UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY JJ '* A DIGEST OF THE LAW OF EVIDENCE. A DIGEST LAW OF EVIDENCE BY SIR JAMES FITZJAMES STEPHEN, Bart., K.C.S. I., D.C.L. FORMERLY A JUDGE OF THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION ; HONORARY FELLOW OF TRINITY COLLEGE, CAMBRIDGE SECOND AMERICAN EDITION (FROM THE SIXTH ENGLISH EDITION) WITH ANNOTATIONS AND REFERENCES TO AMERICAN CASES BY GEORGE CHASE, LL.B. PROFESSOR OF LAW IN THE NEW YORK LAW SCHOOL, NEW YORK CITY, AND DEAN OF THE FACULTY NEW YORK PRINTED FOR THE EDITOR T st 436 a \838 Copyright, GEORGE CHASE, 1885. Copyright, GEORGE CHASE. 1898. # EDITOR'S NOTE TO FIRST AMERICAN EDITION. a The merits of "Stephen's Digest" are too well known to need repetition. It has been accepted in this country, as well as in England, as a standard treatise upon the subject of Evidence. The editor has sought in this edition to increase its usefulness for American lawyers and students of law by fully annotating it, so as to exhibit the general principles of the American Law of Evidence in accordance with the latest and best decisions. The contents of the original work are preserved without change, ex- cept that, in a few instances, articles stating special provisions of English statutes have been transferred to the foot-notes or to the Appendix. These transfers are always clearly indicated where- ever made. But no omissions have been made, and the editor's additions are always indicated by being enclosed between brackets. It will, therefore, be easy to distinguish between the original articles and notes and those of this edition. The extent of corre- spondence or difference between the English and the American law is thus made clearly manifest. The American cases cited by the editor are considerably more numerous than the English citations of Mr. Stephen ; this has seemed necessary in order that the book might satisfactorily ex- hibit the Law of Evidence for the different States and Territories, and thus be serviceable in all parts of the country. A new and more complete index will be found in this edition. G. C. New York, October, 1885. EDITOR'S NOTE TO SECOND AMERICAN EDITION. This edition incorporates such additions and changes in the text of the work as were made by Mr. Stephen in the last English edition which was published before his death. The annotations which set forth the American law have been fcfclS.13 EDITOR'S NOTE. thoroughly revised and largely re-written. Some important topics have thus received fuller treatment than was given to them in the former edition. In the twelve years that have elapsed since that edition appeared several thousand cases have been published in the American reports, bearing upon the subject of Evidence. These have been carefully examined, and are extensively cited in the notes, so as to exhibit the law upon this subject in its latest development. Many new Illustrations have also been added. As in the former edition, whatever I have added to the original English work is inclosed in brackets. I have received many gratifying assurances from lawyers and law-students that my former edition has been found by them very helpful, both in study and in practice. I trust this edition will be even more so. I can truly agree with Mr. Stephen in saying (see page xv, infra), that "the labor bestowed upon the work has been in an inverse ratio to its size." G. C. New York, January, 1898. • PREFACE TO THE SIXTH ENGLISH EDITION. I have referred in this edition to the cases decided and stat- utes passed since the publication of its predecessor and down to the end of 1892. The law has hardly been altered at all since the book was first published. Short as it is, I believe it will be found to contain practically the whole of the law on the subject. J. F. STEPHEN. CONTENTS. PAGE Introduction xiii Table of Cases Cited xxix List of Abbreviations xcv PART I. RELEVANCY. Chapter I. — Preliminary. Art. i. Definition of Terms Pages 3-5 Chapter II. — Of Facts in issue and relevant to the issue. Art 2. Facts in issue and Facts relevant to the issue may be proved — 3. Relevancy of Facts forming part of the same transaction as the Facts in issue — 4. Acts of Conspirators — 5. Title — 6. Customs — 7. Motive, preparation, subsequent conduct, ex- planatory statements — 8. Statements accompanying acts, com- plaints, statements in presence of a person — 9. Facts necessary to explain or introduce relevant Facts Pages 6-33 Chapter III. — Occurrences similar to but unconnected with the Facts in issue, irrelevant except in certain cases. Art. 10. Similar but unconnected Facts — 11. Acts showing inten- tion, good faith, &c. — 12. Facts showing system — 13. Existence of course of business, when deemed to be relevant.. . Pages 34-54 Chapter IV. — Hearsay irrelevant except in certain cases. Art. 14. Hearsay and the contents of documents irrelevant Pages 55, 56 Section i. — Hearsay when relevant. Art. 15. Admissions defined — 16. Who may make admissions on behalf of others, and when- — 17. Admissions by agents and per- sons jointly interested with parties — 18. Admissions by strangers CONTENTS. — 19. Admission by person referred to by party — 20. Admissions made without prejudice — 21. Confessions defined — 22. Confes- sion caused by inducement, threat, or promise, when irrelevant in Criminal Proceeding — 23. Confessions made upon oath, &c. — 24. Confession made under a promise of secrecy — 25. State- ments by deceased persons, when deemed to be relevant — ' 26. Dying declaration as to cause of death — 27. Declarations made in the course of business or professional duty — 28. Decla- rations against interest — 29. Declarations by testators as to contents of will — 30. Declarations as to public and general rights — 31. Declarations as to pedigree — 32. Evidence given in former proceeding, when relevant Pages 57-1 1 1 Section ii. — Statements in Books, Documents, and Records, when relevant. Art. 33. Recitals of public facts in statutes and proclamations — 34. Relevancy of entry in public record made in performance of duty — -35. Relevancy of statements in works of history, maps, charts, and plans — 36, 37, 38. Entries in bankers' books — 39. Judgment — 40. All judgments conclusive proof of their legal effect — 41. Judgments conclusive as between parties and privies of Facts forming ground of Judgment— 42. Statements in judgments.irrelevant as between strangers, except in Admiralty Cases— 43. Effect of judgment not pleaded as an estoppel — 44. Judgments generally deemed to be irrelevant as between strangers — 45. Judgments conclusive in favor of Judge — 46. Fraud, collusion, or want of jurisdiction may be proved — 47. Foreign judgments Pages 11 2- 140 Chapter V.— Opinions, when relevant and when not. Art. 48. Opinion generally irrelevant — 49. Opinions of experts on points of science or art — 50. Facts bearing upon "opinions of experts— 51. Opinion as to handwriting, when deemed to be relevant— 52. Comparison of handwritings— 53. Opinion as to existence of marriage, when relevant — 54. Grounds of opinion, when deemed to be relevant Pages 141-157 Chapter VI. Character, when deemed to be relevant AND WHEN NOT. Art. 55. Character generally irrelevant— 56. Evidence of character in Criminal Cases — 57. Character as affecting damages Pages 158-162 CONTENTS. PART II. ON PROOF. Chapter VII. — Facts proved otherwise than by Evidence — Judicial Notice. Art. 58. Of what P'acts the Court takes judicial notice — 59. As to proof of such Facts — 60. Evidence need not be given of Facts admitted Pages 163-174 Chapter VIII. — Of Oral Evidence. Art. 61. Proof of Facts by oral evidence — 62. Oral evidence raust be direct Pages 175-177 Chapter IX.— Of Documentary Evidence — Primary and Secondary, and Attested Documents. Art. 63. Proof of contents of documents — 64. Primary evidence — 65. Proof of documents by primary evidence — 66. Proof of execution of document required by law to be attested — 67. Cases in which attesting witness need not be called — 68. Proof when attesting witness denies the execution — 69. Proof of document not required by law to be attested — 70. Secondary evidence — 71. Cases in which secondary evidence relating to documents may be given — 72. Rules as to notice to produce . . Pages 1 78-195 Chapter X. — Proof of Public Documents. Art. 73. Proof of public documents — 74. Production of document itself — 75. Examined copies — 76. [General records of the Nation or State] — 77. Exemplifications — 78. Copies equivalent to exemplifications — 79. Certified copies — 80. [Documents and records of the several States admissible throughout the United States] — 81. [Officially printed copies] — 82. [Proof of the statutes of any State or Territory] — 83. [Proclamations, Acts of State, Legislative Journals, etc.] — 84. [Foreign written laws, Acts of State, records, etc.] Pages 196-208 CONTENTS. Chapter XL— Presumptions as to Documents. Art. 85. Presumption as to date of a document— 86. Presumption as to stamp of a document— 87. Presumption as to sealing and delivery of deeds — 88. Presumption as to documents thiny years old — 89. Presumption as to alterations Pages 209-218 Chapter XII.— Of the Exclusion of Oral by Documi.ntai Evidence, and of the Modification and Interpreta- tion of Documentary by Oral Evidence. Art. 90. Evidence of terms of contracts, grants, and other disposi- tions of property reduced to a documentary form — 91. What evidence may be given for the interpretation of documents — 92. Cases to which Articles 90 and 91 do not apply. . Pages 219-236 CO iNTENTS. PART III. PRODUCTION AND EFFECT OF EVIDENCE. Chapter XIII.— Burden of Proof. Art. 93. He who affirms must prove — 94. Presumption of inno- cence — 95. On whom the general burden of proof lies — 96. Burden of proof as to particular Fact — 97. Burden of proving Fact to be proved to make evidence admissible — 97 A. Burden of proof when parties stand in a fiduciary relation. .Pages 237-254 Chapter XIV.— On Presumptions and Estoppels. Art. 98. Presumption of legitimacy — 99. Presumption of death from seven years' absence — 100. Presumption of lost grant — 101. Presumption of regularity and of deeds to complete title — 102. Estoppel by conduct — 103. Estoppel of tenant and licensee — 104. Estoppel of acceptor of bill of exchange — 105. Estoppel of bailee, agent, and licensee Pages 255-269 Chapter XV. — Of the Competency of Witnesses. Art. 106. Who may testify — 107. What witnesses are incompetent — 108. Competency in Criminal Cases — 109. [Husband and wife in civil cases — Cases of adultery] — -no. Communications during marriage — ill. Judges and advocates privileged as to certain questions — 112. Evidence as to affairs of state — 113. Informa- tion as to commission of offences — 114. Competency of jurors — 115. Professional communications — 116. Confidential commu- nications with legal advisers — 117. Clergymen and medical men - — 118. Production of title-deeds of witness not a party — 119. Production of documents which another person, having posses- sion, could refuse to produce — 120. Witness not to be compelled to criminate himself — 121. Corroboration, when required — 121 a. Claim on estate of deceased person — 122. Number of witnesses Pages 270-305 CONTENTS. Chapter XVI. — Of taking Oral Evidence, and of the Examination of Witnesses. Art. 123. Evidence to be upon oath, except in certain cases — 124. Form of oaths; by whom they may be administered — 125. How oral evidence may be taken — 126. Examination in chief, cross-examination, and re-examination — 127. To what matters cross-examination and re-examination must be directed ■ — 128. Leading questions — 129. Questions lawful in cross-exam- ination — 129 A. Judge's discretion as to cross-examination to credit — 130. Exclusion of evidence to contradict answers to questions testing veracity — 131. Statements inconsistent with present testimony may be proved — 132. Cross-examination as to previous statements in writing — 133. Impeaching credit of witness — 134. Offences against women — 135. What matters may be proved in reference to declarations relevant under Articles 25-32. — 136. Refreshing memory — 137. Right of ad- verse party as to writing used to refresh memory — 138. Giving, as evidence, document called for and produced on notice — 139. Using, as evidence, a document production of which was refused on notice » Pages 306-345 Chapter XVII — Of Depositions. Art. 140. Depositions before magistrates — 141. Depositions under 30 & 31 Vict. c. 35, s. 6. — 142. Depositions under Merchant Shipping Act, 1854 Pages 346-349 Chapter XVIII.— Of Improper Admission and Rejection of Evidence. Art. 1 43 Page 350 Appendix of Notes Pages 35 1-406 Index Page 407 INTRODUCTION. In the years 1 870-1 871 I drew what afterwards became the Indian Evidence Act (Act 1 of 1872). This Act began by repealing (with a few exceptions) the whole of the Law of Evidence then in force in India, and proceeded to re-enact it in the form of a code of 167 sections, which has been in operation in India since Sept., 1872. I am informed that it is generally understood, and has required little judicial commentary or exposition. In the autumn of 1872 Lord Coleridge (then Attorney-General) employed me to draw a similar code for England. I did so in the course of the winter, and we settled it in frequent consultations. It was ready to be introduced early in the Session of 1873. Lord Coleridge made various attempts to bring it forward, but he could not succeed till the very last day of the Session. He said a few words on the subject on the 5th August, 1873, just before Parliament was prorogued. The Bill was thus never made public, though I believe it was ordered to be printed. It was drawn on the model of the Indian Evidence Act, and contained a complete system of law upon the subject of Evidence. The present work is founded upon this Bill, though it differs from it in various respects. Lord Coleridge's Bill proposed a variety of amendments of the existing law. These are omitted in the present work, which is intended to represent the existing law exactly as it stands. The Bill, of course, was in the ordinary form of an Act of Parliament. In the book I have allowed myself more freedom of expression, though I have spared no pains to make my statements precise and complete. In December, 1875, at tne request of the Council of Legal Edu- cation, I undertook the duties of Professor of Common Law, at the Inns of Court, and I chose the Law of Evidence for the subject of lNTKODI ("1'ION. my first course of lectures. It appeared to me that the draft Bill which I had prepared for Lord Coleridge supplied the materials for such a statement of the law as would enable students to obtain a precise and systematic acquaintance with it in a moderate space of time, and without a degree of labor disproportionate to its im- portance in relation to other branches of the law. No such work, so far as I know, exists ; for all the existing books on the Law of Evidence are written on the usual model of English law-books, which, as a general rule, aim at being collections, more or less complete, of all the authorities upon a given subject, to which a judge would listen in an argument in court. Such works often become, under the hands of successive editors, the repositories of an extraordinary amount of research, but they seem to me to have the effect of making the attainment by direct study of a real knowledge of the law, or of any branch of it as a whole, almost impossible. The enormous mass of detail and illustration which they contain, and the habit into which their writers naturally fall, of introducing into them everything which has any sort of connec- tion, however remote, with the main subject, make these books useless for purposes of study, though they may increase their utility as works of reference. The enormous size and length of the stand- ard works of reference is a proof of this. They consist of thousands of pages and refer to many thousand cases. When we remember that the Law of Evidence forms only one branch of the Law of Procedure, and that the Substantive Law which regulates rights and duties ought to be treated independently of it, it becomes (ib viuus that if a lawyer is to have anything better than a familiarity with indexes, he must gain his knowledge in some other way than from existing books. No doubt such knowledge is to be gained. Experience gives by degrees, in favorable cases, a comprehensive acquaintance with the principles of the law with which a prac- titioner is conversant. He gets to see that it is shorter and simpler than it looks, and to understand that the innumerable cases which at first sight appear to constitute the law, are really no more than INTRODUCTION. illustrations of a comparatively small number of principles ; but those who have gained knowledge of this kind have usually no opportunity to impart it to others. Moreover, they acquire it very slowly, and with needless labor themselves, and though knowledge so acquired is often specially vivid and well remembered, it is often fragmentary, and the possession of it not unfrequently renders those who have it sceptical as to the possibility, and even as to the expediency, of producing anything more systematic and complete. The circumstances already mentioned led me to put into a sys- tematic form such knowledge of the subject as I had acquired. This work is the result. The labor bestowed upon it has, I may say, been in an inverse ratio to its size. My object in it has been to separate the subject of evidence from other branches of the law with which it has commonly been mixed up ; to reduce it into a compact systematic form, distributed according to the natural divis- ion of the subject-matter ; and to compress into precise definite rules, illustrated by examples, such cases and statutes as properly relate to the subject-matter so limited and arranged. I have at- tempted, in short, to make a digest of the law, which, if it were thought desirable, might be used in the preparation of a code, and which will, I hope, be useful, not only to professional students, but to every one who takes an intelligent interest in a part of the law of his country bearing directly on every kind of investigation into questions of fact, as well as on every branch of litigation. The Law of Evidence is composed of two elements, namely, first, an enormous number of cases, almost all of which have been decided in the course of the last ioo or 150 years, and which have already been collected and classified in various ways by a suc- cession of text writers, from Gilbert and Peake to Taylor and Roscoe ; secondly, a comparatively small number of Acts of Parlia- ment which have been passed in the course of the last thirty or forty years, and have effected a highly beneficial revolution in the law as it was when it attracted the denunciations of Bentham. Writers on the Law of Evidence usually refer to statutes by the INTRODUCTION. hundred, but the Acts of Parliament which really relate to the subject are but few. A detailed account of this matter will be found at the end of the volume, in Note XLVIII. The arrangement of this book is the same as that of the Indian Evidence Act, and is based upon the distinction between relevancy and proof, that is, between the question, What facts may be proved ? and the question, How must a fact be proved, assuming that proof of it may be given ? The neglect of this distinction, which is con- cealed by the ambiguity of the word evidence (a word which some- times means testimony and at other times relevancy) has thrown the whole subject into confusion, and has made what is really plain enough appear almost incomprehensible. In my Introduction to the Indian Evidence Act published in 1872, and in speeches made in the Indian Legislative Council, I entered fully upon this matter. It will be sufficient here to notice shortly the principle on which the arrangement of the subject is based, and the manner in which the book has been arranged in conse- quence. The great bulk of the Law of Evidence consists of negative rules declaring what, as the expression runs, is not evidence. The doctrine that all the facts in issue and relevant to the issue, and no others, may be proved, is the unexpressed principle which forms the center of and gives unity to all these express negative rules. To me these rules always appeared to form a hopeless mass of confusion, which might be remembered by a great effort, but could ,ot be understood as a whole, or reduced to a system, until it occurred o me to ask the question, What is this evidence which you tell me hearsay is not? The expression "hearsay is not evidence" seemed to assume that I knew by the light of nature what evidence was, but I perceived at last that that was just what I did not know. I found that I was in the position of a person who, having never seen a cat, is instructed about them in this fashion: " Lions are not cats, nor are tigers nor leopards, though you might be inclined to think they were." Show me a cat to begin with, and I at once understand both what is INTRODUCTION. meant by saying that a lion is not a cat, and why it is possible to call him one. Tell me what evidence is, and I shall be able to understand why you say that this and that class of facts are not evidence. The question "What is evidence?" gradually disclosed the ambiguity of the word. To describe a matter of fact as "evidence" in the sense of testimony is obviously nonsense. No one wants to be told that hearsay, whatever else it is, is not testimony. What then does the phrase mean? The only possible answer is : It means that the one fact either is or else is not considered by the person using the expres- sion to furnish a premise or part of a premise from which the existence of the other is a necessary or probable inference, — in other words, that the one fact is or is not relevant to the other. When the inquiry is pushed further, and the nature of relevancy has to be considered in itself, and apart from legal rules about it, we are led to inductive logic, which shows that the judicial evidence is only one case of the general problem of science — namely, inferring the unknown from the known. As far as the logical theory of the matter is concerned, this is an ultimate answer. The logical theory was cleared up by Mr. Mill. Bentham and some other 1 writers had more or less discussed the connection of logic with the rules of evidence. But I am not aware that it occurred to any one before I published my ' Introduction to the Indian Evidence Act' to point out in detail the very close resemblance which exists between Mr. Mill's theory and the existing state of the law. The law has been worked out by degrees by many generations of judges who perceived more or less distinctly the principle on which it ought to be founded. The rules established by them no doubt treat as relevant some facts which cannot perhaps be said to be so. More frequently they treat as irrelevant facts which are really 1 See, e.g., that able and interesting book 'An Essay on Circum- stantial Evidence,' by the late Mr. Wills, father of Mr. Justice Wills, Q. C. Chief Baron Gilbert's work on the Law of Evidence is founded on Locke's 'Essay,' much as my work is founded on Mills 1 Logic' INTRODUCTION. relevant, but exceptions excepted, all their rules are reducible to the principle that facts in issue or relevant to the issue, and no others, may be proved. The following outline of the contents of this work will show how, in arranging it, I have applied this principle. All law may be divided into Substantive Law, by which rights, duties, and liabilities are defined, and the Law of Procedure by which the Substantive Law is applied to particular cases. The Law of Evidence is that part of the Law of Procedure which, with a view to ascertain individual rights and liabilities in particular cases, decides : I. What facts may, and what may not be proved in such cases ; II. What sort of evidence must be given of a fact which may be proved; III. By whom and in what manner the evidence must be produced by which any fact is to be proved. I. The facts which may be proved are facts in issue, or facts rele- vant to the issue. Facts in issue are those facts upon the existence of which the right or liability to be ascertained in the proceeding depends. Facts relevant to the issue are facts from the existence of which inferences as to the existence of the facts in issue may be drawn. A fact is relevant to another fact when the existence of the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of the existence of the other, or when the existence of the one, either alone or together with other facts, renders the existence of the other highly probable, or improbable, according to the common course of events. Four classes of facts, which in common life would usually be regarded as falling within this definition of relevancy, are excluded from it by the Law of Evidence except in certain cases : 1. Facts similar to, but not specifically connected with, each other. {Res inter alios actce.) 2. The fact that a person not called as a witness has asserted the existence of any fact. {Hearsay.) INTRODUCTION. 3. The fact that any person is of opinion that a fact exists. {Opinion.) 4. The fact that a person's character is such as to render conduct imputed to him probable or improbable. {Character.) To each of those four exclusive rules there are, however, important exceptions, which are defined by the Law of Evidence. II. As to the manner in which a fact in issue or relevant fact must be proved. Some facts need not be proved at all, because the Court will take judicial notice of them, if they are relevant to the issue. Every fact which requires proof must be proved either by oral or by documentary evidence. Every fact, except (speaking generally) the contents of a docu- ment, must be proved by oral evidence. Oral evidence must in every case be direct, that is to say, it must consist of an assertion by the person who gives it that he directly perceived the fact to the existence of which he testifies. Documentary evidence is either primary or secondary. Primary evidence is the document itself produced in court for inspection. Secondary evidence varies according to the nature of the docu- ment. In the case of private documents a copy of the document, or an oral account of its contents, is secondary evidence. In the case of some public documents, examined or certified copies, or exempli- fications, must or may be produced in the absence of the documents themselves. Whenever any public or private transaction has been reduced to a documentary form, the document in which it is recorded becomes exclusive evidence of that transaction, and its contents cannot, except in certain cases expressly defined, be varied by oral evidence, though secondary evidence may be given of the contents of the document. III. As to the person by whom, and the manner in which the proof of a particular fact must be made. When a fact is to be proved, evidence must be given of it by the person upon whom the burden of proving it is imposed, either by the INTRODUCTION. nature of the issue or by any legal presumption, unless the fact is one which the party is estopped from proving by his own represen- tations, or by his conduct, or by his relation to the opposite party. The witnesses by whom a fact is to be proved must be competent. With very few exceptions, every one is now a competent witness in t»ll cases. Competent witnesses, however, are not in all cases com- pelled or even permitted to testify. The evidence must be given upon oath, or in certain excepted >;ases without oath. The witnesses must be first examined in chief, then cross-examined, and then re-examined. Their credit may be tested in certain ways, and the answers which they give to questions affecting their credit maybe contradicted in certain cases and not in others. This brief statement will show what I regard as constituting the Law of Evidence, properly so called. My view of it excludes many things which are often regarded as forming part of it. The principal subjects thus omitted are as follows : — I regard the question, What may be proved under particular issues ? (which many writers treat as part of the Law of Evidence) as belong- ing partly to the subject of pleading, and partly to each of the different branches into which the Substantive Law may be divided. A is indicted for murder, and pleads Not Guilty. This plea puts in issue, amongst other things, the presence of any state of mind describable as malice aforethought, and all matters of justification or extenuation. Starkie and Roscoe treat these subjects at full length, as supplying answers to the question, What can be proved under an issue of Not Guilty on an indictment for murder? Mr. Taylor does not go so far as this ; but a great part of his book is based upon a similar principle of classification. Thus chapters i. and ii. of Part II. are rather a treatise on pleading than a treatise on evidence. Again, I have dealt very shortly with the whole subject of pre- sumptions. My reason is that they also appear to me to belong to different branches of the Substantive Law, and to be unintelligible, INTRODUCTION. except in connection with them. Take for instance the presumption that every one knows the law. The real meaning of this is that, speaking generally, ignorance of the law is not taken as an excuse for breaking it. This rule cannot be properly appreciated if it is treated as a part of the Law of Evidence. It belongs to the Criminal Law. In the same way numerous presumptions as to rights of property (in particular easements and incorporeal hereditaments) belong not to the Law of Evidence but to the Law of Real Property. The only presumptions which, in my opinion, ought to find a place in the Law of Evidence, are those which relate to facts merely as facts, and apart from the particular rights which they constitute. Thus the rule, that a man not heard of for seven years is presumed to be dead, might be equally applicable to a dispute as to the validity of a marriage, an action of ejectment by a reversioner against a tenant pur aider vie, the admissibility of a declaration against interest, and many other subjects. After careful consideration, I have put a few presumptions of this kind into a chapter on the subject, and have passed over the rest as belonging to different branches of the Sub- stantive Law. Practice, again, appears to me to differ in kind from the Law of Evidence. The rules which point out the manner in which the attendance of witnesses is to be procured, evidence is to be taken on commission, depositions are to be authenticated and forwarded to the proper officers, interrogatories are to be administered, &c, have' little to do with the general principles which regulate the relevancy and proof of matters of fact. Their proper place would be found in codes of civil and criminal procedure. I have however noticed a fe of the most important of these matters. A similar remark applies to a great mass of provisions as to the proof of certain particulars. Under the head of " Public Docu- ments," Mr. Taylor gives amongst other things a list of all, or most, of the statutory provisions which render certificates or certified copies admissible in particular cases. To take an illustration at random, section 1458 begins thus : " The INTRODUCTION. registration of medical practitioners under the Medical Act of 1858, may be proved by a copy of the ' Medical Register,' for the time being, purporting," &c. I do not wish for a moment to undervalue the practical utility of such information, or the industry displayed in collecting it ; but such a provision as this appears to me to belong not to the Law of Evidence, but to the law relating to medical men. It is matter rather for an index or schedule than for a legal treatise, intended to be studied, understood, and borne in mind in practice. On several other points the distinction between the Law of Evi- dence and other branches of the law is more difficult to trace. For instance, the law of estoppel, and the law relating to the interpre- tation of written instruments, both run into the Law of Evidence. I have tried to draw the line in the case of estoppels by dealing with estoppels in pais only, to the exclusion of estoppels by deed and by matter of record, which must be pleaded as such ; and in regard to the law of written instruments by stating those rules only which seemed to me to bear directly on the question whether a document can be supplemented or explained by oral evidence. The result is no doubt to make the statement of the law much shorter than is usual. I hope, however, that competent judges will find that, as far as it goes, the statement is both full and correct. As to brevity, I may say, in the words of Lord Mansfield :— " The law does not consist of particular cases, but of general principles which are illustrated and explained by these cases." ' Every one will express somewhat differently the principles which he draws from a number of illustrations, and this is one source of that quality of our law which those who dislike it describe as vague- ness and uncertainty, and those who like it as elasticity. I dislike the quality in question, and I used to think that it would be an improvement if the law were once for all enacted in a distinct form by the Legislature, and were definitely altered from time to time as occasion required. Fur many years I did my utmost to get others to take the same view of the subject, but I am now convinced by 1 7?. v. Bembridge, 3 Doug. 332. INTRODUCTION. experience that the unwillingness of the Legislature to undertake such an operation proceeds from a want of confidence in its power to deal with such subjects, which is neither unnatural nor un- founded. It would be as impossible to get in Parliament a really- satisfactory discussion of a Bill codifying the Law of Evidence as to get a committee of the whole House to paint a picture. It would, I am equally well satisfied, be quite as difficult at present to get Par- liament to delegate its powers to persons capable of exercising them properly. In the meanwhile the Courts can decide only upon cases as they actually occur, and generations may pass before a doubt is set at rest by a judicial decision expressly in point. Hence, if any- thing considerable is to be done towards the reduction of the law to a system, it must, at present at least, be done by private writers. Legislation proper is, under favorable conditions, the best way of making the law, but if that is not to be had, indirect legislation, the influence on the law of judges and legal writers who deduce, from a mass of precedents, such principles and rules as appear to them to be suggested by the great bulk of the authorities, and to be in them- selves rational and convenient, is very much better than none at all It has, indeed, special advantages, which this is not the place to insist upon. I do not think the law can be in a less creditable con- dition than that of an enormous mass of isolated decisions, and statutes assuming unstated principles ; cases and statutes alike being accessible only by elaborate indexes. I insist upon this because I am well aware of the prejudice which exists against all attempts to state the law simply, and of the rooted belief which exists in the minds of many lawyers that all general propositions of law must be misleading, and delusive, and that law books are useless except as indexes. An ancient maxim says " Omnis clcfinitio in jure pcricit- losa." Lord Coke wrote, " It is ever good to rely upon the books at large ; for many times compendia sunt dispendia, and Melius est petere fofites quam sectari rivtitos." Mr. Smith chose this expression as the motto of his 'Leading Cases,' and the sentiment which it em- bodies has exercised immense influence over our law, It has not INTRODUCTION. perhaps been sufficiently observed that when Coke wrote, the "books at large," namely the ' Year Books ' and a very few more modern reports, contained probably about as much matter as two, or at most three, years of the reports published by the Council of Law Report- ing ; and that the compendia (such books, say, as Fitzherbert's 'Abridgment') were merely abridgments of the cases in the 'Year Books' classified in the roughest possible manner, and much inferior both in extent and arrangement to such a book as Fisher's ' Digest.' ' In our own days it appears to me that the true fontes are not to be found in reported cases, but in the rules and principles which such cases imply, and that the cases themselves are the rivtili, the follow- ing of which is a dispendium. My attempt in this work has been emphatically petere fo?ites, to reduce an important branch of the law to the form of a connected system of intelligible rules and principles. Should the undertaking be favorably received by the profession and the public, I hope to apply the same process to some other branches of the law ; for the more I study and practice it, the more firmly am I convinced of the excellence of its substance and the defects of its form. Our earlier writers, from Coke to Blackstone, fell into the error of asserting the excellence of its substance in an exaggerated strain, whilst they showed much insensibility to defects, both of substance and form, which in their time were grievous and glaring. Bentham seems to me in many points to have fallen into the converse error. He was too keen and bitter a critic to recognise the substantial merits of the system which he attacked ; and it is obvious to me that he had not that mastery of the law itself which is unattainable by mere theoretical study, even if the student is, as 1 Since the beginning of 1865 the Council has published eighty-six \olumes of Reports. The Year Books from 1307— 1535, 228 years, would fill not more than twenty-five such volumes. There are also ten volumes of Statutes since 1865 (May, 1876). There are now (Feb., 1877) at least ninety-three volumes of Reports and eleven volumes of Statutes. There are now 154 volumes of Reports and twenty-three of Statutes (1887). INTRODUCTION. Bentham certainly was, a man of talent, approaching closely to genius. During the last generation or more Bentham's influence has to some extent declined, partly because some of his books are like exploded shells, buried under the ruins which they have made, and partly because under the influence of some of the most distinguished of living authors, great attention has been directed to legal history, and in particular to the study of Roman Law. It would be difficult to exaggerate the value of these studies, but their nature and use are liable to be misunderstood. This history of the Roman Law no doubt throws great light on the history of our own; and the compari- son of the two great bodies of law, under one or the other of which the laws of the civilized world may be classified, cannot fail to be instructive ; but the history of bygone institutions is valuable mainly because it enables us to understand, and so to improve existing insti- tutions. It would be a complete mistake to suppose either that the Roman Law is in substance wiser than our own, or that in point of arrangement and method the Institutes and the Digest are anything but warnings. The pseudo-philosophy of the Institutes, and the confusion of the Digest, are, to my mind, infinitely more objection- able than the absence of arrangement and of all general theories, good or bad, which distinguish the Law of England. However this may be, I trust the present work will show that the law of England on the subject to which it refers is full of sagacity and practical experience, and is capable of being thrown into a form at once plain, short, and systematic. I wish, in conclusion, to direct attention to the manner in which I have dealt with such parts of the Statute Law as are embodied in this work. I have given, not the very words of the enactments referred to, but what I understand to be their effect, though in doing so I have deviated as little as possible from the actual words employed. I have done this in order to make it easier to study the subject as a whole. Every Act of Parliament which relates to the Law of Evi- dence assumes the existence of the unwritten law. It cannot, there- INTRODUCTION. fore, be fully understood, nor can its relation to other parts of the law be appreciated, till the unwritten law has been written down so that the provisions of particular statutes may take their places as parts of it. When this is done, the Statute Law itself admits of, and even requires, very great abridgment. In many cases the result of a number of separate enactments may be stated in a line or two. For instance, the old Common Law as to the incompetency of certain classes of witnesses was removed by parts of six different Acts of Parliament, — the net result of which is given in five short Articles ^106-110). So, too, the doctrine of incompetency for peculiar or defective ,eligious belief has been removed by many different enactments the effect of which is shown in one Article (123). The various enactments relating to documentary evidence (see Chap. X.) appear to me to become easy to follow and to appreciate, when they are put in their proper places in a general scheme of the law, and arranged according to their subject-matter. By rejecting every part of an Act of Parliament except the actual operative words which constitute its addition to the law, and by setting it (so to speak) in a definite statement of the unwritten law of which it as- sumes the existence, it is possible to combine brevity with substantial accuracy and fulness of statement to an extent which would surprise those who are acquainted with Acts of Parliament only as they stand in the Statute Book. 1 At the same time I should warn any one who may use this book for the purposes of actual practice in or out of court, that he would do well to refer to the very words of the statutes embodied in it. It is very possible that, in stating their effect instead of their actual words, I may have given in some par- ticulars a mistaken view of their meaning. Such are the means by which I have endeavored to make a state- 1 Twenty Articles of this work represent all that is material in the ten Acts of Parliament, containing sixty-six sections, which have been passed on the subject to which it refers. For the detailed proof of this, see Note XLYIII. [Appendix], INTRODUCTION. ment of the Law of Evidence which will enable not only students of law, but I hope any intelligent person who cares enough about the subject to study attentively what I have written, to obtain from it a knowledge of that subject at once comprehensive and exact, — a knowledge which would enable him to follow in an intelligent man- ner the proceedings of Courts of Justice, and which would enable him to study cases and use text-books of the common kind with readiness and ease. I do not say more than this. I have not attempted to follow the matter out into its minute ramifications, and I have avoided reference to what after all are little more than matters of curiosity. I think, however, that any one who makes himself thoroughly acquainted with the contents of this book, will know fully and accurately all the leading principles and rules of evidence which occur in actual practice. If I am entitled to generalise at all from my own experience, I think that even those who are already well acquainted with the subject will find that they understand the relations of its different parts, and therefore the parts themselves more completely than they otherwise would, by being enabled to take them in at one view, and to consider them in their relation to each other. TABLE OF CASES CITED. PAGE Abbott v. Heath 47 v. People 20 Abeel v. Van Gelder 61 Abercrombie v. Sheldon 32 Abington v. Duxbury 256 Abouloff v. Oppenheimer 138, 368 Abrath v. N. E. Ry 242, 252 Accola v. Chicago, etc. R. Co 171 Ackerson v. People 75, 76 Adae v. Zangs 342, 343 Adams v. Adams 119 v . Cowles 136 v. Davidson , 62 v. Greenwich Ins. Co 337 v. Lawson 161 v. Lloyd 293 v. O'Connor 184 v, Olin. . 92 v. People 22, 142 v. Pittsburgh Ins. Co 19, 305 v. Porter 293 v. State 274, 276, 331 v. Sullivan 190 v. Swansea 104 v. Way . 169 v . Wheeler 329 Adie v. Clark 229 Adler-Goldman v. Adams Exp. Co.. 73 iEtna Life Ins. Co. v. Ward 238, 250 A. G. v. Bryant 283 v. Hitchcock 324, 325 Agan v. Hey 281 Agnew v. U. S 243 Agricultural Ins. Co. v. Keeler 70 Aikin v. Martin 193, 315 Akers v. Demond 312 Ala. etc. R. Co. v. Frazier 303 Ala. Fertilizing Co. v. Reynolds — 176 Ala. Southern R. Co. v. Hill 176 v. Mt. Vernon Co 191 Albany Co. Sav. Bk. v. McCarty 240 Albany, etc. R. Co. v. Lundberg 36 PAGE Albert v. Nor. Central R. Co 40 Alberti v. N. Y. etc. R. Co 293 Alberts v. Vernon 38 Alden v. Goddard 289 Aldous v. Cornwell 21;, 218 Alexander v. Chamberlain 105 v. Comm 20 v. Kaiser 324 v . Pennsylvania Co 146 y.U.S 29,288 Alivon v. Furnival 188 Alger v. Andrews 63 Allans. Dundas 119 Allegheny Co. Workhouse v. Moore. 65 Allen, Appeal of 281 v. Allen 239 v. Chouteau .. in v. Furbish 223 v . Killinger 73 v. Kirk 59 v. Pink 227 v. Shaw 264 v. State 276 v. U. S 23,263 v . Withrow 218, 240 Allgood v. Blake 376 Allison v. Chapman 14° v. Coal Co 327 v. Comm 87, 88 v. Whittier. 122 Allison's Case 124 Alner v. George 361 Alpin v. Morton 45 Alschulerw. Schiff 223 Alston v. State 83 Alvord v . Collin 342 Ambler v. Whipple 140 American Bible Soc. v. Pratt 230 Amer. Ex. Nat. Bk. v. N. Y. Belting Co 244 Amer. Express Co. v. Patterson 161 American Ins. Co. v. Hazen 160 XXX TABLE OF CASES CITED. PAGE American Life Ins. Co. v. Rosenagle 146, 188, 197 American Nat. Bk. v. Bushey 165 Ames v . Brown , 215 v. Quimby 36 Amherst Bk. v. Root 153 Amidon v. Hosley 336 Amos v. Amos 219 Amoskeag Co. v. Head 7 Anchor Milling Co. v. Walsh 93 Anderson v. Edwards 91 v. How 252 v. McCormick 17, 167,262 v. Moore 223 v. Read 265 v. Rome, etc. R. Co 65 v. State 134 v. Weston 210 Andrews v. ^Etna Ins. Co 264 v . Dyer 229 v. Flack 202 v. Hayden's Admr 154 v, Knox Co 173 v. Ohio, etc. R. Co 296 v. U.S 6 Aneals v. People 326 Angell v. Duke 226 v. Pickard 1 76 Angle v. Life Ins. Co 214 218 Anglo-American Co. v. Cannon 179 Angus v. Dalton 259 Anheuser-Busch Ass'nz/. Hutmacher 180 Ankersmit v. Tuch 327 Annesley v. Anglesea 291 Anonymous 177, 297, 309 Ansley v. Meikle 206 Anson v. People 43 Anthony v. Harrison 212, 221 Appel v. Byers 233 Apperson v. Dowdy 99 Applegate v. Lexington, etc. Mining Co 213 Appletonf. Braybrook 373 Armoury v. Delamirie 249 Arms v. M iddleton 91 Armstrong v. Ackley 56 v. Armstrong 247 v. Granite Co 224 v. Potter 66 v. State 247 v. U. S 112, 169 PAGE Arnd v. Ambling 272 Arnold v. Chesebrough 296, 315 v. Pawtuxet Co 193 Arnott v. Hayes 394 Arnstine v. Treat 192 Aron v . Chaffe 118 Arthur v. James 74 Artz v. Railroad Co 329 Ashland v. Marlborough 47 Ashtabula v. Bartram 38 Askew v. Steiner 195" Atchison, etc. R. Co. v. Feehan..327, 328 v. Headland 165 v. Johns 47 v. Stanford 40, 317 v. Thul 177 v. Wilkinson 70, 143 Atkins v. Anderson 122 Atkinson v. Goodrich Transp. Co. . . 243 v. Linden Co 174 v. Morris 101 v. Truesdell 228 Atlanta Journal v. Mayson 239 Atlanta R. Co. v. Walker 48 Atlantic Ins. Co. v. Fitzpatrick 312 Attorney Gen'l v . Bradlaugh 272, 307 Atwell v. Miller 194 Atwood v. Barney 92 v. Dearborn 338 v. Impson 335 v. Scott 32 Audenried v. Betteley 265 Augusta v. Windsor 91 Aulls v. Young 117 Aultman v. Ritter 179 v. Timm 263 Austin, In re 289 v. Holland 54, 262 v. Remington 45 v. State 317 v. Thompson 344 v. Vrooman 135 Averill v. Sawyer 222 Avery v. Maude 167 A veson v. Lord Kinnaird 48 Ayer v. Bell Mfg. Co 222 v. Colgrove 340 v. Tel. Co 180 Ayers v. Hewett 185 v. State 302 < ■. Watson 327, 332 TABLE OF CASES CITED. PAGE Ayers v. Weed 231 Aylesford Peerage Case 24,256,257 Ay res v. Hubbard 65 Babcock v. Booth 278 v. Fitchburg R. Co 4 Baccio v. People 24, 25 Backus v. Sternberg 222 v. Taylor 265 Bacon v. Chesney 71 v. Frisbie 287 Bacon's Will, In re 233 Badder v. Kiefer 319 Badger v. Titcomb 124 Bagley v. McMickle 188 Bagley Elev. Co. v . Amer. Exp. Co.. 246 Bahr v. Lombard 244 Bailey v. Bidwell 184 v. Corliss 69 v. Kalamazoo Pub'g Co 171 v. Rome, etc. R. Co 50 v. Woods no Bain v. Cushman 143 Baird v. Abbey 239 v. Baird 221 v. Daly 41 v. Gillett 31 v. U. S 121 Baker v. Gausin 9 v. Palmer 140 v. Pike 192, 193 v. Stackpole 66 v. Taylor 95 v. Thompson 281 Balbo v. People 78 Baldwin v. Bricker 116 v. Parker 247 Bales v. State 116 Ball v. Chancellor 132 Ballew v. U. S 198, 318 Balliett v. Fink 184 Ballinger v. Davis 182 Ballman v. Heron 108 Baltimore v. State itfi Baltimore Elevator Co. v. Neal 37 Baltimore, etc. Ass'n v. Post 65 Baltimore & O. R. Co. v. Campbell. 70 v. Wilkens 269 Banfield v. Whipple 21 Banister v. Ovit 277 Bank v. Fordyce 232 PAGE Bank v. Kennedy 224 v. Kingsley 171 v. Sargent 218 Bank of Batavia v. N. Y. etc. R. Co. 269 Bank of Brighton v. Smith 70 Bank of Hindustan, etc., Allison's Case 124 Bank of Ireland v. Evans 379 Bank of Monroe v. Culver 91 v. Gifford 108 Bank of Montreal v. Richter 244 Bank of Oswego v.- Babcock 131 Bank of Utica v. Hillard 296 v. Mersereau 288 Barber v. St. Louis, etc. R. Co 10 Barber's Admr. v. Bennett 60, 6i Barber's Appeal 27, 147, 247 Barbie v. Goodale 221 Barhydt v. Alexander 169 Barker v. Binninger 60 v. Haskell 93 v. Hebbard 271 v. Jones 263 v. Kuhn 291 Barkley v. Copeland 321, 338 Barlow v. Buckingham 220 v. Steel 202 Barmby v. Plummer 187 Barnard v. Barlow 229 v. Campbell 265 v. Gantz .211, 254 v. Kellogg 224 Barnes v. Barnes , 241 v. Harris 290 v. Keene 28, 31 Barnett v. Abbott 212 v. People 109 v. State 25, 301 Barnewall v. Murrell 185, 246 Barney v. Rickard 34 Barnum v. Barnum 105, 106, 312 v. Reed 240 Baro'n de Bode's Case 145 Barrett v . Hammond 39 v. James 281 v. Long 45 Barrows v. Downs 146 Bans v. Jackson 123 Barry v. Hamburg Ins. Co 221 v. Ryan 181 Bartholomew v. Farwell 91 TABLE OF CASES CITED. PAGE Bartholomew v. People 274, 325 Bartlett v. Boston Gas Co 130 v. Patton 95 v. Tarbox 74 Bartley v. People 78 v. Phillips 176 Barton v. Dawes 225 v. Gray 223 v. Kane 194 Bascom v. Manning 121 Bass v. State 109 Bassett v. Ct. Riv. R. Co 120 v. Crafts 119 v. Shares 5° v. U. S 277 Bateman v . Bailey 26 v. Miller 136 Bates v. Barber 336 v. Morris 3 J 4 v. Preble 343 v. State 321 v. Swiger 264 Bathrick v. Detroit Post Co 161 Battle v. Baird 184 v. State 34i Battles v. Fobes 220 v. Laudenslager 160 v. Tallman 343 Bauer, In re 289 Bauerman v. Radenius 361 Baughmant'. Baughman 142 Baulecz'. N. Y. etc. R. Co 37,5° Baxendale v. Bennett 266 Baxters. Abbott 33.246 v. Doe 4 1 v. New Eng. Ins. Co 127 Baylis v. A. G 232 Bayliss v. Cockciroft : 176 Bays v. Trulson 129 Beaconsfield, The 131 Beadles v. Alexander 100 Beakes V. Dacunha 53 Beal v. Nichols 315 Beaman v. Russell 217 Bean v. Tonnele 32 Beard v. Ryan 214 v. State 5° Beardsley v. Day 211 Bearss v. Copley 64 Beason v. State 274 Beatrice Gas Co. v. Thomas 41 PAGE Beatson v. Skene 282 Beattie v. Delaware, etc. R. Co 53 v. Billiard 188 Beatty v. Trustees 232 Beauchaine v. McKinnon 132 Beaudette v. Gagne 74, 317 Beazley v. Denson 246 Becker v. Koch 329, 330 v. Phila. etc. R. Co 37 Beckett v. Ramsdale 304 Bedgood v. State 339 Beebe v. Knapp 73 Beeler v. Webb 14 Beeston : s Case ill Beggarly v. State 79 Behler v. State 83 Behrens v. Behrens 99 v. Germania Ins. Co 239 Behrensmeyer v. Kreitz 120 Beldenz\ Allen 319 v . State 130 Belfast Bk. v . Harriman 218 Belknap v. Nat. Bk. of N. America.. 265 Bell v. Brewster 213 v. Kendrick 113 v, Kennedy 218 v. McGuinness 239 v. Merrifield 125, 130 v. Morrison 67 Bellamy v. State 245 Bellefontaine, etc. R. Co. v. Bailey. . 148 Beloit v. Morgan » 121 Bemis v. Temple 38 Benedict v. Cowden 214 v. State 290 Beneway v. Thorp 45 Benham v. State 34° Benjamin v. Rogers 63 v. Smith 60 Bennett v. Cadwell's Excr 147 -•.Camp 61 v. Clemence 144 v. Edwards 3 1 1 ' v. Hood 121 v. State 148, 248 Benson v. Clark 170 v. Shortwell 108 v. State 19. 79 v. Titcomb 252 v. U.S 276,316 Benstinez'. State 339 TABLE OF CASES CITED. XXXUl PAGE Benton v. Coram 273 v. Starr 24, 301 Berdan v. Greenwood 309 Berg v. Peterson 152 Bergen v. State tog Bergwin v. Bishop 216 Berkeley Peerage Case 106, 366 Berneker v. State 159 Berney v. Dinsmore 36, 249 v. Mitchell 108, 109 Bernheim v. Dibrell 314 Berry v. Raddin 17 Berwind v. Greenwich Co 249 Best v. Hammond 230 Bethea v. Byrd 101 Bethlehem v. Watertown 123 Beuerlien v. O'Leary 44 Biddies. Bond 268 Bigelow v. Foss 60 v. Gillott. 217 v. Hall 342 v. Sickles 278 v. Stilphens 215 Bigler v. Reyher 292 Bigley v. Williams 9 Billingslea v. Smith 342 Binck v. Wood 125 Binford v. Young 74 Bingel v. Volz 229 Birch v. Hall 327 Bird v. Co mm 164 v. Hueston 95 Birdseye v. Butterfield 317 Birmingham v. Anderson 101 Birmingham R. Co. v. Alexander 38 Birmingham Union R. Co. v. Hall. . 238 Birt v. Barlow 155 Bischoff v. Wetherel .' 140 Biscoe v. State 77. 81 Bishop v. Amer. Preservers' Co 187 Bissell v. Adams 66 v. Campbell 19, 305 v. Cornell 337 v. Hamblin 113 v. Kellogg 130 v. Saxton 70 Bissing v. Smith 172 Bitner v . Boone 279 Bixby v. Carskaddon 200, 242 Bizer v. Ottumwa Co 123 Black 7'. Bachelder 220 PAGE Black v. Miller 281 v. Sharkey 212 v . Woodrow 109 Blackburn v. Crawfdrds 94, 106, 289 v. State 75 Blackett v. Royal Exchange Co 232 Blackington v. Johnson 315 v. Rockland 178 Blaeser v . Milwaukee Ins. Co 239 Blagborne v. Hunger 223 Blain v. Blain 129 Blair v. Bartlett 125 v. Ellsworth 110 v. Seaver 272 Blaisdell v. Bickum 105 v. Pray 136 Blake v. Albion Life Assurance Co . 53, 54 v. Griswold 143 v. People 176 v . Sawin 183 v. Stump 318 v. Taylor 240 Blaker v. State 245 Blakeslee v. Hughes 161 Blanchard v. Brown 122 v. Hodgkins 26 v. Steamboat Co 36 Blatz v . Rohrbach 172 Bleecker v. Johnston 314 Blewitt v. Boorum 222 Bliss v. Brainard 252 v. Johnson 46 v. N. Y. Cent. R. Co 124 Block v. Dorman 67 Bloomington v. Legg 34 v. Osterlee 40, 313 v. Shrock 116 Bloor v. Delafield 38 Blough v. Parry 331 Blount v. Kimpton 287 Blum v . Jones 116 Board of Commrs. v. Leggett 48 v. O'Connor 337 Board of Trustees v. Misenheimer. . 152 Boardman v. Woodman 56, 160 Bodman v. Amer. Tract Soc 231 Bodwell v. Heaton 240 Boehl v. Chicago, etc. R. Co 246 Bogardus v. Trinity Church 17, 114 Boggess v. Read » 4 Boggs v. Taylor 229 TABLE OF CASES CITED. PAGE Bogie v . Nolan 58, 254 Bogle's Excrs. v. Kreitzer 335 Bohan v . Avoca Borough 317 Boies v. Hartford, etc. R. Co 246 Boiling z/.'Speller 137 v. State 248 Bollinger v. Gallagher 146 Bolton v. Schriever 119, 135, 137 Bond v . Fitzpatrick 63, 64 v. Markstrum 121 Bond's Appeal 229 Bonelli, In the Goods of 147 Bonesteel v. Lynde 193, 194, 294 Bonnell v. Mawha 93 Bonner v. State 15 Bonnet v. Glattfeldt 341 Bonnie v. Earl 303 Bonynge v. Field 37 Bookhout v. State 340 Bookman v. N. Y. El. R. Co 173 v. Stegman 312 Boomer v. Laine 281 Booth v. Powers 214,218 v. Robinson 221 Boothbay v. Giles 211 Boren v . State 248 Borst v. Empie 181 Boscowitz, Ex parte 297 Boston v. Richardson 17, 213. 355 v. Worthington 132 Boston, etc. Co. v. Hanlon 102 v. Shanley 241 B. & M. R. Co. v. Ordway 70 Boston & W. R. Co. v. Dana 30, 189 Boston Relief Co. v. Burnett 242 Bottles v. Miller 69 Boulden v. Mclntire 241 v. State 89 Bouldin v. Alexander 119 Bourne v. Buffington 192 Bovee v. Danville 252 Bow v. People 307 Bowdle i'. Railway Co 272 Bowe v. Wilkins 120 Bowen v. Chase 61 v. Mo. Pac. R. Co 173 Bowers v. Wood 256 Bowles v. Bingham 256 Bowling v. Hax 183 Bowman v. Patrick 280 Bowyer v. Schofield 129 PAGE Boyce v. Cheshire R. Co 40 Boyd v. Conshohocken Mills 317 v. Jones 63 v. Paul 220 v. State 325 v. U.S 35.273. 294 Boyer v. Rhinehart 38 Boyerstown Nat. Bk. v. Hartman... 240 Boy kin v. Boykin 256 Boylan v. Meeker 55, 100 Boyle v. Smithman 294 v. State 86, 116, 317 Boynton v. Boynton 194 Boyse, In re 309 v. Rossborough 30 Brachman v. Hall 153 Brackett v. Barney 222 v. People 122 Bradford v. People 155 v. Randall 212 v. State 77 Bradlaugh, Re 275 Bradley v. Beetle. . 123 v. Bradley 124 v. Brigham 126 v. Hartford, etc. Ins. Co 38 v . James 96 v. Mirick no, in, 316 v. Rees 231 v. Welch 138 Bradshaw v. Combs 319 Bradstreet v. Rich 226 Brady v. Nally 221, 236 v. State 288 Brague v. Lord 271 Brahe v. Kimball 71 Brain v. Preece 94 Bram v. U. S 78 Branch v. Libbey 39 Brand v. Johnrowe 216 Brandt v. Klein 187 Branson v. Caruthers 282 Brassington v. Brassington 295 Braunschweiger v. Waits 238 Brawley v. U. S 229 Bray v. Doheny 68 v . Flickinger 264 Brazill v. Isham 129 Breen v. N. Y. C. R. Co 250 Bremner v. Newcastle 38 Brennan v. Friendship 51 TABLE OF CASES CITED. PAGE Brennan v. Hall 95 Bressler v. People 286, 328 Breton v. Cope 182 Brewers. Porch 329 Brewing Co. v. Bauer 34 Brewster v. Doane 91 Brice v. Bauer 74 Brick v. Brick 224 Bricker v. Stroud 268 Bride v. Clark 205 Bridgeport Ins. Co. v. Wilson 132 Bridgewater v. Plymouth 284 v. Roxbury 91 Brierly v. Davoll Mills 38 Briesenmeister v. Knights 293 Briffit v. State 172 Brigg v. Hilton 224 Briggs v. Rafferty 91 v. Smith 281 Brigham v. Fayerweather 127, 133 v . Palmer 183 Bright v. Young 184 Brighthope R. Co. v. Rogers 41 Brim v. Fleming 218 Bristow v. Sequeville 147 Brittain v. Kinnaird 13$ Britton v. Thornton 123 Broad v. Pitt 384 Brockley v. Brockley 68 Brogy v. Comm 109 Brolley v. Lapham 212 Bronner v. Frauenthal 28 Bronson v. Gleason 170 v. Leach 328 Brooke v. N. Y. etc. R. Co 269 Brookin v. State 30$ Brooks v. Belfast, etc. R. Co 59 v. Brooks 45 v. Goss 62 v. Weeks 331 Brookville v. Arthurs 132 Broschart v. Tuttle 74 Brothers v. Jasper 285 Brotherton v. Brotherton 311 v. People 87 Brough v. Lord Scarsdale 18 Broult v. Hanson 238 Brower v. Bowers 233 Brown, Ex parte 193, 297 v . Barnes 45 v. Brown 232, 280 PAGE Brown v. Calumet Riv. R. Co 329 v. Comm 23, 35, 87, 276, 347, 364 v. Eastern, etc. R. Co 38 v. Eaton 139 v. First Nat. Bk 218 v. Foster 290 v. Galesburg Brick Co '. . . . 342 v. Gallaudet 121 v. Grant 265 v. Jewett 289 v. Keny on 57 v. Kimball 181 v. Littlefield 192 v. Mailler 60, 72 v. Mass. Ins. Co 176 v. Mooers 337 v. Oldham 185 v. Piper 168 v . Powell Co 269 v. State 27, 315, 327, 339 »-U.S 335 v. Walker 297 v. Wright 147 Brownell v. Palmer 261 Browning v. Gosnell 329 Brubaker's Admr. v. Taylor 330 Bruce v. Nicolopulo 188 v. Priest 160 v. Roper Co 236 v . Slemp 224 v . State 205 v . Westcott 218 Brungger v. Smith 290 Brunsden v. Humphrey 124 Bruschke v. N. Chicago Verein 139 Bryan v. Forsyth 206 v. Scholl 170 Buchanan v. Hubbard 147 Buchanon v. Adams 224 Buck v. Pa. R. Co 246, 250 v. Wilson i2r Buckley v. Silverberg 324 Buddz'. MeridenElec. R. Co 318 Buell v. State 167 v. Van Camp 311 Buffalo, etc. Loan Co. v. Knights Templar Ass'n 62 Buff urn v. Jones 141 v. Ramsdell 137 Bulkley v. Devine 350 Bull v. Loveland 294, 295, 299 TABLE OF CASES CITED. PAGE Bullard v. Creditors 239 v. Pearsall 330 Bullis v. East on 189 Bullock v. Knox 255 Bundy v. Bruce 66 Bunker v. Barron 224 Bunnell v. Butler 337 Burckhalter v. Coward 239 Burdell v. Taylor 153 Burdett v. May 240 Burdette v. Coram 321, 325 Burdge v. State 77 Burdick, In re 137 v. Hunt 285 v. Norwich 130 Burdict v. Mo. Pac. R. Co 147 Burg v . Chicago, etc. R. Co 116 Burgess v. Langley 284 Burke v. Delaney 222 v. Kaley 32 v. Lacock 168 v. Mascarich 174 v. Miltenburger 169 Burlen v. Shannon 119, 130, 134 Burley v. German-American Bk 93 Burlington Lumber Co. v. White- breast Co 187 Burnaby v. Baillie 256 Burnell v. Weld 202 Burnham v. Allen 243 v. Brennan 62 v. Dorr 221, 236 v. Heselton 254 v. Morrissey 294 Burns v. Fidelity Co. 223 v. Thompson 236 Burritt/'. Belfy 125 Burrows v. Klunk ^18, 266 Bursill v. Tanner 295 Burt v. Panjaud 249 v. Place 118 z\ State 24 i\ Winona, etc. R. Co [65 Burton v. Driggs 188, 189, 195 v. State 85 Burwell v. Sneed 1 1 S Buse v. Page 336 Bush ?'. Barrett 250 -■. Coram 273 v. Roberts 63 v. Stow ell 67 TAGE Busson v. Forsythe 107 Buswell v. Fuller 246 v. Lincks 27 Buswell Trimmer Co. v. Case 31 Butler v. Gale 232 v. Millett 59 v. Moore 3S3 v. St. Louis Ins. Co 95 v. Watkins 42 Butrick v. Tilton 212 Button v. Amer. Tjact Soc 230 v. Frink •. 242 Buxton v . Edwards 66, 67 v. Somerset Works 1.45 Byass v. Sullivan 294 Byers v. Hoppe 99 v. Wallace 104 By rd v. Jones 63 Byrne v. Boadle 250 Caddy v. Barlow 118 Cadell v. Allen 211 Cadman v. Peter 240 Cady v. Walker 289 Caermarthen R. Co. v. Manchester R. Co 71 Cagger v. Lansing 17 Caha v. U. S 167 Cahen v. Continental Ins. Co 1S7 Cahill v. Cincinnati R. Co 252 Calm v. Cahn 177 Cake v. Shull 240 Calderon v. O'Donahue 315 Calkins, In re 48 v . Hartford 39 Call v. Dunning 183 Callender v. Callender 74 Calloway v. Varner 342 Calvert v. Flower 344 v. Friebus 2S1 Calypso, The 133 Camden v. Belgrade 187 Cameron v. Blackman 165 v. Bryan 45, 50 v. Peck 186 Camp v. Cm- 233 Campbell v. Brown 67 v. Campbell 328 v. Chace 280 v. Hall 126 v . Hoff 244 TABLE OF CASES CITED. PAGE Campbell v. Johnston 193 v. Kalamazoo 39 v. Mo. Pac. R. Co 40 v. People 75, 302 v. Rankin 120 Canaday v. Krum 31 Canajoharie Nat. Bk. v. Diefendorf . 244 Canal Co. v. Ray 223 Cancemi v. People 158 Cannaday v. Lynch 272 Cannon v. People 20,141 Card v . Card 271 v. Foot 273, 274, 341 Carey v. Bright 232 v. Hart 317 Carland v. Cunningham 187, 195 Carleton v. Lombard 132 Carlson v. Winterson 335 Carlton v. People 248 Carnes v. Crandall 106 v. Piatt 291 v. White 72 Carney v. Gleissner 277 Carpenter v. Cohoes 115 ». Dame 191 v. Dexter 164 v. Eastern Trans. Co 148 v. First Nat . Bk 242, 243 v. Grand Trunk R. Co 147 v. Sheldon 69 Carr v. Coke 165 v. L. & N. W. Railway 379 v. Moore 36 v. State 238, 273, 276 Carrington v. St. Louis 293 Carroll v. Carroll 133 v. Deimel 32 v. M. &R. R. Corp 264 v. Peake 179 v. Sprague 289 z'. State 320 Carruthers v. McMurray 223 Carter v. Boehm 144 v. Fishing Co 259 v. Montgomery 106 v. State 274 v . Thurston 144 v. West 290 Carthage Co. v. Andrews 47, 142 Carthaus v. State 159 Cartier v. Troy Lumber Co 187 PAGE Cartwright v. Green 298 Carver v. State 341 v. United States 87, 88 Case v. Huey 202 v. Kelly 163 v. Marks 161 v. Perew 50, 171 Casoni v. Jerome 218 Cassady v. Trustees 108, 113 Castner v. Sliker 9, 142 Castor v. Davis 241 Castrique v. Imrie. . .126, 133, 139, 145,368 Catherwood v. Caslon 155 Cattison v. Cattison 27 Caujolle v. Ferrie 106,123 Caulfield v. Hermann 220 v. Sullivan 137 Cavallaro v. Texas, etc. R. Co 147 Cavanaugh v. Austin 45 Caverno v. Jones 20 Caylus v. N. Y.-etc. R. Co 126 C. B. U. P. R. Co. v. Andrews 282 Cecil Bk. v. Snively 224 Celluloid Mf'gCo. v. Arlington Mf'g Co 316 Central Bk. v. Allen 194 Central Branch, etc. R. Co. v . Shoup 59 Central Bridge Corp. v. Butler 243 Central, etc. R. Co. v. Rockafellow.. 307 Central R. Co. v. Allmon 328 v. Dodd 337 v. Murray 109 Central Sav. Bk. v. Baltimore 163 Chadsey v. Gre*ne 73 Chadwick v. Fonner 60 v. U. S 194 Chaffee v. Taylor 152 v. U. S 90, 91, 94 Chamberlain v. Carlisle 118, 129 v. Enfield 50 v. Piatt 141 v. Sands 342 v. Vance 45 Chamberlin v. Ball 200 v. Ossipee 341 Chambers v. Bernasconi 94 v. Hunt 312 Champlin v. Stoddart 294 Chandler v. Le Barron 15^ Chapin v. Chicago, etc. R. Co 222 Chapman v. Chapman 10O KXXVI11 TABLE OF CASES CITED. PAGE Chapman v. Rose 264 v. Twitchell 73, 101 v. Wilber 170 Chappell, In re 234 Charles Morgan, The 334 Charlton v. Reed 214 v. Unis 328 Charter v. Charter 375 Chase v. Caryl 203 v. Chase 9 v. Horton .*. 62 v. Maine Central R. Co 51, 160 v. Smith 95 v. Spring Vale Mills Co. . . 108, in v. Sycamore, etc. R. Co 114 v. Winans 141 Chase's Appeal 264 Chasemore v. Richards 260 Chateaugay Iron Co. v. Blake 19. 94 Chatfield v. Wilson 260 Cheatham v. State 302 Chelmsford Co. v. Demarest 70 Chemical Light Co. v. Howard 284 Chenango Bridge Co. v. Lewis 91 v. Paige 95 Cheney v. Arnold 120, 183 v. Patton 120 Cherry v. Baker 167 Chesapeake Club v. State 297, 298 Chester v. Wilhelm 330 Chicago v. Gage 218 v. Powers 38 Chicago Lumbering Co. v. Hewitt. . . 94 Chicago, etc. R. Co. v Artery 334 v. Becker 13 v. Chancellor 26 v. Clark 50 i'. Hastings 333 v. Levy 252 v. McBride 250 v. McDaniel 284, 287 i'. McLaughlin 333 V. Nix 143 v. Packet Co 132 v. Trayes 113 t. Van Yleck 142 v. Wolcott 189 Childs v. Jordan 60 v. Merrill 290, 297 Chilton v. People 211 Chisholm v. Beaman Co 93, 94 l'AGE Chism v. State 331 Chrisman v. Chrisman 246 Christianson v. Pioneer Co 10 Christmas v. Russell 140 Christopher St. R. Co. v. 23rd St. R. Co 225, 240 Chrysler v. Renois 190 Chubb v. Gsell 161 v. Salomons 283 Church v. Florence Iron Works 223 v. Howard 62, 69 v. Hubbart ...169, 207 Chute v. State 343 Cihak v. Klekr 176 Cincinnati v. Cameron 311 Citizens' Nat. Bk. v. Williams 215 City of Goshen v. England 38 City of Paterson v . Baker 121 City of Rochester v. Montgomery. . . 132 City of Sandwich v. Dolan 303, 319 City Pass. R. Co. v. Knee ... 338 Claflin v. Dodson 330 v. Fletcher 120 v. Meyer 245 Clapp v. Banking Co 236 Clare v. People 238 Clark, In re 72 v. Baird 143 v. Bradsti eet 32 v. Brown 45, 162 v. Burn 67, 97 v. Clark 142, 254 v. Costello 137 v. Dillon 131 v. Freeman 152 v. Hills 243 v. Little 137 v. Miller 249 v. Morrison 69 v. Murphy 242 v. N. Y. Life Ins. Co 115 v. Owens 107, 213 v. Sigourney 67 v. Yorce 110, 318 v. Woodruff 228 Clason v. Milwaukee 145 Clay ?'. Langslow 362 Clayborn v. Tompkins 136 Clayton v. Lord Nugent 232 v. Wardell 156 Clegg v. Lemessurier 212 TABLE OF CASES CITED. PAGE Clemens v. Meyer 112, 206 Clement v. Bullens 311 v. Packer 101 v. Spear 284 Cleveland v. Bangor 131 v. Hopkins k 138 v. Newsom . . 10 v. N. J. Steamboat Co 39 Cleveland, etc. R. Co. v. Ball 144 v. Mara 10 v. Monaghan 177 v. Newell 34, 47, 48 v. Perkins 179 v. Wynant 38 Clever v. Hilberry 338 Clews v. Kehr 64 v. N. Y. Banking Ass'n 68 Clifford v. Burton 70 v. Drake 342 Clifton v. Granger 340 Cline v. State 336 Clinton v. State 272 Cliquot's Champagne 116 Clodfelter v. Hulett 137 Closmadeuc v. Carrel 210 Closson v . Morrison 216 Clough v. McDaniel 97 Clouser v. Ruckman 60 Cloyes v. Thayer 297 Clune v. U. S 14 Coal Co. v. Brick Co 124 Coates v. Burlington, etc. R. Co. 49, 141 v. Sulan 336 Cobb v. Wells 94 Cobbs v. Fire Ass'n 223 Coble v. State 274 Coburn v. Odell 297 Cochrane v. Libby 107 v. Little 148 Coffee v. State 85 Coffin v. Hydraulic Co 174 v. U. S 238 ^.Vincent 342 Cohen, Ex parte 297 v. Teller 155 Cohn v. Goldman 73 Cohoes v. D. & H. Canal Co 262 Coit v. Churchill 239 v. Haven 136 v. Howd 63 v. Milliken 168 PAGE Coit v. Patchen 30 Colburn v. Groton 74 Cole v. Hills 216 v. Jessup 342 v. Lake Shore, etc. R. Co.. 303,314 v. Sherard 170 v. State 335 Coleman, Re 287 v. Comm 272 v. Dobbins , 165 v. Manhattan Co 229 v. People 43 v. State 314 Coleman's Appeal 130 Collagan v. Burns 99 Collender v. Dinsmore 228 Collier v. Dick 26 Collins v. Ball 216 v. Bayntun 184 v. Collins 156 v. Hydorn 130 v. State 302 v. Stephenson 326 v. Voorhees 156 Collyer v. Collyer 182 Colorado Coal Co. v. U. S 241, 252 Colt v. McConnell. 289 v. People 22 Colton v. Beardsley 135, 225 Coltraine v. Brown 338 Columbia R. Co. v. Hawthorne 31 Comer v. Cole, etc. Co 252 Comins v. Hetfield 316 Commrs. of Wilson Co. v. Mcintosh 122 Comm. v. Abbott 5,7, 19 v. Allen 154 v. Annis 23, 28 v. Bacon 291 v. Barnacle 20 v. Bell 45. 297 v. Bezek 247 v. Bigelow , 43 v. Billings 303 t'. Bishop.. 90, 302 v. Blair 22 v. Boroschino 23 v. Bradford 19, 35,49, 83 v. Brady 29 v. Brailey 27 v. Brewer 87 v. Brigham 23 a! TABLE OF CASES CITED. PAGE . v. Brown 76, 190, 276, 313 . Buccieri 19 • Burke 343 . Burlington 49 . Buzzell 307 . Campbell 28 . Caponi 280 . Carey 87 . Casey 86 . Castles 185 . Choate 20, 21, 35, 49, 248 .Clark 83 . Cleary 41,109,158 . Coe 44 . Cooper 88, 341 . Costley 238 . Crowe 20 . Crowley 9 . Cuffee 78,81,85 . Cullen 80 , Culver 77 . Curtis 78 . Damon 45 Densmore 8, 95 , Desmond 170 , Dill 190 . Dorsey 31, 144 Drake 79 , Dunlop 168 Eastman i?j Elisha 134 Emigrant Sav. Bk 218 Emmons 177 Felch 105, 106 Ferrigan 21 Follansbee 313 Ford 274, 342 Galavan 25 Gauvin 41 Goddard 289 Goodman 36 Goodwin 20, 23 Gorham 325 Gray 340 Griffin 280 Hackett 12 Hall 112, 152 Haney 88,89 Harman 83 Harris 339 Hawkins 263 PAGE Comm. v . Hayes 280 v. Hill 116,285 v. Hollister 302 v . Holmes 20, 302 v. Holstine 76 v. Howe 80,85 v. Hudson 19 v. Ingersoll 302 v. Ingraham 15, 76, 337 v. Jackson 35, 42, 44 v. James 80 v. Jarboe 308 v. Jardine 47 v. Jeffries 5, 180 v- Jeffs 342, 343 v. Johnson 43 v . Kane 225 v. Kennon 50 v. Kimball 53 v. King 115,170 v. Knapp 79 v. Lannan 343 v. Leach 48, 151, 238 v. Leonard 158 v. Littlejohn 156 v. Lynes 274 v. Marzynski 171 ?'. McCabe 75. 3'4 v. McCarthy 51 v. McDermott 75 v. McGorty 245,315 v. McGrath 249, 262 v . McKenna 109 v. McKie 244 v. McNamee 50 v. M'Pike 12 v. Mead 285 v. Meany. 5° i'. Meserve 284 v. Moore 263, 277 v . Morey 78, 81 v. Morrell 190 v. Mosler 78 ?•. Moyer 297 v. Mudgett 238 v. Myers 81 v. Nagle 158 v. Nef us 12 v. Nichols 298 v. Nott 81 v. O'Brien 142, 159.335 TABLE OF CASES CITED. xli PAGE Conim. v. Parker 305 v. Parmenter 23 v . Phillips 104 v. Piper 157 v. Pitsinger 76 v. Place 45 v. Pomeroy 49, 247 v. Pratt 297 v. Preece 77, 78 v. Price 43 v. Ratcliffe 29 v. Reynolds 5S v. Ricker 56 v. Roberts 87 v. Robertson 177 v. Robinson 4. 49. 272 v. Russell 43 v. Ryan 50, 352 v . Sapp 276, 278, 280 v. Schaffner 321 v. Scott 15, 35. 276 v. Scowden 286 v. Sego 77, 78, 80 v. Shaw 297 v. Shepherd 256 v. Shurn 187 v. Sliney 26 v. Smith 16, 78, 153, 191, 298 v. Sparks 299 v. Stevens 190 v. Stevenson 104 v. Straesser 20, 88 v. Sturtivant 115, 142, 353 v. Sullivan 192,323 v. Switzer 115 v. Tibbetts 6 v. Tolliver 22, 329 v . Towle 251 v. Trefethen 26, 47 v. Trider 297 v. Tuckerman 79 v. Vose 73 v. Weber 314 v. Webster 4.7,21 v. Werling 51 v. Werntz 12 v. Wesley 83 v. White 284 v. Williams 28 v. Wilson 302 Comstock v, Crawford 137 PAGE Comstock v. Smith 216 Conant v. Leslie 45 v. Nat. State Bk 221 Concha v. Concha 130 Conestoga Co. v. Finke 228 Confederate Note Case 232 Conkey v. Barbour 67 v. People 159, 339 Conn. Ins. Co. v. Lathrop 141, 143 v. Union Trust Co 293 Conn. Life Ins. Co. v. Schaefer 287 v. Schwenk 104, 105 Connelly v. McKean 262 v. O'Connor 271 Connolly v. Pardon 234 v. Straw 282 Connors v. Morton 37 Conrad v. Griffey . 338 Conselyea v. Swift 242 Consol. Ice Machine Co. v. Keifer... 328 Continental Ins. Co. v. Delpeuch 315 v. Jachnichen 239 Converse v. Colton 282 v. Sickles 68 v. Wales 49 v. Wead 228 Conway v. State 25,276 Conyers v. Postal Tel. Co 179 Coogler v. Rhodes 320 Cook v. Barr 58, 61 v. Brown 328 v. Champlain, etc. Co 50 v. Ins. Co 142 v. New Durham 38 v. N. Y. Central R. Co 111 v. State 171 Cooke v. Tanswell 1S4 Coole v. Braham 72 Coombes v. State 338 Coon v. Swan 288 Coon's Appeal 97 Coonrod v. Madden 190, 195 Cooper v. Cooper 258, 301 v. M ayhew 62 v. Phipps 161 v. State 298 Cope v. Cope 113, 256 Copeland v. State 169 v. Taylor 73 Copperman v. People 43 Corbett v . Gibson 187, 193 xlii TABLE OF CASES CITED. PAGE Corbett v. State 76 Corbin v. Jackson 178 Corbishley's Trusts, Re 258 Corbitt v. Timmerman 138 Corbley v. Wilson 133 Corby v. Wright 2H1 Corcoran v. Peekskill 31 Corder v. Corder 57 Corley v. Holloway .• 258 Corlies v. Van Note 212 Corn Exch. Bk. v . Nassau Bk 224 Cornelius v. Hambay 278, 299 Cornett v. Williams 191 Corning v. Corning 160 Cornish v. Farm, etc. Ins. Co 150 Corr v. Sellers 92 Corrigan v. Chicago 267 Cortes Co. v. Tannhauser 309 Cory v. Bretton 73 Costello v. Crowell. . 35, 149, 154, 342, 343 Costigan v. Lunt 109,110 Cosulich v. Standard Oil Co 244 Cothran v. Ellis 355 Cotton v. Smithwick 230 Cottrell, Matter of 185 v. Cottrell 314 Coulter v. Amer. Exp. Co 329 Counselman v. Hitchcock 297 Countryman v. Bunker 93 County Commrs. v. Minderlein 322 County of Mahaska v. Ingalls 95 Coveney v. Tannahill 296 Coventry v. Great Eastern Ry. Co.. 266 Covert v. Sebern 231 Coward v. Clanton 58 Cowley v. People 177 Cox v. Bruce 269 v. Co mm 302 v. Davis . . 181 v. Eayres 329 v. Ellsworth 258 v. Palmer 217 Coye v. Leach Coyle v. Comm 145, 1 (8 Coyne v. Weaver 62 Cozzens v. Higgins 188 Craft v. Comm 332 Craig v. Brown 202 V. Miller 277 v. State 76 Craig's Appeal 28 PAGE Craighead v. McLoney 214, 218 Crawcoui v. Salter 291 Crawford v. Loper 109, 115 v. West SideBk 265 Crawfordsville v. Braden 172 Crean v. Hourigan 320 Crease v. Barrett 100, 102, 103 Creighton v. Hoppis 61 Crill v . Rome 114 Crispell v. Dubois 100 Crist v. Erie R. Co 40 Crittenden v. Rogers 342, 344 Crocker v. Agenbroad 331 v. Crocker 233 v. McGregor 38 Crockett v. Davis 148 Crofton v. Crofton 309 Cromer v . Pinckney 230 Cronk v. Frith 183 Cronkhite v. Herrin 67 Crook v. State 337 Crooks v. Bunn 338 v. Whitford 232 Crosby v. Berger 289 Cross v. Brown 246 v- Cross 139, 255,330 v. Lake Shore, etc. R. Co 314 v. Sabin 172 v. State 24 Crossley v. Dixon 268 Crossman v. Crossman 179 Croswell v. Labree 214 Croudson v. Leonard 127 Crow v. Jordan 32 Crowell v. Western Res. Bk 176,312 Crowninshield v. Crowninshield 246 Cruikshank v. Gordon 45 Cuddy v. Brown 104 Cullison v. Bossom 293 Cullmans v. Lindsay '223 Culrose z\ Gibbons 122 Culver <•. Marks 91 v. Scott Lumber Co 342 Culver's Appeal 136 Cumberland Ins. Co. v. Giltinan 178 Cummer i<. Kent Judge 193 Cummings v. Arnold 223 v, I .i\ lor 315 Cummins v. Hurlbutt 240 Cunningham v. Hudson Riv. Bk 152 Cuppy v. State 256 TABLE OF CASES CITED. xliii PAGE Currier v. Richardson 239 Curry v . Walter 282 Curtice v. West 316 Curtis v. Aaronson 102 v. Belknap 185 v. Bradley 343 v. Cochran 273 v. Daughdrill 97 v. State 116 Curtiss v. Ayrault 115 Cushingw. Field 218 v. Laird 127 Cushman v. Coleman 344 Cuthbertson's Appeal 249 Cutler v . Thomas 224 v. Wright 174 Cutter v. Caruthers 167 Cuyler v. McCartney 14. 63 Dabney v. Mitchell 281, 341 Daby v. Ericsson 30 Da Costa v. Jones 354 Dade v. ./Etna Ins. Co 192, 195 Daily v. N. Y. etc. R. Co 87 Dain v. Wyckoff 160 Dale v. Delaware, etc. R. Co 8 v. Gilbert 59 Daley v. American Printing Co 50 Dalrymple v. Williams 284, 285 Dalton v. Angus 260 v. West End, etc. R. Co 68 Daly v . Byrne 45 Dan v. Brown 69 Dana v. Conant 194 v. Fiedler 232 v. Nat. Bk. of Republic 36 v. Tucker 287 Daniel v. Daniel 291 v. Pitt 73 Daniels v. McGinnis 63 v . Smith 190 Dann v. Kingdom 156 Dantz v. State 76 Darby v. State 88 Darling v. Westmoreland 5. 142 Darlington's Estate 254 Darrow v. Pierce 188 Daugherty v. Rogers 230 Davenbagh v. M 'Kinnie 294 Davenport Co. v. Pa. R. Co 296 Davidson v. Cooper 215, 218 PAGE Davidson v. Cornell 48 Davie v. Briggs 258 Davies v. Lowndes. 104, 107, 367 v. Waters 295 v. White. 394 Davis, Ex parte 163 v. Brown 271 v. California Powder Works... 318 v . Comm 00, 336 v . Cornue 139 v. Davis 137, 240 v. Field 342,343 v. Gallagher 69 v. Gann 221 v. Greve 119 v. Kline no v. McCrocklin 59 v. Melson 60 v. Poland 66, 68 v. Roby 325 v. Seaman 92 v. Smith 132 v. Spooner 182 w.State n6,338 w.U.S 247 Davison v. Gibson 147 v. Sherburne 67 Dawson v. Mayall 104 v. State 49 Day v. Day 274 v. Floyd 119 v. Ross 160 v. Stickney 326, 329 Dayton v. Monroe 49 Dazey v. Mills 59 Deal v. State 4 Dean v. Chapin 204 v. King 269 z'. Wilkerson 95 De Armond v. Neasmith 117 Deasey v. Thurman 63 Deck v. Johnson 65 Decker v. Decker 231 Dedrick v. Hopson 273 Deer Isle v. Winterport 26, 47 Deere v. Bagley 329 De Haven v. De Haven 106 Deimel v. Brown 305 Deininger v. McConnell 211 Deip's Estate 289 Deitz v. Regnier 189 xliv TABLE OF CASES CITED. PAGE Dejarnette v. Comm 248 De Kay v . Irving 230 Delafield v. Hand 169 Delaware Co. v . Diebold Co 58 Den v . M'Allister 192 Denman v. Johnston 117, 252 Denney v. State 166, 170 Dennie v. Williams $8,67 Denning v. Butcher 141, 247, 287, 293 Dennison v. Page 256 Denny v. Pinney 100, 182 Denton v. C. R. I. & P. R. Co 246 v. Roddy 138 Denver Tramway Co. v. Owens 287 De Pauw v. Bank 218 Derby v. Ailing 115 v. Thrall 218 De Rosaz, In the Goods of 235 Derrick v. Luddy 266 De Thoren v . A. G 155 Detrick v. Sharrar 122 Devala Co., Re 66 Deveney v. Baxter 9 Devlin v. Comm 119 v. Greenwich Sav. Bk 240, 303 Dewey v. Moyer 15 Dewitt v. Prescott 192 Dexter v. Hall 148 v. Harrison 176 Diamond v. Henderson 263 Diamond State Iron Co. v. Rarig 120 Dibble v. Dimmock 4 Dickerman v. Graves 278 Dickerson v. Colgrove 264 v. State 83 Dickinson v. Buskie 317 V. Dickinson 75 v. Poughkeepsie 19 Dickson v. Hartman Mfg. Co 222 v. State 313 Diehl v. Rodgers 273 Diel v. Stegner 315 Dietzf. Fourth Nat. Bk 154 Diggin's Estate 152 Dill v. People 277 Dille v. Lovell 243 Dilleber v. Life Ins. Co 48 Dillon, In re 283 Dilts v. Stevenson 303 Diniick v. Downs 142 Dinsmore v. Abbott 246 PAGE Dismukes v. State 12 Di Sora v. Phillipps 145 Disque v. State 298 Dist. of Columbia v. Armes. . 38, 272, 275 v. Cornell 266 v. Gallaher 228 Division of Howard Co 165 Dix v. Atkins 54 Dixon v. Hammond ^ 268 v. Niccolls 171 v. People 241 v. State 329 Dobson v. Graham 294 v. Pearce 139 Dodge v. Gallatin 213 v . Goodell 63 v. Haskell 216 v. Trust Co 61, 63 v. Zimmer 226 Doe v. Barton 266 v. Baytup 267 v. Beviss 98 v. Brydges 127 v. Catomore 215 v. Coulthred 249 v. Date 295 v. Derby m d. Devine v. Wilson 259 v. Edwards 169 d. Hammond v. Cooke 261 v. Hiscocks 234, 375, 376 v. Hodgson 345 v. Kemp 14 v. Needs 235, 375 v. Palmer 101 v . Pegg 266 v. Pulman 17 v . Ross 197 v. Smyth 266 v. Suckermore 153 v. Tatham m, 356, 369 v . Turf ord 90 v. Vowles 98, 99 d. Wright v. Tatham 359 Doherty v. O'Callaghan 289 Dole v. Belden 194 v . Wilson 169 i'. Wooldredge 318 Doles v. State 87 Dollner v. Lintz 335, 336 Donahue v. Coleman 262 TABLE OF CASES CITED. xlv PAGE Donahue v. Railroad Co 252 Donellan v. Hardy 196 Donelson v. Taylor 317 Donnelly v. State 88, 90, 317 Donohue v. People.- 22 v. Whitney 115 Donovan v. Boston, etc. R. Co 91 Dooley v. Baynes 61 v. Moan 92 Doon v. Ravey 74 Dooner v. Canal Co 145 Dorman v. Kane 51 Dorr v. Tremont Nat. Bk 243 Dorrell v. State 118 Dost Aly Khan, In the Goods of 147 Doty v. Brown 126 Doughty v. Doughty 139 Douglas v. Mitchell's Excr 68 Dover v. Child 123 Dow v. Blake 1 39 Dowell v. Guthrie 244 Downer v. Button 194 v. Rowell 342 Downey v . Dillon 161 Downs v. N. Y. C. R. Co 57 Doyle v , Jessup 340 v. N. Y. Infirmary 151 v. People 276 v. St. Paul, etc. R. Co 39, 50 Draper v. Draper 272 v. Hatfield 74. 192 Drennan v. Douglas 257 Dresler v. Hard 155 Drew v. State 335 v. Swift 230 Driscoll v. Fall River 46 v. People 24, 325 Drosten v. Mueller 263 Drown v. Allen 161 Drum v. Drum 214, 215, 216 Drummond v. Prestman 131 Drury v. Hervey 26 v. Midland R. Co 101, 103 Du Barre v. Livette 383 Dubois v. Hermance 118 Duchess of Kingston's Case 128, 133, 139, 292, 368 Ducie v. Ford 221 Dudleys. Beck 288 v. Cadwell 209 Duff^.Duff 58 PAGE Duffin v. People 180 Duffy ». People .' 80 Dugan v. Mahoney 342, 343 Duke of Bedford v. Lopes 17 Duke of Buccleughz*. Met. Bd. Works 282 Duke of Newcastle v. Broxtowe 103 Dulaney v. Payne 125 Dumont v. Dumont 247 Dunbar v. McGill 108, 329,334 v. U. S 187, 192 Duncan v. Lawrence 6i v. Seeley 343 Dundee Mortgage Co. v. Cooper — 146 Dunham v. Averill 230, 234 v. Barnes 227 v. Bower 125 Dunlap v. Richardson 329 Dunlop v. U. S 53.241 Dunn, In re 294 Dunn v. Price 236 v. Record 249 v. State 25 Dunn's Case 43 Dunstan v. Higgins 140,208 Durant v. Abendroth 127, 140 Durfee v. Abbott 94 Durgin v. Somers 74 Duringer v. Moschino 137 Durkee v. Cent. Pac. R. Co 9 v. Leland 296 v. Vermont R. Co 179 Dusky v. Rudder 268 Duttenhofer v. State -287, 291 Duval v. Covenho ver 73 v . Davey 162 DuvalFs Excr. v. Darby 176 Dwain v. Descalso 27 Dwight v. Brown 95 Dwyer v. Collins 192, 194, 372 Dyckman v. Mayor of N. Y 135 Dye v. Young 49 Dyer v. Fredericks 191 Eagan v. Connelly 205 v. State 172 Eames v. Eames 261 Earl v. Tupper. no Earle v. Grout 287 Earle's Trust 170 Early v. Comm 80 East v. Pace 190 xivi TABLE OF CASES CITED. PAGE East St. Louis R. Co. v. O'Hara 329 Eastman v. Boston, etc. R. Co 13 v. Dearborn 140 v. Martin 108 Eaton v. Alger in v. Knowles 68 v. Tallmadge 104, 107 v. Telegraph Co 6 Eckel v. Eckel 263 Eckert v. Louis 215 v . Pickel 214 Eckford v. Eckford 231 Eckstein's Petition 297 Eddy v. Gray 32 Edgar v. Board of Commrs 165 v. Buck 121 v. Richardson 178 Edgecomb v. Buckhout 143 Edgell v. Francis 47 Edgerton v. Wolf 69 Edgington v. U. S 158 Edington v. Life Ins. Co 48, 293 Edison Electric Co. v. U. S. Electric Co 296 Edison Light Co. v. U. S. Lighting Co 344 Edwards, In re 241 v. Bonneau 194 v. Knapp 239 v. Noyes 187 v. Tracy 178 Egan v. Bowker 23 Egbert v. Egbert 141 v . Greenwalt 255 Ehle'sWill 258 Eickhoff, In re 119, 136 Eickman v. Troll 289 Eidt v. Cutter 156 Eighmie v. Taylor 222 Eighmy v. People 9, 26 Eilbert v. Finkbeiner 192 Eisenlord v. Clum 104, 105, 156, 271 Eisfield v. Dill 155 Elcessor v. Elcessor 141 Electric Light Co. v. Grant 322 Elgin v. Joslyn 228 Elkin v. Janson 252 Elkins v. McKean 8 Elkinton v. Brick 100, 246 Ellicott v. Pearl 101 Elliott t>. Boyles 324 PAGE Elliott v . Dyche 183 v. Hayden 58 v. Russell 160 v. Van Buren 142 Ellis' Estate, In re 204 Ellis v. Buzzell 239 v. Duncan 260 v. State 77 Ellison v. Cruser 344 v. Lindsley 54 v. Weathers 281 Elmira, etc. Co. v. Harris 264 Elmore v. Johnson 37 Eisner v. Supreme Lodge 142 Elsworth v. Muldoon 96 Elwell v. Cunningham 198 v. Mersick 188, 191 Elwood v. Flannagan 200 Ely v. Ely 216 Elyton Co. v. Denny 311 Embden v. Lisherness 120 Emerson v. Bleakley no v. Lowell Gas Co 145 Emery v. Fowler 109 v. Hildreth 119 Emery's Case 297 Emmett v. Penoyer 221, 228 Empire Mf'g Co. v. Stuart 152 Enders v. Sternbergh 60, 213 Engelhorn v. Reitlinger 226 English v. Porter 271 Enix v. Miller 166 Ennis v. Smith 145, 207 Enos v. Enos 45 v. Tuttle 10 Entick v. Carrington 187 Eppert v. Hall 327 Eppinger v. Scott 54 Epps v. State 116 Erickson v. Drazkowski 143 Erie, etc. Dispatch v. Stanley 317 Erie R. Co. v. Heath 193 Erwin v. English 113, 241 Eschbach v. Collins 217 Eskridge v. State 85 Eslow v. Mitchell 191 Estabrook v. Boyle 244 Este v. Wilshire 298 Estell v. State 9 Esterly v. Eppelsheimer 327 Ettinger v. Comm 19, 25, 75 TABLE OF CASES CITED. xlvii PAGE Evans v. Beattie 7i v. Keystone Gas Co 34 v. McDermott 44 v. Montgomery 68 v. Rees 365 v. State 251 v. Stewart 258 Evanston v. Gunn 113, 196 Evansville, etc. R. Co. v. Montgom- ery 327 Evening Journal Ass'n v. McDermott 45 Everett v. Warner Bk 138 Everitt v, Everitt 100 Excelsior Ass'n v. Riddle 293 Excelsior Elec. Co. v. Sweet 243 Exchange Nat. Bk. v. Washita Co. . 192 Excrs. of Clarke v. Canfield 258 Eyer v. Beck 220 Eysamen, Matter of 271 Eyster v. Gaff 166 Fahey v . Crotty 160 v. Mottu 136 Fairchild v. Bascom 329 v. Fairchild 58, 139 Fairfield v. Lawson 230, 231 Fairlie v. Hastings , 362 Fake v. Addicks 45 Fall River v. Riley 137 Fall River Bk. v. Buffinton 264 Falls v. U. S. Sav. etc. Co 205 Fanning v. Hibernia Ins. Co 129 Fanton v. Middlebrook 263 Fargis v. Walton 222 Farkas v. State 84 Farley v. McConnell 168 v. Rodocanachi 57 Farmer's Excr. v. Farmer 304 Farmers' Ins. Co. v. Bair 319, 328 Farmers' L. & T. Co. v. Siefke 238, 243, 250 Farnsworth v. Briggs 202 Farnum v. Farnum 326 Farrar v. Olmstead 119 Farrell v. Boston 318 v . Weitz 32, 55 Farrington v. Payne 124 Farris v. People 35 Farwell v. Ensign 221 Fassin v. Hubbard 175 Faucett v. Nicholls 41 PAGE Faulcon v. Johnston 190 Faulkner v. Bailey 69 Faunce v. Life Ins. Co 226 Faust v. U. S 315 Faxon v. Hollis 93 Fay v. Guynon 60 v. Hebbard 68 Fearing v. Kimball 58 Feigley v. Whitaker 66 Felder v. State 341 Fellers v. Lee 166 Fellows v . Smith 60 Felska v. N. Y. Cent. R . Co 55, 142 Fengar v. Brown 238 Fenwick v. Thornton 64 Ferguson v. Crawford ...... 136, 137, 138 v. Hubbell 145, 150 Ferris v. Commercial Nat. Bk 167 Ferson v. Wilcox 68 Feversham v. Emerson 129 Few v. Guppy •, • 295 Fickett v. Swift -., 60 Field v. Clark 165 v. Davis ■ . . 39 p.N.Y.C.R.Co ... 40 v. Zemansky 194 Fife v. Coram 76, 78 Filkins v. People . 263 v. Whyland ? . 227 Fillo v. Jones 36 Finch v. Finch 303 Finneran v. Leonard.. , 136 Fire Ins. Ass'n v. Wickham 221 First Nat. Bk. v. Carson . . , 154 v. Crosby 202 v. Dunn 236 v. Post 329 v. Wolff 337 First Presb. Church v. Logan. 240 Fish, In re 230 Fishburne v. Ferguson 141 Fisher v. Fielding 140, 208 v. Fisher 29a v. Green 176 v. Greene 189 v. Hart 330 v . Mayor 9°. 9 1 v. Witham 24* Fisk, Ex parte 3°9 Fiske v. Gowing 176 V. New Eng. Ins. Co 25J xlviii TABLE OF CASES CITED. PAGE Fiske v. Steele 121 Fitzgerald v. Brennan 60 v.GoB. 3i8 v. McCarty 93 v. Weston 61 Fitzgibbon v. Brown 27 Fitzpatrick v. Fitzpatrick 230, 234 v. Riley 322 Fitzsimons v. Marks 140 Flagg v. M ason 61 v. People 78 Flannery v. Van Tassel 63 Flansburgh, Matter of 246 Flattery v. Flattery 301 Fleming v. Shenandoah 108 Fletcher v. Fuller 17, 259 v. Perry 183 v. Powers 342 -'. Pullen 265 v. State 75, 238 Flint, In re 293 Flitters v. Allf rey 123 Flood v. Growney 258 Flora v. Anderson 105 Flowers v. Fletcher 152 Flowery Co. v. Bonanza Co 211 Floyd v. State 333 Foggz;. Dennis 152 Foley v. State 163 Folger v. Boy ington 58 Folkes v. Chadd 151 Follansbee v. Walker 282,284 Folsom v. Apple River Co 342 v . Batchelder 73 v. Blood 202 v. Brawn 239, 325 v. Cook 54 Fonda v. Burton 236 Foot v. Bentley 180 Foote v. Hambrick 214 v. Hayne 289 Force v. Craig 212 Ford z>. Cunningham 191 v. Jones 340 v. Osborne 240 v. State 247 v. Umatilla Co 251 Forrest v. Forrest 189 v. Kissam 316 Forsythe v. Hardin 184 v. Norcross 93 PAGE Fort Wayne v. Combs 39 Fosdick v. Van Arsdale 176 v. VanHorn 18S Foster v. Newbrough 192, 336 v. People 23 v. Persch 58 Foster's Excrs. v. Dickerson 27, 141 Fowle v. Coe 136 Fowler v. Black 229 v. Scott 213 v. Wallace 239 Fox v. Bearblock 95 v. Coram 168 v. Moyer 311 v. Peninsular, etc. Works 116 v. People 23 v. Riel 183 Foye v. Patch 121, 129, 152 Francis v. Franklin T'p 336 v. Newark 200 Frankel v. Satterfield 136 Franklin v. Baker 217 Franklin Ins. Co. v . Gruver 150 Fraser v. Hunter 102 v. Jennison 293 v. Schroeder 38 Fratini v. Caslini 47, 210 Frauenthal's Appeal 122 Frazier v. Brown 260 Frear v. Evertson 60 Fred M. Lawrence, The 314 Fredrickson v. Johnson 45 Free v. Buckingham 272, 323 Freeman v. Bartlett 190 v. Cooke 264, 379 v. Fogg 282 v. Hamilton 247 v. Sanderson 45 v. State 305 French v. Hall 282 v. Sale 3M V. Ware 278 Frew v. Clarke 30 Friederich v. People 263 Friedlander v. Texas, etc. R. Co 269 Fries v. Brugler 321 Friess v. N. Y. C. R. Co 297 Frobisher v. Fifth Ave. Co 39 Frost v . Deering 183, 185 v. Frost 196 v. McCargar 337 TABLE OF CASES CITED. xlix PAGE Fruin v. Crystal R. Co 229 Fry v. Stowers 26, 101 V. Wood 108 Fulham v. Howe 26 Fulkerson v. Holmes 104, 106, 107 Fuller v. Green 218 v. Linzee 258 v. Metropolitan Ins. Co 130 v. Naugatuck R. Co 49 v. Rice 316 v. Shattuck 125 Fullerton v. Fordyce 177 Fulton's Estate 93 Funk v. Ely 52 v. Funk 124 Funkhouser v. Wagner 246 Furbush v. Goodwin 318 Furgeson v. Jones 136 Furst v. State 247 Gabbey v. Forgens 176 Gadsden v. Woodward 299 Gaffer v. American Mortgage Co 187 Gaffney v. People 333 Gage v. Campbell 345 v. Gowdy 118 v. Railway Co's 238 Galbraith v. Fleming 20 Gall v. Gall 155 Gallagher v. London Assur. Corp. . . 182, 190, 224 v. Market St. R. Co 116 Gallinger v. Lake Shore Co 53 Gallup v. Wright 235 Galpin v. Page 136 Gait v. Galloway 113 Galvin v. Palmer 115, 200 Gamble v. Mullin 252 Gandy v. M acaulay 303 Gannon v . People 4, 280 Ganser v. Fireman's Ins. Co 176 Garber v. Doersom 61 Garden City Co. v. Miller 204 Gardiner v. People 22 Gardner v. Connelly 330 v. Eberhart 179 v. Frieze 48 v. Gardiner 217 v. Gardner 99 v . People 76 v. State.- 237 PAGE Garland v. Jacomb 267 Garman v. State 314 Garner v. White 311 Garner's Case 358 Garnett, In re 303 Garnsey v. Rhodes 15, 322 Garrard v. Lewis 218 Garretson v. Ferrall 166 Garrett v. Hanshue 68,183 v. Trabue 176 Garth v. Caldwell 171 Gartside v. Comm. Ins. Co 293 Gass v. Stinson 316 Gastrell v. Phillips 108 Gates v. Cornett 254 v. Fisk 67, 69 v. Fleischer 148 Gaunt v. Harkness 155 v. State 32 Gawtry v. Doane 91 Gay v. Bowen 66 Gebhart v. Burkett 160 Geer v. Lumber Co 213 Gelott v. Goodspeed 181, 182 Gelston v. Hoy t 127, 168 v . Shields 233 Genz v. State 141, 350 George v. Pilcher 338 v . Surrey 152 Gerish v. Charlier 46 German Ins. Co. v. Gibe 221 German Nat. Bk. v. Leonard 109 Germania Bk. v. Distler 209 Germania Ins. Co. v. Klewer 239 Gertz v. Fitchburg R. Co 337 Gery v. Redman 23 Gethin v. Walker 194, 200 Getty v. Hamlin 174 Gettysburg Nat. Bk. v. Chisolm 214 Geyer v. Aguilar 118, 128 Giannone v. Fleetwood 186 Gibbons v. Wisconsin, etc. R. Co... 41 Giberson v. Jolly 244 v. Patterson Mills Co 65 Gibney v. Marchay 61 Gibson v. Hunter 4; v. Poor 115 v. Trowbridge Co 152 Giese v. Schultz 301 Giffin v. Brooks 217 Gifford v. People 335 TABLE OF CASES CITED. PAGE Gilbert v. Flint, etc. R. Co 172 v. Knox 100 v. MolineCo 350 v. Sage 318 v. Simpson 154 v. West End R. Co 177 Gildersleeve v. Landon 57 Gill v. Honirighousen 251 Gillett v. Wiley 254 Gillies v. Smither 182 Gillooley v. State 293 Gillrie v. Lockport 38 Gilman v. Gilman 139, 140 v. Moody 209 Gilmanton v. Ham 32 Gilmer v. Stone 231 Gilmor's Estate 229 Gilmore v . Car 132 v. Driscoll 260 Giltinan v. Strong 132 Girard v. Kalamazoo 40, 47 Girard Ins. Co. v. Marr 350 Gitchell v. People 285, 286 Gleadow v. Atkin 95. 365 Gleason v. Hamilton 215 v. Knapp 121 Gleeson v. Va. R. Co 243 Glenister v. Harding 105, 113 Glenn v. Gleason 317, 333 v. Hunt 205 v. Sumner 59 Globe Ins. Co. v. Gerisch 47 Gloucester v. Gaffney 17 Glynn v. George 267 Goble v. Dillon 125 Goblet v. Beechy 232 Godard v. Gray 139, 368 Goddard v. Foster 233 v. Gardner 290 Godeau v. Blood 44 Godfrey v. Crisler 250 Goebel v. Iffla 122 Goelz v. Goelz 280 Goersen v. Comni 35, 49, 52 Goetz v. Bank of Kansas City 65 Goff v. Roberts 231 Goins v. Moberly 324 v. State 14, 29 Golden v. Clinton 38 v . Conner 187 Golder v. Bressler 225 PAGE Goldsby v. U. S 319 Good v. French 252 v. Knox 330 Goodall v. State 341 Goodbarf. Lidikey 48 Goode v. Riley 225 v. State 338 Goodell v. Hibbard 263 Goodin v. Plugge 216 Goodman v. Mayor of Saltash 260 Goodrich v. City 122 v. Tracy 65 Goodtitle v. Baldwin 259 v. Southern 234 Goodwin v. Appleton 170 v. Goodwin 222 v. Jack 17, 213 v. State 21 Goodwin Co.'s Appeal 289 Gordon z>. Boston & M. R. Co 38 v. Bowne 249 v. Comm 285 v. Richmond 252 v. Ritenour 46 Gore v. Curtis 339 Gorgas v. Hertz 188 Gorrissen v. Perrin 232 Gorsuch v. Rutledge 319 Gosling v . Birnie 268 Goss v . Froman 255, 256 v. Lord Nugent 226, 374 Gott v. Dinsmore 73 Goudy v. Werbe 319 Gouge v. Roberts 36 Gough v. St. John 160 Gould v. Conway 94 v. Crawford 272 v. Evansville R. Co 122 v. Lakes 101 v. Norfolk Lead Co 329 GrafTam v. Pierce 222 Gragg v. Learned 185, 198 Graham v. Badger 243 v. Chrystal 261 , 336 v. Davis 319 v. Graham 281 i'. McReynolds 338 V. Pa. Co 141 v. Payne 44 v. Spencer 139 Grand Trunk R. Co. v. Latham 131 TABLE OF CASES CITED. PAGE Grand Trunk R. Co. v. Richardson 40, 50 Granting v. Swenson 327 Grant v. Coal Co ' 206 v. Frost 224 v. M addox 227 v. McPherson 238 v. Mitchell 255,256 Grattan v. Metropolitan Ins. Co 57 Gravely v. Coram 245 v. State 248 Graves v. Battle Creek 177 v. Jacobs 28 v . Merchants' Ins. Co 319 v. Stute 247 v. U.S 314 Graville v. N. Y. C. R. Co 113 Gray v. Coram 75 v, Goodrich 56 v. Gray 174 v. Ktrnahan 194 v. Rollinsf ord 66 v. Shepard 228 Gray's Admr. v. Bk. of Kentucky. . . 244 Gray's Case 90 Graybeal v. Gardner 247 Gt. West. Turnpike Co. v. Loorais. . 321 Greeley v. Passaic 251 Green, Matter of 247 Green v. B. & L. R. Co 70 v. Coram 76 v. Disbrow 31 v. New River Co 118,131 v. Roworth 254 v. State 156, 307 v. Stone 240 Greenabaum v. Elliott 125 Greenawalt v. Kohne 220 v. McEnelley 156 Greenfield v. Camden 102, 104, 261 v . People 7, 23, 31, 149 Greenfield Bk. v. Crafts 57 Greenfield Sav. Bk. v. Sto\vell... 218, 265 Greening v. Steele 222 Greenleaf v. Dubuque, etc. R. Co.. . 107 Greenman v. O'Connor 312 Greenough v. Eccles 386 v. Gaskell 382 Greensvveig v. Sterlinger 139 Greenwood v. Sias 66 Gregg v. Forsy th 206 V. State 79 PAGE Gregory v. Chambers 161 v. Comm 263 v. Gregory. .. , 139 v. Keny on 129 v. Ohio R. Co 116 Grierson v. Mason 221 Griesheimer v. Tanenbaum 92 Griffin v. Auburn 34 v. Griffin 240 v. State 158, 245 v. Stearns 66 Griffith v. Diffenderffer 30 v. State 335 Griggs v. Day 92 Grimes v. Hilliary 239, 253, 262 v. Kimball 189 Grimm's Estate 156 Griscom v. Evens 230, 231 Griswold v. Pitcairn 168 Grob v. Cushman 165 Grogan v. Chesapeake R. Co 4 v. U. S. Industrial Ins. Co 182 Grommes v. St. Paul Trust Co 132 Grubbs v. McDonald 246 Grube v. Mo. Pac. R. Co 37, 46 Guiterman v. Liverpool, etc. St. Co. 148 Gulerette v, McKinley 23, 336, 339 Gulf, etc. R. Co. v. Shieder 252 Gulick v. Gulick 289 Gumberg v. Treusch 14 Gunn, In re 165 Gunn v. Peakes 207 Gunther v. Bennett 188 Gurley v. Park 293 Gurney v. Howe 113 Guthrie v. Haines 107 Gutterson v. Morse 321 Guy v. West 249 Hacker's Appeal 211 Hackett v. Judge, etc 311 v. King 30 v. McMillan 138 v. People 86 Haddock v. B. & M. R. Co 104,105 Hadley v. Watson 311 Hagan v. Merchants', etc. Ins. Co. . . 217 Hagerty v. White 209 Hahn v. Kelly 136 Haines v. Dennett 271 v . Hayden 48 Ill TABLE OF CASES CITED. PAGE Hale v. Comm 87, 263 v. Huse 282 v. Rich 61 •v. Silloway 61 Haley V. State 327 Halifax Guardians v. Wheelright — 379 Hall v. Bainbridge 211 v. Brown 51, 53, 54, 173 v. Chicago, etc. R. Co 329 v. Costello 146 v. Glidden 93 v. Hall 236 v. Knappenberger 254 v . Lanning 66 v. Matthews 239 v. Mayo 102 v. Naylor 44 v. Rankin 160 v. Ray 344 v. State 9 v. Wolff 238 Hallack v. Loft 137 Halleck v. State 35 Hallenbach v. Schnabel 166 Halliday v. Hess 230 v. Martinet 91 Hallinger v. Davis 76 Halloran v. Halloran 59 Hallowell v. Guntle 161 Ham v. Wisconsin, etc. R. Co 350 Hamer v. McFarliu 161 Hamil v. England 288 Hamilton v. Coffin 97 v. Liverpool Ins. Co 227 v. People 7. 16. 333. 335, 337 Hamilton, etc. Co. v. Railroad Co... 267 Hammann v. Mink 167 Hammon v . Sexton 190, 224 Hammond v. 115 v. Bradstreet 103 v . Varian 152 Hampson v. Taylor 101 Hampton v . Boylan 289 Hamsher v. Kline 185 Hanawalt v. State 32 Hance v. Hair 67 Hanchett v. Kimbark 63 Hancock v. Amer. Life Ins. Co 258 Hancock Ins. Co. v. Moore 61 Hand v. Ryan Co 222 Hankinson v. Trenton 163 PAGE Hankinson v. Vantine B36 Hanley v. Donoghue 146,164 Hanlon v. Doherty 290 Hannah v. State 116 Hanncrs v. McClelland 161,274 Hannon v. State 24 Hanofi v. State 322 Hanover Bk. v. Amer. Dock Co 269 Hanover R. Co. v. Coyle 10 Hanrick v. Patrick 182 Hanriot v. Sherwood 154 Hanselman v. Dovel 278 v. Doyle 192 Hansen v. Amer. Ins. Co 253 v. Miller 317 Happy v. Mosher 72 Harding v. Bader 120 v. Butler 71 v. Jewell 211 v. Williams 393 Hardman v. Wilcock 268 Hardy v. Merrill 141, 142, 246 v. U.S 84 Harger v. Thomas 133 v. Worrall 244 Harland v. Eastman 107 Harley v. Buffalo Car Co 150 Harman v. Moore 136 Harmon v. Auditor 121 v. Brotherson 135 Harper v . State 245 Harrat v. Wise 48 Harrell v. Albemarle, etc. R. Co 38 Harriman v. Jones 2S9 Harrington v. Gable 58, 185 v. Harrington 139 v. Hickman 54 v. Keteltas 21 v. Lincoln 338 v. Wadsworth 118 Harris v. Barnhart 137 v. Doe . 1 200 v. Harris 100 v. Howard 36 v. Knight 99 v. Odeal 68 v. Panama R. Co 115 v. State 285 v . White 147. 241, 251 Harrisburgh Car Co. v. Sloan 296 Harrison v. Charlton 109 TABLE OF CASES CITED. PAGE Harrison v. Clark 132 v . Comm 20 v. Morton 223 v. Rowan 320 Harrison's Appeal 329 Harryman v. Roberts 140, 205 Harshbarger v. Carroll 212 Hart v . Kendall 95 v. Randolph 63 v. Stevenson 72 v. Washington Club 244 Harter v. Crill 47 Hartford v. Palmer 272 Hartley v. Corboy 216 v. Keokuk, etc. R. Co 143 v. Weideman 57 Hartman v. Diller 15 Hartranft, Appeal of 283 Harvey v. Osborn 320 v. Thorpe 191 Harwood v. Mulry. 94 v. Wentworth 165 Haseltine v. Concord R. Co 41 Haskins v. Warren 19 Hassam v. Barrett 221 Hastings v. Brooklyn Ins. Co 54 v. Lovejoy 223 v. Stetson 23, 161 Hatch v. Atkinson 303 v. Brown 61, 312 v. Carpenter 188 v. Douglas 228 v. Elkins 70 v . Fuller 47 v . Sigman 100 Hatcher v. Rocheleau 166 Hatfield v. Lasher 161 Hatton v. Robinson 290 Haughwout v. Garrison 220, 250 Haven v. County Commrs 37 v. M arkstrum 59 Havens v. Sea Shore Co 213 Haver v. Schwy hart 97 Hawes v. Draeger 257 v. State 21, 49, 204, 290 Hawke v. Chicago, etc. R. Co 220 Hawkins v. Fall River 156 v. Garland 231 Hawks v. Charlemont 151 Hawksley v. Bradshaw 311 Haws v. Insurance Co 228 PAGE Hawthorne v. State 263 Hay v. Kramer 91 Hay's Appeal , 316 Hayden v. Goodnow 217 Hayes, Ex parte 59, 68 Hayes v. Kelley 57 v. People 156 ^Haynes v. Brown 114 v. Christian 49 v. Comm 24 v. Haynes 217 v . Ordway 125 Hays v. Morgan 58 Hayward v. Barron 313 v. People 321 Hazleton v. Union Bk 154 Hazlewood v. Heminway 312 Head v. Hargrave 143 Healy v. Visalia R. Co 342 Heath v. Cotton Mills 211 Hebbard v. Haughian 221,291 Hedden v. Roberts 54 Hedge v. Clapp 329 Hedges v. Williams 313 Hedrick v. Hughes 91 Herfernan v. Harvey 173 Heffron v. Gallupe 285 Heidel v. Benedict 122 Heine v. Comm 15 Heinemaun v. Heard 242, 243 Heiser v. Hatch 132 Heiskell v. Rollins 91 Heldt v. State 81,85 Helf rich v. Stein 320 Helwig v. Lascowski 321, 325 Helyear v. Hawke 70 Hemenway v. Smith 291 Hemmens v. Bentley 318 Hemmenway v. Towner 256 Hemminger v. Western Assurance Co.. 315 Henderson v. Philadelphia, etc. R. Co 41 Hendrick v. Whittemore 136 Hendrickson v. People 83 Henkleman v. Peterson 211 Hennessy v. Farrelly 146 7'. Wright 282 Henninger v. Heald 121 Henricus v. Englert 221 Henry v. Bishop 1 s 1 liv TABLE OF CASES CITED. PAGE Henry v. Dulle 115 v. Hall 247 Hepler v. Mt. Carmel Bk 109 v. State 251 Hepwortli v. Henshall 336 Herbage v. Utica 294 Hermann v. State 104, 177 Herrick v. Malin 213, 214 Herster v. Herster 49 Hertig v. People 168 Herzog v. Sawyer 223 Hesdra, In re 56, 338 Heslop v. Heslop 23 Hess v. Griggs 183 v. Lowrey 116 v. Wilcox 315 Hester v. Comm 22, 302, 324 Hesterberg v. Clark 217 Hetherington v. Kemp 54 Heuston v. Simpson 293 Hewett v. Chapman 285 Hewitt v. Corey 338 v. Morris 182 v. State 190 Hewlett v. Wood 141, 316 Hey's Case 314 Heyne v. Doerfler 271 Heyward's Case 281 Heywood v. Heywood 62 Hibbs v. Blair 281 Hickman v. Green 317 Hickory v. U.S 154. 33o, 33i Hicks v. Citizens' R. Co 147 Higbee v. Dresser 287 Higbie v. Life Ins. Co 142 Higgins v. Carlton 246 v. Reed 191 v. Ridgway 222 High v. Bk. of Commerce 262 Higham v. Ridgway 98, 364 Highberger v. Stiffler 281 Hildrcth v. A Id rich 329, 330 Hiler v. People 156, 275 Hill v. Bahrns 48 v. Blake 223 v. Canfield 312 v. City Cab Co 136 v. Crook 233 v. Nelms 216 v. Packard 197 v. State 24,321,342 PAGE Hill v. Syracuse, etc. R. Co 36 Hilliker v. Coleman 173 Hillis v. Wylie 335 Hillman v. Schwenk 303 Hills v. Home Ins. Co 143 Hilton v. Bender 261 v. Guyot 140 Himmelmann v. Hoadley 168 Himrod v. Gilman 154 Hinchcliffe v. Koontz 322 Hinckley v. Beckwith 170 v. Thatcher 230, 233 Hinkley v. Gilligan 66 Hinton v. Life Ins. Co 169 Hintz v. Graupner 45 Hirsch, In re 187, 193 Hiscocks v. Hiscocks 375 Hitchcock v. Moore 161, 280 Hixson i\ Ogg 121 Hoag v. Lamont 70 Hoar v. Abbott 29 Hobbs v. State 338 Hobensack v. Hallman 95 Hoboken Printing Co. v. Kahn 161 Hodges v. Bates 338 v. Bearse 39 Hodgkins v. Chappell 34 v. State 337 Hodgson, In re 304 Hodnet v. Pace 216 Hoefling v. Hambleton 178 Hoey v. Jarman 216 Hoffman v. Bank of Milwaukee 267 v. Hoffman's Excr 26 v. Kemerer 340 v. N. Y.C. R. Co 94 Hogan v. Cregan 161 v. Manhattan R. Co 250 Hoge v. People 303 Hogg v. Link 137 Hogue v. Corbitt 261 Hoitt v . Hoitt 220 Holbrook v. Gay 93 v. Holbrook 63 Holcomb v. Holcomb 142, 272 v. People 3(o Holcombe v. Hewson 36 Holder v. U. S 313 Holland v. Tenn. Coal Co 50 v. Zollner 141 Holley v. State 275,337 TABLE OF CASES CITED. lv PAGE Holley v. Young 59 Hollingsworth v. State 329, 335 Hollister v. Cordero 55. 259 Holloway v. Frick 223 Holly v. Boston Gas Co 49 Holly Mf'g Co. z'.Venner. ._ 193 Hollywood v. Reed 336, 337 Holman v. Kimball 290 v. State 275 Holmes v. Anderson 3 2 8 v. Goldsmith 154 v. Kring 169 v. Trumper 265 v. Turner's Falls Co 310 Hoist v. State 274 Holston Co. v. Campbell 228 Holt v. Squire 71 v. Walker 72 Holton v. Manteuffel 104 Holtz v. Dick 47 Holtzman v. Hoy 160 Holzworth v. Koch 223 Homan v. Earle 301 Home Ins. Co. v. Baltimore, etc. Co. 74 Homer v. Fish 121 Hood v. Hood 119 v . Pioneer Co 87 Hooper v. Taylor 93 Hoovers. Gehr 91, 93 Hope v. Liddell 295 v. People 35. 49 Hopewell v. De Pinna 257 Hopkins v. Grimshaw 280 v . Lee 130 Hoppaugh v. McGrath 132 Hoppe v. Byers 100 Hopt v. Utah 238 Horn v. Pullman 30 Hornbeck v. State 25 Hornbuckle v. Stafford 350 Horner v. Yance 47 Horrigan v. Wyman 244 Horseman v. Todhunter 312 Horstman v. Kaufman 298 HoSford v. Ballard. 17 Hosmer v . Groat 333 v. McDonald 228 Hotchkiss v. Mosher 194 Hough v. Dickinson 239 Houghton v. Jones 317 v. Watertown Ins. Co 228 PAGE Houlston v. Smith 210 House v. Beak 91.92 v. Lockwood. . , 130 v. Metcalf 38 v. Walch 220 Houston v. Brush 243 Hovey v . Grant 44 How v. Hall 194 Howard v. Brower 279 ?. Conim 338 v. Daly 54 v. Hudson 265 v. McDonough 342 v. Moot 4, 172, 173 v . Patrick 108 v. Sexton 45 v. State 241, 248 v. Stilhvell, etc. Co 312 Howe v. Howe 49 v. Lewis 121 v. Minnesota Milk Co 129 Howe Co. v. Pettibone 311 Howe Machine Co. v. Edwards 310 Howell v. Carden 344 v. Goodrich 125 Howell, Estate of 311 Howland v. Blake Mf'g Co 161 Howley v. Whipple 180 Howser v. Coram 285 v. Cumberland, etc. R. Co 243 Hoxie v. Home Ins. Co 51 Hoy v. Morris 290 Hoy t v. Hoyt 287 v. Jackson 296 i>. Newbold 238 v. People 302 v. Russell 170, 173 Hronek v. People 273 Hubbard v. Briggs 327 v . Gurney 221 v. Hubbard 313 v. Russell 179 v. State 248 Hubbell v. Judd, etc. Oil Co.... 187, 296 v. Meigs 113, 197 Huckins v. People's Ins. Co 319 Hudnutt v. Comstock 341 Hudson v. Hudson 116 v. Roos 108 v. Wabash, etc. Ry. Co 252 Huey v. Gahknbeck 250 lvi TABLE OF CASES CITED. PAGE Huff v. Bennett 179, 281, 342 Huganir v. Cotter 44 Hughes v. Boone 289 v. Detroit, etc. R. Co 272 v. Richter 145 v. U. S 121 Huidekoper v. Cotton 285 Humble v. Shoemaker 330 Humphreys v. N. Y. etc. R. Co 229 Humphries v. Parker 176 Hunnicutt v. Peyton 102 Hunsinger v. Hofer 317 Hunt v. Blackburn 287 v. City of Dubuque 40 v. Gray 214, 215, 228 v. Hunt 119, 139 v. Johnson 107 v. Lowell Gas Co 34, 148 v. Order of Friends 94,107 Hunter v. Atkins 248 v. Gibbs 329 v. Hunter 241, 286 v. Leathley 295 v. N.Y. etc. R. Co 172 v. Pherson ... 57 v. Randall 286 v. State 10, 26 Huntley v. Holt 120 v. Whittier 54 Huntington v. Attrill 36, 139 Huntsman v. Nichols 7, 319 Huntsville, etc. R. Co. v. Corpening 315 Huoncker v. Merkey 321 Hupsch v. Resch 240 Hurlburt v. Bellows 330 Hurlbut v. Hull 317 v. Hurlbut 6o, 289 Hurlbut's Estate 107 Hurley v. Mo. Pac. R. Co 147 v. State 330 Hurst v. Leach 235 Huss, In re 205, 207 Matter of 261 Huston v. Ticknor 180 Huston's Estate 93 Hutchings v. Corgan no Hutchins v. Hubbard 244 v. Hutchins 62 v. Kimmell 156 Hutchinson v. Bernard 312 v- Consumers' Coal Co 284 PAGE Hutchinson V. Manhattan Co 165 Hyde Park v. Canton 241 Hynes v. McDermott... 146, 152, 155,207 Idaho, The 268 111. Cent. R. Co. v. People 145 v. Wren 165 Illinois Land Co. v. Bonner 191 Imhoff v . Richards 343 Indianapolis, etc. R. Co. v. Horst.. . 251 Ingalls v. State 302 Inglis v. Schreiner 311 Ingram v. State 168 Inhab. of Woburn v. Henshaw 291 Inland Coasting Co. v. Tolson 150 Inman v. Elberton R. Co 41 Insley v . Shire 141 Insurance Co. v. Brim 216 v. Folsom 252 v. Mosley 10, 47 v. Newton 57 v. Weide 5 Insurance Co. of North America v. Guardiola 66 International, etc. R. Co. v. Anderson 10 v. McRae 181 Iron Cliffs Co. v. Buhl 117 Irwin v. Thompson 224 Isaacson v. N. Y. C. R. Co 172 Isabelle v. Iron Cliffs Co 68 Iser v. State 286 Isler v. Dewey 337 Jackson v. Allen 268 v. Alsop 230 v. Bailey no v. Brooks 153 v. Chamberlain 181 v. Christman 213 v . Cole 261 v. Comm 89 v. Crissey 1 10 v. French 290 v. Frier 182 v. Frost 115 v. Gager 181 v. Humphrey 281 v. Jackson 104, 156 v. King 104 v . Kingsley 184 v. Lawsou 111 TABLE OF CASES CITED. PAGE Jackson v. Luquere 213 v. McCall 101, 259 v. Moore 261 v. People 44 v, Pittsburgh, etc. R. Co 147 v. Sill 230 v. State 25, 83, 109, no, 158 v. Vail 182, 183 v. Van Dusen 152 v. Waldron 181 v. Witter 115 v. Woolsey 184 Jackson Co. v. Arnold 169 Jacksonville, etc. R. Co. v. Hooper. . 211 Jacob Brandow, The 316 Jacobi v. Order of Germania 113, 207 Jacobs, In re 172 J aggers v. Binning 71 Jameson v. Kent 143 Jamieson v. Ind. Nat. Gas Co 172 Jamison v. People 23, 238 Janes' Estate 256 Janvrin v. Scammon 300 Janzen v. People 35 Jarrett v. Leonard 72 Jarvis v. Brooklyn R. Co 50 Jay v. East Livermore 200 Jaynes, Ex parte 193, 297 Jefferds v. People 85 Jenkins v. State 286 Jenne v. Harrisville 145 Jenner v. Hinch 236 Jennings v. Sturdevant 288 Jensen v. Railroad Co 328 Jessup v. Cook no Jessups v. Osceola Co 40 Jewell's Lessee v. Jewell 104, 105 Jewett v. Banning 20,25 v. Brooks 147 Joannes v. Bennett 188 Jochumsen v. Suffolk Sav. Bk 119 John v. Hatfield 215 John's Admr. v. Pardee 271 Johnson v. Agr. Ins. Co 239 v. Arnwine 188 v. Brown 169 v. Chicago, etc. R. Co 40 v. Comm 7, 28 v. Cowdrey 91 z>. Culver 116 v. Daverne 152 PAGE Johnson v. Day 25 v . Donaldson 193, 294 v. Fry 277 v . Glover 220 v. Holliday 26 v. Hudson R. R. Co 172 v. Johnson 241 v. Josephs 243 v. Kershaw 189 v. Leggett 330 v. Merithew 258 v . People 240 v. Powers 130 v. Raylton 224 v. Russell 58 v. Seidel 212 v. Sherwin :. . 26 v. State 87, 88, 276 v. Stivers 246 v. U. S 19 v. Witt 285 Johnson, Estate of 100 Johnson's Will, In re 99 Johnson Co. v. Wharton 121 Johnston, In re 37 Johnston v. Hedden 172 v . Jones 115 Johnston Steel Rail Co. v. North Branch Co 193, 294 Johnstone v. Lord Spencer 18 Joice v. Branson 277 Joliet v. Blower 117 Jones v. Abraham 305 v. Call 191 v. Comm 12 v. Crowley 218 v. Greaves 239 v. Henry 183 v. Hoey 305 v. Jones 32, 242 v . Keen 311 v. Knauss 59, 188 v. Malvern Co 252 v. Matthews 271 v . McLelTan 49 v. People 134, 274 v. Phelps 209 v. Portland 47 v. Roberts 181 v. Simpson 63 v. State 12, 86, 88, 292, 338, 344 lviii TABLE OF CASES CITED. PAGE Jones v. Tucker 144 v. Underwood 183, 190 v. U. S 168, 169, 173 v. Vert 126 v. Williams 14 Jordan v. Asheville 252 v. Circuit Ct 166 v. Osgood 35 v. Patterson 227 v. State 277 v. Stewart 216, 217 Jorden v. Money 266 Joseph v. Bigelow 220 Judge v. Jordan 303 Judge of Probate v. Stone 242 Kahl v. Memphis, etc. R. Co 147 Kahlenbeck v. State 158 Kain v. Larkin 180 Kaiser v. Alexander 92 Kallenbach v. Dickinson 67, 71 Kallock v. State 238 Kane v. Hibernia Ins. Co 239 v. Torbitt 64 Kansas City v. Vineyard 163 Kansas City, etc. R. Co. v. Burge... 170 v. Ehret 143 v. Murray 293 Karr v. State 152 v. Stivers 93 Keagle v. Pessell 187 Kearney v. Denn 133 v. London, etc. R. Co 250 v. Mayor of N. Y 188 Keating v. People 245 Keeler v. Elston 139 v. Jacobs 4 Keen's Excr. v . Monroe 218 Keener v. Crago 223 . v. State 248 Keep v. Griggs 278, 299 Kehoe v. Comm 87, 276 Keichline v. Keichline 200 Keith Bros. v. Stiles 202 Kelch v. State 247 Kelleher v. Keokuk 142 Keller v. Oilman 47 v. N. Y. C. R.Co 150 Kelley v. Brown 238 v. Kelley 147, 22S v. People 25, 75 PAGE Kelley v. Richardson ... 143 Kellogg, In re 97 Kellogg v. Curtis 244 v. Kellogg 197, 199 v. Secord 108 Kelly v. Cohoes Co 328 v. Drew 241 v. State 56,78 v. West 119 Kelsea v. Fletcher 342, 343 Kelsey v. Hanmer 182 v. Layne 329 v. Universal, etc. Ins. Co 48 Kemp v. King 295 Kempland v. Macaulay 72 Kendall v. Hamilton 131 v. May 272 v. Weaver 318 Kendig v. Overhulser 239 Kendrick v. Beard 37 v. Comm 297 Kennedy v. Comm 166 v. Doyle 90 v. Gifford 161 v. Holladay 286 v. Kennedy 284 v. People 7, 353 v. Ryall 30 Kennon v. Gilmer 50 Kent v. Garvin 94 v. Lincoln 38 v. M ason 242, 343 v. Quicksilver Mining Co 261 v. State 325 j'. Tyson 53 Kentner v. Kline 238 Ky. Cent. R. Co. v. Barrow 40 Ky. Mf'g Co. v. Louisville 242 Kenyon v. Ashbridge 30, 105 v. Kenyon 314 v. Knights Templar Ass'n 227 Keran v. Trice's Excrs 341 Kerr v. McGuire 194 v. So. Park Commrs 37 Kerstner v. Vorweg 314 Kessel v. Albetis 164 Keyes v. State 336 Kibler v. Mcllwain 315 Kidd v. Fleek 239 Kidder v. Blaisdell 106 v. Stevens 262 TABLE OF CASES CITED. lix PAGE Kidwell v. Comm 276 Kiel v. Choate 221 Killam v. Peirce 46 Kilpatrick v. Comm 87, 166 Kimball v. Morrill 1S2 Kimberly's Appeal 141 Kincaid v. Archibald 220 Kindel v. Le Bert 167 King v. Atkins 315 v. Donahue 155 v. Faber 342 v. Gallun 172 v. N. Y. Central, etc. R. Co.. 36, 176 v. Richards 268 v. Ruckman 335 v. State — 247 v. Worthington 180 Kingan v. Silvers Co 215 Kingman v. Cowles 200, 204 v. Tirrell 34 5 Kingsbury v. Moses 176, 191, 312 Kingsford v. Hood 24 Kingsland v. Chittenden 115 Kiugsley v. Davis 131 Kingston Bk. v. Bosserman 218 Kingwood v. Bethlehem 183 Kinney v. Farnsvvorth 101 v . Flynn 183 Kip, In re 299 Kip v. Brigham 118 Kirby v. Comm 12 v. Masten » — 63 v. Tallmadge 3M Kirksey v. Kirksey i54 Kirkstall Brewery v. Furness Ry 70 Kitchen v. Smith 185 Kitson v. Farwell 130 Kitteringham v. Dance 321 Kittredge v. Russell 57 Kitts v . Willson 130 Kleiber v. People's R. Co 14 Knapp v. Roche 131 v. Smith 45 Knarr v. Conaway 167 Knickerbocker v. Wilcox 188 Knickerbocker Ins. Co. v. Pendleton 53 Knight v. Clements 216, 217 v. Cunnington 92 v. Epsom 284,287 v. House — 335 v. Morse 34° PAGE Knight v. Smythe 20 Knights v. Wiffen 265 Knisely v. Sampson. 209 Knobloch v. Mueller 59 Knoll v . State 116, 145 Knower v. Cadden Clothing Co. . . 14, 15 Knowles v. Crampton 177 Knowlton v . Knowlton 189 Knox v. Eden Musee Co 266 v. Wheelock 352 Knoxville Nat. Bk. v. Clark 218, 266 Koccis v. State 142 Koch v. Roth 221 Koehler v. Black River Co 212 Konitzky v. Meyer 132 Koons v. State 154 Koster v. Reed 249 Kramer v. Goodlander 101 Kreitz v. Behrensmeyer 104 Krekeler v. Ritter 129 Kretschmer v. Hard 229 Kreuzberger v. Wingfield 224 Krise v. Neason 188, 197 Kurtz v. Hibner 230 L. &S. W. Bk. v. Wentworth 267 Labar v . Crane no La Bau v. Vanderbilt 69 La Beau v. People 22, 324 Laclede Bk. v. Keeler 335 Lady Dartmouth v. Roberts 372 Lady Ivy's Case 29 Lafferty v. Lafferty 218 Lafflin v. Buffalo, etc. R. Co 38 La Fontaine v. Underwriters 297 Lahey v. Ottman & Co 13 Laingf. United N. J. R. Co 37, 143 Laird v. Campbell 91 Lake v. Clark 36 Lake Erie, etc. R. Co. v. Mugg 5° Lake Ontario Bk. v . Judson 242 Lake Shore, etc. R. Co. v. Stupak... 160 Lamagdelaine v. Tremblay 160 Lamar v. Micou 62, 164 v. Pearre 58, 95,99 Lamb v. Camden, etc. R. Co 243 v. Lamb 322 v. McConkey 122 v. Munster 297 v. State 3°2 Lambert v. People 73 In TABLE OF CASKS CITED. PAGE Lambie, In re 99, 263 Lamoreaux v. Att'y General 106 Lampe v. Kennedy 61 Lamson v. Boyden 297 Lanark v. Dougherty 176 Landaff, Petition of 66 Landell v. Hotchkiss 41 Lander v. Arno 130 v . People 8,i2 Landers v. Bolton 181 Lane v. Boicourt 293 v. B. & A. R. Co 65 v. Brainerd in v. Bryant 13 v. Cole 193, 294 v. Lane 100 v. Moore 49 v. Wheelwright 147 Lanergan v. People 26 Lanfear v. Mestier 169 Lang v. Sanger 31 v. State 52 Langer v. Tate 309 Langhorn v. Allnutt 71 Langhorne v. Comm 326 Langley v. Wadsworth 321, 324 Langworthy v. Green T'p 3i,39, 176 Lanning v. Chicago, etc. R. Co 41 v. Sisters of St. Francis 229 Lanpher v. Clark 50 Lansing v. Coley 312 Lapham v. Kelly 344 Larkin v. Hapgood 46 Laros v. Comm 80 La Rosae v. State ... 301 Larrabee v. Minn. Tribune Co... 45, 161 Larson v. Dickey 4 ■ Lasater v. Van Hook 197 Lassone v. Boston, etc. R. Co 91, 95 Last Chance M ining Co. v. Tyler Co. 122 Latham v. Brown 143 Lathrop v . Adams 161 v. Bramhall 190, 224, 31 1 Lauderdale Peerage Case 105 Laughlin v. Street R. Co 142 Lavin v. Emigrant Sav. Bk 119 Lawler v. McPheeters 327 Lawrence v. Kimball 95 v. Tennant 115 Lawson v. Bachman 194 v. Boyden 294 PACE Lawson v. Conaway 125 v. Glass 341 v. Vacuum Brake Co 309 Lay Grae V. Peterson 65 Lay man's Will 246, 289 Lazier v. Westcott 140, 168, 171, 198 Lazzaro v. Maugham 191 Leach v. Bancroft 176 v. Linde 205 Leache v. State 313 Leahey v. Cass Ave. etc. R. Co 13 Leahy v. Leahy 277 Leas v. Walls 265 Leather Mfrs. Bk. v. Holley 264 Leavitt v. Baker 312 v. Kennicott 227 Leconfield v. Lonsdale 260 Lee v. Pain 234 v. Springfield Co 143 v. State 24 v. Wheeler 31 Leeds v. Cook 194 Lees v. U. S 299 Lefever v. Johnson 57 Lefevre v. Lefevre 233 v. State 77 Le Franc v. Richmond 211 Leggatt v. Tollervey 118 Legge v. Edmonds 256 Leggett v. Glenn 296 Lehigh R. Co. v. McFarlan 259 Lehman - ^. Central R. Co 265 v. Glenn 114 Leidlein v. Meyer 177 Leinkauf v. Brinker 160 Leland v. Cameron 91 v. Knauth 322 Lemmon v. Hartsook 101 v. Moore 303 Lenahan z\ People 174 Lendberg v. Iron Mining Co 116 Lennon v . Rawitzer 243 Lent v. N. Y. & M. R. Co 125 Leonard v. Bolton 301 v. Pope 45 v. Southern Pac. Co 157 Leppla v. Tribune Co 280 Lerch Hardware Co. v. First Nat. Bk. 244 Lerned v. Johns 221 Leroy, etc. R. Co. v. Butts 329 Lessee of Clark v. Courtney 181 TABLE OF CASES CITED. PAGE Lester v. McDowell 316 v. People 294 v. State 341 Leverich v. State 20 Levison v. State 76 Levy v. People 134 Lewars v. Weaver 240 Lewis v. Comm 20 v. Douglas 229 v. Eagle Ins. Co 316 v. Eastern R. Co 38 v. Lee Co 70 v. Lewis 301 v. Ocean Nav. Co 134 v. Payn 179 v. Seabury 226 v. Shull 239 v. Springfield Co 144 v. State 337 v. Sumner 68 v. Woodworth 67 Lewis's v. Lewis 69 Ley v. Barlow 295 L'Herbettew. Pittsfield Nat. Bk.... 189 Libby v. Brown 97 Lichtenhein v. Fisher 37 Lichtenwallner v. Laubach 47 Lieb v. Lichtenstein 121 Liggett v. Glenn 296 Lightfoot v. People 333 Lilienthal's Tobacco v. U.S 243 Lilley v. Parkinson 116 Lillibridge v. Barber 238 Lilly v . People 247 Lime Rock Bk. v. Hewett 109 Linck v. Litchfield 263 Lincoln v. Battelle 198, 207 v. Claflin 15, 44 v. French 261 v. Haugan 206 v. Taunton Mf'g Co 151 Lindley v. Lacey 226 v. Lindley 239 v. Sullivan 242 Lingreen v. 111. Cent. R. Co 278 Linn v. Gilman 37 Linnard's Appeal 217 Linsday v. People — 23, 31, 149, 156, 276 Linthicum v. Ray 249 v. Remington 290 Lippincott v. Wikoff 279 PAGE Litch v. Clinch 125 Little v. Edwards 313 v. Herndon 217 v. McKeon 282 v. People 238 Liverpool St. Co. v. Phenix Co.. 163, 164 Livingston v. Arnoux 96, 209 v. Delafield 252 v. Kriersted 272 Llano ver v. Homfray in Lloyd v. Matthews 164 Lockard v. Comm 335, 336 Locke v. Express, etc. Co 38 Lockwood v. Doane 44 Loder v. Whelpley 247 Loeb v. Willis 122 Loftus v. Union Ferry Co 38 Logan v. U. S 273 Lombar v. East Tawas 38 Londener v. Lichtenheim 273 Long v. Booe 47 v. Colton 101 v. Drew 344 v. Hartwell 223 v. McDow 213 v. Spencer 210 Loomis v . N. Y. etc. R. Co 68 v. Wadhams 61, 178 Loos v. Wilkinson 62,63 Lorah v. Nissley 211 Lord v. State 277 Lorillard v. Clyde 120 Lorimer v. St. Paul Ry. Co 251 Loring v. Whittemore 179, 186 v. Worcester, etc. R. Co 41 Losee v. Losee 56 Lothian v. Henderson 126 Lotto v. Davenport 161 La. Nat. Bk. v. Laveille 269 Louisville, etc. R. Co. v. Buck 13 i'. Lucas 145 v. Pearson 12 v. Spencer 250 z>. Wallace 143 v. Wood 176, 177 v. Wright 74 Lovat Peerage Case 105, 106 Love v. Masoner 340 v. People 276 Lovejoy v. Howe 176 v. Spafford 265 Ixii TABLE OF CASES CITED. PAGE Loveland v. Cooley 285 Lovell v. Quitman 217 v. Wentvvorth 344 Loveridge v. Hill 3'6 Lovcsy v. Smith 303, 304 Low v. Payne 92 Low's Case 286 Lowe v. Dalrymple 14, 16 Lowell Mfg. Co. v. Safeguard Ins. Co 236 Lowenstein v. Carey 192 Lowery v. Telegraph Co 266 Lowney v. Perham 299 Lowry v. State 88 Luby v. Hudson River R. Co 13 Lucas v. Brooks 279 v. De La Cour 71 v. State 347 Luce v. Dorchester Ins. Co 150 Lucier v. Pierce 225 Lucy v. Tenn. etc. R. Co 61 Ludeke v. Sutherland 226 Ludlow v. Warshing 149 Luetgert v . Volker 36, no Luft v. Lingane 287 Lund v. Tyngsborough io Lundberg v. Northwestern Elev. Co. 328 Lurssen v. Lloyd 319 Lurton v. Gilliam 206 Lush v. Druse 182 Lyell v. Kennedy 113,292 Lyman v. Bechtel 92 v. Boston 143 v. Philadelphia 335 Lynch v. McHenry 223 Lynn v. Lyerle 289 Lyon v. Manning 72 v. Perin Mfg. Co 121 v. Prouty 280 v. Ricker 95. 