UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 
 ANALYTICAL TABLES 
 
 OF THB 
 
 LAW OF EVIDENCE 
 
 FOR USE WITH 
 
 STEPHEN'S DIGEST OF THE LAW OF EVIDENCE 
 
 BY 
 
 GEORGE M. DALLAS, LL.D., 
 
 AND 
 
 HENRY WOLF BIKLE', A.M., LL.B. 
 
 PHILADELPHIA : 
 
 T. &. J. W. JOHNSON & CO. 
 1903.
 
 D/fc/S a. 
 
 I 30j 
 
 COPYRIGHT, 1903, 
 EY 
 
 T. & J. W. JOHNSON & Co.
 
 In the preparation of the following Tables the effort 
 has been made to present a methodical outline of the Rules 
 of Evidence, as set forth in Stephen's Digest. Primarily 
 they are designed for the use of students, but the busy 
 practitioner may occasionally find it convenient to refer to- 
 them. 
 
 The general purpose of the accompanying notes is merely 
 to make the Tables more nearly complete and readily intelligi- 
 ble. Where they depart from the text of the Digest, or extend 
 beyond it, they are but suggestive; and the suggestions made 
 are not fully discussed, nor the authorities in their support ex- 
 haustively cited. 
 
 The references, where not otherwise indicated, are to the 
 Articles of Stephen's Digest of the Law of Evidence. The 
 notes occasionally referred to, are those contained in the 
 Second American Edition (from the sixth English edition) with 
 annotations and references to American cases, by George 
 Chase, LL.B.
 
 TABLE OF CONTENTS. 
 
 IN THREE PARTS. 
 
 FIRST PART. RELEVANCY. 
 
 TABLE 
 
 RULES CONCERNING RELEVANCY I-XXIII 
 
 I 
 
 Of Inclusion i-vm 
 
 I 
 
 I Applicable generally I III 
 
 j> Any fact in issue I 
 
 ^ Facts relevant to any fact in issue .... I 
 
 > Res Gestae II 
 
 ^ Facts necessary to be known Ill 
 
 Applicable specifically IV VIII 
 
 Where there is a question whether any act 
 
 was done by any person IV 
 
 Where a person's conduct is in issue, or is 
 
 relevant IV 
 
 I Where the existence of a conspiracy is in 
 
 issue, or is relevant V 
 
 Where a right of or over property is in 
 
 question vr 
 
 Where the existence of any custom is in 
 
 question VII 
 
 Where the proceeding is a criminal case of 
 
 rape VTii 
 
 ^ Of Exclusion ix-xxm 
 
 \ Facts not connected with any fact in issue ... IX 
 
 V
 
 TABLE 
 
 } Hearsay x 
 
 Admissions xi 
 
 Confessions XII 
 
 S tat cm cuts of persons since deceased . . . xm 
 
 Evidence previously given xiv 
 
 ' Statements of Acts of State or of facts of a 
 
 public nature XV 
 
 Statements made for public reference . . . xvi 
 
 Statements of general history or geography xvn 
 
 } Statements contained in a book of original 
 
 entry xvm 
 
 ^ Judgments xix 
 
 Opinion xx 
 
 Of experts xxi 
 
 Of others as to whether two persons are or 
 
 are not married xxi 
 
 . Character xxn 
 
 I Exceptions in criminal and in civil cases 
 
 respectively xxni 
 
 !
 
 SECOND PART ON PROOF. 
 
 TABLE 
 
 RULES CONCERNING PROOF XXIV-XXXIV 
 
 v Proof otherwise than by evidence . xxiv 
 
 I 
 
 f By judicial notice xxv 
 
 ^ By agreed admissions xxvi 
 
 proof by evidence xxiv 
 
 By oral evidence xxvn 
 
 * By documentary evidence xxvm 
 
 Proof of execution of documents .... xxix 
 
 Proof of contents of documents xxx 
 
 Proof of contents of public documents . . xxxi 
 
 ( Presumptions as to documents xxxn 
 
 Of the exclusion of oral by documentary 
 
 evidence xxxm 
 
 By real evidence xxxiv
 
 THIRD PART PRODUCTION AND EFFECT OF EVIDENCE. 
 
 TABLE 
 
 RULES CONCERNING THE PRODUCTION AND EFFECT 
 
 OF EVIDENCE XXXV-XLIII 
 
 - The Burden of Proof xxxv 
 
 Affected by presumption xxxvi 
 
 Affected by estoppel xxxvn 
 
 ' Persons not competent to testify xxxvm 
 
 Persons not compellable to testify .... xxxix 
 
 I- Persons not permitted to testify XL 
 
 j 
 
 > Taking oral evidence in Court or out of 
 
 Court, upon oath, etc XLI 
 
 Examination of witnesses XLII 
 
 New trial when not granted for improper 
 
 admission or rejection of evidence XLIII
 
 FIRST PART. 
 
 RELEVANCY. 
 
 iz
 
 TABLE I. 
 
 First Rule of Inclusion. [Applicable generally.] Art. 2. 
 
 EVIDENCE MAY BE GIVEN 
 
 Of any fact in issue. 1 
 
 Of any fact relevant to any fact in issue.* 
 
 1 If the issue be a triable one, evi- 
 dence of the existence or non-existence of 
 any fact in issue may always be given. " 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 be- 
 cause it would pain some one who is a 
 stranger to the action." S. Dig., Note II. 
 
 *For definition of the word " relevant " 
 see Art. 1. In this rule it is affirmed 
 broadly that evidence may be given of any 
 fact which is relevant. The Tables which 
 follow relate to the relevancy or irrele- 
 vancy of particular facts. 
 
 The distinction indicated by Stephen, 
 between facts which are relevant or 
 irrelevant, and facts which are deemed to 
 be the one or the other, will not be re- 
 garded in any of these Tables. What is 
 deemed by the law is, in the study of the 
 law, to be accepted as unquestionable. 
 The proviso of Art. 2 really modifies the 
 definition of relevancy (Art. 1) ; for any 
 fact which is " too remote to be material" 
 which furnishes but a fanciful analogy 
 or conjectural inference (1 Taylor Ev., Sec. 
 298-239), may, practically speaking, be 
 said to be irrelevant.
 
 TABLE II. 
 
 Second Rule of Inclusion. [Applicable generally.] Arts. 3, 8. 
 EVIDENCE MAY BE GIVEN 
 
 Of facts which form part of the same transaction 
 as the facts in issue. 1 
 
 Of facts which form part of any fact which may 
 be proved. 8 
 
 i The last paragraph of Art. 3 is omitted 
 from this Table, because the decisions 
 cited by Stephen, though they support its 
 statement of the law, do not appear to be 
 founded on the doctrine of rea gestce. 
 Jones v. Williams, 2 M. & W., 326 ( 1837) ; 
 Doe v. Kemp, 2 Bing. N. C., (29 Eng. 
 C. L, 102), (1835). See Table IX, note 2. 
 
 1 The first paragraph of Art. 8 is here 
 brought into association with Art. 3, in 
 order more fully to present the res gestce 
 rule. The principle, which Art. 3 applies 
 only to facts in issue, is qualifiedly extended 
 by that paragraph of Art. 8 to any act which 
 may be proved ; but it is thought that for 
 the word " act " in Art. 8, the word " fact " 
 may properly be substituted, and that the 
 doctrine of ret gestce is applicable to evi- 
 
 dential facts as well as to those in issue 
 although where the main fact is merely a 
 provable one the admissibility of other 
 facts as subsidiary to it is subject to special 
 limitation. Art. 8 and Note V. It is 
 requisite only that there shall be "some 
 main fact or act, which is itself admissible 
 in evidence." Lund . Tyngsborough, 9 
 Gush., 44, (1851). "Where any facts 
 are proper evidence upon an issue, all oral 
 or written declarations which can ex- 
 plain such facts may be received in evi- 
 dence." Wright v. Doe, 4 Bing. N. C., 
 548 (33 Eng. C. L., 852), (1838). " De- 
 clarations which are the immediate accom- 
 paniments of an act are admissible as part 
 of the res gestcR." Wharton Ev., Sec. 
 262. See Note to Table III.
 
 TABLE III. 
 
 Third Rule of Inclusion. [Applicable generally.] Art. 9. 
 
 EVIDENCE MAY BE GIVEN 
 
 facts which are necessary to be known and in 
 so far as they are necessary to be known. 1 
 
 To iniroditce or explain any fact in issue or relevant to the issue. 
 To support or rebut an inference suggested by any such fact. 
 
 To establish the identity of any person or thing whose identity is 
 in issue or is relevant. 
 
 To fix the lime or place at which any fact in issue or relevant fact 
 happened. 
 
 To show that any document produced is genuine or otherwise. 
 
 >. To show the relation of the parties by whom any fact in issue or 
 relevant fact was transacted. 
 
 >. To show opportunity for the occurrence or transaction of any such, 
 fact. 
 
 To show the relevancy of other facts. 
 
 1 Article 2 states the general proposition poses enumerated in this Table are rele- 
 
 th at " evidence may be given . . . of any vant. In like manner, Arts. 3 and 8 
 
 fact relevant to any fact in issue." And (Table II) specify that facts which form 
 
 in this Article (9) we have the more part.ot the same transaction as the facts 
 
 particular statement that facts which are in issue, or of a provable fact, are relevant, 
 necessary to be known for any of the pur-
 
 TABLE IV. 
 
 Fourth Rule of Inclusion. [Applicable specifically.] Arts. 7, 8. 1 
 EVIDENCE MAY BE GIVEN 
 
 > When there is a question whether any act was 
 done by any person. Art. 7. 
 
 > Of any fact which supplies a motive for such an act. 
 Of any fact which constitutes preparation for it. 
 
 > Of any fact which shows subsequent conduct of such person ap- 
 parently influenced by the doing of it. 
 
 * Of any fact which shows any act done in concequence of the act 
 by, or by authority of, such person. 
 
 When a person's conduct is in issue or is relevant 
 to the issue. Art. 8. 
 
 I 
 
 ^ Of any statements made in the presence and hearing of such 
 person by which his conduct is likely to have been affected. 
 
 lf The obvious similarity of "a question duct." (Art. 8 last paragraph) has sug- 
 whether any act was done by any person " gested their joinder in this Table. 
 (Art. 7) to an issue as to "a person's con-
 
 TABLE V. 
 
 Fifth Rule of Inclusion. [Applicable specifically.] Art. 4. 
 EVIDENCE MAY BE GIVEN 
 
 ^ In cases in which the existence of a conspiracy is 
 in issue or is provable 
 
 ^ Of everything said, done, or written by any one of several 
 conspirator i in the execution or furtherance of their common pur- 
 pose as against each of them. 1 
 
 1 But statements as to measures taken 
 (i. e. narratives of things past) in the exe- 
 cution or furtherance of any such common 
 purpose (not in effecting it, but in conse- 
 quence of, or arising out of it, R. v. Blake, 
 6 Ad. & El., N. S., 137 (51 Eng. C. L.), 
 (1844) ,) are not relevant as such against any 
 
 conspirators, except those by whom or in 
 whose presence such statements are made. 
 The judge must first be satisfied apart from 
 such acts and statements, that there are 
 prima facie grounds for believing in the 
 existence of the conspiracy to which they 
 relate. Art. 4.
 
 TABLE VI. 
 
 Sixth Rule of Inclusion. [Applicable specifically.] Art. 5. 
 
