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.'-' 
 
 (<?) The question is, whether a piece of land by the roadside belongs 
 to the lord of the manor or to the owner of the adjacent land. The 
 fact that the lord of the manor owned other parts of the slip of land 
 by the side of the same road is deemed to be relevant. 3 
 
 Article 4.* 
 
 acts of conspirators. 
 
 When two or more persons conspire together to commit 
 any offence or actionable wrong, 4 everything said, done, 
 or written by any one of them in the execution or further- 
 ance of their common purpose, is deemed to be so said, 
 done, or written by every one, and is deemed to be a 
 relevant fact as against each of them ; 5 but statements 
 
 * See Note III. [Appendix]. 
 
 1 [ Twomley v. C. P. N. R. Co., 69 N. Y. 158 ; Kleiber v. People s R. 
 Co., 107 Mo. 240 ; Mitchell 'v. So. Pac. R. Co., 87 Cal. 62.] 
 
 2 Jones v. Williams, 2 M. & W. 326. 
 
 3 Doe v. Kemp, 7 Bing. 332 ; 2 Bing. N. C. 102. 
 
 ■•[Evidence admissible under this Article is not limited to in- 
 dictments for the crime of conspiracy, distinctively so-called {Clune 
 v. U. S., 159 U. S. 590), but is competent in all cases, civil and 
 criminal, where two or more persons have combined to do an unlaw- 
 ful act ; as^.^., where the trial is for murder, forgery, larceny, or 
 other crime {Coins v. State, 46 O. St. 457 ; People v. Parker, 67 Mich. 
 222 ; People v. Davis, 56 N. Y. 95), or where the proceeding is of a 
 civil nature, as for wrongful acts done with intent to defraud creditors, 
 etc. Knowerx. Cad den Clothing Co., 57 Ct. 202 ; Lowe v. Dalrymple, 
 1 17 Pa. 564; Gumbergv. Treusch, 103 Mich. 543; Peeler v. Webb, 
 1 13 111. 436 ; Cuylcr v. McCartney, 40 N. Y. 221.] 
 
 6 [The reason for the admission of this evidence is that such acts
 
 Chap. II.] THE LAW OF EVIDENCE. 15 
 
 made by individual conspirators as to measures taken in 
 the execution or furtherance of any such common purpose 
 are not deemed to be relevant as such as against any con- 
 spirators, except those by whom or in whose presence 
 such statements are made. 1 Evidence of acts or state- 
 ments deemed to be relevant under this Article may not 
 be given until the judge is satisfied that, apart from them, 
 there are prima facie grounds for believing in the exist- 
 ence of the conspiracy to which they relate. 2 
 
 and declarations form part of the res gestce {Dewey v. Moyer, 72 
 N. Y. 70 ; Comm. v. Scott, 123 Mass. 222 ; Niidd v. Burrows, 91 U. S. 
 426 ; Hartman v. Diller, 62 Pa. 37 ; Lincoln v. Claflin, 7 Wall. 132 ; 
 see Art. 3, and notes). Acts or declarations not done or made in 
 furtherance of the common design are not admissible {Gamsey v. 
 Rhodes, 138 N. Y. 461 ; State v. McGee, 81 la. 17). It is immaterial 
 at what time any one entered into the conspiracy ; he is deemed a 
 party to all acts done by any of the other conspirators before or 
 afterwards, in furtherance of the common design. Gr. Ev. i. § m ; 
 State v. Crab, 121 Mo. 554; Ochs v. People, 124 111. 399; U. S. v. 
 Johnson, 26 F. R. 682 ; Bonner v. State, 107 Ala. 97.] 
 
 1 [Thus statements made by a co-conspirator, after the conspiracy 
 has ended, as a narrative of past acts or measures taken, are not 
 deemed to be relevant, not forming part of the res gestae {People v. 
 McQuade, no N. Y. 284; N. Y. Guaranty Co. v. Gleason, 78 N. Y. 
 503 ; Heine v. Comm., 91 Pa. 145; Moore v. Shields, 121 Ind. 267; 
 Samples v. State, 121 111. 547; State v. Larkin, 49 N. H. 39). Con- 
 fessions or declarations made by one after the conspiracy is ended 
 can only be received as evidence against himself and not against his 
 associates {Comm. v. Ingraham, 7 Gray, 46 ; State v. Johnson, 40 
 Kan. 266 ; State v. Mmton, 1 16 Mo. 605 ; Sparfv. U. S., 156 U. S. 51, 
 56 ; State v. Arnold, 48 la. 566 ; People v. Arnold, 46 Mich. 268 ; 
 People v. Aleck, 61 Cal. 137 ; see Art. 21, post), unless they are made 
 in the presence of any of the other conspirators, when they may be 
 provable under the rule stated on p. 25, post, n. 1.] 
 
 ■[Ormsby v. People, 53 N. Y. 472 ; Miller v. Dayton, 57 la. 423 ; 
 Knower v. Cadden Clothing Co., 57 Ct. 202 ; People v. Parker, 67 
 Mich. 222 ; Phoenix Ins. Co. v. Moog, 78 Ala. 284. But the declarations 
 of an alleged conspirator are not admissible to prove the existence of 
 the conspiracy {Solomon v. A'irkwood, 55 Mich. 256). The judge may, 
 however, in his discretion admit evidence of the acts and declarations
 
 16 A DIGEST OF [Part I. 
 
 Illustrations. 
 
 (a) The question is, whether A and B conspired together to cause 
 certain imported goods to be passed through the custom-house on 
 payment of too small an amount of duty. 
 
 The fact that A made in a book a false entry, necessary to be made 
 in that book in order to carry out the fraud, is deemed to be a 
 relevant fact as against B. 
 
 The fact that A made an entry on the counterfoil of his cheque- 
 book showing that he had shared the proceeds of -the fraud with B, 
 is deemed not to be a relevant fact as against B. 1 
 
 (b) The question is, whether A committed high treason by imagining 
 the king's death ; the overt act charged is that he presided over'an 
 organized political agitation calculated to produce a rebellion, and 
 directed by a central committee through local committees. 
 
 The facts that meetings were held, speeches delivered, and papers 
 circulated in different parts of the country, in a manner likely to pro- 
 duce rebellion by, and by the direction of, persons shown to have 
 acted in concert with A, are deemed to be relevant facts as against A, 
 though he was not present at those transactions, and took no part in 
 them personally. 
 
 An account given by one of the conspirators in a letter to a friend, 
 of his own proceedings in the matter, not intended to further the 
 common object, and not brought to A's notice, is deemed not to be 
 relevant as against A. 2 
 
 of one alleged conspirator, which are alleged to have been done or 
 made in furtherance of the conspiracy, upon condition that proof of 
 the conspiracy be supplied during the trial ; but this should, in gen- 
 eral, only be allowed in urgent cases {Place v. Minster, 65 X. Y. 89 ; 
 People v. Fehrenbach, 102 Cal. 394 ; State v. Flanders, 1 18 Mo. 227 ; 
 State v. Grant, 86 la. 216 ; Hamilton v. People, 29 Mich. 195). The 
 existence of the conspiracy may be proved by circumstantial evidence 
 as well as by showing by direct evidence an actual preconcerted 
 agreement ; as by proving acts and declarations indicating that the 
 parties were all acting with a common design. People v. Peel-ens, 
 153 N. Y. 576; Cotton, v. Smith, [63 Mass. 411 ; People v. Arnold, |\> 
 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 
 
 (<?) The question is, whether A suffered damage in a railway 
 accident. 
 
 The fact that A conspired with B, C, and D to suborn false wit- 
 nesses in support of his case is deemed to be relevant, 1 as conduct 
 subsequent to a fact in issue tending to show that it had not happened. 
 
 Article 8.* 
 
 statements accompanying acts, complaints, statements 
 in presence of a person. 
 
 Whenever any act may be proved, statements accom- 
 panying and explaining that act made by or to the per- 
 son doing it may be proved, if they are necessary to 
 understand it. 2 
 
 * See Note V. [Appendix ; also Art. 3, note], 
 shown, not as creating a legal presumption of guilt, but as having a 
 tendency to establish his guilt {Allen v. U. S., 164 U. S. 492 ; Conun. 
 v. Boroschino, 176 Pa. 103; People v. Ross, 115 Cal. 233; Comm.v. 
 Annis, 15 Gray, 197 ; People v. Ogle, 104 N. Y. 511 ; Fox v. People, 
 95 111. 71) ; his attempt to avoid or escape arrest or to escape from 
 jail {Jamison v. People, 145 111. 357; Comm. v. Brigham, 147 Mass. 
 414 ; State v. Jackson, 95 Mo. 623 ; State v. Stevens, 67 la. 557) ; his 
 advice to an accomplice to escape {People v. Rathbnn, 21 We'nd. 509) ; 
 his possession of property obtained by the crime {Stover v. People, 56 
 N. Y. 315 ; Linsday v. People, 63 N. Y. 143 ; Comm. v.Parmenler, 101 
 Mass. 211 ; Brown v. Comm., 76 Pa. 319) ; his acts in disposal of such 
 property {Foster v. People, 63 N. Y. 619) ; his giving a false account of 
 himself when arrested {Comm. v. Goodwin, 14 Gray, 55; People v. 
 Conroy, 97 N. Y. 62, 80) ; his conduct after the crime was committed. 
 Greenfield v . People, 85 N. Y. 75 ; People v. Welsh, 63 Cal. 167 ; and 
 see Ruloff's case, 11 Abb. Pr. (N. S.) 245.] 
 
 1 Moriarty v. London, Chatham and Dover Ry. Co., L. R. 5 Q. B. 
 314 ; compare Gery v. Red/nan, 1 Q. B. D. 161. [Fgan v. Bowker, 5 
 Allen, 449 ; Heslop v. Heslop, 82 Pa. 537 ; Gulercile v. McKinley, 27 
 Hun, 320; Lyons v. Lawrence, 12 111. App. 531. So as to bribing a 
 juror. Hastings v. Stetson, 130 Mass. 76 ; Taylor v. Gilman, 60 N. H. 
 506 ; see p 22, note 3, supra.} 
 
 5 Illustrations {a), {ad), {ac), {b) and {ba). Other statements made 
 by such persons are relevant or not according to the rules as to state-
 
 24 A DIGEST OF [Part I. 
 
 In criminal cases [of rape] the conduct of the person 
 against whom the offence is said to have been committed, 
 and in particular the fact that soon after the offence 
 [she] made a complaint to persons to whom [she] would 
 naturally complain, are deemed to be relevant ; ' but the 
 terms of the complaint itself seem to be deemed to be 
 irrelevant. 
 
 ments hereinafter contained. See Ch. IV '. post. [Ay lesford Peerage 
 Case, L. R. n App. Cas. i ; Swift v. Life his. Co., 63 N. Y. 186, 190 ; 
 Kingsford v. Hood, 105 Mass. 495 ; Place v. Gould, 123 Mass. 347 ; 
 Merkel's Appeal, 89 Pa. 340.] 
 
 1 Illustration (c). [The form in which this rule is stated by Mr. 
 Stephen makes it applicable to all criminal cases (he omits the words 
 "of" rape" and has "he" for "she" in the fourth line), but the 
 rule is regarded in this country as one peculiar to cases of rape, 
 and it is at least questionable whether it applies to other crimes even 
 under English law. There appear to be only two English decisions 
 extending the rule to other crimes than rape, and they are both nisi 
 prius cases and of slight value. (This subject is fully discussed in the 
 Am. Law Rev., xiv. 829-838 ; and see Haynes v. Co/nm., 28 Gratt. 942.) 
 Still the doctrine of res gestce, as applied to other crimes, is sometimes 
 extended so far as to make the analogy to cases of rape a noticeable 
 one (see Driscoll v. People, 47 Mich. 413) ; and in some States an 
 analogous rule is applied, under statutes, to bastardy cases (Benton v. 
 Starr, 58 Ct. 285 ; Peed v. Haskins, 1 16 Mass. 198). 
 
 This rule, as applied to cases of rape (or an attempt to commit rape), 
 is fully supported by American decisions (Baccio v. People, 41 N. Y. 
 265 ; People v. O' Sullivan, 104 N. Y. 481 ; State v.Ivins, 36 N. J. L. 
 233 ; State v. Cook, 92 la. 483 ; Cross v. State, 132 Ind. 65 ; State v. 
 Carroll, 67 Vt. 477 ; Stevens v. People, 158 111. ill ; Parker v. State, 
 67 Md. 329 ; Lee v. State, 74 Wis. 45 ; People v. Stewart, 97 Cal. 238). 
 In these cases evidence of the particulars or details of the complaint 
 was held not admissible, and such is the general American rule ; but 
 in some States such evidence is admitted (State v. Kinney, 44 Ct. 153 ; 
 Burt v. State, 23 O. St. 394 ; Hill v. State, 5 Lea, 725), and by a recent 
 decision this is now the English rule (R. v.Lilly»ian, [1896] 2 Q. 13. 
 167). Some cases, however, say that the particulars are provable only 
 when the person so complaining is a girl of tender years (Hannon v. 
 State, 70 Wis. 448 ; see People v. Gage, 62 Mich. 271). 
 
 Though, in general, the complaint must be made " soon after " the 
 offence, yet if a longer delay in making it be adequately explained,
 
 Chap. II.] THE LAW OF EVIDENCE. 25 
 
 When a person's conduct is in issue, or is deemed to be 
 relevant to the issue, statements made in his presence 
 and hearing by which his conduct is likely to have been 
 affected, are deemed to be relevant.' 
 
 as e. g., if the delay be due to threats made by the perpetrator of the 
 wrong, to duress, to lack of suitable opportunity to complain, etc., the 
 fact of making complaint (and also the particulars in States admitting 
 such evidence) may still be proved ; and especially is this true where 
 the injury was done to a child. Thus a delay of several days, and in 
 some States even of several weeks or months, when thus explained, 
 has been held not to exclude the evidence {State v. Reid, 39 Minn. 
 277 ; People v. Duncan, 104 Mich. 303 ; Dunn v. State, 45 O. St. 249 ; 
 People v. Terwilliger, 74 Hun, 310, 142 N. Y. 629 ; State v, Byrne, 47 
 Ct. 465 ; State v. Wilkins, 66 Vt. 1 ; Jackson v. State, 91 Wis. 253). 
 In such cases, however, the lapse of time may be considered by the 
 jury as affecting the weight of the evidence. (Id.) 
 
 The making of a complaint is generally said to be admissible, 
 not as constituting part of the res gestce, but as a fact corroborative of 
 the testimony of the complainant (Gr. Ev. iii. § 213 ; Baccio v. People, 
 41 N. Y. 265, 268 ; State v. Mitchell, 68 la. 116 ; R. v. Lillyman, [1896] 
 2 Q. B. 167 ; Am. Law Rev., xiv. 832 ; see the cases supra). Hence, if 
 she does not testify, the evidence is not received, and that too, even 
 though she is incompetent to testify {Hornbeck v. State, 35 O. St. 277 ; 
 State v. Meyers, 46 Neb. 152). Some American decisions hold, how- 
 ever, that complaints made "immediately after" the commission of 
 the wrong are admissible as part of the res gestce {People v. Gage, 62 
 Mich. 271 ; McMurrin v. Rigby, 80 la. 322 ; Snow den v. U. S., 2 App. 
 D. C. 89 ; see Note V., Appendix). 
 
 The particulars of the complaint may be elicited on cross-exami- 
 nation of the complainant, or may be proved to confirm her testimony 
 after it has been impeached. State v. Jones, 61 Mo. 232 ; Barnett v. 
 State, 83 Ala. 40 ; State v.Langford, 45 La. Ann. 1177.] 
 
 1 R. v. Edmunds, 6 C. & P. 164 ; Neil v. Jakle, 2 C. & K. 709. 
 [Illustration (d). This is because tacit acquiescence in such state- 
 ments may be deemed an admission of their truth {Proctor v. Old 
 Colony R. Co., 154 Mass. 251 ; Johnson v. Day, 78 Me. 224 ; Jewett v. 
 Banning, 21 N. Y. 27). The rule applies when the statements made 
 impute a crime, as well as in other cases {Kelley v. People, 55 N. Y. 565 ; 
 Comm. v. Galavan, 9 Allen, 271 ; Ettinger v. Comtn., 98 Pa. 338 ; State 
 v. Reed, 62 Me. 129 ; Watt v. People, 126 111. 9 ; Conway v. State, 118 Ind. 
 482 ; see Art. 21, note, post) ; but it does not apply if the person be in-
 
 26 A DIGEST OF [Part I. 
 
 Illustrations. 
 
 (a) The question is, whether A committed an act of bankruptcy, by 
 departing the realm with intent to defraud his creditors. 
 
 Letters written during his absence from the realm, indicating such 
 an intention, are deemed to be relevant facts. 1 
 
 {ab) [The question is, whether a written paper which A destroyed 
 was his will, and what was his intent in destroying it. 
 
 Statements made by A at the time of destruction that the paper was 
 his will and giving his reasons for the act were deemed to be relevant. 
 But statements made after the destruction were deemed not to be 
 relevant.] 2 
 
 (ac) [The question is, whether a person is domiciled in the town of B. 
 
 Statements made by him, accompanying his removal from B to 
 the city of C, that he intended to make his home in C, are deemed to 
 be relevant.] 3 
 
 capable of hearing or understanding the statements, though these are 
 made in his presence [Ldnergan v. People, 39 N. Y. 39 ; Wright v. 
 Maseras, 56 Barb. 521 ; Martin v. Capital his. Co., 85 la. 643 ; Tufts v. 
 Charlestown, 4 Gray, 537 ; Comm. v. Sliney, 126 Mass. 49). So if the 
 statements are made in a judicial proceeding, silence does not admit 
 their truth, since there is no opportunity to respond {People v. Willett, g2 
 N. Y. 29 ; Collier v. Dick, 1 1 1 Ala. 263 ; State v. Mullins, 101 Mo. 514; 
 State v. Boyle, 13 R. I. 537 ; Johnson v. Holliday, 79 Ind. 151 ; but see 
 B 'lane hard v.Hodgkins, 62 Me. 119). Nor does "silence give consent," 
 if the circumstances are such as would not naturally call for a reply or 
 explanation {Drury v. Hervey, 126 Mass. 519; People v. Koerner, 
 154 N. Y. 355 ; Fry v. Stowers, 92 Va. 13 ; Peck v. Ryan, 1 10 Ala. 336 ; 
 People v. Larubia, 140 N. Y. 87 ; Pierce 's Admr-. v. Pierce, 66 Vt. 369 ; 
 cf. Hoffmann v. Hoffmann's Excr., 126 Mo. 486). If a reply is actually 
 made in any case, it is admissible in evidence with the statement. 
 Comm. v. Trefethcn, 157 Mass. 180 ; People v. Driscoll, 107 N. Y. 414 ; 
 Slate v.Rogers, 108 Mo. 202.] 
 
 1 Raivson v. Haigh, 2 Bing. 99 ; Batcman v. Bailey, 5 T. R. 512. 
 [ Eighmy v. People, 79 N. Y. 546 ; Waterman v. Whitney, 11 N. Y. 
 
 I57-] 
 
 3 [Viles v. Waltham, 157 Mass. 542 ; Fulham v. Howe, 62 Vt. 386 ; 
 Deer Isle v. Winterport, 87 Me. 37; Roberts Will, 8 Pai. 519; cf. 
 Chicago, etc. R. Co. v. Chancellor, 165 111. 438. So where a person on 
 leaving home and in going elsewhere to stay or live, states his reasons 
 for so doing, such declarations are admissible, being part of the res 
 gestae {Johnson v. Sherivin, 3 Gray, 374 ; Hunter v. State, 40 N. J. L.
 
 Chap. II.] THE LAW OF EVIDENCE. 37 
 
 (b) The question is, whether A was sane. 
 
 The fact that he acted upon a letter received by him is part of the 
 facts in issue. The contents of the letter so acted upon are deemed 
 to be relevant, as statements accompanying and explaining such 
 conduct. 1 
 
 (ba) [The question is, whether B is liable for the malicious prosecu- 
 tion of A. 
 
 The information as to A's guilt upon which B relied in instituting 
 the prosecution is deemed to be relevant, as tending to show whether 
 A had probable cause for the prosecution and was or was not actuated 
 by malice.]' 2 
 
 (c) The question is, whether A was ravished. 
 
 The fact that, shortly after the alleged rape, she made a complaint 
 relating to the crime, and the circumstances under which it was made, 
 are deemed to be relevant, but not (it seems) the terms of the com- 
 plaint itself. 3 
 
 The fact that, without making a complaint, she said that she had been 
 ravished, is not deemed to be relevant as conduct under this Article, 
 though it might be deemed to be relevant (e.g.) as a dying declaration 
 under Article 26. 
 
 (d) [The question is, whether A committed arson. 
 
 The fact that at the fire or soon afterwards A's son said to him, 
 " What did you want to set this afire for ? " and that he made no reply, 
 is deemed to be relevant.] 4 
 
 495 ; Rudd v. Rounds, 64 Vt. 432 ; Cattison v. Cattison, 11 Pa. 275 ; 
 Robinson v. State, 57 Md. 14 ; cf. Mutual Life Ins. Co. v. Hillmon, 145 
 U. S. 285). So replies given at the house of an absent defendant to the 
 sheriff, who is attempting to serve process upon him, are admissible 
 to show whether he can be found or is evading service. Buswell v. 
 Lincks, 8 Daly, 518 ; Gr. Ev. i. § 101.] 
 
 1 Wright v. Doe d. Tat/iam, 7 A. & E. 324-5 (per Denman, C. J.). 
 [See Barber's Appeal, 63 Ct. 393 ; Fosters Excrs. v. Dickerson, 64 Vt. 
 
 233-] 
 
 * \Fitzgibbon v. Brown, 43 Me. 169 ; Dwain v. Descalso, 66 Cal. 415. 
 So as to actions for false imprisonment. Neall v. Hart, 115 Pa. 347 ; 
 Perryman v. Lister, L. R. 4 E. & I. App. 521.] 
 
 3 7?. v. Walker, 2 M. & R. 212. See Note V., Appendix. [In England 
 now evidence is received of the particulars of the complaint. R. v. 
 Lillyman, [1896] 2 Q. B. 167.] 
 
 i [Comm.v. Brailey, 134 Mass. 527 ; see Brown v. State, 32 Tex. 
 App. 119.]
 
 28 A DIGEST OF [Part I. 
 
 Article 9. 
 
 facts necessary to explain or introduce relevant facts. 
 
 Facts necessary to be known to explain or introduce a 
 fact in issue or relevant or deemed to be relevant to the 
 issue, or which support or rebut an inference suggested 
 by any such fact, or which establish the identity of any 
 thing or person whose identity is in issue or is, or is 
 deemed to be, relevant to the issue, or which fix the time 
 or place at which any such fact happened, or which show 
 that any document produced is genuine or otherwise, or 
 which show the relation of the parties by whom any such 
 fact was transacted, or which afforded an opportunity for 
 its occurrence or transaction, or which are necessary to 
 be known in order to show the relevancy of other facts, 
 are deemed to be relevant in so far as they are necessary 
 for those purposes respectively. 1 
 
 Illustrations, 
 (a) The question is, whether a writing published by A of B is 
 libelous or not. 
 The position and relations of the parties at the time when the libel 
 
 1 [As to evidence of identity, see Udderzook v. Comm., 76 Pa. 340 ; 
 Johnson v. Comm., 115 Id. 369; Comm. v. Campbell, 155 Mass. 537; 
 State v. Witham, 72 Me. 531 ; of the relations of the parties, Meltz- 
 ger v. Doll, 91 N. Y. 365 ; Craig's Appeal, jy Pa. 448 ; Siberry v. 
 State, 133 Ind. 677 ; Roach v. Caldbeck, 64 Vt. 593 ; to support or 
 rebut an inference suggested by other facts in evidence, State v. 
 A damson, 43 Minn. 196 ; O'Brien v. Comm., 89 Ky. 354 ; Morris v. 
 Spojford, 127 Mass. 85. For other cases of relevant evidence under 
 this Article, see Pontius v. People, 82 N. Y. 339, 350 ; Bronner v. Frauen- 
 thal, 37 N. Y. 166 ; Quincey v. White, 63 N. Y. 370, 380 ; Comm. v. 
 Annis, 15 Gray, 197; Comm. v. Williams, 105 Mass. 62; People v. 
 Whitson, 43 Mich. 421 ; Wagenseller v. Simmers, 97 Pa. 465 ; for 
 cases of irrelevant evidence, see Barnes v. Keene, 132 N. Y. 13 ; Phil. 
 R. Co. v. Henrice, 92 Pa. 431 ; Thompson v. Bowie, 4 Wall. 463; 
 Craves v. Jacobs, 8 Allen, 141.]
 
 Chap. II.] THE LAW OF EVIDENCE. 2g 
 
 was published may be deemed to be relevant facts as introductory to 
 the facts in issue.' 
 
 The particulars of a dispute between A and B about a matter un- 
 connected with the alleged libel are not deemed to be relevant under 
 this Article, though the fact that there was a dispute may be deemed 
 to be relevant if it affected the relations between A and B. 1 
 
 (b) The question is, whether A wrote an anonymous letter, threaten- 
 ing B, and requiring B to meet the writer at a certain time and place 
 to satisfy his demands. 
 
 The fact that A met B at that time and place is deemed to be 
 relevant, as conduct subsequent to and affected by a fact in issue. 
 
 The fact that A had a reason, unconnected with the letter, for being 
 at that time at that place, is deemed to be relevant, as rebutting the 
 inference suggested by his presence.' 2 
 
 (c) A is tried for a riot, and is proved to have marched at the head 
 of a mob. The cries of the mob are deemed to be relevant, as explan- 
 atory of the nature of the transaction. 3 
 
 (d) The question is, whether a deed was forged. It purports to be 
 made in the reign of Philip and Mary, and enumerates King Philip's 
 titles. 
 
 The fact that, at the alleged date of the deed, Acts of State and 
 other records were drawn with a different set of titles, is deemed to 
 be relevant. 4 
 
 (e) The question is, whether A poisoned B, Habits of B known to 
 A, which would afford A an opportunity to administer the poison, are 
 deemed to be relevant facts. 5 
 
 (/) The question is, whether A made a will under undue influence. 
 
 1 Common practice. 
 
 2 R. v. Barnard, 19 St. Tri. 815, &c. [S. P. Hoar v. Abbott, 146 
 Mass. 290 ; Schlemmer v. State, 51 N. J. L. 23 ; People v. Dixon, 94 
 Cal. 255 ; Pr indie v. Glover, 4 Ct. 266 ; Comm. v. Brady, 7 Gray, 320.] 
 
 z R.x. Lord George Gordon, 21 St. Tri. 520. [See Stone v. Segur, 
 11 Allen, 568 ; Goins v. State, 46 O. St. 457 ; Comm. v. Ratcliffe, 130 
 Mass. 36 ; Alexander v. U. S., 138 U. S. 353 ; McRae v. State, 71 
 Ga. 96.] 
 
 4 Lady Lvy's Case, 10 St. Tri. 615. 
 
 6 R. v. Donellan, Wills' Circ. Ev. 192 ; and see my " History of the 
 Criminal Law," ill, 371. [Cf. McMeed v. Conwi., 114 Pa. 300; People 
 v. Buchanan, 145 N. Y. 1.]
 
 3 o A DIGEST OF [Part I. 
 
 His way of life and relations with the persons said to have influenced 
 him unduly, are deemed to be relevant facts. 1 
 
 (g) [The question is, whether A, an infant child, who was killed 
 while on his way from England to this country, was domiciled in 
 New York State at the time of his death. 
 
 The fact that his father, having resided in England, had lived in 
 New York several months prior to A's death, and had come there for 
 the purpose of making his home and living in that State, is deemed 
 to be relevant.] ' 2 
 
 (k) [The question is, whether a gold watch, chain, and locket, sold 
 to a wife, are necessaries, for which the husband should pay. 
 
 The fact that the husband wore diamonds, and kept a fast horse, and 
 had paid for silk dresses worn by her, is deemed to be relevant.] 3 
 
 id) [The question is, whether A was employed by B. 
 
 Conduct of A during the term of such employment, inconsistent with 
 the theory of such employment, is deemed to be a relevant fact.] 4 
 
 (/) [The question is, whether A has survived his partner B. 
 
 Evidence that a person having the same name as B has died at the 
 place of B's residence, is deemed to be relevant.] 5 
 
 (k) [The question is, whether A has been appropriating his em- 
 ployer's property. 
 
 The fact that for several years A has been living far beyond his 
 apparent means is deemed to be relevant, as tending to confirm other 
 evidence of dishonesty in taking the employer's property.] 6 
 
 (/) [The question is, whether A murdered B. 
 
 Evidence is relevant which tends to identify a body found six months 
 after B's disappearance as that of B by showing similarity in the color 
 of the hair, in the size of the body, in the appearance of the teeth, etc. 
 
 ' Boyse v. Rossborough, 6 H. L. C. 42-58. [Horn v. Pullman, 72 N. 
 Y. 269 ; Coil v. Patchen, 77 N. Y. 533 ; May v. Bradlee, 127 Mass. 414 ; 
 Spruit v. Spratt, 76 Mich. 384 ; Frew v. Clarke, 80 Pa. 170 ; Griffith 
 v. Diffenderffer, 50 Md. 466 ; Kenyon v. Ashbridge, 35 Pa. 157.] 
 
 2 [Kennedy v. Ryall, 67 N. Y. 379.] 
 
 s [Raynes v. Bennett, 1 14 Mass. 424.] 
 
 * [Miller v. Irish, 63 N. Y. 652.] 
 
 b [Daby v. Ericsson, 45 N. Y. 786. Identity of name is, in general, 
 prima facie evidence of identity of person. See Art. 101, note.] 
 
 6 [Hackett v. King, 8 Allen, 144 ; Martin v. State, 104 Ala. 71 ; see 
 N. Y. etc. Ferry Co. v. Moore, 1 N. Y. St. R. 374, 102 N. Y. 667 ; Bos- 
 Ion &* W. R. Co. v. Dana, 1 Gray, 83.]
 
 Chap. II.] THE LAW OF EVIDENCE. 31 
 
 Evidence of the following facts is also deemed relevant . — that blood- 
 stains were found on boards where an accomplice of A testified the 
 body of B had been placed ; that these stains were of human blood ; 
 that A had B's watch in his possession a few months after B's dis- 
 appearance ; that the accomplice was absent from home on the night 
 when, as he swore, he aided A in removing the body to another place; 
 that A was seen on this night to ride in the direction of this place.] ' 
 
 (m) [A, having suffered injury from the defective condition of a 
 highway, machine, structure, etc., sues B (the city in which the high- 
 way lies, or the owner of the machine, etc.), claiming that such defect 
 and the consequent injury are attributable to B's negligence. 
 
 Evidence that after the injury happened to A, the defect was 
 repaired by B, is deemed not to be relevant for the purpose of prov- 
 ing that B was negligent, as alleged, before the injuryj' 2 
 
 (n) [The question is, whether A, a physician, has been guilty of mal- 
 practice and neglect. 
 
 The fact that A has not presented any bill or asked any pay for his 
 services is deemed not to be relevant.] 3 
 
 (0) [The question is, whether a credit for goods sold was given to 
 the defendant or his son. 
 
 Evidence that the son had no property at the time of the sale, and 
 was entirely irresponsible, is deemed not to be relevant.] 4 
 
 1 [Linsday v. People, 63 N. Y. 143 ; see Greenfield v. People, 85 N. 
 Y. 75 ; People v. Beckwith, 108 N. Y. 67 ; People v. Johnson, 140 N. Y. 
 350; State v. Ward, 61 Vt. 153; People v. Sanders, 114 Cal. 216; 
 Comm. v. Dorsey, 103 Mass. 412.] 
 
 2 [Corcoran v. Peekskill, 108 N. Y. 151 ; Morse v . Minneapolis, etc. 
 R. Co., 30 Minn. 465; Nal ley v. Hartford Carpet Co., 51 Ct. 524 ; 
 Langworthy v. Green Township, 88 Mich. 207 ; Lang v. Sanger, 76 
 Wis. 71 ; Terr e Haute, etc. R. Co. v. Clem, 123 Ind. 15 ; Skinners v. 
 Proprietors, 154 Mass. 168 ; Columbia R. Co. v. Hawthorne, 144 U. S. 
 202; Sappenfield v. Alain St. R. Co., 91 Cal. 48. In some States, 
 however, such evidence is deemed competent as an implied ad- 
 mission of prior negligence. (Id.)] 
 
 z [Baird v. Gillctt, 47 N. Y. 186 ; cf. McBride v. Grand Rapids, 
 49 Mich. 239 ; Barnes v. Keene, 132 N. Y. 13.] 
 
 4 [Green v. Disbroiu, 56 N. Y. 334 ; but see Lee v. Wheeler, 1 1 Gray, 
 236 ; cf. Buswell Trimmer Co. v. Case, 144 Mass. 350 ; Canaday v. 
 Krum, 83 N. Y. 67, 73 ; McLoghliu v. Mohawk, etc. Bk., 139 N. Y. 
 5I4,524-]
 
 32 A DIGEST OF [Part I. 
 
 (p) [The question is, whether A, the maker of a promissory note, 
 paid it shortly before he died. 
 
 Evidence that for a year before his death he had been hopelessly 
 insolvent, and had had great difficulty in procuring means to meet 
 his obligations, is deemed not to be relevant. " It is common for both 
 solvent and insolvent men to pay some of their debts and to leave 
 some unpaid."] ' 
 
 (q) [The question is, whether an executor is liable to pay a note of 
 long standing, signed by his testator. 
 
 Evidence that the testator was in the habit of paying his debts 
 promptly, or that another person had agreed to pay them for him, or 
 that he made a list of his debts in which this note was not included, is 
 deemed not to be relevant for the purpose of proving that the note 
 has already been paid.] 2 
 
 (r) [The question is, whether A is the father of B, a young child. 
 
 Evidence that B resembles A, or counter-evidence to show non- 
 resemblance, is deemed not to be relevant. 3 But, by some decisions, 
 B may be exhibited to the jury to enable them to judge, from its 
 resemblance or non-resemblance to A, whether A is its father.] 4 
 
 1 [Xenia Bk. v. Stewart, 114 U. S. 224 ; but see Atwoodv. Scott, 99 
 Mass. 177 ; cf. Bean v. Tonnele, 94 N. Y 381.] 
 
 ' 2 [Abercrombie v. Sheldon, 8 Allen, 532; cf. Martin v. Shannon, 
 92 la. 374 ; Burke v. Kaley, 138 Mass. 464 ; Carroll v. Deimel, 95 N. 
 Y. 252.] 
 
 3 [ Young v. Makepeace, 103 Mass. 50 ; Jones v. Jones, 45 Md. 144 ; 
 Eddy v. Gray, 4 Allen, 435 ; cf . People v. Carney, 29 Hun, 47 ; but see 
 Faulk v. State, 52 Ala. 427.] 
 
 4 [Gaunt v. State, 50 N. J. L. 490 ; Scott v. Donovan, 153 Mass. 378 ; 
 Crow v. Jordan, 49 O. St. 655; Gilmantonv. Ham, 38 N. H. 108; 
 contra, Rcitz v. State, 33 Ind. 187 ; Clark v. Bradstreet, 80 Me. 454 ; 
 Hanawalt v '. State, 64 Wis. 84 ; Robnetl v. People, 16 111. App. 299. 
 In Iowa it has been held that a child two years and one month old 
 might be exhibited to the jury {State v. Smith, 54 la. 104), but not a 
 child three months old, because at such an age its features would be 
 too immature (State v. Danforth, 48 la. 43). A photograph of the 
 alleged father has been admitted in evidence, after his death, for the 
 purpose of comparison with the child, the latter being old enough to 
 have sufficiently developed features. Shorten v Judd, 56 Kan. 43 ; 
 see Farrell v. IVezts, 160 Mass. 288 ; cf. McKenna v. Paper Co., 176 
 Pa. 309, where photographs were compared with each other in order 
 to ascertain a person's identity.]
 
 Chap. II.] THE LAW OF EVIDENCE. 33 
 
 (s) [The question is, whether A is insane. 
 
 The fact that his father, mother, or other blood relation is or has 
 been insane, is deemed to be relevant.] 1 
 
 1 [State v. Hoyt, 47 Ct. 518 ; Prentis v. Bates, 93 Mich. 234 ; Baxter 
 v. Abbott, 7 Gray, 71 ; Shaeffer v. State, 61 Ark. 241 ; Walsh v. People, 
 88 N. Y. 458. But as to some kinds of insanity, it may be necessary 
 to prove them to be inheritable in order to make such evidence com-, 
 petent ; so held as to melancholia from intemperance. Reichenbach v. ' 
 Ruddach, 127 Pa. 564.]
 
 34 A DIGEST OF [Part I. 
 
 CHAPTER III. 
 
 OCCURRENCES SIMILAR TO BUT UNCONNECTED 
 WITH THE FACTS IN ISSUE, IRRELEVANT EXCEPT 
 IN CERTAIN CASES. 
 
 Article io.* 
 
 similar but unconnected facts. 
 
 A fact which renders the existence or non-existence of 
 any fact in issue probable by reason of its general resem- 
 blance thereto, and not by reason of its being connected 
 therewith in any of the ways specified in Articles 3-9, 
 both inclusive, is deemed not to be relevant to such fact, 1 
 except in the cases specially excepted in this chapter. 
 
 * See Note VI. [Appendix]. 
 1 [Barney v. Richard, 157 U. S. 352 ; Wise v. Ackerman, 76 Md. 375. 
 But where the question is as to the cause of a certain occurrence, 
 the fact that similar occurrences have, under like conditions, been 
 produced by a particular cause is deemed to be relevant {Evans v. 
 Keystone Gas Co., 148 N. Y. 112; Rockford Gas Light Co. v. Ernst, 
 68 111. App. 300) ; and where the question is whether a certain state of 
 things existed at a given time, the fact that a cause was in operation 
 which, under like conditions, constantly produced such a result, is 
 deemed to be relevant (Up/iam v. Salem, 162 Mass. 483). So the 
 quality of an act or thing, as prudent or negligent, safe or dangerous, 
 etc., may be exhibited, by showing that under like conditions it has 
 produced similar favorable or injurious results, as in the case in 
 question (see Illustrations // to m). This rule is analogous to that 
 stated in Article 12, post. But if the conditions are not substantially 
 the same in all cases, the evidence is not relevant. Morse v. Minn. 
 etc. R. Co., 30 Minn. 465; Hunt v. Lowell Gas Co., 8 Allen, 169; 
 Cleveland, etc. R. Co. v. Newell, 104 Ind. 264 ; Bloomington v. Legg, 
 151 111. 9; Shepardv. Hill, 151 Mass. 540 ; Randolph v. Bloomfield, 
 77 la. 50 ; Brewing Co. v. Bauer, 50 O. St. 560 ; GriJJin v. Auburn, 58 
 N. H. 121 ; Hodgkins v. Chappell % 128 Mass. 197 1 cf. Stale v. Flint, 
 60 Yt. 304.]
 
 Chap. III.] THE LAW OF EVIDENCE. 35 
 
 Illustrations. 
 
 (a) The question is, whether A committed a crime. 
 
 The fact that he formerly committed another crime of the same 
 sort, and had a tendency to commit such crimes, is deemed to be 
 irrelevant. 1 
 
 (ab) [A is indicted and brought to trial for the robbery of a bank- 
 key from the janitor of the bank. 
 
 Evidence of a burglary committed on the bank immediately after 
 the taking of the key, of the breaking open of the safe and the larceny 
 of the valuables therein, is deemed to be relevant ; also that defend- 
 ant had for two years been engaged in a conspiracy to rob the bank, 
 and had made two prior attempts to carry out this purpose.]' 2 
 
 (b) The question is, whether A, a brewer, sold good beer to B, a 
 publican. The fact that A sold good beer to C, D, and E, other pub- 
 
 1 R. v. Cole, 1 Ph. Ev. 508 (said to have been decided by all the 
 Judges in Mich. Term, 18 10). [People v. Sharp, 107 N. Y. 427 ; People 
 v. McLaughlin, 150 N. Y. 365, 386 ; Jordan v. Osgood, 109 Mass. 457 ; 
 Costelo v. Crowell, 139 Mass. 588; Janzen v. People, 159 111. 440; 
 Boyd v. U. S., 142 U. S. 450 ; Shaffner v Comm., 72 Pa. 60. But the 
 commission of another crime may be shown, if it supplies a motive or 
 constitutes preparation for the commission of the one in question 
 (Pierson v. People, 79 N. Y. 424 ; Comm. v. Choate, 105 Mass. 451, 458 ; 
 Painter v. People, 147 111. 444; People v. Harris, 136 N. Y. 423; 
 McConkey v. Comm., 101 Pa. 416; State N.Kline, 54 la. 183; see 
 Illustration (ab) ; also Art. 7, supra) ; or if it tends to prove any fact 
 constituting an element of the crime charged ( Weed v. People, 56 N. 
 Y. 628) ; or if the different crimes form parts of one general scheme 
 or transaction and exhibit the same general purpose (Illustration 
 (ab) ; People v. Murphy, 135 N. Y. 450 ; Scott v. People, 141 111 195; 
 Comm. v. Scott. 123 Mass. 222 ; Brown v. Comm., 76 Pa. 319 ; Pa. Co. 
 
 for Insurance v, Phila. etc. R. Co., 153 Pa. 160; State v. Lee, 91 la. 
 499 ; People v. Mead, 50 Mich. 228 ; People v. Smith, 106 Cal. 7} ; 
 Halleck v. State, 65 Wis. 147) ; and in other like cases (see Comm. v. 
 Jackson, 132 Mass. 16, 19 ; Goerscn v. Comm., 99 Pa. 388). Thus 
 former attempts to commit the same crime may be proved to show 
 criminal intent, the identity of the actor, etc, {Comm. v. Bradford, 
 126 Mass. 42 ; State v. Nugent, 71 Mo. 136 ; Xicholas' Case, 91 Va. 741 ; 
 People v. O Sullivan, 104 N. Y. 481). These latter cases fall properly 
 under Arts. 11 and 12, post. The whole subject is well discussed in 
 Farris v. People, 129 111. 521 and People v. Sharp, 107 N. Y. 427.] 
 
 2 [Hope v. Peofile, 83 N. Y. 418.]
 
 36 A DIGEST OF [Part I. 
 
 licans, is deemed to be irrelevant, 1 (unless it is shown that the beer 
 sold to all is of the same brewing).' 2 
 
 (c) [The question is, whether certain shovel-handles sold by A to B 
 were of good quality. 
 
 Evidence that shovel-handles sold by A to another party at the same 
 time were of good quality, is deemed to be relevant, if accompanied 
 by evidence that the handles sold to both purchasers were of the same 
 kind and quality.] 3 
 
 (d) [The question is, whether A, having killed a person at night, 
 knew him to be an officer of the law. 
 
 The fact that there was a lighted street lamp near by is relevant, as 
 tending to show that A could see the official uniform. But to prove 
 the amount of light cast by the lamp on this night, evidence showing 
 the amount of light cast by the same lamp on a night four months 
 afterwards is irrelevant, (the conditions not being shown to be the 
 same).] 4 
 
 (e) [The question is, whether A has a right to travel on a railroad 
 ticket after the time limited therein for its use, without the payment 
 of fare. 
 
 The fact that he has at other times purchased similar tickets and 
 used them after the time specified, without being required to pay fare, 
 is irrelevant.] 5 
 
 (/) [The question is, what is the value of a certain vessel. 
 
 Evidence to prove the value of other vessels with which she" might 
 be compared is irrelevant.] 6 
 
 1 Holco)nbe v. Hewson, 2 Camp. 391 ; [cf. Lake v. Clark, 97 Mass. 
 346.] 
 
 s See Illustrations to Article 3 ; [see Comm. v. Goodman, 97 Mass. 
 117; Luetgertv. Volker, 153 111. 385.] 
 
 3 [Ames v. Quimby, 106 U. S. 342 ; cf. Albany, etc. Co. v. Lundberg, 
 121 U. S. 451 ; Pike v. Fay, 101 Mass. 134; Thill's Sons v. Perkins 
 Lamp Co., 63 Ct. 478.] 
 
 4 [ Yates v. People, 32 N. Y. 509 ; see King v. N. Y. Central, etc. R. 
 Co., 72 N. Y. 610; Fillo v. Jones, 2 Abb. Dec. 121 ; Stone v. Ins. Co., 
 71 Mich. 81.] 
 