99 Lyons v. Lawrence 23 v. People 84 Mabie, Matter of 247 Macdonald v. Dana 222 Macdougal v. Purrier 261 MacDougall v. Central R. Co 251 Machine Co. v. Batchelder 294 ' Macey v. Stark 136 M ack v. State 84 Mackay v. Easton 117 PAGE Mackie v. Story 220 Mackinnon v. Barnes 167 M aclean v. Scripps 180 Macomb v. Wilkinson 91 Madden v. Mo. Pac. R. Co 150 Madge v. Madge 301 Magee v. People 337 v. Raiguel 63 v. Troy 38 Maggi v. Cutts 50 Magie v. Herman 180, 191 Mahankew. Cleland 297 M ahoney v. Belford 161 Maine v. People 13, 86, 97 Making. Attorney General 52 Malachi v. State 302 Malcolm v. Fuller 160 Malcolmson v. O'Dea 355 M alloney v. Horan 121 Mallory v. Benjamin 296 Malone v. Dougherty 223 M ande ville v . Reynolds . 68, 137, 178, 188, 191 Manhattan Ins. Co. v. \2& St. etc. R. Co 65 Manistee Nat. Bk. v. Seymour 74 Manke v. People 150 Mann v. Langton 3S4 v. Mann 232 Mansfield v. Edwards 221 Mansfield Coal Co. v. McEnery 7 Mf'rs& Traders' Bk. v . Koch 176 Marble z.'. McMinn 115 Marcy v. Barnes 155 Marine Investment Co. v. Haviside. 210 Marine Nat. Bk. v. Nat. City Bk.... 267 M arks v. Beyfus 283, 404 v. Orth 206 Marlow v. Marlow 189 Marsh v. McNair 221 v. Smith 120 Marshall v. Brown 116 v. Chicago, etc. R. Co 87 v. Davies 3 X 9 ' v. Hancock 111,154 v. Holmes 137 Marshfield, In re 394 Marsteller v. Marsteller 120 Marston v. Bigelow • 54 v. Dingley 147,261 v. Downes 187 Martin v. Capital Ins. Co 26,317 TABLE OF CASES CITED. PAGE Martin v. Cope no v . Good 342, 344 v. Gray 136 v. McCray 180 v . N. Y. etc. R. Co 9 v. Rector 213 v. Shannon 32 v. State 30 v. Stoddard 263 v. Towle 328 Martin, Will of 247 Martineau v. May 326 Marx v. McGlynn 48, 254 Maryland v. Baldwin 156 Mason v. Libbey igi v. Phelps 341 v. Vestal 338 Masserz*. Strickland 118 Massey v. Allen 364 v. Farmers' Nat. Bk 190 Mather v. Eureka Co 345 v. Parsons 176 Mathews v. Munster 69 Mathias v. O'Neil 342 Matteson v. N. Y. Cent. R. Co 47 Matthews, In re 19, 166 Matter of 256 Matthews v. Hoagland 288 v. Matthews 316 Mattox v. United States 86, 109, 284, 285, 327 Maullt*. State 81 Mauri v. Heffernan 188 Maus v. Borne 61 Maxey v. Strong 67 Maxted v. Seymour 219 Maxwell v. Chapman 94 v. Hofheimer 190 v. Kennedy 162 v. State 248 v. Wilkinson 344 May v. Bradlee 30, 142 Maybee v. Avery 123 v. Sniffen 216 Mayer v. Appel 327 v. Dean 220 v. People 42, 44 Maynard v. Buck 50 Mayo v. B. &. M. R. Co < 252 v. Mayo 298 Mayor v . Brady 132, 137 PAGE Mayor of Baltimore v. Smith Co. 37, 143 v. War 187, 192 Mayor of Bradford v. Pickels 260 Mayor of Bristol v. Cox 291 Mayor of Doncaster v. Day 108 Mayor of N. Y. v. Fay 58 v. Sands 172 v. Second Avenue R. Co 94 Mayor of Swansea v. Quirk 290 McBee v. Fulton 239 McBride v. Grand Rapids 31 v. Wallace 319 McCaffrey v. Carter 124 McCahill v . Equitable Assur. Soc 136 M cCartee v. Camel 258 McCarthys. McCarthy 301 v. Marsh 120 McCarty v. Terry 104 McCausland v. Fleming 103, 115 McClafferty v. Philp 252 McClanahan v. West 136 McClaskey v. Barr 107 McCleery v. Thompson 66 McClellan v. St. Paul, etc. R. Co. . . . 262 M cClerkin v. State 206 McClurgw. Howard 66 v. Terry 127 McCollister v. Yard 188 McCombs v. State 339 McConkey v. Cockey 254 v. Coram 35 McConnell v. Hannah 61 v. Osage 40, 293 v. Wildes 188 McConologue's Case 123 McCorker v. Banks 244 McCormick v. Herndon . 166 v. Pa. Cent. R. Co 343 McCormick Co. v. Wilson 222 McCormicks v. Williams 63 McCown v. Quigley 249 McCoy v. Cassidy 211 v. McCoy 243 McCreery v. Day 223 McCue v. Coram 21 McCulloch v. Campbell 246 v . Dobson 40, 327 McCutchen v. Loggins 335 McDonald v. Carnes 91 v. McDonald 99, 154, 288 v. Montgomery R. Co 252 lxiv TABLE OF CASES CI'I 1 . 1 >. PAGE McDonald v. Savoy 51, 160 v. State 165 McDonough v . Jolly 232 McDowell v. TEtna Ins. Co 180, 192 McElheny v. Bridge Co 143 v. Pittsburgh, etc. R. Co 318 McEwan v. Zimmer 140 M'Fadden v. Kingsbury 190 v. Santa Anna, etc. R. Co 320 McFadin v. Catron 328 McFarlan v. Triton Ins. Co 113 McFarland v. Accident Ass'n 54 v. Sikes 222 McGarvey v. Darnall 130 McGean v. M anhattan R. Co 350 McGillw. McGill 50 McGoldrick v. Traphagen 92, 93 McGowan v. Chicago, etc. R. Co 319 v. McDonald 174 McGrail v. McGrail 301 McGrath v. Clark 218, 26$ v. Seagrave 281 McGregor v. Wait 65, 184, 194 McGrell W.Buffalo Office Bld'g Co... 38 McGuff v. State 177, 272 McGuiness v. School District.. . 187, 345 McGuire v. McDonald 325 v. Ogdensburgh, etc. R. Co. . . . 40 v. People 272 Mcintosh v. Mcintosh 314 Mclntyre v. B. & M. R. Co 146 v. Levering 161 v. N. Y. C.R. Co 110 McKay v. Lasher 157. 182 McKeanw. R. Co 148 McKee v. Nelson 144 McKeen v. Gammon 68 McKelton v. State 274 McKennap. Paper Co 32 McKillop v. Duluth R. Co 142 McKinney v. Collins 127 v. Grand St. etc. R. Co 293 v. People 307 v. Salem 59 McKinnon v. Bliss 101, 112, 114, 172 McKivitt v. Cone 343 McLain v. Comm m, 149. 348 McLaughlin v. Cowley 161 v. McLaughlin 62 v. Mencke 323 v . Menotti 205 PAGE McLean v. Fleming 269 v. Jephson 135 v . State 277 McLellan v. Cox 71 v. Longfellow 287 McLeod v. Ginther 10 McLoghlin v. Mohawk, etc. Bk 6, 31 McMahon v. Harrison 51 v. McElroy 257 McMakin v. Weston 191 McManus v. Comm 22 McMaster v. Schriven 287 McMechen v. McMechen 246, 247 McMeed v. Comm 29 McMicken v. Comm 132 McMillan v. Bissell 221 v. McDill 69 McMillen v. Andrews 281 McMullen v. Rafferty 67 McMurray's Heirs v. Erie 261 McMurrin v. Rigby 25, 328 McNair v. Comm 152 McNamara v. Gargett 219 v. State 109 McNeilan's Estate 66 McNerney v. Reading 330 McPherson v. Rathbone 192 McQueen v. State 78, 159 McRae v. State 29 McReynolds v. Burlington, etc. R. Co. 242 v . Longenberger 213 McRoberts v. Bergman 259 McShane v. McShane 301 McSweeney v. McMillen 60 McVey v. Cantrell 312 McVicker v. Conkle 181, 184 Mead v. Husted 41, 239 v. Parker 223 Meade v. Smith 284 Meadowcroft v. People 4 Meakings v. Cromwell 294 Mears v. Cornwall 322 Mechanics' Bank v. Gibson 171 Medary v. Cathers 186 Meeker v. Meeker 147 Meiss v. Gill 129 Mclcher v. Flanders 181 Melia v. Simmons 119 Mellor v. Mo. Pac. R. Co 293 Meltzger v. Doll 28 Melvin v. Melvin 355 TABLE OF CASES CITED. PAGE Memmer v. Carey 124 Memphis, etc. R. Co. v. Hembree. .. 188 Menominee Co. v. Milwaukee, etc. R. Co 172 Mercein v. People 123 M ercer v. Vose 148 Merchants' Nat. Bk. v. Hall 165 Meriden Bk. v. Wellington 49 Merk v. Gelzhaeuser 239 Merkel's Appeal 24 Merkle v. Bennington 13 Merluzzi v. Gleason 322 Merriam v . Swensen 62 Merrick v. Parkman 63 Merrill v. Merrill 344 Merriman v. State 335 Merritt v. Cornell 212 v. Day 66 Mersman v. Werges 218 Metcalf v. Gilmore 121 Metheny v. Bohn 106 Metropolitan Ins. Co. v. Bender ... 212 Metr. R. Co. v. Collins 9, 10 Meyer v. Huneke 214 v. Sefton 189 Meyer Drug Co. v. McMahan 329 Miami Nat. Bk. v. Barkalow 122 Michels v. Olmstead 221 Michigan Central R. Co. v. Gilbert. . 37 Michigan Land, etc. Co. v. Republic T'p 191. 193 Milbank v. Jones 319 Miles v. Andrew 175 v. Lefi 264 v. State 156, 248 v. U. S 237 Milford v. Greenbush 206 M ill's Case 301 Mill Dam Foundery v. Hovey 212 Miller v. Amsterdam 135 v. Binder 212 v. Cook 62 v. Curtis 161,339 v. Dayton 15 v. Gambie 226 v. Irish 30 v. Lathrop 73 v. L. 1. R. Co 17 v. Miller 67, 125 v. Miller's Admr 317 v. People 79 PAGE Miller v. Rowan 59 v. Shay 92 v. Stark 214 v. State '. 79, 248 v. Stevens 232 v. Travers ' 233 v. Western, etc. R. Co 338 Miller's Estate 247 Milliken v. Barr 194 Mills v. Barber 244 v. Davis 97 v. Green 169 v . Hallock 19 v. Oddy 187 Milwaukee R. Co. v. Kellogg 145, 148 Mimnaugh v. Partlin 121 Minchin v. Minchin 221 Minet v. Morgan 291 Mink v. State 256 Minneapolis Mills Co. v. Minn. etc. R. Co 108 Minters v. People 299 Mission of the I. V. v. Cronin 259 Missionary Soc. v. Mead 233 Mississippi Co. v. Vowels 61 Missouri v. Kentucky 115 Mo. Pac. R. Co. v. Baier 13 Mitchell v . Jacobs 189 v. Pitts 311 v. Sawyer 330 v. So. Pac. R. Co.. 14 v. State 88 v. Work 161, 339 Mitchell's Case 294, 296 Mix v. Royal Ins. Co 215 Mixter v. Imperial Coal Co 244 Moats v. Rymer 282, 294, 296 Mobile, etc. R. Co. v. Jurey 190 v. Ladd 318 v. Williams 338 Mockabee v. Comm 88 Mode v. Beasley 172 Moeck v. People 86 Moeckel v. Heim 280 Moett v. People 7, 303 Moffatt v. Tenney 251 Mohr v. Miesen 147 Moller v. Moller 301 M olson's Bk. v. Boardman 146 Monaghan v. Agr. Ins. Co 239 Munahan v. Worcester 160 l*vi TABLE OF CASES CITED. PAGE Monfort v. Rowland 316 Monroe v. Douglas 163 v. Lattin 148 Montag v. People 9 Montague v. Dougan 92 M ontana R. Co. v. Warren 143 Montgomery v. Allen 74 v. Be vans 262 v. Brush 72 v. Montgomery 256 v. Pickering 287 v. State 89, 90 Montgomery, etc. R. Co. v. Mallett.. 250 Moody v. Davis 176 v. Tenney 46 Mooers v. Bunker 104 Moog v. Randolph 165 Mooney v. Hinds 140 Moore v. Coram 248 v. Gaus Mfg. Co 197 v. Hamilton 61 v. Livingston 182 v. McDonald 49 v. Meacham 10 v. Moore no v. People 324 v. Richmond 6, 38 v. Shields 15 v. State 156 v. Williams 137 Moots v. State 91, 342, 344 Moran v. Prather 228 Morehead v. State 75 Morehouse v. Morehouse 10S v. Mathews 143 Morelock v. State 341 Morey v. Hoy t 178 Morford v. Peck 333 Morgan v. Burrows 231 v. Griffiths 226 v. Railroad Co 264 v. Roberts 282 v. State 238 Morgan's Assignees v . Shinn 221 Moriartyz>. London, etc. R.Co. 23,64,361 Morley v. Green 295 Morrill z;. B.&M.R. Co 194 v. Foster io4 v. Morrill 137 v. Robinson 178 v. Titcomb 61 PAGE Morris v. Davies 105, 113, 257 v. East Haven 51 v. French 21 v. Harmer 114 v. Lachman 344 v. Miller 155 v. Morris 293 v. N. Y.etc. R.Co 293 v. Patchin 202 v. Spofford 28 v. White 305 Morrison v. Chapin 341 v. Emsley 104 v. Porter 154 v. Smith 254 Morrow v. Comm 194 Morse v. Hewett 171 v. Minn. etc. R. Co 31, 34 v. Stearns 230 M orss v. Morss 281 v. Palmer 337 v. Salisbury 61 Mortimers. McCallan 188 Mortlock v. Williams 192 M orton v. Heidorn 247 v. State 9 Moseley v. Mastin 171 Moses v. Central Pk. etc. R. Co 287 v. Cromwell 286 v. U. S 132 Mosley v. Ins. Co 160 Mott v . Consumers' Ice Co 57 v . Mott 254 v. Richtmeyer 209, 220 Mowatt v. Carow 233 Mowell v. Van Buren 288 Mowry v. Chase 145 v. Smith 318 Moxie Co. v. Beach 294 Moye v. Herndon 218 Muggleton v. Barnett 18 Muldoon v. Deline 231 Muldowney v. 111. Cent. R. Co 145 Mulford v. Mullei 289 Mullan v. State 165 Mullany v. Duffy 101, 102 Mullanphy Bk. v. Schott 188 M ullen v. St. John 250 Muller v. McKesson 44 v. St. Louis Hospital Ass'n 320 Mullin, In re 287,293 TABLE OF CASES CITED, lxvii PAGE Mumford v. Bowne 169 Munday v. Vail 130 Munn v. Godbold 186, 191 Munoz v. Wilson 212 Munshower v. State 56, 117 M unson v. Atwood 239 Murch v . Swensen 62 Murdock v. Waterman ^ 71 Murphy v. Chase 261 v. Gates 58 v. Hanscome 240 v. People . 19, 80 v. Purdy 311 v. State 75, 79, 248, 325 v. Waterhouse 289 Murray v. Chase 22 v. Deyo 118 v. Elston 193 v. Klinzing 218 V. Murray 241 v. N. Y. Life Ins. Co 242 Musselman v. Wise 174 Musser v. Stauffer 146 Mutchaf. Pierce 13 Mutual Ben. Co.'s Petition 258 Mutual Ins. Co. v. Corey 282 v. Tisdale 119, 120, 133 Mutual Life Ins. Co. v . Anthony 108 v. Hillmon 27, 47, 99 v. Norris 264 v. Pinner 138 Myers v. Hudson Iron Co 50 v. Munson 219 v. State 76, 298 N. & W. Branch R. Co. v. Swank 225 N. & W. R. Co. v. Harman's Admr. . 116 Nalley v. Hartford Carpet Co 31 Nance v. Lary 264 Napton v. Leaton 139 Nash v. Classen 165 Nashville, etc. R. Co. v. Johnson 39 National Bank v. Bangs 267 v. Peabody -. 140 v. Wallis 140 v. Zeims 264 Nat. Bk. of Commerce v. Chicago, etc. R. Co 269 v. Meader 67 Nat. Bk. of Delavan v . Cotton 69 PAGE Nat. Bk. of Dubois v. Nat. Bk. of Williamsport 341 Nat. Syrup Co. v. Carlson 331 Nat. Ulster Co. Bk. v. Madden 215 Naumberg v. Young 220, 222, 226 Nay v. Curley 318 Neal v . Flint 222 Neall v. Hart 27 Nealley v. Greenough 189 Needham v. Bremner 119 v. Thayer 140 Needles v. Hanif an 236 Neelz>. Potter 48 Neeley v. State .... 79 Neely v . Neely 56, 182 Neese v. Farmers' Ins. Co 147 Negley v. Jeffers 223 Neil v. Case 217 v. Jakle 25 Neill v. Duke of Devonshire 18, 100 Neilson v. Hartford St. R. Co 313 Nellis v. Cramer 161 Nelson v. Flint 72 v. Mayor of New York 91 v. Pierce 239 Nepean v. Doe 257 v. Knight 257 Nesbitt v. Nesbitt 241 v. Riverside Dist 121 Nevitt v. Woodburn 132 Nevling v. Coram 7, 237 Newbould v. Smith 96 Newcomb v. Griswold 325 v. Newcomb 141 Newell v. Carpenter 129 v. Nichols 258 Newhall v. Appleton 37 N. H. Ins. Co. v. Healey 286 New Haven v. Chidsey 132 New Haven, etc. R. Co. v. Goodwin. 91 N. J. Exp. Co. v. Nichols 251 N. J. Traction Co. v. Brabban 145 New Jersey Zinc Co. v. Lehigh Zinc Co 60, 116, 147, 1S2, 190 Newman v. Baker 222 v. King 214 v. McComas 68 v . Newman 307 New Orleans, The 71 Newport v. State 263 New Portland v. Kingfield 326 lxviii TABLE OF CASES CITED. PAGE Nevvsom v. State 238 Newton v. Chaplin 193 v. Porter 312 v. State 84 N. Y. etc. Ferry Co. v. Moore 30 N. Y. etc. R. Co. v. Kellam 327 v. Luebeck 141 N. Y. Guaranty Co. v. Gleason 15 N. Y. Mutual Life Ins. Co. v. Arm- strong 42 N. Y. Traction Co. v. Brabban 145 Nicholas 1 Case 35 Nicholls v. Webb 91 Nichols v. Allen 1S6 v. Haynes 92 v. Jones 68 v. Kingdom Iron Co 188 v . Nichols 140 v. Vinson 93 v. White 67 Nicholson v. State 77 v. Waf ul 7 Nickerson v. Gould 5.7 v. Spindall 180 v . Swett 215 Nicolay v. Unger 176 Nicoll v. Burke 179,223 Niendorff v. Manhattan R. Co 148 Nix v. Hedden . 171, 173 Nixon v. Palmer 261 Noble v. Fagnant 250 v. Union River R. Co 135, 137 v. Ward 374 Noble, Matter of 273 Noden v, Murtay 1S0 Nofire v. U. S 261 Noonan v. State 145 Norris v. Mersereau 132 North v. People 87 North Brookfieldc'. Warren.. 105, 107, 188 Northern Pac. R. Co. v. Urlin 47, 319 Northrop v. Hale 105, 106 Northumberland Co. v. Zimmerman. 199 Norton v. Huxley 130 v . Paxton 246 Norwegian Plow Co. v. Hanthorn... 318 Norwich Co. v. Flint 8 N01 w 1 v. Andrews 270, 336 Nouvion V. Freeman 139 Nowlin V. Burwell 213, 214 Noyes v. State 276 PAGE Nudd v. Burrows 15 Nunes v. Perry 152 Oakland Ice Co. v. Maxcy 318 Oaksmith's Lessee v. Johnston 259 O'Berg v. Breen 92 O'Blenis v. State 339 O'Brien v. Barry 252 v. Comm 28 v. Frasier 161 v. State 298 O'Bryan v. Allen 280 Ocean Bk. v. Carll 91 Ocean Beach Ass'n v. Brinley 19 Oceanic Nav. Co. v. Compania 131 Och v. Mo. etc. R. Co 243 Ochs v. People 15, 16 Ochsenbein v. Papelier 137 Ockershausen v. Durant 7 O'Connell v. People 243 Odiorne v. Marine Ins. Co 228 Oelberman v. Merritt 282 O'Gara v. Eisenlohr 258 Ogle v. Baker 137 Ohio v. Hinchman 164 Ohio Coal Co. v. Davenport 62 Ohio, etc. R. Co. v. Rooker 68 v . Stein 10, 65 Ohio Valley R. Co. v. Watson 39 Ohlquest v. Farwell 68 Olcott v. Tioga R. Co 53 Oldtown v. Shapleigh 102 Oliver, Information against 251 Oliver v. Bennett 68 v. Palmer 167 v. Pate 291 Olmstead v. Bach 133 v. Webb 289 Olmsted v. Gere 151 Olson v. Peterson 301 Omaha R. Co. v. Martin 251 Omichund v. Barker 307 O'Mulcahy v. Holley 264 ( ')' Neil v. Dry Dock, etc. R. Co 150 Opinion of Justices 165, 170, 173 Oppenheim v. Wolf 172 Ordway v. Haynes 116 v. Sanders 9 Oregon Steamship Co. v. Otis. 54,58, 179 O'Reilly w. N.Y. etc. R. Co 147 O'Riley v. Clampt 333 TABLE OF CASES CITED. lxix PAGE Orlando v. Gooding 215, 217 Orman v. State 288 Ormsby v. People 15 Orr v. Hadley m v. Miller 280 v. State 245 Orthwein v . Thomas 120 Osborn v. Blackburn 164 v. Kistler 211 v. Pell in Osborne v. O'Reilly 315 Oscanyan v. Arms Co 68 Osgood v. Coates 18 v. Eaton 63 v. Nichols 268 Oskamp v. Gadsden 175 Ossipee v. Grant 52 O'Sullivan v. Overton 181 Otis v . The Rio Grande 135 O'Toole, In re 294 Otterson v. Hofford 56 Otto v. Trump 188, 204 Overlook v. Hall 194 Owen v. Cawley 59 v. State 278 Owens v. Owens 286 v. State 109, 344 Pacific Gas Co. v. Wheelock 146 Packard v. Bergen R. Co 7 v. Reynolds 281 Packer v. Steward 223 Packet Co. v. Sickles 284 Paddock v. Forester 74 Paden v. Briscoe 258 Page, In re 99 Page v. Cole 224 Paige v. Cagwin 63 v. Carter 342 v. Willett 174 Paine v. Ins. Co 164 v. Jones 215 v. Tilden 337 v. Upton 220 Painter v. People 35 Palmer v. Albee 228 v. Crook 47 v. Culbertson 221 v. People 286 v. Sanger 120 v. State 77 PAGE Palmer v. Trower 324 Pape v . Wright 330 Papendick v. Bridgewater 99" Paramore v. Lindsey 210 Park v. N. Y. C. R. Co 160 Park Bros. v. Blodgett Co 225 Parke v. Neely 209 Parker v. Butterworth 67,68 v. Dudley 340 v . Foote 260 v. Snyder 221 v. State 12,24,249,313 Parkhurst v. Berdell 137, 280 Parkinson v. Nashua, etc. R. Co 50 Parks v. Mosher 131 Parr v. Grecnbush 200 Parsons v. Mfrs. Ins. Co 342 Passmore v. Passmore's Estate 287 Patch v. White 231 Pate v. State 21 Paterson v. State 327 Patrick v. Shaffer 121 Patten v. Glover 288 v. Moor 291 Patteson, Matter of 133 Patterson v. Crowther 224 v. Gaines , 131, 255 v. Tucker 185 v. Wabash, etc. R. Co..-. 70 v. Winn 198 Pattillo v. Alexander 147 Patton v. St. Louis, etc. R. Co 41 Paul v. Rider 221 Paulk v. State 32 Pawashick, The 146 Payne v. Hodge 94 v. O'Shea 139 v. State 32S Payson v. Lamson 222 Peak v. State 89 Pearce v. Foster 296 v. Hooper 184 v. Kyzer 104 v. Langfit 170, 172 Pearse v. Pearse 291 Pearson v. Hardin 155 v. Pearson 107 Pease v. Burrows 272 v. Cole 243 v. Shippen 161 Peckf. Brewer ..•• 384 Ixx TABLE OF CASES CITED. PAGE Peck v. Lake 343 v. Ryan 26 v. State 335.336 v. Valentine 343 Pecker v. Sawyer 271 Peckham Iron Co. v. Harper 59 Peebles v. Foote 311 Peet v. Peet 156 Pufferling v. State 339 Pelletreau v. Jackson 182 Pells v. Webquish 113 Pellum v. State 286 Pence v. Waugh 287, 312, 328 Pendleton v. Empire, etc. Co 327 Pennell v. Transportation Co 224 Pennoyer v. Neff 127, 140 Pennsylvania Co. v. McCann 4 v. Newmeyer 177 v. Versten 270 Pennsylvania Coal Co. v. Kelly 157 Pa. Co. for Insurance v. Phila. etc. R. Co 35 Penn. Ins. Co. v. Wiler 293 Pennsylvania R. Co. v. Fortney 329 v. Lyons 13 Penny v. Corwithe 214 Penny wit v. Foote 139 Pensacola, etc. R. Co. v. Brayton. . . 193 Pentecost v. State 188 People v . Abbott 245, 335, 339 v. Ah Fat 337 v. Ah Fook 21 v. Ah Lee 12 v. Aleck 15 v. Amanacus 337 v. Anderson 116 ^.Anthony 4 v. Armstrong 302 v. Arnold 15, 16 v. Augsbury 148 v. Azoff 286 v. Baird 43 v. Baker 119, 127 v. Bank of N. America 266 v. Barber 148 v. Barker 77, 8o, 238, 287 v. Beach 318 v. Beckwith 3,31 v. Bemmerly 88 v . Benson 339 v . Bentley 16 PAGE People v. Blakeley 288 v. Board of Health 135 v. Bolanger 302 v. Boling 248 v. Borda 232 v. Boscovitch 313 v. Brady 123 v. Briggs 239 v. Brooks 170, 326 v. Buchanan 29, 290, 318 v. Buckland 131 v. Burns 274, 313 v. Calder 205 v. Campbell 20 v. Cannon 4, 251 v. Carney 32 v. Case 330 v. Chapleau 84, 85 v. Chin Hane 175 v. Chin MookSow 88, 341 v. Clark 303 v. Cole 316 v . Collins 135 v. Conkling 157 v. Conroy 23 v. Cook 308 v. Copsey 273 v. Corey 62, 154 v. Cotta 341 v. Coughlin 248 v. Court of Sessions 256 v . Cox 78, 79, 319 v. Craig 21 v. Crapo 321 v . Crowley 276, 325 v. Davis 9, 13. 14. 87, 90 v . Dawell 139 v. Deacons 79 v. De Kroy ft 155 :•. Denison 115, 130 v. Dibble 43 v. Dimick 42, 51 v. Dixon 29 v. Dohring 281, 285 v. Dow 113 v. Dowdigan 109, 347 v. Dowling 276 v. Downs 237 v. Driscoll 26 v. Druse 20 v. Duncan 25 TABLE OF CASES CITED. lxxi PAGE People v. Durrant 324 v. Eaton 20 v. Eckman 78 v. Elliott 302 v. Evans 89,158 v. Everhardt 43 v. Ezzo 238 v. Fair 158,159 v. Fairchild 238 v . Fehrenbach 16 v. Fish 109, in, 263, 347 v. Flaherty 339 v. Foley 52 v. Fong Ah Sing 86,248 v. Foote 321 v. Forbes 297, 299, 300 v. Fox 76, 77, 85 v. Freshour 297 v. Fulda 251 v. Fulton Fire Ins. Co 105, 106 v. Gage 24, 25 v. Gallagher 292, 302 v. Gardner 109, 177, 298 v. Gastro 171 v. Gates 292 v. Gay 338 v. Germaine 314 v. Glover 339 v. Goldenson 177 v. Gonzalez 176 v. Gordon 109, 277 v. Gray 87 v. Greenwall 326, 335 v. Grunzig 89 v. Hall 90 v. Harris 4, 20, 35, 293 v. Harrison 158 v. Hayes 276, 280 v. Hendrickson 7 v. Hennessy 75 v. Henssler 44 v. Hickman 75, 336 v. Hillhouse 324 v. Hodgdon 89 v. Hope 22 v. House of Mercy 135 v. Hovey 314 v. Hoy Yen 80 v. Hulbut : 285 v. Hunt 284 v. Irving , 322 PAGE People v. Jackson 307 v. Jassino 158 v . Johnson • 19, 31, 177, 339 v. Jones 20, 190 v. Kaminsky 340 v. Kearney 301 v. Kelley 83, 297 v. Kemp 43 v . Kenyon 133 v. Kloss 284 v. Knapp 86, 88, 324 v. Koerner 26 z/.Kraft 88 v. Laird 283 v. Lanagan 86 v . Lane 19, 75, 262, 293 v. Langtree 299 v. Larubia 26 v. Lawrence 341 v. Lee .' 200, 201 v. Lennox 76 v. Linzey 272 v. Lyon 301 v. Marshall 350 v. Martinez 84 v. Mather 319, 320, 335, 336 v. Matteson 272 v. Maxwell 251 v. Mayer 171 v. Mayhew 302 v. McCallan 79 v. McClure 43 v. McConnell 166 v. McCormick 322 v. McElvaine 148 v . McGowan 120 v. McKane 170, 175 v. McLaughlin 35, 53. 343 v. McLean 339 v. McQuade 15 v. McQuaid 205 v. McWhorter 243 v. Mead 35 v. Miller 281, 303 v. Mitchell 83 v. Mondon 83, 84 v. Monella 328 v. Montgomery 143 v. Morrigan 156 V. M idlings 280 z>. Murphy 13.35,49.292,324 lxxii TABLE OF CASES CITED. PAGE People v. Murray 128, 325 v. Nedrow 251 v . Newman 109 v. N. Y. Hospital 272 v. N. Y. Protectory 135 v. Niles 7 v. Nino 148, 247 v. Noelke 322, 325 v. Northey 285 v. Northrup 276 v. Ogle 23 v . Olmstead 337 v. O'Neil 273 v . O'Sullivan 24, 35 v. Overseers 256 v. Oyer & Term. Ct. 53,317,320,321 v. Pacific Mail Co 114 v. Palmer 344 v. Parish 320 v. Parker 14, 15, 154 v. Patterson 45 v. Paulsell 238, 303 v. Peckens 16 v. Petmecky 303 z/.Phillips 78,81 v. Plath 301 v. Powers 173 v. Quanstrom 277 v. Ramirez 85 v. Rathbun 23 v. Ratz 104 v. Ribolski 243 v. Rickert 122 v. Riley 263 v . Riordan 248 v. Robinson 85 v. Rolfe 142 v. Ross . . . .' 23 v. Ruloff 76 v. Ryan 76, 335 v. Ryland 263 v. Sanders 31 v. Sansome 276 v. Schenick 325 v. Schildwachter 340 v.Schuyler 292,331 v. Scott 20, 21 v. Seelye 136 v. Sessions 49 v. Severance 316 v. Sharp, 35. 159. 3U PAGE People v. Shattuck 286 v. Shaw 86 v . Sheriff 296 v . Shulman 44, 49 v. Simonsen 75 v. Simpson 12, 85, 87 v. Skutt 45 v. Slack 157 v. Sligh 109 v. Smith 35, 87, 202 v. Snyder 170, 209 v. Soto 77 v. Spiegel 294 v. Stephens 68 v. Stevens 76 v. Stewart 24 v . Stimer 284 v. Stone 305 v. Stout 169 v. Strait 142, 350 v. Strassman 241 v. Superior Court 4 v. Supervisors 240 v. Suppiger 170 v. Sweeney 158 v. Swetland 194 v. Terwilliger 25 v. Thayer 83 v. Theobald 148 v. Thompson 81 v. Thomson 20,322 v. Tice 298 v. Tuczkewitz 149 w.Tyler 335 v. Van Alstine 276,288 v. VanEwan 317 v. Velarde 101 v. Walker 192 v. Waller 170 V. Walsh 312 v. Ward 80, 248, 347 v . Warden 136 v. Ware 324 v. Webster 321, 323 v. Weldon 245, 327 v. Wells 305 v. Welsh 23 v. Wentz 78,84,85 V. West 293 v. Wheeler 116, 342 v. White 159 TABLE OF CASES CITED. lxxiii PAGE People v. VVhitson 28 v. Willett 26 v. Williams 321 v. Wolcott 79 v. Wolf 263 v. Wong Ah Leong 298, 317 v . Wong Ark 10 v. Wood 170, 245 v. Youngs 148 v. Zeyst 113 Peoples v. Evening News 239 People's Saw Bk. v. Wilcox 135, 136 Peoria, etc. R. Co. v. Rice 177 Percey v. Powers 273 Pergason v. Etcherson 313 Perkins v. Brazos . 120 ' v. Concord R. Co 74 v. Hayward 319 v. Stevens 273 v. Stickney 147 Perley v. Perley 250 Perrine v. Cooley's Excrs 224 Perry v. Bowman 229 v. Dickerson 133 v. Lo vejoy 47 v . Moore 318 v. Mulligan 315 v . Simpson, etc. Co 59 Perryman v. Lister 27 Petch v. Lyon 71 Peter v. Thickstun 116 Peters v. Canfield 238 v. Fogarty 285 Petersine v . Thomas 120 Petrie v. Nuttall 134 Peugh v. Davis 221 Pfeferle v. State 279 Pfeifer v. Nat. Ins. Co 231, 236 Phelps v. George's, etc. R. Co 176 v. Hunt 196 v. James 65 v. Nowlen 260 v. Prew 295 v. Winona, etc. R. Co 38 Phene's Trust, In re 258, 262 Phenix v. Castner 325 Phenix Ins. Co. v. Clark 58 v. Pickell 238, 242, 250 Phil. R. Co. v. Henrice 28 Phil. etc. R. Co. v. Hickman 152 v. Lehman 171 PAGE Philbrook v. Eaton 221 Philips v. Bury 119 Phillips v. Allen 255 v. Jamieson 131 v. McCombs 232 v. Thorn 336 v. Willow 38 Phillipps v. Middlesex 62 Philpot v. Gruninger 209 Phinney v. Holt 190 Phipps v. M ahon 243 Phoenix Ins. Co. v. Comm 114 v. Moog 15 v . Ryland 240 Pick v. Strong 133 Pickard v. Bailey 146 v. Sears 264, 379 Pickens v. Davis 99 Pickens' Estate 104, 107 Pickering v. Noy es 293 v. Reynolds 60 Pickert v. Hair 68 Picton's Case 145 Pier v. Duff 62, 69 Pierce v. Indseth 146, 169 v. U.S 78 Pierce's Admr. v. Pierce 26 Piercy v. Sabine 129 Piers v. Piers 155 Pierson v. People 21, 35, 293 Pigot's Case 215 Pigott v. O'Halloran 220 Pike v. Chicago 143 v. Fay 36 Pirn v. Currell 103 Pinkham v. Benton 343 v. Cockell 152 Pinney v. Andrus 342 v. Cahill 116 v. Jones 9 Piollet v. Simmers 38 Pipe v. Fulcher 103 Piper v. Chappell 166 Pironi v. Corrigan 254 Pitcher v. Clark 312 Pitner v. State 273 Pittman v. State 109, 347 Pitts v. Lewis 170 v. State 352 v. Wilder 61 Pittsburgh, etc. R. Co. v. McGrath. . m lxxiv TABLE OF CASES CITED. PAGE Pittsf ord v . Chittenden 255 Place v. Gould 24 v. Minster 16 Plainrield v. Watson 251 Plank v. Grimm 176 Plate v. N. Y. C. R. Co 129 Platner v. Platner 57, 3'5 Piatt v. .(Etna Ins. Co 222 v. Grover 261 Plaxton v. Dare 103 Playf ord v. Hutchinson 37 Pleasants v. Fant 66 Plumb v. Curtis 5 Plume v. Howard Saw Bk 119 Plumer v. Briscoe 184 Plummer v. State 247, 248 Plunkett v. Cobbett 283 Plyer v. German Amer. Ins. Co 328 Pocock v. Billing 64 Poertner v. Poertner 239 Poignand v. Smith 191 Pollard v. Vinton 269 Pollock v. Hoag 281 v. Pollock 329 Pomeroy v. Benton 263 Pontius v. People 19, 28 Poole v. Warren 184 Pope v. Ellis 58 Poppleton v. Nelson 240 Porter v. Bergen 254 v. Judson 91 v. Leache 129 v. Waring 163, 170 v. Wilson 182 Porter/field v. Comm 238, 245 Portland v. Richardson 132 Portland, etc. R. Co. v. Deering 143 Post v. State 292 v. Supervisors 206, 207 Post Pub'g Co. v. Hallam 45, 162 Postlethwaite, In re 288 Potter v. Adams 188, 214 v. Baldwin 49 v. Deyo 252 v. Nat. Bk 271 v. Waite 60 v. Ware 282 Powell, Ex parte 19, 166 Powell v. Pearlstine 345 v. State 116 Powers v. Chelsea Sav. Bk 122 PAGE Powers v. McKenzie 154 v. Savin 94 v. Silsby 101 Pratt v. Andrews 160 v. White.. 92, 93 Pray v. Hegeman 120 Prelford's Appeal 296 Prentis v. Bates 33, 141 , 246, 247 Pressley v. State 80 Preston v. Evans 200 Preston's Case 46 Prevot v. Lawrence 266 Prices. McGoldrick 54 v. Schaeffler 139 v. State 84 v. Torrington 92,93,364 Priest v. Groton 148 Primmer v. Primmer 16 Prince v. Skillin 165 v. State 248 Prindle v. Glover 29 Prine v. State 20 Pringle v. Leverich 67 v. Pringle 209, 316 v. Woodworth 140 Pritt v. Fairclough 94 Probate Court v. May 211 Proctor v. Old Colony R. Co 25, 73 Providence Tool Co.f. U.S. Mf'gCo. 176 Prudden z^Nestor 218 Prudential Assur. Co. v. Edmonds. . 258 Pugh v. McRae 72 Pulaski Iron Co. v. Palmer 240 Pullen v. Hutchinson 186 v. Pullen 324 Pulliam v. Pensoneau 281 v. State 21 Pulsifer v. Berry 150 Puryear v. Comm 87 Putnam v. Bond 231 v. Clark 123,216 v. Fisher 86 v. Sullivan 264 w.Tyler 264 v. U.S 330,344 Pylez>. Pyle 148 Pym v. Campbell 226 Pynchon v. Day 193, 294 Queen v. Halbert 272 Queen's Case 333, 355 TABLE OF CASES CITED. lxxv PAGE Queen Caroline's Case 387 Queen's Proctor v. Fry 113 Quertermous v. Taylor 305 Quick v. Glass 228 v. Quick 101 Quidort v. Pergeaux 119 Quigley v . De Haas 223 ^.Turner 273 Quin v. Lloyd 316 Quincey v. White . 28 Quincy Horse R. Co. v. Gnuse 332 Quinlanz 1 . Utica 38 Quinley v. Atkins 193 Quinnz>. Halbert no v. N. Y. etc. R. Co.. 145 v. Quinn 123 Quinsigamond Bk. v. Hobbs 335 Radcliff v. United Ins. Co 112 Radcliffe v. Fursman 291 Rae v. Beach 70 Rahm v. Deeg 242 Railing v. Comm 90 Railroad Co. v. Bank of Ashland 163 v. Cunnington 114 v. Nat. Bk 126, 132 Railroad Equipment Co. v. Blair 118 Railway Co. v. Cronin 194 v. Dobbins 177 v. Gardner 143 v. Manchester Mills 50 Rainwater v. Hummel 58 Ralphs v. Hensler 166 Rand v. Dodge 185 Randall v. Lynch 183 Randegger v. Ehrhardt 63 Randlett v. Rice 1 241 Randolph v. Bloomfield 34 Rangley v. Wadsworth 318 Rankin v. Blackwell 52 Ransom v. Wheeler 202 Raridan v. Cent. Iowa R. Co 58 Rawley v. Brown 262 v . Doe 184 Rawson v. Haigh 26 Rayburn v. Mason Lumber Co 183 Raynes v. Bennett 30 Razor v. Razor 58 Rea v. Harrington 175 v . Tucker 278 v. Wood 315 PAGE Read v . Bishop of Lincoln 114 Readman v, Conway 58 Reagan v. U. S 276 Real v. People 323 Rearden v. M inter 184 Rector v. Comm 80 Redd v. State 341 Reddington v. Gilman 191 Redlich v. Bauerlee 93 Reed v. Haskins 24 v. Ins. Co 229 v. Spaulding 338 v. Wilson 163 Reedy v. Nullizen 258 Reese v. Hershey 50 v. Reese 152 Reeve v. Wood 277 Reffell v. Reffell 220 Reformed Dutch Church v. Brown. . 125 Regan v. Dickinson 46 Reich v. Cochran 121 Reichenbach v. Ruddach 33 Reinhart v. Lugo 174 Reiss v . Hanchett 264 Reitz v. State 32 Remington Co. v. O'Dougherty 209 Remsen v. People 7, 158 Rendall v. School Dist 126 Renihan v. Dennin 293 Reno v. Kingsbury 279 Rensens v. Lawson 211 v. Staples 211 Ressequie v. Byers 125 Revoir v. State 247 R.f. 354 v. Adamson 236 v . All Saints, Worcester 298 v. Baker 364 v. Baldry 77. 363 v. Barnard 29 v. Bathwick 298 v. Baylis 274 v. Bedingfield 12 v. Bembridge xxii v. Blake 16 v. Bliss 103 v . Boswell 81 v . Boyes 297 v. Brittleton 401 v. Brown 336 v. Butler 245 l.xxvi TABLE OF CASES CITED. I'AGE R. v . Canning 53 v. Carter 43 v. Castleton 191 V. Cheadle 236, 378 v. Chidley & Cummins 83 v. Clapham 94 v. Clarke 338 v. Clewes 21, 82 v. Cliviger 298 v. Cockcroft 339 v. Cole 35 v. Cooper 44 v. Cox & Railton 288,382 v. Cresswell 261 v. Davis 43 v. Donellan 29 v. Doolin 316 v. Dove 149 v. Drage 43 v. Drummond 340 v. Dunn 43 v. Edmunds 25 v. Eriswell 108 v. Exeter 95, 99 v. Fennell 78 v. Flannagan 52 v. Forster 43 v. Foster 13 v. Fowkes 11,12 v. Francis 44 v. Francklin 112 V. Garbett 83,298 v. Garner 52 v . Gazard 281 v . Geering 52 v. Gibson 350 v. Gilham 81 v. Gordon 217 v. Gould 82 v. Gray 51, 358 v. Griffin 384 v. Halliday 298 v. Harborne 257 v. Hardy 16, 283 v. Harringworth 183, 371 v. Hartington Middle Quarter. 123 v. Haworth 187, 188 v. Hey ford 98, 99 v. Hill 275 v. Hind 90 v. Hogg 108 PAGE R. v. Holmes 338, 339 v. Holt 44 v. Home Tooke 153 v. Hull 227 v. Hunt 190 v. Hutchins 123 v . Hutchinson 90 v. Jarvis 77, 252 v. Jenkins 89 v. Lillyman 24,25, 27 v. Llanfaethly 193 v. Lloyd 82 v. Lord George Gordon 29 v. Lord Thanet 381 v. Luffe 256 v. Lumley 257 v. Mainwaring 155 v. Mallory 73 v. Mansfield 257 v. Martin 339 v. Mead 90 v. Moore 82 v. Mosley 89 v. Neill (or Cream) 52 v. Oddy. . 43 v. Orton 115, 322 v. Owen 83, 404 v. Palmer 22, 47, 148, 151 V. Parbhudas 353 v. Patch 22 v. Paul 83, 404, 405, 406 v. Payne 275 v. Pike 340 v. Reeve 77 v. Richardson 52, 283 v. Riley 339 v. Robinson 83 v. Rowton 159, 369 v. Scaife 108,346 v. Scott 83, 299 v. Shurmer 347 v. Sparkes 383 v. Stanley 51 v. Stephenson 346 v. Stone 252 v. Sutton 112 z'.Tait 347 v. Thompson 77, 275 v. Thornhill 174 v. Turberfield 159 v. Turner 134 TABLE OF CASES CITED. lxxvii PAGE R. v . Twyning 241 v. Walker 27, 356 v. Warwickshall 82 v. Watson 179, 187 v. Wealand 405, 406 v. Webb 271 v. Weeks 43 v. Whitehead 316 v. Widdop 83 v. Willshire 249 v. Woodcock 90 Reynolds, Ex parte 297 Reynolds v. Fleming 138 v. Hussey 44 v. Manning 74, 91 v. Robinson 143, 222, 232 v. Schaffer 279 v. State 240 v. Sumner 91 v. U. S 109 Rhine v. Robinson no Rhoades, Lessee of, v. Selin 296 Rice v. Comm 301, 314 v. Howard 330 v. Rankans 147 v. Rice 177. 327. 328 v. State 339 Rich v. Flanders 66 Richard's Appeal 187, 196 Richards v. State. 75, 285, 314, 317, 329, 341 Richardson v. Eveland 232 v. Kelly , 327 v. See vers 136 Richie v. State 339 Richmond's Appeal 116, 247 Richmond, etc. R. Co. v. Jones 183 Rickerson v. Hartford Ins. Co 176 Ridden v. Thrall 49 Rief. Rie 301 Rigbyz>. Logan 91 Rigdon v. Conley 317 Riggs v. Powell 152 v . Pursell 122 v. Tayloe 191 Riley v. Boehm 93 v. Morton 239 v. Suydam 70 Rindge v. Walker 113 Rindskopf v. Kuder 330 Ringer v. Holtzclaw 222 Ripley v. Burgess.! 167 PAGE Ripon v. Bittel 116 Risley v. Phenix Bk 127, 226 Ritchie v. McMullen 140 v. Widdemer 225 Rizzolo v. Comm 80 Roach v. Caldbeck 28 Roath v. Driscoll 260 Robb v. Hackley 338 Robb's Appeal 278 Robb's Estate 104 Robbins v. Chicago 132 v. Robbins 252, 301 v. Spencer 62, 324, 335, 336 v. State 87 Robergef. Burnham 239 Robert v. Good 184 Roberts v. Bonaparte 227 v. Buckley 263 v. Chittenden 242 v. Doxen 189 v. Farmers', etc. Bk 171 v. Johnson 147 v. Medbery 62 v. N. Y. El. R. Co 143,144 v. Noyes 268 v. Spencer 192 v. State 20 Roberts' Will 26, 145 Robertson v. Bullions 233 v. Hay 218 v. People 165 v . Pickrell 266 Robins v. Warden 66 Robinson v. Adams 246 v. Brown 166 v. Dewhurst 101 v. Exempt Fire Co 142 v. F. &W. R. Co 51 v. Gilman 169 v. Mulder 342 v. Myers 215 v. Phila. R. Co 294 v. Phoenix Ins. Co 218 v. Robinson 251 v. Shanks 282 v. State 27, 78, 263 v. U. S 19, 224, 305 v. Yarrow 267 Robison v. State 3°2 Robnett v. People 32 Roby v, Colehour 254 ] xxviii TABLE OF CASES CITE IX PAGE Roche v. Brooklyn, etc. R.Co 48 Rockey's Estate 154 Rockford Gas Light Co. v. Ernst 34 Rockland v. Farnsworth 58 Rockwell v. Taylor 10, 68 Rode v. Phelps 165 Roderigasz\ East River Sav.Bk. 119,135 Rodgers v. Crook 190 v. State 166 v. Stophel 5 Rodman v. Mich. Cent. R. Co 122 Rodriguez v. Haynes 213 Roe v. Strong 114, 259 Roe d. West v. Davis 179 Roebke v. Andrews 61 Rogero v. Zippel 205 Rogers v. Allen 17 v. Anderson 67, 97 v. Cady 170 v. Greenwood 68 v. Gwinn 139 v. Ritter 153 v. Rogers 270 v. State 281 v. Wallace 238 Roland v. Pinckney 179 Romertze v. East River Bk 333 Ronan v. Dugan 340 Roodhouse v. Christian 131 Rooks v. State 313 Roosa v. Boston Loan Co 48 Roosevelt v. Eckard 190 Root v. King 112, 162, 206 v. Wright 287, 289 Roper v. State 289 Ropes v. Kemps 198 Roraback v. Pennsylvania Co 56 Rose v. Chapman 65 v. First Nat.Bk 155 v. Hawley 122 v. Himely 118 Rosenbury v. Angell 73 Rosenkrans v. Barker 161 Rosenstein v. Fox 240, 250 Rosenthal v. Walker 54 Ross v. Ackerman 51 v. Boswell 171 v. Doland 264 v. Loomis 105 v. State 78, 176 Rosseau v . Bleau 289 PAGE Roth v Roth... 140 Rothrock v. Gallaher 329 Rothschild v. Amer. Ins. Co 239 Rounsavell v. Pease 327 Rouse v. Whited 64 Rousillon v. Rousillon 139 Ro we v. Canney 284 Rowell v. Fuller 154 Rowland v. McCowu 115 v. Phila. etc. R. Co 271 Rowland's v. Elgin 38 Rowley v. L. & N. W. Railway 147 Royal v. Chandler 57, 101 Royal Arcanum v. Carley 139 Royal Ins. Co. v. Noble 299 Ruch v. Rock Island 109 Rucker v. Reid 313 v. State 328 Ruckman v. Cory 62 v. Decker 66 Rudd t>. Robinson 114 v. Rounds 27 Ruddell v. Fhalor 264 Rudolph v. Landwerlen 131 Rudy v . Comm 248 Rufer v. State 77 Ruloff's Case 23 Rumsey v. Lovell 344 v. N. Y. etc. R. Co 165 v. N. Y. etc. Telephone Co 93 Runner's Appeal 97 Runyan v. Price 327 Russell v. Cedar Ins. Co 150 v. Hallett 258 v. Hudson River R. Co 56, 341 v. McCall 131 v. Place 130 v. Reed 214 v. Walker 183 Ryall v . Hannam 234 Ryan v. Bristol 142, 252 v. First Nat.Bk 218 v. Merriam 60 v. People 7, 22 v. State 75, 350 v. Ward 222 Ryerss v. Wheeler 229, 232 Sabre v. Smith 54 Sage v. State no Sailor v. Hertzogg 17 TABLE OF CASES CITED. PAGE St. Clair v. Cox 140 v. U. S 319 St. John v. Amer. Ins. Co 186 St. Joseph v. Union R. Co 132 St. Louis v. Roche 163 v. Weitzel . ." 251 St. Louis Ins. Co. v. Cravens 131 St. Louis, etc. R. Co. v. Clark 37 v. Weaver 251 St. Luke's Home v. Ass'n for Fe- males 230, 231 Salas v. State 85 Sammis v. Wightman 164 Samples v. State 15 Samson v. Freedman 58 Samuel v. Borrowscale 198 v. People 297, 298 Sanborn v. Neilson 161 Sanderson v. Coleman 267 v. Nashua 328 v. Peabody 120 Sandilands, Re 211 Sands v. Hammell 91 Sandwich Co. v. Earl 136 Sandy White v. U. S 113 Sanitary District v. Cullerton 284 Sankey v. Cook 154 Sappenfield v. Main St. R. Co 31 Sargeant v. Sargeant 59 Sargent v. Adams 231 v. Hampden 287 v. Wilson 335 Saunders v. McCarthy 71 Sauterz'. N. Y. C. R. Co 117 Savage v. O'Neil 147 v . Stevens 131 Saveland v. Green 180 Sav. Bk. v. Atchison, etc. R. Co 269 Sawyer v. Child 237 v. Hannibal 286 v. White 131 Sayles v. Briggs* 118 Saylor v. Coram 89 Sayres v. Coram 21 Scanlon v. Walshe 255, 256 Schafer v. Schafer 281 Schallz>. Miller 281 Scharff v. Keener 107, 213 Schaser v. State 318 Schaub v. Griffin 258 SchelPs Excrs. v. Fauche 261 PAGE Schenck v. Mercer Co. Ins. Co 150 v. Spring Lake Co 221 Schettler v. Jones 93 Schindel v. Gates. .• 67 Schisby v. Westenholz 139 Schlemmer v. State 29 Schlicht v. State 172 Schlitz Brewing Co. v. Compton 123 Schmidt v. Durnam 330 v. Glade 281 v. Milwaukee R. Co 303 v. N. Y. etc. Ins. Co 239 v. N. Y. etc. R. Co 285 v. Packard 6 Schmied v. Frank 280 Schmisseur v. Beatrie 241, 252 Schmittler v. Simon 226 Schneider v. Haas 314 Z'. Hill 37 Scholfield, Ex parte 299 Scholfield v. Earl of Londesborough . 266 School Dist. v. Williams 102 Schopen v. Baldwin 125 Schrauth v. Dry Dock Bk 130 Schroeder v. Railroad Co 177 Schubkagel v. Dierstein 290 Schuler v. Isreal 166 Schultz v. Astley . 268 v. Chicago, etc. R. Co 317 v. Pacific Ins. Co 239 v. Third Ave. R. Co 323, 325 Schuster v. State 325 Schutz v. Jordan 54, 242 Schuyler Nat. Bk. v. Bullong 344 Schuylkill Co. v. Copley 273 Schwan v. Kelly 130 Schwass v. Hershey 240 Schwerdtle v. Placer Co 164 Scobey v. Walker 209 Scotia, The 168 Scott v. Donovan 32 v. Harris 289 v. Hillenberg 255 v. Indianapolis Wagon Works. 313 v. London, etc. Docks Co 250 v. McCann 316 v. McNeal 119, 135 v . Pentz 194 v. People 19, 35, 87, 318 v. Sampson 160 v. Waithman 184 TABLE OF CASES CITED. PAGE Scott v. Williams 311 v. Wood 243 Scott Co. v. Fluke 95 Scovill v. Baldwin 314 Scoville v. Hannibal, etc. R. Co 108 Seabury, In re 106 Seal, In re 230 Searcy v. Miller 273 Sears v. Terry 136 v. Wingate 269 Sebree v . Smith 282 Seckinger v. M fg. Co 147 Secor v. Sturgis 121, 124 Seeley v. Engell 316 Seibold v. Rogers 186 Seither v. Phila. Traction Co 131 Seitz v. Brewers' Co 220, 222 v. Seitz 280 Selden v. Canal Co 201 v. State 280 Seliger v. Bastian 148 Seligman v. Real Est. Trust Co 294 v. Rogers 116 Selkirk v. Cobb 317 Selma, etc. R. Co. v. U. S 251 Selover v. Bryant 330 Selz v. Presburger 122 Semon v. People 240 Senger v. Senger 229 Servis v. Nelson 181 Sessions v. Trevitt 280 Seurer v. Horst 37 Sewall v. Robbins 56 v. Slingluff 223 Sewell v. Gardner 329 Sewing Machine Co. v. Dakin 215 Sexton v. Carley 266 v. N. Bridgewater 144 v. State 321 Seybolt v. N. Y. etc. R. Co 238 Seymour v. Cowing 226 v. Fellows 145, 148 Shaber^. St. Paul, etc. R. Co 51 Shackelford v. Brown 305 Shaeffer v. State 33 Shafer v. Lacock 243 v. Senseman 227 Shaffnerz>. Comm 3; Shailer v. Bumstead 49,61,69 Sharp v. Blankenship 61 Shartzer v. State 339 PAGE Shattuck v. Stoneham R. Co 143 Shaw v. Broadbent 120 V. Emery 335 v. Mason 189 v. Sun Prairie . .'. 40 v. Tobias 163 Shawneetown v. Mason 142 Shea v. Glendale Co 41 v. Hudson 143 Sheaffer v. Eakman 61 Sheen v. Bumpstead 46 Shelburne Falls Bk. v. Tovvnsley 54 Shelby v. Clagett 142, 321 Shelbyville v. Brant 40 Sheldon v. Benham 91 v. Patterson 129 Shell v. State 341 Shelp v. Morrison 193, 194 Shelton v. Tiffin 139 Shepard v. Giddiugs 192 z/. Hill 34 v. Potter 315 v. Wright 140 Shephard, In re 193 Shepherd v. Camden 284 v. Moodhe 122 Shepley v. Waterhouse 67 Sheppard v. Yocum 337 Sheridan v. Foley 250 v. New Quay 268 Sherman v. Dilley 137 v. People 178 v. Sherman 49 v. Wilder 49, 221 Sherwood v. Pratt 180 v. Sherwood 225 Shields v. Boucher 367 v. State 6 Shifflet v. Comm 79 Shinkle v. Crock 152 Shinners v. Proprietors 31 Shirts v. Overjohn 264 Shirwin v. People 339 Shoe & Leather Ass'n v. Bailey 294 Shoemaker v. Benedict 67 Shoenberger v. Hickman 224 Shore v. Wilson 233 Shores v. Hooper 127 Shorey v. Hussey 330 Short v. Lee 365 v. Symmes 225 TABLE OF CASES CITED. lxxxi PAGE Shorten v. Judd 32, 104 Showalter v. State 276 Shown v. McMackin 258 Shrewsbury Peerage Case 105 Shriedley v. State 43 Shriver v. State 258, 262 Shroyer v. Miller 161 Shufflin v. People 7 Shuman v. Hurd 257 v. Shuman 256, 257 Shurtleff v. Willard 316 Shuttle v. Thompson 101 Siberry v. State 28, 238 Sibley v. Waffle 290 Sickraz'. Small 161,162 Sidekum v. Washburn, etc. R. Co... 39 Siebert v. People 303 Silvers v. Potter 221 Simanovich v. Wood 221 Simes v. Rockwell 263 Simmons v. Atkinson 218, 266 v. Haas 57 v. Haven 182 v. Holster 179 v. Rudall 217 v. Saul 140 Simmons Creek Coal Co. v. Doran. . 240 Simon Gregory Co. v. McMahon 314 Simons v. People 87, 325 Simpson v. Dall 188 v. Dix 60, 64 v. Smith 175 v. Westenberger 160 Simrell's Estate 217 Sims v. Sims 273 Sinclair v. Baggallay 210 v. Learned 261 v. Murphy 268 Singer Mfg. Co. v. King 268 Sioux City, etc. R. Co. v. First Nat. Bk 269 Sisson v. Pearson 216 Sitler v. Gehr 94, 105, 107 Sivers v. Sivers 222 Skaggs v. State 272 Skilbeck v. Garbett 54 Skinner v. Harrison T'p 231 Skipworth v. Deyell 90, 93 Slade v. Tucker 290 Slane Peerage Case 197 Slatterie v. Pooley 178 PAGE Slaughter v. Bernards 146 Sleeper v. Abbott 287 v . Van Middlesworth 336 Slingerland v. Bennett 46 v. Norton : 74 v . Slingerland no Slingsby v. Grainger 234 Slipp v Hartley 66 Sloan v. Edwards 324, 328, 335, 337 v. N. Y. C. R. Co 328 Slocovich v. Orient Ins. Co 147, 240 Slocumb v. Railroad Co 264 Small v. Coram » 87 v. Mitchell 122 Smalley v. Appleton 142 Smith, In re 312 Smith v. Aldrich 71 v. Blakey . . 94, 95 v. Boyer 63 v. Briscoe 330 v. Burrus 239 v. Carolin 183 v. Chapin 118 v. Clausmeier 136 v. Collins 66 v. Coram 79, 80, 276 v. Easton 180 v. Ehanert 329 v. Ewing 305 v. Floyd 19 v. Forrest 101,103 v. Frankfield 137 v. Grady 140 v. Law 92, 94 v. Livingston 244 v. Long 290 v. Mason 147 v. Mayfield 222 v. McCool 122 v. McGlinchy 271 v. McGowan 215 v. McNeal 121 v . Morgan 64 v. Mussetter 222 v. Nat. Benefit Society 47 v. N. Y. C.R. Co 185 v. Porter 209 v. Profitt 317 v . Putnam 61 v. Rentz 92. 344 v. Sac Co 244 1 x x x i i TABLE OF CASES CITED. PAGE Smith v. Satterlec 74 t. Schreiner 137 v. Smith 92, 234 v. State 321 v. U. S 20, 215 V. Utesch 329 v . Whippingham 71 v. Wildman 136 v. Wilson 232 v. Yaryan 340 Smith, Will of 247 Smyth v. Bangor 66 v. Caswell 154 Snell, In re 123 Snell v. Bray 22 Snelling, Will of 270, 323 Snider v. Burks 154, 181 Snow v. Alley 221 v. B.&M.R.Co 144 v. Gould 289 Snowden v. U. S 25 Snyder v. Coram 159 v. McKeever 152 v. Wise 202, 203 Solomon v. Kirkwood 15 Solomon R. Co. v. Jones no Somerset Co. Ins. Co. v. Usaw 239 Somerville, etc. R. Co. v. Doughty.. 318 Soper v. Buffalo, etc. R. Co 65 Sopherstein v. Bertels 251 Souder v. Schechterly 63 South Bend v. Hardy 321 South Mo. Co. v. Jeffries 171 Southard v. Curley 240 Southern Development Co. v. Silva. 305 Southern Kansas R. Co. v. Painter.. 333 V. Robbins 50 Southern Pac. R. Co. v. Painter 164 v. U. S 129 Southern Ry. News Co. v. Russell... 297 South waik Bk. v. Coram 207 South worth v. Adams 99 Soutier v. Kellerman 232 Spalding v. Hedges 114,117 v. Lowe 281 Spangler v. Jacoby 112 Sparf v. U.S 15, 75, 76, 78 Spargo v. Brown 362 Sparks v. Sparks 289 Spatz v. Lyons 56 Spaulding v. Hallenbeck 60 PAGE Spaulding v. Vincent 146, 198 Spears v. State 79 Specht v. Howard 317 Spencer v. Citizens' Ins. Co 250 v. Dearth 11S v. Metropolitan R. Co 143 Sperry v. Moore's Estate 316 Spiegel v. Hays 325 Spies v. Illinois 298 v. People ' 22, 325 Spitley v. Frost 122 Spitz's Appeal 279 Spohn v. Mo. Pac. R. Co 327 Spratt v. Spratt 30 Spring Co. v. Edgar 144 Spring Garden Ins. Co. v. Evans 344 Spring Run Co. v. Tosier 122 Springer v. Bien 122 v. Shavender 119 Springfield v. Dalby 318 Springfield, etc. R. Co. v. Welsch. . . 8 Squire v . State 241 Stacy v. Graham 332 Stafford v. Morning Journal Ass'n.. . 161 Stahelin v. Lowle 222 Stalker v. State 43 Stallings v. Gottschalk 93 v. Hullum 290 v. State 46 Stamp v. Franklin 131 Stanbro v. Hopkins 273 Stanley v. Montgomery 280 Stanton v. Crosby 139 Stanwood v. McLellau 343 Stape v. People 336, 337 Stapleton v. King 284 Staring v. Bowen 213 Starkey v. People 89 Starks v. People 336,338 Starkweather v. Martin 211 Staser v. Hogan 325 State v. Able 109 v. Adams 328 v. Adamson 28 v. Ahern 2^1 ^. Albert 76 v. Alexander 248 v. Alexis 323 v. Anderson 78 v. Archer 337 v. Arnold 15, 165 TABLE OF CASES CITED. lxxxiii PAGE State v . Avery 317 v. Bacon 321,325 v. Baldwin 86, 87, 342 v. Bait. & P. R. Co 251 v. Barber 302 v. Barrett 167 v. Barrows 288 v. Bartlett 247 v. Bartley 327 v. Bayne 44 v. Beasley 248 v. Beaudet 20, 56 v. Bechdel 123 v. Belton 274 v . Benner 285, 319, 324 v. Biggerstaff 12 v. Bogue 276 v. Bohan 364 z>.B.&M.R.Co 51 v. Boyle 26 v. Bradnack 133 v. Branch 130 v. Brent 325 v. Bridgman 298 v. Briggs 45, 298 v. Brock man 80 v. Brooks 85, 174 v. Brown 12, 80, 286, 339 v. Buffington . , 280 v. Burks 329 v. Burroughs 6 v. Byrne 25 z>.Cady 338 v. Callegari 333 v. Campbell .■ 339 v. Carroll 24, 286 v. Chambers 86, 277 v. Cherry 337 v. Chiagk 276, 307 v. Christian 335 v. Clare 174 v. Cleary 327 v . Clements 248 v. Clifford 68,84 v. Clothier 197 v. Coffee 84,286 v. Cole 20 v . Comeau 1 285 v. Connelly 3 01 v. Conway 248 v. Coek 24 PAGE State v. Cooper 156, 284 v. Costello 272 v. Crab 15 v. Craine 88 v. Credle 190 v. Cunningham 170 v. Damery 316 v. Dana 302 v. Danforth 32 v. Davis 77, 193, 285, 294 v. Day 20, 336 v . Dayton 308 v. Denny 165 v. Desforges 338 v. Desroches 12 v. Deuble 12 v. Dickerson 326 v. Dickinson 87, 90 v. Dickson 21, 142 v. Donahoe 248 v. Donelly 274,302 v. Douglas 272 v. Downs 20 v. Doyle 272 v. Driscoll 10 v. Duffy 281,320,339 v. Duncan 12 v. Dunwell 169 v. Dusenberry 301 v. Earnest 263 v. Eddings 84 v. Elliott 20, 88, 109, 341, 347 v. Elwood 325 v. Emery 251 v. Evans 20, 87 v. Falk 313 v. Farlee 174 v. Farrington 152 v. Fay 297 v. Feltes 85 v. Findley .. 189 v. Fitzgerald. 47, 109, 116,288,314,347 v. Fitzsimon 339 v. Flanders 16 v. Fletcher 157 v. Flint 34, 46.338 v. Fontenot 338 v. Foot You 86 v. Forshner 339 v . Fortner 78 V. Foster 252 Ixxxiv TABLE OF CASES CITED. PAGE State v . Fournier 47, 335 V. Fraunburg 88 v. Freeman 248 v. Fry 20 v. Fuller 263 v. Furney 87 v. Gedicke 48 v. Gee 56 v, George 109, 1 10, 347 f.Gesell 313.335 v. Gilman 84,85 v. Glahn 21, 83 v. Glass 83 v. Gleim 134, 321 v. Glynn 329 v. Goodbier 327, 328 v. Good win 327 v. Gorham 78 v. Grady 285,286 v. Graham 20 v. Grant 16, 190, 224 v. Graves 298 v. Gray 280 v. Grear 85, 247 v . Griffin 78 v. Griswold 6, 154, 294, 298 v. Grossheim 301 v. Guest 276 v. Gurnee 187 v. Hack 321 v. Halstead 180 v. Hamlin 285 v. Hansen 248 v. Harper.. 90 v. Harris 10, 171 v. Harrison 84, 284 v. Harrod 20 v. Harvey 152, 248 v. Hastings 154 v. Hatcher 85 v. Hathaway 251 v. Hawkins 305 v. Hayden 148, 149 v. Hays 172 v. Hayward 262 v. Hedgepeth 289 v. Heed 305 v. Heidenreich 75 v. Hendricks 338 v. Henke 258 v. Higgins 166, 251 State v. Hobbs 84 v. Hocker 165 v. Hockett 263 v. Hodge 245 v. Hodgskins 156 v. Hoffman 245 v . Hogan 314 v. Holden 77, 79 v, Hollenbeck 339 v. Hopkirk 79 v. Horan 10 v. Houser 109 v. Howard 75, 272 v. Howell 158 v. Hoxsie 302 v. Hoyt 7. 20, 33, 280 v. Hughes 156 v. Hull 159 v. Humbird 211 v. Hunsaker 327 v. Hutchinson 76 v. Intoxicating Liquors 171 v. Ivins 24 v. Jackson 23, 248 v. Jamison 22, 42 v. Jarvis 302 v. Jean 305 v. Jennings 245 v. Johnson. . 15, 87, 172, 285, 315, 335 v. Jones 25, 78, 248, 276, 327 z'. Juneau 272, 301 v. Kaiser 9 v . Keefe 158, 329 v. Keith 301 v. Kelley 42, 49 v. Kennade 9 v. Kibling 302 v. Kidd 288 v. Kilgore 88 v. Kinder 77 z;. Kindle 88 v. King 109, 158 v. Kinney 24, 167 v. Kirkpatrick 336 v. Kline 35 v. Klinger 148 v. Knapp 339 v. Knight 331 v. Knowles 75 v. Koontz 154 v. Kuhuke 251 TABLE OF CASES CITED. lxxxv PAGE State v. Lamb 76 v. Langf ord 25 v. Lapage 49. 159 v. Larkin 15 v. Larson 335 v. Lavin 255,340 v. Lawlor 336 v. Lawrence 247 v. Lee 35, i59 v. Leeper 90 v. Lemon 70 v. Lentz 19,352 v. Levy . 272 v. Lewis 248 v. Litchfield 297 v. Lockerby 301 v. Lodge 341 v. Loehr 273 v. Loughlin 197 v. Lynde 197 v. Mace 86 v. Ma Foo 263 v. Magoon 238 v. Main 173 v. Me. Cent. R. Co 172 v. Maney , 302 v. Markins 45 v. Marshall 104 v. Martin 12, 303, 323 v. Mathers 6 v. Mathews 218, 334 v. Matthews 83 v. M ay berry 194 v. Mazon 308 v. McAllister 163 v. McCaffrey 350 v. McCaskey 301 v. McClain 104 v. McCord 277 v. McDonald 52, 120 v. McDonnell 75 v. McDowell 256 v. McGee 15 v. McGlothlen 301 v. McGonigle 215 v. McGuire 325 v. McKean 302 v. McLaughlin 327 v. Mewherter 288 v. Meyers 25, 77 v. Michael 274 PAGE State v. Miller 83, 276, 342 v. Minnick 169 v. Minor 276, 325 v. Minton 15 v. Mitchell 25 v. Mobile, etc. R. Co 136, 137 v. M oran 79, 286 v. Morgan 79. 85,313 v. Morris 117, 171, 174 v. Mortimer 80 v. Mosley 134 v. Mullen 273 v. Mullins 26 v. Murphy 12,49,315,321 v. Musick 238, 263 v. Myers 77, 167, 168 v. Nelson 87, 159, 337 v. Nichols 298, 301 v, Nixon 247 v. Nocton 22, 87 v. Nowell 297 v. Nugent 35 v . Nulty 251 v. Ober 298 v. O'Brien 109, 325 v. Pain 275 v. Palmer 19, 22 v. Parker 336 v. Patterson 79, 88, 89, 263, 302 v. Peck 212 v. Pennington 170, 276 v. Pfeff erle 321 , 325 v. Phair 91 v. Phelps 84 v. Pike . . 284 v. Plym 249, 262 v. Pomeroy 6, 12, 294 v. Porter 261, 338 v . Potter 45, 79, 261 v. Potts 335.336 v. Powers 170 v. Pratt 276,323 v . Probasco 325 v. Railroad Co 37 v. Rainsbarger 142 v. Randolph 273, 335 v. Raymond 51 v. Reader 170 v. Reed 21,25, 88, 329 v. Reid 25 v , Resells 80 lxxxvi TABLE OF CASES CITED. PAGE State v. Richart 245 v. Robinson 149 v. Rodman 158, 314 v. Rogers 26,85,335 v. Rome 4 v. Roswell 156 V. Rounds 238 v. Row 225, 321 z>.-Rush 284, 335 v. Sauer 274,325 v. Saunders 317 v. Schmitt 12 v. Schweitzer 247, 248 v. Scott 20 v. Seibert 168 v. Senn 84 v. Severson 240 v . Shaffer 341 v. Shee 263 v. Sherwood 156 v. Simmons Co 297 v. Slack 330 v. Smith 32, 238, 276, 301, 317 v. Soper 283 v. Sorter 330 v. Spaulding 197 v. Spurling 335 v. Squires 84 v. Stackhouse 144 v. Stair 152 v. Staley 80, 84 v. Staples 109 v. Steeves 331 v. Stein 333 v. Stephens 76 v. Sterrett 151 v. Stevens 23, 166 v. Stewart 68 v. Stice 49 v. Stone 248 v. Sullivan 88 v. Swift 87 v. Tall 291 - v. Tally 287 v. Tatro 79 v. Taylor 53, 84,321 v. Thaden 300 v. Thomas 286, 298, 313 v. Thompson 41,154,170,211 v. Tipton 301 v. Trout 247 PAGE State v. Turner 339 v. Ulrich 166 v. Vale Mills 103 v. Van Winkle 281, 297, 302 v. Vari 285 v. Vaughan 302 v . Vickers 330 v. Vollander 299 v. Wagner 114,169,174 v. Walker 75, 81, 276 v. Wallis 222 v. Ward 31, 43, 142, 176, 177, 248, 322, 338 v . Warford 245 v. Waterman 120,281 v. Watson 148, 274 v. Welch 50, 149, 299 v. Weldon 272 v. Wells 298, 322 v. Wentworth 42, 79, 297 v. West 334 :•. Westfall 364 v. Whelehon 281, 338 v. White 291, 339 v. Whitfield 338 v. VVhitmore 116 v. Whitson 89 v. Wilkins 25 v . Williams 45, 167, 261 v. Williamson 142 v. Willis 277 v. Wilson 166, 299 v. Wingo 243, 248 v. Winston 80 v. Wisdom 84 v. Witham 28, 83, 298, 318 v. Wofford 170 v. Wood 86, 284, 285 v. Woodson 20 v. Woolard 302 v. Worthingham 156 v. Wright 166, 248, 317 v. Wylde 156 v. York 81 v. Young 45, 84 v. Zimmerman 154 State's Att'y v. Branford..., 174 Stauffer v. Ins. Ass'n 271 Staup v. Comm . . 276 Stnyner v. Joyce 216, 328 Stead v. Heaton 98 TABLE OF CASES CITED. Ixxxvii PAGE Steam Mill Co. v. Water Power Co.. 156 Steamboat Co. v. Brockett 8, 70 Stearns v. Doe 188 v. Field 147 v. Merchants' Bk 329, 330 Stebbins v. Duncan 181, 188 Steed v. Cruise 296 Steele v. Lord 188 v. Pacific, etc. R. Co 40 v . Souder 67 Steen v. Bennett 119 Steffenson v. Chicago, etc. R. Co 116 Stein v. Bowman 106, 309 v . Swensen 108 Steinbach v. Relief Ins. Co 122 Steinbrunnerf. Pittsb'h, etc. R. Co.. 117 Steiner Bros. v. Tranum 185 Stephens v. People 148 v. Shafer 132 v. Vroman 55 Stepp v. Frampton 254 Stern v. People no Sternes, Ex parte 135 Stetson v. Wolcott 93 Stevens v. Castel 212 v. Hughes 122 v. Lockwood 124 v. Ludlum 264 v. McNamara 262 v. Miles 188 v. Minneapolis 147 v. People 24 v. State 297 v. Taylor 223 Stevenson v. Gunning 337.338 v. Hoy 191 v. Kaiser 104 v. Superior Ct 119 Stewart v. Everts 40 v. First Nat. Bk no v. Keteltas 223 v. Nashville 252 v. Smith 340 v. Stone 245 v. Wells 60 Stewart, Matter of 258 Stichter v. Tillinghast 294 Stier v. Oskaloosa 163 Stiles v. Allen 315 Stillwell V. Patton 216 Stillwell, etc. Co. v. Phelps 147 PAGE Stilwell v . Carpenter 305 Stimpsonz'. Brooks 312 Stirling v. Buckingham 195 Stitt v. Huidekopers 344 Stoate v. Stoate 124 Stobart v. Dryden 55 Stockbridge's Case 258 Stockbridge Iron Co. v. Hudson Co. 240 Stockfleth v. De Tastet 74 Stoddard v. Winchester 148 Stoher v. Mo. Pac. R. Co 40 v . St. Louis, etc. R. Co 8 Stokes v. Johnson 317 v. Macken 163 v. People 20, 326 f.U.S 154 Stokoe v. St. Paul, etc. R. Co. 187, 289, 296 Stolpw. Blair 338 Stone v. Hawkeye Ins. Co 160 v. Ins. Co 36 v. Montgomery 282 v. Northwestern Sleigh Co 327 v. St. Louis Stamping Co 120 v. Segur 29 v. State 79, 84 Stoner v. Devilbiss . 318 Stoops v. Smith 229 Storm v. U. S 321 Storror, In re 297 Stott v. Rutherford 266 Stout v. Cook 108 v. State 116 Stovall v. Banks 132 Stover v. People 7, 23, 245 Stowe v. Bishop 59 Stowell v. Chamberlain 122 v. Eldred 137 v. Moore 312 Strand v. Chicago, etc. R. Co 238 Strauch v. Hathaway 240 Strauss v. Meertief 126 Streeter v. Ilsley 266 Stringer v. Gardiner 235,377 Stringham v. St. Nicholas Ins. Co.. . 65 Strohmw. N. Y. etc. R. Co 145 Strong v. State 44 Strong's Excrs. v. Brewer 152 Stroud v. Tilton 92, 93 Strough v. Wilder 212 Strout v. Packard 16 Sti uthers v. Phila. etc. R. Co 147 lxxxviii TABLE OF CASES CITED. PAGE Stumore v. Shaw 145 Stumph v. Muller 141 Sturdy v. Jackaway 123 Sturgis v. Work 225, 234 Sturla v. Freccia 56, 113 Sturm v. Atlantic Ins. Co 316 Suburban Elec. Co. v. Elizabeth 224 Succession of Justus 113 Sudlow v. Warshing 185 Sugden v. St. Leonards 100, 101 Sullivan v. Baxter 124 v. Coram 156 v. Eddy 68 v. O'Leary 321 v. Oregon R. Co 10 v. Railroad Co 317 v. State 86 v. Syracuse 40 Summerbell v. Summerbell 301 Summers v. Hibbard 228 v. McKim 344 Summons v. State 109 Supples v. Cannon 281 Susman v. Whyard 221 Susq. etc. R. Co. v. Quick 61 Sussex Peerage Case 99, 342 Sutton v. Bowker 233 v. Dameron 122 v. Fox 273 Swadley v. Mo. Pac. R. Co 40 Swails v. Cissna 285 Swaim v. Humphreys 291 Swain v. Cheney 93 v. Frazier 222 v. Seamans 223 Swampscott Co. v. Rice 54 Swan v. Comm 49 v. Housman 278 v. N. B. Australasian Co... 266,379 Swank v. St. Paul R. Co 129 Swanson v. French 324 Swanstrom v. Improvement Co 65 Swarthout v. Ranier 261 Swartz v. Chickering 344 Sweet v. Owens 287 v. Sherman 337 v. Tuttle 130 Swenk v. People 291 Swift v. Life Ins. Co 24,48 S wink v. French 104 Swinnerton v. Columbia Ins. Co. . 170, 172 PAGE Swisher v. Comm 88 v. M alone 340 Switzer v. Knapps 211 Sydleman v. Beckwith 142 Sykes, In re 193 Sykes v. Bonner 125 Sylvester v. State 273 Sylvis v. Sylvis 301 Taddiken v. Cantrell 214 Taitz>.Hall 176 Talbot v. Hodson 185 Tallmadge v. Press Pub'g Co 243 Tarns v. Hitner 181 Tancrez'. Reynolds 254 Tanner v. Parshall 64 Tappan v. Kimball 67 Tarbox v. Eastern Steamboat Co 243 v. State 42 Tarsney v. Turner 330 Taussig v. Schields 246 Taylor, In re 234, 258 Taylor v. Adams 196 v. Brown 57 v. Chicago, etc. R. Co 91, 343 v. Felsing 238 v. Foster 289 v. Garnett 284 v. Gilman 23 v. Glaser 211 v. Gould 95 v. Grand Trunk R. Co 60, 61 v. Hess 63 v. Larkin 281 v. M aris 229 v. Morris 240 v. Peck 178 v . Pegram 262 v. State 75, 274 v. Wit ham 98 v. Wright 311 Taylor Will Case 100 Teachout v. People 84 Teal v. Bilby 223 Tedens v. Schumers 338 Teerpenningf . Corn Ex. Ins. Co. 141, 175 Teese v. Huntington 335 Temple v. Comm 297 Tenant v. Tenant 205 Ten Eyck v. Railroad Co 113 Tennant v. Dudley 74 TABLE OF CASES CITED. lxxxix PAGE Terre Haute, etc. R. Co. v. Clem 31 Territory v. Big Knot 73 v. Hart 286 Tessmannz'. United Friends 113, 207 Texas, etc. R. Co. v. Raney 337, 338 Texas Mex. Ry. Co. v. Uribe 259 Thatchers. Me. Cent. R. Co 41 Thayer v. Boston 234 v. Lombard 87 v. Providence Ins. Co 150 ^.Thayer 45 Thebaud v. Hume 294 Theisen v. Dayton 288 Thiede w. Utah 315 Thielmann v. Burg 168 Thill's Sons v. Perkins Lamp Co 36 Thoen v. Roche 101 Thomas v. Coram 172, 173 v . Gage 58 v. Hoosier Co 252 v. Hubbell 132 v. Le Baron 185 v. Miller 271 v. Nelson 190 v. Paul 238 v. People 119, 263 v. Price 94 v. Scutt 222 v. State 152, 298, 305 v. Stigers 172 Thompson v. Blanchard 264 v. Bowie 28, 51 v. Coram 77, 80 v. Engle 293 v. German, etc. R. Co 283 v. Haskell 168 v. Higginbotham 311 v. Ish 49, 289, 293 v. Massie 215 v. Phenix Ins. Co 225 v. Simpson 264 v. State 109 v. Stewart 169 v. Wertz 327 v . Whitman 139 v. Woolf 106 Thompson, Matter of 37 Thomson v. Poor 223 Thomson -Houston Electric Co. v. Palmer 189 Thon v. Rochester R. Co 282 PAGE Thoreson v. Northwestern Ins. Co.. 239 Thorn v. Weatherly 147 Thornell v. Broctori 231 Thornton v. Britton 108 Thornton's Excrs. v. Thornton's Heirs 33c Thorpe v. Keokuk Coal Co 184 Thorson v. Peterson 171 Thresher v. Stonington Bk 282 Thurber v . Anderson 53 Thurman v. Cameron 200 Thurtell v. Beaumont 241 Tierney v. Spiva 319 Tiffany v. Coram 243, 248, 263 Tilden v. Streeter 240 Tillou v. Clinton, etc. Ins. Co 216 Tilson v. Terwilliger 62 Tilton v. Amer. Bible Soc 231 v. Miller 151 Tilyou v. Reynolds /. . 266 Timlow v. P. & R. R. Co 163 Tioga Co. v. South Creek T'p 256 Tisdale v. Pres. of D. & H. Co 59 Titfordz/. Knott 152 Title Co. v. Shallcross 120 Titus v. Ash 335 Tobin w.Jones 281 Todd v, Munson 290 v. Union Dime Inst 211 v. Wich Bros 244 Toebbe v. Williams 217 Tolbert v. Burke 57. 325 Toledo, etc. R. Co. v. Bailey 51 v. Williams 324 Tome v. Parkersburgh, etc. R. Co... 155 Tomlinson v. Derby 329 Tompkins v. Gardner Co 227 Tompson v. Fisher 185 Toof v. Fooley 139 Toohey v. Plummer 328 Tooker v . Gonner 74 Too vey v. Baxter 278 Topeka v. Sherwood 38 Topliff v. Jackson 58 Toplitz v. Hedden 171 Totten v. Bucy 179, 194 v. U.S 283 Towle v. Wadsworth 240 Town v. Smith 122 Townsend v. Masterson Co 68 v. Pepperell 95 xc TABLE- OF CASES CITED. PAGE Tovvnsend v. Rackham 212 Townshend v. Howard 217 Traction Co. v. Bd. of Works. 198, 199, 201 Tracy v. Goodwin 132 Trambly v. Ricard 220 Trammell v. Hudmon 95 Transportation Co. v. Downer 246 Transportation Line v. Hope 145 Trasher v. Everhart 212 Trask v. People 6 Travis v. Brown , 155 Trayhern v. Colburn 129 Treadway v . S. C. etc. R. Co 68 Treadwell v. Whittier 250 Trelawney v. Coleman 47 Trelevert>. Northern Pac. R. Co 192 Tremblay v. Harnden 38 Trevor v. Wood 180 Trevorrow v. Trevorrow 262 Triplett v. Goff's Admr 51 Troeder v. Hyams 182 Trotters. Maclean 54 Truesdell v. Chumar 65 Trustees v. Bledsoe 343 v. Blount 296 v. Colegrove 231 Trustees of Canandarqua Academy v. McKechnie 200, 212 Trustees of Charities v. Connolly ... 182 Tucker v. Linger 19 v. Seamen's Aid Society.. . 231, 233 v. Shaw 272 v. Woolsey 188 Tudor Iron W^rks v. Weber 320 Tufts v. Charlestown 26 Tunstall v. Cobb 154 Turnbull v. Payson 114. 169, 202 v. Richardson 3'8 Turner, In re 105, 113 Turner v. Green 181 z>. Hardin 62,239 v. Newburgh 145 V. Roby 136 v. Shaw 240 v. State 89 Turner's Admr. v. Patton 169, 172 Turner's Estate 289 Turnpike Co. v. Baily 177 v. M'Kean 113 Turpin v. State 20 Turquand v. Knight 290 PAGE Turton v. N. Y. Recorder Co 45 Tuska v. O'Brien 126 Tute». James 132 Tuttle v. Burgett 220 Twogood v. Mayor 53 Twomley v . C. P. N. R. Co 14 Tyler v. Fickett 231 v. Flanders 104 v. Hall 290 Udderzook's Case i"7 Udderzook v. Comm 28 Ufford v. Spaulding 146 Uggla v. West End R. Co 250 Uhl v. M oorhous 190, 224 Ulinew. N. Y. Cent. R. Co 123 Ulmer v. Farnsworth 19 Ulrich v . People 79 v. Ulrich 5 Uniacke v. Chicago, etc. R. Co 320 Union v. Plainfield 104 Union Bk. v. Knapp 91 Union Dime Saw Inst. v. Wilmot.. . 264 Union Nat. Bk. v. Underhill 66 Union Pac. R. Co. v. Botsford 177 v. 0"Brien 319 U. S. v . Amedy 206 v. Angell 109 v . Babcock 54, 193 v . Bay aud 76 v. Boyd 56 v. Budd 240 v. Corwin 113 v. Dickinson 320 v. Duff 192 v. Duffy 83 v. 18 Barrels, etc 318 v. Farrington 286 v. Griswold 63 v. Guiteau 149, 278, 280 v. Hall 305 v. Hinz 79 v. Howell 302 v. Hunter 193 v. Jackson 171 v Johnson 15 v. Macomb 109 v. Mayer 305 v . Moses 283 v. Mulholland 97 v. Mullaney 155 TABLE OF CASES CITED. xci PAGE U. S. v. Negro Charles 2S6 v. Nelson 251 v. Noelke 54 v. Parker 122 v. Percheman 201 v. Perot 163 v. Pocklington 80 v. Rauscher 169 v. Stone 79, 80 v. Thompson 303 v. Tilden 193, 294 ». Trumbull 283 v . Van Sickle 335 v. Williams 53 v. Wood 305 U. S. Express Co. v. Jenkins 239 U. S. Life Ins. Co. v. Vocke in Unity v. Burrage 163 University v. Harrison 258 Upham v. Salem 34 Upthegrove v. State 20 Upton v. Bernstein 100, 182 Utica Ins. Co. v. Cadwell 192 Vadala v. Lawes 138 Vahle v. Brackenseik 166, 173 Vaise v. Delaval 284 Valentine's Will 99, 100 Van Aernam v. Van Aernam 255 Van Bokkelen v. Berdelle 321 v. Taylor 210 Van Brunt v. Day 222 Vance v. State 313 Vander Donct v. Thellusson 146 Vanderpool v. Richardson 144 Vandervoort v. Dewey 233 v . Smith 169 Vanderwerken v. Glenn 114 Van Duyne v. Thayre 60 Vane v. Evanston 177 Van Gelder v. Van Gelder 59 Van Houten v. Post 232 Van Keuren v. Parmelee 66 Vann v. State 20 Vanneter v. Crossman 57 Van Nostrand v. Moore 230 Vannoy v. Klein 66 Van Rensselaer v, Jones 181 v. Vickery 210 Van Sickle v. Gibson 104 Van Storch v. Griffin 161, 202 PAGE Van Tassel v. State 240 Van Wie v. Loomis 93 Van Wycklen v. Brooklyn 145 Yauterz'. Hultz 160 Veazie v. Forsaith 229 Veginan v. Morse 50 Veiths v. Hagge 242 Verdelli v. Gray's Harbor Co 291 Vicksburg, etc. R. Co. v. O'Brien. . 9, 10, 56, 343 v. Putnam 39, 117 Vilas v. Plattsburgh, etc. R. Co 138 Viles v. Waltham 26 Village of Pt. Jervis v. First Nat. Bk. 132 Vilmar v. Schall 93 Vinton v. Peck 154 Violet v. Rose 152 Vogel v. Gruaz 283 v. Osborne 58 Vogt v. Cope 117 Volant v. Soyer 295 Volkmar v. Manhattan R. Co 243 Von Pollnitz v. State 12 Von Sachs v. Kretz 63, 72, 189 Vooght v. Winch 129 Voorhees, In re 217 Vosburgh v. Thayer 92 Vose v. Dolan 218 Vrooman v. Griffiths . . 319 Wadez'. Ridley 287 v. State 238 Wadsworth v. Sharpsteen 118 v. Williams 61 Wagenseller v. Simmers 28 Wait v. Borne 70 Waite v. Coaracy 258 Wakeman v. Bailey 296 Walbridge v. Knipper 108, no, m Waldele v. N. Y. C. R. Co.. . 8, 10, 12, 87 Walden v. Davison 192 Waldron v. Waldron 174 Walker v. People 247 v. Phcenix Ins. Co ... 337,338 v. Robinson 263 v. Walker 213 v. Wilsher 74 Wall v. Wall 136 Wallace v. Central Vt. R. Co 49 v . Harmstad 214 v. People 350 TABLE OF CASES CITED. PAGE Wallace v. Schaub M.3 v. Story 55 v. Taunton St. Ry 322 v. U.S 176 v. Wallace 320 Wallace's Case 156 Wallach v. Wylie 329, 341 Waller v. Graves 4 v. Stewart 344 WallisD Littell 226 v . Luhring 262 v. Randall 67 v. White 335 Wallize v. Wallize 233 Walls v. Bailey 224 Walrath v. Whittekind 228 Walsh v. Chesapeake, etc. R. Co 126 v. People 19. 33 v. Porterfield 318 Walter v. Gernant 9 Walters v. State 248 Walton v. Stafford 173 v. State 335 Wandell v. Edwards 340 Ward v. Boyce 140 v. Dick 45 v. Henry 168 v. Kilpatrick 176 v, Oxford 102 v. People 80 v. State 299 Warder v. Willyard 214 Ware v. Allen 226 v. State 248 Waring v. Smyth 215 Warner v. B. & O. R. Co 183 v. Lockerby 162, 335 v. Press Co 280 Warren v. Carey 69 v. Gregg 220 v. Spencer Co 284 V. Warren 54 Washburn v. Cuddihy 116 v. Milwaukee R. Co 37 Washington & Lee Univ., Appeal of. . 230 Water Commrs. v. Lansing 200 Waterman v. Chic. etc. R. Co. . . 116, 328 v. Whitney 26, 49 Waters v. Bishop 220 Watkins :•. Holman 206 v. Pintard 194 PAGE Watkins v. Rist 319 Z'-State 335.336 Watry v. Ferber 339 Watson, In re 136 Watson v. Brewster 104 v. Riskamire 317 v. Rodwell 174 v. Walker 198, 207 Watt v. People 25, 276 Watts v. Owens 255 Wausau Boom Co. v. Dunbar 243 Way land v. Ware 200 Weaver v. Bromley 56 v. Leiman 94. 104 v. State 248 Webb v . Bird 260 v. Buckelew 121 , 122 v. Dye 185 v. East 299 v. Richardson 107 v. State 337 Webber v. Sullivan 247 Webster v. Le Compte 62, 271 v. Mann 341 Weed v. People 35 Weeks v. Lowerre 108 v. Need ham 66 v. Smith 165 v . Sparke 100, 366 Wegg Prosser v. Evans 131 Wehle v. Spelman 73 Weigand v. Sichel 183 Weir v. Marley 123 Weiss v. Guerineau 137 Welch v. Abbott 327 v. Jugenheimer 241 Welcome v. Batchelder 281 , 341 Weldon v. Harlem R. Co 41 Wellford v. Eakin 181 Wellington v. Jackson 72 Wells v. Company 167 v . Jackson Iron Co 182 v. Kavanagh 70 v . Mo. Pac. R. Co 169 v. Stevens 135 Wells' Admr. v. Ayres 93 Wendlinger v. Smith 222 Werners State 273 Wertheim v. Continental R. Co. 294, 296 Werts v. Spearman 160 \Vertzz>. May 337 TABLE OF CASES CITED. PAGE Wesner v. Stein 57 West v. Druff 34° v. Rassman 233 v. St. Paul Nat. Bk 46 v. Smith 74 v. State 90 v. Van Tuyl 92 Westbrook v. Fulton 194 v . People 87 Westcott v. Atlantic Co 296 v. Edmunds 122, 129 Western Assurance Co. v . Towle 66 Western Mfrs. Ins. Co. v. Boughton.. 334 Western Stone Co. v. Whalen 37, 46 Western Trans. Co. v. Barber 268 Western Union Tel. Co. v. Hines... 344 v . Hopkins 179 West Haven Co. v. Redneld 223 Weston v. Eames. . . : 225 West Virginia v. Cain 104 Wetherbee v. Baker 113 v. Fitch 68 v. Norris 335 v. Winchester 294 Wetmore v. Carryl 217 Weyerhauser v. Dun 218, 268 Weyman v. People 52 Whalen v. Citizens' Gas Co 252 Wharam v. Routledge 344 Wheatly v. Baugh 260 Wheeler v. Ruckman 121 v. Sweet 132 v. Thomas 329 v. U. S 272 v. Walker 90 Whelan v. Lynch 116 Whipple v. Barton 254 v. Whitman 68 Whitaker v. Hawley 125 v. Izod 294 v. Jackson 129 v. Marsh 108 v. Salisbury 330 Whitcher v. McLaughlin 94 v. Morey... no v. Shattuck 46 Whitcomb v. Rodman 231 v. Whiting 69, 71 White v . Beaman 97 v. Beatty 142 v. Chouteau 95 PAGE White v. Comm 272 v. Continental Nat. Bk 267 v. Graves 7 v. Merritt 121 v. Miller 65 v. Milwaukee R. Co 177 v. Murtland 161,340 v. Old Dominion St'p Co 74 v. Ross 254 v. State 85,285, 330 v. Tolliver 152 v. Weatherbee 123 v. White 156, 329 W.Whitney 93 v. Wood 181 White Co. v. Gordon 180 Whitehead v. Kennedy 249 Whitehouse v. Bickford 115 Whiteley v. Equitable Assur.Soc. 258, 262 Whitford v. Clark Co 313 v. Laidler 226 Whiting v. Burger 129 Whitlatch v. Fidelity, etc. Co 238 Whitlock, In re 296 Whitman v. Henneberry 213 v. Morey 176, 319, 33°. 333 v. Shaw 115. 214 v. State 173 Whitmore v. Supr. Lodge Knights. . . 51 Whitney v. Leominster 5° v . Marshall 130 v. Thacher 116 Whitney Arms Co. v. Barlow 240 Whitney Works v. Moore 54 Whitonz>. Albany, etc. Ins. Co. 112,117,206 v. Snyder 58, 62, 143 Whitsett v. Chicago, etc. R. Co 50 Whittaker v. Delaware, etc. R. Co. . 37 Whittlesey v. Frantz 119 Whittuck v. Walters 107 Whitworth v. Erie R. Co 246 Whyman v. Garth 183, 371 Wickersham v. Johnston 208 Widdifield v. Widdifield 224 Wiedemann v. Walpole 58, 300 Wiggin v . B. & A. R. Co 61 v. Goodrich 226 Wiggins v. Burkham 58, 172 v . People 20 Wiggins Co. v. Ohio, etc. R. Co 122 Wigginton v. Comm 84 iABLE OF CASES CITED. PACK Wigglesworth v. Dnllison 224, 374 W'ikoff s Case 217 Wilber v. Selden . . no Wilberforce v. Hearfield 115 Wilder v. Cowles 242 Wiley v. West Jersey R. Co 40 Wilkerson v. Eilers 333 Wilkie v. Collins 241 Wilkins v. Babbershall 328 Wilkinson v. State 115 Willard v. Goodenough 335 Willett v. People 77 v. Rich 237, 246 Willey v. Portsmouth 103 Williams v. Bass 211 v. Bridges 72 v. Brooklyn Elev. R. Co 116 v. Comm 84, 304, 3S3 v. Conger 154 v. Dickenson 239 v. East India Co 241 v. Edmunds .• 160 v. Edwards 271 v . Flood 223 v. Floyd 183 v. Freeman 220 v. Graves 98 v. Lewis 71 v. Montgomery 284 v. Robinson 246 v. Sergeant 61, 315 v. Spencer 141 v . State 80, 85, 154, 177, 298, 317 v. Walbridge 271 v. Wilkes 169 v. Williams 62, 63, 128, 249 Williamsburgh Bk. v. Solon 216 Williamson v. Cambridge R. Co 10 Willis z>. Hulbert 226 Willoughby v. Irish 67 Willson v. Betts 181, 213 v. Manhattan R. Co 133 Wilson, Matter of 271 Wilson v. Anderton 268 v. Babb 255 v. Beauchamp '. 154 v. Boerem 87 v. Bowden 72 v. Deen 223 v. Doran 58 v. Granby 41, 47 TAGE Wilson v. Hayes 217 v. Hotchkiss' Estate 216 v. Kings Co . . 317 v. New Bedford 260 v. Noonan no v. O'Day 69 v. Parshall 240 v. Phenix Mf'gCo 164 v. Powers 222 v. Randall 219 v. Rastall 289 f.State 84,335 v. Sullivan 236 v . U. S 77, 83, 85, 177, 245, 276 v. Van Leer 153, 173 v. Waugh 67 z\ Webber 294 Wilson's Excr. v. Deen 120, 126 Wimer v. Smith 335 Winchell v. Edwards 263 v. Winchell 329 Winchester, etc. R. Co. v. Creary... 62 Windmill Co. v. Piercy 219 Wing v. Angrave 258 v. Bishop 59, 126 v. Chesterfield 350 Winkley v. Kaime 234 Winn v. Patterson 186 Winnipiseogee Lake Co. v. Young.. 170 Winooski v. Gokey 163 Winship v. Conner 258 Winslow v. State 191, 194 Winsor v. R 275 Wisdom v. Reeves 213 Wise v. Ackerman 34 v. Phoenix Ins. Co 342 v. Wynn 104 Wisemans. N. P. R. Co 189 Withee v. Rowe 155 Withington v. Warren z8i Witmarkw. N. Y. Elev. R. Co 37 Wixson v. Devine 129 Wodock v. Robinson 220 Wohlford v. People 116, 176 Wolf v. Comm 80 Wolfe v. Mo. Pac. R. Co 175 Wolford v. Farnham 189, 279 Womack v. Tankersley 156 Wood v. Chetwood 280 v. Cullen 189 v. Fiske 61 TABLE OF CASES CITED. PAGE Wood v. Fowler 170 v. Hammond 233 v. Ins. Co 171 v. Matthews 336 v. Morehouse 261 i'. State g, 20, 84 v. Steele 218 Woodcock v. Houldsworth 54 v. Worcester 40 Woodman v. Segar 182 Woodruff v. Woodruff 124 Woods v. Burke 180 v. Hilderbrand 214 v. Keyes 109 v. Montevallo.etc. Co 46 v. People 339 v. State 276,299 Woodstock Iron Co. v. Reed 184 Woodward v. Goulstone 101 v. Leavitt 284 Woodworth v. Mills 161 Woolfolk v. State 85 Woolsey v. Bohn 93 Woolverton v. Van Syckel 271 Woonsocket Inst. v. Ballou 67 Wooster v. Broadway, etc. R. Co 51 v. Butler 101 Wootters v. Kauff man 305 Wootton v . Redd's Excrs 228 Worcester v. Northborough 112 Worcester Nat. Bk. v. Cheney 170 Worden v. Humeston, etc. R. Co 117 Worthington v. Mencer 272 v. Scribner 283 Wottrich v. Freeman 278 Wren, Ex parte 165 Wright v. Abbott 287 v. Anderson 120 v. Boston 102 v . Crawfordsville 50 v. Doe d. Tatham 27, 143 v . Griffey , 121 v. Maseras 26, 73 v. McCampbell 281 v. Nostrand , 19 PAGE Wright v. Paige 335 v. Towle 65 v. U. S 204 v. Wright 7, 262 Wroe v. State 341 Wrye v. State 77 Wynne v, Newman 4 Xenia Bk. v. Stewart 32, 65 Yale v. Comstock no, in Yarbrough v. State 116, 276, 336, 338 Yates v. Fassett 121 v. People 36 Yocum v. Smith 265 Yoho v. McGovern 131 York v. Pease 320 York Co. v. Central R. Co 312 York, etc. R. Co. v. Winans 168 Yost v. Conroy 144 Young v. Clare Hall 365 v. Comm 79 v. Duvall 240 v. Edwards 319 v. Grote 265, 379 v. Highland 243 v. Johnson 160, 339 v. Kansas City, etc. R. Co 101 v. Makepeace 32 v. Newark Ins. Co 176 v. Perkins 97 v. Sage 108 v. State 80, 89 Youngs v. Youngs 297, 298 Yount v. Howell 167 Zabriskie v. State 301 Zell's Appeal 266 Zellerbach v. Allenberg 188 Zimmerman v. Barber 221 v. Bitner 2^4 v. Bloom 95 v. Camp 216 Zitskef. Goldberg 281 Zoldoske v. State , 52 LIST OF ABBREVIATIONS. (ENGLISH AND IRISH REPORTS, ETC.) A. & E Adolphus & Ellis's Reports. A C ) '" [ Appeal Cases. App. Cas ) Atk , Atkyn's Reports. " „ ■' " {-Barnewall & Alderson's Reports. B. & Aid > B. & Ad Barnewall & Adolphus's Reports. B. & B Broderip & Bingham's Reports. B.&C Barnewall & Cresswell's Reports. B.&S Best & Smith's Reports. Beav Beavan's Reports. Bell Bell's Crown Cases. Best Best on Evidence, 6th ed. Bing Bingham's Reports. Bing. N. C Bingham's New Cases. Bligh, N. S Bligh's House of Lords' Reports, New Series. B. & P Bosanquct & Puller's Reports. Br. P. C Brown's Parliamentary Cases. ™' n ' F 'x't t, r Buller's Nisi Prius. Buller, N. P I Burr Burrows' Reports. C. A Court of Appeal. Camp Campbell's Reports. C. & F Clark & Finnelly's Reports. C.&J Crompton & Jervis's Reports. C. & K Carrington & Kirwan's Reports. C. & M Carrington & Marshman's Reports. C. & P Carrington & Paine's Reports. C. B Common Bench Reports. C. B. (N. S.) Common Bench Reports, New Series. Ch. App Chancery Appeals. Ch.D ) „, p.. . . _,, _. J- Chancery Division. Ch. Div ) C. C. R Crown Cases Reserved. C. M. & R Crompton, Meeson, & Roscoe's Reports. Cowp Cowper's Reports. Cox, Cox's Crown Cases. C. P Common Pleas ; Common Pleas Reports. C.P.D > „ „, TV • ■ _ _ _, [•Common Picas Division. C. P. Div ) xcviii LIST OF ABBREVIATIONS. D. & B Dearsley & Bell's Crown Cases. Dears Dearsley 's Crown Cases. De G. & J De Gex & Jones's Reports. De G. M & G De Gex, Macnaghten, & Gordon's Reports. DeG. & S De Gex & Smale's Reports. Den. C. C Denison's Crown Cases. Doug Douglas's Reports. Dru. & War Drury & Warren's Reports. Ea East's Reports East, P. C East's Pleas of the Crown. E. & B Ellis & Blackburn's Reports. E. & E Ellis & Ellis's Reports. E. & I. App English & Irish Appeals. Esp Espinasse's Reports. Ex Exchequer Reports. Ex ' D I Exchequer Division. Ex. Div ) F. & F Foster & Finlason's Reports. Godb Godbolt's Reports. Hale, P. C Hale's Pleas of the Crown. Hare Hare's Reports. H. Bl H. Biackstone's Reports. H. L House of Lords Reports. H. & C Hurlstone & Coltman's Reports. H. & N Hurlstone & Norman's Reports. H. L. C House of Lords Cases. Ir. Cir. Rep Irish Circuit Reports. Ir. Eq. Rep Irish Equity Reports. Jac. & Wal Jacob & Walker's Reports. Jebb, C. C Jebb's Criminal Cases (Ireland). L. & C Leigh & Cave's Crown Cases. Leach Leach's Crown Cases. L.J.Ch Law Journal, Chancery. L. J. Eq Law Journal, Equity. L. J. M. C Law Journal, Magistrates' Cases. L. J. N.S Law Journal, New Series. L J Q B Law Journal, Queen's Bench. L. R Law Reports. (See Q. B., Q. B. D., C. P.. C. P. D.. Ex. Ex. D , etc.) Madd Maddock's Reports. Man. & R Manning & Ryland's Reports. McNally, Ev McNally's Rules of Evidence. M. & G Manning & Granger's Reports. M. &M Moodj & Malkin's Reports. LIST OF ABBREVIATIONS. M. & S Maule & Selwyn's Reports. M. & W Meeson & Welsby's Reports. Moody Moo. C. C M.&R Mo. &Ro Moo. P. C Moore's Privy Council Reports. > Moody's Crown Cases. > Moody & Robinson's Reports. P Probate Court. P. D Probate Division. P. & D Probate & Divorce. Pea Peake's Reports. Ph. Ev Phillips on Evidence, ioth ed. Phill Phillips' Reports. Q. B Queen's Bench; Queen's Bench Reports. Q. B. D Queen's Bench Division. Rep Coke"s Reports. R. N P Roscoe's Nisi Prius, 13th ed. R. & R Russell & Ryan's Crown Cases. Roscoe, Cr. Ev Roscoe's Criminal Evidence. Russ. Cri )„ ., „ . ., , ^ _ . > Russell on Crimes, 4th ed. Russ. on Crimes ) R. & M Russell & Mylne's Reports. Ry. & Mo Ryan & Moody's Nisi Prius Reports. Sc. App Scotch Appeals. Selw. N P Selwyn's Nisi Prius. Sim Simon's Reports. Sim. (N. S.) Simon's Reports, New Series. Sim. & Stu Simon & Stuart's Reports. S L C I _" ..', 'J "A" [-Smith's Leading Cases, 7th ed. Smith, L. C ) Stark Starkie's Reports. Stark. Ev -Starkie on Evidence, 4th ed. S.&T Sw. &Tr S. T, or St. Tri State Trials. Story's Eq. Juris Story on Equity Jurisprudence. [Swabey & Tristram's Reports. T. E Taylor on Evidence, 6th ed. T. R Term Reports. Tau Taunton's Reports. Ves Vesey's Reports. Vin. Abr Viner's Abridgment. Wig. Ext. Ev Wigram on Extrinsic Evidence. Wills' Circ. Ev Wills on Circumstantial Evidence. LIST OF ABBREVIATIONS. [AMERICAN REPORTS, ETC.] (The abbreviations of the names of the several States, being well understood, are omitted.) Abb. Dec Abbott's Decisions, Court of Appeals, N. Y. Abb. N. C Abbott's New Cases, N. Y. Abb. Pr Abbott's Practice Reports, N. Y. Abb. Pr. (N. S.) " " " " New Series. Alb. L. J Albany Law Journal, N. Y. Allen Allen's Reports, Mass. Am. Dec American Decisions (cases from all States). Am. Law Reg. N. S American Law Register, New Series. Am. Law Rev American Law Review. Anth. N. P Anthon's Nisi Prius Reports, N. Y. App. D. C Appeal Cases, Court of Appeals, District of Columbia. App. Div. (N. Y.) Appellate Division Reports, Supreme Court, N. Y. Atl. R Atlantic Reporter. Barb Barbour's Reports, Supreme Court, N. Y. Barb. Ch Barbour's Chancery Reports, N. Y. Baxt Baxters Reports, Tenn. Ben Benedict's Reports, U. S. District Court. Binn Binney's Reports, Pa. Bishop, Cr. L Bishop on Criminal Law. Bishop, Cr. Pro Bishop on Criminal Procedure. Bishop, M. D. & S Bishop on Marriage, Divorce, and Separation. Biss Bissell's Reports, U. S. Circuit Court. Black, Black's Reports, U. S. Supreme Court. Blackf .Blackford's Reports, Ind. Blatch Blatchford's Reports, U. S. Circuit Court. B. Mon Ben Monroe's Reports, Ky. Bos Bosworth's Reports, Superior Court, N. Y. Br. Purd. Dig Brightly's Purdon's Digest of Statutes, Pa. Bump's Fed. Pro Bump on Federal Procedure. Bush, Bush's Reports, Ky. Cai Caine's Reports, N. Y. Cf Confer, compare. Cine Cincinnati Reports, Oh in. Connol Connoly's Reports, Surrogate Courts, N. Y. Cow Cowen's Reports. N. Y. Cr Cranch's Reports, U. S. Supreme Court. Cr.C.C Cranch's U. S. Circuit Court Reports. Ct. of CI Court of Claims Reports, U. S. Cush Cushing's Reports, Mass. Daly Daly's Reports, Court of Common Pleas. N. Y. Daniel, Neg. Inst Daniel on Negotiable Instruments. Deady Deady's Reports, U. S. Circuit Court. Del. Ch Delaware Chancery Reports. Dem Demarest's Reports, Surrogate Courts, N. Y. Den Denio's Reports, N Y. LIST OF ABBREVIATIONS. Dill Dillon's Reports, U. S. Circuit Court. Disney Disney's Reports, Superior Court, Ohio. Duer, Duer's Reports, Superior Court, N. Y. E. D. Sm E. D. Smith's Reports, Court of Common Pleas, N. Y. Edm. Sel. Cas Edmond's Select Cases, N. Y. Edw. Ch Edwards' Chancery Reports, N. Y. F. R Federal Reporter, U. S. Circuit and District Courts. G. & J Gill & Johnson's Reports, Md. Gilm Oilman's Reports, 111. Gr. Ev Greenleaf on Evidence. Gratt Grattan's Reports, Va. Gray, Gray's Reports, Mass. Hill Hill's Reports, N. Y. Hilt Hilton's Reports, Court of Common Pleas, N. Y. Houst Houston's Criminal Cases, Del. How. Pr Howard's Practice Reports, N. Y. How. St Howell's General Statutes of M ichigan. How. (U. S.) Howard's Reports, U.S. Supreme Court. Humph Humphrey's Reports, Tenn. Hun, Hun's Reports, Supreme Court, N. Y. 111. App Illinois Appeals Reports. Ind. App Indiana Appeals Reports. J. & Sp Jones & Spencer's Reports, Superior Court, N. Y. Johns Johnson's Reports, N. Y. Johns. Cas Johnson's Cases, N. Y. Johns. Ch Johnson's Chancery Reports, N. Y. Kent's Co mm Kent's Commentaries on American Law. Keyes Keyes' Reports, Court of Appeals, N. Y. La. Ann Louisiana Annual Reports. Lans Lansing's Reports, Supreme Court, N. Y. Lea Lea's Reports, Tenn. Lowell, Lowell's Reports, U. S. District Court. McArth McArthur's Reports, Supreme Court, D. C. McCrary McCrary's Reports, U S. Circuit Court. McL McLean's Reports, U. S. Circuit Court. Mackey, Mackey's Reports, District of Columbia. Md. Ch Maryland Chancery Reports. Met. . Metcalf's Reports, Mass. Mill, (S Car) Mill's Reports, S. Car. Mills, Em. Dom Mills on Eminent Domain. Misc Miscellaneous Reports, N. Y. Mo. App Missouri Appeals Reports. Munf. Munford's Reports, Va. N , ....Note. N.J. Eq New Jersey Equity Reports. LIST OF ABBREVIATIONS. N. J. L New Jersey Law Reports. N. J. Rev New Jersey Revision of Statutes. N. S New Series. N. Y. Civ. Fro. R N. Y. Civil Procedure Reports. N. Y. Code Civ. Pro New York Code of Civil Procedure. N. Y. Code Cr. Pro New York Code of Criminal Procedure. N. Y. Pen. Code New York Penal Code. N. V. S New York Supplement. N. Y. St. R New York State Reporter. O. C. C Ohio Circuit Courts Reports. O. St Ohio State Reports. Pai Paige's Chancery Reports, N. Y. Park. Cr Parker's Criminal Reports, N. Y. Pet Peters' Reports, U. S. Supreme Court. Pet. C. C Peters' U. S. Circuit Court Reports. Phila , Philadelphia Reports, Pa. Pub. St Public Statutes. Pick Pickering's Reports, Mass. R. S Revised Statutes. Redf Redfield's Reports, Surrogate Courts, N. Y. Rev. St Revised Statutes. Rob Robertson's Reports , Superior Court, N. Y. S Section. S. C Same Case. S P Same Principle. S. & R Sergeant & Rawle's Reports, Pa. Sandf Sandford's Reports, Superior Court, N. Y. Sandf. Ch Sandford's Chancery Reports, N. Y. Sawy Sawyer's Reports, U. S. Circuit Court. Scam .Scammon's Reports, 111. Sumn Sumner's Reports, U. S. Circuit Court. Tenn. (Ch.) Tennessee Chancery Reports. Tex. App Texas Criminal Appeals Reports. T. & C Thompson & Cook's Reports, Supreme Court. N Y Tucker, Tucker's Reports, Surrogate Courts, N. Y. W. I) Weekly Digest, X. Y. W. & S Watts and Sergeant's Reports, Pa. Wall Wallace'.- Reports, U.S. Supreme Court. Wash. C. C Washington's U. S. Circuit Court Reports. Washb. R P Washburn on Real Property. Watts Watts' Repi .rts, Pa. Wend Wendell's Reports, N. Y. Wh. Cr. Ev Wharton on Criminal Evidence, 9th ed. Wh. Ev Wharton on F.\ idence. Whaft Wharton's Reports, Pa. Wheat Wheaton's Reports, U. S. Supreme Court. Woods, Woods' Reports, U. S. Circuit Court. A DIGEST OF THE LAW OF EVIDENCE. PART I. RELEVANCY. CHAPTER I. PRELIMINARY. Article i.* definition of terms. In this book the following words and expressions are used in the following senses, unless a different intention appears from the context : "Judge" includes all persons authorized to take evi- dence, either by law or by the consent of the parties. " Fact " includes the fact that any mental condition of which any person is conscious exists. 1 " Document " means any substance having any matter expressed or described upon it by marks capable of being read. " Evidence " 2 means — ■ * See Note I. [Appendix]. 1 [But, besides "including" what is here stated as to "mental con- ditions," the word "fact" is used, throughout this book in its ordinary signification, as denoting acts, events, occurrences, etc.] * [Evidence is the means or medium of proof, while proof 'is the effect or result of evidence {People v. Beckwith, 108 N. Y. 67, 73). Demonstrative evidence is such as establishes a fact conclusively, A DIGEST OF [Part I. ( i ) Statements made by witnesses in eourt under a legal sanction, in relation to matters of fact under inquiry ; such statements are called oral evidence : ' (2) Documents produced for the inspection of the court or judge ; such documents are called documentary evidence. " Conclusive proof " means evidence upon the produc- tion of which, or a fact upon the proof of which, the judge beyond doubt ; moral evidence is evidence by which the truth of a matter may be established to a confident belief or conviction, though not excluding possible doubt (Babcock v. Fitchburg R. Co., 140 N. Y. 308, 311). Competent evidence is that which is fit and appropriate in its nature as a means of proof; satisfactory or sufficient evidence, that amount or weight of evidence which is adapted to convince a reasonable mind. The judge or court decides whether evidence is com- petent or admissible, and, therefore, primarily, whether such facts are sufficiently proved as must exist to render it admissible ; the jury, in jury trials, decide as to the weight or sufficiency of the evidence bear- ing on the point in issue (Comm. v. Robinson, 146 Mass. 571 ; Deal v. State, 140 Ind. 354). Cumulative evidence is, strictly speaking, evi- dence of the same general character to the same point ; but it is sometimes used with the same meaning as corroborative evidence, which is additional evidence, of whatever kind, tending to the same conclusion (Boggess v. Read, 83 la. 548 ; Grogan v. Chesapeake, etc. R. Co., 39 W. Va. 415; Wynne v. Newman, 75 \'a. 811 ; A'eeter v. Jacobs, 87 Wis. 545 ; Waller v. Graves, 20 Ct. 305 ; People v. Superior Ct., 10 Wend. 285). Direct evidence is that given by witnesses who testify their actual knowledge of the fact to be proved (see Art. 62, infra) ; circumstantial evidence is evidence of facts and circumstances from which the existence of the particular fact to be established may be legitimately deduced or inferred (Com/n. v. Webster, 5 Cush. 295 ; People v. Anthony, 56 Cal. 397; Gannon v. People, 127 111. 507; People v. Harris, 136 N. Y. 423; State v. Rome, 64 Ct. 329). Rules of evidence may be changed by the legislature, if vested rights are not thereby destroyed. Howard v. Moot, 64 X. Y. 262; People v. Cannon, 139- N. Y. 32; Meadoivcroft v. People, 163 111. 56; Pennsylvania Co. v. McCann, 54 O. St. 10 ; Larson v. Dickey, 39 Neb. 463.] 1 [They are also called " testimony." Dibble v. Dimmick, 143 X. Y. 549. 554-] Chap. I.] THE LAW OF EVIDENCE. 5 is bound by law to regard some fact as proved, and to exclude evidence intended to disprove it." "A presumption" means a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved. 1 The expression " facts in issue" means — ( 1 ) All facts which, by the form of the pleadings in any action, are affirmed on one side and denied on the other : (2) In actions in which there are no pleadings, or in which the form of the pleadings is such that distinct issues are not joined between the parties, all facts from the establishment of which the existence, non-existence, nature, or extent of any right, liability, or disability asserted or denied in any such case would by law follow. The word " relevant " means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders prob- able the past, present, or future existence or non-existence of the other. 2 1 [What is here called " conclusive proof " is termed by Mr. Green- leaf and some other writers a " conclusive presumption of law," while what is here called a " presumption " is termed by them a " disputable presumption of law." (Gr. Ev. i. §§ 14-46). For illustrations of " con- clusive proof," see post, Articles 40-44, 98; of "presumptions," see Articles 85-89, 94,95,99-101 ; see also Ulrich v. Ulrich, 136 N. Y. 120.] li [See Note I, Appendix ; Plumb v. Curtis, 66 Ct. 154 ; Insurance Co. v. Weide, 11 Wall. 438, 440; Conun. M.Abbott, 130 Mass. 472; Comm. v. Jeffries, 7 Allen, 548, 563 ; Rodgers v. Stophcl, 32 Pa. 11 1 ; Nickerson v. Gould, 82 Me. 512 ; Darling v. Westmoreland, 52 N. H. 401.. It is to be observed that the author uses the expression, " deemed to be relevant," in many of the following Articles to apply- not only to evidence which has true logical relevancy as here denned, but also to evidence which, not being logically relevant, is neverthe- less declared admissible by law as a means of proof. , And so the ex- pression "deemed to be irrelevant," is applied to evidence, which ; though it may be logically relevant, is yet deemed in law inadmissible.] A DIGEST OF IPart 1 CHAPTER II. OF FACTS IN ISSUE AND RELEVANT TO THE ISSUE. Article 2.* facts in issue and facts relevant to the issue may be PROVED. Evidence may be given in any proceeding of any fact in issue, and of any fact relevant ' to any fact in issue unless it is hereinafter declared to be deemed to be irrelevant, and of any fact hereinafter declared to be deemed to be relevant to the issue, whether it is or is not relevant thereto. 2 Provided that the judge may exclude evidence of facts which, though relevant or deemed to be relevant to the issue, appear to him too remote to be material under all the circumstances of the case. 3 * See Note II. [Appendix]. 1 [Schmidt v. Packard, 132 Ind. 398. Evidence which is pertinent to the issue is admissible, though it may have been improperly, or even unlawfully, obtained ; as e. g., documents or articles of property which have been wrongfully taken from a man's room or house (Comm. v. Tibbctts, 157 Mass. 519 ; State v. Mathers, 64- Vt. 101 ; State v. Burroughs, 72 Me. 479; Trash v. People, 151 111. 523; State v. Pomcroy, 130 Mo. 489; State v. Griswold, 67 Ct. 290; Shields v. State, 104 Ala. 35); so if evidence is obtained by writing decoy letters. Andrews v. U. S., 162 U. S. 420.] '-[Facts which are not relevant are often called " collateral facts," and it is a commonly stated rule that evidence of collateral facts is not admissible. McLoghlin v. Mohawk, etc. Ph., 139 N. Y. 514 ; Eaton v. Telegraph Co., 68 Me. 63 ; Moore v. Richmond, 85 \'a. 538.] [As to the exclusion of evidence for remoteness, see Illustrations (b) Chap. II.] THE LAW OF EVIDENCE. 7 Illustrations. (a) A is indicted for the murder of B, and pleads not guilty. The following facts may be in issue ; — The fact that A killed B ; the fact that at the time when A killed B he was prevented by disease from knowing right from wrong :' the fact that A had received from B such provocation as would reduce his offense to manslaughter. 2 The fact that A was at a distant place at the time of the murder would be relevant to the issue ; 3 the fact that A had a good character would be deemed to be relevant; 4 the fact that C on his deathbed declared that C and not A murdered B would be deemed not to be relevant. 5 (b) [The question is, whether A had sufficient mental capacity to execute a deed at the time when it was executed. Evidence of A's mental condition a year afterwards may be ex- cluded, in the discretion of the trial judge, as too remote.] 6 (c) [The question is, whether the death of A, a fireman upon a locomotive, was due to the negligence of the railroad company in allowing a culvert to become obstructed whereby the water overflowed and washed away the soil under the track. (c) (d) ; also Nicholson v. Waful, 70 N. Y. 604 ; Kenfiedy v. People, 39 N. Y. 245, 254 ; Ockershausen v. Durant, 141 Mass. 338 ; People v. Niles, 44 Mich. 606 ; People v. Hendrickson, 53 Mich. 525 ; Packard v. Bergen R. Co., 54 N. J. L. 553 ; Mansfield Coal Co. v. McEnery, 91 Pa. 185 ; Amoskeag Co. v. Head, 59 N. H. 332. But evidence which has a legitimate tendency, though slight, to prove a fact in issue, is admissible, unless it be deemed too slight and therefore remote. Nickerson v. Gould, 82 Me. 512; Hunts?nan v. Nichols, 116 Mass. 521 ; Comm. v. Abbott, 130 Mass. 472 ; Johnson v. Comm., 115 Pa. 369 ; Ryan v. People, 79 N. Y. 593 ; see Articles 9 and 10.] 1 [Moelt v. People, 85 N. Y. 373 ; State v. Hoyt, 47 Ct. 5 18 ; Nevling v. Comm., 98 Pa. 322 ; see Art. 95, Illustration {ce).] ^[Bishop Cr. L. ii. §§ 701-719 ; see Shufflin v. People, 62 N. Y. 229.] 3 [See Art. 95, Illustration {ce), and note.] 4 [Slover v. People, 56 N. Y. 315 ; Remsen v. People, 43 N. Y. 6; Comm. v. Webster, 5 Cush. 295 ; Hamilton v. People, 29 Mich. 195; see Art. 56.] 5 [So a letter of C, stating that he committed the murder, would be deemed not to be relevant. Greenfield v. Pvople, 85 N. Y. 75 ; see Art. 14, Illustration (f),post.] 6 [ While v. Graves, 107 Mass. 325 ; Wright v. Wright, 139 Mass. I77-] A DIGEST OF [Part I. Evidence that the same culvert was obstructed by logs and an accumulation of mud and brush at a date three years after the injury to A, was deemed inadmissible.] 1 (d) [The question is, whether an injury to A, a railway passenger, was caused by the negligence of the railroad company in having its bridge too narrow for the safe passage of the car in which A was riding. Evidence that this bridge (a wooden one) was replaced by a new iron bridge a few months afterwards, which afforded a wider space for the passage of cars, was deemed too remote.] 4 Article 3. relevancy of facts forming part of the same transaction as the facts in issue. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong, or any other subject of inquiry which may be in issue. Every fact which is part of the same transaction as the facts in issue is deemed to be relevant to the facts in issue, although it may not be actually in issue, and although if it were not part of the same transaction it might be excluded as hearsay. 8 1 [Stoker v. St. Lotus, etc. R. Co., 91 Mo. 509.] ''[Dale v. Delaware, etc. R. Co., 73 N. Y. 468.] 3 [This rule is embraced in the doctrine which is commonly called in the law of evidence the doctrine of res gesta>. (See Gr. Ev. i. § 108). This, briefly stated, is that evidence of acts or declarations forming part of the res gestce (z. e., " transaction," or " act to be proved") so as to explain or qualify it, is admissible when such "transaction" or "act" forms the fact in issue or is deemed relevant thereto ( Waldele \.N. Y. C. R. Co., 95 N. Y. 274; Lander v. People, 104 111. 248; Norwich Co. v. Flint, 13 Wall. 3 ; Steamboat Co. v. Brocket!, 121 U. S. 637; Springfield, etc. R. Co. v. Welsch, 155 111. 511 ; Comm. v. Densmore, 12 Allen, 535 ; Elkins v. McKean, 79 Pa. 493). These acts or declarations so connected with the res gestce are deemed relevant, Chap. II.] THE LAW OF EVIDENCE. 9 Whether any particular fact is or is not part of the same transaction as the facts in issue is a question of law upon which no principle has been stated by authority and on which single judges have given different decisions. 1 because they serve to show its nature, purpose, occasion, or object, to explain its origin or significance, to exhibit the relations of the parties concerned therein, etc. (Id. ; People v. Davis, 56 N. Y. 95, 102 ; EigJuny v. People, 79 N. Y. 546 ; Devetiey v. Baxter, 157 Mass. 9). But declarations which are subsequent to the transaction, being a narrative of it as a past event, or otherwise forming no constituent part of it, are not admissible ; and the same is true of declarations which are antecedent to the transaction and so form no part thereof (IVoodv. Slate, 92 Ind. 269 ; Martin v. N. Y., etc. R. Co., 103 N. Y. 626 ; Vicksburg, etc. R. Co. v. O'Brien, 1 19 U. S. 99 ; Estell v. State, 51 N. J. L. 182 ; Durkee v. Cent. Pac. R. Co., 69 Cal. 533 ; Montag v. People, 141 111. 75 ; Hall v. State, 132 Ind. 317 ; State v. Kennade, 121 Mo. 405 ; see Comm. v. Crowley, 165 Mass. 569 ; Bigley v. Williams , 80 Pa. 107). But declarations may form part of the res gesta, though made, not by parties to the action, but by bystanders (Illustration (a); Castner v. Sliker, 33 N. J. L. 95 & 507; Walter v. Gemant, 13 Pa. 515 ; Ordivay v. Sanders, 58 N. H. 132 ; Morton v. State, 91 Tenn. 437; State v. Kaiser, 124 Mo. 651; Metr. R. Co. v. Collins, 1 App. D. C. 383; Baker v. Gansin, 76 Ind. 317). Declara- tions made by a party in his own favor are admissible, if they form part of the res gestce {Chase v. Chase, 66 N. H. 588 ; Pinney v. yones, 64 Ct. 545). This general doctrine also includes the rule stated post at the begin- ning of Article 8, and is usually deemed to embrace the cases consid- ered under Article 4 ("Acts of Conspirators"), Article 17 (so far as the declarations of agents and partners are concerned), Article 27 (" Declarations made in course of business," etc.), and also certain cases included under Article 9 (see Illustration c) and Article 11 (see Illustrations k, I, and m). Sometimes also other cases are included under this general principle. Gr. Ev. i. §§108-123 ; see post, Note V. Appendix.] 1 [The author has added this paragraph to the text since the decision in England in Bedingfield's case (see Illustration b). In some Ameri- can decisions an attempt has been made to express a definite rule upon the subject, but it is stated in so vague and general a form as to be difficult of application. Thus it is said, "The general rule is that declarations, to become a part of the res gestcz, must accompany the io A DIGEST OF [Part I. When a question as to the ownership of land depends on the application to it of a particular presumption capable •of being rebutted, the fact that it does not apply to other act which they are supposed to characterize and must so harmonize with it as to be obviously one transaction" {Moore v. Meacham, io N. Y. 207, 210; Enos v. Tuttle, 3 Ct. 250). It is often stated that acts or declarations, to form part of the res gestce, must be "contemporane- ous" or "concomitant" with it (Gr. Ev. i. §110), and Bedingfield's case shows that this rule is applied in England very strictly. In this country also numerous decisions are found applying the rule strictly, and holding that declarations made "immediately after" an act or occurrence to which they relate are not admissible in evidence (Illustration (ca); People v. Wong Ark, 96 Cal. 125; Williamson v. Ca?nb ridge R. Co., 144 Mass. 148; Sullivan v. Oregon R. Co., 12 Or. 392 ; Cleveland, etc. R. Co. v. Mara, 26 O. St. 185 ; Rockwell v. Taylor, 41 Ct. 55) ; while, on the other hand, many cases hold it to be sufficient if the acts or declarations occur at or ?iear the time of the main trans- action, if they are so closely near, and are of such a character, that they may properly be regarded as directly occasioned or evoked by such transaction, and not by any supervening cause or motive (Illustration (cb) and cases cited ; Insurance Co. v. Mosley, 8 Wall. 397 ; Hunter v. State, 40 N. J. L. 495 ; Hanover R. Co. v. Coyle, 55 Pa. 396; International, etc. R. Co. v. Anderson, 82 Tex. 516; State v. Horan, 32 Minn. 394 ; State v. Driscoll, 72 la. 583 ; State v. Harris, 45 La. Ann. 842 ; Ohio, etc. R. Co. v. Stein, 133 Ind. 243 ; Christian- son v. Pioneer Co., 92 Wis. 649 ; Cleveland v. Newsom, 45 Mich. 62 ; McLeod v. Ginther, 80 Ky. 399; and see Lund v. Tyngsborough, 9 Cush. 36. The subject is fully discussed in Waldele v. N. Y. C. R. Co., 95 N. Y. 274). This disagreement among the authorities is, however, to a consider- able extent, more seeming than real, because in some kinds of cases an interested or designing or otherwise improper motive is apt to spring into activity more speedily than in other cases, and, therefore, declarations, attributable to it, may require, in principle, to be excluded, though made immediately after the transaction (Illustration (ca) ; Metr. R. Co. v. Collins, 1 App. D. C. 383). And again, immediately ensuing statements may be in the nature of narrative or explanation, and so be deemed no part of the transaction (see p. 12, n. 1, post). But, nevertheless, there is still a noteworthy conflict of opinion in applying the doctrine of res gesto?. See the diverse opinions in Vicksburg, etc. R. Co. v. O'Brien, 119 U. S. 99, and in Barber v. St. Louis, etc. R. Co., 126 Mo. 143.] Chap. II.J THE LAW OF EVIDENCE. n neighboring pieces of land similarly situated is deemed to be relevant. 1 Illustrations. (a) The question was, whether A murdered B by shooting him. The fact that a witness in the room with B, when he was shot, saw a man with a gun in his hand pass a window opening into the room in which B was shot, and thereupon exclaimed, " There's butcher ! " (a name by which A was known), was allowed to be proved by Lord Campbell, L. C. J.' 2 1 [Gr. Ev. i. §53 a.] * R.\.Fowkes, Leicester Spring Assizes, 1856. Ex relatione O'Brien, Serjt. In the report of this case in the Times for March 8, 1856, the evidence of the witnesses on this point is thus given : — '* William Fowkes : My father got up (?went to) the window, and opened it and shoved the shutter back. He waited there about three minutes. It was moonlight, the moon about the full. He closed the window but not the shutter. My father was returning to the sofa when I heard a crash at the window. I turned to look and hooted ' There's butcher.' I saw his face at the window, but did not see him plain. He was standing still outside. I aren't able to tell who it was, not certainly. I could not tell his size. While I was hooting the gun went off. I hooted very loud. He was close to the shutter or there- abouts. It was only open about eight inches. Lord Campbell : Did you see the face of the man ? Witness : Yes, it was moonlight at the time. I have a belief that it was the butcher. I believe it was. I now believe it from what I then saw. I heard the gun go off when he went away. We heard him run by the window through the garden towards the park." Upon cross-examination the witness said that he saw the face when he hooted and heard the report at the same moment. The report adds, " The statement of this witness was confirmed by Cooper, the policeman (who was in the room at the time), except that Cooper saw nothing when William Fowkes hooted 'there's butcher at the win- dow!'" He stated he had not time to look before the gun went off. In this case the evidence as to W. Fowkes' statement could not be admissible on the ground that what he said was in the prisoner's presence, as the window was shut when he spoke. It is also, obvious that the fact that he said at the time " there's butcher" was far more likely to impress the jury than the fact that he was at the trial uncer- tain whether the person he saw was the butcher, though he was dis- A DIGEST OF [Part I. (b) The question was, whether A cut B's throat, or whether B cut it herself. A statement made by B when running out of the room in which her throat was cut immediately after it had been cut was not allowed to be proved by Cockburn, L. C. J. 1 (c) The question was, whether A committed manslaughter on B by carelessly driving over him. A statement made by B as to the cause of his accident as soon as he was picked up was allowed to be proved by Park, J., Gurney, posed to think so. [Cases closely resembling R. v. Fowkes are : Dismukes v. State, 83 Ala. 287 ; State v. Schmidt, 73 la. 469 ; Lander v. People, 104 111. 248 ; State v. Duncan, 1 16 Mo. 288 ; State v. Des- roches, 48 La. Ann. 428 ; State v. Biggerstaff, 17 Mont. 510.] 1 R.v. Bedingfield, Suffolk Assizes, 1879, [14 Cox, 341]. The pro- priety of this decision was the subject of two pamphlets, one by W. Pitt Taylor, who denied, the other by the Lord Chief Justice, who maintained it. [In a similar American case the declarations were held admissible (J'ou Pollnitz v. State, 92 Ga. 16; cf. People v. Ah Lee, 60 Cal. 85). In Massachusetts it has been held that where a per- son was stabbed and said to a person who reached him within about twenty seconds after the injury, " I'm stabbed ; I'm gone ; Dan Hackett stabbed me," these words were admissible on the trial of his assailant for murder, as part of the res gesta> {Comm. v. Hackett, 2 Allen, 136 ; see Comm. v. HP Pike, 3 Cush. 181 ; People v. Simpson, 48 Mich. 474 ; Waldele v. N. Y. C. R. Co., 95 N. Y. 278). But declarations by the wounded man, made a few minutes after the fatal injury, so as to be a narrative or explanation of what had happened, are not admissible {Parker v. State, 136 Ind. 284 ; see State v. Deuble, 74 la. 509 ; State v. Po7iieroy, 25 Kan. 349). In Kirby v. Comm., yj Va. 681, however, the wounded man ran eighty feet, and then exclaimed, about two minutes after the injury, " I am shot ; William Kirby has shot me," and these statements were held to be part of the res gesta and admissible. In State v. Murphy, 16 R. I. 528, statements made by the injured man ten or fifteen minutes after the injury were held admissible; few cases, however, have gone to this length. (Cf. State v. Martin, 124 Mo. 514; Comm. v. IVerntz, 161 Pa. 591 ; Jones v. Comm., 86 Ya. 740; Jones v. State, 71 Ind. 66; Louisville, etc. R. Co. v. Pearson, 97 Ala. 211 ; State v. Brown, 28 Or. 147). For a valuable discussion of Bedingfield's case and of the general doctrine of res gesta , t see American Law Review, xiv. 817, xv. 1 and 71. The writer thinks the evidence should have been admitted in this case. Id. xv. 89.] I Chap. II.] THE LAW OF EVIDENCE. 13 B., and Patteson, J., though it was not a dying declaration within Article 26. 1 (ca) [The question is, whether A was injured through the negligent driving by B's servant of a car drawn by horses. The driver, as he was getting off the car and out of the crowd which had gathered, directly after the accident, was asked why he did not stop the car and replied that the brake was out of order. This statement of his was not allowed to be proved. " The alleged wrong was complete and the driver was only endeavoring to account for what he had done. He was manifestly excusing himself and throwing the blame on his principals."] ' 2 {cb) [A sues B (a railroad company) to recover damages for injuries suffered by him, through B's alleged negligence, in falling upon the platform at a station, while he was alighting from a train. Declarations by A as to the cause of his injuries, made by him immediately after the train left the station and while he lay upon the platform where he fell, were allowed to be proved.] 3 (cc) [The question was, whether A, a physician, committed the crime of killing B (a woman) by the use of means to procure an abortion upon B's person. A statement made by B after returning home from A's office of what A had done and said to her there was not allowed to be proved.] 4 (cd) [The question was, whether A was negligent in jumping from the vehicle of B (a carrier of passengers) when the vehicle was ap- parently in a position of imminent danger. 1 R. v. Foster, 6 C. & P. 325 ; [cf. Lahey v. Ottman &° Co., 73 Hun, 61.] ' 2 [Ludy v. Hudson River R. Co., 17 N. Y. 131 ; Latie v. Bryant, 9 Gray, 245.] 3 [Pennsylvania R. Co. v. Lyons, 129 Pa. 113. But statements by an injured person as to the cause of injury, which were not made until he had been removed a short distance from the place of the injury and a doctor obtained, were deemed not admissible {Merkle v. Bennington, 58 Mich. 156 ; see Chicago, etc. R. Co., v. Becker, 128 111. 545 ; Eastman v. Boston, etc. R. Co., 165 Mass. 342). In Indiana, similar statements made before removal from the place of injury and within two minutes of its occurrence were held admissible. Louisville, etc. R. Co. v. Buck, 1 16 Ind. 566 ; see Lea/icy v. Cass Ave., etc. R. Co., 97 Mo. 165 ; Mo. Pac. R. Co. v. Baier, 37 Neb. 235.] 4 [People v. Davis, 56 N. Y. 95 ; Maine v. People, 9 Hun, 113 ; cf. People v. Murphy, 101 N. Y. 126 ; Mutcha v. Pierce, 49 Wis. 231.J «* 14 A DIGEST OF [Part I. The acts of other passengers in jumping from the vehicle at the same time were allowed to be proved.]' (d) The question is, whether A, the owner of one side of a river, owns the entire bed of it or only half the bed at a particular spot. The fact that he owns the entire bed a little lower down than the spot in question is deemed to be relevant.'-' ( Mich. 268 ; Lowe v. Dalrymple, 117 Pa. 564 ; Ochs v. People, 124 III. 399 ; People v. Bentley, 75 Cal. 407 ; Primmer v. Primmer, 75 la. 415 ; see Stront v. Packard, 76 Me. 148.] 1 R. v. Blake, 6 Q. B. 137-140. 2 R. v. Hardy, 24 S. T. passim, but see particularly 451-453. Chap. II.] THE LAW OF EVIDENCE. 17 Article 5.* When the existence of any right of property, or of any right over property is in question, every fact which con- stitutes the title of the person claiming the right, or which shows that he, or any person through whom he claims, was in possession of the property, and every fact which con- stitutes an exercise of the right, or which shows that its exercise was disputed, or which is inconsistent with its existence or renders its existence improbable, is deemed to be relevant^ Illustrations. (a) The question is, whether A has a right of fishery in a river. An ancient inquisitio post mortem finding the existence of a right of fishery in A's ancestors, licenses to fish granted by his ancestors, and the fact that the licensees fished under them, are deemed to be rele- vant. 2 (o) The question is, whether A owns land. The fact that A's ancestors granted leases of it is deemed to be relevant. 3 (c) The question is, whether there is a public right of way over A's land. The facts that persons were in the habit of using the way, that they * See Note IV. [Appendix] ; see also Art. 88 as to proof of ancient deeds. 1 [Hosford v. Ballard, 39 N. Y. 147 ; Cagger v. Lansing, 64 N. Y. 417 ; Miller v. L. I. R. Co., 71 N. Y. 380 ; Fletcher v. Fuller, 120 U. S. 534 ; Anderson v. McCormick, 129 111. 308 ; Boston v. Richardson, 105 Mass. 351 ; Gloucester v. Gaffney, 8 Allen, 11 ; Berry v. Raddin, 11 Allen, 577 ; Sailor v. Hertzogg, 10 Pa. 296. In proving facts of ancient date to establish title, evidence may be received which would be in- admissible as to facts within the memory of living witnesses. Bogardus v. Trinity Church, 4 Sandf. Ch. 633 ; Goodwin v. Jack, 62 Me. 414.] 2 Rogers v. Allen, 1 Camp. 309. 3 Doe v. Pulman, 3 Q. B. 622, 623, 626 (citing Duke of Bedford v. Lopes). The document produced to show the lease was a counterpart iS A DIGEST OF [Part I. were turned back, that the road was stopped up, that the road was repaired at the public expense, and A's title-deeds showing that for a length of time, reaching beyond the time when the road was said to have been used, no one had power to dedicate it to the public, are all deemed to be relevant.' (d) The question is, whether A has a several fishery in a river. The proceedings in a possessory suit in the Irish Court of Chancery by the plaintiff's predecessor in title, and a decree in that suit quieting the plaintiff's predecessor in his title, is relevant, as showing posses- sion and enjoyment of the fishery at the time of the suit.' 2 Article 6. CUSTOMS. "When the existence of any custom is in question, every fact is deemed to be relevant which shows how, in par- ticular instances, the custom was understood and acted upon by the parties then interested. Illustrations. (a) The question is, whether, by the custom of borough-English as prevailing in the manor of C, A is heir to B. The fact that other persons, being tenants of the manor, inherited from ancestors standing in the same or similar relations to them as that in which A stood to B, is deemed to be relevant. 3 signed by the lessee. See post, Art. 64. [See Osgood v. Coates, 1 Allen, 77.] 1 Common practice. As to the title-deeds, Brough v. Lord Scars- dale, Derby Summer Assizes, 1865. In this case it was shown by a series of family settlements that for more than a century no one had had a legal right to dedicate a certain footpath to the public. - Neill v. Duke of Devonshire, L. R. 8 App. Cas. 135 ; see especially p. 147- " Muggleton v. Burnt it, 1 H. l\: X. 282 ; and see Johnstone v. Lord Spencer, 30 Ch. D. 581. It was held in this case that a custom might be shown by uniform practice which was not mentioned in any customal court roll or other record. For a late case of evidence of a Chap. II.] THE LAW OF EVIDENCE. 19 (b) The question was, whether, by the custom of the country, a tenant-farmer, not prohibited by his lease from doing so, might pick and sell surface flints, minerals being reserved by his lease. The fact that, under similar provisions in leases of neighboring farms flints were taken and sold, is deemed to be relevant. 1 Article 7. motive, preparation, subsequent conduct, explanatory statements. When there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say — any fact which supplies a motive for such an act, 3 or which constitutes preparation for it ; 3 custom of trade, see Ex parte Powell, in re Matthews, 1 Ch. D. 501. [As to proof of a usage of trade or business, see Dickinso7i v. Pough- keepsie, 75 N. Y. 65 ; Mills v. Hallock, 2 Edw. Ch. 652 ; Haskins v. Warren, 115 Mass. 514 ; Chateangay Iron Co. v, Blake, 144 U. S. 476; Ada/ns v. Pittsburgh Ins. Co., 95 Pa. 348. Such a custom may be proved by one witness {Robinson v. U. S., 13 Wall. 363; Bissell v. Campbell, 54 N. Y. 353). As to other customs, see Smith v. Floyd, 18 Barb. 522 ; Ocean Beach Ass'n v. Brinley, 34 N. J. Eq. 438 ; Ulmer v. Famsworth, 80 Me. 500.] 1 Tucker v. Linger, 21 Ch. D. 18 ; and see p. 37. 2 [Illustrations (a) and {ab). Murphy v. People, 63 N. Y. 590 ; Wright v. Nostrand, 94 N. Y. 31 ; Comm. v. Bradford, 126 Mass. 42 ; Comm. v. Hudson, 97 Mass. 565 ; Ettinger v. Comm., 98 Pa. 338 ; Scott v. People, 141 111. 195 ; State v. Lentz, 45 Minn. 177 ; Benson v. State, 119 Ind. 488. But the evidence to show motive must not be too remote (Comm. v. Abbott, 130 Mass. 472). Evidence of motive is admissible, though it tends also to prove the commission of another crime than the one charged (Illustration (ac); Pontius v. People, 82 N. Y. 339; State v. Palmer, 65 N. H. 216 ; People v. Lane, 101 Cal. 513 ; see p. 35, post, note 1). A person may, however, be convicted of crime, though the evidence discloses no motive for his act. People v. Johnson, 139 N. Y. 358 ; Johnson v. U. S., 157 U. S. 320; Comm. v. Buccieri, 153 Pa. 535.] 3 Illustrations (b) and (be). [See Walsh v. People, 88 N. Y. 458; A DIGEST OF [I'art I. any subsequent conduct of such person apparently influenced by the doing of the act, and any act done People v. Scott, 153 N. Y. 40; Comm. v. Choate, 105 Mass. 451. In trials for homicide, or for assaults with homicidal intent, evidence of antecedent threats or of expressions of ill-will, made by the defendant against the person killed or injured, is admissible (Comm. v. Good:.'/-, 14 Gray, 55 ; State v. Hoyt, 46 Ct. 330 ; State v. Cole, 63 la. 695 ; People v.fones, 99 N. Y. 667 ; Comm. v. Holmes, 157 Mass. 233); and so in other cases of forcible injury {fewett v. Banning, 21 N. Y. 27 ; Caverno v.fones, 61 N. H. 623 ; State v. Fry, 67 la. 475) ; but threats made by a person other than the defendant against the person injured are not provable, being res inter alios acta [State v. Beandet, 53 Ct. 536) ; in trials for arson, the defendant's prior threats to burn the property may be proved (State v. Day, 79 Me. 120; People v. Eaton, 59 Mich. 559; Comm. v. Crowe, 165 Mass. 140). In cases of homicide, where it appears that the deceased was or may have been the aggressor, so as to cause the defendant to act in self- defence, evidence is received in many States of threats made by the deceased against the defendant, even though the defendant had not heard of such threats [Wiggins v. People, 93 U. S. 465; Stokes v. People, 53 N. Y. 164 ; Roberts v. State, 68 Ala. 156 ; Turpin v. State, 55 Md. 462 ; State v. Harrod, 102 Mo. 590 ; Prine v. State, 73 Miss. 838 ; State v. Evans, 33 W. Va. 417 ; People v. Thomson, 92 Cal. 506); so a fortiori, if such threats had been made known to the defendant (State v. IVoodson, 41 la. 425 ; Wood v. State, 92 Ind. 269; Lewis v. Comm., 78 Ya. 732 ; cf. Vann v. State, 83 Ga. 44) ; so in trials for assault with intent to murder, a similar rule applies (Leverich v. State, 105 Ind. 277 ; State v. Scott, 24 Kan. 68) ; but generally in other cases than those of self-defence, such evidence of threats is not admitted (State v. Elliott, 45 la. 486 ; People v. Campbell, 59 Cal. 243). So in like trials, evidence of the violent and quarrelsome character of the deceased or person injured is received when the circum- stances indicate that the defendant was acting in self-defence (Abbott v. People, 86 N. Y. 460 ; Uplhcgrove v. State, 37 O. St. 662 ; Stair v. Graham, 61 la. 608; Comm. v. Straesser, 153 Pa. 451 ; Smith v. U. S., 161 U. S. 85 ; Cannon v. People, 141 111. 270; Knight v. Sntythe, 57 \"t. 529 ; Galbraith v. Fleming, 60 Mich. 403 ; State v. Downs, 91 Mo. 19; see Comm. v . Barnacle, 134 Mass. 215). The evidence in such cases must be of general reputation for violence, etc., and not of specific acts of violence. People v. Druse, 103 N. Y. 655 ; Alexander v. Comm., 105 Pa. 1 ; Harrison v. Comm., 79 Va. 374 ; but see People v. Harris, 97 Mich. 87.] Chap. II.] THE LAW OF EVIDENCE. 21 in consequence of it by or by the authority of that person. 1 Ilhcstrations. - (a) The question is, whether A murdered B. The facts that, at the instigation of A, B murdered C twenty-five years before B's murder, and that A at or before that time used expressions showing malice against C, are deemed to be relevant, as showing a motive on A's part to murder B. 2 (ab) [The question is, whether A murdered B. The fact that A had been living in adultery with B's wife is deemed to be relevant, as showing motive. 3 The fact that B had been personally pressing A for payment of a debt which A had no means to pay is deemed to be relevant, for a like reason.] 4 (ac) [A is indicted and tried for the murder of his eldest daughter by drowning her. Evidence tending to prove that A caused the deaths of his wife and youngest daughter by drowning at about the same time, and also showing that he married another woman immediately afterwards, is deemed to be relevant, as tending to prove that his motive was, by putting his wife and children out of existence, to enable him to enter into this second marriage.] 5 1 Illustrations (c), (d) and (e). [See Harrington v. Keteltas, 92 N. Y. 40; Morris v. French, 106 Mass. 326; Banfield \. Whipple, 10 Allen, 27 ; People v. Ah Fook, 64 Cal. 380.] 2 R. v. Clewes, 4 C. & P. 221. [See Say res v. Comm., 88 Pa. 291; McCne v. Comm., 78 id. 185 ; State v. Dickson, 78 Mo. 438. In Good- win v. State, 96 Ind. 550 (a trial for murder) threats made by the de- fendant thirty years before against the deceased were allowed to be proved ; and so as to threats made thirteen years before and repeated in later years (State v. Glahn, 97 Mo. 679 ; see Pulliam v. State, 88 Ala. 1). But the jury may consider the remoteness of such evidence in determining its weight.] z \Comm. v.Ferrigan, 44 Pa. 386; see Comm. v. Choate, 105 Mass. 458 ; People v. Scott, 153 N. Y. 40 ; Pierson v. People, 79 N. Y. 424 ; State v. Reed, 53 Kan. 767 ; Pate v. State, 94 Ala. 14.] 