 EVIDENCE MAY BE GIVEN 
 
 v In cases in which the existence of any right of or 
 over property is in question 
 
 > Of every fact which constitutes the title of the person claiming the 
 
 right. 1 
 
 > Of every fact which shows that he, or any person through whom he 
 
 claims, was in possession. 2 
 
 Of every fact which constitutes an exercise of the right, or which 
 shows that its exercise was disputed ; or -which is inconsistent 
 with its existence or renders its existence improbable. * 
 
 1 Facts in issue. See Table I. 
 
 existence, of the right the existence of 
 which is alleged upon the one side and de- 
 1 Facts relevant to the issue. Ibid. They nied on the other. See definition of re- 
 render probable the existence or the non levant. Art. 1. 
 
 11
 
 TABLE VII. 
 
 Seventh Rule of Inclusion. [Applicable specifically.] Art. 6. 
 
 EVIDENCE MAY BE GIVEN 
 
 In cases in which the existence of any custom is 
 in question 
 
 ^ Of every fact which shows how, in particular instances, the custom 
 was understood and acted upon by the parties then interested. * 
 
 l SeeBlackstoneCom., Book I (Share. burgh Ins. Co., 95 Pa. St., 348-356, 
 Ed.), 79, note 21 ; and Adams v. Pitta- (1880). 
 
 13
 
 TABLE VIII. 
 
 Eighth Rule of Inclusion. [Applicable specifically.] Art. 8. 1 
 EVIDENCE MAY BE GIVEN 
 
 v- In criminal cases of rape. 
 
 v Of the conduct of the person against whom the offence is said to 
 have been committed, and, in particular of the fact that soon 
 after the offence, she made a complaint (but not the terms 
 thereof ') to persons to whom she would naturally complain. * 
 
 1 Second paragraph. 
 
 'See, however, Note V., of Stephen's 
 Appendix, and also the note of the Ameri- 
 can Editor on the second paragraph of 
 Art. 8. 
 
 * And of her generally immoral charac- 
 ter, etc. See Art. 134, and note 4 to Table 
 XLII. 
 
 15
 
 TABLE IX. 
 
 First Rule of Exclusion. Art. 10. 
 
 EVIDENCE MAY NOT BE GIVEN 
 
 I 
 
 Of a fact which renders the existence or non- 
 existence 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 the rules of inclusion, 
 except in cases where some permissible infer- 
 ence relevant to the issue may be drawn from 
 such fact. 1 a 
 
 *The so-called exceptions to this rule 
 are not fully presented in Articles 11, 12 
 and 13 ; but the principle upon which 
 they all rest is here stated, and may be illus- 
 tratively indicated thus: The rule "Res 
 inter alias acta," etc., does not include any 
 fact from which a material inference is 
 permissible, as when there is a question 
 
 (a) Whether a person said or did some- 
 thing. The fact that he said or did 
 something of the same sort on a different 
 occasion, if it shows the existence on the 
 occasion in question of any state of mind 
 or of body or bodily feeling, the exist- 
 ence of which is in issue or is relevant. 
 Art. 11. 
 
 (b ) Whether an act was accidental or in- 
 tentional. The fact that such act formed 
 part of a series of similar circumstances, 
 in each of which the person doing the 
 act was concerned. Art. 12. 
 
 (c) Whether a particular act was done. 
 The fact that a course of office or busi- 
 ness existed according to which it natur- 
 ally would have been done. Art. 13. [It 
 is under this head that Taylor, in his 
 work, on Evidence (Chap. 12, Sees. 709- 
 
 641), mentions that in the United States 
 entries made by the party himself iu his 
 own shop books are, subject to well set- 
 tled restrictions and conditions, received 
 in evidence. We, however, deem it 
 more exact to treat the admission of such 
 entries as an exception to that part of 
 Hearsay Rule which excludes statements 
 contained in any book, etc., and accord- 
 ingly, it has been classed as one of the 
 exceptions to that rule, and is dealt with 
 in Table XVIII.]. 
 
 (d) Whether a particular person held a 
 particular public office. The fact that 
 he acted in that office. Art. 13. 
 
 (e) Whether one person acted as agent for 
 another on a particular occasion. The 
 fact that he so acted on other occasions. 
 Art. 13. 
 
 1 The decisions upon which the last par- 
 agraph of Art. 3 (See Table II. n. 1) 
 is based, seem not to be founded. on the 
 doctrine of res gestce, but upon the prin- 
 ciple stated above (n. 1), that the rule pre- 
 sented in this Table does not exclude any 
 fact from which a material inference is 
 permissible. 
 
 17
 
 TABLE X. 
 
 Second Rule of Exclusion. Art. 14. 
 
 EVIDENCE MAY NOT BE GIVEN 
 
 I 
 
 Of the fact that a statement was made by a 
 person not called as a witness. 1 
 
 Of the fact that a statement is contained or re- 
 corded in any book, document, or record what- 
 ever, proof of which is not admissible on other 
 grounds. 3 
 
 1 The exceptions to this part of the Hear- lf The exceptions to this part of the 
 Bay Rule are separately presented in Table* Hearsay Rule are separately presented in 
 XI, XII, XIII and XIV. Tables XV, XVI, XVH, XVIII and 
 
 XIX. 
 
 19
 
 TABLE XI. 
 
 First Exception to Second Rule of Exclusion. 1 Arts. 15-20. 
 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 I 
 
 ^Admissions 2 made on behalt of the real party to 
 any proceeding. 3 
 
 i 
 
 By any nominal party thereto.* 
 
 By any person who has a substantial interest in the event. 6 
 
 By any person who is privy in law, in blood or in estate to any party 
 to the proceeding. 6 
 
 By any agent authorized to make them, either expressly or by the 
 conduct of his principal* 
 
 1 Table X. 
 
 1 An admission is a statement, oral or 
 written, suggesting any inference as to any 
 fact in issue or relevant ... to any 
 such fact, made by or on behalf of any 
 party to any proceeding ; Art. 15. 
 
 8 An admission made at any time by the 
 real party himself is, of course, admissible, 
 unless he is suing or sued in a represen- 
 tative character only, in which case the 
 statement must have been made whilst he 
 sustained that character. Art. 16. State- 
 ments by strangers to a proceeding are 
 not relevant as against the parties ; but 
 see Art. 18. No admission is relevant in 
 any civil action if made without prejudice 
 or under duress. Art. 20. 
 
 * Where the assignee of a chose in action 
 may and does sue in his own name, he is 
 not aflected by statements of the assignor 
 made after assignment ; and the rule in 
 the United States seems to be generally the 
 same even where the assignee is required 
 to sue in the name of the assignor. 
 
 5 If made during the continuance of the 
 interest which entitles him to make it. 
 Art. 16. 
 
 6 Including partners and joint contractors, 
 with respect to partnership transactions, 
 or joint contracts ; and lawyers in the 
 actual management of their clients' causes. 
 Art. 17. And also any person expressly 
 referred to for information. Art. 19. 
 
 21
 
 TABLE XII. 
 
 Second Exception to Second Rule of Exclusion. 1 Arts. 21-24. 
 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 s Confessions 3 made without inducement, threat or 
 promise 3 proceeding directly or indirectly from 
 a person in authority, including 
 
 } The prosecutor. 
 
 ( Officers of justice having the prisoner in custody. 
 Magistrates, and other persons in similar position*. 
 
 i Table X. 
 
 ' A confession is an admission made at 
 any time by a person charged with a crime 
 stating or suggesting the inference that 
 he committed that crime ; Art. 21. 
 
 s Having reference to the charge against 
 the accused person, and giving him reason- 
 able grounds for supposing that by making 
 a confession he would gain some advantage 
 or avoid some evil in reference to the 
 proceedings against him. A confession 
 
 made after the complete removal of the 
 impression produced by any inducement, 
 threat or promise is provable ; and facts 
 discovered in consequence of confessions 
 improperly obtained, and so much of such 
 confessions as distinctly relates to such 
 facts, may be proved. Art. 22. As 
 to confessions admissible though made 
 upon oath, etc., see Art. 23 ; or though 
 obtained by promise of secrecy, or by decep- 
 tion, etc-, see Art. 24. 
 
 23
 
 TABLE XIII. 
 
 Third Exception to Second Rule of Exclusion. 1 Arts. 25-31. 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 S Statements a written or verbal of facts in issue or 
 relevant to the issue, if the person who made 
 the statement 3 is dead. Art. 25. 
 
 When the declaration was as to the cause of the declarant's death t 
 or as to any of the circumstances of the transaction which resulted 
 in his death. * Art. 26. 
 
 When the declaration was made in the ordinary course of the 
 declarant's business, or in the discharge of a professional duty. 6 
 Art. 27. 
 
 When the declaration was opposed to the pecuniary or proprietary 
 interest of the declarant. 9 Art. 28. 
 
 When the declaration was as to the declarant's testamentary inten- 
 tions, or as to the contents of his will. 7 Art. 29. 
 
 When the declaration related to the existence of any public or 
 general right or custom or matter of public or general interest. 6 
 Art. 30. ' 
 
 When the declaration related to the existence of any relationship 
 between persons, whether living or dead, or to the birth, marriage, 
 or death of any person, by which such relationship was con- 
 stituted, or to the time or place at which any tuch fact occurred, 
 or to any fact immediately connected with its occurrence. 9 Art. 31. 
 
 i Table X. 'Hereafter called the "declarant." 
 
 1 Hereafter called " declarations." Such declarations may be contradicted, and 
 
 24
 
 the credit of the declarant may be im- 
 peached or confirmed, in the manner 
 stated in Art. 135. 
 
 * Only in trials for the murder or man- 
 slaughter of the declarant ; and only when 
 he is shown to have been in actual danger 
 of death, and to have given up all hope of 
 recovery at the time of making the declara- 
 tion. Art. 26. 
 
 6 Such declarations must have been made 
 at or near the time when the matter stated 
 occurred, and of the declarant's own 
 knowledge; and are relevant in so far only 
 as they relate to the matter which the 
 declarant stated in the ordinary course of 
 his business or duty. Art. 27. 
 
 6 If the declarant had peculiar means of 
 knowing the matter stated, and had no 
 interest to misrepresent it. The whole of 
 any said declaration, and of any other 
 statement referred to in it, is relevant, 
 although matters may be stated which 
 were not against such interest; but state- 
 ments not referred to in, or necessary to 
 explain, such declarations, though made at 
 the same time, or recorded in the same 
 place, are not relevant. Art. 28. For 
 special applications of this Article, see its 
 paragraphs following the first. The final 
 one but repeats, in negative form, that the 
 interest of the declarant to which the dec- 
 laration is opposed must be a pecuniary or 
 proprietary one. 
 
 7 In the following cases : 
 
 (a) When his will has been lost, and there 
 is a question as to what were its contents. 
 
 (6) When the question is whether an ex- 
 isting will is genuine or was improperly 
 obtained. 
 