 5 [Hill v. Syracuse, etc. R. Co., 63 N. Y. 101 ; cf. Harris v. Howard, 
 56 Vt. 695 ; Dana v. Nat. Bk. of Republic, 132 Mass. 156.] 
 
 6 [Blanchard v. Steamboat Co., 59 N. Y. 292 ; Gouge v. Roberts, 53 
 N. Y. 619; Huntington v. Atlrill, 118 N. Y. 635; but see Berney v. 
 Dins?nore, 141 Mass. 42 ; Carr v. Moore, 41 N. H. iji. But in Mas- 
 sachusetts and some other States the value of land may be proved by
 
 Chap. III.] THE LAW OF EVIDENCE. 37 
 
 (g) [The question is, whether a servant was negligent on a particular 
 occasion. 
 
 Evidence that he was negligent on previous occasions is irrelevant; 
 but if the question were whether the master was negligent in retaining 
 in his employ a careless and incompetent servant, evidence of the 
 servant's prior acts of negligence to the master's knowledge, would 
 be relevant.] ' 
 
 (h) [The question is, what sum A is entitled to receive from B, as 
 compensation for services rendered by A as B's attorney, agent, or 
 servant. 
 
 Evidence as to what compensation has been paid to other persons 
 by B for similar services is deemed not to be relevant.]' 2 
 
 (z) [The question is, whether A is hired by his employer B by the 
 week or by the year. 
 
 Evidence that other employees of B are hired by the year is deemed 
 to be irrelevant.] 3 
 
 (J) [The question is, whether A, having been injured by slipping 
 
 showing the prices received upon sales of other lands of like descrip- 
 tion in the vicinity at times not too remote {Haven v. Coitnty Commrs., 
 155 Mass. 467 ; St. Louis, etc. R. Co. v. Clark, 121 Mo. 169 ; Laing v. 
 United N.J. R. Co., 54 N. J. L. 576; Elmore v. Johnson, 143 111. 513 ; 
 Mayor oj Baltimore v. Smith Co., 80 Md. 458; Washburn v. Mil- 
 waukee R. Co., 59 Wis. 364). The contrary rule, however, prevails in 
 some States {Matter oj Thompson, 127 N. Y. 463 ; Becker v. Phila. 
 etc. R. Co., 177 Pa. 252; Mills, Em. Domain, §170; cf. Kerr v. So. 
 Park Commrs., 117 U. S. 379; Witmark v. N. Y. Elev. R. Co., 149 
 N. Y. 393). What was paid for property when it was bought is some 
 evidence of its present value, hi re Johnston, 144 N. Y. 563 ; Ken- 
 drick v. Beard, 90 Mich. 589.] 
 
 1 [Baulec v. JV. Y. etc. R. Co., 59 N. Y. 356 ; Whittaker v. Delaware, 
 etc. R. Co., 126 N. Y. 544 ; Western Stone Co. v. Whalen, 151 111. 472 ; 
 Baltimore Elevator Co. v. Neal, 65 Md. 438 ; Grube v. Mo. Pac. R. 
 Co., 98 Mo. 330; cf. Connors v. Morton, 160 Mass. 333; Michigan 
 Cent. R. Co. v. Gilbert, 46 Mich. 176, contra, Stale v. Railroad Co., 
 52 N. H. 528; see p. 46. n. ^fiost ; also Arts. 12, 57, and notes.] 
 
 3 [Playjord v. Hutchinson, 135 Pa. 426; Seurer v. Horst, 31 Minn. 
 479; Linn v. Gilman, 46 Mich. 628; Bonynge v. Field, 81 N. Y. 159; 
 cf. Newhall v. Appleton, 102 N. Y. 133.] 
 
 3 [Lichtenhein v. Fisher, 6 App. Div. (N. Y.) 385 ; Schneider v. Hill, 
 19 Misc. 56.]
 
 38 A DIGEST OF [Part I. 
 
 and falling upon a sidewalk, can recover damages from the city for 
 its alleged neglect to keep the walk in a safe condition. 
 
 The fact that other persons slipped and fell upon the same walk, 
 while its condition remained the same as when A fell, is relevant to 
 show that it was unsafe for use at the time of his fall.] ' 
 
 (/■) [The question is, whether the act or structure of A, which fright- 
 ened B's horse, was one which was calculated to render the use of the . 
 highway with horses dangerous. ■ 
 
 Evidence that other horses of ordinary steadiness were frightened ' 
 by the same act or structure, or one of the same kind under like cir- 
 cumstances, is relevant.] - 
 
 (/) [The question is, whether a loom-attachment will work success- 
 fully on a certain loom. 
 
 The fact that it works successfully on another loom of substantially 
 the same construction, is relevant.] : " 
 
 (;;/) [A, having been injured in using (as he lawfully might, as cus- 
 
 1 [District of Col. v. Amies, 107 U. S. 519 ; Quinlan v. Utica, 11 Hun, 
 217, 74 N. Y. 603; Magee v. Troy, 48 Hun, 383, 119 N. Y. 640; Gillrie 
 v. Lockport, 122 N. Y. 403 ; Lombar v. East Tawas, 86 Mich. 14; 
 Topeka v. Sherwood, 39 Kan. 690; Cook v. New Durham, 64 N. H. 
 419; Phelps v. Winona, etc. R. Co., 37 Minn. 485; Birmingham R. Co. 
 v. Alexander, 93 Ala. 133; Golden v. Clinton, 54 Mo. App. 100; Row- 
 lands v. Elgin, 66 111. App. 66; cf. Eraser v. Schroedcr, 163 111. 459; 
 Kent v. Lincoln, 32 Yt. 591. But some cases are to the contrary 
 {Phillips v. Willow, 70 Wis. 6; Moore v. Richmond, 85 Ya. 538; 
 Pre inner v. A T ewcastle, 83 Me. 415). 
 
 Evidence that other persons had been injured at the same place 
 has also been received to show that the city had notice of the defect. 
 City of Goshen v. England, 119 Ind. 368 ; Alberts v. Vernon, 96 Mich. 
 549; Chicago v. Powers, 42 111. 169; Ashtabula v. Bartram, 3 O. C. C. 
 640.] 
 
 : [Crocker v. McGregor, 76 Me. 282; Bonis v. Temple, 162 Mass. 
 312; /Ian 1 II v. Albemarle, etc. R. Co., no N. C. 215; Gordon v. 
 Boston &= M. R. Co., 58 N. H. 396 ; House v. Metcalf, 27 Ct. 631 ; cf. 
 Lewis v. Eastern R. Co., 60 N. H. 187 ; Brown v. Eastern, etc. R. Co., 
 22 Q\ B. D. 391 ; Piollct v. Simmers, 106 Pa. 95 ; contra, Cleveland, 
 etc. R. Co. v. Wynant, 114 Ind. 525 ; Ploorv. Delafield, 69 Wis. 273.] 
 
 3 [Briefly v. Davoll Mills, 128 Mass. 291 ; cf. Locke v. Express, etc. 
 Co., 71 Mich. 263 ; Bayer v. Rhinehart, 17 X. Y. S. 346, 137 N. Y. 564 ; 
 Tremblay v. I/arndcn, 162 Mass. 383 ; Bradley v. Hartford, etc. Lns. 
 Co., 19 F. R. 246.]
 
 Chap, til.] THE LAW OF EVIDENCE. 39 
 
 tomer, passenger, traveler, etc.) B's appliance, machine, structure, etc., 
 claims that the injury is due to B's negligence in not having said 
 appliance, machine, structure, etc., in reasonably safe condition for 
 use. Evidence, introduced in B's behalf, that many others had for a 
 long time used the same thing (or an identical thing or things) in the 
 same condition, and that no similar injury had ever occurred, is 
 deemed to be relevant. Such evidence tends to show that the appli- 
 ance, machine, structure, etc., is such as a reasonably prudent person, 
 exercising reasonable diligence, would properly consider safe for the 
 purposes for which it was designed.] ' 
 
 (n) [A sues B (a city, village, railway company, bridge company, 
 etc.) to recover damages for an injury alleged to have been sustained 
 through a defect in a highway, railway track, bridge, etc., which defect 
 is alleged to be due to B's neglect or default. A submits no evidence 
 as to the condition of the way, track, bridge, etc., at the precise place 
 where the injury is alleged to have occurred, but offers evidence that 
 the same was defective or dangerous in the immediate vicinity of this 
 place. Such evidence is deemed to be relevant, if it is proved, or if 
 the circumstances of the case justify the conclusion, that the condition 
 of the place where the injury occurred and of the place to which the 
 evidence relates was substantially the same. 2 
 
 A also submits evidence to show what was the condition of the place 
 
 1 [Field v. Davis, 27 Kan. 400 (grain elevator) ; Doyle v. St. Paul, 
 etc. R. Co., 42 Minn. 79 ; McGrell v. Buffalo Office Bldg. Co., 153 N. 
 Y. 265 (passenger elevator); Frobisherv. Fifth Ave. Co., 151 N. Y. 
 431 (omnibus) ; Lafflin v. Buffalo, etc. R. Co., 106 N. Y. 136 (platform 
 of railway station) ; Loftus v. Union Ferry Co., 84 N. Y. 455 (ferry 
 float) ; Cleveland v. N.J. Steamboat Co., 68 N. Y. 306 (steamboat) ; 
 cf. Calkins v. Hartford, 33 Ct. 57 (sidewalk) ; to the contrary are 
 Hodges v. Bearse, 129 111. 87 (elevator) ; Langworthy v. Green T y p, 
 88 Mich. 207 (highway) ; Branch v. Libbey, 78 Me. 321 (highway).] 
 
 2 [Barrett v. Hammond, 87 Wis. 654 ; Vicksburg, etc. R. Co. v. Put- 
 nam, 118 U. S. 545 ; Nashville, etc. R. Co. v. Johnson, 15 Lea, 6jy (con- 
 dition of railway track shown for 100 yards on either side) ; Ohio 
 Valley R. Co. v. Watson, 93 Ky. 654 ; Fort Wayne v. Combs, 107 Ind. 
 75 (break in sewer 100 feet distant) ; Sidekum v. Washburn, etc.R. Co., 
 93 Mo. 400 (railway track, \%. miles held too far distant and evidence 
 rejected) ; Campbell v. Kalamazoo, 80 Mich. 655 (plank walk, con- 
 dition near by proved). Evidence of this kind is, also, generally re- 
 ceived to show notice of the condition of the way, track, bridge, etc., 
 to the municipality, railroad company, etc., in order to establish its
 
 40 A DIGEST OF [Part I. 
 
 where the injury occurred some time before the injury or some time 
 after the injury, as tending to show what was its condition at the time 
 of the injury. This evidence is deemed to be relevant, if it is also 
 proved, or if the circumstances justify the conclusion, that the condi- 
 tion of the place has continued without change during the interval.] 1 
 
 (o) [The question is, whether a fire was caused by sparks and coals 
 from a locomotive of a railroad company. 
 
 The fact that passing locomotives of similar construction have on 
 other occasions, not too remote, caused fires at or near the place in 
 question by scattering sparks and coals, is deemed to be relevant ; so 
 also is Ihe fact that they have thus repeatedly scattered sparks and 
 coals, though no actual fires were thereby caused, since such a cause 
 may have occasioned fire in this instance, though not in others. But 
 preliminary evidence should be given excluding the probability that 
 the fire in question originated from another source.] ' 2 
 
 negligence in not having made repairs at the place of the injury. 
 Girardv. Kalamazoo, 92 Mich. 610 ; McConnell v. Osage, 80 la. 293 ; 
 Shaw v. Sun Prairie, 74 Wis. 105 ; Shelbyville v. Brant, 61 111. App. 
 153 ; McGuire v. Ogdensburgh, etc. R. Co., 18 N. Y, S. 313.] 
 
 1 \Jessup v. Osceola Co., 92 la. 178 (condition of bridge shown "a few 
 days after ") ; Bloomington v. Osterlee, 139 111. 120 (two weeks after) ; 
 Swadley v. Mo. Pac. R. Co., 118 Mo. 268 ; Stewart v. Everts, 76 Wis. 
 35 (six months after) ; Sullivan v. Syracuse, 77 Hun, 440 (three days 
 after) ; McCulloch v. Dobson, 133 N. Y. 1 14 (a few months) ; Hunt v. 
 City of Dubuque, 96 la. 314 (one year before); but evidence to 
 show the condition of a railway track one or more years afterwards 
 has been rejected as too remote (Sto/ier v. Mo. Pac. R. Co., 91 Mo. 
 509). So where the conditions have changed, the evidence is rejected, 
 even though the interval be short. Woodcock v. Worcester, 138 Mass. 
 268 (a week before).] 
 
 3 {Field v. N. Y. C. R. Co., 32 N. Y. 339; Crist v. Erie R. Co., 58 
 N. Y. 638 ; Grand Trunk R. Co. v. Richardson, 91 U. S. 454 ; Boyce v. 
 Cheshire R. Co., 43 N. H. 627 ; Ky. Cent. R. Co. v. Barrow, 89 Ky. 
 638 ; Steele v. Pacific, etc. R. Co., 74 Cal. 323 ; Campbell v. Mo. Pac. R. 
 Co., 121 Mo. 340 ; see Atchison, etc, R. Co. v. Stanford, 12 Kan. 354 ; 
 Albert v. Nor. Central R. Co., 98 Pa. 316. In some of these cases it is 
 also said that evidence of this kind may show a habit of negligence in 
 running the trains. The last sentence of the Illustration states a rule 
 declared by the New York cases, (and see Wiley v. West fersey R. Co., 
 44 N. J. L. 247 ; Johnson v. Chicago, etc. R. Co., yj la. 666). 
 
 So where it is claimed that the fire was set by a particular engine,
 
 Chap. III.] THE LAW OF EVIDENCE. 41 
 
 (p) [The question is, whether a fire causing the destruction of a cer- 
 tain building by night was of incendiary origin. 
 
 The fact that an attempt was made on the same night to set fire to a 
 neighboring building by the use of similar means is relevant.] ' 
 
 (0) [The question is, whether the foundering of a vessel, while she is 
 being towed by a tug, is caused by her being overladen and unsea- 
 worthy, or is due to the reckless and improper rate of speed at which 
 she is towed. 
 
 The fact that she has been frequently towed in safety with as heavy 
 or heavier loads and at as high a rate of speed is deemed to be 
 relevant, as tending to show that negligence in towing must have 
 caused the disaster. The fact that she has repeatedly foundered 
 while being carefully towed is deemed to be relevant, as indicating 
 that her own improper condition must have occasioned the loss.] 2 
 
 (r) [The question is, whether the sickness of A, a seaman, while he 
 was upon a ship at sea of which B was master, was due to B's neglect 
 in failing to furnish suitable provisions and anti-scorbutics. 
 
 Evidence of the similar sickness of others of the crew about the 
 same time was deemed to be relevant, on account of the similarity of 
 the conditions and circumstances affecting all the crew.] 3 
 
 evidence tending to show that other fires were set by the same engine 
 about the same time is admissible (Haseltine v. Concord R. Co., 64 
 N. H. 545 ; Patton v. St. Louis, etc. R. Co., 87 Mo. 117 ; Tanning v. 
 Chicago, etc. R. Co., 68 la. 502 ; Brighthope R. Co. v. Rogers, 76 Va. 
 443 ; Loring v. Worcester, etc. R. Co., 131 Mass. 469). In some States, 
 moreover, if the plaintiff identifies a particular engine as being the 
 alleged cause of the fire, evidence as to other engines is in such a case 
 inadmissible. Henderson v. Philadelphia, etc. R. Co., 144 Pa. 461 ; 
 Gibbons v. Wisconsin, etc. R. Co., 58 Wis. 335 ; Inman v. Elbertbn R. 
 Co., 90 Ga. 663 ; but see Thatcher v. Me. Cent. R. Co., 85 Me. 502, 
 and cases supra.] 
 
 1 [Faucett v. Nicholls, 64 N. Y. 377 ; State v. Thompson, 97 N. C. 
 496 ; see Comm. v. Gauvin, 143 Mass. 134 ; Landell v. Hotchkiss, 1 T. 
 & C. 580 ; Mead v. Husted, 49 Ct. 336.] 
 
 3 [Baird v. Daly, 68 N. Y. 547 ; see Wilson v. Granby, 47 Ct. 59 ; 
 Beatrice Gas Co. v. Thomas, 41 Neb. 662 ; Weldon v. Harlem R. Co., 
 5 Bos 576.] 
 
 3 [Baxter v. Doe, 142 Mass. 558 ; Shea v. Glendale Co., 162 Mass. 
 463. But to prove the intoxication of A, it is not competent to prove 
 that B, who had been with him and had drunk the same kinds and 
 amount of liquor, was intoxicated. Comm. v. Cleary, 135 Pa. 64.]
 
 A DIGEST OF [Part I. 
 
 Article n.* 
 
 ACTS SHOWING INTENTION, GOOD FAITH, ETC. 
 
 When there is a question whether a person said or did 
 something, the fact that he said or did something of the 
 same sort on a different occasion may be proved, if it 
 shows the existence on the occasion in question of any 
 intention, knowledge, good or bad faith, malice, or other 
 state of mind, or of any state of body or bodily feeling, 
 the existence of which is in issue, or is or is deemed to be 
 relevant to the issue ; ' but such acts or words may not 
 be proved merely in order to show that the person so 
 acting or speaking was likely on the occasion in question 
 to act in a similar manner. 2 
 
 * See Note VI. [Appendix]. 
 
 1 [This rule is fully considered and its proper limitations stated in 
 Mayer v. People, 80 N. Y. 364 ; Cotnm. v. Jackson, 132 Mass. 16 ; State 
 v. Kelley, 65 Vt. 531. See also Gr. Ev. i. §53 ; People v. Dimick, 107 
 N. Y. 13; TV. Y. Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591 ; 
 State v. Jamison, 74 la. 613; Butler v. Watkins, 13 Wall. 456; Tarbox 
 v. State, 38 O. St. 581 ; State v. Wentworth, 37 N. H. 196 ; p. 35, ante, 
 note 1.] 
 
 2 [At this point Mr. Stephens adds the following rule derived from 
 an English statute (34 and 35 Vict. c» 112, s. 19) : " Where proceedings 
 are laken against any person for having received goods, knowing 
 them to be stolen, or for having in his possession stolen property, the 
 fact that there was found in the possession of such person other 
 property stolen within the preceding period of twelve months, is 
 deemed to be relevant to the question whether he knew the property 
 to be stolen which forms the subject of the proceedings taken against 
 him. If, in the case of such proceedings as aforesaid, evidence has 
 been given that the stolen property has been found in the possession of 
 the person proceeded against, the fact that such person has within five 
 years immediately preceding been convicted of any offence involving 
 fraud or dishonesty, is deemed to be relevant for the purpose of 
 proving that the person accused knew the property which was proved 
 to be in his possession to have been stolen, and may be proved at any
 
 Chap, ill.] THE LAW OF EVIDENCE. 43 
 
 Illustrations. 
 
 (a) A is charged with receiving two pieces of silk from B, knowing 
 them to have been stolen by him from C. 
 
 The facts that A received from B many other articles stolen by him 
 from C in the course of several months, and that A pledged all of 
 them, are deemed to be relevant to the fact that A knew that the two 
 pieces of silk were stolen by B from C. 1 
 
 (b) A is charged with uttering, on the 12th December, 1854, a coun- 
 terfeit crown piece, knowing it to be counterfeit. 
 
 The facts that A uttered another counterfeit crown piece on the nth 
 December, 1854, and a counterfeit shilling on the 4th January, 1855, 
 are deemed*to be relevant to show A's knowledge that the crown piece 
 uttered on the 12th was counterfeit. 2 
 
 stage of the proceedings; provided that not less than seven days' 
 notice in writing has been given to the person accused that proof is 
 intended to be given of such previous conviction. The fact that the 
 prisoner was within twelve months in possession of other stolen 
 property than that to which the charge applies is not deemed to be 
 relevant, unless such property was found in his possession at or soon 
 after the time when the proceedings against him were taken, (R. v. 
 Carter, 12 Q. B. D. 522; and see R. v.Drage, 14 Cox, 85.)" This 
 enactment, he says, overrules, to a strictly limited extent, R. v. Oddy, 
 2 Den. C. C. 264, and practically supersedes R. v. Dunn, 1 Moo. C. 
 C. 150, and R. v. Davis, 6 C. & P. 177. 
 
 In this country such cases are governed by the general common 
 law rule. See Illustrations and cases cited.] 
 
 1 Dunn's Case, 1 Moo. C. C. 146. [S. P. Copperman v. People, 56 
 N. Y. 591 ; Coleman v. People, 58 N. Y. 555 ; State v. Ward, 49 Ct. 429; 
 Comm. v.Johnson, 133 Pa. 293 ; Shriedley v. State, 23 O. St. 130 ; see 
 People v. McClure, 148 N. Y. 95. But the fact that A received prop- 
 erty on other occasions from other persons than B, knowing it to have 
 been stolen, is deemed not to be relevant. Coleman v. People, 55 
 N. Y. 81.] 
 
 * R. v. Forster, Dears. 456 ; and see R. v. Weeks, L. & C. 18. [See 
 Comm. v. Bigelow, 8 Met. 235; Comm. v. Price, 10 Gray, 472; Stalker 
 v. State, 9 Ct. 341 ; People v. Dibble, 3 Abb. Dec. 518. 
 
 So upon a trial for forgery or uttering forged instruments, evidence 
 of other recent forgeries or utterings by the defendant is admissible 
 to show guilty knowledge or intent. People v. Everhardt, 104 N. Y. 
 591 ; Comm. v. Russell, 156 Mass. 196 ; Anson v. People, 148 111. 494 ; 
 People v. Baird, 105 Cal. 126; People v. Kemp, 76 Mich. 410.]
 
 44 A DIGEST OF [Part I. 
 
 (c) A is charged with attempting to obtain money by false pretences, 
 by trying to pledge to B a worthless ring as a diamond ring. 
 
 The facts that, two days before, A tried, on two separate occasions, 
 to obtain money from C and D respectively, by a similar assertion as 
 to the same or a similar ring, and that on another occasion on the same 
 day he obtained a sum of money from E by pledging as a gold chain 
 a chain which was only gilt, are deemed to be relevant, as showing 
 his knowledge of the quality of the ring. 1 
 
 (d) A is'charged with obtaining money from B by falsely pretend- 
 ing that Z had authorized him to do so. 
 
 The fact that on a different occasion A obtained money from C by 
 a similar false pretence is deemed to be irrelevant, 2 as A's knowledge 
 that he had no authority from Z on the second occasion Tiad no con- 
 nection with his knowledge that he had no authority from Z on the 
 first occasion. 
 
 (e) A sues B for damage done by a dog of B's, which B knew to be 
 ferocious. 
 
 The facts that the dog had previously bitten X, Y, and Z, and that 
 they had made complaints to B, are deemed to be relevant. 3 
 
 (/) The question is, whether A, the acceptor of a bill of exchange, 
 knew that the name of the payee was fictitious. 
 
 The fact that A had accepted other bills drawn in the same manner 
 before they could have been transmitted to him by the payee, if the 
 
 1 R. v. Francis, L. R. 2 C. C. R. 128. The case of R. v. Cooper, 
 I Q. B. D. (C. C. R.) 19, is similar to R. v. Francis, and perhaps 
 stronger. [S. P. Mayer v. People, 80 N. Y. 364; Comm. v. Coe, 115 
 Mass. 481 ; State v. Bayne, 88 Mo. 604; see People v. Henssler, 48 
 Mich. 49. Evidence of this kind is also relevant in civil actions to 
 prove guilty knowledge or fraudulent purpose. Nail v. Naylor, 18 
 N. Y. 588 ; Beuerlien v. O'Leary, 149 N. Y. 33 ; Lincoln v. Claflin, 7 
 Wall. 132; Hovey v. Grant, 52 N. H. 569; Lockwood v. Doane, 107 
 111. 235.] 
 
 2 R. v. Holt, Bell, C. C. 280 ; and see R. v. Francis, ub. sup. p. 130. 
 [Comm. v .Jackson, 132 Mass. 16 ; Strong v. State, 86 Ind. 208 ; Jack- 
 son v. People, 126 111. 139; cf. Hugatiir v. Cotter, 92 Wis. 1 ; but see 
 People v. Shulman, 80 N. Y. 373.] 
 
 3 See cases collected in Roscoe's Nisi Prius, 739. [Evans v. 
 McDermott, 49 N. J. L. 163; Graham v. Payne, 122 Ind. 403; Rey- 
 nolds v. Hussey, 64 N. H. 64 ; see Godeau v. Blood, 52 Vt. 251 ; Muller 
 v. McKesson, 73 N. Y. 195. So evidence of the general repute of the
 
 Chap. III.] THE LAW OF EVIDENCE. 45 
 
 payee had been a real person, is deemed to be relevant, as showing 
 that A knew that the payee was a fictitious person. 1 
 
 (g) A sues B for a malicious libel. Defamatory statements made 
 by B regarding A for ten years before those in respect of which the 
 action is brought are deemed to be relevant to show malice. 2 
 
 (ga) [The question is, whether A committed adultery with B. 
 
 The fact that on other occasions, not too remote, these persons had 
 committed adultery is deemed to be relevant, to show the existence of 
 an adulterous disposition ; but not to show the commission of the 
 particular act in question.] 3 
 
 dog in the neighborhood, as being vicious and dangerous, is compe- 
 tent, as tending to raise an inference that the owner knew of such 
 propensity. Cameron v. Bryan, 89 la. 214; Fake v. Addicks, 45 
 Minn. 37. J 
 
 1 Gibson v. Hunter, 2 H. Bl. 288. 
 
 2 Barrett v. Long, 3 H. L. C. 395, 414. [Evening Journal Ass'n v. 
 McDermott, 44 N. J. L. 430 ; Comm. v. Place, 153 Pa. 314 ; Beneway 
 v. Thorp, 7J Mich. 181 ; Fredricksoti v. Johnson, 60 Minn. 337; Aus- 
 tin v. Remington, 46 Ct. 116; Freeman v. Sanderson, 123 Ind. 264; 
 Cruikshank v. Gordon, 118 N. Y. 178. It is generally held that the 
 charges proved to show malice must be substantially similar to the 
 one in question, and that they may have been made either before it 
 was published or afterwards (Id.; Comm. v. Damon, 136 Mass. 441, 
 448; Conant v. Leslie, 85 Me. 257; Brown v. Barnes, 39 Mich. 211; 
 Cavanaugh v. Austin, 42 Vt. 576; Howard v. Sexton, 4 N. Y. 157). 
 In some States they may be proved though made after suit brought 
 {Chamberlain \. Vance, 51 Cal. 75; Larrabee v. Minnesota Tribune 
 Co., 36 Minn. 141; Post Pub. Co. v. Hallam, 59 F. R. 530; Knapp v. 
 Smith, 55 Vt. 311), but not in others {Daly v. Byrne, jj N. Y. 182; 
 but see Turton v. N. Y. Recorder Co., 144 N. Y. 144, 150). By some 
 decisions, also, enhanced damages are recoverable in the same action 
 for the repeated charges {Leonard v. Pope, 27 Mich. 145; cf. Hintz 
 v. Graupner, 138 111. 158 ; Alpin v. Morton, 21 O. St. 536) ; but in most 
 States damages are only obtainable for the particular charge sued 
 upon, while the evidence of repetitions is deemed competent to show 
 the degree of malice in such charge. IFardv. Dick, 47 Ct. 300; Clark 
 v. Brown, 116 Mass. 504 ; Enos v. Enos, 135 N. Y. 609.] 
 
 3 [Brooks v. Brooks, 145 Mass. 574 ; Thayer v. Thayer, 101 id. 111 ; 
 State v. Williams, 76 Me. 480 ; Comm. v. Bell, 166 Pa. 405 ; People v. 
 Patterson, 102 Cal. 239 ; People v. Skutt, 96 Mich. 449 ; State v. Potter, 
 52 Vt. 33 ; State v. Markins, 95 Ind. 464 ; State v. Briggs, 68 la. 416 ; 
 State v. Young, 99 Mo. 284.]
 
 [6 A DIGEST OF [Part I. 
 
 (h) A is sued by B for fraudulently representing to B that C was 
 solvent, whereby B, being induced to trust C, who was insolvent, 
 suffered loss. 
 
 The fact that, at the time when A represented C to be solvent, C 
 was to A's knowledge supposed to be solvent by his neighbors and by 
 persons dealing with him, is deemed to be relevant, as showing that A 
 made the representation in good faith. 1 
 
 (/) A is sued by B for the price of work done by B, by the order of 
 C, a contractor, upon a house, of which A is owner. 
 
 A's defence is that B's contract was with C. 
 
 The fact that A paid C for the work in question is deemed to be 
 relevant, as proving that A did, in good faith, make over to C the 
 management of the work in question, so that C was in a position to 
 contract with B on C's own account, and not as agent for A.' 2 
 
 (/) A is accused of stealing property which he had found, and the 
 question is, whether he meant to steal it when he took possession of it. 
 
 The fact that public notice of the loss of the property had been 
 given in the place where A was, and in such a manner that A knew 
 or probably might have known of it, is deemed to be relevant, as 
 showing that A did not, when he took possession' of it, in good faith 
 believe that the real owner of the property could not be found. 3 
 
 (h) The question is, whether A is entitled to damages from B, the 
 seducer of A's wife. 
 
 The fact that A's wife wrote affectionate letters to A before 
 the adultery was committed, is deemed to be relevant, as show- 
 
 1 Sheen v. Btempslead, 2 H. & C. 193. [See Slingerland v. Bennett, 
 6 T. & C. 446 ; Larkin v. Hapgood, 56 Vt. 597 ; Gordo?i v. Ritenour, 
 87 Mo. 54 ; Killam v. Peirce, 153 Mass. 502 ; West v. St. Paul Nat. 
 Bk., 54 Minn. 466 ; Whitcher v. Shattuck, 3 Allen, 319 ; cf. Bliss v. 
 Johnson, 162 Mass. 323.] 
 
 2 Gerish v. Charlier, 1 C. B. 13. [See Moody v. Tenney, 3 Allen, 327 ; 
 Regan v. Dickinson, 105 Mass. 112.] 
 
 3 This Illustration is adapted from Preston s Case, 2 Den. C. C. 353, 
 but the misdirection given in that case is set right. As to the rele- 
 vancy of the fact, see in particular Lord Campbell's remark on p. 359. 
 [Cf. State v. Flint, 60 Yt. 304 ; Woods v. Montevallo, etc. Co., 84 Ala. 
 560 ; Stallings v. State, 33 Ala. 425. So in order to prove that a 
 master knew of his servant's incompetency, it may be shown that the 
 servant had a general reputation for incompetency in the community. 
 Driscollv. Fall River, 163 Mass. 105 ; Western Stone Co. v. Whalen, 
 151 III.472; Grubex.Mo. Pac.R. Co., 98 Mo. 330; see p. 160, note, post.]
 
 Chap. III.] THE LAW OF EVIDENCE. 
 
 47 
 
 ing the terms on which they lived and the damage which A 
 sustained. 1 
 
 (/) The question is, whether A's death was caused by poison. 
 
 Statements made by A before his illness as to his state of health, 
 and during his illness as to his symptoms, are deemed to be relevant 
 facts. 2 
 
 1 Trelawney v. Coleman, I B. & A. 90. [Gr. Ev. i. § 102 ; Palmer v. 
 Crook, 7 Gray, 418 ; Perry v. Lovejoy, 49 Mich. 529 ; Harter v. Crill, 
 33 Barb. 283 ; Long v. Booe, 106 Ala. 570 ; Fratini v. Caslini, 66 Vt. 
 273 ; Holtz v. Dick, 42 0. St. 23 ; Horner v. Yance, 93 Wis. 352 ; see 
 Edgell v. Francis, 66 Mich. 303. So, in general, declarations of a 
 person, whether oral or written, expressing present mental feeling, 
 stale of mind, or intention, are admissible in evidence, when his mental 
 state, intention, etc., is a distinct material fact to be proved. Gr. Ev. i. 
 § 102 ; Mutual Life Lns. Co. v. Hillmon, 145 U. S. 285 ; Comm. v. Tre- 
 fethen, 157 Mass. 180 ; Deer Isle v. Winterport, 87 Me. 37 ; Smith v. 
 Nat. Benefit Society, 123 N. Y. 85 ; but see State v. Fitzgerald, 130 
 Mo. 407.] 
 
 2 R. v. Palmer. See my " Gen. View of Crim. Law," pp. 363, 377, (evi- 
 dence of Dr. Savage and Mr. Stephens). [Gr. Ev. i. §102. It is a 
 general rule that expressions of present bodily pain or suffering or 
 symptoms of illness are admissible as part of the res gestcp, and, 
 whether made to physicians or to other persons, may be proved by 
 those who heard them {Northern Pac. R. Co. v. Urlin, 158 U. S. 271 ; 
 and see cases infra) ; but statements as to past sufferings, or as to the 
 past cause of the injury or of the suffering, are not admissible (Insur- 
 ance Co. v. Mosley, 8 Wall. 397 ; State v. Fournier, 68 Vt. 262 ; Globe 
 Ins. Co. v. Gerisch, 163 111. 625 ; Keller v. Gilman, 93 Wis. 9 ; Girard 
 v. Kalamazoo, 92 Mich. 610 ; Carthage Co. v. Andrews, 102 Ind. 138; 
 Atchison, etc. R. Co. v. Johns, 36 Kan. 769; Co nun. v. Jardine, 143 
 Mass. 567 ; Ashland v. Marlborough, 99 id. 47 ; Wilson v. Granby, 47 
 Ct. 59 ; Lichtenwallner v. Laubach, 105 Pa. 366 ; see p. 8, note 3, ante). 
 Statements of present bodily feelings have in some States been held 
 admissible, though made after suit brought, especially if made to an 
 attending physician with a view to medical advice or treatment (Cleve- 
 land, etc. R. Co. v. Newell, 104 Ind. 264 ; Hatch v. Fuller, 131 Mass. 
 574) ; but not, if they were made to a physician for the sole purpose 
 of enabling him to testify as a witness on the trial (Abbott v. Heath, 84 
 Wis. 314 ; Jones v. Portland, 88 Mich. 598 ; but see Cleveland, etc. R. 
 Co. v. Newell, supra ; Matteson v. N. Y. Cent. R. Co., 35 N. Y. 487). 
 Some cases even assert (mainly, however, as dicta) that statements 
 made to a physician for medical treatment may be proved, though
 
 48 A DIGEST OF [Part I. 
 
 (m) The question is, what was the state of A's health at the time 
 when an insurance on her life was effected by B. 
 
 Statements made by A as to the state of her health at or near the 
 time in question are deemed to be relevant facts. 1 
 
 (;/) The question is, whether A, the captain of a ship, knew that a 
 port was blockaded. 
 
 The fact that the blockade was notified in the Gazette is deemed to 
 be relevant. 2 
 
 (<?) [The question is, whether a testator, in making his will, was con- 
 trolled by undue influence. 
 
 Statements made by him on prior occasions as to his testamentary 
 intentions in the disposition of his property are deemed to be relevant, 
 as showing his cherished purposes and state of mind when the will 
 was made ; if such statements are consistent with the provisions of 
 the will, they tend to rebut charges of undue influence, otherwise to 
 confirm them. But statements of the testator to show the fact of 
 undue influence ate deemed not to be relevant.] 3 
 
 they relate to past (as well as present) feelings and symptoms (Roosa 
 v. Boston Loan Co., 132 Mass. 439 ; Cleveland, etc. R. Co. v. Newell, 
 104 Ind. 264) ; but it is held otherwise in New York {Davidson v. Cor- 
 nell, 132 N. Y. 228). 
 
 In New York a more limited rule prevails, and while evidence may 
 be given of an injured person's groans, screams, and exclamations 
 showing present pain, yet his mere declarations, made some time after 
 the injury, that he is then suffering pain, are not competent, unless 
 they are made to a physician for the purpose of treatment. Roche v. 
 Brooklyn, etc. R. Co., 105 N. Y. 294 ; Davidson v. Cornell, 132 N. Y. 
 228 ; S. P. Atlanta R. Co. v. Walker, 93 Ga. 462 ; cf. Co»i»i. v. Leach, 
 156 Mass. 99; contra, Board of Co/tunrs. v. Leggett, 115 Ind. 544.] 
 
 1 Aveson v. Lord Kinnaird, 6 Ea. 188. [See Swift v. Life Lns. Co., 
 63 N. Y. 186 ; Edington v. Life Bis. Co., 67 N. Y. 185 ; Dilleberw. Life 
 Lns. Co., 69 N. Y. 256. By these New York cases the statements of 
 the assured, if made at a time prior to, and not remote from the appli- 
 cation, are deemed relevant to show his knowledge of his physical 
 condition. See also Kelsey v. Universal, etc. Lns. Co., 35 Ct. 225 ; 
 State v. Cedicke, 43 N. J. L. 86 ; and cases cited under last Illustra- 
 tion.] 
 
 2 Harrat v. Wise, 9 B. & C. 712. 
 
 3 [AW v. Potter, 40 Pa. 483; Marx v. McGlynn, 88 N. Y. 357; 
 Haines v. Hayden, 95 Mich. 332; Goodbar v. Lidikey, 136 Ind. 1; 
 Jn re Calkins, 112 Cal. 296 ; Hill v. Bahrns, 158 111. 314 ; Gardner v.
 
 Chap. III.] THE LAW OF EVIDENCE. 49 
 
 Article 12.* 
 facts showing system. 
 
 When there is a question whether an act was accidental 
 or intentional, the fact that such act formed part of a 
 series of similar occurrences, in each of which the person 
 doing the act was concerned, is deemed to be relevant. 1 
 
 * See Note VI. [Appendix]. 
 Frieze, 16 R. I. 640; Thompson v. Ish, 99 Mo. 160; Moore v. McDon- 
 ald, 68 Md. 321 ; Potter v. Baldwin, 133 Mass. 427 ; Dye v. Young, 
 55 la. 433 ; see Jones v. Mc Lei Ian, 76 Me. 49 ; Hersterv. Herster, 122 
 Pa. 239. So subsequent statements or acts maybe shown which indi- 
 cate the state of mind when the will was made (Shailer v. Bumslead, 
 99 Mass. 112 ; Waterman v. Whitney, 11 N. Y. 157). And in general, 
 evidence of the testator's acts or declarations may be given, which 
 show his mental peculiarities, settled convictions, deeply rooted feel- 
 ings or purposes, or any enduring state of mind, as they existed at the 
 making of the will {Shailer v. Bumstead, supra). So as to making 
 a deed {Howe v. Howe, 99 Mass. 88), or a lease {Sherman v. Wilder, 
 106 Mass. 537), or a gift {Lane v. Moore, 151 Mass. 87 ; Sherman v. 
 Sherman, 75 la. 136; Meriden Bk.v. Wellington, 64 Ct. 553 ; Ridden 
 v. Thrall, 125 N. Y. 572 ; see Converse v. Wales, 4 Allen, 512). 
 
 Similar evidence may be receivable in criminal cases to show the 
 state of the prisoner's mind when the crime was committed. Comm. 
 v. Pomeroy, 117 Mass. 144 ; Comm. v. Burlington, 136 id. 435 ; People 
 v. Sessions, 58 Mich. 594, 601.] 
 
 1 [State v. Lapage, 57 N. H. 245, 294 ; Comm. v. Robinson, 146 Mass. 
 571 ; Hawes v. State, 88 Ala. 37, 67 ; State v.Kelley, 65 Vt. 531 ; 
 People v. Murphy, 135 N. Y. 450 ; State v. Slice, 88 la. 27 ; Dawson 
 v. State, 32 Tex. App. 535 ; People v. Shulman, 80 N. Y. 373; Comm. v. 
 Bradford, 126 Mass. 42 ; Goersen v. Comm., 99 Pa. 388, 106 id. 477 ; 
 Hope v. People, 83 N. Y. 418 ; see Comm. v. Choate, 105 Mass. 451 ; 
 Swan v. Comm., 104 Pa. 218 ; Dayton v. Monroe, 47 Mich. 193 ; 
 Hayncs v. Christian, 30 Mo. App. 198 ; and pp. 34, 35, ante, and 
 notes. 
 
 So a party's system or course of business may be proved to show 
 whether he has exercised due diligence on a particular occasion 
 {Holly v. Boston Gas Co.,% Gray, 123 ; Fuller v. Naugatuck R. Co., 21 
 Ct. 557 ; Wallace v. Central Vt. R. Co., 138 N. Y. 302 ; see Coates v.
 
 5° 
 
 A DIGEST OF [Part I. 
 
 Illustrations. 
 
 (a) A is accused of setting fire to his house in order to obtain money 
 for which it is insured. 
 
 The facts that A had previously lived in two other houses succes- 
 sively, each of which he insured, in each of which a fire occurred, and 
 
 Burlington, etc. R. Co., 62 la. 486; Bailey v Rome, etc. R. Co., 139 
 N. Y. 302) ; and the usual practice of others in the same business 
 or employment under like circumstances may be shown, to indica'te 
 whether ordinary care has been used in a special instance (Maynard 
 v. Buck, 100 Mass. 40 ; Cook v. Champlain, etc. Co., 1 Den. 91 ; 
 Jarvis v. Brooklyn R. Co., 16 N. Y. S. 96, 133 N. Y. 623; Case v. 
 Perew, 46 Hun, 57, 122 N. Y. 665 ; Holland v. Tenn. Coal Co., 91 Ala. 
 444 ; Myers v. Hudson Iron Co., 150 Mass. 125, 138 ; Daley v. Amer. 
 Printing Co., 152 id. 581 ; Reese v. Hershey, 163 Pa. 253; Doyle v. 
 St. Paid, etc. R. Co., 42 Minn. 79 ; Whitsett v. Chicago, etc. R. Co., 
 67 la. 150; Railway Co. v. Manchester Mills, 88 Tenn. 653; cf. 
 Veginan v. Morse, 160 Mass. 143 ; but see Grand Trunk R. Co. 
 v. Richardson, 91 U. S. 454 ; Chicago, etc. R. Co. v. Clark, 108 111. 
 113; Bassett v. Shares, 63 Ct. 39 ; Lake Erie, etc. R. Co. v. Mugg, 
 132 Ind. 168 ; Southern Kansas R. Co. v. Robbins, 43 Kan. 145). 
 
 With the cases under this Article may be compared those in which a 
 system of conduct or action, as shown by a series of similar acts, is 
 proved, in order to establish the habit of a person or animal, the 
 character of a house, etc. (See Baulec v.N. Y. etc. R. Co., 59 N. Y. 
 356; Lanpherv. Clark, 149 N. Y. 472 ; Comm. v. Meany, 151 Mass. 
 55; Beard v. State, 7 1 Md.275; Cameron v. Bryan, 89 la. 214). Thus 
 the vicious habit of a horse for shying, balking, etc., may be shown 
 by proving cases of like misbehavior, both before and after the act 
 in question (Jfaggi v. Cutis, 123 Mass. 535 ; Kennon v. Gilmer, 131 U. 
 S. 22 ; Chamberlain v. Enfield, 43 X. H. 356 ; cf. Whitney v. Leomin- 
 ster, 136 Mass. 25). And evidence of a person's repeated acts of 
 drunkenness may be admitted, to prove habitual drunkenness (Comm. 
 v. Ryan, 134 Mass. 223 ; Comm. v. McNamee, 1 12 Mass. 285 ; Wright 
 v. Crawfordsville, 142 Ind. 636 ; Ml Gill x. McGill, 19 Fla. 341). So 
 sales of liquor to different persons at different times may be proved to 
 show that the seller is in the business of liquor selling (State v. Welch, 
 64 X. H. 525). But a habit of lying cannot be proved by evidence of 
 lies told on other occasions (Comm. v. Kennon, 130 Mass. 39). In 
 New Hampshire, evidence of prior acts of negligence of the same 
 kind by a person is received, as tending to show his negligence on a 
 particular occasion (Parkinson v. Nashua, etc. R. Co., 61 N. H. 416) ;
 
 Chap. III.] THE LAW OF EVIDENCE. 51 
 
 that after each of those fires A received payment from a different in- 
 surance office, are deemed to be relevant, as tending to show that the 
 fires were not accidental. 1 
 
 {b) A is employed to pay the wages of B's laborers, and it is A's 
 duty to make entries in a book showing the amounts paid by him. 
 He makes an entry showing that on a particular occasion he paid 
 more than he really did pay. 
 
 The question is, whether this false entry was accidental or inten- 
 tional. 
 