4 [Comm. v. Webster, 5 Cush. 295 ; see 97 Mass. 566.] h [Hawcs v. State, 88 Ala. 37 ; cf. People v. Craig, in Cal. 460.] A DIGEST OF [Part I. (/;) The question is, whether A committed a crime. The fact that A procured the instruments with which the crime was committed is deemed to be relevant. 1 (be) [A,B, and C are tried for the murder of D. The facts that at the time of the alleged crime these persons were members of a secret society, organized for the commission of crimes i if violence against person and property, and for the protection of one another from detection and punishment, and that on the night before the murder they met together and planned its commission, are deemed to be relevant.] - (c) A is accused of a crime. The facts that, either before or at the time of, or after the alleged crime, A caused circumstances to exist tending to give to the facts of the case an appearance favorable to himself, or that he destroyed or concealed things or papers, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence, are deemed to be relevant. 3 (d) The question is, whether A committed a crime. The facts that, after the commission of the alleged crime, he ab- sconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, and the manner in which he conducted himself when statements on the subject were made in his presence and hearing, are deemed to be relevant. 4 1 R. v. Palmer (passim) ; reported in Stephen's General View of the Crim. Law of England. [Comm. v. Blair, 126 Mass. 40; People v. Hope, 62 Cal. 291 ; Colt v. People, 1 Park. Cr. 611 ; see La Beau v. People, 6 id. 371, 34 N. Y. 223.] ' 2 [Hester v. Comm., 85 Pa. 139 ; McManus v. Comm., 91 id. 57 ; Spies v. People, 122 111. 1, the noted dynamite bomb case in Chicago.] 3 R. v. Patch, Wills' Circ. Ev. 230 ; R. v. Palmer, ub. sup. (passim). [Thus the concealment of an accused person to avoid arrest may be shown (Comm. v. Tolliver, 119 Mass. 312 ; Ryan v. People, 79 N. Y. 593) ; the act of writing letters to fasten the crime on others (Gardiner v. People, 6 Park. Cr. 157), or to keep a witness away from the trial (Adams v. People, 9 Hun, 89) ; the bribing of witnesses to leave the State (Slate v. Norton, 121 Mo. 537) ; the alteration of documents to conceal a fraud (State v. Jamison, 74 la. 613). As to suborning witnesses, see Donohue v. People, 56 N. Y. 208 ; Murray v. Chase, 134 Mass. 92 ; Sinll \. Bray, 56 Wis. 156.] 4 Common practice. [Thus an accused person's flight may be Chap. II.] THE LAW OF EVIDENCE. 23 ( D. Co., L. R. 5 Q. B. 320; [see p. 59, note i, ante.] '-' [ Tanner v. Pa /shall, 4 Abb. Dec. 356.] 3 [Simpson v. Dix, 131 Mass. 179.] 4 [Bond v. Fitzpatrick, 4 Gray, 89 ; Kane v. Torbitt, 23 111. App. 311; contra, Clews v. Kehr, go N. Y. 633.] 5 Fenwick v. Thornton, M. & M. 51 (by Lord Tenterden). In Smith v. Morgan, 1 M. & R. 257, Tindal, C. J., decided exactly the reverse. 6 Pocock v. Billing, 2 Bing. 269. ' [Bearss v. Copier, 10 N. Y. 93 ; see Rouse v. Minted, 25 N. Y. 170. But the fact that the whole statement is admissible does not require the same weight to be given to every part of it. Id.] Chap. IV.] THE LAW OF EVIDENCE. 65 Article 17.* admissions by agents and persons jointly interested with PARTIES. Admissions may be made by agents authorized to make them either expressly or by the conduct of their prin- cipals ; but a statement made by an agent is not an ad- mission merely because if made by the principal himself it would have been one. 1 *See Note XI. [Appendix]. 1 [Illustrations (a), (ab), (c) and (d). The admission of an agent, in order to be competent evidence against his principal, must relate to, and be made in connection with, some act done in the course of his agency, so as to form part of the res gestae {Anderson v. Ro7ne, etc. R. Co., 54 N. Y. 334 ; Manhattan Ins. Co. v. Forty-second St. etc. R. Co., 139 N. Y. 146; Goetz v. Batik of Kansas City, 1 19 U. S. 551 ; Xenia Bk. v. Stewart, 1 14 U. S. 224; Lane v. B. &°A.R. Co., 112 Mass. 455; Giber- son v. Patterson Mills Co., 174 Pa. 369; Ohio, etc. R. Co. v. Stein, 133 Ind. 243; Ayres v. Hubbard, 71 Mich. 594). Or else they must be ex- pressly authorized ( White v. Miller, 71 N. Y. 1 18, 136). But an agent's declarations are not admissible to prove his own authority (Stringham v. St. Nicholas Ins. Co., 4 Abb. Dec. 315; Baltimore, etc. Ass'n v. Post, 122 Pa. 579; Swanstrom v. Improvement Co., 91 Mich. 367). A wife's declarations are competent against her husband when she makes them as his agent, within this rule ; and so of a husband's ad- missions as against his wife. The marital relation does not of itself establish the agency, but it must be otherwise shown to exist ; it may be express or implied (Gr. Ev. i. § 185 ; Lay Grae v. Peterson, 2 Sandf. 338 ; Deck v. Johnson, I Abb. Dec. 497 ; Rose v. Chapman, 44 Mich. 312 ; Phelps v. James, 86 la. 399 ; Goodrich v. Tracy, 43 Vt. 314 ; see McGregor v. Wait, 10 Gray, 72 ; Wright v. Towle, 67 Mich. 255). The admissions of a member or officer of an aggregate corporation, who is not a party to the action, are not competent evidence against the corporation, unless made within this rule while he was acting as its authorized agent (Soper v. Buffalo, etc. R. Co., 19 Barb. 310 ; N. Y. Code Civ. Pro. § 839 ; Trucsdellv. Chumar, 75 Hun, 416 ; Allegheny Co. Workhouse v. Moore, 95 Pa. 408 ; 2 How. St. (Mich.) § 7512). So the admissions of an inhabitant of a municipal corporation are not, in this country, competent evidence against the corporation ; and so of the admissions of a public officer, unless made while he is acting as 66 A DIGEST OF [Part I. A report made by an agent to a principal is not an admission which can be proved by a third person. 1 Partners and joint contractors are each other's agents for the purpose of making admissions against each other in relation to partnership transactions or joint contracts. 2 agent of the municipality, and as part of the res gesto?. Smyth v. lla/igor, 72 Me. 249; Weeks v. Needham, 156 Mass. 289; Gray v. Rollinsford, 58 N. H. 253 ; Petition of Landaff, 34 N. H. 163.] 1 Re Devala Co., 22 Ch. Div. 593 ; [cf. Insurance Co. of N. America v. Gttardiola, 129 U. S. 642.] 2 [Illustrations (e) and (/). This is a well-settled rule as to the admis- sions of a partner made during the existence of the partnership ( Union Nat. Bk. v. Underhill, 102 N. Y. 336; Van Keuren v. Parmelee, 2 N. Y. 512; Smith v. Collins, 115 Mass. 388; Western Assurance Co. v. Towle, 65 Wis. 247; Griffin v. Steams, 44 N. H. 498; Slipp v. Hartley, 50 Minn. 118; Ruckman v. Decker, 23 N. J. Eq. 283). The existence of the part- nership, however, must be first shown, and the admissions of one alleged partner are not competent against others to prove them to be partners, though each one's admissions are receivable against himself to show him to be a partner {Robins v. Warden, 1 1 1 Mass. 244 ; McNeilatis Estate, 167 Pa. 472 ; Bundy v. Bruce, 61 Vt. 619 ; Armstrong v. Potter, 103 Mich. 409 ; Vannoy v. Klein, 122 Ind. 416 ; Greenwood x. Sias, 21 Hun, 391 ; Pleasants v. Pant, 22 Wall. 1 16). One partner cannot con- fess judgment against another, even for a partnership debt {McCleery v. Thompson, 130 Pa. 443; Hall v. Panning, 91 U. S. 160, 170). Different rules prevail in different States as to whether the admis- sions of one partner, made after a dissolution of the firm, shall be receivable against the others. In some States they are admissible against the others, when made in regard to past debts or transactions of the firm, but not so as to create new contracts or obligations ( Gay v. Bowen, 8 Met. 100 ; Buxton v. Edwards, 134 Mass. 567, 579 ; Hinkley v. Gilligan, 34 Me. 101 ; Rich v. Flanders, 39 N. H. 304, 339 ; cf. Feigley v. Whitaker, 22 O. St. 606 ; Davis v. Poland, 92 Ya. 225) ; and they are also competent in some States to arrest and start anew the running of the Statute of Limitations as to a partnership debt which is not yet barred {Merrill v. Day, 38 N. J. L. 32 ; Bissell v. Adams, 35 Ct. 299 ; McClurg v. Howard, 45 Mo. 365). But in New York ad- missions by one as to dealings of the firm before dissolution are not competent against the others, nor will his admissions affect the run- ning of the Statute of Limitations except as to himself {Bakers. Stackpole, 9 Cow. 420 ; Van Keuren v. Parmelee, supra) ; though if Chap. IV.] THE LAW OF EVIDENCE. 67 Barristers and solicitors are the agents of their clients for the purpose of making admissions whilst engaged in the actual management of the cause, either in court or in correspondence relating thereto ; but statements made one is authorized to act as agent in the business of winding up, the declarations which he makes in the course of his agency are com- petent against all {Nichols v. White, 85 N. Y. 531). When a partner retires, the remaining members cannot bind him by their admissions (Pringle v. Lev e rich, 97 N. Y. 181). Some other States have adopted similar rules {Bell v. Morrison, 1 Pet. 351 ; Cronkhite v. Herrin, 15 F. R. 888 ; Wilson v. Waugh, 101 Pa. 233 ; Gates v. Fisk, 45 Mich. 522 ; Conkey v. Barbour, 22 Ind. 196 ; Nat. Bk. of Commerce v. Header, 40 Minn. 325 ; Maxey v. Strong, 53 Miss. 280 ; see Parsons on Partnership, pp. 184-197). As respects creditors who have had dealings with the firm but to whom no notice of dissolution has been given, part payments by one partner after dissolution will prevent the bar of the Statute of Limitations as to the other partners {Davison v. Sherburne, 57 Minn. 355 ; Buxton v. Edwards, 134 Mass. 355 ; Tappaii v. Kimball, 30 N. H. 136 ; Gates v. Fisk, 45 Mich. 522). So in some States the admissions of one joint debtor or contractor are received against the others, and will also arrest and start anew the running of the Statute of Limitations as respects all, except so far as the statutes cited below (see p. 69, note 2) modify this rule {Dennie v. Williams, 135 Mass. 28 ; Shepley v. Waterhouse, 22 Me. 497; Clark v. Sigourney, 17 Ct. 510; Woonsocket Inst.v. Ballou, 16 R. I. 351 ; Schindel v. Gates, 46 Md. 604 ; Block v. Dorman, 51 Mo. 31 ; see Parker v. Butterworth, 46 N. J. L. 244). In other States a con- trary or modified doctrine is held {Campbell v. Brown, 86 N. C. 376 ; see Kallenbach v. Dickinson, 100 111: 427, which enumerates the States having the diverse rules, and cites many leading cases). Thus it is held in a number of the States that one cannot bind the others so as to affect their defence that the claim is barred, but can only bind him- self {Shoemaker x. Benedict, 11 N. Y. 176 ; Bush v. Stowell, 71 Pa. 208 ; Clark v. Burn, 86 id. 502 ; Hance v. Hair, 25 O. St. 349 ; Willoughby v. Irish, 35 Minn. 63 ; Steele v. Souder, 20 Kan. 39 ; Miller v. Miller, 4 McArth. 109). In New York it is well settled that a joint debtor or joint contractor has no authority to bind his associate, unless he is the agent or in some other way the representative of such person (IVallisv. Randall, 81 N. Y. 164 ; Lewis v. Woodworth, 2 N. Y. 512 ; McMullen v. Rafferty, 89 N. Y. 456 ; see Rogers v. Anderson, 40 Mich. 290). The rule in any State as to joint debtors ;s much the A DIGEST OF [Part I. by a barrister or solicitor on other occasions are not ad- missions merely because they would be admissions if made by the client himself. 1 same as to partners after dissolution ; so, also, it is held in most States that the admissions of one such partner or debtor, made after the claim is already barred, will not revive it against the others. New- man v. McComas, 43 Md. 70 ; Parker v. Butterworth, 46 N. J. L. 244 ; Harris v. Odeal, 39 Mo. App. 270 ; Davis v. Polatid, 92 Va. 225 ; Bates on Partnership, ii. 703.] 1 [Illustrations (g) and (//). This rule is generally applicable in this country to attorneys and counsellors ; the admissions may be oral or written (Gr. Ev. i. § 186; Lewis v. Sumner, 13 Met. 269; Loomis v. N. Y. etc. R. Co., 159 Mass. 39 ; Ohlquest v. Farwell, ji la. 231 ; Isabel le v. Iron Cliffs Co., 57 Mich. 120; Nichols v. /ones, 32 Mo. App. 657; Ohio, etc. R. Co. v. Rooker, 134 Ind. 343 ; Oliver v. Bennett, 65 N. Y. 559; Rogers v. Greenwood, 14 Minn. 333), So the "stipulations" of attorneys in relation to the conduct of the cause are, in general, binding upon their clients [Bray v. Doheny, 39 Minn. 355 ; Garrett v. Hanshue, 53 O. St. 482; Ex parte Hayes, 92 Ala. 120; Townsendw. Mastcrson Co., 15 N. Y. 587) ; it is common practice to require that stipulations shall be in writing {State v. Stewart, 74 la. 336; People v. Stephens, 52 N. Y. 306). A plaintiff may be nonsuited on admissions contained in his attorney's opening speech (Oscanyan v. Arms Co., 103 U. S. 261 ; Person v. Wilcox, 19 Minn. 449 ; Clews v. N. Y. Banking Ass y n, 105 N. Y. 398 ; Evans v. Montgomery, 95 Mich. 497 ; cf. Converse v. Sickles, 146 N. Y. 200). As to unsolemn admissions, or those made in casual conversation, etc., which are not usually allowed to be proved against the client, see Rockwell v. Taylor, 41 Ct. 55 ; McKeen v. Gammon, 33 Me. 187 ; Douglass v. Mitchells Excr., 35 Pa. 441 ; Treadway v. S. C. etc. R. Co., 40 la. 526 ; Pickert v. Hair, 146 Mass. 1 ; Fay v. Hebbard, 42 Hun, 490. As to admissions made by an attorney on a former trial, or contained in the pleadings, see the cases cited in the preceding Article (p. 58, ante). An admission made by counsel may be withdrawn by permission of the court (Sullivan v. Eddy, 154 111. 199). In this country it is the general rule that an at- torney cannot compromise or settle a suit without his client's consent (Mandeville v. Reynolds, 68 N. Y. 528; Dalton v. West End, etc. R. Co., 159 Mass. 221 ; State v. Clifford, 124 Mo. 492 ; Eaton v.Knowles, 61 Mich. 625 ; Brockley v. Brockley, 122 Pa. 1 ; Wethcrbce v. Fitch, 117 III.67). Sometimes, however, an attorney's compromise, if fair and reasonable, has been sustained, though made without such con- sent ( Whipple v. Whitman, 13 R. I. 512). English law allows counsel Chap. IV.] THE LAW OF EVIDENCE. 69 The fact that two persons have a common interest in the same subject-matter does not entitle them to make admissions respecting it as against each other. 1 In cases in which actions founded on a simple contract have been barred by the Statute of Limitations no joint contractor or his personal representative loses the benefit of such statute, by reason only of any written acknowledg- ment or promise made or signed by (or by the agent duly authorized to make such acknowledgment or promise of) any other or others of them (or by reason only of payment of any principal, interest, or other money, by any other or others of them). 2 to make compromises. Mathews v. Munster, 20 Q. B.D. 141; Lewis s v. Lewis, 45 Ch. D. 281.] 1 [Illustration (z). Gr. Ev. i. § 176. Thus the admission of one ex- ecutor or administrator is not competent against his co-executor or co-administrator to establish a demand against the estate of the deceased, nor is it receivable against heirs or devisees {Church v. Howard, 79 N. Y. 415, 418 ; Davis v. Gallagher, 124 N. Y. 487) ; nor the admission of one devisee or legatee against another {Clark v. Morrison, 25 Pa. 453 ; La Ban v. Vanderbilt, 3 Redf. 384 ; McMillan v. McDill, no 111. 47; Shailerv. Buinstead, 99 Mass. 112, 127); nor of one tenant in common against another {Dan v. Brown, 4 Cow. 483 ; Pier v. Dttff, 63 Pa. 59) ; nor, generally, of one defendant in a tort action against another, unless made as part of the res gestae, as in con- spiracy {Carpenter v. Shelden, 5 Sandf. 77; Wilson v. O' Day, 5 Daly, 354; cf. Edgerton v. Wolf, 6 Gray, 453 ; see Art. 4). As to the admis- sions of a cestui que trust, see Warren v. Carey, 145 Mass. 78.] 2 9 Geo. IV. c. 14, s. 1. The first set of words in parenthesis was added by 19 & 20 Vict. c. 97, s. 13 ; the second set by s. 14 of the same Act. The language is slightly altered. [Similar statutes have been passed in several States of this country (Mass. Pub. St. c. 197, s. 17; N. J. Rev., p. 595, s. 10; Maine Rev. St. c. 82, ss. 98, 100; Faulkner v. Bailey, 123 Mass. 588 ; Bailey v. Corliss, 51 Vt. 366 ; Gates v. Fisk, 45 Mich. 522 ; Bottles v. Miller, wz Ind. 584 ; Nat. Bk.of ' Delavan v. Cotton, 53 Wis. 31). In New York and some other States a similar common law rule prevails ; but in a number of the States the con- trary rule of the English common law prevails, which was estab- lished by Whitcombv. Whiting. See pp. 66-68, ante, note; also Illus- tration (/), post.] 70 A DIGEST OF [Part I. A principal, as such, is not the agent of his surety for the purpose of making admissions as to the matters for which the surety gives security. 1 Illustrations. (a) The question is, whether a parcel, for the loss of which a rail- way company is sued, was stolen by one of their servants. State- ments made by the station master to a police officer, suggesting that the parcel had been stolen by a porter, are deemed to be relevant, as against the railway, as admissions by an agent. 2 (ab) [In an action against a railroad company for an injury sustained by plaintiff from a collision of trains caused by a misplaced switch, the statements of a brakeman, made after the disaster, that he opened the switch, were offered in evidence against the company. They were held not admissible, not having been made as part of the res gesto?.] 3 (b) A allows his wife to carry on the business of his shop in his ab- sence. A statement by her that he owes money for goods supplied to the shop is deemed to be relevant against him as an admission by an agent. 4 (c) A sends his servant, B, to sell a horse. What B says at the time of the sale, and as part of the contract of sale, is deemed to be a relevant fact as against A, but what B says upon the subject at some different time is not deemed to be relevant as against A, 5 (though it might have been deemed to be relevant if said by A himself). 1 [Illustration (J). Gr. Ev. i. § 187 ; Hatch v. Elkins, 65 N. Y. 489 ; Rae v. Beach, 76 N. Y. 164 ; Wells v. Kavanagh, 70 la. 519 ; Lewis v. Lee Co., 73 Ala. 148 ; Chelmsford Co. v. Demarest, 7 Gray, 1. But declarations of the principal are admissible when forming part of the res gestw. Id. ; Bank of Brighton v. Smith, 12 Allen, 243 ; see Agri- cultural Ins. Co. v. Keeler, 44 Ct. 161 ; Bissell v. Saxton, 66 N. Y. 55.] • Kirkstall Brewery v. Furness Ry., L. R. 9 Q. B. 468. [See Green v. />'. &* I. B. Co., 128 Mass. 221 ; B. &> AI. R. Co. v. Ordway, 140 Mass. 510 ; Atchison, etc. R. Co. v. Wilkinson, 55 Kan. 83 ; B. il~- O. R. Co. v. Campbell, 36 O. St. 647 ; Steamboat Co. v. Brockett, 121 U. S. 637 ; cf. Hoag v. Lamonf, 60 X. Y. 96.] 3 [Patterson v. Wabash, etc. R. Co., 54 Mich. 91 ; see Art. 3, Illustra- tion ica), ante.] 4 Clifford v. Burton, 1 Bing. 199; [Riley v. Suydam, 4 Barb. 222; sec Stale v. Lemon, 92 N. C. 790.] 5 Hclycar v. Ilawkc, 5 Esp. 72 ; [see Wait v. Borne, 123 N. Y. 592.] Chap. IV.] THE LAW OF EVIDENCE. 71 (d) The question is, whether a ship remained at a port for an un- reasonable time. Letters from the plaintiff's agent to the plaintiff containing statements which would have been admissions if made by the plaintiff himself are deemed to be irrelevant as against him. 1 (i, 6j Yt. 365 ; cf. Sparfv. U. S., 156 U. S. 51) ; and the same rule applies even though the arrest be illegal (Balbo v. People, 80 N. Y. 484). The fact that confessions are made under actual fear does not make them involuntary, if this fear were not excited by inducements or threats of the kind which this Article describes (Comm. v. Smith, 119 Mass. 305). So the hope of immunity (no promise of immunity having been made) will not render a confession inadmissible (State v. Griffin, 48 La. Ann. 1409 ; Comm. v. Sego, 125 Mass. 210, 213). If an accomplice agrees to turn State's evidence, upon a promise that he shall not be prosecuted, and thereupon makes a confession but afterwards refuses to testify, his confession maybe proved against Chap. IV.] THE LAW OF EVIDENCE. 79 . : . , * A confession is not involuntary, only because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, 1 or by an inducement collateral to the proceeding, 2 or by in- ducements held out by a person not in authority. 3 him (Comm. v. Knapp, 10 Pick. 477 ; U. S. v. Hinz, 35 F. R. 272 ; State v. Moran, 15 Or. 262 ; but see Neeley v. State, 27 Tex. App. 324). In some States these common law rules are changed by statute. Thus in New York it is now provided that a confession, whether made in judicial proceedings or to a private person, can be given in evi- dence, unless made under the influence of fear produced by threats, or upon a stipulation of the district attorney not to prosecute therefor ; but there must be additional proof of the commission of the crime to warrant conviction (Code Cr. Pro. §395; People v. McCallan, 103 N. Y. 588 ; People v. Deacons, 109 N. Y. 374 ; cf. Benson v. State, 119 Ind. 488). But cases decided in New York before this statute are cited herein, since they well illustrate the common law rule.] 1 [Illustration (b) ; cf. Comm. v. Drake, 15 Mass. 161.] 2 [Illustration (c) ; State v. Tatro, 50 Vt. 483 ; People v. Cox, 80 N. Y. 501 ; State v. Wentworth, yj N. H. 196 ; State v. Hopkirk, 84 Mo. 278 ; Stone v. State, 105 Ala. 60, 69.] 3 [It is also the general rule in this country that confessions obtained by the inducements of favor or threats of harm, held out by a person twt in authority as respects the prosecution, are admissible ( U. S. v. Stone, 8 F. R. 232 ; Smith v. Comm., 10 Gratt. 734 ; Shifflet v. Comm., 14 Id. 652 ; Young v. Comm., 8 Bush (Ky.), 366; State v. Holden, 42 Minn. 350; State v. Morgan, 35 W. Va. 260; State v. Patterson, 73 Mo. 695 ; cf. Ulrich v. People, 39 Mich. 245 ; State v. Potter, 18 Ct. 166 ; see next note). Promises or threats made by a third person in the presence of one in authority and with his apparent sanction may, however, be regarded as made by the person in authority (Id.). But in a few States confessions are excluded which are obtained by threats of harm or promises of favor held out by any one connected with the prosecution, or by a person who may be fairly supposed by the accused to have power to secure the benefit promised or the harm threatened {Murphy v. State, 63 Ala. 1 ; Spears v. State, 2 O. St. 583 ; Miller v. State, 94 Ga. 1, 12; Beggarly v. State, 8 Baxt. 520; cf. Comm. v. Tuckerman, 10 Gray, 173, 190 ; Gregg v. State, 106 Ala. 44 ; People v. Wolcott, 51 Mich. 612). Moreover, confessions extorted by mob violence, or by like forcible means, are excluded, though the persons using such means have no authority as respects the prosecution. Mil- 80 A DIGEST OF [Part I. • ; The prosecutor, officers of justice having the prisoner in custody, magistrates, and other persons in similar positions, are persons in authority. 1 The master of the prisoner is not as such a person in authority, if the crime of which the person making the confession is accused was not committed against him. 2 A confession is deemed to be voluntary if (in the opinion of the judge) it is shown to have been made after the complete removal of the impression produced by any inducement, threat, or promise which would otherwise render it involuntary. 3 Facts discovered in consequence of confessions im- properly obtained, and so much of such confessions as distinctly relate to such facts, may be proved. 4 Illustrations, (a) The question is, whether A murdered B. A handbill issued by the Secretary of State, promising a reward and pardon to any accomplice who would confess, is brought to the ler v. People, 39 111. 457 ; Young v. State, 68 Ala. 569 ; Williams v. State, 72 Miss. 117 ; State v. Resells, 34 La. Ann. 381.] 1 [People v. Ward, 15 Wend. 231 ; Wolf v. Comm., 30 Gratt. 833; State v. Brock?nan, 46 Mo. 566 ; Rector v. Comm., 80 Ky. 468 ; U. S. v. Pocklington, 2 Cr. C. C. 293 ; State v. Staley, 14 Minn. 105 ; and cases cited in last note and in note 1, on p. 78. A private detective has been held not to be a person in authority. Early v. Comm., 86 Ya. 921 ; U. S. v. Stone, 8 F. R. 232.] 2 [Smith v. Comm., 10 Gratt. 734 ; cf. Comm. v. Sego, 125 Mass. 210.] 3 [The removal of the impression must be complete. Illustration (e)\ Ward v. People, 3 Hill, 395 ; Comm. v. Howe, 132 Mass. 250 ; Thomp- son v. Comm., 20 Gratt. 724 ; Stale v. Brown, 73 Mo. 631 ; Rizzolo v. Comm., 126 Pa. 54; cf. Comm. v. Cullen, m Mass. 435; People v. Barker, 60 Mich. 277.] 4 [Illustration (/) ; Duffy v. People, 26 N. Y. 588 ; People v. Hoy Yen, 34 Cal. 176 ; Comm. v. James, 99 Mass. 438 ; Pressley v. State, 1 1 1 Ala. 34; State v. Winston, 116 N. C. 990; State v. Mortimer, 20 Kan. 93; Laros v. Comm., 84 Pa. 200; see Murphy v. People, 63 N. Y. 590. Some of these cases seem to adopt a more restricted rule than that of Chap. IV.] THE LAW OF EVIDENCE. 81 knowledge of A, who, under the influence of the hope of pardon, makes a confession. This confession is not voluntary. 1 (aa) [A, having been committed to jail on a charge of murder, the I / committing magistrate visits him and tells him that " it would be I I better for him to tell the truth and have no more trouble about it." i ! ; He also tells A that he can make him no promises. Thereupon A/ i makes a confession. The confession is not voluntary, and is therefore ^inadmissible.] 2 (ad) [A, in prison on a charge of murder, sent for the sheriff to come and see him and asked the sheriff if it would be best to tell the truth about it. The sheriff replied that it was always best for him, or for any one else, to tell the truth about anything. The sheriff also said, " If you are going to tell the straight truth, I will listen to it and want to hear it ; and if you are not going to tell the truth, I don't want to hear it." A then made a confession. The confession is voluntary.] 3 (ac) [A, a boy fourteen years old, was arrested by two police officers on a charge of murder. Having searched him, stripped him of his clothing, and put him in a cell, they took him out of the cell at night and questioned him for two hours, without warning him of his right not to answer, or offering him opportunity to consult friends or counsel. Answers made by him tending to show his guilt were deemed volun- tary confessions, as the officers had made no promises of favor or threats of harm.] 4 (b) A being charged with the murder of B, the chaplain of the gaol reads the Commination Service to A, and exhorts him upon religious grounds to confess his sins. A, in consequence, makes a confession. This confession is voluntary. 5 the text, as to admitting proof of words of confession, though they all hold that the " facts discovered " may be proved.] 1 R. v. Boswell, C. & M. 584. ^[Biscoe v. State, 67 Md. 6; S. P. Comm. v. Nott, 135 Mass. 269; Comm.' v. Myers, 160 Mass. 530; People v. Phillips, 42 N. Y. 200; State v. Walker, 34 Vt. 296; State v. York, 37 N. H. 175 ; People v. Thompson, 84 Cal. 598.] 3 \Maull v. State, 95 Ala. 1 ; cf. Comm. v. Morey, 1 Gray, 461 ; Heldt v. State, 20 Neb. 492.] 4 [Comm. v. Ciiffee, 108 Mass. 285.] 5 R. v. Gilham, 1 Moo. C. C. 186. In this case the exhortation was that the accused man should confess "to God," but it seems from parts of the case that he was urged also to confess to man " to repair any injury done to the laws of his country." According to the practice at 82 A DIGEST OF [Part I. (c) The gaoler promises to allow A, who is accused of a crime, to see his wife, if he will tell where the property is. A does so. This is a voluntary confession.' (d) A is accused of child murder. Her mistress holds out an in- ducement to her to confess, and she makes a confession. This is a voluntary confession, because her mistress is not a person in au- thority. 2 (e) A is accused of the murder of B. C, a magistrate, tries to induce A to confess by promising to try to get him a pardon if he does so. The Secretary of State informs C that no pardon can be granted, and this is communicated to A. After that A makes a statement. This is a voluntary confession. 3 (/) A, accused of burglary, makes a confession to a policeman under an inducement which prevents it from being voluntary. Part of it is that A had thrown a lantern into a certain pond. The fact that he said so, and that the lantern was found in the pond in consequence, may be proved. 4 Article 23.* confessions made upon oath, etc. Evidence amounting to a confession may be used as such against the person who gives it, although it was given upon oath, and although the proceeding in which it was given had reference to the same subject-matter as the proceeding in which it is to be proved, and although the witness might have refused to answer the questions * See Note XVI. [Appendix], that time, no reasons are given for the judgment. The principle seems to be that a man is not likely to tell a falsehood in such cases from religious motives. The case is sometimes cited as an authority for the proposition that a clergyman may be compelled to reveal confessions made to him professionally. It has nothing to do with the subject. 1 R. v. Lloyd, 6 C. & P. 393. 2 R. v. Moore, 2 Den. C. C. 522. 3 R. v. Clewes, 4 C. & P. 221. 4 R. v. Gould, 9 C. & P. 364. This is not consistent, so far as the proof of the words goes, with A', v. Warwickshall, 1 Leach, 265. Chap. IV.] THE LAW OF EVIDENCE. 83 put to him ; l but if, after refusing to answer any such question, the witness is improperly compelled to answer it, his answer is not a voluntary confession. 2 Illustrations. (a) The answers given by a bankrupt in his examination may be used against him in a prosecution for offences against the law of bankruptcy. 3 (b) A is charged with maliciously wounding B. Before the magistrates A appeared as a witness for C, who was charged with the same offence. A's deposition may be used against him on his own trial. 4 (ba) [A is tried for burglary. On a former trial of the same case A voluntarily became a witness in his own behalf. Answers given 1 [Comm. v. Bradford, 126 Mass. 42 ; State v. Glahn, 97 Mo. 679; People v. Mitchell, 94 Cal. 550 ; State v. Witham, 72 Me. 531. On the trial of a person for crime, testimony voluntarily given by him under oath in a prior action or proceeding, and amounting to a confession, is receivable {Dickerson v. State, 48 Wis. 288 ; Alston v. State, 41 Tex. 39). So confessions contained in a voluntary affidavit are admissible (Behlerv. Stale, 112 Ind. 140). But it is provided in some States by statute that on the preliminary examination of a prisoner before a committing magistrate, he shall not be put under oath ; if, therefore, he is compelled to take an oath and then makes a confession, such confession is inadmissible (Gr. Ev. i. §§224-229; N. Y. Code Cr. Pro. § 198 ; Hendrickson v. People, 10 N. Y. 9, 27, 30; People v. Motidon, 103 N. Y. 21 1 ; Comm. v. Harman, 4 Pa. 269; N. C. Code, §1145; State v. Matthews, 66 N. C. 106; see Wilson v. U. S., 162 U. S. 613, 623; U. S. v. Duffy, 1 Cr. C. C. 164; People v. Kelley, 47 Cal. 125). In other States he may, at his own option, testify under oath at such an exami- nation ; if, therefore, he does so testify and makes confessions, they are admissible against him on his subsequent trial. State v. Glass, 50 Wis. 218 ; Jackson v. State, 39 O. St. 37 ; State v. Miller, 35 Kan. 328; cf. Comm. v. Clark, 130 Pa. 641.] ' 2 R. v. Garbett, 1 Den. C. C. 236. See also R. v. Owen, 20 Q. B. D. 829, as explained in R. v. Paul, 25 Q. B. D. 202. [Gr. Ev. i. § 451 ; ffendricksofi v. People, 10 N. Y. 9, 27, 31 ; see Art. 120, note, post.] 3 R. v. Scott, 1 D. & B. 47; R. v. Robinson, L. R. 1 C. C. R. 80; R. v. Widdop, L. R. 2 C. C. R. 5. [So as to testimony before a fire inquest. Comm. v. Wesley, 166 Mass. 248.] 4 R. v. Chidley &* Cummins, 8 Cox, 365 ; [see People v. Thayer, 1 Park. Cr. 595.] 84 A DIGEST OF [Part I. by him upon cross-examination on this former trial, and tending to show his guilt, may be proved against him.] ' (e) [A is tried for the murder of B. Statements made by A under oath at the coroner's inquest upon he body of B are competent evidence against him, though he knew •vhen he made the statements that he was suspected of the crime;' 2 out not, if at the time he was under arrest for the crime, and was taken before the coroner and put under oath without his own consent or request.] 3 Article 24. confession made under a promise of secrecy. If a confession is otherwise relevant, it does not become irrelevant, merely because it was made under a promise of secrecy, 4 or in consequence of a deception practised on the accused person for the purpose of obtaining it, 5 or 1 [State v. Eddings, 71 Mo. 545.] ^[Teachout v. People, 41 N. Y. 7 ; State v. Gilman, 51 Me. 206; People v. Martinez, 66 Cal. 278 ; Wilson v. State, 1 10 Ala. 1 ; Newton v. State, 21 Fla. 53; see Williams v. Cotnm., 29 Pa. 102; State v. Coffee, 56 Ct. 399 ; Mack v. State, 48 Wis. 271 ; State v. Taylor, 36 Kan. 329. Some States, however, exclude confessions made under such circumstances. State v. Young, 119 Mo. 495; State v. Senn, 32 S. Car. 392 ; Wood v. State, 22 Tex. App. 431 ; State v. Hobbs, 37 W. Va. 812.] 3 [People v. Mofidon, 103 N. Y. 21 1 ; Parkas v. State, 60 Miss. 847 ; Lyons v. People, 137 111. 602. So as to statements made before the grand jury by the prisoner while under arrest (Stale v. Clifford, 86 la. 550). If, however, a prisoner voluntarily appears before a coroner and testifies under oath, confessions so made are provable against him. Id. ; People v. Chapleau, 121 N. Y. 266 ; see State v. Wisdom, 119 Mo. 539.] 4 [Stale v. Squires, 48 N. H. 364.] 5 [Illustration (a); People v. Wentz, 37 N. Y. 303, 305, 306; Pricev. State, 18 O. St. 418; State v. Phelps, 7 4 Mo. 128; Hardy v. United States, 3 App. U. C. 35 ; Stone v. State, 105 Ala. 60; Wigginton v. Cotnm., 92 Ky. 282; Stale v. Staley, 14 Minn. 105. Hope of immunity aroused by taking advantage of the prisoner's superstition does not exclude his contession. Slate v. Harrison, 115 N. C. 707 ] Chap. IV.] THE LAW OF EVIDENCE. 85 when he was drunk, 1 or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, 2 or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. 3 Illustration, (a) [A is indicted for the murder of B. A detective, with the con- nivance of the prosecuting attorney, has himself arrested and indicted on a fictitious charge of forgery, and, while imprisoned in jail on this charge, ingratiates himself in the confidence of A, and by this means obtains confessions from the latter as to the murder of B. These confessions may be proved against A.] 4 1 [Comm. v. Howe, 9 Gray, no; Jefferds v. People, 5 Park. Cr. 522; People v. Fox, 121 N. Y. 449 ; State v. Grear, 28 Minn. 426 ; People v. Ramirez, 56 Cal. 533; State v. Feltes, 51 la. 495; Williams v. Stale, 12 Lea, 211; White v. State, 32 Tex. App. 625; Eskridge v. State, 25 Ala. 30. The intoxication affects the credibility, not the competency, of the evidence ; if it be extreme, the jury may give the confession little or no weight (Id.). Words spoken in sleep are not admissible as a confession {People v. Robinson, 19 Cal. 41) ; but where it was doubtful whether the accused was asleep or awake, his words were allowed to go to the jury (State v. Morgan, 35 W. Va. 260). A con- fession made by a prisoner in a prayer that was overheard was allowed to be proved. Woolfolk v. State, 85 Ga. 69, 101.] ^[People v. IVentz, 37 N. Y. 303, 306 ; Comm. v. Cuffee, 108 Mass. 285.] 3 Cases collected and referred to in 1 Ph. Ev. 420, and T. E. s. 804. See, too, Joy, ss. iii., iv., v. [ Wilson v. United States, 162 U. S. 613, 623 ; Comm. v. Cuffee, 108 Mass. 285. Such a warning is, however, sometimes given, though not required, and is important evidence, tending to show that the confession was voluntary (State v. Gilman, 51 Me. 206; People v. Simpson, 48 Mich. 474; People v. Chapleau, 121 N. Y. 266) ; and sometimes, upon a preliminary examination before a committing magistrate, it is required by statute. N. Y. Code Cr. Pro. § 196 ; N. C. Code, § 1 146 ; State V. Rogers, 112 N. C, 874 ; State v. Hatcher, 29 Or. 309 ; Coffee v. State, 25 Fla. 501 ; Salas v. State, 31 Tex. App. 485.] 4 [State v. Brooks, 92 Mo. 542; Burton v. State, 107 Ala 108; Heldt v. State, 20 Neb. 492.] 86 A DIGEST OF [Part I. Article 25. statements by deceased persons, when deemed to be relevant. Statements, written or oral, of facts in issue or rele- vant or deemed to be relevant to the issue are deemed to be relevant, if the person who made the statement is dead, in the cases, and on the conditions, specified in Articles 26-31, both inclusive. 1 In each of those Articles the word " declaration " means such a statement as is herein mentioned, and the word " declarant " means a dead person by whom such a statement was made in his lifetime. Article 26.* dying declaration as to cause of death. A declaration made by the declarant as to the cause of his death, or as to any of the circumstances of the trans- action which resulted in his death, 2 is deemed to be relevant * See Note XVII. [Appendix]. 1 [See Putnam v. Fisher, 52 Vt. 191.] 2 [Gr. Ev. i. § 156 ; State v. Mace, 118 N. C. 1244 ; Sullivan v. State, 102 Ala. 135. But such declarations are not competent evidence of prior or subsequent occurrences, as e. g., of antecedent threats {State v. Wood, 53 Vt. 560 ; Hackett v. People, 54 Barb. 370 ; Jones v. State, 71 Ind. 66 ; People v. Fong Ah Sing, 64 Cal. 253), nor of matters of opinion, but only of facts to which declarant would be competent to testify as a witness (Gr. Ev. i. § 159; Boyle v. State, 105 Ind. 469; People v. Lanagan, 81 Cal. 142 ; State v. Baldwin, 79 la. 714 ; State v. Chambers, 87 Mo. 406 ; People v. Shaw, 3 Hun, 272, 63 N. Y. 36). Dying declarations are admissible in favor of the defendant, as well as against him {Mattox v. U. S., 146 U. S. 140 ; People v. Knapp, 26 Mich. 112; but see Moeck v. People, 100 111. 242). Though made in answer to leading questions, or obtained by solicitation, or expressed by signs instead of words, they are still competent evidence {Maine v. People, 9 Hun, 113; Comm. v. Casey, 11 Cush. 417 ; State v. Foot You, 24 Or. 61 ; Jones v. State, 71 Ind. 66). The constitutional pro- vision that the accused shall be; confronted with the witnesses atrainst I Chap. IV.] THE LAW OF EVIDENCE. 87 only in trials for the murder or manslaughter of the declarant ; ' and only when the declarant is shown, to the satisfaction of the judge, 2 to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. 3 him does not exclude evidence of dying declarations. Brown v. Comm., 73 Pa. 321, 328; State v. Dickinson, 41 Wis. 299 ; Comm.v. Carey, 12 Cush. 246 ; Robbins v. State, 8 0. St. 131.] 1 [People v. Davis, 56 N. Y. 95 ; Kilpatrick v. Comm., 31 Pa. 198 ; Scott v. People, 63 111. 508 ; Puryear v. Comm., 83 Va. 15 ; and other cases under this Article. Thus such evidence is not received in civil actions {Wilson v.Boerem, 15 Johns. 286; Thayer v. Lombard, 165 Mass. 174 ; Hood v. Pioneer Co., 95 Ala. 461), and that too, though they be actions for injury causing death {Daily v. N. Y. etc. R. Co., 32 Ct. 356 ; Waldele v. N. Y. C. R. Co., 19 Hun, 69 ; Marshall v. Chicago, etc. R. Co., 48 111. 475) ; nor is it received in other criminal cases than those of homicide (Illustration (b); Johnson v. State, 50 Ala. 456). But sometimes these rules are changed by statute. See p. 90, note 2, post.] 2 [Gr. Ev. i. § 160 ; Slate v. Nocton, 121 Mo. 537 ; People v. Smith, 104 N. Y. 491 ; State v. Baldwin, 79 la. 714 ; Westbrook v. People, 126 111. 81. The person offering the declarations in evidence must show that they were made under the sense of impending death. This may be shown by the declarant's own statements, by his acts indicating a sense that death is near, and by other attendant circumstances (Illustrations (ab), [ac); Gr. Ev. i. § 158 ; People v. Simpson, 48 Mich. 474; Kehoev. Comm., 85 Pa. 127; Westbrook v. People, 126 111. 81 ; State v. Nelson, 101 Mo. 464 ; State v. Baldwin, 79 la. 714 ; State v. Swift, 57 Ct. 496). Thus the fact that he received extreme unction has been admitted in evidence as bearing upon this question {Carver v. United States, 164 U. S. 694). It is discretionary with the trial court whether this preliminary evidence shall be given in the presence of the jury. People v. Smith, 104 N. Y. 491 ; Doles v. State, 97 Ind. 555 ; State v. Furney, 41 Kan. 115 ; cf. North v. People, 139 111. 81.] 3 [Brotherton v. People, 75 N. Y. 159 ; Allison v. Comm., 99 Pa. 17 ; State v.Johnson, 118 Mo. 491 ; Simons v. People, 150 111. 66 ; Hale v. Comm., 89 Va. 171; Comm. v. Brewer, 164 Mass. 577; and cases supra. Even a faint hope of recovery excludes the declarations {People v. Gray, 61 Cal. 164 ; Comm. v. Roberts, 108 Mass. 296). If hope be expressed, but afterwards, when hope is gone, declarations are made, they are competent {Small \. Comm.,qi Pa. 304 ; Stale v. . A DIGEST OF [Part I. Such a declaration is not irrelevant merely because it was intended to be made as a deposition before a magis- trate, but is irregular.' Evans, 124 Mo. 397 ; Johnson v. State, 102 Ala. 1 ; Mockabee v. Comm., 78 Ky. 380 ; cf. Carver v. United States, 160 U. S. 553). And it has been held that declarations made when there was no hope are admissible, though the dying person lingered several days, and during this time expressed some hope {Swisher v. Comm., 26 Gratt. 963 ; State v. Kilgore, 70 Mo. 546 ; State v. Reed, 53 Kan. 767). It is not necessary that the declarant should die immediately. In one case he died fourteen days after making the statement (Jones v. State, 71 Ind. 66), in others, seventeen days (Comm. v. Cooper, 5 Allen, 495 ; Lowry v. State, 12 Lea, 142), and in one case, four months (State v. Craine, 120 N. C. 601). The sense of impending death is deemed equivalent to the sanction of an oath. Hence dying declarations made by persons disqualified to act as witnesses in court are not competent, as e. g., atheists (Don- nelly v. State, 26 N. J. L. 463 and 601) ; but aliter in States where their disability to testify has been removed (People v. Chin Mook Sow, 51 Cal. 597 ; State v. Elliott, 45 la. 486; see Art. 107, noie,post). So the declarations of very young children are not received (Gr. Ev. i. § 157), or of a person who would be incompetent as a witness from mental debility (Mitchell 'v. State, 71 Ga. 128, 146; cf. Comm. v. Slraesser, 153 Pa. 451). As to the contradiction of dying declarations, see Art. 135, fost. Though dying declarations are deemed to have a sanction equal to that of an oath, yet they are not of the same value and weight as the direct evidence of a witness subject to cross-examination. People v. Kraft, 148 N. Y. 631 ; cf. State v. Reed, 137 Mo. 125.] 1 {People v. Knapp, 1 Edm. Sel. Cas. 177. If the declarations be re- duced to writing by a bystander, but are not read over to the dying person, nor signed by him, parol evidence of the declarations is com- petent (Allison v. Comm., 99 Pa. 17 ; State v. Sullivan, 51 la. 142; Darby v. State, 92 Ala. 9); but the writing is not, though it may be used to refresh memory (State v. Fraunburg, 40 la. 555). So parol evidence was received when the memorandum was lost (State v. Patterson, 45 Yt. 308). Where the writing was read over to decedent and signed by him, it was held competent evidence, though it was not so taken as to constitute a deposition (State v. Kindle, 47 O. St. 358 ; People v. Bemmerly, 87 Cal. 117; Jones v. State, 71 Ind. 66); and where it was subscribed and sworn to by him, but was inadmissible as a deposition, its use to refresh recollection was held allowable (Comm. Chap. IV.] THE LAW OF EVIDENCE. 89 Illustrations. (a) The question is, whether A has murdered B. B makes a statement to the effect that A murdered him. B, at the time of making the statement, has no hope of recovery, though his doctor had such hopes, and B lives ten days after making the statement. The statement is deemed to be relevant. 1 B, at the time of making the statement (which is written down), says something, which is taken down thus : " I make the above statement with the fear of death before me, and with no hope of recovery." B, on the statement being read over, corrects this to " with no hope at present of my recovery." B dies thirteen hours afterwards. The statement is deemed to be irrelevant. 2 (ad) [A woman had been shot in the head, and the surgeon attending her had told her that she was liable to die at any moment ; that an operation which he would perform would be the only chance for her recovery. He asked her if she expected to get well, and she said ; " No, I do not expect to get well, but I would like to get well." She then said that A was the person who shot her. On the trial of A for murder, this statement was held inadmissible.] 3 (ac) [The question is, whether A has murdered B. B, having received a very dangerous wound in the neck, severing the jugular vein, raised the cry of " murder," and then, bleeding profusely, fell upon his bed. X, hearing the alarm, came quickly to the room, when B cried out that he had been stabbed, that he had been murdered, that his throat had been cut. X asked him who did it, and B answered: "A, your bookkeeper." B died about an hour and a v. Haney, 127 Mass. 455 ; cf. State v. Whitson, in N. C. 695). Some cases, however, have held that the writing, if signed by the decedent, is the primary evidence, and that unless the absence of the writing is accounted for, parol evidence will not be received (Gr. Ev. i. § 161 ; Boulden v. State, 102 Ala. 78 ; Turner v. State, 89 Tenn. 548 ; Say/or v. Comm., 97 Ky. 184). Oral declarations may be testified to by any one who heard and remembers them, and he is only required to state their substance {Comm. v. Haney, supra ; Montgomery v. State, n O. 424 ; Starkey v. People, 17 111. 17); but they must be substantially complete. Gr. Ev. i. § 159 ; State v. Patterson, 45 Vt. 308.] 1 R. v. Mosley, 1 Moo. C. C. 97 ; [cf . People v. Grunzig, 1 Park. Cr. 299.] 2 R. v. Jenkins, L. R. 1 C. C. R. 187 ; [cf. People v. Evans, 40 Hun, 492 ; People v. Hodgdon, 55 Cal. 72 ; Jackson v. Comm., 19 Gratt. 656.] 3 [Peak v. Stale, 50 N. J. L. 179 ; cf. Young v. State, 95 Ala. 4.] 90 A DIGEST OF [Part I. half afterwards. On the trial of A it was held that X might testify to this statement made by B.] ' (/>) The question is, whether A administered drugs to a woman with intent to procure abortion. The woman makes a statement which would have been admissible had A been on his trial for murder. The statement is deemed to be irrelevant. 2 (c) The question is, whether A murdered B. A dying declaration by C that he (C) murdered B is deemed to be irrelevant. 3 (d) The question is, whether A murdered B. B makes a statement before a magistrate on oath, and makes her mark to it, and the magistrate signs it, but not in the presence of A, so that her statement was not a deposition within the statute then in force. B, at the time when the statement was made, was in a dying state, and had no hope of recovery. The statement is deemed to be relevant. 4 } ^ Article 27.* j5eclarations made in the course of business or profes- sional duty. A declaration is deemed to be relevant when it was made by the declarant in the ordinary course of business, and in the discharge of professional duty, 6 at or near the *See Note XVIII. [Appendix]. 1 {Donnelly v. State, 26 N. J. L. 463 and 601.] "> R. v. Hind, Bell, 253, following R. v. Hutchinson, 2 B. & C. 608, n., quoted in a note to 7?. v. Mead. [People v. Davis, 56 N. Y. 95 ; State v. Harper, 35 O. St. 78 ; Railing v. Coinm., no Pa. 100. Aliter, upon a trial for murder or manslaughter, caused by an attempt to procure an abortion {State v. Dickinson, 41 Wis. 299 ; State v. Leeper, 70 la. 748 ; cf. Montgo)nery v. State, 80 Ind. 338). Now, however, in some States, by statute, dying declarations of the woman are admissible in a trial for an attempt to procure an abortion. N. Y. Rev. St. (Birdseye's 2d ed.) i. 6; Laws of Mass. of 1889, c. 100; Comm. v. Bishop, 165 Mass. 148.] 3 Gray's Case, Ir. Cir. Rep. 76 ; [People v. Hall, 94 Cal. 595 ; Davis v. Comm., 95 Ky. 19 ; West v. State, 76 Ala. 98.] 4 R. v. Woodcock, 1 East, P. C. 356. In this case, Eyre, C. B., is said to have left to the jury the question, whether the deceased was not in fact under the apprehension of death. 1 Leach, 504. The case was decided in 1789. It is now settled that the question is for the judge. 5 Doe v. Turford, 3 B. & Ad. 890. [Gr. Ev. i. §§115-120; Chaffee v. U. S„ 18 Wall. 516; Fisher v. Mayor, 67 N. Y. 73, jj ; Skipworth v. Deyell, 83 Hun, 307 ; Kennedy v. Doyle, 10 Allen, 161 ; Wheeler v. Chap. IV.] THE LAW OF EVIDENCE. 9 i time when the matter stated occurred, and of his own knowledge. 1 Walker, 45 N. H. 355; Macomb v. Wilkinson, 83 Mich. 486; Reynolds v. Simmer, 126 111. 58; Culver v. Marks, 122 Ind. 554; Sands v. Ham- mell, 108 Ala. 624; Laird v. Campbell, 100 Pa. 159; State v. PJiair, 48 Vt. 366. Thus the books or registers of a deceased notary are admis- sible to prove his acts as to the presentment, demand, and notice of non-payment of negotiable paper (Halliday v. Martinet, 20 Johns. 168 ; Porter v. Judson, 1 Gray, 175 ; Nicholls v. Webb, 8 Wheat. 326 ; see N. Y. Code Civ. Pro. §§ 924, 962) ; and so as to entries of the deceased clerk of a notary (Gawtry v. Doane, 51 N. Y. 84). So entries made by merchants' clerks, bank tellers or messengers, or by other persons, as attorneys, physicians, etc., in the ordinary course of busi- ness and of professional duty as part of the res gestce, are competent after their death (Leland v. Cameron, 31 N. Y. 115 ; Johnson v. Cow- drey, 19 N. Y. S. 678 ; Sheldon v. Benham, 4 Hill, 129 ; Anns v. Middleton, 23 Barb. 571 ; Hedrick v. Hughes, 15 Wall. 123). In some States such evidence is admissible though the book entries may have been in favor of the person making them (Lassone v. Boston, etc. R. Co., 66 N. H. 345 ; Augusta v. Windsor, 19 Me. 317 ; cf. Donovan v. Boston, etc. R. Co., 158 Mass. 450). The handwriting of the deceased person should be proved (Chaffee v. U. S., 18 Wall. 516 ; Hoover v. Gehr, 62 Pa. 136 ; Chenango Bridge Co. v. Lewis, 63 Barb. 11 1). In some States such evidence is also admitted if the person making the entries has become insane (Union Bk. v. Knapp, 3 Pick. 96), or has gone to parts unknown (New Haven, etc. Co. v. Goodwin, 42 Ct. 230 ; Reynolds v. Manning, 15 Md. 510 ; see Chaffee v. U. S., supra), or is out of the State (Heiskell v. Rollins, 82 Md. 14; McDonald v. C antes, 90 Ala. 147; Rigby v. Logan, 45 S. Car. 651 ; Bridgewater v. Roxbury, 54 Ct. 213 ; Hay v. Kramer, 2 W. & S. 137). In New York, however, if the clerk, etc., is out of the State, his deposition must be taken (Brewster v. Doane, 2 Hill, 537 ; Fisher v. Mayor, 67 N. Y. jt, ; but see Code Civ. Pro. §924). But it is a general rule that if he is alive and within the State, he should be made a witness and authenticate the entries (Ocean Bk. v. Carll, 55 N. Y. 440; Nelson v. Mayor of N. Y., 131 N. Y. 4 ; Bartholomew v. Farwell, 41 Ct. 107 ; Briggs v. Rafferty, 14 Gray, 525 ; House v. Beak, 141 111. 290). As to what is a sufficient authentication, see Bank of Monroe v. Culver, 2 Hill, 531 ; Moots v. State, 21 0. St. 653 ; Anderson v. Edwards, 123 Mass. 273. As to the admissibility of entries or memoranda, not made in the regu- lar course of business, see Art. 136, note ; Taylor v. Chicago, etc. R. Co., 80 la. 431.] 1 [It is a general rule in this country that entries made by a parly 92 A DIGEST OF [Part I. Such declarations are deemed to be irrelevant, except so far as they relate to the matter which -the declarant stated in the ordinary course of his business or duty, or himself in his own books of account, in the regular course of business, are admissible in his own favor, when properly authenticated, as evi- dence of goods sold and delivered, of services rendered, and some- times of other matters. But different modes of authentication are prescribed in different States. Thus in New York it must be shown by the party offering the books that they are the regular books of account ; that there had been regular dealings between the parties, resulting in more than a single charge ; that he kept no clerk ; that some of the articles charged have been delivered, or some items of service rendered ; and that other persons dealing with him have set- tled their accounts by his books and found them accurate ( Vosburgh v. Thayer, 12 Johns. 461 ; West v. Van Tuyl, 119 N. Y. 620 ; Dooley v. Moan, 57 Hun, 535). This rule also prevails in Illinois (House v. Beak, 141 111. 290). As to the meaning of "clerk " under the rule, see McGoldrick v. Traphagen, 88 N. Y. 334 ; Ativoodv. Barney, 80 Hun, 1 ; Smith v. Smith, 13 App. Div. (N. Y.) 207; as to a physician's books, see Knight v. Cunnington,6 Hun, 100 ; Davis v. Seaman, 64 Hun, 572. But such entries are not admissible to sustain a charge for money lent (Low v. Payne, 4 N. Y. 247), but only for sales and dealings in the ordinary course of business (Griesheimer v. Tanenbaum, 124 N. Y. 650) ; books or entries relating to cash items or dealings between the parties are not admissible (Smith v. Rents, 131 N. Y. 169). The fact that parties are now competent witnesses does not exclude their books as evidence (Stroud v. Tilton, 4 Abb. Dec. 324). Book entries by a party against his interest are relevant as admis- sions (Adams v. Olin, 61 Hun, 318 ; Griggs v. Day, 136 N. Y. 152). In many of the States the party's suppletory oath (or that of his ex- ecutor or administrator if the party be dead) is required to authenticate his own book entries which are in his own favor, but there are diverse rules as to the matters which may be proved by such entries. Gener- ally, however, they are received to prove items of work done and goods sold and delivered, when the entries have been made in the regular course of business (Pratt v. White, 132 Mass. 477 ; Kaiser v. Alex- ander, 144 Mass. 71 ; Oberg v. Brecn, 50 N. J. L. 145 ; Lyman v. Bechtel, 55 la. 437; Corrv. Sellers, 100 Pa. 169; Smith v. Law, 47 Ct. 431). As to the effect of making parties competent witnesses, see Nichols v. I lay ncs, 78 Pa. 174 ; Montague v. Dougan, 68 Mich. 98. The rules in the different States are stated in the note to Price v. Torrington, S. L. C. (Am. Ed.) (See Miller v. Shay, 145 Mass. 162 ; Chap. IV.] THE LAW OF EVIDENCE. 93 if they do not appear to be made by a person duly author- ized to make them. 1 Illustrations. (a) The question is, whether A delivered certain beer to B. The fact that a deceased drayman of A's, on the evening of the delivery, made an entry to that effect in a book kept for the purpose, in the ordinary course of business, is deemed to be relevant.' 2 Countryman v. Bunker, 10 1 Mich. 218 and note; Stallings v. Gotl- schalk, jy Md. 429 ; Hooper v. Taylor, 39 Me. 224 ; Anchor Milling Co. v. Walsh, 108 Mo. 277 ; White v. Whitney, 82 Cal. 163 ; Schettler v. Jones, 20 Wis. 433 ; Karr v. Stivers, 34 la. 123 ; Wells' Adm'r v. Ayers, 84 Va. 341.) The book to be produced in evidence is the book of original entries (Woolsey v. Bohn, 41 Minn. 235; Stetson v. Wolcott, 15 Gray, 545). If this be a ledger, it will be competent {Hoover v. Gehr, 62 Pa. 136 ; Swain v. Cheney, 41 N. H. 232 ; Faxon v. Hollis, 13 Mass. 427); but not where the ledger is used for posting entries originally made in another book ( Vilmarv. Schall, 3 J. & Sp. 67; Fitzgerald v. McCarty, 55 la. 702 ; Hustons Estate, 167 Pa. 217). Sometimes day-book and ledger are taken together as the book of original entries (McGoldrick v. Traphagen, 88 N. Y. 334 ; Bonnellv. Mawha, 37 N. J. L. 198). Sometimes entries or memoranda are first made upon a slate or paper, and afterwards transcribed into the regular account books. Where this is done on the same day or within two or three days, as a common business practice, the books are generally admitted in evidence {Stroud v. Tilton, 4 Abb. Dec. 324 ; McGoldrick v. Traph- agen, 88 N. Y. 334 ; Van Wie v. Loomis, jj Hun, 399 ; Nichols v. Vinson, 9 Houst. 274 ; Chishohn v. Beanian Co., 160 111. 101 ; Hoover v. Gehr, 62 Pa. 136; Barker v. Haskell, 9 Cush. 218). But sometimes they have been admitted after a much longer interval (Hall v. Glidden, 39 Me. 445, two to four weeks ; Redlich v. Bauerlee, 98 111. 134, four weeks). But in Forsythe v. Norcross, 5 Watts, 432, a six days' inter- val was held too long (cf. Rumsey v. N. Y. etc. Telephone Co., 49 N. J. L. 322). As to the mode of proof when the party is dead or insane, see Hoover v. Gehr, 62 Pa. 136 ; Pratt v. White, 132 Mass. 477 ; Hol- brook v. Gay, 6 Cush. 215.] 1 [Skipworth v. Deyell, 83 Hun, 307 ; Riley v. Boehm, 167 Mass. 183 ; Fulton's Estate, 178 Pa. 78 ; Burley v. German- American Bk., m U. S. 216 ; and cases supra.~\ 2 Price v. Torrington, 1 S. L. C. 328, 7th ed. 04 A DIGEST OF [Part I. (b) The question is, what were the contents of a letter not produced after notice. A copy entered immediately after the letter was written, in a book kept for that purpose, by a deceased clerk, is deemed to be relevant. 1 (c) The question is, whether A was arrested at Paddington, or in South Molton Street. A certificate annexed to the writ by a deceased sheriff's officer, and returned by him to the sheriff, is deemed to be relevant so far as it relates to the fact of the arrest ; but irrelevant so far as it relates to the place where the arrest took place.' 2 (d) The course of business was for A, a workman in a coal-pit, to tell B, the foreman, what coals were sold, and for B (who could not write) to get C to make entries in a book accordingly. The entries (A and B being dead) are deemed to be irrelevant, be- cause B, for whom they were made, did not know them to be true. 3 (e) The question is, what is A's age. A statement by the incumbent in a register of baptisms that he was baptized on a given day is deemed to be relevant. A statement in the same register that he was born on a given day is deemed to be irrelevant, because it was not the incum- bent's duty to make it. 4 1 Prittv. Fairclough, 3 Camp. 305. 2 Chambers v. Bernasconi, 1 C. M. & R. 347 ; see, too, Smith v. Blakey, L. R. 2 Q. B. 326. 3 Brain v. Preece, 11 M. & W. 773. [S. P. Gould v. Conway, 59 Barb. 355 ; Kent v. Garvin, 1 Gray, 148 ; Chaffee v. U.S., 18 Wall. 516, 543 ; Hoffman v. N. Y. C. R. Co., 14 J. & Sp. 526, 87 N. Y. 25 ; Thomas v. Price, 30 Md. 483. Entries made in the usual course of business upon information communicated by others have, however, been held competent, when their correctness is authenticated by the testimony of those who made such reports and entries, or by other satisfactory proof. Payne v. Hodge, 7 Hun, 612,71 N. Y. 598 ; Mayor of N. Y. v. Second Ave. R. Co., 102 N. Y. 572 ; Chisholm v. Beaman Co., 160 111. 101 ; Chicago Lumbering Co. v. Hewitt, 64 F. R. 314 ; Harwood v. Mnlry, 8 Gray, 250; Smith v. Law, 47 Ct. 431 ; cf. Chateaugay Lroti Co. v. Blake, 144 U. S. 476 ; Cobb v. Wells, 124 N. Y. 77 ; Powers v. Savin, 64 Hun, 560, 139 X. Y. 652.] * R. v. Clapham, 4 C. & P. 29. [Durfee v. Abbott, 61 Mich. 471 ; W hitc her \. McLaughlin, 115 Mass. 167; Blackburn v. Crawfords, 3 Wall. 175 ; Weaver v. Leiman, 52 Md. 708; Sitlerv. Gehr, 105 Pa. 577 ; see Hunt v. Order of Friends, 64 Mich. 671. So as to a register of marriages {Maxwell v. Chapman, 8 Barb. 579); and a hospital Chap. IV.] THE LAW OF EVIDENCE. 95 (/) The question is, whether A was married. Proceedings in a college book, which ought to have been, but was not, signed by the registrar of the college, were held to be irrelevant. 1 Article 28.* declarations against interest. A declaration is deemed to be relevant if the declarant had peculiar means of knowing the matter stated, if he had no interest to misrepresent it, and if it was opposed to his pecuniary or proprietary interest. 2 The whole of any such declaration, and of any other statement referred to in it, is deemed to be relevant, although matters may be stated which were not against the pecuniary or pro- * See Note XIX. [Appendix]. record. Townsend v. Peppercll, 99 Mass. 40 ; see Butler v. St. Louis Ins. Co., 45 la. 93.] 1 Fox v. Bearblock, 17 Ch. Div. 429. 2 These are almost the exact words of Bayley, J., in Gleadow v. A thin, 1 C. & M. 423. The interest must not be too remote. Smith v. Blakey, L. R. 2 Q. B 326. [Gr. Ev. i. §§ 147-155 ; Lyon v. Rickey, 141 N. Y. 225; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 192; Brennan v. Hall, 131 N. Y. 160; Taylor v. Gould, 57 Pa. 152 ; Hoben- sack v. Halli/ian, 17 id. 154, 158 ; Hart v. Kendall, 82 Ala. 144 ; Bart- lett v. Patlon, 33 W. Va. 7 1 ; Lamar v. Pearre, 90 Ga. 377 ; Scott Co. v. Fluke, 34 la. 317; Zimmerman v '. Bloom, 43 Minn. 163; Dea/i v. IVilkerson, 126 Ind. 338 ; cf. Lassone v. Boston, etc. R. Co., 66 N. H. 345 ; Chase v. Smith, 5 Vt. 556 ; Bird v. Hueston, 10 O. St. 418. The doctrine is also recognized in dicta in Comm. v. Densmore, 12 Allen, 537 ; Dwight v. Brown, 9 Ct. 83, 92. The declarant, must be dead (Id. ; Trammel! v. Hudmon, 78 Ala. 222). The statement in Lawrence v. Kimball, 1 Met. 527, that the rule applies only to written entries or statements, and not to oral declarations, is contrary to the weight of authority. R. v. Exeter, L. R. 4 Q. B. 341 ; County of Mahaska v. Ingalls, 16 la. 81 ; White v. Chouteau, 10 Barb, 202 ; Baker v. Taylor, 54 Minn. 71.] J 96 A DIGEST OF [Part I. prietary interest of the declarant ; ' but statements, not referred to in, or necessary to explain such declara- tions, are not deemed to be relevant merely because they were made at the same time or recorded in the same place. 2 A declaration may be against the pecuniary interest of the person who makes it, if part of it charges him with a liability, though other parts of the book or document in which it occurs may discharge him from such liability in whole or in part, and (it seems) though there may be no proof other than the statement itself either of such lia- bility or of its discharge in whole or in part. 3 A statement made by a declarant holding a limited interest in any property and opposed to such interest is deemed to be relevant only as against those who claim under him, and not as against the reversioner. 4 An indorsement or memorandum of a payment made upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such pay- ment was made, is not sufficient proof of such payment to take the case out of the operation of the Statutes of Limitation ; 5 but any such declaration made in any other form by, or by the direction of, the person to whom the payment was made is, when such person is dead, suffi- cient proof for the purpose aforesaid. 6 Any indorsement or memorandum to the effect above mentioned made upon any bond or other specialty by a deceased person, is regarded as a declaration against 1 \Livingston v. Ar?ioux, 56 N. Y. 507; Elswortli v. Muldoon, 15 Abb. Pr. (N. S.) .140, 448.] 8 Illustrations (a), (b) and (c). 3 Illustrations (d) and {e). 4 Illustration (g) ; see Lord Campbell's judgment in case quoted, p. 177. s 9 Geo. IV. c. 14, s. 3. 6 Bradley v. James, 13 C. B. 822. Newbouldv. Smith, 29 Ch. Div. Chap. IV.] THE LAW OF EVIDENCE. 97 the proprietary interest of the declarant for the purpose above mentioned, if it is shown to have been made at the time when it purports to have been made ; ' but it is uncertain whether the date of such indorsement or memorandum may be presumed to be correct without independent evidence. 2 Statements of relevant facts opposed to any other than the pecuniary or proprietary interest of the declarant are not deemed to be relevant as such. 3 877, seems scarcely consistent with this. It was a decision of North, J. On appeal, 33 Ch. Div. 138, the court expressed no opinion on the admissibility of the entry rejected by North, J. 1 3 & 4 Will. IV. c. 42, which is the Statute of Limitations relating to specialties, has no provision similar to 9 Geo. IV. c. 14, s. 3. Hence, in this case the ordinary rule is unaltered. 2 See the question discussed in 1 Ph. Ev. 302-5, and T. E. ss. 625-9, and see Article 85. [The general rule in this country, independently of statute, is that an indorsement on a bond, bill, note, etc., made by the obligee or promisee, without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party making such indorsement, unless it be shown that it was made at a time when its operation would be against the interest of the party making it, — that is, before the statute has barred the claim. The date of the indorsement is not sufficient to show this, but there must be independent evidence to this point. But it is not necessary that the declarant be dead, in order that the indorsement be received in evidence. Indorsements by the debtor, or with his consent and privity, are competent. {Mills v. Davis, 1 13 N. Y. 243 ; In re Kellogg, 104 N. Y. 648 ; Runner s Appeal, 121 Pa. 649 ; Coon's Appeal, 52 Ct. 186 ; Haver v. Schzuyhart, 39 Mo. App. 303 ; Hamilton v. Coffin, 45 Kan. 556; Curtis v. Daughdrill, yi Ala. 590; Clough v. McDaniel, 58 N. H. 201 ; White v. Beaman, 85 N. C. 3 ; Clark v. Burn, 86 Pa. 502.) Sometimes a similar rule is established by statute {Young v. Perkins, 29 Minn. 173). A number of the States have statutes similar to the present English statute (9 Geo. IV. c. 14), stated in the text. Mass. Pub. St. c. 197, s. 16 ; Me. Rev. St. c. 81, s. 100 ; Libby v. Brown, 78 Me. 492 ; Rogers v. Anderson, 40 Mich. 290 ; N. J. Rev. p. 596 ; Ind. Rev. St. s. 303 ; Wis. Rev. St. s. 4247.] 3 Illustration (/z). {United States v. Mulholland, 50 F. R. 413; Maine v. People, 9 Hun, 1 13.] A DIGEST OF [Part I. Illustrations. (a) The question is, whether a person was born on a particular day. An entry in the book of a deceased man-midwife in these words is deemed to be relevant : ' "\V. Fowden, Junr.'s wife, Filius circa hor. 3 post merid. natus H. W. Fowden,. Junr., App. 22, filius natus, Wife, .£1 6s. id. Pd. 25 Oct., 1768." (b) The question is, whether a certain custom exists in a part of a parish. The following entries in the parish books, signed by deceased church-wardens, are deemed to be relevant : — " It is our ancient custom thus to proportion church-lay. The chapelry of Haworth pay one-fifth, etc." Followed by — " Received of Haworth, who this year disputed this our ancient custom, but after we had sued him, paid it accordingly, — ,£8, and £1 for costs." '-' (e) The question is, whether a gate on certain land, the property of which is in dispute, was repaired by A. An account by a deceased steward, in which he charges A with the expense of repairing the gate, is deemed to be irrelevant, though it would have been deemed to be relevant if it had appeared that A admitted the charge. 3 (d) The question is, whether A received rent for certain land. A deceased steward's account, charging himself with the receipt of such rent for A, is deemed to be relevant, although the balance of the whole account is in favor of the steward. 4 (e) The question is, whether certain repairs were done at A's ex- pense. A bill for doing them, receipted by a deceased carpenter, is deemed to be k . , ' c > there being no other evidence either that the ( irrelevant,'' ) repairs were done or that the money was paid. 1 Higham v. Ridgway, 2 S. L. C. 318, 7th ed. 2 Stead v. Heaton, 4 T. R. 669. 3 Doe v. Bcviss, 7 C. B. 456. 4 Williams v. Graves, 8 C. & P. 592. 1 A\ v. Heyford, note to Higham v. Ridgway, 2 S. L. C. 333, 7th ed. i Doev. Vowles, 1 Mo. & Ro. 261, In Taylors. IVitham, 3 Ch. Diy, Chap. IV.] THE LAW OF EVIDENCE. 99 (/) The question is, whether A (deceased) gained a settlement in the parish of B by renting a tenement. A statement made by A, whilst in possession of a house, that he had paid rent for it, is deemed to be relevant, because it reduces the interest which would otherwise be inferred from the fact of A's pos- session. 1 (g) The question is, whether there is a right of common over a certain field. A statement by A, a deceased tenant for a term of the land in ques- tion, that he had no such right, is deemed to be relevant as against his successors in the term, but not as against the owner of the field. 2 (h) The question is, whether A was lawfully married to B. A statement by a deceased clergyman that he performed the marriage under circumstances which would have rendered him liable to a criminal prosecution is not deemed to be relevant as a statement against interest. 3 lRTICLe 29. declarations by testators as to contents of will. The declarations of a deceased testator as to his testa- mentary intentions, and as to the contents of his will, are deemed to be relevant when his will has been lost, and when there is a ques- tion as to what were its contents ; 4 and 605, Jessel, M. R., followed R. v. Heyford, and dissented from Doe v. Vowles. 1 R. v. Exeter, L. R. 4 Q. B. 341. 2 Papendick v. Bridgewater, 5 E. & B. 166. [See Lyoti v. Richer, 141 N. Y. 225 ; Lamar v. Pearre, 90 Ga. 377.] 3 Sussex Peerage Case, 11 C. & F. 108. 4 [In re Page, 118 111. 576; Southworth v. Adams, 11 Biss. 256; McDonald v. McDonald, 142 Ind. 55; In re Lambie, 97 Mich. 49; Valentine's Will, 93 Wis. 45 ; Pickens v. Davis, 134 Mass. 252 ; In re Johnson's Will, 40 Ct. 587 ; Collagan v. Bums, 57 Me. 449 ; Behrens v. Behrens, 47 O. St. 323 ; Byers v. Hoppe, 61 Md. 206 ; Apperson v. Dowdy, 82 Va. 776 ; Harris v. Knight, L. R. 15 P. D. 170 ; cf. Mutual Life Bis. Co. v. Hillmon, 145 U. S. 285, 298 ; Gardner v. Gardner, 177 Pa. 2i&. It is provided in New York by statute that in an action to A DIGEST OF [Part I. when the question is whether an existing will is genu- ine or was improperly obtained ; ' and when the question is whether any and which of more existing documents than one constitute his will.' 1 In all these cases it is immaterial whether the declara- tions were made before or after the making or loss of the will. 3 Article 30.* declarations as to public and general rights. Declarations are deemed to be relevant (subject to the third condition mentioned in the next Article) when they * See Note XX. [Appendix]. Also see Weeks v. Sparke, 1 M. & S. 679; Crease v. Barrett, I C. M. & R. 917. Article 5 has much in common with this Article. Lord Blackburn's judgment in Neillv. Duke of Devonshire, 8 App. Cas. 186-7, especially explains the law. establish a lost or destroyed will, or in an application to have it admitted to probate, its provisions must be proved by at least two credible witnesses, a correct copy or draft being equal to one witness (Code Civ. Pro. §§ 1865, 2621 ; Everitt v. Everitt, 41 Barb. 385). That evidence of the testator's declarations as to its contents may be re- ceived in such cases, see Hatch v. Sigman, 1 Demarest, 519. But in certain proceedings of other kinds it is held that proof by one witness is sufficient. Harris v. Harris, 26 N. Y. 433 ; Upton v. Bernstein, 73 Hun, 516.] 1 [See Art. 11, Illustration {0); Taylor Will Case, 10 Abb. Pr. (N. S.) 300 ; Crispell v. Dubois, 4 Barb. 393 ; Hoppe v. Byers, 60 Md. 381 ; cf. Beadles v. Alexander, 9 Baxt. 604 ; Boylan v. Meeker, 28 N. J. L. 274.] 8 [Valentine s Will, 93 Wis. 45. In New York it is essential to the valid execution of a will that the testator declare to the attesting witnesses that it is his last will and testament (2 R. S. * 63, s. 38). This is called the " publication " of the will. Evidence of such declarations is accordingly receivable upon a proceeding for the admission of the will to probate. Or his assent to such declarations, when made for him by others in his presence, may be enough {Gilbert v. Knox, 52 N. Y. 125 ; Lane v. Lane, 95 N. Y. 494). And similar evidence is received in other States. E/kinton v. Brick, 44 N. J. Eq. 154 ; Denny v. Pinney, 60 Yt. 524 ; Estate of Johnson, 57 Cal. 529.] 3 Sugden v, St. Leonards^ L. R. 1 P, D. (C. A.) 154. [This is cited by Chap. IV.] THE LAW OF EVIDENCE. 101 relate to the existence of any public or general right or custom or matter of public or general interest. 1 But declarations as to particular facts from which the exist- ence of any such public or general right or custom or the author as authority for the whole Article.] In questions between the heir and the legatee or devisee, such statements would probably be relevant as admissions by a privy inlaw, estate, or blood ( Gould v. Lakes, L. R. 6 P. D. i ; Doe v. Palmer, 16 Q. B. 747). The decision in this last case at p. 757, followed by Quick v. Quick, 3 Sw. & Tr. 442, is overruled by Sugden v. St. Leonards. [Since the decision of Sugden v. St. Leonards, it has been questioned in the English House of Lords whether post-testamentary declarations of a testator as to the contents of his will should be deemed admissible. Woodward v. Goulstone, 11 App. Cas. 469 ; cf. Atkinson v. Morris, [1897] P. 40.] 1 [The general doctrine of this Article is fully recognized in this country (Gr. Ev. i. §§ 127-140, 145; Ellicott v. Pearl, 10 Pet. 412; Shuttle v. Thompson, 15 Wall. 151 ; McKinnon v. Bliss, 21 N. Y. 206, 218; People v. Velarde, 59 Cal. 457 ; Drury v. Midland R. Co., 127 Mass. 571 ; Woostcr v. Butler, 13 Ct. 309 ; Birmingham v. Anderson, 40 Pa. 506 ; Hampson v. Taylor, 15 R. I. 83 ; Young v. Kansas City, etc. R. Co., 39 Mo. App. 52 ; Mullancy v. Duffy, 145 111. 559). Thus the boundaries established by the United States surveys are provable by such evidence of common repute, when the monuments have dis- appeared (Thoen v. Roche, 57 Minn. 135). But in many States evidence is also received of the declarations of deceased persons as to the boundaries of private estates ; but the limitations of this doctrine are different in different States. In some States such declarations, if made by one in possession of land owned by him, while he was pointing out the boundaries on the land itself, are admissible, when nothing appears to show an interest to deceive or misrepresent ; the declarations are part of the res gestae {Long v. Colton, 1 16 Mass. 414 ; Robinson v. Dewhurst, 68 F. R. 336 ; Royal v. Chandler, 83 Me. 150). In other States the declarations of deceased surveyors', made while they were surveying the land, or of other deceased persons having special means of knowledge of the facts stated, made while they were pointing out t>r describing the boundaries, are deemed compe- tent, if no interest to misrepresent appears {Kramer v. Goodlander, 98 Pa. 366; Clement v. Packer, 125 U. S. 309; Lemmon v. Hartsook, 80 Mo. 13 ; Powers v. Silsby, 41 Vt. 288 ; Smith v. Forrest, 49 N. H. 230; Kinney v. Farnsivorth, 17 Ct. 355 ; Fry v. Stowers, 92 Va. 13; Bethea v. Byrd, 95 N. C. 309 ; contra, Chapman v. Twitchell, 37 Me. 59; cf. Jackson v, McCall, 10 Johns. 377); though such declarations 102 A DIGEST OF [Part I. matter of public or general interest may be inferred, are deemed to be irrelevant.' A right is public if it is common to all her Majesty's subjects, 2 and declarations as to public rights are relevant whoever made them. A right or custom is general if it is common to any considerable number of persons, as the inhabitants of a parish, or the tenants of a manor. Declarations as to general rights are deemed to be relevant only when they were made by persons who are shown, to the satisfaction of the judge, or who appear from the circumstances of their statement, to have had competent means of knowledge. Such declarations may be made in any form and manner. Illustrations. (a) The question is, whether a road is public. A statement by A (deceased) that it is public is deemed to be rele- vant. 3 relate to "particular facts" showing boundaries, they are still held admissible in many of these States (Id.; Hinuiicutt v. Peyton, 102 U.S. 333). So ancient deeds, wills, and other solemn instruments are sometimes deemed competent to prove matters of a private nature, though evidence of verbal declarations would be excluded (Oldtown v. Shapleigh, 33 Me. 278 ; Greenfield v. Camden, 74 Me. 56 ; Ward v. Oxford, 8 Pick. 476 ; see Wright v. Boston, 126 Mass. 161). When private and public boundaries coincide, evidence of reputa- tion as to the latter will avail to prove the former. Curtis v. Aaro/isou, 49 N. J. L. 68, 76 ; Muttaney v. Duffy, 145 111. 559.] x \F{all v. Mayo, 97 Mass. 416; 5. W. School Dist. v. Williams, 48 Ct. 504; Fraser v. Hunter, 5 Cr. C. C. 470. So declarations con- (lining private rights are, in general, deemed to-be irrelevant (Id.; Boston, etc. Co. v. Hanlon, 132 Mass. 483; Curtis v. Aaronson, 49 X. J. L. 68); but see last note as to private boundaries.] 2 [Or in this country, to all the citizens of the State ; the " who- ever" which follows would apply to any such citizen. Gr. Ev. i. § 128.] u Crease v. Barrett, per Parke, B., 1 C. M. & R. 929. Chap. IV.] THE LAW OF EVIDENCE. 103 A statement by A (deceased) that he planted a willow (still stand- ing) to show where the boundary of the road had been when he was a boy is deemed to be irrelevant. 1 (ad) [The question is, whether certain fences and trees have been placed by A on his own land or within the limits of the public high- way. Old men who lived in the vicinity of the highway fifty years or more ago may be allowed to state where the line of the highway was re- puted to be when they were young men. Extracts from ancient records of the town, showing the boundaries of the highway when laid out, are deemed to be relevant.] 2 (b) The following are instances of the manner in which declara- tions as to matters of public and general interest may be made: — They may be made in Maps prepared by, or by the direction of, persons interested in the matter ; 3 Copies of court rolls ; 4 Deeds and leases between private persons ; 5 Verdicts, judgments, decrees, and orders of courts, and similar bodies, 6 if final. 1 Article 31.* declarations as to pedigree. A declaration is deemed to be relevant (subject to the conditions hereinafter mentioned), if it relates to the existence of any relationship between persons, whether * See Note XXI. [Appendix]. '/?. v. Bliss, 7 A. & E. 550. 2 [Stale v. Vale Mills, 63 N. H. 4.] 3 Implied in Hammond -v. Bradstreet, 10 Ex. 390, and Bipe v. Ful- cher, 1 E. & E. in. In each of these cases the map was rejected as not properly qualified. [Cf. McCansland v. Fleming, 63 Pa. 36; Smith v. Forrest, 49 N. H. 230; see p. w^^ost, note 2.] 4 Crease v. Barrett, 1 C. M. & R. 928. 6 Flaxton v. Dare, 10 B. & C. 17 ; [Drury v. Midla?id R. Co., 127 Mass. 571.] 6 Duke of Newcastle v. Broxtowe, 4 B. & Ad. 273 ; [ Willey v. Boris- mouth, 35 N. H. 303.] 1 Pirn v. Cur re II, 6 M. & W. 234, 266. 104 A DIGEST OF [Part I. living or dead, or to the birth, marriage, or death of any person, by which such relationship was constituted, or to the time or place at which any such fact occurred, or to any fact immediately connected with its occur- rence. 1 Such declarations may express either the personal knowledge of the declarant, or information given to him by other persons qualified to be declarants, but not in- formation collected by him from persons not qualified to be declarants. 2 They may be made in any form and in 1 Illustration (a). [Eisenlord v. Clum, 126 N. Y. 552; Jackson v. King, 5 Cow. 237 ; Haddock v. B. &> M. R. Co., 3 Allen, 298 ; Fulker- son v. Holmes, 1 17 U. S. 389 ; Pickens 's Estate, 163 Pa. 14 ; Shorten v. Jitdd, 56 Kan. 43 ; Robbs Estate, 37 S. Car. 19 ; Jackson v. Jackson, 80 .M<1. 176; Weaver v. Leiman, 52 Md. 708; Van Sickle v. Gibson, 40 Mich. 170 ; Cuddy v. Brown, 78 111. 415 ; Morrill v. Foster, 33 N. H. 379 ; Eaton v. Tallmadge, 24 Wis. 217 ; Dawson v. May all, 45 Minn. 408. The declarant must be dead (Id.; Mooers v. Bunker, 29 N. H. 420). But such evidence is not generally received in this country to show the place, though it is deemed competent to show the time, of birth, marriage, or death {Ada/us v. Swansea, 1 16 Mass. 591, 596 ; McCarty v. Terry, 7 Lans.^36 ; Union v. Plainfield, 39 Ct. 563 ; Greenfield v. Camden, 74 Me. 56; Tylerv.Elanders, 57 N. H. 618; Swink v. French, 11 Lea, 78; but see Byers v. Wallace, 87 Tex. 503, 511 ; Wise v. Wytin, 59 Miss. 588 ; Jackson v. Jackson, 80 Md. 176). A person's age may be a question of pedigree ( Watson v. Brewster, 1 Pa. 381 ; Conn. Life Ins. Co. v. Schweuk, 94 U. S. 593, 598), and he may testify to his own age, stating what he learned thereon from deceased parents, from family tradition, etc. (Slate v. Marshall, 137 Mo. 463; Covmi. v. Stevenson, 142 Mass. 466 ; State v. McClain, 49 Kan. 730 ; Morrison v. Emslcy, 53 Mich. 564 ; People v. Rats, 1 15 Cal. 132 ; Holton v. Man- teujfel,%\ Minn. 185; Stevenson v. Kaiser, 29 N. Y. S. 1122); some- times his testimony has been received, though his parents were still living ( West Virginia v. Cain, 9 W. Va. 559 ; Pearce v. Kyzer, 16 Lea, 521 ; cf. Krcitz v. Behrensmeyer, 125 111. 141). The personal appear- ance of the person whose age is in question may also be considered by the jury. Hermann v. State, 73 Wis. 248 ; Comm. v. Phillips, 162 Mass. 504.] 8 Davies v. Lowndes, 6 M. & G. 527. [Jewell's Lessee v. Jewell, I How. (U. S.) 219, 231 ; Eisenlordv. Clum, 126 N. Y. 552, 565.] Chap. IV.] THE LAW OF EVIDENCE. 105 any document or upon anything in which statements as to relationship are commonly made. 1 The conditions above referred to are as follows — ( 1 ) Such declarations are deemed to be relevant only in cases in' which the pedigree to which they relate is in issue, and not to cases in which it is only relevant to the issue ; 2 (2) They must be made by a declarant shown to be legitimately related by blood to the person to whom they relate ; or by the husband or wife of such a person. 3 1 Illustration (c). 2 Illustration (b). \Comm. v. Felch, 132 Mass. 22; but see North Brookpeld v. Warren, 16 Gray, 174. Thus birth, marriage, and death cannot be proved by such evidence in cases in which pedigree is not in issue. Blaisdell v. Bickum, 139 Mass. 250 ; Eisenlord v. Clum, 126 N. Y. 552, 566 ; Ross v. Loomis, 64 la. 432.] 3 Shrewsbury Peerage Case, 7 H. L. C. 26. For Scotch law, see Laziderdale Peerage Case, 10 App. Cas. 692 ; also Lovat Peerage Case, Id. 763. In In re Turner, Glenister v. Harding, 29 Ch. Div. 985, a declaration by a deceased reputed father of his daughter's illegitimacy was admitted on grounds not very clear to me, and on the authority of two Nisi Prius cases, Morris v. Davies, 3 C. & P. 215, and 1 Mo. & Ro. 269. See note to Art. 34. [The rule generally stated in American cases is that the pedigree of a person may be shown by the declarations of deceased persons related to him by blood or marriage (Gr. Ev. i. § 103 ; Northrop v. Hale, 76 Me. 306 ; Haddock v. B. &*M.R. Co., 3 Allen, 298 ; Sitter v. Gehr, 105 Pa. 577 ; Conn. Life Ins. Co. v. Schwenk, 94 U. S. 593, 598). But whether all relatives by marriage, both near and remote, are competent to make such declarations is undetermined (see People v. Fulton Fire Ins. Co., 25 Wend. 205). In Jewell ' s Lessee v. Jewell, 1 How. (U. S.) 219, the declarations of a deceased husband, that the parents of his wife were not married, were received. So the declarations or conduct of deceased persons may be shown to prove their children or grandchildren illegitimate {Had- dock v. B. &> M. R. Co., 3 Allen, 298 ; Barnum v. Barnum, 42 Md. 251 ; but see Flora v. Anderson, 75 F. R. 217), or to prove legitimacy (Kenyon v. Ashbridge, 35 Pa. 157; cf. Alexander v. Chamberlain, 1 T. & C. 600). The declarations of a deceased woman have been received to show her sister's son to be illegitimate {Northrop v. Hale, 76 Me. 306). But the relationship of the declarant must in any case 106 A DIGEST OF [Part I. (3) They must be made before the question in relation to which they are to be proved has arisen ; but they do not cease to be deemed to be relevant because they were made for the purpose of preventing the question from arising. 1 This condition applies also to statements as to public and general rights or customs and matters of public and general interest. Illustrations. (a) The question is, which, of three sons (Fortunatus, Stephanus, and Achaicus) born at a birth is the eldest. The fact that the father said that Achaicus was the youngest, and he took their names from St. Paul's Epistles (see 1 Cor. xvi. 17), and the fact that a relation present at the birth said that she tied a string round the second child's arm to distinguish it, are relevant. 2 (b) The question is, whether A, sued for the price of horses and pleading infancy, was on a given day an infant or not. The fact that his father stated in an affidavit in a chancery suit, to be shown by other evidence than the declarations themselves (Black- burn v. Crawfords, 3 Wall. 175; Lamoreaux v.Att'y General, 89 Mich. 146; Thompson v. Wool/, 8 Or. 454); it is said, however, that onl> slight proof of such relationship will be required (Fulkerson v. Holmes, 117 U. S. 389 ; see Northrop v. Hale, 76 Me. 306, 309). The declarations of deceased neighbors, acquaintances, servants, or other strangers are not competent evidence. In re Seabtiry, 1 App. Div. (N. Y.) 231 ; Chapman v. Chapman, 2 Ct. 347 ; Cames v. Cran- dall, 10 la. 377 ; De Haven v. De Haven, 77 Ind. 236; and cases supra; contra, Carter \. Montgomery, 2 Tenn. Ch. 216.] 1 Berkeley Peerage Case, 4 Camp. 401-417 ; and see lovat Peerage Case, 10 App. Cas. 797. [The form in which this rule is usually stated is that the declarations must have been made ante litem mota?n, i. e., before a controversy arose about the matter. People v. Fulton Fire Ins. Co., 25 Wend. 205 ; Stein v. Bowman, 13 Pet. 209; Chapman v. Chapman, 2 Ct. 347 ; Northrop v. Hale, 76 Me. 306 ; Metheny v. Bohn, 160 111. 263 ; Comm. v. Fetch, 132 Mass. 23 ; Barnttm v. Barnum, 42 Md. 251, 304 ; Caujolle v. Ferric", 23 N. Y. 90, 104.] 2 Vin. Abr, tit. Evidence, T.b.91. The report calls the son Achicus. (map. IV.] THE LAW OF EVIDENCE. 107 which the plaintiff was not a party, that A was born on a certain day, is irrelevant. 1 (c) The question is, whether one of the cestuis que vie in a lease for lives is living. The fact that he was believed in his family to be dead is deemed to be irrelevant, as the question is not one of pedigree. 2 {d) The following are instances of the ways in which statements as to pedigree may be made : By family conduct or correspondence ; in books used as family registers ; in deeds and wills ; in inscriptions on tombstones, or portraits ; in pedigrees, so far as they state the relationship of living persons kgibwn to the compiler. 3 /•/ ''Article 32.* evidence given in former proceeding, when relevant. Evidence given by a witness in a previous action is relevant for the purpose of proving the matter stated in a subsequent proceeding, or in a later stage of the same * See Note XXII. [Appendix]. 1 Guthrie v. Haines, 13 O. B. D. 818 (1884). In this case all the authorities on this point are fully considered. 2 Whittuck v. Walters, 4 C. & P. 375. [For cases in which death has been deemed a question of pedigree, see Cochrane v. Libby, 18 Me. 39 ; Webb v. Richardson, 42 Vt. 465 ; Clark v. Owens, 18 N. Y. 434-] 3 In 1 Ph.Ev. 203-215, and T. E. ss. 583-7, these and many other forms of statement of the same sort are mentioned ; and see Davies v. Lowndes, 6 M. & G. 527. [See Bassom v. Forsyth, 32 N. J. Eq. 277, note. The following are instances : family conduct or reputation {Eaton v. Tallmadge, 24 Wis. 217; Clark v. Owens, 18 N. Y. 434; Harland v. Eastman, 107 111. 535 ; Pickens's Estate, 163 Pa. 14), at least, if the reputation be based upon declarations of deceased mem- bers of the family {Hurlbut's Estate, 68 Vt. 366) ; family Bible {Green- leaf v. Dubuque, etc. R. Co., 30 la. 301 ; Himt v. Johnson, 19 N. Y. 279, 286) ; will {Pearson v. Pearson, 46 Cal. 610) ; parchment pedigree and inscription on tombstone {North Brookficld \. Warren, 16 Gray, 171 ; McClaskey v. Parr, 54 F. R. 781) ; a soldier's private record book of pedigree {Hunt v. Order of Chosen Friends, 64 Mich. 671) ; deeds {Scharffv. Keener, 64 Pa. 376 ; Fulkerson v. Holmes, 117 U. S. 389). The persons executing such instruments must have been relatives {Sitlerv. Gehr, 105 Pa. 577); as to the testimony of a witness who ioS A : OF [Part I. proceeding', when the witness is dead, 1 or is mad, 2 or so ill that he will probably never be able to travel, 3 or is kept out of the way by the adverse party, 4 or in civil, but not, it seems, in criminal, cases, is out of the jurisdiction of the court, 5 or, perhaps, in civil, but not in criminal, cases, when he cannot be found. 6 derives his information from documents, etc., of these kinds, see Eastman v. Martin, 19 N. H. 152.] 1 Mayor of Doncaster v. Day, 3 Tau. 262. 2 R. v. Eriswell, 3 T. R. 720. 3 R. v. Hogg, 6 C. & P. 176. 4 R. v. Scaife, 17 Q. B. 238, 243. * Fry v. Wood, 1 Atk. 444 ; R. v. Scaife, 17 Q. B. 243. 6 Godbolt, p. 326, case 418 ; R. v. Scaife, ij Q. B. 243. [The death of the witness will in all States admit his former testimony. Insanity, also, is generally deemed a sufficient ground ( Whitaker v. Marsh, 62 N. H. 477; Stein v. Swensen, 46 Minn. 360; Howard v. Patrick, 38 Mich. 795 ; Morehouse v. Morehouse, 17 Abb. N. C. 407). As to other disabilities, there is much difference of doctrine. Thus, in civil cases, the New York rule is that absence from the jurisdiction, or the fact that the witness cannot be found, is not enough ( Weeks \.Lowerre,Z Barb. 530 ; Mutual Life his. Co. v. Anthony, 50 Hun, 101).. In Pennsylvania such evidence is received, if the witness has died, has become insane, is sick and unable to attend, has lost his memory through disease or old age, is out of the jurisdiction, cannot be found, or has become in- competent to testify by reason of the death of the opposite party to the suit ( Walbridge v. Knippcr, 96 Pa. 48 ; Ballman v. Heron, 169 Pa. 510; Thornton v. Britton, 144 Pa. 126). In Illinois, death, insanity, or the keeping of the witness away by the adverse party, is sufficient {Stout v. Cook, 47 111. 530; cf. Cassadayx. Trustees, 105 111. 560). Absence from the jurisdiction is held sufficient in California, Nebraska, Michigan, and Iowa {Benson v. Shotwell, 103 Cal. 163; Young v. Sage, 42 Neb. 38; Hudson v. Roos, 76 Mich. 173; cf. Kellogg v. Secord, 42 Mich. 318; Fleming v. Shenandoah, 71 la. 456; cf. Bank of Monroe v. Gifford, 79 la. 300) ; but not in New Jersey {Berney v. Mitchell, 34 N. J. L. 337, and that, too, even though he cannot be found, Id.) ; nor in Missis- sippi {Gastrch l\. Phillips, 64 Miss. 473); in Minnesota, if a witness resides beyond the jurisdiction of the court, his former testimony may be proved {Minneapolis Mill Co. v. Minn. etc. R. Co., 51 Minn. 304; S. P. Dunbar v. McGill, 69 Mich. 297). Sickness which renders the witness unable to attend is sometimes held sufficient {Chase v. Spring- vale Mills Co., 75 Me. 156 ; Scoville v. Hannibal, etc. R. Co., 04 Mo. Chap. IV.] THE LAW OF EVIDENCE. 109 Provided in all cases — (1) That the person against whom the evidence is to 84 ; cf. Central R. Co. v. Murray, 97 Ga. 326 ; Bemey v. Mitchell, 34 N- J- L. 337,341). In criminal cases, death of the witness is deemed sufficient {Mattox v. U. S., 156 U. S. 237 ; Bass v. State, 136 Ind. 165 ; State v. Elliott, 90 Mo. 350; State v. George, 60 Minn. 503 ; Bar.nett v. People, 54 111. 325 ; People v. Dowdigan, 67 Mich. 95 ; Jackson v. Slate, 81 Wis. 127; State v. Fitzgerald, 63 la. 268) ; but not his absence from the juris- diction (U. S. v. Angell, 11 F. R. 34 ; Brogy v. Comm., 10 Gratt. 722 ; People v. Newman, 5 Hill, 295 ; People v. Gordon, 99 Cal. 227; Pittman v. State, 92 Ga. 480 ; Owens v. State, 63 Miss. 450 ; contra, McNamara v. Sfa/i, 60 Ark. 400 ; Thompson v. State, 106 Ala. 67, if the absence be permanent or indefinite); nor his illness {Comm. v. McKenna, 158 Mass. 207; State v. Staples, 47 N. H. 113). But if the witness is wrongfully kept" away by the defendant, the former evidence against such defendant has been received {Reynolds v. U. S., 98 U. S. 145 ; Stale v. tlouser, 26 Mo. 431 ; contra, Bergen v. State, 17 111. 426). And now, in some States, by statute, depositions given on a prelimi- nary examination before a magistrate may be read in evidence on the trial, if the witness is dead, or insane, or cannot with due diligence be found {People v. Fish, 125 N. Y. 137 ; People v. Gardner, 98 Cal. 127 ; State v. King , 86 N. C. 603 ; cf . Mattox v. U. S., 1 56 U. S. 237 ; the rule in Pennsylvania is broader still, Comm. v. Cleary, 148 Pa. 26). The constitutional provision that the defendant shall be confronted with the witnesses against him is generally held not to exclude this kind of evidence {People v. Sligh, 48 Mich. 54 ; see all the cases in this paragraph). The former testimony maybe proved by any witness who heard and remembers it, if he can state the substance of the whole of it ( Woods v. Keyes, 14 Allen, 236 ; Hcplcr v. Mt. Carmel Bk., 97 Pa. 420 ; Har- rison v. Charlton, 42 la. 573 ; Black v. Woodrow, 39 Md. 194 ; German Nat. Bk. v. Leonard, 40 Neb. 677 ; Fmery v. Fowler, 39 Me. 326). He need only state the substance of such testimony, not its precise language ; nor need his language be even substantially the same (Gr. Ev. i. § 165 ; Ruch v. Rock Island, 97 U. S. 693 ; Hepler v. Mt. Carmel Bk., 97 Pa. 420 ; U. S. v. Macomb, 5 McL. 286 ; State v. Able, 65 Mo. 357; Summons v. Slate, 5 O. St. 325; Lime Rock Bk. v. Hewett, 52 Me. 531 ; State v. O 'Brien, 81 la. 88). But in Massachusetts sub- stantially the original language must be given {Costigan v. Lunt, 127 Mass. 354). The New York cases seem to support the former rule, but they do not appear to be entirely in accord {Crawford v. Loper, no A DIGEST OF [Pari j be given had the right and opportunity to cross-examine the declarant when he was examined as a witness; 1 (2) That the questions in issue were substantially the same in the first as in the second proceeding- ; ' 25 Barb. 449; Martin v. Cope, 3 Abb. Dec. 182; Clark v. Vorce, 15 Wend. 193 ; Wilbur v. Selden, 6 Cow. 162). In Mclntyre v. N. Y. C. R. Co., 27 N. Y. 287, 291, a witness, who took minutes of the deceased witness's former testimony, said : — " I designed to take the substance of the testimony as given by the witness, and presume I have ; I have no recollection of the testimony aside from what I have here ; should judge that it was not possible for me to take the whole testi- mony verbatim; did not aim to take more than the substance." On this basis the testimony of the deceased witness was allowed to be proved. Such former testimony may be proved by a stenographer from memory {Moore v. Moore, 39 la. 461)1 or by using his minutes to refresh recollection {Sage v. State, 127 Ind. 15 ; State v. George, 60 Minn. 503) ; by a juror who heard it (Huichings v. Corgan, 59 111. 70); by an attorney (Earl v. Tapper, 45 Vt. 275; Costigan v. Lunt, 127 Mass. 354, who may refresh his recollection by his minutes, Id.) ; by the judge's minutes, duly authenticated by him as to completeness and accuracy (Martin v. Cope, 3 Abb. Dec. 182 ; Whitcher v. Morey, 39 Vt. 459) ; by the minutes of stenographers, counsel, masters in chancery, etc., if they are duly shown to have been taken correctly (Luctgcrt v. / 'olker, 153 111. 385 ; Labar v. Crajie, 56 Mich. 585 ; Jack- son v. State, 81 Wis. 127; Qiiinn v. Halbert, 57 Vt. 178; Rhine v. Robinson, 27 Pa. 30; Yale v. Conistock, 112 Mass. 267); by a bill of exceptions or "case," duly authenticated as containing the evidence fully and accurately (Davis v. Kline, 96 Mo. 401 ; Slingerlainl v. Slingerland, 46 Minn. 100; Wilson v. Noonan, 35 Wis. 321 ; cf. Solo- mon R. Co. v. Jones, 34 Kan. 443 ; contra, Stem v. People, 102 111. 540); and by other like methods. These rules apply also to the former testimony of a deceased party. But by statute in some States, if this testimony is not proved on the second trial, the surviving party cannot be a witness to testify against the decedent's representatives (Emerson v. Bleakley, 2 Abb. Dec. 22 ; Bradley v. Mirick,^\ N. Y. 293 ; Stewart v. First Nat. Bk., 43 Mich. 257 ; see Blair v. Ellsworth, 55 Vt. 415). Former testimony given before arbitrators may be proved. Wal- bridge v. Knipper, 96 Pa. 48 ; Bailey v. Woods, 17 N. H. 365 ; contra, Jessup v. Cook, 6 N. J. L. 434 ; cf. Jackson v. Bailey, 2 Johns. 17.] 1 [See p. in, note 1, and cases cited.] Chap. IV.] THE LAW OF EVIDENCE. in Provided also — (3) That the proceeding, if civil, was between the same parties or their representatives in interest ; ' (4) That, in criminal cases, the same person is accused upon the same facts. 2 If evidence is reduced to the form of a deposition, the provisions of Article 90 apply to the proof of the fact that it was given. 3 The conditions under which depositions may be used as evidence are stated in Articles 140-142. 1 Doe v. Tat ham, 1 A. & E. 319; Doe v. Derby, 1 A. & E. 783, 785, 789. See, as a late illustration, as to privies in estate, Hanover v. Honifray, 19 Ch. D. 224. In this case the first set of proceedings was between lords of the same manor and tenants of the same manor as the parties to the second suit. [Osborn v. Pell, 5 Den. 370 ; Jackson v. Crissey, 3 Wend. 251 ; Chase v. Springvale Mills Co., 75 Me. 156; Walbridge v. Knipper, 96 Pa. 48, 5 1 ; Marshall v. Hancock, 80 Cal. 82 ; Lane v. Brainerd, 30 Ct. 565 ; Orr v. Hadley, 36 N. H. 575 ; and cases supra. It is enough that the opportunity for cross-examination exist, though it is not exercised (Bradley v. Mirick, 91 N. Y. 293). Privies in blood, in law, or in estate, are "representatives in interest" within this rule (Jackson v. Lawson, 15 Johns. 539; Yale v. Comstock, 1 12 Mass. 267). So the plaintiffs in one suit may be defendants in the other. And if the parties to the second suit were all parties to the first, the evidence is admissible, though there were additional parties to the first suit (Allen v. Chouteau, 102 Mo. 309) ; aliter, if new parties are introduced into the second suit (Orr v. Hadley, 36 N. H. 575). The testimony of a deceased witness is, however, inadmissible, unless he would, if living, have been a competent witness in the second suit (Eaton v. Alger, 47 N. Y. 345). The testimony of a witness given at a coroner's inquest is not admissible in an action to recover damages for causing the death of the deceased, though the witness has since died (Cook v. N. Y. Central R. Co., 5 Lans. 401 ; Pittsburgh, etc. R. Co. v. McGrath, 115 111. 172 ; cf. McLain v. Comm., 99 Pa. 86 ; U. S. Life Ins. Co. v. Vocke, 129 111. 557). The inquest is not an action or judicial proceeding between the parties.] ' 2 Bcestons Case, Dears. 405. [See the criminal cases cited in note on p. 109, ante.] 3 [See Chase v. Springvale Mills Co., 75 Me. 156; People v. Pish, 125 N.Y. 136.] ii2 A DIGEST OF [Part SECTION II. STATEMENTS IN BOOKS, DOCUMENTS, AND RECORDS, WHEN RELEVANT. Article $$. recitals of public facts in statutes and proclamations. 1 When any act of state or any fact of a public nature is in issue or is, or is deemed to be, relevant to the issue, any statement of it made in a recital contained in any public Act of Parliament, or in any royal proclamation or speech of the Sovereign in opening Parliament, or in any address to the Crown of either House of Parliament, is deemed to be a relevant fact. 3 Article 34. relevancy of entry in public record made in perform- ance of duty. An entry in any record, official book, or register kept in any of Her Majesty's dominions 3 or at sea, or in any 1 [This Article may be adapted to American law by making it read as follows : When any act of state or any fact of a public nature is in issue, or is, or is deemed to be, relevant to the issue, any statement of it made in a recital contained in any public statute, or in any procla- mation of the Executive, or in state papers communicated by the Executive to the Legislature, or published under public authority, or in legislative journals or resolutions, is deemed to be a relevant fact (Gr. Ev. i.§49i ; McKinnon v. Bliss, 21 N. Y. 206 ; Radcliffv. United Ins. Co., 7 Johns. 38, 51 ; Root v. King, 7 Cow. 613 ; Spongier v. Jacoby, 14 111. 297 ; Whiton v. Albany, etc., Ins. Co., 109 Mass. 24, and cases cited ; Worcester v. Northborough, 140 Mass. 397 ; Clemens v. Meyer, 44 La. Ann. 390 ; see Armstrongs. U. S., 13 Wall. 154). So of recitals in the official precept of a governor (Comm. v. Hall, 9 Gray, 262). As to the effect of recitals in private statutes, see McKin- non v. Bliss, supra.] 2 R. v. Francklin, 17 S. T. 636 ; R. v. Sutton, 4 M. & S. 532. 3 [For this country this should read, " in any State or Territory or the District of Columbia."] Chap. IV.] THE LAW OF EVIDENCE. 113 foreign country, stating, for the purpose of being referred to by the public, a fact in issue or relevant or deemed to be relevant thereto, and made in proper time by any person in the discharge of any duty imposed upon him by the law of the place in which such record, book, or register is kept, is itself deemed to be a relevant fact. 1 1 Sturla v. Freccia, 5 App. Cas. 623 ; see especially pp. 633-4 and 643-4; Lyell v. Kennedy, 14 App. Cas. 437; T. E. (from Greenleaf) ss. 1429, 1432. See also Queen s Proctor v. Fry, L. R. 4 P. D. 230. In hi re Turner, Glenislerv. Harding, 29 Ch. D. 990, Chitty, J., in a pedi- gree case, held, though with some hesitation, and though it was not necessary to the decision of the case, that a statement of age in a bap- tismal register, made under 52 Geo. III. c. 146, might be looked at in a question of legitimacy. His authorities were Morris v. Davies, 3 C. & P. 215, and Cope v. Cope, 1 M. & R. 269. These are only Nisi Prius decisions, though spoken of by Chitty, J., as binding on him. See note to Article 31. [Gr. Ev. i. §§483-485, 493-495 ; Evanston v. Gunn, 99 U. S. 660 ; Sandy White v. United States, 164 U. S. 100 ; Gurney v. Howe, 9 Gray, 404 ; Pells v. Webquish, 129 Mass. 469 ; Gait v. Gallo- ways Pet. 332 ; Cassaday v. Trustees, 105 111. 560; Bell v. Kendrick, 25 Fla. 778 ; Succession of Justus, 48 La. Ann. 1096 ; Jacobi v. Order of Germania, 73 Hun, 602 ; Bissell v. Hamblin, 6 Duer, 512 ; People v. Zeyst, 23 N. Y. 140 ; cf. Tessma?tn v. United Friends, 103 Mich. 185; see Art. 27, Illustration (e), ante. Thus records of the weather kept by officers of the United States Signal Service are admissible {Evans- ton v. Gunn, supra ; Chicago, etc. R. Co. v. Trayes, 17 111. App. 136 ; cf. People v. Dow, 64 Mich. 717). This rule is limited to such statements in official documents as the officers make in the regular course of official duty (Id.; United States v. Corwin, 129 U. S. 381 ; Rindge v. Walker, 61 N. H. 58 ; Erwin v. English, 61 Ct. 502). The books of a private corporation are of the nature of public books as between the members (Gr. Ev. i. § 493). When they are duly kept in the regular course of business, they are, in general, competent to show the acts and proceedings of the corporation ( Wctherbee v. Baker, 35 N. J. Eq. 501 ; Ten Eyck v. Railroad Co., 74 Mich. 226 ; Hubbellv. Meigs, 50 N. Y. 480; Turnpike Co. v. M'Kcan, 10 Johns. 154; see Angell & Ames on Corp. §§ 679, 681). So they are evidence in favor of the corporation, to show that it was properly organized {McFarlan v. Triton Ins. Co., 4 Den. 392). But they are not generally competent evidence in favor cf the corporation against a stranger (Graville v. ii4 A DIGEST OF [Part I. Article 35. relevancy of statements in works of history, maps, charts, and plans. Statements as to matters of general public history made in accredited historical books are deemed to be relevant, when the occurrence of any such matter is in issue or is, or is deemed to be, relevant to the issue ; but statements in such works as to private rights or customs are deemed to be irrelevant. 1 (Submitted) Statements of facts in issue, or relevant or deemed to be relevant to the issue, made in published maps or charts generally offered for public sale as to matters of public notoriety, such as the relative position of towns and countries, and such as are usually repre- sented or stated in such maps or charts, are themselves N. Y. C. R. Co., 34 Hun, 224 ; Railroad Co. v. Cutinington, 39 O. St. 327 ; Chase v. Sycamore, etc. R. Co., 38 111. 215); nor even against a member or director, of his contracts or private dealings with the company, for in that respect he is to be deemed a stranger (Haynes v. Brown, 36 N. H. 545 ; Ruddv. Robinson, 126 N. Y. 113). The stock books of a corporation are prima facie evidence to show who are its stockholders ( Turnbull v. Payson, 95 U. S. 418 ; Vattder- iverken v. Glenn, 85 Ya. 9 ; Lehman v. Glenn, 87 Ala. 618). The right of a stockholder to inspect the books may be enforced by mandamus in proper cases (Phoenix Iron Co. v. Commonwealth, 113 Pa. 563 ; People v. Pacific Mail Co., 50 Barb. 280). As to entries in other books of a private or guasi-offycia.] character, see Art. 27, ante.] 1 See cases in 2 Ph. Ev. 155-6, and Read v. Bishop of Lincoln, [1892] A. C. 644, at pp. 652-4. [McKinnon v. Bliss, 21 N. Y. 206, 216; Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Crillx. Rome, 47 How. Pr. 400 ; Morris v. Manner, 7 Pet. 554 ; State v. Wagner, 61 Ale. 178, 188 ; Spalding v. Hedges, 1 Pa. 240, 243. These cases favor the view that if the author is living, he should be called as a witness to be exam- ined as to the sources and accuracy of his knowledge. Mere local tries arc nut admitted in evidence. Roe v. St/vug, 107 X. Y. 350.] Chap. IV.] THE LAW OF EVIDENCE. 115 deemed to be relevant facts; 1 but such statements are irrelevant 2 if they relate to matters of private concern, or 1 In P. v. Orton, maps of Australia were given in evidence to show the situation of various places at which the defendant said he had lived. 8 E.g., a line in a tithe commutation map, purporting to denote the boundaries of A's property, is irrelevant in a question between A and B as to the position of the boundaries : Wilberforce v. Hearfield, 5 Ch. Div. 705, and see Hammond \. , 10 Ex. 390. [As a general rule, maps, surveys, and plans of land are not competent evidence, unless their accuracy is shown by other evidence in the case {Johnston \. Jones, 1 Black, 209 ; Donohue v. Whitney, 133 N. Y. 178 ; Comm. v. Switzer, 134 Pa. 383 ; Burwell v. Sneed, 104 N. C. 118 ; Wilkinson v. State, 106 Ala. 23 ; Rowland v. McCoivn, 20 Or. 538 ; Whitehouse v. Bickford, 29 N. H. 471), as e. g., by the- testimony of the surveyors who prepared them (Curtiss v. Ayrault, 3 Hun, 487). But a map of public land, made by a public surveyor, and duly certified and filed in a public office, as prescribed by statute, is admissible perse {People v. Denison, 17 Wend. 312 ; S. P. Comm. v. King, 150 Mass. 221 ; Henry v. Dulle, 74 Mo. 443 ; Galvin v. Palmer, 113 Cal. 46). Ancient maps,, duly authenticated as genuine, are admissible, to show matters of public and general right {Lawrence v. Tennant, 64 N. H. 532 ; Mc- Cattslandv. Fleming, 63 Pa. 36 ; cf. Missouriv. Kentucky, II Wall. 395 ; see Art 30, ante) ; or, in some States, to establish private boundaries {Gibson v. Poor, 21 N. H. 440; Whitmans. Shaw, 166 Mass. 451) But an ancient map of partition, showing the division of land among private owners, is not evidence of title {Jackson v. Witter, 2 Johns. 180). Where a plan or map of land is prepared, and is referred to in making conveyances of such land, it is evidence to show boundary or location, or to explain the contract {Clark v. N. Y. Life Ins. Co., 64 X. V. 33; Kingslandv. Chittenden, 6 Lans. 15 ; Crawford V. Loper, 25 Barb. 449). So in dedicating land to the public {Derby v. Ailing, 40 Ct. 410). But if made by a stranger without authority, it cannot be received to vary or contradict a title under a previous deed {Marble v. McMinn, 57 Barb. 610 ; ct. Jackson v. Frost, 5 Cow. 346). Sometimes maps are admissible by statute, as e.g., maps of the public canals of New York {Carpenter v. Co hoes, 81 N. Y. 21). Some other rules as to the admissibility of books, papers, etc., may here be noticed. Thus it is generally held that a medical or other scientific treatise is not competent evidence to prove the truth of matters stated therein {Comm. v. Sturtivant, 117 Mass. 122; Harris n6 A DIGEST OF [Part I. matters not likely to be accurately stated in such docu- ments. v. Panama R. Co., 3 Bos. 7 ; Fox v. Peninsular, etc. Works, 84 Mich. 676; Gallagher v. Market St. R. Co., 67 Cal. 13 ; Epps v. State, 102 Ind. 539; Boyle v. State, 57 Wis. 472 ; contra, Bales v. State, 63 Ala. 30 ; Burg v. Chicago, etc. R. Co., 90 la. 106 [by statute]) ; nor can such books be read in argument to the jury ( Washburn v. Cuddihy, 8 Gray, 430; Boyle v. State, supra; People v. Wheeler, 60 Cal. 581 ; but see Richmond's Appeal, 59 Ct. 226), nor given in evidence to sustain or contradict the opinion of a witness [Davis v. State, 38 Aid. 15 ; Knoll v. State, 55 Wis. 249) ; nor is it proper to examine a witness in such a way as to get the contents of such books before the jury ( Waterman v. Chicago, etc. R. Co., 82 Wis. 613 ; Lilley v. Parkinson, 91 Cal. 655 ; Marshall v. Brown, 50 Mich. 148). But such a book may be read to discredit a witness when he has referred to it as supporting his state- ments (Pinney v. Cahill, 48 Mich. 584 ; Ripon v. Bittel, 30 Wis. 614 ; N. J. Zi)ic, etc. Co. v. Lehigh, etc. Zinc Co., 59 N. J. L. 189 ; Blooming- ton v. Shrock, 1 10 111. 219 ; Hess v. Lowrey, 122 Ind. 225). An engrav- ing in a medical book is not competent evidence {Ordway v. Haynes, 50 N. H. 159). So counsel should not in general be allowed to read to the jury extracts from other books or from newspapers {Baldwin v. Bricker, 86 Ind. 221 ; Williams v. Brooklyn Elev. R. Co., 126 N. Y. 96). The reading of law books by counsel to the jury is sanctioned in some States (N. &> W. R. Co. v. Harmon's .ldmr.,83 Va. 553 ; Hannah v. Slate, 11 Lea, 201), prohibited in others [Yarbrough v. State, 105 Ala. 45 ; Lendberg v. Iron Mining Co., 75 Mich. 84 ; Steffenson v. Chicago, etc. R. Co., 48 Minn. 285), but in many States is subject to the discre- tion of the trial court, which may permit or refuse or limit the privilege (Comm. v. Hill, 145 Mass. 305; State v. Fitzgerald, 130 Mo. 407; Gregory v. Ohio Riv. R. Co., 37 W. Va. 606 ; Blum v. Jones, 86 Tex. 492 ; People v. Anderso?i, 44 Cal. 65 ; Curtis v. Stale, 36 Ark. 284 ; cf. Williams v. Brooklyn Elev. R. Co., 126 N. Y. 96). In some States, moreover, where the jury are, in criminal cases, judges of the law as well as of the facts, such reading of lawbooks is matter cf right in criminal cases, but not permissible in civil cases ( Wohlford v. People, 148 111. 296 ; Stout v. State, 96 Ind. 407 ; Johnson v. Culver, 1 16 Ind. 278 ; State v. Whitmore, 53 Kan. 343 ; Hudson v. Hudson, 90 Ga. 582; Powell v. State, 65 Ga. 707). A price current list, if shown by extrinsic evidence to be reliable, is competent to prove market value {Cliquofs Champagne, 3 Wall. 114; Whelan v. Lynch, 60 X. Y. 469; Seligman v. Rogers, 113 Mo. 642 ; see Whitney v. Thacher, 117 Mass. 523 ; Peter v. Thickstun, 51 Mich. Chap. IV.] THE LAW OF EVIDENCE. Articles 36, 37, 38. entries in bankers' books. 1 5^Art Article 39.* JUDGMENT. The word "judgment " in Articles 40-47 means any final judgment, order, or decree of any court. The provisions of Articles 40-45, inclusive, are all sub- ject to the provisions of Article 46. Article 40. all judgments conclusive proof of their legal effect. All judgments whatever are conclusive proof as against all persons of the existence of that state of things which * See Note XXIII. [Appendix]. 589); standard life and annuity tables, as the Northampton or Carlisle tables, to show expectancy of life ( Vicksburg, etc. R. Co. v. Putnam, 1 1 8 U. S. 545 ; Sauter v. N. Y. C R. Co., 66 N. Y. 50 ; Steinbrunner v. Pitts- burgh, etc. R. Co., 146 Pa. 504 ; De7iman v. Johnston, 85 Mich. 387; Joliet v. Blower, 155 111. 414); an almanac to show time of sunrise, etc. {State v. Morris, 47 Ct. 179; Munshower v. State, 55 Md. 11). So market reports. have been received (Aulls v. Young, 98 Mich. 231 ; cf. Vogt v. Cope, 66 Cal. 31), and a weather record kept at a State asylum {De Armondv. Neasmith, 32 Mich. 231). But a gazetteer is not ad- missible to prove relative distances of places {Spalding v. Hedges, 2 Pa. 240), nor an encyclopaedia to prove facts of recent occurrence stated therein ( IVhiton v. Albany, etc. Bis. Co., 109 Mass. 24 ; cf. Wor- den v. Humeston, etc. R. Co., 76 la. 310); nor are law reports of for- merly decided cases competent to prove the facts of those cases {Mackay v. Easton, 19 Wall. 619), nor to prove a local custom of trade. Iron Cliffs Co. v. Buhl, 42 Mich. 86.] 1 [Articles 36, 37, and 38 state the provisions of special English statutes relating to entries in bankers' books. As they are peculiar to English law, they are not retained here in the text, but will be found in the Appendix, Note XLIX. As to the admissibility of corpo- ration books in this country, see Articles 27 and 34, ante, and notes.] n8 A DIGEST OF [Part I. they actually effect, when the existence of the state of things so effected is a fact in issue or is, or is deemed to be, relevant to the issue. 1 The existence of the judgment effecting it may be proved in the manner prescribed in Part II. Illustrations. (a) The question is, whether A has been damaged by the negligence of his servant B in injuring C's horse. A judgment in an action, in which C recovered damages against A, is conclusive proof as against B, that C did recover damages against A in that action. 2 (/;) The question is, whether A, a shipowner, is entitled to recover as for a loss by capture against B, an underwriter. A judgment of a competent French prize court, condemning the ship and cargo as prize, is conclusive proof that the ship and cargo were lost to A by capture. 3 (c) The question is, whether A can recover damages from B for a malicious prosecution. The judgment of a court by which A was acquitted is conclusive proof that A was acquitted by that court. 4 (d) A, as executor to B, sues C for a debt due from C to B. 1 [Gr. Ev. i. §§ 527, 538, 539 ; Dorrellv. State, 83 Ind. 357 ; Chamber- lain v. Carlisle, 26 X. H. 540 ; Wadsworth v. Sharpsteen, 8 N. Y. 388 ; Spencer v. Dearth, 43 Vt. 98, 105 ; Harrington v. Wadsworth, 63 N. H. 400; Aron v. Chaffe, 72 Miss. 159; Smith v. Chapin, 31 Ct. 530. Thus when a judgment forms a muniment of title or a link in a chain of title, it is competent evidence, not only as against parties and privies, but also as against strangers. Gage v. Goudy, 141 111. 215 ; Murray v. Deyo, 10 Hun, 3 ; Railroad Equipment Co. v. Blair, 1 15 X. Y. 607.] 3 Green v. New River Company, 4 T. R. 590. See Article 44, Illus- tration (a). [See Kip v. Brigham, 7 Johns. 168 ; Dubois v. Hermance, 56 X. Y. 673 ; Masser v. Strickland, 17 S. & R. 354 ; and post, Art. 44, Illustration (ad).] : Involved in Geyer v. Aguilar, 7 T. R. 681 ; [cf. Rose v. Himely, 4 Cr. 241.] 4 Leggatt x. Tollervey, 14 Ex. 301 ; and see Caddy v. Barlow, 1 Man. & R. 277. [See Sayles v. Briggs, 4 Met. 421 ; Burt v. Place, 4 Wend. 59I.] Chap. IV.] . THE LAW OF EVIDENCE. 119 The grant of probate to A is conclusive proof as against C, that A is B's executor. 1 (e) A is deprived of his living by the sentence of an ecclesiastical court. The sentence is conclusive proof of the fact of deprivation in all cases. 2 (/) A and B are divorced a vinculo matrimonii by a sentence of the Divorce Court. The sentence is conclusive proof of the divorce in all cases. 3 1 Allan v. Dundas, 3 T. R. 125-130. In this case the will to which probate had been obtained was forged. [Kelly v.lVest, 80 N. Y. 139 ; N. Y. Code Civ. Pro. § 2591 ; Emery v.Hildrelh, 2 Gray, 228 ; Day v. Floyd, 130 Mass. 488 ; Mutual Ins. Co. v. Tisdale, 91 U. S. 238, 243 ; Steen v. Bennett, 24 Yt. 303 ; Quidort v. Pergeaux, 18 N. J. Eq. 472. So as to guardian (Farrar v. Olmstead, 24 Vt. 123); or receiver ( Whittlesey v. Frantz, 74 N. Y. 456); or trustee (Basselt v. Crafts, 129 Mass. 513). But the grant of administration upon the estate of a living person is wholly void for lack of jurisdiction (Stevenson v. Superior Ct., 62 Cal. 60 ; Jochumsen v. Suffolk Sav. Bk., 3 Allen, 87; Melia v. Simmons, 45 Wis. 334; Springer \. Shavender, 118 N. C. 33; Thomas v. People, 107 111. 