held admissible to show that the testator had no nephew residing at such place by the name given, and that he had but one nephew residing there, whose name was quite similar to the one given, and it was held that he was the intended beneficiary. — Pemberton v. Perrin. 94 Neb. 718, 144 N. W. 164. New Mexico. Where a contract as a whole discloses a given intention, if certain words or clauses taken literally would defeat the intention, it will be considered, if pos- sible, so as to be consistent with the general intention. —Colorado Tel. Co. v. Fields. 15 N. M. 431. 110 P. 571. NOTE XXXIII. (To Article 91.) Perhaps the subject-matter of this article does not fall strictly within the Law of Evidence, but it is generally con- sidered to do so; and as it has always been treated as a branch of the subject, I have thought it best to deal with it. The general authorities for the propositions in the text are the same as those specified in the last note; but the great authority on the subject is the work of Vice-Chancellor Wigram on Extrinsic Evidence. Article 91, indeed, will be found, on examination, to differ from the six propositions of Vice-Chancellor Wigram only in its arrangement and form of expression, and in the fact that it is not restricted to wills. It will I think, be found, on examination, that every case cited by the Vice-Chancellor might be used as an illus- tration of one or the other of the propositions contained in it. It is difficult to justify the line drawn between the rule as to cases in which evidence of expressions of intention 690 DOCUMENTARY EVIDENCE is admitted and cases in which it is rejected (paragraph 7, illustrations (k), (1), and paragraph 8, illustration (m)). "When placed side by side, such cases as Doe v. Hiscocks (illustration k) and Doe v. Needs (illustration m) produce a singular effect. The vagueness of the distinction between them is indicated by the case of Charter v. Charter, L. R. 2 P. & D. 315. In this case the testator Porster Charter appointed "my son Forster Charter" his executor. He had two sons, William Porster Charter and Charles Charter, and many circumstances pointed to the conclusion that the per- son whom the testator wished to be his executor was Charles Charter. Lord Penzance not only admitted evidence of all the circumstances of the case, but expressed an opinion (p. 319) that, if it were necessary, evidence of declarations of intention might be admitted under the rule laid down by Lord Abinger in Hiscocks v. Hiscocks, because part of the language employed ("my son Charter") applied cor- rectly to each son, and the remainder, "Forster," to neither. This mode of construing the rule would admit evidence of declarations of intention both in cases falling under para- graph 8, and in cases following under paragraph 7, which is inconsistent not only with the reasoning in the judgment, but with the actual decision in Doe v. His- cocks. It is also inconsistent with the principles of the judgment in the later case of Allgood v. Blake, L. R. 8 Ex. 160, where the rule is stated by Blackburn, J., as follows: — "In construing a will, the court is entitled to put itself In the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the tes- tator when he used those words." After quoting Wigram on Extrinsic Evidence, and Doe v. Hiscocks, he adds: "No doubt, in many cases the testator has, for the moment, for- gotten or overlooked the material facts and circumstances which he well knew. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the court is to construe the will as made by the tes- tator, not to make a will for him; and therefore it is bound to execute his expressed intention, even if there is great reason to believe that he has by blunder expressed what he did not mean." The part of Lord Penzance's judgment above referred to was unanimously overruled in the House of Lords; though the court, being equally divided as to the construe- DOCUMENTARY EVIDENCE 691 tion of the will, refused to reverse the judgment upon the principle "praesumitur pronegante." Conclusive as the authorities upon the subject are, it may not, perhaps, be presumptuous to express a doubt whether the conflict between a natural wish to fulfill the intention which the testator would have formed if he had recollected all the circumstances of the case; the wish to avoid the evil of permitting written instruments to be varied by oral evidence; and the wish to give effect to wills, has not pro- duced in practice an illogical compromise. The strictly logi- cal course, I think, would be either to admit declarations of intention both in cases falling under paragraph 7, and in cases falling under paragraph 8, or to exclude such evidence in both classes of cases, and to hold void for uncertainty every bequest or devise which was shown to be uncertain in its application to facts. Such a decision as that in Stringer v. Gardiner, the result of which was to give a legacy to a person whom the testator had no wish to benefit, and who was not either named or described in his will, appears to me to be a practical refutation of the principle or rule on which it is based. Of course every document, whatever, must to some extent be interpreted by circumstances. However accurate and de- tailed a description of things and persons may be, oral evi- dence is always wanted to show that persons and things answering the description exist; and therefore in every case whatever, every fact must be allowed to be proved to which the document does, or probably may, refer; but if more evi- dence than this is admitted, if the court may look at cir- cumstances which affect the probability that the testator would form this intention or that, why should declarations of intention be excluded? If the question is, "What did the testator say?" why should the court look at the circumstances that he lived with Charles, and was on bad terms with Wil- liam? How can any amount of evidence to show that the testator intended to write "Charles" show that what he did write means "Charles"? To say that "Porster" means "Charles," is like saying that "two" means "three." If the question is, "What did the testator wish?" why should the court refuse to look at his declarations of intention? And what third question can be asked? The only one which can be suggested is. "What would the testator have meant if he had deliberately used unmeaning words?" The only an- swer to this would be, he would have had no meaning, and would have said nothing, and his bequest should be pro tanto void. 692 DOCUMENTARY EVIDENCE Article 92.* cases to which articles 90 and 91 do not apply. Articles 90 and 91 apply only to parties to doc- uments, and to their representatives in interest, and only to cases in which some civil right or civil liability dependent upon the terms of a document is in question. Any person other than a party to a document or his representative in interest may, notwithstanding the existence of any docu- ment, prove any fact which he is otherwise en- titled to prove; and any party to any document or any representative in interest of any such party may prove any such fact for any purpose other than that of varying or altering any right or lia- bility depending upon the terms of the document. Illustrations. (a) The question is, whether A, a pauper, is settled in the parish of Cheadle. A deed of conveyance to which A was a party is produced, purporting to convey land to A for a valu- able consideration. The parish appealing against the order was allowed to call A as a witness to prove that no consid- eration passed. 1 (b) The question is, whether A obtained money from B under false pretences. The money was obtained as a prem- ium for executing a deed of partnership, which deed stated a consideration other than the one which constituted the false pretence. B may give evidence of the false pretence although he executed the deed misstating the consideration for the premium. 2 5 R. v. Cheadle, 3 B. & Ad. 833. -II. v. Adamson, 2 Moody 286. ♦See note at end of article. DOCUMENTARY EVIDENCE 693 APPLICATION OF RULE AS TO PARTIES. In General. The rule that parol contemporaneous evidence is inad- missible to contradict or vary the terms of a valid writ- ten instrument is applicable only in suits between the parties to the writing or their privies: California: Massie v. Chatom, 163 Cal. 772, 127 P. 56; Christenson Lbr. Co. v. Buckley, 17 Cal. App. 37, 118 P. 466. Kansas: Brenner v. Luth, 28 Kan. 581. Nebraska: Rosewater v. Hoffman, 24 Neb. 222, 38 N. W. 857; Heisler Pumping Eng Co. v. Baum, 86 Neb. 1, 124 N. W. 916. North Dakota: Luther v. Hunter, 7 N. D. 544, 75 N. W. 916. Oregon: Pacific Coast Biscuit Co. v. Dugger, 42 Or. 513, 70 P. 523; Smith v. Farmers' & M. Nat. Bank, 57 Or. 82, 110 P. 410. Texas: Kahle v. Stone, 95 Tex. 106, 65 S. W. 623; Single- tary v. Goeman, (Tex. Civ. App.), 123 S. W. 436; Clayton v. Phillipp, (Tex. Civ. App.), 159 S. W. 117. Utah: Hall v. McNally, 23 Utah 606, 65 P. 724; Olmstead v. Oregon Short Line R. Co., 27 Utah 515, 76 P. 557. Washington: Watson v. Hecla Min. Co., 79 Wash. 383, 140 P. 317; Ransom v. Wickstrom, 84 Wash. 419, 146 P. 1041. Obligor and Payee. In some instances as between the obligor and payee of a negotiable instrument, the liability of the former may be shown by parol evidence to be different from that in- dicated by the face of the instrument: Colorado: Kinsel v. Wieland, 38 Colo. 296, 88 P. 153. Oklahoma: Wills v. Fuller, (Old.), 150 P. 693. Oregon: Holt man v. Habighorst, 38 Or. 261, 63 P. 610; Lumberman's Nat. Bank v. Campbell. 61 Or. 123, 121 P. 427. South Dakota: Windhorst v. Bergendahl, 21 S. D. 218, 111 N. W. 541; Rumely Co. v. Anderson, 35 S. D. 114, 150 N. \V. 939. 694 DOCUMENTARY EVIDENCE Texas: First Nat. Bank v. Rusk Pure Ice Co., (Tex. Civ. App.), 136 S. W. 89. Utah: Gregg v. Groesbeck, 11 Utah 310, 40 P. 202. Washington: Binnian v. Jennings, 14 Wash. 677, 45 P. 302; Bank v. Jeffs, 15 Wash. 230, 46 P. 247. Parties Obligated To Pay Negotiable Instrument. As between the parties obligated to pay a negotiable in- strument, any agreement as to their respective liabilities may be shown by oral testimony: Arkansas: First Nat. Bank v. Reinman, 93 Ark. 376, 125 S. W. 443; Mott v. Causey, 112 Ark. 607, 165 S. W. 636. Kansas: Fullerton v. Hill, 48 Kan. 558, 29 P. 583; Kline v. Bank, 50 Kan. 91, 31 P. 688. Nebraska: Cox v. Ellsworth, 97 Neb. 392, 150 N. W. 197. North Dakota: Bank v. Farnsworth, 7 N. D. 6, 72 N. W. 901. Oklahoma: Stovall v. Adair, 9 Okl. 620, 60 P. 282. Texas: Daugherty v. Wiles, (Tex. Civ. App.), 156 S. W. 1089; Kohlberg v. Aubrey & S., (Tex. Civ. App.), 167 S. W. 828. Colorado. Where a non-negotiable instrument is trans- ferred by endorsement it may be shown by parol what liability the endorser assumed. — Kinderman v. Hersch, 53 Colo. 561, 129 P. 228. NOTE XXXIV. (To Article 92.) See 2 Ph. Ev. 364; Star. 726; T. E. (from Greenleaf), s. 1051. Various cases are quoted by these writers in support of the first part of the proposition in the article; but R. v. Cheadle is the only one which appears to me to come quite up to it. They are all settlement cases. PART III. PRODUCTION AND EFFECT OF EVIDENCE. 696 BURDEN OF PROOF CHAPTER XIII.* BURDEN OF PROOF. Article 93. he who affirms must prove. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he as- serts or denies to exist, must prove that those facts do or do not exist, (a) BURDEN OF PROOF. Civil Cases. The burden of proof is on a defendant to establish a counterclaim. — Morris v. Hokosona. 26 Colo. App. 251, 143 P. 826; Powder Valley State Bank v. Hudelson, 74 Or. 191, 144 P. 494. The burden of establishing an affirmative defense is on the defendant: Arkansas: Mueller v. Breckenridge, 121 Ark. 633, 181 S. W. 145 (action on note; defendant has burden of proof on his plea of set-off). Nebraska: Omaha Nat. Bank v. Graham, 98 Neb. 844, 154 N. W. 729 (suit on note; affirmative defenses). Oklahoma: Fifth Ave. Library Society v. Phillips, 39 'Okl. 799, 136 P. 1076 (suit on contract for set of books; de- fendant, setting up breach of warranty, must prove it). Texas: Powell v. Powell, (Tex. Civ. App.), 170 S. W. Ill (divorce action by wife; defendant assumes burden of proving defense of undue influence by wife's mother). (a) 1 Ph. Ev. 552; T. E. (from Greenleaf), s. 337; Best, ss. 265-266; Starkie, 585-586; [4 Wigmore Ev., § 2483 et'seq.]. *See Note at end of chapter. BURDEN OF PROOF 697 Washington: McVay v. Reese, 62 Wash. 562, 114 P. 184 (action on note; defendant has burden of proving want of consideration) ; Nicholson v. Neary, 77 Wash. 294, 137 P. 492 (same). Arkansas. A defendant alleging a set-off has the burden of proving the same. — Mueller v. Breckenridge, 121 Ark. 633, 181 S. W. 145. California. While a plaintiff is required to establish his case by a preponderance of the evidence, a preponderance of evidence does not necessarily mean a preponderance of the number of witnesses. — Grant v. McPherson, 104 Cal. 165, 37 P. 864. "Burden of proof" means the necessity of establishing the existence of a certain fact or set of facts by evidence which preponderates to the legally required extent, and in this sense the burden of proof is on the party main- taining the affirmative of the issue; but the expression also means the necessity which rests on the party at any particular time during a trial to create a prima facie case in his own favor, or to overthrow one when created against him. (Suit on note; incumbent on plaintiff to prove due execution and nonpayment; burden then on defendant to disprove presumption of sufficient consider- ations—Ruth v. Krone. 10 Cal. App. 770, 103 P. 960. The burden of proof is upon a party to sustain his alle- gations— Fawcett v. Gregg, 26 Cal. App. 727, 148 P. 524. Oklahoma. Ordinarily the burden of proof as to any par- ticular fact rests on the party asserting such fact. — Fifth Ave. Library Society v. Phillips, 39 Okl. 799, 136 P. 1076. A defendant pleading breach of warranty has the burden to prove same. — Fifth Ave. Library Society v. Phillips, 39 Okl. 799, 136 P. 1076. The burden of establishing the entire case by a pre- ponderance of the evidence is at all times upon the party having the affirmative, and remains during the entire case where the pleadings originally placed it. — Standard Ma- rine Ins. Co. v. Traders' Compress Co., 46 Okl. 356, 148 P. 1019. In an action on a note or account where the defense al- leged is breach of warranty in the article for the purchase 698 BURDEN OP PROOF of which the note or account was made, the burden of proof is upon the defendant. — Congdon v. McAlester C. & W. Factory, (Okl.), 155 P. 597. Oregon. He who alleges must prove. — Peaslee v. Gordon Falls Elec. & M. Co., 68 Or. 244, 135 P. 521. Texas. He who affirms must prove. — Wells v. Margraves, (Tex. Civ. App.), 164 S. W. 881; Texas Power & L. Co. v. Bird, (Tex. Civ. App.), 165 S. W. 8. The burden of proof is generally upon the plaintiff. (Action for setting fire to plaintiff's barn by sparks from engine; burden on plaintiff to show that engines were not in good condition.) — Texas Midland R. R. v. Ray, (Tex. Civ. App.), 168 S. W. 1013. When a plaintiff has produced evidence sufficient to raise an issue as to the truth of his claim, and it appears from the circumstances that defendant is in possession of evidence which will show whether or not the inferences which can legitimately be drawn from plaintiff's evidence are true, and does not offer it, it is a fair and legitimate in- ference that the evidence so withheld by defendant would, if produced, confirm the inference arising from plaintiff's evidence; but plaintiff's case cannot be sustained when it depends wholly upon the failure of defendant who is shown to be in possession of the facts, to disprove plain- tiff's claim. Until the plaintiff makes out a prima facie case the defendant is not required to offer any evidence. —Texas Co. v. Clarke, (Tex. Civ. App.), 182 S. W. 351. Washington. "Preponderance of evidence" is the excess over the amount of testimony necessary to balance the scales, and, when we say the burden of proof is upon a party we mean simply that he must furnish that excess before he is entitled to a verdict. — McKenzie v. Oregon Imp. Co., 5 Wash. 409, 31 P. 748; Palmer v. Huston, 67 Wash. 210, 121 P. 452. A defendant who pleads an affirmative defense has the burden to sustain it. — McVay v. Reese, 62 Wash. 562, 114 P. 184. One who pleads want of consideration when sued on a note has the burden of proof.— Nicholson v. Neary, 77 Wash. 294, 137 P. 492. BURDEN OF PROOF 699 Criminal Prosecutions. The burden is on the prosecution to prove the defend- ant guilty beyond a reasonable doubt. — McBride v. Peo- ple, 60 Colo. 435, 153 P. 751; State v. Bogris, 26 Ida. 58, 144 P. 7S9; State v. Smith, 21 N. M. 173, 153 P. 256. A reasonable doubt is that state of the case, which after the entire comparison and consideration of all the evi- dence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. — Commonwealth v. Webster, 5 Cush. (Mass.) 295, 320; People v. Chun Heong, 86 Cal. 329, 24 P. 1021; People v. Paulsell, 115 Cal. 6, 46 P. 734. California. When the defendant relies upon no distinct, separate or independent fact, such as insanity, but con- fines his defense to the original transaction upon which the charge is founded, with its accompanying circum- stances, the burden of proof never shifts, but remains upon the people throughout the whole case to prove the act committed a criminal one beyond a reasonable doubt. —People v. Ribolsi, 89 Cal. 492, 26 P. 1082. Colorado. It is not necessary for the state to prove be- yond a reasonable doubt every circumstance offered in evi- dence and tending to establish the ultimate facts or cir- cumstances on which a conviction depends. — Clare v. People. 9 Colo. 122, 10 P. 799. The burden is upon the accused to prove any independent exculpatory or substantive defense upon which he relies, but if. after all the evidence is in. it is found upon the whole case that the people have not sustained the burden of proof, and have not convinced the jury of the defend- ant's guilt beyond a reasonable doubt he should be ac- quitted.— Cook v. People, 60 Colo. 263^,153 P. 214. Nebraska. A reasonable doubt does not consist of pos- sible or conjectural doubts not growing out of the evi- dence, but is one which, when considering the evidence alone, leads the juror to hesitate, and upon which he would refuse to act in the important concerns of life. — Carr v. State, 23 Neb. 749, 37 N. W. 630. 700 BURDEN OF PROOF Oklahoma. The burden does not rest upon the defendant to establish even to a reasonable probability the truth of an affirmative defense, but'if, by a preponderance of evi- dence the necessary facts are established, which, taking into consideration the whole case, create a reasonable doubt of the guilt of the defendant, he is entitled to the benefit of it. — Maas v. Territory, 10 Okl. 716, 63 P. 960; McClatchey v. State, (Okl. Cr.), 152 P. 1136. Proof of a Negative. Where the subject-matter of a negative averment in an indictment or information relied upon by defendant as a justification or excuse lies peculiarly within his knowl- edge, the general rule is that the burden of proof as to such justification or excuse is on the defendant. — Cleary v. State, 56 Ark. 124, 19 S. W. 313; People v. Boo Doo Hong, 122 Cal. 606, 55 P. 402. Colorado. An exception to the rule that where the plain- tiff grounds his action upon negative allegation, the bur- den of showing that negation is upon him, is found where the subject-matter of the negative is such as not to admit of convenient proof, and it may be reasonably inferred, that, if untrue, the defendant has, peculiarly within his control, the means of showing the affirmative, the burden of proof is upon him; yet if the negative involve a charge of fraud, or criminal omission of duty, the burden of establishing it shall, in general, be upon him who asserts it. — Machebeuf v. Clements, 2 Colo. 36. New Mexico. Where proof of a negative is a matter pe- culiarly within defendant's knowledge, the plaintiff is not required to establish it, and when his contention is prima facie established it devolves on the defendant to show the contrary. — Atchison, T. & S. F. Ry. Co. v. Rodgers, 16 N. M. 120, 113 P. 805. Proof of sufficient facts necessarily inconsistent with the position of the adverse party, to cause the court to say that a prima facie case has been made out is not excused by the rule that where the facts required to be shown are of a negative character, the burden of evidence may some- times be sustained by proof rendering probable the exis- BURDEN OF PROOF 701 tence of the negative fact; or the rule to the effect that where knowledge or means of knowledge are almost wholly with the party not having the burden of proof, when all the evidence within the power of the moving party has been produced, the burden of evidence may sometimes shift to the party having such knowledge or means of knowl- edge.— Young v. Woodman, 18 N. M. 207, 135 P. 86. South Dakota. Where the subject-matter of a negative averment in an indictment or information relied upon by defendant as a justification or excuse lies peculiarly with- in his knowledge, the general rule is that the burden of proof as to such justification or excuse is on the defend- ant.— Territory v. Scott, 2 Dak. 212, 6 N. W. 435. By the burden of proof as thus employed, is meant the duty of producing evidence in order to meet a prima facie case, not the quantum of evidence required to establish the truth of any given proposition or issue. — State v. Car- lisle, 30 S. D. 475, 139 N. W. 127. Utah. Where proof of a negative is a matter peculiarly within defendant's knowledge, the plaintiff is not required to establish it, but when his contention is prima facie established it devolves on the defendant to show con- trary.— Mclntyre v. Ajax Min. Co., 20 Utah 323, 60 P. 552. Defense of Alibi or Insanity. The general burden of proof on the prosecution in a criminal case to prove the guilt of defendant beyond a reasonable doubt is not changed when defendant under- takes to prove an alibi, and he need not prove this defense by a preponderance of the evidence; so that if by rea- son of the evidence in relation to such alibi the jury should doubt the defendant's guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi had been fully proved. — Schultz v. Territory, 5 Ariz. 239, 52 P. 352; People v. Roberts, 122 Cal. 377, 55 P. 137; People v. Winters, 125 Cal. 325, 57 P. 1067; McNa- mara v. People, 24 Colo. 61, 48 P. 541; Casey v. State, 49 Neb. 403, 68 N. W. 643; Beck v. State, 51 Neb. 106, 70 N. W. 498; Borrego v. Territory, 8 N. M. 446, 46 P. 349; Shoemaker v. Territory, 4 Okl. 118, 43 P. 1059; Wright v. 702 BURDEN OF PROOF Territory, 5 Okl. 78, 47 P. 1069; State v. Thornton, 10 S. D. 349, 73 N. W. 196. Arkansas. It is erroneous for the court to instruct that the burden of proving an alibi is upon defendant and un- less the jury find that defendant has established such alibi they will find him guilty. — Wells v. State, 102 Ark. 627, 145 S. W. 531. Although the burden of establishing the defense of alibi as an affirmative fact is upon the defendant, yet if the evidence which he offers in support of that defense, taken in connection with all the other evidence in the case, is sufficient to raise a reasonable doubt of the defendant's guilt, the jury should acquit. — Woodland v. State, 110 Ark. 15, 160 S. W. 875. A preponderance of evidence suffices to sustain the de- fense of alibi or insanity.— Ware v. State, 59 Ark. 379, 27 S. W. 485; Wells v. State, 102 Ark. 627, 145 S. W. 531; Bell v. State, 120 Ark. 530, 180 S. W. 186. Idaho. The defenses of alibi, insanity, etc., need not be established beyond a reasonable doubt, but the defendant has the burden to establish his defense by a preponder- ance of evidence; if then, after taking the whole evi- dence in the case into consideration, there remains a rea- sonable doubt of guilt, the prosecution must fail. — People v. Walter, 1 Ida. 386; State v. Bogris, 26 Ida. 58, 144 P. 789. Nevada. A party interposing a defense of insanity need do no more than establish that condition of mind by evi- dence which preponderates in favor of insanity — taking everything submitted into consideration, enforcing a belief of insanity.— State v. Lewis, 20 Nev. 334, 22 P. 241; State v. Nelson, 36 Nev. 403, 136 P. 377. New Mexico. The burden of proving an alibi is upon the defendant, after the territory has made out a prima facie case, to the extent, at least, of raising a reasonable doubt of guilt.— Wilburn v. Territory, 10 N. M. 402, 62 P. 968. "After the territory has made out its case, it devolves upon the accused to introduce evidence, if he has any, to prove his alibi, if he relies upon such a defense. In that BURDEN OF PROOF 703 sense the burden is upon the accused, and in order to maintain it, he is bound to establish in its support such facts and circumstances as are sufficient, when consid- ered in connection with all the other evidence in the case, to create in the minds of the jury a reasonable doubt of his guilt."— Wilburn v. Territory, 10 N. M. 402, 62 P. 968. The prosecution must prove the defendant guilty be- yond a reasonable doubt. Seeking to establish an alibi is simply rebutting the evidence of the state and the defendant does not have the burden of establishing it to the satisfaction of the jury.— State v. Smith, 21 N. M. 173, 153 P. 256. Oklahoma. A party interposing a defense of insanity need do no more than establish that condition of mind by evi- dence which preponderates in favor of insanity— taking everything submitted into consideration, enforcing a belief of insanity.— Maas v. Territory, 10 Okl. 716, 63 P. 960. Texas. When the evidence for the state has established beyond a reasonable doubt that defendant was present and participated in the commission of an offense, and is guilty as charged, he may rebut the case made by the state by proof of an alibi: but unless he makes such proof, or proves some other matter which will exculpate him, or raise in the minds of the jury a reasonable doubt of his guilt, his conviction must follow. It is not required, in order to entitle a defendant to an acquittal upon the de- fense of alibi, that such defense should be established be- yond a reasonable doubt. The rule is that if the evi- dence adduced in the case, whether in behalf of the state or of the defendant, engenders in the minds of the jury a reasonable doubt as to the defendant's presence at the time and place of the commission of the offense, the de- fendant is entitled to an acquittal. — Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087; Saenz v. State, (Tex. Cr. R.), 63 S. W. 317. Where the defense in a criminal prosecution is insan- ity, it must be proved by a preponderance of evidence, but where it conclusively appears that prior to the commis- 704 BURDEN OF PROOF sion of the crime, the defendant was insane, the burden is upon the prosecution to show beyond a reasonable doubt that he had recovered his sanity when the crime was com- mitted.— Witty v. State, (Tex. Cr. R.), 171 S. W. 229; Guerro v. State, (Tex. Cr. R.), 171 S. W. 731; Burgess v. State, (Tex. Cr. R.), 181 S. W. 465. Article 94.* presumption of innocence. If the commission of a crime is directly in issue in any proceeding, criminal or civil, it must be proved beyond reasonable doubt, (a) The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. Illustrations. (a) A sues B on a policy of fire insurance. B pleads that A burnt down the house insured. B must prove his plea as fully as if A were being prosecuted for arson. 1 (b) A sues B for damage done to A's ship by inflammable matter loaded thereon by B without notice to A's captain. A must prove the absence of notice. 2 (c) The question in 1819 is, whether A is settled in the parish of a man to whom she was married in 1813. It is proved that in 1812 she was married to another person, who enlisted soon afterwards, went abroad on service, and had not been heard of afterwards. The burden of proving that the first husband was alive at the time of the second mar- riage is on the person who asserts it. 3 (a) [This, however, is not the general rule in this country as regards civil cases where, as will be observed from the citations given under this article, the almost universal rule does not require an allegation of crime to be proved beyond reasonable doubt. 4 Wigmore Ev., § 2498.] JThurtell v. Beaumont, 1 Bing. 339. 2 Williams v. East India Co., 3 Ea. 102, 198-199. 3R. v. Twyning, 2 B. & A. 386. * See note at end of article. BURDEN OF PROOF 705 PRESUMPTION OF INNOCENCE. Arizona. All persons are presumed innocent until con- victed.— Crowell v. State, 15 Ariz. 66, 136 P. 279. Arkansas. Between conflicting presumptions that which is in favor of the innocence of the accused prevails. — Mc- Arthur v. State, 59 Ark. 431, 27 S. W. 628; Martin v. State, 97 Ark. 212, 133 S. W. 598. The presumption of innocence attends every defendant charged with any crime and continues until it is over- come by the evidence of guilt. — Woodland v. State, 110 Ark. 15, 160 S. W. 875. California. The presumption of delivery arising from the fact of possession of an instrument, cannot be indulged in as opposed to the presumption of a material element of a serious criminal charge. — People v. Scott, 22 Cal. App. 54, 133 P. 496. Every presumption is in favor of innocence. — People v. Phillips, 27 Cal. App. 409, 150 P. 75. Colorado. The defendant in a criminal case is entitled to every presumption of innocence consistent with the evi- dence in the case. — Clarke v. People, 16 Colo. 511, 27 P. 724. Kansas. A defendant is presumed to be innocent of a crime charged and of every ingredient thereof, until his guilt is established by evidence beyond a reasonable doubt. It rebuts the evidence of guilt up to the point that the latter, notwithstanding the presumption, convinces the jury beyond a reasonable doubt of the truth of the charge. —State v. Reilly, 85 Kan. 175, 116 P. 481. Montana. No presumption exists that a person acted un- lawfully. — McLaughlin v. Bardsen, 50 Mont. 177, 145 P. 954. Nebraska. The presumption of innocence of the accused continues with him until his guilt is established by the evi- dence beyond a reasonable doubt. — Flege v. State, 90 Neb. 390, 133 N. W. 431. When two equal presumptions — one in favor of inno- cence, the other in favor of guilt — are presented, the for- 706 BURDEN OF PROOF mer is to be preferred and applied. — Hayward v. State, 97 Neb. 9, 149 N. W. 105. Nevada. The accused is presumed to be innocent until the presumption is overcome by the evidence. — State v. Grady, 32 Nev. 154, 104 P. 596. North Dakota. It will be presumed that a person acted lawfully and did not do an unlawful act or commit a crime. —Fried v. Olsen, 22 N. D. 381, 133 N. W. 1041. There is no presumption that a crime has been com- mitted where mangled human remains are found on the track at a railroad crossing. — Rober v. Northern Pacific Ry. Co., 25 N. D. 394, 142 N. W. 22. Oklahoma. The only purpose of the presumption of inno- cence until guilt is established beyond a reasonable doubt is to fix the burden of proof in the first instance, and to designate that the duty rests upon the prosecution to pro- duce evidence and effect persuasion, beyond a reasonable doubt.— Cochran v. State, 4 Okl. Cr. R. 393, 114 P. 747. Oregon. It will not be presumed that a person committed an unlawful act.— Crane v. Oregon R. & N. Co., 66 Or. 317, 133 P. 810. Texas. A defendant in a criminal prosecution is pre- sumed innocent until the proof shows his guilt beyond a reasonable doubt.— Conger v. State, 68 Tex. Cr. R. 312, 140 S. W. 1112; Witty v. State, (Tex. Cr. R.), 171 S. W. 229. Washington. The presumption of innocence of the ac- cused continues with him throughout the trial. — State v. Krug, 12 Wash. 288, 41 P. 126. Wyoming. Every person is presumed innocent until his guilt is established beyond a reasonable doubt. — Dalzell v. State, 7 Wyo. 450, 53 P. 297. PROOF OF COMMISSION OF CRIME IN CIVIL CASES. A fact of crime in issue in a civil action is to be deter- mined from the preponderance of the evidence, and is not required to be proved beyond a reasonable doubt: California: Hearne v. De Young. 119 Cal. 670, 52 P. 150 (libel; merely a preponderance sufficient). BURDEN OF PROOF 707 Colorado: Brown v. Tourtelotte, 24 Colo. 204, 50 P. 195 (action on note; defense that note was forged); Smith v. Smith, 16 Colo. App. 333, 65 P. 401 (trespass by de- fendant's hogs, it being a misdemeanor to permit such trespass). Kansas: Kansas Mill Owners', etc.. Ins. Co. v. Rammels- berg, 58 Kan. 531, 50 P. 446 (evidence of fraud in procur- ing written instrument should be clear, decided and satis- factory). Montana: Wellcome, In re. 23 Mont. 450, 59 P. 445 (dis- barment proceedings, on charge of bribery). Nebraska: Dukehart v. Coughman. 36 Neb. 412, 54 N. W. 680 (prosecution for bastardy) ; Nebraska State Bank v. Johnson, 51 Neb. 546, 71 N. W. 294 (suit to recover possession of personal property alleged to have been stolen by defendant). Oregon: First Nat. Bank v. Commercial Assur. Co., 33 Or. 43, 52 P. 1050 (result should follow preponderance of evi- dence, even though the result imputes a crime). Texas: Mott v. Spring Garden Ins. Co.. (Tex. Civ. App). 154 S. W. 658 (action on fire insurance policy; defense that plaintiff procured the insurance to defraud the company and then burned the house). Washington: Hart v. Niagara Ins. Co.. 6 Wash. 620, 38 P. 213 (action on fire insurance policy: defense of wilful burning). California. If the defendant, in an action for slanderous words in which a crime is imputed to the plaintiff, justi- fies on the ground that they were true, he must prove the plaintiff guilty of the crime imputed to him. by testimony sufficient to convict him of the crime on a criminal trial. — Merk v. Gelzhaeuser. 50 Cal. 631. It may require more evidence to overthrow a presump- tion that one has not committed an affirmative or posi- tive and active fraud than that he has not denied an hon- est debt; but such a difference should be called to the attention of the jury in language of careful discrimination, lest they should he led to the belief that a mere prepon- derance of the evidence will not justify a verdict of guilty 708 BURDEN OF PROOF of fraud in civil cases. — Bullard v. His Creditors, 56 Cal. 600. Texas. "There is no force in the position that, because the facts of this case involve a criminal act (maliciously poi- soning plaintiff's hogs), there should be a greater or more certain degree of proof than is required in other civil actions. A party holding the affirmative of an issue is only required to adduce a preponderance of evidence as will satisfy the minds of the jury of the truth of the facts in issue."— Heiligmann v. Rose, 81 Tex. 222, 16 S. W. 931. NOTE xxxvi. (To Article 94.) The presumption of innocence belongs principally to the Criminal Law, though it has, as the illustrations show, a bearing on the proof of ordinary facts. The question, "What doubts are reasonable in criminal cases?" belongs to the Criminal Law. ARTICLE 95. ON WHOM THE GENERAL BURDEN OF PROOF LIES. The burden of proof in any proceeding lies at first on that party against whom the judgment of the Court would be given if no evidence at all were produced on either side, regard being had to any presumption which may appear upon the plead- ings, (a) As the proceeding goes on, the burden of proof may be shifted from the party on whom it rested at first by his proving facts which raise a presumption in his favor, (b) (a) [Veiths v. Hagge, 8 Iowa 163; Amos v. Hughes, 1 M. & R. 464.] (b) 1 Ph. Ev. 552; T. E. ss. 338-339; [4 Wigmore Ev., § 2489]; Starkie, 586-587 & 748; Best, ss. 265-268. BURDEN OF PROOF 709 Illustrations. (a) It appears upon the pleadings that A is indorsee of a bill of exchange. The presumption is that the indorsement was for value, and the party interested in denying this must prove it. 1 (b) A, a married woman, is accused of theft and pleads not guilty. The burden of the proof is on the prosecution. She is shown to have been in possession of the stolen goods soon after the theft. The burden of proof is shifted to A. She shows that she stole them in the presence of her hus- band. The burden of proving that she was not coerced by him is shifted on to the prosecutor. 2 (c) A is indicted for bigamy. On proof by the prosecu- tion of the first marriage, A proves that at the time he was a minor. This throws on the prosecution the burden of prov- ing the consent of A's parents.* (d) A deed of gift is shown to have been made by a client to his solicitor. The burden of proving that the transaction was in good faith is on the solicitor. 4 (e) It is shown that a hedge stands on A's land. The burden of proving that the ditch adjacent to it Is not A's also is on the person who denies that the ditch belongs to A. 8 (f) A proves that he received the rent of land. The pre- sumption is, that he is owner in fee-simple, and the burden of proof is on the person who denies it. 9 (g) A finds a jewel mounted in a socket, and gives it to B to look at. B keeps it, and refuses to produce it on notice, hut returns the socket. The burden of proving that It Is not as valuable a stone of the kind as would go into the socket is on B. T 'Mills v. Barber, 1 M. & W. 425. »1 Russ. Cri. 23: and 2,337. »R. v. Butler. 1 R. & R. 61. M Story TCq. Juris, s. 310, n. 1. Quoting Hunter v. Atkins. 3 M. & K. 113. [And the presumption is against the solicitor. Brown v. Bulkley, 13 N. J. Eq. 451.] •Guy v. "West, Selw. N. P. 1297. "Doe v. Coulthred, 7 A. & E. 235. TArmoury v. Delamlrie, 1 S. L. C. 357. [This rule rests upon the doctrine that the presumption is against the party who can, and will not, produce evidence to explain an ambiguity. But where a party is not shown to be able to produce such evidence, the rule is different. Thus, when the delivery of a bank-note is proved without proof of its denomination, the presumption is in favor of the defendant, that it is the smallest in circulation. Lawton v. Sweeney, s .Jur. 964.1 710 BURDEN OF PROOF (h) A sues B on a policy of insurance, and shows that the vessel insured went to sea, and that after a reasonable time no tidings of her have been received, but that her loss had been rumored. The burden of proving that she has not foundered is on B. s ON WHOM IS BURDEN OF PROOF. California. Where it appears that a party has failed to perform a duty imposed by law, the burden is cast upon him to excuse his conduct in order to relieve himself from the penalty. — Chadbourne's Estate, In re, 15 Cal. App. 363, 114 P. 1012. Colorado. In an action on a contract claiming full per- formance, where a recovery is allowed on a substantial performance, less such amount as would be required to compensate the defendant, the burden is upon the plaintiff to prove such substantial performance as will entitle him to so recover, and also establish the amount necessary to compensate the defendant for failure of performance. — Morris v. Hokosona, 26 Colo. App. 251, 143 P. 826. North Dakota. Where one seeks to rescind a contract for fraud, the burden of proving his knowledge of the facts giving rise to the right, and of the time of acquiring such knowledge, rests on the adverse party. — Liland v. Tweto, 19 N. D. 551, 125 N. W. 1032. The term "burden of proof" is generally used in two senses; the first means that a party will lose, unless he shall have brought down his end of the scale, by placing thereon a weight of evidence sufficient, first, to destroy the equilibrium, and, second, to overbalance any weight of evidence placed on the other end. In the second sense, the necessity which rests on a party at any particular time to create a prima facie case in his own favor or to over- throw one when created against him. This necessity or burden devolves upon one party, whenever, under the evi- dence, or applicable presumptions, or a combination of these, the other party is entitled as a matter of law to a ruling in his favor. The latter sense is sometimes ex- s Koster v. Reed, 6 B. & C. 19. BURDEN OF PROOF 711 pressed as "burden of evidence" or "weight of evidence." —Guild v. More, 32 N. D. 432, 155 N. W. 44. Oregon. Where two presumptions balance each other the plaintiff in order to recover must produce other evidence. —State v. Olcott, 67 Or. 214, 135 P. 902. Texas. Where the accused has been found insane by the judgment of a court the condition is presumed to continue, and when subsequently tried for a crime the burden is upon the prosecution to establish that he had recovered his reason at the time of the commission of the crime charged.— Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206; Wisdom v. State. 42 Tex. Cr. R. 583, 61 S. W. 26; Witty v. State, (Tex. Cr. R.), 153 S. W. 1146. Utah. Whenever the existence of any fact or facts is necessary in order that a party may make out his case or establish a defense, the burden of proof — the onus pro- bandi — is on such party to show the existence of such fact or facts. That burden does not shift and is unaffected by the evidence as the trial proceeds. After all the evidence is in. the one having the burden will lose unless the evi- dence bears more heavily in his favor. — Leavitt v. Thurs- ton, 38 Utah 351, 113 P. 77. Washington. When a defendant unnecessarily pleads an affirmative defense the burden of proof is not thereby cast upon him. — Davidson Fruit Co. v. Produce Distributors Co., 74 Wash. 551, 134 P. 510. SHIFTING OF BURDEN. North Dakota. In an action by a passenger against a car- rier for personal injuries, the plaintiff has the burden of proof, but when he establishes that the injury was caused by the acts of the carrier in the operation of the train, he raises a presumption of negligence, and the burden of the evidence is thereupon shifted upon the defendant, and lies to rebut that presumption by showing that it was not negligent, or that the plaintiff, by the exercise of ordi- nary care on his part, could have avoided the consequences to himself of the negligence of the carrier. — Guild v. More, 32 N. D. 432, 155 X. W. 44. 712 BURDEN OF PROOF Oklahoma. The duty of proceeding to adduce evidence after a prima facie case has been established shifts to the party with the negative of the issue. This, however, is not a shifting of the burden of proof, as it remains where the pleadings placed it, but, after a prima facie case has been established, the burden of producing the evidence necessary to overcome the prima facie case shifts to the defendant, and this is termed a shifting of the burden of evidence. — Standard Marine Ins. Co. v. Traders' Compress Co., 46 Okl. 356, 148 P. 1019. Texas. Whoever has the affirmative of the issue as de- termined by the pleadings has the burden of proof, which never shifts. — Barnes v. McCarthy, (Tex. Civ. App.), 132 S. W. 85. The burden remains upon the plaintiff to prove all mat- ters essential to establish his case and does not shift to defendant, even though the plaintiff has established his case prima facie. It is only where plaintiff has made out his case which defendant seeks to overthrow by proof of some substantive defense that defendant has the burden and then only to prove the matters constituting such de- fense. A plaintiff seeking to recover for damages occa- sioned by cutting timber claimed by him, must not only prove ownership of the land, but that the timber taken was his. Where defendant claimed to have purchased the timber of a remote grantor of plaintiff, defendant did not have the burden to show that the timber cut was included in the grant. — Kirby Lumber Co. v. Stewart, (Tex. Civ. App.), 141 S. W. 295. In criminal cases the burden of proof is generally on the prosecution, still in some instances the burden may shift to defendant, as where nonage or insanity is alleged, but not in any case until after the state has made out a case overcoming the presumption of innocence and rea- sonable doubt.— Hawkins v. State, (Tex. Cr. R.), 179 S. W. 448. The burden of proof never shifts from the plaintiff to the defendant, but is upon the plaintiff throughout the trial to establish, by a preponderance of all the evidence, BURDEN OF PROOF 713 the affirmative of the issue or issues upon which he relies for a recovery. — Powell v. Powell, (Tex. Civ. App.), 170 S. W. Ill; Boswell v. Pannell, (Tex.), 180 S. W. 593. Washington. When proof is offered to rebut a presump- tion of fact, the burden shifts, and it is incumbent upon the opposing party to sustain his case by competent evi- dence. — Scarpelli v. Washington Water P. Co., 63 Wash. 18, 114 P. 870; Nicholson v. Neary, 77 Wash. 294, 137 P. 492. Article 96. burdex of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person; (a) but the burden may in the course of a case be shifted from one side to the other, and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respect- ively. Illustrations. (a) A prosecutes B for theft, and wishes the court to be- lieve that B admitted the theft to C. A must prove the ad- mission. B wishes the court to believe that, at the time in question, he was elsewhere. He must prove It. (b) A, a shipowner, sues B, an underwriter, on a policy of Insurance on a ship. B alleges that A knew of and con- cealed from B material facts. B must give enough evidence (a) For instances of such provisions, see T. E. ss. 345-346. 714 BURDEN OF PROOF to show upon A the burden of disproving his knowledge; but slight evidence will suffice for this purpose. 1 (c) In actions for penalties under the old game laws, though the plaintiff had to aver that the defendant was not duly qualified, and was obliged to give general evidence that he was not, the burden of proving any definite qualification was on the defendant. 2 BURDEN AS TO PARTICULAR FACTS. Ordinarily the burden of proof as to any particular fact rests upon the party asserting it: Arkansas: Henderson v. E. W. Emerson Co., 105 Ark. 697, 151 S. W. 251 (plaintiff, claiming that a partnership for the buying and selling of cotton seed was to continue for the whole season of 1910, has the burden of proof, though the defendant alleges that the partnership was only for the purchase and sale of two carloads). California: Fawcett v. Gregg, 26 Cal. App. 727, 148 P. 524 (claim of partnership). Oklahoma: Fifth Ave. Library Society v. Phillips, 39 Okl. 799, 136 P. 1076 (party relying on breach of warranty, to prove both warranty and breach). Oregon: Peaslee v. Gordon Falls Elec. & Mfg. Co., 68 Or. 244, 135 P. 521 (where each allegation of complaint was denied by answer, it is incumbent on plaintiff to make a prima facie case as to each material fact). Texas: Texas Power & Light Co. v. Bird, (Tex. Civ. App.), 165 S. W. 8 (burden on plaintiff to prove lack of contributory negligence, where he has alleged facts which, if not excused, show contributory negligence, and alleges certain other facts which exonerate him). The burden of proving contributory negligence of a plain- tiff suing for damages on account of personal injuries rests 'Elkin v. Janson, 13 M. & W. 655. See, especially, the judgment of Alderson, B., 663-666. 2 1 Ph. Ev. 556, and cases there quoted. The illustration is founded more particularly on R. v. Jarvis, in a note to R. v. Stone, 1 Ea. 639, where Lord Mansfield's language appears to imply what is stated above. Shafer v. State, 7 Tex. App. 239; Com. v. McKie, 1 Gray, 61; State v. Jones, 50 N. H. 370. BURDEN OF PROOF 715 on defendant. — Nat'l Fuel Co. v. Maccia, 25 Colo. App. 441, 139 P. 22 (by statute, under Employer's Act) ; Jones v. Joplin & P. Ry. Co., 91 Kan. 282, 137 P. 796; St. Louis, B. & M. Ry. Co. v. Vernon, (Tex. Civ. App.), 161 S. W. 84; Peden Iron & Steel Co. v. Jaimes, (Tex. Civ. App.), 162 S. W. 965; Texas Traction Co. v. Wiley, (Tex. Civ. App.), 164 S. W. 1028; Wells Fargo & Co. v. Benjamin, (Tex. Civ. App). 165 S. W. 120; J. M. Guffey Petroleum Co. v. Dinwiddle, (Tex. Civ. App.), 168 S. W. 439. A party interposing a defense of insanity need do no more than establish that condition of mind by evidence which preponderates in favor of insanity — taking every- thing submitted into consideration, enforcing a belief of insanity.— People v. Dillon, 8 Utah 97, 30 P. 150; State v. Clark, 34 Wash. 485, 76 P. 98. Oklahoma. The burden of proof is upon the plaintiff to show each and every particular fact necessary to make out his cause of action by a preponderance of the evidence, and the burden is upon the defendant to establish the affirma- tive allegations or defense set up in the answer by a pre- ponderance of the evidence. — Missouri, K. & T. Ry. Co. v. Horton, 28 Okl. 815, 119 P. 233. SHIFTING BURDEN OF PROOF. Idaho. Where a statute provides that upon a certain fact being shown certain other presumptions of law arise, or where one fact is shown the same is prima facie evidence of another, it means that such prima facie presumption or prima facie evidence is sufficient to go to a jury to prove such fact, but is not conclusive. Such statutes are enacted for the purpose of shifting the burden of proof; but, if the adverse party does not rebut the presumption, it is for the jury to exercise their judgment upon the weight, sufficiency, and credibility of the evidence. — State v. Adams, 22 Ida. 485, 126 P. 401. NOTE XXXV. (To Chapter XIII.) in this and the following chapter many matters usually introduced into treatises on evidi omitted, because tiny appear to belong either to the subject of pleading, or 716 BURDEN OF PROOF to different branches of Substantive Law. For instance, the rules as to the burden of proof of negative averments in criminal cases (1 Ph. Ev. 555, etc.; 3 Russ. on Cr. 276-279) belong rather to criminal procedure than to evidence. Again, in every branch of Substantive Law there are presumptions, more or less numerous and important, which can be under- stood only in connection with those branches of the law. Such are the presumptions as to the ownership of property, as to consideration for a bill of exchange, as to many of the incidents of the contract of insurance. Passing over all these, I have embodied in Chapter XIV those presumptions only which bear upon the proof of facts likely to be proved on a great variety of different occasions, and those estoppels only which arise out of matters of fact, as distinguished from those which arise upon deeds or judgments. Article 97. bfrden of proving fact to be proved to make evidence admissible. The burden of proving any fact necessary to be proved in order to enable any person to give evi- dence of any other fact is on the person who wishes to give such evidence. Illustrations. (a) A wishes to prove a dying declaration by B. A must prove B's death, and the fact that he had given up all hope of life when he made the statement. (b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost. BURDEN OF PROVING PRELIMINARY FACTS. Arkansas. A prima facie conspiracy should be established to admit evidence of the acts and declarations of the al- leged conspirators. — Cantrell v. State, 117 Ark. 233, 174 S. W. 521. If all the evidence shows that a conspiracy actually ex- isted, it is not material whether the conspiracy is estab- lished before or after the detailing in evidence of the acts BURDEN OF PROOF 717 and declarations of the conspirators. — Turner v. State, 121 Ark. 40, 180 S. W. 211; Hearne v. State, 121 Ark. 460, 181 S. W. 291. California. The prosecution must show that a confession offered as evidence was made voluntarily. — People v. Burns, 27 Cal. App. 227, 149 P. 605. Montana. Where it is desired to offer secondary evidence of the contents of an alleged lost document, the party de- siring to offer such evidence has the burden to prove the loss of the original.— Bond v. Hurd, 31 Mont. 514, 78 P. 579. Nebraska. A confession alleged to have been made by defendant in a criminal prosecution must be shown to have been voluntary, ' otherwise it is inadmissible. — Jones v. State, 97 Neb. 151, 149 N. W. 327. Oklahoma. Prima facie proof of the conspiracy must be made before the statements of the conspirators are admis- sible in evidence. — Campbell v. Newton & Driskill, (Okl.), 152 P. 841. One desiring to offer secondary evidence of the contents of a document must satisfactorily show that the original is unavailable. — Missouri. O. & G. Ry. Co. v. West, (Okl.), 151 P. 212. Oregon. It devolves upon the prosecution to show that a confession offered in evidence was made voluntarily. — State v. Spanos, 66 Or. 118, 134 P. 6. Texas. Proof of a combination or plot must precede the introduction in evidence of the declarations of the alleged conspirators.— Serrato v. State, (Tex. Cr. R.), 171 S. W. 1133. Where a judgment is assigned by an alleged agent his authority to so do must be shown before the assignment will be admissible in evidence. — Needham v. Cooney, (Tex. Civ. App.), 173 S. W. 979. It is incumbent upon the party seeking to introduce sec- ondary evidence of the contents of an alleged lost docu- ment to first show its loss. — Bunker v. State, (Tex. Cr. R.). 177 S. W. 108. Utah. If the acts or conduct of alleged conspirators are reasonably indicative that a conspiracy exists it is suffl- 718 BURDEN OF PROOF cient to admit evidence of their acts and declarations. The conspiracy need not be established beyond peradven- ture.— State v. Inlow, 44 Utah 485, 141 P. 530. Washington. Where it sought to make documents issued by an agent evidence against the principal it is necessary to show the authority of the agent. — McDonald v. New World Life Ins. Co., 76 Wash. 488, 136 P. 702. Article 97A. BURDEN OF PROOF WHEN PARTIES STAND IN A FIDUCIARY RELATION. When persons stand in a relation to each other of such a nature that the one reposes confidence in the other, or is placed by circumstances under his authority, control or influence, when the ques- tion is as to the validity of any transaction be- tween them from which the person in whom con- fidence is reposed or in whom authority or influ- ence is vested derives advantage, the burden of proving that the confidence, authority or influ- ence was not abused, and that the transaction was in good faith and valid, is on the person in whom such confidence or authority or influence is vested, and the nature and amount of the evidence required for this purpose depends upon the nature of the confidence or authority, and on the char- acter of the transaction, (a) BURDEN OF PROOF IN FIDUCIARY RELATIONS. In General. Arkansas. Where a parent accepts a conveyance from his daughter, the deed will not be permitted to stand unless (a) [4 Wigmore Ev„ § 2503.] BURDEN OF PROOF 719 the transaction is characterized by the utmost fairness and good faith on the part of the parent. — Giers v. Hud- son, 102 Ark. 232, 143 S. W. 916. Where a controversy arises through dealings between guardian and ward, the latter must clear the transaction from every shadow of suspicion. — Waldstein v. Barnett, 112 Ark. 141, 165 S. W. 459. Nebraska. A relation of trust and confidence arises and continues with the existence of the marital tie between parties, and where -the contract of the wife to or with the husband is sought to be enforced, and the coverture is in- terposed as a defense, coupled with the plea of the exer- cise by the husband of undue influence by the husband on the wife in obtaining the execution of such contract, the burden is on the plaintiff to establish that no unfair advantage was taken, or undue influence exercised, by the husband.— Stenger Benev. Ass'n v. Stenger, 54 Neb. 427, 74 N. W. 846. Washington. Where an attorney obtains a benefit from dealing with trust property of his client, the burden is on the attorney to show that his dealing with the subject of the trust was free from all reasonable grounds for sus- picion, although the allegations of wrong-doing are made by the client— Hetrick v. Smith. 67 Wash. 664, 122 P. 363. Dealings Between Attorney and Client. Dealings between attorney and client, whereby the for- mer obtains a benefit at the expense of the latter, will be closely scrutinized, and will not be upheld where it ap- pears that the attorney obtained an unfair advantage over his client: Arkansas: Thweatt v. Freeman. 73 Ark. 575, 84 S. W. 720 (burden on attorney to show absence of undue in- fluence in purchase of land from client) ; Weil v. Fineran. 78 Ark. 87, 93 S. W. 568 (action by attorney for breach of contract of employment, plaintiff claiming that she was induced by fraud to enter into it; burden on plaintiff to show consent was obtained). 720 BURDEN OF PROOF California: Felton v. Le Breton, 92 Cal. 457, 28 P. 490 (burden on attorney to show that he fully advised client of legal effects and consequences of an act whereby there is a benefit to attorney at expense of client) ; Cooley v. Miller & Lux, 156 Cal. 510, 105 P. 981 (contract between attorney and client presumed to be made under undue in- fluence) ; Black v. Riley, 20 Cal. App. 199, 128 P. 764 (same); Cooley v. Miller & Lux, 168 Cal. 120, 142 P. 83 (any transaction between attorney and clients after the employment, whereby he gains any advantage, would be attended by the presumption that it was entered into with- out sufficient consideration and by undue influence) ; Me- tropolis Trust & Sav. Bank v. Monnier, 169 Cal. 592, 147 P. 265 (prima facie case in support of the defense that the note and mortgage sued on had been obtained through the exercise of undue influence would be made out by proof that the payee, prior to and at the time he took such note and mortgage, was acting as attorney for the maker). Oklahoma: Barker v. Wiseman, (Okl.), 151 P. 1047 (every presumption against a lawyer to whom was deeded land by a poor ignorant freedman who had consulted him con- cerning a forged deed to the land). Texas: Laybourne v. Bray & Shifflett, (Tex. Civ. App.), 190 S. W. 1159 (where a new contract for increased com- pensation was entered into after the employment of the attorney, it was presumptively without consideration and void, and the burden rested on the attorney to show that the contract was fairly made, was reasonable, and that no advantage was taken by reason of the confidential rela- tion existing between the parties, and that his client en- tered into it with full knowledge of the facts). Washington: Hetrick v. Smith, 67 Wash. 664, 122 P. 363 (stock transferred to attorney as security for his indorse- ment of a note and compensation for his services; attor- ney has the burden of showing that his dealings with the stock were characterized by the utmost integrity). PRESUMPTIONS AND ESTOPPELS 721 CHAPTER XIV. ON PRESUMPTIONS AND ESTOPPELS. Article 98. presumption of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within such a time after the dissolution thereof and before the celebration of another valid marriage, that his mother's hus- band could have been his father is conclusive proof that he is the legitimate child of his moth- er's husband, unless it can be shown either that his mother and her husband had no access to each other at any time when he could have been begotten, regard being had both to the date of the birth and to the physical condi- tion (a) of the husband, or that the circumstances of their access (if any) were such as to render it highly improbable that sexual intercourse took place between them when it occurred. Neither the mother nor the husband is a com- petent witness as to the fact of their having or not having had sexual intercourse with each other, nor are any declarations by them upon that subject deemed to be relevant facts when the legitimacy of the woman's child is in question, (a) [This, doubtless, is intended to refer to the impotency of the husband. Hargrave v. Hargrave, 9 Beav. 552.] 722 PRESUMPTIONS AND ESTOPPELS whether the mother or her husband can be called as a witness or not, provided that in applications for affiliation orders when proof has been given of the non-access of the husband at any time when his wife's child could have been begotten, the wife may give evidence as to the person by whom it was begotten, (b) PRESUMPTION OF LEGITIMACY. A child born in wedlock is presumed to be legitimate. —Mills' Estate, In re, 137 Cal. 298, 70 P. 91; Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848; Grates v. Garcia, 20 N. M. 158, 148 P. 493; Foote v. State, (Tex. Cr. R.), 144 S. W. 275; McAllen v. Alonzo, 46 Tex. Civ. App. 449, 102 S. W. 475. California. A child born in lawful wedlock is presumed to be the child of the husband, although the wife was preg- nant at the time of her marriage, but this presumption may be rebutted. In cases of ante-nuptial conceptions slighter proof is required to repel the presumption of legitimacy. — Baker v. Baker, 13 Cal. 87. The provisions of the Code, (§ 1962, sub. div. 5), re- specting the presumption of legitimacy, presupposes a marriage, and if there is, in legal contemplation, a mar- riage, the presumption of legitimacy of the issue follows. (b) R. v. Luffe, 8 Ea. 207: Cope v. Cope, 1 Mo. & Ro. 272- 274; Legge v. Edmonds, 25 L. J. Eq. 125, see p. 135; R. v. Mansfield, 1 Q. B. 444; Morris v. Davies, 3 C. & P. 215; [4 Wigmore Ev„ § 2527; Phillips v. Allen, 2 Allen (Mass.), 453. The testimony of the mother in bastardy cases is variously regulated in the different states. Land Co. v. Bonner, 75 111. 315; Stoke v. Worthingham, 23 Minn. 528; but see Herr- ing v. Goodson, 43 Miss. 392.] I am not aware of any decision as to the paternity of a child born say six months after the death of one husband, and three months after the mother's marriage to another. Amongst common soldiers in India such a question might easily arise. The rule in European regiments is that a widow not remarried within the year (it used to be six months) must leave the regiment: the result was and is that widowhoods ars usually very short. PRESUMPTIONS AND ESTOPPELS 723 (Code, § 193.) Which presumption can only be disputed by the husband or wife or their descendants. (Code, § 195.)— Campbell's Estate, In re, 12 Cal. App. 707, 108 P. 669. New Mexico. The presumption of law being that a child born in lawful wedlock is legitimate, the mother of such a child is not a competent witness to prove that such child was not begotten by the man who became her hus- band before its birth.— Grates v. Garcia, 20 N. M. 158, 148 P. 493. Oklahoma. The presumption is in favor of legitimacy. Direct evidence of marriage of the parents is not neces- sary, and after a long lapse of time, the parties being dead, the legitimacy of a child shown to have been born of a certain man and woman is presumed, although there is no evidence of their marriage. — Locust v. Carruthers, 23 Okl. 373, 100 P. 520. Rebuttal of Presumption. Arkansas. The presumption that a child born in lawful wedlock is legitimate may be rebutted by clear and sat- isfactory evidence.— Kennedy v. State, 117 Ark. 113, 173 S. W. 842. Oklahoma. For the purpose of rebutting the presumption of legitimacy, it is permissible to prove any fact or state of circumstances which render it impossible that the hus- band could have been the father of the child. But the presumption of legitimacy is so strong that the evidence to overcome it must be distinct, strong, satisfactory and conclusive.— Bell v. Territory, 8 Okl. 75, 56 P. 853. Oregon. All presumptions are in favor of the legitimacy of a child born in lawful wedlock, and where this pre- sumption hinges upon the legality of the marriage, it has been held in support of the presumption that where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. — Magginson v. Magginson, 21 Or. 387, 28 P. 388. 724 PRESUMPTIONS AND ESTOPPELS TESTIMONY AS TO LEGITIMACY. Arkansas. A wife may testify to any fact tending to prove the illegitimacy of the child, except the single fact of non- access of her husband. — Kennedy v. State, 117 Ark. 113, 173 S. W. 842; Liles v. State, 117 Ark. 408, 174 S. W. 1196. California. The presumption arises although the wife was pregnant at the time of the marriage, but slighter proof will repel it. In an action by the husband for a divorce, the confession of the wife that a stranger was the father of her child, conceived before marriage, was held admis- sible.— Baker v. Baker, 13 Cal. 87. The declarations of a deceased father are admissible to prove the legitimacy or illegitimacy of his children.— Pearson v. Pearson, 46 Cal. 609; Heaton's Estate, In re, 135 Cal. 385, 67 P. 321. Neither spouse can testify that while living together they did not have sexual intercourse. — Mills' Estate, In re, 137 Cal. 298, 70 P. 91. Nonaccess by the husband being clearly shown, or at least to a reasonable certainty, the wife may testify as to the paternity of children born to her thereafter. — Girds' Estate, In re, 157 Cal. 534, 108 P. 499. Kansas. The presumption of legitimacy can only be over- come by the clearest and most conclusive evidence of non- access of the husband, and cannot be overthrown by the assertions of a putative father that the child was begot- ten by him. — Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848. Oklahoma. Neither the husband nor wife will be allowed to give evidence tending to bastardize the offspring of the wife born during wedlock. — Bell v. Territory, 8 Okl. 75, 56 P. 853. Oregon. The declarations or acts of the putative mother are competent evidence of illegitimacy. — State v. McDon- ald, 55 Or. 419, 104 P. 967. Texas. Neither the husband or wife can testify to any fact which would render a child born in lawful wedlock a bastard.— Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399; Meyer v. State, (Tex. Cr. R.), 41 S. W. 632. PRESUMPTIONS AND ESTOPPELS 725 At common law a married woman could not testify to intercourse with another, or nonaccess of her husband on the question of bastardy or illegitimacy of her child. Neither spouse can testify as to nonaccess, but others may testify as to the husband's impotency, or absence for such and at such time as would render it impossible that he could be the father. — Foote v. State, (Tex. Cr. R.), 144 S. W. 275; McAllen v. Alonzo, 46 Tex. Civ. App. 449, 102 S. W. 475. Article 99. presumption of death from seven years' absence. A person shown not to have been heard of for seven years by those (if any) who if he had been alive would naturally have heard of him, is pre- sumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any par- ticular time is upon the person who asserts it. (a) There is no presumption as to the age at which a person died who is shown to have been alive at a given time, or as to the order in which two or more persons died who are shown to have died in the same accident, shipwreck, or battle, (b) (a) McMahon v. McElroy, 5 Ir. Rep. Eq. 1; Hopewell v. De Pinna, 2 Camp. 113; Nepean v. Doe, 2 S. L. C. 562, 681; Nepean v. Knight, 2 M. & W. 894, 912; R. v. Lumley, L. R. 1 C. C. R. 196; and see the caution of Lord Denman in R. v. Harborne, 2 A. & E. 544. All the cases are collected and considered In re Phene's Trust, L. R. 5 Ch. App. 139; [4 Wig- more Ev., § 2531]. The doctrine is also much discussed in Prudential Assurance Company v. Edmonds, L. R. . 2 App. Cas. 487. The principle is stated to the same effect as in the text In lie Corbishley'a Trusts, L. R. 14 Ch. Div. 846. (b) Wing v. Angrave, 8 H. L. C. 183, 198; and see authori- ties In last note; [4 Wigmore Ev., § 2532], 726 PRESUMPTIONS AND ESTOPPELS PRESUMPTION OF DEATH FROM ABSENCE. Arkansas. Under the statute (Kirby's Digest, § 5178), death will be presumed after the lapse of five years. — Goset v. Goset, 112 Ark. 47, 164 S. W. 759. Kansas. At the close of a continuous absence of seven years, during which time nothing is heard of the absent person, death will be presumed, but taking into consider- ation the circumstances, the jury may sometimes infer death before the expiration of the full seven years. — Ryan v. Tudor, 31 Kan. 366, 2 P. 797. Unexplained absence for more than seven years is not conclusive evidence of death, but simply raises a presump- tion, and before it obtains there must be a lack of infor- mation concerning the absentee on the part of those likely to hear from him after diligent inquiry extended to all places where information is likely to be obtained. — Mod- ern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100; Id., 77 Kan. 401, 94 P. 788; Renard v. Bennett, 76 Kan. 848, 93 P. 261; Thompson v. Millikin, 93 Kan. 72, 143 P. 430. In order that the presumption that a person once shown to have been alive, continues to live the ordinary length of time, may be overcome by the presumption of death arising from seven years' unexplained absence, there must be a lack of information concerning the absentee after diligent inquiry which should extend to all those places where information is likely to be obtained, and to all those persons who, in the ordinary course of events, would be likely to receive tidings if the party were alive. — Mod- ern Woodmen v. Gerdom, 72 Kan. 391, 82 P. 1100; Id., 77 Kan. 401, 94 P. 788; Renard v. Bennett, 76 Kan. 848, 93 P. 261. Death may be inferred within seven years where it ap- pears that when last heard from the party was in contact with some specific peril likely to produce death, or that he disappeared under circumstances inconsistent with a continuation of life. — Caldwell v. Modern Woodmen, 89 Kan. 11, 130 P. 642. Unexplained absence for more than seven years is not conclusive evidence of death, but simply raises a presump- tion of death subject to rebuttal and before it obtains PRESUMPTIONS AND ESTOPPELS 727 there must be a lack of information concerning the ab- sentee on the part of those likely to hear from him after diligent inquiry extended to all places where information is likely to be obtained. — Thompson v. Millikin. 