 The fact that for a period of two years A made other similar false 
 
 but in most States this doctrine is denied (see Art. 10, Illustration 
 {g) ; Robinson v. F. &* IV. R. Co., 7 Gray, 92 ; Brennan v. Friend- 
 ship, 67 Wis. 223). So in that State, on the question at what speed 
 an engineer drove a railway train at a certain time and place, evi- 
 dence of the speed at which he drove the same train at the same 
 place on other days may be admitted {State v. B. &*= M. R. Co., 58 N. 
 H. 410 ; S. P. Hall v. Brown, id. 93 ; cf. Shaber v. St. Raid, etc. R. Co., 
 28 Minn. 103). But it is elsewhere held that to prove care on a par- 
 ticular occasion, the party's habit of being careful cannot be shown 
 {McDonald v. Savoy, no Mass. 49 ; Chase v. Maine Cent. R. Co., yj 
 Me. 62 ; Morris v. East Haven, 41 Ct. 252 ; Wooster v. Broadway, 
 etc. R'. Co., 72 Hun, 197 ; but see Dorman v. Katie, 5 Allen, 38 ; Toledo, 
 etc. R. Co. v. Bailey, 145 111. 159) ; nor can the fact of gambling on a 
 certain occasion, when intoxicated, be proved by showing a habit so to 
 do ( Thompson v. Bowie, 4 Wall. 463 ; cf. McMahon v. Harrison, 6 N. 
 Y. 443 ; Triplctt v. Goff's Admr., 83 Va. 784) ; nor drunkenness on a 
 particular occasion by showing a habit of intemperance {Cotnm. v. 
 Werling, 164 Pa. 559) ; nor the taking of usury on one occasion 
 by showing prior acts of taking usury. Ross v. Ackerman, 46 N. Y. 
 210.] 
 
 1 R. v. Gray, 4 F. & F. 1102. I acted on this case in R. v Stanley, 
 Liverpool Summer Assizes, 1882, but I greatly doubt its authority. 
 The objection to the admission of such evidence is that it may 
 practically involve the trial of several distinct charges at once, as it 
 would be hard to exclude evidence to show that the other fires were 
 accidental. [Cf., as tending to support R. v. Gray, Hoxie v. Home 
 Ins. Co., 32 Ct. 21 ; Whitmore v. Supreme Lodge Knights, 100 Mo. 36 ; 
 Conwi. v. McCarthy, 119 Mass. 354 ; People v. Dimick, 107 N. Y. 13. 
 But evidence of other fires in defendant's buildings has been rejected, 
 when they occurred from five to eleven years before the fire in 
 question. State v. Raymond, 53 N. J. L. 260.]
 
 52 A DIGEST OF [Part I. 
 
 entries in the same book, the false entry being in each case in favor of 
 A, is deemed to be relevant. 1 
 
 (c) The question is, whether the administration of poison to A, by Z, 
 his wife, in September, 1848, was accidental or intentional. 
 
 The facts that B, C, and D (A's three sons), had the same poison 
 administered to them in December, 1848, March, 1849, and April, 1849, 
 and that the meals of all four were prepared by Z, are deemed to be 
 relevant, though Z was indicted separately for murdering A, B, and 
 C, and attempting to murder D. 2 
 
 (ca) [The question is, whether A and his wife intentionally caused 
 the death of an infant child, which they had received from its mother 
 for adoption upon the payment of a small sum of money, the body of 
 the child having been found buried in their grounds. 
 
 The facts that the defendants had received several other infants 
 from their mothers for adoption, on like terms, and that the bodies of 
 a number of infants had been found buried in a similar manner in the 
 gardens of several houses which they had occupied, are deemed to 
 be relevant.] s 
 
 (c6) [The question is, whether the firing of a pistol by A at B, 
 inflicting a serious wound, was accidental or willful. 
 
 Evidence that A had fired his pistol at two other persons the day 
 before was deemed to be relevant to show that the act was willful] ' 
 
 (d) A promises to lend money to B on the security of a policy of 
 insurance which B agrees to effect in an insurance company of his 
 choosing. B pays the first premium to the company, but A refuses to 
 lend the money except upon terms which he intends B to reject, and 
 which B rejects accordingly. 
 
 1 R. v. Richardson, 2 F, & F. 343. [See Lang v. State, 97 Ala. 41 ; 
 Ossipce v. Grant, 59 N. H. 70 ; Funk v. Ely, 45 Pa. 444 ; for a case of 
 forgery, see Rankin v. Blackwell, 2 Johns. Cas. 198.] 
 
 8 R. v. Geering, 18 L. J. M. C. 215 ; cf. R. v. Garner, 3 F. & F. 681. 
 These cases were discussed in R. v. Neill (or Cream), tried at the 
 Central Criminal Court in October, 1892, when Hawkins, J., admitted 
 evidence of subsequent administrations of strychnine by the prisoner 
 to persons other than and unconnected with the woman of whose 
 murder the prisoner was then convicted. [See Zoldoske v. State, 82 
 Wis. 580 ; Goersen v. Conim., 99 Pa. 388, 106 id. 477 ; People v. Foley, 
 64 Mich. 148 ; Weyman v. People, 4 Hun, 511, 518, 62 N. Y. 623 ; R. v. 
 Flannagan, 15 Cox, 403.] 
 
 3 [ Makin v. Attorney General, [1894] A. C. 57.] 
 
 4 [State v. McDonald, 14 R. I. 270.]
 
 Chap. III.] THE LAW OF EVIDENCE. 53 
 
 The fact that A and the insurance company have been engaged in 
 similar transactions is deemed to be relevant to the question whether 
 the receipt of the money by the company was fraudulent. 1 
 
 Article 13.* 
 
 existence of course of business, when deemed to be 
 relevant. 
 
 When there is a question whether a particular act was 
 done, the existence of any course of office or business 
 according to which it naturally would have been done, is 
 a relevant fact. 2 
 
 When there is a question whether a particular person 
 held a particular public office, the fact that he acted in 
 that office is deemed to be relevant. 3 
 
 When the question is whether one person acted as agent 
 for another on a particular occasion, the fact that he so 
 acted on other occasions is deemed to be relevant. 4 
 
 Illustrations. 
 
 (a) The question is, whether a letter was sent on a given day. 
 The post-mark upon it is deemed to be a relevant fact. 5 
 
 (b) The question is, whether a particular letter was dispatched. 
 
 * See Note VII. [Appendix]. 
 
 1 Blake v. Albion Life Assurance Society, 4 C. P. D. 94. 
 
 s [Gr. Ev. i. §§38, 40 ; People v. Oyer and Terminer Court, 83 N. Y. 
 436 ; Twogood v. Mayor, 102 N. Y. 216; Beakes v. Da Cutiha, 126 N. Y. 
 293 ; Dun lop v. United States, 165 U. S. 486 ; State v. Taylor, 126 Mo. 
 531 ; Knickerbocker Ins. Co. v. Pendleton, 115 U. S. 339; Comm. v. 
 Kimball, 108 Mass. 473 ; Hall v. Brown, 58 N. H. 93.] 
 
 3 1 Ph. Ev. 449; R. N. P. 46; T. E. s. 139; [see Art. 90, post, last 
 paragraph.] 
 
 4 [Olcott v. Tioga R. Co., 27 N. Y. 546 ; Seattle v. Delaware, etc. R. 
 Co., 90 N. Y. 643 ; Gallinger v. Lake Shore Co., 67 Wis. 529 ; Kent 
 v. Tyson, 20 N. H. 121 ; Thurber v. Anderson, 88 111. 167; Kent's 
 Comm. ii. 615. But it is said that an agency to commit crimes cannot 
 be proved by evidence of prior like crimes committed by one as agent. 
 People v. McLaughlin, 150 N. Y. 365, 391.] 
 
 6 R. v. Canning, 19 S. T. 370. [United States v. Williams, 3 F. R.
 
 54 A DIGEST OF [Part I. 
 
 The facts that all letters put in a certain place were, in the common 
 course of business, carried to the post, and that that particular letter 
 was put in that place, are deemed to be relevant. 1 
 
 (c) The question is, whether a particular letter reached A. 
 
 The facts that it was posted in due course, properly addressed, and 
 was not returned through the Dead Letter Office, are deemed to be 
 relevant. 2 
 
 (d) The facts stated in Illustration (d) to the last Article are deemed 
 to be relevant to the question whether A was agent to the company. 3 
 
 484; United States v. Noelke, 17 Blatch. 554. But there is no pre- 
 sumption that the date of the post-mark was the day of depositing 
 the letter. Shelburne Falls Bk. v. Townsley, 102 Mass. 177 ; see 
 Price v. McGoldrick, 2 Abb. N. C. 69.] 
 
 1 Hctherington v. Kemp, 4 Camp. 193 ; and see Skilbeck v. Garbett, 
 7 Q. B. 846, and Trotter v. Maclean, 13 Ch. Div. 574. [See Howard 
 v. Daly, 61 N. Y. 362; Swampscott Co. v. Rice, 159 Mass. 404; Dix 
 v. Atkins, 128 Mass. 43 ; Whitney Works v. Moore, 61 Vt. 230; Hall 
 v. Brown, 58 N. H. 93, 97; cf. Hastings v. Brooklyn Ins. Co., 138 
 N. Y. 473-] 
 
 2 Warren v. Warren, 1 C. M. & R. 250; Woodcock v. Houlds- 
 worth, 16 M. & W. 124. Many cases on this subject are collected in 
 Roscoe's Nisi Priits, pp. 374-5. [Hedden v. Roberts, 134 Mass. 38 ; 
 Rosenthal v. Walker, m U. S. 185; Folsom v. Cook, 115 Pa. 539; 
 Sabre v. Smith, 62 N. H. 663 ; McFarland v. Accident Ass' n, 124 Mo. 
 204 ; cf. Ellison v. Lindsley, 33 N. J. Eq. 258, note. This is only 
 pri)na facie evidence that the letter was received, not a conclusive 
 presumption of law {Huntley v. Whitticr, 105 Mass. 391 ; Schutz v. 
 Jordan, 141 U. S. 213 ; Harrington v. Hickman, 148 Pa. 405 ; Austin 
 v. Holland, 69 N. Y. 571 ; cf. Marston v. Bigelow, 150 Mass. 45). 
 The same rule applies to telegrams. U. S. v. Babcock, 3 Dill. 571 ; 
 Oregon Steamship Cc. v. Otis, 100 N. Y. 446; Eppingerv. Scott, 112 
 Cal. 369.] 
 
 3 Blake v. Albion Life Assurance Society, 4 C. P. D. 94.
 
 Chap. IV.] THE LAW OF EVIDENCE. 55 
 
 CHAPTER IV. 
 
 r IEARSA Y IRRELEVANT EXCEPT IN CERTAIN CASES. 
 
 Article 14.* 
 
 hearsay and the contents of documents irrelevant. 
 
 {a) The fact that a statement was made by a person not 
 called as a witness, and 
 
 (b) the fact that a statement is contained or recorded 
 in any book, document, or record whatever, proof of 
 which is not admissible on other grounds, 
 
 are respectively deemed to be irrelevant to the truth of 
 the matter stated, except (as regards (a) ) in the cases 
 contained in the first section of this chapter ; ' 
 
 and except (as regards (b) ) in the cases. contained in 
 the second section of this chapter. 
 
 Illustrations, 
 (a) A declaration by a deceased attesting witness to a deed that he 
 had forged it, is deemed to be irrelevant to the question of its 
 validity. 2 
 
 * See Note VIII. [Appendix]. 
 
 1 It is important to observe the distinction between the principles 
 which regulate the admissibility of the statements contained in a 
 document and those which regulate the manner in which they must 
 be proved. On this subject see the whole of Part II. [As to the 
 general rule that hearsay evidence is excluded, see Stephens v. 
 Vroman, 16 N. Y. 381 ; Felska v. N. Y. Central R. Co., 152 N. Y. 339 ; 
 Farrell v. Weitz, 160 Mass. 288 ; Wallace v. Story, 139 Mass. 115 ; 
 Hollister v. Cordero, 76 Cal. 649.J 
 
 2 Stobart v.Dryden, 1 M. & W. 615. [Some American decisions 
 deny the doctrine of this case (Boylan v. Meeker, 28 N. J. L. 274, 295 ;
 
 56 A DIGEST OF [Part I, 
 
 (b) The question is, whether A was born at a certain time and place. 
 The fact that a public body for a public purpose stated that he was 
 born at that time and place is deemed to be irrelevant, the circum- 
 stances not being such as to bring the case within the provisions of 
 Article 34. 1 
 
 (c) [The question is, whether A, a person on trial for larceny, was 
 absent from the State at a particular date. 
 
 The police sergeant of a city in the State may not testify that a 
 police officer reported to him on that date that he had seen A in the 
 street that night.] ' 2 
 
 (d) [A sues a railroad company to recover damages for personal 
 injuries caused by the defendant's negligence. 
 
 A written statement made by a physician while he was treating A 
 
 for these injuries, in which he set forth the nature of the injuries and 
 
 their effect upon A's bodily and mental condition, is deemed to be 
 
 hearsay evidence and therefore inadmissible.] 3 
 
 /- (e) [A sues B to recover for services rendered as attorney and 
 
 / counselor at law in arguing a case for B before an appellate court. 
 
 The report of said case in the published reports of said court is. 
 deemed incompetent to show that A did so appear and argue the 
 
 case.j ■ * 
 
 / (/) [A is tried for the murder of B. \ 
 
 I A statement by C that he murdered B is deemed to be irrelevant.] 5 I 
 
 Otterson v. Hofford, 36 id. 129 ; Neely v. Neely, 17 Pa. 227 ; cf. Losee 
 v. Losee, 2 Hill, 609 ; In re Hesdra, 1 19 N. Y. 615) ; but others follow it 
 (Sewall v. Bobbins, 139 Mass. 164 ; U. S. v. Boyd, 8 App. D. C. 440 ; 
 Boardnian v. IVoodmati, 47 N. H. 120 ; see also Gr. Ev. i. § 126). 
 That the declarations of other deceased witnesses may be rejected as 
 hearsay, see Gray v. Goodrich, 7 Johns. 95 ; Spats v. Lyons, 55 Barb. 
 476.] 
 
 1 Sturla v. Freccia, L. R. 5 App. Cas. 623. 
 
 - \Comnt. v. Richer, 131 Mass. 581.] 
 
 3 [ J r icksburg, etc. R. Co. v. O'Brien, 1 19 U. S. 99. But such state- 
 ment might be used by the physician as a witness to refresh his 
 recollection. Id.; cf. Russell v. Hudson River R. Co., 17 N. Y. 134; 
 Armstrong v. Ackley, 71 la. 76 ; Weaver v . Bromley , 65 Mich. 212.] 
 
 4 [Roraback v. Pennsylvania Co., 58 Ct. 292.] 
 
 6 [Stale v. Beaudet, 53 Ct. 536, 545 ; State v. Gee, 92 N. C. 756 ; 
 Munsli07ver v. State, 55 Md. 11 ; Kelly v. State, 82 Ga. 441 ; see p. 7, 
 note 5, ante.]
 
 Chap. IV.j THE LAW OF EVIDENCE. 57 
 
 SECTION I. 
 
 HEARSAY, WHEN RELEVANT. 
 
 Article 15.* 
 
 admissions defined. 
 
 An admission is a statement, oral or written, suggesting 
 any inference as to any fact in issue or relevant or 
 deemed to be relevant to any such fact, made by or on 
 behalf of any party to any proceeding.' Every admission 
 is (subject to the rules hereinafter stated) deemed to be a 
 
 * See Note IX. [Appendix]. 
 
 1 [It is an impcrtant rule that if part of a statement made by a 
 party be relevant against him as an admission, other parts of the same 
 statement which in any way qualify or explain such admission are 
 also relevant, though they are in such party's favor (Gr. Ev. i. § 201 ; 
 Grattan v. Metropolitan Ins. Co., 92 N. Y. 274 ; Gildersleeve v. Lan- 
 don, 73 N. Y. 609 ; Insurance Co. v. Newton, 22 Wall. 32 ; Vanneter 
 v. Crossman, 42 Mich. 465 ; Farley v. Rodocanachi, 100 Mass. 427 ; 
 Hunter v. Pherson, 89 Me. 71 ; as to letters, see Simmons v. Haas, 56 
 Md. 153). But other portions of the same conversation or statement, 
 which do not explain or affect the part which is unfavorable to the 
 declarant, are not admissible (Plainer v. Plainer, 78 N. Y. 90) ; nor 
 are independent declarations admissible which are made by a party 
 in his own favor (Downs v. N. Y. C. R. Co., 47 N. Y. 83 ; Corder v. 
 Corder, 124 111. 229 ; Taylor v. Brown, 65 Md. 366 ; Royal v. Chandler, 
 79 Me. 265 ; Tolbert v. Burke, 89 Mich. 132), unless they form part of 
 the res gestce (Brown v. Kenyon, 108 Ind. 283 ; see Art. 3, notes). But 
 a party giving evidence of the opposing party's admissions may also 
 disprove those parts of the same statement which are in the other 
 party's favor, but are nevertheless receivable in evidence (Mott v. 
 Consumers' Ice Co., 73 N. Y. 543). 
 
 Oral admissions may be proved by any witness who heard them 
 (Hartley v. Weideman, 175 Pa. 309) ; if he cannot remember the exact 
 words, he may testify to the substance of the admission (Gr. Ev. i. 
 § 191 ; Kittredge v. Russell, 1 14 Mass. 67). 
 
 Admissions may also be implied from acts and conduct (Gr. Ev. i. 
 §§ 195-199 ; Hayes v. Kelley, 1 16 Mass. 300 ; Greenfield Bk. v. Crafts, 
 2 Allen, 269 ; Wesner v. Stein, 97 Pa. 322 ; Lefever v. Johnson, 79 Ind.
 
 58 A DIGEST OF [Part I. 
 
 relevant fact as against the person by or on whose behalf 
 it is made, but not in his favor unless it is, or is deemed 
 to be, relevant for some other reason. 
 
 554; Foster v. Persc/1,68 N. Y. 400). Thus, if an account rendered 
 be not objected to within a reasonable time, it is deemed to be admit- 
 ted by the party charged to be prima facie correct ( Wiggins v. Burk- 
 ham, 10 Wall. 129; Samson v. Freedman, 102 N. Y. 699). Tender of 
 money to a claimant is an admission of liability to the amount of the 
 tender {Rainwater v. Hummel, 79 la. 571; Wilson v. Doran, no 
 N. Y. 101). The act of a landlord in making repairs after an injury 
 is an admission that it is his duty, rather than that of the tenant 
 {Readman v. Conway, 126 Mass. 374). So if a partner has access to 
 the books of the firm, the book-entries therein are admissible against 
 him {Fairchild v. Fairchild, 64 N. Y. 471 ; Top/iff v. Jackson, 12 Gray, 
 565). But failure to answer a letter is not generally deemed an ad- 
 mission of the truth of its contents ( Wiedemann v. Walpole, [1891] 
 2 Q- B. 534 ; Thomas v. Gage, 141 N. Y. 506 ; Razor v. Razor, 149 111. 
 621 ; Fearing x. Kimball, 4 Allen, 125 ; cf. Oregon Steamship Co. v. 
 Otis, 100 N. Y. 446 ; Hays v. A/organ, 87 Ind. 231 ; Murphy v. Gates, 
 81 Wis. 370). As to other admissions by acquiescence, see Art. 8, ante, 
 last paragraph. 
 
 Admissions made incidentally or indirectly are competent evidence 
 as well as those made directly (Gr. Ev. i. § 194 ; Harrington v. Gable, 
 81 Pa. 406; see Art. 17, Illustration^ - ). Admissions made in a plead- 
 ing, sworn to by a party, are admissible against him in another action 
 {Cook v. Barr, 44 N. Y. 156; Elliott v. Hayden, 104 Mass. 180; Folger 
 v. Boyington , 67 Wis. 447), though only made upon information and 
 belief {Pope v. Ellis, 1 15 U. S. 363 ; cf. Mayor of N. Y. v. Fay, 53 Hun, 
 553). And the same is true of a pleading not so sworn to, if the admis- 
 sions therein were derived from the instructions of the party, or were 
 otherwise authorized or adopted by him {Johnson v. Russell, 144 Mass. 
 409 ; Rockland v. Farnsworth, 89 Me. 481 ; Vogelv. Osborne, 32 Minn. 
 167); aliter, if they were merely the suggestions of the attorney (Id. ; 
 Denniev. Williams, 135 Mass. 28; Delaware Co. v. Diebold Co., 133 
 U. S. 473; Duff v. Duff 71 Cal. 513). But some authorities admit 
 former pleadings as evidence of admissions without insisting so rigor- 
 ously upon these distinctions {Coward v. Clan ton, 79 Cal. 23 ; Raridan 
 v. Cent. Iowa R. Co., 69 la. 527 ; Lamar v. Pearre, 90 Ga. 377). 
 Admissions may also be made in affidavits or depositions, or in evi- 
 dence given in a former proceeding, etc. ( Whiton v. Snyder, 88 N. Y. 
 299; Comm. v. Reynolds, 122 Mass. 454 ; Phenix Ins. Co. v. Clark, 58 
 N. H. 164 ; Bogie v. Nolan, 96 Mo. 85). Admissions made simply for
 
 Chap. IV.] THE LAW OF EVIDENCE. 59 
 
 Article 16.* 
 who may make admissions on behalf of others, and when. 
 
 Admissions may be made on behalf of the real party to 
 any proceeding - — 
 / By any nominal party to that proceeding- ; 1 \ 
 
 * See Note X. [Appendix], 
 one trial cannot be used in another [McKinney v. Salem, jj Ind. 213), 
 but the rule is otherwise, if they are made without such limitation 
 (Holley v. Young, 68 Me. 215 ; Owen v. Cowley, 36 N. Y. 600 ; Perry 
 v. Simpson, etc. Co., 40 Ct. 313 ; Central Branch, etc. R. Co. v. S/wup, 
 28 Kan. 394 ; Ex parte Hayes, 92 Ala. 120). 
 
 Evidence of oral admissions, though competent, is in general not 
 conclusive, and may need to be received with great caution (Gr. Ev. i. 
 §§199, 200 ; Jones v. Knauss, 31 N. J. Eq. 609 ; Haven v. Markstrum, 
 67 Wis. 493 ; Allen v. Kirk, 81 la. 658 ; Miller v. Rowan, 108 Ala. 98). 
 Still, if deliberately made and clearly proved, they may be of much 
 weight (Id.). Admissions may, in proper cases, be explained and 
 shown to be incorrect, or to have been made by mistake or inadvert- 
 ence {Davis v. McCrocklin, 34 Kan. 218 ; Stowe v. Bishop, 58 Vt. 498; 
 Knobloch v. Mueller, 123 111. 554 ; Dale v. Gilbert, 128 N. Y. 625, 628; 
 cf. Brooks v. Belfast, etc. R. Co., 72 Me. 365). But admissions are 
 conclusive when they amount to estoppels (Gr. Ev. i. §§204-208; 
 Halloran v. Halloran, 137 111. 100) ; and admissions made in plead- 
 ing and not obviated by amendment, are conclusive in the same case 
 (Tisdale v. Pres. of D. &* H. Co., 116 N. Y. 416 ; Peck ham Iron Co. 
 v. Harper, 41 O. St. 100 ; see Art. 60). But if the law allows a party 
 to plead several pleas, the admissions in one plea cannot be used 
 against him in another. Glenn v. Sunnier, 132 U. S. 152.] 
 
 ' [Mr. Stephen illustrates this rule by saying that the admissions of an 
 
 /assignor of a chose in action, who is the nominal plaintiff in an action 
 
 ' brought for the benefit of his assignee, are admissible against the 
 
 , latter. But in New York and many other States of this country the 
 
 ' assignee sues in his own name, and there is, therefore, no ground for 
 
 receiving the admissions of the assignor made after the assignment ; 
 
 they are therefore excluded (Van Gelder v. Van Gelder, 81 N. Y. 
 
 625). And evidence of such admissions has been generally rejected 
 
 in this country, even when the rule prevailed that the assignee must 
 
 sue in the assignor's name ( Wing v. Bishop, 3 Allen, 456 ; Butler v. 
 
 Millelt, 47 Me. 492; Sargeant v. Sargeant, 18 Yt. 371 ; Dazey v.
 
 60 A DIGEST OF [Part I. 
 
 By any person who, though not a party to the pro- 
 ceeding, has a substantial interest in the event ; ' 
 
 By any one who is privy in law, 2 in blood, 3 or in estate 4 
 to any party to the proceeding, on behalf of that party. 
 
 Mills, 5 Gilm. (111.) 67 ; Frear v. Evertson, 20 Johns. 142 ; cf. Fay v. 
 Guynon, 131 Mass. 31). But the admissions of the assignee, made 
 after a valid assignment, are relevant against him.] 
 
 1 [Gr. Ev. i. § 180 ; Fickett v. Swift, 41 Me. 65 ; Bigelow v. Foss, 59 
 Me. 162 ; Barber's Adm'r v. Be?ifiett, 60 Vt. 662 ; Benjamin v. Smith, 
 4 Wend. 332, 335, 12 Wend. 404, 407 ; see Taylor v. Grand Trunk R. 
 Co., 48 N. H. 304. But the declarations of a person who is not a party 
 to the record nor a witness are not received to show that he is the 
 real party in interest {Ryan v. Merriam, 4 Allen, 77). 
 
 Under this head is sometimes placed the rule that in an action 
 against a sheriff for the misconduct of his deputy the admissions of 
 the deputy are receivable, on the ground that he is the real party in 
 interest (Gr. Ev. i. § 180, note). But in some States it is held that such 
 declarations are only receivable when they accompanied the deputy's 
 official acts, and therefore formed part of the res gestce. Barker v. 
 Binninger, 14 N. Y. 270 ; Stewart v. Wells, 6 Barb. 79.] 
 
 2 [Thus the admissions of an intestate are receivable against his ad- 
 ministrator {Brown v. Mailler, 12 N. Y. 118; Fellows v. Smith, 130 
 Mass. 378 ; Clouser v. Ruckman, 104 Ind. 588) ; and of testator against 
 executor {Hurlbutv. Hurlbut, T28 N. Y. 420; Childs v. Jordan, 106 
 Mass. 321). So in an action by a widow for dower, admissions made 
 by her husband while living are deemed to be relevant against her. 
 Van Duyne v. Thayre, 14 Wend. 233.] 
 
 3 [Admissions made by an ancestor are receivable against his heirs. 
 Spaulding v. Hallenbeck, 35 N. Y. 204 ; Enders v. Sternbergh, 2 Abb. 
 Dec. 31 ; Davis v. Melson, 66 la. 715 ; Mc Sweeney v. McMillen, 96 
 Ind. 298.] 
 
 4 [Admissions by a grantor of land are relevant against his grantee ; 
 of a landlord against his tenant ; of devisor against devisee ; of any 
 owner of land against those who subsequently derive title from or 
 through him {Chadwick v.Fonner, 69 N. Y. 404 ; New Jersey Zinc Co. 
 v.Lehigh Zinc Co., 59 N. J. L. 189; Potter v. Waite, 55 Ct. 236; 
 Simpson v. Dix, 131 Mass. 179 ; Pickering v. Reynolds, 1 19 Mass. 1 1 1). 
 But the admissions of a tenant for life or years will not bind the re- 
 versioner {Fitzgerald v. Brennan, 57 Ct. 511). As to personal property, 
 see p. 63, post, note. 
 
 Not only those declarations by an owner of land, or by one claiming
 
 Chap. IV.] THE LAW OF EVIDENCE. 61 
 
 A statement made by a party to a proceeding may- be 
 an admission whenever it is made, 1 unless it is made by a 
 person suing or sued in a representative character only, 
 
 title, which are in disparagement of his title, are admissible against the 
 declarant or persons in privity with him (see Bowen v. Chase, 98 U. S. 
 254 ; Dooley v. Baynes, 86 Va. 644), but also those statements made by 
 him while in possession, which show the character of his possession and 
 by what title he claims {Pitts v. Wilder, 1 N. Y. 525 ; Moore v. Hamil- 
 ton, 44 N. Y.666 ; Creighton v. Hoppis, 99 Ind. 369 ; Smith v. Putnam, 
 62 N. H. 369 ; Hale v. Rich, 48 Vt. 217 ; Hale v. Silloway, 1 Allen, 21}: 
 as^.^., to show that he held under adverse claim of title (Aforss v. Salis- 
 bury, 48 N. Y. 636 ; Snsq. etc. R. Co. v. Quick, 68 Pa. 189 ; Mississippi 
 Co. v. Vowels, 101 Mo. 225); or as the tenant or agent of a particular 
 person {Gibney v. Marchay, 34 N. Y. 301 ; Garber v. Doersom, 117 Pa. 
 162 ; Lucy v. Tenn. etc. R. Co., 92 Ala. 246) ; or to show the extent of 
 occupation or boundary {Abeel v. Van Gelder, 36 N. Y. 513 ; Wood v. 
 Fiske, 62 N. H. 173; Flagg v. Mason, 141 Mass. 64; Sharp v. 
 Blankenship, 79 Cal. 411). Such evidence comes properly under the 
 doctrine of res gestw, and by some decisions such statements are held 
 admissible, though they were, when made, in the declarant's own 
 favor (Gr. Ev. :. 3 109 ; see ante, Art. 3, notes ; Bennett v. Camp, 54 Vt. 
 36; Sheaffer \. Eakman, 56 Pa. 144; McConnell \. Hannah, 96 Ind. 
 102 ; contra, Morrill v. Titcomb, 8 Allen, 100 ; in Roebke v. Andrews, 
 26 Wis. 311, the question is fully discussed, pro and con ; cf. Lampe 
 v. Kennedy, 60 Wis. 110; the same question arises as to personal 
 property. Id. ; Mates v. Borne, 123 Ind. 522). But declarations of an 
 owner in possession of land will not be received in place of record 
 evidence, nor to destroy a record title. Gibney v. Marchay, supra ; 
 Dodge v. Trust Co., 93 U. S. 379 ; Hancock Ins. Co. v. Moore, 34 Mich. 
 41 ; but see Loomis v. Wadhams, 8 Gray, 557.] 
 
 1 [Cook v. Barr, 44 N. Y. 156 ; Williains v. Sergeant, 46 N. Y. 481 ; 
 Wiggin v. B. &* A. R. Co., 120 Mass. 201 ; Hatch v. Brown, 63 Me. 
 410; Duncan v. Lawrence, 24 Pa. 154; cf. Shailer v. Bumstead, 99 
 Mass. 112, 127. So if one be substituted as a party after suit brought, 
 his admissions are receivable ( Wadsworth v. Williams, 100 Mass. 
 126). The admissions of a party to a suit against the validity of the 
 claim sued upon have been held competent evidence, though made 
 before he became owner of the claim {Barber s Adnir v. Bennett, 60 
 Vt. 662 ; Taylor v. Grand Trunk R. Co., 48 N. H. 304 ; cf. Fitzgerald 
 v. Weston, 52 Wis. 354). But statements of a party which merely 
 raise a suspicion or conjecture as to the existence of an alleged fact
 
 62 A DIGEST OF [Part 1. 
 
 in which case (it seems) it must be made whilst the per- 
 son making it sustains that character. 1 
 
 A statement made by a person interested in a proceed- 
 ing, or by a privy to any party thereto, is not an admis- 
 sion, unless it is made during the continuance of the in- 
 terest which entitles him to make it. 2 
 
 cannot constitute an admission of its truth. People v. Corey, 148 
 N. Y. 476.] 
 
 1 [Gr. Ev. i. § 179 ; Lamar v. Micou, 112 U. S. 452. Thus the decla- 
 rations of an executor or administrator are not competent as admissions, 
 unless made after his appointment and while he was acting in that 
 capacity and representing the estate {Church v. Howard, 79 N. Y. 
 415 ; Brooks v. Goss, 61 Me. 307 ; Webster v. Le Compte, 74 Md. 249 ; 
 see Heywood v. Heywood, 10 Allen, 105). But if he sues or is sued 
 in an individual capacity, his admissions made at other times are 
 receivable (see Whiton v. Snyder, 88 N. Y. 299). And his admissions 
 made as party in one suit are receivable against him as party in 
 another {Phillipps v. Middlesex , 127 Mass. 262). 
 
 Admissions made by a guardian will not be allowed by the courts to 
 prejudice the rights of his ward. Buffalo Loan, etc. Co. v. Knights 
 Templar Ass n, 126 N. Y. 450 ; Cooper v. Mayhew, 40 Mich. 528.] 
 
 '-' [Thus declarations by a grantor or mortgagor of land, which were 
 made before he acquired or after he parted with his title or interest, are 
 not receivable as admissions against his grantee or mortgagee {Hutchins 
 v. Hutchins, 98 N. Y. 56 ; Chase v. Horton, 143 Mass. 118; Ruckman v. 
 Cory, 129 U. S. 387 ; McLaughlin v. McLaughlin, 91 Pa. 462 ; Miller v. 
 Cook, 135 111. 190); nor those of an assignor of chattels or choses in .action 
 against the assignee, when they were made after the assignment and 
 transfer of possession {Coyne v. Weaver, 84 N. Y. 386 ; Burnham v. 
 Brennan, 74 N. Y. 597; Roberts v. Medbery, 132 Mass. 100; Win- 
 chester, etc. Co. v. Creary, 1 16 U. S. 161 ; Ohio Coal Co. v. Davenport, 
 37 O. St. 194 ; Turner v. Hardin, 80 la. 691). But if a transferor of 
 land or chattels remains in possession, his declarations characterizing 
 that possession are generally deemed competent, under the doctrine 
 of res gestw {Pier v. Duff, 63 Pa. 59 ; Robbins v. Spencer, 140 Ind. 483 ; 
 Loos v. Wilkinson, 1 10 N. Y. 195 ; Merriam v. Swensen, 42 Minn. 383 ; 
 Roberts v. Medbery, supra; see Williams v. Williams, 142 N. Y. 156). 
 In some States the declarations of an assignor of personal property, 
 made while he remains in continuous possession of it after the assign- 
 ment, are receivable to show fraud as to creditors {Adams v. Davidson, 
 10 N. Y. 309; Tilson v. Tenvilliger, 56 N. Y. 273 ; Murch v. Swensen,
 
 Chap. IV.] THE LAW OF EVIDENCE. 63 
 
 Illustrations. 
 (a) The assignee of a bond sues the obligor in the name of the 
 obligee. 
 
 40 Minn. 421 ; Boyd v. Jones, 60 Mo. 454 ; Smith v. Boyer, 29 Neb. 76; 
 Dodge v. Goodell, 16 R. I. 48; Kirby v. Masten, 70 N. C. 540; cf. Loos 
 v. Wilkinson, no N. Y. 195); and the same rule has been applied to 
 declarations of grantors of land {Osgood v. Eatoti, 63 N. H. 355 ; U. S, 
 v. Griswold, 8 F. R. 556; Byrdx. Jones, 84 Ala. 336; cf. Williams v. 
 Williams, 142 N. Y. 156; Hart v. Randolph, 142 111. 521; McCormicks 
 v. Williams, 56 la. 143). But the declarations of a grantor cf realty 
 or assignor of personalty, made after the transfer of possession, cannot 
 be received for the same purpose (Ho lb rook v. Ho lb rook, 113 Mass. 
 74; Flamiery v. Van Tassel, 131 N. Y. 639), unless there be a con- 
 spiracy between the parties to defraud creditors and such declarations 
 are made in pursuance of the conspiracy (Id. ; Cuyler v. McCartney, 
 40 N. Y. 221 ; Souder v. Schechterly, 91 Pa. 83 ; Jones v. Simpson, 1 16 
 U. S. 609 ; Daniels v. McGinnis, 97 Ind. 549 ; see Art. 4). 
 
 The admissions of an assignor of a chattel or chose in action, made 
 while he had ownership and possession, are in many States held com- 
 petent against his assignee (Hanchcltv. Kimbark, 1 18 111. 121 ; Taylor 
 v. Hess, 57 Minn. 96; Merrick v. Park man, 18 Me. 407; Alger v. 
 Andrews, 47 Vt. 238; Magee v. Raiguel, 64 Pa. no; Bond v. Fitz- 
 patrick, 4 Gray, 89 ; Randegger v. Ehrhardt, 51 111. 101 ; aliter, as to 
 commercial paper negotiated before maturity) ; but the rule is some- 
 times limited by important qualifications (Coit v. Howd, 1 Gray, 547). 
 This rule is like that applied to real estate (see p. 60, note 4, ante). But 
 in New York, while the rule as to realty is accepted, a different rule 
 is applied to personalty, and it is held that the declarations of the 
 assignor, though made before the assignment, are not admissible 
 against an assignee for value or for the benefit of creditors (Paige v. 
 Cagwin, 7 Hill, 361 ; Von Sachs v. Kretz, 72 N. Y. 548, 554 ; Bush v. 
 Roberts, m N. Y. 278), unless they were made in pursuance of .'. 
 fraudulent conspiracy between the parties, or in fraudulent salts 
 where the vendor remains in continuous possession, etc. (Flanncry v. 
 Van Tassel, 127 N. Y. 631). The same rule is adopted by. the U. S. 
 Supreme Court (Dodge v. Trust Co., 93 U. S. 379 ; S. P. Deasey v. 
 Thurman, 1 Ida. 775). But against other assignees, not acquiring 
 title for value (as an executor, etc.), such declarations of the assignor 
 are competent ( Von Sachs v. Krctz, supra). And an assignor's decla- 
 rations may be proved as part of the res gesto?, even as against a 
 holder for value if they were made at the time of the transfer and 
 serve to qualify the title. Benjamin v. Rogers, 126 N. Y. 60.]
 
 64 A DIGEST OF [Part I. 
 
 An admission on the part of the obligee that the money due has 
 been paid is deemed to be relevant on behalf of the defendant. 1 
 
 (b) An admission by the assignee of the bond in the last Illustration 
 would also be deemed to be relevant on behalf of the defendant. 
 
 (da) [The question is, whether a horse was sold to the defendant by 
 the plaintiff for $500, or was entrusted to him as a bailee. 
 
 The defendant upon seeing an entry made in the plaintiff's book of 
 account immediately after the transaction, charging him with $500 as 
 the price of the horse, admitted its accuracy ; this admission is 
 deemed to be relevant against him.] ' 2 
 
 (bb) [A sues B to recover the possession of land. A claims under C 
 and B claims under D. Declarations made by D while in possession 
 of the land that C was the owner are admissible against B.] 3 
 
 {be) [The admissions of a holder of a promissory note after maturity, 
 made while he held it, are deemed to be relevant against a subsequent 
 holder.] 4 
 
 (c) A statement made by a person before he becomes the assignee 
 of a bankrupt is not deemed to be relevant as an admission by him in 
 a proceeding by him as such assignee. 5 
 
 (d) Statements made by a person as to a bill of which he had been 
 the holder are deemed not to be relevant as against the holder, if they 
 are made after he has negotiated the bill. 6 
 
 (e) [A sues B to recover his salary for services rendered as foreman 
 of B's tannery. 
 
 A witness X testifies that B had declared to him that he had dis- 
 charged A and that he was to pay A S400 a year ; and that in the 
 same conversation B said that A got drunk, was absent and neglected 
 his business, and that on that account he had discharged him. These 
 qualifying statements were admitted in evidence in connection with 
 the admission.] 7 
 
 1 See Moriarty v. L. C. &> 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 
 
 (<?) A, B, and C sue D as partners upon an alleged contract re- 
 specting the shipment of bark. An admission by A that the bark was 
 his exclusive property and not the property of the firm is deemed to 
 be relevant as against B and C. 2 
 
 (/) A, B, C, and D make a joint and several promissory note. 
 Either can make admissions about it as against the rest. 3 
 
 (g) The question is, whether A accepted a bill of exchange. A 
 notice to produce the bill signed by A's solicitor and describing the 
 bill as having been accepted by A is deemed to be a relevant fact. 4 
 
 (h) The question is, whether a debt to A, the plaintiff, was due from 
 B, the defendant, or from C. A statement made by A's solicitor to 
 B's solicitor in common conversation that the debt was due from C is 
 deemed not to be relevant against A. 5 
 
 (i) One co-part-owner of a ship cannot, as such, make admissions 
 against another as to the part of the ship in which they have a common 
 interest, even if he is co-partner with that other as to other parts of 
 the ship. 6 
 
 (/) A is surety for B, a clerk. B being dismissed makes statements 
 as to sums of money which he has received and not accounted for. 
 These statements are not deemed to be relevant as against A, as ad- 
 missions. 7 
 
 1 Langhorn v. Allnutt, 4 Tau. 511. 
 
 2 Lucas v. De La Coitr, 1 M. & S. 249. [Cf. Brake v. Kimball, 5 
 Sandf. 237 ; Harding v. Butler, 156 Mass. 34; but see Williams v. 
 Lewis, 115 Ind. 45.] 
 
 3 Whitcomb v. Whiting, 1 S. L. C. 644. [The decisjon in this case 
 was that the acknowledgment of one of the drawers of a joint and 
 several note took it out of the Statute of Limitations as against the 
 others. This case is followed in some States of this country, rejected 
 in others. Kallenbach v. Dickinson, 100 111. 427 ; Murdoch v. Water- 
 man, 145 N. Y. 55, 63 ; see p. 67, ante, note.] 
 
 4 Holt v. Squire, Ry. & Mo. 282. 
 
 5 Fetch v. Lyon, 9 Q. B. 147 ; [Saunders v. McCarthy, 8 Allen, 43.] 
 
 6 /aggers v. Binning, 1 Stark. 64. [The New Orleans, 106 U. S. 13; 
 McLellan v. Cox, 36 Me. 95 ; see Smith v. Aldrich, 12 Allen, 553.] 
 
 1 Smith v. Whippingham, 6 C. & P. 78. See also Evans v. Beattie, 
 5 Esp. 26 ; Bacon v. Chesney, 1 Stark. 192 ; Caermarthen R. Co. v. 
 Manchester R. Co., L. R. 8 C. P. 685.
 
 72 A DIGEST OF [Part I. 
 
 Article 18.* 
 admissions by strangers. 
 
 vStatements by strangers to a proceeding- are not 
 relevant as against the parties, 1 except in the cases here- 
 inafter mentioned. 
 
 In actions against sheriffs for not executing process 
 against debtors, statements of the debtor admitting his 
 debt to be due to the execution creditor are deemed to be 
 relevant as against the sheriff. 2 
 
 In actions by the trustees of bankrupts an admission 
 by the bankrupt of the petitioning creditor's debt is 
 deemed to be relevant as against the defendant. 3 
 
 Article 19. f 
 
 ADMISSION BY PERSON REFERRED TO BY PARTY. 
 
 When a party to any proceeding expressly refers to any 
 other person for information in reference to a matter in 
 
 * See Note XII. [Appendix]. | See Note XIII. [Appendix]. 
 
 1 Coole v. Braham, 3 Ex. 183. \Nelson v. Flint, 166 U. S. 276; 
 Brown v. Mailler, 12 N. Y. 118; Happy v. Mosher, 48 N. Y. 313; 
 Lyon v. Manning, 133 Mass. 439; Wilson v. Boivden, 113 id. 422; 
 Montgomery v. Brush, 121 111. 513. But statements made by a 
 stranger in the presence and hearing of a party, and naturally calling 
 for a reply, may be deemed admissions of the party if he keeps silent; 
 see ante, p. 25, note 1.] 
 
 '-' Kempland v. Macaulay, Peake, 95 ; Williams v. Bridges, 2 Stark. 
 42 ; [Mart v. Stevenson, 25 Ct. 499 ; Pugh v. M'Bae, 2 Ala. 393.] 
 
 8 Jarrett v. Leonard, 2 M. & S. 265, (adapted to the new law of bank- 
 ruptcy). [This rule as thus stated is peculiarly applicable to English 
 practice. But in New York it is held that the declarations of a bank- 
 rupt, made before the bankruptcy, are competent against his assignee 
 in bankruptcy, to establish or support a claim against the bankrupt's 
 estate. Von Sachs v. Kretz, 72 X. Y. 548; see Holt v. Walker, 26 
 Me. 107 ; Carnes v. White, 15 Gray, 378; Wellington v. Jackson, 121 
 Mass. 157 ; /// re Clark, 9 Blatch. 379]
 
 Chap. IV.] THE LAW OF EVIDENCE. 73 
 
 dispute, the statements of that other person may be admis- 
 sions as against the person who refers to him. 1 
 
 Illustration. 
 The question is, whether A delivered goods to B. B says, " If C " 
 (the carman) " will say that he delivered the goods, I will pay for 
 them." C's answer may as against B be an admission. 2 
 
 Article 20.* 
 admissions made without prejudice. 
 