517; Devlin v. Comm., 101 Pa. 273; Lavin v. Emigrant Sav. Bk., 18 Blatch. 1, 36 ; cf. Plume v. Howard Sav. Inst., 46 N. J. L. 211). But in New York, by statute, the deter- mination by the surrogate of the fact of death is deemed conclusive, so far as to render the acts of the administrator valid until his authority is revoked (Roderigas v. East River Sav. Inst., 63 N. Y. 460); but this power of the surrogate does not extend to his clerk (S. C. 76 N. Y. 316; cf. Bolton v. Schriever, 135 N. Y. 65 ; Davis v. Greve, 32 La. Ann. 420). The U. S. Supreme Court, however, holds that a State law declaring a judicial determination that a man is dead conclusive upon him, though he was not served with process, and vesting his property in his administrator, is void, as depriving him of his property without due process of law. Scott v. McNeal, 154 U. S. 34-] * Judgment of Lord Holt in Philips v. Bury, 2 T. R. 346, 351 ; [cf. Boulditi v. Alexander, 15 Wall. 131.] 3 Assumed in Needham v ■. Bremner, L. R. 1 C. P. 582. [Hood v. Hood, no Mass. 463 ; Burlenv. Shannon, 3 Gray, 387 ; Hunt v. Hunt, 72 N. Y. 217; In re Eickhoff, 101 Cal. 600; as to impeaching the judgment for lack of jurisdiction, see People v. Baker, 76 N. Y. 78 ; Adams v. Adams, 154 Mass. 290. 1 120 A DIGEST OF [Part I. (.£") [The question is, whether A, an alien born, is a citizen of the United States. The record of a judgment of a competent court admitting him to become a citizen and reciting the facts which entitled him to such judgment is conclusive proof of his citizenship.] 1 JUDGMENTS CONCLUSIVE AS BETWEEN PARTIES AND PRIVIES OF FACTS FORMING GROUND OF JUDGMENT. Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case, actually decided by the court, and appearing 2 from the judgment 1 [McCarthy v. Marsh, 5 N. Y. 263 ; Mutual Ins. Co. v. Tisdale, 91 U. S. 238, 245 ; People v. McGowan, 77 111. 644 ; State v. Macdonald, 24 Minn. 48 ; see Behrensmeyer v. Kreitz, 135 111. 591,630.] 2 [Gr. Ev. i. § 528 et seq. ; Shaw v. Broadbent, 129 N. Y. 114; Mar- stellerv. Marsteller, 132 Pa. 517; Orthwein v. Thomas, 127 111. 554; Sanderson v. Peabody, 58 N. H. 116. But it is generally held in this country that a judgment is conclusive between parties and privies as to facts actually decided, whether these do or do not appear upon the record ; such as do not so appear may be shown by parol evidence to have been litigated and determined {Campbell v. Ra?ikin, 99 U.S. 261 ; Bowe v. Wilkins, 105 N. Y. 322 ; Stone v. St. Louis Stamping Co., 155 Mass. 267 ; Title Co. v. Shallcross, 147 Pa. 485 ; Harding v. Bader, 75 Mich. 323 ; Pahner v. Sanger, 143 111. 34 ; Perkins v. Brazos, 66 Ct. 248 ; Stale v. Waterman, 87 la. 255 ; see Art. 44, Illustration (cc)). But such evidence must not contradict the record ( Wilson's Excr. v. Deen, 121 U. S. 525; Lorillard v. Clyde, 122 N. Y. 41 ; Embden v. Lisherness, 89 Me. 578). A judgment binds one who is a real party in interest, even if he is not a party of record {Marsh v. Smith, 73 la. 295 ; Cheney v.Patton, 144 111. 373 ; Claflin v. Fletcher, 10 Biss. 281). A judgment ts said to be conclusive not only as to matters which were, but also as to those which, under the issues, might have been, litigated and determined in the action {Pray v. Hegeman, 98 N. Y. 351 ; Huntley v. Holt, 59 Ct. 102 ; Wright v. Anderson, 1 17 Ind. 315 ; Bassett v. Ct. Riv. R. Co., 150 Mass. 178 ; Diamond State Iroti Co. v. Rarig, 93 Ya. 595 ; Pctersine v. Thomas, 28 O. St. 596). Thus, if part of a single cause of action be sued on and judgment recovered, it bars (map. IV.] THE LAW OF EVIDENCE. 121 itself to be the ground on which it was based ; unless an action for the residue (Illustrations (ham v. Faverisjeat^"r^ 140 Mass. 41 1. 1 134 A DIGEST OF [Part I. sues now expressly on the ground that B's wife had left him for his cruelty. The former judgment is conclusive evidence that B's wife was absent from him during the prior period for some justifiable cause, but not that that cause was his cruelty, unless the jury find, from parol evidence submitted to show what was proved in the former trial, that the former jury gave their verdict on the ground of cruelty.] ' {d) A is prosecuted and convicted as a principal felon. B is afterwards prosecuted as an accessory to the felony committer by A. The judgment against A is deemed to be irrelevant as against B, though A's guilt must be proved as against B. 2 (n, 71 Mo. 358 ; People v. Dawell, 25 Mich. 247 ; Pennywit v. Foote, 27 O. St. 600 ; Gilman v. Gilman, 126 Mass. 26); so they may be avoided for fraud in acquiring jurisdiction over the person {Stanton v. Crosby, 9 Hun, 370 ; Toof v. Fooley, 87 la. 8 ; cf. Brown v. Eaton, 98 Ind. 591). So fraud otherwise committed in procuring the judgment (if the party was debarred, without fault on his part, from availing himself of such fraud as a defence in the original suit), would be a sufficient ground in equity to have the judgment set aside {Doughty v. Doughty, 27 N. J. Eq. 315 ; Payne v. O' Shea, 84 Mo. 129 ; cf. Davis v. Cornice, 151 N. Y. 172), and may be set up in some States as an equitable defence to the judgment {Dobso?i v. Pearce, 12 N. Y. 156 ; Rogers v. Gwinn, 21 la. 58 ; Keeler v. Elston, 22 Neb. 310 ; see Hunt v. Hunt, 72 N. Y. 217). Except in equity, however, fraud in obtaining such a judgment is not i 4 o A DIGEST OF [Part a sufficient defence to an action upon it {Simmons v. Suit/, 138 I . S. 439,459; Allison v. Chapman, [9 F. R. 488; see Mooney v. /finds, 160 Mass. 469; Ambler x. Whipple, 139 111. 311). Such judgments are, moreover, not impeachable upon the merits for error or for irregu- larity {Pringie v. Woodworth, 90 N. Y. 502 ; Christmas v. Russell, 5 Wall. 290 ; Harryman v. Roberts, 52 Md. 64 ; National Bk. v. Wallis, 59 N. J. L. 46 ; see Nichols v. Nichols, 25 N. J. Eq. 60). Similar principles apply to foreign judgments. They may be im- peached for lack of jurisdiction, but are generally held to be conclu- sive upon the merits {Ritchie v. McMullen, 159 U. S. 235 ; Dunstan v. Higgins, 138 N. Y. 20; Shepardv. Wright, 113 N. Y. 582 ; Lazier v. Westcott, 26 N. Y. 146; Fisher v. Fielding, 67 Ct. 91; McEwan v. Zimmer, 38 Mich. 765; Smith v. Grady, 68 Wis. 215; Rischcff v. Wethcrel, 9 Wall. 812 ; 7fo//* v. /fo///, 104 111. 35). It is also generally declared that they are impeachable for fraud (see cases supra ; Baker v. Palmer, 83 111. 568), but for what forms of fraud or under what cir- cumstances is wholly unsettled in this country {Hilton v. Guyot, 159 U. S. 1 13, 206, 207). An important decision of the U. S. Supreme Court holds, however, that a judgment rendered in a foreign country, as France, which does not regard our own judgments as conclusive, will not be deemed conclusive in our courts, but only prima facie evidence of the justice of the claim upon which the judgment was recovered {Hilton v. Guyot, supra). As to the effect of a judgment in another State obtained by default upon service of process by publication on a non-resident or foreign corporation and an attachment of defendant's property, see Pennoyer v.Neff,^ U. S. 714; Fitzsimons v. Marks, 66 Barb. 333; Gil man v. Gilman, 126 Mass. 26. Such judgment only avails as quasi in rem to reach the property attached, but is not valid, either in the State where rendered or in other States, as a judgment in personam (Id.; St. Clair v. Cox, 106 U. S. 350 ; National Bk. v. Peabody, 55 Vt. 492 ; Needham v. Thayer, 147 Mass. 536; Eastman v. Dearborn, 63 N. H.364; Ward v. Boyce, 152 N. Y. 191); see generally as to judgments in rem, Durant f. Abendroth,g7 N.Y. 132.] Chap. V.] THE LAW OF EVIDENCE. 141 CHAPTER V.* OPINIONS, J J 'HEX RELE VA NT A ND WHEN NO T. Article 48. opinion generally irrelevant. The fact that any person is of opinion that a fact in issue, or relevant or deemed to be relevant to the issue, does or does not exist is deemed to be irrelevant to the existence of such fact, 1 except in the cases specified in this chapter. 2 * See Note XXIV. [Appendix]. 1 [It is a general rule that witnesses must give evidence oi facts, not of opinions (Conn. Ins. Co. v. Lathrop, in U. S. 612, 618; Graham v. Pa. Co., 139 Pa. 149 ; Coatcs v. Burlington, etc. R. Co., 62 la. 486; Chamberlain v. Piatt, 68 Ct. 126; Teerpenningw. Corn Ex. Ins. Co., 43 N. Y. 279). This is especially true of opinions relating directly to the questions of law or fact at issue in the action. These are ques- tions to be determined by court or jury from the facts in evidence. Id.; Bitffum v. Jones, 144 Mass. 29; Cannon v. People, 141 111. 270; Insley v. Shire, 54 Kan. 793 ; see Illustrations (b) and (c).] 2 [Besides the exceptions stated by the author, the following are recognized: (1) The subscribing witnesses to a will may state their opinions as to the testator's sanity at the time of executing the will {Egbert v. Egbert, 78 Pa. 326 ; Williams v. Spender, 150 Mass. 346 ; Hewlett v. Wood, 55 N. Y. 634). (2) In many States, witnesses who are not experts may state their opinion as to a person's sanity or in- sanity, in connection with a statement of the facts within their personal knowledge and observation, upon which that opinion is based (Conn. Ins. Co. v. Lathrop, in U. S. 612 ; Hardy v. Merrill, 56 N. H. 227 ; Foster s Excrs. v. Dickerson, 64 Yt. 233 ; Kimberlys Appeal, 68 Ct. 428 ; Genz v. State, 58 N. J. L. 482 ; Elcessor v. Elcessor, 146 Pa. 359 ; Stumph v. Muller, 142 Ind. 442 ; Denning v. Butcher, 91 la. 425 ; N. Y. etc. R. Co. v. Luebeck, 157 111. 595; Holland v. Zollner, 102 Cal. 633 ; Chase v. Winans, 59 Md. 475 ; Fishburne v. Ferguson, 84 Va. 87; Newcomb v. Newcomb, 96 Ky. 120 ; Prentis v. Bates, 93 Mich. 234; U2 A DIGEST OF [Part I. Illustrations, (a) The question is, whether A, a deceased testator, was sane or not when he made his will. His friends' opinions as to his sanity, as ex- State v. Williamson, 106 Mo. 162 ; Baughman v. Baughman, 32 Kan. 538). In New York this is not permissible, but the witness may testify to acts and declarations known or observed by him, and characterize them as rational or irrational acts or declarations (Holcomb v. Hol- comb, 95 N. Y. 316 ; People v. Strait, 148 N. Y. 566). And so in Massa- chusetts testimony of opinion as to general soundness or unsoundness of mind is not received from non-experts, but still it has been held permissible to ask such a witness whether he ever observed any fact which led him to infer that there was any derangement of intellect, or whether a person had failed mentally within a given time {May v. Bradlee, 127 Mass. 414 ; Clark v. Clark, 168 Mass. 523). (3) So gen- erally the opinions of non-experts, when based upon facts known and observed by them, are admissible as to many matters upon which men in general, without expert training, are competent to form a reliable opinion. An important reason for this rule is that if only the facts upon which such opinions were based could be stated to the jury, such facts could not usually be described so perfectly as to enable the' jury to form a just and satisfactory conclusion from them {Koccis v. State, 56 N. J. L. 44 ; Shelby v. Clagett, 46 O. St. 549 ; Laughlin v. Street A'. Co., 62 Mich. 220 ; State v. Rainsbarger, 71 la. 746). Such testimony of opinion is received as to a person's identity (State v. Dickson, 78 Mo. 438; People v. Rolfe, 61 Cal. 540); a person's age (Comm. v. O'Brien, 134 Mass. 198 ; Eisner v. Supreme Lodge, 98 Mo. 640) ; a person's appearance or state of health (Cartilage Turnpike Co. v. Andrews, 102 Ind. 138; Chicago R. Co. v. Van Vleck, 143 111. 480; Smalley v. Appleton, 70 Wis. 3401 ; whether a person was drunk or sober (Felska v. N. Y. C. R. Co., 152 X. Y. 339 ; Cook v. Bis. Co., 84 Mich. 12 ; Castner v. Sliker, 33 N. J. L. 507) ; sick or well (Elliott v. Van Buren, 33 Mich. 49; Robinson v. Exempt Fire Co., 103 Cal. 1 ; Higbie v. Life Ins. Co., 53 N. Y. 603 ; but not as to the nature of a sickness, Shawneetown v. Mason, 82 111. 337) ; nervous, or calm, or excited, or angry (Dimiel; v. Downs, 82 111. 570; White v. Beatty, 64 la. 333) ; that a person had good eyesight (Adams v. People, 63 N. Y. 621) ; that a horse was frightened or tired (Darling v. Westmoreland, 52 X. H. 401 ; State v. Ward, 61 \'t. 153) ; that a highway was in good repair or was dangerous (A'elleher v. Keokuk, 60 la. 473; Ryan v. Bristol, 63 Ct. 26) ; and many like matters. See many illustrations given in Sydleman v. Beckwith, 43 Ct. 9 ; Hardy v. Merrill, 56 X. H. 227; Comm. v. Sturtivant, 117 Mass. 122; McKillop \ . Duluth R. Co., 53 Minn. 532 ; see Illustrations (d) and (e).] Chap. V.] THE LAW OF EVIDENCE. 143 pressed by the letters which they addressed to him in his lifetime, are deemed to be irrelevant. 1 (b) [An action is brought to recover damages for a tort or breach of contract, or compensation is sought for land taken by eminent domain. The opinions of witnesses as to the amount of damage sustained by the plaintiff from the act complained of are deemed to be irrelevant. The jury are to estimate the damages from the facts proved.] 2 1 Wright v. Doe d. Tat ham, 7 A. & E. 313; [as to this case, see Conn. Ins. Co. v. Lathrop, m U. S. 612, 622 ; People v. Montgomery, 13 Abb. Pr. (N. S.) 207, 249.] 2 {Morehouse v. Mathews, 2 N. Y. 514 ; Roberts v. N. Y. El. R. Co., 128 N. Y. 455; Bain v. Cushman, 60 Vt. 343; Railway Co. v. Gardner, 45 O. St. 309; Hartley v. Keokuk, etc. R. Co., 85 la. 455 ; Spencer v. Metropolitan R. Co., 120 Mo. 154 ; Atchison, etc. R. Co. v. Wilkinson, 55 Kan. 83 ; Jameson v. Kent, 42 Neb. 412 ; but in some States such testimony is admissible {Chicago, etc. R. Co. v. Nix, 137 III. 141 ; Portland, etc. R. Co. v. Deering, 78 Me. 61 ; Shattuck v. Stoneham R. Co., 6 Allen, 115). It is a general rule, however, that evidence of opinion as to the value of houses, lands, chattels, medical, legal, or other services, etc., will be received from persons having special knowledge and experience concerning such matters (Hills v. Home Ins. Co., 129 Mass. 345 ; Shea v. Hudson, 165 Mass. 43 ; Montana R. Co. v. Warren, 137 U. S. 348; McElhenyv. Bridge Co., 153 Pa. 108; Wallace v. Schaub, 81 Md. 594; Louisville, etc. R. Co. v. Wallace, 136 111. 87 ; Edgecomb v. Buckhout, 146 N. Y. 332 ; Whiton v. Snyder, 88 N. Y. 299; Reynolds v. Robinson, 64 N. Y. 589). This is in the nature of expert testimony, though it is not necessary that a witness as to the value of property should be a skilled expert, in the strict sense of that term (Kelley v. Richardson, 69 Mich. 430 ; Erickson v. Draskowski, 94 id. 551 ; Latham v. Brown, 48 Kan. 190) ; thus not only real estate brokers or appraisers, but also other persons conversant with land values in a certain locality, may testify as to the value of a particular lot or farm there situated {Clark v. Baird, 9 N. Y. 183 ; Blake v. Griswold, 103 N. Y. 429 ; Lyman v. Boston, 164 Mass. 99 ; Lee v. Springfield Co., 176 Pa. 223 ; Mayor of Baltimore v. Smith, 80 Md. 458; Pike v. Chicago, 155 111. 656; Kansas City R. Co. v. Eh ret, 41 Kan. 22 ; but see Laing v. United N. J. R. Co., 54 N. J. L. 576). But such opinion evidence is not necessarily controlling upon the judgment of the jury (Head v. Hargrave, 105 U. S. 45)- Evidence of opinion has been received as to the value of land both [ 4 4 A DIGEST OF [Part I. (c) [The question is, which of two deeds conveys a greater right. A witness cannot be examined as to his opinion upon this point.] 1 (d) [In an action for breach of promise of marriage, the question is whether the plaintiff was sincerely attached to the defendant. Witnesses who lived with the plaintiff during the courtship and ob- served her deportment may give in evidence their opinions upon this question.] 2 (e) [The question is, upon a trial for murder, whether certain hairs are human hairs and like the hair of the deceased. Witnesses, who knew the deceased, may state their opinions on this point, though they are not experts.] 3 Article 49. opinions of experts on points of science or art. When there is a question as to any point of science or art, the opinions upon that point of persons specially skilled in any such matter are deemed to be relevant facts. Such persons are hereinafter called experts. The words "science or art" include all subjects on which a course of special study or experience is neces- sary to the formation of an opinion, 4 and amongst others the examination of handwriting. before and after an injury thereto, or before and after a part thereof has been taken by eminent domain {Sexton v. N. Bridgewater, 116 Mass. 200; Carter v. Thurston, 58 N. H. 104 ; Lewis v. Springfield Co., 176 Pa. 230). This is not only allowed in States which receive opinion evidence as to damages (Id.; Snow v. B. &* M. R. Co., 65 Me. 230), but also in States which reject such evidence. Yost v. Con- roy, 92 Ind. 464 ; Cleveland, etc. R. Co. v. Ball, 5 O. St. 568 ; Roberts v. N. Y El. R. Co., 128 N. Y. 455, 467.] 1 [Bennett v. Clenicnce, 6 Allen, 10.] 2 \McKee v. Nelson, 4 Cow. 355 ; see Vanderpool v. Richardson, 52 Mich. 336; State v. Stackhonse, 24 Kan. 445.] z [Comm. v. Dorsey, 103 Mass. 412.] 4 1 S. L. C. 555, 7th ed. (note to Carter v. Bochin); 28 Vict. c. 18, s. 18. [Gr. Ev. i. § 440 ; Spring Co. v. Edgar, 99 U. S. 645, 657 ; Jones v. Chap. V.] THE LAW OF EVIDENCE. 145 When there is a question as to a foreign law, the opin- ions of experts who in their profession are acquainted with such law are the only admissible evidence thereof, though such experts may produce to the court books which they declare to be works of authority upon the foreign law in question, which books the court, having received all necessary explanations from the expert, may construe for itself. 1 Tucker, 41 N. H. 546 ; Coyle v. Comm., 104 Pa. 1 17 ; Muldowney v. ///. Cent. R. Co., 36 la. 462 ; Ferguson v. Hubbell, 97 N. Y. 507. An expert may not only testify to opinions, but may state general facts which are the result of scientific knowledge {Emerson v. Lowell Gas Co., 6 Allen, 146) ; or may testify as to the natural and reasonably probable future consequences of a certain state of facts concerning which his special knowledge qualifies him to judge (Slrohm v. A 7 . Y. etc. R. Co., 96 N. Y. 305 ; Louisville, etc. R. Co. v. Lucas, 119 Ind. 583 ; Clason v. Milwaukee, 30 Wis. 316; cf. Turner v. Newburgh, 109 N. Y. 301). But the opinions of experts are not admissible upon matters of com- mon knowledge ; as these are within common observation and ex- perience, the jurors are deemed qualified to judge without expert aid {Ferguson v. Hubbell, supra ; Milwaukee R. Co. v. Kellogg, 94 U. S. 469; N.J: Traction Co. v. Brabban, 57 N. J. L. 691 ; Hughes v. Richter, 161 111. 409; Stumore v. Shaw, 68 Md. 11 ; Doonerx. Canal Co., 164 Pa. 17 ; Knoll v. State, 55 Wis. 249; see Illustrations £■ and h). Nor, in general, is expert testimony received as to the very point in issue in the case (Illustration (7); Seymour v. Fellows, 77 N. Y. 180; Buxton v. Somerset Works, 121 Mass. 446; Noonanv. Stale, 55 Wis. 258 ; ///. Cent. R. Co. v. People, 143 111. 434); though this is sometimes permis- sible, when the jury need such aid to properly decide the question. Transportation Line v. Hope, 95 U. S. 297 ; Van Wycklen v. Brook- lyn, 118 N. Y. 424 ; Quinn v. N. Y. etc. R. Co., 56 Ct. 44.] 1 Baron de Bodes Case, 8 Q. B. 250-267 ; Di Sora v. Phillipps, 10 H. L. 624 ; Castrique v. Lmrie, L. R. 4 E. & I. App. 434 ; see, too, Pictons Case, 30 S. T. 510-51 1. [That the unwritten or common law of other States or countries may be proved by expert testimony is well settled in this country (Mowry v. Chase, 100 Mass. 79; Funis v. Smith, 14 How. (U. S.) 400 ; Jenne v. Harrisville, 63 N. H. 405 ; In re Roberts' Will, 8 Pai. 446), and is often declared in statutes, which also gener- ally provide that in proving the common law of another State or Ter- ritory in the United States, the books of reports of cases may be given i 4 6 A DIGEST OF [Part I. It is the duty of the judge to decide, subject to the opinion of the court above, whether the skill of any per- son in the matter on which evidence of his opinion is in evidence (see e.g., N. Y. Code Civ. Pro. § 942 ; Maine Rev. St. c. 82, ss. 108, 109; Mass. Pub. St. c. 169, ss. 72, 73; 1 N. J. Rev. p. 381 ; 2 How. St. (Mich.) §§ 7508, 7509). Sometimes the latter provision is also ex- tended to the law of foreign countries (Id. ; see The Pawashick, 2 Lowell, 142). In proof of foreign written law, expert evidence is deemed admis- sible in some States, either with or without a copy of such law {Bar- rows v. Downs, 9 R. I. 446 ; Hall v. Costello, 48 X. H. 176 ; see Hen- nessy v. Farrelly, 13 Daly, 468); but sometimes statutes provide that such evidence may be rejected, unless accompanied by such a copy {Pierce v'.Indseth, 106 U. S. 546 ; see statutes supra). But other modes of proof are also in common use, as by an officially printed volume of the law or a duly authenticated copy (see Art. 84, post). This is the generally established mode of proving the statute law of Congress or of the sister States (see Art. Si, post). An expert or other credible witness may testify as to the official or authoritative character of the printed volume, etc. {Pacific Gas Co. v. W'heelock, 80 N. Y. 278; Hynes v. McDermott, 82 N. Y. 41, 54 ; Spaulding v. Vincent, its, Vt. 501; Dundee Mortgage Co. v. Cooper, 26 F. R. 665). The construc- tion of a statute of another State by the courts of that State may be shown by expert testimony or by the law reports of that State or by both {Bollinger v. Gallagher, 163 Pa. 245, 170 Pa. 84). The expert is usually a lawyer of the State or country whose law is to be proved, but the testimony of other persons acquainted with the law may be received in proper cases ( Vander Donct v. Thellusson, 8 C. B. 812; Pickardv. Bailey, 26 N. H. 152; American Life Ins. Co. v. Rosenagle, 77 Pa. 507). Evidence of the foreign law must be first introduced in the trial court, not in the appellate court. The question what the foreign law is is usually deemed a question of fact, unless it involves merely the construction of a written statute or judicial opinion, when it is a ques- tion of law {Hanley v. Donoghue, 116 U. S. 1; UJfordx. Spaulding, 156 Mass. 65 ; Molsons Bk. v. Boardman, 47 Hun, 135 ; Alexanders. Pennsylvania Co., 48 O. St. 623). In the absence of proof of the for- eign law or that of another State, the law of the forum is applied (Me- Intyre v. B. Article 53. OPINION AS TO EXISTENCE OF MARRIAGE, WHEN RELEVANT. When there is a question whether two persons are or are not married, the facts that they cohabited and were treated by others as man and wife are deemed to be rele- vant facts, and to raise a presumption that they were lawfully married, and that any act necessary to the va- lidity of any form of marriage which may have passed between them was done ; but such facts are not sufficient to prove a marriage in a prosecution for bigamy or in proceedings for a divorce, or in a petition for damages against an adulterer. 1 mitted upon cross-examination of the person whose signature, etc., is in question, or when the writing is made at the request of the opposite party who offers it for comparison {Chandler v. LeBarron, 45 Me. 534 ; People v. De Kroyft, 49 Hun, 71 ; U. S. v. Mullaney, 32 F. R. 370; Bradford v. People, 22 Col. 157; King v. Donahue, no Mass. 155). Nor may a person's signature, counterfeited by another, be submitted to expert witnesses on cross-examination, to test their capacity as experts or their knowledge of the person's handwriting {Gaunt v. Harkness, 53 Kan. 405 ; Rose v. First Nat. Bk., 91 Mo. 399). Letterpress copies cannot be used for comparison {Cohen v. Teller, 93 Pa. 123 ; Co/n/11. v. Eastman, 1 Cus'h. 189). But photographic copies may be, when the originals are also before the court {Hynes v. McDermott, 82 N. Y. 41 ; Marcy v. Barnes, 16 Gray, 161 ; but see To?ne v. Parkersburgh, etc. R. Co., 39 Md. 36). Experts in handwriting may also testify to other matters ; as e.g., whether a writing is forged or altered, when a writing was probably made, whether all its parts are in the same handwriting, what certain words, difficult to decipher, really are, etc. Travis v. Brown, 43 Pa. 9; Witheev. Rowe, 45 Me. 571; Dreslerv. Hard, 127 N. Y. 235; Pearson v. Hardin, 95 Mich. 360 ; Eisfieldx. Dill, 71 la. 442.] 1 Morris v. Miller, 4 Burr. 2057 ; Birt v. Barlow, 1 Doug. 170 ; and see Calherwoodv. Caslon, 13 M. & W. 261. Compare R. v. Main- waring, D. & B. 132. See, too, De Thoren v. A. G., 1 App. Cas. 686 ; Piers v. Piers, 2 H. & C. 331. Some of the references in the report of De Thoren v. A. G. are incorrect. This Article was not ex- pressed strongly enough in the former editions. [Gall v. Gall, 114 156 A DIGEST OF [Part 1. Article 54. grounds of opinion, when deemed to be relevant. Whenever the opinion of any living person is deemed to be relevant, the grounds on which such opinion is based are also deemed to be relevant. 1 Illustratio7i. An expert may give an account of experiments performed by him for the purpose of forming his opinion. 2 N. Y. 109 ; Greenawalt v. McEnelley, 85 Pa. 352 ; Maryland v. Bald- win, 1 12 U. S. 490 ; Wallaces Case, 49 N. J. Eq. 530 ; Peet v. Peet, 52 Mich. 464 ; White v. White, 82 Cal. 427 ; Jackson v. Jackson, 80 Md. 176, 82 Md. 17 ; Mass. Pub. St. c. 145, s. 31. Cohabitation and repute do not, however, constitute marriage ; they are only evidence of mar- riage, and the presumption of marriage arising therefrom may be rebutted (Collins v. Voorhees, 47 N. J. Eq. 555 ; Grimm's Estate, 131 Pa. 199 ; Clayton v. War dell, 4 N. Y. 230). Such evidence of repute, etc., has been deemed sufficient to prove a marriage in bastardy proceedings (State v.Worthingham, 23 Minn. 528), but not in criminal prosecutions for bigamy, incest, adultery, loose and lascivious cohabitation, nor in actions fur criminal conver- sation (Hayes v. People, 25 N. Y. 390 ; Green v. State, 21 Fla. 403 ; State v. Roswell, 6 Ct. 446 ; State v. Hodgskins, 19 Me. 155 ; Dann v. Kingdom, 1 T. & C. 492 ; Co7nm. v. Littlejohn, 15 Mass. 163 ; Hutch- ins v. Kimmell, 31 Mich. 126 ; Hilcr v. Peojle, 156 111. 511; cf. State v. Sherwood, 68 Vt. 414 ; State v. Cooper, 103 Mo. 266). But in some States it is deemed sufficient in divorce suits (Bishop, M. D. & S. ii. §§ 746-758 ; see Collins v. Collins, 80 N. Y. 10). A marriage may generally be proved by admissions either in civil or criminal cases (Miles v. State, 103 U. S. 304 ; Womack v. Tankersley, 78 \'a. 242 ; State v. Wylde, no N. C. 500 ; but see Eisenlord v. Clum, 126 N. Y. 552, 562); especially is this true if evidence of cohabitation and repute be superadded. Id.; State v. Hughes, 35 Kan. 626.] 1 [Thus the expert may state his reasons for his opinion. Hawkins v. Fall River, 1 19 Mass. 94 ; Steam Mill Co. v. Water Power Co., 78 Me. 274.] 2 [Eidt v. Cutter, 127 Mass. 522 ; Sullivan v. Comm., 93 Pa. 284 ; Moore v. State, 96 Tenn. 209 ; Linsday v. People, 63 N. Y. 143, 156 ; People v. Morrigan, 29 Midi. 5. So an expert may be permitted to Chap. V.] THE LAW OF EVIDENCE. 157 perform experiments before the jury, or make illustrations on a black- board, to explain his testimony {Leonard v. Southern Pac. Co., 21 Or. 555; AIcKayx. Lasher, 121 N. Y.477; Pennsylvania Coal Co. v. Kelly, 1 56 111. 9). Evidence of experiments may, however, be rejected unless they were performed under conditions like those existing in the case on trial ( Comni. v. Piper, 120 Mass. 185 ; People v. Slack, go Mich. 448 ; State v. Fletcher, 24 Or. 295). Experiments performed by jurors, away from the court-room, have been held sufficient ground for a new trial. People v. Colliding, in Cal. 616.] ^ 158 A DIGEST OF [Part I. CHAPTER VI * CHARACTER, WHEN DEEMED TO BE RELEVANT AND WHEN NOT. Article 55. character generally irrelevant. The fact that a person is of a particular character is deemed to be irrelevant to any inquiry respecting his conduct, except in the cases mentioned in this chapter. Article 56. . evidence of character in criminal cases. In criminal proceedings, the fact that the person ac- cused has a good character, is deemed to be relevant ; ' but the fact that he has a bad character is deemed to be * See Note XXV. [Appendix]. 1 [Edgington v. U. S., 164 U. S. 361; People v. Sweeney, 133 N. Y. 609 ; Co?nm. v. Cleary, 135 Pa. 64 ; People v. Harrison, 93 Mich. 594 ; Jackson v. State, 81 Wis. 127. It is generally held that the proof must be of good character in respect to the trait involved in the charge ( People v. Fair, 43 Cal. 137 ; Comm. v. Nagle, 157 Mass. 554 ; Kahlen- beck v. State, 1 19 Ind. 118; Griffin v. State, 14 O. St. 55 ; State v. King, 78 Mo. 555 ; see Cancemi v. People, 16 N. Y. 501; Gr. Ev. iii. § 25). Such evidence is now generally received, whether the evidence to show the prisoner's guilt be direct or circumstantial ; even when it is direct, evidence of good character may affect its credibility, or tend to create a doubt as to guilt (Id.; Remsen v. People, 43 N. Y. 6 ; People v. Jassifio, 100 Mich. 536 ; State v. Keefe, 54 Kan. 197 ; Comm. v. Leonard, 140 Mass. 473 ; State v. Howell, 100 Mo. 628 ; State v. Rod- man, 62 la. 456). If defendant fails to offer evidence of his good char- acter, no presumption arises that he is guilty of the offence charged or that he is of bad character. People v. Evans, 72 Mich. 367.] Chap. VI.] THE LAW OF EVIDENCE. 159 irrelevant, unless it is itself a fact in issue, or unless evi- dence has been given that he has a good character, in which case evidence that he has a bad character is ad- missible. 1 2 In this Article the word "character" means reputation as distinguished from disposition, and evidence may be given only of general reputation and not of particular acts by which reputation or disposition is shown. 3 Article 57. character as affecting damages. 4 In civil cases, the fact that a person's general repu- tation is bad may, it seems, be given in evidence in reduction of damages ; but evidence of rumors that his reputation was bad, and evidence of particular facts 1 [People v. White, 14 Wend, in ; State v. Lapage, 57 N. H. 245 ; State v. Hull, 18 R. I. 207 ; People v. Fair, 43 Cal. 137. But when de- fendant becomes a witness in his own behalf, he may be impeached like any other witness by proof of bad character {State v. Nelson, 98 M-o. 414 ; see post, Art. 133, note). For additional rules in criminal cases, see Art. 13^, post ; Art. 7, note 3, ante.] 2 [Just before this last paragraph, Mr. Stephen inserts in this Article certain special statutory rules of the English law. They will be found in the Appendix, Note L.] 3 R. v. Rowton, 1 L. & C. 520. \_Comm. v. O'Brien, 119 Mass. 342 ; Snyder v. Covim.,%5 Pa. 519; People v. Sharp, 107 N. Y. 427, 457; State v. Lapage, 57 N. H. 245 ; McQueen v. State, 108 Ala. 54 ; Ber- neker v. State, 40 Neb. 810. The reputation of a person must be that in his own community {C«nkcy v. People, 1 Abb. Dec. 418 ; Cart ha us v. State, 78 Wis. 560). In Iowa and Minnesota, however, evidence of "disposition " is received, as well as of "general reputation." State v. Sterrett, 68 la. 76 ; Stale v. Lee, 22 Minn. 407.] R. v. Turberfield, 1 L. & C. 495, is a case in which the character of a prisoner became incidentally relevant to a certain limited extent. 4 [Mr. Stephen ends this Article with a paragraph stating a peculiar rule of the English law in regard to actions for libel and slander. It will be found in the Appendix, Note L.] 160 A DIGEST OF [Part I. showing- that his disposition was bad, cannot be given in evidence.' 1 Scott v. Sampson, 8 Q. B. D. 491, in which all the older cases are minutely examined in the judgment of Cave, J. [This rule is expressed too broadly by Mr. Stephen. The case of Scott v. Sampson, upon which it is based, does not state it as applicable to ail civil cases, but only to actions for libel ox slander. Evidence of a party's character is generally incompetent in civil actions (Gr. Ev. i. § 55 ; Fahey v. Crotty, 63 Mich. 383 ; Vawter v. Hultz, 112 Mo. 633 ; American Ins. Co. v. Hazen, no Pa. 530). Thus in an action for assault and battery, the defendant cannot prove the plaintiff's bad character {Corning v. Cornvig, 6 N. Y. 97 ; Bruce v. Priest, 5 Allen, 100), nor his own good character {Day v. Ross, 154 Mass. 13 ; Elliott v. Russell, 92 Ind. 526); nor can the plaintiff's bad repute be shown in an action for the seduction of his daughter {Dain v.Wyckoff, 18 N. Y. 45); nor that of a party to a note in an action thereon {Battles v. Laudenslager, 84 Pa. 446); nor the character of either party for care and prudence in an action for negligence {Mc- Donald v. Savoy, 1 10 Mass. 49 ; Chase v. Me. Cent. R. Co., 77 Me. 62 ; Holtzman v. Hoy, 1 18 111. 534 ; Hall v. Rankin, 87 la. 261). So in an action against a master for the negligence of his servant, evidence of the servant's good or bad reputation as to carefulness is excluded {Malcolm v. Fuller, 152 Mass. 160 ; Williams v. Edmunds, 75 Mich. 92), unless the question is as to the master's negligence in employing an incompetent servant {Monahan v. Worcester, 150 Mass. 439 ; Lake Shore, etc. R. Co. v. Stupalc, 123 Ind. 210 ; cf. Park v. N. Y. C. R. Co., 155 N. Y. 215 ; see Art. 10, Illustration (g), ante). So evidence of the defendant's good character is not admissible in his behalf in a civil action, even though he be charged with fraud {Gough v. St. John, 16 Wend. 646; Boardman v. Woodman, 47 N. H. 120; Simpson v. Wcstenberger, 28 Kan. 756 ; Leinkau/v. Brinker, 62 Miss. 255 ; contra, Werts v. Spearman, 22 S. Car. 200); nor can the good character of a party to a civil action be shown to rebut a charge of crime made against him therein by the other party {Stone v. Haivkeye Ins. Co., 68 la- 737 ; Gebhart v. Burkett, 57 Ind. 378 ; but see Lamagdelaine v. Tremblay, 162 Mass. 339 ; as to libel and slander cases, see cases infra). Nor generally can the good character of any party or person interested in the action be shown, except in answer to evidence from the other side attacking his character ( Pratt v. Andrews, 4 X. Y.403 ; see Young v. Johnson, 123 X. Y. 226 ; Mosley v. Ins. Co., 55 \'t. 142). In some cases the question of character is involved in the nature of the action, and evidence of general reputation is received. Thus in Chap. VI.] THE LAW OF EVIDENCE. i6r actions for libel or slander, evidence may be given of the plaintiff's general bad reputation, in mitigation of damages {Homer v. McFarlin, 4 Den. 509 ; Drown v. Allen, 91 Pa. 393 ; Bathricky. Detroit Post Co., 50 Mich. 629 ; Nellis v. Cramer, 86 Wis. 337); but not that reports were in circulation charging him with the act imputed {Kennedy v. Gifford, 19 Wend. 296 ; Pease v. Shippen, 80 Pa. 513 ; Mahoney v. Belford, 132 Mass. 393 ; Sickra v. Small, 87 Me. 493 ; Hanners v. McClelland, 74 la. 318 ; contra, Case v. Marks, 20 Ct. 248), at least if the defendant did not know of such reports when he made the charge {Hatfield v. Lasher, 81 N. Y. 246 ; Lathrop v. Adams, 133 Mass. 471 ; Larrabee v. Minn. Tribune Co., 36 Minn. 141 ; cf. Hoboken Printing Co. v.Kahn, 58 N. J. L. 359); nor can particular acts of misconduct be proved {McLaughlin v. Cowley, 131 Mass. 70 ; Hallowell v. Guntle, 82 Ind. 554); nor can the defendant prove his own bad character {Hastings v. Stetson, 130 Mass. 76). In actions for libel and slander, as in other civil actions, the plaintiff cannot give evidence of his own good character until it has been assailed by the other side {Hitchcock v. Moore, 70 Mich. 112 ; Chubb v. Gsell, 34 Pa. 114; Blakeslee v. Hughes, 50 O. St. 490 ; Cooper v. Phipps, 24 Or. 357); but some States admit such evidence {Adams v. Lawson, 17 Gratt. 250; Shroyer v. Miller, 3 W. Va. 158), others admit it when the defendant has charged the plaintiff with crime {Downey v. Dillon, 52 Ind. 442 ; see Howland v. Blake Mfg. Co., 156 Mass. 543, 568), and it has also been admitted when plaintiff's character has been expressly put in issue by the pleadings {Stafford v. Morning Journal Ass n, 142 N. Y. 598 ; contra, Lotto v. Davenport, 50 Minn. 99). In actions for malicious prosecution, plaintiff's general bad repute may be shown to reduce the damages {Gregory v. Cham- bers, 78 Mo. 294; Rosenkrans v. Barker, 115 111. 331 ; O'Brien v. Frasier, 47 N. J. L. 349); and sometimes such evidence is received as affecting the existence of probable cause {Mclntire v. Levering, 148 Mass. 546 ; Woodworth v. Mills, 61 Wis. 44 ; as to an action for false imprisonment, see Amer. Express Co. v. Patterson, 73 Ind. 430). In actions for criminal conversation, seduction, breach of promise of marriage, and indecent assault, the woman's bad reputation for chastity maybe proved {Sanborn v. Xcilson, 4 N. H. 501 ; Van Storch v. Griffin, 71 Pa. 240; White \. Murtland, 71 111. 250 ; Hogau v. Cregan, 6 Rob. 138 ; Mitchell \. Work, 13 R. I. 645 ; as to proof of specific acts of unchastity in such cases, see Id.; Art 134, note, post; Gr. Ev. ii. §§ 56 and 579). As to proving the character of a witness, see Art. 133, post. " Character" in this Article and note means general reputation (ex- cept as otherwise stated) and cannot be shown by proof of specific acts {Miller \. Curtis, 158 Mass. 127, 131). Usually the reputation proved concerns the particular trait involved in the cause of action [62 A DIGEST OF [Part I. {Warner v. Lockerby, 31 Minn. 421 ; Maxwell \. Kennedy, 50 Wis. 645 ; see, generally, the cases in this note), but sometimes evidence of general moral character is also received. Clark v. Brown, 116 Mass. 504, slander case ; Duval v. Davey, 32 O. St. 604, 612 ; Post Pub'g Co. v. Hallam, 59 F. R. 530 ; Sickra v. Small, 87 Me. 493 ; see Root v. King, 7 Cow. 613, 4 Wend. 113.] Chap. VII.] THE LAW OF EVIDENCE. 163 PART II. ON PROOF. CHAPTER VII. FACTS PROVED OTHERWISE THAN BY EVIDENCE— JUDICIAL NOTICE. C Article 58.* of what facts the court takes judicial notice. It is the duty of all judges to take judicial notice of the following facts : — * See Note XXVI. [Appendix]. [It is the duty of courts in this country to take judicial notice of the following facts : (1) The common law and public statute law of their own State, 1 but not the law of any other State or country;' 2 but 1 {Shaw v. Tobias, 3 N. Y. 188 ; Unity v. Burrage, 103 U. S. 447. So of the law merchant {Reed v. Wilson, 41 N. J. L. 29); of the charter of a municipal corporation, being a public statute (Slier v. Oskaloosa, 41 la. 353 ; Kansas City v. Vineyard, 128 Mo. 75 ; Winooski v. Gokey, 49 Vt. 282 ; in some States all acts of incorporation are public laws, Mass. Pub. St. c. 169, s. 68 ; State v. McAllister, 24 Me. 139) ; of the laws of the antecedent government, when there has been a union or division of states or countries (U. S. v. Perot, 98 U. S. 428 ; Stokes v. Macken, 62 Barb. 145); but not of private statutes (Timlow v. P. &* R. R. Co., 99 Pa. 284), unless, as often now happens, a special law authorizes it (Railroad Co. v. Bank of Ashland, 12 Wall. 226 ; Case v Kelly, 133 U. S. 21); nor of municipal ordinances (Porter v. Waring, 69 N. Y. 250 Centrdl Sav. Bk. v. Baltimore, 71 Md. 515 ; St. Louis v. Roche, 128 Mo. 541), except in the courts of the municipality. Ex parte Davis, 115 Cal. 445 ; Foley v. State, 42 Neb. 233 ; cf. Hankinson v. Trenton, 51 N. J. L. 495.] '-' {Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 ; Monroe v. [64 A DIGEST OF [Part II. ( i ) All unwritten laws, rules, and principles having the force of law administered by any court sitting under the authority of Her Majesty and her successors in England or Ireland, whatever may be the nature of the jurisdic- tion thereof. 1 (2) All public Acts of Parliament, 1 and all Acts of Par- liament whatever, passed since February 4, 185 1, unless the contrary is expressly provided in any such Act. 2 1 Ph. Ev. 460-1 ; T. E. s. 4, and see 36 & 37 Vict. c. 66 (Judicature Act of 1873), s - 2 5- ' 2 13 & 14 Vict. c. 21, ss. 7, 8, and see (for date) caption of session of 14 & 15 Vict. the Federal courts, in the exercise of their original jurisdic- tion, take notice of the public laws of the several States when such laws are properly applicable to cases heard before them,' and, in like manner, general acts of Congress will be noticed in State courts. 2 (2) The existence of the legislature, the time and place of Douglas, 5 N. Y. 447 ; see p. 145, note 1, ante. But in a few States of this country it has been held that in giving full faith and credit to the public acts and records of another State (see Art. 47, note, ante), judi- cial notice will be taken of the law of that State {Paine v. Ins. Co., 1 1 R. I. 411; Ohio v. Hinchman, 27 Pa. 479 ; cf. Carpenter v. Dexter, 8 Wall. 513; Wilson v. Phoenix Mfg. Co., 40 W. \'a. 413). The great weight of authority, however, is to the contrary. Hanley v. Donoghue, 116 U. S. 1, 5 ; Sammis v. Wight man, 31 Fla. 10; Osborn v. Black- burn, 78 Wis. 209.] 1 [Lamar v. Micou, 114 U. S. 218. But the U. S. Supreme Court, upon writ of error to the highest court of a State, does not take judi- cial notice of the law of another State, not proved in that court and made part of the record sent up, unless by the local law that court takes judicial notice of it. Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 445 ; Lloyd v. Matthews, 155 U. S. 222 ; see last note.] 8 [Kessel v. Albelis, 56 Barb. 362; Bird v. Com///., 21 Gratt. 800; Schwerdtle v. Placer Co., 108 Cal. 589. So of the decisions of the U. S. Supreme Court, construing acts of Congress. Southern Pac. R. Co. v. Painter, 113 Cal. 247.] Chap. VII.] THE LAW OF EVIDENCE. 165 (3) The general course of proceeding and privileges of Parliament and of each House thereof, and the date and place of their sittings, but not transactions in their journals. 1 1 Ph. Ev. 460; T. E. s. 5. its sessions, its usual course of proceeding, and the privileges of its members, 1 but not the transactions in its journals.' 2 (3) General customs observed in the transaction of busi- ness. 3 1 [Gr. Ev. i. § 6 ; Coleman v. Dobbins, 8 Ind. 156, 162. Thus the courts will notice which of two bodies of men is the rightful legisla- ture, when each claims the right (Opinion of Justices, 70 Me. 609). The doings of the executive and legislative departments of the gov- ernment will be noticed. Id.; Prince v. Skillin, 71 Me. 361; Mnllan v. State, 114 Cal. 578 ; cf. In re Gunn, 50 Kan. 155.] ■[Grob v. Cushman, 45 111. 119; Bnrt v. Winona, etc. R. Co., 31 Minn. 472. This rule is chiefly applied in holding that the courts will not take notice of such journals in order to impeach the validity of an enrolled act of the legislature, which has been officially attested by the presiding officers of both houses and approved by the executive {Harwood v. Wentivorth, 162 U. S. 547 ; Ex parte Wren, 63 Miss. 512; Carr v. Coke. 1 16 N. C. 223 ; State v. Denny, 1 18 Ind. 449, 455 ; Weeks v. Smith, 81 Me. 538). In many States, however, judicial notice will be taken of the journals, under such circumstances, to determine whether the statute was duly passed by the legislature {Rode v. Phelps, 80 Mich. 598 ; A/oogv. Randolph, 77 Ala. 597 ; Ate Donald v. State, 80 Wis. 407 ; Stale v. Hocker, 36 Fla. 358 ; Robertson v. People, 20 Col. 279 ; cf. Rumsey v. N. Y. etc. R. Co., 130 N. Y. 88 ; Division of How- ard Co., 15 Kan. 194 ; see cases collected in Field v. Clark, 143 U. S. 649, 660- It is held also in some cases that the journals may be judicially noticed for other purposes. Edgar v. Board of Coinmrs., 70 Ind. 331; ///. Cent. R. Co. v. Wren, 43 111. yj.] 3 [Cameron v. Blackrnan, 39 Mich. 108 ; Atchison, etc. R. Co. v. Head- land, 18 Col. 477 ; Nash v. Classen, 163 111. 409 ; Merchants' Nat. Bank v. Hall, 83 N. Y. 338. In this last case, the court took notice of the practice of banks to grant renewals of obligations upon payment of a new discount. So the general mode of doing banking business, bank- ing hours, etc., are noticed. State v. Arnold, 140 Ind. 628 ; Hutchin- son v. Manhattan Co., 150 N. Y. 250 ; American Nat. Bank v. Bushey, 45 Mich. 135.] 166 A DIGEST OF [Part II. (4) All general customs which have been held to have the force of law in any division of the High Court of Jus- tice or by any of the superior courts of law or equity, and all customs which have been duly certified to and recorded in any such court. 1 (5) The course of proceeding and all rules of practice 1 The old rule was that each court took notice of customs held by or certified to it to have the force of law. It is submitted that the effect of the Judicature Act, which fuses all the courts together, must be to produce the result stated in the text. As to the old law, see Piper v. Chappell, 14 M. & W. 649-50. Ex parte Powell, hi re Matthews, 1 Ch. D. 505-7, contains some remarks by Lord Justice Mellish as to proving customs till they come by degrees to be judicially noticed. (4) The course of proceeding and all rules of practice in force in the court itself ;' its own record books and entries therein ; 3 the other courts established by law in the same State, their judges, extent of jurisdiction and course of pro- ceeding ; 3 but appellate courts will not take judicial notice 1 [Wh. Ev. i. § 324. The terms of court are noticed {Kidder v. Blais- dcll, 45 Me. 461 ; Rodgers v. State, 50 Ala. 102) ; but not the pendency of another action in the same or another court. Eyster v. Gaff, 91 U. S. 521 ; State v. Wilson, 39 Mo. App. 114.] 2 [Fellers v. Lee, 2 Barb. 488 ; Robinson v. Brown, 82 111. 279 ; Den- ney v. State, 144 Ind. 504 ; Hallenbach v. Schnabcl, 101 Cal. 312. A court will take notice of its own orders or prior proceedings in the same case {State v. Ulricli, no Mo. 350 ; Jordan v. Circuit Ct., 69 la. 177 ; State v. Stevens, 56 Kan. 720 ; cf. Garrcison v. Fcrrall, 92 la. 728); but not of a former judgment or decree between the same par- ties in the same or another court. Ralphs v. Jlcnsler, 97 Cal. 296; McCormick v. Herndon, 67 Wis. 648 ; Schuler v. Israel, 120 U. S. 506, 509; Enix v Miller, 54 la. 551.] z \Vahle v. Brackenseik, 145 111. 231 ; State v. Wright, 16 R. I. 518 ; State v. Higgins, 124 Mo. 640 ; Hatcher v. Rocheleau, 18 N. Y. 86, 90; Kennedy v. Comm., 78 Ky. | (7 ; Kilpatrick v. Com in., 31 Pa. 198. This last case holds that the superior courts will take notice who are the judges of the inferior State tribunals, — which by common law was a doubtful question (see Gr. Ev. i. §6, note). The fact that a judge has resigned is judicially noticed. People v. M< ( 'onnell, 155 111. 192.] Chap. VII.] THE LAW OF EVIDENCE. 167 in force in the Supreme Court of Justice. Courts of a limited or inferior jurisdiction take judicial notice of their own course of procedure and rules of practice, but not of those of other courts of the same kind, nor does the Supreme Court of Justice take judicial notice of the course of procedure and rules of practice of such courts. 1 (6) The accession and (scmblc) the sign manual of Her Majesty and her successors. 2 (7) The existence and title of every State and Sover- eign recognized by Her Majesty and her successors. 3 1 1 Ph. Ev. 462-3 ; T. E. s. 19. - 1 Ph. Ev. 458 ; T. E. ss. 16, 12. 3 1 Ph. Ev. 460 ; T. E. s. 3. of the rules of practice in inferior courts when reviewing their judgments or decrees. 1 (5) The official status and signatures of officers of the court, as attorneys, clerks of court, etc. 2 (6) The political constitution of their own government ; the accession of the President of the United States or of the executive of the State, and their signatures ; 3 the official status of the chief public officers of the United States or of the State, as e. g., cabinet officers, foreign ministers, sen- 1 \Knarr v. Conaivay, 42 Ind. 260 ; Anderson v. McCormick, 129 111. 308 ; Cutter v. Caruthers, 48 Cal. 178 ; Cherry v. Baker, 17 Md. 75 ; Kindel v. Le Bert, 23 Col. 385 ; but see Oliver v. Palmer, 1 1 G. & J. 426. The Federal courts take judicial notice of the rules and regu- lations of the Department of the Interior and other departments. Ca/uzv. U. S., 152 U. S. 211.] *[Mackinnon v. Barnes, 66 Barb. 91; Hanunann v. Mink, 99 Ind. 279; Buellx. State, 72 Ind. 523 ; Ferris v. Commercial Nat. Bk., 158 111. 237 ; State v. Barrett, 40 Minn. 65 (deputy clerk); State v. Kin- ney, 81 Mo. 101 ; State v. Myers, 85 Tenn. 203 ; Avery v. Maude, 112 Cal. 565. Thus the signature of an attorney, admitting service of papers, will be noticed. Ripley v. Burgess, 2 Hill, 360.] 3 [Yountv. Howell, 14 Cal. 465 ; Wells v. Company, 47 N. H. 235; State v. IVilliams, 5 Wis. 308.] 168 A DIGEST OF [Part II. (8) The accession to office, names, titles, functions, and when attached to any decree, order, certificate, or other judicial or official documents, the signatures of all the judges of the vSupreme Court of Justice. 1 (9) The Great Seal, the Privy Seal, the seals of the Su- perior Courts of Justice, 2 and all seals which any court is 1 1 Ph. Ev. 462; T. E. s. 19; and as to latter part, 8 & 9 Vict. c. 113, s. 2, as modified by 36 & 37 Vict. c. 66, s. 76 (Judicature Act of 1873). 2 The Judicature Acts confer no seal on the Supreme or High Court or its divisions. ators, and the like, 1 — also of sheriffs and marshals (and their signatures), 2 but not of their deputies. 3 (7) The existence and title of every State and sovereign recognized by the national government ; 4 also their public seals when attached to public acts, decrees, judgments or other official documents. 5 (8) The law of nations ; 6 foreign admiralty and maritime 1 [State v. Myers, 85 Tenn. 203, 208 ; York, etc. R. Co. v. Winans, 17 How. (U. S.) 30 ; see Brown v. Piper, 91 U. S. 37,42. The signatures of heads of departments will be noticed. Comm. v. Dunlop, 89 Va. 43I-] ! {Thompson v. Haskell, 21 111. 215 ; Ingram v. State, 27 Ala. 17. Some cases say that notice will be taken of all county officers [Farley v. McConnell, 7 Lans. 428 ; Himmelntann v. Hoadley, 44 Cal. 213), at least if the court sits therein (T/iielmann v. Burg, 73 111. 293). Thus it has been noticed who are notaries public of the county in which the court is held {Hertig v. People, 159 111. 237). So notice has been taken of justices and aldermen {Fox v. Comm., 81* Pa. 511), and as to who were elected officers at a general election. State v. Seibert, 130 Mo. 202.] 3 [Gr. Ev. i.§6 ; Ward v. Henry, 19 Wis. 76 ; contra, under a statute, Burke v. Lacock, 41 Minn. 250, 255.] 4 [ Jones v. U. S., 137 U. S. 202. The recognition must be by the ex- ecutive branch of the government, before the courts will take such judicial notice. Gelston v. Hoyt, 13 Johns. 561, 587, 3 Wheat. 249.] 5 [Lazier v. Westcott, 26 N. Y. 146 ; Griswold v. Pitcaim, 2 Ct. 85 ; Coit v. Mi '/liken, 1 Den. 376.] 6 [7'//e Scotia, 14 Wall. 170.] Chap. VII.] THE LAW OF EVIDENCE. 169 authorized to use by any act of Parliament, 1 certain other seals mentioned in acts of Parliament, 1 the seal of the 1 Doe v. Edwards, g A. & E. 555. See a list in T. E. s. 6. courts and their seals ;' the seals of notaries public ; 2 the seals of their own State and of the United States, and of the courts thereof which have seals ; 3 but not the seals of foreign municipal courts or of foreign officers. 4 (9) Public proclamations by the executive branch of the government, as of war, peace, amnesty, etc. ; 6 treaties made with foreign countries ; 6 executive decrees or messages of a public nature and ordinances of state ; 7 days of general political elections. 8 (10) The extent of territory included within their own State or within the national domain ; 9 the civil divisions of the 1 [ Thompsoti v. Stewart, 3 Ct. 171 ; Mumford v. Bowne, Anth. N. P. 56.] ' 2 [Pierce v. Indseth, 106 U. S. 546 ; Johnson v. Brown, 154 Mass. 105 ; Barky dt v. Alexander, 59 Mo. App. 188.] 3 [Bobinson v. Gilman, 20 Me. 299 ; Delafieldw, Hand, 3 Johns. 310, 314 ; Williams v. Wilkes, 14 Pa. 228. The seal of a Federal court will be noticed in other Federal courts and in State courts. Turnbull v. Payson, 95 U. S. 418 ; Adams v. Way, 33 Ct. 419.] i [DelaJield v. Hand, supra; Vandervoort v. Smith, 2 Cai. 155; Church v. Hubbart, 2 Cr. 187. These rules are sometimes modified by statutory provisions, providing how foreign records shall be proved. See N. Y. Code Civ. Pro. §§952-956 ; Hinton v. Life Ins. Co., 116 N. C. 22.] 5 [Armstrong- v. U. S., 13 Wall. 154.] 6 [U. S. v. Bauscher, 119 U. S. 407 ; People v. Stout, 81 Hun, 336.] 1 [ Wells v. Mo. Pac. B. Co., no Mo. 286 ; Turner s Admr. v. Batton, 49 Ala. 406, 410 ; but not the orders of a military commander {Burke v. Miltenberger, 19 Wall. 519), unless they have become matters of public history {Holmes v. Kring, 93 Mo. 452 ; Lanfear v. Mestier, 18 La. Ann. 497); nor executive acts of a private nature, affecting per- sons not citizens. Dole v. Wilson, 16 Minn. 525.] 8 [Mills v. Green, 159 U. S. 651 ; State v. Minnick, 15 la. 123 ; Cope- land v. State, 126 Ind. 51 ; Jackson Co. v. Arnold, 135 Mo. 207.] 9 [Jones v. U. S., 137 U. S. 202 ; State v. Wagner, 61 Me. 178 ; Slate v. Ditnwcll, 3 R. I. 127.] 170 A DIGEST OF [Part II. Corporation of London, 1 and the seal of any notary public in the Queen's dominions. 2 (10) The extent of the territories under the dominion of Her Majesty and her successors ; the territorial and 1 i Ph. Ev. 464 ; T. E. s. 6. 2 Cole v. Sherard, 11 Ex. 482. As to foreign notaries, see Earfs Trust, 4 K. & J. 300. country or State, as into States, counties, cities, towns, etc. ;' the relative positions of such divisions in the State, as that a city or town is in a certain county ; 2 the chief geographical features of the State ; 3 the existence of war against the United States ; 4 other public matters directly concerning the general government of the State or country ; 5 the existence x \Comm. v. Desmond, 103 Mass. 445; Chapman v.Wilber, 6 Hill, 475 ; Rogers v. Cady, 104 Cal. 288 ; Pitts v. Lewis, 81 la. 51 ; People v. Waller, 70 Mich. 237 ; State v. Cunningham, 81 Wis. 440.] '' [People v. Suppiger, 103 111. 434 ; State v. Powers, 25 Ct. 48 ; State v. Reader, 60 la. 527 ; Bryan v. Scholl, 109 Ind. 367 ; People v. Wood, 131 N. Y. 617. So notice is taken that a certain town is or is not with- in a certain distance of the place of trial or the seat of government (Hinckley v. Beckwith, 23 Wis. 328; Benson v. Clark, 151 111. 495; Hoyt v. Russell, 117 U. S. 401). Such local divisions may be deter- mined by public statutes and be noticed for that reason. Bronson v. Gleason, 7 Barb. 472 ; R'ansas City, etc. R. Co. v. Burge, 40 Kan. 736.] 3 [ Wiimipiseogee Lake Co. v. Young, 40 N. H. 420 ; State v. Thonip- wn, 85 Me. 189 ; People v. Brooks, 101 Mich. 98 ; Note to 10 Abb. N. C. 117. The population of the State or its counties, etc., as shown by the census is noticed (State v .Wojford, 121 Mo. 61 ; Denneyv. State, 144 Ind. 503 ; People v. McKane, 80 Hun, 322, 143 N. Y. 455 ; Worcester Nat. Bk. v. Cheney, 94 111. 430); the boundaries of a State or county (State v. Pennington, 124 Mo. 388); what rivers in the State are navi- gable (Woodv. Fowler, 26 Kan. 682 ; Comm. v. King, 150 Mass. 221); but not the width of streets or sidewalks in a city (Porter v. Waring, 69 N. Y. 250). The distance between great cities in different States has been noticed. Pearce v. Langfit, 101 Pa. 507 ; but see Goodwin v. Appleton, 22 Me. 453.] 4 [Swinnerton v. Columbian Lns. Co., 37 N. Y. 174.] b [Opinion of Justices, 70 Me. 6oq ; People v. Snyder, 41 N. Y. 397.] Chap. VII.] THE LAW OF EVIDENCE. 171 political divisions of England and Ireland, but not their geographical position or the situation of particular places ; the commencement, continuance, and termination of war between Her Majesty and any other Sovereign ; and all of foreign countries and that they have a government and courts and a system of law like our own. 1 The Federal courts take notice of the ports of the United States in which the tide ebbs and flows, and of the boundaries of the several States and judicial districts. 2 (11) Matters which must have happened according to the ordinary course of nature ; 3 natural and artificial divisions of time ■* the ordinary meaning of English words' and com- mon abbreviations ; 5 legal weights and measures and moneys 1 [Lazier y. Westcott, 26 N. Y. 148 ; Morse v. Hewlett, 28 Mich. 481.] 2 [Gr. Ev. i. § 6 ; Thorson v. Peterson, 9 F. R. 517. So of internal revenue districts. U. S. v. Jackson, 104 U. S. 41.] 3 [ Wood v. Ins. Co., 46 N. Y. 421, 426 ; Djxon v. Niccolls, 39 111. 372 ; as the time when the sun or moon rises or sets on a certain dav {People v. Mayer, 113 Cal. 618 ; State v. Morris, 47 Ct. 179 ; Case v. Perew, 46 Hun, 57); and the succession of the seasons. Ross v. Bos- well, 60 Ind. 235 ; Garth v. Caldwell, 72 Mo. 622.] 4 [Wh. Ev. i. § 335. Thus notice is taken of the coincidence of days of the week with days of the month, as e.g., upon what day a par- ticular date falls {Phila. etc. R. Co. v. Lehman, 56 Md. 209 ; Bank v. Kingsley, 84 Me. in ; Roberts v. Farmers ', etc. Bk., 136 Ind. 154 ; Mechanics' Bank v. Gibson, 7 Wend. 460), and, in general, of the calendar. State v. Harris, 121 Mo. 445.] 5 [Nix v. Hedden, 149 U. S. 304 (meaning of " fruit " and " vegetable "); Toplits v. Hedden, 146 U. S. 252, 257 ("bonnets"); Cook v. State, no Ala. 40 ("oleomargarine "); Comm. v. Marzynski, 149 Mass. 68 (that "cigars" are not drugs); State v. Intoxicating Liquors, 73 Me. 278 ("C. O. D."); Moseley v. Mastin, 37 Ala. 216 ("admr."); South Mo. Co. w.Jeffries, 40 Mo. App. 360. So of the meaning of current ex- pressions which every one understands {Bailey v. Kalamazoo Pubg Co., 40 Mich. 251 ; but see Baltimore v. State, 15 Md. 376, 484); but not of uncommon or extraordinary meanings given to English words in particular localities {People v. Gastro, 75 Mich. 127). In Accola v. Chicago, etc. R. Co., 70 la. 185, the court would not notice the mean- ing of the abbreviation, " C, B. & Q. R. Co.," used in a pleading.] 172 A DIGEST OF [Part II. other public matters directly concerning the general government of Her Majesty's dominions. 1 (n) The ordinary course of nature, natural and arti ficial divisions of time, the meaning of English words. 2 1 1 Ph. Ev. 466, 460, 458 ; and T. E. ss. 15-16. 2 1 Ph. Ev. 465-6 ; T. E. s. 14. of the country j 1 matters of general public history, 2 but not those of mere private or local history ; 3 other matters of such general and public notoriety that every one may fairly be presumed to be acquainted with them. 4 1 [Gr. Ev. i. § 5 ; Johnston v. Hedden, 2 Jr>hns. Cas. 274.] 2 [Thomas v. Stigers, 5 Pa. 480 ; Mode v. Beasley, 143 Ind. 306 ; Bis- sing v. Smith, 85 Hun, 564; Mayor of A 7 . Y. v. Sands, 105 N. Y. 210, 217; Howard v. Moot, 64 N. Y. 262 ; as e. g., the civil war in this country, 1861-65, and its duration. Cross v. Sabin, 13 F. R. 308 ; Turners Admr. v. Patton, 49 Ala. 406 ; Swinnerton v. Columbian his. Co., 37 N. Y.174.] 3 [McKinnon v. Bliss, 21 N. Y. 206.] 4 [King v. Gallun, 109 U. S. 99 ; Gilbert v. Flint, etc. R. Co., 51 Mich. 488 ; Menomitiee Co. v. Milwaukee, etc. R. Co., 91 Wis. 447 ; State v. Me. Cent. R. Co., 86 Me. 309 ; as e.g., the ordinary duration of human life {Johnson v. Hudson R.R. Co., 6 Duer,634); the average height of the human body {Hunter v. N. Y. etc. R. Co., 116 N. Y. 615); the usual length of time for a voyage across the Atlantic {Oppenhcim v. Wolf, 3 Sandf. Ch. 571); the usual time to run trains between prominent cities {Pearce v. Langfit, 101 Pa. 507 ; contra,, Wiggins v. Burkham, 10 Wall. 129); the practice of checking baggage in this country {Isaacson v.N. Y. C.R. Co., 94 N. Y. 278); the, nature and properties of such things as natural or artificial gas, electricity, gun- powder, kerosene, tobacco and the like {Jamieson v. Ind. Nat. Gas Co., 128 Ind. 555 ; In re Jacobs, 98 N. Y. 98, 113 ; State v. Hays, 78 Mo. 307; State v. Johnson, 118 Mo. 491 ; Crawfordsville v. Braden, 130 Ind. 149); that whiskey, brandy, gin, ale, and strong beer are in- toxicating (JUatz v. Rohrbach, 116 N. Y. 450 ; Thomas v. Comm., 90 Va. 92 ; Eagan v. State, 53 Ind. 162); but not that all malt liquors are intoxicating. Id.; Schlicht v. State, 56 Ind. 188 ; but see Briffit v. State, 58 Wis. 39.] Chap. VII. 1 THE LAW OF EVIDENCE. 173 (12) All other matters which they are directed by any statute to notice. 1 1 E.g., the Articles of War. See sec. 1 of the Mutiny Act. (12) Matters of general knowledge and experience within their jurisdiction ;' and matters which they are directed by any statute to notice.] Article 59. as to proof of such facts. No evidence of any fact of which the court will take judicial notice need be given by the party alleging- its existence; 2 but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, refer to any person or to any document or book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling upon him to take such notice produces any such document or book of reference. 3 1 {Howard v. Moot, 64 N. Y. 262, 271 ; Hilliker v. Coleman, 73 Mich. 170 ; People v. Powers, 147 N. Y. 104, no ; Opinion of Justices, 70 Me. 609 ; as e.g., the result of an election affecting the organization of a county {Andrews v. Knox Co., 70 111. 65 ; Thomas v. Comm., 90 Va. 92 ; but see Whitman v. State, 80 Md. 410); the effect of elevated railroads upon the business of the streets through which they run. Bookman v. N. V. El. R. Co., 137 N. Y. 302.] 2 [In Hoyt v. Russell, 117 U. S. 401, judgment was reversed because the court below required proof of a fact of which it was bound to take judicial notice. Cf. State v. Main, 69-Ct. 123, 136.] 3 T. E. (from Greenleaf) s. 20. E.g., a judge will refer in case of need to an almanac, or to a printed copy of the statutes, or write to the Foreign Office, to know whether a State had been recognized. [Gr. Ev. i. § 6 ; Nix v. Hedden, 149 U. S. 304 ; Jones v. U. S., 137 U. S. 202 ; Walton v. Stafford, 14 App. Div. (N. Y.) 310 ; Vahle v. Bracken seik, 145 111. 236 ; Bowcn v. Mo. Pac. R. Co., 118 Mo. 541 ; Heffernan v. Harvey, 41 W. Va. 766 ; Wilson v. Van Leer, 127 Pa. 372 ; Hall v. 174 A DIGEST OF [Part II. Article Go. evidence need not be given of facts admitted. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hear- ing, or which they have admitted before the hearing and with reference thereto, or by their pleadings. 1 Provided that in a trial for felony the prisoner can make no admis- sions so as to dispense with proof, though a confession may be proved as against him, subject to the rules stated in Articles 21-24. 2 Brown, 58 N. H. 95 ; State v. Wagner, 61 Me. 178 ; State v. Morris, 47 Ct. 179 ; State v. Clare, 5 la. 509. Counsel should cite statutes and decisions to the court, even though the Courtis bound to judicially notice them {State v. Farlee, 74 la. 451). But a judge is not to take judicial notice of matters merely because he in fact knows them. Lena/tan v. People, 5 T. & C. 265.] 1 Rules of Supreme Court, Order xxxii. [Coffin v. Hydraulic Co., 136 N. Y. 655; Waldron v. IValdron, 156 U. S. 361; McGowan v. McDonald, in Cal. 57; State v. Brooks, 99 Mo. 137; Atkinson v. Linden Co., 138 111. 187 ; Burke v. Mascarich, 81 Cal. 302 ; Mussclman v. Wise, 84 Ind. 248. So evidence offered by a party contradicting his admissions in the pleadings is not competent {Getty v. Ham lin, 46 Hun, 1), and a finding or judgment contrary to such admissions is error (Reinhart v. Lugo, 75 Cal. 639 ; Paige v. Willett, 38 N. Y. 28). A demurrer admits facts well pleaded, but only for the purposes of the argument on the demurrer ; it is not evidence of such facts on the trial of the issue of fact {State's Att'y v. Branford, 59 Ct. 402 ; cf. Gray v. Gray, 143 N. Y. 354), unless the party demurring obtains leave to withdraw his demurrer from the record and goes to trial without having done so. Cutler \. Wright, 22 N. Y. 472.] The fact that a document is admitted does not make it relevant and is not equivalent to putting it in evidence. Watson v. Rodwell, 11 Ch. D. 150, per James, L. J. 2 1 Ph. Ev. 391 , n. 6. In R. v. Thornhill, 8 C. & P. 575, Lord Abinger acted upon this rule in a trial for perjury. [In this case Lord Abinger rejected evidence of admissions made by defendant's counsel before the trial, but said that admissions made at the trial might be allowed. See Gr. Ev. iii. § 39.] Chap. VIII.] THE LAW OF EVIDENCE. 175 CHAPTER VIII. OF ORAL EVIDENCE. Article 61. proof of facts by oral evidence. All facts may be proved by oral evidence subject to the provisions as to the proof of documents contained in Chap- ters IX., X., XL, and XII. Article 62.* ORAL EVIDENCE MUST BE DIRECT. Oral evidence must in all cases whatever be direct ; that is to say — If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it ; If it refers to a fact alleged to have been heard, it must be the evidence of a witness who says he heard it ; If it refers to a fact alleged to have been perceived by any other sense 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 ; ' * See Note XXVII. [Appendix]. 1 [See Teerpenning v. Com Ex. Ins. Co., 43 N. Y. 279 ; People v. Chin Hane, 108 Cal. 597 ; Simpson v. Smith, 27 Kan. 565, 570 ; Rea v. Harrington, 58 Vt. 181; Fassin v. Hubbard, 55 N. Y. 465. A wit- ness may testify as to a communication received through the tele- phone ( Wolfe v. Mo. Pac. R. Co., 97 Mo. 473 ; Oskamp v. Gadsden, 35 Neb. 7; Miles v. Andrew, 153 111. 262); but identification of the speaker, as e. g.,by the sound of his voice, may be necessary {People 176 A DIGEST OF [Part II. If it refers to an opinion, or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. v. McKane, 143 N. Y. 455, 474). A witness may testify to his impres- sion, if this is based upon his own recollection of facts which he saw, heard, perceived, etc., and not upon hearsay or inference (Gr. Ev. i. § 440 ; Blake v. People, 73 N. Y. 586 ; Humphries v. Parker, 52 Me. 502 ; Whitman v. Morey, 63 N. H. 448, 457 ; State v. Ward, 61 Vt. 153 ; Dexter v. Harrison, 146 111. 169 ; Lovejoy v. Howe, 55 Minn. 353 ; Ala. Southern R. Co. v. Hill, 93 Ala. 515 ; Tail v. Hall, 71 Cal. 149 ; Du- vall's Excr. v. Darby, 38 Pa. 56). So testimony as to what the wit- ness "understood" or "supposed" has been received, when it really expresses his knowledge and recollection of what was said or doneor agreed upon, etc. (Fiske v. Gowing, 61 N. H. 431 ; Leach v. Ban- croft, Id. 411; Ganserv. Fireman s Ins. Co., 38 Minn. 74 ; Moody v. Davis, 10 Ga. 403); but usually such evidence is inadmissible, as con- stituting only hearsay or opinion {Fosdick v. Van Arsdale, 74 Mich. 303 ; Kingsbury v. Moses, 45 N. H. 222 ; Mather v. Parsons, 32 Hun, 338 ; Crow ell v. Western Res. Bk., 3 O. St. 406). So evidence of one's intent, understanding, etc., is not received to show or vary the mean- ing of a written instrument, nor can one's undisclosed intent at the time of making a contract be proved to bind the other party (Ricker- son v. Hartford Ins. Co., 149 N. Y. 307 ; Bartley v. Phillips, 179 Pa. 175). A witness may testify to his own intent or motive or belief, when that is material in the case (Bayliss v. Cocke rofi, 81 N. Y. 363 ; Wal- lace v. U. S., 162 U. S. 466, 477 ; Brown v. Mass. Ins. Co., 151 Mass. 127 ; Phelps v. George's, etc. R. Co., 60 Md. 536 ; Wohlford v. People, 148 111. 296 ; Ross v. State, 116 Ind. 495 ; Angellv. Pickard, 61 Mich. 561; Plank v. Gri?nm, 62 Wis. 251; contra, Ala. Fertilizing Co. v. Reynolds, 79 Ala. 497), but not to the intent or motive of another per- son {Nlfrs. &* Traders' Bk. v. Koch, 105 N. Y. 630 ; Cihak v. Klekr, 117 111. 643 ; Garrett v. Trabue, 82 Ala. 227). So a witness may not testify to a conclusion of law (Wh. Ev. i. §§ 507, 509 ; Nicolay v. I ~ngc>\ 80 N. Y. 54 ; Wardv. Kilpa trick, 85 N. Y. 413 ; Providence Tool Co. v. U. S. Mfg. Co., 120 Mass. 35 ; Fisher v. Green, 142 111. 80 ; Young v. Newark Jus. Co., 59 Ct. 41 ; G abbey v. Forgens, 38 Kan. 62). Objects which have a material bearing on the case may be shown to the jury, and thus have the effect of evidence ; as the weapon or in- strument used to commit a crime, bloody garments, a person's injured limb, etc. (Wh. Ev. i. §§ 345-347; People v. Gonzalez, 35 N. Y. 49; King v. N. Y. C. R. Co., 72 X. Y. 607 ; Louisville, etc. R. Co. v. Wood, 113 Ind. 544 ; Lanark v. Dougherty, 153 111. 163 ; Langworthy v. Green, 95 Chap. VIII.] THE LAW OF EVIDENCE. 177 Mich. Q3 ; State v. Ward, 61 Vt. 153); but if such an exhibition would be indecent or offensive, it may be denied {Knowles v. Crampton, 55 Ct. 336). So the jury may be permitted to view the locus in quo ( Vane v. Evans ton, 150 111. 616). A person may be produced before a jury to enable them to judge as to his being a minor {Comm. v. Emmons, 98 Mass. 6 ; Herrman v. State, 73 Wis. 248 ; N. Y. Pen. Code, § 19; contra, Louisville, etc. R. Co. v. Wood, 113 Ind. 544, 550); and a wit- ness under examination or one present in court as a party may be required by the court to uncover his or her face or to stand up to be identified {Rice v. Rice, 47 N. J. Eq. 559 ; People v. Goldenson, 76 Cal. 328 ; People v. Gardner, 144 N.Y. 1 19 ; Williams v. State, 98 Ala. 52). So photographs or drawings of persons or places, if properly verified as being accurate, may be introduced in evidence ( Udderzook' s Case, 76 Pa. 340 ; Ccwley v. People, 83 N. Y. 464 ; Comm. v. Robertson, 162 Mass. 90 ; Wilson v. U. S., 162 U. S. 613 ; Cleveland, etc. R. Co. v. Monaghan, 140 111. 475 ; Leidlein v. Meyer, 95 Mich. 586 ; People v. Johnson, 140 N. Y. 350 ; cf. Gilbert v. West End R. Co., 160 Mass. 403). But whether a person suing for personal injuries can be required by the court to submit to an examination by physicians is a matter upon which the authorities are conflicting ; that he can, see Atchison, etc. R. Co. v. Thul, 29 Kan. 466 ; Turnpike Co. v. Baily, 37 O. St. 104 ; White v. Milwaukee R. Co., 61 Wis. 536 ; Schroeder v. Railroad Co., 47 la. 375; Railway Co. v. Dobbins, 60 Ark. 481 ; Fullerton v. Fordyce, 121 Mo. 1 ; Graves v. Battle Creek, 95 Mich. 266 ; N. Y. Code Civ. Pro. § 873 ; that he cannot, Union Pac. R. Co. v. Botsford, 141 U. S. 250 ; Peoria, etc. R. Co. v. Rice, 144 111. 229; Pennsylvania Co. v. Newmeyer, 129 Ind. 401. In suits for divorce because of impotence, it is well set- tled that the court has the power. Bishop, M. D. & S. ii. §§ 1298-1315; Anonymous, 89 Ala. 291; Cahn v. Cahn, 21 Misc. 506; cf. McGuJ v, State, 88 Ala. 147.] 178 A DIGEST OF [Part II. CHAPTER IX. OF DOCUMENTARY EVIDENCE— PRIMARY AND SECONDARY, AND ATTESTED DOCUMENTS. Article 6$. proof of contents of documents. The contents* of documents may be proved either by pri- mary or by secondary evidence. Article 64. primary evidence. Primary evidence means the document itself produced for the inspection of the court, accompanied by the pro- duction of an attesting witness in cases in which an attest- ing witness must be called under the provisions of Articles 66 and 67 ; or an admission of its contents proved to have been made by a person whose admissions are relevant under Articles 15-20. 1 1 Slatterie v. Pooley, 6 M. & W. 664. [This doctrine that the con- tents of a document may be proved by a party's admissions is accepted in several States (Loo?/iis v. Wadhams, 8 Gray, 557 ; Edgar v. Rich- ardson, 33 O. St. 581 ; Taylor v. Peck, 21 Gratt. 1 1 ; Edwards v. Tracy, 62 Pa. 374 ; Blackington v. Rockland, 66 Me. 332 ; Hoeflingv. Ham- bleton, 84 Tex. 517 ; Morey v. Hoy I, 62 Ct. 542 ; cf. Morrill v. Robin- son, 71 Me. 24). But in New York and New Jersey it is rejected {Sherman v. People, 13 Hun, 575 ; Cumberland Ins. Co. v. Giltinan, 48 N. J. L. 495), though such evidence is receivable if the document is lost or destroyed. Mandeville v. Reynolds, 68 N. Y. 528, 537 ; Corbin v. Jackson, 14 Wend. 619 ; see Gr. Ev. i. § 96 ; \Vh. Ev. ii. §§ 1091- 1093-] Chap. IX.] THE LAW OF EVIDENCE. 179 Where a document is executed in several parts, each part is primary evidence of the document : ! Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. 2 Where a number of documents are all made by print- ing, lithography, or photography, or any other process of such a nature as in itself to secure uniformity in the copies, each is primary evidence of the contents of the rest ; 3 but where they are all copies of a common original, 1 [Each of several duplicate originals is primary evidence {Lewis v. Payn, 8 Cow. 71 ; Hubbard v. Russell, 24 Barb. 404 ; Totten v. Bucy, 57 Md. 446 ; Gardner v. Eberhart, 82 111. 316 ; cf. Crossvian v. Cross- man, 95 N. Y. 145 ; see p. 191, note 1, post). So a copy may, under special circumstances, be deemed primary evidence. Carroll v. Peake, 1 Pet. 18 ; Aaltman v. Ritter, 81 Wis. 395.] 2 Roe d. West v. Davis, 7 Ea. 362. [Loring v. Whittemore, 13 Gray, 228 ; Nicoll v. Burke, 8 Abb. N. C. 213 ; Cleveland, etc. R. Co. v. Per- kins, 17 Mich. 296 ; Anglo-A?ner. Co. v. Camion, 31 F. R. 313. v It is not usual now to execute instruments in counterpart. Roland v. Pinckney, 8 Misc. 458.] 3 R. v. Watson, 2 Stark. 129. This case was decided long before the invention of photography ; but the judgments delivered by the court (Ellenborough, C. J., and Abbott, Bayley, and Holroyd, JJ.) establish the principle stated in the text. [Wh. Ev. i. §§ 70, 92 ; see Huffv. Bennett, 4 Sandf. 120 ; Simmons v. Holster, 13 Minn. 249. When a telegram is to be proved, the primary evidence, in contro- versies between the sender and the company, is the original message delivered to the company for transmission ( W. U. Tel. Co. v. Hopkins, 49 Ind. 223; but see Conyers v. Postal Tel. Co., 92 Ga. 619); and the same is true when the question is whether the alleged sender of a dis- patch did actually send it, or authorize it to be sent ( Oregon Steams/iip Co. v. Otis, 100 N. Y. 446). But when a contract is made by telegrams, and the sender takes the initiative by sending the offer, thus making the company his agent to transmit the message, the primary evidence to prove the contract is the message of the sender as delivered to the receiver and the answering message of the receiver as delivered by him to the office for transmission {Durkee v, Vt. R. Co., 29 Yt. 127; i8o A DIGEST OF [Part II. no one of them is primary evidence of the contents of the original. 1 Article 65. PROOF OF DOCUMENTS BY PRIMARY EVIDENCE. The contents of documents must, except in the cases mentioned in Article 71, be proved by primary evidence ; and in the cases mentioned in Article 66 by calling- an attesting witness. 3 Article 66.* proof of execution of document required by law to be attested. If a document is required by law to be attested, 4 it may not be used as evidence (except in the cases mentioned * See Note XXVIII. [Appendix]. Howley v. Whipple, 48 N. H. 487 ; Nickersoii v. Spindell, 164 Mass. 25 ; Ayer v. Tel. Co., 79 Me. 493', 500 ; Savelandv. Green, 40 Wis. 431 ; cf. Smith v. Easton, 54 Md. 138 ; Trevor v. Wood, 36 N. Y. 307 ; see cases collected in 14 Abb. N. C. 394). So in other cases where the sender takes the initiative in sending directions by telegraph, or an offer or request, the message received by the addressee is primary evidence {Anhetiser-Busch Ass 71 v. Hutmacher, 127 111. 652 ; Magie v. Herman, 50 Minn. 424; cf. Comm. v. Jeffries, 7 Allen, 548). But when the sendee employs the telegraph company, the primary evi- dence is the message delivered to the operator. Id.] 1 Noden v. Murray, 3 Camp. 224. [Letter-press copies of documents are secondary evidence {Foot v. Bentley, 44 N. Y. 166 ; State v. Hal- stead, 73 la. 376 ; McDowell v. J£t7ia Ins. Co., 164 Mass. 444 ; King v. Worthington, 73 111. 161). So of photographic copies. Duffinv. People, 107 111. 113 ; Maclean v. Scripps, 52 Mich. 214 ; White Co. v. Gordon, 124 Ind. 495.] 2 [Gr. Ev. i. §§ 82-88; Wh. Ev. i. §§ 60-160; Kain v. Larkin, 131 N. Y. 300, 311; Woods v. Burke, 67 Mich. 674 ; Martin v. McCray, 171 Pa. 575-] 3 [One who subscribes an instrument as a witness, but without the knowledge or consent of the parties, is not to be deemed an attesting witness. Gr. Ev. i. § 569 a ; Sherwood v. Pratt, 63 Barb. 137 ; Huston v. Ticknor, 99 Pa. 231.] 4 [See Art. 69, note.] Chap. IX.] THE LAW OF EVIDENCE. 181 or referred to in the next Article) if there be an attesting witness alive, sane, and subject to the process of the court, until one attesting witness at least has been called for the purpose of proving its execution. 1 If it be shown that no such attesting witness is alive or can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 2 1 [Gr. Ev. i. § 569 ; Wh. Ev. i. §§ 723-725 ; Henry v. Bishop, 2 Wend. 575 ; International, etc. R. Co. v. McRae, 82 Tex. 614 ; Barryv. Ryan, 4 Gray, 523. Only one witness need testify, though there be two or more (O' Sullivan v. Overton, 56 Ct. 102; White v. Wood, 8 Cush. 413; Melcherv. Flanders, 40 N. H. 139). But the absence of all must be accounted for, before evidence of handwriting will be ad- mitted. Jackson v. Gager, 5 Cow. 383 ; Tarns v. Hitner, 9 Pa. 441 ; Turner v. Green, 2 Cr. C. C. 202.] 2 [The same general rule is established by statute in some States in regard to deeds (Mass. Pub. St. c. 120, ss. 8, 10; Maine Rev. St. c. 72, s. 19 ; Vt. Rev. St. ss. 1938, 1943). But generally in this country it is sufficient to prove the signature either of a witness or of the party, without proving both (Borst v.Empie, 5 N. Y. 33). Proof of the signature of one witness is sufficient proof of execution {Stebbins v. Duncan, 108 U. S. 32; Gelolt v. Goodspeed, 8 Cush. 411; Va?i Rensselaer v. Jones, 2 Barb. 643); but proof of the party's identity may be needed besides, in cases of doubt or suspected fraud (Id.; Brown v. Kimball, 25 Wend. 259); and the signatures of other witnesses or of the party may, of course, always be proved, in addition to that of one witness {Jackson v. Chamberlain, 8 Wend. 620; Serin's v. Nelson, 14 N. J. Eq. 94). In New York and some other States the signature of a witness must always be proved, if practicable, before that of a party can be ( Willson v. Belts, 4 Den. 201 ; Stebbins v. Duncan, 108 U. S. 32 ; see McVicker v. Conkle, 96 Ga. 584, criticising the rule); but if the witness's handwriting cannot be proved, then the party's should be {Jackson v. Waldron, 13 Wend. 178 ; Lessee of Clarke v. Courtney, 5 Pet. 319). But in a number of the States the writing of the party may be proved without proving that of a witness {Jones v. Roberts, 65 Me. 273; Cox v. Davis, 17 Ala. 714; Landers v. Bolton, 26 Cal. 393; Wellfordv. Eakin, 1 Cr. C. C 264); that the handwriting of either or both may be proved, see Snider v. Burks, 84 Ala. 53, 56 ; A DIGEST OF [Part II. The rule extends to cases in which — the document has been burnt, 1 or canceled, 2 [or lost] ; : Gelott v. Goodspeed, 8 Cush. 411 ; cf. Troeder v. Hyams, 153 Mass. 536. Besides death or insanity {Neely v. Neely, 17 Pa. 227 ; McKay v. Lasher, 121 N. Y. 477), absence of witnesses from the State will let in proof of handwriting ; it is not necessary to send a commission to take their depositions {Trustees of Charities v. Connolly, 157 Mass. 272; Hanrick v. Patrick, 119 U. S. 156; Grogan v. U. S. Industrial his. Co., 90 Hun, 521 ; Lush v. Druse, 4 Wend. 313; N.J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189 ; Gallagher v. London Assur. Corp., 149 Pa. 25 ; Ballinger v. Davis, 29 la. 512). So handwriting may be proved when no witness can be found after diligent search, or none who is competent to testify (Gr. Ev. i. § 572 ; Pelletreau v. Jackson, 11 Wend, no ; li'oodman v. Segar, 25 Me. 90). Special statutes in some States require proof of certain documents by more than one witness, as e. g., proof of a will by both or all the subscribing witnesses upon an application for the admission of the will to probate (N. Y. Code Civ. Pro. § 2618 ; Ohio R. S. s. 5926 ; 111. R. S. c. 148, ss. 2 & 6). But in other proceedings than those for probate, the testimony of one subscribing witness to the will may be sufficient {Upton v. Bernstein, 76 Hun, 516). In several States a will may be proved, upon an application for probate, by one witness, if the pro- bate is not contested (Mass. Pub. St. c. 129, s. 1 ; R. S. of N. H. c. 187, s. 6 ; Wis. R. S. ii. p. 2014). If any witness or witnesses to a will are dead, insane, absent, etc., proof of handwriting may be given ; by some statutes the signature of the testator must be proved as well as that of the witness or witnesses. Id.; N. Y. Code Civ. Pro. § 2620; Denny v. Pinncy, 60 Yt. 524 ; cf. Collyer v. Collyer, 4 Dem. 53.] 1 Gillies v. Smither, 2 Stark. 528. [But where the instrument which was burned was a deed which had been duly acknowledged, it was held not necessary to call the subscribing witness to prove its execution. Simmons v. Haven, 101 N. Y. 427 ; see Art. 67, post, note 4.] 2 Breton v. Cope, Pea. R. 43. z [Hewitt v. Morris, 5 J. & Sp. 18; Kelsey v. Hanmer, 18 Ct. 311; Porter v. Wilson, 13 Pa. 641 ; Wells v. Jackson Iron Co., 48 N. H. 491 ; cf. Jackson v. Frier, 16 Johns. 193 ; Moore v. Livingston, 28 Barb. 543 ; Kimball v. Morrill, 4 Me. 368. If, however, by reason of the loss, it cannot be ascertained who were the subscribing witnesses, other evidence is admissible. Jackson v. Vail, 7 Wend. 125 ; Davis v. Spooner, 3 Pick. 284.] Chap. IX.] THE LAW OF EVIDENCE. 183 the subscribing witness is blind ; ' the person by whom the document was executed is pre- pared to testify to his own execution of it ; 2 the person seeking to prove the document is prepared to prove an admission of its execution by the person who executed it, even if he is a party to the cause, 3 unless such admission be made for the purpose of, or has reference to the cause. 4 Article 67.* cases in which attesting witness need not be called. In the following cases, and in the case mentioned in Article 88, but in no others, a person seeking to prove the execution of a document required by law to be attested is *See Note XXVIII. [Appendix]. 1 Cronk v. Frith, 9 C. & P. 197; [see Cheeney v. Arnold, 18 Barb. 434-] 2 R. v. Harringworth, 4 M. & S. 353. [This is true, though parties are now competent to testify. Brigham v. Palmer, 3 Allen, 450 ; Jones v. Underwood, 28 Barb. 481 ; Weigandv. Sichel, 4 Abb. Dec. 592 ; Fletcher v. Perry, 97 Ga. 368 ; Russell v. Walker, 73 Ala. 315 ; Hess v. Griggs, 43 Mich. 397 ; cf. Rayburn v. Mason Lumber Co., 57 Mich. 273 ; contra, Bowling v. Hax, 55 Mo. 446 ; Garrett v. Hanshue, 53 O. St. 482.] * Call v. Dunning, 4 Ea. 53. See, too, Whyma7i v. Garth, 8 Ex. 803 ; Randall v. Lynch, 2 Camp. 357. [Fox v. Riel, 3 Johns. 477 ; Smith v. Carotin, 1 Cr. C. C. 99 ; Richmond, etc. R. Co. v. Jones, 92 Ala 218 ; Kinney v. Flynn, 2 R. I. 319 ; Warner v. B. &* O. R. Co., 31 O. St. 265. But a contrary rule became established in New York as to negotiable paper (see Jones v. Underwood, 28 Barb. 483 ; S. P. Williams v. Floyd, 1 1 Pa. 499 ; but see Art. 69, post, note 2). If the witnesses are dead, and the document lost or canceled, so that handwriting cannot be proved, evidence of admissions is re- ceivable {Jackson v. Vail, 7 Wend. 125; Kingwood v. Bethlehem, 13 N. J. L. 221 ; Elliott v. Dyche, 78 Ala. 150). So if the witnesses' testi- mony is insufficient. Frost v. Deering, 21 Me. 156.] 4 [Gr. Ev. i. §§ 569, 572 ; Blake v. Sawin, 10 Allen, 340 ; Jones v. Henry, 84 N. C. 320. Such admissions may be made in the pleadings 1 84 A DIGEST OF [Part II. not bound to call for that purpose cither the party who executed the deed or any attesting witness, or to prove the handwriting of any such party or attesting witness — ( t ) When he is entitled to give secondary evidence of the contents of the document under Article 71 (a); 1 (2) When his opponent produces it when called upon, and claims an interest under it in reference to the subject- matter of the suit ; 2 (3) 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. 3 4 {Robert v. Good, 36 N. Y. 408 ; Thorpe v. Keokuk Coal Co., 48 N. Y. 253). So both parties may waive proof by witness. Forsythe v. Har- din, 62 111. 206.] 1 Cooke v. Tanswell, 8 Tau. 450 ; Poole v. Warren, 8 A. & E. 588. [Razaleyv. Doe, 6 Blackf. (Ind.) 143. In Bright v. Young, 15 Ala. 112, which was a case of this kind, the subscribing witness was examined, but failed to prove the execution of the instrument with any degree of certainty, and it was held that circumstantial evidence was then receivable to show its execution and identity. See /ackson v. Woolsey, 1 1 Johns. 446.] 2 Pearce v. Hooper, 3 Tau. 60 ; Rearden v. A/inter, 5 M. & G. 204. [Gr. Ev. i. § 571; /aekson v. Kingsley, 17 Johns. 158; McGregor v. Wait, 10 Gray, 72 ; Woodstock Iron Co. v. Reed, 84 Ala. 493; see Balliett v. Fink, 28 Pa. 266 ; Adams v. O Connor, 100 Mass. 515.] As to the sort of interest necessary to bring a case within this exception, see Collins v. Bayntun, 1 Q. B. 118. 3 Plumer v. Briscoe, 11 Q. B. 46 ; [Scott v. Waithman, 3 Stark. 168 ; Gr. Ev. i. §§ 571, 573 ; see Battle v. Baird, 118 N. C. 854; McVicker v. Conkle, 96 Ga. 584, 585.] Bailey v. Bidwell, 13 M. & W. 73, would perhaps justify a slight enlargement of the exception, but the circum- stances of the case were very peculiar. Mr. Taylor (ss. 1650-1) con- siders it doubtful whether the rule extends to instruments executed by corporations, or to deeds enrolled under the provisions of any act of Parliament, but his authorities hardly seem to support his view; at all events, as to deeds by corporations. *■* [The following are additional exceptions : (a) It is a rule in some States that proof by a subscribing witness is Chap. IX.] THE LAW OF EVIDENCE. 185 Article 68. proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. 1 . ^^. Article 69. proof of document not required by law to be attested. An attested document not required by law to be at- tested may in all cases whatever, civil or criminal, be proved as if it was unattested. 2 not required when the instrument is not directly in issue, but only comes incidentally or collaterally in question (Gr. Ev. i. § 573 b ; Wh. Ev. i. § 724 ; Kitchen v. Smith, lot Pa. 452 ; Ayers v. Hewett, 19 Me. 281 ; Rand v. Dodge, 17 N. H. 343, 357 ; Curtis v. Belknap, 21 Vt. 433 ; Steiner Bros. v. Tranum, 98 Ala. 315 ; see Co mm. v. Castles, 9 Gray, 121 ; Smith v. N. Y. C. R. Co., 4 Abb. Dec. 262 ; post, p. 190, note). (b) In many States recorded deeds and other instruments may be proved by duly authenticated copies, without calling any subscribing witness ; or the deed, etc., as acknowledged or proved and certified, so as to be recorded, may be given in evidence. But the rules vary in different States. See Gragg v. Learned, 109 Mass. 167 ; Sudlow v. Warshing, 108 N. Y. 520 ; Brown v. Oldham, 123 Mo. 621 ; N. Y. Code Civ. Pro. §§ 935-937 ; Maine Rev. St. c. 82. s. no ; Wh. Ev. i. §740.] 1 "Where an attesting witness has denied all knowledge of the matter, the case stands as if there were no attesting witness." Talbot v. Hodson, 7 Tau. 251, 254. [Hamsher v. Kline, 57 Pa. 397; Matter of Cottrell, 95 N. Y. 329 ; Patterson v. Tucker, 9 N. J. L. 322 ; Barne- wall v. Murrell, 108 Ala. 366; Thomas v. Le Baron, 8 Met. 355 ; Webb v. Dye, 18 W. Va. 376 ; cf. Tompson v. Fisher, 123 Mass. 559. So gen- erally if the witness's testimony is inadequate to prove execution. Harrington v. Gable, 81 Pa. 406 ; Frost v. Deering, 21 Me. 156.] 2 17 & 18 Vict. c. 125, s. 26 ; 28 & 29 Vict. c. 18, ss. 1, 7. [Similar statutes are in force in some States of this country (Laws of 1883, N. Y. c. 195 ; Pub. St. R. I. c. 214, s. 41 ; 3 How. St. (Mich.) § 7531, a ; i86 A DIGEST OF [Part II. Article 70. secondary evidence. Secondary evidence means — ( 1 ) Examined copies, exemplifications, office copies, and certified copies : l (2) Other copies made from the original and proved to be correct : 2 (3) Counterparts of documents as against the parties who did not execute them : 3 (4) Oral accounts of the contents of a document given by some person who has himself seen it. 4 Article 71. cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the contents of a document in the following cases : — Laws of Md. of 1888, c. 545 ; cf. 111. Rev. St. p. 543, s. 51 (ed. 1883) ; Medary v. Cathers, 161 Pa. 87). But by the common-law rule, which still generally prevails, if a document is actually attested, though the law does not require its attestation, its execution must be proved by the attesting witness, or as otherwise prescribed in Art. 66 {Giannonc v. Fleetwood, 93 Ga. 491). As to the proof of unattested documents, see Nichols v. Allen, 112 Mass. 23 ; St. John v. Amer. Ins. Co., 2 Duer, 419 ; Seibold v. Rogers, no Ala. 438 ; Pullen v. Hutchinson, 25 Me. 249.] 1 See Chapter X. 2 [See p. 180, note 1. A copy of a copy is sometimes admissible. Cameron v. Peck, 37 Ct. 555 ; Winn v. Patterson, 9 Pet. 663.] z Munnv. Godbold, 3 Bing. 292. [Loringv. Whittanore, 13 Gray, 228 ; see p. 179, note 2.] 4 [The witness must be able to prove the substance of the contents of Chap. IX.] THE LAW OF EVIDENCE. 187 (a) When the original is shown or appears to be in the possession or power of the adverse party, and when, after the notice mentioned in Article 72, he does not produce it ; * (b) When the original is shown or appears to be in the possession or power of a stranger not legally bound to produce it, and who refuses to produce it after being served with a subpoena duces tecum, or after having been sworn as a witness and asked for the document and hav- ing admitted that it is in court ; 2 the document. Edwards v. Noyes, 65 N. Y. 125 ; Richard's Appeal, 122 Pa. 547 ; Mayor of Baltimore v. War, yy Md. 593 ; Camden v. Belgrade, 78 Me. 204.] 1 R. v. Watson, 2 T. R. 201. Entick v. Carrington, 19 S. T. 1073, ' s cited by Mr. Phillips as an authority for this proposition. I do not think it supports it, but it shows the necessity for the rule, as at com- mon law no power existed to compel the production of documents. [Comm. v. Shurti, 145 Mass. 150; Dunbar v. U. S., 156 U. S. 185; Bishop v. Amer. Preservers' Co., 157 111. 284 ; Carland v. Cunning- ham, 2,7 Pa. 228; Keagle v. Pessell, 91 Mich. 618; Gaffer v. Amer. Mortgage Co., yy la. 736 ; Golden v. Cornier, 89 Ala. 598 ; see Art. y 2, post. The party refusing to produce on notice incurs the penalty of having all inferences from the secondary evidence, if such evidence be imperfect, vague, or uncertain, taken most strongly against himself (Cahen v. Continental Ins. Co., 69 N. Y. 300 ; Cartierv. Troy Lumber Co., 138 111. 533 ; McGuiness v. School District, 39 Minn. 499). Notice need not be given to a party who has admitted that the original document is lost or destroyed. R. v. Haworth, 4 C. & P. 254 ; Barmby v. Phimmer, 29 Neb. 64 ; but see Burlington Lumber Co. v. Whitebreast Co., 66 la. 292.] 2 Mills v. Oddy, 6 C. & P. 732 ; Marston v. Downes, 1 A. & E. 31. [As where an attorney refuses to produce a document of his client {Brandt v. Klein, \y Johns. 335 ; Hubbell v.Judd, etc. Oil Co., 19 Alb. L. J. 97 ; Stokoe v. St. Paul, etc. R. Co., 40 Minn. 545 ; see Arts. 1 15, 118, 119, post); or a witness refuses, because the document will crim- inate him {State v. Gurnee, 14 Kan. in); or the document is a public one on file in a public office and so not required to be produced. Cor- belt v. Gibson, 16 Blatch. 334 ; cf In re Hirsch, 74 F. R. 928 ; see p. 193, note 1, post.] A DIGEST OF [Part II. (c) When the original has been destroyed or lost, and proper search has been made for it ; ' [d) When the original is of such a nature as not to be easily movable, 2 or is in a country from which it is not permitted to be removed ; 3 1 i Ph. Ev. 452; 2 Ph. Ev. 281 ; T. E. (from Greenleaf) s. 309. [Man- deville v. Reynolds, 68 N. Y. 528 ; Slebbins v. Duncan, 108 U. S. 32 ; JMc Council v. Wildes, 153 Mass. 487 ; Gorgas v. Hertz, 150 Pa. 538. Diligent search must ordinarily be shown, exhausting all reasonable means of discovery (Simpson v. Dull, 3 Wall. 460 ; Johnson v. Am- wine, 42 N. J. L. 451; Kearney v. Mayor of N. Y, 92 N. Y. 617 ; Dar- row v. Pierce, 91 Mich. 63 ; Mullanphy Bk. v. Schott, 135 111. 655 ; McCollisterv. Yard, 90 la. 621). But the less the importance of the instrument, the less the diligence required (American Ins. Co. v. Rosenagle, 77 Pa. 507 ; Hatch v. Carpenter, 9 Gray, 271). Proof of the existence and genuineness of the lost instrument is required, in order that secondary evidence may be admissible. Nichols v. King- dom Iron Co., 56 N. Y. 618 ; Guntherv. Bennett, 72 Md. 384 ; Krise v. Neason, 66 Pa. 253.] The loss may be proved by an admission of the party or his attorney (R. v. Haworth, 4 C. & P. 254 ; [Pentecost v. Stale, 107 Ala. 81]). [A party who has voluntarily destroyed a document cannot give secondary evidence of its contents, unless he shows his act to have been with innocent intent. Potter v. Adams, 125 Mo. 118; Steele v. Lord, 70 N. Y. 280 ; Bagley v. McMickle, 9 Cal. 430 ; Jones v. Knauss, 31 N. J. Eq. 609 ; Joannes v. Bennett, 5 Allen, 169.] 2 Mortimer v. McCallan, 6 M. & W. 67, 68, (this was the case of a libel written on a wall); Bruce v. Nicolopulo, 11 Ex. 133, (the case of a placard posted on a wall). [Gr. Ev. i. § 94 ; North Brookfield v. Warren, 16 Gray, 171, (inscription on a tombstone); Stearns v. Doe, 12 Gray, 482, (name of a vessel); cf. Cozzens v. Higgins, 1 Abb. Dec. 451, (photograph of a place ; see Art. 62, ante, and note).] 3 Alivon v. Fumival, 1 C. M. & R. 277, 291-2. [Mauri v. Heffernan, 13 Johns. 58. So if the original is in the possession of a person in an- other State or country, so that its production cannot be compelled (Elwell v. Mersick, 50 Ct. 272 ; Tucker v. Woolsey, 6 Lans. 482 ; Stevens v. Miles, 142 Mass. 571; Knickerbocker v. Wilcox, 83 Mich. 200; Beattie v. Hilliard, 55 N. H. 428 ; Fosdick v. Van Horn, 40 O. St. 459 ; Burton v. Driggs, 20 Wall. 125, 134; Memphis, etc. R. Co. v. Hcm- bree, 84 Ala. 182 ; Zellerbach v. Allenberg, 99 Cal. 57 ; Otto v. Trump, Chap. IX.] THE LAW OF EVIDENCE. 189 (e) When the original is a public document ; J {/) [When the party has been deprived of the original by fraud, so that it cannot be procured.] 2 (g) When the original is a document for the proof of which special provision is made by any act of Parliament, or any law in force for the time being ; 3 or (h) When the originals consist of numerous documents which cannot conveniently be examined in court, and the fact to be proved is the general result 4 of the whole col- 115 Pa. 425, 430). These cases do not declare it necessary to take his deposition, but in some cases his deposition has been taken, and secondary evidence of the document received because he would not give up the original {Bullis v. Eastern, 96 la. 513; Deitz v. Regnier, 27 Kan. 94 ; L Herbette v. Pittsfield Nat. Bk., 162 Mass. 137; in these foregoing cases he gave a copy which was used; Forrest v. Forrest, 6 Duer, 102, 137 ; Fisher v. Greene, 95 111. 94). Some cases, however, hold that mere absence of the document from the State is not enough, but that the deposition of the witness should be taken or some proper effort made to obtain the original. Wiseman v. N. P. R. Co., 20 Or. 425 ; Wood v. Cidlen, 13 Minn. 394 ; Shaw v. Mason, 10 Kan. 184 ; see Knowlton v. Knowlton, 84 Me. 283; Thomson - Houston Electric Co. v. Palmer, 52 Minn. 1 74-] 1 See Chapter X. ; [including public records ; see Gr. Ev. i. § 91.] 2 [Grimes v. Kimball, 3 Allen, 518 ; Nealley v. Greenough, 25 N. H. 325 ; Mitchell v.Jacobs, 17 111. 235 ; see Marlow v. Marlon/, 77 111. 633- This paragraph is substituted for one which is peculiar to English law. It will be found in the Appendix, Note XLIX.] 3 See Chapter X. [Many such statutes are in force in this country.] 4 Roberts v. Doxen, Peake, 116; Meyer v. Sefton, 2 Stark. 276. The books, etc., should in such a case be ready to be produced if required. Johnson v. Kershaw, 1 De G. & S. 264. [Gr. Ev. i. § 93 ; Wh. Ev. i. § 80 ; Burton v. Driggs, 20 Wall. 125 ; Von Sachs v. Kretz, 72 N. Y. 548 ; Boston 6>-» W. R. Co. v. Dana, 1 Gray, 83 ; Chicago, etc. R. Co. v. Wolcott, 141 Ind. 267; State v. Findley, 101 Mo. 217 ; Wolfordv. Farnham, 47 Minn. 95.] iqo A DIGEST OF [Part II. lection ; provided that that result is capable of being ascertained by calculation. 1 1 [Besides the cases here stated, another has been asserted, viz., that parol evidence of the contents of documents may be given, when they do not form the foundation of the cause, but merely relate to some collateral fact (M Fadden v. Kingsbury, 1 1 Wend. 667 ; Roose- velt \. Eckard, 17 Abb. N. C. 58; Maxwell v. Hofheimer, 81 Hun, 551 ; Coonrodv. Madden, 126 Ind. 197 ; Rodgers v. Crook, 97 Ala. 722 ; Faulcon v. Johnston, 102 N. C. 264 ; cf. Daniels v. Smith, 130 N. Y. 696 ; Phinney v. Holt, 50 Me. 570). This doctrine has been criti- cised (Ph. Ev. Amer. Ed., ii. *5 13 ; Jones v. Underwood, 28 Barb. 481), but there is now much weighty authority in its support. So the contents of a document, as a notice, placard, inscription, etc., may be proved by parol, as a means of describing the place where it hangs, of identifying the object to which it is attached, of showing the nature and purpose of a display or exhibition in which it is carried, etc. {Comm. v. Brown, 124 Mass. 318 ; Comm. v. Morrell, 99 id. 542 ; R. v. Hunt, 3 B. & Aid. 566). Parol evidence has also been received of the contents of a document which was a transient casual paper, not likely to be preserved, or when such contents were referred to incidentally or by way of inducement or recital, etc. {State v. Credle, 91 N. C. 640 ; People v. Jones, 106 N. Y. 523, 526 ; Chrysler v. Renois, 43 N. Y. 209 ; N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189, 193 ; Massey v. Farmers' Nat. Bk., 113 111. 334). A document may also be so far collateral to the question in issue, though relating to the same subject-matter, that its production is not required, nor proof of its contents necessary. In such a case parol evidence is receivable of the transaction to which it relates ; as e.g., where a contract is made by parol, but a written memorandum of its terms is made at the same time ; the writing may, however, be competent evidence to corroborate the oral testimony (Lathrop v. Brain hall, 64 N. Y. 365 ; Thomas v. Nelson, 69 N. Y. 118 ; Mobile, etc. R. Co. v. Jurey, 1 1 1 U. S. 584 ; Freeman v. Bartlett, 47 N. J. L. 33 ; Adams v. Sullivan, 100 Ind. 8). So the existence of a fact or a state of facts, as a tenancy, a partnership, etc., may be proved by parol evidence, though it was created by the use of a document (Ham»io>: v. Sexton, 69 Ind. 37 ; Uhl v. Moorhous, 137 Ind. 445 ; Gallagher v. London Assur. Corp., 149 Pa. 25 ; State v. Grant, 104 N. C. 908 ; East v. Pace, 57 Ala. 521), or though a writing was made as some record or memorial thereof {Hewitt v. State, 121 Ind. 245 ; Comm. v. Dill, 156 Mass. 226; cf. Comm. v. Stevens, 155 id. 291). So the payment of a debt may be proved by parol, without producing the written receipt Chap. IX.] THE LAW OF EVIDENCE. 191 Subject to the provisions hereinafter contained, any secondary evidence of a document is admissible. 1 In case {h) 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. Questions as to the existence of facts rendering secondary evidence of the contents of documents ad- missible are to be decided by the judge, unless in de- ciding such a question the judge would in effect decide the matter in issue.* {Kingsbury v. Moses, 45 N. H. 222) ; so oftentimes of written proposals, notices, demands, etc. (Gr. Ev. i. §§ 89, 90 ; Wh. Ev. i. §§ 64, 77 ; Jones v. Call, 93 N. C. 170 ; Mich. Land, etc. Co. v. Republic T'p, 65 Mich. 628). So collateral facts about a document may be proved by parol ( Winslow v. State, 76 Ala. 42 ; see p. 224, note 3, post). As to proof of a person's holding a public office, see Art. go, post, last paragraph.] 1 If a counterpart is known to exist, it is the safest course to produce or account for it (Munn v. Godbold, 3 Bing. 297 ; R. v. Castleton, 7 T. R. 236). [It is the English doctrine that there are no degrees in secondary evidence, and a party may introduce any form thereof (as e. g., oral testimony instead of a copy), if the original cannot be had. Some American States adopt the same doctrine (Comm. v. Smith, 151 Mass. 491 ; Magie v. Herman, 50 Minn. 424 ; Eslow v. Mitchell, 26 Mich. 500; Carpenter v. Dame, 10 Ind. 125). But generally in this country a party must produce the best form of secondary evidence that is or appears to be procurable by him, as e. g., a copy instead of oral testimony (Cornell v. Williams, 20 Wall. 226 ; Reddington v. Oilman, 1 Bos. 235 ; Lazzaro v. Maugham, 10 Misc. 230 ; Mandeville v. Reynolds, 68 N. Y. 528, 533 ; Stevenson v. Hoy, 43 Pa. 191 ; Illinois Land Co. v. Bonner, 75 111. 315; Harvey v. Thorpe, 28 Ala. 250; Higgins v. Reed, 8 la. 298 ; Ford v. Cunningham, 87 Cal. 209). As to counterparts, see Poignand v. Smith, 8 Pick. 272 ; Riggs v. Tayloe, 9 Wheat. 483 ; Art. 64, ante. Of duplicate originals, all must be shown to be lost, destroyed, etc., before secondary evidence will be received. Dyer v. Fredericks, 63 Me. 173, 592 ; McMakin v. Weston, 64 Ind. 270 ; Ala. Southern R. Co. v. Alt. Vernon Co., 84 Ala. 173.] 2 [Mason v. Libbey, 90 N. Y. 683 ; Elivell v. Mersick, 50 Ct. 272.] 192 A DIGEST OF [Part II Article 72.* rules as to notice to produce. Secondary evidence of the contents of the documents referred to in Article 71 (a) may not be given, unless the party proposing to give such secondary evidence has, if the original is in the possession or under the control of the adverse party, given him such notice to produce it as the court regards as reasonably sufficient to enable it to be procured ; ' or has, if the original is in the possession of a stranger to the * See Note XXIX. [Appendix]. 1 Dtuyer v. Collins, 7 Ex. 648. [Foster y. Newbrough, 58 N. Y. 481; Draper v. Hatfield, 124 Mass. 53 ; People v. Walker, 38 Mich. 159 ; Dunbar v. U. S., 156 U. S. 185 ; Mayor of Baltimore v. War, 77 Md. 593, 603 ; Trelever v. Northern Pac. R. Co., 89 Wis. 598 ; Eilbert v. Finlcbeiner, 68 Pa. 243. Notice is not required unless the original is in the party's possession or control {Roberts v. Spencer, 123 Mass. 397 ; Baker v. Pike, 33 Me. 213 ; Shepard v. Giddings, 22 Ct. 282). The notice may be given to the party's attorney (Brown v. Littlefield, 7 Wend. 454; Den v. M'Allister, 7 N. J. L. 46). The notice must be given a sufficient time beforehand (Bourne v. Buffingtoti, 125 Mass. 481; U. S. v. Duff, 6 F. R. 45 ; DeWitt v. Prescott, 51 Mich. 298 ; McPherson v. Rathbone, 7 Wend. 216 ; Utica Ins. Co. v. Cadwell, 3 Wend. 296); if the time allowed be unreasonably short, secondary evidence will not be admissible (Id.; Mortlock v. Williams, 76 Mich. 568 ; Dade v. sEtna Pis. Co., 54 Minn. 336). The notice must also definitely describe the document required ( Walden v. Davison, 1 1 Wend. 65 ; Arnstine v. Preat, 71 Mich. 561; McDowell v. AZtna Ins. Co., 164 Mass. 444 ; see Gr. Ev. i. § 563 ; Art. 71, ante ; Arts. 138, 139, post). Whether sufficient notice has been given is a question for the court to determine (Comm. v. Sullivan, 156 Mass. 229 ; Hanselmau v. Doyle, 90 Mich. 142). In the Federal courts, the production of books and writings by a party may also be required under a special statute in actions at law 1 V . S. Rev. St. § 724 ; Lowenstein v. Carey, 12 F. R. 811, and note ; Exchange .Wit. Bk. v. Washita Co., 61 id. 190). Statutes in many States also allow discovery and inspection of documents before trial. N. Y. Code Civ. Pro. §§ 803-809 ; Mass. Pub. St. c. 167, ss. 49-60 ; Laws Chap. IX.] THE LAW OF EVIDENCE. 193 action, served him with a subpoena duces tecum requiring its production ; ' if a stranger so served does not produce the document, and has no lawful justification for refusing or omitting to do so, his omission does not entitle the party who served him with the subpcena to give secondary evidence of the contents of the document. 2 Such notice is not required in order to render secondary evidence admissible in any of the following cases — (1) When the document to be proved is itself a notice ; 3 of Me. of 1893, c. 217 ; Pynchon v. Day, 118 111. 9 ; Arnold v. Paw- tuxet Co., 18 R. I. 189.] 1 Newton v. Chaplin, 10 C. B. 56-69. \_Aikin v. Martin, 1 1 Pai. 499 ; Lane v. Cole, 12 Barb. 680 ; Baker v. Pike, 33 Me. 213 ; In re S 'hep- hard, 3 F. R. 12. So on examinations before masters and commis- sioners in Federal practice {Erie R. Co. v. Heath, 8 Blatch. 413 ; U. S. v. Tilden, 10 Ben. 566). Such a subpoena may be served on a party, now that parties are competent witnesses {Shelp v. Morrison, 13 Hun, 1 10 ; Murray v. Els ton, 23 N. J. Eq. 212 ; Cummer v. Kent Judge, 38 Mich. 351; but see Campbell v. Johnston, 3 Del. Ch. 94), or on a cor- poration, by serving the proper officer {Johnson Steel Rail Co. v. North Branch Co., 48 F. R. 195 ; Ex parte Brown, 72 Mo. 83 (tele- grams); U. S. v. Babcock, 3 Dill. 566 (telegrams); N. Y. Code Civ. Pro. § 868 ; In re Sykes, 10 Ben. 162). The writ should describe documents definitely {State v. Davis, 117 Mo. 614 ; U. S. v. Hunter, 15 F. R. 712 ; Ex parte Jayncs, 70 Cal. 638), and is compulsory, unless it is set aside, or the witness is privileged {Boncsteel 'v. Lynde, 8 How. Pr. 226, 352 ; Corbett v. Gibson, 16 Blatch. 334 ; In re Hirsch, 74 F. R. 928 ; John- son v. Donaldson, 3 F. R. 22; see Art. 71 {b), ante; Arts. 1 18-120, post). A subpcena duces tecum may only be used to compel the pro- duction of documents, books, drawings, and the like, but not of such objects as iron plates, patterns for stove castings, etc. Johnson Steel Rail Co. v. North Branch Co., 48 F. R. 191.] 2 R. v. Llanjaethly, 2 E. & B. 940. [The recusant witness may be sued for damages {Lane v. Cole, 12 Barb. 680), punished for contempt {Holly MJg. Co. v. Venner, 74 Hun, ^58, 143 N. Y. 639), and is gener- ally subject also to a statutory penalty. When he is a party, his plead- ing has sometimes been stricken out. Shelp v. Morrison, 13 Hun, 1 10.] 3 [Quinlcy v. Atkins, 9 Gray, 370 ; Michigan, etc. Land Co. v. Re- public Township, 65 Mich, 628 ; Pensacola, etc. R. Co. v. Brayton, 34 194 A DIGEST OF [Part II. (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 obtained possession of the original from a person sub- poenaed to produce it ; 2 (4) W T hen the adverse party or his agent has the original in court. 3 4 Fla. 471; Edwards v. Bonneau, 1 Sandf. 610; Gethin v. Walker, 59 Cal. 502 ; Morrow v. Comm., 48 Pa. 305 ; Central Bk. v. Allen, 16 Me. 41.] 1 How v. Hall, 14 Ea. 247. In an action on a bond, no notice to pro- duce the bond is required. See other illustrations in 2 Ph. Ev. 373 ; T. E. s. 422. [Lawson v. Bachman, 81 N. Y. 616 ; Morrill v. B. &= M. R. Co., 58 N. H. 68 ; Dana v. Conant, 30 Vt. 246 ; Railway Co. v. Cronin, 38 O. St. 122 ; as e. g., in an action of trover for the document {Hotchkiss v. Mosher. 48 N. Y. 478). The rule applies also in criminal cases, as e. g., where the defendant was charged by the indictment with fraudulently possessing himself of certain documents. State v. Maybcrry, 48 Me. 218 ; cf. People v. Swetland, 77 Mich. 53.] 2 Leeds v. Cook, 4 Esp. 256. [Gray v. Kemahan, 2 Mill (S. Car.) 65 ; cf. Bonestecl v. Lynde, 8 How. Pr. 226, 352.' So where a party tore off a part of a document with intent to destroy, notice to produce the por- tion he took was held unnecessary. Scott v. Pentz, 5 Sandf. 572.] 3 Formerly doubted, see 2 Ph. Ev. 278, but so held in Dwyer v. Col- lins, 7 Ex. 639. [A verbal notice'in court is in this case sufficient to let in secondary evidence (Overlock v. Hall,8i Me/348 ; Field v. Ze- mansky, 9 111. App. 479; Winslow v. State, 92 Ala. 78; Downer v. Button, 26 N. H. 338, 343 ; Chadwick v. U. S., 3 F. R. 750 ; Kerr v. McGuire, 28 N. Y. 446; see Atwellv. Miller, 6 Md. 10; Barton v. Kane, 1 7 Wis. 37 ; Dole v. Belden, 1 X. Y. S. 667); but some early cases are to the contrary ( Watkins v. Pintard, 1 N. J. L. (Coxe) 378 ; Mi/li- ken v. "Barr, 7 Pa. 23). The court may compel a witness to produce a document which he has in court. Boynlon v. Boynton, 25 How. Pr. 490, 41 N. Y. 619 ; Shelp v. Morrison, 13 Hun, no, 113; McGregor v. Wait, 10 Gray, 72.] 4 [Additional rules are as follows : (a) A duplicate original maybe given in evidence, without giving notice to produce the other (Gr. Ev. i. § 561; Totten v. Bucy, 57 Md. 446 ; Wcstbrook v. Fulton, 79 Ala. 510 ; see Art. 64, ante). {b) Absence of the party having the document from the State is no Chap. IX.] THE LAW OF EVIDENCE. 195 excuse for not giving notice, if he can be found (Car/and v. Cunning- ham, 37 Pa. 228 ; Dade v. A£ttia Ins. Co., 54 Minn. 336). Aliter, if a stranger out of the State have the document {Stirling v. Buckingham, 46 Ct. 461; see Burton v. Driggs, 20 Wall. 125, 134 ; Art. 71 (d),ante). (c) In States where the contents of an instrument may be proved by parol, because it is only collaterally in question, notice to produce the instrument is not necessary. Coonrodv. Madden, 126 Ind. 197 ; Askew v. Steiner, 76 Ala. 2j8, 221 ; see ante, p. 190, note.] i^ ro6 A DIGEST OF [Part II. CHAPTER X. PROOF OF PUBLIC DOCUMENTS, Article 73. PROOF OF PUBLIC DOCUMENTS. When a statement made in any public document, register, or record, judicial or otherwise, or in any pleading or deposition kept therewith is in issue, or is relevant to the issue in any proceeding, the fact that that statement is contained in that document, may be proved in any of the ways mentioned in this chapter. 1 Article 74. PRODUCTION OF DOCUMENT ITSELF. The contents of any public document whatever may be proved by producing the document itself for inspection from proper custody, and identifying it as being what it professes to be. 2 1 See Articles 34 and 90. '-' [Gr. Ev. i. §§ 479, 482-484 ; Wh. Ev. i. §§635-660; Arts. 33 and 34, ante, and cases cited; Evanston v. Gunn, 99 U. S. 660; Taylor v. Adams, 115 111. 570; Phelps v. Hunt, 43 Ct. 194. A printed report of a decision is not competent original evidence of a judgment {Donellan v. J lardy, 57 Ind. 393), unless the original record has been destroyed {Frost v. Frost, 21 S. Car. 501). If a public record be lost, its contents may be proved by the testimony of a witness, no better evidence being available. Richard 's Appeal, 122 Pa. 547.] Chap. X.] THE LAW OF EVIDENCE. 197 Article 75* examined copies. The contents of any public document whatever may in all cases be proved by an examined copy. 1 An examined copy is a copy proved by oral evidence to have been examined with the original and to corre- spond therewith. 2 The examination may be made either by one person reading both the original and the copy, or by two persons, one reading the original and the other the copy, and it is not necessary (except in peerage cases 3 ) that each should alternately read both. 4 Article j6.\ [general records of the nation or state.] [Copies of any documents, records, books, or papers in any of the executive departments of the United States Government, authenticated under the seals of such de- partments, respectively, are admitted in evidence equally with the originals ; and the same is true of copies of doc- * See Note XXX. [Appendix] ; also Doe v. Ross, 7 M. & W. 106. ■j" [For original Article, see Note LI. Appendix.] 1 [Gr. Ev. i. §§ 485, 508 ; State v. Loughlin, 66 N. H. 266.] 2 [Gr. Ev. i. § 508 ; State v. Lynde, 77 Me. 561 ; State v. Sfiaulding, 60 Vt. 228 ; Hill v. Packard, 5 Wend. 376, 387 ; Amer. Life Ins. Co. v. Rosenagle, 77 Pa. 507 ; see N. Y. Code Civ. Pro. § 962. It is also called a "sworn copy" (Id.; Gr. Ev. i. §§ 485, 501 ; Hubbell v. Meigs, 50 N. Y. 480, 492 ; Moore v. Gaiis Mfg. Co., 113 Mo. 98 ; State v. Clothier, 30 N. J. L. 351). An examined copy must be made by comparison with the original document, not by comparison with some other copy. Lasater v. Van Hook, 77 Tex. 650.] 3 Slane Peerage Case, 5 C. & F. 42. 4 2 Ph. Ev. 200, 231 ; T. E. ss. 1379, 1389 ; R. N. P. 113. [Kellogg v. Kellogg, 6 Barb. 116 ; see Krise v. Neason, 66 Pa. 253.] 198 A DIGEST OF [Part II. uments in various public offices, certified by the proper public officer and authenticated under his seal of office. 1 A similar rule as to the proof in State courts of public documents in State offices is commonly established by statutes of the States, respectively.] a Article 77.* exemplifications. An exemplification is a copy of a record set out either under the Great Seal or under the Seal of a court. 3 A copy made by an officer of the court, bound by law to make it, is equivalent to an exemplification, though it is sometimes called an office copy. 4 *See Note XXXI. [Appendix]. 1 [U. S. Rev. St. ss. 882-898 ; Ballew v. U. S., 160 U. S. iol ; decisions collected in Bump's Federal Procedure, pp. 552-562, and Foster's Fed. Pr. 1, § 268, 2d ed.] 2 [See N. Y. Code Civ. Pro. §§ 933, 957, 958 ; Mass. Pub. St. c. 169, s. 70. So statutes may provide that documents in U. S. offices may be so proved in State courts. N. Y-. Code Civ. Pro. §§ 943, 944.] 3 [The term applies primarily to domestic judicial records, and is here defined from that point of view (Gr. Ev. i. §§ 488, 501 ; Wh. Ev. i. § 95 ; Traction Co. v. Board of Works, 57 N. J. L. 315, 316 ; Patterson v. Winn, 5 Pet. 233). But it is often now applied both to domestic and to foreign records, laws, and documents, whether judicial or non- judicial. Lincoln v. Battelle, 6 Wend. 475 ; Ropes v. Kemps, 38 Fla. 233; Lazier v. Westcott, 26 N. Y. 146; Watson v. Walker, 23 N. H. 471 ; Spaulding v. Vincent, 24 Yt. 501.] 4 [ Traction Co. v. Board of Works, 57 N. J. L. 316. This rule applies to all courts within the same jurisdiction (Gr. Ev. i. § 507). Copies of public records, whether judicial or otherwise, made by a public officer authorized by law to make them, are also often termed " office copies," as e g., copies of recorded deeds (Graggv. Learned, 109 Mass. 167; JLlwell v. Cunningkam, 74 Me. 127). They are also called "certified copies" (Samuels v. Borrowscale, 104 Mass. 207). They are declared admissible in many cases in courts of the same jurisdiction without further authentication. The officer may be required to attach his seal of office, if he has one. See Art. 79.] Chap. X.] THE LAW OF EVIDENCE. 199 An exemplification is equivalent to the original docu- ment exemplified. 1 Article 78.* copies equivalent to exemplifications. A copy made by an officer of the court, who is author- ized to make it by a rule of court, but not required by law to make it, is regarded as equivalent to an exemplifica- tion in the same cause and court, but in other causes or courts it is not admissible unless it can be proved as an examined copy. 2 Article 79. certified copies. It is provided by many statutes that various certificates, official and public documents, documents and proceedings of corporations, and of joint stock and other companies, and certified copies of documents, by-laws, entries in registers and other books, shall be receivable in evidence of certain particulars in courts of justice, provided they are respectively authenticated in the manner prescribed by such statutes. 3 * See Note XXXI. [Appendix]. 1 [This is spoken of domestic records, etc.; foreign records may need additional authentication. Gr. Ev. i. § 501 ; Art. 84, post.] - [Gr. Ev. i. § 507; Wh. Ev. i. §§ 104, 105 ; Kellogg v. Kellogg, 6 Barb. 116, 130 ; Traction Co. v. Board of Works, 57 N. J. L. 313, 316. These are called "office copies" (Id.). But certified copies authorized by- statute (or "office copies ' in the broader sense of the term ; see pre- ceding Article) are now commonly used in their place, being admis- sible in all domestic courts.] 