93 Kan. 72, 143 P. 430. Nebraska. The presumption of life with respect to a per- son of whom no account be given ends at the expiration of seven years from the time he was last known to be living. — Holdredge v. Livingston. 79 Neb. 238, 112 N. W. 341; Rosenerans v. Modern Woodmen, 97 Neb. 568, 150 X \Y. 630; Mitchell v. Kaufman, 95 Neb. 108. 145 N. W. 247. The established presumption of fact from the disappear- ance of an individual under ordinary circumstances, from whom his relatives and acquaintances have never after- wards heard, is that he continues to live for seven years after his disappearance, such presumption is not conclu- sive and taking all the circumstances into consideration death may sometimes be inferred to have occurred at an earlier date.— Cox v. Ellsworth. 18 Neb. 664, 26 N. W. 460; Coe v. Knights & L. of Security, 96 Neb. 130, 147 X. \Y. 112. North Dakota. To raise the presumption of death under the statute, (§ 7302, R. C. 1905), it must be shown that the absentee has been unheard of for the full period of seven years, but where it appears that a man left his former home place and located elsewhere with the intent to de- sert his family, the presumption is overcome, and to create a new presumption of death, it must be shown that he has disappeared from his new and last home. — Wright v. Jones. 23 X. D. 191. 135 N. W. 1120. Oklahoma. It is a rule of common law that a person shown not to be heard of for seven years by those, if any. who, if he had been living, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of. without assuming his death. Ordinarily to fix the pre- sumption of death there must he proof of inquiry, ex- hausting all competent resource of information made of the persons and at the places where news of him, if living, would most probably he had. A distinction in the appli- 728 PRESUMPTIONS AND ESTOPPELS cation of the rule should be made between those of tender years and adults, and it has been held that the presump- tion does not arise where it is improbable there would have been any communication with home. — Modern Woodmen v. Ghromley, 41 Okl. 532, 139 P. 306. Oregon. Ordinarily a person who has been absent for seven years without having been heard from is presumed to be dead. — Murray v. Murray, 6 Or. 17. South Dakota. The statute as to presumption of death, (Comp. Laws, § 5312), applies only where the person him- self withdraws from home and remains beyond the reach of reasonable inquiry for seven years. — Burnett v. Cos- tello, 15 S. D. 89, 87 N. W. 575. Texas. The common law rule as to the presumption of de«th from seven years' absence has, to some extent, been changed by statute. But mere failure of strangers to hear from or of one, or the fact that his present whereabouts may not be known to one of his acquaintances in a place of his former residence, who is not shown to have made any inquiry about him, does not establish the fact of ab- sence for seven years successively as required by the statute. — State v. Teulon, 41 Tex. 249; Gorham v. Sette- gast, (Tex. Civ. App.), 98 S. W. 665. The presumption of death after seven years' absence without tidings arises when the party whose death is in question has been absent from his last known place of residence or domicile, without any knowledge or informa- tion being heard of him by his friends and relations, or among those who were acquainted with him, or who for some reason it should be supposed would have heard from or about him, if living. This common law rule has, to some extent, been changed by statute. Under the statute, mere failure of strangers to hear from or of one, or the fact that his present whereabouts may not be known to one of his acquaintances in a place of his former residence, who is not shown to have made any inquiry about him, does not establish the fact of absence for seven years suc- cessively as required by the statute. — State v. Teulon, 41 Tex. 249. PRESUMPTIONS AND ESTOPPELS 729 A presumption of death is raised by the absence of a person from his domicile when unheard of for seven years. Absence, in this connection, means that a person is not at the place of his domicile, and that his actual residence is unknown. But removal alone is not sufficient, and it must further appear that he has disappeared from his domicile and from the knowledge of those with whom he would naturally communicate. That his whereabouts have been unknown for seven years or upward, is necessary to raise the presumption. But when he has removed his dom- icile to another place, wen known, this is a change of residence, and absence from the last domicile is that upon which the presumption must be built. — Gorham v. Sette- gast, (Tex. Civ. App.), 98 S. W. 665. Under the statute (Art. 5707, R. S. 1911), mere proof of absence of one from his home for seven successive years raises a presumption of death, without proof that the absent one had not been heard from by his relatives or friends, which can be destroyed by proof of the exis- tence of the absent one within that time. — Woodmen of the World v. Ruedrich, (Tex. Civ. App.), 158 S. W. 170. The absence of a person for seven years, without being heard of, authorizes the presumption that he is dead. — State v. Teulon, 41 Tex. 249; Primm v. Stewart, 7 Tex. 178; Wells v. Margraves, (Tex. Civ. App.), 164 S. W. 881. Time of Death. Colorado. The presumption of death arising from absence raises no presumption of the time of death. — New York Life Ins. Co. v. Hoick. 59 Colo. 416, 151 P. 916. Kansas. There is no presumption as to the time of death. — Caldwell v. Modern Woodmen. 89 Kan. 11, 130 P. 642. Washington. The presumption of death attaches when a party has been absent for seven years without tidings of his existence, but the time of death is a question of fact after taking into consideration all of the circumstances. —Butler v. Supreme Court I. O. F., 53 Wash. 118. 101 P. 481. 730 PRESUMPTIONS AND ESTOPPELS ADMINISTRATION ON ESTATE OF LIVING PERSON. California. After administration had been granted upon the estate of a supposed deceased person, and the admin- istration closed, and the administrator discharged, the sup- posed decedent appeared in person and filed his petition to vacate and annul the proceedings; and an order was made granting the motion. Held, there is no doubt of the correctness of the court's action. Administration upon the estate of a living person is totally void. — Stevenson v. Superior Court, 62 Cal. 60. Washington. After an unexplained absence for seven years a party cannot maintain ejectment against a bona fide purchaser of his property at a sale thereof made by the administrator of his estate. — Scott v. McNeal, 5 Wash. 309, 31 P. 873; reversed,. 154 U. S. 34, 14 Supt. Ct. 1108. PRESUMPTION AS TO SURVIVORSHIP. California. The statute of presumptions relating to sur- vivorship where two persons perish in the same calamity, only applies where the relative times of the death of the persons cannot be shown by direct or circumstantial evi- dence or both. — In re Louck's Estate, 160 Cal. 551, 117 P. 673; Grand Lodge A. O. U. W. v. Miller, 8 Cal. App. 25, 96 P. 22. Colorado. Where the husband and wife are killed in the same accident, and there is no proof on the subject, the legal presumption is that they died co-instantaneously. — Kansas 'Pacific Ry. Co. v. Miller, 2 Colo. 442. Kansas. There is no presumption in law of survivorship in the case of persons who perished by a common disaster. —Russell v. Hallett, 23 Kan. 276. Texas. The common law does not under any circum- stances, even in the case where two or more persons per- ish by the same calamity, indulge in presumptions of sur- vivorship.— Cook v. Cassell, 81 Tex. 678, 17 S. W. 385; Fitzgerald v. Ayres, (Tex. Civ. App.). 179 S. W. 289. PRESUMPTIONS AND ESTOPPELS 731 Article 100. presumption of lost grant, (a) When it has been shown that any person has, for a long period of time, exercised any proprie- tary right which might have had "a lawful origin by grant or license from the Crown or from a private person, and the exercise of which might and naturally would have been prevented by the persons interested if it had not had a lawful ori- gin, there is a presumption that such right had a lawful origin and that it was created by a proper instrument which has been lost, (b) Illustrations. (a) The question is, whether B is entitled to recover from A the possession of lands which A's father and mother suc- cessively occupied from 1751 to 1792 or 1793, and which B had occupied (without title) from 1793 to 1809. The lands formed originally an encroachment on the Forest of Dean. The undisturbed occupation for thirty-nine years raises a presumption of a grant from the Crown to A's father. 1 (b) A fishing mill-dam was erected more than 110 years before 1861 in the River Derwent, in Cumberland (not being navigable at thai place), and was used for more than sixty years before 1861 in the manner in which it was used in 1861. This raises a presumption, that all the upper pro- prtetors whose rights were Injuriously affected by the dam, had granted a right to erect it.-' (c) A builds a windmill near L'.'s land in 1829, and enjoys a free current of air to it over B*s land as of right, and without interruption till I860. This enjoyment raises no (a) The subject of the doctrine of lost grants is much considered in Angus v. Dal ton, I., li. 3 Q. B. !> si. This case is now (Feb., 1881.) before the Rouse of Lords. (b) [4 Wigmore Ev., 8 2522.] KJoodtitle v. Baldwin, li Ba. 488. The presumption was rebutted in this case by an express provision of 20 Ch. II. avoiding »f the Forest of Dean See also Doe d Devine v. Wilson, in Moo. IV ''. 502. onneld v. Lonsdale, I.. Et. 5 C P. 657. 732 PRESUMPTIONS AND ESTOPPELS presumption of a grant by B of a right to such a current of air, as it would not be natural for B to interrupt it. 8 (d) No length of enjoyment (by means of a deep well) of water, percolating through underground undefined passages, raises a presumption of a grant from the owners of the ground under which the water so percolates of a right to the water. 4 PRESUMPTION OF LOST GRANT. Arkansas. Where parties and those under whom they claim have been in the open, peaceable, continuous, and adverse possession of the land in controversy for many years, cultivating and improving the same and paying taxes thereon, it will be presumed that there has been a proper grant of the lands.- — Carter v. Goodson, 114 Ark. 62, 169 S. W. 806; Reed v. Money, 115 Ark. 1, 170 S. W. 478. California. Where a purchaser at a sheriff's sale had been in undisturbed possession of the land for several years under his deed, it was held that slight proof that an exe- cution issued on the judgment under which the sale was made would suffice. — Russell v. Harris, 38 Cal. 426. Long continued and undisturbed possession of lands by a party, and those under whom he claims, will raise a presumption that the holding had been under a convey- ance. — Bryan v. Tormey, (Cal.), 21 P. 725. Where it appears that there was an open, visible, con- tinuous and unmolested use of a way for more than thirty years, it will be presumed that the use was under a claim of right.— Fleming v. Howard, 150 Cal. 28, 87 P. 908. Kansas. Exclusive possession and occupancy for ten years under a claim of absolute title, is sufficient to raise the inference of a title in fee simple in the occupant. — Missouri River, F. S. & G. R. Co. v. Owen, 8 Kan. 409. Nebraska. Long continued possession of lands, coupled with acts of ownership, is sufficient to raise the presump- tion of a grant from the record owner. — Flanagan v. Mathieson, 70 Neb. 223, 97 N. W. 287. 3 Webb v. Bird, 13 C. B. n. s. 841. ^Chasemore v. Richards, 7 H. L. C. 349; [Roath v. Driscoll, 20 Conn. 533; Wheatley v. Baugh, 25 Pa. St. 528.] PRESUMPTIONS AND ESTOPPELS 733 Where it appears that a way has been used continuously for many years it will be presumed that it was under a claim of right.— Majerus v. Barton, 92 Neb. 685, 139 N. W. 208; Moll v. Hagerbaumer, 98 Neb. 555, 153 N. W. 560. Evidence of ten years' use by the public of a road through cultivated land with the knowledge and acquies- cence of the owner, raises the presumption of an implied dedication as a public highway. — Rube v. Sullivan, 23 Neb. 779, 37 N. W. 666; Kendall-Smith Co. v. Lancaster Co., 84 Neb. 654, 121 N. W. 960. Texas. Long continued use and possession of land is alone sufficient upon which to base the presumption that a deed was, in fact, at some time executed covering the land.— Taylor v. Watkins, 26 Tex. 688. This is a presumption of fact and not of law. — Herndon v. Vick, 89 Tex. 469, 35 S. W. 141; Herndon v. Burnett, 21 Tex. Civ. App. 25, 50 S. W. 581; Carlisle v. Gibbs, 44 Tex. Civ. App. 189, 98 S. W. 192; Masterson v. Harrington, (Tex. Civ. App.), 145 S. W. 626. Presumptions arise from certain circumstances of the existence of such muniments of title as are necessary to give lawful origin to a title long openly asserted on one side, with acquiescence in such claim on the other. — Le Blanc v. Jackson, (Tex. Civ. App.), 161 S. W. 60. Utah. Where one has been in undisturbed possession of a mining claim for several years under a deed alleged to have been lost, and the grantors are dead or cannot be found, he will not be required to furnish a high degree of proof of the execution and delivery of the deed to him and of its loss.— Scott v. Crouch. 24 Utah 377. 67 P. 1068. Auticlk 101.* presumption of regularity am) ()1 deeds to ( 'omi'i.l ik title. When any judicial or official act is shown to have been done in a manner substantially regu- •See note at end of this article, and Macdougall v. Pur- rier, 3 Bligh, N. C. 433. R. v. Cresswell, L. R. i Q. B. D. (C. C. R.) 446, is a recent illustration of the effect of this presumption. 734 PRESUMPTIONS AND ESTOPPELS lar, it is presumed that formal requisites for its validity were complied with. When a person in possession of any property is shown to be entitled to the beneficial ownership thereof, there is a presumption that every instru- ment has been executed which it was the legal duty of his trustees to execute in order to perfect his title, (a) PRESUMPTION OF REGULARITY. Where a person, in his official capacity, has done or should do a certain thing, it will be presumed that the act was or will be performed in a regular and valid manner: Arizona: Chenoweth v. Budge, 16 Ariz. 422, 145 P. 406. Arkansas: Belcher v. Harr, 94 Ark. 221, 126 S. W. 714; Appling v. State, 95 Ark. 185, 128 S. W. 866; Crawford County Bank v. Baker, 95 Ark. 438, 130 S. W. 556. California: Spaulding v. Howard, 121 Cal. 194, 53 P. 563; Powers v. Hitchcock, 129 Cal. 325, 61 P. 1076; Rogers v. De Cambra, 132 Cal. 502, 60 P. 863. Colorado: Smith v. Pipe, 3 Colo. 187; Evans v. Young, 10 Colo. 316, 15 P. 424; Woods v. Sargent, 43 Colo. 268, 95 P. 932. Idaho: Meservey v. Gulliford, 14 Ida. 133, 93 P. 780; Sims v. Milwaukee Land Co., 20 Ida. 513, 119 P. 37. Kansas: Valley Township v. King Iron B. & Mfg. Co., 4 Kan. App. 622, 45 P. 660; Gibson v. Trisler, 73 Kan. 397, 85 P. 413. Montana: Gehlert v. Quinn, 35 Mont. 451, 90 P. 168; State v. District Court, 40 Mont. 17, 104 P. 872. Nebraska: Brunke v. Gruben, 84 Neb. 806, 122 N. W. 37; McCoy v. City of Omaha, 88 Neb. 316, 129 N. W. 429; John- ston v. Frank, 97 Neb. 190, 149 N. W. 409. (a) Doe d. Hammond v. Cooke, 6 Bing. 174, 179; Briggs v. Hervey, 130 Mass. 186. PRESUMPTIONS AND ESTOPPELS 735 Nevada: Knox v. Kearney, 37 Nev. 393, 142 P. 526. New Mexico: Eldodt v. Territory, 10 N. M. 141, 61 P. 105; State v. Romero, 17 N. M. 81, 124 P. 649. North Dakota: Pine Tree Lumber Co. v. City of Fargo, 12 N. D. 360, 96 N. W. 357; Shane v. Peoples. 25 N. D. 188, 141 N. W. 737. Oklahoma: Watkins v. Havighorst, 13 Okl. 128. 74 P. 318; Christ v. Fent, 16 Okl. 375. 84 P. 1074; Leedy v. Brown, 27 Okl. 489, 113 P. 177. Oregon: Stephenson v. Van Blokland, 60 Or. 247, 118 P. 1026; Harris v. Harsch, 29 Or. 562, 46 P. 141; McLeod v. Lloyd, 43 Or. 260, 71 P. 795. South Dakota: Fullerton Lumber Co. v. Tinker, 22 S. D. 427, 118 N. W. 700; Spencer v. Lyman, 27 S. D. 471, 131 N. W. 802; Richelson v. Mariette, 34 S. D. 573, 149 N. W. 553. Texas: Finberg v. Gilbert, 104 Tex. 539, 141 S. W. 82; Stolley v. Lilwall, 38 Tex. Civ. App. 48, 84 S. W. 689; Levy v. Persons, (Tex. Civ. App.), 145 S. W. 286. Utah: Rio Grande Western Ry. Co. v. Stringham, 38 Utah 113, 110 P. 868; Tooele Building Ass'n v. Tooele High School Dist., 43 Utah 362, 134 P. 894; Union Savings & Inv. Co. v. District Court, 44 Utah 397, 140 P. 221. Washington: State v. Middle Kittitas Irr. Dist., 56 Wash. 488, 106 P. 203; State v. City of Spokane, 64 Wash. 388, 116 P. 878. Wyoming: State v. State Board of Land Com'rs, 7 Wyo. 478, 53 P. 292; Lethbridge v. Lauder, 13 Wyo. 9, 76 P. 682; Reynolds v. Morton, 22 Wyo. 174, 136 P. 795. Nebraska. A bond filed and acted upon as a basis for pro- ceedings, will be presumed, twenty years afterwards, to have been approved, though no record of the approval is shown.— Seng v. Payne, 87 Neb. 812, 128 N. W. 626. PRESUMPTION OF OWNERSHIP OR TITLE. Arkansas. Where it appears that a person and his prede- cessors in title have long been in undisturbed possession of lands, it will be presumed that the patent upon which his title is based was regularly issued to the proper person. 736 PRESUMPTIONS AND ESTOPPELS —Osceola Land Co. v. Chicago Mill & L. Co., 84 Ark. 1, 103 S. W. 609; Stricklin v. Moore, 98 Ark. 30, 135 S. W. 360. California. Proof of actual possession of land will raise a presumption of ownership. — Morris v. Clarkin, 156 Cal. 16, 103 P. 180; Davis v. Crump, 162 Cal. 513, 123 P. 294. Kansas. Actual possession of real estate is prima facie evidence of title to same. — Gilmore v. Norton, 10 Kan. 491. Nevada. Bare possession of property is sufficient to indi- cate ownership. — Scorpion S. M. Co. v. Marsano, 10 Nev. 378. New Mexico. Possession of land raises a presumption of ownership.— Harrison v. Gallegos, 13 N. M. 1, 79 P. 300. Continuous possession of land coupled with the produc- tion of an ancient record of a purported deed thereto, is sufficient to raise a presumption of the execution of a deed to the land.— Union Land & G. Co. v. Arce, 21 N. M. 115, 152 P. 1143. North Dakota. Possession of lands furnishes a presump- tion of title, but to support an action to determine ad- verse claims it must have continued for the length of time required by the statute to ripen into title or until adverse claims are barred by the statute of limitations. — Goss v. Herman, 20 N. D. 295, 127 N. W. 78. Texas. Where a deed recites that the grantor is one of the heirs of the deceased owner, and that he has power from the other heirs to convey their title, after a lapse of time, coupled with acts of ownership by the grantee and the non-assertion of any opposing claim, competent power in such grantor from the other heirs may be pre- sumed. — Veramendi v. Hutchins, 48 Tex. 552; Grant v. Searcy, (Tex. Civ. App.), 35 S. W. 861; Maxson v. Jennings, 19 Tex. Civ. App. 700, 48 S. W. 781. In a collateral attack upon a sale of lands by an exe- cutor, it will be presumed that the order of sale was properly made. — Corley v. Goll, 8 Tex. Civ. App. 184, 27 S. W. 820; Daimwood v. Driscoll, (Tex. Civ. App.), 151 S. W. 621. PRESUMPTIONS AND ESTOPPELS 737 PRESUMPTION AS TO SUNDRY MATTERS. Where a certain state of facts is proved to have existed, the legal presumption is that the same state of things con- tinues to exist until such presumption is rebutted by proof or by some counter presumption arising from lapse of time or some other circumstance: California: Kidder v. Stevens, 60 Cal. 414 (ownership of land; presumed to continue until the contrary appears); People v. Francis, 38 Cal. 183 (insanity; only of habitual insanity, not of spasmodic or temporary mania) ; People v. Lane, 101 Cal. 513, 36 P. 16 (presumption of continu- ance of prior insanity up to time of homicide dependent on the nature of the disease); People v. Schmitt, 106 Cal. 8, 39 P. 204 (insanity; continuance presumed, provided it ap- pears to be of such duration and character as to indicate the probability of its continuance) ; People v. Quong Sing, 20 Cal. App. 26, 127 P. 1052 (the maxim that a thing once proved to exist continues as long as is usual with things of that nature does not work back; trespass on land not presumed to exist at a long past time). Kansas: State v. Reddick, 7 Kan. 151 (unsoundness of mind presumed to continue unless rebutted); Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779 (presumption of continu- ance of insanity arising from an adjudication thereof may be rebutted). Montana: Murphy's Estate, In re, 43 Mont. 353, 116 P. 1004 (continuance of insanity not presumed in cases of oc- casional or intermittent insanity). Nevada: Table Mt. Min. Co. v. Waller's Defeat Min. Co., 4 Nev. 218, 97 Am. Dec. 526 (judge's interest in defendant's case a year before). South Dakota: Davis v. Davis, 24 S. D. 474, 124 N. W. 715 (presumption of continuance of insanity rebuttable). Texas: Ralls v. Parish, (Tex. Civ. App.), 151 S. W. 1089 (not presumed that houses in a newly built portion of a town were in the same situation in 1910 as in 1891). Washington: Collins v. Denny Clay Co., 41 Wash. 136, 82 P 1012 (ownership of corporate stock). 738 PRESUMPTIONS AND ESTOPPELS Nevada. A debt existing after failure to pay at the right time is presumed to continue. — O'Neill v. New York Min- ing Co., 3 Nev. 141. Oklahoma. Where an act is done which can be done le- gally only after the performance of some prior act, proof of the latter carries with it a presumption of the due per- formance of the prior act. — Cyr v. Walker, 29 Okl. 281, 116 P. 931. NOTE XXXVII. (To Article 101.) The first part of this article is meant to give the effect of the presumption, omnia. esse rite acta; 1 Ph. Ev. 480, etc.; T. E. ss. 124, etc.; Best, s. 353, etc. This, like all presump- tions, is a very vague and fluid rule at best, and is applied to a great variety of different subject-matters. Article 102.* estoppel by conduct. When one person by any thing which he does or says, or abstains from doing or saying, inten- tionally (a) causes or permits another person to believe a thing to be true, and to act upon such belief otherwise than but for that belief he would have acted, neither the person first mentioned nor his representative in interest is allowed, in any suit or proceeding between himself and such per- son or his representative in interest, to deny the truth of that thing. When any person under a legal duty to any other person to conduct himself with reasonable caution in the transaction of any business neg- lects that duty, and when the person to whom the duty is owing alters his position for the worse ♦See Note at end of Article 105. PRESUMPTIONS AND ESTOPPELS 739 because he is misled as to the conduct of the neg- ligent person by a fraud, of which such neglect is in the natural course of things the proximate cause, the negligent person is not permitted to deny that he acted in the manner in which the other person was led by such fraud to believe him to act. Illustrations. (a) A, the owner of machinery in B's possession, which Is taken in execution by C, abstains from claiming it for some months, and converses with C's attorney without re- ferring to his claim, and by these means impresses C with the belief that the machinery is B's. C sells the machinery. A is estopped from denying that it is B's. 1 (b) A, a retiring partner of B, gives no notice to the cus- tomers of the firm that he is no longer B's partner. In an action by a customer, he pannot deny that he is B's partner. 1 (c) A sues B for a wrongful imprisonment. The impri- sonment was wrongful, if B had a certain original warrant; rightful, if he had only a copy. B had in fact a copy. He led A to believe that he had the original, though not with the intention that A should act otherwise than he actually did; nor did A so act. B may show that he had only a copy and not the original.* (d) A sells eighty quarters of barley to B, but does not specifically appropriate to B any quarters. B sells sixty of the eighty quarters to C. C informs A, who assents to the transfer. C being satisfied with this, says nothing further to B as to delivery. B becomes bankrupt. A cannot in an action by C to recover the barley, deny that he holds for C 'Packard v. Scars, 6 A. & E. 469, 474; [Stephens v. Baird, 9 Cow. (N. Y.). 274; Redd v. Muscogee R. R. Co., 48 Ga. 102; Horn v. Cole, 51 N. H. 287. Readman v. Conway, 126 Mass. 374; Jackson v. Allen. 120 Mass. 64; Forsyth v. Day, 46 Me. 176; Kirk v. Hartman, 63 Pa. St. 97; Jewell v. Paper Co., 101 111. 57; Best Ev. Am. ed. 519 and note.] 2 (Per Parke, B. ) Freeman v. Cooke, 2 Ex. 661. [An in- surance company renews a policy, with full knowledge that certain statements in the application are untrue. It cannot set up the untrue statement as a defense in a suit for the loss. Wetherell v. Mar. Ins. Co., 49 Me. 200. See also May on Insurance, § 502 et seq.] •Howard v. Hudson, 2 E. & B. 1. 740 PRESUMPTIONS AND ESTOPPELS on the ground that, for want of specific appropriation, no property passed to B. 4 (e) A signs blank cheques and gives them to his wife to fill up as she wants money. A's wife fills up a cheque for £50 2s so carelessly that room is left for the insertion of figures before the 50 and for the insertion of words before the "fifty." She then gives it to a clerk of A's to get it cashed. He writes 3 before 50, and "three hundred and" before "fifty." A's banker pays the cheque so altered in good faith. A cannot recover against the banker. 5 (f) A carelessly leaves his door unlocked, whereby his goods are stolen. He is not estopped from denying the title of an innocent purchaser from the thief. 6 ESTOPPEL BY CONDUCT. Ordinarily the doctrine of estoppel is not available unless injury would result otherwise: Arizona: Brutinel v. Nygren, 17 Ariz. 491, 154 P. 1042. Arkansas: Frazer v. State Bank, 101 Ark. 135, 141 S. W. 941; Hoffman v. Rice-Stix D. G. Co., Ill Ark. 205, 163 S. W. 520. California: National Bank of California v. Miner, 167 Cal. 532, 140 P. 27; Mentry v. Broadway B. & T. Co., 20 Cal. App. 388, 129 P. 470. Idaho: Whitley v. Spokane & I. Ry. Co., 23 Ida. 642, 132 P. 121. Kansas: Glover v. Berridge, 86 Kan. 611, 121 P. 1130; Simmons v. Shaft, 91 Kan. 553, 138 P. 614. Montana: Brundy v. Canby, 50 Mont. 454, 148 P. 315; Yellowstone County v. First T. & S. Bank, 46 Mont. 439, 128 P. 596. Oklahoma: Madill State Bank v. Weaver, (Okl.), 154 P. 478; Williams v. Purcell, 45 Okl. 489, 145 P. 1151. 'Knights v. Wiffen, L. R. 5 Q. B. 660; [McNeil v. Hill, Woolw. C. Ct. 96.] 'Young v. Grote, 4 Bing. 253. ' [See numerous cases illus- trative of this point, 2 Greenl. Ev., § 172, and notes.] «Per Blackburn, J., in Swan v. N. B. Australasian Co., 2 H. & C. 181; [1 Greenl. Ev., §§ 24-27, 207]. See Baxendale v. Bennett, 3 Q. B. D. 525. The earlier cases on the subject are much discussed in Jorden v. Money, 5 H. & C. 209-216, 234, 235. PRESUMPTIONS AND ESTOPPELS 741 Texas: West v. City of Houston, (Tex. Civ. App.), 163 S. W. 679; Texas Cent. Ry. Co. v. McCall, (Tex. Civ. App.), 166 S. W. 925. Washington: Western Lumber & P. Co. v. Joslyn, 66 Wash. 524, 120 P. 69; Ford v. Aetna Life Ins. Co., 70 Wash. 29, 126 P. 69. Arizona. Where a party possessing the power of eminent domain enters upon the property of another and expends labor and money, and the latter acquiesces without re- quiring payment or condemnation proceedings, he will be estopped from maintaining trespass or ejectment, and re- stricted to a suit for damages. — Donohue v. El Paso & S. W. R. Co.. 11 Ariz. 293, 94 P. 1091. Where one is sued for a breach of contract to erect a building at a stipulated price, and after the completion of the building its cost exceeded the price agreed upon, he cannot urge in defense that the contract was void for lack of mutuality and consideration. — Wadin v. Czuczka, 16 Ariz. 371, 146 P. 491. One cannot assert a right based upon the failure of another to do a thing which would have been done but for his own conduct. — Bennie v. Becker-Franz Co., 17 Ariz. 198, 149 P. 749. Arkansas. One will not be heard to deny the existence of a certain state of facts which he. either in express terms or by conduct, represented as existing, and which he intended to be acted upon by another in a certain way, ami which was acted upon in good faith by the other, to his detriment. — Harriman v. Meyer, 45 Ark. 40; Rogers v. Galloway Female College, 64 Ark. 627, 44 S. W. 454; Harrison v. Luce. 64 Ark. 583, 43 S. W. 970. To raise an estoppel requires intentional deceit, or at least that gross negligence which is evidence of an intent to deceive, and as it bars the truth to the contrary, it must be strictly proved and nothing can be supplied by intendment.— Arkansas Nat. Bank v. Boles. 97 Ark. 43, 133 S. W. 195. Where the beneficiary of a trust deed represents to one contemplating the purchase of the land covered by it that 742 PRESUMPTIONS AND ESTOPPELS it was put up solely as collateral, he will be estopped from asserting to the contrary after the purchase is consum- mated.— Winter v. Humble, 116 Ark. 588, 172 S. W. 849. Where the grantee in a deed takes the acknowledgment of the wife of the grantor and thereby fails to acquire title to her dower rights, he will be estopped from asserting, as against the heirs of the grantor, that they reimburse him therefor.— Dawkins v. Petteys, 121 Ark. 498, 181 S. W. 901. California. Decedent executed a mortgage securing her note. Afterwards she, together with her husband and son, gave other notes and subsequently conveyed the property to the son who executed a trust deed upon the property securing all the notes. After her death the property was sold under that trust deed, and it was announced at the sale that the title would be free of all incumbrances and the original mortgage released. The husband, who was also her executor, attended the sale, made no objection to the announcement of terms, but demanded, in his in- dividual capacity, that the proceeds be applied first to the payment of the later notes which he had signed, which was done, leaving a deficiency on the original note of de- cedent. It was held that the husband, as executor, was not estopped from denying that the deficiency was a charge against the estate of decedent on the ground that the proceeds of the sale were not first applied on the payment of the original mortgage, or by the release of that mortgage. — Crisman v. Lanterman, 149 Cal. 647, 87 P. 89. Where one relying upon the promise of another to exe- cute a contract required by the statute of frauds to be in writing has altered his position to his injury, the promisor will not be allowed to plead the statute in defense. — Sey- mour v. Oelrichs, 156 Cal. 782, 106 P. 88. A party may not avail himself of his own deliberate omission, or even his unintentional neglect, to advise an- other of a fact vital to the legality of a contract which they had entered into. — Godfrey v. Wisner, 169 Cal. 667, 147 P. 952. PRESUMPTIONS AND ESTOPPELS 743 One is estopped by his silence when he thus leads an- other to believe in the existence of a state of facts in re- liance upon which the other acts to his prejudice. There must be something wilful or culpable in the silence which allows another to place himself in an unfavorable posi- tion on the faith or understanding of a fact which the person remaining silent can contradict. But where knowledge of the matter upon which the party is silent is equally open to both parties there can be no estoppel raised by the silence.— Eltinge v. Santos, 171 Cal. 278, 152 P. 915. Colorado. If a party by conduct has intimated that he consents to an act which has been done, or will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have ab- stained, he cannot question the legality of the act he has so sanctioned to the prejudice of those who have acted on the fair inference to be drawn from his consent. — Divide Canal & R. Co. v. Tenney, 57 Colo. 14, 139 P. 1110. Where a son and his wife were fully informed, urged and acquiesced in the making of an agreement between the son's mother and a third party, whereby the latter was to care for the mother as long as she lived, and in pay- ment therefor the mother conveyed to such third party certain property belonging to the mother, the son and daughter-in-law, after the mother's death, will be estopped from setting aside the conveyance on the ground of men- tal incapacity of the mother. — Green v. Hulse, 57 Colo. 238, 142 P. 416. Parties are estopped to deny the realty of a state of things which they have made to appear to exist, and upon which others have been led to rely. So where a testator declared in his will that a person was his adopted son, his executor is estopped from claiming the contrary. — Dawley v. Dawley's Estate, 60 Colo. 73, 152 P. 1171. Idaho. When silence is so suggestive that, coupled with the fact of knowledge within the mind of him who in honesty and fair dealing ought to speak out, it becomes a fraud on the part of him who should speak, then it is 744 PRESUMPTIONS AND ESTOPPELS sufficient to estop. — Fraber v. Page & M. Lumber Co., 20 Ida. 354, 118 P. 664. If a party by conduct has intimated that he consents to an act which has been done, or will offer no opposition to it, although it could not have been done lawfully without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he has so sanctioned to the prejudice of those who have acted on the fair infer- ence to be drawn from his conduct. — Exchange State Bank v. Taber, 26 Ida. ,723, 145 P. 1090. So, where a wife, owning a business, allowed her hus- band to hold himself out as the owner, she will be estopped from asserting ownership to the injury of those who gave the husband credit because of his apparent ownership. —Boise Butcher Co. v. Anixdale, 26 Ida. 483, 144 P. 337. Where an agent exceeds his authority by accepting a note instead of cash, and the principal ratifies the action, and the agent endorses the note, sells the same and the principal has the benefit of the proceeds, and agrees to hold the agent harmless because of the endorsement, the principal or his administrator will be estopped to deny the agent's claim for reimbursement originating on ac- count of the endorsement. — Blackwell v. Kercheval, 27 Ida. 537, 149 P. 1060. Kansas. Where a parent asserts in his pleading and evi- dence, the right of his minor child to recover for personal injuries in an action brought by the parent as next friend, the latter will be estopped from recovering in his own right, damages in lieu of the child's earnings and for diminished earning capacity. — Abeles v. Bransfield, 19 Kan. 16. One who by falsely representing that a certain state of facts exists, has mislead another, is precluded from deny- ing the truth of such representations where such denial would result in loss to the other party and operate as a fraud upon him. — Cornell University v. Parkinson, 59 Kan. 365, 53 P. 158; Westerman v. Corder, 86 Kan. 239, 119 P. 868; Freeman v. Peter, 97 Kan. 63, 154 P. 270. PRESUMPTIONS AND ESTOPPELS 745 Whenever a person with notice or means of knowledge of the facts and of his rights, remains silent for a long period of time and abstains from impeaching a proceeding divesting him of the right to obtain title to land, so that another is induced to believe the proceeding has been ac- quiesced in as valid, and acting upon such belief, is in- duced to purchase the property and expends money upon its improvement, the proceeding becomes unimpeachable in equity, whatever its original character might have been. —Burgess v. Hixon, 75 Kan. 201, 88 P. 1076; Trego Land & I. Co. v. Reddig. 86 Kan. 689, 121 P. 912. Montana. Where, by the terms of a deed to a mining claim any after acquired interest of the grantor would inure to the benefit of the grantee, and the grantee aban- doned it and it reverted to the public domain, was relo- cated by a third party and thereafter conveyed by him to the original grantor, all parties acting in good faith, it was held, that the original grantor was not estopped from asserting ownership as against his grantee in the first mentioned conveyance. — McDermott Min. Co. v. Mc- Dermott. 27 Mont. 143, 69 P. 715. Where one has. by his acts or representations, or by his silence when he ought to speak out. intentionally or through culpable negligence induced another to believe certain facts to exist, and such other has rightfully acted on this belief so that he will be prejudiced if the former is permitted to deny the existence of such facts, the former is conclusively estopped to interpose a denial thereof. — Finlen v. Heinze, 32 Mont. 354. 80 P. 918; Kennedy v. Grand Fraternity, 36 Mont. 325, 92 P. 971. Nebraska. Two defenses irreconcilably inconsistent may not be enforced, and the position assumed by the party prior to the suit relative to the facts and circumstances involved in the transaction drawn into question will pre- vail. — Columbia Nat. Bank v. German Nat. Bank, 56 Neb. 803, 77 N. W. 346. Where a party gives a reason for his conduct and deci- sion touching anything in controversy, he cannot, after litigation had begun, put his conduct in another and dif- ferent consideration. — Continental Ins. Co. v. Waugh. 60 Neb. 348, 83 N. W. 81. 746 PRESUMPTIONS AND ESTOPPELS Where real estate is conveyed by deed and at the same time property located thereon capable of being detached without injury to the land is conveyed by bill of sale, the parties will be estopped from claiming that the person- alty passed by the deed. — Bell v. Looker, 98 Neb. 327, 152 N. W. 551. Nevada. Long acquiescence of owners of land, sleeping upon their rights in allowing others without objection to deal with the land and exercise the rights of ownership, will estop them from asserting their title. — Quinn v. Small, 38 Nev. 8, 143 P. 1053. New Mexico. Where a party gives a reason for his con- duct and decision touching anything in a controversy, he cannot, after litigation has begun, put his conduct in an- other and different consideration. — Irwin v. Woodmen of the World, 15 N. M. 365, 110 P. 550. North Dakota. Where a deed, placed in escrow for fu- ture delivery, is fraudulently recorded by the grantee, knowledge of which comes to the grantor who does not dispute the grantee's title so acquired within a reason- able time, the grantor will be estopped from asserting title as against an innocent purchaser relying upon the gran- tee's record title. — Johnson v. Erlandson, 14 N. D. 518, 105 N. W. 722. Where an officer of a corporation without authority bor- rowed money in the name of the corporation, pledged its property as security, and the money was received and used by the corporation under circumstances which did or should have brought notice to the corporation, it was held to have been estopped to deny the authority of such officer.— First Nat. Bank v. State Bank, 15 N. D. 594, 109 N. W. 61. One who stands silently by whilst his obligation is trans- ferred to a bona fide purchaser without giving notice of his defense or set-off, if he has any, is estopped from set- ting up such defense against the purchaser. — Vallancey v. Hunt, 20 N. D. 579, 129 N. W. 455. Oklahoma. If one maintains silence when in conscience he ought to speak, equity will debar him from speaking PRESUMPTIONS AND ESTOPPELS 747 when in conscience he ought to remain silent. So where a school board purchased from the husband, before he had made final proof, a part of the land entered and occu- pied as a homestead, for which he executed a quitclaim deed in which his wife did not join, and the property was improved and the possession of the board continued for a number of years without any assertion of title by the husband or wife, it was held that both were estopped from recovering the land. — Brusha v. Board of Education, 41 Okl. 595, 139 P. 298. Where a parent asserts in his pleading and evidence, the right of his minor child to recover for personal injuries in an action brought by the parent as next friend, the parent will be estopped from recovering in his own right, damages in lieu of the child's earnings and for diminished earning capacity.— Revel v. Pruitt, 42 Okl. 696, 142 P. 1019. Where an applicant for insurance makes a false state- ment the falsity of which is or should be known to the insurer, the latter will be charged with knowledge thereof and is estopped to plead misrepresentation and avoid lia- bility on a policy subsequently issued on the false appli- cation.— Supreme Tribe v. Owens, (Okl.), 151 P. 198. Where the owner gives the seller express power to sell the property, and he does sell it, clothed with all the indicia of ownership, and the express right to sell it, the owner will be estopped from claiming title. — A. L. Jepson Mfg. Co. v. Shank, (Okl.), 154 P. 516. Oregon. A party cannot recognize another as his agent and ratify unauthorized acts where they result to his advantage and disclaim the authority when they result to his injury.— McLeod v. Despain, 49 Or. 536, 90 P. 492. A person may be estopped by his conduct, whether or not he intended that others should act upon the strength of It, it it induced the belief that his intention was com- patible with his conduct. So where the owner of goods stands by and voluntarily allows another to treat them as his own. whereby a third person is induced to buy them bona tide, such owner cannot recover the property from the purchaser. Ashley v. Pick, 53 Or. 410. 100 P. 1103. 748 PRESUMPTIONS AND ESTOPPELS Where one testifies that he considers an agent his debtor, he will be estopped from attempting to enforce his claim against the principal. — Gardner v. Kinney, 60 Or. 292, 117 P. 971. A purchaser of land who has the same deeded to an- other for the purpose of delaying his creditors will be es- topped to assert his title as against a mortgage executed by such other person, where the mortgagee relied on his representations that such other was the owner. — Bush v. Roberts, 57 Or. 169, 110 P. 790. A subsequent oral agreement in modification of a writ- ten agreement for the sale of lands is void; but an ex- ception to this rule arises where the circumstances are such that equity will not permit the statute of frauds to be used to perpetrate a fraud; as where there was an oral extension of time of payment acted upon by the vendee, the vendor will be estopped to assert default in payment as provided in the written agreement and then invoke the statute. — Kingsley v. Kressly, 60 Or. 167, 118 P. 678. South Dakota. Where a mortgagor did not attempt to set aside voidable foreclosure proceedings, but surrendered possession of the premises to the purchaser under the decree, and otherwise completely estopped himself from asserting the invalidity of the proceedings, and it appears that prior to the decree he had conveyed the premises to another, the latter will also be estopped from asserting the invalidity of the foreclosure proceedings. — Shelby v. Bowden, 16 S. D. 531, 94 N. W. 416. One who. by his negligence and laches, has allowed his grantee in a deed absolute, with an oral defeasance, to treat the property as though no trust existed, will be es- trmped to assert the trust to the injury of a bona fide pur- c'->a^er of the property from the grantee in such deed. — 0.-«hv v Larson, 24 S. D. 628, 124 N. W. 856; Grigsby v. Verch, 34 S. D. 39, 146 N. W. 1075. "'^^ riecedent purchased property, causing the deed to be taken in his brother's name, and until his death, whioh occurred over ten years later, was in possession and controlled the land in subordination to the brother's PRESUMPTIONS AND ESTOPPELS 749 legal title, but there was no showing that decedent had expended money for or made improvements on the land or had done any act detrimental to the legal title, and no adverse claim appeared until the land was awarded to decedent's widow eight years after his death, it was held that, mere silence on the part of the brother did not give rise to an estoppel by laches as against him. — Wal- lace v. Dunton, 30 S. D. 598, 139 N. W. 345. Maggie Maloy, when sued on a judgment against an- other person named Margaret Maloy, will not be estopped from questioning its validity by the fact that she did not inform the sheriff, when he told her that he had an exe- cution against her, that no summons had ever been served upon her; or that she did not, after learning that a judg- ment had been entered, move to have it set aside; or that she did not appear and resist application for leave to sue upon the judgment. — Shenkberg Co. v. Maloy, 34 S. D. 103, 147 N. W. 286. Texas. One who induces the purchase of land or other property as being the property of a third person is es- topped from asserting any claim to such property. — Mil- lican v. McNeill, 102 Tex. 192, 114 S. W. 106; Moody v. Bonham, (Tex. Civ. App.), 178 S. W. 1020. He who has been silent as to his alleged rights when he ought in good faith to have spoken, shall not be heard to speak when he ought to be silent. — Bennett v. Atte- berry, 105 Tex. 119, 145 S. W. 582; Dudley v. Strain, (Tex. Civ. App.), 130 S. W. 778. No man shall construct a right upon his own wrong. Whatever he has said or implied wrongfully to his own advantage, that he shall be bound by when it may turn to his disadvantage, however false it may be in fact. — El Paso & S. W. R. Co. v. Eichel & Weikel. (Tex. Civ. App.), 130 S. W. 922; Russell v. Hamilton, (Tex. Civ. App.), 174 S. W. 705. Though there may have been a conspiracy to defraud a person who conveys lands, yet he will be estopped to assert bad faith in the grantee and avoid the conveyance, where it appears that before the conveyance he assured 750 PRESUMPTIONS AND ESTOPPELS the grantee that the transaction was satisfactory to him. — Neff v. Heimer, (Tex. Civ. App.), 163 S. W. 140. Utah. By issuing a certificate of corporate stock to a person, the corporation holds such person out as the owner thereof with capacity to transfer the same, and when an- other person presents the same with proper assignment to him from the original holder, the corporation cannot refuse to transfer the stock on its books to such assignee. — Mundt v. Commercial Nat. Bank, 35 Utah 90, 99 P. 454. Where the facts lead to an irresistible conclusion that an agent had apparent authority to receive payment of a note, although he had not possession thereof when the payment was made, the principal will be estopped from claiming nonpayment after the agent has received pay- ment and absconded without turning the proceeds over to the principal. — Campbell v. Gowans, 35 Utah 268, 100 P. 397. Where a recorded deed contained the description of four adjoining lots, two of which were admittedly con- veyed, and it did not appear how the other two came to be inserted in the deed, and a third person, relying upon the conduct, statements, and disclaimer of ownership by the grantee, purchased from the original grantor the lots in controversy, such grantee, after the purchaser has made valuable and permanent improvements upon the property, will be estopped to deny the title of such pur- chaser.— McKeon v. Hedges, 45 Utah 383, 146 P. 286. Washington. One who acquiesces in the construction and operation of a public utility on his land is estopped to maintain ejectment or a suit for injunction, but will be left to his action for damages. — Kakeldy v. Columbia & P. S. Ry. Co., 37 Wash. 675, 80 P. 206; Domrese v. City of Roslyn, 89 Wash. 106, 154 P. 140. Recognizing the general rule that where a person wrong- fully or negligently, by his acts or representations, causes another who has a right to rely upon such acts or repre- sentations to change his condition for the worse, the party making such representations shall not be allowed to plead their falsity for his own advantage; and also the rule that PRESUMPTIONS AND ESTOPPELS 751 admissions made by an executor or administrator in the course of judicial proceedings are made for the benefit of the estate, and do not conclude his individual right by way of estoppel, the court held in the instant case that the administrator, after petitioning for leave to sell real estate alleged to belong to the estate he represented, and representing it to be a sale of the entire estate, selling and conveying the same as such, but afterwards gave a quitclaim deed to another party for the property, was es- topped to assert any interest in the property. — Carruthers v. Whitney, 56 Wash. 327, 105 P. 831. One who remains silent when duty commands him to speak if he ever intends to speak, will not be heard to assert a right which equity and good conscience forbid that he have. This maxim applied to estoppel of county to assert the invalidity of a tax sale of property acquired in its proprietary capacity. — Franklin County v. Carstens, 68 Wash. 176, 122 P. 999. Wyoming. Where one consents to the occupation of his land by another possessing the power of eminent domain for the purpose of such occupation, without either requir- ing payment, or proceedings to condemn, and allows the party entering to expend money and labor, he will be re- garded as having acquiesced therein, and as being estopped from maintaining trespass or ejectment, and is restricted to a suit for damages. — Gustin v. Harting, 20 Wyo. 1, 121 P. 522. Where an easement common to all the adjoining land- owners has been orally agreed upon between them, with regard to which they have made improvements, each will be estopped from contesting the rights of the others to its enjoyment, which estoppel will extend to purchasers from them with notice. — Forde v. Libby, 22 Wyo. 464, 143 P. 1190. ESTOPPEL BY NEGLECTING DUTY. Arkansas. An insolvent debtor will not be allowed to permit his lands to forfeit for taxes and be bought in in his wife's name, even with her means, to defeat the pay- ment of his debts, and such transaction will be treated, 752 PRESUMPTIONS AND ESTOPPELS so far as his creditors are concerned, as a redemption, in effect, of the lands by him. — Herrin v. Henry, 75 Ark. 273, 87 S. W. 430; Fluke v. Sharum, 118 Ark. 229, 176 S. W. 684. Where a policy of insurance is subject to forfeiture in case the property becomes vacant, and the insured, after it becomes vacant, so notifies the agent of the insurer and is informed by him that the policy will be continued in force, and it further appears that he had authority to so continue it, the insurer or the agent will be estopped from asserting a forfeiture. — Home Fire Ins. Co. v. Wil- son, 118 Ark. 442, 176 S. W. 688. But in such case if the agent does nothing in his capa- city as such to mislead the insured, his principal will not be estopped from setting up the forfeiture. — Home Fire Ins. Co. v. Wilson, 109 Ark. 324, 159 S. W. 1113. Where an automobile was offered as a prize by a news- paper to any person securing the largest number of sub- scribers to the paper it appeared that the newspaper was not the owner, it was competent to show that the owner had held the newspaper out to have authority to deliver the car to the successful contestant, and that it was a question for the jury as to whether the owner had estopped himself from denying the ownership to be in the news- paper.— Jones v. Burks, 110 Ark. 108, 161 S. W. 177. An automobile was offered as a prize under the same conditions, but in that case there was no evidence what- ever to warrant the conclusion that the owner had es- topped himself from asserting ownership. — Watkins v. Curry, 103 Ark. 414, 147 S. W. 43. Where a vendee is in possession of lands and bound to the payment of taxes, his attorney, with full knowledge, will not be permitted to redeem the lands from a tax sale caused by the failure of the vendee to pay the taxes, and assert such title as against the vendor's lien, where he had wilfully withheld information from the vendor of the vendee's inability to redeem the lands, and had repre- sented to the contrary, that the vendee would probably redeem if given time, and a finding that he intended to PRESUMPTIONS AND ESTOPPELS 753 defeat the vendor's lien will be justified. — Blackwell v. Kinney, 119 Ark. 578, 180 S. W. 757. California. A real estate broker who was employed by plaintiff to sell property represented to him that he had a cash deposit from a prospective customer to secure the performance of a contract to purchase, and the plaintiff, relying upon the representation, approved the contract. The prospective purchaser had given the broker a note in lieu of a cash deposit, and afterwards failed to perform the contract and became insolvent. In an action by plain- tiff against the broker to recover the amount of the de- posit, it was held that the case came directly within the rule of estoppel and the provisions of the statute (§ 1962, subdivision 3, C. C. P.), and that the agent could not deny that the deposit was made in cash, although it also ap- peared that plaintiff had suffered no pecuniary loss by the transaction.— Wood v. Blaney, 107 Cal. 291, 40 P. 428. One executing a commission to buy property jointly for himself and another, who buys at a lower price, but falsely represents to the other that he paid a higher price, and receives pay for the other's share at the fictitious price will be estopped to deny that the other relied on the false representation.— Smith v. Elderton. 16 Cal. App. 424, 117 P. 563. Fraud, actual or constructive, against the opposite party, is an essential element of an estoppel against the legal owner of land to prevent him from asserting his title. — Boggs v. Merced M. Co., 14 Cal. 368. So under the statute (§ 1962, subdivision 3. C. C. P.), and the rule laid down in Scott v. Jackson, 89 Cal. 262, 26 P. 898, that where a person tacitly encourages an act to be done, he cannot afterwards exercise his legal right in opposition to such consent, if his conduct or acts of encouragement induced the other party to change his po- sition so that he will be pecuniarily prejudiced by asser- tion of such adversary claim, where the father deeded lands to one son with the understanding that the father was to have possession and enjoyment thereof during his life, and that the deed should not be recorded until after his death, and subsequently conveyed the same lands to 754 PRESUMPTIONS AND ESTOPPELS such son and another son as tenants in common; it was held that the former son was not estopped from claiming the whole estate by his silence respecting the first deed, where the latter son had remained with his father upon the land and expended money and labor thereupon, but by doing so had suffered no pecuniary loss. — Treat v. Treat. 170 Cal. 329, 150 P. 53. Colorado. Where defendant had control of plaintiff's water for irrigation which plaintiff had bought of him, and had used the same to his own advantage with consent of plaintiff until plaintiff should need it, when sued for the water he cannot defend upon the ground of laches or non- use of the water by the plaintiff. — Wannamaker v. Pen- dleton, 21 Colo. App. 174, 121 P. 108. Where an agent accepts a conveyance of real estate in satisfaction of a debt due jointly to himself and another, when sued by his principal for the latter's portion of the debt he will be estopped from denying the right of the prin- cipal to sue as for money had and received. — Brown's Es- tate v. Stair, 25 Colo. App. 140, 136 P. 1003. A lessee obligated to pay taxes cannot redeem in his own right from a tax sale which resulted from his failure to pay the taxes. — Schneider v. Hurt, 25 Colo. App. 335, 138 P. 422. Kansas. Where the holder of a note assigned to him for collection only, brings suit thereon in his own name, and obtains the benefit of the amount of the note for his own use, in an action against him by the original payee for the amount of the note, he is not in a position to raise the question whether the maker of the note is not still liable to the payee. — McWhirt v. McKee, 6 Kan. 412. Where an executor, in excess of his authority executed a lease while he was himself the owner of the interest of one of the legatees and soon thereafter acquired the in- terest of another, and the lessee had no notice of the want of authority, such executor will be estopped from denying that his interest in the premises is not subject to the lease. — Lanyon Zinc Co. v. Freeman, 68 Kan. 691, 75 P. 995. PRESUMPTIONS AND ESTOPPELS 755 Nebraska. Where a real estate broker was instructed to sell lands including the growing crops thereupon, made the sale and was paid his commission therefor, but with- out the knowledge of the vendor, reserved a part of the crops to himself, he was held to be estopped to assert that he was not the agent of the vendor. — Northup v. Bathrick, 80 Neb. 36, 113 N. W. 808. South Dakota. Where a warehouseman had been informed that certain property would be delivered to him by a ten- ant of the informant, and that such property belonged to such informant, and to deliver the warehouse receipt there- for to informant, and the warehouseman, upon delivery of the property by an employe of the tenant and demand by him, gave such employe the receipt therefor, and through the latter's fraud the property was lost to the owner, it was held that the rule that one who clothes another with apparent authority should bear any loss resulting there- from, was not applicable, but that the warehouseman was negligent in the delivery of the receipt and that notwith- standing he acted in good faith, he would be estopped from asserting that the employe was the agent of the owner. —Johnson v. Bagley Elevator Co., 36 S. D. 531, 156 N. W. 76. Texas. Where through fraud, misrepresentation and vio- lation of instructions an agent has effected the convey- ance by the principal of his lands to his injury, the agent will be estopped to deny that the title to the lands passed by the conveyance. — Tyler Bldg. & L. Ass'n v. Beard & Scales, 106 Tex. 554, 171 S. W. 1122. Washington. Where a bank took a mortgage on insured property and had the insurance assigned to it, but assigned the mortgage prior to the loss, yet, notwithstanding, made proofs of loss, asserting ownership of the mortgage and also assured the party who repaired the building that the insurance would be turned over to him in reimbursement, and the insurer refused to pay the bank on the ground that it had assigned the mortgage, the bank was held to be estopped to deny liability for the repairs. — Manny v. Spokane State Bank, 78 Wash. 230, 13S P. 682. 756 PRESUMPTIONS AND ESTOPPELS When the testimony of a witness in replevin sustains the contention of the defendant who claimed the article re- plevied the witness will be estopped from setting up title to the article in himself. — Masterson v. Union Bank & T. Co., 86 Wash. 560, 150 P. 1126. Article 103. estoppel of tenant and licensee. No tenant and no person claiming through any tenant of any land or hereditament of which he has been let into possession, or for which he has paid rent, is, till he has given up possession, per- mitted to deny that the landlord had, at the time when the tenant was let into possession or paid the rent, a title to such land or hereditament ; (a) and no person who came upon any land by the license of the person in possession thereof is, whilst he remains on it, permitted to deny that such person had a title to such possession at the time when such license was given, (b) ESTOPPEL OF TENANT. California. One occupying the relation of tenant under an assigned lease is estopped from denying the validity of the title under which he took possession of the premi- ses. — Byington v. Sacramento Valley W. S. Canal Co., 170 Cal. 124, 148 P. 791. The rule of law that a tenant will not be permitted to deny the title of his landlord applies to a lessee of a per- son in lawful possession of lands as a locator under the mining laws. That the lands, subsequent to the time the cause of action arose, were withdrawn from entry as min- (a) Doe v. Barton, 11 A. & E. 307; Doe v. Smyth, 4 M. & S. 347; Doe v. Pegg, 1 T. R. 760 (note); [5 Am. Law. Rev.l]. (b) Doe v. Baytup, 3 A. & E. 188. PRESUMPTIONS AND ESTOPPELS 757 eral lands, is immaterial. — Johnson v. Hinkel, 29 Cal. App. 78, 154 P. 487. Colorado. A tenant is estopped from denying the title of his landlord as long as he is in possession of the premises under the lease. That the landlord had no title at the time of the creation of the relationship is immaterial, nor does the fact that the property leased is public prop- erty prevent the operation of the estoppel so long as the title of the land is the same as it was at the time the tenancy was created. So long as the tenant is not dis- turbed in his possession, it is immaterial whether the title of the landlord is valid or not. — Wallbrecht v. Blush, 43 Colo. 329, 95 P. 927. A tenant under a lease assumed to make monthly pay- ments on a mortgage on the demised property. He failed to do so and by agreement with the mortgagee the prop- erty was sold at private sale to an employe of the lessee who transferred the same to the lessee. There was no visible change of possession, and it was held that the lessor could insist that the sale inured to his benefit. — Dailey v. Aspen Democrat Pub. Co., 46 Colo. 145, 103 P. 303. A tenant is not permitted to deny his landlord's title, and the rule extends to an agent in possession of the prop- erty of his principal. — Wannamaker v. Pendleton, 21 Colo. App. 174, 121 P. 108. Kansas. The tenant's estoppel to deny his landlord's title inures to the benefit of any person to whom the landlord's title may pass. — Brenner v. Bigelow, 8 Kan. 496. Where a tenant enters into possession under a lease which the lessor had no authority to make and gives his note for the rent, after the expiration of the term, he as well as his surety on the note will be estopped from deny- ing the authority of the lessor. — Oliver v. Gary, 42 Kan. 623, 22 P. 733. Nebraska. The general rule is that a tenant having ac- quired possession under a lease, his possession and that of his lessor are identical, and, as between the parties, he is estopped to assert or admit that such joint possession 758 PRESUMPTIONS AND ESTOPPELS is wrongful. This rule holds good in actions of forcible entry and detainer. — Wilson v. Lyons, (Neb.), 94 N. W. 636. Nevada. The contract of lease implies not only recogni- tion of the landlord's title but a promise to surrender the possession to him at the termination of the lease, and the tenant, therefore, whilst retaining possession, is estopped to deny the landlord's rights; and this rule extends to every person who enters under lessees with knowledge of the terms of the lease whether by operation of law, or by purchase or assignment. — Fitchett v. Henley, 31 Nev. 326, 104 P. 1060. Oklahoma. Where the title to the demised premises had reverted to the government during the tenancy, and both the landlord and tenant were claimants for the property under the townsite laws, the tenant, having entered into possession under the landlord, could not deny the latter's right to possession and claim that he himself was in such possession as would entitle him to recognition as an occupying tenant under the townsite laws. — Young v. Severy, 5 Okl. 630, 49 P. 1024. Under the general doctrine that a tenant, during the continuance of his possession under the lease cannot buy in and set up a title adverse to his landlord, a tenant who buys of his landlord the property leased, which is subject to a mortgage at the time of his entry, and also an out- standing title, cannot set up such claims against the mort- gagee. — Standifer v. Morris, 25 Okl. 802, 108 P. 413. Oregon. Where a purchaser enters into possession of land under an executory contract, which leaves the legal title in the vendor, and contemplates a further conveyance of the complete title, his entry will be in subordination to the legal title, and in such case, as also in the case of a lessee, and other similar cases, where one is under the owner of the legal title, a privity exists which precludes the idea of a hostile or tortious possession, that could silently ripen into an adverse possession under the statute of limitations. — Anderson v. McCormick, 18 Or. 301, 22 P. 1062; Crowley v. Grant, 63 Or. 212, 127 P. 28. PRESUMPTIONS AND ESTOPPELS. 759 A tenant cannot deny the title of his landlord, and his successor is in no better position. — Rouse v. Riverton Coal & D. Co.. 71 Or. 154. 142 P. 343. South Dakota. A tenant or one holding under him is es- topped from asserting that the landlord has no title. Where he takes possession and enjoys the use of the premises under a lease he is estopped from contesting the validity of the lease. — Dobbs v. Atlas Elev. Co., 25 S. D. 177, 126 N. W. 250. Texas. A tenant cannot dispute his landlord's title, and this rule applies as well in suits for rent as those for the recovery of possession; and also applies to one who ob- tains or claims possession through or under the tenant of another. — Richardson v. Houston Oil Co., (Tex. Civ. App.), 176 S. W. 628; Fahey v. Kares, (Tex. Civ. App.), 181 S. W. 782. Washington. Where a tenant owns a building but not the land upon which it stands, with the right to remove the building, but, without exercising that right, pays rent under a lease from the owner of the land, he will be estopped to recover the amount of such rent as was paid for the use of the building. — Allen v. Migliavacca Realty Co., 74 Wash. 347, 133 P. 580. EXCEPTIONS TO ESTOPPEL OF TENANT. Arkansas. It is a general rule that a tenant who does not surrender back to his landlord possession of the demised premises will not be permitted, so long as he holds the pos- session which he originally derived from his landlord, to deny the latter's title; but this rule is limited to the title that the landlord had at the inception of the tenancy. The tenant is only estopped to deny that which he has once ad- mitted. He may show that the right and title of the land- lord existing at the creation of the tenancy has since that time been terminated, expired or extinguished. — Bettlson v. Budd. 17 Ark. 552; Earl's Administrator v. Hale's Ad- ministrator. 31 Ark. 470. A tenant cannot acquire an adverse title as against his landlord, but may renounce his holding as tenant and set up a right in himself after notice to the landlord, and a 760 PRESUMPTIONS AND ESTOPPELS. third person who purchases of such tenant without notice of the tenancy an adverse title may set it up against the landlord.— Gee v. Hatley, 114 Ark. 376, 170 S. W. 72. California. The rule that it is necessary to surrender possession, and again enter, before possession can become adverse, obtains only where the person claiming to hold adversely was put into possession by the owner, or has at least held possession under such owner, not where one holds under a person who is not the real owner. — Millett v. Lagomarsino, 107 Cal. 102, 40 P. 25. Kansas. A tenant having obtained possession of the premises from his landlord cannot say that he holds in opposition to him, and he cannot refuse to return posses- sion to the landlord on the ground that the title under which that possession was secured is defective; but this estoppel extends to those matters only which affect the relations growing out of the lease, and there is no valid reason why an action to quiet title, or other proper action, may not be prosecuted and defended for the purpose of settling disputes concerning title which leave the relations of landlord and tenant unaffected. — Oliver v. Gary, 42 Kan. 623, 22 P. 733. Nebraska. While a tenant may not dispute his landlord's title, yet the lessee, in an action by the lessor to recover rent, may show that the lessor has sold and conveyed the premises without reserving the rent thereafter to become due, and may thus defend such action without having been evicted by the paramount title or disturbed in his posses- sion.