 (c) When the question is whether any and 
 
 which of more existing documents than 
 one constitute his will. In all these 
 cases it is immaterial whether the decla- 
 rations were made before or after the 
 making or loss of the will. Art. 29. 
 8 Such declarations may be made in any 
 form and manner. Art. 30. They must 
 have been made before the question to 
 which they are related had arisen, but they 
 may have been made to prevent its arising. 
 Art. 31. Declarations as to particular 
 facts from which the existence of any such 
 right or matter may be inferred are irrele- 
 vant. Art. 30. Declarations as to public 
 rights are relevant whoever made them. 
 As to general rights it must appear or be 
 shown that the declarant had competent 
 means of knowledge. A public right, and 
 a general right or custom denned. Art. 30. 
 'Such declarations may express either 
 the personal knowledge of the declarant, or 
 information given to him by others, pro- 
 vided those others were themselves quali- 
 fied to be declarants. They may be made 
 in any form and in any document or upon 
 any thing in which statements as to rela- 
 tionship are commonly made. Art. 31. 
 Pedigree must be in issue. [But see In- 
 surance Co. v. Rosenagle, 77 Pa., 507 
 (1875)]. The declarant must be legitim- 
 ately related by blood [or marriage, Tay- 
 lor Ev., Sec. 635-571 ; Ins. Co. . 
 Schwenck, 94 U. S., 598 (1876) ], to the 
 person to whom the declaration rela es, or 
 to the husband or wife of such a person. 
 Such declarations must have been made 
 before the question to which they are re- 
 lated had arisen, but they may have been 
 made to prevent iu arising. Art. 31. 
 
 25
 
 TABLE XIV. 
 
 Fourth Exception to Second Rule of Exclusion. 1 Art. 32. 
 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 Evidence given by a witness in a previous pro- 
 ceeding, or in* an earlier stage of the same 
 proceeding. 
 
 When the witness is dead, or is mad, or it so ill that he will probably 
 never be able to travel. 
 
 When he is kept out of the way by the adverse party. 
 When he w out of the jurisdiction of the Court. * 
 When he cannot be found. 8 
 
 Provided, in all cases, that the person against whom the 
 evidence is to be given had the right and opportunity 
 to cross-examine the declarant \vhen he was examined 
 as a witness ; and that the questions in issue were 
 substantially the same in the first as in the second 
 proceeding. 
 
 Provided, in civil cases, that the proceeding was between 
 the same parties or their representatives in interest. 
 
 Provided, in criminal cases, that the same person ia 
 accused upon the same facts. 
 
 i Table X. 
 
 * In civil, but not, it seems, in criminal 
 cases. Art. 32. 
 
 Perhaps in civil, but not in criminal 
 cases. Ibid. 
 
 These notes ( 2 and 3 ) are in the 
 words of Stephen, but, as is remarked 
 
 by his American Editor in a note to 
 this article, there is much difference of 
 decision by the courts of the several States 
 upon the general subject of the disabilities, 
 other than the death or insanity of the 
 witness, which will admit his former testi- 
 mony. See the cases there cited. 
 
 27
 
 TABLE XV. 
 
 Fifth Exception to Second Rule of Exclusion. 1 Art. 33. 
 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 I Statements of any act of state or of any fact of 
 a public nature which is in issue or relevant. 
 I 
 
 | When made in a recital contained in a public statute, 
 y When contained in any proclamation of the Executive. 
 
 [When contained in State papers communicated by the Executive to 
 the Legislature, or published under public authority. 
 
 When contained in legislative journals or resolutions ' 
 
 law, the note of the Editor, which refers 
 
 1 Table X - to Gr. Ev. 1, Sec. 491, and to several re- 
 
 * In adapting this article to American ported cases, has been followed. 
 
 29
 
 TABLE XVI. 
 
 Sixth Exception to Second Rule of Exclusion. 1 Art. 34. 
 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 v Statements of facts in issue or relevant, made 
 for the purpose of being referred to by the 
 public. 
 
 ^ When contained in any record, official book or register kept in the 
 United States, or in any country subject to the jurisdiction thereof t 
 or at sea, or in any of the States, or in any foreign country- * 
 
 > Provided the entry thereof was made in proper time by 
 a person in the discharge of a duty imposed upon 
 him by the law of the place in which such record, 
 book or register is kept. 
 
 1 Table X. from only for the purpose of adapting his 
 
 J The text of Stephen has been departed statement of the law to this country. 
 
 31
 
 TABLE XVII. 
 
 Seventh Exception to Seconu Rule of Exclusion. 1 Art. 35. 
 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 ^ Statements as to matters (a) of general history, 
 or (b) of geography, in issue or relevant to the 
 issue. 
 
 (a) When made in accredited historical books * 
 
 (7>) When made in maps or charts published for public sale. * 
 
 i Table X. * Only as to matters of public notoriety, 
 
 1 But statements in such works as to and such as are usually represented in such 
 
 private rights or customs are irrelevant. maps or charts and likely to be accurately 
 
 Art. 35. stated. Ibid. 
 
 33
 
 TABLE XVIII. 
 
 Eighth Exception to Second Rule of Exclusion. 1 (Inserted.) 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 L Statements contained in a properly authenticated 
 book of original entries. 2 
 
 When they consist of entries of goods sold and delivered. 8 
 When they consist of entries of work done 3 
 
 1 Table X. 
 
 'See American Editor's note to Art. 27, 
 and cases cited. The form or name of the 
 book is immaterial, if it be in fact a book 
 of original entry. Hoover t;. Gehr, 62 
 Pa., 136 (1869); and entries promptly 
 made from a blotter, from memorandum 
 slips, or from a slate, are to be considered 
 original, Barker v. Haskell, 9 Gush. 218 
 (1852). The authorities are not harmon- 
 ious as to the time within which the en- 
 tries must be made from the memorandum 
 slips, etc. In Forsythe v. Norcross, 5 
 Watts, 432 (1836), entries were held inad- 
 missible where it appeared that they had 
 been transcribed from a slate, four, five or 
 six days after they had been made ; while, 
 on the other hand, they have been held 
 admissible where the transcribing was done 
 
 four weeks after they had been made on 
 a slate; Hall v. Glidden, 39 Me., 445 
 (1855); Redlich r. Bauerlee, 98 Ills., 
 134 (1881). 
 
 8 The entries must be made at or near 
 the time, but not before, the delivery of the 
 goods, or the doing of the work ; Laird v. 
 Campbell, 100 Pa., 165 (1882). They 
 may have been made by the party himself 
 in his own book, and are admissible, 
 although he be living at the time of the 
 trial. But when he is a competent witness 
 the book is regarded as merely supplement- 
 ary to his own testimony; Nichols v. 
 Haynes, 78 Pa., 174 (1875). The amount 
 for which such an entry is admissible must, 
 it is said, be reasonable, but no precise 
 limit has been established j Corr v. Sellers, 
 100 Pa., 169 (1882). 
 
 35
 
 TABLE XIX. 
 
 Ninth Exception io Second Rule of Exclusion. 1 Arts. 39-47. 
 THE HEARSAY RULE DOES NOT EXCLUDE 
 
 I 
 
 Judgments 3 of the Courts of the United States, 
 or of any of the States or Territories, or of the 
 District of Columbia, or 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 enforced. 3 
 
 They are conclusive proof 
 
 Of any state of things which they actually effect, when 
 the existence of the state of things so effected is a 
 fact in issue or is relevant. * Art. 40. 
 
 Of facts directly in issue in the case in which the judg- 
 ment was rendered, actually decided by the Court, 
 and appearing from the judgment itself to he the 
 ground on which it was based. 5 Art. 41. 
 
 Of the facts on which the condemnation of a ship as 
 prize is plainly stated upon the face of the sentence of 
 the Court of Admiralty to have proceeded. 6 Art. 42. 
 
 ^ Of the facts stated in the judgment, 7 when any action 
 is brought against any person for anything done by 
 him in a judicial capacity. 8 Art. 45. 
 
 are evidential. 
 
 If not pleaded by way of estoppel.9 Art. 43. 
 If the judgment is an admission. 10 Art. 44. 
 
 > If it relates to a matter of public or general interest so 
 as to be a statement under Article 30. (See Table 
 XIII.) 10 Art. 44. 
 36
 
 1 Table X. 
 
 2 "Judgment" here means any final 
 judgment, order or decree, as to which the 
 party against whom it is offered as evi- 
 dence does not prove that the court which 
 gave it had no jurisdiction, or that it has 
 been reversed, or, if he is a stranger to it, 
 that it was obtained by any fraud or col- 
 lusion, to which neither he nor any per- 
 son to whom he is privy was a party. 
 Arts. 39 and 46. 
 
 8 In Hilton v. Guyot, 159 U. S., 113 
 (1895), the general subject of the effect to 
 be given to judgments, domestic or foreign, 
 was quite fully considered, and a number 
 of questions pertaining thereto were elabo- 
 rately discussed by the Supreme Court of 
 the United States. The decision, however 
 the judgment there involved being a per- 
 sonal and executory one, rendered by a 
 French Court was made to turn upon the 
 fact that the courts of France do not accord 
 conclusive effect to judgments of the courts 
 of this country ; and it was held (four jus- 
 tices dissenting) that because of this lack 
 of "reciprocity," a judgment of a French 
 Court would not be given such effect in 
 the United States. See also Ritchie v. 
 McMullen, 159 U. S., 235 (1895). 
 
 4 As against all persons. Art. 40. 
 
 6 As against parties and privies. Art. 
 41. Stephen adds to this statement : " Un- 
 less 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,'' 
 citing R. v. Hutchins, L. R..5Q. B. D., 
 353 (1880) as a recent illustration of this 
 principle ; but Hilton v. Guyot, 159 
 U.S., 113, casts some doubt upon its ac- 
 ceptance, at least in all cases, by the courts 
 of this country. In the opinion of the 
 court in that case (p. 204) it was said : " It 
 is next objected that in those courts one 
 of the plaintiffs was permitted to testify 
 nat under oath, and was not subjected to 
 cross-examination by the opposite party, 
 and that the defendants were, therefore, 
 deprived of safeguards which are by our 
 law considered essential to secure honesty 
 and to detect fraud in a witness ; and also 
 that documents and papers were admitted 
 in evidence, with which the defendants 
 
 had no connection, and which would not 
 be admissible under our system of juris- 
 prudence. But it having been shown by 
 the plaintiffs, and hardly denied by the 
 defendants, that the practice followed and 
 the method of examining witnesses were ac- 
 cording to the laws of France, we are not 
 prepared to hold that the fact that the 
 procedure in these respects differed from 
 that of our own courts is, of itself, a suffi- 
 cient ground for impeaching the foreign 
 j udgment. ' ' 
 
 6 As against all persons. But statements 
 contained in judgments other than those 
 of courts ot Admiralty condemning a ship 
 as prize, as to the facts upon which the 
 
 judgment is based are irrelevant as be- 
 tween sti angers, or as between a party or 
 privy and a stranger. Art. 42. 
 
 7 And the proceedings antecedent thereto. 
 Art. 45. 
 
 8 Whether the facts therein stated 
 are or are not necessary to give the 
 defendant jurisdiction, if, assuming them 
 to be true, they show that he h:id jurisdic- 
 tion. Art. 45. 
 
 As between parties and privies, when- 
 ever any matter which was or might have 
 been decided in the action in which it was 
 given is in issue, or is relevant, in any 
 subsequent proceeding. Art. 43. Stephen 
 adds: "Such a judgment is conclusive 
 proof of the facts which it decides or might 
 have decided, if the party who gives evi- 
 dence of it had no opportunity of pleading 
 it as an estoppel;" but the American Edi- 
 tor correctly states that it is held in a 
 number of the States of this country that a 
 judgment is equally conclusive when given 
 in evidence, as if pleaded, even though 
 there was an opportunity to plead it ; and 
 to this eftect, see Southern Pac. R. R. v. 
 U. S., 168 U. S., 1 (1897), at page 59. 
 