3 8 & 9 Vict. c. 113, preamble. Many such statutes are specified in T. E. s. 1440 and following sections. See, too, R. N. P. 114-5. [See, e. g., U. S. Rev. St. ss. 882-900 ; N. Y. Code Civ. Pro. §§ 921-924, 928- 941, 943-947, 957-962 ; Northumberland Co. v. Zimmerman, 75 Pa. 26; 200 A DIGEST OF [Part II. Whenever, by virtue of any, such provision, any siich certificate or certified copy as aforesaid is receivable in proof of any particular in any court of justice, it is admis- sible as evidence if it purports to be authenticated in the manner prescribed by law without proof of any stamp, seal, or signature required for its authentication or of the official character of the person who appears to have signed it.' "Whenever any book or other document is of such a pub- lic nature as to be admissible in evidence on its mere pro- duction from the proper custody, and no statute exists El-wood v. Flannigan, 104 U. S. 562 ; Get/tin v. Walker, 59 Cal. 502 ; Preston v. Evans, 56 Md. 476. In some States such copies may be used by virtue of immemorial usage {Chamberlin v. Ball, 15 Gray, 352). But it is sometimes provided, as in New York, that the common-law methods of proof may be used, as well as the special statutory methods (Code Civ. Pro. §962). Certificates or certified copies are not admissible in evidence unless authorized by law, and then only as to matters which the officer is required or authorized to certify. Water Comm'rs v. Lansing, 45 N. Y. 19; Parr v. Greenbush, 72 N. Y. 463; Way land v. Ware, 109 Mass. 248 ; Jay v. East Livernwre, 56 Me. 107 ; Francis v. Newark, 58 X. J. L. 522 ; People v. Lee, 112 111. 113.] 1 Ibid., s. 1. I believe the above to be the effect of the provision, but the language is greatly condensed. Some words at the end of the section are regarded as unmeaning by several text-writers. See, e.g., R. X. P. 116 ; 2 Ph. Ev. 241 ; T. E. s. 7, note 1. Mr. Taylor says that the concluding words of the section were introduced into the act while passing through the House of Commons. He adds, they appear to have been copied from 1 & 2 Vict. c. 94, s. 13 (see Art. 76) "by some honorable member who did not know distinctly what he was about." They certainly add nothing to the sense. [*S. P. Thurman v. Cameron, 24 Wend. 87 ; Trustees of Canandarqua Academy v. McKecJinie, 19 Hun, 62, 90 X. Y. 618 ; Keichline v. Keichline, 54 Pa. 75 ; Kingman v. Coivlcs, 103 Mass. 283 ; Harris v. Doe, 4 Blackf . 369 ; Galvin v. Palmer, 113 Cal. 46 ; Bixby v. Carskaddon, 55 la. 533. Such copies or certifi- cates are, however, generally deemed only presumptive ox prima facie evidence, open to rebuttal. Id.; see N. Y. Code Civ. Pro. §§921-924, 928, 936.] Chap. X.] THE LAW OF EVIDENCE. 201 which renders its contents provable by means of a copy, any copy thereof or extract therefrom is admissible in proof of its contents, 1 provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted. 2 3 Article 80.* [documents and records of the several states admissible throughout the united states.] 4 [The records and judicial proceedings of the courts of any State or Territory or of any country subject to the jurisdiction of the United States, shall be proved or ad- *[For the original Article, see Note LI. Appendix.] 1 The words "provided it be proved to be an examined copy or ex- tract or," occur in the act, but are here omitted because their effect is given in Article 75. 2 14 & 15 Vict. c. 99, s. 14. [Some American decisions have main- tained this rule as a common-law principle (Gr. Ev. i. § 485 ; U.. S. v. Percheman, 7 Pet. 51; People v. Lee, 112 111. 113); but the weight of authority is that certified copies of public documents are not admis- sible unless authorized by statute ( Traction Co. v. Board of Works, 57 N. J. L. 313 ; Selden v. Canal Co., 29 N. Y. 634 ; see, also, cases cited in note 1, p. 200, ante). But the use of certified copies is now so generally authorized by statute that this question as to the common- law doctrine has become of little practical importance.] 3 [At this point Mr. Stephen adds the English statutory rule that "every such officer must furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words. 14 & 15 Vict. c. 99, s. 14." So in this country it is a general rule that when the use of certified copies is authorized by statute, the proper officer must give such a copy on payment of his legal fees for the same. U. S. Rev. St. ss. 213, 460, 461, 828, 892, 4194, 4195 ; N. Y. Code Civ. Pro. § 961.] 4 [The acts of Congress herein stated were enacted under the author- ity of the constitutional provision declaring that " full faith and credit 2o2 A DIGEST OF [Part II. mitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attesta- tion is in due form. 1 And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." U. S. Constitu- tion, Art. iv. § i.] 1 [As to the construction of this provision, see Gr. Ev. i. §§ 504-506; Wh. Ev. i. §§ 96-103; First Nat. Bk. v. Crosby, 179 Pa. 63. The authorities are fully collected in Bump's Fed. Pro. pp. 566-616. The attestation must be made by the clerk of the court ; that of a deputy clerk is not sufficient {Morris v. Patchin, 24 N. Y. 394); if the court has ceased to exist and its records have been transferred to another court, the clerk of the latter should attest {Folsom v. Blood, 58 N. H. 11). If the court has no seal, this fact should be stated. The certificate must be added by the judge of the court, if there be only one, but, when there are more than one, by the chief or presiding judge of the court, if any judge bears such title ( Van Storch v. Griffin, 71 Pa. 240; People v. Smith, 121 N. Y. 578 ; Andrews v. Flack, 88 Ala. 294 ; Jhrr- low v. Steel, 65 Mo. 611) ; this certificate must be that the attestation is in due form {i.e., in the form required in the State whence the record comes); if the judge certifies, not this fact but some other, the certificate is insufficient {Craigv. Brown, 1 Pet. C. C. 352; Morris v. Patchin, supra ; see Burnett v. Weld, 76 X. Y. 103). If the judge is also clerk of the court, he must attest and certify in each capacity {Keith Bros. v. Stiles, 92 Wis. 15). This statute does not apply to the Federal courts, but their records, when certified by the clerk of the court under its seal, are admissible in State courts and Federal courts alike {Tiirnbull v. Payson, 95 U. S. 418). Nor does it apply, as is generally held, to courts of inferior jurisdiction, as courts of justices of the peace {FarnswortJi v. Briggs, 6 N. H. 561 ; Ransom v. Wheeler, 12 Abb. Pr. 139; Case v. Hucy, 26 Kan. 553; Snyder v. Wise, 10 Pa. 157). The mode of proving their dockets and judgments is that pre- scribed by the laws of the several States, or by common law. See N. Y. Code Civ. Pro. §§ 948-95 1 ; Gr. Ev. i. § 505 ; Case v. Huey, supra.] Chap. X.] THE LAW OF EVIDENCE. 203 States as they have by law or usage in the courts of the State from which they^ire taken. 1 All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any countsy subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or ad- mitted in any court or office in any other State or Terri- tory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certifi- cate of the presiding justice of the court of the county, parish, or district, in which said office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal of the State or Territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenti- cated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified ; or, if given by such governor, secretary, chan- cellor or keeper of the great seal, it shall be under the great seal of the State, Territory, or country aforesaid in which it is made. And the said records and exemplifica- tions, so authenticated, shall have such faith and credit given to them in every court and office within the United vStates as they have by law or usage in the courts or of- fices of the State, Territory, or country as aforesaid, from which they are taken. 2 But these provisions do not preclude the several States 1 [U. S. Rev. St. s. 905 ; as to the effect of such records, see ante, Art. 47, note.] 2 [U. S. Rev. St. s. 906 ; Chase v. Caryl, 57 N. J. L. 545 ; Bump's Fed. Pro. p. 618 ; as to the scope of this section, see Snyder v. Wise, 10 Pa. 157, 158.] 204 A DIGEST OF [Part II. from establishing other modes of proving in their own courts the records of other States.] ' Article 8i.* [officially printed copies.] [The Revised Statutes of the United States, printed un- der the direction of the Secretary of State at the govern- ment printing-office and embracing the statutes of the United States general and permanent in their nature, in force on December i, 1873, as revised and consolidated, and including also the amendatory acts passed by Con- gress between that date and the year 1878, shall be legal evidence of the laws therein contained, in all the courts of the United States and of the several States and Terri- tories, but shall not preclude reference to, nor control, in case of any discrepancy, the effect of any original act as passed by Congress since December 1, 1873. And copies of the acts of Congress, printed as aforesaid at the close of each session of Congress, shall be legal evidence of the laws and treaties therein contained, in said courts. 2 * [For the original Article, see Note LI. Appendix.] 1 [Kingman v. Cowles, 103 Mass. 283 ; In re Ellis' Estate, 55 Minn. 401 ; Gardefi City Co. v. Miller, 157 111. 225 ; Otto v. Trump, 115 Pa. 425 ; Haives v. State, 88 Ala. 37 ; Gr. Ev. i. §§ 489, 505. Some States have adopted special statutes of this kind (Id.; Mass. Pub. St. c. 169, s. 67); but usually the modes prescribed by the acts of Congress are followed. The common-law methods, as by exemplified or examined copy, may also be used. Otto v. Trump, supra ; Dean v. Chapin, 22 Mich. 275.] • [U.S. Rev. St. (ed. 1878), Appendix, pp. 1 090-1 092 ; so as to the supplement to the Revised Statutes (21 Stat. L. 308; see Wright v. U. S., 15 Ct. of CI. 80). The acts of Congress were formerly published by Little and Brown, of Boston, and it is provided also that their edition shall be evidence of the laws and treaties therein contained (U. S. Rev. St. § 908). If there is any variance between an act of Chap. X.] THE LAW OF EVIDENCE. 205 It is common for State statutes to provide that the statute law of that State, and of other States and Terri- tories, and of the United States, may be read in evidence in its courts from a printed book, paper, or other publica- tion, duly published under official authority and direc- tion.] : Article 82.* [proof of the statutes of any state or territory.] [The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having- the seals of such State, Territory, or country affixed thereto, and shall then * [For the original Article, see Note LI. Appendix.] Congress, as found in the printed volume of statutes, and the original, as enrolled and deposited with the Secretary of State, the latter must prevail {McLaughlin v. Menotti, 105 Cal. 572), and the same rule holds good as to State statutes. Bruce v. State, 48 Neb. 570.] 1 [Harryman v. Roberts, 52 Md. 64 ; Tenant v. Tenant, no Pa. 478 ; Bride v. Clark, 161 Mass. 130; People v. McQuaid, 85 Mich. 123; Eagan v. Cojinelly, 107 111. 458 ; Falls v. U. S. Savings, etc. Co., 97 Ala. 417 ; Leach v. Linde, 70 Hun, 145, 142 N. Y. 628 ; Glenn v. Hunt, 120 Mo. 330 ; Rogero v. Zippel, 33 Fla. 625 ; see Mass. Pub. St. c. 169, ss. 69, 71 ; N. Y. Code Civ. Pro. §§ 932, 942, extending the same rule to printed copies of any proclamation, edict, decree, or ordinance, by the executive power of any other State or country. If the official publica- tion of the law of another State or country be not of recent date, still it will be presumed to contain the existing law, in the absence of evi- dence to the contrary {In re Huss, 126 N. Y. 537 ; People v. Caldcr, 30 Mich. 85). In some States where no statutes exist authorizing the statute law of other States to be read from a printed volume, this has yet been allowed by the courts (Gr. Ev. i. §§ 480, 489). The common-law mode of proof is by exemplification under the great seal, or by examined copy, and this may still be used (Id.). The evidence of experts may also be received (see p. 145, ante, note 1). As to the cases in which statutes are judicially noticed, see Art. 58 (1), ante.] 206 A DIGEST OF [Part II. be admitted in evidence in every other court within the United States.' But this provision does not preclude the several States from establishing other modes of proving in their own courts the written law of other States.] 2 Article 83.* [proclamations, acts of state, legislative journals, etc] [The contents of State papers, public documents, and legislative journals, printed by the official printer under the authority of Congress or a State legislature respec- tively (or of the proper branch thereof), 3 may be proved by the production of such a printed copy, as well as by the production of the originals. 4 Executive proclama- tions and acts of state may be proved by an officially printed copy. 5 Extracts from the journals of the Senate of the United States, or of the House of Representatives and of the * [For the original Article, see Note LI. Appendix.] 1 [U. S. Rev. St. s. 905 ; Bump's Fed. Pro. p. 566 ; Grant v. Coal Co., 80 Pa. 208 ; U. S. v. Amedy, 11 Wheat. 392 ; cf. McClerkin v. State, 105 Ala. 107.] 2 [Gr. Ev. i. § 489 ; Ansley v. Meikle, 81 Ind. 260 ; as to the other modes of proof allowed, see Art. 81 and notes; also Art. 49, ante, and note 1 on p. 145 ; this last Article also shows the mode of proving the common law of other States.] 3 [ Whiton v. Albany, etc. Ins. Co., 109 Mass. 24.] 4 [Gr. Ev. i. § 479; Watkins v. Hobnan, 16 Pet. 25; Bryan v. Forsyth, 19 How. (U. S.) 334 ; Gregg v. Forsyth, 24 Id. 179 ; Clemens v. Meyer, 44 La. Ann. 390; Milfordv. Greenbiish, ~j Me. 330; Lincoln v. Han- gan, 45 Minn. 451 ; Root v. King, 7 Cow. 613 ; Post v. Supervisors, 105 U. S. 667; cf. Marks v. Orth, 121 Ind. 10.] 6 [Gr. Ev. i. §§ 479, 492 ; Lurton v. Gilliam, 2 111. (1 Scam.) 577 ; but proclamations are, in general, judicially noticed ; see ante, Art. 58. There is a statute in New York as to the proof of executive de- crees and proclamations of other States and countries ; see ante, p. 205, note 1.] Chap. X.] THE LAW OF EVIDENCE. 207 executive journal of the Senate when the injunction of secrecy is removed, certified by the secretary of the Sen- ate or by the clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have, if produced and authenticated in court.] 1 Article 84.* [foreign written laws, acts of state, records, etc.] [Foreign written laws, acts of state, and judicial records may be proved by an exemplification of a copy under the great seal of the state, or by a copy proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer properly authorized by law to give a copy, which certificate must itself be duly authenticated. 2 Moreover, in some juris- dictions, a foreign written law may be proved by the statute book containing it, officially published by the gov- ernment which made the law, either with or without the testimony of experts.] 3 * [For the original Article, see Note LI. Appendix.] 1 [U. S. Rev. St. s. 895. For a like rule in State courts, see Post v. Supervisors, 105 U. S. 667 ; cf. Soicthivark Bk. v. Comm., 26 Pa. 446; see ante, p. 165, note 2.] 2 [These are the recognized common-law methods. Gr. Ev. i. §§ 488, 514; Church v. Hubbart, 2 Cr. 187 ; Lincoln v. Battelle, 6 Wend. 475 ; Watson v. Walker, 23 N. H. 471 ; Gunn v. Peakes, 36 Minn. 177; Jacobi v. Order of Germania, 73 Hun, 602 ; cf. Tess7)iann v. United Friends, 103 Mich. 185.] 3 [This is provided in some States by statute (Mass. Pub. St. c. 169, s. 73 ; Maine Rev. St. c. 82, s. 109; N. Y. Code Civ. Pro. §942 ; Laws of N. J. of 1893, c. 38 ; see In re Huss, 126 N. Y. 537 ; p. 145, note 1, ante), but is declared in Ennis v. Smith, 14 How. (U. S.) 401, as a common-law doctrine ; but see Hynes v. McDermott, 82 N. Y. 41, 56. Sometimes expert testimony is received without a printed copy of the 2o8 A DIGEST OF [Part II. law; see Art. 49, ante, and note 1 on p. 145, which also states the mode of proving a foreign unwritten law. As to proof of the statutes of sister States, see Articles 81 and 82, ante, and notes. Special State statutes are also in force, establishing modes of proving foreign records, etc. (Dunstan v. Higgins, 138 N. Y. 70; Wickershaui v. Johnstoji, 104 Cal. 407 ; Fisher v. Fielding, 67 Ct. 94 ; N. Y Code Civ. Pro. §§952-956). But these are not generally made exclusive of common-law methods. Id. §962.] Chap. XL] THE LAW OF EVIDENCE. 209 CHAPTER XI. PRESUMPTIONS AS TO DOCUMENTS. Article 85. presumption as to date of a document. When any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date, 1 and if more documents than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they ,were executed, 2 but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practised, and would, if practised, injure any person, or defeat the objects of any law. 3 1 [Gr. Ev. i. § 40, n.; Wh. Ev. ii. § 977 ; Livingston v.Arnoux, 56 N. Y. 507, 519 ; Smith v. Porter, 10 Gray, 66 ; Pringle v. Pringle, 59 Pa. 281. So a deed, found in the hands of the grantee, is presumed to have been delivered on the day of its date {People v. Snyder, 41 N. Y. 397; Scobey v.Walker, 114 Ind. 254); but this is not true of forged instruments {Remington Co. v. O' Dougherty, 81 N. Y. 474). The presumption as to all instruments may be rebutted by proof of the real date of execution. Parke v. Neeley, 90 Pa. 52 ; Gennania Bank v. Distler, 67 Barb. 333, 64 N. Y. 6i2 ; Knisely v. Sampson, 100 HI. 573-1 8 {Dudley v. Cadwell, 19 Ct.218; Jones v. Phelps, 2 Barb. Ch. 440; see Gilman v. Moody, 43 N. H. 239. So it is a general principle that two or more instruments of the same date, between the same parties, and relating to the same subject-matter, form parts of the same agreement or transaction. Mott v. Richtmyer, 57 N. Y. 49, 65 ; Hagerty v. White, 69 Wis. 317.] 3 i Ph. Ev. 482-3; T. E. s. 137; Best, s. 403; [see Philpot v. Gruninger, 14 Wall. 570.] 2io A DIGEST OF [Part II. Illustrations. (a) An instrument admitting a debt, and dated before the act of bankruptcy, is produced by a bankrupt's assignees, to prove the petitioning creditor's debt. Further evidence of the date of the transaction is required in order to guard against collusion between the assignees and the bankrupt, to the prejudice of creditors whose claims date from the interval between the act of bankruptcy and the adjudication. 1 (6) In a petition for damages on the ground of adultery letters are produced between the husband and wife, dated before the alleged adultery, and showing that they were then on affectionate terms. Further evidence of the date is required to prevent collusion to the prejudice of the person petitioned against. 2 Article 86. presumption as to stamp of a document. 3 When any document is not produced after due notice to produce, and after being called for, it is presumed to have been duly stamped, 4 unless it be shown to have remained unstamped for some time after its execution. 6 1 Anderson v. Weston, 6 Bing. X. C. 302; Sinclair v. Baggallay, 4 M. & W.318. 2 Houlston v. Smith, 2 C. & P. 24. [Gr. Ev. i. § 102, ii. § 57 ; Fratini v. Caslini, 66 Yt. 273 ; see Art. 11, Illustration (fc), ante.] "[The general abolition in this country, until recently, of laws requir- ing stamps upon written instruments has caused a dearth of modern decisions upon this subject. Analogous decisions of interest under the former law requiring revenue stamps are Van Rensellaerv. Vickery, 3 Lans. 57 ; Long v. Spencer, 78 Pa. 303 ; for a case in which stamps were used as seals, see Van Bokkelen v. Taylor, 62 X. Y. 105.] 4 Closmadeuc v. Carrel, 18 C. I>. 44. In this case the growth of the rule is traced, and other cases are referred to, in the judgment of Cress well, J. ■' Marine Investment Co. v. Haviside, L. R. 5 E. & I. App. 624. Chap. XL] THE LAW OF EVIDENCE. 211 Article 87. presumption as to sealing and delivery of deeds. When any document purporting to be and stamped as a deed, appears or is proved to be or to have been signed and duly attested, it is presumed to have been sealed and delivered, although no impression of a seal appears thereon. 1 1 Hall v. Bainbridge, 12 Q. B. 699-710 ; Re Sandilands, L. R. 6 C. P. 411. [These cases, so far as they support this Article, are based upon the English rule, that neither an impression upon wax or other tena- cious substance, nor a scroll or other mark, is necessary to constitute a seal ; (thus in Re Sandilands it was declared that sealing might be done with the end of a ruler or anything else and that there need be no visible impression). But in this country, except in States which have abolished the use of seals, the general rule is that no deed or other specialty is complete without a seal in one or the other of these forms, though in many States a mere scroll or similar device, and in some a mere flourish or dash, if intended as a seal, is deemed sufficient {Hacker s Appeal, 121 Pa. 192 ; Lorah v. Nissley, 156 Pa. 329 ; Osbom v. Kistler, 35 O. St. 99 ; Deininger v. McConnell, 41 111. 227 ; cf. Jack- sonville, etc. R. Co. v. Hooper, 160 U. S. 514). If, therefore, an instru- ment has no seal upon it, in the form recognized as valid in the par- ticular State, the fact that it purports to be sealed, and is attested as such, is not sufficient to make it a deed {Chilton v. People, 66 111. 501 ; State v. Humbird, 54 Md. 327 ; State v. Thompson, 49 Mo. 188 ; Taylor v. Glaser, 2 S. & R. 502 ; Boothbay v. Giles, 68 Me. 160 ; Cadell v. Allen, 99 N. C. 542 ; cf. Rensens v. Staples, 52 F. R. 91). But where a deed is proved by the public records, and no seal has been recorded, the fact that the instrument purports to have been sealed and is so attested will raise the presumption of a seal upon the original {Flow- ery Co. v. Bonanza Co., 16 Nev. 302 ; Starkweather v. Martin, 28 Mich. 471 ; McCoy v. Cassidy, 96 Mo. 429; Le Franc v. Richmond, 5 Sawy. 601 ; cf. Todd v. Union Dime Inst., 118 N. Y. 337 ; Rensens v. Lawson, 91 Va. 226 ; Heath v. Cotton Mills, 115 N. C. 202 ; Beardsley v. Day, 52 Minn. 451 ; contra, Switzer v. Knapps, 10 la. 72 ; Williams v. Bass, 22 Vt. 352). If a seal is omitted by mistake, equity will cause the omission to be supplied or will assume that the instrument is sealed {Harding M.Jewell, 73 Me. 426 ; Probate Ct. v. May, 52 Vt. 182 ; Bar- nard v. Gantz, 140 N. Y. 249 ; Henklonan v. Peterson, 154 111. 419). If an instrument, when given in evidence, bears a seal, this is pre- 212 A DIGEST OF [Part II. Article 88. presumption as to documents thirty years old. Where any document purporting or proved to be thirty years old is produced from any custody which the judge in the particular case considers proper, it is presumed that the signature and every other part of such document which purports to be in the handwriting of any particular sumed to be the seal of the party signing {Mill Dam Fonndery v. Hovey, 21 Pick. 417, 428; Trustees of Canandarqua Academy v. Mc- Kechnie, go X. Y. 618); and upon proof of the signature, it maybe presumed that the instrument was regularly sealed and delivered, especially if there be a recital stating the fact of sealing ; such recital is, however, by the weight of authority, held unnecessary, though it may be material to show that a particular device was intended as a seal {Merritt v. Cornell, 1 E. D. Sm. 335 ; Miller v. Binder, 28 Pa. 489 ; Bradford v. Randall, 5 Pick. 496 ; Trasher v. Everhart, 3 G. & J. 234 ; Force v. Craig, 7 N. J. L. 272 ; Anthony v. Harriso7i, 14 Hun, 200, 74 N. Y. 613 ; cf. Corlies v. Van Note, 16 N. J. L., 324 ; but see Cleggv. Lemessurier,\^ Gratt. 108). But the presumption is rebuttable (Koehlerv. Black River Co., 2 Black, 715). Still the fact that an in- strument bears a seal and also purports to be sealed is evidence for the jury that it was sealed when signed, though the obligor denies this (Brolley v. Lap ham, 13 Gray, 294 ; State v. Peek, 53 Me. 284, 286); and the obligor may even be estopped to deny the seal, if the obligee has acted in good faith upon the instrument as being duly sealed (Metro- politan Ins. Co. v. Bender, 124 X. Y. 47 ; but see Burnet v. Abbott, 53 Vt. 120). In a number of the States, by statute, the use of seals by private persons is now unnecessary, as e.g., Ohio, Indiana, Iowa, Kansas, Ne- braska, Tennessee, etc. When a deed with the regular evidence of its execution upon its face is found in the hands of the grantee, it is presumed to have been duly delivered (Butrick v. Tilton, 141 Mass. 93; Strough v. Wilder, 119 N. Y. 530 ; Harshbarger v. Carroll, 163 111. 636); so if it is upon record duly acknowledged and attested (Munoz v. Wilson, m X. Y. 295; Johnson v. Seidel, 150 Pa. 397; Stevens v. Castel, 63 Mich, in, collect- ing also the cases which hold differently). But these presumptions are also rebuttable. Id.; Black v. Sharkey, 104 Cal. 279 ; Townsend v. Rackham, 143 X. Y. 516; see Washb.R. P. iii. 312 (5th ed).] Chap. XL] THE LAW OF EVIDENCE. 213 person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested, by the persons by whom it purports to be executed and attested ; ' and the attestation or execution need not be proved, even if the attesting witness is alive and in court. 2 Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be ; but no custody is improper if it is proved to have had a legitimate origin, 1 2 Ph. Ev. 245-8 ; Starkie, 521-6 ; T. E. s. 74 and ss. 593-601 ; Best, s. 220. [Wh. Ev. i. §§ 194-199, 703, 732 ; Gr. Ev. i. §§ 21, 142-144, 570; Applegate v. Lexington, etc. Mining Co., 117 U. S. 255 ; Dodge v. Gal- latin, 130 N. Y. 1 18 ; Bell v. Brewster, 44 O. St. 690 ; Fowler v. Scott, 64 Wis. 509; Geer v. Lumber Co., 134 Mo. 85 ; Scharff 'v. Keener, 64 Pa. 376; Goodwin v. Jack, 62 Me. 414. The age of a will under this rule is reckoned from the testator's death (Staring v. Bowen, 6 Barb. 109). If material and suspicious alterations appear upon the instru- ment, they should be explained by the party offering it in evidence (Rodriguez v. Hay ties, 76 Tex. 225 ; Wisdom v. Reeves, no Ala. 418; Herrick v. Malin, 22 Wend. 388). It has been a mooted question, whether, if the document were a conveyance of land, it would be necessary to prove, besides its age and its production from the proper custody, that there had been possession of the land under it and in accordance with its terms. The better opinion is that evidence of possession is not strictly necessary, but other corroborative evidence may be received to establish the genuineness of the instrument (Ha- vens v. Sea Shore Co., 47 N. J. Eq. 365 ; Nowlin v. Burwell, 75 Va. 551; Applegate v. Lexington, etc. Mining Co., supra; Long v. Mc- Dow, 87 Mo. 197 ; Whitman v. Heneberry, 73 111. 109; Walker v. Walker, 67 Pa. 185; Boston v. Richardson, 105 Mass. 351; Clark v. Owens, iS N. Y. 434 ; Enders v. Sternbergh, 2 Abb. Dec. 31 ; see Gr. Ev. i. § 144, n.). But evidence of possession is the best means of cor- roboration, and should be produced when practicable (Willson v. Belts, 4 Den. 201). Unless there be some satisfactory corroboration, the execution of the document must be proved ; its age alone is not enough to authenticate it. Jackson v. Luquere, 5 Cow. 221 ; Martin v. Rector, 24 Hun, 27.] 2 [Jackson v. Christman, 4 Wend. 277; Mc Reynolds v. Longenberger, '57 Pa. 13.] 214 A DIGEST OF [Part II. or if the circumstances of the particular case are such as to render such an origin probable. 1 Article 89. PRESUMPTION AS TO ALTERATIONS. 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. 3 1 [ Whitman v. Shaw, 166 Mass. 451, 460; Nowlin v. Burwell, 75 Va. 551; Beard v. Ryan, 78 Ala. 37 ; and see other cases in notes 1 and 2, supra, on p. 213.] '- [Gr. Ev. i. § 565 ; Angle v. Life Ins. Co., 92 U. S. 330 ; Drum v. Drum, 133 Mass. 566 ; Hunt v. Gray, 35 N. J. L. 227 ; Russell v. Reed, 36 Minn. 376. A material alteration made by a party intentionally after execution avoids the instrument, though it be innocently made {Booth v. Powers, 56 N. Y. 22 ; Eckert v. Pickel, 59 la. 545 ; Craig- head v. McLoney, 99 Pa. 211) ; but then, in the case of a contract, a recovery may be had on the original consideration (Id.; Miller v. Stark, 148 Pa. 164), though the rule is otherwise, if the alteration be fraudulent {Meyer v. Huneke, 55 N. Y. 412; Warder v. Willy ard, 46 Minn. 531). Some authorities, however, hold that a material alter- ation, if made innocently or to correct a mistake, does not vitiate the instrument {Poole v. Hambrick, 70 Miss. 157 ; Croswell v. Labree, 81 Me. 44). A negotiable instrument, materially altered by a party, is void even in the hands of an innocent purchaser for value (Benedict v. Cowden, 49 X. V. 396; Charlton v. Reed, 61 la. 166; Gettysburg Nat. Bk. v. Chisolm, 169 Pa. 564 ; Newman v. King, 54 O. St. 273 ; Angle v. Life Ins. Co., supra). Alterations in a deed of land, how- ever, will not divest the title conveyed by it, though they will, if material, avoid the covenants (Gr. Ev. i. § 265 ; Herrick v. Malin, 22 Wend. 388 ; Woods v. Hilderbrand, 46 Mo. 284 ; Wallace v. Harm- stad, 15 Pa. 462 ; cf. Potter v. Adams, 125 Mo. 1 18). Alterations before execution should be noted in the attestation clause (Gr. Ev. i. § 564). Alterations by consent of parties do not avoid the instrument {Benny v. Corwithe, 18 Johns. 499 ; Taddiken v. Chap. XL] THE LAW OF EVIDENCE. 215 This 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. 1 Alterations and interlineations appearing on the face )f a deed are, in the absence of all evidence relating to them, presumed to have been made before the deed was completed. 2 Cantrell, 69 N. Y. 597), though they may have that effect as to sureties, if made without their consent. Paine v. Jones, 76 N. Y. 274 ; Eckert v. Louis, 84 Ind, 99 ; Thompson v. Massif, 41 O. St. 307.] 1 Pigot's Case, 1 1 Rep. 47 ; Davidson v. Cooper, 1 1 M. & W. 778 ; 13 M. & W. 343 ; Aldous v. Cornwell, L. R. 3 Q. B. 573. This qualities one of the resolutions in Pigot's Case. The judgment reviews a great number of authorities on the subject. [It is the general rule in this country, however, that unauthorized alterations by a stranger, even though material, do not affect the validity of the document {Drum v. Drum, 133 Mass. 566; Hunt v. Gray, 35 N. J. L. 227; Bigelow v. Stilphens, 35 Vt. 521 ; Waring v. Smyth, 2 Barb. Ch. 119; Mix v. Royal Ins. Co., 169 Pa. 639 ; Sewing Machine Co. v. Dakin, 86 Mich. 581 ; Ames v. Brown, 22 Minn. 257 ; Orlando v. Gooding, 34 Fla. 244 ; cf. Gleason v. Hamilton, 138 N. Y. 353), and the fact that the docu- ment is in the party's custody at the time seems to make no difference (Id.; see Nickerson v. Swett, 135 Mass. 514 ; Kingan v. Silvers Co., 13 Ind. App. 80). The stranger's act is called a "spoliation," rather than an alteration. Gr. Ev. i. § 566 ; John v. Hatfield, 84 Ind. 75 ; State v. McGonigle, 10 1 Mo. 353.] 2 Doe v. Catomore, 16 Q. B. 745. [The American rule differs from the English in many States, though there is much diversity of doctrine in the different States. It is generally agreed, however, that if a material alteration appear upon the face of a document, and be suspicious in its character and beneficial to the party claiming the enforcement of a right under the document, the burden of proof is upon such party to show that the alteration was made before or at the time of execution, or is for other reasons proper or excusable ; and if evidence be adduced to explain any material alteration, it is submitted to the jury, who are to determine as a question of fact, when, by whom, and for what reason the alteration was made {Nat. Ulster Co. Bk. v. Madden, 1 14 N. Y. 280 (note); Smith v. McGowan, 3 Barb. 404 (deed) ; Smith v. U. S., 2 Wall. 219, 232 (bond); Citizens' Nat, Bk. v. Williams, 174 Pa. 66 (note) ; Robinson v. Myers, 67 Pa. 9 216 A DIGEST OF [Part II. Alterations and interlineations appearing on the face of a will are, in the absence of all evidence relating to (deed) ; Wilson v. Hotchkiss' Estate, 81 Mich. 172 (note) ; Comstock v. Smith, 26 Mich. 306 (covenant in deed) ; Ely v. Ely, 6 Gray, 439 (mortgage); Drum v. Drum, 133 Mass. 566 (note); Dodge v. Haskell, 69 Me. 429 (note); Hodnett v. Pace, 84 Va. 873 (note); Hill v. Nelms, 86 Ala. 442 (mortgage); Stillwell v. Patton, 108 Mo. 352 (note); Sisson v. Pearson, 44 111. App. 81 (deed)). But if the alteration be not sus- picious, such explanatory evidence is not required (Id.; Zimmerman v. Camp, 155 Pa. 152 ; Brand v. Jo/inroive, 60 Mich. 210; Paramore v. Lindsey, 63 Mo. 63) ; and the same is true if the alteration be not apparent; if in such a case the opposing party alleges a wrongful alteration, the burden of proving it is on him {Williamsburgh Bk. v. Solon, 136 N. Y. 465 ; Insurance Co. v. Brim, in Ind. 281). In some States maintaining the above rule, it is held that if the party who is bound to explain a suspicious material alteration offers no evidence for the purpose, the document may be rejected by the court as inadmissible in evidence {Burgwin v. Bishop, 91 Pa. 336 (lease); Hartley v. Corboy, 150 Pa. 23 (note): Collins v. Ball, 82 Tex. 259 (deed); Tillou v. Clinton, etc. Ins. Co., 7 Barb. 564 (written consent); but see Maybee v. Sniffen, 2 E. D. Sm. 1 (release) ; this is the Eng- lish rule of Knight v. Clements, 8 A. & E. 215). In other States the document, upon proof of execution, is submitted to the jury in all cases of alteration, with or without explanatory evidence Aliunde, so that they may determine from its inspection, etc., when, and for what purpose, the alteration was made (Hoey v.Jarman, 39 N. J. L. 523, 40 id. 379 (specialty); Cole v. Hills, 44 N. H. 227 (note); Stayner v. Joyce, 120 Ind. 99 (note); Goodin v. Plugge, 47 Neb. 284 (note); Dodge v. Haskell, supra) ; but the jury must be satisfied by a pre- ponderance of evidence that any material alteration was rightfully made, and in the absence of evidence to show this, a verdict against the validity of the instrument will be sustainable, or may be directed (Id.; Putnam v. Clark, 33 N. J. Eq. 338, 343). Under both these theories, it is sometimes said that there is a presumption of fact that a material alteration, not sufficiently explained, was made after execution. It is denied, however, that there is any presumption of law as to the time of alteration, in such a case, though such a doctrine has been often asserted {Ely v. Ely, Comstock v. Smith, supra ; Closson v. Morrison, 47 N. H. 482, 487 ; Jordan v. Stewart, 23 Pa. 244, 249). In a number of the States the foregoing rules do not prevail, but the presumption is that an unexplained alteration of an instrument Chap. XI. | THE LAW OF EVIDENCE. 217 them, presumed to have been made after the execution of the will. 1 There is no presumption as to the time when alterations and interlineations, appearing on the face of writings not under seal, were made, 2 except that it is presumed that they were so made that the making would not constitute an offence. 3 An alteration is said to be material when, if it had been was made before or at the time of execution {Neil v. Case, 25 Kan. 510 (note); Beaman v. Russell, 20 Vt. 205 (note); Franklin v. Baker, 48 O. St. 296 (note); Wilson v. Hayes, 40 Minn. 531 (note); Little v. Herndon, 10 Wall. 26 (asserting this as to deeds, following the English rule); cf. Hayden v. Goodnow, 39 Ct. 164). Under this doctrine the instrument is admissible in evidence, though no explanatory evidence is offered ; if, however, such evidence is introduced, the question as to the time and purpose of the alteration is for the jury (Id.). There are other theories, also, on this vexed subject. Thus by some authorities there is a presumption of law that suspicious alterations were made after execution, but other alterations before {Cox v. Palmer, 1 McCrary, 431 (mortgage); Orlando v. Gooding, 34 Fla. 244), while others assert that an apparent alteration raises no pre- sumption either way {Hagan v. Merchants' etc. his. Co., 81 la. 321 (insurance policy); see Wilson v. Hayes, supra). In general, each State, as the cases hitherto cited indicate, applies one and the same rule to deeds, bills and notes, written contracts of any kind, and other like documents. As to wills, see next note.] 1 Simmons v. Rudall, 1 Sim. (N. S.) 136. [Wetmore v. Carryl, 5 Redf. 544 ; Toebbe v. Williams, 80 Ky. 661 ; contra, Wikoff's Case, 15 Pa. 281 ; see In re Voorhees, 6 Dem. 162 ; Linuard's Appeal, 93 Pa. 313 ; Haynes v. Haynes, 33 O. St. 598. When alterations are made after execution, it is generally held that the will must be reexecuted ; if not, the will stands as it read before such alteration {Gardner v. Gardiner, 65 N. H. 230; Simrell's Estate, 154 Pa. 604; Lovellv. Quitman, 88 N. Y. 377 ; Eschbach v. Collins, 61 Md. 478 ; Giffin v. Brooks, 48 O. St. 211 ; Hesterberg v. Clark, 166 111. 241), except in cases where the alteration is by cancellation or obliteration, revoking the will in whole or in part. Townshcnd v. Howard, 86 Me. 285 ; Bigelow v. Gillott, 123 Mass. 102.J 2 Knight v. Clements, 8 A. & E. 215 ; [see p. 215, note 2, supra.] 3 A\ v. Gordon, Dears. 592; [see for dan v. Stewart, 23 Pa. 244.] 218 A DIGEST OF [Part II. made with the consent of the party charged, it would have affected his interest or varied his obligations in any way whatever. 1 An alteration which in no way affects the rights of the parties or the legal effect of the instrument, is immaterial. 2 1 [Craighead v. McLoney, 99 Pa. 21 1 ; Booth v. Powers, 56 N. Y. 22 ; Murray v. Klinzing, 64 Ct. 78 ; Wood v. Steele, 6 Wall. 80. Whether an alteration is material or not, is a question for the court. Id.; Bel- fast Bk. v. Harriman, 68 Me. 522 ; Keens Excr. v. Mofiroe, 75 Va. 424-] 8 This appears to be the result of many cases referred to in T. E. ss. 1619-20 ; see also the judgments in Davidson v. Cooper and Aldous y. Comwell, referred to above. [Immaterial alterations by a party or stranger do not avoid an instrument {Casoni v. Jerome, 58 N. Y. 315 ; Robertson v. Hay, 91 Pa. 242 ; Cushing v. Field, 70 Me. 50 ; Prudden v. Nester, 103 Mich. 540 ; Ryan v. First Nat. Bk., 148 111. 349 ; Mers- man v. Werges, 1 12 U. S. 139 ; Vose v. Dolan, 108 Mass. 155 ; Derby v. Thrall, 44 Vt. 413), even though they are made by a party with fraudulent intent {Fuller v. Green, 64 Wis. 159 ; JMoye v. Herndon, 30 Miss. 116; Robinson v.Phamix Ins. Co., 25 la. 43°); but in some States immaterial alterations by a party do avoid an instrument {Jones v. Crowley, 57 N. J. L. 222 ; Kingston Bk. v. Bosserman, 52 Mo. App. 269 ; see Gr. Ev. i. § 568 ; cf. Co/um. v. Emigrant Sav. Bk., 98 Mass. 12). If blank spaces are left in a negotiable bill or note so that it is incomplete, any bonajide holder may fill them up, and the instrument will be valid in the hands of an innocent purchaser for value ( Weyer- hauser v. Pun, 100 N. Y. 150 ; Bank v. Sargent, 85 Me. 349 ; Brown v. First Nat. Bk., 115 Ind. 572 ; Angle v. Life Ins. Co., 92 U. S. 330 ; Garrard v. Lewis, 10 Q. B. D. 30). But unwritten spaces in a complete note or bill cannot be so filled {McGrath v. Clark, 56 N. Y. 34 ; Bruce v. Westcott, 3 Barb. 374 ; De Pauw v. Bank, 126 Ind. 553 ^ Knoxville Nat. Bk.v. Clark, 51 la. 264; Simmons v. Atkinson, 69 Miss. 862; Burrows v. Klunk, 70 Md. 451 ; Greenfield Sav. Bk. v. Stowcll, 123 Mass. 196). But there are cases to the contrary, which are collected in this last decision. As to filling blanks in deeds or bonds, see Washb. R. P. iii. 252-256 (5th ed.); Bell v. Kennedy, 100 Pa. 215; Chicago v. Gage, 95 111. 593 ; State v. Mathews, 44 Kan. 596 ; Allen v. Withrow, 1 10 U. S. 1 19 ; Brim v. Fleming, 135 Mo. 597 ; Lafferty v e Lajfcrty, \i W Va. 783.] Chap. XII.] THE LAW OF EVIDENCE. 21a CHAPTER XII. OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE, AND OF THE MODIFICATION AND INTERPRETATION OF DOCUMENTARY BY ORAL EVIDENCE. Article - 90.* EVIDENCE OF TERMS OF CONTRACTS, GRANTS, AND OTHER DIS- POSITIONS OF PROPERTY REDUCED TO A DOCUMENTARY FORM. When any judgment of any court or any other judicial or official proceeding, or any contract or grant, or any other disposition of property, has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding, or of the terms of such contract, grant, or other disposition of property, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admis- sible under the provisions hereinbefore contained. 1 Nor may the contents of any such document be contradicted, altered, added to, or varied by oral evidence. 2 *See Note XXXII. [Appendix]. 1 Illustrations (a) and (b). See ante, Arts. 63-84. [Contemporaneous writings between the same parties, relating to the same subject-mat- ter, are admissible in evidence (Gr. Ev. i. § 283 ; Wilson v. Randall, 6rj N. Y. 338; McNamara v. Gargett, 68 Mich. 454 ; Windmill Co. v. Piercy, 41 Kan. 763); but neither of them can be varied by parol evi- dence (Myers v. Munson, 65 la. 423). So writings referred to in an- other instrument are admissible with such instrument. Maxted v. Seymour, 56 Mich. 129 ; Amos v. Amos, 1 17 Ind. 19.] ' 2 [Gr. Ev. i. §§ 275-282 ; Wh. Ev. li. §§ 920-927. This rule of the English courts is well established in this country. It excludes (sub- ject to the modifying rules hereinafter stated) evidence of prior, con- temporaneous, or subsequent oral declarations or stipulations of the 220 A DIGEST OF [Part II. Provided that any of the following matters may be proved : — (i) Fraud, intimidation, illegality, want of due execu- tion, want of capacity in any contracting party, the fact that it is wrongly dated, 1 want or failure of consideration, or mistake in fact or law, or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto. 2 parties {Mottv. Richtmyer, 57 N. Y. 49; Seitz v. Brewers Co., 141 U. S. 510; Wodock v. Robinson, 148 Pa. 503 ; Johnson v. Glover, 121 111. 283 ; Caulfield v. Hermann, 64 Ct. 325 ; Tuttle v. Burgett, 53 O. St. 498 ; Boyd v. Paul, 125 Mo. 9; Black v. Bachelder, 120 Mass. 171; Naumbergv. Young, 44 N. J. L. 331). But in Pennsylvania it is ap- plied with less stringency than in other States [G reenawalt v. Kohne, 85 Pa. 369). The rule as to wills is the same as in respect to other instruments. Parol evidence is not received of the testator's oral declarations of intention, except in the special cases stated in the next Article ( Williams v. Freeman, 83 N. Y. 561; Warren v. Gregg, 116 Mass. 304 ; Mackie v. Story, 93 U. S. 589 ; Hoiltv. Hoitt, 63 N. H. 475; Hawke v. Chicago, etc. R. Co., 165 111. 561). The general rule for all instruments is simply this: — Ascertain the inte?itio>i of the party or parties from the instrument itself, not from parol evidence independent of the instrument ( Waters v. Bishop, 122 Ind. 516 ; Eyer v. Beck, 70 Mich. 179). But, as is shown by this Article and the next, parol evidence of various kinds is admissible to enable one to find the intent in the instrument. House v. Walch, 144 N. Y. 418.] 1 Reffellv. Rcffell, L. R. I P. & D. 139. [Kincaid v. Archibald, 73 N. Y. 189; Battles v. Fobes, 21 Pick. 239; Pigott v. O'Halloran, 37 Minn. 415. But when the parties to a contract have made the date a material part thereof, as when the time of performance is fixed with reference to it, parol evidence is not admissible to change it. Bar- low v. Buckingham, 68 la. 169; Joseph v. Bigelow, 4 Cush. 82.] Mr. Starkie extends this to mistakes in some other formal particulars. 3 Stark. Ev. 787-8. 2 Illustration (c). [Gr. Ev. i. §§ 284, 285 ; Wh. Ev. ii. §§ 930-935, 1009, 1054; Trambly v. Ricard, 130 Mass. 259 (fraud); Mayer v. Dean, 115 N. Y. 556 (fraud); Paine v. Upton, 87 N. Y. 327 (fraud, accident, and mistake); Haughwout v. Garrison, 69 N. Y. 339 Chap. XII.] THE LAW OF EVIDENCE. 221 (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend (usury) ; Sherman v. Wilder, 106 Mass. 537 (illegality) ; Anthony v. Harrison, 14 Hun, 198, 74 N. Y. 613 ; Baird v. Baird, 145 N. Y. 659; Fire Ins. Ass'n v. Wickham, 141 U. S. 564 (want of consideration). So parol evidence is admissible to show the real consideration of a contract or deed, though different from that expressed, or an ad- ditional consideration, not inconsistent with that expressed {Hebbard v. Hanghian, 70 N. Y. 54 ; Burnham v. Dorr, 72 Me. 198 ; Snow v. Alley, 156 Mass. 193 ; Silvers v. Potter, 48 N. J. Eq. 539 ; Koch v. Roth, 150 111. 212; cf. Emmett v. Penoyer, 151 N. Y. 564; but see Simanovich v. Wood, 145 Mass. 180; Conant v. Nat. State Bk., 121 Ind. 323 ; Davis v. Gann, 63 Mo. App. 425); to show a deed to be a mortgage {Hassam v. Barrett, 115 Mass. 256 ; Barry v. Hamburg Ins. Co., no N. Y. 1; German Ins. Co. v. Gibe, 162 111. 251; McMillan v. Bissell, 63 Mich. 66 ; Pengh v. Davis, 96 U. S. 332 ; this is only true in equity in most States); to show a bill of sale of goods to be a chattel mortgage {Marsh v. McNair, 99 N. Y. 174, 178 ; Susman v. Whyard, 149 N. Y. 127; Morgan's Assignees v. Shinn, 15 Wall. 105 ; Booth v. Robinson, 55 Md. 419 ; this also, in most States, is in equity, but not at law, Philbrook v. Eaton, 134 Mass. 398); to establish a trust in per- sonal property, or a constructive or resulting trust in land, though a deed or other writing has purported to carry an absolute title ( Minchin v. Minchin, 157 Mass. 265; Ducie v. Ford, 138 U. S. 587; Parker v. Snyder, 31 N.J. Eq. 164; cf. Zimmerman v. Barber, 176 Pa. 1); to show that a deed was intended as an advancement {Palmer v. Cul- bertson, 143 N. Y. 213); to show that the signer of an unsealed non- negotiable instrument signed as agent, not as principal [Brady v. iVally, 151 N. Y. 258, 262 ; Barbie v. Goodale, 28 Or. 465 ; Lerned v. Johns, 9 Allen, 419; contra in N. J., Schenck v. Spring Lake Co., 47 N. J. Eq. 44 ; as to sealed instruments, see Henricus v. Englert, 137 N. Y. 488); to show the true relations of the parties signing an instrument as be- tween themselves, as that they are co-sureties though they signed as makers, and vice versa, etc. {Mansfield v. Edwards, 136 Mass. 15; Paul v. Rider, 58 N. H. 1 19; Hubbard v. Gurncy, 64 N. Y. 457 ; Kiel v. Choate, 92 Wis. 517 ; Farwell v. Ensign, 66 Mich. 600); to show that a writing purporting to be a contract was not intended as such {Griersou v. Mason, 60 N. Y. 394; cf. Michelsv.Olmstead, 157 U. S. 198); to show which of two contemporaneous writings expresses the real intention 222 A DIGEST OF [Part II. the document to be a complete and final statement of the whole of the transaction between them. 1 (3) The existence of any separate oral agreement, con- stituting- a condition precedent to the attaching of any obligation under any such contract, grant, or disposition of property.'-' of the parties (Payson v. Lamson, 134 Mass. 593). So a receipt may be contradicted or explained by parol, except in so far as it constitutes or contains a contract, as, e. g., in the case of a bill of lading (Macdon- ald v. Dana, 154 Mass. 152 ; Ryan v. Ward, 48 N. Y. 204 ; Goodwin v. Goodwin, 59 N. H. 548 ; Chapin v. Chicago, etc. R. Co., 79 la. 582 ; Swain v. Frazier, 35 N. J. Eq. 326); so as to a written license or ad- mission (Fargis v. Walton, 107 N. Y. 398; Smith v. May field, 163 111. 447); and there are many other like cases.] 1 Illustrations (d), (e), and (ee). [Gr. Ev. i. § 284 a ; Thomas v. Scutt, 127 N. Y. 133; Graffam v. Pierce, 143 Mass. 386; Stahelin v. Lowle, 87 Mich. 124 ; Hand v. Ryan Co., 63 Minn. 539; Rlattv. A£tna Ins. Co., 153 111. 113, 121 ; Greening v. Steele, 122 Mo. 287 ; Sivers v. Sivers, 97 Cal. 518 ; Naumberg v. Young, 44 N. J. L. 331. Thus, e. g., an in- dependent collateral agreement may be shown by parol ( Van Brunt v. Day, 81 N. Y. 251; Backus v. Sternberg, 59 Minn. 403; Xeal v. Flint, 88 Me. 73 ; Ayer v. Bell Mfg. Co., 147 Mass. 46). But the rule in the text does not apply when it appears from inspection of the in- strument that it was intended to express the full and complete inten- tions of the parties {Eighmie v. Taylor, 98 N. Y. 288 ; Seitz v. Brew- ers' Co., 141 U. S. 510; Dickson v. Hartman Mfg. Co., 179 Pa. 343; Averill v. Sawyer, 62 Ct. 560); nor does it apply to contracts which are required by the Statute of Frauds to be in writing. Ringer v. Holtz- claw, 112 Mo. 519.] s Illustrations (/) and (g). [ Wilson v. Powers, 131 Mass. 539; Mc- Farland x. Sikes, 54 Ct. 250; Reynolds v. Robinson, no N. Y. 654; Higgins v. Ridgway, 153 N. Y. 130; Burke v. Delaney, 153 U. S. 228 ; Smith v. Mussetter, 58 Minn. 159; cf. McCormick Co. v. Wilson, 39 Minn. 467. Generally, however, in this country a condition attached to the delivery of an instrument under seal, or at least of a convey- ance of land, to the obligee or grantee, whereby it is to take effect only upon the happening of a contingent event, cannot be shown by parol {Newman v. Baker, 10 App. D. C. 187; Blewitt v. Booriun, 142 N- Y. 357) ; but in other respects specialties and deeds are subject to this rule, as well as instruments not under seal ( Wendlinger v , Smith, 75 Ya. 309 ; Brackett v. Barney, 2S N. Y. 333 ; Slate v. U'allis, Chap. XII.] THE LAW OF EVIDENCE. 223 (4) The existence of any distinct subsequent oral agree- ment to rescind or modify any such contract, grant, or disposition of property, provided that such agreement is not invalid under the Statute of Frauds, or otherwise. 1 (5) Any usage or custom by which incidents not ex- pressly mentioned in any contract are annexed to con- tracts of that description ; unless the annexing of such 57 Ark. 73 ; Keener v. Crago, 81 * Pa. 166 ; Harrisoii v. Morton, 83 Md. 456). It has been held, however, not applicable to wills (Sewell v. Slingluff, 57 Md. 537). But conditions other than such "conditions precedent" as the text describes cannot be engrafted upon a writing by parol evidence ( Wilson v. Decn, 74 N. Y. 531 ; Allen v. Furbish, 4 Gray, 504 ; Holz- worth v. Koch, 26 0. St. 33) ; in Pennsylvania, however, a less stringent rule prevails, and parol evidence is received of oral promises or con- ditions on the faith of whi.ch a written contract has been executed. Cull mans v. Lindsay, 114 Pa. 170.] 1 Illustration (h). [Gr. Ev. i.§§ 302-304; Teal v. Bilby, 123 U. S. 578 ; Hastings v. Lovcjoy, 140 Mass. 261; West Haven Co. v. Redfield, 58 Ct. 39 ; Nicollv. Burke, 78 N. Y. 580 ; Church v. Florence Iron Works, 45 N. J. L. 129; Holloway v. Frick, 149 Pa. 178. Generally the sub- sequent agreement requires a new consideration (Malone v. Dough- erty, 79 Pa. 46 ; Stewart v. Keteltas, 36 N. Y. 388, 392 ; Barton v. Gray, 57 Mich. 622 ; Carruthers v. Mc Murray, 75 la. 173), but the original consideration may be deemed sufficient {Lynch v. Mc Henry, 75 Wis. 631; cf. Anderson v. Moore, 145 111. 61). So in case of a parol waiver or a parol extension of time for performance, no consideration is gen- erally required {Stevens v. Taylor, 58 la. 664; Mead v. Barker, in N. Y. 259 ; Thomson v. Boor, 147 N. Y. 402 ; Cobbs v. Fire Ass'n, 68 Mich. 463). As to the modification by parol of a contract under seal, see Canal Co. v. Ray, 101 U. S. 522 ; Quigley v. De Haas, 98 Pa. 292 ; McCreery v. Day, 1 19 N. Y. 1 ; Hcrzog v. Sawyer, 61 Md. 344 ; Blag- borne v. Hunger, 101 Mich. 375 ; Alschulerv. Schiff, 164 111. 298. The authorities are conflicting as to whether a contract within the Statute of Frauds can be varied by a subsequent parol agreement. Cummings v. Arnold, 3 Met. 486 ; Negley v. Jcffers, 28 O. St. 90 ; Hill v. Blake, 97 N. Y. 216 ; Thomson v. Pcor, 147 N. Y. 402, 408 ; Swain v. Seamens, 9 Wall. 254, 272; Backer v. Steward, 34 Yt. 127, 130; Williams v. Flood, 63 Mich. 487 ; Burns v. Fidelity Co., 52 Minn. 31 ; see Long v. Hartwell, 34 N. J. L. 116; Reed on St. of Frauds, ii. §473-] 224 A DIGEST OF [Part II. incident to snch contract would be repugnant to or incon- sistent with the express terms of the contract.' Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, or other disposition of property. 2 Oral evidence of the existence of a legal relation is not excluded by the fact that it has been created by a docu- ment, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on. 3 1 Illustration (ha) ; Wigglesworth v. Dallison, and note thereto, S. L. C. 598-628. A late case is Johnson v. Raylton, 7 Q. B. D. 438, in which it was held that evidence was admissible of a custom that in a contract with a manufacturer for iron plates he warranted them to be of his own make. [Gr. Ev. i. §§ 294, 295 ; Walls v. Bailey, 49 N. Y. 464; Page v. Cole, 120 Mass. 37; Robinson v. U. S., 13 Wall. 363; Patlerson v. Croivther, 70 Md. 124; Pennell v. Transportation Co., 94 Mich. 247. But evidence of usage will not be received to defeat a settled rule of law or the plain meaning of a statute. Barnard v. Kellogg, 10 Wall. 383 ; Corn Exch. Bk. v. Nassau Bk., 91 N. Y. 74; Suburban Elec. Co. v. Elizabeth, 59 N. J. L. 134; cf. Armstrong v. Granite Co., 147 N. Y. 495.] 2 Illustration (i). [firigg v. Hilton, 99 N. Y. 517 ; Lathrop v. B ram- hall, 64 N. Y. 365 ; Perrine v. Cooler's Excrs., 39 N. J. L. 449 ; Irwin v. Thompson, 27 Kan. 643 ; Grant v. Frost, 80 Me. 202 ; Kreuzberger v. Wingfield, 96 Cal. 251 ; see ante, p. 190, note 1.] :; Illustration (J). [Thus the existence of a partnership or corporation may be proved by parol ( Widdifieldv. Widdificld, 2 Binn.245; Cutler v. Thomas, 25 Yt. 73 ; Stale v. Grant, 104 N. C. 908 ; see p. 190, note I, ante); or the fact of a tenancy in land ( / /amnion v. Sexton, 691a. 37); or the ownership of property ( Gallagher v. London Assur. Co., 149 Pa. 25 ; cf. Uhlv. Moorhous, 137 Ind. 445). So various collateral facts about an instrument may be proved by parol ; as e. g., the purpose or object for which it was given (IlutcJiins v. I/cbbarci, 34 N. Y. 24 ; Bunker v. Barron, 79 Me. 62; Bruce v. Slemp, 82 Va. 352); the reason why it was not indorsed {Bank v. Kennedy, 17 Wall 19); the fact that notes were sent to a banking-house for collection {Cecil Bk.v. Snively,2^ Md. 253); and many like cases. Sec Brick v. /hick, 98 U. S. 514; Buchanon v. Adams, 49 N. J. L. 636; Shocnbcrgcr v. Ilackman, 37 Pa. 87.] Chap. XII.] THE LAW OF EVIDENCE. 225 The fact that a person holds a public office need not be proved by the production of his written or sealed appoint- ment thereto, if he is shown to have acted on it.' Illustrations. {a) A policy of insurance is effected on goods "in ships from Suri- nam to London." The goods are shipped in a particular ship, which is lost. The fact that that particular ship was orally excepted from the pol- icy cannot be proved.' 2 (b) An estate called Gotton Farm is conveyed by a deed which de- scribes it as consisting of the particulars described in the first division of a schedule and delineated in a plan on the margin of the schedule. Evidence cannot be given to show that a close not mentioned in the schedule or delineated in the plan was always treated as part of Got- ton Farm, and was intended to be conveyed by the deed. 3 (c) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would entitle him to have the contract reformed. 4 (d) A lets land to B, and they agree that a lease shall be given by A toB. Before the lease is given, B tells A that he will not sign it unless A promises to destroy the rabbits. A does promise. The lease is after- wards granted, and reserves sporting rights to A, but does not mention 1 See authorities collected in 1 Ph. Ev. 449-50; T. E. s. 139. [Gr. Ev. '• §§ 83, 92 ; Comm. v. Kane, 108 Mass. 423 ; Cotton v. Beardsley, 38 Barb. 29; State v. Row, 81 la. 138 ; Rite hie v. Widdemer, 59 N. J. L. 290 ; Lueierv. Pierce, 60 N. H. 13 ; Golder v. Bressler, 105 111. 419, 428 ; cf. Short v. Symmes, 150 Mass. 298.] ' 2 Weston v. Eames, 1 Tau. 115. 3 Barton v. Dawes, 10 C. B. 261-265. 4 Story's Equity Jurisprudence, chap. v. ss. 153-162. [Gr. Ev. i. § 296 a; Thompson v. Phenix Bis. Co., 136 U. S. 287 ; Goode v. Riley, 153 Mass. 585 ; Park Bros. v. Blodgett Co., 64 Ct. 28 ; Christopher St. R. Co. v. 23d St. R. Co., 149 N. Y. 58 ; N. &- W. Branch R. Co. v. Swank, 105 Pa. 555 ; but equity will not reform a will. Sherwood v. Sherwood, 45 Wis. 357 ; Stit?-gis v. Work, 122 Ind. 134J 226 A DIGEST OF [Part II. the destruction of the rabbits. B may prove A's verbal agreement as to the rabbits. 1 (e) A & B agree verbally that B shall take up an acceptance of A's, and that thereupon A and B shall make a written agreement for the sale of certain furniture by A to B. B does not take up the acceptance. A may prove the verbal agreement that he should do so. ? (ee) [A makes an oral assignment to B for a valid consideration of a portion of a debt due to A by a bank, and at the same time gives to B a check to enable him to draw the amount assigned. The check is not the contract between the parties and does not render parol evidence of the agreement inadmissible.] 3 (/) A & B enter into a written agreement for the sale of an interest in a patent, and at the same time agree verbally that the agreement shall not come into force unless C approves of it. C does not approve. The party interested may show this. 4 (g) A, a farmer, agrees in writing to transfer to B, another farmer, a farm which A holds of C. It is verbally agreed that the agreement is to be conditional on C's consent. B sues A for not transferring the farm. A may prove the condition as to C's consent and the fact that he does not consent. 5 (/i) A agrees in writing to sell B 14 lots of freehold land and make a good title to each of them. Afterwards B consents to take one lot though the title is bad. Apart from the Statute of Frauds this agree- ment might be proved. 6 1 Morgan v. Griffiths, L. R. 6 Ex. 70 ; and see Angell v. Duke, L. R. 10 Q. B. 174. [L'f. Willisw. Hulbert, 1 17 Mass. 151 ; Lewis v. Seabury, 74 N. Y. 400 ; J)o:fge v. Zimmer, 1 10 N. Y. 49 ; Bradstreet v. Rich, 72 Me. 233. Morgan v. Griffiths is disapproved in Naumberg v. Young, 44 N.J. L. 331.] 2 Lin ct 'ley v. Lacey, 17 C. B. (N. S.) 578; [see Enge/horn v. Reit- lingcr, \22 X. Y. 80.] '■'■[Risicy v. Phenix Bank, 83 N. Y. 318 ; cf. Ludeke v. Sutherland, 87 111. 481.] *Pym v. Campbell, 6 E. & B. 370. [See Ware v. Allen, 128 U. S. 590; Fauncev. Life Ins. Co., 101 Mass. 279 ; Seymour \. Cowing, 4 Abb. Dec. 200 ; Whitford v. Laidler, 94 N. Y. 145 ; Miller v. Gamble, 4 Barb. 146.] 5 Wallis v. Littell, 11 C. B. (X. S.) 369; [see Schmittler v. Simon, 114 X. Y. 184.] 6 Goss v. Lord 'Nugent, 5 15. & Ad. 58, 65 ; [see Wiggin v. Goodrich, 63 Me. 389.] Chap. XII.] THE LAW OF EVIDENCE. 227 (ha) [A written contract is made between A and B whereby the former is engaged as manager of the latter's theatre "at a weekly sal- ary of $40 per week." A claims payment at this rate for every week in the year. Evidence of a custom in the theatrical profession to pay wages only for the weeks in the theatrical season, and not for all the weeks of the year, is admissible.] ' (i) A sells B a horse, and orally warrants him quiet in harness. A also gives B a paper in these words : " Bought of A a horse for 7/. is. 6d." B may prove the oral warranty. 2 (f) The question is, whether A gained a settlement by occupying and paying rent for a tenement. The facts of occupation and pay- ment of rent may be proved by oral evidence, although the contract is in writing. 3 •r A DTtf Article 91.* what evidence may be given for the interpretation of documents. (1) Putting a construction upon a document means ascertaining the meaning of the signs or words made upon it, and their relation to facts. 4 * See Note XXXIII. [Appendix]. 1 [Leavitt v. Kennicott, 157 111. 235 ; Grant v. Maddox, 15 M. & W. T37-] 2 Allen v. Pink, 4 M. & W. 140. [Filkitis v. Why land, 24 N. Y. 338 ; Dunham v. Barnes, 9 Allen, 352.] 3 B.v. Hull, 7 B. & C. 611. 4 [Usually it is for the court and not for the jury to construe a docu- ment ; but where its language is ambiguous or equivocal or technical, or the special circumstances of the case affect its meaning, or the facts attending its execution need to be ascertained, etc., the question be- comes a mixed one of law and fact, and may as such be submitted to the jury (Kenyon v. Knights Templar Ass '», 122 N. Y. 247 ; Jordan v. Patterson, 67 Ct. 47 3; Shafer v ; Senseman, 125 Pa. 310; Tompkins v. Gardner Co., 69 Mich. 59; Hamilton x. Liverpool Ins. Co., 136 U.S. 242) ; so where a contract rests partly in writing and partly in parol, the jury determine what the contract is (Roberts v. Bonaparte, 73 Md. 191). If printed and written parts of a document conflict with each 228 A DIGEST OF [Part II. (2) In order to ascertain the meaning of the signs and words made upon a document, oral evidence maybe given of the meaning of illegible or not commonly intelligible characters, of foreign^obs olete, te chnical, local, and pro- ( vincial expressknigfof abbreviations, and of common . words which, from the context, appear to have been used in a peculiar sense;' but evidence may not be given to show that common words, the meaning of which is plain, and which do not appear from the context to have been used in a peculiar sense, were in fact so used. 2 (3) If the words of a document are so defective or ambiguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say. 3 other, the written parts prevail {Clark v. Woodruff, 83 N. Y. 518; Haws v. Insurance Co., 130 Pa. 113; Summers v. Hibbard, 153 111. 102). When a written contract is ambiguous, the practical construc- tion given to it by the parties may be considered, and is of much weight. Dist. of Columbia v. Gallaher, 124 U. S. 505; Hosmer v. McDonald, 80 Wis. 54.] 1 Illustrations (a), (b), (c). [Gr. Ev. i. §§ 280, 292 ; Houghton v. Wa- tertown Ins. Co., 131 Mass. 300 ; Hatch v. Douglas, 48 Ct. 1 16 ; Atkin- son v. Trucsdell, 127 N. Y. 230 ; Conestoga Co. v. Finke, 144 Pa. 159 ; Mc Donough v. Jolly, 165 Pa. 542 ; Elgin x.Joslyn, 136 111. 525 ; Con- verse v. Wead, 142 111. 132 ; Walrath v. Whittekind, 26 Kan. 482. So where an instrument appears to be incomplete, or where words and phrases used are ambiguous or unintelligible, parol proof is admis- sible to supplement the incomplete term, and to explain what is ob- scure or doubtful. Emmcttv. Penoyer, 151 N. Y. 564 ; Quick v. Glass, 128 Mo. 320.] • Illustration (d). [Collcnder v. Dinsmore, 55 N. Y. 200; Gray v. Shepard, 147 X. Y. 177 ; Moran v. Prather, 23 Wall. 492 ; Odiome v. Marine Ins. Co., 101 Mass. 551. Such words are to be understood in their plain and ordinary sense. Id.; Holston Co. v. Campbell, 89 Va. 396 ; Hunt v. Gray, 76 la. 268.] :! Illustrations (e) and (/). [Kelley v. Kelley, 25 Pa. 460 ; Palmer v. Albec, 50 la. 429 ; cf. Wootton v. Pedd's Excrs., 12 Gratt. 196. This is often called a case of " patent ambiguity," but the better term for it is " uncertainty." The same terms are also applied when the mean- ing of a document remains uncertain, even after evidence of " sur- Chap. XII.] THE LAW OF EVIDENCE. 229 (4) In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may probably have been intended to refer, 1 or which identifies any person or thing mentioned in it. 2 Such facts are hereinafter called the " circumstances of the case." 3 (5) If the words of a document have a proper legal meaning, and also a less proper meaning, they must be deemed to have their proper legal meaning, unless such a construction would be unmeaning in reference to the rounding circumstances" and other permissible explanatory evidence (see paragraphs 2 and 4 in this Article) have been received (Gr. Ev. i. § 300 ; Kretschmer v. Hard, 18 Col. 223). But a patent ambiguity- may not be resolved by parol evidence of other kinds, as e. g., by evidence of a testator's parol statements of intention as to the mean- ing of his will. Lewis v. Douglas, 14 R. I. 604 ; Senger v. Senger, 81 Va. 687 ; Taylor v. Maris, 90 N. C. 614.] 1 See all the Illustrations. 2 Illustration (g). [Gr. Ev. i. §§ 286-290 ; Coleman v. Manhattan Co., 94 N. Y. 229; Reed v. Ins. Co., 95 U. S. 23 ; Bond's Appeal, 31 Ct. 183 ; Stoops v. Smith, 100 Mass. 63 ; Gilmors Estate, 154 Pa. 523 ; Perry v. Bowman, 151 111. 25; Andrews v. Dyer, 81 Me. 104. This evi- dence of the " circumstances of the case " or (as they are more com- monly called) "surrounding circumstances" is received, to put the court in the position of the parties at the time when the instrument was drawn and thus enable it to comprehend their intentions (Id.; Bingelv. Vols, 142 111. 214 ; Barnard v. Barlow, 50 N. J. Eq. 131). But such evidence is not received to alter or modify the plain lan- guage of an instrument, nor when the meaning of the instrument is clear without it (Brawley v. U. S., 96 U. S. 168 ; Veazie v. Forsaith, 76 Me. 172 ; Humphreys v. N. V. etc. R. Co., 121 N. Y. 435 ; Fruin v. Crystal R. Co., 89 Mo. 397 ; Fowler v. Black, 136 111. 363). Under this rule, proof may be given that the maker of the instru- ment habitually applied a nickname or peculiar designation used therein to a particular person or thing. Foggs v. Taylor, 26 O. St. 604; Ryerss v. Wheeler, 22 Wend. 148; Banning v. Sisters of St. Francis, 35 N. J. Eq. 392, note ; see Illustrations (e) and (gg).] 3 As to proving facts showing the knowledge of the writer, and for an instance of a documenfc-which is not admissible for that purpose, see A die v. Clark, 3 Ch. D. 134, 142. 230 A DIGEST OF [Part II. circumstances of the case, in which case they may be interpreted according to their less proper meaning.' (6) If the document has one distinct meaning in reference to the circumstances of the case, it must be construed accordingly, and evidence to show that the author intended to express some other meaning is not admissible. 2 (7) If the document applies in part but not with accuracy or not completely to the circumstances of the case, the court may draw inferences from those circum- stances as to the meaning of the document, whether there is more than one, or only one thing or person to whom or to which the inaccurate description may apply. In such cases no evidence can be given of statements made by the author of the document as to his intentions in reference to the matter to which the document relates, though evidence may be given as to his circumstances, and to his habitual use of language or names for particular persons or things. 3 1 Illustration (//). [Cromer v. Pinckncy, 3 Barb Ch. 466 ; Daugherty v. Rogers, 119 Ind. 254; hi re Fish, [1894] 2 Ch. 83; cf. DeKay v. Irving, 5 Den. 646.] '-' Illustration (/). [American Bible Soc. v. Pratt, 9 Allen, 109 ; Best v. Hammond, 55 Pa. 409 ; Drew v. Swift, 46 N. Y. 204 ; Jackson v. Sill, 11 Johns. 201 ; Cotton v. Smithwick, 66 Me. 360 ; Jackson v. A /sop, 67 Ct. 249 ; Dunham v. Averill, 45 Ct. 61; Fitzpatrick v. Fitzpatrick, 36 la. 674 ; Kurtz v. Hibner, 55 111. 514 ; In re Seal, [1894] 1 Ch. 316. The meaning of plain language in a will must be followed, though it make the will void. Win Nostrandv. Moore, 52 X. Y. 12.] * Illustrations (/•), (/), (m). [Morse v. Steams, 131 Mass. 389; Hinckley v. Thatcher, i;y> Mass. 477 ; Fairfield v. Laivson, 50 Ct. 501 ; St. lake's Home v. Ass'n for Females, 52 X. Y. 191 ; Griscom v. Evens, 40 X. J. L. 402, 42 id. 579 ; Button v. . Imer. Tract Soc, 23 \'t. 336; Appeal of Washington and Lee Univ., 11 1 Pa. 572 ; Hallidayv. Hess, 83 111. 588. This rule illustrates the well-known maxim, Falsa demonstratio non nocet, cum de corpore constat, i. e., a false description works no harm, when the matter of substance remains. The false part of the description is rejected, and if sufficient remains to identify Chap. XII.] THE LAW OF EVIDENCE. 231 (8) If the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given both of the circumstances of the case and of statements made by any party to the docu- ment as to his intentions in reference to the matter to which the document relates. 1 (9) If the document is of such a nature that the court will presume that it was executed with any other than its apparent intention, evidence may be given to show that it was in fact executed with its apparent intention. 2 a particular person or thing, effect can be given to the instrument ; otherwise it is void for uncertainty (Id.; Gr. Ev. i. §§ 291, 301 ; see Illustration («); Muldoon v.Deline, 135 N. Y. 150; Decker v. Decker, I2i 111. 341; Eckford v. Eckford, 91 la. 54). Evidence of "sur- rounding circumstances" may serve to correct a mistake in descrip- tion {Patch v. White, 117 U. S. 210 ; Hawkins v. Garland, 76 Va. 149;. The expression "latent ambiguity" is sometimes applied to cases falling under this paragraph, since the ambiguity is developed by evidence extrinsic to the instrument. Id.; 1 hornell v. Brockton, 141 Mass. 151 ; Whitcomb v. Rod/nan, 156 111. 116 ; Covert v. Sebern, 73 la. 564.] 1 Illustrations (n), (0). [Gr. Ev. i. §§ 289, 290, 297, 298 ; St. Luke's Home v. Ass'n for Females, 52 N. Y. 191, 198; Trustees v. Colegrove, 4 Hun, 362 ; Griscom v. Evens, supra ; Bod/nan v. .liner. Tract Soc, 9 Allen, 447; Fairfield v. Lawson, 50 Ct. 501 ; Goff v. Roberts, 72 Mo. 570 ; Pfeifer v. Nat. Ins. Co., 62 Minn. 536 ; Morgan v. Burrows, 45 Wis. 211. These are also (and more commonly than the cases referred to in the preceding note) called cases of " latent ambiguity," but the more appropriate name is " equivocation" (Gr. Ev. i. § 289 ; Tucker v. Seamen's Aid Society, 7 Met. 188, 206 ; Bradley v. Rees, 113 111. 327). This form of latent ambiguity may be explained by evi- dence of parol statements of intention, as well as by proof of "sur- rounding circumstances ; " still the " surrounding circumstances " are often found to suffice as a means of determining the meaning of the document. Gilmer v. Stone, 120 U. S. 586 ; Skinner v. Harrison T'ft, 1 16 Ind. 139 ; Putnam v. Bond, 100 Mass. 58 ; Ayers v. Weed, 16 Ct. 291 ; Tilton v. Amer. Bible Soc, 60 N. H. 377 ; Tyler v. Fickett, 73 Me. 410 ; Sargent v. Adams, 3 Gray, 72.] ' Illustration [p). [This is called evidence "to rebut an equity" (i.e., an equitable presumption), and oral statements of intention are 232 A DIGEST OF [Part II Illustrations. (a) A lease contains a covenant as to "ten thousand" rabbits. Oral evidence to show that a thousand meant, in relation to rabbits, 1200, is admissible. 1 (b) A sells to B " 1170 bales of gambier." Oral evidence is admis- sible to show that a "bale" of gambier is a package compressed and weighing 2 cwt. 2 (c) A, a sculptor, leaves to B "all the marble in the yard, the tools in the shop, bankers, mod tools for carving." Evidence to show whether "mod" meant models, moulds, or modeling-tools, and to show what bankers are, may be given. 3 (d) Evidence may not be given to show that the word "boats," in a policy of insurance, means "boats not slung on the outside of the ship on the quarter." i (e) A leaves an estate to K, L, M, etc., by a will dated before 1838. Eight years afterwards A declares that by these letters he meant par- ticular persons. Evidence of this declaration is not admissible. Proof that A was in the habit of calling a particular person M would have been admissible." (/) A leaves a legacy to . Evidence to show how the blank was intended to be filled is not admissible. 6 provable for the purpose. Gr. Ev. i. § 296 ; Van Houten v. Post, 33 N. J. Eq. 344 ; Reynolds v. Robinson, 82 N. Y. 103, 107 ; Richardson v. Evcland, 126 111. 37 ; Bank v. Fordyce, 9 Pa. 275 ; cf. Phillips v. M Combs, 53 N. Y. 494.] 1 Smith v. Wilson, 3 B. & Ad. 728. [See Soutier v. Kellerman, 18 Mo. 509 ; Brown v. Brown, 8 Met. 576. But except in special cases like these where words have a peculiar meaning by local custom, usages of business, etc., the meaning of ordinary words cannot be varied. Butler v. Gale, 27 Vt. 739; Mann v. Mann, 14 Johns. 1.] 2 Gorrissen v.Perrin, 2 C. B. (N. S.) 681. [See Miller v. Stevens, 100 Mass. 518 (meaning of "barrels"); Confederate A r otc Case, 19 Wall. 548 (of "dollars"); Carey v. Bright, 58 Pa. 70 (of "collieries"); People v. Borda, 105 Cal. 636 (of "corral "); Dana v. Fiedler, 12 N. Y. 40 ; McDonough v. Jolly, 165 Pa. 542.] 3 Goblet v. Beechy, 3 Sim. 24 ; 2 R. & M. 624. [See Ryerss v. Wheeler, 22 Wend. 148, 153.] 4 Blackett v. Royal Exchange Co , 2 C. & J. 244. 5 Clayton v. Lord Nugent, 13 M. & W. 200 ; see 205-6. [See Beatty v. Trustees, 39 N. J. Eq. 452.] 6 Bay lis v. A. G., 2 Atk. 239. [See Crooks v. Whitford, 47 Mich. 283 ; Chap. XII.] THE LAW OF EVIDENCE. 233 (g) Property was conveyed in trust in 1704 for the support of " Godly preachers of Christ's holy Gospel." Evidence may be given to show what class of ministers were at the time known by that name. 1 (gg) [A leaves a legacy in his will to "The Home of the Friendless in New York." There is no institution of that name, but the legacy is claimed by the " American Female Guardian Society." Evidence may be given that this society has been commonly designated by the name used in the will, both by its officers and friends and by the testator, and that upon its circulars and business signs a name almost identical has been used.]' 2 (h) A leaves property to his "children." If he has both legitimate and illegitimate children, the whole of the property will go to the legitimate children. If he has only illegitimate children, the property may go to them, if he cannot have intended to give it to unborn legitimate children. 3 (z) A testator leaves all his estates in the county of Limerick and city of Limerick to A. He had no estates in the county of Limerick, but he had estates in the county of Clare, of which the will did not dispose. Evidence cannot be given to show that the words "of Clare" had been erased from the draft by mistake, and so omitted from the will as executed. 4 (ii) [A testator devises to X "all that my farm called Trogues-farm, IVallize v. Wallize, 55 Pa. 242 ; Lefevre v. Lefevre, 59 N. Y. 434, 441 ; Vandervoort v. Dewey, 42 Hun, 68; cf. Crocker v. Crocker, 5 Hun, 587.] In In re Bacon s Will, Camp v. Coe, 31 Ch. D. 460, blanks were left in a will, and parol evidence was admitted to rebut any presump- tion arising from them against the prima facie claim of the executor to the residue undisposed of. 1 Shore v. Wilson, 9 C. & F. 365, 565-6. [See Robertson v. Bullions, 1 1 N. Y. 243, 259 ; Hinckley v. Thatcher, 139 Mass. 477, 480 ; Goddard v. Foster, 17 Wall. 143.] 2 \Lefevre v. Lefevre, 59 N. Y. 434 ; see Sutton v. Bowker, 5 Gray, 416; Woodv. Hammond, 16 R. I. 98 ; Missionary Soc. v. Mead, 131 111. 338-] 3 Wig. Ext. Ev. pp. 18 and 19, and note of cases. [Appelv. Byers, 98 Pa. 479 ; B rower v. Bowers, 1 Abb. Dec. 214 ; Hill v. C?-ook, L. R. 6 H. L. 265 ; see Gelston v. Shields, 16 Hun, 143, 78 N. Y. 275. So the word " children " does not include grandchildren, except when there are no children, in the usual sense of the word. Mowatt v. Carow, J Pai. 328 ; West v. Rassman, 135 Ind. 278.] 4 Miller v. Travers, 8 Bing. 244. [See Tucker v. Seamen s Aid Soc, 234 A DIGEST OF [Part II. now in the occupation of C." Evidence of "surrounding circum- stances" being received showed that the testator owned a farm called by this name, but that only part of it was in the occupation of C. The last part of the description being inaccurate was therefore rejected, and it was held that the whole of Trogues-farm passed to the devisee, thus satisfying the word "all " in the first part of the description.] ' (J) A leaves a legacy to "Mrs. and Miss Bowden." No such per- sons were living at the time when the legacy was made, but Mrs. Washburne, whose maiden name had been Bowden, was living, and had a daughter, and the testatrix used to call them Bowden. Evidence of these facts was admitted. 2 (k) A devises land to John Hiscocks, the eldest son of John His- cocks. John Hiscocks had two sons, Simon, his eldest, and John, his second son, who, however, was the eldest son by a second marriage. The circumstances of the family, but not the testator's declarations of intention, may be proved in order to show which of the two was intended. 3 (/) A devises property to Elizabeth, the natural daughter of B. B has a natural son John, and a legitimate daughter Elizabeth. The court may infer from the circumstances under which the natural child was born, and from the testator's relationship to the putative father, that he meant to provide for John. 4 {in) A leaves a legacy to his niece, Elizabeth Stringer. At the date of the will he had no such niece, but he had a great-great-niece named Elizabeth Jane Stringer. The court may infer from these circum- stances that Elizabeth Jane Stringer was intended ; but they may not refer to instructions given by the testator to his solicitor, showing that the legacy was meant for a niece, Elizabeth Stringer, who had died 7 Met. 188 ; Dunham v. Averill, 45 Ct. 61; Sturgis v. Work, 122 Ind. I34-] 1 [Goodlitle v. Southern, 1 M. & S. 299; approved in Slingsby v. Grainger, 8 H. L. C. 273, 282. S. P. WinkZey v. Kainie, 32 N. H. 268 ; Fitzpatrick v. Fitzpatrick, 36 la. 674.] 2 Lee v. Pain, 4 Hare, 251-3 ; [Gr. Ev. i. § 291.] 3 Doe v. Hiscocks, 5 M. & W. 363. [/« re Taylor, 34 Ch. D. 255 ; In re Chappell, [1894] P. 98 ; see Smith v. Smith, 1 Edw. Ch. 189, 4 Pai. 271; Connolly v. Pardon, 1 Pai. 291; Thayer v. Boston, 15 Gray, 347-] 4 Ryall v. Hannam, 10 Beav. 536. Chap. XII.] THE LAW OF EVIDENCE. 235 before the date of the will, and that it was put into the will by a mis- take on the part of the solicitor. 1 (n) A devises one house to George Gord, the son of George Gord, another to George Gord, the son of John Gord, and the third to George Gord, the son of Gord. Evidence both of the circumstances and of the testator's statements of intention may be given to show which of the two George Gords he meant. 2 (o) A appointed " Percival , of Brighton, Esquire, the father," one of his executors. Evidence of surrounding circumstances may be given to show who was meant, and (probably) evidence of state- ments of intention. 3 (p) A /eaves 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 cumula- tive, but the legatee may show, either by proof of surrounding circum- stances, or of declarations by the testator, that they were. 4 Article 92.* cases to which articles 90 and 91 do not apply. Articles 90 and 91 apply only to parties to documents, and their representatives in interest, and only to cases in which some civil right or civil liability dependent upon * See Note XXXIV. [Appendix]. 1 Stringer v. Gardiner, 27 Beav. 35 ; 4 De G. & J. 468 ; [cf. Gallup v. Wright, 61 How. Pr. 286.] - Doe v. Needs, 2 M. & W. 129. [There were only two George Gords to claim the third devise, viz., those who were named as the recipients of the first and second devises. Hence this became a case of " equiv- ocation," admitting evidence of statements of intention.] 3 If 1 the Goods of de Rosaz, L. R. 2 P. D. 66. [Mr. Stephen's state- ment, that " probably evidence of statements of intention " might have been given in this case, hardly seems warranted by the decision. No such evidence was received, and, on principle, it does not seem com- petent. There was only one person to whom the description accurately applied.] 4 Per Leach, V. C, in Hurst v. Leach, 5 Madd. 351, 360-1. The rule in this case was vindicated, and a number of other cases both before and after it were elaborately considered by Lord St. Leonards, 236 A DIGEST OF [Part II. the terms of a document is in question. Any person other than a party to a document or his representative in inter- est may, notwithstanding the existence of any document, prove any fact which he is otherwise entitled to prove ; ' and any party to any document or any representative in interest of any such party may prove any such fact for any purpose other than that of varying or altering any right or liability depending upon the terms of the docu- ment. 3 Illustrations. a) The question is, whether A, a pauper, is settled in the parish of Cheadle. A deed of conveyance to which A was a party is produced, purporting to convey land to A for a valuable consideration. The parish appealing against the order was allowed to call A as a witness to prove that no consideration passed. 3 (b) The question is, whether A obtained money from B under false pretences. The money was obtained as a premium for executing a deed of partnership, which deed stated a consideration other than the one which constituted the false pretence. B may give evidence of the false pretence, although he executed the deed mis-stating the consideration for the premium. 4 when Chancellor of Ireland, in Hall v. Hall, 1 Dru. & War. 94, m- 133. See, too, Jetwer v. Hinch, L. R. 5 P. D. 106. [See p. 231, note 2, ante, and cases cited.] 1 [Gr. Ev. i. § 279; IVilsoti v. Sullivan, 58 N. H. 260; Burnham v. Dorr, 72 Me. 198 ; Fonda v. Burton, 63 Vt. 355 ; Hankinson v. Van- tine, 152 N. Y. 20; First Nat. Bk. v. Dunn, 55 N. J. L. 404 ; Bruce v. Roper Co., 87 Va. 381 ; Needles v. Hani/an, 1 1 111. App. 303 ; Pfeifer v. Nat. Ins. Co., 62 Minn. 536, 538 ; Burns v. Thompson, 91 Ind. 146. In a suit between a party to an instrument and a stranger to it, either of them may prove facts by parol evidence differing from the contents of the instrument ; so also may strangers to the instrument, in a suit between themselves (Lowell Mfg. Co. v. Safeguard Ins. Co., 88 N. Y. 591 ; Clapp v. Banking Co., 50 O. St. 528 ; Dunn v. Price, 112 Cal. 46). And even in a controversy between the parties, the rule prohibiting parol evidence may be waived. Brady v. Nally, 151 N. Y. 258.] 2 [See Illustration (/>).] 3 R. v. Cheadle, 3 B. & Ad. 833. 4 R. v. Adamson, 2 Moody, 286. Y Chap. XIII.] THE LAW OF EVIDENCE. 237 PART III. PRODUCTION AND EFFECT OF EVIDENCE. CHAPTER XIII* BURDEN OF PROOF. Article 93.1 he who affirms must prove. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence or non- existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist. 1 Article 94.! presumption of innocence. If the commission of a crime is directly in issue m any proceeding, criminal or civil, it must be proved beyond reasonable doubt. 2 *See Note XXXV. [Appendix]. |See Note XXXVI. [Appendix]. 1 1 Ph. Ev. 552; T. E. (from Greenleaf) s. 337; Best, ss. 265-6; Starkie, 585-6. [Gr. Ev. i. § 74 ; Wh. Ev. i. §§ 353-357 ; Sawyer v. Child, 68 Vt. 365 ; Willett v. Rich, 142 Mass. 356.] 3 [In respect to trials for crime this rule is well settled {Miles v. U. S., 103 U. S. 304 ; People v. Downs, 123 N. Y. 558 ; Gardner v. State, 55 N. J. L. 17; Nevling v. Com/n., 98 Pa. 322). "Beyond reasonable doubt " is sometimes defined to mean the same as " to a moral certainty" 238 A DIGEST OF [Part HI The burden of proving that any person has been guilty {Comm. v. Costley, 1 18 Mass. I ; Morgan v. State, 48 O. St. 371 ; People v. Paulsell, 115 Cal. 6; Carrv. State, 23 Neb. 749); sometimes as re- quiring evidence so convincing that reasonable men would unhesi- tatingly be governed by it in their most important and serious interests (Hopt v. Utah, 120 U. S. 430 ; Siberry v. State, 133 Ind. 677 ; Fletcher v. State, 90 Ga. 468); and other definitions are given, not always har- monious {People v. Barker, 153 N. Y. 1 1 1 ; Comm. v. Mudgett, 174 Pa. 211; Little v. People, 157 111. 153 ; People v. .£k8r) A sues B for damage done to A's ship by inflammable matter loaded thereon by B without notice to A's captain. A must prove the absence of notice. 2 (c) The question in 1819 is, whether A is settled in the parish of a man to whom she was married in 1813. It is proved that in 1812 she was married to another person, who enlisted soon afterwards, went abroad on service, and had not been heard of afterwards. The burden of proving that the first husband was alive at the time of the second marriage is on the person who asserts it. 3 proposition, if that is a constituent element of the crime or wrongful act. Colorado Coal Co. v. U. S., 123 U. S. 307 ; see Illustration (b).~\ 1 Thurlellv. Beaumont, 1 Bing. 339; [generally denied in this coun- try ; see note on p. 239, supra, and 10 Am. Law Rev. 642, 17 Am. Law Reg. N. S. 302 ; Welch v. JugenJieimer, 56 la. 1 1.] 8 Williams v. East India Co., 3 Ea. 102, 198-9. [Harris v. White, 81 N. Y. 532, 547 ; cf. Boston, etc. R. Co. v. Shanly, 107 Mass. 568.J 3 R. v. Twyning, 2 B. & A. 386. [The ground of this decision was that the law presumes against the commission of crime. The woman was, therefore, presumed innocent of bigamy, though the second mar- riage was only a year after the first and though it would ordinarily be presumed that the first husband was still living (see Art. 99 ; also Art. 95, Illustration i). The presumption of life yielded to the presumption of innocence and the person asserting her guilt of bigamy had, con- sequently, the burden of proving that the first husband was alive. So in this country it is held that the law, in cases like this, in a general way prefers the presumption of innocence to that of the continuance of life (Bishop, M. D. & S. i. § 953 ; Gr. Ev. i. § 35 ; Nesbitv. Nesbit, 3 Dem. 329 ; Jolinson v. Johnson, 1 14 111. 61 1 ; Wilkie v. Collins, 48 Miss. 511; Hunter v. Hunter, 1 1 1 Cal. 261 ; Squire v. State, 46 Ind. 459, see 86 Ind. 75 ; Murray v. Murray, 6 Or. 17 ; Dixon v. People, 18 Mich. 84 ; Kelly v. Drew, 12 Allen, 107 ; cf. Hyde Park v. Canton, 130 Mass. 505 ; Dunlop v. U. S., 165 U. S. 486, 503 ; Howardv. State, 75 Ala. 27 ; People v. Strassman, 112 Cal. 683). So a divorce from a prior marriage has been presumed in order to sustain the validity of a second marriage. Schmisseurv. Beatrie, 147 111. 210 ; Boulden v. Mclntire, 1 19 Ind. 574 ; Erwin v. English, 61 Ct. 502 ; In re Edwards, 58 la. 431; cf. Barnes v. Barnes, 90 la. 282 ; Castor v. Davis, 120 Ind. 231 ; Randlett v. Rice, 141 Mass. 385.] 242 A DIGEST OF [Part III. Article 95. on whom the general burden of proof lies. The burden of proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side, regard being had to any presumption which may appear upon the pleadings. 1 As the proceeding goes on, the burden of proof may be shifted from the party on 1 1 Ph. Ev. 552 ; T. E. ss. 338-9 ; Starkie, 586-7 & 748 ; Best, s. 263 ; and see Abrath v. N. E. Ry., 1 1 Q. B. D. 440, especially the judgment of Bowen, L. J., 455-462. [Gr. Ev. i. §§ 74-82 ; Veiths v. Hagge, 8 la. 163 ; Wilder v. Cowles, 100 Mass. 487, 490 ; Heinemann v. Heard, 62 N. Y. 448 ; Jones v. Jones, 137 N. Y. 610 ; Judge oj Probate v. Stone, 44 N. H. 593; Lindley v. Sullivan, 133 Ind. 588; Mc Reynolds v. Burlington, etc. R. Co., 106 111. 152 ; Ay. Mfg. Co. v. Louisville, 97 Ky. 548. If the defendant in an action pleads a traverse or denial (either with or without pleas by way of confession and avoidance, counterclaims, etc.), and thus denies the whole or any material part of the plaintiff's claim, the plaintiff has the burden of proof at first, for he must prove what is denied in order to establish his cause of action ; and this is true whether any material averment thus denied is affirmative or negative in form {Roberts v. Chittenden, 88 N. Y. 33 ; Lake Ontario Bk. v. Judson, 122 X. Y. 278; Schutz v. Jordan, 141 U. S. 213 ; RaJnn v. Deeg, 121 Ind. 283 ; Carpenter v. First Nat. Bk., 119 111. 352; Boston Relief Co. v. Burnett, 1 Allen, 410; Button v. Frink, 51 Ct. 342 ; see Art. 96, Illustration c). But where the defend- ant so pleads (as by confession and avoidance or other affirmative defence, without a denial) as to admit all the allegations of the com- plaint or declaration which are essential to the cause of action, the burden of proof lies upon him, the issue then being upon such matter of defence {Murray v. X. Y. Life Ins. Co., 85 N. Y. 236 ; Conselyea v. Swift, 103 X. Y. 604 ; Kent v. Mason, 79 111. 540 ; Phenix Ins. Co. v. Pickel, 119 Ind. 156; Bixby v. Carskaddon, 70 la. 726; Clark v. Murphy, 164 Mass. 490); if, however, the action is for unliquidated damages and the defendant pleads only an affirmative defence, it is held in a number of our States that the plaintiff, if he seeks sub- stantial damages, has the burden of proof and the right to begin, since the amount recoverable is not admitted upon the pleadings, and Chap. XIII.] THE LAW OF EVIDENCE. 243 whom it rested at first by his proving facts which raise a presumption in his favor. 1 the plaintiff must therefore prove his damages {Johnson v. Josephs, 75 Me. 544 ; Dille v. Lovell, 37 O. St. 415 ; Waiisan Boom Co. v. Dunbar, 75 Wis. 133; Young v. Highland, 9 Gratt. 16; Talhnadge v. Press Pubg Co., 14 N. Y. S. 331 ; but see McCoy v. McCoy, 106 Ind. 492). The party having the right to begin has also, in general, the right to close the case (see all the cases supra), but in some States the court may, in its discretion, vary this order, if the other side is not prejudiced thereby {Carpenter v. First Nat. Bk., 119 111. 352). In Massachusetts it is a general rule that the right to open and close be- longs to the plaintiff. Dorr v. Tremont Nat. Bk., 128 Mass. 349, 358.] 1 [The general burden of proof upon the main issue does not really shift from the party upon whom it rests at the beginning, but remains upon him throughout the trial (Gr. Ev. i. 74, n.; Heincmann v. Heard, 62 N. Y. 448; Fanners L. &> T. Co. v. Siefke, 144 N. Y. 355 ; Tarbox v. Eastern Steamboat Co., 50 Me. 339 ; Phipps v. Mahon, 141 Mass. 471 ; Atkinson v. Goodrich Transp. Co., 69 Wis. 5 ; Scott v. Wood,%\ Cal. 398 ; Central Bridge Corp. v. Butler, 2 Gray, 132). In criminal cases it re- mains on the government throughout the trial {Lilienthal's Tobacco v. U. S., 97 U. S. 237, 266 ; Tiffany v. Comm., 121 Pa. 165 ; People v. Mc- Whorter, 93 Mich. 641 ; People v. Ribolski, 89 Cal. 493 ; State v. Wingo, 66 Mo. 181 ; O' Connelly. People, 87 N. Y. 377). But after such party has given evidence, which, in the absence of further proof, would be suffi- cient to entitle him to recover, the other party will then need to give evidence in rebuttal or defence, whereupon the former may need to furnish additional evidence to complete the requisite proof of his alle- gations. And this successive transfer from one party to the other of the obligation to submit evidence is what is often called the "shifting of the burden," though in fact what really takes place is rather a shift- ing of the weight of evidence as the trial progresses {Lamb v. Camden, etc. R. Co., 46 N. Y. 271 ; Pease v. Cole, 53 Ct. 53; Burnham v. Allen, 1 Gray, 496; Agneru v. U. S., 165 U. S. 36; Clark v. Hills, 67 Tex. 141). Sometimes, upon the principle, res ipsa loquitur, the party holding the affirmative upon the issue can establish a sufficient prima facie case by showing the mere occurrence of acts which raise a presump- tion in his favor (Illustration (_/); Gleeson v. Va. R. Co., 140 U. S. 435 ; Houston v. Brush, 66 Vt. 331 ; Graham v. Badger, 164 Mass. 42 ; Len- 71011 v. Rawitzer, 57 Ct. 583 ; Volkmar v. Manhattan R. Co., 134 N. Y. 418 ; Excelsior Elec. Co. v. Sweet, 57 N. J. L. 224 ; Shafer v. Lacock, 168 Pa. 496; Howserv. Cumberland, etc. R. Co., 80 Md. 146; Och v. Mo, etc. R. Co., 130 Mo. 27). But ordinarily he must give sufficient 244 A DIGEST OF [Part III. Where there are conflicting" presumptions, the case is the same as if there were conflicting evidence. 1 Illustrations. (a) It appears upon the pleadings that A is indorsee of a bill of ex- change. The presumption is that the indorsement was for value, and the party interested in denying this must prove it. 3 (ab) [A, the indorsee of a negotiable instrument, produces it in evidence in an action against the maker. The presumption is that he acquired it bona fide for value before maturity. The defendant may then prove that the instrument had been lost or stolen before A acquired it, or that there was fraud or illegality in its inception. The burden then falls upon A to prove that he obtained the instrument for value before maturity and in good faith, without knowledge or notice of the facts impeaching its validity.] 3 (b) A, a married woman, is accused of theft and pleads not guilty. The burden of proof is on the prosecution. She is shown to have been in possession of the stolen goods soon after the theft. The bur- den of proof is shifted to A. She shows that she stole them in the evidence to prove all the material allegations of his case, regard being had to the different degrees of proof required in civil and criminal cases. Comm. v. McKie, I Gray, 6 1 ; Cosulich v. Standard Oil Co., 122 N. Y. 1 1 8 ; Ba/irv. Lombard, 53 N. J. L. 233 ; Mixter v. Imperial Coal Co., 152 Pa. 395 ; Hart v. Washington Club, 157 111. 9 ; Doivell v. Guthrie, 116 Mo. 646.] 1 See Illustration (/). 8 Mills v. Barber, 1 M. & W. 425. [Harger v. Worrall, 69 X. Y. 370 ; Gray's Admr. v. Bk. of Kentucky, 29 Pa. 365 ; Estabrook v. Boyle, 1 Allen, 412 ; cf. Smith v. Sac Co., 11 Wall. 139.] :i [Canajoharie Nat. Bk. v. DiefendorJ, 123 N. Y. 191 ; Smith x. Liv- ingston, 11 1 Mass. 342 ; Lerch Hardware Co. v. First Xat. Bk., 109 a. 240; A f c Corker v. Banks, 84 Md. 292 ; Giberson v./olley, 120 Ind. 301 ; Horrigan v. Wyman t 90 Mich. 121 ; Bank of Montreal x. Richter, 55 Minn. 362 ; Campbell x. Hoff, 129 Mo. 317 ; cf. Amer. Ex. Xat. Ilk. v. N. Y. Belting Co , 148 N. Y. 698. This is the generally accepted rule, though a few authorities state that ultimately the burden is on defendant to show that plaintiff had notice of impeaching facts, in- -tt .id of on plaintiff to show that he had no notice. Todd x Wich Bros., 36 O. St. 370, 390; Kellogg x. Curtis, 6g Me 212.] Chap. XIII.] THE LAW OF EVIDENCE. 245 presence of her husband. The burden of proving that she was not coerced by him is shifted on to the prosecutor. 1 (c) A is indicted for bigamy. On proof by the prosecution of the first marriage, A proves that at the time he- was a minor. This throws on the prosecution the burden of proving the consent of A's parents. 2 (cc) [A, the owner of goods, sues B, a bailee, to whom he has entrusted them, for the value of the goods, on the ground that they have been lost or injured through B's neglect. A establishes a prima facie case of negligence by proving the bailment of his goods and that B, upon due demand made by A for their delivery, refused to restore them. The duty then resting on B to explain the loss or de- struction, he shows that the goods were taken by thieves or were destroyed by fire. It then devolves upon A to prove that such theft or fire was the result of defendant's negligence.] 3 1 1 Russ. Cri. 33 ; 2 id. 337. [The old rule that the recent exclusive possession of stolen goods raises a legal presumption of guilt, is still maintained in Missouri (State v. Jennings, 81 Mo. 185 ; Slate v. War- ford, 106 Mo. 55). But the rule now generally established in this coun- try is that such possession only raises a presumption oifact, or affords prima facie evidence of guilt, to be considered by the jury, and juries are instructed that if the possession is not satisfactorily explained, they may infer guilt or are authorized to find guilt (Wilson v. U. S., 162 U.S. 613; Coram, v. McGorty, 114 Mass. 299; Stover v. People, 56 N. X. 315 ; People v. Weldon, in N. Y. 569 ; Blaker v. State, 130 Ind. 203 ; Keating v. People, 160 111. 480 ; State v. Richart, 57 la. 215 ; State v. Hoffman, 53 Kan. 700 ; Porterfield v. Comm., 91 Va. 801 ; Orr v. State, 107 Ala. 35 ; Griffin v. State, 86 Ga. 257 ; Bellamy v. State, 35 Fla. 242 ; Harper v. State, 71 Miss. 202). Upon either theory the bur- den is on the defendant to explain his possession. Some cases regard the recent possession as simply evidence for the jury tending to show guilt (State v. Hodge, 50 N. H. 510; People v. Abbott, 161 Cal. 645). Similar rules are generally applied in trials for burglary, arson and like offences, but in some States such evidence is not deemed prima facie evidence of burglary as it is of larceny (State v. Jennings, 79 la. 513 ; People v. Wood, 99 Mich. 620 ; Gravely v. Comm., 86 Va. 396). As to presumed coercion of wife by husband, see Art. 101, note.] 2 7?. v. Butler, 1 R. & R. 61. [The English Marriage Act, then in force, provided that the marriage of a minor, without the consent of parents, should be "null and void."] 3 \Claflin v. Meyer, 75 X. V. 260 ; Stewart v. Stone, 127 N. Y. 500; 246 A DIGEST OF [Part III. (cd) [When the probate of a will is contested on the ground of the alleged insanity of the testator, it is for the proponent to establish a prima facie case in favor of the validity of the will. This he may do by the evidence of the subscribing witnesses that the testator duly executed the will and was of sound mind, such evidence being aided by the usual presumption of sanity. The burden is then upon the contestant to produce evidence that the testator was of unsound mind. The proponent may then give evidence in rebuttal. The genera! burden of proof, however, does not shift during the trial but rests upon the proponent, and if, when all the evidence on both sides has been received, the court is not satisfied by a preponderance of the evidence that the testator was of sound mind, the will should not be admitted to probate.] ' Dinsmore v. Abbott, 89 Me. 373; Bus-well v. Fuller, 89 Me. 600; Willettv. Rich, 142 Mass. 356 (where the goods were restored in a damaged state); Cross v. Brown, 41 N. H. 283 ; Denton v. C, R. I. &* F. R. Co., 52 la. 161. But in some States the bailee, explaining the cause of loss or injury, must also show that it was not due to his negligence {Funkhouser v. Wagner, 62 111. 59 ; Taussig v. Schields, 26 Mo. App. 318 ; Bagley Elev. Co. v. Amer. Exp. Co., 63 Minn. 142 ; cf. Boies v. Hartford, etc. R. Co., 37 Ct. 272). Similar rules apply to carriers of goods who are in default as to delivery. Whitworth v. Erie R. Co., 87 N. Y. 413 ; Buck v. Pa. R. Co., 150 Pa. 170 ; Boehlv. Chicago, etc.R. Co., 44 Minn. 191 ; Transportation Co. v. Downer, n Wall. 129 ; Hutchinson on Carriers, 2d ed., §§ 765-768.] 1 \Crowninshield v. Crowninshield, 2 Gray, 524, as modified by Baxter v. Abbott, 7 Gray, 71 ; Matter of Flansburgh, 82 Hun, 49; Norton v. Paxton, no Mo. 456; Prentis v. Rates, 93 Mich. 234; Chrisman v. Chrisman, 16 Or. 127 ; cf. Hardy v. Merrill, 56 N. H. 227; Johnson v. Stivers, 95 Ky. 128. Some States, however, hold that the testator's sanity is not presumed but is solely a matter for proof by the proponent {Robinson v. Adams, 62 Me. 369 ; McMechen v. McMechen, 17 W. Ya 683, 699; Layman's Will, 40 Minn. 371; Beazleyv. Denson, 40 Tex. 416 ; cf. Williams v. Robinson, 42 Yt. 658). Other States, on the contrary, hold that on the production^ the will and proof of its due formal execution, the presumption of sanity (without proof thereof) makes a sufficient prima facie case (Grubbsv. McDonald, 91 Pa. 236 ; Higgins v. Carlton, 28 Md. 115; McCulloch v. Campbell, 49 Ark. 367; Bamewallv. Murrell, 108 Ala. 366; cf. Elkinton v. Brick, 44 X. J. Eq. 154). In Illinois, if the evidence on both sides as to the testator's capacity is ecmally balanced, the pre- sumption of sanity still avails the proponent and the will is admitted Chap. XIII.] THE LAW OF EVIDENCE. 247 (ce) [A is indicted for a crime and pleads not guilty. The burden is upon the prosecution to prove that he committed the act charged. He then gives evidence to show that he was insane when the act was committed. The prosecution may then give evidence to prove that he was sane, and if the entire evidence does not satisfy the jury of his sanity beyond a reasonable doubt, A must be acquitted.] 1 to probate ; the burden of proof on the whole case is, therefore, said to lie upon the contestant (Graybeal v. Gardner, 146 111. 337; see Barber s Appeal, 63 Ct. 393). The burden of proof as to undue influence is generally held to lie upon the contestant, after it has been made to appear that the will was duly executed by a person of competent understanding {Baldwin v. Parker, 99 Mass. 79 ; Will -of Martin, 98 N. Y. 193 ; Dumont v. Dumonf, 46 N. J. Eq. 223; Webber v. Sullivan, 58 la. 260; Arm- strong v. Armstrong, 63 Wis. 162 ; Morton v. Heidorn, 135 Mo. 608; Prentis v. Bates, 93 Mich. 234, 245 ; McMechen v. McMechen, 17 W. Va. 683 ; cf. Freeman v. Hamilton, 74 Ga. 317). But when the contestant has given evidence sufficient to establish undue influence, the burden of rebutting it lies on the proponent {Matter of Green, 67 Hun, 527; Loder v.Whelpley, no N. Y. 239, 250; Denning v. Butcher, 91 la. 425, 440). A New York statute provides that, in order that a will may be admitted to probate, it must appear to the surrogate that it was duly executed and that the testator was competent to make a will and not under restraint (Code Civ. Pro. § 2623 ; see Matter of Mabie, 5 Misc. 179). The existence of a special confidential relation between the testator and a beneficiary under the will may cast the burden, as to undue in- fluence or coercion, upon the proponent. Will of Smith, 95 N. Y. 516; Richmond's Appeal, 59 Ct. 226; Miller's Estate, 179 Pa. 645; Henry v. Hall, 106 Ala. 84 ; cf. Denning v. Butcher, 91 la. 425 ; see Art. 97 a.] 1 [ Walker v. People, 88 N. Y. 81; People v. Nino, 149 N. Y. 317; Davis v. U. S., 160 U. S. 469 ; State v. Bartlett, 43 N. H. 224 ; Comm. v. Pomeroy (Mass.) cited in 160 U. S. 483 ; Plummer v. State, 135 Ind. 308 ; Lilly v. People, 148 111. 467 ; Revoir v. State, 82 Wis. 295 ; State v. Nixon, 32 Kan. 205; Furst v. State, 31 Neb. 403; Armstrong v. State, 30 Fla. 170 ; Ford v. State, 73 Miss. 734 ; King v. State, 91 Tenn. 617 ; cf. State v. Schweitzer, 57 Ct. 532. But in most of the States it is the rule that the defendant, to be acquitted, must prove his insanity by a preponderance of evidence [State v. Lawrence, 57 Me. 574 ; Graves v. State, 4; N. J. L. 203 & 347 ; Comm. v. Bezek, 168 Pa. 603 : Kclch v State, 55 O. St. 146; State v. Trout, 74 la. 545; State v. 2 4 8 A DIGEST OF [Part III (d) A deed of gift is shown to have been made by a client to his solicitor. The burden of proving that the transaction was in good faith is on the solicitor. 1 Grear, 29 Minn. 221; State v. Lewis, 20 Nev. 333; People v. Ward, 105 Cal. 335 ; State v. Wright, 134 Mo. 404 ; Boiling v. State, 54 Ark. 588 ; Moore v. Comm., 92 Ky. 630 ; Dejarnette v. Comm., 75 Va. 867 ; State v. Alexander, 30 S. Car. 74; Maxwell v. State, 89 Ala. 150; Keener v. State, 97 Ga. 388 ; Boren v. State, 32 Tex. Cr. 637. In a few States he is required to prove his insanity beyond a reasonable doubt {State v. Hansen, 25 Or. 391; State v. Clements, 47 La. Ann. 1088). As to the defence of alibi, the burden is also on the defendant to produce evidence to prove it. In most States, if upon such evidence, either by itself {Howard v. State, 50 Ind. 190 ; Wallers v. State, 39 O. St. 216; Bennett v. State, 30 Tex. App. 341), or in connection with the other evidence in the case, the jury have, at the end of the trial, a rea- sonable doubt of guilt, they should acquit (Carlton v. People, 150 111. 181; Comm. v. Choate, 105 Mass. 451; State v. Harvey, 131 Mo. 339; People v. Pong Ah Sing, 64 Cal. 253; Ware v. State, 59 Ark. 379; Murphy v. State, 31 Fla. 166; State v. Conway, 55 Kan. 323; State v. Stone, 117 N. Y. 480). In a few States the defendant, to be acquitted, must prove the alidiby a preponderance of evidence (Stalev.Bcasley, 84 la. 83; State v. Jackson, 1 ^ S. Car. 487). In still other States the rule is that defendant's evidence as to this defence should preponder- ate, but if it does not, and yet, with the other evidence in the case, it leaves a reasonable doubt of guilt, there should be an acquittal (State v. Ward, 61 Vt. 153 ; Miles v. State, 93 Ga. 117 ; Rudy v. Comm., 128 Pa. 500 ; State v. Freeman, 100 N. C. 429; Prince v. State, 100 Ala. 144). So as to evidence to show self-defence, the accused is entitled to the benefit of a reasonable doubt (Plummer v. State, 135 Ind. 308 ; State v. Donahoe, 78 la. 486; Hubbard v. State, 37 Fla. 156; People v. Coughlin, 65 Mich. 704; People v. Riordan, 117 N. Y. 71; Tiffany v. Comm., 121 Pa. 165; Miller v. State, 107 Ala. 40 ; State v. Wingo, 66 Mo. 181); but in a few States such evidence, adduced by the defend- ant, must preponderate (Stale v. fones, 20 \V. Va. 764 ; Weaver v. State, 24 O. St. 584). In some States it is held that upon all matters of defence, the ac- cused is entitled to the benefit of a reasonable doubt. People v. Rior- dan, 1 17 N. V. 71 ; Gravely v. State, 38 Neb. 873 ; People v. Boling, 83 Cal. 380 ; State v. Schweitzer, 57 Ct. 532 ; People v. Coughlin, 65 Mich. 704.] 1 1 Story, Eq. Juris., s. 310, n. 1, quoting Hunter v. Atkins, 3 M. & Chap. XIII.] THE LAW OF EVIDENCE. 249 (if) It is shown that a hedge stands on A's land. The burden of proving that the ditch adjacent to it is not A's also is on the person who denies that the ditch belongs to A. 1 (/) A proves that he received the rent of land. The presumption is that he is owner in fee simple, and the burden of proof is on the person who denies it.' 2 (g) A finds a jewel mounted in a socket, and gives it to B to look at. B keeps it, and refuses to produce it on notice, but returns the socket. The burden of proving that it is not as valuable a stone of the kind as would go in the socket is on B. 3 (/z) A sues B on a policy of insurance, and shows that the vessel insured went to sea, and that after a reasonable time no tidings of her have been received, but that her loss has been rumored. The burden of proving that she has not foundered is on B. 4 (z) Z in 1864 married A. In 1868 he was convicted of bigamy in having in 1868 married B during the life of A. In 1879 ne married C. In 1880, C being alive, he married D, and was prosecuted for bigamy in marrying D in the lifetime of C. The prisoner on his second trial proved the first conviction, thereby proving that A was living in 1868. No further evidence was given. A's being alive in 1868 raises a presumption that she was living in 1879. Z's marriage to C in 1879, being presumably innocent, raises a presumption that A was then dead. The inference [z. P. R. Co., 58 Md. 482 ; Gill v. Homrighousen, 79 Wis. 634 ; Lorimer v. St. Paul Ry. Co., 48 Minn. 391; St. Louis, etc. R. Co. v. Weaver, 35 Kan. 412; Omaha R. Co. v. Martin, 48 Neb. 66 ; MacDougall v. Central R. Co., 63 Cal. 431 ; Moffatt v. Tenney, ij Col. 189 ; Ford v. Umatilla Co., 15 Or. 313 ; 252 A DIGEST OF [Part III. on a ship. B alleges that A knew of and concealed from B material facts. B must give enough evidence to throw upon A the burden of disproving his knowledge; but slight evidence will suffice for this purpose. 1 (c) In an action for malicious prosecution the plaintiff must prove ( i ) his innocence ; (2) want of reasonable and probable cause for the prosecution ; (3) malice or indirect motive ; and he must prove all that is necessary to establish each proposition sufficiently to throw the burden of disproving that proposition on the other side. 8 {54 A DIGEST OF [Part III. quired for this purpose depends upon the nature of the confidence or authority, and on the character of the trans- action. 1 1 See Story's Equity, § 307 and following ; also Taylor on Evidence, s. 129 and following. The illustrations of the principle are innumer- able and very various. [See Pomeroy's Eq. Jur., §§ 943-963. Such confidential relations exist between trustee and cestui que trust, attor- ney and client, physician and patient, priest and penitent, parent and child, guardian and ward, husband and wife, partner and co-partner, principal and surety, principal and agent, and generally where per- sons are associated together in some special relation of trust and con- fidence. The trustee, attorney, etc., must prove that in dealings with the other, beneficial to himself, he took no advantage but exercised entire good faith (Darlington's Estate, 147 Pa. 624 ; Barnard v. Gantz, 140 N. Y. 249; Roby v. Colehour, 135 111. 300). For cases of attorney and client, see Morrison v. Smith, 130 111. 305 ; Porter v. Bergen, 54 N. J. Eq. 405 ; Burnham v. Heselton, 82 Me. 495 ; Whipple v. Barton, 63 N. H. 613 ; Tancre v. Reynolds, 35 Minn. 476 ; Art. 95, atite, Illus- tration (d); of parent and child, White v. Ross, 160 111. 56; Clark v. Clark, 174 Pa. 309 ; of guardian and ward, Gillettv. Wiley, 126 111. 310 ; McConkcy v, Cockey, 69 Md. 286 ; of priest and confiding parishioner, Pirofii v. Corrigan, 47 N. J. Eq. 135 ; Marx v. McGlytin, 88 N. Y. 357 ; of physician and patient, Bogie v. Nolan, 96 Mo. 86 ; of business ad- viser and aged or feeble-minded person relying upon him, Green v. Roworth, 1 13 N. Y. 462 ; Zimmerman v. Bitner, 79 Md. 115; Gates v. Cornell, 72 Mich. 420 ; Mott v. Mott, 49 N. J. Eq. 192 ; Hall v. Knap- peftberger, 97 Mo. 509 ; Stepp v. Framplon, 179 Pa. 284. J Chap. XIV.] THE LAW OF EVIDENCE. 255 CHAPTER XIV. ON PRESUMPTIONS AND ESTOPPELS.* Article 98. presumption of legitimacy. The fact that any person was born during the continu- ance of a valid marriage between his mother and any man, or within such a time after the dissolution thereof and before the celebration of another valid marriage, that his mother's husband could have been his father, is conclusive proof that he is the legitimate child of his mother's husband, unless it can be shown either that his mother and her husband had no access to each other at any time when he could have been be- gotten, 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 improbable that sexual inter- course took place between them when it occurred. 1 * See Note XXXV. [Appendix]. 1 [The presumption of legitimacy, it is said, " can only be rebutted by the most satisfactory and convincing proof that the husband was not the father of the child," or, as a number of the cases express it, " by proof beyond a reasonable doubt " (Gr. Ev. i.§ 28, ii. §§ 150-153 ; Cross v. Cross, 3 Pai. 139 ; Van Aerncuu v. Van At r nam, 1 Barb. Ch. 375 ; Phillips v. Allen, 2 Allen, 453; Egbert v. Greenwalt, 44 Mich. 245 ; Patterson v. Gaines, 6 How. (U. S.) 550 ; Scanlon v. Walshe, 8 Md. 118; State v. Lavin, 80 la. 555 ; Bullock v. Knox, 96 Ala. 195 Grant v. Mitchell, 83 Me. 23 ; Wilson v. Babb, 18 S. Car. 59 ; Scott v. Hillenberg, 85 Va. 245 ; Watts v. Owens, 62 Wis. 512 ; Goss v. Pro- man, 89 Ky. 318 ; Pittsford v. Chittenden, 58 Vt. 49 ; see N. Y. Rev. St. i.642). Legitimacy will be presumed, even in the absence of proof 256 A DIGEST OF [Part III. Neither the mother nor the husband is a competent witness' as to the fact of their having or not having had sexual intercourse with each other, 2 nor arc any declara- tions by them upon that subject deemed to be relevant facts when the legitimacy of the woman's child is in question, 3 whether the mother or her husband can be called as a witness or not, provided that in applications for affiliation orders when proof has been given of the non- access of the husband at any time when his wife's child could have been begotten, the wife may give evidence 4 as to the person by whom it was begotten. 5 Letters that the child's parents were married ; such former marriage will be assumed until contrary proof is given. Matter of Matthews, 153 N. Y. 443-] 1 [Boykin v. Boy kin, 70 N. C. 262 ; People v. Court of Sessions, 45 Hun, 54; Abington v. Dnxbury, 105 Mass. 287; Tioga Co. v. South Creek T'p, 75 Pa. 433 ; Mink v. State, 60 Wis. 583 ; Burnaby v. Baillic, 42 Ch. D. 282. But in cases between third parties husband and wife may testify as to the time of their marriage, the time of a child's birth, and any other independent facts affecting the question of legitimacy. Janes' s Estate, 147 Pa. 527.J ' 2 [Here Mr. Stephen inserts a special statutory qualification of the English law (32 & 33 Vict. c. 68, s. 3), viz., — "unless the proceedings in the course of which the question arises are proceedings instituted in consequence of adultery."] i [Hemmen , way v. Towner, 1 Allen, 209; Shuman v. Shuman, 83 Wis. 250; Dennison v. Page, 29 Pa. 420; Bowles v. Bingham, 2 Munf. 442. But their conduct and declarations, forming part of the res gesta, and thus tending to show what relations they maintained towards each other, their recognition of the child's illegitimacy, etc., may be proved {Aylesford Peerage Case, 11 App. Cas. 1 ; Gossv. Pro/nan, 89 Ky. 318; see Janes' s list, r/e, 147 Pa. 527, 531); and the same has been held as to the declarations of the wife's alleged paramour that the child was his. Burnaby v. Baillie, 42 Ch D. 282 ; but see Grant v. Mitchell, 83 Me. 23; Montgomery v . Montgomery, 3 Barb. Ch. 132 ; Sean/on v. II 'a/she, 81 Md. 118.] 4 [Gr. Ev. i. S, 344; State v. McDowell, 101 N. C. 734; People v. Overseers, etc., 15 Barb. 286; Comm. v. Shepherd, 6 Binn. 283; cf. Cuppy v. State, 24 Ind. 389; Powers v. Wood, 143 Mass. 182.] R. v. Luffe, 8 Ea. 207 ; Cope v. Cope, 1 Mo. & Ro. 272-4 ; Legge v. Chap. XIV.] THE LAW OF EVIDENCE. 257 written by the mother may, as part of the res gestce. be admissible evidence to show illegitimacy, though the mother could not be called as a witness to prove the statements contained in such letters. 1 Article 99. presumption of death from seven years* absence. A person shown not to have been heard of for seven years by those (if any) who if he had been alive would naturally have heard of him, is presumed to be dead, un- less the circumstances of the case are such as to account for his not being heard of without assuming his death ; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it. 2 Edmonds, 25 L. J. Eq. 125, see p. 135 ; P. v. Mansfield, 1 Q. B. 444; Morris v. Dairies, 3 C. & P. 215. See, as an illustration of these principles, Hawes v. Draeger, 23 Ch. D. 173. [These cases are cited by Mr. Stephen as authorities upon this whole Article.] I am not aware of any decision as to the paternity of a child born say six months after the death of one husband, and three months after the mother's marriage to another husband. Amongst common soldiers in India such a question might easily arise. The rule in European regiments is that a widow not remarried within the year (it used to be six months) must leave the regiment : the result was and is that widowhoods are usually very short. [In a recent American case it appeared that a child was born seven months after the mother was divorced from her first husband and four months and twenty-one days after her marriage to a second husband. The child being fully developed at birth was held to be the offspring of the first husband. Shuman v. Hurd, 79 Wis. 656 ; Shuman v. Shuman, 83 Wis. 250 ; cf. Drennan v. Douglas, 102 111. 341.] 1 Aylesford Peerage Case, 11 App. Cas. 1, in which the general rule stated above is considered and affirmed. [See note 3, supra.] '•' McMahon v. McElroy, 5 Ir. Rep. Eq. 1 ; Hopewell v. De Pinna, 2 Camp. 113 ; Nepean v. Doe, 2 S. L. C. 562, 681 ; Nepean v. Knight, 2 M. & W. 894, 912 ; P. v. Lumley, L. R. 1 C. C. R. 196 ; and see the caution of Lord Denman in P. v. Harborne, 2 A. & E. 544. All the cases are 2S8 A DIGEST OF [Part III There is no presumption as to the age at which a per- son 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." collected and considered in In re Pheni's Trust, L. R. 5 Ch. App. 139. The doctrine is also much discussed in Prudential Assurance Com- pany v. Edmonds, 2 App. Cas. 487. The principle is stated to the same effect as in the text in Re Corbishley's Trusts, 14 Ch. D. 846. [Gr. Ev. i. § 41 ; Davie v. Briggs, 97 U. S. 628 ; Johnson v. Merithew, 80 Me. in ; Winship v. Conner, 42 N. H. 341 ; Stochbridge's Case, 145 Mass. 517 ; O'Gara v. Eisenlohr, 38 N. Y. 296 ; Hoyt v. Newbold, 45 N. J. L. 219 ; Cooper v. Cooper, 86 Ind. 75 ; State v. Henke, 58 la. 457 ; Flood v. Growney, 126 Mo. 262; Shriverv. Slate, 65 Md. 278; Uni- versity v. Harrison, 90 N. C. 385 ; Shown v. McMackin, 9 Lea, 601 ; cf. In re Taylor, 20 N. Y. S. 960. Some American cases hold that the absent person, unheard from, is presumed to have lived till the end of the seven years (Excrs. of Clarke v. Canfield, 15 N. J. Eq. 119 ; Mu- tual Ben. Co.' s Petition, 174 Pa. I ; Schaub v. Griffin, 84 Md. 557 ; Reedy v. Nullizen, 155 111. 636); but others support the English rule stated in this Article {Davie v. Briggs, 97 U. S. 628 ; McCartee v. Camel. 