 No admission is de'emed to be relevant in any civil action 
 if it is made either upon an express condition that evi- 
 dence of it is not to be given, 3 or under circumstances 
 from which the judge infers that the parties agreed to- 
 
 * See Note XIV. [Appendix]. 
 
 1 [Gr. Ev. i. § 182 ; Gott v. Dinstnore, 1 1 1 Mass. 45 ; Wehle v. Spel- 
 man, 1 Hun, 634, 4 T. & C. 649 ; Chadsey v. Greene, 24 Ct. 562 ; 
 Chapman v. Twitchell, 37 Me. 59; Folsom v. Batchelder, 22 N. H. 
 47 ; Beebe v. Knapp, 28 Mich. 53 ; cf. Adler-Gold?nan Co. v. Adams 
 Exp. Co., 53 Mo. App. 284. But the statements of the referee are 
 only admissible when they relate to the subject-matter of the refer- 
 ence {Duval v. Covenhover, 4 Wend. 561 ; Lambert v. People, 76 N. Y. 
 220 ; Allen v. Killinger, 8 Wall. 480), and when he was referred to 
 in such a way as to show an intention to give him authority like that 
 of an agent to make admissions (Rosenbury v. Angell, 6 Mich. 508 ; 
 Proctor x. Old Colony R. Co., 154 Mass. 251). Statements made by 
 the referee before the reference are also not admissible (Co/in v. 
 Goldman, 76 N. Y. 284). 
 
 If persons speaking different languages communicate by an inter- 
 preter, his version of their words may be proved as their own declara- 
 tions (Gr. Ev. i. §183; Comm. v. Vose, 157 Mass. 393; Wright v. 
 Maseras, 56 Barb. 521 ; Miller v. Lathrop, 50 Minn. 91). But evi- 
 dence of statements made by an interpreter that a party had made 
 admissions to him is hearsay and inadmissible. Territory v. Big 
 Knot, 6 Mont. 242.] 
 
 2 Daniel v. Pitt, 1 Camp. 366, n.; see, too, R. v. Mallory, 13 Q. B. D. 
 33. This is a weaker illustration than Daniel v. Pitt. 
 
 3 Cory v. Bretton, 4 C. & P. 462 ; [Copelandv. Taylor, 99 Mass. 613.]
 
 74 A DIGEST OF [Part I. 
 
 gether that evidence of it should not be given, 1 or if it 
 was made under duress. 2 
 
 Illustrations. 
 
 (a) [A sued B to recover a debt for services rendered. B denied 
 the indebtedness. A year after the action was begun B wrote this 
 letter to A : " Dear Sir : To save cost and stop further litigation, I am 
 willing to send you my check for fifty dollars in full liquidation of 
 your claim." On the trial this letter was held not receivable in evi- 
 dence against B as an admission.] 3 
 
 (d) [A sued B intmvjej^ior a colt. Both were brought together by 
 friends, that they might talk over and settle the case. During the 
 
 1 Paddock v. Forester, 3 M. & G. 918. [Under this rule statements 
 incorporating the express qualification that they shall be " without 
 prejudice " are deemed not to be relevant as admissions ( Walker v. 
 Wilsher, 23 Q. B. D. 335 ; Perkins v. Concord R. Co., 44 N. H. 223). 
 So statements made as offers to compromise a claim, or to " buy peace," 
 as it is termed, are not competent e/idence as admissions (Illustration 
 (a) ; Gr. Ev. i. § 192 ; Draper v. Hatfield, 124 Mass. 53 ; Home Ins. 
 Co v. Baltimore, etc. Co., 93 U. S. 527 ; Tennant v. Dudley, 144 N. Y. 
 504 ; Slingerland v. Norton, 58 Hun, 578 ; Montgomery v. Allen, 84 
 Mich. 656 ; Louisville, etc. R. Co. v. Wright, 115 Ind. 378). They are 
 equivalent to statements "without prejudice" {West v. Smith, 101 
 U. S. 263, 273; Reynolds v. Manning, 15 Md. 510; White v. Old 
 Dominion St' ft Co., 102 N. Y. 660). But an admission of an inde- 
 pendent fact is relevant, though made during a negotiation for com- 
 promise (Illustration (d); Barllettv. Tarbox, 1 Abb. Dec. 120 ; Durgin 
 v. Somers, 117 Mass. 55 ; Arthur v. James, 28 Pa. 236 ; Doon v. Ravey, 
 49 Yt. 293 ; Beaudette v. Gagne, 87 Me. 534 ; Manistee Nat. Bk. v. 
 Seymour, 64 Mich. 59 ; Broschart v. Tuttle, 59 Ct. 1 ; Colburn v. Gro- 
 ton, 66 N. H. 151 ; Binfordv. Young, 115 Ind. 174 ; cf. Brice v. Bauer, 
 108 N. Y. 428). This is the general American rule.] 
 
 2 Stockfleth v. De Tastet, per Ellenborough, C. J., 4 Camp. 1 1. [But 
 admissions made by a party, while testifying as witness in a prior suit, 
 are relevant against him ; the legal constraint to testify is not deemed 
 "duress" under this rule (Gr. Ev. i. § 193 ; see Art. 15, ante, note; 
 Tooker v. Gonner, 2 Hilt. 71). 
 
 A court of equity will sometimes restrain the use of admissions 
 obtained by fraud and duress. Callender v. Callender, 53 How. Pr. 
 
 364.] 
 
 '•'■[Smith v. Satterlee, 130 N. Y. 677.]
 
 Chap. IV.J THE LAW OF EVIDENCE. 75 
 
 conversation A said he would be glad to have the colt, to which B 
 replied, " I sold the colt about four weeks after I got it." Then A 
 said, " I demanded the colt, you recollect ? " and B answered, "Yes." 
 No settlement being effected, these declarations were held admissible 
 against B on the trial, as admissions that he had sold the property, 
 and that a demand for it had been made upon him.l J 
 
 s 
 
 [#LE 21. 
 
 Artk 
 confessions defined. 
 
 A confession is an admission made at any time by a 
 person charged with a crime, stating or suggesting the 
 inference that he committed that crime. 2 Confessions, 
 
 1 [Dickinson v. Dickinson, 9 Met. 471.] 
 
 2 [The word " confession " denotes an acknowledgment of guilt. 
 Acknowledgments of other matters of fact in a criminal case are 
 termed "admissions" (Gr. Ev. i. § 170 ; People v. Hickman, 113 Cal. 
 80, 86 ; Fletcher v. State, 90 Ga. 468 ; Taylor v. State, 37 Neb. 788 ; 
 State v. Heidenreich, 29 Or. 381). 
 
 Confessions may not only be made expressly, but may also be im- 
 plied from a person's keeping silence when he is charged with a 
 crime under such circumstances that he would naturally reply (Spar/ 
 v. United States, 156 U. S. 51 ; Comm. v. McCabe, 163 Mass. 98; 
 Richards v. State, 82 Wis. 172 ; see Art. 8, ante, last paragraph, and 
 note). This is true in some States, even though he be under arrest at 
 the time (Kelley v. People, 55 N. Y. 565 ; Murphy v. State, 36 O. St. 628 ; 
 Ackerson v. People, 124 111. 563 ; cf. Ettinger v. Comm., 98 Pa. 338; 
 contra, Comm. v. McDcnnott, 12-3 Mass. 440; State v. Howard, 102 
 Mo. 142). 
 
 It is a general rule that an extra-judicial confession (i. e., one made 
 out of court) is not sufficient to sustain a conviction, unless corroborated 
 by additional proof of the corpus delicti (Gr. Ev. i. § 217 ; People v. 
 Hennessy, 15 Wend. 147; N. Y. Code Cr. Pro. § 395; Campbell 'v. 
 People, 159 III.9; People v. Simonsen, 107 Cal. 345; Ryan v. State, 
 100 Ala. 94 ; State v. Walker, 98 Mo. 95 ; Gray v. Comm., ioi-Pa. 380 ; 
 People v.Lane, 49 Mich. 340 ; Blackburn v. State, 23 O. St. 146 ; State 
 v. Knowles, 48 la. 598). It is also an important rule that the whole of 
 a confession is to be taken together, so that the prisoner may have 
 the benefit of all qualifying or exculpatory statements incorporated 
 therein (Gr. Ev. i. §218 ; State v. McDonnell, 32 Vt. 491 ; Moreheadw.
 
 76 A DIGEST OF [Part I. 
 
 if voluntary, are deemed to be relevant facts as against 
 the persons who make them only. 1 
 
 Article 22.* 
 
 confession caused by inducement, threat, or promise, 
 when irrelevant in criminal proceeding. 
 
 No confession is deemed to be voluntary if it appears 
 to the judge to have been caused by any inducement, 
 
 * See Note XV. [Appendix]. 
 State, 34 O. St. 212 ; Corbett v. State, 31 Ala. 329; see People v. 
 Ruloff, 3 Park. Cr. 401). But part of a conversation may be proved, 
 if it amounts to a confession which is substantially complete {Comm. 
 v. Pitsinger, no Mass. 101 ; Levison v. State, 54 Ala. 520). Facts 
 which explain or qualify a confession, or show it to be untrue in 
 whole or in part, may be adduced in evidence by the defendant 
 {State v. Hutchinson, 60 la. 478 ; People v. Fox, 121 N. Y. 449). 
 
 Judicial confessions will warrant a conviction without corroborative 
 proof of the corpus delicti {State v. Lamb, 28 Mo. 218 ; Dantz v. State, 
 87 Ind. 398) ; as e.g., upon a plea of "guilty" in cases either of felony 
 or misdemeanor {Hallinger v. Davis, 146 U. S. 314 ; Green v. Com?n., 
 12 Allen, 155 ; Comm. v. Brown, 150 Mass. 331 ; Craig v. State, 49O. 
 St. 415 ; People v. Lennox, 67 Cal. 113), or a plea of non volo contendere 
 {Comt/i. v. Holstine, 132 Pa. 357). But the court may permit a plea of 
 "guilty " to be withdrawn, when it is due to the prisoner's ignorance 
 weakness or fears, to deception or duress practiced upon him, or other 
 like causes {Myers v. State, 115 Ind. 554 ; Gardner v. People, 106 111. 
 76 ; State v. Stephens, 71 Mo. 535 ; U. S. v. Bayaud, 21 Blatch. 217). 
 A plea so withdrawn cannot afterwards be proved against the prisoner 
 as a confession {People v. Ryan, 82 Cal. 617). In New York no con- 
 viction may be had upon a plea of guilty in cases punishable with 
 death. N. Y. Code Cr. Pro. § 332.] 
 f 1 [Thus the confession of one of two or more defendants in a criminal 
 ase, not made in the presence of the others, is evidence against him- 
 self only, and not against the others {Spar/ v. United States, 15c* U. 
 J&. 51 ; Comm. v. Ingraham, 7 Gray, 46 ; State v. Albert, 73 Mo. 347 ; 
 People v. Stevens, 47 Mich. 41 1 ; Fife v. Comm., 29 Pa. 429 ; Ackerson 
 v. People, 124 111. 563). As to the declarations of conspirators, see 
 Art. 4, ante.]
 
 Chap. IV.] THE LAW OF EVIDENCE. 77 
 
 threat, or promise, proceeding from a person in authority, 
 and having- reference to the charge against the accused 
 person, whether addressed to him directly or brought to 
 his knowledge indirectly ; ' 
 
 and if (in the opinion of the judge) 2 such inducement, 
 threat, or promise, gave the accused person reasonable 
 
 1 [The admissibility of confessions is to be determined by the judge, 
 their weight by the jury ( Willett v. People, 27 Hun, 469 ; Comm. v. 
 Culver, 126 Mass. 464 ; Palmer v. State, 136 Ind. 393 ; State v. Kin- 
 der, 96 Mo. 548 ; State v. Holden, 42 Minn. 350 ; Biscoe v. State, 67 
 Md. 6 ; Lefevre v. State, 50 O. St. 584 ; and cases infra). But in some 
 States, as in England, when a confession is offered in evidence, the 
 burden of proof is on the prosecutor to show it to be voluntary 
 {Bradford v. State, 104 Ala. 68 ; Wrye v. State, 95 Ga. 467 ; Nicholson 
 v. State, 38 Md. 140 ; People v. Soto, 49 Cal. 67 ; Thompson v. Comm., 
 20 Gratt. 724 ; R. v. Thompson, [1893] 2 Q. B. 12). In other States it is 
 considered prima facie voluntary, but the defendant may object to its 
 being admitted in evidence and show it to have been improperly ob- 
 tained and so cause its exclusion (Comm. v. Sego, 125 Mass. 210; 
 Comm. v. Culver, supra ; Rufcr v. State, 25 O. St. 464 ; State v. 
 Meyers, 99 Mo. 107 ; People v. Barker, 60 Mich. 277 ; State v. Davis, 
 34 La. Ann. 351 ; cf. People v. Fox, 121 N. Y. 448). In some States, 
 moreover, when the evidence is conflicting whether a confession is 
 voluntary or not, the question may be left to the jury, with instructions 
 to disregard the confession if they find it to be involuntary. Comm. 
 x.Preece, 140 Mass. 276 ; Burdge v. State, 53 O. St. 512; Wilson v. 
 U. S., 162 U. S. 613 ; contra, Ellis v. State, 65 Miss. 44.] 
 
 ' 2 It is not easy to reconcile the cases on this subject. In R. v. 
 Baldry, decided in 1852 (2 Den. C. C. 430), the constable told the pris- 
 oner that he need not say anything to criminate himself, but that what 
 he did say would be taken down and used as evidence against him. 
 It was held that this was not an inducement, though there were 
 earlier cases which treated it as such. In R. v.Jarvis, L. R. 1 C. C. 
 R. 96, the following was held not to be an inducement : " I think it is 
 right I should tell you that, besides being in the presence of my 
 brother and myself " (prisoner's master), " you are in the presence of 
 two officers of the police ; and I should advise you that to any question 
 that may be put to you, you will answer truthfully, so that if you have 
 committed a fault you may not add to it by stating what is untrue. 
 Take care. We know more than you think we know." So in R. v. 
 Reeve, L. R. 1 C. C. R. 362, where the words were, " You had better, as
 
 78 A DIGEST OF [Part I. 
 
 grounds for supposing that by making a confession he 
 would gain some advantage or avoid some eyil in reference 
 to the proceedings against him. 1 
 
 good boys, tell the truth," the confession was held admissible. In R. v. 
 Fennell, 7 Q. B. D. 147, the prosecutor, in the presence of the police 
 inspector, said to the prisoner: "The inspector tells me you are making 
 housebreaking implements ; if that is so, you had better tell the truth, 
 it may be better for you ; " these words were held to exclude the con- 
 fession which followed. There are later cases (unreported) which 
 follow these. [See Illustrations (aa) and (ab) ; Comm. v. Preece, 140 
 Mass. 276 ; State v. Anderson, 96 Mo. 241 ; Ross v. State, 67 Md. 286 ; 
 Kelly v. State, 72 Ala. 244 ; Bram v. U. S., 168 U. S. 532.] 
 
 1 [People v. Phillips, 42 N. Y. 200 ; Comm. v. Curtis, 97 Mass. 574 ; 
 Fife v. Comm., 29 Pa. 429 ; Flagg v. People, 40 Mich. 706 ; Robinson 
 v. State, 159 111. 115; State v. Jones, 54 Mo. 478. But a confession 
 made to a person in authority, even though obtained by his induce- 
 ments, solicitations, or inquiries, is deemed to be voluntary, if no in- 
 ducements, threats, or promises are used which are calculated to 
 excite hope or fear in respect to the proceedings against the prisoner 
 (Illustration (ac) ; Com?n. v. Sego, 125 Mass. 210 ; People v. IVents, 37 
 N. Y. 303 ; State v. Fortner, 43 la. 494 ; Comm. v. Morey, 1 Gray, 461.; 
 Fife v. Comm., supra) ; and the same is true if improper threats or 
 promises are made, but it satisfactorily appears that the confession 
 was not induced thereby (Hartley v. People, 156 111. 234). So confes- 
 sions made by the prisoner while in custody are competent, if the 
 officer use no such improper inducements or threats (People v. Cox, 
 80 N. Y. 501 ; Pierce v. U. S., 160 U. S. 535 ; McQueen v. State, 94 
 Ala. 50 ; Comm. v. Cttffce, 108 Mass. 285 ; Comm. v. Mosler, 4 Pa. 264; 
 People v. Eckman, 72 Cal. 582), and that, too, even if the prisoner be 
 in irons and expecting to die from the effects of poison (State v. Gor- 
 /,\j?>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 (<?), {g), (h) ; Secor v. Sturgis, 
 16 N. Y. 548 ; Baird v. U. S., 96 U. S. 430 ; Bennett v. Hood, 1 Allen, 
 47 ; Buck v. Wilson, 113 Pa. 423). So a judgment is conclusive as to 
 the grounds of recovery or defence which, under the issues, might 
 have been but were not presented (Illustration (_/") ; Beloit v. Morgan, 
 7 Wall. 619 ; Harmon v. Auditor, 123 111. 122; Lieb v. Lichtenstein, 
 121 Ind. 483) ; if, therefore, judgment goes against a defendant, this 
 will bar any subsequent action by him, based on a ground of defence 
 which he might have interposed in the former suit (Illustrations (/), 
 (/) ; White v. Merritt, 7 N. Y. 352 ; Homer v. Fish, 1 Pick. 435 ; 
 Gleason v. Knapp, 56 Mich. 291 ; Johnson Co. v. Wharton, 152 U. S. 
 252 ; Malkmey v. Horan, 49 N. Y. in ; Reich v. Cochran, 151 N. Y. 
 122). But matters of set-off and recoupment (and sometimes other 
 matters), though not set up by the defendant in actions where they 
 might be so pleaded, may still be sued on independently, unless a 
 recovery upon them would be inconsistent with what was decided by 
 the former judgment {Brown v. Gallaudet, 80 N. Y. 413 ; Malloney 
 v. Horan, 49 N. Y. m ; Yates v. Fassett, 5 Den. 21 ; Bascovi v. Man- 
 ning, 52 N. H. 132; Fiske v. Steele, 152 Mass. 260; Mimnangh v. 
 Partlin, 67 Mich. 391) ; if, however, such matters are pleaded and 
 determined by way of counterclaim, the judgment will bar any sub- 
 sequent action upon them {Howe v. Lewis, 121 Ind. no; Patrick v. 
 Shaffer, 94 N. Y. 423). 
 
 When a second suit is upon a differe7it cause of action, though be- 
 tween the same parties, the former judgment is a bar only as to the 
 matters which actually were, and not as to those which might have 
 been, litigated and determined {Nesbitt v. Riverside Dist., 144 U. S. 
 610 ; Foye v. Patch, 132 Mass. 105 ; Metcalfv. Gilmore, 63 N. H. 174 ; 
 City of Paterson v. Baker, 51 N. J. Eq. 49 ; Bond v. A/arkstrum, 102 
 Mich. 11 ; Hixson v. Ogg, 53 O. St. 361 ; Wright v. Griffey, 147 111. 
 496). 
 
 Some additional rules of importance concerning judgments are the 
 following : {a) A judgment, in order to conclude parties and privies, 
 must be a final decision on the merits (Gr. Ev. i. §§ 529, 530 ; Webb v. 
 Buckelew, 82 N. Y. 555). Thus a judgment of nonsuit or of dismissal 
 of the complaint in an action at law does not bar another action {Smith 
 v. McNeal, 109 U. S. 426 ; Wheeler v. Ruckman, 51 N. Y. 391), though 
 a dismissal in equity on the merits will have that effect {Lyon v. Perin 
 Mfg. Co., 125 U. S. 698 ; Edgar v. Buck, 65 Mich. 356; aliter, if not 
 on the merits, Hughes v. U. S., 4 Wall. 232 ; Henninger v. Heald, 51 
 N. J. Eq. 74 ; see N. Y. Code Civ. Pro. § 1209). So if there be a dis-
 
 122 A DIGEST Of [Par* 
 
 evidence was admitted in the action in which the judg- 
 
 continuance {Loeb v. Willis, ioo N. Y. 231), or the action be prema- 
 turely brought {Rose v. Hawley, 141 N. Y. 366 ; Brackett v. People, 115 
 111. 29), or a plea in abatement be sustained {Atkins v. Anderson, 63 
 la. 139), judgment for such causes is no bar. A verdict without judg- 
 ment entered is no bar {Springer v. Bien, 128 N. Y. 99 ; Smith v. Mc- 
 Cool, 16 Wall. 560). {b) Judgment on demurrer, rendered for defend- 
 ant on the merits, is a bar to another action on substantially the same 
 complaint ; but not to an action on a new complaint founded on the 
 same transaction but containing new or amended averments so as to 
 present a good cause of action {Gould v. Evansville R. Co., 91 U. S. 
 533 I Wiggins Co. v. Ohio, etc. R. Co., 142 U. S. 396 ; Rodman v. Mich. 
 Cent. R. Co., 59 Mich. 395 ; Slowellv. Chamberlain, 60 N. Y. 272; 
 Detrick v. Sharrar, 95 Pa. 521 ; but see Lamb v. McConkcy, 76 la. 47). 
 {c) Judgment by confession or default is a bar {Town v. Smith, 14 
 Mich. 348 ; Goebel v. Iffla, in N. Y. 170 ; Last Chance Mining Co. v. 
 Tyler Co., 157 U. S. 683 ; Spring Run Co. v. Tosier, 102 Pa. 342); so is 
 judgment by retraxit {U. S. v. Parker, 120 U. S. 89), and judgment 
 entered upon an offer made by the adverse party and accepted {Shep- 
 herd 'v. Moodhe, 150 N. Y. 183). {d) An interlocutory order is not, in 
 general, conclusive between parties ( Webb v. Buckelew, 82 N. Y. 555 ; 
 Riggs v. Pursell, 74 N. Y. 380 ; Selz v. Presburger, 49 N. J. L. 396 ; 
 Allison v. Whittier, 101 N. C. 490 ; Heidelv. Be7iedict, 61 Minn. 170; 
 Miami Nat. Bk. v. Barkalow, 53 Kan. 68 ; but see Commrs. of Wil- 
 son Co. v. Mcintosh, 30 Kan. 234); aliter, as to final orders on the mer- 
 its in special proceedings, where there are opposing parties who have 
 full opportunity to be heard (Id. ; Culrose v. Gibbons, 130 N. Y. 447 ; 
 Spitley v. Frost, 15 F. R. 299 ; cf. Prauenlhal's Appeal, 100 Pa. 290). 
 {e) A judgment of a court of competent jurisdiction, whether of law, 
 equity, admiralty, etc., will bar an action on the same ground in an- 
 other court whose jurisdiction is of a different nature ( Westcott v. Ed- 
 munds, 68 Pa. 34 ; Powers v. Chelsea Sav. Bk., 129 Mass. 44 ; Good- 
 rich v. City, 5 Wall. 566 ; People v. Rickert, 159 111. 496). Thus if one 
 sues on a contract at law as it is, and judgment is rendered against 
 him, he cannot afterwards sue in equity to reform the contract 
 {Steinbach v. Relief his. Co., 77 N. Y. 498). 
 
 Special rules apply to particular actions or proceedings : {a) In 
 an action of ejectment, at common law, one judgment does not bar 
 repeated actions between the same parties {Small v. Mitchell, 143 U. 
 S. 99 ; Stevens v. Hughes, 31 Pa. 381, 384 ; Sutton v. Dameron, 100 
 Mo. 141); but by statute in some States concurrent judgments in two 
 successive actions will be a bar {Rlanchard v. Brown, 3 Wall. 245 ; X.
 
 Chap. IV.] THE LAW OF EVIDENCE. 123 
 
 ment was delivered which is excluded in the action in 
 which that judgment is intended to be proved. 1 
 
 Illustrations. 
 
 (a) The question is, whether C, a pauper, is settled in parish A or 
 parish B. 
 
 D is the mother and E the father of C. D, E, and several of their 
 children were removed from A to B before the question as- to C's 
 settlement arose, by an order unappealed against, which order de- 
 scribed D as the wife of E. 
 
 The statement in the order that D was the wife of E is conclusive 
 as between A and B. 2 
 
 {b) A and B each claim administration to the goods of C, deceased. 
 
 Administration is granted to B, the judgment declaring that, as far 
 as appears by the evidence, B has proved himself next of kin. 
 
 Afterwards there is a suit between A and B for the distribution of 
 the effects of C. The declaration in the first suit is in the second suit 
 conclusive proof as against A that B is nearer of kin to C than A. 3 
 
 Y. Code Civ. Pro. § 1525 ; Britton v. Thornton, 112 U. S. 526), while 
 in other States one judgment is a bar {Sturdy v. Jackaway, 4 Wall. 
 174). (b) A judgment for damages for a nuisance or trespass will not 
 bar an action for a continuance of the injury ; but if the act complained 
 of is permanent in its nature, prospective damages are recoverable in 
 the first action, and the first judgment will therefore be a bar {Schlitz 
 Brewing Co. v. Compton, 142 111. 511 ; Ulinev.N. Y. Cent. R. Co., 
 101 N. Y. 98; Bizerv. Ottumwa Co.,yo la. 145). (c) A decision upon 
 one writ of habeas corpus, refusing to discharge a prisoner, does not 
 bar the issuing of another writ by another court or officer {Bradley v. 
 Beetle, 153 Mass. 154 ; In re Snell, 31 Minn, no ; People v. Brady, 56 
 N. Y. 182); aliter,a.s to a decision discharging the prisoner on the same 
 state of facts ( Weir v. Marley, 99 Mo. 484 ; McConologue's Case, 107 
 Mass. 154), and as to a decision determining the right to the custody 
 of an infant child. Mercein v. People, 25 Wend. 64 ; State v. Bechdel, 
 37 Minn. 360.] 
 
 X R. v. Hutchins, 5 Q. B. D. 353, supplies a recent illustration of this 
 principle. [Cf. Putnam v. Clark, 34 X. J. Eq. 532 ; Maybee v. Avery, 
 18 Johns. 352 ; Quinn v. Quinn, 16 Vt. 426.] 
 
 2 R. v. Hartington Middle Quarter, 4 E. & B. 780 ; and see Flitters 
 v. Allfrey, L. R. 10 C. P. 29 ; and contrast Dover v. Child, 1 Ex. D. 
 172 ; [see Bethlehem v. Watertown, 47 Ct. 237.] 
 
 3 Barrs v. Jackson, 1 Phi 11. 582, 587, 588 ; [see Caujollev. Ferrie, 13 
 Wall. 465 ; White v. Weatherbee, 126 Mass. 450.]
 
 124 A DIGEST OF [Part I. 
 
 (c) A company sues A for unpaid premium and calls. A special 
 case being stated in the Court of Common Pleas, A obtains judgment 
 on the ground that he never was a shareholder. 
 
 The company being wound up in the Court of Chancery, A applies 
 for the repayment of the sum he had paid for premium and calls. 
 The decision that he never was a shareholder is conclusive as between 
 him and the company that he never was a shareholder, and he is 
 therefore entitled to recover the sums he paid. 1 
 
 (d) A obtains a decree of judicial separation from her husband B, 
 on the ground of cruelty and desertion, proved by her own evidence. 
 
 Afterwards B sues A for dissolution of marriage on the ground of 
 adultery, in which suit neither B nor A can give evidence. A charges 
 B with cruelty and desertion. The decree in the first suit is deemed 
 to be irrelevant in the second. 2 
 
 (e) [A sues B to recover damages for the conversion of some bed- 
 quilts and obtains judgment. 
 
 This judgment defeats a recovery in a subsequent action for the 
 conversion of a bed which was taken by B at the same time with the 
 quilts.] 3 
 
 {/) [A sues B for the conversion of a derrick and by mistake omits 
 to allege and claim certain special damages which resulted from the 
 conversion. He recovers judgment for the value of the derrick. 
 
 This judgment bars a subsequent action by A to recover these 
 special damages.] 4 
 
 (g) [B owes A, upon a running account for meat bought from time 
 to time during ten months, $160. A sues B for gioo and recovers 
 judgment. 
 
 This judgment bars a subsequent action by A for the remaining 
 $60.] 5 
 
 1 Bank of Hindustan, etc., Allison s Case, L. R. 9 Ch. App. 24. 
 
 2 Stoate v. Stoate, 2 S. & T. 223 ; both would now be competent wit- 
 nesses in each suit. [See Woodruff \. Woodruff, 11 Me. 475 ; Bradley 
 v. Bradley, id. 367.] 
 
 3 [Farrington v. Payne, 15 Johns. 432; S. P. McCaffrey v. Carter, 
 
 125 Mass. 330; Funk v. Funk, 35 Mo. App. 246; cf. Brunsden v. 
 Humphrey, 14 Q. B. D. 141 ; Bliss v. A r . Y. Cent. R. Co., 160 Mass. 
 
 447. 455-1 
 
 4 [Sullivan v. Baxter, 150 Mass. 261.] 
 
 6 \Memmer v. Carey, 30 Minn. 458 ; Coal Co. v. Brick Co., 52 Kan. 
 747 ; Stevens v. Lockwood, 13 Wend. 614 ; contra, Badger v. Titcofnb, 
 15 Pick. 409 ; cf. Secor v. Sturgis, 16 X. Y. 548.]
 
 Chap. IV.] THE LAW OF EVIDENCE. 125 
 
 (//) [B, A's tenant, has agreed to pay rent monthly in advance. 
 When twenty-five months' rent ^s in arrear, A brings one action 
 against B for the rent of the first twenty-four months, and another 
 action for that of the last month. This action for a month's rent is 
 tried first and A recovers judgment. 
 
 This judgment bars the maintenance of the action for the twenty- 
 four months' rent.] ' 
 
 (z) [A, a physician, sues B, his patient, in a justice's court to recover 
 the value of his medical services, and upon B's default to appear and 
 contest the action, recovers judgment. 
 
 B afterwards sues A in a superior court to recover damages for 
 malpractice in rendering said services. The former judgment is con- 
 clusive in bar of the action. The alleged malpractice being incon- 
 sistent with the claim that the physician's services were of any value, 
 it follows that the former judgment, determining that they did have 
 value, bars the action for malpractice. B might have proved the 
 malpractice in the first suit to prevent the recovery of judgment by 
 the physician.] ' 2 
 
 00 [A sues B on a promissory note, and the suit not being defended, 
 enters judgment for its full face value, without crediting B with a 
 payment already made thereon. This judgment bars a subsequent 
 action by B to recover the amount of said payment.] 3 
 
 {k) [A sues B, his wife, for divorce on the ground of desertion. 
 Upon a prior petition by B against A for separate maintenance, it was 
 decreed that B's living apart from A was for justifiable cause. 
 
 This decree bars the action for divorce.] 4 
 
 1 \Burritt v. Belfy, 47 Ct. 323 ; see Whitaker v. Haivley, 30 Kan. 
 317 ; Reformed Dutch Church v. Brown, 54 Barb. 191. The authori- 
 ties are not in accord as to whether a judgment for an instalment of 
 interest upon a note, after the principal is due, bars a subsequent ac- 
 tion for the principal. Dulancy v. Payne, 101 111. 325.] 
 
 2 [Blair v. Bartlett, 75 N. Y. 150 ; Bell v. Merrifield, 109 N. Y. 202, 
 210 ; S. P. Dunham v. Bower, JJ N. Y. 76 ; contra, Ressequie v. Byers, 
 52 Wis. 650 ; Sykes v. Bonner, 1 Cine. (O.) 464 ; see Goble v. Dillon, 
 86 Ind. 327 ; Lawson v. Conaway, 37 W. Va. 159 ; Howell v. Goodrich, 
 69 111. 556 ; Haynes v. Ordway, 58 X. H. 167 ; Schopen v. Baldwin, 83 
 Hun, 234.] 
 
 3 [Binck v. Wood, 43 Barb. 315 ; Greenabaimi v. Elliott, 60 Mo. 25 ; 
 Fuller v. Shattuck, 13 Gray, 70 ; Litch v. Clinch, 136 111. 410 ; but see 
 Lent v. N. Y. £-= M. R. Co., 130 N. Y. 504.] 
 
 4 [Miller v. Miller, 150 Mass. in.]
 
 126 A DIGEST OF [Part I. 
 
 (/) [An assignee in bankruptcy sued several defendants to de- 
 termine the title to certain goods, and it was adjudged that the title 
 was in him. One of these defendants, who claimed title in himself 
 and had put it in issue in this suit, afterwards sued another of them to 
 recover the same goods. 
 
 The judgment in the first suit is conclusive against the right to re- 
 cover in the second.] x 
 
 (/;/) [A sues B for the conversion of goods which are a part of those 
 included in a certain bill of sale given by C to B, and A recovers 
 judgment on the ground that the bill of sale is fraudulent and void. 
 B afterwards sues A for the residue of the goods covered by the bill 
 of sale. 
 
 The former judgment is deemed conclusive upon the question of 
 fraud, and defeats B's recovery.] 2 
 
 (n) [A sues B to recover the price of goods sold and obtains judg- 
 ment. 
 
 Afterwards A sues B to recover damages for fraud in obtaining a 
 credit for the goods. The former judgment defeats recovery.] 3 
 
 Article 42. 
 
 statements in judgments irrelevant as between strangers, 
 except in admiralty cases. 
 
 Statements contained in judgments as to the facts upon 
 which the judgment is based are deemed to be irrelevant 
 as between strangers, or as between a party or privy and 
 a stranger, 4 except 5 in the case of judgments of courts of 
 
 1 \Tuska v. O'Brien, 68 N. Y. 446.] 
 
 ■ [Doty v. Brown, 4 N. Y. 71; see Wilson's Excr. v. Deen, 121 U. S. 
 525 ; Strauss v. Meertief, 64 Ala. 299.] 
 
 a [Cay /us v. N. Y. etc. R. Co., 76 N. Y. 609. It is a general rule that 
 a prior recovery will bar a subsequent action for the same claim, though 
 the forms of action be entirely different. Gr. Ev. i. §§ 532, 533 ; Walsh 
 v. Chesapeake, etc. R. Co., 59 Md. 423 ; Rendall v. School Dist., 75 Me. 
 358 ; Bradley v. Brigham, 149 Mass. 141.] 
 
 4 [Campbell v. Hall, 16 N. Y. 575 ; Railroad Co. v. Nat. Bk., 102 U. 
 S. 14 ; Jones v. Vert, 121 Ind. 140 ; Wing v. Bishop, 3 Allen, 456.] 
 
 5 [This exception is treated by Lord Eldon as an objectionable anom- 
 aly in Lothian v. Henderson, 3 B. & P. 545- See, too, Castrique v.
 
 Chap. IV.] THE LAW OF EVIDENCE. 127 
 
 admiralty condemning a ship as prize. 1 In such cases the 
 judgment is conclusive proof as against all persons of the 
 fact on which the condemnation proceeded, where such 
 fact is plainly stated upon the face of the sentence. 
 
 Illustrations, 
 (a) The question between A and B is, whether certain lands in Kent 
 had been disgavelled. A special verdict on a feigned issue between 
 C and D (strangers to A and B), finding that in the 2d Edw. VI. a dis- 
 gavelling act was passed in words set out in the verdict, is deemed to 
 be irrelevant. 2 
 
 Imrie, L. R. 4 E. & I. App. 434-5. [See Brigham v. Fayerweather, 
 140 Mass. 411.] 
 
 1 [A judgment of a court of admiralty condemning a ship as prize, 
 or of any competent court condemning property under laws of forfeit- 
 ure, belongs to the class of judgments commonly called judgments 
 in rem. It is a general rule that such judgments are conclusive, not 
 only as to parties and privies, but even as to all the world (Gelston v. 
 Hoyt, 13 Johns. 561, 3 Wheat. 246; Shores v. Hooper, 153 Mass. 228, 
 233 ; Brigham v. Fayerweather, 140 Mass. 411, 413 ; Risley v. Phenix 
 Bk., 83 N. Y. 318, 332). Decisions as to personal status, viz., marriage, 
 divorce, bastardy, etc., are often included in the same category (Gr. 
 Ev. i. §§ 525, 541-546; McClurgv. Terry, 21 N. J. Eq. 225 ; see Art. 
 40, Illustration (/), ante). But an adjudication as to personal status 
 may, in some cases, only be effectual within the limits of the State 
 in which the decision is rendered {People v. Baker, 76 N. Y. 78 ; Wh. 
 Ev. ii. §§ 815-818; cf. Bishop, M. D. & S. ii. §§ 150-158). So attach- 
 ment suits against non-residents are in the nature of actions in rem, 
 the property attached being the res {Pennoyer v. Neff, 95 U. S. 714 ; 
 McKinncy v. Collins, 88 N. Y. 216). This general doctrine as to judg- 
 ments in rem is virtually included in Article 40, supra. See Appendix, 
 Note XXIII. 
 
 The English rule stated in this Article, that the judgment of con- 
 demnation is conclusive, not only as to title but also as to the grounds 
 of condemnation stated therein, is upheld also in some American 
 courts (Croudson v. Leonard, 4 Cr. 434 ; Baxter v. New Fug. /us. Co., 
 6 Mass. 277 ; see Citshing v. Laird, 107 U. S. 69, 80 ; Brigham v. 
 Fayerweather, 140 Mass. 411,413). But in New York it is only prima 
 facie evidence of such facts, and in a collateral action such evidence 
 may be rebutted. Dnrant v. Abendroth, 97 N. Y. 132, 141.] 
 
 - Doe v. Brydges, 6 M. & G. 282.
 
 128 A DIGEST OF [Part I. 
 
 {b) The question is, whether A committed bigamy by marrying B 
 during the lifetime of her former husband C. 
 
 A decree in a suit of jactitation of marriage, forbidding C to claim 
 to be the husband of A, on the ground that he was not her husband, 
 is deemed to be irrelevant. 1 
 
 (c) The question is, whether A, a shipowner, has broken a warranty 
 to B, an underwriter, that the cargo of the ship whose freight was in- 
 sured by A was neutral property. 
 
 The sentence of a French prize court condemning ship and cargo, 
 on the ground that the cargo was enemy's property, is conclusive proof 
 in favor of B that the cargo was enemy's property', (though on the facts 
 the court thought it was not). 2 
 
 (d) [The question is, whether A or C is rightfully entitled to hold a 
 public office. 
 
 A judgment in a previous action between A and B to determine the 
 title to the same office, in which it was declared that A had the rightful 
 title, is deemed to be irrelevant as against C] 3 
 
 Article 43. 
 effect of judgment not pleaded as an estoppel. 
 
 If a judgment is not pleaded by way of estoppel, it is as 
 between parties and privies deemed to be a relevant fact, 
 whenever any matter which was or might have been de- 
 cided 4 in the action in which it was given is in issue, or 
 is or is deemed to be relevant to the issue, in any sub- 
 sequent proceeding. 
 
 Such a judgment is conclusive proof of the facts which 
 it decides, or might have decided, 4 if the party who gives 
 evidence of it had no opportunity of pleading it as an 
 estoppel. 5 
 
 1 Duchess oj Kingston s Case, 2S. L.C.760; [see William s\. Williams, 
 3 Barb. Ch. 628.] 
 
 2 Geyer v. Aguilar, 7 T. R. 681 ; [see p. 127, note 1, ante.'] 
 
 3 [People v. Murray, 73 N. Y. 535.] 
 
 * [That a judgment is conclusive as to what "might have been de- 
 cided," see p. 120, note 2, ante.] 
 5 [It is held in a number of the States of this country that a judg-
 
 Chap. IV.] THE LAW OF EVIDENCE. 129 
 
 Illustrations. 
 
 (a) A sues B for deepening the channel of a stream, whereby the 
 flow of water to A's mill was diminished. 
 
 A verdict recovered by B in a previous action for substantially the 
 same cause, and which might have been pleaded as an estoppel, is 
 deemed to be relevant, but not conclusive in B's favor. 1 
 
 (b) A sues B for breaking and entering A's land, and building 
 thereon a wall and a cornice. B pleads that the land was his, and. 
 obtains a verdict in his favor on that plea. 
 
 Afterward B's devisee sues A's wife (who on the trial admitted that 
 she claimed through A) for pulling down the wall and cornice. As 
 the first judgment could not be pleaded as an estoppel (the wife's 
 right not appearing on the pleadings), it is conclusive in B's favor 
 that the land was his.- 
 
 ment is equally conclusive when given in evidence, as if pleaded, 
 even though there was an opportunity to plead it {Chamberlain v. 
 Carlisle, 26 N. H. 540 ; Westcott v. Edmunds, 68 Pa. 34 ; Tray hem v. 
 Colburn, 66 Md. 277 ; So. Pac. R. Co. v. U. S., 168 U. S. 1 ; see Foye v. 
 Patch, 132 Mass. 105 ; Plain v. Plain, 45 Vt. 538 ; Sheldon v. Patterson, 
 55 111= 507) ; so also as to a foreign judgment ( Whiting v. Purge/; 78 
 Me. 287). But in many States a statutory rule requires that special 
 defences (under which the defence of " estoppel by former recovery" 
 is ordinarily included) be specially pleaded, if there is an opportunity 
 so to do, in order that evidence thereof shall be admissible ; when so 
 pleaded and proved the judgment is conclusive ; so also if it is proved 
 in cases where there was no opportunity to plead it (Panning v. Hiber- 
 nia Ins. Co., 37 O. St. 344 ; Meiss v. Gill, 44 O. St. 253 ; Piercy v. 
 Sabin, 10 Cal. 22 ; IVixson v. Devine, 67 Cal. 341 ; Howe v. Minnesota 
 Milk Ci?.,44Minn. 460 ; Pays v. Trulsgn,2$ Or. 109; Prazillx. Isham, 
 12 N. Y. 9; Gregory x. Kcnyon, 34 Neb. 640; Porter v. Leache, 56 
 Mich. 40). But where a judgment is sought to be used, not by way of 
 estoppel or bar to the action, but as evidence of a material fact in 
 issue, it may be given in evidence without being specially pleaded. 
 Krekeler v. Ritter, 62 N. Y. 372 ; Swank v. St. Paul R. Co., 61 Minn. 
 
 423-] 
 
 1 Vooght x. Winch, 2 B. & A. 662 ; and see Feversham x. Emerson, 
 11 Ex. 391. [See Plate v. X. Y. C. R. Co., 37 N. Y. 472 ; Powyer v. 
 Schofield, 1 Abb. Dec. 177; Newell x. Carpenter, 118 Mass. 411.] 
 
 • JVhitaker v. Jackson, 2 H. & C. 9?* This hari previously been 
 doubted. See 2 Ph. Ev. 24, note 4.
 
 i 3 o A DIGEST OF [Part I. 
 
 Article 44. 
 judgments generally deemed to be irrelevant as 
 
 BETWEEN STRANGERS. 
 
 Judgments are not deemed to be relevant as rendering 
 probable facts which may be inferred from their existence, 
 but which they neither state nor decide — 
 
 as between strangers ; ' 
 
 as between parties and privies in suits where the issue 
 is different, even though they relate to the same occur- 
 rence or subject-matter ; 2 
 
 or in favor of strangers against parties or privies. 3 
 
 1 [Gr. Ev. i. §§ 522, 523 ; Bartlett v. Boston Gas Co., 122 Mass. 209; 
 Schrauth v. Dry Dock Bk., 86 N. Y. 390 ; see p. 126, note 4, ante.] 
 
 2 [Gr. Ev. i. §§ 532, 533 ; Bell v. Merrifield, 109 N. Y. 202 ; Coleman s 
 Appeal, 62 Pa. 252 ; Russell v. Place, 94 U. S. 606 ; Norton v. Huxley, 
 13 Gray, 285 ; see Illustrations (ca), {cb). So a judgment is not binding 
 on the parties as to matters not passed upon, though they are stated 
 in the complaint {Sweety. Tuttle, 14 N. Y. 465), or are given in evi- 
 dence (see Illustration (cc) ; Belden v. State, 103 N. Y. 1), or are im- 
 properly set up by way of counterclaim {People v. Denison, 84 N. Y. 
 272); nor as to matters which the judgment does affirm, but which are 
 immaterial to the issue and not actually in controversy ( Whitney v. 
 Marshall, 138 Ind. 472 ; House v. Lockzuood, 137 N. Y.259 ; Concha v. 
 Concha, 1 1 App. Cas. 541 ; Munday v. / 'ail, 34 N. J. L. 418); nor as to 
 matters which are only incidentally cognizable, or to be inferred by 
 argument from the judgment (Gr. Ev. i. § 528 ; Hopkins v. Lee, 6 
 Wheat. 109 ; Schwan v. Kelly, 173 Pa. 65 ; Kitson v. Farwell, 132 111. 
 527 ; Burlen v. Shannon, 99 Mass. 200) ; nor is a judgment against a 
 party as an individual binding on him in a suit wherein he appears in 
 a representative capacity {Collins v. Hydorn, 135 X. Y. 320 ; Lander \. 
 A mo, 65 Me. 26). A party sought to be bound by a former judgment 
 must have been a party to both actions in the same character or 
 capacity (Stale v. Branch, 134 Mo. 592; Fuller v. Metropolitan Ins. 
 Co. ,68 Ct 55 ; Kitts v. Willson, 140 Ind. 604). A judgment against an 
 administrator in one State is no evidence of debt in a subsequent ac- 
 Uon in another State against an administrator of the same decedent. 
 Johnson v. Powers, 139 U. S. 156; McGarveyv. Darnall, 134 111. 367.] 
 