 10 Even as between strangers. But judg- 
 ments are not relevant as rendering pro- 
 bable facts which may be inferred from 
 their existence, but which they neither 
 state nor decide, either as between stran- 
 gers, or as between parties and privies in 
 suits where the issue is different, or in 
 favor of strangers against parties or privies. 
 Art. 44. 
 
 37
 
 TABLE XX. 
 
 Third Rule of Exclusion. Arts. 48-54. 
 EVIDENCE MAY NOT BE GIVEN 
 
 * Of the fact that any person is of opinion that a 
 fact in issue, or relevant, does or does not 
 exist. 1 Art. 48. 
 
 'This is the rule, but it is subject to Stephen are connectedly presented in Table 
 several exceptions. Those mentioned by XXI and the notes thereto. 
 
 39
 
 TABLE XXI. 
 
 Exceptions to Third Rule of Exclusion/ Arts. 49-54. 
 
 THE RULE THAT OPINION IS GENERALLY IRRELEVANT DOES 
 NOT EXCLUDE 
 
 The opinions of persons specially skilled in any 
 matter of science or art 3 as to which there is a 
 point in question. Art. 49. 
 
 ^ The facts that two persons there being a ques- 
 tion whether they are or are not married co- 
 habited and were treated by others as man and 
 wife. 3 Art. 53. 
 
 i Table XX. 
 
 J Such persons are called experts, and 
 the opinions to which they testify are 
 called expert testimony. 
 
 The judge in each instance decides 
 whether the witness is entitled to be con- 
 sidered as an expert. His opinion as to 
 the existence of the facts on which his 
 opinion is to Le given is irrelevant. Art. 
 49. But facts properly proved, though 
 not otherwise relevant, if they support or 
 are inconsistent with his opinion, are 
 relevant Art. 50. And the grounds on 
 which the opinion of any living person 
 (when relevant) is based are also relevant. 
 Art. 54. 
 
 When there is a question as to a foreign 
 law, the opinion of experts, who in their 
 profession [or who, though not of the pro- 
 
 fession, are, by reason of special study or 
 experience] acquainted with such law are 
 the only admissible evidence thereof; but 
 they may produce books of authority, etc. 
 The words "science or art " as here used, 
 include, indeed, all subjects on which a 
 course of study or experience is necessary 
 to the formation of an opinion, and amongst 
 others the examination of handwriting. 
 Art. 49. The opinion of any person 
 (though not an expert) who is acquainted 
 with the handwriting of the supposed 
 writer of any document, that it was or was 
 not written or signed by that person 
 is relevant ; and as to what is deemed suffi- 
 cient to constitute acquaintance with the 
 handwriting of another person, see Art 51. 
 The law respecting the comparison of hand- 
 writings is, in Pennsylvania, established by 
 
 40
 
 statute. Act of May 15, 1895, P. L. 69. In cutions for bigamy, proceedings for divorce, 
 
 the Courts of the United States and of actions of crim. con., etc.; but, whilst 
 
 several of the States, where this has not Stephen has been followed in presenting 
 
 been done, the rule differs in one or more this principle as an exception to the rule 
 
 particulars, from the English rule as stated excluding opinions it is submitted that it 
 
 by Stephen. In some of the States, how- is not the opinion of witnesses as to the 
 
 ever, the English rule is followed. Art. 52. existence of marriage, but their testimony 
 
 3 It is well settled that proof of cohabi- to the facts of cohabitation and repute, 
 
 tation and of repute unitedly, do raise a which give rise to the presumption, 
 presumption of marriage, except in prose- 
 
 41
 
 TABLE XXII. 
 
 Fourth Rule of Exclusion. Arts. 55-57. 
 EVIDENCE MAY NOT BE GIVEN 
 
 V Of the fact that a person respecting whose con- 
 duct there is any inquiry, is of a particular 
 character. 1 Art. 55. 
 
 1 The exceptions to this rule are connectedly presented in Table XXIII and the 
 notes thereto 
 
 43
 
 TABLE XXIII. 
 
 Exceptions to Fourth Rule of Exclusion. 1 Arts. 56, 57. 
 
 THE RULE THAT CHARACTER IS GENERALLY IRRELEVANT 
 DOES NOT EXCLUDE 
 
 1 
 
 In criminal proceedings 
 
 i 
 
 The fact that the person accused has a good character. 9 
 
 In civil cases (generally) 
 
 I 
 
 { The fact that the character of any party to the action is such as to 
 affect the amount of damages which he ought to receive. 3 
 
 1 Table XXII. 
 
 1 But the fact that he has a bad char- 
 acter is irrelevant, unless it is itself a fact 
 in issue, or unless evidence has been given 
 that he has a good character, in which case 
 evidence that he has a bad character is 
 admissible. The word " character," as 
 here used, means reputation as distin- 
 guished from disposition, and evidence may 
 be given only of general reputation not 
 of particular acts. Art. 56. 
 
 8 In some civil, as well as criminal cases, 
 the character (reputation) of a party is an 
 
 obviously material subject of inquiry, and 
 where this is so, evidence therof is, of 
 course, admissible. In actions for seduc- 
 tion and the like, it has repeatedly been 
 held that evidence of the woman's reputa- 
 tion for lack of chastity may be given ; 
 and in actions for defamation and for mali- 
 cious prosecution, in which the injury for 
 which redress is sought, is the reputation 
 of the plaintiff, evidence of his bad repu- 
 tation is, with manifest propriety, received 
 in mitigation of damages. See notes to 
 Art. 57. 
 
 45
 
 SECOND PART. 
 
 ON PROOF, 
 
 47
 
 TABLE XXIV. 
 
 First Rule Concerning Proof. 1 Arts. 58-92. 
 
 RELEVANT FACTS MAY BE PROVED 
 
 Otherwise than by evidence. 
 > Judicial Notice. Arts. 58, 59. 
 
 ^ Admissions agreed to at the hearing, or before the hearing and 
 with reference thereto, or by the pleadings. Art. 60. 
 
 By evidence. 
 
 f Oral Evidence. Arts. 61, 62. 
 I Documentary Evidence. Arts. 63-92. 
 Real Evidence (added). 
 
 1 This rule, like the first rule of relev- XXV; "Admissions agreed to," etc., 
 
 ancy (Table I), is stated in general terms. Table XXVI ; " Oral Evidence," Table 
 
 It leaves for more particular statement the XXVII; "Documentary Evidence," Ta_ 
 
 specific rules relating, especially, to each of bles XXVIII-XXXIII ; and "Real Evi- 
 
 the here indicated methods of proof. Ac- dence," Table XXXIV. 
 cordingly, see "Judicial Notice," Table 
 
 49
 
 TABLE XXV. 
 
 Second Rule Concerning Proof. Arts. 58, 59. 
 
 RELEVANT FACTS MAY BE PROVED 
 
 By judicial notice * 
 
 Of matter* relating to the governments of the United States 
 and of the States respectively. 
 
 The public law of the United States or of any State 
 whose law is applicable to the proceeding. 3 
 
 The political constitution and seal of the United States 
 and of the several States. 3 
 
 The accession, status and, in some instances, the signa- 
 tures of the principal officers of the United States and 
 of the several States. 4 
 
 ' The existence of Congress and of the State Legislatures, 
 and the respective times and places of their ses- 
 sions. 4 . 
 
 The public Executive proclamations and messages, and 
 the treaties of the United States. 5 
 
 The days of general political elections. 
 
 Of matters relating to the particular court or to other courts. 
 
 The particular court's own seal, rules, records and officers, 
 and the official status and signatures of those officers. 
 
 The existence of the other United States courts, the extent 
 of their jurisdiction, their seals and their judges. 8 
 
 The courts of last resort of the respective States. 7 
 60
 
 - Of matters relating to -foreign nations. 
 
 The Law of Nations. 
 
 The status of the United States with respect to foreign 
 countries, as of war, peace, amnesty, etc. 
 
 The existence and title of every State and Sovereign 
 recognized by the government of the United States, 
 and its government, system of courts, etc. 
 
 The public seals of recognized foreign states when at- 
 tached to public official documents, and the existence 
 and seals of their admiralty and maritime courts. 
 
 Of matters of a general character. 
 
 The chief geographical facts and features of the United 
 States and of the several States. 8 
 
 The occurrence of things which must have occurred 
 according to the ordinary course of nature. 
 
 > The general customs observed in the transaction of 
 business. 
 
 Matters of common knowledge and experience within 
 their jurisdiction, or of such general and public 
 notoriety that every one may be fairly presumed to 
 know them. 
 
 Matters which any statute of the United States requires 
 them to notice. 9 
 
 1 In adapting Articles 58 and 59 to the 
 law of this country, ihe American notes 
 have been generally followed. It would be 
 difficult, if not impossible, to present a list 
 of all things which should be judicially 
 noticed. Those mentioned in this Table 
 are amongst the more important. The 
 
 general principle upon which proof of 
 certain facts is dispensed with is that they 
 have been already authoritatively estab- 
 lished, or that they are of such character 
 that the Court's knowledge of them may 
 properly be assumed, or are so notorious 
 that everyone may fairly be supposed to 
 
 51
 
 know them. This principle may readily 
 be related to each of the several matters 
 enumerated in this Table, and maybe ap- 
 plied in determining, in each instance, 
 what others might properly be added to 
 the list. Tlie Table has been prepared 
 with especial reference to the Federal 
 Courts; the modifications necessary to 
 make it conform to the requirements of the 
 State Courts, are noted below. 
 
 J The State Courts do not judicially 
 notice the law of any other of the 
 States. 
 
 8 The State Courts require proof of the 
 constitution, as well as of the law, of the 
 other States. 
 
 4 The Plate Courts require proof of these 
 matters as respects the other Suites. 
 
 5 The State Courts judicially notic 
 executive proclamations, etc., of the 
 United States and of the particular State 
 itself, but not of the other States- 
 
 6 The State Courts judicially notice the 
 other Courts, etc., of the same State, and 
 of the United States, but not of the other 
 States. 
 
 7 Not applicable to State Courts. But 
 all Appellate Courts will take judicial 
 notice of the rules and methods of inferior 
 Courts when rendering their judgments. 
 
 8 To adapt to State Courts, substitute 
 for " and of the several States," the words, 
 " and of the particular State." 
 
 9 To adapt to State Courts, substitute for 
 the words " Statute of the United States," 
 the words, " Statute of the State." 
 
 52
 
 TABLE XXVI. 
 
 Third Rule Concerning Proof. Art. 60. 
 RELEVANT FACTS MAY BE PROVED 
 
 By admissions agreed to at the hearing, or before 
 the hearing and with reference thereto, or by 
 the pleadings. 1 
 
 J The difference between such admissions sive, whilst those dealt with in Table XI, 
 
 (sometimes called judicial or solemn ad- are merely evidential. In a trial for fel- 
 
 missions) and those which, notwithstand- ony, the prisoner can make no conclusive 
 
 ing the hearsay rule, are provable, is that admission, though a confession (Table XII) 
 
 the admissions here referred to are conclu- may be proved against him. Art. 60. 
 
 53
 
 TABLE XXVII. 
 