1 Barb. Ch. 455 ; Evans v. Stewart, 81 Va. 724 ; Whiteley v. Equita ble Assur. Soc., 72 Wis. 170 ; cf. Corley v. Holloway, 12. S. Car. 380). From special circumstances justifying such a conclusion, thejurl may infer death from an absence of less than seven years ; thus, e.g -, death was inferred after six months in regard to a person who ha-i sailed on a voyage usually taking 25 to 40 days, no tidings of thv vessel having been received. Johnson v. Merithew, 80 Me. m ; ses Waitev. Coaracy, 45 Minn. 159; Matter of Stewart, 1 Connol. 86; Cox v. Ellsworth, 18 Neb. 664 ; Hancock v. A/ner. Life Ins. Co. ,62 Mo. 26. \ 1 Wing v. Angrave, 8 H. L. C. 183, 198 ; and see authorities in lasl note. [Gr. Ev. i. §§ 29, 30 ; Newell v. Nichols, 75 N. Y. 78 ; Russell v Hallett, 23 Kan. 276 ; Cove v. Leach, 8 Met. 371 ; Padcn v. Briscoe, 81 Tex. 563; see Fuller v.Linzee, 135 Mass. 468. The question of survivorship is wholly one of fact, depending upon evidence, and the burden of proof lies upon him who asserts that one person survived the other. In the absence of evidence, property rights are disposed of as if all died at the same time (Id.; Johnson v. Merithew, 80 Me, hi; Elite's Will, 73 Wis. 445). In California and Louisiana there are special legal presumptions as to survivorship, depending on the age and sex of the persons who Chap. XIV.] THE LAW OF EVIDENCE. 259 Article 100. presumption of lost grant. 1 When it has been shown that any person has, for a long period of time, exercised any proprietary right which might have had a lawful origin by grant or license from the Crown or from a private person, and the ex- ercise of which might and naturally would have been prevented by the persons interested if it had not had a lawful origin, there is a presumption that such right had a lawful origin and that it was created by a proper in- strument which has been lost. 2 Illustrations. (a) The question is, whether B is entitled to recover from A the pos- session of lands which A's father and mother successively occupied from 1754 to 1792 or 1793, and which B had occupied (without title) from 1793 to 1809. The lands formed originally an encroachment on the Forest of Dean. The undisturbed occupation for thirty-nine years raises a presump- tion of a grant from the Crown to A's father. 3 perished. Cal. Code Civ. Pro. § 1963, subd. 40 ; Hollister v. Cordero, 76 Cal. 649 ; La. Civ. Code, Art. 938.] 1 The subject of the doctrine of lost grants is much considered in Angus v. Dalton, 3 Q. B. D. 84, 6 App. Cas. 740. [See Lehigh R. Co. v. McFarlan, 43 N. J. L. 605 ; McRoberts v. Bergman, 132 N. Y.73.] ' 2 [Gr. Ev. i. §§ 46, 47 ; Jackson v. McCall, 10 Johns. 377 ; Fletcher v. Fuller, 120 U. S. 534 ; Roe v. Strong, 1 19 N. Y. 316 ; Texas Mex. Ry. Co. v. Uribe, 85 Tex. 386; Carter \. Fishing Co., jj Pa. 310; Oak- smith's Lessee v. Johnston, 92 U. S. 343. It is said in this last case that in this country there can seldom be occasion to presume a grant from the government, except in cases of very ancient possessions running back to colonial days, since, from the beginning of the century, a record has been preserved of all such grants. See Mission of the I. V. v. Cronin, 143 N. Y. 524.] 3 Goodtitle v. Baldwin, 11 Ea. 488. The presumption was rebutted in this case by an express provision of 20 Ch. II. c. 3, avoiding grants of the Forest of Dean. See also Doe d. Devine v. Wilson, 10 Moo. P, C. 502. 260 A DIGEST OF [Part III. (b) A fishing mill dam was erected more than 1 10 years before 1861 in the River Derwent, in Cumberland (not being navigable at that place), and was used for more than sixty yfears before 1861 in the man- ner in which it was used in 1861. This raises a presumption that all the upper proprietors whose rights were injuriously affected by the dam had granted a right to erect it. 1 (e?it of the suit from being witnesses are now almost univer- sally abolished (see N. Y. Code Civ. Pro. § 828 ; U. S. Rev. St. § 858; Mass. Pub. St. c. 169, s. 18 ; and generally the statutes of the different States), though the interest of a witness may still be shown to affect his credibility {Pennsylvania Co. v. Versten, 140 111. 637 ; Will of Smil- ing, 136 N. Y. 515 ; Norwood v. Andrews, 71 Miss. 641). But there is established by statute in the several States one important exception, prohibiting a party or interested person from testifying in an action against an executor or administrator concerning a transaction with the decedent. These statutes differ in details, but their general features may be well illustrated by the law of New York. This provides that, in a civil action or special proceeding, a. party or person interested in the C7'cnt (or a predecessor of such person) shall not be examined as a witness in his own behalf or interest (or in behalf of his successor in interest), against the executor, administrator, or survivor of a deceased person, or the committee of a lunatic (or the successor in interest of such decedent or lunatic), concerning a personal transaction or com- munication between the witness and the decedent or lunatic. Such tes- timony is, however, receivable if the executor, etc., is examined in his own behalf, or if the former testimony of the decedent or lunatic con- cerning the same transaction, etc., is given in evidence (N. Y. Code Civ. Pro. § 829; Rogers v. Rogers, 153 N. Y. 343). The intention of the statute is that the surviving party to the transaction shall not have the unfair advantage of giving his version of the matter when the other party is prevented by death from being heard to contradict or explain Chap. XV.] THE LAW OF EVIDENCE. 271 Article 107. what witnesses are incompetent.' A witness is incompetent if in the opinion of the judge he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollect- ing the matter on which he is to testify, from understand- ing the questions put to him, from giving rational answers it {Card v. Card, 39 N. Y. 317). Thus in an action by an attorney against the executor of a deceased person to recover for legal services rendered to the decedent, the plaintiff cannot be a witness and testify as to advice given by him to the decedent {Prague v. Lord, 67 N. Y. 495); so in proceedings for the probate of a wili, a legatee under the will may not testify as to personal transactions with the testator {Mat- ter of Eysaman, 1 13 N. Y. 62). " Personal transaction or communica- tion" is defined in Heyne v. Doerfler, 124. N. Y. 505, and "interest" in Connelly v. O' Connor, 117 N. Y. 91; see also Eisenlord v. Clum, 126 N. Y. 552. A release of one's interest may make him a competent witness {Matter of Wilson, 103 N. Y. 374). The law of Congress is that in an action by or against an executor, etc., neither party shall testify against the other as to transactions with the decedent, unless called to testify thereto by the opposite party or required to do so by the court (U. S. Rev. St. § 858 ; Potter v. National Bank, 102 U. S. 163). As to the law of other States, see Gr. Ev. i. § 329, 15th ed.; English v. Porter, 63 N. H. 206; Rowland v. Phila. etc. R. Co., 63 Ct. 4r5 ; Woolverton v. Van Syckel, 57 N. J. L. 393 ; Stauffer v. Ins. Ass'n, 164 Pa. 205; Thomas v. Miller, 165 Pa. 216; Webster v. Le Compte, 74 Md. 249 ; Barker v. Hebbard, 81 Mich. 267 ; Williams v. Edwards, 94 Mo. 447. There is a special rule in some States that a party to a negotiable instrument (as an indorser) cannot be a witness to prove that it was invalid in its inception (as for usury) to the prejudice of an innocent holder for value before maturity {Smith v. McGlinchy, 77 Me. 153; Davis v. Brown, 94 U. S. 423 ; John's Admr. v. Pardee, 109 Pa. 545 ; cf. Jones v. Matthews, 8 Lea, 84); but in most States such testimony is admissible. Gr. Ev. i. §§383-385; Haines v. Dennett, 11 N. H. 180; Pecker v. Sawyer, 24 Vt. 459; Williatns v. Walb ridge, 3 Wend. 4I5-] 1 See Note XL. [Appendix]. A witness under sentence of death was said to be incompetent in R. v. Webb., 11 Cox, 133, sed quare. 272 A DIGEST OF [Part III. to those questions, or from knowing that he ought to speak the truth. 1 A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible ; but such writing must be written and such signs made in open court. 3 Evidence so given is deemed to be oral evidence. 3 1 [In the following cases children were deemed competent under this rule and were allowed to testify ( Wheeler v. U. S., 159 U. S. 523 (child five years of age); Comm. v. Robinson, 165 Mass. 426 (five years and nine months); People v. Linzey, 79 Hun, 23 (ten years); Draper v. Draper, 68 111. 17 (ten years); McGuire v. People, 44 Mich. 286 (six years); State v. Juneau, 88 Wis. 180 (five years); State v. Levy, 23 Minn. 104 (eight years); State v. Doyle, 107 Mo. 36 (nine years); State v. Douglas, 53 Kan. 669 (nine years); McGuffv. State, 88 Ala. 147 (seven years); see Illustrations (a) and (b)). In some States, by statute, children may be allowed to testify in special cases without taking an oath (N. Y. Code Cr. Pro., § 392 ; Hughes v. Detroit, etc. R. Co., 65 Mich. 16 ; cf. White v. Comm., 96 Ky. 180). Persons of unsound mind may also testify, if they can appreciate the obligation of an oath and have sufficient understanding to give intelligent and reliable answers. The jury may consider their mental condition as affecting their credibility (Illustration (c); Gr. Ev. i. §365; District 0/ Columbia v. Armes, 107 U. S. 519; People v. N. Y. Hospi- tal, 3 Abb. N. C. 229 ; Livingston v. Kriersted, 10 Johns. 362; Pease v. Burrowes, 86 Me. 153; Kendallx.May, 10 Allen, 59; Holcombx. Hol- comb, 28 Ct. 177 ; Coleman v. Comm., 25 Gratt. 865 ; Tucker v. Shaw, 158 111. 326; Bowdle v. Railway Co., 103 Mich. 272; Cannaday v. Lynch, 27 Minn. 435; Worthington v. Mencer, 96 Ala. 310). The same general rules apply to intoxicated persons. Hartford x. Palmer, 16 Johns. 143; Gould v. Crawford, 2 Pa. 89; cf. State v. Costello, 62 la. 404.] 3 [Gr. Ev. i. § 366 ; Wh. Ev. i. §§ 406, 407 ; Queen v. Halbert, 55 Vt. 224, 57 Vt. 178; Skaggs v. State, 108 Ind. 53; State v. Howard, 118 Mo. 127 ; State v. Weldon, 39 S. Car. 318.] 3 [Persons not believing in the existence of a God who will punish false swearing are also incompetent witnesses by common law [Blair v. Seaver, 26 Pa. 274 ; People v. Matteson, 2 Cow. 433 ; Free v. Buck- ingham, 59 N. H. 219 ; Arnd v. Amling, 53 Md. 192 ; Clinton v. State, 33 O. St. 27 ; Attorney Gen' I v. Bradlaugh, 14 Q. B. D. 667). But this Chap. XV.] THE LAW OF EVIDENCE. 273 Illustrations, (a) [Upon a criminal trial a girl thirteen years old was offered as a witness for the prosecution. The defendant objected to the adminis- tration of an oath to her, on the ground that she was ignorant of the nature and obligation of an oath. The judge asked her some ques- tions, to which she replied that she understood that the oath was to tell the truth, and that she would be punished if she did not tell the truth after taking it, but that she did not know how or by whom she would disqualification has been removed in many States or rendered less stringent (Gr. Ev. i §§ 368-371 ; Wh. Ev. i. §§ 395, 396 ; Percey v. Pow- ers, 51 N. J. L. 432 ; Hronek v. People, 134 111. 139 ; Londenerv. Lich- tenheim, 11 Mo. App. 385 ; People v. Copsey, 71 Cal. 548; Bush v. Comm., 80 Ky. 244). But in some States, where atheism no longer dis- qualifies, it may nevertheless be shown to affect the witness's credit (Stanbro v. Hopkins, 28 Barb. 265 ; Searcy v. Miller, 57 la. 613). It is the general rule, however, that the witness must not himself be exam- ined as to his religious belief (see all the cases ; Dedric v. Hopson, 62 la. 562). Infamous persons, i. e., persons convicted of treason, felony, or the crimen falsi, are also incompetent witnesses at common law in the State of their conviction. The crimen falsi includes, in general, of- fences tending to pervert the administration of justice through false- hood and fraud, as *?.£■., perjury, forgery, bribery of witnesses, etc. (Gr. Ev. i. §§ 372-376; Wh. Ev. i. § 397 ; Schuylkill Co. v. Copley, 67 Pa. 386 ; State v. Randolph, 24 Ct. 363 ; Benton v. Comm., 89 Va. 570 ; Syl- vester v. State, 71 Ala. 17; State v. Mullen, 33 La. Ann. 159). This disability may be removed by a reversal of the judgment or by a full pardon {Boyd v. U. S., 142 U. S. 450 ; Diehl v. Rodgers, 169 Pa. 316; Perkins v. Stevens, 24 Pick. 277 ; Werner v. State, 44 Ark. 122 ; Carr v. State, 19 Tex. App. 635), though, in case of a pardon, it has been held that the conviction may still be shown to affect credibility {Cur- tis v. Cochran, 50 N. H. 242). Conviction of an infamous crime by courts in other States, it is generally held, does not disqualify (Gr. Ev. i. §§ 376-378 ; Logan v. U. S., 144 U. S. 263 ; Sims v. Sims, 75 N. Y. 466 ; cf. Pitner v. State, 23 Tex. App. 366). Now, in most States, under modern statutes, infamy no longer disqualifies, though it may be proved to affect credibility (Wh.Ev.i.§ 397; N.Y. Code Civ. Pro. §832 ; Mass. Pub. St. c. 169, s. 19 ; Quigley v. Turner, 150 Mass. 108 ; Card v. Foot, 57 Ct. 427 ; People v. O 'Neil, 109 N. Y. 251; Matter of Noble, 124 111. 266 ; State v. Loehr, 93 Mo. 103 ; Sutton v. Fox, 55 Wis. 531 ; see Art. 130, post, note). In some States, also, conviction for a non-infamous 274 A DIGEST OF [Part III. be punished. As the district attorney did not care to call her then, the judge said he would postpone the decision of her competency, and she could be instructed if necessary. The next day she was offered again, and it appeared that in the meantime she had been instructed by a Christian minister. She testified that the minister told her that God would punish her if, after taking the oath, she testified what was not true, and that she did not know that before. The judge decided that she was a competent witness and her testimony was properly re- ceived.] ' {b) [A girl nine years old was offered as a witness, and being ques- tioned said that she did not know what the Bible was ; had never been to church but once and that was to her mother's funeral ; did not know what book it was she laid her hand on when sworn ; had heard tell of God, but did not know who it was ; and that, if she swore to a lie, she would be put in jail, but did not know that she would be punished in any other way. It was held that she was not a competent witness.] 2 (c) [Upon a trial for manslaughter for the killing of a lunatic patient in an insane asylum, A, another lunatic patient, was offered as a wit- ness for the prosecution. Officers of the asylum testified that A was under a delusion that he had a number of spirits about him which were continually talking to him, but that they had found him perfectly rational except for this delusion, and that they believed him to be crime may be shown to affect credibility {State v. Watson, 63 Me. 128 ; Comm. v. Ford, 146 Mass. 131 ; People v. Burns, 33 Hun, 296 ; State v. Sailer, 42 Minn. 258), but not in other States {Card v. Foot, $7 Ct. 427 ; Coble v. State, 31 O. St. 100 ; Bartholomew v. People, 104 111. 601 (crim- inal cases); Manners v. McClelland, 74 la. 318; State v. Donelly, 130 Mo. 642). There are a few States, moreover, in which conviction for perjury or subornation of perjury is declared by statute to render a witness incompetent. Gr. Ev. i. § 372, note, 15th ed.] 1 [Comm. v. Lynes, 142 Mass. 577; S. P. Day v. Day, 56 N. H. \\< (ten years old); R. v. Baylis, 4 Cox, 23. But the contrary rule ha; also been asserted, viz., that it is improper to privately instruct a child and thus render it a competent witness. Taylor v. State, 22 Tex. App. 529.] • [Carter v. Stale, 63 Ala. 52 ; similar cases are McKelton v. State, 88 Ala. 181 (thirteen years old); ^Season v. Stale, 72 Ala. 191 (eleven years); Adams v. State, 34 Fla. 185 (five years); Statev. Belton, 24 S. Car. 185 (twelve years); Hoist v. State, 23 Tex. App. 1 (seven years); State v. Michael, 37 W. Va. 565 (five years); Jones v. People, 6 Park. Cr. 126 (nine years).] Chap. XV.] THE LAW OF EVIDENCE. 275 quite capable of giving an account of any transaction that happened before his eyes. A, being then examined, said : " I am fully aware that I have a spirit and twenty thousand of them ; they are not all mine. , . . Those ascend from my stomach to my head and also those in my ears ; the flesh creates spirits by the palpitation of the nerves and the rheumatics ; all are now in my body, and round my head; they speak to me incessantly, — particularly at night ; . . . they are now speaking to me ; they are not separate from me ; but I can't be a spirit, for I am flesh and blood. ... I know what it is to take an oath ; my catechism taught me from my infancy when it is lawful to swear ; it is when God's honor, our own or our neighbor's good, require it. . . . When I swear, I appeal to the Almighty ; it is perjury, the breaking a lawful oath or taking an unlawful one ; he that does it will go to hell for all eternity." He was then sworn, and gave a perfectly connected and rational account of a transaction which he reported himself to have witnessed. It was held on appeal that his testimony was properly received.] ' Article 108.* competency in criminal cases. In criminal cases the accused person and his or her wife or husband, and every person and the wife or hus- band of every person jointly indicted with him and tried at the same time, 2 is incompetent 3 to testify. 4 Provided that in any criminal proceeding against a * See Note XLI. [Appendix]. 1 [R. v. Hill, 2 Den. C. C. 254; see District of Columbia v. Antics, 107 U. S. 519.] 2 Not if they are tried separately ; Winsor v. R., L. R. 1 Q B. 390 ; Re Bradlangh, 15 Cox, 217. [See p. 276, note.] 3 R. v. Payne, L. R. 1 C. C. R. 349, and R. v. Thompson, Id. 377. 4 [The general rules of the common law, stated in this Article, are still in force in the different States, unless abolished or modified by statute (Gr. Ev. i. §§ 330, 334-346, 362 ; Wh. Cr. Ev. §§ 390-402, 427 ; Hilcr v. People, 156 111. 511 ; Holley v. State, 105 Ala. 100 ; Holman v. State, 72 Miss. 108; State v. Pain, 48 La. Ann. 311). But if a co- defendant be discharged from the record, as by the entry of a nolle 276 A DIGEST OF [Part III. husband or wife for any bodily injury or violence inflicted prosequi, or by an acquittal, he may be a witness upon the trial of the others (Gr. Ev. i. § 363; Wh. Cr. Ev. § 445 ; Linsday v. People, 63 N. Y. 143 ; Love v. People, 160 111. 501 ; State v. Walker, 98 Mo. 95) ; so if he be convicted, or plead guilty, but be not yet sentenced {Stale v. .1/. 1 17 Mo. 302 ; Brown v. Co)nm., 86 Va. 935 ; contra, Kehoe v. Comm. 85 Pa. 127), or even after sentence, if he is not thereby rendered 1 famous {State v. Jones, 51 Me. 125) ; so if, though jointly indicted with the others, he is to have a separate trial {Benson v. U. S., 146 U. S. 325 ; Noyes v. State, 41 N. J. L. 418 ; State v. Bogue, 52 Kan. 79 ; Smith v Comm., 90 Ya. 759 ; Allen v. State, 10 O. St. 287 ; cf. State v. Chiagk, 92 Mo. 395 ; People v. Van Alstine, 57 Mich. 69; Adams v. State, 28 Fla. 511; contra, Staup v. Comm., 74 Pa. 458). Husband or wife may testify, by common law, as to assault and battery upon him or her by the other, or an attempt to murder, and the like {People v. Northrup, 50 Barb. 147 ; State v.Pennington, 124 Mo. 388 ; Comm. v. Sapp, 90 Ky. 580 ; Johnson v. State, 94 Ala. 53 ; for a further exception, see page 298, note 2). So if either spouse be a co-defendant with other persons and be discharged from the record, as by a. nolle prosequi, a plea of guilty, etc., the other spouse is a com- petent witness on the trial of the rest {Love v. People, 160 111. 501; State v. Miller, 100 Mo. 606 ; State v. Guest, 100 N. C. 410 ; Woods v. State, 76 Ala. 35 ; Carr v. State, 42 Ark. 204). But it is now provided by the laws of Congress and by the statutes of many States, that the defendant in a criminal case may be a wit- ness in his own behalf, though the qualification is generally added that his failure to testify shall not create any presumption against him; so comment by the prosecuting officer upon such failure to testify is often prohibited by these statutes (Act of Congress, Mar. 16, 1878 ; N. Y. Code Cr. Pro. § 393 ; Mass. Pub. St. c. 169, s. 18, par. 3 ; Wh. Cr. Ev. §§ 428-436; Wilson v. U.S., 149 U. S. 60 ; Comm. v. Scott, 123 Mass. 239; People v. H ayes, 140N. Y. 484; Showalterv. State, 84 Ind. 562 ; Watt v. People, 126 111. 9 ; People v. Sansome, 98 Cal. 235; Yarorough v. Slate, 70 Miss. 593); if, however, defendant docs testify, the jury may consider his interest in the result of the trial as affecting his credibility (Reagan v. U. S., 157 U. S. 301 ; People v. Crowley, 102 N. Y. 234 ; Doyle v. People, 147 111. 394 ; State v. Pratt, 121 Mo. 566). So by the statutes of some States, persons jointly in- dicted may be witnesses for or against each other (People v. Doivling, 84 N. Y. 478 ; Comm. v. Brown, 130 Mass. 279 ; Conway v. State, 1 iS Ind. 482 ; State v. Smith, 86 N. C. 705 ; Kidwell v. Comm., 97 Ky. 538 ; Wh. Cr. Ev. § 445); or the husband or wife of the defendant may be Chap. XV.] THE LAW OF EVIDENCE. 277 upon his or her wife or husband, 1 such wife or husband is competent and compellable to testify. 3 Article 109. [husband and wife in civil cases— cases of adultery.] [In civil cases the lawful husband or wife of a party, or of a person whose interests are directly involved in the suit, is an incompetent witness by the common law. 3 And even after the marriage is dissolved by the death of a witness, except to disclose confidential communications (N. Y. Pen. Code, § 715 ; Me. Rev. St. c. 134, s. 19 ; Md., Laws of 1888, c. 545, s. 3). By some statutes husbands and wives may not testify against each other in criminal cases except for a crime committed by one against the other. Some States hold that not only criminal acts of violence, but also adultery, bigamy, and incest are crimes against the other {State v. Chambers, 87 la. 1; Lord v. State, 17 Neb. 526; cf. Jordan v. State, 142 Ind. 422 ; Dill v. People, 19 Col. 469); but other decisions are to the contrary (Bassett v. U. S., 137 U. S. 496; People v. Quanstrom,^ Mich. 254 ; McLean v. State, 32 Tex. App. 521). Again, in some States each spouse may be for certain purposes a witness, if the other consent {People v. Gordon, 100 Mich. 518; State v. Willis, 119 Mo. 485), or is declared competent, but not compellable, to testify against the other {Comm. v. Moore, 162 Mass. 441 ; State v. McCord, 8 Kan. 232); and there are also other special statutory rules. See the statutes of the different States.] 1 Reeve v. Wood, 5 B. & S. 364. Treason has been also supposed to form an exception. See T. E. s. 1237. 2 [At this point Mr. Stephen adds to this Article certain English statutory qualifications, and also inserts Articles 108 A and 108 B, sum- marizing the provisions of special English statutes, which provide that accused persons, and their husbands or wives, may be witnesses in trials for particular criminal offences. These provisions, as stated by Mr. Stephen, will be found in the Appendix, Note LI I.] 3 [Gr. Ev. i. §§ 334-346; Banister v. Ovit, 64 Vt. 480 ; Johnson v. Fry, 88 Va. 695 ; Craig v. Miller, 133 111. 300 ; Carney v. Gleissner, 58 Wis. 674 ; Joice v. Branson, 73 Mo. 28 ; Leahy v. Leahy, 97 Ky. 59. So a wife cannot testify for or against a co-defendant tried with her husband, where her testimony would concern her husband or affect 278 A DIGEST OF [Part III. either party or by divorce, neither party thereto can testify as to the facts learned through the confidence of the marital relation, but may as to other facts. 1 These rules apply to proceedings instituted in consequence of adultery 2 as well as to other civil cases.] s his interests (Gr. Ev. i. § 335; Cornelius v. ffambay, 150 Pa. 364). But in collateral proceedings, not immediately affecting their mutual interests, the testimony of husband or wife may be received, though tending indirectly to criminate the other. Gr. Ev. i. § 342 ; Keep v. Griggs, 12 111. App. 511; see. post, page 298, note 2.] 1 [French v. Ware, 65 Vt. 338 ; Bigelow v. Sickles, 75 Wis. 427 ; Toovey v. Baxter, 59 Mo. App. 470 ; Lingreen v. ///. Cent. R. Co., 61 111. App. 174 ; Babcock v. Booth, 2 Hill, 181 ; Dickerman v. Graves, 6 Cush. 308; Robb's Appeal, 98 Pa. 501 ; Wottrich v. Freeman, 71 N. Y. 601 ; Bishop, M. D. & S. ii. §§ 1662-1665 ; but see Rea v. Tucker, 51 111. 1 10 ; Hansehnan v. Dovel, 102 Mich. 505 ; Swan v. Housman, 90 Va. 816. The same rule has been applied in criminal cases. U. S. v. Guiteau, 1 Mackey, 498 ; Comm. v. Sapp, 90 Ky. 580 ; cf. Owen v. State, 78 Ala. 425.] 2 [Id. For a special rule in bastardy cases, see Art. 98, ante. The common law rules, stated in this Article, are still in force in the different States, unless changed by statute.] 3 [The original article of Mr. Stephen, stating the present English law, is as follows : "COMPETENCY IN PROCEEDINGS RELATING TO ADULTERY. " In proceedings instituted in consequence of adultery, the parties and their husbands and wives are competent witnesses, provided that no witness in any (such?) proceeding, whether a party to the suit or not, is liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness has already given evidence in the same proceeding in disproof of his or her alleged adultery. 32 & 33 Vict. c. 68, s. 3. (The word 'such' seems to have been omitted accidentally.)" In this country also, by modern statutes, husband and wife are in many States allowed to testify for or against each other in civil actions, but special limitations are sometimes imposed in cases grounded upon adultery. Thus in New York, husband or wife cannot testify against the other in proceedings founded upon an allegation of adultery, except to prove the marriage or disprove the allegation of adultery ; and in an action for criminal conversation plaintiff's wife cannot testify for him, but may for the defendant, except that she Chap. XV.] THE LAW OF EVIDENCE. 279 Article iio. communications during marriage. No husband is compellable to disclose any communica- tion made to him by his wife during the marriage, and no .rife is compellable to disclose any communication made to her by her husband during the marriage. 1 cannot disclose confidential communications between herself and her husband without his consent (Code Civ. Pro. § 831). In other cases they may testify, but neither can disclose confidential communications without the consent of the other, if living (Id. §§ 828, 831). Similar provisions are in force in several other States (Ind. Rev. St. §§ 505, 509 ; 3 How. St. (Mich.) § 7546 ; Wis. Rev. St. § 4072 ; Code of N. C. § 588). In New Jersey husband and wife may testify in civil actions generally, including proceedings for divorce on account of adultery, except as to confidential communications (N. J. Rev. i. p. 378; ii. p. 288; Lippi?icott v . Wikoff, 54 N. J. Eq. 107 ; cf. Br. Purd. Dig. (Pa.) 12th ed. i. p. 817). So in Massachusetts they may testify, except as to private conversations with each other (Pub. St. c. 169, § 18). It is a special provision of some statutes that either spouse, having acted as agent for the other, may testify as to such transactions as agent {Pfeferle v. State, 39 Kan. 128 ; Reno v. Kingsbury, 39 Mo. App. 240; 111. Rev. St. c. 51, s. 5). So the right of either to testify is sometimes made to depend upon the other's consent ( Wolford v. Farnham, 44 Minn. 159; 3 How. St. (Mich.) §7546 ; Cal. Code Civ. Pro. § 1881). The statutes of the different States have many diverse provisions, and should be specially consulted (see Spitz s Appeal, 56 Ct. 184 ; Bitner v. Boone, 128 Pa. 567 ; Reynolds v. Schaffer, 91 Mich. 494 ; Howard 'v. Brower, 37 O. St. 402 ; Wh. Ev. i.§ 431 ; Bishop, M. D. & S. ii.§§ 777- 786). But statutes removing the disability of parties ox persons inter- e ! 93 ; Doherty v. O'Callaghan, 157 Mass. 90 ; /;/ re Austin, 42 Hun, 516; Scott v. Harris, 113 111. 447 ; Thompson v. Ish, 99 Mo. 160, 176; Layman's Will, 40 Minn. 371; Olmstcad v. Webb, 5 A pp. D. C. 38.] 1 Wilson v. Rastall, 4 T. R. 753. As to interpreters, Id. 756. [All attorneys and counselors are included in this country.] - Taylor v. Foster, 2 C. & P. 195 ; Foote v. Hayne, 1 C. & P. 545. Quaere, whether licensed conveyancers are within the rule ? Parke, B., 2 9 o A DIGEST OF [Part III. through whom the corporation has elected to make state- ments.' Illustrations. (a) A, being charged with embezzlement, retains B, a barrister, to defend him. In the course of the proceedings B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the com- mencement of B's employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, is not protected from disclosure in a subsequent action by A against the prosecutor in the original case for malicious prose- cution. 2 in Turquand v. Knight, 7 M. & W. 100, thought not. Special pleaders would seem to be on the same footing. [Gr. Ev. i. § 239. Communi- cations to lawyers' clerks, agents, and interpreters are protected (Sibley v. Waffle, 16 N. Y. 180 ; Jackson v. French, 3 Wend. 337); but statements to an attorney's clerk by one who did not know him to be such, but who did know he was not a lawyer, have been held not privileged (Hawes v. State, 88 Ala. 37); so a law student to whom a communication is made, not being the clerk or agent of the attorney, may be required to testify as to such communication (Barnes v. Har- ris, 7 Cush. 576; Schubkagel x. Dierstcin, 131 Pa. 46; Holman v. Kimball, 22 \'t. 555) ; and so may a person who overhears a client's statements to his lawyer (Hoy v. Morn's, 13 Gray, 519 ; Goddardx. Gardner, 28 Ct. 172 ; People v. Buchanan, 145 N. Y. 1 ; Tyler v. Hall, 106 Mo. 313). A lawyer simply employed to draft deeds or other papers, without giving legal advice, is not generally within the rule of privilege. Todd v. Munson, 53 Ct. 579 ; Childs v. Merrill, 66 Yt. 302 ; Han ion v. Dolierty, 109 Ind. 37; Stall iugs v. Hullum, 79 Tex. 42 i ; Smith v. Long, 106 111. 485; Hatton v. Robinson, 14 Pick. 416; hut see Linthicum v . Remington, 5 Cr. C. C. 546 ; Carter v. West, 93 Ky. 211.] 1 Mayor oj Swansea v. Quirk, 5 C. P. D. 106; nor pursuivants of the Herald's College, Slade v. Tucker, 14 Ch. D. 824 ; [nor a solicitor of patents who is not an attorney at law (Brungger v. Smith, 49 F. K. 1241; nor a person supposed to be a lawyer but who is not one in fact ( Barnes v. Han is, 7 Cush. 576). But in Benedict x. State, 44 O. St. 679, communications to one whose regular business had been for years practising law before justices of the peace were held privileged, though he had not been admitted to the bar.] 3 Brown v. Foster, 1 H. & N. 736. [This case was so decided be- Chap. XV.] THE LAW OF EVIDENCE. 291 (b) If a legal adviser witnesses a deed, he must give evidence as to what happened at the time of its execution. 1 (c) A retains B, an attorney, to prosecute C (whose property he had fraudulently acquired) for murder, and says, " It is not proper for me to appear in the prosecution for fear of its hurting me in the cause coming on between myself and him ; but I do not care if I give ,£10,000 to get him hanged, for then I shall be easy in my title and estate." This communication is not privileged. 2 Article 116. confidential communications with legal advisers. No one can be compelled to disclose to the court any communication between himself and his legal adviser, which his legal adviser could not disclose without his per- mission, although it may have been made before any dis- pute arose as to the matter referred to. 3 cause the fact in question was not information communicated by the client, but knowledge which counsel acquired by his own observation. For a like rule, see Patten v. Moor, 29 N. H. 163 ; Daniel v. Daniel, 39 Pa. 191; Hcbbardx. Haughian, 70 N. Y. 54 ; Comm. v. Bacon, 135 Mass. 521 ; Swaim v. Humphreys, 42 111. App. 370.] 1 Crawconr v. Salter, 18 Ch. D. 34. 2 Annesley v. Anglesea, 17 S. T. 1223-4. 3 Minet v. Morgan, L. R. 8 Ch. App. 361, reviewing all the cases, and adopting the explanation given in Pearse v. Pearse, 1 De G. & S. 18-31, of Radcliffe v. Fursman, 2 Br. P. C. 514. A recent illustration will be found in Mayor of Bristol v. Cox, 26 Ch. D. 678. [This rule ap- plies though parties to actions are now competent witnesses (Hemen- way v. Smith, 28 Vt. 701 ; Barker v. Kuhn, 38 la. 392; Swenk v. People, 20 111. App. in ; Verdelli v. Grays Harbor Co., 115 Cal. 517 ; Duttenhofer v. State, 34 O. St. 91). A party does not waive the privilege by voluntarily becoming a witness in his own behalf (Id.; State M.White, 19 Kan. 445 ; Carnes v. Piatt, 15 Abb. Pr. (N. S.) 337; contra, Inhab. of Woburn v. Henshaw, 101 Mass. 193) ; but it is deemed a waiver, if he voluntarily testifies to confidential communi- cations made by him to his attorney {Oliver v. Pate, 43 Ind. 132 ; cf. State v. Tall, 43 Minn. 273). So where an accomplice turns " State's evidence," he may be compelled to disclose communications to his 2c,* A DIGEST OF [Part III. Illustration. [in an action for the conversion of goods, plaintiff became a wit- ness m his own behalf, and, having given his evidence in chief, he was askea on cross-examination as to statements made by him to his law- yer, on the day the goods were taken, as to trading the goods for a note and as to the validity of the note. Due objection being made, the witness was held not bound to answer the question.] ' Article 117.* CLERGYMEN AND MEDICAL MEN. Medical men 2 and (probably) clergymen maybe com- pelled to disclose communications made to them in pro- fessional confidence. 3 * See Note XLIV. [Appendix], counsel as to the offence charged {Jones v. State, 65 Miss. 179; People v. Gallagher, 75 Mich. 512). But a party to an action cannot be com- pelled to testify as to knowledge, information, or belief, which he de- rived solely from privileged communications made to him by his attorney. Lyell v. Kennedy, L. R. 9 App. Cas. 81.] 1 [fiigler v. Reyher, 43 Ind. 112. So a patient cannot be compelled to disclose communications made by him to his physician which the physician could not disclose. Post v. State, 14 Ind. App. 452 ; see next Article.] 2 Duchess of Kingston s Case, 20 S. T. 572-3. As to clergymen, see Note XLIV. [Appendix]. 8 [This is the general rule of the common law (Gr. Ev. i. § 247). But in a number of the States of this country, a different rule has been established by statute. In New York, e.g., it is provided that a clergyman shall not be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of his religious body ( N T . Y. Code Civ. Pro. § 833 ; see People v. Gates, 13 Wend. 311); and that a person duly authorized to practise physic or surgery shall not be allowed to disclose any in- formation which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity (Code Civ. Pro. § 834 ; see People v. Schuyler, 106 X. Y. 298; People x. Murphy, 101 N. Y. 126; Fisher v. Fisher, 129 N. Y. 654). But this privilege may be waived by the person confessing or by the Chap. XV.] THE LAW OF EVIDENCE. 293 Article 118. production of title-deeds of witness not a party. No witness who is not a party to a suit can be com- pelled to produce his title-deeds to any property, 1 or any patient (Code Civ. Pro. § 836 ; as to what will be deemed a waiver, see Morris v. N. Y. etc. R. Co., 148 N. Y. 88 ; Alberti v. N. Y. etc. R. Co., 118 N. Y. 77 ; McKinney v. Grand St. etc. R. Co., 104 N. Y. 352). This rule as to physicians applies to " information " obtained by them, in attending a patient, by their own observation or the statements of others, as well as to communications frcm the patient himself (Eding- ton v. Life Ins. Co., 67 N. Y. 185 ; Rcnihan v. Dennin, 103 N. Y. 573 ; S. P. Heuston v. Simpson, 1 15 Ind. 62 ; Briesenmeister v. Knights, 81 Mich. 525 ; Gartside v. Conn. Ins. Co., 76 Mo. 446). But it does not prevent a physician from testifying upon a trial for murder as to the condition of the person injured whom he attended before death ensued {Pierson v. People, 79 N. Y. 424 ; People v. Harris, 136 N. Y. 423 ; cf. People v. West, 106 Cal. 8q); nor, in some States, does it exclude the testimony of physicians, in probate proceedings, to show the condition of the decedent as bearing upon his testamentary capacity, his rep- resentatives waiving the privilege (Eraser v. Jennison, 42 Mich. 206; Morris v. Morris, 119 Ind. 341 ; Denning v. Butcher, 91 la. 425; Thompson v. Ish, 99 Mo. 160; N. Y. Code Civ. Pro. §836; contra, In re Flint, 100 Cal. 391). Similar statutes have been passed in Michigan, Wisconsin, Indiana, Iowa, Kansas, Missouri, California, Oregon, etc. See Conn. Ins. Co. v. Union Trust Co., 112 U. S. 250; Gurlcy v. Park, 135 Ind. 440; Ex- celsior Ass'n v. Riddle, 91 Ind. 84 ; Kansas City, etc. R. Co. v. Murray, 55 Kan. 336; People v. Lane, 101 Cal. 513; as to clergymen, see Gillooley v. State, 58 Ind. 182 ; as to modes of waiver in regard to physicians, see Lane v. Boicourt, 128 Ind. 420 ; Penn. Ins. Co. v. // 'ilcr, 100 Ind. 92 ; McConnell v. Osage, 80 la. 293 ; Mellor v. Mo. Pac. R. Co., 105 Mo. 455 ; Carrington v. St. Louis, 89 Mo. 208 ; /// re Mullin, no Cal. 252.] 1 Pickering v. Noyes, 1 B. & C. 263 ; Adams v. Lloyd, 3 H. & N. 351. [It is a rule of chancery practice that a party shall not be compelled to make discovery of his title-deeds when they simply support his own title, but only when they support the title of his adversary; and a simi- lar rule applies to other documents (Story, Eq. Jur. ii. § 1490 ; Thomp- son v. Engle, 4 N. J. Eq. 271 ; Cullison v. Bossom, 1 Md. Ch. 95 ; Adams. 294 A DIGEST OF [Part III. document the production of which might tend to crimi- nate him, or expose him to any penalty or forfeiture; ' but v. Porter, i Cush. 170; Machine Co. v. Batchcldcr, 68 Vt. 431). The same rule has been applied in some States under modern statutes al- lowing the discovery and inspection of documents (Meakings v. Crom- well, 1 Sandf. 698 ; Shoe &* Leather Ass n v. Bailey, 17 J. & Sp. 385 ; Stichterv. Tilhnghast, 43 Hun, 95 ; Lester v. People, 150 111. 408 ; Mass. Pub. St. c. 167, s. 56; Wilson v. Webber, 2 Gray, 558 ; Wetherbee v. Winchester, 128 Mass. 293; N. H. Pub. St. c. 224, s. 14 (ed. 1891); but see Seligman v. Real Est. Trust Co., 20 Abb. N. C. 210; Thebaudv. Hume, 15 N. Y. S. 664; Herbage v. Utica, 109 N. Y. 81). A person not a party to an action may by subpoena duces tecum be re- quired to produce his private papers in evidence that are relevant to the issue, if they do not tend to criminate him or expose him to a pen- alty or forfeiture (Wh. Ev. i.§ 537 ; Burnham v. Morrissey, 14 Gray, 226, 240 ; In re Dunn, 9 Mo. App. 255 ; U. S. v. Tilden, 10 Ben. 566 ; cf. Davenbagh v. M'Kinnie, 5 Cow. 27 (deed); Lane v. Cole, 12 Barb. 680 (docket book); Bonestecl v. Lynde, 8 How. Pr. 226, 352 (party subpeenaed to produce lease and inventory); Wertheim v. Continental R. Co., 15 F. R. 716 (corporate books); Johnson Co. v. North Branch Co., 48 F. R. 191 (drawings containing valuable trade secrets as to a process of manufacture). Liut the court may relieve him from the obligation of giving them in evidence (though he must bring them into court), if this would be prejudicial to his rights and interests ; of this the court is to judge upon inspection (Gr. Ev. i. § 246 ; MiichelVs Case, 12 Abb. Pr. 249, 259 ; In re C Toole, 1 Tucker, 39 ; Bull v. Love land, 10 Pick. 9 ; so now as to a. party, Bonesteelv. Lynde, 8 How. Pr. 226, 233 ; Champlin v. Stoddart, 17 W. D. 76; cf. Pynchon v. Day, 18 111. App. 1 47 ; Moats v. Rymer, 1 8 W. Va. 642 ; Robinson v. Phila. R. Co. , 28 F. R. 340). Trade secrets have been protected from disclosure, when dis- closure was not necessary for the determination of the matter before the court. Dobson v. Graham, 49 F. R. 17; Moxie Co. v. Beach, 35 F. R. 465.] 1 Whitaker v. Izod, 2 Tau. 115. [Byass v. Sullivan, 21 How. Pr. 50 ; Lawson v. Boyden, 160 111. 613 ; Boyle v. Smithman, 146 Pa. 255 ; John- son v. Donaldson, 18 Blatch. 287. The seizure or compulsory produc- tion of a man's private papers, to be used as evidence against him in a prosecution for a crime, penalty, or forfeiture, is prohibited by the U. S. Constitution (Boyd v. U. S., 1 16 U. S. 616 ; cf. Slate v. Grisivold, 67 Ct. 307), and also by State Constitutions (Lester \. People, 150 111. 408; cf. People v. Spiegel, 143 N. Y. 107; State v. Pomeroy, 130 Mo. 489 ; State v. Davis, 108 Mo. 666). In this last case, however, this rule Chap. XV.] THE LAW OF EVIDENCE. 29$ a witness is not entitled to refuse to produce a document in his possession only because its production may expose him to a civil action, 1 or because he has a lien 2 upon it. 3 Article 119. production" of documents which another person, having possession, could refuse to produce. No solicitor, 4 trustee, or mortgagee can be compelled to produce (except for the purpose of identification) docu- ments in his possession as such, which his client, cestui que trust, or mortgagor would be entitled to refuse to pro- duce 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. 5 was held not applicable to physicians' prescriptions, which a State statute required druggists to preserve ; this was because they were deemed, under the statute, to be public, and not private, papers.] 1 Doe v. Date, 3 Q. B. 609, 618. [Wh. Ev. i. § 537 ; Bull v. Loveland, 10 Pick. 9.] 2 Hope v. Liddell, 7 De G. M. & G. 331; Hunter \. Leathley, 10 B. & C. 858 ; Brassington v. Brassington, 1 Sim. & Stu. 455. It has been doubted whether production may not be refused on the ground of a lien as against the party requiring the production. This is suggested in Brassington v. Brassington, and was acted upon by Lord Den- man in Kemp v. King, 2 Mo. & Ro. 437 ; but it seems to be opposed to Hunter v. Leathley, in which a broker who had a lien on a policy for premiums advanced was compelled to produce it in an action against the underwriter by the assured who had created the lien. See Ley v. Barlow (Judgt. of Parke, B.) 1 Ex. 801. [See Morley v. Green, 11 Pai. 240 ; Bull v. Loveland, 10 Pick. 9.] 3 [Mr. Stephen ends Art. 118 as follows: "No bank is compellable to produce the books of such bank, except in the case provided for in Art. 37 (42 & 43 Vict. c. 11)." See Note XLIX., Appendix.] 4 Volant v. Soyer, 13 C. B. 231 ; Phelps v. Prew, 3 E. & B. 431. [Bur- sill v. Tanner, 16 Q. B. D. 1.] 5 Davies v. Waters, 9 M. & W. 608 ; Few v. Guppy, 13 Beav. 454. [Formerly when a party to a suit could not be required to give evi- dence, his legal adviser could likewise not be compelled to produce 296 A DIGEST OF [Part III. Article 120. WITNESS NOT TO BE COMPELLED TO CRIMINATE HIMSELF. No one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tend- in evidence a deed or other document entrusted to him by his client, nor to disclose its contents. Notice to produce might be given him (see Art. 72, ante), and he might be examined as to the existence of the paper, and as to its being in his possession, so as to enable the other party to give secondary evidence of its contents (Gr. Ev. i. § 241 ; Mitchell's Case, 12 Abb. Pr. 249, 258; Coveney v. Tannahill, 1 Hill, 33 ; Durkee v. Leland, 4 Vt. 612 ; Lessee of Rhoades v. Selin, 4 Wash. C. C. 715 ; Stokoe v. St. Paul, etc. R. Co., 40 Minn. 545); and the same rule was applied to the agent of a party, as e. g., an officer of a cor- poration (Bank of Utica v. Hillard, 5 Cow. 419 ; Westcott v. Atlantic Co., 3 Met. 282). In equity, however, it has been the rule that a party might, in some cases, be required to make discovery of his deeds and papers (see p. 293, note 1, ante), and, therefore, that his attorney would, in such cases, be bound to produce them, if they were in the latter's possession ( Wakeman v. Bailey, 3 Barb. Ch. 482). And now that by modern statutes parties may be subpoenaed (see Art. 72, ante), it is in like manner declared that whatever papers a party must produce, his attorney must produce if he has them (Mitchell's Case, supra; An- drews v. Ohio, etc. R. Co., 14 Ind. 169 ; In re IVhitlock, 15 N. Y. Civ. Pro. R. 204 ; Harrisburgh Car Co. v. Sloan, 120 Ind. 156; Steed v. Cruise, 70 Ga. 168 ; cf . Moats v. Rymer, 18 W. Va. 642 ; Hoyt v. Jackson, 3 Dem. 388 ; Prelford's Appeal, 48 Ct. 247); and so an officer of a corporation may be required to produce the corporate books and papers ( Wertheim v. Continental R. Co.,l$ F.R.716; seep. 193, note \,ante). A client can- not combine with his attorney to keep papers from being produced by putting them in the latter's possession (People v. Sheriff, 29 Barb. 622 ; Edison Electric Co. v. U. S. Electric Co., 44 F. R. 294 ; Trustees v. Blount, 70 Ga. 779). But papers which are professional communica- tions are still protected (Mitchell's Case, supra ; Mallory v. Benja- min, 9 How. Pr. 419 ; Hubbcll v.Judd Oil Co., 19 Alb. L. J. 97 ; Arnold v. Chesebrough, 41 F. R. 74 ; Liggett v. Glenn, 51 F. R. 381; Daven- port Co. v. Pa. R. Co., 166 Pa. 480 ; Pearce v. Foster, 15 Q. B. D. 114; and see p. 293, note \,ante). In a criminal case an attorney cannot be compelled by the prosecution to produce papers entrusted to him by Chap. XV.] THE LAW OF EVIDENCE. . 297 ency to expose the witness, 1 (or the wife or husband of his client, to be used as evidence against the client (Comm. v. Moyer, 15 Phila. 397 ; Anonymous, 8 Mass. 370). The agents of a telegraph company are bound to produce telegraphic messages upon a subpcena duces tecum. Ex parte Brown, 72 Mo. 83 ; State v. Litchfield, 58 Me. 267; In ?-e Storror, 63 F. R. 564 ; cf. Ex parte Jaynes, 70 Cal. 638 ; see p. 193, note I, ante.] 1 R. v. Boyes, 1 B. & S. 330 ; followed and approved in Ex parte Rey- nolds, 20 Ch. D. 298, by the Court of Appeal. [Gr. Ev. i.§§ 451-453; Wh. E v -'-§§533-54 r ; N. Y. Code Civ. Pro. §837; People v. Forbes, 143 N.Y. 219 ; Comm. v. Trider, 143 Mass. 180; Eckstein 's Petition, 148 Pa. 509; Temple v. Comm., 75 Va. 892. The rule applies though the testimony of the witness would only tend to criminate him or would only furnish a link in a chain of evidence which might lead to his conviction (Id. ; Illustration (a); State v. Simmons Co., 109 Mo. 118; Stevens v. Slate, 50 Kan. 712 ; Ex parte Boscowitz, 84 Ala. 463). The privilege is that of the witness and not of the party to the suit, and may be waived by the witness (Cloyes v. Thayer, 3 Hill, 564 ; Comm. v. Shaw, 4 Cush. 594 ; State • v. Wetitworth, 65 Me. 234; Chesapeake Club v. State, 63 Md. 446; Samuel v. People, 164 111. 379; State v. Van Winkle, 80 la. 15), and ceases to exist if a criminal prosecution against him is barred by the Statute of Limitations (Wh. Ev. i. § 540 ; Childs v. Merrill, 66 Vt. 302 ; Lamscn v. Boyden, 160 111. 613 ; Mahanke v. Cleland, 76 la. 401 ; cf. Southern Ry. News Co. v. Russell, 91 Ga. 808), or if some statute, requiring criminating evidence to be given in certain cases, affords to the witness, in return, absolute immunity from prosecution (Brown w.Walker, 161 U. S. 591; State w.Nowell, 58 N. H. 314 ; Emery s Case, 107 Mass. 172 ; People v. Forbes, 143 N. Y. 219 ; Ex parte Cohen, 104 Cal. 524); the privilege is not lost, however, if the statute simply pro- vides that the criminating evidence cannot afterwards be used against the witness (Id.; Counselman v. Hitchcock, 142 U. S. 547 ; Kendrick v. Comm., 78 Ya. 490 ; but see People v. Kelley, 24 N. Y. 74 ; Comm. v. Bell, 145 Pa. 374). The privilege is not always to be allowed when claimed, but only when it appears to the court from the nature of the examina- tion that the witness is exposed to danger if he should be compelled to answer ; but this appearing, he need not show how the answer will criminate him (Ex parte Reynolds, 20 Ch. D. 294 ; Youngs v. Youngs, 5 Redf. 505 ; La Fontaine v. Underwriters, 83 N. C. 132 ; see Illus- tration (b); Friess v. N. Y. C. R. Co., 67 Hun, 205 ; La?nb v. Minister, 10 Q. B. D. no). If the witness discloses without objection part of a transaction criminating him, it is the general American rule that he must disclose the whole (Com m. v. Pratt, 126 Mass. 462; People v. Freshour, 55 Cal. 375 ; Coburn v. Odell, 30 N. H. 540 ; State v. Fay, 43 298 A DIGEST OF [Part III. the witness), to any criminal charge, or to any penalty or forfeiture ' which the judge regards as reasonably likely to be preferred or sued for ; * but no one is excused from la. 651 ; State v. Nichols, 29 Minn. 357 ; see Youngs v. Youngs, supra ; Samuel v. People, 164 111. 379), unless the partial disclosure is made under innocent mistake {Mayo v. Mayo, 1 19 Mass. 290). But in Eng- land a partial statement does not forfeit the privilege {R. v. Garbett, 1 Den. C. C. 236 ; S. P. Chesapeake Club v. State, 63 Md. 446). Testi- mony given under compulsion of the court, contrary to the privilege, cannot be used against the witness {Horstman v. Kaufman, 97 Pa. 147 ; see Art. 23, ante). When a defendant, in a criminal trial, voluntarily becomes a witness in his own behalf, it is held in many States that he thereby waives his privilege as to criminating himself and maybe cross-examined upon all facts relevant to the issue (Comm. v. Nichols, 114 Mass. 285 ; State v. Ober, 52 N. H. 459; State v. Witham, 72 Me. 531 ; State v. Grisivold, 67 Ct. 307 ; People v. Tice, 131 N. Y. 65 1 ; Disque v. State, 49 N. J. L. 249 ; Thomas v. State, 103 Ind. 419; State v. Wells, 54 Kan. 161 ; State v. Thomas, 98 N. C. 599; Thomas v. State, 100 Ala. 53 ; see Comm. v. Smith, 163 Mass. 431 ; Este v. Wilshire, 44 O. St. 636). In some States, however, the cross-examination must relate to matters as to which he was examined in chief {People v. Wong Ah Leong, 99 Cal. 440; State v. Graves, 95 Mo. 510 ; see Spies v. Illinois, 123 U. S. 131 ; also, Articles 127 and 129, post). Where a defendant, in a criminal trial, was required to stand up in court to be identified, this was held not to be a violation of the rule that no person shall be required to give evidence against himself in a criminal case. People \. Gardner, 144N. Y. 119; but see Cooper v. State, 86 Ala. 610 ; cf. O'Brien v. State, 125 Ind. 38 ; Williams v. State, 98 Ala. 52 ; Myers v. State, 97 Ga. 99; see p. 177, note, ante.} 1 [See page 294, note 1, ante.] 3 As to husbands and wives, see 1 Hale, P. C. 301 ; R. v. Cliviger, 2 T. R. 263 ; Cartwrightv. Green, 8 Ves. 405 ; R. v. Bathivick, 2 B. & Ad. 639 ; R. v.AH Saints, Worcester, 6 M. & S. 194. These cases show that even under the old law which made the parties and their husbands and wives incompetent witnesses, a wife was not incompetent to prove matter which might tend to criminate her husband. R. v. Cliviger assumes that she was, and was to that extent overruled. As to the later law, see R. v. Halliday, Bell, 257. The cases, however, do not decide that if the wife claimed the privilege of not answering she would be compelled to do so, and to some extent they suggest that she would not. [See State v. Briggs, 9 R. I. 361 ; State v.Bridg- Chap. XV.] THE LAW OF EVIDENCE. 299 answering any question only because the answer may establish or tend to establish that he owes a debt, or is otherwise liable to any civil suit, either at the instance of the Crown or of any other person. 1 Illustrations. (a) [A, testifying before the grand jury in regard to a charge under investigation by them whether certain persons had been guilty of gambling by playing with cards for money, was asked, " Do you know of any person playing at a game of cards for money in this county within eighteen months past ? " He answered, " I do." The foreman then asked him, " Whom did you see playing ? " He refused to answer on the ground that he could not do so without giving evidence against and tending to criminate himself. The court adjudged him guilty of contempt for refusing to answer; but it was held on appeal that he rightfully claimed his privilege ; that, as he himself had played in the game with the persons to whom his first answer related, he could not disclose their names without thereby furnishing a link in a chain of testimony tending to establish his own guilt.] 2 (b) [A was indicted and put on trial for forgery of a promissory note purporting to have been executed by B. The prosecuting attorney called B as a witness, exhibited the note to him and asked him if the name affixed was his signature. He declined to answer because it might criminate himself, and the court excused him from answering. The attorney then asked, " Have you ever seen this note before?" He refused to answer for the same reason; but the court man, 49 Vt. 202 ; Royal Ins. Co. v. Noble, 5 Abb. Pr. (N. S.) 54 ; State v. Wilson, 31 N. J. L. 77 ; Cornelius v. Hambay, 150 Pa. 359 ; State v. Welch, 26 Me. 30 ; Comm. v. Sparks, 7 Allen, 534 ; Keep v. Griggs, 12 111. App. 511 ; State v. Vol 'lander, 57 Minn. 225 ; People v. Langtree, 64 Cal. 256 ; Woods v. Slate, 76 Ala. 35 ; p. 277, note 3, ante.] 1 46 Geo. III. c. 37. See R. v. Scott, 25 L. J. M. C. 128, 7 Cox, 164, and subsequent cases as to bankrupts, and Ex parte Scholfield, 6 Ch. D. 230. Qucere, Is he bound to produce a document criminating himself ? See Webb v. East, 5 Ex. D. 23 & 109. [Gr. Ev. i. § 452 ; N. Y. Code Civ. Pro. § 837 ; In re Kip, 1 Pai. 601; Bull v. Loveland, 10 Pick. 9; Lovvney v. Perham, 20 Me. 235 ; Lees v. U. S., 150 U. S. 476 ; Gadsden v. Woodward, 103 N. Y. 242.] - [Minters v. People, 139 111. 363 ; cf. Wardv. Slate, 2 Mo. 120; Peo- ple v. Forbes, 143 N. Y. 219.] 300 A DIGEST OF [Part III, ruled that he must answer, and he then replied, " Yes." The attorney then asked, " When ? " and he again asserted a like claim of privilege. The court again ruled that he must answer, and he then stated when he saw the note. On appeal it was held that the witness was not entitled to a privilege as respects any of the questions asked, since there was nothing in the circumstances of the case, or in the nature of the questions, to suggest any reasonable apprehension of danger to him from being compelled to answer. The very nature of the offence charged against defendant negatived the idea of the witness's being a party to it, and there was nothing in the character of the evidence sought to be elicited from him that would reasonably suggest any real or appreciable danger that it would or could tend to inculpate him in any other offence.] ' Article 121. corroboration, when required. 8 When the only proof against a person charged with a criminal offence is the evidence of an accomplice, 1 [State v. Thaden, 43 Minn. 253, following the English rule. Some American decisions state the rule in a different form, saying that "the witness may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, or that the answer cannot possibly injure him or tend in any degree to subject him to the peril of prosecution. Where it is not so perfectly evident that the answer called for cannot incriminate as to preclude all reasonable doubt or fair argument, the privilege must be recognized and pro- tected." People v. Forbes, 143 N. Y. 219; Janvrin v. Scamtnon, 29 N. H. 280.] 2 [Mr. Stephen begins this Article with the following special statutory rules of the English law, (adding also another rule, which will be found in the Appendix, Note LI 1 1.) : — " No plaintiff in any action for breach of promise of marriage can recover a verdict, unless his or her testimony is corroborated by some other material evidence in support of such promise (32 & 33 Vict. c. 68 s. 2). The fact that the defendant did not answer letters affirming that he had promised to marry the plaintiff is not such corroboration ( Wiedemann v. Walpole, [1891] 2 Q. B. 534). " No order against any person alleged to be the father of a bastard child can be made by any justices, or confirmed on appeal by any Court of Quarter Session, unless the evidence of the mother of the said bastard child is corroborated in some material particular to the Chap. XV.] THE LAW OF EVIDENCE. 301 uncorroborated in any material particular, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so. 1 satisfaction of the said justices or court respectively (8 & 9 Vict. c. "10, s. 6 ; 35 & 36 Vict. c. 6, s. 4)." Generally in this country the common-law rule applies in these cases and no corroboration is required. It has been so held as to an action for breach of promise of marriage {Giese v. Schultz, 65 Wis. 487 ; cf. Ho m an v. Earle, 53 N. Y. 267), and as to bastardy proceedings {State v. Nichols, 29 Minn. 357 ; State v. McGlothlen, 56 la. 544 ; Olson v. Peterson, 33 Neb. 358 ; People v. Lyon, 83 Hun, 303 ; State v. Tipton, 15 Mont. 74 ; for a special rule in Massachusetts and Connecticut, see Mass. Pub. St. c. 85, s. 16 ; Leonard v. Bolton, 148 Mass. 66 ; Benton v. Starr, 58 Ct. 285). In some analogous cases corroboration is required. Thus in New York and some other States, seduction under promise of marriage is declared to be a crime, but no conviction can be had on the testimony of the female seduced, uncorroborated by other evidence {People v. Kearney, no N. Y. 188; Zabriskie v. State, 43 N. J. L. 640; Rice v. Coinm., 100 Pa. 28 ; State v. McCaskey, 104 Mo. 644 ; State v. Lockerby, 50 Minn. 363 ; State v. Smith, 34 la. 522 ; La Rosae v. State, 132 Ind. 219; Mill's Case, 93 Va. 815); so in some States as to criminal pros- ecutions for abduction, rape, and like offences (N. Y. Pen. Code, § 283; People v. Plath, 100 N. Y. 590 ; State v. Keith, 47 Minn. 559 ; Stale v. Grossheim, 79 la. 75); in a number of the States, however, no corrobo- ration is required in trials for rape {State v. Dusenberry, 112 Mo. 277; State v. Juneau, 88 Wis. 180; State v. Connelly, 57 Minn. 482; Bamett v. State, 83 Ala. 40). So in some States it is a general rule not to grant a divorce upon the uncorroborated testimony of the complainant (Robbins v. Robbins, 100 Mass. 150 ; Mc Shane v. Mc Shane, 45 N. J. Eq. 341 ; Cooper v. Cooper, 88 Cal. 45 ; Lewis v. Lewis, 75 la. 200 ; Rie v. Rie, 34 Ark. 37 ; contra, Flattery v. Flattery, 88 Pa. 27; Sylvis v. Sylvis, 1 1 Col. 319), or upon the uncorroborated confessions of the defendant {Suiiaiierbellv. Summer- bell, 37 N. J. Eq. 603 ; Madge v. Madge, 42 Hun, 524 ; Cal. Civ. Code, § 130; cf. N. Y. Code Civ. Pro. § 1753); so, in actions for divorce, the evidence of prostitutes and private detectives has been held to need corroboration {Moller v. Moller, 115 N. Y. 466 ; McCarthy v. McCar- thy, 143 N. Y. 235 ; McGrailv. McGrail, 48 N. J. Eq. 532). For other cases, in which corroboration is required, see Article 122.] 'i Ph. Ev. 93-101; T. E. ss. 887 891; 3 Russ. Cri. 600-611. [Gr. Ev. 302 A DIGEST OF ^ . [Part III. Article 121 a. claim on estate of deceased person. Claims upon the estates of deceased persons, whether founded upon an allegation of debt or of gift, ought not to be maintained upon the uncorroborated testimony of i- §§ 45. 380-382 ; State v. Woolard, 1 1 1 Mo. 248 ; State v. Patterson, 52 Kan. 335. It is held, however, in many States to be a rule of prac- tice to warn the jury, not a rule of law, and to be discretionary with the court ( Comm. v. Wilson, 152 Mass. 12 ; Comm. v. Bishop, 165 Mass. 148; Collins v. State, 98 111. 584; Cheatham v. State, 67 Miss. 335; State v. Barber, 113 N. C. 711; State v. Kibling, 63 Vt. 636; Itigalls v. State, 48 Wis. 647). Whether such warning be given or not, how- ever, the jury may convict on the uncorroborated testimony of the accomplice, if they are convinced by it beyond a reasonable doubt that the defendant is guilty (Id.; Cox v. Comm., 125 Pa. 94 ; Hoyt v. People, 140 111. 588 ; Ayers v. State, 88 Ind. 275 ; State v. Maney, 54 Ct. 178; People v. Gallagher, 75 Mich. 512; State v. Dana, 59 Vt. 614; Lamb v. State, 40 Neb. 312 ; Campbell v. People, 159 111. 9). Evidence is deemed properly corroborative which tends to connect the accused with the commission of the crime {Comm. v. Holmes, 127 Mass. 424; State v. Maney, 54 Ct. 178 ; State v. Donnelly, 130 Mo. 642 ; Hester v. Comm., 85 Pa. 139; Pobison v. State, 16 Lea, 146); but some cases say that the corroboration must be as to some material part of the accomplice's testimony or as to some material fact {State v. Patterson, 52 Kan. 335 ; Slate v. Dana, 59 Yt. 614 ; U. S. v. Howell, 56 F. R. 20). In a number of the States it is provided by statute that no convic- tion can be had on the testimony of an accomplice, unless there be corroborative evidence tending to connect the defendant with the com- mission of the crime {People v. Elliott, 106 N. Y. 288 ; People v. May- hew, 150 N. Y. 346 ; State v. Van Winkle, 80 la. 15 ; Malachi v. State, 89 Ala. 134 ; State v. J 'aughan, 58 Ark. 353 ; State v.farvis, 18 Or. 360 ; People v. Armstrong, 1 14 Cal. 570). Persons who, as detectives, informers, and the like, engage with criminals in their wrongful designs and acts, with the honest purpose of exposing them and bringing them to justice, are not accomplices, within the above rules, and their testimony does not need corrobora- tion, unless otherwise open to question (Gr. Ev. i. § 382 ; State v. Mc- Kean, 36 la. 343 ; People v. Bolanger, 71 Cal. 17 ; Comm. v. Hollister, 157 Pa. 13 ; State v. Hoxsie, 15 R. I. 1 ; Comm. v. Ingersoll, 145 Mass. Chap. XV.] THE LAW OF EVIDENCE. 303 the claimant, unless circumstances appear or are proved which make the claim antecedently probable, or throw the burden of disproving- it on the representatives of the deceased. Illustrations. (a) A, a widow, swore that her deceased husband gave her plate, etc., in his house, but no circumstances corroborated her allegation. Her claim was rejected. 1 (b) A, a widow, claimed the rectification of a settlement drawn by her husband the night before their marriage, and giving him advan- tages which, as she swore, she did not mean to give him, and were not explained to her by him. Her claim was admitted though un- corroborated. 2 Article 122. number of witnesses. In trials for high treason, or misprision of treason, no one can be indicted, tried, or attainted (unless he pleads guilty) except upon the oath of two lawful witnesses, 231); so persons forced into criminal acts are not accomplices {People v. Miller, 66 Cal. 468 ; cf. U. S. v. Thompson, 31 F. R. 331). Upon the mxx\m falsus in uno,falsus in omnibus, the testimony of a witness who' has wilfully and knowingly sworn falsely as to a material point may be disregarded by the jury unless corroborated {State v. Martin, 124 Mo. 514 ; City of Sandwich v. Dolan, 141 111. 430; People v. Clark, 84 Cal. 573 ; Judge v. Jordan, 81 la. 5 19 ; Cole v. Lake Shore, etc. R. Co., 95 Mich, yj ; Schmitt v. Milwaukee R. Co., 89 Wis. 195 ; Moett v. People, 85 N. Y. 373 ; Lemmon v. Moore, 94 Ind. 40). But it is not a rule of law that they must so disregard it ( Id. ; Comm. v. Billings, 97 Mass. 405; Hoge v. People, 117 111. 35; Hillman v. Schwenk,6& Mich. 293 ; Ala. etc. R. Co. v. Frazier, 93 Ala. 45 ; Bonnie v. Earl I, 12 Mont. 239 ; but see People v. Paulsell, 115 Cal. 6). The rule applies to parties, when they testify, as well as to other witnesses. People v. Petmecky, 99 N. Y. 415 ; Siebert v. People, 143 111. 571.] 1 Finch v. Finch, 23 Ch. D. 267. [See Devlin v. Greenwich Sav. Bk., 125 N. Y. 756 ; Dills v. Stevenson, 17 N. J. Eq. 407 ; Natch v. Atkin- son, 56 Me. 324.] 2 Lovesy v. Smith, 1 5 Ch. D. 655. In re Gartiett, Gandy v. Macaulay, 304 A DIGEST OF [Part III. cither both of them to the same overt act, or one of them to one and another of them to another overt act of the same treason. 1 If two or more distinct treasons of divers heads or kinds are alleged in one indictment, one witness produced to prove one of the said treasons and another witness produced to prove another of the said treasons are not to be deemed to be two witnesses to the same treason a within the meaning of this Article. 3 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, 4 and if no cir- 31 Ch. D. 1, is a similar case. In In re Hodgson, Beckett v. Ramsdale, 31 Ch. D. p. 183, the language of Hannen, J., in words somewhat re- laxes the rule, but not, I think, in substance. [The ground of the decision in Lovesy v. SmitJi was that the husband should have ex- plained to the wife, in the clearest terms, the provision in his favor, and that as the settlement, on its face, was not such as the court would have sanctioned in the absence of agreement, the burden of proof was on the husband's representatives. Cf. Fanner s Excr. v. Farmer, 39 N. J. Eq. 211.] 1 [The law of this country is somewhat different, the U. S. Constitu- tion (Art. 3, s. 3) providing that " no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." A similar provision is found in many of the State Constitutions as to treason against the State. Gr. Ev. i. §255.] 3 7 & 8 Will. III. c. 3, ss. 2, 4. [Gr. Ev. i. § 256.] 3 [At this point Mr. Stephen adds the following special rule of the English law : " This provision does not apply to cases of high treason in compassing or imagining the Queen's death, in which the overt act or overt acts of such treason alleged in the indictment are, assas- sination or killing of the Queen, or any direct attempt against her life, or any direct attempt against her person, whereby her life may be endangered, or her person suffer bodily harm, or to misprision of such treason. 39 & 40 Geo. III. c. 93."] 4 3 Russ. on Crimes, 77-86. [Perjury may be proved by the testi- mony of two witnesses, or by that of one witness supplemented by evidence of corroborating circumstances ; but not by the uncorrobo- rated testimony of one witness (Gr. Ev. i. §§ 257-259 ; Williams v. Chap. XV.] THE LAW OF EVIDENCE. 305 cumstances are proved which corroborate such witness, the defendant is entitled to be acquitted. 1 Comm., 91 Pa. 493 ; People v. Wells, 103 Cal. 631 ; State v. Hawkins, 115 N. C. 712 ; U. S. v. Hall, 44 F. R. 864 ; State v. Jean, 42 La. Ann. 946 ; Thomas v. State, 51 Ark. 138 ; Brookin v. Stale, 27 Tex. App. 701 ; Peo/>le v. Stone, 32 Hun, 41; Stale v. Heed, 57 Mo. 252; Comm. v. Parker, 2 Cush. 212) ; so documentary evidence alone may suffice U> prove perjury {U. S. v. Wood, 14 Pet. 430). But proof that the ac- cused, on two different occasions, swore to contradictory statements is not sufficient. Freeman v. State, 19 Fla. 552 ; U. S. v. Mayer, Deady, 127] 1 [It is a chancery rule that where a bill is so framed as to compel an answer on oath and such answer denies the allegations of the bill, the uncorroborated evidence of one witness in support of the bill will not be sufficient basis for a decree (Gr. Ev. i. § 260 ; Morris v. White, 36 N. J. Eq. 324 ; Jones v. Abraham, 75 Va. 466 ; Smith v. Ewing, 151 Pa. 256; Southern Development Co. v. Silva, 125 U. S. 247; Deimelv. Brown, 136 111. 586 ; cf. Shackelford v. Brown, 72 Miss. 380). But in New York and some other States this rule no longer exists (Stilwell v. Carpenter, 62 N. Y. 639 ; Quertermous v. Taylor, 62 Ark. 598). After some doubt, it is now held that a usage of business may be established by the testimony of one witness. Robinson v. U. S., 13 Wall. 363 ; Bissell v. Campbell. 54 N. Y. 353 ; Jones v. Hoey, 128 Mass. 585 ; Adams v. Pittsburgh Ins. Co., 95 Pa. 348; Woottersv.Kauffman, 67 Tex. 488.] 3 o6 A DIGEST OF [Part III. CHAPTER XVI. OF TAKING ORAL EVIDENCE, AND OF THE EXAMINATION OF WITNESSES. Article 123. evidence to be upon oath, except in certain cases. All oral evidence given in any proceeding must be given upon oath, except as is stated in this and the following Article. 1 Every person objecting to being sworn, and stating, as the ground of such objection, either that he has no religious belief, or that the taking of an oath is contrary to his religious belief, may make his solemn affirmation, which is of the same force and effect as if he had taken the oath, and if, having made such affirmation, he wil- fully and corruptly gives false evidence, he is liable to be punished as for perjury. Such affirmation must be as follows: — " I, A. B., do solemnly, sincerely, and truly declare and affirm," and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness. 2 1 [The "following Article" (Art. 123 a) contains a special statutory rule of the English law. It will be found in the Appendix, Note LIIL] 2 51 & 52 Vict. c. 46, the Oaths Act, 1888, which repeals the previous enactments on the subject. [Provisions similar to those set forth in Chap. XVI.] THE LAW OF EVIDENCE. 307 Where an oath has been duly administered and taken, the fact that the person to whom the same was adminis- tered had, at the time of taking such oath, no religious belief, does not for any purpose affect the validity of such oath. 1 Article 124. form of oaths ; by whom they may be administered. Oaths are binding - which are administered in such form and with such ceremonies as the person sworn declares to be binding. 2 this Article have been generally adopted in this country by statute. Thus it is provided in the U. S. Revised Statutes (s. 1) that "the re- quirement of an 'oath* shall be deemed complied with by making affirmation in judicial form." So in New York, a solemn declaration or affirmation, in the following form, is administered to a person who declares that he has conscientious scruples against taking an oath : "You do solemnly, sincerely, and truly, declare and affirm," etc. (Code Civ. Pro. § 847). Other States have like provisions. Under such laws a wilful false oath or affirmation constitutes perjury. Id. § 851 ; U. S. Rev. St. s. 5392.] 1 51 & 52 Vict. c. 46, s. 3. 2 1 & 2 Vict. c. 105. For the old law, see Omichundv. Barker, I S. L. C. 455. [See Attorney General v. BradlaugJi, 14 Q. B. D. 667. By the regular common-law form, the oath is administered upon the Gospels, the witness kissing the book, the usual formula repeated to him being, " You do swear that," etc. " So help you God." But often, nowadays, the witness, instead of kissing the book, simply raises his hand while taking the oath. But the rule stated in this Article is everywhere accepted [McKinney v. People, 7 111. 540; Green v. State, 7 1 Ga. 487 ; Comm.v. Buzzell, 16 Pick. 153). Thus a Mo- hammedan may be sworn on the Koran, a Brahmin or a Chinaman by the peculiar methods used in their countries, etc. (People v. Jack- son, 3 Park. Cr. 590 ; State v. Chiagk, 92 Mo. 395 ; Central, etc. R. Co. v. Rockafellow, 17 111. 541; Bow v. People, 160 111. 438; New- man v. Newman, 7 N. J. Eq. 26). But if such persons take the usual form of oath without objection, they are liable for perjury, if 308 A DIGEST OF [Part III. Any person to whom an oath is administered, who so desires, may be sworn with uplifted hand in the form and manner usual in Scotland. 1 Every person now or hereafter having - power by law or by consent of parties to hear, receive, and examine evidence, is empowered to administer an oath to all su 1 witnesses as are lawfully called before him. 2 Article 125. how oral evidence may be taken. Oral evidence may be taken 3 (according to the law relating to civil and criminal procedure) — In open court upon a final or preliminary hearing ; 4 they wilfully swear falsely (Gr. Ev. i. § 371; Comm. v. Jarboe, 89 Ky. 143)- In many States, these general rules, more or less modified, are pre- scribed by statute (see N. Y. Code Civ. Pro. §§ 845-851 ; Mass. Pub. St. c. 169, ss. 13-18 ; Me. R. S. c. 82, s. 103 ; 111. R. S. c. 101 ; 2 How. St. (Mich.) ss. 7537-7539). If an oath be administered substantially in the form prescribed by statute, it is valid, and the witness will be guiky of perjury if he wilfully swears falsely. State v. Mazon, 90 N. C. 676 ; State v. Dayton, 23 N. J. L. 49 ; see People v. Cook, 8 N. Y. 67, 84.] 1 51 & 52 Vict. c. 46, s. 5. [See p. 307, note 2, ante.] 2 14 & 15 Vict. c. 99, s. 16. [Similar statutes are generally in force in this country. See U. S. Rev. St. ss. 101, 183, 474, 1778, etc.; N. Y. Code Civ. Pro. § 843 ; Mass. Pub. St. c. 169, ss. 7, 12.] 3 As to civd procedure, see Order xxxvii. to Judicature Act of 1875 I Wilson, pp. 264-7. As to criminal procedure, see 11 & 12 Vict. c. 42, for preliminary procedure, and the rest of this chapter for final hearings. 4 [As to preliminary hearings in criminal cases, there are statutes in force in the several States of this country, providing for an examina- tion before a magistrate into the circumstances of a charge against an accused person, and the prisoner may be examined, as well as witnesses for and against him (Bishop's New Cr. Pro. §§ 225-239 ; N. Y. Code Cr. Pro. §§ 188-221; see Art. 23, ante, and notes). So in civil cases, stat- utes in some States provide for the examination before trial of the Chap. XVI.] THE LAW OF EVIDENCE. 309 Or out of court for future use in court — (a) upon affidavit, (b) under a commission, 1 parties to a cause, or of other persons whose testimony is material and necessary and may otherwise be lost (see N. Y. Code Civ. Pro. §§ 870- 886 ; Mass. Pub. St. c. 167, ss. 49-60); but the examination of a party to an action before trial is not permissible in actions at law in the Federal courts. Ex parte Fisk, 113 U. S. 713.] 1 The law as to commissions to take evidence is as follows : The root of it is 13 Geo. III. c. 63. Section 40 of this Act provides for the issue of a commission to the Supreme Court of Calcutta (which was first es- tablished by that Act) and the corresponding authorities at Madras and Bombay to take evidence in cases of charges of misdemeanor brought against governors, etc., in India in the Court of Queen's Bench, S. 42 applies to parliamentary proceedings, and s. 44 to civil cases in India. These provisions have been extended to all the col- onies by 1 Will. IV. c. 22, and so far as they relate to civil proceedings to the world at large. 3 & 4 Vict. c. 105, gives a similar power to the courts at Dublin. See as to cases in which commissions will not be granted, /;/ re Boyse, Crofton v. Crofton, 20 Ch. D. 760 ; and Berdan v. Greenwood, Id., in note, 764 ; also Langer v. Tate, 24 Ch. D. 322 ; Lawson v. Vacuum Brake Co., 27 Ch. D. 137. [There are statutes in the several States of this country, providing for the issuing of commissions by a court or judge, by which commis- sioners are appointed to take the depositions of witnesses in other States or countries, for use in the particular State issuing the commis- sion. The courts of the foreign jurisdiction will usually aid such com- missioners in obtaining the desired testimony, by compelling witnesses to come before them, etc., either upon principles of comity, or in ac- cordance with their own local statutes making this their duty. An- other mode of obtaining such evidence is by the issuing of " letters rogatory," which are in the form of a letter missive from a domestic to a foreign court, requesting it to procure and return the desired tes- timony, under promise of a like favor when required (Gr. Ev. i. § 320). Sometimes foreign courts will comply with such a request, but will not aid commissioners, and then the use of letters rogatory is necessary ; but the usual practice is to issue a commission. See U. S. Rev. St. ss. 863-876: N. Y. Code Civ. Pro. §§887-920; Mass. Pub. St. c. 169, ss. 23-64 ; 2 How. St. (Mich.) ss. 7433-7447 ; Anonymous, 59 N. Y. 313 ; Stein v. Bowman, 13 Pet. 209; Cortes Co. v. Tannhauser, 18 F. R. 667.] 310 A DIGEST OF [Part III. (c) ' before any officer of the court or any other person or persons, appointed for that purpose by the court or a judge [under due legal authority, or designated by statute, or selected by agreement of the parties.] 2 Oral evidence taken in open court must be taken according to the rules contained in this chapter relating to the examination of witnesses. Oral evidence taken under a commission must be taken in the manner prescribed by the terms of the com- mission. 3 Oral evidence taken under a commission must be taken in the same manner as if it were taken in open court ; 4 but the examiner has no right to decide on the validity of objections taken to particular questions, but must 1 [This paragraph is somewhat changed from the original, and the next one in the original is wholly omitted here, since they relate to the special provisions of English statutes. The original paragraphs will be found in the Appendix, Note LIII.] 2 [Commonly in this country, by the provisions of statutes or of rules of court, persons called variously referees, auditors, commissioners, examiners, etc., may be appointed by a judge or court to take testi- mony and report it for the information of the court ; or such persons may be appointed by the court or selected by the parties to act as judges in hearing and deciding causes (see N. Y. Code Civ. Pro. §§827,1011-1026; Mass. Pub. St. c. 159, s. 51 ; Holmes v. Turner s Falls Co., 150 Mass. 535 ; Howe Machine Co. v. Edwards, 15 Blatch. 402); masters in chancery perform similar duties. So statutes providing for the taking of testimony in special cases may designate by official name the persons before whom it may be taken. N. Y. Code Civ. Pro. § 899 ; U. S. Rev. St. s. 863 ; Laws of N. J. 1893, c. 100.] 3 T. E. s. 491 . [The mode of taking depositions is often prescribed by statute or by rules of court ; it is sometimes provided that such regu- lations shall be annexed to the depositions (see U. S. Rev. St. ss. 863- 868 ; Rules of the Federal Courts ; N. Y. Code Civ. Pro. §§ 900-909). It is a general rule that such regulations must be carefully and pre- cisely followed.] 4 T. E. s. 1283. [See last note.] Chap. XVI.] THE LAW OF EVIDENCE. 311 record the questions, the fact that they were objected to, and the answers given.' If secondary evidence of the contents of any document is not objected to on the taking of a commission, it can- not be objected to afterwards. 2 Oral evidence given on affidavit must be confined to such facts as the witness is able of his own knowledge to prove, 3 except on interlocutory motions, on which state- ments as to his belief and the grounds thereof may be admitted. 4 The costs of every affidavit unnecessarily setting forth matters of hearsay or argumentative mat- 1 [So it is held in New York that a referee appointed to take evi- dence should take all that is offered, and has no power to pass upon objections, such power belonging to the court {Scott v .Williams, 14 Abb. Pr. 70 ; Fox v. Moyer, 54 N. Y. 125). A similar rule is adopted in the equity practice of the Federal courts as to the taking of testi- mony by examiners (Rule 67 of the Equity Rules, U. S. Courts, 144 U. S. 689). And other States have similar practice (Brotherton v. Brotherton, 14 Neb. 186; Estate of Howell, 14 Phila. 329; Elyton Co. v. Denny, 108 Ala. 553 ; cf. Jones v. Keen, 1 1 5 Mass. 170). But referees, etc., who have power to hear and determine issues, may decide upon objections to testimony. Cincinnati v. Cameron, 33 O. St. 336 ; Lath- rop v. Bra?nhall, 64 N. Y. 365 ; N. Y. Code Civ. Pro. § 1018.] 2 Hawksley v. Bradshaw, 5 Q. B. D. 22. [See p. 312, note 2, post.] 3 Judicature Act, 1875, Order xxxvii. 4. 4 [So in New York and some other States, affidavits upon inter- locutory motions may contain statements upon information and belief, but the sources of such information and the grounds of such belief should also be stated, and the reasons why the affidavit of a person having knowledge of the matter cannot be procured should usually ap- pear {Howe Co. v. Pettibone, 74 N. Y. 68 ; Buell v. Van Camp, 1 19 N. Y. 160 ; Bennett v. Edwards, 27 Hun, 352 ; Clement v. Bullens, 159 Mass. 1 93 ; Peebles v. Foote, 83 N. C. 102 ; Mitchell v. Pitts, 61 Ala. 219). But affidavits merely stating belief, or information and belief, have, in many cases, been held insufficient (Hadley v. Watson, 143 Mass. 27; Taylor v. Wright, 121 111. 455; Inglis v. Schreiner, 58 N. J. L. 120; Hackett v. Judge, etc., 36 Mich. 334; Murphy v. Purdy, 13 Minn. 422; Garner v. White, 23 O. St. 192; Thompson v. Higgin- botham, 18 Kan. 42). Ex parte affidavits are evidence on'y when made so by some statute 312 A DIGEST OF [Part III. ter, or copies of or extracts from documents, must be paid by the party filing- them. 1 a When a deposition, or the return to a commission, or an affidavit, or evidence taken before an examiner, is used in any court as evidence of the matter stated therein, the party against whom it is read may object to the reading of anything therein contained on any ground on which he might have objected to its being stated by a {People v. Walsh, 87 N. Y. 481 ; Bookman v. Stegman, 105 N. Y. 621). As to the difference between an affidavit and a deposition, see Stimp- son v. Brooks, 3 Blatch. 456.] 1 [An attorney who draws an affidavit is liable for costs if it contains irrelevant and scandalous matter, which is stricken out on motion. McVey v. Cantrell, 8 Hun, 522 ; cf. Pitcher v. Clark, 2 Wend. 631.] 2 T. E. s. 491. Hutchinson v. Bernard, 2 Mo. & Ro. 1. [It is a general rule in this country that, if opportunity exists for so doing, objections to a deposition in respect to matters of form, or on the ground that it was irregularly or improperly taken, or that fraud was practised, etc., should be raised when the interrogatories are framed, or upon the examination of the witness under the commission, or upon a motion to suppress the deposition ; but objections to the competency of the witness, or to the relevancy or competency of any question or answer, may be made when the deposition is read in evidence ( York Co. v. Central R. Co., 3 Wall. 107; Howard \ . Stillwell, etc. Co., 139 U. S. 199 ; N. Y. Code Civ. Pro. §§ 910, 91 1 ; Newton v. Porter, 69 N. Y. 133 ; Atlantic Ins. Co. v. Fitzpatrick, 2 Gray, 279; Leavitt v. Baker, 82 Me. 26; Pence v. Waugh, 135 Ind. 143; Stowell v. Moore, 89 111. 563; Horseman v. Todhunter, 12 la. 230; Barnum v. Bar/nun, 42 Md. 251). Objections to questions as leading relate to form, and should be taken before the trial (Akers v. Demond, 103 Mass. 318; Hazlewood v. Haninway, 3 T. & C. 787 ; Crowell v. Western Re- serve Bk., 3 O. St. 406; Hill v. Canfield, 63 Pa. y,\ Chambers v. Hunt, 22 N. J. L. 552). Answers in the deposition whicn are not responsive may be objected to on the trial by either party (Lansing v. Coley, 13 Abb. Pr. 272 ; Greenman v. O'Connor, 25 Mich. 30; Kingsbury v. Moses, 45 N. H. 222). And where a party uses a deposition taken by his opponent, he makes it his own, and such opponent has the same right of ob- jection to the questions and answers as if the deposition had been taken by the party offering it (Hatch v. Brown, 63 Me. 410; hi re Chap. XVI.] THE LAW OF EVIDENCE. 313 witness examined in open court, provided that no one is entitled to object to the reading of any answer to any question asked by his own representative on the execu- tion of a commission to take evidence. Article 126.* examination in chief, cross-examination, and re-examination. Witnesses examined in open court must be first exam- ined in chief, then cross-examined, and then re-examined. 1 * See Note XLV. [Appendix]. Smith, 34 Minn. 436 ; see Rucker v. Reid, 36 Kan. 468 ; Little v. Edwards, 69 Md. 499); so he may contradict the witness as if the lat- ter were the witness of the party reading the deposition {Bloomington v. Osterle, 139 111. 120). Though a witness's deposition has been taken, yet if at the time of the trial he is present and is ready and able to testify, his personal testimony is, by the law of many States, deemed preferable, and the deposition is inadmissible {Neilson v. Hartford St. R. Co., 67 Ct. 466 ; Whitfordv. Clark Co., 119 U. S. 522 ; Haywardv. Barron, 38 N. H. 366; contra, Hedges v. Williams, 33 Hun, 546; Scott v. Indianapolis Wagon Works, 48 Ind. 75.] 1 [The court may, in its discretion, order witnesses to withdraw from the court-room, so that they may not hear each other's testimony {Comm. v. Follansbee, 155 Mass. 274 ; People v. Burns, 67 Mich. 537 ; Slate v. Morgan, 35 W. Va. 260). If any witness disobeys the order, this may be observed upon to the jury to affect his credibility, and he is punishable for contempt ; but the court cannot refuse to allow him to be examined, unless his disobedience was by the procurement, con- nivance, or other fault of the party calling him, in which case it may refuse or permit examination ; a party cannot, without fault on his own part, be deprived of the testimony of the witness (Gr. Ev. i. § 432 ; Holder v. U. S., 150 U. S. 91; Parker v. State, 67 Md. 329; State v. Thomas, in Ind. 515 ; State v. Gesell, 124 Mo. 531; State v. Falk, 46 Kan. 498 ; Dickson v. State, 39 O. St. 73 ; Hubbard v. Hubbard, 7 Or. 42 ; People v. Boscovitch, 20 Cal. 436 ; Comm. v. Brown, 90 Va. 671; Rooks v. State, 65 Ga. 330 ; cf. Pergason v. Etcherson, 91 Ga. 785). In like manner, expert witnesses may be required to withdraw, though this is rarely done ( Vance v. State, 56 Ark. 402 ; Leache v. State, 22 3U A DIGEST OF [Part III. Whenever any witness has been examined in ehief, or has been intentionally sworn, 1 or has made a promise and declaration as hereinbefore mentioned for the pur- pose of giving evidence, 2 the opposite party has a right Tex. App. 279). But parties to actions, either civil or criminal, cannot be excluded, even though they are to testify as witnesses {Mcintosh v. Mcintosh, 79 Mich. 198; Schneider v. Haas, 14 Or. 174; Bemheim v.Dibrell, 66 Miss. 199; Garman v. State, id. 196; Richards v. State, 91 Tenn. 723 ; cf. French v. Sale, 63 Miss. 386); nor can the guardian of an infant party (Cottrell v. Cottrell, 81 Ind. 87); nor one having a pecuniary interest in the suit (Simon Gregory Co. v. McMahan, 61 Mo. App. 499). Another method of excluding witnesses is to place them under the charge of an officer of the court, to be kept by him out of the court-room (JLey's Case, 32 Gratt. 946). A party's failure to call a witness whom he might call does not gen- erally raise a presumption that his testimony would be unfavorable to such party, especially if such witness is equally accessible to both par- ties, or his testimony would be simply cumulative (Scovillv. Baldwin, 27 Ct. 316; Bleecker v. Johnston, 69 N. Y. 309 ; State v. Fitzgerald, 68 Vt. 125 ; Coleman v. State, hi Ind. 563 ; Cross v. Lake Shore, etc. R. Co., 69 Mich. 363 ; Kerstner v. Vorweg, 130 Mo. 196 ; Bates v. Mor- ris, 101 Ala. 282). But where the witness's testimony would be of vital importance in the case (as e. g., if he were the only eye-witness of the facts), and, under the special circumstances of the case, the adverse party has no legal right to call him, an unfavorable inference by the jury is warranted (People v. Hovey, 92 N. Y. 554 ; Comm. v. Weber, 167 Pa. 153 ; State v. Rod/nan, 62 la. 456 ; The Fred. M. Laurence, 15 F. R. 635); and the same is true if a party fails to call a material wit- ness who is within his control and whom he would naturally be ex- pected to call to testify in his behalf (Kirby v. Tallmadge, 160 U. S. 379; Comm. v. McCabe, 163 Mass. 98; State v. Hogan, 67 Ct. 581; Kenyon v. Kenyon, 88 Hun, 211; Rice v. Comm., 102 Pa. 408 ; People v. Germaine, 101 Mich. 485 ; cf. Graves v. U. S., 150 U. S. 118 ; People v. Sharp, 107 N. Y. 427, 465); so if a party fails to testify himself as to vital facts peculiarly within his own knowledge. Cole v. Lake Shore, etc. R. Co., Si Mich. 156.] 1 See cases in T. E. s. 1238. 2 [See Art. 123. As forms of affirmation different from the English are allowed in this country, this clause will need variation to adapt it to the local State law J Chap. XVI.] THE LAW OF EVIDENCE. 315 to cross-examine him; 1 but the opposite party is not enti- tled to cross-examine merely because a witness has been called to produce a document on a subpcena duces tecum, or in order to be identified. 2 After the cross-examination is- concluded, the party who called the witness has a right to re-examine him. The court may in all cases permit a witness to be recalled either for further examination in chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and further re-examination respectively. 3 If a witness dies, or becomes incapable of being further 1 [In a few States of this country, a similar rule prevails, and a wit- ness called to testify merely as to the formal execution of a written instrument, or as to other preliminary matter, etc., may be 'cross- examined as to all matters material to the issue {Blackington v. John- son, 126 Mass. 21; Beat v. Nichols, 2 Gray, 262 ; Diel v. Stegner, 56 Mo. App. 535 (in civil cases); Hemmingerv. Western Assurance Co.,q$ Mich. 355 ; Huntsville, etc. R. Co. v. Corp-ening, 97 Ala. 681; Perry v. Mulligan, 58 Ga. 479, 482 ; King v. Atkins, 33 La. Ann. 1057 (in civil cases); Kiblerv. Mclhvain, 16 S. Car. 550). But in most States the rule is adopted that the cross-examination must be limited to mat- ters stated upon the direct examination. See next Article and note 1 on p. 317; Gr. Ev. i.§§ 445-447; Wh. Ev. i. § 529.] 2 [See note to 15 F. R. 726; Ailcinv. Martin, 11 Pai. 499. The simple verification of a signature by a witness does not entitle the adverse party to see the document or to cross-examine the witness upon it, until it is offered in evidence. Stiles v. Allen, 5 Allen, 320; Calderon v. O 'Donahue, 47 F. R. 39 ; Arnold v. Chesebrough, 30 F. R. 145] 3 [Shepard v. Potter, 4 Hill, 202; Williams v. Sargeant, 46 N. Y. 481 ; Continental Ins. Co. v. Delpeuch, 82 Pa. 225 ; Comm. v. McGorty, 114 Mass. 299 ; Faust v. U. S., 163 U. S. 452 ; Brown v. State, 72 Md. 468 ; Osborne v. O' Reilly, 34 N. J. Eq. 60; State v. Johnson, 89 la. t ; Re a v. Wood, 105 CaL.314 ; Cummings v. Taylor, 24 Minn. 429. It is a general rule that the order of proof is in the discretion of the trial court. Plainer v. Plainer, 78 N. Y. 90 ; Hess v. Wilcox, 58 la. 380 ; Thiede v. Utah, 159 U. S. 510; State v. Murphy, 118 Mo. I.] 316 A DIGEST OF [Part III examined at any stage of his examination, the evidence given before he became incapable is good. 1 If in the course of a trial a witness who was supposed to be competent appears to be incompetent, his evidence may be withdrawn from .the jury, and the case may be left to their decision independently of it. 2 1 R. v. Doolin, i Jebb, C. C. 123. The judges compared the case to that of a dying declaration, which is admitted though there can be no cross-examination. [By the weight of authority in this country, if the ieath of a witness in a common-law action precludes his cross- examination, his testimony given on the direct examination is not ad- mitted {People v. Cole, 43 N. Y. 508 ; S. C. 2 Lans. 370 ; Pr ingle v. Pringle, 59 Pa. 281 ; Sperry v. Moore's Estate, 42 Mich. 353 ; see Curtice v. West, 50 Hun, 47; cf. People v. Severance, 67 Hun, 182; Lewis v. Eagle Ins. Co., 10 Gray, 508), unless the party having the right to cross-examine him had the opportunity of doing so before death occurred and did not choose to exercise it {Bradley v. Minck, 91 N. Y. 293; Celluloid Mfg. Co. v. Arlington Mfg. Co., 47 F. R. 4). Where, however, the witness's testimony is substantially complete, though the examination was not wholly finished, it will be received {Fuller v. Rice, 4 Gray, 343). Where the opportunity to cross-examine is lost by the misconduct of the witness, or through the fault of the party introducing him, or other like cause, his evidence in chief is rejected {Hewlett v. Wood, 67 N. Y. 394 ; Matthews v. Matthews, 53 Hun, 244 ; The facob Brandow, 33 F. R. 160). The English rule, as stated by Mr. Stephen, has been said by some American decisions to be applicable in equity cases (Gr. Ev. i. § 554 ; Gass v. Stinson, 3 Sumn. 98 ; Scott v. McCann, 76 Md. 47); and there is some judicial expression in favor of applying it also to common-law actions {Forrest v. Kissam,'] Hill, 463 ; see Sturm v. Atlantic Ins. Co., 63 X. Y. jj, 87 ; the N. Y. cases contain contradictory expressions). As to the effect of cross-examination being lost by the death of a party, see Hay's Appeal, 91 Pa. 265 ; Comins v. Hetfeld, 12 Hun, 375, 80 N. Y. 261.] 2 R. v. Whitehead, L. R. 1 C. C. R. 33. [Wh. Ev. i. § 393 \ Gr. Ev. i. §§ 421, 422 ; Lester v. McDowell, 18 Pa. 91 ; Stale v. Damery, 48 Me. 327; Shurtleffv.Willard, 19 Pick. 202; Seeley v. Engcll, 13 N. Y. 542 ; Loveridge v. Hill, 96 N. Y. 222. But if the incompetency of the witness is known when he is called and sworn, objection should be made then, or it will ordinarily be deemed to be waived {Hen son v. U. S., 1 \6 I ". S. 325 ; Monfort v. Rowland, 38 X. J. Eq. 181 ; Quin v. Chap. XVI.] THE LAW OF EVIDENCE. 317 .Article 127. to what matters cross-examination and re-examination must be directed. The examination and cross-examination must relate to facts in issue or relevant or deemed to be relevant thereto, but the cross-examination need not be confined to the facts to which the witness testified on his exami- nation in chief. 1 Lloyd, 41 N. Y. 349; Donelson v. Taylor, 8 Pick. 390; Watson v. Riskamire, 45 la. 231; Atchison, etc. R. Co. v. Stanford, 12 Kan. 354 ; Hickman v. Green, 123 Mo. 165; Dickinson v. Buskie, 59 Wis. 136; Smith v. Profitt, 82 Va. 832). So incompetent or improper evidence may be stricken out or with- drawn from the jury after it has been admitted. Stokes v \ Johnson, 57 N. Y. 673 ; Wilson v. Kings Co., 1 14 N. Y. 487 ; Beandette v. Gagne, 87 Me. 534; Spec/it v. Howard, 16 Wall. 564; Selkirk v. Cobb, 13 Gray, 313.] 1 [See p. 315, note 1, ante. But it is the rule in most of the States of this country that the cross-examination must be limited to the matters stated in the examination in chief ; if the party cross-examining in- quires as to new matter, he makes the witness so far his own {Houghton x. Jones, 1 Wall. 702 ; People v. Oyer &* Term. Court, 83 N. Y. 436; Carey v. Hart, 63 Vt. 424; State v. Smith, 49 Ct. 376; Donnelly v. State, 26 N. J. L. 463 & 601 ; Sullivan v. Railroad Co., 175 Pa. 361 ; Hunsinger v. Hofer, 110 Ind. 390 ; Rigdou v. Conlcy, 141 111. 565 ; Martin v. Capital Ins. Co., 85 la. 643 ; Richards v. State, 82 Wis. 172; Hurlbut v. Hull, 39 Neb. 892; People v. Van Eiuan, ill Cal. 144 ; Miller x. Miller s Admr., 92 Va. 510; Williams v. State, 32 Fla. 315 ; Austin v. State, 14 Ark. 555 ; State v. Wright, 40 La. Ann. 589 (in criminal cases) ; as to the range of inquiry which this rule permits, see Rohan v.Avoca Borough, 154 Pa. 404; Boyle v. State, 105 Ind. 469; Erie, etc. Dispatch v. Stanley, 123 111. 158; Glenn v. Gleason, 61 la. 28 ; Birdseye v. Butterfield, 34 Wis. 52). The same rule applies to parties to actions, when they become witnesses {Boyd v. Conshohocken Mills, 149 Pa. 363; Hansen v. Miller, 145 111. 538; but see Scliultz v. Chicago, etc. R. Co., 67 Wis. 616). Some States have special statutes applying the rule to defendants as witnesses in criminal cases {State v. Avery, 1 1 3 Mo. 475 ; People v. Wong Ah Leong, 99 Cal. 440; cf. Slate v. Saunders, 14 Or. 300; see p. 298, note, ante). It 318 A DIGEST OF [Part III. The re-cxamination 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. 1 the bounds authorized by law for cross-examination are not exceeded, the witness is deemed to be continually that of the party introducing him, and the testimony which he gives, both upon the direct and the cross-examination, is treated as evidence given in behalf of such party {Turnbull v. Richardson, 69 Mich. 400 ; Davis v. California Powder Works, 84 Cal. 617 ; and see cases supra). This rule does not limit cross-examination of the kind described in Art. 129. The rule there stated is commonly accepted doctrine. See Rangley v. Wadsworth, 99 N. Y. 61.] 1 [Gr. Ev. i. § 467 ; Gilbert v. Sage, 5 Lans. 287, 57 N. Y. 639 ; U. S. v. 18 Barrels, etc., 8 Blatch. 475 ; Somerville, etc. R. Co. v. Doughty, 22 N. J. L. 495 ; Farrellv. Boston, 161 Mass. 106 ; McElheny v. Pitts- burgh, etc. R. Co., 147 Pa. 1 ; Slonerv. Devilbiss, 70 Md. 144 ; Nor- wegian Plow Co. v. Hanthom, 71 Wis. 529. The general rule that the re-examination must relate to matters developed on the cross- examination is usually adhered to in practice, but still it is generally held that the trial court may, in its discretion, allow the re-examina- tion to extend to other matters {Kendall v. Weaver, 1 Allen, 277 ; Clark v. Vorce, 15 Wend. 193; Springfield v. Dalby, 139 111. 34; Blake v. Stump, 73 Md. 160 ; Schaser v. State, 36 Wis. 429 ; see People v. Buchana/i, 145 N. Y. 1; Hemmcns v. Bentley, 32 Mich. 89). If part of a conversation or transaction be developed on the direct or cross- examination, the other party may, on the cross or re-direct, bring out such other parts of the same conversation or transaction as explain or qualify the portion already testified to, but he may not give evidence of distinct and independent statements or matters {People v. Beach, 87 N. Y. 508 ; Nay v. Curley, 113 N. Y. 575 ; Ballew v. U. S., 160 U. S. 187, 193 ; Dole v. Wooldredge, 142 Mass. 161 ; Scott v. People, 141 111. 195 ; Walsh v. Porterfield, 87 Pa. 376 ; Oakland Ice Co. v. Maxcy, 74 Me. 294). In some States it is held that if one party, without objection, in- troduces irrelevant evidence which is prejudicial to the other party, the latter may give evidence (even if this be also irrelevant) which goes directly to contradict it (State v. Withom, 72 Me. 531 ; Mowry v. Smith, 9 Allen, 67 ; Furbush v. Goodwin, 25 N. H. 425 ; Perry v. Moore, 66 Vt. 519 ; Budd v. Meriden A'lec. R. Co., 69 Ct. 272 ; Mobile, Chap. XVI.] THE LAW OF EVIDENCE. 319 Article 128. leading questions. Questions suggesting - the answer which the person putting the question wishes or expects to receive, or suggesting disputed facts as to which the witness is to testify, must not, if objected to by the adverse party, be asked in examination in chief, or in re-examination, except with the permission of the court, but such ques- tions may be asked in cross-examination. 1 etc. R. Co. v. Ladd, 92 Ala. 287 ; cf. Perkins v.Hayward, 124 Ind. 449 ; Milbank v. Jones, 141 N. Y. 340 ; Gorsuch v. Rutledge, 70 Md. 272). The party who opens a case must, in general, introduce all the evi- dence to prove his side of the case before he closes ; then after his adversary's evidence is given, he may give proof in reply or rebuttal. But it is in the discretion of the court to permit evidence to be given in reply which should properly have been given in chief. Marshall v. Davies, 78 N. Y. 414 ; Young v. Edwards, 72 Pa. 257 ; Watkins v. Rist, 68 Vt. 486; McGowan v. Chicago, etc. R. Co., 91 Wis. 147; Huntsman v. Nichols, 116 Mass. 521; Belden v. Allen, 61 Ct. 173; Goldsby v. U. S., 160 U. S. 70 ; City of Sandwich v. Dolan, 141 111. 430 ; People v. Cox, 70 Mich. 247 ; Lurssen v. Lloyd, 76 Md. 360; Tierney v. Spiva, 76 Mo. 279 ; Graham v. Davis, 4 O. St. 362.] 1 [Gr. Ev. i. §§ 434, 435, 445 ; Wh. Ev. i. §§ 499-504. But such ques- tions may be allowed to be put on the direct examination when the witness appears hostile to the party introducing him {McBride v. Wallace, 62 Mich. 451; Bradshaw v. Combs, 102 111. 428; Whitman v.Morey,63 N. H. 448; State v. Benner, 64 Me. 267; St. Clair v. U. S., 154 U. S. 150); or when the examination relates to items, dates, or numerous details, where -the memory ordinarily needs suggestion {Hucki7is v. People's Ins. Co., 31 N. H. 238; Graves v. Merchants' Ins. Co., 82 la. 637) ; or when it is necessary to direct the witness's atten- tion plainly to the .subject-matter of his testimony, etc. {People v. Mather, 4 Wend. 229 ; Union Pac. R. Co. v. O'Brien, 49 F. R. 538 ; Farmers' Ins. Co. v. Bair, 87 Pa. 124). It is discretionary with the trial court whether such questions shall be permitted and judgment will not be reversed for permitting them, unless there be a plain abuse of discretion ( Vrooman v. Griffiths, 1 Keyes, 53 ; Northern Pac. R. Co. v. Urlin, 158 U. S. 271; Sadder v. Keefer, 91 Mich. 611; Goudy v 32o A DIGEST OF [Part 111. Article 129.* questions lawful in cross-examination. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend — (1) To test his accuracy, veracity, or credibility ;'. or (2) To shake his credit, by injuring his character. Witnesses have been compelled to answer such ques- tions, though the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness; but it is submitted that the court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not in the opinion of the court affect the credibility of the witness as to the matter to which he is required to testify. 2 * See Note XL VI. [Appendix]. Werbe, 117 Ind. 154 ; Crean v. Hourigan, 158 111. 301 ; York v. Pease, 2 Gray, 282). Leading questions are legitimate on cross-examination {U. S.v. Dickinson, 2 McL. 325 ; Helfrich v. Stein, 17 Pa. 143). A leading question is one which suggests to the witness, and leads him to make, the answer desired {People v. Mather, supra; Coogler v. Rhodes, 38 Fla. 240 ; Harvey v. Osborn, 55 Ind. 535 ; People v. Parish, 4 Den. 153). In those States where a party by cross-examining a witness as to new matter makes the witness so far his own (see p. 317, note 1, ante), he has no legal right to ask leading questions as to such new matter. People v. Oyer &* Term. Court, 83 N. Y. 436 ; Harrison v. Rowan, 3 Wash. C. C. 580.] 1 [State v. Duffy, 57 Ct. 525 ; Tudor Iron Works v. Weber, 129 111. 535; Wallace x. Wallace, 62 la. 651; McFadden v. Santa Anna, etc. R. Co., 87 Cal. 464 ; Unlade v. Chicago, etc. R. Co., 67 Wis. 108.] "{Mailer v. St. Louis Hospital Ass'n, 5 Mo. App. 390, 73 Mo. 242 ; Carroll v. Stale, 32 Tex. App. 431. It is a well-settled doctrine in this country that a witness may be cross-examined as to specific facts tend- ing to disgrace or degrade him, for the purpose of impairing his credi- bility, though these facts are purely irrelevant and collateral to the Chap. XVI.] THE LAW OF EVIDENCE. 321 In the case provided for in Article 120, a witness cannot be compelled to answer such a question. Illustrations. (a) The question was, whether A committed perjury in swearing that he was R. T. B deposed that he made tattoo-marks on the arm of R. T., which at the time of the trial were not and never had been on the arm of A. B was asked and was compelled to answer the question main issue ; also that the extent to which such questions may be allowed is to be determined by the discretion of the trial court, which commits no error unless it abuses its discretion ; that the witness may claim the privilege of declining to answer, when the court allows such questions, but that when answers are called for which are material to the issue, there is no privilege (Great Western Turnpike Co. v. Loomis, 32 N. Y. 127 ; People v. Oyer &* Terminer Ct., 83 N. Y. 436 ; Huoncker v. Merkey, 102 Pa. 462; Gutterson v. Morse, 58 N. H. 165 ; Storm v. U. S., 94 U. S. 76 ; Smith v. State, 64 Md. 25 ; State v. Hack, 118 Mo. 92 ; Helwig v. Lascowski, 82 Mich. 619 ; Fries v. Brugler, 12 N.J. L. 79 ; Shelby v. Clagett, 46 O. St. 549 ; State v. Pfefferle, 36 Kan. 90 ; State v. Row, 81 la. 138 ; South Bendy. Hardy, 98 Ind. 577, fully dis- cussing the subject ; but in California and Massachusetts irrelevant questions to affect credibility are not permitted, Barkley v. Copeland, 86 Cal. 483 ; Comm. v. Schaffner, 146 Mass. 512). The exercise of dis- cretion is also limited by the rule that the examination as to collateral facts should be such in its nature as to affect the witness's credibil- ity (Id.; Langley v. Wadsworth, 99 N. Y. 61; People v. Williams, 93 Mich. 625 ; Hayward v. People, 96 111. 492 ; State v. Gleim, 17 Mont. 17). In New York it is held that questions as to his having been ac- cused, indicted, arrested, etc., for wrongful acts are, when properly excepted to, improper, since these facts are consistent with innocence, and, therefore, do not in reality affect credibility (People v. Crapo, 76 N. Y. 288; Van Bokkelen v. Berdelle, 130 N. Y. 141; so in Arkansas, Bates v. State, 60 Ark. 450 ; cf. Kitteringham v. Dance, 58 la. 566). In a number of the States, however, such questions are held permissible, subject to the discretion of the court (see Illustration (d)\ People v. Foote, 93 Mich. 38 ; State v. Taylor, 1 18 Mo. 153 ; Burdette v. Comm., 93 Ky. 76; Hillv. State, 91 Tenn. 521; State v. Murphy, 45 La. Ann. 958 ; cf. State v. Bacon, 13 Or. 143 ; Hill v. State, \2 Neb. 503 ; Sexton v. State, 33 Tex. App. 416). These general rules apply also to parties to actions (including defendants in criminal cases), when they become witnesses (Sullivan v. O'Leary, 146 Mass. 322 ; People v. Webster, 139 322 A DIGEST OF [Part III. whether, many years after the alleged tattooing, and many years be- fore the occasion on which he was examined, he committed adultery with the wife of one of his friends.' (/') [On the trial of A for stealing a horse, a witness B was asked on cross-examination whether he did not live with a woman who kept a house of ill-fame. The court against objection admitted the question, but informed the witness that he could answer or not as he chose.] 2 (c) [Upon the trial of A for an assault, he became himself a witness and was asked on cross-examination whether he had not committed an assault upon another person at another time. This was objected to, but was held on appeal, to have been properly allowed by the trial court within its discretion.] 8 (d) [Upon the trial of A for murder, he became himself a witness and was asked on cross-examination whether he had not once been arrested for an assault with intent to kill. The court against objection admitted the question, and the witness then answered without claim- ing his privilege. This was held a proper exercise of the court's dis- cretion.] 4 ( Alexander v. Kaiser, 149 Mass. 321 ; People v. Hillhouse, 80 Mich. 580 ; Swanson v. French, 92 la. 195 ; Buckley v. Silverberg, 113 Cal. 673 ; Hester v. Conim., 85 Pa. 139; Sloan v. Edwards, 61 Aid. 89; Moore v. People, 108 111. 484; State v. Benner, 64 Me. 267 ; see Illustrations (a) and (b).] Chap. XVI.] THE LAW OF EVIDENCE. 325 does not admit it, or refuses to answer, evidence may be given of his previous conviction thereof. 1 (2) If a witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted. 2 1 28 & 29 Vict. c. 18, s. 6. [At common law, conviction for crime must be proved by the record thereof, or by a duly authenticated copy, (these being the best evidence), and not by cross-examination (Gr. Ev. i. §§ 375, 457 ; Newcomb v. Griswold, 24 N. Y. 298). And now that, as has been seen (see p. 273, note, ante), it is the rule in this country in most States that conviction for crime no longer disqualifies a wit- ness but may be proved to affect his credibility, proof of conviction must still, in some of these States, be made by the record or a copy thereof (Mass. Pub. St. c. 169, s. 19; Comm. v. Gorham, 99 Mass. 420; Pub. St. N. H. c. 224, s. 26 (ed. 1891); Simons v. People, 150 111. 66 (criminal cases); State v. Brent, 100 Mo. 531 ; Boyd v. State, 94 Tenn. 505 ; Murphy v. State, 108 Ala. 10 ; cf. People v. Schenick, 65 Cal. 625); in most of these States, however, either the record (or a copy) may be used, or the witness may be cross-examined as to his conviction (111. Rev. St. c. 51, s. 1 (civil cases); Neb. Code Civ. Pro. § 338 ; State v. Elwood, 17 R. I. 763 ; Spiegel v. Hays, 1 18 N. Y. 660 ; Stale v. O'Brien, 81 la. 93 ; State v. Saner, 42 Minn. 258 ; State v/Probasco, 46 Kan. 310 ; State v. Bacon, 13 Or. 143 ; People v. Crowley, 100 Cal. 478 ; Burdette v. Cowm.,g5 Ky. 76; Driscoll \. People, 47 Mich. 413); and in some of these latter States, if he denies that he was convicted, his answer may be contradicted (N. Y. Code Civ.Pr. § 832 ; N. J. Rev. p. 378, § 1, p. 379 § 9; Wis. Rev. St. s. 4073 ; St. of Minn. s. 6841 (ed. 1894) ; Helwig v. Lascowski, 82 Mich. 619). These general rules apply to parties to actions (including defendants in criminal cases), when they become witnesses. People v. Noelke, 94 N. Y. 137 ; Bartholomew v. People, 104 111. 601; State v. Pfefferle, 36 Kan. 90; State v. Minor, 117 Mo. 302 ; State v. McGuire, 15 R. I. 23.; and cases supra.} 2 A. G. v. Hitchcock, 1 Ex. 91, pp. 100, 105. [It is a well-settled rule that if a witness be cross-examined for the purpose of showing his interest in the case, or his bias, favor, hostility, prejudice, etc., towards either party (see p. 322, note, ante), and answers by a denial, he may be contradicted (Illustration (c); Gr. Ev. i. §450; Davis v. Roby,6\ Me. 427 ; Folsom v. Brawn, 25 N. H. 1 14 ; McGuire v. McDonald, 99 Mass. 49 ; Schultz v. Third A v. R. Co., 89 N. Y. 242 ; Kent v. State, 42 O. St. 426; Staser v. Hogan, 120 Ind. 207; Phcnix v. Castncr, 108 111. 207; Tolbert v. Burke, 89 Mich. 132 ; Schuster v. State, 80 Wis. 107 ; People 326 A DIGEST OF [Part III. Illustrations. (a) [On the trial of A for murder, a female witness B is asked on cross-examination whether she did not take things not belonging to her when she left a place where she had been at service. She answers by a denial. This being a collateral inquiry, it cannot be shown by another witness that her answer is untrue.] ' (/;) [The question is, whether two persons were jointly interested in buying and selling cattle. One of them becomes a witness, and is questioned, on cross-examination, as to their being jointly interested in a particular purchase and sale of horses, which is a matter irrelevant to the issue on trial. He answers that they were. This answer can- not be contradicted.]' 2 (c) [A witness called by A, in a suit between A and B, testifies, on cross-examination, that he has never threatened revenge against B. This being an inquiry as to bias or hostility of feeling, he may be contradicted on this point by other testimony] a Article 131.* STATEMENTS INCONSISTENT WITH PRESENT TESTIMONY MAY BE PROVED. Every witness under cross-examination in any pro- ceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject- matter of the proceeding and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the * See Note XLVII. [Appendix], v. Murray, 85 Cal. 350). In some States such a state of feeling on the part of the witness may be proved without previously cross-examining him in respect thereto {New Portland \ : Kingfield, 55 Me. 172; Day v. Stickney, 14 Allen, 255 ; People v. Brooks, 131 X. V. 321 ); but in other States the rule is otherwise. Aneals v. People, 134 111. 401, 414 ; Mar- tineau v. May, 18 Wis. 54 ; Langhorne v. Cotnm., 76 Ya. 1012 ; State v. Dickerson, 08 X. C. 708.] 1 [Stokes v. People, 53 X. Y. 164 ; see People v. Greenzaall, 108 N. Y. 296.] i [Farnum v. Farnum, 13 Gray, 508.] "[Collins v. Stephenson, 8 Gray, 438.] Chap. XVI.] THE LAW OF EVIDENCE. 327 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 m'ake it. 1 1 [A similar rule is in force here in most States. It only applies when the testimony of the adversary's witness, which is to be contradicted, is relevant to the issue (Gr. Ev. i. § 462 ; Ayers v. Watson, 132 U. S. 394; Ankersmitv. Tuck, 114 N. Y. 51; Lawlerv. AfcPheeters,72 Ind. 577 ; Atchison, etc. R. Co. v. Feehan, 149 111. 202 ; State v. McLaugh- lin, 44 la. 82 ; Rice v. Rice, 104 Mich. 371 ; Welch v. Abbot, 72 Wis. 512 ; Granning v. Swenson, 49 Minn. 381; State v. Bartley, 48 Kan. 421; Thompson v. Wertz, 41 Neb. 31 ; State v. Hunsaker, 16 Or. 497 ; Birch v. Hall, 99 Cal. 299 ; Browti v. State, 72 Md. 468 ; N. Y. etc. R. Co. v. Kellam, 83 Va. 851 ; State v. Goodwin, 32 W. Va. 177 ; Allison v. Coal Co., 87 Tenn. 60 ; Spohn v. Mo. Pac. R. Co., 122 Mo. 1 ; Haley v. State, 63 Ala. 83 ; State v. Jones, 44 La. Ann. 960). It is a general rule that the time and place of the supposed statement and the persons to whom or in whose presence it was made should be definitely presented to the witness's attention by the question put to him in cross-examination (see the cases supra); it is sufficient, however, if the particular occa- sion is designated with reasonable certainty, so that the witness can be under no mistake concerning it (Mayer v. Appel, 13 111. App. 87; Pendleton v. Empire, etc. Co., 19 N. Y. 13 ; Evansville, etc. R. Co. v. Montgomery, 85 Ind. 494 ; see Illustrations a and b). This is commonly called "laying the foundation" for the introduction of the impeaching evidence ; the object is to give the witness an opportunity either to deny having made the alleged statement, or, if he admits that he made it, to explain the alleged inconsistency. If such opportunity be not given, the evidence offered to show the contradiction is not admissible (McCulloch v. Dobson, 133 N. Y. 1 14 ; Richardson v. Kelly, 85 111. 491 ; Stone v. Northwestern Sleigh Co., 70 Wis. 585 ; State v. Cleary, 40 Kan. 287 ; Paterson v. State.S^ Md. 194; see cases supra). Still if the opportunity be not afforded before the impeaching evidence is given, but the witness is recalled afterwards and a chance to explain is then properly given to him, this, though irregular practice, obviates the ground of objection (People v. Weldon, in N. Y. 569; Esterly v. Ep- pclsheimer, 73 la. 260 ; Rounsavcll v. Pease, 45 Wis. 506 ; State v. Goodbier, 48 La. Ann. 770). If, however, the witness's absence or death prevents his receiving any opportunity to explain, the impeach- ing evidence must be rejected (Illustrations (c) and (d)\ Mattoxv. U. S., 156 U. S. 237 ; Hubbard v. Briggs, 31 N. Y. 518, 536 ; Runyan v. Price, 15 O. St. 1; Eppert v. Hall, 133 Ind. 417). When the witness, the proper foundation being laid, denies having 328 A DIGEST OF [Part III. The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that made the statement, the fact that he did make it may be afterwards proved by the persons who heard it ; and the same is true if his answer is that he does not recollect making it {Martin v. Towle, 59 N. H. 31 ; Kelly v. Co/ioes Co., 8 App. Div. (N. Y.) 156 ; Ind. Rev. St. § 508 ; Con- sol. Ice Mac/iine Co. v. Keifer, 134 111. 481 ; Jensen v. Railroad Co., 102 Mich. 176 ; Payne v. State, 60 Ala. 80). But if he admits having made the statement, such evidence is not necessary and is excluded {Atchi- son, etc. R. Co. v. Feehan, 149 111. 202- ; State v. Goodbier, 48 La. Ann. 770). Stenographic minutes of a witness's alleged contradictory evi- dence on a former trial will not be admissible to impeach him, but the stenographer may be called as impeaching witness and use the min- utes to refresh his memory {Stayner v. Joyce, 120 Ind. 99; Toohey v. Plummer, 69 Mich. 345 ; State v. Adams, 78 la. 292 ; cf. Campbell v. Campbell, 138 111. 612). If a witness's present testimony is as to mat- ter of opinion, and such opinion evidence is competent in the case, the fact that he has previously expressed or testified to contrary opinions may be shown to impeach him {Sanderson v. Nashua, 44 N. H. 492 ; Waterman v. Chicago, etc. R. Co., 82 Wis. 613). But testimony as to matters of fact cannot be impeached by proving the expression of opinions inconsistent therewith (Gr. Ev. i. §449 ; Holmes v. Anderson, 18 Barb. 420; Sloan v. Edwards, 61 Md. 89; Central R. Co. v. All- mon, 147 111. 471; McFadin v. Catron, 120 Mo. 252). The question put to the impeaching witness should, in general, be in the same language, substantially, as was used in calling the attention of the im- peached witness to his former statements {Sloan v. N. Y. C. R. Co., 45 N. Y. 125; Farmers' Ins. Co. v. Bair, 87 Pa. 124; Pence v. Waugh, 135 Ind. 143 ; Rice v. Rice, 104 Mich. 371; People v. Monella, 99 Cal. 333 ; but see Rucker v. State, 71 Miss. 680). The contradictory state- ments proved for impeachment are legitimate for this purpose only; they are not evidence of the facts asserted therein {Plyerv. German Amer. Ins. Co., 121 N.'Y. 689; Lundberg v. Northwestern Elev. Co., 42 Minn. 37; Charlton v. Unis, 4 Gratt. 58). After they have been proved, the witness may be allowed to testify in rebuttal, by way of explanation (McMitrrin v. Rigby, 87 la. 18; Waterman v. Chicago, etc. R. Co., 82 Wis. 613 ; cf. Bressler v. People, 117 111. 422); or other witnesses may be called to support his denial of having made the con- tradictory statements {Bronson v. Leach, 74 Mich. 713). In some of the New England States, a witness's contradictory state- ments can be proved without first calling his attention to them on cross-examination {Will-ins v. Babbershall, 32 Me. 184; Cook v. Chap. XVI.] THE LAW OF EVIDENCE. 