— Allen v. Hall, 66 Neb. 84, 92 N. W. 171. A tenant when sued for possession may show in defense that in order to avoid eviction by the owner of a title paramount to that of his landlord, who was plaintiff, the defendant attorned to such owner of the paramount title. —Bowman v. Goodrich, 94 Neb. 696, 144 N. W. 240. Nevada. None of the exceptions to the rule that a ten- ant is estopped from denying the title of his landlord will allow a tenant to assert that the landlord falsely repre- sented that he had title, where, in fact he did not, unless the tenant shows injury thereby. Prior possession is PRESUMPTIONS AND ESTOPPELS. 761 prima facie evidence of title, and, in the absence of a bet- ter title, must be deemed equivalent to title; and the estoppel does not depend on the validity of the landlord's title. If the tenant is evicted by one who has the right of possession he is excused from the payment of rent. — Fitchett v. Henley, 31 Nev. 326, 104 P. 1060. The rule that a tenant cannot dispute his landlord's title has no application where the relationship of landlord and tenant is not admitted, but is the very issue in the case, as, where it is alleged in defense of an action for possession that the instrument under which defendant took possession, in form a lease, was in fact a part of a transaction the other part of which was the execution by defendant of a deed for the premises to the plaintiff, that the two instruments constituted security for money loaned, and proof of such defense is competent. — Yori v. Phenix, 38 Nev. 277, 149 P. 180; (Phenix v. Bijelich, 30 Nev. 257, 95 P. 351, distinguished). North Dakota. A tenant is not estopped to deny his land- lord's title in a statutory action to determine adverse claims to real property, but only in actions arising out of the relation of landlord and tenant. — Hebden v. Bina, 17 N. D. 235, 116 N. W. 85. Oklahoma. It is a general rule that a tenant who does not surrender back to his landlord possession of the demised premises will not be permitted, so long as he holds the possession which he originally derived from his landlord, to deny the latter's title; but this rule is limited to the title that the landlord had at the inception of the ten- ancy. The tenant is only estopped to deny that which he has once admitted. He may show that the right and title of the landlord existing at the creation of the tenancy has since that time been terminated, expired or extin- guished.— Indian Land & T. Co. v. Clement, 22 Okl. 40, 109 P. 1089; Welchi v. Johnson. 27 Okl. 518, 112 P. 989. Texas. In an action of forcible entry and detainer, where the defendant entered under a lease, he may show that subsequent to his entry he has himself acquired the les- sor's title to the land, either from the lessor or someone else— Camley v. Stanfield, 10 Tex. 550. 762 PRESUMPTIONS AND ESTOPPELS And he may lawfully attorn to a third party who has purchased at execution sale the title of his landlord. — Andrews v. Richardson, 21 Tex. 287; Gallager v. Bennett, 38 Tex. 295; Hartzog v. Seeger Coal Co., (Tex. Civ. App.), 163 S. W. 1055. To the rule that a tenant cannot dispute the title of his landlord, the exceptions are that a tenant of one who has no title may acquire the superior title and show title in himself in defense of a suit of trespass brought against him by his lessor. Another exception is that one who by mistake or through fraud is induced to become the tenant of another is not estopped to deny the title of his landlord. — Richardson v. Houston Oil Co., (Tex. Civ. App.), 176 S. W. 628. Washington. A tenant is usually estopped to deny his landlord's title, regardless of its validity; but when the tenant in possession is induced to accept another as his landlord, through the fraud or misrepresentation of such other, the estoppel to deny the landlord's title will not be effective. — Allen v. Migliavacca Realty Co., 74 Wash. 347, 133 P. 580. ESTOPPEL OF LICENSEE. Arkansas. The possession of a licensee is considered the possession of him upon whose pleasure it continues. — Pulaski County v. State, 42 Ark. 118. A lessee of a purchaser is as fully estopped to deny the title of the purchaser's vendor as is a sub-lessee to deny his lessor's title or that of the landlord. — Dunlap v. Moose, 98 Ark. 235, 135 S. W. 824; Adams v. Primmer, 102 Ark. 380, 144 S. W. 522. New Mexico. The possession of a licensee is considered the possession of him upon whose pleasure it continues. -De Bergere v. Chaves, 14 N. M. 352, 93 P. 762. ESTOPPEL OF VENDEE OR PURCHASER. Arizona. The doctrine that a vendee under a contract to purchase may not dispute his vendor's title, nor purchase and assert against his vendor an adverse title will not extend to land not within the agreement, possession of PRESUMPTIONS AND ESTOPPELS. 763 which he does not take under the contract, but by another right. — Butterfield v. Nogales Copper Co., 12 Ariz. 55, 95 P. 182. Where there is an agreement to buy and sell land, and without the consideration being paid, the buyer enters into possession, the entry and possession are in subordination to the title of the seller until the stipulated payment Is made. The buyer acquires no better right or estate in the premises than his vendor had, and, like a tenant, he cannot deny the title of the vendor unless he repudiates the contract and asserts an adverse, hostile title, where- upon he becomes a trespasser. — Bennett v. United States Land, T. & L. Co.. 16 Ariz. 138, 141 P. 717. Arkansas. One who purchases property of a vendee hold- ing a bond for a title from the owner and goes into pos- session, cannot assert any other title than that acquired from such vendee without first repudiating the title of his vendor and holding adversely to the true owner. — Little Rock & Ft. S. Ry. Co. v. Rankin, 107 Ark. 487, 156 S. W. 431. California. One in possession of property under a con- tract to purchase same is estopped from denying his ven- dor's title until he repudiates the contract. — Woodard v. Hennegan, 128 Cal. 293, 60 P. 769. Idaho. A purchaser in possession under an executory con- tract for the sale of real estate is estopped from denying his vendor's title.— Page v. Bradford-Kennedy Co., 19 Ida. 685, 115 P. 694. Where a purchaser of land has notice that the con- veyance to his vendor was but a mortgage although ab- solute in form, he will not be heard to deny the existence of a vendor's lien in favor of his grantor's vendor. — Smith V. Schultz. 2:'. [da. 144, 129 P. 640. Montana. A tenant who goes into possession as such is estopped from denying the title of his landlord. And so where a mortgagee is in possession and one enters under an agreement to purchase the mortgage, he will be es- topped from disputing the rightful possession of the mort- gagee. — Alderson v. Marshall. 7 Mont. 288, 16 P. 576. 764 PRESUMPTIONS AND ESTOPPELS. Nebraska. Where land leased has been sold under a de- cree in a suit to foreclose a lien for delinquent taxes, in which suit the lessor was a party and whose rights were foreclosed by such decree, and such sale has been duly confirmed and a deed issued to the purchaser thereat, and the lessee, upon exhibition to him of the sheriff's deed, in order to avoid eviction by the then owner of the para- mount title, in good faith attorns to him, such action on his part may be interposed as a defense to an action by his lessor to recover possession.— Bowman v. Goodrich, 94 Neb. 696, 144 N. W. 240. New Mexico. Where one enters upon lands under color of title and thereafter acquires title by adverse possession he is not estopped from setting up such title by reason that the title of his adversary and his own paper title originated in a common source. — Nehr v. Armijo, 9 N. M. 325, 54 P. 236. A person who has gone into possession under a contract to purchase lands will not be allowed, by admitting the title of another, to enjoy that title, and, in case of failure of proof of it, hold the premises himself. — De Bergere v. Chaves, 14 N. M. 352, 93 P. 762. North Dakota. One who as lessee signs a lease and enters into possession of premises thereunder is estopped from denying his landlord's title. — Mower v. Rasmusson, (N. D.), 158 N. W. 261. Oklahoma. A tenant, while remaining in possession, even after the expiration of his term, is precluded, on the doc- trine of estoppel, from either setting up an adverse title to defeat an action of ejectment, or, without first sur- rendering possession, making a contest with his landlord over the title held by him at the time of securing the right of entry.— Miller v. Wood, (Okl.), 155 P. 1178. Oregon. Neither a tenant nor his successor in interest can deny the title of the landlord. — Rouse v. Riverton Coal & Devel. Co., 71 Or. 154, 142 P. 343. Texas. A person who has gone into possession under a contract to purchase lands will not be allowed, by admit- ting the title of another, to enjoy that title, and, in case PRESUMPTIONS AND ESTOPPELS. 765 of failure of proof of it, hold the premises himself. — How- ard v. McKenzie, 54 Tex. 171; McKelvain v. Allen, 58 Tex. 383. But the rule has no application where the possession is never taken under the contract. — Groves v. Whitten- berg, (Tex. Civ. App.), 165 S. W. 889. ESTOPPEL OF SUNDRY CLAIMANTS. Oregon. Where a party recognizes another as the owner of property, he cannot thereafter claim that the proceeds of a sale of it belong to a third party. — Ladd & T. Bank v. Commercial State Bank. 64 Or. 486, 130 P. 975. Texas. Where one secures possession of lands by forcibly ousting another, he cannot defeat the latter's right to re- cover possession by showing an outstanding title. — Rich- ardson v. Houston Oil Co., (Tex. Civ. App.), 176 S. W. 628. Aktk-le 104. estoppel of acceptor of bill ok exchange. No acceptor of a bill of exchange is permitted to deny the signature of the drawer or his capac- ity to draw, or if the bill is payable to the order of the drawer, his capacity to endorse the bill, though he may deny the fact of the endorse- ment; (a) nor if the bill be drawn by procuration, the authority of the agent, by whom it purports to be drawn, to draw in the name of the princi- pal, (b) though he may deny his authority to en- dorse it. (c) If the bill is accepted in blank, the acceptor may not deny the fact that the drawer endorsed it. (d) (a) Garland v. Jacomb, L. K. 8 Kx. 216. (b) Sanderson v. Coleman, 4 M. A Q. 20;t. (c) Robinson v. Yarrow. 7 Tau. 455. (d) L. & S. W. Bank v. Wentworth. L. R. 5 Ex. D. 96. 766 PRESUMPTIONS AND ESTOPPELS. ESTOPPEL OF ACCEPTOR. Arkansas. The drawee by accepting a bill of exchange acknowledges that he has funds in his hands to the amount of the bill. Ordinary orders, drawn by one person upon another in favor of a third person are governed by the same principle.— Byard v. Bertrand, 7 Ark. 321. Nebraska. The acceptance of a draft raises the presump- tion that the acceptor has funds of the drawer in his hands with which to pay it. — Trego v. Lowrey, 8 Neb. 238. Article 105. estoppel of bailee, agent, and licensee. No bailee, agent, or licensee is permitted to deny that the bailor, principal, or licensor, by whom any goods were entrusted to any of them respectively was entitled to those goods at the time when they were so entrusted. Provided that any such bailee, agent, or licen- see, may show, that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal, or li- censor, or that his bailor, principal, or licensor, wrongfully and without notice to the bailee, agent, or licensee, obtained the goods from a third person who has claimed them from such bailee, agent, or licensee, (a) Every bill of lading in the hands of a consignee or endorsee for valuable consideration, represent- (a) Dixon v. Hammond, 2 B. & A. 313; Crossley v. Dixon, 10 H. L. C. 293; Gosling v. Birnie, 7 Bing. 339; Hardman v. Wilcock, 9 Bing. 382; Biddle v. Bond, 34 L. J. Q. B. 137; Wilson v. Anderton, 1 B. & Ad. 450. As to carriers, see Sheridan v. New Quay, 4 C. B. n. s. 618. The Idaho, 93 U. S. 575; Staples v. Fillmore, 43 Conn. 510; Lindner v. Brock, 40 Mich. 618; Dresbach v. Minnis, 45 Cal. 223. PRESUMPTIONS AND ESTOPPELS. 767 ing goods to have been shipped on board a vessel, is conclusive proof of that shipment as against the master or other person signing the same, not- withstanding that such goods or some part there- of may not have been so shipped, unless such hold- er of the bill of lading had actual notice at the time of receiving the same that the goods had not been in fact laden on board, provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper or of the holder, or some person under whom the holder holds, (b) ESTOPPEL OF BAILEE. Arkansas. In an action by a bailor against his bailee, it is no defense that the bailor purchased the property while acting as agent or attorney for a third person, who may have the right to claim the benefit of the purchase. — Estes v. Boothe, 20 Ark. 583. California. To the general rule that a bailee will not be allowed to set up title in a third party, in an action brought by the bailor, there is an exception in cases where the bailor's possession was obtained by fraud. — Hayden v. Davis, 9 Cal. 573. A bailee cannot in an action brought against him by his bailor, set up the title of a third person except by the authority of that person. — Dodge v. Meyer, 61 Cal. 405. One who obtains possession of property as bailee can- not assert ownership of the property until the bailor has notice of the adverse claim. — In re Rathgeb's Estate, 125 Cal. 302, 57 P. 1010. The insolvent, prior to the insolvency proceedings, act- ing as the agent of the owner, deposited the property In (b) 18 & 19 Vict. c. Ill, a. 3. 768 PRESUMPTIONS AND ESTOPPELS. controversy in a safety deposit vault with instructions on the wrapper to deliver it only to the depositor or the owner whose name was also on the wrapper. Upon de- mand, the bailee, with knowledge of the insolvency pro- ceedings, delivered the property to the owner. The as- signee of the insolvent brought suit against the bailee to recover the property or its value, and it was held that he was not entitled to recover.— Davis v. Donohoe-Kelly Banking Co., 152 Cal. 282, 92 P. 639. Colorado. A bailee can discharge his liability to the bailor only by returning the identical thing which he has re- ceived, or its proceeds, under the terms of the bailment; but to this rule there are exceptions. The bailee may show that the property has been taken from him by pro- cess of law, or perhaps excuse his default in some other way; but he cannot set up jus tertii against his bailor, however tortious the possession of the latter, unless the true owner has claimed the property and the bailee has yielded to the claim. — Jensen v. Eagle Ore Co., 47 Colo. 306, 107 P. 259. Kansas. Generally a bailee cannot set up title in a third party, and, a fortiori, in himself, to preserve his own pos- session and to prevent a return of the property to the bailor. He is estopped to deny his bailor's title, even as a tenant his landlord's, although he may show delivery to the true owner. — Thompson v. Williams, 30 Kan. 114, 1 P. 47. South Dakota. Under the common law a bailee could neither assert title in himself nor in a third person as against the bailor; but the general rule now is, that a bailee can discharge his liability to the bailor only by re- turning the identical thing which he has received, or its proceeds, under the terms of the bailment; but the bailee may show that the property has been taken from him by process of law, or perhaps excuse his default in some other way. The bailee cannot set up jus tertii against his bailor, however tortious the possession of the latter, unless the true owner has claimed the property and the bailee has yielded to the claim. The purpose of the statute requiring a name in the receipt, of the person to PRESUMPTIONS AND ESTOPPELS. 769 whose order the property shall be subject, is to have in- serted the name of the person who can negotiate the re- ceipt, and the bailee is estopped as to such person from questioning his ownership; but it does not deprive the true owner of his common law right to pursue his prop- erty in whomsoever's hands he may find it. The bailee cannot assume, as between the party claiming the receipt and a third party, to determine which is the rightful claimant of the property. — Street v. Farmers' Elev. Co., (S. D.), 146 N. W. 1077. One B had possession of property belonging to A with instructions to deliver same to a certain warehouseman. The warehouseman was fully informed as to the matter and instructed by A to deliver the warehouse receipt for the property to him. B employed C to make delivery of the property to the warehouseman. C did so and de- manded the receipt, which was given him, and he con- verted the proceeds. In an action by A against the ware- houseman for damages, it was held, that the latter would be estopped to claim that C was the agent of A. — Johnson v. Bagley Elevator Co., 36 S. D. 531, 156 N. W. 76. Texas. A bailee, when sued by the owner of the property, cannot set up right of possession in a third party. — Moore v. Aldrich, 25 Tex. Sup. 276. ESTOPPEL OF AGENT. Nevada. Where the defendant has received plaintiff's property to sell and account for the proceeds, in the ab- sence of a showing that some one having a paramount title to the property had made a claim upon him for it, he will be estopped from denying the plaintiff's title to the property— Ah Tone v. McGarry, 22 Nev. 310, 39 P. 1009. Oregon. The general rule is that an agent who receives money for his principal is estopped to deny title, and must return or account for the money to him for whom he re- ceived it. This rule does not prevent an agent, when sued by his principal, from showing that he has been divested of the property by a title paramount to that of his prin- cipal, or that he has paid over the money or property to 770 PRESUMPTIONS AND ESTOPPELS. one holding such a title. The rule is practically the same as that governing the relation of bailor and bailee, and surrender to a paramount title is a good defense.— Moss Merc. Co. v. First Nat. Bank, 47 Or. 361, 82 P. 8. ESTOPPEL AS TO BILL OF LADING. Arkansas. Under the act of March 15, 1887, a railroad company which has issued a bill of lading to the owner for property in the hands of another, is not estopped as to third persons from denying that the property was in its possession or control. — Martin v. Railway Co., 55 Ark. 510, 19 S. W. 314. A bill of lading, as a receipt, is prima facie but not conclusive evidence of the facts recited; and between the parties it is impeachable for mistake, error, or false state- ments in it. The agent of a carrier has no authority to issue bills of lading when the goods are not received; and if he does so the receipt is not binding upon the carrier, at least before the rights of a bona fide holder of a ne- gotiable bill of lading have intervened. — St. Louis, I. M. & S. Ry. Co. v. Citizens Bank, 87 Ark. 26, 112 S. W. 154. Kansas. Where the agent of a carrier has issued a bill of lading to the consignors, and they have drawn on the consignees with the bill attached, the carrier is estopped from denying the truth of the recitals therein, and be- comes ' liable to the consignees for such sums of money as they may advance on the faith of said bill. So held where a bill of lading was issued for a carload which was never loaded. — St. Louis & S. R. Ry. Co. v. Adams, 4 Kan. App. 305, 45 P. 920. And where two original bills were issued for a single consignment and both of them negotiated. — Wichita Sav. Bank v. Atchison, T. & S. F. Ry. Co., 20 Kan. 519. In an action by an innocent purchaser of the goods rep- resented by a bill of lading issued by a duly authorized agent of a railroad for goods not actually received, bill is binding on the railroad, so far as necessary to protect in- tervening rights, and this rule is not changed by the fact that the statute makes it a criminal offense to issue such PRESUMPTIONS AND ESTOPPELS. 771 bills— Sealy v. Missouri, K. & T. Ry. Co., 84 Kan. 479, 114 P. 1077. Where a bill of lading is issued for more freight than is actually shipped, the party issuing the bill is liable to a transferee in the regular course of business for the short- age, and for all damages which are the natural and proxi- mate result of the misrepresentations in the bill. — Rail Grain Co. v. Missouri Pacific Ry. Co., 94 Kan. 446, 146 P. 1180. Nebraska. The representations made in a bill of lading that the railroad company issuing it has received the goods for shipment, is a representation to anyone who, in good faith relying thereon, sees fit to make advances on the same. If the representation is false and the railroad has not actually received the gopds, as against an innocent purchaser mislead by the representation, the carrier is estopped to deny that it did receive the goods. — Sioux City & P. R. Co. v. First Nat. Bank, 10 Neb. 556, 7 N. W. 311. The bill of lading and waybill, made by the authorized agent of a carrier of freight, are competent evidence tend- ing to prove that the articles therein described were de- livered to such carrier for shipment. — Chicago, M. & St. P. Ry. Co. v. Johnston, 58 Neb. 236, 78 N. W. 499. Texas, As to an innocent and bona fide holder of a bill of lading, the carrier will be estopped from claiming that he did not receive the goods. — Wichita Falls Comp. Co. v. Moody & Co., (Tex. Civ. App.), 154 S. W. 1032. Washington. Where a transportation company shows that merchandise was not actually received by it, and that a bill of lading has been issued by its agent, either through fraud or mistake, it is held, that, as the receipt of the goods lies at the foundation of the contract to carry and deliver, there can be no such contract, unless the goods have ac- tually been received, and that the agent of the carrier has no authority to issue a bill of lading without the actual receipt of the goods, even as to an innocent transferee or pledgee of the bill of lading. — Roy & Roy v. Northern Pac. Ry. Co., 42 Wash. 572, 85 P. 53. 772 PRESUMPTIONS AND ESTOPPELS. NOTE XXXVIII. (To Articles 102-105.) These articles embody the principal cases of estoppels in pais, as distinguished from estoppels by deed and by record. As they may be applied in a great variety of ways and to infinitely various circumstances, the application of these rules has involved a good deal of detail. The rules themselves appear clearly enough on a careful examination of the cases. The latest and most extensive collection of cases is to be seen in 2 S. L. C. 851-880, where the cases referred to in the text and many others are abstracted. See, too, 1 Ph. Ev. 350-353; T. E. ss. 88-90, 776, 778; Best, s. 543. Article 102 contains the rule in Pickard v. Sears, 6 A. & E. 474, as interpreted and limited by Parke, B., in Freeman v. Cooke, 6 Bing. 174, 179. The second paragraph of the article is founded on the application of this rule to the case of a negligent act causing fraud. The rule, as expressed, is collected from a comparison of the following cases: Bank of Ireland v. Evans, 5 H. L. C. 389; Swan v. British and Australasian Company, which was before three courts, see 7 C. B. n. s. 448; 7 H. & N. 603; 2 H. & C. 175, where 1 the judgment of the majority of the Court of Exchequer was reversed; and Halifax Guardians v. Wheelwright, L. R. 10 Ex. 183, in which all the cases are referred to. All of these refer to Young v. Grote (4 Bing. 253), and its authority has always been upheld, though not always on the same ground. The rules on this subject are stated in general terms in Carr V. L. & N. W. Railway, L. R. 10 C. P. 316-317. It would be difficult to find a better illustration of the gradual way in which the judges construct rules of evidence, as circumstances require it, than is afforded by a study of these cases. COMPETENCY OF WITNESSES. 773 CHAPTER XV. OF THE COMPETENCY OF WITNESSES.* Article 106. WHO MAY TESTIFY, (a) All persons are competent to testify in all cases except as hereinafter excepted, (b) SURVIVOR'S TESTIMONY. Where a statute provides that no party to a civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as executor, unless when called as a wit- ness by such adverse party, the calling of such witness by the adverse party makes him competent for all pur- poses.— Jerome v. Bohm, 21 Colo. 322, 40 P. 570; Higbee v. McMillan, 18 Kan. 133. California. The section of the Code of Civil Procedure which prohibits parties in whose favor an action is prose- cuted against an estate from being witnesses, does not prohibit a person against whom an action is prosecuted by an executor on a claim in favor of an estate from being a witness in his own favor. — Sedgwick v. Sedgwick, 52 Cal. 336. a fit was the old common law rule that parties of record, whether nominal or not, and others interested in the event, were disqualified from testifying; Pogue v. Joyner, 6 Ark. 241, 42 Am. Dec. 693. But this rule has almost universally been abolished by statute. 1 Wigmore Ev., § 577] b [In practically all of the states statutes have been en- acted providing that no party or person directly interested in the event of the action shull he allowed to testify when any adverse party sues or defends as the representative of a lunatic or deceased, except in certain cases. See 1 Wigmore Ev., 5 488.] •See Note at end of chapter. 774 COMPETENCY OF WITNESSES. Colorado. Mills' Ann. Stats., sec. 4822, provides that all persons, with certain exceptions, may be witnesses, and that neither parties nor other persons who have an in- terest in the event of an action or proceeding shall be excluded; and sec. 4816 provides that no party to any civil action, or person directly interested in the event thereof, shall be allowed to testify therein when any adverse party sues or defends as the administrator of any deceased per- son. Held, that in a proceeding upon the allowance of a claim against the estate of a decedent, the wife of the claimant is a competent witness to testify in favor of her husband.— Butler v. Phillips, 38 Colo. 378, 88 P. 480; White v. Christopherson, 46 Colo. 46. 102 P. 747. Kansas. An administratrix of the estate of a deceased partner petitioned the court for directions whether to treat her decedent's real estate as individual or partner- ship property, making various creditors and persons parties, including the brother and surviving partner of the deceased. She called as a witness in her behalf this brother, who testified to transactions and communications had personally by him with the deceased, over the objec- tion of the appealing creditor. Held, that, even if he were deemed to be testifying in his own behalf on account of his interest in the matter, still, as neither he nor the creditor is within the terms of the statute, the latter could no exclude the evidence. — Sarbach v. Sarbach, 86 Kan. 894, 122 P. 1052. Article 107. what witnesses are incompetent. A witness is incompetent if in the opinion of the judge he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollecting the matter on which he is to testify, from understanding the questions put to him, from giving rational answers to those COMPETENCY OF WITNESSES. 775 questions, or from knowing that he ought to speak the truth, (a) A witness unable to speak or hear is not in- competent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible; but such writing must be written and such signs made in open Court. Evidence so given is deemed to be oral evidence. Illustrations. ■ a [On trial for rape of a negro girl 8 years of age, the de- fense objected to the prosecutrix's being put on as a witness, on the ground of incompetency. On examination by the court she testified that she goes to school, knows her A, B, C's, and can read and write; that she knows she had sworn to tell the truth and she would be put in jail if she did not do so. She was held to be a competent witness. ]i b [Objection was made in a rape case that the prosecuting witness, being only six years old, was incompetent to testify. On examination by the court she stated that she had gone to school and knew her A, B, C's; she told the name of her teacher, the names of her brother and other relatives, and the school her brother attended; that her mother was dead, but that her father was living, and gave his name; that she was hot living now with her father, but with her auntie, giv- ing her name; told how many children her auntie had; that she lived there and that they were good to her; that she went to Sunday-school out at her auntie's church; that she heard about God, and that He was up in Heaven; that she knew about the devij — that he was a bad man; that she knew what it was to tell stories; that she knew what it meant to hold up her hand and swear that she would tell the truth; and that if she did not tell the truth she would go to the bad man and the penitentiary. The judge committed no error in permitting her to testify. ]2 c I In a prosecution for murder, a Chinese witness on being nined as to his competency, said that he did not under- stand what God was. hut was a Chinaman and believed in the (a) [Numerous statutes, in all jurisdictions, have been enacted relating to the competency of witnesses. See 1 Wig- more Bv., 5 488.] '[Douglass v. State, 73 Tex. t'r. R. 385, 165 S. W. 933.] '[Smith v. State. (Tex. Cr. R.), 164 S. W. 838.] 776 COMPETENCY OF WITNESSES. Chinese religion; that he had never been a witness before, and did not know anything about the obligations of an oath under the Christian religion, though he knew that it was his duty to tell the truth in the case. He was thereupon sworn and testified. An objection to his competency was properly overruled.] 3 d [On a prosecution for murder an Indian witness was ex- amined preliminarily through an interpreter, and when asked whether he understood if "he told a lie in the case God or the Great Spirit would be displeased with him, answered that he would tell the truth and did not want to tell any lies; when asked what would be the consequences if he should swear to a falsehood, replied that he did not know anything; that he did not know that it was wrong to swear to a lie, and that he wanted to tell his evidence — that was all he was wait- ing for. The witness was held incompetent as not having capacity to understand the nature of an oath.] 4 e [In a prosecution for rape, objection was made to the com- petency of the prosecutrix, on the ground that she, being just over thirteen years of age, did not understand the nature and obligation of an oath. Upon examination, she stated that she knew it was wrong to tell a lie, and that she would be punished if she swore a lie, but did not know whether she would be put in jail or the penitentiary; that people who told lies would go to hell, al- though some of them might go to heaven. The oath was ex- plained to her, and she apparently had sufficient intelligence to understand its obligations. The testimony of this witness was held to have been prop- erly received. ]r> INCOMPETENCY IN GENERAL. Kansas. Statutes relating to the exclusion of witnesses from testifying must be strictly construed, and the ex- clusion will not be extended by implication to a class not named. (Wife of deceased, superseded as beneficiary by two of his children, may, in a suit brought by her, testify as to conversations by him with her children made in her presence.) — Savage v. Modern Woodmen of America, 84 Kan. 63, 113 P. 802. 3 [Territory v. Yee Shun, 3 N. M. 82, 2 P. 84.] 4 [Priest v. State, 10 Neb. 393, 6 N. W. 468.] '[Carter v. State, (Tex. Cr. R.), 181 S. W. 473. ] COMPETENCY OF WITNESSES. 777 Oklahoma. In order to make available the incompetency of a witness, objection must be to witness's incompetency, and not merely to the competency, relevancy or materiality of the testimony offered by the witness. — Muskogee Elec. Trac. Co. v. Mclntire. 37-Okl. 684, 133 P. 213. Texas. The fact that a witness is confined in jail on a charge of murder does not render him incompetent to testify, where it appears that he had never had a trial nor ever been convicted of that offense. — Moore v. State, (Tex. Cr. R.), 180 S. W. 677. AGE OF WITNESS. There is not any precise age within which children are excluded from giving testimony. Their competency is to be determined not by their age but by the degree of their understanding and knowledge, and comprehension of the nature and effect of an oath. — Flanagin v. State, 25 Ark. 92; Warner v. State, 25 Ark. 447; People v. Bernal, 10 Cal. 67 (child of 8 years admitted). Arizona. A child almost seven years old who did not reveal in his examination very much knowledge of the nature of an oath or the consequences of falsehood, except that he answered that people who told lies would go to jail, is incompetent. — Donnelley v. Territory, 5 Ariz. 291, 52 P. 368. Arkansas. If a child appears to have sufficient natural intelligence to perceive the nature and effect of an oath, he is a competent witness regardless of age. — Crosby v. State, 93 Ark. 156, 124 S. W. 781. In criminal cases, the common law rule in relation to witnesses has not been changed by the code, and there is no presumption as to the capacity of a child under four- teen years of age, to testify. — Crosby v. State, 93 Ark. 156, 124 S. W. 781. Where the testimony of a boy nineteen years of age shows that he had sufficient understanding to apprehend the nature and effect of an oath, he should be allowed to testify.— Wakin v. Wakin, 119 Ark. 509, 180 S. W. 471. A witness of nineteen years of age must be presumed to have common discretion and understanding until the 778 COMPETENCY OF WITNESSES. contrary appears. — Wakin v. Wakin, 119 Ark. 509, 180 S. W. 471. California. Competency of a youthful witness is to be de- termined, not by age, but by degree of understanding and knowledge.— People v. Swist. 136 Cal. 520, 69 P. 223. Sec. 1880, Code Civ. Proc, refers only to children under ten years of age "who appear incapable of receiving just impressions of the facts respecting which they are exam- ined or of relating them truly." — People v. Wilmot, 139 Cal. 103, 72 P. 838. A witness fifteen years of age is presumably a com- petent witness. — People v. Harrison, 18 Cal. App. 288, 123 P. 200. Nebraska. A child possessing sufficient capacity to under- stand the nature and obligation of an oath is a competent witness. (Children of 9 and 11 years admitted.) — Davis v. State. 31 Neb. 247, 47 N. W. 854. In this state, no age is fixed by statute below which a child is presumed to be incompetent to testify, and there is no rule of law outside of statute that a child of six is incompetent to testify. — Evers v. State, 84 Neb. 708, 121 N. W. 1005. New Mexico. Permitting a child of ten years of age to testify, is within the discretion of the trial court. At fourteen years and over there is a presumption of suffi- cient discretion and understanding; under that age no such presumption exists. — Territory v. De Gutman, 8 N. M. 92. 42 P. 68. Oklahoma. There is no precise age fixed at which chil- dren are excluded from giving evidence. Under the stat- ute, intelligence and not age is the proper test by which the competency of a child as a witness must be determined, and where it appears that a child witness had sufficient intelligence to receive just impressions of the facts re- specting which she is to testify, and the capacity to relate them truly, and has received sufficient instruction to ap- preciate the difference between right and wrong, and a proper consciousness of the punishment of false swearing, an objection on the ground of incapacity was properly overruled.— Walker v. State, (Okl. Cr.), 153 P. 209. COMPETENCY OF WITNESSES. 779 Where an objection is made to a witness, on the ground of incompetency by reason of nonage, the competency of the witness is a mixed question of law and fact, to be determined by the trial court upon an examination of the witness, and only a manifest abuse of judicial discretion in deciding that a child is competent to testify, will war- rant interference with such decision. — Walker v. State, (Okl. Cr.), 153 P. 209. South Dakota. Whether a boy eleven years of age has such ability to discriminate between right and wrong, and such understanding of his duty and obligation as a wit- ness to tell only what is true, as to make him a competent witness, is left in the first instance to the discretionary judgment of the trial court, after informing itself by proper examination. — State v. Reddington, 7 S. D. 368, 64 S. W. 170. Texas. A child of ten who said that she did not know what God and the laws of the country would do to her if she swore falsely, but that she would tell the truth, admitted.— Davidson v. State, 39 Tex. 130. A child nine years old, not showing any knowledge of the nature of an oath, excluded. — Williams v. State, 12 Tex. App. 127. A child four years old and utterly incapable of realiz- ing the meaning of an oath is not a competent witness. —Mays v. State, 58 Tex. Cr. R. 651, 127 S. W. 546. Utah. A child with the mental capacity to understand the obligations of an oath, that is, who appreciates the dif- ference between truth and falsehood, that it is his duty to tell the truth, and is capable of receiving just impressions of the facts concerning which he is to testify and has ability to relate them, is a competent witness. — State v. Morasco, 42 Ttah 5, 128 P. 571. DISEASE OF MIND. California. The discharge of a witness from an asylum is prima facie evidence of her restoration to reason and Of being of sound mind; and her competency to testify as a witness is for the court to determine. — Clements v. McGinn. (Cal.), 33 P. 920. 780 COMPETENCY OF WITNESSES. The degree or kind of imbecility of a witness might be such as to render him wholly unfit to testify upon one subject, at the same time he might be fully competent to testify on another. — People v. Harrison, 18 Cal. App. 288, 123 P. 200. In order to prove a girl fifteen years of age incompetent to testify upon the ground of unsoundness of mind, it devolves upon the objecting party to prove such person wanting in sufficient intelligence to observe, recollect and communicate the occurrences concerning which she is to testify. — People v. Harrison, 18 Cal. App. 288, 123 P. 200. Idaho. Incapacity to give intelligent and legal consent to the commission of an act does not necessarily imply in- capacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act. — State v. Simes, 12 Ida. 310, 85 P. 914. Texas. A person who has been rendered stupid by drugs so as to render him incapable of remembering that he had been robbed, is not incompetent as an insane witness under Art. 768 Code Cr. Prac— Pones v. State, 43 Tex. Cr. R. 201, 63 S. W. 1021. A charge defining insanity and the degree of insanity required to render a person incompetent as a witness, ap- proved.— Batterton v. State, 52 Tex. Cr. R. 381, 107 S. W. 826. A witness once insane, but proven to have fully recov- ered his sanity, is a competent witness. — Singleton v. State, 57 Tex. Cr. R. 560, 124 S. W. 92. A witness once insane but not shown to have recovered, should, if timely request is made, be examined into his mental state and condition, before being permitted to. testify.— Mills v. Cook, (Tex. Civ. App.), 57 S. W. 81. Intoxication on the part of a witness does not disqualify him as a competent witness, but goes to his credibility. —Myers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111. Washington. A witness who uses opium is not thereby rendered incompetent as a witness, but the testimony of such witness is very unreliable, and juries should be care- fully cautioned as to the credence to be given him. — State v. White, 10 Wash. 611, 39 P. 160. COMPETENCY OF WITNESSES. 781 DEAF AND DUMB. Colorado. That difficulty attends the examination of a deaf-mute is no reason for excluding his testimony; and he may be examined by means of written questions and answers.— Ritchey v. People, 23 Colo. 314, 47 P. 272. New Mexico. A deaf and dumb child nine years of age was held incompetent to testify in a capital case who had never been educated in the deaf and dumb language and who could not be made to understand the nature of an oath.— Territory v. Duran, 3 N. M. 189, 3 P. 53. Texas. A deaf witness, shown to understand the nature of an oath, is competent.— Kirk v. State, (Tex. Cr. R.), 37 S. W. 440. RELIGIOUS BELIEF. Kansas. A witness is not rendered incompetent to testify by reason of his disbelief in the existence of God. — Dick- inson v. Beal. 10 Kan. App. 233, 62 P. 724. New Mexico. A Chinaman who swears that he is a Christian, and testifies that he is sworn in such a manner that he is to tell the truth, is competent. — Territory v. Yee Shun, 3 N. M. 100, 2 P. 84. OBLIGATION OF OATH. Before being permitted to testify, an infant should be required to show that he knows of the danger and wicked- ness of false swearing, or comprehends the obligations of an oath.— Chapman v. State, (Tex. Cr-. R.), 42 S. \Y. 559; Crosby v. State, 93 Ark. 156, 124 S. W. 781. California. Where a witness being sworn stated that he was fourteen years old and a Chileno. and did not know "the obligation of an oath." whereupon the judge explained to him the nature of such obligation, and he was then permitted to testily, the other party objecting that he did not know the nature of an oath, the witness was held competent. — Fuller v. Fuller. 17 Cal. 605. Kansas. One entirely ignorant of the nature of an oath, is an incompetent witness. — Lee v. Missouri Pac. Ry. Co., 67 Kan. 402, 73 P. 110. 782 COMPETENCY OF WITNESSES. Montana. A witness who answered that he knew the dif- ference between truth and falsehood, and the difference between telling the truth and telling a lie, and that he was there to tell the truth, held competent as a witness. —State v. Cadotte, 17 Mont. 315, 42 P. 857. A Chinaman who testified that he was a Christian, and believed in the Christian's Supreme Being, but did not know the nature of an oath, and said that he could tell what he knew and what he would say would be true, is competent as a witness under Sec. 3161 of the Code of Civil Procedure which provides that all persons, without exception, otherwise than as specified in the next two sec- tions, who, having organs of sense, can perceive, and per- ceiving, can make known their perceptions to others, may be witnesses. — State v. Lu Sing, 34 Mont. 31, 85 P. 521. Nebraska. An Indian witness who states that he is going to tell the truth and not tell any lies, but in answer to re- peated questions did not seem to be able to tell what the consequences would be if he should swear falsely, and could not comprehend the nature of an oath, was held incompetent to testify. — Priest v. State, 10 Neb. 393, 6 N. W. 468. Texas. A child of tender years who knows the nature and obligation of an oath, is competent to testify, her age being immaterial. — Chapman v. State, (Tex. Cr. R.), 42 S. W. 559. A child, in order to be competent as a witness, must manifest sufficient intelligence to convince the court that the nature of the obligation administered was understood. —Moore v. State, 49 Tex. Cr. R. 449, 96 S. W. 327. A child seven years of age who testified that she did not know the nature of an oath or what it meant to be sworn, but did know that she would be punished if she told an untruth, qualified as a competent witness. — Mun- ger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874. DISCRETION OF COURT. Arkansas. It is within the discretion of the trial court, subject to review for clear abuse or manifest error, to determine the competency of an infant witness. — Crosby ». State, 93 Ark. 156, 124 S. W. 781. COMPETENCY OF WITNESSES. 78b California. A ruling of a court under subdivision 1, sec. 1880. Code Civ. Proa, upon the competency of a witness, is subject to review upon appeal. — People v. Harrison, 18 Cal. App. 288, 123 P. 200. It is peculiarly within the sound discretion of the trial court to determine the competency of a child to testify as a witness.— People v. Baldwin. 117 Cal. 244, 49 P. 186; People v. Daily, 135 Cal. 104, 67 P. 16; People v. Harrison, 18 Cal. App. 288. 123 P. 200. Oklahoma. It is within the discretion of the trial court to determine whether a person is of sufficient intelligence to understand the nature of an oath. — City of Guthrie v. Shaf- fer. 7 Okl. 459, 54 P. 698. Texas. It is within the sound discretion of the trial court to determine the competency of an infant witness; and the court's action will not be reviewed unless abuse of such discretion is shown. — Hawkins v State, 27 Tex. App. 273, 11 S. W. 409; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742. Whether a witness is mentally incompetent, is left largely to the discretion of the trial court. — Mills v. Cook, (Tex. Civ. App.). 57 S. W. 81. Utah. Under Sec. 3413. Rev. St. 1898, it is within the sound discretion of the trial court to decide whether a witness is competent. — State v. Blythe, 20 Utah 378, 58 P. 1108. Washington. It is within the sound discretion of the trial court to determine whether a child twelve years of age la competent to testify as a witness. — State v. Bailey, 31 Wash. 89. 71 P. 715; Kalberg v. The Bon Marche, 64 Wash. 452, 117 P. 227. NOTE XL. (To Article 107.) The authorities for the first paragraph are given at great length in Best, ss. 146-166. See. too. T. K. s. 11! 10; [4 Wig- more Ev., § 4!>2 et seq.]. As to paragraph 2, see Best, s. 148; 1 Ph. Ev. 7; 2 Ph. Ev. 457; T. B. s. Till. The con- cluding words of the last paragraph are framed with ref- erence to the alteration in the law as to the competency of 784 COMPETENCY OF WITNESSES. witnesses made by 32 & 33 Vict. c. 68, s. 4. The practice of insisting- on a child's belief in punishment in a future state for lying as a condition of the admissibility of its evidence leads to anecdotes and to scenes little calculated to increase respect either for religion or for the adminis- tration of justice. The statute referred to would seem to render this unnecessary. If a person who deliberately and advisedly rejects all belief in God and a future state is a competent witness, a fortiori, a child who has received no instructions on the subject must be competent also. Article 108.* ( 'o.mpetkncy in criminal (.asks. In criminal cases the accused person and his or her wife or husband, and every person and the wife or husband of every person jointly indicted with him is incompetent to testify, (a) Provided that in any criminal proceeding against a husband or wife for any bodily injury or violence inflicted upon his or her wife or hus- band, such wife or husband is competent and compellable to testify, (b) The following proceedings at law are not crim- inal within the meaning of this article — Trials of indictments for the non-repair of public highways or bridges, or for nuisances to any public highway, river, or bridge; (c) Proceedings instituted for the purpose of try- ing civil rights only;(c) Proceedings on the Revenue side of the Ex- chequer Division of the High Court of Justice, (d) (a) Ft. v. Payne, L. R. 1 C. C. R. 349, and R. v. Thomp- son, id. 377. (b) Reeve v. Wood, 5 B. & S. 364. Treason has been also supposed to form an exemption. See T. E. s. 1237. (c) 40 & 41 Vict. c. 14. (d) 28 & 29 Vict. c. 104, s. 34. COMPETENCY OF WITNESSES. 785 HUSBAND OR WIFE IN CRIMINAL CASES. In General. Colorado. One who is sued for enticing away the plain- tiff's wife, is entitled to an instruction that she could not be called as a witness without her husband's consent, and that nothing unfavorable was to be inferred against the defendant from her failure to testify. — French v. Deane, 19 Colo. 504, 36 P. 609. Kansas. Crim. Code. Sec. 215, provides that no person shall be rendered incompetent to testify by reason of be- ing the husband or wife of the accused. — State v. Marsee, 93 Kan. 600, 144 P. 833. South Dakota. At common law, neither husband nor wife was competent witness in a criminal action against the other, except in cases of personal violence of one against the other.— State v. Burt. 17 S. D. 7, 94 N. W. 409. Texas. In an action charging forgery against the hus- band, it was error to compel defendant's wife under threats of incarceration to produce a writing in her possession, contrary to Code Crim. Proc, articles 775, 774 and 773. — Downing v. State, 61 Tex. Cr. R. 519, 136 S. W. 471. It was not error to exclude impeaching testimony of a wife, that the husband was guilty of another and different offense including moral turpitude. — Pinckard v. State, 62 Tex. Cr. R. 602, 138 S. W. 601. Evidence of the wife cannot be used against the hus- band, except in cases where the offense is personal vio- lence by the husband on the wife. — Johnson v. State, (Tex. Cr. R.), 148 S. W. 328. Where, in an action for perjury committed in a suit for divorce brought by defendant in which he charged im- potence in the wife, it was not error to admit the testi- mony of a doctor, who had examined the wife as to her physical condition, nor for the wife to submit her person to examination, though she, herself, was incompetent to testify. —Edwards v. State, (Tex. Cr. R.), 160 S. W. 709. The law. that a wife cannot testify against her husband in criminal cases, cannot be waived by the husband. — ■ Eads v. State, (Tex. Cr. R.), 170 S. W. 145. 786 COMPETENCY OF WITNESSES. In a criminal case, the acts and declarations of the wife which are res gestae of the transaction, if she is an aider and abettor of her husband in the commission of the of- fense, are admissible against him. — Thompson v. State (Tex. Cr. R.), 178 S. W. 1192; Cook v. State, 22 Tex. App. 511, 3 S. W. 749. Existence of Legal Marriage. Nevada. A witness in a murder case whose testimony was objected to because she was the common law wife of defendant, was not incompetent, she being at the time the wife of another man. — State v. Hancock, 28 Nev. 300, 82 P. 95. Oregon. In a murder case, where the state called as a witness a former wife of defendant, who was permitted to testify over his objection to the effect that the divorce action she had commenced had not been settled at the time of the murder, it appearing that defendant had made neither appearance nor answer or otherwise pleaded, but had perfected an appeal to the supreme court, and it was there held that no appeal could be perfected from a judg- ment or decree given on confession or for want of answer, the former wife was a competent witness as to acts com- mitted after the decree had been entered. — State v. Leasia, 45 Or. 410, 78 P. 328. In a case where defendant was indicted for forgery, the wife of defendant, who was not such at the time of the (rial, was a competent witness as to any matter within her knowledge except communications had between them during marriage. — State v. Luper, (Or.), 95 P. 811. Texas. A witness who has not been legally married to defendant is a competent witness against him. — Crow v. State, (Tex. Cr. R.), 72 S. W. 392. Effect of Marriage After Offense. Arkansas. Under Acts 1913, p. 408, making it an offense to bring a woman into the state for immoral purposes, the injured female is a competent witness against the accused, notwithstanding the fact that she may have married the accused either before or after the violation of the Act. —Holland v. State, 111 Ark. 214, 163 S. W. 781. COMPETENCY OF WITNESSES. 787 California. A wife is an incompetent witness to a rape committed upon her by a man she subsequently married. —People v. Curiale, 137 Cal. 534, 70 P. 468. Where a witness was the wife of defendant at the time of the commission of his assault upon her, she was com- petent to testify against him, but if she was not his wife at such time, but became such afterwards, she could not testify without his consent. — People v. Johnson, 9 Cal. App. 233, 98 P. 682. The marriage of a girl under the age of consent to de- fendant after his arrest, and before his trial, for a rape committed upon her before their marriage, renders her incompetent to testify against him. — People v. Souleotes, 26 Cal. App. 309, 146 P. 903. Offenses Against Other Spouse. Numerous statutes provide that neither husband nor wife may testify for or against the other, except for a crime or offense committed by one against the other. California: People v. Curiale, 137 Cal. 534, 70 P. 468 (prosecution for intercourse with wife, under age, before marriage; wife incompetent). Colorado: Dill v. People, 19 Colo. 469, 36 P. 229 (perjury of husband in making false affidavit in suit for divorce; wife competent). Nebraska: Lord v. State, 17* Neb. 526, 23 N. W. 507 (adultery of husband; wife competent); Hills v. State, 61 Neb. 589, 85 N. W. 836 (bigamy; wife competent). Texas: Navarro v. State, 24 Tex. App. 378, 6 S. W. 542 (kicking wife, thereby producing abortion; she is a com- petent witness); Johnson v. State, 27 Tex. App. 135, 11 S. W. 34 (separation of pair does not remove the prohi- bition) ; Frazier v. State, 48 Tex. Cr. R. 142, 86 S. W. 754 (assault with intent to commit direct rape on wife; this being no crime, she cannot be permitted to testify) ; Murray v. State, 48 Tex. Cr. R. 141. 86 S. W. 1024 (threats against life of wife; this is an offense against her, and her testimony is admissible). Utah: United States v. Bassett, 5 Utah 131, 13 P. 237 (polygamy; wife competent). 788 COMPETENCY OF WITNESSES. California. Where a husband is charged with having committed a crime of violence upon a woman after his marriage to her, she is a competent witness. — Kantro- witz. In re, 24 Cal. App. 203, 140 P. 1078. Colorado. A wife is a competent witness against her hus- band for perjury in a divorce case. — Dill v. People, 19 Colo. 475, 36 P. 229. New Mexico. The wife is not a competent witness against her husband who is charged with the crime of adultery under a federal statute. — United States v. Meyers, 14 N. M. 522, 99 P. 336. Oklahoma. As adultery is a "public offense" and also a personal offense against the injured husband or wife, they become competent witnesses to prove the offense. — Kit- chens v. State, 10 Okl. Cr. 603, 140 P. 619; Heacock v. State, 4 Okl. Cr. 606, 112 P. 949. Texas. In this state, the wife is not a competent witness against her husband in adultery cases. — Sargent v. State, 61 Tex. Cr. R. 34, 133 S. W. 885. A wife is not a competent witness against her husband in an incest case, though they have since been divorced. — Vickers v. State, (Tex. Cr. R.), 154 S. W. 578. Upon a trial for burglary, the wife of defendant can only be cross-examined in regard to matters about which she testified in chief.— Lewis v. State, (Tex. Cr. R.), 180 S. W. 248. NOTE XLI. (To Article 108.) At Common Law the parties and their husbands and wives were incompetent in all cases. This incompetency was re- moved as to the parties in civil, but not in criminal cases, by 14 & 15 Vict. c. 99, s. 2; and as to their husbands and wives, by 16 & 17 Vict. c. 83, ss. 1, 2. But sec. 2 expressly reserved the Common Law as to criminal cases and proceed- ings instituted in consequence of adultery. The words relating to adultery were repealed by 32 & 33 Vict. c. 68, s. 3, which is the authority for the next article. Persons interested and persons who had been convicted of certain crimes were also incompetent witnesses, but their incompetency was removed by 6 & 7 Vict. c. 85. COMPETENCY OF WITNESSES. 789 The text thus represents the effect of the Common Law as varied by four distinct statutory enactments. By 5 & 6 Will. IV. c. 50, s. 100, inhabitants, &c, were made competent to give evidence in prosecutions of parishes for non-repair of highways, and this was extended to some other cases by 3 & 4 Vict. c. 26. These enactments, how- ever, have been repealed by 37 & 38 Vict. c. 35, and c. 96 (the Statute Law Revision Acts, 1874), respectively. Prob- ably this was done under the impression that the enactments were rendered obsolete by 14 & 15 Vict. c. 99, s. 2, which made parties admissible witnesses. A question might be raised upon the effect of this, as sec. 3 expressly excepts criminal proceedings, and a prosecution for a nuisance is such a proceeding. The result would seem to be, that in cases as to the repair of highways, bridges, &c, inhabitants and overseers are incompetent, unless, indeed, the courts should hold that they are substantially civil proceedings, as to which see R. v. Russell, 3 E. & B. 942. Article 109. [competency of husband and wife.] [Under the rules of the common law, neither husband nor wife is competent as a witness in a cause, civil or criminal, in which the other is a party, or directly interested in the event of the action, and this prohibition extends to actions based on the adultery of either party, (a) This rule, in its strictness is found in hardly any jurisdictions, for statutes have in some de- gree removed the incompetency of a spouse to testify for or against the other, a frequent provi- sion being that the incompetency of such parties to testify shall not apply to civil actions brought by one against the other, nor to criminal prosecu- (a) [1 Greenleaf Ev., § 334.] 790 COMPETENCY OF WITNESSES. tions for a crime committed by one against the other, (b) These statutes vary greatly, however, and will have to be consulted, in order to learn the state of the law in a given jurisdiction.] (c) INCOMPETENCY OF SPOUSE AS WITNESS. Civil Actions. Arkansas. The mere fact that the husband is a party to the record, does not of itself exclude the wife as a witness on behalf of the other parties, since the rule of exclusion is only to be applied to cases in which the in- terest of the husband is to be affected by the testimony of the wife. — Carr v. State, 42 Ark. 204; overruling Casey v. State, 37 Ark. 67, and reaffirming Collier v. State, 20 Ark. 36. A husband is a competent witness in an action where his wife sues as administratrix. — McCamey v. Wright, 90 Ark. 608, 119 S. W. 841. California. The wife of a person indicted for the crime of burglary alleged to have been jointly committed by him and defendant may testify for the state, though her testi- mony would tend to implicate her husband. — People v. Langtree, 64 Cal. 256, 30 P. 813. Even though the husband is insane and cannot consent, the wife cannot testify against him. — Falk v. Wittram, 120 Cal. 479, 52 P. 707. (b) [The following is an example of statutes which are substantially identical in several states: "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding committed by one against the other." Rev. St. Utah, § 3414, subd. 1; Van Alstine's Es- tate, In re, 26 Utah 193, 72 P. 942; 1 Wigmore Ev., § 488.] (c) [1 Wigmore Ev., §§ 488, 600 et seq.] COMPETENCY OF WITNESSES. 791 Kansas. A wife is a competent witness as to the com- munications made to a third person by her husband in her presence and hearing, in all civil actions in which the husband is not a party to the suit, when his rights will not be concluded by any verdict therein, and when such communications are themselves admissible. — Higbee v. McMillan. 18 Kan. 133. Where two defendants are sued jointly, and a joint an- swer and defense is made by them, the wife of one is not competent to testify to a matter sustaining the joint de- fense, and which necessarily affects the right of her hus- band equally with that of his co-defendant. — Arn v. Mat- thews, 39 Kan. 272, 18 P. 65. In a contest over the probate of a will, an adversary proceeding, a husband of a legatee under the will, was not an incompetent witness, such a proceeding not being classed as a civil action. — Lanning v. Gay, 70 Kan. 353, 78 P. 810. Plaintiff, claiming to be the child and sole heir of the deceased owner of the land in controversy, in an action of ejectment to recover possession of real estate, intro- duced her mother as a witness, the latter testifying that she and the deceased owner of said land had been mar- ried but that she had afterward procured a divorce from him; held, that the fact of her divorce being established, she was a competent witness for plaintiff upon the ques- tion of heirship. — Lyon v. Lash, 79 Kan. 342. 99 P. 598. Nebraska. In an action by a husband against his wife to declare a trust in his favor in certain real property held in her name, the husband is not a competent witness. — Reed v. Reed, 70 Neb. 775. 98 N. W. 76. Oklahoma Husband and wife are not competent wit- nesses for each other in civil actions. — Nix v. Gilmer. 5 Okl. 740, 50 P. 131. Where the husband is interested in the result of an action even though it is brought in the name of third parties, his wife is an incompetent witness. — Western National Life Ins. Co. v. Williamson-Halsell-Frasier Co., 37 Okl. 213, 131 P. 691. 792 COMPETENCY OF WITNESSES. Oregon. A husband, objecting to the testimony of his wife on the ground that it was "incompetent, irrelevant and immaterial," and failing to object to her competency as a witness for the reason that she was his wife and therefore not competent to testify against him without his consent, waives all objections to his wife's competency to testify against him generally. — State v. Von Klein, 71 Or. 159, 142 P. 549. Texas. One claiming to be the common law wife of de- cedent, is incompetent to testify where she contests for one-half of her husband's estate. — Schwingle v. Keifer, 105 Tex. 609, 153 S. W. 1132. Utah. A wife may testify for the husband where it ap- pears that he impliedly consents. — Murphy v. Ganey, 23 Utah 633, 66 P. 190. When Interest Is Joint. Kansas. In an action where a husband and wife, together with other persons, have been made parties, and in which the judgment may be rendered for or against any one or more of the plaintiffs, and for or against one or more of the defendants, both the husband and wife are competent witnesses for or against any one or more of either the plaintiffs or defendants, except for or against each other. —Ruth v. Ford, 9 Kan. 17. When their joint interest as parties has ceased to exist, one is incompetent to testify for the other. — Jenkins v. Levis, 25 Kan. 479, 481. Where husband and wife have a joint interest in the action, either is a competent witness for the other. — Chi- cago, K. & W. R. Co. v. Anderson, 42 Kan. 297, 21 P. 1059. Oklahoma. A husband or wife is a competent witness for the other "when they are joint parties and have a joint interest in the action." — Guthrie v. Mitchell, 38 Okl. 55, 132 P. 138; St. Louis & S. F. R. Co. v. Bloom, 39 Okl. 78, 134 P. 432. Husband and Wife As Joint Defendants. Arkansas. A husband is not a competent witness against the wife wherein both are defendants.— Reaves v. Coffman, 87 Ark. 60, 112 S. W. 194. COMPETENCY OF WITNESSES. 793 Idaho. In an action against the husband and wife jointly, where the property rights of the wife were assailed and the husband and codefendant had defaulted, under Sec. 4049, Rev. St. 1887, the wife had the privilege to defend in her own right and also defend her husband's interests and was a competent witness in the case. — Larson v. Carter, 14 Ida. 511, 94 P. 825. Kansas. Where husband and wife are joint defendants, they are by statute competent to testify for or against each other.— Pfefferle v. State, 39 Kan. 128, 17 P. 828. In a foreclosure proceeding against husband and wife, the fact that judgment was first rendered against her hus- band, did not make him any the less a joint party with the wife and therefore an incompetent witness. — Atchison Sav. Bank v. Means, 61 Kan. 857, 58 P. 989. Nebraska. In an action against a husband and wife where the proceeding is adversary, a husband is not a competent witness against the wife, her position being purely de- fensive and she seeking no affirmative relief, and the judgment against her without the testimony of the hus- band could not be sustained. — Weckerly v. Taylor, 74 Neb. 772, 105 N. W. 254. Oklahoma. Where a husband and wife are joint makers of notes and mortgage sued on, and joint defendants, the wife is a competent witness. — Young v. Blackert, (Okl.), 151 P. 1057. Matters of Agency. Arkansas. By statute, either husband or wife may tes- tify for the other in regard to any business transacted by the one for the other in the capacity of agent. — Gunter v. Earnest, 68 Ark. 180, 56 S. W. 876. Under subdivision 4, sec. 3095, Kirby's Digest, a hus- band is a competent witness as the agent of his wife. — Fidelity Phenix Fire Ins. Co. v. Friedman, 117 Ark. 71, 174 S. W. 215. Kansas. Wife acting as agent in protecting property of husband from trespass is competent witness for him. — Fisher v. Conway. 21 Kan. 18, 23. 794 COMPETENCY OF WITNESSES. An agent may testify as to his authority to act for his principal, and this rule is not changed by the fact that the agent is the husband of the plaintiff. — Wichita & W. R. Co. v. Kuhn, 38 Kan. 104, 16 P. 75; Paulsen v. Hall, 39 Kan. 365, 18 P. 225. A husband, as the agent of the wife, is a competent witness to testify to transactions between himself per- sonally as her agent and third parties, in the absence of a statute expressly authorizing it. — Treiber v. McCor- mack, 90 Kan. 675, 136 P. 268. Oklahoma. A husband is an incompetent witness against the wife except concerning transactions as her agent, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communications made by one to the other while the marriage relation existed. — Herron v. M. Rumley Co., 29 Okl. 317, 116 P. 952. Where the wife establishes her agency for her husband, she is a competent witness in an action for or against him.— McDonald v. Cobb, (Okl.), 153 P. 138. The husband of a woman suing for damages for wrong- ful death of her first husband, is incompetent, under Rev. Laws 1910, Sec. 5050, he not acting as her agent in the action.— Smith v. Chicago, R. I. & P. Ry. Co., 42 Okl. 577, 142 P. 398. A husband is a competent witness as to any business transacted by him for his wife as her agent. — Smith v. Travel, 19 Okl. 512, 94 P. 529. It is not error, under Sec. 5842 of the Compiled Laws of Okl., 1909, which provides that a husband or wife are competent to testify for each other concerning transac- tions in which one acted as the agent of the other, for a wife to testify that she was the agent of her husband. —Armstrong, Byrd & Co. v. Crump, 25 Okl. 452, 106 P. 855. Sexual Crimes. Nebraska. Upon a trial for adultery by the husband, the wife is a competent witness against him. — Lord v. State, 17 Neb. 526, 23 N. W. 507. COMPETENCY OF WITNESSES. 795 The wife is a competent witness in behalf of her hus- band in an action for criminal conversation. — Smith v. Meyers, 52 Neb. 70. 71 N. W. 1006. A wife is a competent witness against her husband in a prosecution for bigamy.— Hills v. State, 61 Neb. 589, 85 X. W. 836. South Dakota. Under Comp. Laws Dakota 1887, Sec. 5260, prohibiting a wife from testifying against her husband without his consent, except in a criminal action for a crime committed by him against her, a wife is an incom- petent witness in an action against the husband for incest. —State v. Burt. 17 S. D. 7, 94 N. W. 409. Texas. Upon cross-examination a wife cannot be asked questions the answers to which would establish the ille- gitimacy of her children born in wedlock. — Meyer v. State. (Tex. Cr. R). 41 S. W. 632. Washington. A wife cannot testify against her husband in his action for seduction. — Speck v. Gray, 14 Wash. 589, 45 P. 143. In an action for adultery, the husband of an alleged paramour of defendant is a competent witness, she not being on trial charged with a crime. — State v. Nelson, 39 Wash. 221, 81 P. 721. Article 110. communications during mabbiage. No husband is compellable to disclose any com- munication made to him by his wife during the marriage, and no wife is compellable to disclose any communication made to her by her husband during the marriage, (a) CD 16 & 17 Vict. c. k:;, s :', n is doubtful whether this would apply to a widower or divorced person, questioned after the dissolution <>f the marriage as to what had been communicated to him whilst it lasted. [By the common law of this country, the prohibition operates after the dis- solution of tin- marriage. i Greenl. Bv., § 254; Brown v. W l. 121 Mass. 137; Drew v. Tarbell, llT Mass. :in : Jenne v. Marble. 37 Mich. 319; Crose v. Rutledpe, 81 Til. 2fifi; Litch- field v. Merritt. 102 Mass 620; 1 Witftnore Ev., § 2332 et seq.] 796 COMPETENCY OF WITNESSES. COMMUNICATIONS OF HUSBAND AND WIFE. Communications between husband and wife are inad- missible. — Nolen v. Harden, 43 Ark. 307, 51 Am. Rep. 563; People v. Mullings. 