 Fourth Rule Concerning Proof. Art. 61, 62. 
 RELEVANT FACTS MAY BE PROVED 
 
 By oral evidence. 1 
 
 i All facts may be so proved, subject to 
 the requirements of law as to proof of 
 documents. (Tables XXVIII-XXXIII), 
 Art. 61. Oral evidence must iu all cases 
 whatever be direct ; that is to say, if it be 
 of a fact alleged to have been perceived by 
 any sense (ex gr. of sight or of hearing), 
 
 or in any other manner, it must be the 
 evidence of a witness who says he perceived 
 it by that sense or in that manner. If it 
 be of an opinion, or of the grounds on 
 which that opinion is held, it must be the 
 evidence of the person who holds that 
 opinion on those grounds. Art. 62. 
 
 55
 
 TABLE XXVIII. 
 
 Fifth Rule Concerning Proof. Arts. 63-92. 
 
 RELEVANT FACTS MAY BE PROVED 
 
 By documentary evidence. 1 
 
 i* 
 
 1 Several matters auxiliary to this rule, of public documents, Table XXXI ; Pre- 
 
 are separately presented as follows: Proof sumptions as to documents, Table XXXII, 
 
 of the execution of documents, Table and the parol evidence rule, Table 
 
 XXIX ; Proof of the contents of docu- XXXIII. 
 ments, Table XXX ; Proof of the contents 
 
 57
 
 TABLE XXIX. 
 
 First Auxiliary of the Fifth Rule Concerning Proof. 1 Arts. 66-69. 
 
 THE EXECUTION OF DOCUMENTS MUST BE PROVED a 
 I 
 
 1 Where there is an attesting witness alive, sane 
 and subject to process. 3 
 
 ^ By calling at least one such witness.*- 5 - * Art . 66. 
 
 Where there is one or more attesting witnesses, 
 but none who is alive and can be found. 3 
 
 *> By }>roof of the signature of at least one such witness. * ' 7 Art. 66. 
 
 L Where there is no attesting witness. 8 
 
 I 
 
 * By proof of the signature of the person who executed the document. 
 Art. 69. 
 
 1 Table XXVIII. 
 
 *This applies to all private documents. 
 For -methods of identification and proof of 
 genuineness of Public Documents, see 
 notes to Table XXXI. 
 
 8 The distinction made by Stephen be- 
 tween documents required by law to be at- 
 tested and documents not required by law 
 to be attested, is based upon English 
 statutory provisions which have not been 
 generally enacted in this country, though 
 similar statutes exist in some of the States, 
 and where they do, they of course must be 
 
 58 
 
 followed. But by the common law which 
 is still in force in most of the States, the 
 manner of proving the execution of a doc- 
 ument is made to depend upon the actual 
 presence, or absence, of attestation, and not 
 upon the existence or non-existence of any 
 requirement of law upon the subject ; and 
 to this common law rule, the present 
 Table conforms. 
 
 * But the person seeking to prove the 
 execution of a document is not bound to 
 call for that purpose either the party who 
 executed it or any attesting witness, or to
 
 prove the handwriting of any such party 
 or attesting witness. 
 
 (1) When (but see American note) an 
 admissible admission of its contents has 
 been proved, Art. 64 ; 
 
 (2) When (but see American note) he is 
 entitled to give secondary evidence of its 
 contents because the original is shown or 
 appears to be in the possession or power 
 of the adverse party, who, after notice, 
 does not produce it. (Table XXX) ; 
 
 (3) When his opponent produces it when 
 called upon, and claims an interest under 
 it in reference to the subject matter of the 
 suit; 
 
 (4) When the person against whom the 
 document 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 executed ; 
 
 (5) When the document is an " ancient " 
 one (see Table XXXII) Art. 67. 
 
 5 For cases to which this rule extends, 
 see Art. 66. 
 
 6 If the attesting witness denies or does not 
 recollect the execution of the document, 
 its execution may be proved by other evi- 
 dence. Art. 68. 
 
 'Stephen adds (Art. 66): " And that 
 the signature of the person executing the 
 document is in the handwriting of that 
 person," but generally in this country, 
 this is not requisite.
 
 TABLE XXX. 
 
 Second Auxiliary of the Fifth Rule Concerning Proof. 1 
 Arts. 63-65, 70-72. 
 
 THE CONTENTS OF DOCUMENTS- MAY BE PROVED 
 
 I 
 By primary evidence. 3 
 
 } The document itself. Art. 64. 
 
 } Each jtart of a document which is executed in several parts. Art. 64. 
 
 > Each counterpart of a document severally executed by one or some 
 of the parties only. * Art. 64. 
 
 Each of a number of documents all made by any process 6 which 
 secures uniformity in the copies. Art. 64. 
 
 . By secondary evidence. 2 
 
 Examined copies, exemplifications, office copies, and certified copies. 
 Art. 70. 
 
 Other copies made from the original and proved to be correct. Art. 70. 
 
 Counterparts of documents as against the parties who did not exe- 
 cute them. Art. 70. 
 
 Oral accounts of the contents of a document given by some person 
 who has himself seen it. Art. 70. 
 
 i Table XXVIII. The contents of documents must be 
 
 * For proof of contents of public docu- proved by primary evidence, except in the 
 
 raents, see Table XXXI. following cases, where secondary evidence 
 
 60
 
 may be given (Arts. 65, 71). When the 
 original 
 
 (a) is in the possession or power of the 
 adverse party, who, after due notice (see 
 below), does not produce it ; 
 
 (b) is in the possession or power of a 
 stranger not legally bound to produce it, 
 and who refuses to do so after service of 
 subpoena, etc. ; 
 
 (e) has been destroyed or lost, and proper 
 search has been made for it ; 
 
 (d) is of such a nature as not to be easily 
 movable, or is in a country from which 
 it is not permitted to be removed ; 
 
 (e) has been taken from the party by fraud, 
 so that it cannot be procured ; 
 
 (/) consists of numerous documents which 
 
 cannot conveniently be examined in 
 
 court, and the fact to be proved is the 
 
 general result of the whole collection ; 
 
 (g} is a document for the proof of which 
 
 special provision is made by statute ; 
 (h) is a public document. Art. 71. 
 
 In case (a) secondary evidence is not ad- 
 missible, unless reasonably sufficient notice 
 to produce the original has been given, 
 except in the following cases: (1) When 
 the document to be proved is itself a no- 
 tice; (2) When the action is founded upon 
 the assumption that the document is in the 
 possession or power of the adverse party, 
 and requires its production; (3) When it 
 appears or is proved that the adverse party 
 has secured possession of the original from 
 a person subpoenaed to produce it ; (4 ) 
 When the adverse party or his agent has 
 the original in court. 
 
 In case ( b) a subpoena duces tecum must 
 have been served; if a stranger who has 
 
 been so served, or who, after having been 
 sworn as a witness, admits that the docu- 
 ment is in court, refuses to produce it without 
 lawful justification, secondary evidence may 
 not be given. Arts. 71, 72. (See also, as 
 to notice to produce, etc. Table XLII, 
 note 1). 
 
 Case (e) is inserted by the American 
 editor and authorities are cited by him in 
 its support. 
 
 In case (/) evidence may be given as to 
 the general result of the documents by 
 any person who has examined them, and 
 who is skilled in the examination of such 
 documents. Art. 71.. 
 
 As to case (g) it is, of course, that where 
 there is a statutory provision prescribing 
 (or permitting) any special method of' 
 proving the contents of any document, 
 such provision must (or may) be followed. 
 Statutes of this kind are not uncommon ; 
 but they generally concern public docu- 
 ments (case h) and are more distinctly re- 
 ferred to in Table XXXI, which relates 
 especially to public documents. In all 
 cases, questions as to the existence of facts 
 rendering secondary evidence admissible 
 are to be decided by the judge, unless in 
 deciding such a question the judge would in 
 effect decide the matter in issue. Art. 71. 
 
 4 Each counterpart is primary evidence 
 as against the parties executing it. Art. 64. 
 
 6 E. g. by printing, lithography, or pho- 
 tography. Art. 64. 
 
 e Each is primary evidence of the con- 
 tents of the rest ; but where they are all 
 copies of a common original, no one of 
 them is primary evidence of the contents 
 of the original. Art. 64. 
 
 61
 
 TABLE XXXI. 
 
 Third Auxiliary of the Fifth Rule Concerning Proof. 1 Arts. 73-84. 
 
 THE CONTENTS OF PUBLIC DOCUMENTS MAY BE PROVED 3 
 I 
 
 r By production, from proper custody, and identifi- 
 cation of the original. 3 Art. 74. 
 
 - By an examined copy.* " Art. 75. 
 j> By an exemplification. 5 " Art. 77. 
 
 ^ By compliance with statutory provisions. 6 - 7 - Arts. 
 76, 79-82. 
 
 1 Table XX VIII. 
 
 8 Not strictly speaking, by secondary 
 evidence as indicated in Art 71 and in the 
 note to table XXX, which follows that 
 article, but in some one or other of the 
 several substituted ways which are here 
 stated. 
 
 s This is really primary evidence: The 
 contents of the document are proved by 
 production of the original ; though in- 
 stead of accompanying its production, as 
 in the case of a private document, with 
 proof of execution, it is to be shown that 
 it has com* from proper custody, and must 
 be identified as being what it professes to 
 be. Art. 74. And whenever any book or 
 other document is of such a public nature 
 as to be admissible in evidence on its mere 
 production from the proper custody, and 
 
 no statute exists which renders its contents 
 provable by means of a copy, any copy 
 thereof or extract therefrom is admissible 
 in proof of its contents, provided it pur- 
 ports to be signed and certified as a true 
 copy or extract by the officer to whose cus- 
 tody the original is intrusted. Art. 79. 
 
 4 An examined copy is a copy proved by 
 oral evidence to have been examined with 
 the original and to correspond therewith. 
 Art. 75. 
 
 6 An exemplification is a copy of a record 
 set out either under the Great Seal or 
 under the Seal of a Court. It is equiva- 
 lent to the original ; and a copy made by 
 an officer of the Court bound by law to 
 make it, is an exemplification ; but if such 
 officer is authorized by a rule of court, 
 but not required by law to make it, it is 
 
 62
 
 regarded as equivalent to an exemplifica- which prescribes (or permits) any par- 
 
 tion only in the same cause and Court. ticular method of proof, it must (or may) 
 
 Arts. 77, 78. be followed. Several such statutes, State 
 
 6 For mode of proof of foreign written and Federal, are referred to in Arts. 76, 79- 
 
 laws, acts of state and judicial records, 84; but it is not deemed desirable, and 
 
 see Art. 84. would scarcely be practicable to advert to 
 
 i As already remarked in the note to them with any particularity here. 
 Table XXX, where there is a statute 
 
 63
 
 TABLE XXXII. 
 
 Fourth Auxiliary of the Fifth Rule Concerning Proof. 1 
 
 Arts. 85-89. 
 
 IT IS PRESUMED 
 
 > When any document bearing a date has been 
 
 proved 
 
 ^ That the document was made on Hie day on which it bears date, and 
 if more than one bear the same date, that tJiey were executed in 
 the order necessary to effect their intended object. 9 Art. 85. 
 
 When any document is not produced after due 
 notice and call 
 
 ^ That the document had been duly stamped. * Art. 86. 
 
 When any document purporting to be a deed has 
 been signed and has a seal upon it 6 
 
 ^ TJiat this is the seal of the party signing it. 4 " Art. 87. 6 
 
 > When any document purporting or proved to be 
 
 thirty years old is produced from proper 
 custody 7 
 
 ^ That the handwriting of the signature and every other part of the 
 document is genuine, and in the case of a document executed* or 
 attested, that it was duly executed and attested. Art. 88. 
 