 3 [Burdick v. Norwich, 49 Ct. 225 ; Bissill v. Kellogg, 65 X. Y. 432 ;
 
 Chap. IV.] THE LAW OF EVIDENCE. 131 
 
 But a judgment is deemed to be relevant as between 
 strangers : 
 
 (1) if it is an admission, 1 or 
 
 (2) if it relates to a matter of public or general interest, 
 so as to be a statement under Article 30.* 
 
 Illustrations. 
 
 (a) The question is, whether A has sustained loss by the negligence 
 of B, nis servant, who has injured C's horse. 
 
 A judgment recovered by C against A for the injury, though con- 
 clusive as against B as to the fact that C recovered a sum of money 
 from A, is deemed to be irrelevant to the question whether this was 
 caused by B's negligence. 3 
 
 (ab) [B unlawfully creates an obstruction in the street of a city, and 
 A, being injured thereby, sues the city for damages. The city gives 
 notice to B to defend the action, and that he will be liable for the 
 
 Stamp v. Franklin, 144 N. Y. 607 ; see Phillips v. Jamieson, 51 Mich. 
 153. But a judgment against one of two or more joint tortfeasors, if 
 followed by satisfaction (not otherwise), is available to bar a suit against 
 another (Knapp v. Roche, 94 N. Y. 329 ; Roodhouse v. Christian, 158 
 111. 137 ; The Beaconsfield, 158 U. S. 303 ; Cleveland v. Bangor, 87 Me. 
 259 ; Savage v. Stevens, 128 Mass. 254 ; Seilherv. Phila. Traction Co., 
 125 Pa. 397); and the rule is the same as to a judgment against one of 
 two or more persons jointly and severally liable on contract (Sawyer 
 v. White, 19 Vt. 40); but judgment against one of two or more joint 
 contractors bars an action against the others, unless they were out of 
 the jurisdiction so that they could not be served with process. Kings- 
 ley v. Davis, 104 Mass. 178 ; Russell v. McCall, 141 N. Y. 437, 450; 
 Yoho v. McGovern, 42 O. St. 11; Kendall v. Hamilton, 4 App. Cas. 
 504; cf. IVegg Prosserx. Evans, [1895] 1 Q. B. 108.] 
 
 1 [Gr. Ev. i. § 527 a ; Rudolph v. Landwerlen, 92 Ind. 34 ; St. Louis 
 Ins. Co. v. Cravens, 69 Mo. 72 ; Parks v. Mosher, ji Me. 304, holding 
 it open to explanation ; sec Clark v. Dillon, 97 N. Y. 370.] 
 
 - [See Patterson v. Games, 6 How. (U. S.) 550, 599 ; People v. Buck- 
 laud, 13 Wend. 594.] 
 
 3 Green v. New River Company, 4 T. R. 589. [Bank 0/ Oswego v. 
 Babcock, 5 Hill, 152 ; Grand Trunk R. Co. v. Latham, 63 Me. 177; 
 Oceanic Nav. Co. v. Compania, 134 N. Y. ^61: Drummondv Prest- 
 man, 12 Wheat. 515 ; see next note.]
 
 132 A DIGEST OF [Part I. 
 
 amount recovered. B does not defend the action, and A recovers 
 judgment. 
 
 In a suit afterwards brought by the city against B for indemnity, the 
 prior judgment is conclusive evidence against B of the city's liability 
 to A, of the amount of damages recoverable, and that the injury was 
 not caused by any default on A's part ; but is not competent to prove 
 that the injury was caused by B's negligence, which must therefore be 
 shown.] ' 
 
 1 [City of Rochester-*. Montgomery, ~i X. Y. 65 ; Robbins v. CJiicago, 
 4 Wall. 657, 2 Black, 418; Brookville v. Arthurs, 130 Pa. 501; St. 
 Joseph v. Union R. Co., 1 16 Mo. 636 ; Boston v. Worthington, 10 Gray, 
 496 ; cf. Mayor v. Brady, 151 N Y. 611 ; Portland v. Richardson, 54 
 Me. 46. The notice need not be express {Village of Port Jervisv. 
 First Nat. Bk., 96 N. Y. 550). 
 
 The same principle applies in other cases where one party is prima- 
 rily liable, but has a remedy over against another to obtain indemnity 
 [Heiserv. Hatch, 86 X. Y. 614 ; Carleton v. Lombard, 149 X. Y. 137, 
 152 ; Hoppaugh v. McGrath, 53 X. J. L. 81 ; Davis v. Smith, 79 Me. 
 351 ; Chicago, etc. R. Co. v. Packet Co., 70 111. 217). As a general 
 rule, a judgment against a principal is not binding upon his surety 
 (though it may be used to prove the fact of its recovery), unless the 
 latter agreed to indemnify against the results of the suit, or unless he 
 had notice and opportunity to defend {Thomas v. Hubbcll, 15 X. Y. 
 405 ; Grammes v. St. Paul Trust Co., 147 111. 634 ; Ball v. Chancellor, 
 47 X. J. L. 125 ; cf. Giltinan v. Strong, 64 Pa. 242). But sureties upon 
 official bonds, as administrators' bonds, sheriffs' bonds, etc., are often 
 held- concluded by such judgments (in the absence of fraud or collu- 
 sion), though they had no notice, such being deemed the obligation 
 of their contracts (Harrison v. Clark, 87 X. Y. 572 ; Wheeler v. Sweet, 
 137 X. Y. 435 ; Tute v. James, 50 \'t. 124 ; McMicken x. Comm., 58 Pa. 
 213 ; Stovall v. Banks, 10 Wall. 583 ; Nevitt v. Woodburn, 160 111. 203; 
 'Tracy v. Goodwin, 5 Allen, 409 ; cf. New Haven x. Chidsey, 68 Ct. 
 397). In some States, however, a judgment against a principal in an 
 official bond is only prima facie evidence against the sureties (Beau- 
 chaine x. McKinnon, 55 Minn. 318; Norris x. Mersereau, 74 Mich. 687; 
 Stephens v. Shafer, 48 Wis. 54 ; cf. Moses x. United Stales, 166 U. S. 
 571). As to the different kinds of indemnity contracts and the neces- 
 sity of giving notice, see Bridgeport Bis. Co. v. Wilson, 34 X. Y. 275, 
 280 ; cf. Konitsky x. Meyer, 49 X. Y. 571. 
 
 A judgment recovered by the holder of a bill or note against an 
 indorser does not, unless it has been satisfied, bar an action against 
 the acceptor or maker. Gilmore v. Ca*~~** Ma?" ,7 i; Ra*'lr~id Co. 
 x. Xat. Bk., 102 U. S. 14. ]
 
 Chap. IV.] THE LAW OF EVIDENCE. 133 
 
 (b) The question whether a bill of exchange is forged arises in an 
 action on the bill. The fact that A was convicted of forging the bill 
 is deemed to be irrelevant. 1 
 
 (c) A collision takes place between two ships, A and B, each of 
 which is damaged by the other. 
 
 The owner of A sues the owner of B, and recovers damages on the 
 ground that the collision was the fault of B's captain. This judgment 
 is not conclusive in an action by the owner of B against the owner of 
 A, for the damage done to B. 2 {Semble, it is deemed to be irrelevant.) :: 
 
 (ca) [A recovers damages from B for a wrongful dismissal from B's 
 employment before the term of service had expired. 
 
 This judgment does not preclude a recovery by A in a subsequent 
 action of the sum due for wages during the time he was actually em- 
 ployed, and payable before the dismissal.] 4 
 
 (cb) [The will of A is duly admitted to probate by a surrogate's court 
 having competent jurisdiction. 
 
 A's widow afterwards brings action for the admeasurement of her 
 dower. 
 
 The surrogate's record of probate of A's will is not deemed to be 
 relevant to prove A's death.] 5 
 
 (cc) [A sues B to recover the value of board furnished to B's wife, 
 and recovers judgment; but the judgment does not state whether it is 
 rendered (1) because B's wife had left him on account of his cruelty, 
 or (2) because she was absent from him on his credit by his consent. 
 Evidence to support both grounds was given on the trial. 
 
 A afterwards sues B to recover board for a subsequent period, and 
 
 1 Per Blackburn, J., in Castrique v. Imrie, L. R. 4 E. & I. App. 434. 
 [Gr. Ev. i. § 537 ; Corbley v.Wilson, 71 111. 209 ; People v. Kenyon, 93 
 Mich. 19 ; State v. Bradnack, 69 Ct. 212 ; see Mutual Ins. Co. v. Tis- 
 dale, 91 U. S. 238, 244 ; Willson v. Manhattan R. Co., 2 Misc. 127, 144 
 N. Y. 632 ; Harger v. Thomas, 44 Pa. 128.] 
 
 2 The Calypso, 1 Swab. Ad. 28. 
 
 3 On the general principle in Duchess of Kingston's Case, 2 S. L. C. 
 813. 
 
 4 [Perry v. Bickerson,Ss N. Y. 345; cf. Ohnstead v. Bach.jS Md. 
 I32-] 
 
 "[Carroll v. Carroll, 60 N. Y. 121; S. P. Mutual Ins. Co. v. Tisdale, 
 91 U. S. 238 ; cf. Matter of Patteson, 146 N. Y. 327 ; Pick v. Strong, 26 
 Minn. 303 ; Kearne^ v. Venn, 15 Wall. 51 : Bn>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 
 
 (<?) A sues B, a carrier, for goods delivered by A to B. 
 
 A judgment recovered by B against a person to whom he had deliv- 
 ered the goods, is deemed to be relevant as an admission by B that he 
 had them. 3 
 
 (/) A sues B for trespass on land. 
 
 A judgment, convicting A for a nuisance by obstructing a highway 
 on the place said to have been trespassed on, is (at least) deemed to 
 be relevant to the question whether the place was a public highway 
 (and is possibly conclusive). 4 
 
 Article 45. 
 
 judgments conclusive in favor of judge. 
 
 When any action is brought against any person for 
 anything done by him in a judicial capacity, the judg- 
 ment delivered, and the proceedings antecedent thereto, 
 
 1 \Thtrlcn v. Shannon, 14 Gray, 433 ; cf. Lewis v. Ocean Nav. Co., 
 125 N. V. 341.] 
 
 '•' Semble from R. v. Turner, 1 Moo. C. C. 347. [In this country it is 
 generally held that the judgment against A is admissible in such a 
 case, and is prima facie evidence of A's guilt, but not conclusive. B 
 may, therefore, controvert it. Levy v. People, 80 N. Y. 327 ; State v. 
 Mosley, 31 Kan. 355 ; Anderson v. State, 63 Ga. 675 ; State v. Glcim, 
 17 Mont. 17 ; Bishop, New Cr. Pro. ii. § 12 ; cf. Comm. v. Elisha, 3 
 Gray, 460 ; Jones v. People, 20 Hun, 545, 81 N. Y. 637.] 
 
 3 Buller, N. P. 242, b. 
 
 4 Petrie v. Nutlall, 1 1 Ex. 569.
 
 Chap. IV.] THE LAW OF EVIDENCE. 135 
 
 are conclusive proof of the facts therein stated, whether 
 they are or are not necessary to give the defendant juris- 
 diction, if, assuming them to be true, they show that he 
 had jurisdiction. 
 
 Illustration. 
 
 A sues B (a justice of the peace) for taking from him a vessel and 
 500 lbs. of gunpowder thereon. B produces a conviction before him- 
 self of A for having gunpowder in a boat on the Thames (against 2 
 Geo. III. c. 28). 
 
 The conviction is conclusive proof for B, that the thing called a boat 
 was a boat. 1 
 
 Article 46. 
 fraud, collusion, or want of jurisdiction may be proved. 
 
 Whenever any judgment is offered as evidence under 
 any of the Articles hereinbefore contained, the party 
 
 1 Brittain v. Kinnaird, 1 B. & B. 432. [People v. House of Mercy, 
 133 N. Y. 207 ; People v. N. Y. Protectory, 106 N. Y. 604 ; see Harman 
 v. Brotherson, 1 Den. 537 ; People v. Collins, 19 Wend. 56, 62 ; Udells 
 v. Stevens, 2 Gray, 115,1 19. It is stated as a general rule (not limited 
 to actions against judges) that when the jurisdiction of a court depends 
 upon a fact which the court is required to ascertain and determine in 
 its decision, such decision is final, until reversed or vacated in a diiect 
 proceeding for that purpose (Otis v. The Rio Grande, 1 Woods, 279; 
 Cotton v. Beardsley, 38 Barb. 29, 51 ; Ex parte Sternes, 77 Cal. 156; 
 Dyckman v. Mayor of N. Y., 5 N. Y. 434, 440 ; see Austin v. Vrooman, 
 128 N. Y. 229 ; Bolton v. Shriever, 135 N. Y. 65), and will protect all 
 persons acting upon it in good faith. But in other cases in which some 
 fact must exist to give jurisdiction, a court or judicial officer cannot 
 acquire jurisdiction simply by deciding that such fact exists ; the 
 proceeding is a nullity, and its invalidity maybe shown in a collateral 
 proceeding (Roderigas v. East River Sav. Inst., 63 N. Y. 460, 464 ; 
 Scott v. McNeal, 154 U. S. 34 ; People v. Bd. of Health, 140 N. Y. 1 ; 
 Miller v. Amsterdam, 149 N. Y. 288; see McLean v. Jephson, 123 
 N. Y. 142). The distinction between the two classes of cases is con- 
 sidered in People s Sav. Bk. v. Wilcox, 15 R. I. 258, and Noble v. 
 Union Riv. R. Co., 147 U. S. 165, 173.]
 
 136 A DIGEST OF [Part 1. 
 
 against whom it is so offered may prove that the court 
 which gave it had no jurisdiction, 1 or that it has been 
 
 1 [On the ground that " a record imports absolute verity," it is a gen- 
 erally received common law doctrine in this country that while the 
 judgment of a domestic court of general jurisdiction, acting in the 
 scope of its general powers, may be avoided by a party or privy in a 
 collateral proceeding for lack of jurisdiction apparent on the face of 
 the record itself, yet that it cannot be so impeached when the recitals 
 of the record show that the court had jurisdiction (Blaisdell v. Pray, 
 68 Me. 269 ; Finneran v. Leonard, 7 Allen, 54 ; Cuh'er's Appeal, 48 
 Ct. 165, 173; McCahill v. Equitable Assur. Soc, 26 N. J. Eq. 531 
 Frankel v. Satterfield, 9 Houst. 201 ; Adams v. Cowles, 95 Mo. 501 
 Sandwich Co. v. Earl, 56 Minn. 390 ; Hill v. City Cab Co., 79 Cal. 188 
 People v. Seelye, 146 111. 189; Harman v. Moore, 112 Ind. 221 ; Wall 
 v. Wall, 123 Pa 545) ; nor when the record fails to recite facts show- 
 ing jurisdiction, for then, as to such courts, jurisdiction is presumed 
 (Galpin v. Page, 18 Wall. 350; Bateman v. Miller, 118 Ind. 345; 
 McClanahan v. West, too Mo. 309; In re Eickhoff, 101 Cal. 600). 
 But there has been much diversity of opinion as to the doctrine that 
 such a record cannot be impeached collaterally when its recitals 
 show jurisdiction or are silent on the point {Ferguson v. Crawford, 70 
 N. Y. 253, 86 N. Y. 609 ; Martin v. Gray, 19 Kan. 458 ; In re Watson, 
 30 Kan. 753 ; Frankel v. Satterfield, supra). Judgments of inferior 
 courts, or of courts of limited jurisdiction, or even of courts of general 
 jurisdiction acting in the exercise of special statutory powers not ac- 
 cording to the course of the common law, may, however, be attacked 
 collaterally, as a general rule, for lack of jurisdiction ; the jurisdiction 
 of such courts is not presumed, but must be affirmatively made to 
 appear (Id.; Coit v. Haven, 30 Ct. 190 ; Galpin v. Page, supra ; People 
 v. Warden, 100 N. Y. 20; Fahey v. Mottu, 67 Md. 250; Richardson 
 v. Seevers, 84 Ya. 259 ; Furgeson v. Jones, 17 Or. 204 ; Smith v. Claus- 
 tneier, 136 Ind. 120; State v. Mobile, etc. R. Co., 108 Ala. 31 ; but see 
 Hahn v. Kelly, 34 Cal. 391). The States differ, however, to some 
 extent, in classifying courts as superior or inferior under these rules. 
 Thus generally a court of a justice of the peace is ranked as an inferior 
 court ( Turner v. Roby, 3 N. Y. 193; Fahey v. Mottu, 67 Md. 250; Clay- 
 born v. Tompkins, 141 Ind. 19), but in some States it is classed with 
 the superior courts {Hendrick v. Whittemore, 105 Mass. 23, 28). So 
 probate courts or orphans' courts are of limited jurisdiction in some 
 States {Fowle v. Coe, 63 Me. 245; Peoples Sav. Bk. v. Wilcox, 15 
 R. I. 258; Sears v. Terry, 26 Ct. 273; cf. Smith v. Wild man, 178 Pa. 
 245), but in others of superior jurisdiction (J/accyv. Stark, 116 Mo.
 
 Chap. IV.] , THE LAW OF EVIDENCE. 137 
 
 reversed, 1 or, if he is a stranger to it, that it was obtained 
 by any fraud or collusion, 2 to which neither he nor any 
 person to whom he is privy was a party. 3 
 
 If an action is brought in an English court to enforce 
 the judgment of a foreign court, and probably if an action 
 
 481 ; State v. Mobile, etc. R. Co., 108 Ala. 29, 39 ; Bolton v. Schriever, 
 135 N. Y. 65 ; Clark v. Costello, 59 N. J. L. 234). 
 
 These rules as to questioning jurisdiction are subject to the limita- 
 tion set forth in Article 45, note 1 {Noble v. Union Riv. R. Co., 147 
 U. S. 165). 
 
 In some States, however, in which equitable defences are allowed 
 in legal actions, fraud in acquiring jurisdiction may be interposed as 
 a defence against the judgments of even the higher courts, notwith- 
 standing this contradicts the record {Ferguson v. Crawford, supra-; 
 Clark v. Little, 41 la. 497 ; Hogg v. Link, 90 Ind. 346 ; see Morrill v. 
 Morrill, 20 Or. 96). 
 
 As to all courts, it is a general rule that their judgments cannot be 
 impeached collaterally by parties or privies for error or irregularity. 
 Comstock v. Crawford, 3 Wall. 396 ; Weiss v. Guerinean, 109 Ind. 
 438; Caulfeldv. Sullivan, 85 N. Y. 153.] 
 
 1 [Smit/i v. Frankfield, jj N. Y. 414 ; Clodfelter v. Hulett, 92 Ind. 
 426. While an appeal from a judgment is pending, the judgment 
 still operates as an estoppel {Parkhurst v. Berdell, no N. Y. 386; 
 Smith v. Schreiner, 86 Wis. 19 ; Moore v. Williams, 132 111. 589). 
 But in some States the .contrary rule prevails. Harris v. Barnhart, 
 97 Cal. 546 ; Sherman v. Dilley, 3 Nev. 21.] 
 
 2 [A stranger but not a party, may avoid a judgment collaterally for 
 fraud {Ogle v. Baker, 137 Pa. 378 ; /;/ re Burdick, 162 111. 48 ; Davis 
 v. Davis, 61 Me. 395). So a stranger may impeach a judgment col- 
 laterally for lack of jurisdiction {Buffum v. Ramsdell, 55 Me. 252 ; 
 Fall River v. Riley, 140 Mass. 488). But as a party may in a proper 
 case bring suit in equity to avoid a judgment procured by fraud [Mar- 
 shall v. Holmes, 141 U. S. 589 ; Mayor v. Brady, 1 15 N. Y. 599), so in 
 some States he may set up such fraud as an equitable defence {Man- 
 deville v. Reynolds, 68 N. Y. 543-546 ; Ferguson v. Crawford, 70 N. Y. 
 253 ; Stowell v. Eld?-ed, 26 Wis. 504 ; Hallack v. Loft, 19 Col. 74 ; see 
 Duringer \ . Moschino, 93 Ind. 495). And when the fraud is in acquir- 
 ing jurisdiction, the rules in note 1, p. 136, supra, apply; see Bollingv. 
 Speller, 96 Ala. 269.] 
 
 3 Cases collected in T. E. ss. 1 524-1 525, s. 1530. See, too, 2 Ph. Ev. 
 35, and Ochsenbein v. Papelier, L. R. 8 Ch. 695.
 
 138 A DIGEST OF [Part I. 
 
 is brought in an English court to enforce the judgment 
 of another English court, any such matter as aforesaid 
 may be proved by the defendant, even if the matter 
 alleged as fraud was alleged by way of defence in the 
 foreign court and was not believed by them to exist. 1 
 
 Illustration, 
 (a) [Judgment is rendered against A in a common law action for 
 damages in a domestic court of general jurisdiction. He has never 
 been served with process in the action nor has he authorized any 
 attorney to appear for him and thus give the court jurisdiction over 
 his person. In fact, however, B, a duly admitted attorney of the court, 
 has appeared for A in the action and the recitals of the record show 
 such appearance. A cannot impeach the judgment collaterally on 
 the ground that B had no authority to appear for him. He may, how- 
 ever, attack the judgment by a direct proceeding for that purpose, as 
 by a motion in the original action to vacate it.] 2 
 
 Article 47. 
 foreign judgments. 
 
 The provisions of Articles 40-46 apply to such of the 
 judgments of courts of foreign countries as can by law 
 
 1 Abouloff v. Oppenheimer, 10 Q. B. D. 295. [It was held in this 
 case that fraud in procuring a judgment in a foreign court was a good 
 defence to an action upon the judgment, though the fact whether such 
 fraud existed had been investigated in the foreign court. To the same 
 effect is Vadala v. Lawes, 25 Q. B. D. 310. As to the American law 
 on this question, see Art. 47, note.] 
 
 2 [Vilas v. Pittsburgh, etc. R. Co., 123 N. Y. 440 ; Mutual Life Ins. 
 Co. v. Pinner, 43 N. J. Eq. 52 ; Bradley v. Welch, 100 Mo. 258 ; Cor- 
 bitt v. Timmerman, 95 Mich. 581 ; Reynolds v. Fleming, 30 Kan. 106 , 
 Cleveland v. Hopkins, 55 Wis. 387 ; Denton v. Roddy, 34 Ark. 642. 
 By some authorities, also, an action for damages will lie against the 
 attorney, if any loss has been sustained by his unauthorized act 
 {Everett v. Warner Bk., 58 N. H. 340; Hackett v. McMillan, 112 
 N. C. 513). In Ferguson v. Crawford, 70 N. Y. 253, where there was
 
 Chap. IV.] THE LAW OF EVIDENCE. 139 
 
 be enforced in this country, and so far as they can be so 
 enforced. 1 
 
 what purported to be an attorney's appearance, but this was a forgery, 
 this fraud was held available by way of equitable defence to impeach 
 the judgment. Some States allow judgments entered upon an un- 
 authorized appearance to be collaterally attacked. Bruschke v. N. 
 Chicago Verein, 145 111. 433 ; cf. Shelton v. Tiffiii, 6 How. (U. S.) 163.] 
 
 1 The cases on this subject are collected in the note on the Duchess 
 of Kingston s Case, 2 S. L. C. 813-845. A list of the cases will be found 
 in R. N. P. 221-3. The last leading cases on the subject are Godard 
 v. Gray, L. R. 6 Q. B. 139, and Castrique v. Imrie, L. R. 4 E. & I. App. 
 414. See, too, Schisby v. Westenholz, L. R. 6 Q. B. 155 ; Rousillon v. 
 Rousillon, 14 Ch. D. 370 ; and Nonvion v. Freeman, 15 App. Cas. 1. 
 
 [The judgments of sister States are in this country ranked as foreign 
 judgments within this rule. The U. S. Constitution (Art. 4, §1) de- 
 clares that " full faith and credit shall be given in each State to the 
 public acts, records, and judicial proceedings of every other State," 
 and Congress has enacted that " the said records shall have such faith 
 and credit given to them in every court within the United States as 
 they have by law or usage in the courts of the State from which they 
 are taken " (U. S. Rev. St. §905 ; see Huntington v. Attrill, 146 U. S. 
 657; Harrington v. Harrington, 154 Mass. 517; Dow v. Blake, 148 
 111. 76 ; Fairchild v. Fairchild, 53 N. J. Eq. 678). Nevertheless, such 
 judgments may be avoided collaterally for lack of jurisdiction, even 
 in contradiction of recitals in the record showing jurisdiction ( Thomp- 
 son v. Whitman, 18 Wall. 457 ; Graham v. Spencer, 14 F. R. 603 ; 
 Gregory v. Gregory, 78 Me. 187 ; Cross v. Cross, 108 N. Y. 628 ; Royal 
 Arcanum v. Carley, 52 N. J. Eq. 642 ; Price v. Schaeffler, 161 Pa. 530 ; 
 Gree7tzweig v. Sterlinger, 103 Cal. 278 ; Napton v. Leatt>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. <S^ M. R. Co., 163 Mass. 189 ; Musser v. Staujffer, 178 Pa. 
 99; Slaughter v. Bernards, 88 Wis. in). In this country, when the 
 law of a sister State is not proved, it is the common law of the forum,
 
 Chap. V.] THE LAW OF EVIDENCE. 147 
 
 offered is sufficient to entitle him to be considered as an 
 expert. 1 
 
 The opinion of an expert as to the existence of the 
 
 and not the statute law, which is generally held applicable {Carpenter 
 v. Grand Trunk R. Co., 72 Me. 388 ; O'Reilly v. N. Y. etc. R. Co., 16 
 R. I.389; Kelley v. Kelley, 161 Mass. n 1; Lane v. Wheelwright, 69 
 Hun, 180, 143 N. Y. 634 ; Jackson v. Pittsburgh, etc. R. Co., 140 Ind. 
 241 ; Rice v. Rankans, 101 Mich. 380, note ; Mohr v. Miesen, 47 Minn. 
 228 ; Burdict v. Mo. Pac. R. Co., 123 Mo. 221 ; Kahl v. Memphis, etc. 
 R. Co., 95 Ala. 337 ; Thorn v. IVeatherly, 50 Ark. 237 ; Pattillo v. 
 Alexander, 96 Ga. 60 ; see Harris v. White, 81 N. Y. 532, 544), except 
 when the sister State (as e. g., Texas) derived its system of law from 
 some other source than the English law, in which case the general 
 law of the forum, both written and unwritten, is applied (Hurley v. 
 Mo. Pac. R. Co., 57 Mo. App. 675 ; Buchanan v. Hubbard, 119 Ind. 
 187 ; Brown v. Wright, 58 Ark. 20 ; Davison v. Gibson, 56 F. R. 443 ; 
 so as to a foreign country, Savage v. O 'Neil, 44 N. Y. 298). In some 
 States, however, the general law of the forum is applied in all cases 
 when the law of the other State or country is not proved. Cavallaro 
 v. Texas, etc. R. Co., 1 10 Cal. 348 ; Bennett v. Cadwell ' s Excr., 70 Pa. 
 253 ; Neese v. Fanners' Ins. Co., 55 la. 604 ; Smith v. Mason, 44 Neb. 
 61 1 ; see p. 163, note 2, post.] 
 
 1 Bristow v. Sequeville, 6 Ex. 275 ; Rowley v. L. &° N. W. Railway, 
 L. R. 8 Ex. 221 ; hi the Goods of Bonelli, L. R. 1 P. D. 69 ; and see 
 hi the Goods of Dost Aly Khan, 6 P. D. 6. [Slocovich v. Orient Ins. 
 Co., 108 N. Y. 56; Stillwell, etc. Co. v. Phelps, 130 U. S. 520 ; Struthers 
 v. Phila. etc. R. Co., 174 Pa. 291 ; Perkins v. Stickney, 132 Mass. 217. 
 The decision of the trial judge on this point will be deemed conclusive, 
 unless clearly shown to be erroneous (Id.; Marston v. Dinghy, 88 Me. 
 546 ; N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. L. 189 ; Stevens 
 v. Minneapolis, 42 Minn. 136). The witness need not be still in the 
 practice of his profession, etc. (Roberts v. Johnson, 58 N. Y. 613; cf. 
 Seckingerv. Mfg Co., 129 Mo. 590). 
 
 The opinion of an expert is admissible though he has no personal 
 knowledge of the facts of the case. But in the question asking his 
 opinion, the facts, as counsel claim them to exist, should then be 
 stated in hypothetical form ; and in framing the question, counsel may 
 assume such a state of facts as the evidence fairly tends to justify 
 (Steams v. Field, 90 N. Y. 640 ; Jewell v. Brooks, 134 Mass. 505 ; 
 Barber s Appeal, 63 Ct. 393 ; Meeker v. Meeker, 74 la. 352 ; Hicks v. 
 Citizens' R. Co., 124 Mo. 115); but in cross-examination counsel need
 
 148 A DIGEST OF [Part I. 
 
 facts on which his opinion is to be given is irrelevant, 
 unless he perceived them himself. 1 
 
 Illustrations. 
 
 (a) The question is, whether the death of A was caused by poison. 
 The opinions of experts as to the symptoms produced by the poison 
 by which A is supposed to have died, are deemed to be relevant. 4 
 
 not be so restricted {People v. Augsbury, g7 N. Y. 501). This rule that 
 a hypothetical question must be asked applies even though the witness 
 has heard the evidence of the facts as given by prior witnesses, if the 
 facts are controverted or doubtful {Guiterman v ■. Liverpool, etc. St. 
 Co., 83 N. Y. 358; People v. McElvaine, 121 N. Y. 250; Dexter v. 
 Hall, 15 Wall. 9; Coy lev. Comm., 104 Pa. 117; Stoddard v. Win- 
 chester, 157 Mass. 567 ; Pylev. Pyle, 158 111. 289 ; Bennett v. State, 57 
 Wis. 69). But in some cases, as where the facts are not in dispute, or 
 the evidence heard is clear and plain and hot difficult to bear in mind, 
 the expert, having heard the evidence in the case, may be asked his 
 opinion thereon, without a full hypothetical statement of the facts 
 {Seymour v. Fellows, 77 N. Y. 178 ; People v. Theobald, 92 Hun, 182 ; 
 State v. Watson, 81 la. 380 ; Gates M.Fleischer, 67 Wis. 504 ; Huntw. 
 Lowell Gas Co., 8 Allen, 169 ; State v. Klinger, 46 Mo. 224 ; State v. 
 Hayden, 51 Vt. 296). And where the expert bases his opinion upon 
 his knowledge of the facts, a hypothetical case need not be stated 
 {Mercer \. Vose, 67 N. Y. 56 ; Niendorffv. Manhattan R. Co., 4 App. 
 Div. (N. Y.) 46 ; Bellefontaine, etc. R. Co. v. Bailey, 1 1 O. St. 333). A 
 medical expert may testify as to the mental condition of a person who 
 has been his patient, or whom he has personally examined, without 
 first disclosing the facts on which his opinion is based. People v. 
 Youngs, 151 N. Y. 210 ; Crockett v. Davis, 81 Aid. 134 ; cf. People v. 
 Nino, 149 N. Y. 317.] 
 
 1 1 Ph. Ev. 507 ; T. E. s. 1278. [Carpenter v. Eastern Trans. Co., 71 
 X. Y. 574. So his opinion is not received as to the effect of the evidence 
 in establishing controverted facts {Hunt v. Lowell Gas Co., 8 Allen, 
 169 ; People v. Barber, 115 N. Y. 475 ; see Priest v. Groton, 103 Mass. 
 530). Nor is a witness's opinion received as to a matter of legal or 
 moral obligation. Gr. Ev. i. § 441 ; Milwaukee, etc., R. Co. v. Kellogg, 
 99 U. S. 469, 473 ; Seliger v. Bastian, 66 Wis. 521 ; McKean v. R. Co., 
 55 la. 192 ; cf. Cochrane v. Little, 71 Md. 323 ; Monroe v. Lattin, 25 
 Kan. 351.] 
 
 8 R. v. Palmer {passim). See my History of Crim. Law, iii. 389 
 [Stephens v. People, 4 Park. Cr. 396.]
 
 Chap. V.] THE LAW OF EVIDENCE. 149 
 
 (b) The question is, whether A, at the time of doing a certain act, 
 was, by reason of unsoundness of mind, incapable of knowing the na- 
 ture of the act, or that he was doing what was either wrong or con- 
 trary to law. 
 
 The opinions of experts upon the question whether the symptoms 
 exhibited by A commonly show unsoundness of mind, and whether 
 such unsoundness of mind usually renders persons incapable of know- 
 ing the nature of the acts which they do, or of knowing that what they 
 do is either wrong or contrary to law, are deemed to be relevant. 1 
 
 (c) The question is, whether a certain document was written by A. 
 Another document is produced which is proved or admitted to have 
 been written by A. 
 
 The opinions of experts on the question whether the two documents 
 were written by the same person, or by different persons, are deemed 
 to be relevant. 2 
 
 (d) The opinions of experts on the questions, whether, in Illustra- 
 tion (a), A's death was in fact attended by certain symptoms ; whether, 
 in Illustration (b), the symptoms from which they infer that A was of 
 unsound mind existed ; whether, in Illustration (c), either or both of 
 the documents were written by A, are deemed to be irrelevant. 3 
 
 (e) [The question is, whether certain blood-stains have been caused 
 by human blood or by the blood of animals. 
 
 The opinion of an expert that some of the stains are of the one sort 
 and some of the other is deemed to be relevant. 4 
 
 But a non-expert may give evidence that stains recently made are 
 caused by blood.] 5 
 
 (f) [The question is, whether certain circumstances affecting prop- 
 erty insured are material to the risk. 
 
 1 R. v. Dove (passim). History Crim. Law, iii. 426. [See People v. 
 Tuczkewitz, 149 N. Y. 240 ; U. S. v. Guiteau, 1 Mackey, 498 ; State v. 
 Hay den, 51 Vt. 296.] 
 
 2 28 Vict. c. 18, s. 8 ; [see Art. 52, and note; Ludlow v. Warshing, 
 108 N. Y. 520.] 
 
 3 [But that an expert may testify that the disputed document was 
 written by A, see Costello v. Crowell, 133 Mass. 352 ; see Art. 52.] 
 
 4 \Linsday v. People, 63 N. Y. 143, 147, 156.] 
 
 5 {Greenfield v. People, 85 N. Y. 75 ; State v. Welch, 36 W. Va. 690 ; 
 State Y.Robinson, 117 Mo. 649. In McLain v. Comm., 99 Pa. 86, it was 
 even held that a non-expert might testify that stains were made by 
 human blood, and that, too, though the stains were not freshly made.]
 
 150 A DIGEST OF [Part I. 
 
 The opinions of experts upon the materiality of these circumstances 
 are deemed to be relevant, except in cases where the question is 
 within the scope of common knowledge and observation, so that jurors 
 may be deemed capable of determining it without expert aid.] 1 
 
 (g) [The question is, whether a railway train stopped long enough 
 at a station to enable passengers to get off. 
 
 The opinion of an expert upon this question is deemed to be irrele- 
 vant.] s 
 
 (h) [The question is, on a trial for murder, whether a certain piece 
 of paper has the appearance of wadding shot from a gun. 
 
 The opinion of an expert upon this point is deemed to be irrele- 
 vant.] 3 
 
 (/) [The question is, whether B, who, while engaged in constructing 
 a railroad, built brush fires, took proper precautions to prevent their 
 spreading to the adjacent land of A. X, a railroad engineer, experi- 
 enced in railroad construction, is called as an expert to testify on this 
 question. His testimony is inadmissible, since this is a matter which 
 men of ordinary experience and intelligence could determine without 
 such aid.] 4 
 
 (j) [A, an employee in B's machine shop, was injured by the break- 
 ing of a belt used to move machinery. The belt was fastened with a 
 belt-fastener which gave way. A sued B for damages for this injury, 
 alleging negligence. At the trial experts in the use of belts and 
 fasteners were asked to state their opinion as to the safety and fitness 
 of the kind of belt-fastener which caused A's injury. This evidence 
 was deemed to be irrelevant. The main question at issue was, 
 whether the fastener was suitable and safe, and this should be deter- 
 mined by the jury, not by the opinions of experts.] 5 
 
 1 [Cornish v. Farm, etc. Ins. Co., 74 N. Y. 295 ; Schenck v. Mercer 
 Co. Ins. Co., 24 N. J. L. 447; Russell v. Cedar Ins. Co., 78 la. 216; 
 Franklin Ins. Co. v. Gruver, 100 Pa. 266. But the cases are not en- 
 tirely agreed as to what questions are appropriate for expert testimony 
 under this rule ; see Luce v. Dorchester Ins. Co., 105 Mass. 297 ; 
 Thayer v. Providence Ins. Co., 70 Me. 531 ; Kent's Comm., iii. 285.] 
 
 -' {Keller v. N. Y. C. R. Co., 2 Abb. Dec. 480 ; Madden v. Mo. Pac. 
 R. Co., 50 Mo. App. 666 ; cf. a Neil v. Dry Dock, etc. R. Co., 129 N. Y. 
 125 ; I? 1 land Coasting Co. v. Tolson, 139 U. S. 551.] 
 
 *[Manke v. People, 17 Hun, 410, 78 N. Y. 611.] 
 
 1 I Pulsifer v. Berry, 87 Me. 405 ; Ferguson v. Hubbell, 97 N. Y. 507.] 
 
 ' \Harley v. Buffalo Car Co., 142 N, Y. 31.]
 
 Chap. V.] THE LAW OF EVIDENCE. 151 
 
 Article 50.* 
 facts bearing upon opinions of experts. 
 
 Facts, not otherwise relevant, have in some cases been 
 permitted to be proved, as supporting or being incon- 
 sistent with the opinions of experts. 1 
 
 Illustrations. 
 
 (a) The question was, whether A was poisoned by a certain poison. 
 
 The fact that other persons, who were poisoned by that poison, ex- 
 hibited certain symptoms alleged to be the symptoms of that poison, 
 was deemed to be relevant.' 2 
 
 {b) The question is, whether an obstruction to a harbor is caused by 
 a certain bank. An expert gives his opinion that it is not. 
 
 The fact that other harbors similarly situated in other respects, but 
 where there were no such banks, 3 began to be obstructed at about the 
 same time, is deemed to be relevant. 
 
 Article 51. 
 opinion as to handwriting, when deemed to be relevant. 
 
 When there is a question as to the person by whom any 
 document was written or signed, the opinion of any per- 
 
 * I have altered the wording of this Article, so as to make it less 
 absolute than it was in earlier editions. The admission of such evi- 
 dence is rare and exceptional, and must obviously be kept within 
 narrow limits. At the time of Palmer's trial only two or three cases 
 of poisoning by strychnine had occurred. 
 
 1 \Comm. v. Leach, 156 Mass. 99; Lincoln v. Taunton Mf'g Co., 9 
 Allen, 181 ; Tilton v. Miller, 66 Pa. 388 ; cf. Doyle v. N. Y. Infirmary, 
 80 N. Y. 631; Olmsted v. Gere, 100 Pa. 127.] 
 
 2 R. v. Palmer, printed trial, p. 124, etc. History Crim. Law, iii. 
 389. In this case (tried in 1856) evidence was given of the symptoms 
 attending the deaths of Agnes Senet, poisoned by strychnine in 1845, 
 Mrs. Serjeantson Smith, similarly poisoned in 1848, and Mrs. Dove, 
 murdered by the same poison subsequently to the death of Cook, for 
 whose murder Palmer was tried. 
 
 3 Folkes v. Chadd, 3 Doug. 157; [cf. Hawks v. Charlemont, no 
 Mass. no.]
 
 152 A DIGEST OF [Part I. 
 
 son acquainted with the handwriting of the supposed 
 writer that it was or was not written or signed by him, is 
 deemed to be a relevant fact. 1 
 
 A person is deemed to be acquainted with the hand- 
 writing of another person when he has at any time seen 
 that person write, 5 or when he has received documents 
 purporting to be written by that person in answer to 
 documents written by himself or under his authority, and 
 addressed to that person, 3 or when, in the ordinary course 
 of business, documents purporting to be written by that 
 person have been habitually submitted to him. 4 
 
 1 [For a valuable article on this subject, see Am. Law Rev. xvi. 569.] 
 
 2 [Comm. v. Hall, 164 Mass. 152; State v. Harvey, 131 Mo. 339; 
 Karr v. State, 106 Ala. 1 ; State v. Farrington, 90 la. 673. Having 
 seen him write once is enough; this affects the weight, not the com- 
 petency, of the testimony {Hammond v. Varian, 54 N. Y. 398 ; Comm. 
 v. Nefus, 135 Mass. 533 ; McNairv. Comm., 26 Pa. 388 ; State v. Stair, 
 87 Mo. 268 ; Diggings Estate, 68 Vt. 198). So a person's mark, having 
 some distinctive peculiarity, may be proved in this way (Strong's 
 Excrs. v. Brewer, 17 Ala. 706; Fogg v. Dennis, 3 Humph. 47 ; Jack- 
 son v. Van Ditscn, 5 Johns. 144; George v. Surrey, 1 M. & M. 516; 
 contra, Shinkle v. Crock, 17 Pa. 159). But a person who sees another 
 write, or examines his handwriting, expressly for the purpose of being 
 able to testify, is, in general, an incompetent witness (Reese v. Reese, 
 90 Pa. 89 ; Board of Trustees v. Misenhciincr, 78 111. 22 ; Hynes v. J/c- 
 Dermott, 82 N. Y. 41, 53). A witness may testify as to handwriting 
 who cannot read or write himself. Foye v. Patch, 132 Mass. 105.] 
 
 3 [Chaffee v. Taylor, 3 Allen, 598; Clark v. Freema7i, 25 Pa. 133; 
 Thomas v. State, 103 Ind. 419; Riggs v. Powell, 142 111. 453 ; Cun- 
 ningham v. Hudson River Bk., 21 Wend. 557; Empire M/'g Co. v. 
 Stuart, 46 Mich. 482. So if the witness has received letters or other 
 writings of a person, who has afterwards, by words or acts, acknowl- 
 edged their genuineness (Gr. Ev. i. § 577 ; Johnson v. Daverne, 19 
 Johns. 134; Snyder v. McKeever, 10 111. App. 188 ; Flowers v. Fletcher, 
 40 \V. Va. 103 ; Pinkham v. Cockell, 77 Mich. 265, 272 ; Violet v. Rose, 
 39 Neb. 660 ; White v. Tolliver, 1 10 Ala. 300); but not if he has only 
 seen letters to strangers, purporting to be those of the person in ques- 
 tion. Phila. etc. R. Co. v. Hickman, 28 Pa. 318; Gibson v. Trow- 
 bridge Co., 96 Ala. 357 ; Nunes v. Perry, 113 Mass. 274.] 
 
 4 See Illustration. [Berg v. Peterson, 49 Minn. 420 ; Tit/ordv. Knott,
 
 Chap. V.] THE LAW OF EVIDENCE. 153 
 
 Illustration. 
 
 The question is, whether a given letter is in the handwriting of A, 
 a merchant in Calcutta. 
 
 B is a merchant in London, who has written letters addressed to A, 
 and received in answer letters purporting to be written by him. C is 
 B's clerk, whose duty it was to examine and file B's correspondence. 
 D is B's broker, to whom B habitually submitted the letters purport- 
 ing to be written by A for the purpose of advising with him thereon. 
 
 The opinions of B, C, and D on the question whether the letter is 
 in the handwriting of A are relevant, though neither B, C, nor D ever 
 saw A write. 1 
 
 The opinion of E, who saw A write once twenty years ago, is also 
 relevant.' 2 
 
 Article 52. 
 
 comparison of handwritings. 
 