83 Cal. 138, 23 P. 229. California. The relation of husband and wife being shown, neither spouse can be examined as to communica- tions between them, without the consent of the other. — Humphrey v. Pope, 1 Cal. App. 374, 82 P. 223. Kansas. A mother is not an incompetent witness to tes- tify to conversations had with her deceased husband, in a suit brought by her son against his father's estate, since her evidence was not for or against the deceased husband, and his interest in the estate had passed, on his death, to others.— Schaffner's Estate, In re, 92 Kan. 570, 141 P. 251. Nebraska. In an action against a fraternal insurance com- pany upon its certificate payable to the deceased infant children, the husband was an incompetent witness as to communications made to him by his wife, over his or plaintiff's objections. — Metzger v. Royal Neighbors of America, 86 Neb. 61, 124 N. W. 913. Oklahoma. Sec. 6834, Comp. Laws 1909, which provides that a husband or wife shall not disclose communications between them during the marriage relation, does not de- prive the husband or wife of any testimony which either may give in the other's behalf which would be competent if either was not the wife or husband. — Hampton v. State, 7 Okl. Cr. 291, 123 P. 571. Texas. Threats communicated by a deceased husband to his wife, of an intention to kill another, are privileged communications. — Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801. Information coming to a husband or wife in consequence or by reason of the existence of the marriage relation is to be treated as confidential, and the confidence which the law creates while the parties remain in the most in- timate of all relations cannot be broken even after that relation has been dissolved. — Lanham v. Lanham, 105 Tex. 91, 145 S. W. 336. COMPETENCY OF WITNESSES. 797 Utah. Even though a marriage was entered into for the sole purpose of closing the mouth of the wife, and to prevent the government from obtaining her testimony, she was an incompetent witness. — United States v. White, 4 Utah 499, 11 P. 570. Washington. "Any communications." mentioned in Rem. & Bal. Code, Sec. 1214, means confidential communica- tions, or such as were induced by the marriage relation. — State v. Snyder, 84 Wash. 485, 147 P. 38; Sackman v. Thomas, 24 Wash. 660, 64 P. 819. What Are Not Confidential Communications. Nebraska. A woman whose marriage with decedent was annulled during his lifetime because of the existence of a former husband at the time of the marriage, is a com- petent witness against his estate as to facts learned other- wise than by communications from deceased during the existence of the marriage relation. — Thomas v. Estate of John D. Thomas, 64 Neb. 581, 90 N. W. 630. A threatening letter written by the husband to his wife while they were living apart, is not a confidential com- munication between husband and wife within the statute. — McNamara v. McNamara, 99 Neb. 9, 154 N. W. 858. Texas. Charge by wife of murder of another by her hus- band, and his admission of the charge, made in the pres- ence of third persons, is not a privileged communication. —Hampton v. State, (Tex. Cr. Ft.), 183 S. W. 887. Utah. The husband's condition as to being intoxicated, unless it should appear to have been specially confided to the wife in the absence of others, cannot be regarded as in the nature of a confidential communication. — Van Alstine's Estate, In re, 26 Utah 193, 72 P. 942. Washington. Testimony of a married woman that certain property was purchased in part with money given to her by her husband is not a violation of the rule forbidding evidence as to confidential communications. — Sackman v. Thomas, 24 Wash. 660. 64 P. 819. Testimony of a divorced wife that on one occasion she found her then husband in the act of sexual Intercourse 798 COMPETENCY OF WITNESSES. with her daughter, the complaining witness, is not the dis- closing of a confidential communication. — State v. Snyder, 84 Wash. 485, 147 P. 38. Communications In Presence of Third Persons. Kansas. A conversation participated in by a husband and wife and a third person, is in no sense a privileged com- munication and may be narrated in evidence by such third person.— State v. Gray, 55 Kan. 135, 39 P. 1050. A conversation between husband and wife may be tes- tified to by one who overheard it. — State Bank v. Hutch- inson, 62 Kan. 9, 61 P. 443. Texas. A conversation between husband and wife may be testified to by a concealed listener who overheard it or by anyone who should overhear such conversation. — Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801. Communications By Letters. Arkansas. A letter addressed to a third person, given by a prisoner to his wife for delivery, is not a privileged communication, though taken from her against her will. —Ward v. State, 70 Ark. 204. 66 S. W. 926. A letter written by accused to his wife, but handed by the negro messenger to the wife's father before she re- ceived it, is admissible. — Hammons v. State, 73 Ark. 495, 84 S. W. 718. Letters, written by defendant on trial for bigamy, to his first wife, and introduced in evidence only for the pur- pose of establishing the fact of the first marriage, though received by the prosecuting attorney from the present wife through third parties, were competent against de- fendant over his objection that they were privileged com- munications.— McNeill v. State, 117 Ark. 8, 173 S. W. 826; for dissenting opinion, 173 S. W. 1200. Kansas. A letter from husband to wife, delivered by the wife's father to her and handed back to him by her after reading, and afterwards in his custody and control, may be introduced in evidence.— State v. Buffington, 20 Kan. 599. COMPETENCY OF WITNESSES. 799 Oregon. In this state, the fact that letters passing be- tween husband and wife were taken from the person of the husband at the time of his arrest, did not prevent their admissibility.— State v. Wilkins, 72 Or. 77, 142 P. 589. Texas. Letters concerning business, written by a hus- band to his wife, are not admissible even after his death. —Mitchell v. Mitchell. 80 Tex. 101, 15 S. W. 705. After Termination of Marriage. Oklahoma. A divorced wife or husband may testify to independent facts coming within their knowledge after the marriage relation has ceased. — Adkins v. Wright, 37 Okl. 771, 131 P. 686. Texas. The privilege of secrecy as to communications between husband and wife extends beyond dissolution of the marital relations by death or divorce. — Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801. A divorced husband or wife is not permitted to testify against the other after divorce, as to confidential com- munications made during marriage. — Miller v. State, (Tex. Cr. R.), 144 S. W. 239; t,anham v. Lanham, 105 Tex. 91, 145 S. W. 336. Washington. A divorced wife is a competent witness against her former husband except as to communications made during their marriage. — State v. Snyder, 84 Wash. 485, 147 P. 38; State v. Nelson, 39 Wash. 221, 81 P. 721. Article ill.* JUDGES A.\[) ADVOCATES PRIVILEGED AS TO OERTAIK QUESTIONS. It is doubtful whether a judge is compellable to testify as to anything which came to his knowl- edge in court as such judge, (a) It seems that a (a) R. v. Gazard, 8 C. & P. 595. [For judge acting on his own knowledge, or as a witness, see 3 Wigmore Ev„ §§ 1805, 1919.] •See Note at end of chapter. 800 COMPETENCY OF WITNESSES. barrister cannot be compelled to testify as to what he said in court in his character of a bar- rister, (b) PRIVILEGE OF JUDGE. Colorado. It was not error to exclude the testimony of a police magistrate as to the grounds upon which he based his decision of a case tried before him. — Noland v. Peo- ple, 33 Colo. 322, 80 P. 887. KNOWLEDGE OR TESTIMONY OF JUDGE. A trial judge of a court of record, is not a competent witness for one of the parties in a case tried before him. —Rogers v. State, 60 Ark. 76, 29 S. W. 894; Gray v. Crockett, 35 Kan. 66, 10 P. 452; Maitland v. Zanga, 14 Wash. 92, 44 P. 117. A trial judge of a court of record, before whom a cause is tried with a jury, cannot testify for one of the parties thereto, over the objection of the other, as to a material point at issue, in the absence of a statute authorizing him to do so.— Powers v. Cook, (Okl.), 149 P. 1121; State v. Sefrit, 82 Wash. 520, 144 P. 725. The judge may take judicial notice of the reasonable- ness of an attorney's fee demanded, and no evidence there- of need be given. — Edwards v. Grand, 121 Cal. 254, 53 P. 796; Hellier v. Russell, 136 Cal. 143, 68 P. 581; Warnock v. Itawis, 38 Wash. 144, 80 P. 297. Colorado. Knowledge of the judge before whom a case was tried that plaintiff was a foreign corporation does not supply the place of proof. — Utah Nursery Co. v. Marsh, 46 Colo. 211, 103 P. 302. Texas. Where no objection is made to the presiding judge being sworn and testifying or to his evidence, it cannot be made on appeal. — Wright v. McCampbell, 75 Tex. 644, 13 S. W. 293. (b) Curry v. Walter, 1 Esp. 456. [For attorney or coun- sel as witness, see 3 Wigmore Ev., § 19ll.] COMPETENCY OF WITNESSES. 801 ATTORNEY AS WITNESS. An attorney is a competent witness for his client. — Beall v. Territory, 1 N. M. 507; Alexander v. Ransom, 16 S. D. 302, 92 N. W. 418; Mealer v. State, 32 Tex. Cr. R. 102, 22 S. W. 142. California. There is no rule of law which prohibits an attorney of record, who is a witness in a case, from sum- ming it up before the court or jury. If a rule of the court prohibits such attorney from arguing a case without per- mission of the court, the court may give permission. — Branson v. Caruthers, 49 Cal. 374. In a prosecution for obtaining property by false pre- tenses it is permissible for the prosecuting attorney to testify as to information acquired in a civil suit as attor- ney for the adverse party to defendant, which tended to show guilty knowledge — People v. Hamberg, 84 Cal. 468, 24 P. 298. Colorado. An attorney is a competent witness in behalf of his client in the very cause which he prosecutes or de- fends.— Sholine v. Harris, 22 Colo. App. 63, 123 P. 330. Idaho. Attorneys should offer themselves as witnesses for their clients only in case of extreme necessity. — Se- bree v. Smith, 2 Ida. 359, 16 P. 915. Kansas. The fact that a person was an attorney in the case, or that his compensation as such was contingent on success, does not render him incompetent as a witness. —Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370, 21 P. 276. Utah. Attorneys should not be called as witnesses in trials in which they are engaged unless in cases where it is absolutely necessary. — McLaren v. Gillispie, 19 Utah 137, 56 P. 680. NOTE XLII. (To Article 111.) The cases on which these articles are founded are only Nisi Prius decisions; but as they are quoted by writers of eminence (1 Ph. Ev. 139; T. E. s. 859), I have referred to them. 802 COMPETENCY OF WITNESSES. In the trial of Lord Thanet, for an attempt to rescue Arthur O'Connor, Serjeant Shepherd, one of the special com- missioners, before whom the riot took place in court at Maidstone, gave evidence, R. v. Lord Thanet, 27 S. T. 836. I have myself been called as a witness on a trial for perjury to prove what was said before me when sitting as an arbitrator. The trial took place before Mr. Justice Hayes at York, in 1869. As to the case of an advocate giving evidence in the course of a trial in which he is professionally engaged, see several cases cited and discussed in Best, ss. 184-186. In addition to those cases, reference may be made to the trial of Home Tooke for a libel in 1777, when he proposed to call the Attorney-General (Lord Thurlow), 20 S. T. 740. These cases do not appear to show more than that, as a rule, it is for obvious reasons improper that those who con- duct a case as advocates should be called as witnesses in it. Cases, however, might occur in which it might be absolutely necessary to do so. For instance, a solicitor engaged as an advocate might, not at all improbably, be the attesting witness to a deed or will. Article 112. evidence as to affairs of state. No one can be compelled to give evidence re- lating to any affairs of State, or as to official communications between public officers upon pub- lic affairs, except with the permission of the of- ficer at the head of the department concerned, (a) or to give evidence of what took place in either House of Parliament, without the leave of the House, though he may state that a particular per- son acted as Speaker, (b) (a) Beatson v. Skene, 5 H. & N. 838; [4 Wigmore Ev., § 2375.] (b) Chubb v. Salomons, 3 Car. & Kir. 77; Plunkett v. Cob- bett, 5 Esp. 136. COMPETENCY OF WITNESSES. 803 AFFAIRS OF STATE. Pennsylvania. The governor is the absolute judge of what official communications to himself or his department may- or may not be revealed.— Hartranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667. The president of the United States, the governors of the several states and their cabinet officers are not bound to produce papers or disclose information committed to them, in a judicial inquiry, when in their own judgment the disclosure would on public grounds be inexpedient. — Hart- ranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667. United States. Public policy forbids the maintenance of any suit in a court of justice, the trial of which would in- evitably lead to the disclosure of matters which the law regards as confidential and respecting which it will not allow the confidence to be violated. (Action to recover for secret services in entering the Confederate lines dur- ing the Rebellion and remaining there during the war, under contract between claimant and the President.) — Totten v. United States, 92 U. S. 105, 23 L. Ed. 605. Article 113. information as to commission of offenses. In cases in which the government is imme- diately concerned no witness can be compelled to answer any question, the answer to which would tend to discover the names of persons by or to whom information was given as to the commis- sion of offenses. In ordinary criminal prosecutions it is for the judge to decide whether the permission of any such question would or would not, under the cir- cumstances of the particular case, be injurious to the administration of justice, (a) (a) R. v. Hardy, 24 S. T. 811: A Q. v. Bryant, 15 M. & W. 169; R. v. Richardson, 3 F. & F. 693: [4 Wigmore Ev„ 5 2374]. 804 COMPETENCY OP WITNESSES. COMMUNICATIONS AS TO COMMISSION OF OFFENSES. Indiana. Communications made to a prosecuting attorney relative to criminals or suspected persons are privileged, and cannot be divulged without the consent of the person making them. The immunity from disclosure of communi- cations so made is a privilege personal to the one making them, which is not waived by his voluntarily testifying generally, in an action against him for malicious prosecu- tion, in his own behalf, but is waived, if, being a witness in his own behalf, he voluntarily discloses what statements he made to the prosecuting attorney, who may then testify in relation to the communication. — Oliver v. Pate, 43 Ind. 132. Kansas. Communications made by a complaining witness to the prosecuting attorney concerning his knowledge of matters relating to the probable guilt of, or innocence of the defendant are privileged, and cannot be given in evi- dence over his objection in an action against him for malicious prosecution. — Michael v. Matson, 81 Kan. 360, 105 P. 537. Public policy is not served by withholding communica- tions which have not been made in good faith to the prose- cuting officer, but which, on the contrary, are clearly shown to have been made as part of a vile conspiracy to blacken and defame one who is known by the authors of the communications to be wholly innocent of wrong- doing.— State v. Wilcox, 90 Kan. 80, 132 P. 982. Massachusetts. In an action for falsely and maliciously representing to the treasury department of the United States that the plaintiff was intending to defraud the reve- nue, the defendants cannot be compelled to answer in- terrogatories, filed by the plaintiff, inquiring whether they did not give or cause to be given to the department in- formation of supposed or alleged frauds on the revenue contemplated by plaintiff. — Worthington v. Scribner, 109 Mass. 487. North Dakota. A statement made by defendant to the as- sistant district attorney in attempting to have a prosecu- COMPETENCY OF WITNESSES. 805 tion against him dismissed, cannot be considered as privi- leged as communications between attorney and client. — State v. Schumacher. (N. D.), 132 N. W. 143. Article 114. competency of jurors. A petty juror may not (a) and it is doubtful whether a grand juror may(b) give evidence as to what passed between the jurymen in the dis- charge of their duties. It is also doubtful whether a grand juror may give evidence as to what any witness said when examined before the grand jury.(c) JUROR'S TESTIMONY. Nebraska. A juror will not be permitted to state to his fellow jurors, while they are considering their verdict, facts in the case within his own personal knowledge. He should make the same known during the trial, and testify as a witness in the case. — Richards v. State, 36 Neb. 17, 53 N. W. 1027. JUROR'S IMPEACHMENT OF VERDICT. California. A juror cannot impeach a verdict by swear- ing that he did not understand it, or that he was too timid and confused to express his dissent at the time when he ought to have dissented; it having been read by the foreman and by the clerk on the return of the jury into court, and there having been no dissent when the jury were asked if it was their verdict. — People v. Kloss, 115 Cal. 567, 47 P. 459. (a) Vaise v. Delaval, 1 T. R. 11; Burgess v. Langley, 5 M. & G. 722. Best Ev. Am. ed. 561, note. (b) 1 Ph. Ev. 140; T. E. s. 863; State v. Fasset, 16 Conn. 457; Beam v. Link, 27 Mo. 261; Imlay v. Rogers, 2 Halst. N. J. 347. (c) [This is not the general rule in this country. See citations, infra.] 806 COMPETENCY OF WITNESSES. Kansas. On a petition for a new trial, it is not competent to introduce evidence showing what one of the jurors said, after the termination of the original trial, as to what his knowledge, opinions and feelings with reference to the case were at the time of the trial, or prior thereto. — Gottleib Brothers v. Jasper, 27 Kan. 770. Nebraska. Affidavits may be received for the purpose of avoiding a verdict to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself; as where a verdict for dam- ages is ascertained by aggregation and average without subsequent ratification, or where it is made to depend upon chance, or where a part of the jury become so intoxi- cated as to destroy their ability to deliberate and exercise their reason and judgment, or where witnesses are sur- reptitiously called before the jury, and permitted to de- tail the principal facts or any other matter concerning which all or any considerable portion of the jury may tes- tify with equal knowledge, by having seen or heard the misconduct which is alleged to have occurred. (Procuring by jurors of dictionary and statutes for consultation in the jury room.)— Harris v. State, 24 Neb. 803, 40 N. W. 317. TESTIMONY OF GRAND JURORS. California. The fact that a person was called, sworn, and examined as a witness before a grand jury does not come within the rule of secrecy. — People v. Northey, 77 Cal. 618, 19 P. 865. Nevada. Grand jurors may be called to testify to what was proved before them, upon a trial of defendant for per- jury. — State v. Logan, 1 Nev. 509. Oregon. Grand jurors are competent witnesses to con- tradict a witness in a murder case who had been before them at the time defendant was indicted. — State v. Moran, 15 Or. 262, 14 P. 419. Grand jurors are competent to testify to contradictions between the testimony of a witness who appeared before them in the examination and her testimony at the trial. —State v. Brown, 28 Or. 147, 41 P. 1042. COMPETENCY OF WITNESSES. 807 A grand juror, under Sec. 1427, L. O. L., cannot be ques- tioned for anything he may say or do while acting as such, except for perjury of which he may be guilty; but to permit a grand juror to testify that defendant was ex- amined before a grand jury was not error. — State v. Boysen, 76 Or. 48, 147 P. 927. The foreman of a grand jury may testify that prosecut- ing witness was before the grand jury, and that it returned a true bill against defendant. — State v. Boysen, 76 Or. 48, 147 P. 927. Texas. In a prosecution for murder, it was not error to admit the testimony of grand jurors to prove that the tes- timony of the state's witness before a grand jury was con- trary to his testimony upon the trial. — Clanton v. State, 13 Tex. App. 139; overruling Ruby v. State, 9 Tex. App. 353. Utah. A grand juror may testify to a confession of de- fendant made before the grand jury, under the provisions of Sec. 4721, Compiled Laws 1907.— United States v. Kirk- wood, 5 Utah 123, 13 P. 234. Foreman of grand jury may testify that defendant gave evidence before such jury as to an offense of robbery com- mitted upon him by one J. S., and that at the time of its alleged occurrence he, the defendant, was running a gam- bling house and faro game. — People v. Reggel, 8 Utah 21, 28 P. 955. Arthi.k 115.* i'kokkssional. com m ink ations. No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client's express consent, to disclose any communication, oral or documentary, made to him as such legal adviser, by or on be- •See Note at end of chapter, 808 COMPETENCY OF WITNESSES. half of his client, during, in the course, and for the purpose of his employment, whether in refer- ence to any matter as to which a dispute has arisen or otherwise, or to disclose any advice given by him to his client during, in the course, and for the purpose of such employment. It is immaterial whether the client is or is not a party to the action in which the question is put to the legal adviser. This article does not extend to — (1) Any such communication as aforesaid made in furtherance of any criminal purpose; (a) (2) Any fact observed by any legal adviser, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether his attention was directed to such fact by or on behalf of his client or not ; (3) Any fact with which such legal adviser be- came acquainted otherwise than in his character as such. The expression "legal adviser" includes barristers and solicitors, (b) their clerks, (c) and (a) Follett v. Jefferyes, 1 Sim. n. s. 17; Charlton v. Coombes, 32 L. J. Ch. 284. These cases put the rule on the principle, that the furtherance of a criminal purpose can never be a part of a legal adviser's business. As soon as a legal adviser takes part in preparing for a crime, he ceases to act as a lawyer and becomes a criminal, — a conspirator or accessory as the case may be. People v. Blakeley, 4 Par- ker, C. R. 176; Graham v. People, 63 Barb. 468. (b) Wilson v. Rastall, 4 T. R. 753. As to interpreters, id. 756. (c) Taylor v. Foster, 2 C. & P. 195; Poote v. Hayne, 1 C. & P. 545. Quaere, whether licensed conveyancers are within the rule? Parke, B., in Turquand v. Knight, 7 M. & W. 100, thought not. Special pleaders would seem to be on the same footing. COMPETENCY OF WITNESSES. 809 interpreters between them and their clients. It does not include officers of a corporation through whom the corporation has elected to make state- ments, (d) Illustrations. (a) A. being charged with embezzlement, retains B, a bar- rister, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of B's em- ployment. This being a fact observed by B in the course of his em- ployment showing that a fraud has been committed since the commencement of the proceedings, is not protected from disclosure in a subsequent action by A against the prosecutor in the original case for malicious prosecution. 1 (b) A retains B, an attorney, to prosecute C (whose prop- erty he had fraudulently acquired) for murder, and says, "It is not proper for me to appear in the prosecution for fear of its hurting me in the cause coming on between myself and him; but I do not care if I give £10,000 to get him hanged, for then I shall be easy in my title and estate." This communication is not privileged. 2 PROFESSIONAL COMMUNICATIONS. General Rule. Arkansas. The protection of privilege extends to every communication which the client makes to his legal adviser, for the purpose of professional advice or aid upon the sub- ject of his rights and liabilities. — Bobo v. Bryson, 21 Ark. 387, 76 Am. Dec. 406. California. In a will contest case, the testimony of a stenographer of the attorney for one of the proponents, who had met proponent and had had several conversations with him and had formed an opinion as to his condition mentally and physically, is not privileged under subdivi- sion 2, Sec. 1881, Code Civ. Proc, which provides that (d) Mayor of Swansea v. Quirk, L. R. 5 C. P. D. 106. 1 Brown v. Foster, 1 H. & N. 736. 2 Annesley v. Anerlesea, 17 S. T. 122J-1324. 810 COMPETENCY OP WITNESSES. an attorney's stenographer cannot be examined, without his consent, concerning any fact learned while acting in such capacity. — Loveland's Estate, In re, 162 Cal. 595, 123 P. 801. Colorado. If a person in respect to his business affairs, or troubles of any kind, consults with an attorney in his professional capacity, with the view to obtaining profes- sional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the pro- fessional employment must be regarded as established, and the communication made by the client, or advice given by the attorney, under -such circumstances, is privileged. —Denver Tramway Co. v. Owens, 20 Colo. 107, 36 P. 848. Nebraska. Letters addressed by a judgment debtor to an attorney for the purpose of employing him professionally to procure a cancellation of the judgment are inadmis- sible.— Nelson v. Becker, 32 Neb. 99, 48 N. W. 962. A communication from a party to an attorney is not privileged when the relation of attorney and client does not exist between them. — Basye v. State, 45 Neb. 261, 63 N. W. 811. A communication to an attorney is not privileged where the relation of attorney and client does not exist. — Home Fire Ins. Co. v. Berg, 46 Neb. 600, 65 N. W. 780. Oklahoma. The fact that no fee was paid, demanded or charged, or that there was a disagreement as to what fee should be charged, the relation of attorney and client being established, communications between the attorney and client are privileged. — Evans v. State, 5 Okl. Cr. 643, 115 P. 809. Texas. An instruction by plaintiff to an attorney to pre- sent his claim to the company for $100 for injuries to his horses is a privileged communication.- — Ft. Worth & D. C. R. Co. v. Lock, 30 Tex. Civ. App. 426. 70 S. W. 456. Washington. An attorney is not privileged from disclos- ing by whom he was employed, or the terms of his em- ployment.— Collins v. Hoffman, 62 Wash. 278, 113 P. 625. Unless the relationship of attorney and client is estab- lished, the testimony of the attorney, that he was fami- COMPETENCY OF WITNESSES. 811 liar with the handwriting of defendant as contained in letters from defendant to the attorney, is not privileged. —State v. Miller, 80 Wash. 75, 141 P. 293. Communications After Termination of Relationship. Colorado. An attorney is employed in his professional capacity when he is voluntarily listening to his client's pre- liminary statement, or giving advice thereon, even though he should, after hearing such statement, decline to be re- tained further, or the client, after hearing the attorney's advice, decline to further employ him; a breach of pro- fessional relations between attorney and client, does .not remove the seal of silence from the lips of the attorney in respect to matters communicated in confidence. — Den- ver Tramway Co. v. Owens, 20 Colo. 107, 36 P. 848. Oregon. After the relation of attorney and client has terminated, a letter written to the attorney and contain- ing an indirect threat of forgery, is not privileged. — Young's Estate, In re, 59 Or. 348, 116 P. 95. Pennsylvania. Reports from an agent of a railroad com- pany to the main department made not in the ordinary course of business but for the special purpose of resisting plaintiff's claim, so that if suit were brought it might be placed in counsel's hands to guide them were in effect made to counsel and come under the rule of privilege as to professional communications. — Davenport Co. v. Pennsylvania R. Co., 166 Pa. 480, 31 Atl. 245. Attorney Acting For Both Parties. California. An attorney acting for both husband and wife in drawing a declaration of homestead may testify as to whether the recital in the declaration of homestead was explained to the wife, if she understood it, what explana- tion was given, and what she knew about the matter, where the action does not concern strangers, but Is be- tween the widow and the deceased husband's legatee. — Bauer, Estate of, 79 Cal. 304, 21 P. 759. Kansas. Communications made to an attorney who is act- ing for both parties to the action and in their presence, cannot be regarded as privileged.— Sparks v. Sparks, 61 Kan. 195, ?>2 P. 892. 812 COMPETENCY OF WITNESSES. Montana. Where a witness is asked to relate what took place at a certain time between plaintiff and defendant while he was acting as attorney for both, such testimony is not privileged. — Lenahan v. Casey, 46 Mont. 367, 128 P. 601. Illegal Matters. California. Communications made to his attorney by a client, of his intention or arrangement to perform some illegal act in the future, are not privileged. — McDonough, ex parte, 170 Cal. 230, 149 P. 566. Oklahoma. Communications between attorney and client which relate to the commission of a crime, are not privi- leged.— Morris v. State, 6 Okl. Cr. 29, 115 P. 1030. In Presence of Third Persons. Communications made in the presence of third parties between attorney and client, are not privileged as to such third parties, who may give in evidence what they have heard. — Alpha Realty & Rental Co. v. Randolph, 23 Colo. App. 69, 127 P. 245; Denver Tramway Co. v. Owens, 20 Colo. 107, 36 P. 848; State v. Perry, 4 Ida. 224, 38 P. 655; Basye v. State, 45 Neb. 261, 63 N. W. 811; Walker v. State, 19 Tex. App. 176. Arkansas. The rule preventing an attorney from disclos- ing communications made to him by his client, must be strictly construed; and statements made by the client to his attorney to be communicated to third parties, are not privileged.— Vittitow v. Burnett, 112 Ark. 277, 165 S. W. 625. Nebraska. A third person who heard a communication made by a client to any attorney may relate the same. — Basye v. State, 45 Neb. 261, 63 N. W. 811. Attorney As Scrivener or Drawer of Will. Communications between the testator and his attorney in reference to the preparation of a will, are not privi- '3/el after the death of the testator. — Shapter's Estate, In re, 35 Colo. 578, 85 P. 688; Black v. Funk, 93 Kan. 60, 143 P. 420; Young's Estate, 33 Utah 382, 94 P. 731. COMPETENCY OF WITNESSES. 813 Where the attorney acts as a mere scrivener for a party, and his advice is not asked as to any legal matters, communications between them at the time are not privi- leged.— Delger v. Jacobs, 19 Cal. App. 197, 125 P. 258; Childress v. State, (Tex. Civ. App.), 148 P. 843. California. An attorney who was made a witness to a will he had drawn for deceased, is thereby made compe- tent, by waiver of the testator, to testify as to declarations made him by deceased, and the instructions given him, and the occurrences at the interview immediately pre- ceding the drafting of the instrument. — Mullin's Estate, In re, 110 Cal. 252, 42 P. 645. Where an attorney was requested by grantor to draw a deed and take the acknowledgment of grantor and his wife, the relationship of attorney and client does not exist, and communications between the attorney and the wife are not privileged. — Ferguson v. Ash, 27 Cal. App. 375, 150 P. 657. Colorado. Privileged communications between attorney and client do not include declarations made to one to whom defendant applied to have a mortgage prepared, when the person to whom application was made was not consulted as an attorney but was merely employed as a scrivener, and it did not appear from the evidence that such person was an attorney-at-law. — Machette v. Wan- less, 2 Colo. 169. Washington. Communications made to an attorney who drew a will at the request of the principal beneficiaries under the will, are not privileged, since he was acting for the testatrix.— Beck's Estate, In re, 79 Wash. 331, 140 P. 340. Production of Papers. Oklahoma. It is a well established exception to the gen- eral rule as to privileged communications between attor- ney and client, that the attorney can be compelled to produce in evidence any paper or record in his possession belonging to his client which the client himself can be compelled to produce; for example, papers where the knowledge of their existence or contents is accessible to others or to the public. — Pearson v. Yoder, 39 Okl. 105, 134 P. 421. 814 COMPETENCY OF WITNESSES. Communications which frequently include the exchange and possession of documents and papers, between attor- ney and client, during and by reason of their relation as such, made in the confidence and for the purpose of en- abling the attorney to perform his professional duty in regard to the matter communicated, are privileged, upon the grounds of public policy. — Pearson v. Yoder, 39 Okl. 105, 134 P. 421. Burden of Proof. California. The burden is upon the party seeking to sup- press the evidence to show that it is within the terms of the statute relating to confidential and privileged com- munications. — Sharon v. Sharon, 79 Cal. 633, 22 P. 26. Idaho. When an attorney i3 called as a witness, and de- clines to answer a question or produce letters or docu- ments, on the ground that the same are privileged under the provisions of subdivision 2, § 5958, Rev. St. 1887, the burden is upon him to show sufficient facts and circum- stances to establish the general privileged character of the communications or documents.— Niday, In re, 15 Ida. 559, 98 P. 845. Waiver of Privilege. Colorado. The statute disqualifying an attorney from giving testimony as to confidential communications of the client, has no application when the client himself dis- closes the transaction in question. — Sholine v. Harris, 22 Colo. App. 63, 123 P. 330; Fearnley v. Fearnley, 44 Colo. 417, 98 P. 819. Oregon. Where plaintiff is herself a witness, she cannot object to her attorney's testimony on the same subject upon the ground that such testimony was privileged as between attorney and client. — Gerlinger v. Frank, 74 Or. 517, 145 P. 1069. NOTE XLIII. (To Article 115.) This article sums up the rule as to professional communi- cations, every part of which is explained at great length, and to much the same effect. 1 Ph. Ev. 105-122; T. E. ss. 832-839; Best, s. 581. It is so well established and so plain in itself that it requires only negative illustrations. It is stated at length by Lord Brougham in Greenough v. Gaskell, 1 M. & K. 98. COMPETENCY OF WITNESSES. 815 Article 116. confidential communications with legal advisers. No one can be compelled to disclose to the Court any communication between himself and his legal adviser, which his legal adviser could not disclose without his permission, although it may have been made before any dispute arose as to the matter referred to. (a) PRIVILEGE OF CLIENT. Kansas. Any communication which an attorney is pre- cluded from disclosing, his client cannot be compelled to disclose, against his objection of privilege. — State v. White, 19 Kan. 445, 27 Am. St. Rep. 137. Nebraska. Statements made by one to an attorney in the capacity of a client communicating with his counsel is a privileged communication, which cannot be lawfully divulged by counsel, nor drawn from the witness on cross- examination without his consent. (Statements made by witness to an attorney at a time when witness and de- fendant were jointly accused and were then acting in conjunction preparing for their defense, excluded, though witness afterwards declined to join defendant in the de- fense to the accusation and turned state's evidence.) — Jahnke v. State, 68 Neb. 154, 94 N. W. 158. Article 117.* cleriiv-mkn and .mkd1cal men. Medical men (a) and [probably] clergymen may be compelled to disclose communications made to them in professional confidence. (a) Minet v. Morgan, L. R. 8 Oh. App. 361, reviewing all the cases, and adopting the explanation given in Pearse v. Pearse, 1 De G. & S. 18-31. of Radcliffe v. Fursman, 2 Br. P. C. 514. A recent illustration will be found in Mayor of Bristol v. Cox, 26 Ch. D. 678. (a) Duchess of Kingston's Case, 20 S. T. 572-573. As to clergymen, see Appendix, Note XLIV. *See Note at end of article. S16 COMPETENCY OF WITNESSES. COMMUNICATIONS TO CLERGY. Arkansas. Communications between a priest or other minister of the gospel, in order to be privileged, must be made to such priest or minister in his professional capa- city and in the course of discipline enjoined by the prac- tice of his church. — Alford v. Johnson, 103 Ark. 236, 146 S. W. 516. Colorado. Defendant cannot claim as privileged, com- munications made to a chief of police voluntarily and without threats or promises, after having sent to the chief word through a Methodist minister who had visited him, that he wished to make such statements, and there was no evidence that defendant was a Methodist, or that the minister was his spiritual adviser. — Mitsunaga v. People, 54 Colo. 102, 129 P. 241. Nebraska. A communication to a minister of the gos- pel or priest is not privileged, where it is shown that it was not made in confidence of the relation, or was not to be kept as a secret.— Hills v. State, 61 Neb. 589, 85 N. W. 836. COMMUNICATIONS TO PHYSICIANS. Arkansas. A physician who visits the patient at the re- quest of the latter's regular physician, but not at the re- quest of the patient, for the purpose of making a diagnosis of the case, comes within the statute prohibiting him from disclosing any knowledge of the patient's condition thus acquired, without the consent of the patient's repre- sentatives. — Mutual Life Insurance Co. v. Owen, 111 Ark. 554, 164 S. W. 720. California. In a will contest a physician will not be al- lowed to testify that he prescribed for deceased for mental trouble.— Flint, In re, 100 Cal. 391, 34 P. 863. In a prosecution for murder, where the defense is in- sanity, a physician may be examined as to diseases for which he has treated defendant. — People v. Lane, 101 Cal. 513, 36 P. 16. The statute preventing the disclosure of confidential communications to physicians does not apply to criminal COMPETENCY OF WITNESSES. 817 cases.— People v. Lane, 101 Cal. 513. 36 P. 16; People v. West, 106 Cal. 89, 39 P. 207. A physician who attended deceased and witnessed his will is not barred from testifying to his mental capacity. — Mullin. In re, 110 Cal. 252, 42 P. 645. Kansas. Statements by a brakeman to a physician called to dress and attend to his wound, with respect to the position he occupied immediately preceding the accident are not confidential or privileged. — Kansas City, Ft. S. & M. R. Co. v. Murray, 55 Kan. 336, 40 P. 646. Nebraska. The testimony of a physician who attended defendant and dressed his wounds, cannot, over objection of defendant, be admitted.— Freeburg v. State, 92 Neb. 346, 138 N. W. 143. North Dakota. The object of the statute, (Sec. 7304, R. C. 1905). which provides that a "physician or surgeon, cannot, without the consent of his patient, be examined as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient." was intended to inspire confidence in the patient and encourage him in making a full disclos- ure to the physician of his ailments, and prevent the phy- sician from making known to the curious such ailments. — Booren v. McWilliams. 26 N. D. 558, 145 N. W. 410. Privileged Facts. Colorado. Under Rev. St. 1908. Sec. 7274, (Courtrighfs Colo. Stat.), it was not error to permit a physician who attended defendant, who was suffering from a gunshot wound, to testify that defendant refused to allow him to remove the bullet, or to tell him how he received the wound, such testimony not being necessary information to enable the physician to prescribe or to act for his patient.- Cook v. People, 60 Colo. 263. 153 P. 214. Kansas. The time, manner, and circumstances of a street car accident, were not confidential facts which could be claimed as privileged communications between physician and patient. — Armstrong v. Topeka Ry. Co., 93 Kan. 493, 144 P. S47. 818 COMPETENCY OF WITNESSES. Nebraska. The testimony of physicians who testify as to the condition and the cause of death of one who has died from the effects of an abortion criminally produced, is not privileged under the laws of this state.— Thrasher v. State, 92 Neb. 110, 138 N. W. 120. Waiver of Privilege. Arkansas. An assured may, by his written application for insurance, signed by him, waive his right to object to the evidence of his physician relative to information obtained by him while attending assured in the character of a physician. — National Annuity Ass'n v. McCall, 103 Ark. 201, 146 S. W. 125. In an action to recover upon an accident insurance pol- icy, the fact that plaintiff makes no issue upon which it is necessary for the introduction of testimony by her phy- sicians and merely mentions, in her complaint, the al- leged cause of the accident, does not open the way for the introduction of testimony which it was her privilege, under the statute, to exclude. — Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S. W. 387; Mo. & N. A. R. Co. v. Daniels! 98 Ark. 352, 136 S. W. 651; K. C. So. Ry. Co. v. Miller, 117 Ark. 396, 175 S. W. 1164. Where the policy of insurance does not contain a pro- vision of waiver of the privilege of the examining phy- sician to testify, the introduction in evidence of the cer- tificate of death given by the physician of the insured, does not waive the privilege of the statute against phy- sicians testifying concerning information received in the course of professional employment, the certificate itself not being introduced in evidence by plaintiff for the pur- pose of establishing the truth of its contents. — Fidelity & Cas. Co. v. Meyer, 106 Ark. 91, 152 S. W. 995. California. In making an attending physician a witness to his will, the deceased waived the privilege allowed a patient to have his disclosures kept secret, and invited a full and proper examination of the matters and facts upon which the lips of the physician would otherwise have been sealed. (Testimony as to mental capacity.) — Mullin's Estate, In re, 110 Cal. 252, 42 P. 645. COMPETENCY OF WITNESSES. 819 Idaho. In an action for damages for personal injuries, plaintiff, by calling her regular physician as a witness, did not thereby waive the privilege of objecting to the testimony of another physician who had examined her injuries and was called by the defendant. — Jones v. City of Caldwell, 20 Ida. 5, 116 P. 110. Kansas. After the decedent's death, her heirs at law or personal representatives may waive the privilege dece- dent may have had as to communications with her phy- sician.— Fish v. Poorman, 85 Kan. 237, 116 P. 898. Nebraska. Plaintiff, having testified in part as to a confi- dential communication with her physician, the whole of the "same subject" may be inquired into by the other party and it is within the discretion of the trial court, subject to review upon appeal in case of clear abuse of such discretion, to determine whether the evidence offered is within the same subject. — Struble v. Village of De Witt, 89 Neb. 726, 132 N. W. 124. Oklahoma. Plaintiff, having offered himself as a witness and testified in regard to his injuries, thereby waives the privilege of objecting to the testimony of the physician who examined him. — Fulsom-Morris Coal & Mining Co. v. Mitchell, 37 Okl. 575, 132 P. 1103. Oregon. When plaintiff testified on the subject of her in- juries, she waived the privilege of objecting to the testi- mony of her physician on the same subject when called by the defendant, she not having called him, though he had examined her injuries. — Forrest v. Portland Ry., Light & Power Co., 64 Or. 240, 129 P. 1048. NOTE XLIV. (To Article 117.) The question whether clergymen, and particularly whether Roman Catholic priests, can be compelled to disclose con- fessions made to them professionally has never been sol- emnly decided in England, though it is stated by the text writers that they can. [1 Greenl. Kv.. § 247.] See 1 Ph. Dr. 18»; T. E. ss. 837-838; R. N. P. 190; Starkle, 40. The question is discussed at some length in Best, ss. 683-584; and a pamphlet was written to maintain the existence of the privilege by Mr, Baddeley in 1865. Mr. Best shows clearly that none of the decided cases are directly In point, except Butler v. Moore (MacNally, 253-254), and possibly R. v. 820 COMPETENCY OF WITNESSES. Sparkes, which was cited by Garrow in arguing Du Barre v. Livette before Lord Kenyon (1 Pea. 108). The report of his argument is in these words: "The prisoner being a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted; and that confession was permitted to be given in evidence on the trial" (before Buller, J.), "and he was convicted and executed." The report is of no value, resting as it does on Peake's note of Garrow's statement of a case in which he was probably not personally concerned; and it does not appear how the objection was taken, or whether the matter was ever argued. Lord Ken- yon, however, is said to have observed: "I should have paused before I admitted the evidence there admitted." Mr. Baddeley's argument is in a few words, that the privi- lege must have been recognized when the Roman Catholic religion was established by law, and that it has never been taken away. I think that the modern Law of Evidence is not so old as the Reformation, but has grown up by the practice of the courts, and by decisions in the course of the last two centuries. It came into existence at a time when excep- tions in favor of auricular confessions to Roman Catholic priests were not likely to be made. The general rule is that every person must testify to what he knows. An ex- ception to the general rule has been established in regard to legal advisers, but there is nothing to show that it extends to clergymen, and it is usually so stated as not to include them. This is the ground on which the Irish Master of the Rolls (Sir Michael Smith) decided the case of Butler v. Moore in 1802 (MacNally, Ev. 253-254). It was a demurrer to a rule to administer interrogatories to a Roman Catholic priest as to matter which he said he knew, if at all, pro- fessionally only. The Judge said, "It was the undoubted legal constitutional right of every subject of the realm who has a cause depending, to call upon a fellow-subject to testify what he may know of the matters in issue; and every man is bound to make the discovery, unless specially exempted and protected by law. It was candidly admitted, that no special exemption could be shown in the present instance, and analogous cases and principles alone were relied upon." The analogy, however, was not considered sufficiently strong. Several judges have, for obvious reasons, expressed the strongest disinclination to compel such a disclosure. Thus Best, C. J., said, "I, for one, will never compel a clergyman to disclose communications made to him by a prisoner; but if he chooses to disclose them I shall receive them in evi- dence" (obiter, in Broad v. Pitt, 3 C. & P. 518). Alderson, B., thought (rather it would seem as a matter of good feel- ing than as a matter of positive law) that such evidence should not be given. R. v. Griffin, 6 Cox, Cr. Ca. 219. COMPETENCY OF WITNESSES. 821 Article 118. production of title-deeds of witness not a party. No witness who is not a party to a suit can be compelled to produce his title-deeds to any prop- erty, (a) or any document the production of which might tend to criminate him, or expose him to any penalty or forfeiture ;(b) but a witness is not en- titled to refuse to produce a document in his pos- session only because its production may expose him to a civil action, (c) or because he has a lien upon it. (d) No bank is compellable to produce the books of such bank, except in the case provided for in arti- cle 37. (e) PRODUCTION OF PRIVILEGED DOCUMENTS. Arkansas. While a circuit judge has power to order the election commissioners to produce poll books to be used as evidence, he cannot order them taken out of their cus- tody.— Bowden v. Webb, 116 Ark. 310, 173 S. W. 181. (a) Pickering v. Noyes, 1 B. & C. 263; Adams v. Lloyd, 3 H. & N. 351. (b) Whitaker v. Izod, 2 Tau. 115; [1 Greenl. Ev., §§ 451, 453]. (c) Doe v. Date, 3 Q. B. 609, 618; [1 Greenl. Ev., § 452]. (d) Hope v. Liddell, 7 De G. M. & G. 331; Hunter v. Leath- ley, 10 B. & C. 858; Brassington v. Brassington, 1 Si. & Stu. 455. Jt has been doubted whether production may not be refused on the ground of a lien as against the party requir- ing the production. This is suggested in Brassington v. Brassington, and was acted upon by Lord Dennian, in Kemp v. King, 2 Mo. & Ko. 437; but it seems to be opposed to Hunter v. Leathley, in which a broker who had a lien on a policy for premiums advanced was compelled to produce it in an action against the underwriter by the assured who had created the lien. See Ley v. Barlow (Judgt. of Parke, B.), 1 Ex. 801. (.•) 12 & 43 Vict. c. 11. [This is peculiar to English law.] 822 COMPETENCY OF WITNESSES. Federal. The fact that certain drawings necessary to be used in evidence contained a secret method of manufac- turing a rail, constituting a trade secret, was not sufficient to justify its owners from producing it. — Johnson Steel Co. v. North Branch Steel Co., 48 Fed. 191. United States. A collector of internal revenue cannot be compelled to produce reports, papers, documents or exemp- lifications in his office, or copies of the same, or to permit copies thereof to be made, or to testify as to their contents, except as may be directed by the Secretary of the Treas- ury.— Boske v. Comingore, 177 U. S. 459, 44 L. Ed. 846, 20 Sup. Ct. Rep. 701. Article 119. production of documents which another person, having possession. could refuse to produce. No solicitor, (a) trustee, or mortgagee can be compelled to produce (except for the purpose of identification) documents in his possession as such, which his client, cestui que trust, or mort- gagor would be entitled to refuse to produce if they were in his possession ; nor can any one who is entitled to refuse to produce a document be compelled to give oral evidence of its contents, (b) PRODUCTION OF ANOTHER'S DOCUMENTS. An attorney on the trial of a cause is not obliged to produce a paper which his client has intrusted to him as counsel in the case, and in professional confidence. — Lynde v. Judd, 3 Day (Conn.) 499; Jackson v. Burris, 14 Johns. (N. Y.) 391; Durkee v. Leland, 4 Vt. 612. (a) Volant v. Soyer, 13 C. B. 231; Phelps v. Prew, 3 E. & B. 431; [1 Greenl. Ev., § 24C]. (b) Davies v. Waters, 9 M. & W. 608; Few v. Guppy, 13 Beav. 454. COMPETENCY OF WITNESSES. 823 Massachusetts. Where a practitioner of the court held a paper delivered to him by his client to be used in defend- ing a pending action, which the grand jury desired to see, the court held that he was not bound to produce it.— Anonymous, 8 Mass. 370. In a suit on a note, a third party claiming to be the owner and in possession of it cannot be compelled to produce it for use as evidence by plaintiff, since this would in effect be a determination by the judge of the rights of witness to such note without his being made a party.— Cobb v. Tirrell, 141 Mass. 459, 5 N. E. 828. Vermont. The court of chancery has power to compel a party to discover and produce any book or writing which is in his possession or power and which is material for the establishment of the issues to be established by the orator. —Vermont Farm Mach. Co. v. Batchelder, 68 Vt. 430, 35 Atl. 378. Federal. If a witness cannot claim immunity for himself from producing documents he cannot claim it for others. (Officer of corporation refusing to produce papers on ground that they would incriminate corporation.) — Peas- ley. In re. 44 Fed. 271. If documents are not privileged while in the hands of a party he cannot make them privileged by handing them to his counsel. — Edison Elec. Co. v. United States Elec. Co., 44 Fed. 294. - Akth lb 120. UII.NKss not TO BE (KMI'KU.KIi To tN CHIMIN ATE HIMSELF. No one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the witness [or the wife or husband of the witness] to any criminal charge, or to any penalty or forfeiture which the judge regards as reasonably likely to be preferred 824 COMPETENCY OF WITNESSES. or sued for; (a) but no one is excused from an- swering any question only because the answer may establish or tend to establish that he owes a debt, or is otherwise liable to any civil suit, either at the instance of the Crown or of any other person. (b) Illustrations. (a) [Petitioner in habeas corpus proceedings, being called as a witness on a preliminary examination of another per- son for having allowed petitioner to be registered as a voter knowing that he was not entitled to such registration, was asked the following questions, among others: Q. Did you have any conversation with Mr. Steinberger (the defendant) on the 3d day of last October respecting your going and pro- curing yourself to be placed upon the great register of this county? Q. Or the precinct register 01 this city and county? Q. Did you register or procure your name to be placed upon the precinct register of the 1st precinct of the 43d assembly district on the 3d of last October? Q. Were you present at the Baldwin Hotel with Mr. Steinberger on the 3d day of October? Q. At Mr. Steinberger's direction, did the clerk of the Baldwin Hotel furnish you with a key to a certain room in the hotel? The witness refused to answer any of these questions, and was committed for contempt. Held, that though the answers to the questions might tend to incriminate him, yet as the statute expressly provided (a) R. v. Boyes, 1 B. & S. 330; [4 Wigmore Ev., § 2250 et seq.]. As to husbands and wives, see I Hale, P. C. 301; R. v. Cliviger, 2 T. R. 263; Cartwright v. Green, 8 Ve. 405; R. v. Bathwick, 2 B. & Ad. 639; R. v.' All Saints, Worcester, 6 M. & S. 19 4. These cases show that even under the old law which made the parties and their husbands and wives incompetent witnesses, a wife was not incompetent to prove matter which might tend to criminate her husband. R. v. Cliviger assumes that she was, and was to that extent over- ruled. As to the later law, see R. v. Halliday, Bell, 257. The cases, however, do not decide that if the wife claimed the privilege of not answering she would be compelled to do so, and to some extent they suggest that she would not. (b) 46 Geo. III. c. 37. See R. v. Scott, 25, 128, and sub- sequent cases as to bankrupts, and Ex parte Scholfield, L. R. 6 Ch. Div. 230. COMPETENCY OF WITNESSES. 825 that a person offending against the act under which the de- fendant was being examined should be a competent witness against another so offending, and that the testimony thus given should not be used against the witness, nor should he be prosecuted for the offense about which he testified, peti- tioner could not incriminate himself by answering the ques- tions, and committed contempt in refusing to do so.] 1 (b) [Petitioner in habeas corpus proceedings was jointly indicted with others on a charge of keeping for sale, offering for sale, and selling lottery tickets. After the parties had gone to trial, the case was dismissed as to petitioner, and he was placed on the stand by the state, being asked the following questions: "Do you know of your own knowledge whether or not any lottery tickets were kept for sale, offered for sale, or sold, at the 'Lucky Corner' on or about the 10th day of February of this year?" The witness declined to answer on the ground that the an- swer would tend to incriminate him of an offense against the laws of this state, and was committed for contempt. It was held that as the petitioner had acted as agent of his co- defendants at said "Lucky Corner," and there were then pend- ing several other cases against him for selling lottery tick- ets at said place, he rightfully refused to answer.] 2 SELF INCRIMINATION. General Principles. A witness is not bound to answer a question which would tend to expose him to conviction of crime. — Pleas- ant v. State, 15 Ark. 624; Anderson v. State, 8 Okl. Cr. 90, 126 P. 840; State v. Coella, 3 Wash. 99, 28 P. 28 (whether she was a prostitute). Arkansas. The constitutional provision that no person shall be a witness against himself in any criminal case, is paramount to any public policy or necessity for pun- ishing false swearing.— Claborn v. State, 115 Ark. 387, 171 S. W. 862. California. Penal Code Sec. 367c, as amended by St. 1913, p. 218, *which provides that anyone driving an automobile which strikes another, must stop his car, give the per- son struck his car number and his name and address and ■[Cohen, ex parte, 104 »'al. 524, 38 P. 864.] •[Park, ex parte. 37 Tex. Cr. R. 590, 40 S. W. 300.] 826 COMPETENCY OF WITNESSES. the name of the owner of the car and providing as a pen- alty, for the violation of the act, both fine and imprison- ment, is not obnoxious to Sec. 13, Art. 1, of the Constitu- tion, which declares that "no person shall be compelled, in any criminal case, to be a witness against himself." — People v. Diller, 24 Cal. App. 799, 142 P. 797. North Dakota. In a proceeding to remove one from of- fice, under Rev. Codes 1905, Sec. 9646, defendant may re- fuse, under Sec. 7252, Laws 1907, to testify to any matter which may tend to render him liable to prosecution in a criminal action.— State v. Borstad, 27 N. D. 533, 147 N. W. 380. Oklahoma. A co-defendant cannot be compelled to testify on behalf of the other defendant, when such testimony would tend to incriminate her, and she declines to an- swer on that account. — Anderson v. State, 8 Okl. Cr. 90, 126 P. 840. For an interesting account of the origin of the law against compelling a person to give evidence against himself which would tend to incriminate him. — Scribner v. State, 9 Okl. Cr. 465, 132 P. 933. Texas. No person can be compelled to testify against himself in a criminal case, nor give testimony on the trial of another person, from which a prosecution might- or can be founded against him.— Muncy, ex parte, 72 Tex. Cr. R. 541, 163 S. W. 29. In a civil case, a witness who desires to be relieved from answering an incriminating question, must swear that his answer would incriminate him. He cannot sit silently by and refuse to answer without a reason for his silence. — Sovereign Camp, Woodmen of the World v. Bailey, (Tex. Civ. App.), 163 S. W. 683; Campbell v. Pea- cock, (Tex. Civ. App.), 176 S. W. 774. One jointly indicted with the defendant being tried on a charge of receiving stolen goods may claim his privilege of not testifying on the ground that it will tend to incrim- inate him.— Stanfield v. State, 73 Tex. Cr. R. 290, 165 S. W. 216. COMPETENCY OF WITNESSES. 827 Defendant cannot be compelled to testify against him- self in a criminal case. — Guerrero v. State, 75 Tex. Cr. R. 558, 171 S. W. 731. The rule, that a witness need not answer any question which might incriminate him, applies to civil as well as criminal cases. — Sovereign Camp, Woodmen of the World v. Bailey, (Tex. Civ. App.), 183 S. W. 107. Tendency To Show Crime. If the fact upon which the witness is interrogated forms but a single link in the chain of evidence which would lead to his conviction, he is protected. — Stevens v. State, 50 Kan. 712, 32 P. 350; Tuttle v. People, 33 Colo. 243, 79 P. 1035; People v. Reggel, 8 Utah 21, 28 P. 955; Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411. Arkansas. The witness cannot be required to show how an answer will incriminate him. — Butt, ex parte, 78 Ark. 262, 93 S. W. 992. California. The provision that a person shall not be com- pelled "in a criminal case" to be a witness "against him- self" is to be construed as protecting him from being com- pelled to give any evidence which in a criminal prosecution against himself might in any degree tend to establish the offense with which he is charged. — Cohen, ex parte, 104 Cal. 524, 38 P. 364. Colorado. The constitutional provision that no person shall be compelled to testify against himself was not in- tended merely to protect a party from being compelled to make confession of guilt, but protects him from being compelled to furnish a single link in a chain of evidence by which his conviction of a criminal offense might be se- cured.— Tuttle v. People, 33 Colo. 243, 79 P. 1035. Kansas. The witness cannot be required to answer ques- tions tending to show that the acts which he refuses to disclose were not done under such circumstances as would constitute a crime under the statute. — Stevens v. State, 50 Kan. 712, 32 P. 350. Production of Books or Papers. Nevada. One who is not the rightful custodian of the books of a corporation, but has them in temporary cus- 828 [ COMPETENCY OF WITNESSES. tody, apparently for the purpose of putting them out of reach of a grand jury's investigation under the refuge of his constitutional right of their not being used as testi- mony against himself, may be ordered to deliver them to the rightful custodian, and thereafter they may be or- dered to be produced by such custodian. — Hedden, ex parte, 29 Nev. 352, 90 P. 737. Oklahoma. It is improper for the prosecuting attorney to make a demand upon the defendant or his attorneys in a criminal case, in the presence of the jury who are trying him, to produce a deed or any document referred to containing evidence tending to incriminate the de- fendant.— Crump v. State, 7 Okl. Cr. 535, 124 P. 632. The officers of an insolvent state bank cannot disobey, on the ground of the constitutional protection against self crimination, the order to produce and deliver the books, records and papers of such bank to the State Bank Com- missioner.— Burnett v. State, 8 Okl. Cr. 639, 129 P. 1110. Texas. In a criminal prosecution for forgery, defendant cannot be compelled to produce the alleged forged note in his possession, as this would be compelling him to give evidence against himself. — Meredith v. State, (Tex. Cr. R.), 164 S. W. 1019. Washington. A corporation or other person keeping books is not relieved from producing them when they contain matters material to the issue. — Bolster, In re, 59 Wash. 655, 110 P. 547. West Virginia. The written prescriptions of practicing physicians on which a licensed druggist has made sales of intoxicating liquors, and which he has preserved in his possession, as the statute directs, are not his "private papers and documents," within the meaning of the con- stitutional guaranty against compulsory self-crimination. —State v. Davis, 68 W. Va. 142, 69 S. E. 639. Federal. Where officers, going to defendant's place of business under a search warrant, seized two promissory notes signed by defendant, their admission in evidence does not violate his constitutional right not to be com- pelled to give evidence against himself. — May v. United States, 199 Fed. 53. COMPETENCY OF WITNESSES. 829 Compulsory Identification, or Production of Articles. The compulsory exhibition of defendant's person or the use of other means of identification of the criminal by the medium of defendant or by articles connected with him or with the crime, is not a violation of the rule pro- hibiting self-incrimination: Arkansas: Starchman v. State,- 62 Ark. 538, 36 S. W. 940 (drills fitting hole in safe, found in defendant's house). California: People v. Hope, 62 Cal. 291 (tools found in defendant's trunk corresponding with some found in ex- cavation near scene of burglary) ; People v. Knapp. 71 Cal. 1, 11 P. 793 (exhibition of clothing worn by de- ceased); People v. Westlake, 134 Cal. 505, 66 P. 731 (shirts and collars having laundry mark of deceased upon them, together with other articles, found in defendant's trunk) ; People v. Sullivan, 129 Cal. 557, 62 P. 101 (what disposi- tion was made by gun after murder). Nevada: State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530 (compelling defendant against his objection to ex- hibit his arm for the purpose of ascertaining if it bore certain tattoo marks as testified to by a witness). Texas: Walker v. State. 7 Tex. App. 245 (compelling one accused of homicide to make prints of his footsteps in ashes for purposes of identification) ; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188 (clothes worn by deceased, with shot holes in them, exhibited); Gallaher v. State, 28 Tex. App. 247. 12 S. W. 1087 (standing up for identifi- cation, without objection, with a handkerchief over his face and a broad-brimmed hat over his head); Benson v. State, (Tex. Cr. R.). 69 S. W. 165 (accused standing up for identification). Washington: State v. Nordstrom, 7 Wash. 506, 35 P. 382 (boots and muddy socks of defendant exhibited); State v. Cushing, 14 Wash. 527, 45 P. 145 (clothing worn by de- ceased and gun with which the shooting was done). Montana. That shoes taken from defendant without his consent corresponded with tracks found near the scene of the killing is admissible.— State v. Fuller. 34 Mont. 12, 85 P. 369. 830 COMPETENCY OF WITNESSES. Texas. On trial of an indictment for murder, it was not error to permit the prosecution to prove that the examin- ing magistrate had compelled the prisoner to make his footprints in an ash heap, and that they corresponded with footprints found at the scene of the crime. — Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595. Necessity of Claiming Privilege. Where a witness before a grand jury did not claim his privilege, but stated that at the time the person who was being investigated robbed him the witness was running a gambling house and faro game, he may be convicted upon this testimony, together with other evidence subse- quently obtained. — People v. Reggel, 8 Utah 21, 28 P. 955. Persons Claiming Privilege. Colorado. The objection that the answer, if made, may tend to criminate the witness can only be made by the witness himself. It is not such an objection as counsel may take advantage of, to exclude testimony. — Lothrop v. Roberts, 16 Colo. 250, 27 P. 698. The rule that a witness cannot be compelled to testify to facts that would tend to criminate himself is a per- sonal privilege of the witness and cannot be invoked by a defendant on objection to the evidence of an accomplice. — Barr v. People, 30 Colo. 522, 71 P. 392. Washington. Accused cannot object to the testimony of his employe on the ground that it would tend to incrim- inate the employe. — State v. Moser, (Wash.), 162 P. 582. Immunity From Prosecution. California. A witness in a criminal action who has been granted complete immunity from prosecution of the of- fense in reference to which his testimony is given, can- not refuse to answer incriminating questions. — People v. Knowles, 27 Cal. App. 498, 155 P. 137; Clarke, ex parte, 103 Cal. 352, 37 P. 230; Cohen, ex parte, 104 Cal. 524, 38 P. 364, 26 L. R. A. 423, 43 A. S. R. 127. Colorado. After acquittal of a criminal charge it is too late for a witness to refuse to answer questions on the COMPETENCY OF WITNESSES. 831 ground that his answers may tend to incriminate him. — Lothrop v. Roberts, 16 Colo. 250, 27 P. 698. Nevada. A witness cannot refuse to testify on the ground that he would thereby incriminate himself, where, by statute, he would be given immunity from prosecution if he testified.— Hedden, ex parte, 29 Nev. 352, 90 P. 737. Oklahoma. No statute which leaves a party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution. To be valid the statute must afford absolute immunity against future prosecution for the offense to which the question relates. — Gudenoge, ex parte, 2 Okl. Cr. 110, 100 P. 39. Waiver of Right. By voluntarily becoming a witness, a defendant may be cross-examined on all facts relative to the case. — State v. Wells, 54 Kan. 161, 37 P. 1005. Contra, People v. Wong Ah Leong, 99 Cal. 440, 34 P. 105 (can only be cross-exam- ined as to such matters as were gone into on his examina- tion in chief). California. If a witness discloses a part of a transaction with which he is criminally concerned without claiming his privilege he must disclose the whole of it. He can- not, after voluntarily testifying in chief decline to be cross-examined upon the ground that his answers may in- criminate or disgrace him. — People v. Freshour, 55 Cal. 375. A defendant who takes the stand on his own behalf cannot be cross-examined on matters not testified to on his examination in chief.