 . When any document produced appears to have 
 been altered or interlined 8 
 
 That the alterations or interlineations, if the document is a deed, 
 were made before the deed was completed. Art. 89. * 
 64
 
 I That the alterations or interlineations, if the document is a will 
 were made after the execution of the will. 1Q Art. 89. 
 
 Table XXVIII. 
 
 * But independent proof of the correct- 
 ness of the date will be required if the 
 circumstances are such that collusion as 
 to the date might be practised, and would, 
 if practised, injure any person, or defeat 
 the object of any laws. Art. 85. 
 
 8 Unless it be shown to have remained 
 unstamped for some time after its execu- 
 tion. Art. 86. 
 
 4 In a form recognized as valid by the 
 law of a particular State ; and in Penn- 
 sylvania and others of the States a scroll 
 is all that is necessary ; Miller r. Binder, 
 28 Pa. 439 (1857\ 
 
 And upon proof of the signatures it is 
 presumed that the instrument was duly 
 and regularly sealed, and, when found in 
 the possession of the grantee, that it was 
 delivered ; Pringle r. Pringle, 59 Pa. 289 
 (1868); and also from due acknowledg- 
 ment and recording delivery is presumed ; 
 McCurdy's Appeal, 65 Pa. 296 (1870) 
 Ingles v. Ingles, 150 Pa. 397 (1892). 
 
 6 It has been found necessary to depart 
 from Stephen's statement of the rule in 
 order to adapt this table to the law as it 
 exists in this country. 
 
 7 The judge decides whether or not docu- 
 ments are produced from proper custody, 
 and they 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 circumstances 
 of the particular case are such as to render 
 such an origin probable. Art. 88. 
 
 8 And in the absence of all evidence 
 relating to such alterations or interlinea- 
 tions. No person producing any document 
 
 which upon its face appears to have been 
 altered in a material part can claim under 
 it the enforcement of any right created by 
 it, unless the alteration was made before 
 the completion of the document or with 
 the consent of the party to be charged 
 under it or his representative in interest. 
 An alteration is said to be material when, 
 if it had been made with the consent of 
 the party 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 imma- 
 terial. The above rule extends to cases in 
 which the alteration was made by a 
 stranger, whilst the document was in the 
 custody of the person, producing it, but 
 without his knowledge or leave. Art. 89. 
 
 There is no presumption as to the time 
 when alterations or interlineations appear- 
 ing on the face of writings not under seal 
 were made, except that it is presumed that 
 they were so made that the making would 
 not constitute an offense. Ibid. 
 
 See in general the note of the American 
 Editor to Art. 89. 
 
 9 Stephen's rule cannot be fully accepted 
 as law in this country. Thus when the 
 alteration is beneficial to the party offer- 
 ing the instrument the burden is upon him 
 to explain the alteration to the satisfaction 
 of the jury ; Jordan v. Stewart, 23 Pa. 
 248 ff. (1854) ; Brady v. Berwind- White 
 Co., 106 Fed. 824 (1901). 
 
 10 But see Wikoffs Appeal, 15 Pa. 281 
 (1850). At page 290 Mr. Chief Justice 
 Gibson says: ''The presumption is that 
 they [interlineations in a will] were made at 
 or before the time when the will was pre- 
 pared for the final act [execution]." 
 
 65
 
 TABLE XXXIII. 
 
 Fifth Auxiliary of the Fifth Rule Concerning Proof. 1 Arts. 90-92. 
 
 WHEN ANY JUDGMENT OF ANY COURT OR ANY OTHER JUDI- 
 CIAL OR OFFICIAL PROCEEDING, OR ANY CONTRACT OR 
 GRANT, OR ANY OTHER DISPOSITION OF PROPERTY, HAS 
 BEEN REDUCED TO THE FORM OF A DOCUMENT, NO EVI- 
 DENCE MAY BE GIVEN OF ANY SUCH JUDGMENT OR PRO- 
 CEEDING, OR OF THE TERMS OF SUCH CONTRACT, GRANT, OR 
 OTHER DISPOSITION OF PROPERTY, EXCEPT THE DOCUMENT 
 ITSELF; 3 NOR MAY THE CONTENTS OF ANY SUCH DOCUMENT 
 BE CONTRADICTED, ALTERED, ADDED TO, OR VARIED BY 
 ORAL EVIDENCE. 
 
 I But evidence may be given 
 
 For testing the validity of a document, or of any part of it, or to 
 
 entitle to a judgment or decree relating to it 
 
 <- Of fraud, intimidation, illegality, want of due execu- 
 tion, want of capacity in any contracting party, the 
 fact that it is wrongly dated, want or failure of con- 
 sideration, or mistake in fact or law. * Art. 90. 
 
 For modification or evidence of a document 
 
 Of any separate oral agreement as to any matter on which 
 the document is silent, and which is not inconsistent 
 with its tesmr. 5 Art. 90. 
 
 Of any separate oral agreement, constituting a condition 
 precedent to the attaching of any obligation under any 
 such contract, grant or disposition of property. 6 Art. 90. 
 
 Of any distinct subsequent oral agreement to rescind or 
 modify any such contract, grant or disposition of pro- 
 
 perty. 7 Art. 90. 
 
 66
 
 ^ Of any usage or custom by which incidents not expressly 
 mentioned in any contract are annexed to contracts of 
 that description. 8 Art. 90. 
 
 For putting a construction upon a document 9 
 
 Of the meaning of illegible or not commonly intelligible 
 characters, of foreign, obsolete, technical, local and 
 provincial expressions, of abbreviations, and of com- 
 mon words which from the context, appear to have 
 been used in a peculiar sense. 10 Art. 91. 
 
 Of the circumstances of the case. " Art. 91. 
 
 Of the circumstances of the author of the document 
 and his habitual use of language or names for par- 
 ticular persons or things. ia Art. 91. 
 
 Of statements made by any party to the document as to 
 his intentions in reference to the matter to which the 
 document relates. 13 Art. 91. 
 
 Of facts to show that the document was in fact executed 
 with its apparent intention. 14 
 
 t Table XXVIII. 
 
 "Or secondary evidence of its contents 
 in cases in which secondary evidence is 
 admissible (see Table XXX). Art. 90. 
 
 'Applies only to parties to documents, 
 and their representatives in interest, and 
 only to cases in which some civil right or 
 civil liability depend upon the terms of a 
 document are in question. Art. 92. 
 
 *Or any other matter which, if proved, 
 would produce any effect upon the validity 
 of the documents, or of any part of it, or 
 which would entitle any person to any 
 judgment, decree, or order relating thereto. 
 Art. 90. 
 
 67 
 
 8 If, from the circumstances of the case, 
 the court infers that the parties did not 
 intend the documents to be a complete and 
 final statement of the whole of the trans- 
 action between them. Art. 90. And oral 
 evidence of a transaction is not excluded 
 by the fact that a documentary memorandum 
 of it (not intended to have legal effect as a 
 contract, etc.,) was made. Ibid. Nor is 
 oral evidence of the existence of a legal re- 
 lation, as distinguished from the terms 
 thereof, excluded by the fact that it has been 
 created by a document ; and 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. Ibid. 
 
 6 In Pennsylvania, where the parol evi- 
 dence rule has been less strictly applied 
 than in England, and elsewhere in this 
 country, it is held that a separate oral 
 agreement constituting the inducement for 
 entering into a 'written contract may be 
 proved. 
 
 T Provided that such agreement is not 
 invalid under the Statute of Frauds, or 
 otherwise. Art. 90. 
 
 8 Unless the annexing of such incident 
 to such contract would be repugnant to or 
 inconsistent with the express terms of the 
 contract. Art. 90. 
 
 'Means ascertaining the meaning of the 
 signs or words made upon it, and their rela- 
 tion to facts. Art. 91. 
 
 10 But evidence may not be given to show 
 that common words, the meaning of which 
 is plain, and which do n< t appear from the 
 context to have been u ed in a particular 
 sense, were in fact so used ; and if the 
 words of a document are, on the other 
 hand, so defective or ambiguous as to be 
 unmeaning, no evidence can be given to 
 show what the author of the document 
 intended to say. Art. 91. 
 
 11 This is for the purpose of ascertaining 
 the relation of tl.e words of the document 
 to facts (see note 9) ; and to this end every 
 fact may be proved to which the document 
 refers, or mny probably have been intended 
 to refer, or which identifies any person or 
 thing mentioned in it. Art. 91. [See this 
 article for application of the circumstances 
 of the case to the construction of a docu- 
 
 ment having a proper legal meaning and 
 also a less proper meaning ; for the rult 
 where a document has one distinct mean- 
 ing in reference to the circumstances ol 
 the case ; and for the course which may 
 be pursued if the document applies in par^ 
 but not with accuracy, or not completely 
 to the circumstances of the case]. 
 
 12 These facts are admissible only where 
 the document applies in part but not with 
 accuracy, or not completely to the circum- 
 stances of the case (see note 11) ; and, even 
 in such cases, no evidence can be given of 
 statements made by the author as to his 
 intentions in reference to the matter to 
 which the document relates. (But see notea 
 13 and 14). Art. 91. 
 
 "Such statements are admissible only 
 where the language of the document, 
 though plain in itself, applies equally well 
 to more objects than one, but in such cases 
 evidence may be given both of the circum- 
 stances of the case (see note 11) and of 
 such statements. Art. 91. 
 
 14 If the document is of such a nature 
 that the court will presume that it was 
 executed with any other than its apparent 
 intention. For instance, ad> pting Stephen's 
 illustration, where A leaves two legacies of 
 the same amount to B, assigning 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 circum- 
 stances, or of declarations by the testator, 
 that they were. Such proof is called evi- 
 dence to rebut an equity.
 
 TABLE XXXIV. 
 
 Sixth Rule Concerning Proof. (Added.) 
 
 RELEVANT FACTS MAY BE PROVED 
 
 I 
 
 I By real evidence * 
 
 The persons of individuals, a and things animate 3 or inanimate 
 which have a material relation to the case. * 
 
 ^ The locus in quo. 5 
 
 ^ Pictures of persons or of places, and maps or charts, made in such 
 manner as to secure accuracy of representation. 8 
 
 1 Real Evidence may be said to com- 
 prise any object the inspection whereof, 
 either taken by itself, or in connection 
 with other facts, proves or renders proba- 
 ble the past, present or future existence or 
 non-existence of any relevant fact, and the 
 term, no doubt, is inclusive of some ob- 
 jects which are not specifically enumerated 
 in this table. See, in general, note of the 
 American Editor to Art. 62. 
 
 2 Comm. v. Emmons,98 Mass. 6 (1867); 
 Indiana Car Co. vs. Parker, 100 Ind. 181 
 (1884). Whether a person suing for per- 
 sonal injuries can be compelled by the 
 court to submit his person to examination 
 either by the jury or by physicians, is a 
 question upon which the authorities are 
 not agreed. Such power has been denied 
 in Pettit v. Brewer, 8 W. N. C. 253 
 
 (1880) and in Railway Co. v. Botsford, 
 141 U. S. 250 (1891) ; on the other hand it 
 has been held to exist in Atchison, etc., 
 R. R Co. v. Thul, 29 Kans. 466 (1883). 
 
 3 Line v. Taylor, 3 F. & F. 731 (1862) : 
 Ferocious dog brought into court to prove 
 his disposition. 
 
 *Ex. gr. The weapon or instrument 
 used to commit a crime, bloody garments, 
 etc. Wynne v. State, 56 Ga. 113 (1876); 
 People v. Fernandez, 35 N. Y. 49 (1866). 
 