 Comparison of a disputed handwriting with any writ-, 
 ing proved to the satisfaction of the judge to be genuine 
 is permitted to be made by witnesses, and such writings, 
 and the evidence of witnesses respecting the same, may 
 be submitted to the court and jury as evidence of the 
 genuineness or otherwise of the writing in dispute. This 
 paragraph applies to all courts of judicature, criminal 
 
 2 Johns. Cas. 211 ; Comm. v. Smith, 6 S. & R. 568. Thus public 
 officers who have seen many official documents filed in their office, 
 having the signature of a certain justice, may testify as to an alleged 
 signature of his {Rogers v. Ritter, 12 Wall. 317 ; Amherst Bk. v. Root, 
 2 Met. 522 ; Burdell v. Taylor, 89 Cal. 613). As to signatures upon 
 ancient writings, a person may testify who has gained his knowledge 
 by inspecting other ancient authentic documents bearing the same 
 signature. Jackson v. Brooks, 8 Wend. 426, 15 id. 111.] 
 
 1 Doe v. Sucker more, 5 A. & E. 705 (Coleridge, J.) ; 730 (Patteson, 
 J«); 739-40 (Denman, C. J.). 
 
 2 R. v. Home Tooke, 25 S. T. 71-2. [In Wilson v. Van Leer, 127 Pa. 
 371, the witness had seen the person whose signature was in question 
 write his nam* twice, thirty-two years before ; and once, twenty-three 
 years before ; see also Brachman v. Hall, 1 Disney, 539.]
 
 154 A DIGEST OF [Part I. 
 
 or civil, and to all persons having by law, or by consent 
 of parties, authority to hear, receive, and examine evi- 
 dence. 1 
 
 ' 17 & 18 Vict. c. 125, s. 27 ; 28 Vict. c. 18, s. 8. [There are diverse 
 rules on this subject in different States. A rule substantially like the 
 English rule prevails in all the New England States, in New York, 
 New Jersey, Maryland, Virginia, Kentucky, Tennessee, Mississippi, 
 Ohio, Iowa, Kansas, California, Colorado, Oregon, and Nebraska 
 (State v. Thompson, 80 Me. 194; State v. Hastings, 53 N. H. 452; 
 Powell v. Fuller, 59 Vt. 688 ; Costelo v. Crowell, 139 Mass. 588 ; Pub. 
 St. R. I. c. 214, s. 542 ; State v. Griswold, 67 Ct. 290 ; People v. Corey, 
 148 N. Y. 476 ; Laws of 1888, N. Y. c. 555 ; N. J. Rev. p. 381 ; Laws of 
 Md. 1888, c. 545 ; Hanriot v. Sherwood, 82 Va. 1 ; Andrews v. 
 Hay den's Admr, 88 Ky. 455 ; Powers v. McKenzie, 90 Tenn. 167 ; 
 Wilson v. Beanchamp, 50 Miss. 24 ; Koons v. State, 36 O. St. 195 ; 
 Sankey v. Cook, 82 la. 125 ; State v. Zimmerman, 47 Kan. 242 ; Mar- 
 shall v. Hancock, 80 Cal. 82 ; Laws of 1893, Col. c. 88 ; Holmes v. 
 Goldsmith, 147 U. S. 150; First Nat. Bk. v. Carson, 48 Neb. 764). 
 But in many States, collateral and irrelevant writings cannot be 
 introduced for comparison (Snidery. Burks, 84 Ala. 53 ; People v. 
 Parker, 67 Mich. 222 ; State v. Thompson, 132 Mo. 301 ; Him rod v. 
 Oilman, 147 111. 293 ; Hazleton v. Union Bank, 32 Wis. 34 ; cf. State 
 v. Koontz, 31 W. Va. 127 ; Tunstall v. Cobb, 109 N. C. 316 ; Smyth v. 
 Caswell, 67 Tex. 567) ; so in the Federal courts (Stokes v. U. S.,\ 57 U. S. 
 187) ; generally, however, in these States genuine writings which are 
 properly in evidence in the case for other purposes may be used for 
 comparison by the jury, and in a number of them such comparison 
 may be made by experts to aid the jury (Id.; see Kirksey v. Kirksey, 
 41 Ala. 626 ; Vinton v. Peck, 14 Mich. 287 ; Williams v. Conger, 125 
 U. S. 397). In Indiana and Minnesota comparison maybe made with 
 writings already in evidence in the case and also, by experts with 
 other writings which, though not relevant, are admitted to be genuine 
 (McDonald v. McDonald, 142 Ind. 55, 69; Morrison v. Porter, 35 
 Minn. 425 ; cf. Dietz v. Fourth Nat. Bk., 69 Mich. 287). In Pennsyl- 
 vania comparison with writings proved to be genuine may be made 
 by the jury as corroborative evidence, but not by experts (Rockeys 
 Estate, 155 Pa. 453). See this general subject fully treated in Am. 
 Law Rev. xvii. 21 ; Gr. Ev. i. §§ 576-582. 
 
 A person's signature or other writing made by him in court at the 
 trial will not generally be allowed to be used for comparison (Cotnm. v. 
 Allen, 128 Mass. 46; Hickory v. U. S., 151 U. S. 303; Gilbertv. Simpson, 
 6 Daly, 29; Williams v. State, 61 Ala. 33). But this is sometimes per-
 
 
 Chap. V.] THE LAW OF EVIDENCE. 155 
 
 
 
 (m~> 
 
 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<?, 104 Mich. 341 ; State 
 v. Rounds, 76 Me. 123 ; Conun. v. Leach, 160 Mass. 542). Every con- 
 stituent element of the crime must be proved beyond reasonable doubt, 
 but this is not required as to each evidentiary fact ( Wade v. State, 71 
 Ind. 535 ; Jamison v. People, 145 111. 357 ; People v. Fairchild, 48 Mich. 
 31; Kallock v. State, 88 Wis. 663; Porterfield v. Comm., 91 Ya. 801; 
 Clare v. People, 9 Col. 122; cf. State v. Magoon, 68 Vt. 289). The 
 court should, if requested, charge the jury that the law presumes a 
 person accused of crime to be innocent, as well as instruct them that 
 guilt must be proved beyond reasonable doubt {Coffin v. U. S., 156 
 U. S. 432 ; Newsom v. State, 107 Ala. 133 ; cf. State v. Smith, 65 Ct. 
 283). 
 
 In civil cases, on the contrary, it is the rule that only a preponder- 
 ance of evidence is required to sustain a verdict {Seybolt v. N. Y. etc. 
 R. Co., 95 N. Y. 562 ; Taylor v. Pelsing, 164 111. 331 ; Hall v. WolffM 
 la. 559; Strand v. Chicago, etc. R. Co., 67 Mich. 380), and this rule 
 applies both to a plaintiff in proving his cause of action {Farmers' L. 
 &= T. Co. v. Siefke, 144 N. Y. 355) and to a defendant in establishing his 
 defence {sEtna Life Pis. Co. v. Ward, 140 U. S. 76; Phenix Ins. Co. 
 v. Picket, 119 Ind. 155). If the evidence on the two sides is in equi- 
 poise, the verdict should be against the party having the general bur- 
 den of proof upon the issue {Broult v. Hanson, 158 Mass. 17 : Whit- 
 latch v. Fidelity, etc. Co., 149 N. Y. 45 ; Birmingham Union R. Co. v. 
 Hall, 90 Ala. 8 ; Rogers v. Wallace, 10 Or. 387 ; Gage v. Railway Co's, 
 88 Tenn. 724). Preponderance of evidence does not consist merely in 
 having a greater number of witnesses, fur "witnesses are to be weighed 
 and not counted " {Fengar v. Brown, 57 Ct. 60; State v. Mustek, 71 Mo. 
 401; Grant v. McPherson, 104 Cal. 165 ; cf. Kelley v. Brown, 18 R. I. 
 41); still if opposing witnesses are of equal credit, excess in number 
 may count for much with the court or jury {Kentner v. Kline, 41 N. J. 
 Eq. 422 ; Lillibridge v. Barber, 55 Ct. 366 ; Peters v. Canfield, 74 Mich 
 498 ; but see Thomas v. Paul, 87 Wis. 607 ; Braunsc hweiger v . Waits, 
 179 Pa. 47). 
 
 There is much conflict of opinion in this country as to which of these
 
 Chap. XIII.] THE LAW OF EVIDENCE. 239 
 
 of a crime or wrongful act is on the person who asserts it, 
 
 rules applies in civil cases, where the commission of. a crime is in issue. 
 A few States have adopted the general English rule {Grimes v. Hil- 
 liary, 150 111. 141; Williams v. Dickenson, 28 Fla. go); but in most 
 States only a preponderance of evidence is generally required to prove 
 the crime {People v. Briggs, 114. N. Y. 56; Bairdv. Abbey, 73 Mich. 
 347; Thoreson v. Northwestern Bis. Co., 29 Minn. 107; Continental 
 Bis. Co. v./achnichen, no Ind. 59; U. S. Express Co. v. Jenkins, 73 
 Wis. 471; Coitv. Churchill, 61 la. 296; Smith v. Burrus, 106 Mo. 94). 
 Thus in actions for libel or slander, where the defendant pleads a 
 "justification," viz., that the charge of crime he made against the 
 plaintiff was true, proof beyond a reasonable doubt is required in 
 some States to support this plea {Fowler v. Wallace, 131 Ind. 347; 
 Burckhalter v. Coward, 16 S. Car. 435 ; Merk v. Gelzhaeuser, 50 Cal. 
 631); but in most States only a preponderance of evidence is required 
 {Bell v. McGuinness, 40 O. St. 204 ; Ellis v. Buzzell, 60 Me. 209 ; Fol- 
 som v. Brawn, 25 N. H. 1 14 ; Currier v. Richardson, 63 Yt. 617 ; Lewis 
 v. Skull, 67 Hun, 543 ; McBee v. Fulton, 47 Md. 403 ; Atlanta Journal 
 v. Alaysou, 92 Ga. 640; 111. Rev. St. c. 126, s. 3; Peoples v. Evening 
 News, 51 Mich. 1 1 ; Kidd v. Fleek, 47 Wis. 443 ; Riley v. Morton, 65 la. 
 306; Edwards v. Knapp, 97 Mo. 432). In insurance cases, similar to 
 Illustration {a), the great weight of authority is against the English 
 rule, and requires only a preponderance of evidence {Blaeser v. Mil- 
 waukee Ins. Co., 37 Wis. 31; Kane v. Hibernia Bis. Co., 39 N. J. L. 
 697 ; Rothschild v. Amer. Bis. Co., 62 Mo. 356 ; Behrens v. Germania 
 Bis. Co., 58 la. 26; Johnson v. Agr. Bis. Co., 25 Hun, 251, and see 114 
 N. Y. 56 ; Schmidt v. N. Y. etc. Ins. Co., 1 Gray, 529, see 15 Gray, 413 ; 
 Somerset Co. Ins. Co. v. Usaw, 112 Pa. 80 ; Hall v. Matthews, 118 Ind. 
 527 ; Monaghan v. Agr. Ins. Co., 53 Mich. 238); but in a few States 
 the English rule is followed {Germania Ins. Co. v. Klewer, 129 111. 599 ; 
 Schultz v. Pacific Ins. Co., 14 Fla. 73). In many other civil cases 
 involving a charge of crime, the rule of preponderance has been 
 applied {Roberge v. Burnham, 124 Mass. 277 (action for sale of liquor 
 to minor); Mead v. Husted, 52 Ct. 53, Kcndig v. Overhulser, 58 la. 195 
 (action for setting property on fire); Munson v. Atwood, 30 Ct. 102 
 (action for damages, under statute, for stealing cattle) ; Poertner v. 
 Poertner, 66 Wis. 644 (action for divorce on ground of adultery, which 
 is a crime in Wisconsin ; S. P. Lindley v. Lindley, 68 Vt. 421 ; Nelson 
 v. Pierce, 18 R. I. 539 ; cf. Allen v. Allen, 101 N. Y. 658); so fraud in 
 a civil action requires only preponderance of evidence, even though 
 it also amounts to a crime {Jones v. Greaves, 26 O. St. 2 ; Hough v. 
 Dickinson, 58 Mich. 89; Turner v. Hardin, 80 la. 691; Bullard v.
 
 240 A DIGEST OF [Part III. 
 
 whether the commission of such act is or is not directly in 
 issue in the action. 1 
 
 Creditors, 56 Cal. 600); so, in most States, as to proof of bastardy in 
 proceedings against the putative father {Scmon v. People, 42 Mich. 141 ; 
 State v. Severson, 78 la. 653 ; Reynolds v. State, 115 Ind. 421 ; Johnson 
 v. People, 140 111. 350; contra, Van Tassel v. State, 59 Wis. 351). 
 
 There are some issues in civil actions or proceedings which require 
 more than a mere preponderance of evidence to maintain them. The 
 rule, as variously stated, declares that the evidence must be "clear, 
 unequivocal and convincing," "clear, precise and indubitable," "full, 
 clear and satisfactory," "clear and conclusive," etc. Such an amount 
 or weight of evidence is required to prove a deed to be a mortgage 
 {C adman v. Peter, 118 U. S. 73 ; Wilson v. Parshall, 129 N. Y. 223; 
 Fisher \. IVitham, 132 Pa. 488 ; Cake v. Skull, 45 N. J. Eq. 208 ; Blake 
 v. Taylor, 142 111. 482 ; Tilden v. Streeter, 45 Mich. 533) ; to reform a 
 deed or other written instrument {Simmons Creek Coal Co. v. Do ran, 
 142 U. S. 417 ; Schwass v. Hershey, 125 111. 653; Phamix Ins. Co. v. 
 Ryland, 69 Md. 437 ; Turner v. Shaw, 96 Mo. 22 ; Boyertoivn Nat. Bk. 
 v. Hartman, 147 Pa. 558 ; Christopher St. R. Co. v. 23d St. R. Co., 149 
 N. Y. 51 ; Green v. Stone, 54 N. J. Eq. 387 ; Pulaski Iron Co. v. Palmer, 
 89 Va. 384); to establish a resulting trust (Burdettv. May, 100 Mo. 13 ; 
 Towle v. Wadsworth, 147 111. 80 ; Alurphy v. Hanscome, 76 la. 192 ; cf. 
 . I //fii v. Withrow, no U. S. 119); to set aside a written instrument 
 for fraud or mistake ( U. S. v. Budd, 144 U. S. 154 ; Cummins v. Hurl- 
 butt, 92 Pa. 165) ; to establish a gift causa mortis {Devlin v. Green- 
 wich Sav. Bk., 125 N. Y. 756; Barnum v. Reed, 136 111. 388); to sus- 
 tain the defence of usury {Rosenstein v. Fox, 150 N. Y. 354, 364 ; Tay- 
 lor v. Morris, 22 N. J. Eq. 606 ; Poppleton v. Nelson, 12 Or. 349) ; to 
 impeach the certificate of acknowledgment in a deed {Ford v. Os- 
 •, 45 O. St. 1 ; Griffin v. Griffin, 125 111. 430 ; Albany Co. Sav. Bk. 
 v. McCarty, 149 N. Y. 71 ; Young v. Duvall, 109 U. S. 573 ; Lewars v. 
 Weaver, 121 Pa. 268). It is sometimes said that the evidence in these 
 cases must be convincing "beyond reasonable doubt" {First Prcsb. 
 Church v. Logan, jy la. 326 ; Bodwell v. Heaton, 40 Kan. 36 ; Stock- 
 bridge Iron Co. v. Hudson Iron Co., 102 Mass. 45 ; Hupsch v. Resch, 
 45 N. J. Eq. 657 ; Strauch v. Hathaway, 101 111. 11), but this has been 
 held too extreme {Southard v. Curlcy, 134 N. Y. 148). Evidence to 
 show a statute to be unconstitutional should be beyond reasonable 
 doubt. People v. Supervisors, 147 N. Y. 1.] 
 
 1 [Gr. Ev. i. §§ 35, 78-80 ; Whitney Arms Co. v. Barlow, 68 N. Y. 34 ; 
 Slocovich v. Orient Ins. Co., 108 N. Y. 56; Darn's v. Darn's, 123 Mass. 
 590. This rule will, in general, make it necessary to prove a negative
 
 Chap. XIII.] THE LAW OF EVIDENCE. 241 
 
 Illustrations. 
 
 (a) A sues B on a policy of fire insurance. B pleads that A burned 
 down the house insured. B must prove his plea as fully as if A were 
 being prosecuted for arson. 1 
 
 (/>) 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. <?., whether A was alive when Z married C] 
 ought to have been left to the jury. 5 
 
 (J) [While A was passing along the street in front of the shop of B, 
 a dealer in flour, a barrel of flour fell from an upper window of the 
 shop and striking A knocked him down and injured him. In an action 
 
 K. 113. [ Whitehead v. Kennedy, 69 N. Y. 462 ; Dunn v. Record, 63 
 Me. 17 ; Cuthbertsori s Appeal, 97 Pa. 163 ; see Art. 97 A, post.] 
 
 1 Guy v. West, Selw. N. P. 1297. 
 
 2 Doe v. Coulthred, 7 A. & E. 235. [Burt v. Panjaud, 99 U. S. 180 ; 
 cf. Linthicum v. Ray, 9 Wall. 241.] 
 
 3 Armoury v. Delamirie, 1 S. L. C. 357. [Gr. Ev. i. § 37 ; Clark v. 
 Miller, 4 Wend. 628; McCown v. Quigtey, 147 Pa. 307; but see 
 Berney v. Dinsmore, 141 Mass. 42.] 
 
 4 Koster v. Reed, 6 B. & C. 19. [See Gordon v. Bowne, 2 Johns. 150 ; 
 Berwind v. Greenwich Ins. Co., 114 N. Y. 231.] 
 
 5 R. v. If r illshire, 6 Q. B. D. 366. [See Comm. v. McGrath, 140 Mass. 
 296; Parker v. State, 77 Ala. 47 ; State v. Plym, 43 Minn. 385 ; Williams 
 v. Williams,6$ Wis. 58; Art.94.rt7/zV, Illustration (c); p 262, post, note.]
 
 250 A DIGEST OF [Pakt III. 
 £. 
 
 by A against B, A proved only the fact of the injury, and this was held 
 sufficient to establish -a prima facie case of negligence against B, so 
 that A might recover in the absence of opposing evidence.] 1 
 
 'ARTICLE 0,6. 
 BURDEN OF PROOF AS TO PARTICULAR FACT. 
 
 The burden of proof as to any particular fact lies on that 
 person who wishes the court to believe in its existence, 
 unless it is provided by any law that the burden of prov- 
 ing that fact shall lie on any particular person ; 3 but the 
 burden may in the course of a case be shifted from one 
 
 ' [Byrne v. Boadle, 2 H. & C. 722 ; see Scott v. Lo7idon, etc. Docks 
 Co., 3 id. 596 (fall of bags of sugar from warehouse); Kearney v. Lon- 
 don, etc. ft. Co., L. R. 5 Q. B. 411, 6 id. 759 (fall of brick from bridge 
 over highway); Hogan v. Manhattan R. Co., 149 N. Y. 23 (fall of 
 piece of iron from elevated railway); Mullen v. St. John, 57 N. Y. 
 567 (fall of building into highway); Breen v. N. Y. C. R. Co., 109 N. Y. 
 297 (injury to passenger by swinging door on train); Uggla v. West 
 End R. Co., 160 Mass. 351 (fall of electric railway apparatus): Sheri- 
 dan v.Foley, 58 N.J. L. 230 (fall of bricks from scaffold or hod); 
 Treadwell v. Whittier, 80 Cal. 574 (fall of elevator); cf. Huey v. 
 Gahlenbeck, 121 Pa. 238. The maxim res ipsa loquitur is frequently 
 applied to cases of injury by carriers, especially railroad companies, 
 to goods or passengers, as by collision, derailment of cars, etc. {Buck 
 v. Pa. R. Co., 150 Pa. 170; Bush v. Barrett, 96 Cal. 203; Mont- 
 gomery, etc. R. Co. v. Mallett, 92 Ala. 209 ; Hutchinson on Carriers, 
 2d ed. §§ 798-801). Oftentimes they are made subject to this rule by 
 statute. Louisville, etc. R. Co. v. Spencer, 149 111. 97 ; Chicago, etc. 
 R. Co. v. Mc Bride, 54 Kan. 172.] 
 
 2 For instances of such provisions see T. E. ss. 345-6- \_Perley v. 
 Perley, 144 Mass. 104 ; Fanners' L. &• T. Co. v. Siefke, 144 N. Y. 354; 
 Phenix Ins. Co. v. Picket, 1 19 Ind. 155. Thus the defendant must prove 
 any affirmative defences which he sets up, as payment, usury, fraud, 
 illegality, etc. {Noble v. Fagnant, 162 Mass. 275 ; Spencer v. Citizens 
 Ins. Co., 142 X. Y. 505; Rosenstein v. Fox, 150 N. Y. 354, 364; 
 Haughwout v. Garrison, 69 X. Y. 339 ; Godfrey v. Crisler, 121 Ind. 
 203; .Etna Life Ins. Co. v. Ward, 140 U. S. 76.]
 
 Chap. XIII.] THE LAW OF EVIDENCE. 251 
 
 side to the other, and in considering the amount of evi- 
 dence necessary to shift the burden of proof, the court 
 has regard to the opportunities of knowledge with re- 
 spect to the fact to be proved which may be possessed by 
 the parties respectively. 1 
 
 Illustrations. 
 
 (a) A prosecutes B for theft, and wishes the court to believe that B 
 admitted the theft to C. A must prove the admission. 
 
 B wishes the court to believe that, at the time in question, he was 
 elsewhere. He must prove it.' 2 
 
 (aa) [A sues B for negligence causing damage. The burden of 
 proving B's negligence rests upon A, but A need not prove the absence 
 on his own part of contributory negligence ; such negligence of A is 
 to be proved by B as matter of defence, unless, indeed, it has been 
 already sufficiently disclosed by A's evidence.] 3 
 
 (b) A, a shipowner, sues B, an underwriter, on a policy of insurance 
 
 1 [Harris v. White, 81 N. Y. 532, 547, 548 ; Selma, etc. R. Co. v. U. S., 
 139 U. S. 560 ; Greeley v. Passaic, 42 N. J. L. 87 ; State v. Hathaway, 
 115 Mo. 36 ; Robinson v. Robinson, 51 111. App. 317. Thus it is held 
 that in proceedings against a person who has been selling liquor, 
 exercising a trade or profession, or doing other acts, without having 
 the license prescribed by law, the burden is on him to prove that he 
 has a license, not on the prosecutor to prove the want of a license. 
 U. S. v. Nelson, 29 F. R. 202 ; State v. Nulty, 57 Vt. 543 ; Mass. Pub. 
 St. c. 214, s. 12 ; Comm. v. Tozule, 138 Mass. 490 ; State v. Higgins, 13 
 R. I. 330 ; People v. Maxwell, 83 Hun, 157 ; People v. Fulda, 52 Hun, 
 65 ; Plainfieldw. Watson, 57 N. J. L. 525 ; People v. Nedrow, 16 111. 
 App. 192 ; State v. Ahem, 54 Minn. 195 ; St Louis v. Weitzel, 130 Mo. 
 600 ; Evans v. State, 54 Ark. 227 ; State v. Emery, 98 N. C. 668 ; Infor- 
 mation ag'st Oliver, 21 S. Car. 318 ; cf. People v. Cannon, 139 N. Y. 
 32, 46 ; contra, Hepler v. State, 58 Wis. 46 ; State v. Kiihuke, 26 Kan. 
 405.] 
 
 2 [See p. 248, note.] 
 
 8 [This is the rule in a majority of the States {Indianapolis, etc. R. 
 Co. v. Horst, 93 U. S. 291; N. J. Exp. Co. v. Nichols, 33 N. J. L. 434 ; 
 Sopherstein v.' Bertels, 178 Pa. 401 ; State v. Bait. &> 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 
 
 {</) In actions for penalties under the old game laws, though the 
 plaintiff had to aver that the defendant was not duly qualified, and 
 was obliged to give general evidence that he was not, the burden of 
 proving any definite qualification was on the defendant. 3 
 
 Gordon v. Richmond, 83 Va. 436 ; Comer v. Coal, etc. Co., 34 W. Va. 
 533 '< Jordafi v. Asheville, 112 N. C. 743 ; Donahue v. Railroad Co., 
 32 S. Car. 299 ; Cahill v. Cincinnati R. Co., 92 Ky. 345 ; Stewart v. 
 Nashville, 96 Tenn. 50 ; Jones v. Malvern Co., 58 Ark. 125 ; Hudson v. 
 Wabash, etc. Ry. Co., 101 Mo. 13; McDonald 'v. Montgomery R. Co., 
 1 10 Ala. 162 ; Gulf, etc. R. Co. v. Shieder, 88 Tex. 152). But in some 
 States A must prove B's negligence and that he was not himself guilty 
 of contributory negligence. Benson v. Titcomb,J2 Me. 31; Boveev. 
 Danville, 53 Vt. 183 ; Mayo v. B. &* M. R. Co., 104 Mass. 137 ; Ryan 
 v. Bristol, 63 Ct. 26 ; Whalen v. Citizens' 1 Gas Co., 151 N. Y. 70 ; Thomas 
 v. Hoosier Co., 140 Ind. 518 ; Chicago, etc. R. Co. v. Levy, 160 111. 355 ; 
 Denman v. Johnston, 85 Mich. 387 ; Gamble v. Muffin, 74 la. 99.] 
 
 1 Elkin v.Janson, 13 M. & W. 655. See, especially, the judgment of 
 Alderson, B., 663-6. [See Insurance Co. v. Folsom, 18 Wall. 237; 
 Fiske v. New Eng. Ins. Co., 15 Pick. 310; Livingston v. Dclajield, 3 
 Cai. 49. It is a general rule that in proving a negative averment, 
 plenary proof is not required. Gr. Ev. i. § 78 ; State v. Foster, 23 N. 
 H. 348; Schmisseur v. Beatrie, itf 111. 210; but see Colorado Coal 
 Co. v. U. S., 123 U. S. 307, 318.] 
 
 - . lb rath v. North Eastern Ry., 11 Q. B. D. 441. [Good v. French, 
 1 1 5 Mass. 201 ; Anderson v. How, 116 N. Y. 336 ; McClaJJerty v. Philp, 
 151 Pa. 86. Plaintiff's innocence is shown by proving the termination 
 of the alleged malicious proceeding in his favor. O'Brien v. Barry, 
 106 Mass. 300; Bobbins v. Robbins, 133 N. Y. 597.] 
 
 3 1 Ph. Ev. 556, and cases there quoted. The illustration is founded 
 more particularly on R. v. Jarvis, in a note to R. v. Stone, 1 Ea. 639, 
 where Lord Mansfield's language appears to imply what is stated 
 above. [See Potter v. Dcyo, 19 Wend. 361; Bliss v. Brainard, 41 
 N. H. 256.]
 
 Chap. XIII.] THE LAW OF EVIDENCE. 253 
 
 Article 97. 
 
 burden of proving fact to be proved to make 
 evidence admissible. 
 
 The burden of proving any fact necessary to be proved 
 in order to enable any person to give evidence of any other 
 fact is on the person who wishes to give such evidence. 
 
 Illustrations. 
 
 {a) A wishes to prove a dying declaration by B. 
 
 A must prove B's death, and the fact that he had given up all hope 
 of life when he made the statement. 1 
 
 (b) A wishes to prove, by secondary evidence, the contents of a lost 
 document. 
 
 A must prove that the document has been lost. 2 
 
 Article 97 a. 
 
 burden of proof when parties stand in a fiduciary 
 relation. 
 
 When persons stand in a relation to each other of such 
 a nature that the one reposes confidence in the other, or 
 is placed by circumstances under his authority, control or 
 influence, when the question is as to the validity of any 
 transaction between them from which the person in whom 
 confidence is reposed or in whom authority or influence 
 is vested derives advantage, the burden of proving that 
 the confidence, authority or influence was not abused, and 
 that the transaction was in good faith and valid, is on the 
 person in whom such confidence or authority or influence 
 is vested, and the nature and amount of the evidence re- 
 
 1 [See Art. 26, ante.] 
 
 2 [See Art. 71, ante; Grimes v. miliary, 150 111. 141; Hansen v. 
 Amer. Ins. Co., 57 la. 741.]
 
 >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 
 
 (<r) A borough corporation proved a prescriptive right to a several 
 oyster fishery in a navigable tidal river. The free inhabitants of an- 
 cient tenements in the borough proved that from time immemorial and 
 claiming as of right they had dredged for oysters, within the limits of 
 the fishery, from February 2 to Easter Eve in each year. The court 
 presumed a grant from the Crown to the corporation before legal 
 memory of a several fishery, with a condition in it that the free in- 
 habitants of ancient tenements in the borough should enjoy such a 
 right. 2 
 
 (d) A buikfs a windmill near B's land in 1829, and enjoys a free cur- 
 rent of air to it over B's land as of right, and without interruption till 
 i860. This enjoyment raises no presumption of a grant by B of a 
 right to such a current of air, as it would not be natural for B to inter- 
 rupt it. 3 
 
 (<?) No length of enjoyment (by means of a deep well), of water 
 percolating through underground undefined passages, raises a pre- 
 sumption of a grant from the owners of the ground under which the 
 water so percolates of a right to the water. 4 
 
 1 Leconfichi v. Lonsdale, L. R. 5 C. P. 657. 
 
 ' J Goodman v. Mayor of Sa/tas/i, 6 App. Cas. 633 (see especially 650). 
 Lord Blackburn dissented on the ground that such a grant would not 
 have been legal (pp. 651-662). See same case in 6 Q. B. D. 106, and 
 5 C. P. D. 431, both of which were reversed. 
 
 :; Webb v. Bird, 13 C. B. (N. S ) 841. [As to the reasons upon which 
 this and the following decision are to be supported, see Dalton v. 
 Angus, 6 App. Cas. 796, 798, 824. As the English doctrine that a right 
 to light and air can be gained by prescription is generally discarded 
 in this country, the decision in Webb v. Bird would apply here a for- 
 tiori. See Parker x. Foote, 19 Wend. 309; Gilmore v. Drisccll, viz 
 Mass. 199, 207.] 
 
 4 Chascmore v. Richards 7 H. L. C. 349. [Mayor of Bradford v. 
 Pickles, [1895] A. C. 587; Chatfield v. Wilson, 2S \'t. 49; Wilson v. 
 New Bedford, 108 Mass. 265 ; Frazierv. Brown, 12 O. St. 294 ; Roalh 
 v. Driscoll, 20 Ct. 533 ; Wheatly v. Bough, 25 Pa. 528 ; Ellis v. Dun- 
 can, 21 Barb. 230, 29 N. Y. 466 ; see Phelps v. Nowlen, 72 N. Y. 39.]
 
 Chap. XIV.] THE LAW OF EVIDENCE. 261 
 
 Article ioi.* 
 presumption of regularity and of deeds to complete 
 
 TITLE. 
 
 When any judicial or official act is shown to have been 
 done in a manner substantially regular, it is presumed 
 that formal requisites for its validity were complied with. 1 
 
 When a person in possession of any property is shown 
 to be entitled to the beneficial ownership thereof, there 
 is a presumption 2 that every instrument has been exe- 
 cuted which it was the legal duty of his trustees to exe- 
 cute in order to perfect his title. 3 
 
 * See Note XXXVII. [Appendix], and Macdougall v. Purrier, 3 
 Bligh, N. S. 433. R. v. Cresswell, 1 Q. B. D. (C. C. R.) 446, is a recent 
 illustration of the effect of this presumption. 
 
 1 [ Wood v. Morehouse, 45 N. Y. 368 ; State v. Potter, 52 Vt. 33 ; Mo- 
 Murray's Heirs v. Erie, 59 Pa. 223; Nofire v. U. S., 164 U. S. 657; 
 Piatt v. Grover, 136 Mass. 115 ; Browne// v. Pa/mer, 22 Ct. 107, 119. 
 The maxim in such cases is Omnia prcesumuntur rite esse acta (Id.; 
 Sche//'s Excrs. v. Fanche, 138 U. S. 562). Thus it is presumed that 
 public officers perform their duty and do not exceed their lawful au- 
 thority ; also that corporations act within their lawful powers, etc. (Id. 
 Hoguc v. Corbitt, 156 111. 540; State v. Williams, 99 Mo. 291; Swar- 
 thout v. Panic r, 143 N. Y. 499, 504 ; Sine/air v. Learned, 51 Mich. 335 ; 
 Kent v. Quicksilver Mining Co., 78 N. Y. 159, 183; cf. Murphy v. 
 Chase, 103 Pa. 260 ; Gr. Ev. i. §§ 38, n., 40, n.). As to similar presump- 
 tions from lapse of time, see Gr. Ev. i. § 20 ; Hilton v. Bender, 69 N. Y. 
 
 75-] 
 
 1 Doe d. Hammond v. Cooke, 6 Bing. 174, 179. [Jackson v. Cole, 4 
 Cow. 587 ; Jackson v. Moore, 13 Johns. 513; Lincoln v. French, 105 
 N. Y. 614 ; Perry on Trusts, i. § 349, 4th ed.] 
 
 3 [Other important presumptions are : ( 1) That a previously existing 
 personal relation or state of things continues to exist, until the contrary 
 is shown, as e.g., a relation between parties {Eames v. Eames, 41 N. 
 H. 177); a law {Matter of Huss, 126 N. Y. 537); residence ( Greenfield 
 v. Camden, 74 Me. 56; Nixon v. Palmer, 10 Barb. 175); character 
 (Graham v. Chrystal, 2 Abb. Dec. 263); habits and personal appear- 
 ance (Marston v. Dingier, 88 Me. 546); insanity, if it be of a fixed and
 
 262 A DIGEST OF [Part III. 
 
 Article 102.* 
 
 estoppel by conduct. 
 
 When one person by anything which he does or says, 
 or abstains from doing or saying, intentionally causes or 
 permits another person to believe a thing to be true, and 
 to act upon such belief otherwise than but for that belief 
 
 * See Note XXXVIII. [Appendix], 
 permanent character, and not simply temporary or occasional ( Taylor 
 v. Pegram, 151 111. 107; Wright v. Wright, 139 Mass. 177; Wat/is v. 
 Lnhring, 134 Ind. 447; People v. Lane, 101 Cal. 513; State v. Hay- 
 ward, 62 Minn. 474) ; status (Kidder v. Stevens, 60 Cal. 414); and many 
 other matters (Gr. Ev. i. § 41 ; Cohoes v. D. &°H Canal Co., 134 X. V. 
 397). The presumption is rebuttable. Its force and duration will be 
 affected by the transient or permanent nature of the subject-matter 
 (Donahue v. Coleman, 49 Ct. 464 ; High v. Bk. of Commerce, 103 Cal. 
 525, and cases supra). It has also been often held that there is a 
 legal presumption that life continues (within the usual limits of hu- 
 man existence) until the contrary is shown, or until the presumption 
 of death attaches under the rule stated in Article 99 (Stevens v. Mc- 
 Namara, 36 Me. 176; Shriverv. State, 65 Aid. 278; Montgomery v. 
 Bevans, 1 Sawy. 653); but the modern English and some American 
 authorities regard it as a presumption of fact, to be weighed by the 
 jury with all the evidence in the case bearing upon the probability that 
 life still continues (/// re Pheni's Trusts, L. R. 5 Ch. App. 139; State 
 v. Plym, 43 Minn. 385 ; Comui. v. McGrath, 140 Mass. 296; Whiteley 
 v. Equitable . Issur. Soc, J2 Wis. 170 ; see Art. 95, Illustration (/), ante). 
 
 (2) That the regular course of business in a public office or in the 
 course of trade or conduct of affairs is followed (Gr. Ev. i. §§ 38, 40); 
 zse.g., that letters properly mailed reach their destination (see Art. 13, 
 ante ; - lustin v. Holland, 69 N. Y. 571); that a bill or note found after 
 circulation in the hands of the acceptor or maker has been paid 
 (Crimes v. Hilliary, 150 111. 141; Connelly v. McKean, 64 Pa. 113); 
 that a person having the possession of property is the owner {Rawley 
 v. Brown, 71 X. Y. 85; Anderson v. McCormick, 129 111. 308; Tre- 
 vorrowv. Trevorrow, 65 Mich. 234; McClellan v. St. Paul, etc. R. 
 Co., 58 Minn. 104). These are disputable presumptions, and are 
 often called presumptions of fact (Id.). 
 
 (3) That a man intends the natural and probable consequences of his
 
 Chap. XIV.] THE LAW OF EVIDENCE. 263 
 
 he would have acted, neither the person first mentioned 
 nor his representative in interest is allowed, in any suit 
 or proceeding between himself and such person or his 
 
 acts (Filkins v. People, 69 N. Y. 101 ; State v. Patterson, 116 Mo. 513). 
 The presumption is rebuttable (Roberts v. Buckley, 145 N. Y. 215). 
 
 (4) That, in trials for homicide, malice is to be presumed from the 
 deliberate use of a deadly weapon against another, in the absence of 
 evidence of explanatory circumstances (Comm. v. Hawkins, 3 Gray, 
 463 ; Friederich v. People, 147 111. 310; State v. Hockett, 70 la. 442 ; 
 State v. Mustek, 101 Mo. 260 ; Hale v. Comm., 89 Va. 171, 178 ; State 
 v. Fuller, 1 14 N. C. 885 ; Robinson v. State, 108 Ala. 14 ; Hawthorne 
 v. State, 58 Miss. 778). The presumption is rebuttable (Id.; Tiffany v. 
 Comm., 121 Pa. 165; People v. Wolf, 95 Mich. 625). But in some 
 States such killing with a deadly weapon is simply held to furnish 
 presumptive evidence for the jury of an intent to kill ( Thomas v. 
 People, 67 N. Y. 218 ; People v. Fish, 125 N. Y. 136 ; Newport v. State, 
 140 Ind. 299 ; cf. State v. Earnest, 56 Kan. 31). 
 
 (5) That a wife committing a crime (except treason, murder, and 
 perhaps robbery) in the presence of her husband, acts under his 
 coercion. The presumption is disputable (People v. Ry land, 97 N.Y. 
 126; Comm. v. Moore, 162 Mass. 441; State w.Shee, 13 R. I. 535; 
 State v. Ma. Foo, no Mo. 7). In New York this presumption has 
 been abolished (Penal Code, §24). 
 
 (6) Omnia proesumuntur contra spoliatorem ; hence from the de- 
 struction, suppression or fabrication of evidence, unfavorable in- 
 ferences may be drawn, to the disadvantage of the person committing 
 such acts (Allen v. U. S., 164 U. S. 492, 500; Simes v. Rockwell, 156 
 Mass. 373 ; Eckel v. Eckel, 49 N. J. Eq. 587 ; Winchell v. Edwards, 
 57 111. 41 ; In re Lambie, 97 Mich. 54; Diamond v. Henderson, 47 
 Wis. 172 ; Pomeroy v. Benton, 77 Mo. 86). The presumption may be 
 rebutted (Id.; Drosten v. Mueller, 103 Mo. 624). 
 
 (7) From identity of name, identity of person is, in general, pre- 
 sumable (Aultman v. Ti/nm, 93 Ind. 158; Goodell v. Hibbard, 32 
 Mich. 47 ; People v. Riley, 75 Cal. 98 ; cf. Linck v. Litchfield, 141 111. 
 469); but the contrary may be shown (Id.). 
 
 (8) A debt by record or specialty, if unclaimed or unrecognized for 
 twenty years, is, though the Statute of Limitations does not include 
 such debts, presumed to have been paid ; but the presumption may 
 be rebutted (Barker v. Jones, 62 N. H. 497 ; Fanton v. Middlebrook, 
 50 Ct. 44 ; Gregory v. Comm., 121 Pa. 611). In some States, however, 
 such debts are now included within the Statute of Limitations. IValker 
 V. Robinson, 136 Mass. 280 ; Martin v. Stoddard, 127 N. Y. 61.]
 
 264 A DIGEST OF [Part III. 
 
 representative in interest, to deny the truth of that 
 thing. 1 
 
 When any person under a legal duty to any other per- 
 son to conduct himself with reasonable caution in the 
 transaction of any business neglects that duty, and when 
 the person to whom the duty is owing alters his position 
 for the worse because he is misled as to the conduct of 
 the negligent person by a fraud, of which such neglect is 
 in the natural course of things the proximate cause, the 
 negligent person is not permitted to deny that he acted 
 in the manner in which the other person was led by such 
 fraud to believe him to act. 2 
 
 Illustrations. 
 
 (a) A, the owner of machinery in B's possession, which is taken in 
 execution by C, abstains from claiming it for some months, and con- 
 verses with C's attorney without referring to his claim, and by these 
 means impresses C with the belief that the machinery is B's. C sells 
 the machinery. A is estopped from denying that it is B's. 3 
 
 (o) A, a retiring partner of B, gives no notice to the customers of the 
 firm that he is no longer B's partner. In an action by a customer, he 
 cannot deny that he is B's partner. 4 
 
 1 [Dickerson v. Colgrove, ioo U. S. 578 ; Morgan v. Railroad Co., 
 96 Id. 716 ; Carroll v. M. &* R. R. Corp., 1 1 1 Mass. 1 ; Chase s Ap- 
 peal, 57 Ct. 236 ; Andrews v. AZtna Ins. Co., 85 N. Y. 334 ; Union 
 Dime Sav. hist. v.Wilmot, 94 N. Y. 221 ; Mutual Life Ins. Co. v. 
 Norris, 31 N. J. Eq. 583 ; Slocumb v. Railroad Co., 57 la. 675 ; Stevens 
 v. Ludlum, 46 Minn. 160 ; Bates v. Swiger, 40 W. Va. 421.] 
 
 8 [Putnam v. Sullivan, 4 Mass. 45 ; Chapman v. Rose, 56 N. Y. 137 ; 
 Ruddell v. Fhalor, 72 Ind. 533 ; Ross v. Doland, 29 O. St. 473 ; Shirts 
 v. Overjohn, 60 Mo. 305 ; cf. Nance v. Lary, 5 Ala. 370 ; Nat. Bk. 
 v. Zeims, 93 la. 140. An estoppel may be created by silence, when 
 there is a duty and opportunity to speak. Leather Mfrs. Bk. v. 
 Holley, 117 U. S. 96 ; Thompson v. Simpson, 128 N. Y. 270 ; O'Mulcahy 
 v. Holley, 28 Minn. 31 ; Allen v. Shaw, 61 N. H. 95.] 
 
 :i Pickardv. Sears, 6 A. & E. 469, 474. [See Thompson v. Blanchard, 
 4 N. Y. 303 ; Fall Riv. Bk. v. Buffinton, 97 Mass. 500 ; Miles v. Lefi, 
 60 la. 168 ; Reiss v. Hanchett, 141 111. 419 ; Putnam v. Tyler, 117 Pa. 
 570 ; cf. Bray v. Flickinger, 69 la. 167.] 
 
 4 (Per Parke, B.) Freetnan v. Cooke, 2 Ex. 661. [Elmira, etc. Co.
 
 Chap. XIV.] THE LAW OF EVIDENCE. 265 
 
 {c) A sues B for a wrongful imprisonment. The imprisonment was 
 wrongful, if B had a certain original warrant ; rightful, if he had only 
 a copy. B had in fact a copy. He led A to believe that he had the 
 original, though not with the intention that A should act otherwise 
 than he actually did. B may show that he had only a copy and not 
 the original. 1 
 
 {d) A sells eighty quarters of barley to B, but does not specifically 
 appropriate to B any quarters. B sells sixty of the eighty quarters to 
 C. C informs A, who assents to the transfer. C being satisfied with 
 this, says nothing further to B as to delivery, B becomes bankrupt. 
 A cannot, in an action by C to recover the barley, deny that he holds 
 for C on the ground that, for want of specific appropriation, no prop- 
 erty passed to B. 2 
 
 (e) A signs blank cheques and gives them to his wife to fill up as 
 she wants money. A's wife fills up a cheque for ,£50 2s. so carelessly 
 that room is left for the insertion of figures before the "50 "and for 
 the insertion of words before the "fifty." She then gives it to a clerk 
 of A's to get it cashed. He writes 3 before "50" and "three hundred 
 and" before "fifty." A's banker pays the cheque so altered in good 
 faith. A cannot recover against the banker. 3 
 
 v. Harris, 124 N, Y. 280; Backus v. Taylor, 84 Ind. 503 ; Lovejoy v. 
 Spafford, 93 U. S. 430. So one who has permitted himself to be held 
 out to the world as a partner in a firm is estopped from denying that 
 he is one as against those who have dealt with the firm in the bona 
 fide belief that he is a partner. Fletcher v. Pullen, 70 Md. 205 ; 
 Brown v. Grant, 39 Minn. 404.] 
 