— People v. O'Brien, 66 Cal. 602, 6 P. 695. Defendant's privilege of having the fact of prior con- viction withheld from the jury is waived by his becoming a witness.— People v. Arnold, 116 Cal. 682, 48 P. 803. Where defendant, on trial for murder, makes no ob- jection to physicians examining him, and no fraud is used in securing his permission to such examination, he cannot object to their testimony under the constitutional provi- sion providing that no person shall be compelled, in any 832 COMPETENCY OF WITNESSES. criminal case, to be a witness against himself. — People v. Bundy, 168 Cal. 777, 145 P. 537. Kansas. A defendant who takes the stand and testifies as a witness in his own behalf, may be cross-examined upon matters affecting his character and credibility the same as other witnesses; and the facts developed on the cross-examination, even though they incidentally tend to show that the defendant is guilty of other offenses than that for which he is on trial, become proper evidence in the case, so far as they tend to prove any issue in the case.— State v. Wells, 54 Kan. 161, 37 P. 1005. When a defendant becomes a witness he may be cross- examined as to his past life and conduct which would im- pair his credibility. — State v. Bufnngton, 71 Kan. 804, 81 P. 465. Nevada. Where defendant waives his constitutional privi- lege of remaining silent, and becomes a witness in his own behalf, he cannot assume the right to detail a part of the transaction which he deems favorable to himself and claim exemption from testifying to other facts form- ing a part of the transaction. — State v. Urie, 35 Nev. 268, 129 P. 305. Oklahoma. If a witness elects to waive his privilege and disclose his criminal relations, he is not permitted to stop, but must go on and make a full disclosure. — Hed- den, ex parte, 2 Old. Cr. 110, 100 P. 39. A defendant by availing himself of the statutory privi- lege of becoming a witness has voluntarily changed his status from defendant to witness, and thereby waives his constitutional exemption from being a witness against himself, and places himself in an attitude of any other wit- ness with respect to the right of cross-examination. — Buxton v. State, 11 Okl. Cr. 85, 143 P. 58. Where one jointly indicted with defendant becomes a witness, and he takes the stand, he waives his right to claim immunity from incriminating questions on cross-ex- amination.— Bryan v. State, 11 Okl. Cr. 180, 144 P. 392. Texas. Defendant, who has been examined in chief in his own behalf and cross-examined by the state, and later COMPETENCY OF WITNESSES. 833 recalled by the state for further examination, cannot then object to incriminating questions, upon the ground that he cannot be compelled to testify against himself. — Flow- ers v. State, (Tex. Cr. R.), 152 S. W. 925. An objection by a witness that the answer to the question would tend to incriminate him, must be made at the threshhold. He cannot wait and answer a part and then refuse to answer other questions on cross-ex- amination. If he voluntarily states a part of the testi- mony, he waives his right and cannot afterwards stand on his privilege. — Adams, ex parte, 76 Tex. Cr. R. 277, 174 S. W. 1044. Washington. One who voluntarily offers himself as a witness, cannot invoke that provision of the constitution which guarantees that no person shall be compelled, in any criminal case to give testimony against himself. — State v. Jackson, 83 Wash. 514, 145 P. 470; State v. Dun- can, 7 Wash. 336, 35 P. 117; State v. Ulsemer, 24 Wash. 657, 64 P. 800. Defendant, in a criminal prosecution, who has taken the stand, and been asked if she has ever been convicted before, cannot object to the question as an invasion of her constitutional right to remain silent. — State v. Brown- low, 89 Wash. 582, 154 P. 1099. Determination of Privilege. It is for the court to pass upon the sufficiency of the objection which the witness urges to answering, and not for the witness to decline to give relevant and pertinent testimony, which may be harmless to himself, upon his mere declaration that his answer may tend to incrim- inate or degrade him. — Rogers, In re, 129 Cal. 468, 62 P. 47; Park, ex parte, 37 Tex. Cr. R. 590, 40 S. W. 300. The witness is not the final judge whether the privilege exists in the particular case, but the decision is to be made by the court. —Bradley v. Clark, 133 Cal. 196, 65 P. 395; Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411, 421. Oklahoma. It is for the witness, and not the court, to determine whether or not her testimony will incriminate her.— Anderson v. State, 8 Okl. Cr. 90, 126 P. 840. 834 COMPETENCY OF WITNESSES. Article 121. corroboration, when required. No plaintiff in any action for breach of prom- ise of marriage can recover a verdict, unless his or her testimony is corroborated by some other material evidence in support of such promise, (a) No order against any person alleged to be the father of a bastard child can be made by any jus- tices, or confirmed on appeal by any Court of Quarter Session, unless the evidence of the moth- er of the said bastard child is corroborated in some material particular to the satisfaction of the said justices or Court respectively. (b) When the only proof against a person charged with a criminal offense is the evidence of an ac- complice, uncorroborated in any material particu- lar, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so. (c) CORROBORATION. Of Accomplice. California. The rule that a defendant cannot be con- victed of a criminal offense on the testimony of an ac- complice, unless the same is corroborated, does not apply to a feigned accomplice. — People v. Farrell, 30 Cal. 316. (a) 32 & 33 Vict. c. 68, s. 2. ' Quaere, is he bound to pro- duce the document criminating himself? See Webb v. East, 5 Ex. D. 23, and 109. (b) 8 & 9 Vict. c. 10, s. 6; 35 & 36 Vict. c. 6, s. 4. (c) 1 Ph. Ev. 93-101; T. E. ss. 887-891; 3 Russ. Cri. 600- 611. [The rule is generally otherwise in this country; 3 Wigmore Ev., § 2036 et seq.]. COMPETENCY OF WITNESSES. 835 The testimony of a thirteen-year-old boy acting as an accomplice in the commission of a crime under the threats and coercion of defendant need not be corroborated. — People v. Miller, 66 Cal. 468, 6 P. 99. The rule does not require that an accomplice shall be corroborated in all the essentials of an offense; it is suf- ficient if the corroborating evidence, considered by itself, tends in some way to connect the defendant with the commission of the crime. — People v. Thompson, 16 Cal. App. 748, 117 P. 1033. The statute does not require that the evidence neces- sary to corroborate the testimony of an accomplice should tend to establish the precise facts testified to by the ac- complice; and strong corroborative evidence is not neces- sary to support a judgment of conviction founded upon the testimony of an accomplice, if it tends to connect the accused with the commission of the offense. — People v. Martin, 19 Cal. App. 295, 125 P. 919. The law in this state which declares that no conviction can be had upon the testimony of an accomplice alone "unless he is corroborated by other evidence which in itself and without the aid of the testimony of the accom- plice tends to connect the defendant with the commission of the offense," and that "the corroboration is not suffi- cient if it merely shows the commission of the offense or the circumstances thereof," does not mean that an ac- complice may not be believed by the jury, and such tes- timony is to be given such weight as they may conclude it is entitled to. — People v. Hoosier, 24 Cal. App. 746, 142 P. 514. Idaho. In this state, no person can be convicted of a crime on the testimony of an accomplice, without corro- borative evidence by other witnesses on some material point or circumstance, which of itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. — State v. Grant, 26 Ida. 189, 140 P. 959. Kansas. The uncorroborated testimony of an accomplice is legally sufficient to sustain a verdict. — State v. Patter- son, 52 Kan. 335, 34 P. 784. 836 COMPETENCY OF WITNESSES. It is the duty of the trial judge in a criminal case, if requested to do so, to advise the jury not to convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence as to some material fact.— State v. Patterson, 52 Kan. 335, 34 P. 784. Montana. The corroborative evidence required under Sec. 9290, Rev. Codes, to warrant the conviction of defendant for a crime, must be independent evidence of itself with- out considering the evidence of accomplices. — State v. Lawson, 44 Mont. 488, 120 P. 808; State v. Geddes, 22 Mont. 68, 55 P. 919. Evidence, as a whole, examined and found to contain enough probative value, independent of the testimony of an accomplice, to warrant its submission to the jury, in an action charging defendant with grand larceny. — State v. Biggs, 45 Mont. 400, 123 P. 410. Nebraska. A conviction may rest on the uncorroborated evidence of an accomplice, when, considered with all the testimony, it satisfies the jury, beyond a reasonable doubt, of the guilt of the accused.— Lamb v. State, 40 Neb. 312, 58 N. W. 963. North Dakota. No conviction of any crime can be had upon the uncorroborated testimony of an accomplice; there must be other testimony tending to connect the dc fendant with the commission of the offense, but such corroborative evidence need not cover every material point or be sufficient alone to warrant a verdict of guilty. —State v. Reilly, 22 N. D. 353, 133 N. W. 914. While a conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by other evi- dence which tends to connect defendant with the offense, yet, such testimony need not cover every material point testified to by the accomplice, or be sufficient in itself to warrant a verdict of guilty.— State v. Dodson, 23 N. D. 305, 136 N. W. 789. Oklahoma. It matters not how anxious a jury may be to believe an accomplice, the law is that they cannot con- vict defendant upon the accomplice's evidence, unless cor- roborated by other testimony tending to connect defendant with the offense committed.— Camp v. State, 7 Okl. Cr. 531, 124 P. 331. COMPETENCY OF WITNESSES. 837 Texas. In a prosecution for murder, the testimony of an accomplice may be considered along with other testimony to establish the unlawful killing. — Ingram v. State, (Tex. Cr. R.), 182 S. W. 290. In a criminal action, the testimony of a co-defendant indicted for the same offense, must be corroborated by testimony which tends to connect defendant with the of- fense.— Smith v. State, (Tex. Cr. R.), 182 S. W. 311. Utah. In this state, no person can be convicted of a crime on the testimony of an accomplice without corrobo- rative evidence by other witnesses which of itself and without the aid of the testimony of the accomplice tend to connect the defendant with the commission of the offense.— State v. Park, 44 Utah 360, 140 P. 768. Washington. The testimony of accomplices, without corroboration, may be sufficient to support a conviction for performing an abortion. — State v. Stapp, 65 Wash. 438, 118 P. 337. For burglary.— State v. Mallahan, 66 Wash. 21, 118 P. 898. No corroboration of an accomplice is necessary in this state.— State v. MacLeod, 78 Wash. 175, 138 P. 648. A conviction may be had upon the uncorroborated tes- timony of an accomplice, but defendant is entitled to an instruction, if he requests it, against a conviction on the uncorroborated testimony of an accomplice. — State v. Engstrom, 86 Wash. 499, 150 P. 1173. Another Accomplice As Corroborator. Oklahoma. In a criminal action, if two or more accom- plices testily, the same corroboration is required as if there be but one; an accomplice can neither corroborate himself nor another accomplice. — Cudjoe v. State, (Okl. Cr.), 154 P. 500; Clark v. State. (Okl. Cr.), 154 P. 1005; Mclional.! v. Stair. (Okl. Cr.). 1T>2 V. 610. Texas. One accomplice cannot be corroborated by dec- larations made by him. nor by testimony of another ac- complice.— Holmes v. State, 70 Tex. Cr. R. 214, 156 S. W. 1172. 838 COMPETENCY OF WITNESSES. Defendant, in a criminal case, cannot be convicted alone upon the testimony of an accomplice; nor can two accomplices corroborate each other. — Guiterrez v. State, (Tex. Cr. R.), 173 S. W. 1025. Divorce Cases. A divorce cannot be granted upon the uncorroborated evidence of the plaintiff. — Rie v. Rie, 34 Ark. 37; Cooper v. Cooper, 88 Cal. 45, 25 P. 1062. Colorado. A divorce may be obtained upon the uncorro- borated testimony of the plaintiff alone. — Sylvis v. Sylvis, 11 Colo. 319, 17 P. 912. 1 Perjury or Bribery. In a perjury case the testimony which is required addi- tional to that of one witness must be corroborative of the testimony of the accusing witness, and the corrobora- tion must go beyond slight, indifferent, or immaterial par- ticulars and must go to some one particular false state- ment.— Thomas v. State, 51 Ark. 138, 10 S. W. 193; BroOkin v. State, 27 Tex. App. 701, 11 S. W. 645. Texas. Upon a prosecution for attempting to bribe a witness not to appear and testify against a defendant on trial charged with a crime, corroboration of such witness's testimony is not necessary. — Savage v. State, (Tex. Cr. R.), 170 S. W. 730. Of Prosecutrix in Sexual Crimes. In bastardy proceedings, the uncorroborated evidence of the complaining mother is sufficient to convict, though it is contradicted by defendant. — State v. Tipton, 15 Mont. 74, 38 P. 222; Olson v. Peterson, 33 Neb. 358, 50 N. W. 155. An action for bastardy is a civil proceeding, and a fair preponderance of the evidence only is necessary. — Koepke v. Delfs, 95 Neb. 619, 146 N. W. 962; Libby v. State, 42 Old. 603, 142 P. 406. Arkansas. In this state, the mother is a competent wit- ness in bastardy cases, unless she is incompetent in any case, without corroboration. — Kennedy v. State, 117 Ark. ri3, 173 S. W. 842; Quails v. State, 92 Ark. 200, 122 S. W. 498. COMPETENCY OF WITNESSES. 839 California. Prosecutrix need not be corroborated in a case of rape under age of consent. — People v. Parrish, 25 Cal. App. 314, 143 P. 546. Colorado. In this state, no corroboration is necessary of the victim's testimony in a rape case, to support a con- viction. — Dickens v. People, 60 Colo. 141, 152 P. 909; Bueno v. People, 1 Colo. App. 232, 28 P. 248; Peckham v. People, 32 Colo. 142, 75 P. 422. North Dakota. In this state, in bastardy cases, testimony of the complainant need not be corroborated. — State v. Brunette, 28 N. D. 539, 150 N. W. 271. Texas. A conviction for adultery cannot be sustained on the uncorroborated testimony of the female, she being an accomplice.— Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95. In seduction cases, the seduced woman does not have to be corroborated in each and every particular of what it takes to constitute guilt of the accused. — Gillespie v. State, 73 Tex. Cr. R. 585, 166 S. W. 135; Nash v. Nash, 61 Tex. Cr. R. 269, 134 S. W. 709. Washington. In a prosecution for statutory rape, suffi- cient corroboration of the testimony of prosecuting wit- ness is furnished by a witness who testifies to an admis- sion of a similar act by defendant with the prosecuting witness.— State v. Workman, 66 Wash. 292, 119 P. 751. Corroboration of rape may consist in circumstantial evidence.— State v. Sefrit, 82 Wash. 520, 144 P. 725. In bastardy cases, no corroboration of prosecutrix is necessary.— State v. Morden, 87 Wash. 465, 151 P. 832. Corroboration of Witness Swearing Falsely in Material Matter. If a witness knowingly and wilfully swears falsely in a material matter, his testimony should be rejected entirely unless corroborated by the facts and circumstances of the case, or other credible evidence. — Bonnie v. Earll, 12 Mont. 239, 29 P. 882; People v. Paulsell. 115 Cal. 6, 46 P. 734. 840 COMPETENCY OP WITNESSES. Article 121a. CLAIM ON K STATE OF DECEASED PERSON. Claims upon the estate of deceased persons, whether founded upon an allegation of debt or of gift, ought not to be maintained upon the uncor- roborated testimony of the claimant, unless cir- cumstances appear or are proved which make the claim antecedently probable, or throw the burden of disproving it on the representatives of the de- ceased, (a) Illustrations. (a) A, a widow, swore that her deceased husband gave her plate, etc., in his house, but no circumstances corrobo- rated her allegation. Her claim was rejected. 1 (b) A, a widow, claimed the rectification of a settlement drawn by her husband the night before their marriage, and giving him advantages which, as she swore, she did not mean to give him, and were hot explained to her by him. Tier claim was admitted though uncorroborated. 2 Article 122. number op witnesses. In trials for high treason, or misprision of treason, no one can be indicted, tried, or attainted (unless he pleads guilty) except upon the oath of two lawful witnesses, either both of them to the same overt act, or one of them to one and another (a) [See article 106, supra, for observations upon the stat- utory rule as to survivor's testimony.] ^inch v. Finch, 23 Ch. D. 267. 2 Lovesy v. Smith, 15 Ch. D. 655. In re Garnett, Gandy v. Macaulay, 31 Ch. D. 1, is a similar case. In re Hodgson, Beckett v. Ramsdale, 31 Ch. D., p. 183, the language of Han- nen, J., in words somewhat relaxes the rule, but not, I think, in substance. COMPETENCY OF WITNESSES. 841 of them to another overt act of the same treason. If two or more distinct treasons of divers heads or kinds are alleged in one indictment, one witness produced to prove one of the said treasons and another witness produced to prove another of the said treasons are not to be deemed to be two wit- nesses to the same treason within the meaning of this article, (a) This provision does not apply to cases of high treason in compassing or imagining the Queen's death, in which the overt act or overt acts of such treason alleged in the indictment are assassina- tion or killing of the Queen, or any direct attempt against her life, or any direct attempt against her person, whereby her life may be endangered or her person suffer bodily harm, (b) or to misprision of such treason. If upon a trial for perjury the only evidence against the defendant is the oath of one witness contradicting the oath on which perjury is as- signed, and if no circumstances are proved which corroborate such witness, the defendant is entitled to be acquitted, (c) NUMBER OF WITNESSES. General Rules. The number of witnesses is sometimes limited by rules of court.— Hoskins v. Northern Pac. R. Co., 39 Mont. 394, 102 P. 988; Brady v. Shirley, 18 S. U. 608, 101 N. W. 886. (a) 7 & s Will. 111. <■. :t. ss. -J. I; [ :', Wlgmora Kv.. 5 203G et sei| |. (l.) :\\> & in Geo. ill. c (c) 3 Uuss. on Crimes, T7-ss : [3 Wigmore Kv., 5S 2040- 2043]. 842 COMPETENCY OF WITNESSES. California. A preponderance of evidence does not neces- sarily mean a preponderance of the number of witnesses. —Grant v. McPherson, 104 Cal. 165, 37 P. 864. Colorado. The court may limit the number of experts that may be called upon the trial. — Huett v. Clark, 4 Colo. App. 231, 35 P. 671. It is within the discretion of the trial court to limit the number of witnesses who may be allowed to testify upon a given point. — Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058. Kansas. Every person who is a party to an action, and not incompetent to testify, has a right, in protection of his interests, to be heard as a witness as to what he has seen and knows of the principal matter in controversy; and the court may not, by limiting the number of wit- nesses on a side, deprive him of that right. — Fisher v. Conway, 21 Kan. 18. Montana. The jury are not bound to regard the weight of the evidence as preponderating in favor of the party who produces the greater number of witnesses. — Lehane v. Butte Elec. Ry. Co., 37 Mont. 564, 97 P. 1038. Nebraska. A preponderance of evidence is not determined alone by the'number of witnesses testifying to a particular fact. In determining upon which side the evidence pre- ponderates, the credibility of the witnesses, their situa- tion, interest, means of knowledge, and manner of testi- fying, should be considered.— Fitzgerald v. Richardson, 30 Neb. 365, 46 N. W. 615; Buck v. Hogeboom, 2 Neb. (Unof.) 853, 90 N. W. 635. A jury is not required to decide a disputed proposition of fact merely by a count of witnesses, but should deter- mine which are the most worthy of credit; and where the evidence is conflicting, a verdict based upon the testi- mony of the minority of the witnesses will not be dis- turbed, unless it is manifestly wrong. — Howell Lumber Co. v. Campbell, 38 Neb. 567, 57 N. W. 383. A trial court may limit the number of witnesses that may be called to prove facts collateral to the main issue. — Biester v. State, 65 Neb. 276, 91 N. W. 416. COMPETENCY OF WITNESSES. 843 Where the evidence is conflicting, it is within the prov- ince of the jury sitting at the trial to consider all proved physical facts and conditions attending the main fact for the purpose of arriving at the true solution of the ques- tion presented. They are not bound by the number of witnesses testifying if in the exercise of reasonable judg- ment they are convinced that the truth is shown by the side producing the smaller number of witnesses. — Hos- kovec v. Omaha Street Ry. Co., 85 Neb. 295, 123 N. W. 305. Texas. The proposition that where witnesses are equal in credibility the greatest number must prevail is un- tenable.— Jones v. State, 13 Tex. 168, 62 Am. Dec. 550. Evidence is not weighed by the number but by the credibility of the witnesses, and the probable truth of their testimony. — International & G. N. R. Co. v. Poloma, (Tex. Civ. App.), 123 S. W. 1149. Washington. An instruction that the number of witnesses might control where they are all of the same candor, fair- ness, intelligence, truthfulness, and equally corroborated by other evidence, held not to have misled the jury. — Northern Pac. R. Co. v. Holmes, 3 Wash. Ter. 543, 18 P. 76. In Prosecutions For Perjury. Arkansas. Perjury cannot be established by proof of de- fendant's contradictory statements alone, or by his .ad- missions.— State v. Binkley, 123 Ark. 240, 185 S. W. 279. California. In a prosecution for perjury in falsely testi- fying that witness met a certain cow at a particular place upon the highway at 8 o'clock one morning, it is neces- sary to produce the positive testimony of at least one wit- ness that such meeting did not take place, as that the defendant was not at that time at that place, or that the cow was not there. — People v. Wells, 103 Cal. 631, 37 P. 529. Kentucky. To convict for perjury it is sufficient either that there are two witnesses, or that the testimony of the one witness is corroborated or sustained by other facts appearing in the case or testified to by other witnesses. — Williams v. Commonwealth. 24 Ky. Law Rep. 465, 68 S. W. 871. Mississippi. The state must prove by two witnesses, or by one witness and corroborating circumstances beyond 844 COMPETENCY OP WITNESSES. reasonable doubt that defendant was not present at the place and time of an assault as testified to by him on the trial in which he was a witness. — Whittle v. State, 79 Miss. 327, 30 So. 722; accord: Lee v. State, 105 Miss 539, 62 So. 360. Missouri. A conviction for perjury will not be sustained upon the evidence of a single uncorroborated witness, but it is now held in this state and generally in the courts of other states, that any facts or circumstances which are strongly corroborative of the accusing witness will be suf- ficient. — State v. Blize, 111 Mo. 464, 20 S. W. 210; State v. Faulkner, 175 Mo. 546, 75 S. W. 116. Oklahoma. In a prosecution for perjury, the falsity of the defendant's evidence may be established by circum- stantial evidence, but the facts constituting such circum- stantial evidence must be directly and positively sworn to by at least one credible witness, supported by corro- borating evidence, and, taken as a whole must be of such a conclusive character as to exclude every other reason- able hypothesis except that of the defendant's guilt. — Metcalf, ex parte, 8 Okl. Cr. 605, 129 P. 675. Texas. To convict of perjury there must be the direct testimony of two witnesses or of one witness strongly corroborated. — Brookin v. State, 27 Tex. App. 701, 11 S. W. 645; Reed v. State, (Tex. Cr. R.), 183 S. W. 1168. Washington. Corroboration held sufficient on the facts. —State v. Miller, 80 Wash. 75, 141 P. 293. NOTE XXXIX. (To Chapter XV.) The law as to the competency of witnesses was formerly the most, or nearly the most, important and extensive branch of the Law of Evidence. Indeed, rules as to the incompetency of witnesses, as to the proof of documents, and as to the proof of some particular issues, are nearly the only rules of evidence treated of in the older authorities. Great part of Bentham's "Rationale of Judicial Evidence" is directed to an exposure of the fundamentally erroneous nature of the theory upon which these rules were founded; and his attack upon them has met with a success so nearly complete that it has itself become obsolete. The history of the subject is to be found in Mr. Best's work, book i. part i. ch. ii. ss. 132-188. See, too, T. E. 1210-1257, and R. N. P. 177-181. As to the old law, see 1 Ph. Ev. 1-104. EXAMINATION OF WITNESSES 845 CHAPTER XVI. OF TAKING ORAL EVIDENCE, AND OF THE EXAMINA- TION OF WITNESSES. Article 123. evidence to be upon oath, except in certain cases. All oral evidence given in any proceeding must be given upon oath, but if any person called as a witness refuses or is unwilling to be sworn from alleged conscientious motives, the judge before whom the evidence is to be taken may, upon being satisfied of the sincerity of such objection, per- mit such person, instead of being sworn, to make his or her solemn affirmation and declaration in the following words: — "I, A B, do solemnly, sincerely, and truly affirm and declare that the taking of any oath is accord- ing to my religious belief unlawful, and I do also solemnly, sincerely, and truly affirm and declare," etc. (a) (b)If any person called to give evidence in any Court of Justice, whether in a civil or criminal proceeding, objects to take an oath, or is objected to as incompetent to take such an oath, such per- son must, if the presiding judge is satisfied that (a) 17 & 18 Vict. e. 125, s. 20 (civil cases); 24 & 25 Vict, c. 66 (criminal cases). [3 Wigmore Ev„ § 1818.] (b) 32 & 33 Vict. c. 68, s. 4; 33 & 34 Vict. c. 49. I omit special provisions as to Quakers, Moravians, and Separatists, as the enactments mentioned above include all cases. The statutes are referred to in T. E. s. 1254; R. N. P. 175-176. 846 EXAMINATION OF WITNESSES. the taking of an oath would have no binding ef- fect on his conscience, make the following prom- ise and declaration — "I solemnly promise and declare that the evi- dence given by me to the Court shall be the truth, the whole truth, and nothing but the truth." If any person having made either of the said declarations wilfully and corruptly gives false evidence, he is liable to be punished as for per- jury. OATHS. By Whom Administered. California. An oath, to be binding, must be administered by an officer having legal authority to administer it. — People v. Cohen, 118 Cal. 74, 50 P. 20. Form of Oaths. California. Where it does not appear that the court was informed that a witness had a peculiar way of swearing more solemn and obligatory than the usual form, nor that the witness believed in any other than the Christian re- ligion, it was not error for the court to swear the witness in the usual form.— People v. Green, 99 Cal. 564, 34 P. 231. Oregon. A general oath that the evidence that the wit- ness would give would be the truth, the whole truth and nothing but the truth, is sufficient where the witness had written a contract in the German language and had seen the parties sign it and he was asked to read it and translate it to the jury. — Krewson v. Purdom, 13 Or. 563, 11 P. 281. Washington. The fact that in a criminal cause, the jury was sworn as follows: "You, and each of you, do solemnly swear that you will truly try Gin Pon and true deliverance make between the state and the prisoner at the bar. So help you God," under a statute which provides that the jury shall be sworn or affirmed to well and truly try the issues between the state and the prisoner at bar whom they EXAMINATION OF WITNESSES. 847 shall have in charge according to the evidence, is not such a variance as to warrant a reversal, when the jury had been charged by the court that their verdict was to be rendered upon the evidence produced in the case. — State v. Gin Pon, 16 Wash. 425, 47 P. 961. Where an oath has been administered to a Chinese wit- ness according to the custom and religion of his country, the subsequent administration to him of an oath in the form prescribed by statute, is not prejudicial error. — State v. Gin Pon, 16 Wash. 425, 47 P. 961. Article 124. fokm of oaths; hy whom tufa" may be administered. Oaths are binding which are administered in such form and with such ceremonies as the per- son sworn declares to be binding, (a) Every person now or hereafter having power by law or by consent of parties to hear, receive, and examine evidence, is empowered to admin- ister an oath to all such witnesses as are lawfully called before him.(b) Illustration. (a) [The plaintiff introduced one H, who, when placed on the stand, declined to be sworn or affirmed, on the ground that he had conscientious scruples against taking an oath or affirmation. Witness also said that he regarded the scriptural injunction, to "let your communications be yea, ye i. and nay, nay, and whatsoever more than this cometh of evil." as binding upon his conscience, and that to take the oath or affirmation, as prescribed by the statute, would be a violation of his conscience and religious convictions. The court then directed the clerk to repeat the following words to tlic witness: "You do solemnly state that the evidence you shall give in the case wherein S is plaintiff and M is (a) 1 & 2 Vict. c. 105. For the old law, see Omichund v. Barker, 1 S. L. C. 455; [3 Wigmore Ev., §§ 1817, 1818]. (b) 14 & 15 Vict. c. 99, 8. 16. 848 EXAMINATION OF WITNESSES. defendant, shall be the truth, the whole truth, and nothing but the truth." The witness signified his assent thereto by saying "I do." The testimony of the witness thereafter given was held to have been erroneously received, as being made only on his declaration to tell the truth, without either an oath or an affirmation being administered, as required by statute.] 1 OATHS OF WITNESSES. Idaho. It was not error to permit witnesses to be sworn in a body.— State v. Crea, 10 Ida. 88, 76 P. 1013; State v. Rooke, 10 Ida. 388, 79 P. 82. Texas. Where plaintiff was permitted to be sworn with other witnesses, but, being deaf, could not hear the oath as it was administered, such fact did not furnish grounds for a new trial, defendant necessarily knowing that wit- ness being questioned was deaf and not then objecting to her testimony. — Texas & P. Ry. Co. v. Reid, (Tex. Civ. App.), 74 S. W. 99. Washington. Oath administered to Chinese witnesses ac- cording to their custom, of each witness blowing out a candle, his oath being that if he did not tell the truth he would be snuffed out as was the candle. — State v. Gin Pon, 16 Wash. 425, 47 P. 961. Necessity of Administering. Arkansas. It was error to permit an unsworn witness to make a statement to the jury. — Walker v. Noll, 92 Ark. 148, 122 S. W. 488. Oregon. No person can testify as a witness unless sworn, without the consent of the parties. — State v. Tom, 8 Or. 177. Texas. Where the sole witness in a criminal prosecution was not sworn, it was error to permit him to be sworn and testify again after the trial had been had and argu- ments made. — Thompson v. State, 37 Tex. 121. Where the witness was too deaf to hear the oath ad- ministered to her, but was consciously sworn, it was suf- ficient, whether she actually heard the officer who admin- istered the oath or not. — Texas & P. Ry. Co. v. Reid, (Tex. Civ. App.), 74 S. W. 99. I - ![Mayberry v. Sivey, 18 Kan. 291.] EXAMINATION OF WITNESSES. 849 Washington. In this state there is no statute permitting a child to testify without first heing sworn, and it is tech- nical but not prejudicial error to permit the child to testify without being sworn. — Hodd v. City of Tacoma, 45 Wash. 436, 88 P. 842. Waiver of Irregularities. Texas. A party allowing a witness to give testimony without being sworn thereby waives any objection on that account.— Trammell & Co. v. Mount, 68 Tex. 210, 4 S. W. 377. If defendant knew that a witness was testifying without being sworn, it was his duty to interpose an objection to the evidence; otherwise he would be considered as waiv- ing the oath.— Ogden v. State, (Tex. Cr. R.), 58 S. W. 1018. To permit a witness to testify without objection at the time and knowing that she was too deaf to hear the oath administered, is to waive the irregularity. — Texas & P. Ry. Co. v. Reid, (Tex. Civ. App.), 74 S. W. 99. Article 125. how oral evidence may 15e taken. Oral evidence may be taken (a) (according to the law relating to civil and criminal proce- dure) — In open court upon a final or preliminary hear- in " ■ Or out of court for future use in court — (a) upon affidavit. (a) As to civil procedure, gee Order XXXVII. to Judica- ture Act of 1875; Wilson, pp. 264-267. As to criminal pi dure, see 11 »<• 12 Vict. c. I-', for preliminary procedure, and the rest of this chapter for final hearings. 850 EXAMINATION OF WITNESSES. (b) under a commission, (b) (c) before any officer of the Court or any other person or persons appointed for that purpose by the Court or a judge under the Judicature Act, 1875, Order XXXVII, 4. Oral evidence taken upon a preliminary hear- ing may, in the cases specified in 11 & 12 Vict. c. 42, s. 17, 30 & 31 Vict. c. 35, s. 6, and 17 & 18 Vict. c. 104, s. 270, be recorded in the form of a deposition, which deposition may be used as doc- umentary evidence of the matter stated therein in the cases and on the conditions specified in Chapter XVII. Oral evidence taken in open court must be taken according to the rules contained in this chapter relating to the examination of witnesses. (c)Oral evidence taken under a commission must be taken in the manner prescribed by the terms of the commission. (d)Oral evidence taken under (c) must be taken in the same manner as if it were taken in open court; but the examiner has no right to de- cide on the validity of objections taken to partic- (b) The law as to commissions to take evidence is as follows: The root of it is 13 Geo. III. c. 63. Section 40 of this Act provides for the issue of a commission to the Su- preme Court of Calcutta (which was first established by that Act) and the corresponding authorities at Madras and Bombay to take evidence in cases of charges of misdemeanor brought against Governors, &c, in India in the Court of Queen's Bench. S. 42 applies to parliamentary proceedings, and s. 44 to civil cases in India. These provisions have been extended to all the colonies by 1 Will. IV. c. 22, and so far as they relate to civil proceedings to the' world at large. 3 & 4 Vict. c. 105, gives a similar power to the Courts at Dublin. (c) T. E. s. 491. I EXAMINATION OF WITNESSES. 851 ular questions, but must record the questions, the fact that they were objected to, and the answers given. (e)Oral evidence given on affidavit must be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief and the grounds thereof may be admitted. The costs of every affidavit unnecessarily setting forth mat- ters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing them. (f)When a deposition, or the return to a com- mission, or an affidavit, or evidence taken before an examiner, is used in any court as evidence of the matter stated therein, the party against whom it is read may object to the reading of any thing therein contained on any ground on which he might have objected to its being stated by a wit- ness examined in open court, provided that no one is entitled to object to the reading of any an- swer to any question asked by his own represen- tative on the execution of a commission to take evidence, (g) fd) T. E. s. 1283. (e) Judicature Act, 1875, Order XXXVII., 4. (f) T. E. s. 491; Hutchinson v. Bernard, 2 Moo. & Rob. 1. (g) [The several provisions of this article refer to matters of practice, which are presumed to be generally similar in the different jurisdictions of this country. The particular differences would hardly find an appropriate place in this treatise. The matter of depositions is taken up in Articles 1 II. 142, 143.] 852 EXAMINATION OP WITNESSES. Article 126.* examination in chief, cross-examination, and re-examination. Witnesses examined in open court must be first examined in chief, then cross-examined, and then re-examined. Whenever any witness has been examined in chief, or has been intentionally sworn, or has made a promise and declaration as hereinbefore mentioned for the purpose of giving evidence, (a) the opposite party has a right to cross-examine him; but the opposite party is not entitled to cross-examine merely because a witness has been called to produce a document on a subpoena duces tecum, or in order to be identiefid. After the cross-examination is concluded, the party who called the witness has a right to re-examine him. The Court may in all cases permit a witness to be recalled either for further examination in chief or for further cross-examination, and if he does so, the parties have the right of further cross-ex- amination and further re-examination respec- tively, (b) (a) [This provision is peculiar to the English practice.] (b) [The judge may recall a witness at any stage of the proceedings, and examine or cross-examine at his discre- tion, Rex v. Watson, 6 C. & P. 653; may or may not, at his discretion, advise a witness of his right to refuse to answer, Com. v. Howe, 13 Gray (Mass.), 26; may limit the number of impeaching or supporting witnesses, Bunnell v. Butler, 23 Conn. 65; may, at a preliminary hearing to determine whether the conditions exist upon which evidence offered becomes admissible, refuse to permit cross-examination, *See Note "at end of Article 128. EXAMINATION OF WITNESSES. 853 If a witness dies, or becomes incapable of being further examined at any stage of his examination, the evidence given before he became incapable is good.(c) If in the course of a trial a witness who was supposed to be competent appears to be incompet- ent, his evidence may be withdrawn from the jury, and the case may be left to their decision inde- pendently of it. (d) EXAMINATION IN CHIEF. Colorado. It is an elementary rule, that where a question on direct examination is not introductory but embraces the very substance of the issue the court is trying and calling for an answer which, if accepted by the court, would be a complete determination of the cause, it is improper. — Combs v. Agricultural Ditch Co., 17 Colo. 146, 28 P. 966. The form of questions and method of examination of witnesses are largely within the discretion of the trial court, and unless there is an arbitrary abuse of such dis- cretion, the trial court's action in such matters will not be held to be reversible error. — Burson v. Bogart, 18 Colo. App. 449, 72 P. 605. Com. v. Morrell, 99 Mass. 542; and may limit the cross-ex- amination upon facts otherwise immaterial, for the purpose of testing the witness's bias, credibility, and judgment, Com. v. hymn, 113 Mass. 152. i'n.ss-cx:uiiination largely in dis- cretion of Court. Ellsworth v. Potter, 41 Vt. 685; Comstock v Smith, SO Mich. 338; re-examination as to new matter also in Court's discretion, Wickenkamp v. Wlckenkamp, 77 111. !»2. So of re-cross examination, Thornton v. Thornton, 39 Vt. 122. So of subsequent examinations. People v. Keith, 50 Cal. 137; Koenig v. Bauer, 57 Pa. St. 168.] (c) k. \ i l i ii. i Jebb, i'. C. i-'::. The Judges compared the case to that of a 'lying declaration, which is admitted though there tan be no cross-examination. (d) R. v. Whitehead, L. R. 1 C. C. R. 33. 854 EXAMINATION OF WITNESSES. Nebraska. Duplicate testimony by different witnesses upon a given point is unnecessary and improper and should be excluded, but its admission is error without prejudice. — Lamb v. Briggs, 22 Neb. 138, 34 N. W. 217. The practice of permitting two counsel on the same side to examine a witness is not commended, as a rule, but the privilege nevertheless rests solely within the discre- tion of the trial court.— Citizens' Bank v. Fromholz, 64 Neb. 284, 89 N. W. 775. North Dakota. Questions which, standing alone or hav- ing no bearing on the case at issue and therefore incom- petent, may be proper as preliminary questions. — State v. Kent (Pancoast), 5 N. D. 516, 67 N. W. 1052. CROSS-EXAMINATION. Arkansas. A defendant has no right to cross-examine a witness summoned by the state and sworn but not exam- ined. If he wants his testimony he must make him his own witness. — Austin v. State, 14 Ark. 555. California. The fact that plaintiff examined a witness in chief out of the proper order, though there was no objec- tion made, did not deprive defendant the privilege of cross-examination of witness. — Graham v. Larimer, 83 Cal. 173, 23 P. 286. Nevada. Every defendant in a criminal case is entitled to a full and perfect cross-examination of every witness who testifies against him. — State v. Larkin, 11 Nev. 314. QUESTIONS BY COURT. Colorado. That a court participated in the cross-exam- ination of a witness is not error, unless it can be shown that the complaining party was prejudiced thereby. — Baur v. Beall, 14 Colo. 383, 23 P. 345. Kansas. It is the purpose of a criminal trial to ascertain the truth of the matters under investigation, and it is part of the business of the judge to see that this is at- tended to. He is not a dumb and maskfaced moderator over the contest between counsel. He is a vital, integral factor in the discovery of the facts, and whenever in his judgment the attorneys are not drawing out the truth, he EXAMINATION OF WITNESSES. 855 is privileged to ask witnesses questions upon cross-exam- ination.— State v. Keehn, 85 Kan. 765, 118 P. 851. Oklahoma. It is not error for the judge to interrogate a witness during the progress of a case since it is his duty to elicit the evidence upon relevant and material points involved.— De Ford v. Painter, 3 Okl. 80, 41 P. 96. ORDER OF INTRODUCTION OF TESTIMONY. The order of the introduction of testimony rests largely within the sound discretion of the trial court: Arkansas: Davey v. State, 99 Ark. 547, 139 S. W. 629. California: Land v. Johnston, 156 Cal. 253, 104 P. 449 (plaintiff allowed to reopen case and introduce further testimony after the case had been submitted and before any decision had been rendered, defendant not being de- prived of any opportunity to reply to the additional evi- dence). Colorado: Newkirk v. Noble, 8 Colo. App. 276, 46 P. 15 (plaintiff allowed to introduce testimony after case was closed) ; Burnell (McCreery) v. Morrison, 46 Colo. 533, 105 P. 876 (introduction of letters of alleged agent before agency had been established); Koch v. City and County of Denver, 24 Colo. App. 406, 133 P. 1119 (eliciting from an officer of defendant on re-examination an admission of plaintiff, without laying any foundation). Kansas: Michner v. Ford, 78 Kan. 837, 98 P. 273 (appli- cation to introduce further testimony refused after the court takes the case under advisement). Montana: Noyes v. Clifford, 37 Mont. 138, 94 P. 842 (in- troduction of patent to mining claim and facts touching character of the discovery made and the steps taken to complete the location admitted before it had been shown that the vein or lode was known to exist at the date of application of patent). North Dakota: State v. Tolley, 23 N. D. 284, 136 N. W. 784 (cross-examination). Oregon: Crosby v. Portland Ry. Co., 53 Or. 496, 100 P. 300 (injury to plaintiff crossing defendant's track by com- ing in contact with sagging wire; though properly a part 856 EXAMINATION OF WITNESSES. of her case in chief, plaintiff was permitted in rebuttal to introduce her shoe in evidence, not only on account of its slightly burned appearance, but for the purpose of disclosing the nails therein, which the evidence discloses may have served as a conductor of an electrical current through their contact with the nails in the boards be- tween the rails where plaintiff stood at the time of receiv- ing the shock). Washington. Error cannot be predicated on the fact that the trial court enforces technical rules governing the ad- mission of evidence. — Anderson v. Globe Navigation Co., 57 Wash. 502, 107 P. 376. EXCLUSION OF WITNESSES. Arkansas. It is within the discretion of the court whether witnesses shall be excluded from the court room. — Vance v. State, 56 Ark. 402, 19 S. W. 1066. California. The circumstance of a witness in a criminal action having remained in court and heard the evidence of other witnesses, in disobedience of an order excluding him from the courtroom while other witnesses were under examination, is no ground for rejecting his testimony. The witness in such case may be punished for contempt in disobeying the order; but a party cannot, without fault on his part, be deprived, for such disobedience, of the testimony of the witness. — People v. Boscovitch, 20 Cal. 436. Kansas. It is not error in a criminal case for the court to receive the evidence of a witness, notwithstanding the fact that he has violated an order of the court to remain outside of the courtroom while other witnesses are tes- tifying. He may be punished for disobeying a rule of the court, but the state or the defendant should not be de- prived of his evidence. — State v. Falk, 46 Kan. 498, 26 P. 1023. Oregon. It is error to reject the testimony of a witness on the ground that he was present in the courtroom, in violation of an order of the court excluding the witnesses during the trial, unless it appears that the party calling him was in complicity with him. The witness, however, EXAMINATION OF WITNESSES. 857 may be punished for contempt for violation of such order. —Hubbard v. Hubbard, 7 Or. 42. Where two were sued upon a note, and both expected to testify in the suit, it was error for the court to include one of them in an order for the exclusion of all witnesses in the case.— Schneider v. Haas, 14 Or. 174, 12 P. 236. RECALLING WITNESS. California. Whether a witness may be recalled and re- examined as to matters about which he has already been examined is one left, by statute, to the sound discretion of the court.— Rea v. Wood, 105 Cal. 314, 38 P. 899. Article 127. to what matters ( koss-kxa.m in ation and bbs-examination must be directed. The examination and cross-examination must relate to facts in issue or relevant or deemed to be relevant thereto, but the cross-examination need not be confined to the facts to which the witness testified on his examination in chief, (a) The re-examination must be directed to the ex- planation Of matters referred to in cross-examina- tion ; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that mat- ter, (b) CROSS-EXAMINATION. Scope of Examination. Arkansas. In an action for injuries at a crossing, where a witness testified that the bell of the engine was rung all the while that the train was moving towards the cross- (a) L- Wigmore Ev., S 1362 et seq.] (b) [3 Wigmore Ev., §§ 1896, 1898.] 858 EXAMINATION OF WITNESSES. ing, it was competent to cross-examine him in detail about who was in the engine and what was being done. —St. Louis, I. M. & S. Ry. Co. v. Fitzhugh, 121 Ark. 633, 180 S. W. 490. Upon a prosecution for the unlawful sale of liquors, it was proper cross-examination for the prosecuting attorney to ask defendant if he had not been convicted before of selling whisky, in view of the fact that defendant denied that the beverage sold by him was intoxicating. — Seibert v. State, 121 Ark. 258, 180 S. W. 990. California. Where a defendant testified that he indorsed the note sued on after delivery and for accommodation, it is proper cross-examination to inquire whether he was not at about that time indorsing a great many notes for the same maker. — Pacific Portland Cement Co. v. Rein- ecke, 30 Cal. App. 501, 158 P. 1041. Idaho. It is a general rule that a defendant should not open his case by a cross-examination of plaintiff's wit- nesses, but the application of the rule must necessarily rest largely in the sound discretion of the trial court. — Hopkins v. Utah Northern Ry. Co., 2 Ida. 300, 13 P. 343. Kansas. There should be considerable latitude allowed in cross-examination. — State v. Patterson, 98 Kan. 197, 157 P. 437. Nebraska. In a prosecution for bastardy where the com- plaining witness had testified that defendant had begotten her with child while they were buggy riding, on a certain day, and defendant had been asked if he had had con- nection with witness at such time and place and had an- swered in the negative, and defendant's attorney had sought to limit the cross-examination to the single ques- tion whether or not defendant .had had connection with witness on that day and particular time and place, it was held that any question was proper on cross-examination in relation to the conduct of the defendant with witness on that day or about that time which would tend to show his guilt or exonerate him. — Planck v. Bishop, 26 Neb. 589, 42 N. W. 723. New Mexico. The general rule upon the scope of cross- examination, sometimes called the American rule, is that EXAMINATION OF WITNESSES. 859 the examination can only relate to the facts and circum- stances connected with the matters stated on direct ex- amination.— State v. Carter, 21 N. M. 166, 153 P. 271. To test the credibility of a witness, it is permissible, upon cross-examination, to investigate the situation of the witness with respect to the parties and to the subject of the litigation, his interest, motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he used those means, his powers of dis- cernment, memory, and description. — State v. Carter, 21 N. M. 166, 153 P. 271. Oregon. Where plaintiff was called and testified in chief concerning a loan, and discloses only so much of the transaction as was favorable to him and conceals the facts which were against him and leaves the inference that it was a legitimate and legal contract, it was within the limits of strict cross-examination for the defendant to bring out the remaining facts concerning the loan and the circumstances under which it was made. — Ah Doon v. Smith. 25 Or. 89, 34 P. 1093. South Dakota. Undoubtedly a cross-examination of a witness cannot go beyond the subject-matter of the exam- ination in chief, but it ought to be allowed a very free range within it. In order to do this, a witness may be sifted as to every fact touching the matters as to which he testifies, so that his temper, leanings, relations to the parties and the cause, his intelligence, the accuracy of his memory, his disposition to tell the truth, his means of knowledge, his general and particular acquaintance with the subject-matter may be tested. — Wendt v. Chi- cago, St. P. M. & O. Ry. Co., 4 S. D. 476, 57 N. W. 226. Texas. Upon a trial of defendant for the murder of his wife's paramour, where the wife was introduced as a witness and admitted her adulterous relations with de- ceased, her testimony on cross-examination should be limited strictly to matters brought out on direct examina- tion as to her relations with deceased. — Mitchell v. State, (Tex. Cr. R.), 179 S. W. 116. 860 EXAMINATION OF WITNESSES. Where the wife of defendant, on trial for manslaughter, was placed upon the stand by her husband and testified that deceased had had sexual intercourse with her while she was under his hypnotic influence, it was proper to ask witness on cross-examination not only what her husband had said when such information had been first communi- cated to him, but how he was affected by it, and other matter proper and material to the main testimony given, and for the further purpose of laying a predicate for her impeachment. — Tyrone v. State, (Tex. Cr. R.), 180 S. W. 125. Where defendant stated on direct examination that he was an Odd Fellow, it was proper cross-examination to ask him if he said he was an Odd Fellow, but improper to ask him when he had been expelled. — Ingrain v. State, (Tex. Cr. R.), 182 S. W. 290. Washington. Where, in an action for malicious prose- cution, plaintiff offers no evidence of reputation, cross- examination as to specific acts of wrongdoing is improper. — Finigan v. Sullivan, 65 Wash. 625, 118 P. 888. It was not error to sustain objection to a question on cross-examination which was argumentative and not based upon facts in evidence. — Marks v. City of Seattle, 88 Wash. 61, 152 P. 706. Collateral Inquiry. The extent of cross-examination upon collateral or im- material matters is largely within the discretion of the trial judge, and it was not error to limit the examination to the issues involved.— State v. Mox Mox, 28 Ida. 176, 152 P. 802; Just v. Idaho, etc., Co., 16 Ida. 639, 102 P. 381; State v. Reilly. 25 N. D. 339, 141 N. W. 720; Gatze- meyer v. Peterson, 68 Neb. 832, 94 N. W. 974. California. Cross-examination on collateral matters as to which there was no direct examination is not allowable. (Trial for murder of a Japanese. Question to widow of deceased whether there was not a Japanese arrested by reason of his being at deceased's place of business and disturbing the peace.)— People v. Ung Sing, 171 Cal. 83, 151 P. 1145. EXAMINATION OF WITNESSES. 861 Colorado. It is elementary, that if a party inquires of a witness as to immaterial matters, he must accept the an- swer and is not permitted to raise an issue therefrom by introducing evidence to contradict it. — Bulger v. People, 60 Colo. 165, 151 P. 937. Idaho. The extent of cross-examination upon collateral or immaterial matters as largely within the discretion of the trial judge, and it cannot be said that the court in this case committed error in limiting counsel for the ap- pellant in the cross-examination of respondent's witness, since such limitation was intended to confine the investi- gation to the issues involved. — State v. Mox Mox, 28 Ida. 176, 152 P. 802. Kansas. The extent to which a witness may be cross- examined on matters irrelevant and collateral to the main issue, with a view of impairing his credibility, depends upon the appearance and conduct of the witness, and all the circumstances of the case, and necessarily rests In the sound discretion of the trial court; and only where there has been a clear abuse of that discretion will error lie.— State v. Pfefferle, 36 Kan. 90, 12 P. 406. Montana. In an action upon a policy of insurance, in which there was no issue made by the pleadings as to the cause of death of the beneficiary, it was not proper cross-examination of plaintiff to have her identify papers containing proof of death of her husband, the beneficiary, for the purpose of showing the cause of his death from tuberculosis and that therefore his statements when the application was signed, that he was in good health were untrue. — Pelican v. Mutual Life Insurance Co., 44 Mont. 277, 119 P. 778. North Dakota. It was error to ask defendant on cross- examination whether he had not attempted to have plain- tiff arrested for sending him a dunning letter, without first giving the witness a chance to admit his bias and preju- dice against the plaintiff. — Paulson v. Reeds, 33 N. D. 141. 156 N. W. 1031. Texas. A witness may be cross-examined by asking if he is not under indictment for theft.— Carroll v. State, 32 Tex. Cr. R. 431, 24 S. W. 100. 862 EXAMINATION OF WITNESSES. Washington. A question asked a witness on cross-examin- ation, "Are you not the notorious Tuck Rhodes, who was tarred and feathered at Gray's Harbor and run out of the country?" is improper. — State v. Mann, 39 Wash. 144, 81 P. 561. Extent of Cross-Examination. Arkansas. Much latitude is allowed on cross-examina- tion of a witness who has given material testimony. — St. Louis, I. M. & S. Ry. Co. v. Fitzhugh, 121 Ark. 633, 180 S. W. 490. California. Where a fact denied by the defendant in his testimony covers the whole case or any branch of the case, the matter to be tested by cross-examination is the truth or falsity of that denial, just the same as if it had been a denial of some particular detail of fact. The peo- ple have the right on cross-examination to draw out any- thing which will tend to contradict the evidence of the defendant adduced on his direct examination or weaken or modify its effect. (In a prosecution for burning and destroying property insured, one R. testified to some con- versations with accused looking towards the transaction, which accused, taking the stand in his own defense, de- nied. The people were permitted on cross-examination not only to ask as to such preparations and conversations, but also as to other statements made at other times to R.) —People v. Turco, 29 Cal. App. 608, 156 P. 1001. Extraneous Matters and Affirmative Defenses. The rule is well settled that where a witness is allowed to be cross-examined on matters extraneous to those brought out on direct examination, he is regarded as the witness of the party examining him and is so far concluded by it as to prevent his contradiction. If he wishes to ex- amine the witness as to such extraneous matters he must do so by making the witness his own and question him as such in the subsequent progress of the case. — Tourte- lottp v. Brown, 1 Colo. App. 408, 29 P. 130; Boggs v. Thompson, 13 Neb. 403, 14 N. W. 393; Hurlbut v. Hall, 39 Neb. 889, 58 N. W. 538. EXAMINATION OF WITNESSES. 863 Montana. In an action for negligence of master, plaintiff's failure to complain as to the dangerous character of the work is, if material, a matter of defense, and not a proper subject of cross-examination. — Wallace v. Chicago, M. & P. S. Ry. Co., 52 Mont. 345, 157 P. 955. Nebraska. If a party, in cross-examination of witness questions him as to matters not brought out on examina- tion in chief, he thereby makes the witness his own, and in this particular cannot cross-examine him. — Clough v. State, 7 Neb. 320. New Mexico. When a party, on cross-examination of a witness, seeks to draw out new matter not inquired of on examination in chief, he makes the witness his own for that purpose, and the opposite party may insist upon cross-examining the witness as to such new matter. — State v. McKnight, 21 N. M. 14, 152 P. 76. South Dakota. No rule is better settled than that a de- fendant cannot, on cross-examination, introduce his own affirmative defense unless the witness has in his direct examination been interrogated as to matters concerning which he is cross-examined. — First Nat. Bank v. Enge- bretson, 28 S. D. 185, 132 N. W. 786; First Nat. Bank v. Smith, 8 S. D. 101, 65 N. W. 439. A party who has not opened his own case will not be allowed to introduce it to the jury by cross-examining wit- nesses of the adverse party, though, after opening it, he may cross-examine them for that purpose. But the rule is wholly different when all that the defendant, in cross-ex- amination, wishes to disprove, by plaintiff's witness, is the very case that witness has made. — Wendt v. Chicago, St. P. M. & O. Ry. Co., 4 S. D. 476, 57 N. W. 226. Discretion of Court. Arkansas. Where an exhaustive cross-examination of a prosecuting witness has been permitted fully sufficient to test her credibility and to show her interest in the prose- cution and the motive which prompted her to give her testimony, the extent of the cross-examination was with- in the discretion of the court. — Dawson v. State, 121 Ark. 211. 180 S. W. 761. 864 EXAMINATION OF WITNESSES. California. Where a question has been repeatedly an- swered by a witness on further cross-examination, it is not an abuse of discretion for the court to stop further examination to elicit the same reply. — People v. Lim Foon, 29 Cal. App. 270, 155 P. 477. Further Cross-Examination. New Mexico. Whether questions upon further cross-ex- amination are to be permitted of facts brought out on di- rect examination, is a matter within the discretion of the court.— State v. Carter, 21 N. M. 166, 153 P. 271. Washington. It was not error to sustain an objection to a question upon further cross-examination which had al- ready been covered by witness on prior cross-examination. —Marks v. City of Seattle, 88 Wash. 61, 152 P. 706. Cross-Examination on New Matters Introduced on Cross- Examination By Adverse Party. New Mexico. Where a party on cross-examination of a witness seeks to draw out new matter not inquired of on the examination in chief, he makes the witness his own for that purpose, and the opposite party may insist upon a cross-examination. (Homicide, defense being rape on wife of absent husband, state contending illicit relations and disclosure to husband not made until wife found her- self in a condition of pregnancy, a witness for state tes- tifying to statement of wife that she had been taking drugs to relieve such condition. Cross-examination to show that wife was in such nervous state at time of al- leged statement that hypodermic injections had to be given by physician to quiet her so that she could not have made the statement. State had the right to show on redirect examination that such nervous condition was due to the use of drugs for the purpose indicated.) — State v. McKnight, 21 N. M. 14, 153 P. 76. RE-EXAMINATION. Nebraska. As a rule, re-examination of a witness should be limited to the points arising out of the cross-examina- tion, but its enforcement rests entirely in the discretion of the trial court.— Schlencker v. State, 9 Neb. 241, 1 N. W. 857. EXAMINATION OF WITNESSES. 865 North Dakota. Where new matter is brought out on cross-examination of a witness, the adverse party is en- titled to re-examine the witness regarding such new mat- ter.— Erickson v. Wiper, 33 N. D. 193, 157 N. W. 592. Oregon. It was proper to permit a witness on redirect examination to give testimony which might refute any inference which may have been created in the minds of the jury by a question asked on cross-examination. — Willis v. Horticultural Fire Relief, 77 Or. 621, 152 P. 259. Article 128. leading questions. Questions suggesting the answer which the per- son putting the question wishes or expects to re- ceive, or suggesting disputed facts as to which the witness is to testify, must not, if objected to by the adverse party, be asked in an examination in chief, or a re-examination, except with the per- mission of the Court, but such questions may be asked in cross-examination, (a) LEADING QUESTIONS. In General. California. When a part of a conversation is given on direct examination or upon cross-examination, the oppo- sing side may bring out all of the conversation which may be material to the issues involved, and if the memory of the witness, relating to the conversation is shown to be deficient, leading questions may be asked her for the purpose of refreshing her memory. — People v. Converse, 28 Cal. App. 687, 153 P. 734. Idaho. Under proper circumstances and conditions, lead- ing questions are permissible: questions interrogatory in character; questions to a hostile witness; and in cases (a) [1 Wigmore Ev„ §§ 770-773; 2 Id., § 915.] 866 EXAMINATION OF WITNESSES. where it is shown that the witness does not comprehend the import of the questions propounded, or the witness is embarrassed. — McLean v. City of Lewiston, 8 Ida. 472, 69 P. 478. Kansas. Where a cause is tried to the court, the fact that a question leading in form is asked a witness, was not prejudicial error where it was apparent that the ques- tion did not mislead the court or prejudice the objecting party's case. — Fullenwider v. Ewing, 30 Kan. 15, 1 P. 300. Nevada. Where a witness is unable to understand other- wise, it is discretionary for the court to allow leading questions to be put to the witness on direct examination. —State v. Williams. 31 Nev. 360, 102 P. 974. Oklahoma. That the ends of justice be best served, the trial judge may interrogate a witness in any form and to any extent he may deem proper; so where, from the nat- ure of the case, the mind of the witness cannot be directed to the subject of the inquiry without a particular specifi- cation of it, leading questions may be asked him. — Ellison v. Beannabia, 4 Old. 347, 46 P. 477. Where a question is objectionable as being leading and suggestive, an objection to it will be sustained.- — Mulkey v. State, 5 Okl. Cr. 75, 113 P. 532. Texas. It is well settled that it is permissible to ask wit- nesses leading questions, when an omission in their testi- mony is evidently caused by want of recollection which a suggestion may assist. — Bennett v. State, (Tex. Cr. R.), 181 S. W. 197. What Is Leading Question? Arizona. A question to a witness, "Did Mr. H. deny that he agreed to give Mr. G.'s business his entire attention," is leading and therefore objectionable. — Green v. Here- ford. 12 Ariz. 85, 95 P. 105. California. In a prosecution for murder, it was not lead- ing a witness to ask him "Whom did you see watching around the house," referring to the house where deceased was killed —People v. DeWitt, 6S Cal. 584, 10 P. 212. Texas. A leading question is not determined by the form of the expression, such as, "Did or did not," which intro- EXAMINATION OF WITNESSES. 867 duces it. but whether it is so formed as to suggest to the witness the answer desired. — Tinsley v. Carey, 26 Tex. 350. Sundry Instances. Arkansas. To bring a witness to material points he may be lead to that length and the acknowledged facts in the case may be recapitulated to him. — Clark v. Moss, 11 Ark. 736: Texas. In a prosecution for murder, where upon cross- examination defendant's witness testified that the killing occurred about a certain date, it was improper for de- fendant to ask witness on redirect examination if the killing occurred on another date, such question being leading in form and such as would inform the witness that the killing had taken place on the latter date. — Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623. Where, in an attempt to prove the reputation of de- ceased as being a quarrelsome and dangerous man, a wit- ness was asked, "if he was acquainted with the general reputation of the deceased for peace and quietude in the vicinity in which he lived," it was not proper to ask lead- ing questions as to the meaning of such words. — Miller v. State, 36 Tex. Cr. R. 47. 35 S. W. 391. On Direct Examination. Colorado. While it is the rule that the party calling a witness recommends him as worthy of credit and cannot therefore impeach or cross-examine or discredit him in any way, and must not ask him leading questions in his examination in chief, yet, where the party is taken by surprise at the conduct of his own witness. i f is in the discretion, often the duty, of the trial court to allow the party to put leading questions to him as the only means of preventing the witness from concealing the truth by unsatisfactory or evasive answers. And in extreme cases, where it is apparent that the witness is giving testimony contrary to the reasonable expectation of the party call- ing him. BUCh party should be allowed to cross-examine the witness for the purpMe of refreshing his recollection with the view of modifying his testimony or of revealing his real animus in the case.— Babcock v. People, 13 Colo. 515. 22 P. 817. 868 EXAMINATION OF WITNESSES. North Dakota. Same as to surprise by witness. — George v. Triplett, 5 N. D. 50, 63 N. W. 891. Texas. Upon a prosecution for rape, where prosecutrix was a reluctant and hostile witness for the state, it was proper for the district attorney to ask her leading ques- tions.— Carter v. State, (Tex. Cr. R.), 181 S. W. 473; Atkison v. State, (Tex. Cr. R.), 182 S. W. 1099. Wyoming. Upon a trial for murder, it was proper to ask a witness leading questions upon his direct examination where it appeared that he had given evidence before a coroner's jury different from the answers to questions propounded to him upon the trial. — Hollywood v. State, 19 Wyo. 493, 120 P. 471. Discretion of Court. When and under what circumstances a leading question in?.y be put, is a matter resting in the sound discretion of tho court, and not a matter which can be assigned for error.— Dinsmore v. State, 61 Neb. 418, 85 N. W. 445; Rio Grande Western Ry. Co. v. Utah Nursery Co., 25 Utah 187, 70 P. 859. California. The cross-examination of a witness on the trial of a cause, is a matter committed to the sound dis- cretion of the court, and, in the exercise of that discre- tion leading questions may be permitted or denied. — Peo- ple v. Clary, 72 Cal. 59, 13 P. 77. New Mexico. It is well established that a court may, in its discretion, permit leading questions, and that only an abuse of that discretion will warrant making it reversible error.