329 he is "adverse" (/. c, hostile) to the party by whom he was called, and permits the question. 1 Brown, 34 N. H. 460 ; Day v. Stickney, 14 Allen, 255, 260 ; Tomlinson v. Derby, 43 Ct. 562) ; but he may be recalled to explain the alleged inconsistency [State v. Reed, 62 Me. 129 ; Gould v. Norfolk Lead Co., 9 Cush. 338 ; Hedge v. Clapp, 22 Ct. 262 ; see Harrison's Appeal, 48 Ct. 202). In Pennsylvania and Vermont it rests in the discretion of the trial court which order of examination shall be pursued (Rothrock v. Gallaher, 91 Pa. 108; State v. Glynn, 51 Vt. 577). The general rules, stated in this note, apply to the impeachment of a. party to an action, when he becomes a witness ( Winchellv.Winchell, 100 N. Y. 159; Comm. v. Tolliver, 119 Mass. 312; Browning v. Gosnell, 91 la. 448 ; Dunbar v. McGill, 69 Mich. 297 ; Kelsey v. Laytie, 28 Kan. 218); but if his prior inconsistent statements constitute admissions, relevant to the issue, they may be proved without first calling his attention to them. Brown v. Calumet Riv. R. Co., 125 111. 600 ; Hunter v. Gibbs, 79 Wis. 70 ; Leroy, etc. R. Co. v. Butts, 40 Kan. 159 ; White v. White, 82 Cal. 427.] 1 [This is by an English statute (see Note XLVII., Appendix). But it is a general rule of the common law that a party cannot impeach his own witness, by proving either his general bad character or his former statements inconsistent with his testimony (Gr. Ev. i. § 442 ; Cox v. Eayres, 55 Vt. 24 ; Adams v. Wheeler, 97 Mass. 67 ; Becker v. Koch, 104 N. Y. 395), and this is still true in most States (Id.; Hildreth v. Aldrich, 15 R. I. 163; Wheeler v. Thomas, 67 Ct. 577; Pollock v. Pollock, 71 N. Y. 137; Brewer \. Porch, 17 N. J. L. 377; Steams v. Merchants Bk., 53 Pa. 490 ; Hall v. Chicago, etc. R. Co., 84 la. 311 ; Stale v. Burks, 132 Mo. 363; State v. Keefe, 54 Kan. 197; Dixon v. State, 86 Ga. 754 ; Dunlap v. Richardson, 63 Miss. 447). But he may prove the true facts of the case by other witnesses, though this may incidentally discredit the witness; for such facts are competent evi- dence in the cause and are not proved for the direct and special pur- pose of impeachment {Coulter v. Atner. Exp. Co., 56 N. Y. 585; First Nat. Bk. v. Post, 66 Vt. 237 ; Pennsylvania R. Co. v. Fortney, 90 Pa. 323; East St. Louis R. Co. v. O'Hara, 150 111. 580; Smith v. Utesch, 85 la. 381 ; Smith v.Ehanert, 43 Wis. 181; Wallach v. Wylie, 28 Kan. 138; Sewellv. Gardner, 48 Md. 178; Meyer Drug Co. v.Mc- Mahan, 50 Mo. App. 18 ; Hollingsworth v. State, 79 Ga. 605). The. rule prohibiting impeachment applies also to the case where a party makes a witness his own by cross-examining him as to new matter (Fairchild v. Bascomb, 35 Vt. 398 ; Deere v. Bagley, 80 la. 197 ; Richarch v. State, 82 Wis. 172 ; cf. Arts v. Railroad Co., 44 la. 284 ; 330 A DIGEST OF [Part III. It seems that the discretion of the judge cannot be reviewed afterwards.' 1 Rice v. Howard, 16 Q. B. D. 681. see p. 317, note 1, ante). So where a party calls the opposing party as a witness, he cannot impeach him, though he may prove the true facts by other witnesses (Tarsneyv. Turner, 48 F. R. 818; Good v. Knox, 64 Yt. 97 ; Rindskopfv. Kuder, 145 111. 607 ; Gardner v. Con- nelly, 75 la. 205 ; Schmidt v. Dumam, 50 Minn. 96 ; Claflin v. Dodson, in Mo. 195 ; Chester v. Wilhelm, 1 11 N. C. 314 ; but see Brubaker's Ad/nr. v. Taylor, 76 Pa. 83); even in the absence of such counter evidence, however, he is not bound by whatever testimony such other party (who is naturally an adverse witness) may give, but the credibility of this testimony in all its parts is for the jury (Becker v. Koch, 104 N. Y. 395; Cross v. Cross, 108 N. Y. 628; Mitchell v. Sawyer, 115 111. 650). Where a witness is one whom the law obliges the party to call, as the subscribing witness to a deed or will, he may impeach him by showing his contradictory statements ( Thornton's Excrs. v. Thornton's Heirs, 39 Yt. 122 ; Shorey v. Hussey, 32 Me. 579 ; IVhilmanv. Morey,6^ N.H.448; ci.Peoplev. Case.io*, Mich. 92; State v. Slack, 69 Yt. 486 ; but see Whitaker v. Salisbury, 15 Pick. 534). If a party is surprised by unexpectedly adverse testimony given by his own witness, in conflict with prior statements which the witness has made, he may be permitted to examine the witness himself as to his having made such statements, calling his attention definitely to the time, place, and occasion of making them, and thus make it ap- parent to the court that the witness disappoints him, and give the latter a chance to explain, if possible, the apparent inconsistency ; in this way the party, if the witness gives no satisfactory explanation, may at least succeed in neutralizing the effect of his testimony (Put- nam v. U. S., 162 U. S. 697-707; Hickory v. U. S., 151 U. S. 303; Rullard v. Pearsall, 53 N. Y. 230 ; McNerney v. Reading, 150 Pa. 61 1 ; Humble v. Shoemaker, 70 la. 223 ; Johnson v. Leggett, 28 Kan. 590 ; White v. State, 87 Ala. 24; State v. Vickers, 47 La. Ann. 1574; cf. Fisher v. Hart, 149 Pa. 232). If, however, the witness denies having made such statements, the party cannot impeach him by evidence of his general bad character, nor by evidence that he did in fact make the statements (Hurley v. State, 46 0. St. 320; Hildreth v. Aldrich, 15 R. I. 163 ; Bullard \. Pearsall, supra ; Stearns v. Merchants' Bk., 53 Pa. 490); in some States, however, the contradictory statements may be proved (Hurlburt v. Bellows, 50 N. H. 105; Selover v. Bryant, 54 Minn. 434; State v. Sorter, 52 Kan. 531; see Smith v. Chap. XV I.J THE LAW OF EVIDENCE. 331 Illustrations. . (a) [Upon a trial for murder the defendant's wife was called as a witness in his behalf and testified that on the night before the com- mission of the crime he came home at nine o'clock, sick at his stom- ach, and with a severe headache, that he undressed and went to bed and lay there for hours. On cross-examination her attention was called to a certain occasion on the day after the crime was committed, when she met the district-attorney with Mr. A and Mr. B, and she was asked, "Did you say then to the district-attorney, in the presence of A & B, that you had never seen anything strange or unusual in your husband's conduct, and that he came home the night before and went to bed and slept as visual ? " She denied having said so. Mr. A was afterwards called as a witness, and his attention being called to the above inter- view, he was asked if she did then make the above statement. He answered that she did, and his testimony was held to be competent.] ' (b) [In an action to recover damages for an injury to plaintiff by being run over by a horse-car, the question was controverted whether the driver was intoxicated at the time. He was called as a witness and testified that he was not intoxicated. On cross-examination he was asked, " Did you not, after the first trial of this case, at the back door of A's place, at 8th and Jefferson Streets, tell B & C, in a con- versation there about this accident, that you did not deny being intoxi- cated at the time of the accident?" He answered, "No." Then B was called as a witness and asked, " Did the driver, shortly before the first trial of this case, at the back door of A's business place, at 8th and Jefferson Streets in a conversation about the injury to the plaintiff, say Briscoe, 65 Md. 561 ; Chism v. State, 70 Miss. 742 ; Nat. Syrup Co. v. Carlson, 42 111. App. 178). The party may also, of course, prove the true facts of the case by other witnesses (Id.; Hickory v. U. S., 151 U. S. 303 ; State v. Knight, 43 Me. 1 1, 134). There are statutes in some States, as in England, permitting a party to impeach his own witness (Ind. Rev. St. s. 515 (ed. 1894); Mass. Pub. St. c. 169, s. 22 ; St. of Vt. s. 1247 (ed. of 1894); Cal. Code Civ. Pro. § 2049 I Rev. St. Fla. s. 1 101 ; Code of Ga. § 3869 (ed. of 1882); Mont. Code Civ. Pro. § 3377 ; see Brooks v. Weeks, 121 Mass. 433 ; B lough v. Parry, 144 Ind. 463; State v. Sleeves, 29 Or. 85 ; Adams v. State, 34 Fla. 185). So, in some States, a party who calls the opposing party as a witness, may impeach him. Pub. St. N. H. c. 224, s. 15 (ed. 1891); Crocker v. Agenbroad, 122 Ind. 585.] 1 {People v. Schuyler, 106 N. Y. 298.] 33 2 A DIGEST OF [Part III. to you, in the presence of C, that he did not deny being intoxicated at the time of the accident ? " B answered, " Yes." On appeal, the rul- ing of the trial court admitting B's testimony was held to be erroneous, since the driver had not been questioned about a conversation before the first trial, and therefore the proper foundation had not been laid.] ' (c) [In a civil action a deposition of A, who was absent at sea, was read in evidence by the plaintiff. The defendant then offered to prove by a witness B, that the latter had had a number of conversations with A several months after the deposition was taken, in which A made statements inconsistent with his testimony and said that what he had sworn to was false. The court would not receive B's testimony, be- cause A had had no opportunity afforded to him to explain the alleged contradictions.] 2 (d) [Upon a trial for murder A testified against the defendant. The defendant was convicted, but his conviction was reversed and a new trial was had. Meanwhile A had died, and the testimony which he gave on the former trial was read to the jury. The defendant's coun- sel then offered testimony to the effect that A, subsequently to the first trial, had stated that the evidence given by him on the first trial was false. This testimony was rejected.] 3 Article 132. cross-examination as to previous statements in writing. A witness tinder cross-examination, (or a witness whom the judge under the provisions of Article 131 has per- mitted to be examined by the party who called him as to previous statements inconsistent with his present tes- timony), may be questioned as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause, without such writing being shown to him (or being proved in the first instance); but if it is intended to contradict him by the writing, his attention must, before such contradictory proof can be 1 [Qiuncy Horse R. Co. v. Gnuse, 137 111. 264.] 2 [Stacy v. Graham, 14 N. Y. 492.] 3 {Craft v. Ccfaim., 81 Ky. 250 ; Ayers v. Watson, 132 U. S. 394.] Chap. XVI.] THE LAW OF EVIDENCE. 333 given, be called to those parts of the writing which are to be used for the purpose of contradicting him. The judge may, at any time during the trial, require the document to be produced for his inspection, and may thereupon make such use of it for the purposes of the trial as he thinks fit. 1 1 17 & 18 Vict. c. 125, s. 24 ; and 28 Vict. c. 18, s. 5. I think the words in parenthesis represent the meaning of the sections, but in terms they apply only to witnesses under cross-examination — " Witnesses may be cross-examined," etc. [The statutory rule of this Article is not fol- lowed in this country, but the former English rule, laid down in the Queen s Case, 2 B. & B. 286. When it is sought on cross-examination to impeach an adversary's witness by inconsistent statements pre- viously made by such witness in writing, as in a letter, affidavit, or other written instrument, the witness should not be asked whether in such letter (or other writing) he made certain statements, which coun- sel suggests, but the proper practice is to first exhibit the writing to him and ask him if he wrote it or signed it. If he assents, the writing should itself be read in evidence as the best evidence of its contents and before examining the witness in reference to its statements. The court may in its discretion permit it to be put in evidence when the witness admits it to be his writing, if cross-examining counsel wishes then to question in regard to its contents; but the regular time for intro- ducing it is when said counsel develops his own side of the case. After the paper has been given in evidence, due opportunity is afforded to the witness to explain the alleged inconsistency (Gr. Ev. i. §§463-465 ; Romertze v. East River Bk., 49 N. Y. 577 ; Gaffney v. People, 50 N. Y. 416; Hosmer v. Groat, 143 Mass. 16; Morford v. Peck, 46 Ct. 380; Chicago R. Co. v. McLaughlin, 146 111. 353 ; Chicago, etc. R. Co. v. Hastings, 136 111. 251; Lightfoot v. People, 16 Mich. 507; Glenn v. Gleason, 61 la. 28 ; O 'Riley v. Clampt, 53 Minn. 539 ; State v. Stein, 79 Mo. 330; So. Kan. R. Co. v. Painter, 53 Kan. 414 ; Floyd v. State, 82 Ala. 16; State v. Callegari, 41 La. Ann. 578). The whole instrument should be read, or at least all of it which has any bearing upon the matters concerning which the witness is examined ( Whitman v. Morey, 63 N. H. 448 ; Hamilton v. People, 29 Mich. 195 ; Wilkerson v. Liters, 114 Mo. 245). Sometimes, however, this regular order of examination is not pursued, but the witness is cross-examined about the contents of the writing though it has not been read in evidence ; this may hap- pen when counsel entitled to object to this irregular practice does not do so in due time and on proper grounds, or when it appears that no 334 A DIGEST OF [Part III. Illustration. [In an action brought by A, who had been bookkeeper and cashier for B, against the latter to recover damages for a wrongful dis- charge, B pleaded that A had been rightfully discharged for mis- conduct, and called C, his chief clerk, as a witness to prove such misconduct. C testified that A had been absent at various times dur- ing business hours, sometimes being away nearly half a day at a time, that he was frequently late in the morning, and that, when his pres- ence in the office was very much needed, he was frequently away on his own business and could not be found. On the cross-examination of C, a letter was produced and shown to him, and he admitted that he wrote it. At the close of the defendant's evidence this letter was read in evidence by plaintiff's counsel. It was as follows : " To whom it may concern : A was in the employ of B, and I can bear testimony to his promptness and efficiency in his duties as bookkeeper and cashier. C." It was held on appeal that the letter was properly ad- mitted to impeach C's testimony.] ' Article 133. impeaching credit of witness. The credit of any witness may be impeached by the adverse party, by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit upon his oath. 3 Such per- prejudice can be occasioned thereby. Chicago, etc. R. Co. v. Artery, 137 U. S. 507 ; The Charles Morgan, 1 15 U. S. 69 ; Dtmdarv. McGill, 69 Mich. 297; State v. Mathews, 88 Mo. 121 ; State v. West, 95 Mo. 1 39-] 1 [Western Af/rs.' Ins. Co. v. Boughton, 136 111. 317.] 2 [It is a well-settled rule in this country that a witness of the adverse party may be impeached by evidence from other persons of his bad general reputatio7i in his own community. The impeaching witnesses must come from this community, and in examining any one of them the form of inquiry usually is to ask (1) whether he knows the general reputation in that community of the witness in question ; then, if he assents, (2) what that reputation is, and, if he says it is not good, (3) whether from such knowledge he would believe such witness on his Chap. XVI.] THE LAW OF EVIDENCE. 335 sons may not upon their examination in chief give reasons for their belief, but they may be asked their reasons in oath (Gr. Ev. i. § 461; Brown v. U. S., 164 U. S. 221; Carlson v. Win- terson, 147 N. Y. 652 ; Bogle's Excrs. v. Kreitzer, 46 Pa. 465 ; Gifford v. People, 148 111. 173; Spies v. People, 122 111. 9, 208; Sloan v. Ed- wards, 61 Md. 89, 103 ; in Massachusetts it is discretionary with the trial court whether the first question shall be asked, Wethe?-bee v. iVorris, 103 Mass. 565). The inquiry must only be as to general repu- tation, not as to specific wrongful acts {Comm. v. O'Brien, 119 Mass. 342; People v. Creenwall, 108 N. Y. 296; Drew v. State, 124 Ind. 9, 17 ; State v. Rogers, 108 Mo. 202). The reputation asked about must be in most States for truth and veracity {Sargent v. Wilson, 59 N. H. 396 ; Shaw v. Emery, 42 Me. 59 ; State v. Eoumier,6& Vt. 262 ; Quin- siganiond Bk. v. Hobbs, 1 1 Gray, 250 ; State v. Randolph, 24 Ct. 363 ; Atwoodw.Impson, 20 N.J. Eq. 150; Warner v. Lockerby, 31 Minn. 421; Hillis v. Wylie, 26 O. St. 574 ; U. S. v. Van Sickle, 2 McL. 219; Laclede Bk. v. Keeler, 109 111. 385 ; Bogle's Excrs. v. Kreitzer, supra ; People v.Abbott, 97 Mich. 484 ; Wallis v. White, 58 Wis. 26 ; State v. Johnson, 40 Kan. 266 ; Winter v. Smith, 22 Or. 469 ; see Teese v. Hunt- inglon,23 How. (U. S.) 2); but in some States the inquiry may be as to general moral character {Watkins v. State, 82 Ga. 231; Merriman v. State, 3 Lea, 393), or it is optional to inquire either as to general moral character, or as to truth and veracity, or as to both {Dollner v. Lintz, 84 N. Y. 669 ; Wright v. Paige, 3 Keyes, 581 ; Robbins v. Spencer, 121 Ind. 594 ; Griffith v. State, 140 Ind. 163 ; State v. Larson, 85 Ind. 659 ; State v. Potts, 78 la. 656; State v. Gesell, 124 Mo. 531; Lockard v. Comm. ,87 Ky. 201 ; McCutchen v. Loggins, 109 Ala. 457 ; State v. Spur- ling, 1 18 N. C. 1250; Hollingsworth v. State, 53 Ark. 387); in California the question is as to truth, honesty, and integrity {People v. Ryan, 108 Cal. 581). In most States also the third question (as to belief on oath) is asked ( U, S. v. Van Sickle, 2 McL. 219 ; Lyman v. Philadelphia, 56 Pa. 488 ; Hamiltoti v. People, 29 Mich. 173, 185 ; Titus v. Ash, 24 N. H. 319 ; Knight v. House, 29 Md. 194 ; Wilson v. State, 3 Wis. 798 ; Hillis v. Wylie, 26 O. St. 574 ; State v. Johnson, 40 Kan. 266 ; A'ti' v. State, 86 Tenn. 259 ; Cole v. State, 59 Ark. 50 ; State v. Christian, 44 La. Ann. 950 ; Ga. Code, § 3873) ; in New York and Illinois it is permissible, but not necessary {People v. Mather, 4 Wend. 229 ; Wright v. Paige, 3 Keyes, 581 ; Laclede Bk. v. Keeler, 109 111. 385 ; and see People v. Ty- ler, 35 Cal. 553); but in a few States it is not allowable {Willard v. Goodenough, 30 Vt. 393 ; Walton v. State, 88 Ind. 9 ; State v. Rush, 77 Mo. 519 ; cf. King v. Ruckman, 20 N. J. Eq. 316). When a party to an action (including a defendant in a criminal 336 A DIGEST OF [Part III. cross-examination, and their answers cannot be con- tradicted." No such evidence may be given by the party by whom any witness is called, 2 but when such evidence is given by the adverse party, the party who called the witness may give evidence in reply to show that the witness is worthy of credit. 3 case) is a witness, he may be impeached like other witnesses by proof of his bad general reputation {Foster v. Newbrongh, 58 N. Y. 481; Keyes v. State, 122 Ind. 527 ; State v. Kirkpatrick, 63 la. 554 ; State v. Day, 100 Mo. 242 ; Lockard v. Comm., 87 Ky. 201 ; Peck v. State, 86 Tenn. 259 ; People v. Hickman, 1 13 Cal. 80). The inquiry is generally as to the impeached witness's reputation at the time of the trial, but since reputation once established is presumed to continue (see Art. ioi,note3, ante), it may relate to his reputation be- fore or after the trial, if the period is not too remote (Dollnerv.Lintz, 84 N. Y. 669; Graha?n v. Chrystal, 2 Abb. Dec. 263 ; Amidon v. Hos- ley> 54 Vt. 25). An interval of weeks, or months, or even of several years has been held not too remote (Id.; Sleeper v. Van Middlesworth, 4 Den. 431 ; Papev. Wright, 116 Ind. 502; Davis v. Comtn.,q^ Ky. 19); but upon the question of years the authorities are not in accord (Fran- cis v. Franklin Fp, 179 Pa. 203 ; Slate v. Potts, 78 la. 656; Fuse v. Page, 32 Minn. 1 1 1 ; Wood v. Matthews, 73 Mo. 477 ; State v. Parker, 96 Mo. 382 ; Yarbrough v. State, 105 Ala. 43 ; Watkins v. State, 82 Ga. 231; Cline v. State, 51 Ark. 140). Reputation at a former place of residence may also be inquired into, if the time is not too remote. Norwood x. Andrews, 71 Miss. 641 ; Coates v. Sulan, 46 Kan. 341.] 1 2 Ph. Ev. 503-4; T. E. ss. 1324-5; see R. v. Brown, L. R. 1 C. C. R. 70. [An impeaching witness may be cross-examined as to his means of knowledge, the grounds of his unfavorable opinion, his bias against the impeached witness, etc. {People v. Mather, 4 Wend. 229, 258; Gulerette v. McK~inley,27 Hun, 320; Fates v. Farber, 4 Cush. 107; Hepworth v. Henshall, 153 Pa. 592 ; Bobbins v. Spencer, 121 Ind. 594 ; cf. J lolly- wood v. Feed, 57 Mich. 234); or his own general reputation maybe attacked {Phillips v. Thorn, 84 Ind. 84 ; Starks v. People, 5 Den. 106), or his contradictory statements proved (State v. Lawlor, 28 Minn. 216). So a sustaining witness may be cross-examined. Stape v. People, 85 N. Y. 390.] 2 17 & 18 Vict. c. 125, s. 2; and 28 Vict. c. 18, s. 3. [See p. 329, note 1, ante.] » 2 Ph. Ev. 504 ; T. E. ss. 1324-5. See R. v. Brown, L. R. 1 C. C. R. Chap. XVI.] THE LAW OF EVIDENCE. 337 Article 134. offences against women. When a man is prosecuted for rape or an attempt to ravish, it may be shown that the woman against whom the offence was committed was of a generally immoral 70. [There are several modes of sustaining the credit of an im- peached witness: (1) If his general reputation is impeached, other witnesses who know his reputation may be called to show that such reputation is good, and (in most States) that they would believe him on oath. They are examined in much the same way as impeach- ing witnesses (Hamilton v. People, 29 Mich. 173, 184; Sloan v. Ed- wards, 61 Md. 89 ; State v. Nelson, 58 la. 208 ; Couun. v. Ingraham, 7 Gray, 46; Morss v. Palmer, 15 Pa. 51; Magee v. People, 139 111. 138; First Nat. Bk. v.Wolff, 79 Cal. 69; Stape v. People, 85 N. Y. 390; see Adams v. Greenwich Ins. Co., 70 N. Y. 166). The court may, in its discretion, limit the number of impeaching and of sus- taining witnesses (Bunnell v. Butler, 23 Ct. 65 ; Bissell v. Cornell, 24 Wend. 354 ; Hollywood v. Reed, 57 Mich. 234). (2) If the witness is impeached by evidence of his prior inconsistent statements (see Art. 131), he msy in some States be sustained by evi- dence of his good general reputation for truth (Sweet v. Sherman, 21 Vt. 23 ; Bd. ofCommrs. v. O'Connor, 137 Ind. 622 ; Walker v. Phcenix Ins. Co., 62 Mo. App. 209 ; Isler v. Dewey, 71 N. C. 14 ; Hodgkins v. State, 89 Ga. 761, 765 ; Holley v. State, 105 Ala. 100 ; Crook v. State, 27 Tex. App. 198); but in other States this is not permitted (Brown v. Mooers, 6 Gray, 451 ; Webb v. State, 29 O. St. 351 ; Wertz v. May, 21 Pa. 274 ; Frost \. McCargar, 29 Barb. 617; People v. Olmstead, 30 Mich. 431 ; State v. Archer, 73 la. 320; Slieppardv. Yocum, 10 Or. 402, citing other cases). Such evidence of good reputation has also been received in some States to sustain the credit of a witness who has been impeached by proof of his conviction for crime (Gertz v. Fitchburg R. Co., 137 Mass. 77 ; Webb v. State, 29 O. St. 351 ; People v. Amanacus, 50 Cal. 233), or by proof that he has suborned or has attempted to suborn witnesses or to suppress testimony (People v. Ah Fat, 48 Cal. 61 ; Lewis v. State, 35 Ala. 380; see Stevenson v. Gunning, 64 Vt. 601, 609). It has also been held in a few cases that when, on the cross-examination of a witness, facts are brought out which discredit him, he may be sustained by proof of his good repu- tation ( Central R. Co. v. Dodd, 83 Ga. 507 ; Texas, etc. R. Co. v. Raney, 86 Tex. 363 ; cf . State v. Cherry, 63 N. C. 493 ; Paine v. Tilden, 20 338 A DIGEST OF [Part III. character, although she is not cross-examined on the subject. 1 The woman may in such a case be asked whether she has had connection with other men, but her answer cannot be contradicted. 8 She may also be asked Vt. 554; Coombes v. State, 17 Tex. App. 258; Walker v. Phoenix Ins. Co., 62 Mo. App. 209 ; but see Harrington v. Lincoln, 4 Gray, 563 ; People v. Gay, 7 N. Y. 378). It is well settled, however, that such evidence of good reputation is not received to sustain a witness, simply because the testimony of other witnesses has been in conflict with his own {Stevenson v. Gunning, 64 Yt. 601 ; Atwood v. Dearborn, 1 Allen, 483; .State \.\Vard, 49 Ct. 429; Starks v. People, 5 Den. 106 ; Fits- gerald v. Goff, 99 Ind. 28 ; Tedens v. Schumers, 112 111. 266; Miller v. Western, etc. R. Co., 93 Ga. 480 ; Mobile, etc. R. Co. v. Williams, 54 Ala. 168 ; Texas, etc. R. Co. v. Raney, 86 Tex. 363 ; but see Davis v. State, 38 Md. 15 ; State v. Desforges, 48 La. Ann. 73); but in Vir- ginia it is received, in whatever way a witness may be discredited {George v. Pile her, 28 Gratt. 299; cf. Coltraine v. Brown, 71 N. C. 19). (3) It is _iot in general permissible to support a witness by evidence that he has made former statements similar to his testimony (Gr. Ev. i. § 469 ; Robb v. Hackley, 23 Wend. 50 ; Conrad v. Griffey, 1 1 How. (U. S.) 480 ; State v. Flint, 60 Vt. 304 ; Reed v. Spaulding, 42 N. H. 114; Crooks v. Bitnn, 136 Pa. 368 ; State v. Porter, 74 la. 623 ; Hodges v. Bates, 102 Ind. 494; Mason v. Vestal, 88 Cal. 396; Jones v. State, 107 Ala. 93 ; and cases infra). But when his testimony is charged to have been given under the influence of some improper or interested motive, or to be a recent fabrication, and in other like cases, it may be shown that he made similar statements before the motive existed, or before there could have been any inducement to fabricate (Hewitt v. Corey, 150 Mass. 445 ; In re Hesdra, H9,N. Y. 615 ; Clever v. Hil- berry, 116 Pa. 431 ; Stolp v. Blair, 68 111. 541 ; State v. Hendricks, 32 Kan. 559; Barkly v. Copcland, 74 Cal. 1 ; City Pass. R. Co. v. Knee, 83 Md. y-j ; Howard x. Comm., 81 Va. 488; Yarbrough v. State, 105 Ala. 43 ; State v. Cady, 46 La. Ann. 1346). In some States, however, such evidence is received to sustain the credibility of a witness, when- ever he has been impeached by proof of his prior inconsistent state- ments (Hobbs v. Stale, 133 Ind. 404; State v. Whelehon, 102 Mo. 17; Graham v. Mc Reynolds, 90 Tenn. 673 ; State v. Fontenot, 48 La. Ann. 283; Goode v. State, 32 Tex. App. 505); so in North Carolina, if he has been discredited in any way. State v. Whitfield, 92 N. C. 831.] 1 R. v. Clarke, 2 Stark. 241. 8 R. v. Holmes, L. R. 1 C. C. R. 334. Chap. XVI.] THE LAW OF EVIDENCE. 339 whether she has had connection on other occasions with the prisoner, and if she denies it she may be contra- dicted. 1 2 1 R. v. Martin, 6 C. & P. 562, and remarks in R. v. Holmes, p. 337, per Kelly, C. B. See also R. v. Cockcroft, 11 Cox, 410, and R. v. Riley, 18 Q. B. D. 481. 2 [The cases in this country are agreed that in a criminal prose- cution for rape or an attempt to ravish, the woman's bad general character for chastity may be proved by witnesses, and also that she may be examined as to her previous connection with the prisoner (Gr. Ev. iii. § 214 ; Conkey v. People, 1 Abb. Dec. 418 ; Woods v. People, 55 N. Y. 515 ; State v. Forshner, 43 N. H. 89; O'Blenis v. State, 47 N. J. L. 279; Bedgoodv. State, 115 Ind. 275 ; and cases infra). But they disagree as to whether particular acts of connection with other men can be proved. In many States the right to prove such acts, either by her own examination or by the evidence of witnesses, is denied {State v. Knapp, 45 N. H. 148; Comm. v. Hart-is, 131 Mass. 336 ; State v. Fitzsimon, 18 R. I. 236 ; McCombs v. State, 8 O. St. 643 ; Richie v. State, 58 Ind. 355 ; People v. McLean, 71 Mich. 309 ; State v. White, 35 Mo. 500 ; State v. Brown, 55 Kan. 766 ; State v. Turner, 1 Houst. 76 ; Shartzer v. State, 63 Md. 149 ; Rice v. State, 35 Fla. 236 ; Pefferling v. State, 40 Tex. 486; State v. Campbell, 20 Nev. 122); but in a few States such proof is competent {State v. Hollenbeck, 67 Vt. 34, permitting it by cross-examination ; Benstine v. State, 2 Lea, 16a, holding both modes of proof allowable, and so People v. Benson, 6 Cal. 221 ; cf. Shirwin v. People, 69 111. 55); in New York the de- cisions upon this point are conflicting ( Woods v. People, 55 N. Y. 515 ; cf. Brown v. State, 72 Miss. 997). In trials for rape upon a woman under the age of legal consent, evidence of her bad repute for chastity, or of intercourse with other men, is, in general, not competent {People v. Glover, 71 Mich. 303 ; People v. Abbott, 97 id. 484 ; State v. Duffey, 128 Mo. 549; People v. Johnson, 106 Cal. 289 ; but see People v. Flaherty, 79 Hun, 48). In actions for indecent assault, evidence of the woman's bad general repute for chastity is competent ; so, in some States, of particular acts of unchastity with other men {Mitchell v. Work, 13 R. I. 645 ; Watty v. Berber, 18 Wis. 525 ; Gulerette v. McKinley, 27 Hun, 320 ; cf. I r oung v. Johnson, 123 N. Y. 226), but not in other States {Gore v. Curtis, 81 Me. 403 ; cf. Miller v. Curtis, 158 Mass. 127). In actions for seduction, the woman's bad general character for chastity may be shown (see p. 161, note, ante) ; but she cannot, in some States, be cross-examined as to prior acts of intercourse with other 340 A DIGEST OF [Part III. Article 135. what matters may be proved in reference to declara- tions relevant under articles 25-32. Whenever any declaration or statement made by a deceased person, relevant or deemed to be relevant under Articles 25-32, both inclusive, or any deposition is proved, all matters may be proved in order to contradict it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness, and had denied upon cross-examination the truth of the matter sug- gested. 1 men than the seducer {Hoffman v. Kemerer, 44 Pa. 453 ; Doyle v. Jes- sup, 29 111. 460; Smith v. Yaryan, 69 Ind. 445 ; cf. Clifton v. Granger, 86 la. 573), unless a child is born and its paternity is in question (see Smith v. Yaryan). But some cases hold that such acts may be proved by the testimony of the men themselves (Gr. Ev. ii. § 577 ; White v. Murtland, 71 111. 250; cf. Ford v. Jones, 62 Barb. 484), or by cross- examination of the woman as well as by the evidence of witnesses {Love v. Masoner, 6 Baxt. 24;. IVandell v. Edwards, 25 Hun, 498; cf. West v. Druff, 55 la. 335 ; Stewart v. Smith, 92 Wis. 76; Ayerv. Colgrove, 81 Hun, 322). Upon an indictment for adultery, the woman's bad character for chastity may be proved {Cotnm. v. Gray, 129 Mass. 474). In bastardy proceedings, as the fact of paternity is in question, it may be shown that the woman had intercourse with other men during the time when the child could have been begotten, but not at other times {Knight v. Morse, 54 Vt. 432 ; Ronan v. Dugan, 126 Mass. 176 ; lloi ham v. State, 91 Ind. 82 ; People v. Kaminsky, 73 Mich. 637 ; State v. Lavin, 80 la. 555 ; Holeotub v. People, 79 111. 409; Swisher v. Ma- lone, 31 W. Ya. 442 ; cf. People v. Sckildwachter, 5 App. Div. (N. Y.) 288) ; her general character for chastity, however, is not in issue. Bookhout v. State, 66 Wis. 415 ; Parker v. Dudley, 1 18 Mass. 602.] 1 R. v. Drummond, 1 Leach, 338 ; R. v. Pike, 3 C. & P. 598. In these cases dying declarations were excluded, because the persons by whom they were made would have been incompetent as witnesses, but the principle would obviously apply to all the cases in question. [Thus Chap. XVI.] THE LAW OF EVIDENCE. 341 Article 136. refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing - made by himself at the time of the transaction concerning which he is ques- tioned, or so soon afterwards that the judge considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. 1 when dying declarations are offered in evidence, it may be shown that the deceased declarant was an atheist, to affect his competency or credibility {State v. Elliott, 45 la. 486; Goodall v. State, 1 Or. 333 ; People v. Chin Mook Sow, 51 Cal. 597 ; see p. 272, n. 3, ante), or that his general reputation was bad {Lesterv. State, 37 Fla. 382; Redd v. State, 99 Ga. 210) ; or his contradictory statements may be proved {People v. Lawrence, 2 1 Cal. 368 ; Carver v. State, 164 U. S. 697 ; State v. Shaffer, 23 Or. 555; Battle v. State, 74 Ga. 101; Shell v. State, 88 Ala. 14; Morelock v. State, 90 Tenn. 528 ; State v. Lodge, 9 Houst. 542 ; Felder v. State, 23 Tex. App. 477 ; cf. Richards v. State, 82 Wis. 172 ; Comm. v. Cooper, 5 Allen, 495 ; contra, Wroe v. State, 20 O. St. 460). As to depositions, see Art. 131, ante, Illustration {c)\ Keran v. Trice's Excrs., 75 Va. 690 ; Dabney v. Mitchell, 66 Ala. 495 ; Wallach v. Wylie, 28 Kan. 138 ; Webster v. Mann, 56 Tex. 119.] 1 2 Ph. Ev. 480, etc.; T. E. ss. 1264-70; R. N. P. 194-5. [There are three cases of refreshing memory : { \ ) Where the witness, by referring to the writing, is enabled to actually recollect the facts and can testify- in reality from memory. The writing may be the original one made by himself, while the facts were fresh in mind {Chamberlin v. Ossipee, 60 N. H. 212 ; Morrison v. Chapin, 97 Mass. 72 ; Nat. Bk. of Dubois v. Nat. Bk. of Williamsport, 1 14 Pa. 1 ; Card v. Foot, 56 Ct. 369 ; Wel- come v. Batchelder, 23 Me. 85 ; Russell v. Hudson River R. Co., 17 N. Y. 134; Mason v. Phelps, 48 Mich. 126; People v. Cotta, 49 Cal. 166), or a copy thereof {Hudnutt v. Comstock, 50 Mich. 596 ; Bonnet v. (jla/lfeldt, 120 111. 166 ; Lawson v. Glass, 6 Col. 134 ; so as to copy of 342 A DIGEST OF [Part III. An expert may refresh his memory by reference to professional treatises. 1 copy, Folsom v. Apple River Co., 41 Wis. 602 ; or a copy in a news- paper, Comm. v. Ford, 130 Mass. 64; Clifford v. Drake, 110 111. 135), or it may be a writing made by another person {State v. Miller, 53 la. 209; Hill v. Stale, 17 Wis. 675 ; Robinson v. Mulder, 81 Mich. 75 ; Culver v. 6V D. Railway, L. R. 5 Q. B. 320, per Blackburn, J. ; Alner v. George, 1 Camp. 392; Bauerman v. Radenius, 7 T. R. 663. 362 A DIGEST OF [Notes. As to admissions by parties interested, see Spargo v. Brown, 9 B. & C. 938. See also on the subject of this Article 1 Ph. Ev. 362-3, 369, 398 ; and T. E. ss. 669-671, 685, 687, 719; Roscoe, N. P. 71. As to admissions by privies, see 1 Ph. Ev. 394-7, and T. E. (from Greenleaf), s. 712. NOTE XI. (to Article 17.) The subject of the relevancy of admissions by agents is rendered difficult by the vast variety of forms which agency assumes, and by the distinction between an agent for the purpose of making a state- ment and an agent for the purpose of transacting business. If A sends a message by B, B's words in delivering it are in effect A's; but B's statements in relation to the subject-matter of the message have, as such, no special value. A's own statements are valuable if they suggest an inference which he afterwards contests because they are against his interest ; but when the agent's duty is done, he has no special interest in the matter. The principle as to admissions by agents is stated and explained by Sir W. Grant in Fairlie v. Hastings, 10 Ves. 126-7. NOTE XII. (to Article 18.) See for a third exception (which could hardly occur now), Clay v. Langsloiv, M. & M. 45. NOTE XIII. (to Article 19.) This comes very near to the case of arbitration. See, as to irregu- lar arbitrations of this kind, 1 Ph. Ev. 383 ; T. E. ss. 689-90. Notes.] THE LAW OF EVIDENCE. 363 NOTE XIV. (to Article 20.) See more on this subject in 1 Ph. Ev. 326-8 ; T. E. ss. 702, 720-3 ; R. N. P. 66. NOTE XV. (to Article 22.) On the law as to confessions, see 1 Ph. Ev. 401-423 ; T. E. ss. 796- 807, and s. 824; Best, ss. 551-574; Roscoe, Cr. Ev. 38-56; 3 Russ. on Crimes, by Greaves, 365-436. Joy on Confessions reduces the law on the subject to the shape of 13 propositions, the effect of all of which is given in the text in a different form. Many cases have been decided as to the language which amounts to an inducement to confess (see Roscoe, Cr. Ev. 40-43, where most of them are collected). They are, however, for practical purposes, summed up in J?, v. Baldry, 2 Den. C. C. 430, which is the authority for the last lines of the first paragraph of this Article. NOTE XVI. (to Article 23.) Cases are sometimes cited to show that if a person is examined as a witness on oath, his deposition cannot be used in evidence against him afterwards (see T. E. ss. 809 and 818, n. 6 ; also 3 Russ. on Crimes, by Greaves, 407, etc.). All these cases, however, relate to the exami- nations before magistrates of persons accused of crimes, under the statutes which were in force before 11 & 12 Vict. c. 42. These statutes authorized the examination of prisoners, but not their examination upon oath. The 11 & 12 Vict. c. 42, prescribes the form of the only question which the magistrate can put to a prisoner ; and since that enactment it is scarcely possible to suppose that any magistrate would put a prisoner upon his oath. The cases may therefore be regarded as obsolete. 364 A DIGEST OF [Notes. NOTE XVII. (to Article 26.) As to dying declarations, see 1 Ph. Ev. 239-252 ; T. E. ss. 644-652 ; Best, s. 505 ; Starkie, 32 & 38 ; 3 Russ. Cri. 250-272 (perhaps the fullest collection of the cases on the subject) ; Roscoe, Cri. Ev. 31, 32. R. v. Baker, 2 Mo. & Ro. 53, is a curious case on this subject. A and B were both poisoned by eating the same cake. C was tried for poisoning A. B's dying declaration that she made the cake in C's presence, and put nothing bad in it, was admitted as against C, on the ground that the whole formed one transaction. [See Brown v. Comm., 73 Pa. 321 ; State v. West/alt, 49 la. 328 ; State v. Bohan, 15 Kan. 407.] NOTE XVIII. (to Article 27.) 1 Ph. Ev. 280-300; T. E. ss. 630-643; Best, 501; R. N. P. 63; and see note to Price v. Lord Torrington, 2 S. L. C. 328. The last case on the subject is Massey v. Allen, 13 Ch. D. 558. NOTE XIX. (to Article 28.) The best statement of the law upon this subject will be found in Higham v. Ridgway, and the note thereto, 2 S. L. C. 318. See also 1 Ph. Ev. 252-280 ; T. E. ss. 602-629 ; Best, s. 500 ; R. N. P. 584. A class of cases exists which I have not put into the form of an Article, partly because their occurrence since the commutation of tithes must be very rare, and partly because I find a great difficulty in understanding the place which the rule established by them ought to occupy in a systematic statement of the law. They are cases which lay down the rule that statements as to the receipts Notes.] THE LAW OF EVIDENCE. 365 of tithes and moduses made by deceased rectors and other ecclesi- astical corporations sole are admissible in favor of their successors. There is no doubt as to the rule (see, in particular, Short v. Lee, 2 Jac. & Wal. 464; and Young v. Clare Hall, 17 Q. B. 537). The difficulty is to see why it was ever regarded as an exception. It .falls directly within the principle stated in the text, and would appear to be an obvious illustration of it ; but in many cases it has been declared to be anomalous, inasmuch as it enables a predecessor in title to make evidence in favor of his successor. This suggests that Article 28 ought to be limited by a proviso that a declaration against interest is not relevant if it was made by a predecessor in title of the person who seeks to prove it, unless it is a declaration by an ecclesiastical corporation sole, or a member of an ecclesiastical corporation aggregate (see Short v. Lee), as to the receipt of a tithe or modus. Some countenance for such a proviso may be found in the terms in which Bayley, J., states the rule in Gleadow v. Atkin, and in the circumstance that when it first obtained currency the parties to an action were not competent witnesses. But the rule as to the in- dorsement of notes, bonds, etc., is distinctly opposed to such a view. NOTE XX. (to Article 30.) Upon this subject, besides the authorities in the text, see 1 Ph. Ev. 169-197; T. E. ss. 543-569; Best, s. 497; R. N. P. 50-54 (the latest collection of cases). A great number of cases have been decided as to the particular documents, etc., which fall within the rule given in the text. They are collected in the works referred to above, but they appear to me merely to illustrate one or other of the branches of the rule, and not to extend or vary it. An award, e. g., is not within the last branch of Illustration {b), because it ''is but the opinion of the arbitrator, not upon his own knowledge" {Evans v. Rees, 10 A. & E. 155) ; but the 366 A DIGEST OF [Notes. detailed application of such a rule as this is better learned by experi- ence, applied to a firm grasp of principle, than by an attempt to recollect innumerable cases. The case of Weeks v. Sparke is remarkable for the light it throws on the history of the Law of Evidence. It was decided in 1813, and contains inter alia the following curious remarks by Lord Ellen- borough. "It is stated to be the habit and practice of different cir- cuits to admit this species of evidence upon such a question as the present. That certainly cannot make the law, but it shows at least, from the established practice of a large branch of the profession, and of the judges who have presided at various times on those circuits, what has been the prevailing opinion upon this subject amongst so large a class of persons interested in the due administration of the law. It is stated to have been the practice both of the Northern and Western Circuits. My learned predecessor, Lord Kenyon, certainly held a different opinion, the practice of the Oxford Circuit, of which he was a member, being different." So in the Berkeley Peerage Case, Lord Eldon said, "when it was proposed to read this deposition as a declaration, the Attorney-General (Sir Vicary Gibbs) flatly objected to it. He spoke quite right as a Western Circuiteer, of what he had often heard laid down in the West, and never heard doubted" (4 Camp. 419, A. D. 181 1). This shows how very modern much of the Law of Evidence is. Le Blanc, J., in Weeks v. Sparke, says, that a foundation must be laid for evidence of this sort " by acts of enjoy - nent within living memory." This seems superfluous, as no jury would ever find that a public right of way existed, which had not been used in living memory, on the strength of a report that some deceased person had said that there once was such a right. NOTE XXI. (to Article 31.) See 1 Ph. Ev. 197-233 ; T. E. ss. 571-592 ; Best, 633 ; R. N. P. 49-50. The Berkeley Peerage Case (Answers of the Judges to the House of Notes.] THE LAW OF EVIDENCE. 367 Lords), 4 Camp. 401, which established the third condition given in the text ; and Davies v. Lowndes, 6 M. & G. 471 (see more particu- larly pp. 525-9, in which the question of family pedigrees is fully dis- cussed) are specially important on this subject. As to declarations as to the place of births, etc., see Shields v Boucher, 1 De G. & S. 49-58. NOTE XXII. (to Article 32.) See also 1 Ph. Ev. 306-8 ; T. E. ss. 434-447 ; Buller, N. P. 238, and following. In reference to this subject it has been asked whether this principle applies indiscriminately to all kinds of evidence in all cases. Suppose a man were to be tried twice upon the same facts — e.g., for robbery after an acquittal for murder, and suppose that in the interval be- tween the two trials an important witness who had not been called before the magistrates were to die, might his evidence be read on the second trial from a reporter's short-hand notes ? This case might easily have occurred if Orton had been put on his trial for forgery as well as for perjury. I should be disposed to think on principle that such evidence would be admissible, though I cannot cite any author- ity on the subject. The common-law principle on which depositions taken before magistrates and in Chancery proceedings were admitted seems to cover the case. NOTE XXIII. (to Articles 39-47.) The law relating to the relevancy of judgments of Courts of Justice to the existence of the matters which they assert is made to appear extremely complicated by the manner in which it is usually dealt with. The method commonly employed is to mix up the question of the effect of judgments of various kinds with that of their admis- 368 A DIGEST OF [Notes. sibility, subjects which appear to belong to different branches of the law. Thus the subject, as commonly treated, introduces into the Law of Evidence an attempt to distinguish between judgments in rem, and judgments in personam or inter partes, (terms adapted from, but not belonging to, Roman law, and never clearly defined in reference to our own or any other system); also the question of the effect of the pleas of autrefois acquit, and aictrefois convict, which clearly belong not to evidence, but to criminal procedure ; the question of estoppels, which belongs rather to the law of pleading than to that of evidence; and the question of the effect given to the judgments of foreign Courts of Justice, which would seem more properly to belong to pri- vate international law. These and other matters are treated of at great length in 2 Ph. Ev. 1-78, and T. E. ss. 1480-1534, and in the note to the Duchess of Kingston's Case in 2 S. L. C. 777-880. Best (ss. 588- 595) treats the matter more concisely. The text is confined to as complete a statement as I could make of the principles which regulate the relevancy of judgments considered as declarations proving the facts which they assert, whatever may be the effect or the use to be made of those facts when proved. Thus the leading principle stated in Article 40 is equally true of all judgments alike. Every judgment, whether it be in rem or inter partes, must and does prove what it actually effects, though the effects of different sorts of judgments differ as widely as the effects of different sorts of deeds. There has been much controversy as to the extent to which effect ought to be given to the judgments of foreign courts in this country, and as to the cases in which the courts will refuse to act upon them ; but as a mere question of evidence, they do not differ from English judgments. The cases on foreign judgments are collected in the note to the Duchess of Kingston s Case, 2 S. L. C. 813-845. There is a con- venient list of the cases in R. N. P. 201-3. The cases of Godardv. Gray, L. R. 6 Q. B. 139, Castrique v. Imrie, L. R. 4 E. & I. App. 414, [and Abouloffv. Oppenheimer, 10 Q. B. D. 295], are the latest leading cases on the subject. Notes.] THE LAW OF EVIDENCE. 369 NOTE XXIV. (to Chapter V.) On evidence of opinions, see 1 Ph. Ev. 520-8; T. E. ss. 1273-81; Best, ss. 511-17; R. N. P. 193-4. The leading case on the subject is Doe v. Tatham, 7 A. & E. 313; and 4 Bing. N. C. 489, referred to above in Note VIII. Baron Parke, in the extracts there given, treats an expression of opinion as hearsay, that is, as a statement affirming the truth of the subject-matter of the opinion. NOTE XXV. (to Chapter VI.) See 1 Ph. Ev. 502-8 ; T. E. ss. 325-336 ; Best, ss. 257-263 ; 3 Russ. Cri, 299-304. The subject is considered at length in R. v. Row ton, 1 L. & C. 520. One consequence of the view of the subject taken in that case is that a witness may with perfect truth swear that a man, who to his knowledge has been a receiver of stolen goods for years, has an excellent character for honesty, if he has had the good luck to conceal his crimes from his neighbors. It is the essence of successful hypocrisy to combine a good reputation with a bad disposition, and according to R. v. Rowton, the reputation is the important matter. The case is seldom if ever acted on in practice. The question always put to a witness to character is, What is the prisoner's character for honesty, morality, or humanity ? as the case may be ; nor is the wit- ness ever warned that he is to confine his evidence to the prisoner's reputation. It would be no easy matter to make the common run of witnesses understand the distinction. NOTE XXVI. (to Article 58.) The list of matters judicially noticed in this Article is not intended to be quite complete. It is compiled from 1 Ph. Ev. 458-67, and 370 A DIGEST OF [Notes. T. E. ss. 4-20, where the subject is gone into more minutely. A con- venient list is also given in R. N. P. ss. 88-92, which is much to the same effect. It may be doubted whether an absolutely complete list could be formed, as it is practically impossible to enumerate every- thing which is so notorious in itself, or so distinctly recorded by pub- lic authority, that it would be superfluous to prove it. Paragraph (1) is drawn with reference to the fusion of Law, Equity, Admiralty, and Testamentary Jurisdiction effected by the Judicature Act. NOTE XXVII. (to Article 62.) Owing to the ambiguity of the word "evidence," which is some- times used to signify the effect of a fact when proved, and sometimes to signify the testimony by which a fact is proved, the expression "hearsay is no evidence" has many meanings. Its common and most important meaning is the one given in Article 14, which might be otherwise expressed by saying that the connection between events, and reports that they have happened, is generally so remote that it is expedient to regard the existence of the reports as irrelevant to the occurrence of the events, except in excepted cases. Article 62 ex- presses the same thing from a different point of view, and is subject to no exceptions whatever. It asserts that whatever may be the rela- tion of a fact to be proved to the fact in issue, it must, if proved by oral evidence, be proved by direct evidence. For instance, if it were to be proved under Article 31 that A, who died fifty years ago, said that he had heard from his father B, who died 100 years ago, that A's grandfather C had told B that D, C's elder brother, died without issue, A's statement must be proved by some one who, with his own ears, heard him make it. If (as in the case of verbal slander) the speaking of the words was the very point in issue, they must be proved in pre- cisely the same way. Cases in which evidence is given of character and general opinion may perhaps seem to be exceptions to this rule, but they are not so. . When a man swears that another has a good Notes.] THE LAW OF EVIDENCE. 371 character, he means that he has heard many people, though he does not particularly recollect what people, speak well of him, though he does not recollect all that they said. NOTE XXVIII. (to Articles 66 & 67.) This is probably the most ancient, and is, as far as it extends, the most inflexible of all the rules of evidence. The following character- istic observations by Lord Ellenborough occur in i?. v \ Harringworth, 4 M. & S. 353 : "The rule, therefore, is universal that you must first call the sub- scribing witness ; and it is not to be varied in each particular case by trying whether, in its application, it may not be productive of some inconvenience, for then there would be no such thing as a gen- eral rule. A lawyer who is well stored with these rules would be no better than any otJier man that is without them, if by mere force of speculative reasoning it might be shown that the application of such and such a rule would be productive of such and such an incon- venience, and therefore ought not to prevail ; but if any general rule ought to prevail, this is certainly one that is as fixed, formal, and universal as any that can be stated in a Court of Justice." In IVhyman v. Garth, 8 Ex. 807, Pollock, C. B., said, "The par- ties are supposed to have agreed inter se that the deed shall not be given in evidence without his" (the attesting witness) "being called to depose to the circumstances attending its execution." In very ancient times, when the jury were witnesses as to matter of tact, the attesting witnesses to deeds (if a deed came in question^ would seem to have been summoned with, and to have acted as a sort of assessors to, the jury. See as to this, Bracton, fo. 38 a ; For- tescue de Laudibus, ch. xxxii. with Selden's note ; and cases collected from the Year-books in Brooke's Abridgement, tit. Testmoignes. For the present rule, and the exceptions to it, see 1 Ph. Ev. 242- 261 ; T. E. ss. 1637-42 ; R. N. P. 147-50 ; Best, ss. 220, etc. The old rule which applied to all attested documents was restricted 372 A DIGEST OF [Notes. to those required to be attested by law, by 17 & 18 Vict. c. 125, s. 26, and 28 & 29 Vict. c. 18, ss. 1 & 7. NOTE XXIX. (to Article 72.) For these rules in greater detail, see 1 Ph. Ev. 452-3, and 2 Ph. Ev, 272-289 ; T. E. ss. 419-426 ; R. N. P. 8 & 9. The principle of all the rules is fully explained in the cases cited in the footnotes, more particularly in Divyer v. Collins, 7 Ex. 639. In that case it is held that the object of notice to produce is "to enable the party to have the document in court, and if he does not, to enable his opponent to give parol evidence ... to exclude the argument that the opponent has not taken all reasonable means to procure the original, which he must do before he can be permitted to make use of secondary evidence" (p. 647-8). NOTE XXX. (to Article 75.) Mr. Phillips (ii. 196) says, that upon a plea of mil tiel record, the original record must be produced if it is in the same court. Mr. Taylor (s. 1379) says, that upon prosecutions for perjury as- signed upon any judicial document the original must be produced. The authorities given seem to me hardly to bear out either of these statements. They show that the production of the original in such cases is the usual course, but not, I think, that it is necessary. The case of Lady Dartmouth v. Roberts, 16 Ea. 334, is too wide for the proposition for which it is cited. The matter, however, is of little practical importance. NOTE XXXI. (to Articles 77 & 78.) The learning as to exemplifications and office-copies will be found in the following authorities : Gilbert's Law of Evidence, 1 1-20 ; Buller, Notes.] THE LAW OF EVIDENCE. 373 Nisi Prius, 228, and following ; Starkie, 256-66 (fully and very con- veniently) ; 2 Ph. Ev. 196-200; T. E. ss. 1380-4; R. N. P. 1 12-15. The second paragraph of Article 77 is founded on Appletoti v. Bray- brook, 6 M. & S. 39. As to exemplifications not under the Great Seal, it is remarkable that the Judicature Acts give no Seal to the Supreme Court, or the High Court, or any of its divisions. NOTE XXXII. (to Article 90.) The distinction between this and the following Article is, that Arti- cle 90 defines the cases in which documents are exclusive evidence of the transactions which they embody, while Article 91 deals with the interpretation of documents by oral evidence. The two subjects are so closely connected together, that they are not usually treated as distinct ; but they are so in fact. A and B make a contract of marine insurance on goods, and reduce it to writing. They verbally agree that the goods are not to be shipped in a particular ship, though the contract makes no such reservation. They leave unnoticed a con- dition usually understood in the business of insurance, and they make use of a technical expression, the meaning of which is not commonly known. The law does not permit oral evidence to be given of the exception as to the particular ship. It does permit oral evidence to be given to annex the condition ; and thus far it decides that for one purpose the document shall, and that for another it shall not, be re- garded as exclusive evidence of the terms of the actual agreement between the parties. It also allows the technical term to be ex- plained, and in doing so it interprets the meaning of the document itself. The two operations are obviously different, and their proper performance depends upon different principles. The first depends upon the principle that the object of reducing transactions to a writ- ten form is to take security against bad faith or bad memory, for which reason a writing is presumed as a general rule to embody the 374 A DIGEST OF [Notes. final and considered determination of the parties to it. The second depends on a consideration of the imperfections of language, and of the inadequate manner in which people adjust their words to the facts to which they apply. The rules themselves are not, I think, difficult either to state, to un- derstand, or to remember ; but they are by no means easy to apply, inasmuch as from the nature of the case an enormous number of trans- actions fall close on one side or the other of most of them. Hence the exposition of these rules, and the abridgment of all the illus- trations of them which have occurred in practice, occupy a very large space in the different text writers. They will be found in 2 Ph. Ev. 332-424; T. E. ss. 1031-1110; Stark. 648-731; Best (very shortly and imperfectly), ss. 226-229; R. N. P. (an immense list of cases), 17-35. As to paragraph (4), which is founded on the case of Goss v. Lord Nugent, it is to be observed that the paragraph is purposely so drawn as not to touch the question of the effect of the Statute of Frauds. It was held in effect in Goss v. Lord Nugent that if by reason of the Statute of Frauds the substituted contract could not be enforced, it would not have the effect of waiving part of the original contract; but it seems the better opinion that a verbal rescission of a contract good under the Statute of Frauds would be good. See Noble v. Ward, L. R. 2 Ex. 135, and Pollock on Contracts, 411, note (6). A contract by deed can be released only by deed, and this case also would fall within the proviso to paragraph (4). The cases given in the Illustrations will be found to mark sufficiently the various rules stated. As to paragraph (5) a very large collection of cases will be found in the notes to Wigglesworth v. Dallison, 1 S. L. C. 598-628, but the consideration of them appears to belong rather to mercantile law than to the Law of Evidence. For instance, the question what stipulations are consistent with, and what are contra- dictory to, the contract formed by subscribing a bill of exchange, or the contract between an insurer and an underwriter, are not questions of the Law of Evidence. Notes.] THE LAW OF EVIDENCE. 375 NOTE XXXIII. (to Article 91.) Perhaps the subject-matter of this Article does not fall strictly within the Law of Evidence, but it is generally considered to do so ; and as it has always been treated as a branch of the subject, I have thought it best to deal with it. The general authorities for the propositions in the text are the same as those specified in the last note ; but the great authority on the sub- ject is the work of Vice-Chancellor Wigram on Extrinsic Evidence. Article 91, indeed, will be found, on examination, to differ from the six propositions of Vice-Chancellor Wigram only in its arrangement and form of expression, and in the fact that it is not restricted to wills. It will, I think, be found, on examination, that every case cited by the Vice-Chancellor might be used as an illustration of one or the other of the propositions contained in it. It is difficult to justify the line drawn between the rule as to cases in which evidence of expressions of intention is admitted and cases in which it is rejected (paragraph 7, Illustrations (k), (/), and paragraph 8, Illustration («)). When placed side by side, such cases as Doe v.His- cocks (Illustration (/£)) and Doe v. Needs (Illustration («)) produce a singular effect. The vagueness of the distinction between them is indicated by the case of Charter v. Charter, L. R. 2 P. & D. 315.- In this case the testator Forster Charter appointed "my son Forster Charter" his executor. He had two sons, William Forster Charter and Charles Charter, and many circumstances pointed to the conclu- sion that the person whom the testator wished to be his executor was Charles Charter. Lord Penzance not only admitted evidence of all the circumstances of the case, but expressed an opinion (p. 319) that, if it were necessary, evidence of declarations of intention might be admitted under the rule laid down by Lord Abinger in Hiscocks v. Hiscocks, be- cause part of the language employed (" my son Charter ") applied correctly to each son, and the remainder, " Forster," to neither. This mode of construing the rule would admit evidence of declarations of 376 A DIGEST OF [Notes. intention both in cases falling under paragraph 8, and in cases falling under paragraph 7, which is inconsistent not only with the reasoning in the judgment, but with the actual decision in Doe v. Hiscocks. It is also inconsistent with the principles of the judgment in the later case of Allgoodv. Blake, L. R. 8 Ex. 160, where the rule is stated by Black- burn, J., as follows: — "In construing a will, the court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to de- clare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words." After quoting Wigram on Extrinsic Evidence, and Doe v. Hiscocks, he adds : " No doubt, in many cases the testator has, for the moment, forgotten or overlooked the material facts and circumstances which he well knew. And the consequence sometimes is that he uses words which express an intention which he would not have wished to express, and would have altered if he had been reminded of the facts and circumstances. But the court is to construe the will as made by the testator, not to make a will for him ; and therefore it is bound to execute his ex- pressed intention, even if there is great reason to believe that he has by blunder expressed what he did not mean." The part of Lord Penzance's judgment above referred to was unanimously overruled in the House of Lords ; though the court, being equally divided as to the construction of the will, refused to reverse the judgment, upon the principle " pro?snmitur pro negante." Conclusive as the authorities upon the subject are, it may not, per- haps, be presumptuous to express a doubt whether the conflict be- tween a natural wish to fulfill the intention which the testator would have formed if he had recollected all the circumstances of the case; the wish to avoid the evil of permitting written instruments to be varied by oral evidence ; and the wish to give effect to wills, has not produced in practice an illogical compromise. The strictly logical course, I think, would be either to admit declarations of intention Notes.] THE LAW OF EVIDENCE. 377 both in cases falling under paragraph 7, and in cases falling under paragraph 8, or to exclude such evidence in both classes of cases, and to hold void for uncertainty every bequest or devise which was shown to be uncertain in its application to facts. Such a decision as that in Stringer v. Gardiner, the result of which was to give a legacy to a person whom the testator had no wish to benefit, and who was not either named or described in his will, appears to me to be a practical refutation of the principle or rule on which it is based. Of course every document, whatever, must to some extent be inter- preted by circumstances. However accurate and detailed a descrip- tion of things and persons may be, oral evidence is always wanted to show that persons and things answering the description exist ; and therefore in every case whatever, every fact must be allowed to be proved to which the document does, or probably may, refer; but if more evidence than this is admitted, if the court may look at circum- stances which affect the probability that the testator would form this intention or that, why should declarations of intention be excluded ? If the question is, " What did the testator say ? " why should the court look at the circumstances that he lived with Charles, and was on bad terms with William ? How can any amount of evidence to show that the testator intended to write " Charles " show that what he did write means "Charles"? To say that " Forster " means "Charles" is like saying that " two " means " three." If the question is, " What did the testator wish ? " why should the court refuse to look at his declarations of intention ? And what third question can be asked ? The only one which can be suggested is, " What would the testator have meant if he had deliberately used unmeaning words?" The only answer to this would be, he would have had no meaning, and would have said nothing, and his bequest should be pro tanto void. NOTE XXXIV. (to Article 92.) See 2 Ph. Ev. 364; Stark. 726; T. E. (from Greenleaf), s. 1051. Various cases are quoted by these writers in support of the first par* 378 A DIGEST OF [Notes. of the proposition in the Article ; but 7?. v. Cheadle is the only one which appears to me to come quite up to it. They are all settlement cases. NOTE XXXV. (to Chapter XTII.) In this and the following Chapter many matters usually introduced into treatises on evidence are omitted, because they appear to belong either to the subject of pleading, or to different branches of Substan- tive Law. For instance, the rules as to the burden of proof of nega- tive averments in criminal cases (i Ph. Ev. 555, etc.; 3 Russ. Cri. 276-9) belong rather to criminal procedure than to evidence. Again, in every branch of Substantive Law there are presumptions, more or less numerous and important, which can be understood only in con- nection with those branches of the law. Such are the presumptions as to the ownership of property, as to consideration for a bill of ex- change, as to many of the incidents of the contract of insurance. Passing over all these, I have embodied in Chapter XIV. those pre- sumptions only which bear upon the proof of facts likely to be proved on a great variety of different occasions, and those estoppels only which arise out of matters of fact, as distinguished from those which arise upon deeds or judgments. NOTE XXXVI. (to Article 94.) The presumption of innocence belongs principally to the Criminal Law, though it has, as the Illustrations show, a bearing on the proof of ordinary facts. The question, "What doubts are reasonable in criminal cases ? " belongs to the Criminal Law. NOTE XXXVII. (to Article ioi.) The first part of this Article is meant to give the effect of the pre- sumption, omnia esse rite acta, 1 Ph. Ev. 480, etc.; T. E. ss. 124, etc.; Notes.] THE LAW OF EVIDENCE. 379 Best, s. 353, etc. This, like all presumptions, is a very vague and fluid rule at best, and is applied to a great variety of different subject- matters. NOTE XXXVIII. (to Articles 102-105.) These Articles embody the principal cases of estoppels in pais, as distinguished from estoppels by deed and by record. As they may be applied in a great variety of ways and to infinitely various circum- stances, the application of these rules has involved a good deal of de- tail. The rules themselves appear clearly enough on a careful exam- ination of the cases. The latest and most extensive collection of cases is to be seen in 2 S. L. C. 851-880, where the cases referred to in the text and many others are abstracted. See, too, 1 Ph. Ev. 350-3 ; T. E. ss. 88-90, 776, 778 ; Best, s. 543. Article 102 contains the rule in Bickard v. Sears, 6 A. & E. 474, as interpreted and limited by Parke, B., in Freeman v. Cooke, 6 Bing. 174, 179. The second paragraph of the Article is founded on the application of this rule to the case of a negligent act caus- ing fraud. The rule, as expressed, is collected from a comparison of the following cases : Bank of Ireland v. Evans, 5 H. L. C. 389 ; Swan v. British a7id Australasian Company, which was before three courts, see 7 C. B. (N. S.) 448; 7 H. & N. 603; 2 H. & C. 175, where the judgment of the majority of the Court of Exchequer was reversed ; and Halifax Guardians v. Wheelwright, L. R. 10 Ex. 183, in which all the cases are referred to. All of these refer to Young v. Grote (4 Bing. 253), and its authority has always been upheld, though not always on the same ground. The rules on this subject are stated in general terms in Carr v. L. &> N. IV. Railway, L. R. 10 C. P. 316-17. It would be difficult to find a better illustration of the gradual way in which the judges construct rules of evidence, as circumstances require it, than is afforded by a study of these cases. 380 A DIGEST OF [Notes. NOTE XXXIX. (to Chapter XV.) The law as to the competency of witnesses was formerly the most, or nearly the most, important and extensive branch of the Law of Evi- dence. Indeed, rules as to the incompetency of witnesses, as to the proof of documents, and as to the proof of some particular issues, are nearly the only rules of evidence treated of in the older authorities. Great part of Bentham's ' Rationale of Judicial Evidence ' is directed to an exposure of the fundamentally erroneous nature of the theory upon which these rules were founded ; and his attack upon them has met with a success so nearly complete that it has itself become obso- lete. The history of the subject is to be found in Mr. Best's work, book i. part i. ch. ii. ss. 132-188. See, too, T. E. ss. 1210-57, and R. N. P. 177-81. As to the old law, see 1 Ph. Ev. 1, 104. NOTE XL. (to Article 107.) The authorities for the first paragraph are given at great length in Best, ss. 146-165. See, too, T. E. s. 1240. As to paragraph 2, see Best, s. 148; 1 Ph. Ev. 7 ; 2 Ph. Ev. 457; T. E. s. 1241. The con- cluding words of the last paragraph are framed with reference to the alteration in the law as to the competency of witnesses made by 32 & 33 Vict. c. 68, s. 4. 1 The practice of insisting on a child's belief in punishment in a future state for lying, as a condition of the admissi- bility of its evidence, leads to anecdotes and to scenes little calculated to increase respect either for religion or for the administration of jus- tice. The statute referred to would seem to render this unnecessary. If a person who deliberately and advisedly rejects all belief in God and a future state is a competent witness, a fortiori, a child who has received no instructions on the subject must be competent also. 1 Now (1893) repealed by the Oaths Act, ii Notes.] THE LAW OF EVIDENCE. 381 NOTE XLI. (to Article 108.) At Common Law the parties and their husbands and wives were in- competent in all cases. This incompetency was removed as to the parties in civil, but not in criminal cases, by 14 & 15 Vict. c. 99, s. 2 ; and as to their husbands and wives, by 16 & 17 Vict. c. 83, ss. 1, 2. But sec. 2 expressly reserved the Common Law as to criminal cases and proceedings instituted in consequence of adultery. The words relating to adultery were repealed by 32 & 33 Vict, c.68, s. 3, which is the authority for Article 109. Persons interested and persons who had been convicted of certain crimes were also' incompetent witnesses, but their incompetency was removed by 6 & 7 Vict. c. 85. The text thus represents the effect of the Common Law as varied by four distinct statutory enactments. NOTE XLIL (to Article hi.) The cases on which these Articles are founded are only Nisi Prius decisions; but as they are quoted by \vr ers of eminence (1 Ph. Ev. 139; T. E. s. 859), I have referred to them. In the trial of Lord Thanet, for an attempt to rescue Arthur O'Con- nor, Sergeant Shepherd, one of the special commissioners, before whom the riot took place in court at Maidstone, gave evidence, R. v. Lord Thanet, 27 S. T. 836. I have myself been called as a witness on a trial for perjury to prove what was said before me when sitting as an arbitrator. The trial took place before Mr. Justice Hayes at York, in 1869. As to the case of an advocate giving evidence in the course of a trial in which he is professionally engaged, see several cases cited and discussed in Best, ss. 184-6. In addition to those cases, reference may be made to the trial of 382 A DIGEST OF TNotes. Home Tooke for a libel in 1777, when he proposed to call the Attor- ney-General (Lord Thurlow), 20 S. T. 740. These cases do not appear to show more than that, as a rule, it is for obvious reasons improper that those who conduct a case as advocates should "be called as witnesses in it. Cases, however, might occur in which it might be absolutely necessary to do so. For instance, a solicitor engaged as an advocate might, not at all improperly, be the attesting witness to a deed or will. NOTE XLIII. (to Article 115.) This Article sums up the rule as to professional communications, every part of which is explained at great length, and to much the same effect, in 1 Ph. Ev. 105-122; T. E. ss. 832-9; Best, s. 581. It is so well established and so plain in itself that it requires only negative illustrations. It is stated at length by Lord Brougham in Greenough v. Gaskell, 1 M. & K. 98. The last leading case on the subject is R. v. Cox &* Railton, 14 Q. B. D. 153. Leges Henrici Primi, v. 17: "Caveat sacerdos ne de hiis qui ei confitentur peccata alicui recitet quod ei confessus est, non propinquis, non extraneis. Quod si fecerit deponetur et omnibus diebus vitas suae ignominiosus peregrinando pceniteat." 1 M. 508. NOTE XLIV. (to Article 117.) The question whether clergymen, and particularly whether Roman Catholic priests, can be compelled to disclose confessions made to them professionally, has never been solemnly decided in England, though it is stated by the text. writers that they can. See 1 Ph. Ev. 109; T. E. ss. 837-8; R. N. P. 190; Starkie, 40. The question is dis- cussed at some length in Best, ss. 583-4 ; and a pamphlet was written to maintain the existence of the privilege by Mr. Baddeley in 1865. Mr, Best shows clearly that none of the decided cases are directly in Notes.] THE LAW OF EVIDENCE. 383 point, except Butler v. Moore (MacNally, 253-4), and possibly R. v. Sparkcs, which was cited by Garrow in arguing Du Barre v. Livctte before Lord Kenyon (1 Pea. 108). The report of his argument is in these words : "The prisoner, being a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted ; and that confession was permitted to be given in evidence on the trial" (before Buller, J.), "and he was convicted and executed." The report is of no value, resting as it does on Peake's note of Garrow's statement of a case in which he was probably not personally con- cerned ; and it does not appear how the objection was taken, or whether the matter was ever argued. Lord Kenyon, however, is said to have observed : " I should have paused before I admitted the evi- dence there admitted." Mr. Baddeley's argument is in a few words, that the privilege must have been recognized when the Roman Catholic religion was estab- lished by law, and that it has never been taken away. I think that the modern Law of Evidence is not so old as the Ref- ormation, but has grown up by the practice of the courts, and by de- cisions in the course of the last two centuries. It came into existence at a time when exceptions in favor of auricular confessions to Roman Catholic priests were not likely to be made. The general rule is that every person must testify to what he knows. An exception to the general rule has been established in regard to legal advisers, but there is nothing to show that it extends to clergymen, and it is usually so stated as not to include them. This is the ground on which the Irish Master of the Rolls (Sir Michael Smith) decided the case of Butler v. Moore, in 1802 (MacNally, Ev. 253-4). It was a demurrer to a rule to administer interrogatories to a Roman Catholic priest as to matter which he said he knew, if at all, professionally only. The Judge said, "It was the undoubted legal constitutional right of every subject of the realm who has a cause depending, to call upon a fellow- subject to testify what he may know of the matters in issue ; and every man is bound to make the discovery, unless specially exempted and protected by law, It was candidly admitted, that no special exemp- 384 A DIGEST OF [Notes. tion could be shown in the present instance, and analogous cases and principles alone were relied upon." The analogy, however, was not considered sufficiently strong. Several judges have, for obvious reasons, expressed the strongest disinclination to compel such a disclosure. Thus Best, C J., said, "I, for one, will never compel a clergyman to disclose communications made to him by a prisoner ; but if he chooses to disclose them I shall receive them in evidence" {obiter, in Broad v. Pitt, 3 C. & P. 518). Alderson, B., thought (rather it would seem as a matter of good feel- ing than as a matter of positive law) that such evidence should not be given. R. v. Griffin, 6 Cox, 219. NOTE XLV. (to Articles 126, 127, 128.) These Articles relate to matters almost too familiar to require authority, as no one can watch the proceedings of any court of justice without seeing the rules laid down in them continually enforced. The subject is discussed at length in 2 Ph. Ev. pt. 2, chap. x. p. 456, etc.; T. E. s. 1258, etc.; see, too, Best, s. 631, etc. In respect to lead- ing questions it is said, "It is entirely a question for the presiding judge whether or not the examination is being conducted fairly." R. N. P. 182. NOTE XLVI. (to Article 129.) This Article states a practice which is now common, and which never was more strikingly illustrated than in the case referred to in the Illustration. But the practice which it represents is modern ; and I submit that it requires the qualification suggested in the text. I shall not believe, unless and until it is so decided upon solemn argument, that by the law of England a person who is .called to prove a minor fact, not really disputed, in a case nf little imDortance. Notes.] . THE LAW OF EVIDENCE. 385 thereby exposes himself to having every transaction of his past life, however private, inquired into by persons who may wish to serve the basest purposes of fraud or revenge by doing so. Suppose, for in- stance, a medical man were called to prove the fact that a slight wound had been inflicted, and been attended to by him, would it be lawful, under pretence of testing his credit, to compel him to answer upon oath a series of questions as to his private affairs, extending over many years, and tending to expose transactions of the most delicate and secret kind, in which the fortune and character of other persons might be involved ? If this is the law, it should be altered. The following section of the Indian Evidence Act (1 of 1872) may perhaps be deserving of consideration. After authorizing, in sec. 147, questions as to the credit of the witness, the Act proceeds as follows in sec. 148 : — " If any such question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the wit- ness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising this dis- cretion, the court shall have regard to the following considerations: — "(1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies. "(2) Such questions are improper if the imputation which they con- vey relates to matters so remote in time or of such a character that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies. "(3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence." Order xxxvi., Rule 38, expressly gives the judge a discretion which was much wanted, and which I believe he always possessed- 3 86 A DIGEST OF [Notes. NOTE XLVII. (to Article 131.) The words of the two sections of 17 & 18 Vict. c. 125, meant to be represented by this Article, are as follows : — 22. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the opinion of the judge, prove adverse, contra- dict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony ; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. 23. If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the cause, and incon- sistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it ; but before such proof can be given, the circumstances of the sup- posed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. The sections are obviously ill-arranged ; but apart from this, s. 22 is so worded as to suggest a doubt whether a party to an action has a right to contradict a witness called by himself whose testimony is ad- verse to his interests. The words "he may, in case the witness shall, in the opinion of the judge, prove adverse, contradict him by other evidence," suggest that he cannot do so unless the judge is_of that opinion. This is not, and never was, the law. In Greenough v. Ec- cles, 5 C. B. ( N. S.) p. 802, Williams, J., says : " The law was clear that you might not discredit your own witness by general evidence of bad character; but you might, nevertheless, contradict him by other evi- dence relevant to the issue ; " and he adds (p. 803): " It is impossible to suppose that the Legislature could have really intended to impose Notes.] THE LAW OF EVIDENCE. 387 any fetter whatever on the right of a party to contradict his own wit- ness by other evidence relevant to the issue, — a right not only estab- lished by authority, but founded on the plainest good sense." Lord Chief Justice Cockburn said of the 22nd section : "There has been a great blunder in the drawing of it, and on the part of those who adopted it." ..." Perhaps the better course is to consider the second branch of the section as altogether superfluous and useless (p. 806)." On this authority I have omitted it. For many years before the Common Law Procedure Act of 1854 it was held, in accordance with Queen Caroline's Case (2 B. & B. 286-291), that a witness could not be cross-examined as to statements made in writing, unless the writing had been first proved. The effect of this rule in criminal cases was that a witness could not be cross- examined as to what he had said before the magistrates without put- ting in his deposition, and this gave the prosecuting counsel the reply. Upon this subject rules of practice were issued by the judges in 1837, when the Prisoner's Counsel Act came into operation. The rules are published in 7 C. & P. 676. They would appear to have been super- seded by the 28 Vict. c. 18. NOTE XLVIII. The Statute Law relating to the subject of evidence may be re- garded either as voluminous or not, according to the view taken of the extent of the subject. The number of statutes classified under the head "Evidence" in Chitty's Statutes is 35. The number referred to under that head in the Index to the Revised Statutes is 39. Many of these, however, re- late only to the proof of particular documents, or matters of fact which may become material under special circumstances. Of these I have noticed a few, which, for various reasons, appear important. Such are: 34 & 35 Vict. c. 112, s. 19 (see Article 11); 9 Geo. IV. c. 14, s. 1, amended by 19 & 20 Vict. c. 97, s. 13 (see Article 17) ; 9 Geo. IV. c. 14, s. 3 ; 3 & 4 Will. IV. c. 42 (see Article 28) ; 11 & 13 Vict. c. 42, s, 17 (Article 33) ; 30 & 31 Vict. c. 35, s. 6 (Article 388 A DIGEST OF [Notes. 34) ; 7 James I. c. 12 (Article 38) ; 7 & 8 Geo. IV. c. 28, s. 1 1, amended by 6 & 7 Will. IV. cm; 24 & 25 Vict. c. 96, s. 116; 24 & 25 Vict. c. 99, s. 37 (see Article 56) ; 8 & 9 Vict. c. io, s. 6 ; 35 & 36 Vict. c. 6, s. 4 (Article 121); 7 & 8 Will. III. c. 3, ss. 2-4; 39" & 40 Geo. III. c. 93 (Article 122). Many, again, refer to pleading and practice rather than evidence, in the sense in which I employ the word. Such are the Acts which enable evidence to be taken on commission if a witness is abroad, or relate to the administration of interrogatories. Those which relate directly to the subject of evidence as defined in the Introduction, are the ten following Acts : — 46 Geo. III. r. 37 (1 section ; see Article 120). This Act qualifies the rule that a witness is not bound to answer questions which crimi- nate himself, by declaring that he is not excused from answering questions which fix him with a civil liability. 6 & 7 Vict. c. 85. This Act abolishes incompetency from interest or crime (4 sections ; see Article 106). 8 & 9 Vict. c. 113: "An Act to facilitate the admission in evi- dence of certain official and other documents" (8 August, 1845; 7 sections). S. 1, after preamble reciting that many documents are, by various Acts, rendered admissible in proof of certain particulars if authenti- cated in a certain way, enacts inter alia that proof that they were so authenticated shall not be required if they purport to be so authenti- cated. (Article 79.) S. 2. Judicial notice to be taken of signatures of certain judges. (Article 58, latter part of clause 8.) Notes.] THE LAW OF EVIDENCE. 389 S. 3. Certain Acts of Parliament, proclamations, etc., may be proved by copies purporting to be Queen's printer's copies. (Article 81.) S. 4. Penalty for forgery, etc. This is omitted as belonging to the Criminal Law. * Ss. 5, 6, 7. Local extent and commencement of J^ct. 4- 14 & 15 Vict. c. 99: "An Act to amend the Law of Evidence," 7th August, 1851 (20 sections) : — S. 1 repeals part of 6 & 7 Vict. c. 85, which restricted the opera- tion of the Act. S. 2 makes parties admissible witnesses, except in certain cases. (Effect given in Articles 106 & 108.) S. 3. Persons accused of crime, and their husbands and wives, not to be competent. (Article 108.) S. 4. The first three sections not to apply to proceedings instituted in consequence of adultery. Repealed by 32 & 33 Vict. c. 68. (Effect of repeal, and of s. 3 of the last-named Act given in Article 109.) S. 5. None of the sections above mentioned to affect the Wills Act of 1838, 7 Will. IV. & 1 Vict. c. 26. (Omitted as part of the Law of Wills.) S. 6. The Common Law Courts authorized' to grant inspection of documents. (Omitted as part of the Law of Civil Procedure.) S. 7. Mode of proving proclamations, treaties, etc. (Article 84.) S. 8. Proof of qualification of apothecaries. (Omitted as part of the law relating to medical men.) Ss. 9, 10, 11. Documents admissible either in England or in Ireland, or in the colonies, without proof of seal, etc., admissible in all. (Ar- ticle 80.) S. 12. Proof of registers of British ships. (Omitted as part of the law relating to shipping.) S. 13. Proof of previous convictions. (Omitted as belonging to Criminal Procedure.) S. 14. Certain documents provable by examined copies or copies purporting to be duly certifier!. ^Article 70, last paragraph.) 39Q A DIGEST OF [Notes. S. 15. Certifying false documents a misdemeanor. (Omitted as be- longing to Criminal Law.) S. 16. Who may administer oaths. (Article 125.) S. 17. Penalties for forging certain documents. (Omitted as be- longing to the Criminal Law.) S. 18. Act not to extend to Scotland. (Omitted.) S. 19. Meaning of the word " Colony." (Article 80, note 1.) S. 20. Commencement of Act. 5- 17 & 18 Vict. c. 125. The Common Law Procedure Act of 1854 contained several sections which altered the Law of Evidence. S. 22. How far a party may discredit his own witness. (Articles 131, 133; and see Note XLVII.) S. 23. Proof of contradictory statements by a witness under cross- examination. (Article 131.) S. 24. Cross-examination as to previous statements in writing. (Ar- ticle 132.) S. 25. Proof of previous conviction of a witness may be given. (Article 130 (1).) S. 26. Attesting witnesses need not be called unless writing re- quires attestation by law. (Article 72.) S. 27. Comparison of disputed handwritings. (Articles 49 and 52.) After several Acts, giving relief to Quakers, Moravians, and Separatists, who objected to take an oath, a general measure was passed for the same purpose in 1861. 24 & 25 Vict. c. 66 (1st August, 1861, 3 sections). (Repealed by the Oaths Act, 1888):— S. 1. Persons refusing to be sworn from conscientious motives may make a declaration in a given form. (Article 123.) XOTES.1 THE LAW OF EVIDENCE. 39i S. 2. Falsehood upon such a declaration punishable as perjury. (Do.) S. 3. Commencement of Act. 7- 28 Vict. c. 18 (9th May, 1865, 10 sections): — S. 1. Sections 3 — 8 to apply to all courts and causes, criminal as well as civil. S. 3. Re-enacts 17 & 18 Vict. c. 125, s. 22. S.4 S.5 S.6 S. 7 S. 8 s. 23. s. 24. s. 25. s. 26. s. 27. The effect of these sections is given in the Articles above referred to by not confining them to proceedings under the Common Law Pro- cedure Act, 1854. The rest of the Act refers to other subjects. 31 & 32 Vict. c. 27 (25th June, 1868, 6 sections): — S. 1. Short title. S. 2. Certain documents may be proved in particular ways. (Art. 83, and for schedule referred to, see note to the Article.) S. 3. The Act to be in force in the colonies. (Article 83.) S. 4. Punishment of forgery. (Omitted as forming part of the Criminal Law.) S. 5. Interpretation clauses embodied (where necessary) in Article S3- S.6. Act to be cumulative on Common Law. (Implied in Article 73-) 9- 32 & 33 Vict. c. 68 (9th August, 1869; 6 sections) :— S. 1. Repeals part of 14 & 15 Vict. c. 99, s. 4, and part of 16 & 17 3 Q2 A DIGEST OF ' [Notes. Vict. c. 83, s. 2. (The effect of this repeal is given in Article 109; and see Note XLI.) S. 2. Parties competent in actions for breach of promise of mar- riage, but must be corroborated. (See Articles 106 and 121.) S. 3. Husbands and wives competent in proceedings in consequence of adultery, but not to be compelled to answer certain questions. (Article 109.) S. 4. Atheists rendered competent witnesses. (Repealed by Oaths Act, 1888.) S. 5. Short title. S. 6. Act does not extend to Scotland. 10. 51 & 52 Vict. c. 46 (24th Dec, 1888; 7 sections) provides that every person objecting to being sworn and stating the ground of his objection to be his religious belief, or the want of any religious belief, may make an affirmation in the manner provided. (See Article 123.) These are the only Acts which deal with the Law of Evidence as I have defined it. It will be observed that they relate to three subjects only, — the competency of witnesses, the proof of certain classes of documents, and certain details in the practice of examining witnesses. These details are provided for twice over, namely, once in 17 & 18 Vict. c. 125, ss. 22-27, b otn inclusive, which concern civil proceedings only; and again in 28 Vict. c. 18, ss. 3-8, which re-enacts these pro- visions in relation to proceedings of every kind. Thus, when the Statute Law upon the subject of Evidence is sifted and put in its proper place as part of the general system, it appears to occupy a very subordinate position in it. The ten statutes above mentioned are the only ones which really form part of the Law of Evidence, and their effect is fully given in twenty 1 Articles of the Digest, some of which contain other matter besides. 1 1, 49, 52, 58, 72, 79, 80, 81, 83, 84, 106, 108, 109, 120, 121, 123. 125, 131, 132, 133- Notes.] THE LAW OF EVIDENCE. 393 [NOTE XLIX.] [The following are the original Articles 36, 37, and 38 of Mr. Stephen, transferred from the body of the work :] Article 36. entries in bankers' books. A copy of any entry in a banker's book must in all legal proceed- ings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded (even in favor of a party to a cause producing a copy of an entry in the book of his own bank.) x Such copies may be given in evidence only on the condition stated in Article 71 (/). The expression 'Bankers' books' includes ledgers, day books, cash books, account books, and all other books used in the ordinary busi- ness of the bank. The word "Bank" is restricted to banks which have duly made a return to the Commissioners of Inland Revenue, Savings banks certified under the Act relating to savings banks, and Post-office savings banks. The fact that any bank has duly made a return to the Commission- ers of Inland Revenue may be proved in any legal proceeding by the production of a copy of its return verified by the affidavit of a partner or officer of the bank, or by the production of a copy of a newspaper purporting to contain a copy of such return published by the Com- missioners of Inland Revenue. The fact that any such savings bank is certified under the Act re- lating to savings banks may be proved by an office or examined copy of its certificate. The fact that any such bank is a post-office savings bank may be proved by a certificate purporting to be under the hand of Her Majesty's Postmaster-General or one of the secretaries of the Post-Office. 2 1 Harding v. Williams, 14 Ch. D. 197 2 42 & 43 Vict. c. 2. 394 A DIGEST OF [Notes. Article 37. bankers not compellable to produce their books. A bank or officer of a bank is not, in any legal proceeding to which the bank is not a party, compellable to produce any banker's book, or to appear as a witness to prove the matters, transactions, and ac- counts therein recorded, unless by order of a judge of the High Court made for special cause (or by a County Court Judge in respect of ac- tions in his own court.) 1 Article 38. judge's powers as to bankers' books. On the application of any party to a legal proceeding, a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings. Such order may be made either with or without summoning the bank, or any other party, and must be served on the bank three clear days (exclusive of Sundays and Bank holidays) be- fore it is to be obeyed, unless the court otherwise directs. 2 [Upon this subject of bankers' books, Mr. Stephen says in Art. 71 (/), that secondary evidence is admissible, "when the document is an entry in a banker's book, proof of which is admissible under Article 36." He also adds : " In case (/) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been exam- ined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit. 42 & 43 Vict. c. 11, ss. 3, 5."] '42 & 43 Vict. c. 11. 2 42 & 43 Vict. c. ii, s. 7. See Davies v. White, 53 L. J., Q. B. D. 275; In re Marshfield, Marshfieldx. Ihitchings, 32 Ch. D. 499; Amott v. Hayes, 36 Ch. D. 731. Notes.] THE LAW OF EVIDENCE. 395 [NOTE L.] [The following are the portions of Articles 56 and 57, transferred from the body of the work :1 ' Article 56 [in part]. When any person gives evidence of his good character who — Being on his trial for any felony not punishable with death, has been previously convicted of felony ; 2 Or who, being upon his trial for any offence punishable under the Larceny Act, 1861, has been previously convicted of any felony, mis- demeanor, or offence punishable upon summary conviction ; 3 Or who, being upon his trial for any offence against the Coinage Offences Act, 1861, or any former Act relating to the coin, has been previously convicted of any offence against any such Act ; 4 The prosecutor may, in answer to such evidence of good character, give evidence of any such previous conviction, before the jury return their verdict for the offence for which the offender is being tried. 5 Article 57 [in part]. In actions for libel and slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant is not entitled on the trial to give evidence in chief with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plain- tiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence. 6 1 [See p. 159, notes 2 and 4, ante.'] ' 2 6 and 7 Will. IV. c. 1 1 1, referring to 7 & 8 Geo. IV. c. 28, s. 11. If "not punishable with death " means not so punishable at the time when 7 & 8 Geo. IV. c. 28 was passed (21 June, 1827), this narrows the effect of the Article considerably. 3 24 & 25 Vict. c. 96, s. 116. 4 24 & 25 Vict. c. 99, s. 37. 5 See each of the Acts above referred to. 6 Supreme Court Rules, Order xxxvi., Rule 37. 396 A DIGEST OF [Notes. [NOTE LI.] [The following are the original Articles 76, 80-84 of Mr. Stephen, transferred from the body of the work :] Article 76. general records of the realm. Any record, under the charge and superintendence of the Master of the Rolls for the time being, may be proved by a copy certified as a true and authentic copy by the deputy keeper of the records or one of the assistant record keepers, and purporting to be sealed or stamped with the seal of the Record Office. (1 & 2 Vict. c. 94, ss. 1, 12, 13.) Article 80. documents admissible throughout the queen's dominions. If by any law in force for the time being any document is admis- sible in evidence of any particular, either in courts of justice in Eng- land and Wales, or in courts of justice in Ireland, without proof of the seal, or stamp, or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same, that document is also admissible in evidence to the same extent and for the same purpose, without such proof as aforesaid, in any court or before any judge in any part of the Queen's dominions except Scotland. 1 Article 81. queen's printers' copies. The contents of Acts of Parliament, not being public Acts, may be proved by copies thereof purporting to be printed by the Queen's printers; The journals of either House of Parliament ; and 1 Consolidates 14 & 15 Vict. c. 99, ss. 9, 10, 11, 19. Sec. 9 provides that documents admissible in England shall be admissible in Ireland ; sec. 10 is the converse of 9; sec. 11 enacts that documents admissible in either shall be admissible in the " British Colonies ; " and sec. 19 de- fines the British Colonies as including India, the Channel Islands, the Isle of Man, and "all other possessions" of the British Crown, wheresoever and whatsoever. This cannot mean to include Scotland, though the literal sense of the words would perhaps extend to 't. Notes. THE LAW OF EVIDENCE. 397 Royal proclamations, may be proved by copies thereof purporting to be printed by the print- ers to the Crown or by the printers to either House of Parliament. 1 Article 82. proof of irish statutes. The copy of the statutes of the kingdom of Ireland enacted by the Parliament of the same prior to the union of the kingdoms of Great Britain and Ireland, and printed and published by the printer duly au- thorized by King George III. or any of his predecessors, is conclusive evidence of the contents of such statutes. 2 Article 83. proclamations, orders in council, etc. The contents of any proclamation, order, or regulation issued at any time by Her Majesty or by the Privy Council, and of any proclama- tion, order, or regulation issued at any time by or under the authority of any such department of the Government or officer as is mentioned in the first column of the note 3 hereto, may be proved in all or any of the modes hereinafter mentioned ; that is to say — (1) By the production of a copy of the Gazette purporting to con- tain such proclamation, order, or regulation : (2) By the production of a copy of such proclamation, order, or 1 8 & 9 Vict. c. 1 13, s. 3. Is there any difference between the Queen's printers and the printers to the Crown ? 2 41 Geo. III. c. 90, s. 9. 3 Column i. Column 2. Name of Department or Officer. The Commissioners of the Treas- ury. The Commissioners for executing the Office of Lord High Ad- miral. Secretaries of State. Names of Certifying Officers. Any Commissioner, Secretary, or Assistant Secretary of the Treas- ury. Any of the Commissioners for ex- ecuting the Office of Lord High Admiral or either of the Secre- taries to the said Commissioners. Any Secretary or Under-Secretary of State. 398 A DIGEST OF [Notes. regulation purporting to be printed by the Government printer, or, where the question arises in a court in any British colony or posses- sion, of a copy purporting to be printed under the authority of the legislature of such British colony or possession : (3) By the production, in the case of any proclamation, order, or regulation issued by Her Majesty or by the Privy Council, of a copy or extract purporting to be certified to be true by the Clerk of the Privy Council or by any one of the Lords or others of the Privy Council, and, in the case of any proclamation, order, or regulation issued by or under the authority of any of the said departments or officers, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said note in connection with such department or officer. Any copy or extract made under th^is provision may be in print or in writing, or partly in print and partly in writing. No proof is required of the handwriting or official position of any person certifying, in pursuance of this provision, to the truth of any copy of or extract from any proclamation, order, or regulation. 1 Subject to any law that may be from time to time made by the legislature of any British colony or possession, this provision is in force in every such colony and possession. 2 Where any enactment, whether passed before or after June, 1882, Committee of Privy Council for Trade. The Poor Law Board. The Postmaster-General. (Schedule to 31 & 32 Vict. c. 37. '31 & 32 Vict. c. 37, s. 2. Any Member of the Committee of Privy Council for Trade or any Secretary or Assistant Secretary of the said Committee. Any Commissioners of the Poor Law Board or any Secretary or Assistant Secretary of the said Board. Any Secretary or Assistant Secre- tary of the Post-Office (33 & 34 Vict. c. 79, s. 21). See also 34 & 35 Vict. c. 70, s. 5.) 2 Ibid. s. 3. Notes.] THE LAW OF EVIDENCE. 399 provides that a copy of any Act of Parliament, proclamation, order, regulation, rule, warrant, circular, list, gazette, or document, shall be conclusive evidence, or be evidence, or have any other effect when purporting to be printed by the government printer, or the Queen's printer, or a printer authorized by her Majesty, or otherwise under her Majesty's authority, whatever may be the precise expression used, such copy shall also be conclusive evidence, or evidence, or have the said effect, as the case may be, if it purports to be printed under the superintendence or authority of her Majesty's Stationery Office. 1 Article 84. foreign and colonial acts of state, judgments, etc. All proclamations, treaties, and other acts of state of any foreign state, or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such court, may be proved either by examined copies or by copies authenticated as hereinafter men- tioned ; that is to say — ■ If the document sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state or British possession to which the original document belongs ; And if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign court, in any British possession, or an affidavit, pleading, or other legal document filed or deposited in any such court, the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or other court to which the original document belongs, or, in the event of such court having no seal, to be signed by the judge, or, if there be more than one judge, by any one of the judges of the 1 45 Vict. c. 9, s. 2. Documentary Evidence Act, 1882. Sect. 4 ex- tends the Act of 1868 to Ireland. 400 A DIGEST OF [Notes. said court, and such judge must attach to his signature a statement in writing on the said copy that the court whereof he is a judge has no seal ; If any of the aforesaid authenticated copies purports to be sealed or signed as hereinbefore mentioned, it is admissible in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement. 1 Colonial laws assented to by the governors of colonies, and bills re- served by the governors of such colonies for the signification of her Majesty's pleasure, and the fact (as the case may be) that such law has been duly and properly passed and assented to, or that such bill has been duly and properly passed and presented to the governor, may be proved (prwia facie) by a copy certified by the clerk or other proper officer of the legislative body of the colony to be a true copy of any such law or bill. Any proclamation purporting to be published by authority of the governor in any newspaper in the colony to which such law or bill relates, and signifying her Majesty's disallowance of any such colonial law, or her Majesty's assent to any such reserved bill, is prima facie proof of such disallowance or assent." [NOTE LIL] [The following are portions of Article 108 and of Article 113, and also (in full) Articles 108 A and 108 B, transferred from the body of the work :] s 1 14 & 15 Vict. c. 09, s. 7. 2 28 & 29 Vict. c. 63, s. 6. "Colony" in this paragraph means "all her Majesty's possessions abroad" having a legislature, "except the Channel Islands, the Isle of Man, and India." "Colony" in the rest of the Article includes those places. 3 [See p. 277, note 2, and p. 283, note 2, ante.] Notes.] THE LAW OF EVIDENCE. 401 Article 108 [in part]. In any such criminal proceeding against a husband or a wife, as is authorized by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75, ss. 12 and 16), the husband and wife respectively are competent and admissible witnesses, and except when defendant compellable to give evidence. 1 The following proceedings at law are not criminal within the meaning of this Article : — Trials of indictments for the non-repair of public highways or bridges, or for nuisances to any public highway, river, or bridge ; 2 Proceedings instituted for the purpose of trying civil rights only ; 2 Proceedings on the Revenue side of the Exchequer Division of the High Court of Justice. 3 Article 108 a. statutory exceptions to article 108. By the statutes referred to in the first column of the schedule hereto, the persons and the wives and husbands of the persons ac- cused of the offences specified in the second column are made com- petent witnesses upon their trials for such offences. 1 47 Vict. c. 14 ; and see the case of 7?. v. Brittleton, 12 Q. B. D. 266, which turns on the wording of the Act of 1882, and occasioned this enactment. The following doubt arises on the effect of this enact- ment. Does it mean (a) only that the wife is competent as against the husband, and the husband as against the wife, notwithstanding their marriage, or (b) that in such cases not only the prosecutor, though married to the prisoner, but the prisoner, though prisoner and though married, is to be competent, though the prisoner is not to be compellable? It is observable that the first "husband and wife" does not become " wife or husband " before the word " respectively," as would have been natural. It is also remarkable that in the Act of 1882 a criminal proceeding is described as " a remedy," — a very peculiar phrase. 2 40 & 41 Vict. c. 14. 3 28 & 29 Vict. c. 104, s. 34. 402 A DIGEST OF [Notes. The Schedule. Indictable Offences. 38 & 39 Vict. c. 86, s. 11. Con- spiracy and Protection of Prop- erty Act, 1875. 39 & 40 Vict. c. 80, ss. 3 & 4. Merchant Shipping Act, 1876. 40 & 41 Vict. c. 14. Amending Law of Evidence. 46 Vict. c. 83. The Explosive Substances Act, 1883. 46 & 47 Vict. C. 51, s. 53. Cor- rupt and Illegal Practices Pre- vention Act, 1883. Sect. 4. Wilful and malicious breach of contract relating to gas or water. Sect. 5. Wilful and malicious breach of contract, involving injury to person or property. Sect. 6. Master neglecting to provide servant or apprentice with food, &c. Sect. 4. Sending an unseaworthy ship to sea. Master of a British ship knowingly taking an un- seaworthy ship to sea. Sect. 1. Non-repair of any public highway or bridge, nuisances to public highways, rivers or bridges, and defendants to any indictment instituted for the purpose of trying a civil right only. Sect. 3. Possession of explosive substances under suspicious cir- cumstances. (The prisoner is not a 'competent witness in a charge under s. 2 or's. 3 ) Any prosecution for any offence under this Act. (These offences may be summary.) Notes.] THE LAW OF EVIDENCE. 403 48 & 49 Vict. c. 69, s. 20. Crim- inal Law Amendment Act, 1885. 50 & 51 Vict. c. 28, s. 10. Mer- chandise Marks Act, 1887. 50 & 51 Vict. c. 58, s. 62, sub-s. (ii.). Coal Mines Regulation Act, 1887. 52 & 53 Vict. C. 44, s. 7. Preven- tion of Cruelty to and Protec- tion of Children Act, 1889. 55 Vict. c. 4, s. 6. Betting and Loans (Infants) Act, 1892. Makes parties and their wives competent witnesses in any of the following cases : 1. Offences under the Act it- self : abusing girls under 16 or children : keeping brothels: indecent behav- ior in certain cases, &c. 2. 24 & 25 Vict. c. 100, s. 48, rape ; s. 52, indecent as- sault ; s. 53, abduction of heiress ; s. 54, forcible ab- duction ; s. 55, abduction of girl under 16. N. B. — An assault with intent to ravish is not within the Act. Any offence against this Act. (These offences may be sum- mary.) Any person charged with an offence under this Act may be sworn and examined as an ordi- nary witness in the case. (The Act does not mention the wives or husbands of persons charged. Offences under the Act may be summary.) In any proceeding under this Act the person charged and the wife and husband are competent but not compellable witnesses, but the wife or husband "may be required to attend to give evi- dence." (These offences may be summary.) Any offence under this Act. (These offences may be sum- mary.) 404 A DIGEST OF [Notes. Summary Offences. 35 39 Vict. c. 17, s. 87 . . Metalliferous Mines Regulation Act. Licensing Act, 1872. Sale of Food and Drugs Act, 1875. Explosives Act, 1875. (These offences may be indictable.) Article 108 b. effect of evidence by accused person. When a prisoner is indicted for more misdemeanors than one, and is a competent witness upon one count and not upon another, and gives evidence, he may be convicted upon a count upon which he is not a competent witness. 1 Article 113 [in part]. A criminal prosecution by the Director of Public Prosecutions is a public prosecution, and the Director of Public Prosecutions cannot be required to say from whom he acquired information or what it was.' 2 [NOTE LIIL] [The following are portions of Article 121 and of Article 125, and also (in full) Article 123 A, transferred from the body of the work :] 3 Article 121 [in part]. No person can be convicted of an offence against Section 4 of the Criminal Law Amendment Act, 1885, upon the unsworn evidence of a 1 R. v. Owen, 20 Q. B. D. 829. The ground of this decision appears to have been that the prisoner's evidence, though inadmissible as evi- dence upon the count upon which he was convicted, might be regarded as a voluntary admission by him in the presence of the jury. See R. v. Paul, 25 Q. B. D. 202, in which R. v. Owen is considered and ex- plained. • Marks v. Bey/us, 25 Q B. D. 494. 3 [See p. 300, note 2, p. 306, note 1, and p. 310, note 1, ante.] Notes.] THE LAW OF EVIDENCE. 405 child of tender years, unless such unsworn evidence is corroborated by material evidence implicating the accused. 1 Article 123A. UNSWORN EVIDENCE OF YOUNG CHILD. Where, upon the hearing of a charge under Section 4 of the Criminal Law Amendment Act, 1885, a child of tender years who is tendered as a witness does not, in the opinion of the court, under- stand the nature of an oath, the evidence of such child may be re- ceived, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth ; 2 ■ Provided, that no person can be convicted in such a case unless such unsworn evidence is corroborated by other material evidence implicating the accused. 2 Any witness whose evidence, not under oath, has been admitted as mentioned in this Article is liable to indictment and punishment for perjury in all respects as if he or she had been sworn. 8 If evidence not under oath is given under the provisions stated in this Article, and the charge is one of felony, the prisoner may be convicted under section 9 of the Criminal Law Amendment Act, 1885, of an offence 3 in respect of which such unsworn evidence might not have been given. 4 If the charge is one of misdemeanor, the prisoner cannot be convicted of another misdemeanor, in respect of which such unsworn evidence might not have been given, if such other mis- demeanor was charged in another count of the indictment. 5 1 48 & 49 Vict. c. 69, s. 4. See Art. 123 A. 2 48 & 49 Vict. c. 69, s. 4. The offences under this section are, unlawfully and carnally knowing, and attempting unlawfully and carnally to know, any girl under thirteen. 3 These offences are, any offence under ss. 3, 4, 5 of the Criminal Law Amendment Act, 1885, and indecent assault. 4 R. v. Wealand, 20 Q. B. D. 827. 6 R.v.Paul, 25 Q. B. D. 202. It has not been expressly decided whether, upon an indictment in one count under s. 4 for attempting 4o6 THE LAW OF EVIDENCE. [Notes. Article 125 [in part]. [The paragraphs omitted from the original Article (see p. 310, ante) are as follows :] {c) Before any officer of the court or any other person or persons appointed for that purpose by the court or a judge under the Judica- ture Act, 1875, Order xxxvii. 5. Oral evidence taken upon a preliminary hearing may, in the cases specified in 11 & 12 Vict. c. 42, s. 17, 30 & 31 Vict. c. 35, s. 6, and 17 & 18 Vict. c. 104, s. 270, be recorded in the form of a deposition, which deposition may be used as documentary evidence of the matter stated therein in the cases and on the conditions specified in Chap- ter XVII. to have carnal knowledge of a girl under thirteen, where evidence has been given not upon oath, the prisoner may be convicted of in- decent assault, but it seems to be the logical result of R. v. Wealand and R. v. Paul that he might. INDEX. (The numbers refer to pages.) Abatement, judgment of, not a bar, 122. Abduction, corroboration required in prosecutions for, 301. Abortion, dying declarations in trials for, (50. Abbreviations, when judicially noticed, 171. explainable by parol evidence, 228. Acceptor of bill of exchange, estoppel of, 267. Accession of President, or other executive, judicially noticed, 16?. Accessory, how affected by judgment against principal felon, 134. Accident, provable by oral evidence to affect writing, 220. Accidental or intentional acts, distinguished by evidence of system, 49-53- Accomplice, testimony of, when requiring corroboration, 301, 302. nature of corroboration needed, 302. apparent accomplices need no corroboration, 302. turning State's evidence, confessions of, when provable, 78. must disclose confessions made to his attorney, 291, 292. Account rendered, correctness admitted by not objecting, 58. Acknowledged deed, proof of execution, 182, 185. weight of evidence required to impeach certificate of acknowledg- ment, 240. officer who took acknowledgment cannot impeach his certificate, 282. Acquiescence, effect of as admission, 25, 26, 58, 72. effect of as confession of crime, 15, 25, 27, 75. ^cts of Congress. (See Statute.) Acts of Parliament, recitals in as evidence, 112. (See Statute.) when public, judicially noticed, 164. not public, how proved, 396. Acts of state, proved by recitals in statutes, etc., 112. proof of, 206. proof of foreign, 146, 207, 399. Administrator, bound by admissions of intestate, 60. admissions of, 62, 69. 4 o8 INDEX. (The numbers refer to pages.) Administrator {continued). effect of judgment appointing, 1 19, 123. effect of appointing upon estate of living person, 119. judgment against one, not binding on another, 130. effect of judgment against, as to sureties on his bond, 132. party cannot testify against, as to transactions with decedent, 270. Admiralty Courts and their seals, judicially noticed, 168, 169. effect of judgments in, condemning ships as prize, 118, 127, 128. Admissions defined, 57, 361. statement raising a suspicion or conjecture is not an admission, 61. how proved, 57. no evidence required of facts admitted, 174. aliter, in trials for felony, 174. finding or judgment contrary to admissions in pleading, is error, 174. whole of admission to be brought out, 57, 64, 361. who may make, and when, 59-73. implied from acts and conduct, 57, 58. as from silent acquiescence, 25, 26, 58, 72. from not objecting to account rendered, 58. from tender of payment, 58. from act of landlord in making repairs, 58. entries in partnership books evidence against partner, 58. no admission implied from failure to answer a letter, 58. made incidentally, 58. made in pleadings or affidavits, or in giving former evidence, 58, 59.74, 174. judgment as an admission, 131, 134. oral admission not generally conclusive and to be received with caution, 58. when conclusive, 58. may be explained or shown to have been made by mistake, 58. of a nominal party, 59. of assignor after assignment, against assignee, 59. of assignee after assignment, 60. of a person interested in the event, 60. of deputy-sheriff as against sheriff, 60. of privies in blood, in law, or in estate, 60. of intestate competent against administrator, 60. of testator competent against executor, 6o, 63. of husband competent against widow claiming dower, 60. of ancestor competent against heir, 60. of grantor competent against grantee, 60, 63. INDEX. 