 1 Howard v. Hudson, 2 E. & B. 1. [See Audenried v. Betteley, 3 
 Allen, 382.] 
 
 2 Knights v. Wiffen, L. R. 5 Q. B. 660. [See Kent's Comm. iii. 85, 
 note 1 (14th ed.); Barnard v. Campbell, 55 N. Y. 456; Anderson v. 
 Read, 106 N. Y. 333, 353.] 
 
 3 Young v. Grote, 4 Bing. 253. [This case has been much considered 
 of late and its authority is carefully limited to its special facts {Green- 
 field Sav. Bk. v. Stowell, 123 Mass. 196; Lehman v. Central R. Co., 
 12 F. R. 595 ; McGrath v. Clark, 56 N. Y. 34 ; Holmes v. Trumpcr, 
 22 Mich. 427 ; cf. Leas v. Walls, 101 Pa. 57 ; Yocum v. Smith, 63 111. 
 321; Belknap v. Nat. Bk. of N. America, 100 Mass. 376; Craw- 
 ford v. West Side Bk., 100 N. Y. 50). In a recent English case it is 
 shown to be doubtful on what ground Young v. Grote was decjded, 
 whether on the theory of estoppel arising out of the special duty of a 
 customer to protect his banker against danger from " raised" checks,
 
 266 A DIGEST OF [Part III. 
 
 (/) A railway company negligently issues two delivery orders for 
 the same wheat to A, who fraudulently raises money from B as upon 
 two consignments of different lots of wheat. The railway is liable to 
 B for the amount which A fraudulently obtained by the company's 
 negligence. 1 
 
 (g) A carelessly leaves his door unlocked, whereby his goods are 
 stolen. He is not estopped from denying the title of an innocent pur- 
 chaser from the thief. 2 
 
 Article 103. 
 estoppel of tenant and licensee. 
 
 No tenant, and no person claiming through any tenant, 
 of any land or hereditament of which he has been let into 
 possession, or for which he has paid rent, is, till he has 
 given up possession, permitted to deny that the landlord 
 had, at the time when the tenant was let into possession 
 or paid the rent, a title to such land or hereditament ; 3 
 
 or on the ground that any one who signs a blank check authorizes the 
 person in whose hands it is to fill it up as his agent (Scholfield v . Earl 
 of Londesborough, [1896] A. C. 514; see p. 218, n. 2, ante). In this recent 
 case and in similar American cases the sum stated in a bill or note was 
 increased by the filling in of unwritten spaces by a forger, but the ac- 
 ceptor or maker was held not liable. The proximate cause of loss to 
 the purchaser of the bill or note was the forgery. Burrows v. Klunk, 
 70 Md. 451; Knoxville Nat. Bk. v. Clark, 51 la. 264 ; Simmons v. At- 
 kinson, 69 Miss. 862 ; and cases supra.] 
 
 1 Coventry v. Gt. Eastern Ry. Co., 1 1 Q. B. D. 776. 
 
 2 Per Blackburn, J., in Swan v. N. B. Australasian Co., 2 H. & C. 
 181. See Baxendale v. Bennett, 3 Q. B. D. 525. The earlier cases on 
 the subject are much discussed mjorden v. Money, 5 H. & C. 209-16, 
 234-5. [Cf. People v. Bank N. America, 75 N. Y. 547 ; Lowery v. 
 Telegraph Co., 60 N. Y. 198 ; Knox v. Eden Musie Co., 148 N. Y. 441 ; 
 Dist. of Columbia v. Cornell, 130 U. S. 655 ; Zell's Appeal, 103 Pa. 344.] 
 
 3 Doe v. Barton, 1 1 A. & E. 307 ; Doe v. Smyth, 4 M. & S. 347 ; Doe 
 v. Pegg, I T. R. 760, note. [Stott v. Rutherford, 92 U. S. 107 ; Prevot 
 v. Lawrence, 51 N. Y. 219 ; Tilyou v. Reynolds, 108 N. Y. 558 ; Streeter 
 v. Ilsley, 147 Mass. 141; Sexton v. Car ley, 147 111. 269; Derrick v. 
 Luddy,6\ \'t. 462; Washb. R. P. i. 588 601, 5th ed. ; cf. Robertson v.
 
 Chap. XIV.] THE LAW OF EVIDENCE. 267 
 
 and no person who came upon any land by the license of 
 the person in possession thereof, is, whilst he remains on 
 it, permitted to deny that such person had a title to such 
 possession at the time when such license was given. 1 
 
 Article 104. 
 
 estoppel of acceptor of bill of exchange. 
 
 No acceptor of a bill of exchange is permitted to deny 
 the signature of the drawer or his capacity to draw, or if 
 the bill is payable to the order of the drawer, his capacity 
 to indorse the bill, though he may deny the fact of the 
 indorsement ; 2 nor if the bill be drawn by procuration, 
 the authority of the agent, by whom it purports to be 
 drawn, to draw in the name of the principal, 3 though he 
 may deny his authority to indorse it. 4 If the bill is ac- 
 cepted in blank, the acceptor may not deny the fact that 
 the drawer indorsed it. 5 
 
 Article 105. 
 
 estoppel of bailee, agent, and licensee. 
 
 No bailee, agent, or licensee is permitted to deny that 
 the bailor, principal, or licensor, by whom any goods were 
 
 Pickreh, 109 U. S. 608. As to the limitations of the doctrine, see Cor- 
 rigan v. Chicago, 144 111. 537.] 
 
 1 Doe v. Baytup, 3 A. & E. 188. [Glynn v. George, 20 N. H. 114; 
 Hamilton, etc., Co. v. Railroad Co., 29 O. St. 341.] 
 
 2 Garland v./acomd, L. R. 8 Ex. 216. [ White v. Continental Nat. 
 Bk., 64 N. Y. 316; Marine Nat. Bk. v. Nat. City Bk., 59 N. Y. 67; 
 Hoffman v. Bank of Milwaukee, 12 Wall. 181; National Bank v. 
 Bangs, 106 Mass. 441. See as to this whole Article, Daniel Neg. Inst. 
 i- §§ 532-541.] 
 
 3 Sanderson v. Coleman, 4 M. & G. 209. 
 
 4 Robinson v. Yarrow, 7 Tau. 455. 
 
 6 L. &* S. IV. Bank v. Wentworth, 5 Ex. D. 96. [In this case the
 
 268 A DIGEST OF [Pari !!! 
 
 entrusted to any of them respectively, was entitled to 
 those goods at the time when they were so entrusted.' 
 
 Provided that any such bailee, agent, or licensee, may 
 show that he was compelled to deliver up any such goods 
 to some person who had a right to them as against his 
 bailor, principal, or licensor, or that his bailor, principal, 
 or licensor, wrongfully and without notice to the bailee, 
 agent, or licensee, obtained the goods from a third person 
 who has claimed them from such bailee, agent, or licen- 
 see. 2 
 
 Every bill of lading in the hands of a consignee or in- 
 dorsee for valuable consideration, representing goods to 
 have been shipped on board a vessel, is conclusive proof 
 of that shipment as against the master or other person 
 signing the same, notwithstanding that such goods or 
 some part thereof may not have been so shipped, unless 
 such holder of the bill of lading had actual notice at the 
 time of receiving the same that the goods had not been 
 in fact laden on board, provided that the master or other 
 person so signing may exonerate himself in respect of 
 such misrepresentation by showing that it was caused 
 without any default on his part, and wholly by the fraud 
 
 drawer's signature and the indorsement were written upon the bill 
 after it had been accepted in blank. "The blank acceptance is an 
 acceptance of the bill which is afterwards put upon it." Schultz v. 
 Astley, 2 Bing. N. C. 544 ; cf. Weyerhauser v. Dun, 100 N. Y. 150.] 
 
 1 {Sinclair v. Murphy, 14 Mich. 392; Osgood v. Nichols, 5 Gray, 
 420; Roberts v. Noyes, 76 Me. 590; Bricker v. Stroud, 56 Mo. App. 
 183 ; cf. Jackson v. Allen, 120 Mass. 64, 79.] 
 
 2 Dixon v. Hammond, 2 B. & A. 313 ; Crossley v. Dixon, 10 H. L. C. 
 293; Gosling v. Birnie, 7 Bing. 339; Hardman v. ll'ilcock,g Bing. 
 382 ; Biddle v. Bond, 34 L. J. Q. B. 137, [6 B. & S. 225] ; Wilson v. An- 
 derton, 1 B. & Ad. 450. As to carriers, see Sheridan v. New Quay, 4 
 C. B. (N. S.) 618. [The Idaho, 93 U. S. 575 ; Western Trans. Co. v. 
 Barber, 56 N. Y. 544; King v. Richards, 6 Whart. 418; Roberts v. 
 Noyes, 76 Me. 590 ; Dusky v. Rudder, 80 Mo. 400 ; Singer Mfg. Co. v. 
 King, 14 R. I. 511.]
 
 Chap. XIV.] THE LAW OF EVIDENCE. 269 
 
 of the shipper or of the holder, or some person under 
 whom the holder holds. 1 
 
 ' 18 & 19 Vict. c. hi, s. 3. [But it is held that a ship-owner is not 
 estopped by the signature of a bill of lading by the master from show- 
 ing that the goods or some of them were never actually put on board. 
 Brown v. Powell Co., L. R. 10 C. P. 562 ; Cox v. Bruce, 18 Q. B. D. 
 147 ; see McLean v. Fleming, L. R. 2 Sc. App. 128. 
 
 The law of this country is not governed by statutes like the above. 
 The general rules here in force are stated in Sears v. Wingate, 3 Allen, 
 103: "(1) The receipt in a bill of lading is open to explanation be- 
 tween the master and the shipper of the goods. (2) The master is es- 
 topped, as against a consignee who is not a party to the contract and 
 as against an assignee of the bill of lading, when either has taken it 
 for a valuable consideration upon the faith of the acknowledgments 
 which it contains, to deny the truth of the statements to which he has 
 given credit by his signature, so far as those statements relate to mat- 
 ters which are or ought to be within his knowledge. (3) When the 
 master is acting within the limits of his authority, the owners are es- 
 topped in like manner with him ; but it is not within the general scope 
 of the master's authority to sign bills of lading for any goods not actu- 
 ally received on board." There is, however, a noteworthy difference 
 of opinion in regard to the rule stated in this last sentence. In the 
 U. S. Supreme Court and in a number of the States this rule is adopted, 
 and it isiheld that if the master does sign a bill of lading for goods 
 not actually received on board, his act does not bind the owner of the 
 ship even in favor of an innocent purchaser {Pollard v. Vinton, 105 
 U. S. 7 ; Nat. Bk. of Commerce v. Chicago, etc. R. Co., 44 Minn. 224; 
 Bait. &* O. R. Co. v. Wilkens, 44 Md. 11 ; Dean v. King, 22 O. St. 
 118; La. Nat. Bk. v. Laveille, 52 Mo. 380). But in New York and 
 some other States, if the master acts within his apparent authority 
 in such a case, the owner is held bound by his act on the ground of 
 estoppel {Bk. of Batavia v. N. Y. etc. R. Co., 106 N. Y. 195 ; Brooke 
 v.N. Y. etc. R. Co., 108 Pa. 529 ; Sioux City, etc. R. Co. v. First Nat. 
 Bk., 10 Neb. 556; Sav. Bk. v. Atchison, etc. R. Co., 20 Kan. 519; cf. 
 Hanover Bk. v. Anier. Dock Co., 148 N. Y. 612). These same rules 
 are applied to the bills of lading of railroad companies. Id.; Fried- 
 lander v. Texas, etc. R. Co., 130 U. S. 416.]
 
 270 A DIGEST OF [Part III. 
 
 CHAPTER XV. 
 OF THE COMPETENCY OF WITNESSES* 
 
 Article 106. 
 
 who may testify. 
 
 All persons are competent to testify in all cases except 
 as hereinafter excepted. 1 
 
 *See Note XXXIX. [Appendix]. 
 1 [The common law rules disqualifying parties and persons interested 
 in the e7>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<ted to testify do not enable husband and wife to be witnesses ; there 
 must be special acts for this purpose. Lucas v. Brooks, 18 Wall. 436; 
 Ah. Ev. i. §430.] 
 
 1 16 & 17 Vict. c. 83, s. 3. It is doubtful whether this would apply to 
 a widower or divorced person, questioned after the dissolution of the 
 marriage as to what had been communicated to him whilst it lasted. 
 
 [Sounder modern statutes in this country, it is the general rule that 
 confidential communications between husband and wife cannot be 
 disclosed by either (see Art. 109, note). These do not include all com- 
 munications made between husband and wife, but only "such as are
 
 280 A DIGEST OF [Part III. 
 
 Article hi.* 
 judges and advocates privileged as to certain questions. 
 
 It is doubtful whether a judge is compellable to testify- 
 as to anything which came to his knowledge in court as 
 
 * See Note XLII. [Appendix], 
 expressly made confidential, or such as are of a confidential nature or 
 induced by the marital relation " {Parkhurst v. Berdell, 1 10 N. Y. 386 ; 
 Warner v. Press Co., 132 N. Y. 181 ; Seitz v. Seitz, 170 Pa. 71 ; Schmied 
 v. Frank, 86 Ind. 250 ; cf. Wood v. Chetivood, 27 N. J. Eq. 311; U. S. 
 v. Guitean, 1 Mackey, 498). Some statutes omit the word "confiden- 
 tial," specifying only " communications " as privileged, including there- 
 fore those which are and those which are not confidential {Campbell 
 v. Chace, 12 R. I. 333 ; Leppla v. Tribune Co., 35 Minn. 310 ; People v. 
 Miillings, 83 Cal. 138 ; Comm. v. Sapp, go Ky. 580; S. P. in Mass. as 
 to "private" conversations, Comm. v. Hayes, 145 Mass. 289). "Com- 
 munications" includes both oral and written statements {People v. Hayes, 
 140 N. Y. 484 ; Orrv. Miller, 98 Ind. 436), while "conversations" does 
 not include writings ( Comm. v. Caponi, 155 Mass. 534). When oral com- 
 munications are overheard, the hearer {Comm. v. Griffin, 1 10 Mass. 181; 
 Gannon v. People, 127 111. 507 ; State v. Gray, 55 Kan. 135) or the hus- 
 band or wife {Lyon w.Prouty, 154 Mass. 488 ; Sessions v. Trevitt, 39 O. 
 St. 259 ; contra, Ca??ipbell v. Chace, 12 R. I. 333 ; cf. Hopkins v. Grim- 
 shaw, 165 U. S. 342) may be required to disclose them. So written 
 communications may be used as evidence, if they have been trans- 
 ferred to the hands of third persons, not agents or representatives of 
 the recipient {People v. Hayes, 140 N. Y.484; State v. Buffington, 20 Kan. 
 599; State v. Hoyt, 47 Ct. 518); but they are privileged, if in the pos- 
 session of the recipient's attorney or executor {Selden v. State, 74 Wis. 
 271; Bowman v. Patrick, 32 F. R. 368; cf. Brown v. Brown, 53 Mo. 
 App 453)- The death of either spouse or a divorce does not destroy 
 the privilege as to communications between husband and wife {Hitch- 
 cock v. Moore, 70 Mich. 112; O 'Bryan v. Allen, 95 Mo. 68 ; Hopkins v. 
 Grimshaw, 165 U. S. 342 ; Stanley v. Montgomery, 102 Ind. 102 ; Goelz 
 v. Goelz, 157 111. 33). When a husband is made use of by others to per- 
 petrate a fraud upon his wife, a court of equity may, in order to expose 
 the fraud, permit both to testify to their conversations about the mat- 
 ter. Moeckel v. Heim, 134 Mo. 576.]
 
 Chap. XV.] THE LAW OF EVIDENCE. 281 
 
 such judge. 1 It seems that a barrister cannot be compelled 
 
 1 R. v. Gazard, 8 C. & P. 595. [A judge sitting alone to try a cause 
 cannot be a witness on the same trial ; nor when he sits with others and 
 his presence is necessary to a duly organized court, can he properly 
 testify in the cause on trial {Dabney v. Mitchell, 66 Ala. 495 ; Rogers 
 v. State, 60 Ark. 76 ; Baker v. Thompson, 89 Ga. 486 ; People v. Miller, 
 2 Park. Cr. 197 ; see McMillen v. Andrews, 10 O. St. 112). But if he 
 does testify when he sits with others, and no exception is taken there- 
 to, the judgment of the court is not invalidated {People v. Dohring, 
 59 N. Y. 374 ; Wright v. McCampbell, 75 Tex. 644). These rules 
 apply also to other judicial officers, as referees, etc. {Morss v. Morss, 
 11 Barb. 510; see Gr. Ev. i. §§ 249, 364). A judge's testimony as to 
 the grour.ds of a former decision rendered by him has also been ex- 
 cluded {Agan v. Hey, 30 Hun, 591 ; but see Supples v. Cannon, 44 Ct. 
 430; Taylor v. Larkift, 12 Mo. 103; cf. Barrett v. fames, 30 S. Car. 
 329 ; Appeal of Allen, 38 Atl. R. (Ct.), 701). 
 
 A justice may be a witness to verify his minutes or docket entries, 
 in proving the testimony of a witness in a former case tried before him 
 {Huff v. Bennett, 4 Sandf. 120, 6 N. Y. 337; Spalding v. Lowe, 56 Mich. 
 366 ; Zitske v. Goldberg, 38 Wis. 216 ; Welcome v. Batchelder, 23 Me. 
 85 ; Schallv. Miller, 5 Whart. 156 ; cf. Corby M.Wright, 9 Mo. App. 
 5); or in proving the proceedings before him or the judgment rendered 
 {Pollock v. Hoag, 4 E. D. Sm. 473 ; Boomer v. Laine, 10 Wend. 526 ; 
 McGrath v. Seagrave, 2 Allen, 443 ; Hibbs v. Blair, 14 Pa. 413) ; but 
 his entries, not so verified, are not good evidence {Schafer v. Schafer, 
 93 Ind. 586 ; State v. Whelehon, 102 Mo. 17). So a justice may testify 
 as to the identity of an issue on trial with one formerly tried before 
 him, if his testimony does not contradict the record {State v. Water- 
 man, 87 la. 255 ; Black v. Miller, 75 Mich. 323) ; or as to admissions 
 or contradictory evidence in testimony previously given before him 
 {State v. Van Winkle, 80 la. 15 ; State v. Duffy, 57 Ct. 525) ; or upon 
 what papers process was issued by him {Heyward ' s Case, 1 Sandf. 701), 
 or as to various collateral matters {Highberger v. Stiffler, 21 Md. 338 ; 
 fackson v. Humphrey, 1 Johns. 498). 
 
 Auditors, arbitrators, etc., may not give testimony to impeach their 
 report or award {Packard v. Reynolds, 100 Mass. 153 ; Schmidt v. 
 Glade, 126 111. 485 ; Ellison v. Weathers, 78 Mo. 115 ; see Briggs v. 
 Smith, 20 Barb. 409; aliter, in cases of fraud, Withington v. Warren, 
 10 Met. 431 ; Pulliam v. Pensoncau, 33 111. 375). But they may testify 
 as to matters openly occurring before them on the hearing, including 
 admissions of a party, etc. {Calvert v. Friebus, 48 Md. 44 ; Tobin v. 
 fones, 143 Mass. 448 ; Graham v. Graham, 9 Pa. 254) ; or in support
 
 282 A DIGEST OF [Part III. 
 
 to testify as to what he said in court in his character of a 
 barrister. 1 
 
 Article 112. 
 
 evidence as to affairs of state. 
 
 No one can be compelled to give evidence relating to 
 any affairs of state, or as to official communications be- 
 tween public officers upon public affairs, unless the officer 
 at the head of the department concerned permits him to 
 do so, 2 or to give evidence of what took place in either 
 
 or explanation of their award, or as to collateral facts (Gr. Ev. ii. § 78 ; 
 Wh. Ev. i. § 599; Converse v. Colton, 49 Pa. 346; Hale v. Huse, 10 
 Gray, 99 ; Robinson v. Shanks, 118 Ind. 125; Duke of Bucclengh v. 
 Metr. Bd. of Works, L. R. 5 E. & I. App. 418). 
 
 A quasi-judicial officer, as a merchant appraiser under tariff laws, 
 may not testify to his own neglect of duty (Oelberman v. Mcrritt, 19 
 F. R. 408). In some States, also, an officer who has taken an ac- 
 knowledgment of a deed is not a competent witness to prove facts 
 impeaching his certificate. Mutual Ins. Co. v. Corey, 135 N. Y. 334; 
 Stone v. Montgomery, 35 Miss. 83.] 
 
 1 Curry v. Walter, 1 Esp. 456. [A person is a competent witness in 
 a case in which he is acting as attorney or counsel ; but the practice 
 is, in general, disapproved, and should only be resorted to in case of 
 necessity, as where it is requisite to prevent injustice (Gr. Ev. i. § 364 ; 
 French v. Hall, 1 19 U. S. 152 ; Freeman v. Fogg, 82 Me. 408 ; Con- 
 nelly v. Straw, 53 Wis. 645 ; Sebree v. Smith, 2 Ida. 330 ; Little v. 
 McKcon, 1 Sandf. 607 ; Follansbee v. Walker, 72 Pa. 228 ; Potter v. 
 Ware, 1 Cush. 519; Branson v. Caruthers, 49 Cal. 374; Morgan v. 
 Roberts, 38 111. 65). The fact of his being attorney in the case, or that 
 his fee is contingent upon the result, goes to his credibility, not to his 
 competency (Thon v. Rochester R. Co., 83 Hun, 443 ; C. B. U. P. R. 
 Co. v. Andrews, 41 Kan. 370 ; Moats v. Rymer, 18 \V. Va. 642). So 
 the practice is discountenanced of a lawyer's being his own witness, 
 when he is acting as his own client. Thresher v. Stonington Bk., 68 
 Ct. 201.] 
 
 2 Beatson v. Skene, 5 H. & N. 838. [Cf. Hennessy v. Wright, 21 Q. B. 
 D. 509. So in this country, the President, the governors of the several
 
 Chap. XV.] THE LAW OF EVIDENCE. 283 
 
 House of Parliament, without the leave of the House, 
 though he may state that a particular person acted as 
 Speaker. 1 
 
 Article 113. 
 information as to commission of offences. 
 
 In cases in which the government is immediately con- 
 cerned no witness can be compelled to answer any ques- 
 tion, the answer to which would tend to discover the names 
 of persons by or to whom information was given as to the 
 commission of offences. 2 
 
 In ordinary criminal prosecutions it is for the judge to 
 decide whether the permission of any such question would 
 or would not, under the circumstances of the particular 
 case, be injurious to the administration of justice. 3 
 
 States, and their cabinet officers, are not bound to produce papers or 
 disclose information committed to them, in a judicial inquiry, when in 
 their own judgment the disclosure would on public grounds be inex- 
 pedient (Gr. Ev. i. § 251 ; Appeal of Hartranft, 85 Pa. 433 ; Thompson 
 v. German, etc. R. Co., 22 N. J. Eq. in; cf. Totten v. U. S., 92 U. S. 105). 
 Nor without permission of government can other persons be compelled 
 to make such disclosures (see Worthington v. Scribner, 109 Mass. 487). 
 A foreign ambassador in the United States is not bound to obey a 
 subpoena, and the same rule is sometimes, by treaty, made applicable 
 to foreign consuls, hi re Dillon, 7 Sawy. 561 ; U. S. v. Trumbull, 48 
 F. R. 94.] 
 
 1 Chubb v. Salomons, 3 C. & K. 77 ; Plunkett v. Cobbett, 5 Esp. 136. - 
 
 2 [At this point Mr. Stephen adds a special rule of the English law, 
 not applicable here. It will be found in the Appendix, Note LII.] 
 
 3 R. v. Hardy, 24 S. T. 811; A. G. v. Bryant, 15 M. & W. 169 ; R. v. 
 Richardson, 3 F. & F. 693. [Gr. Ev. i. § 250 ; Marks v. Bey/us, 25 Q. 
 B. D. 494 ; U. S. v. Moses, 4 Wash. C. C. 726 ; Vogelv. Gruaz, 1 10 U. S. 
 311 ; People v. Laird, 102 Mich. 135 ; State v. Soper, 16 Me. 293; Worth- 
 ington v. Scribner, 109 Mass. 487. This last case maintains that the 
 assent of the government is required before a witness can disclose 
 such information, and R. v. Richardson is questioned.]
 
 284 A DIGEST OF [Part III. 
 
 Article 114. 
 competency of jurors. 
 
 A petty juror may not, 1 and it is doubtful whether a 
 grand juror may, give evidence as to what passed be- 
 
 1 Vaise v. Delaval, 1 T. R. 11; Burgess v. Langley, 5 M. & G. 722. 
 [Gr. Ev. i. § 252 a ; Woodward v. Leavitt, 107 Mass. 453; Rowe v. Can- 
 ney, 139 Mass. 41; Comm. v. White, 147 Mass. 76; Dalrymple v. Wil- 
 liams, 63 N. Y. 361 ; State v. Pike, 65 Me. in; Hutchinson v. Consum- 
 ers' Coal Co., 36 N. J. L. 24. It is a general rule, often applied upon 
 motions for a new trial, that the affidavits or testimony of jurors are 
 not admissible to impeach their own verdict, as e.g., by showing their 
 mistakes or misconduct, or their improper methods of reaching a ver- 
 dict, or the motives which influenced them, or what was said or done 
 in their deliberations, or that they misunderstood the instructions of 
 the court or the effect of their verdict, etc. {Bridgewater v. Plymouth, 
 97 Mass. 382 ; Williams v. Montgomery, 60 N. Y. 648 ; Meade v. Smith, 
 16 Ct. 346; Shepherd \ . Camden, 82 Me. 535 ; Taylor v. Garnett, no 
 Ind. 166 ; Sanitary District v. Cullerton, 147 111. 385 ; People v. Stimer, 
 82 Mich. 17 ; State v. Wood, 124 Mo. 412 ; People v. Kloss, 115 Cal. 567 ; 
 for a full collection of cases, see 24 Am. Dec. 475 ; 12 Id. 142); nor are 
 statements of like character made by them out of court after the trial 
 provable {Comm. v. Meserve, 156 Mass. 61; Warren v. Spencer Co., 
 143 Mass. 155 ; State v. Cooper, 85 Mo. 256). But their testimony has 
 been received to support or establish their verdict, which has been at- 
 tacked or impeached by evidence aliunde, or to exculpate them from 
 alleged misconduct {Peck v. Brewer, 48 111. 54; People v. Hunt, 59 
 Cal. 430; Clement v. Spear, 56 Vt. 401; Chicago, etc. R. Co. v.Mc- 
 Daniel, 134 Ind. 166; State v. Rush, 95 Mo. 199), though some 
 authorities exclude even such evidence, when it discloses the conduct 
 or grounds of action of the jurors in their deliberations ( Woodward v. 
 Leavitt, supra; Mattox v. U. S., 146 U. S. 140; contra, Knight v. 
 Epson, 62 N. H. 356 ; Ketinedy v. Kennedy, 18 N. J. L. 450). Jurors 
 may also give evidence in denial or explanation of acts or declarations 
 made by them outside of the jury room, which are relied upon to 
 show bias or prejudice {Chemical Light Co. v. Howard, 150 Mass. 
 495 ; State v. Harrison, 36 W. Va. 729); or to show the identity of 
 the subject-matter in different actions, when this is not disclosed by 
 the record (Stap/eton v. King, 40 la. 278; Follansbce v. Walker, 74 
 Pa. 306; see Packet Co. v. Sickles, 5 Wall. 580); or to show a juror's
 
 Chap. XV.] THE LAW OF EVIDENCE. 285 
 
 tween the jurymen in the discharge of their duties. 1 It is 
 also doubtful whether a grand juror may give evidence 
 as to what any witness said when examined before the 
 grand jury. 
 
 Illustration. 
 [Upon a motion for a new trial, the moving party offers in evi- 
 dence the affidavits of some of the jurors who sat upon the original 
 trial that they arrived at their verdict by agreeing that each juror 
 
 acts while separated from his fellows, or that he was improperly ap- 
 proached outside of the jury room by a party or witness, etc. {HeJJron 
 v. Gallupe, 55 Me. 563; Johnson v. Witt, 138 Mass. 79); or to show 
 that the verdict was wrongly announced in court by the foreman or 
 was wrongly entered {Peters v. Fogarty, 55 N. J. L. 386 ; Dalrymple 
 v. Williams, 63 N. Y. 361); or to show what testimony was given on a 
 former trial {Hewett v. Chapman, 49 Mich. 4); and even in some 
 States to impeach a verdict for grounds not essentially inherent 
 therein (Swails v. Cissna, 61 la. 693 ; Brothers v. Jasper, 27 Kan. 770 ; 
 Harris v. Slate, 24 Neb. 803; cf. Mattox v. U. S., 146 U. S. 140). 
 A juror may be a witness upon the same trial in which he is acting as 
 juror. Howserx. Comm., 51 Pa. 332; People v. Dohring, 59 N. Y, 
 374, 378; Schmidt v. N. Y. etc. R. Co., 1 Gray, 529; White v. State, 
 73 Miss. 50 ; State v. Vari, 35 S. Car. 175 ; N. Y. Code Cr. Pro. § 413 ; 
 cf. Richards v. State, 36 Neb. 17.] 
 
 1 1 Ph. Ev. 140 ; T. E. s. 863. [It is the general rule in this country 
 that a grand juror cannot give such testimony as to their deliberations, 
 proceedings, votes, etc. (Gr. Ev. i. § 252 ; Wh. Ev. i. § 601 ; State v. 
 Hamlin, 47 Ct. 95; People v. Hulbut, 4 Den. 133; State v. Davis, 41 la. 
 311 ; Lovelandv. Cooley, 59 Minn. 259; State v. Comeau, 48 La. Ann. 
 249; N. Y. Code Cr. Pro. § 265 ; Mass. Pub. St. c. 213, s. 13) ; nor can 
 persons who were present in the grand jury room by lawful authority, 
 as the prosecuting attorney, the clerk, etc. {Gitchell v. People, 146 111. 
 1 75 ; State v. Johnson, 1 1 5 Mo. 480 ; but see Stale v. Grady, 84 Mo. 220). 
 But grand jurors, it is now generally held, may testify whether a par- 
 ticular person did or did not give evidence before them {Comm. v. 
 Hill, 11 Cush. 137; People v. Northey, 77 Cal. 619); or who was the 
 prosecutor {Huidckoper v. Cotton, 3 Watts, 56) ; or, in impeachment 
 of a witness's credibility, may disclose his testimony before them, in 
 order to show that it differed from that given before the petty jury 
 {Comm. v. Mead, 12 Gray, 167 ; State v. Benner, 64 Me. 267 ; Stale v. 
 Wood, 53 N. H. 484 ; Gordon v. Comm., 92 Pa. 216 ; Burdick v. Hunt,
 
 286 A DIGEST OF [Part III. 
 
 should write down the sum which he wished to give as damages, that 
 the aggregate amount should be divided by twelve, and that the sum 
 so ascertained should be given as the amount of their verdict. Though 
 such a verdict is void, the affidavits of the jurors are not admissible 
 to show its invalidity.] ' 
 
 Article 115.* 
 
 PROFESSIONAL COMMUNICATIONS. 
 
 • No legal adviser is permitted, whether during or after 
 the termination of his employment as such, unless with 
 
 * See Note XLIII. [Appendix]. 
 43 Ind. 381; Bressler v. People, 117 111. 422 ; State v. Thomas, 99 Mo. 
 235 ; State v. Brown, 28 Or. 147; Pellum v. State, 89 Ala. 28; N. Y. 
 Code Cr. Pro. § 266) ; or to show a witness's perjury, confessions, or vol- 
 untary statements, made before the grand jury (Id.; U. S. v. Negro 
 Charles, 2 Cr. C. C. 76 ; State v. Coffee, 56 Ct. 399 ; Izer v. State, jj Md. 
 no; State v. Carroll, 85 la. 1; State v. Moran, 15 Or. 262 ; Covim. v. 
 Scowden, 92 Ky. 120 ; Jenkins v. Stale, 35 Fla. 737 ; Bishop's New Cr. 
 Pro. §§ 857, 858); or, in an action for malicious prosecution, to disclose 
 the evidence given against plaintiff before the grand jury {Hunter v. 
 Randall, 69 Me. 183; contra, Kennedy v. Holladay, 105 Mo. 24; cf. 
 Owens v. Owens, 81 Md. 518). It is also held in some States that in a 
 direct proceeding to set aside or quash an indictment, the testimony 
 of the grand jurors will be received, that twelve of their number did 
 not concur in finding it {Low's Case, 4 Me. 439; Territory v. Hart, 7 
 Mont. 42 & 489 ; People v. S hat tuck, 6 Abb. N. C. 33 ; and so as to other 
 grounds for quashing, see U. S. v. Farrington, 5 F. R. 343); but some 
 States refuse to adopt this rule {Gitckell v. People, 146 111. 175 ; State 
 v. Grady, 84 Mo. 220 ; see, as to a collateral proceeding, People v. Hul- 
 but, supra; and see 16 Am. Dec. 281). Some States declare broadly 
 that the evidence of grand jurors is admissible wherever it is neces- 
 sary, (without disclosing their deliberations or their votes), to uphold 
 public justice or protect private rights. U. S. v. Farrington, 5 F. R. 
 343; Hunter v. Randall, 69 Me. 183; N. H. Ins. Co. v. Healey, 151 
 Mass. 537 ; State v. Coffee, 56 Ct. 399.J 
 
 1 [Sawyer v. Hannibal, etc. R. Co., 37 Mo. 240 ; Moses v. Cromwell, 
 78 Va. 1 ; Palmer v. People, 138 111. 356; cf. People v. Azoff, 105 
 Cal. 632. But the officer in charge of the jury may testify that they 
 rendered such a "chance" or "quotient" verdict, as it is called
 
 Chap. XV.] THE LAW OF EVIDENCE. 287 
 
 his client's express consent, to disclose any communica- 
 tion, oral or documentary, made to him as such legal ad- 
 viser, by or on behalf of his client, during, in the course, 
 and for the purpose of his employment, whether in refer- 
 ence to any matter as to which a dispute has arisen or 
 otherwise, or to disclose any advice given by him to his 
 client during, in the course, and for the purpose of such 
 employment. It is immaterial whether the client is or is 
 not a party to the action in which the question is put to 
 the legal adviser. 1 
 
 ( Wright v. Abbott, 160 Mass. 395 ; Chicago, etc. R. Co. v. Mc Daniel, 
 134 Ind. 166). By some decisions a verdict reached by this method is 
 valid, if the jurors did not agree beforehand to be bound by the 
 quotient, but left its adoption to subsequent deliberation. Luft v. 
 Lingane, 1 7 R . I. 420 j Dana v. Tucker, 4 Johns. 487 ; Knight v. Epsom, 
 62 N. H. 356; see Moses v. Central Pk. etc. R. Co., 3 Misc. 322.] 
 
 1 [Gr. Ev i. §§ 237-246 ; Wh. Ev. i. §§ 576-594 ; N. Y. Code Civ. Pro. 
 §§ 835, 836 ; Bacon v. Frisbie, 80 N. Y. 394 ; Root v. Wright, 84 Id. 72 ; 
 Higbce v. Dresser, 103 Mass. 523 ; Conn. Life Ins. Co. v. Schacfer, 94 
 U. S. 457 ; Earle v. Grout, 46 Vt. 113 ; People v. Barker, 56 111. 299; 
 Sweet v. Owens, 109 Mo. 1; McLellan v. Longfellow, 32 Me. 494 ; cf. 
 Wade v. Ridley, 87 Me. 368 ; Blount v. Kimpton, 155 Mass. 378. The 
 privilege is that of the client alone, and if he voluntarily waives it, the 
 attorney may testify ; other persons have no right to insist upon it 
 {Hunt v. Blackburn, 128 U. S. 464 ; Passmore v. Passmore's Estate, 50 
 Mich. 626). The client's waiver may in some cases be implied, as 
 well as express, as e.g., by failing to object on the trial to the attor- 
 ney's testifying {Sleeper v. Abbott, 60 N. H. 162; Hoyt v. Hoyt, 112 
 N. Y. 493, 515). But the client's becoming himself a witness in the 
 case in his own behalf does not amount to a waiver {Montgomery v. 
 Pickering, 116 Mass. 227; see Duttcnhofer v. State, 34 O. St. 91). If 
 a testator has his attorney become a subscribing witness to his will, 
 this is a waiver and the attorney may testify as to the execution of the 
 will on the proceedings for probate {Re Coleman, 1 1 1 N. Y. 220; Pence 
 v. Waugh, 135 Ind. 143; Denning v. Butcher, 91 la. 425 ; McMaster 
 v. Scrive?i, 85 Wis. 162 ; In re Mullin, 1 10 Cal. 252). 
 
 In some cases, statements made to an attorney with a view to re- 
 taining him have been held privileged, though the relation was never 
 in fact established. Sargent v. Hampden, 38 Me. 581 ; State v. Tally, 
 102 Ala. 25 ; Denver Tramway Co. v. Owens, 20 Col. 107.]
 
 288 A DIGEST OF [Part III. 
 
 This Article does not extend to—, 
 
 (i) Any snch communication as aforesaid made in fur- 
 therance of any criminal purpose, whether such purpose 
 was at the time of the communication known to the pro- 
 fessional adviser or not ; ' 
 
 (2) Any fact observed by any legal adviser, in the course 
 of his employment as such, showing that any crime or 
 fraud has been committed since the commencement of 
 his employment, whether his attention was directed to 
 such fact by or on behalf of his client or not ; a 
 
 (3) Any fact with which such legal adviser became ac- 
 quainted otherwise than in his character as such. 3 The 
 
 1 R. v. Cox &* Railton, 14 Q. B. D. 153. The judgment in this case 
 is that of ten judges in the Court for Crown Cases Reserved, and ex- 
 amines minutely all the cases on the subject. These cases put the 
 rule on the principle, that the furtherance of a criminal purpose can 
 never be part of a legal adviser's business. As soon as a legal 
 adviser knowingly takes part in preparing for a crime, he ceases to 
 act as a lawyer and becomes a criminal, — a conspirator or accessory, 
 as the case may be. [People v. Blakeley, 4 Park. Cr. 176; People v. 
 I an . llstine, 57 Mich. 69 ; State v. Kidd, 89 la. 54 ; Dudley v. Beck, 
 3 Wis. 274 ; Orman v. State, 22 Tex. App. 604 ; cf. State v. Barrows, 
 52 Ct. 323. The English decisions include cases of fraud within this 
 exception {In re Postlethwaite, 35 Ch. D. 722 ; R. v. Cox &•» Railton, 
 supra), and recent American cases have adopted the same doctrine 
 ( Matthews v. Hoagland, 48 X. J. Eq. 455 ; Hajnil v. England, 50 Mo. 
 App. 338; see Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 598). 
 But an attorney cannot disclose statements made to him by his client 
 about a crime committed by the latter, which were not made till after 
 the crime was committed. Alexander v. U, S., 138 U. S. 353.] 
 
 8 [See Illustration (a).] 
 [Or. Ev. i. §§ 244, 245 ; Wh. Ev. i. §§ 588, 589; State v. Fitzgerald, 68 
 Vt. 125 ; as e.g., communications made to him before he became legal 
 adviser, or after the relation ceased {Jennings v. Sturdevant, 140 Ind. 
 641 ; Tkeisen v. Dayton, 82 la. 74; Brady v. State, 39 Neb. 529); or 
 while he was acting in some other capacity than as attorney, as e.g., 
 as a friend, agent, etc. (Coon \. Swan, 30 Vt. 6; Patten v. Glover, 1 
 App. D. C. 466); so as to communications not relating to the pro- 
 fessional employment {Mowell v. Van Buren, 77 Hun, 569; Mc- 
 Donald v. McDonald, 142 Ind. 55 ; State v. Mewherter, 46 la. 88;
 
 Chap. XV.] THE LAW OF EVIDENCE. 289 
 
 expression "legal adviser" includes barristers and solici- 
 tors, 1 their clerks, 2 and interpreters 2 between them and 
 their clients. It does not include officers of a corporation 
 
 Carroll v. Sprague, 59 Cal. 655 ; cf. State v. Hedgepeth, 125 Mo. 14). 
 So an attorney may be required to testify as to many collateral mat- 
 ters : as the name of his client {Harriman v. Jones, 58 N. H. 328), or 
 his residence {Alden v. Goddard, 73 Me. 345), or his signature {Brown 
 v. Jeivett, 120 Mass. 215); or that in collecting a claim he acted for his 
 client {Mulfordv. Mullet; 3 Abb. Dec. 330); or the fact of his employ- 
 ment as attorney {Hampton v. Boy Ian, 46 Hun, 151; Eickman v. Troll, 
 29 Minn. 124); or that he has the client's papers in his hands {Stokoe 
 v. St. Paul, etc. R. Co., 40 Minn. 545 ; see Art. 1 19); so as to communi- 
 cations which are not of a private or confidential nature, or which have 
 ceased to be such {Snow v. Gould, 74 Me. 540; Rosseau v. Bleau, 131 
 N. Y. 177 ; Roper v. State, 58 N. J. L. 420), or as to communications 
 made to him by persons other than his client ( Turner s Estate, 167 Pa. 
 609; State v. Hedgepeth, 125 Mo. 14), and many like matters (see p. 
 290, note 2, post ; Co/nm. v. Goddard, 14 Gray, 402 ; Crosby v. Berger, 
 11 Pai. 377 ; Hughes v. Boone, 102 N. C. 137). 
 
 A communication made to counsel by one party to a controversy 
 while the others are present is not privileged from disclosure in a sub- 
 sequent suit between such parties themselves {Hurlbut v. Hurlbut, 
 128 N. Y. 420 ; Goodwin Cols Appeal, 117 Pa. 514; Colt v. JMcConnell, 
 116 Ind. 249; Lynn v. Lyerle, 113 111. 128 ; Sparks v. Sparks, 51 Kan. 
 195; Cadyv. Walker, 62 Mich. 157; Murphy v. JVaterhouse, 113 Cal. 
 467); so, where two persons employ an attorney in the same business, 
 as to communications made to him by either of them concerning such 
 business {Gulick v. Gitlick, 39 N. J. Eq. 516; Deip"s Estate, 163 Pa. 
 423 ; In re Batter, 79 Cal. 304); but in an action between such persons 
 and a stranger, the communications are protected (Id.; Root v. I Wright, 
 84 N. Y. 72). 
 
 It is held in some States that, after a testator's death, his attorney 
 may, in support of the will or to carry out the testator's intentions as 
 respects those claiming under him, testify as to directions, communica- 
 tions, etc. made by said testator. Blackburn v. Cratvfords, 3 Wall. 
 ! 75> ! 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 
 
 (<?) [A witness was asked on cross-examination, " Have you ever been 
 
 N. Y. 73 ; People v. Noelke, 94 N. Y. 137 ; Leland v. K7iauth, 47 Mich. 
 508 ; State v. Wells, 54 Kan. 161 ; see cases supra and the Illustrations ; 
 also p. 298, note, ante). 
 
 So a witness may be cross-examined as to facts showing his favor 
 towards the party calling him, his own interest in the case, or his bias, 
 malice, ill-will, prejudice, etc., against the opposite party ; here, also, 
 the judge's discretion governs the range of examination (Illustra- 
 tions (g), (In, (/); Wallace v. Taunton St. Ry., 119 Mass. 91 ; Garn- 
 sey v. Rhodes, 138 N. Y. 461 ; Fitzpatrick v. Riley, 163 Pa. 65 ; County 
 Commrs.w. Minderlein, 67 Md. 567 ; Hinchcliffc x . Koontz, 121 Ind. 
 422 ; Electric Light Co. v. Grant, 90 Mich. 469; People v. Tho?nsoti, 
 92 Cal. 506; see Article 130). So when a. party to an action testifies, 
 he may be cross-examined in like manner. Lamb v. Lamb, 146 N. Y. 
 317; Mears v. Cornwall, 73 Mich. 78.] 
 
 1 A', v. Or/on. See summing-up of Cockburn, C. J., vol. ii. p. 719, etc. 
 
 ■[State x. Ward, 49 Ct. 429. The witness, when he avails himself 
 of his privilege not to answer, is not obliged to explain why he declines 
 to answer. Mcrluzzi v. Gleeson, 59 Md. 214.] 
 
 ^[People v. Irving, 95 N. Y. 541; see People v. McCormick, 135 
 N. V.663.] 
 