— Territory v. Meredith, 14 N. M. 288, 91 P. 731. Oregon. The allowance of leading questions rests in the sound discretion of the trial court. — State v. Chee Gong, 17 Or. 635, 21 P. 882. Washington. Whether or not a question is leading, is within the sound discretion of the court. — Seattle Auto- mobile Co. v. Stimson, 66 Wash. 548, 120 P. 73. Texas. Where defendant, on trial for murder, placed wit- nesses on the stand to prove his reputation during the thirty years they had known him and their testimony was to the effect that he was a peaceable, law-abiding citizen, EXAMINATION OF WITNESSES. 869 it was not proper cross-examination to ask these witnesses if they had heard that defendant had killed a man in Geor- gia before he came to the state of Texas, since such tes- timony related to circumstances too remote to affect his reputation.— Taylor v. State, (Tex. Cr. R.), 179 S. W. 113. Wyoming. Much latitude must be allowed the trial judge in permitting the cross-examination of witnesses by ques- tions objected to as leading in form, and the allowance of such questions is not generally to be considered as ground for reversal unless there appears to have been a clear abuse of discretion. — Harris v. State, 23 Wyo. 487, 153 P. 881. NOTE XLV. (To Articles 126, 127, 128.) These articles relate to matters almost too familiar to require authority, as no one can watch the proceedings of any Court of Justice without .seeing the rules laid down in them continually enforced. The subject is discussed at length in 2 Ph. Ev. pt. 2, chap, x., p. 456, &c; [1 Greenl. Ev„ l et seq.]; T. E. s. 125S, &c.; see, too, Best, s. 6:u. &cj. In respect to leading questions, it is said, "It is entirely a question for the presiding judge whether or not the exam- ination Is being conducted fairly." R. N. P. 182. Article 129.* 3TION8 i..\\yi-ti. in Cross-examination. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend — (1) To test his accuracy, veracity, or credi- bility; or (2) To shake his credit, by injuring his char- acter. Witnesses have been compelled to answer such questions, tht ugh the matter suggested was irre- •See Note al end ol arl 870 EXAMINATION OF WITNESSES. levant to the matter in issue, and though the an- swer was disgraceful to !he witness; but it is submitted that the Court has the right to exercise a discretion in such cases, and to refuse to com- pel such questions to be answered when the truth of the matter suggested would not in the opinion of the Court affect the credibility of the witness as to the matter to which he is required to testify. In the case provided for in article 120, a witness cannot be compelled to answer such a question. Illustrations. (a) The question was whether A committed perjury in swearing that he was R. T. B deposes that he made tattoo marks on the arm of R. T., which at the time of the trial were not, and never had been, on the arm of A. B may be asked and oompelled to answer the question whether, many years after the alleged tattooing, and many years before the occa- sion on which he was examined, he committed adultery with the wife of one of his friends. 1 (b) [On the prosecution of a female for assault with in- tent to murder, she took the stand, and on cross-examina- tion was asked whether she had not rented houses for pur- poses of prostitution at various places in Montana; whether she had not been "a kind of backer for the prostitution of female persons in Missoula and Hamilton"; whether she had not had a fight with a priest; whether she had not hugged arid kissed a juryman after she had been found not guilty of some misdemeanor upon one occasion; whether she had not had a fight with a French prostitute at some time; and whether, at another time, she had not "run a young gentle- man through a saloon"; and, finally, if her picture did not hang in the Rogue's Gallery in the city of New York. Held, that this was not proper cross-examination of what appeared by the record to have been the defendant's evi- dence in chief, and that it did not legitimately tend to im- pair the credibility of the defendant as a witness.] 2 *R. v. Orton. See summing up of Cockburn, C. J., vol. ii., p. 719, &c. 2 [State v. Gleim, 17 Mont. 17, 41 P. 998.] EXAMINATION OF WITNESSES. 871 QUESTIONS ON CROSS-EXAMINATION. Impeachment of Witness. See Article 133. In this state, the rule of veracity character as ex- pressed in the practice of impeachment by general bad reputation for truthfulness of the witness in the com- munity in which he lives, has been recognized and adopted, and convictions for crime of such kinds as may be rele- vant to veracity character, may be shown either by rec- ord of conviction or upon cross-examination, and the rule is the same in both civil and criminal cases. But. the rule does not go beyond these limits, and it is held that ar- rests on indictments or charges for crime are not com- petent even on cross-examination and their admission con- stitutes reversible error. — State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518; Richardson v. Gage, 28 S. D. 390, 133 N. W. 692. Arkansas. A witness cannot be impeached by showing that his reputation for unchastity or other particular im- moral habits, renders him unworthy of belief. The im- peaching testimony cannot go beyond his general repu- tation for morality.— Cline v. State, 51 Ark. 140, 10 S. W. 225. It was error to permit, in a prosecution for arson, the state to ask defendant if his brother had not been charged with killing and burning a woman, the brother not being charged with the commission of the crime under investi- gation nor a witness on the trial. — Counts v. State, 120 Ark. 462, 179 S. W. 662. California. If a witness, on cross-examination, is asked if he was not arrested for vagrancy, an objection that the record is the best evidence is not tenable; for the arrest does not necessarily imply that there was any record. — People v. Manning. 48 Cal. 335. A conviction of misdemeanor cannot be proved by cross- examination of a defendant who has taken the stand in his own behalf, but the record of conviction is indispens- able.— People v. Schenick. 65 Cal. 625, 4 P. 675. S72 EXAMINATION OF WITNESSES. On cross-examination of a witness for defendant, she may be impeached as being unworthy of belief, by being questioned as to wfce her she had not told a third person that it he woalcl no. prosecute a certain person for shoot- ing she would not testify for defendant in this case, though »uch prosecution had nothing to do with the pend- ing matter.— Barkly v. Copeland, 86 Cal. 483, 25 P. 1. A defendant charged with attempted burglary, after tes- tifying as to something that occurred on the night of the alleged burglary, may be required to answer on cross- examination if he had not previously been convicted of a felony.— People v. Crowley, 100 Cal. 478, 35 P. 84. A defendant who takes the stand, and testifies as a witness in his own behalf may be cross-examined upon matters affecting his character and credibility, the same as other witnesses; and the facts developed on the cross- examination, even though they incidentally tend to show that the defendant is guilty of other offenses than that for which he is on trial, become proper evidence in the case, to be considered by the jury so far as they tend to prove any issue in the case. (Homicide; defendant cross- examined with reference to his occupation, his past life, and particular quarrels and difficulties he had had, and with reference to his having carried and used dangerous weapons at other times.) — State v. Wells, 54 Kan. 161, 37 P. 1005. Kansas. A defendant who voluntarily becomes a witness in his own behalf is subject to the same rule as any other witness, and may be asked by the state, on cross-exam- ination, if he had not been convicted of larceny at the previous term of the same court in which he was being tried.— State v. Probasco, 46 Kan. 310, 26 P. 749. Oklahoma. A defendant who has availed himself of the privilege of becoming a witness, thereby changes his status from defendant to witness and he may be cross- examined within the usual boundaries and thus be dis- credited and impeached. — Richards v. State, (Okl. Cr.), 154 P. 72; Kirk v. State, 11 Okl. Cr. 382, 146 P. 914; Bux- ton v. State, 11 Okl. Cr. 85, 143 P. 58. EXAMINATION OF WITNESSES. 873 Oregon. On cross-examination defendant may be asked to impeach his credit, if he had not been convicted for felony.— State v. Bacon, 13 Or. 143, 9 P. 393. Texas. A witness may be compelled to answer a question degrading him, collateral to the main issue, but relevant to his credit. (Whether he was then not under indictment for theft.)— Carroll v. State, 32 Tex. Cr. R. 431, 24 S. W. 100. Where defendant takes the stand in his own behalf, he may be asked whether he has been indicted, in order to impeach his credibility. — Sexton v. State, 33 Tex. Cr. R. 416, 26 S. W. 833. A car inspector testifying that he invaribly inspected a car before it left may be cross-examined as to particular failures to do so. — Cunningham v. Austin & N. W. R. Co., 88 Tex. 534, 31 S. W. 629. On cross-examination, for the purpose of impeaching a witness, it is permissible to ask her if she had hereto- fore been charged with swindling. — Arnold v. State, (Tex. Cr. R.), 179 S. W. 1183. A witness in a civil action cannot be impeached by re- quiring him to testify to discreditable acts on his part having no material bearing on the issues involved. — Tur- ner v. McKinney, (Tex. Civ. App.), 182 S. W. 431. Washington. For the purpose of impeaching a witness it was not error to ask her if she was a prostitute, though witness could have refused to answer the question upon the ground that it would tend to incriminate her. — State v. Coella. 3 Wash. 99, 28 P. 28. An Impeaching question must correspond with the im- peaching evidence, and must not relate to a collateral matter first opened and denied on cross-examination. — State v. Stone. 66 Wash. 625, 120 P. 76; State v. Carpen- ter, 32 Wash. 254, 7:: !'. 357. Where a defendanl voluntarily takes the stand in his own behalf, he is subjeCl to all the rules of law relating lo cross -examination of other witnesses. — State v. Brooks. 89 Wash. 427. 154 P. 795; State v. Morden, ST Wash. 4G5. 151 P. 882. 874 EXAMINATION OP WITNESSES. Accuracy. New Mexico. Questions propounded to a witness on cross- examination as to what he has testified to at a prelim^ inary hearing in the cause, was not proper cross-exam- ination, and cannot be justified upon the theory of test- ing the accuracy and credibility of the witness. — State v. Carter, 21 N. M. 166, 153 P. 271. Texas. Where defendant, accused of manslaughter, put witnesses upon the stand to prove his good moral char- acter, it was proper, upon cross-examination, to ask such witnesses, if, in forming their opinion, they had heard that defendant was the father of an illegitimate child. — Duhig v. State, (Tex. Cr. R.), 180 S. W. 252. Credibility. Arkansas. Upon a prosecution for rape, defendant having taken the stand in his own behalf, was subject to all the rules of cross-examination and impeachment as any other witness, and therefore the state, to test his credibility, had the right in cross-examination to ask him if he had ever been convicted for a crime. — Younger v. State, 100 Ark. 321, 140 S. W. 139; Werner v. State, 44 Ark. 122; Turner v. State. 100 Ark. 199, 139 S. W. 1124. California. The fact that a witness answered "I don't remember," in answer to a question whether he had made an alleged inconsistent statement in a police court, did not render it improper to show by way of impeachment that he did in fact make such statement at the time men- tioned.— Ehat v. Scheidt. 17 Cal. App. 430, 120 P. 49. Idaho. The jury are the judges of the credibility of wit- nesses. — People v. Barnes, 2 Ida. 148, 9 P. 532. Nevada. It was proper to admit testimony of a conviction of a witness for the purpose of determining his credibil- ity. — Parker v. Hamilton, (Nev.), 154 P. 65. Oregon. Where a party calls a witness for the purpose of impeaching a witness of the opposing side by showing that his general reputation for truth is bad, and the other party on cross-examination calls out particular acts tend- ing to show that such witness is not worthy of belief, such facts can be considered by the jury as affecting the EXAMINATION OF WITNESSES. 875 credibility of the witness attempted to be impeached. — Steeples v. Newton, 7 Or. 110, 33 Am. St. R. 705. Washington. The credibility of a witness is for the jury. —State v. Schuman, 89 Wash. 9, 153 P. 1084; State v. Brooks, 89 Wash. 427, 154 P. 795. Bias and Prejudice. The fact that a witness admits the existence of ill- feeling or prejudice against a party, does not preclude an inquiry into the extent or intensity of such ill-feeling, nor the cross-examination of the witness as to the character and degree of such prejudices. — Stewart v. Kindel, 15 Colo. 539, 25 P. 990; State v. Collins, 33 Kan. 77, 5 P. 368. California. The state of mind of a witness as to bias or prejudice, his interests involved, his hostility or friendship towards the parties, are always proper matters of in- stigation, in order that the truth may prevail and false- ud find its proper level. — People v. Thomson, 92 Cal. 506, 28 P. 589. It was proper, upon a prosecution for rape, for the people to show that a witness, who had attempted to dis- credit the complaining witness, had told certain persons that he knew the defendant was guilty, but he was not "fool enough to swear to it in court," such statements going to the witness' bias. — People v. Converse, 28 Cal. App. 687, 153 P. 734. Idaho. It is proper upon cross-examination to show the bias and interest of the witness as a matter affecting his credibility. — Idaho-Western Ry. Co. v. Columbia Confer- ence, etc., 20 Ida. 568, 119 P. 60. Kansas. Questions on cross-examination put for the pur- pose of showing the prejudice of a witness against a party are permissible. — Clark v. Phelps, 35 Kan. 43, 10 P. 107. South Dakota. Personal ill-will on the part of the wit- ness toward a party to an action, is evidence of bias which may affect credibility, and the right to elicit the fact on cross-examination cannot be denied.— Richardson v. Gage, 28 S. D. 390, 133 N. W. 692. 876 EXAMINATION OF WITNESSES. Character of Witness. Arkansas. Upon a prosecution for rape, where defendant did not offer in evidence his good character, the state had no right by way of contradiction to show his bad character. —Younger v. State, 100 Ark. 321, 140 S. W. 139. NOTE XLVI. (To Article 129.) This article states a practice which is now common, and which never was more strikingly illustrated than in the case referred to in the illustration. But the practice which it represents is modern; and I submit that it requires the qual- ification suggested in the text. I shall not believe, unless and until it is so decided upon solemn argument, that by the law of England a person who is called to prove a minor fact, not really disputed, in a case of little importance, thereby exposes himself to having every transaction of his past life, however private, inquired into by persons who may wish to serve the basest purposes of fraud or revenge by doing so. Suppose, for instance, a medical man was called to prove the fact that a slight wound had been inflicted, and been attended to by him, would it be lawful, under pretense of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs, extending over many years, and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be involved? If this is the law, it should be altered. The following section of the Indian Evidence Act (1 of 1872) may perhaps be deserving of con- sideration. After authorizing, in sec. 147, questions as to the credit of the witness, the Act proceeds as follows in sec. 148:— "If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising this dis- cretion, the Court shall have regard to the following con- siderations: — "(1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. "(2) Such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not af- EXAMINATION OF WITNESSES. 877 feet, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies. "(3) Such questions are improper if there is a great dis- proportion between the importance of the imputation made against the witness's character and the importance of his evidence." Article 129a. judge's discretion as to cross-examination to credit. The judge may in all cases disallow any ques- tions put in cross-examination of any party or other witness which may appear to him (i. e., the judge) to be vexatious and not relevant to any matter proper to be inquired into in the cause or matter, (a) DISCRETION OF COURT. California. It is the duty of the court to expedite busi- ness by curtailing cross-examination upon immaterial and irrelevant matters. (Witness for prosecution in murder case after being cross-examined as to how she fixed the date upon which she saw accused, and replying that it was because of a postal card which her husband received that day and which had been directed to a certain house of theirs occupied by tenants, was improperly asked ques- tions as to the occupation and ownership of the house.) —People v. Durrant. 116 Cal. 179, 48 P. 75. Kansas. The extent to which a witness may be cross- examined on matters irrelevant and collateral to the main issue, with a view of impairing his credibility, depends upon the appearance and conduct of the witness, and all the circumstances of the case, and necessarily rests in (a) Rules of Supreme Court, Order xxxvi.. Rule 38. I leave Article 129 as it originally stood, because this Order is, after all, only an exception to the rule. "Him" must refer to the judge, as it would otherwise refer to the "party or witness," which would be absurd. 878 EXAMINATION OF WITNESSES. the sound discretion of the trial court; and only where there has been a clear abuse of discretion will error lie. (Prosecution for selling liquor. A co-defendant testified for both and on cross-examination was asked if he was not an old saloon-keeper, and if he had not been tried and convicted in that court several times for the sale of liquor.)— State v. Pfefferle, 36 Kan. 90, 12 P. 406. Oregon. The trial court in the exercise of its discretion may exclude or allow questions to defendant's witness on cross-examination whether he and defendant had not at one time been arrested on a charge of robbery, in order to show the state of feeling and relations of defendant and his witness.— State v. Bacon, 13 Or. 143, 9 P. 393. Washington. It was not an abuse of discretion on the part of the court to refuse to recall a witness for further cross-examination in order to lay a foundation for her impeachment, where the questions proposed to be asked were in no sense connected with the main charge. — State v. Schuman, 89 Wash. 9, 153 P. 1084. Wyoming. The latitude of the cross-examination is largely within the discretion of the trial court and a ver- dict will not be disturbed on the ground that such discre- tion was abused, unless it is shown that the discretion has been flagrantly abused. — Boyer v. Bugher, 19 Wyo. 463, 120 P. 171. Article "130. exclusion of evidence to contradict answers to questions testing veracity. When a witness under cross-examination has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence can be given to contradict him except in the following cases : (a) (a) A. G. v. Hitchcock, 1 Ex. 91, 99-105. See, too, Palmer v. Trower, 8 Ex. 247. EXAMINATION OF WITNESSES. 879 (1) If a witness is asked whether he has been .1 i sly ein\ . any felonry or misdemean- or, and denies 6i d es n t admit it, or refuses to answer, evidence may be given of his previous conviction thereof, (b) (2) If a witness is asked any question tending t) show that he is not impartial, and answers it by denying the facts suggested, he may be con- tradicted, (c) Illustration. i;i) [A defendant accused of murder had examined a cer- tain witness in chief, and on cross-examination he was asked whether he did not make certain statements tending to show that he was friendly to the defendant and one Hubbard, a id of defendant, and that he would not tell anything that would hurt defendant. The witness denied having made the statements, and the person to whom he was alleged to have made them was called, and allowed, over the objection of defendant, to contradict the former witness, and to tes- tify to the statements made by him. The court held that it was competent to show that if the first witness had testified favorably to defendant in his examination in chief it was competent to show that he had mad.- statements out of court tending to show his friendly reeling towards the defendant, and that he had expressed an Intention of suppressing facts within his knowledge that would Injure the defendant's case.] 1 California. Where a witness for defendant has attempted to dissuade one of plaintiff's witnesses from attending the trial and denies upon cross-examination that he has done so, plaintiff is entitled to give evidence to contradict him, such evidence being addressed to his conduct at the pres- ent trial and affecting his credit in that particular; being a n exception to the general rule to the effect that where a witness on cross-examination denies collateral or ir- (b) 28 & 29 Vict. c. is, s. 6. (c) A. <;. \. Hitchcock, l Bx. 91, pp. 100, 105. •[People V. Murray, 85 Cal. 350, 24 P. 666.] 880 EXAMINATION OF WITNESSES. relevant matters, witnesses cannot be called to contra- dict him.— Lewis v. Steiger, 68 Cal. 200, 8 P. 884. Washington. No rule is better settled than the one that the cross-examining party is concluded by the answer which a witness makes to a question appertaining to col- lateral matter; to such answers no contradiction is al- lowed even for the purpose of impeaching the witness. — State v. Schuman, 89 Wash. 9, 153 P. 1084; State v. Car- penter, 32 Wash. 254, 73 P. 357. Article 131.* statements inconsistent with present testimony may be PROVED. Every witness under cross-examination in any proceeding, civil or criminal, may be asked wheth- er he has made any former statement relative to the subject-matter of the action and inconsistent with his present testimony, the circumstances of the supposed statement being referred to suffi- ciently to designate the particular occasion, and if he does not distinctly admit that he has made such a statement, proof may be given that he did in fact make it. The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that he is "adverse" (i. e. hostile) to the party by whom he was called and permits the question. It seems that the discretion of the judge can- not be reviewed afterwards, (a) (a) Hice v. Howard, 16 Q. B. D. 681. •See Note at end of article. ' EXAMINATION OF WITNESSES. 881 PROOF OF INCONSISTENT STATEMENTS. California. To impeach a witness upon the ground of in- consistent statements, the impeaching testimony must be plainly inconsistent with that already given. — People v. Burns, 16 Cal. App. 416, 118 P. 454; Estate of O'Connor, 118 Cal. 69, 50 P. 4; People v. Collum, 122 Cal. 186, 54 P. 589. Kansas. Where a defendant upon trial for murder of his sister, produced a witness who, with a view of showing the conscious innocence of the defendant, testified what his conduct and appearance were soon after the death of his sister, it was proper to inquire on cross-examina- tion, if the witness had not stated at the preliminary ex- amination that defendant impressed him at once as being guilty of the murder.— State v. Baldwin, 36 Kan. 1, 12 P. 318. Montana. Where it is permitted a party to contradict his own witness by other evidence, and to ask the witness whether he had made other statements, the state, in a criminal prosecution, may cross-examine its witnesses, where their testimony varies from what the county attor- ney had reason to believe it would be. — State v. Bloor, 20 Mont. 574, 52 P. 611. Nebraska. A party cannot, by drawing out on cross-ex- amination statements made by a witness which were ir- relevant and collateral, gain the right to contradict such testimony by showing inconsistent statements of the wit- ness at other times. — Owens v. Omaha & C. B. St. Ry. Co. 99 Neb. 364, 156 N. W. 661. New Mexico. A witness may be impeached not only by his contradictory or inconsistent statements, but also by proof that in a former action, under circumstances which if was his duty to state the whole truth, he omitted to state material and relevant facts which he now states. — State v. Perkins, 21 N. M. 135. 153 P. There are three sorts of evidence that may ho Intro- duced to impeach a witness: (it Evidence relating to bia character and directly tending to show that the wit- ness lacks truthfulness; (2) evidence showing that on former occasions, when purporting to fully narrate the 882 EXAMINATION OF WITNESSES. facts, he neglected to state material facts testified to on the present occasion; (3) evidence showing that his tes- timony on the present hearing materially varies from the acts done or statements made by him on other occasions. —State v. Perkins, 21 N. M. 135, 153 P. 258. Texas. A statement of facts made up by counsel in a former appeal cannot be used in evidence for the purpose of contradicting a witness in a subsequent trial. — Sinclair v. Stanley, G9 Tex. 718, 7 S. W. 511. Where a witness, upon being asked about a matter tes- tified to in another proceeding states that she cannot re- member, it can be shown, by way of contradiction or im- peachment, that she did so testify. — Taylor v. State, (Tex. Cr. R.), 180 S. W. 242. For the purpose of impeaching witnesses, their contra- dictory statements may be proved whether sworn to or not, and whether reduced to writing or not. — Taylor v. State, (Tex. Cr. R.), 180 S. W. 242. Washington. The stenographic notes of the official stenographer who took the testimony of a witness in a former trial, after showing that he had taken them at the time of the trial and that they were correct, and that aside from them he had no recollection what the witness had testified to, were admissible in evidence to impeach the witness on the present trial by showing his contra- dictory statements. — Klepsch v. Donald, 8 Wash. 162, 35 P. 621. Impeachment of Own Witness. California. A party calling a witness cannot impeach him for making contradictory statements. If the witness merely fails to testify as expected, such failure does not authorize the party calling him to prove that he had else- where made the desired statements. It is only where he has given damaging testimony that he is open to impeach- ment.— People v. Mitchell, 94 Cal. 550, 29 P. 1106. And the admission of such testimony "would enable the party to get the naked declarations of the witness before the jury as independent evidence." — Kennedy's Estate, In re, 104 Cal. 429, 38 P. 93. EXAMINATION OF WITNESSES. 883 Colorado. The party calling a witness cannot afterward assail his general character for truth or the testimony drawn from the witness by him. But, the rule does not extend to testimony drawn from the same witness by the opposite party, and where the state first called the wit- ness and afterwards the same witness was called on an- other point by defendant, the state was permitted to ask witness in relation to the matters drawn out from him by defendant if he had not given a different account of the matter at another time and place.— Jones v. People, 2 Colo. 351. Kansas. It is within the discretion of the trial court to say whether or not a party may impeach his own wit- ness.— St. Louis & S. F. Ry. Co. v. Weaver, 35 Kan. 412, 11 P. 408. While ordinarily a party may not impeach his own wit- nesses, nor offer evidence for that purpose, he is not con- clusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such wit- ness as to whether he had not previously made contrary statements, and may, in the discretion of the court, be permitted to show what such contrary statements were. - State v. Sorter, 52 Kan. 531, 34 P. 1036. In a criminal action the party may not impeach his own witness.— State v. Keefe, 54 Kan. 197, 38 P. 302. New Mexico. A witness may be asked on direct examina- tion if he did not make statements inconsistent with those testified to, when the party is taken by surprise, and the question is asked for the purpose of refreshing the wit- ness's recollection and inducing him to correct his testi- mony.— Territory v. Livingston, 13 N. M. 319, 84 P. 1021. North Dakota. Where a party calling a witness is sur- prised by his testimony, which not only fails to prove, but actually disproves, his case, he has a right to ask the witness whether he has not made a statement to the plaintiff conflicting with his testimony, and which, if true, would tend to prove the plaintiff's case. — George v. Trip- lets 5 N. D. 50, 63 N. W. 891. 884 EXAMINATION OF WITNESSES. Oklahoma. A party is not permitted to question the truth- fulness of his own witness. But witnesses frequently tes- tify to facts which do not warrant the conclusions which they place upon such facts, and under such circumstances it is the duty of the court, as a matter of law, to say what facts are established by the testimony.- — Wass v. Tennent- Stribbling Shoe Co., 3 Okl. 152, 41 P. 339. A party will not be permitted to impeach his own wit- ness by showing his general bad character for truth. — Sturgis v. State, 2 Okl. Cr. 362, 102 P. 57. Oregon. Sec. 838, Civil Code, which permits a party pro- ducing a witness to contradict him by other evidence and to show that he has made at other times statements in- consistent with his present testimony, does not allow a party to inquire about matters regarding which the wit- ness has not given any testimony, or testimony of a weak or unsatisfactory character, and then prove his statements made at another time in reference to such matters. The object of the section is to prevent a party from being prejudiced by evidence of his own witness. He may, of course, call a witness's attention to any statements he may have made at other times for the purpose of refreshing his memory, but he has no right to ask him about his having made statements at another time favorable to the party's side of the case which the witness had not testified to, nor to prove what those statements were. — Langford v. Jones, 18 Or. 307, 22 P. 1064. While, under some circumstances a party may contra- dict the testimony of his own witness, he cannot do so by statements contained in an involuntary confession made by him.— State v. Steeves, 29 Or. 85, 43 P. 947. Texas. One cannot impeach his own witness. By plac- ing his witness on the stand, the party calling him vouches for his truthfulness.— Taylor v. State, (Tex. Cr. R.), 179 S. W. 113. At common law, one cannot impeach his own witness, but our Code has so far modified the rule that a party may attack the testimony of his own witness when the facts stated by him are injurious to the party. — Taylor v. State, (Tex. Cr. R.), 179 S. W. 113. EXAMINATION OF WITNESSES. 885 One cannot call a witness knowing or being informed that he may not testify as to certain matters, and thereby lay predicates to impeach his own witness, and thus secure the admission of testimony otherwise inadmissible. — In- gram v. State, (Tex. Cr. R.), 182 S. W. 290. Washington. The impeachment of one's own witness should be extended only under the direction of the court. — Hackett v. Scott, 59 Wash. 390, 109 P. 1030. Laying Foundation. Where it is sought to impeach the evidence of a witness by showing that at other times, before and after his depo- sition was taken, the witness had made statements con- trary to those contained in the deposition, it was held that it was immaterial that the witness had made such statements after his deposition had been taken and at the time when it was too late to allow a proper founda- tion for its introduction to be laid while other statements were not known to counsel until after witness had been examined; that in all cases the proper foundation must first be laid in order that the witness could have the op- portunity of explaining or denying them. — Ryan v. People, 21 Colo. 119. 40 P. 775; Howe Mach. Co. v. Clark. 15 Kan. 492. Arkansas. Where, on the trial of a criminal case, the deposition of a witness who had since died was read as evidence against the accused, he may impeach such evi- dence by proof of previous contradictory statements made by the witness provided that the witness was interro- gated in the examining court concerning such contra- dictory statements, with the proper specifications of the time and place; and if the deposition fails to show that such foundation was laid for impeaching the witness, the committing magistrate may amend it to show the fact. —Griffith v. State. 37 Ark. 324. A witness may always be discredited by proving that he has made contradictory statements on a former occa- sion, provided he is first inquired of concerning such for- mer matters. — McCoy v. State, 46 Ark. 141. Before other evidence can be offered, of contradictory statements made by the witness at another time, he must 886 EXAMINATION OF WITNESSES. be questioned concerning the same, with the circumstances of time and persons present. — Jones v. State, 101 Ark. 439, 142 S. W. 838. California. Where a witness is sought to be impeached by proof of contradictory statements alleged to have been made by him, the precise matter of these contradictions and the time and place of the contradictory statements, must be brought to the knowledge of the witness on cross- examination. — Baker v. Joseph, 16 Cal. 173. A witness cannot be impeached by showing that he had made statements on a preliminary examination inconsist- ent with his statements on the trial, unless his former testimony, if reduced to writing, was first shown to him. And in the absence of any testimony to the contrary, it will be presumed that such testimony was in writing. — People v. Ching Hing Chang, 74 Cal. 389, 16 P. 201. It is a proper foundation for the impeachment of a wit- ness to ask him if he did not, in the presence of certain persons, in a trial in a police court, while giving his tes- timony, make the statements referred to and the witness answering that he remembered the questions to which counsel referred, that he remembered that the persons named were present and that he then gave testimony. — Ehat v. Scheidt, 17 Cal. App. 430, 120 P. 49; People v. Yee Foo, 4 Cal. App. 730, 89 P. 450. Colorado. That a witness has no recollection of a state- ment imputed to him as having been made out of court concerning matters in issue, does not prevent such state- ments from being proved. — Jones v. People, 2 Colo. 351. Where a witness sought to be impeached is both wit- ness and party, any statements he may have made out of court contradictory of his own material testimony was both competent as impeaching as well as substantive evi- dence against him, and it was not necessary that he should have first been examined as to such statements, since on rebuttal, called in regular order of trial, he was afforded full opportunity of testifying in regard to them. — Rose v. Otis, 18 Colo. 59, 31 P. 493. A witness cannot be impeached by proof that in some other action he has made statements inconsistent with EXAMINATION OF WITNESSES. 887 his testimony at the trial concerning matters not relevant to the issue, nor at all, without laying a proper founda- tion by first calling his attention to the alleged contra- dictory statements. — Mullen v. McKim, 22 Colo. 468, 45 P. 416. Nebraska. As a proper foundation for the impeachment of a witness for making contradictory statements prior to his present testimony, the witness may be asked if he did not, at a certain time and place, in the presence of cer- tain parties, make certain statements, as to facts within his knowledge, at variance with his testimony on the trial. — Pinschower v. Hanks, 18 Nev. 99, 1 P. 454. Oregon. Evidence, sought for the purpose of laying the ground for impeaching a witness must be relevant to the issues.— Goodall v. State, 1 Or. 333, 80 Am. Dec. 396. Proof of contradictory statements made by a witness cannot be given, unless a foundation has first been laid. — Krewson v. Purdom, 13 Or. 563, 11 P. 281. Washington. Where, for the purpose of impeaching a witness it was asked if he remembered having a conver- sation with "V" at a certain saloon "last July," it was held that the "time, place and circumstances," were suffi- ciently indicated to justify the admission of V's testimony as to such conversation. — State v. Walters, 7 Wash. 246, 34 P. 938. It is elementary that admissions are not admissible to impeach a witness whose attention has never been called to the time, place, or circumstances of the impeaching testimony.— State v. Schuman, 89 Wash. 9, 153 P. 1084; State v. Stone. 66 Wash. 625, 120 P. 76. NOTE XLVII. (To Article 131.) The words of th<- two sections of it A is Vict c. 125, meant to be represented by this article are as follows: 22. A party producing a witness shall not hi- allowed to Impeach lii.s credit by general evidence of had character; but he may, in cast- the witness shall, in the opinion of the lodge, prove adverse, contradict him hy other evidence, or, by leave of the jun^e, prove that he has made at other times 888 EXAMINATION OF WITNESSES. a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circum- stances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. 23. If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be men- tioned to the witness, and he must be asked whether or not he has made such statement. The sections are obviously ill-arranged; but apart from this, s. 22 is so worded as to suggest a doubt whether a party to an action has a right to contradict a witness called by himself whose testimony is adverse to his interests. The words "he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence," suggest that he cannot do so unless the judge is of that opinion. This is not, and never was, the law. In Greenough v. Eccles, 5 C. B. n. s. p. 802, Williams, J., says: "The law was clear that you might not discredit your own witness by general evidence of bad character; but you might, neverthe- less, contradict him by other evidence relevant to the issue"; and he adds (p. 803): "It is impossible to suppose that the Legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own wit- ness by other evidence relevant to the issue — a right not only established by authority, but founded on the plainest good sense." Lord Chief Justice Cockburn said of the 22d section: "There has been a great blunder in the drawing of it, and on the part of those who adopted it." * * * "Perhaps the better course is to consider the second branch of the section as altogether superfluous and useless (p. 806)." On this au- thority I have omitted it. For many years before the Common-Law Procedure Act of 1854 it was held, in accordance with Queen Caroline's Case (2 Br. & Bing. 286-291), that a witness could not be cross-examined as to statements made in writing, unless the writing had been first proved. The effect of this rule in criminal cases was that a witness could not be cross-exam- ined as to what he had said before the magistrates without putting in his deposition, and this gave the prosecuting counsel the reply. Upon this subject rules of practice were issued by the judges in 1837, when the Prisoner's Counsel EXAMINATION OF WITNESSES. 889 Act came into operation. The rules are published in 7 C. & P. 676. They would appear to have been superseded by the 28 Vict. c. 18. Article 132. cross-examination as to previous statements in writing. A witness under cross-examination [or a wit- ness whom the judge under the provisions of arti- cle 131 has permitted to be examined by the party who called him as to previous statements incon- sistent with his present testimony] may be ques- tioned as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause, without such writing being shown to him [or being proved in the first instance] ; but if it is intended to contradict him by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of contradicting him. The judge may, at any time during the trial, require the doc- ument to be produced for his inspection, and may thereupon make such use of it for the purposes of the trial as he thinks fit. (a) INCONSISTENT STATEMENTS IN WRITING. Arkansas. A witness may be impeached by introducing in evidence his pleading in a former case, made under oath, which is in conflict with his testimony in the pres- ent case. — Texas & St. Louis Ry. Co. v. Donnelly, 46 Ark. 87. 7 & IS Vict. c. 125, s. 24; and 28 Vict. c. 18, s. 5. I think the words between brackets represent the meaning of the sections, but In terms they apply only to witnesses under cross-examination — •'Witnesses may be cross-examined," &c. 890 EXAMINATION OF WITNESSES. Where, in an action to recover damages for killing stock, the plaintiff having testified that the animal killed was worth $75.00, it was error to refuse to permit the de- fendant to introduce in evidence, in order to contradict plaintiff, the assessment list of his property recently signed and verified by him, in which he returned the ani- mal for taxation as worth $5.00. — Fordyce v. Hardin, 54 Ark. 554, 16 S. W. 576. California. In a criminal action it was held proper to read in evidence an affidavit made by defendant in sup- port of his motion for a new trial in a civil action in which he was a party, where such affidavit tends to contradict his testimony in his examination in chief. — People v. Samon set, 97 Cal. 448, 32 P. 520. An unverified and unsigned complaint of a party and the contents were not shown to have been known to him, is not admissible against him in another action to contradict his present testimony. — Solari v. Snow, 101 Cal. 387, 35 P. 1004. Colorado. In a criminal action an affidavit made by de- fendant to procure compulsory process for witnesses, which states where the defendant was at the time of the crime he is alleged to have committed, may be read in evidence against him to show that he was not at such place.— Torris v. People, 19 Colo. 438, 36 P. 153. Oklahoma. To contradict a witness by evidence given by him on a former trial, it is proper to allow the court stenographer who took such evidence to read the same to the jury from his stenographic notes without requiring that they be transcribed and certified, after a proper foundation has been laid and witness had answered that he did not remember. — Johnson v. Moore, (Okl.), 152 P. 1073. Laying Foundation. California. A witness may be impeached by evidence that he has made at other times statements inconsistent with his present testimony, but if such statements are in writ- ing, they must be shown to the witness before any ques- tions are put to him concerning them. — People v. Ching Hing Chang, 74 Cal. 389, 16 P. 201. EXAMINATION OF WITNESSES. 891 Upon the cross-examination of a witness as to state- ments made by him upon a former trial, he has the stat- utory right to have such previous statements presented to him and read, if in writing. — People v. Lee Chuck, 78 Cal. 317, 20 P. 719. Where it is attempted to impeach the testimony of a witness by showing that he had made contradictory state- ments in a writing, a proper foundation must first be made for such impeaching evidence. — Froeming v. Stockton Elec. R. Co., 171 Cal. 401, 153 P. 712. Colorado. Where two depositions of a witness were taken by the defendant, and on the trial he read the last one in evidence, and in rebuttal plaintiff offered the former one in evidence for the purpose of showing that the witness had made contradictory statements therein from those made by him in the latter, it was not necessary for the purpose of their introduction as impeaching evidence to lay the ordinary foundation therefor by interrogating wit- ness as to whether he made such statements and the time and place of making them. — Thompson v. Gregor, 11 Colo. 531, 19 P. 461. Montana. In the absence of a deposition from the court- room and unaccounted for, a witness cannot be cross- examined as to its contents. — Melzner v. Chicago, M. & St. P. Ry. Co., 51 Mont. 487, 153 P. 1019. New Mexico. For the purpose of impeaching the testi- mony of a witness given on a former trial, defendant of- fered to read to the jury the record of the testimony of the witness in such trial; but it was held not error to re- fuse to admit this testimony, no foundation for its intro- duction having been laid, either by showing the writing to the witness or reading it to him at the time he was interrogated.— United States v. Fuller, 5 N. M. 80, 20 P. 175. Oregon. A witness cannot be interrogated concerning oral statements made by him for the purpose of being written down, and which were reduced to writing, with- out first showing the writing to witness. —State v. Steeves, 29 Or. 85, 43 P. 947. 892 EXAMINATION OF WITNESSES. Texas. A letter written by a witness cannot be used to impeach him for previous contradictory statements made by him unless his attention is first directed to it. — Burle- son v. Collins, (Tex. Civ. App.), 28 S. W. 898. Article 133. impeaching credit of witness. The credit of any witness may be impeached by the adverse party, by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit upon his oath. Such persons may not upon their ex- amination in chief give reasons for their belief, but they may be asked their reasons in cross-ex- amination, and their answers cannot be contra- dicted, (a) No such evidence may be given by the party by whom any witness is called, (b) but, when such evidence is given by the adverse party, the party who called the witness may give evidence in reply to show that the witness is worthy of credit, (c) IMPEACHMENT OF WITNESSES. Oregon. In this state it is provided by statute that a wit- ness may be impeached by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him un- worthy of belief, but not by evidence of particular wrong- ful acts; hence a party who is a witness in her own be- half cannot be impeached by a letter written by her to another person containing language which would indicate that she was unchaste.— Leverich v. Frank, 6 Or. 212. (a) 2 Ph. Ev. 503-504; T. E. ss. 1324-1325. (b) 17 & 18 Vict. c. 125, s. 2; and 28 Vict. c. 18, s. 3. (c) 2 Ph. Ev. 504. EXAMINATION OF WITNESSES. 893 A witness may be impeached by contradictory evidence, by evidence that his reputation for truth is bad, or that his moral character is such as to render him unworthy of belief, or by evidence that he has, at other times made statements inconsistent with his present testimony. — Krewson v. Purdom, 13 Or. 563, 11 P. 281. Texas. For the purpose of impeaching a witness the fol- lowing rules should govern: 1st. The inquiry must be restricted to the general character of the party sought to be impeached; 2nd. The impeaching witness must speak from general reputation and not from private opinions as . to whether the character of the impeached witness is good or bad for truth; or as to whether the general repu- tation of the impeached witness is such as to entitle him to credit on oath. — Griffin v. State, 26 Tex. App. 459, 8 A. S. R. 460. Impeachment of Accused as Witness. See Article 129. Where defendant takes the stand as a witness, he may be impeached like any other witness, and his character for veracity can be impeached, and in some jurisdictions his moral character, though his good character may not previously have been put in issue. — Paxton v. State, 108 Ark. 316, 157 S. W. 396; Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; Wilson v. State, 71 Tex. Cr. R. 426, 160 S. W. 967 (that one accused of larceny was a prostitute) : Arkansas. Where a defendant testifies himself he may be cross-examined as to whether or not he has been con- victed or confined in the penitentiary for the purpose of impeaching him as a witness by showing his general rep- utation.— Werner v. State, 44 Ark. 122; Smith v. State, 74 Ark. 397, 85 S. W. 1123; Ware v. State, 91 Ark. 555, 121 S. W. 927. When a defendant in a criminal case takes the stand as a witness, he is subject to cross-examination as other witnesses; his character for veracity may be impeached though his good character may not have been previously put in issue. — McCoy v. State, 46 Ark. 141. Where defendant took the stand in his own defense, he thereby made himself subject to impeachment as to char- 894 EXAMINATION OP WITNESSES. acter as any other witness. — Cook v. State, 109 Ark. 384, 160 S. W. 223. California. Where a witness may be impeached by proof of general bad reputation in the community where he lives for truth, honesty or integrity, counsel should form their question as to the reputation for the particular trait sought to be elicited, and not ask the question in the dis- junctive.— People v. Ryan, 108 Cal. 581, 41 P. 451. "The moment defendant submitted himself as a wit- ness, his character, as such witness, for truth, honesty and integrity was involved, and he became subject to the same rules for testing his credibility before the jury by impeachment or otherwise as any other witness." — People v. Hickman, 113 Cal. 80, 45 P. 175. Where the defendant takes the stand and testifies in his own behalf in an attempt to clear himself of the crime with which he is charged, the prosecution may, in rebut- tal, introduce witnesses to testify as to his bad reputation for truth, honesty and integrity in the vicinity in which he lives.— People v. Hickman, 113 Cal. 80, 45 P. 175; Peo- ple v. Beck, 58 Cal. 212. Defendant as a witness may be impeached by showing his bad reputation for truth. — People v. Walker, 140 Cal. 153, 73 P. 831. Where an accused takes the stand he is subject to the same tests for ascertaining the truth as any other wit- ness. (Question allowed: "How often have you been con- victed of a felony?") — People v. Moran, 25 Cal. App. 472, 144 P. 15?. Colorado. Where defendant in a criminal case is sworn as a witness and testifies on his own behalf, he occupies precisely the same position as any other witness. — Mc- Keone v. People, 6 Colo. 346. Montana. A party who does not offer himself as a wit- ness, is not subject to impeachment. — State v. Jones, 51 Mont. 390, 153 P. 282. Oklahoma. If a person charged With a crime takes the stand voluntarily and becomes a witness against his co- defendant, he may be impeached as any other witness for truth and veracity.— Frazee v. State, (Okl. Cr.), 152 P. 462. EXAMINATION OF WITNESSES. 895 Texas. When an accused takes the stand in his own be- half, he can be forced to testify that he has previously been convicted and sent to the penitentiary and served time therein, unless such conviction is too remote. Ac- cused required to state that he had been in the peniten- tiary twice before, it not appearing when, admissible.) — Keets v. State, (Tex. Cr. R.), 175 S. W. 149. Wyoming. Accused taking the stand as a witness is sub- ject to impeachment in like manner as any other witness. — Eads v. State. 17 Wyo. 490, 101 P. 946. Reputation For Truth and Veracity. Arkansas. The admission of testimony as to the reputa- tion of a witness for truth and veracity at some other time and at a different place from that of his residence at the time of testifying, is in the discretion of the court. —Snow v. Grace, 29 Ark. 131, 140. California. An inquiry into the character of a witness for the purpose of impeachment must be restricted to his character for truth and veracity. — People v. Jesus Yslas, 27 Cal. 630. Oklahoma. Where it is sought to impeach a witness by general reputation, the inquiry must be as to his general character or reputation for truth and veracity in the com- munity in which he resides. To impeach him on this in- quiry, the testimony must show that his general reputation for truth is bad.— Richards v. State, (Okl. Cr.), 154 P. 72; Kirk v. State, 11 Okl. Cr. 382, 145 P. 307; Sims v. State, 11 Okl. Cr. 382, 146 P. 914. When it is sought to impeach a witness by general rep- utation, the inquiry and the answer must be as to his general character or reputation for truth and veracity in the community in which he resides. — Kirk v. State, 11 Okl. Cr. 203, 145 P. 307. Texas. In the impeachment of a witness the inquiry should be confined to his general character for truth, and should not extend to general moral character. — Ayres v. Duprey, 27 Tex. 593, 86 Am. Dec. 657. 896 EXAMINATION OF WITNESSES. Moral Character. In some jurisdictions a witness may be impeached by evidence that his general reputation for truth and morality is bad.— Bruder v. State, 110 Ark. 402, 161 S. W. 1067; State v. Perkins, 21 N. M. 135, 153 P. 258 (by statute). Evidence of bad character for chastity is not permissible for the purpose of impeaching the testimony of a witness. —People v. Jesus Yslas, 27 Cal. 630; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550. Arkansas. A witness may be impeached by showing that impeaching witness knows his general character for morality in the community, and that it is bad. — Majors v. State, 29 Ark. 112. New Mexico. By statute, a witness may be impeached by general evidence of bad moral character, and there is no restriction to reputation for truth and veracity. — State v. Perkins, 21 N. M. 135, 153 P. 258. Oklahoma. The truthfulness of a witness cannot be im- peached by proof of general bad character for morality, or by proof of specific acts tending to show want of moral- ity.— Litchfield v. State, 8 Old. Cr. 164, 126 P. 707. A witness cannot be impeached by general bad character for morality, or by general reputation for virtue and chastity.— Kennedy v. Pawnee Trust Co., 34 Okl. 140, 126 P. 548. Oregon. The credibility of a witness may be impeached for immorality, but only by general reputation, and not by evidence of specific acts. — Redsecker v. Wade, 69 Or. 153, 138 P. 485. Testimony as to moral character of a witness is one of the statutory modes of impeaching a witness, including defendant.— State v. O'Donnell, 77 Or. 116, 149 P. 536. Texas. Bad moral character is admissible to impeach a witness.— Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308. The general reputation of a witness for chastity is in- admissible.— Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135. It is not permissible to impeach a witness for truth and veracity by showing that his or her reputation for chas- EXAMINATION OF WITNESSES. 897 tity is not good. (Attempt to prove by another witness bad reputation of witness for chastity.) — Hall v. State, 43 Tex. Cr. R. 479, 66 S. W. 783. Washington. The character of a witness for immorality may be inquired into either upon cross-examination or by a resort to general reputation. — State v. Jackson, 83 Wash. 514, 145 P. 470. In Washington, the following instruction is given as appropriate: "That the jury are the sole judges of the credibility of the witnesses, and the weight to be given to their testimony; and in passing upon the testimony of any witness the jury have a right to take into considera- tion the interest any such witness may have in the result of this trial, the manner of testifying, the former life or conduct, and the addiction to immoral habits of any such witness as given by herself (or otherwise shown), in de- termining the credibility of any such witness, and the weight to be given the testimony of such witness." — State v. Gaul, 88 Wash. 295, 152 P. 1029. That girls as witnesses were of immoral character may be shown to affect credibility. — State v. Wingard, 92 Wash. 219, 158 P. 725. Truth, Honesty and Integrity. California. For purposes of impeaching a witness the in- quiry is not confined to his reputation for truth and verac- ity, but may extend to his general reputation for truth, honesty and integrity.— Heath v. Scott, 65 Cal. 548, 4 P. 557; People v. Silva, 121 Cal. 668, 54 P. 146. Idaho. By statute, a witness may be impeached by evi- dence that his general reputation for truth, honesty or integrity is bad.— State v. Trego, 25 Ida. 625, 138 P. 1124. By statute a witness may be impeached by a party against whom he is called by proof that his general repu- tation for truth, honesty or integrity is bad. — Boeck v. Boeck, 29 Ida. 639, 161 P. 576. Oregon. By statute a witness may be impeached by show- ing that his general reputation for credibility is bad, or that his moral character is such as to render him unworthy of belief; but he cannot be impeached by showing that 898 EXAMINATION OF WITNESSES. his general reputation for integrity is bad.— Mcintosh r. McNair, 53 Or. 87, 99 P. 74. Texas. Whether witness had a general reputation a* a gambler inadmissible to impeach. — Mares v. State, 71 'JL*«*. Cr. R. 303, 158 S. w U30. Reputation As To Sundry Matters. Oklahoma. Where the purpose of testimony is to impeach a witness for want of truth and veracity, the inquiry and the answer must be as to his general character or repu- tation for truth and veracity in the community in which he resides, and testimony as to the general reputation of a defendant for being a bootlegger is incompetent to impeach the credibility of a defendant as a witness in his own behalf, or for any other purpose. — Kirk v. State, 11 Okl. Cr. 203, 145 P. 307; Upton v. State, (Okl. Cr.), 160 P. 1134. But it has been held that the fact may be drawn out on cross-examination. — Crawford v. Ferguson, 5 Okl. Cr. 377, 115 P. 278; Fowler v. State, 8 Okl. Cr. 130, 126 P. 831. Particular Facts. Arkansas. A witness cannot be impeached by particular acts of unchastity. — Pleasant v. State, 15 Ark. 624. California. Defendant cannot be asked whether he had been a doorkeeper of a gambling house. — People v. Hamb- lin, 68 Cal. 101, 8 P. 687. A witness cannot be impeached by showing him to be a person of no religious belief. — People v. Copsey, 71 Cal. 548, 12 P. 721. In a criminal case it was error, for the purpose of im- peaching the testimony of a witness, to show that she had improper relations with another witness while the two were in jail together. — People v. Sherman, (Cal.), 32 P. 879. It may not be shown that the wife of deceased and made a witness by the state, had been an inmate of a house of prostitution.— People v. Chin Hane, 108 Cal. 597, 41 P. 697. In a prosecution for rape under the age of consent, the fact that the prosecutrix actually consented cannot be EXAMINATION OF WITNESSES. 899 admitted to Impeach her credit as a witness. — People v. Harlan, 133 Cal. 16, 65 P. 9. Idaho. In this state it is provided that "in every case the credibility of the witness may be drawn in question by evidence affecting his character for truth, honesty and integrity." which is simply declaratory of the common law. But, for the purpose of impeaching the credit of witnesses, the examination must be confined to general reputation and is not permitted as to particular acts. — People v. Barnes, 2 Ida. 161, 9 P. 532. Defendant in a rape case cannot be impeached by evi- dence of an attempt to debauch a child a year 'before the crime in question. — State v. Anthony, 6 Ida. 383, 55 P. 884. Habitual use of morphine or opium may be shown to affect credit.— State v. Fong Loon, 29 Ida. 248, 158 P. 233. Texas. That a witness has harbored horse thieves is in- admissible to impeach. — McAfee v. State, 17 Tex. App. 135. Testimony that a witness has committed certain offenses is inadmissible.— Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814. In impeachment of a witness the evidence should be con- fined to his general reputation for truth and veracity, and it is not competent to introduce particular instances of untruthfulness. — Missouri, Kansas & T. Ry. Co. v. Adams, 42 Tex. Civ. App. 274, 114 S. W. 453. Evidence of acts of the prosecuting witness with others admissible not as a defense but going to the credibility of the witness.— Wade v. State, (Tex. Cr. R.), 144 S. W. 246. Proof that an accused or any other witness associated with lewd women or kept bad company is not admissible to impeach.— Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716. An impeaching witness cannot show that the prosecutor in a robbery case has been criminally intimate with a young woman.— Phillips v. State, (Tex. Cr. R.), 164 S. W. 1004. That a woman had been raped is not admissible to affect her credit— Carter v. State, 75 Tex. Cr. R. 110, 170 S. W. 739. 900 EXAMINATION OF WITNESSES. A witness in a civil action cannot be impeached by re- quiring him to testify to discreditable acts on his part having no material bearing on the issues involved in the case, or by the testimony of witnesses other than the one sought to be discredited. (Whether plaintiff, who testified for himself, had left North Carolina because he had been indicted or jumped a bail bond.) — Turner v. McKinney, (Tex. Civ. App.), 182 S. W. 431. Proof that any witness who testifies has committed any given crime is inadmissible, either by the witness himself or by others. (Violation of liquor law; state's main wit- ness having denied a question asked, whether he had not sold liquors to certain named persons, his answer is con- clusive.)— Hawthorne v. State, (Tex. Cr. R.), 190 S. W. 184. Cross-Examination As To Collateral Facts. Arkansas. Questions asked a witness need not be an- swered where they will subject him to disgrace or degrade him, unless the evidence is material to the case, or tends to impeach his credibility. — Cook v. State, 102 Ark. 363, 144 S. W. 221. Prosecutrix in a statutory rape case may be asked, for purposes of impeachment, if she has been intimate with other men.— King v. State, 106 Ark. 160, 152 S. W. 990. Defendant, taking the stand as a witness, may be asked if he did not trade wives with another man. — Leonard v. State, 106 Ark. 449, 153 S. W. 590. California. A witness cannot be impeached by evidence of particular wrongful acts, nor is it proper to question the witness as to such matters on cross-examination. (Question to witness as to how many gentlemen she had gone to lunch with at a certain place when her husband was not present.)— Sharon v. Sharon, 79 Cal. 633, 22 P. 26. That a witness for the state had been a prostitute is inadmissible to affect credit.— People v. Chin Hane, 108 Cal. 597, 41 P. 697. A witness cannot be compelled to admit that she had lived with her husband before marriage.— Pyle v. Piercy, 122 Cal. 383, 55 P. 141. EXAMINATION OF WITNESSES. 901 Kansas. For the purpose of judging the character and credit of a witness, he may be cross-examined as to spe- cific facts tending to disgrace or degrade him, although collateral to the main issue, and touching on matters of record. (Prosecution for receiving stolen goods; ques- tions as to having been under arrest and what he was n. rested for.) — State v. Greenburg, 59 Kan. 404, 53 P. 61. New Mexico. That defendant had been cohabiting for nine years with one to whom she was not married, is ad- missible on cross-examination as affecting her credibility. —Territory v. DeGutman, 8 N. M. 92, 42 P. 68. North Dakota. A defendant who takes the stand in his own defense occupies no better position than any other witness, and, within the limits of a sound judicial discre- tion, may be cross-examined as to specific collateral facts for the sole purpose of affecting his credibility. This is the rule as established by the decided preponderance of authority; but a different rule prevails in certain states, as in Oregon, California and Missouri, where statutes have restricted the right of cross-examination to matters drawn out in chief. (Question whether he had passed under dif- ferent names than his own, and had been in jail at dif- ferent times and places.) — Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003. For purposes of impeachment, a defendant who takes the stand may be cross-examined as to collateral crimes, even though the answer tends to degrade him. (Charge of maintaining nuisance; whether since his release from imprisonment under a former conviction and before his arrest in this case, he had been arrested charged with a similar offense, and whether or not he had resisted the officer who made the arrest.) — State v. Rozum, 8 N. D. 548, 80 N. W. 477. Oklahoma. Prosecuting witness in grand larceny cannot be asked about his married relations, or whether he had committed abortion.— Flohr v. Territory. 14 Okl. 477, 78 P. 565. A witness may be cross-examined as to whether he is a bootlegger— Crawford v. Ferguson, 5 Okl. Cr. 377, 115 P. 278; Fowler v. State, 8 Okl. Cr. 130, 126 P. 831. 902 EXAMINATION OF WITNESSES. Texas. The rule authorizing an inquiry on the cross-ex- amination of a witness, as to whether he has spent much of his time in jail, charged with criminal felonies or of- fenses involving moral turpitude, or has been convicted of such offenses, for the purpose of impeaching the credit of such witness, has long been the established rule in this state (in criminal cases). — Payne v. State, 40 Tex. Cr. R. 290, 50 S. W. 363. A witness may be asked. if she is a common prostitute, but her answer cannot be contradicted. — Hall v. State, 43 Tex. Cr. R. 479, 66 S. W. 783. In a prosecution for murder a witness for the prosecu- tion was asked if he had not as jury commissioner frau- dulently endeavored to procure a jury that would convict a certain person. His answer cannot be denied. — Lank- ster v. State, (Tex. Cr. R.), 72 S. W. 388. On cross-examination the state may show that witness is a prostitute. — Brittain v. State, 47 Tex. Cr. R. 597, 85 S. W. 278. The testimony of a witness on cross-examination that he was not a professional gambler is conclusive and cannot be contradicted. — Mares v. State, 71 Tex. Cr. R. 303, 158 S. W. 1130. The fact of commission of crime is inadmissible to im- peach a witness who had neither been indicted nor con- victed.— Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58. In a prosecution for the killing of his wife's paramour, accused should not be asked if he had not had trouble with another man about being intimate with his wife be- fore he married her; and where such question was put to defendant and answered in the negative it was error to show the fact by another witness. — Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716. Larceny from person. That accused was a prostitute can be drawn out of her on cross-examination, the same as from any other witness. — Wilson v. State, 71 Tex. Cr. R. 426, 160 S. W. 967. Utah. If a witness has been charged with a crime, or arrested or indicted for it, he may be asked about it on EXAMINATION OF WITNESSES. 903 cross-examination, and, when such facts are irrelevant to the matter in issue, the party putting the questions is bound by the answers of the witnesses. He cannot call other witnesses, and prove that the answers are false. — People v. Hite, 8 Utah 461, 33 P. 254. Washington. Rape. Prior acts of prosecutrix with third persons inadmissible to affect credit, either on cross-ex- amination or by testimony of other witnesses. — State v. Holcomb, 73 Wash. 652, 132 P. 416; State v. Gay, 82 Wash. 423. 144 P. 711. Where prosecuting witness was asked whether she used cocaine, or morphine, or any drugs, her answer cannot be disputed. — State v. Schuman, 89 Wash. 9, 153 P. 1084. Wyoming. Inquiry may be made as to specific instances of recent, but not remote, misconduct of a witness upon cross-examination, within proper limits, for the purpose of affecting his credibility. In such case his answers pre- clude further inquiry, and extrinsic evidence of such col- lateral matter is not permissible. — Eads v. State, 17 Wyo. 490, 101 P. 946. Charge of Crime, or Arrest. That a witness has been charged with crime or arrested is not admissible to impeach. California: People v. Hamblin, 68 Cal. 101, 8 P. 687 (de- fendant cross-examined as to whether he had been ar- rested for shooting at persons); People v. Silva, 121 Cal. 668, 54 P. 146 (question asked witness on cross-examina- tion if she was not confined in the county jail about eight months continuously, charged with cattle stealing). Oklahoma: Corliss v. State, (Okl. Cr.), 159 P. 1015 (main- taining a place where intoxicating liquors were kept and sold; question whether defendant had been arrested on a similar charge). South Dakota: Richardson v. Gage, 28 S. D. 390, 133 N. W. 692 (if defendant had not been arrested five years ago for cattle stealing, asked on cross-examination). Arkansas. Action on insurance policy. Cross-examination of plaintiff as to whether he had been charged before a 004 AMTNATION OF WITNESSES. grand with the crime of arson, improper. — Stanley v. Aetna Ins. Co.. 70 Ark. 107, 66 S. W. 432. Wyc;rin . Aleve charges or accusations may not be in- quire:! into of a witness on cross-examination, since they are consistent with innocence and may exist without moral delinquency. (Fact of arrest for shooting a man in a bawdy house, not admissible.) — Eads v. State, 17 Wyo. 490, 101 P. 946. Indictment, As Impeachment In Civil Cases. Arkansas. The fact that a man has been indicted is no ground to reject his testimony. — Kincaid v. Price, 82 Ark. 20, 100 S. W. 76. Texas. It is not competent to impeach a witness in a civil case by proof that he has been indicted for a felony or other crime, but the inquiry should be confined to evi- dence of general reputation for truthfulness. — Missouri, K. & T. Ry. Co. v. Creason, 101 Tex. 335, 107 S. W. 537; Abilene & S. Ry. Co. v. Burleson, (Tex. Civ. App.), 157 S. W. 177; Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., (Tex. Civ. App.), 167 S. W. 816 Indictment, As Impeachment, In Criminal Cases. Arkansas. The state cannot impeach the character of a witness, discredit him before a jury, or impair the weight of his testimony by evidence that he had been indicted for a felony.