409 (The numbers refer to pages.) Admissions (continued). of landlord competent against tenant, 60. but not of tenant against landlord, 60. of devisor competent against devisee, 60. of assignor of chattels, made before assignment, competent against assignee, 63. aliter, in New York as to assignments for value, 63. declarations of owner of land or chattels showing the char- acter of his possession, competent, 61, 62. not admissible in place of record evidence or to destroy a record title, 61. of party to a proceeding, 61. party's statements contradicting his testimony as a witness, relevant as admissions, 329. of person suing, or being sued, in a representative character, 61, 62. of executor or administrator, 62, 69. of guardian, 62. of agents and persons jointly interested with parties, 65, 66, 70, 362. of partners or joint debtors or contractors, 66, 67, 69, 71. effect of admissions after dissolution of partnership, 66, 67. effect as to the Statute of Limitations, 66, 67, 69. of husband and wife, 65, 70. of member or officer of corporation, 65. of inhabitant or officer of municipal corporation, 65. of attorneys and counsellors, 67, 68, 71. of persons having a common interest, 69, 71. of executor or administrator, as against co-executor or co- administrator, heirs, etc., 69. of one tenant in common as against another, 69. of one devisee or legatee as against another, 69. of co-defendants in tort cases, 69. of principal do not bind surety, 70, 71. of strangers, 72. of judgment debtor as against sheriff, 72. of bankrupt for or against assignee, 72. of person expressly referred to by party, 72, 73. by interpreter, 73. of person interested or privy must be made while interest con- tinues, 62, 64. of grantor before acquiring or after parting with possession, not competent against grantee, 62. so of assignor of chattels or choses in action, 62. but sometimes competent to show fraud as to creditors, 62, 63. Iio " INDEX. (The numbers refer to pages.) Admissions {continued). of assignor of personal property, made while his interest continues, not admissible against assignee in some States, 63. effect of when made "without prejudice" or in offers of com- promise, or under duress, 73, 74. by pleading a demurrer, effect of, 174. of contents of document, effect of, 178. of execution of document, effect of, 183. of loss of document, 188. of existence of marriage, 156. in writing, may be varied by oral evidence, 222. burden of proof to show admission, 251. Adultery, in trials for, woman's bad character for chastity provable, 340. letters between husband and wife, admissible to show state of feeling, 46, 47, 210. evidence of similar acts competent to show disposition, 45. provable, in action for divorce, by preponderance of evidence, 239. marriage not provable by cohabitation and repute, 156. competency of husband and wife as witnesses in proceedings for, 278. Advancement, deed shown to be by oral evidence, 221. Affairs of State, privilege of witness concerning, 282. Affidavits, when admissible as evidence, 309, 311, 312. admissions contained in, 58. confessions contained in, 83. statements on information and belief, when permissible in, 311. containing improper matter, by whom costs payable, 311, 312. objections to, when to be made, 312. Affirmation, when made by witness instead of taking an oath, 306, 307. Age, when a matter of pedigree, 104. personal appearance as evidence of, 104, 177. evidence of opinion concerning, 142. no presumption as to age at which a person died, 258. Agency, Agent. (See Principal and Agent.) Aldermen, judicially noticed, 168. Alibi, defence of, 7, 248. what proof required of, 248. burden of proof, on whom, 248, 251. Alien, effect of judgment, naturalizing, 120. Almanac, as evidence, 117, 173. Alteration of documents, presumptions as to, 214-218. when relevant to show fraud, 22. INDEX. 411 (The numbers refer to pages.) Alteration {continued). material alteration by party after execution avoids instrument, 214. if alteration innocent, recovery may be had on original con- sideration, 214. aliter, if alteration be fraudulent, 214. by mutual consent, does not avoid, 214. by a stranger, effect of, 215, 218. called a " spoliation," 215. of negotiable instrument avoids it in hands of innocent holder, 214. of ancient documents, 213. of deed, may avoid covenants, but does not divest title, 214. of deeds and other documents, when presumed to be made, 215-218. burden of proof to explain, 215-217. question as to time of making and by whom, etc., generally for jury, 215, 216. of will, when presumed to be made, 216, 217. what are material alterations, and what immaterial, 217, 218. materiality a question for the court, 218. immaterial alterations do not avoid, 218. aliter, in some States, if made by party, 218. filling blanks in documents, effect of, 218, 265, 266. Ambassadors, judicially noticed, 167. not bound to obey subpcena, 283. Ambiguity in documents, parol evidence to explain, 228, 229, 231, 235. (See Oral Evidence.) patent ambiguity, 228, 229. latent ambiguity, 231, 235, 375-377. Ancestor, admissions of bind heir, 60. Ancient deeds and wills, competency of as evidence, 102. presumption as to, 212-214. alteration of, 213. maps as evidence, 103, 115. Ancient lights, doctrine of, rejected in this country, 260. Animals, evidence of similar injuries to show scienter, 44. habit of, shown by similar acts, 50. Annuity tables, as evidence, 117. Ante litem motam, meaning of, 106. Appearance, by attorney, unauthorized, effect of judgment on, 138. of a person, as evidence of his age, 104, 177. evidence of opinion as to person's appearance, 142. Arbitrators, competency of as witnesses, 281. former testimony before them may be proved, 116. 412 INDEX. (The numbers refer to pages.) Arson, evidence of threats in trials for, 20. whether provable by evidence of repeated acts, 50, 51. proof of required as a defence in insurance cases, 51, 239, 241. presumption of guilt from recent possession of stolen goods, 245 Art, matters of, provable by opinion evidence, 144. Assault and battery, evidence of character irrelevant in actions for, 1G0. evidence of threats in trials for, 20. indecent, woman's bad character for chastity relevant, 161, 339. evidence of her connection with other men, 339. husband or wife may testify as to battery by the other, 276. Assignor and assignee of personal property or choses in action, ad- missions of. (See Admissions.) Atheists, competency of as witnesses, 272, 273. may affirm, instead of taking an oath, 306, 307. dying declarations of, 88, 341. Attachment suits, effect of judgments in, 127, 140. Attempt to escape or avoid arrest, when provable, 23. to commit rape, evidence of woman's complaints, 24. to commit former crimes, when relevant, 35. Attested documents, proof of execution of, 180-185, 213. (See Docu- ment ; Subscribing witness.) Attesting witness. (See Subscribing witness.) Attorney, admissions by, 67, 68, 71. stipulations of, binding on client, 68. authority to compromise suit, 68. book entries of deceased attorney, when admissible, 91. may testify to former testimony of deceased witness, no. unauthorized appearance of, judgment on, 138. liable for costs if affidavit drawn by him contains scandalous matter, 312. status and signature of, judicially noticed, 167. not producing client's document on notice, secondary evidence admissible, 187, 296. notice to produce maybe given to, 192, 296. must prove good faith as to dealings with client, 248, 254. competency of as witness in suit in which he is attorney, 282. privileged from testifying as to professional communications from client, 286-291. clerks and interpreters also privileged, 289, 290. but not a law student, not being clerk, 289, 290. nor a lawyer acting merely as conveyancer, 290. nor a solicitor of patents, 290. nor a person who is not an attorney, 290. INDEX. 413 (The numbers refer to pages.) Attorney {continued). nor officers of a corporation, 289, 290. client may waive the privilege, 287. what constitutes a waiver, 287. privilege does not cover communications to effect a crime or fraud, 288, 291. nor knowledge which attorney acquires by his own ob- servation, 289, 290. nor facts which he learns otherwise than as legal adviser, 288. nor communications not of a private nature, 289. nor facts of a collateral nature, 289, 296. communications made while all parties are present, not privi- leged in suits between themselves, 289. attorney may, in support of will, testify to directions given by testator, 289. client privileged from testifying as to communications to at- torney, 291, 292. but may waive the privilege, 291. an accomplice who turns State's evidence must disclose com- munications to his attorney, 291, 292. attorney only compellable to produce documents which client could be compelled to produce, 296. documents amounting to professional communications, privi- leged, 287, 296. so of documents which would tend to criminate client, 296, 297. Auditors, competency of, as witnesses, 281. power of, to take testimony, 310. Bad faith, provable by similar acts or declarations, 42. Bailee, estopped to deny bailor's title, 267, 268. but may show delivery of goods by him to real owner, 268. burden of proof in action by bailor against bailee for the value of goods entrusted to bailee, 245, 246. Bankers' books, competency of entries in, 117, 393. what are such books, 393. bankers not compellable to produce, 295, 394. judge's powers as to, 394. entries in, how proved, 394. Bankrupt, admissions of, 72. confessions of, 83. Banks, customs of judicially noticed, 165. 414 INDEX. (The numbers refer to pages.) Baptism, register of, admissibility of entries in, 94. Barrister, admissions by, 67, 68, 71. competency of as witness, 281, 282. privilege as to professional communications, 286-291. (See At- torney.) Bastardy, effect of judgment as to, 127. provable by preponderance of evidence, 240. proceedings, marriage provable by cohabitation and repute, 156. statements made by mother, when provable, 24, 256, 257. corroboration of mother's evidence, when required, 300, 301. . paternity, when provable by woman's evidence, 256, 340. when mother's connection with other men may be shown, 340. Belief, when witness may testify to his, 176. Bentham, influence of, in reforming law of evidence, xv., xvii., xxv. Bias, witness may be cross-examined as to facts showing, 322, 323. may be contradicted if he denies such facts, 325, 326. Bible, as evidence of pedigree, 107. Bigamy, in trials for, marriage not provable by cohabitation and re- pute, 156. the presumption of innocence as affected by the presumption of the continuance of life, 241, 249. Bill of exceptions, to prove testimony in former proceeding, 1 10. Bill of exchange, admissions of holder of, 64. indorsement of payment on, effect of as evidence, 96, 97. effect of judgment against indorser, 132. alteration of. (See Alteration.) filling blanks in, 218, 265, 266. presumption that indorsee acquired it bona fide for value, 244. burden of proof in action by indorsee against maker, 244. when in hands of acceptor, presumed to have been paid, 262. estoppel of acceptor, 267. whether party competent to testify that it was invalid in its incep- tion, 271. Bill of lading, receipt in, open to explanation, 222. shipmaster signing, when estopped to deny shipment, 268, 269. shipowner, whether bound by master's act, 269. Bill of sale, shown by oral evidence to be a mortgage, 221. Birth, as matter of pedigree, 104. Blanks in documents, effect of filling, 218, 265, 266. Bodily feelings, provable by similar acts or declarations, 42. expressions of, provable, 47, 48. Bond, indorsement of payment on, effect of as evidence, 96, 97. presumed paid after 20 years, 263. INDEX. 415 (The numbers refer to pages.) Bond {continued). official sureties on, when bound by judgment against principal, 132. Book entries, in partnership books evidence against partner, 58. made in course of business, admissibility of, 91-95. entries by deceased notaries, clerks, bank tellers, attorneys, physicians, etc., 91. handwriting of deceased person to be proved, 91. entries of insane or absent witness, 91, 93. books of original entry only admissible, 93. effect of transcribing charges, 93. made upon information given by others, 94. made by party himself, competency of, 92. how authenticated, 91. in public books and records, relevancy of, 94, 1 12, 113. in corporation books, 113, 114. in bank-books, 117, 393. Books, historical, medical, scientific, etc., as evidence, 114-116. price current lists, annuity tables, almanac, gazetteer, etc., 116, 117. reading law books and other books to jury, 1 16. Boundaries, public and private, declarations concerning, 61, 101, 102. of public highways, etc., 102, 103. provable by ancient maps, 115. of State or county, etc., judicially noticed, 170, 171. Breach of promise of marriage, woman's bad character for chastity provable, 161. corroboration of plaintiff's evidence, when required, 300, 301. Bribing of witness to go away, when provable, 22. of juror, when provable, 23. Burden of proof: rests on person asserting or denying a state of facts, 237, 250. general burden on party against whom, in the absence of evi- dence, judgment would be given, 242. or upon party against whom pleadings raise a presumption, 242, 248, 249. is on plaintiff when his cause of action is denied, in whole or in part, 242. even though his cause of action involves negative ave~ ments, 240, 241, 242. as in an action for malicious prosecution, 252. in proving a negative, plenary proof not required, 25*. is on defendant when he admits cause of action and sets up affirmative defence, 242. 416 INDEX. (The numbers refer to pages.) Burden of proof {continued). aliter, if action is for unliquidated damages, 242. party having burden has right to open and close the case, 242, 243. burden remains on him throughout the trial, 243. in criminal cases rests on the government, 243. meaning of "shifting of the burden," 243, 245, 246. party having burden must prove all material allegations, 244. may sometimes make out prima facie case by showing mere occurrence of injury (res ipsa loquitur), 243, 249, 250. in action by indorsee of negotiable instrument against maker, 244. in action by bailor against bailee for the value of the goods bailed, 245. 246. as to validity of will and testator's insanity in proceedings for pro- bate, 246. as to undue influence, affecting a will, 247. in criminal case, when defence of insanity is made, 247. how affected by presumption from the recent possession of stolen goods, 245. by the fact that parties stand in a fiduciary relation, 248, 253, 254. 304- by presumption of innocence as conflicting with the presump- tion of continuance of life, 241. in trials for crime, proof of guilt required beyond reasonable doubt, 237. so in proving statute to be unconstitutional, 240. meaning of reasonable doubt, 237, 238. in civil actions, only preponderance of evidence required, 238, 239. charge of crime in civil cases provable by a preponderance of evidence, 239. as in justifying a charge of crime in libel and slander cases, 239. aliter, in some States, 239. and in insurance cases involving charge of arson, 239. aliter, in England and some States, 239, 241. and in actions for selling liquor, stealing, fraud, commit- ting adultery, bastardy, etc., 239, 240. in some civil actions, evidence must be "clear, unequivocal, and convincing," 240. as to show deed to be a mortgage, 240. to reform deed, 240. to establish resulting trust, 240. ihdea. 4I7 (The numbers refer to pages.) Burden of proof {continued). to set aside instrument for fraud or mistake, 240. to sustain defence of usury, 240. to establish gift causa mortis, 240. to impeach acknowledgment of deed, 240. as to particular fact, 250. defendant must prove his affirmative defences, 250. as payment, usury, fraud, illegality, etc., 250. and the defences of insanity, or alibi, or self-defence, in criminal cases, 247, 248, 251. extent of proof required, 247, 248. in negligence suits, plaintiff proves defendant's negligence, and defendant that of plaintiff, 251. but in some States plaintiff must prove his own freedom from negligence, 252. one party must prove the other's admissions, 251. burden on person having special opportunities of knowledge, 251. person charged with acting without legal license must prove that he has one, 251. as to alteration of document, 215-217. burden on party introducing evidence to prove preliminary facts on which its admission depends, 253. burden as to confession, as being voluntary or involuntary, jj. burden of proving time of person's death who has been absent seven years unheard from, 257. Burglary, presumption of guilt from recent possession of stolen goods, 245. Business, course of. (See Course of Business.) usages of. (See Custom.) Cabinet officers, status of, judicially noticed, 167. not compellable to disclose state secrets, 283. Calendar, judicially noticed, 171. Carefulness, habit of, not provable in trial for negligence, 51. (See Negligence.) whether system or course of business may be shown to prove carefulness, 49, 50. Case, to prove testimony in former proceeding, no. Cause and effect, relevancy of facts to show, 5, 34, 352. Cause of action, not to be spilt, 120, 124, 125. burden of proof to establish. (See Burden of Proof.) Census, judicially noticed, 170. 418 INDEX. (The numbers refer to pages.) Certainty, moral, 237. Certificates, as evidence, 199, 200. (See Acknowledged Deed.) Certified copy of document, as evidence, 186, 198', 199, 200. Chancery, discovery in. (See Discovery.) judgments impeachable in courts of, for lack of jurisdiction or fraud, 137, 139. corroborative evidence in chancery suits, 305. (See Witness.) examiners in U. S. courts cannot pass on objections to testimony, 310. 3"- Character, evidence of, generally irrelevant, xix., 158. good or bad, in criminal cases, when relevant, 7, 158, 159, 395. presumed to continue, 261. in trials for rape, adultery, indecent assault, etc., woman's bad character for chastity provable, 337-339. aliler, if woman be under the age of legal consent, 339. character for quarrelsomeness, when provable, 20. means reputation as distinguished from disposition, 159, 161, 369. in civil cases, generally irrelevant, 159, 160. as in actions for assault and battery, 160. or upon a promissory note, 160. or for negligence, 160. or where fraud is charged, 160. or to rebut charge of crime, 160. in some civil actions, relevant, 160, 161. as in actions for libel or slander, 161. or for malicious prosecution, 161. or for criminal conversation, seduction, indecent assault, etc., 161, 339, 340. or to show master's knowledge of servant's incom- petency, 46, 160. of house, how provable, 50. of witness, when and how provable. (See Witness.) Charter of corporation, when judicially noticed, 163. Charts, statements in, when relevant, 114, 115. Chastity, character for. (See Character.) Chattel, value of, how provable, 36, 143. Chattel mortgage, bill of sale shown to be by parol evidence, 221. Check, liability of banker when sum payable is increased by forgery, 265, 266. Children, dying declarations of, 88. (See Parent and Child.) domicil of, how provable, 30. jury may judge of age by his appearance, 104, 177. rape upon, evidence of child's complaints, 24, 25. INDEX. 419 (The numbers refer to pages.) Children {continued). legitimacy of, presumed, 255. competency of as witnesses, 271-274, 380, 405. Circumstantial evidence, defined, 4. illustrations of, 29-32, 352, 353. proof of conspiracy by, 16. Cities, judicially noticed, 169. Civil actions, burden of proof in. (See Burden of Proof.) Civil divisions of State, judicially noticed, 169. also their relative positions, 170. Clergymen, privilege of as to confidential communications, 292, 293, 382. person confessing may waive the privilege, 292, 293. must prove good faith as to dealings with person confessing to them, 254. Clerks, of court, judicially noticed, 167. of merchants, notaries, etc., book entries of, 91. of lawyers, privileged from disclosing professional communica- tions, 289, 290. Cohabitation and repute, as evidence of marriage, 155, 156. Collateral facts, not relevant, 6. about documents, shown by oral evidence, 191, 224. Collateral documents, proof of contents of, 190. Collateral impeachment of judgments, 136-140. Colonial acts of state, proof of in English courts, 399. Commissioners, power of to take testimony, 310. Commissions to take depositions. (See Deposition.) Common law, of forum judicially noticed, 163. of other States and countries, how provable, 145. Communications, privileged. (See Privileged Communications.) Comparison of handwritings. (See Opinion, Evidence of.) Competency of evidence, 4. determined by judge, 4. of witnesses. (See Witness.) Complaints in cases of rape, evidence of. (See Rape.) Compromise, effects of offers of, as admissions, 73, 74. authority of attorney to compromise, 68. Concealment, of documents. (See Document.) of person to avoid arrest, 22. Conclusions of law, witness cannot testify to, 176. Conclusive proof, definition of, 4, 351. Conditions in documents, when provable by parol evidence, 222, 226. Conduct after an act, effect of as evidence, 23. statements affecting conduct provable. 25. 420 INDEX. (The numbers refer to pages.) Confession, judgment on is a bar, 122. Confessions, denned, 75. how different from admissions, 75. by silent acquiescence 15, 25, 27, 75. caused by inducement, threat, or promise, effect of, 76-82. extrajudicial must be corroborated by proof of corpus delicti, 75. 79- alitcr, as to judicial confession, 76. effect of plea of guilty, 76. whole confession to be brought out, 75. of co-conspirators, 15. of one of several defendants, effect of, 15, 76. admissibility of determined by judge, 77. when voluntary and when involuntary, 77-85. burden of proof as to confession being voluntary or involuntary, 77. grand jurors may testify as to confessions given before them, 286. effect of when made to person in authority, 77-82. to person not in authority, 79, 82. who is person in authority, 80. by prisoner in custody, 78. by accomplice who turns State's evidence, 78. effect of when made after impression of hope or fear is removed, 80, 82. facts discovered by means of involuntary confessions, when prov- able, 80, 82. effect of when made under oath, 82-84, 298, 363. upon preliminary examination before committing magistrate, 8 3 , 85. at coroner's inquest, 84. before grand jury, 84. effect of when made under promise of secrecy, 84. or when obtained by deception, 84. or by religious exhortations, 79, 81. or by collateral inducements, 79, 82. or by violence of mob, 79. when made by drunken person, 85. by person asleep, 85. by person in prayer, 85. or when made in answer to questions, 85. or when made without warning being given of the conse- quences, 85. Congress, acts of judicially noticed in State courts, 164. laws nf, how proved, 20J. INDEX. 421 (The numbers refer to pages.) Consideration of document, provable by parol, 221. want of, also so provable, 220, 221. Conspirators, acts and declarations of, when relevant, 14-16, 63, 355. confessions of, 15, 76. proof of conspiracy, 15, 16. Constitution, does not exclude evidence of dying declarations, 86, 87. nor evidence given in former proceeding, 109. prohibits seizure of private papers to criminate, 294. requires credit to be given to records of other States, 139, 201. Construction of documents. (See Interpretation and Construction of Documents ; Oral Evidence.) of foreign statute, shown by experts,l46. (See Opinion, Evidence of.) Consul, not bound to obey subpoena, 283. Contempt, of witness in disobeying subpoena, 193. Contract, written, how far modifiable by parol evidence. (See Oral Evidence.) made by telegrams, evidence of, 179. alteration of. (See Alteration.) effect of judgment against co-contractor, 131. Contradiction of witness, when allowed. (See Witness.) Conveyancers, privilege of as to professional communications, 290. Conviction for crime, as affecting competency of witness. (See Infa- mous Persons ; Witness.) Copy of document, as evidence of its contents; different kinds of copies. (See Document.) admissibility of copies to show handwriting, 153, 154. Coroner's inquest, confessions made at, 84. former testimony at, not admissible, ill. Corporation, admissions of member or officer, when competent, 65 books of as evidence, 113, 114. may be served with subpoena duces tecum, 193, 296. presumed to act within its lawful powers, 261. officer of, has not the privilege of a lawyer as to professional coin- munications, 289, 290. agent of, whether compellable to produce corporate books in evi- dence, 193, 296. charter of, when judicially noticed, 163. Corpus delicti, when confessions must be corroborated by proof of, 75- 79- Corroboration, of confessions by proof of corpus delicti, 75, 79. of ancient documents, 213. of witnesses, when required. (See Witness ; Accomplice.) Corroborative evidence, 4. 422 INDEX. (The numbers refer to pages.) Costs of affidavit containing improper matter, by whom payable. 311, 312. Counsellor. (See Attorney ; Barrister.) Counterfeit money, uttering of, similar acts to show knowledge, 43. Counterparts as evidence, primary or secondary, 179, 186, 191. County, officers of, judicially noticed, 170. so of population and boundaries of county, 168. Course of business, provable to show particular act within it, 53, 54. presumed to be followed, 262. when provable, to show care or negligence in doing particular act, 49, 50. declarations made in, 90-95. (See Book Entries.) Courts, jurisdiction of, how determined, 135. jurisdiction of superior courts, presumed, 136. aliter, of inferior courts, 137. effect of record as' estoppel. (See Judgment.) rules, officers, and terms of, judicially noticed, 166, 167. seals of, when judicially noticed, 168, 169. existence of, when noticed by other courts, 166. of admiralty jurisdiction, judicially noticed, 168, 169. of States, notice acts of Congress, 164. of U. S., notice State laws, 164. records of, how proved, 201, 202. Credit, to whom given on a sale of goods, 31. of witness, impeaching. (See Witness.) Crime, burden of proof in trials for. (See Burden of Proof.) one crime not provable by evidence that accused committed an- other, 35. aliter, when one forms the motive or preparation for the other, or they are parts of a general scheme, etc., 35. intent or knowledge provable by similar crimes, 43, 44. provable by evidence of system, 50-52. proof of by defendant's silence when accused, 15, 25, 27, 75. must be proved beyond reasonable doubt, 237. evidence of character in trials for, when relevant. (See Character. ) conviction for crime, disqualifies witness, when. (See Infamous Persons ; Witness.) competency of defendant as witness, 275-277. of husband or wife of defendant, 275-277. witness privileged from disclosing information as to commission of crimes, 283. attorney privileged as to disclosing communications relating to crime, 288, 291. INDEX. 423 (The numbers refer to pages.) Crime {continued). preliminary examination of prisoner before committing magistrate, 83, 85, 308, 346. (See Examination.) deposition taken on examination, admissibility of, 109, 346, 347. (See Confession ; Dying Declarations, etc.) Crimen falsi, denned, 273. Criminal conversation, in actions for, woman's unchaste reputation provable, 161. marriage not provable by cohabitation and repute, 155, 156. expressions and letters showing state of feeling, competent, 46, 47, 2I °. Criminating documents or evidence, witness not compellable to pro- duce or give, 187, 294, 296-300. (See Witness; Subpoena duces tecum.) Cross-examination, of witness. (See Witness.) Cumulative evidence, 4. Custom, evidence of facts showing, 18. provable by oral evidence to affect writing, 223, 224, 227, 232. m provable by one witness, 19, 305. public or general, declarations concerning, 100-103. of business and those recognized in courts, judicially noticed, 165, 166. of others in same business or employment, when relevant, 50. Cyclopaedia, as evidence, 117.. Damages, evidence of opinion concerning, relevancy of, 143. opinion as to value of property, services, etc., 143, 144. as to cases of taking property by eminent domain, 144. in actions for unliquidated damages, where defendant pleads affirmative defence, burden of proof on plaintiff, 242. Date of document, presumption as to, 209, 210. true date may be proved by parol, 220. day of week on which date falls, judicially noticed, 171. day of mailing letter not presumed from date of post-mark, 54. Deaf and dumb persons, competency of as witnesses, 272. Death, as matter of pedigree, 104, 107. as ground to receive evidence given in former proceeding, 108, 109. presumption of from seven years' absence, 257. sometimes inferred from shorter absence, 258. presumption as to time of absent person's death, 257, 258. order of death when several persons perish in same calamity, how established, 258. of witness before his examination is concluded, effect of, 315, 316. 424 INDEX. (The numbers refer to pages.) Deceased persons, relevancy of their declarations, 86-1 1 1. (See Dec- larations.) Declarations, provable when part of the res gestce. (See Res Gestce.) of conspirators, when provable. (See Conspirators.) in presence of a person, when provable, 15, 25, 26, 27, 58, 72, 75. concerning domicil, 26, 30. as to bodily and mental feelings, provable, 46-48, 210. of deceased attesting witness, irrelevant, 55. constituting hearsay evidence, not admissible, 55. (See Hearsay.) amounting to admissions. (See Admissions.) of owner of land or chattels characterizing his possession, 61, 62. amounting to confessions. (See Confessions.) by persons since deceased, 86-1 1 1. dying declarations, 86-90. (See Dying Declarations.) made in course of business or professional duty, 90-95. (See Course of Business ; Book Entries.) declarations against interest, 95-99. nature of the interest required, 95, 97, 99. whole of declaration relevant, though it contains matter of charge and discharge, 95. effect of declarant's having a limited interest in property, 96, 99. effect of indorsement of payment on bond, bill, note, etc., 96, 97- by testators as to intention and as to contents of will, 99, 100. as to public and general rights, 100-103. must be made ante lite»i motam, 106. provable by ancient maps, 115. relevancy of judgment relating to, 131, 134. as to public and private boundaries, 101, 102, 115. as to pedigree, 103-107. (See Pedigree.) of deceased persons, how impeachable, 340, 341. Decree of court, as evidence of public and general rights, 103. of executive, when judicially noticed, 169. proof of foreign, 205. Deed, as evidence of public and general rights, 103. as evidence of pedigree, 107. presumptions as to sealing and delivery of, 209, 211, 212. (See Seal.) as to date of execution and delivery, 209. proof of execution of, 181, 182, 185, 213. (See Document.) ancient, presumption as to, 212-214. competency of as rvidence, 102. INDEX. , 425 (The numbers refer to pages.) Deed {continued). effect of alteration of, 214-217. (See Alteration.) filling blanks in, 218. modification by oral evidence. (See Oral Evidence.) consideration or lack of it shown by oral evidence, 221. (See Acknowledged Deed.) shown by oral evidence to be an advancement, or a mortgage, 221. weight of evidence required, 240. cannot be delivered to grantee in escrow, 222. weight of evidence required to impeach certificate of acknowledg- ment, 240. production of by witness, whether compellable, 293, 294, 296. Default, judgment on is a bar, 122, 125. Definitions, general, 3. Delivery of deed. (See Deed ; Presumption.) Demand, provable orally, though made in writing, 191. Demonstrative evidence, 3. Demurrer, when judgment on is a bar, 122. effect of as an admission, 174. Depositions, admissions contained in, 58. whether necessary in order to prove contents of absent docu- ment, 189. may be taken under a commission, 309. methods prescribed by commission must be followed, 310. commissioners, how enabled to obtain evidence, 309. when taken under letters rogatory, 309. objections to, what may be made and when, 312, 340, 341. motion to suppress, 312. though deposition taken, yet personal testimony of witness prefer- able, 313. on preliminary examination before magistrate, when admissible, 109, 347- before committing magistrates in criminal cases, 83, 85, 308, 346, 347. under 30 & 31 Vict. c. 35, s. 6, 347. under Merchant Shipping Act, 1854 (England), 348, 349. Deputy-sheriff, admissions of, when competent against sheriff, 41. signature of, not judicially noticed, 168. Destruction of documents. (See Document ; Presumption.) Detectives, testimony of does not require corroboration, 302. are not persons in authority, as respects confessions, 80. Devisee, admissions of do not bind another devisee, 69. not bound by admissions of executor, 69. 426 INDEX. (The numbers refer to pages.) Devisor, admissions of bind devisee, 60. Direct evidence, xix.,4, 175, 370. Discontinuance, judgment of not a bar, 121, 122. Discovery, of title-deeds and other papers by party, when required, 293, 294, 296. and inspection of documents before trial, 192. Dismissal of complaint, judgment of not a bar, 121. aliter, if on the merits, 171. Disputable presumption, 5, 351. Districts, judicial and internal revenue, judicially noticed, 171. Divorce, effect of judgment granting, 119, 127. presumed, to sustain the validity of a second marriage, 241. marriage provable by cohabitation and repute, 156. adultery provable by preponderance of evidence, 239. corroboration of complainant's evidence, when required, 301. power of court to order physical examination in suits for, 177. Document, definition of, 3. evidence to show genuineness of, relevant, 20. evidence to show destruction or concealment of, when relevant, 22. documentary evidence defined, xix., 3. proof of contents of, 178-207. must generally be proved by primary evidence, 180, 219, 373. what constitutes primary evidence, xix., 178. in case of duplicates, 179, 191. in case of counterparts, 179, 191. in case of lithographed or photographed documents, 179. in case of telegrams, 179, 180. contents provable by admissions, 178. provable by secondary evidence in many cases, 186-191. what constitutes secondary evidence, xix., 186. exemplifications, examined copies, office copies, certi- fied copies, 186, 198-200. other copies, as letter -press copies, photographic copies, etc., 180, 186. counterparts in some cases, 186. oral testimony of contents, 186. admissibility of determined by judge, 191. when secondary evidence may be given, 186-191. when opponent does not produce document on notice, 187. when stranger, having privilege, does not produce on subpoena, 187, 296. INDEX. 427 (The numbers refer to pages.) Document (continued). when document is destroyed or lost, 136. but not, if intentionally destroyed, 188. presumption against one who destroys, 263. how loss provable, 188, 196. when original is not easily movable, or is out of juris' diction, 188, 189. when original is public document, 189. when party has been deprived of original by fraud, 189. when mode of proof is authorized by statute, 189. when originals are numerous documents, not con- veniently examinable in court, 189, 190, 191. in case of collateral writings, 190. (For other cases, see Notice to Produce Documents ; Public Documents.) rule as to there being degrees of secondary evidence, 191. attested, proof of execution of, 180-185, 213% attesting witness to be called, 180, 181. who is attesting witness, 180. proof by handwriting when witness is unprocurable, 181, 182. when instrument is destroyed, or the party will testify to exe- cution, 182, 183. in case of wills, 182. when party has admitted execution, 183. cases in which attesting witness need not be called, 183-185. when document is not produced on notice given, 184. when opponent produces it and claims interest under it, 184. when opponent is public officer, bound to procure the execution, 184. % when document comes collaterally in question, 185. when document is acknowledged or recorded deed, 182, 185. when document is ancient, 213. proof when attesting witness denies the execution, 185. unattested, proof of execution of, 185. presumptions as to, 209-218. (See Presumptions.) alteration of. (See Alteration.) modification of by oral evidence, 219-227. (See Oral Evidence.) interpretation of, 227-236. (See Interpretation and Construction.) production of by witness, when compellable. (See Subp&na duces tecum; Notice to produce ; Witness; Attorney.) \2% INDEX. (The numbers refer to pages.) Document {continued I. criminating, witness and his attorney not compellable to produce, 187, 294, 296. seizure or compulsory production of private papers prohibited by constitution, 294. aliter, as to physicians' prescriptions, 295. cross-examination of witness as to prior inconsistent statements in document, 332, 333. admissible throughout the Queen's dominions, how proved, 396. Dogs, injuries by, evidence to show scienter, 44. Domicil, evidence of declarations concerning, 26. of infant, how provable, 30. Drawings, as evidence, 177. Drunkenness, habitual, shown by repeated acts, 50. on one occasion, not provable by showing habit, 51. evidence of opinion concerning, 142. effect of upon the competency of a witness, 272. upon the admissibility of confessions, 85. Duplicate documents,* each is primary evidence, 179, 191. one admissible in evidence without notice to produce the other, 194. Duress, effect of admissions under, 74. effect of confessions under, 76, 78, 79. may be shown by parol to avoid written instrument, 220. Dying declarations, 86-90, 364. only competent in trials for homicide, 87. not in civil actions, 87. whether competent in cases of abortion, 90. must relate to cause of death, etc., 86. not competent evidence of prior or subsequent occurrences, 86. must state facts, not opinions, 86. admissible for or against defendant, 86. competent,- though obtained by leading questions, solicitation, etc., 86. may be expressed by signs, 86. not excluded by constitutional provision, 86, 87. not as weighty as testimony by witness, 88. declarant must be under sense of impending death, 87, 89. how this may be shown, 87. effect of hope existing, 87, 89. sense of impending death equivalent to an oath, 88. declarant must be competent to take an oath, 88. declarations of atheists, very young children, etc., not com- petent, 88. INDEX. 429 (The numbers refer to pages.) Dying declarations (continued). declarant need not die immediately, 88. effect of making the declaration in writing, as a deposition, etc., 88, 89, 90. how oral declarations may be proved, 89. burden of proof to render declarations admissible, 253. declarations impeachable, as if declarant were a living witness, 340. as by proving him to be an atheist, 341. or that his general reputation is bad, 341. or by showing his contradictory statements, 341. Edict, proof of, 205. Ejectment, when judgment in is a bar, 122, 123. Election, days of, judicially noticed, 169. Eminent domain, opinion-evidence competent as to value of land, 144. Encyclopaedia as evidence, 117. Entries in books. (See Book Entries ; Books ; Bankers' Books.) Equity. (See Chancery.) Equivocation, parol evidence to explain, 231, 235, 375-377. (See Oral Evidence.) Escape, of person charged with crime, provable, 23. Escrow, deed cannot be delivered to grantee in, 232. Estoppel, by judgment. (See Judgment.) admissions amounting to, 59. by conduct, 262-266. elements of estoppel in pais, 262-264, 379. of tenant to deny landlord's title, 266. of licensee to deny licensor's title, 267, 268. of acceptor of bill of exchange, 267. of bailee to deny bailor's title, 267, 268. of agent to deny principal's title, 267, 268. of shipmaster signing bill of lading to deny the shipment, 268, 269. shipowner, whether bound by master's act, 269. Evidence, definition of, xvi., 3, 4. distinguished from proof, 3. oral, 4, 175. (See Oral Evidence. documentary, xix., 3, 178-207. (See Document.) demonstrative, 3. moral, 4. competent, 4. satisfactory, or sufficient, 4. 43Q INDEX. (The numbers refer to pages.) Evidence {continued). cumulative, 4. corroborative, 4. direct, xix., 4, 175, 370. circumstantial, 4. (See Circumstantial Evidence.) presumptive, 5, 351. (See Presumption.) of facts in issue and relevant facts, xviii., 6, 351-353. relevancy of, and the different kinds of relevant evidence. (See Relevancy ; Res gestce ; Conspirators; Title ; Custom; Mo- tive; Preparation; Threats; Flight; Character; Opinion; Hearsay ; Admissions ; Confessions ; Declarations ; Docu- ment ; Judgment, etc.) rules of may be changed by the Legislature, 4. relevant evidence admissible, though improperly obtained, 6. improper admission of, not a ground for a new trial, unless party be prejudiced thereby, 350. offensive to public morals, received when relevant, 354. in former proceeding, when relevant, 107-m. grounds of its admission in civil cases, 108, 11 1. grounds of its admission in criminal cases, 108, 109, H 1,346,347. how such evidence may be proved, 109, no. who may testify thereto, no. such evidence not excluded by constitution, 109. both proceedings to be between same parties or their privies, in. evidence given by party, when relevant, 1 10. former testimony before arbitrators, provable, no. before coroners, not provable, m. Examination, of witnesses. (See Witness.) of prisoner before committing magistrate in criminal cases, 83, 85, 308, 346. depositions admissible on trial, if witness dead, insane, etc., 109, 346, 347. of parties before trial in civil cases, 308, 309. not allowed in actions at law in U. S. courts, 309. of person by physicians, power of court to order, 177. Examined copy, defined, 197. is secondary evidence, 186. Examiners, power of, to take evidence, 310. when without power to pass on objections to evidence, 310, 311. Exceptions, bill of, to prove testimony in former proceeding, 1 10. Execution of documents, proof of. (See Document ; Subscribing Wit- ness.) INDEX. 431 (The numbers refer to pages.) Executive, accession of, judicially noticed, 167. decrees and messages judicially noticed, 169. proof of foreign, 205. Executor, bound by admissions of testator, 60, 63. admissions of, 62, 69. effect of judgment appointing, 1 19. party to suit cannot testify against, as to transactions with dc cedent, 270. Exemplification, defined, 198. is secondary evidence, 186. Experiments, evidence of, when relevant, 156, 157. Experts and non-experts, testimony of. (See Opinion, Evidence of.) Explanatory facts, relevancy of, 28-33. Expressions of bodily and mental feeling, provable, 42, 47, 48, 210. Extrajudicial confessions. (See Confessions.) Fabrication of evidence, presumption from, 263. Fact, definition of, 3. collateral, defined, 6. Facts in issue, definition of, xviii., 5. admissible in evidence, 6. Facts relevant to the issue, definition of, xviii., 5, 351-353. admissible in evidence, 6. (See Relevancy.) Facts necessary to explain or introduce relevant facts, admissible, 28-33- Falsa demons tratio, parol evidence to explain, 230, 231, 234, 375-377. False imprisonment, information s>n which defendant acted, prov- able, 27. whether evidence of character admissible, 161. False pretences, obtaining goods by, evidence of> similar acts to show knowledge, 44. Falsits in uno,falsus in omnibus, effect of maxim, 303. Federal courts, take judicial notice of State laws, 164. and of rules of the departments, 162. production of documents in, 192. Feelings, bodily and mental, declarations concerning, competent, 42, 47, 48, 210. Fire caused by locomotive ; evidence of fires caused by other loco- motives admissible, 40. incendiary, evidence relevant to prove, 41. Flight, of an accused person, when provable, 22, 23. Foreign acts of state, proof of, 146, 207, 399. courts, seals of, when judicially noticed, 168, 169. 432 INDEX. (The numbers refer to pages.) Foreign judgments, effect of as res adjudicata, 138-140. Foreign law, provable by expert testimony, 145-147,207. (See Opinion, Evidence of.) by printed volumes or authenticated copies, 146. effect of not proving, 146, 147. provable in trial court, not in appellate court, 146, 147. when judicially noticed, 164. Foreign ministers, judicially noticed, 167. Foreign records, how proved, 146, 207, 399. Forfeiture, evidence exposing to, privilege of witness, 294, 298. judgment of, as an estoppel, 127. Forgery, other forgeries or utterings relevant to show intent, 43. Former proceeding, evidence in, when relevant, 107-m. (See Evi- dence.) Fraud, intent provable by similar acts, 44. confession obtained by, 85. when judgment is impeachable for, 137, 140. in written instrument, provable by parol, 220, 221. in trials for, defendant's good character irrelevant, 160. primary evidence obtained by fraud, secondary admissible, 189. fraudulent alteration of document, effect of, 214, 218. weight of evidence required to set instrument aside for fraud, 240. attorney may testify to client's communications, made to effect a fraud, 288. Gazetteer, as evidence, 117. General rights, defined, 102. declarations concerning, 100-103. provable by ancient maps^ 115. judgments relating to, 131. Geographical features of State, judicially noticed, 170. Gift causa //lords, weight of evidence required to establish, 240. Good faith, provable by similar acts or declarations, 42. Governor of State, accession of, judicially noticed, 167. not compellable to disclose State secrets, 282, 283. Grand jurors, competency of as witnesses, 285, 286. Grantor of land, admissions of bind grantee, 60. but only if made while he was owner or in possession of the land, 62, 63. Guardian, effect of judgment appointing, 119. admissions of, 62. INDEX. 433 (The numbers refer to pages.) Guardian {continued). must prove good faith as to dealings with ward, 254. cannot be excluded from court-room during trial, 314. Guilty, plea of, conviction upon, 76. Habeas Corpus, decision upon as a bar to another writ, 123. Habit, whether provable by evidence of repeated acts, 50. whether provable to show commission of a particular act, 51. Handwriting, evidence of, 151-153. (See Opinion, Evidence of.) comparison of handwritings, 153, 154. in proving execution of attested documents, 181, 182. (See Doc- ument.) in ancient documents, genuineness of presumed, 212, 213. Health, expressions as to, provable, 46, 48. Hearsay evidence, not relevant, xviii., 7, 55, 176, 358-360. defined, 55, 358-360. illustrations of, 55, 56. exceptions to the rule that hearsay is irrelevant are statements forming part of res gestce. (See Res Gestae.) admissions, 57-74. (See Admissions.) confessions, 75-85. (See Confessions.) dying declarations, 86-90. (See Dying Declarations.) declarations made in course of business, 90-95. (See Course of Business ; Book Entries.) declarations against interest, 95-99- (See Declarations.) declarations by testator as to contents of will, 99, 100. declarations as to public and general rights, 100-103. declarations as to pedigree, 103-107. (See Pedigree.) evidence given in former proceeding, 107-1 1 1 . (See Evidence.) Heir, bound by admissions of ancestor, 60. but not by those of executor or administrator, 69. Highway, defect therein, and notice thereof, how provable, 38, 39. boundaries of. (See Boundaries.) Historical works, statements in as evidence, 114. matters of public history judicially noticed, 170-172. but not of private history, 172. Homicide, insanity as a defence in trials for, 7, 247. alibi as a defence, 7, 248. good character of the defendant, when provable, 7, 158, 159. evidence of threats in trials for, 20, 21. circumstantial evidence of, 29-31, 52, 352, 353. dying declarations in trials for, 86-90. (See Dying Declarations.) malice presumed from deliberate use of deadly weapon, 263. 434 INDEX. (The numbers refer to pages.) Hostile witness, impeachment of, 330, 334-336, 386. (See Witness.) Husband and wife. (See Marriage ; Divorce.) what are necessaries for wife, how shown, 30. admissions of either as agent bind the other, 65, 70. admissions of husband hind widow claiming dower, 60. declarations of as showing pedigree, 105. letters and conversations, competent to show state of feeling, 47, 210. wife committing crime in husband's presence presumed to act under his coercion, 263. neither can testify as to marital intercourse, 256. nor are their declarations competent, unless forming part of res geslce, 256. in bastardy cases, right of wife to testify as to paternity of child, 2-56. competency of as witnesses in criminal cases, 275-277, 401-403. competency of as witnesses in civil cases, 277-279. cannot disclose confidential communications, 277, 279, 280. cannot, in general, give evidence criminating each other, 297, 298, 278. Identity, evidence of, 28, 35. of name, to show identity of person, 30, 263. party or witness may be required to stand up, etc., to be iden- tified, 177, 298. evidence of opinion concerning identity, 142. Illegality, provable by parol to avoid written instrument, 220, 221. burden of proof, as to defence of, 250. Impeachment of judgments, 136-140. (See Judgment.) of witness. (See Witness.) Impotence, examination of person to ascertain, 177. Impression, when witness may testify to his, 176. Incest, in trials for, marriage not provable by cohabitation and repute, 156. Indecent assault. (See Assault and Battery.) Indecent evidence, when admissible, 354. Indemnitors, how affected by judgment against principal, 132. (See Principal and Surety.) Indorsement on negotiable instrument. (See Bill of Exchange ; Promissory Note.) . capacity to indorse, when party estopped to deny, 267. of payment on bond, bill, note, etc., effect of as evidence, 96, 97. INDEX. 435 (The numbers refer to pages.) Infamous persons, competency of as witnesses, 273. what makes a person infamous, 273. crimen falsi defined, 273. disability how removed, 273. * infamy must generally be proved by the record, 325. but in some States proof by cross-examination permitted, and wit- ness's answer may be contradicted, 325. Infant. (See Children ; Parent and Child.) Information as to commission of offences, witness privileged from dis- closing, 284. Innocence, presumption of, 237, 238, 249. In rem, judgments as estoppels, 127. (See Judgment.) Insanity, of blood relations relevant to prove insanity, 33. book entries by insane person, 91, 93. of witness, as ground to receive his former testimony, 108, 109. as a defence in criminal cases, 7, 247. burden of proof, and amount of evidence required, 247. of testator provable by subscribing witnesses, 141, 142. burden of proof as to testator's insanity, in probate proceed- ings, 246. of other persons, how provable, 141, 149. presumed to continue when it has existed, 261. competency of insane persons as witnesses, 271, 274, 275. Insolvency, as evidence that one has not paid a particular debt, 32. Insurance, expert testimony as to materiality of circumstances affect- ing risk, 149, 150. how defence of arson proved, 51, 239, 241. expressions of assured showing state of health, relevant, 48. Intent, provable by similar acts or declarations, 42. expressions of, provable, 47. intentional and accidental acts, distinguished by evidence of sys- tem, 49-53- when witness may testify to his, 176. oral statements of, when provable to aid in the construction of documents, 229, 231, 235, 375-377. Interest, declarations against, 95-99. (See Declarations.) as affecting competency or credibility of witnesses, 270. whether judgment for interest, after principal due, bars action for principal, 125. Interpretation and construction of documents, 227-236. construction defined, 227. construction usually for court and not for jury, 227. jury may determine facts affecting construction, 227. 436 INDEX. (The numbers refer to pages.) Interpretation and construction (contained). if printed and written parts of document conflict, latter prevail, • 227, 228. how far oral evidence is admissible to affect construction, 227-236. (See Oral Evidence.) proper legal meaning preferred to one that is less proper, 229. Interpreter, admissions of, 73. privileged from disclosing communications to lawyer, 289, 290. Intestate, admissions of, competent against administrator, 60. Involuntary confessions. (See Confessions.) Irish statutes, proof of, 397. Issue, definition of, 5. evidence must be relevant to, 6. (See Relevancy.) Joint contractors, admissions of, 66, 67, 69, 71. effect of admissions, as to the Statute of Limitations, 67, 69. effect of judgment against one, 131. Joint debtors, admissions of. (See Joint Contractors.) Journals of legislature, not judicially noticed, 165. proof of, 206, 207, 296. recitals in as evidence, 112. Judge, definition of, 3. judicially recognized, 166. decides on admissibility of evidence, 4, 77, 191. minutes of, to prove evidence in*former proceeding, no. when judgment is conclusive in favor of, 135, 136. competency of as witness, 280-282, 381. Judgment, defined, 117. how proved. (See Public Documents.) not judicially noticed, 166. relevancy of, 1 17-140. conclusive proof of its legal effect, 117-119. effect of judgment, condemning ship as prize, 118. of judgment forming muniment of title, 118. of judgment, appointing executor, guardian, receiver, etc., 1 1<; of judgment appointing administrator for living person, 1 19. of judgment of divorce, 119, 127. of judgment naturalizing an alien, 120. how far conclusive of facts forming ground of judgment, 120-126. conclusive as to facts actually decided, 120. whether appearing on the record or not, 120. parol evidence admitted to show what was decided, 1 20, 134. must not contradict the record, 1 20. INDEX. 437 (The numbers refer to pages.) Judgment {continued). conclusive as to matters which were and those which might have been litigated, 120, 121. single cause of action not to be split, 120, 124, 125. defences not set up in one action cannot be afterwards sued on, 121, 125. aliter, as to set off and recoupment, 121, not conclusive as to matters which might have been liti- gated, when second suit is on different course of action, 121. not conclusive unless rendered on the merits, 121. • judgment of nonsuit not conclusive, 121. so of dismissal, unless on the merits, 121. of discontinuance, not conclusive, 121, 122. so of judgment of abatement, 122. verdict, without judgment, not a bar, 122. judgment on demurrer, when conclusive, 122. judgment by confession, or default, or by retraxit, conclusive, 122, 125. judgment on offer made and accepted, conclusive, 122. interlocutory order not generally conclusive, 122. aliter, as to final orders on merits in special proceedings, 122. judgment bars suit in court of concurrent jurisdiction, 122. effect of judgment as a bar in actions of ejectment, trespass, or for nuisance, 122, 123. effect of decision upon writ of habeas corpus, 123. whether judgment for interest, after principal due, bars ac- tion for principal, 125. judgment for physician's services bars action against him for malpractice, 125. statements in, irrelevant as between strangers, except in admiralty , cases, 126-128. judgments in rem and'their effect, 127. of prize and forfeiture, 127, 128. as to personal status, marriage, divorce, etc., 127. in attachment suits, 127, 140. effect of not pleading judgment as estoppel, 128, 129. may be conclusive though given in evidence without plead- ing, 129. irrelevant as between strangers, 130-134. and between parties and privies when the issue is different, 13°. J 33- 43** INDEX. (The numbers refer to pages.) Judgment {continued). not binding on parties as to matters not passed upon, 130. nor as to immaterial matters, 130. nor as to matters incidentally cognizable, 130. judgment against person in one capacity, not binding on him in another, 130. judgment against one administrator not binding on another, 130. effect of judgment against one tort-feasor, upon the others, 131. of judgment against one co-contractor, 131. of judgment against indorsee of bill or note, 132. of judgment against principal, upon surety or indemnitor, 132. of judgment against principal felon as respects accessory, 134. effect of judgment as admission, 131, 134. effect of, to prove matters of public and general right, 103, 131. conclusive in favor of judge, 134, 135. so as to jurisdictional facts which court has power to decide, 135. impeachable for lack of jurisdiction, 135-138. judgment of superior domestic court not impeachable col- laterally, except when record shows lack of jurisdic- tion, 136. in some cases, lack of jurisdiction available as equitable de- fence, 137. judgment upon unauthorized appearance of attorney, effect of, 138. judgments of inferior courts, etc., impeachable, 136. impeachable by showing its reversal, 137. effect of pending appeal from judgment, 137. impeachable by stranger for fraud, 137. by party for fraud, in equity, 137. not impeachable for error or irregularity, 137. foreign judgments and those of sister States, effect of, 138-140. impeachable for lack of jurisdiction, fraud, etc., 139, 140. proof of, 146, 207, 399. Judicial confession. (See Confessions.) Judicial notice, of what facts taken, 163-173. taken of common and statute law, corporate charters, etc., 163, 164. of the laws of antecedent government, 163. Federal courts notice laws of States, 164. State courts notice Acts of Congress, 164. of the legislature, its sessions, etc., 164, 165. of customs of business, and customs enforced by courts, 165, 166. INDEX. 430 (The numbers refer to pages.) Judicial notice {continued). of domestic courts, their judges, records, rules, orders, terms, etc., 166, 167. of the status and signatures of court officers, 167. of the constitution of the government, the accession of the executive and his signature, 167. status of public officers, of sheriffs, marshals, etc., 167, 168. of foreign states, their seals, and the law of nations, 168, 171. of foreign admiralty courts and their seals, 168, 169. of seals of State, of domestic courts, of notaries public, 169. of proclamations, treaties, executive decrees, etc., 169, 206. of days of election, 169. of the extent of the country, its civil divisions, geographical features, etc., 169, 170. of location of towns, population, boundaries, navigable rivers, etc., 170. of public matters concerning the government, 170, 171. of matters happening in the course of nature, 171. of the divisions of time, the meaning of words and abbrevia- tions, 171, 172. of matters of public history, 172. of matters of general knowledge and experience, 172, 173. Federal courts notice tidal ports and boundaries of States and districts, 171. notice not taken of private statutes, nor city ordinances, 163. nor of transactions in legislative journals, 165. nor of rules of practice in inferior courts, 167. nor of former judgment, 166. nor of pendency of another action, 166. nor of status of sheriff's deputy, 168. nor of seals of foreign municipal courts or of foreign officers, 169. nor of orders of military commander, nor private executive acts, 169. nor of matters of private history, 172. no evidence need be given of facts judicially noticed, 173. nor of facts admitted, 174. judge may refer to books, etc., to ascertain matters requiring no- tice, 173. Judicial records. (See Public Documents ; Public Records.) Jurisdiction, of court, when judgment impeachable for lack of, 135-140. of surrogate to appoint administrator upon estate of living person, 119. 440 INDEX. (The numbers refer to pages.) Jurisdiction {continued). power of court to determine its own, 135. of superior courts presumed, 136. aliter, of inferior courts, 137. of domestic courts judicially noticed, 166. furors, may testify as to evidence in former proceeding, no. bribing of, when provable, 23. decide as to sufficiency of evidence, 4. grand and petit, competency of as witnesses, 284-286. Knowledge, provable by similar acts or declarations, 42, 48. Land, application of presumption to question of ownership of, io, 14. title to, how provable, 17. value of, how provable, 36, 37, 143. admissions concerning. (See Admissions.) Landlord and tenant : landlord's admissions bind tenant, 60. tenant's admissions do not bind landlord, 60. landlord, by making repairs, admits it to be his duty, 58. tenant estopped to deny landlord's title, 266. admissions of tenant in common do not bind co-tenant, 69. Larceny, presumption of guilt from possession of stolen goods, 245. Lascivious cohabitation, in trials for, marriage not provable by co- habitation and repute, 156. Latent ambiguity, parol evidence to explain. (See Ambiguity.) Law, common and statute, of forum, judicially noticed, 163, 164. of nations, judicially noticed, 168. foreign, how proved, 145-147, 201-207. Law books, reading of to jury, 1 16. Law reports as evidence, 117. Lawyers. (See Attorney ; Barrister.) Leading questions, nature of, 319, 320. not permitted on the examination in chief or on re-examination, 319. except when witness is hostile, 319. or the examination relates to items, details, etc., 319. or when necessary to direct witness's attention to subject- matter, 319. or when court allows them, 319. permitted on cross-examination, 319, 320. but not in some States, when counsel inquires as to new mat- ter, 320. objections to leading questions in taking depositions should be taken before the trial, 312. INDEX. 441 (The numbers refer to pages.) Lease, as evidence of public and general rights, 103. Legatee, admissions of do not bind co-legatee, 69. Legislative journals. (See Journals of Legislature.) Legislature, Acts of. (See Statute.) may change rules of evidence, 4. judicial notice taken of legislature and its sessions, 164, 165. Legitimacy of children, presumed, 255. of relatives, declarations concerning, 105. Letter-press copies of writings are secondary evidence, 180. relevancy of, to show handwriting, 155. Letters, mailing of, raises presumption of delivery, 53, 54, 262. day of mailing not presumed from date of postmark, 54. failure to answer, no admission of their contents, 58. letters, as bearing upon addressee's sanity, 27. Letters rogatory, when issued for the taking of depositions, 309. Libel, evidence of similar statements to show malice, 45. evidence of plaintiff's bad character, when relevant, 161, 395. aliter, as to reports and particular acts of misconduct, 161. amount of proof required in justifying charge of crime, 239. License, burden of proof to show possession of, 251. in writing, may be varied by oral evidence, 222. licensee of property estopped to deny licensor's title, 267, 268. Lien on document, as excusing witness from producing, 295. Life and annuity tables, as evidence, 117. Life, continuance of, presumed, 262. (See Presumption.) when presumption of death arises, 257. Light and air, prescriptive right to, 260. Limitations. (See Statute of Limitations.) Liquors, intoxicating quality of, when judicially noticed, 172. sale of, provable by preponderance of evidence, 239. burden of proof as to license, 251. Lithographed documents as evidence primary or secondary, 179. Lost grant, presumption of, 259. Lunatic. (See Insanity.) Magistrate, confessions to by prisoner, 80, 83, 85. examination of prisoner before. (See Examination.) Malice, provable by similar acts or declarations, 42. in cases of libel and slander, 45. presumed, in cases of homicide from deliberate use of deadly weapon, 263. 442 INDEX. (The numbers refer to pages.) Malicious prosecution, in trials for, plaintiff's bad character relevant, 161. plaintiff must prove malice and want of probable cause, 252. information on which defendant acted provable, 27. judgment of acquittal competent, 118. grand jurors may testify to evidence given before them, 286. Malpractice of physician, what evidence irrelevant, 31. action for, barred by judgment for physician for his services, 125. Manslaughter. (See Homicide.) Maps, competency of as evidence, 114, 115. to prove public and general rights, 103, 115. Maritime courts, judicially noticed, 168, 169. Market-reports, as evidence, 117. Marriage, as matter of pedigree, 104, 105. (See Husband and Wife.) effect of judgment as to, 127. provable by cohabitation and repute, 155, 156. opinions as to existence of, when relevant, 155. provable by admissions, 156. register of, admissibility of entries in, 94. communications during, privileged, 277-280. in trials for breach of promise, woman's bad character relevant, 161. corroboration of plaintiff's evidence, when required, 300, 301. Marshal, status and signature of, judicially noticed, 168. aliter, as to his deputy, 168. Master and servant : m negligence of servant not provable by prior negligent acts, 37. of master in retaining servant, how provable, 37, 46, 160. confession of servant to master, 80, 82. Masters in chancery, duties of, 310. minutes of, to prove testimony in former proceeding, 1 10. Material alterations. (See Alteration.) Measures, weights and, judicially noticed, 171. Medical men. (See Physician.) Medical treatises, as evidence, 115, 116. Memorandum, does not exclude oral evidence of transaction, 190, 224, 227. • Memory, refreshing. (See Refreshing Memory.) Mental feelings, provable by similar acts or declarations, 42. expressions of, provable, 47-49, 210. Messages of executive, judicially noticed, 169. Minutes of judges, stenographers, etc., to prove former testimony, no. INDEX. 443 (The numbers refer to pages.) Misprision of treason, two witnesses needed in trials for, 303. Mistake, provable by parol to avoid written instrument, 220. weight of evidence required to set aside instrument for mistake, 240. Moneys, judicially noticed, 171. Moral certainty, 237. Moral evidence, 4. Mortality tables, as evidence, 117. Mortgage, oral evidence received to show deed or bill of sale to be a mortgage, 162. admissions by mortgagor, 62. mortgagee's privilege as to producing mortgagor's papers as evi- dence, 295. Motions, affidavits used in making and their contents, 309, 311, 312. Motive, evidence of, when admissible, 19, 21, 35. witness may testify to his, 176. Murder. (See Homicide.) Name, identity of, to show identity of person, 30, 263. Naturalization, effect of judgment of, 120. Necessaries for wife, evidence relevant to show what are, 30. Negligence, not provable by showing prior acts of negligence, 37. aliter, in some States, 37, 50. not provable by evidence of repairs after injury, 31. whether provable by similar injuries or similar defects, 34, 38-41. whether system or course of business may be shown to prove neg- ligence, 49, 50. in trial for, habit of carefulness irrelevant, 51. so as to reputation for carefulness, 160. burden of proof to show negligence and contributory negligence, 251. Negotiable instruments. (See Bill of Exchange ; Promissory Note.) New trial, not granted for improper admission or rejection of evidence unless party be prejudiced thereby, 350. on motion for, jurors not allowed to impeach their verdict, 284. Nicknames, in document, explainable by parol evidence, 229, 230, 233- Nol. pros., qualifies co-defendant in criminal cases to testify, 275 276. Non-experts, evidence of opinion by. (See Opinion, Evidence of.) Nonsuit, judgment of, not a bar, 121. Non volo contendere, plea of, conviction upon, 76. 444 INDEX. (The numbers refer to pages.) Northampton tables, as evidence, 117. Notary, judicially noticed, 168. seal of, judicially noticed, 169. book entries of, as evidence, 91. Notice of defect in highway, how provable, 38, 39. Notice to produce documents, object of, 372. upon failure to produce, secondary evidence admissible, 187, 206. but not unless due notice be given, 192. attesting witness need not be called, 184. notice may be given to party or his attorney, 192, 296. must be given a sufficient time beforehand, 192. and must describe document, 192. secondary evidence admissible without notice : when the document is itself a notice, 193. when the action seeks it in the opponent's possession, 194. when the opponent has obtained it from person subpoenaed, 194. when the opponent has the document in court, 194. verbal notice in court then sufficient, 194. when there are duplicate originals, 194. when the document is only collaterally in question, 195. notice to be given though party notified is absent from State, 194, 195. party calling for and inspecting document, bound to give it in evidence, if required by other party, 344. aliter, in some States, 344. party refusing to produce when duly notified, cannot use docu- ment as evidence without consent, 345. Notices, provable orally, though given in writing, 190, 191. Nuisance, effect of judgment in action for, 123. Number of witnesses, 303-305. (See Witness.) Oath, confessions made under, effect of, 82-84, 298, 363. witness to be under, 306. or may affirm, 306, 307. mode of administering, 307, 308. wilful false oath constitutes perjury, 306, 307. Objects, shown to jury as evidence, 176, 177. Offer, judgment on is a bar, 122. Office, right to, shown by person's acting as officer, 53, 225. Office-copy of document, defined, 198, 199. when admissible in evidence, 198, 199. is secondary evidence, 186. INDEX. 445 (The numbers refer to pages.) Officers, of court, judicially noticed, 167. public, judicially noticed, 167, 168. presumed to perform .their official duties, 261. of corporation. (See Corporation.) Official communications, privileged from disclosure, 282. Official documents or records. (See Public Document; Public Record; Bond.) Omnia prasumuntur contra spoliatorem, 263. Omnia prasumuntur rite esse acta, 261, 378. Open and close, who has right to, 242, 243. Opinion, evidence of, generally irrelevant, xix., 141. of subscribing witnesses as to testator's sanity, relevant, 141. of non-experts as to sanity or insanity, when relevant, 141, 142. of non-experts as to matters within common comprehension, as identity, age, sickness, etc., 142. of experts as to insanity, 148. evidence of, as to damages, 143. as to value of property, services, etc., 143, 144. of experts on points of science or art, relevant, 144-150. "science or art" defined, 144. as to foreign law, or the law of sister States, 145-147, 207. other modes of proving such laws, 145, 146, 205-207. effect of not proving such laws, 146, 147. expert usually a lawyer, 146. as to matters within common knowledge, irrelevant, 145, 150. competency of expert, determinable by judge, 146, 147. opinion of expert as to existence of facts, irrelevant, 147, 148. but may state facts from scientific knowledge, 145. knowledge of expert tested by standard treatises, 116. when questions to expert must be in hypothetical form, 147, 148. mode of framing such question, 147, 148. opinion of expert as to effect of evidence, irrelevant, 148. so as to matter of legal or moral obligation, 148. so as to point in issue in the case, 145, 150. opinion of expert as to materiality of circumstances affecting insurance risk, 149, 150. relevancy of facts bearing upon opinions of experts, 151. as to handwriting, when relevant, 151-153, 155. what qualifies a person to testify as to handwriting, 152, 153. comparison of writings, when permitted, 153, 154. collateral writings, when admissible as standards, 154. letter-press copies and photographic copies,when used, 155. signature made in court, when used as a standard, 154, 155. 446 INDEX. (The numbers refer to pages.) Opinion {continued). as to existence of marriage, when relevant, 155, 156. grounds of opinion, relevancy of, 156. evidence of experiments, when received, 156, 157. opinion-evidence to be given by person having the opinion, 176. witness may testify to his impression, belief, etc., 176. Oral evidence, defined, 4. proof by, 175. must be direct, xix., 175. witness may testify to his impression, belief, intent, or motive, 176. but not to conclusion of law, 176. relevant to show grounds of judgment, 120. not relevant to add to, vary, or contradict a writing, xix., 219, 225, 232, 273. but relevant to show fraud, mistake, illegality, want of con- sideration, want of capacity, the true date, etc., 220, 221. and that deed or bill of sale is a mortgage, 221. and to establish a trust, 221. and to prove an advancement, 221. and that signer of instrument is agent, not principal, 221. and to show true relations of parties to an instrument, 221. and to vary receipts, licenses, or admissions, 222. and to show the existence of a distinct oral agreement, 221, 225. or an oral agreement forming a condition precedent, 222, 226. aliter, as to delivery of instrument under seal to grantee, 222. and as to other kinds of conditions, 223. or a subsequent oral agreement to rescind or modify, 223, 226. and to show usage or custom, 223, 224, 227, 232. oral evidence of transaction receivable, though memorandum made, 190, 224, 227. legal relation created by writing, provable by parol, 190, 224, 227. that person is public officer, provable by parol, 53, 225. contract may be reformed in equity by parol, 225. weight of evidence required, 240. a will may not be reformed, 225. oral evidence competent to explain foreign, obsolete, technical, etc., expressions, 228. to explain abbreviations, illegible characters, words used in special sense, etc., 228, 232. to supplement incomplete terms of document, 228. INDEX. 447 (The numbers refer to pages.) Oral evidence {continued). to identify persons and things referred to in document, 229, 232. to show "surrounding circumstances," 229, 230, 231, 233, 234- but not to change meaning of document whose meaning is plain, 230, 233. nor to show the meaning of common words, 228, 232. nor to show the intent of an unintelligible document, 228, 232. nor to resolve a "parent ambiguity" or "uncertainty," 228, 229. oral statements of intention not provable in cases of falsa demonstratio, 230, 231, 234, 375-377. but provable in cases of "equivocation," or "latent am- biguity," 231, 235, 375-377. and to rebut an equity, 231, 235. rule excluding oral evidence only applies when civil right or liability is in question, 235, 236. rule may be waived by party, 236. stranger to document may vary it by oral evidence, 235, 236. mode of taking oral evidence, 306-345. (See Witness.) may be taken in open court on preliminary or final hearing, 308. preliminary examination of prisoner in criminal cases, 83, 85,308,346. examination of parties and witnesses before trial in civil cases, 308, 309. parties not examined before trial in suits at law in U. S. courts, 309. may be taken out of court on affidavit, 309, 311. (See Affi- davit.) or in taking depositions under a commission, 309-313. (See Depositions.) or before officers of the court or other persons duly ap- pointed or selected, 310. as referees, auditors, examiners, etc., 310. Order of court, as evidence of public and general rights, 103. effect of as res adjndicata, 122. Orders in council, proof of, 397. Ordinances, municipal, not judicially noticed, 163. of state, judicially noticed, 169. proof of foreign, 205. 448 INDEX. (The numbers refer to pages.) Papers. (See Document.) Parent and child. (See Children.) parent must prove good faith as to dealings with child, 254. resemblance of parent to child, evidence of, 32. Parol evidence to vary a writing. (See Oral Evidence.) Partners, admissions of one bind the others, 66, 71. effect of admissions after dissolution, 66, 67. of part payment by one after dissolution, 67. one partner cannot confess judgment against another, 66. must show good faith in dealings with co-partner, 254. person who has held himself out as partner estopped to deny it, 265. retiring partner giving no notice, estopped to deny that he is partner, 264. entries in partnership books evidence against partner, 58. Part-owners of ship, admissions of, 71. Party to action, admissions of. (See Admissions.) book entries made by, relevancy of, 92. relations of parties, provable, 28. may be required to stand up to be identified, 177. competency of, as witness. (See Witness.) may be subpoenaed, 193, 296. (See Witness; Subpoena duces tecum.) may not be excluded from the court-room during trial, 314. voluntarily becoming witness in criminal case maybe fully cross- examined, 209. in some States may only be cross-examined as to matters stated on the direct examination, 298, 317. as witness in other cases may be cross-examined like other wit- nesses, 317, 321. impeachment of, as witness, 159, 329, 336. examination of, before trial in civil suits, 308, 309. not allowed in U. S. courts, in actions at law, 309. former testimony of deceased party, when provable, 1 10. latent ambiguity. (See Ambiguity.) Payment, what evidence irrelevant to show, 32. effect of not pleading, 125. burden of proof on defendant, 250. provable without producing receipt, 190, 191. indorsement of on bond, bill, note, etc., effect of.as evidence, 96, 97. Pedigree, declarations concerning, 103-107. what constitutes pedigree, 103, 104. includes birth, marriage, death, and the time and place thereof, 104, 107. aliter, in this country, as to place, 104. INDEX. 449 (The numbers refer to pages.) Pedigree {continued). who may be a declarant, 105. declarations only competent when pedigree is in issue, 105. a person's age may be matter of pedigree, 104. declarations as to legitimacy of relatives, 105. how declarations may be made, 104, 105. must be made ante litem motam, 106. declarations of neighbors, friends, etc., incompetent, 106. Penalty, evidence exposing to, privilege of witness concerning, 294, 298. Perjury, in trials for, evidence required to corroborate witness, 304, 305. wilful false testimony, violating witness's oath or affirmation, con- stitutes, 306-308. grand jury may testify to evidence given before them, to disclose perjury, 286. conviction for, renders witness incompetent in some States, 274. Petty jurors, competency of as witnesses, 284-286. Photographs, as evidence, 32, 177. photographic copies, when primary and when secondary evidence, 179, 180. photographic copies, when used to show handwriting, 155. Physical examination of a party, power of court to order, 177. Physician, malpractice of, what evidence irrelevant, 31. book entries of deceased physician, when admissible, 91. statements of bodily feeling made to, when relevant, 47, 48. judgment for bars action against for malpractice, 125. must prove good faith as to dealings with patient, 254. prescriptions not privileged from compulsory production in evi- dence, 295. privilege of as witness as to professional communications, 292, 293- patient may waive privilege, 292, 293. examination of party by, power of court to order, 177. Pictures as evidence, 32, 107, 177. Plans of land, as evidence, 115. Pleading, admissions made in, 58, 59, 174. of judgment, whether necessary or not, 128, 129. Population of State, county, etc., judicially noticed, 170. Portraits, inscriptions on as evidence of pedigree, 107. Possession of property raises presumption of ownership, 262. of property after crime committed, provable, 23, 353. raises presumption of guilt, 245. 450 INDEX. (The numbers refer to pages.) Preparation, evidence of, relevant, 19, 22, 35. Preponderance of evidence, required in civil cases, 238, 239. (See Burden of Proof.) to prove insanity and alibi in criminal cases, 247, 248. Prescriptive rig! t to light and air, 260. President, accession of, judicially noticed, 167. not compel 1 ible to disclose State secrets, 282. Presumption, definition of, 5. what presumptions belong to the law of evidence, xxiii. presumptions of law, conclusive and disputable, 5, 351. presumption of fact, 351. as affecting burden of proof, 242, 248, 249. burden of proof in case of conflicting presumptions, 244, 249. as to neighboring pieces of land, when relevant, 10, 14. as to da* ; of mailing letters, 54. of the delivery of letters from mailing them, 53, 54, 262. that official publication of statutes contains existing law, 205. of innr cence when crime is charged, 237, 238, 249. when preferred to that of continuance of life, 241. of g''dt from recent possession of stolen goods, 245. that indorsee of negotiable instrument acquired it bona fide for value, 244. that person receiving rent of land, is owner, 249. of damages against wrongdoer, 249. of legitimacy of children from birth in wedlock, 259. of death from ^even years' absence, 257. (See Death.) sometimes inferred from shorter absence, 258. of the order of death, when persons perish in the same calamity, 258. of lost grant, 259. of ?. right bj prescription to light and air, 260. of a right to percolating waters, 260. of regularity in the performance of official acts, 261. of deeds to complete title, 261. of the del'very of a deed, found in the grantee's hands, 209, 212. ->> the continuance of a state of things once existing, 261. as a personal relation, 261. a law, 261. continuance of life, 249, 262. character, habits and appearance, 261. residence, 261. insanity, 261. status, 262. INDEX. 451 (The numbers refer to pages.) Presumption {continued). of the observance of the regular course of business, 262, 358. that letters duly mailed reach their destination, 53, 54, 263. that bill or note in hands of acceptor or maker has been paid, 262. that person in possession of property is the owner, 262. that a man intends the natural consequences of his acts, 262, 263. that a wife committing crimes in her husband's presence, acts under his coercion, 263. of malice from deliberate use of deadly weapon, 263. from the destruction, fabrication or suppression of evidence, 263. of identity of person, from identity of name, 30, 263. of payment of specialty after lapse of 20 years, 263. from failure to call a witness, 314. as to documents, 209-218. as to date, 210, 220. of order of execution of instruments having same date, 209. that instruments of same date are parts of same transaction, 209. as to stamp, 210. as to sealing and delivery of deeds, 209, 21 1, 212. (See Seal.) as to ancient documents, 212-214. what corroboration required, 213. as to alterations. (See Alteration.) equitable presumption as to document may be rebutted by parol evidence, 231, 235. burden of proof is on party against whom presumption exists, 242, 248,249. Previous conviction, relevancy of, in prosecutions for receiving stolen goods, 42. Price current list, as evidence, 116. Primary evidence. (See Document.) Principal and agent : admissions of agent bind principal, 65, 66, 70, 362. parol evidence competent to show that signer of instrument signed as agent, not as principal, 221. agent must show good faith as to dealings with principal, 254. agent estopped to deny principal's title, 267, 268. agency shown by person's acting as agent on other .occasions, 53. aliter, as to agency to commit crimes, 53. agent of lawyer, privileged from disclosing client's communica- tions, 2QO, 452 INDEX. (The numbers refer to pages.) Principal and surety : principal's admissions do not bind surety, 70, 71. effect of judgment against principal, 132. parol evidence competent to show parties to instrument to be co- sureties, 221. principal must show good faith as to dealings with surety, 254. alteration of document by principal's consent may avoid it as to surety, 215. Principal felon, judgment against as affecting accessory, 134. Printed documents as evidence, primary or secondary, 179. Private boundaries, declarations concerning, 101, 102. when provable by ancient maps, 1 15. Private papers. (See Document ; Subpoena duces tecum ; Witness.) Private rights, declarations concerning, 102. Privies, admissions by. (See Admissions.) when bound by judgment against party, 120, 126, 128, 130. in subsequent suit between same parties or privies, former testi- mony of deceased witness admissible, in. Privilege of witnesses. (See Witness.) Privileged communications between husband and wife, 277, 279, 280. between attorney and client, 286-292. (See Attorney.) between clergyman and person confessing, 292, 293. between physician and patient, 292, 293, 382. Prize, effect of judgment of, 118, 127, 128. Probate of will, evidence to procure, 100, 182. effect of judgment granting, 1 19. burden of proof as to testator's sanity and as to undue influence, 246, 247. Probate courts, grade of, 136. effect of judgments of, 136. Proclamations, recitals in as evidence, 112. judicially noticed, 169, 206. proof of, 205, 206, 397. Professional communications. (See Privileged Communications.) Promissory note, admissions of holder of, 63, 64. indorsement of payment on, effect of as evidence, 96, 97. effect of judgment against indorser, 132. character of party, not relevant, 160. alteration of. (See Alteration.) filling blanks in, 218. presumption that indorsee acquired it bona fide for value before maturity, 244. when in hands of maker, presumed to have been paid, 262. INDEX. 453 (The numbers refer to pages.) Promissory note {continued). whether party competent to testify that it was invalid in its in- ception, 271. whether judgment for interest, after principal due, bars action for principal, 125. Proof, defined. (See Evidence.) conclusive, definition of, 4, 351. order of discretionary with court, 315. burden of. (See Burden of Proof.) Property, value of, how provable, 36, 37, 143, 144. possession of raises presumption of ownership, 262. after larceny of raises presumption of guilt, 23, 245. facts showing rights of, or exercise of rights, 17. Public acts and records of other States, to receive full credit, 139, 201. Public affairs, privilege of witness as to disclosing, 282. Public books and records, admissibility of entries in, 94. Public documents, proof of, 196-207. by producing document itself, 196. by testimony of witness, 146, 196. by copies, 186, 187, 189. by examined or sworn copy, 186, 197, 205, 207. by exemplification, 186, 198, 199, 205, 207. by office copy, 186, 198, 199. by certified copy, 186, 198, 199. by officially printed copy, 204, 205, 206. of Revised Statutes of U. S., 204, 205. of State statutes, 146, 205. of proclamation, edict, decree, etc., 205, 206. of foreign law, 146, 207. official publication presumed to contain existing law, unless contrary shown, 205. if printed statute differs from enrolled, latter prevails, 205, 206. proof of general records of the nation or State, 197, 396. of records of the several American States, 201, 202, 203. of statutes of any State or Territory, 146, 205, 206. of proclamations, acts of state, legislative journals, etc., 205, 206. of foreign written laws, acts of state, records, etc., 146, 207, 399. English and Irish public documents, proof of, 396-400. Public facts, recitals of as evidence, 112. Public history, matters of, judicially noticed, 172. Public laws, when judicially noticed, 163, 164, 454 INDEX. (The numbers refer to pages.) Public officers. (See Officers.) Public records, entries in as evidence, 94, 112, 113. (See Public Documents.) of the weather, 1 13, 1 17. how contents proved in case of loss, 196. Public rights, defined, 102. declarations concerning, 101-103. provable by ancient maps, 115. judgments relating to, 131, 134. Publication of will, 100. Quarrelsome character of person, when provable, 20. Queen's printers' copies of Acts of Parliament, as evidence, 396. Rape, evidence of woman's complaint in trials for, 24, 25, 27. particulars of complaint not generally provable, 24, 25, 27, 356. corroboration of the woman's evidence required in some States, 301. evidence of her bad reputation for chastity, competent, 337-339. evidence of her previous connection with the prisoner or other persons, competency of, 338, 339. Reading law books and other books to jury, whether permissible, 116. Reasonable doubt, defined, 237. Rebuttal, evidence in, when given, 319. of an equity, by oral evidence, 231, 235. Receipt, not necessary as evidence to prove payment, 100, 191. may be varied by oral evidence, 222. Receiver, effect of judgment appointing, 1 19. Receiving stolen goods, similar acts relevant to show knowledge, 43. Recitals of public facts, in statutes, proclamations, etc., when relevant, 112. Record, imports absolute verity, 136. Records, public. (See Public Documents; Public Records.) Record books of courts, judicially noticed, 166. Recorded deeds, proof of execution of, 185. (See Deed; Acknowl- edged Deed.) presumption as to delivery of, 212. Recoupment, matter of may be set up in defence, or sued on inde- pendently, 121. Re-examination of witness. (See Witness.) Referee, competency of as witness, 287. power of to take testimony, decide causes, etc., 310. appointed to take evidence, cannot pass upon objections, 311. alitcr, when he acts as judge to decide causes, 311. INDEX. 4$5 (The numbers refer to pages.) Reformation of document in equity. (See Oral Evidence.) Refreshing memory of witness : witness may use writing made at or near time of transaction, 341, 343- three cases of refreshing memory, 341, 342. writing not itself competent evidence, generally, 342, 343. aliter, in some States as to writing made by witness, when he has no present recollection of the facts, 343. opposite party allowed to inspect writing, and may cross-examine thereon, 343. object of cross-examination, 343. writing made too long after transaction, not allowed to be used, 344. dying declarations made in writing, used to refresh recollection, 88. Registers, public, entries in as evidence, 94, 112, 113. as evidence of pedigree, 107. Relationship of parties, evidence of, 28. (See Pedigree.) insanity shown by insanity of blood relations, 33. Relevancy, definition of, xviii., 5, 351-354. (See Evidence.) relevant facts admissible in evidence, 6. except when too remote, 6, 19, 40. relevant evidence admissible, though improperly obtained, 6. of facts forming part of the res gestce. (See Res Gesta.) of facts and declarations of conspirators. (See Conspirators.) of facts showing title, 17, 355. of facts showing custom, 18. - of facts showing motive, preparation, subsequent conduct, explana- tory statements, 19-23, 35. of complaints, statements in person's presence, etc., 23-27. of facts necessary to explain or introduce relevant facts, 28-33. of identity, genuineness of documents, relations of parties, oppor- tunity for act, etc., 218. of similar but unconnected facts, 34-41, 357. of evidence to show value of property, 36, 37. of acts showing intention, good faith, etc., 42-49, 357. of facts showing system, 49-53, 357. of facts showing course of business, 49, 50, 53, 54. of hearsay evidence, 55. (See Hearsay.) of admissions, 57-74. (See Admissions.) of confessions, 75-85. (See Confessions.) of statements of deceased persons, 86-1 1 1. (See Declarations.) of statements in public documents and records, 112. of statements in historical and scientific works, maps, etc., 1 13-1 16. of statements in judgments, 1 17-140. (See Judgment.) 456 INDEX. (The numbers refer to pages.) Relevancy {continued). of evidence of opinion. (See Opinion, Evidence of.) of evidence of character. (See Character, Evidence of.) Remoteness of evidence, excludes it, 6, 19, 40. Kent of land, person receiving presumed to be owner, 249. Reports, law, as evidence, 112, 196. to prove foreign law, 146. Reputation. (See Character, Evidence of.) as evidence of pedigree, 107. Res adjudicata. (See Judgment.) Res gestce, doctrine of, 8-14, 23, 57, 356. when acts or declarations will form a part of, 9, 10. admissible though in declarant's own favor, 57, 61. illustrations of doctrine, 11-14, 26, 29, 47. declarations of conspirators, 14-16, 63, 355. declarations of woman in cases of rape, 24, 25. expressions of bodily and mental feeling, 47-49, 210. declarations of owner of land or chattels, characterizing his pos- session, 61, 62. declarations as to boundaries of private estates, 101. declarations of agents in course of agency, 65, 66, 70, 362. declarations of principal as affecting surety, 70, 71. declarations made in course of business, etc., 90-95. letters of parent as to legitimacy of child, 256, 257. Res inter alios acta, xviii., 357. Res ipsa loquitur, 243, 249, 250. Resemblance of child to parent, evidence of, 32. Retraxit, judgment on is a bar, 122. Rights, public and general, declarations concerning, 100-103. private, declarations concerning, 102. Roman law, compared with common law, xxv. Rules of court, judicially noticed, 166. but not those of inferior courts, 167. Sanity, of testator, provable by subscribing witnesses, 141. (See In- sanity.) of other persons, whether provable by evidence of opinion, 141. provable by letters sent to person, with evidence of his acting thereon, 27. Satisfactory evidence, 4. Science, matters of, provable by opinion-evidence, 144. Scienter, provable by similar cases of injury by animals, 44. Scientific treatises, competency of as evidence, 115, 116. INDEX. 457 (The numbers refer to pages.) Seal, of States, of admiralty courts, of notaries, etc., judicially noticed, 168, 169. but not those of foreign municipal courts, or of foreign officers, 169. English seals recognized in English courts, 168-170. to be used on copies of public documents, 197, 198. of a deed, what is sufficient as, 211. instrument without seal not a deed, though it allege a sealing, 211. if deed be recorded without a seal, sealing may be presumed, 21 1. if seal omitted by mistake, equity will supply it, 211. seal of deed presumed to be that of signer, 211, 212. deed sealed and signed, presumed to have been regularly de- livered, 212. contract under seal, how far modifiable by oral evidence, 223. when condition affecting sealed instrument may be shown by parol, 222. Secondary evidence. (See Document.) Seduction, plaintiff's bad character irrelevant in actions for, 160. aliter, as to woman's bad character, 161, 339. under promise of marriage, is a crime, 301. corroboration of woman's evidence in trials for, when re- quired, 301. woman cannot generally be cross-examined as to connection with other men, 340. Self-defence, burden of proof as to, and amount of evidence required, 248. Senator, status of, judicially noticed, 167. Servant. (See Master and Servant.) Set-off, may be set up in defence or sued on independently, 121. Sheriff, when bound by admissions of deputy, 60. status and signature of, judicially noticed, 168. aliter, as to his deputy, 168. effect of judgment against, as to sureties on his bond, 132. admissions of judgment debtor, when competent against sheriff, 72. Shifting of burden of proof. (See Burden of Proof.) Shipmaster, when estopped to deny bill of lading signed by him, 268, 269. shipowner, whether bound by master's act, 269. Sickness of witness, as ground to receive his former testimony, 108. evidence of opinion as to person's illness, 142. Signatures, of judges and public officers, judicially noticed, 167, 168. proof of, to show execution of document, 181, 182. made in court, when used as standards of comparison, 154, 155. 458 INDEX. (The numbers refer to pages.) Silence, admissions and confessions by, 15, 25, 26, 58, 72, 75. Similar facts to those in issue, generally irrelevant, xviii., 34-41, 357- illustrations of rule, 35-41. but relevant when they are the effects of the same cause, acting under like conditions, 34, 38-41. relevant to show the quality of an act, 34, 37-39. relevant to show intention, knowledge, good or bad faith, malice, etc., 42-49, 357. relevant to show system, 49-53, 357. Slander, evidence of similar statements to show malice, relevant, 45- evidence of plaintiff's bad character relevant, 161, 395. aliter, as to reports and particular acts of misconduct, 161. amount of proof required in justifying charge of crime, 239. Solicitor. (See Attorney.) of patents, has not a lawyer's privilege as to professional com- munications, 290. Special proceeding, effect of order in, 122. Specialty. (See Bond ; Deed ; Document ; Oral Evidence ; Seal ; Presumption.) Splitting cause of action, not permissible, 120, 124, 125. Spoliation, distinguished from alteration, 215. Spoliator, presumptions against, 263. Stamp in documents, presumption as to, 210. State of mind or body, provable by similar acts or declarations, 42. expressions of provable, 47-49. State affairs, privilege of witness as to disclosing, 282. State papers. (See Public Documents.) Statements. (See Declarations ; Document ; Judgment ; Witness.) Statute, recitals in as evidence, 1 12. of forum, judicially noticed, 163, 164. aliter, as to private statutes, 163. of other States or countries, how provable, 145-147, 205, 206, 207. of the United States, how proved, 204. if printed statute differs from enrolled, latter prevails, 205, 206. official publication presumed to contain existing law, unless con- trary shown, 205. weight of evidence required to show statute to be unconstitutional, 240. Statute of Frauds, contract within, how far modifiable by parol evi- dence, 222, 223. INDEX. 4S9 (The numbers refer to pages.) Statute of Limitations, effect of admissions by one partner or joint contractor in removing the bar of, 66, 67, 69. effect of indorsement of payment on bond, bill, note, etc., in re- moving bar of the statute, 96* 97. effect of prosecution being barred, upon the privilege of witness as to criminating evidence, 297. Stenographer's minutes or testimony, to prove testimony of deceased witness, 1 10. Stipulations of attorney, binding on client, 68. Stolen goods, receiving, facts relevant to show knowledge, 43. Strangers to suit, admissions by, 72. effect of judgment upon, 126-128, 130-134. (See Judgment.) subpcena served upon, 193. to document, may vary it by oral evidence, 235, 236. Suborning of witnesses, effect of as evidence, 22, 23. Subpcena, ambassadors and foreign consuls not required to obey, 283. Subpoena duces tecum, is a compulsory writ, 193. penalties for disobeying, 193. on whom served, 193. may now be served on party to action or on corporation, 193, 296. should describe document definitely, 193., not used to compel the production of iron plates and the like, 193. witness compellable to produce his private papers, 294. but court may relieve him of this duty, 294. not privileged from producing papers on which he has a lien or which would expose him to civil liability, 294, 295. attorney or agent compellable to produce papers which client could be required to produce, 296. but professional communications protected from dis- closure, 296. solicitor, trustee, or mortgagee not compelled to produce papers entrusted to him, 295. witness not compellable to produce papers that would criminate him, 187, 294, 296-300. or would expose him to a penalty or forfeiture, 294, 298. private papers protected from seizure, 294. when privileged witness withholds document, secondary evidence admissible, 187, 296. aliter, when witness not privileged withholds it, 193. agents of telegraph company compellable to produce messages, 193. 297. witness not cross-examinable, when merely called to produce paper on subpcena, 315. 4 6o INDEX. (The numbers refer to pages.) Subscribing witness, who is, 180. proof of execution of document attested by, 180-185, 371. (See- Document.) deceased, declarations of irrelevant, 55. to will, may testify as to his opinion of testator's sanity, 141. proof of will by, 182. in ancient documents, need not be examined, 213. if attorney be subscribing witness to will, he may testify to its execution, 287. may be impeached by party calling him by proof of his contra- dictory statements, 330. Sufficiency of evidence, 4. determined by jury, 4. Supreme Court of Justice (England), rules of practice in judicially noticed, 166, 167. does not notice rules of inferior courts, 167. signatures of its judges judicially noticed, 168. Surety. (See Principal and Surety.) Surrogate, power of to appoint administrator on estate of living per- son, 119. Surveys of land, as evidence, 115. Surveyors, declarations of deceased to prove boundaries, 101. Survivorship, presumption as to, when persons perish in the same calamity, 258. Sustaining of impeached witness. (See Witness.) Sworn copy, of a document, 197. System, provable by evidence of similar acts, 40-53, 357. Tables, life and annuity, as evidence, 117, 179, 180. Technical words, explained by parol evidence, 228. Telegrams, as evidence, whether primary or secondary, 179, 180. presumption of delivery from sending, 54. agent of telegraph company required to produce on subpcena duces tecum, 193, 297. Telephone, witness may testify as to message, 175. Tenant. (See Landlord and Tenant.) Tender of payment, admits debt, 58. Terms of court, judicially noticed, 166. Testator, admissions of, 60, 63. statements of, as bearing upon undue influence, 48, 49. declarations of as to intention and contents of will, and as to un- due influence, 99, 100. sanity or insanity provable by subscribing witness, 141, 142. INDEX. 461 (The numbers refer to pages.) Testator {continued). burden of proof as to testator's mental condition in probate pro- ceedings, 246, 247. intention of, when shown by parol evidence, 231, 234, 235, 375— 377- Testimony, defined, 4. Threats, evidence of, when relevant, 20, 21. confessions made under, 77-82. dying declarations not evidence of, 86. Time, divisions of, judicially noticed, 171, 172. Title, evidence of facts showing, 17, 355. Title-deeds. (See Deed.) Tort, admissions of defendant in actions for, effect of, 69. effect of judgment against one tort-feasor, 131. Towns and their location, judicially noticed, 170. Trade, usages of. (See Custom.) Trade secrets, privileged from disclosure, 294. Transaction, defined, 8. Treason, two witnesses needed in trials for, 303, 304. Treaties, when judicially noticed, 169. proof of, 399. Treatises, medical, scientific, etc., as evidence, 115, 116. Trespass, effect of judgment in action for, 123. Trust, established by oral evidence, 221. weight of evidence required to establish resulting trust, 240. Trustee, privilege as to producing documents in evidence, 295. effect of judgment appointing, 119. must prove good faith as to dealings with cestui que trust, 254. presumed to have executed deeds to complete title, when his duty so requires, 261. of bankrupt, debtor's admissions competent against, 72. Uncertainty, parol evidence to explain, 228, 229. Understanding, when witness may testify to his, 176. Undue influence in making will, evidence of, 29, 30. when charged, testamentary intention may be shown by prior statements, 48. burden of proof to establish, 247. between parties in fiduciary relations, 248, 253, 254, 304. United States, public documents of, how provable, 197. seal of, judicially noticed, 169. Revised Statutes of, provable by officially printed copy, 204, 205. 462 INDEX. (The numbers refer to pages.) Jnited States (continued). no examination of party before trial in U. S. courts in suits at law, 309- examiners in equity in U. S. courts cannot pass on objections to testimony, 310, 311. Usage. (See Custom.) Usury, provable by oral evidence to avoid writing, 221. weight of evidence required to establish, 240. burden of proof on defendant, 250. Uttering counterfeit money or forged instruments, similar acts to show knowledge, 43. Value of property, services, etc., how provable, 36, 37. provable by opinion-evidence, 143, 144. by price current lists, market reports, etc., 116, 117. Verdict, as evidence of public and general rights, 103. without judgment thereon, not a bar, 122. evidence of jurors not received to impeach their own verdict, 284. chance or quotient verdict, invalid, 286. View, of locus in quo by jury, 177. Voluntary confessions. (See Confessions.) Wagers, evidence in actions upon, 354. Waiver, 223. by client of privilege as to his attorney's testifying, 287. by patient or person confessing as to privilege of physician or clergyman, 292, 293. of rule excluding oral evidence to vary a writing, 236. War, existence of judicially noticed, 170, 171, 172. Water, percolating, no legal right acquired to by lapse of time, 260. Weather, record of, admissible, 113, 117. Weights and measures, judicially noticed, 171. Wife. (See Husband and Wife.) Will, proof of undue influence in making of, 29, 30, 48. declarations accompanying destruction of, provable to show in- tent, 26. burden of proof as to validity of will and testator's insanity, in probate proceedings, 246, as to undue influence, 247. proof of intent and contents by testator's declarations, 99, 100. publication of, 100. subscribing witness to. (See Subscribing Witness.) proof of lost or destroyed will, 09, 100. INDEX. 463 (The numbers refer to pages.) Will {continued). testator's attorney may testify to his directions, to support the will, 289. revoking of by cancellation or obliteration, 217. as evidence of pedigree, 107. ancient, presumption as to, 212-214. alterations in, when presumed to be made, 216, 217. parol evidence not admissible to vary, 220, 223. but testator's intention may be shown by parol in cases of "equivocation," or to rebut an equity, 231, 235, 375-377. Witness. (See Oral Evidence.) bribing to go away, when provable, 22. death, insanity, absence, etc., as ground for receiving former testimony, 108. may be required to stand up, etc., to be identified, 177, 298. suborning, effect of as evidence, 22, 23. may testify to his impression, intent, or belief, but not to a con- clusion of law, 176. when to be served with subpcena duces tecum. (See Subpoena duces tecum.) effect of his withholding document, when so served, 187, 193, 296. subscribing witness. (See Subscribing Witness.) competency of witnesses, 270-273. of parties and persons interested, 270, 271. (See Subpcena duces tecum.) of party to negotiable instrument to prove it invalid, 271. of children, 271-274, 380, 405. of persons of unsound mind, 271, 274, 275. of intoxicated persons, 272. of deaf and dumb persons, 272. of atheists, 272, 273. of infamous persons, 273. infamy how proved, 325. disability how removed, 273. of defendant or co-defendant in criminal cases, 275, 276, 401- 404. defendant may now be a witness but his failure to testify shall not create any presumption against him, 276. of husband and wife in criminal cases, 275-277, 401-403. in civil cases, 277-279. as to marital intercourse, 256. of wife in bastardy cases as to paternity of child, 256. 464 INDEX. (The numbers refer to pages.) Witness {continued). cannot disclose confidential communications, 277,279,280. cannot in general give evidence criminating each other, 297, 298. aliter,\xi collateral proceedings where evidence would only indirectly tend to criminate, 278, 298. of judges, referees, auditors, arbitrators, 280-282, 381. of merchant appraiser, or officer taking acknowledgment of deed, 282. of attorney or counsel in same case, 282. of grand and petty jurors, 284-286. of lawyers, their agents and interpreters, as to professional communications, 286-291. (See Attorney.) of clergymen and physicians, 292, 293, 382. privilege of witnesses : as to public affairs or communications between public officers, 282. as to information concerning the commission of offences, 283. as to confidential communications between husband and wife, 277, 279, 280. as to professional communications between attorney and client, 286-292. (See Attorney.) between clergymen and person confessing, 292, 293. between physician and patient, 292, 293. as to producing documents or giving oral evidence, tending to criminate or to expose to a penalty or forfeiture, 187, 294, 296-300. defendant in criminal case, voluntarily becoming witness, waives privilege as to criminating himself, 298. as to trade secrets, 294. as to producing documents on which witness has a lien, 295. as to producing title-deeds and private papers in evidence, 293, 294, 295. (See Subpoena duces tecum.) no privilege as to documents or testimony exposing witness to civil liability, 295, 299. corroboration 0/ witnesses, when required : in actions for breach of promise of marriage, 300, 301. in bastardy proceedings, 300, 301. in cases of seduction under promise of marriage, 301. in cases of abduction, rape, etc., 301. in suits for divorce, 301. to support the evidence of an accomplice, 301, 302. (See Ac- complice.) INDEX. 46s (The numbers refer to pages.) Witness {continued). to support claim on estate of deceased person, 302. to support the evidence of a witness falsus in uno, 303. in trials for perjury, 304, 305. in chancery cases, to support the bill, 305. number of witnesses required : in cases of treason, two or more required, 303, 304. in cases of perjury, more than the evidence of one needed, 3°4, 305- custom may be proved by one, 19, 305. examination of witnesses : witness to be under oath, 306. mode of administering oath, 307, 308. allowed to affirm, when, 306, 307. wilful false testimony, violating oath or affirmation, perjury, 306, 307, 308. witness may give evidence in court or out of court, 308-313. (See Oral Evidence ; Affidavit ; Depositions.) examination in court, order of, 313-315. witnesses, when ordered to withdraw from the court, 313. effect of their refusal, 313. expert witness may be required to withdraw, 313. but not a party, nor a person interested, nor the guardian of an infant party, 314. presumption from party's failure to call a particular witness, 314. order of proof discretionary with trial court, 315. witness's death or incapacity before examination is concluded, generally excludes evidence taken, 315, 316. aliter, in England and in some cases in this country, 315, 316. effect of death of a party before examination is concluded, 316. evidence of witness, who is found to be incompetent during examination, may be withdrawn from jury, 316. so incompetent testimony, though admitted, may be stricken out, 317. in some States, irrelevant evidence may be contradicted by party prejudiced, 318. exa?nination in chief, 313. must relate to facts in issue or relevant facts, 317. leading questions not generally permitted, 319. (See Leading Questions.) 466 INDEX. (The numbers refer to pages.) Witness {continued). party opening case must develop his whole case in chief, 319- but court may permit evidence in rebuttal which should have been given in chief, 319. cross-examination, 313-315. to be confined to matter testified to in chief, 298, 315, 317 aliter, in England and some American States, 314, 3I5.3I7- mere production of document, or verification of signa- ture, does not authorize cross-examination, 315. witness deemed to be that of the party who introduced him, 318. leading questions permitted on, 319, 320. aliter, in some States when the cross-examination re- lates to new matter, 320. questions permitted which test accuracy, veracity, or credibility, 320. irrelevant inquiries permitted as to specific facts, tending to disgrace, 320-323, 384, 3§5- extent of such examination discretionary with court, 320, 321, 323, 324. witness entitled to protection from abuse and insult, 3 2 4- witness may claim privilege of not answering, 320. but material questions as to disgracing facts must be answered, 320. questions must be such as to*affect credibility, 321. in N. Y. questions as to witness's being accused, in- dicted, arrested, etc., not allowable, 321. permissible in some States, 321, 322. these rules apply to parties as witnesses, 321. witness may be cross-examined as to facts showing his favor, interest, malice, bias, prejudice, etc., 322, 323. answers to irrelevant or collateral inquiries cannot be contradicted, 324, 326. except when the answers deny favor, interest, malice, bias, prejudice, etc., 325, 326. or in England and some States, when the answers deny conviction for crime, 325. but conviction usually provable only by record, and not by cross-examination, 325. (See Infamous Persons.) INDEX. 467- (The numbers refer to pages.) Witness {continued). answers to inquiries relevant to the issue may be contra- dicted, 326, 327, 331. but witness must on cross-examination be given a chance to explain the alleged contradictory statement, 327, 331. in some States, this is not necessary, 328. if his absence or death prevents his having a chance to explain, evidence of the contra- diction is not received, 327, 331, 332. the contradictory statements are not evidence of the facts asserted therein, 328. party to action, becoming a witness, may be im- peached in this way, 329. but if his statements constitute admissions, they are admissible without giving him a chance to explain, 329. cross-examination as to previous statements in writing, how made, 332-334, 387. in this country, writing exhibited to witness for authentication, and then itself read in evi- dence, 333. extent of cross-examination of women in trials for rape and seduction, 337-340. re-examination, 313, 315. is for explanation of matters referred to in cross-examina- tion, 318. court may allow it to extend to other matters, 318. whole conversation may be brought out, 318. leading questions not permitted on, 319. witness allowed to be recalled for further examination, 315. impeachment of witnesses : party cannot impeach his own witness, 320-331. nor opposing witness whom he makes his own by cross- examining as to new matter, 329. nor opposing party, if he calls him as a witness, 330. but may prove facts ot case by other witnesses, 329, 330, 33 1 . and may impeach witness whom law obliges him to call, 330. party surprised by his witness may examine him as to his contradictory statements, 330, 331. in England and some States, party may impeach his witness, 331, 386. 468 INDEX. (The numbers refer to pages.) Witness {continued). party may impeach adversary's witness, 334-336, 386. by showing by other witnesses his bad general reputation, 334- number of impeaching witnesses may be limited by court, 337. mode of examining such witnesses, 334, 335. general reputation incmired into, not specific wrong acts, 337. in most States only reputation for truth and veracity provable, 335. in others, it may relate to general moral character, 335- reputation, before, at, or after the trial may be proved, if the time is not too remote, 336. whether impeaching witness would believe impeached witness on oath, inquired into in many States, 335- by showing his former statements contradicting his tes- timony relevant to the issue, 326, 327, 331. (See Cross-examination, supra.) party to action impeached like other witnesses, 159, 336. impeaching witness may himself be cross-examined or impeached, 336. impeached witness may be sustained by party calling him, 336-338. by showing by ether witnesses his good general repu- tation, 337. to rebut evidence of his bad reputation, 337. or to rebut evidence of his conviction for crime, 337- or to rebut evidence that he has suborned wit- nesses or attempted to suppress testimony, 337- or, in a few States, to rebut discrediting facts brought out by his own cross-examination, 337- but he cannot be so sustained because the testimony of other witnesses is in conflict with his, 338. or when he is impeached by proof of his incon- sistent statements, 337. aliter, in some States, 337. INDEX. 469 (The numbers refer to pages.) Witness (continued). witness cannot be supported by proving that he made former statements similar to his testimony, 338. unless fabrication is charged against him, and he made them before the motive existed, 338. but in some States such evidence is received to rebut evidence of his having made incon- sistent statements, 338. refreshing memory of witnesses. (See Refreshing Memory.) Women, offences against, evidence competent on trials for, 337-340. (See Rape; Seduction; Adultery; Bastardy.) Words, defective or ambiguous in documents, evidence to explain, 228-230, 232. (See Oral Evidence.) meaning of, judicially noticed, 171, 172. THE END. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 836 828 4 'm ^» x K&