 4 [Hanojpv. State, 37 O. St. 178 ; see p. 321, note, supra.}
 
 Chap. XVI.] THE LAW OF EVIDENCE. 323 
 
 in jail, and, if so, what were you sent there for ? " Counsel objected to 
 the question, but the trial court allowed it; and this ruling was held, on 
 appeal, to have been proper.] ' 
 
 (_/") [A witness was asked on cross-examination in a civil action as 
 to his belief in spiritualism. It was a proper exercise of discretion 
 not to allow the question.] - 
 
 (g) [Upon a proceeding to admit a will to probate, a subscribing 
 witness may be asked on cross-examination, in order to show his bias 
 or interest, whether a reward has not been promised to him for his 
 testimony by one of the beneficiaries under the will.] 3 
 
 (h) [On a trial for murder, it was held proper for the prosecution to 
 cross-examine one of the principal witnesses for the defendant in such 
 a way as to show that such witness was devotedly attached to the de- 
 fendant and was, at the time of the homicide, practically one of his 
 household, and that their relations were intimate and confidential.] 4 
 
 (/) [A brought action against a horse-car company to recover dam- 
 ages for an alleged injury caused by being wrongfully thrown off a car 
 platform by the conductor. B, a former car-driver of the company, who 
 had been discharged, testified in A's favor that A was thrown off the 
 car by the conductor. It was held that the defendant might so cross- 
 examine B as to show his hostility to the defendant by bringing out the 
 fact that he had tried to get other employees of the company to make 
 false statements in order to fasten liability upon the company.] 5 
 
 ^ 
 
 Article 129 a. 
 judge's discretion as to cross-examination to credit. 
 
 The judge may in all cases disallow any questions put 
 in cross-examination of any party or other witness which 
 
 1 [McLaughlin v. Mencke, 80 Md. 83 ; see, to the same effect, State 
 v. Pratt, 121 Mo. 566; State v. Alexis, 45 La. Ann. 973; Real v. 
 People, 42 N. Y. 270. In these cases it is held not necessary to prove 
 his conviction for the offence for which he was confined, by the record 
 of conviction. Id.; State v. Martin, 124 Mo. 514; contra, Comm. v. 
 Sullivan, 161 Mass. 59; see page 325, note i,post.] 
 
 2 [Free v. Buckingham, 59 N. H. 219.] 
 
 z [Matter of Will of Snelling, 136 N. Y. 515.] 
 
 4 [People v. Webster, 139 N. Y. 73.] 
 
 5 [Schultz v. Third Ave. R. Co., 89 N. Y. 242.]
 
 334 A DIGEST OF [Part III. 
 
 may appear to him (/. e., the judge) to be vexatious and 
 not relevant to any m'attcr proper to be inquired into in 
 the eause or matter. 1 
 
 Article 130. 
 
 exclusion of evidence to contradict answers to 
 questions testing veracity. 
 
 When a witness under cross-examination has been 
 asked and has answered any question which is relevant 
 to the inquiry only in so far as it tends to shake his credit 
 by injuring his character, no evidence can be given to 
 contradict him, 2 except in the following cases:— 
 
 (1 ) If a witness is asked whether he has been previously 
 convicted of any felony or misdemeanor, and denies or 
 
 1 Rules of Supreme Court, Order xxxvi., Rule 38. I leave Article 129 as 
 it originally stood, because this Order is, after all, only an exception to 
 the rule. " Him " must refer to the judge, as it would otherwise refer to 
 the " party or other witness," which would be absurd [See p. 320, note 2, 
 ante ; La Bean v. People, 34 N. Y. 223; Langley v. Wadsworth, 99 N. Y. 
 61 ; Goins v. Moberfy, 127 .Mo. 1 16. Even if a wide latitude be allow- 
 able in cross-examination, still the witness is entitled to be protected 
 by the court from unnecessary insult and abuse by counsel. Toledo, 
 etc. R. Co v. Williams, -jj 111. 354 ; People v. Ihtrrant, 1 16 Cal. 179.] 
 
 v A. G. v. Hitchcock, 1 Ex. 91, 99-105. See, too, Palmer v. Trower, 
 8 Ex. 247. [Gr. Ev. i. § 449 ; People v. Ware, 29 Hun, 473, 92 N. Y.653 ; 
 People v. Knapp, 42 Mich. 267; Elliott v. Boyles, 31 Pa. 65. It is 
 a general rule as to all collateral and irrelevant inquiries, whether 
 relating to character or not, that the answers given cannot be contra- 
 dicted ; the cross-examining counsel is bound by the answers given ; 
 the reason of the rule is that time may not be taken up with imma- 
 terial issues. People v. Murphy, 135 N. Y. 450 ; Pullen v. Pullen, 43 
 X. J. Eq. 136; Robbins v. Spencer, 121 Ind. 594 > 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<?// Lumber Co., 53 Minn. 360; Huffy. Bennett, 6 N. Y. 
 337 ; Paige v. Carter, 64 Cal. 489). ■ It is not the writing, but the 
 recollection of the witness, that is the evidence in the case {Comm. 
 v. Jeffs, 132 Mass. 5 ; Bigelow v. Hall, 91 N. Y. 145 ; Calloway v. 
 Varner, yj Ala. 541 ; and cases supra). 
 
 (2) Where the witness, after referring to the writing, does not recol- 
 lect the facts, and yet remembers that he made or saw the writing 
 when the facts were fresh in his mind, and that it then stated the 
 facts correctly. The writing may have been made by himself {Dugan 
 v. Mahoney, 11 Allen, 572; Howard x. Mc Donough, ,J N. Y. 592; 
 Adae v. Zangs, 41 la. 536 ; Downer v. Rowell, 24 Vt. 343 ; Kelsea v. 
 Fletcher, 48 N. H. 282 ; see Costello v. C rowell, 133 Mass. 352), or by 
 another person {Davis v. Field, 56 Vt. 426; Chamberlain v. Sands, 
 27 Me. 458; Billingslea v. Smith, jj Md. 504 ; Coffin v. Vincent, 12 
 Cush. 98). In some States the writing is itself evidence in special 
 cases, but not in other States (see Art. 137, note i, post). 
 
 An analogous case is where the facts are such as naturally escape 
 the memory, as items, dates, names, numerous details, etc., and a 
 witness is allowed to use a memorandum thereof as an aid in testify- 
 ing, which he knows and testifies to have been correctly made 
 {Fletcher v. Powers, 131 Mass. 333 ; Brown v. Galesburg Brick Co., 
 132 111. 648 ; Wise v. Phojnix Ins. Co., 101 N. Y. 637 ; King v. Faber, 
 51 Pa. 387 ; Pinney v. Andrus, 41 Vt. 631). 
 
 (3) Where the witness, after referring to the writing, neither recol- 
 lects the facts, nor remembers having 'seen it before, and yet from 
 seeing his handwriting therein (as in signature, contents, or both), is 
 enabled to testify to its genuineness and correctness (Gr. Ev. i. § 437 ; 
 Martin v. Good, 14 Md. 398; Mathias v. 0'Neil,Q$ Mo. 520; Alvord 
 v. Collin, 20 Pick. 418 ; Crittenden x. Rogers, 8 Gray, 452 ; Moots v. 
 State, 21.O. St. 653 ; cf. Parsons v. Mfrs. Ins. Co., 16 Gray, 463 ; Cole 
 x.Jcssup, 10 N. Y. 96). As to the writing being evidence, see next 
 Article, note.] 
 
 1 Sussex Peerage Case, II C. & F. 1 14-17. [People v. Wheeler, 60 
 Cal. 581, 585 ; Healy v. Visalia R. Co., 101 Cal. 585 ; State v. Baldwin, 
 36 Kan. 1, 17.]
 
 Chap. XVI.] THE LAW OF EVIDENCE. 343 
 
 Article 137. 
 right of adverse party as to writing used to refresh 
 
 MEMORY. 
 
 Any writing referred to tinder Article 136 must be pro- 
 duced and shown to the adverse party if he requires it; 
 and such party may, if he pleases, cross-examine the 
 witness thereupon. 1 
 
 1 See Cases in R. N. P. 195. [Gr. Ev. i. § 437 ; Peck v. Valentine, 94 
 N. Y. 571. This is the general rule both as to Case (1), stated in the 
 preceding note (see p. 341, note 1, ante ; Comm. v. Jeffs, 132 Mass. 5 ; 
 Peck v. Lake, 3 Lans. 136; Chute v. State, 19 Minn. 271 ; Duncan v. 
 Seeley, 34 Mich. 369 ; Stanwood v. McLellan, 48 Me. 275 ; McKivitt 
 v. Cone, 30 la. 455), and also as to Case (2) {Dugan v. Mahoney, 11 
 Allen, 573 ; Costello v. Crowell, 133 Mass. 352 ; Adae v. Zangs, 41 la. 
 536 ; see Davis v. Field, 56 Vt. 426). The writing is not itself ad- 
 mitted in evidence (see cases cited ; Taylor v. Chicago, etc. R. Co., 80 
 la. 431). The object of cross-examination is to ascertain when and 
 by whom the writing was made, whether it is such a writing as may 
 properly be used for the purpose, whether the witness's memory is 
 refreshed by every part of it, etc. {Chute v. State, 19 Minn. 271; 
 Comm. v. Burke, 114 Mass. 261). It is in the discretion of the trial 
 court at what stage of the trial this examination shall be made (see 
 last case). So when the witness, under Case (i)^refers to the writing 
 out of court, it has been held matter of judicial discretion whether he 
 shall produce it in court {Comm. v. Lan?ian, 13 Allen, 563 ; see Peck 
 v. Lake, 3 Lans. 136 ; Trustees v. Bledsoe, 5 Ind. 133). 
 
 A different rule is applied in some States in the special case where 
 the witness himself made the writing when the facts were fresh in his 
 mind, and remembers that it was then correct, but cannot, upon now 
 referring to it, testify to the facts from actual recollection ; the original 
 writing (but not a copy) is itself received in evidence, upon his 
 authenticating its genuineness and correctness {McCormick v. Pa. 
 Cent. R. Co., 49 N. Y. 303, 315 ; Kelsea v. Fletcher, 48 N. H. 282 ; Kent 
 v. Mason, 1 111. App. 466 ; Curtis v. Bradley, 65 Ct. 99 ; Battles v. 
 Tallman, 96 Ala. 403 ; cf. Bates v. Preble, 151 U. S. 149 ; Vicksburgh, 
 etc. R. Co. v. O'Brien, 119 U. S. 99; cf. Imhoffx. Richards, 48 Neb. 
 590). But the writing is not evidence, if the witness has present recol- 
 lection (Id.; People v. McLaughlin, 150 N. Y. 365, 392 ; Pinkham v.
 
 344 A DIGEST OF [Part III. 
 
 Article 138. 
 
 giving, as evidence, document called for and produced 
 
 on notice. 
 
 When a party calls for a document which he has given 
 the other party notice to produce, and such document is 
 produced to, and inspected by, the party calling for its 
 production, he is bound to give it as evidence if the 
 party producing it requires him to do so, and if it is or is 
 deemed to be relevant. ' 
 
 Be7iton, 62 N. H. 687 ; contra, Owens v. State, 67 Md. 307 ; cf. Lapham 
 v. Kelly, 35 Vt. 195). 
 
 In Case (3) the writing should be produced in court to examine the 
 witness upon (Gr. Ev. i. § 437 ; Hall v. Ray, 18 N. H. 126 ; Martin v. 
 Good, 14 Md. 398), but is often put in evidence itself, under other rules 
 of the law of evidence {Moots v. State, 21 O. St. 653; Crittenden v. 
 Rogers, 8 Gray, 452). 
 
 A writing made so long after the transaction to which it relates that 
 the facts cannot be deemed to have then been fresh in the witness's mind 
 cannot be used to refresh his recollection (Gr. Ev. i. § 438 ; Howellw. 
 Carden, 99 Ala. 100 ; Joties v. State, 54 O. St. 1 ; Morris v. Lachman, 
 68 Cal. 109; Schuyler Nat. Bk. v. Bullong, 24 Neb. 825); so if its 
 accuracy is justly open to suspicion (Lovell v. Wentworth, 39 O. St. 
 614). Thus a writing made five months after the transaction and by 
 request of a party was not allowed to be used {Spring Garde?i Ins. Co. 
 v. Evans, 15 Md. 54 ; cf. Sivartz v. Chiekering, 58 Md. 290); so of one 
 made twenty months afterwards (Maxwell v. Wilkinson, 113 U. S. 
 656) ; so a witness was not allowed to be referred to his own prior 
 testimony of the same facts which had been given four months after 
 the event. Putnam v. U. S., 162 U. S. 687 ; cf. People v. Palmer, 105 
 Mich. 568.] 
 
 1 Wharam v. Routledge, 1 Esp. 235 ; Calvert v. Flower, 7 C. & P. 
 386. [In some American States this rule is followed (Gr. Ev. i. § 563 ; 
 Ellison v. Cruser, 40 N. J. L. 444 ; Merrill v. Merrill, 67 Me. 70 ; Long 
 v. Drew, 114 Mass. 77 ; Cuslunan v. Coleman, 92 Ga. 772 ; IVallar v. 
 Stewart, 4 Cr. C. C. 532 ; Edison Light Co. v. U. S. Lighting Co., 45 
 F. R. 55; cf. Western Union Tel. Co. v. Nines, 96 Ga. 688; Stitt v. 
 Huidekopers, 17 Wall. 385); but in others it is rejected. Austin v. 
 Thompson, 45 X. H. 113; Smith v. Rents, 131 X. Y. 169; cf. Summers 
 v. JLA'im, 12 S. & R. 405 ; Rumsey v. Lovell, Anth. N. P. 26.]
 
 Chap. XVI.] THE LAW OF EVIDENCE. 345 
 
 Article 139. 
 
 using, as evidence, a document, production of which was. 
 refused on notice. 
 
 When a party refuses to produce a document which he 
 has had notice to produce, he may not afterwards use the 
 document as evidence without the consent of the other 
 party. 1 
 
 1 Doe v. Hodgson, 12 A. & E. 135 ; but see remarks in 2 Ph. Ev. 270. 
 [Gage v. Campbell, 131 Mass. 566; Kingman v. Tirrell, 11 Allen, 97; 
 Mather v. Eureka Co., 118 N. Y. 629; McGuiness v. School District, 
 39 Minn. 499 ; Powell v. Peatistine, 43 S. Car. 403.]
 
 346 A DIGEST OF IPart III. 
 
 CHAPTER XVII. 
 OF DEPOSITIONS. 
 
 Article 140. 
 depositions before magistrates. 
 
 A deposition taken tinder 11 & 12 Vict. c. 42, s. 17, may- 
 be produced and given in evidence at the trial of the 
 person against whom it was taken, 
 
 if it is proved (to the satisfaction of the judge) that the 
 witness is dead, or so ill as not to be able to travel 
 (although there may be a prospect of his recovery) ; ' 
 
 (or, if he is kept out of the way by the person accused,) 2 
 
 or, (probably, if he is too mad to testify,) 3 and 
 
 if the deposition purports to be signed by the justice 
 by or before whom it purports to have been taken ; and 
 
 if it is proved by the person who offers it as evidence 
 that it was taken in the presence of the person accused, 
 and that he, his counsel, or attorney, had a full opportu- 
 nity of cross-examining the witness ; 
 
 Unless it is proved that the deposition was not in fact 
 signed by the justice by whom it purports to be signed, 
 
 (or, that the statement was not taken upon oath ; 
 
 or (perhaps) that it was not read over to or signed by 
 the witness). 4 
 
 1 R. v. Stephenson, L. & C. 165. 
 
 2 R.v.Scaife, 17 Q. B. 773. 
 
 3 Analogy of R. v. Scaife. 
 
 4 1 believe the above to be the effect of 11 & 12 Vict. c. 42, s. 17, as 
 interpreted by the cases referred to, the effect of which is given by the 
 words in parenthesis, also by common practice. Nothing can be more 
 rambling or ill-arranged than the language of the section itself. See
 
 Chap. XVII.] THE LAW OF EVIDENCE. 347 
 
 If there is a prospect of the recovery of a witness 
 proved to be too ill to travel, the judge is not obliged to 
 receive the deposition, but may postpone the trial. 1 
 
 Article 141. 
 depositions under 30 & 31 vict. c. 35, s. 6. 
 
 A deposition taken for the perpetuation of testimony 
 in criminal cases, 2 under 30 & 31 Vict. c. 35, s. 6, may be 
 produced and read as evidence, either for or against the 
 accused, upon the trial of any offender or offence 3 to 
 which it relates — 
 
 if the deponent is proved to be dead, or 
 
 if it is proved that there is no reasonable probability 
 that the deponent will ever be able to travel or to give 
 evidence, and 
 
 if the deposition purports to be signed by the justice 
 by or before whom it purports to be taken, and 
 
 if it is proved to the satisfaction of the court that reason- 
 able notice in writing 4 of the intention to take such depo- 
 sition was served upon the person (whether prosecutor or 
 accused) against whom it was proposed to be read, and 
 
 1 Ph. Ev. 87-100 ; T. E. s. 448, etc. [The depositions to which this 
 Article relates are those taken upon a preliminary examination of a 
 charge of crime before a committing magistrate. Similar rules are 
 established in many States of this country. N. Y. Code Cr. Pro., § 8 ; 
 People v. Fish, 125 N. Y. 136 ; State v. George, 60 Minn. 503 ; State v. 
 Elliott, 90 Mo. 350; People v. Ward, 105 Cal. 652; People v. Dow- 
 digan, 67 Mich. 95 ; Brown v. Conun., 73 Pa. 321 ; Lucas v. State, 96 
 Ala. 51 ; Pittman v. State, 92 Ga. 480 ; State v. Fitzgerald, 63 la. 268 ; 
 Bishop's New Cr. Pro. i. § 1197 ; see p. 109, note, ante.] 
 
 1 R. v. Tail, 2 F. & F. 553. 
 
 8 [Similar statutes providing for the taking of depositions in crimi- 
 nal cases are found in some States. See N. Y. Code Cr. Pro. §§8, 620- 
 657; Mass. Pub. St. c. 212, ss. 40, 41 ; Ohio R. S. ss. 7293, 7294 (7th ed.); 
 Bishop's New Cr. Pro. i. §§ 1 194-1206.] 
 
 3 Sic. - 4 R. v. Shimner, 17 Q. B. D. 323.
 
 348 A DIGEST OF [Part III. 
 
 that such person or his counsel or attorney had or 
 might have had, if he had chosen to be present, full 
 opportunity of cross-examining the deponent. 1 
 
 Article 142. 
 depositions under merchant shipping act, 1854. 
 
 2 Whenever, in the course of any legal proceedings 
 instituted in any part of her Majesty's dominions before 
 any judge or magistrate or before any person authorized 
 by law or by consent of parties to receive evidence, the 
 testimony of any witness is required in relation to the 
 subject-matter of such proceeding, any deposition that 
 such witness may have previously made on oath in 
 relation to the same subject-matter before any justice or 
 magistrate in her Majesty's dominions, or any British 
 consular officer elsewhere, is admissible in evidence, sub- 
 ject to the following restrictions : — 
 
 1. If such proceeding is instituted in the United 
 Kingdom or British possessions, due proof must be given 
 that such witness cannot be found in that kingdom or 
 possession respectively. 
 
 1 30 & 31 Vict. c. 35, s. 6. The section is very long, and as the first 
 part of it belongs rather to the subject of criminal procedure than to 
 the subject of evidence, I have omitted it. The language is slightly 
 altered. I have not referred to depositions taken before a coroner 
 (see 7 Geo. IV. c. 64, s. 4), because the section says nothing about the 
 conditions on which they may be given in evidence. Their relevancy, 
 therefore, depends on the common law principles expressed in Article 
 32. They must be signed by the coroner; but these are matters not 
 of evidence, but of criminal procedure. [See McLain v. Comm., 99 
 Pa. 86.] 
 
 4 17 & 18 Vict. c. 104, s. 270. There are some other cases in which 
 depositions are admissible by statute, but they hardly belong to the 
 Law of Evidence.
 
 Chap. XVII.] THE LAW OF EVIDENCE. 349 
 
 2. If such deposition was made in the United King- 
 dom, it is not admissible in any proceeding instituted in 
 the United Kingdom. r 
 
 3. If the deposition was made in any British posses- 
 sion, it is not admissible in any proceeding instituted in 
 the same British possession. 
 
 4. If the proceeding is criminal, the deposition is not 
 admissible unless it was made in the presence of the 
 person accused. 
 
 Every such deposition must be authenticated by the 
 signature of the judge, magistrate, or consular officer 
 before whom it was made. Such judge, magistrate, or 
 consular officer must, when the deposition is taken in a 
 criminal matter, certify (if the fact is so) that the accused 
 was present at the taking thereof ; but it is not necessary 
 in any case to prove the signature or the official character 
 of the person appearing to have signed any such 
 deposition. 
 
 In any criminal proceeding the certificate aforesaid is 
 (unless the contrary is proved) sufficient evidence of the 
 accused having been present in manner thereby certified. 
 
 Nothing in this Article contained affects any provision 
 by Parliament or by any local legislature as to the admis- 
 sibility of depositions or the practice of any court accord- 
 ing to which depositions not so authenticated are admis- 
 sible as evidence.
 
 35o A DIGEST OF [Part III. 
 
 CHAPTER XVIII. 
 
 OF IMPROPER ADMISSION AND REJECTION OF 
 EVIDENCE. 
 
 Article 143. 
 
 A new trial will not be granted in any civil action on the 
 ground of the improper admission or rejection of evidence, 
 unless, in the opinion of the court to which the applica- 
 tion is made, some substantial wrong or miscarriage has 
 been thereby occasioned in the trial of the action. 1 
 
 If in a criminal case evidence is improperly rejected 
 or admitted, there is no remedy, unless the prisoner is 
 convicted, and unless the judge, in his discretion, states a 
 case for the Court for Crown Cases Reserved ; but if that 
 court is of opinion that any evidence was improperly 
 admitted or rejected, it must set aside the conviction. 2 
 
 1 Rules of Supreme Court, Order xxxix. 6. [If error has been com- 
 mitted in admitting or rejecting evidence but can have wrought no 
 prejudice, it is no ground for granting a new trial in a civil action. 
 McGean v. Manhattan R. Co., 117 N. Y. 219 ; Hornbuckle v. Stafford, 
 in U.S. 389 ; Gilbert v. Moline Co., 1 19 U. S. 491 ; Bulkley v. Devine, 
 127 111. 406; Wingv. Chesterfield, 116 Mass. 353; Girard Ins. Co. v. 
 Marr, 46 Pa. 504 ; Ha»i v. Wisconsin, etc. R. Co., 61 la. 716.] 
 
 ■[R. v. Gibson, 18 Q. B. D. 537. In this country, it is a general 
 rule in criminal cases that a new trial will not be granted for the 
 erroneous admission or rejection of evidence, where it clearly 
 appears that the defendant could not have been prejudiced thereby. 
 People v. Strait, 154 N. Y. 165 ; Genz v. State, 59 N. J. L. 488 ; Ryan 
 v. State, 83 Atl. R. (N. J.) 672 ; Wallace v. People, 159 111. 446; State 
 v. McCaffrey, 63 la. 479; People v. Marshall, 112 Cal. 422; Bishop's 
 New Cr. Pro. i. S 1276.]
 
 Notes.] THE LAW OF EVIDENCE. 351 
 
 APPENDIX OF NOTES. 
 
 NOTE I. 
 (to Article i.) 
 
 The definitions are simply explanations of the senses in which the 
 words defined are used in this work. They will be found, however, if 
 read in connection with my ' Introduction to the Indian Evidence Act,' 
 to explain the manner in which it is arranged. 
 
 I use the word "presumption" in the sense of a presumption of 
 law capable of being rebutted. A presumption of fact is simply an 
 argument. A conclusive presumption I describe as conclusive proof. 
 Hence the few presumptions of law which I have thought it necessary 
 to notice are the only ones I have to deal with. 
 
 In earlier editions of this work I gave the following definition of 
 relevancy: 
 
 "Facts, whether in issue or not, are relevant to each other when 
 one is, or probably may be, or probably may have been — 
 
 the cause of the other; 
 
 the effect of the other; 
 
 an effect of the same cause; 
 
 a cause of the same effect: 
 or when the one shows that the other must or cannot have occurred, 
 or probably does or did exist, or not; 
 
 or that any fact does or did exist, or not, which in the common 
 course of events would either have caused or have been caused by the 
 other; 
 
 provided that such facts do not fall within the exclusive rules con-
 
 352 A DIGEST OF [Notes. 
 
 tained in chapters iii., iv., v., vi.; or that they do fall within the ex- 
 ceptions to those rules contained in those chapters." ' 
 
 This was taken (with some verbal alterations) from a pamphlet 
 called 'The Theory of Relevancy for the purpose of Judicial Evi- 
 dence, by George Clifford Whitworth, Bombay Civil Service. Bom- 
 bay, 1875.' 
 
 The 7th section of the Indian Evidence Act is as follows: "Facts 
 which are the occasion, cause or effect, immediate or otherwise, of 
 relevant facts or facts in issue, or which constitute the state of things 
 under which they happened, or which afforded an opportunity for 
 their occurrence or transaction, are relevant." 
 
 The nth section is as follows : — 
 
 " Facts not otherwise relevant are relevant ; 
 
 " ( 1 ) If they are inconsistent with any fact in issue or relevant fact ; 
 
 "(2) If by themselves, or in connection with other facts, they make 
 
 1 [In the earlier editions Mr. Stephen also gave the following excel- 
 lent illustrations of relevancy as thus defined: 
 
 "(a) A's death is caused by his taking poison. The administration 
 of the poison is relevant to A's death as its cause. A's death is 
 relevant to the poisoning as its effect. 
 
 "(b) A and B each eat from the same dish and each exhibit 
 symptoms of the same poison. A's symptoms and B's symptoms are 
 relevant to each other as effects of the same cause. 
 
 "(c) The question is, whether A died of the effects of a railway 
 accident. 
 
 "Facts tending to show that his death was caused by inflammation 
 of the membranes of the brain, which probably might be caused by 
 the accident; and facts tending to show that his death was caused 
 by typhoid fever, which would have nothing to do with the accident, 
 are relevant to each other as possible causes of the same effect, — 
 A's death." [See Pitts v. State, 43 Miss. 472; Comm. v. Ryan, 134 
 Mass. 223; Knox v. Wheelock, 54 Vt. 150; State v. Lentz, 45 Minn. 
 
 1 77-] 
 
 "(d) A is charged with committing a crime in London on a given 
 day. The fact that on that day he was at Calcutta is relevant, as 
 proving that he could not have committed the crime. 
 
 "(e) The question is, whether A committed a crime. 
 
 " The circumstances are such that it must have been committed
 
 Notes.] THE LAW OF EVIDENCE. 
 
 the existence or non-existence of any fact in issue, or relevant fact, 
 highly probable or improbable." 
 
 In my 'Introduction to the Indian Evidence Act,' I examined at 
 length the theory of judicial evidence, and tried to show that the the- 
 ory of relevancy is only a particular case of the process of induction, 
 and that it depends on the connection of events as cause and effect. 
 This theory does not greatly differ from Bentham's, though he does 
 not seem to me to have grasped it as distinctly as if he had lived to 
 study Mill's Inductive Logic. 
 
 My theory was expressed too widely in certain parts, and not widely 
 enough in others ; and Mr. Whitworth's pamphlet appeared to me to 
 have corrected and completed it in a judicious manner. I accordingly 
 embodied his definition of relevancy, with some variations and addi- 
 tions, in the text of the first edition. The necessity of limiting in some 
 such way the terms of the nth section of the Indian Evidence Act 
 may be inferred from a judgment by Mr. Justice West (of the High 
 Court of Bombay), in the case of R. v. Parbhudas and others, printed 
 in the 'Law Journal,' May 27, 1876. I have substituted the present 
 definition for it, not because I think it wrong, but because I think it 
 
 either by A, B, or C. Every fact which shows this, and every fact 
 which shows that neither B nor C committed it, or that either of them 
 did or might have committed it, is relevant. 
 
 "(f) B, a person in possession of a large sum of money, is mur- 
 dered and robbed. The question is, whether A murdered him. The 
 fact that after the murder A was or was not possessed of a sum 
 of money unaccounted for is relevant, as showing the existence 
 or the absence of a fact which, in the common course of events, 
 would be caused by A's committing the murder. A's knowledge 
 that B was in possession of the money would be relevant as a 
 fact, which, in the ordinary course of events, might cause or be 
 one of the causes of the murder." [See Comm. v. Sturtivant, 117 
 Mass. 122; Williams v. Comm., 29 Pa. 102; Kennedy v. People, 39 
 N. Y. 245.] 
 
 "(g) A is murdered in his own house at night. The absence of 
 marks of violence to the house is relevant to the question, whether the 
 murder was committed by a servant, because it shows the absence of 
 an effect which would have been caused by its being committed by a 
 stranger."]
 
 354 * A DIGEST OF [Notes. 
 
 gives rather the principle on which the rule depends than a convenient 
 practical rule. 
 
 As to the coincidence of this theory with English law, I can only say 
 that it will be found to supply a key which wiJl explain all that is said 
 on the subject of circumstantial evidence by the writers who have treat- 
 ed of that subject. Mr. Whitworth goes through the evidence given 
 against the German, Muller, executed for murdering Mr. Briggs on the 
 North London Railway, and shows how each item of it can be referred 
 to one or the other of the heads of relevancy which he discusses. 
 
 The theory of relevancy thus expressed would, I believe, suffice to 
 solve every question which can arise upon the subject ; but the legal 
 rules based upon an unconscious apprehension of the theory exceed 
 it at some points and fall short of it at others. 
 
 NOTE II. 
 (to Article 2.) 
 
 See 1 Ph. Ev. 493, &c; Best, ss. in and 251; T. E. chap. ii. pt. ii. 
 
 For instances of relevant evidence held to be insufficient for the 
 purpose for which it was tendered, on the ground of remoteness, see 
 R. v. , 2 C. & P. 459 ; and Mann v. Langton, 3 A. & E. 699. 
 
 Mr. Taylor (s. 867) adopts from Professor Greenleaf the statement 
 that "the law excludes on public grounds . . . evidence which is 
 indecent or offensive to public morals, or injurious to the feelings of 
 third persons." The authorities given for this are actions on wagers 
 which the court refused to try, or in which they arrested judgment, 
 because the wagers were in themselves impertinent and offensive, as, 
 for instance, a wager as to the sex of the Chevalier D'Eon {Da Costa 
 v.Jones, Cowp. 729). No action now lies upon a wager, and I can find 
 no authority for the proposition advanced by Professor Greenleaf. I 
 know of no case in which a fact in issue, or relevant to an issue, which 
 the court is bound to try can be excluded merely because it would 
 pain some one who is a stranger to the action. Indeed, in Da Costa 
 v. Jones, Lord Mansfield said expressly, " Indecency of evidence is no 
 objection to its being received where it is necessary to the decision of
 
 Notes.] THE LAW OF EVIDENCE. 355 
 
 a civil or criminal right" (p. 734). (See Article 129, and Note XLVI.) 
 [See Melvin v. Melvin, 58 N. H. 569; Cothran v. Ellis, 125 111. 496.] 
 
 NOTE III. 
 (to Article 4.) 
 
 On this subject see also 1 Ph. Ev. 157-164; T. E. ss. 527-532; Best, 
 s. 508 ; 3 Russ. on Crimes, by Greaves, 161-7. (See, too, The Queen's 
 Case, 2 B. & B. 309-10.) 
 
 The principle is substantially the same as that of principal and ac- 
 cessory, or principal and agent. When various persons conspire to 
 commit an offence, each makes the rest his agents to carry the plan 
 into execution. (See, too, Article 17, Note XI.) 
 
 NOTE IV. 
 (to Article 5.) 
 
 The principle is fully explained and illustrated in Malcohnson v. 
 O'Dea, 10 H. L. C. 593. See particularly the reply to the questions 
 put by the House of Lords to the Judges, delivered by Willes, J.,611- 
 622. [See Boston v. Richardson, 105 Mass. 351, 371.] 
 
 See also 1 Ph. Ev. 234-9; T. E. ss. 593-601; Best, s. 499. 
 
 Mr. Phillips and Mr. Taylor treat this principle as an exception to 
 the rule excluding hearsay. They regard the statements contained in 
 the title-deeds as written statements made by persons not called as 
 witnesses. I think the deeds must be regarded as constituting the 
 transactions which they effect; and in the case supposed in the text, 
 those transactions are actually in issue. When it is asserted that land 
 belongs to A, what is meant is, that A is entitled to it by a series of 
 transactions of which his title-deeds are by law the exclusive evidence 
 (see Article 40). The existence of the deeds is thus the very fact 
 which is to be proved. 
 
 Mr. Best treats the case as one of "derivative evidence," an expres- 
 sion which does not appear to me felicitous.
 
 356 A DIGEST OF [Notes. 
 
 NOTE V. 
 (to Article 8.) 
 
 The items of evidence included in this Article are often referred to 
 by the phrase "res gestae," which seems to have come into use on ac- 
 count of its convenient obscurity. The doctrine of " res gestae " was 
 much discussed in the case of Doe v. Tatham (p. 79, &c). In the 
 course of the argument, Bosanquet, J., observed, " How do you trans- 
 late res gestae? gestae, by whom?" Parke, B., afterward observed, 
 "The acts by whomsoever done are res gestae, if relevant to the mat- 
 ter in issue. But the question is, what are relevant?" (7 A. & E. 
 353.) In delivering his opinion to the House of Lords, the same Judge 
 laid down the rule thus : "Where any facts are proper evidence upon 
 an issue " (i. e., when they are in issue, or relevant to the issue) " all oral 
 or written declarations which can explain such facts may be received 
 in evidence." (Same Case, 4 Bing. N. C. 548.) The question asked 
 by Baron Parke goes to the root of the whole subject, and I have tried 
 to answer it at length in the text, and to give it the prominence in the 
 statement of the law which its importance deserves. 
 
 Besides the cases cited in the Illustrations, see cases as to statements 
 accompanying acts collected in 1 Ph. Ev. 152-7, and T. E. ss. 521, 528. 
 I have stated, in accordance with R. v. IValker, 2 M. & R. 212, that the 
 particulars of a complaint are not admissible ; but I have heard Willes, 
 }., rule that they were on several occasions, vouching Parke, B., as his 
 authority. R. v. Walker was decided by Parke, B., in 1839. Though 
 he excluded the statement, he said, "The sense of the thing certainly 
 is, that the jury should in the first instance know the nature of the 
 complaint made by the prosecutrix, and all that she then said. But 
 for reasons which I never could understand, the usage has obtained 
 that the prosecutrix's counsel should only inquire generally whether a 
 complaint was made by the prosecutrix of the prisoner's conduct to- 
 wards her, leaving the prisoner's counsel to bring before the jury the 
 particulars of that complaint by cress-examination."
 
 Notes.] THE LAW OF EVIDENCE. 357 
 
 Lord Bramwell was in the habit, during the latter part of his judi- 
 cial career, of admitting the complaint itself, and other judges have 
 sometimes done the same. The practice is certainly in accordance 
 with common sense. 
 
 NOTE VI. 
 
 (to Articles 10, n, 12.) 
 
 Article 10 is equivalent to the maxim, "Res inter alios acta alteri 
 nocere non debet," which is explained and commented on in Best, ss. 
 506-510 (though I should scarcely adopt his explanation of it), and by 
 Broom ('Maxims,' 954-968). The application of the maxim to the 
 Law of Evidence is obscure, because it does not show how uncon- 
 nected transactions should be supposed to be relevant to each other. 
 The meaning of the rule must be inferred from the exceptions to it 
 stated in Articles 11 and 12, which show that it means, You are not to 
 draw inferences from one transaction to another which is not specifi- 
 cally connected with it merely because the two resemble each other. 
 They must be linked together by the chain of cause and effect in 
 some assignable way before you can draw your inference. 
 
 In its literal sense the maxim also fails, because it is not true that a 
 man cannot be affected by transactions to which he is not a party. Il- 
 lustrations to the contrary are obvious and innumerable ; bankruptcy, 
 marriage, indeed every transaction of life, would supply them. 
 
 The exceptions to the rule given in Articles 1 1 and 12 are general- 
 ized from the cases referred to in the Illustrations. It is important to 
 observe that though the rule is expressed shortly, and is sparingly 
 illustrated, it is of very much greater importance and more frequent 
 application than the exceptions. It is indeed one of the most char- 
 acteristic and distinctive parts of the English Law of Evidence, for 
 this is the rule which prevents a man charged with a particular of- 
 fence from having either to submit to imputations which in many 
 cases would be fatal to him, or else to defend every action of his 
 whole life in order to explain his conduct on the particular occasion. 
 A statement of the Law of Evidence which did not give due promi-
 
 358 A DIGEST OF [Notes. 
 
 nence to the four great exclusive rules of evidence of which this is 
 one would neither represent the existing law fairly nor in my judg- 
 ment improve it. 
 
 The exceptions to the rule apply more frequently to criminal than 
 to civil proceedings, and in criminal cases the courts are always 
 disinclined to run the risk of prejudicing the prisoner by permitting 
 matters to be proved which tend to show in general that he is a 
 bad man, and so likely to commit a crime. In each of the cases by 
 which Article 12 is illustrated, the evidence admitted went to prove 
 the true character of facts which, standing alone, might naturally 
 have been accounted for on the supposition of accident, — a suppo- 
 sition which was rebutted by the repetition of similar occurrences. 
 In the case of R. v. Gray (Illustration (a)), there were many other 
 circumstances which would have been sufficient to prove the 
 prisoner's guilt, apart from the previous fires. That part of the 
 evidence, indeed, seemed to have little influence on the jury. Gar- 
 ner's Case (Illustration (c), note) was an extraordinary one, and its 
 result was in every way unsatisfactory. Some account of this case 
 will be found in the evidence given by me before the Commission 
 on Capital Punishments which sat in 1866. 
 
 NOTE VII. 
 (to Article 13.) 
 
 As to presumptions arising from the^course of office or business, see 
 Best, s. 403; 1 Ph. Ev. 480-4; T. E. s. 147. The presumption, 
 " Omnia esse rite acta," also applies. See Broom's ' Maxims,' 942 ; 
 Best, ss. 353-365 ; T. E. s. 124, &c. ; 1 Ph. Ev. 480; and Stark. 757, 
 763- 
 
 NOTE VIII. 
 (to Article 14.) 
 
 The unsatisfactory character of the definitions usually given of 
 hearsay is well known. See Best, s. 495; T. E. ss. 507-510. The
 
 Notes.] THE LAW OF EVIDENCE. 359 
 
 definition given by Mr. Phillips sufficiently exemplifies it : " When a 
 witness, in the course of stating what has come under the cognizance 
 of his own senses concerning a matter in dispute, states the language 
 of others which he has heard, or produces papers which he identifies 
 as being written by particular individuals, he offers what is called 
 hearsay evidence. This matter may sometimes be the very matter 
 in dispute," etc. (1 Ph. Ev. 143). If this definition is correct, the 
 maxim, " Hearsay is no evidence," can only be saved from the 
 charge of falsehood by exceptions which make nonsense of it. By 
 attaching to it the meaning given in the text, it becomes both in- 
 telligible and true. There is no real difference between the fact that 
 a man was heard to say this or that, and any other fact. Words 
 spoken may convey a threat, supply the motive for a crime, con- 
 stitute a contract, amount to slander, etc., etc. ; and if relevant or in 
 issue, on these or other grounds, they must be proved, like other 
 facts, by the oath of some one who heard them. The important 
 point to remember about them is that bare assertion must not, 
 generally speaking, be regarded as relevant to the truth of the 
 matter asserted. 
 
 The doctrine of hearsay evidence was fully discussed by many of 
 the judges in the case of Doe d. Wright v. Tatham on the different 
 occasions when that case came before the court (see 7 A. & E. 313- 
 408 ; 4 Bing. N. C. 489-573). The question was whether letters ad- 
 dressed to a deceased testator, implying that the writers thought him 
 sane, but not acted upon by him, could be regarded as relevant to 
 his sanity, which was the point in issue. The case sets the strin- 
 gency of the rule against hearsay in a light which is forcibly illus- 
 trated by a passage in the judgment of Baron Parke (7 A. & E. 
 385-8), to the following effect : — He treats the letters as " statements 
 of the writers, not on oath, of the truth of the matter in question, 
 with this in addition, that they have acted upon the statements on 
 the faith of their being true by their sending the letters to the 
 testator." He then goes through a variety of illustrations which 
 had been suggested in argument, and shows that in no case ought
 
 360 A DIGEST OF [Notes. 
 
 such statements to be regarded as relevant to the truth of the matter 
 stated, even when the circumstances were such as to give the 
 strongest possible guarantee that such statements expressed the 
 honest opinions of the persons who made them. Amongst others he 
 mentions the following: — "The conduct of the family or relations 
 of a testator taking the same precautions in his absence as if he 
 were a lunatic ; his election in his absence to some high and re- 
 sponsible office ; the conduct of a physician who permitted a will to 
 be executed by a sick testator ; the conduct of a deceased captain on 
 a question of seaworthiness, who, after examining every part of a 
 vessel, embarked in it with his family; all these, when deliberate- 
 ly considered, are, with reference to the matter in issue in each 
 case, mere instances of hearsay evidence, — mere statements, not 
 on oath, but implied in or vouched by the actual conduct of persons 
 by whose acts the litigant parties are not to be bound." All these 
 matters are therefore to be treated as irrelevant to the questions 
 at issue. 
 
 These observations make the rule quite distinct, but the reason 
 suggested for it in the concluding words of the passage extracted 
 appears to be weak. That passage implies that hearsay is ex- 
 cluded because no one "ought to be bound by the act of a 
 stranger." That no one shall have power to make a contract 
 for another, or commit a crime for which that other is to be re- 
 sponsible, without his authority, is obviously reasonable, but it is 
 not so plain why A's conduct should not furnish good grounds for 
 inference as to B's conduct, though it was not authorized by B. 
 The importance of shortening proceedings, the importance of com- 
 pelling people to procure the best evidence they can, and the 
 importance of excluding opportunities of fraud, are considerations 
 which probably justify the rule excluding hearsay ; but Baron 
 Parke's illustrations of its operation clearly prove that in some 
 cases it excludes the proof of matter which, but for it, would be 
 regarded not only as relevant to particular facts, but as good grounds 
 for believing in their existence.
 
 Notes.] THE LAW OF EVIDENCE. 361 
 
 NOTE IX. 
 
 (to Article 15.) 
 
 This definition is intended to exclude admissions by pleading, ad- 
 missions which, if so pleaded, amount to estoppels, and admissions 
 made for the purposes of a cause by the parties or their solicitors. 
 These subjects are usually treated of by writers on evidence ; but 
 they appear to me to belong to other departments of the law. The 
 subject, including the matter which I omit, is treated at length in 
 1 Ph. Ev. 308-401, and T. E. ss. 653-788. A vast variety of cases 
 upon admissions of every sort may be found by referring to Roscoe, 
 N. P. (Index, under the word Admissions.) It may perhaps be well 
 to observe that when an admission is contained in a document, or 
 series of documents, or when it forms part of a discourse or conver- 
 sation, so much and no more of the document, series of documents, 
 discourse or conversation, must be proved as is necessary for the full 
 understanding of the admission, but the judge or jury may of course 
 attach degrees of credit to different parts of the matter proved. 
 This rule is elaborately discussed and illustrated by Mr. Taylor, 
 ss. 655-665. It has lost much of the importance which attached to it 
 when parties to actions could not be witnesses, but could be com- 
 pelled to make admissions by bills of discovery. The ingenuity of 
 equity draughtsmen was under that system greatly exercised in 
 drawing answers in such a form that it was impossible to read part 
 of them without reading the whole, and the ingenuity of the court 
 was at least as much exercised in countermining their ingenious 
 devices. The power of administering interrogatories, and of ex- 
 amining the parties directly, has made great changes in these matters. 
 
 NOTE X. 
 
 (to Article 16.) 
 
 As to admissions by parties, see Moriarty v. L. C. &*> D. Railway, 
 L. R. 5 Q. B. 320, per Blackburn, J. ; Alner v. George, 1 Camp. 392; 
 Bauerman v. Radenius, 7 T. R. 663.
 
 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 <S^36 Vict, c 77, s. 34 (4) 
 
 35 6-36 Vict. c. 94, s. 51 (4) 
 38 &* 39 Vict. c. 63, s. 21 . . 
 
 38 &*> 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. 
 
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