— Carr v. State, 43 Ark. 99. On trial for larceny it was error to ask defendant on cross-examination if he had not been three times indicted for hog stealing, though he answered that he had been acquitted each time. — Bates v. State, 60 Ark. 450, 30 S. W. 890. California. It is improper to ask of a witness whether he has been indicted.— People v. Warren, 134 Cal. 202, 66 P. 212. Oklahoma. It is improper to ask a witness if he had ever been indicted, arrested or imprisoned before conviction for any offense.— Porter v. State, 8 Old. Cr. 64, 126 P. 699. Texas. In Texas the fact that a witness, whether defend- ant taking the stand, or another, has been indicted for a fel- EXAMINATION OF WITNESSES. 905 ony or an offense involving moral turpitude, may be shown, to affect credibility.— Bolton v. State, (Tex. Cr. R.), 39 S. W. 672 (indictment for larceny 5 years previous); Clark v. State, 38 Tex. Cr. R. 30, 40 S. W. 992 (indictment for similar offense of assault with intent to commit rape) ; Bruce v. State, 39 Tex. Cr. R. 26, 44 S. W. 852 (that de- fendant was then under indictment for perjury) ; Crockett v. State. 40 Tex. Cr. R. 173, 49 S. W. 392 (violation of local option law; that defendant had been indicted for assault with intent to murder) ; Wilborn v. State, (Tex. Cr. R.), 64 S. W. 1058 (accused asked if she had not been previously indicted for a similar offense of assault with intent to murder); Powell v. State, (Tex. Cr. R.), 70 S. W. 218 (murder; cross-examination as to indictment for assault with intent to murder) ; Jones v. State, 44 Tex. Cr. R. 405, 71 S. W. 962 (same; cross-examination as to indictment for abducting a child) ; Bearden v. State, 44 Tex. Cr. R. 578, 73 S. W. 17 (same; cross-examination as to indictment for cattle stealing) ; Payne v. State, 40 Tex. Cr. R. 290, 50 S. W. 363 (accused may be asked if he had not been indicted for the burglary of another house than the one in question); Asbeck v. State, 70 Tex. Cr. R. 225, 156 S. W. 925 (a witness in a murder case may be asked if he was not then under indictment charged with seduction); Thompson v. State, 72 Tex. Cr. R. 6, 160 S. W. 685 (indictment for arson); Ross v. State, 72 Tex. Cr. R. 611, 163 S. W. 433 (other indictments against ac- cused taking stand as witness, charging him with selling liquor); Martoni v. State. (Tex. Cr. R.), 167 S. W. 349 (selling whiskey, defendant a witness; been indicted for various offenses, and indictments pending); 'Whit fill v. State, (Tex. Cr. R), 169 S. W. 681 (accused as witness; indictment pending charging him with burglary); Villa- real v. State. (Tex. Cr. R.), lSi' S. \V. 332 (cross-examina- tion of accused, that he was under Indictment for horse theft): Baker v. State, (Tex. Cr. IM. 187 S. W. 949 (ac- cused a witness; state ina\ -how that lie had been indicted for felony less than 7 years before; he may in turn show that he had been acquitted >. 906 EXAMINATION OF WITNESSES. Indictment for offenses not involving moral turpitude cannot be shown in impeachment of credibility. — Brittain v. State. 36 Tex. Cr. R. 406, 37 S. W. 758 (that defendant was under other indictments for assault or for carrying weapons) ; Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761 (that defendant had been twice fined for fighting); Fitzpatrick v. State, 37 Tex. Cr. R. 20, 38 S. W. 806 (arrest or conviction of simple assault and battery) ; Stewart v. State, (Tex. Cr. R.), 38 S. W. 1144 (violation of local option law; that he had been arrested in other cases for like offenses) ; Bain v. State, 38 Tex. Cr. R. 635, 44 S. W. 518 (carrying a pistol; charged with same offense); Marks v. State, (Tex. Cr. R.), 78 S. W. 512 (violation of local option law; indictment for similar offense); Hays v. State, 47 Tex. Cr. R. 149, 82 S. W. 511 (same); Webb v. State, 47 Tex. Cr. R. 305, 83 S. W. 394 (indictment for card playing). A witness may be impeached by showing indictment for felony, but the court should limit the proof of indictment to its legal effect of impeachment. — Webb v. State, 47 Tex. Cr. R. 305, 83 S. W. 394. The facts, brought out on cross-examination, that wit- ness had been indicted and convicted of horse theft nearly thirty years ago, and indicted but not convicted of murder the same year, are not admissible to impeach, as being too remote. — Gardner v. State, 55 Tex. Cr. R. 400, 117 S. W. 148. Where there has been no indictment, the fact that a complaint was filed is not admissible to impeach. — King v. State, (Tex. Cr. R.), 148 S. W. 324. A witness can only be impeached as to other offenses by showing that he has been legally charged with a felony or a misdemeanor imputing moral and legal turpitude. — Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716. It may be shown that a witness was indicted for felony, though sentence upon his subsequent conviction was sus- pended.— Bush v. State, (Tex. Cr. R.), 189 S. W. 158. A witness can be impeached by the adverse party by proving by the witness on cross-examination that within a EXAMINATION OF WITNESSES. 907 period not too remote he had been Indicted or convicted of a felony or misdemeanor imputing moral turpitude. — Hawthorne v. State, (Tex. Cr. R.), 190 S. W. 184. Conviction of Crime. The fact that a witness, whether the accused or other person, has been convicted of a crime, and served time therefor, may be shown, either by the witness himself, or by the record of conviction, in order to affect his credi- bility, provided that such conviction is not deemed to be too remote: Arkansas: Smith v. State, 74 Ark. 397, 85 S. W. 1123 (burglary; conviction of petty larceny); Seibert v. State, 121 Ark. 258, 180 S. W. 990 (selling liquor; that defendant had been convicted of selling liquor before, admissible on cross-examination) . California: People v. Warren, 134 Cal. 202, 66 P. 212 (by statute, brought out either by cross-examination or by record of judgment). Oklahoma: Busby v. State, 10 Okl. Cr. 343, 136 P. 598 (seventeen years before, admissible). Texas: Spiller v. State, 61 Tex. Cr. R. 555, 135 S. W. 549 (witness on cross-examination forced to admit he was sent to the penitentiary fifteen or twenty years ago for two years; too remote); Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50 (accused as witness; admission that he had been convicted of horse theft thirteen years before held too remote, he being a boy at the time) ; Turner v. State, 71 Tex. Cr. R. 477, 160 S. W. 357 (accused as wit- ness; conviction of crime eighteen years before, and served term of eighteen months, too remote) ; Waddle v. State, (Tex. Cr. R.), 165 S. W. 591 (conviction of witness for felony twenty-one years ago, too remote); Hamilton v. State, (Tex. Cr. R.), 168 S. W. 536 (conviction of wit- ness for felony three or four years ago, admissible). Violation of a city ordinance is not a crime so that a conviction thereof is admissible to impeach. — State v. Crawford, 58 Or. 116, 113 P. 440; Triphonoff v. Sweeney, 65 Or. 299, 130 P. 979; Redsecker v. Wade, 69 Or. 153, 138 P. 485; but conviction in a police court of assault, 908 EXAMINATION OP WITNESSES. punishable under a city ordinance as a misdemeanor, is admissible, as it is a crime. — Marshall v. Dunn, (Wash.), 160 P. 298. Nevada. In a prosecution for murder, where the defend- ant had offered himself as a witness in his own behalf, conviction of felonious crimes can be drawn out of him on cross-examination as going to his credibility. — State v. Lawrence, 28 Nev. 440, 82 P. 614. Oklahoma. By statute, a witness may be discredited by showing on cross-examination that he has been convicted of a criminal offense. — Kirk v. State, 11 Okl. Cr. 203, 145 P. 307. Texas. The conviction of a witness for selling liquor is inadmissible to impeach, it being not a felony or involving high moral turpitude. — Hightower v. State, 73 Tex. Cr. R. 25S. 165 S. W. 184. The fact of conviction is inadmissible, where the judg- ment of conviction was set aside, indictment quashed and case dismissed. — Bedford v. State, (Tex. Cr. R.), 170 S. W. 727. When an accused testifies in his own behalf he can be forced to testify that he has previously been convicted and sent to prison and served time therein, unless such conviction is so remote as to be inadmissible. — Keets v. State, (Tex. Cr. R.), 175 S. W. 149. A witness can be impeached by the adverse party by proving by the witness on cross-examination that within a period not too remote he had been indicted or convicted of a felony or misdemeanor imputing moral turpitude. — Hawthorne v. State, (Tex. Cr. R.), 190 S. W. 184. Washington. Witness may be asked if she had not been convicted of the crime of running a house of prostitution. —Gardner v. Spalt, 86 Wash. 146, 149 P. 647. Wyoming. Evidence of a crime, to be competent and rele- vant to discredit a witness, should at least tend to prove moral turpitude or a lack of veracity. (Conviction in a justice's court of carrying concealed weapons, not admis- sible.)— Eads v. State, 17 Wyo. 490, 101 P. 946. EXAMINATION OF WITNESSES. 909 General Reputation. California. It is error for the court to tell the impeach- ing witness that he could only testify to what he knew of the impeached witness's reputation of his own personal knowledge.— People v. Webster, 89 Cal. 572, 26 P. 1080. The opinion of a few policemen as to the character of a witness does not establish his reputation in the commun- ity.— People v. Markham, 64 Cal. 157, 30 P. 620. Colorado. General repute and not personal knowledge must be testified to by the impeaching witness. — Benesch v. Waggner, 12 Colo. 534, 21 P. 706. Kansas. The fact that the word "general" is omitted from the question as to reputation does not render the evidence incompetent.— Coates v. Sulau, 46 Kan. 341, 26 P. 720. Oregon. The regular mode of examining into the general reputation is to inquire of the witness first whether he knows the general reputation of the person in question among his neighbors, and if his answer is in the affirma- tive, then he may be asked what that reputation is. (Er- roneous to leave out the word "general.") — Page v. Finley, 8 Or. 45. Texas. If the impeaching witness understands, when asked if he knows the reputation of the witness whose credibility is being attacked, that "reputation" has refer- ence to his "general" reputation, — that is, what is gen- erally said of him in the community in which he lives — then the absence of the word "general" from the question will not render it so defective that the answer thereto will not be received. — St. Louis Southwestern Ry. Co. v. Gar- ber, 51 Tex. Civ. App. 70, 111 S. W. 227. No particular form of question is prescribed or need be adhered to in eliciting from the impeaching witness his knowledge of the general reputation of the witness sought to be impeached for truth and veracity. ("Are you ac- quainted with," or "Do you know the general reputation of," the witness sought to be impeached, held sufficient; so also, "Do you know his reputation, how is he generally regarded for truth and veracity where he lives?") — St. 910 EXAMINATION OF WITNESSES. Louis Southwestern Ry. Co. v. Garber, 51 Tex. Civ. App. 70, 111 S. W. 227. Utah. In impeaching credit the question must be con- fined to his "general" reputation for truth and veracity. — State v. Marks, 16 Utah 204, 51 P. 1089. Knowledge of Impeaching Witness. California. General reputation can only be testified to by a member of the community in which the witness resides. (Witness going into a community and making inquiries of twenty persons incompetent to impeach.) Tingley v. Times-Mirror, 151 Cal. 1, 89 P. 1097. The ultimate fact to be established is the witness's per- sonal character, and it is considered that the general opinion of his character held by persons who knew him is of probative value as evidence of his real character. Hence the witness to such reputation must at least be acquainted with the prevailing impression in the com- munity, as disclosed by actions, conduct, or conversations relating to the character in issue, although it is not nec- essary that the witness testifying should know that the majority of the community have that impression. — Peo- ple v. Cord, 157 Cal. 562, 108 P. 511. Colorado. A witness not residing in the same neighbor- hood as defendant, and who had only talked with two men that worked for him and a neighbor, is incompetent as an impeaching witness. — Vickers v. People, 31 Colo. 491, 73 P. 845. Kansas. Impeachment is an attack upon the present credibility of a witness; and an impeaching witness, who testifies that he knows the general reputation for truth and veracity will not be excluded from giving testimony as to that reputation because it appears that such knowledge has been obtained and is based solely upon matters transpiring since the commencement of the action. That fact affects the weight, and not the competency, of the impeaching testimony. — Fisher v. Conway, 21 Kan. 18, 3 Am. R. 419. EXAMINATION OF WITNESSES. 911 A witness on!y knowing the reputation of i ^.usecut- ing witness from several families with whom she had lived is not qualified to testify as to her general reputation. — State v. Evans, 90 Kan. 795, 136 P. 270. Texas. The testimony of an impeaching witness is in- admissible, where it appears to be based upon his individ- ual opinions and feelings, and not upon his knowledge of the impeached witness's reputation in the community in which he lived. — Ayres v. Duprey, 27 Tex. 593, 86 Am. Dec. 657. A witness may testify to the good reputation of another, although he may never have heard that repute questioned, but in order to testify to bad reputation, he must have heard such reputation called in question. — Tyler v. State, 46 Tex. Cr. R. 10, 79 S. W. 558. When the credibility of a witness is sought to be im- peached, the inquiry must be restricted to his general rep- utation for truth in the community where he lives or is best known, and the impeaching witness must speak from general reputation or report, and not from his own private or individual opinion. — St. Louis Southwestern Ry. Co. v. Garber, 51 Tex. Civ. App. 70, 111 S. W. 227. Before a person can testify to the general reputation of a witness he must answer that he knows his reputation in the respect inquired about. — Harper v. State, (Tex. Cr. R.). 170 S. W. 721. Washington. A witness obtaining knowledge of a person bj inquiring of forty or fifty people by special investiga- tion for a period of about a week is not qualified to testify as to the general reputation of such person. — State v. Miller, 72 Wash. 174, 130 P. 356. WHETHER IMPEACHED WITNESS WOULD BE BELIEVED UNDER OATH. In impeaching the credibility of a witness, the question asked, "From what you know of his truth and veracity, would you believe him under oath?" is incompetent, as calling for the opinion of the witnejw, based upon his personal knowledge, and not upon tto general reputation 912 EXAMINATION OP WITNESSES. of the witness sought to be impeached. — People v. Web- ster, 89 Cal. 572, 26 P. 1080; Benesch v. Waggner, 12 Colo. 534, 21 P. 706. Arkansas. After an impeaching witness has testified that he knows the general character of the other witness for morality in the community, and that it is bad, he may state that from his general character witness would not believe him on oath. — Majors v. State, 29 Ark. 112; Hudspeth v. State, 50 Ark. 534, 9 S. W. 1; Cline v. State, 51 Ark. 140, 10 S. W. 225. The impeaching witness should be interrogated as to his knowledge of the general character and reputation among his neighbors for truth and morality of the witness sought to be impeached, and from that knowledge, if suf- ficient to support an opinion, whether or not he would be- lieve the person on oath. — Cole v. State, 59 Ark. 50, 26 S. W. 377. California. A witness who is called to impeach another may answer that he would not believe such witness under oath. This has been the uniform practice in this state, and no injury has resulted therefrom. — Stevens v. Irwin, 12 Cal. 306; People v. Tyler, 35 Cal. 553; Wise v. Wake- field, 118 Cal. 107, 50 P. 310. Idaho. The question as to whether or not a witness can be asked whether from knowledge of the reputation of an- other witness he would believe him under oath, not de- cided.— State v. Bouchard, 27 Ida. 500, 149 P. 464. Kansas. It is competent to ask an impeaching witness who has testified that the general reputation of another witness for truth and veracity in the vicinity in which he lives is bad, whether from that general reputation he would give him full credit upon his oath in a court of justice.— State v. Johnson, 40 Kan. 266, 19 P. 749. Texas. An impeaching witness may be asked if the gen- eral reputation of the other witness is such as to entitle him to credit on oath.— Holbert v. State, 9 Tex. App. 219, 35 Am. R. 738. EXAMINATION OF WITNESSES. 913 Utah. After a witness is shown to have knowledge of the general character of the witness sought to be impeached, the following form of question is held proper: "Do you know what the general reputation of John Doe is for truth and veracity in the neighborhood where he resides?" If the question is answered in the affirmative, the next question will be: "What is that reputation, — good or bad?" If the answer is "Bad," the further question may be put: "From that reputation, would you believe him on oath in a matter where he is personally interested?" — State v. Marks, 16 Utah 204, 51 P. 1089. Washington. Where testimony had been introduced to show that a witness's reputation for truth and veracity was bad, it is error to ask whether from witness's knowl- edge of his reputation he would believe him under oath. —State v. Miles, 15 Wash. 534, 46 P. 1047. Time of Reputation. It is a question for the court to determine whether or not general reputation in a place of former residence is too remote in point of time to be allowed in evidence. — Snow v. Grace, 29 Ark. 131; Cline v. State, 51 Ark. 140, 10 S. W. 225 (25 or 30 years before in place where he then lived); People v. Cord, 157 Cal. 562, 108 P. 511. California. Reputation of a witness in a county from which he had been absent for twenty years, and in which he had done no business since his departure, is inadmis- sible as too remote.— People v. Cord, 157 Cal. 562, 108 P. 511. Nebraska. General reputation for truth and veracity is not limited to a time before the commission of the alleged crime.— Long v. State, 23 Neb. 33, 36 X. W. 310. Texas. A reputation arising after the transaction which is the subject of the action cannot be shown. — Johnson v. Brown, 51 Tex. 65. Utah. Where the general reputation of an accused who has taken the stand in his own defense is attacked, or ins character is otherwise placed in issue, proof thereof should be confined to a dale not later than the commission of the alleged offense.— State v. Marks. 16 Utah 204, 51 P. 1089. 914 EXAMINATION OF WITNESSES. Place of Reputation. Evidence of the reputation of a witness for truth and veracity at a place of former residence is admissible, if not too remote: Arkansas: Lawson v. State, 32 Ark. 220 (two years be- fore, and at a different place). Kansas: Coates v. Sulau, 46 Kan. 341, 26 P. 720 (at a place from which he had removed only a few months be- fore). Nebraska: Sun Fire Office v. Ayerst, 37 Neb. 184, 55 N. W. 635 (at place several years after he had ceased to re- side there, inadmissible) ; Faulkner v. Gilbert, 61 Neb. 602, 85 N. W. 843 (same). Texas: Thurmond v. State, 27 Tex. App. 347, 11 S. W. 451 (at a place from which he had removed only eighteen months); Mynatt v. Hudson, 66 Tex. 66, 17 S. W. 396 (in a community from which he had removed four years be- fore, admissible); Hampton v. State, (Tex. Cr. R), 183 S. W. 887 (reputation at another place at a period ten or twelve years before, inadmissible as too remote, especially as he had lived at his present residence five or six years). Nebraska. Evidence of the general reputation of a wit- ness for truth and veracity, to be available for the im- peachment of such witness, must have reference to such reputation at his present or recent place of residence. It should not relate to a residence which had ceased two and a half years before such witness testified. — Sun Fire Office v. Ayerst, 37 Neb. 184, 55 N. W. 635. Texas. For the purpose of impeaching testimony of a witness, his general reputation for truth and veracity in the neighborhood in which he formerly lived is proper, where he has lived only a short time in the vicinity in which he is now living. — Coffelt v. State, 19 Tex. App. 436; Lum v. State, 11 Tex. App. 483. Washington. The reputation of a witness for truth and veracity is admissible, though acquired in a city five or six miles distant from his residence. — State v. Cushing, 14 Wash. 527, 45 P. 145. EXAMINATION OF WITNESSES. 915 Anticipatory Impeachment. Idaho. A witness whose testimony is taken by deposition may not impeach the credibility of another person on the anticipation that such other may become a witness in the case.— Boeck v. Boeck, (Ida.), 161 P. 576. Prerequisites to Admissibility. Testimony as to the good reputation of a witness for truth and veracity is not admissible unless the character of such witness for truth and veracity has first been at- tacked, and is not admissible merely because the testi- mony of other witnesses conflicts with his, or his testi- mony is shaken by cross-examination. — Van Horn v. Van Horn, 5 Cal. App. 719, 91 P. 260; Title Ins. & Trust Co. v. Ingersoll, 153 Cal. 1, 94 P. 94; Fernandez v. Watt, 26 Cal. App. 86, 146 P. 47; First Nat. Bank v. Blakeman, 19 Okl. 106, 91 P. 868; Jones v. State, 9 Okl. Cr. 646, 133 P. 249; Holmes v. State, 52 Tex. Cr. R. 352, 106 S. W. 1160; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138; Downing v. State, 61 Tex. Cr. R. 519, 136 S. W. 471; Houston Elec. Co. v. Jones, (Tex. Civ. App.), 129 S. W. 863; Lacy v. State, 63 Tex. Cr. R. 1S9, 140 S. W. 461; Allen v. State, 64 Tex. Cr. R. 225, 141 S. W. 983; Wells Fargo & Co. v. Benjamin, (Tex. Civ. App.), 165 S. W. 120; Solis v. State, (Tex. Cr. R.), 174 S. W. 343; Clay v. State, (Tex. Cr. R.), 180 S. W. 277; Ingram v. State, (Tex. Cr. R.), 182 S. \Y. 290; Bennett v Seattle Elec. Co., 56 Wash. 407, 105 P. 825. Oklahoma. The state cannot attack the character of a defendant unless he first puts that in issue by introducing evidence of his good character. — Kirk v. State, 11 Okl. Cr. 203, 145 P. 307; Upton v. State, (Okl. Cr.), 160 P. 1134. Oregon. To warrant evidence of the good character of a witness, there must have been evidence tending to im- peach the character of that witness, and evidence of con- tradictory statements will not suffice. — State v. Louie Hing. 77 Or. 462, 151 P. 706. Texas. Impeaching testimony is not Inadmissible because the attacked witness lives in a distant state, and the op- posing party had not been notified that an attack would 916 EXAMINATION OF WITNESSES. be made upon his credibility. — St. Louis Southwestern Ry. Co. v. Garber, 51 Tex. Civ. App. 70, 111 S. W. 227. Testimony to sustain the good character of a witness though a party, for truth and veracity, is not admissible unless an attempt has been made by the opposite side to impeach such character. — Missouri, K. & T. Ry. v. Williams, (Tex. Civ. App.), 133 S. W. 499. Rebuttal of Impeaching Testimony. Arkansas. Where a witness is introduced to sustain the character of the witness sought to be impeached, interro- gatories similar to those proper to be propounded to the impeaching witness should be propounded to him. — Cole v. State, 59 Ark. 50, 26 S. W. 377. Kansas. The law presumes that witnesses are truthful, and without any evidence on that point they are entitled to credit; but if they have established a reputation in the vicinity where they reside for untruthfulness, this fact may be shown in evidence, and the witness is impeached. But to defeat this attempted impeachment it is only nec- essary to show that the impeaching testimony is not true, and that the witness has not a bad reputation for truth and veracity. — Stevens v. Blake, 5 Kan. App. 124, 48 P. 888. Oregon. In a prosecution for rape, where the state, in rebuttal of evidence of defendant showing that the repu- tation of prosecutrix for chastity and virtue was bad, in- troduced a witness who testified that he was acquainted with her reputation in these respects, and that it was good, so far as he had heard, he may be asked by the de- fendant if he had ever heard of her being discharged from several named places of employment on account of her immoral character. — State v. Ogden, 39 Or. 195, 65 P. 449. Effect of Impeachment. Oregon. A court is not bound to disregard the testimony of an impeached witness, but it should be compared with the other evidence and facts proved in the case, and giver such weight as it is entitled to, under the circumstances.. — Wimer v. Smith, 22 Or. 469, 30 P. 416. «. EXAMINATION OF WITNESSES. 917 Washington. The testimony of a witness who has been impeached ought not to be wholly disregarded by the jury, if the jury feel justified, from the deportment of the wit- ness on the stand or the probability of his testimony, in believing any part of it, even if he receives no other cor- roboration.— State v. Gaul, 88 Wash. 295, 152 P. 1029. Supporting Impeached Witness. Texas. The testimony of an impeached witness may be supported by evidence of other witnesses to show that he made statements similar to his present testimony prior to the trial and shortly after the transaction testified to. —Lewis v. State, 64 Tex. Cr. R. 490, 142 S. W. 875. Article 134. offenses against women. When a man is prosecuted for rape or an at- tempt to ravish, it may be shown that the woman against whom the offense was committed was of a generally immoral character, although she is not cross-examined on the subject, (a) The woman may in such a case be asked whether she has had connection with other men, but her answer can- not be contradicted, (b) She may also be asked whether she had had connection on other occa- sions with the prisoner, and if she denies it she [probably] may be contradicted, (c) CHARACTER OF PROSECUTRIX. The general reputation of prosecutrix in rape cases for unchastity is admissible to show the probability of con- sent.— State v. Brown. 55 Kan. 766, 42 I'. 863; State v. ci ' R. v. Clark.', L' Star. 241. (t.) K. v. Holmes, L. R. 1 C. C. R. 334. (c) it. v. Martin, 6 C. & i '. 562, and remarks In R. V. Holmes, p. 837, per Kelly, C. B. 918 EXAMINATION OF WITNESSES. Ogden, 39 Or. 195, 65 P. 449; Jacobs v. State, (Tex. Cr. R.), 146 S. W. 558. Arkansas. The prosecutrix may be asked on cross-exam- ination as to whether she had ever had intercourse with other men; to affect her credibility. — King v. State, 106 Ark. 160, 152 S. W. 990; Garrard v. State, 113 Ark. 598, 167 S. W. 485. California. In a prosecution for rape, it is not permissible for the prosecutrix to testify upon her examination in chief that prior to the alleged offense she had never had sexual intercourse with anyone. The previous chaste character of the female should be inferred by the jury in the absence of evidence to the contrary, and can only be proved by way of rebuttal of attacking evidence. — People v. O'Brien, 130 Cal. 1, 62 P. 297. Oklahoma. The "character" of the female, mentioned in the statute, is that condition actually existing, contradis- tinguished from a character by reputation. — Marshall v. Territory, 2 Okl. Cr. 136, 101 P. 139. Washington. Upon a prosecution for rape of a female be- tween the ages of 15 and 18 years, evidence of general reputation for unchastity is not a defense, but goes to the credibility of the prosecuting witness. — State v. Workman, 66 Wash. 292, 119 P. 751. Specific Acts. See article 133. General reputation for chastity is admissible, but not particular instances, to show consent. — State v. Brown, 55 Kan. 766, 42 P. 363; State v. Campbell, 20 Nev. 122, 17 P. 620; Pefferling v. State, 40 Tex. 486. California. In a prosecution for rape, when the com- plaining party is the only witness, particular acts of lewd- ness with other men on the part of the female, were ad- missible as tending to disprove the allegation of force and total absence of assent on her part. — People v. Ben- son, 6 Cal. 221, 65 Am. Dec. 506. As a general rule, both the general reputation of the prosecutrix for chastity and particular acts of unchastity EXAMINATION OF WITNESSES. 919 may be proven in a criminal action for rape. — People v. Johnson, 106 Cal. 289, 39 P. 622. Upon the trial of a person for rape, evidence is permis- sible to show that the prosecutrix, previous to the time of the alleged offense, had consented to intercourse with other men.— People v. Shea, 125 Cal. 151, 57 P. 885. Kansas. In a prosecution for rape, evidence which tended to show that the female had been an unchaste woman was competent; but specific acts of unchastity were incom- petent to prove probable consent to sexual intercourse with the defendant.— State v. Bryan, 34 Kan. 63, 8 P. 260; State v. Brown, 55 Kan. 766, 42 P. 363. Upon a prosecution for statutory rape, defendant should be permitted to cross-examine plaintiff fully in regard to her associations with other men at or about the time of her conception. — State v. Gereke, 74 Kan. 196, 87 P. 759; overruling 86 P. 160. Nevada. On a trial for rape, the court properly excluded evidence as to particular acts and instances of unchastity on the part of prosecutrix not connected with the case on trial.— State v. Campbell, 20 Nev. 122, 17 P. 620. New Mexico. On a trial for rape, evidence of particular instances of unchastity on the part of the female is not permissible, her character being subject to impeachment only by general evidence of her reputation therein. — Ter- ritory v. Pino. 9 N. M. 598, 58 P. 393. Oklahoma. The character of the female that is put in issue in an action for rape, is not that character which she holds by reason of general reputation. The female's actual chaste and virtuous state or condition is her shield and protection; and this should be so, because she may be falsely accused, as many men and women are in this day. That a false accusation should license the libertine to take advantage of a chaste and virtuous female would be revolting. Such a law would fall short of being right- eous and just, and put womankind at the mercy of scandal mongers v.nd character assassins. — Marshall v. Territory, 2 Okl. Cr. 136, 101 P. 139. 920 EXAMINATION OP WITNESSES. When a defendant is on trial for having sexual inter- course with a female under 18 years of age, not the wife of defendant, and of previous chaste and virtuous char- acter, the defendant cannot attack her character for virtue and chastity by proof of her general reputation, but he is permitted to prove, if he can, any specific act indicat- ing the want of chastity upon her part. The rule usually, in such a case, is not the reputation of the female, but whether, as a matter of fact she was chaste and virtuous prior to such intercourse. — Hart v. Territory, 5 Okl. Cr. 162, 114 P. 261. Oregon. In a prosecution for rape, evidence of specific acts of unchastity on the part of the prosecutrix with others than the defendant is inadmissible, and she cannot be asked whether previous to the act in question she had ever had intercourse with anybody (other than defendant). —State v. Ogden, 39 Or. 195, 65 P. 449. If the prosecutrix has attained the legal age, her char- acter may be challenged by inquiring of her on cross-ex- amination whether she has had illicit relations with the accused at any time prior to the act with the commission of which he is charged; evidence of such previous connec- tion being admissible to give rise to a presumption that she consented to the act in question. — State v. Ogden, 39 Or. 195, 65 P. 449. Texas. Evidence of other intercourse between the same parties is admissible. — Abernathy v. State, (Tex. Cr. R.), 174 S. W. 339. Washington. The obvious purpose of a statute to pro- tect females over 15 years of age and under 18 years of age and containing the words "previously chaste char- acter," means actual physical condition as distinguished from a chaste state of mind as shown by general conduct; a lack of chastity in the female, cannot be proved except by specific acts of unchastity. — State v. Workman, 66 Wash. 292, 119 P. 751. Female Under Age. Evidence showing that a female under the age of con- sent has had prior sexual intercourse with other men is ; EXAMINATION OF WITNESSES. 921 inadmissible as bearing upon her credibility, as well as for every other purpose. — People v. Johnson, 106 Cal. 289, 39 P. 622; People v. Liggett, 18 Cal. App. 367, 123 P. 225; Walker v. State, 8 Okl. Cr. 125, 126 P. 829; Allen v. State, 10 Okl. Cr. 55, 134 P. 91; Kearse v. State, (Tex. Cr. R.), 151 S. W. 827; State v. Gay, 82 Wash. 423, 144 P. 711. Arizona. Upon a prosecution for rape of a female 13 years of age, it was not error to refuse the admission of evidence that the house in which the child lived was a house of bad repute for chastity. — Territory v. Richmond, 2 Ariz. 68, 10 P. 368. California. In a prosecution for rape, where the prosecu- trix is under the age of consent, evidence as to her repu- tation for chastity is not admissible. — People v. Wilmot, 139 Cal. 103, 72 P. 838; People v. Johnson, 106 Cal. 289, 39 P. 622; People v. Currie, 14 Cal. App. 67, 111 P. 108. Idaho. On a trial for rape, where the female was under the age of consent, evidence was inadmissible to show that she ever had sexual intercourse with anyone prior to the time she submitted to that relation with defendant. —State v. Hammock, 18 Ida. 424, 110 P. 169. Oklahoma. Evidence tending to show a lack of chastity on the part of the prosecutrix is only admissible to raise the presumption of consent, and in the case of statutory rape, that issue is not present. — Walker v. State, 8 Okl. Cr. 125. 126 P. 829. Utah. Where a crime charged is sexual intercourse with prosecutrix under the age of consent, the intercourse con- stituted the offense whether she consented or not, and her good or bad character for chastity as affecting the crime charged, was not in issue, but her general reputation for truth and veracity was. — State v. Hilberg, 22 Utah 27, 61 P. 215; State v. Williamson, 22 Utah 248, 62 P. 1022. 922 EXAMINATION OF WITNESSES. Article 135. what matters may be proved in reference to declarations relevant under articles 25-34. Whenever any declaration or statement made by a deceased person relevant or deemed to be relevant under articles 25-33, both inclusive, or any deposition is proved, all matters may be proved in order to contradict it, or in order to impeach or confirm the credit of the person by whom it was made which might have been proved if that person had been called as a witness, and had denied upon cross-examination the truth of the matter suggested, (a) Oregon. For the purpose of discrediting dying declara- tions, the fact that deceased was a disbeliever in a future state of rewards and punishments is admissible. — Goodall v. State, 1 Or. 333. Washington. Circumstances surrounding the making of a dying declaration are admissible to affect its weight and credibility.— State v. Crawford, 31 Wash. 260, 71 P. 1030. (a) R. v. Drummond, 1 Lea. 338; R. v. Pike, 3 C. & P. 598. In these cases dying declarations were excluded, because the persons by whom they were made would have been incom- petent as witnesses, but the principle would obviously apply to all the cases in question. [Otterson v. Hofford, 36 N. J. 1*9; Lossee v. Lossee, 2 Hill (N. Y.), 609; 1 Greenl. Ev., § 163.] EXAMINATION OF WITNESSES. 923 Article 136. refreshing memory. A witness may, while under examination, re- fresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the judge considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the wit- ness within the time aforesaid, if when he read it he knew it to be correct, (a) An expert may refresh his memory by refer- ence to professional treatises, (b) REFRESHING MEMORY. General Rule. It is not error to permit a witness to refresh his mem- ory of dates, weights and prices, made in his own hand- writing at or about the time of the particular transactions. — Rohrig v. Pearson, 15 Colo. 127, 24 P. 1083; Sanders v. Wakefield, 41 Kan. 11, 20 P. 518; Atchison. T. & St. F. Ry. Co. v. Lawler, 40 Neb. 356, 58 N. W. 968. If it appears from an examination of all the evidence that a witness has an independent recollection in the main of a transaction, he may use a memorandum made by an- other, to refresh his memory as to the details thereof. — Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602; Western Union Tel. Co. v. Collins, 7 Kan. App. 97, 53 P. 74; La- boree v. Klosterman. 33 Neb. 150, 49 N. W. 1102; State v. Magers, 35 Or. 520, 57 P. 197; Brown v. Smith, 24 S. D. 231, 123 N. W. 689. (a) 2 Ph. Ev. 480, &c; T. E. ss. 1264-1270; R. N. P. 194-195. (b) Sussex Peerage Case, 11 C. & F. 114-117. 924 EXAMINATION OF WITNESSES. Arkansas. Witnesses should be permitted to testify as to facts disclosed by memoranda which appeared upon en- velopes which each held in his hand, which memoranda each stated were made by him at the time of the trans- actions to which they referred, and truly representing the transaction, each stating that he relied on the memoranda for his statements, and not upon present recollection. — Woodruff v. State, 61 Ark. 157, 32 S. W. 102. California. A bookkeeper, as a witness, has the right to refer to the books kept by him, in order to refresh his memory as to facts contained therein. — Treadwell v. Wells, 4 Cal. 260. A witness called by the prosecution in a criminal case to prove statements made by the defendant, may, while on the stand, refresh his memory by a reference to a writ- ten memorandum made by him at the time or soon after. —People v. Cotta, 49 Cal. 166. A witness cannot refresh his memory from an affidavit subscribed and sworn to by him ex parte, where there is no showing that he had written the affidavit, or that it had been made under his direction, at the time the facts occurred, or immediately thereafter, or at any other time when the facts were fresh in his memory, and that he knew that the same were correctly stated in the writing, —Morris v. Lachman, 68 Cal. 109, 8 P. 799. A physician who attended the mother at the birth of a child may testify as to the date of its birth after refresh- ing his memory by an entry in his cash book of that date. —People v. Vann, 129 Cal. 118, 61 P. 776. Letter press copies of an original report of daily sales of tickets made by a railroad agent may be used by him to refresh his memory as to the sale of a certain ticket. — ■ People v. Lowrie, 4 Cal. App. 137, 87 P. 253. Colorado. Though there is sufficient foundation laid for the introduction of books of account themselves, yet they may, without being introduced, be used to refresh the mem- ory of a witness who recollects the greater part of the transactions without them. — Moynahan v. Perkins, 36 Colo. 481, 85 P. 1132. EXAMINATION OF WITNESSES. 925 Kansas. A witness may refresh his recollection by ref- erence to any memoranda relating to the subject-matter to which his attention is directed on the stand, whether the memoranda is in such form as to be competent as independent evidence or not, and then testify, providing he then has any independent recollection of such subject- matter.— McNeely v. Duff, 50 Kan. 488, 31 P. 1061. Nebraska. A witness who had taken shorthand notes of certain testimony at a former trial is competent to testify to the facts in evidence from her own recollection, while refreshing her memory from her notes, if she states that she remembers the testimony that the witness gave on the former trial. — Small v. Poffenbarger, 32 Neb. 234, 49 N. W. 337. A memorandum in the form of an inventory of goods may be used by a witness to refresh his memory, in order to enable him to testify as to the particular items of a stock of goods and their value, which he claims has been converted.— Gross v. Scheel, 67 Neb. 223, 93 N. W. 418. Nevada. A witness may read from a writing in order to refresh his memory as to its contents; the writing itself not being offered in evidence, but the recollection of the witness. — Pinschower v. Hanks, 18 Nev. 99, 1 P. 454. New Mexico. A written memorandum may not be used to refresh the memory of a witness unless its correctness when made is first established.— Territory v. Harwood, 15 N. M. 424, 110 P. 556. North Dakota. There can be no refreshing of the recol- lection concerning matters of which the witness never had any actual personal knowledge. (Statements in books of account which the witness was not concerned directly in making). — Dr. R. D. Eaton Chemical Co. v. Doherty, 31 N. D. 175, 153 N. W. 966. Oregon. Under the common law rule there are three classes of cases in which a witness is allowed to refresh his memory by means of written memoranda: (1) Where the writing serves only to revive or assist the memory, and to bring to mind a recollection of the facts; (2) where 926 EXAMINATION OF WITNESSES. the witness may recall having seen the writing before, and, though he has no independent recollection of the facts mentioned in it, yet remembers that at the time he saw it he knew the statements therein contained to be correct; and (3) where it brings neither any recollection of the facts mentioned in it, nor any recollection of the writing itself, but which enables him to swear to a particular fact from the conviction of his mind on seeing a writing which he knows to be genuine. — State v. Magers, 36 Or. 38, 58 P. 892. Texas. It was permissible for a witness to refresh his memory from a book of accounts between himself and a former partner, the entries having been made by him, al- though such book had not been produced by the witness in response to a subpoena duces tecum, the book of ac- counts having nothing to do with the matters such sub- poena concerned itself with. — Faver v. Bowers, (Tex. Civ. App.), 33 S. W. 131. Plaintiff may refresh his memory as to the weights of certain stock by consulting an account sales made by the consignees thereof, where he testifies that it corresponds with the weights as he heard them called off. — St. Louis, I. M. & S. Ry. Co. v. Wills, (Tex. Civ. App.), 102 S. W. 733. It is always permissible to permit the witness to refresh his memory.— Taylor v. State, (Tex. Cr. R.), 179 S. W. 113. Washington. Where a question calls for the contents of an insurance policy, as between a witness's memory of what it contained and the memoranda of its contents made by him, his memory is best evidence, even though he is compelled to use his memoranda to refresh his memory. —State v. Mann, 39 Wash. 144, 81 P. 561. NECESSITY OF FAILURE OF RECOLLECTION. Kansas. A witness may be permitted to refresh his memory from a writing or memorandum made by himself shortly after the occurrence of the fact to which it re- lates; but it is only when the memory needs assistance that resort may be had to these aids, and, if the witness ! EXAMINATION OF WITNESSES. 927 has an independent recollection of the facts inquired about, there is no necessity nor propriety in his inspect- ing any writing or memorandum. — State v. Baldwin, 36 Kan. 1, 12 P. 318. South Dakota. A writing cannot be used to refresh the memory of a witness who has not stated that he did hot remember the facts desired to be ascertained. — State v. Burns, 25 S. D. 364, 126 N. W. 572. Independent Recollection of Facts. Arkansas. Witnesses were properly permitted to testify as to facts disclosed by memoranda which appeared upon envelopes which each held in his hands, which memoranda each stated were made by him at the time of the trans- actions to which they referred, and truly represented the transaction; each stating that he relied on the memoranda for his statements, and not upon present recollection. — Woodruff v. State, 61 Ark. 157, 32 S. W. 102. Nebraska. Where a witness testified that a memorandum of a statement was made by him at the time, and is cor- rect, he may testify with the aid of the memorandum, though he has no independent recollection of the facts. — Welch v. Adams, 87 Neb. 681, 127 N. W. 1064. Texas. Writings may be used to assist memory, where the witness recollects having seen the writing before, and although he has no independent recollection of the facts mentioned in it, yet he remembers that, at the time he saw it, he knew the contents to be correct. (Justice of the peace testifying as to certain facts from docket en- tries made by him at the time of a transaction which he did not personally recollect.) — Kimbrough v. State, 28 Tex. App. 367, 13 S. W. 218. Washington. A hotel proprietor may testify to the pres- ence of defendant as a guest on certain dates by refresh- ing his memory by means of the hotel register, the name of defendant appearing thereon written by the hotel keep- er, where he testifies that he does not have a personal rec- ollection of defendant's being there on that date, but that he would not have written down defendant's name if 928 EXAMINATION OF WITNESSES. he had not been there at the times stated. — State v. Dou- ette, 31 Wash. 6, 71 P. 556. Requisites of Memoranda. California. It is not error to refuse to allow a witness to refresh his memory from an ex parte affidavit where it was not shown that it had not been made under his di- rection at the time the facts deposed to occurred, or im- mediately thereafter, or when the facts were fresh in his memory, or that he knew the same were correctly stated. —Morris v. Lachman, 68 Cal. 109, 8 P. 799. New Mexico. Any writing or memorandum made by the witness or under his direction at the time of the transac- tion, or soon afterwards, when read and examined by him, may be referred to in order to refresh his memory. — Price v. Garland, 3 N. M. 505, 6 P. 472. Account books may be used to refresh the memory only of the one who made them or had personal knowledge of their correctness. — Price v. Garland, 3 N. M. 505, 6 P. 472. Made Under Direction of Witness. California. A witness may refresh his memory from mem- oranda although such memoranda was not made at the time the occurrences took place nor by witness himself, if it was made under his direction at any time while the facts were fresh in his memory. — Paige v. Carter, 64 Cal. 489, 2 P. 260. It is proper to permit a witness to refresh his memory as to deposits made to his account and drafts drawn against it from a bank pass book, where it is shown that such entries were admittedly made in witness's presence and under his direction and he knew at the time that they were correct. — McGowan v. McDonald, 111 Cal. 57, 43 P. 418, 52 A. S. R. 149. Oregon. The cashier of a bank may refresh his memory by a memorandum of a bank account copied from books kept under his direction which he knew to be correct, the memorandum being carefully compared with the original, and after using it he was able to testify from memory of the transaction. — Haines v. Cadwell, 40 Or. 229, 66 P. 910. EXAMINATION OF WITNESSES. 929 Made By Others. Arkansas. An agent of plaintiff may refresh his memory as to an account owed by defendant, by use of a balance sheet which had been compared by him and defendant with defendant's books, and found to be correct, though the bal- ance sheet was not made by the witness. — Milwaukee Harvester Co. v. Tymich. OS Ark. 225. 58 S. W. 252. The question being whether a certain telegram was sent, testimony of an operator that he did not send the mes- sage himself, but that he put certain service marks on it indicating the sending by a receiving operator, and that he must have known of the sending of the message or he would not have put the marks on it, renders the telegram with the marks thereon admissible as evidence of the past recollection of the witness.— St. Louis S. W. Ry. Co. v. White Sewing Mach. Co.. 78 Ark. 1. 93 S. W. 58. Payrolls on which a witness based his testimony as to the date of the cutting of certain timber, excluded. — Moore & McFerrin v. Luehrmann Hardwood Lbr. Co., 82 Ark. 4S5. L02 S. W. 385. The president of a company cannot testily as to the date of receipt of a gin shaft rod. by stating that the com- pany records showed their receipt at a certain date, where he did not keep such records nor supervise their keeping. — Kansas City Southern Ry. Co. v. Morrison, l":i Ark. 522. 146 S. W Nebraska. A memorandum of a transaction, made by an- other than the witness who uses the same to refresh hits memory and revive his personal recollection of the trans- action, is admissible without the corroborating testimony of the person who made it. if he is beyond the reach of the process of the court, his whereabouts being unknown, upon proof of his handwriting. — Labaree v. Klosterman, 33 Neb. 150, 49 X W. 1102. A witness may refresh his memory from a memorandum made at or near the time the transaction mentioned in it took place, even though the memorandum was not made by himself, If, aftei it. he has a personal recollec 930 EXAMINATION OP WITNESSES. tion of the facts therein stated, and can testify as to them of his own recollection. — Labaree v. Klosterman, 33 Neb. 150, 49 N. W. 1102. Oregon. An officer before whom a statement was made by accused after his arrest may refresh his memory from the transcript of the notes of the stenographer who took down the statement at the time under the direction of the officer, though he could not read the notes. — State v. Magers, 36 Or. 38. 58 P. 892. The statute has changed that part of the common-law rule permitting a witness to refresh his memory from a memorandum or record made by another, if read by or to him when the matter was fresh in his memory, so that he is enabled to depose that the writing correctly repre- sented his recollection at that time; so that now a mem- orandum must have been made by the witness himself or under his direction. — Manchester Assur. Co. v. Oregon R. Co., 46 Or. 162, 79 P. 60. Texas. A consignee's entry as to condition of cotton on receipt, the damage done to it and various details, may be used to refresh the memory of a witness who knew generally of the facts, although the clerk who made the entries was not called. — International & G. N. R. Co. v. Blanton, 63 Tex. 109. Made Up From Various Documents. Texas. A witness cannot refresh his memory from mem- oranda made at his dictation by his attorney from old letters, memoranda and receipts; the original documents could be used for that purpose, but not the copies. — Wat- son v. Miller, 82 Tex. 279, 17 S. W. 1053. . * ■ i ... ■ * . ■i_:.u...',.v! Copy of an Original. Arkansas. A copy of a copy of an account sued on may be used by plaintiff to refresh his memory, where it is shown that the copy is a true one. — Brinkley Car Works Mfg. Co. v. Farrell, 72 Ark. 354, 80 S. W. 749. California. Where the deposition of a party was attempted to be made, but for some reason it was not signed, the EXAMINATION OF WITNESSES. 931 stenographer who took the testimony may refresh his memory from his transcription of notes of the testimony, and may read the contents of the memoranda to the court. — Burbank v. Dennis, 101 Cal. 90, 35 P. 444. Colorado. It is not necessary that a writing used by a witness to refresh his memory be an original writing, pro- vided that after inspecting it the witness can speak to the facts from his own recollection. As to the time when such writing should have been made, precise rule can be stated. — Lawson v. Glass, 6 Colo. 134. For the purpose of refreshing his memory and enable him to state with accuracy facts concerning which he has independent knowledge, a witness may be allowed to refer to memoranda taken from a book kept by him, although the original book is not produced. — Denver & Rio Grande Ry. Co. v. Wilson, 4 Colo. App. 355, 36 P. 67; Lawson v. Glass, 6 Colo. 134; Michigan Ins. Co. v. Wich, 8 Colo. App. 409, 46 P. 687. Montana. A stenographer who took the testimony of a witness at a former trial may, where his notes have been lost, read his transcript thereof, after testifying that they are an accurate translation of the notes, and that he has no independent recollection of the testimony. — O'Rourke v. Grand Opera House Co., 47 Mont. 459, 133 P. 965. Nebraska. Whore a witness testified that the figures used by him to refresh his memory were made at the time of the transaction recorded, and were correct, but that he had lost the original, and that the copy was correct, the testimony is admissible.— Anderson v. Imhoff. :!4 Neb. 335, :>1 \\ \V. 854. Oklahoma. An officer who has taken goods upon legal process may refresh his memory from a typewritten copy of his return upon process showing the property taken by himself, which copy was made in his presence and under his direction.— Flohr v. Territory, 14 Okl. 477, 78 P. 565. Texas. A memorandum hook being the primary and best evidence, a copy of such book cannot be used to refresh the memory of the witness where the original is not ac- 932 EXAMINATION OF WITNESSES. counted for.— Brynes v. Pacific Express Co., (Tex. App.). 15 S. W. 46. A witness may refresh his memory as to amounts paid by means of an extract taken from a book in which the entries were made by him at the time of payment. — Faver v. Bowers. (Tex. Civ. App.). 33 S. W. 131. Use of Petition or Complaint. South Dakota. A witness may refresh his memory as to an amount paid him for coal by the defendant, by referring to his complaint in the action. — Brown v. Smith, 24 S. D. 231, 123 N. W. 689. Texas. A witness may refresh his memory by reference to the petition in the case, he having dictated it to his counsel from a list of articles made out by him. — Ham- mond v. Decker. 46 Tex. Civ. App. 232, 102 S. W. 453. Washington. The memory of a witness may be refreshed by a bill of particulars attached to a complaint and made in the handwriting of the witness. — Williams v. Miller & Co., 1 Wash. Ter. 88. Use of Bill of Exceptions and Statement of Facts. Kansas. Where an attorney who was present at the for- mer trial representing one of the parties in the case, is called to give in evidence the testimony of a deceased witness at that trial, he may refresh his recollection from the bill of exceptions, or read the bill of exceptions pur- porting to contain the testimony of the deceased witness, if he shows that he examined the bill and assisted in its preparation, and knew, when the matters therein con- tained were fresh in his memory, that the bill stated what the deceased witness testified to. In such case the testi- mony of the deceased witness embraced in the bill of ex- ceptions, and sworn to be correct by a person present at the former trial, goes before the jury in connection with his oral testimony. — Solomon Railroad Co. v. Jones, 34 Kan. 443, 8 P. 730. Texas. A prosecuting attorney may read from the state- ment of facts in a former trial and ask witness if she made EXAMINATION OF WITNESSES. 933 certain statements. — Pool v. State, 51 Tex. Cr. R. 596, 103 S. W. 892. Use of Prior Testimony or Statements of Witness. Arkansas. A witness may refresh his memory by his deposition taken before a magistrate. — Atkins v. State, 16 Ark. 568. Where the prosecuting witness did not have good rec- ollection as to the purchase of liquor from defendant, it was not error to permit the prosecuting attorney, for the purpose of refreshing his memory, to ask him whether he had not made certain statements to himself and the grand jury.— Thomasson v. State. 80 Ark. 364, 97 S. W. 297. California. Where a witness states that accused had held a certain conversation with him, but said he could not re- member what accused had said, he may be asked, in order to refresh his memory, if he did not on a designated occa- sion make a statement to certain parties as to what de- fendant had said. — People v. Duncan. 8 Cal. App. 186, 96 P. 414. Texas. A witness in a criminal case may refresh his rec- ollection as to a date, and correct his testimony by a ref- erence to his testimony on a preliminary examination. — White v. State, 18 Tex. App. 57. Where a witness for the prosecution testified that he could not read, and showed clearly that he was an unwill- ing witness, the state's counsel may refresh his memory by reading his testimony given at a preliminary examina- tion.— Carpenter v. State. (Tex. Cr. R.), 51 S. W. 227. A witness for the state, to refresh his memory, may read a statement made and signed by him before the .•rand jury. Smith v. State, 46 Tex. Cr. R. 267, 81 S. W 936. TIME OF MAKING MEMORANDA. California, a witness ma his memory with a memorandum made by himself or under his direction at any time when the fad was fresh in his memory. P v. Carter, 64 Cal. 189, 2 I'. 260. 934 EXAMINATION OF WITNESSES. Nebraska. Memoranda to refresh the memory of a wit- ness must have been made up recently after the fact in regard to which he testifies. Memoranda prepared by the attorneys of the witness several months after the occur- rence of the facts testified to, such memoranda being pre- pared from other evidence in possession of the witness, are not admissible to refresh his memory. — Schuyler Nat. Bank v. Bollong, 24 Neb. 825, 40 N. W. 413. A memorandum made at the time of the fact in ques- tion, or soon afterwards, Avhich witness knows to be cor- rect, may be used to refresh memory. — Kearney v. City of Themanson, 48 Neb. 74, 66 N. W. 996. But one made months after cannot be so used. — Weston v. Brown. 30 Neb. 609, 46 N. W. 826. A memorandum which it appears was prepared at the time of the fact in question, or soon afterwards, which the witness knew to be correct at the time it was made, may be used by the witness to refresh his memory. — Atchi- son, T. & S. F. It. Co. v. Lawler, 40 Neb. 356, 58 N. W. 968. Wyoming. Plaintiff's bookkeeper may refresh his mem- ory as to the amount of goods destroyed by fire, by con- sulting a schedule of such goods made up soon after the fire from recollection and duplicate invoices obtained from the merchants who sold the goods to plaintiff. — Kahn v. Trader's Ins. Co.. 4 Wyo. 419. 34 P. 1059. Introduction of Memoranda In Evidence. California. A witness may refresh his memory by a written entry or memorandum made at the time, and it is not necessary that the writing itself be admissible in evidence.— People v. Vann, 129 Cal. US, 61 P. 776. Montana. The value of goods in question could be shown by the testimony of a witness who spoke from knowledge upon that subject, and could not be shown by the intro- duction in evidence of mere memoranda used by the wit- ness as an aid to his memory. — Kipp v. Silverman. 25 Mont. 296. 64 P. 884. EXAMINATION OF WITNESSES. 935 Nebraska. An itemized statement in the form of a mem- orandum of goods purchased and added to the stock de- scribed in an inventory may be used to refresh the mem- ory of a witness as to the particular items of the goods alleged to have been converted, and where the witness testifies that he made such memorandum himself, and that it is correct, it may be introduced in evidence to corro- borate his testimony.— Gross v. Scheel, 67 Neb. 223, 93 N. W. 418. Oklahoma. Written memoranda of subjects and events pertinent to the issues in a cause, made contemporaneously with their taking place, when shown by the oath of the person making them that they were known to be correct when made, may, when the memory of the witness is defic- ient, be used to refresh the memory of the witness; and, when so used, if the witness is unable to state the facts so recorded, such memoranda may be introduced in evi- dence, not as independent proof, but to supply rhe details of what the witness has sworn to generally. — First Nat. Bank v. Yeoman. 14 Okl. 626, 78 P. 388. Oregon. Original memoranda of witnesses showing dates of their inspections of engines must be produced, if they are unable to testify to the facts thereby recorded with- out and independently of them; and it would be com- petent to submit them to the jury. — Manchester Assur. Co. v. Oregon It. Co., 46 Or. 162, 79 P. 60. South Dakota. It is never admissible to obtain the recep- tion in evidence of written or primed papers, otherwise Incompetent, under the guise ami pretense of refreshing the memory.— State v. Bun 14, L26 X. \V. 572 Wyoming. While the freight books of a railroad company may be used to refresh the memory of a witness win has made entries in them, the books in themselves are not evidence and may be excluded as such -Martin v. Union Pacific Ry. Co.. 1 Wyo. 1 13. DISCRETION OF COURT. Arkansas. The trial judge has a large discretion in per- mitting a witness to refresh his memory.— ThomasBOn v. State. 80 Ark. :j(i 1. 97 S. W. 297 936 EXAMINATION OF WITNESSES. South Dakota. i within the discretion of the court to permit a witness i.O' refer to a memorandum to refresh his memory. Bnr, a v. Smith, 24 S. D. 231, 123 N. W. 689. Article 137. bight ok advicrse party as to writing used to refresh MEMORY. Any writing referred to under article 136 must be produced and shown to the adverse party if he requires it; and such party may, if he pleases, cross-examine the witness thereupon, (a) INSPECTION OF WRITING USED TO REFRESH MEMORY. Colorado. Where opposing counsel demanded to see the entire book to which a witness referred in order to refresh his memory as to certain items, the demand not being con- fined simply to the memoranda concerning the business involved in the suit, there was no error in overruling a motion to suppress all testimony relating to the matters stated in the book. — Parks v. Biebel, 18 Colo. App. 12, 69 1'. 273. Kansas. Any writing used by a witness to refresh his memory must be produced and shown to the adverse party, if he requires it, and such adverse party may cross-examine the witness thereon. — Atchison, T. & S. F. Ry. Co. v. Hays, 8 Kan. App. 545, 54 P. 322. Nebraska. Anything referred to by a witness to refresh his memory must be shown to the adverse party, if so de- sired, and he may cross-examine the witness thereon; but it is not required to put the paper in evidence. — Schuyler Nat. Bank v. Bullong, 24 Neb. 825, 40 N. W. 413. Oregon. Section 836, Hill's Ann. Laws, providing that under certain circumstances a witness may refresh his memory by memorandum made by himself or under his (a) See cases in R. N. P. 195. EXAMINATION OF WITNESSES. 937 direction, and that the writing must be produced for in- spection, applies only where the witness consults the writing while under examination. — State v. Magers, 36 Or. 38. 58*P. 892. Where a witness, whether before trial or while under examination, has referred to a writing to refresh his mem- ory, opposing counsel is not entitled to have it produced for inspection if the witness's recollection is thereby so revived that he is able to state the facts of his own knowl- edge independently of the writing; but if, after examining the writing the witness cannot recall the facts, and is de- pendent on the memoranda which he believes states the truth, the writing must be produced and submitted for in- spection.— State v. Magers, 36 Or. 38, 58 P. 892. South Dakota. Where the testimony of a witness in chief is based upon, and inseparable from, a memorandum in writing, he not being able to remember independently thereof, the opposite party is entitled to such writing as a part of the cross-examination. — Mt. Terry Min. Co. v. White. 10 S. I). 620, 7 1 N. W. 1060. Texas. Defendant is entitled on cross-examination to in- sped a written statement made by prosecuting witness before a grand jury and used by him to refresh his mem- ory. Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920. Amu u: 138. GIVING, AS EVIDENCK, DOCUMENT CALLED FOB \NH PRODUCED o\ NOTICE. When a party calls for a document which he has given the other party notice to produce, and such docuinent is produced to, and inspected by, the party calling for its production, he is bound to give it as evidence if the party producing it re- quires him to do so, ;\)u\ if it is or is deemed to be relevant, (a) (a) Wharam v. Routledge, i !■:-■ Lverl \ Flower, 7 C. & P. 386. | Tins is the general bul m>t uniform rule In this count ry. I Greenl. Ev., § 563. 1 938 EXAMINATION OF WITNESSES. Article 1P>9. USING, AS EVIDENCE, A DOCUMENT, PRODUCTION OF WHICH WAS REFUSED ON NOTICE. When a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence with- out the consent of the other party, (a) (a) Doe v. Hodgson, 12 A. & E. 135; [Bogart v. Brown, 5 Pick. (Mass.) 18;] but see remarks in 2 Ph. Bv, 270. DEPOSITIONS. 939 CHAPTER XVII. OF DEPOSITIONS, (a) Article 140. depositions befoke magistrates. A deposition taken under 11 & 12 Vict. c. 42, s. 17, may be produced and given in evidence at the trial of the person against whom it was taken, if it is proved [to the satisfaction of the judge] that the witness is dead, or so ill as not to be able to travel [although there may be a prospect of his recovery] (b) [or, if he is kept out of the way by the person accused] (c) or [probably if he is too mad to testify], (d) and if the deposition purports to be signed by the justice by or before whom it purports to have been taken ; and (a) [This chapter contains what is, and what the author thinks ought to be, the law upon the subject-matter of tak- and using depositions, He follows the English statutes so far as they lead, and bases his suggestions upon decided cases, and upon hi nee and practice, Upon th>' ixen- eral subject, see 2 Wigmore Ev., g§ 1377-1392, L397, 1402- 1417. Each State, however, h:>s its special provisions, a col- ion whereof would hardly be appropriate t'> this com- pendium "i" genera l principles. | (b) R. \ . Stephi nson, I.. & < '. (c) K. v. Scaife, 17 Q B i (d) Analog) of R, \. Scail 940 DEPOSITIONS. if it is proved by the person who offers it as evidence that it was taken in the presence of the person accused, and that he, his counsel, or attor- ney, had a full opportunity of cross-examining the witness; Unless it is proved that the deposition was not in fact signed by the justice by whom it purports to be signed, [or, that the statement was not taken upon oath; or (perhaps) that it was not read over to or •signed by the witness.] (e) If there is a prospect of the recovery of a wit- ness proved to be too ill to travel, the judge is not obliged to receive the deposition, but may post- pone the trial. (f) DEPOSITIONS. General Principles. Under the common law, depositions of witnesses taken in the presence of defendant could be used at the trial of the cause in case of the death or absence of the witness, and our statutes do not prohibit their use, nor is their use in violation of the Sixth Amendment to the Constitution of the United States.— Sneed v. State, 47 Ark. 180; People v. Riley, 75 Cal. 98, 16 P. 544; Territory v. Evans, 2 Ida. 627, 23 P. 232; Hair v. State, 16 Neb. 601, 21 N. W. 464; Greenwood v. State. 35 Tex. 587. (e) I believe the above to be the effect of 11 & 1- Vict. 12, s. 17, as interpreted by the cases referred to, the effect of which is given by the words in brackets, also by common practice. Nothing can be more rambling or ill-arranged than the language of the section itself. See 1 Ph. Ev. 87-1 no ; T. E. s. lis, &C. ffl R v. Tait, 2 F. & P. 55:?. DEPOSITIONS. 941 It was error to admit in evidence a deposition where it appears that the witness was in court at the time of the trial and had already been sworn as a witness in behalf of the defendant and excluded from the court room during the examination of the other witnesses by order of the court and these facts were shown before the deposition was read. — Chicago, K. & W. Ry. Co. v. Prouty, 55 Kan. 503, 40 P. 909; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N. \V. 1; McClure v. Sheek's Heirs. 