 5 May, in the discretion of the court be 
 visited by the jury: Vane v. Evanston, 
 150 Ills. 616 (1894). 
 
 6 Ex. gr. Photographs, If properly veri- 
 fied, Udderzook v. Comm., 76 Pa. 352 flf. 
 (1874), sketches made by an artist who 
 swears to their accuracy, People v. John- 
 son, 140 N. Y. 350 (1893), etc.
 
 THIRD PART. 
 
 71
 
 TABLE XXXV. 
 
 First Rule Concerning the Production and Effect of Evidence. 1 
 
 Arts. 93-97. 
 
 THE BURDEN OF PROOF 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. 2 Art. 95. 
 
 But may be relieved or shifted 
 
 I 
 
 V By presumption 3 
 By estoppel* 
 
 1 Under this head, viz. the Production 
 and Effect of Evidence, Stephen treats of 
 "Burden of Proof" (Arts. 93-97), of 
 "Presumptions and Estoppels" (Arts. 98- 
 105), of " The competency of witnesses " 
 (Arts. 106-122), of "Taking oral evi- 
 dence, and of the examination of wit- 
 nesses" (Arts. 123-139), of "Deposi- 
 tions" (Arts. 140-142), and of "Improper 
 admission and rejection of evidence" 
 (Art. 143). These subjects are covered 
 by Tables XXXV-XL1I and the accom- 
 panying notes; but are there presented 
 and dealt with in a manner somewhat dif- 
 ferent from that of the Digest. 
 
 1 "Whoever desires any court to give 
 judgment as to any legal right or liability 
 dependent on the existence or non-exist- 
 ence of facts which he asserts or denies to 
 exist, must prove that those facts do or do 
 not exist (Art. 93), unless as to any par- 
 
 ticular fact, it is provided by law that the 
 burden of proving that fact shall lie on 
 any particular person. Art. 96. Jf the 
 commission of a crime is directly in issue 
 in any proceeding, criminal or civil, it 
 must be proved beyond a reasonable doubt. 
 (As to civil cases see American Editor's 
 note). 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. 
 Art. 94. The burden of proving any fact 
 necessary to be proved in order to enable 
 any person to give evidence of any other 
 fact is on the person who wishes to give 
 such evidence. Art. 97. 
 
 3 See Table XXXVI, which is auxiliary 
 to this one. 
 
 4 See Table XXXVII, which is auxiliary 
 to this one. 
 
 73
 
 TABLE XXXVI. 
 
 First Auxiliary of the First Rule Concerning the Production and 
 Effect of Evidence. 1 Arts. 98-101. 
 
 THE BURDEN OF PROOF MAY BE RELIEVED OR SHIFTED 3 
 
 By presumption 
 
 Of legitimacy from the fact that the person to whom the question 
 relates was born during the continuance of a, valid marriage be- 
 tween his mother and any man, or ivithin a competent time there- 
 after. 3 Art. 98. 
 
 Of death from the fact that the person to whom the question relates 
 has not been heard of for seven years by those (if any) who if he 
 had been alive would naturally have heard of him. 4 Art. 99. 
 
 Of lawful origin of any proprietary right from the fact that a 
 person has, for a long period of time, exercised it. s Art. 100. 
 
 Of compliance with formal requisites for the validity of any judicial 
 or official act where it is shown to have been done in a manner 
 substantially regular. Art. 101. 
 
 Of the execution of every instrument whicn, to perfect the title of a 
 person in possession of any property and entitled to the beneficial 
 ownership thereof, it was the duty of his trustees to execute. 8 
 Art. 101. 
 
 1 Table XXXV. See also notes to Table 
 XXXVII. 
 
 1 A presumption which appears upon the 
 pleadings may relieve the party on whom 
 it would otherwise at first lie, of the bur- 
 
 den of proof (see Table XXXV), or as the 
 proceeding goes on the party on whom it 
 rested at first may prove facts which raise 
 a presumption in his favor, and in such 
 case the burden of proof is "shifted" 
 
 74
 
 to the other party. 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 pos- 
 sessed by the parties respectively. Arts. 
 95, 96. 
 
 3 A competent time thereafter is within 
 such a time after the dissolution of the 
 marriage and before the celebration of 
 another valid marriage, that his mother's 
 husband could have been his father. The 
 presumption is conclusive, unless it can be 
 shown either that his mother and her hus- 
 band had no access to each other when he 
 could have been begotten, regard being 
 had both to the date of the birth and to 
 the physical condition of the husband, or 
 that the circumstances of their access (if 
 any) were such as to render it highly im- 
 probable that sexual intercourse took 
 place. Art. 98. As to incompetency of 
 the mother and the husband as witnesses, 
 etc., Ibid. 
 
 4 Unless the circumstances of the case 
 are such as to account for his not being 
 heard of without assuming his death. There 
 is no presumption as to the time when he 
 died, or 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. Art. 99. 
 
 5 If it might have had a lawful origin 
 by grant or license from the government, 
 or from a private person, and its exercise 
 might and naturally would have been pre- 
 vented by the persons interested if it had 
 not had a lawful origin. It is presumed 
 that it was created by a proper instrument 
 which has been lost. Art. 100. 
 
 6 It will be assumed that they have done 
 what they should have done. 
 
 There are several presumptions in addi- 
 tion to those mentioned by Stephen, which 
 may relieve from or shift the burden of 
 proof. For instance, sanity is presumed, 
 and the burden lies upon him who alleges 
 insanity ; but while there is some conflict 
 of decision in the State Courts upon the 
 question, the Supreme Court of the United 
 States has recently held that in criminal 
 cases the defendant is entitled to the benefit 
 of a reasonable doubt of his sanity, pro- 
 duced by a proper consideration of all the 
 evidence. Davis v. United States, 165 U. 
 8., 373 (1897); 16 Sup. Court Rep., 353. 
 For presumption of innocence, see Art. 94.
 
 TABLE XXXVII. 
 
 Second Auxiliary of the First Rule Concerning the Production 
 and Effect of Evidence. 1 Arts. 102-105. 
 
 THE BURDEN OF PROOF MAY BE RELIEVED OR SHIFTED 
 
 By estoppel " 
 
 I 
 
 Precluding any person, or his representative in interest, from deny- 
 ing a the truth of anything which such person, by doing or saying, 
 or abstaining from doing or saying, has intentionally caused or 
 permitted another person to believe to be true, and to act upon 
 such belief.' Art. 102. 
 
 Precluding any person from denying that he acted in the manner 
 in which another person has been led to believe he acted by a 
 fraud of which the neglect of a legal duty " owing by the person 
 whose act is in question was in the natural course of things the 
 proximate cause. Art. 102. 
 
 Precluding any tenant 7 of any land or hereditament 8 from deny- 
 ing that the landlord had a title thereto. 10 Art. 103. 
 
 Precluding any acceptor of a bill of exchange from denying the 
 signature of the drawer or his capacity to draw, or if the bill is 
 payable to the order oj the drawer, his capacity to endorse the 
 bill, 11 or if the bill be drawn by procuration, the authority of 
 the agent to draw in the name of the principal, 12 or if the bill is 
 accepted in blank, that the drawer endorsed it. Art. 104. 
 
 Precluding any bailee, agent, or licensee from denying 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. 13 Art. 105. 
 
 76
 
 1 Table XXXV. See also notes to Table 
 XXXVI. 
 
 * Presumptions may be either conclusive 
 or disputable, but an estoppel is always 
 conclusive. The party estopped is pre- 
 cluded from denying the existence of the 
 fact to which the estoppel applies, and 
 therefore when the circumstances giving 
 rise to the estoppel are shown or appear, 
 the existence of such fact is, in effect, 
 conclusively established. 
 
 8 In any suit or proceeding between 
 either of them and sucli other person as is 
 next referred to. Art. 102. 
 
 4 Otherwise than he would have acted 
 except for that belief. Art. 102. 
 
 5 To exercise reasonable caution in the 
 transaction of any business. Ibid. 
 
 6 And when the person to whom the 
 duty is owing alters his position for the 
 worse because he is misled as to the con- 
 duct of the negligent person by the fraud. 
 Ibid. 
 
 T And any person claiming through any 
 tenant. Art. 103. 
 
 8 Of which he ha* been let into posses- 
 sion, or for which he has paid rent, till he 
 has given up possession. Ibid. 
 
 9 At the time when the tenant was let 
 into possession or paid the rent. Ibid. 
 
 10 A iid no person who came upon any 
 land by the license of the person in pos- 
 session 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. Ibid. 
 
 u Though he may deny the fact of the 
 endorsement. Art. 104. 
 
 12 Though he may deny his authority to 
 endorse it. Ibid. 
 
 13 For what such bailee, agent or licensee 
 may show, and as to the law of estoppel as 
 related to bills of lading, see the last two 
 paragraphs of Art. 105, and the njtes 
 thereto. 
 
 77
 
 TABLE XXXVIII. 
 
 Second Rule Concerning the Production and Effect of Evidence. 
 
 Arts. 106-109. 
 
 NO PERSON IS COMPETENT TO TESTIFY 1 
 
 I 
 
 Who is 3 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 questions, or from knowing 
 that he ought to speak the truth. 3 Art. 107. 
 
 Who (in criminal cases) is the accused person or 
 is the wife or husband of such person, or is a 
 person, or the wife or husband of a person, 
 jointly indicted with him. Art. 108.* 
 
 Who (in civil cases) is the lawful husband or 
 wife of a party, or of a person whose interests 
 are directly involved in the suit. 5 Art. 109. 
 
 1 The rule of the modern law is that all and by many of the State Legislatures, 
 
 persons are competent to testify in all cases For the Acts of Congress, see U. 8. Rev. 
 
 (Art. 106), and it seems to be the tendency St. \ 858; 20 U. S. St. at Large, 30 ; and 
 
 of the courts liberally to apply this rule as examples of State legislation, see the 
 
 and to avoid a too ready allowance of the Pennsylvania Statutes, Acts of May 23, 
 
 exceptions to it. The general subject of 1887, P. L. 158 ; June 11, 1891, P. L. 287 ; 
 
 competency, compulsion and prohibition June 8, 1893, P. L. 344; 'June 18, 1895, P. 
 
 to testify, has been dealt with by Congress L. 195 ; April 11, 1899, P. L. 41. Stephen 
 
 78
 
 does nut mention as disqualifying the fact 
 that the witness does not believe in a 
 future state of rewards and punishments, 
 or has committed treason, felony, or the 
 crimen falsi, but these disqualifications are 
 still generally recognized in this country. 
 See American note to Art. 107. 
 
 2 In the opinion of the judge. 
 
 8 A witness unable to speak or hear is 
 net incompetent, if he can give his evidence 
 intelligently by writing, signs, or other- 
 wise. Ait. 107. 
 
 4 But in any criminal proceeding against 
 a husband or wife for any bodily injury or 
 violence inflicted upon his or her wife or 
 husband, such wife or husband is compe- 
 tent and compellable to testify. Art. 108. 
 And see statutory provisions referred to 
 in note 1 to this Table. 
 
 When the only proof against a person 
 charged with a criminal offence is the evi- 
 dence of an accomplice, uncorroborated in 
 any material particular, it is the duty of 
 
 the j udge to warn the jury that it is unsafe 
 to convict any person upon such evidence, 
 though they have a legal right to do so. 
 Art. 121. 
 