68 Tex. 426, 4 S. W. 552. Though there is no statutory provision for the inclusion, of exhibits in a deposition, if they are made a part thereof and the answers of the deposition so describe them as to render their identity certain, or. if their identity is clearly established by extraneous evidence, they are admissible in connection with the deposition though they were not inclosed in the envelope containing the certificate and were sent in an unsealed and separate package. — San An- tonio & A. P. Ry. Co. v. Stuart, (Tex. Civ. App.), 178 S. \V. 17; Pope v. Anthony, 29 Tex. Civ. App. 298, 68 S. W. 521; Toby v. Oregon Pacific Ry. Co., 98 Cal. 490, 33 P. 550. Arkansas. Where a deposition in chancery is objected to as containing leading interrogatories, the proper practice is to point to the particular interrogatories which are claimed to be leading and not to object generally. — Clark. Adx.. v. Moss. 11 Ark. 736. The deposition of deceased witness is admissible in e A* dence though he resided in the county where it was ta' and within thirty miles of the place where the court wa s held. — Lawrence v. La Cade. 4U Ark. 378. The deposition of a witness convicted of murder aft er it was taken, la rendered Incompetent by his con? icll« >n, and cannot be admitted alter his execution, altlr jugb it was read on a former trial which took place before hj s , zon . miction.— St. Louis. I \! ft S. Ry. Co. vr. Harper. .-,i Ark 157. 6 S. W. 720. California. The testimony of a party to an act) on ma ; v be taken by deposition if he resides out of the Bt? te in w Men his testimony may be used, although he re sides wi thin 942 DEPOSITIONS. thirty miles of the place of trial.— Skidmore v. Taylor, 29 Cal. 619. To an objection to the reading of a deposition because there was an insufficient showing that the witness was out of the jurisdiction of the court, it was sufficient to show by testimony of a wtiness that he knew deponent for about ten months, and had occasion to search for him, and that he made inquiries for the purpose of seeing whether he was in town or not, and inquired at his former place of business and was told that he was out of the state. — Ren- ton v. Monnier, 77 Cal. 449, 19 P. 820. The presence of a party whose deposition has been taken is never required and the deposition may be read on the trial by the other party though he is in the court room when it is read.— Johnson v. McDuffee, 83 Cal. 30, 23 P. 214. Plaintiff has the right, under the statute, to read the deposition of a witness though he has been present at the trial and that other witnesses were present by whom he could have proved the same facts. — Johnson v. McDuffee, 83 Cal. 30, 23 P. 214. Colorado. A deposition taken in an attachment suit upon notice that the deposition would be read upon the trial of the case, and the witness being sworn to testify in the case, is not admissible upon the trial of an issue between interpleading claimants of the property attached and the plaintiffs in attachment. — Doane v. Glenn, 1 Colo. 495. A commission issued to take a deposition of a witness and directed "To any notary public, justice of the peace, clerk of a court of record or any party authorized to ad- minister oaths in Deer Lodge County, territory of Mon- tana." and the certificate to the return thereof with said commission was signed "W. A. A., commissioner," and there was nothing to show that the said A was clothed with any official character, it was held that the deposition could not be read. — Argentine Falls Silver Min. Co. v. Molson, 12 Colo. 405, 21 P. 190. DISPOSITIONS. 943 Idaho, it will be presumed thai a commissioner before whom a deposition is taken, did all that he was required to do in his official capacity, -Darby v. Heagerty, 2 Ida. 260, 13 P. 85. Kansas. It was error to permit the introduction in evi- dence of a deposition of a witness who was in the county where the case was being tried, the deposition itself show- ing that the witness was a resident of the county. — Chi- cago. K. & X. Ry. Co. v. Brown, 44 Kan. 384, 24 P. 497. An objection to the reading of deposition on the ground that the witness is present in the county of the trial, that he has been in attendance to the court as a witness and he is at present on his way to the place of trial, is not good where the deposition was then read and after the reading of it an offer was made to prove that at the time of the reading the witness was present in the court room. •Eby v. Winters. 51 Kan. 777, 34 P. 471. Nebraska. A notice to take a deposition of a witness therein named, that the deposition would be taken "at the office of M. C. L., in the town of T.. county of L., and State of I." was held to contain a sufficient description of the place of taking of the deposition. — Britton v. Berry, :'o Neb, 325, 30 X. W. 254. It was held to be a sufficient compliance with the statute requiring depositions to be "subscribed by the witness." that the names of the witnesses to the deposition were at- tached thereto with a cross between the christian and the surname, and the word "his" written before and the word "mark" written below the cross, and followed by the words "subscribed and sworn to before me and in my presence. M. ('. L.. Notary Public."— Britton v. Berry. 20 Neb. "l 1 .". 30 X \V. 254, Sec. 386 of the Code provides thai "when the deposition is offered to be rear] in evidence, it must appear, to the satisfaction of the court, that, for any case specified in Section 372, the attendance of the witness cannot be pro- cured." By these sections it devolves upon the party of- fering in read the deposition to show that, for at least 044 DEPOSITIONS. one of the cases mentioned in Sec. 372, the witness must be produced.— Everett v. Tidball, 34 Neb. 803, 52 N. W. 816. Under section 372 of the Code, the deposition of a wit- ness may be used only in the following cases: (1) Where the witness does not reside in the county where the action or proceeding is pending or has been sent for trial by a change of venue, or is absent therefrom; (2) or from age, infirmity or imprisonment the witness is unable to attend the court, or is dead; (3) when the testimony is required upon the motion, or in any other case where the oral ex- amination of the witness is not required. — Everett v. Tid- ball, 34 Neb. 803. 52 N. W. 816; 41 Neb. 849, 60 N. W. 97. A certificate to a deposition, showing that the witnesses were sworn to testify the truth, the whole truth and noth- ing but the truth, without naming the case or matter in or about which they were sworn, but showing the other tacts prescribed by the statutes, is sufficient. — Jameson v. Butler. 1 Neb. 115. Nevada. Where it was agreed by stipulation that a deposi- tion be taken before a certain justice of the peace, such stipulation concedes that there was such a person occupy- ing an official position as justice of the peace, and was an agreement under the statute that such person was to take the deposition. — Blackie v. Cooney, 8 Nev. 41. The use of the word "signature" instead of the word "mark" by the magistrate before whom a deposition was taken, and the misplacing of the words "witness to the above surname" by the magistrate below his jurat, are mere informalities and did not vitiate the deposition. — State v. Depoister, 21 Nev. 107. 25 P. 1000. Oklahoma, The taking of testimony by deposition is. in a sense, a part oi' the trial, and the onposine. party has the right In confront the witness whose depositions were taken under notice and have counsel present to aid in the exam- ination thereof. — Gillis v. First National Bank of Frcder- (Okl.), 148 P. Texas. It will be lumed, in order to authorize the in- troduction of a deposition laken de bene esse, that the wit- ness is beyond the limits of the county, and it is not neces- DEPOSITIONS. 945 sary that there should be an affidavit stating that tact absolutely. — O'Shea v. Twohig, 9 Tex. 336. Where an officer before whom a deposition was taken fails to certify that the same was signed by the witness, the deposition cannot be received in evidence if the objec- tion be properly taken. — Thompson v. Hale, 12 Tex. 139; Trammel! v. McDade. 29 Tex. 360. The right to perpetuate the testimony of witnesses by examination before an officer duly authorized, was recog- nized and established by the civil law many centuries ago, and was the law of Mexico and of Texas as a part of Mex- ico previous to the revolution. — Sullivan v. Dimmitt, 34 Tex. 114. Where upon motion to suppress a deposition upon the ground that the witness failed to answer a material cross- interrogatory, and it appeared from other parts of the deposition that the witness had stated clearly the facts sought for by the cross-interrogatory, the motion was properly overruled. — Bush v. Barron, 78 Tex. 5, 14 S. W. 238. So much of a deposition of a witness as is not pertinent to the interrogatories propounded, should, if properly ob- jected to, be stricken out. — Lee & Co. v. Stowe, 57 Tex. 444. An objection to a question as leading, is an objection not to the substance or relevancy of the evidence, but to the form and manner of obtaining it. and should be made at the time the question Is propounded; but if not in.nl>' then, or within proper time before the case is called for trial, it will be considered as waived. Lee & Co. v. Slow.-. 57 Tex. in An objection to a deposition upon the ground thai an Interrogatory was leading, goes to the form of the taking of the deposition, and correcl practice requires thai notice of such objection be given as provided by statute, other wise such objection is waived.— Lee fi Co v. Stowe, ">7 Tex. 444. An objection to the reading of a deposition upon the ground that deponent was present at the trial, was prop- 946 DEPOSITIONS. erly overruled, it appearing that defendant having full opportunity to cross-examine the witness. — Dillingham v. Hodges, (Tex. Civ. App.), 26 S. W. 86. That a copy of the interrogatories in a deposition and notice were not served upon one party, cannot be taken advantage of by another party not served. — Linskie v. Kerr, (Tex. Civ. App.), 34 S. W. 765. Utah. The person appointed by the court to take a depo- sition in another state, must be one of the specified legal officers mentioned in sec. 410 of the Practice Act, other- wise such person is not authorized to take the deposition. — Newton v. Brown, 1 Utah. 287. Where a witness, being examined upon the taking of his deposition, refuses to answer a material question, it is not error for the court to exclude the whole deposition. — Hadra v. Utah National Bank, 9 Utah 412, 35 P. 508. In a criminal action where the proof is sufficient to show that the witness whose testimony was taken at a prelim- inary hearing is, in fact, out of the state, it was not nec- essary that further proof, that special effort was made to find the witness within the state, be offered, in order to authorize his testimony so taken to be read in evidence. —State v. De Pritto, (Utah), 155 P. 336. Washington. An answer to a cross-interrogatory in a depo- sition as to the condition in which a witness found the vital organs of the deceased when he performed the au- topsy is properly excluded as not responsive, where the answer only stated the conclusion of the witness that the condition of the organs was the same as would be caused by chronic alcoholism and that the odor of alcohol was present. — Independent Order of Forresters v. Bonner, 84 Wash. 13, 145 P. 987. DEPOSITIONS. 947 Article 141. depositions uhdeb 30 & 31 vict. ('. 35, s. 6. A deposition taken for the perpetuation of tes- timony in criminal cases, under 30 & 31 Vict. c. 35, s. 6, may be produced and read as evidence, either for or against the accused, upon the trial of any offender or offense (a) to which it relates — if the deponent is proved to be dead, or if it is proved that there is no reasonable prob- ability that the deponent will ever be able to travel or to give evidence, and if the deposition purports to be signed by the justice by or before whom it purports to be taken, and if it is proved to the satisfaction of the Court that reasonable notice of the intention to take such deposition was served upon the person (whether prosecutor or accused) against whom it is proposed to be read, and that such person or his counsel or attorney had or might have had, if he had chosen to be present, full opportunity of cross-examining the depon- ent, (b) (a) Sic. ) SO & 31 Vict. c. 35, s. fi. The section is very long, and as the first part of it belongs rather to the subject of criminal procedure than to the subject of evidence, I have omitted it. 'Die language is slightly altered. I have not referred to depositions taken before a coroner (see 7 Geo. IV. c. 64, s. 4), because the section says nothing about the conditions on which they may be given in evidence. Their relevancy, there- fore, depends on the common-law principles expressed in article 33. They must he signed by the coroner; but these aie matters nol of evidence, hut of criminal procedure. 948 DEPOSITIONS. DEPOSITIONS IN CRIMINAL CASES. Arkansas. Defendants in criminal cases are, under the statute, entitled to take the depositions of witnesses re- siding out of the state, and the Supreme Court will award the writ of mandamus to compel the Circuit Court to make the necessary order to enable a defendant to take the deposition in such a case. — Giboney v. Rogers, 32 Ark. 462. California. The deposition of a witness of the people in a criminal case may be taken and used upon the trial of the case. — People v. Lee, 49 Cal. 37. The Superior Court has jurisdiction, and is duty bound, to grant an order of commission to take a deposition of a witness out of the state, to be used in a criminal case, on behalf of the defendant, when the witness is material and important to the defense and the showing made contains all that the statute requires. — People v. Lundquist, 84 Cal. 23, 24 P. 153. Kansas. Where a deposition taken by defendant in a criminal case is excluded by the court, it is error; but where the material facts sworn to by the absent witnesses were also proven by another witness whose testimony was wholly uncontradicted, and where the substance of the tes- timony excluded was concerning a remote and unimportant circumstance which could not be of much weight with the jury, it was not reversible error. — State v. McCarty, 54 Kan. 52, 36 P. 338. A defendant in a criminal case, after the plea of not guilty has been entered, may take the deposition of absent witnesses, conditionally, upon a commission issued by a clerk of a court and the service of like notice on the prose- cuting attorney, of the time and place of taking such depo- sition as in civil cases; and where depositions are so taken, they need not be upon written interrogatories. — State v. McCarty, 54 Kan. 52, 36 P. 338. Nebraska. A deposition of a witness in a criminal case cannot be used in evidence without proof that, at the time of the trial, the witness was sick, out of the state, or that DEPOSITIONS. 949 his personal attendance could not be had in court. — State v. Parker, 16 Nev. 79. Texas. A consul of the United States is a competent offi- cer to take a deposition of a witness residing beyond the boundaries of this country. — Adams v. State. 19 Tex. App. 250. At common law, depositions in a criminal case were unknown; and it is only by virtue of the statute that they can be taken and received in evidence, and where a de- fendant seeks to avail himself of this mode of making proof he must comply substantially with .the requirements of the statute. — Adams v. State, 19 Tex. App. 250. Washington. Depositions in a criminal case, tending to show the good character of defendant, are inadmissible in evidence.— State v. Humason, 5 Wash. 499, 32 P. 111. Article 142. DEPOSITIONS I NDKi: MERCHANT SHIPPING ACT, 1854. (a) Whenever, in the course of any legal pro- ceedings instituted in any part of Her Majesty's dominions before any judge or magistrate or be- fore any person authorized by law or by consent of parties to receive evidence, the testimony of any witness is required in relation to the subject- matter of such proceeding, any deposition that such witness may have previously made on oath in relation to the same subject-matter before any justice or magistrate in Her Majesty's dominions or any British consular officer elsewhere is ad- missible in evidence, subject to the following re- strictions : — (a) IT & 18 Viet. c. mi, s. 270. There are some other es in which depositions arc admissible by statute, but they hardly belong to tin* Law of Kvklence. , 950 DEPOSITIONS. 1. If such proceeding is instituted in the Uni- ted Kingdom or British possessions, due proof must be given that such witness cannot be found in that kingdom or possession respectively. 2. If such deposition was made in the United Kingdom, it is not admissible in any proceeding instituted in the United Kingdom. 3. If the deposition was made in any British possession, it is not admissible in any proceeding instituted in the same British possession. 4. If the proceeding is criminal, the deposition is not admissible unless it was made in the pres- ence of the person accused. Every such deposition must be authenticated by the signature of the judge, magistrate, or con- sular officer before whom it was made. Such judge, magistrate, or consular officer must, when the deposition is taken in a criminal matter, cer- tify (if the fact is so) that the accused was pres- ent at the taking thereof; but it is not necessary in any case to prove the signature or the official character of the person appearing to have signed any such deposition. In any criminal proceeding the certificate afore- said is (unless the contrary is proved) sufficient evidence of the accused having been present in manner thereby certified. Nothing in this article contained affects any provision by Parliament or by any local legisla- ture as to the admissibility of depositions or the : practice of any court according to which deposi- tions not so authenticated are admissible as evi- dence. EVIDENCE. HT, L CHAPTER XVIII. OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE. Article 143. A new trial will not be granted in any civil action on the ground of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been there- by occasioned in the trial of the action, (a) If in a criminal case evidence is improperly rejected or admitted, there is no remedy, unless f the evidence would imi have aided the defendant, state v. Hays, 23 Mo. 287. And so it seems to have been held In Smith Carolina, where improper evidence was admitted, state v. Ford, 3 Strobh. ">17. n.: and In Texas. Boon v. state. 12 Texas 237: and in necticut, state v. Alford, 31 Conn. 40, Contra, in Cali- fornia. People v. Williams, 18 Cal. 187.] 952 EVIDENCE. the prisoner is convicted, and unless the judge, in his discretion, states a case for the Court for Crown Cases Reserved; but if that Court is of opinion that any evidence was improperly ad- mitted or rejected, it must set aside the convic- tion, (b) IMPROPER ADMISSION AND REJECTION OF EVIDENCE. In a prosecution for incest, it was reversible error to receive prosecutrix's declarations, made in the absence of defendant, to corroborate her testimony concerning a fact which, in itself, merely tended to prove defendant's adul- terous disposition toward her. — Peterson v. State, 84 Neb. 76, 120 N. W. 1110; State v. De Master, 15 S. D. 581, 90 N. W. 852; Poyner v. State, 40 Tex. Cr. R. 740, 51 S. W. 376. Arkansas. Where evidence in a deposition was adjudged by the court inapplicable to the case, it was ground for a new trial to permit such testimony to be read, unless reasonable notice to the party objecting is given thereby preventing surprise. — The S. B. Violet v. McKay, 23 Ark. 543. California. A verdict upon appeal will not be disturbed if the evidence was conflicting even though the judge who passed in the motion for a new trial did not preside at the trial and for that reason declined to review the evi- dence. — Rice, Aclm'r, v. Cunningham, 29 Cal. 492. Objections to the reception of evidence whether oral or in the form of depositions, must be made at the trial and cannot for the first time be raised on motion for a new trial.— Clark v. Gridley, 35 Cal. 39S. A new trial will not be granted on the ground of newly discovered evidence, if the witness might have been pres- S. 15. Certifying false documents a misdemeanor. (Omit- ted as belonging to Criminal Law.) S. 16. Who may administer oaths. ("Article 125.) S. 17. Penalties for forging certain documents. (Omitted as belonging to the Criminal Law.) S. 18. Act not to extend to Scotland. (Omitted.) S. 19. Meaning of the word "Colony." (Article 80, note 1.) s. 20. Commencement of Act. 956 EVIDENCE. 5. 17 &r 18 Vict. c. 125. The Common-Law Procedure Act of 1854 contained several sections which altered the Law of Evidence. S. 22. How far a party may discredit his own witness. (Articles 131, 133; and see Note XLVII.) S. 23. Proof of contradictory statements by a witness under cross-examination. (Article 131.) S. 24. Cross-examination as to previous statements in writing. (Article 132.) S. 25. Proof of a previous conviction of a witness may be given. (Article 130 (1).) S. 26. Attesting witnesses need not be called unless writ- ing requires attestation by law. (Article 72.) S. 2 7. Comparison of disputed handwritings. (Articles 49 and 52.) After several Acts, giving relief to Quakers, Moravians, and Separatists, who objected to take an oath, a general measure was passed for the same purpose in 1861. 6. 24 & 25 Vict. c. 66 (1st August, 1861, 3 sections): — S. 1. Persons refusing to be sworn from conscientious motives may make a declaration in a given form. (Article 123.) S. 2. Falsehood upon such a declaration punishable as perjury. (Do.) S. 3. Commencement of Act. 7. 28 Vict. c. 18 (9th May, 1865, 10 sections): — S. I. Sections 3-8 to apply to all courts and causes, crim- inal as well as civil. S. 3. Re-enacts 17 & 18 Vict. c. 125, s. 22. S. 4. S. 5. S. 6. S. 7. s. 23. s. 24. s. 25. s. 26. s. 27. The effect of these sections is given in the articles above referred to by not confining them to proceedings under 'the Go.mmon-Law Procedure Act, 1854. The rest of the Act refers to other subjects. 8. 31 & 32 Vict. c. 37 (25th June, 1868, 6 sections): — S, 1. Short title. S. 2. Certain documents may he proved in particular ways. (Art. 83, and for schedule referred to see note to the article.) S. :'.. The Act to he in force in the colonies. (Article 83.) S. l. Punishment of forgery. (Omitted as forming part of the ( !riminal Law.) EVIDENCE. 957 S. 5. Interpretation clauses embodied (where necessary) in article 83. S. 6. Act to be cumulative on Common Law. (Implied in article 73.) 9. 32 & 33 Vict. c. 68 (9th August, 1869, 6 sections): — S. 1. Repeals part of 14 & 15 Vict. c. 99, s. 4, and part of 16 & 17 Vict. c. 83, s. 2. (The effect of this repeal is given in article 109; and see Note XLI.) S. 2. Parties competent in actions for breach of promise of marriage, but must be corroborated. (See articles 106 and 121.) S. 3. Husbands and wives competent in proceedings in consequence of adultery, but not to be compelled to answer certain questions. (Article 109.) S. 4. Atheists rendered competent witnesses. (Articles 106 and 123.) S. 5. Short title. S. 6. Act does not extend to Scotland. 10. 33 & 34 Vict. c. 19 (9th August, 1870, 3 sections): — S. 1. Recites doubts as to meaning of "Court" and "Judge" in s. 4 of 32 & 33 Vict. c. 68, and defines the meaning of those words. (The effect of this provision is given in the definitions of "Court" and "Judge" in article 1, and in s. 125.) S. 2. Short title. S. '■'. Act does not extend to Scotland. These are the only Acts which deal with the Law of Evi- dence as I have denned it. It will be observed that they relate to three subjects only — the competency of witnesses, the proof of certain classes of documents, and certain de- tails in the practice of examining witnesses. These details are provided for twice over, namely, once in 17 & 18 Vict. c. 125, ss. 22-27, both inclusive, which concern civil proceedings only; and again in 28 Vict. c. 18, ss. 3-8, which re-enact these provisions In illation to proceedings of every kind. Thus, when the Statute Law upon the subject of Evidence is sifted and put In Its proper place as part of the general system, it appears to occupy a very subordinate position in it. The ten statutes abo\ e mentioned are the only ones which really form part of the Law of Evidence, and their effect Is fully given in twenty' articles of the Digest, some of which contain other matter besides. >1, 49, 52. 58, 72, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123. 125, 131, 132, 133. INDEX. INDEX. 961 INDEX. Page ABANDONMENT — Declaration on leaving as evidence of intent 85 Parol proof of abandonment of contract 651 Subsequent conduct showing intent to abandon wife 69 ABBREVIATIONS— Judicial notice of 493 ABORTION— Declarations of victim 43 Recent intercourse provable to show intent 61 Other similar acts 66 Dying declaration 240 ABSENCE — Presumption of death from long ab- sence 725-729 Of defendant as affecting competency of declaration of conspirator 42 ABSENT WITNESS— Proof of former testimony of... 309 ACCEPTANCE— Parol proof of 651 ACCESS— Of parents as proof of legitimacy 721-725 ACCIDENTS— Relevancy of proof of other accidents. .127 ACCOMPLICES— Corroboration 168, 834 Declarations 42 ACCOUNT BOOKS— Entries as evidence 246 Knowledge of maker 249 Subect-matter 250 — Cash entries 251 Day books and ledgers 253 Bank books 254 Sundry books 254 Completeness necessary 255 Time of making entry 255 Alterations 256 Mutilations 256 Authentication 256 To whom available 260 ACCOUNTING FOR ORIGINAL— Before producing secondary evidence 565 ACCURACY— Testing accuracy of witness 874 ACKNOWLEDGMENT— Certificate as evidence 332-336 ACQUIESCENCE— See Estoppel. ACTS— See Statutes. ACTS OF CONSPIRATORS— As evidence 42 After completion of main act 45 Evidence of fact of conspiracy 49 ADJUDICATION— Plea of former, and Evidence of, see Judgment. 962 INDEX. Page ADMINISTRATORS — See Executors and Administrators. Admission by 188 ADMISSION— Defined 168-172 General rule 169 Judicial admissions 173 Admissions in pleadings 174 Explanation of admissions 176 Proof and effect 177 By strangers 205 Without preudice 208 By agents and persons jointly interested 190 — As part of transaction 192 — Past transactions 194 — Authority of agent 197 —Proof and effect 293 Corporate officers 198 Public officers 199 Showing knowledge 201 Who may make, on behalf of others 178 — Parties of record 179 — Nominal parties 180 — Interested parties 180 —Privies 181 — Grantor after conveyance 182 — Grantor in possession after conveyance 184 — Seller of personalty 185 — Ancestor 186 —Insured " 187 — Guardian or Trustee 188 — Administrator 188 — Attorneys' •. 199 — Principal and surety 200 —Partners 202 —Joint adventurers 202 ADVERSE WITNESS— Cross-examination, see Witnesses. ADVICE — Of attorney, pastor or physician, see Privi- leged Communications. ADULTERY — Evidence of other acts of intercourse. 66, 146 Corroboration of wife 6 Relevancy of proof of adultery in prosecution for murder 67 AFFIDAVITS— As hearsay 164, 165 Oral evidence given by 851 AFFINITY — Relevancy of evidence of relationship 66 AGE— As affecting competency of witness 777, 781 Provable by opinions ™° Proof by declarations • • • .-«*£ Proof by hearsay lb6 > lbt) INDEX. 963 AGENCY— Admissions by agents 190 — As part of transaction 193 — Past transactions and events 194 — Authority of agent 197 — Of corporations 198 —Attorneys 199 Estoppel of agent 769 Relevancy of proof that agent acted as such on other occasions 154, 157 AGRICULTURE— Proof of agricultural nature of land 119,121 Valuation of damaged crop 131 Valuation of grass 133 ALIBI— Burden of proof 701 ALMANAC— See Time. ALTERATION— Of entries in account books 256 Parol proof of 651 AMBASSADORS — Certificate under official seal as evi- dence 326 AMBIGUITY— Oral evidence to explain 681-683 ANCESTOR — Declarations and admissions by 186 ANCIENT DOCUMENTS— As evidence 281 Presumption as to execution and authority to eexcute.631 Presumption as to delivery, custody and alteration. .633 ANGUISH— Exclamations of pain 303 ANIMALS — Vicious nature of horse not provable by other act 147 Previous habits of dog irrelevant in action for bite. .135 ANIMUS— See Motive. ANNUITY TABLES— Showing probable duration of life.342 ANTE LITEM MOTAM— Declarations 294 ANTICIPATORY IMPEACHMENT— Of witness 915 APPREHENSION OF DEATH— See Dying Declarations. ARMY — Certificate of discharge as hearsay 161 ARREST — Resisting, as evidence of guilt 71 ARTESIAN WELL — Showing defective construction. . .122 ART — Books of art as evidence 281, 339 Judicial notice of matters of art 494 Subject of expert testimony 411 ASSAULT AND BATTERY— Evidence of preparation.. 65 ASSESSORS — Books of assessor as evidence 323 ASSIGNEE — Bound by judgment 380 ATHEIST — Competency as witness 781 ATTESTING WITNESS— Proof of execution of docu- ment by 545-551 ATTORNEYS— Admissions by 199 AUTHENTICATION— Of entries in account books 256 BAD CHARACTER— See Character. 964 INDEX. Page Of accused 456 BAD FAITH— Parol proof of 647 BAILMENT— Estoppel of bailee 766 BANK BOOKS— Copies of entries in 345 Bank not compelled to produce 346 Entries as evidence 254 BAPTISM— Record as evidence 336 BASTARDS— Corroboration of prosecutrix 838 Presumption of legitimacy 721 Proof of legitimacy by declarations 292 BAWDY HOUSE— See Disorderly House. BELIEF — Effect on competency of witness 781 BERTILLION PHOTOGRAPH— To identify accused. . .109 BEHAVIOR— See Demeanor. BEST EVIDENCE— Defined 541 BIBLE ENTRIES— As evidence 289 BILLS AND NOTES— Presumption that note was pre- sented during business hours 156 BODILY FEELING— Declarations showing 299 Relevancy of evidence showing 137 BOOKS — Legal and scientific books as evidence 411 Reading scientific works on examination of expert.. 432 — To contradict expert 433 BOOKS OF ACCOUNT— See Account Books. BOUNDARIES— Declarations relating to 276-279 Declarations of surveyor as hearsay 165 BREACH OF PROMISE— Corroboration of plaintiff 834 BRIBERY — Evidence showing motive 60 BRIDGES — Evidence relevant to show defective condi- tion 135 BURDEN OF PROOF— Civil cases 696 Criminal cases 699 Proof of negative 700 Alibi 701 Insanity 702 Presumption of innocence 705 Proof of commission of crime in civil cases 706 On whom burden lies 708 Shifting of burden 710, 715 Proof of particular facts 713 Preliminary facts 716 Fiduciary relations 718 — Attoreny and client 719 To prove confession 227 BURGLARY— Possession of tools 71 BUSINESS— See Course of Business. BYSTANDERS— Proof of former testimony by 315 CARLISLE TABLES— As evidence of probable duration of life 342 i INDEX. 965 Page CASH ENTRIES— As evidence 251 CAUTION — Prerequisite to admission of confession 232 CELEBRATION— Of marriage, see Marriage. CENSUS— Census roll as evidence 326 CERTIFICATES— As evidence 326 Of acknowledgment 332-336 Of discharge from army 161 CERTIFIED COPIES— As evidence 581,605,622 CHANGE— Presumption of continuity 737 CHARACTER— In civil actions 446 — As an issue in the case 499 — Malicious prosecution 450 — Actions for libel 450 In criminal cases 453 — Good character of defendant 453 — Bad character of defendant 456 — Rebuttal by state 457 — Character of victim of homicide 459 — Keeper of disorderly house 461 — Character of complainant in sexual crimes 462 — Character as element of crime 463 How shown 465 — Specific acts 467 — Opinion 467 Character as affecting damages 468 Of witness 878 CHARTS— As evidence 281 CHILDREN— See age, Baptism. Admissions of children binding parent 199 Declarations of parents to prove parentage 292 Competency as witnesses 777, 781 Presumption of legitimacy 721 CHURCH REGISTERS— As evidence 336 CIRCUMSTANTIAL EVIDENCE— Denned 4, 5 CITY COUNCIL — Records of proceedings as evidence. .328 CLERGYMAN — Confidential communications of parish- ioners 816 CLIENTS — Confidential communications to attorney.803-815 CLIMATE — Proof of temperature by records of weather bureau 112 CO-DEFENDANT— Confession bv 213 COLLATERAL AGREEMENT— Parol proof of 652 COLLATERAL FACT— Evidence to prove irrelevant.. 23 COLLUSION — Impeaching judgment for 388 COMMISSIONS— See Depositions. COMMON CALAMITY— Presumption of survivorship of persons perishing in 730 COMMON KNOWLEDGE— Judicial notice of matters of.495 966 INDEX. Page COMMON REPUTE— See Character. As hearsay 166 COMMUNICATIONS — See Privileged Communications. COMPARISOSNS— Of handwriting 436 COMPETENCY — Of acts and delcarations of conspir- ators 42 Of declarant making dying declaration 243 Of evidence, see Relevancy. Of witnesses, see Witnesses. COMPETENT EVIDENCE— Defined 6 COMPLAINTS— Of victim as relevant proof of offense. 80 COMPLETENESS — Of entries in account books 255 COMPROMISE— Offer of compromise inadmissible ...207 CONCEALMENT— As evidence of guilt 76 CONCLUSIONS OF WITNESS— See Opinion Evidence. Making dving declaration 240 CONCLUSIVE EVIDENCE— Defined 6 Judgment as 347 CONCLUSIVE PROOF— Defined 15 CONCLUSIVE PRESUMPTION— See Presumptions. CONDITION PRECEDENT— Parol proof of 657 CONDUCT— As evidence of guilt 72, 73 Estoppel by 738 CONFEDERATES— In crime, see Conspiracy. CONFESSION— Defined 209-212 Cautioning accused : 232 Statutes construed 212 Of co-defendants 213 Corroboration 213 Proof of corpus delicti prerequisite 214 Burden of proof 216 Preliminary questions 217, 227 Proof 217 Weight and sufficiency 218 Inducement 218, 223 Threat or promise 218, 224 Voluntary character 218-221 Involuntary character 223 Third degree 225 Discovery of evidence through 226 Upon promise of secrecy 231 Obtained by deception 231 Obtained when drunk 231 Without warning 231 Talking in sleep 231, 232 Upon oath 228-230 — On preliminary examination 229 —On former trial 229 — At inquest 230 INDEX. 967 Page CONFESSION— (Continued). — Before grand jury 230 Warning accused 231 CONFIDENTIAL COMMUNICATIONS— See Privileged Communications. CONFRONTING ACCUSED— Rule inapplicable to dying declaration 234 CONGRESS— Judicial notice of proceedings 481 CONNECTED FACTS— Irrelevancy of unconnected facts 115-154 CONSCIOUSNESS OF IMMINENT DEATH— Prerequi- site to dying declaration 236 CONSIDERATION— Want or failure of consideration provable by parol 649 CONSPIRACY — Acts and declarations of conspirators. 42-50 Confessions of conspirators 213 CONSTRUCTION— Aider by parol evidence 651-688 Of document, defined 672 CONSULS — Certificate of vice-consul as evidence 326 CONTEMPORANEOUS AGREEMENT— Provable by parol 652 CONTINUING FACT— Presumption of 737 CONTRACTS— See Documentary Evidence; Oral Evi- dence. CONTRADICTION— Of dying declaration 244 Of witness 878 Inconsistent statements 880, 889 Own witness 882 CONVERSATION— See Declarations. COPIES— As evidence 581, 605-613 Printed copies 622 Of entries in bank books 345 CORONER — Verdict of coroner's jury as hearsay 161 CORPORATIONS— Corporate books and records as evidence 329 Judicial notice of acts of 489 CORPUS DELICTI— Proof prerequisite to admission of confession 214 CORRESPONDENCE— See Letters. CORROBORATION— Of confession 213 By hearsay 164 When required 834 Accomplice 834 — By another accomplice 837 Divorce case 838 Perjury or bribery 838, 839 Prosecutrix in sexual offense 838 Claimant against estate 846 CORROBORATIVE EVIDENCE— Defined ... 6 968 INDEX. COST — Original cost as proof of value 131 COUNTIES — Record of proceedings of supervisors 328 COURSE OF BUSINESS— Relevancy of evidence showing 154 Presumption of regularity of 733 CREDIBILITY— Testing credibility of witness 874 CROP— See Agriculture. Valuation of 131, 133 CROSS-EXAMINATION— Scope 857 Collateral inquiry 860 Extent 862 Extraneous matters 862 Discretion of court 863 Re-cross examination 864 Leading questions 865 Questions permitted 869 CUMULATIVE EVIDENCE— Defined 7 CUSTOMS AND USAGE— Parol proof of 664 Custom in dealing with others irrelevant 135 Established custom as negativing negligent habit 156 Evidence relevant to establish 54 DAMAGES — Amount provable by opinion evidence .... 401 Evidence relevant to prove amount of 130-135 Physical examination of plaintiff 526-529 DATES— See Time. DAY BOOKS— See Account Books. DEAF MUTE— As witness 781 DEATH — Presumed from long absence 725 Proof by declarations or hearsay 291 Proof of probable duration of life 342 Of witness as ground for proving former testimony. 309 Sense of impending death prerequisite to dying dec- laration 236 DECEDENT— Declarations of, to prove identity 110 Relevancy of statements by persons since deceased. .233 DECLARATIONS — As to public and general rights or custom 274 As to boundaries 276 As to ownership 279 As to pedigree 283 As to legitimacy 292 Against interest 261 By testator as to contents of will 269 — Destroyed or revoked will 270 — Showing undue influence 271 Dying declarations 233-244 In course of business or personal duty 245 Made in person's presence 97 Of persons in possession of personal property 90 INDEX. 969 Page DECLARATIONS— (Continued) . Of persons in possession of land 88 To prove making or performance of contracts 86 Of decedent to prove identity 110 Of conspirators 42 Narrative of conspirator 49 Of persons since deceased 233 DEEDS— Ancient deeds 281 Record or copy of record as evidence 329 DEMEANOR— As evidence of guilt 72, 73 DEMONSTRATIVE EVIDENCE— Defined 8 Objects constituting 530 DEPOSITIONS— Dying declarations 232 Admissibility 939 Taken to perpetuate testimony 947 Taken under mercbant shipping act 949 DESIGN— See Intent. Relevancy of proof of facts showing 57, 69 DESIRE FOR MONEY— Relevancy of evidence of, in murder cases 63 DETECTIVE— Admissibility of confession obtained by, through deception 231 DIRECT EVIDENCE— Denned 8 DISCOVERY — Discovery of evidence through confes- sion 225 Physical examination of injured person 526-529 DISCRETION OF COURT— As to examination of wit- nesses 877 DISORDERLY HOUSE— Admissibility of reputation of house 461 DIVORCE— Acts of cruelty after suit 61 DOCTORS— See Opinion Evidence. Communications between doctor and patient 815 DOCUMENT— Defined 2 Ancient documents 281 Relevancy of evidence to prove genuineness of doc- uments produced 102 DOCUMENTARY EVIDENCE— In general 533 ilateral matters 535 Matters required to be written 536 Matters covered by writing 537 Information derived from writing 538 Judgments and judicial records 539 Payment of money 540 Testimony of one having actual knowledge of facts recorded 540 Primary evidence 541 Proof of execution 544 — By attesting witness 545-551 970 INDEX. Page DOCUMENTARY EVIDENCE— (Continued). Acknowledgment of instrument 552 Denial of execution by attesting witness 558 Proof of written instruments 559 Secondary evidence of contents 561-564 — Accounting for original 565 — Original in hands of adversary 566 — Original in hands of stranger 567 — Original out of jurisdiction 568 — Destruction or loss and search 571 — Diligence in search 574 — Original not movable 576 — Original a public document 577 — Record of instrument 577 — Certified copies 581 Notice to produce 584 — Original in possession of defendant 588 — When writing itself is notice 589 — Action presuming possession of adverse party.... 589 Proof of public documents 591 — Judicial records 591 — Production of document 594 — Examined copies 597 — Federal and state records 600 — Exemplifications 603 — Copies equivalent to exemplifications 604 — Certified copies 605 —Authority to certify 608-610 — Manner of certifying 611 — Certificate of particular facts 612 — Registers and documents certified 613 Foreign records and public documents 616 — Judicial records 617 — Miscellaneous records 620 Officially printed copies 622 —Statutes 622 — State papers 623 — Proclamations 623 — Foreign laws 625 Presumption as to documents 626 ■ — Date and place of execution 627 —Stamps 628 — Seal and delivery of deed 628 — Execution 630 — Ancient deeds 631 — Alterations •. 633 Exclusion of oral by documentary evidence 637 — Parol evidence rule 641 — Matters provable by parol, see Oral Evidence. INDEX. 971 DOCUMENTARY EVIDENCE— (Continued) . Census records 326 Licenses 326 Certificates 326 Legislative journals 327 Proceedings of city council 328 Entries in account books 247-258 Public documents 317 State Papers 318 Offilial registers 319 Surveys 322 Assessor's books 323 Inquests of lunacy or death 326 Corporate books and records 329 Registers of conveyances 329 Certificate of acknowledgment 332 — Registration 334 —Defective 336 Church register 336 Histories, maps and charts 338 Unauthorized records 337 Scientific treatises 339 Medical works 339 Private maps 341 Market reports 341 Mortality tables 342 Mercantile reports 344 Rules and time tables 344 Time tables 344 Duty to introduce document demanded and produced on notice 937 Refusal to produce document demanded bars right to introduce it 938 Privileged documents 821-823 DRUNKARDS— Effect of intoxication on admissibility of confession 231, 232 DURATION OF LIFE— Proof of probable duration 342 DURESS — Admissions made under duress 207 DYING DECLARATIONS— Discrediting 922 Competency of declarant 243 Admissibility 233 Consciousness of impending death 236 Expectation or hope of recovery 23S Manner and form 241, i Time intervening before death 238 Information of physician 238 Ratification of former declaration 239 Subject-mutter and relevancy 239 Prosecutions in which admissible 972 INDEX. DYING DECLARATIONS— (Continued). Questions 242 Persons as to whom admissible 243 Preliminary inquiry 243 Contradiction and impeachment 244 Proof of declaration 244 Weight as evidence 244 Impeachment 244 EMERGENCY — Evidence of acts of others in similar emergency 134 EMOTION — Relevancy of declaration showing 299 ENTRAPMENT — Competency of confession obtained by detective through deception 231 ENTRIES IN BOOKS— Admissibility 246 ESCAPE OF ACCUSED— Relevancy of proof of 75 ESTOPPEL— By judgment 355 Effect of judgment not pleaded as estoppel 43 By conduct 738 By neglecting duty , 751 Of tenant 756 — Exceptions to the rule 759 Of licensee 762 Of vendee 762 Of acceptor of bill 765, 770 Of bailee 766, 767 Of agent 769 EVIDENCE— Defined 2, 3 EXAMINATION OP WITNESSES— In chief 852 Questions by court 854 Exclusion of witness 856 Recalling witnesses 857 Cross-examination 857 — Collateral inquiry 865 —Extent 862 Re-examination 864 Leading questions 865 — On direct examination 867 — Discretion of court 868 Questions on cross-examination 871 — Impeachment 871 - — Testing accuracy 874 — Showing bias 876 EXCLUDING WITNESS— During trial 856 EXECUTORS AND ADMINISTRATORS— Admission by.188 Administration of estate of living person 730 EXEMPLIFICATIONS— As evidence 603 EXERCISE OF RIGHT— As relevant evidence of right to property 52 EXPECTANCY— Carlisle tables as evidence of 342 INDEX. 973 EXPECTATION OF DEATH OR RECOVERY— Of per- son making dying declaration 238 EXPERIMENTS— And tests as evidence 135 EXPERT TESTIMONY— See Opinion Evidence. EXPLANATIONS— Relevancy of 80 Facts necessary to explain or introduce relevant facts as relevant 102 Of admissions 176 EXPRESSION OF PAIN— See Res Gestae. FABRICATING TESTIMONY— As evidence of guilt 78 FACT— Defined 2 Relevancy of facts forming part of same transaction. 27-41 FACT OF CONSPIRACY— Proof of 49 FACTS IN ISSUE— Phrase defined 16 Relevancy 21 FAMILY HISTORY— Proof of 290 FAMILY RESEMBLANCES— Provable by opinions. .. .406 FEELING— Declarations showing 299 FINANCIAL RATING — Mercantile reports as evi- dence of 344 FIRES — Relevancy of evidence of other fires 128 FLIGHT OF ACCUSED— Relevancy of proof of 75 FOOTPRINTS— As evidence 109, 111 FOREIGN JUDGMENT— As evidence 390 Full faith and credit 390 Want of jurisdiction 390 Fraud 391 FOREIGN LAWS— Judicial notice of 478 Provable by opinion evidence 403 Provable by experts 411 FORMAL REQUISITES— Of dying declarations 241 FORMER CONVICTION— As proof of guilt or guilty knowledge 137, 138 FORMER TESTIMONY— Death or absence of witness. .309 Identity of parties ■ 310 Identitl of issues 312 Preliminary proof 312 Mode of proving 313 Relevancy of evidence given in former trial 306 Nature of proceeding 308 FOUNDATION— See Laying Foundation. FRAUD — Effect on judgment as evidence and right to prove fraud in judgment 388 — Foreign judgment 392 In obtaining confession 231 Other acts of fraud relevant to show system 152 Provable by oral evidence 645 GEOGRAPHY — Judicial notice of geographical facts.. 491 GIFTS — Declarations showing intent to make 85, 86 974 INDEX. GOOD CHARACTER— See Character. Of accused 453 GOOD FAITH— Relevancy of evidence showing 137 GOVERNMENT — Judicial notice of governmental mat- ters 484 — Political subdivisions 485 Privilege of witness to refuse to disclose state secrets. 802 GRAFTING — Evidence that others contributed 152 GRANTORS— Admissions by 181, 182 GUARDIANS— Admission by 188 HABIT — Relevancy of evidence of 54 Of vicious dog 135 HANDWRITING — Proof by experts 434-436 Standard of comparison 437 HEARSAY— In general 159 Defined 9 Complaints of inured person 160 Contents of writing 161, 162 Certificate of discharge from army • 161 Verdict of coroner's jury 161 To prove age 163, 166 To prove ownership 163 To prove partnership 163, 164 Affidavits as 164, 165 Newspaper article 164 Telegrams 164 Telephone conversations 164 Testimony at inquest 164 Death provable by 165 Declarations of third party 165 Boundaries not provable by declaration of surveyor. 165 Letter as 165 Reputation 166 Rumors 166 HEARSAY EVIDENCE— Defined 9 HISTORICAL EVENTS— Proof of 281 Judicial notice of 491 HISTORICAL WORKS— As evidence 339 HOMICIDE — Activities of accused 64 Relevancy of proof of adultery or meretricious rela- tions 67 Subsequent conduct of accused 71 Threats and quarrels 65 Character of deceased 459 Dying declarations as evidence of cause of death.233-244 Threats by deceased 69 Verdict of coroner's jury as hearsay 161 HOPE OF RECOVERY — As affecting admissibility of dying declaration 238 INDEX. 975 Page HUSBAND AND WIFE— Admissions by 199 As witnesses 785-794 Confidential communications between 796-799 HYPOTHETICAL QUESTIONS— To experts 423 IDENTITY — Declarations showing 293 Presumption of identity of person from identity of names 108 Relevancy of evidence establishing 108 IDENTITY OF ISSUE — Relevancy of evidence to estab- lish 102 IMBICILITY— See Insanity. IMPEACHMENT— See contradiction. Of witness 871-922 IMPENDING DEATH— Sense of imminent death pre- requisite to dying declaration 236 IMPROPER EVIDENCE— Effect of admission of 951 INCEST — Evidence of other acts of intercourse 66, 146 INCOMPETENT EVIDENCE— Defined 10 Effect of admission of 951 INCRIMINATING TESTIMONY— Witness may refuse to give 823-833 INDICTMENT— As impeachment 904 INDUCEMENTS— Confession obtained by 219-223 INNOCENCE — Presumption of 705 INQUEST — Statements of witness at. as hearsay 164 INQUISITORIAL CONFESSION— Confession obtained by third degree methods 225 INSANITY— Burden of proving 702 Presumed to continue 737 Competency of insane witness 779 Opinion evidence to prove 399 INSPECTION— See Physical Examination. Of entries in books of bank 346 INTENTION— Of. testator proved by his declaration. . .273 Proof by other similar transactions 141 Relevancy of acts showing 137 Relevancv of proof of facts showing 57. 61) INTERLINEATION— See Alteration. INTOXICATION— Effect on confession 232 INVOLUNTARY CONFESSION -Obtained by promises. threats or third degree methods 223-225 JOINT ADVENTURERS— Admissions by 201 JOURNAL ENTRIES— See Account Books. JOURNALS — Legislative journals as prima facie evi- dence . 327 JUDGE— Defined 1 Judicial notice of acts of 486 JUDGMENT— Defined 347 Conclusive proof of legal effect 347 976 INDEX. Page JUDGMENT— (Continued). Legal effect 348 Conclusive as between parties and privies 352 Conclusiveness 354 Nature of action or decision 355 Nature of decision 356 Estoppel by 355 Scope of inquiry 357 Matters concluded 357 Matters actually determined 359 Matters which might have been litigated 360 Matters determined by general finding 363 Different causes of action 363 Defenses neglected 363 On part of cause of action 364 Grounds of judgment 365 Questions for court 366 Statements of fact in 366 Not pleaded as estoppel 368 Must be pleaded 369 Irrelevant as to strangers 371 Conclusiveness of facts inferred from udgment 372 Persons concluded by 375 — Parties and privies 376 — Representatives 378 — Government and officers 378 — Persons not parties 379 — Citizens successively suing 380 — Assignees ■ 380 — Principal and surety 380 — Prior mortgagee 380, 382 — Prior grantee or contractor 380 — Subsequent grantee 381 —Trustee and beneficiary 381. 382 — Landlord and tenant 382 — Administrator and heir 382 — Corporations and stockholders 383 — Judicial officers 383 — Fraud, collusion or want of jurisdiction prov- able 384-389 Foreign judgment 390 —Full faith and credit 390 — Want of jurisdiction 390 —Fraud 392 JUDICIAL ADMISSIONS— In general 173 By attorney 173 In pleadings 174 JUDICIAL NOTICE— Facts noticed 472-478 Admitted facts 503, 505 INDEX! 977 Page JUDICIAL NOTICE— (Continued). Foreign laws and relations 478 Domestic laws and treaties 479 Federal laws and treaties 479 Legislative proceedings 481 City ordinances 482 Laws of sister state 482 Governmental matters 484 Political subdivisions 485 Powers and duties of officers 485 Official acts 485 Judicial acts and proceedings 486 Important corporations 489 Occupations 490 Customs and usages 490 Historical facts 491 Statistical facts 491 Geographical facts 491 Words and abbreviations 493 Drugs and poisons 493 Art and science 494 Skill 494 Time 495 Matters commonly known 495 Method of acquiring 500 JURISDICTION— Impeaching judgment for want of 384 — Foreign judgment 391 .J TRY — Competency of jurors as witnesses. . : 805 KNOWLEDGE — Judicial notice of matters of common knowledge 495 Other transactions as proving 14r> Showing knowledge as prerequisite to admission of proof of motive 68 LANDLORD AND TENANT— Estoppel of tenant 75« Judgment against tenant as evidence against land- Ion! 382 LANGUAGE Judicial notice of English language 493 LARCENY Possession of stolen property L37 LATENT AMBIGUITY— Orol evidence to explain LAYING FOUNDATION— For impeachment of Wit- ness 85G For introduction of dying declaration jr. For Introduction of evidence given in former pro- ceeding 312 For proof of confession LM7, 227 Prerequisite to Introduction of dying declaration .... 243 LEADING QUESTIONS On cross-examination 365 On direct examination 867 978 INDEX. Page LEADING QUESTIONS— (Continued). Discretion of court 868 LEDGERS— See Account Books. LEGISLATIVE ACT— See Statutes. Recitals in . as evidence 317 LEGISLATIVE JOURNALS— Admissible as prima facie evidence of recitals 327 LEGISLATURE— Judicial notice of proceedings of 481 LEGITIMACY— Declarations showing 292 Presumption of 721 LETTER— As hearsay 165 Presumption of delivery of letter mailed 155 LETTERS ROGATORY— See Depositions. LIBEL AND -SLANDER— Relevancy of proof of sub- sequent repetition of defamatory words 67 Good character of defendant not provable 450 Other similar words provable to show malice 147 LICENSES— Estoppel of licensee 762 Marriage license as evidence 327 LIFE— Presumptions relating to 725, 730 LIFE TABLES— See Carlisle Tables. LOCATION— See Place. LOCOMOTIVES— See Fires. LOST INSTRUMENT— Proof of 571 Presumptions in favor of lost grant 731 LOST WILL — Declarations of testator as to con- tents 269-273 MAIL — Presumption of delivery of mail in regular course 155, 157 MALICE — Relevancy of evidence showing 137 MALICIOUS PROSECUTION— Character of plaintiff provable 450 MAPS— As evidence 281 Private maps 341 MARKET REPORTS— As evidence 341 MARRIAGE— License as evidence 327 Proof by declarations of decedent 291 MASTER AND SERVANT— Proof of reasonable value of services 132 Rules of master as evidence 344 MEANING OF WORDS— Parol evidence to explain. . .676 MEDICAL SCIENCE— Subject of expert testimony 419 MEDICAL WORKS— As evidence 339 MEMORANDUM — Right of witness to use to refresh memory 923 Requisites of 928-935 Made under direction of witness 928 Made by others 929 Use in evidence 934 INDEX. 979 MEMORY OF HEARERS— To prove former testimony. 315 MENTAL CONDITION— Relevancy of evidence show- ing 146 Relevancy of declaration showing 297-299 MERCANTILE REPORTS— As evidence 344 MERETRICIOUS RELATIONS— Relevancy of proof of 67 MINES — Certificate of assayer as proof of values of ore. 161 MINORS— See Infants. MISTAKE— Parol proof of 647 MONEY — Relevancy of evidency of possession by vic- tim or desire by accused 63 MORTALITY TABLES— As evidence of probable dura- tion of life 342 MOTIVE— See Intent. Proof by other similar transactions 141 Relevancy of proof of facts supplying 57- 59 MUNICIPALITIES— See Cities. MUTILATIONS— Of account book offered in evidence. .256 NAMES — Presumption of identity of persons and names. 108 NARRATIVE— Of conspirator 49 NATIONALITY— Proof by hearsay 166 Proof by reputation 166, 167 NEGATIVE— Burden of proving 700 NEGATIVE EVIDENCE— Defined 10, 11 NEGLIGENCE — Evidence of acts of others {n same emergency 134 Other accidents or injuries irrelevant 127 Other acts of negligence 129 Physical examination of injured person 526-529 Repair of defective appliance as evidence of 73 NEIGHBORING CONDITIONS— Irrelevant to prove local defect 135 NEWSPAPER — Photos and articles as hearsay...' 164 NOMINAL PARTIES— Admissions by 180 NOTICE— To produce documents 584 NUMBER OF WITNESSES— In prosecution for treason.840 Limiting 841 In prosecution for perjury 842 OATHS OF WITNESSES— Necessity 845, 849 By whom administered 846 Form of oath 846, 847 Waiver of irregularities 849 OBSTRUCTION OF EVIDENCE— Relevancy of proof of 78 OFFICERS— Admissions by 199 Relevancy of evidence to show that person held office.154 Presumption that officer did his dutv 156 OPINION EVIDENCE— Generally relevant 393 Nature of 394 Grounds for admission 396 980 INDEX. OPINION EVIDENCE— (Continued). Sanity or insanity 399 Value and amount of damages 401 Foreign law 403 Ownership 404 Miscellaneous matters 405 Source of knowledge 408 Marriage, opinion as to existence of 439 Grounds of opinion relevant 442 — Grounds of expert opinion 443 Opinions of person making dying declaration 240 Expert testimony 411 — Science and art 411, 419 — Grounds of admission 414 — Qualifications of expert 414 — Scope of examination 428 — Testing knowledge 428 — Preliminary questions 428 — Facts bearing on opinions of experts 430 — Cross-examination 431 — Reading scientific works on cross-examination 432 — Handwriting experts 433 — Comparison of handwriting 436 — Standard of comparison 437 —Grounds of opinion 443 — Hypothetical questions 423 — Basis of opinion 425 ORAL EVIDENCE— General rule 507 Must be direct 507 Facts seen 508 — Diagrams and maps 509 ■ — Photographs — X-Ray sciagraphs 513 Facts heard 514 Telephone conversation 515 Language interpreted to witness 516 Source of knowledge 517 Identification 520 Opinion of witness 521 Conclusions and impressions 524 Intent and knowledge 524 Excluded by documentary 637 Parol evidence rule 641 Matters provable by parol 643 — Writing incomplete 644 —Fraud 645 —Mistake 647 —Bad faith .647 —Illegality 647 INDEX. 981 ORAL EVIDENCE— (Continued). — Want or failure of consideration 649 — Delivery 650 — Acceptance 651 — Alterations and additions 651 — Incapacity to contract 651 — Effect of instrument 651 — Abandonment of contract 651 — Separate oral agreement 652 — Constituting condition precedent 657 — Subsequent oral agreement 661 — Custom or usage 664 — Legal effect not intended 666 — To explain legal relation 667 —Title or office 669 — Collateral matters 670 — Explaining ambiguity 672, 681 — Meaning of words 676 Scientific, art and trade terms 679 Defective and unmeaning phrases 680 — Latent ambiguity 682 — Two consistent interpretations 683 — Relation of words to facts 685 — Extrinsic facts 686 — Identification of subject 687 — Intention of party 688 Parties bound by the rule 692 — Parties to instrument 693 — Obligor and payee 693 — Obligor of negotiable note 694 Method of taking 849 ORDER OF PROOF— Order of introduction of testi- mony 855 ORDINANCES — City ordinances as evidence 328 ORIGINAL ENTRIES— See Entries. ORIGINAL EVIDENCE— See Primary Evidence. OTHER ACCIDENTS— Relevancy of proof of 127 OTHER FIRES— Relevancy of evidence of 128 OTHER OFFENSES— Irrelevancy of proof of discon- nected distinct crime 123 Showing motive 125 Showing commission of offense charged 125 Relevancy of proof of 68 Relevant to show system 147-152 OTHER SALES— Irrelevant to prove value 130 OWNERSHIP— Declarations as to 279 Proof by hearsay 163 Provable by opinion evidence 404 Presumption as to 736 982 INDEX. OWN WITNESS— Contradicting or impeaching 882 PAIN— Exclamation of 303 Statements of past pain 305 PARDON — Record of pardon as evidence 317 PARENTAGE— See Pedigree. Evidence relevant to prove 112 PARENT AND CHILD— See Infants. Admissions of child binding parent 199 PAROL EVIDENCE— See Oral Evidence. PARTIES— Concluded by judgment 375 Who may make admissions 178 — Parties of record 179 — Nominal parties 180 — Interested parties 180 —Grantors 181, 182 — Privies 181 — Seller of personalty 185 — Ancestor 186 — Insured 187 — Guardian 188 —Trustee 188 — Executor or administrator 188 —Agents 190-199 — Principal and surety 200 —Partners 201 — Joint adventurers 201 — Ppersons jointly interested 202 — Strangers 205 — Persons referred to 206 PARTNERSHIP — Admissions of partners binding firm. 201 Hearsay evidence to prove 163, 164 PART OF SAME TRANSACTION— Relevancy of facts forming 29 PASS BOOK— As evidence 254 PASSION— See Emotion. PATENT AMBIGUITY— Oral evidence to explain 681 PATERNITY — See Parentage; Pedigree. PAYMENT— See Receipts. PEDIGREE— Declarations as to 282 — Death of declarant 287 — Relationship of declarant 287 — Matters asserted 290 PHOTOGRAPH— As evidence 109, 509 X-Ray sciagraphs 513 PHYSICAL EXAMINATION— Of injured person seek- ing damages 526-529 PHYSICIAN — Advising operation as hearsay 165 Declaration inadmissible to prove physical condition. 163 INDEX. 983 Page PHYSICIAN— (Continued). Privileged communications between physician and patient 815-817 PICTURES— See Photographs. PLACE — Relevancy of evidence of facts fixing time or place 112 PLEADINGS— Admissions in 174 As evidence 173 Former adudication must be pleaded 369 POLYGAMY— Other acts of intercourse 66 PLEAS— As evidence 173 POSSESSION — Declarations of persons in possession of property S8, 90, 165 Of money by deceased as showing motive 63 Relevancy of evidence to prove right to 52 POSTOFFICE— Presumption of delivery of mail in reg- ular course 155, 157 PREDICATE— See Laying Foundation. For dying declaration 243 PREPARATION— Relevancv of proof of 57, 70 PREPONDERANCE— Denned 698 Sufficient to establish alibi 702 PRESUMPTION— Defined 15 Arrival and departure of train 156 As to documents offered in evidence 626-633 — Ancient deeds 631 Delivery of mail 155, 157 Innocence 705 Legitimacy 721 — Rebuttal 723 Death from absence 725 — Time of death 72;i Survivorship 735 Lost grant 731 Regularity 733 Ownership and title 7,ii; ellaneous matters 737 Relevancy of proof of 65 Threats by deceased i;:i, 711 Supporting or rebutting inference suggested by facta in evidence im; 1 ,,7 d bis duty PRESUMPTIVE EVIDENCE Defined " 1- PRIMA FACIE EVIDENCE— Defined 12 PRIMARY EVIDENCE— Defined 13 PRINCIPAL AND SURETY— Admissions by 200 PRIVATE WRITINGS— See Documentary Evidence. PRIVIES— Admissions by 181 984 INDEX. Page PRIVILEGED COMMUNICATIONS— Between husband and wife 796 — When not confidential 797 — In presence of third person 798 —By letter 798 — Termination of relation 799 Privilege of judge 799 Privilege of attorney 799 Attorneys at witnesses 801 Official communications 802 Affairs of state 802 As to commission of offense 803 Between attorney and client 803 — After termination of relation 811 — Attorney acting for both parties 811 — Illegal matters 812 — Presence of third person 812 — Scrivener or drawer of will 812 — Production of papers 813 — Waiver of privilege 814 — Privilege of client 815 Physician and patient 815-817 Priest and parishioner 816 Privileged documents 821 PRIVILEGED DOCUMENTS— Witness cannot be com- pelled to produce 821-823 PRIVILEGE OF WITNESS— To refuse incriminating testimony 823 — Tendency of show crime 827 — Production of books and papers 827 — Compulsory identification 829 — Claiming privilege 830 — Immunity from prosecution 830 — Waiver of right 831 — Determination of privilege 833 PROMISES— Confession obtained by 219-223 PROOF— Defined 14 PROPERTY RIGHT— Evidence relevant to prove 52 PUBLIC DOCUMENTS— Statements in 317 QUANTUM MERUIT— Evidence to prove reasonable - value of services 132 QUARRELS— Relevancy of proof of 65 QUESTIONS TO WITNESSES— Leading questions 865 On cross-examination 871 RAILROADS — Relevancy of proof of other accidents or fires 127,128 Rules as evidence 344 Time tables as evidence 344 INDEX. 985 Page RAPE— Appearance and condition of victim 95 Complaint of victim as relevant evidence 92 Details of complaint 94 Delay in making complaint » 95 Condition, appearance and demeanor of victim 95 Evidence of other acts of intercourse 147 Character of prosecutrix 462, 917 — Reputation for chastity 918 RATIFICATION— Of previous statement as dying dec- laration 239 RATING — Mercantile reports as evidence 344 RATIONAL PROBATIVE VALUE— Prerequisite to competency 17 REAL EVIDENCE— Objects constituting 530 REASONABLE DOUBT— Defined 699 State need not prove guilt beyond 699 Alibi and insanity need not be proved beyond. .702, 703 REBUTTAL— Of impeaching testimony 916 Rebutting inference suggested by facts in evidence. .107 RECEIPTS— As evidence 540 RECORDS— As evidence 539, 591 RE-EXAMINATION— Of witness 864 REFRESHING MEMORY— Of witness 923 Necessity of failure of recollection 926 Independent recollection 92S Requisites of memoranda 928-935 Inspection of memoranda 936 REGISTERS— Official registers as evidence 319 REGULARITY— Presumption of 733 RELATIONSHIP— See Pedigree. Relevancy of proof of 66 RELEVANCY— Defined 17, 18 In general 23 Facts bearing on opinions of experts 429 Facts necessary to explain or introduce relevant facts 102, 105 Facts necessary to show relevancy of other facts. . . .114 Similar but unconnected facts 115 Of opinion evidence 393 Of acts and declarations of conspirators 42 Of proof of title or right to property 52 Of custom or habit 54 Of dying declaration 329 RELIGIOUS BELIEF— Effect on dying declaration ...922 REMOTE EVIDENCE— As irrelevant 21 REPUTATION— See Character. Inadmissible as hearsay 166 RESEMBLANCE— Family resemblances provable by opinions 406 986 INDEX. Page RES GESTAE— In general 33- 41 Defined 34 Spontaneous exclamations 33 Bj^tander's exclamation 34 Concurrence with principal transaction 35 Statements accompanying acts 100 RULE- — Placing witness under rule 856 RULES— As evidence 344 RUMORS— As hearsay 166 SALES — Admissions by seller of personalty 185 SANITY— Opinion evidence to prove 399 SCIAGRAPHS— As evidence 513 SCIENCE — Judicial notice of scientific facts 494 Scientific books as evidence 281, 339 Subject of expert testimony 411 SECONDARY EVIDENCE— Defined 13 Of contents of writing 561-584 SECRETS — See Privileged Communications. SEDUCTION— Evidence of other acts of intercourse.66, 146 SEISIN— See Ownership. SEPARATE AGREEMENT— Provable by parol 652 SELF INCRIMINATION— Privilege of witness to re- fuse to give incriminating evidence 823-833 SENSE OF IMPENDING DEATH— Prerequisite to dying declaration 236 SEXUAL INTERCOURSE— See Adultery and other sexual offenses. Proof of parentage by showing 112 SHIFTING OF BURDEN— In civil and criminal cases 710, 715 SHORTHAND NOTES— To prove former testimony. . .313 SIDEWALKS — Irrelevancy of proof of other accidents from defects in 127 SIMILAR OCCURANCES— Relevancy of similar but unconnected facts 115 SIMILAR TRANSACTIONS— To show intent or motive.141 SLEEP — Admissibility of confession uttered while sleeping 231,323 SPONTANEOUS EXCLAMATIONS— Relevancy ...33,34 STATEMENTS— See Declarations. Relevancy of statements made in presence of accused 80 STATE PAPERS— As evidence 318 STATE SECRET— As privileged communications 802 STATISTICS— Judicial notice of 491 STATUTES— Judicial notice of 479 STENOGRAPHIC NOTES— To prove former testimony.313 STOCK EXCHANGES— Market reports as evidence. . .341 STOLEN DOCUMENTS— As evidence 13 STRANGERS — Admissions or statements as evidence. 205 INDEX. 987 Page SUBSEQUENT CONDUCT— Relevancy of proof of. . .57, 71 SUBSEQUENT THREATS— Effect on confession 225 SUGGESTIVE QUESTIONS— See Leading Questions. SUMMARIES— Of contents of account books 255 SURVEYS— As evidence 322 SURVIVORSHIP— Presumption of 730 SWINDLING — Other similar acts 124 SYSTEM— Relevancy of proof of facts showing. . .147-152 TABLES— As evidence 342-344 TAXATION — Assessed valuation to prove value 133 TECHNICAL BOOKS— As evidence 339 TELEGRAPHS AND TELEPHONES— Presumption of delivery of message 156 Telegrams as hearsay 164 Telephone conversation as hearsay 164 TEMPERATURE— Proof by records of weather bureau. 112 TESTS — And experiments as evidence 135 THIRD DEGREE— Confession obtained by 225 THREATS— Confession obtained by 224 TIDE TABLES— As evidence 344 TIME— Judicial notice of 495 Between making of dying declaration and death of declarant 238 Of making entries in account books offered in evi- dence 255 Relevancy of evidence of facts fixing 112 TIME TABLES— As evidence 344 TITLE— See Ownership. Hearsay to prove 163 TRADE JOURNALS— As evidence of market quo- tations 342 TRADES— Judicial notice of 490 TRANSACTION— Denned 29 Relevancy of facts forming part of same transaction 29 TREATIES— Judicial notice of 479 TRUSTEES— Admissions by 188 UNCONNECTED FACTS- Similar but unconnected facts irrelevant 115 UNCONTRADICTED STATEMENTS— As evidence ... 97 UNDUE INFLUENCE— Confession obtained by... 223-226 Declarations of testator showing L'71 VALUE — Other independent sales as evidence of 130 Cost as proof of 131 Provable bv Opinion evidence 401 VITAL STATISTICS— As evidence !336 VOICE — Proving identity by recognition of Ill VOLUNTARY CONFESSIONS— In general 219 Before officers 223 WARNING ACCUSED— Before taking confession !..!.232 988 INDEX. WEIGHT OF EVIDENCE— Not affecting admissibility. 24 WHITE SLAVERY — Declarations of persons conspiring to procure girls 47 WILLS — Declarations of testator as to contents of will. 269 . Declarations of testator showing existence or non- existence 273 WITHOUT PREJUDICE— Admissions made without prejudice 207 WEIGHT OF EVIDENCE— Admissions 203 Confessions 218 Dying declarations 244 Effect of impeachment on 916 WITNESSES— Attempt to influence as evidence of guilt 78 Competency in general 773 — Criminal cases 784 — Of person making dying declaration 243 —Of jurors 805 — of grand jurors 806 Confidential communications, see Privileged Com- munications. Excluding during taking of testimony 856 Incompetency 776 — Age of witness 777, 781 — Mental disease 779 —Deaf mute 781 — Religious belief 781 — Discretion of court 782 Examination 852 —By court 856 — Placing under rule 856 — Recalling witness 857 — Person making dying declaration 242 Cross-examination 857 —Extent 862 Re-examination 864 Expert witnesses 411 — Qualification 414 — Examination 428 — Hypothetical questions 423 Husband and wife in criminal cases 785 — Existence of legal marriage 786 — Marriage after offense 786 — Offenses against each other 787 Husband and wife in civil cases 790 — When interest is joint 792 — Matters of agency 793 — Sexual offenses, adultery 794 Communications between husband and wife 796 — When confidential 797 INDEX. 989 Page — In presence of third person 798 —By letter 798 — After termination of relation 799 Impeaching and contradicting 871, 878 — Own witness 882 — Laying foundation 885 — Inconsistent statements 889 Impeaching credit 892 Impeaching accused 893 Indictment as impeachment 904 Conviction of crime as impeachment 907 Knowledge of impeaching witness 910 Number of witnesses 840-842 Privileged communications, see Privileged Communi- cations. Oath of witness 845 — By whom administered 846 —Form of 847 — Waiver of irregularities 849 Privilege to refuse to give incriminating testi- mony 823-833 Refreshing memory 923-930 —Memoranda 928-936 Reputation for truth and veracity 895 Moral character 896 Leading questions 865 — On direct examination 867 — Discretion of court 868 Moral character 896 Survivor's testimony 773 WRONGFULLY OBTAINED EVIDENCE— Admissibil- ity and competency 13 X-RAY SCIAGRAPHS— As Evidence. YEAR— See Time. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. MAR 2 5 1972 Form L9- Series 4989