 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 assigned, and if no cir- 
 cumstances are proved which corroborate 
 such witness, the defendant is entitled to 
 be acquitted. Art. 122. As to number 
 of witnesses requisite in trials for treason, 
 see the same article, and the Constitution 
 of the United States, Art. 3. Sec. 3, and 
 the similar provisions of the State Con- 
 stitutions. 
 
 5 Even after dissolution of the marriage, 
 neither party can testify as to facts learned 
 through the confidence of the marital re 
 lation, but may as to other facts. Art. 109. 
 See statutory provisions referred to in note 
 1 to this Table. 
 
 79
 
 TABLE XXXIX. 
 
 Third Rule Concerning the Production and Effect of Evidence. 
 Arts. 110-113, 116, 120. 
 
 NO PERSON IS COMPELLABLE TO TESTIFY 1 
 
 L As to any communication made to the witness by 
 his or her wife or husband during the marriage.* 
 Art. no. 
 
 As to anything which came to the knowledge of 
 the witness in court as a judge. 3 Art. in. 
 
 As to any affairs of State, or as to official com- 
 munications between public officers upon public 
 affairs, except with the permission of the officer 
 at the head of the department concerned. Art. 
 
 112. 
 
 As to the names of persons by or to whom infor- 
 mation was given as to the commission of 
 offences.* Art. 113. 
 
 As to any communication between the witness and 
 his legal adviser. 5 Art. 116. 
 
 As to any question put to the witness, the answer 
 to which would 6 have a tendency to expose him 
 or her (or his or her wife or husband) to any 
 criminal charge, or to any penalty or forfeiture 
 which the judge regards as reasonably likely to 
 be preferred or sued for. 7 Art. 120. 
 
 80
 
 iSee also Tables XXXVIII and XL. 
 
 'See statutory provisions referred to in 
 note 1 to Table XXXVIII. 
 
 Doubtful. Art. 111. It seems that a 
 lawyer cannot be compelled to testify as to 
 what he said in court in his character of a 
 lawyer. Ibid. 
 
 4 Applies to cases in which the govern- 
 ment is immediately concerned. Art. 113. 
 In ordering criminal prosecutions it is for 
 the judge to decide whether the permission 
 of any such question would or would not, 
 under the circumstances of the particular 
 case, be injurious to the administration of 
 justice. Ibid. 
 
 6 Which his legal adviser could not dis- 
 close without his permission (Table XL). 
 Art. 116. 
 
 6 In the opinion of the judge. Art. 
 120. 
 
 i No witness who is not a party to a suit 
 can be compelled to produce his title-deeds 
 to any property, or any document the pro- 
 duction of which might tend to criminate 
 him, or expose him to any penalty or for- 
 feiture ; and no solicitor, trustee, or mort- 
 gagee can be compelled to produce (except 
 for the purpose of identification ) documents 
 in his possession as such, which his client, 
 cestui que trust, or mortgagor 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. Arts. 118, 119. 
 
 81
 
 TABLE XL. 
 
 Fourth Rule Concerning the Production and Effect of Evidence. 
 
 Arts. 114, 115. 
 
 NO PERSON IS PERMITTED TO TESTIFY' 
 I 
 
 As to what passed between the jurymen in the 
 discharge of their duties in any case in which 
 the witness was a petty juror or a grand juror. 2 
 Art. 114. 
 
 As to any communication, oral or documentary, 
 made to the witness as an attorney at law by or 
 on behalf of his client, or as to any advice given 
 by him to his client. 3 Art. 115. 
 
 iSee also Tables XXXVIII and 
 XXXIX. 
 
 2 It is doubtful whether a grand juror 
 may give evidence as to what any witness 
 said when examined before the grand jury. 
 Art. 114. 
 
 'The legal adviser is not permitted to 
 make such disclosures either during or 
 after the termination of his employment 
 as such, unless with his client's express 
 consent. The rule applies to communica- 
 tions made and advice given during, in 
 the course, and for the purpose of his em- 
 ployment, whether in reference to any 
 matter as to which a dispute has arisen or 
 
 otherwise ; and 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. Art. 115. For a statement of 
 communications and facts to which the 
 rule does not extend, and of those whom 
 the expression "legal adviser" includes, 
 see the same Article. Medical men and 
 (probably) clergymen may be compelled to 
 disclose communications made to them in 
 professional confidence. Art. 117. But 
 as to physicians and surgeons, see statutory 
 provisions referred to in note 1 to Table 
 XXXVIII ; e. g. the Pennsylvania Statute 
 of June 18, 1895, P. L. 195. 
 
 83
 
 TABLE XLI. 
 
 Fifth Rule Concerning the Production and Effect of Evidence. 
 
 Arts. 123-125. 
 
 ALL ORAL EVIDENCE GIVEN IN ANY PROCEEDING MUST BE 
 GIVEN UPON OATH OR SOLEMN AFFIRMATION, 1 AND MAY 
 BE TAKEN 
 
 I 
 
 1" In open court upon a final or preliminary hearing. 
 Art. 125. 
 
 ^ Out of court for future use in court. Art. 125. 
 
 Upon affidavit. 2 Art. 125. 
 Under a commission. 3 s Art. 125. 
 
 Before any person appointed by the court or a judge, or selected by 
 agreement of the parties. 4 " s Art. 125. 
 
 1 Affirmation is permitted only when the 
 witness is, from conscientious motives, un- 
 willing to be sworn, and the judge is 
 satisfied of the sincerity of his objection. 
 Art. 123. Oaths are binding which are 
 administered in such form and with such 
 ceremonies as the person sworn declares to 
 be binding. Every person now or here- 
 after having power by law or by consent of 
 parties to hear, receive, and examine evi- 
 dence, is empowered to administer an oath 
 to all such witnesses as are lawfully called 
 before him. Art. 124. 
 
 'Affidavits are received upon prelimin- 
 ary and ex parte applications in common 
 law proceedings, e. g. upon a motion for 
 the postponement of trial, for a rule to 
 show cause, etc. In equity they are re- 
 ceived upon similar applications, and on 
 motions for interlocutory orders, e. g. for 
 
 an injunction pendente lite, etc. As to 
 affidavits upon information and belief, etc. 
 See Art. 125, and the American note 
 thereto. 
 
 'Oral evidence must be taken in the 
 manner prescribed by the commission. Art. 
 125. See American note to Art. 125. 
 
 *Oral evidence must be taken in the 
 same manner as if it were taken in open 
 court (Table XLII) ; but the person taking 
 it has no right to decide on the validity of 
 objections taken to particular questions 
 [unless authorized, as in the case of a 
 master in equity], but must record the 
 questions, the fact that they were objected 
 to, and the answers given. Art. 125. 
 
 6 As to the time for raising objections to 
 a deposition or to evidence taken under a 
 commission, see American note to Art. 
 125. 
 
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 TABLE XLII. 
 
 Sixth Rule Concerning the Production and Effect of Evidence. 
 
 Arts. 126-142. 
 
 WITNESSES EXAMINED IN OPEN COURT 1 MUST BE 
 
 ) First examined in chief. 3 - * 
 
 Then cross-examined.* 
 I Then re-examined. 3 * 
 
 'The examination of witnesses out of 
 court proceeds in the same order, and even 
 where evidence is taken under a commis- 
 sion, the manner of taking it is, so far as 
 practicable, generally the same as if it were 
 taken in open court. See notes 3 and 4 to 
 Table XLI. 
 
 As to a witness refreshing his memory 
 by referring to a writing, see Art. 136 ; 
 and as to the right of the adverse party to 
 see any writing so used, and to cross-ex- 
 amine upon it, see Art. 137. As to the 
 requirement that a party who calls for a 
 document and, upon its production inspects 
 it, must give it in evidence, see Art. 138 ; 
 and that a party who refuses to produce a 
 document on notice, may not afterwards 
 use it as evidence without the consent of 
 the other party, see Art. 139. As to statu- 
 tory provisions relating to depositions, 
 see Arts. 140-142. 
 
 * As to the right of the opposite party to 
 cross-examine a witness who has been ex- 
 amined in chief, or has been intentionally 
 
 sworn or affirmed; as to recalling a wit- 
 ness for further examination or for further 
 cross-examination ; as to the effect of the 
 death or incapacity of a witness at any 
 stage of his examination ; and as to the 
 practice where in the course of a trial a 
 witness who was supposed to be competent 
 appears to be incompetent, see Art. 126, 
 and the American notes. 
 
 1 Leading questions, if objected to, must 
 not be asked, except with the permission of 
 the court. Art. 128. 
 
 4 Leading questions may be put. Art. 
 128. 
 
 The cross-examination need not be con- 
 fined to the facts to which the witness 
 testified on his examination in chief. Art. 
 127. [But see American notes]. In ad- 
 dition to questions relating to facts in issue 
 or relevant thereto, the witness, when un- 
 der cross-examination, may be asked any 
 questions which tend to test his accuracy, 
 veracity, or credibility, or to shake his 
 credit by injuring his character. Art. 129. 
 
 86
 
 As to how far a witness may be compelled 
 to answer such questions, see Art. 129, and 
 notes, and as to questions tending to crim- 
 inate, etc., see Table XXXIX. When 
 a witness under cross-examination hns 
 answered any question which is relevant 
 only in so far as it tends to shake his credit 
 by injuring his character, no evidence can 
 be given to contradict him, except where 
 he denies or does not admit that he has 
 been convicted of any felony or misde- 
 meanor, or answers aiiy question tending 
 to show that he is not impartial, by deny- 
 ing the facts suggested. Art. 130. He 
 may be asked whether 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 
 sufficiently 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. 
 Art. 131. The same course may be taken 
 with a witness under examination in chief, 
 
 if the judge is of opinion that he is ad- 
 verse. Ibid. As to previous statements 
 made by the witness in writing, or reduced 
 into writing, see Art. 132; and as to im- 
 peaching the credit of a witness by the 
 evidence of other persons who, from their 
 knowledge of him, believe him to be un- 
 worthy of credit upon his oath, see Art. 
 133. 
 
 When a man is prosecuted for rape or an 
 attempt to ravish (Table V11I), the woman 
 may be asked whether she has had connec- 
 tion with other men, but her answer cannot 
 be contradicted. She may also be asked 
 whether she has had connection on other 
 occasions with the prisoner, and if she 
 denies it, she may be contradicted. Art. 
 134. 
 
 5 The re-examination must be directed to 
 the explanation of matters referred to in 
 cross-examination ; and if new matter is, 
 by permission of the Court, introduced in 
 re-examination, the adverse party may 
 further cross-examine upon that matter. 
 Art. 127. 
 
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 TABLE XLIII. 
 
 Seventh Rule Concerning the Production and Effect of Evidence. 
 
 Art. 143. 
 
 A NEW TRIAL, WILL NOT BE GRANTED IN ANY CIVIL ACTION l 
 ON THE GROUND OF THE IMPROPER ADMISSION OR REJEC- 
 TION OF EVIDENCE, UNLESS SOME SUBSTANTIAL WRONG OR 
 MISCARRIAGE HAS BEEN THEREBY OCCASIONED IN THE 
 TRIAL OF THE ACTION. ART. 143. 
 
 criminal cases, the English rule, 
 as presented by Stephen, is different; but, 
 as noticed by the American editor, " in this 
 country, it is a general rule in criminal 
 cases that a new trial will not be granted 
 
 for the erroneous admission or rejection of 
 evidence, when it clearly appears that the 
 defendant could not have been prejudiced 
 thereby." 
 
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